Criminal Law I (COMPILATION)Page |1

Criminal Law 1 Case List 5

1 Liang v. People G.R. NO. 125865 323 SCRA 392 2 People v. Escote G.R. No. 140756 400 SCRA 603
2 U.S. v. AH Chong G.R. No. L-5272 15 PHIL 488 6
3 People v. Cagoco G.R. No. L-38511 58 PHIL 524
4 Urbano v. IAC G.R. No. L-72964 157 SCRA 1
5 People v. Pugay G.R. No. L-74324 167 SCRA 439
6 Intod v. IAC G.R. No. 103119 215 SCRA 52
7 Calimutan v. People G.R. No. 152133 482 SCRA 44
8 People v. Orita G.R. No. 88724 184 SCRA 105
9 People v. Lamahang G.R. No. L-43530 61 PHIL 703
1 People v. Bauden G.R. No. L-270 77 PHIL 105
0
1 People v. Manero Jr. G.R. No. 86883-85 218 SCRA 85
1
1 People v. Bangcado G.R. No. 132330 346 SCRA 189
2
1 People v. Cariquez G.R. No. 129304 315 SCRA 247
3
1 People v. Patalin Jr. G.R. No. 125539 311 SCRA 186
4
1 People v. Genosa G.R. No. 135981 419 SCRA 537
5
1 People v. Narvaez G.R. No. L-33466-67 121 SCRA 389
6
1 People v. Jaurigue CA. No. 384 76 PHIL 174
7
1 Cabanlig v. G.R. No. 148431 464 SCRA 324
8 Sandiganbayan
1 Sycip v. CA G.R. No. 125059 328 SCRA 447
9
2 People v. Carino G.R. No. 131117 432 SCRA 57
0
2 People v. Comadre G.R. No. 153559 431 SCRA 366
1
2 People v. Dela Cruz G.R. No. 154348-50 431 SCRA 388
2
2 People v. Latag G.R. No. 153213 420 SCRA 695
3
2 People v. Reforma G.R. No. 133440 431 SCRA 133
4
2 People v. Brecinio G.R. No. 138534 425 SCRA 616

G.R. No. 125865. January 28, 2000.*
JEFFREY LIANG (HUEFENG), petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
International Law; Foreign Affairs; Diplomatic Immunity; Courts;
Due Process; Courts cannot blindly adhere and take on its face a
communication from the Department of Foreign Affairs that a particular
person is covered by any immunity; Due process is a right of the accused as
much as it is of the prosecution.—Courts cannot blindly adhere and take on
its face the communication from the DFA that petitioner is covered by any
immunity. The DFA’s determination that a certain person is covered by
immunity is only preliminary which has no binding effect in courts. In
receiving ex-parte the DFA’s advice and in motu proprio dismissing the two
criminal cases without notice to the prosecution, the latter’s right to due
process was violated. It should be noted that due process is a right of the
accused as much as it is of the prosecution. The needed inquiry in what
capacity petitioner was acting at the time of the alleged utterances requires
for its resolution evidentiary basis that has yet to be presented at the proper
time. At any rate, it has been ruled that the mere invocation of the immunity
clause does not ipso facto result in the dropping of the charges.
Same; Same; Same; Criminal Law; Slander; Slandering a person could
not possibly be covered by the immunity agreement between the Asian
Development Bank and the Republic of the Philippines because our laws do
Criminal Law I (COMPILATION)Page |2
not allow the ccmmission of a crime, such as defamation, in the name of
official duty.—Slandering a person could not possibly be covered by the
immunity agreement because our laws do not allow the commission of a
crime, such as defamation, in the name of official duty. The imputation of
theft is ultra vires and cannot be part of official functions. It is well-settled
principle of law that a public official may be liable in his personal private
capacity for whatever damage he may have caused by his act done with
malice or in bad faith or beyond the scope of his authority or jurisdiction. It
appears that even the government’s chief legal counsel, the Solicitor General,
does not support the stand taken by petitioner and that of the DFA.
Courts; Criminal Procedure; Preliminary Investigation; Preliminary
investigation is not a matter of right in cases cognizable by the MeTC—being
purely a statutory right, it may be invoked only when specifically granted by
law.—On the contention that there was no preliminary investigation
conducted, suffice it to say that preliminary investigation is not a matter of
right in cases cognizable by the MeTC such as the one at bar. Being purely a
statutory right, preliminary investigation may be invoked only when
specifically granted by law. The rule on criminal procedure is clear that no
preliminary investigation is required in cases falling within the jurisdiction of
the MeTC. Besides, the absence of preliminary investigation does not affect
the court’s jurisdiction nor does it impair the validity of the information or
otherwise render it defective.
PETITION for review on certiorari of a decision of the Regional Trial
Court of Pasig City, Br. 160.
The facts are stated in the opinion of the Court.
     Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for
petitioner.
     The Solicitor General for respondent
YNARES-SANTIAGO, J.:
This resolves petitioner's Motion for Reconsideration of our Decision dated
January 28, 2000, denying the petition for review.
The Motion is anchored on the following arguments:
1) THE DFA'S DETERMINATION OF IMMUNITY IS A POLITICAL
QUESTION TO BE MADE BY THE EXECUTIVE BRANCH OF THE
GOVERNMENT AND IS CONCLUSIVE UPON THE COURTS.

2) THE IMMUNITY OF INTERNATIONAL ORGANIZATIONS IS
ABSOLUTE.
3) THE IMMUNITY EXTENDS TO ALL STAFF OF THE ASIAN
DEVELOPMENT BANK (ADB).
4) DUE PROCESS WAS FULLY AFFORDED THE COMPLAINANT TO
REBUT THE DFA PROTOCOL.
5) THE DECISION OF JANUARY 28, 2000 ERRONEOUSLY MADE A
FINDING OF FACT ON THE MERITS, NAMELY, THE SLANDERING OF A
PERSON WHICH PREJUDGED PETITIONER'S CASE BEFORE THE
METROPOLITAN TRIAL COURT (MTC)-MANDALUYONG.
6) THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS IS NOT
APPLICABLE TO THIS CASE.
This case has its origin in two criminal Informations1 for grave oral
defamation filed against petitioner, a Chinese national who was employed as
an Economist by the Asian Development Bank (ADB), alleging that on
separate occasions on January 28 and January 31, 1994, petitioner allegedly
uttered defamatory words to Joyce V. Cabal, a member of the clerical staff of
ADB. On April 13, 1994, the Metropolitan Trial Court of Mandaluyong City,
acting pursuant to an advice from the Department of Foreign Affairs that
petitioner enjoyed immunity from legal processes, dismissed the criminal
Informations against him. On a petition for certiorari and mandamus filed by
the People, the Regional Trial Court of Pasig City, Branch 160, annulled and
set aside the order of the Metropolitan Trial Court dismissing the criminal
cases.
Petitioner, thus, brought a petition for review with this Court. On January 28,
2000, we rendered the assailed Decision denying the petition for review. We
ruled, in essence, that the immunity granted to officers and staff of the ADB
is not absolute; it is limited to acts performed in an official capacity.
Furthermore, we held that the immunity cannot cover the commission of a
crime such as slander or oral defamation in the name of official duty.
On October 18, 2000, the oral arguments of the parties were heard. This
Court also granted the Motion for Intervention of the Department of Foreign
Affairs. Thereafter, the parties were directed to submit their respective
memorandum.
For the most part, petitioner's Motion for Reconsideration deals with the
diplomatic immunity of the ADB, its officials and staff, from legal and judicial
processes in the Philippines, as well as the constitutional and political bases
thereof. It should be made clear that nowhere in the assailed Decision is
diplomatic immunity denied, even remotely. The issue in this case, rather,
boils down to whether or not the statements allegedly made by petitioner
were uttered while in the performance of his official functions, in order for
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this case to fall squarely under the provisions of Section 45 (a) of the
"Agreement Between the Asian Development Bank and the Government of
the Republic of the Philippines Regarding the Headquarters of the Asian
Development Bank," to wit:
Officers and staff of the Bank, including for the purpose of this Article
experts and consultants performing missions for the Bank, shall enjoy the
following privileges and immunities:
(a) Immunity from legal process with respect to acts performed by them
in their official capacity except when the Bank waives the immunity.
After a careful deliberation of the arguments raised in petitioner's and
intervenor's Motions for Reconsideration, we find no cogent reason to disturb
our Decision of January 28, 2000. As we have stated therein, the slander of a
person, by any stretch, cannot be considered as falling within the purview of
the immunity granted to ADB officers and personnel. Petitioner argues that
the Decision had the effect of prejudging the criminal case for oral
defamation against him. We wish to stress that it did not. What we merely
stated therein is that slander, in general, cannot be considered as an act
performed in an official capacity. The issue of whether or not petitioner's
utterances constituted oral defamation is still for the trial court to determine.
WHEREFORE, in view of the foregoing, the Motions for Reconsideration filed
by petitioner and intervenor Department of Foreign Affairs are DENIED with
FINALITY.
SO ORDERED.
Kapunan and Pardo, JJ ., concur.
Davide, Jr., C.J., I also join concurring opinion of Mr. Justice Puno.
Puno, J., Please see concurring opinion.
Concurring Opinions
PUNO, J., concurring:
For resolution is the Motion for Reconsideration filed by petitioner Jeffrey
Liang of this Court's decision dated January 28, 2000 which denied the
petition for review. We there held that: the protocol communication of the
Department of Foreign Affairs to the effect that petitioner Liang is covered by
immunity is only preliminary and has no binding effect in courts; the
immunity provided for under Section 45(a) of the Headquarters Agreement is
subject to the condition that the act be done in an "official capacity"; that
slandering a person cannot be said to have been done in an "official
capacity" and, hence, it is not covered by the immunity agreement; under
the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming
petitioner is such, enjoys immunity from criminal jurisdiction of the receiving
state except in the case of an action relating to any professional or

commercial activity exercised by the diplomatic agent in the receiving state
outside his official functions; the commission of a crime is not part of official
duty; and that a preliminary investigation is not a matter of right in cases
cognizable by the Metropolitan Trial Court.
Petitioner's motion for reconsideration is anchored on the following
arguments:
1. The DFA's determination of immunity is a political question to be
made by the executive branch of the government and is conclusive upon the
courts;
2. The immunity of international organizations is absolute;
3. The immunity extends to all staff of the Asian Development Bank
(ADB);
4. Due process was fully accorded the complainant to rebut the DFA
protocol;
5. The decision of January 28, 2000 erroneously made a finding of fact
on the merits, namely, the slandering of a person which prejudged
petitioner's case before the Metropolitan Trial Court (MTC) Mandaluyong;
and
6. The Vienna Convention on diplomatic relations is not applicable to
this case.
Petitioner contends that a determination of a person's diplomatic immunity
by the Department of Foreign Affairs is a political question. It is solely within
the prerogative of the executive department and is conclusive upon the
courts. In support of his submission, petitioner cites the following cases:
WHO vs. Aquino;1 International Catholic Migration Commission vs. Calleja;2
The Holy See vs. Rosario, Jr.;3 Lasco vs. United Nations;4 and DFA vs.
NLRC.5
It is further contended that the immunity conferred under the ADB Charter
and the Headquarters Agreement is absolute. It is designed to safeguard the
autonomy and independence of international organizations against
interference from any authority external to the organizations. It is necessary
to allow such organizations to discharge their entrusted functions effectively.
The only exception to this immunity is when there is an implied or express
waiver or when the immunity is expressly limited by statute. The exception
allegedly has no application to the case at bar.
Petitioner likewise urges that the international organization's immunity from
local jurisdiction empowers the ADB alone to determine what constitutes
"official acts" and the same cannot be subject to different interpretations by
the member states. It asserts that the Headquarters Agreement provides for
remedies to check abuses against the exercise of the immunity. Thus,
Section 49 states that the "Bank shall waive the immunity accorded to any
person if, in its opinion, such immunity would impede the course of justice
Criminal Law I (COMPILATION)Page |4
and the waiver would not prejudice the purposes for which the immunities
are accorded." Section 51 allows for consultation between the government
and the Bank should the government consider that an abuse has occurred.
The same section provides the mechanism for a dispute settlement
regarding, among others, issues of interpretation or application of the
agreement.
Petitioner's argument that a determination by the Department of Foreign
Affairs that he is entitled to diplomatic immunity is a political question
binding on the courts, is anchored on the ruling enunciated in the case of
WHO, et al. vs. Aquino, et al.,6 viz:
"It is a recognized principle of international law and under our system of
separation of powers that diplomatic immunity is essentially a political
question and courts should refuse to look beyond a determination by the
executive branch of the government, and where the plea of diplomatic
immunity is recognized and affirmed by the executive branch of the
government as in the case at bar, it is then the duty of the courts to accept
the claim of immunity upon appropriate suggestion by the principal law
officer of the government, the Solicitor General in this case, or other officer
acting under his direction. Hence, in adherence to the settled principle that
courts may not so exercise their jurisdiction by seizure and detention of
property, as to embarrass the executive arm of the government in
conducting foreign relations, it is accepted doctrine that in such cases the
judicial department of the government follows the action of the political
branch and will not embarrass the latter by assuming an antagonistic
jurisdiction."
This ruling was reiterated in the subsequent cases of International Catholic
Migration Commission vs. Calleja;7 The Holy See vs. Rosario, Jr.;8 Lasco vs.
UN;9 and DFA vs. NLRC.10
The case of WHO vs. Aquino involved the search and seizure of personal
effects of petitioner Leonce Verstuyft, an official of the WHO. Verstuyft was
certified to be entitled to diplomatic immunity pursuant to the Host
Agreement executed between the Philippines and the WHO.
ICMC vs. Calleja concerned a petition for certification election filed against
ICMC and IRRI. As international organizations, ICMC and IRRI were declared
to possess diplomatic immunity. It was held that they are not subject to local
jurisdictions. It was ruled that the exercise of jurisdiction by the Department
of Labor over the case would defeat the very purpose of immunity, which is
to shield the affairs of international organizations from political pressure or
control by the host country and to ensure the unhampered performance of
their functions.
Holy See v. Rosario, Jr. involved an action for annulment of sale of land
against the Holy See, as represented by the Papal Nuncio. The Court upheld

the petitioner's defense of sovereign immunity. It ruled that where a
diplomatic envoy is granted immunity from the civil and administrative
jurisdiction of the receiving state over any real action relating to private
immovable property situated in the territory of the receiving state, which the
envoy holds on behalf of the sending state for the purposes of the mission,
with all the more reason should immunity be recognized as regards the
sovereign itself, which in that case is the Holy See.
In Lasco vs. United Nations, the United Nations Revolving Fund for Natural
Resources Exploration was sued before the NLRC for illegal dismissal. The
Court again upheld the doctrine of diplomatic immunity invoked by the Fund.
Finally, DFA v. NLRC involved an illegal dismissal case filed against the Asian
Development Bank. Pursuant to its Charter and the Headquarters
Agreement, the diplomatic immunity of the Asian Development Bank was
recognized by the Court.
It bears to stress that all of these cases pertain to the diplomatic immunity
enjoyed by international organizations. Petitioner asserts that he is entitled
to the same diplomatic immunity and he cannot be prosecuted for acts
allegedly done in the exercise of his official functions.
The term "international organizations" —
"is generally used to describe an organization set up by agreement between
two or more states. Under contemporary international law, such
organizations are endowed with some degree of international legal
personality such that they are capable of exercising specific rights, duties
and powers. They are organized mainly as a means for conducting general
international business in which the member states have an interest."11
International public officials have been defined as:
". . . persons who, on the basis of an international treaty constituting a
particular international community, are appointed by this international
community, or by an organ of it, and are under its control to exercise, in a
continuous way, functions in the interest of this particular international
community, and who are subject to a particular personal status."12
"Specialized agencies" are international organizations having functions in
particular fields, such as posts, telecommunications, railways, canals, rivers,
sea transport, civil aviation, meteorology, atomic energy, finance, trade,
education and culture, health and refugees.13
Issues
1. Whether petitioner Liang, as an official of an international
organization, is entitled to diplomatic immunity;
2. Whether an international official is immune from criminal jurisdiction
for all acts, whether private or official;
3. Whether the authority to determine if an act is official or private is
lodged in the courts;
Criminal Law I (COMPILATION)Page |5
4. Whether the certification by the Department of Foreign Affairs that
petitioner is covered by immunity is a political question that is binding and
conclusive on the courts.
Discussion
A perusal of the immunities provisions in various international conventions
and agreements will show that the nature and degree of immunities vary
depending on who the recipient is. Thus:
1. Charter of the United Nations
"Article 105 (1): The Organization shall enjoy in the territory of each of its
Members such privileges and immunities as are necessary for the fulfillment
of its purposes.
Article 105 (2): Representatives of the Members of the United Nations and
officials of the Organization shall similarly enjoy such privileges and
immunities as are necessary for the independent exercise of their functions
in connection with the Organization."
2. Convention on the Privileges and Immunities of the United Nations
"Section 2: The United Nations, its property and assets wherever located and
by whomsoever held, shall enjoy immunity from every form of legal process
except insofar as in any particular case it has expressly waived its immunity.
It is, however, understood that no waiver of immunity shall extend to any
measure of execution.
xxx xxx xxx
Section 11 (a): Representatives of Members to the principal and subsidiary
organs of the United Nations . . shall . . . enjoy . . . immunity from personal
arrest or detention and from seizure of their personal baggage, and, in
respect of words spoken or written and all acts done by them in their
capacity as representatives, immunity from legal process of every kind.
xxx xxx xxx
Section 14: Privileges and immunities are accorded to the representatives of
Members not for the personal benefit of the individuals themselves, but in
order to safeguard the independent exercise of their functions in connection
with the United Nations. Consequently, a Member not only has the right but
is under a duty to waive the immunity of its representative in any case where
in the opinion of the Member the immunity would impede the course of
justice, and it can be waived without prejudice to the purpose for which the
immunity is accorded.
xxx xxx xxx

Section 18 (a): Officials of the United Nations shall be immune from legal
process in respect of words spoken or written and all acts performed by
them in their official capacity.
xxx xxx xxx
Section 19: In addition to the immunities and privileges specified in Section
18, the Secretary-General and all Assistant Secretaries-General shall be
accorded in respect of themselves, their spouses and minor children, the
privileges and immunities, exemptions and facilities accorded to diplomatic
envoys, in accordance with international law.
Section 20: Privileges and immunities are granted to officials in the interest
of the United Nations and not for the personal benefit of the individuals
themselves. The Secretary-General shall have the right and the duty to waive
the immunity of any official in any case where, in his opinion, the immunity
would impede the course of justice and can be waived without prejudice to
the interests of the United Nations.
xxx xxx xxx
Section 22: Experts . . . performing missions for the United Nations . . . shall
be accorded: (a) immunity from personal arrest or detention and from
seizure of their personal baggage; (b) in respect of words spoken or written
and acts done by them in the course of the performance of their mission,
immunity from legal process of every kind."
3. Vienna Convention on Diplomatic Relations
"Article 29: The person of a diplomatic agent shall be inviolable. He shall not
be liable to any form of arrest or detention. The receiving State shall treat
him with due respect and shall take all appropriate steps to prevent any
attack on his person, freedom, or dignity.
xxx xxx xxx
Article 31 (1): A diplomatic agent shall enjoy immunity from the criminal
jurisdiction of the receiving State. He shall also enjoy immunity from its civil
and administrative jurisdiction, except in certain cases.
xxx xxx xxx
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Article 38 (1): Except in so far as additional privileges and immunities may be
granted by the receiving State, a diplomatic agent who is a national of or
permanently a resident in that State shall enjoy only immunity from
jurisdiction, and inviolability, in respect of official acts performed in the
exercise of his functions."
4. Vienna Convention on Consular Relations
"Article 41 (1): Consular officials shall not be liable to arrest or detention
pending trial, except in the case of a grave crime and pursuant to a decision
by the competent judicial authority.
xxx xxx xxx
Article 43 (1): Consular officers and consular employees shall not be
amenable to the jurisdiction of the judicial or administrative authorities of the
receiving State in respect of acts performed in the exercise of consular
functions.
Article 43 (2): The provisions of paragraph 1 of this Article shall not,
however, apply in respect of a civil action either: (a) arising out of a contract
concluded by a consular officer or a consular employee in which he did not
contract expressly or impliedly as an agent of the sending State; or (b) by a
third party for damage arising from an accident in the receiving State caused
by a vehicle, vessel or aircraft."
5. Convention on the Privileges and Immunities of the Specialized
Agencies
"Section 4: The specialized agencies, their property and assets, wherever
located and by whomsoever held, shall enjoy immunity from every form of
legal process except in so far as in any particular case they have expressly
waived their immunity. It is, however, understood that no waiver of
immunity shall extend to any measure of execution.
Section 13 (a): Representatives of members at meetings convened by a
specialized agency shall, while exercising their functions and during their
journeys to and from the place of meeting, enjoy immunity from personal
arrest or detention and from seizure of their personal baggage, and in
respect of words spoken or written and all acts done by them in their official
capacity, immunity from legal process of every kind.

xxx xxx xxx
Section 19 (a): Officials of the specialized agencies shall be immune from
legal process in respect of words spoken or written and all acts performed by
them in their official capacity.
xxx xxx xxx
Section 21: In addition to the immunities and privileges specified in sections
19 and 20, the executive head of each specialized agency, including a any
official acting on his behalf during his absence from duty, shall be accorded
in respect of himself, his spouse and minor children, the privileges and
immunities, exemptions and facilities accorded to diplomatic envoys, in
accordance with international law."
6. Charter of the ADB
"Article 50 (1): The Bank shall enjoy immunity from every form of legal
process, except in cases arising out of or in connection with the exercise of
its powers to borrow money, to guarantee obligations, or to buy and sell or
underwrite the sale of securities, in which cases actions may be brought
against the Bank in a court of competent jurisdiction in the territory of a
country in which the Bank has its principal or a branch office, or has
appointed an agent for the purpose of accepting service or notice of process,
or has issued or guaranteed securities.
xxx xxx xxx
Article 55 (i): All Governors, Directors, alternates, officers and employees of
the Bank, including experts performing missions for the Bank shall be
immune from legal process with respect to acts performed by them in their
official capacity, except when the Bank waives the immunity."
7. ADB Headquarters Agreement
"Section 5: The Bank shall enjoy immunity from every form of legal process,
except in cases arising out of or in connection with the exercise of its powers
to borrow money, to guarantee obligations, or to buy and sell or underwrite
the sale of securities, in which cases actions may be brought against the
Bank in a court of competent jurisdiction in the Republic of the Philippines.
xxx xxx xxx
Criminal Law I (COMPILATION)Page |7
Section 44: Governors, other representatives of Members, Directors, the
President, Vice-President and executive officers as may be agreed upon
between the Government and the Bank shall enjoy, during their stay in the
Republic of the Philippines in connection with their official duties with the
Bank: (a) immunity from personal arrest or detention and from seizure of
their personal baggage; (b) immunity from legal process of every kind in
respect of words spoken or written and all acts done by them in their official
capacity; and (c) in respect of other matters not covered in (a) and (b)
above, such other immunities, exemptions, privileges and facilities as are
enjoyed by members of diplomatic missions of comparable rank, subject to
corresponding conditions and obligations.
Section 45 (a): Officers and staff of the Bank, including for the purposes of
this Article experts and consultants performing missions for the Bank, shall
enjoy . . . immunity from legal process with respect to acts performed by
them in their official capacity, except when the Bank waives the immunity."
II
There are three major differences between diplomatic and international
immunities. Firstly, one of the recognized limitations of diplomatic immunity
is that members of the diplomatic staff of a mission may be appointed from
among the nationals of the receiving State only with the express consent of
that State; apart from inviolability and immunity from jurisdiction in respect
of official acts performed in the exercise of their functions, nationals enjoy
only such privileges and immunities as may be granted by the receiving
State. International immunities may be specially important in relation to the
State of which the official is a national. Secondly, the immunity of a
diplomatic agent from the jurisdiction of the receiving State does not exempt
him from the jurisdiction of the sending State; in the case of international
immunities there is no sending State and an equivalent for the jurisdiction of
the Sending State therefore has to be found either in waiver of immunity or
in some international disciplinary or judicial procedure. Thirdly, the effective
sanctions which secure respect for diplomatic immunity are the principle of
reciprocity and the danger of retaliation by the aggrieved State; international
immunities enjoy no similar protection.14
The generally accepted principles which are now regarded as the foundation
of international immunities are contained in the ILO Memorandum, which
reduced them in three basic propositions, namely: (1) that international
institutions should have a status which protects them against control or
interference by any one government in the performance of functions for the

effective discharge of which they are responsible to democratically
constituted international bodies in which all the nations concerned are
represented; (2) that no country should derive any financial advantage by
levying fiscal charges on common international funds; and (3) that the
international organization should, as a collectivity of States Members, be
accorded the facilities for the conduct of its official business customarily
extended to each other by its individual member States. The thinking
underlying these propositions is essentially institutional in character. It is not
concerned with the status, dignity or privileges of individuals, but with the
elements of functional independence necessary to free international
institutions from national control and to enable them to discharge their
responsibilities impartially on behalf of all their members.15
III
Positive international law has devised three methods of granting privileges
and immunities to the personnel of international organizations. The first is by
simple conventional stipulation, as was the case in the Hague Conventions of
1899 and 1907. The second is by internal legislation whereby the
government of a state, upon whose territory the international organization is
to carry out its functions, recognizes the international character of the
organization and grants, by unilateral measures, certain privileges and
immunities to better assure the successful functioning of the organization
and its personnel. In this situation, treaty obligation for the state in question
to grant concessions is lacking. Such was the case with the Central
Commission of the Rhine at Strasbourg and the International Institute of
Agriculture at Rome. The third is a combination of the first two. In this third
method, one finds a conventional obligation to recognize a certain status of
an international organization and its personnel, but the status is described in
broad and general terms. The specific definition and application of those
general terms are determined by an accord between the organization itself
and the state wherein it is located. This is the case with the League of
Nations, the Permanent Court of Justice, and the United Nations.16
The Asian Development Bank and its Personnel fall under this third category.
There is a connection between diplomatic privileges and immunities and
those extended to international officials. The connection consists in the
granting, by contractual provisions, of the relatively well-established body of
diplomatic privileges and immunities to international functionaries. This
connection is purely historical. Both types of officials find the basis of their
special status in the necessity of retaining functional independence and
Criminal Law I (COMPILATION)Page |8
freedom from interference by the state of residence. However, the legal
relationship between an ambassador and the state to which he is accredited
is entirely different from the relationship between the international official
and those states upon whose territory he might carry out his functions.17
The privileges and immunities of diplomats and those of international officials
rest upon different legal foundations. Whereas those immunities awarded to
diplomatic agents are a right of the sending state based on customary
international law, those granted to international officials are based on treaty
or conventional law. Customary international law places no obligation on a
state to recognize a special status of an international official or to grant him
jurisdictional immunities. Such an obligation can only result from specific
treaty provisions.18
The special status of the diplomatic envoy is regulated by the principle of
reciprocity by which a state is free to treat the envoy of another state as its
envoys are treated by that state. The juridical basis of the diplomat's position
is firmly established in customary international law. The diplomatic envoy is
appointed by the sending State but it has to make certain that the
agreement of the receiving State has been given for the person it proposes
to accredit as head of the mission to that State.19
The staff personnel of an international organization — the international
officials — assume a different position as regards their special status. They
are appointed or elected to their position by the organization itself, or by a
competent organ of it; they are responsible to the organization and their
official acts are imputed to it. The juridical basis of their special position is
found in conventional law,20 since there is no established basis of usage or
custom in the case of the international official. Moreover, the relationship
between an international organization and a member-state does not admit of
the principle of reciprocity,21 for it is contradictory to the basic principle of
equality of states. An international organization carries out functions in the
interest of every member state equally. The international official does not
carry out his functions in the interest of any state, but in serving the
organization he serves, indirectly, each state equally. He cannot be, legally,
the object of the operation of the principle of reciprocity between states
under such circumstances. It is contrary to the principle of equality of states
for one state member of an international organization to assert a capacity to
extract special privileges for its nationals from other member states on the
basis of a status awarded by it to an international organization. It is upon
this principle of sovereign equality that international organizations are built.

It follows from this same legal circumstance that a state called upon to admit
an official of an international organization does not have a capacity to
declare him persona non grata.
The functions of the diplomat and those of the international official are quite
different. Those of the diplomat are functions in the national interest. The
task of the ambassador is to represent his state, and its specific interest, at
the capital of another state. The functions of the international official are
carried out in the international interest. He does not represent a state or the
interest of any specific state. He does not usually "represent" the
organization in the true sense of that term. His functions normally are
administrative, although they may be judicial or executive, but they are
rarely political or functions of representation, such as those of the diplomat.
There is a difference of degree as well as of kind. The interruption of the
activities of a diplomatic agent is likely to produce serious harm to the
purposes for which his immunities were granted. But the interruption of the
activities of the international official does not, usually, cause serious
dislocation of the functions of an international secretariat.22
On the other hand, they are similar in the sense that acts performed in an
official capacity by either a diplomatic envoy or an international official are
not attributable to him as an individual but are imputed to the entity he
represents, the state in the case of the diplomat, and the organization in the
case of the international official.23
IV
Looking back over 150 years of privileges and immunities granted to the
personnel of international organizations, it is clear that they were accorded a
wide scope of protection in the exercise of their functions — The Rhine
Treaty of 1804 between the German Empire and France which provided "all
the rights of neutrality" to persons employed in regulating navigation in the
international interest; The Treaty of Berlin of 1878 which granted the
European Commission of the Danube "complete independence of territorial
authorities" in the exercise of its functions; The Covenant of the League
which granted "diplomatic immunities and privileges." Today, the age of the
United Nations finds the scope of protection narrowed. The current tendency
is to reduce privileges and immunities of personnel of international
organizations to a minimum. The tendency cannot be considered as a
lowering of the standard but rather as a recognition that the problem on the
privileges and immunities of international officials is new. The solution to the
Criminal Law I (COMPILATION)Page |9
problem presented by the extension of diplomatic prerogatives to
international functionaries lies in the general reduction of the special position
of both types of agents in that the special status of each agent is granted in
the interest of function. The wide grant of diplomatic prerogatives was
curtailed because of practical necessity and because the proper functioning
of the organization did not require such extensive immunity for its officials.
While the current direction of the law seems to be to narrow the
prerogatives of the personnel of international organizations, the reverse is
true with respect to the prerogatives of the organizations themselves,
considered as legal entities. Historically, states have been more generous in
granting privileges and immunities to organizations than they have to the
personnel of these organizations.24
Thus, Section 2 of the General Convention on the Privileges and Immunities
of the United Nations states that the UN shall enjoy immunity from every
form of legal process except insofar as in any particular case it has expressly
waived its immunity. Section 4 of the Convention on the Privileges and
Immunities of the Specialized Agencies likewise provides that the specialized
agencies shall enjoy immunity from every form of legal process subject to
the same exception. Finally, Article 50(1) of the ADB Charter and Section 5
of the Headquarters Agreement similarly provide that the bank shall enjoy
immunity from every form of legal process, except in cases arising out of or
in connection with the exercise of its powers to borrow money, to guarantee
obligations, or to buy and sell or underwrite the sale of securities.
The phrase "immunity from every form of legal process" as used in the UN
General Convention has been interpreted to mean absolute immunity from a
state's jurisdiction to adjudicate or enforce its law by legal process, and it is
said that states have not sought to restrict that immunity of the United
Nations by interpretation or amendment. Similar provisions are contained in
the Special Agencies Convention as well as in the ADB Charter and
Headquarters Agreement. These organizations were accorded privileges and
immunities in their charters by language similar to that applicable to the
United Nations. It is clear therefore that these organizations were intended
to have similar privileges and immunities.25 From this, it can be easily
deduced that international organizations enjoy absolute immunity similar to
the diplomatic prerogatives granted to diplomatic envoys.
Even in the United States this theory seems to be the prevailing rule. The
Foreign Sovereign Immunities Act was passed adopting the "restrictive
theory" limiting the immunity of states under international law essentially to
activities of a kind not carried on by private persons. Then the International

Organizations Immunities Act came into effect which gives to designated
international organizations the same immunity from suit and every form of
judicial process as is enjoyed by foreign governments. This gives the
impression that the Foreign Sovereign Immunities Act has the effect of
applying the restrictive theory also to international organizations generally.
However, aside from the fact that there was no indication in its legislative
history that Congress contemplated that result, and considering that the
Convention on Privileges and Immunities of the United Nations exempts the
United Nations "from every form of legal process," conflict with the United
States obligations under the Convention was sought to be avoided by
interpreting the Foreign Sovereign Immunities Act, and the restrictive theory,
as not applying to suits against the United Nations.26
On the other hand, international officials are governed by a different rule.
Section 18(a) of the General Convention on Privileges and Immunities of the
United Nations states that officials of the United Nations shall be immune
from legal process in respect of words spoken or written and all acts
performed by them in their official capacity. The Convention on Specialized
Agencies carries exactly the same provision. The Charter of the ADB provides
under Article 55(i) that officers and employees of the bank shall be immune
from legal process with respect to acts performed by them in their official
capacity except when the Bank waives immunity. Section 45 (a) of the ADB
Headquarters Agreement accords the same immunity to the officers and staff
of the bank. There can be no dispute that international officials are entitled
to immunity only with respect to acts performed in their official capacity,
unlike international organizations which enjoy absolute immunity.
Clearly, the most important immunity to an international official, in the
discharge of his international functions, is immunity from local jurisdiction.
There is no argument in doctrine or practice with the principle that an
international official is independent of the jurisdiction of the local authorities
for his official acts. Those acts are not his, but are imputed to the
organization, and without waiver the local courts cannot hold him liable for
them. In strict law, it would seem that even the organization itself could
have no right to waive an official's immunity for his official acts. This permits
local authorities to assume jurisdiction over an individual for an act which is
not, in the wider sense of the term, his act at all. It is the organization itself,
as a juristic person, which should waive its own immunity and appear in
court, not the individual, except insofar as he appears in the name of the
organization. Provisions for immunity from jurisdiction for official acts
appear, aside from the aforementioned treatises, in the constitution of most
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 10
modern international organizations. The acceptance of the principle is
sufficiently widespread to be regarded as declaratory of international law.27
V
What then is the status of the international official with respect to his private
acts?
Section 18 (a) of the General Convention has been interpreted to mean that
officials of the specified categories are denied immunity from local
jurisdiction for acts of their private life and empowers local courts to assume
jurisdiction in such cases without the necessity of waiver.28 It has earlier
been mentioned that historically, international officials were granted
diplomatic privileges and immunities and were thus considered immune for
both private and official acts. In practice, this wide grant of diplomatic
prerogatives was curtailed because of practical necessity and because the
proper functioning of the organization did not require such extensive
immunity for its officials. Thus, the current status of the law does not
maintain that states grant jurisdictional immunity to international officials for
acts of their private lives.29 This much is explicit from the Charter and
Headquarters Agreement of the ADB which contain substantially similar
provisions to that of the General Convention.
VI
Who is competent to determine whether a given act is private or official?
This is an entirely different question. In connection with this question, the
current tendency to narrow the scope of privileges and immunities of
international officials and representatives is most apparent. Prior to the
regime of the United Nations, the determination of this question rested with
the organization and its decision was final. By the new formula, the state
itself tends to assume this competence. If the organization is dissatisfied
with the decision, under the provisions of the General Convention of the
United States, or the Special Convention for Specialized Agencies, the Swiss
Arrangement, and other current dominant instruments, it may appeal to an
international tribunal by procedures outlined in those instruments. Thus, the
state assumes this competence in the first instance. It means that, if a local
court assumes jurisdiction over an act without the necessity of waiver from
the organization, the determination of the nature of the act is made at the
national level.30

