Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G. R. No. 160188              June 21, 2007

ARISTOTEL VALENZUELA y NATIVIDAD, petitioner,

vs.
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS NACHURA, respondents.

DECISION

TINGA, J.:

This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner
effectively concedes having performed the felonious acts imputed against him, but instead insists
that as a result, he should be adjudged guilty of frustrated theft only, not the felony in its
consummated stage of which he was convicted. The proposition rests on a common theory
expounded in two well-known decisions 1 rendered decades ago by the Court of Appeals, upholding
the existence of frustrated theft of which the accused in both cases were found guilty. However, the
rationale behind the rulings has never been affirmed by this Court.

As far as can be told,2 the last time this Court extensively considered whether an accused was guilty
of frustrated or consummated theft was in 1918, in People v. Adiao. 3 A more cursory

treatment of the question was followed in 1929, in People v. Sobrevilla, 4 and in 1984, in Empelis v.
IAC.5 This petition now gives occasion for us to finally and fully measure if or how frustrated theft is
susceptible to commission under the Revised Penal Code.

I.

The basic facts are no longer disputed before us. The case stems from an Information 6 charging
petitioner Aristotel Valenzuela (petitioner) and Jovy Calderon (Calderon) with the crime of theft. On
19 May 1994, at around 4:30 p.m., petitioner and Calderon were sighted outside the Super Sale
Club, a supermarket within the ShoeMart (SM) complex along North EDSA, by Lorenzo Lago (Lago),
a security guard who was then manning his post at the open parking area of the supermarket. Lago
saw petitioner, who was wearing an identification card with the mark "Receiving Dispatching Unit
(RDU)," hauling a push cart with cases of detergent of the well-known "Tide" brand. Petitioner
unloaded these cases in an open parking space, where Calderon was waiting. Petitioner then
returned inside the supermarket, and after five (5) minutes, emerged with more cartons of Tide
Ultramatic and again unloaded these boxes to the same area in the open parking space. 7

Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and directed it
towards the parking space where Calderon was waiting. Calderon loaded the cartons of Tide
Ultramatic inside the taxi, then boarded the vehicle. All these acts were eyed by Lago, who
proceeded to stop the taxi as it was leaving the open parking area. When Lago asked petitioner for a
receipt of the merchandise, petitioner and Calderon reacted by fleeing on foot, but Lago fired a
warning shot to alert his fellow security guards of the incident. Petitioner and Calderon were
apprehended at the scene, and the stolen merchandise recovered. 8 The filched items seized from
the duo were four (4) cases of Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3)
additional cases of detergent, the goods with an aggregate value of ₱12,090.00. 9

Petitioner and Calderon were first brought to the SM security office before they were transferred on
the same day to the Baler Station II of the Philippine National Police, Quezon City, for investigation.
It appears from the police investigation records that apart from petitioner and Calderon, four (4) other
persons were apprehended by the security guards at the scene and delivered to police custody at
the Baler PNP Station in connection with the incident. However, after the matter was referred to the
Office of the Quezon City Prosecutor, only petitioner and Calderon were charged with theft by the
Assistant City Prosecutor, in Informations prepared on 20 May 1994, the day after the incident. 10

After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed having
been innocent bystanders within the vicinity of the Super Sale Club on the afternoon of 19 May 1994
when they were haled by Lago and his fellow security guards after a commotion and brought to the
Baler PNP Station. Calderon alleged that on the afternoon of the incident, he was at the Super Sale
Club to withdraw from his ATM account, accompanied by his neighbor, Leoncio Rosulada. 11 As the
queue for the ATM was long, Calderon and Rosulada decided to buy snacks inside the supermarket.
It was while they were eating that they heard the gunshot fired by Lago, leading them to head out of
the building to check what was

transpiring. As they were outside, they were suddenly "grabbed" by a security guard, thus
commencing their detention.12 Meanwhile, petitioner testified during trial that he and his cousin, a
Gregorio Valenzuela,13 had been at the parking lot, walking beside the nearby BLISS complex and
headed to ride a tricycle going to Pag-asa, when they saw the security guard Lago fire a shot. The
gunshot caused him and the other people at the scene to start running, at which point he was
apprehended by Lago and brought to the security office. Petitioner claimed he was detained at the
security office until around 9:00 p.m., at which time he and the others were brought to the Baler
Police Station. At the station, petitioner denied having stolen the cartons of detergent, but he was
detained overnight, and eventually brought to the prosecutor’s office where he was charged with
theft.14 During petitioner’s cross-examination, he admitted that he had been employed as a "bundler"
of GMS Marketing, "assigned at the supermarket" though not at SM. 15

In a Decision16 promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City,
Branch 90, convicted both petitioner and Calderon of the crime of consummated theft. They were
sentenced to an indeterminate prison term of two (2) years of prision correccional as minimum to
seven (7) years of prision mayor as maximum.17 The RTC found credible the testimonies of the
prosecution witnesses and established the convictions on the positive identification of the accused
as perpetrators of the crime.

Both accused filed their respective Notices of Appeal, 18 but only petitioner filed a brief19 with the Court
of Appeals, causing the appellate court to deem Calderon’s appeal as abandoned and consequently
dismissed. Before the Court of Appeals, petitioner argued that he should only be convicted of
frustrated theft since at the time he was apprehended, he was never placed in a position to freely
dispose of the articles stolen. 20 However, in its Decision dated 19 June 2003,21 the Court of Appeals
rejected this contention and affirmed petitioner’s conviction. 22 Hence the present Petition for
Review,23 which expressly seeks that petitioner’s conviction "be modified to only of Frustrated
Theft."24

Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious
intent and his actual participation in the theft of several cases of detergent with a total value of
₱12,090.00 of which he was charged. 25 As such, there is no cause for the Court to consider a factual
scenario other than that presented by the prosecution, as affirmed by the RTC and the Court of
Appeals. The only question to consider is whether under the given facts, the theft should be deemed
as consummated or merely frustrated.

II.

In arguing that he should only be convicted of frustrated theft, petitioner cites 26 two decisions
rendered many years ago by the Court of Appeals: People v. Diño 27 and People v. Flores.28 Both
decisions elicit the interest of this Court, as they modified trial court convictions from consummated
to frustrated theft and involve a factual milieu that bears similarity to the present case. Petitioner
invoked the same rulings in his appeal to the Court of Appeals, yet the appellate court did not
expressly consider the import of the rulings when it affirmed the conviction.

It is not necessary to fault the Court of Appeals for giving short shrift to the Diño and Flores rulings
since they have not yet been expressly adopted as precedents by this Court. For whatever reasons,

the occasion to define or debunk the crime of frustrated theft has not come to pass before us. Yet
despite the silence on our part, Diño and Flores have attained a level of renown reached by very few
other appellate court rulings. They are comprehensively discussed in the most popular of our
criminal law annotations,29 and studied in criminal law classes as textbook examples of frustrated
crimes or even as definitive of frustrated theft.

More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios that populate
criminal law exams more than they actually occur in real life. Indeed, if we finally say that Diño and
Flores are doctrinal, such conclusion could profoundly influence a multitude of routine theft
prosecutions, including commonplace shoplifting. Any scenario that involves the thief having to exit
with the stolen property through a supervised egress, such as a supermarket checkout counter or a
parking area pay booth, may easily call for the application of Diño and Flores. The fact that lower
courts have not hesitated to lay down convictions for frustrated theft further validates that Diño and
Flores and the theories offered therein on frustrated theft have borne some weight in our
jurisprudential system. The time is thus ripe for us to examine whether those theories are correct
and should continue to influence prosecutors and judges in the future.

III.

To delve into any extended analysis of Diño and Flores, as well as the specific issues relative to
"frustrated theft," it is necessary to first refer to the basic rules on the three stages of crimes under
our Revised Penal Code.30

Article 6 defines those three stages, namely the consummated, frustrated and attempted felonies. A
felony is consummated "when all the elements necessary for its execution and accomplishment are
present." It is frustrated "when the offender performs all the acts of execution which would produce
the felony as a consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator." Finally, it is attempted "when the offender commences the
commission of a felony directly by overt acts, and does not perform all the acts of execution which
should produce the felony by reason of some cause or accident other than his own spontaneous
desistance."

Each felony under the Revised Penal Code has a "subjective phase," or that portion of the acts
constituting the crime included between the act which begins the commission of the crime and the
last act performed by the offender which, with prior acts, should result in the consummated
crime.31 After that point has been breached, the subjective phase ends and the objective phase
begins.32 It has been held that if the offender never passes the subjective phase of the offense, the
crime is merely attempted.33 On the other hand, the subjective phase is completely passed in case of
frustrated crimes, for in such instances, "[s]ubjectively the crime is complete." 34

Truly, an easy distinction lies between consummated and frustrated felonies on one hand, and
attempted felonies on the other. So long as the offender fails to complete all the acts of execution
despite commencing the commission of a felony, the crime is undoubtedly in the attempted stage.
Since the specific acts of execution that define each crime under the Revised Penal Code are
generally enumerated in the code itself, the task of ascertaining whether a crime is attempted only
would need to compare the acts actually performed by the accused as against the acts that
constitute the felony under the Revised Penal Code.

In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial

concession that all of the acts of execution have been performed by the offender. The critical
distinction instead is whether the felony itself was actually produced by the acts of execution. The
determination of whether the felony was "produced" after all the acts of execution had been
performed hinges on the particular statutory definition of the felony. It is the statutory definition that
generally furnishes the elements of each crime under the Revised Penal Code, while the elements in
turn unravel the particular requisite acts of execution and accompanying criminal intent.

The long-standing Latin maxim "actus non facit reum, nisi mens sit rea" supplies an important
characteristic of a crime, that "ordinarily, evil intent must unite with an unlawful act for there to be a
crime," and accordingly, there can be no crime when the criminal mind is wanting. 35 Accepted in this
jurisdiction as material in crimes mala in se,36 mens rea has been defined before as "a guilty mind, a
guilty or wrongful purpose or criminal intent,"37 and "essential for criminal liability."38 It follows that the
statutory definition of our mala in se crimes must be able to supply what the mens rea of the crime
is, and indeed the U.S. Supreme Court has comfortably held that "a criminal law that contains no
mens rea requirement infringes on constitutionally protected rights." 39 The criminal statute must also
provide for the overt acts that constitute the crime. For a crime to exist in our legal law, it is not
enough that mens rea be shown; there must also be an actus reus.40

It is from the actus reus and the mens rea, as they find expression in the criminal statute, that the
felony is produced. As a postulate in the craftsmanship of constitutionally sound laws, it is extremely
preferable that the language of the law expressly provide when the felony is produced. Without such
provision, disputes would inevitably ensue on the elemental question whether or not a crime was
committed, thereby presaging the undesirable and legally dubious set-up under which the judiciary is
assigned the legislative role of defining crimes. Fortunately, our Revised Penal Code does not suffer
from such infirmity. From the statutory definition of any felony, a decisive passage or term is
embedded which attests when the felony is produced by the acts of execution. For example, the
statutory definition of murder or homicide expressly uses the phrase "shall kill another," thus making
it clear that the felony is produced by the death of the victim, and conversely, it is not produced if the
victim survives.

We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal Code, its
elements are spelled out as follows:

Art. 308. Who are liable for theft.— Theft is committed by any person who, with intent to gain but
without violence against or intimidation of persons nor force upon things, shall take personal
property of another without the latter’s consent.

Theft is likewise committed by:

1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or
to its owner;

2. Any person who, after having maliciously damaged the property of another, shall remove or make
use of the fruits or object of the damage caused by him; and

3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which
belongs to another and without the consent of its owner, shall hunt or fish upon the same or shall
gather cereals, or other forest or farm products.

Article 308 provides for a general definition of theft, and three alternative and highly idiosyncratic
means by which theft may be committed.41 In the present discussion, we need to concern ourselves
only with the general definition since it was under it that the prosecution of the accused was
undertaken and sustained. On the face of the definition, there is only one operative act of execution
by the actor involved in theft ─ the taking of personal property of another. It is also clear from the
provision that in order that such taking may be qualified as theft, there must further be present the
descriptive circumstances that the taking was with intent to gain; without force upon things or
violence against or intimidation of persons; and it was without the consent of the owner of the
property.

Indeed, we have long recognized the following elements of theft as provided for in Article 308 of the
Revised Penal Code, namely: (1) that there be taking of personal property; (2) that said property
belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without
the consent of the owner; and (5) that the taking be accomplished without the use of violence
against or intimidation of persons or force upon things. 42

In his commentaries, Judge Guevarra traces the history of the definition of theft, which under early
Roman law as defined by Gaius, was so broad enough as to encompass "any kind of physical
handling of property belonging to another against the will of the owner," 43 a definition similar to that
by Paulus that a thief "handles (touches, moves) the property of another." 44 However, with the
Institutes of Justinian, the idea had taken hold that more than mere physical handling, there must
further be an intent of acquiring gain from the object, thus: "[f]urtum est contrectatio rei fraudulosa,
lucri faciendi causa vel ipsius rei, vel etiam usus ejus possessinisve." 45 This requirement of animo
lucrandi, or intent to gain, was maintained in both the Spanish and Filipino penal laws, even as it has
since been abandoned in Great Britain. 46

In Spanish law, animo lucrandi was compounded with apoderamiento, or "unlawful taking," to
characterize theft. Justice Regalado notes that the concept of apoderamiento once had a
controversial interpretation and application. Spanish law had already discounted the belief that mere
physical taking was constitutive of apoderamiento, finding that it had to be coupled with "the intent to
appropriate the object in order to constitute apoderamiento; and to appropriate means to deprive the
lawful owner of the thing."47 However, a conflicting line of cases decided by the Court of Appeals
ruled, alternatively, that there must be permanency in the taking 48 or an intent to permanently deprive
the owner of the stolen property; 49 or that there was no need for permanency in the taking or in its
intent, as the mere temporary possession by the offender or disturbance of the proprietary rights of
the owner already constituted apoderamiento.50 Ultimately, as Justice Regalado notes, the Court
adopted the latter thought that there was no need of an intent to permanently deprive the owner of
his property to constitute an unlawful taking. 51

So long as the "descriptive" circumstances that qualify the taking are present, including animo
lucrandi and apoderamiento, the completion of the operative act that is the taking of personal
property of another establishes, at least, that the transgression went beyond the attempted stage. As
applied to the present case, the moment petitioner obtained physical possession of the cases of
detergent and loaded them in the pushcart, such seizure motivated by intent to gain, completed
without need to inflict violence or intimidation against persons nor force upon things, and
accomplished without the consent of the SM Super Sales Club, petitioner forfeited the extenuating
benefit a conviction for only attempted theft would have afforded him.

On the critical question of whether it was consummated or frustrated theft, we are obliged to apply
Article 6 of the Revised Penal Code to ascertain the answer. Following that provision, the theft would
have been frustrated only, once the acts committed by petitioner, if ordinarily sufficient to produce
theft as a consequence, "do not produce [such theft] by reason of causes independent of the will of
the perpetrator." There are clearly two determinative factors to consider: that the felony is not
"produced," and that such failure is due to causes independent of the will of the perpetrator. The
second factor ultimately depends on the evidence at hand in each particular case. The first,
however, relies primarily on a doctrinal definition attaching to the individual felonies in the Revised
Penal Code52 as to when a particular felony is "not produced," despite the commission of all the acts
of execution.

So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to inquire as
to how exactly is the felony of theft "produced." Parsing through the statutory definition of theft under
Article 308, there is one apparent answer provided in the language of the law — that theft is already
"produced" upon the "tak[ing of] personal property of another without the latter’s consent."

U.S. v. Adiao53 apparently supports that notion. Therein, a customs inspector was charged with theft
after he abstracted a leather belt from the baggage of a foreign national and secreted the item in his
desk at the Custom House. At no time was the accused able to "get the merchandise out of the
Custom House," and it appears that he "was under observation during the entire
transaction."54 Based apparently on those two circumstances, the trial court had found him guilty,
instead, of frustrated theft. The Court reversed, saying that neither circumstance was decisive, and
holding instead that the accused was guilty of consummated theft, finding that "all the elements of
the completed crime of theft are present."55 In support of its conclusion that the theft was
consummated, the Court cited three (3) decisions of the Supreme Court of Spain, the discussion of
which we replicate below:

The defendant was charged with the theft of some fruit from the land of another. As he was in the act
of taking the fruit[,] he was seen by a policeman, yet it did not appear that he was at that moment
caught by the policeman but sometime later. The court said: "[x x x] The trial court did not err [x x x ]
in considering the crime as that of consummated theft instead of frustrated theft inasmuch as nothing
appears in the record showing that the policemen who saw the accused take the fruit from the
adjoining land arrested him in the act and thus prevented him from taking full possession of the thing
stolen and even its utilization by him for an interval of time." (Decision of the Supreme Court of
Spain, October 14, 1898.)

Defendant picked the pocket of the offended party while the latter was hearing mass in a church.
The latter on account of the solemnity of the act, although noticing the theft, did not do anything to
prevent it. Subsequently, however, while the defendant was still inside the church, the offended party
got back the money from the defendant. The court said that the defendant had performed all the acts
of execution and considered the theft as consummated. (Decision of the Supreme Court of Spain,
December 1, 1897.)

The defendant penetrated into a room of a certain house and by means of a key opened up a case,
and from the case took a small box, which was also opened with a key, from which in turn he took a
purse containing 461 reales and 20 centimos, and then he placed the money over the cover of the
case; just at this moment he was caught by two guards who were stationed in another room near-by.
The court considered this as consummated robbery, and said: "[x x x] The accused [x x x] having
materially taken possession of the money from the moment he took it from the place where it had
been, and having taken it with his hands with intent to appropriate the same, he executed all the acts
necessary to constitute the crime which was thereby produced; only the act of making use of the
thing having been frustrated, which, however, does not go to make the elements of the
consummated crime." (Decision of the Supreme Court of Spain, June 13, 1882.) 56

It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the
criminal actors in all these cases had been able to obtain full possession of the personal property
prior to their apprehension. The interval between the commission of the acts of theft and the
apprehension of the thieves did vary, from "sometime later" in the 1898 decision; to the very moment
the thief had just extracted the money in a purse which had been stored as it was in the 1882
decision; and before the thief had been able to spirit the item stolen from the building where the theft
took place, as had happened in Adiao and the 1897 decision. Still, such intervals proved of no
consequence in those cases, as it was ruled that the thefts in each of those cases was
consummated by the actual possession of the property belonging to another.

In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated
rather than consummated theft. The case is People v. Sobrevilla, 57 where the accused, while in the
midst of a crowd in a public market, was already able to abstract a pocketbook from the trousers of
the victim when the latter, perceiving the theft, "caught hold of the [accused]’s shirt-front, at the same
time shouting for a policeman; after a struggle, he recovered his pocket-book and let go of the
defendant, who was afterwards caught by a policeman." 58 In rejecting the contention that only
frustrated theft was established, the Court simply said, without further comment or elaboration:

We believe that such a contention is groundless. The [accused] succeeded in taking the pocket-
book, and that determines the crime of theft. If the pocket-book was afterwards recovered, such
recovery does not affect the [accused’s] criminal liability, which arose from the [accused] having
succeeded in taking the pocket-book.59

If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the
latter, in that the fact that the offender was able to succeed in obtaining physical possession of the
stolen item, no matter how momentary, was able to consummate the theft.

Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position of
petitioner in this case. Yet to simply affirm without further comment would be disingenuous, as there
is another school of thought on when theft is consummated, as reflected in the Diño and Flores
decisions.

Diño was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years before
Flores. The accused therein, a driver employed by the United States Army, had driven his truck into
the port area of the South Harbor, to unload a truckload of materials to waiting U.S. Army personnel.
After he had finished unloading, accused drove away his truck from the Port, but as he was
approaching a checkpoint of the Military Police, he was stopped by an M.P. who inspected the truck
and found therein three boxes of army rifles. The accused later contended that he had been stopped
by four men who had loaded the boxes with the agreement that they were to meet him and retrieve
the rifles after he had passed the checkpoint. The trial court convicted accused of consummated
theft, but the Court of Appeals modified the conviction, holding instead that only frustrated theft had
been committed.
In doing so, the appellate court pointed out that the evident intent of the accused was to let the
boxes of rifles "pass through the checkpoint, perhaps in the belief that as the truck had already
unloaded its cargo inside the depot, it would be allowed to pass through the check point without
further investigation or checking." 60 This point was deemed material and indicative that the theft had
not been fully produced, for the Court of Appeals pronounced that "the fact determinative of
consummation is the ability of the thief to dispose freely of the articles stolen, even if it were more or
less momentary."61 Support for this proposition was drawn from a decision of the Supreme Court of
Spain dated 24 January 1888 (1888 decision), which was quoted as follows:

Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la

consumacion del delito de hurto es preciso que so haga en circunstancias tales que permitan al
sustractor la libre disposicion de aquella, siquiera sea mas o menos momentaneamente, pues de
otra suerte, dado el concepto del delito de hurto, no puede decirse en realidad que se haya
producido en toda su extension, sin materializar demasiado el acto de tomar la cosa ajena. 62

Integrating these considerations, the Court of Appeals then concluded:

This court is of the opinion that in the case at bar, in order to make the booty subject to the control
and disposal of the culprits, the articles stolen must first be passed through the M.P. check point, but
since the offense was opportunely discovered and the articles seized after all the acts of execution
had been performed, but before the loot came under the final control and disposal of the looters, the
offense can not be said to have been fully consummated, as it was frustrated by the timely
intervention of the guard. The offense committed, therefore, is that of frustrated theft. 63

Diño thus laid down the theory that the ability of the actor to freely dispose of the items stolen at the
time of apprehension is determinative as to whether the theft is consummated or frustrated. This
theory was applied again by the Court of Appeals some 15 years later, in Flores, a case which
according to the division of the court that decided it, bore "no substantial variance between the
circumstances [herein] and in [Diño]."64 Such conclusion is borne out by the facts in Flores. The
accused therein, a checker employed by the Luzon Stevedoring Company, issued a delivery receipt
for one empty sea van to the truck driver who had loaded the purportedly empty sea van onto his
truck at the terminal of the stevedoring company. The truck driver proceeded to show the delivery
receipt to the guard on duty at the gate of the terminal. However, the guards insisted on inspecting
the van, and discovered that the "empty" sea van had actually contained other merchandise as
well.65 The accused was prosecuted for theft qualified by abuse of confidence, and found himself
convicted of the consummated crime. Before the Court of Appeals, accused argued in the alternative
that he was guilty only of attempted theft, but the appellate court pointed out that there was no
intervening act of spontaneous desistance on the part of the accused that "literally frustrated the
theft." However, the Court of Appeals, explicitly relying on Diño, did find that the accused was guilty
only of frustrated, and not consummated, theft.

As noted earlier, the appellate court admitted it found "no substantial variance"
between Diño and Flores then before it. The prosecution in Flores had sought to distinguish that
case from Diño, citing a "traditional ruling" which unfortunately was not identified in the decision
itself. However, the Court of Appeals pointed out that the said "traditional ruling" was qualified by the
words "is placed in a situation where [the actor] could dispose of its contents at once." 66 Pouncing on
this qualification, the appellate court noted that "[o]bviously, while the truck and the van were still
within the compound, the petitioner could not have disposed of the goods ‘at once’." At the same
time, the Court of Appeals conceded that "[t]his is entirely different from the case where a much less
bulk and more common thing as money was the object of the crime, where freedom to dispose of or
make use of it is palpably less restricted," 67 though no further qualification was offered what the effect
would have been had that alternative circumstance been present instead.
Synthesis of the Diño and Flores rulings is in order. The determinative characteristic as to whether
the crime of theft was produced is the ability of the actor "to freely dispose of the articles stolen, even
if it were only momentary." Such conclusion was drawn from an 1888 decision of the Supreme Court
of Spain which had pronounced that in determining whether theft had been consummated, "es
preciso que so haga en circunstancias tales que permitan al sustractor de aquella, siquiera sea mas
o menos momentaneamente." The qualifier "siquiera sea mas o menos momentaneamente" proves
another important consideration, as it implies that if the actor was in a capacity to freely dispose of
the stolen items before apprehension, then the theft could be deemed consummated. Such
circumstance was not present in either Diño or Flores, as the stolen items in both cases were
retrieved from the actor before they could be physically extracted from the guarded compounds from
which the items were filched. However, as implied in Flores, the character of the item stolen could
lead to a different conclusion as to whether there could have been "free disposition," as in the case
where the chattel involved was of "much less bulk and more common x x x, [such] as money x x x." 68

In his commentaries, Chief Justice Aquino makes the following pointed observation on the import of
the Diño ruling:

There is a ruling of the Court of Appeals that theft is consummated when the thief is able to freely
dispose of the stolen articles even if it were more or less momentary. Or as stated in another
case[69 ], theft is consummated upon the voluntary and malicious taking of property belonging to
another which is realized by the material occupation of the thing whereby the thief places it under his
control and in such a situation that he could dispose of it at once. This ruling seems to have been
based on Viada’s opinion that in order the theft may be consummated, "es preciso que se haga en
circumstancias x x x [70 ]"71

In the same commentaries, Chief Justice Aquino, concluding from Adiao and other cases, also
states that "[i]n theft or robbery the crime is consummated after the accused had material
possession of the thing with intent to appropriate the same, although his act of making use of the
thing was frustrated."72

There are at least two other Court of Appeals rulings that are at seeming variance with the Diño and
Flores rulings. People v. Batoon73 involved an accused who filled a container with gasoline from a
petrol pump within view of a police detective, who followed the accused onto a passenger truck
where the arrest was made. While the trial court found the accused guilty of frustrated qualified theft,
the Court of Appeals held that the accused was guilty of consummated qualified theft, finding that
"[t]he facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate that actual taking
with intent to gain is enough to consummate the crime of theft." 74

In People v. Espiritu,75 the accused had removed nine pieces of hospital linen from a supply depot
and loaded them onto a truck. However, as the truck passed through the checkpoint, the stolen
items were discovered by the Military Police running the checkpoint. Even though those facts clearly
admit to similarity with those in Diño, the Court of Appeals held that the accused were guilty of
consummated theft, as the accused "were able to take or get hold of the hospital linen and that the
only thing that was frustrated, which does not constitute any element of theft, is the use or benefit
that the thieves expected from the commission of the offense." 76

In pointing out the distinction between Diño and Espiritu, Reyes wryly observes that "[w]hen the
meaning of an element of a felony is controversial, there is bound to arise different rulings as to the
stage of execution of that felony." 77 Indeed, we can discern from this survey of jurisprudence that the
state of the law insofar as frustrated theft is concerned is muddled. It fact, given the disputed
foundational basis of the concept of frustrated theft itself, the question can even be asked whether
there is really such a crime in the first place.
 IV.

The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not
consummated, theft. As we undertake this inquiry, we have to reckon with the import of this Court’s
1984 decision in Empelis v. IAC.78

As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the
premises of his plantation, in the act of gathering and tying some coconuts. The accused were
surprised by the owner within the plantation as they were carrying with them the coconuts they had
gathered. The accused fled the scene, dropping the coconuts they had seized, and were
subsequently arrested after the owner reported the incident to the police. After trial, the accused
were convicted of qualified theft, and the issue they raised on appeal was that they were guilty only
of simple theft. The Court affirmed that the theft was qualified, following Article 310 of the Revised
Penal Code,79 but further held that the accused were guilty only of frustrated qualified theft.

It does not appear from the Empelis decision that the issue of whether the theft was consummated
or frustrated was raised by any of the parties. What does appear, though, is that the disposition of
that issue was contained in only two sentences, which we reproduce in full:

However, the crime committed is only frustrated qualified theft because petitioners were not able to
perform all the acts of execution which should have produced the felony as a consequence. They
were not able to carry the coconuts away from the plantation due to the timely arrival of the owner. 80

No legal reference or citation was offered for this averment, whether Diño, Flores or the Spanish
authorities who may have bolstered the conclusion. There are indeed evident problems with this
formulation in Empelis.

Empelis held that the crime was only frustrated because the actors "were not able to perform all the
acts of execution which should have produced the felon as a consequence." 81 However, per Article 6
of the Revised Penal Code, the crime is frustrated "when the offender performs all the acts of
execution," though not producing the felony as a result. If the offender was not able to perform all the
acts of execution, the crime is attempted, provided that the non-performance was by reason of some
cause or accident other than spontaneous desistance. Empelis concludes that the crime was

frustrated because not all of the acts of execution were performed due to the timely arrival of the
owner. However, following Article 6 of the Revised Penal Code, these facts should elicit the
conclusion that the crime was only attempted, especially given that the acts were not performed
because of the timely arrival of the owner, and not because of spontaneous desistance by the
offenders.

For these reasons, we cannot attribute weight to Empelis as we consider the present petition. Even if
the two sentences we had cited actually aligned with the definitions provided in Article 6 of the
Revised Penal Code, such passage bears no reflection that it is the product of the considered
evaluation of the relevant legal or jurisprudential thought. Instead, the passage is offered as if it were
sourced from an indubitable legal premise so settled it required no further explication.

Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on theft.
Indeed, we cannot see how Empelis can contribute to our present debate, except for the bare fact
that it proves that the Court had once deliberately found an accused guilty of frustrated theft. Even if
Empelis were considered as a precedent for frustrated theft, its doctrinal value is extremely
compromised by the erroneous legal premises that inform it, and also by the fact that it has not been
entrenched by subsequent reliance.
Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is viable in
this jurisdiction. Considering the flawed reasoning behind its conclusion of frustrated theft, it cannot
present any efficacious argument to persuade us in this case. Insofar as Empelis may imply that
convictions for frustrated theft are beyond cavil in this jurisdiction, that decision is subject to
reassessment.

V.

At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de España was
then in place. The definition of the crime of theft, as provided then, read as follows:

Son reos de hurto:

1. Los que con ánimo de lucrarse, y sin volencia o intimidación en las personas ni fuerza en las
cosas, toman las cosas muebles ajenas sin la voluntad de su dueño.

2. Los que encontrándose una cosa perdida y sabiendo quién es su dueño se la apropriaren co
intención de lucro.

3. Los dañadores que sustrajeren o utilizaren los frutos u objeto del daño causado, salvo los casos
previstos en los artίculos 606, núm. 1.0; 607, núms, 1.0, 2.0 y 3.0; 608, núm. 1.0; 611; 613;
Segundo párrafo del 617 y 618.

It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme Court
decisions were handed down. However, the said code would be revised again in 1932, and several
times thereafter. In fact, under the Codigo Penal Español de 1995, the crime of theft is now simply
defined as "[e]l que, con ánimo de lucro,

tomare las cosas muebles ajenas sin la voluntad de su dueño será castigado" 82

Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, "la libre disposicion" of
the property is not an element or a statutory characteristic of the crime. It does appear that the
principle originated and perhaps was fostered in the realm of Spanish jurisprudence.

The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries on the
1870 Codigo Penal de España. Therein, he raised at least three questions for the reader whether
the crime of frustrated or consummated theft had occurred. The passage cited in Diño was actually
utilized by Viada to answer the question whether frustrated or consummated theft was committed
"[e]l que en el momento mismo de apoderarse de la cosa ajena, viéndose sorprendido, la arroja al
suelo."83 Even as the answer was as stated in Diño, and was indeed derived from the 1888 decision
of the Supreme Court of Spain, that decision’s factual predicate occasioning the statement was
apparently very different from Diño, for it appears that the 1888 decision involved an accused who
was surprised by the employees of a haberdashery as he was abstracting a layer of clothing off a
mannequin, and who then proceeded to throw away the garment as he fled. 84

Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites decisions of
the Supreme Court of Spain that have held to that effect. 85 A few decades later, the esteemed
Eugenio Cuello Calón pointed out the inconsistent application by the Spanish Supreme Court with
respect to frustrated theft.
Hay frustración cuando los reos fueron sorprendidos por las guardias cuando llevaban los sacos de
harino del carro que los conducia a otro que tenían preparado, 22 febrero 1913; cuando el resultado
no tuvo efecto por la intervención de la policia situada en el local donde se realizó la sustracción que
impidió pudieran los reos disponer de lo sustraído, 30 de octubre 1950. Hay "por lo menos"
frustración, si existe apoderamiento, pero el culpale no llega a disponer de la cosa, 12 abril 1930;
hay frustración "muy próxima" cuando el culpable es detenido por el perjudicado acto seguido de
cometer la sustracción, 28 febrero 1931. Algunos fallos han considerado la existencia de frustración
cuando, perseguido el culpable o sorprendido en el momento de llevar los efectos hurtados, los
abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no es admissible, éstos,
conforme a lo antes expuesto, son hurtos consumados. 86

Ultimately, Cuello Calón attacked the very idea that frustrated theft is actually possible:

La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando la cosa queda
de hecho a la disposición del agente. Con este criterio coincide la doctrina sentada últimamente
porla jurisprudencia española que generalmente considera consumado el hurto cuando el culpable
coge o aprehende la cosa y ésta quede por tiempo más o menos duradero bajo su poder. El hecho
de que éste pueda aprovecharse o no de lo hurtado es indiferente. El delito no pierde su carácter de
consumado aunque la cosa hurtada sea devuelta por el culpable o fuere recuperada. No se concibe
la frustración, pues es muy dificil que el que hace cuanto es necesario para la consumación del
hurto no lo consume efectivamente, los raros casos que nuestra jurisprudencia, muy vacilante,
declara hurtos frustrados son verdaderos delitos consumados. 87 (Emphasis supplied)

Cuello Calón’s submissions cannot be lightly ignored. Unlike Viada, who was content with replicating
the Spanish Supreme Court decisions on the matter, Cuello Calón actually set forth his own thought
that questioned whether theft could truly be frustrated, since "pues es muy dificil que el que hace
cuanto es necesario para la consumación del hurto no lo consume efectivamente." Otherwise put, it
would be difficult to foresee how the execution of all the acts necessary for the completion of the
crime would not produce the effect of theft.

This divergence of opinion convinces us, at least, that there is no weighted force in scholarly thought
that obliges us to accept frustrated theft, as proposed in Diño and Flores. A final ruling by the Court
that there is no crime of frustrated theft in this jurisdiction will not lead to scholastic pariah, for such a
submission is hardly heretical in light of Cuello Calón’s position.

Accordingly, it would not be intellectually disingenuous for the Court to look at the question from a
fresh perspective, as we are not bound by the opinions of the respected Spanish commentators,
conflicting as they are, to accept that theft is capable of commission in its frustrated stage. Further, if
we ask the question whether there is a mandate of statute or precedent that must compel us to
adopt the Diño and Flores doctrines, the answer has to be in the negative. If we did so, it would arise
not out of obeisance to an inexorably higher command, but from the exercise of the function of
statutory interpretation that comes as part and parcel of judicial review, and a function that allows
breathing room for a variety of theorems in competition until one is ultimately adopted by this Court.

V.

The foremost predicate that guides us as we explore the matter is that it lies in the province of the
legislature, through statute, to define what constitutes a particular crime in this jurisdiction. It is the
legislature, as representatives of the sovereign people, which determines which acts or combination
of acts are criminal in nature. Judicial interpretation of penal laws should be aligned with what was
the evident legislative intent, as expressed primarily in the language of the law as it defines the
crime. It is Congress, not the courts, which is to define a crime, and ordain its punishment. 88 The
courts cannot arrogate the power to introduce a new element of a crime which was unintended by
the legislature, or redefine a crime in a manner that does not hew to the statutory language. Due
respect for the prerogative of Congress in defining crimes/felonies constrains the Court to refrain
from a broad interpretation of penal laws where a "narrow interpretation" is appropriate. "The Court
must take heed of language, legislative history and purpose, in order to strictly determine the wrath
and breath of the conduct the law forbids."89

With that in mind, a problem clearly emerges with the Diño/Flores dictum. The ability of the offender
to freely dispose of the property stolen is not a constitutive element of the crime of theft. It finds no
support or extension in Article 308, whether as a descriptive or operative element of theft or as the
mens rea or actus reus of the felony. To restate what this Court has repeatedly held: the elements of
the crime of theft as provided for in Article 308 of the Revised Penal Code are: (1) that there be
taking of personal property; (2) that said property belongs to another; (3) that the taking be done with
intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be
accomplished without the use of violence against or intimidation of persons or force upon things. 90

Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent to gain,
of personal property of another without the latter’s consent. While the Diño/Flores dictum is
considerate to the mindset of the offender, the statutory definition of theft considers only the
perspective of intent to gain on the part of the offender, compounded by the deprivation of property
on the part of the victim.

For the purpose of ascertaining whether theft is susceptible of commission in the frustrated stage,
the question is again, when is the crime of theft produced? There would be all but certain unanimity
in the position that theft is produced when there is deprivation of personal property due to its taking
by one with intent to gain. Viewed from that perspective, it is immaterial to the product of the felony
that the offender, once having committed all the acts of execution for theft, is able or unable to freely
dispose of the property stolen since the deprivation from the owner alone has already ensued from
such acts of execution. This conclusion is reflected in Chief Justice Aquino’s commentaries, as
earlier cited, that "[i]n theft or robbery the crime is consummated after the accused had material
possession of the thing with intent to appropriate the same, although his act of making use of the
thing was frustrated."91

It might be argued, that the ability of the offender to freely dispose of the property stolen delves into
the concept of "taking" itself, in that there could be no true taking until the actor obtains such degree
of control over the stolen item. But even if this were correct, the effect would be to downgrade the
crime to its attempted, and not frustrated stage, for it would mean that not all the acts of execution
have not been completed, the "taking not having been accomplished." Perhaps this point could
serve as fertile ground for future discussion, but our concern now is whether there is indeed a crime
of frustrated theft, and such consideration proves ultimately immaterial to that question. Moreover,
such issue will not apply to the facts of this particular case. We are satisfied beyond reasonable
doubt that the taking by the petitioner was completed in this case. With intent to gain, he acquired
physical possession of the stolen cases of detergent for a considerable period of time that he was
able to drop these off at a spot in the parking lot, and long enough to load these onto a taxicab.

Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the
moment the offender gains possession of the thing, even if he has no opportunity to dispose of the
same.92 And long ago, we asserted in People v. Avila: 93

x x x [T]he most fundamental notion in the crime of theft is the taking of the thing to be appropriated
into the physical power of the thief, which idea is qualified by other conditions, such as that the
taking must be effected animo lucrandi and without the consent of the owner; and it will be here
noted that the definition does not require that the taking should be effected against the will of the
owner but merely that it should be without his consent, a distinction of no slight importance. 94

Insofar as we consider the present question, "unlawful taking" is most material in this respect.
Unlawful taking, which is the deprivation of one’s personal property, is the element which produces
the felony in its consummated stage. At the same time, without unlawful taking as an act of
execution, the offense could only be attempted theft, if at all.

With these considerations, we can only conclude that under Article 308 of the Revised Penal Code,
theft cannot have a frustrated stage. Theft can only be attempted or consummated.

Neither Diño nor Flores can convince us otherwise. Both fail to consider that once the offenders
therein obtained possession over the stolen items, the effect of the felony has been produced as
there has been deprivation of property. The presumed inability of the offenders to freely dispose of
the stolen property does not negate the fact that the owners have already been deprived of their
right to possession upon the completion of the taking.

Moreover, as is evident in this case, the adoption of the rule —that the inability of the offender to
freely dispose of the stolen property frustrates the theft — would introduce a convenient defense for
the accused which does not reflect any legislated intent, 95 since the Court would have carved a
viable means for offenders to seek a mitigated penalty under applied circumstances that do not
admit of easy classification. It is difficult to formulate definite standards as to when a stolen item is
susceptible to free disposal by the thief. Would this depend on the psychological belief of the
offender at the time of the commission of the crime, as implied in Diño?

Or, more likely, the appreciation of several classes of factual circumstances such as the size and
weight of the property, the location of the property, the number and identity of people present at the
scene of the crime, the number and identity of people whom the offender is expected to encounter
upon fleeing with the stolen property, the manner in which the stolen item had been housed or
stored; and quite frankly, a whole lot more. Even the fungibility or edibility of the stolen item would
come into account, relevant as that would be on whether such property is capable of free disposal at
any stage, even after the taking has been consummated.

All these complications will make us lose sight of the fact that beneath all the colorful detail, the
owner was indeed deprived of property by one who intended to produce such deprivation for
reasons of gain. For such will remain the presumed fact if frustrated theft were recognized, for
therein, all of the acts of execution, including the taking, have been completed. If the facts establish
the non-completion of the taking due to these peculiar circumstances, the effect could be to
downgrade the crime to the attempted stage, as not all of the acts of execution have been
performed. But once all these acts have been executed, the taking has been completed, causing the
unlawful deprivation of property, and ultimately the consummation of the theft.

Maybe the Diño/Flores rulings are, in some degree, grounded in common sense. Yet they do not
align with the legislated framework of the crime of theft. The Revised Penal Code provisions on theft
have not been designed in such fashion as to accommodate said rulings. Again, there is no
language in Article 308 that expressly or impliedly allows that the "free disposition of the items
stolen" is in any way determinative of whether the crime of theft has been produced. Diño itself did
not rely on Philippine laws or jurisprudence to bolster its conclusion, and the later Flores was
ultimately content in relying on Diño alone for legal support. These cases do not enjoy the weight of
stare decisis, and even if they did, their erroneous appreciation of our law on theft leave them
susceptible to reversal. The same holds true of Empilis, a regrettably stray decision which has not
since found favor from this Court.
We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. As
petitioner has latched the success of his appeal on our acceptance of the Diño and Flores rulings,
his petition must be denied, for we decline to adopt said rulings in our jurisdiction. That it has taken
all these years for us to recognize that there can be no frustrated theft under the Revised Penal
Code does not detract from the correctness of this conclusion. It will take considerable amendments
to our Revised Penal Code in order that frustrated theft may be recognized. Our deference to Viada
yields to the higher reverence for legislative intent.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.

April 5, 2016

G.R. No. 202124

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
IRENEO JUGUETA, Accused-Appellant.

DECISION

PERALTA, J.:

This resolves the appeal from the Decision   of the Court of Appeals (CA) dated January 30, 2012 in
1

CA-G.R. CR HC No. 03252. The CA affirmed the judgments of the Regional Trial Court (RTC),
Branch 61, Gumaca, Quezon, finding accused-appellant Ireneo Jugueta y Flores guilty beyond
reasonable doubt of Double Murder in Criminal Case No. 7698-G and Multiple Attempted Murder in
Criminal Case No. 7702-G.

In Criminal Case No. 7698-G, appellant was charged with Double Murder, defined and penalized
under Article 248 of the Revised Penal Code, allegedly committed as follows:

That on or about the 6th day of June 2002, at about 9:00 o'clock in the evening, at Barangay Caridad
Ilaya, Municipality of Atimonan, Province of Quezon, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, armed with a caliber.22 firearm, with intent to kill,
qualified by treachery and evident premeditation, did then and there willfully, unlawfully and
feloniously attack, assault and shoot with said firearm Mary Grace Divina, a minor, 13 years old, who
suffered the following:
"Gunshot wound -

Point of Entry – lower abdomen, right, 2 cm. from the midline and 6 cm. from the level of the
umbilicus, directed upward toward the left upper abdomen."

and Claudine Divina, a minor, 3 ½ years of age, who suffered the following:

"Gunshot wound -

Point of Entry - 9th ICS along the mid-axillary line, right, 1 cm. diameter

Point of Exit - 7th ICS mid-axillary line, left;"

which directly caused their instant death.

That the crime committed in the dwelling of the offended party who had not given provocation for the
attack and the accused took advantage of nighttime to facilitate the commission of the offense.

Contrary to law. 2

In Criminal Case No. 7702-G, appellant, together with Gilbert Estores and Roger San Miguel, was
charged with Multiple Attempted Murder, allegedly committed as follows:

That on or about 9:00 o’clock in the evening of 6th day of June, 2002, at Barangay Caridad Ilaya,
Municipality of Atimonan, Province of Quezon, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and confederating together and mutually
helping one another, armed with short firearms of undetermined calibres, with intent to kill, qualified
by treachery, with evident premeditation and abuse of superior strength, did then and there wilfully,
unlawfully and feloniously attack, assault, and shoot with the said firearms the house occupied by
the family of Norberto Divina, thereby commencing the commission of the crime of Murder, directly
by overt acts, but did not perform all the acts of execution which would have produced it by reason of
some cause or accident other than the spontaneous desistance of the accused, that is, the
occupants Norberto Divina, his wife Maricel Divina and children Elizabeth Divina and Judy Ann
Divina, both elementary pupils and who are minors, were not hit.

CONTRARY TO LAW. 3

Roger San Miguel, however, moved for reinvestigation of the case against them. At said
proceedings, one Danilo Fajarillo submitted his sworn statement stating that on June 6, 2002, he
saw appellant with a certain "Hapon" and Gilbert Estores at the crime scene, but it was only
appellant who was carrying a firearm while the other two had no participation in the shooting
incident. Fajarillo further stated that Roger San Miguel was not present at the crime scene. Based on
the sworn statement of Fajarillo, the Provincial Prosecutor found no prima facie case against Gilbert
Estores and Roger San Miguel.  Thus, upon motion of the prosecution, the case for Attempted
4

Murder against Gilbert Estores and Roger San Miguel was dismissed, and trial proceeded only as to
appellant. 5

At the trial, the prosecution presented the testimonies of Norberto Divina, the victim, and Dr. Lourdes
Taguinod who executed the Medico-Legal Certificate and confirmed that the children of Norberto,
namely, Mary Grace and Claudine, died from gunshot wounds. Dr. Taguinod noted that the
trajectory of the bullet wounds showed that the victims were at a higher location than the shooter,
but she could not tell what kind of ammunitions were used. 6

Norberto testified that the appellant is his brother-in-law. He recounted that in the evening of June 6,
2002, as his entire family lay down on the floor of their one-room nipa hut to sleep, the "sack" walling
of their hut was suddenly stripped off, and only the supporting bamboo (fences) remained. With the
covering of the wall gone, the three (3) men responsible for the deed came into view. Norberto
clearly saw their faces which were illuminated by the light of a gas lamp hanging in their small hut.
Norberto identified the 3 men as appellant, Gilbert Estores and Roger San Miguel.

The 3 men ordered Norberto to come down from his house, but he refused to do so. The men then
uttered, "Magdasal ka na at katapusan mo na ngayon." Norberto pleaded with them, saying,
"Maawa kayo sa amin, matanda na ako at marami akong anak. Anong kasalanan ko sa inyo?"
Despite such plea for mercy, a gunshot was fired, and Norberto immediately threw his body over his
children and wife in an attempt to protect them from being hit. Thereafter, he heard successive
gunshots being fired in the direction where his family huddled together in their hut.7

When the volley of shots ceased and the three (3) men left, Norberto saw that his two (2) young
daughters were wounded. His wife went out of their house to ask for help from neighbors, while he
and his older daughter carried the two (2) wounded children out to the street. His daughter Mary
Grace died on the way to the hospital, while Claudine expired at the hospital despite the doctors'
attempts to revive her.8

In answer to questions of what could have prompted such an attack from appellant, Norberto replied
that he had a previous altercation with appellant who was angered by the fact that he (Norberto) filed
a case against appellant's two other brothers for molesting his daughter. 9

On the other hand, appellant was only able to proffer denial and alibi as his defense. Appellant's
testimony, along with those of Gilbert Estores, Roger San Miguel, Isidro San Miguel and Ruben
Alegre, was that he (appellant) was just watching TV at the house of Isidro San Miguel, where he
had been living for several years, at the time the shooting incident occurred. However, he and the
other witnesses admitted that said house was a mere five-minute walk away from the crime scene. 10

Finding appellant’s defense to be weak, and ascribing more credence to the testimony of Norberto,
the trial court ruled that the evidence clearly established that appellant, together with two other
assailants, conspired to shoot and kill the family of Norberto. Appellant was then convicted of Double
Murder in Criminal Case No. 7698-G and Multiple Attempted Murder in Criminal Case No. 7702-G.

The dispositive portion of the trial court’s judgment in Criminal Case No. 7698-G reads:

WHEREFORE and in view of all the foregoing, the Court finds accused Ireneo Jugueta guilty beyond
reasonable doubt for Double Murder defined and punished under Article 248 of the Revised Penal
Code and is hereby sentenced to suffer Reclusion Perpetua for the death of Mary Grace Divina and
to indemnify her heirs in the amount of Php50,000.00 and another to suffer Reclusion Perpetua for
the death of Claudine Divina and accused is further ordered to indemnify the heirs of Claudine
Divina in the sum of Php50,000.00. In addition, he is hereby ordered to pay the heirs of the victims
actual damages in the amount of Php16,150.00 and to pay for the costs.

SO ORDERED. 11
On the other hand, the dispositive portion of the trial court’s judgment in Criminal Case No. 7702-G,
reads:

WHEREFORE and in view of all the foregoing, the Court finds accused Ireneo Jugueta guilty beyond
reasonable doubt for Multiple Attempted Murder defined and penalized under Article 248 in relation
to Article 51 of the Revised Penal Code and is hereby sentenced to suffer the penalty of FOUR (4)
YEARS and TWO (2) MONTHS of Prision Correccional as minimum to EIGHT (8) YEARS and ONE
(1) DAY of Prision Mayor as maximum for each of the offended parties; Norberto Divina, Maricel
Divina, Elizabeth Divina and Judy Ann Divina. Further, accused is ordered to pay for the costs of the
suit.

SO ORDERED. 12

Aggrieved by the trial court's judgments, appellant appealed to the CA. On January 30, 2012, the CA
rendered a Decision affirming appellant's conviction for the crimes charged. 13

Dissatisfied with the CA Decision, appellant elevated the case to this Court. On July 30, 2012, the
Court issued a Resolution  notifying the parties that they may submit their respective Supplemental
14

Briefs. Both parties manifested that they will no longer submit supplemental briefs since they had
exhaustively discussed their positions before the CA. 15

The main issue advanced in the Appellant's Brief deals with the inconsistencies in Norberto's
testimony, such as his failure to state from the beginning that all three assailants had guns, and to
categorically identify appellant as the one holding the gun used to kill Norberto’s children.

The appeal is unmeritorious.

At the outset, it must be stressed that factual findings of the trial court, its assessment of the
credibility of witnesses and the probative weight of their testimonies, and the conclusions based on
these factual findings are to be given the highest respect. Thus, generally, the Court will not
recalibrate and re-examine evidence that had been analyzed and ruled upon by the trial court and
affirmed by the CA. 16

The evidence on record fully supports the trial court's factual finding, as affirmed by the CA, that
appellant acted in concert with two other individuals, all three of them carrying firearms and
simultaneously firing at Norberto and his family, killing his two young daughters. Norberto clearly
saw all of the three assailants with their firearms as there is illumination coming from a lamp inside
their house that had been laid bare after its walling was stripped off, to wit:

Q: When the wall of your house was stripped off by these three persons at the same time, do you
have light in your house?

A: Yes, sir.

Q: What kind of light was there?

A: A gas lamp.

Q: Where was the gas lamp placed at that time?

A: In the middle of our house.

 xxxx

Q: when did they fire a shot?

A: On the same night, when they had stripped off the wallings.

Q: How many gunshots did you hear?

A: Only one.

Q: Do you know the sound of a gunshot? A firearm?

A: Yes, sir, it is loud? (sic)

xxxx

Q: After the first shot, was there any second shot?

A: After that, successive fire shot (sic) followed and my youngest and eldest daughters were hit.

xxxx

Q: How many of the three were holding guns at that time?

A: All of them.

Q: You mean to tell the honorable court that these three persons were

having one firearm each?

A: Yes, sir.

Q: And they fired shots at the same time?

A: Yes, sir.

Q: To what direction these three persons fired (sic) their firearms during that night?

A: To the place where we were.

Q: When those three persons were firing their respective firearms, what was your position then?

A: I ordered my children to lie down.

Q: How about you, what was your position when you were ordering your children to lie down?

A: (witness demonstrated his position as if covering his children with his body and ordering them to
line (sic) down face down)
Q: Mr. Witness, for how long did these three persons fire shots at your house?

A: Less than five minutes, sir.

Q: After they fired their shots, they left your house?

A: Yes, sir.

Q: And when these persons left your house, you inspected your children to see what happened to
them?

A: Yes, sir, they were hit.

xxx 17

Appellant and the two other malefactors are equally responsible for the death of Norberto's
daughters because, as ruled by the trial court, they clearly conspired to kill Norberto's family.
Conspiracy exists when two or more persons come to an agreement regarding the commission of a
crime and decide to commit it. Proof of a prior meeting between the perpetrators to discuss the
commission of the crime is not necessary as long as their concerted acts reveal a common design
and unity of purpose. In such case, the act of one is the act of all.18 Here, the three men
undoubtedly acted in concert as they went to the house of Norberto together, each with his own
firearm. It is, therefore, no longer necessary to identify and prove that it is the bullet particularly fired
from appellant's firearm that killed the children.

Murder is defined under Article 248 of the Revised Penal Code as the unlawful killing of a person,
which is not parricide or infanticide, attended by circumstances such as treachery or evident
premeditation.  The presence of any one of the circumstances enumerated in Article 248 of the
19

Code is sufficient to qualify a killing as murder.  The trial court correctly ruled that appellant is liable
20

for murder because treachery attended the killing of Norberto’s two children, thus:

x x x Evidence adduced show that the family of Norberto Divina, were all lying down side by side
about to sleep on June 6, 2002 at around 9:00 o’clock in the evening, when suddenly their wall made
of sack was stripped off by [appellant] Ireneo Jugueta, Roger San Miguel and Gilberto Alegre (sic)
[Gilbert Estores]. They ordered him to go out of their house and when he refused despite his plea for
mercy, they fired at them having hit and killed his two (2) daughters. The family of Norberto Divina
were unarmed and his children were at very tender ages. Mary Grace Divina and Claudine who were
shot and killed were 13 years old and 3 ½ years old respectively. In this case, the victims were
defenseless and manifestly overpowered by armed assailants when they were gunned down. There
was clear showing that the attack was made suddenly and unexpectedly as to render the victims
helpless and unable to defend themselves. Norberto and his wife and his children could have
already been asleep at that time of the night. x x x  21

Verily, the presence of treachery qualified the killing of the hapless children to murder. As held
in People v. Fallorina,  the essence of treachery is the sudden and unexpected attack on an
22

unsuspecting victim without the slightest provocation on his part. Minor children, who by reason of
their tender years, cannot be expected to put up a defense. When an adult person illegally attacks a
child, treachery exists.

As to the charge of multiple attempted murder, the last paragraph of Article 6 of the Revised Penal
Code states that a felony is attempted when the offender commences the commission of a felony
directly by overt acts, and does not perform all the acts of execution which should produce the felony
by reason of some cause or accident other than his own spontaneous desistance. In Esqueda v.
People,  the Court held:
23

If one inflicts physical injuries on another but the latter survives, the crime committed is either
consummated physical injuries, if the offender had no intention to kill the victim, or frustrated or
attempted homicide or frustrated murder or attempted murder if the offender intends to kill the victim.
Intent to kill may be proved by evidence of: (a) motive; (b) the nature or number of weapons used in
the commission of the crime; (c) the nature and number of wounds inflicted on the victim; (d) the
manner the crime was committed; and (e) the words uttered by the offender at the time the injuries
are inflicted by him on the victim.

In this case, the prosecution has clearly established the intent to kill on the part of appellant as
shown by the use of firearms, the words uttered during, as well as the manner of, the commission of
24

the crime. The Court thus quotes with approval the trial court’s finding that appellant is liable for
attempted murder, viz.:

In the case at bar, the perpetrators who acted in concert commenced the felony of murder first by
suddenly stripping off the wall of their house, followed by successive firing at the intended victims
when Norberto Divina refused to go out of the house as ordered by them. If only there were good in
aiming their target, not only Mary Grace and Claudine had been killed but surely all the rest of the
family would surely have died. Hence, perpetrators were liable for Murder of Mary Grace Divina and
Claudine Divina but for Multiple Attempted Murder for Norberto Divina, Maricel Divina, Elizabeth
Divina and Judy Ann Divina. But as [appellant] Ireneo Jugueta was the only one charged in this
case, he alone is liable for the crime committed. 25

Meanwhile, the supposed inconsistencies in Norberto's testimony, i.e., that he failed to state from the
very beginning that all three assailants were carrying firearms, and that it was the shots from
appellant’s firearm that killed the children, are too trivial and inconsequential to put a dent on said
witness's credibility. An examination of Norberto's testimony would show that there are no real
inconsistencies to speak of. As ruled in People v. Cabtalan,  "[m]inor inconsistencies and
26

discrepancies pertaining to trivial matters do not affect the credibility of witnesses, as well as their
positive identification of the accused as the perpetrators of the crime."  Both the trial court and the
27

CA found Norberto's candid and straightforward testimony to be worthy of belief and this Court sees
no reason why it should not conform to the principle reiterated in Medina, Jr. v. People  that:
28

Time and again, this Court has deferred to the trial court's factual findings and evaluation of
the credibility of witnesses, especially when affirmed by the CA, in the absence of any clear
showing that the trial court overlooked or misconstrued cogent facts and circumstances that
would justify altering or revising such findings and evaluation. This is because the trial court's
determination proceeds from its first-hand opportunity to observe the demeanor of the
witnesses, their conduct and attitude under grilling examination, thereby placing the trial
court in unique position to assess the witnesses' credibility and to appreciate their
truthfulness, honesty and candor x x x. 29

The records of this case, particularly the testimonies of the witnesses, reveal no outstanding or
exceptional circumstance to justify a deviation from such long-standing principle. There is no cogent
reason to overturn the trial court's ruling that the prosecution evidence, particularly the testimony of
Norberto Divina identifying appellant as one of the assailants, is worthy of belief. Thus, the
prosecution evidence established beyond any reasonable doubt that appellant is one of the
perpetrators of the crime.
However, the Court must make a clarification as to the nomenclature used by the trial court to
identify the crimes for which appellant was penalized. There is some confusion caused by the trial
court's use of the terms "Double Murder" and "Multiple Attempted Murder" in convicting appellant,
and yet imposing penalties which nevertheless show that the trial court meant to penalize appellant
for two (2) separate counts of Murder and four (4) counts of Attempted Murder.

The facts, as alleged in the Information in Criminal Case No. 7698-G, and as proven during trial,
show that appellant is guilty of 2 counts of the crime of Murder and not Double Murder, as the killing
of the victims was not the result of a single act but of several acts of appellant and his cohorts. In the
same vein, appellant is also guilty of 4 counts of the crime of Attempted Murder and not Multiple
Attempted Murder in Criminal Case No. 7702-G. It bears stressing that the Informations in this case
failed to comply with the requirement in Section 13, Rule 110 of the Revised Rules of Court that an
information must charge only one offense.

As a general rule, a complaint or information must charge only one offense, otherwise, the same is
defective. The reason for the rule is stated in People of the Philippines and AAA v. Court of Appeals,
21st Division, Mindanao Station, et al.,  thus:
30

The rationale behind this rule prohibiting duplicitous complaints or informations is to give the
accused the necessary knowledge of the charge against him and enable him to sufficiently prepare
for his defense. The State should not heap upon the accused two or more charges which might
confuse him in his defense. Non-compliance with this rule is a ground for quashing the duplicitous
complaint or information under Rule 117 of the Rules on Criminal Procedure and the accused may
raise the same in a motion to quash before he enters his plea, otherwise, the defect is deemed
waived.

However, since appellant entered a plea of not guilty during arraignment and failed to move for the
quashal of the Informations, he is deemed to have waived his right to question the same. Section 9
of Rule 117 provides that "[t]he failure of the accused to assert any ground of a motion to quash
before he pleads to the complaint or information, either because he did not file a motion to quash or
failed to allege the same in said motion, shall be deemed a waiver of any objections except those
based on the grounds provided for in paragraphs (a), (b), (g), and (i) of Section 3 of this Rule."

It is also well-settled that when two or more offenses are charged in a single complaint or information
but the accused fails to object to it before trial, the court may convict him of as many offenses as are
charged and proved, and impose upon him the proper penalty for each offense. 31

Appellant can therefore be held liable for all the crimes alleged in the Informations in Criminal Case
Nos. 7698-G and 7702-G, i.e., 2 counts of murder and 4 counts of attempted murder, respectively,
and proven during trial.

Meanwhile, in People v. Nelmida,  the Court explained the concept of a complex crime as defined in
32

Article 4833 of the Revised Penal Code, thus:

In a complex crime, two or more crimes are actually committed, however, in the eyes of the law and
in the conscience of the offender they constitute only one crime, thus, only one penalty is imposed.
There are two kinds of complex crime. The first is known as a compound crime, or when a single act
constitutes two or more grave or less grave felonies while the other is known as a complex crime
proper, or when an offense is a necessary means for committing the other. The classic example of
the first kind is when a single bullet results in the death of two or more persons. A different rule
governs where separate and distinct acts result in a number killed. Deeply rooted is the doctrine that
when various victims expire from separate shot, such acts constitute separate and distinct crimes. 34
Here, the facts surrounding the shooting incident clearly show that appellant and the two others, in
firing successive and indiscriminate shots at the family of Norberto from their respective firearms,
intended to kill not only Norberto, but his entire family. When several gunmen, as in this case,
indiscriminately fire a series of shots at a group of people, it shows their intention to kill several
individuals. Hence, they are committing not only one crime. What appellant and his cohorts
committed cannot be classified as a complex crime because as held in People v. Nelmida,  "each35

act by each gunman pulling the trigger of their respective firearms, aiming each particular moment at
different persons constitute distinct and individual acts which cannot give rise to a complex crime." 36

Furthermore, the Court notes that both the trial court and the CA failed to take into account dwelling
as an ordinary, aggravating circumstance, despite the fact that the Informations in Criminal Case
Nos. 7698-G and 7702-G contain sufficient allegations to that effect, to wit:

Criminal Case No. 7698-G for Double Murder:

That the crime was committed in the dwelling of the offended party who had not given provocation
for the attack and the accused took advantage of nighttime to facilitate the commission of the
offense.37

Criminal Case No. 7702-G for Multiple Attempted Murder:

x x x the above-named accused, conspiring and confederating together and mutually helping one
another, armed with short firearms of undetermined calibres, with intent to kill, qualified by treachery,
with evident premeditation and abuse of superior strength, did then and there wilfully, unlawfully and
feloniously attack, assault, and shoot with the said firearms the house occupied by the family of
Norberto Divina, thereby commencing the commission of the crime of Murder, directly by overt acts,
but did not perform all the acts of execution which would have produced it by reason of some cause
or accident other than the spontaneous desistance of the accused x x x 38

In People v. Agcanas,  the Court stressed that "[i]t has been held in a long line of cases that dwelling
39

is aggravating because of the sanctity of privacy which the law accords to human abode. He who
goes to another's house to hurt him or do him wrong is more guilty than he who offends him
elsewhere." Dwelling aggravates a felony where the crime is committed in the dwelling of the
offended party provided that the latter has not given provocation therefor.  The testimony of
40

Norberto established the fact that the group of appellant violated the victims' home by destroying the
same and attacking his entire family therein, without provocation on the part of the latter. Hence, the
trial court should have appreciated dwelling as an ordinary aggravating circumstance.

In view of the attendant ordinary aggravating circumstance, the Court must modify the penalties
imposed on appellant. Murder is punishable by reclusion perpetua to death, thus, with an ordinary
aggravating circumstance of dwelling, the imposable penalty is death for each of two (2) counts of
murder.  However, pursuant to Republic Act (RA) No. 9346, proscribing the imposition of the death
41

penalty, the penalty to be imposed on appellant should be reclusion perpetua for each of the two (2)
counts of murder without eligibility for parole. With regard to the four (4) counts of attempted murder,
the penalty prescribed for each count is prision mayor. With one ordinary aggravating circumstance,
the penalty should be imposed in its maximum period. Applying the Indeterminate Sentence Law,
the maximum penalty should be from ten (10) years and one (1) day to twelve (12) years of prision
mayor, while the minimum shall be taken from the penalty next lower in degree, i.e., prision
correccional, in any of its periods, or anywhere from six (6) months and one (1) day to six (6) years.
This Court finds it apt to impose on appellant the indeterminate penalty of four (4) years, two (2)
months and one (1) day of prision correccional, as minimum, to ten (10) years and one (1) day
of prision mayor, as minimum, for each of the four (4) counts of attempted murder.
Anent the award of damages, the Court deems it proper to address the matter in detail as regards
criminal cases where the imposable penalty is reclusion perpetua to death. Generally, in these types
of criminal cases, there are three kinds of damages awarded by the Court; namely: civil indemnity,
moral, and exemplary damages. Likewise, actual damages may be awarded or temperate damages
in some instances.

First, civil indemnity ex delicto is the indemnity authorized in our criminal law for the offended party,
in the amount authorized by the prevailing judicial policy and apart from other proven actual
damages, which itself is equivalent to actual or compensatory damages in civil law.  This award
42

stems from Article 100 of the RPC which states, "Every person criminally liable for a felony is also
civilly liable."

It is to be noted that civil indemnity is, technically, not a penalty or a fine; hence, it can be increased
by the Court when appropriate.  Article 2206 of the Civil Code provides:
43

Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three
thousand pesos, even though there may have been mitigating circumstances. In addition:

(1) The defendant shall be liable for the loss of the earning capacity of the deceased,
and the indemnity shall be paid to the heirs of the latter; such indemnity shall in every
case be assessed and awarded by the court, unless the deceased on account of
permanent physical disability not caused by the defendant, had no earning capacity
at the time of his death;

(2) If the deceased was obliged to give support according to the provisions of Article
291, the recipient who is not an heir called to the decedent's inheritance by the law of
testate or intestate succession, may demand support from the person causing the
death, for a period not exceeding five years, the exact duration to be fixed by the
court;

(3) The spouse, legitimate and illegitimate descendants and ascendants of the
deceased may demand moral damages for mental anguish by reason of the death of
the deceased.

In our jurisdiction, civil indemnity is awarded to the offended party as a kind of monetary restitution or
compensation to the victim for the damage or infraction that was done to the latter by the accused,
which in a sense only covers the civil aspect. Precisely, it is civil indemnity. Thus, in a crime where a
person dies, in addition to the penalty of imprisonment imposed to the offender, the accused is also
ordered to pay the victim a sum of money as restitution. Also, it is apparent from Article 2206 that the
law only imposes a minimum amount for awards of civil indemnity, which is ₱3,000.00. The law did
not provide for a ceiling. Thus, although the minimum amount for the award cannot be changed,
increasing the amount awarded as civil indemnity can be validly modified and increased when the
present circumstance warrants it. 44

The second type of damages the Court awards are moral damages, which are also compensatory in
nature. Del Mundo v. Court of Appeals  expounded on the nature and purpose of moral
45

damages, viz.:

Moral damages, upon the other hand, may be awarded to compensate one for manifold injuries such
as physical suffering, mental anguish, serious anxiety, besmirched reputation, wounded feelings and
social humiliation. These damages must be understood to be in the concept of grants, not punitive or
corrective in nature, calculated to compensate the claimant for the injury suffered. Although
incapable of exactness and no proof of pecuniary loss is necessary in order that moral damages
may be awarded, the amount of indemnity being left to the discretion of the court, it is imperative,
nevertheless, that (1) injury must have been suffered by the claimant, and (2) such injury must have
sprung from any of the cases expressed in Article 2219  and Article 2220  of the Civil Code. x x x.
46 47

Similarly, in American jurisprudence, moral damages are treated as "compensatory damages

awarded for mental pain and suffering or mental anguish resulting from a wrong."  They may also be
48

considered and allowed "for resulting pain and suffering, and for humiliation, indignity, and vexation
suffered by the plaintiff as result of his or her assailant's conduct, as well as the factors of
provocation, the reasonableness of the force used, the attendant humiliating circumstances, the sex
of the victim, [and] mental distress."
49

The rationale for awarding moral damages has been explained in Lambert v. Heirs of Rey Castillon:
"[T]he award of moral damages is aimed at a restoration, within the limits possible, of the spiritual
status quo ante; and therefore, it must be proportionate to the suffering inflicted."
50

Corollarily, moral damages under Article 2220  of the Civil Code also does not fix the amount of
51

damages that can be awarded. It is discretionary upon the court, depending on the mental anguish
or the suffering of the private offended party. The amount of moral damages can, in relation to civil
indemnity, be adjusted so long as it does not exceed the award of civil indemnity. 52

Finally, the Civil Code of the Philippines provides, in respect to exemplary damages, thus:

ART. 2229. Exemplary or corrective damages are imposed, by way of example or correction for the
public good, in addition to the moral, temperate, liquidated or compensatory damages.

ART. 2230. In criminal offenses, exemplary damages as a part of the civil liability may be imposed
when the crime was committed with one or more aggravating circumstances. Such damages are
separate and distinct from fines and shall be paid to the offended party.