It appears that the inclination is to place the competence to determine the
nature of an act as private or official in the courts of the state concerned.
That the prevalent notion seems to be to leave to the local courts
determination of whether or not a given act is official or private does not
necessarily mean that such determination is final. If the United Nations
questions the decision of the Court, it may invoke proceedings for settlement
of disputes between the organization and the member states as provided in
Section 30 of the General Convention. Thus, the decision as to whether a
given act is official or private is made by the national courts in the first
instance, but it may be subjected to review in the international level if
questioned by the United Nations.31
A similar view is taken by Kunz, who writes that the "jurisdiction of local
courts without waiver for acts of private life empowers the local courts to
determine whether a certain act is an official act or an act of private life," on
the rationale that since the determination of such question, if left in the
hands of the organization, would consist in the execution, or non-execution,
of waiver, and since waiver is not mentioned in connection with the provision
granting immunities to international officials, then the decision must rest with
local courts.32
Under the Third Restatement of the Law, it is suggested that since an
international official does not enjoy personal inviolability from arrest or
detention and has immunity only with respect to official acts, he is subject to
judicial or administrative process and must claim his immunity in the
proceedings by showing that the act in question was an official act. Whether
an act was performed in the individual's official capacity is a question for the
court in which a proceeding is brought, but if the international organization
disputes the court's finding, the dispute between the organization and the
state of the forum is to be resolved by negotiation, by an agreed mode of
settlement or by advisory opinion of the International Court of Justice.33
Recognizing the difficulty that by reason of the right of a national court to
assume jurisdiction over private acts without a waiver of immunity, the
determination of the official or private character of a particular act may pass
from international to national control, Jenks proposes three ways of avoiding
difficulty in the matter. The first would be for a municipal court before which
a question of the official or private character of a particular act arose to
accept as conclusive in the matter any claim by the international organization
that the act was official in character, such a claim being regarded as
equivalent to a governmental claim that a particular act is an act of State.
Such a claim would be in effect a claim by the organization that the
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 11
proceedings against the official were a violation of the jurisdictional immunity
of the organization itself which is unqualified and therefore not subject to
delimitation in the discretion of the municipal court. The second would be for
a court to accept as conclusive in the matter a statement by the executive
government of the country where the matter arises certifying the official
character of the act. The third would be to have recourse to the procedure of
international arbitration. Jenks opines that it is possible that none of these
three solutions would be applicable in all cases; the first might be readily
acceptable only in the clearest cases and the second is available only if the
executive government of the country where the matter arises concurs in the
view of the international organization concerning the official character of the
act. However, he surmises that taken in combination, these various
possibilities may afford the elements of a solution to the problem.34
One final point. The international official's immunity for official acts may be
likened to a consular official's immunity from arrest, detention, and criminal
or civil process which is not absolute but applies only to acts or omissions in
the performance of his official functions, in the absence of special
agreement. Since a consular officer is not immune from all legal process, he
must respond to any process and plead and prove immunity on the ground
that the act or omission underlying the process was in the performance of
his official functions. The issue has not been authoritatively determined, but
apparently the burden is on the consular officer to prove his status as well as
his exemption in the circumstances. In the United States, the US Department
of State generally has left it to the courts to determine whether a particular
act was within a consular officer's official duties.35
Submissions
On the bases of the foregoing disquisitions, I submit the following
conclusions:
First, petitioner Liang, a bank official of ADB, is not entitled to diplomatic
immunity and hence his immunity is not absolute.
Under the Vienna Convention on Diplomatic Relations, a diplomatic envoy is
immune from criminal jurisdiction of the receiving State for all acts, whether
private or official, and hence he cannot be arrested, prosecuted and
punished for any offense he may commit, unless his diplomatic immunity is
waived.36 On the other hand, officials of international organizations enjoy
"functional" immunities, that is, only those necessary for the exercise of the
functions of the organization and the fulfillment of its purposes.37 This is the

reason why the ADB Charter and Headquarters Agreement explicitly grant
immunity from legal process to bank officers and employees only with
respect to acts performed by them in their official capacity, except when the
Bank waives immunity. In other words, officials and employees of the ADB
are subject to the jurisdiction of the local courts for their private acts,
notwithstanding the absence of a waiver of immunity.
Petitioner cannot also seek relief under the mantle of "immunity from every
form of legal process" accorded to ADB as an international organization. The
immunity of ADB is absolute whereas the immunity of its officials and
employees is restricted only to official acts. This is in consonance with the
current trend in international law which seeks to narrow the scope of
protection and reduce the privileges and immunities granted to personnel of
international organizations, while at the same time aims to increase the
prerogatives of international organizations.
Second, considering that bank officials and employees are covered by
immunity only for their official acts, the necessary inference is that the
authority of the Department of Affairs, or even of the ADB for that matter, to
certify that they are entitled to immunity is limited only to acts done in their
official capacity. Stated otherwise, it is not within the power of the DFA, as
the agency in charge of the executive department's foreign relations, nor the
ADB, as the international organization vested with the right to waive
immunity, to invoke immunity for private acts of bank officials and
employees, since no such prerogative exists in the first place. If the
immunity does not exist, there is nothing to certify.
As an aside, ADB cannot even claim to have the right to waive immunity for
private acts of its officials and employees. The Charter and the Headquarters
Agreement are clear that the immunity can be waived only with respect to
official acts because this is only the extent to which the privilege has been
granted. One cannot waive the right to a privilege which has never been
granted or acquired.
Third, I choose to adopt the view that it is the local courts which have
jurisdiction to determine whether or not a given act is official or private.
While there is a dearth of cases on the matter under Philippine
jurisprudence, the issue is not entirely novel.
The case of M.H. Wylie, et al. vs. Rarang, et al.38 concerns the extent of
immunity from suit of the officials of a United States Naval Base inside the
Philippine territory. Although a motion to dismiss was filed by the defendants
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 12
therein invoking their immunity from suit pursuant to the RP-US Military
Bases Agreement, the trial court denied the same and, after trial, rendered a
decision declaring that the defendants are not entitled to immunity because
the latter acted beyond the scope of their official duties. The Court likewise
applied the ruling enunciated in the case of Chavez vs. Sandiganbayan39 to
the effect that a mere invocation of the immunity clause does not ipso facto
result in the charges being automatically dropped. While it is true that the
Chavez case involved a public official, the Court did not find any substantial
reason why the same rule cannot be made to apply to a US official assigned
at the US Naval Station located in the Philippines. In this case, it was the
local courts which ascertained whether the acts complained of were done in
an official or personal capacity.
In the case of The Holy See vs. Rosario, Jr.,40 a complaint for annulment of
contract of sale, reconveyance, specific performance and damages was filed
against petitioner. Petitioner moved to dismiss on the ground of, among
others, lack of jurisdiction based on sovereign immunity from suit, which was
denied by the trial court. A motion for reconsideration, and subsequently, a
"Motion for a Hearing for the Sole Purpose of Establishing Factual Allegation
for Claim of Immunity as a Jurisdictional Defense" were filed by petitioner.
The trial court deferred resolution of said motions until after trial on the
merits. On certiorari, the Court there ruled on the issue of petitioner's non-
suability on the basis of the allegations made in the pleadings filed by the
parties. This is an implicit recognition of the court's jurisdiction to ascertain
the suability or non-suability of the sovereign by assessing the facts of the
case. The Court hastened to add that when a state or international agency
wishes to plead sovereign or diplomatic immunity in a foreign court, in some
cases, the defense of sovereign immunity was submitted directly to the local
courts by the respondents through their private counsels, or where the
foreign states bypass the Foreign Office, the courts can inquire into the facts
and make their own determination as to the nature of the acts and
transactions involved.
Finally, it appears from the records of this case that petitioner is a senior
economist at ADB and as such he makes country project profiles which will
help the bank in deciding whether to lend money or support a particular
project to a particular country.41 Petitioner stands charged of grave slander
for allegedly uttering defamatory remarks against his secretary, the private
complainant herein. Considering that the immunity accorded to petitioner is
limited only to acts performed in his official capacity, it becomes necessary to
make a factual determination of whether or not the defamatory utterances

were made pursuant and in relation to his official functions as a senior
economist.
I vote to deny the motion for reconsideration.
Davide, Jr., C.J., concurs.
[No. 5272. March 19, 1910.]
THE UNITED STATES, plaintiff and appellee, vs. AH CHONG,
defendant and appellant.
JUSTIFIABLE HOMICIDE; SELF-DEFENSE; MlSTAKE OF FACTS.—Defendant
was a cook and the deceased was a house boy, and both were employed in
the same place and usually slept in the same room. One night, after the
defendant had gone to bed, he was awakened by some one trying to open
the door, and called out twice, "Who is there?" He received no answer, and
fearing that the intruder was a robber, leaped from the bed and again called
out: "If you enter the room I will kill you." At that moment he was struck by
a chair which had been placed against the door. Believing that he was being
attacked, he seized a kitchen knife and struck and fatally wounded the
intruder, who turned out to be his roommate. Thereupon he called to his
employers and rushed back into the room to secure bandages to bind up the
wound. Defendant was charged with murder. While there can be no doubt of
defendant's exemption from liability if the intruder had really been a robber,
the question presented is whether, in this jurisdiction, a person can be held
criminally responsible when, by reason of a mistake of f acts, he does an act
for which he would be exempt if the facts were as he supposed them to be,
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 13
but would constitute murder if he had known the true state of facts at the
time.
     Held, That, under such circumstances, there is no criminal liability,
provided that the ignorance or mistake of fact was not due to negligence or
bad faith. In other words, if such ignorance or mistake of facts is sufficient to
negative a particular intent which, under the law, is a necessary ingredient of
the offense charged it destroys the presumption of intent and works an
acquittal; except in those cases where the circumstances demand a
conviction under the penal provisions governing negligence, and in cases
where, under the provisions of article 1 of the Penal Code, a person
voluntarily committing an act incurs criminal liability even though the act be
different from that which he intended to commit.
APPEAL from a judgment of the Court of First Instance of Rizal. Yusay, J.
The facts are stated in the opinion of the court.
Gibb & Gale, for appellant.
Attorney-General Villamor, for appellee.
CARSON, J.:
The evidence as to many of the essential and vital facts in this case is limited
to the testimony of the accused himself, because from the very nature of
these facts and from the circumstances surrounding the incident upon which
these proceedings rest, no other evidence as to these facts was available
either to the prosecution or to the defense. We think, however, that, giving
the accused the benefit of the doubt as to the weight of the evidence
touching those details of the incident as to which there can be said to be any
doubt, the following statement of the material facts disclose by the record
may be taken to be substantially correct:
The defendant, Ah Chong, was employed as a cook at "Officers' quarters,
No. 27," Fort Mc Kinley, Rizal Province, and at the same place Pascual
Gualberto, deceased, was employed as a house boy or muchacho. "Officers'
quarters No. 27" as a detached house situates some 40 meters from the
nearest building, and in August, 19087, was occupied solely as an officers'
mess or club. No one slept in the house except the two servants, who jointly
occupied a small room toward the rear of the building, the door of which

opened upon a narrow porch running along the side of the building, by which
communication was had with the other part of the house. This porch was
covered by a heavy growth of vines for its entire length and height. The door
of the room was not furnished with a permanent bolt or lock, and occupants,
as a measure of security, had attached a small hook or catch on the inside of
the door, and were in the habit of reinforcing this somewhat insecure means
of fastening the door by placing against it a chair. In the room there was but
one small window, which, like the door, opened on the porch. Aside from the
door and window, there were no other openings of any kind in the room.
On the night of August 14, 1908, at about 10 o'clock, the defendant, who
had received for the night, was suddenly awakened by some trying to force
open the door of the room. He sat up in bed and called out twice, "Who is
there?" He heard no answer and was convinced by the noise at the door that
it was being pushed open by someone bent upon forcing his way into the
room. Due to the heavy growth of vines along the front of the porch, the
room was very dark, and the defendant, fearing that the intruder was a
robber or a thief, leaped to his feet and called out. "If you enter the room, I
will kill you." At that moment he was struck just above the knee by the edge
of the chair which had been placed against the door. In the darkness and
confusion the defendant thought that the blow had been inflicted by the
person who had forced the door open, whom he supposed to be a burglar,
though in the light of after events, it is probable that the chair was merely
thrown back into the room by the sudden opening of the door against which
it rested. Seizing a common kitchen knife which he kept under his pillow, the
defendant struck out wildly at the intruder who, it afterwards turned out,
was his roommate, Pascual. Pascual ran out upon the porch and fell down on
the steps in a desperately wounded condition, followed by the defendant,
who immediately recognized him in the moonlight. Seeing that Pascual was
wounded, he called to his employers who slept in the next house, No. 28,
and ran back to his room to secure bandages to bind up Pascual's wounds.
There had been several robberies in Fort McKinley not long prior to the date
of the incident just described, one of which took place in a house in which
the defendant was employed as cook; and as defendant alleges, it was
because of these repeated robberies he kept a knife under his pillow for his
personal protection.
The deceased and the accused, who roomed together and who appear to
have on friendly and amicable terms prior to the fatal incident, had an
understanding that when either returned at night, he should knock at the
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 14
door and acquiant his companion with his identity. Pascual had left the house
early in the evening and gone for a walk with his friends, Celestino
Quiambao and Mariano Ibañez, servants employed at officers' quarters No.
28, the nearest house to the mess hall. The three returned from their walk at
about 10 o'clock, and Celestino and Mariano stopped at their room at No. 28,
Pascual going on to his room at No. 27. A few moments after the party
separated, Celestino and Mariano heard cries for assistance and upon
returning to No. 27 found Pascual sitting on the back steps fatally wounded
in the stomach, whereupon one of them ran back to No. 28 and called
Liuetenants Jacobs and Healy, who immediately went to the aid of the
wounded man.
The defendant then and there admitted that he had stabbed his roommate,
but said that he did it under the impression that Pascual was "a ladron"
because he forced open the door of their sleeping room, despite defendant's
warnings.
No reasonable explanation of the remarkable conduct on the part of Pascuals
suggests itself, unless it be that the boy in a spirit of mischief was playing a
trick on his Chinese roommate, and sought to frightened him by forcing his
way into the room, refusing to give his name or say who he was, in order to
make Ah Chong believe that he was being attacked by a robber.
Defendant was placed under arrest forthwith, and Pascual was conveyed to
the military hospital, where he died from the effects of the wound on the
following day.
The defendant was charged with the crime of assassination, tried, and found
guilty by the trial court of simple homicide, with extenuating circumstances,
and sentenced to six years and one day presidio mayor, the minimum
penalty prescribed by law.
At the trial in the court below the defendant admitted that he killed his
roommate, Pascual Gualberto, but insisted that he struck the fatal blow
without any intent to do a wrongful act, in the exercise of his lawful right of
self-defense.
Article 8 of the Penal Code provides that —
The following are not delinquent and are therefore exempt from
criminal liability:

xxx             xxx             xxx
4 He who acts in defense of his person or rights, provided there are
the following attendant circumstances:
(1) Illegal aggression.
(2) Reasonable necessity of the means employed to prevent or repel
it.
(3) Lack of sufficient provocation on the part of the person
defending himself.
Under these provisions we think that there can be no doubt that defendant
would be entitle to complete exception from criminal liability for the death of
the victim of his fatal blow, if the intruder who forced open the door of his
room had been in fact a dangerous thief or "ladron," as the defendant
believed him to be. No one, under such circumstances, would doubt the right
of the defendant to resist and repel such an intrusion, and the thief having
forced open the door notwithstanding defendant's thrice-repeated warning to
desist, and his threat that he would kill the intruder if he persisted in his
attempt, it will not be questioned that in the darkness of the night, in a small
room, with no means of escape, with the thief advancing upon him despite
his warnings defendant would have been wholly justified in using any
available weapon to defend himself from such an assault, and in striking
promptly, without waiting for the thief to discover his whereabouts and
deliver the first blow.
But the evidence clearly discloses that the intruder was not a thief or a
"ladron." That neither the defendant nor his property nor any of the property
under his charge was in real danger at the time when he struck the fatal
blow. That there was no such "unlawful aggression" on the part of a thief or
"ladron" as defendant believed he was repelling and resisting, and that there
was no real "necessity" for the use of the knife to defend his person or his
property or the property under his charge.
The question then squarely presents it self, whether in this jurisdiction one
can be held criminally responsible who, by reason of a mistake as to the
facts, does an act for which he would be exempt from criminal liability if the
facts were as he supposed them to be, but which would constitute the crime
of homicide or assassination if the actor had known the true state of the
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 15
facts at the time when he committed the act. To this question we think there
can be but one answer, and we hold that under such circumstances there is
no criminal liability, provided always that the alleged ignorance or mistake or
fact was not due to negligence or bad faith.
In broader terms, ignorance or mistake of fact, if such ignorance or mistake
of fact is sufficient to negative a particular intent which under the law is a
necessary ingredient of the offense charged (e.g., in larcerny, animus
furendi; in murder, malice; in crimes intent) "cancels the presumption of
intent," and works an acquittal; except in those cases where the
circumstances demand a conviction under the penal provisions touching
criminal negligence; and in cases where, under the provisions of article 1 of
the Penal Code one voluntarily committing a crime or misdeamor incurs
criminal liability for any wrongful act committed by him, even though it be
different from that which he intended to commit. (Wharton's Criminal Law,
sec. 87 and cases cited; McClain's Crim. Law, sec. 133 and cases cited;
Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596;
Yates vs.People, 32 N.Y., 509; Isham vs. State, 38 Ala., 213;
Commonwealth vs. Rogers, 7 Met., 500.)
The general proposition thus stated hardly admits of discussion, and the only
question worthy of consideration is whether malice or criminal intent is an
essential element or ingredient of the crimes of homicide and assassination
as defined and penalized in the Penal Code. It has been said that since the
definitions there given of these as well as most other crimes and offense
therein defined, do not specifically and expressly declare that the acts
constituting the crime or offense must be committed with malice or with
criminal intent in order that the actor may be held criminally liable, the
commission of the acts set out in the various definitions subjects the actor to
the penalties described therein, unless it appears that he is exempted from
liability under one or other of the express provisions of article 8 of the code,
which treats of exemption. But while it is true that contrary to the general
rule of legislative enactment in the United States, the definitions of crimes
and offenses as set out in the Penal Code rarely contain provisions expressly
declaring that malice or criminal intent is an essential ingredient of the crime,
nevertheless, the general provisions of article 1 of the code clearly indicate
that malice, or criminal intent in some form, is an essential requisite of all
crimes and offense therein defined, in the absence of express provisions
modifying the general rule, such as are those touching liability resulting from
acts negligently or imprudently committed, and acts done by one voluntarily
committing a crime or misdemeanor, where the act committed is different
from that which he intended to commit. And it is to be observed that even

these exceptions are more apparent than real, for "There is little distinction,
except in degree, between a will to do a wrongful thing and indifference
whether it is done or not. Therefore carelessness is criminal, and within limits
supplies the place of the affirmative criminal intent" (Bishop's New Criminal
Law, vol. 1, s. 313); and, again, "There is so little difference between a
disposition to do a great harm and a disposition to do harm that one of them
may very well be looked upon as the measure of the other. Since, therefore,
the guilt of a crime consists in the disposition to do harm, which the criminal
shows by committing it, and since this disposition is greater or less in
proportion to the harm which is done by the crime, the consequence is that
the guilt of the crime follows the same proportion; it is greater or less
according as the crime in its own nature does greater or less harm" (Ruth.
Ints. C. 18, p. 11); or, as it has been otherwise stated, the thing done,
having proceeded from a corrupt mid, is to be viewed the same whether the
corruption was of one particular form or another.
Article 1 of the Penal Code is as follows:
Crimes or misdemeanors are voluntary acts and ommissions
punished by law.
Acts and omissions punished by law are always presumed to be
voluntarily unless the contrary shall appear.
An person voluntarily committing a crime or misdemeanor shall incur
criminal liability, even though the wrongful act committed be
different from that which he had intended to commit.
The celebrated Spanish jurist Pacheco, discussing the meaning of the word
"voluntary" as used in this article, say that a voluntary act is a  free,
intelligent, and intentional  act, and roundly asserts that without intention
(intention to do wrong or criminal intention) there can be no crime; and that
the word "voluntary" implies and includes the words " con malicia," which
were expressly set out in the definition of the word "crime" in the code of
1822, but omitted from the code of 1870, because, as Pacheco insists, their
use in the former code was redundant, being implied and included in the
word "voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)
Viada, while insisting that the absence of intention to commit the crime can
only be said to exempt from criminal responsibility when the act which was
actually intended to be done was in itself a lawful one, and in the absence of
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 16
negligence or imprudence, nevertheless admits and recognizes in his
discussion of the provisions of this article of the code that in general without
intention there can be no crime. (Viada, vol. 1, p. 16.) And, as we have
shown above, the exceptions insisted upon by Viada are more apparent than
real.
Silvela, in discussing the doctrine herein laid down, says:
In fact, it is sufficient to remember the first article, which declared
that where there is no intention there is no crime . . . in order to
affirm, without fear of mistake, that under our code there can be no
crime if there is no act, an act which must fall within the sphere of
ethics if there is no moral injury. (Vol. 2, the Criminal Law, folio
169.)
And to the same effect are various decisions of the supreme court of Spain,
as, for example in its sentence of May 31, 1882, in which it made use of the
following language:
It is necessary that this act, in order to constitute a crime, involve all
the malice which is supposed from the operation of the will and an
intent to cause the injury which may be the object of the crime.
And again in its sentence of March 16, 1892, wherein it held that
"considering that, whatever may be the civil effects of the inscription of his
three sons, made by the appellant in the civil registry and in the parochial
church, there can be no crime because of the lack of the necessary element
or criminal intention, which characterizes every action or ommission
punished by law; nor is he guilty of criminal negligence."
And to the same effect in its sentence of December 30, 1896, it made use of
the following language:
. . . Considering that the moral element of the crime, that is, intent
or malice or their absence in the commission of an act defined and
punished by law as criminal, is not a necessary question of fact
submitted to the exclusive judgment and decision of the trial court.
That the author of the Penal Code deemed criminal intent or malice to be an
essential element of the various crimes and misdemeanors therein defined

becomes clear also from an examination of the provisions of article 568,
which are as follows:
He who shall execute through reckless negligence an act that, if
done with malice, would constitute a grave crime, shall be punished
with the penalty of arresto mayor  in its maximum degree, to prision
correccional  in its minimum degrees if it shall constitute a less grave
crime.
He who in violation of the regulations shall commit a crime through
simple imprudence or negligence shall incur the penalty of arresto
mayor  in its medium and maximum degrees.
In the application of these penalties the courts shall proceed
according to their discretion, without being subject to the rules
prescribed in article 81.
The provisions of this article shall not be applicable if the penalty
prescribed for the crime is equal to or less than those contained in
the first paragraph thereof, in which case the courts shall apply the
next one thereto in the degree which they may consider proper.
The word "malice" in this article is manifestly substantially equivalent to the
words "criminal intent," and the direct inference from its provisions is that
the commission of the acts contemplated therein, in the absence of malice
(criminal intent), negligence, and imprudence, does not impose any criminal
liability on the actor.
The word "voluntary" as used in article 1 of the Penal Code would seem to
approximate in meaning the word "willful" as used in English and American
statute to designate a form of criminal intent. It has been said that while the
word "willful" sometimes means little more than intentionally or designedly,
yet it is more frequently understood to extent a little further and
approximate the idea of the milder kind of legal malice; that is, it signifies an
evil intent without justifiable excuse. In one case it was said to mean, as
employed in a statute in contemplation, "wantonly" or "causelessly;" in
another, "without reasonable grounds to believe the thing lawful." And Shaw,
C. J., once said that ordinarily in a statute it means "not merely `voluntarily'
but with a bad purpose; in other words, corruptly." In English and the
American statutes defining crimes "malice," "malicious," "maliciously," and
"malice aforethought" are words indicating intent, more purely technical than
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 17
"willful" or willfully," but "the difference between them is not great;" the
word "malice" not often being understood to require general malevolence
toward a particular individual, and signifying rather the intent from our legal
justification. (Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and
cases cited.)
But even in the absence of express words in a statute, setting out a
condition in the definition of a crime that it be committed "voluntarily,"
willfully," "maliciously" "with malice aforethought," or in one of the various
modes generally construed to imply a criminal intent, we think that reasoning
from general principles it will always be found that with the rare exceptions
hereinafter mentioned, to constitute a crime evil intent must combine with an
act. Mr. Bishop, who supports his position with numerous citations from the
decided cases, thus forcely present this doctrine:
In no one thing does criminal jurisprudence differ more from civil
than in the rule as to the intent. In controversies between private
parties the quo animo  with which a thing was done is sometimes
important, not always; but crime proceeds only from a criminal mind.
So that —
There can be no crime, large or small, without an evil mind. In other
words, punishment is the sentence of wickedness, without which it
can not be. And neither in philosophical speculation nor in religious
or mortal sentiment would any people in any age allow that a man
should be deemed guilty unless his mind was so. It is therefore a
principle of our legal system, as probably it is of every other, that the
essence of an offense is the wrongful intent, without which it can not
exists. We find this doctrine confirmed by —
Legal maxims. — The ancient wisdom of the law, equally with the
modern, is distinct on this subject. It consequently has supplied to us
such maxims as Actus non facit reum nisi mens sit rea, "the act itself
does not make man guilty unless his intention were so;" Actus me
incito factus non est meus actus, "an act done by me against my will
is not my act;" and others of the like sort. In this, as just said,
criminal jurisprudence differs from civil. So also —
Moral science and moral sentiment  teach the same thing. "By
reference to the intention, we inculpate or exculpate others or
ourselves without any respect to the happiness or misery actually

produced. Let the result of an action be what it may, we hold a man
guilty simply on the ground of intention; or, on the dame ground, we
hold him innocent." The calm judgment of mankind keeps this
doctrine among its jewels. In times of excitement, when vengeance
takes the place of justice, every guard around the innocent is cast
down. But with the return of reason comes the public voice that
where the mind is pure, he who differs in act from his neighbors
does not offend. And —
In the spontaneous judgment which springs from the nature given
by God to man, no one deems another to deserve punishment for
what he did from an upright mind, destitute of every form of evil.
And whenever a person is made to suffer a punishment which the
community deems not his due, so far from its placing an evil mark
upon him, it elevates him to the seat of the martyr. Even infancy
itself spontaneously pleads the want of bad intent in justification of
what has the appearance of wrong, with the utmost confidence that
the plea, if its truth is credited, will be accepted as good. Now these
facts are only the voice of nature uttering one of her immutable
truths. It is, then, the doctrine of the law, superior to all other
doctrines, because first in nature from which the law itself proceeds,
that no man is to be punished as a criminal unless his intent is
wrong. (Bishop's New Criminal Law, vol. 1, secs. 286 to 290.)
Compelled by necessity, "the great master of all things," an apparent
departure from this doctrine of abstract justice result from the adoption of
the arbitrary rule that Ignorantia juris non excusat  ("Ignorance of the law
excuses no man"), without which justice could not be administered in our
tribunals; and compelled also by the same doctrine of necessity, the courts
have recognized the power of the legislature to forbid, in a limited class of
cases, the doing of certain acts, and to make their commission criminal
without regard to the intent of the doer. Without discussing these
exceptional cases at length, it is sufficient here to say that the courts have
always held that unless the intention of the lawmaker to make the
commission of certain acts criminal without regard to the intent of the doer is
clear and beyond question the statute will not be so construed (cases cited in
Cyc., vol. 12, p. 158, notes 76 and 77); and the rule that ignorance of the
law excuses no man has been said not to be a real departure from the law's
fundamental principle that crime exists only where the mind is at fault,
because "the evil purpose need not be to break the law, and if suffices if it is
simply to do the thing which the law in fact forbids." (Bishop's New Criminal
Law, sec. 300, and cases cited.)
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 18
But, however this may be, there is no technical rule, and no pressing
necessity therefore, requiring mistake in fact to be dealt with otherwise that
in strict accord with the principles of abstract justice. On the contrary, the
maxim here is Ignorantia facti excusat  ("Ignorance or mistake in point of
fact is, in all cases of supposed offense, a sufficient excuse"). (Brown's Leg.
Max., 2d ed., 190.)
Since evil intent is in general an inseparable element in every crime, any
such mistake of fact as shows the act committed to have proceeded from no
sort of evil in the mind necessarily relieves the actor from criminal liability
provided always there is no fault or negligence on his part; and as laid down
by Baron Parke, "The guilt of the accused must depend on the circumstances
as they appear to him." (Reg. vs. Thurborn, 1 Den. C., 387; P. vs.  Anderson,
44 Cal.., 65; P. vs. Lamb, 54 Barb., 342; Yates  vs.  P., 32 N. Y., 509;
Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41; P.  vs. Miles,
55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the
question as to whether he honestly, in good faith, and without fault or
negligence fell into the mistake is to be determined by the circumstances as
they appeared to him at the time when the mistake was made, and the
effect which the surrounding circumstances might reasonably be expected to
have on his mind, in forming the intent, criminal or other wise, upon which
he acted.
If, in language not uncommon in the cases, one has reasonable
cause to believe  the existence of facts which will justify a killing —
or, in terms more nicely in accord with the principles on which the
rule is founded, if without fault or carelessness he does believe them
— he is legally guiltless of the homicide; though he mistook the
facts, and so the life of an innocent person is unfortunately
extinguished. In other words, and with reference to the right of self-
defense and the not quite harmonious authorities, it is the doctrine
of reason and sufficiently sustained in adjudication, that
notwithstanding some decisions apparently adverse, whenever a
man undertakes self-defense, he is justified in acting on the facts as
they appear to him. If, without fault or carelessness, he is misled
concerning them, and defends himself correctly according to what he
thus supposes the facts to be the law will not punish him though
they are in truth otherwise, and he was really no occassion for the
extreme measures. (Bishop's New Criminal Law, sec. 305, and large
array of cases there cited.)

The common illustration in the American and English textbooks of the
application of this rule is the case where a man, masked and disguised as a
footpad, at night and on a lonely road, "holds up" his friends in a spirit of
mischief, and with leveled pistol demands his money or his life, but is killed
by his friend under the mistaken belief that the attack is a real one, that the
pistol leveled at his head is loaded, and that his life and property are in
imminent danger at the hands of the aggressor. No one will doubt that if the
facts were such as the slayer believed them to be he would be innocent of
the commission of any crime and wholly exempt from criminal liability,
although if he knew the real state of the facts when he took the life of his
friend he would undoubtedly be guilty of the crime of homicide or
assassination. Under such circumstances, proof of his innocent mistake of
the facts overcomes the presumption of malice or criminal intent, and (since
malice or criminal intent is a necessary ingredient of the "act punished by
law" in cases of homicide or assassination) overcomes at the same time the
presumption established in article 1 of the code, that the " act punished by
law" was committed "voluntarily."
Parson, C.J., in the Massachusetts court, once said:
If the party killing had reasonable grounds for believing that the
person slain had a felonious design against him, and under that
supposition killed him, although it should afterwards appear that
there was no such design, it will not be murder, but it will be either
manslaughter or excusable homicide, according to the degree of
caution used and the probable grounds of such belief. (Charge to the
grand jury in Selfridge's case, Whart, Hom., 417, 418, Lloyd's report
of the case, p.7.)
In this case, Parker, J., charging the petit jury, enforced the doctrine as
follows:
A, in the peaceable pursuit of his affairs, sees B rushing rapidly
toward him, with an outstretched arms and a pistol in his hand, and
using violent menaces against his life as he advances. Having
approached near enough in the same attitude, A, who has a club in
his hand, strikes B over the head before or at the instant the pistol is
discharged; and of the wound B dies. It turns out the pistol was
loaded with powder only, and that the real design of B was only
to terrify A. Will any reasonable man say that A is more criminal that
he would have been if there had been a bullet in the pistol? Those
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 19
who hold such doctrine must require that a man so attacked must,
before he strikes the assailant, stop and ascertain how the pistol is
loaded — a doctrine which would entirely take away the essential
right of self-defense. And when it is considered that the jury who try
the cause, and not the party killing, are to judge of the reasonable
grounds of his apprehension, no danger can be supposed to flow
from this principle. (Lloyd's Rep., p. 160.)
To the same effect are various decisions of the supreme court of Spain, cited
by Viada, a few of which are here set out in full because the facts are
somewhat analogous to those in the case at bar.
QUESTION III. When it is shown that the accused was sitting at his
hearth, at night, in company only of his wife, without other light than
reflected from the fire, and that the man with his back to the door
was attending to the fire, there suddenly entered a person whom he
did not see or know, who struck him one or two blows, producing a
contusion on the shoulder, because of which he turned, seized the
person and took from his the stick with which he had undoubtedly
been struck, and gave the unknown person a blow, knocking him to
the floor, and afterwards striking him another blow on the head,
leaving the unknown lying on the floor, and left the house. It turned
out the unknown person was his father-in-law, to whom he rendered
assistance as soon as he learned his identity, and who died in about
six days in consequence of cerebral congestion resulting from the
blow. The accused, who confessed the facts, had always sustained
pleasant relations with his father-in-law, whom he visited during his
sickness, demonstrating great grief over the occurrence. Shall he be
considered free from criminal responsibility, as having acted in self-
defense, with all the circumstances related in paragraph 4, article 8,
of the Penal Code? The criminal branch of the Audiencia  of Valladolid
found that he was an illegal aggressor, without sufficient
provocation, and that there did not exists rational necessity for the
employment of the force used, and in accordance with articles 419
and 87 of the Penal Code condemned him to twenty months of
imprisonment, with accessory penalty and costs. Upon appeal by the
accused, he was acquitted by the supreme court, under the following
sentence: "Considering, from the facts found by the sentence to
have been proven, that the accused was surprised from behind, at
night, in his house beside his wife who was nursing her child, was
attacked, struck, and beaten, without being able to distinguish with
which they might have executed their criminal intent, because of the

there was no other than fire light in the room, and considering that
in such a situation and when the acts executed demonstrated that
they might endanger his existence, and possibly that of his wife and
child, more especially because his assailant was unknown, he should
have defended himself, and in doing so with the same stick with
which he was attacked, he did not exceed the limits of self-defense,
nor did he use means which were not rationally necessary,
particularly because the instrument with which he killed was the one
which he took from his assailant, and was capable of producing
death, and in the darkness of the house and the consteration which
naturally resulted from such strong aggression, it was not given him
to known or distinguish whether there was one or more assailants,
nor the arms which they might bear, not that which they might
accomplish, and considering that the lower court did not find from
the accepted facts that there existed rational necessity for the means
employed, and that it did not apply paragraph 4 of article 8 of the
Penal Code, it erred, etc." (Sentence of supreme court of Spain,
February 28, 1876.) (Viada, Vol. I, p. 266.) .
QUESTION XIX. A person returning, at night, to his house, which
was situated in a retired part of the city, upon arriving at a point
where there was no light, heard the voice of a man, at a distance of
some 8 paces, saying: "Face down, hand over you money!" because
of which, and almost at the same money, he fired two shots from his
pistol, distinguishing immediately the voice of one of his friends (who
had before simulated a different voice) saying, "Oh! they have killed
me," and hastening to his assistance, finding the body lying upon the
ground, he cried, "Miguel, Miguel, speak, for God's sake, or I am
ruined," realizing that he had been the victim of a joke, and not
receiving a reply, and observing that his friend was a corpse, he
retired from the place. Shall he be declared exempt in toto from
responsibility as the author of this homicide, as having acted in just
self-defense under the circumstances defined in paragraph 4, article
8, Penal Code? The criminal branch of the Audiencia of Malaga did
not so find, but only found in favor of the accused two of the
requisites of said article, but not that of the reasonableness of the
means employed to repel the attack, and, therefore, condemned the
accused to eight years and one day of prison mayor, etc. The
supreme court acquitted the accused on his appeal from this
sentence, holding that the accused was acting under a justifiable and
excusable mistake of fact as to the identity of the person calling to
him, and that under the circumstances, the darkness and
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 20
remoteness, etc., the means employed were rational and the
shooting justifiable. (Sentence supreme court, March 17, 1885.)
(Viada, Vol. I, p. 136.)
QUESTION VI. The owner of a mill, situated in a remote spot, is
awakened, at night, by a large stone thrown against his window —
at this, he puts his head out of the window and inquires what is
wanted, and is answered "the delivery of all of his money, otherwise
his house would be burned" — because of which, and observing in
an alley adjacent to the mill four individuals, one of whom addressed
him with blasphemy, he fired his pistol at one the men, who, on the
next morning was found dead on the same spot. Shall this man be
declared exempt from criminal responsibility as having acted in just
self-defense with all of the requisites of law? The criminal branch of
the requisites of law? The criminal branch of the Audiencia  of
Zaragoza finds that there existed in favor of the accused a majority
of the requisites to exempt him from criminal responsibility, but not
that of reasonable necessity for the means, employed, and
condemned the accused to twelve months of prision correctional  for
the homicide committed. Upon appeal, the supreme court acquitted
the condemned, finding that the accused, in firing at the
malefactors, who attack his mill at night in a remote spot by
threatening robbery and incendiarism, was acting in just self-defense
of his person, property, and family. (Sentence of May 23, 1877). (I
Viada, p. 128.)
A careful examination of the facts as disclosed in the case at bar convinces
us that the defendant Chinaman struck the fatal blow alleged in the
information in the firm belief that the intruder who forced open the door of
his sleeping room was a thief, from whose assault he was in imminent peril,
both of his life and of his property and of the property committed to his
charge; that in view of all the circumstances, as they must have presented
themselves to the defendant at the time, he acted in good faith, without
malice, or criminal intent, in the belief that he was doing no more than
exercising his legitimate right of self-defense; that had the facts been as he
believed them to be he would have been wholly exempt from criminal liability
on account of his act; and that he can not be said to have been guilty of
negligence or recklessness or even carelessness in falling into his mistake as
to the facts, or in the means adopted by him to defend himself from the
imminent danger which he believe threatened his person and his property
and the property under his charge.
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 21

The judgment of conviction and the sentence imposed by the trial court
should be reversed, and the defendant acquitted of the crime with which he
is charged and his bail bond exonerated, with the costs of both instance de
oficio. So ordered.