Also known as "punitive" or "vindictive" damages, exemplary or corrective damages are intended to
serve as a deterrent to serious wrong doings, and as a vindication of undue sufferings and wanton
invasion of the rights of an injured or a punishment for those guilty of outrageous conduct. These
terms are generally, but not always, used interchangeably. In common law, there is preference in the
use of exemplary damages when the award is to account for injury to feelings and for the sense of
indignity and humiliation suffered by a person as a result of an injury that has been maliciously and
wantonly inflicted,  the theory being that there should be compensation for the hurt caused by the
53

highly reprehensible conduct of the defendant – associated with such circumstances as willfulness,
wantonness, malice, gross negligence or recklessness, oppression, insult or fraud or gross fraud  – 54

that intensifies the injury. The terms punitive or vindictive damages are often used to refer to those
species of damages that may be awarded against a person to punish him for his outrageous
conduct. In either case, these damages are intended in good measure to deter the wrongdoer and
others like him from similar conduct in the future. 55

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 two-pronged
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 the Civil Code.  56

The reason is fairly obvious as to why the Revised Rules of Criminal Procedure  requires 57

aggravating circumstances, whether ordinary or qualifying, to be stated in the complaint or

information. It is in order not to trample on the constitutional right of an accused to be informed of the
nature of the alleged offense that he or she has committed. A criminal complaint or information
should basically contain the elements of the crime, as well as its qualifying and ordinary aggravating
circumstances, for the court to effectively determine the proper penalty it should impose. This,
however, is not similar in the recovery of civil liability. In the civil aspect, the presence of an
aggravating circumstance, even if not alleged in the information but proven during trial would entitle
the victim to an award of exemplary damages.

Being corrective in nature, exemplary damages, therefore, can be awarded, not only due to the
presence of an aggravating circumstance, but also where the circumstances of the case show the
highly reprehensible or outrageous conduct of the offender. In much the same way as Article 2230
prescribes an instance when exemplary damages may be awarded, Article 2229, the main provision,
lays down the very basis of the award. Thus, in People v. Matrimonio,  the Court imposed exemplary
58

damages to deter other fathers with perverse tendencies or aberrant sexual behavior from sexually
abusing their own daughters. Also, in People v. Cristobal,  the Court awarded exemplary damages
59

on account of the moral corruption, perversity and wickedness of the accused in sexually assaulting
a pregnant married woman. In People v. Cañada,  People v. Neverio  and People v. Layco, Sr.,  the
60 61 62

Court awarded exemplary damages to set a public example, to serve as deterrent to elders who
abuse and corrupt the youth, and to protect the latter from sexual abuse.

Existing jurisprudence pegs the award of exemplary damages at ₱30,000.00,  despite the lack of
63

any aggravating circumstance. The Court finds it proper to increase the amount to ₱50,000.00 in
order to deter similar conduct.

If, however, the penalty for the crime committed is death, which cannot be imposed because of the
provisions of R.A. No. 9346, prevailing jurisprudence  sets the amount of ₱100,000.00 as exemplary
64

damages.

Before awarding any of the above mentioned damages, the Court, however, must first consider the
penalty imposed by law. Under RA 7659 or An Act to Impose the Death Penalty on Certain Heinous
Crimes, Amending for that Purpose the Revised Penal Laws, and for Other Purposes, certain crimes
under the RPC and special penal laws were amended to impose the death penalty under certain
circumstances.  Under the same law, the following crimes are punishable by reclusion perpetua:
65

piracy in general,  mutiny on the high seas,  and simple rape.  For the following crimes, RA 7659
66 67 68

has imposed the penalty of reclusion perpetua to death: qualified piracy;  qualified bribery under
69

certain circumstances;  parricide;  murder;  infanticide, except when committed by the mother of the
70 71 72

child for the purpose of concealing her dishonor or either of the maternal grandparents for the same
purpose;  kidnapping and serious illegal detention under certain circumstances;  robbery with
73 74

violence against or intimidation of persons under certain circumstances;  destructive arson, except
75

when death results as a consequence of the commission of any of the acts penalized under the
article;  attempted or frustrated rape, when a homicide is committed by reason or on occasion
76

thereof; plunder;  and carnapping, when the driver or occupant of the carnapped motor vehicle is
77
killed or raped in the course of the commission of the carnapping or on the occasion
thereof.  Finally, RA 7659 imposes the death penalty on the following crimes:
78

(a) In qualified bribery, when it is the public officer who asks or demands the gift or present.

(b) In kidnapping and serious illegal detention: (i) when the kidnapping or detention was
committed for the purpose of extorting ransom from the victim or any other person; (ii) when
the victim is killed or dies as a consequence of the detention; (iii) when the victim is raped,
subjected to torture or dehumanizing acts.

(c) In destructive arson, when as a consequence of the commission of any of the acts
penalized under Article 320, death results.

(d) In rape: (i) when by reason or on occasion of the rape, the victim becomes insane or
homicide is committed; (ii) when committed with any of the following attendant
circumstances: (1) when the victim is under eighteen (18) years of age and the offender is a
parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third
civil degree, or the common-law-spouse of the parent of the victim; (2) when the victim is
under the custody of the police or military authorities; (3) when the rape is committed in full
view of the husband, parent, any of the children or other relatives within the third degree of
consanguinity; (4) when the victim is a religious or a child below seven years old; (5) when
the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS)
disease; (6) when committed by any member of the Armed Forces of the Philippines or the
Philippine National Police or any law enforcement agency; and (7) when by reason or on the
occasion of the rape, the victim has suffered permanent physical mutilation.

From these heinous crimes, where the imposable penalties consist of two (2) indivisible penalties or
single indivisible penalty, all of them must be taken in relation to Article 63 of the RPC, which
provides:

Article 63. Rules for the application of indivisible penalties. - In all cases in which the law prescribes
a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or
aggravating circumstances that may have attended the commission of the deed.

In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following
rules shall be observed in the application thereof:

1. when in the commission of the deed there is present only one aggravating circumstance,
the greater penalty shall be applied.

2. when there are neither mitigating nor aggravating circumstances in the commission of the
deed, the lesser penalty shall be applied.

3. when the commission of the act is attended by some mitigating circumstance and there is
no aggravating circumstance, the lesser penalty shall be applied.

4. when both mitigating and aggravating circumstances attended the commission of the act,
the courts shall reasonably allow them to offset one another in consideration of their number
and importance, for the purpose of applying the penalty in accordance with the preceding
rules, according to the result of such compensation. (Revised Penal Code, Art. 63)
Thus, in order to impose the proper penalty, especially in cases of indivisible penalties, the court has
the duty to ascertain the presence of any mitigating or aggravating circumstances. Accordingly, in
crimes where the imposable penalty is reclusion perpetua to death, the court can impose
either reclusion perpetua or death, depending on the mitigating or aggravating circumstances
present.

But with the enactment of RA 9346 or An Act Prohibiting the Imposition of Death Penalty in the
Philippines, the imposition of death penalty is now prohibited. It provides that in lieu of the death
penalty, the penalty of reclusion perpetua shall be imposed when the law violated makes use of the
nomenclature of the penalties of the RPC. 79

As a result, the death penalty can no longer be imposed. Instead, they have to impose reclusion
perpetua. Despite this, the principal consideration for the award of damages, following the ruling
in People v. Salome  and People v. Quiachon,  is "the penalty provided by law or imposable for the
80 81

offense because of its heinousness, not the public penalty actually imposed on the offender." 82

When the circumstances surrounding the crime would justify the imposition of the death penalty
were it not for RA 9346, the Court has ruled, as early as July 9, 1998 in People v. Victor,  that the
83

award of civil indemnity for the crime of rape when punishable by death should be ₱75,000.00 We
reasoned that "[t]his is not only a reaction to the apathetic societal perception of the penal law and
the financial fluctuations over time, but also an expression of the displeasure of the Court over the
incidence of heinous crimes against chastity."  Such reasoning also applies to all heinous crimes
84

found in RA 7659. The amount was later increased to ₱100,000.00. 85

In addition to this, the Court likewise awards moral damages. In People v. Arizapa,  ₱50,000.00 was
86

awarded as moral damages without need of pleading or proving them, for in rape cases, it is
recognized that the victim's injury is concomitant with and necessarily results from the odious crime
of rape to warrant per se the award of moral damages.  Subsequently, the amount was increased to
87

₱75,000.00 in People v. Soriano  and P100,000.00 in People v. Gambao.

88 89

Essentially, despite the fact that the death penalty cannot be imposed because of RA 9346, the
imposable penalty as provided by the law for the crime, such as those found in RA 7569, must be
used as the basis for awarding damages and not the actual penalty imposed. 1avvphi1

Again, for crimes where the imposable penalty is death in view of the attendance of an ordinary
aggravating circumstance but due to the prohibition to impose the death penalty, the actual penalty
imposed is reclusion perpetua, the latest jurisprudence  pegs the amount of ₱100,000.00 as civil
90

indemnity and ₱100,0000.00 as moral damages. For the qualifying aggravating circumstance and/or
the ordinary aggravating circumstances present, the amount of ₱100,000.00 is awarded as
exemplary damages aside from civil indemnity and moral damages. Regardless of the attendance of
qualifying aggravating circumstance, the exemplary damages shall be fixed at ₱100,000.00. "[T]his
is not only a reaction to the apathetic societal perception of the penal law and the financial
fluctuation over time, but also an expression of the displeasure of the Court over the incidence of
heinous crimes x x x." 91

When the circumstances surrounding the crime call for the imposition of reclusion perpetua only,
there being no ordinary aggravating circumstance, the Court rules that the proper amounts should
be ₱75,000.00 as civil indemnity, ₱75,000.00 as moral damages and ₱75,000.00 exemplary
damages, regardless of the number of qualifying aggravating circumstances present.

When it comes to compound and complex crimes, although the single act done by the offender
caused several crimes, the fact that those were the result of a single design, the amount of civil
indemnity and moral damages will depend on the penalty and the number of victims. For each of the
victims, the heirs should be properly compensated. If it is multiple murder without any ordinary
aggravating circumstance but merely a qualifying aggravating circumstance, but the penalty imposed
is death because of Art. 48 of the RPC wherein the maximum penalty shall be imposed,  then, for
92

every victim who dies, the heirs shall be indemnified with ₱100,000.00 as civil indemnity,
₱100,000.00 as moral damages and ₱100,000.00 as exemplary damages.

In case of a special complex crime, which is different from a complex crime under Article 48 of the
RPC, the following doctrines are noteworthy:

In People of the Philippines v. Conrado Laog,  this Court ruled that special complex crime, or more
93

properly, a composite crime, has its own definition and special penalty in the Revised Penal Code,
as amended. Justice Regalado, in his Separate Opinion in the case of People v. Barros,  explained
94

that composite crimes are "neither of the same legal basis as nor subject to the rules on complex
crimes in Article 48 [of the Revised Penal Code], since they do not consist of a single act giving rise
to two or more grave or less grave felonies [compound crimes] nor do they involve an offense being
a necessary means to commit another [complex crime proper]. However, just like the regular
complex crimes and the present case of aggravated illegal possession of firearms, only a single
penalty is imposed for each of such composite crimes although composed of two or more offenses." 95

In People v. De Leon,  we expounded on the special complex crime of robbery with homicide, as
96

follows:

In robbery with homicide, the original criminal design of the malefactor is to commit robbery, with
homicide perpetrated on the occasion or by reason of the robbery. The intent to commit robbery
must precede the taking of human life. The homicide may take place before, during or after the
robbery. It is only the result obtained, without reference or distinction as to the circumstances,
causes or modes or persons intervening in the commission of the crime that has to be taken into
consideration. There is no such felony of robbery with homicide through reckless imprudence or
simple negligence. The constitutive elements of the crime, namely, robbery with homicide, must be
consummated.

It is immaterial that the death would supervene by mere accident; or that the victim of homicide is
other than the victim of robbery, or that two or more persons are killed, or that aside from the
homicide, rape, intentional mutilation, or usurpation of authority, is committed by reason or on the
occasion of the crime. Likewise immaterial is the fact that the victim of homicide is one of the
robbers; the felony would still be robbery with homicide. Once a homicide is committed by or on the
occasion of the robbery, the felony committed is robbery with homicide. All the felonies committed by
reason of or on the occasion of the robbery are integrated into one and indivisible felony of robbery
with homicide. The word "homicide" is used in its generic sense. Homicide, thus, includes murder,
parricide, and infanticide.97

In the special complex crime of rape with homicide, the term "homicide" is to be understood in its
generic sense, and includes murder and slight physical injuries committed by reason or on occasion
of the rape.  Hence, even if any or all of the circumstances (treachery, abuse of superior strength
98

and evident premeditation) alleged in the information have been duly established by the prosecution,
the same would not qualify the killing to murder and the crime committed by appellant is still rape
with homicide. As in the case of robbery with homicide, the aggravating circumstance of treachery is
to be considered as a generic aggravating circumstance only. Thus we ruled in People v.
Macabales: 99
Finally, appellants contend that the trial court erred in concluding that the aggravating circumstance
of treachery is present. They aver that treachery applies to crimes against persons and not to crimes
against property. However, we find that the trial court in this case correctly characterized treachery
as a generic aggravating, rather than qualifying, circumstance. Miguel was rendered helpless by
appellants in defending himself when his arms were held by two of the attackers before he was
stabbed with a knife by appellant Macabales, as their other companions surrounded them. In People
v. Salvatierra, we ruled that when alevosia (treachery) obtains in the special complex crime of
robbery with homicide, such treachery is to be regarded as a generic aggravating circumstance.

Robbery with homicide is a composite crime with its own definition and special penalty in the
Revised Penal Code. There is no special complex crime of robbery with murder under the Revised
Penal Code. Here, treachery forms part of the circumstances proven concerning the actual
commission of the complex crime. Logically it could not qualify the homicide to murder but, as
generic aggravating circumstance, it helps determine the penalty to be imposed. 100

Applying the above discussion on special complex crimes, if the penalty is death but it cannot be
imposed due to RA 9346 and what is actually imposed is the penalty of reclusion perpetua, the civil
indemnity and moral damages will be ₱100,000.00 each, and another ₱100,000.00 as exemplary
damages in view of the heinousness of the crime and to set an example. If there is another
composite crime included in a special complex crime and the penalty imposed is death, an additional
₱100,000.00 as civil indemnity, ₱100,000.00 moral damages and ₱100,000.00 exemplary damages
shall be awarded for each composite crime committed.

For example, in case of Robbery with Homicide  wherein three (3) people died as a consequence of
101

the crime, the heirs of the victims shall be entitled to the award of damages as discussed earlier.
This is true, however, only if those who were killed were the victims of the robbery or mere
bystanders and not when those who died were the perpetrators or robbers themselves because the
crime of robbery with homicide may still be committed even if one of the robbers dies.  This is also
102

applicable in robbery with rape where there is more than one victim of rape.

In awarding civil indemnity and moral damages, it is also important to determine the stage in which
the crime was committed and proven during the trial. Article 6 of the RPC provides:

Art. 6. Consummated, frustrated, and attempted felonies. - Consummated felonies, as well as those
which are frustrated and attempted, are punishable.

A felony is consummated when all the elements necessary for its execution and accomplishment are
present; and it is frustrated when an offender performs all the acts of execution which would produce
the felony as a consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.

There is an attempt when the offender commences the commission of a felony directly by overt acts,
and does not perform all the acts of execution which should produce the felony by reason of some
cause or accident other than his own spontaneous desistance.

As discussed earlier, when the crime proven is consummated and the penalty imposed is death but
reduced to reclusion perpetua because of R.A. 9346, the civil indemnity and moral damages that
should be awarded will each be ₱100,000.00 and another ₱100,000.00 for exemplary damages or
when the circumstances of the crime call for the imposition of reclusion perpetua only, the civil
indemnity and moral damages should be ₱75,000.00 each, as well as exemplary damages in the
amount of ₱75,000.00. If, however, the crime proven is in its frustrated stage, the civil indemnity and
moral damages that should be awarded will each be ₱50,000.00, and an award of ₱25,000.00 civil
indemnity and ₱25,000.00 moral damages when the crime proven is in its attempted stage. The
difference in the amounts awarded for the stages is mainly due to the disparity in the outcome of the
crime committed, in the same way that the imposable penalty varies for each stage of the crime. The
said amounts of civil indemnity and moral damages awarded in cases of felonies in their frustrated or
attempted stages shall be the bases when the crimes committed constitute complex crime under
Article 48 of the RPC. For example, in a crime of murder with attempted murder, the amount of civil
indemnity, moral damages and exemplary damages is ₱100,000.00 each, while in the attempted
murder, the civil indemnity, moral damages and exemplary damages is ₱25,000.00 each.

In a special complex crime, like robbery with homicide, if, aside from homicide, several victims
(except the robbers) sustained injuries, they shall likewise be indemnified. It must be remembered
that in a special complex crime, unlike in a complex crime, the component crimes have no attempted
or frustrated stages because the intention of the offender/s is to commit the principal crime which is
to rob but in the process of committing the said crime, another crime is committed. For example, if
on the occasion of a robbery with homicide, other victims sustained injuries, regardless of the
severity, the crime committed is still robbery with homicide as the injuries become part of the crime,
"Homicide", in the special complex crime of robbery with homicide, is understood in its generic sense
and now forms part of the essential element of robbery,  which is the use of violence or the use of
103

force upon anything. Hence, the nature and severity of the injuries sustained by the victims must still
be determined for the purpose of awarding civil indemnity and damages. If a victim suffered mortal
wounds and could have died if not for a timely medical intervention, the victim should be awarded
civil indemnity, moral damages, and exemplary damages equivalent to the damages awarded in a
frustrated stage, and if a victim suffered injuries that are not fatal, an award of civil indemnity, moral
damages and exemplary damages should likewise be awarded equivalent to the damages awarded
in an attempted stage.

In other crimes that resulted in the death of a victim and the penalty consists of divisible penalties,
like homicide, death under tumultuous affray, reckless imprudence resulting to homicide, the civil
indemnity awarded to the heirs of the victim shall be ₱50,000.00 and ₱50,000.00 moral damages
without exemplary damages being awarded. However, an award of ₱50,000.00 exemplary damages
in a crime of homicide shall be added if there is an aggravating circumstance present that has been
proven but not alleged in the information.

Aside from those discussed earlier, the Court also awards temperate damages in certain cases. The
award of ₱25,000.00 as temperate damages in homicide or murder cases is proper when no
evidence of burial and funeral expenses is presented in the trial court.  Under Article 2224 of the
104

Civil Code, temperate damages may be recovered, as it cannot be denied that the heirs of the
victims suffered pecuniary loss although the exact amount was not proved.  In this case, the Court
105

now increases the amount to be awarded as temperate damages to ₱50,000.00.

In the case at bar, the crimes were aggravated by dwelling, and the murders committed were further
made atrocious by the fact that the victims are innocent, defenseless minors – one is a mere 3½-
year-old toddler, and the other a 13-year-old girl. The increase in the amount of awards for damages
is befitting to show not only the Court's, but all of society's outrage over such crimes and wastage of
lives.

In summary:

I. For those crimes  like, Murder,  Parricide,  Serious Intentional

106 107 108

Mutilation,  Infanticide,  and other crimes involving death of a victim where the penalty
109 110

consists of indivisible penalties:

1.1 Where the penalty imposed is death but reduced to reclusion perpetua because
of RA 9346:

a. Civil indemnity – ₱100,000.00

b. Moral damages – ₱100,000.00

c. Exemplary damages – ₱100,000.00

1.2 Where the crime committed was not consummated:

a. Frustrated:

i. Civil indemnity – ₱75,000.00

ii. Moral damages – ₱75,000.00

iii. Exemplary damages – ₱75,000.00

b. Attempted:

i. Civil indemnity – ₱50,000.00

ii. Exemplary damages – ₱50,000.00

iii. Exemplary damages – ₱50,000.00

2.1 Where the penalty imposed is reclusion perpetua, other than the above-
mentioned:

a. Civil indemnity – ₱75,000.00

b. Moral damages – ₱75,000.00

c. Exemplary damages – ₱75,000.00

2.2 Where the crime committed was not consummated:

a. Frustrated:

i. Civil indemnity – ₱50,000.00

ii. Moral damages – ₱50,000.00

iii. Exemplary damages – ₱50,000.00

b. Attempted:

i. Civil indemnity – ₱25,000.00

 ii. Moral damages – ₱25,000.00

iii. Exemplary damages – ₱25,000.00

II. For Simple Rape/Qualified Rape:

1.1 Where the penalty imposed is Death but reduced to reclusion perpetua because
of RA 9346:

a. Civil indemnity – ₱100,000.00

b. Moral damages – ₱100,000.00

c. Exemplary damages  – ₱100,000.00

111

1.2 Where the crime committed was not consummated but merely attempted: 112

a. Civil indemnity – ₱50,000.00

b. Moral damages – ₱50,000.00

c. Exemplary damages – ₱50,000.00

2.1 Where the penalty imposed is reclusion perpetua, other than the above-
mentioned:

a. Civil indemnity – ₱75,000.00

b. Moral damages – ₱75,000.00

c. Exemplary damages – ₱75,000.00

2.2 Where the crime committed was not consummated, but merely attempted:

a. Civil indemnity – ₱25,000.00

b. Moral damages – ₱25,000.00

c. Exemplary damages – ₱25,000.00

III. For Complex crimes under Article 48 of the Revised Penal Code where death, injuries, or
sexual abuse results, the civil indemnity, moral damages and exemplary damages will
depend on the penalty, extent of violence and sexual abuse; and the number of victims
where the penalty consists of indivisible penalties:

1.1 Where the penalty imposed is Death but reduced to reclusion perpetua because
of RA 9346:

a. Civil indemnity – ₱100,000.00

 b. Moral damages – ₱100,000.00

c. Exemplary damages – ₱100,000.00

1.2 Where the penalty imposed is reclusion perpetua, other than the above-
mentioned:

a. Civil indemnity – ₱75,000.00

b. Moral damages – ₱75,000.00

c. Exemplary damages – ₱75,000.00

The above Rules apply to every victim who dies as a result of the crime committed.
In other complex crimes where death does not result, like in Forcible Abduction with
Rape, the civil indemnity, moral and exemplary damages depend on the prescribed
penalty and the penalty imposed, as the case may be.

IV. For Special Complex Crimes like Robbery with Homicide,  Robbery with 113

Rape,  Robbery with Intentional Mutilation,  Robbery with

114 115

Arson,  Rape with Homicide,  Kidnapping with Murder,  Carnapping with Homicide  or
116 117 118 119

Carnapping with Rape,  Highway Robbery with Homicide,  Qualified Piracy,  Arson with
120 121 122

Homicide,  Hazing with Death, Rape, Sodomy or Mutilation  and other crimes with death,
123 124

injuries, and sexual abuse as the composite crimes, where the penalty consists of indivisible
penalties:

1.1 Where the penalty imposed is Death but reduced to reclusion perpetua because
of RA 9346:

a. Civil indemnity – ₱100,000.00

b. Moral damages – ₱100,000.00

c. Exemplary damages – ₱100,000.00

In Robbery with Intentional Mutilation, the amount of damages is the same as the
above if the penalty imposed is Death but reduced to reclusion perpetua although
death did not occur.

1.2 For the victims who suffered mortal/fatal wounds  and could have died if not for
125

a timely medical intervention, the following shall be awarded:

a. Civil indemnity – ₱75,000.00

b. Moral damages – ₱75,000.00

c. Exemplary damages – ₱75,000.00

1.3 For the victims who suffered non-mortal/non-fatal injuries:

 a. Civil indemnity – ₱50,000.00

b. Moral damages – ₱50,000.00

c. Exemplary damages – ₱50,000.00

2.1 Where the penalty imposed is reclusion perpetua, other than the above-
mentioned:

a. Civil indemnity – ₱75,000.00

b. Moral damages – ₱75,000.00

c. Exemplary damages – ₱75,000.00

In Robbery with Intentional Mutilation, the amount of damages is the same as the
above if the penalty imposed is reclusion perpetua.

2.2 For the victims who suffered mortal/fatal wounds and could have died if not for a
timely medical intervention, the following shall be awarded:

a. Civil indemnity – ₱50,000.00

b. Moral damages – ₱50,000.00

c. Exemplary damages – ₱50,000.00

2.3 For the victims who suffered non-mortal/non-fatal injuries:

a. Civil indemnity – ₱25,000.00

b. Moral damages – ₱25,000.00

c. Exemplary damages – ₱25,000.00

In Robbery with Physical Injuries,  the amount of damages shall likewise be

126

dependent on the nature/severity of the wounds sustained, whether fatal or non-fatal.

The above Rules do not apply if in the crime of Robbery with Homicide, the robber/s
or perpetrator/s are themselves killed or injured in the incident.1âwphi1

Where the component crime is rape, the above Rules shall likewise apply, and that
for every additional rape committed, whether against the same victim or other
victims, the victims shall be entitled to the same damages unless the other crimes of
rape are treated as separate crimes, in which case, the damages awarded to simple
rape/qualified rape shall apply.

V. In other crimes that result in the death of a victim and the penalty consists of divisible
penalties, i.e., Homicide, Death under Tumultuous Affray, Infanticide to conceal the
dishonour of the offender,  Reckless Imprudence Resulting to Homicide, Duel, Intentional
127

Abortion and Unintentional Abortion, etc.:

1.1 Where the crime was consummated:

a. Civil indemnity – ₱50,000.00

b. Moral damages – ₱50,000.00

1.2 Where the crime committed was not consummated, except those crimes where
there are no stages, i.e., Reckless Imprudence and Death under tumultuous affray:

a. Frustrated:

i. Civil indemnity – ₱30,000.00

ii. Moral damages – ₱30,000.00

b. Attempted:

i. Civil indemnity – ₱20,000.00

ii. Moral damages – ₱20,000.00

If an aggravating circumstance was proven during the trial, even if not

alleged in the Information,  in addition to the above mentioned amounts as
128

civil indemnity and moral damages, the amount of ₱50,000.00 exemplary

damages for consummated; ₱30,000.00 for frustrated; and ₱20,000.00 for
attempted, shall be awarded.

VI. A. In the crime of Rebellion where the imposable penalty is reclusion perpetua and death
occurs in the course of the rebellion, the heirs of those who died are entitled to the
following:
129

a. Civil indemnity – ₱100,000.00

b. Moral damages – ₱100,000.00

c. Exemplary damages – ₱100,000.00 130

B. For the victims who suffered mortal/fatal wounds in the course of the rebellion and
could have died if not for a timely medical intervention, the following shall be
awarded:

a. Civil indemnity – ₱75,000.00

b. Moral damages – ₱75,000.00

c. Exemplary damages – ₱75,000.00

 C. For the victims who suffered non-mortal/non-fatal injuries:

a. Civil indemnity – ₱50,000.00

b. Moral damages – ₱50,000.00

c. Exemplary damages – ₱50,000.00

VII. In all of the above instances, when no documentary evidence of burial or funeral
expenses is presented in court, the amount of ₱50,000.00 as temperate damages shall be
awarded.

To reiterate, Article 2206 of the Civil Code provides that the minimum amount for awards of civil
indemnity is P3,000.00, but does not provide for a ceiling. Thus, although the minimum amount
cannot be changed, increasing the amount awarded as civil indemnity can be validly modified and
increased when the present circumstance warrants it. 131

Prescinding from the foregoing, for the two (2) counts of murder, attended by the ordinary
aggravating circumstance of dwelling, appellant should be ordered to pay the heirs of the victims the
following damages: (1) ₱100,000.00 as civil indemnity for each of the two children who died; (2)
₱100,000.00 as moral damages for each of the two victims; (3) another ₱100,000.00 as exemplary
damages for each of the two victims; and (4) temperate damages in the amount of ₱50,000.00 for
each of the two deceased. For the four (4) counts of Attempted Murder, appellant should pay
₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages and ₱50,000.00 as exemplary
damages for each of the four victims. In addition, the civil indemnity, moral damages, exemplary
damages and temperate damages payable by the appellant are subject to interest at the rate of six
percent (6%) per annum from the finality of this decision until fully paid.
132

Lastly, this Court echoes the concern of the trial court regarding the dismissal of the charges against
Gilberto Estores and Roger San Miguel who had been identified by Norberto Divina as the
companions of appellant on the night the shooting occurred. Norberto had been very straightforward
and unwavering in his identification of Estores and San Miguel as the two other people who fired the
gunshots at his family. More significantly, as noted by the prosecutor, the testimonies of Estores and
San Miguel, who insisted they were not at the crime scene, tended to conflict with the sworn
statement of Danilo Fajarillo, which was the basis for the Provincial Prosecutor's ruling that he finds
no probable cause against the two. Danilo Fajarillo's sworn statement said that on June 6, 2002, he
saw appellant with a certain "Hapon" and Gilbert Estores at the crime scene, but it was only
appellant who was carrying a firearm and the two other people with him had no participation in the
shooting incident. Said circumstances bolster the credibility of Norberto Divina's testimony that
Estores and San Miguel may have been involved in the killing of his two young daughters.

After all, such reinvestigation would not subject Estores and San Miguel to double jeopardy because
the same only attaches if the following requisites are present: (1) a first jeopardy has attached before
the second; (2) the first jeopardy has been validly terminated; and (3) a second jeopardy is for the
same offense as in the first. In turn, a first jeopardy attaches only (a) after a valid indictment; (b)
before a competent court; (c) after arraignment; (d) when a valid plea has been entered; and (e)
when the accused has been acquitted or convicted, or the case dismissed or otherwise terminated
without his express consent.  In this case, the case against Estores and San Miguel was dismissed
133

before they were arraigned. Thus, there can be no double jeopardy to speak of. Let true justice be
served by reinvestigating the real participation, if any, of Estores and San Miguel in the killing of
Mary Grace and Claudine Divina.
WHEREFORE, the instant appeal is DISMISSED. The Decision of the Court of Appeals dated
January 30, 2012 in CA-G.R. CR HC No. 03252 is AFFIRMED with the following MODIFICATIONS:

(1) In Criminal Case No. 7698-G, the Court finds accused-appellant Ireneo
Jugueta GUILTY beyond reasonable doubt of two (2) counts of the crime of murder defined
under Article 248 of the Revised Penal Code, attended by the aggravating circumstance of
dwelling, and hereby sentences him to suffer two (2) terms of reclusion perpetua without
eligibility for parole under R.A. 9346. He is ORDERED to PAY the heirs of Mary Grace
Divina and Claudine Divina the following amounts for each of the two victims: (a)
₱100,000.00 as civil indemnity; (b) ₱100,000.00 as moral damages; (c) ₱100,000.00 as
exemplary damages; and (d) ₱50,000.00 as temperate damages.

(2) In Criminal Case No. 7702-G, the Court finds accused-appellant Ireneo
Jugueta GUILTY beyond reasonable doubt of four (4) counts of the crime of attempted
murder defined and penalized under Article 248 in relation to Article 51 of the Revised Penal
Code, attended by the aggravating circumstance of dwelling, and sentences him to suffer the
indeterminate penalty of four (4) years, two (2) months and one (1) day of prision
correccional, as minimum, to ten (10) years and one (1) day of prision mayor, as maximum,
for each of the four (4) counts of attempted murder. He is ORDERED to PAY moral
damages in the amount of P50,000.00, civil indemnity of P50,000.00 and exemplary
damages of PS0,000.00 to each of the four victims, namely, Norberto Divina, Maricel Divina,
Elizabeth Divina and Judy Ann Divina.

(3) Accused-appellant Ireneo Jugueta is also ORDERED to PAY interest at the rate of six

percent (6%) per annum from the time of finality of this decision until fully paid, to be
imposed on the civil indemnity, moral damages, exemplary damages and temperate
damages.

(4) Let the Office of the Prosecutor General, through the Department of Justice,
be FURNISHED a copy of this Decision. The Prosecutor General is DIRECTED to
immediately conduct a REINVESTIGATION on the possible criminal liability of Gilbert
Estores and Roger San Miguel regarding this case. Likewise, let a copy of this Decision be
furnished the Secretary of Justice for his information and guidance.

SO ORDERED.

G.R. No. 209373               July 30, 2014

JOEL YONGCO and JULIETO LAÑOJAN, Petitioners,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

x-----------------------x
G.R. No. 209414

ANECITO TANGIAN, JR., Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

VELASCO, JR., J.:

The Case

This treats of the consolidated Petitions for Review on Certiorari under Rule 45 in relation to Rule
125 of the Rules of Court, assailing the Decision  and Resolution of the Court of Appeals (CA) in CA-
1

G.R. CR No. 00549-MIN, dated January 21, 2013 and September 10, 2013, respectively. Said
rulings affirmed the Regional Trial Court (RTC) Decision convicting petitioners of qualified theft.

The Facts

Petitioners Joel Yongco, Julieta Lafiojan, and Anecito Tangian, Jr. were employees of the City
Government of Iligan. Tangian worked as a garbage truck driver for the city, while Yongco and
Lañojanwere security guards assigned to protect the premises of the City Engineer’s Office (CEO).
On November 14, 2005, an Information was filed before the RTC, Branch 5 in Iligan City, Lanao del
Norte charging the three with Qualified Theft. The information docketed as Crim. Case No. 12092
reads:

That on or about April 16, 2005, in the City of Ilagan, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, being then regular and casual employees of the City
government as drivers and helpers respectively, of a garbage truck with Plate No. 496, conspiring
and confederating togetherand mutually helping each other, with grave abuse of confidence reposed
upon them by the city government, and with intent to gain, did then and there willfully, unlawfully and
feloniously take, steal and carry away the following articles, to wit: one (1) unit transmission, boom,
differential of Tamaraw and l-beam of Nissan with a total value of ₱40,000.00, belonging to the City
government of Ilagan, represented by Atty. Rommel Abragan of the City Legal Office, Iligan City,
withoutthe consent and against the will of the said owner in the aforesaid sum of ₱40,000.00,
Philippine Currency. 2

During the arraignment held on February 16, 2006, accused petitioners entered a plea of not guilty
tothe offense charged. Pre-trial was then conducted and closed on July 25, 2006. Thereafter, trial on
the merits ensued.

Version of the Prosecution

The prosecution presented as one ofits witnesses a casual employee of the city government, Pablo
Salosod,who testified that on April 16, 2005 at around 1:30 a.m., while attending a wake at the
Cosmopolitan Funeral Parlor, he was fetched and requestedby petitioner Tangian to accompany him
to the CEO. At the office garage, Salosod and his fellow garbage collectors were allegedly directed
by petitioners Tangian and Yongco to load car parts that petitioners considered aswaste items, the
subject items of the theft, on the truck driven by Tangian. They then drove to Tominobo, Iligan City
where the materials were unloaded in front of Delfin Junk Store, and before the truck left the shop,
Salosod allegedly saw petitioner Lañojan giving a thumbs-up sign to Tangian. On the way back,
Tangian allegedly confessed to Salosod that it was Lañojan who requested that the items be brought
at the junk shop. Another employee, Rommel Ocaonilla, corroborated the testimony of Salosod.

Prosecution witness Oliveros Garcia meanwhile testified witnessing the unloading of the items in
front of the junk store, after which, Lañojan covered the items up with a sack. The following morning,
he allegedly saw Lañojan’s brother-in-law, who coincidentally works at the shop, take the items
inside.

Witnesses Dioscoro Galorio and Atty. Ulysses Lagcao, employee and consultant of the city
government, respectively, testified that they conducted investigations relative to the incidentand
found out that the items stolen consisted of one Nissan transmission,one unit boom, one Nissan I-
beam, and one differential of Tamaraw, with total valuation of PhP 12,000. Upon their investigation,
they recommended tothe city legal officer the filing of the present criminal case against the three
petitioners.

Version of the Defense

In defense, petitioners testified intheir behalves. Their testimony is summarized by the CA in the
Decision now on appeal in the following wise:

Joel Yongco, 34, single, x x x and a casual employee, testified that, on August 9, 2004, he was
issued a Job Order and detailed at the Civil Security Unit (CSU). He was assigned to guard the
building installation of the CEO. On April 15, 2005, he was on duty with his companion, one Mr.
Quintana. They relieved Lañojan and one Mr. Enumerables. Lañojan gave him (Yongco) four gate
passes and saidthat the area would have to be cleared because the "Bacod" Iliganvehicle would be
arriving. Yongco read the entries on one of[the] gate passes. Theyread: "Loaded assorted scraps
with remark to be thrown atthe dump site." At the bottom of the gate pass was the "note" of
EngineerCabahug with the signatures of the guards, Lañojan and Enumerables. From 5:00 PM to
12:00 midnight on April 15, 2005, there was only one shipment of scrap iron to the dump site. The
dump truck driven by Tangian entered the CEO premises at around 11:00 o’clock in the evening of
the same date. Tangian went to the yard where the scrap iron were situated and asked Yongco to
accompany and help him. Tangian gathered the scrap materials and the four of them (Tangian,
Yongco, and the 2 helpers of Tangian) loaded the said scrap to the dump truck. At around 12:45
P.M., after loading the items, Tangian drove away without giving a gate pass to the guards on duty.
Yongco did not ask Tangian for a gate pass because Yongco had one companion in the guard
house to get the gate pass.

Julieto Lañojan, 48, who was working in the CSU division for 20 years and assigned to guard the
CEO, testified that he was not on duty on April 15 and 16, 2005; he was on duty on April 14, 2005 at
7:00 A.M. up to April 15, 2005 of the same time. When Yongco and Quintana relieved him on April
15, 2005 at 7:00 in the morning, he gave the four gate passes which were used to ship outassorted
scrap irons to them to be kept for the file. Engineer Cabahug was the one who directed the removal
of the scrap iron because the area of the CEO would have to be cleared since new trucks for the
government were coming. His house, which was along the national highway, was about 40-50
metersaway from Delfin Junk Store. He knew Oliveros Garcia who was a kagawad of Tominobo,
Iligan City. Aside from that, Garcia had filed an ejectment case against him (Lañojan), which was still
pending in court.

xxxx

Anecito Tangian, Jr., 59, garbage truck driver at the City Engineer’s Office for 16 years, testified that
his highest level of educational attainment was Grade I. It was his tour of duty on April 15, 2005 at
9:00 o’clock in the evening up to April 16, 2005 at 6:00 o’clock in the morning. At around 5:30 in the
morning of April 15, 2005, Lañojan asked him to load scrap materials onto the garbage truck and to
bring them to the Delfin Junk Store in Tominobo. He asked Lañojan if there were any problems
about the loading ofthe said items. Lañojan answered that there were no problems about the loading
of the same, that the City Garbage would have to be cleared considering that "BACOD" trucks would
be arriving at thatarea. He followed Lañojan because the latter was the guard at the City Garage.
When hearrived for duty at the City Garage at around 9:00 in the evening, Yongco asked him if
Lañojan already informed him about the loading of the items. After that he checked up the garbage
truck while Yongco and the two helpers were loading the items. He did not know how many items
were loaded because he only helped the three of them during the loading of the differential. After
loading the scrap materials, Tangian and the two helpers drove away from the City Garage. They
dropped by the Cosmo Funeral Homes for more than an hour before they proceeded to Tominobo.
When they reached Delfin Junk Store, Lañojan gave a thumbs-up sign to Tangian, which meant
okay. He then left and started his work collecting garbage. 3

Ruling of the Regional Trial Court

On April 11, 2008, the RTC held petitioners liable for qualified theft via conspiracy. The dispositive
portion of the Decision reads:

WHEREFORE, premises considered, the Court finds the accused Julieto Lañojan, Anecito Tangian,
Jr., and Joel Yongco GUILTY beyond reasonable doubt of the crime of Qualified Theft defined and
penalized under Article 310 in relation to Article 309 of the Revised Penal Code, and the said
accused are hereby sentencedto a penalty of imprisonment of six (6) years, eight (8) monthsand
twenty (20) days of prision correccionalmaximum as the minimum term, to ten (10) years and eight
(8) months of prision mayormaximum, as the maximum term, of their indeterminate sentence
including the accessory penalties thereof.

SO ORDERED. 4

Aggrieved, petitioners, in their appeal, prayed that the CA reverse the RTC Decision. Petitioner
Tangian reiterated in his Brief that he should not be considered as a conspirator since he merely
innocentlyobeyed Lañojan’s instructions on the assumption that the latter was his superior and that
Lañojan was authorized to get rid of the scrap materials in the CEO premises and that he had no
criminal intent whatsoever.

In their joint brief, Yongco and Lañojan also disclaimed the existence of a conspiracy. Yongco, in his
defense, argued that Tangian and his two other helpers asked for his assistance which he extended
ingood faith, in view of Lañojan’s statement earlier that day that the office garage has to be cleared.
Lañojan, on the other hand, insisted that he cannot be considered as a conspirator since he was not
present at the time of taking, and that the mere giving of a thumbs-up sign to Tangian when the latter
delivered the materials to the junk shop does not amount to conspiracy.

Ruling of the Court of Appeals

On January 21, 2013, the CA issued the assailed Decision denying petitioners’ appeals. In affirming
the RTC Decision in toto, the CA ruled that there was indeed conspiracy because Tangian could
nothave taken out the items without a gate pass, but with the security guard Yongco’s participation,
he was able to do justthat. The CA also ruled that it is implausible that Tangian would just leave the
items in front of the junk shop unattended. Thus, the appellate court appreciated the testimonies of
the prosecution witnesses that Lañojan’s presence was not merely coincidental and that his thumbs-
up and his subsequent act of covering the materials with sacks indicate that the plan was for him to
receive the said items. Petitioners, via motion for reconsideration, sought the CA’s reversal of the
Decision only for the appellate court to deny the same through its challenged Resolution dated
September 10, 2013.

Not contented with the adverted Decision of the CA as reiterated in the Resolution, petitioners
Yongco and Lañojan jointly filed a Petition for Review on Certiorari while petitioner Tangian
separately filed his own.  The two petitions were later consolidated by this Court for resolution
1âwphi1

herein.

The Issue

As with most criminal cases, the main issue in the instant case is whether or not the CA erred in
sustaining petitioners’ conviction. Central to resolving this issue is determining whether or not there
indeed existed conspiracy between petitioners in committing the offense charged.

The Court’s Ruling

The petitions are bereft of merit.

Article 310, in relation to Art. 308,of the Revised Penal Code (RPC) defines Qualified Theft, thusly:

ART. 308. Who are liable for theft.—Theft is committed by any person who, with intent to gain but
without violence, against, or intimidation of persons nor force upon things, shall take personal
property of another without the latter’s consent.

Theft is likewise committed by:

1. Any person who, having found lost property, shall fail to deliver the same to the local
authorities or to its owner;

2. Any person who, after having maliciously damaged the property of another, shall remove
or make use of the fruits or objects of the damage caused by him; and

3. Any person who shall enter an enclosed estate or a field where trespass is forbidden or
which belongs to another and without the consent of its owner, shall hunt or fishupon the
same or shall gather fruits, cereals, or other forestor farm products.

xxxx

ART. 310. Qualified Theft.—The crime of theft shall be punished by the penalties next higher by two
degrees than those respectively specified in the next preceding article, if committed by a domestic
servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or
large cattle or consists of coconuts taken from the premises of a plantation, fishtaken from a
fishpond or fishery or if property is taken on the occasion of fire, earthquake, typhoon, volcanic
eruption, or any other calamity, vehicular accident or civil disturbance. (emphasis added)

Synthesizing the foregoing provisions, the elements of Qualified Theft, committed with grave abuse
of discretion, can simply be enumerated as follows:

1. Taking of personal property;

 2. That the said property belongs to another;

3. That the said taking be done with intent to gain;

4. That it be done without the owner’s consent;

5. That it be accomplished without the use of violence or intimidation against persons, nor of
force upon things; and

6. That it be done with grave abuse of confidence. 5

As correctly observed by the appellatecourt, all of the elements of Qualified Theft are present in this
case, viz:

There is no dispute that the items (transmission, boom arm, differential assembly, and I-beam) which
are the subject matter of this case belong to the CEO of Iligan City.  There is no dispute that these
1âwphi1

items, although considered "heap of scrap," have not yet been declared unserviceable or waste by
the proper authority or office. Nor have they been marked for proper disposal. Unless properly
disposed in accordance with Section 379 of the Local Government Code, these items are still
government properties or owned by the City of Iligan.

There is also no dispute that these items were taken away from the CEO and were already under
completeand effective control of the persons taking the same. This is because these items were
loaded onto the garbage truck driven by Tangian and brought to Tominobo at the Delfin Junk Store.

Apparently, the taking of these items was without the consent of the CEO of Iligan City because
there was no gate pass issued to that effect. Evidence shows that when the garbage truck left the
premises of the CEO, no gate pass was surrendered by Tangian. Yongco did not bother to ask for a
gate pass on the pretext that there was another guard on duty at the gate.

Intent to gain or animus lucrandiis an internal act that is presumed from the unlawful taking by the
offender of the thing subject to asportation. Actual gain is irrelevant as the important consideration is
the intent to gain. Since these items werebrought to the junk store, intent to gain becomes obvious.
The presumption of animus lucrandihas not been overturned.

It is equally patent that the taking of these items was done with grave abuse of confidence. The
accused in this case, itbears stressing, were guards and drivers with access tothe entrance and exit
of the CEO premises. In other words,they enjoyed the trust and confidence reposed on them by their
employer (the City ofIligan) to haveaccess throughout the CEO premises on account of their
respective duties. More so since the primary function of the CSU is to guard the properties, including
the said items, of the CEO. It was this trust and confidence that was gravely abused by them that
makes the theft qualified.6

Concisely stated, the fact of taking without consent is indubitable. Indeed, petitioners hinge their plea
for acquittal and supporting argument primarily on their lack of criminal intent and the observed
conspiracy.

Addressing the issue head on, We uphold the findings of the appellate court. No error can be
ascribed to the CA when it determined the existence of conspiracy between and among petitioners
in this case.
There is conspiracy when two or more persons come to an agreement concerning a felony and
decide to commit it.  Well-settled is the rule that in conspiracy, direct proof of a previousagreement is
7

not necessary as it may be deduced from the mode, method, and manner by which the offense was
perpetrated.  It may be inferred from the acts of the accused before, during, or after the commission
8

of the crime which, when taken together, would be enough to reveal a community of criminaldesign,
as the proof of conspiracy is frequently made by evidenceof a chain of circumstances. 9

In the case at bar, even though there is no showing of a prior agreement among the accused, their
separate acts taken and viewed together are actually connected and complementedeach other
indicating a unity of criminal design and purpose. 10

Tangian’s complicity in the illicit deed was manifest from the fact, as he himself admitted, that he
was the one who personally transported the stolen items from the CEO to the junkshop. His claim
that he was not aware of any irregularity in the act he performed is rendered dubious by his 16 years
of service as truck driver for the City of Iligan. To be sure, his record of service argues against his
claim of ignorance of the standard protocol that a gate pass to be issued by the CEO property
custodian should first be secured before taking out items from the CEO compound, including alleged
waste materials. He should also know better than to assume that Lañojan can authorize the
withdrawal of items without the requisite gate pass since Lañojan’s duty, as security guard, is
precisely to prevent the same.

Similarly, Yongco’s claim of good faith is belied by his own admission that he knew of the office
procedure that a gate pass is required every time something is taken out of the CEO premises. In
fact, four gate passes were given to him that morning by Lañojan, covering waste materials
withdrawn during the latter’s shift. At the very least, this should have reminded him of his duty to
demand a gate pass for property leaving the CEO premises. Neither memory lapses orlapses in the
performance of his duty will explain Yongco’s failure to demand a gate pass.The only viable
explanation is that he was in connivance with other petitioners. 11

Lastly, the RTC, with valid reason, tagged Lañojan as having instigated and marshalled the entire
scheme. To quote the trial court:

x x x As shown above, it appears that Lañojan broached the idea to Yongco that the items subject of
this case will be withdrawn under the pretext of clearing the CEO scrap yard of unserviceable waste
materials. Then Lañojan gave Yongco 4 gate passes apparently to be used to coverup or
camouflage the actual withdrawallater that evening. Then Lañojan told Tangian to load the items
under the same ploy of clearing the scrap yard of unserviceable waste materials and that they will
not encounter any problem. Finally, Lañojan was seen by Brgy. Kag. Oliveros Garcia at 1:30 o’clock
in the morning of April 16, 2005 receiving the items as they were dumped near the Delfin Junk
Store,Tominobo, Iligan City. After the items were dumped, Lañojan then gave Tangian the "thumbs-
up" sign, meaning everything is okay – clear proof of meeting of minds between Tangian and
Lañojan, and their collusion to steal the items under the pretext of disposing unserviceable waste
materials. This non-verbal "thumbs-up" sign was also seenby the truck helper Salosod.  x x x 12

In conspiracy, the act of one is the act of all. Once conspiracy is established, all the conspirators are
answerable as co-principals regardless of the extent or degree of their participation.  The guilt of one
13

is the guilt of all. It is common design which is the essence of conspiracy—conspirators may act
separately or together in different manners but always leading to the same unlawful result. The
character and effect of conspiracy are not to be adjudged by dismembering it and viewing its
separate parts but only by looking at it as a whole—acts done to giveeffect to conspiracy may be, in
fact, wholly innocent acts.  Applying this doctrine in the case at bench, it can reasonably be
14

concluded that despite Lañojan’s lack of physical participation in hauling the items to Tangian’s truck
and bringing them to the junk shop, he can still be liable for Qualified Theft via conspiracy. All told,
there is no cogent reason for us todisturb the findings of the appellate court, affirmatory of those of
the trial court.

WHEREFORE, premises considered, the consolidated petitions are hereby DENIED for lack of
merit. The CA's January 21, 2013 Decision and September 10, 2013 Resolution in CA-G.R. CR No.
00549-MIN are hereby AFFIRMED.

SO ORDERED.

G.R. No. 114261           February 10, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BERLY FABRO y AZUCENA, accused-appellant.

KAPUNAN, J.:

Appellant Berly Fabro y Azucena, together with her common-law husband Donald Pilay y Calag ad
Irene Martin, was charged with the crime of "violation of Section 21 (b) Art. IV, in relation to Section
4, Art. II of Republic Act No. 6425, as amended," under Criminal Case No. 11231-R of the Regional
Trial Court of Baguio City, in an information that reads:

That on or about the 7th day of April 1993, in the City of Baguio, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating
and mutually aiding one another, did then and there willfully, unlawfully and feloniously sell
and/or deliver to PO2 ELLONITO APDUHAN, who acted as poseur-buyer, one (1) kilo of
dried marijuana leaves, a prohibited drug without any authority of law, in violation of the
aforementioned provision of law.

CONTRARY TO LAW.1

Upon arraignment, appellant and Donald Pilay pleaded not guilty to the crime charged. 2 A co-
accused, Irene Martin, remains at large.

The prosecution's case against herein appellant is as follows:

At around 5:00 o'clock in the afternoon of April 7, 1993 in Camp Henry Allen, Baguio City, two
"concerned individuals," later identified as Gloria and Emma Borce,3 reported to Chief Inspector Allyn
Evasco of the 14th Narcotics Regional Field Office, that a couple living together as husband and wife
in Quirino Hill, Baguio City, was engaged, in selling marijuana. They added that sales usually took
place between 5:00 and 6:00 p.m. 4
Acting on that report, Chief Inspector Evasco organized two teams to conduct a buy-bust operation.
The first team was composed of SPO1 Modesto Carrera, SPO3 Delfin Salaria, SPO1 Galutan and
one civilian agent while the second team had Senior Inspector Franklin Mabanag and three (3)
members of the 191st Mobile Force Company.5 Mabanag was to be the overall team leader with
Batag as his assistant.6 SPO2 Ellonito Apduhan was designated poseur-buyer in the operation. After
briefing the group, Chief Inspector Evasco gave P600.00 as purchase money to Apduhan. The
amount consisted of six P100-bills with their serial numbers duly listed down. 7

With the civil informers in tow, the group proceeded to Quirino Hill on board three vehicles. They
arrived at around 5:45 p.m.8 All of disembarked from the vehicles except for Mabanag who stayed in
his car. Apduhan, Gloria and Emma took a stairway down to the house of Pilay and appellant below
street level. Batag stationed himself on the top portion of the stairway about twenty (20) meters from
Pilay's house.9 Carrera positioned himself at the upper portion of the road about thirty (30) meters
away from the same house.10 The back-up team deployed within the immediate vicinity in such a way
that they could clearly see the transaction between the suspected pushers and the poseur-buyer.

As Apduhan, Gloria and Emma drew near Pilay's residence, appellant met them. Her common-law
husband who appeared drunk was inside the house by the main door. 11 Gloria and Emma introduced
Apduhan to appellant as a stranger in the place who wanted to buy marijuana. Appellant told them
that a kilo would cost them P700.00 but she agreed to Apduhan's price of P600.00. 12 After Apduhan
had ordered a kilo of the contraband, appellant told them to wait a while. 13 Appellant then went to a
house just behind her own.14

After a few minutes, she returned in the company of another woman who was later identified as
Irene Martin. Appellant was holding something that looked like a brick wrapped in newspaper and
placed inside a transparent plastic bag. 15 Appellant handed the stuff to Apduhan. Her companion,
Irene Martin, demanded payment therefor. Apduhan gave her the P600.00. Apduhan removed the
wrapped of the merchandise. After ascertaining that it was a brick of marijuana, he made the pre-
arranged signal of lighting his cigarette. 16 Immediately, the back-up team rushed towards their
direction. However, before the team could reach them, Irene Martin ran away. Apduhan held
appellant so that she could not escape.17 Donald Pilay was also arrested. The buy-bust team in
pursuit of Irene Martin ended up in her house with barangay councilman Dominic Dicoy. Since her
house was locked, the team forcibly opened it. Inside, they found Irene's husband, Eusebio Martin.
The team obtained his consent to search the house. 18 The search proved futile — neither Irene nor
marijuana was found there.19 Thereafter, the team brought the suspects and the confiscated
marijuana to their office at Camp Allen.

The police prepared the booking sheet and arrest reports as regards Donald Pilay and
appellant.20 SPO1 Carrera, SPO2 Apduhan and SPO3 Batag executed a joint affidavit of
arrest.21 The police requested the PNP Crime Laboratory Service to examine the confiscated item.
To identify it, Apduhan, Batag and Carrera affixed their signatures thereon. 22 Forensic Chemist
Lalaine Ong Rodrigo confirmed that the seized item weighing one (1) kilo was indeed positive for
marijuana.23 However, since she could not go to Baguio City to testify, another forensic chemist,
Alma Margarita Villaseñor conducted another test on 995.5 grams of specimen and found it to be
positive for marijuana.24

The defense presented a different version of the incident leading to the arrest of appellant and her
common-law husband. Appellant denied having sold marijuana to Apduhan, claiming that Gloria and
Emma were the ones carrying the pack of marijuana when the team approached her. According to
appellant, at around 6:00 p.m. of April 7, 1993, she was busy cooking in her house at Middle Quirino
Hill, Baguio City. Her "husband" Donald was then drinking liquor with their neighbors Eusebio Martin,
George Matias and others.25
While cooking, appellant noticed Gloria and Emma Borce pass by. They went straight to the house
of her neighbor Irene Martin which was just behind her own house. 26 After a while, Irene summoned
appellant to her house where she was introduced to Gloria and Emma. The two asked appellant if
she could do home service for them as appellant was a beautician. They added that they needed a
favor from appellant. However, they were not able to tell appellant what favor it was because
appellant excused herself to go back home and resume cooking. Moments later, Gloria and Emma
followed appellant to her house. They reiterated their need for appellant's services as a beautician
provided that she would do them a favor. Appellant replied that she could not attend to them.
Hearing this, the two women left her. Appellant noticed that Gloria and Emma carried a regular-sized
black shoulder bag.27

Gloria and Emma returned three minutes later. Gloria was no longer carrying the shoulder bag.
Instead, she was holding something wrapped in a newspaper. 28 Appellant overheard Emma telling
Gloria to hold the marijuana.29 Armed men also accompanied the two women. Despite her
objections, appellant was immediately handcuffed by one of the armed men. 30 A commotion ensued
in the midst of which Gloria and Emma disappeared. Appellant was led to a waiting vehicle and was
brought to the investigating division of the 14th NARCOM unit in Camp Allen, Baguio City.

Appellants' co-accused, Donald Pilay recounted that on April 7, 1993, he and one Pelayos were at
the house of Dr. Pilando to get their wages as the latter's workers. Subsequently, they engaged in a
drinking spree somewhere in Hilltop near the vegetable section. In the afternoon of the same day,
they transferred to Doro's place. They resumed their drinking session at the house of Eusebio Martin
in Quirino Hill. On his way home, someone poked a gun at him and placed him in the trunk of a
vehicle. He was brought to Camp Allen where he saw his wife, appellant herein, with barangay
councilman Dicoy.31

Dominic Dicoy, the other witness for appellant, testified on how Donald Pilay wrestled with four
NARCOM agents on April 7, 1993 prior to his arrest. He corroborated the testimonies of the arresting
officers regarding the search conducted on the residence of Irene Martin.

On January 4, 1994, the trial court rendered the Decision disposing of Criminal Case No. 11231-R
as follows:

WHEREFORE, the Court Finds the accused Berly Fabro guilty beyond reasonable doubt of
the offense of Violation of Section 4 Article II of Republic Act No. 6425 as amended (Sale
and/or Delivery of Marijuana) as charged in the body of the Information, not its caption, and
hereby sentences her to Life Imprisonment and to pay a Fine of Twenty Thousand Pesos
(P20,000.00) without subsidiary imprisonment in case of Insolvency and to pay the costs.

The marijuana confiscated from accused Berly Fabro (Exh. H) being the subject of the
offense is hereby ordered confiscated and forfeited in favor of the State and referred to the
Dangerous Drugs Board for immediate destruction.

The accused Berly Fabro being a detention prisoner is entitled to be credited in the service
of her sentence 4/5 of her preventive imprisonment in accordance with Article 29 of the
Revised Penal Code.

For failure of the prosecution to prove his guilt beyond reasonable doubt, the accused
Donald Pilay is Acquitted of the offense charged in the Information with costs de oficio.
 Let an alias warrant of arrest be issued against co-accused Irene Martin to be implemented
by any law enforcing agency in the country so that upon her arrest she shall have a separate
arraignment and trial of her own.

SO ORDERED.32

In this appeal, appellant assails her conviction on the ground that her guilt has not been proven
beyond reasonable doubt. She contends that the following circumstances create a doubt as to her
culpability for the crime charged: (1) Contrary to the allegation of the prosecution, the amount of the
confiscated marijuana "weighed only 99.5 grams and not one (1) kilo;" (2) The marked money
allegedly used in the buy-bust operation was not recovered and presented during the trial; and (3)
Based on the testimony of the NBI, the real possessor of the confiscated properties was her co-
accused Irene Martin.

The grounds relied on by the appellant are clearly without merit.

Appellant posits that the amount of marijuana confiscated weighed only 99.5 grams.

Appellant relies on the testimony of Forensic Chemist Alma Margarita Villaseñor where she referred
to the confiscated marijuana as weighing 99.5 grams: 33

Q           Could you remember madame witness if your predecessor Sr. Inspector Lalaine
Ong conducted her own examination of this item?

A           It states on the chemical report that she conducted the examination.

Q           And how many grams of this item did she use of the examination (sic)?

A           I did not see the representative sample.

Q           But when you received the item, how much did it weight?

A           99.5.

Q           So it must be lesser now?

A           Yes, sir.34

However, it should be noted that in her written report Villaseñor indicated that the specimen had a
"total of 999.5 grams of dried suspected marijuana fruiting tops." 35

As between a writing or document made contemporaneously with a transaction in which are

evidenced facts pertinent to an issue, when admitted as proof of these facts, is ordinarily regarded
as more reliable proof and of greater probative value than oral testimony of a witness as to such
facts based upon memory and recollection. The reason behind this is obvious, human memory is
fallible and its force diminishes with the lapse of time. 36 Hence, as between Villaseñor's testimony
and her written report, the latter is considered as the more accurate account as to the amount of
marijuana examined.
Moreover, the initial Chemistry Report conducted by Forensic Chemist Lalaine Ong Rodrigo on April
8, 1993, a day after its confiscation, recorded that the specimen submitted for laboratory
examination was "one (1) kilo of suspected dried fruiting tops."37

This Court is convinced that despite Villaseñor's testimony that the marijuana weighed 99.5 grams,
there is overwhelming documentary and testimonial evidence, as correctly appreciated by the trial
court, pointing to the fact that the contraband weighed one (1) kilo when it was seized.

The prosecution's failure to present the marked money used in buying marijuana from appellant did
not cause a dent on the prosecution's case. Such failure was on account of Irene Martin's flight after
taking the money used in the sale. It must be stressed, however, that failure to present the marked
money is of no great consequence. The Dangerous Drugs Law punishes the mere act of delivery of
prohibited drugs after the offer to buy by the entrapping officer has been accepted by the prohibited
drug seller.38 Rather, of importance are the facts that the prohibited drug given or delivered by the
accused was presented before the court and that the accused was clearly identified as the offender
by the prosecution eyewitness.39 Stated differently, the buy-bust money is not indispensable to the
conviction of an accused provided that the prosecution has adequately proven the sale of the
dangerous drug.40

Appellant's contention that Irene Martin was the real culprit being the source of the contraband does
not in any way absolve her of the crime of selling marijuana. While it is true that it was Irene Martin
who took the money, appellant was the one who negotiated with the poseur-buyers; fetched her co-
accused; carried and handed over the marijuana to Apduhan. The acts of Martin and appellant
clearly show a unity of purpose in the consummation of the sale of marijuana. In other words,
between Martin and appellant, conspiracy in the commission of the crime was indubitably proven by
the prosecution.

A final note. The information denotes the crime as a "VIOLATION OF SECTION 21 (b) ART. IV IN
RELATION TO SECTION 4/ARTICLE II OF REPUBLIC ACT 6425 AS AMENDED". 41 This is an
erroneous designation of the crime committed. Section 21 of R.A. 6425 reads:

Sec. 21. Attempt and Conspiracy. The same penalty prescribed by this Act for the
commission of the offense shall be imposed in case of any . . . conspiracy to commit the
same in the following cases:

xxx     xxx     xxx

b) Sale, administration, delivery, distribution and transportation of dangerous drugs.

It is clear that Section 21 (b) of R.A. 6425 punishes the mere conspiracy to commit the offense of
selling, delivering, distributing and transporting of dangerous drugs. Conspiracy herein refers to the
mere agreement to commit the said acts and not the actual execution thereof. While the rule is that a
mere conspiracy to commit a crime without doing any overt act is not punishable, the exception is
when such is specifically penalized by law, as in the case of Section 21 of Republic Act 6425.
Conspiracy as crime should be distinguished from conspiracy as a manner of incurring criminal
liability the latter being applicable to the case at bar.

In any event, such error in the information is not fatal. The body of the information states that the
crime for which the petitioner is charged is as follows:
 the above-named accused, conspiring, confederating and mutually aiding one another, did
there willfully, unlawfully and feloniously sell and/or deliver to PO2 Elonito Apduhan, who
acted as poseur buyer, one (1) kilo of dried marijuana leaves. . .

It has been our consistent ruling that what is controlling are the actual recital of facts in the body of
the information and not the caption or preamble of the crime. 42

Having considered the assignments of error and finding no basis which, from any aspect of the case,
would justify us in interfering with the findings of the trial court, it results that the appealed decision
must be AFFIRMED in toto.

SO ORDERED. 1âwphi1.nêt

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 162540               July 13, 2009

GEMMA T. JACINTO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERALTA, J.:

Before us is a petition for review on certiorari filed by petitioner Gemma T. Jacinto seeking the
reversal of the Decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 23761 dated December
16, 2003, affirming petitioner's conviction of the crime of Qualified Theft, and its Resolution 2 dated
March 5, 2004 denying petitioner's motion for reconsideration.

Petitioner, along with two other women, namely, Anita Busog de Valencia y Rivera and Jacqueline
Capitle, was charged before the Regional Trial Court (RTC) of Caloocan City, Branch 131, with the
crime of Qualified Theft, allegedly committed as follows:

That on or about and sometime in the month of July 1997, in Kalookan City, Metro Manila, and within
the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually
helping one another, being then all employees of MEGA FOAM INTERNATIONAL INC., herein
represented by JOSEPH DYHENGCO Y CO, and as such had free access inside the aforesaid
establishment, with grave abuse of trust and confidence reposed upon them with intent to gain and
without the knowledge and consent of the owner thereof, did then and there willfully, unlawfully and
feloniously take, steal and deposited in their own account, Banco De Oro Check No. 0132649 dated
July 14, 1997 in the sum of ₱10,000.00, representing payment made by customer Baby Aquino to
the Mega Foam Int'l. Inc. to the damage and prejudice of the latter in the aforesaid stated amount of
₱10,000.00.

CONTRARY TO LAW.3

The prosecution's evidence, which both the RTC and the CA found to be more credible, reveals the
events that transpired to be as follows.

In the month of June 1997, Isabelita Aquino Milabo, also known as Baby Aquino, handed petitioner
Banco De Oro (BDO) Check Number 0132649 postdated July 14, 1997 in the amount of
₱10,000.00. The check was payment for Baby Aquino's purchases from Mega Foam Int'l., Inc., and
petitioner was then the collector of Mega Foam. Somehow, the check was deposited in the Land
Bank account of Generoso Capitle, the husband of Jacqueline Capitle; the latter is the sister of
petitioner and the former pricing, merchandising and inventory clerk of Mega Foam.

Meanwhile, Rowena Ricablanca, another employee of Mega Foam, received a phone call sometime
in the middle of July from one of their customers, Jennifer Sanalila. The customer wanted to know if
she could issue checks payable to the account of Mega Foam, instead of issuing the checks payable
to CASH. Said customer had apparently been instructed by Jacqueline Capitle to make check
payments to Mega Foam payable to CASH. Around that time, Ricablanca also received a phone call
from an employee of Land Bank, Valenzuela Branch, who was looking for Generoso Capitle. The
reason for the call was to inform Capitle that the subject BDO check deposited in his account had
been dishonored.

Ricablanca then phoned accused Anita Valencia, a former employee/collector of Mega Foam, asking
the latter to inform Jacqueline Capitle about the phone call from Land Bank regarding the bounced
check. Ricablanca explained that she had to call and relay the message through Valencia, because
the Capitles did not have a phone; but they could be reached through Valencia, a neighbor and
former co-employee of Jacqueline Capitle at Mega Foam.

Valencia then told Ricablanca that the check came from Baby Aquino, and instructed Ricablanca to
ask Baby Aquino to replace the check with cash. Valencia also told Ricablanca of a plan to take the
cash and divide it equally into four: for herself, Ricablanca, petitioner Jacinto and Jacqueline Capitle.
Ricablanca, upon the advise of Mega Foam's accountant, reported the matter to the owner of Mega
Foam, Joseph Dyhengco.

Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to confirm that the latter indeed
handed petitioner a BDO check for ₱10,000.00 sometime in June 1997 as payment for her
purchases from Mega Foam.4 Baby Aquino further testified that, sometime in July 1997, petitioner
also called her on the phone to tell her that the BDO check bounced. 5 Verification from company
records showed that petitioner never remitted the subject check to Mega Foam. However, Baby
Aquino said that she had already paid Mega Foam ₱10,000.00 cash in August 1997 as replacement
for the dishonored check.6

Generoso Capitle, presented as a hostile witness, admitted depositing the subject BDO check in his
bank account, but explained that the check came into his possession when some unknown woman
arrived at his house around the first week of July 1997 to have the check rediscounted. He parted
with his cash in exchange for the check without even bothering to inquire into the identity of the
woman or her address. When he was informed by the bank that the check bounced, he merely
disregarded it as he didn’t know where to find the woman who rediscounted the check.
Meanwhile, Dyhengco filed a Complaint with the National Bureau of Investigation (NBI) and worked
out an entrapment operation with its agents. Ten pieces of ₱1,000.00 bills provided by Dyhengco
were marked and dusted with fluorescent powder by the NBI. Thereafter, the bills were given to
Ricablanca, who was tasked to pretend that she was going along with Valencia's plan.

On August 15, 2007, Ricablanca and petitioner met at the latter's house. Petitioner, who was then
holding the bounced BDO check, handed over said check to Ricablanca. They originally intended to
proceed to Baby Aquino's place to have the check replaced with cash, but the plan did not push
through. However, they agreed to meet again on August 21, 2007.

On the agreed date, Ricablanca again went to petitioner’s house, where she met petitioner and
Jacqueline Capitle. Petitioner, her husband, and Ricablanca went to the house of Anita Valencia;
Jacqueline Capitle decided not to go with the group because she decided to go shopping. It was only
petitioner, her husband, Ricablanca and Valencia who then boarded petitioner's jeep and went on to
Baby Aquino's factory. Only Ricablanca alighted from the jeep and entered the premises of Baby
Aquino, pretending that she was getting cash from Baby Aquino. However, the cash she actually
brought out from the premises was the ₱10,000.00 marked money previously given to her by
Dyhengco. Ricablanca divided the money and upon returning to the jeep, gave ₱5,000.00 each to
Valencia and petitioner. Thereafter, petitioner and Valencia were arrested by NBI agents, who had
been watching the whole time.

Petitioner and Valencia were brought to the NBI office where the Forensic Chemist found fluorescent
powder on the palmar and dorsal aspects of both of their hands. This showed that petitioner and
Valencia handled the marked money. The NBI filed a criminal case for qualified theft against the two
and one Jane Doe who was later identified as Jacqueline Capitle, the wife of Generoso Capitle.

The defense, on the other hand, denied having taken the subject check and presented the following
scenario.

Petitioner admitted that she was a collector for Mega Foam until she resigned on June 30, 1997, but
claimed that she had stopped collecting payments from Baby Aquino for quite some time before her
resignation from the company. She further testified that, on the day of the arrest, Ricablanca came to
her mother’s house, where she was staying at that time, and asked that she accompany her
(Ricablanca) to Baby Aquino's house. Since petitioner was going for a pre-natal check-up at the
Chinese General Hospital, Ricablanca decided to hitch a ride with the former and her husband in
their jeep going to Baby Aquino's place in Caloocan City. She allegedly had no idea why Ricablanca
asked them to wait in their jeep, which they parked outside the house of Baby Aquino, and was very
surprised when Ricablanca placed the money on her lap and the NBI agents arrested them.

Anita Valencia also admitted that she was the cashier of Mega Foam until she resigned on June 30,
1997. It was never part of her job to collect payments from customers. According to her, on the
morning of August 21, 1997, Ricablanca called her up on the phone, asking if she (Valencia) could
accompany her (Ricablanca) to the house of Baby Aquino. Valencia claims that she agreed to do so,
despite her admission during cross-examination that she did not know where Baby Aquino resided,
as she had never been to said house. They then met at the house of petitioner's mother, rode the
jeep of petitioner and her husband, and proceeded to Baby Aquino's place. When they arrived at
said place, Ricablanca alighted, but requested them to wait for her in the jeep. After ten minutes,
Ricablanca came out and, to her surprise, Ricablanca gave her money and so she even asked,
"What is this?" Then, the NBI agents arrested them.

The trial of the three accused went its usual course and, on October 4, 1999, the RTC rendered its
Decision, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, the Court finds accused Gemma Tubale De Jacinto y
Latosa, Anita Busog De Valencia y Rivera and Jacqueline Capitle GUILTY beyond reasonable
doubt of the crime of QUALIFIED THEFT and each of them is hereby sentenced to suffer
imprisonment of FIVE (5) YEARS, FIVE (5) MONTHS AND ELEVEN (11) DAYS, as minimum, to
SIX (6) YEARS, EIGHT (8) MONTHS AND TWENTY (20) DAYS, as maximum.

SO ORDERED.7

The three appealed to the CA and, on December 16, 2003, a Decision was promulgated, the
dispositive portion of which reads, thus:

IN VIEW OF THE FOREGOING, the decision of the trial court is MODIFIED, in that:

(a) the sentence against accused Gemma Jacinto stands;

(b) the sentence against accused Anita Valencia is reduced to 4 months arresto

mayor medium.

(c) The accused Jacqueline Capitle is acquitted.

SO ORDERED.

A Partial Motion for Reconsideration of the foregoing CA Decision was filed only for petitioner
Gemma Tubale Jacinto, but the same was denied per Resolution dated March 5, 2004.

Hence, the present Petition for Review on Certiorari filed by petitioner alone, assailing the Decision
and Resolution of the CA. The issues raised in the petition are as follows:

1. Whether or not petitioner can be convicted of a crime not charged in the information;

2. Whether or not a worthless check can be the object of theft; and

3. Whether or not the prosecution has proved petitioner's guilt beyond reasonable doubt. 8

The petition deserves considerable thought.

The prosecution tried to establish the following pieces of evidence to constitute the elements of the
crime of qualified theft defined under Article 308, in relation to Article 310, both of the Revised Penal
Code: (1) the taking of personal property - as shown by the fact that petitioner, as collector for Mega
Foam, did not remit the customer's check payment to her employer and, instead, appropriated it for
herself; (2) said property belonged to another − the check belonged to Baby Aquino, as it was her
payment for purchases she made; (3) the taking was done with intent to gain – this is presumed from
the act of unlawful taking and further shown by the fact that the check was deposited to the bank
account of petitioner's brother-in-law; (4) it was done without the owner’s consent – petitioner hid the
fact that she had received the check payment from her employer's customer by not remitting the
check to the company; (5) it was accomplished without the use of violence or intimidation against
persons, nor of force upon things – the check was voluntarily handed to petitioner by the customer,
as she was known to be a collector for the company; and (6) it was done with grave abuse of
confidence – petitioner is admittedly entrusted with the collection of payments from customers.
However, as may be gleaned from the aforementioned Articles of the Revised Penal Code, the
personal property subject of the theft must have some value, as the intention of the accused
is to gain from the thing stolen. This is further bolstered by Article 309, where the law provides
that the penalty to be imposed on the accused is dependent on the value of the thing stolen.

In this case, petitioner unlawfully took the postdated check belonging to Mega Foam, but the same
was apparently without value, as it was subsequently dishonored. Thus, the question arises on
whether the crime of qualified theft was actually produced.

The Court must resolve the issue in the negative.

Intod v. Court of Appeals9 is highly instructive and applicable to the present case. In Intod, the
accused, intending to kill a person, peppered the latter’s bedroom with bullets, but since the intended
victim was not home at the time, no harm came to him. The trial court and the CA held Intod guilty of
attempted murder. But upon review by this Court, he was adjudged guilty only of an impossible
crime as defined and penalized in paragraph 2, Article 4, in relation to Article 59, both of the
Revised Penal Code, because of the factual impossibility of producing the crime. Pertinent portions
of said provisions read as follows:

Article 4(2). Criminal Responsibility. - Criminal responsibility shall be incurred:

xxxx

2. By any person performing an act which would be an offense against persons or property, were it
not for the inherent impossibility of its accomplishment or on account of the employment of
inadequate to ineffectual means. (emphasis supplied)

Article 59. Penalty to be imposed in case of failure to commit the crime because the means
employed or the aims sought are impossible. - When the person intending to commit an offense has
already performed the acts for the execution of the same but nevertheless the crime was not
produced by reason of the fact that the act intended was by its nature one of impossible
accomplishment or because the means employed by such person are essentially inadequate to
produce the result desired by him, the court, having in mind the social danger and the degree of
criminality shown by the offender, shall impose upon him the penalty of arresto mayor or a fine
ranging from 200 to 500 pesos.

Thus, the requisites of an impossible crime are: (1) that the act performed would be an offense
against persons or property; (2) that the act was done with evil intent; and (3) that its
accomplishment was inherently impossible, or the means employed was either inadequate or
ineffectual. The aspect of the inherent impossibility of accomplishing the intended crime under Article
4(2) of the Revised Penal Code was further explained by the Court in Intod10 in this wise:

Under this article, the act performed by the offender cannot produce an offense against persons or
property because: (1) the commission of the offense is inherently impossible of accomplishment; or
(2) the means employed is either (a) inadequate or (b) ineffectual.

That the offense cannot be produced because the commission of the offense is inherently
impossible of accomplishment is the focus of this petition. To be impossible under this clause, the
act intended by the offender must be by its nature one impossible of accomplishment. There must be
either (1) legal impossibility, or (2) physical impossibility of accomplishing the intended act in order to
qualify the act as an impossible crime.
Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime.

xxxx

The impossibility of killing a person already dead falls in this category.

On the other hand, factual impossibility occurs when extraneous circumstances unknown to the
actor or beyond his control prevent the consummation of the intended crime. x x x 11

In Intod, the Court went on to give an example of an offense that involved factual impossibility, i.e., a
man puts his hand in the coat pocket of another with the intention to steal the latter's wallet, but gets
nothing since the pocket is empty.

Herein petitioner's case is closely akin to the above example of factual impossibility given in Intod. In
this case, petitioner performed all the acts to consummate the crime of qualified theft, which is a
crime against property. Petitioner's evil intent cannot be denied, as the mere act of unlawfully taking
the check meant for Mega Foam showed her intent to gain or be unjustly enriched. Were it not for
the fact that the check bounced, she would have received the face value thereof, which was not
rightfully hers. Therefore, it was only due to the extraneous circumstance of the check being
unfunded, a fact unknown to petitioner at the time, that prevented the crime from being produced.
The thing unlawfully taken by petitioner turned out to be absolutely worthless, because the check
was eventually dishonored, and Mega Foam had received the cash to replace the value of said
dishonored check. 1avvphi1

The fact that petitioner was later entrapped receiving the ₱5,000.00 marked money, which she
thought was the cash replacement for the dishonored check, is of no moment. The Court held
in Valenzuela v. People12 that under the definition of theft in Article 308 of the Revised Penal Code,
"there is only one operative act of execution by the actor involved in theft ─ the taking of personal
property of another." Elucidating further, the Court held, thus:

x x x Parsing through the statutory definition of theft under Article 308, there is one apparent answer
provided in the language of the law — that theft is already "produced" upon the "tak[ing of] personal
property of another without the latter’s consent."

xxxx

x x x when is the crime of theft produced? There would be all but certain unanimity in the position
that theft is produced when there is deprivation of personal property due to its taking by one with
intent to gain. Viewed from that perspective, it is immaterial to the product of the felony that the
offender, once having committed all the acts of execution for theft, is able or unable to freely dispose
of the property stolen since the deprivation from the owner alone has already ensued from such acts
of execution. x x x

xxxx

x x x we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the
moment the offender gains possession of the thing, even if he has no opportunity to dispose of the
same. x x x

x x x Unlawful taking, which is the deprivation of one’s personal property, is the element which
produces the felony in its consummated stage. x x x 13
From the above discussion, there can be no question that as of the time that petitioner took
possession of the check meant for Mega Foam, she had performed all the acts to
consummate the crime of theft, had it not been impossible of accomplishment in this
case. The circumstance of petitioner receiving the ₱5,000.00 cash as supposed replacement for the
dishonored check was no longer necessary for the consummation of the crime of qualified theft.
Obviously, the plan to convince Baby Aquino to give cash as replacement for the check was hatched
only after the check had been dishonored by the drawee bank. Since the crime of theft is not a
continuing offense, petitioner's act of receiving the cash replacement should not be considered as a
continuation of the theft. At most, the fact that petitioner was caught receiving the marked money
was merely corroborating evidence to strengthen proof of her intent to gain.

Moreover, the fact that petitioner further planned to have the dishonored check replaced with cash
by its issuer is a different and separate fraudulent scheme. Unfortunately, since said scheme was
not included or covered by the allegations in the Information, the Court cannot pronounce judgment
on the accused; otherwise, it would violate the due process clause of the Constitution. If at all, that
fraudulent scheme could have been another possible source of criminal liability.

IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals,
dated December 16, 2003, and its Resolution dated March 5, 2004, are MODIFIED. Petitioner
Gemma T. Jacinto is found GUILTY of an IMPOSSIBLE CRIME as defined and penalized in Articles
4, paragraph 2, and 59 of the Revised Penal Code, respectively. Petitioner is sentenced to suffer the
penalty of six (6) months of arrresto mayor, and to pay the costs.

SO ORDERED.

G.R. No. 171284               June 29, 2015

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ALFREDO DULIN Y NARAG, Accused-Appellant.

DECISION

BERSAMIN, J.:

The accused is guilty only of homicide in a prosecution for murder where the record does not
substantiate the attendance of treachery. But he may not benefit from the privileged mitigating
circumstance of incomplete self-defense if there was no unlawful aggression from the victim. The
Case

Alfredo Dulin y Narag appeals the decision promulgated on August 26, 2005,  whereby the Court of
1

Appeals (CA) affirmed with modification his conviction for the murder of Francisco Batulan rendered
on December 29, 1997 by the Regional Trial Court (RTC), Branch 3, in Tuguegarao, Cagayan.  In 2
convicting him, the RTC had appreciated the privileged mitigating circumstance of incomplete self-
defense, and had then sentenced him to "suffer the penalty of reclusion temporal in its maximum
period of imprisonment ranging from 17 years and 4 months and 1 day to 20 years." On appeal, the
CA prescribed reclusion perpetua.

Antecedents

The information filed on January7, 1991 averred as follows:

That on or about August 22, 1990, in the Municipality of Tuguegarao, Province of Cagayan, and
within the jurisdiction of this Honorable Court, the said accused, Alfredo Dulin y Narag alias Freddie,
armed with a sharp blade(d) instrument, with intent to kill, with evident premeditation and with
treachery did then and there willfully, unlawfully and feloniously attack, assault and stab one,
Francisco Batulan, inflicting upon him several stab wounds on the different parts of his body which
caused his death.

Contrary to law. 3

During the trial, the Prosecution presented four witnesses, namely: (a) Dr. Nelson Macaraniag, (b)
Alexander Tamayao, (c) Romulo Cabalza and (d) Estelita Batulan. Their version follows. Tamayao
was on Tamayao Street in Atulayan Norte, Tuguegarao at about 10:00 o’clock in the evening of
August 22, 1990 when a young man came running from the house of Vicente Danao towards the
house of Batulan, shouting that his Uncle Totoy (Batulan) had been stabbed. Tamayao rushed
towards Danao’s house, which was about 30 meters from his own house, and there he saw
Dulinstabbing Batulan who was already prostrate face down. Dulin was on top of Batulan, as if
kneeling with his left foot touching the ground. Dulin was holding Batulan by the hair with his left
hand, and thrusting the knife at the latter with his right hand. Seeing this, Tamayao ran towards
Batulan’s house to inform Estelita Batulan, the victim’s wife who was his aunt, about the incident. He
went home afterwards.

Tamayao mentioned of the long standing grudge between Batulan and Dulin, and of seeing them
fighting in April 1990. He recalled Dulin uttering on two occasions: He will soon have his day and I
will kill him.
4

Cabalza, a barangay tanod, was in his house around 10:00 o’clock in the evening of August 22,
1990 when he heard the commotion in Danao’s house which was facing his house. It was Carolina,
Danao’s daughter, screaming for help. He thus sought out a fellow barangay tanod. On his return to
the scene, he found Batulanat the door of Danao’s house, with Dulin wielding a sharp pointed
instrument, about 6-7 inches long. Fearing for his safety, he rushed to the Barangay Hall to seek the
assistance of Edwin Cabalza and Nanding Buenaflor to bring Batulan to the Provincial Hospital in
Carig, Tuguegarao. 5

Estelita recalled that Tamayao went to her house around 10:00 o’clock in the evening of August 22,
1990 to inform her that Dulin had stabbed her husband in Danao’s house. She rushed to Danao’s
house but fainted on the way. Upon regaining consciousness, she learned that her husband had
been rushed to the hospital. On her way to the hospital, she met Barangay Captain Loreto Meman,
who told her: Finally, Freddie Dulin killed your husband as he vowed to do. At the hospital, she was
told that her husband had sustained two wounds in the back and several stab wounds in the front,
and was being attended to at the hospital’s intensive care unit (ICU) before he expired.

Estelita said that Barangay Captain Meman went to her husband’s wake and repeated what he had
said to her about Dulin. But when she later on sought out Barangay Captain Meman to ask him to
confirm what he had told her about Dulin’s vowing to kill her husband, Barangay Captain Meman’s
response was: I’m sorry I cannot go and declare what I have stated because I am afraid of FREDDIE
and he will kill all those persons who will testify in their favor.
6

Estelita mentioned of the heated discussion between her husband and his nephew, Seong Bancud,
in front of Danao’s house in April 1990. On that occasion, Dulin wielded a knife with which he tried to
stab her husband. Dulin was pacified only when she went to the aid of her husband, but she then
heard Dulin saying: You will soon have your day, I will kill you. 7

Batulan was attended to at the Cagayan Valley Regional Hospital on August 22, 1990 by Dr.
Macaraniag, who said that the victim was in a state of shock from his 12 stab wounds. Dr.
Macaraniag was part of the three teams that conducted the surgery on Batulan. He issued the
Medico-Legal Certificate8 attesting that Batulan died on August 24, 1990 at 12:15 a.m.; and that
Batulan had sustained several injuries, as follows:

Multiple stab wounds #12

(1) Lacerated wound, sternum, 1 cm.

(2) Lacerated wound, 4th ICS, 2 cm. MCL

(3) Lacerated wound, 1 cm. post axillary line

(4) Lacerated wound, 3 x 2 cm. 3 cm below scapula

(5) Lacerated wound, 3 cm. lateral aspect, left hand

(6) Lacerated wound, 3 cm. anterior aspect, left hand

(7) Lacerated wound, 3 cm. anterior aspect, about 3 cm. from elbow, left

(8) Lacerated wound, 2 cm. middle third, left forearm

(9) Lacerated wound, 3 cm. posterior aspect left forearm 4 cm. from left wrist

(10) Lacerated wound, 3 cm. lateral aspect of left foot

(11) Lacerated wound, 4 cm. lateral aspect, left thigh

(12) Lacerated wound, 2 cm. scapular area.

x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x. 9

Dr. Macaraniag stated the cause of death to be "Hypovolemic shock secondary to Massive
Hemothorax secondary to Multiple stab wounds."  He clarified in court that there were clerical errors
10

in the preparation of the Medico-Legal Certificate because his handwritten records indicated that
Batulan had sustained stab instead of lacerated wounds. He surmised that one of the clerks could
have misread his handwriting in the process of transcription. 11
Estelita declared that her late husband had earned a living from buying pigs, deriving a monthly
income of ₱8,000.00; that their marriage bore only one child; that she spent more or less ₱6,500.00
for Batulan’s hospitalization, including his medicines, and ₱36,000.00 for Batulan’s 10-day wake, his
burial attire and his coffin; that during the wake she butchered one cow worth ₱6,800.00 and six
pigsworth ₱15,000.00; that his death caused her and her family so much pain; and that she and her
family expended a total of ₱70,000.00, plus the ₱20,000.00 for the counsel’s services in bringing the
criminal charge against Dulin.12

In his defense, Dulin testified thatin the evening of August 22, 1990, he was in his house in Atulayan
Norte, Tuguegarao, Cagayan with Doming Narag, Imelda Danao, Jun Danao, Carolina Dulin and
Caridad Narag; that Nicanor Annariao and Raymund Soriano arrived at his house to see the fighting
cocks being sold by Alberto Eugenio (Alberto); that Alberto was not yet around, arriving only at about
8:00 o’clock in the evening to talk with Raymund and Nicanor about the price of the fighting cocks;
that after their transaction, Alberto served Nicanor and Raymund food, and he (Dulin) and Jun
Danao thereafter accompanied Raymund and Nicanor to the highway to get a tricycle ride, but on
their way, they passed Angel Bancud who called out to him: that he (Dulin) asked the others to go
ahead, and he would just catch up with them; that as he (Dulin) approached Bancud, Batulan, the
cousin of his (Dulin) mother, stabbed him on the right side of his body and in the left hand; that he
complained to Batulan: Uncle, you hit me (Dinisgrasya nakun), but Batulan replied: I will really kill
you; that he (Dulin) ran to the upper level of Carolina Danao’s house, pursued by Batulan who
stabbed him again several times; that they grappled for the weapon until he (Dulin) was able to wrest
it from Batulan; that he (Dulin) stabbed Batulan with the weapon, and they struggled until he (Dulin)
felt weak, eventually falling to the ground; and that he (Dulin) regained consciousness only the next
day at the hospital.

Dulin insisted that there was no grudge between him and Batulan, but interjected that the barangay
captain would summon him to bring Batulan home each time the latter got drunk at night.

Erlinda Danao, Records Officer of the Cagayan Valley Regional Hospital in Tuguegarao, Cagayan,
authenticated the hospital records showing that Dulin had also been injured.  Judgment of the RTC
13

On December 29, 1997, the RTC rendered its decision convicting Dulin of murder,  to wit:
14

WHEREFORE, judgment is hereby rendered finding the accused Alfredo Dulin guilty beyond
reasonable doubt of the crime of Murder, and appreciating the privileged mitigating circumstance of
incomplete self-defense and no aggravating circumstance, this Court hereby lowers the penalty of
said crime by two degrees and hereby sentences him to suffer the penalty of reclusion temporal in
its maximum period of imprisonment ranging from 17 years and 4 months and 1 day to 20 years and
to indemnify the heirs of the victim in the amount of ₱50,000.00 and to pay actual damages in the
amount of ₱36,000.00 and moral damages for ₱40,000.00.

Without subsidiary imprisonment in case of insolvency and without pronouncement as to costs. SO

ORDERED. 15

Decision of the CA

In his appeal, Dulin contended that his crime should be homicide instead of murder, considering the
RTC’s appreciation of incomplete self-defense as a privileged mitigating circumstance; and that even
if self-defense should be unavailing, he could be found guilty only of homicide because it was the
victim who had first attacked by stabbing him, and that the multiple wounds inflicted on the victim did
not mean that he had not been justified in killing the victim. He argued that the penalty imposed on
him was incorrect considering the absence of any aggravating circumstance and the presence of the
privileged mitigating circumstance of incomplete self-defense.
On August 26, 2005, the CA affirmed the conviction subject to the modification of the civil liability,
decreeing:

The Court agrees with the OSG representing the State that the penalty requires modification. The
Court a quo committed error in the imposition of the proper penalty. The crime committed by
appellant in the case at bench is murder qualified by treachery. There being no aggravating and no
mitigating circumstance, the proper penalty is reclusion perpetua. Where no mitigating or
aggravating circumstance attended the commission of the crime, the medium period of the
imposable penalty, which is reclusion perpetua, should be imposed by the trial court.

WHEREFORE, the judgment of conviction is hereby AFFIRMED subject to the modification of the
penalty and awards of damages. Appellant ALFREDO DULIN y NARAG is hereby sentenced to
suffer the penalty of reclusion perpetua. The award of ₱36,000 actual damages is DELETED.
Appellant is ordered to pay the heirs of Francisco Batulan ₱20,000 as temperate damages and
₱50,000 by way of moral damages.

SO ORDERED. 16

On January 12, 2006, the CA denied Dulin’s motion for reconsideration. 17

Issues

In this appeal, Dulin submits the following issues for our review and consideration, to wit:

WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPRECIATE THE

PRESENCE OF THE JUSTIFYING CIRCUMSTANCE OF SELF-DEFENSE DESPITE CLEAR AND
CONVINCING EVIDENCE SHOWING THE ELEMENTS OF SELF-DEFENSE.

II

WHETHER OR NOT THE COURT OF APPEALS ERRED IN NOT CONSIDERING SELF-DEFENSE

AS A PRIVILEGED MITIGATING CIRCUMSTANCE, IN THE EVENT THAT THE APPRECIATION
OF A COMPLETE SELF-DEFENSE IS UNAVAILING.

III

WHETHER OR NOT THE COURT OF APPEALS ERRED IN APPRECIATING THE QUALIFYING

CIRCUMSTANCE OF TREACHERY IN THE KILLING OF FRANCISCO. 18

Ruling of the Court

The appeal is partly meritorious.

I.

There was no self-defense

The accused who pleads self-defense admits the authorship of the crime. The burden of proving
self-defense rests entirely on him, that he must then prove by clear and convincing evidence the
concurrence of the following elements of self-defense, namely: (1) unlawful aggression; (2)

reasonable necessity of the means employed to prevent or repel the unlawful aggression; and (3)
lack of sufficient provocation on the part of the person defending himself.  The most important of all
19

the elements is unlawful aggression,  which is the condition sine qua non for upholding self-defense
20

as a justifying circumstance. Unless the victim committed unlawful

aggression against the accused, self-defense, whether complete or incomplete, should not be
appreciated, for the two other essential elements of self-defense would have no factual and legal
bases without any unlawful aggression to prevent or repel.

Unlawful aggression as the condition sine qua non for upholding self-defense is aptly described in
People v. Nugas,  as follows:
21

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.

Dulin argues that the CA should have appreciated the justifying circumstance of self-defense in his
favor because all its elements had been present in the commission of the crime.

In rejecting Dulin’s argument, the CA observed that although Batulan had initiated the attack against
Dulin the unlawful aggression from Batulan effectively ceased once Dulin had wrested the weapon
from the latter. The CA thus found and held in its assailed decision:

Appellant testified that after the initial stabbing attack on him, he was able to take possession of the
weapon and ran towards the second level of the house of Vicente Danao, away from FRANCISCO.
At that point, the unlawful aggression against him effectively ceased. When

FRANCISCO and appellant again grappled for possession of the weapon, appellant now became
the armed protagonist, and FRANCISCO’s act of trying to wrest the weapon cannot be considered
as unlawful aggression. At that moment, appellant no longer faced any imminent or immediate
danger to his life and limb from FRANCISCO.
 xxxx

From the foregoing, it is evidently clear that FRANCISCO could no longer be considered as unlawful
aggressor. Appellant had nothing to repel. Therefore, appellant’s theory that he was merely
defending himself when he killed FRANCISCO is unavailing. A fortiori, there would be no

basis for the second requisite of self-defense. 22

We uphold the finding and holding of the CA. Batulan, albeit the initial aggressor against Dulin,
ceased to be the aggressor as soon as Dulin had dispossessed him of the weapon. Even if Batulan
still went after Dulin despite the latter going inside the house of Danao, where they again grappled
for control of the weapon, the grappling for the weapon did not amount to aggression from Batulan
for it was still Dulin who held control of the weapon at that point. Whatever Dulin did thereafter – like
stabbing Batulan with the weapon – constituted retaliation against Batulan. In this regard, retaliation
was not the same as self-defense. In retaliation, the aggression that the victim started already
ceased when the accused attacked him, but in self-defense, the aggression was still continuing
when the accused injured the aggressor.  As such, there was no unlawful aggression on the part of
23

Batulan to justify his fatal stabbing by Dulin.

Still, Dulin vigorously insists that the initial aggression employed by Batulan did not cease because
the latter followed him into Danao’s house with the singular purpose of ending his life; and that there
was no gap in the aggression initiated by Batulan. 24

The insistence is unwarranted. Dulin admitted having successfully disarmed Batulan and then
running away from him. With the aggression by Batulan having thereby ceased, he did not anymore
pose any imminent threat against Dulin. Hence, Batulan was not committing any aggression when
Dulin fatally stabbed him.

It is notable, too, that the results of the medico-legal examination indicating Batulan to have
sustained twelve stab wounds  confirmed the cessation of the attack by Batulan. The numerosity
25

and nature of the wounds inflicted by the accused reflected his determination to kill Batulan, and the
fact that he was not defending himself. 26

II.

Incomplete self-defense was not proved

Pursuant to Article 69 of the Revised Penal Code, the privileged mitigating circumstance of
incomplete self-defense reduces the penalty by one or two degrees than that prescribed by law. For
this purpose, the accused must prove the existence of the majority of the elements for self-defense,
but unlawful aggression, being an indispensable element, must be present. Either or both of the
other requisites may be absent, namely: reasonable necessity of the means employed to prevent or
repel it, or the lack of sufficient provocation on the part of the person defending himself.
27

Dulin posits that the totality of circumstances indicated that his acts constituted incomplete self-
defense, and must be appreciatedas a privileged mitigating circumstance. 28

Dulin’s position is untenable. Like in complete self-defense, Dulin should prove the elements of
incomplete self-defense by first credibly establishing that the victim had committed unlawful
aggression against him. With Batulan’s aggression having already ceased from the moment that
Dulin divested Batulan of the weapon, there would not be any incomplete self-defense. Moreover, as
borne out by his stabbing of Batulan several times, Dulin did not act in order to defend himself or to
repel any attack, but instead to inflict injury on Batulan.

III.

The RTC and CA erred in appreciating

the attendance of treachery

Murder is the unlawful killing of any person attended by any of the circumstances listed Article 248 of
the Revised Penal Code.  Treachery, which was alleged in the information, is one such qualifying
1âwphi1

circumstance.

There is treachery when the offender commits any of the crimes against persons, employing means
and methods or forms in the execution thereof which tend to directly and specially ensure its
execution, without risk to himself arising from the defense which the offended party might
make.  Two conditions must concur in order for treachery to be appreciated, namely: one, the
29

assailant employed means, methods or forms in the execution of the criminal act which give the
person attacked no opportunity to defend himself or to retaliate; and two, said means, methods or
forms of execution were deliberately or consciously adopted by the assailant.  Treachery, whenever
30

alleged in the information and competently and clearly proved, qualifies the killing and raises it to the
category of murder. 31

Based on the established facts, Dulinand Batulan grappled for control of the weapon Batulan had
initially wielded against Dulin, who divested Batulan of it and ran with it into the house of Danao, with
Batulan in immediate pursuit. They continued tograpple for the weapon inside the house of Danao,
and it was at that point when Dulin stabbed Batulan several times. Under the circumstances,
treachery should not be appreciated in the killing of Batulan because the stabbing by Dulin did not
take Batulan by surprise due to his having been sufficiently forewarned of Dulin’s impending
assault,  and being thus afforded the opportunity to defend himself, or to escape, or even to recover
32

control of the weapon from Dulin. The essence of treachery is that the attack comes without warning,
or is done in a swift, deliberate and unexpected manner, affording the hapless, unarmed and
unsuspecting victim no chance to resist or to escape, without the slightest provocation on the part of
the victim.  The mode of attack must not spring from the unexpected turn of events.
33

Consequently, Dulin should be liable only for homicide, the penalty for which is reclusion
temporal.  There being no aggravating or mitigating circumstances, the penalty is imposed in its
34

medium period (i.e., 14 years, eight months and one day to 17 years and four months). The
indeterminate sentence of Dulin is, therefore, eight years and one day of prision mayor, as the
minimum, to 14 years, eight months and one day of reclusion temporal, with full credit of his
preventive imprisonment, if any.

Anent the civil liability, the CA ordered the accused to pay to the heirs of Batulan ₱20,000.00 as
temperate damages and ₱50,000.00 as moral damages. We modify the awards, and grant to the
heirs of Batulan ₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages, and ₱25,000.00 as
temperate damages. Indeed, the current judicial policy sets the civil indemnity for death caused by a
crime at ₱50,000.00. In addition, the heirs of the victim are entitled to moral damages of ₱50,000.00.
The civil indemnity and moral damages are allowed even without allegation and proof, it being a
certainty that the victim’s heirs were entitled thereto as a matter of law. Temperate damages of
₱25,000.00 should further be granted to the heirs of the victim for they were presumed to have spent
for his interment. It would be unjust to deny them this amount for the reason that they were not able
to establish the actual expenditure for his interment with certainty.
35
In line with recent jurisprudence,  interest of 6% per annum shall be charged on all the items of the
36

civil liability fixed and imposed herein, computed from the date of the finality of this decision until the
items of the civil liability shall be fully paid.

WHEREFORE, the Court MODIFIES the judgment promulgated on August 26, 2005 by finding
ALFREDO DULIN YNARAG guilty beyond reasonable doubt of HOMICIDE, and SENTENCES him
to suffer the indeterminate sentence of EIGHT YEARS AND ONE DAY OF PRISION MAYOR, AS
THE MINIMUM, TO 14 YEARS, EIGHT MONTHS AND ONE DAY OF RECLUSION TEMPORAL,
with full credit of his preventive imprisonment; ORDERS him to pay to the heirs of Francisco Batulan
₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages, and ₱25,000.00 as temperate
damages, plus interest of 6% per annum on each item reckoned from the finality of this decision until
full payment; and DIRECTS him to pay the costs of suit.

SO ORDERED.

SECOND DIVISION

G.R. No. 216018, March 27, 2019

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, v. DON VEGA Y RAMIL,

ACCUSED-APPELLANT.

DECISION

CAGUIOA, J.:

Before the Court is an appeal filed under Section 13(c), Rule 124 of the Rules of Court
from the Decision1 dated May 12, 2014 of the Court of Appeals (CA), Fifth (5 th )
Division, in CA-G.R. CR-HC No. 05072, which affirmed the Decision 2 dated May 31,
2011 of the Regional Trial Court, Branch 42, Manila (RTC), in Criminal Case No. 09-
266191, finding herein accused-appellant Don Vega y Ramil (Don) guilty of the crime of
Murder under Article 248 of the Revised Penal Code (RPC).

The Facts

Don was charged with the crime of Murder under the following Information:

That on or about January 18, 2009, in the City of Manila, Philippines, the said accused,
with intent to kill, qualified with treachery and evident premeditation, did then and
there willfully, unlawfully and feloniously take [sic], attack, assault and use personal
violence upon the person of one MANUEL ISIP y PADILLA @ Antuling, by then and there
repeatedly stabbing the latter on different parts of his body with a bladed weapon,
thereby inflicting upon the said MANUEL ISIP y PADILLA @ Antuling mortal stab wounds
which were the direct and immediate cause of his death thereafter.
Contrary to law.3

Upon arraignment, Don pleaded not guilty.

Version of the Prosecution

The witnesses for the prosecution were SPO2 Edmundo Cabal, Jennifer S. Torres, Aldrin
R. Fernandez, Dr. Romeo T. Salen, and Maricel A. Calixto, whose versions of the
incident were summarized by the RTC and adopted by the CA and the Office of the
Solicitor General, viz.:

[O]n 18 January 2009 at about 11:30 in the evening, the victim, Manuel Padilla Isip,
was at Arellano Street, Malate, Manila because his friend, a certain Ogad Venus, was
celebrating his birthday. Among his drinking buddies was Aldrin Roldan Fernandez,
witness for the prosecution. They were around fifteen at that time including the
celebrator. While drinking, chatting, and listening to music, they spotted accused Don
Vega who was about four [arms'] length away sniffing rugby from a bottle. After a few
hours, Don Vega approached them and caused a disturbance. He smashed several
items. Victim Manuel Isip tried to pacify the accused saying, "pre, huwag naman dito,
kasi may nagkakasiyahan dito" but accused harshly replied, "huwag kang makialam
dito, baka ikaw ang samain." Victim Manuel Isip did not comment and merely turned
his back to avert a bigger trouble. While the victim's back was turned on him, accused
suddenly grabbed [the] victim from behind, wrapped his left arm around [the] victim's
neck and using his right hand, plunged a knife to his (Manuel's) chest. Victim Manuel
Isip was rushed to the Ospital ng Maynila but was declared "dead on arrival."

The victim (Manuel Isip) suffered six stab wounds and one abrasion on the body. The
cause of his death is [sic] the four stab wounds that penetrated the frontal cavities of
the chest.4

Version of the Defense

The defense offered the lone testimony of Don, which was recounted by the RTC in its
Decision, in this manner:

For its part, the defense presented accused himself, who painted an entirely different
picture of the incident. He claimed that on 18 January 2009, at about 11:00 o'clock in
the evening, [h]e was along Tuazon St., San Andres, Manila, drinking with victim
Manuel Isip and a certain "Fernandez," together with the birthday celebrator called
"Ogad." A certain "Jeffrey" and the father of the celebrator were also there. More than
fifteen joined the drinking spree. The mood was fine. He requested victim Manuel Isip
to play his theme song. The victim asked him to wait because there were many who
made similar request[s]. He reiterated his request to victim several times but he
ignored him. He then approached the victim, but the latter punched him. Upset, he
went back to his table and picked up a bladed weapon. Victim Manuel Isip suddenly
charged towards him, so he stabbed him. He thought the people will pacify him
(accused), but he was wrong. He then dashed to his house because people were
ganging up on him. He was apprehended inside his abode and he voluntarily
surrendered to those who arrested him. [The victim] was unarmed. It was unfortunate
because he did not have previous "bad blood" with [the] victim. He regrets what has
happened; it was unwilled.5

Ruling of the RTC

After trial on the merits, in its Decision 6 dated May 31, 2011, the RTC convicted Don of
the crime of Murder. The dispositive portion of said Decision reads:

WHEREFORE, the Court finds accused DON VEGA y RAMIL guilty beyond reasonable
doubt of the crime of MURDER. He is hereby sentenced to suffer the penalty
of Reclusion Perpetua. Accused is further ordered to pay Fifty Thousand Pesos
(Php50,000.00) as civil indemnity and [Php]50,000.00 as moral damages to the heirs
of Manuel Padilla Isip.

SO ORDERED.7

The RTC ruled that all the elements of Murder are present in the instant case. 8 It also
ruled that the defense was not able to establish all the elements of self-defense. 9 One
of the important elements of self-defense is that there be reasonable necessity of the
means employed to prevent or repel the unlawful aggression. 10 However, in this case,
there is none since Don used a bladed weapon to attack an unarmed victim. 11 More
importantly, there was no unlawful aggression. The act of Manuel Isip (Manuel)
charging towards Don cannot even be considered as unlawful aggression absent any
showing of any intention of the victim to harm the accused. 12 Thus, on this score, the
theory of self-defense, according to the RTC, falls flat on its face. 13 Further, considering
that Don claimed that there were 15 eyewitnesses to the crime, he failed to present any
witness to fortify his contention that he acted in self-defense. 14 Lastly, the RTC ruled
that treachery is present since Don grabbed Manuel from behind and suddenly attacked
the unarmed victim with a bladed weapon. 15

Aggrieved, Don appealed to the CA.

Ruling of the CA

On appeal, in its Decision16 dated May 12, 2014, the CA affirmed the conviction by the
RTC with modifications:

WHEREFORE, the instant appeal is DISMISSED. The Decision of the Regional Trial
Court of Manila, Branch 42 dated May 31, 2011 in Criminal Case No. 09-266191
is AFFIRMED WITH MODIFICATION in that accused-appellant Don Vega y Ramil is
ordered to pay the heirs of Manuel Padilla Isip the following: a) Php75,000.00 as civil
indemnity; b) Php75,000.00 as moral damages; c) Php14,000.00 as actual damages;
and d) Php30,000.00 as exemplary damages. Further, all monetary awards for
damages shall earn interest at the legal rate of 6% per annum from date of finality of
this Decision until full payment thereof.

SO ORDERED.17
The CA likewise held that the elements of self-defense are lacking. 18 Moreover, the CA
said that Don's flight from the place where the crime was committed, his non-reporting
of the crime to the police, and his failure to voluntarily surrender to the police after the
commission of the crime fully warranted the RTC's rejection of his claim of self-
defense.19 Lastly, the CA ruled that the killing of the victim was attended by treachery
qualifying the crime to Murder.20

Hence, this appeal.

Issues

Whether the CA erred in affirming Don's conviction for Murder.

The Court's Ruling

The appeal is partly meritorious.

It is settled that findings of fact of the trial courts are generally accorded great weight;
except when it appears on the record that the trial court may have overlooked,
misapprehended, or misapplied some significant facts or circumstances which if
considered, would have altered the result. 21 This is axiomatic in appeals in criminal
cases where the whole case is thrown open for review on issues of both fact and law,
and the court may even consider issues which were not raised by the parties as
errors.22 The appeal confers the appellate court full jurisdiction over the case and
renders such competent to examine records, revise the judgment appealed from,
increase the penalty, and cite the proper provision of the penal law. 23

After a careful review and scrutiny of the records, the Court affirms the conviction of
Don, but only for the crime of Homicide, instead of Murder, as the qualifying
circumstance of treachery was not proven in the killing of Manuel.

The accused failed to prove

self-defense

In questioning his conviction, Don argues that he should not be criminally liable for the
death of the victim because he only acted in self-defense. He avers that he was merely
requesting Manuel to play his theme song, but when he approached to follow-up on his
request, the victim suddenly punched him, which thus triggered him to stab the
victim.24

This argument deserves scant consideration.

An accused who pleads self-defense admits to the commission of the crime

charged.25 He has the burden to prove, by clear and convincing evidence, that the
killing was attended by the following circumstances: (1) unlawful aggression on the part
of the victim; (2) reasonable necessity of the means employed to prevent or repel such
aggression; and (3) lack of sufficient provocation on the part of the person resorting to
self-defense.26 Of these three, unlawful aggression is indispensable. Unlawful
aggression refers to "an actual physical assault, or at least a threat to inflict real
imminent injury, upon a person."27 Without unlawful aggression, the justifying
circumstance of self-defense has no leg to stand on and cannot be appreciated. 28

The Court agrees with the CA that Don failed to discharge his burden. All the requisites
of self-defense are wanting in this case:

First, there is no unlawful aggression on the part of the victim. For unlawful aggression
to be present, there must be real danger to life or personal safety. 29 Accordingly, the
accused must establish the concurrence of the 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.30 None of the elements of unlawful aggression was proven by the defense.
Aside from Don's self-serving statement that it was Manuel who punched and attacked
him, not one of the persons present at the incident corroborated his account. 31 Neither
did he present any medical record showing that he sustained any injuries as the result
of the attack by Manuel.32

Second, in the absence of unlawful aggression on the part of the victim, the second
requisite of self-defense could not have been present. Even assuming that there was
unlawful aggression, the means employed by Don in repelling the alleged attack by
Manuel was not reasonably necessary. Manuel was unarmed and had his back turned
while Don used a bladed weapon to "repel the attack" and stab Manuel
repeatedly.33 Thus, the CA was correct in ruling that the means employed by Don in
repelling the attack was unreasonable.

Lastly, the third requisite requires the person mounting a defense to be reasonably
blameless. He or she must not have antagonized or incited the attacker into launching
an assault.34 In this case, Don was not entirely blameless as the reason why Manuel
scolded him was because he was breaking things and making unnecessary
disturbance.35 It was also Don who suddenly rushed to the victim and stabbed the latter
several times in the chest.36 In addition, there was no sufficient provocation on the part
of Manuel. Based on the account of the witnesses of the prosecution, Manuel merely
implored Don to refrain from breaking things and making unnecessary disturbance. 37 In
fact, when Don uttered harsh words against Manuel, the latter did not make a comment
and instead turned his back from the former.38

Hence, the Court finds that Don failed to prove that he acted in self-defense.

Treachery was not established

by clear and convincing evidence

In the assailed Decision, the CA affirmed the RTC's finding that the qualifying
circumstance of treachery was present, thereby making Don liable for Murder instead of
Homicide. The CA held:

Applying the foregoing pronouncement, we find that alevosia is thus present in the case
at bar. From the statements of Fernandez and Calixto, accused-appellant wrapped his
arm around the neck of Manuel and stabbed the victim the moment he turned his back
from the accused-appellant. Evidently, the attack is so sudden and unexpected
preventing any chance from the victim to defend himself. In other words, accused-
appellant's position in attacking Manuel rendered the victim defenseless and unable to
retaliate. Moreso [sic], the fatality and quantity of the stab wounds forestalled any
possibility on the part of Manuel of resisting the attack. All told, the attack was
executed in a manner that tended to directly and specifically ensure the execution of
the offense.39

It is established that the qualifying circumstance of treachery must be proven by clear

and convincing evidence.40 Thus, for Don to be convicted of Murder, the prosecution
must not only establish that he killed Manuel; it must also be proven that the killing of
Manuel was attended by treachery.

There is treachery when the offender commits any of the crimes against persons,
employing means and methods or forms in the execution thereof which tend to directly
and specially ensure its execution, without risk to himself arising from the defense
which the offended party might make. 41 To qualify as an offense, the following
conditions must exist: (1) the assailant employed means, methods or forms in the
execution of the criminal act which give the person attacked no opportunity to defend
himself or to retaliate; and (2) said means, methods or forms of execution were
deliberately or consciously adopted by the assailant. 42 The essence of treachery is the
sudden and unexpected attack by an aggressor on the unsuspecting victim, depriving
the latter of any chance to defend himself and thereby ensuring its commission without
risk of himself.43

In order to appreciate treachery, both elements must be present. 44 It is not enough that
the attack was "sudden," "unexpected," and "without any warning or
provocation."45 There must also be a showing that the offender consciously and
deliberately adopted the particular means, methods and forms in the execution of the
crime which tended directly to insure such execution, without risk to himself.

In the case at bar, the following circumstances negate the presence of treachery:

First, the stabbing incident happened during a drinking spree in which Don was already
a part of. He did not deliberately seek the presence of Manuel as he was already in the
same vicinity as Manuel, joining the merriment when he stabbed the latter.

Second, in killing Manuel, Don merely picked up a bladed weapon from his table - there
was no mention in the records as to who owned the said weapon. In a similar case, the
Court held that treachery cannot be presumed merely from the fact that the attack was
sudden. The suddenness of an attack does not, of itself, suffice to support a finding
of alevosia, even if the purpose was to kill, so long as the decision was made all of a
sudden and the victim's helpless position was accidental. 46

Based on the first and second circumstances abovementioned, Don's decision to attack
Manuel was more of a sudden impulse on his part than a planned decision.

Lastly, as testified to by the witnesses of the prosecution, the incident happened during
a drinking spree where there were more or less 15 people, excluding Don and Manuel.
If Don wanted to make certain that no risk would come to him, he could have chosen
another time and place to stab Manuel. In another case, the Court held that when aid
was easily available to the victim, such as when the attendant circumstances show that
there were several eyewitnesses to the incident, no treachery could be appreciated
because if the accused indeed consciously adopted means to insure the facilitation of
the crime, he could have chosen another place or time. 47 Thus, the Court can
reasonably conclude that Don acted impetuously in suddenly stabbing Manuel.

Proper penalty and award of

damages

With the removal of the qualifying circumstance of treachery, the crime is therefore
Homicide and not Murder. The penalty for Homicide under Article 249 of the RPC
is reclusion temporal. In the absence of any modifying circumstance, the penalty shall
be imposed in its medium period. Applying the Indeterminate Sentence Law, the
penalty next lower in degree is prision mayor with a range of six (6) years and one (1)
day to twelve (12) years.

Thus, Don shall suffer the indeterminate penalty of eight (8) years and one (1) day
of prision mayor, as minimum, to fourteen (14) years, eight (8) months, and one (1)
day of reclusion temporal, as maximum.

Finally, in view of the Court's ruling in People v. Jugueta,48 the damages awarded in the
CA Decision are hereby modified to civil indemnity, moral damages, and temperate
damages of P50,000.00 each.

WHEREFORE, in view of the foregoing, the appeal is hereby PARTIALLY GRANTED.

The Court DECLARES accused-appellant Don Vega y Ramil GUILTY of HOMICIDE, for
which he is sentenced to suffer the indeterminate penalty of eight (8) years and one (1)
day of prision mayor, as minimum, to fourteen (14) years, eight (8) months, and one
(1) day of reclusion temporal, as maximum. He is further ordered to pay the heirs of
Manuel Isip y Padilla the amount of Fifty Thousand Pesos (P50,000.00) as civil
indemnity, Fifty Thousand Pesos (P50,000.00) as moral damages, and Fifty Thousand
Pesos (P50,000.00) as temperate damages. All monetary awards shall earn interest at
the legal rate of six percent (6%) per annum from the date of finality of this Decision
until fully paid.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

 
G.R. Nos. 103501-03 February 17, 1997

LUIS A. TABUENA, petitioner,
vs.
HONORABLE SANDIGANBAYAN, and THE PEOPLE OF THE PHILIPPINES, respondents.

G.R. No. 103507 February 17, 1997

ADOLFO M. PERALTA, petitioner,
vs.
HON. SANDIGANBAYAN (First Division), and THE PEOPLE OF THE PHILIPPINES,
represented by the OFFICE OF THE SPECIAL PROSECUTOR, respondents.

FRANCISCO, J.:

Through their separate petitions for review,  Luis A. Tabuena and Adolfo M. Peralta (Tabuena and
1

Peralta, for short) appeal the Sandiganbayan decision dated October 12, 1990,  as well as the
2

Resolution dated December 20. 1991  denying reconsideration, convicting them of malversation
3

under Article 217 of the Revised Penal Code. Tabuena and Peralta were found guilty beyond
reasonable doubt Of having malversed the total amount of P55 Million of the Manila International
Airport Authority (MIAA) funds during their incumbency as General Manager and Acting Finance
Services Manager, respectively, of MIAA, and were thus meted the following sentence:

(1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to suffer the
penalty of imprisonment of seventeen (17) years and one (1) day of reclusion
temporal as minimum to twenty (20) years of reclusion temporal as maximum, and to
pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount
malversed. He shall also reimburse the Manila International Airport Authority the sum
of TWENTY-FIVE MILLION PESOS (P25,000,000.00).

In addition, he shall suffer the penalty of perpetual special disqualification from public
office,

(2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to suffer the
penalty of imprisonment of seventeen (17) years and one (1) day of reclusion
temporal as minimum, and twenty (20) years of reclusion temporal as maximum, and
to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount
malversed. He shall also reimburse the Manila International Airport Authority the sum
of TWENTY-FIVE MILLION PESOS (P25,000,000.00).

In addition, he shall suffer the penalty of perpetual special disqualification from public

office.

(3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M. Peralta are
each sentenced to suffer the penalty of imprisonment of seventeen (17) years and
one (1) day of reclusion temporal as minimum and twenty (20) years of reclusion
temporal as maximum and for each of them to pay separately a fine of FIVE
MILLION PESOS (P5,000,000.00) the amount malversed. They shall also reimburse
jointly and severally the Manila International Airport Authority the sum of FIVE
MILLION PESOS (P5,000,000.00).
 In addition, they shall both suffer the penalty of perpetual special disqualification from
public office.

A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant General
Manager of MIAA, has remained at large.

There were three (3) criminal cases filed (nos. 11758, 11759 and 11760) since the total amount of
P55 Million was taken on three (3) separate dates of January, 1986. Tabuena appears as the
principal accused — he being charged in all three (3) cases. The amended informations in criminal
case nos. 11758, 11759 and 11760 respectively read:

That on or about the 16th day of January, 1986, and for sometime subsequent
thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable
Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being
then the General Manager and Assistant General Manager, respectively, of the
Manila International Airport Authority (MIAA), and accountable for public funds
belonging to the MIAA, they being the only ones authorized to make withdrawals
against the cash accounts of MIAA pursuant to its board resolutions, conspiring,
confederating and confabulating with each other, did then and there wilfully,
unlawfully, feloniously, and with intent to defraud the government, take and
misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00)
from MIAA funds by applying for the issuance of a manager's check for said amount
in the name of accused Luis A. Tabuena chargeable against MIAA's Savings
Account No. 274-500-354-3 in the PNB Extension Office at the Manila International
Airport in Pasay City, purportedly as partial payment to the Philippine National
Construction Corporation (PNCC), the mechanics of which said accused Tabuena
would personally take care of, when both accused well knew that there was no
outstanding obligation of MIAA in favor of PNCC, and after the issuance of the
above-mentioned manager's check, accused Luis A. Tabuena encashed the same
and thereafter both accused misappropriated and converted the proceeds thereof to
their personal use and benefit, to the damage and prejudice of the government in the
aforesaid amount.

CONTRARY TO LAW.

xxx xxx xxx

That on or about the 16th day of January, 1986, and for sometime subsequent
thereto, in the City of Pasay. Philippines and within the jurisdiction of this Honorable
Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being
then the General Manager and Assistant General Manager, respectively, of the
Manila International Airport Authority (MIAA), and accountable for public funds
belonging to the MIAA, they being the only ones authorized to make withdrawals
against the cash accounts of MIAA pursuant to its board resolutions, conspiring,
confederating and confabulating with each other, did then and there wilfully,
unlawfully, feloniously, and with intent to defraud the government, take and
misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00)
from MIAA funds by applying for the issuance of a manager.s check for said amount
in the name of accused Luis A. Tabuena chargeable against MIAA's Savings
Account No. 274-500-354-3 in the PNB Extension Office at the Manila International
Airport in Pasay City, purportedly as partial payment to the Philippine National
Construction Corporation (PNCC), the mechanics of which said accused Tabuena
 would personally take care of, when both accused well knew that there was no
outstanding obligation of MIAA in favor of PNCC, and after the issuance of the
above-mentioned manager's check, accused Luis A. Tabuena encashed the same
and thereafter both accused misappropriated and converted the proceeds thereof to
their personal use and benefit, to the damage and prejudice of the government in the
aforesaid amount.

CONTRARY TO LAW.

xxx xxx xxx

That on or about the 29th day of January, 1986, and for sometime subsequent
thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable
Court, accused Luis A. Tabuena and Adolfo M. Peralta, both public officers, being
then the General Manager and Acting Manager, Financial Services Department,
respectively, of the Manila International Airport Authority (MIAA), and accountable for
public funds belonging to the MIAA, they being the only ones authorized to make
withdrawals against the cash accounts of MIAA pursuant to its board resolutions,
conspiring, confederating and confabulating with each other, did then and there
wilfully, unlawfully, feloniously, and with intent to defraud the government, take and
misappropriate the amount of FIVE MILLION PESOS (P5,000,000.00) from MIAA
funds by applying for the issuance of a manager's check for said amount in the name
of accused Luis A. Tabuena chargeable against MIAA's Savings Account No. 274-
500- 354-3 in the PNB Extension Office at the Manila International Airport in Pasay
City, purportedly as partial payment to the Philippine National Construction
Corporation (PNCC), the mechanics of which said accused Tabuena would
personally take care of, when both accused well knew that there was no outstanding
obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned
manager's check, accused Luis A. Tabuena encashed the same and thereafter both
accused misappropriated and converted the proceeds thereof to their personal use
and benefit, to the damage and prejudice of the government in the aforesaid amount.

CONTRARY TO LAW.

Gathered from the documentary and testimonial evidence are the following essential antecedents:

Then President Marcos instructed Tabuena over the phone to pay directly to the president's office
and in cash what the MIAA owes the Philippine National Construction Corporation (PNCC), to which
Tabuena replied, "Yes, sir, I will do it." About a week later, Tabuena received from Mrs. Fe Roa-
Gimenez, then private secretary of Marcos, a Presidential Memorandum dated January 8, 1986
(hereinafter referred to as MARCOS Memorandum) reiterating in black and white such verbal
instruction, to wit:

Office of the President

of the Philippines
Malacanang

January 8, 1986

MEMO TO: The General Manager

Manila International Airport Authority
 You are hereby directed to pay immediately the Philippine National Construction
Corporation, thru this Office, the sum of FIFTY FIVE MILLION (P55,000,000.00)
PESOS in cash as partial payment of MIAA's account with said Company mentioned
in a Memorandum of Minister Roberto Ongpin to this Office dated January 7, 1985
and duly approved by this Office on February 4, 1985.

Your immediate compliance is appreciated.

(Sgd.) FERDINAND
MARCOS. 4

The January 7, 1985 memorandum of then Minister of Trade and Industry Roberto Ongpin
referred to in the MARCOS Memorandum, reads in full:

MEMORANDUM

For: The President

From: Minister Roberto V. Ongpin

Date: 7 January 1985

Subject: Approval of Supplemental Contracts and

Request for Partial Deferment of Repayment of
PNCC's Advances for MIA Development Project

May I request your approval of the attached recommendations of Minister Jesus S.

Hipolito for eight (8) supplemental contracts pertaining to the MIA Development
Project (MIADP) between the Bureau of Air Transport (BAT) and Philippine National
Construction Corporation (PNCC), formerly CDCP, as follows:

1. Supplemental Contract No. 12

Package Contract No. 2 P11,106,600.95

2. Supplemental Contract No. 13

5,758,961.52

3. Supplemental Contract No. 14

Package Contract No. 2 4,586,610.80

4. Supplemental Contract No. 15

1,699,862.69

5. Supplemental Contract No. 16

Package Contract No. 2 233,561.22

6. Supplemental Contract No. 17

Package Contract No. 2 8,821,731.08

7. Supplemental Contract No. 18

Package Contract No. 2 6,110,115.75
 8. Supplemental Contract No. 3
Package Contract No. II 16,617,655.49

(xerox copies only; original memo was submitted to the Office of the
President on May 28, 1984)

In this connection, please be informed that Philippine National Construction

Corporation (PNCC), formerly CDCP, has accomplishment billings on the MIA
Development Project aggregating P98.4 million, inclusive of accomplishments for the
aforecited contracts. In accordance with contract provisions, outstanding advances
totalling P93.9 million are to be deducted from said billings which will leave a net
amount due to PNCC of only P4.5 million.

At the same time, PNCC has potential escalation claims amounting to P99 million in
the following stages of approval/evaluation:

— Approved by Price Escalation Committee

(PEC) but pended for lack of funds P1.9 million

— Endorsed by project consultants and

currently being evaluated by PEC 30.7 million

— Submitted by PNCC directly to PEC

and currently under evaluation 66.5 million
——————
Total P99.1 million

There has been no funding allocation for any of the above escalation claims due to
budgetary constraints.

The MIA Project has been completed and operational as far back as 1982 and yet
residual amounts due to PNCC have not been paid, resulting in undue burden to
PNCC due to additional cost of money to service its obligations for this contract.

To allow PNCC to collect partially its billings, and in consideration of its pending
escalation billings, may we request for His Excellency's approval for a deferment of
the repayment of PNCC's advances to the extent of P30 million corresponding to
about 30% of P99.1 million in escalation claims of PNCC, of which P32.5 million has
been officially recognized by MIADP consultants but could not be paid due to lack of
funding.

Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing
MIA Project funds. This amount represents the excess of the gross billings of PNCC
of P98.4 million over the undeferred portion of the repayment of advances of P63.9
million.

(Sgd.)
ROBE
RTO V.
ONGPI
N
 Ministe
r5

In obedience to President Marcos' verbal instruction and memorandum, Tabuena, with the help of
Dabao and Peralta, caused the release of P55 Million of MIAA funds by means of three (3)
withdrawals.

The first withdrawal was made on January 10, 1986 for P25 Million, following a letter of even date
signed by Tabuena and Dabao requesting the PNB extension office at the MIAA — the depository
branch of MIAA funds, to issue a manager's check for said amount payable to Tabuena. The check
was encashed, however, at the PNB Villamor Branch. Dabao and the cashier of the PNB Villamor
branch counted the money after which, Tabuena took delivery thereof. The P25 Million in cash were
then placed in peerless boxes and duffle bags, loaded on a PNB armored car and delivered on the
same day to the office of Mrs. Gimenez located at Aguado Street fronting Malacanang. Mrs.
Gimenez did not issue any receipt for the money received

Similar circumstances surrounded the second withdrawal/encashment and delivery of another P25
Million, made on January 16, 1986.

The third and last withdrawal was made on January 31, 1986 for P5 Million. Peralta was Tabuena's
co-signatory to the letter- request for a manager's check for this amount. Peralta accompanied
Tabuena to the PNB Villamor branch as Tabuena requested him to do the counting of the P5 Million.
After the counting, the money was placed in two (2) peerless boxes which were loaded in the trunk
of Tabuena's car. Peralta did not go with Tabuena to deliver the money to Mrs. Gimenez' office at
Aguado Street. It was only upon delivery of the P5 Million that Mrs. Gimenez issued a receipt for all
the amounts she received from Tabuena. The receipt, dated January 30, 1986, reads:

Malacanang
Manila

January 30, 198

RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE

MILLION PESOS (P55,000,000.00) as of the following dates:

Jan. 10 — P 25,000,000.00
Jan. 16 — 25,000,000.00
Jan. 30 — 5,000,000.00

(Sgd.)
Fe Roa-
Gimene
z

The disbursement of the P55 Million was, as described by Tabuena and Peralta themselves, "out of
the ordinary" and "not based on the normal procedure". Not only were there no vouchers prepared to
support the disbursement, the P55 Million was paid in cold cash. Also, no PNCC receipt for the P55
Million was presented. Defense witness Francis Monera, then Senior Assistant Vice President and
Corporate Comptroller of PNCC, even affirmed in court that there were no payments made to PNCC
by MIAA for the months of January to June of 1986.
The position of the prosecution was that there were no outstanding obligations in favor of PNCC at
the time of the disbursement of the P55 Million. On the other hand, the defense of Tabuena and
Peralta, in short, was that they acted in good faith. Tabuena claimed that he was merely complying
with the MARCOS Memorandum which ordered him to forward immediately to the Office of the
President P55 Million in cash as partial payment of MIAA's obligations to PNCC, and that he
(Tabuena) was of the belief that MIAA indeed had liabilities to PNCC. Peralta for his part shared the
same belief and so he heeded the request of Tabuena, his superior, for him (Peralta) to help in the
release of P5 Million.

With the rejection by the Sandiganbayan of their claim of good faith which ultimately led to their
conviction, Tabuena and Peralta now set forth a total of ten (10) errors  committed by the
6

Sandiganbayan for this Court's consideration. It appears, however, that at the core of their plea that
we acquit them are the following:

1) the Sandiganbayan convicted them of a crime not charged in the amended informations, and

2) they acted in good faith.

Anent the first proposition, Tabuena and Peralta stress that they were being charged with intentional
malversation, as the amended informations commonly allege that:

. . . accused . . . conspiring, confederating and other, then and there wilfully,

unlawfully, feloniously, and with intent to defraud the government, take and
misappropriated the amount of . . . .

But it would appear that they were convicted of malversation by negligence. In this
connection, the Court's attention is directed to p. 17 of the December 20, 1991 Resolution
(denying Tabuena's and Peralta's motion for reconsideration) wherein the Sandiganbayan
said:

xxx xxx xxx

On the contrary, what the evidence shows is that accused Tabuena delivered the
P55 Million to people who were not entitled thereto, either as representatives of
MIAA or of the PNCC.

It proves that Tabuena had deliberately consented or permitted

through negligence or abandonment, some other person to take such public funds.
Having done so, Tabuena, by his own narration, has categorically demonstrated that
he is guilty of the misappropriation or malversation of P55 Million of public funds.
(Emphasis supplied.)

To support their theory that such variance is a reversible flaw, Tabuena and Peralta argue
that:

1) While malversation may be committed intentionally or by negligence, both modes cannot be

committed at the same time.

2) The Sandiganbayan was without jurisdiction to convict them of malversation of negligence where
the amended informations charged them with intentional malversation. 7
3) Their conviction of a crime different from that charged violated their constitutional right to be
informed of the accusation. 8

We do not agree with Tabuena and Peralta on this point. Illuminative and controlling is "Cabello v.
Sandiganbayan"   where the Court passed upon similar protestations raised by therein accused-
9

petitioner Cabello whose conviction for the same crime of malversation was affirmed, in this wise:

. . . even on the putative assumption that the evidence against petitioner yielded a
case of malversation by negligence but the information was for intentional
malversation, under the circumstances of this case his conviction under the first
mode of misappropriation would still be in order. Malversation is committed either
intentionally or by negligence. The dolo or the culpa present in the offense is only a
modality in the perpetration of the felony. Even if the mode charged differs from the
mode proved, the same offense of malversation is involved and conviction thereof is
proper. . . .

In Samson vs. Court of Appeals, et. al., we held that an accused charged with willful
or intentional falsification can validly be convicted of falsification through negligence,
thus:

While a criminal negligent act is not a simple modality of a willful crime, as we held
in Quizon vs. Justice of the Peace of Bacolor. G.R. No. L-6641, July 28, 1995, but a
distinct crime in our Penal Code, designated as a quasi offense in our Penal Code, it
may however be said that a conviction for the former can be had under an
information exclusively charging the commission of a willful offense, upon the theory
that the greater includes the lesser offense. This is the situation that obtains in the
present case. Appellant was charged with willful falsification but from the evidence
submitted by the parties, the Court of Appeals found that in effecting the falsification
which made possible the cashing of the checks in question, appellant did not act with
criminal intent but merely failed to take proper and adequate means to assure
himself of the identity of the real claimants as an ordinary prudent man would do. In
other words, the information alleges acts which charge willful falsification but which
turned out to be not willful but negligent. This is a case covered by the rule when
there is a variance between the allegation and proof, and is similar to some of the
cases decided by this Tribunal.

xxx xxx xxx

Moreover; Section 5, Rule 116, of the Rules of Court does not require that all the
essential elements of the offense charged in the information be proved, it being
sufficient that some of said essential elements or ingredients thereof be established
to constitute the crime proved. . . .

The fact that the information does not allege that the falsification was committed with
imprudence is of no moment for here this deficiency appears supplied by the
evidence submitted by appellant himself and the result has proven beneficial to him.
Certainly, having alleged that the falsification has been willful, it would be
incongruous to allege at the same time that it was committed with imprudence for a
charge of criminal intent is incompatible with the concept of negligence.

Subsequently, we ruled in People vs. Consigna, et. al., that the aforestated rationale

and arguments also apply to the felony of malversation, that is, that an accused
 charged with willful malversation, in an information containing allegations similar to
those involved in the present case, can be validly convicted of the same offense of
malversation through negligence where the evidence sustains the latter mode of
perpetrating the offense.

Going now to the defense of good faith, it is settled that this is a valid defense in a prosecution for
malversation for it would negate criminal intent on the part of the accused. Thus, in the two (2)
vintage, but significantmalversation cases of "US v. Catolico"   and "US v. Elvina,"   the Court
10 11

stressed that:

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 consequences as, in law, is equivalent to criminal intent. The maxim is actus non
facit reum, nisi mens sit rea — a crime is not committed if the mind of the person
performing the act complained of is innocent.

The rule was reiterated in "People v. Pacana,"   although this case involved falsification of
12

public documents and estafa:

Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus
non facit reum, nisi mens sit rea. There can be no crime when the criminal mind is
wanting.

American jurisprudence echoes the same principle. It adheres to the view that criminal intent
in embezzlement is not based on technical mistakes as to the legal effect of a transaction
honestly entered into, and there can be no embezzlement if the mind of the person doing the
act is innocent or if there is no wrongful purpose.  The accused may thus always introduce
13

evidence to show he acted in good faith and that he had no intention to convert.  And this, to
14

our mind, Tabuena and Peralta had meritoriously shown.

In so far as Tabuena is concerned, with the due presentation in evidence of the MARCOS
Memorandum we are swayed to give credit to his claim of having caused the disbursement of the
P55 Million solely by reason of such memorandum. From this premise flows the following reasons
and/or considerations that would buttress his innocence of the crime of malversation.

First. Tabuena had no other choice but to make the withdrawals, for that was what the MARCOS
Memorandum required him to do. He could not be faulted if he had to obey and strictly comply with
the presidential directive, and to argue otherwise is something easier said than done. Marcos was
undeniably Tabuena's superior — the former being then the President of the Republic who
unquestionably exercised control over government agencies such as the MIAA and PNCC.  In other 15

words, Marcos had a say in matters involving inter-government agency affairs and transactions,
such as for instance, directing payment of liability of one entity to another and the manner in which it
should be carried out. And as a recipient of such kind of a directive coming from the highest official
of the land no less, good faith should be read on Tabuena's compliance, without hesitation nor any
question, with the MARCOS Memorandum. Tabuena therefore is entitled to the justifying
circumstance of "Any person who acts in obedience to an order issued by a superior for some lawful
purpose."  The subordinate-superior relationship between Tabuena and Marcos is clear. And so too,
16

is the lawfulness of the order contained in the MARCOS Memorandum, as it has for its purpose
partial payment of the liability of one government agency (MIAA) to another (PNCC). However, the
unlawfulness of the MARCOS Memorandum was being argued, on the observation, for instance,
that the Ongpin Memo referred to in the presidential directive reveals a liability of only about P34.5
Million. The Sandiganbayan in this connection said:
Exhibits "2" and "2-a" (pages 1 and 2 of the memorandum of Min. Ongpin to the
President dated January 7, 1985) were mainly:

a.) for the approval of eight Supplemental Contracts; and

b.) a request for partial deferment of payment by PNCC for advances made for the
MIAA Development Project, while at the same time recognizing some of the PNCC's
escalation billings which would result in making payable to PNCC the amount of
P34.5 million out of existing MIAA Project funds.

Thus:

"xxx xxx xxx

To allow PNCC to collect partially its billings, and in consideration of

ifs pending escalation billings, may we request for His Excellency's
approval for a deferment of repayment of PNCC's advances to the
extent of P30 million corresponding to about 30% of P99.1 million in
escalation claims of PNCC, of which P32.6 million has been officially
recognized by MIADP consultants but could not be paid due to lack of
funding.

Our proposal will allow BAT to pay PNCC the amount of P34.5 million
out of existing MIA Project funds. This amount represents the excess
of the gross billings of PNCC of P98.4 million over the undeferred
portion of the repayment of advances of P63.9 million."

While Min. Ongpin may have, therefore recognized the escalation claims of the
PNCC to MIAA to the extent of P99.1 million (Exhibit 2a), a substantial portion
thereof was still in the stages of evaluation and approval, with only P32.6 million
having been officially recognized by the MIADP consultants.

If any payments were, therefore, due under this memo for Min. Ongpin (upon which
President Marcos' Memo was based) they would only be for a sum of up to P34.5
million. 
17

xxx xxx xxx

V. Pres. Marcos' order to Tabuena dated January 8, 1986 baseless.

Not only was Pres. Marcos' Memo (Exhibit "1") for Tabuena to pay
P55 million irrelevant, but it was actually baseless.

This is easy to see.