Johnson Moreland and Elliott, JJ., concur. 

Arellano, C.J., and Mapa, J., dissent.

Separate Opinions

TORRES, J.,  dissenting:

The writer, with due respect to the opinion of the majority of the court,
believes that, according to the merits of the case, the crime of homicide by
reckless negligence, defined and punishes in article 568 of the Penal Code,
was committed, inasmuch as the victim was wilfully (voluntariomente) killed,
and while the act was done without malice or criminal intent it was, however,
executed with real negligence, for the acts committed by the deceased could
not warrant the aggression by the defendant under the erroneous belief on
the part of the accused that the person who assaulted him was a malefactor;
the defendant therefore incurred responsibility in attacking with a knife the
person who was accustomed to enter said room, without any justifiable
motive.

By reason of the nature of the crime committed, in the opinion of the

undersigned the accused should be sentenced to the penalty of one year and
one month of prision correctional, to suffer the accessory penalties provided
in article 61, and to pay an indemnify of P1,000 to the heirs of the deceased,
with the costs of both instances, thereby reversing the judgment appealed
from.

[No. 38511. October 6, 1933]
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff and appellee,
vs. FRANCISCO CAGOCO Y RAMONES (alias FRANCISCO CAGURO,
alias FRANCISCO ADMONES, alias BUCOY, alias FRISCO GUY),
defendant and appellant.
CRIMINAL LAW; MURDER; LACK OF INTENTION TO COMMIT SO
GREAT A WRONG AS THAT COMMITTED; TREACHERY.—Under the
circumstances of this case the defendant is liable for the killing of the
deceased because his death was the direct consequence of defendant's
felonious act of striking him on the head. If the defendant had not
committed the assault in a treacherous manner, he would nevertheless have
been guilty of homicide, although he did not intend to kill the deceased, and
since the defendant did commit the crime with treachery, he is guilty of
murder, because of the presence of the qualifying circumstance of treachery.
APPEAL from a judgment of the Court of First Instance of Manila.
Torres, J.
The facts are stated in the opinion of the court.
W. A. Caldwell and Sotto & Astilla for appellant.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 22
Solicitor-General Bengzon for appellee.
VICKERS, J.:
The accused was charged in the Court of First Instance of Manila with the
crime of asesinato, committed as follows:
That on or about the 24th day of July, 1932, in the City of Manila,
Philippine Islands, the said accused did then and there willfully,
unlawfully and feloniously, without any just cause therefor and with
intent to kill and treachery, assault and attack one Yu Lon by
suddenly giving him a fist blow on the back part of the head, under
conditions which intended directly and especially to insure, the
accomplishment of his purpose without risk to himself arising from
any defense the victim Yu Lon might make, thus causing him to fall
on the ground as a consequence of which he suffered a lacerated
wound on the scalp and a fissured fracture on the left occipital
region, which were necessarily mortal and which caused the
immediate death of the said Yu Lon.
After hearing the evidence, Judge Luis P. Torres found the defendant guilty
as charged, and sentenced him to suffer reclusion perpetua, with the
accessory penalties of the law, to indemnify the heirs of the deceased Yu Lon
in the sum of P1,000, without subsidiary imprisonment in case of insolvency,
and to pay the costs.
Appellant's attorney de oficio makes the following assignments of error:
1. The trial court erred in finding that the appellant the person who
committed the assault on Yu Lon, the victim to the crime charged in
the information.
2. Assuming that the appellant is the person who committed the
assault on Yu Lon (a fact which we specifically deny), the trial court
erred in finding that the appellant struck his supposed victim.
3. Assuming that the appellant is the person who committed the
assault on Yu Lon, and that the appellant did strike his supposed
victim (facts which we specifically deny) the trial court erred in
finding that the blow was dealt from the victim's rear.

4. The trial court erred in finding that the identity of the appellant
was fully established.
5. Assuming that the four preceding errors assigned are without
merit, the trial court erred in convicting the appellant of the crime of
murder, under article 248 of the Revised Penal Code, instead of
convicting him of the crime of maltreatment, under article 266 of the
said Code.
It appears from the evidence that about 8:30 on the night of July 24, 1932
Yu Lon and Yu Yee, father and son, stopped to talk on the sidewalk at the
corner of Mestizos and San Fernando Streets in the District of San Nicolas Yu
Lon was standing near the outer edge of the sidewalk, with his back to the
street. While they were talking, a man passed back and forth behind Yu Lon
once or twice, and when Yu Yee was about to take leave of his father, the
man that had been passing back the forth behind Yu Lon approached him
from behind and suddenly and without warning struck him with his fist on
the back part of the head. Yu Lon tottered and fell backwards. His head
struck the asphalt pavement; the lower part of his body fell on the sidewalk.
His assailants immediately ran away. Yu Yee pursued him through San
Fernando, Camba, and Jaboneros Streets, and then lost sight of him. Two
other Chinese, Chin Sam and Yee Fung, who were walking along Calle
Mestizos, saw the incident and joined him in the pursuit of Yu Lon's
assailant. The wounded man was taken to the Philippine General Hospital,
were he died about midnight. A post-mortem examination was made the
next day by Dr. Anastacia Villegas, who found that the deceased had
sustained a lacerated wound and fracture of the skull in the occipital region,
and that he had died from cerebral hemorrhage; that he had tuberculosis,
though not in an advanced stage, and a tumor in the left kidney.
Yu Yee promptly reported the incident to the police, and about 3 o'clock the
next morning Sergeant Sol Cruz and other detectives, accompanied by Yu
Yee, went to the scene of the crime and found blood stains in the street. Yu
Yee said that he could recognize his father's assailant, and described him as
being about five feet in height, 25 or 30 years old, with long hair and
wearing a suit of dark clothes. After Sergeant Sol Cruz had been working on
the case for three or four days he received information that the accused
might be the person that had assaulted Yu Lon, and on August 4th the
accused was arrested by detectives Manrique and Bustamante. He was
wearing a dark wool suit. Yu Yee was immediately called to the police
station. The accused was placed near the middle of a line of some eleven
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 23
persons that had been detained for investigation. They were wearing
different kinds of clothes. Yu Yee without hesitation pointed out the
defendant as the person that had assaulted Yu Lon. He identified him not
only by his long hair combed towards the back and worn long on the sides in
the form of side-whiskers (patillas), but also by his high cheek-bones and the
fact that his ears have no lobes. The defendant was identified at the trial not
only by Yu Yee, but also by Chin Sam and Yee Fung.
With respect to the first four assignment of error, which raise questions of
fact as to the identification of the accused, and whether or not be struck the
deceased, and if he did assault the deceased, whether he did so in a
treacherous manner, we see no sufficient reason, after considering the
evidence and arguments of counsel, to doubt the correctness of the findings
of the trial judge. The accused was identified by Yu Yee and two other
Chinese, and although Yu Yee may have overstated at the trial some of the
facial peculiarities in the defendant that he claimed to have observed at the
time of the incident, it must be remembered that Yu Yee without hesitation
picked the defendant out of a group of eleven persons as his father's
assailant, and that he had exceptional opportunities for observing his father's
assailant, because while that person was walking back and forth behind Yu
Lon, Yu Yee was facing the assailant.
We find the testimony of the defendant and his witnesses as to the
whereabouts of the defendant on the night in question unworthy of
credit.1awphil.net
The testimony of the three Chinese that a man struck the deceased and then
ran away is corroborated by the testimony of a 15-year old boy, Dominador
Sales.
As to the contention that the deceased would have fallen on his face if he
had been struck on the back of the head, the expert testimony shows that in
such a case a person instinctively makes an effort to preserve or regain his
balance, and that as result thereof the deceased may have fallen backwards.
Another consideration is that sidewalks almost invariably slope towards the
pavement, and this being true, when the deceased straightened up, he
naturally tended to fall backwards. The evidence leaves no room for doubt
that the accused struck the deceased on the back of the head, because
when the deceased was assaulted he and Yu Yee were standing on the
sidewalk, facing each other, and if the accused had not struck the deceased
on the back of the head, it would have been necessary for him to go

between the deceased and Yu Yee. Since the accused struck the deceased
from behind and without warning, he acted with treachery. "There is
treachery when the offender commits any of the crimes against the person,
employing means, methods, or forms in the execution thereof which tend
directly and especially to insure its execution, without risk to himself arising
from the defense which the offended party might make." (Article 14, No. 16,
of the Revised Penal Code.)
The fourth assignment of error is a repetition of the first.
In the fifth assignment of error it is contended that the appellant if guilty at
all, should be punished in accordance with article 266 of the Revised Penal
Code, or for slight physical injuries instead of murder.
Paragraph No. 1 of article 4 of the Revised Penal Code provide that criminal
liability shall be incurred by any person committing a felony ( delito) although
the wrongful act done be different from that which he intended; but in order
that a person may be criminally liable for a felony different from that which
he proposed to commit, it is indispensable that the two following requisites
be present, to wit: (a) That a felony was committed; and (b) that the wrong
done to the aggrieved person be the direct consequence of the crime
committed by the offender. U.S. vs. Brobst, 14 Phil., 310; U.S. vs. Mallari, 29
Phil., 14 U.S. vs. Diana, 32 Phil., 344.)
In the Brobst case, supra, it was held that death may result from a blow over
or near the heart or in the abdominal region, notwithstanding the fact that
the blow leaves no outward mark of violence; that where death result as the
direct consequence of the use of illegal violence, the mere fact that the
diseased or weakened condition of the injured person contributed to his
death, does not relieve the illegal aggressor of criminal responsibility; that
one is not relieved, under the law in these Islands, from criminal liability for
the natural consequences of one's illegal acts, merely because one does not
intend to produce such consequences; but that in such cases, the lack of
intention, while it does not exempt from criminal liability, is taken into
consideration as an extenuating circumstance. (U.S. vs. Luciano, 2 Phil., 96.)
The reasoning of the decisions cited is applicable to the case at bar. There
can be no reasonable doubt as to the cause of the death of Yu Lon. There is
nothing to indicate that it was due to some extraneous case. It was clearly
the direct consequence of defendants felonious act, and the fact that the
defendant did not intend to cause so great an injury does not relieve him
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 24
from the consequence of his unlawful act, but is merely a mitigating
circumstance (U.S. vs. Rodriguez, 23 Phil., 22).
The next question is whether the crime committed by the defendant should
be classified as homicide or murder. Can the defendant be convicted of
murder when he did not intend to kill the deceased?
We have seen that under the circumstances of this case the defendant is
liable for the killing of Yu Lon, because his death was the direct consequence
of defendant's felonious act of striking him on the head. If the defendant had
not committed the assault in a treacherous manner. he would nevertheless
have been guilty of homicide, although he did not intend to kill the
deceased; and since the defendant did commit the crime with treachery, he
is guilty of murder, because of the presence of the qualifying circumstance of
treachery.
The Supreme Court of Spain has held that there is no incompatibility, moral
or legal, between alevosia and the mitigating circumstance of not having
intended to cause so great an injury:
Considering that there is no moral or legal incompatibility between
treachery and the mitigating circumstance No. 3 of article 9 of the
Penal Code, because the former depends upon the manner of
execution of the crime and the latter upon the tendency of the will
towards a definite purpose, and therefore there is no obstacle, in
case treacherous means, modes or forms are employed, to the
appreciation of the first of said circumstances and simultaneously of
the second if the injury produced exceeds the limits intended by the
accused; and for that reason it cannot be held in the instant case
that this mitigating circumstances excludes treachery, or that the
accused, being chargeable with the death of the offended party,
should not be liable due to the voluntary presence of treachery in
the act perpetrated, although with mitigation corresponding to the
disparity between the act intended and the act consummated, etc.
(Decision of May 10, 1905, Gazette of April 20, 906; Viada: 5th
edition, Vol. 2, p. 156.)
In the case of the United States vs. Candelaria (2 Phil., 104), this court
speaking through Chief Justice Arellano said:
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 25

In trying Jacinto to a tree the three defendants acted treacherously

(alevosamente). Whether it was to prevent him from making
resistance, whether it was to torture him for the purpose of making
him give information, or whether it was for the purpose of inflicting
further punishment, the fact is that by this means the defendants
secured themselves against any risk which might have arisen from
an attempt at self-defense on the part of the victim. We are of
opinion that they had no intention to cause so great an evil as that
which resulted, but this does not neutralize that other qualifying
circumstance of the resulting death, because if there was
no alevosia for the purpose of killing there was alevosia for the
purpose of the illtreating. The means employed were not made use
of for the precise purpose of making certain the death of Jacinto de
Jesus but as a safe means of illtreating him without risk to the
persons who were doing so. If by this means the ill treatment was
aggravated, it follows that it is a qualifying circumstances in the
death which resulted. It was not a condition of the purpose, but it
was a condition of the criminal act itself, in whatever sense this be
taken.

The penalty of murder (article 248 of the Revised Penal Code) is reclusion
temporal in its maximum period to death, and there being present in this
case one mitigating and no aggravating circumstance the prison sentence of
the appellant is reduced to seventeen years, four months, and one day
of reclusion temporal. As thus modified, the decision appealed from is
affirmed, with the costs against the appellant.

Avanceña, C.J., Street, Abad Santos, and Butte, JJ., concur.


No. L-72964. January 7, 1988.*
FILOMENO URBANO, petitioner, vs. HON. INTERMEDIATE
APPELLATE COURT AND PEOPLE OF THE PHILIPPINES,
respondents.
Criminal Law; Proximate Cause; Definition of proximate cause in Vda. de
Bataclan, et al. vs. Medina adopted.—In Vda. de Bataclan, et al. v. Medina
(102 Phil. 1181), we adopted the following definition of proximate cause: “x
x x A satisfactory definition of proximate cause is found in Volume 38, pages
695-696 of American Jurisprudence, cited by plaintiffs-appellants in their
brief. It is as follows: “x x x ‘that cause, which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces the injury,
and without which the result would not have occurred.’ And more
comprehensively, the proximate legal cause is that acting first and producing
the injury, either immediately or by setting other events in motion, all
constituting a natural and continuous chain of events, each having a close
causal connection with its immediate predecessor, the final event in the
chain immediately effecting the injury as a natural and probable result of the
cause which first acted, under such circumstances that the person
responsible for the first event should, as an ordinarily prudent and intelligent
person, have reasonable ground to expect at the moment of his act or
default that an injury to some person might probably result therefrom.” (at
pp. 185-186)
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 26
Same; Same; Same; Death must be the direct, natural and logical
consequence of the wounds inflicted; Based on Medical findings, the
infection was an efficient intervening cause distinct and foreign to the crime.
—The rule is that the death of the victim must be the direct, natural, and
logical consequence of the wound inflicted upon him by the accused. (People
v. Cardenas, supra). And since we are dealing with a criminal conviction, the
proof that the accused caused the victim’s death must convince a rational
mind beyond reasonable doubt. The medical findings, however, lead us to a
distinct possibility that the infection of the wound by tetanus was an efficient
intervening cause later or between the time Javier was wounded to the time
of his death. The infection was, therefore, distinct and foreign to the crime.
Same; Same; Tetanus may have been the proximate cause of Javier’s death
with which petitioner had nothing to do.—Doubts are present. There is a
likelihood that the wound was but the remote cause and its subsequent
infection, for failure to take necessary precautions, with tetanus may have
been the proximate cause of Javier’s death with which the petitioner had
nothing to do.
Same; Criminal Liability; Petitioner at the very least is guilty of Slight Physical
Injury.—It strains the judicial mind to allow a dear aggressor to go scot free
of criminal liability. At the very least, the records show he is guilty of
inflicting slight physical injuries. However, the petitioner’s criminal liability in
this respect was wiped out by the victim’s own act. After the hacking
incident, Urbano and Javier used the facilities of barangay mediators to
effect a compromise agreement where Javier forgave Urbano while Urbano
defrayed the medical expenses of Javier. This settlement of minor offenses is
allowed under the express provisions of Presidential Decree No. 1508,
Section 2(3).
Same; Same; A person while not criminally liable may still be civilly liable; a
well-settled doctrine.—We must stress, however, that our discussion of
proximate cause and remote cause is limited to the criminal aspects of this
rather unusual case. It does not necessarily follow that the petitioner is also
free of civil liability. The well-settled doctrine is that a person, while not
criminally liable, may still be civilly liable.
PETITION to review the decision of the Intermediate Appellate Court.
The facts are stated in the opinion of the Court.

GUTIERREZ, JR., J.:
This is a petition to review the decision of the then Intermediate Appellate
Court which affirmed the decision of the then Circuit Criminal Court of
Dagupan City finding petitioner Filomeno Urban guilty beyond reasonable
doubt of the crime of homicide.
The records disclose the following facts of the case.
At about 8:00 o'clock in the morning of October 23, 1980, petitioner
Filomeno Urbano went to his ricefield at Barangay Anonang, San Fabian,
Pangasinan located at about 100 meters from the tobacco seedbed of
Marcelo Javier. He found the place where he stored his palay flooded with
water coming from the irrigation canal nearby which had overflowed. Urbano
went to the elevated portion of the canal to see what happened and there he
saw Marcelo Javier and Emilio Erfe cutting grass. He asked them who was
responsible for the opening of the irrigation canal and Javier admitted that
he was the one. Urbano then got angry and demanded that Javier pay for his
soaked palay. A quarrel between them ensued. Urbano unsheathed his bolo
(about 2 feet long, including the handle, by 2 inches wide) and hacked Javier
hitting him on the right palm of his hand, which was used in parrying the
bolo hack. Javier who was then unarmed ran away from Urbano but was
overtaken by Urbano who hacked him again hitting Javier on the left leg with
the back portion of said bolo, causing a swelling on said leg. When Urbano
tried to hack and inflict further injury, his daughter embraced and prevented
him from hacking Javier.
Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe brought
Javier to his house about 50 meters away from where the incident
happened. Emilio then went to the house of Barangay Captain Menardo
Soliven but not finding him there, Emilio looked for barrio councilman Felipe
Solis instead. Upon the advice of Solis, the Erfes together with Javier went to
the police station of San Fabian to report the incident. As suggested by
Corporal Torio, Javier was brought to a physician. The group went to Dr.
Guillermo Padilla, rural health physician of San Fabian, who did not attend to
Javier but instead suggested that they go to Dr. Mario Meneses because
Padilla had no available medicine.
After Javier was treated by Dr. Meneses, he and his companions returned to
Dr. Guillermo Padilla who conducted a medico-legal examination. Dr. Padilla
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 27
issued a medico-legal certificate (Exhibit "C" dated September 28, 1981)
which reads:
TO WHOM IT MAY CONCERN:
This is to certify that I have examined the wound of Marcelo
Javier, 20 years of age, married, residing at Barangay
Anonang, San Fabian, Pangasinan on October 23, 1980 and
found the following:
1 -Incised wound 2 inches in length at the upper portion of
the lesser palmar prominence, right.
As to my observation the incapacitation is from (7-9) days
period. This wound was presented to me only for medico-
legal examination, as it was already treated by the other
doctor. (p. 88, Original Records)
Upon the intercession of Councilman Solis, Urbano and Javier agreed to
settle their differences. Urbano promised to pay P700.00 for the medical
expenses of Javier. Hence, on October 27, 1980, the two accompanied by
Solis appeared before the San Fabian Police to formalize their amicable
settlement. Patrolman Torio recorded the event in the police blotter (Exhibit
A), to wit:
xxx xxx xxx
Entry Nr 599/27 Oct '80/103OH/ Re entry Nr 592 on page
257 both parties appeared before this Station accompanied
by brgy. councilman Felipe Solis and settled their case
amicably, for they are neighbors and close relatives to each
other. Marcelo Javier accepted and granted forgiveness to
Filomeno Urbano who shoulder (sic) all the expenses in his
medical treatment, and promising to him and to this Office
that this will never be repeated anymore and not to harbour
any grudge against each other. (p. 87, Original Records.)
Urbano advanced P400.00 to Javier at the police station. On November 3,
1980, the additional P300.00 was given to Javier at Urbano's house in the
presence of barangay captain Soliven.

At about 1:30 a.m. on November 14, 1980, Javier was rushed to the
Nazareth General Hospital in a very serious condition. When admitted to the
hospital, Javier had lockjaw and was having convulsions. Dr. Edmundo
Exconde who personally attended to Javier found that the latter's serious
condition was caused by tetanus toxin. He noticed the presence of a healing
wound in Javier's palm which could have been infected by tetanus.
On November 15, 1980 at exactly 4:18 p.m., Javier died in the hospital. The
medical findings of Dr. Exconde are as follows:
Date Diagnosis
11-14-80 ADMITTED due to trismus
adm. at DX TETANUS
1:30 AM Still having frequent muscle spasm. With diffi-
#35, 421 culty opening his mouth. Restless at times. Febrile
11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden
cessation of respiration and HR after muscular spasm.
02 inhalation administered. Ambo bag resuscitation and cardiac massage
done but to no avail.
Pronounced dead by Dra. Cabugao at 4:18 P.M.
PMC done and cadaver brought home by relatives. (p. 100, Original Records)
In an information dated April 10, 1981, Filomeno Urbano was charged with
the crime of homicide before the then Circuit Criminal Court of Dagupan City,
Third Judicial District.
Upon arraignment, Urbano pleaded "not guilty." After trial, the trial court
found Urbano guilty as charged. He was sentenced to suffer an
indeterminate prison term of from TWELVE (12) YEARS of prision mayor, as
minimum to SEVENTEEN (17) years, FOUR (4) MONTHS and ONE (1) DAY
of  reclusion temporal, as maximum, together with the accessories of the law,
to indemnify the heirs of the victim, Marcelo Javier, in the amount of
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 28
P12,000.00 without subsidiary imprisonment in case of insolvency, and to
pay the costs. He was ordered confined at the New Bilibid Prison, in
Muntinlupa, Rizal upon finality of the decision, in view of the nature of his
penalty.
The then Intermediate Appellate Court affirmed the conviction of Urbano on
appeal but raised the award of indemnity to the heirs of the deceased to
P30,000.00 with costs against the appellant.
The appellant filed a motion for reconsideration and/or new trial. The motion
for new trial was based on an affidavit of Barangay Captain Menardo Soliven
(Annex "A") which states:
That in 1980, I was the barrio captain of Barrio Anonang,
San Fabian, Pangasinan, and up to the present having been
re-elected to such position in the last barangay elections on
May 17, 1982;
That sometime in the first week of November, 1980, there
was a typhoon that swept Pangasinan and other places of
Central Luzon including San Fabian, a town of said province;
That during the typhoon, the sluice or control gates of the
Bued irrigation dam which irrigates the ricefields of San
Fabian were closed and/or controlled so much so that water
and its flow to the canals and ditches were regulated and
reduced;
That due to the locking of the sluice or control gates of the
dam leading to the canals and ditches which will bring water
to the ricefields, the water in said canals and ditches became
shallow which was suitable for catching mudfishes;
That after the storm, I conducted a personal survey in the
area affected, with my secretary Perfecto Jaravata;
That on November 5, 1980, while I was conducting survey, I
saw the late Marcelo Javier catching fish in the shallow
irrigation canals with some companions;

That few days there after,or on November l5, l980, I came
to know that said Marcelo Javier died of tetanus. (p. 33,
Rollo)
The motion was denied. Hence, this petition.
In a resolution dated July 16, 1986, we gave due course to the petition.
The case involves the application of Article 4 of the Revised Penal Code
which provides that "Criminal liability shall be incurred: (1) By any person
committing a felony (delito) although the wrongful act done be different
from that which he intended ..." Pursuant to this provision "an accused is
criminally responsible for acts committed by him in violation of law and for all
the natural and logical consequences resulting therefrom." (People v.
Cardenas, 56 SCRA 631).
The record is clear that Marcelo Javier was hacked by the petitioner who
used a bolo as a result of which Javier suffered a 2-inch incised wound on his
right palm; that on November 14, 1981 which was the 22nd day after the
incident, Javier was rushed to the hospital in a very serious condition and
that on the following day, November 15, 1981, he died from tetanus.
Under these circumstances, the lower courts ruled that Javier's death was
the natural and logical consequence of Urbano's unlawful act. Hence, he was
declared responsible for Javier's death. Thus, the appellate court said:
The claim of appellant that there was an efficient cause
which supervened from the time the deceased was wounded
to the time of his death, which covers a period of 23 days
does not deserve serious consideration. True, that the
deceased did not die right away from his wound, but the
cause of his death was due to said wound which was
inflicted by the appellant. Said wound which was in the
process of healing got infected with tetanus which ultimately
caused his death.
Dr. Edmundo Exconde of the Nazareth General Hospital
testified that the victim suffered lockjaw because of the
infection of the wound with tetanus. And there is no other
way by which he could be infected with tetanus except
through the wound in his palm (tsn., p. 78, Oct. 5, 1981).
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 29
Consequently, the proximate cause of the victim's death was
the wound which got infected with tetanus. And the settled
rule in this jurisdiction is that an accused is liable for all the
consequences of his unlawful act. (Article 4, par. 1, R.P.C.
People v. Red, CA 43 O.G. 5072; People v. Cornel 78 Phil.
418).
Appellant's allegation that the proximate cause of the
victim's death was due to his own negligence in going back
to work without his wound being properly healed, and lately,
that he went to catch fish in dirty irrigation canals in the first
week of November, 1980, is an afterthought, and a
desperate attempt by appellant to wiggle out of the
predicament he found himself in. If the wound had not yet
healed, it is impossible to conceive that the deceased would
be reckless enough to work with a disabled hand. (pp. 20-
21, Rollo)
The petitioner reiterates his position that the proximate cause of the death of
Marcelo Javier was due to his own negligence, that Dr. Mario Meneses found
no tetanus in the injury, and that Javier got infected with tetanus when after
two weeks he returned to his farm and tended his tobacco plants with his
bare hands exposing the wound to harmful elements like tetanus germs.
The evidence on record does not clearly show that the wound inflicted by
Urbano was infected with tetanus at the time of the infliction of the wound.
The evidence merely confirms that the wound, which was already healing at
the time Javier suffered the symptoms of the fatal ailment, somehow got
infected with tetanus However, as to when the wound was infected is not
clear from the record.
In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we adopted the
following definition of proximate cause:
xxx xxx xxx
... A satisfactory definition of proximate cause is found in
Volume 38, pages 695-696 of American Jurisprudence, cited
by plaintiffs-appellants in their brief. It is as follows:

... "that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the
injury, and without which the result would not have
occurred."And more comprehensively, "the proximate legal
cause is that acting first and producing the injury, either
immediately or by setting other events in motion, all
constituting a natural and continuous chain of events, each
having a close causal connection with its immediate
predecessor, the final event in the chain immediately
effecting the injury as a natural and probable result of the
cause which first acted, under such circumstances that the
person responsible for the first event should, as an ordinarily
prudent and intelligent person, have reasonable ground to
expect at the moment of his act or default that an injury to
some person might probably result therefrom." (at pp. 185-
186)
The issue, therefore, hinges on whether or not there was an efficient
intervening cause from the time Javier was wounded until his death which
would exculpate Urbano from any liability for Javier's death.
We look into the nature of tetanus-
The  incubation period of tetanus, i.e., the time between
injury and the appearance of unmistakable symptoms,
ranges from 2 to 56 days. However, over 80 percent of
patients become symptomatic within 14 days. A short
incubation period indicates severe disease, and when
symptoms occur within 2 or 3 days of injury the mortality
rate approaches 100 percent.
Non-specific premonitory symptoms such as restlessness,
irritability, and headache are encountered occasionally, but
the commonest presenting complaints are pain and stiffness
in the jaw, abdomen, or back and difficulty swallowing. As
the progresses, stiffness gives way to rigidity, and patients
often complain of difficulty opening their mouths. In fact,
trismus in the commonest manifestation of tetanus and is
responsible for the familiar descriptive name of lockjaw. As
more muscles are involved, rigidity becomes generalized,
and sustained contractions called risus sardonicus. The
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 30
intensity and sequence of muscle involvement is quite
variable. In a small proportion of patients, only local signs
and symptoms develop in the region of the injury. In the
vast majority, however, most muscles are involved to some
degree, and the signs and symptoms encountered depend
upon the major muscle groups affected.
Reflex spasm usually occur within 24 to 72 hours of the first
symptom, an interval referred to as the onset time. As in the
case of the incubation period, a short onset time is
associated with a poor prognosis. Spasms are caused by
sudden intensification of afferent stimuli arising in the
periphery, which increases rigidity and causes simultaneous
and excessive contraction of muscles and their antagonists.
Spasms may be both painful and dangerous. As the disease
progresses, minimal or inapparent stimuli produce more
intense and longer lasting spasms with increasing frequency.
Respiration may be impaired by laryngospasm or tonic
contraction of respiratory muscles which prevent adequate
ventilation. Hypoxia may then lead to irreversible central
nervous system damage and death.
Mild tetanus is characterized by an incubation period of at
least 14 days and an onset time of more than 6
days.  Trismus is usually present, but dysphagia is absent
and generalized spasms are brief and mild. Moderately
severe tetanus has a somewhat shorter incubation period
and onset time; trismus is marked, dysphagia and
generalized rigidity are present, but ventilation remains
adequate even during spasms. The criteria for severe
tetanus include a short incubation time, and an onset time of
72 hrs., or less, severe trismus, dysphagia and rigidity and
frequent prolonged, generalized convulsive spasms.
(Harrison's Principle of Internal Medicine, 1983 Edition, pp.
1004-1005; Emphasis supplied)
Therefore, medically speaking, the reaction to tetanus found inside a man's
body depends on the incubation period of the disease.
In the case at bar, Javier suffered a 2-inch incised wound on his right palm
when he parried the bolo which Urbano used in hacking him. This incident

took place on October 23, 1980. After 22 days, or on November 14, 1980, he
suffered the symptoms of tetanus, like lockjaw and muscle spasms. The
following day, November 15, 1980, he died.
If, therefore, the wound of Javier inflicted by the appellant was already
infected by tetanus germs at the time, it is more medically probable that
Javier should have been infected with only a mild cause of tetanus because
the symptoms of tetanus appeared on the 22nd day after the hacking
incident or more than 14 days  after the infliction of the wound. Therefore,
the onset time should have been more than six days. Javier, however, died
on the second day from the onset time. The more credible conclusion is that
at the time Javier's wound was inflicted by the appellant, the severe form of
tetanus that killed him was not yet present. Consequently, Javier's wound
could have been infected with tetanus after the hacking incident. Considering
the circumstance surrounding Javier's death, his wound could have been
infected by tetanus 2 or 3 or a few but not 20 to 22 days before he died.
The rule is that the death of the victim must be the direct, natural, and
logical consequence of the wounds inflicted upon him by the accused .
(People v. Cardenas, supra) And since we are dealing with a criminal
conviction, the proof that the accused caused the victim's death must
convince a rational mind beyond reasonable doubt. The medical findings,
however, lead us to a distinct possibility that the infection of the wound by
tetanus was an efficient intervening cause later or between the time Javier
was wounded to the time of his death. The infection was, therefore, distinct
and foreign to the crime. (People v. Rellin, 77 Phil. 1038).
Doubts are present. There is a likelihood that the wound was but
the remote  cause and its subsequent infection, for failure to take necessary
precautions, with tetanus may have been the  proximate cause of Javier's
death with which the petitioner had nothing to do. As we ruled in Manila
Electric Co. v. Remoquillo, et al. (99 Phil. 118).
"A prior and remote cause cannot be made the be of an
action if such remote cause did nothing more than furnish
the condition or give rise to the occasion by which the injury
was made possible, if there intervened between such prior
or remote cause and the injury a distinct, successive,
unrelated, and efficient cause of the injury, even though
such injury would not have happened but for such condition
or occasion. If no danger existed in the condition except
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 31
because of the independent cause, such condition was not
the proximate cause. And if an independent negligent act or
defective condition sets into operation the instances which
result in injury because of the prior defective condition, such
subsequent act or condition is the proximate cause." (45 C.J.
pp. 931-932). (at p. 125)
It strains the judicial mind to allow a clear aggressor to go scot free of
criminal liability. At the very least, the records show he is guilty of inflicting
slight physical injuries. However, the petitioner's criminal liability in this
respect was wiped out by the victim's own act. After the hacking incident,
Urbano and Javier used the facilities of barangay mediators to effect a
compromise agreement where Javier forgave Urbano while Urbano defrayed
the medical expenses of Javier. This settlement of minor offenses is allowed
under the express provisions of Presidential Decree G.R. No. 1508, Section
2(3). (See also People v. Caruncho, 127 SCRA 16).
We must stress, however, that our discussion of proximate cause and remote
cause is limited to the criminal aspects of this rather unusual case. It does
not necessarily follow that the petitioner is also free of civil liability. The well-
settled doctrine is that a person, while not criminally liable, may still be civilly
liable. Thus, in the recent case of People v. Rogelio Ligon y Tria, et al. (G.R.
No. 74041, July 29, 1987), we said:
xxx xxx xxx
... While the guilt of the accused in a criminal prosecution
must be established beyond reasonable doubt, only a
preponderance of evidence is required in a civil action for
damages. (Article 29, Civil Code). The judgment of acquittal
extinguishes the civil liability of the accused only when it
includes a declaration that the facts from which the civil
liability might arise did not exist. (Padilla v. Court of Appeals,
129 SCRA 559).
The reason for the provisions of article 29 of the Civil Code,
which provides that the acquittal of the accused on the
ground that his guilt has not been proved beyond reasonable
doubt does not necessarily exempt him from civil liability for
the same act or omission, has been explained by the Code
Commission as follows:
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 32

The old rule that the acquittal of the accused in a criminal of the case calls for fuller development if the heirs of the victim are so
case also releases him from civil liability is one of the most serious minded.
flaws in the Philippine legal system. It has given use to numberless
instances of miscarriage of justice, where the acquittal was due to a WHEREFORE, the instant petition is hereby GRANTED. The questioned
reasonable doubt in the mind of the court as to the guilt of the decision of the then Intermediate Appellate Court, now Court of Appeals, is
accused. The reasoning followed is that inasmuch as the civil REVERSED and SET ASIDE. The petitioner is ACQUITTED of the crime of
responsibility is derived from the criminal offense, when the latter is homicide. Costs de oficio.
not proved, civil liability cannot be demanded.
SO ORDERED.
This is one of those causes where confused thinking leads to
unfortunate and deplorable consequences. Such reasoning fails to Fernan, (Chairman), Feliciano, Bidin and,Cortes, JJ., concur.
draw a clear line of demarcation between criminal liability and civil
responsibility, and to determine the logical result of the distinction.
The two liabilities are separate and distinct from each other. One
affects the social order and the other, private rights. One is for the
punishment or correction of the offender while the other is for
reparation of damages suffered by the aggrieved party. The two
responsibilities are so different from each other that article 1813 of
the present (Spanish) Civil Code reads thus: "There may be a
compromise upon the civil action arising from a crime; but the public
action for the imposition of the legal penalty shall not thereby be
extinguished." It is just and proper that, for the purposes of the
imprisonment of or fine upon the accused, the offense should be
proved beyond reasonable doubt. But for the purpose of indemnity
the complaining party, why should the offense also be proved
beyond reasonable doubt? Is not the invasion or violation of every
private right to be proved only by a preponderance of evidence? Is
the right of the aggrieved person any less private because the
wrongful act is also punishable by the criminal law?