Exhibit "1" purports to refer itself to the Ongpin Memorandum (Exhibit

"2", "2-a"); Exhibit "1", however, speaks of P55 million to be paid to
the PNCC while Exhibit "2" authorized only P34.5 million. The order
to withdraw the amount of P55 million exceeded the approved
payment of P34.5 million by P20.5 million. Min. Ongpin's Memo of
 January 7, 1985 could not therefore serve as a basis for the
President's order to withdraw P55 million.  18

Granting this to be true, it will not nevertheless affect Tabuena's goad faith so as to make
him criminally liable. What is more significant to consider is that the MARCOS Memorandum
is patently legal (for on its face it directs payment of an outstanding liability) and that
Tabuena acted under the honest belief that the P55 million was a due and demandable debt
and that it was just a portion of a bigger liability to PNCC. This belief is supported by defense
witness Francis Monera who, on direct examination, testified that:

ATTY ANDRES

Q Can you please show us in this Exhibit "7" and "7-a" where it is
indicated the receivables from MIA as of December 31, 1985?

A As of December 31, 1985, the receivables from MIA is shown on

page 2, marked as Exhibit "7-a", sir, P102,475.392.35

xxx xxx xxx  19

ATTY. ANDRES

Q Can you tell us, Mr. Witness, what these obligations represent?

WITNESS

A These obligations represent receivables on the basis of our billings

to MIA as contract-owner of the project that the Philippine National
Construction Corporation constructed. These are billings for
escalation mostly, sir.

Q What do you mean by escalation?

A Escalation is the component of our revenue billings to the contract-

owner that are supposed to take care of price increases, sir.

xxx xxx xxx  20

ATTY ANDRES

Q When you said these are accounts receivable, do I understand

from you that these are due and demandable?

A Yes, sir. 21

Thus, even if the order is illegal if it is patently legal and the subordinate is not aware of its
illegality, the subordinate is not liable, for then there would only be a mistake of fact
committed in good faith.  Such is the ruling in "Nassif v. People"  the facts of which, in brief,
22 23

are as follows:
 Accused was charged with falsification of commercial document. A mere employee
of R.J. Campos, he inserted in the commercial document alleged to have been
falsified the word "sold" by order of his principal. Had he known or suspected that his
principal was committing an improper act of falsification, he would be liable either as
a co-principal or as an accomplice. However, there being no malice on his part, he
was exempted from criminal liability as he was a mere employee following the orders
of his principal. 
24

Second. There is no denying that the disbursement, which Tabuena admitted as "out of the
ordinary", did not comply with certain auditing rules and regulations such as those pointed out by the
Sandiganbayan, to wit:

a) [except for salaries and wages and for commutation of leaves] all disbursements above P1,000.00
should be made by check (Basic Guidelines for Internal Control dated January 31, 1977 issued by
COA)

b) payment of all claims against the government had to be supported with complete documentation
(Sec. 4, P.D. 1445, "State Auditing Code of the Philippines). In this connection, the Sandiganbayan
observed that:

There were no vouchers to authorize the disbursements in question. There were no

bills to support the disbursement. There were no certifications as to the availability of
funds for an unquestionably staggering sum of P55 Million.  25

c) failure to protest (Sec. 106, P.D. 1445)

But this deviation was inevitable under the circumstances Tabuena was in. He did not have
the luxury of time to observe all auditing procedures of disbursement considering the fact
that the MARCOS Memorandum enjoined his "immediate compliance" with the directive that
he forward to the President's Office the P55 Million in cash. Be that as it may, Tabuena
surely cannot escape responsibility for such omission. But since he was acting in good faith,
his liability should only be administrative or civil in nature, and not criminal. This follows the
decision in "Villacorta v. People"  where the Court, in acquitting therein accused municipal
26

treasurer of Pandan, Catanduanes of malversation after finding that he incurred a shortage

in his cash accountability by reason of his payment in good faith to certain government
personnel of their legitimate wages leave allowances, etc., held that:

Nor can negligence approximating malice or fraud be attributed to petitioner. If he

made wrong payments, they were in Good faith mainly to government personnel,
some of them working at the provincial auditor's and the provincial treasurer's offices
And if those payments ran counter to auditing rules and regulations, they did not
amount to a criminal offense and he should only be held administratively or civilly
liable.

Likewise controlling is "US v. Elvina"   where it was held that payments in good faith do not
27

amount to criminal appropriation, although they were made with insufficient vouchers or
improper evidence. In fact, the Dissenting Opinion's reference to certain provisions in the
revised Manual on Certificate of Settlement and Balances — apparently made to underscore
Tabuena's personal accountability, as agency head, for MIAA funds — would all the more
support the view that Tabuena is vulnerable to civil sanctions only Sections 29.2 and 295
expressly and solely speak of "civilly liable," describe the kind of sanction imposable on a
superior officer who performs his duties with "bad faith, malice or gross negligence"' and on
 a subordinate officer or employee who commits "willful or negligent acts . . . which are
contrary to law, morals, public policy and good customs even if he acted under order or
instructions of his superiors."

Third. The Sandiganbayan made the finding that Tabuena had already converted and
misappropriated the P55 Million when he delivered the same to Mrs. Gimenez and not to the PNCC,
proceeding from the following definitions/concepts of "conversion":

"Conversion", as necessary element of offense of embezzlement, being the

fraudulent "appropriation to one's own use' of another's property which does not
necessarily mean to one's personal advantage but every attempt by one person to
dispose of the goods of another without right as if they were his own is conversion to
his own use." (Terry v. Water Improvement Dist. No. 5 of Tulsa County, 64 p, 2d 904,
906, 179 Okl. 106)

— At p. 207, Words
and Phrases,
Permanent Edition 9A.

Conversion is any interference subversive of the right of the owner of personal

property to enjoy and control it. The gist of conversion is the usurpation of the owner
's right of property, and not the actual damages inflicted. Honesty of purpose is not a
defense. (Ferrera v. Parks, 23 p. 883, 885 19 Or. 141)

— At
page
168, id.

xxx xxx xxx

The words "convert" and "misappropriate" connote an act of using or disposing of

another's property as if it were one's own. They presuppose that the thing has been
devoted to a purpose or use different from that agreed upon. To appropriate to one's
own use includes not only conversion to one's personal advantage but every attempt
to dispose of the property of another without right.

— People vs. Webber,

57 O.G.
p. 2933, 2937

By placing them at the disposal of private persons without due authorization or legal
justification, he became as guilty of malversation as if he had personally taken them
and converted them to his own use.

— People vs. Luntao,

50 O.G.
p. 1182, 1183  28

We do not agree. It must be stressed that the MARCOS Memorandum directed Tabuena "to
pay immediately the Philippine National Construction Corporation, thru this office the sum of
FIFTY FIVE MILLION. . .", and that was what Tabuena precisely did when he delivered the
 money to Mrs. Gimenez. Such delivery, no doubt, is in effect delivery to the Office of the
President inasmuch as Mrs. Gimenez was Marcos' secretary then. Furthermore, Tabuena
had reasonable ground to believe that the President was entitled to receive the P55 Million
since he was certainly aware that Marcos, as Chief Executive, exercised supervision and
control over government agencies. And the good faith of Tabuena in having delivered the
money to the President's office (thru Mrs. Gimenez), in strict compliance with the MARCOS
Memorandum, was not at all affected even if it later turned out that PNCC never received the
money. Thus, it has been said that:

Good faith in the payment of public funds relieves a public officer from the crime of
malversation.

xxx xxx xxx

Not every unauthorized payment of public funds is malversation. There is

malversation only if the public officer who has custody of public funds should
appropriate the same, or shall take or misappropriate or shall consent, or through
abandonment or negligence shall permit any other person to take such public funds.
Where the payment of public funds has been made in good faith, and there is
reasonable ground to believe that the public officer to whom the fund had been paid
was entitled thereto, he is deemed to have acted in good faith, there is no criminal
intent, and the payment, if it turns out that it is unauthorized, renders him only civilly
but not criminally liable.
29

Fourth. Even assuming that the real and sole purpose behind the MARCOS Memorandum was to
siphon-out public money for the personal benefit of those then in power, still, no criminal liability can
be imputed to Tabuena. There is no showing that Tabuena had anything to do whatsoever with the
execution of the MARCOS Memorandum. Nor is there proof that he profited from the felonious
scheme. In short, no conspiracy was established between Tabuena and the real embezzler/s of the
P5 Million. In the cases of "US v. Acebedo"  and "Ang v. Sandiganbayan",  both also involving the
30 31

crime of malversation, the accused therein were acquitted after the Court arrived at a similar finding
of non-proof of conspiracy. In "Acebedo", therein accused, as municipal president of Palo, Leyte,
was prosecuted for and found guilty by the lower court of malversation after being unable to turn
over certain amounts to the then justice of the peace. It appeared, however, that said amounts were
actually collected by his secretary Crisanto Urbina. The Court reversed Acebedo's conviction after
finding that the sums were converted by his secretary Urbina without the knowledge and
participation of Acebedo. The Court said, which we herein adopt:

No conspiracy between the appellant and his secretary has been shown in this case,
nor did such conspiracy appear in the case against Urbina. No guilty knowledge of
the theft committed by the secretary was shown on the part of the appellant in this
case, nor does it appear that he in any way participated in the fruits of the crime. If
the secretary stole the money in question without the knowledge or consent of the
appellant and without negligence on his part, then certainly the latter can not be
convicted of embezzling the same money or any part thereof. 32

In "Ang", accused-petitioner, as MWSS bill collector, allowed part of his collection to be

converted into checks drawn in the name of one Marshall Lu, a non-customer of MWSS, but
the checks were subsequently dishonored. Ang was acquitted by this Court after giving
credence to his assertion that the conversion of his collections into checks were thru the
machinations of one Lazaro Guinto, another MWSS collector more senior to him. And we
also adopt the Court's observation therein, that:
 The petitioner's alleged negligence in allowing the senior collector to convert cash
collections into checks may be proof of poor judgment or too trusting a nature insofar
as a superior officer is concerned but there must be stronger evidence to show fraud,
malice, or other indicia of deliberateness in the conspiracy cooked up with Marshall
Lu. The prosecution failed to show that the petitioner was privy to the conspirational
scheme. Much less is there any proof that he profited from the questioned acts. Any
suspicions of conspiracy, no matter how sincerely and strongly felt by the MWSS,
must be converted into evidence before conviction beyond reasonable doubt may be
imposed.  33

The principles underlying all that has been said above in exculpation of Tabuena equally
apply to Peralta in relation to the P5 Million for which he is being held accountable, i.e., he
acted in good faith when he, upon the directive of Tabuena, helped facilitate the withdrawal
of P5 Million of the P55 Million of the MIAA funds.

This is not a sheer case of blind and misguided obedience, but obedience in good faith of a duly
executed order. Indeed, compliance to a patently lawful order is rectitude far better than
contumacious disobedience. In the case at bench, the order emanated from the Office of the
President and bears the signature of the President himself, the highest official of the land. It carries
with it the presumption that it was regularly issued. And on its face, the memorandum is patently
lawful for no law makes the payment of an obligation illegal. This fact, coupled with the urgent tenor
for its execution constrains one to act swiftly without question. Obedientia est legis essentia.
Besides, the case could not be detached from the realities then prevailing As aptly observed by Mr
Justice Cruz in his dissenting opinion:

We reject history in arbitrarily assuming that the people were free during the era and
that the Judiciary was independent and fearless. We know it was not: even the
Supreme Court at that time was not free. This is an undeniable fact that we can not
just blink away. Insisting on the contrary would only make our sincerity suspect and
even provoke scorn for what can only be described as our incredible credulity.  34

But what appears to be a more compelling reason for their acquittal is the violation of the accused's
basic constitutional right to due process. "Respect for the Constitution", to borrow once again Mr.
Justice Cruz's words, "is more important than securing a conviction based on a violation of the rights
of the accused."  While going over the records, we were struck by the way the Sandiganbayan
35

actively took part in the questioning of a defense witness and of the accused themselves. Tabuena
and Peralta may not have raised this as an error, there is nevertheless no impediment for us to
consider such matter as additional basis for a reversal since the settled doctrine is that an appeal
throws the whole case open to review, and it becomes the duty of the appellate court to correct such
errors as may be found in the judgment appealed from whether they are made the subject of
assignments of error or not.  36

Simply consider the volume of questions hurled by the Sandiganbayan. At the taking of the
testimony of Francis Monera. then Senior Assistant Vice President and Corporate Comptroller of
PNCC, Atty. Andres asked sixteen (16) questions on direct examination. Prosecutor Viernes only
asked six (6) questions on cross-examination in the course of which the court interjected a total
of twenty-seven (27) questions (more than four times Prosecutor Viernes' questions and even more
than the combined total of direct and cross-examination questions asked by the counsels) After the
defense opted not to conduct any re-direct examination, the court further asked a total of ten (10)
questions.  The trend intensified during Tabuena's turn on the witness stand. Questions from the
37

court after Tabuena's cross-examination totalled sixty-seven (67).   This is more than five times
38

Prosecutor Viernes' questions on cross-examination (14), and more than double the total of direct
examination and cross-examination questions which is thirty-one (31) [17 direct examination
questions by Atty. Andres plus 14 cross-examination questions by Prosecutor Viernes]. In Peralta's
case, the Justices, after his cross-examination, propounded a total of forty-one (41) questions. 
39

But more importantly, we note that the questions of the court were in the nature of cross
examinations characteristic of confrontation, probing and insinuation.   (The insinuating type was
40

best exemplified in one question addressed to Peralta, which will be underscored.) Thus we beg to
quote in length from the transcripts pertaining to witness Monera, Tabuena and Peralta. (Questions
from the Court are marked with asterisks and italicized for emphasis.)

(MONERA)

(As a background, what was elicited from his direct examination is that the PNCC had receivables
from MIAA totalling P102,475,392.35, and although such receivables were largely billings for
escalation, they were nonetheless all due and demandable. What follows are the cross-examination
of Prosecutor Viernes and the court questions).

CROSS-EXAMINATION BY PROS. VIERNES

Q You admit that as shown by these Exhibits "7" and "7- a", the items
here represent mostly escalation billings. Were those escalation
billings properly transmitted to MIA authorities?

A I don't have the documents right now to show that they were
transmitted, but I have a letter by our President, Mr. Olaguer, dated
July 6, 1988, following up for payment of the balance of our
receivables from MIA, sir.

*AJ AMORES

*Q This matter of escalation costs, is it not a matter for a conference

between the MIA and the PNCC for the determination as to the
correct amount?

A I agree, your Honor. As far as we are concerned, our billings are

what we deemed are valid receivables And, in fact, we have been
following up for payment.

*Q This determination of the escalation costs was it accepted as the

correct figure by MIA ?

A I don't have any document as to the acceptance by MIA your

Honor, but our company was able to get a document or a letter by
Minister Ongpin to President Marcos, dated January 7, 1985, with a
marginal note or approval by former President Marcos.

*PJ GARCHITORENA

*Q Basically, the letter of Mr. Ongpin is to what effect?

A The subject matter is approval of the supplementary contract and
request for partial deferment of payment for MIA Development
Project, your Honor.

*Q It has nothing to do with the implementation of the escalation

costs?

A The details show that most of the accounts refer to our escalations,
your Honor.

*Q Does that indicate the computation for escalations were already

billed or you do not have any proof of that

A Our subsidiary ledger was based on billings to MIA and this letter of
Minister Ongpin appears to have confirmed our billings to MIA, your
Honor.

*AJ AMORES

*Q Were there partial payments made by MIA an these escalation

billings?

A Based on records available as of today, the P102 million was

reduced to about P56.7 million, if my recollection is correct, your
Honor.

*PJ GARCHITORENA

*Q Were the payments made before or after February 1986, since Mr.
Olaguer is a new entrant to your company?

WITNESS

A The payments were made after December 31, 1985 but I think the
payments were made before the entry of our President, your Honor.
Actually, the payment was in the form of: assignments to State
Investment of about P23 million; and then there was P17.8 million
application against advances made or formerly given; and there were
payments to PNCC of about P2.6 million and there was a payment for
application on withholding and contractual stock of about P1 million;
that summed up to P44.4 million all in all. And you deduct that from
the P102 million, the remaining balance would be about P57 million.

*PJ GARCHITORENA

*Q What you are saying is that, for all the payments made on this
P102 million, only P2 million had been payments in cash ?

A Yes, your Honor.

*Q The rest had been adjustments of accounts, assignments of
accounts, or offsetting of accounts?

A Yes, your Honor.

*Q This is as of December 31, 1985?

A The P102 million was as of December 31, 1985, your Honor, but
the balances is as of August 1987.

*Q We are talking now about the P44 million, more or less, by which
the basic account has been reduced. These reductions, whether by
adjustment or assignment or actual delivery of cash, were made after
December 31, 1985?

WITNESS

A Yes, your Honor.

*Q And your records indicate when these adjustments and payments

were made?

A Yes, your Honor.

*AJ AMORES

*Q You said there were partial payments before of these escalation

billings. Do we get it from you that there was an admission of these
escalation costs as computed by you by MIA, since there was already
partial payments?

A Yes, your Honor.

*Q How were these payments made before February 1986, in case or

check, if there were payments made?

A The P44 million payments was in the form of assignments, your

Honor.

*PJ GARCHITORENA

*Q The question of the Court is, before December 31, 1985, were
there any liquidations made by MIA against these escalation billings?

A I have not reviewed the details of the record, your Honor. But the
ledger card indicates that there were collections on page 2 of the
Exhibit earlier presented. It will indicate that there were collections
shown by credits indicated on the credit side of the ledger.

*AJ AMORES
*Q Your ledger does not indicate the manner of giving credit to the
MIA with respect to the escalation billings. Was the payment in cash
or just credit of some sort before December 31, 1985?

A Before December 31, 1985, the reference of the ledger are official
receipts and I suppose these were payments in cash, your Honor.

*Q Do you know how the manner of this payment in cash was made
by MIA?

A I do not know, your Honor.

*PJ GARCHITORENA

*Q But your records will indicate that?

A The records will indicate that, your Honor.

*Q Except that you were not asked to bring them?

A Yes, your Honor.

*Q At all events, we are talking of settlement or partial liquidation prior

to December 31, 1985?

A Yes, your Honor.

*PJ GARCHITORENA

*Q Subsequent thereto, we are talking merely of about P44 million?

A Yes, your Honor, as subsequent settlements.

*Q After December 31, 1985?

A Yes, your Honor.

*Q And they have liquidated that, as you described it, by way of

assignments, adjustments, by offsets and by P2 million of cash
payment?

A Yes, your Honor.

*AJ AMORES

*Q Your standard operating procedure before December 31, 1985 in

connection with or in case of cash payment, was the payment in cash
or check?

A I would venture to say it was by check, your Honor.

 *Q Which is the safest way to do it?

A Yes, your Honor.

"PJ GARCHITORENA

*Q And the business way?

A Yes, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Q You mentioned earlier about the letter of former Minister Ongpin to

the former President Marcos, did you say that letter concurs with the
escalation billings reflected in Exhibits "7" and "7-a"?

WITNESS

A The Company or the management is of the opinion that this letter, a

copy of which we were able to get, is a confirmation of the
acceptance of our billings, sir.

Q This letter of Minister Ongpin is dated January 7, 1985, whereas

the entries of escalation billings as appearing in Exhibit "7" are dated
June 30, 1985, would you still insist that the letter of January 1985
confirms the escalation billings as of June 1985?

A The entries started June 30 in the ledger card. And as of December

31, 1985, it stood at P102 million after payments were made as
shown on the credit side of the ledger. I suppose hat the earlier
amount, before the payment was made, was bigger and therefore I
would venture to say that the letter of January 7, 1985 contains an
amount that is part of the original contract account. What are
indicated in the ledger are escalation billings.

*PJ GARCHITORENA

*Q We are talking about the letter of Minister Ongpin?

A The letter of Minister Ongpin refers to escalation billings, sir.

*Q As of what date?

A The letter is dated January 7, 1985, your Honor.

PJ GARCHITORENA
Continue.

PROS. VIERNES

Q In accordance with this letter marked Exhibit "7" and "7-a", there
were credits made in favor of MIA in July and November until
December 1985. These were properly credited to the account of
MIA?

WITNESS

A Yes, sir.

Q In 1986. from your records as appearing in Exhibit "7-a", there

were no payments made to PNCC by MIA for the months of January
to June 1986?

A Yes, sir.

Q And neither was the amount of P22 million remitted to PNCC by

MIA?

A Yes, sir.

PROS VIERNES

That will be all, your Honor.

PJ GARCHITORENA

Redirect?

ATTY ANDRES

No redirect, your Honor.

*PJ GARCHITORENA

Questions from the Court.

*AJ AMORES

*Q From your records, for the month of January 1986, there was no
payment of this escalation account by MIA?

WITNESS

A Yes, your Honor. But on page 2 of Exhibit "7" there appears an

assignment of P23 million, that was on September 25, 1986.
*Q But that is already under the present administration?

A After February 1986, your Honor.

*Q But before February, in January 1986, there was no payment

whatsoever by MIA to PNCC?

A Per record there is none appearing, your Honor.

*PJ GARCHITORENA

*Q The earliest payment, whether by delivery of cash equivalent or of

adjustment of account, or by assignment, or by offsets, when did these payments begin?

A Per ledger card, there were payments in 1985, prior to December

31, 1985, your Honor.

*Q After December 31, 1985?

A There appears also P23 million as credit, that is a form of

settlement, your Honor.

*Q This is as of September 25?

A Yes, your Honor. There were subsequent settlements P23 million is

just part of the P44 million.

*Q And what you are saying is that, PNCC passed the account to
State Investment. In other words, State Investment bought the credit
of MIA?

A Yes, your Honor.

*Q And the amount of credit or receivables sold by PNCC to State

Investment is P23 million?

A Yes, your Honor.

*Q Is there a payback agreement?

A I have a copy of the assignment to State Investment but I have not

yet reviewed the same, your Honor.

*AJ AMORES

*Q As of now, is this obligation of MIA, now NAIA, paid to PNCC?

A There is still a balance of receivables from MIA as evidenced by a

collection letter by our President dated July 6, 1988, your Honor. The
amount indicated in the letter is P55 million.
 PJ GARCHITORENA

Any clarifications you would like to make Mr. Estebal?

ATTY ESTEBAL

None, your Honor.

PJ GARCHITORENA

Mr. Viernes?

PROS VIERNES

No more, your Honor.

PJ GARCHITORENA

The witness is excused. Thank you very much Mr. Monera. . . . 41

(TABUENA)

(In his direct examination, he testified that he caused the preparation of the checks totalling P55
Million pursuant to the MARCOS Memorandum and that he thereafter delivered said amount in cash
on the three (3) dates as alleged in the information to Marcos' private secretary Mrs. Jimenez at her
office at Aguado Street, who thereafter issued a receipt. Tabuena also denied having used the
money for his own personal use.)

CROSS-EXAMINATION BY PROS. VIERNES

Q The amount of P55 million as covered by the three (3) checks Mr.
Tabuena, were delivered on how many occasions?

A Three times, sir.

Q And so, on the first two deliveries, you did not ask for a receipt from
Mrs. Gimenez?

A Yes, sir.

Q It was only on January 30, 1986 that this receipt Exhibit "3" was
issued by Mrs. Gimenez?

A Yes, sir.

*PJ GARCHITORENA

*Q So January 30 is the date of the last delivery?

A I remember it was on the 31st of January, your Honor What
happened is that, I did not notice the date placed by Mrs. Gimenez.

Q Are you telling us that this Exhibit "3" was incorrectly dated

A Yes, your Honor.

*Q Because the third delivery was on January 31st and yet the
receipt was dated January 30?

A Yes, your Honor.

*Q When was Exhibit "3" delivered actually by Mrs. Gimenez?

A January 31st, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Q You did not go to Malacañang on January 30, 1986?

A Yes, sir, I did not.

Q Do you know at whose instance this Exhibit "3" was prepared?

A I asked for it, sir.

Q You asked for it on January 31, 1986 when you made the last
delivery?

A Yes, sir.

Q Did you see this Exhibit "3" prepared in the Office of Mrs.
Gimenez?

A Yes, sir.

Q This receipt was typewritten in Malacañang stationery. Did you see

who typed this receipt?

A No, sir. What happened is that, she went to her room and when she
came out she gave me that receipt.

*PJ GARCHITORENA

Q What you are saying is, you do not know who typed that receipt?
WITNESS

A Yes, your Honor.

*Q Are you making an assumption that she typed that receipt?

A Yes, your Honor, because she knows how to type.

*Q Your assumption is that she typed it herself?

A Yes, your Honor.

PJ GARCHITORENA

Proceed.

PROS. VIERNES

Q This receipt was prepared on January 31, although it is dated

January 30?

A Yes, sir, because I was there on January 31st.

Q In what particular place did Mrs. Gimenez sign this Exhibit "3"?

A In her office at Aguado, sir.

Q Did you actually see Mrs. Gimenez signing this receipt Exhibit "3"?

A No, sir, I did not. She was inside her room.

Q So, she was in her room and when she came out of the room, she
handed this receipt to you already typed and signed?

A Yes, sir.

*AJ HERMOSISIMA

*Q So, how did you know this was the signature of Mrs. Gimenez?

WITNESS

A Because I know her signature, your Honor. I have been receiving

letters from her also and when she requests for something from me.
Her writing is familiar to me.

So, when the Presiding Justice asked you as to how you knew that
this was the signature of Mrs. Gimenez and you answered that you
saw Mrs. Gimenez signed it, you were not exactly truthful?
A What I mean is, I did not see her sign because she went to her
room and when she came out, she gave me that receipt, your Honor.

PJ GARCHITORENA

That is why you have to wait for the question to be finished and listen
to it carefully. Because when I asked you, you said you saw her
signed it. Be careful Mr. Tabuena.

WITNESS

Yes, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Was there another person inside the office of Mrs. Gimenez when
she gave you this receipt Exhibit "3"?

A Nobody, sir.

Q I noticed in this receipt that the last delivery of the sum of P55
million was made on January 30. Do we understand from you that
this date January 30 is erroneous?

A Yes, sir, that January 30 is erroneous. I noticed it only afterwards.

This should be January 31st, sir.

PROS VIERNES

That will be all, your Honor.

PJ GARCHITORENA

Redirect?

ATTY. ANDRES

No redirect, your Honor.

*PJ GARCHITORENA

Questions from the Court.

*AJ HERMOSISIMA
*Q Why did you not ask for a receipt on the first and second
deliveries?

A Because I know that the delivery was not complete yet, your Honor.

*PJ GARCHITORENA

*Q So you know that the total amount to be delivered was P55

million')

A Yes, your Honor.

PJ GARCHITORENA

Response by Mr. Peralta to the testimony of Mr. Tabuena.

ATTY. ESTEBAL

We are adopting the testimony of Mr. Tabuena and we will also

present the accused, your Honor.

*AJ DEL ROSARIO

"Q From whom did you receive the President's memorandum marked
Exhibit "1"? Or more precisely, who handed you this memorandum?

A Mrs. Fe Roa Gimenez, your Honor.

Q Did you ask Mrs, Fe Gimenez for what purpose the money was
being asked?

A The money was in payment for the debt of the MIA Authority to
PNCC, your Honor.

*Q If it was for the payment of such obligation why was there no

voucher prepared to cover such payment? In other words, why was
the delivery of the money not covered by any voucher?

A The instruction to me was to give it to the Office of the President,

your Honor.

*PJ GARCHITORENA

*Q Be that as it may, why was there no voucher to cover this

particular disbursement?

A I was just told to bring it to the Office of the President, your Honor.

*AJ DEL ROSARIO

*Q Was that normal procedure for you to pay in cash to the Office of
the President for obligations of the MIAA in payment of its obligation
to another entity?

WITNESS

A No, your Honor, I was just following the Order to me of the

President.

*PJ GARCHITORENA

*Q So the Order was out of the ordinary?

A Yes, your Honor.

*AJ DEL ROSARIO

Did you file any written protest with the manner with which such
payment was being ordered?

A No, your Honor.

*Q Why not?

A Because with that instruction of the President to me, I followed,

your Honor.

*Q Before receiving this memorandum Exhibit "1", did the former

President Marcos discuss this maitter with you?

A Yes, your Honor.

*Q When was that?

A He called me up earlier, a week before that, that he wants to me

pay what I owe the PNCC directly to his office in cash, your Honor.

*PJ GARCHITORENA

*Q By "I OWE ", you mean the MIAA?

WITNESS

A Yes, your Honor.

*AJ DEL ROSARIO

*Q And what did you say in this discussion you had with him?

A I just said, "Yes, sir, I will do it/"

*Q Were you the one who asked for a memorandum to be signed by
him?

A No, your Honor.

*Q After receiving that verbal instruction for you to pay MIAA's

obligation with PNCC, did you not on your own accord already
prepare the necessary papers and documents for the payment of that
obligation?

A He told me verbally in the telephone that the Order for the payment
of that obligation is forthcoming, your Honor. I will receive it.

*Q Is this the first time you received such a memorandum from the
President?

A Yes, your Honor.

*Q And was that the last time also that you received such a
memorandum?

A Yes, your Honor.

*Q Did you not inquire, if not from the President, at least from Mrs.
Gimenez why this procedure has to be followed instead of the regular
procedure?

A No, sir.

*AJ DEL ROSARIO

*Q Why did you not ask?

A I was just ordered to do this thing, your Honor.

*AJ HERMOSISIMA

*Q You said there was an "I OWE YOU"?

A Yes, your Honor.

*Q Where is that "I OWE YOU" now?

A All I know is that we owe PNCC the amount of P99.1 million, your
Honor. MIAA owes PNCC that amount.

*Q Was this payment covered by receipt from the PNCC?

A It was not covered, your Honor.

*Q So the obligation of MIAA to PNCC was not, for the record,
cancelled by virtue of that payment?

A Based on the order to me by the former President Marcos ordering

me to pay that amount to his office and then the mechanics will come
after, your Honor.

*Q Is the PNCC a private corporation or government entity?

A I think it is partly government, your Honor.

*PJ GARCHITORENA

*Q That is the former CDCP?

A Yes, your Honor.

*AJ HERMOSISIMA

*Q Why were you not made to pay directly, to the PNCC considering
that you are the Manager of MIA at that time and the PNCC is a
separate corporation, not an adjunct of Malacañang?

WITNESS

A I was just basing it from the Order of Malacanang to pay PNCC

through the Office of the President, your Honor.

*Q Do you know the President or Chairman of the Board of PNCC?

A Yes, your Honor.

"Q How was the obligation of MIAA to PNCC incurred. Was it through
the President or Chairman of the Board?

A PNCC was the one that constructed the MIA, your Honor.

*Q Was the obligation incurred through the President or Chairman of

the Board or President of the PNCC? In other words, who signed the
contract between PNCC and MIAA?

A Actually, we inherited this obligation, your Honor. The one who

signed for this was the former Director of BAT which is General
Singzon. Then when the MIA Authority was formed, all the obligations
of BAT were transferred to MIAA. So the accountabilities of BAT were
transferred to MIAA and we are the ones that are going to pay, your
Honor.

*Q Why did you agree to pay to Malacañang when your obligation

was with the PNCC?
A I was ordered by the President to do that, your Honor.

*Q You agreed to the order of the President notwithstanding the fact

that this was not the regular course or Malacañang was not the
creditor?

A I saw nothing wrong with that because that is coming, from the
President, your Honor.

*Q The amount was not a joke, amounting to P55 million, and you
agreed to deliver money in this amount through a mere receipt from
the private secretary?

A I was ordered by the President, your Honor.

*PJ GARCHITORENA

*Q There is no question and it can be a matter of judicial knowledge

that you have been with the MIA for sometime?

A Yes, your Honor.

*Q Prior to 1986?

A Yes, your Honor.

*Q Can you tell us when you became the Manager of MIA?

A I became Manager of MIA way back, late 1968, your Honor.

*Q Long before the MIA was constituted as an independent

authority?

A Yes, your Honor.

*PJ GARCHITORENA

*Q And by 1986, you have been running the MIA for 18 years?

WITNESS

A Yes, your Honor.

*Q And prior to your Joining the MIA, did you ever work for the
government?

A No, your Honor.

*Q So, is it correct for us to say that your joining the MIA in 1968 as
its Manager was your first employment ,with the government?
A Yes, your Honor.

*Q While you were Manager of MIA, did you have other subsequent
concurrent positions in the government also?

A I was also the Chairman of the Games and Amusement Board,

your Honor.

*Q But you were not the executive or operating officer of the Games
and Amusement Board?

A I was, your Honor.

*Q As Chairman you were running the Games and Amusement

Board?

A Yes, your Honor.

*Q What else, what other government positions did you occupy that
time?

A I was also Commissioner of the Game Fowl Commission, your

Honor.

*PJ GARCHITORENA

*Q That is the cockfighting?

WITNESS

A Yes, your Honor.

*Q Here, you were just a member of the Board?

A Yes, your Honor.

*Q So you were not running the commission?

A Yes, your Honor.

*Q Any other entity?

A No more, your Honor.

*Q As far as you can recall, besides being the Manager of the MIA
and later the MIAA for approximately 18 years, you also ran the
Games and Amusement Board as its executive officer?

A Yes, your Honor.

*Q And you were a commissioner only of the Came Fowl
Commission?

A Yes, your Honor.

*Q Who was running the commission at that time?

A I forgot his name, but he retired already, your Honor.

*Q All of us who joined the government, sooner or later, meet with our
Resident COA representative?

A Yes, your Honor.

*PJ GARCHITORENA

*Q And one of our unfortunate experience (sic) is when the COA

Representative comes to us and says: "Chairman or Manager, this
cannot be". And we learn later on that COA has reasons for its
procedure and we learn to adopt to them?

WITNESS

A Yes, your Honor.

*Q As a matter of fact, sometimes we consider it inefficient,

sometimes we consider it foolish, but we know there is reason in this
apparent madness of the COA and so we comply?

A Yes, your Honor.

*Q And more than anything else the COA is ever anxious for proper
documentation and proper supporting papers?

A Yes, your Honor.

*Q Sometimes, regardless of the amount?

A Yes, your Honor.

*Q Now, you have P55 million which you were ordered to deliver in
cash, not to the creditor of the particular credit, and to be delivered in
armored cars to be acknowledged only by a receipt of a personal
secretary. After almost 18 years in the government service and
having had that much time in dealing with COA people, did it not
occur to you to call a COA representative and say, "What will I do
here?"

A I did not, your Honor.

*PJ GARCHITORENA

*Q Did you not think that at least out of prudence, you should have
asked the COA for some guidance on this matter so that you will do it
properly?

WITNESS

A What I was going to do is, after those things I was going to tell that
delivery ordered by the President to the COA, your Honor.

*Q That is true, but what happened here is that you and Mr. Dabao or
you and Mr. Peralta signed requests for issuance of Manager's
checks and you were accommodated by the PNB Office at Nichols
without any internal documentation to justify your request for
Manager's checks?

A Yes, your Honor.

*Q Of course we had no intimation at that time that Mr. Marcos will

win the elections but even then, the Daily Express, which was
considered to be a newspaper friendly to the Marcoses at that time,
would occasionally come with so-called expose, is that not so?

A Yes, your Honor.

*Q And worst, you had the so-called mosquito press that would
always come out with the real or imagined scandal in the government
and place it in the headline, do you recall that?

A Yes, your Honor.

*PJ GARCHITORENA

Under these circumstances, did you not entertain some apprehension

that some disloyal employees might leak you out and banner
headline it in some mosquito publications like the Malaya at that
time?

WITNESS

A No, your Honor.

*PJ GARCHITORENA

I bring this up because we are trying to find out different areas of fear.
We are in the government and we in the government fear the COA
and we also fear the press. We might get dragged into press releases
on the most innocent thing. You believe that?

A Yes, your Honor.

 *Q And usually our best defense is that these activities are properly
documented?

A Yes, your Honor.

*Q In this particular instance, your witnesses have told us about three

(3) different trips from Nichols to Aguado usually late in the day
almost in movie style fashion. I mean, the money being loaded in the
trunk of your official car and then you had a back-up truck following
your car?

A Yes, your Honor.

*Q Is that not quite a fearful experience to you ?

A I did not think of that at that time, your Honor.

*PJ GARCHITORENA

"Q You did not think it fearful to be driving along Roxas Boulevard
with P25 million in the trunk of your car?

WITNESS

A We have security at that time your Honor.

ATTY. ANDRES

Your Honor, the P25 million was in the armored car; only P5 million
was in the trunk of his car.

*PJ GARCHITORENA

Thank you for the correction. Even P1 million only. How much more
with P5 million inside the trunk of your car, was that not a nervous
experience?

A As I have said, your Honor, I never thought of that.

PJ GARCHITORENA

Thank you very much, Mr. Tabuena. You are excused. . . .  42

(PERALTA)

(He testified on direct examination that he co-signed with Tabuena a memorandum request for the
issuance of the Manager's Check for P5 Million upon order of Tabuena and that he [Peralta] was
aware that MIAA had an existing obligation with PNCC in the amount of around P27 Million. He
affirmed having accompanied Tabuena at the PNB Villamor Branch to withdraw the P5 Million, but
denied having misappropriated for his own benefit said amount or any portion thereof.)
CROSS-EXAMINATION BY PROS VIERNES

Q Will you please tell the Honorable Court why was it necessary for
you to co-sign with Mr. Tabuena the request for issuance of
Manager's check in the amount of P5 million?

A At that time I was the Acting Financial Services Manager of MIAA,

sir, and all withdrawals of funds should have my signature because I
was one of the signatories at that time.

Q As Acting Financial Services Manager of MIAA, you always co-sign

with Mr. Tabuena in similar requests for the issuance of Manager's
checks by the PNB?

A That is the only occasion I signed, sir.

Q Did you say you were ordered by Mr. Tabuena to sign the request?

A Yes, sir, and I think the order is part of the exhibits and based on
that order, I co-signed in the request for the issuance of Manager's
check in favor of Mr. Luis Tabuena.

PROS VIERNES

Q Was there a separate written order for you to co-sign with Mr.
Tabuena?

WITNESS

A Yes, sir, an order was given to me by Mr. Tabuena.

*PJ GARCHITORENA

Was that marked in evidence?

WITNESS

Yes, your Honor.

*PJ GARCHITORENA

What exhibit?

WITNESS

I have here a copy, your Honor. This was the order and it was
marked as exhibit "N".

PROS VIERNES
It was marked as Exhibit "M", your Honor.

Q How did you know there was an existing liability of MIAA in favor of
PNCC at that time?

A Because prior to this memorandum of Mr. Tabuena, we prepared

the financial statement of MIAA as of December 31, 1985 and it came
to my attention that there was an existing liability of around
P27,999,000.00, your Honor.

Q When was that Financial Statement prepared?

A I prepared it around January 22 or 24, something like that, of 1986,

sir.

Q Is it your usual practice to prepare the Financial Statement after the

end of the year within three (3) weeks after the end of the year?

A Yes, sir, it was a normal procedure for the MIAA to prepare the
Financial Statement on or before the 4th Friday of the month because
there will be a Board of Directors Meeting and the Financial
Statement of the prior month will be presented and discussed during
the meeting.

*PJ GARCHITORENA

*Q This matter of preparing Financial Statement was not an annual

activity but a monthly activity?

A Yes, your Honor.

*Q This Financial Statement you prepared in January of 1986

recapitulated the financial condition as of the end of the year?

A Yes, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Q You made mention of a request for Escalation Clause by former

Minister Ongpin. Did you personally see that request?

A When this order coming from Mr. Tabuena was shown to me, I was
shown a copy, sir. I have no file because I just read it.

Q It was Mr. Tabuena who showed you the letter of Minister Ongpin?
A Yes, sir.

*PJ GARCHITORENA

And that will be Exhibit?

ATTY. ANDRES

Exhibit "2" and "2-A", your Honor.

PROS VIERNES

Q You also stated that you were with Mr. Tabuena when you
withdrew the amount of P5 million from the PNB Extension Office at
Villamor?

A Yes, sir.

Q Why was it necessary for you to go with him on that occasion?

A Mr. Tabuena requested me to do the counting by million, sir. So

what I did was to bundle count the P5 million and it was placed in two
(2) peerless boxes.

Q Did you actually participate in the counting of the money by

bundles?

A Yes, sir.

Q Bundles of how much per bundle?

A If I remember right, the bundles consisted of P100s and P50s, sir.

Q No P20s and P10s?

A Yes, sir, I think it was only P100s and P50s.

*PJ GARCHITORENA

*Q If there were other denominations, you can not recall?

A Yes, your Honor.

PROS VIERNES

Q In how many boxes were those bills placed?

A The P5 million were placed in two (2) peerless boxes,

Q And you also went with Mr. Tabuena to Aguado?

A No, sir, I was left behind at Nichols. After it was placed at the trunk
of the car of Mr. Tabuena, I was left behind and I went back to my
office at MIA.

Q But the fact is that, this P5 million was withdrawn at passed 5:00
o'clock in the afternoon?

A I started counting it I think at around 4:30, sir. It was after office

hours. But then I was there at around 4:00 o'clock and we started
counting at around 4:30 p.m. because they have to place it in a room,
which is the office of the Manager at that time.

Q And Mr. Tabuena left for Malacañang after 5:00 o'clock in the
afternoon of that date?

A Yes, sir. After we have counted the money, it was placed in the
peerless boxes and Mr. Tabuena left for Malacanang.

PROS VIERNES

Q And you yourself, returned to your office at MIA?

WITNESS

A Yes, sir.

Q Until what time do you hold office at the MIA?

A Usually I over-stayed for one (1) or two (2) hours just to finish the
paper works in the office, sir.

Q So, even if it was already after 5:00 o'clock in the afternoon, you
still went back to your office at MIA?

A Yes, sir.

PROS VIERNES

That will be all, your Honor.

PJ GARCHITORENA

Redirect?

ATTY. ESTEBAL

No redirect, your Honor.

*PJ GARCHITORENA
Questions from the Court.

*AJ DEL ROSARIO

*Q Did you not consider it as odd that your obligation with the PNCC
had to be paid in cash?

WITNESS

A Based on the order of President Marcos that we should pay in

cash, it was not based on the normal procedure, your Honor.

*Q And, as Acting Financial Services Manager, you were aware that

all disbursements should be covered by vouchers?

A Yes, your Honor, the payments should be covered by vouchers.

But then, inasmuch as what we did was to prepare a request to the
PNB, then this can be covered by Journal Voucher also.

*Q Was such payment of P5 million covered by a Journal Voucher?

A Yes, your Honor.

*Q Did you present that Journal Voucher here in Court?

A We have a copy, your Honor.

*Q Do you have a copy or an excerpt of that Journal Voucher

presented in Court to show that payment?

A We have a copy of the Journal Voucher, your Honor.

*Q Was this payment of P5 million ever recorded in a cashbook or

other accounting books of MIAA ?

A The payment of P5 million was recorded in a Journal Voucher, your

Honor.

*PJ GARCHITORENA

*Q In other words, the recording was made directly to the Journal?

WITNESS

A Yes, your Honor.

*Q There are no other separate documents as part of the application

for Manager's Check?

A Yes, your Honor, there was none.

*AJ DEL ROSARIO

*Q After the payment was made, did your office receive any receipt
from PNCC?

A I was shown a receipt by Mr. Tabuena, the receipt given by Mrs. Fe

Roa Gimenez, your Honor. Inasmuch as the payment should be
made through the Office of the president, I accepted the receipt given
by Mrs. Fe Gimenez to Mr. Tabuena.

*Q After receiving that receipt, did you prepare the necessary

supporting documents, vouchers, and use that receipt as a
supporting document to the voucher?

A Your Honor, a Journal Voucher was prepared for that.

*Q How about a disbursement voucher?

A Inasmuch as this was a request for Manager's check, no

disbursement voucher was prepared, your Honor.

*AJ DEL ROSARIO

*Q Since the payment was made on January 31, I986, and that was
very close to the election held in that year, did you not entertain any
doubt that the amounts were being used for some other purpose?

ATTY. ESTEBAL

With due respect to the Honorable Justice, we are objecting to the

question on the ground that it is improper.

*AJ DEL ROSARIO

I will withdraw the question.

*PJ GARCHITORENA

What is the ground for impropriety?

ATTY. ESTEBAL

This is not covered in the direct examination, and secondly, I don't

think there was any basis, your Honor.

*PJ GARCHITORENA

Considering the withdrawal of the question, just make the objection

on record.
*AJ HERMOSISIMA

*Q As a Certified Public Accountant and Financial Manager of the

MIAA, did you not consider it proper that a check be issued only after
it is covered by a disbursement voucher duly approved by the proper
authorities ?

A Your Honor, what we did was to send a request for a Manager's

check to the PNB based on the request of Mr. Tabuena and the order
of Mr. Tabuena was based on the Order of President Marcos.

*PJ GARCHITORENA

*Q In your capacity as Financial Services Manager of the MIAA, did

you not think it proper to have this transaction covered by a
disbursement voucher?

WITNESS

A Based on my experience, payments out of cash can be made

through cash vouchers, or even though Journal Vouchers, or even
through credit memo, your Honor.

*AJ HERMOSISIMA

*Q This was an obligation of the MIAA to the PNCC. Why did you
allow a disbursement by means of check in favor of Mr. Luis
Tabuena, your own manager?

A We based the payment on the order of Mr. Tabuena because that

was the order of President Marcos to pay PNCC through the Office of
the President and it should be paid in cash, your Honor.

*Q You are supposed to pay only on legal orders. Did you consider
that legal?

ATTY. ESTEBAL

With due respect to the Honorable Justice, the question calls for a
conclusion of the witness.

*PJ GARCHITORENA

Considering that tire witness is an expert, witness may answer.

WITNESS

A The order of president Marcos was legal at that time because the
order was to pay PNCC the amount of P5 million through the Office of
the President and it should be paid in cash, your Honor. And at that
time, I know for a fact also that there was an existing P.D. wherein
the President of the Republic of the Philippines can transfer funds
from one office to another and the PNCC is a quasi government entity
at that time.

*AJ HERMOSISIMA

*Q Are you saying that this transaction was made on the basis of that
P.D. which you referred to?

A I am not aware of the motive of the President, but then since he is

the President of the Philippines, his order was to pay the PNCC
through the Office of the President, your Honor.

*Q As Financial Manager, why did you allow a payment in cash when

ordinarily payment of an obligation of MIAA is supposed to be paid in
check?

A I caused the payment through the name of Mr. Tabuena because

that was the order of Mr. Tabuena and also he received an order
coming from the President of the Philippines at that time, your Honor.

*PJ GARCHITORENA

*Q Mr. Peralta, are not Journal Vouchers merely entries in the

Journals to correct certain statements of accounts earlier made in the
same journal?

In other words, really what you are telling us is that, a Journal

Voucher is to explain a transaction was otherwise not recorded.

WITNESS

A Yes, your Honor.

*Q Therefore, when you said that a Journal Voucher here is proper,

you are saying it is proper only because of the exceptional nature of
the transactions?

A Yes, your Honor.

*Q In other words, as an Accountant, you would not normally

authorize such a movement of money unless it is properly
documented?

ATTY. ESTEBAL

With due respect to the Honorable Presiding Justice, I think the

question is misleading because what the witness stated is. . .

*PJ GARCHITORENA
Be careful in your objection because the witness understands the
language you are speaking, and therefore, you might be coaching
him.

ATTY. ESTEBAL

No, your Honor. I am also an accountant that is why I could say that. .
.

*PJ GARCHITORENA

Please be simple in your objection.

ATTY. ESTEBAL

The question is misleading on the ground that what the witness

stated earlier is that the Journal Voucher in this particular case was
supported, your Honor.

*PJ GARCHITORENA

Overruled, may answer.

WITNESS

A The transaction was fully documented since we have the order of

the General Manager at that time and the order of President Marcos,
your Honor.

*Q Are you saying the Order of the General Manager is an adequate

basis for the movement of money?

A Yes, your Honor, because at that time we have also a recorded

liability of P27 million.

*Q we are not talking of whether or not there was a liability. What we

are saying is, is the order of the General Manager by itself adequate
with no other supporting papers, to justify the movement of funds?

A Yes, your Honor. The order of Mr. Luis Tabuena was based on our
existing liability of P27,931,000.00, inasmuch as we have that liability
and I was shown the order of President Marcos to pay P5 million
through the Office of the President, I considered the order of Mr. Luis
Tabuena, the order of President Marcos and also the existing liability
of P27 million sufficient to pay the amount of P5 million. Inasmuch as
there is also an escalation clause of P99.1 million, the payment of P5
million is fully covered by those existing documents.

*PJ GARCHITORENA
You keep flooding us with details we are not asking for. We are not
asking you whether or not there was valid obligation. We are not
asking you about the escalation clause. We are asking you whether
or not this particular order of Mr. Tabuena is an adequate basis to
justify the movement of funds?

WITNESS

When we pay, your Honor, we always look for the necessary

documents and at that time I know for a fact that there was this
existing liability.

*PJ GARCHITORENA

When we ask questions and when we answer them, we must listen to

the question being asked and not to whatever you wanted to say. I
know you are trying to protect yourself. We are aware of your
statement that there are all of these memoranda.

*Q By your disbursement of such amount, you are saying that the

order of Mr. Tabuena by itself is adequate?

WITNESS

A As far as I am concerned, your Honor, inasmuch as we have a

liability and I was shown the Order of President Marcos to pay PNCC
through his office, I feel that the order of the General Manager, the
order of President Marcos, and also the memorandum of Minister
Ongpin are sufficient to cause the payment of P5 million.

*PJ GARCHITORENA

*Q This Presidential Decree which authorizes the President to

transfer funds from one department to another, is this not the one that
refers to the realignment of funds insofar as the Appropriation Act is
concerned?

WITNESS

A Because at that time, your Honor, I have knowledge that the

President is authorized through a Presidential Decree to transfer
government funds from one office to another.

*PJ GARCHITORENA

*Q Under the Appropriation Act. Are payments of debts of the MIAA

covered by the Appropriation Act?

A I think the liability was duly recorded and appropriations to pay the
amount is. . . . (interrupted)
*PJ GARCHITORENA

*Q Tell me honestly, is your answer responsive to the question or are

you just throwing words at us in the hope that we will forget what the
question is?

A No, your Honor.

*Q Are you telling us that the debts incurred by MIAA ate covered by
the Appropriations Act so that the payment of this debt would be in
the same level as the realignment of funds authorized the President?
Or are you telling as you did not read the Decree?

A I was aware of that Decree, your Honor.

*PJ GARCHITORENA

Mr. Estebal, will you include in your memorandum what are the
Decrees authorizing this movement of funds?

ATTY. ESTEBAL

Yes, your Honor.

*PJ GARCHITORENA

*Q It is true that President Marcos was the President, but he was not
an officer of the MIAA, was he?

A No, your Honor.

*Q In fact, for purposes of internal control, you have different officers

and different officials in any company either government or private,
which are supposed to check and balance each other, is it not?

A Yes, your Honor.

*Q So that when disbursements of funds are made, they are made by

authority of not only one person alone so that nobody will restrain
him?

A Yes, your Honor.

*Q These checks and balances exist in an entity so that no one

person can dispose of funds in any way he likes?

A Yes, your Honor.

*Q And in fact, the purpose for having two (2) signatories to

documents and negotiable documents is for the same purpose?
A Yes, your Honor.

*PJ GARCHITORENA

*Q In other words, the co-signatories counter check each other?

WITNESS

A Yes, your Honor.

*Q In your case, you would be the counter check for Mr. Tabuena?

A Yes, your Honor.

*Q In the other words, even if Mr. Tabuena is the Manager, you as

Financial Services Manager and as counter signatory are in a
position to tell Mr. Tabuena, "I am sorry, you are my superior but this
disbursement is not proper and, therefore, I will not sign it"., if in your
opinion the disbursement is not proper?

A Yes, your Honor.

*Q Therefore, as a co-signatory, you expected to exercise your

judgment as to the propriety of a particular transactions?

A Yes, your Honor.

*Q And this is something you know by the nature of your position and
because you are a Certified Public Accountant?

A Yes, your Honor.

*AJ DEL ROSARIO

*Q You admit that the payment of P5 million and P50 million were
unusual in the manner with which they were disposed?

A Yes, your Honor.

*Q Did you submit a written protest to the manner in which such

amount was being disposed of?

A A written protest was not made, your Honor, but I called the
attention of Mr. Tabuena that since this payment was upon the order
of President Marcos, then I think as President he can do things which
are not ordinary.

*Q If you did not prepare a written protest, did you at least prepare a
memorandum for the record that this was an extra-ordinary
transaction?
 A I called the attention of Mr. Tabuena that this was an extra-ordinary
transaction and no written note, your Honor.

PJ GARCHITORENA

Thank you very much Mr. Peralta, you are excused. . . .  43

This Court has acknowledged the right of a trial judge to question witnesses with a view to satisfying
his mind upon any material point which presents itself during the trial of a case over which he
presides.   But not only should his examination be limited to asking "clarificatory" questions,   the
44 45

right should be sparingly and judiciously used; for the rule is that the court should stay out of it as
much as possible, neither interfering nor intervening in the conduct of the trial.  Here, these
46

limitations were not observed. Hardly in fact can one avoid the impression that the Sandiganbayan
had allied itself with, or to be more precise, had taken the cudgels for the prosecution in proving the
case against Tabuena and Peralta when the Justices cross-examined the witnesses, their cross-
examinations supplementing those made by Prosecutor Viernes and far exceeding the latter's
questions in length. The "cold neutrality of an impartial judge" requirement of due process was
certainly denied Tabuena and Peralta when the court, with its overzealousness, assumed the dual
role of magistrate and advocate. In this connection, the observation made in the Dissenting Opinion
to the effect that the majority of this Court was "unduly disturbed" with the number of court questions
alone, is quite inaccurate. A substantial portion of the TSN was incorporated in the majority opinion
not to focus on "numbers" alone, but more importantly to show that the court questions were in the
interest of the prosecution and which thus depart from that common standard of fairness and
impartiality. In fact, it is very difficult to be, upon review of the records, confronted with "numbers"
without necessarily realizing the partiality of the Court. In "US v. De Sisto" (2 Cir., 1961, 289 F 2d
833), for example, a new trial was required because the trial judge, as in this case, indulged in
extensive questioning of defendant and his witnesses, and the reviewing court also had to amplify on
"numbers" to bolster this. It was pointed out in the "De Sisto" case that the judge asked 3,115
questions of all witnesses, the prosecutor asked but 1,381, defense counsel 3,330. The judge's
questions to the defendant De Sisto totalled 306, the prosecutor's 347, and the defense counsel's,
201. After referring to these figures, the court stated:

. . . It is indeed an impressive proportion, but no such mathematical computation is of

itself determinative. However, taking all this in conjunction with the long and vigorous
examination of the defendant himself by the judge, and the repeated belittling by the
judge of defendant's efforts to establish the time that Fine left the pier, we fear that in
its zeal for arriving at the facts the court here conveyed to the jury too strong an
impression of the court's belief in the defendant's probable guilt to permit the jury
freely to perform its own function of independent determination of the facts. . . .

The majority believes that the interference by the Sandiganbayan Justices was just too
excessive that it cannot be justified under the norm applied to a jury trial, or even under the
standard employed in a non-jury trial where the judge is admittedly given more leeway in
propounding questions to clarify points and to elicit additional relevant evidence. At the risk
of being repetitious, we will amplify on this via some specific examples. Based on the
evidence on record, and on the admission of Tabuena himself, the P55 million was delivered
to the President's Office thru Mrs. Gimenez, in obedience to the Presidential directive. One
Sandiganbayan Justice, however, hurled the following questions to Peralta:

AJ DEL ROSARIO
 Q: Since the payment was made on January 31, 1986, and that was
very close to the election held in that year, did you not entertain any
doubt that the amounts were being used for some other purposes?

ATTY. ESTEBAL

With due respect to the Honorable Justice, We are objecting to the

question on the ground that it is improper.

AJ DEL ROSARIO

I will withdraw the question.

PJ GARCHITORENA

What is the ground for impropriety?

ATTY. ESTEBAL

This is not covered in the direct examination, and secondly, I don't

think there was any basis, Your Honor.

PJ GARCHITORENA

Considering the withdrawal of the question, just make the objection

on record.

Nothing from the preceding questions of counsels or of the court would serve as basis for
this question. How then, can this be considered even relevant? What is the connection
between the payment made to the President's office and the then forthcoming presidential
"snap election"? In another instance, consider the following questions of Presiding Justice
Garchitorena:

*PJ GARCHITORENA

*Q Mr. Peralta, are not Journal Vouchers merely entries in the

Journals to correct certain statements of accounts earlier made in the
same journal?

x x x           x x x          x x x

*Q In other words, really what you are telling us is that, a Journal

Voucher is to explain a transaction was otherwise not recorded.

x x x           x x x          x x x

*Q Therefore, when you said that a Journal Voucher here is proper,

you are saying it is proper only because of the exceptional nature of
the transactions?
 x x x           x x x          x x x

*Q In other words, as an Accountant, you would not normally

authorize such a movement of money unless it is properly
documented?

ATTY. ESTEBAL

With due respect to the Honorable Presiding Justice, I think the

question is misleading because what the witness stated is . . .

*PJ GARCHITORENA

Be careful in your objection because the witness understands the

language you are speaking, and therefore, you might be coaching
him.

ATTY. ESTEBAL

No, your Honor. I am also an accountant that is why I could say

that . . .

*PJ GARCHITORENA

Please be simple in your objection.

ATTY. ESTEBAL

The question is misleading on the ground that what the witness

stated earlier is that the Journal Voucher in this particular case was
supported, your Honor.

*PJ GARCHITORENA

Overruled may answer.

WITNESS

A The transaction was fully documented since we have the order of

the General Manager at that time and the order of President Marcos,
your Honor.

*Q Are you saying the Order of the General Manager is an adequate

basis for the movement of money?

*Q We are not talking of whether or not there was a liability. What we

are saying is, is the order of the General Manager by itself adequate
with no other supporting papers, to justify the movement of funds?

*PJ GARCHITORENA
You keep flooding us with details we are not asking for. We are not
asking you whether or not there was valid obligation. We are not
asking you about the escalation clause. We are asking you whether
or not this particular order of Mr. Tabuena is an adequate basis to
justify the movement of funds?

*PJ GARCHITORENA

When we ask questions and when we answer them, we must listen to

the question being asked and not to whatever you wanted to say. I
know you are trying to protect yourself. We are aware of your
statement that there are all of these memoranda.

*Q By your disbursement of such amount, you are saying that the

order of Mr. Tabuena by itself is adequate?

*PJ GARCHITORENA

*Q This Presidential Decree which authorizes the President to

transfer funds from one department to another, is this not the one that
refers to the realignment of funds insofar as the Appropriation Act is
concerned?

*PJ GARCHITORENA

*Q Under the Appropriation Act. Are payments of debts of the MIAA

covered by the Appropriation Act?

*PJ GARCHITORENA

*Q Tell me honestly, is your answer responsive to the question or are

you just throwing words at us in the hope that we will forget what the
question is?

xxx xxx xxx

*Q Are you telling us that the debts incurred by MIAA are covered by
the Appropriations Act so that the payment of this debt would be in
the same level as the realignment of funds authorized the President?
Or are you telling as you did not read the Decree?

*PJ GARCHITORENA

Mr. Estebal, will you include in your memorandum what are the
Decrees authorizing this movement of funds?

ATTY. ESTEBAL

Yes, your Honor.

*PJ GARCHITORENA
 *Q It is true that President Marcos was the President, but he was not
an officer of the MIAA, was he?

*Q In fact, for purposes of internal control, you have different in

officers and different officials in any company either government or
private, which are supposed to check and balance each other, is it
not?

*Q So that when disbursements of funds are made, they are made by

authority of not only one person alone so that nobody will restrain
him?

*Q These checks and balances exist in an entity so that no one

person can dispose of funds in any way he likes?

*Q And in fact, the purpose for having two (2) signatories to

documents and negotiable documents is for the same purpose?

*PJ GARCHITORENA

*Q In other words, the co-signatories counter check each other?

*Q In your case, you would be the counter check for Mr. Tabuena?

*Q In other words, even if Mr. Tabuena is the Manager, you as

Financial Services Manager and as counter signatory are in a
position to tell Mr. Tabuena, "I am sorry, you are my superior but this
disbursement is not proper and, therefore, I will not sign it.", if in your
opinion the disbursement is not proper?

*Q Therefore, as co-signatory, you are expected to exercise your

judgment as to the propriety of a particular transaction ?

*Q And this is something you know by the nature of your position and
because you are a Certified Public Accountant?  47

How can these questions be considered clarificatory when they clearly border more on
cross-examination questions? Thus, the Dissenting Opinion's focus on the distinction
between the two kinds of trial to justify the Sandiganbayan's active participation in the
examination of petitioners Tabuena and Peralta and witness Monera, with due respect,
appears insignificant to this case. Let it, therefore, be emphasized anew that:

A trial judge should not participate in the examination of witnesses as to create the
impression that he is allied with the prosecution. 48

We doubt not that the sole motive of the learned judge was to ascertain the truth of
the transaction, but it is never proper for a judge to discharge the duties of a
prosecuting attorney. However anxious a judge may be for the enforcement of the
law, he should always remember that he is as much judge in behalf of the defendant
accused of crime, and whose liberty is in jeopardy, as he is judge in behalf of the
state, for the purpose of safeguarding the interests of society.  49
Ordinarily it is not good practice for the presiding judge himself to examine witnesses
at length. The circumstances may be such in a given case as to justify the court in so
doing. . . . This court, however, has more than once said that the examination of
witnesses is the more appropriate function of counsel, and the instances are rare and
the conditions exceptional which will justify the presiding judge in conducting an
extensive examination. It is always embarrassing for counsel to object to what he
may deem improper questions by the court. Then, in conducting a lengthy
examination, it would be almost impossible for the judge to preserve a judicial
attitude. While he is not a mere figurehead or umpire in a trial, and it is his duty to
see that justice is done, he will usually not find it necessary to conduct such
examinations. The extent to which this shall be done must largely be a matter of
discretion, to be determined by the circumstances of each particular case, but in so
doing he must not forget the function of the judge and assume that of an
advocate. . . 
50

While it is true that the manner in which a witness shall be examined is largely in the
discretion of the trial judge, it must be understood that we have not adopted in this
country the practice of making the presiding judge the chief inquisitor. It is better to
observe our time-honored custom of orderly judicial procedure, even at the expense
of occasional delays. . . . The judge is an important figure in the trial of a cause, and
while he has the right, and it is often his duty, to question witnesses to the end that
justice shall prevail, we can conceive of no other reason, for him to take the trial of
the cause out of the hands of counsel.  51

The examination of witnesses is the more appropriate function of counsel, and it is

believed the instances are rare and the conditions exceptional in a high degree which
will justify the presiding judge in entering upon and conducting an extended
examination of a witness, and that the exercise of a sound discretion will seldom
deem such action necessary or advisable.  52

He [the judge] may properly intervene in a trial of a case to promote expedition, and
prevent unnecessary waste of time, or to clear up some obscurity, but he should bear
in mind that his undue interference, impatience, or participation in, the examination of
witnesses, or a severe attitude on his part toward witnesses, especially those who
are excited or terrified by the unusual circumstances of a trial, may tend to prevent
the proper presentation of the cause, or the ascertainment of the truth in respect
thereto. 
53

The impartiality of the judge — his avoidance of the appearance of becoming the
advocate of either one side or the other of the pending controversy is a fundamental
and essential rule of special importance in criminal cases. . . 54

Our courts, while never unmindful of their primary duty to administer justice, without
fear or favor, and to dispose of these cases speedily and in as inexpensive a manner
as is possible for the court and the parties, should refrain from showing any
semblance of one-sided or more or less partial attitude in order not to create any
false impression in the minds of the litigants. For obvious reasons, it is the bounden
duty of all to strive for the preservation of the people's faith in our courts.
55

Time and again this Court has declared that due process requires no less than the
cold neutrality of an impartial judge. Bolstering this requirement, we have added that
the judge must not only be impartial but must also appear to be impartial, to give
 added assurance to the parties that his decision will be just. The parties are entitled
to no less than this, as a minimum guaranty of due process.  56

We are well aware of the fear entertained by some that this decision may set a dangerous precedent
in that those guilty of enriching themselves at the expense of the public would be able to escape
criminal liability by the mere expedient of invoking "good faith". It must never be forgotten, however,
that we render justice on a case to case basis, always in consideration of the evidence that is
presented. Thus, where the evidence warrants an acquittal, as in this case, we are mandated not
only by the dictates of law but likewise of conscience to grant the same. On the other hand, it does
not follow that all those similarly accused will necessarily be acquitted upon reliance on this case as
a precedent. For the decision in this case to be a precedent, the peculiar circumstances and the
evidence that led to the petitioner's acquittal must also be present in subsequent cases.

Furthermore, as between a mere apprehension of a "dangerous precedent" and an actual violation

of constitutionally enshrined rights, it is definitely the latter that merits our immediate attention. For
the most dangerous precedent arises when we allow ourselves to be carried away by such fears so
that it becomes lawful to sacrifice the rights of an accused to calm the fearful. In our eagerness to
bring to justice the malefactors of the Marcos regime, we must not succumb to the temptation to
commit the greatest injustice of visiting the sins of the wrongdoers upon an innocent.

WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena and Adolfo M. Peralta
are hereby ACQUITTED of the crime of malversation as defined and penalized under Article 217 of
the Revised Penal Code. The Sandiganbayan Decision of October 12, 1990 and the Resolution
dated December 20, 1991 are REVERSED and SET ASIDE.

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
child's.

Considering the presence of these two mitigating circumstances arising from BWS, as well as the
benefits of the Indeterminate Sentence Law, she may now apply for and be released from custody
on parole, because she has already served the minimum period of her penalty while under detention
during the pendency of this case.

The Case

For automatic review before this Court is the September 25, 1998 Decision of the Regional Trial
1 

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 charged appellant with parricide as follows:

3 

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

Isabel, Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, with intent to kill, with treachery and evident premeditation, did then
and there wilfully, unlawfully and feloniously attack, assault, hit and wound one BEN
GENOSA, her legitimate husband, with the use of a hard deadly weapon, which the accused
had provided herself for the purpose, [causing] the following wounds, to wit:

'Cadaveric spasm.
 'Body on the 2nd stage of decomposition.

'Face, black, blownup & swollen w/ evident 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, appellant pleaded not guilty during her arraignment on March 3,
5 

1997. In due course, she was tried for and convicted of parricide.
6 

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) summarizes the prosecution's version of the facts in this
wise:

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

"On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving their
salary. They each had two (2) bottles of beer before heading home. Arturo would pass Ben's
house before reaching his. When they arrived at the house of Ben, he found out that
appellant had gone to Isabel, Leyte to look for him. Ben went inside his house, while Arturo
went to a store across it, waiting until 9:00 in the evening for the masiao runner to place a
bet. Arturo did not see appellant arrive but on his way home passing the side of the
Genosas' rented house, he heard her say 'I won't hesitate to kill you' to which Ben replied
'Why kill me when I am innocent?' That was the last time Arturo saw Ben alive. Arturo also
noticed that since then, the Genosas' rented house appeared uninhabited and was always
closed.

"On November 16, 1995, appellant asked Erlinda Paderog, her close friend and neighbor
living about fifty (50) meters from her house, to look after her pig because she was going to
Cebu for a pregnancy check-up. Appellant likewise asked Erlinda to sell her motorcycle to
their neighbor Ronnie Dayandayan who unfortunately had no money to buy it.

"That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus going to
Ormoc when he saw appellant going out of their house with her two kids in tow, each one
carrying a bag, locking the gate and taking her children to the waiting area where he was.
Joseph lived about fifty (50) meters behind the Genosas' rented house. Joseph, appellant
and her children rode the same bus to Ormoc. They had no conversation as Joseph noticed
that appellant did not want to talk to him.

"On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor
emanating from his house being rented by Ben and appellant. Steban went there to find out
the cause of the stench but the house was locked from the inside. Since he did not have a
duplicate key with him, Steban destroyed the gate padlock with a borrowed steel saw. He
was able to get inside through the kitchen door but only after destroying a window to reach a
hook that locked it. Alone, Steban went inside the unlocked bedroom where the offensive
smell was coming from. There, he saw the lifeless body of Ben lying on his side on the bed
covered with a blanket. He was only in his briefs with injuries at the back of his head. Seeing
this, Steban went out of the house and sent word to the mother of Ben about his son's
misfortune. Later that day, Iluminada Genosa, the mother of Ben, identified the dead body as
that of [her] son.

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

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

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

"Then, Ben purportedly nagged appellant for following him, even challenging her to a fight.
She allegedly ignored him and instead attended to their children who were doing their
homework. Apparently disappointed with her reaction, Ben switched off the light and, with the
use of a chopping knife, cut the television antenna or wire to keep her from watching
television. According to appellant, Ben was about to attack her so she ran to the bedroom,
but he got hold of her hands and whirled her around. She fell on the side of the bed and
screamed for help. Ben left. At this point, appellant packed his clothes because she wanted
him to leave. Seeing his packed clothes upon his return home, Ben allegedly flew into a
 rage, dragged appellant outside of the bedroom towards a drawer holding her by the neck,
and told her 'You might as well be killed so nobody would nag me.' Appellant testified that
she was aware that there was a gun inside the drawer but since Ben did not have the key to
it, he got a three-inch long blade cutter from his wallet. She however, 'smashed' the arm of
Ben with a pipe, causing him to drop the blade and his wallet. Appellant then 'smashed' Ben
at his nape with the pipe as he was about to pick up the blade and his wallet. She thereafter
ran inside the bedroom.

"Appellant, however, insisted that she ended the life of her husband by shooting him. She
supposedly 'distorted' the drawer where the gun was and shot Ben. He did not die on the
spot, though, but in the bedroom." (Citations omitted)
7 

Version of the Defense

Appellant relates her version of the facts in this manner:

"1. Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to her
marriage, Marivic had graduated from San Carlos, Cebu City, obtaining a degree of Bachelor
of Science in Business Administration, and was working, at the time of her husband's death,
as a Secretary to the Port Managers in Ormoc City. The couple had three (3) children: John
Marben, Earl Pierre and Marie Bianca.

"2. Marivic and Ben had known each other since elementary school; they were neighbors in
Bilwang; they were classmates; and they were third degree cousins. Both sets of parents
were against their relationship, but Ben was persistent and tried to stop other suitors from
courting her. Their closeness developed as he was her constant partner at fiestas.

"3. After their marriage, they lived first in the home of Ben's parents, together with Ben's
brother, Alex, in Isabel, Leyte. In the first year of marriage, Marivic and Ben 'lived happily'.
But apparently, soon thereafter, the couple would quarrel often and their fights would
become violent.

"4. Ben's brother, Alex, testified for the prosecution that he could not remember when Ben
and Marivic married. He said that when Ben and Marivic quarreled, generally when Ben
would come home drunk, Marivic would inflict injuries on him. He said that in one incident in
1993 he saw Marivic holding a kitchen knife after Ben had shouted for help as his left hand
was covered with blood. Marivic left the house but after a week, she returned apparently
having asked for Ben's forgiveness. In another incident in May 22, 1994, early morning, Alex
and his father apparently rushed to Ben's aid again and saw blood from Ben's forehead and
Marivic holding an empty bottle. Ben and Marivic reconciled after Marivic had apparently
again asked for Ben's forgiveness.

"Mrs. Iluminada Genosa, Marivic's mother-in-law, testified too, saying that Ben and Marivic
married in '1986 or 1985 more or less here in Fatima, Ormoc City.' She said as the marriage
went along, Marivic became 'already very demanding. Mrs. Iluminada Genosa said that after
the birth of Marivic's two sons, there were 'three (3) misunderstandings.' The first was when
Marivic stabbed Ben with a table knife through his left arm; the second incident was on
November 15, 1994, when Marivic struck 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 Ben's hand was plastered as 'the bone cracked.'
"Both mother and son claimed they brought Ben to a Pasar clinic for medical intervention.

"5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 'After we
collected our salary, we went to the cock-fighting place of ISCO.' They stayed there for three
(3) hours, after which they went to 'Uniloks' and drank beer – allegedly only two (2) bottles
each. After drinking they bought barbeque and went to the Genosa residence. Marivic was
not there. He stayed a while talking with Ben, after which he went across the road to wait 'for
the runner and the usher of the masiao game because during that time, the hearing on
masiao numbers was rampant. I was waiting for the ushers and runners so that I can place
my bet.' On his way home at about 9:00 in the evening, he heard the Genosas arguing. They
were quarreling loudly. Outside their house was one 'Fredo' who is used by Ben to feed his
fighting cocks. Basobas' testimony on the root of the quarrel, conveniently overheard by him
was Marivic saying 'I will never hesitate to kill you', whilst Ben replied 'Why kill me when I am
innocent.' Basobas thought they were joking.

"He did not hear them quarreling while he was across the road from the Genosa residence.
Basobas admitted that he and Ben were always at the cockpits every Saturday and Sunday.
He claims that he once told Ben 'before when he was stricken with a bottle by Marivic
Genosa' that he should leave her and that Ben would always take her back after she would
leave him 'so many times'.

"Basobas could not remember when Marivic had hit Ben, but it was a long time that they had
been quarreling. He said Ben 'even had a wound' on the right forehead. He had known the
couple for only one (1) year.

"6. Marivic testified that after the first year of marriage, Ben became cruel to her and was a
habitual drinker. She said he provoked her, he would slap her, sometimes he would pin her
down on the bed, and sometimes beat her.

"These incidents happened several times and she would often run home to her parents, but
Ben would follow her and seek her out, promising to change and would ask for her
forgiveness. She said after she would be beaten, she would seek medical help from Dr. Dino
Caing, Dr. Lucero and Dra. Cerillo. These doctors would enter the injuries inflicted upon her
by Ben into their reports. Marivic said Ben would beat her or quarrel with her every time he
was drunk, at least three times a week.

"7. In her defense, witnesses who were not so closely related to Marivic, testified as to the
abuse and violence she received at the hands of Ben.

'7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, testified that on
November 15, 1995, he overheard a quarrel between Ben and Marivic. Marivic was shouting
for help and through the open jalousies, he saw the spouses 'grappling with each other'. Ben
had Marivic in a choke hold. He did not do anything, but had come voluntarily to testify.
(Please note this was the same night as that testified to by Arturo Busabos. )8 

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

'7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were living in
Isabel, Leyte. His house was located about fifty (50) meters from theirs. Marivic is his niece
and he knew them to be living together for 13 or 14 years. He said the couple was always
quarreling. Marivic confided in him that Ben would pawn items and then would use the
money to gamble. One time, he went to their house and they were quarreling. Ben was so
angry, but would be pacified 'if somebody would come.' He testified that while Ben was alive
'he used to gamble and when he became drunk, he would go to our house and he will say,
'Teody' because that was what he used to call me, 'mokimas ta,' which means 'let's go and
look for a whore.' Mr. Sarabia further testified that Ben 'would box his wife and I would see
bruises and one time she ran to me, I noticed a wound (the witness pointed to his right
breast) as according to her a knife was stricken to her.' Mr. Sarabia also said that once he
saw Ben had been injured too. He said he voluntarily testified only that morning.

'7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified that in the
afternoon of November 15, 1995, Marivic went to her house and asked her help to look for
Ben. They searched in the market place, several taverns and some other places, but could
not find him. She accompanied Marivic home. Marivic wanted her to sleep with her in the
Genosa house 'because she might be battered by her husband.' When they got to the
Genosa house at about 7:00 in the evening, Miss Arano said that 'her husband was already
there and was drunk.' Miss Arano knew he was drunk 'because of his staggering walking and
I can also detect his face.' Marivic entered the house and she heard them quarrel noisily.
(Again, please note that this is the same night as that testified to by Arturo Basobas) Miss
Arano testified that this was not the first time Marivic had asked her to sleep in the house as
Marivic would be afraid every time her husband would come home drunk. At one time when
she did sleep over, she was awakened at 10:00 in the evening when Ben arrived because
the couple 'were very noisy in the sala and I had heard something was broken like a vase.'
She said Marivic ran into her room and they locked the door. When Ben couldn't get in he
got a chair and a knife and 'showed us the knife through the window grill and he scared us.'
She said that Marivic shouted for help, but no one came. On cross-examination, she said
that when she left Marivic's house on November 15, 1995, the couple were still quarreling.

'7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at
PHILPHOS, Isabel, Leyte. Marivic was his patient 'many times' and had also received
treatment from other doctors. Dr. Caing testified that from July 6, 1989 until November 9,
1995, there were six (6) episodes of physical injuries inflicted upon Marivic. These injuries
were reported in his Out-Patient Chart at the PHILPHOS Hospital. The prosecution admitted
the qualifications of Dr. Caing and considered him an expert witness.'

xxx   xxx   xxx

'Dr. Caing's clinical history of the tension headache and hypertention of Marivic on twenty-
three (23) separate occasions was marked at Exhibits '2' and '2-B.' The OPD Chart of
Marivic at the Philphos Clinic which reflected all the consultations made by Marivic and
the six (6) incidents of physical injuries reported was marked as Exhibit '3.'

"On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say whether
the injuries were directly related to the crime committed. He said it is only a psychiatrist who
is qualified to examine the psychological make-up of the patient, 'whether she is capable of
committing a crime or not.'
'7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided, testified
that about two (2) months before Ben died, Marivic went to his office past 8:00 in the
evening. She sought his help to settle or confront the Genosa couple who were experiencing
'family troubles'. He told Marivic to return in the morning, but he did not hear from her again
and assumed 'that they might have settled with each other or they might have forgiven with
each other.'

xxx   xxx   xxx

"Marivic said she did not provoke her husband when she got home that night it was her
husband who began the provocation. Marivic said she was frightened that her husband
would hurt her and she wanted to make sure she would deliver her baby safely. In fact,
Marivic had to be admitted later at the Rizal Medical Centre as she was suffering from
eclampsia and hypertension, and the baby was born prematurely on December 1, 1995.

"Marivic testified that during her marriage she had tried to leave her husband at least five (5)
times, but that Ben would always follow her and they would reconcile. Marivic said that the
reason why Ben was violent and abusive towards her that night was because 'he was crazy
about his recent girlfriend, Lulu x x x Rubillos.'

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

'Answering questions from the Court, Marivic said that she threw the gun away; that she did
not know what happened to the pipe she used to 'smash him once'; that she was wounded
by Ben on her wrist with the 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.

"11. The Information, dated November 14, 1996, filed against Marivic Genosa charged her
with the crime of PARRICIDE committed 'with intent to kill, with treachery and evidence
premeditation, x x x wilfully, unlawfully and feloniously attack, assault, hit and wound x x x
her legitimate husband, with the use of a hard deadly weapon x x x which caused his death.'

"12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and 23
September 1997, 12 November 1997, 15 and 16 December 1997, 22 May 1998, and 5 and 6
August 1998.

"13. On 23 September 1998, or only fifty (50) days from the day of the last trial date, the
Hon. Fortunito L. Madrona, Presiding Judge, RTC-Branch 35, Ormoc City, rendered a
JUDGMENT finding Marivic guilty 'beyond reasonable doubt' of the crime of parricide, and
further found treachery as an aggravating circumstance, thus sentencing her to the ultimate
penalty of DEATH.

"14. The case was elevated to this Honorable Court upon automatic review and, under date
of 24 January 2000, Marivic's trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a Motion to
Withdraw as counsel, attaching thereto, as a precautionary measure, two (2) drafts of
Appellant's Briefs he had prepared for Marivic which, for reasons of her own, were not
conformed to by her.

"The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the entry of
appearance of undersigned counsel.

"15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20 January
2000, to the Chief Justice, coursing the same through Atty. Teresita G. Dimaisip, Deputy
Clerk of Court of Chief Judicial Records Office, wherein she submitted her 'Brief without
counsels' to the Court.

"This letter was stamp-received by the Honorable Court on 4 February 2000.

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

"Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then the
only qualified forensic pathologist in the country, who opined that the description of the death
wound (as culled from the post-mortem findings, Exhibit 'A') is more akin to a gunshot wound
than a beating with a lead pipe.

"17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly granted
Marivic's URGENT OMNIBUS MOTION and remanded the case 'to the trial court for the
reception of expert psychological and/or psychiatric opinion on the 'battered woman
syndrome' plea, within ninety (90) days from notice, and, thereafter to forthwith report to this
Court the proceedings taken, together with the copies of the TSN and relevant documentary
evidence, if any, submitted.'

"18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the Hon.
Fortunito L. Madrona, RTC-Branch 35, Ormoc City.

"Immediately before Dra. Dayan was sworn, the Court a quo asked if she had interviewed
Marivic Genosa. Dra. Dayan informed the Court that interviews were done at the Penal
Institution in 1999, but that the clinical interviews and psychological assessment were done
at her clinic.

"Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years with her
own private clinic and connected presently to the De La Salle University as a professor.
Before this, she was the Head of the Psychology Department of the Assumption College; a
member of the faculty of Psychology at the Ateneo de Manila University and St. Joseph's
College; and was the counseling psychologist of the National Defense College. She has an
AB in Psychology from the University of the Philippines, a Master of Arts in Clinical
[Counseling], Psychology from the Ateneo, and a PhD from the U.P. She was the past
president of the Psychological Association of the Philippines and is a member of the
American Psychological Association. She is the secretary of the International Council of
Psychologists from about 68 countries; a member of the Forensic Psychology Association;
and a member of the ASEAN [Counseling] Association. She is actively involved with the
Philippine Judicial Academy, recently lecturing on the socio-demographic and psychological
profile of families involved in domestic violence and nullity cases. She was with the Davide
Commission doing research about Military Psychology. She has written a book entitled
'Energy Global Psychology' (together with Drs. Allan Tan and Allan Bernardo). The Genosa
case is the first time she has testified as an expert on battered women as this is the first case
of that nature.

"Dra. Dayan testified that for the research she conducted, on the socio-demographic and
psychological profile of families involved in domestic violence, and nullity cases, she looked
at about 500 cases over a period of ten (10) years and discovered that 'there are lots of
variables that cause all of this marital conflicts, from domestic violence to infidelity, to
psychiatric disorder.'

"Dra. Dayan described domestic violence to comprise of 'a lot of incidents of psychological
abuse, verbal abuse, and emotional abuse to physical abuse and also sexual abuse.'

xxx   xxx   xxx

"Dra. Dayan testified that in her studies, 'the battered woman usually has a very low opinion
of herself. She has a self-defeating and self-sacrificing characteristics. x x x they usually
think very lowly of themselves and so when the violence would happen, they usually think
that they provoke it, that they were the one who precipitated the violence, they provoke their
spouse to be physically, verbally and even sexually abusive to them.' Dra. Dayan said that
usually a battered x x x comes from a dysfunctional family or from 'broken homes.'

"Dra. Dayan said that the batterer, just like the battered woman, 'also has a very low opinion
of himself. But then emerges to have superiority complex and it comes out as being very
arrogant, very hostile, very aggressive and very angry. They also had (sic) a very low
tolerance for frustrations. A lot of times they are involved in vices like gambling, drinking and
drugs. And they become violent.' The batterer also usually comes from a dysfunctional family
which over-pampers them and makes them feel entitled to do anything. Also, they see often
how their parents abused each other so 'there is a lot of modeling of aggression in the
family.'

"Dra. Dayan testified that there are a lot of reasons why a battered woman does not leave
her husband: poverty, self-blame and guilt that she provoked the violence, the cycle itself
which makes her hope her husband will change, the belief in her obligations to keep the
family intact at all costs for the sake of the children.

xxx   xxx   xxx

"Dra. Dayan said that abused wives react differently to the violence: some leave the house,
or lock themselves in another room, or sometimes try to fight back triggering 'physical
violence on both of them.' She said that in a 'normal marital relationship,' abuses also
happen, but these are 'not consistent, not chronic, are not happening day in [and] day out.' In
an 'abnormal marital relationship,' the abuse occurs day in and day out, is long lasting and
'even would cause hospitalization on the victim and even death on the victim.'

xxx   xxx   xxx

"Dra. Dayan said that as a result of the battery of psychological tests she administered, it
was her opinion that Marivic fits the profile of a battered woman because 'inspite of her
feeling of self-confidence which we can see at times there are really feeling (sic) of loss,
such feelings of humiliation which she sees herself as damaged and as a broken person.
And at the same time she still has the imprint of all the abuses that she had experienced in
the past.'

xxx   xxx   xxx

"Dra. Dayan said Marivic thought of herself as a loving wife and did not even consider filing
for nullity or legal separation inspite of the abuses. It was at the time of the tragedy that
Marivic then thought of herself as a victim.

xxx   xxx   xxx

"19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed away,
appeared and testified before RTC-Branch 35, Ormoc City.

"Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the
Philippine Board of Psychiatry and a Fellow of the Philippine Psychiatry Association. He was
in the practice of psychiatry for thirty-eight (38) years. Prior to being in private practice, he
was connected with the Veterans Memorial Medical Centre where he gained his training on
psychiatry and neurology. After that, he was called to active duty in the Armed Forces of the
Philippines, assigned to the V. Luna Medical Center for twenty six (26) years. Prior to his
retirement from government service, he obtained the rank of Brigadier General. He obtained
his medical degree from the University of Santo Tomas. He was also a member of the World
Association of Military Surgeons; the Quezon City Medical Society; the Cagayan Medical
Society; and the Philippine Association of Military Surgeons.

"He authored 'The Comparative Analysis of Nervous Breakdown in the Philippine Military
Academy from the Period 1954 – 1978' which was presented twice in international
congresses. He also authored 'The Mental Health of the Armed Forces of the Philippines
2000', which was likewise published internationally and locally. He had a medical textbook
published on the use of Prasepam on a Parke-Davis grant; was the first to use Enanthate
(siquiline), on an E.R. Squibb grant; and he published the use of the drug Zopiclom in 1985-
86.

"Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind and
neurology deals with the ailment of the brain and spinal cord enlarged. Psychology, on the
other hand, is a bachelor degree and a doctorate degree; while one has to finish medicine to
become a specialist in psychiatry.

"Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had already
encountered a suit involving violent family relations, and testified in a case in 1964. In the
Armed Forces of the Philippines, violent family disputes abound, and he has seen probably
ten to twenty thousand cases. In those days, the primordial intention of therapy was
reconciliation. As a result of his experience with domestic violence cases, he became a
consultant of the Battered Woman Office in Quezon City under Atty. Nenita Deproza.

"As such consultant, he had seen around forty (40) cases of severe domestic violence,
where there is physical abuse: such as slapping, pushing, verbal abuse, battering and
boxing a woman even to an unconscious state such that the woman is sometimes confined.
The affliction of Post-Traumatic Stress Disorder 'depends on the vulnerability of the victim.'
Dr. Pajarillo said that if the victim is not very healthy, perhaps one episode of violence may
induce the disorder; if the psychological stamina and physiologic constitutional stamina of
the victim is stronger, 'it will take more repetitive trauma to precipitate the post-traumatic
stress disorder and this x x x is very dangerous.'

"In psychiatry, the post-traumatic stress disorder is incorporated under the 'anxiety neurosis
or neurologic anxcietism.' It is produced by 'overwhelming brutality, trauma.'

xxx   xxx   xxx

"Dr. Pajarillo explained that with 'neurotic anxiety', the victim relives the beating or trauma as
if it were real, although she is not actually being beaten at that time. She thinks 'of nothing
but the suffering.'

xxx   xxx   xxx

"A woman who suffers battery has a tendency to become neurotic, her emotional tone is
unstable, and she is irritable and restless. She tends to become hard-headed and persistent.
She has higher sensitivity and her 'self-world' is damaged.

"Dr. Pajarillo said that an abnormal family background relates to an individual's illness, such
as the deprivation of the continuous care and love of the parents. As to the batterer, he
normally 'internalizes what is around him within the environment.' And it becomes his own
personality. He is very competitive; he is aiming high all the time; he is so macho; he shows
his strong façade 'but in it there are doubts in himself and prone to act without thinking.'

xxx   xxx   xxx
 "Dr. Pajarillo emphasized that 'even though without the presence of the precipator (sic) or the
one who administered the battering, that re-experiencing of the trauma occurred (sic)
because the individual cannot control it. It will just come up in her mind or in his mind.'

xxx   xxx   xxx

"Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to defend
themselves, and 'primarily with knives. Usually pointed weapons or any weapon that is
available in the immediate surrounding or in a hospital x x x because that abound in the
household.' He said a victim resorts to weapons when she has 'reached the lowest rock
bottom of her life and there is no other recourse left on her but to act decisively.'

xxx   xxx   xxx

"Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview he conducted
for two (2) hours and seventeen (17) minutes. He used the psychological evaluation and
social case studies as a help in forming his diagnosis. He came out with a Psychiatric
Report, dated 22 January 2001.

xxx   xxx   xxx

"On cross-examination by the private prosecutor, Dr. Pajarillo said that at the time she killed
her husband Marivic'c mental condition was that she was 're-experiencing the trauma.' He
said 'that we are trying to explain scientifically that the re-experiencing of the trauma is not
controlled by Marivic. It will just come in flashes and probably at that point in time that things
happened when the re-experiencing of the trauma flashed in her mind.' At the time he
interviewed Marivic 'she was more subdued, she was not super alert anymore x x x she is
mentally stress (sic) because of the predicament she is involved.'

xxx   xxx   xxx

"20. No rebuttal evidence or testimony was presented by either the private or the public
prosecutor. Thus, in accord with the Resolution of this Honorable Court, the records of the
partially re-opened trial a quo were elevated." 9

Ruling of the Trial Court

Finding the proffered theory of self-defense untenable, the RTC gave credence to the prosecution
evidence that appellant had killed the deceased while he was in bed sleeping. Further, the trial court
appreciated the generic aggravating circumstance of treachery, because Ben Genosa was
supposedly defenseless when he was killed -- lying in bed asleep when Marivic smashed him with a
pipe at the back of his head.

The capital penalty having been imposed, the case was elevated to this Court for automatic review.

Supervening Circumstances

On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this Court allow (1) the
exhumation of Ben Genosa and the reexamination of the cause of his death; (2) the examination of
appellant by qualified psychologists and psychiatrists to determine her state of mind at the time she
had killed her spouse; and (3) the inclusion of the said experts' reports in the records of the case for
purposes of the automatic review or, in the alternative, a partial reopening of the case for the lower
court to admit the experts' testimonies.

On September 29, 2000, this Court issued a Resolution granting in part appellant's Motion,
remanding the case to the trial court for the reception of expert psychological and/or psychiatric
opinion on the "battered woman syndrome" plea; and requiring the lower court to report thereafter to
this Court the proceedings taken as well as to submit copies of the TSN and additional evidence, if
any.

Acting on the Court's Resolution, the trial judge authorized the examination of Marivic by two clinical
psychologists, Drs. Natividad Dayan and Alfredo Pajarillo, supposedly experts on domestic
10  11 

violence. Their testimonies, along with their documentary evidence, were then presented to and
admitted by the lower court before finally being submitted to this Court to form part of the records of
the case.12

The Issues

Appellant assigns the following alleged errors of the trial court for this Court's consideration:

"1. The trial court gravely erred in promulgating an obviously hasty decision without reflecting
on the evidence adduced as to self-defense.

"2. The trial court gravely erred in finding as a fact that Ben and Marivic Genosa were legally
married and that she was therefore liable for parricide.

"3. The trial court gravely erred finding the cause of death to be by beating with a pipe.

"4. The trial court gravely erred in ignoring and disregarding evidence adduced from impartial
and unbiased witnesses that Ben Genosa was a drunk, a gambler, a womanizer and wife-
beater; and further gravely erred in concluding that Ben Genosa was a battered husband.

"5. The trial court gravely erred in not requiring testimony from the children of Marivic
Genosa.

"6. The trial court gravely erred in concluding that Marivic's flight to Manila and her
subsequent apologies were indicia of guilt, instead of a clear attempt to save the life of her
unborn child.

"7. The trial court gravely erred in concluding that there was an aggravating circumstance of
treachery.

"8. The trial court gravely erred in refusing to re-evaluate the traditional elements in
determining the existence of self-defense and defense of foetus in this case, thereby
erroneously convicting Marivic Genosa of the crime of parricide and condemning her to the
ultimate penalty of death."13

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

The Court's Ruling

The appeal is partly meritorious.

Collateral Factual Issues

The first six assigned errors raised by appellant are factual in nature, if not collateral to the resolution
of the principal issues. As consistently held by this Court, the findings of the trial court on the
credibility of witnesses and their testimonies are entitled to a high degree of respect and will not be
disturbed on appeal in the absence of any showing that the trial judge gravely abused his discretion
or overlooked, misunderstood or misapplied material facts or circumstances of weight and substance
that could affect the outcome of the case. 14

In appellant's first six assigned items, we find no grave abuse of discretion, reversible error or
misappreciation of material facts that would reverse or modify the trial court's disposition of the case.
In any event, we will now briefly dispose of these alleged errors of the trial court.

First, we do not agree that the lower court promulgated "an obviously hasty decision without
reflecting on the evidence adduced as to self-defense." We note that in his 17-page Decision, Judge
Fortunito L. Madrona summarized the testimonies of both the prosecution and the defense
witnesses and -- on the basis of those and of the documentary evidence on record -- made his
evaluation, findings and conclusions. He wrote a 3-page discourse assessing the testimony and the
self-defense theory of the accused. While she, or even this Court, may not agree with the trial
judge's conclusions, we cannot peremptorily conclude, absent substantial evidence, that he failed to
reflect on the evidence presented.

Neither do we find the appealed Decision to have been made in an "obviously hasty" manner. The
Information had been filed with the lower court on November 14, 1996. Thereafter, trial began and at
least 13 hearings were held for over a year. It took the trial judge about two months from the
conclusion of trial to promulgate his judgment. That he conducted the trial and resolved the case
with dispatch should not be taken against him, much less used to condemn him for being unduly
hasty. If at all, the dispatch with which he handled the case should be lauded. In any case, we find
his actions in substantial compliance with his constitutional obligation. 15

Second, the lower court did not err in finding as a fact that Ben Genosa and appellant had been
legally married, despite the non-presentation of their marriage contract. In People v. Malabago, this16 

Court held:

"The key element in parricide is the relationship of the offender with the victim. In the case of
parricide of a spouse, the best proof of the relationship between the accused and the
deceased is the marriage certificate. In the absence of a marriage certificate, however, oral
evidence of the fact of marriage may be considered by the trial court if such proof is not
objected to."

Two of the prosecution witnesses -- namely, the mother and the brother of appellant's deceased
spouse -- attested in court that Ben had been married to Marivic. The defense raised no objection to
17 

these testimonies. Moreover, during her direct examination, appellant herself made a judicial
admission of her marriage to Ben. Axiomatic is the rule that a judicial admission is conclusive upon
18 

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. Other than merely attacking the non-
19 

presentation of the marriage contract, the defense offered no proof that the admission made by
appellant in court as to the fact of her marriage to the deceased was made through a palpable
mistake.
Third, under the circumstances of this case, the specific or direct cause of Ben's death -- whether by
a gunshot or by beating with a pipe -- has no legal consequence. As the Court elucidated in its
September 29, 2000 Resolution, "[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 victim's death." Determining which of these admitted acts caused the
death is not dispositive of the guilt or defense of appellant.

Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben was a drunk,
gambler, womanizer and wife-beater. Until this case came to us for automatic review, appellant had
not raised the novel defense of "battered woman syndrome," for which such evidence may have
been relevant. Her theory of self-defense was then the crucial issue before the trial court. As will be
discussed shortly, the legal requisites of self-defense under prevailing jurisprudence ostensibly
appear inconsistent with the surrounding facts that led to the death of the victim. Hence, his personal
character, especially his past behavior, did not constitute vital evidence at the time.

Fifth, the trial court surely committed no error in not requiring testimony from appellant's children. As
correctly elucidated by the solicitor general, all criminal actions are prosecuted under the direction
and control of the public prosecutor, in whom lies the discretion to determine which witnesses and
evidence are necessary to present. As the former further points out, neither the trial court nor the
20 

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 court's appreciation of these circumstances
has little bearing on the final resolution of the case.

First Legal Issue:

Self-Defense and Defense of a Fetus

Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes self-defense and/or
defense of her unborn child. When the accused admits killing the victim, it is incumbent upon her to
prove any claimed justifying circumstance by clear and convincing evidence. Well-settled is the rule
21 

that in criminal cases, self-defense (and similarly, defense of a stranger or third person) shifts the
burden of proof from the prosecution to the defense. 22

The Battered Woman Syndrome

In claiming self-defense, appellant raises the novel theory of the battered woman syndrome. While
new in Philippine jurisprudence, the concept has been recognized in foreign jurisdictions as a form of
self-defense or, at the least, incomplete self-defense. By appreciating evidence that a victim or
23 

defendant is afflicted with the syndrome, foreign courts convey their "understanding of the justifiably
fearful state of mind of a person who has been cyclically abused and controlled over a period of
time."24

A battered woman has been defined as a woman "who is repeatedly subjected to any forceful
physical or psychological behavior by a man in order to coerce her to do something he wants her to
do without concern for her rights. Battered women include wives or women in any form of intimate
relationship with men. Furthermore, in order to be classified as a battered woman, the couple must
go through the battering cycle at least twice. Any woman may find herself in an abusive relationship
with a man once. If it occurs a second time, and she remains in the situation, she is defined as a
battered woman." 25

Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs about
the home, the family and the female sex role; emotional dependence upon the dominant male; the
tendency to accept responsibility for the batterer's actions; and false hopes that the relationship will
improve. 26

More graphically, the battered woman syndrome is characterized by the so-called "cycle of
violence," which has three phases: (1) the tension-building phase; (2) the acute battering incident;
27 

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 woman's psyche. In this

phase, she and her batterer are indeed emotionally dependent on each other -- she for his nurturant
behavior, he for her forgiveness. Underneath this miserable cycle of "tension, violence and
forgiveness," each partner may believe that it is better to die than to be separated. Neither one may
really feel independent, capable of functioning without the other. 31

History of Abuse
in the Present Case

To show the history of violence inflicted upon appellant, the defense presented several witnesses.
She herself described her heart-rending experience as follows:

"ATTY. TABUCANON

Q How did you describe your marriage with Ben Genosa?

A In the first year, I lived with him happily but in the subsequent year he was cruel to me and
a behavior of habitual drinker.

Q You said that in the subsequent year of your marriage, your husband was abusive to you
and cruel. In what way was this abusive and cruelty manifested to you?

A He always provoke me in everything, he always slap me and sometimes he pinned me

down on the bed and sometimes beat me.

Q How many times did this happen?

A Several times already.

Q What did you do when these things happen to you?

A I went away to my mother and I ran to my father and we separate each other.

Q What was the action of Ben Genosa towards you leaving home?

A He is following me, after that he sought after me.

Q What will happen when he follow you?

A He said he changed, he asked for forgiveness and I was convinced and after that I go to
him and he said 'sorry'.

Q During those times that you were the recipient of such cruelty and abusive behavior by
your husband, were you able to see a doctor?

A Yes, sir.
 Q Who are these doctors?

A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.

xxx   xxx   xxx

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.

xxx   xxx   xxx

[Court] /to the witness

Q How frequent was the alleged cruelty that you said?

A Everytime he got drunk.

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

A Everytime he got drunk.

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

A Three times a week.

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

A Not necessarily that he would beat me but sometimes he will just quarrel me."  32

Referring to his "Out-Patient Chart" on Marivic Genosa at the Philphos Hospital, Dr. Dino D. Caing
33 

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?

A Yes, sir.

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

A I did.

Q Will you please read the physical findings together with the dates for the record.

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

2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area, pain and contusion
(R) breast. Attending physician: Dr. Canora;

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

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

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?

A Abrasion is a skin wound usually when it comes in contact with something rough
substance if force is applied.

Q What is meant by furuncle axilla?

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

Q What is meant by pain mastitis secondary to trauma?

A So, in this 4th episode of physical injuries there is an inflammation of left breast. So, [pain]
meaning there is tenderness. When your breast is traumatized, there is tenderness pain.

Q So, these are objective physical injuries. Doctor?

xxx   xxx   xxx

Q Were you able to talk with the patient?

A Yes, sir.

Q What did she tell you?

A As a doctor-patient relationship, we need to know the cause of these injuries. And she told
me that it was done to her by her husband.

Q You mean, Ben Genosa?

A Yes, sir.

xxx   xxx   xxx

ATTY. TABUCANON:

Q By the way Doctor, were you able to physical examine the accused sometime in the month
of November, 1995 when this incident happened?

A As per record, yes.

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?

A No, she was admitted for hypertension headache which complicates her pregnancy.

Q When you said admitted, meaning she was confined?

A Yes, sir.
Q For how many days?

A One day.

Q Where?

A At PHILPHOS Hospital.

xxx   xxx   xxx

Q Lets go back to the clinical history of Marivic Genosa. You said that you were able to
examine her personally on November 6, 1995 and she was 8 months pregnant.

What is this all about?

A Because she has this problem of tension headache secondary to hypertension and I think I
have a record here, also the same period from 1989 to 1995, she had a consultation for
twenty-three (23) times.

Q For what?

A Tension headache.

Q Can we say that specially during the latter consultation, that the patient had hypertension?

A The patient definitely had hypertension. It was refractory to our treatment. She does not
response when the medication was given to her, because tension headache is more or less
stress related and emotional in nature.

Q What did you deduce of tension headache when you said is emotional in nature?

A From what I deduced as part of our physical examination of the patient is the family history
in line of giving the root cause of what is causing this disease. So, from the moment you ask
to the patient all comes from the domestic problem.

Q You mean problem in her household?

A Probably.

Q Can family trouble cause elevation of blood pressure, Doctor?

A Yes, if it is emotionally related and stressful it can cause increases in hypertension which
is unfortunately does not response to the medication.

Q In November 6, 1995, the date of the incident, did you take the blood pressure of the
accused?

A On November 6, 1995 consultation, the blood pressure was 180/120.

Q Is this considered hypertension?

 A Yes, sir, severe.

Q Considering that she was 8 months pregnant, you mean this is dangerous level of blood
pressure?

A It was dangerous to the child or to the fetus." 

34

Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in Isabel, Leyte,
testified that he had seen the couple quarreling several times; and that on some occasions Marivic
would run to him with bruises, confiding that the injuries were inflicted upon her by Ben.
35

Ecel Arano also testified that for a number of times she had been asked by Marivic to sleep at the
36 

Genosa house, because the latter feared that Ben would come home drunk and hurt her. On one
occasion that Ecel did sleep over, she was awakened about ten o'clock at night, because the couple
"were very noisy … and I heard something was broken like a vase." Then Marivic came running into
Ecel's room and locked the door. Ben showed up by the window grill atop a chair, scaring them with
a knife.

On the afternoon of November 15, 1995, Marivic again asked her help -- this time to find Ben -- but
they were unable to. They returned to the Genosa home, where they found him already drunk. Again
afraid that he might hurt her, Marivic asked her to sleep at their house. Seeing his state of
drunkenness, Ecel hesitated; and when she heard the couple start arguing, she decided to leave.

On that same night that culminated in the death of Ben Genosa, at least three other witnesses saw
or heard the couple quarreling. Marivic relates in detail the following backdrop of the fateful night
37 

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 o'clock.

Q What happened when you arrived in your residence?

A When I arrived home with my cousin Ecel whom I requested to sleep with me at that time
because I had fears that he was again drunk and I was worried that he would again beat me
so I requested my cousin to sleep with me, but she resisted because she had fears that the
same thing will happen again last year.

Q Who was this cousin of yours who you requested to sleep with you?

A Ecel Araño, the one who testified.

Q Did Ecel sleep with you in your house on that evening?

A 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 What's the name of the baby you were carrying at that time?

A Marie Bianca.

Q What time were you able to meet personally your husband?

A Yes, sir.
Q What time?

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

Q Will you tell this Court what was his disposition?

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

Q What was he yelling all about?

A His usual attitude when he got drunk.

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

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

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

A He was angry at me because I was following x x x him, looking for him. I was just worried
he might be overly drunk and he would beat me again.

Q You said that he was yelling at you, what else, did he do to you if any?

A He was nagging at me at that time and I just ignore him because I want to avoid trouble for
fear that he will beat me again. Perhaps he was disappointed because I just ignore him of his
provocation and he switch off the light and I said to him, 'why did you switch off the light
when the children were there.' At that time I was also attending to my children who were
doing their assignments. He was angry with me for not answering his challenge, so he went
to the kitchen and [got] a bolo and cut the antenna wire to stop me from watching television.

Q What did he do with the bolo?

A He cut the antenna wire to keep me from watching T.V.

Q What else happened after he cut the wire?

A He switch off the light and the children were shouting because they were scared and he
was already holding the bolo.

Q How do you described this bolo?

A 1 1/2 feet.

Q What was the bolo used for usually?

A For chopping meat.

Q You said the children were scared, what else happened as Ben was carrying that bolo?
A He was about to attack me so I run to the room.

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

A When I attempt to run he held my hands and he whirled me and I fell to the bedside.

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

A I screamed for help and then he left.

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

A Yes, sir.

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

A Outside perhaps to drink more.

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

A I packed all his clothes.

Q What was your reason in packing his clothes?

A I wanted him to leave us.

Q During this time, where were your children, what were their reactions?

A After a couple of hours, he went back again and he got angry with me for packing his
clothes, then he dragged me again of the bedroom holding my neck.

Q You said that when Ben came back to your house, he dragged you? How did he drag
you?

COURT INTERPRETER:

The witness demonstrated to the Court by using her right hand flexed forcibly in her
front neck)

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept on shouting at me
that 'you might as well be killed so there will be nobody to nag me.'

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

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER:

(At this juncture the witness started crying).

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

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

COURT INTERPRETER:

(The witness at this juncture is crying intensely).

xxx   xxx   xxx

ATTY. TABUCANON:

Q Talking of drawer, is this drawer outside your room?

A Outside.

Q In what part of the house?

A Dining.

Q Where were the children during that time?

A My children were already asleep.

Q You mean they were inside the room?

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

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

Q Is it a flexible blade?

A It's a cutter.

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

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes, sir, that was the object used when he intimidate me."  38

In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert witness to assist it in
understanding the psyche of a battered person. She had met with Marivic Genosa for five sessions
totaling about seventeen hours. Based on their talks, the former briefly related the latter's ordeal to
the court a quo as follows:

"Q: What can you say, that you found Marivic as a battered wife? Could you in layman's term
describe to this Court what her life was like as said to you?

A: What I remember happened then was it was more than ten years, that she was suffering
emotional anguish. There were a lot of instances of abuses, to emotional abuse, to verbal
abuse and to physical abuse. The husband had a very meager income, she was the one
who was practically the bread earner of the family. The husband was involved in a lot of
vices, going out with barkadas, drinking, even womanizing being involved in cockfight and
going home very angry and which will trigger a lot of physical abuse. She also had the
experience a lot of taunting from the husband for the reason that the husband even accused
her of infidelity, the husband was saying that the child she was carrying was not his own. So
she was very angry, she was at the same time very depressed because she was also aware,
almost like living in purgatory or even hell when it was happening day in and day out."  39

In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but wittingly or unwittingly
put forward, additional supporting evidence as shown below:

"Q In your first encounter with the appellant in this case in 1999, where you talked to her
about three hours, what was the most relevant information did you gather?

A The most relevant information was the tragedy that happened. The most important
information were escalating abuses that she had experienced during her marital life.

Q Before you met her in 1999 for three hours, we presume that you already knew of the facts
of the case or at least you have substantial knowledge of the facts of the case?
 A I believe I had an idea of the case, but I do not know whether I can consider them as
substantial.

xxx   xxx   xxx

Q Did you gather an information from Marivic that on the side of her husband they were fond
of battering their wives?

A I also heard that from her?

Q You heard that from her?

A Yes, sir.

Q Did you ask for a complete example who are the relatives of her husband that were fond of
battering their wives?

A What I remember that there were brothers of her husband who are also battering their
wives.

Q Did she not inform you that there was an instance that she stayed in a hotel in Ormoc
where her husband followed her and battered [her] several times in that room?

A She told me about that.

Q Did she inform you in what hotel in Ormoc?

A Sir, I could not remember but I was told that she was battered in that room.

Q Several times in that room?

A Yes, sir. What I remember was that there is no problem about being battered, it really
happened.

Q Being an expert witness, our jurisprudence is not complete on saying this matter. I think
that is the first time that we have this in the Philippines, what is your opinion?

A Sir, my opinion is, she is really a battered wife and in this kind happened, it was really a
self-defense. I also believe that there had been provocation and I also believe that she
became a disordered person. She had to suffer anxiety reaction because of all the battering
that happened and so she became an abnormal person who had lost she's not during the
time and that is why it happened because of all the physical battering, emotional battering,
all the psychological abuses that she had experienced from her husband.

Q I do believe that she is a battered wife. Was she extremely battered?

A Sir, it is an extreme form of battering. Yes. 40

Parenthetically, the credibility of appellant was demonstrated as follows:

 "Q And you also said that you administered [the] objective personality test, what x x x [is this]
all about?

A The objective personality test is the Millon Clinical Multiaxial Inventory. The purpose of that
test is to find out about the lying prone[ne]ss of the person.

Q What do you mean by that?

A Meaning, am I dealing with a client who is telling me the truth, or is she someone who can
exaggerate or x x x [will] tell a lie[?]

Q And what did you discover on the basis of this objective personality test?

A She was a person who passed the honesty test. Meaning she is a person that I can trust.
That the data that I'm gathering from her are the truth."41

The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on his Psychiatric
Report, which was based on his interview and examination of Marivic Genosa. The Report said that
42 

during the first three years of her marriage to Ben, everything looked good -- the atmosphere was
fine, normal and happy -- until "Ben started to be attracted to other girls and was also enticed in[to]
gambling[,] especially cockfighting. x x x. At the same time Ben was often joining his barkada in
drinking sprees."

The drinking sprees of Ben greatly changed the attitude he showed toward his family, particularly to
his wife. The Report continued: "At first, it was verbal and emotional abuses but as time passed, he
became physically abusive. Marivic claimed that the viciousness of her husband was progressive
every time he got drunk. It was a painful ordeal Marivic had to anticipate whenever she suspected
that her husband went for a drinking [spree]. They had been married for twelve years[;] and
practically more than eight years, she was battered and maltreated relentlessly and mercilessly by
her husband whenever he was drunk."

Marivic sought the help of her mother-in-law, but her efforts were in vain. Further quoting from the
Report, "[s]he also sought the advice and help of close relatives and well-meaning friends in spite of
her feeling ashamed of what was happening to her. But incessant battering became more and more
frequent and more severe. x x x." 43

From the totality of evidence presented, there is indeed no doubt in the Court's mind that Appellant
Marivic Genosa was a severely abused person.

Effect of Battery on Appellant

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

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

The theory of BWS formulated by Lenore Walker, as well as her research on domestic violence, has
had a significant impact in the United States and the United Kingdom on the treatment and
prosecution of cases, in which a battered woman is charged with the killing of her violent partner.
The psychologist explains that the cyclical nature of the violence inflicted upon the battered woman
immobilizes the latter's "ability to act decisively in her own interests, making her feel trapped in the
relationship with no means of escape." In her years of research, Dr. Walker found that "the abuse
46 

often escalates at the point of separation and battered women are in greater danger of dying then." 47

Corroborating these research findings, Dra. Dayan said that "the battered woman usually has a very
low opinion of herself. She has x x x self-defeating and self-sacrificing characteristics. x x x [W]hen
the violence would happen, they usually think that they provoke[d] it, that they were the one[s] who
precipitated the violence[; that] they provoke[d] their spouse to be physically, verbally and even
sexually abusive to them." 48

According to Dra. Dayan, there are a lot of reasons why a battered woman does not readily leave an
abusive partner -- poverty, self-blame and guilt arising from the latter's belief that she provoked the
violence, that she has an obligation to keep the family intact at all cost for the sake of their children,
and that she is the only hope for her spouse to change. 49

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

Dr. Pajarillo explained that "overwhelming brutality, trauma" could result in posttraumatic stress
disorder, a form of "anxiety neurosis or neurologic anxietism." After being repeatedly and severely
51 

abused, battered persons "may believe that they are essentially helpless, lacking power to change
their situation. x x x [A]cute battering incidents can have the effect of stimulating the development of
coping responses to the trauma at the expense of the victim's ability to muster an active response to
try to escape further trauma. Furthermore, x x x the victim ceases to believe that anything she can
do will have a predictable positive effect." 52

A study conducted by Martin Seligman, a psychologist at the University of Pennsylvania, found that
53 

"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 individual's thoughts -- that proved all-important. He referred to this
phenomenon as "learned helplessness." "[T]he truth or facts of a situation turn out to be less
important than the individual's set of beliefs or perceptions concerning the situation. Battered women
don't attempt to leave the battering situation, even when it may seem to outsiders that escape is
possible, because they cannot predict their own safety; they believe that nothing they or anyone else
does will alter their terrible circumstances."
54

Thus, just as the battered woman believes that she is somehow responsible for the violent behavior
of her partner, she also believes that he is capable of killing her, and that there is no
escape. Battered women feel unsafe, suffer from pervasive anxiety, and usually fail to leave the
55 

relationship. Unless a shelter is available, she stays with her husband, not only because she
56 

typically lacks a means of self-support, but also because she fears that if she leaves she would be
found and hurt even more. 57

In the instant case, we meticulously scoured the records for specific evidence establishing that
appellant, due to the repeated abuse she had suffered from her spouse over a long period of time,
became afflicted with the battered woman syndrome. We, however, failed to find sufficient evidence
that would support such a conclusion. More specifically, we failed to find ample evidence that would
confirm the presence of the essential characteristics of BWS.

The defense fell short of proving all three phases of the "cycle of violence" supposedly
characterizing the relationship of Ben and Marivic Genosa. No doubt there were acute battering
incidents. In relating to the court a quo how the fatal incident that led to the death of Ben started,
Marivic perfectly described the 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 Ben's 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 mother's or father's house; that Ben would seek
58 

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 other's testimonies, which were culled
from their numerous studies of hundreds of actual cases. However, they failed to present in court the
factual experiences and thoughts that appellant had related to them -- if at all -- based on which they
concluded that she had BWS.

We emphasize that in criminal cases, all the elements of a modifying circumstance must be proven
in order to be appreciated. To repeat, the records lack supporting evidence that would establish all
the essentials of the battered woman syndrome as manifested specifically in the case of the
Genosas.

BWS as Self-Defense

In any event, the existence of the syndrome in a relationship does not in itself establish the legal
right of the woman to kill her abusive partner. Evidence must still be considered in the context of
self-defense. 59

From the expert opinions discussed earlier, the Court reckons further that crucial to the BWS
defense is the state of mind of the battered woman at the time of the offense -- she must have
60 

actually feared imminent harm from her batterer and honestly believed in the need to kill him in order
to save her life.

Settled in our jurisprudence, however, is the rule that the one who resorts to self-defense must face
a real threat on one's life; and the peril sought to be avoided must be imminent and actual, not
merely imaginary. Thus, the Revised Penal Code provides the following requisites and effect of self-
61 

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
63 

and unexpected attack -- or an imminent danger thereof -- on the life or safety of a person. In the
64 

present case, however, according to the testimony of Marivic herself, there was a sufficient time
interval between the unlawful aggression of Ben and her fatal attack upon him. She had already
been able to withdraw from his violent behavior and escape to their children's bedroom. During that
time, he apparently ceased his attack and went to bed. The reality or even the imminence of the
danger he posed had ended altogether. He was no longer in a position that presented an actual
threat on her life or safety.

Had Ben still been awaiting Marivic when she came out of their children's bedroom -- and based on
past violent incidents, there was a great probability that he would still have pursued her and inflicted
graver harm -- then, the imminence of the real threat upon her life would not have ceased yet.
Where the brutalized person is already suffering from BWS, further evidence of actual physical
assault at the time of the killing is not required. Incidents of domestic battery usually have a
predictable pattern. To require the battered person to await an obvious, deadly attack before she can
defend her life "would amount to sentencing her to 'murder by installment.'" Still, impending danger
65 

(based on the conduct of the victim in previous battering episodes) prior to the defendant's use of
deadly force must be shown. Threatening behavior or communication can satisfy the required
imminence of danger. Considering such circumstances and the existence of BWS, self-defense may
66 

be appreciated.
We reiterate the principle that aggression, if not continuous, does not warrant self-defense. In the
67 

absence of such aggression, there can be no self-defense -- complete or incomplete -- on the part of
the victim. Thus, Marivic's killing of Ben was not completely justified under the circumstances.
68 

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. Expounding thereon, he said:
71 

"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....

xxx   xxx   xxx

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 and 10 of Article 13 of the Revised Penal Code, this
74  75 

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. To appreciate this circumstance, the following requisites should concur: (1) there
77 

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. His abusive and violent acts, an
79 

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. Pajarillo's
testimony that with "neurotic anxiety" -- a psychological effect on a victim of "overwhelming brutality
80 

[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.

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

Second Legal Issue:

Treachery

There is treachery when one commits any of the crimes against persons by employing means,
methods or forms in the execution thereof without risk to oneself arising from the defense that the
offended party might make. In order to qualify an act as treacherous, the circumstances invoked
81 

must be proven as indubitably as the killing itself; they cannot be deduced from mere inferences, or
conjectures, which have no place in the appreciation of evidence. Because of the gravity of the
82 

resulting offense, treachery must be proved as conclusively as the killing itself.83

Ruling that treachery was present in the instant case, the trial court imposed the penalty of death
upon appellant. It inferred this qualifying circumstances merely from the fact that the lifeless body of
Ben had been found lying in bed with an "open, depressed, circular" fracture located at the back of
his head. As to exactly how and when he had been fatally attacked, however, the prosecution failed
to establish indubitably. Only the following testimony of appellant leads us to the events surrounding
his death:

"Q You said that when Ben came back to your house, he dragged you? How did he drag
you?
COURT:

The witness demonstrated to the Court by using her right hand flexed forcibly in her
front neck)

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept on shouting at me
that 'you might as well be killed so there will be nobody to nag me'

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

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER

(At this juncture the witness started crying)

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

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

COURT INTERPRETER

(The witness at this juncture is crying intensely).

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

A Three (3) inches long and ½ inch wide.

Q It is a flexible blade?

A It's a cutter.

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

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

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

xxx   xxx   xxx

ATTY. TABUCANON:

Q You said that this blade fell from his grip, is it correct?

A Yes, because I smashed him.

Q What happened?

A Ben tried to pick-up the wallet and the blade, I 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.

COURT INTERPRETER:

(Upon the answer of the witness getting the pipe and smashed him, the witness at
the same time pointed at the back of her neck or the nape).

ATTY. TABUCANON:

Q You said you went to the room, what else happened?

 A Considering all the physical sufferings that I've been through with him, I took pity on myself
and I felt I was about to die also because of my blood pressure and the baby, so I got that
gun and I shot him.

COURT

/to Atty. Tabucanon

Q You shot him?

A Yes, I distorted the drawer." 84

The above testimony is insufficient to establish the presence of treachery. There is no showing of the
victim's position relative to appellant's 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. There is no
86 

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

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 of the same Code. The penalty of reclusion temporal in its
88  89 

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. Under the Indeterminate Sentence Law, the
90 

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

Epilogue

Being a novel concept in our jurisprudence, the battered woman syndrome was neither easy nor
simple to analyze and recognize vis-à-vis the given set of facts in the present case. The Court
agonized on how to apply the theory as a modern-day reality. It took great effort beyond the normal
manner in which decisions are made -- on the basis of existing law and jurisprudence applicable to
the proven facts. To give a just and proper resolution of the case, it endeavored to take a good look
at studies conducted here and abroad in order to understand the intricacies of the syndrome and the
distinct personality of the chronically abused person. Certainly, the Court has learned much. And
definitely, the solicitor general and appellant's counsel, Atty. Katrina Legarda, have helped it in such
learning process.

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

The Court, however, is not discounting the possibility of self-defense arising from the battered
woman syndrome. We now sum up our main points. First, each of the phases of the cycle of
violence must be proven to have characterized at least two battering episodes between the appellant
and her intimate partner. Second, the final acute battering episode preceding the killing of the
batterer must have produced in the battered person's mind an actual fear of an imminent harm from
her batterer and an honest belief that she needed to use force in order to save her life. Third, at the
time of the killing, the batterer must have posed probable -- not necessarily immediate and actual --
grave harm to the accused, based on the history of violence perpetrated by the former against the
latter. Taken altogether, these circumstances could satisfy the requisites of self-defense. Under the
existing facts of the present case, however, not all of these elements were duly established.

WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED.

However, there being two (2) mitigating circumstances and no aggravating circumstance attending
her commission of the offense, her penalty is 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.

SECOND DIVISION

G.R. No. 216021, March 02, 2016

SOLOMON VERDADERO Y GALERA, Petitioner, v. PEOPLE OF THE

PHILIPPINES, Respondent.

DECISION
 MENDOZA, J.:

The expectations of a person possessed with full control of his faculties differ from one
who is totally deprived thereof and is unable to exercise sufficient restraint on his.
Thus, it is but reasonable that the actions made by the latter be measured under a
lesser stringent standard than that imposed on those who have complete dominion over
their mind, body and spirit.
This petition for review on certiorari seeks to reverse and set aside the July 10, 2014
Decision1 and the December 15, 2014 Resolution2 of the Court of Appeals (CA) in CA-
G.R. CR No. 35894 which affirmed the May 30, 2013 Judgment 3 of the Regional Trial
Court, Branch 03, Tuguegarao City (RTC) in Criminal Case No. 13283, finding accused
Solomon Verdadero y Galera (Verdadero) guilty beyond reasonable doubt of the crime
of Homicide, defined and penalized under Article 249 of the Revised Penal Code (RPC).

The Facts

In an Information,4 dated September 9, 2009, Verdadero was charged with the crime of

murder for killing Romeo B. Plata (Romeo), the accusatory portion of which reads:
chanRoblesvirtualLawlibrary

That on or about March 12, 2009, in the municipality of Baggao, Province of Cagayan,
and within the jurisdiction of this Honorable Court, the said accused SOLOMON
VERDADERO armed with a Rambo knife, with intent to kill, evident premeditation and
with treachery, did then and there wilfully, unlawfully and feloniously attack, assault
and stab ROMEO B. PLATA, thereby inflicting upon him stab wounds on the different
parts of his body which caused his death.

Contrary to law.5 ChanRoblesVirtualawlibrary

On June 3, 2011, Verdadero was arraigned and pleaded "Not Guilty." During the pre-
trial, he invoked the defense of insanity but did not consent to a reverse trial.
Thereafter, trial ensued.6

Evidence of the Prosecution

The evidence of the prosecution tended to establish the following:

On March 12, 2009, at around 3:00 o'clock in the afternoon, Maynard Plata (Maynard)
and his father Romeo were at the Baggao Police Station. Together with Ronnie Elaydo
(Ronnie), they went there to report that Verdadero had stolen the fan belt of their
irrigation pump.7

After a confrontation with Verdadero at the police station, the three men made their
way home on a tricycle but stopped at a drugstore as Maynard intended to buy some
baby supplies. Romeo proceeded towards a store near the drugstore while Ronnie
stayed inside the tricycle. From the drug store, Maynard saw Verdadero stabbing
Romeo, after he was alerted by the shouts of Ronnie.8

Verdadero stabbed Romeo on the left side of the latter's upper back with the use of a
Rambo knife. He again struck Romeo's upper back, just below the right shoulder.
Maynard tried to help his father but Verdadero attempted to attack him as well. He
defended himself using a small stool, which he used to hit Verdadero in the chest. 9
Meanwhile, Ronnie ran towards the police station to seek assistance. The responding
police officers arrested Verdadero, while Maynard and Ronnie brought Romeo to a clinic
but were advised to bring him to the Cagayan Valley Medical Center (CVMC). Romeo,
however, died upon arrival at the CVMC. Based on the Post-Mortem Examination
Report, his cause of death was cardiopulmonary arrest secondary to severe hemorrhage
secondary to multiple stab wounds and hack wounds. 10

Evidence of the Defense

The evidence for the defense did not refute the material allegations but revolved around
Verdadero's alleged insanity, to wit:

Since 1999, Verdadero had been an outpatient of CVMCs Psychiatric Department as he

claimed to hear strange voices and had difficulty in sleeping. Sometime in 2001, Miriam
Verdadero (Miriam), Verdadero's sister, again brought him to the Psychiatric
Department of CVMC after he became violent and started throwing stones at a tricycle
with a child on board. Verdadero was confined for two (2) months and was diagnosed to
be suffering from mental depression.

On July 21, 2003, he was diagnosed with schizophrenia and was given medications to
address his mental illness. Verdadero would irregularly consult with his doctors as he
had a lifelong chronic disease. Then, in 2009, he was again confined for the fourth (4 th)
time at CVMC due to a relapse.

On March 12, 2009, Miriam proceeded to CVMC, after she heard of the stabbing
incident. There, she saw Verdadero removing the IV tubes connected to his body and,
thereafter, locked himself inside the comfort room. Eventually, Verdadero was given
sedatives and was transferred to an isolation room after Miriam informed the nurses of
the incident.11

On March 20, 2009, he was transferred to the Psychiatry Department after Dr. Leonor
Andres-Juliana (Dr. Andres-Juliana) had diagnosed that he was having difficulty
sleeping. Dr. Andres-Juliana opined that Verdadero suffered a relapse, as evidenced by
his violent behaviour.

Acting on the January 4, 2011 Order of the RTC, Dr. Ethel Maureen Pagaddu (Dr.
Pagaddu) conducted a mental examination on Verdadero. She confirmed that as early
as 1999, he was already brought to CVMC and that he was diagnosed with
schizophrenia on July 21, 2003. Dr. Pagaddu agreed with Dr. Andres-Juliana that
Verdadero had suffered a relapse on the day of the stabbing incident. 12

The RTC Ruling

On May 30, 2013, the RTC rendered a decision finding Verdadero guilty for the crime of
homicide. The dispositive portion of which reads:
chanRoblesvirtualLawlibrary

WHEREFORE, in light of the foregoing, this Court finds the accused SOLOMON

VERDADERO y Galera GUILTY beyond reasonable doubt of the felony of Homicide,
defined and penalized under Article 249 of the Revised Penal Code, as amended, and
hereby sentences him:
1. To suffer an indeterminate prison sentence ranging from twelve (12) years of prision
mayor [as maximum] as minimum to seventeen (17) years and four (4) months of
reclusion temporal medium, as maximum; and,

2. To pay the heirs of Romeo Plata the amounts of:

    a. P50,000.00 as death indemnity;

    b. P50,000.00 as moral damages and
    c. P30,000.00 as stipulated actual damages; and,

3. To pay the costs.

SO ORDERED.13 ChanRoblesVirtualawlibrary

The RTC ruled that the crime committed was only homicide, as the prosecution failed to
establish the presence of treachery and evident premeditation to qualify the killing to
murder. The trial court, however, opined that Verdadero failed to establish insanity as
an exempting circumstance. The trial court posited that Verdadero was unsuccessful in
establishing that he was not in a lucid interval at the time he stabbed Romeo or that he
was completely of unsound mind prior to or coetaneous with the commission of the
crime.

Aggrieved, Verdadero appealed before the CA.

The CA Ruling

In its July 10, 2014 Decision, the CA upheld Verdadero's conviction of homicide. The
appellate court agreed that the defense was able to establish that Verdadero had a
history of schizophrenic attacks, but was unable to prove that he was not lucid at the
time of the commission of the offense. The decretal portion of the decision states:
chanRoblesvirtualLawlibrary

WHEREFORE, in view of the foregoing, the Appeal is DENIED. The Judgment, dated
May 30, 2013, rendered by the Regional Trial Court of Tuguegarao City, Branch 3 in
Criminal Case No. 13283, is AFFIRMED.

SO ORDERED.14 ChanRoblesVirtualawlibrary

Verdadero moved for reconsideration, but his motion was denied by the CA in its
resolution, dated December 15, 2014.

Hence, this present petition, raising the following

ISSUE

WHETHER THE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE

PETITIONER'S CONVICTION DESPITE THE FACT THAT HIS INSANITY AT THE
TIME OF THE INCIDENT WAS ESTABLISHED BY CLEAR AND CONVINCING
EVIDENCE.
Verdadero insists that he was able to fully support his defense of insanity. He claims
that Maynard even admitted that he was not in the proper state of mind when they
were at the police station before the stabbing took place. Further, it appeared that
Verdadero was having hallucinations after the stabbing incident as testified to by Dr.
Andres-Juliana. Verdadero notes that Dr. Pagaddu concluded that he had a relapse at
the time of the stabbing incident on March 12, 2009.
In its Comment,15 the Office of the Solicitor General (OSG) contended that the present
petition presented a question of fact, which could not be addressed in a petition for
review under Rule 45 of the Rules of Court. Moreover, it asserted that the CA did not
misapprehend the facts as the evidence presented failed to completely establish
Verdadero's insanity at the time of the stabbing.

In his Manifestation (in Lieu of Reply), 16 Verdadero indicated that he would no longer
file a reply as his petition for review already contained an exhaustive discussion of the
issues.

The Court's Ruling

The present petition primarily assails the conviction despite his defense of insanity.
Before delving into the merits of the case, a discussion of the procedural issue is in
order.

Only questions of law may be raised in a petition for review under Rule 45; Exceptions

The OSG argues that the Court should not entertain Verdadero's petition for review as it
principally revolves around the issue of his insanity — a question of fact which should
no longer be addressed in a petition for review. The Court disagrees.

Generally, questions of fact are beyond the ambit of a petition for review under Rule 45
of the Rules of Court as it is limited to reviewing only questions of law. The rule,
however, admits of exceptions wherein the Court expands the coverage of a petition for
review to include a resolution of questions of fact. In Laborte v. Pagsanjan Tourism
Consumers' Cooperative et al.,17 the Court reiterated the following exceptions to the
rule that only questions of law may be raised under Rule 45, to wit: (1) when the
findings are grounded entirely on speculations, surmises, or conjectures; (2) when the
inference made is manifestly mistaken, absurd, or impossible; (3) when there is a
grave abuse of discretion; (4) when the judgment is based on misappreciation of
facts; (5) when the findings of fact are conflicting; (6) when in making its findings, the
same are contrary to the admissions of both appellant and appellee; (7) when the
findings are contrary to those of the trial court; (8) when the findings are conclusions
without citation of specific evidence on which they are based; (9) when the facts set
forth in the petition as well as in the petitioner's main and reply briefs are not disputed
by the respondent; and (10) when the findings of fact are premised on the supposed
absence of evidence and contradicted by the evidence on record.

The present petition mainly delves into Verdadero's state of mind at the time of the
stabbing incident. Obviously, it is a question of fact, which, ordinarily is not entertained
by the Court in a petition for review. As will be discussed below, the Court,
nevertheless, finds that the circumstances in the case at bench warrant the application
of the exception rather than the rule.

Insanity must be present at the time the crime had been committed

To completely evade culpability, Verdadero raises insanity as a defense claiming that he

had suffered a relapse of his schizophrenia. Under Article 12 of the RPC, an imbecile or
an insane person is exempt from criminal liability, unless the latter had acted during a
lucid interval. The defense of insanity or imbecility must be clearly proved for there is a
presumption that the acts penalized by law are voluntary. 18

In the case at bench, it is undisputed that (1) as early as 1999, Verdadero was brought
to the Psychiatric Department of CVMC for treatment; (2) he was diagnosed with
depression in 2001; (3) he was diagnosed with schizophrenia on July 21, 2003; (4) he
was confined in the psychiatric ward sometime in 2009 due to a relapse; (5) he was in
and out of psychiatric care from the time of his first confinement in 1999 until the
stabbing incident; and (6) he was diagnosed to have suffered a relapse on March 20,
2009.

Thus, it is without question that he was suffering from schizophrenia and the only thing
left to be ascertained is whether he should be absolved from responsibility in killing
Romeo because of his mental state.

Schizophrenia is a chronic mental disorder characterized by inability to distinguish

between fantasy and reality, and often accompanied by hallucinations and
delusions.19 A showing that an accused is suffering from a mental disorder, however,
does not automatically exonerate him from the consequences of his act. Mere
abnormality of the mental faculties will not exclude imputability. 20

In People v. Florendo,21 the Court explained the standard in upholding insanity as an

exempting circumstance, to wit:
chanRoblesvirtualLawlibrary

Insanity under Art. 12, par. 1, of The Revised Penal Code exists when there is
a complete deprivation of intelligence in committing the act, i.e., appellant is
deprived of reason; he acts without the least discernment because of complete absence
of the power to discern; or, there is a total deprivation of freedom of the will. The onus
probandi rests upon him who invokes insanity as an exempting circumstance, and he
must prove it by clear and convincing evidence.

[Emphasis Supplied]

In People v. Isla,22 the Court elucidated that insanity must relate to the time
immediately preceding or simultaneous with the commission of the offense with which
the accused is charged. Otherwise, he must be adjudged guilty for the said offense. In
short, in order for the accused to be exempted from criminal liability under a plea of
insanity, he must categorically demonstrate that: (1) he was completely deprived of
intelligence because of his mental condition or illness; and (2) such complete
deprivation of intelligence must be manifest at the time or immediately before the
commission of the offense.

In raising the defense of insanity, Verdadero admits to the commission of the crime
because such defense is in the nature of a confession or avoidance. 23 As such, he is
duty bound to establish with certainty that he was completely deprived, not merely
diminished, of intelligence at the time of the commission of the crime. Failing which,
Verdadero should be criminally punished for impliedly admitting to have stabbed Romeo
to death.

Proving insanity is a tedious task for it requires an examination of the mental state of
the accused. In People v. Opuran24 the Court explained how one's insanity may be
established, to wit:
chanRoblesvirtualLawlibrary

Since insanity is a condition of the mind, it is not susceptible of the usual means of
proof. As no man can know what is going on in the mind of another, the state or
condition of a person's mind can only be measured and judged by his behavior. Thus,
the vagaries of the mind can only be known by outward acts, by means of which we
read the thoughts, motives, and emotions of a person, and then determine whether the
acts conform to the practice of people of sound mind.

Insanity is evinced by a deranged and perverted condition of the mental faculties which
is manifested in language and conduct. xxx

Establishing the insanity of an accused often requires opinion testimony which may be
given by a witness who is intimately acquainted with the accused; has rational basis to
conclude that the accused was insane based on his own perception; or is qualified as an
expert, such as a psychiatrist.

In the earlier case of People v. Austria,25 the Court elucidated that evidence of the
mental condition of the accused during a reasonable period before and after the
commission of the offense is material, to wit:

In order to ascertain a person's mental condition at the time of the act, it is permissible
to receive evidence of his mental condition during a reasonable period before and after.
Direct testimony is not required nor are specific acts of disagreement essential to
establish insanity as a defense. A person's mind can only be plumbed or fathomed by
external acts. Thereby his thoughts, motives and emotions may be evaluated to
determine whether his external acts conform to those of people of sound mind. To
prove insanity, clear and convincing circumstantial evidence would suffice.

Guided by the precepts laid out by the above-mentioned jurisprudence, the Court finds
that Verdadero sufficiently proved that he was insane at the time of the stabbing. Thus,
the Court takes a view different from that of the CA as the latter concluded that
Verdadero's insanity was not clearly proven.

It is true that there is no direct evidence to show Verdadero's mental state at the exact
moment the crime was committed. This, however, is not fatal to the finding that he was
insane. His insanity may still be shown by circumstances immediately before and after
the incident. Further, the expert opinion of the psychiatrist Dr. Pagaddu may also be
taken into account.

Dr. Pagaddu categorically testified that Verdadero was suffering a relapse at the time of
the stabbing incident. During her testimony, she stated as follows:

On direct examination

Atty. Tagaruma
Q: By the way what was the mental condition of the accused referred which involved
your diagnosis as a life long chronic disease?

Witness
A: The accused was diagnosed schizophrenia, sir.

Q: When for the first time Solomon Verdadero was diagnosed with schizophrenia?
A: It was on July 21, 2003, sir. xxx

Q: As an expert witness tell the Honorable Court if a person who has relapse of
schizophrenia could distinguish his act?
A: This mental disorder influence (sic) the impulse. It could at the time of the
commission of the crime that the impulse control and judgment of an individual was
affected sir.

Q: Could it be accurate to state that a person who has the relapse of schizophrenia
could not distinguish any act from right or wrong?
A: There is a possibility, sir.

Court
Q: Why did you say that Solomon Verdadero has the possibility of relapse upon
admission on March 19, 2009?
A: There was a period of relapse meaning the symptom was present and there must be
a remission if the symptom is abated, your Honor.

xxx

Atty. Tagaruma
Q: You have read for the record the report of Dr. Juliana on the alleged violent
behavior of Solomon Verdadero on March 12, 2009 which is the date of the
incident, as an expert psychiatrist is it possible that the violent behavior of
Solomon Verdadero on March 12, 2009 was the basis of Dr. Juliana in
diagnosing that the accused was in relapse upon admission on March 12,
2009?
A: Yes sir.

Q: Following the remark of scientific conclusion of Dr. Juliana, Dr. Janet

Taguinod and the conclusion made by you, is it also your conclusion that
Solomon Verdadero was in relapse on March 12, 2009 due to violent behavior?
A: Yes, sir.

On cross examination

Prosecutor Aquino

Q: But definitely during the disorder of the patient, the relapse would somewhat be
continued even when medications is administered to him?
A: The symptom is controlled although there is a circumstances (sic) that the patient
may have relapse (sic) even with medication, sir.

Q: If a continuous medication was undertaken by the accused-patient in this case could

that have a long effect on his mental condition?
A: Continuous medication could somehow control the symptom and not absolutely
eradicate the symptom.