"For these reasons, the Commission recommends the

adoption of the reform under discussion. It will correct a serious
defect in our law. It will close up an inexhaustible source of injustice-
a cause for disillusionment on the part of the innumerable persons
injured or wronged."

The respondent court increased the P12,000.00 indemnification imposed by

the trial court to P30,000.00. However, since the indemnification was based
solely on the finding of guilt beyond reasonable doubt in the homicide case,
the civil liability of the petitioner was not thoroughly examined. This aspect

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
FERNANDO PUGAY y BALCITA, & BENJAMIN SAMSON y
MAGDALENA, accused-appellants.
Remedial Law; Evidence; Criminal Procedure; Suppression of Evidence; The
presumption that evidence suppressed would be adverse if produced does
not apply if the evidence suppressed is merely corroborative.—Accused-
appellants next assert that the prosecution suppressed the testimonies of
other eyewitnesses to the incident. They claim that despite the fact that
there were other persons investigated by the police, only Gabion was
presented as an eyewitness during the trial of the case. They argue that the
deliberate nonpresentation of these persons raises the presumption that their
testimonies would be adverse to the prosecution. There is no dispute that
there were other persons who witnessed the commission of the crime. In
fact there appears 011 record (pp. 16-17, Records) the written statements of
one Abelardo Reyes and one Monico Alimorong alleging the same facts and
imputing the respective acts of pouring of gasoline and setting the deceased
on fire to the accused-appellants as testified to by Gabion in open court.
They were listed as prosecution witnesses in the information filed.
Considering that their testimonies would be merely corroborative, their non-
presentation does not give rise to the presumption that evidence wilfully
suppressed would be adverse if produced. This presumption does not apply
to the suppression of merely corroborative evidence (U.S. vs. Diola, 37 Phil.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 33
797). Besides, the matter as to whom to utilize as witness is for the
prosecution to decide.
Criminal Law; Murder; Conspiracy; Criminal Liability; As there was no
evidence showing previous conspiracy or unity of criminal purpose and
intention between the two accused immediately before the commission of
the crime, the criminal liability of the two accused is individual and not
collective, and each of them is liable only for the act committed by him.—
However, there is nothing in the records showing that there was previous
conspiracy or unity of criminal purpose and intention between the two
accused-appellants immediately before the commission of the crime. There
was 110 animosity between the deceased and the accused Pugay or
Samson. Their meeting at the scene of the incident was accidental. It is also
clear that the accused Pugay and his group merely wanted to make fun of
the deceased. Hence, the respective criminal responsibility of Pugay and
Samson arising from different acts directed against the deceased is individual
and not collective, and each of them is liable only for the act committed by
him (U.S. vs. Magcomot, et. al. 13, Phil 386; U.S. vs. Abiog, et. al 37 Phil
1371).
Same; Homicide Through Reckless Imprudence; Accused Pugay can only be
convicted of the crime of Homicide Through Reckless Imprudence because of
his failure to exercise all the diligence necessary to avoid every undesirable
consequence arising from any act committed by his companions.—The next
question to be determined is the criminal responsibility of the accused Pugay.
Having taken the can from under the engine of the ferris wheel and holding
it before pouring its contents on the body of the deceased, this accused
knew that the can contained gasoline. The stinging smell of this flammable
liquid could not have escaped his notice even before pouring the same.
Clearly, he failed to exercise all the diligence necessary to avoid every
undesirable consequence arising from any act that may be committed by his
companions who at the time were making fun of the deceased. We agree
with the Solicitor General that the accused is only guilty of homicide through
reckless imprudence defined in Article 365 of the Revised Penal Code, as
amended. In U.S. vs. Maleza, et. al. 14 Phil. 468, 470, this Court ruled as
follows: "A man must use common sense, and exercise due reflection in all
his acts; it is his duty to be cautious, careful, and prudent, if not from
instinct, then through fear of incurring punishment. He is responsible for
such results as anyone might foresee and for acts which no one would have
performed except through culpable abandon. Otherwise his own person,
rights and property, all those of his fellow-beings, would ever be exposed to
all manner of danger and injury."

Same; Same; Qualifying Circumstances; Treachery; There is treachery when
the attack is deliberate and the culprit employed means, methods and forms
in the execution thereof which tend to insure its execution without risk to
himself arising from the defense which the offended party might make.—
There is entire absence of proof in the record that the accused Samson had
some reason to kill the deceased before the incident. On the contrary, there
is adequate evidence showing that his act was merely a part of their fun-
making that evening. For the circumstance of treachery to exist, the attack
must be deliberate and the culprit employed means, methods, or forms in
the execution thereof which tend directly and specially to insure itsexecution,
without risk to himself arising from any defense which the offended party
might make.
Same; Criminal Liability; Mitigating Circumstances; Even assuming that
accused Samson merely intended to burn the victims clothes, this will not
relieve him from criminal responsibility. Samson is liable for the death of the
victim although it was not his intention to kill the latter, but he shall be
credited with the mitigating circumstance of lack of intent to commit so
grave a wrong.—There can be no doubt that the accused Samson knew very
well that the liquid poured on the body of the deceased was gasoline and a
flammable substance for he would not have committed the act setting the
latter on fire if it were otherwise. Giving him the benefit of doubt, it can be
conceded that as of their fun-making he merely intended to set the
deceased's clothes on fire. His act, however, does not relieve him of criminal
responsibility. Burning the clothes of the victim would cause at the very least
some kind of physical injuries on his person, a felony defined in the Revised
Penal Code. If his act resulted into a graver offense, as what took place in
the instant case, he must be held responsible therefor. Article 4 of the
aforesaid code provides, inter alia, that criminal liability shall be incurred by
any person commiting a felony (delito) although the wrongful act done be
different from that which he intended. As no sufficient evidence appears in
the record establishing any qualifying circumstances, the accused samson is
only guilty of the crime of homicide defined and penalized in Article 249 of
the Revised Penal Code, as amended. We are disposed to credit in his favor
the ordinary mitigating circumstance of no intention to commit so grave a
wrong as that committed as there is evidence of a fact from which such
conclusion can be drawn. The eyewitnesses Gabion testified that the accused
Pugay and Samson were stunned when they noticed the deceased burning
(Tsn, June 1, 1983, pp. 16-17).
APPEAL from the judgment of the Court of First Instance of Cavite.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 34
The facts are stated in the opinion of the Court.
     The Solicitor General for plaintiff-appellee.
     Citizens Legal Assistance Office for accused-appellants.
MEDIALDEA, J.:
For the death of Bayani Miranda, a retardate, FERNANDO PUGAY y BALCITA
and BENJAMIN SAMSON y MAGDALENA were charged with the crime of
MURDER in Criminal Case No. L-175-82 of the Court of First Instance (now
Regional Trial Court) of Cavite, under an information which reads as follows:
That on or about May 19, 1982 at the town plaza of the
Municipality of Rosario, Province of Cavite, Philippines, and
within the jurisdiction of this Honorable Court, the above-
named accused, conspiring, confederating and mutually
helping and assisting one another, with treachery and
evident premeditation, taking advantage of their superior
strength, and with the decided purpose to kill, poured
gasoline, a combustible liquid to the body of Bayani Miranda
and with the use of fire did then and there, wilfully,
unlawfully and feloniously, burn the whole body of said
Bayani Miranda which caused his subsequent death, to the
damage and prejudice of the heirs of the aforenamed Bayani
Miranda.
That the crime was committed with the qualifying
circumstance of treachery and the aggravating
circumstances of evident premeditation and superior
strength, and the means employed was to weaken the
defense; that the wrong done in the commission of the
crime was deliberately augmented by causing another
wrong, that is the burning of the body of Bayani Miranda.
CONTRARY TO LAW (p. 1, Records).
Upon being arraigned, both accused pleaded not guilty to the offense
charged. After trial, the trial court rendered a decision finding both accused
guilty on the crime of murder but crediting in favor of the accused Pugay the

mitigating circumstance of lack of intention to commit so grave a wrong, the
dispositive portion of which reads as follows:
WHEREFORE, the accused Fernando Pugay y Balcita and
Benjamin Samson y Magdalena are pronounced guilty
beyond reasonable doubt as principals by direct participation
of the crime of murder for the death of Bayani Miranda, and
appreciating the aforestated mitigating circumstance in favor
of Pugay, he is sentenced to a prison term ranging from
twelve (12) years of prision mayor, as minimum, to twenty
(20) years of  reclusion temporal, as maximum, and Samson
to suffer the penalty of reclusion perpetua  together with the
accessories of the law for both of them. The accused are
solidarily held liable to indemnify the heirs of the victim in
the amount of P13,940.00 plus moral damages of
P10,000.00 and exemplary damages of P5,000.00.
Let the preventive imprisonment of Pugay be deducted from
the principal penalty.
Cost against both accused.
SO ORDERED (p. 248, Records).
Not satisfied with the decision, both accused interposed the present appeal
and assigned the following errors committed by the court a quo:
1. THE COURT A QUO ERRED IN UTILIZING THE
STATEMENTS OF ACCUSED-APPELLANTS IN ITS
APPRECIATION OF FACTS DESPITE ITS ADMISSION THAT
THE ACCUSED-APPELLANTS WERE NOT ASSISTED BY A
COUNSEL DURING THE CUSTODIAL INVESTIGATION.
2. THE COURT A QUO ERRED IN NOT FINDING THAT THE
SUPPRESSION BY THE PROSECUTION OF SOME EVIDENCE
IS FATAL TO ITS CASE.
3. THE COURT A QUO ERRED IN LENDING CREDENCE TO
THE INCREDIBLE TESTIMONY OF EDUARDO GABION WHO
WAS ONE OF THE MANY SUSPECTS ARRESTED BY THE
POLICE (Accused-appellants' Brief, p. 48, Rollo).
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 35
The antecedent facts are as follows:
The deceased Miranda, a 25-year old retardate, and the accused Pugay were
friends. Miranda used to run errands for Pugay and at times they slept
together. On the evening of May 19, 1982, a town fiesta fair was held in the
public plaza of Rosario, Cavite. There were different kinds of ride and one
was a ferris wheel.
Sometime after midnight of the same date, Eduardo Gabion was sitting in
the ferris wheel and reading a comic book with his friend Henry. Later, the
accused Pugay and Samson with several companions arrived. These persons
appeared to be drunk as they were all happy and noisy. As the group saw
the deceased walking nearby, they started making fun of him. They made
the deceased dance by tickling him with a piece of wood.
Not content with what they were doing with the deceased, the accused
Pugay suddenly took a can of gasoline from under the engine of the ferns
wheel and poured its contents on the body of the former. Gabion told Pugay
not to do so while the latter was already in the process of pouring the
gasoline. Then, the accused Samson set Miranda on fire making a human
torch out of him.
The ferris wheel operator later arrived and doused with water the burning
body of the deceased. Some people around also poured sand on the burning
body and others wrapped the same with rags to extinguish the flame.
The body of the deceased was still aflame when police officer Rolando
Silangcruz and other police officers of the Rosario Police Force arrived at the
scene of the incident. Upon inquiring as to who were responsible for the
dastardly act, the persons around spontaneously pointed to Pugay and
Samson as the authors thereof.
The deceased was later rushed to the Grace Hospital for treatment. In the
meantime, the police officers brought Gabion, the two accused and five other
persons to the Rosario municipal building for interrogation. Police officer
Reynaldo Canlas took the written statements of Gabion and the two accused,
after which Gabion was released. The two accused remained in custody.
After a careful review of the records, We find the grounds relied upon by the
accused-appellants for the reversal of the decision of the court a quo to be
without merit.

It bears emphasis that barely a few hours after the incident, accused-
appellants gave their written statements to the police. The accused Pugay
admitted in his statement, Exhibit F, that he poured a can of gasoline on the
deceased believing that the contents thereof was water and then the
accused Samson set the deceased on fire. The accused Samson, on the
other hand, alleged in his statement that he saw Pugay pour gasoline on
Miranda but did not see the person who set him on fire. Worthy of note is
the fact that both statements did not impute any participation of eyewitness
Gabion in the commission of the offense.
While testifying on their defense, the accused-appellants repudiated their
written statements alleging that they were extracted by force. They claimed
that the police maltreated them into admitting authorship of the crime. They
also engaged in a concerted effort to lay the blame on Gabion for the
commission of the offense.
Thus, while it is true that the written statements of the accused-appellants
were mentioned and discussed in the decision of the court a quo, the
contents thereof were not utilized as the sole basis for the findings of facts in
the decision rendered. The said court categorically stated that "even without
Exhibits 'F' and 'G', there is still Gabion's straightforward, positive and
convincing testimony which remains unaffected by the uncorroborated, self-
serving and unrealiable testimonies of Pugay and Samson" (p. 247, Records).
Accused-appellants next assert that the prosecution suppressed the
testimonies of other eyewitnesses to the incident. They claim that despite
the fact that there were other persons investigated by the police, only
Gabion was presented as an eyewitness during the trial of the case. They
argue that the deliberate non- presentation of these persons raises the
presumption that their testimonies would be adverse to the prosecution.
There is no dispute that there were other persons who witnessed the
commission of the crime. In fact there appears on record (pp. 16-
17, Records) the written statements of one Abelardo Reyes and one Monico
Alimorong alleging the same facts and imputing the respective acts of
pouring of gasoline and setting the deceased on fire to the accused-
appellants as testified to by Gabion in open court. They were listed as
prosecution witnesses in the information filed. Considering that their
testimonies would be merely corroborative, their non-presentation does not
give rise to the presumption that evidence wilfully suppressed would be
adverse if produced. This presumption does not apply to the suppression of
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 36
merely corroborative evidence (U.S. vs. Dinola, 37 Phil. 797).<äre||
anº•1àw>  Besides, the matter as to whom to utilize as witness is for the
prosecution to decide.
Accused-appellants also attack the credibility of the eyewitness Gabion
alleging that not only was the latter requested by the mother of the
deceased to testify for the prosecution in exchange for his absolution from
liability but also because his testimony that he was reading a comic book
during an unusual event is contrary to human behavior and experience.
Gabion testified that it was his uncle and not the mother of the deceased
who asked him to testify and state the truth about the incident. The mother
of the deceased likewise testified that she never talked to Gabion and that
she saw the latter for the first time when the instant case was tried. Besides,
the accused Pugay admitted that Gabion was his friend and both Pugay and
the other accused Samson testified that they had no previous
misunderstanding with Gabion. Clearly, Gabion had no reason to testify
falsely against them.
In support of their claim that the testimony of Gabion to the effect that he
saw Pugay pour gasoline on the deceased and then Samson set him on fire
is incredible, the accused-appellants quote Gabion's testimony on cross-
examination that, after telling Pugay not to pour gasoline on the deceased,
he (Gabion) resumed reading comics; and that it was only when the victim's
body was on fire that he noticed a commotion.
However, explaining this testimony on re-direct examination, Gabion stated:
Q. Mr. Gabion, you told the Court on cross-examination that you were
reading comics when you saw Pugay poured gasoline unto Bayani Miranda
and lighted by Samson. How could you possibly see that incident while you
were reading comics?
A. I put down the comics which I am reading and I saw what they were
doing.
Q. According to you also before Bayani was poured with gasoline and lighted
and burned later you had a talk with Pugay, is that correct?
A. When he was pouring gasoline on Bayani Miranda I was trying to prevent
him from doing so.

Q. We want to clarify. According to you a while ago you had a talk with
Pugay and as a matter of fact, you told him not to pour gasoline. That is
what I want to know from you, if that is true?
A. Yes, sir.
Q. Aside from Bayani being tickled with a stick on his ass, do you mean to
say you come to know that Pugay will pour gasoline unto him?
A. I do not know that would be that incident.
Q. Why did you as(k) Pugay in the first place not to pour gasoline before he
did that actually?
A. Because I pity Bayani, sir.
Q. When you saw Pugay tickling Bayani with a stick on his ass you tried
according to you to ask him not to and then later you said you asked not to
pour gasoline. Did Pugay tell you he was going to pour gasoline on Bayani?
A. I was not told, sir.
Q. Did you come to know..... how did you come to know he was going to
pour gasoline that is why you prevent him?
A. Because he was holding on a container of gasoline. I thought it was water
but it was gasoline.
Q. It is clear that while Pugay was tickling Bayani with a stick on his ass, he
later got hold of a can of gasoline, is that correct?
A. Yes, sir.
Q. And when he pick up the can of gasoline, was that the time you told him
not to pour gasoline when he merely pick up the can of gasoline.
A. I saw him pouring the gasoline on the body of Joe.
Q. So, it is clear when you told Pugay not to pour gasoline he was already in
the process of pouring gasoline on the body of Bayani?
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 37
A. Yes, sir (Tsn, July 30, 1983, pp. 32-33).
It is thus clear that prior to the incident in question, Gabion was reading a
comic book; that Gabion stopped reading when the group of Pugay started
to make fun of the deceased; that Gabion saw Pugay get the can of gasoline
from under the engine of the ferris wheel; that it was while Pugay was in the
process of pouring the gasoline on the body of the deceased when Gabion
warned him not to do so; and that Gabion later saw Samson set the
deceased on fire.
However, there is nothing in the records showing that there was previous
conspiracy or unity of criminal purpose and intention between the two
accused-appellants immediately before the commission of the crime. There
was no animosity between the deceased and the accused Pugay or Samson.
Their meeting at the scene of the incident was accidental. It is also clear that
the accused Pugay and his group merely wanted to make fun of the
deceased. Hence, the respective criminal responsibility of Pugay and Samson
arising from different acts directed against the deceased is individual and not
collective, and each of them is liable only for the act committed by him (U.S.
vs. Magcomot, et. al. 13, Phil. 386; U.S. vs. Abiog, et. al. 37 Phil. 1371).
The next question to be determined is the criminal responsibility of the
accused Pugay. Having taken the can from under the engine of the ferris
wheel and holding it before pouring its contents on the body of the
deceased, this accused knew that the can contained gasoline. The stinging
smell of this flammable liquid could not have escaped his notice even before
pouring the same. Clearly, he failed to exercise all the diligence necessary to
avoid every undesirable consequence arising from any act that may be
committed by his companions who at the time were making fun of the
deceased. We agree with the Solicitor General that the accused is only guilty
of homicide through reckless imprudence defined in Article 365 of the
Revised Penal Code, as amended. In U.S. vs. Maleza, et. al. 14 Phil. 468,
470, this Court ruled as follows:
A man must use common sense and exercise due reflection
in all his acts; it is his duty to be cautious, careful, and
prudent, if not from instinct, then through fear of incurring
punishment. He is responsible for such results as anyone
might foresee and for acts which no one would have
performed except through culpable abandon. Otherwise his
own person, rights and property, all those of his fellow-
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 38

beings, would ever be exposed to all manner of danger and evidence of a fact from which such conclusion can be drawn. The eyewitness
injury. Gabion testified that the accused Pugay and Samson were stunned when
they noticed the deceased burning (Tsn, June 1, 1983, pp. 16-17). <äre||
The proper penalty that the accused Pugay must suffer is an indeterminate anº•1àw>
one ranging from four (4) months of arresto mayor, as minimum, to four (4)
years and two (2) months of prision correccional, as maximum. With respect The proper penalty that the accused Samson must suffer is an indeterminate
to the accused Samson, the Solicitor General in his brief contends that "his one ranging from eight (8) years of prision mayor, as minimum, to fourteen
conviction of murder, is proper considering that his act in setting the (14) years of reclusion temporal, as maximum.
deceased on fire knowing that gasoline had just been poured on him is
characterized by treachery as the victim was left completely helpless to The lower court held the accused solidarily liable for P13,940.00, the amount
defend and protect himself against such an outrage" (p. 57, Rollo). We do spent by Miranda's parents for his hospitalization, wake and interment. The
not agree. indemnity for death is P30,000.00. Hence, the indemnity to the heirs of the
deceased Miranda is increased to P43,940.00.
There is entire absence of proof in the record that the accused Samson had
some reason to kill the deceased before the incident. On the contrary, there Both accused shall be jointly and severally liable for the aforesaid amount
is adequate evidence showing that his act was merely a part of their fun- plus the P10,000.00 as moral damages and P5,000.00 as exemplary
making that evening. For the circumstance of treachery to exist, the attack damages as found by the court a quo.
must be deliberate and the culprit employed means, methods, or forms in
the execution thereof which tend directly and specially to insure its Accordingly, the judgment is affirmed with the modifications above-indicated.
execution, without risk to himself arising from any defense which the Costs against the accused-appellants.
offended party might make.
SO ORDERED.
There can be no doubt that the accused Samson knew very well that the
liquid poured on the body of the deceased was gasoline and a flammable
Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur.
substance for he would not have committed the act of setting the latter on
fire if it were otherwise. Giving him the benefit of doubt, it call be conceded
that as part of their fun-making he merely intended to set the deceased's
clothes on fire. His act, however, does not relieve him of criminal
responsibility. Burning the clothes of the victim would cause at the very least
some kind of physical injuries on his person, a felony defined in the Revised
Penal Code. If his act resulted into a graver offense, as what took place in
the instant case, he must be held responsible therefor. Article 4 of the
aforesaid code provides, inter alia, that criminal liability shall be incurred by
any person committing a felony (delito) although the wrongful act done be
different from that which he intended.

As no sufficient evidence appears in the record establishing any qualifying

circumstances, the accused Samson is only guilty of the crime of homicide
defined and penalized in Article 249 of the Revised Penal Code, as amended.
We are disposed to credit in his favor the ordinary mitigating circumstance of
no intention to commit so grave a wrong as that committed as there is

G.R. No. 103119. October 21, 1992.*
SULPICIO INTOD, petitioner, vs. HONORABLE COURT OF APPEALS
AND PEOPLE OF THE PHILIPPINES, respondents.
Criminal Law; Impossible crime; To be impossible, the act intended by the
offender must be by its nature one impossible of accomplishment.–—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.
Same; Same; Same; Legal impossibility occurs where the intended acts even
if completed, would not amount to a crime.––Legal impossibility occurs
where the intended acts, even if completed, would not amount to a crime.
Thus: Legal impossibility would apply to those circumstances where (1) the
motive, desire and expectation is to perform an act in violation of the law;
(2) there is intention to perform the physical act; (3) there is a performance
of the intended physical act; and (4) the consequence resulting from the
intended act does not amount to a crime.
Same; Same; Same; Factual impossibility occurs when extraneous
circumstances unknown to the actor or beyond his control prevent the
consummation of the intended crime.–—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. One
example is the man who puts his hand in the coat pocket of another with the
intention to steal the latter’s wallet and finds the pocket empty.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 39
Same; Same; There is a difference between the Philippine and the American
laws regarding the concept and appreciation of impossible crimes.–—The
aforecited cases are the same cases which have been relied upon by
Respondent to make this Court sustain the judgment of attempted murder
against Petitioner. However, we cannot rely upon these decisions to resolve
the issue at hand. There is a difference between the Philippine and the
American laws regarding the concept and appreciation of impossible crimes.
Same; Same; Same; In the Philippines, the Revised Penal Code, in Article
4(2) expressly provided for impossible crimes and made them punishable.–—
In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided
for impossible crimes and made them punishable. Whereas, in the United
States, the Code of Crimes and Criminal Procedure is silent regarding this
matter. What it provided for were attempts of the crimes enumerated in the
said Code. Furthermore, in said jurisdiction, the impossibility of committing
the offense is merely a defense to an attempt charge. In this regard,
commentators and the cases generally divide the impossibility defense into
two categories: legal versus factual impossibility.
Same; Same; Same; In American law, there is no such thing as an
impossible crime.–—To restate, in the United States, where the offense
sought to be committed is factually impossible of accomplishment, the
offender cannot escape criminal liability. He can be convicted of an attempt
to commit the substantive crime where the elements of attempt are satisfied.
It appears, therefore, that the act is penalized, not as an impossible crime,
but as an attempt to commit a crime. On the other hand, where the offense
is legally impossible of accomplishment, the actor cannot be held liable for
any crime–—neither for an attempt nor for an impossible crime. The only
reason for this is that in American law, there is no such thing as an
impossible crime. Instead, it only recognizes impossibility as a defense to a
crime charge–—that is, attempt.
Same; Same; Same; In our jurisdiction, impossible crimes are recognized.–—
This is not true in the Philippines. In our jurisdiction, impossible crimes are
recognized. The impossibility of accomplishing the criminal intent is not
merely a defense, but an act penalized by itself. Furthermore, the phrase
“inherent impossibility” that is found in Article 4(2) of the Revised Penal Code
makes no distinction between factual or physical impossibility and legal
impossibility. Ubi lex non distinguit nec nos distinguiere debemos.

Same; Same; Same; Factual impossibility of the commission of the crime is
not a defense.–—x x x Factual impossibility of the commission of the crime is
not a defense. If the crime could have been committed had the
circumstances been as the defendant believed them to be, it is no defense
that in reality the crime was impossible of commission.
Same; Same; Same; Legal impossibility is a defense which can be invoked to
avoid criminal liability for an attempt.–—Legal impossibility, on the other
hand, is a defense which can be invoked to avoid criminal liability for an
attempt.
Same; Same; The factual situation in the case at bar presents a physical
impossibility which rendered the intended crime impossible of
accomplishment.–—The factual situation in the case at bar presents a
physical impossibility which rendered the intended crime impossible of
accomplishment. And under Article 4, paragraph 2 of the Revised Penal
Code, such is sufficient to make the act an impossible crime.
PETITION for review of the decision of the Court of Appeals. Purisima, J.
The facts are stated in the opinion of the Court.
Public Attorney’s Office for petitioner. Intod vs. Court of Appeals, 215 SCRA
52, G.R. No. 103119 October 21, 1992
CAMPOS, JR., J.:
Petitioner, Sulpicio Intod, filed this petition for review of the decision of the
Court of Appeals 1 affirming in toto the judgment of the Regional Trial Court,
Branch XIV, Oroquieta City, finding him guilty of the crime of attempted
murder.
From the records, we gathered the following facts.
In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos
Tubio and Avelino Daligdig went to Salvador Mandaya's house in Katugasan,
Lopez Jaena, Misamis Occidental and asked him to go with them to the
house of Bernardina Palangpangan. Thereafter, Mandaya and Intod,
Pangasian, Tubio and Daligdig had a meeting with Aniceto Dumalagan. He
told Mandaya that he wanted Palangpangan to be killed because of a land
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 40
dispute between them and that Mandaya should accompany the four (4)
men, otherwise, he would also be killed.
At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya,
Pangasian, Tubio and Daligdig, all armed with firearms, arrived at
Palangpangan's house in Katugasan, Lopez Jaena, Misamis Occidental. At the
instance of his companions, Mandaya pointed the location of Palangpangan's
bedroom. Thereafter, Petitioner, Pangasian, Tubio and Daligdig fired at said
room. It turned out, however, that Palangpangan was in another City and
her home was then occupied by her son-in-law and his family. No one was in
the room when the accused fired the shots. No one was hit by the gun fire.
Petitioner and his companions were positively identified by witnesses. One
witness testified that before the five men left the premises, they shouted:
"We will kill you (the witness) and especially Bernardina Palangpangan and
we will come back if (sic) you were not injured". 2
After trial, the Regional Trial Court convicted Intod of attempted murder. The
court (RTC), as affirmed by the Court of Appeals, holding that Petitioner was
guilty of attempted murder. Petitioner seeks from this Court a modification of
the judgment by holding him liable only for an impossible crime, citingArticle
4(2) of the Revised Penal Code which provides:
Art. 4(2). CRIMINAL RESPONSIBILITY. — Criminal
Responsibility shall be incurred:
xxx xxx xxx
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 or ineffectual means.
Petitioner contends that, Palangpangan's absence from her room on
the night he and his companions riddled it with bullets made the
crime inherently impossible.
On the other hand, Respondent People of the Philippines argues that the
crime was not impossible. Instead, the facts were sufficient to constitute an
attempt and to convict Intod for attempted murder. Respondent alleged that

there was intent. Further, in its Comment to the Petition, respondent pointed
out that:
. . . The crime of murder was not consummated, not
because of the inherent impossibility of its accomplishment
(Art. 4(2), Revised Penal Code), but due to a cause or
accident other than petitioner's and his accused's own
spontaneous desistance (Art. 3., Ibid.) Palangpangan did not
sleep at her house at that time. Had it not been for this fact,
the crime is possible, not impossible. 3
Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This
seeks to remedy the void in the Old Penal Code where:
. . . it was necessary that the execution of the act has been
commenced, that the person conceiving the idea should
have set about doing the deed, employing appropriate
means in order that his intent might become a reality, and
finally, that the result or end contemplated shall have been
physically possible. So long as these conditions were not
present, the law and the courts did not hold him criminally
liable. 5
This legal doctrine left social interests entirely unprotected. 6 The Revised
Penal Code, inspired by the Positivist School, recognizes in the offender his
formidability, 7 and now penalizes an act which were it not aimed at
something quite impossible or carried out with means which prove
inadequate, would constitute a felony against person or against
property. 8 The rationale of Article 4(2) is to punish such criminal
tendencies. 9
Under this article, the act performed by the offender cannot produce an
offense against person 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. 10
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. 11 There must be either
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 41
impossibility of accomplishing the intended act 12 in order to qualify the act
an impossible crime.
Legal impossibility occurs where the intended acts, even if completed, would
not amount to a crime. 13 Thus:
Legal impossibility would apply to those circumstances
where (1) the motive, desire and expectation is to perform
an act in violation of the law; (2) there is intention to
perform the physical act; (3) there is a performance of the
intended physical act; and (4) the consequence resulting
from the intended act does not amount to a crime. 14
The impossibility of killing a person already dead 15 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. 16 One example is the man who puts
his hand in the coat pocket of another with the intention to steal the latter's
wallet and finds the pocket empty. 17
The case at bar belongs to this category. Petitioner shoots the place where
he thought his victim would be, although in reality, the victim was not
present in said place and thus, the petitioner failed to accomplish his end.
One American case had facts almost exactly the same as this one. In People
vs.  Lee Kong, 18 the accused, with intent to kill, aimed and fired at the spot
where he thought the police officer would be. It turned out, however, that
the latter was in a different place. The accused failed to hit him and to
achieve his intent. The Court convicted the accused of an attempt to kill. It
held that:
The fact that the officer was not at the spot where the
attacking party imagined where he was, and where the
bullet pierced the roof, renders it no less an attempt to kill.
It is well settled principle of criminal law in this country that
where the criminal result of an attempt is not accomplished
simply because of an obstruction in the way of the thing to
be operated upon, and these facts are unknown to the
aggressor at the time, the criminal attempt is committed.

In the case of Strokes vs. State, 19 where the accused failed to accomplish
his intent to kill the victim because the latter did not pass by the place where
he was lying-in wait, the court held him liable for attempted murder. The
court explained that:
It was no fault of Strokes that the crime was not committed.
. . . It only became impossible by reason of the extraneous
circumstance that Lane did not go that way; and further,
that he was arrested and prevented from committing the
murder. This rule of the law has application only where it is
inherently impossible to commit the crime. It has no
application to a case where it becomes impossible for the
crime to be committed, either by outside interference or
because of miscalculation as to a supposed opportunity to
commit the crime which fails to materialize; in short it has
no application to the case when the impossibility grows out
of extraneous acts not within the control of the party.
In the case of Clark vs. State, 20 the court held defendant liable for
attempted robbery even if there was nothing to rob. In disposing of the case,
the court quoted Mr. Justice Bishop, to wit:
It being an accepted truth that defendant deserves
punishment by reason of his criminal intent, no one can
seriously doubt that the protection of the public requires the
punishment to be administered, equally whether in the
unseen depths of the pocket, etc., what was supposed to
exist was really present or not. The community suffers from
the mere alarm of crime. Again: Where the thing intended
(attempted) as a crime and what is done is a sort to create
alarm, in other words, excite apprehension that the evil;
intention will be carried out, the incipient act which the law
of attempt takes cognizance of is in reason committed.
In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of
victim's room thinking that the latter was inside. However, at that moment,
the victim was in another part of the house. The court convicted the accused
of attempted murder.
The aforecited cases are the same cases which have been relied upon by
Respondent to make this Court sustain the judgment of attempted murder
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 42
against Petitioner. However, we cannot rely upon these decisions to resolve
the issue at hand. There is a difference between the Philippine and the
American laws regarding the concept and appreciation of impossible crimes.
In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided
for impossible crimes and made the punishable. Whereas, in the United
States, the Code of Crimes and Criminal Procedure is silent regarding this
matter. What it provided for were attempts of the crimes enumerated in the
said Code. Furthermore, in said jurisdiction, the impossibility of committing
the offense is merely a defense to an attempt charge. In this regard,
commentators and the cases generally divide the impossibility defense into
two categories: legal versus factual impossibility. 22 In U.S.
vs.  Wilson 23 the Court held that:
. . . factual impossibility of the commission of the crime is
not a defense. If the crime could have been committed had
the circumstances been as the defendant believed them to
be, it is no defense that in reality the crime was impossible
of commission.
Legal impossibility, on the other hand, is a defense which can be invoked to
avoid criminal liability for an attempt. In U.S. vs. Berrigan, 24 the accused
was indicated for attempting to smuggle letters into and out of prison. The
law governing the matter made the act criminal if done without knowledge
and consent of the warden. In this case, the offender intended to send a
letter without the latter's knowledge and consent and the act was performed.
However, unknown to him, the transmittal was achieved with the warden's
knowledge and consent. The lower court held the accused liable for attempt
but the appellate court reversed. It held unacceptable the contention of the
state that "elimination of impossibility as a defense to a charge of criminal
attempt, as suggested by the Model Penal Code and the proposed federal
legislation, is consistent with the overwhelming modern view". In disposing
of this contention, the Court held that the federal statutes did not contain
such provision, and thus, following the principle of legality, no person could
be criminally liable for an act which was not made criminal by law. Further, it
said:
Congress has not yet enacted a law that provides that intent
plus act plus conduct constitutes the offense of attempt
irrespective of legal impossibility until such time as such
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 43

legislative changes in the law take place, this court will not and degree of criminality shown by Petitioner, this Court sentences him to
fashion a new non-statutory law of criminal attempt. suffer the penalty of six (6) months of arresto mayor, together with the
accessory penalties provided by the law, and to pay the costs.
To restate, in the United States, where the offense sought to be committed
is factually impossible or accomplishment, the offender cannot escape SO ORDERED.
criminal liability. He can be convicted of an attempt to commit the
substantive crime where the elements of attempt are satisfied. It appears, Feliciano, Regalado and Nocon, JJ., concur.
therefore, that the act is penalized, not as an impossible crime, but as an
attempt to commit a crime. On the other hand, where the offense is legally Narvasa, C.J., is on leave.
impossible of accomplishment, the actor cannot be held liable for any crime
— neither for an attempt not for an impossible crime. The only reason for
this is that in American law, there is no such thing as an impossible crime.
Instead, it only recognizes impossibility as a defense to a crime charge —
that is, attempt.

This is not true in the Philippines. In our jurisdiction, impossible crimes are
recognized. The impossibility of accomplishing the criminal intent is not
merely a defense, but an act penalized by itself. Furthermore, the phrase
"inherent impossibility" that is found in Article 4(2) of the Revised Penal Code
makes no distinction between factual or physical impossibility and legal
impossibility. Ubi lex non distinguit nec nos distinguere debemos .

The factual situation in the case at bar present a physical impossibility which
rendered the intended crime impossible of accomplishment. And under
Article 4, paragraph 2 of the Revised Penal Code, such is sufficient to make
the act an impossible crime.

To uphold the contention of respondent that the offense was Attempted

Murder because the absence of Palangpangan was a supervening cause
independent of the actor's will, will render useless the provision in Article 4,
which makes a person criminally liable for an act "which would be an offense
against persons or property, were it not for the inherent impossibility of its
accomplishment . . ." In that case all circumstances which prevented the
consummation of the offense will be treated as an accident independent of
the actor's will which is an element of attempted and frustrated felonies.

WHEREFORE, PREMISES CONSIDERED. the petition is hereby GRANTED, the

decision of respondent Court of Appeals holding Petitioner guilty of
Attempted Murder is hereby MODIFIED. We hereby hold Petitioner guilty of
an impossible crime as defined and penalized in Articles 4, paragraph 2, and
59 of the Revised Penal Code, respectively. Having in mind the social danger

G.R. No. 152133. February 9, 2006.*
ROLLIE CALIMUTAN, petitioner, vs. PEOPLE OF THE PHILIPPINES,
ET AL., respondents.
Criminal Law; Presumption of Innocence; Proof Beyond Reasonable
Doubt; Words and Phrases; Proof beyond reasonable doubt requires only
a moral certainty or that degree of proof which produces conviction in an
unprejudiced mind—it does not require absolute certainty and exclusion of all
possibility of error.—In this jurisdiction, an accused in a criminal case may
only be convicted if his or her guilt is established by proof beyond reasonable
doubt. Proof beyond reasonable doubt requires only a moral certainty or that
degree of proof which produces conviction in an unprejudiced mind; it does
not demand absolute certainty and the exclusion of all possibility of error. In
the Petition at bar, this Court finds that there is proof beyond reasonable
doubt to hold petitioner Calimutan liable for the death of the victim Cantre.
Same; Homicide; Evidence; Witnesses; Expert Witnesses; Having
testified on matters undeniably within the area of his expertise, and having
performed a thorough autopsy on the body of the victim, an expert’s findings
as to the cause of death of the victim are more than just speculations of an
ordinary person.—It bears to emphasize that Dr. Mendez was presented by
the prosecution as an expert witness, whose “competency and academic
qualification and back-ground” was admitted by the defense itself. As a
Senior Medico-Legal Officer of the NBI, Dr. Mendez is presumed to possess
sufficient knowledge of pathology, surgery, gynecology, toxicology, and such
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 44
other branches of medicine germane to the issues involved in a case. Dr.
Mendez’s testimony as an expert witness is evidence, and although it does
not necessarily bind the courts, both the RTC and the Court of Appeals had
properly accorded it great weight and probative value. Having testified as to
matters undeniably within his area of expertise, and having performed a
thorough autopsy on the body of the victim Cantre, his findings as to the
cause of death of the victim Cantre are more than just the mere speculations
of an ordinary person. They may sufficiently establish the causal relationship
between the stone thrown by the petitioner Calimutan and the lacerated
spleen of the victim Cantre which, subsequently, resulted in the latter’s
death. With no apparent mistake or irregularity, whether in the manner by
which Dr. Mendez performed the autopsy on the body of the victim Cantre or
in his findings, then his report and testimony must be seriously considered
by this Court. Moreover, reference to other resource materials on abdominal
injuries would also support the conclusion of Dr. Mendez that the stone
thrown by petitioner Calimutan caused the death of the victim Cantre.
Same; Same; Same; Same; Same; Contrary to common perception, the
abdominal area is more than just the waist area; The entire abdominal area
is divided into different triangles, and the spleen is located in the upper
triangle, bounded by the rib cage.—There are some terms in the above-
quoted paragraphs difficult to comprehend for people without medical
backgrounds. Nevertheless, there are some points that can be plainly derived
therefrom: (1) Contrary to common perception, the abdominal area is more
than just the waist area. The entire abdominal area is divided into different
triangles, and the spleen is located in the upper triangle, bounded by the rib
cage; (2) The spleen and all internal organs in the same triangle are
vulnerable to trauma from all directions. Therefore, the stone need not hit
the victim Cantre from the front. Even impact from a stone hitting the back
of the victim Cantre, in the area of the aforementioned triangle, could
rupture the spleen; and (3) Although the spleen had already been ruptured
or lacerated, there may not always be a perceptible external injury to the
victim. Injury to the spleen cannot, at all times, be attributed to an obvious,
external injury such as a cut or bruise. The laceration of the victim Cantre’s
spleen can be caused by a stone thrown hard enough, which qualifies as a
nonpenetrating trauma.
Same; Same; Same; Proximate Cause; Words and Phrases; Proximate
cause has been defined as “that cause, which in the natural and continuous
sequence, unbroken by any efficient intervening cause, produces the injury,
and without which the result would not have occurred.”—The prosecution
was able to establish that the proximate cause of the death of the victim

Cantre was the stone thrown at him by petitioner Calimutan. Proximate
cause has been defined as “that cause, which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces the injury,
and without which the result would not have occurred.”
Same; Same; Same; Witnesses; Disputable Presumptions;
Suppression of Evidence; Non-presentation of corroborative witnesses
whose testimony would be merely corroborative would not constitute
suppression of evidence and would not be fatal to the prosecution’s case;
The adverse presumption from the suppression of evidence is not applicable
when (1) the suppression is not willful, (2) the evidence suppressed or
withheld is merely corroborative or cumulative, (3) the evidence is at the
disposal of both parties, and (4) the suppression is an exercise of a privilege.
—That the prosecution no longer presented Dr. Ulanday before the RTC
despite being included in its list of witnesses did not amount to a willful
suppression of evidence that would give rise to the presumption that her
testimony would be adverse to the prosecution if produced. As this Court
already expounded in the case of People v. Jumamoy—The prosecution’s
failure to present the other witnesses listed in the information did not
constitute, contrary to the contention of the accused, suppression of
evidence. The prosecutor has the exclusive prerogative to determine the
witnesses to be presented for the prosecution. If the prosecution has several
eyewitnesses, as in the instant case, the prosecutor need not present all of
them but only as many as may be needed to meet the quantum of proof
necessary to establish the guilt of the accused beyond reasonable doubt. The
testimonies of the other witnesses may, therefore, be dispensed with for
being merely corroborative in nature. This Court has ruled that the non-
presentation of corroborative witnesses would not constitute suppression of
evidence and would not be fatal to the prosecution’s case. Besides, there is
no showing that the eyewitnesses who were not presented in court as
witnesses were not available to the accused. We reiterate the rule that the
adverse presumption from a suppression of evidence is not applicable when
(1) the suppression is not willful; (2) the evidence suppressed or withheld is
merely corroborative or cumulative; (3) the evidence is at the disposal of
both parties; and (4) the suppression is an exercise of a privilege. Moreover,
if the accused believed that the failure to present the other witnesses was
because their testimonies would be unfavorable to the prosecution, he
should have compelled their appearance, by compulsory process, to testify
as his own witnesses or even as hostile witnesses.
Same; Same; Reckless Imprudence Resulting in Homicide;
Intentional Felonies; Culpable Felonies; Words and Phrases; In
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 45
intentional felonies, the act or omission of the offender is malicious—in
performing the act or incurring the omission, the offender has intention to
cause the injury to another; In culpable felonies, the act or omission of the
offender is not malicious—the injury caused by the offender to another
person is “unintentional,” it being simply the incident of another act
performed without malice.—Article 3 of the Revised Penal Code classifies
felonies according to the means by which they are committed, in particular:
(1) intentional felonies, and (2) culpable felonies. These two types of felonies
are distinguished from each other by the existence or absence of malicious
intent of the offender—In intentional felonies, the act or omission of the
offender is malicious. In the language of Art. 3, the act is performed with
deliberate intent (with malice). The offender, in performing the act or in
incurring the omission, has the intention to cause an injury to another. In
culpable felonies, the act or omission of the offender is not malicious. The
injury caused by the offender to another person is “unintentional, it being
simply the incident of another act performed without malice.” (People vs.
Sara, 55 Phil. 939) As stated in Art. 3, the wrongful act results from
imprudence, negligence, lack of foresight or lack of skill. In the Petition at
bar, this Court cannot, in good conscience, attribute to petitioner Calimutan
any malicious intent to injure, much less to kill, the victim Cantre; and in the
absence of such intent, this Court cannot sustain the conviction of
petitioner Calimutan for the intentional crime of homicide, as
rendered by the RTC and affirmed by the Court of Appeals. Instead,
this Court finds petitioner Calimutan guilty beyond reasonable
doubt of the culpable felony of reckless imprudence resulting in
homicide under Article 365 of the Revised Penal Code.
Same; Same; Same; Same; Same; Words and Phrases; Reckless
imprudence consists in voluntarily, but without malice, doing or failing to do
an act from which material damage results by reason of inexcusable lack of
precaution on the part of the person performing or failing to perform such
act.—Article 365 of the Revised Penal Code expressly provides for the
definition of reckless imprudence—Reckless imprudence consists in
voluntarily, but without malice, doing or failing to do an act from which
material damage results by reason of inexcusable lack of precaution on the
part of the person performing or failing to perform such act, taking into
consideration his employment or occupation, degree of intelligence, physical
condition and other circumstances regarding persons, time and place. There
are several circumstances, discussed in the succeeding paragraphs, that
demonstrate petitioner Calimutan’s lack of intent to kill the victim Cantre,
and conversely, that substantiate the view of this Court that the death of
victim Cantre was a result of petitioner Calimutan’s reckless imprudence. The

RTC and the Court of Appeals may have failed to appreciate, or had
completely overlooked, the significance of such circumstances.
Same; Same; Same; Same; Same; Damages; Since it is irrefragable that
the stone thrown by the accused at the victim was the proximate cause of
the latter’s death, despite being done with reckless imprudence rather than
malicious intent, he remains civilly liable for such death.—Granting that
petitioner Calimutan was impelled by a lawful objective when he threw the
stone at the victim Cantre, his act was committed with inexcusable lack of
precaution. He failed to consider that a stone the size of a man’s fist could
inflict substantial injury on someone. He also miscalculated his own strength,
perhaps unaware, or even completely disbelieving, that he could throw a
stone with such force as to seriously injure, or worse, kill someone, at a
quite lengthy distance of ten meters. Since it is irrefragable that the stone
thrown by petitioner Calimutan at the victim Cantre was the proximate cause
of the latter’s death, despite being done with reckless imprudence rather
than with malicious intent, petitioner Calimutan remains civilly liable for such
death. This Court, therefore, retains the reward made by the RTC and the
Court of Appeals to the heirs of the victim Cantre of the amount of
P50,000.00 as civil indemnity for his death and another P50,000.00 as moral
damages.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Rosalito B. Apoya for petitioner.
 The Solicitor General for the People.
CHICO-NAZARIO, J.:
In this Petition for Review on Certiorari under Rule 45 of the Revised Rules of
Court, petitioner Rollie Calimutan prays for the reversal of the Decision of the
Court of Appeals in CA-G.R. CR No. 23306, dated 29 August 2001,1affirming
the Decision of the Regional Trial Court (RTC), Branch 46, of Masbate,
Masbate, in Criminal Case No. 8184, dated 19 November 1998,2 finding
petitioner Calimutan guilty beyond reasonable doubt of the crime of homicide
under Article 249 of the Revised Penal Code.
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The Information3 filed with the RTC charged petitioner Calimutan with the
crime of homicide, allegedly committed as follows –
That on or about February 4, 1996, in the morning thereof, at sitio Capsay,
Barangay Panique, Municipality of Aroroy, Province of Masbate, Philippines
within the jurisdiction of this Honorable Court, the above-named accused
with intent to kill, did then and there willfully, unlawfully and feloniously
attack, assault and throw a stone at PHILIP CANTRE, hitting him at the back
left portion of his body, resulting in laceration of spleen due to impact which
caused his death a day after.
CONTRARY TO LAW.
Masbate, Masbate, September 11, 1996.
Accordingly, the RTC issued, on 02 December 1996, a warrant 4 for the arrest
of petitioner Calimutan. On 09 January 1997, however, he was provisionally
released5 after posting sufficient bailbond.6 During the arraignment on 21
May 1997, petitioner Calimutan pleaded not guilty to the crime of homicide
charged against him.7
In the course of the trial, the prosecution presented three witnesses,
namely: (1) Dr. Ronaldo B. Mendez, a Senior Medico-Legal Officer of the
National Bureau of Investigation (NBI); (2) Belen B. Cantre, mother of the
victim, Philip Cantre; and (3) Rene L. Sañano, companion of the victim
Cantre when the alleged crime took place. Their testimonies are collectively
summarized below.
On 04 February 1996, at around 10:00 a.m., the victim Cantre and witness
Sañano, together with two other companions, had a drinking spree at a
videoke bar in Crossing Capsay, Panique, Aroroy, Masbate. From the videoke
bar, the victim Cantre and witness Sañano proceeded to go home to their
respective houses, but along the way, they crossed paths with petitioner
Calimutan and a certain Michael Bulalacao. Victim Cantre was harboring a
grudge against Bulalacao, suspecting the latter as the culprit responsible for
throwing stones at the Cantre’s house on a previous night. Thus, upon
seeing Bulalacao, victim Cantre suddenly punched him. While Bulalacao ran
away, petitioner Calimutan dashed towards the backs of victim Cantre and
witness Sañano. Petitioner Calimutan then picked up a stone, as big as a
man’s fist, which he threw at victim Cantre, hitting him at the left side of his
back. When hit by the stone, victim Cantre stopped for a moment and held

his back. Witness Sañano put himself between the victim Cantre and
petitioner Calimutan, and attempted to pacify the two, even convincing
petitioner Calimutan to put down another stone he was already holding. He
also urged victim Cantre and petitioner Calimutan to just go home. Witness
Sañano accompanied victim Cantre to the latter’s house, and on the way,
victim Cantre complained of the pain in the left side of his back hit by the
stone. They arrived at the Cantre’s house at around 12:00 noon, and witness
Sañano left victim Cantre to the care of the latter’s mother, Belen.8
Victim Cantre immediately told his mother, Belen, of the stoning incident
involving petitioner Calimutan. He again complained of backache and also of
stomachache, and was unable to eat. By nighttime, victim Cantre was
alternately feeling cold and then warm. He was sweating profusely and his
entire body felt numb. His family would have wanted to bring him to a doctor
but they had no vehicle. At around 3:00 a.m. of the following day, 05
February 1996, Belen was wiping his son with a piece of cloth, when victim
Cantre asked for some food. He was able to eat a little, but he also later
vomited whatever he ate. For the last time, he complained of backache and
stomachache, and shortly thereafter, he died.9
Right after his death, victim Cantre was examined by Dr. Conchita S.
Ulanday, the Municipal Health Officer of Aroroy, Masbate. The Post-Mortem
Examination Report10 and Certification of Death,11 issued and signed by Dr.
Ulanday, stated that the cause of death of victim Cantre was cardio-
respiratory arrest due to suspected food poisoning. The body of victim
Cantre was subsequently embalmed and buried on 13 February 1996.
Unsatisfied with the findings of Dr. Ulanday, the Cantre family, with the help
of the Lingkod Bayan-Circulo de Abogadas of the ABS-CBN Foundation,
requested for an exhumation and autopsy of the body of the victim Cantre
by the NBI. The exhumation and autopsy of the body of the victim Cantre
was conducted by Dr. Ronaldo B. Mendez on 15 April 1996,12 after which, he
reported the following findings –
Body; fairly well-preserved with sign of partial autopsy; clad in white Barong
Tagalog and blue pants placed inside a wooden golden-brown coffin and
buried in a concrete niche.
Contused-abrasion, 2.3 x 1.0 cms., posterior chest wall, left side.
Hematoma, 16.0 x 8.0 cms., abdomen, along mid-line.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 47
Hemoperitoneum, massive, clotte [sic].
Laceration, spleen.
Other visceral organ, pale and embalmed.
Stomach contains small amount of whitish fluid and other partially digested
food particles.
xxxx
CAUSE OF DEATH: TRAUMATIC INJURY OF THE ABDOMEN.
In his testimony before the RTC, Dr. Mendez affirmed the contents of his
exhumation and autopsy report. He explained that the victim Cantre suffered
from an internal hemorrhage and there was massive accumulation of blood
in his abdominal cavity due to his lacerated spleen. The laceration of the
spleen can be caused by any blunt instrument, such as a stone. Hence, Dr.
Mendez confirmed the possibility that the victim Cantre was stoned to death
by petitioner Calimutan.13
To counter the evidence of the prosecution, the defense presented the sole
testimony of the accused, herein petitioner, Calimutan.
According to petitioner Calimutan, at about 1:00 p.m. on 04 February 1996,
he was walking with his house helper, Michael Bulalacao, on their way to
Crossing Capsay, Panique, Aroroy, Masbate, when they met with the victim
Cantre and witness Sañano. The victim Cantre took hold of Bulalacao and
punched him several times. Petitioner Calimutan attempted to pacify the
victim Cantre but the latter refused to calm down, pulling out from his waist
an eight-inch Batangas knife and uttering that he was looking for trouble,
either "to kill or be killed." At this point, petitioner Calimutan was about ten
meters away from the victim Cantre and was too frightened to move any
closer for fear that the enraged man would turn on him; he still had a family
to take care of. When he saw that the victim Cantre was about to stab
Bulalacao, petitioner Calimutan picked up a stone, which he described as
approximately one-inch in diameter, and threw it at the victim Cantre. He
was able to hit the victim Cantre on his right buttock. Petitioner Calimutan
and Bulalacao then started to run away, and victim Cantre chased after
them, but witness Sañano was able to pacify the victim Cantre. Petitioner
Calimutan allegedly reported the incident to a kagawad of Barangay Panique

and to the police authorities and sought their help in settling the dispute
between Bulalacao and the victim Cantre. Bulalacao, meanwhile, refused to
seek medical help despite the advice of petitioner Calimutan and, instead,
chose to go back to his hometown.14
Petitioner Calimutan was totally unaware of what had happened to the victim
Cantre after the stoning incident on 04 February 1996. Some of his friends
told him that they still saw the victim Cantre drinking at a videoke bar on the
night of 04 February 1996. As far as he knew, the victim Cantre died the
following day, on 05 February 1996, because of food poisoning. Petitioner
Calimutan maintained that he had no personal grudge against the victim
Cantre previous to the stoning incident.15
On 19 November 1998, the RTC rendered its Decision,16 essentially adopting
the prosecution’s account of the incident on 04 February 1996, and
pronouncing that –
It cannot be legally contended that the throwing of the stone by the accused
was in defense of his companion, a stranger, because after the boxing
Michael was able to run. While it appears that the victim was the unlawful
aggressor at the beginning, but the aggression already ceased after Michael
was able to run and there was no more need for throwing a stone. The
throwing of the stone to the victim which was a retaliatory act can be
considered unlawful, hence the accused can be held criminally liable under
paragraph 1 of Art. 4 of the Revised Penal Code.
The act of throwing a stone from behind which hit the victim at his back on
the left side was a treacherous one and the accused committed a felony
causing physical injuries to the victim. The physical injury of hematoma as a
result of the impact of the stone resulted in the laceration of the spleen
causing the death of the victim. The accused is criminally liable for all the
direct and natural consequences of this unlawful act even if the ultimate
result had not been intended. (Art. 4, Par. 1, Revised Penal Code; People vs.
Narciso, CA-G.R. No. 03532-CR, Jan. 13, 1964)
One is not relieved from criminal liability for the natural consequences of
one’s illegal acts merely because one does not intend to produce such
consequences (U.S. vs. Brobst, 14 Phil. 310).
The crime committed is Homicide as defined and penalized under Art. 249 of
the Revised Penal Code.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 48
WHEREFORE, the Court finds and so holds that accused ROLLIE CALIMUTAN
is GUILTY beyond reasonable doubt of the crime of Homicide defined and
penalized under Art. 249 of the Revised Penal Code with no mitigating or
aggravating circumstance and applying the Indeterminate Sentence Law
hereby imposes the penalty of imprisonment from EIGHT (8) YEARS of
Prision Mayor as minimum, to TWELVE (12) YEARS and ONE (1) DAY of
Reclusion Temporal as maximum, and to indemnify the heirs of Philip Cantre
the sum of Fifty Thousand (₱50,000.00) Pesos as compensatory damages
and the sum of Fifty Thousand (₱50,000.00) Pesos as moral damages,
without subsidiary imprisonment in case of insolvency.
Petitioner Calimutan appealed the Decision of the RTC to the Court of
Appeals. The Court of Appeals, in its Decision, dated 29 August
2001,17 sustained the conviction of homicide rendered by the RTC against
petitioner Calimutan, ratiocinating thus –
The prosecution has sufficiently established that the serious internal injury
sustained by the victim was caused by the stone thrown at the victim by the
accused which, the accused-appellant does not deny. It was likewise shown
that the internal injury sustained by the victim was the result of the impact
of the stone that hit the victim. It resulted to a traumatic injury of the
abdomen causing the laceration of the victim’s spleen.
This is clearly shown by the autopsy report prepared by Dr. Ronaldo Mendez,
a Senior Medico Legal Officer of the NBI after the exhumation of the victim’s
cadaver…
The Court cannot give credence to the post mortem report prepared by
Municipal Health Officer Dr. Conchita Ulanday stating that the cause of the
victim’s death was food poisoning. Dr. Ulanday was not even presented to
testify in court hence she was not even able to identify and/or affirm the
contents of her report. She was not made available for cross-examination on
the accuracy and correctness of her findings.
Dr. Conchita Ulanday’s post mortem report cannot prevail over the autopsy
report (Exh. "C") of the Medico-Legal Officer of the NBI who testified and
was cross-examined by the defense.
Besides, if accused-appellant was convinced that the victim indeed died of
food poisoning, as reported by Dr. Conchita Ulanday, why did they not

present her as their witness to belie the report of the Medico-Legal Officer of
the NBI.
The trial court’s evaluation of the testimony of Dr. Mendez is accorded the
highest respect because it had the opportunity to observe the conduct and
demeanor of said witness.
WHEREFORE, in view of the foregoing, the decision of the Regional Trial
Court of Masbate, Branch 46, finding accused-appellant guilty beyond
reasonable doubt of the crime of homicide is hereby AFFIRMED.
The Court of Appeals, in its Resolution, dated 15 January 2002,18 denied the
Motion for Reconsideration filed by petitioner Calimutan for lack of merit
since the issues raised therein had already been passed and ruled upon in its
Decision, dated 29 August 2001.
Comes now petitioner Calimutan, by way of the present Petition for Review
on Certiorari, seeking (1) the reversal of the Decisions of the RTC, dated 19
November 1998, and of the Court of Appeals, dated 29 August 2001,
convicting him of the crime of homicide; and, (2) consequently, his acquittal
of the said crime based on reasonable doubt.
Petitioner Calimutan contended that the existence of the two autopsy
reports, with dissimilar findings on the cause of death of the victim Cantre,
constituted reasonable doubt as to the liability of petitioner Calimutan for the
said death, arguing that –
x x x [I]t was Dra. Conchita Ulanday, Municipal Health Officer of Aroroy,
Masbate was the first physician of the government who conducted an
examination on the cadaver of the victim Philip Cantre whose findings was
that the cause of his death was due to food poisoning while the second
government physician NBI Medico Legal Officer Dr. Ronaldo Mendez whose
findings was that the cause of the death was due to a traumatic injury of the
abdomen caused by a lacerated spleen and with these findings of two (2)
government physicians whose findings are at variance with each other
materially, it is humbly contended that the same issue raised a reasonable
doubt on the culpability of the petitioner.
As there are improbabilities and uncertainties of the evidence for the
prosecution in the case at bar, it suffices to reaise [sic] reasonable doubt as
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 49
to the petitioner’s guilt and therefore, he is entitled to acquittal (People vs.
Delmendo, G.R. No. 32146, November 23, 1981).19
In this jurisdiction, an accused in a criminal case may only be convicted if his
or her guilt is established by proof beyond reasonable doubt. Proof beyond
reasonable doubt requires only a moral certainty or that degree of proof
which produces conviction in an unprejudiced mind; it does not demand
absolute certainty and the exclusion of all possibility of error. 20
In the Petition at bar, this Court finds that there is proof beyond reasonable
doubt to hold petitioner Calimutan liable for the death of the victim Cantre.
Undoubtedly, the exhumation and autopsy report and the personal testimony
before the RTC of prosecution witness, NBI Senior Medico-Legal Officer Dr.
Mendez, are vital pieces of evidence against petitioner Calimutan. Dr.
Mendez determined that the victim Cantre died of internal hemorrhage or
bleeding due to the laceration of his spleen. In his testimony, Dr. Mendez
clearly and consistently explained that the spleen could be lacerated or
ruptured when the abdominal area was hit with a blunt object, such as the
stone thrown by petitioner Calimutan at the victim Cantre.
It bears to emphasize that Dr. Mendez was presented by the prosecution as
an expert witness, whose "competency and academic qualification and
background" was admitted by the defense itself.21 As a Senior Medico-
Legal Officer of the NBI, Dr. Mendez is presumed to possess sufficient
knowledge of pathology, surgery, gynecology, toxicology, and such other
branches of medicine germane to the issues involved in a case. 22
Dr. Mendez’s testimony as an expert witness is evidence, 23 and although it
does not necessarily bind the courts, both the RTC and the Court of Appeals
had properly accorded it great weight and probative value. Having testified
as to matters undeniably within his area of expertise, and having performed
a thorough autopsy on the body of the victim Cantre, his findings as to the
cause of death of the victim Cantre are more than just the mere speculations
of an ordinary person. They may sufficiently establish the causal relationship
between the stone thrown by the petitioner Calimutan and the lacerated
spleen of the victim Cantre which, subsequently, resulted in the latter’s
death. With no apparent mistake or irregularity, whether in the manner by
which Dr. Mendez performed the autopsy on the body of the victim Cantre or
in his findings, then his report and testimony must be seriously considered
by this Court.

Moreover, reference to other resource materials on abdominal injuries would
also support the conclusion of Dr. Mendez that the stone thrown by
petitioner Calimutan caused the death of the victim Cantre.
One source explains the nature of abdominal injuries 24 in the following
manner –
The skin may remain unmarked inspite of extensive internal injuries with
bleeding and disruption of the internal organs. The areas most vulnerable
are the point of attachment of internal organs, especially at the source of its
blood supply and at the point where blood vessels change direction.
The area in the middle superior half of the abdomen, forming a triangle
bounded by the ribs on the two sides and a line drawn horizontally through
the umbilicus forming its base is vulnerable to trauma applied from any
direction. In this triangle are found several blood vessels changing
direction, particularly the celiac trunk, its branches (the hepatic, splenic
and gastric arteries) as well as the accompanying veins. The loop of the
duodenum, the ligament of Treitz and the pancreas are in the retroperitoneal
space, and the stomach and transverse colon are in the triangle, located in
the peritoneal cavity. Compression or blow on the area may cause
detachment, laceration, stretch-stress, contusion of the organs ( Legal
Medicine 1980, Cyril H. Wecht et., p. 41).
As to injuries to the spleen, in particular, 25 the same source expounds that –
The spleen usually suffers traumatic rupture resulting from the impact of a
fall or blow from the crushing and grinding effects of wheels of motor
vehicles. Although the organ is protected at its upper portion by the ribs and
also by the air-containing visceral organs, yet on account of
its superficiality and fragility, it is usually affected by trauma. x x x.
Certainly, there are some terms in the above-quoted paragraphs difficult to
comprehend for people without medical backgrounds. Nevertheless, there
are some points that can be plainly derived therefrom: (1) Contrary to
common perception, the abdominal area is more than just the waist area.
The entire abdominal area is divided into different triangles, and the spleen
is located in the upper triangle, bounded by the rib cage; (2) The spleen and
all internal organs in the same triangle are vulnerable to trauma from all
directions. Therefore, the stone need not hit the victim Cantre from the
front. Even impact from a stone hitting the back of the victim Cantre, in the
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 50
area of the afore-mentioned triangle, could rupture the spleen; and (3)
Although the spleen had already been ruptured or lacerated, there may not
always be a perceptible external injury to the victim. Injury to the spleen
cannot, at all times, be attributed to an obvious, external injury such as a cut
or bruise. The laceration of the victim Cantre’s spleen can be caused by a
stone thrown hard enough, which qualifies as a nonpenetrating trauma 26 –
Nonpenetrating Trauma. The spleen, alone or in combination with other
viscera, is the most frequently injured organ following blunt trauma to
the abdomen or the lower thoracic cage. Automobile accidents provide the
predominating cause, while falls, sledding and bicycle injuries, and blows
incurred during contact sports are frequently implicated in children. x x x
The sheer impact of the stone thrown by petitioner Calimutan at the back of
the victim Cantre could rupture or lacerate the spleen – an organ described
as vulnerable, superficial, and fragile – even without causing any other
external physical injury. Accordingly, the findings of Dr. Mendez that the
victim Cantre died of internal hemorrhage from his lacerated spleen, and the
cause of the laceration of the spleen was the stone thrown by petitioner
Calimutan at the back of the victim Cantre, does not necessarily contradict
his testimony before the RTC that none of the external injuries of the victim
Cantre were fatal.
Based on the foregoing discussion, the prosecution was able to establish that
the proximate cause of the death of the victim Cantre was the stone thrown
at him by petitioner Calimutan. Proximate cause has been defined as "that
cause, which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the result would
not have occurred."27
The two other witnesses presented by the prosecution, namely Sañano and
Belen Cantre, had adequately recounted the events that transpired on 04
February 1996 to 05 February 1996. Between the two of them, the said
witnesses accounted for the whereabouts, actions, and physical condition of
the victim Cantre during the said period. Before the encounter with petitioner
Calimutan and Bulalacao, the victim Cantre seemed to be physically fine.
However, after being hit at the back by the stone thrown at him by petitioner
Calimutan, the victim Cantre had continuously complained of backache.
Subsequently, his physical condition rapidly deteriorated, until finally, he
died. Other than being stoned by petitioner Calimutan, there was no other

instance when the victim Cantre may have been hit by another blunt
instrument which could have caused the laceration of his spleen.
Hence, this Court is morally persuaded that the victim Cantre died from a
lacerated spleen, an injury sustained after being hit by a stone thrown at him
by petitioner Calimutan. Not even the post-mortem report of Dr. Ulanday,
the Municipal Health Officer who first examined the body of the victim
Cantre, can raise reasonable doubt as to the cause of death of the victim
Cantre. Invoking Dr. Ulanday’s post-mortem report, the defense insisted on
the possibility that the victim Cantre died of food poisoning. The post-
mortem report, though, cannot be given much weight and probative value
for the following reasons –
First, a closer scrutiny of the words used by Dr. Ulanday in her post-mortem
report, as well as in the death certificate of the victim Cantre, reveals that
although she suspected food poisoning as the cause of death, she held back
from making a categorical statement that it was so. In the post-mortem
report, 28 she found that "x x x the provable (sic) cause of death was due to
cardio-respiratory arrest. Food poisoning must be confirm (sic) by laboratory
e(x)am." In the death certificate of the victim Cantre, 29 she wrote that the
immediate cause of death was "Cardio-Respiratory Arrest" and the
antecedent cause was "Food Poisoning Suspect." There was no showing that
further laboratory tests were indeed conducted to confirm Dr. Ulanday’s
suspicion that the victim Cantre suffered from food poisoning, and without
such confirmation, her suspicion as to the cause of death remains just that –
a suspicion.
Second, Dr. Ulanday executed before the NBI a sworn statement  in which
30
she had explained her findings in the post-mortem report, to wit –
05. Q: Did you conduct an autopsy on his cadaver?
A: I did sir, but not as exhaustive as that done by the NBI Medico-legal.
06. Q: Now, what do you want to state regarding your certification on the
death of PHILIP B. CANTRE?
A: I stated in the certification and even in the Death Certificate about "Food
Poisoning". What I stated in the Death Certificate was that CANTRE was a
SUSPECTED victim of food poisoning. I didn’t state that he was a case of
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 51
food poisoning. And in the Certification, I even recommended that an
examination be done to confirm that suspicion.
07. Q: What gave you that suspicion of poisoning?
A: As there were no external signs of fatal injuries except that of the
contusion or abrasion, measuring as that size of a 25 centavo coin, I based
my suspicion from the history of the victim and from the police investigation.
08. Q: You also mentioned in your Certification that there was no internal
hemorrhage in the cadaver. Did you open the body of the cadaver?
A: As I have already stated sir, I did not conduct an exhaustive autopsy. I
made an incision on the abdomen and I explored the internal organs of the
cadaver with my hand in search for any clotting inside. But I found none. I
did not open the body of the cadaver.
09. Q: You mentioned about a contusion you have observed on the cadaver.
Where was it located?
A: On the left portion of his back, sir.
10. Q: Now, is it possible that if somebody be hit by a hard object on that
part of his body, his SPLEEN could be injured?
A: Yes, sir. But that would depend on how strong or forceful the impact was.
In contrast, Dr. Mendez described in his testimony before the RTC 31 how he
conducted the autopsy of the body of the victim Cantre, as follows –
Q What specific procedure did you do in connection with the exhumation of
the body of the victim in this case?
A We opened the head, chest and the abdomen.
Q That was part of the autopsy you have conducted?
A Yes, sir.