Q: On March 12 , 2009 the accused-patient was on a lucid interval, in view of the

medication undertaken as of January 19, 2009?
A: It's haphazard, sir.

xxx

Court
Q: Madam witness what type of schizophrenia the accused was diagnosed?
A: Undifferentiated, your honor.26

[Emphases Supplied]
Dr. Paggadu, without any reservations, stated that Verdadero was suffering a relapse of
his schizophrenia at the time of the stabbing incident. In contrast, she was hesitant to
opine that Verdadero might have been in a lucid interval because of the medications
taken. Thus, it is reasonable to conclude, on the basis of the testimony of an expert
witness, that Verdadero was of unsound mind at the time he stabbed Romeo.

Further, the finding of Verdadero's insanity is supported by the observations made by

Maynard, a witness for the prosecution. In his testimony, Maynard gave his opinion on
Verdadero's behavior and appearance when they met at the police station, to wit:
chanRoblesvirtualLawlibrary

On cross examination

Atty. Tagurama
Q: Having made the report against Solomon Verdadero, do I (sic) correct to say that
you are familiar with Solomon Verdadero even before March 12, 2009?
A: Yes, sir.

Q: Tell us why you are familiar to him even prior to March 12, 2009?
A: We are neighbors, sir.

Q: You are immediate neighbors?

A: Yes, sir

Q: Since you are neighbors with Solomon Verdadero you see him almost a (sic) time?
A: Yes, sir. I saw him daily.

Q: When you see Solomon Verdadero daily you see his actuation?
A: Yes, sir.

xxx

Q: Sometimes he boxes when he is not in his proper mind, what aberrant behavior did
you observe from him?
A: That's the only thing I observed and sometimes he steal (sic), sir.

Q: For a long time that Solomon Verdadero is your neighbor does his relapse or what
you called not in his proper mind occurred often?
A: It occurred once in a while, sir.

Q: When you said it occurred once in a while, this relapse may occur once a week?
A: Yes, sir.

Q: Prior to March 12, 2009, when did you first observe that Solomon
Verdadero appears not in his proper mind?
A: He was not in his proper mind for a long time, sir.

Q: Maybe it could be 5 months before March 12, 2009?

A: Yes, sir.

xxx

Court
Q: You testified that you observed the accused not in his proper mind for the passed
(sic) years before this incident was he also violent like what happened on March 12,
2009?

Witness
A: Yes, your honor.

Q: When you went to the police station you allegedly reported the stolen fan belt do I
get you right that Solomon Verdadero was with you at the police station?
A: Yes, your honor.

Q: When he was with you at the police station what did you observe?
A: He was not again in his proper mind (sumro manen), your Honor.

xxx

Q: Can you describe his appearance?

A: His eyes was (sic) very sharp and reddish.

xxx

Q: As far as his appearance is concern (sic) do you remember his actuation or how he
was reacting?
A: Yes, your honor. He was somewhat drank (sic).

Q: You said that he was not on his proper mind for the passed (sic) years?
A: Yes, your honor.27

[Emphases Supplied]

Maynard was familiar with Verdadero as the latter was his neighbor for a long time. He
had observed that there were times that Verdadero appeared to be of unsound mind as
he would sometimes become violent. On the day of the stabbing incident, Maynard
perceived that Verdadero was again of unsound mind noting that he had reddish eyes
and appeared to be drunk. Moreover, he was immediately transferred to the psychiatry
department because of his impaired sleep and to control him from harming himself and
others.28

These circumstances are consistent with Dr. Paggadu's testimony that drinking wine,
poor sleep and violent behavior were among the symptoms of a relapse, the
same testimony that was used as basis for his previous diagnosis. 29 The evidence on
record supports the finding that Verdadero exhibited symptoms of a relapse of
schizophrenia at the time of the stabbing incident. Thus, Dr. Pagaddu reiterated Dr.
Andre-Juliana's conclusion that Verdadero was having a relapse of his illness on that
fateful day.

Further, on March 22, 2009, he was officially diagnosed to have suffered a relapse of
schizophrenia. Generally, evidence of insanity after the commission of the crime is
immaterial. It, however, may be appreciated and given weight if there is also proof of
abnormal behavior before or simultaneous to the crime.30

Indeed, the grant of absolution on the basis of insanity should be done with utmost
care and circumspection as the State must keep its guard against murderers seeking to
escape punishment through a general plea of insanity. 31 The circumstances in the case
at bench, however, do not indicate that the defense of insanity was merely used as a
convenient tool to evade culpability.

The Court notes that at the very first opportunity, Verdadero already raised the defense
of insanity and remained steadfast in asserting that he was deprived of intelligence at
the time of the commission of the offense. He no longer offered any denial or alibi and,
instead, consistently harped on his mental incapacity. Unlike in previous cases 32 where
the Court denied the defense of insanity as it was raised only when the initial defense of
alibi failed to prosper, Verdadero's alleged insanity was not a mere afterthought.

In exonerating Verdadero on the ground of insanity, the Court does not totally free him
from the responsibilities and consequences of his acts. Article 12(1) of the RPC
expressly states that "[w]hen an insane person has committed an act which the law
defines as a felony, the court shall order his confinement in one of the hospitals or
asylums established for persons thus afflicted, which he shall not be permitted to leave
without first obtaining the permission of the same court." Instead of incarceration,
Verdadero is to be confined in an institution where his mental condition may be
addressed so that he may again function as a member of society. He shall remain
confined therein until his attending physicians give a favorable recommendation for his
release.

Verdadero still liable for damages in spite of his exoneration

In appreciating insanity in favor of Verdadero, the Court absolves him from criminal
responsibility. He is, nevertheless, responsible to indemnify the heirs of Romeo for the
latter's death. An exempting circumstance, by its nature, admits that criminal and civil
liabilities exist, but the accused is freed from the criminal liability. 33
The amount of damages awarded, however, must be modified in order to conform to
recent jurisprudence.34 The P50,000.00 civil indemnity and P50,000.00 moral damages
awarded by the RTC must each be increased to P75,000.00. In addition, an interest at
the rate of six per cent (6%) per annum should be imposed on all damages awarded
computed from the finality of the decision until the same have been fully paid. chanrobleslaw

WHEREFORE, the Court grants the petition and ACQUITS accused-appellant Solomon

Verdadero y Galera of Homicide by reason of insanity. He is ordered confined at the
National Center for Mental Health for treatment and shall be released only upon order
of the Regional Trial Court acting on a recommendation from his attending physicians
from the institution.

He is also ordered to pay the heirs of Romeo B. Plata the amounts of P75,000.00 as
civil indemnity; P75,000.00 as moral damages; and P30,000.00 as stipulated actual
damages, plus interest on all damages awarded at the rate of 6% per annum from the
date of finality of this decision until the same shall have been fully paid.

SO ORDERED.

G.R. No. L-5418             February 12, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
CECILIO TAÑEDO, defendant-appellant.

O'Brien & De Witt, for appellant.

Office of the Solicitor-General Harvey, for appellee.

MORELAND, J.:

The defendant in this case was accused of the crime of murder committed, as alleged in the
information, as follows:

That on or about the 26th day of January of this year, the said accused, with the intention of
killing Feliciano Sanchez, invited him to hunt wild chickens, and, upon reaching the forest,
with premeditation shot him in the breast with a shotgun which destroyed the heart and killed
the said Sanchez, and afterwards, in order to hide the crime, buried the body of the
deceased in a well. The motive is unknown. The premeditation consists in that the accused
had prepared his plans to take the deceased to the forest, there to kill him, so that no one
could see it, and to bury him afterwards secretly in order that the crime should remain
unpunished.
The defendant was found guilty of homicide by the Court of First Instance of the Province of Tarlac
and sentenced to fourteen years eight months and one day of reclusion temporal, accessories,
indemnification and costs. The defendant appealed.

There is very little dispute about the facts in this case, in fact no dispute at all as to the important
facts. The accused was a landowner. On the morning of the 26th of January, 1909, he, with
Bernardino Tagampa, Casimiro Pascual, Valeriano Paulillo, and Juan Arellano, went to work on
a malecon or dam on his land. The defendant took with him a shotgun and a few shells, with the
intention to hunt wild chickens after he had set his laborers at work. He remained with his laborers
an hour or so and then went a short distance away across a stream to see how the alteration which
he had made in the malecon affected the flow of water from the rice filed on the other side of the
stream. He carried his shotgun with him across the stream. On the other side of the stream he met
the deceased, who, with his mother and uncle, had been living in a small shack for a month or so
during the rice-harvesting season. The accused asked the uncle of the deceased where he could
find a good place in which to hunt wild chickens. The uncle was lying on the floor in the interior of the
shack sick of fever. The deceased, a young man about 20 years of age, was working at something
under a manga tree a short distance from the shack. Although the accused directed his question to
the uncle inside of the shack, the deceased answered the question and pointed out in a general way
a portion of the forest near the edge of which stood the shack. There is some contradiction between
the testimony of the accused and the Government witnesses just at this point. The uncle of the
deceased testified that the boy and the accused invited each other mutually to hunt wild chickens
and that the accused accepted the invitation. The accused, however, testified that he did not invite
the deceased to go hunting with him, neither did the deceased go with him, but that he remained
under the manga tree "trying something." At any rate the accused went into the forest with his gun.
What took place there is unknown to anybody except the accused. Upon that subject he testified as
follows:

And after Feliciano Sanchez pointed out that place to me, that place where the wild chickens
were to be found, I proceeded to hunt, because, in the first place, if I could kill some wild
chickens we would have something to eat on that day. So when I arrived at that place I saw
a wild chickens and I shot him. And after I shot that chicken I heard a human cry. I picked up
the chicken and went near the place where I heard the noise, and after I saw that I had
wounded a man I went back toward the malecon, where my companions were working,
running back, and when I arrived there I left my shotgun behind or by a tree not far from
where my companions were working; and I called Bernardino Tagampa to tell him about the
occurrence, and to him I told of that occurence because he is my friend and besides that he
was a relative of the deceased, and when Tagampa heard of this he and myself went
together to see the dead body.

Only one shot was heard that morning and a chicken was killed by gunshot wound. Chicken feathers
were found in considerable qualities at the point where the chicken was shot and where the accident
occurred. The defendant within a few minutes after the accident went out of the woods to
the malecon where he had left his laborers at work, carrying the dead chicken with him. The
accused called Bernardino Tagampa, on of the laborers, to go with him and they disappeared for
some time. Tagampa says that they went a little way toward the woods and came back. The
accused says that they went to the place where the body of the deceased lay and removed it to a
place in the cogon grass where it would not be easily observed. It is certain, however, that the body
was concealed in the cogon grass. During the afternoon Tagampa left the malecon, where his fellow
laborers were working, probably to hunt for a place in which to hide the body. The rest of the
laborers saw the witness Yumul take the chicken which had been killed by the accused. He
delivered it to the wife of the accused, who testified that she received the chicken from Yumul and
that it had been killed by a gunshot wound. That evening the accused and Tagampa went together
to dispose of the body finally. They took it from the cogon grass where it lay concealed and carried it
about seventeen or eighteen hundred meters from the place where it had originally fallen, and buried
it in an old well, covering it with straw and earth and burning straw on top of the well for the purpose
of concealing it. Tagampa said that he helped the accused dispose of the body because he was
afraid of him, although he admits that the accused in no way threatened or sought to compel him to
do so. The defendant prior to the trial denied all knowledge of the death of the deceased or the
whereabouts of the body. On the trial, however, he confessed his participation in the death of the
deceased and told the story substantially as above.

So far as can be ascertained from the evidence the prior relations between the accused and the
deceased had been normal. The deceased was a tenant on land belonging to a relative of the
accused. There was no enmity and no unpleasant relations between them. No attempt was made to
show any. There appears to have been no motive whatever for the commission of the crime. The
Government has not attempted to show any. The only possible reason that the accused could have
for killing the deceased would be found in the fact of a sudden quarrel between them during the
hunt. That idea is wholly negative by the fact that the chicken and the man were shot at the same
time, there having been only one shot fired.

Article 1 of the Penal Code says:

Crimes or misdemeanors are voluntary acts and omissions punished by law.

Acts and omissions punished by law are always presumed to be voluntary unless the
contrary shall appear.

Article 8, subdivision 8, reads as follows:

He who, while performing a legal act with due care, causes some injury by mere accident
without liability or intention of causing it.

Section 57 of the Code of Criminal Procedure is as follows:

A defendant in a criminal action shall be presumed to be innocent until the contrary is

proved, and in case of a reasonable doubt that his guilt is satisfactorily shown he shall be
entitled to an acquittal.

The American doctrine is substantially the same. It is uniformly held that if life is taken by misfortune
or accident while in the performance of a lawful act executed with due care and without intention of
doing harm, there is no criminal liability. (Tidwell vs. State, 70 Ala., 33; State vs. Benham, 23 Ia.,
154, 92 Am. Dec., 417; Bertrong vs. State, 2 Tex. Ap., 160; Williamson vs. State, 2 Ohio C. C., 292;
U. S. vs. Meagher, 37 Fed. Rep., 875; U. S. vs. Castro, Fed. Cas., 14752; State vs. Legg, 3 L. R. A.,
N. S., 1152.)

In this case there is absolutely no evidence of negligence upon the part of the accused. Neither is
there any question that he was engaged in the commission of a lawful act when the accident
occurred. Neither is there any evidence of the intention of the accused to cause the death of the
deceased. The only thing in the case at all suspicious upon the part of the defendant are his
concealment and denial.

In the case of the State vs. Legg, above referred to, it is said (p.1165):

 Where accidental killing is relied upon as a defense, the accused is not required to prove
such a defense by a preponderance of the evidence, because there is a denial of intentional
killing, and the burden is upon the State to show that it was intentional, and if, from a
consideration of all the evidence, both that for the State and the prisoner, there is a
reasonable doubt as to whether or not the killing was accidental or intentional, the jury
should acquit. . . . But where accidental killing is relied upon, the prisoner admits the killing
but denies that it was intentional. Therefore, the State must show that it was intentional, and
it is clearly error to instruct the jury that the defendant must show that it was an accident by a
preponderance of the testimony, and instruction B in the Cross case was properly held to be
erroneous.

In 3 L. R. A., N. S., page 1163, it is said:

Evidence of misadventure gives rise to an important issue in a prosecution for homicide,

which must be submitted to the jury. And since a plea of misadventure is a denial of criminal
intent (or its equivalent) which constitutes an essential element in criminal homicide, to
warrant a conviction it must be negative by the prosecution beyond a reasonable doubt.

In support of such contention the author cites a number of cases.

We are of the opinion that the evidence is insufficient to support the judgment of conviction.

The judgment of conviction is, therefore, reversed, the defendant acquitted, and his discharge from
custody ordered, costs de oficio. So ordered.

G.R. No. 126021             March 3, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RENE SIAO, accused-appellant.

GONZAGA-REYES, J.:

Accused-appellant Rene Siao together with Reylan Gimena were charged before the Regional Trial
Court of the City of Cebu with the crime of rape committed as follows:

x x x           x x x          x x x

That on or about the 27th day of May, 1994, about 3:00 P.M., in the City of Cebu,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, conniving
and confederating together and mutually helping each other, with deliberate intent and with
force and intimidation upon person, did then and there willfully, unlawfully and feloniously
 have carnal knowledge with the undersigned, Estrella Raymundo, a minor, 14 years old,
against the latter's will.
1

Accused-appellant Rene Siao and Reylan Gimena pleaded "not guilty" to the charge. Hence, trial
proceeded in due course. After trial, the Regional Trial Court of the City of Cebu convicted accused-
appellant Rene Siao of the crime of rape as principal by induction and acquitted Reylan Gimena.
The dispositive portion of the decision rendered on March 29, 1996 reads:

WHEREFORE, in view of all the foregoing, judgment is hereby rendered finding accused
Rene Siao GUILTY beyond reasonable doubt as principal by induction in the crime of rape
committed against the person of Ester Raymundo and imposes upon him the penalty
of RECLUSION PERPETUA. He is, likewise, directed to indemnify private complainant Ester
Raymundo the sum of P50,000.00 as and for moral damages.

Accused Reylan Gimena is hereby ACQUITTED because he acted under the impulse of
uncontrollable fear of an equal, if not greater injury.

For want of evidence, his cross-claim against Rene Siao should be, as it is hereby ordered,
DISMISSED.  2

Hence, this appeal by Rene Siao.

The Office of the Solicitor General summarized the evidence for the prosecution in this wise:
3 

Joy Raymundo and private complainant Estrella Raymundo are cousins. They worked as
house maids of appellant's family. Reylan Gimena was also a helper of appellant's family.
Estrella was then a 14-year old "probinsiyana" from Palompon, Leyte (p. 5, TSN, September
16, 1994).

On May 27, 1994, at about 3:00 p.m., in the Siao residence located at 417-A Basak
Brotherhood, Cebu City, appellant ordered Reylan Gimena, a houseboy of the Siaos, to pull
Estrella to the room of the women. Gimena dragged her toward the women's quarters and
once inside, appellant pushed her to the wooden bed (naomog). Appellant pointed a pistol
colored white at Gimena and the face of Estrella (pp. 7-8, TSN, September 16, 1994).

Producing a candle and a bottle of sprite, appellant asked Estrella to choose one among a
pistol, candle or a bottle of sprite. He also told Gimena "Reylan, birahi si Ester." (Reylan do
something to Ester.) Appellant lighted the candle and dropped the melting candle on her
chest (p. 7, TSN, September 20, 1994). Estrella chose a bottle of sprite because she was
afraid of the pistol. She was made to lie down on her back on the bed with her head hanging
over one end. Whereupon, appellant poured sprite into her nostrils as she was made to
spread her arms. While appellant dropped the bottle of sprite into her nostrils, he pointed the
gun at her face. Estrella felt dizzy and her eyesight became blurred (p. 6, TSN, September
20, 1994). She tried to fold her arms to cover her breasts but appellant ordered Gimena to
hold her hands (p. 10-15, TSN, September 16, 1994).

Appellant then tied her feet and hands with an electric cord or wire as she was made to lie
face down on the bed. After that, appellant untied her hands and feet but tied her back with
the same wire (p. 17, TSN, September 16, 1994).
As appellant pointed his pistol at her, he ordered Estrella to remove her pants and T-shirt,
she sat on the bed and did as she was told and when she was naked, appellant commanded
her to take the initiative (ikaw ang mauna sa lalaki.) She did not understand what appellant
meant. At this point, appellant poked the gun at her temple (pp. 19-20, TSN, September 16,
1994).

Appellant then commanded Gimena to remove his shorts. But Gimena refused. Gimena did
not remove his shorts but let his penis out (p. 21, TSN, September 1, 1994; p. 11, TSN,
September 20, 1994).

Appellant spread the arms of Estrella and made her lie down spread-eagled (pp. 4-5, TSN,
September 29, 1994). She felt dizzy and shouted for help twice. Appellant ordered Gimena
to rape Estrella. At first Gimena refused to heed the command of appellant to rape Estrella
(birahi) because, according to Gimena, he has a sister. Appellant said that if they would not
obey, he would kill both of them (pp. 4-10, TSN, September 20, 1994.)

Appellant told Gimena, "Reylan, do something (birahi) to Ester!" Estrella was made to suck
the penis of Gimena at gunpoint. She complied with the order of appellant and when the
penis of Gimena was inside her mouth, appellant kept looking and pointing his handgun at
them (pp. 11-14, TSN, September 20, 1994; pp. 19-20, TSN, September 21, 1994).

Thereafter, Gimena got on top of Estrella (gisakyan) and did the sexual act (kayatan). She
felt excruciating pain. Gimena made push-and-pull movements for around 10 minutes.
Appellant looked on and said, "why did it take you long to penetrate?" While Gimena was
making the push-and-pull movements, appellant held the legs of Estrella to keep them apart
(pp. 21-24, TSN, September 20, 1994).

After Gimena had sexual intercourse with Estrella, she sat down. Not long after, appellant
said: "You do it again." Gimena said that he could not do it again because he was already
very tired. But appellant pointed the pistol at Gimena's temple. Gimena obeyed the order of
appellant because the pistol was pointed at him (pp. 25-26, TSN, September 20, 1994).
They were made to lay side by side while appellant kept on pointing the pistol at them.
Gimena, who was behind Estrella made a push-and-pull movements so that his organ would
reach her private part (pp. 27-29, TSN, September 20, 1994).

After the side by side position, they were made to assume the dog position (patuwad).
Appellant commanded her to do it but she refused because she was already tired. Appellant
pointed the pistol at her, so she obeyed his order. Gimena said: "I will not do that because I
am already tired." At that, appellant pointed the pistol at Gimena. Thus, Gimena copulated
with Estrella in the manner dogs perform the sexual intercourse. Gimena shouted for help.
Somebody knocked on the door and they heard the voice of Teresita Pañares, the older
sister of appellant. Appellant ignored Pañares and kept on pointing the pistol at Estrella and
Gimena, as he looked at them with wide-open eyes (siga) (pp. 30-31, TSN, September 20,
1994). Shortly, appellant told them to go to the boy's room. They complied with his order
tearfully, after he followed them laughing all the while. Appellant then warned them: "If you
will tell the police, I will kill your mothers." (pp. 33-34, TSN, September 20, 1994).

At around 6:00 o'clock in the evening of the same day, Estrella and Joy Raymundo sought
permission to go home. On their way home, they met an old man who saw Estrella crying.
The old man took them to his house. After the incident was reported to the police, Senior
Police Officer Reynaldo Omaña conducted the investigation and arrested Gimena, who was
identified by Esrtrella as the one who raped her on orders of appellant. The police officers
 looked for appellant to shed light on the reported rape. But they could not locate him (Exhibit
"B"; pp. 5-7, TSN, December 13, 1994). 4

Accused-appellant Rene Siao, anchoring his defense mainly on denial, presents a different version
of the case; his story —

Private complainant Ester or "Estrella" Raymundo, together with her cousin Joy Raymundo,
was employed as a maid by the Siao family on May 9, 1994.

In the morning of May 27, 1997, a commotion in the household of Jose Siao awakened
Teresita Pañares, a sister of accused-appellant. Ms. Pañares learned that accused Reylan
Gimena, one of the houseboys of the Siao family, was accusing private complainant of
stealing his wristwatch. This was not the first time accused Gimena confronted private
complainant with the loss of his watch. Earlier in the week, Teresita had also lost money in
the amount of P1,300.00, while her daughter Jan Bianca Abellana lost a necklace. It would
turn out that the other househelpers of the Siaos had likewise lost personal articles. Marilyn
Resujent, a maid, lost a brand new panty and sleeveless blouse. Simeon Siroy Jr., a
houseboy, lost two T-shirts. Until the employment of the Raymundo cousins, the household
of the Siaos had not fallen victim to thievery.

At around noontime of the same day, upon his return from his morning chores, accused
Gimena inquired from Ms. Pañares whether his watch had been found. When informed that
his watch had not been recovered, he confronted private complainant, who offered to pay for
the value of the watch instead. Joy Raymundo agreed to accompany accused Gimena to the
house of an aunt (of Joy and private complainant) for financial assistance. An hour later,
accused Gimena and Joy Raymundo returned to the Siao compound and reported to Ms.
Pañares that the aunt was unable willing (sic) to help.

In the meantime, private complainant admitted to Ms. Pañares that she stole the P1,300.00
but denied having taken the necklace. Private complainant initially returned the sum of
P600.00 to Ms. Pañares. When Ms. Pañares stated that what she lost was P1,300.00,
private complainant went to her quarters and returned with an additional P200.00. Private
complainant explained that she could no longer produce the remaining money because she
had already purchased a number of personal effects (pail, basin, pants, shorts) for herself
with it.

A little while after accused Gimena and Joy returned from the house of Joy and Ester's aunt,
accused Gimena and private complainant went to the male's quarters. Sometime thereafter,
accused Gimena emerged from the male's quarters and announced the recovery of his
watch. Private complainant had revealed to accused Gimena the hiding place of his watch,
which was under the ironing board.

In the afternoon of May 24, 1994, many people were present in the household of Jose Siao,
5 

father of accused-appellant. Ms. Beatriz Baricuatro was in the sala praying the rosary as was
were habit. Joy Raymundo was in the kitchen. Ms. Pañares was likewise downstairs going
about her daily business. The grandchildren of Jose Siao were running in and out of the
house.

At about 3:00 p.m., Ms. Pañares left their residence to seek the assistance of the barangay
with respect to the lost necklace of her daughter. (Until this time, private complainant would
not admit to stealing the necklace). Within an hour, Ms. Pañares returned to the compound
accompanied by Barangay Tanod Arturo Jabines. Private complainant was inside the male's
quarters when the two arrived. Accused had earlier reported for work at the retail store
owned by Jose Siao. When Barangay Tanod Jabinez introduced himself, private
complainant immediately begged for his forgiveness and promised not to do it again.
Barangay Tanod Jabinez instructed the private complainant to address her pleas to her
victims and not to him. Before the barangay tanod, private complainant admitted to stealing
the necklace.

Dissatisfied with the piece-meal confession of the private complainant, Ms. Pañares decided
to bring her to the barangay hall where she could report the theft. On the way to the
barangay hall, private complainant confessed to selling the necklace and begged for
forgiveness. At the last minute Ms. Pañares relented and decided to give the private
complainant a second chance.

Upon their return to the Siao compound, private complainant and Joy Raymundo sought
permission from Ms. Baricuatro to just return to their home in Leyte. Ms. Beatriz gave her
consent and even handed them money for boat fare. At about 6:00 p.m., both housemaids
left the Siao residence, bringing with them all their personal belongings. An hour later, some
people came to the house of Jose Siao looking for private complainant and her cousin.

At this time, accused-appellant Rene Siao remained unaware of the developments that
unraveled in the residence of Jose Siao. In the morning of May 24, 1994, accused-appellant
6 

made his usual rounds ]collecting the obligations of his father's creditors. At noontime,
accused-appellant went directly to the retail store of his father where he had lunch with his
wife Gina, as was his habit. This was the usual hour of his father's siesta and he would tend
to the store in his father's absence, as was his custom.

At about 9:00 p.m. of the same evening, a barangay tanod came to the retail store and
invited accused Gimena to the barangay hall. Jose Siao and Ms. Pañares would follow.

At the barangay hall, upon the complaint of a certain Rosalie Sallentes (who claimed to be
related to the Raymundo cousins), Barangay Captain George Rama asked accused Gimena
of the whereabouts of Ester and Joy Raymundo. Accused Gimena answered that he did not
know. During the course of the investigation, and under threat by the Barangay Captain that
his head would be broken if he did not tell the truth, accused Gimena confessed to tying up
the private complainant to force her to reveal the place where his watch was being kept. He
untied her after he recovered his watch from under the ironing board.

The following evening, on May 28, 1994, accused Gimena was picked up by policemen at
the retail store of Jose Siao and brought to the Tabo-an Police Station.

Neither the police nor the barangay tanod looked for accused-appellant on the evenings of
May 27 and 28, 1994.

Private complainant would file a complaint against accused-appellant and accused Gimena
on June 21, 1994.

After the case was filed but before trial commenced, a person who presented himself as the
father of private complainant set a meeting with the Siaos. The father of private complainant
demanded 1 Million Pesos from the Siaos to drop the rape case. 7
As stated earlier, the trial court rendered a decision finding accused-appellant Rene Siao guilty of
the crime of rape as principal by induction in accordance with Article 17(2) of the Revised Penal
Code. 8

Insisting on his innocence, accused-appellant assigns to the trial court the following alleged errors:

THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT SIAO GUILTY BY

INDUCEMENT

THE TRIAL COURT ERRED IN CHARACTERIZING THE INCONSISTENCIES AS MINOR

AND IMMATERIAL

THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE TESTIMONY OF THE

PROSECUTION WITNESSES 9

The Court has carefully reviewed the records of this case and has found accused-appellant's
contentions to be without merit. Against the victim's story, accused-appellant urges us to accept his
own version. But we cannot do so, for we agree with the trial court's observation that a 14-year old
girl from the province, naïve and innocent to the ways of the world, is incapable of concocting
serious charges against her employer and fabricating a story of aberrant sexual behavior as can only
be told by one who has been subjected to it.

First, accused-appellant's assertion that the failure of the prosecution to present the gun used by him
to force and intimidate Ester Raymundo and Reylan Gimena to perform sexual intercourse is fatal to
the prosecution's cause is clearly untenable. This Court has held in People vs. Travero, that "[t]he
non-presentation of the weapon used in the commission of the rape is not essential to the conviction
of the accused. It suffices that the testimony of the rape victim is credible because the established
rule is that the sole testimony of the offended party is sufficient to sustain the accused's conviction if
it rings the truth or is otherwise credible.  10

As to fact that accused-appellant Rene Siao forced and intimidated at gunpoint Ester Raymundo and
Reylan Gimena to have carnal knowledge of each other, we are convinced that the same has been
adequately proved by the prosecution's evidence. Even as under settled jurisprudence, the evidence
for conviction must be clear and convincing to overcome the constitutional presumption of
innocence, we find the straightforward, consistent and candid manner in which Ester Raymundo
related her harrowing experience in the hands of accused-appellant as bearing all the earmarks of
verity. Not only that, the corroborative testimony of Reylan Gimena was consistent in material
respects with that of Ester Raymundo. 1âwphi1.nêt

Ester Raymundo testified as follows:

Q: Now, in your position which you have stated awhile ago, what did Reylan do with his
penis?

COURT

"If he did anything?" To avoid any leading question. You can ask, "What happened next?"
"What did he do?" But to ask what did he do with his penis . . .

FISCAL BUENVIAJE
My questions are personal and very . . .

COURT

You can frame your question by just adding a few words "if he did anything."

WITNESS

A: We did the sexual act (kayatan).

FISCAL BUENVIAJE

Q: Was he successful in penetrating you?

A: Yes.

Q: And all the time Rene Siao was holding both of your legs?

ATTY. SENINING

One of the . . .

COURT

Sustained. That is very leading.

Q: Now, what did you feel when Reylan penetrated you?

A: I felt excruciating pain.

FISCAL BUENVIAJE

Q: So, what did you do because of that pain?

WITNESS

A: I sat down when it was finished.

Q: How many minutes was Reylan doing the sexual act, the push-and-pull above you?

ATTY. FERNANDEZ

Your Honor, I would suggest, because there is no testimony to the effect that there was a
push and pull. There was no establishment, Your Honor, the penetration was established but
whether there was a push and pull after the first penetration. Just for justice in this matter it
must be established by simple questions.

COURT
Okay, ask simple questions.

FISCAL BUENVIAJE

Q: Did Reylan make a push-and-pull?

ATTY. SENINING

That is leading also.

FISCAL BUENVIAJE

That is natural, that necessarily follows:

COURT

Let the Court ask the question:

Q: What was the body movement of Reylan when he had a sexual intercourse with you?

A: He kept on push . . .

COURT

"He made a push-and-pull movement."

ATTY. FERNANDEZ

Making pumping action.

FISCAL BUENVIAJE

That is push-and-pull. I object that "pumping." This is not an artesian well.

COURT

You will just Americanize "pumping."

FISCAL BUENVIAJE

Q: For how many minutes was Reylan doing the sexual act of push-and-pull?

WITNESS

A: Ten (10) minutes, more or less.

Q: Now, while Reylan was doing the push-and-pull for about 10 minutes, what was Rene
Siao doing all the time?
A: Rene Siao kept on looking and said, "Why did it take long to penetrate?

Q: Now, what was the position of both of the hands of Rene Siao?

COURT INTERPRETER

Witness demonstrating that Rene Siao held her both legs in order to spread it apart.

FISCAL BUENVIAJE

I would like to add some comments to the interpretation. According to the witness, while
Reylan Gimena was doing the sexual act, all the time Rene Siao was holding both her legs.
That is precisely the meaning.

Another question.

Q: Did Reylan Gimena reach that climax wherein he was like being electrocuted?

COURT

Sustained; she does not even know what is a climax.

FISCAL BUENVIAJE

Q: Was Gimena able to consummate the act of rape on you?

ATTY. SENINING

That is a matter of law and interpretation.

COURT

Sustained. Anyway, you have the medical certificate. Next question.

FISCAL BUENVIAJE

Q: Now, after that 10 minutes wherein Gimena raped you while Rene Siao was holding both
of your legs, what happened next?

ATTY. SENINING

I would just like to correct the word "rape."

ATTY. FERNANDEZ

I would also . .

ATTY. SENINING
I would suggest . . . (not finished)

FISCAL BUENVIAJE

"Sexual act."

ATTY. SENINING

All right.

WITNESS

A: Rene Siao then said that "You do it again."

COURT

Then continue.

WTNESS

A: Then Reylan Gimena answered that he cannot do it because he is already very tired.

FISCAL BUENVIAJE

Q: Did Rene Siao allow Gimena to take a rest?

ATTY. SENINING

Again, Your Honor, please.

COURT

What is your ground?

ATTY. SENINING

Leading.

COURT

Reform.

FISCAL BUENVIAJE

Q: What did Rene Siao do when at first Gimena refused because he was tired?

A: He pointed the handgun to Reylan Gimena.

Q: What portion of the body of Gimena was pointed with a gun by Rene Siao?
A: At the left temple.

Q: So, what did Reylan do when Siao pointed the pistol on his temple?

A: He obeyed the order because he was afraid of the handgun.

FISCAL BUENVIAJE

Q: So, what did Reylan do to you for the second sexual act?

ATTY. FERNANDEZ

Your Honor, please, I would object, I would rather suggest that the question, "What did
Reylan do after?"

FISCAL BUENVIAJE:

After the statement.

COURT

Sustained. You already assumed that there was a second.

FISCAL BUENVIAJE

Okay, I will reform.

Q: What did Reylan Gimena do when Siao pointed his gun on his temple?

WITNESS

A: He obeyed the order because he is pointed with a handgun.

Q: What position this time?

A: He was made to lie at my side.

Q: As you were now on your side, what did Reylan Gimena do?

A: Reylan Gimena also laid at his side.

Q: What did Rene Siao do, if any?

A: He kept on pointing the handgun.

Q: To whom?

A: Me.
FISCAL BUENVIAJE

Q: Was Gimena able to successfully penetrate you this second time around?

ATTY. SENINING

May I just request, Your Honor, that the . . . (not finished)

COURT

Reform.

FISCAL BUENVIAJE

Q: You said Gimena also . . . (not finished)

COURT

Just ask, "What happened next?"

WITNESS

A: He kept on push-and-pull toward my private part.

Q: Where did Gimena position himself in relation to you?

COURT INTERPRETER

The witness demonstrated by pointing at her left back.

COURT

Q: Were you face-to-face or was he behind you?

A: He is behind.

FISCAL BUENVIAJE

Q: And what did he do?

ATTY. FERNANDEZ

I think that has been answered that he made push-and-pull.

Q: Was he able to penetrate you the second time?

WITNESS

A: Yes, Sir.
Q: For how many minutes, if you still remember, did Gimena do the push-and-pull action
from your behind?

A: Ten (10) minutes.

Q: Was he able to accomplish his act?

ATTY. SENINING

What act?

FISCAL BUENVIAJE

Sexual act.

ATTY. SENINING

Already answered, penetrated.

FISCAL BUENVIAJE

But there is still climax that is why I am asking.

ATTY. FERNANDEZ

I think I have no objection to the question whether Reylan Gimena ejaculated.

ATTY. SENINING

In fact that will be part of my cross-examination.

WITNESS

A: Maybe.

Q: Now, after that 10 minutes, what happened next?

A: After the 10 minutes he let me assume a dog position (patuwad).

FISCAL BUENVIAJE

Q: Who ordered you to do the dog position?

A: Rene Siao.

Q: What did he do to you?

A: He told me to do it again but I was already tired and he pointed the handgun to me.
Q: Did you assume the dog position upon the order of Rene Siao?

A: Yes, because I was afraid of the handgun.

Q: And what did Reylan do this time, if any?

A: Reylan answered that "I will not do that because I am already very tired."

Q: What did Rene Siao do upon hearing the statement of Reylan that he would not comply?

A: He again pointed his handgun.

Q: Did Reylan comply wen Rene Siao pointed the gun to him?

A: Yes, because he was afraid.

Q: And what did Reylan do to you?

A: Reylan made a push-and-pull because I was made by Rene Siao to assume the dog
position (patuwad).

Q: Was Reylan able to penetrate you this time?

A: Yes, and I even shouted.

Q: What did you shout?

A: "Tabang!" I asked for help "Tabang!" and then there was somebody who knocked. There
was a knock made by my Ate and she asked, "What are you doing there?" And Rene Siao
did not listen.

FISCAL BUENVIAJE

Q: According to you Rene Siao did not listen. In effect, did he order you and Reylan to
continue the act?

WITNESS

A: Yes, Sir.

Q: While Reylan Gimena was doing the sexual act on you, what was Rene Siao doing all the
time?

A: He kept on pointing the handgun and kept on looking with wide eyes (siga).

Q: For about how many minutes was that dog position continued until termination?

A: Five (5) minutes.

Q: After that, what happened next?

 A: Then Rene Siao told us to do the act in the room of the boys.  11

Corroborating the foregoing, Reylan Gimena testified as follows:

FISCAL BUENVIAJE

Q: After the sucking incident, what happened next?

A: The woman was ordered to lie down.

COURT

The Court would like to ask one question.

Q: When Ester was sucking your penis, did you ejaculate or did you feel warm liquid coming
out of your penis?

A: No, Your Honor.

Continue, Fiscal.

FISCAL BUENVIAJE

Q: Now, you said Rene Siao ordered Ester to lie down, did she comply?

A: Yes, because he pointed a firearm to her.

Q: Where did she lie down?

A: On the bed, sir.

Q: What was the position of Ester as she was lying down?

A: She was lying face upward.

Q: What was the position of her legs?

A: Straight, sir.

FISCAL BUENVIAJE

Q: Now, as Ester was already lying down straight upon order of Rene Siao, what happened
then?

A: I was told by him to go on top of the woman.

Q: What was the exact word of Rene Siao in ordering you so?

A: He said go on top of the woman so that you can deflower her.

Q: Did you understand what Rene Siao told you?

A: Yes, sir.

Q: What was your understanding?

A: He wants the woman to be raped.

COURT

Q: I think you have not answered the question of the prosecuting fiscal. If you can still recall,
what were the words uttered or used by Rene Siao?

A: He said that he wants me to fuck the woman and he wants it fast.

Q: And did you lie on top of the woman of Ester?

ATTY. SENINING

Leading.

COURT

Your just reform.

FISCAL BUENVIAJE

Q: What did you do?

A: I got on top of the woman.

Q: Did you make a push and pull action on the vagina of Ester?

ATTY. SENINING

Leading, Your Honor.

FISCAL BUENVIAJE

Naturally, it follows. In the interest of justice, Your Honor.

COURT

Let the Court ask the question.

Q: Were you able to penetrate or not?

A: I was not able to penetrate yet.

FISCAL BUENVIAJE

Q: When you were not able to penetrate Ester, what was the reaction of Rene?

A: He said, "How is that?" Is it not inserted yet?" And I answered back, "Not yet, Pard,
because it is hard." And he said, "If it is hard we will separate her legs."

Q: In effect, did Rene fulfill his words of spreading the legs of Ester?

ATTY. SENINING

Leading, Your Honor, because the word is "we." "We will spread her legs."

COURT

You just reform.

Q: What, if anything, did Rene do?

FISCAL BUENVIAJE

Q: After uttering those words that we will separate her legs?

ATTY. FERNANDEZ

No. He answered "bilangkad," Your Honor.

COURT

No, It's on tape.

ATTY. FERNANDEZ

After he said "kuan, he said "bilangkad."

COURT

Although you put it on record. No.

COURT INTERPRETER

Witness motioning as if he was spreading.

COURT

To satisfy Atty. Fernandez. You rewind.

(The tape was rewinded and played by the stenographer.)

COURT

What is audible is the use of the word "kuan."

You clarify this point.

FISCAL BUENVIAJE

We have the prerogative to ask.

COURT

Never mind. You ask.

FISCAL BUENVIAJE

Please do not refrain us from clarifying.

COURT

Clarify.

FISCAL BUENVIAJE

Because we will clarify what is not clarified.

Q: After uttering those words, what did Rene do, if any?

A: He held the woman and spread her legs.

Q: At this juncture wherein Rene Siao was already holding the legs of Ester in order to
spread it, were you able to penetrate Ester?

ATTY. SENINING

Leading again, Your Honor, please.

FISCAL BUENVIAJE

This is cross-examination.

COURT

I will allow.

FISCAL BUENVIAJE

How can we . . .
COURT

Never mind. I will allow.

WITNESS

A: Yes, that was the time I penetrated.

COURT

Q: So your penis was stiff?

A: Yes, Your Honor.

Q: Did you like what you do?

A: No, Your Honor.

Next question.

FISCAL BUENVIAJE

Q: Did you ejaculate?

A: Yes, sir.

COURT

Q: What did you feel when you ejaculated?

A: I do not know because that was my first time, Your Honor, with a woman.

FISCAL BUENVIAJE

Q: You said you were able to penetrate Ester while Rene Siao was holding both of her
thighs, then spreading it, and you said you ejaculated. After that, what happened next?

A: He told the woman to lie on her side.

Q: Did Ester comply to lie on her side?

A: Yes, because a firearm was pointed at her.

COURT

Q: Did you notice if Ester was bleeding?

A: No, Your Honor.

Q: In her vagina?

A: Yes, Your Honor.

FISCAL BUENVIAJE

Q: At that position wherein Ester was lying on her side, what did Rene do?

A: He ordered another position.

Q: Did you comply to fuck Ester in that position as ordered by Rene.

ATTY. SENINING

There is no basis yet.

COURT

There was no question yet. There was no evidence that he was commanded to have sexual
intercourse.

ATTY. SENINING

He told . . .

COURT

Not yet. He only testified that Ester was made to lie sideways.

FISCAL BUENVIAJE

Q: After Ester complied to the order of Rene to lie on her side, what more happened?

A: That was the time that mine penetrated.

Q: Was that upon order of Rene?

ATTY. SENINING

Leading again, Your Honor.

COURT

Sustained.

FISCAL BUENVIAJE

Q: You said you were able to penetrate Ester as she was on her side, is that your own
volition to fuck her on that position?
ATTY. SENINING

Leading, Your Honor.

FISCAL BUENVIAJE

That is precisely the consequence.

COURT

Let the Court ask the question.

Q: Why did you fuck her on that position?

A: Because it was the order of Rene, Your Honor.

Sometimes it is the way you phrase the question. Okay, continue.

FISCAL BUENVIAJE

Q: After this side position, what happened next?

A: He ordered the woman to assume the doggy position.

COURT

Let's just understand. "Gipatuwad." Let's just assume.

ATTY. FERNANDEZ

Crouching position.

COURT

Crouching.

FISCAL BUENVIAJE

Q: In effect, did Ester comply to pose in a doggy position?

A: Yes, because a firearm was pointed to her.

COURT

You just put there parenthesis (gipatuwad).

FISCAL BUENVIAJE

Q: As Ester was in a dog position, did Rene utter anything to you?

ATTY. SENINING

Hearsay again, Your Honor. Leading, Your Honor.

COURT

You just reform.

FISCAL BUENVIAJE

Q: After Ester assumed that dog position, what did Rene do, if any?

A: He ordered me.

Q: What was the order?

ATTY. SENINING

I only request that the DSWD at my back, Your Honor, should not be allowed to coach the
witness. I have no objection . . .

COURT

I am warning the representative of the DSWD to leave the interpreter alone.

ATTY. SENINING

Are you interested in this case?

COURT

Never mind, Compañero. There is a warning already.

(The last question of Fiscal Buenviaje was interpreted and answered by the witness).

COURT

I understand because he is not used to using obscene words.

FISCAL BUENVIAJE

He is not accustomed.

ATTY. FERNANDEZ

We just would like to manifest that the witness is not familiar in using obscene words.

COURT
We do not know. The understanding of the court is he is hesitant to use obscene words.

ATTY. SENINING

Not because that . . .

ATTY. FERNANDEZ

I would like to manifest that the witness is hesitant to use obscene words.

FISCAL BUENVIAJE

Q: What did you do upon that order of Rene?

A: He ordered me to fuck the woman, sir.

Q: Did you comply with the order to fuck Ester?

A: Yes, because I was afraid as he kept on pointing his firearm to me.

Q: And you were able to penetrate Ester on that position?

A: Yes, sir.

COURT

Q: By the way, at this juncture your penis was still stiff after the third position?

ATTY. SENINING

Fourth.

ATTY. FERNANDEZ

Third, Your Honor.

COURT

Third. The sexual intercourse. Oral sex first. After the third sexual intercourse.

ATTY. FERNANDEZ

Third penetration, Your Honor.

WITNESS

A: Yes, Your Honor.

COURT
 Q: Were you afraid at that juncture or point of time?

A: I was still afraid, Your Honor, because he kept on pointing his firearm to me.

Q: Did you like what did the third time, that is, penetrating Ester in a doggy position?

A: No, Your Honor.

Q: But you insist that your penis was still stiff?

A: Yes, Your Honor.

Q: Did you easily penetrate the vagina of Ester?

A: Not so easy, Your Honor.  12

To sum up, Ester Raymundo and Reylan Gimena were forced and intimidated at gunpoint by
accused-appellant Rene Siao to have carnal knowledge of each other. Rene Siao called Reylan
Gimena inside the women's quarter. After Rene Siao closed the door, he told Reylan, "Reylan, birahi
si Ester". Since Reylan was at a loss as to what to do, Rene Siao commanded Ester at gunpoint to
"suck (um-um) the penis" of Reylan Gimena.  Both Reylan and Ester performed the sexual act
13 

because they were afraid they will be killed. Thereafter, accused-appellant commanded Reylan to
rape Ester in three (3) different positions, pointing the handgun at them the whole time.

The testimony of Ester and Reylan were assessed by the trial court to be credible. Unless certain
facts of substance and value were overlooked which, if considered, might affect the result of the
case, its assessment must be respected for it had the opportunity to observe the conduct and
demeanor of the witnesses while testifying and detect if they are lying.  We find no reason to deviate
14 

from the findings of the trial court. If their story had only been contrived, Ester and Reylan would not
have been composed and consistent in the face of such intense and lengthy interrogation.

Second, accused-appellant faults the trial court for giving credence to the testimonies of Ester
Raymundo and Reylan Gimena despite being fraught with substantial inconsistencies with regard to
the following points: 1. Ester testified that Reylan pulled her to the women's quarter, while Reylan
testified that when he entered the room Ester was already tied up in the bed; 2. Ester testified that
she was lying "face down" on the bed, while Reylan testified that she was lying "face upward"; 3.
Ester testified that before being made to undress, accused-appellant Rene Siao wound electrical
wire around her neck and Gimena made no mention of this; 4. Ester testified that Gimena ejaculated
while performing the sexual acts while Gimena testified that he did not ejaculate; and lastly, 5. Ester
testified that she had sought help from her cousin Joy Raymundo on the way out from the women's
quarter while Reylan testified that she just walked slowly towards the men's quarters as ordered by
accused-appellant.

It can readily be seen that the alleged inconsistencies are inconsequential considering that they refer
to trivial matters which have nothing to do with the essential fact of the commission of rape, that is
carnal knowledge through force and intimidation. This Court has consistently adhered to the rule that
inconsistencies on minor details of the testimonies of witnesses serve to strengthen their credibility
as they are badges of truth rather than an indicia of falsehood.  If at all, they serve as proof that the
15 

witnesses were not coached and rehearsed.

Third, accused-appellant contends that the testimonies of the prosecution witnesses do not conform
to common experience due to the following reasons: Reylan Gimena ejaculated three times in a
span of less than 30 minutes; the rape took place within earshot and near the presence of other
people; Ester and Reylan did not make a dash for freedom during the ten minutes it took Rene Siao
to follow them from the women's quarter to the male's quarter where the latter wanted them to
resume their copulation; a barangay tanod was present at the place of the alleged rape at about 4:00
p.m.; the private complainant reported the incident to an old man she chanced upon on her way
home.

Again, the points raised by accused-appellant are trite and of no consequence. First of all, the
important consideration in rape is not the emission of semen but the penetration of the female
genitalia by the male organ.  Well-settled is the rule that penetration, however slight, and not
16 

ejaculation, is what constitutes rape.  Thus, this factor could not affect the case for the prosecution.
17 

Second, accused-appellant's argument that it is impossible to commit a rape in house where there
are many occupants is untenable. We have held in a number of cases that lust is no respecter of
time and place.  It is not impossible to perpetrate a rape even in a small room. Rape can be
18 

committed in a house where there are many other occupants.  Third, Ester and Reylan could not be
19 

expected to flee or even to attempt to flee under the circumstances. Undoubtedly, considering that
Ester was only fourteen-years old and a newly employed housemaid, while Reylan Gimena a
seventeen-year old houseboy, they were easily intimidated and cowed into submission by accused-
appellant, who aside from being their "amo" or employer, was menacingly threatening to kill them or
their family with a gun if they did not do as he commanded them to do. Thus, it was not improbable
for them not to attempt to escape when as accused-appellant perceived they had an opportunity to
do so. Moreover, while most victims will immediately flee from their aggressors, others become
virtually catatatonic because of the mental shock they experience.  It was also not improbable for
20 

them to report the incident to an old man they met on the road as there was no on else to turn to.

In a bid to exculpate himself, accused-appellant presents a totally different version of the story.
Accused-appellant sought to establish by his story that since Ester was caught stealing money and
the personal belongings of the people in the household she had motive to implicate accused-
appellant in such a serious charge. We cannot see how a 14-year old girl from the rural area could
fabricate such charges borne out of a desire for revenge. We agree with the following explanation by
the trial court:

The court cannot believe that a 14-year-old girl who is a stranger in the city will vent her ire
on Rene Siao. If Rene Siao were to be believed that he did not confront Ester about the
latter's act of committing the crime of theft, why would Ester take revenge on Rene Siao?
The court cannot believe that this 14-year-old probinsyana will concoct a story so as to do
damage against business men like Jose Siao, Beatriz Baricuatro and Rene Siao. As a matter
of fact, filing a case in court would mean untold misery and inconvenience. It will expose her
to shame. She mustered enough courage if only to make the truth prevail. She ventured to
assume the role of David against Goliath.  21

On the contrary, this theory of accused-appellant backfires on him because it appears that due to the
thefts allegedly committed by Ester, Rene Siao decided to vent his ire by subjecting her to a
perverted form of punishment and using Reylan as an instrument thereof. As to the charge of
accused-appellant that the father of Ester tried to extort a huge sum of money from the accused-
appellant's family so that the case against him will be dropped, we agree with the trial court that this
contention is largely self-serving as it is uncorroborated.

All told, we agree with the trial court that the testimony of Ester Raymundo as well as the testimony
of Reylan Gimena corroborating the same support the prosecution's version of the fateful incident.
The rape was committed on May 27, 1994 or after the effectivity of R.A. 7659 on December 31,
1993.  The governing law, Article 335 of the Revised Penal Code as amended by R.A. No 7659
22 

imposes the penalty of reclusion perpetua to death, if committed with the use of a deadly weapon. It
reads:

When and how rape is committed. — Rape is committed by having carnal knowledge of a
woman under any of the following circumstances:

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua.

Whenever the crime of rape is committed with the use of a deadly weapon, the penalty shall
be reclusion perpetua to death.

When by reason or on the occasion of the rape, the victim has become insane, the penalty
shall be death.

When the rape is attempted or frustrated and a homicide is committed by reason or on the
occasion thereof, the penalty shall be reclusion perpetua to death.

When by reason or on the occasion of the rape, a homicide is committed, the penalty shall
be death.

The death penalty shall also be imposed if the crime of rape is committed with any of the
following attendant circumstances:

1. when the victim is under eighteen (18)years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within the third
civil degree, or the common-law spouse of the parent of the victim.

2. when the victim is under the custody of the police or military authorities.

3. when the rape is committed in full view of the husband, parent, any of the children
or other relative within the third degree of consanguinity.

4. when the victim is a religious or child below seven (7) years old.

5. when the offender knows that he is afflicted with Acquired Immune Deficiency
Syndrome (AIDS) disease. 1âwphi1

6. when committed by any member of the Armed Forces of the Philippines or the
Philippine National Police or any law enforcement agency.

7. when by reason or on the occasion of the rape, the victim has suffered permanent
physical mutilation.
Accused-appellant was held guilty of rape with the use of a deadly weapon, which is punishable
by reclusion perpetua to death.  But the trial court overlooked and did not take into account the
23 

aggravating circumstance of ignominy and sentenced accused-appellant to the single indivisible

penalty of reclusion perpetua. It has been held that where the accused in committing the rape used
not only the missionary position, i.e. male superior, female inferior but also the dog position as dogs
do, i.e. entry from behind, as was proven like the crime itself in the instant case, the aggravating
circumstance of ignominy attended the commission thereof.  24

However, the use of a weapon serves to increase the penalty.  Since the use of a deadly weapon
25 

increases the penalty as opposed to a generic aggravating circumstance which only affects the
period of the penalty, said fact should be alleged in the information, because of the accused's right to
be informed of the nature and cause of the accusation against him.  Considering that the complaint
26 

(which was later converted into the Information) failed to allege the use of a deadly weapon,
specifically, that herein accused-appellant was armed with a gun, the penalty to be reckoned with in
determining the penalty for rape would be reclusion perpetua, the penalty prescribed for simple rape
under Article 335, as amended by R.A. No. 7659. Simple rape is punishable by the single indivisible
penalty of reclusion perpetua, which must be applied regardless of any mitigating or aggravating
circumstance which may have attended the commission of the deed.  Hence, the penalty
27 

of reclusion perpetua imposed by the trial court is correct.

As a final matter, the trial court erred in ordering accused-appellant Rene Siao to pay the
complainant only the civil liability arising from the offense in the amount of P50,000.00. In addition, it
should have ordered accused-appellant to pay the offended party moral damages, which is
automatically granted in rape cases without need of any proof.  Currently, the amount of moral
28 

damages for rape is fixed at P50,000.00.  Moreover, the presence of one aggravating circumstance
29 

justifies the award of exemplary damages pursuant to Article 2230 of the Civil Code of the
Philippines  We find the amount of P20,000.00 as exemplary damages reasonable on account of
30 

the fact that the aggravating circumstance of ignominy attended the commission of the crime of rape.

WHEREFORE, the decision of the Regional Trial Court, Branch 13, Cebu City, is hereby AFFIRMED
with the MODIFICATION that accused-appellant Rene Siao is ordered to pay P50,000.00 to Ester
Raymundo by way of moral damages, and P20,000.00 by way of exemplary damages in addition to
the amount of P50,000.00 which the trial court ordered him to pay as indemnity.

SO ORDERED. 1âwphi1.nêt

G.R. No. 188707               July 30, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
MANUELITA AMPATUAN y GONZALES, ET AL., Accused,
MASTOR SARIP y MARUHOM and WARREN TUMOG y SAMPARADO, Accused-Appellants.

DECISION

PEREZ, J.:
Under review is the conviction of the accused-appellants for illegal sale of shabu, illegal possession
of shahu and shabu paraphernalia, punishable under Sections 5, 11 (3), and 12, Article II of
Republic Act No. 9165 (R.A. No. 9165), otherwise known as the "'Comprehensive Dangerous Drugs
Act of 2002". The challenged decision is the Decision  of the Court of Appeals (CA), dated 9 October
1

2007 in CA-G.R. CR HC No. 00356 MIN, which affirmed with modifications the Decision of the
Regional Trial Court (RTC) dated 18 August 2003, in Criminal Case No. 51,765-2003, 51,766-2003,
51,767-2003 and 51,768-2003. 2

The present case involves four (4) separate Amended Information charging accused-appellants
Manuelita Ampatuan (Manuelita), Warren Tumog (Warren) and Mastor Maruhom (Mastor), with
violation of R.A. No. 9165. The first Information, docketed as Criminal Case No. 51,765-2003,
charged accused-appellants Manuelita, Warren and Mastor with violation of Section 5, Article II of
R.A.No. 9165 or illegal sale of shabu.

The second Information, docketedas Criminal Case No. 51,766-2003, charged accused-appellant
Warren with violation of Section 12, Article II of R.A. No. 9165 or illegal possession of drug
paraphernalia.

The third Information, docketed as Criminal Case No. 51,767-2003, charged accused-appellant
Manuelita also with violation of Section 12, Article II of R.A. No. 9165 or illegal possession of drug
paraphernalia.

The last Information, docketed as Criminal Case No. 51,768-2003, charged accused-appellant
Manuelita with violation of Section 11 (3), Article II of R.A. No. 9165 or illegal possession of
prohibited drugs.

These four cases were tried jointly.

The facts as culled from the records are as follows:

Version of the Prosecution

On 29 January 2003, police officers apprehended Edward Dujon (Dujon) for violation of R.A. No.
9165, which resulted to his detention at the Philippine Drug Enforcement Authority (PDEA) in Davao
City pending prosecution of his case.

While in detention, on 8 February 2003, Dujon approached Police Chief Inspector Wilkins Villanueva
(Chief P/Insp. Villanueva), Regional Director of the PDEA to give information on the alleged drug
activity of accused-appellant Manuelita and her group who are based in Cotabato City, as one of his
suppliers of shabu,.

To verify Dujon’s claim, Chief P/Insp. Villanueva ordered Dujon to contact Manuelita. When Dujon
was ableto talk to Manuelita, he ordered three (3) jumbo packs of shabu, consisting of 50 grams per
packet, and asked that it be delivered the following day. Manuelita agreed.

The following day, 9 February 2003, Manuelita called Dujon, informing him that she could not deliver
the three (3) jumbo packs of shabu due to lack of supply and that she only had one (1) jumbo sachet
in her possession. Manuelita asked Dujon to postpone the delivery for another day. When Manuelita
again failed to deliver on 10 February 2003, Dujon called Manuelita and asked that she deliver the
one jumbo sachet of shabu, worth ₱70,000.00, in Davao City. Manuelita agreed.
At around six o’clock in the morning of 11 February 2003, Manuelita texted Dujon that she and her
men, accused-appellants Mastor and Warren, were already waiting for him inside a white pick-up
truck with plate number LBP 648 near Dimsum Diner on Guerrero Street, Davao City. Dujon
informed the PDEA about the arrival of Manuelita and her group. They immediately commenced the
entrapment operation. Dujon, driving his own car, proceeded to the Dimsum Diner, discreetly
followed by the PDEA operatives.

At the Dimsum Diner, Dujon and Manuelita’s group agreed to conduct the delivery at Jogue’s
Apartelle("Jogue’s") in Juna Subd., Matina, Davao. The PDEA operatives went ahead to Jogue’s to
secure the area.

At around nine o’clock in the morning, Dujon and Manuelita’s convoy arrived at Jogue’s. Dujon, after
getting a room, went to Room No. 3 together with Manuelita’s group. After a few minutes in Room
No. 3, they were informed to move to Room No. 2 as Room No. 3 had already been reserved.

In Room No. 2, the group tasted the sample shabu to test its quality. Satisfied with the quality, Dujon
asked Manuelita to wait for his assistant, who was already on his way to withdraw his money from
the bank. Manuelita then took out the headscarf she was clasping, opened it, and handed the jumbo
sachet with crystalline substance over to Dujon.

Meanwhile, when Dujon failed toupdate the PDEA as previously planned, PO1 Anthony Alpiz (PO1
Alpiz) peered through a window of Room No. 2. According to PO1 Alpiz, he clearly saw Manuelita
hand Dujon the jumbo sachet with crystalline substance. Upon seeing that the jumbo sachet with
crystalline substance was in Dujon’s possession, PO1 Alpiz, followed by other PDEA operatives,
rushed into Room No. 2.

After reading accused-appellants their constitutional rights, the PDEA operatives handcuffed them.
PO1 Alpiz confiscated the jumbo sachet with crystalline substance then proceeded to frisk accused-
appellants and saw a black canister with kettle tube inside hanging from Warren’s neck, which upon
examination, turned out to bea drug paraphernalia for sniffing shabu. On top of the table was
Manuelita’s headscarf. Upon inspection, PO1 Alpiz discovered four pieces of aluminum foil, a lighter,
and a small sachet containing a crystalline substance, which later tested positive for shabu. After
seizure of the illegal drugs and paraphernalia, the PDEA operatives brought the accused-appellants
to the PDEA headquarters for investigation.

According to the Forensic Report  executed by Chief P/Insp. Noemi Austero, Head of the Chemistry
3

Section:

SPECIMEN SUBMITTED:

"A"- White crystalline substance weighing 46.4490 grams contained in a transparent plastic.

"B"- White crystalline substance weighing 0.2284 gram[s] contained in a plastic sachet.

"C"- Three (3) pieces aluminum foil marked "C1" to "C3", each suspected to contain shabu residue.

"D"- One (1) black keyholder with test tube inside suspected to contain shabu residue. xxxx

FINDINGS:
Qualitative examination conducted on the above-mentioned specimens have POSITIVE result to the
test for Methamphetamine hydrochloride (shabu).

CONCLUSION

Specimens "A", "B", "C1" to "C3" and "D" contain Methamphetamine hydrochloride (shabu), a
dangerous drug.

Version of the Defense

Accused-appellants deny the charges against them. They narrate as facts the following:

At around one o’clock in the morning of 11 February 2003, Warren and Mastor set out for Davao
City, on board the pick-up truck of Warren’s mother, to get the cellular phone of Warren’s uncle.
While in Cotabato City, they passed by Manuelita, who was waiting for a ride to go to the bus
terminal going to Davao City for a medical check-up. Manuelita flagged down Warren and Mastor
and requested if she could ride with them to Davao City, to which the two acceded.

When they arrived in Davao City at around six o’clock in the morning, Manuelita invited Warren and
Mastor to have breakfast at Chowking near Victoria Plaza Mall.

After having breakfast, they proceeded to see Warren’s brother-in-law on Malvar Street to get his
uncle’s cellular phone. However, upon arrival, Warren discovered that the cellular phone has already
been sent to Cotabato City. Warren and Mastor then decided to go back to Cotabato City. When
they were about to drop-off Manuelita, Manuelita received a call from Dujon. Manuelita then asked
Warren and Mastor if they could drive her to Dimsum Diner to meet Dujon.

At the Dimsum Diner, Dujon invited the accused-appellants to his place at Jogue’s Apartelle to get
rest. When they arrived, they stayed in Room No. 3. Dujon told them to rest while he went outside to
get drinks. While they were making themselves comfortable, Warren noticed cigarettes, plastic
sachets and aluminum foils on top of the table and inquired about it. Manuelita informed Warren that
Dujon was a big time drug pusher in Davao City. When Dujon arrived, he placed the drinks on top of
the table and called somebody in his phone. After making a call, Dujon told the accused appellants
to transfer to Room No. 2 because Room No. 3 was already reserved. Dujon then borrowed
Manuelita’s headscarf, wrapped it over the shabu and drug paraphernalia, brought the headscarf to
Room No. 2, and placed it on top of the table.

Inside Room No. 2, Dujon asked accused-appellants to taste the shabu, boasting its fine quality. The
accused-appellants initially declined, but Dujon was very insistent. Because of ‘pakikisama’, the
accusedappellants all sniffed the shabu. Feeling nervous, Warren and Mastor decided to go out of
the room. However, before opening the door, somebody knocked. When Dujon opened the door, the
police barged inside and arrested them.

Upon entering a not guilty plea to all the four sets of Information and after trial, the trial court ruled in
the following:

Wherefore, the Court finds and so rules that:

(1) In Criminal Case No. 51,765-2003, the three (3) accused Manuelita Gonzales y
Ampatuan, 47 years old, married, Filipino, a resident of 111 Sinsuat Avenue, Cotabato City,
Warren Samparado Tumog, 30 years old, married, Filipino, a resident of 18 Salisa Street,
 Cotabato City, and Mastor Sarip Maruhom, 36 years old, married, Filipino, a resident of
Macapagal Street, Cotabato City, are hereby all found GUILTY beyond reasonable doubt,
and are CONVICTED of the crime for Violation of Section 5, Article II of Republic Act No.
9165. Each of them is hereby imposed a penalty of DEATH and a fine of SEVEN MILLION
PESOS (₱7,000,000.00) EACH with all the accessory penalties corresponding thereto
including absolute perpetual disqualification from any public office for Mastor Sarip Maruhom
and Warren Samparado Tumog;

(2) In Criminal Case No. 51,766-2003 Warren Samparado y Tumog, 30 years old, married,
Filipino, a resident of 18 Salisa Street, Cotabato City, is hereby found GUILTY beyond
reasonable doubt, and is CONVICTED for the crime of Violation of Section 12, Paragraph
(3), Article II of Republic Act No. 9165. He is hereby imposed a sentence of
IMPRISONMENT of FOUR (4) YEARS and a fine of FIFTY Thousand Pesos (₱50,00.00)
with all the accessory penalties corresponding thereto including absolute perpetual
disqualification form any public office;

(3) In Criminal Case No. 51,765-2003, Manuelita Gonzales y Ampatuan, 47 years old,
married, Filipino, a resident of 111 Sinsuat Street, Cotabato City, is hereby found GUILTY
beyond reasonable doubt, and CONVICTED of the crime for Violation of Section 12,
Paragraph (3), Article II of Republic Act No. 9165. She is hereby imposed a sentence of
IMPRISONMENT of FOUR (4) YEARS and a fine of FIFTY THOUSAND PESOS
(₱50,000.00) with all the accessory penalties corresponding thereto and;

(4) In Criminal Case No. 51,768-2003, Manuelita Gonzales y Ampatuan, 47 years old,
married, Filipino, a resident of 111 Sinsuat Avenue, Cotabato City, is hereby found GUILTY
beyond reasonable doubt, and CONVICTED of the crime for Violation of Section 11,
Paragraph (3), Article II of Republic Act No. 9165. She is hereby imposed a sentence of
IMPRISONMENT of TWENTY (20) YEARS and a fine of FOUR HUNDRED THOUSAND
PESOS (₱400,000.00) with all the accessory penalties corresponding thereto.

SO ORDERED. 4

On appeal to the CA, the CA affirmed with modifications the decision of the trial court. The
dispositive portion of the decision reads:

WHEREFORE, the appealed Decision of the Regional Trial Court, Branch 9 in Davao City finding
appellants Manuelita Ampatuan, Mastor Sarip and Warren Tumog for Violation of Republic Act No.
9165 is AFFIRMED WITH MODIFICATIONS that [a] in Criminal Case No. 51,765-2003, appellants
are sentenced to suffer the penalty of life imprisonment and to pay a fine of₱500,000.00 each; [b] in
Criminal Case No. 51,766-2003, appellant Warren Tumog is sentenced to suffer the indeterminate
penalty of imprisonment ranging from six (6) months and one (1) day, as minimum, to two (2) years,
as maximum and to pay a fine of ₱50,000.00; [c] in Criminal Case No. 51,767-2003, appellant
Manuelita Ampatuan is sentenced to suffer the indeterminate penalty of imprisonment ranging from
six (6) months and one (1) day, as minimum, to two (2) years, as maximum, and topay a fine of
₱50,000.00; and [d] in Criminal Case No. 51,768-2003, appellant Manuelita Ampatuan is sentenced
to suffer an indeterminate penalty of imprisonment ranging from twelve (12) years and one (1) day,
as minimum, to fifteen (15) years, as maximum, and to pay a fine of ₱400,000.00.

SO ORDERED. 5

We deny the appeal.

Elements of Illegal Sale of ShabuDuly Established

The elements necessary for the prosecution of the illegal sale of drugs are as follows: (1) the identity
of the buyer and the seller, the object and the consideration; and (2) the delivery of the thing sold
and payment therefor.  The prosecution, to prove guilt beyond reasonable doubt, must present in
6

evidence the corpus delictiof the case. The corpus delictiis the seized illegal drugs.

The duty of the prosecution is not merely to present in evidence the seized illegal drugs. It is
essential that the illegal drugs seized from the suspect is the very same substance offered in
evidence in court as the identity of the drug must be established with the same unwavering
exactitude as that required to make a finding of guilt. 7

This Court is convinced that the prosecution has sufficiently discharged its burden to establish the
elements in the illegal sale of shabu. The prosecution was able to establish the (1) identity of
accused-appellants as the sellers, and the buyer, Dujon; and (2) the object of the transaction, which
is the jumbo sachet of shabu, weighing 46.4490 grams; and the delivery of the sold illegal shabuto
Dujon, the poseur-buyer.

The absence of marked money does not run counter to the presented proof of illegal sale of
shabu.  Lack of marked money is not an element to the crime of illegal sale of shabu.  The marked
1âwphi1
8

money used in the buy-bust operation, although having evidentiary value, is not vital to the
prosecution of the case. It is merely corroborative in nature. What is material to the prosecution of
illegal sale of dangerous drugs is the proof that the illegal sale actually took place, coupled with the
presentation in court of the corpus delictias evidence.  In the case at bar, the prosecution duly
9

established both.

Relative to the required proof of anunbroken chain of custody of the seized illegal shabuand
shabuparaphernalia, the parties agreed to stipulate on the relevant testimony of the witnesses, the
requestfor laboratory examination, machine copy blotter, inventory, photographs, and affidavits, all
attesting to the fulfillment of the requirement.  Indeed, the defense never raised as defense any
10

break in the chain of custody of the seized shabu and drug paraphernalia.

The accused-appellants accuse the PDEA operatives of instigation. They submit that Dujon, as the
principal witness for the prosecution and poseur-buyer, lacks credibility, because heis engaged in
the illegal sale of shabu.

It is elementary that entrapmentand instigation are different. In instigation, the instigator induces the
would-be-defendant into committing the offense, and himself becomes a co-principal. In entrapment,
the means originates from the mind ofthe criminal. Otherwise stated, the idea and the resolve to
commit the crime come from the criminal. While in instigation, the law enforcer conceives the
commission of the crime and suggests the same to the accused who adopts the idea and carries it
into execution. 11

While it is true that it was Dujon, who initiated the illegal sale, it does not disprove the fact of illegal
sale and habitual activity of illegal sale of shabuof accused-appellants: the accused-appellants
brought the illegal shabuall the way from Cotabato to Davao, and handed the same to Dujon.
Evidently, the accused-appellants voluntarily resolved to commit the crimes as charged. Indeed,
what transpired in the instant case was a legitimate buybust operation and not instigation.
Furthermore, the defense’s mere denial of the charges and allegations of instigation and frame-up
cannot prevail over the clear and unequivocal pieces of evidence presented by the prosecution. We
are not unaware of the common defenses of frame-up or instigation by police officers in illegal drugs
cases. However, because instigation and frame-up as a defense can easily be concocted and
fabricated, they are given little evidentiary value.
12

Accused-appellants were arrestedduring a buy-bust operation, in flagrante delicto. Thus, unless

there is clear and convincing evidence that the arresting officers have ill-motive, the presumption of
regularity shall prevail. The defense has not adduced any such evidence.

The qualification and credibility ofDujon as a principal witness cannot be assailed. The law has
specifically provided for the immunity of informants from prosecution and punishment. Section 33,
Article II of R.A. No. 9165 provides:

Section 33. Immunity from Prosecution and Punishment. – Notwithstanding the provisions of Section
17, Rule 119 of the Revised Rules of Criminal Procedure and the provisions of Republic Act No.
6981 or the Witness Protection, Security and Benefit Act of 1991, any person who has violated
Sections 7, 11, 12, 14, 15, and 19, Article II of this Act, who voluntarily gives information about any
violation of Sections 4, 5, 6, 8, 10, 13, and 16, Article II of this Act as well as any violation of the
offenses mentioned if committed by a drug syndicate, or any information leading to the whereabouts,
identitiesand arrest of all or any of the members thereof; and who willingly testifies against such
persons as described above, shall be exempted from prosecution or punishment for the offense with
reference to which his/her information of testimony were given, and may plead or prove the giving of
such information and testimony in bar of such prosecution: Provided,That the following conditions
concur:

(1) The information and testimony are necessary for the conviction of the persons described
above;

(2) Such information and testimony are not yet in the possession of the State;

(3) Such information and testimony can be corroborated on its material points;

(4) the informant or witness has notbeen previously convicted of a crime involving moral
turpitude, except when there is no other direct evidence available for the State other than the
information and testimony of said informant or witness; and

(5) The informant or witness shall strictly and faithfully comply without delay, any condition or
undertaking, reduced into writing, lawfully imposed by the State as further consideration for
the grant of immunity from prosecution and punishment.

Provided, further, That this immunity may be enjoyed by such informant or witness who does not
appearto be most guilty for the offense with reference to which his/her information or testimony were
given: Provided, finally, That there is no direct evidence available for the State except for the
information and testimony of the said informant or witness.

The allegation that Dujon is engaged in illegal sale, indeed even the fact that Dujon is a detainee
charged with violation of the law is not a disqualification from immunity since such is not equivalent
to a previous "conviction of a crime involving moral turpitude."

Dujon, having all the qualifications and none of the disqualifications under the law, is eligible for
immunityfrom prosecution. While Dujon was part of the entrapment, the sale and possession of
dangerous drugs were proven solely by Dujon’s testimony but largely and importantly by the
testimony of the apprehending authorities and by the admitted documents.
WHEREFORE, We AFFIRM the Decision of the Court of Appeals in CA-G.R. CR-HC No. 00356-MIN
dated 9 October 2007 as to the imposable penalty. Thus:

1. Criminal Case No. 51,765-2003, accused-appellants, Warren Tumog and Mastor

Maruhom are sentenced to suffer the penalty of life imprisonment and to pay a fine of
₱500,000.00 each;

2. Criminal Case No. 51,766-2003, accused-appellant Warren Tumog is sentenced to suffer

the indeterminate penalty of imprisonment ranging from six (6) months and one (1) day, as
minimum, to two (2) years, as maximum and to pay a fine of ₱50,000.00;

SO ORDERED.

G.R. No. 131925               March 9, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
DARIO CABANAS CUAL, and DARIO MARANAN VILLOCENO, accused-appellants.

DECISION

GONZAGA-REYES, J.:

In an information dated February 28, 1994, accused-appellants Dario Cabanas Cual and Dario
1 

Maranan Villoceno were charged with the crime of murder before the Regional Trial Court of
Cagayan de Oro City, Branch 20. The information reads as follows:

"That on or about February 26, 1994 at more or less 9:00 o’clock in the evening, near NHA,
Balulang, Cagayan de Oro City, Philippines, and within the jurisdiction of the Honorable Court, the
above-named two (2) accused, with deliberate intent to kill, evident premeditation and treachery,
conspiring, confederating and, mutually helping with one another, armed with a sharp bolo, did then
and there willfully, unlawfully and feloniously attack, assault and wound one Ramil Macasalhig
Sabturani by then and ther suddenly and abruptly hacking and stabbing said victim with the use of
accused’s said bolo, which directly caused said victim’s instantaneous death at the scene of the
crime due to ‘shock due to hemorrhage due to multiple hacking wounds’, to the great damage and
prejudice to the injured party, his aggrieved family as well.

Accused’s commission of the above felony was attended by the aggravating circumstance of
superior strength.

Contrary to Article 248 in relation to Article 14, Revised Penal Code."

Upon arraignment, the two accused-appellants pleaded not guilty and thereafter, trial on the merits
ensued.
To establish conviction, the prosecution anchored its case on the testimonies of four witnesses,
namely: Leodivico Caayao, Amy Sabturani, Dr. Jerry Abroguena, and SPO1 Vicente Apag.

The first witness, Leodivico Caayao, a twenty-year old trisikad driver, testified that on February 26,
1994 at around 9:00 in the evening, he was sitting in his trisikad watching the television inside a
store in Balulang, Cagayan de Oro City when he noticed a commotion taking place nearby. He 2 

turned to see what the commotion was about and saw accused-appellant Dario Villoceno and the
victim, Ramil Sabturani, grappling for the possession of a steel pipe. The two were two (2) arms
length away from him. 3

While the two were grappling for the possession of the steel pipe, he saw accused-appellant Dario
Cual arrive at the scene and hack Ramil Sabturani with a bolo. Thereafter, Sabturani ran towards his
4 

trisikad and attempted to drive it. Ramil Sabturani wasonly able to make a turn on the trisikad before
he was caught by Cual. Cual then repeatedly hacked Sabturani with the bolo while the latter was
inside the trisikad. He heard the victim plead for mercy and say "that is enough because it was only
5 

a little trouble and you pity me." He then saw Cual slam the victim inside the trisikad and thereafter
6 

Cual walked away. At the time when Cual was hacking the victim inside the trisikad, he was about
four meters away from the incident. When he left the scene of the crime to talk with his employer,
7 

Ramil Sabturani was still breathing.

On cross-examination, he stated that he was not able to see how the commotion started as he only
turned his attention to the incident while Dario Villoceno and Ramil Sabturani were already grappling
for the possession of the steel pipe. He likewise recalled seeing something at the tip of the steel pipe
8 

although he was not sure whether it was a pointed object.

Amy Sabturani, the widow of the victim, for her part, recalled that on the night of February 26, 1994,
at around 9:00 p.m., her late husband asked permission from her to buy cigarettes. After a while, a
9 

certain Julie Sison informed her that her husband was ganged up upon and so she went outside to
check up on her husband. She was shocked to see her husband lying face down with a number of
wounds on his back. It was her brother-in-law who brought her husband to the hospital as she was
still in shock. 10

She disclosed that her late husband was employed with G&P Builders at the time of his death with a
weekly average income of P2,500.00. On account of her husband’s death, she testified that she
11 

incurred twenty five thousand pesos (P25,000,00) for the casket, the vigil, and other incidental
expenses. When asked whether her grief could be reduced to monetary terms by way of damages,
12 

she decided to leave the same to the discretion of the court. As to the motive behind the killing, she
opined that it must have been work-related and that the accused-appellants pretended to be
plumbers. Thus, they were able to take over the contract which was supposed to be for her
husband. 13

On cross-examination, she admitted that she did not actually see how the incident happened. She
likewise stated that the receipts for the expenses she incurred were in the possession of her brother-
in-law.
14

Dr. Jerry Abroguena, the physician who conducted the post-mortem examination of the victim,
testified that the victim suffered a total of twenty-one hacking and stab wounds on different parts of
his body. He opined that the instrument probably used in the hacking and stabbing of the victim was
a sharp-bladed weapon like a bolo. He explained that all the wounds sustained by the victim
15 

contributed to his demise and that not one of the wounds, taken alone, will cause the death of the
victim. In this regard, he pointed out that the cause of death of the victim was shock due to
hemorrhage due to multiple hack wounds. He further noted that the wounds on the back of the
16 

victim could have been inflicted while he was lying down or in the prone position. 17

On cross-examination, he speculated that there was probably a struggle between the victim and his
assailant as there was a wound on his left hand. He also stated that there were instances when the
victim was facing the assailant due to the presence of wounds at his front. 18

The last witness for the prosecution, SPO1 Vicente Apag, testified that on the evening of February
26, 1994 at about 9:00 p.m., he was on duty at the Carmen Police Precinct when he received a
report that someone was killed in Balulang, Carmen, Cagayan de Oro City. Upon receipt of the
19 

report, several policemen left the precinct to investigate the matter and when they returned, they
brought with them accused-appellant Dario Cual so that the incident could be blottered. Afterwards,
accused-appellant Cual was brought to the Maharlika Rehabilitation Center. With respect to
20 

accused-appellant Dario Villoceno, he stated that he was brought to the precinct later that night. He
also identified the bolo which was allegedly used in the killing of Ramil Sabturani and which was
turned over to him by the apprehending officer.

On cross-examination, he stated that he was not the one who went to investigate the incident in
Balulang, Cagayan de Oro City and that he based his report only on the testimony of those who
responded to the call and on the testimony of witness Caayao. He further testified that he did not
21 

investigate the accused Dario Villoceno when he came in and he just asked the apprehending officer
if Villoceno had anything to do with the killing. He stated that he could not remember whether
accused-appellant Villoceno had injuries when he was brought to the precinct but he recalled the
said accused telling him the following morning that he had some contusions and bruises. When 22 

asked whether he knew whether accused-appellant Cual was pursued or whether he surrendered,
he stated that he was only told that the accused was apprehended. He was not told whether the said
accused voluntarily surrendered or whether the latter was pursued by the apprehending officers. 23

The defense, for its part, introduced the testimonies of the two accused-appellants to support their
contention that they were innocent of the crime charged against them.

Accused-appellant Dario Villoceno first narrated the events which led to the killing incident. He
testified that two days before the incident or on February 24, 1994, at around 4:00 in the afternoon,
the victim Ramil Sabturani approached him and challenged him to fight while he was eating his
snack near the house which he was working on in Balulang, Cagayan de Oro City. He admitted that 24 

he and the victim often worked together as sub-contractors. He surmised that the reason the victim
was angry with him was because the project engineer had given him a task that was originally
assigned to the victim but which had been delayed. He did not accept the challenge and instead he
25 

simply stepped back, which prompted the victim to throw stones at him. He was able to evade the
attack and afterwards, he ran towards the house he was working on while he saw the victim run
towards the house of a certain Julie Sison. He surmised that the victim was looking for a weapon at
this time as he heard somebody shout "do not do that." When the victim emerged from the house, he
again threw stones at accused-appellant and his companion, the other accused Dario Cual. They 26 

then retaliated by also throwing stones at the victim but they were not able to hit him. Afterwards, the
victim went home but he returned soon thereafter brandishing two knives. The victim commenced
hurling stones at them but again they were not hit. They then ran away from the victim but not before
seeing the victim being disarmed by the guard of the NHA Subdivision. They then went back to the
27 

house where they were staying in.

On that same day, at around 9:00 in the evening, Ramil Sabturani, his wife and a certain Rey Ligan
threw stones at their house and shouted at them to go down. Instead of confronting the victim,
accused-appellants decided to hide inside their house. Eventually, the group of the victim stopped
their stone-throwing as the accused-appellants did not retaliate or answer back at them . They were
28 

not able to report the incident to the police the following day as the victim and Rey Ligan were
waiting for them. They were only able to report the incident and to have the same blottered at around
10:00 a.m. of February 26, 1994. They were then told that they should clear things up with the
Barangay Captain of Balulang, Cagayan de Oro City but they were unable to do so as it was a
Saturday and the offices were closed. 29

Later that day, at around 8:00 in the evening, he, together with Dario Cual, decided to work overtime
at their place of work. However, when they were about fifteen (15) meters away from their place of
work, Ramil Sabturani and Rey Ligan ran after them. Ramil Sabturani was armed with a lead pipe.
They ran away from their pursuers but eventually, Ramil Sabturani was able to catch up with him.
Ramil Sabturani then proceeded to hit him with the lead pipe. He recounted that he was hit on left
shoulder, right arm, forehead, and left jaw and that he fell down after being hit. Once he fell down,
his companion, accused-appellant Dario Cual, approached and helped him by hacking Ramil
Sabturani with a bolo. He explained that Dario Cual brought a bolo with him as they were going to
use it in rendering overtime work at the house they were building. He was not able to clearly see
30 

what happened to Ramil Sabturani afterwards as he immediately proceeded home after he stood up.
The accused Cual also followed him to his house a while later but afterwards, Cual told his wife that
he was going to surrender. Cual then immediately left the house.

A policeman later arrived at his house and brought him to the police station where he and Cual were
both investigated. Initially only Cual was brought to the Maharlika Center as the arresting officer
stated that he had nothing to do with the incident. However, upon the prodding of a certain Engineer
Eleno Dingue, the cousin of the victim, he was likewise detained. 31

On cross-examination, accused-appellant Villoceno explained that the bolo Cual was carrying was to
be used for forming the wood for mixing the cement. At that time only Cual was carrying a bolo, as
the work they were doing did not require a good finish. He likewise testified that it was the victim
32 

who carried a lead pipe while his companion did not carry anything. Consequently, it was the victim
who beat him up with the lead pipe. He did not know what the latter’s companion was doing while
this was happening. He likewise stated that the accused Cual helped him by hacking Ramil
Sabturani with the bolo he was carrying. He further stated that once the attention of Ramil Sabturani
was on Dario Cual, he stood up slowly and left while the two were still fighting. Before leaving the
33 

scene, he stated that he saw the victim ride a trisikad and attempt to bump Dario Cual.

The other accused, Dario Cual, corroborated the testimony of Dario Villoceno as to the events that
led to the killing incident including the challenge made by the victim to his co-accused and the stone-
throwing incidents. As to the reason for these confrontations, he stated that Villoceno and the victim
had a previous quarrel regarding a certain plumbing job which was given to Villoceno by the project
engineer.34

Dario Cual had a different version as to the events which happened on February 26, 1994. He
testified that on that date at around 8:00 in the evening, he and Villoceno decided to render some
overtime work. On their way to work, they saw the victim and Rey Ligan run towards them. They
tried to run away but Villoceno was caught by Ramil Sabturani and beaten with a lead pipe. After he
35 

saw Villoceno being hit with the lead pipe, he approached the two and told Ramil Sabturani to stop
what he was doing. Thereafter, Ramil Sabturani faced him and tried to stab him with the lead pipe
which had a knife at the other end. The victim kept on trying to stab him while he kept on moving
backward. When his back was against the wall, he hacked the victim on the head with the bolo he
was carrying. Afterwards, the victim ran towards a parked trisikad and rode on it. The victim then
36 

attempted to run over him but he was only hit by the steering wheel of the vehicle. Thereafter, he
hacked the victim again although, he could not remember the exact number of times he was able to
hit the victim. He denied that he pursued the victim when the latter ran to the trisikad and he
37 

maintains that he stood his ground and that it was the victim who went to him. 38

After the incident, he walked towards his house where he met his wife who was already crying
because of the incident. When they reached their house, he talked with his wife and told her he was
going to surrender. He was not able to reach the police station as he met the policemen on the way
39 

to the precinct at Balongis. When the policemen got off their vehicle, he gave them his bolo and he
told them that he was going to surrender. 40

On 25 September 1996, the court a quo rendered its questioned decision the dispositive portion of
which states:

"In view of the foregoing observations and deliberate perception of this court, this court is morally
convinced that the guilt of the two (2) accused was duly established and proved by the prosecution
beyond reasonable doubt over the crime charged in the information and as such the accused DARIO
CUAL is hereby sentenced to suffer the penalty of imprisonment of RECLUSION PERPETUA for not
being a heinous crime. The other accused DARIO VILLOCENO is likewise found guilty of the crime
herein charged as an accomplice and he is hereby sentenced to the penalty of RECLUSION
TEMPORAL which is the next lower in degree to that of reclusion perpetua under Art. 52 in relation
to Art. 27 of the Revised Penal Code in consummated felonies.

Both accused are further condemned, jointly and severally, to pay to the heirs of the victim the
amount of Fifty Thousand (₱50,000.00) Pesos for the death of Ramil M. Sabturani and the further
sum of ₱100,000.00 for actual and moral damages plus costs.

SO ORDERED." 41

The trial court was of the impression that the prosecution’s version of the events and witnesses was
more credible than those of the defense. It struck down appellant’s tale of self-defense particularly of
the contention of the defense that the victim was the aggressor and that he was armed with a lead
pipe. Moreover, the court stated that the presence of twenty-one (21) stab wounds could not have
42 

been inflicted without the conspiracy and mutual participation of the two accused-appellants.

The Court held that the killing was qualified to murder in this wise:

"The several stab wounds received by the victim which is beyond the normal impulse of a person
who is attacked has rendered the victim so helpless and unable to defend himself from the superior
strength abusively applied by the accused Dario Cual thus qualifying the present case to the crime of
Murder punishable and defined under Art. 248 of the Revised Penal Code as amended.

Both accused never denied that the cause of the death of the victim was the twenty-one (21) stab
wounds inflicted by Dario Cual on the person of Ramil Sabturani during the incident. Evidence was
clearly shown that Dario Cual suddenly stabbed the victim with a bolo with such tenacity and
persistence that the presence of twenty-one (21) stab wounds amounts to abuse of superior strength
thereby employing means to weaken the defense of the victim who was then unarmed." 43

With respect to accused-appellant Dario Villoceno, the court was convinced that he was an
accomplice to the murder as his act of grappling with the victim for the possession of a lead pipe
gave accused-appellant Dario Cual the "necessary inspiration and impetus in consummating the act
of murder."44
In this appeal accused-appellants raise the following assignment of errors:

I.

THE COURT A QUO ERRONEOUSLY CONVICTED THE ACCUSED-APPELLANTS OF

THE CRIME OF MURDER NOTWITHSTANDING THE FACT THAT THE EVIDENCE ON
RECORD CLEARLY DISCLOSE THAT THE CRIME COMMITTED WAS ONLY HOMICIDE.

II.

THE COURT A QUO GRAVELY ERRED IN QUALIFYING THE KILLING TO MURDER ON

THE BASIS OF THE AGGRAVATING CIRCUMSTANCE OF ABUSE OF SUPERIOR
STRENGTH CONSIDERING THAT THE SAME WAS NEVER ALLEGED IN THE
INFORMATION.

III.

THE COURT A QUO ERRED IN NOT APPRECIATING THE MITIGATING

CIRCUMSTANCES OF VOLUNTARY SURRENDER, INCOMPLETE SELF-DEFENSE AND
LACK OF INTENT TO COMMIT SO GRAVE A WRONG IN FAVOR OF THE ACCUSED
DARIO CUAL.

IV.

ACCUSED-APPELLANT SHOULD NOT HAVE BEEN CONVICTED AS AN ACCOMPLICE

BUT SHOULD HAVE BEEN ACQUITTED. 45

We will first take up the liability of accused-appellant Dario Cual.

A cursory analysis of the arguments offered by accused-appellant Cual in his appellant’s brief shows
that he is praying, not for his acquittal, but that he be convicted only of homicide and thus be made
to suffer a reduced penalty corresponding thereto. Accused-appellant Cual admits that he killed the
victim and the force he used in doing so was excessive. However, accused-appellant argues that the
evidence on record cannot sustain the conclusion that murder had indeed been committed
considering that no qualifying circumstance was established by the prosecution to qualify the killing
to murder.

There is merit in accused-appellant’s plea.

In order to qualify the killing to murder, the prosecution must prove that the killing was attended by
any of the qualifying circumstances enumerated in Article 248 of the Revised Penal Code, as
amended. Moreover, the prosecution is necessarily limited by the allegations in the complaint as to
the qualifying circumstances that attended the killing of Ramil Sabturani, namely evident
premeditation, treachery, and abuse of superior strength. 46

To arrive at a conviction, the prosecution principally relied on the testimony of the alleged
eyewitness, Leodico Caayao who testified as follows:

Q: And while you were watching TV, can you recall if there was any unusual incident that happened
that evening?
A: There was.

Q: And tell the court what was that unusual incident?

A: There were two persons grappling for the possession of the steel pipe.

Q: And how far were these two persons from you whom you said was grappling for the possession
of the steel pipe?

A: About two arms length.

Q: And did you recognize these two persons whom you said was grappling for the possession of the
steel pipe?

A: Yes, sir.

Q: Who were these two persons?

A: Ramil and Dario Villoceno.

XXX

Q: When you saw Ramil Sabturani and Dario Villoceno grappling for the possession of the steel
pipe, what happened next?

A: Another person arrived?

Q: And who was this person that arrived?

A: Dario Cual.

XXX

Q: What happened when Dario Cual arrived at the scene?

A: He hacked Ramil.

Q: What weapon did you see was used by Dario Cual in hacking Ramil?

A: A bolo.

Q: Did you see what part of the body of Ramil Sabturani was hacked by Dario Cual?

A: I did not see anymore.

Q: What happened after Ramil Sabturani was hacked by Dario Cual with a bolo?

A: Ramil was able to run to my trisikad.

Q: And when Ramil reached your trisikad, what did he do?

A: He attempted to drive my trisikad.

Q: Was he able to drive away your trisikad?

A: He was able to only make a turn.

Q: Why was he able to make only a turn of your trisikad?

A: Because he was then chased upon and caught.

Q: Caught by whom?

A: Dario Cual.

Q: What happened when Dario Cual caught Ramil?

A: He then hacked successively Ramil Sabturani.

Q: Using the same bolo?

A: Yes, the same bolo.

Q: Where was Ramil hacked by Dario Cual, inside your trisikad?

A: Inside.

XXX

Q: Did you hear anything coming from Dario Cual or from Ramil Sabturani while he was being
hacked by Dario Cual?

A: Yes, sir.

Q: What did you hear and from whom did you hear?

A: I heard Ramil asking for pity or mercy.

Q: What exactly were the words uttered by Ramil Sabturani pleading for mercy from Dario Cual?

A: And he said, that is enough because that was only a little trouble and you pity me.

Q: Did you hear if Dario Cual also replied for a plea of mercy from Ramil Sabturani?

A: None. 47

From the above narration, it is clear that evident premeditation cannot be appreciated. For evident
premeditation to aggravate a crime, there must be proof, as clear as the evidence of the crime itself,
of the following elements: (1) the time when the offender determined to commit the crime; (2) an act
manifestly indicating that he clung to his determination; and (3) sufficient lapse of time, between
determination and execution, to allow himself to reflect upon the consequences of his act. As shown
48 

above, however, the prosecution failed to prove any element of this qualifying circumstance as their
only eyewitness merely testified on the actual commission of the crime. Where there is no showing
as to how and when the plan to kill was hatched or what time had elapsed before it was carried out,
evident premeditation cannot be considered to exist. 49

We likewise find that no treachery attended the killing. The requisites for appreciating alevosia in the
commission of a crime are: (1) at the time of the attack, the victim was not in a position to defend
himself; and (2) appellant consciously and deliberately adopted the particular means, methods or
forms of the attack employed by him. 50

In the instant case, although accused-appellant Dario Cual initially attacked the victim while the latter
was grappling for the possession of a lead pipe, this circumstance by itself does not amount to
treachery. For one, it cannot be said that the victim was not given any opportunity to defend himself.
As narrated by Leodivico Caayao, the victim was able to defend himself after the initial assault made
by Cual as he even managed to run away – without success however, - before Cual hacked him to
death. Moreover, there was absolutely no evidence produced by the prosecution which show that
accused-appellants consciously and deliberately employed this specific form of attack which would
especially and directly ensure its commission without impunity. The decision by accused-appeallant
51 

Cual to attack the victim could have been a product of impulsiveness or a spur of the moment
decision provoked by the struggle of the victim with his friend, accused Villoceno. Hence, it was
unlikely that he deliberated on the means to carry out his decision. 52

To summarize, the presence of treachery in the case at bench has not been proven as fully and
convincingly as the crime itself. The doubt must, therefore, be resolved in favor of the appellant. 53

With respect to the qualifying circumstance of abuse of superior strength, we likewise find that it is
not attendant under the circumstances. In order to appreciate this qualifying circumstance, there
must be evidence introduced that the two accused-appellants were physically stronger that the
victim and that they abused such superiority by taking advantage of their combined strength in order
to consummate the offense. In the case at bench, the prosecution failed to introduce any evidence
54 

as to the relative physical strength of the parties involved. In fact, the lone eyewitness to the incident,
Leodivico Caayao, was non-committal on this aspect:

"Atty. Merlas (to the witness)

Q: And this Sabtorani, you can recall is builded. Is it not?

A: Tall and slim. I could not tell correctly as to his height.

Q: When you say taller, between this accused Villoceno and the deceased Sabturani, who is taller?

A: Sabturani was taller.

Q: And, in fact, he was also bigger than the accused?

A: I did not see clearly because he was seated." 55

Moreover, the testimony of the eyewitness shows that at no point did the two accused-appellants
attack the victim simultaneously as it was only accused Cual who deliberately attacked the latter.
And even assuming that accused-appellant Cual was stronger than the victim, abuse of superior
strength still cannot be appreciated as there is no showing that accused-appellant deliberately
intended to take advantage of such superiority.

In sum, the prosecution failed to prove any of the aggravating circumstances alleged in the
information. As such, accused-appellant can only be convicted of the crime of homicide.

Accused-appellants next argue that the trial court should have appreciated in favor of accused Cual,
the mitigating circumstances of voluntary surrender, incomplete self-defense and lack of intent to
commit so grave a wrong.

We agree with the accused-appellants that the mitigating circumstance of voluntary surrender should
have been appreciated. As we have previously held, the following requisites must be proven for
voluntary surrender to be considered: (1) the offender had not actually been arrested; (2) the
offender surrendered himself to a person in authority; and (3) the surrender was voluntary. On this
point, accused-appellant testified as follows:

"Q: Now after the incident, can you tell us where did you proceed after that?

A: Yes, sir.

Q: Where?

A: After the incident I walked towards home and then before reaching the house I met my
wife who was already crying so I brought her home. But before we reached the house the
wife of Ramil Sabturani (i.e. the victim), Amy Sabturani, quarreled with my wife.

Q: Now, were you able to finally reach your house?

A: Yes, sir. When we reached home, I talked with my wife and then I told her since we
cannot do anything and it already happened, you just wait and stay here because I am going
to surrender.

Q: Before whom?

A: I wasn’t able to reach the police station but I met the policemen at Balongis.

Q: So, what did you do when you saw the policemen?

A: When they saw me they then alighted from their vehicle and then I gave then the bolo and
told then that I am going to surrender."
56

From this narration, it is evident that accused Cual’s surrender satisfied the above-mentioned
requisites. He had not been arrested as the police were, in fact, still looking for him to verify his
participation in the crime. Upon seeing the policemen, he immediately gave them his weapon and
told them that he was surrendering. Finally, his surrender was through his own volition as he was on
his way to the precinct when he was met by the police.
The Solicitor-General, in his Appellee’s Brief, disputes accused Cual’s statement that he voluntarily
surrendered by stating that it was only upon the arrival of the policemen at his house that he was
forced to go out of his house to surrender. However, we have examined the records carefully and
57 

we find no evidence to this effect. In fact, the policeman who actually arrested accused-appellant
Cual was supposed to be called to the witness stand but due to his failure to appear, despite
summons, the prosecution dispensed with his evidence. Verily, the mitigating circumstance of
voluntary surrender should properly be appreciated as the prosecution failed to dispute the same. 58

The Court does not, however, agree to the argument of accused-appellant Cual that he should also
benefit from the mitigating circumstances of lack of intent to commit so grave a wrong. The sheer
number of wounds, twenty-one in all, inflicted by the accused-appellant Cual on the body of the
victim brings forth in bold relief the intention of the accused to snuff out the life of the deceased, and
definitely negates any pretense of lack of intention to commit so grave a wrong. 59

The Court cannot likewise appreciate the privileged mitigating circumstance of incomplete self-
defense. Under Article 69 of the Revised Penal Code , in order to avail of the privileged mitigating
60 

circumstance of incomplete self-defense, accused-appellant must prove the existence of a majority

of the requisites for self-defense, namely: (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. 61

On this point, accused-appellant admits that the numerous hack and stab wounds found on the
victim negates complete self-defense. However, they argue that accused-appellant Dario Cual
should still be given the benefit of the said privileged mitigating circumstance considering that the
defense was able to prove aggression on the part of the victim and the lack of provocation on the
part of the defendant.

We do not agree.

Under prevailing law and jurisprudence, there can be no defense, complete or incomplete unless the
victim committed an unlawful aggression against the person defending. The testimony of witness
62 

Leodivico Caayao effectively negated any pretense that there was aggression on the part of the
victim as against accused Cual. The witness, who had no motive to fabricate his testimony, clearly
stated that the victim was locked in a struggle with accused Dario Villoceno when accused Cual
approached the victim and hacked him with the bolo. After the initial assault made by Cual, the
victim immediately ran from Dario Cual to go to a parked trisikad where he was immediately pursued
by Cual. At no instance did the witness see the victim attack or hit accused Cual. Thus, as proven
63 

by the prosecution, there was no unlawful aggression on the part of the victim Ramil Sabturani.

Moreover, even assuming that there was unlawful aggression on the part of the victim, such unlawful
aggression had already ceased when the victim ran away from accused Cual to a parked trisikad. At
this point, there was no longer any reason for accused-appellant Dario Cual to pursue the victim and
inflict more injuries. Once the unlawful aggression had ceased with the victim’s attempt to escape,
accused-appellant Dario Cual was no longer justified in pursuing the victim and inflicting the fatal
wounds.

In sum, accused-appellant Dario Cual should only be convicted of the crime of homicide with the
mitigating circumstance of voluntary surrender. Applying the benefit of the Indeterminate Sentence
Law , accused-appellant Dario Cual should be sentenced to an indeterminate sentence of six (6)
64 

years and one (1) day of Prision Mayor as minimum to twelve (12) years and one (1) day
of Reclusion Temporal as maximum.
We shall now look into the participation of accused-appellant Dario Villoceno in the crime. As stated
previously, the lower court convicted Dario Villoceno as an accomplice to the crime. It reasoned that
Villoceno deliberately grappled with the victim for the possession of a steel pipe and thus gave
accused Cual the necessary impetus and inspiration to consummate the deed. 65

Under current jurisprudence, in order that a person may be considered an accomplice, the following
requisites must concur: (1) community of design; that is, knowing the criminal design of the principal
by direct participation, he concurs with the latter in his purpose; (2) that he cooperates in the
execution of the offense by previous or simultaneous acts, with the intention of supplying material
and moral aid in the execution of the crime in an efficacious way; and (3) that there be a relation
between the acts and those attributed to the person charged as an accomplice. 66

The cooperation that the law punishes is the assistance knowingly rendered, which cannot exist
without the previous cognizance of the criminal act intended to be executed. It is therefore required
in order to be liable as an accomplice, that the accused must unite with the criminal design of the
principal by direct participation.
67 
1âwphi1

In the case at bench, there is nothing in the records which show that accused-appellant Villoceno
knew that accused Cual was going to hack Ramil Sabturani. Neither was it shown that accused-
appellant Villoceno concurred in the criminal design of his co-accused.

The only involvement of accused-appellant Cual in the incident was when he was engaged in a
struggle with the victim just before Villoceno made his initial attack on the victim. This circumstance
does not by itself show his unity with the criminal design of Villoceno. On this point, we are inclined
to believe his testimony that the struggle was not deliberate on his part and that, in fact, it was the
victim who initiated the struggle. The victim, who had just been deprived of a job opportunity by
accused-appellant Cual, surely had more reason to feel aggrieved and thus engage accused-
appellant Cual to a fight.

The fact that accused-appellant Cual immediately disengaged from his struggle with the victim after
Villoceno’s attack is yet another indication that he is innocent of the charge against him. Verily, if he
had indeed conspired with Villoceno, he would have continued to hold the victim and prevent him
from escaping until he expired from Villoceno’s attack.

The prosecution having failed to establish that there was community of design between accused
Villoceno and Cual, the former cannot be held liable as accomplice to the homicide. Accused-
appellant Dario Villoceno should therefore be acquitted of the charges against him.

The last issue to be resolved is the whether the heirs of the victim Ramil Sabturani are entitled to the
damages awarded by the trial court, namely ₱50,000.00 as death indemnity and ₱100,000.00 as
actual and moral damages. 68

We affirm the award of ₱50,000.00 to the heirs of Ramil Sabturani as this is in accord with current
jurisprudence. However, we note that the trial court erred in awarding to the heirs of the victim the
69 

lump sum of ₱100,000.00 as actual and moral damages. These are separate in nature and require
separate determination.

With respect to actual damages, according to Article 2199 of the New Civil Code, one is entitled to
adequate compensation only for such pecuniary loss suffered by him as he has duly proved.
Moreover, only expenses supported by receipts and which appears to have actually been expended
in connection with the death of the victim should be allowed for actual damages. In the case at
70 

bench, the wife of the victim testified that she spent the amount of P25,000.00 on account of the
death of her husband. However, she failed to produce any receipt to support these expenses as
71 

these were allegedly with her brother. Thus, we cannot take these expenses into consideration, as
72 

these are unsupported by any documentary evidence.

However, the heirs are entitled to damages for the loss of earning capacity of the deceased Ramil
Sabturani. The fact that the prosecution did not present documentary evidence to support its claim
for damages for loss of earning capacity of the deceased does not preclude recovery of said
damages. The testimony of the victim’s wife, Amy Sabturani, as to the earning capacity of her
73 

husband sufficiently establishes the basis for making such an award. It was established that Ramil
Sabturani was 24 years old at the time of his death in 1994. His average weekly income was
₱2,500.00. Hence, in accordance with the American Expectancy Table of Mortality that has been
74 

consistently adopted by the Court , the loss of his earning capacity is to be calculated as follows:
75 

Award for = 2/3 [80-age at time of death]x[gross annual income–80%(GAI)]

Lost earnings

= 2/3 [80-24] x [₱130,000.00 – 80%(₱130,000.00)]

= (37.3333) x (₱26,000.00)

=₱970,666.65

Finally, the heirs of the victim are likewise entitled to moral damages considering that the wife of the
deceased asked for it and testified that she experienced moral suffering. An award of ₱50,000.00 is
sufficient to compensate the heirs of the victim for the injuries to their feelings.
76

IN VIEW OF THE FOREGOING, judgment is hereby rendered modifying the judgment appealed
from.  As MODIFIED, the accused-appellant DARIO CUAL is found guilty of the crime of homicide
1âwphi1

as defined and penalized under Art. 249 of the Revised Penal Code and is sentenced to suffer an
indeterminate penalty of six (6) years and one (1) day of prision mayor as minimum to twelve (12)
years and one (1) day of reclusion temporal as maximum. He is likewise ordered to pay the heirs of
Ramil Sabturani the sum of ₱50,000.00 as civil indemnity for the latter’s death, the sum of
₱970,666.65 as compensation for lost earnings and the sum of ₱50,000.00 as moral damages.

Accused-appellant Dario Villoceno is hereby ACQUITTED on the ground that his guilt has not been
proven beyond reasonable doubt.

SO ORDERED.

G.R. No. L-29532             September 28, 1968

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MARIANO OANDASAN (Bulala Sur, Aparri, Cagayan), defendant-appellant.
Office of the Solicitor General for plaintiff-appellee.
Antonio Ma. Azurin for defendant-appellant.

SANCHEZ, J.:

Defendant's brief on appeal underscores one claimed error: the penalty imposed is incorrect.  1

The criminal complaint was for homicide. The charge was lodged with the Municipal Court of Flora,
Mountain Province. At the preliminary investigation in that court, the accused was arraigned,
pleaded "not guilty" to the charge.

The case was thereafter elevated to the Court of First Instance of Cagayan for trial on the merits.
There, a formal indictment for homicide was filed by the prosecuting attorney. Upon arraignment, the
accused — this time — pleaded guilty. Before sentence, he presented evidence to prove the
mitigating circumstances of incomplete self-defense and voluntary surrender, aside from the plea of
guilty.

Came the trial judge's decision of September 27, 1967. He ignored the appellant's plea of guilty as a
mitigating circumstance "in view of his former plea of not guilty before the municipal court of Flora,
Mt. Province." He did not take into account incomplete self-defense as a privileged mitigating
circumstance. He merely accorded defendant the benefits of provocation together with voluntary
surrender, as ordinary mitigating circumstances. He thus sentenced defendant for the crime of
homicide defined and penalized under Article 249 of the Revised Penal Code to an indeterminate
penalty of two (2) years, four (4) months and one (1) day of prision correccional as minimum, to
eight (8) years of prision mayor as maximum, with the accessories of the law. He further directed
defendant to indemnify the heirs of the deceased in the sum of P6,000.00 without subsidiary
imprisonment in case of insolvency, and to pay costs.

1. The accused argues that his plea of guilty should be considered in his favor. In this he receives an
assist from the Solicitor General.

It is to be conceded right at the outset that if an accused, charged with an offense cognizable by the
municipal court, pleads not guilty therein, and on appeal to the court of first instance, changes his
plea to that of guilty upon rearraignment, he should not be entitled to the mitigating circumstance of
confession of guilt. 2 The philosophy behind this rule is obvious. For, the spontaneous willingness of
the accused to admit the commission of the offense charged, which is rewarded by the mitigating
circumstance, is absent. 3 Indeed, if the rule were otherwise, an accused, who naturally nourishes the
hope of acquittal, could deliberately plead not guilty in the municipal court, and upon conviction and
on appeal to the court of first instance, plead guilty just so he can avail himself of the benefit of a
mitigating circumstance. 4 This cannot be countenanced. The accused should not be allowed to
speculate.

One feature of this case, however, takes it out of the reach of the principle earlier adverted to. The
municipal court before which the accused pleaded not guilty was only conducting a preliminary
investigation. It had no jurisdiction over the crime of homicide; it could not have rendered judgment
on the plea. It must elevate the case to the court of first instance — the court of competent
jurisdiction — even if the plea be that of guilty. For purposes of applying the mitigating circumstance
of confession of guilt, the plea of not guilty upon arraignment at preliminary investigation in the
municipal court is no plea at all.
Upon the other hand, we cannot just sweep away defendant's right to a preliminary investigation. It is
a statutory grant. It cannot be withheld. To do so would be to transgress constitutional due process.
Defendant herein was thus entitled to know if probable cause existed to require elevation of his case
to the court of first instance. Because, absent a probable cause, the case against him must be
dismissed. His plea of not guilty before the municipal court therefore may not be taken against him.

Thus it is, that the proper forum where a plea in mitigation may be presented is the court which has
jurisdiction to take cognizance of the case. Homicide, we repeat is the charge. The court having
original jurisdiction is the court of first instance. Defendant, accordingly, properly entered his plea of
guilty therein — with right to claim it as a mitigating circumstance. 1awphîl.nèt

By statute [Article 13(7), Revised Penal Code], a circumstance which mitigates penal liability is that
the accused "had voluntarily confessed his guilt before the court prior to the presentation of the
evidence for the prosecution." Otherwise, such voluntary confession should be ruled out in fixing the
sentence. 5

Here, the plea of guilty was made upon arraignment, certainly before trial was conducted. The
mitigating circumstance of voluntary confession of guilt before the court of first instance should be
counted in his favor.

2. The other argument defendant presses upon us is that the trial court should have appreciated the
privileged mitigating circumstance of incomplete self-defense.

The concept of justice thus espoused finds full support in the trial court's decision itself, viz:

The accused testified that he saw the deceased Quirino Duldulao chasing his son. Not
contented with that and not being able to catch the latter the said victim Quirino Duldulao
threw his wooden club at the son of the accused, but the accused's son was not hit. The
accused approached Quirino Duldulao and asked him why he was chasing the son and why
he threw the club.

Upon being asked, the deceased Quirino Duldulao instead of answering the accused
Mariano Oandasan clubbed the accused Mariano Oandasan, hitting him on the left shoulder.
The accused Mariano Oandasan stepped backward and remembering that he had a sharp-
pointed knife, he drew it. Again the deceased struck the accused on the head with the club,
so the accussed stabbed Quirino Duldulao on the front. The deceased sustained two
wounds, one at the epigastric region and the other on the right hand. 6

Once again, the Solicitor General joins the accused in ascribing error to the trial court when it
declared that the facts just recited merely show provocation by the deceased, a mitigating
circumstance under Article 13(4), Revised Penal Code. They say that those facts also clearly
demonstrate an act of unlawful aggression by the deceased as well as lack of sufficient provocation
on the part of the accused. There two circumstances, they submit, carve out a good case of
incomplete self-defense.7

Their submission induces approbation. It is borne out by the facts found below. The accused saw the
deceased Quirino Duldulao chasing the former's son. When the accused approached Duldulao and
asked him why he (Duldulao) was doing so, Duldulao hit the accused with a wooden club on the left
shoulder. The accused drew a sharp-pointed knife he had with him. Then, the deceased clubbed the
accused on the head, which prompted the latter to stab Duldulao on the front. As we see it, the only
element absent to exempt the accused totally from criminal liability under Article 11(1), Revised
Penal Code, is "[r]easonable necessity of the means employed to prevent or repel" the unlawful
aggression.

The privileged mitigating circumstance of incomplete self-defense is here present.

3. We now come to assess the penalty that should be imposed.

By the facts, the accused deserves the benefit of Article 69 of the Revised Penal Code. It provides:
"A penalty lower by one or two degrees than that prescribed by law 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 or
to exempt from criminal liability in the several cases mentioned in articles 11 and 12, provided that
the majority of such conditions be present. The courts shall impose the penalty in the period which
may be deemed proper, in view of the number and nature of the conditions of exemption present or
lacking."

And then, in view of the plea of guilty and voluntary surrender and the absence of any aggravating
circumstance, the accused is also entitled, as Article 64(5) of the same code commands, to a
"penalty next lower to that prescribed by law, in the period that it [the court] may deem applicable,
according to the number and nature of such circumstances." 1awphîl.nèt

From all this, the defendant prays, and the Solicitor General recommends, a two-degree reduction of
penalty. This is well taken.

In the past, this Court has found occasion in a number of instances to lower the penalty by one
degree 8 or two degrees 9 because of incomplete self-defense (with the concurrence of unlawful
aggression and lack of sufficient provocation, and absent a reasonable necessity of the means
employed), but without having to compute into the penalty other privileged mitigating circumstances.

What about incomplete self-defense coupled with a privileged mitigating circumstance, as in this
case?

In People vs. Lucero, 49 Phil. 160, 162, incomplete self-defense was accompanied by provocation, a
circumstance analogous to arrebato y obcecacion and youthfulness of the accused (19 years of age
at the time of the trial). This Court reduced the penalty for homicide by two degrees. People vs.
Jaurigue, 76 Phil. 174, 182-183, was a case of incomplete defense of honor attended by four generic
mitigating circumstances. The penalty for homicide was likewise lowered by two degrees. In People
vs. Maula (unreported), L-7191, October 18, 1954, this Court appreciated incomplete self-defense,
concurred in by minority of the accused as a privileged mitigating circumstance and by voluntary
surrender. The penalty of the accused for homicide was also brought down by two degrees.

The standard set down in the cases just discussed gives us the proper course to pursue: A two-
degree reduction of penalty — one degree, by Article 69, and another degree, by Article 64(5). It is
the most reasonable and just for the accused Mariano Oandasan.

4. The crime of homicide is penalized by Article 249 of the Revised Penal Code. The penalty therein
prescribed is reclusion temporal. Two degrees lower is prision correccional, the penalty imposable
by law in the period that the courts may deem applicable, "according to the number and nature" of
the mitigating circumstances. With the mitigating circumstances attendant, we feel that Oandasan's
penalty should be fixed within the medium period at two (2) years, four (4) months, and one (1) day.
Calling the Indeterminate Sentence Law into operation — whose applicability is based "upon the
penalty actually imposed in accordance with law and not upon that which may be imposed in the
discretion of the court" 10 — the minimum of the penalty then should be within the range of the
penalty next lower in degree, 11 i.e., arresto mayor, which we fix at four (4) months.

5. We cannot close this decision without putting in a good word for defendant's lawyer, Atty. Antonio
Ma. Azurin. Appointed counsel de officio below, he volunteered to prosecute defendant's appeal by
seeking a new appointment as such counsel on the appellate level. Conscientious and diligent in
championing defendant's rights below and on appeal, his actuations present an exemplary case of
devotion to duty. They are those of a worthy member of the Bar.

Upon the record as it stands, the lower court judgment rendered against the accused Mariano
Oandasan is hereby modified; and he is hereby sentenced to an indeterminate penalty of four (4)
months of arresto mayor as minimum, to two (2) years, four (4) months and one (1) day of prision
correccional as maximum, with the accessories of the law. In all other respects, the decision below is
affirmed.

No costs in this instance. So ordered.

THIRD DIVISION

G.R. No. 210810, December 07, 2016

RICARDO DEL POSO Y DELA CERNA, Petitioner, v. PEOPLE OF THE

PHILIPPINES, Respondent.

DECISION

PERALTA, J.:

This is to resolve the Petition for Review on Certiorari under Rule 45 of the Rules of
Court dated January 28, 2014 of petitioner Ricardo Del Poso y Dela Cerna seeking the
reversal of the Decision1 dated July 22, 2013 of the Court of Appeals (CA), which
affirmed the Decision2 dated July 1, 2011 of the Regional Trial Court (RTC), Branch 38,
Manila in Criminal Case No. 05-239429 convicting petitioner of violation of Section 10
(a) of Republic Act (R.A.) No. 7610.

The facts follow.

The victim, VVV3 was given by her biological mother to the petitioner when she was 7
years old and the latter then acted as her guardian. On September 10, 2005, when VVV
was 9 years old, petitioner ordered her to attend to petitioner's photocopying business.
While attending the business, VVV fell asleep. When petitioner saw VVV asleep, the
former became furious and laid VVV on top of an ironing board and placed a heated flat
iron on her. When VVV tried to evade the heat emanating from the flat iron, her
forehead, right elbow, left cheek, left buttock and back got burned. Thereafter,
petitioner got her down from the ironing board and ordered her to sleep. The following
morning, petitioner's wife saw the burns on VVV and told petitioner not to do it again.
Later on, VVV went to her Lola Ma. Luisa to watch TV and the latter, and several other
people, saw the burns prompting Lola Ma. Luisa to bring VVV to the Barangay Hall
where the incident was put on blotter. Thereafter, VVV was brought to the hospital and
then to the police station. Hence, an Information was filed against petitioner, which
reads as follows:  ChanRoblesVirtualawlibrary

That on or about September 10, 2005, in the City of Manila, Philippines, the said
accused, did then and there wilfully, unlawfully, and knowingly commit cruelty and
abusive acts upon VVV, a minor, 9 years old, by then and there injuring the said minor
on the forehead, right cheek, abdomen and at her right forearm with a hot flat iron,
inflicting upon her multiple 1st degree burns, which debases and demeans the intrinsic
worth and dignity of said VVV as a human being, an act prejudicial to her normal
growth and development, to her damage and prejudice.

Contrary to law.

The prosecution presented seven (7) witnesses, namely: Anielyn Barnes, the Social
Worker-on-case; SPO2 Susan Mendez of Station VI, the investigator; Redentor Torres,
a Barangay Kagawad; VVV, herself; Laura Delos Santos, Records Custodian of the
Ospital ng Maynila; Nanette Repalpa, a social worker who took custody of the victim;
and Dr. Martin Joseph Cabahog. VVV, during her testimony, also narrated the other
acts of physical abuse that petitioner had inflicted on her prior to the incident which
became the basis of the present case.

Petitioner, on the other hand, claimed that the incident happened accidentally.
According to him, on that particular day, he just came from work when he saw VVV
playing under a table and to teach her a lesson, he tried to scare her with a hot flat
iron. Petitioner was then not aware that VVV was hurt as there were no marks on her.
The marks only became evident the following morning. Petitioner claimed that he
applied medication on VVV's burns.

The RTC found petitioner guilty beyond reasonable doubt of violation of Section 10 (a)
of R.A No. 7610 in its Decision dated July 1, 2011, the dispositive portion of which
reads as follows:

WHEREFORE, premises considered, the Court finds that the prosecution has proven the
guilt of the accused beyond reasonable doubt from the crime of violation of Section 10
(a) of RA 7610, "The Special Protection of Children Against Child Abuse, Exploitation
and Discrimination Act" and hereby sentences Ricardo Del Poso y Cerna to suffer the
penalty of four (4) years, nine (9) months and eleven (11) days of prision
correccional, as minimum, to six (6) years, eight (8) months and one (1) day of prision
mayor, as maximum.

SO ORDERED. chanroblesvirtuallawlibrary

Petitioner filed his appeal with the CA and the latter court, in its Decision dated July 22,
2013, dismissed the same appeal and affirmed the Decision of the RTC, the dispositive
portion of which reads:  ChanRoblesVirtualawlibrary
WHEREFORE, premises considered, the appeal filed by appellant is hereby DENIED. The
Decision dated 1 July 2011 and Order dated 27 October 2011 RTC, (NCJR) Branch 38,
Manila in Crim. Case No. 05-239429 are AFFIRMED.

SO ORDERED.4

Hence, the present petition.

The grounds relied upon by petitioner are the following:

I. THE HONORABLE COURT OF APPEALS ERRED IN CONVICTING THE PETITIONER

WHEN THE MINOR CHILD-COMPLAINANT ADMITTED THAT SHE SUSTAINED THE
BURNS WHEN SHE TRIED TO EVADE THE HEATED IRON THAT (PETITIONER)
WAS HOLDING OVER HER WHILE LYING ON THE IRONING BOARD JUST TO
SCARE HER AS A WAY OF CHASTENING HER, WHICH THE COURT FOUND IN ITS
ASSAILED DECISION. [EQUALLY] OF WEIGHT, WHICH IT LIKEWISE FOUND AND
WHICH IT UNCEREMONIOUSLY DISREGARDED IS THE RELATION OF THE
PARTIES ESTABLISHED BY FATE.

II. ASSUMING THE HONORABLE COURT OF APPEALS IS CORRECT, IT ERRED WHEN

IT REFUSED TO APPRECIATE IN FAVOR OF THE PETITIONER THE MITIGATING
CIRCUMSTANCES OF NO INTENTION TO COMMIT SO GRAVE A WRONG AS THAT
COMMITTED DESPITE THE PARALLEL CASE OF PEOPLE V. ENRIQUEZ, 58 PHIL.
536 IN WHICH IT WAS HELD THAT TO BE PRESENT, PASSION AND
OBFUSCATION AND SUCH OTHER CIRCUMSTANCES ANALOGOUS THERETO.

III. HENCE, THE HONORABLE COURT OF APPEALS ERRED IN NOT MODIFYING THE
SENTENCE OF THE PETITIONER TO ONE DEGREE LOWER. 5

Petitioner insists that the CA erred in convicting him when the minor admitted that she
sustained the burns when she tried to evade the heated iron that he was holding over
her while lying on the ironing board just to scare her as a way of chastening her. He
also claims that assuming the CA is correct, it still erred in refusing to appreciate the
mitigating circumstances of no intention to commit so grave a wrong as that committed
and passion and/or obfuscation, thus, also erring in not modifying his sentence to
another degree lower.

The Office of the Solicitor General (OSG), in its Comment6 dated June 19, 2014, argues
that the trial court and the CA correctly convicted the petitioner for violation of R.A. No.
7610. It also avers that the trial court correctly denied appreciation of the mitigating
circumstances of passion and/or obfuscation and lack of intention to commit so grave a
wrong, and as such properly applied the corresponding penalty without any mitigating
circumstance.

In its Reply7 dated October 8, 2014, petitioner reiterates the arguments and issues he
presented in his petition.

The petition is unmeritorious.

Under Rule 45, Section 1 of the Rules of Court, only questions of law may be raised in a
Petition for Review on Certiorari: ChanRoblesVirtualawlibrary

Section 1. Filing of petition with Supreme Court. - A party desiring to appeal by

certiorari from a judgment, final order or resolution of the Court of Appeals, the
Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court or other courts,
whenever authorized by law, may file with the Supreme Court a verified petition for
review on certiorari. The petition may include an application for a writ of preliminary
injunction or other provisional remedies and shall raise only questions of law, which
must be distinctly set forth. The petitioner may seek the same provisional remedies by
verified motion filed in the same action or proceeding at any time during its pendency.

A question of fact exists "when the doubt or difference arises as to the truth or the
falsehood of alleged facts."9 On the other hand, a question of lawexists "when the doubt
or difference arises as to what the law is on a certain state of facts." 10 A close reading
of the issues presented by petitioner shows that they are all factual in nature, and thus,
does not fall within the scope of a petition for review under Rule 45 of the Rules of
Court nor do they fall within the exceptions to the general rule.

Nevertheless, even if this Court should disregard such infirmity, the petition still fails to
impress.

Section 10 of R.A. No. 7610 otherwise known as "An Act Providing for Stronger
Deterrence and Special Protection Against Child Abuse, Exploitation and Discrimination,
and for Other Purposes," provides the following:

ARTICLE VI
Other Acts of Abuse

SECTION 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions
Prejudicial to the Child's Development. -

(a)
Any person who shall commit any other acts of child abuse, cruelty or exploitation or be
responsible for other conditions prejudicial to the child's development including those
covered by Article 59 of Presidential Decree No. 603, as amended, but not covered by
the Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its
minimum period.

Section 3 of the same law defines child abuse as -

3 (b) "Child abuse" refers to the maltreatment, whether habitual or not, of the child
which includes any of the following:

(1) Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional
maltreatment;
(2) Any act by deeds or words which debases, degrades or demeans the
intrinsic worth and dignity of a child as a human being.
The prosecution was able to prove the elements of the violation of the said law,
namely: (1) the minority of VVV; (2) the acts constituting physical abuse, committed by
petitioner against VVV; and (3) the said acts are clearly punishable under R.A. No.
7610. As aptly ruled by the CA citing the factual findings of the RTC, all the elements of
the crime charged are present, thus:

We agree with the trial court when it ruled that the prosecution have established the
elements of child abuse in this case, to wit: (a) the victim's minority; (b) the acts
constituting physical and psychological abuse when accused employed the use of a
heated flat iron; and (c) said excessive acts of rebuke and chastening are clearly
punishable under RA No. 7610. This is clearly shown in the evidence it presented during
trial particularly the testimonies of its witnesses and that of the minor victim, VVV, who
gave a clear, consistent, and credible account of the events on September 10, 2010, in
a straightforward and candid manner. Settled is the rule that when the victim's
testimony is straightforward, convincing, and consistent with human nature and the
normal course of things, unflawed by any material or significant inconsistency, it passes
the test of credibility, and the accused may be convicted solely on the basis thereof.
Hence, We see no reason not to affirm the factual findings of the trial court. Equally,
settled is the rule that factual findings of the trial court are entitled to respect and are
not to be disturbed on appeal, unless some facts or circumstances of weight and
substance, having been overlooked or misinterpreted, might materially affect the
disposition of the case. Not one of the exceptions is present in this case. 11

In Araneta v. People,12 this Court discussed the nature of the crime of child

abuse as defined in R.A. No. 7610, thus:  ChanRoblesVirtualawlibrary

Republic Act No. 7610 is a measure geared towards the implementation of a national
comprehensive program for the survival of the most vulnerable members of the
population, the Filipino children, in keeping with the Constitutional mandate under
Article XV, Section 3, paragraph 2, that The State shall defend the right of the
children to assistance, including proper care and nutrition, and special
protection from all forms of neglect, abuse, cruelty, exploitation, and other
conditions prejudicial to their development. This piece of legislation supplies the
inadequacies of existing laws treating crimes committed against children, namely, the
Revised Penal Code and Presidential Decree No. 603 or the Child and Youth Welfare
Code. As a statute that provides for a mechanism for strong deterrence against the
commission of child abuse and exploitation, the law has stiffer penalties for their
commission, and a means by which child traffickers could easily be prosecuted and
penalized. Also, the definition of child abuse is expanded to encompass not only those
specific acts of child abuse under existing laws but includes also other acts of neglect,
abuse, cruelty or exploitation and other conditions prejudicial to the child's
development.

Article VI of the statute enumerates the other acts of abuse. Paragraph (a) of Section
10 thereof states:

Article VI
OTHER ACTS OF ABUSE
SEC. 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions
Prejudicial to the Childs Development.

(a) Any person who shall commit any other acts of abuse, cruelty or exploitation
or be responsible for other conditions prejudicial to the child's
development including those covered by Article 59 of Presidential Decree No. 603, as
amended, but not covered by the Revised Penal Code, as amended, shall suffer the
penalty of prision mayor  in its minimum period.

As gleaned from the foregoing, the provision punishes not only those enumerated under
Article 59 of Presidential Decree No. 603, but also four distinct acts, i.e., (a) child
abuse, (b) child cruelty, (c) child exploitation and (d) being responsible for conditions
prejudicial to the child's development. The Rules and Regulations of the questioned
statute distinctly and separately defined child abuse, cruelty and exploitation just to
show that these three acts are different from one another and from the act prejudicial
to the child's development. Contrary to petitioner's assertion, an accused can be
prosecuted and be convicted under Section 10(a), Article VI of Republic Act No. 7610 if
he commits any of the four acts therein. The prosecution need not prove that the acts
of child abuse, child cruelty and child exploitation have resulted in the prejudice of the
child because an act prejudicial to the development of the child is different from the
former acts.

Moreover, it is a rule in statutory construction that the word or is a disjunctive term

signifying dissociation and independence of one thing from other things enumerated. It
should, as a rule, be construed in the sense which it ordinarily implies. Hence, the use
of or in Section 10(a) of Republic Act No. 7610 before the phrase be responsible for
other conditions prejudicial to the child's development supposes that there are four
punishable acts therein. First, the act of child abuse; second, child cruelty; third, child
exploitation; and fourth, being responsible for conditions prejudicial to the child's
development. The fourth penalized act cannot be interpreted, as petitioner suggests, as
a qualifying condition for the three other acts, because an analysis of the entire context
of the questioned provision does not warrant such construal.

The subject statute defines children as persons below eighteen (18) years of age; or
those over that age but are unable to fully take care of themselves or protect
themselves from abuse, neglect, cruelty, exploitation or discrimination because of a
physical or mental disability or condition. 13

As to the contention of petitioner that the mitigating circumstance of lack of intention to

commit so grave a wrong should have been appreciated, this Court finds it
unmeritorious. It is a hornbook doctrine that this mitigating circumstance can be taken
into account only when the facts proven show that there is a notable and evident
disproportion between the means employed to execute the criminal act and its
consequences.14 The facts found by the trial court and the CA show that petitioner
intended the natural consequence of his act. The observation of the OSG that
petitioner's intention of inflicting such harm should be judged in accordance with his
previous acts of abusing the victim, of regarding VVV as a mere adoptive child who is
not his blood relative and petitioner's evident superiority of physique as a fully grown
man inflicting harm upon a 9-year-old victim, and thus, when petitioner pressed the hot
iron upon the body of the victim, it must be presumed that his intention was to
physically abuse her since such act was sufficient to produce the evil which resulted
from such act is also worth noting.15

Applying the same set of facts, petitioner is also not entitled to the application of the
mitigating circumstance of passion and/or obfuscation. The mitigating circumstance of
passion or obfuscation only applies if the act of the victim is both unlawful and sufficient
to produce such condition of mind. 16 A child who fell asleep while attending to a
business establishment is not an offense at all and could not give rise to an impulse
sufficiently powerful to naturally produce a justified diminution of an adult's selfcontrol.
As correctly ruled by the CA:

Going now to the theory of appellant that the trial court committed error when it did
not appreciate the mitigating circumstances of passion and/or obfuscation and lack of
intent to commit so grave a wrong, the same deserves scant consideration.

To be entitled to the mitigating circumstance [of] passion and/or obfuscation the

following elements must be present: (1) there should be an act both unlawful and
sufficient to produce such condition of mind; (2) the act that 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. These
elements are not present here. There was no unlawful and sufficient act on VVV's part
which sufficiently provoked passion and/or obfuscation on appellant's side. As correctly
observed by the trial court, the dozing off of VVV when she was ordered to watch over
the Xerox machine for possible clients is not an unlawful act sufficient to produce
passion and raging anger, even to a disciplinarian foster parent. Hence, appellant
cannot successfully claim that he was blinded by passion and obfuscation. 17

Hence, the trial court and the CA correctly imposed the penalty by not considering the
mitigating circumstances claimed by petitioner. Section 10 (a) of R.A. No. 7610
imposes the penalty of prision mayor in its minimum period. Applying the
Indeterminate Sentence Law, the trial court did not err when it imposed the penalty of
4 years, 9 months and 11 days of prision correccional, as minimum, to 6 years, 8
months and 1 day of prision mayor, as maximum.

WHEREFORE, the Petition for Review on Certiorari under Rule 45 dated January 28,
2014 of Ricardo Del Poso y Dela Cerna is DENIED for lack merit and the Decision dated
July 22, 2013, dismissing petitioner's appeal and affirming the Decision dated July 1,
2011 of the Regional Trial Court, Branch 38, Manila in Criminal Case No. 05-239429,
convicting petitioner of violation of Section 10 (a) of R.A No. 7610 and imposing upon
petitioner the indeterminate penalty of imprisonment of four (4) years, nine (9) months
and eleven (11) days of prision correccional, as minimum, to six (6) years, eight (8)
months and one (1) day of prision mayor, as maximum, is AFFIRMED.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 68898 March 31, 1989

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CRISTOTO LAPAZ alias TOTONG, JOHNSON BARLESO and PAULINO LAPAZ, JR.,
defendants. CRISTOTO LAPAZ alias TOTONG, defendant-appellant.

G.R. No. 70445 March 31, 1989

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CRISTOTO LAPAZ alias TOTONG, JOHNSON BARLESO and PAULINO LAPAZ, JR.,
defendants, JOHNSON BARLESO, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Rafael S. Domingo counsel de officio for defendant Cristoto Lapaz.

Antonio R. Bautista counsel de officio for Johnson Barleso.

GANCAYCO, J.:

In the evening of April 14, 1984, Eulalia Cabunag, a 70-year old woman who was living alone, was
beaten to death by three men at Barangay Katipunan, Carmen, Bohol. One of them was discharged
as a state witness; the second pleaded guilty and the third pleaded not guilty so he underwent a trial.
Thereafter, both were found guilty and sentenced to death. Said verdict is now before this Court on
appeal.

Appellant Johnson Barleso used to stay in the house of said victim, Eulalia Cabunag, as his
common-law wife was the niece of the latter. They transferred to the house of Aurelio Gaudicos,
son-in-law of Eulalia, when Eulalia called Barleso a thief in the presence of many people.
Apparently, Barleso resented the remark.

Paulino Lapaz, Jr. was then in his parent's house in the same barangay when he was fetched by his
uncle, herein appellant Cristoto Lapaz, to go to the house of Barleso. Thereat, Barleso proposed to
Cristoto in the presence of Paulino that they kill Eulalia. Cristoto agreed. He asked Paulino to buy a
bottle of "kulafu" wine which be drank to embolden himself. Thereafter the three proceeded to the
house of the victim who was living alone. Cristoto carried a rounded piece of wood 1 which was given to
him by Barleso, while Barleso also carried another piece of wood 2 and a bolo.
Upon their arrival in the house of the victim, Barleso left the bolo behind a post beneath the house.
He then removed a plywood covering an opening on the wall beneath the victim's stove. The three
then entered the house, one after the other through said opening. Paulino stayed in the kitchen,
while Barleso and Cristoto proceeded to the sala where they helped one another in beating the
victim with the pieces of wood they brought with them until the latter slumped on the floor.

Barleso ordered Paulino to get the bolo which he left beneath the house. When Paulino handed the
bolo to Barleso, the victim suddenly shouted for helPeven as she was already lying on the floor.
Frightened, the three panicked and jumped one after the other through the same opening through
which they entered the house, leaving behind the two pieces of wood which Barleso and Cristoto
used. Paulino and Barleso proceeded to the latter's house while Cristoto proceeded to the house of
Paulino's parents.

As Aurelio Gaudicos heard a thudding sound and a shout for helPcoming from the direction of the
victim's house, he ran towards said house and hid behind the coconut tree near the kitchen. From
there he saw the three men, Paulino, Barleso, and Cristoto hurriedly leaving the house of the victim.
Gaudicos immediately returned home and ordered someone to fetch the police.

When the policemen led by the Integrated National Police station commander of Carmen, Bohol
arrived, they were met by Gaudicos who led them to the house of the victim. There they saw the
victim bathed in her own blood at the sala still alive but she could no longer talk. She was brought to
the Simeon Toribio Memorial Hospital at the poblacion. Guadicos confided to the police investigating
team the Identity of the three persons he saw leaving the victim's house immediately after the
incident.

Paulino was spotted by the policeman mixing with the crowd in the vicinity of the victim's house so
he was invited for questioning in the house of his father where Cristoto Lapaz was found. In the
course of the questioning, the station commander noticed the blood stains on the t-shirt of Cristoto.
The two suspects were brought to the police station where the station commander also noticed
bloodstains on the pants of Paulino. 3 Upon initial inquiry, Paulino readily admitted his participation in the commission of the
crime. Cristoto also admitted his complicity but he pointed to Barleso as the one who struck the victim with the piece of wood. Barleso was
picked uPat dawn the following day at the hospital where he accompanied the victim. At the initial stage of the investigation, he denied any
participation. However, he eventually admitted his guilt.

On April 14, 1984, the police conducted a thorough investigation. Barleso executed a sworn
statement admitting his participation in the commission of the crime. 4 During the preliminary examination
conducted by Judge Francisco Escano of the Municipal Circuit Court of Carmen, Butuan on April 27, 1984, he admitted having inflicted the
injuries on the victim. 5

The victim died of the injuries the following day in the hospital. Aside from the certificate of death that was issued, 6 a post mortem certificate
was also issued by Dr. Elizabeth Cabagnot. The said physician stated her findings in connection with the autopsy conducted of the victim, as
follows:

... Cardio-respiratory arrest sec. to multiple lacerated wounds, Face, Frontal, Parietal
and occipital areas Multiple contusions, Face, lateral side of neck (left) and shoulder
area (left). 7

Thus, an information for murder was filed by the provincial fiscal of Bohol against said three suspects in the Regional Trial Court of Bohol.