Q Aside from opening the head as well as the body of the victim Philip
Cantre, what other matters did you do in connection therewith?
A We examined the internal organs.
Q What in particular internal organs you have examined?
A The brain, the heart, the lungs, the liver, the kidneys, the pancreas plus
the intestines.
xxxx
Q The cause of death as you have listed here in your findings is listed as
traumatic injury of the abdomen, will you kindly tell us Doctor what is the
significance of this medical term traumatic injury of the abdomen?
A We, medico-legal officers of the NBI don’t do what other doctors do as
they make causes of death as internal hemorrhage we particularly point to
the injury of the body like this particular case the injury was at the abdomen
of the victim.
Q Will you tell as Doctor what particular portion of the abdomen of the victim
this traumatic injury is located?
A Along the midline but the damaged organ was at the left.
Q What particular organ are you referring to?
A The spleen, sir.
The difference in the extent of the examinations conducted by the two
doctors of the body of the victim Cantre provides an adequate explanation
for their apparent inconsistent findings as to the cause of death. Comparing
the limited autopsy conducted by Dr. Ulanday and her unconfirmed suspicion
of food poisoning of the victim Cantre, as opposed to the exhaustive autopsy
performed by Dr. Mendez and his definitive finding of a ruptured spleen as
the cause of death of the victim Cantre, then the latter, without doubt,
deserves to be given credence by the courts.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 52
Third, that the prosecution no longer presented Dr. Ulanday before the RTC
despite being included in its list of witnesses did not amount to a willful
suppression of evidence that would give rise to the presumption that her
testimony would be adverse to the prosecution if produced.32 As this Court
already expounded in the case of People v. Jumamoy33 –
The prosecution's failure to present the other witnesses listed in the
information did not constitute, contrary to the contention of the accused,
suppression of evidence. The prosecutor has the exclusive prerogative to
determine the witnesses to be presented for the prosecution. If the
prosecution has several eyewitnesses, as in the instant case, the prosecutor
need not present all of them but only as many as may be needed to meet
the quantum of proof necessary to establish the guilt of the accused beyond
reasonable doubt. The testimonies of the other witnesses may, therefore, be
dispensed with for being merely corroborative in nature. This Court has ruled
that the non-presentation of corroborative witnesses would not constitute
suppression of evidence and would not be fatal to the prosecution's case.
Besides, there is no showing that the eyewitnesses who were not presented
in court as witnesses were not available to the accused. We reiterate the rule
that the adverse presumption from a suppression of evidence is not
applicable when (1) the suppression is not willful; (2) the evidence
suppressed or withheld is merely corroborative or cumulative; (3) the
evidence is at the disposal of both parties; and (4) the suppression is an
exercise of a privilege. Moreover, if the accused believed that the failure to
present the other witnesses was because their testimonies would be
unfavorable to the prosecution, he should have compelled their appearance,
by compulsory process, to testify as his own witnesses or even as hostile
witnesses.
It was a judgment call for the prosecution to no longer present Dr. Ulanday
before the RTC, perhaps believing that it had already presented sufficient
evidence to merit the conviction of petitioner Calimutan even without her
testimony. There was nothing, however, preventing the defense from calling
on, or even compelling, with the appropriate court processes, Dr. Ulanday to
testify in court as its witness if it truly believed that her testimony would be
adverse to the case presented by the prosecution.
While this Court is in accord with the factual findings of the RTC and the
Court of Appeals and affirms that there is ample evidence proving that the
death of the victim Cantre was caused by his lacerated spleen, an injury
which resulted from being hit by the stone thrown at him by petitioner

Calimutan, this Court, nonetheless, is at variance with the RTC and the Court
of Appeals as to the determination of the appropriate crime or offense for
which the petitioner should have been convicted for.
Article 3 of the Revised Penal Code classifies felonies according to the means
by which they are committed, in particular: (1) intentional felonies, and (2)
culpable felonies. These two types of felonies are distinguished from each
other by the existence or absence of malicious intent of the offender –
In intentional felonies, the act or omission of the offender is malicious. In the
language of Art. 3, the act is performed with deliberate intent (with malice).
The offender, in performing the act or in incurring the omission, has the
intention to cause an injury  to another. In culpable felonies, the act or
omission of the offender is not malicious. The injury caused by the offender
to another person is "unintentional, it being simply the incident of another
act performed without  malice." (People vs. Sara, 55 Phil. 939). As stated in
Art. 3, the wrongful act results from imprudence, negligence, lack of
foresight or lack of skill.34
In the Petition at bar, this Court cannot, in good conscience, attribute to
petitioner Calimutan any malicious intent to injure, much less to kill, the
victim Cantre; and in the absence of such intent, this Court cannot sustain
the conviction of petitioner Calimutan for the intentional crime of homicide,
as rendered by the RTC and affirmed by the Court of Appeals. Instead, this
Court finds petitioner Calimutan guilty beyond reasonable doubt of the
culpable felony of reckless imprudence resulting in homicide  under
Article 365 of the Revised Penal Code.
Article 365 of the Revised Penal Code expressly provides for the definition of
reckless imprudence –
Reckless imprudence consists in voluntarily, but without malice, doing or
failing to do an act from which material damage results by reason of
inexcusable lack of precaution on the part of the person performing or failing
to perform such act, taking into consideration his employment or occupation,
degree of intelligence, physical condition and other circumstances regarding
persons, time and place.
There are several circumstances, discussed in the succeeding paragraphs,
that demonstrate petitioner Calimutan’s lack of intent to kill the victim
Cantre, and conversely, that substantiate the view of this Court that the
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 53
death of victim Cantre was a result of petitioner Calimutan’s reckless
imprudence. The RTC and the Court of Appeals may have failed to
appreciate, or had completely overlooked, the significance of such
circumstances.
It should be remembered that the meeting of the victim Cantre and witness
Sañano, on the one hand, and petitioner Calimutan and his helper Bulalacao,
on the other, was a chance encounter as the two parties were on their way
to different destinations. The victim Cantre and witness Sañano were on
their way home from a drinking spree in Crossing Capsay, while petitioner
Calimutan and his helper Bulalacao were walking from the market to
Crossing Capsay. While the evidence on record suggests that a running
grudge existed between the victim Cantre and Bulalacao, it did not establish
that there was likewise an existing animosity between the victim Cantre and
petitioner Calimutan.1avvphil.net
In both versions of the events of 04 February 1996 submitted by the
prosecution and the defense, it was the victim Cantre who was the initial
aggressor. He suddenly punched Bulalacao, the helper and companion of
petitioner Calimutan, when they met on the road. The attack of the victim
Cantre was swift and unprovoked, which spurred petitioner Calimutan into
responsive action. Given that this Court dismisses the claim of petitioner
Calimutan that the victim Cantre was holding a knife, it does take into
account that the victim Cantre was considerably older and bigger, at 26
years of age and with a height of five feet and nine inches, compared to
Bulalacao, the boy he attacked, who was only 15 years old and stood at
about five feet. Even with his bare hands, the victim Cantre could have hurt
Bulalacao. Petitioner Calimutan sought only to protect Bulalacao and to stop
the assault of the victim Cantre against the latter when he picked up a stone
and threw it at the victim Cantre. The stone was readily available as a
weapon to petitioner Calimutan since the incident took place on a road. That
he threw the stone at the back of the victim Cantre does not automatically
imply treachery on the part of petitioner Calimutan as it is highly probable
that in the midst of the fray, he threw the stone rashly and impulsively, with
no regard as to the position of the victim Cantre. When the victim Cantre
stopped his aggression after being hit by the stone thrown by petitioner
Calimutan, the latter also desisted from any other act of violence against the
victim Cantre.
The above-described incident could not have taken more than just a few
minutes. It was a very brief scuffle, in which the parties involved would
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 54

hardly have the time to ponder upon the most appropriate course of action heirs of the victim Cantre the amount of ₱50,000.00 as civil indemnity for the
to take. With this in mind, this Court cannot concur in the declaration made latter’s death and ₱50,000.00 as moral damages.
by the Court of Appeals that petitioner Calimutan threw the stone at the
victim Cantre as a retaliatory act. It was evidently a swift and spontaneous SO ORDERED.
reaction to an unexpected and unprovoked attack by the victim Cantre on
Bulalacao. That Bulalacao was already able to run away from the victim MINITA V. CHICO-NAZARIO 
Cantre may have escaped the notice of the petitioner Calimutan who, under Associate Justice
the pressure of the circumstances, was forced to act as quickly as possible.

The prosecution did not establish that petitioner Calimutan threw the stone
at the victim Cantre with the specific intent of killing, or at the very least, of
harming the victim Cantre. What is obvious to this Court was petitioner
Calimutan’s intention to drive away the attacker who was, at that point, the
victim Cantre, and to protect his helper Bulalacao who was, as earlier
described, much younger and smaller in built than the victim Cantre. 35

Granting that petitioner Calimutan was impelled by a lawful objective when

he threw the stone at the victim Cantre, his act was committed with
inexcusable lack of precaution. He failed to consider that a stone the size of
a man’s fist could inflict substantial injury on someone. He also miscalculated
his own strength, perhaps unaware, or even completely disbelieving, that he
could throw a stone with such force as to seriously injure, or worse, kill
someone, at a quite lengthy distance of ten meters.

Since it is irrefragable that the stone thrown by petitioner Calimutan at the

victim Cantre was the proximate cause of the latter’s death, despite being
done with reckless imprudence rather than with malicious intent, petitioner
Calimutan remains civilly liable for such death. This Court, therefore, retains
the reward made by the RTC and the Court of Appeals to the heirs of the
victim Cantre of the amount of ₱50,000.00 as civil indemnity for his death
and another ₱50,000.00 as moral damages.

WHEREFORE, the assailed Decision of the Court of Appeals in CA-G.R. CR

No. 23306, dated 29 August 2001, affirming the Decision of the RTC in
Criminal Case No. 8184, dated 19 November 1998, is hereby MODIFIED.
Petitioner Calimutan is found GUILTY beyond reasonable doubt of reckless
imprudence resulting in homicide, under Article 365 of the Revised Penal
Code, and is accordingly sentenced to imprisonment for a minimum period of
4 months of arresto mayor to a maximum period of two years and one day
of prision correccional. Petitioner Calimutan is further ORDERED to pay the

G.R. No. 88724. April 3, 1990.*
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CEILITO
ORITA alias “Lito,” defendant-appellant.
Criminal Law; Rape; Court; Findings of fact of the trial court on credibility of
witnesses should be accorded the highest respect.—We find no cogent
reason to depart from the well-settled rule that the findings of fact of the
trial court on the credibility of witnesses should be accorded the highest
respect because it has the advantage of observing the demeanor of
witnesses and can discern if a witness is telling the truth (People v. Samson,
G.R. No. 55520, August 25, 1989).
Same; Same; Perfect penetration is not essential for the consummation of
rape.—Clearly, in the crime of rape, from the moment the offender has
carnal knowledge of his victim, he actually attains his purpose and, from that
moment also all the essential elements of the offense have been
accomplished. Nothing more is left to be done by the offender, because he
has performed the last act necessary to produce the crime. Thus, the felony
is consummated. In a long line of cases (People v. Oscar, 48 Phil. 527;
People v. Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L-31886,
April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L-32996, August
21, 1974, 58 SCRA 505), We have set the uniform rule that for the
consummation of rape, perfect penetration is not essential. Any penetration
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 55
of the female organ by the male organ is sufficient. Entry of the labia or lips
of the female organ, without rupture of the hymen or laceration of the
vagina is sufficient to warrant conviction. Necessarily, rape is attempted if
there is no penetration of the female organ (People v. Tayaba, 62 Phil. 559;
People v. Rabadan, et al., 53 Phil. 694; United States v. Garcia, 9 Phil. 434)
because not all acts of execution was performed. The offender merely
commenced the commission of a felony directly by overt acts. Taking into
account the nature, elements and manner of execution of the crime of rape
and jurisprudence on the matter, it is hardly conceivable how the frustrated
stage in rape can ever be committed.
Same; Same; The accused may be convicted of rape on the basis of the
credible testimony of the victim.—The fact is that in a prosecution for rape,
the accused may be convicted even on the sole basis of the victim’s
testimony if credible (People v. Tabago, G.R. No. 69778, November 8, 1988,
167 SCRA 65; People v. Aragona, G.R. No. L-43752, September 19, 1985,
138 SCRA 569; People v. Taduyo, G.R. Nos. L-37928-29, September 29,
1987, 154 SCRA 349). Moreover, Dr. Zamora’s testimony is merely
corroborative and is not an indispensable element in the prosecution of this
case (People v. Alfonso, supra).
APPEAL from the decision of the Regional Trial Court of Borongan, Eastern
Samar, Br. 2.
The facts are stated in the opinion of the Court.
     The Office of the Solicitor General for plaintiff-appellee.
     C. Manalo for defendant-appellant.
MEDIALDEA, J.:
The accused, Ceilito Orita alias Lito, was charged with the crime of rape in
Criminal Case No. 83-031-B before the Regional Trial Court, Branch II,
Borongan, Eastern Samar. The information filed in the said case reads as
follows (p. 47, Rollo):
The undersigned Second Assistant Provincial Fiscal upon prior
complaint under oath by the offended party, accuses CEILITO
ORITA alias LITO of the crime of Rape committed as follows:

That on March 20, 1983, at about 1:30 o’clock in the morning inside
a boarding house at Victoria St., Poblacion, Borongan, Eastern
Samar, Philippines, and within the jurisdiction of this Honorable
Court, above named accused with lewd designs and by the use of a
Batangas knife he conveniently provided himself for the purpose and
with threats and intimidation, did, then and there ccurring,
unlawfully and feloniously lay with and succeeded in having sexual
intercourse with Cristina S. Abayan against her will and without her
consent.
CONTRARY TO LAW.
Upon being arraigned, the accused entered the plea of not guilty to the
offense charged. After the witnesses for the People testified and the exhibits
were formally offered and admitted, the prosecution rested its case.
Thereafter, the defense opted not to present any exculpatory evidence and
instead filed a Motion to Dismiss. On August 5, 1985, the trial court rendered
its decision, the dispositive portion of which reads (pp. 59-60, Rollo):
WHEREFORE. The Court being morally certain of the guilt of accused
CEILITO ORITA @ LITO, of the crime of Frustrated Rape (Art. 335,
RPC), beyond reasonable doubt, with the aggravating circumstances
of dwelling and ccurring (sic) with no mitigating circumstance to
offset the same, and considering the provisions of the Indeterminate
Sentence Law, imposes on accused an imprisonment of TEN (10)
YEARS and ONE (1) DAY,PRISION MAYOR, as minimum to TWELVE
(12) YEARS PRISION MAYOR, maximum; to indemnify CRISTINA S.
ABAYAN, the amount of Four Thousand (P4,000.00) Pesos, without
subsidiary imprisonment in case of insolvency, and to pay costs.
SO ORDERED.
Not satisfied with the decision, the accused appealed to the Court of
Appeals. On December 29, 1988, the Court of Appeals rendered its decision,
the dispositive portion of which reads (p. 102, Rollo):
WHEREFORE, the trial court’s judgment is hereby MODIFIED, and
the appellant found guilty of the crime of rape, and consequently,
sentenced to suffer imprisonment of reclusion perpetua  and to
indemnify the victim in the amount of P30,000.00.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 56
SO ORDERED.
On January 11, 1989, the Court of Appeals issued a resolution setting aside
its December 29, 1988 decision and forwarded the case to this Court,
considering the provision of Section 9, paragraph 3 of Batas Pambansa Blg.
129 in conjunction with Section 17, paragraph 3, subparagraph 1 of the
Judiciary Act of 1948.
The antecedent facts as summarized in the People’s brief are as follows (pp.
71-75, Rollo):
Complainant Cristina S. Abayan was a 19-year old freshman student
at the St. Joseph’s College at Borongan, Eastern Samar. Appellant
was a Philippine Constabulary (PC) soldier.
In the early morning of March 20, 1983, complainant arrived at her
boarding house. Her classmates had just brought her home from a
party (p. 44, tsn, May 23, 1984). Shortly after her classmates had
left, she knocked at the door of her boarding house (p. 5, ibid). All of
a sudden, somebody held her and poked a knife to her neck. She
then recognized appellant who was a frequent visitor of another
boarder (pp. 8-9, ibid).
She pleaded with him to release her, but he ordered her to go
upstairs with him. Since the door which led to the first floor was
locked from the inside, appellant forced complainant to use the back
door leading to the second floor (p. 77, ibid). With his left arm
wrapped around her neck and his right hand poking a “balisong” to
her neck, appellant dragged complainant up the stairs (p. 14, ibid).
When they reached the second floor, he commanded her to look for
a room. With the Batangas knife still poked to her neck, they entered
complainant’s room.
Upon entering the room, appellant pushed complainant who hit her
head on the wall. With one hand holding the knife, appellant
undressed himself. He then ordered complainant to take off her
clothes. Scared, she took off her T-shirt. Then he pulled off her bra,
pants and panty (p. 20, ibid).
He ordered her to lie down on the floor and then mounted her. He
made her hold his penis and insert it in her vagina. She followed his

order as he continued to poke the knife to her. At said position,
however, appellant could not fully penetrate her. Only a portion of
his penis entered her as she kept on moving (p. 23, ibid).
Appellant then lay down on his back and commanded her to mount
him. In this position, only a small part again of his penis was
inserted into her vagina. At this stage, appellant had both his hands
flat on the floor. Complainant thought of escaping (p. 20, ibid).
She dashed out to the next room and locked herself in. Appellant
pursued her and climbed the partition. When she saw him inside the
room, she ran to another room. Appellant again chased her. She fled
to another room and jumped out through a window (p. 27, ibid).
Still naked, she darted to the municipal building, which was about
eighteen meters in front of the boarding house, and knocked on the
door. When there was no answer, she ran around the building and
knocked on the back door. When the policemen who were inside the
building opened the door, they found complainant naked sitting on
the stairs crying. Pat. Donceras, the first policeman to see her, took
off his jacket and wrapped it around her. When they discovered
what happened, Pat. Donceras and two other policemen rushed to
the boarding house. They heard a sound at the second floor and saw
somebody running away. Due to darkness, they failed to apprehend
appellant.
Meanwhile, the policemen brought complainant to the Eastern Samar
Provincial Hospital where she was physically examined.
Dr. Ma. Luisa Abude, the resident physician who examined
complainant, issued a Medical Certificate (Exhibit “A”) which states:
Physical Examination — Patient is fairly built, came in with
loose clothing with no under-clothes; appears in state of
shock, per unambulatory.
PE Findings — Pertinent Findings only.
Neck- — Circumscribed hematoma at Ant. Neck.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 57
Breast — Well developed, conical in shape with prominent
nipples; linear abrasions below (L) breast.
Back — Multiple pinpoint marks.
Extremities — Abrasions at I and (L) knees.
Vulva — No visible abrasions or marks at the perineal area
or over the vulva,  ccurring on (sic) areas noted
surrounding vaginal orifice, tender, hymen intact; no
laceration fresh and old noted; examining finger can barely
enter and with difficulty; vaginal canal tight; no discharges
noted.
As aforementioned, the trial court convicted the accused of frustrated rape.
In this appeal, the accused assigns the following errors:
1) The trial court erred in disregarding the substantial inconsistencies in the
testimonies of the witnesses; and
2) The trial court erred in declaring that the crime of frustrated rape was
committed by the accused.
The accused assails the testimonies of the victim and Pat. Donceras because
they “show remarkable and vital inconsistencies and its incredibility
amounting to fabrication and therefore casted doubt to its candor, truth and
validity.” (p. 33, Rollo)
A close scrutiny of the alleged inconsistencies revealed that they refer to
trivial inconsistencies which are not sufficient to blur or cast doubt on the
witnesses’ straightforward attestations. Far from being badges of fabrication,
the inconsistencies in their testimonies may in fact be justifiably considered
as manifestations of truthfulness on material points. These little deviations
also confirm that the witnesses had not been rehearsed. The most candid
witnesses may make mistakes sometimes but such honest lapses do not
necessarily impair their intrinsic credibility (People v. Cabato, G.R. No. L-
37400, April 15, 1988, 160 SCRA 98). Rather than discredit the testimonies
of the prosecution witnesses, discrepancies on minor details must be viewed
as adding credence and veracity to such spontaneous testimonies

(Aportadera et al. v. Court of Appeals, et al., G.R. No. L-41358, March 16,
1988, 158 SCRA 695). As a matter of fact, complete uniformity in details
would be a strong indication of untruthfulness and lack of spontaneity
(People v. Bazar, G.R. No. L-41829, June 27, 1988, 162 SCRA 609).
However, one of the alleged inconsistencies deserves a little discussion which
is, the testimony of the victim that the accused asked her to hold and guide
his penis in order to have carnal knowledge of her. According to the accused,
this is strange because “this is the only case where an aggressor’s advances
is being helped-out by the victim in order that there will be a ccurring on of
the act.” (p. 34, Rollo). The allegation would have been meritorious had the
testimony of the victim ended there. The victim testified further that the
accused was holding a Batangas knife during the aggression. This is a
material part of the victim’s testimony which the accused conveniently
deleted.
We find no cogent reason to depart from the well-settled rule that the
findings of fact of the trial court on the credibility of witnesses should be
accorded the highest respect because it has the advantage of observing the
demeanor of witnesses and can discern if a witness is telling the truth
(People v. Samson, G.R. No. 55520, August 25, 1989). We quote with favor
the trial court’s finding regarding the testimony of the victim (p 56,  Rollo):
As correctly pointed out in the memorandum for the People, there is
not much to be desired as to the sincerity of the offended party in
her testimony before the court. Her answer to every question
profounded (sic), under all circumstances, are plain and
straightforward. To the Court she was a picture of supplication
hungry and thirsty for the immediate vindication of the affront to her
honor. It is inculcated into the mind of the Court that the accused
had wronged her; had traversed illegally her honor.
When a woman testifies that she has been raped, she says in effect all that
is necessary to show that rape was committed provided her testimony is
clear and free from contradiction and her sincerity and candor, free from
suspicion (People v Alfonso, G.R. No. 72573, August 31, 1987, 153 SCRA
487; People v. Alcid, G.R. Nos. 66387-88, February 28, 1985, 135 SCRA 280;
People v. Soterol G.R. No. 53498, December 16, 1985, 140 SCRA 400). The
victim in this case did not only state that she was raped but she testified
convincingly on how the rape was committed. The victim’s testimony from
the time she knocked on the door of the municipal building up to the time
she was brought to the hospital was corroborated by Pat. Donceras.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 58
Interpreting the findings as indicated in the medical certificate, Dr. Reinerio
Zamora (who was presented in view of the unavailability of Dr. Abude)
declared that the abrasions in the left and right knees, linear abrasions below
the left breast, multiple pinpoint marks, circumscribed hematoma at the
anterior neck, erythematous area surrounding the vaginal orifice and tender
vulva, are conclusive proof of struggle against force and violence exerted on
the victim (pp. 52-53, Rollo). The trial court even inspected the boarding
house and was fully satisfied that the narration of the scene of the incident
and the conditions therein is true (p. 54, Rollo):
. . . The staircase leading to the first floor is in such a condition safe
enough to carry the weight of both accused and offended party
without the slightest difficulty, even in the manner as narrated. The
partitions of every room were of strong materials, securedly nailed,
and would not give way even by hastily scaling the same.
A little insight into human nature is of utmost value in judging rape
complaints (People v. Torio, et al., G.R. No. L-48731, December 21, 1983,
126 SCRA 265). Thus, the trial court added (p. 55, Rollo):
. . . And the jump executed by the offended party from that balcony
(opening) to the ground which was correctly estimated to be less
than eight (8) meters, will perhaps occasion no injury to a frightened
individual being pursued. Common experience will tell us that in
occasion of conflagration especially ccurring (sic) in high buildings,
many have been saved by jumping from some considerable heights
without being injured. How much more for a frightened barrio girl,
like the offended party to whom honor appears to be more valuable
than her life or limbs? Besides, the exposure of her private parts
when she sought assistance from authorities, as corroborated, is
enough indication that something not ordinary happened to her
unless she is mentally deranged. Sadly, nothing was adduced to
show that she was out of her mind.
In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982,
117 SCRA 312), We ruled that:
What particularly imprints the badge of truth on her story is her
having been rendered entirely naked by appellant and that even in
her nudity, she had to run away from the latter and managed to gain
sanctuary in a house owned by spouses hardly known to her. All
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 59

these acts she would not have done nor would these facts have 3. When the woman is under twelve years of age, even though
occurred unless she was sexually assaulted in the manner she neither of the circumstances mentioned in the two next preceding
narrated. paragraphs shall be present.

The accused questions also the failure of the prosecution to present other X x x           x x x          x x x
witnesses to corroborate the allegations in the complaint and the non-
presentation of the medico-legal officer who actually examined the victim. Carnal knowledge is defined as the act of a man in having sexual bodily
Suffice it to say that it is up to the prosecution to determine who should be connections with a woman (Black’s Law Dictionary. Fifth Edition, p. 193).
presented as witnesses on the basis of its own assessment of their necessity
(Tugbang v. Court of Appeals, et al., G.R. No. 56679, June 29, 1989; People On the other hand, Article 6 of the same Code provides:
v. Somera, G.R. No. 65589, May 31, 1989). As for the non-presentation of
the medico-legal officer who actually examined the victim, the trial court
Art. 6. Consummated, frustrated, and attempted felonies. —
stated that it was by agreement of the parties that another physician
Consummated felonies as well as those which are frustrated and
testified inasmuch as the medico-legal officer was no longer available. The
attempted, are punishable.
accused did not bother to contradict this statement.
A felony is consummated when all the elements necessary for its
Summing up, the arguments raised by the accused as regards the first
execution and accomplishment are present; and it is frustrated when
assignment of error fall flat on its face. Some were not even substantiated
the offender performs all the acts of execution which would produce
and do not, therefore, merit consideration. We are convinced that the
the felony as a consequence but which, nevertheless, do not
accused is guilty of rape. However, We believe the subject matter that really
produce it by reason of causes independent of the will of the
calls for discussion, is whether or not the accused’s conviction
perpetrator.
for  frustrated rape is proper. The trial court was of the belief that there is no
conclusive evidence of penetration of the genital organ of the victim and thus
convicted the accused of frustrated rape only. 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
The accused contends that there is no crime of frustrated rape. The Solicitor
cause or accident other than his own spontaneous desistance.
General shares the same view.
Correlating these two provisions, there is no debate that the attempted and
Article 335 of the Revised Penal Code defines and enumerates the elements
consummated stages apply to the crime of rape.1âwphi1 Our concern now is
of the crime of rape:
whether or not the frustrated stage applies to the crime of rape.

Art. 335. When and how rape is committed. — Rape is committed by

The requisites of a frustrated felony are: (1) that the offender has performed
having carnal knowledge of a woman under any of the following
all the acts of execution which would produce the felony and (2) that the
circumstances:
felony is not produced due to causes independent of the perpetrator’s will. In
the leading case of United States v. Eduave, 36 Phil. 209, 212, Justice
1. By using force or intimidation; Moreland set a distinction between attempted and frustrated felonies which
is readily understood even by law students:
2. When the woman is deprived of reason or otherwise unconscious
and . . . A crime cannot be held to be attempted unless the offender,
after beginning the commission of the crime by overt acts, is

prevented, against his will, by some outside cause from performing
all of the acts which should produce the crime. In other words, to be
an attempted crime the purpose of the offender must be thwarted
by a foreign force or agency which intervenes and compels him to
stop prior to the moment when he has performed all of the acts
which should produce the crime as a consequence, which acts it is
his intention to perform. If he has performed all of the acts which
should result in the consummation of the crime and voluntarily
desists from proceeding further, it can not be an attempt. The
essential element which distinguishes attempted from frustrated
felony is that, in the latter, there is no intervention of a foreign or
extraneous cause or agency between the beginning of the
commission of the crime and the moment when all of the acts have
been performed which should result in the consummated crime;
while in the former there is such intervention and the offender does
not arrive at the point of performing all of the acts which should
produce the crime. He is stopped short of that point by some cause
apart from his voluntary desistance.
Clearly, in the crime of rape, from the moment the offender has carnal
knowledge of his victim he actually attains his purpose and, from that
moment also all the essential elements of the offense have been
accomplished.  Nothing more is left to be done by the offender, because he
has performed the last act necessary to produce the crime.Thus, the felony
is consummated. In a long line of cases (People v. Oscar, 48 Phil. 527;
People v. Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L-31886,
April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L-32996, August
21, 1974, 58 SCRA 505), We have set the uniform rule that for the
consummation of rape, perfect penetration is not essential. Any penetration
of the female organ by the male organ is sufficient. Entry of the labia or lips
of the female organ, without rupture of the hymen or laceration of the
vagina is sufficient to warrant conviction. Necessarily, rape is attempted if
there is no penetration of the female organ (People v. Tayaba, 62 Phil. 559
People v. Rabadan et al., 53 Phil. 694; United States v. Garcia: 9 Phil.
434) because not all acts of execution was performed. The offender merely
commenced the commission of a felony directly by overt acts . Taking into
account the nature, elements and manner of execution of the crime of rape
and jurisprudence on the matter, it is hardly conceivable how the frustrated
stage in rape can ever be committed.
Of course, We are aware of our earlier pronouncement in the case of People
v. Eriña  50 Phil. 998 [1927] where We found the offender guilty of frustrated
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 60
rape there being no conclusive evidence of penetration of the genital organ
of the offended party. However, it appears that this is a “stray” decision
inasmuch as it has not been reiterated in Our subsequent decisions.
Likewise, We are aware of Article 335 of the Revised Penal Code, as
amended by Republic Act No. 2632 (dated September 12, 1960) and
Republic Act No. 4111 (dated March 29, 1965) which provides, in its
penultimate paragraph, for the penalty of death when the rape is attempted
or frustrated and a homicide is committed by reason or on the occasion
thereof. We are of the opinion that this particular provision on frustrated
rape is a dead provision. The Eriña case, supra, might have prompted the
law-making body to include the crime of frustrated rape in the amendments
introduced by said laws.
In concluding that there is no conclusive evidence of penetration of the
genital organ of the victim, the trial court relied on the testimony of Dr.
Zamora when he “categorically declared that the findings in the vulva does
not give a concrete disclosure of penetration. As a matter of fact, he tossed
back to the offended party the answer as to whether or not there actually
was penetration.” (p. 53, Rollo) Furthermore, the trial court stated (p.
57, Rollo):
. . . It cannot be insensible to the findings in the medical certificate
(Exhibit “A”) as interpreted by Dr. Reinerio Zamora and the equivocal
declaration of the latter of uncertainty whether there was
penetration or not. It is true, and the Court is not oblivious, that
conviction for rape could proceed from the uncorroborated testimony
of the offended party and that a medical certificate is not necessary
(People v. Royeras People v. Orteza, 6 SCRA 109, 113). But the
citations the people relied upon cannot be applicable to the instant
case. The testimony of the offended party is at variance with the
medical certificate. As such, a very disturbing doubt has surfaced in
the mind of the court. It should be stressed that in cases of rape
where there is a positive testimony and a medical certificate, both
should in all respect, compliment each other, for otherwise to rely on
the testimony alone in utter disregard of the manifest variance in the
medical certificate, would be productive of mischievous results.
The alleged variance between the testimony of the victim and the medical
certificate does not exist. On the contrary, it is stated in the medical
certificate that the vulva was erythematous (which means marked by
abnormal redness of the skin due to capillary congestion, as in inflammation)
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 61

and tender. It bears emphasis that Dr. Zamora did not rule out penetration
of the genital organ of the victim. He merely testified that there was
uncertainty whether or not there was penetration. Anent this testimony, the
victim positively testified that there was penetration, even if only partially
(pp. 302, 304, t.s.n., May 23, 1984):
Q Was the penis inserted on your vagina?
A It entered but only a portion of it.
X x x           x x x          x x x
Q What do you mean when you said comply, or what act do you
referred (sic) to, when you said comply?
A I inserted his penis into my vagina.
38968-70, February 9, 1989, that the cited Constitutional provision did not
declare the abolition of the death penalty but merely prohibits the imposition
of the death penalty, the Court has since February 2, 1987 not imposed the
death penalty whenever it was called for under the Revised Penal Code but
instead reduced the same to reclusion perpetua (People v. Solis, et al., G.R.
Nos. 78732-33, February 14, 1990). Reclusion perpetua, being a single
indivisible penalty under Article 335, paragraph 3, is imposed regardless of
any mitigating or aggravating circumstances (in relation to Article 63,
paragraph 1, Revised Penal Code; see People v. Arizala, G.R. No. 59713,
March 15, 1982, 112 SCRA 615; People v. Manzano, G.R. No. L38449,
November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R. No. 70744, May
31, 1985, 136 SCRA 702).
ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED.
The accused Ceilito Orita is hereby found guilty beyond reasonable doubt of
the crime of rape and sentenced to reclusion perpetua as well as to
indemnify the victim in the amount of P30,000.00.