Upon arraignment of the three accused on July 3, 1984, they entered a plea of not guilty. They were
assisted by their respective counsels. When the case was set for trial on the merits on July 25, 1984,
counsel for the accused Cristoto Lapaz informed the trial court that he would like to change his plea
of not guilty to that of guilty. The trial court inquired from the accused if he confirms the manifestation
of his counsel and he answered in the affirmative. Thereafter, said accused was rearraigned
whereupon he pleaded guilty to the crime charged against him. The trial court again asked the
accused whether he confirms the manifestation of his lawyer that he was changing his previous plea
of not guilty to that of guilty considering that the crime charged is a capital offense and the answer of
the accused was still in the affirmative. The trial court also asked him whether he understood fully
well the explanation of his lawyer as to the nature of the charges against him and the consequences
of his plea of guilty to the crime charged. The answer of the accused was also in the affirmative. At
this juncture, his counsel invoked two mitigating circumstances in favor of the accused, to wit: (1)
voluntary plea of guilty; and (2) voluntary surrender. The fiscal did not offer any objection to the
appreciation of the mitigating circumstance of voluntary plea of guilty but he submitted to the sound
discretion of the trial court the appreciation of the second mitigating Circumstance of voluntary
surrender. He informed the trial court that the accused was apprehended a few minutes after the
commission of the offense and was in the custody of the police before the filing of the complaint.

The trial court required the prosecution to present Dr. Elizabeth Cabagnot in order to determine the
extent of injuries suffered by the victim. On August 17, 1984 a decision was promulgated by the trial
court convicting the accused Cristoto Lapaz alias "Toto" of the crime of murder. Considering the two
aggravating circumstances charged in the information, namely: (1) disregard of the respect due to
the offended party on account of her age and sex and (2) the crime having been committed in the
dwelling place of the offended party without the latter having given provocation, and which is offset
by one mitigating circumstance of voluntary plea of guilty, the accused was sentenced to suffer the
penalty of death and to indemnify the heirs of Eulalia Cabunag in the amount of P12,000.00 with
subsidiary imprisonment in case of insolvency and to pay the costs of the proceedings.

Meanwhile, the trial proceeded as against appellant Barleso and Paulino Lapaz, Jr. The fiscal filed a
motion to discharge the accused Paulino as a state witness with the conformity of the said accused.
This was granted by the trial court. After the trial on the merits, a decision was rendered by the trial
court of February 28, 1985 finding the accused Barleso guilty of the crime of murder, with three
aggravating circumstances, namely: (a) disregard of sex and age of the victim; (b) committed at the
dwelling place of the victim; and (c) committed at nighttime and by gaining access to the victim's
dwelling through an opening not intended for egress; i.e., through a hole made by the accused,
without any mitigating circumstance to offset the same. The trial court imposed on him the penalty of
death, to indemnify the heirs of the victim in the amount of P12,000.00, and required him to pay the
heirs of the victim the actual damage of P10,000.00 without subsidiary imprisonment in case of
insolvency, and to pay the costs of the proceedings.

Both cases were elevated to this Court on automatic review.

The accused Johnson Barleso with the assistance of counsel de oficio asked for a reversal or
modification of the judgment based on the following assignments of errors:

THE TRIAL COURT ERRED IN NOT DECLARING THAT CRISTOTO LAPAZ WAS
ALONE RESPONSIBLE FOR THE DEATH OF EULALIA CABUNAG.

II

THE TRIAL COURT ERRED IN NOT HOLDING THAT APPELLANT JOHNSON

BARLESO WAS, IF AT ALL, MERELY AN ACCOMPLICE OF CRISTOTO LAPAZ.

III
 THE TRIAL COURT ERRED IN NOT DISREGARDING THE SELF- EXCULPATORY
TESTIMONY OF PAULINO LAPAZ, JR.

IV

THE TRIAL COURT ERRED IN NOT DECLARING AS INADMISSIBLE IN

EVIDENCE THE RESPECTIVE SWORN STATEMENT'S OF APPELLANT
JOHNSON BARLESO EXECUTED AT THE POLICE STATION AND DURING HIS
PRELIMINARY EXAMINATION EXHIBITS "B" AND -F-), FOR VIOLATION OF THIS
APPELLANTS MIRANDA RIGHTS.

THE TRIAL COURT ERRED IN HOLDING THAT THE CIRCUMSTANCES OF

TREACHERY AND EVIDENT PREMEDITATION ATTENDED THE KILLING OF
EULALIA CABUNAG.

VI

THE TRIAL COURT ERRED IN HOLDING THAT THE KILLING OF EULALIA

CABUNAG WAS ATTENDED BY THE AGGRAVATING CIRCUMSTANCES OF- (A)
DISREGARD OF SEX AND AGE, AND (B) NIGHTTIME.

VII

THE TRIAL COURT ERRED IN NOT CREDITING APPELLANT JOHNSON

BARLESO WITH THE ALTERNATIVE MITIGATING CIRCUMSTANCE OF LACK OF
INSTRUCTION.

VIII

THE TRIAL COURT ERRED IN IMPOSING THE PENALTY OF DEATH UPON

APPELLANT BARLESO. 8

Likewise, with the assistance of his counsel, the accused Cristoto Lapaz filed a brief assailing his
conviction on the following grounds:

THE TRIAL COURT FAILED TO OBSERVE THE DEGREE OF CARE WHICH THIS
HONORABLE SUPREME COURT HAS PRESCRIBED FOR A VALID ADMISSION
OF A PLEA OF GUILTY BY AN ACCUSED, ESPECIALLY WHERE THE
COMMISSION OF A CAPITAL OFFENSE IS CHARGED AS IN THE PRESENT
CASE AND IN IMPOSING THE DEATH PENALTY WITHOUT TAKING EVIDENCE
INDEPENDENT OF HIS PLEA OF GUILTY.

II

THE TRIAL COURT ERRED IN APPRECIATING THE QUALIFYING

CIRCUMSTANCES OF EVIDENT PREMEDITATION, TREACHERY AND
 SUPERIOR STRENGTH AND THE RECORDS ALSO DO NOT ADEQUATELY
SUPPORT THE EXISTENCE OF THESE QUALIFYING CIRCUMSTANCES.

III

THE TRIAL COURT ERRED IN APPRECIATING THE GENERIC AGGRAVATING

CIRCUMSTANCES TO WIT: (1) DISREGARD RESPECT DUE THE OFFENDED
PARTY ON ACCOUNT OF HER SEX AND AGE: AND (2) THE CRIME HAVING
BEEN COMMITTED IN THE DWELLING PLACE OF THE OFFENDED PARTY
WITHOUT THE LATTER HAVING GIVEN PROVOCATION.

IV

THE TRIAL COURT ERRED IN NOT CONSIDERING THE MITIGATING

CIRCUMSTANCE OF LACK OF INSTRUCTION.

THE TRIAL COURT ERRED IN IMPOSING THE DEATH PENALTY ON THE

ACCUSED-APPELLANT CRISTOTO LAPAZ. 9

With the abolition of the death penalty under the present Constitution, 10 there is no more automatic review of
cases of this nature. These cases are thus treated as on ordinary appeal.

First, the Court takes into account the appeal of appellant Johnson Barleso. Barleso stresses the
fact that his co-accused Cristoto Lapaz, who took the witness stand as his witness, admitted having
killed the victim Eulalia Cabunag on the evening of April 14, 1984 and that although Barleso and
Paulino Lapaz Jr. were with him then, he did not see Barleso participate in the beating of the victim.
Barleso testified that at that critical moment, he was at the kitchen of the victim's house and that he
went with Cristoto and Paulino because Cristoto threatened him with a hunting knife. While Barleso
admitted that his relationshiPwith the victim was not cordial, he alleges that his anger never
developed into such hatred as to inspire him to kill the victim. He contends that his mere presence
on the occasion of the killing does not prove conspiracy inasmuch as he did not take a direct part in
the beating of the victim and that he did not directly force or induce Cristoto to commit the same. He
argues that if at all, his participation was merely that of an accomplice in that knowing of the criminal
design of Cristoto he still accompanied said assailant to the place of the victim, and that his
presence at the scene of the crime was not indispensable to the commission of the same. 11

The Court is not persuaded. Paulino Lapaz, Jr., who was discharged as a state witness,
categorically testified that he was present when Barleso and Cristoto Lapaz agreed on that evening
to kill the victim; that he was asked by Cristoto to buy "kulafu" wine which Cristoto drank; that
Cristoto brought a piece of wood, while Barleso brought a piece of wood and a bolo with him; that
Barleso left his bolo underneath the house of the victim; that Cristoto entered through an opening in
the house followed by Barleso and himself-, that Cristoto and Barleso beat the victim, who was then
alone, by using the pieces of wood they had brought along; that after the victim slumped down to the
floor, Barleso commanded him to get his bolo, and so he got it and handed it to Barleso; that the
victim shouted for help; that they were frightened; and that they all got out of the house and fled.

The testimony of Cristoto Lapaz tending to exculpate appellant Barleso is not worthy of any
credence. Barleso does not deny that he had a standing grudge against the victim for calling him a
thief in the presence of many persons. He felt so disgraced that he and his wife moved out of the
house of the victim. It must be because of such hatred that he persuaded Cristoto to join him in
killing the victim.

Barleso assailed the discharge of Paulino as a state witness on the ground that such discharge is
improvident. Barleso alleges that Paulino was more guilty than himself. The evidence does not
support the stance of appellant. Be that as it may, the discharge of Paulino as state witness cannot
be faulted as long as he is not the most guilty. 12

The admission in evidence of the sworn statements of appellant Barleso executed at the police station and during the preliminary
examination is also questioned by appellant. The Court finds it unnecessary to dwell on the issue considering that the evidence on record is
more than adequate to generate appellant's conviction of the offense charged against him without considering the said sworn statements. 13

Contrary to the allegation of the appellant Barleso, the commission of the offense with treachery and
evident premeditation has been established by the prosecution. The appellant nurtured a grudge and
planned the killing of the victim. He invited his two companions to helPhim execute his plan to beat
the victim to death with pieces of wood in the middle of the night insuring the killing of the victim
without risk to himself arising from the defense which the offended party might make. The presence
of treachery is clear. 14

It was also established that previous to the incident, the victim called appellant Barleso a thief in the
presence of other people, and that appellant and his family transferred to another house inasmuch
as he could no longer bear the insults hurled at him by the victim. The appellant's resentment
culminated in the evening of April 14, 1984 when as above-related he persuaded his two co-accused
to join him in killing the victim, which they accomplished. Sufficient time, therefore, had elapsed from
the time the appellant conceived the commission of the crime until the execution thereof. Obviously,
evident premeditation attended the commission of the crime. 15

By the same token, the assigned error as to the two aggravating circumstances is not well taken.
While it may be true that nighttime is absorbed in the aggravating circumstance of treachery, the
aggravating circumstance of disregard of sex and age cannot be similarly absorbed. Treachery
refers to the manner of the commission of the crime. Disregard of sex and age pertains to the
relationshiPof the victim, who is a 70-year old woman, and the appellant who is young man, 27 years
old, at the time of the commission of the offense.

The Court also takes note of the presence of the aggravating circumstance of dwelling and that the
crime war, committed after an unlawful entry.

The mere lack of instruction or illiteracy of the appellant cannot be considered as a mitigating
circumstance. One does not have to be educated or intelligent to be able to know that it is unlawful
to take the life of another person even if it is to redress a wrong committed against him

The conviction of appellant Barleso by the trial court must be upheld.

Now to the appeal of Cristoto Lapaz. The main thrust of his appeal is that the trial court failed to
observe the degree of care prescribed in imposing the death penalty upon a plea of guilty by an
accused charged with the commission of a capital offense, citing People vs. Badilla. 16 The appellant
contends that the trial court failed to explain to him the nature of the charge against him, especially the aggravating circumstances attending
the commission of the offense and that the trial court did not propound any question to him regarding said circumstances so as to leave no
room for doubt as to the possibility of his misunderstanding the nature and gravity of the charge to which he was pleading guilty. He argues
that he was not advised as to the meaning and effect of the technical language in the information in qualifying the acts constituting the
offense. 17

The appellant also cites People vs. Formentera  18 where this Court observed that the casual remark of the trial judge that
the penalty to be imposed is "reclusion perpetua to death" without specifically and categorically informing the accused of the imposable
penalty, and the averment of several aggravating circumstances in the information, thus provide cogent reason to conclude that the accused
did not fully comprehend the consequences of his plea. He asserts that the trial court could have called witnesses for the purpose of
establishing his guilt and culpability not only to satisfy the trial judge, but also to aid the Supreme Court in determining whether the accused
really and truly understood and comprehended the meaning and the full consequences of his plea. 19

The record of the proceedings relevant to this issue is as follows:

ATTY. BAGAIPO, JR.:

Your Honor, please, one of the accused in this case Cristoto Lapaz
alias Toto intimated to me that he is changing his plea of not guilty,
your Honor. We therefore request that he be re-arraigned on the
Information, your Honor.

COURT (to accused Cristoto Lapaz):

Q Your lawyer, Cristoto Lapaz, Atty. Fortunate Bagaipo Jr.

manifested to the Court that you are going to change your plea from
your previous plea of not guilty to that of guilty. Do you confirm to this
fact as manifested by your lawyer?

ACCUSED CRISTOTO LAPAZ:

Yes, your Honor, that is correct.

COURT (to Court Interpreter):

All right, re-arraign accused Cristoto Lapaz alias Totong.

(At this juncture, the court interpreter is reading the in formation to
accused Cristoto Lapaz)

COURT:

Q Cristoto Lapaz, this is your correct name?

ACCUSED CRISTOTO LAPAZ:

A Yes, your Honor.

COURT:

Q Do you understand the Information read to you and translated to

you in the Cebu Visayan dialect?

ACCUSED CRISTOTO LAPAZ:

A Yes, your Honor.

COURT.

Q What plea do you enter?

ACCUSED CRISTOTO LAPAZ:

A Guilty, your Honor.

COURT:

Q You are charged of a capital offense. Did your lawyer explain to

you the nature of the offense which is punishable from life to death?

ACCUSED CRISTOTO LAPAZ:

A Yes, your Honor.

COURT:

Q What is your highest educational attainment?

ACCUSED CRISTOTO LAPAZ:

A I am an illiterate, your Honor.

COURT:

Q And you understood the explanation of your lawyer very well about
you change of plea ?

ACCUSED CRISTOTO LAPAZ:

A Yes, your Honor, I was made to understand by my lawyer.

COURT:

Order.

When this case was called for trial this morning, Asst. Prov. Fiscal
Pablo R. Magdoza appeared for the prosecution, accused Cristoto
Lapaz alias Totong and Paulino Lapaz Junior appeared assisted by
their counsel, Atty. Fortunate Bagaipo Jr. while accused Johnson
Barleso appeared assisted by his counsel, Atty. Alexander H. Lim.

Atty. Bagaipo Jr. manifested to the Court that his client Cristoto Lapaz
(alias) Totong would like to change his previous plea of not guilty to
that of guilty and that is why accused Cristoto Lapaz (alias) Totong
was called by the Court whether he would confirm the manifestation
of his counsel and the answer of accused Cristoto Lapaz (alias)
Totong as (sic) in the affirmative. Thereafter, accused Cristoto Lapaz
(alias) Totong pleaded guilty to the crime charged. The Court asked
again said whether he would confirm the manifestation of his lawyer
that he has to change his previous plea of not guilty to that of guilty
considering that the crime charged is a capital offense and the
 answer was still in the affirmative. The Court further asked said
accused whether he understood very well the explanation of his
lawyer as to the consequences of his plea of guilty to the crime
charged and the answer of the accused was in the affirmative.

At this juncture, Atty. Bagaipo Jr. invoked two (2) mitigating

circumstances to be appreciated in favor of his client accused
Cristoto Lapaz (alias) Totong, namely; (a) voluntary plea of guilty and
(b) voluntary surrender. Fiscal Magdoza, on other hand, did not offer
any objection to the appreciation of the mitigating circumstance of
voluntary plea of guilty in favor of accused Cristoto Lapaz (alias)
Totong (inasmuch as he) was apprehended (a) few minutes after he
committed the crime and he was in the (sic) police custody before the
filing of the complaint.

Promulgation of sentence upon accused Cristoto Lapaz alias Totong

is held in abeyance until all prosecution witnesses shall have testified
against the rest of the accused.

SO ORDERED.

Given in open Court, Tagbilaran City, July 25, 1984.

(SGD.)
ANDR
ES S.
NAMO
CCAT
CAT
Judge 2
0

The first witness who testified for the prosecution was Dr. Elizabeth Cabagnot, resident physician of
Simeon Toribio Memorial Hospital. After her testimony, the trial court ruled that it was satisfied with
the testimony of the doctor. The trial court also considered the evidence against appellant sufficient.
The proceedings were to continue only insofar as the two other accused were concerned. On August
17, 1984, the trial court rendered its decision finding appellant Cristoto Lapaz guilty of the crime of
murder.

In disputing the argument of the appellant, the Solicitor General states that the trial court did its duty
of assuring that the appellant understood his act, the nature of the charges filed against him and the
character of the punishment provided for by law before it it imposed, 21 and that the information was read to him
translated into the Visayan dialect which the appellant understood.

The record shows that appellant was informed by the trial court that upon a plea of guilty he could be
imposed the penalty of life imprisonment to death. It is likewise true that the trial court was informed
that the appellant was illiterate. The presiding judge verified anew if he understood the charges
against him and if his lawyer explained the consequences of the plea to him. The accused confirmed
his plea of guilty. Thereafter, the trial court required the presentation of evidence for the prosecution
but after the doctor testified as to the multiple injuries inflicted on the deceased with the use of a
blunt instrument, the trial court considered the case against appellant submitted and rendered its
decision.
The Court agrees with the protestations of the appellant that the trial court did not take pains in
explaining to him the nature and character of the offense charged against him, the consequences of
the plea of guilty and the meaning and effect of the aggravating and mitigating circumstances so as
to in sure that the appellant fully understood the consequences of his plea of guilty.

However, considering that in the same proceedings the trial continued as against the two other
accused, where one was discharged as a state witness and the other remained for trial, and in the
process the accused-appellant Cristoto even testified as a witness for his co-appellant Johnson
Barleso, the Court is not persuaded that the arraignment of said appellant on a plea of guilty was
improvidently undertaken. Appellant Cristoto Lapaz testified in court and categorically admitted that
he was the one who beat the victim to death. He asserted that his two other co-accused did not
participate in the killing. He admitted that he drank "kulafu" wine in order to embolden himself to
commit the offense. His admissions were made freely and voluntarily even after he had been
sentenced to death by the trial court. He related having committed the offense at the dwelling of the
offended party at night attended by treachery and qualified by evident premeditation without regard
to the sex and age of the offended party. The Court can take judicial notice of this testimony of the
appellant in court and of the other evidence adduced during the trial in the resolution of his appeal. It
appears that the trial court committed no error in accepting the voluntary plea of guilty of appellant in
this case and in imposing the corresponding penalty thereafter. Appellant fully understood the
consequences of his plea.

The guilt of both appellants Johnson Barleso and Cristoto Lapaz is sufficiently established.
Accordingly, this Court affirms the judgment of conviction rendered by the trial court. However,
considering that the 1987 Constitution does not allow the imposition of the death penalty, the penalty
which should be and is hereby imposed on the appellants is reclusion perpetua, and the indemnity
that each of them should be required to pay to the heirs of the deceased is set at P30,000.00.

WHEREFORE, with the above modification as to the penalty and indemnity, the judgment appealed
from in these cases is hereby AFFIRMED in all other respects, with costs against appellants.

SO ORDERED.

[Adm. Matter No. 384. February 21, 1946.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. NICOLAS JAURIGUE

and AVELINA JAURIGUE, Defendants. AVELINA JAURIGUE, Appellant.

Jose Ma. Recto for Appellant.

Assistant Solicitor General Enriquez and Solicitor Palma for Appellee.

SYLLABUS

1. CRIMINAL LAW; HOMICIDE; EXEMPTING CIRCUMSTANCES; DEFENSE OF HONOR. —

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.

2. ID.; ID.; ID.; ID.; CASE AT BAR. — 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; there was and
there could be no possibility of her being raped. And when she gave A. C. a thrust at
the base of the left side of his neck inflicting upon him a mortal wound 4½ inches deep,
causing his death a few moments later, the means employed by her in the defense of
her honor was evidently excessive. Held: That she cannot be legally declared
completely exempt from criminal liability.

3. ID.; ID.; MITIGATING CIRCUMSTANCES; VOLUNTARY SURRENDER OBFUSCATION.

— The fact that defendant and appellant immediately and voluntarily and
unconditionally surrendered to the barrio lieutenant, admitting having stabbed the
deceased, 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, 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.

4. ID.; ID.; ID.; LACK OF INTENTION TO COMMIT so GRAVE A WRONG AS THAT

ACTUALLY COMMITTED. — It appearing that defendant and appellant merely wanted to
punish the offending hand of the deceased with her knife, as shown by the fact that she
inflected upon him only one single wound, the mitigating circumstance of lack of
intention to commit so grave a wrong as that actually committed should be considered
in her favor.

5. ID.; ID.; AGGRAVATING CIRCUMSTANCES; COMMISSION OF OFFENSE IN

CONSECRATED PLACE. — The aggravating circumstance that the killing was done in a
place dedicated to religious worship, cannot be legally considered, where there is no
evidence to show that the defendant and appellant had murder in her heart when she
entered the chapel the fatal night.

DECISION

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
mayor to thirteen years, nine months and eleven days of reclusion temporal, with the
accessory penalties provided by law, to indemnify the heirs of the deceased, Amado
Capiña, 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 donor 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
attented by the aggravating circumstance of having been committed in a sacred place."
virtua1aw library
cralaw

The evidence adduced by the parties, at the trial in the court below, has sufficiently
established the following facts:
chanrob1es virtual 1aw library

That both the defendant and appellant Avelina Jaurigue and the deceased Amado
Capiña 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 Capiña 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 breast, on account of which
Avelina, a 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 Capiña was seated on the other side of
the chapel. Upon observing the presence of Avelina Jaurigue, Amado Capiña 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 Capiña,
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 41/2 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 Capiña 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 and 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, may 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 v. 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 v. De la Cruz, 61 Phil., 344).

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 people of making purchases (United States v. Santa Ana and
Ramos, 22 Phil., 249).

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, if 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 a 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 v. Apego, 23 Phil., 391).

In the instant case, if defendant and appellant had killed Amado Capiña, 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 Capiña a thrust at the base of the left side of his
neck, inflicting upon him a mortal wound 41/2 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, 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 v. 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 v. Parana, 64 Phil., 331; People v.
Sakam, 61 Phil., 27; United States v. Arribas, 1 Phil., 86).

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 v. Brobst, 14 Phil.,
310; United States v. Diaz, 15 Phil., 123).

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 Capiña, 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 v. Apego, 23 Phil.,
391; United States v. Rivera, 41 Phil., 472; People v. 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 the 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 of prision correccional, as maximum, with the accessory penalties
prescribed by law, to indemnify the heirs of the deceased Amado Capiña, 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.

FIRST DIVISION

G.R. No. 220761, October 03, 2016

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. EDDIE OLAZO, MIGUEL

CORDIS, CHARITO FERNANDEZ AND ROGELIO LASCONIA, Accused,

CHARITO FERNANDEZ, Accused-Appellant.

DECISION

CAGUIOA, J.:
This an Appeal1 filed under Section 13, Rule 124 of the Rules of Court from the Decision
dated June 2, 20152 (questioned Decision) of the Court of Appeals, Twentieth (20 th)
Division (CA), which affirmed the Decision dated June 14, 20113 of the Regional Trial
Court of Abuyog, Leyte, Branch 10 (RTC), in Criminal Case No. 2402, finding herein
accused-appellant Charito Fernandez (Charito) guilty of the crime of Robbery with
Homicide.

The facts, as summarized by the CA in the questioned Decision, are as follows:

chanRoblesvirtualLawlibrary

On two several (sic) occasions in the months of July and August 2004, accused Rogelio
Lasconia together with several others hatched a plan to rob the spouses Erlinda and
Nicanor Vallecera inside their home in Barangay Bito, Abuyog, Leyte. It was agreed that
accused Dionesia Lasconia, who was then employed as a stay-out house help of the
spouses Vallecera would assist them by helping them get access inside the house
undetected.

At the first meeting, accused Rogelio Lasconia and Rommel Escobio were present
together with accused-appellant Miguel Corbis. On thsecond meeting, accused-appellant
Miguel Corbis, as well as, Charito Fernandez attended the planning. During both
meetings however, the plan did not push through due to the absence of some of the
expected members and some superstitious omen.

Sometime on August 8, 2004, accused Dionesia Lasconia was informed by the group
that they would push through with their plan that night. Thus, despite being a Sunday
and her rest day, Dionesia returned to the house of the spouses Vallecera around five
o'clock in the afternoon and awaited for the arrival of her cohorts.

Upon her arrival at the residence, Dionesia tended to her usual chores by feeding the
chickens, sweeping the grounds and cooking for the supper of the spouses. She,
however, left the back gate open to allow her co-accused to enter the compound as
agreed.

Around seven o'clock in the evening, Dionesia heard sounds near the back portion of
the house. She then immediately opened the kitchen door and allowed accused Rogelio
Lasconia, Rommel Escobio and Eddie Fernandez, all of whom were then wearing masks,
to enter the house.

The three then waited near the kitchen area of the house while the spouses Vallecera
were inside the master's bedroom. After almost an hour of waiting, Erlinda Vallecera
opened the master's bedroom door and was immediately accosted by the three
intruders. Accused Eddie Fernandez then pointed a gun at Erlinda Vallecera and
grabbed her.

The three then covered her face, while Rogelio whispered at Erlinda not to make any
noise as they were only there to get money. They then dragged her into the master's
bedroom where they then hogtied Nicanor Vallecera.

The three then forced Erlinda to open the vault where they then took away at least one
hundred thousand pesos in cash and several pieces of jewelry. They also raided the
office of Erlinda in search for more valuables.

After they were able to grab all the valuable items they can easily cart away, accused
Eddie Fernandez and Rommel Escobio then brought Erlinda into one of the comfort
rooms inside the house. There Rommel Escobio slashed her throat with the use of a
samurai that they found inside the office of Erlinda.

Subsequently, Rommel Escobio exited the comfort room and approached Rogelio
Lasconia and intimated that Erlinda was still alive despite the wound. Rogelio then
entered the comfort room and thereat stabbed Erlinda several times in the neck area
with the use of a long knife.

Thereafter, the three accused then hogtied Dionesia Lasconia to make it appear that
she had no part in the robbery and then exited the house. 4

On February 21, 2005, an Information was filed with the RTC against Eddie Olazo,
Miguel Corbis and Charito, together with Rogelio Lasconia, Joseph Oronos (Joseph),
Dionesia Lasconia, Rommel Escobio, and Eddie Fernandez, charging them with the
crime of Robbery with Homicide, as follows:
chanRoblesvirtualLawlibrary

That on or about the 8th day of August 8, 2004, in the Municipality of Abuyog, Province
of Leyte, Philippines, and within the jurisdiction of this honorable court, the above
named accused conspiring, confederating and mutually helping with one another and
being armed with a gun and bladed weapons, did then and there willfully, unlawfully
and feloniously with intent to gain by means of force, violence and intimidation, to wit:
by pointing at one ERLINDA T. VALLECERA with the said gun and demanding money
from her, hogtying NICANOR VALLECERA and threatening to kill the above-named
spouses, and thereafter take, steal and carry away cash amounting to more than Php
100,000.00 and undetermined amount of assorted jewelry owned by and belonging to
the said spouses NICANOR VALLECERA, against their will and without their consent to
the damage and prejudice to said owner in the said sum; that on the occasion of the
said robbery, the above-named accused, with intent to kill, with evident premeditation
and taking advantage of their superior strength, conspiring, confederating, and
mutually helping with one another, and in pursuance of their conspiracy, did then and
there willfully, unlawfully, and feloniously attack, assault, slash the throat, stab, hack
and wound ERLINDA T. VALLECERA with the use of bladed weapon which the accused
provided themselves for the purpose, thereby hitting and inflicting upon her fatal
wounds on the different parts of her body which were the direct and proximate cause of
her death.

ACTS CONTRARY TO LAW.5 chanroblesvirtuallawlibrary

During arraignment, only Rommel Escobio pleaded guilty, while Eddie Fernandez
remained at large.6 chanrobleslaw

Meanwhile, during trial, Joseph was discharged as state witness. On the other hand,
Dionesia Lasconia was allowed to plead guilty to the lesser offense of Homicide on the
condition that she would corroborate the testimony of Joseph, the alleged driver of the
motorcycle used to transport the accused to and from the scene of the crime.
Ruling of the RTC

After trial on the merits, in its Decision dated June 14, 2011, 7 the RTC convicted
Charito, together with Rogelio Lasconia, Eddie Olazo, and Miguel Corbis, of the cnme
charged. The dispositive portion of the said Decision reads:
chanRoblesvirtualLawlibrary

WHEREFORE, finding the Prosecution to have successfully proven the guilt of the
Accused Rogelio Lasconia alias "Tesing", Eddie Olazo, Miguel Corbis, alias "Blackie" and
Charito Fernandez, guilty beyond reasonable doubt of the crime as charge (sic), this
Court hereby sentences the aforesaid accused to suffer the penalty of RECLUSION
PERPETUA, ordering the aforesaid to indemnify the Heirs of the Offended Party in the
amount of Php.l 00,000.00 jointly and severally and to pay the cost.

SO ORDERED.8 chanroblesvirtuallawlibrary

Aggrieved, Charito appealed before the CA, along with Eddie Olazo and Miguel Corbis
(Accused-appellants). Accordingly, Accused-appellants filed their Brief dated August 8,
2012,9 while the Appellee, through the OSG, filed its Brief on January 22, 2013. 10chanrobleslaw

Ruling of the CA

In the questioned Decision, the CA affirmed the RTC insofar as it convicted Charito of
the crime charged. Notably, however, the CA acquitted Eddie Olazo and Miguel Corbis
on the ground that there was a lack of evidence in the records to sustain their
conviction. Quoted hereunder are the pertinent portions of the questioned Decision:
chanRoblesvirtualLawlibrary

Simply put, while accused-appellant Miguel Corbis had participated in conspiring to

commit robbery against the spouses Vallecera, sans any showing of his actual aid
or presence during its commission, or any overt act indicative of common
design, he cannot be held criminally culpable for such felony.

Moreover, as to the complicity of accused-appellant Eddie Olazo, We also find a total

bankruptcy in the records of the case that could even remotely exhibit his complicity
and culpability to the crime charged. The totality of the testimonies of the prosecution
is bare of any participation of Eddie Olazo. As tersely testified by state witness
Joseph Oronos, Eddie Olazo was never present during the planning of the
commission of the crime nor during the actual commission thereof.

xxxx

In the case at bench, such unity in purpose by accused-appellant Charito Fernandez to

the acts committed by his co-accused Rogelio Lasconia, Eddie Fernandez and Rommel
Escobio has been duly and clearly established by his act of planning with the other
accused the conduct of robbery, by accompanying them during its commission
and hasty getaway, as well as providing payment for their getaway vehicle
and even threatening their driver with mortal harm should be reveal what they
had committed. This (sic) established acts of accused-appellant Charito Fernandez
evinces beyond cavil his complicity and agreement of the unlawful criminal design of
Rogelio Lasconia, Eddie Fernandez and Rommel Escobio. 11 (Emphasis supplied)
On June 10, 2015, Charito filed a Notice of Appeal of even date with the CA, elevating
the case to this Court.12 chanrobleslaw

In a Resolution dated November 11, 2015,13 the Court instructed the parties to file their
respective Supplemental Briefs, if they so desired. In lieu of filing Supplemental Briefs,
however, the parties filed Manifestations respectively dated February 4, 2016 14 and
February 19, 2016,15 informing the Court that they were merely adopting their previous
Briefs submitted with the CA.

Issue

Proceeding from the foregoing, for resolution of this Court is the issue of whether or not
the RTC, as affirmed by the CA, erred in finding Charito guilty of the crime of Robbery
with Homicide.

The Court's Ruling

In the instant Appeal, Charito claims that the prosecution was unable to prove his guilt
beyond reasonable doubt. Specifically, Charito argues that the evidence showing his
participation in the planning stages of the crime was insufficient to sustain his
conviction and the finding of conspiracy between him and his co-accused.

We disagree.

To begin with, this Court has repeatedly recognized that the trial court is in the best
position to assess the credibility of witnesses and their testimonies given its unique
position to observe the elusive and incommunicable evidence of the witnesses'
deportment on the stand while testifying, which opportunity is denied to the appellate
courts.16 Hence, the trial court's assessment of the credibility of witnesses is accorded
great weight and respect and is binding on this Court, especially when affirmed by the
CA.17 chanrobleslaw

We see no reason to doubt the positive testimony of Joseph, especially when weighed
against the bare allegations of Charito,  i.e., that he was elsewhere having a drinking
spree during the time of the commission of the crime.

There is conspiracy when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. 19 Conspiracy is present when one
concurs with the criminal design of another, indicated by the performance of an overt
act which produces the crime.20 In proving conspiracy, direct evidence is not
indispensable as its existence may be inferred from the conduct of the accused before,
during, and after the commission of the crime.21 chanrobleslaw

In the instant case, the candid testimony of state witness Joseph unmistakably
produces a conviction beyond reasonable doubt. That Charito was present before,
during, and after the commission of the crime and that there was conspiracy between
the malefactors are findings fully supported by the evidence on record:
chanRoblesvirtualLawlibrary
2nd prosecution witness JOSEPH ORONOS, who turned state witness was presented on
the witness stand on January 23, 2008 to testify that on the month of July 2004,
Rogelio Lasconia or "TESING" together with his Auntie Dionesia Lasconia, Charito and
Miguel hired him to ferry them to Brgy. Barayong, to where Dionesia Lasconia
was living for the plan out of the proposed robbery and in the course of their
conversation, he overheard "ONING" or DIONESIA LASCONIA giving all the details
laying on the plan of robbery on the house of Atty. Vallecera with instruction to KILL
her master so that it will not be known that it was she who planned
everything. (TSN January 23, 2008, pp. 27-28, Crim. Case No. 2402, 2 nd prosecution
witness, JOSEPH ORONOS, Guarda).

Witness also admitted that in another instance he was hired by the same group at
around seven o'clock in the evening of August 8, 2004 to the Sto. Nino Park Rotunda of
Abuyog, Leyte and when they disembarked, he saw them went straight ahead of the
street and down towards the house of her master, at around 8:00 o'clock in the
evening.

On their return from Atty. Vallecera's house, "Oning" or Dionesia Lasconia was carrying
a bag and "Tesing" or Rogelio Lasconia was with a bolo in his hand, while the two
persons were barehanded, then he brought them near the house of "Tesing" in
Caranhug, Javier, Leyte, it was Charito who paid him two five-hundred peso
bill (sic) few days after. (TSN January 23, 2008, pp. 31-33, Crim. Case No. 2402,
2nd prosecution witness, JOSEPH ORONOS, Guarda)

x x x x

x x x Further admitted by him that on the month of August, the date and year he
cannot recall, he was hired by Rogelio Lasconia to ferry them to the place of Dionesia
Lasconia where he overheard their plan to rob her master with Dionesia
Lasconia laying all details whereby Rogelio, Miguel Corbis, and Charito
Fernandez uttered there is no problem about that. (TSN February 12, 2008, pp.
5-9, Crim. Case No. 2402, 2nd prosecution witness, JOSEPH ORONOS,
Tonog)22(Emphasis supplied)

Without doubt, Joseph positively identified Charito and declared that he saw him during
the initial planning of the commission of the crime and noted Charito's express
agreement thereto.23 Joseph also testified that he saw Charito in the evening of August
8, 2004, when he brought the accused near the house of the spouses Vallecera and
again upon their return to the drop-off area almost an hour later. 24 It was also
established that Charito paid Joseph for the use of his motorcycle two (2) days after the
commission of the crime and that he was threatened by Charito should the former
"squeal" on them.

These facts clearly evince unity of purpose and criminal design between Charito and his
cohorts.

Finally, we take note of the fact that the RTC and the CA had concurring factual and
legal findings insofar as they found Charito guilty of the crime of Robbery with
Homicide. Thus, in the absence of any showing that material facts or circumstances
were overlooked by the inferior courts, this Court affirms the questioned Decision.
With respect to the imposition of the appropriate penalty, the dispositive portion of the
questioned Decision stated:
chanRoblesvirtualLawlibrary

As to accused-appellant CHARITO FERNANDEZ, We find him GUILTY of the crime

charged and sentence him to suffer the penalty of reclusion perpetua. Accused-
Appellant Charito Fernandez is further ordered to pay the heirs of Erlinda Vallecera the
amount of Fifty Thousand Pesos (Php 50,000.00) as moral damages, Fifty Thousand
Pesos (Php 50,000.00) as civil indemnity and Forty Thousand Pesos (Php 40,000.00) as
actual damages. All monetary awards for damages shall earn interest at the legal rate
of six percent (6%) per annum from the date of finality of this Decision until fully paid.

SO ORDERED.26

Article 294(1) of the Revised Penal Code (RPC), as amended, 27 imposes the penalty
of reclusion perpetua to death when by reason or on occasion of the crime of Robbery
with violence against or intimidation of persons, the crime of Homicide is committed.
Considering that the imposable penalty for Robbery with Homicide consists of two (2)
indivisible penalties (i.e., death and reclusion perpetua), Article 63 of the RPC finds
application:
chanRoblesvirtualLawlibrary

Article 63. Rules for the application of indivisible penalties. - In all cases in which the
law prescribes a single indivisible penalty, it shall be applied by the courts regardless of
any mitigating or aggravating circumstances that may have attended the commission of
the deed.

In all cases in which the law prescribes a penalty composed of two indivisible penalties,
the following rules shall be observed in the application thereof:

1. When in the commission of the deed there is present only one aggravating
circumstance, the greater penalty shall be applied.

2. When there are neither mitigating nor aggravating circumstances in the commission
of the deed, the lesser penalty shall be applied.

xxxx

In this regard, we note that both the RTC and the CA failed to consider "evident
premeditation"28 and "taking advantage of superior strength"29 as ordinary, aggravating
circumstances, despite having been sufficiently alleged in the Information filed with the
RTC, viz:
chanRoblesvirtualLawlibrary

[T]hat on the occasion of the said robbery, the above-named accused, with intent to
kill, with evident premeditation and taking advantage of their superior
strength, conspiring, confederating, and mutually helping with one another, and in
pursuance of their conspiracy, did then and there willfully, unlawfully, and feloniously
attack, assault, slash the throat, stab, hack and wound ERLINDA T. VALLECERA with
the use of bladed weapon which the accused provided themselves for the purpose,
thereby hitting and inflicting upon her fatal wounds on the different parts of her body
which were the direct and proximate cause of her death. 30 (Emphasis supplied)

The requirements to prove the aggravating circumstance of evident premeditation are

the following: (i) the time when the offender determined to commit the crime; (ii) an
act manifestly indicating that the culprit has clung to his determination; and (iii)
sufficient lapse of time between the determination and execution to allow him to reflect
upon the consequences of his act.31 To warrant a finding of evident premeditation, it
must appear not only that the accused decided to commit the crime prior to the
moment of its execution, but also that such decision was the result of "meditation,
calculation, reflection, or persistent attempt". 32
chanrobleslaw

While we have previously ruled that the circumstance of evident premeditation is

inherent in Robbery,33 it may be considered in the special complex crime of Robbery
with Homicide if there is premeditation to kill besides stealing. 34 Here, the evidence
clearly established how and when Charito and his co-conspirators hatched their
malevolent plan to rob the spouses Vallecera and likewise "kill [Dionesia Lasconia's]
master".35 As discussed above, the first attempt of the malefactors to carry out their
scheme was foiled and it was only on their second attempt that they were able to
consummate the conspiracy. Hence, that there were persistent attempts made by the
accused sufficiently demonstrate how determined they were to adhere to their
agreement despite the sufficient lapse of time. Moreover, that Charito and his cohorts
went to great lengths to hire Joseph to ferry them back and forth to the scene of the
crime shows the sobriety and circumspection surrounding their decision. Such
circumstances therefore show that the crime committed was a product of intent and
coordination among the accused. Hence, the aggravating circumstance of evident
premeditation is present in this case.

Meanwhile, to appreciate the qualifying circumstance of abuse of superior strength,

what is to be considered is whether the aggressors took advantage of their combined
strength in order to consummate the offense, e.g., that excessive force out of
proportion to the means of defense available to the victim was used. 36 In the case at
bench, the records disclose that during the commission of the offense, Nicanor
Vallecera was hogtied by three (3) of the perpetrators, while Erlinda Vallecera, a
woman, was successively and fatally injured using a samurai sword and a long knife.
Clearly, the means employed by the culprits were patently excessive, there being no
indication of retaliation from the spouses Vallecera as their means of defense were
greatly, if not absolutely, diminished. In this regard, the aggravating circumstance of
"superior strength" is properly cognizable.

Proceeding from the foregoing, applying Article 63 of the RPC would mean that the
imposable penalty on the accused would be death given the presence of two (2)
aggravating circumstances. However, in view of Republic Act No. 9346, and as correctly
ruled by the CA, the imposition of the penalty of death has been prohibited and in lieu
thereof, the penalty of reclusion perpetua is to be imposed.

Accordingly, recognizing the presence of the two (2) aggravating circumstances affects
the proper amount of damages to be imposed. Thus, in our recent ruling in People v.
Jugueta,37 we held that the principal consideration is "the penalty provided by law or
imposable for the offense because of its heinousness, not the public penalty actually
imposed on the offender". Here, since the penalty of death would have been imposed
were it not for Republic Act No. 9346, the original award of Fifty Thousand Pesos
( 50,000.00) for moral damages and civil indemnity should be increased to One
Hundred Thousand Pesos (100,000.00) each.  Further, in light of the socially
reprehensible conduct exhibited by Charito, and to serve as a deterrent to others
similarly inclined, we deem it just to award exemplary damages in the amount of One
Hundred Thousand Pesos (100,000.00). Thus, in conformity with prevailing
jurisprudence,38 we modify the award of damages made by the CA.

WHEREFORE, in view of the foregoing, the appeal is DISMISSED for lack of merit.

The Decision dated June 2, 2015 of the Court of Appeals in CA-G.R. CR HC No. 01417,
finding accused-appellant Charito Fernandez GUILTY beyond reasonable doubt of the
crime of Robbery with Homicide under Article 294 of the Revised Penal Code, as
amended, is hereby AFFIRMED with MODIFICATION, sentencing him to suffer the
penalty of reclusion perpetua and ordering him to pay the heirs of Erlinda Vallecera the
amount of One Hundred Thousand Pesos (P 100,000.00) as civil indemnity, One
Hundred Thousand Pesos (P100,000.00) as moral damages, One Hundred Thousand
Pesos (P100,000.00) as exemplary damages, and Forty Thousand Pesos (P40,000.00)
as actual damages.39 All monetary awards shall earn interest at the legal rate of six
percent (6%) per annum from the date of finality of this Decision until fully paid.

SO ORDERED.

G.R. No. L-9773            November 20, 1914

THE UNITED STATES, plaintiff-appellee,

vs.
EULALIO CORNEJO, defendant-appellant.

Marcelo Cariñgal for appellant.

Attorney General Avanceña for appellee.

ARELLANO, C.J.:

On the night of November 2, 1913, Zacarias Cabello was preparing a supper in his house which was
to be served outside in the yard (called in the record a plazuela or small square). Some of the
guests had already arrived in the yard by 7 o'colck, and about five of them were in the house
upstairs. Among these latter was Agaton Salazar, who had gone there to assist the host in preparing
the meal. Shortly afterwards Pedro Reyes and Eulalio Cornejo arrived. These two men induced and
have him come down. The boy did so and Agaton Salazar descended, holding his shirt in his hands
and wearing a pair of wooden clogs. Pedro Reyes told Salazar that he needed him and they, with
the defendant, went aside to the south of the house. Reyes led the way, Salazar followed him and
behind the latter went Cornejo. After they had gone a few yards, Reyes, without saying a single
word, turned halfway around and struck Salazar a blow on the head with a palma-brava club he was
carrying and immediately followed it up with two more blows. When Salazar stopped over, Cornejo
struck him several blows in the face with a bolo, and then the two assailants immediately took to
flight. Such was the uniform testimony given by the owner of the house, Cabello, the boy
aforementioned, named Eulalio Villamil, and Potenciano Lasala, all of whom were eyewitnesses to
the affair, which took place in the municipality of Taal, Province of Batangas.

According to the medical examination, the blow was inflicted with a palma-brava club with
sharpened edges which fractured two bones in the frontal parietal region and caused a very serious
injury. The victim did not regain consciousness from the time he was struck until he died, six days
afterwards, and the physician believed that this wound was the cause of his death. The examination
further showed that the deceased received another wound in the cheek, not of a serious nature,
caused by a cutting instrument, and still another light one, likewise effected by means of a cutting
instrument, which split his lips and an incisor tooth on the left side; finally, there were several bruises
on the right wrist and the back of one of the forefingers, black ad blue spots on the eyelids and both
lips, and bleeding at the nose.

Inocencio Aceron testified that on Sunday, November 2, 1913 (the day of the occurrence), he had
left his house and his barrio about 8 o'clock in the morning in search of some cows and, while
passing by the barrio of Halang of the same municipality of Taal, he saw Reyes and Cornejo, old
acquaintances of his, in a shack. The former was engaged in putting an edge on the corners of
a palma-brava club, and the latter was sharpening a bolo. While witness was talking with them, the
idea occurred to him to ask why they were so busily engaged in that way, and they replied that they
were going to kill a bachelor of the barrio of Talon.

The defendant admitted having been at the house of Zacarias Cabello because he had been invited
by one Primitivo Magsino, who also went there to escort his sister Maria back home. He heard, but
did not see, the quarrel between Reyes and Salazar. He went home about 7 o'clock, but as his
mother told him there was nothing to eat, he went to his uncle's house and there spent the night; the
next day he went to Lipa. However, in his same testimony, defendant said that after the quarrel
between Reyes and Salazar he remained for an hour on the bench where he was seated, without
moving. Primitivo Magsino testified that five minutes after Salazar entered the house, witness, his
sister, the defendant, and a man named Vicente went away. Zacarias Cabello denied that either
Primitivo or Vicente had been at his house that night, though he asserted that Maria was there and
that he sent Potenciano Lasala to accompany her on her return home. The defendant's mother told
the policeman who was looking for him that night, that he had not returned home. Cabello himself
went to the house of the defendant that night in order that they might arrest him, but neither then nor
on the following days could he be found there, nor in the field where he was in the habit of working
before the crime was committed.

The Court of First Instance of Batangas tried and sentenced the defendant for murder, and stated
that he had not the least doubt of his guilt. He classified the crime as murder "because the killing of
Agaton Salazar was attended by the two circumstances of treachery and deliberate premeditation,
although one of these is sufficient for the qualification of the said crime. The record sufficiently
proves that there was treachery, for the defendant Eulalio Cornejo and the fugitive Pedro Reyes
attacked the deceased in a manner which he did not expect and in such wise that he had not time to
defend himself from their assault. It is also proven that there was premeditation, because, as above
mentioned in the statement of facts, on the morning of the day of the occurrence, the defendant
Eulalio Cornejo and Pedro Reyes prepared the weapons with which they attacked the deceased that
night."

Of the qualifying circumstances mentioned, one was held to be a generic aggravating circumstance
which should increase the penalty; but it was offset by the extenuating one of article 11 on account
of the defendant's lack of education. Eulalio Cornejo was accordingly sentenced to seventeen years
four months and one day of cadena temporal, to the accessory penalties, to pay an indemnity of
P1,000 to the heirs of the deceased, and the costs.

The defendant appealed. After a consideration of his appeal, we find that the evidence was duly
weighed in accordance with the merits of the case, and that the finding of the qualifying
circumstance of treachery was proper. There was treachery if the attack was sudden and
unexpected and not preceded by a dispute and the deceased was unable to prepare himself for his
defense, though he was face to face with his assailant. (Decisions of November 16 and 23, 1900;
November 21, 1901; and May 20, 1903.)

We also find that the aggravating circumstance of deliberate premeditation was also properly taken
into account in accordance with the law. When, besides treachery, there is premeditation, the latter
constitutes an aggravating circumstance. (Decision of May 9, 1877). This circumstance must be
considered when the crime was planned by the guilty party, when he prepared beforehand the
means which he deemed suitable for carrying it into execution, and when he had sufficient time
dispassionately to consider and accept the consequences. (Decisions of Dec. 26, 1887, and Sep. 1,
1893.) there is premeditation when there appears to have been a concerted plan t commit the crime
(decision of June 4, 1870), as in the case at bar, where Reyes immediately preceded the deceased
and the defendant followed him, the victim being thus caught between two well-aimed blows.

Finally, the opinion of the trial judge is in line with the principles of penal sanction in finding that the
defendant was guilty as a principal and nothing else, although it was known that the death of the
victim was due to definite action by the co-defendant. For only where there has been no agreement
to cause the harm produced can acts, performed jointly, in common and simultaneously, be
separated and the respective parts be defined in a crime where one attacks with a club and the other
wounds the victim with a cutting weapon; in such case there would clearly be two separate and
distinct inquiries. (Decision of January 11, 1905.) But when there was an understanding, all who
participated in the pre-concerted crime are liable for the means which each of them employed to
carry such crime into effect, and for the consequences thereof. (Decisions of December 24, 1901;
March 26, 1903; March 22 and 30, and May 31, 1905.) lawphi1 .net

The only modification to be made in the sentence is the degree in which the penalty should be
applied. The penalty being cadena temporal in its maximum degree to death, it should be raised to
that of death, by reason of the generic aggravating circumstance taken into account. Without this
aggravating circumstance the extenuating one of article 11 would reduce the penalty to the minimum
degree, as it was in the sentence imposed; but, compensating this extenuating circumstance by that
aggravating one, the penalty should be applied in the medium degree, or cadena perpetua.

With the understanding that the defendant is sentenced to cadena perpetua, the judgment appealed
from is, in all other respects, affirmed, with the costs of this instance against the appellant.

FIRST DIVISION

G.R. No. 208351, October 05, 2016

 BENJAMIN RUSTIA, JR., BENJAMIN RUSTIA, SR., AND FAUSTINO "BONG"
RUSTIA, Petitioners, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

BERSAMIN, J.:

In a criminal prosecution for murder qualified by the attendant circumstance of

treachery, the means, method, or form of the attack must be shown to have been
consciously and deliberately adopted by the offender before the same can be
considered to qualify the killing. Otherwise, the killing amounts only to homicide.

The Case

This appeal is taken by all the accused from the decision promulgated on July 16, 2013
in CA-G.R. CR-H.C. No. 04864,1 whereby the Court of Appeals (CA) affirmed with
modification the judgment rendered on November 25, 2010 by the Regional Trial Court
(RTC) in Santiago City2 finding petitioner Benjamin Rustia, Jr. (Benjamin, Jr.) guilty as
principal in the crime of murder qualified by treachery, and his co-petitioners Benjamin
Rustia, Sr. (Benjamin, Sr.) and Faustino Rustia (Faustino) guilty as accomplices in the
crime of murder.

Antecedents

The petitioners were charged with murder for the killing of the late Ambrocio Cristin
(Ambrocio) under the amended information that reads: ChanRoblesVirtualawlibrary

That on or about the 14th day of June, 2008, at Brgy. Malvar, City of Santiago,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, with malice aforethought and with deliberate intent to take the life of
AMBROCIO CRISTIN, did then and there willfully, unlawfully, feloniously, and
treacherously shot the defenseless victim [sic] AMBROCIO CRISTIN which mode of
attack BENJAMIN RUSTIA JR consciously adopted, with an unknown firearm, inflicting
gunshot wounds upon AMBROCIO CRISTIN being necessarily mortal,· that eventually
caused the death of the said AMBROCIO CRISTIN [sic]

That in the course of the killing of said AMBROCIO CRISTIN said Benjamin Rustia, Sr.,
and Faustino Rustia, knowing of the criminal design of Benjamin Rustia, Jr., concur with
the latter in his purpose, did then and there willfully, unlawfully and feloniously
cooperate in the execution of the crime of murder by their simultaneous and collective
acts of grappling and restraining the victim until Benjamin Rustia, Jr., was able to wrest
possession of the gun from the victim thereby supplying both material and moral aid in
the execution of the said crime of murder.

CONTRARY TO LAW.3 chanroblesvirtuallawlibrary

The CA summarized the evidence adduced at trial as follows: ChanRoblesVirtualawlibrary

The prosecution presented Lilia Cristin ("Lilia" for brevity), Steve Pablo ("Pablo" for
brevity), Ferdinand Samin ("Samin" for brevity), Rolando Sanchez Buenaventura
("Buenaventura" for brevity), and Dr. Jeffrey Demano ("Dr. Demano" for brevity), in
order to prove the following:
 On June 14, 2008, at around 1:30 in the afternoon, the victim Ambrocio Cristin
chanRoblesvirtualLawlibrary

("victim" or "Cristin" for brevity) went to the Barangay Hall of Malvar, Santiago City to
meet accused-appellants Rustia, Jr., Rustia, Sr., and Faustino, in order to talk to them
about the land that victim Cristin had bought from a certain Agcaoile.

Since the Barangay Captain was out, accused-appellants and victim Cristin left the
Barangay Hall. They were arguing.

Accused-apppellant Rustia, Jr. suddenly restrained the victim Cristin on his waist.
Accused-appellants Rustia, Sr. and Faustino helped accused-appellant Rustia, Jr.
restrain both hands of the victim. They all "grappled", and fell on the ground.

When the victim was lying on the ground, accused-appellant Rustia, Jr. took the
victim's gun that was tucked inside the victim's waist. Accused-appellant Rustia, Jr.
then cocked the gun and pointed it at the victim Cristin. The latter immediately raised
his arms to surrender, saying, "Madinak lumaban" (I will not fight). However, accused
appellant Rustia, Jr. shot the victim Cristin. Accused-appellant Rustia, Jr. started to
walk away, but returned and fired another shot at the victim. Accused appellants
Rustia, Jr., Rustia, Sr., and Faustino then boarded their tricycle, and left the place. The
events were witnessed by [Buenaventura], Pablo and Samin.

Afterwards, the witnesses Buenaventura and Samin brought the victim Cristin to the
Flores Hospital.

According to the victim Cristin's wife, Lilia when her husband was at the Flores Hospital,
the victim was able to tell her that accused appellant Rustia, Jr. was the one who shot
him.

Victim Cristin was then transferred to the De Vera Medical Center for further treatment.

As testified to by Dr. Demano, who was the doctor who examined the victim on June
18, 2008 at the De Vera Medical Center, the cause of death of victim Cristin was a
gunshot wound on the victim's neck. According to Dr. Demano, the gunshot wound's
entry point was at the anterior neck area, and the exit point was at the posterior area
of the skull at the back.

On June 24, 2008, the victim Cristin died as a result of that gunshot wound on his neck.

The defense, on the other hand, presented the sole testimony of accused-appellant
Rustia, Jr., in order to prove the following:

On June 14, 2008 at about 2:00 in the afternoon, accused-appellant Rustia, Jr.,
chanRoblesvirtualLawlibrary

together with his father, accused-appellant Rustia, Sr., and his brother, accused-
appellant Faustino were at the Barangay Hall in Malvar, Santiago City to talk to the
victim Cristin about the land of accused appellant Rustia, Sr., which land was being
occupied by the victim Cristin. The barangay captain was not around at that time.

Accused-appellant Rustia, Sr. talked to the victim Cristin in order for the latter to return
the land of accused-appellant Rustia, Sr. However, victim Cristin refused to return the
land, and got angry. He uttered "fukkenenam", which meant "vulva of your mother".

Accused-appellant Rustia, Jr. saw that victim Cristin had a gun tucked in his waist, so,
he, together with his father, accused-appellant Rustia, Sr., and brother, accused-
appellant Faustino "tried to avoid" the victim.

When accused-appellant Rustia, Sr. was about to leave the Barangay Hall, accused-
appellant Rustia, Jr. saw the victim Cristin draw his gun. Accused-appellant Rustia, Jr.
grabbed the victim Cristin, causing all of them to fall down. Rustia, Jr. and the victim
Cristin grappled for the possession of the victim's gun. Accused-appellant Rustia, Jr.
was able to take the victim's gun. Then, accused-appellant Rustia, Jr. shot the victim
twice.

After having shot the victim Cristin, accused-appellants Rustia, Jr., Rustia, Sr., and
Faustino left. Accused-appellant Rustia, Jr. then threw the gun. 4 chanroblesvirtuallawlibrary

On November 25, 2010, the RTC rendered judgment finding and pronouncing Benjamin,
Jr. guilty as principal in murder, and Rustia, Sr. and Faustino guilty as accomplices in
murder, disposing: ChanRoblesVirtualawlibrary

WHEREFORE in light of the foregoing considerations the Court finds the accused
Benjamin Rustia, Jr. GUILTY beyond reasonable doubt of murder and hereby sentences
him to the penalty of reclusion perpetua. The Court also finds the two other accused
Benjamin Rustia, Sr. and Faustino Bong Rustia GUILTY as accomplices to the crime of
murder and hereby sentences each of them to an indeterminate penalty of eight (8)
years, eight (8) months and one (1) day of prision mayor as minimum, to fourteen (14)
years, eight (8) months and one (1) day of reclusion temporal as maximum. In addition
the accused are ORDERED TO PAY jointly and solidarily, to the widow of the deceased
Ambrocio Cristin the sum of One hundred three thousand two hundred eighty one pesos
(P103,281.00) as actual damages; Twenty five thousand pesos (P25,000.00) as
temperate damages; Fifty thousand pesos (P50,000.00) as death indemnity; Fifty
thousand pesos (P50,000.00) as moral damages; and, Twenty five thousand pesos
(P25,000.00) as exemplary damages.5 chanroblesvirtuallawlibrary

Decision of the CA

On appeal, the petitioners assailed the adverse findings of the RTC, asserting that they
had only acted in self-defense; that the RTC had is regarded Benjamin, Jr.'s testimony
showing that Ambrocio had been reaching for the gun tucked in his waist; that
Benjamin, Jr. had only reacted to defend himself by the instinct of self-preservation;
and that Benjamin, Sr. and Faustino had not been sufficiently identified by the
Prosecution's witnesses.

In its now assailed decision, the CA ruled that because Benjamin, Jr. had invoked self-
defense, the burden of evidence had shifted to him; that such defense was not
established because no unlawful aggression could be attributable to the victim; that
even assuming that the victim had been perceived to have been about to draw his gun,
as the petitioners insisted, that act by itself could not be considered an act of unlawful
aggression because the danger from him had ceased once Benjamin, Jr. had
successfully wrested the gun from the victim; that the victim had already raised his
hands to indicate his surrender just before he had been shot; and that the number,
location, and severity of the wounds inflicted on the victim further negated the claim of
self-defense; that treachery had been attendant because the attack against the victim
had been unexpected, precise, and sudden, rendering the victim unable to defend
himself; and that Benjamin, Sr. and Faustino had been accomplices to the crime.

The CA modified the civil liability by deleting the temperate damages; and increasing
the exemplary damages from P25,000.00 to P30,000.00.6 chanrobleslaw

Issues

In this appeal, the petitioners insist that:

I

THE AMENDED INFORMATION FAILS TO SPECIFICALLY ALLEGE THE FACTUAL

CIRCUMSTANCES OR PARTICULAR ACTS THAT CONSTITUTE TREACHERY.

II

THE COURT OF APPEALS GRAVELY ERRED IN APPRECIATING THE QUALIFYING

CIRCUMSTANCE OF TREACHERY

III

THE COURT OF APPEALS GRAVELY ERRED IN CONVICTING PETITIONER BENJAMIN

RUSTIA, JR. OF MURDER INSTEAD OF HOMICIDE.

IV

THE COURT OF APPEALS ERRED IN CONVICTING PETITIONERS BENJAMIN RUSTIA, SR.

AND FAUSTINO RUSTIA AS ACCOMPLICES.

THE TRIAL COURT AND THE COURT OF APPEALS SHOULD HAVE CONSIDERED
INCOMPLETE SELF-DEFENSE AS A SPECIAL MITIGATING CIRCUMSTANCE. 7 chanroblesvirtuallawlibrary

In short, the decisive query is whether or not the offense committed was murder,
qualified by treachery.

In its comment, the Office of the Solicitor General points out that the petitioners took
issue with the perceived insufficiency of the amended information on the circumstance
of treachery being raised only for the first time on appeal to this Court.

Ruling of the Court

The petition is partly meritorious.

Treachery as an attendant circumstance must be alleged and established beyond

reasonable doubt. The lower courts ruled herein that treachery was attendant based on
the fact that the attack had been unexpected and sudden because it had been mounted
at a time when Ambrocio was lying on the floor with his hands raised in surrender.
Treachery exists when the following elements are present: (a) at the time of the attack,
the victim was not in a position to defend himself; and (b) the accused consciously and
deliberately adopted the particular means, methods, or forms of attack employed by
him.8 Thus, it is not sufficient that the victim was unable to defend himself. The
Prosecution must show that the accused consciously adopted such mode of attack to
facilitate the perpetration of the killing without risk to himself. 9 chanrobleslaw

The incident was precipitated by the heated argument between the petitioners and the
victim. Tempers were already high when the four of them were leaving the barangay
hall. At that point, Benjamin, Jr. grappled with Ambrocio for control of the gun that
Ambrocio had brought with him. While the shooting was sudden, Ambrocio could not be
said to have been defenseless at that point. According to the RTC, he was then
struggling and fighting back.10 During the grappling, his gun was still tucked in his
waist. Even so, it cannot be concluded that their scuffle was without risk to Benjamin,
Jr. in as much as there was then no guarantee that Benjamin, Jr. would come out on
top with control of the gun. Only the subsequent intervention of Benjamin, Sr. and
Faustino that Benjamin, Jr. succeeded in bringing Ambrocio down to the ground and
secure control of the firearm. The CA and the RTC considered Ambrocio as defenseless
after he had been brought down with his hands up.

Taking into consideration everything leading up to that moment of Ambrocio being

defenseless on the ground, we cannot justifiably state that Benjamin, Jr. had
consciously and deliberately sought and brought about that situation to be
advantageous to him. In our view, such situation was rather from pure happenstance,
having resulted from their physical grappling. This persuades us to somehow undo the
conclusion reached by both lower courts to the effect that Benjamin, Jr. had consciously
and deliberately adopted the means, method, or form of the fatal shooting in order to
ensure the execution of the criminal design to kill.

Furthermore, all the circumstances in the record indicated that the killing of Ambrocio
had been done in the heat of the moment. It is quite clear that Benjamin, Jr. had not
set out to kill Ambrocio when they both agreed to meet in order to discuss their land
dispute. The fact also remains that it was the victim who had brought the gun to the
meeting. In contrast, Benjamin, Jr. did not appear to have prepared his own weapon to
commit the crime. To establish the attendance of treachery in such an environment, the
State's evidence must competently and convincingly show that the accused made some
preparation to kill the victim; hence, a killing done at the spur of the moment cannot be
treacherous.11 Even where the victim was shot from behind, if the shooting was done in
the course of a heated argument between the victim and the assailant, treachery
should not be appreciated, for in that situation, the assailant was filled with anger and
rage and excitement, and had no time to reflect on his actions; in other words, he could
not be shown to have consciously adopted the mode of attacking the victim from
behind to facilitate the killing without risk to himself. 12
chanrobleslaw

In the same manner, the petitioner's claim of incomplete self-defense must fail for
being unsupported by the evidence. This privileged mitigating circumstance requires the
indispensable element of unlawful aggression, the nature of which we have explained
in People v. Dulin:13

x x x The test for the presence of unlawful aggression under the circumstances is
whether or not 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.
The burden of proving unlawful aggression belonged to the petitioners. According to
them, unlawful aggression manifested itself when Ambrocio reached for the gun tucked
in his waist. Yet, they did not thereby establish that Ambrocio had really reached for his
gun and actually taken it out. What we have on this defense was instead the sole
recollection of Benjamin, Jr., which, being uncorroborated even by the other
petitioners, was accorded scant consideration by both the RTC and the CA. It is
remarkable at least that none of the three disinterested eyewitnesses saw Ambrocio
reaching for the gun first. Thus, the claim of incomplete selfdefense is rejected.

There being no treachery, the crime committed by Benjamin, Jr. was only homicide.
Article 249 of the Revised Penal Code defines homicide and penalizes it with reclusion
temporal. Applying the Indeterminate Sentence Law, and in the absence of any
modifying circumstances, the maximum of the indeterminate sentence is taken from
the medium period of reclusion temporal (from 14 years, eight months and one day to
17 years and four months), while the minimum is taken from prision mayor, the penalty
next lower (from six years and one day to 12 years). Accordingly, the indeterminate
sentence of eight years of prision mayor, as minimum, to 14 years, eight months and
one day of reclusion temporal, as maximum, is hereby imposed.

Anent the criminal liability of Benjamin, Sr. and Faustino as accomplices, we grant the
petition for review.

Article 18 of the Revised Penal Code provides that accomplices are the persons who,
not being included in Article 17, cooperate in the execution of the offense by previous
or simultaneous acts. The principals included in Article 17 are: (1) those who take a
direct part in the execution of the act; (2) those who directly force or induce others to
commit it; and (3) those who cooperate in the commission of the offense by another
act without which it would not have been accomplished.
In order that a person may be considered an accomplice, three elements must be
shown to concur, namely: (1) that there be a community of design, that is, knowing the
criminal design of the principal by direct participation, he concurs with the latter in his
purpose; (2) that he cooperates in the execution by previous or simultaneous act, with
the intention of supplying material or moral aid in the execution of the crime in an
efficacious way; and (3) that there be a relation between the acts done by the principal
and those attributed to the person charged as accomplice. 14 chanrobleslaw

The cooperation that the law punishes is the assistance knowingly or intentionally
rendered that cannot exist without previous cognizance of the criminal act intended to
be executed.15 But it cannot be said that Benjamin, Sr. and Faustino knew that
Benjamin, Jr. would shoot the victim. As earlier observed, the fatal shooting was done
in the heat of the moment, not premeditated or preconceived. Their group was making
its way out of the barangay hall when Benjamin, Jr. suddenly grabbed Ambrocio around
the waist, and the two of them started to wrestle with each other. Up to that point,
nothing indicated that Benjamin, Jr. intended to grab Ambrocio's gun and use it against
him. From their point of view, Benjamin, Sr. and Faustino were witnessing their closest
of kin suddenly engaged in the physical struggle with Ambrocio whom they knew was
armed with a gun. Going to the aid of Benjamin, Jr. was but their most natural reaction.
That their going to the latter's aid might have enhanced the changes of Benjamin, Jr. in
gaining control of the victim's firearm, but such did not unavoidably mean that they had
themselves intended such outcome. Nor did they contemplate such outcome in the
absence of any clear showing that they deliberately went to his aid to ensure his seizure
of the firearm from Ambrocio. As things stood, their acts could also mean that they
were only trying to stop the grappling from escalating into violence. Until the time when
Benjamin, Jr.'s intention became known to them that is, when he finally had full control
of the gun, he cocked it and pointed it at the victim nothing in the records established
that Benjamin, Sr. and Faustino continued to provide material and moral aid to
Benjamin, Jr.

Under the established circumstances, whether or not Benjamin, Sr. and Faustino were
cognizant of Benjamin, Jr.'s felonious intention is unclear. At the very least, such lack of
clarity raises doubt about their cooperation in the commission of the crime by
Benjamin, Jr. We resolve the doubt in their favor, and decide to absolve them of
criminal liability as accomplices.

Nonetheless, we adjust the civil damages awarded to conform with prevailing

jurisprudence in respect of crimes that result in the death of the victim and the penalty
consists of divisible penalties, like homicide. 16 The heirs of the victim herein are entitled
to civil indemnity of P50,000.00, moral damages of P50,000.00, and P50,000.00 as
exemplary damages. The actual damages of P103,281.00 are also maintained because
no issue was raised in relation thereto.

Finally, current judicial policy requires the imposition of interest at the legal rate of
6% per annum on all the damages from the finality of this decision until fully paid. 17 chanrobleslaw

WHEREFORE, the Court PARTIALLY GRANTS the petition for review

on certiorari; AFFIRMS the decision promulgated on July 16, 2013 by the Court of
Appeals subject to the MODIFICATIONS that petitioner BENJAMIN RUSTIA,
JR. is FOUND AND PRONOUNCED GUILTY BEYOND REASONABLE
DOUBT of HOMICIDE, and, ACCORDINGLY, SENTENCES him to suffer
the INDETERMINATE PENALTY of eight years of prision mayor, as minimum, to 14
years, eight months and one day of reclusion temporal, as maximum, with full credit of
his preventive imprisonment; ORDERS petitioner BENJAMIN RUSTIA, JR. to pay to
the heirs of the late Ambrocio Cristin the amounts of P50,000.00 as civil indemnity,
P50,000.00 as moral damages, and P103,281.00 as actual damages, with interest at
the legal rate of 6% per annum from the finality of this decision until fully
paid; ACQUITS petitioners BENJAMIN RUSTIA, SR. and FAUSTINO RUSTIA for
insufficiency of evidence; and DIRECTS petitioner BENJAMIN RUSTIA, JR. to pay the
costs of suit.

SO ORDERED.