Q And was it inserted? SO ORDERED.

A Yes only a little. Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur

The fact is that in a prosecution for rape, the accused may be convicted even
on the sole basis of the victim’s testimony if credible (People v. Tabago, G.R.
No. 69778, November 8, 1988, 167 SCRA 65; People v. Aragona, G.R. No. L-
43752, September 19, 1985, 138 SCRA 569; People v. Taduyo, G.R. Nos. L-
37928-29, September 29, 1987, 154 SCRA 349). Moreover, Dr. Zamora’s
testimony is merely corroborative and is not an indispensable element in the
prosecution of this case (People v. Alfonso, supra).

Although the second assignment of error is meritorious, it will not tilt the
scale in favor of the accused because after a thorough review of the records,
We find the evidence sufficient to prove his guilt beyond reasonable doubt of
the crime of consummated rape.

Article 335, paragraph 3, of the Revised Penal Code provides that whenever
the crime of rape is committed with the use of a deadly weapon, the penalty
shall be reclusion perpetua to death. The trial court appreciated the
aggravating circumstances of dwelling and nighttime. Thus, the proper
imposable penalty is death. In view, however, of Article 111, Section 19(1) of
the 1987 Constitution and Our ruling in People v. Millora, et al., G.R. Nos. L-

[No. 43530. August 3, 1935]
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff and appellee,
vs. AURELIO LAMAHANG, defendant and appellant.
1.CRIMINAL LAW; ATTEMPT TO COMMIT AN INDETERMINATE CRIME.—The
attempt which the Penal Code punishes is that which has a logical relation to
a particular, concrete offense; that, which is the beginning of the execution
thereof by overt acts of the perpetrator leading directly to its realization and
consummation. The attempt to commit an indeterminate offense, inasmuch
as its nature in relation to its objective is ambiguous, is not a juridical fact
from the standpoint of the Penal Code.
2.ID.; ID.—It is not sufficient, for the purpose of imposing penal sanction,
that an act objectively performed should constitute a mere beginning of
execution; it is necessary to establish its unavoidable relation, like the logical
and natural relation of the cause and its effect, to the deed which, upon its
consummation, will ripen into one of the crimes defined and punished by the
Code; it is necessary to prove that such beginning of execution, if carried to
its complete termination following its natural course, without being frustrated
by external obstacles nor by the voluntary desistance of the perpetrator, will
logically and necessarily ripen into a concrete offense.
3.ID.; ID.; ATTEMPTED ROBBERY.—In order that a simple act of entering by
means of force or violence another person's dwelling may be considered as
attempted robbery, it must be shown that the offender clearly intended to
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 62
take possession, for the purpose of gain, of some personal property
belonging to another. In the present case, there is no evidence' in the record
from which such purpose of the accused may reasonably be inferred.
4.ID.; ID.; ID.—From the fact established and stated in the decision, that the
accused on the day in question was making an opening by means of an iron
bar on the wall of T. Y.'s store, it may only be inferred as a logical conclusion
that his evident intention was to enter by means of force said store against
the will of its owner. That his final objective, once he succeeded in entering
the store, was to rob, to cause physical injury to its occupants, or to commit
any other offense, there is nothing in the record to justify a concrete finding.
5.ID.; ATTEMPTED TRESPASS TO DWELLING.—The fact under consideration
does not constitute attempted robbery but attempted trespass to dwelling
(People vs. Tayag and Morales, 59 Phil., 606, and decisions of the Supreme
Court of Spain therein cited). The accused may be convicted and sentenced
for an attempt to commit this crime, in accordance with the weight of the
evidence and the allegations contained in the information.
APPEAL from a judgment of the Court of First Instance of Iloilo. Paredes, J.
The facts are stated in the opinion of the court.
Honesto K. Bausa for appellant.
Solicitor-General Hilado for appellee.
RECTO, J.:
The defendant Aurelio Lamahang is before this court on appeal from a
decision of the Court of First Instance of Iloilo, finding him guilty of
attempted robbery and sentencing him to suffer two years and four months
of prision correccional  and to an additional penalty of ten years and one day
of prision mayor  for being an habitual delinquent, with the accessory
penalties of the law, and to pay the costs of the proceeding.
At early dawn on March 2, 1935, policeman Jose Tomambing, who was
patrolling his beat on Delgado and C.R. Fuentes streets of the City of Iloilo,
caught the accused in the act of making an opening with an iron bar on the
wall of a store of cheap goods located on the last named street. At that time

the owner of the store, Tan Yu, was sleeping inside with another Chinaman.
The accused had only succeeded in breaking one board and in unfastening
another from the wall, when the policeman showed up, who instantly
arrested him and placed him under custody.
The fact above stated was considered and declared unanimously by the
provincial fiscal of Iloilo, the trial judge and the Solicitor-General, as
constituting attempted robbery, which we think is erroneous.
It is our opinion that the attempt to commit an offense which the Penal Code
punishes is that which has a logical relation to a particular, concrete offense;
that, which is the beginning of the execution of the offense by overt acts of
the perpetrator, leading directly to its realization and consummation. The
attempt to commit an indeterminate offense, inasmuch as its nature in
relation to its objective is ambiguous, is not a juridical fact from the
standpoint of the Penal Code. There is no doubt that in the case at bar it was
the intention of the accused to enter Tan Yu's store by means of violence,
passing through the opening which he had started to make on the wall, in
order to commit an offense which, due to the timely arrival of policeman
Tomambing, did not develop beyond the first steps of its execution. But it is
not sufficient, for the purpose of imposing penal sanction, that an act
objectively performed constitute a mere beginning of execution; it is
necessary to establish its unavoidable connection, like the logical and natural
relation of the cause and its effect, with the deed which, upon its
consummation, will develop into one of the offenses defined and punished by
the Code; it is necessary to prove that said beginning of execution, if carried
to its complete termination following its natural course, without being
frustrated by external obstacles nor by the voluntary desistance of the
perpetrator, will logically and necessarily ripen into a concrete offense. Thus,
in case of robbery, in order that the simple act of entering by means of force
or violence another person's dwelling may be considered an attempt to
commit this offense, it must be shown that the offender clearly intended to
take possession, for the purpose of gain, of some personal property
belonging to another. In the instant case, there is nothing in the record from
which such purpose of the accused may reasonably be inferred. From the
fact established and stated in the decision, that the accused on the day in
question was making an opening by means of an iron bar on the wall of Tan
Yu's store, it may only be inferred as a logical conclusion that his evident
intention was to enter by means of force said store against the will of its
owner. That his final objective, once he succeeded in entering the store, was
to rob, to cause physical injury to the inmates, or to commit any other
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 63
offense, there is nothing in the record to justify a concrete
finding.1avvphil.ñet
It must be borne in mind (I Groizard, p. 99) that in offenses not
consummated, as the material damage is wanting, the nature of the
action intended (accion fin) cannot exactly be ascertained, but the
same must be inferred from the nature of the acts executed (accion
medio). Hence, the necessity that these acts be such that by their
very nature, by the facts to which they are related, by the
circumstances of the persons performing the same, and by the
things connected therewith, they must show without any doubt, that
they are aimed at the consummation of a crime. Acts susceptible of
double interpretation , that is, in favor as well as against the culprit,
and which show an innocent as well as a punishable act, must not
and can not furnish grounds by themselves for attempted nor
frustrated crimes. The relation existing between the facts submitted
for appreciation and the offense which said facts are supposed to
produce must be direct; the intention must be ascertained from the
facts and therefore it is necessary, in order to avoid regrettable
instances of injustice, that the mind be able to directly infer from
them the intention of the perpetrator to cause a particular injury.
This must have been the intention of the legislator in requiring that
in order for an attempt to exist, the offender must commence the
commission of the felony directly by overt acts, that is to say, that
the acts performed must be such that, without the intent to commit
an offense, they would be meaningless.
Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt
acts leading to the commission of the offense, are not punished except when
they are aimed directly to its execution, and therefore they must have an
immediate and necessary relation to the offense."
Considering — says the Supreme Court of Spain in its decision of
March 21, 1892 — that in order to declare that such and such overt
acts constitute an attempted offense it is necessary that their
objective be known and established, or that said acts be of such
nature that they themselves should obviously disclose the criminal
objective necessarily intended, said objective and finality to serve as
ground for the designation of the offense: . . . .
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 64

In view of the foregoing, we are of the opinion, and so hold that the fact Avanceña, C.J., Abad Santos, Hull, and Vickers, JJ., concur.
under consideration does not constitute attempted robbery but attempted
trespass to dwelling (People vs. Tayag and Morales, 59 Phil., 606, and
decisions of the Supreme Court of Spain therein cited). Under article 280 of
the Revised Penal Code, this offense is committed when a private person
shall enter the dwelling of another against the latter's will. The accused may
be convicted and sentenced for an attempt to commit this offense in
accordance with the evidence and the following allegation contained in the
information: "... the accused armed with an iron bar forced the wall of said
store by breaking a board and unfastening another for the purpose of
entering said store ... and that the accused did not succeed in entering the
store due to the presence of the policeman on beat Jose Tomambing, who
upon hearing the noise produced by the breaking of the wall, promptly
approached the accused ... ." Under the circumstances of this case the
prohibition of the owner or inmate is presumed. (U.S. vs. Ostrea, 2 Phil., 93;
U.S. vs. Silvano, 31 Phil., 509' U.S. vs. Ticson, 25 Phil., 67; U.S. vs. Mesina,
21 Phil., 615; U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil.,
292.) Against the accused must be taken into consideration the aggravating
circumstances of nighttime and former convictions, — inasmuch as the
record shows that several final judgments for robbery and theft have been
rendered against him — and in his favor, the mitigating circumstance of lack
of instruction. The breaking of the wall should not be taken into
consideration as an aggravating circumstance inasmuch as this is the very
fact which in this case constitutes the offense of attempted trespass to
dwelling.

The penalty provided by the Revised Penal Code for the consummated
offense of trespass to dwelling, if committed with force, is  prision
correccional  in its medium and maximum periods and a fine not exceeding
P1,000 (art. 280, par. 2); therefore the penalty corresponding to attempted
trespass to dwelling is to degrees lower (art. 51), or, arresto mayor in its
minimum and medium periods. Because of the presence of two aggravating
circumstances and one mitigating circumstance the penalty must be imposed
in its maximum period. Pursuant to article 29 of the same Code, the accused
is not entitled to credit for one-half of his preventive imprisonment.

Wherefore, the sentence appealed from is revoked and the accused is hereby
held guilty of attempted trespass to dwelling, committed by means of force,
with the aforesaid aggravating and mitigating circumstances and sentenced
to three months and one day of arresto mayor, with the accessory penalties
thereof and to pay the costs.

[No. L-270. Agosto 30, 1946]
EL PUEBLO DE FIILIPINAS, querellante y apelado, contra
RESTITUTO BAUDEN, acusado y apelante.
1,DERECHO PENAL; HOMICIDIO; PRUEBAS; DECLARACIONES
CONTRADICTORIAS DEL ACUSADO.—La declaración de un acusado no
merece crédito ni inspira confianza si es inconsistente e incompatible con sus
otras declaraciones hechas en otras ocasiones.
2.ID.; ID.; ID.; DEFENSA PROPIA; PRUEBAS CONVINCENTES.—La
exculpación, en caso de homicidio, como defensa propia, es una alegación
afirmativa que debe ser demostrada con pruebas convincentes y no de
dudosa veracidad; en caso contrario, la condena del acusado es forzosa.
.3. ID.; ID.; ID.; ACEPTACIÓN DE UN RETO.—Aceptado un desafío y
colocándose por ello el agente en un estado ilegal y de fuerza, la agresión
previa de su contrario, que por no ser inesperada no puede hallarse
desapercibido, excluye la situación de defensa legítima pues el reto o desafío
excluye por sí mismo el concepto de defensa personal eximente, total o
parcialmente, de responsabilidad.
APELACIÓN contra una sentencia del Juzgado de Primera Instancia de
Negros Occidental. Rodas, J.
Los hechos aparecen relacionados en la decision del Tribunal.
D. José T. Liboon en representación del apelante.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 65
El Procurador General Auxiliar Sr. Gianzon y el Procurador Sr. Marasigan en
representación del Gobierno.
PABLO, M.:
Esta causa está ante Nos en grado de apelación. El acusado admite que dió
muerte a Alejandro Piso en el pueblo de Manapla, Negros Occidental en la
tarde de agosto 2, 1945; pero lo hizo en defensa de su vida.
Declarando como testigo a su favor, el acusado dijo que en aquella tarde
Alejandro Piso le encontró a él en un campo sacando unas mazorcas de
maíz, y le increpó "Qué estás haciendo, Kokoy? Tú mismo estás hurtando mi
maíz." Ofendido, Alejandro le dirigió una palabra insultante, abalanzándose
hacia él El acusado corrió hacia su casa y Alejandro le persiguió, le tiró
piedra, y después le dijo: "Espérame, te voy a matar." El acusado consiguió
refugiarse en su casa. Alejandro apedreó dicha casa, y al ver a un gallo del
acusado salir de un palayal, le tiró una piedra matándole en el acto.
Alejandro Piso retó otra vez al acusado diciéndole "Vente abajo, loco, te
mataré como maté a tu gallo." Como el acusado no contestaba, Alejandro
Piso fué a su casa para recoger un bolo y, a su vuelta, cortó dos plátanos del
acusado y después invitó al acusado que bajase. Cuando Alejandro estaba
cerca de la puerta de la casa con intención de subir, el acusado salió
pasando por la puerta de la cocina llevando consigo una tranca (una madera
de un metro de largo, dos dedos de grueso y tres dedos de ancho) y con ella
pegó a Alejandro acertándole en la mano derecha y en la cadera derecha, y
el bolo de que estaba armado Alejandro cayó al suelo. EI acusado se
apoderó del bolo y Alejandro arrebató de él la tranca. Con ella, Alejandro
atacó al acusado varias veces en rápida sucesión mientras el acusado,
retrocediendo, se defendía con el bolo. Así fué como el acusado consiguió
herir varias veces a Alejandro hasta dejarle tendido y muerto en el suelo.
Inmediatamente, fué a buscar a su esposa y la encontró en la casa de su
hermano. Por la noche, después de despedirse de ella, de su hermano e
hijos, se dirigió al cuartel de policía en la población, diciendo al policía
Vicente Rosales "guardia, arréstame porque maté a un hombre." "Este es el
bolo que use al matar."
¿ Merece crédito esta defensa? Opinamos que no, por varias razones.
Primera: si es verdad que Alejandro intentaba subir, el acusado le hubiera
esperado que subiera y con la tranca derribarle en vez de dejar la casa
pasando por la cocina. Uno que sube no puede ofrecer resistencia efectiva
contra el que está en un piso seguro y más alto. Su casa era su mejor
fortaleza. Cualquiera, en su lugar, no la hubiera abandonado para exponerse

a los azares de una lucha en terreno igual. Segunda: este intento de
Alejandro de subir por la escalera de la casa es un hecho nuevo que no
reveló el acusado cuando prestó su affidavit en agosto 14, 1945 ni lo dijo al
policía cuando se presentó. Preguntado por el motivo, contestó: "que él mató
a Alejandro Piso porque Alejandro mató a su gallo." Esta declaración hecha
inmediatamente después del suceso debe ser la verdad llana y sencilla y no
el cuento de la legítima defensa. "La declaración de un acusado no merece
crédito ni inspira confianza si es inconsistente e incompatible con sus otras
declaraciones hechas en otras ocasiones." (Pueblo contra Ramos, pág. 4,
ante.) Tercera: el acusado es zurdo, y si es verdad que daba los bolazos
frente a frente contra Alejandro mientras iba retrocediendo y defendiéndose
de los garrotazos, las heridas se hubieran infligido en el lado derecho de
Alejandro. Las siete heridas encontradas en el cadáver de éste estaban todas
en el lado izquierdo. Estos datos son elocuentes: denuncian que el acusado
estaba detrás de Alejandro cuando daba los tajos. Caído el bolo, Alejandro
no tenía otro remedio más que la fuga. Le perseguía indudablemente el
acusado cuando le daba los bolazos. Cuarta: es raro que el acusado no haya
recibido ninguna contusión si es verdad que Alejandro le atacaba con la
tranca (de un metro de largo) mientras él se defendía solamente con el bolo
que es mucho más corto. Esta circunstancia hace insostenible la teoría del
acusado: de legítima defensa.
La exculpación, en caso de homicidio, como defensa propia, es una alegación
afirmativa que debe ser demostrada con pruebas convincentes y no de
dudosa veracidad; en caso contrario, la condena del acusado es forzosa.
(Estados Unidos contra Coronel, 30 Jur. Fil., 119; Pueblo contra Baguio, 43
Jur. Fil., 715; Pueblo contra Gutiérrez, 53 Jur. Fil., 648; Pueblo contra
Ramos, pág. 4, ante.)
"Incumbe al acusado establecer clara y bastantemente haberlo hecho en
legítima defensa propia." (Pueblo contra Silang Cruz, 53 Jur. Fil., 677.)
"Para que la defensa propia como tal defensa pueda prosperar es preciso
que las pruebas la demuestren de una manera clara y convincente." (Pueblo
contra, Berio, 59 Jur. Fil., 562.)
Por otra parte, el acusado respondió al reto de Alejandro bajando de su casa
armado con una tranca: no puede invocar con éxito el derecho de legítima
def ensa porque voluntariamente se expuso a las contingencias de una lucha
con su contrario, y porque no puede ser otra la intención de los
contendientes más que el de dañarse recíprocamente, el primer ataque que
puede venir de cualquiera no es más que un incidente de la misma pelea, y
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 66
de ninguna manera debe considerarse como agresión injustificada e
inesperada. (Sentencia del Tribunal Supremo de España de 6 de febrero de
1899, citada en Pueblo contra Cortés, 36 Jur. Fil., 892.) "Es ya
jurisprudencia"—dijo el Presidente Arellano en la misma causa—"bien
sentada en reiteradas decisiones interpretativas del artículo 8 del Código
Penal, que aceptado un desafío ío y colocándose por ello el agente en un
estado ilegal y de fuerza, la agresión previa de su contrario, que por no ser
inesperada no puede hallarse desapercibido, excluye la situación de defensa
legítima, pues el reto o desafío excluye por sí mismo el concepto de defensa
personal eximente, total o parcialmente, de responsabilidad." (Sentencia del
Tribunal Supremo de España de 8 de marzo de 1897.)
Opinamos que el acusado no ha probado su alegada defensa legítima. Ha
infringido el artículo 249 del Código Penal Revisado, con dos circunstancias
atenuantes, la de provocación inmediata de parte del ofendido y
presentación voluntaria del acusado a los agentes de autoridad. (Artículo 13,
párs. 4.a y 7.a del Código Penal Revisado.)
Confirmamos la sentencia del juzgado inferior que impone al acusado la pena
indeterminada que no baje de dos (2) años, cuatro (4) meses y un (1) día de
prisión correccional y que no exceda de ocho (8) años y un (1) día de prisión
mayor, indemnización a los herederos del occiso en la cantidad de P2,000,
sin prisión subsidiaria en caso de insolvencia, con las costas del juicio.
Parás, Hilado, y Padilla, MM., están conformes.
PERFECTO, J., dissenting:
Restituto Bauden was found guilty of homicide, committed on the person of
Alejandro Piso on August 2, 1945, and sentenced to an indeterminate
penalty of from two (2) years, four (4) months and one (1) day of prisión
correccional to eight (8) ye^rs and one (1) day of prisión mayor, and to
indemnify the heirs of the deceased in the sum of P2,000. He appealed from
the decision.
At the trial three witnesses testified for the prosecution.
Salomon Losande, a sanitary inspector, identified Exhibit A as the certificate
he issued on August 4, 1945, on the result of the post mortem examination
he made of the cadáver of Alejandro Piso.

Adoración Piso, 11 years old child of Alejandro, testified that "I was watching
the chickens in the field. My father scolded me because the chickens were
picking up the seeds of our field, but my uncle, Tatay Totong, intervened.
They made an altercation. They were arguing with each other. Tatay Totong
picked up a stone and threw it at my father who was riding on a carabao. My
f ather was not hit. So, he jump' from the carabao and ran away. Tatay
Totong went up to his house and got a bolo and went after my father. He
immediately boloed my father. That is all. He (my father) fell on the ground."
Her father was hit by the bolo on the left side in front of the ear. Tatay
Totong is Restituto Bauden.
Concerning this witness, the lower court said: "The court had examined the
witness for the purpose of finding out whether she had the necessary power
of observing and transmitting what she observed. She has some but not
fully. So, if it is only the testimony of this girl, I don't think the court would
make any finding."
Vicente Rosales, the last witness for the prosecution, is a policeman of
Manapla, Negros Occidental, and testified that in the evening of August 3,
while he was on duty in the municipal building, the accused approached him
and cried, "Guard, catch me because I killed a man. This is the bolo that I
used in killing." The witness surrendered the bolo to the sergeant. He
investigated the accused, who said that he killed Piso because the latter
killed his chicken. No attempt was made to put any statement of the accused
into writing.
Evaristo Padilla, 63 years old, uncle of Piso's wife, testified that in the
afternoon of August 2, "I heard Alejandro Piso saying, 'wait for me because I
will kill you,' and I turned back my face and saw Alejandro Piso following
Restituto Bauden having a stone in his hand after he had thrown a stone
once at Restituto." Restituto went to his house. And then Alejandro arrived
and he stoned the house of Restituto Bauden. Alejandro Piso saw some
chickens in the field and he picked up some stones and stoned the chickens
and one was hit and was killed. The chicken came f rom the rice field. The
field is near the house of Alejandro Piso. Alejandro said to Restituto, "Come
down, you fool, because I am going to let you die with your chickens."
Restituto just kept silent. Alejandro returned to his house hurriedly. He came
back with a bolo in his hand. "That Exhibit 1 is the very bolo. When he
arrived at the house of Restituto, he immediately boloed a piece of banana
tree and another tree was cut. So I shouted to Alejandro, 'you are still
challenging Restituto when in fact he does not accept your challenge and he
would not fight with you.' Then after that Alejandro turned at me and he
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 67
said, 'You do not have anything to do with us. You are going to intervene in
this matter? You, too?' After I heard him saying that way, I immediately
pulled out the rope of my carabao with the belief that the devil entered on
him. After that, I went home." About the character of Piso, the witness said:
"He was a troublesome fellow. He even gave blows to some small children,
who were troubling him. His father-in-law, my second-grade cousin was
driven by him sometimes. His two brothers-in-law were even chased by him
with bolo. He chased his father-in-law for whatever cause and anything he
might have." Alejandro Piso "was about 40 years old more or less. He was
physically well-built."
Restituto Bauden testified that in the afternoon of August 2, after buying
viands from the town, he went home. Not finding there his wife, "I went
down immediately and went to my camote plantation. I tried to look for my
Mrs. who, I believe, was there, digging some camotes, but I did not see her
there. I stood up and look somewhere and I saw a person in the middle of
my corn field. I saw him gathering my ears of corn, so I approached near
him, and at a distance of about 10 brazas, I recognized him to be 'Kokoy',"
my uncle Alejandro Piso. "I told him, 'what are you doing Kokoy ? You
yourself are stealing my corn.' When he heard me, he immediately addressed
to me: 'Fool'. At the same time, he rushed toward me, ran after me and at
the same time, stoning me. He said, 'Wait for me. I will finish you.' Just after
I arrived at home, he also came. He threw stone at my house. I was inside
my house. He saw my chickens, which were in his rice field so he stoned the
chickens. My chicken was hit and killed. After killing the chicken he went
back to my house and said: 'You come down, fool, I will also let you die with
your chicken.' As he did not hear anything, he went home to his house. A
few minutes after, he came back with a bolo. When he arrived at the stairs
of my house, he boloed the two banana trees. After he had cut two banana
trees, he shouted, 'Come down, fool.' Because my house was very low that if
one would stand up, his breast would be seen inside my house, when I saw
him with the intention of getting inside my house, I was frightened, so I
pulled out a bar of wood by the window of my house to be free from danger.
I went down around the house, so when I was already down, he met me and
said: ' You are here now' in the attitude of stabbing me with his bolo. So, I
immediately hit him in his right hand. After he had dropped his bolo, I
immediately picked it up. When he saw that I was picking up his bolo, he
immediately grabbed the piece of wood, which I was holding. So, when I
saw him, I immediately stopped him with his bolo. I retreated back. As I
retreated, he followed me with the intention to hit me with the piece of wood
he took from me. He struck me, but every time I parried with the bolo that I
have. While he was chasing me we were able to reach the rice paddies.

Because he was trying to strike me with the cane, I boloed him several
times. He staggered and fell down. Upon seeing him fall down, I went to the
house of my brother, who is sick. I found my Mrs. and the children. I kissed
my wife and children and told them: 'You have got to live alone because I
have killed Kokoy.' Then I told my brother, who is sick, 'You have to take
care of my children because I am going to town.' I surrendered to the
policeman." Exhibit 1 is the bolo of deceased Piso. Piso is bigger than the
accused, although the accused is taller.
The facts proved show that accused, in killing -Piso, acted in legitimate self-
defense. The act of the deceased who intended to attack the accused with a
deadly weapon, a bolo, followed by threatening words, constitute an
unlawful aggression and it is lawful for the one assaulted to repel such act of
force, "During an unlawful attack by another, and while a struggle is going
on, and the danger to his person or to his life continues, the party assaulted
has a right to repel the danger by wounding his adversary and if necessary
to disable him. This is justifiable homicide." (United States vs. Molina, 19
Phil., 227.)
The accused in this case cannot be f ound guilty by this Supreme Court
without reversing itself when in 1917 it ruled as follows:
" 'The defendant was where he had the right to be, when the deceased
advanced upon him in a threatening manner, and with a deadly weapon; and
if the accused did not provoke the assault and had at the time reasonable
grounds to believe and in good faith believed, that the deceased intended to
take his life or do him great bodily harm, he was not obliged to retreat, nor
consider whether he could safely retreat, but was entitled to stand his
ground and meet any attack made upon him with a deadly weapon, in such
a way and with such force as, under all the circumstances, he, at the
moment, honestly believed, and had reasonable grounds to believe, was
necessary to save his own life or to protect himself from great bodily injury.'"
(United States vs. Domen [1917], 37 Phil., 57; Beard vs. United States
[1894], 158 U. S., 550; Erwin vs. State [1876], 29 Ohio St., 186.)
We believe that the foregoing words of the Supreme Court embody the
correct legal philosophy on the question of self-defense and justifiable
homicide. A person who is assaulted, who is the object of unlawful
aggression, is not obliged to retreat, nor consider whether he could safely
retreat, but is entitled "to stand his ground and meet any attack made upon
him with a deadly weapon, in such a way and with such f orce as, under all
the circumstances, he, at the moment, honestly believed, and had
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reasonable grounds to believe, was necessary to save his own life or to
protect himself from great bodily injury."
This is what accused Bauden did. Upon surprising Piso stealing his corn,
Bauden merely called the attention of the thief to his act. The transgressor of
the law, instead of humbly accepting his guilt, with shocking insolence,
assumed the role of the offended party, as if he was the one being robbed of
his property, and insulted, pursued and stoned Bauden, the real victim. Since
then, Bauden had a perfect right to stand his ground to face his assailant,
and with manly courage repel as effectively as he could the illegal aggression
of the deceased. But because of excessive prudence or, perhaps, due to his
pusillanimous reluctance to meet the challenge of the aggressor, he fled to
his house. Emboldened by the retreat of Bauden, Piso killed the former's
chicken, went home to fetch his bolo, cut with it two banana trees of
Bauden, stoned the house of Bauden, insulted again Bauden, menaced him
with death, and for said purpose intended to get inside Bauden's house.
Under this situation, Bauden says: "I was f rightened, so I pulled out a bar of
wood by the window of my house to be free from danger. I went down
around the house, so when I was already down, he met me and said: 'You
are here now' in the attitude of stabbing me with his bolo. So, I immediately
hit him in his right hand."' It appears from the circumstances that the
situation had placed Bauden in such a position that, even if he wanted to, he
could not retreat without exposing himself to the imminent danger of being
stabbed at his back, in the same way as Piso cut the banana trees with his
bolo, and killed without any opportunity of resisting or defending himself, as
his chicken was killed by Piso. Like grabbing a red-hot nail, Bauden pulled
out a piece of wood by the window of his house, the best defensive weapon
which accused could lay hands on under the circumstances, and went down
the house to defend himself the best he could, instead of remaining in his
house, where he had no freedom of movements to elude the impending
attack, and apathetically wait for his sure death at the hands of his
aggressor.
The majority opine that Bauden should have remained in his house and
waited for Piso to come in and then hit him with the piece of wood on the
theory that, in a personal encounter, the one Who is in a lower position is at
a disadvantage. We disagree. Piso had the following advantages: (1) of
being armed with a bolo, the deadliest weapon in the hands of barrio folks;
(2) of coming from outside the house, Piso had the necessary space for
freedom of movements and, therefore, to brandish effectively his bolo; (3)
located in a lower position, it was easy for Piso to immediately disable
Bauden by stabbing either of his legs which were within easy reach; (4)

Bauden could not, inside the house, make effective use of the piece of wood,
because in wielding it, it was liable to be hampered by the sidings of his
small house; and (5) if the floor of the house is made of strips of bamboo, as
usually is the case in small houses in our country, it would not give sure
footing for one who is struggling for his life, because it is slippery and
springy.
But, even in the false hypothesis that the majority's theory is correct, it is too
much to expect that Bauden should have adopted it necessarily. Because his
judgment of what was best for his defense and self-protection did not
coincide with what the majority was expecting of him, it is not right to find
him guilty of so serious a crime as homicide. Let us remember that Bauden is
not endowed with the same mental perspicuity by which the members of the
Supreme Court were able to be placed in the highest tribunal of the land;
that Bauden had not the benefit of the weeks and months we employed in
studying what he should have done under the circumstances; that he had
not the benefit of enlightenment from briefs of competent lawyers; that he
had not the advantage of a thorough deliberation with jurists and men of
ability as Justices of the Supreme Court; and that even we, with all the
benefits and advantages that were denied Bauden, are not unanimous in the
opinion that Bauden erred in his judgment as to the best means to save his
life.
Because Bauden went down the house armed with a piece of wood, the
majority maintain that he accepted Piso's challenge and, by exposing himself
to the contingencies of a struggle, he can not invoke with success the legal
protection for having acted in legitimate self-defense. Why? Does self-
defense preclude the contingencies of a struggle? Had these contingencies
anything to do to change the nature of self-defense and to make what is
legitimate illegitimate?
The acceptance of a challenge, with or without contingencies, can not make
illegal a legitimate self-defense. In fact no self-defense can be offered
without accepting the challenge of an aggressor. The acceptance of a
challenge from an aggressor is an essential and indispensable element of
self-defense. ense,
Evidently, the prosecution, the lower court, and the majority of the Justices
taking part in this case would have it that Bauden, on going down the house
armed with a piece of wood, should have avoided meeting Piso by fleeing in
a shameful and cowardly manner. Brushing aside the question of moral and
legal philosophy involved, which we shall presently discuss, no one can deny
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 69
that an honest difference of opinion may arise as to the effectiveness of the
escape as a means, not only to end trouble, but to save Bauden's or even
Piso's life. The record is completely silent as to who, between the two actors
in the bloody drama, was the better runner; and there is no assurance that if
Bauden should flee for his life, Piso would not overtake him. Placed at a
distance remote from the scene of the happenings, lacking sufficient
information or evidence as to the physical and athletic abilities of Piso and
Bauden, we should be acting against the most elemental rules of judicial
wisdom, if we should rashly pronounce and conclude that, if Bauden had
fled, all would have the happy ending of children's tales.
Logic and reason advise us that the course taken by Bauden was, he
honestly believed, the best to save his life; and if he did not flee when he
went down armed with a piece of wood, it was because he was convinced
that in the supreme crisis of his life no other alternative was open to him. If,
by fleeing, he believed he could save his life, there is ground and reason to
assume that he would run again, considering that when, for the first time, he
was pursued and stoned by Piso, he ran for cover to his small house where
Piso continued stoning him, instead of meeting his assailant.
In the serene atmosphere of our individual offices in the Supreme Court, by
giving f ree reign to our imagination, we may coolly reflect upon physical
probabilities and possibilities in order that we may determine what would
have been wiser for Bauden to do to save his life from Piso's criminal
aggression. Let us not be unjust by condemning Bauden because he followed
a course which we do not believe to be the best. In the fleeting moments at
his disposal, he had to make his decision with the speed of a flash and take
action without an instant's delay.
The next question appears to us to be even more serious and
transcendental. In the face of the illegal attack, the brutal onslaught, the
criminal aggression, what would the victim do? To give ground, to retreat, to
flee, or to accept destruction with fatalistic attitude? Or, instead, should he
stand his ground, valiantly face the aggressor, and meet and crush the
challenge? There are opposing points of view, irreconcilable philosophies; but
we must not hesitate in choosing the point of view and philosophy which, to
our mind, is in conformity with the highest standards of moral law and
justice.
Arguments may be advanced in favor of the attitude expressed in the
Christian injunction that if one is slapped in the face, one should also offer
the other, and that of the Gandhian political philosophy of non-resistance

and civil disobedience. But, however, laudable the attitude may be when
viewed from the purely moral light, it appears to us to be futile in the face of
realities. The philosophy of appeasement is irretrievably bankrupt. It is a
philosophy that serves only to encourage more lawlessness and to embolden
criminals. Chamberlain and Daladier practised appeasement at Munich in the
mistaken belief that they were saving peace. They sacrificed Czechoslovakia
and threw chunks of that nation to the voracity of the Hitlerian tiger, the
Nazi Moloch. Peace was not saved. The criminal aggressors became stronger
and the defenders of democracy weaker. As a result, many millions of
human beings all over the world were sacrificed in the greatest hecatomb
known in history.
It is already a well-known maxim that the best def ense is offense. The most
effective way of protecting the victim of an illegal aggression is to liquidate
or annihilate the aggressor. The aggressor, no matter whether he is an
individual or a nation, acts at his risk. The victim of an aggression is entitled
to use, in the protection of his rights, the most effective means to repel the
aggression. We are unwilling to advocate a legal philosophy that would
compel the victim of an aggression to retreat when, on being attacked by an
aggressor, he can in his own judgment defend himself better by counter-
attacking. We can not see any social usefulness in a philosophy of cowardice
for peaceful and law-abiding citizens. We can not find any moral justification
in allowing offenders and criminals to having their own way freely, by
admonishing the victims to submit or retreat, under penalty of not being
entitled to invoke the benefits of legitimate self-defense in case they happen
to be more fortunate in the struggle.
Democracy must be assertive and dynamic. The rights and liberties of the
people require the positive qualities of vigilance, courage, manliness and
fighting spirit to assert and exercise them. The struggle of law began more
than fifty thousand years ago, when human beings began to appear on
earth, and must go on perpetually if humanity is to survive. The fight for
human rights is essential for the survival of man. The negative qualities of
pusillanimity, of defeatism, of relinquishment, of resignation, of slavish
surrender, of servile submission, of giving the back to aggressors, of
avoiding to meet criminals, are incompatible with law and justice. They serve
only as a stimulus to encourage and embolden aggressors and criminals. Law
and order may not be kept by fatalistic passivity, nor by the habit of fear in
the face of blustering bullies or by panic at any menace or danger coming
from would-be assassins. Criminals can not be stopped by unconditional
surrender or timorous evasion of the victims. The most peaceful democracy
in the world had to invent and develop the most powerful weapons, including
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 70
the atomic bomb, to crush and defeat the aggressor nation. We hate to
imagine what would have happened to the democratic countries, including
our own, if the democracies had followed the policy of retreat and evasion,
in pursuance of which victim Bauden has been prosecuted and is to be
condemned to long years of imprisonment as a criminal, only because he
was fortunate enough, in trying to save his life, in killing his would-be killer,
We refuse to give our approval to any judicial doctrine that, in the final
result, will make of our law-abiding citizens effeminate weaklings who would,
at the mere sight of an insolent aggressor, run for safety, although armed,
prepared, and ready to effectively defend themselves and to crush the
aggression. That doctrine will make of the swaggering aggressors, under a
regime of terror, flaunting a new version of the Nazi gammadion, the
masters of the situation, and the rest of the population will be constituted by
cowering slaves.
Legitimate self-defense can not mean retreat, renunciation, or submission.
Legitimate self-defense means the assertion of one's own rights by effective
measures against all illegal onslaughts. It implies not giving ground, but
resistance against invasion. It requires counter-attack to nullify and defeat a
criminal attack. It does not admit surrender to criminal offenders; it indicates
physical repulsion, by destruction if need be, of the illegal attackers. The
aggressors act at the risk of their lives. By their criminal aggression, they
forfeit for themselves the protection of the law. That is what makes legal,
justifiable, and just the reasonable physical means employed by the victim in
his defense.
For all the foregoing, we vote for the reversal of the lower court's decision
and for the complete acquittal of Restituto Bauden of the crime of homicide
imputed to him, he having acted only in legitimate self-defense.

G.R. Nos. 86883-85. January 29, 1993.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NORBERTO
MANERO, JR., EDILBERTO MANERO, ELPIDIO MANERO, SEVERINO
LINES, RUDY LINES, EFREN PLEÑAGO, ROGER BEDAÑO, RODRIGO
ESPIA, ARSENIO VILLAMOR, JR., JOHN DOE and PETER DOE,
accused. SEVERINO LINES, RUDY LINES, EFREN PLEÑAGO and
ROGER BENDAÑO, accused-appellants.
Criminal Law; Murder; Defense of Alibi; Requirement of physical impossibility
for accused to be at the scene of the crime.—It is axiomatic that the accused
interposing the defense of alibi must not only be at some other place but
that it must also be physically impossible for him to be at the scene of the
crime at the time of its commission. Considering the failure of appellants to
prove the required physical impossibility of being present at the crime scene,
as can be readily deduced from the proximity between the places where
accused-appellants were allegedly situated at the time of the commission of
the offenses and the locus criminis, the defense of alibi is definitely feeble.
After all, it has been the consistent ruling of this Court that no physical
impossibility exists in instances where it would take the accused only fifteen
to twenty minutes by jeep or tricycle, or some one-and-a half hours by foot,
to traverse the distance between the place where he allegedly was at the
time of commission of the offense and the scene of the crime. Recently, We
ruled that there can be no physical impossibility even if the distance between
two places is merely two (2) hours by bus. More important, it is wellsettled
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 71
that the defense of alibi cannot prevail over the positive identification of the
authors of the crime by the prosecution witnesses.
Same; Same; Conspiracy.—There is conspiracy when two or more persons
come to an agreement to commit a crime and decide to commit it. It is not
essential that all the accused commit together each and every act
constitutive of the offense. It is enough that an accused participates in an
act or deed where there is singularity of purpose, and unity in its execution is
present. The findings of the court a quo unmistakably show that there was
indeed a community of design as evidenced by the concerted acts of all the
accused.
Same; Civil liability arising from criminal acts; Moral damages; Juridical
person not entitled to moral damages.—The award of moral damages in the
amount of P100,000.00 to the congregation, the Pontifical Institute of
Foreign Mission (PIME) Brothers, is not proper. There is nothing on record
which indicates that the deceased effectively severed his civil relations with
his family, or that he disinherited any member thereof, when he joined his
religious congregation. As a matter of fact, Fr. Peter Geremias of the same
congregation, who was then a parish priest of Kidapawan, testified that "the
religious family belongs to the natural family of origin." Besides, as We
already held, a juridical person is not entitled to moral damages because, not
being a natural person, it cannot experience physical suffering or such
sentiments as wounded feelings, serious anxiety, mental anguish or moral
shock. It is only when a juridical person has a good reputation that is
debased, resulting in social humiliation, that moral damages may be
awarded.
Same; Same; Same; Heirs must prove moral suffering; Award of exemplary
damages proper.—It is elementary that in order that moral damages may be
awarded there must be proof of moral suffering. However, considering that
the brutal slaying of Fr. Tulio Favali was attended with abuse of superior
strength, cruelty and ignominy by deliberately and inhumanly augmenting
the pain and anguish of the victim, outraging or scoffing at his person or
corpse, exemplary damages may be awarded to the lawful heirs, even
though not proved nor expressly pleaded in the complaint, and the amount
of P100.000.00 is considered reasonable.
APPEAL from the judgment of the Regional Trial Court of Kidapawan,
Cotabato. Estañol, J.
The facts are stated in the opinion of the Court.

The Solicitor General for plaintiff-appellee.
Romeo P. Jorge for accused-appellants.
BELLOSILLO, J.:
This was gruesome murder in a main thoroughfare an hour before sundown.
A hapless foreign religious minister was riddled with bullets, his head
shattered into bits and pieces amidst the revelling of his executioners as they
danced and laughed around their quarry, chanting the tune "Mutya Ka
Baleleng", a popular regional folk song, kicking and scoffing at his prostrate,
miserable, spiritless figure that was gasping its last. Seemingly unsatiated
with the ignominy of their manslaughter, their leader picked up pieces of the
splattered brain and mockingly displayed them before horrified spectators.
Some accounts swear that acts of cannibalism ensued, although they were
not sufficiently demonstrated. However, for their outrageous feat, the
gangleader already earned the monicker "cannibal priest-killer" But, what is
indubitable is that Fr. Tulio Favali1 was senselessly killed for no apparent
reason than that he was one of the Italian Catholic missionaries laboring in
heir vineyard in the hinterlands of Mindanao. 2
In the aftermath of the murder, police authorities launched a massive
manhunt which resulted in the capture of the perpetrators except Arsenio
Villamor, Jr., and two unidentified persons who eluded arrest and still remain
at large.
Informations for Murder,3 Attempted Murder4 and Arson5 were accordingly
filed against those responsible for the frenzied orgy of violence that fateful
day of 11 April 1985. As these cases arose from the same occasion, they
were all consolidated in Branch 17 of the Regional Trial Court of Kidapawan,
Cotabato.6
After trial, the court a quo  held —
WHEREFORE . . . the Court finds the accused Norberto
Manero, Jr. alias Commander Bucay, Edilberto Manero alias
Edil, Elpidio Manero, Severino Lines, Rudy Lines, Rodrigo
Espia alias Rudy, Efren Pleñago and Roger Bedaño GUILTY
beyond reasonable doubt of the offense of Murder, and with
the aggravating circumstances of superior strength and
treachery, hereby sentences each of them to a penalty of
imprisonment of reclusion perpetua; to pay the Pontifical
Institute of Foreign Mission (PIME) Brothers, the
congregation to which Father Tulio Favali belonged, a civil
indemnity of P12,000.00; attorney's fees in the sum of
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 72
P50,000.00 for each of the eight (8) accused or a total sum
of P400,000.00; court appearance fee of P10,000.00 for
every day the case was set for trial; moral damages in the
sum of P100,000.00; and to pay proportionately the costs.
Further, the Court finds the accused Norberto Manero, Jr.
alias Commander Bucay GUILTY beyond reasonable doubt of
the offense of Arson and with the application of the
Indeterminate Sentence Law, hereby sentences him to an
indeterminate penalty of imprisonment of not less than four
(4) years, nine (9) months, one (1) day of  prision
correccional, as minimum, to six (6) years of prision
correccional, as maximum, and to indemnify the Pontifical
Institute of Foreign Mission (PIME) Brothers, the
congregation to which Father Tulio Favali belonged, the sum
of P19,000.00 representing the value of the motorcycle and
to pay the costs.
Finally, the Court finds the accused Norberto Manero, Jr.,
alias Commander Bucay, Edilberto Manero alias Edil, Elpidio
Manero, Severino Lines, Rudy Lines, Rodrigo Espia alias
Rudy, Efren Pleñago and Roger Bedaño GUILTY beyond
reasonable doubt of the offense of Attempted Murder and
with the application of the Indeterminate Sentence Law,
hereby sentences each of them to an indeterminate penalty
of imprisonment of not less than two (2) years, four (4)
months and one (1) day of prision correccional, and
minimum, to eight (8) years and twenty (20) days of prision
mayor, as maximum, and to pay the complainant Rufino
Robles the sum of P20,000.00 as attorney's fees and
P2,000.00 as court appearance fee for every day of trial and
to pay proportionately the costs.
The foregoing penalties shall be served by the said accused
successively in the order of their respective severity in
accordance with the provisions of Article 70 of the Revised
Penal Code, as amended.7
From this judgment of conviction only accused Severino Lines, Rudy Lines,
Efren Pleñago and Roger Bedaño appealed with respect to the cases for
Murder and Attempted Murder. The Manero brothers as well as Rodrigo
Espia did not appeal; neither did Norberto Manero, Jr., in the Arson case.
Consequently, the decision as against them already became final.
Culled from the records, the facts are: On 11 April 1985, around 10:00
o'clock in the morning, the Manero brothers Norberto Jr., Edilberto and
Elpidio, along with Rodrigo Espia, Severino Lines, Rudy Lines, Efren Pleñago

and Roger Bedaño, were inside the eatery of one Reynaldo Diocades at Km.
125, La Esperanza, Tulunan, Cotabato. They were conferring with Arsenio
Villamor, Jr., private secretary to the Municipal Mayor of Tulunan, Cotabato,
and his two (2) unidentified bodyguards. Plans to liquidate a number of
suspected communist sympathizers were discussed. Arsenio Villamor, Jr.
scribbled on a cigarette wrapper the following "NPA v. NPA, starring Fr.
Peter, Domingo Gomez, Bantil, Fred Gapate, Rene alias Tabagac and
Villaning." "Fr. Peter" is Fr. Peter Geremias, an Italian priest suspected of
having links with the communist movement; "Bantil" is Rufino Robles, a
Catholic lay leader who is the complaining witness in the Attempted Murder;
Domingo Gomez is another lay leader, while the others are simply
"messengers". On the same occasion, the conspirators agreed to Edilberto
Manero's proposal that should they fail to kill Fr. Peter Geremias, another
Italian priest would be killed in his stead.8
At about 1:00 o'clock that afternoon, Elpidio Manero with two (2)
unidentified companions nailed a placard on a street-post beside the eatery
of Deocades. The placard bore the same inscriptions as those found on the
cigarette wrapper except for the additional phrase "versus Bucay, Edil and
Palo." Some two (2) hours later, Elpidio also posted a wooden placard
bearing the same message on a street cross-sign close to the eatery. 9
Later, at 4:00 o'clock, the Manero brothers, together with Espia and the four
(4) appellants, all with assorted firearms, proceeded to the house of "Bantil",
their first intended victim, which was also in the vicinity of
Deocades' carinderia. They were met by "Bantil" who confronted them why
his name was included in the placards. Edilberto brushed aside the query;
instead, he asked "Bantil" if he had any qualms about it, and without any
provocation, Edilberto drew his revolver and fired at the forehead of "Bantil".
"Bantil" was able to parry the gun, albeit his right finger and the lower
portion of his right ear were hit. Then they grappled for its possession until
"Bantil" was extricated by his wife from the fray. But, as he was running
away, he was again fired upon by Edilberto. Only his trousers were hit.
"Bantil" however managed to seek refuge in the house of a certain Domingo
Gomez. 10 Norberto, Jr., ordered his men to surround the house and not to
allow any one to get out so that "Bantil" would die of hemorrhage. Then
Edilberto went back to the restaurant of Deocades and pistol-whipped him
on the face and accused him of being a communist coddler, while appellants
and their cohorts relished the unfolding drama. 11
Moments later, while Deocades was feeding his swine, Edilberto strewed him
with a burst of gunfire from his M-14 Armalite. Deocades cowered in fear as
he knelt with both hands clenched at the back of his head. This again drew
boisterous laughter and ridicule from the dreaded desperados.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 73
At 5:00 o'clock, Fr. Tulio Favali arrived at Km. 125 on board his motorcycle.
He entered the house of Gomez. While inside, Norberto, Jr., and his co-
accused Pleñago towed the motorcycle outside to the center of the highway.
Norberto, Jr., opened the gasoline tank, spilled some fuel, lit a fire and
burned the motorcycle. As the vehicle was ablaze, the felons raved and
rejoiced. 12
Upon seeing his motorcycle on fire, Fr. Favali accosted Norberto, Jr. But the
latter simply stepped backwards and executed a thumbs-down signal. At this
point, Edilberto asked the priest: "Ano ang gusto mo, padre (What is it you
want, Father)? Gusto mo, Father, bukon ko ang ulo mo (Do you want me,
Father, to break your head)?" Thereafter, in a flash, Edilberto fired at the
head of the priest. As Fr. Favali dropped to the ground, his hands clasped
against his chest, Norberto, Jr., taunted Edilberto if that was the only way he
knew to kill a priest. Slighted over the remark, Edilberto jumped over the
prostrate body three (3) times, kicked it twice, and fired anew. The burst of
gunfire virtually shattered the head of Fr. Favali, causing his brain to scatter
on the road. As Norberto, Jr., flaunted the brain to the terrified onlookers,
his brothers danced and sang "Mutya Ka Baleleng" to the delight of their
comrades-in-arms who now took guarded positions to isolate the victim from
possible assistance. 13
In seeking exculpation from criminal liability, appellants Severino Lines, Rudy
Lines, Efren Pleñago and Roger Bedaño contend that the trial court erred in
disregarding their respective defenses of alibi which, if properly appreciated,
would tend to establish that there was no prior agreement to kill; that the
intended victim was Fr. Peter Geremias, not Fr. Tulio Favali; that there was
only one (1) gunman, Edilberto; and, that there was absolutely no showing
that appellants cooperated in the shooting of the victim despite their
proximity at the time to Edilberto.
But the evidence on record does not agree with the arguments of accused-
appellants.
On their defense of alibi, accused brothers Severino and Rudy Lines claim
that they were harvesting palay the whole day of 11 April 1985 some one
kilometer away from the crime scene. Accused Roger Bedaño alleges that he
was on an errand for the church to buy lumber and nipa in M'lang, Cotabato,
that morning of 11 April 1985, taking along his wife and sick child for medical
treatment and arrived in La Esperanza, Tulunan, past noontime.
Interestingly, all appellants similarly contend that it was only after they heard
gunshots that they rushed to the house of Norberto Manero, Sr., Barangay
Captain of La Esperanza, where they were joined by their fellow CHDF
members and co-accused, and that it was only then that they proceeded
together to where the crime took place at Km. 125.

It is axiomatic that the accused interposing the defense of alibi must not only
be at some other place but that it must also be physically impossible for him
to be at the scene of the crime at the time of its commission. 14
Considering the failure of appellants to prove the required physical
impossibility of being present at the crime scene, as can be readily deduced
from the proximity between the places where accused-appellants were
allegedly situated at the time of the commission of the offenses and
the locus criminis, 15 the defense of alibi is definitely feeble. 16After all, it has
been the consistent ruling of this Court that no physical impossibility exists in
instances where it would take the accused only fifteen to twenty minutes by
jeep or tricycle, or some one-and-a-half hours by foot, to traverse the
distance between the place where he allegedly was at the time of
commission of the offense and the scene of the crime. 17 Recently, we ruled
that there can be no physical impossibility even if the distance between two
places is merely two (2) hours by bus. 18 More important, it is well-settled
that the defense of alibi cannot prevail over
the positive identification of the authors of the crime by the prosecution
witnesses. 19
In the case before Us, two (2) eyewitnesses, Reynaldo Deocades and Manuel
Bantolo, testified that they were both inside the eatery at about 10:00
o'clock in the morning of 11 April 1985 when the Manero brothers, together
with appellants, first discussed their plan to kill some communist
sympathizers. The witnesses also testified that they still saw the appellants in
the company of the Manero brothers at 4:00 o'clock in the afternoon when
Rufino Robles was shot. Further, at 5:00 o'clock that same afternoon,
appellants were very much at the scene of the crime, along with the Manero
brothers, when Fr. Favali was brutally murdered. 20 Indeed, in the face of
such positive declarations that appellants were at the locus criminis from
10:00 o'clock in the morning up to about 5:00 o'clock in the afternoon, the
alibi of appellants that they were somewhere else, which is negative in
nature, cannot prevail. 21 The presence of appellants in the eatery at Km.
125 having been positively established, all doubts that they were not privy to
the plot to liquidate alleged communist sympathizers are therefore removed.
There was direct proof to link them to the conspiracy.
There is conspiracy when two or more persons come to an agreement to
commit a crime and decide to commit it. 22It is not essential that all the
accused commit together each and every act constitutive of the offense. 23 It
is enough that an accused participates in an act or deed where there is
singularity of purpose, and unity in its execution is present. 24
The findings of the court a quo  unmistakably show that there was indeed a
community of design as evidenced by the concerted acts of all the accused.
Thus —
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 74
The other six accused, 25 all armed with high powered
firearms, were positively identified with Norberto Manero, Jr.
and Edilberto Manero in the carinderia of Reynaldo Deocades
in La Esperanza, Tulunan, Cotabato at 10:00 o'clock in the
morning of 11 April 1985 morning . . . they were outside of
the carinderia by the window near the table where Edilberto
Manero, Norberto Manero, Jr., Jun Villamor, Elpidio Manero
and unidentified members of the airborne from Cotabato
were grouped together. Later that morning, they all went to
the cockhouse nearby to finish their plan and drink tuba.
They were seen again with Edilberto Manero and Norberto
Manero, Jr., at 4:00 o'clock in the afternoon of that day near
the house of Rufino Robles (Bantil) when Edilberto Manero
shot Robles. They surrounded the house of Domingo Gomez
where Robles fled and hid, but later left when Edilberto
Manero told them to leave as Robles would die of
hemorrhage. They followed Fr. Favali to Domingo Gomez'
house, witnessed and enjoyed the burning of the motorcycle
of Fr. Favali and later stood guard with their firearms ready
on the road when Edilberto Manero shot to death Fr. Favali.
Finally, they joined Norberto Manero, Jr. and Edilberto
Manero in their enjoyment and merriment on the death of
the priest. 26
From the foregoing narration of the trial court, it is clear that appellants were
not merely innocent bystanders but were in fact vital cogs in perpetrating the
savage murder of Fr. Favali and the attempted murder of Rufino Robles by
the Manero brothers and their militiamen. For sure, appellants all assumed a
fighting stance to discourage if not prevent any attempt to provide
assistance to the fallen priest. They surrounded the house of Domingo
Gomez to stop Robles and the other occupants from leaving so that the
wounded Robles may die of hemorrhage. 27Undoubtedly, these were overt
acts to ensure success of the commission of the crimes and in furtherance of
the aims of the conspiracy. The appellants acted in concert in the murder of
Fr. Favali and in the attempted murder of Rufino Robles. While accused-
appellants may not have delivered the fatal shots themselves, their collective
action showed a common intent to commit the criminal acts.
While it may be true that Fr. Favali was not originally the intended victim, as
it was Fr. Peter Geremias whom the group targetted for the kill,
nevertheless, Fr. Favali was deemed a good substitute in the murder as he
was an Italian priest. On this, the conspirators expressly agreed. As witness
Manuel Bantolo explained 28 —

Q Aside from those persons listed in that
paper to be killed, were there other persons
who were to be liquidated?
A There were some others.
Q Who were they?
A They said that if they could not kill those
persons listed in that paper then they will
(sic) kill anyone so long as he is (sic) an
Italian and if they could not kill the persons
they like to kill they will (sic) make Reynaldo
Deocades as their sample.
That appellants and their co-accused reached a common understanding to
kill another Italian priest in the event that Fr. Peter Geremias could not be
spotted was elucidated by Bantolo thus 29 —
Q Who suggested that Fr. Peter be the first
to be killed?
A All of them in the group.
Q What was the reaction of Norberto
Manero with respect to the plan to kill Fr.
Peter?
A He laughed and even said, "amo ina"
meaning "yes, we will kill him ahead."
x x x           x x x          x x x
Q What about Severino Lines? What was his
reaction?
A He also laughed and so conformed and
agreed to it.
Q Rudy Lines.
A He also said "yes".
Q What do you mean "yes"?
A He also agreed and he was happy and
said "yes" we will kill him.
x x x           x x x          x x x
Q What about Efren Pleñago?
A He also agreed and even commented
laughing "go ahead".
Q Roger Bedaño, what was his reaction to
that suggestion that should they fail to kill
Fr. Peter, they will (sic) kill anybody
provided he is an Italian and if not, they will
(sic) make Reynaldo Deocades an example?
A He also agreed laughing.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 75
Conspiracy or action in concert to achieve a criminal design being sufficiently
shown, the act of one is the act of all the other conspirators, and
the precise extent or modality of participation of each of them becomes
secondary. 30
The award of moral damages in the amount of P100,000.00 to the
congregation, the Pontifical Institute of Foreign Mission (PIME) Brothers, is
not proper. There is nothing on record which indicates that the deceased
effectively severed his civil relations with his family, or that he disinherited
any member thereof, when he joined his religious congregation. As a matter
of fact, Fr. Peter Geremias of the same congregation, who was then a parish
priest of Kidapawan, testified that "the religious family belongs to the natural
family of origin." 31 Besides, as We already held, 32 a juridical person is not
entitled to moral damages because, not being a natural person, it cannot
experience physical suffering or such sentiments as wounded feelings,
serious anxiety, mental anguish or moral shock. It is only when a juridical
person has a good reputation that is debased, resulting in social humiliation,
that moral damages may be awarded.
Neither can We award moral damages to the heirs of the deceased who may
otherwise be lawfully entitled thereto pursuant to par. (3), Art. 2206, of the
Civil Code, 33 for the reason that the heirs never presented any evidence
showing that they suffered mental anguish; much less did they take the
witness stand. It has been held 34 that moral damages and their causal
relation to the defendant's acts should be satisfactorily proved by the
claimant. It is elementary that in order that moral damages may be awarded
there must be proof of moral suffering. 35 However, considering that the
brutal slaying of Fr. Tulio Favali was attended with abuse of superior
strength, cruelty and ignominy by deliberately and inhumanly augmenting
the pain and anguish of the victim, outraging or scoffing at his person or
corpse, exemplary damages may be awarded to the lawful heirs, 36 even
though not proved nor expressly pleaded in the complaint, 37 and the amount
of P100,000.00 is considered reasonable.
With respect to the civil indemnity of P12,000.00 for the death of Fr. Tulio
Favali, the amount is increased to P50,000.00 in accordance with existing
jurisprudence, which should be paid to the lawful heirs, not the PIME as the
trial court ruled.
WHEREFORE, the judgment appealed from being in accord with law and the
evidence is AFFIRMED with the modification that the civil indemnity which is
increased from P12,000.00 to P50,000.00 is awarded to the lawful heirs of
the deceased plus exemplary damages of P100,000.00; however, the award
of moral damages is deleted.
Costs against accused-appellants.
SO ORDERED.

Cruz, Padilla and Griño-Aquino, JJ., concur.
G.R. No. 132330. November 28, 2000.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SPO1 JOSE
BANGCADO 1 and PO3 CESAR BANISA, accused-appellants.
Criminal Law; Murder; Evidence; Witnesses; Positive identification of
witnesses prevails over the simple denial of the accused.—The rule is that
positive identification of witnesses prevails over the simple denial of the
accused. It cannot be doubted that Clemente and Cogasi had a good view of
the faces of the accused.From the testimonies of various witnesses, including
PO3 Jimmy Baybay, one of the policemen who conducted Operation Kapkap,
the Skyview Restaurant was well-lighted. Banisa himself testified that
although the lighting may be “somewhat dim,” he could still recognize a
person from a distance of four (4) meters. This is relevant considering that
the two (2) groups were seated only one (1) table apart. Thus, Cogasi and
his friends were able to recognize their assailants as the persons who came
out from the Skyview Restaurant.
Same; Same; Same; Same; To prosper, alibi must be so convincing as to
preclude any doubt that the accused could not have been physically present
at the crime scene at the time of the incident.—The accusedappellants raise
the defense of alibi which is inherently weak. To prosper, alibi must be so
convincing as to preclude ally doubt that the accused could not have been
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 76
physically present at the crime scene at the time of the incident. The alibis of
the accused clearly show upon examination that this could not have been so.
Same; Same; Same; Same; Witnesses are to be weighed, not numbered, in
determining the credibility of witnesses and the value of each piece of
evidence; The testimony of a single witness, if credible and positive, is
sufficient to convict.—Although Clemente admitted to be suffering from
blurred vision, Cogasi’s positive identification of appellants could be sufficient
to establish their identities. Indeed, there is no law that requires that the
testimony of a single witness must be corroborated except, of course, when
expressly mandated. Witnesses are to be weighed, not numbered, in
determining the credibility of witnesses and the value of each piece of
evidence. In fact, the testimony of a single witness, if credible and positive,
is sufficient to convict, and must be given full faith and credence when no
reason to falsely testify is shown.
Same; Same; Same; Flight; Like the defense of alibi, non-flight cannot
prevail against the weight of positive identification of the accused.—While
flight of an accused is competent evidence to establish prima facie his guilt,
there is no law or principle that non-flight per se is proof, let alone conclusive
proof, of innocence. Much like the defense of alibi, nonflight cannot prevail
against the weight of positive identification of the accused.
Same; Same; Same; Motive; Motive is not essential to convict when there is
no doubt as to the identity of the culprit.—Accused-appellants insist that they
had no motive to shoot the victims and/or the complaining witnesses.
However, even, the absence of a known motive, the timehonored rule is that
motive is not essential to convict when there is no doubt as to the identity of
the culprit. Lack of motive does not preclude conviction when the crime and
the participation of the accused therein are definitely shown, particularly
when we consider how nowadays, it is a matter of judicial knowledge that
persons have killed or committed serious offense for no reason at all.
Same; Same; Same; Compromise; An offer of compromise from an
unauthorized person cannot amount to an admission of the party himself;
For a compromise to amount to an implied admission of guilt, the accused
should be present or at least had authorized the compromise.—But an offer
of compromise from an unauthorized person cannot amount to an admission
of the party himself. Although the Court has held in some cases that an
attempt of the parents of the accused to settle the case is an implied
admission of guilt, we believe that the better rule is that for a compromise to

amount to an implied admission of guilt, the accused should be present or at
least had authorized the compromise.
Same; Same; Same; Aggravating Circumstance; Treachery; It is settled that
qualifying circumstances cannot be presumed but must be established by
clear and convincing evidence as conclusively as the killing itself; Two
elements must concur for treachery to be considered.—Accusedappellants
deny the existence of treachery, nighttime and abuse of public position to
aggravate the commission of the crimes. It is settled that qualifying
circumstances cannot be presumed but must be established by clear and
convincing evidence, as conclusively as the killing itself. The defense alleges
that there is no evidence that accused-appellants made some preparation to
kill the victim in such a manner as to insure the execution of the crime or to
make it impossible or hard for the person attacked to defend himself. For
treachery to be considered, two (2) elements must concur: (a) the
employment of means of execution that gives the person attacked no
opportunity to defend himself or retaliate; and, (b) the means of execution
were deliberately or consciously adopted.
Same; Same; Same; Same; Abuse of Public Position; If the accused could
have perpetrated the crime without occupying his position, then there is no
abuse of public position.—For public position to be appreciated as an
aggravating circumstance, the public official must use his influence, prestige
and ascendancy which his office gives him in realizing his purpose. If the
accused could have perpetrated the crime without occupying his posit ion,
then there is no abuse of public position. Hence, that aggravating
circumstance cannot be appreciated here.
Same; Same; Same; Damages; 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 the damages;
Testimonial evidence is sufficient to establish a basis for which the court can
make a fair and reasonable estimate of the damages for the loss of earning
capacity.—The heirs are also entitled to damages for the loss of earning
capacity of the deceased Leandro Adawan. 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 the
damages. Testimonial evidence is sufficient to establish a basis for which the
court can make a fair and reasonable estimate of the damages for the loss of
earning capacity. Moreover, in fixing the damages for loss of earning
capacity of a deceased victim, the Court can, consider the nature of its
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 77
occupation, his educational attainment and the state of his health at the time
of his death.
Same; Same; Same; Same; Moral damages vis-a-vis compensatory damages
or civil indemnity are different from each other and should thus be awarded
separately.—Under present case law, the award of P50,000.00 for civil
indemnity is mandatory upon the finding of the fact of murder. Moral
damages, vis-a-vis compensatory damages or civil indemnity, are different
from each other and should thus be awarded separately. Thus, as explained
in People v. Victor, the indemnity authorized by our criminal law as civil
liability ex delicto for the offended party, in the amount authorized by the
prevailing judicial policy and aside from other established actual damages, is
itself equivalent to actual or compensatory damages in civil law. It is not to
be considered as moral damages thereunder, the latter being based on
different jural foundations and assessed by the court in the exercise of sound
discretion.
APPEAL from a decision of the Regional Trial Court of Baguio City, Br. 3.
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiff-appellee.
Danilo L. Bolislis for accused-appellant Bangcado.
Federico Mandapat, Jr. for accused-appellant Banisa. People vs.
DECISION
BELLOSILLO, J.:
SPO1 JOSE BANGCADO and PO3 CESAR BANISA appeal from the
decision of the Regional Trial Court of Baguio City convicting them of two (2)
counts of murder and two (2) counts of frustrated murder, imposing upon
them the corresponding prison terms, and to pay damages plus costs.[2]
The facts: On 27 June 1993, at around 8:30 in the evening, Pacson
Cogasi, Julio Clemente, Leandro Adawan and Richard Lino were at the
Skyview Restaurant, Magsaysay Avenue, Baguio City, drinking and listening
to folksongs. Moments later, a group of five (5) arrived and sat one table
away from Pacson Cogasi and his friends. Among the newcomers was a thin
person wearing a blue long-sleeved jacket, later identified as SPO1 Jose
Bangcado, and a heavier one wearing a t-shirt and maong pants, later
identified as PO3 Cesar Banisa. The rest of their group were not identified.

At that time, members of the police force of Baguio City were
conducting Operation Kapkap at the Skyview Restaurant. They however
exempted the table of PO3 Cesar Banisa as they knew him to be a fellow
policeman.
At around 9:00 o'clock that evening, Cogasi and his friends left the
restaurant to go home. They were residents of La Trinidad, Benguet. As they
went behind the restaurant where their Ford Fierra was parked, they noticed
SPO1 Jose Bangcado and PO3 Cesar Banisa following them. Cogasi and his
group recognized Bangcado and Banisa to be customers at Skyview
Restaurant. Bangcado and Banisa approached them. First, Banisa asked
Richard Lino for a light. Then Bangcado and Banisa asked the group if they
were willing to be frisked. Since the two (2) police officers were armed with
handguns and smelled of liquor, the group agreed to be frisked. As Leandro
Adawan stepped aside to urinate, Bangcado slapped him and then asked the
group where they came from. Their answer was, from Besao, Mt. Province,
except Clemente who said that he came from Balili, La Trinidad. Bangcado,
with Banisa standing guard behind him with a drawn gun, ordered Cogasi,
Clemente, Adawan and Lino to form a line against the Ford Fierra facing him
in that order. Adawan was only one meter away from Bangcado. Lino and
Cogasi were about 1-1/2 meters away, while Clemente, four (4) meters
away. Without any warning, Bangcado suddenly fired his gun in quick
succession at the four (4) persons lined up against the Ford Fierra. Cogasi
saw Adawan and Lino fall down. Cogasi then felt he was hit on the left side
of his neck and he also fell down. He managed however to crawl away and
run to the Hilltop where he was able to ask for help before falling
unconscious.
Cogasi woke up to find himself confined at the Baguio General Hospital
together with Clemente. There Cogasi learned that Lino and Adawan died
from gunshot wounds in their heads.Cogasi himself suffered a gunshot
wound at the neck, at the junction of his left jaw near the ear, while
Clemente received two (2) gunshot wounds on his right shoulder with one
(1) of the bullets being lodged just below his right eye.
After their release from the hospital, Cogasi and Clemente filed a
complaint with the NBI in Baguio City. On 8 July 1993, four (4) civilian males
were presented to Cogasi for identification by the NBI, but he told them that
the suspects were not among those present. Clemente did not participate in
the identification process because of his eye injury.
In the morning of 10 July 1993 Bangcado and Banisa reported for their
regular rank inspection at the La Trinidad Police Station. The policemen were
told to remain in formation after the inspection. Cogasi went around the
formation four (4) or five (5) times before pointing to Bangcado and then to
Banisa. Clemente also went around the formation but despite going around
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 78
longer than Cogasi, Clemente was unable to identify anybody. Clemente
started to point to James Tagle but withdrew his identification of him when
some people then present laughed and shouted "Hoy!" and "Sabali!"
meaning "Wrong!" or "Different!" Accused-appellants insist that Clemente
could not have made a reliable identification of them at the NBI and La
Trinidad line ups, nor even in open court, because his eye injury blurred his
vision.
The rule is that positive identification of witnesses prevails over the
simple denial of the accused. It cannot be doubted that Clemente and Cogasi
had a good view of the faces of the accused. From the testimonies of various
witnesses, including PO3 Jimmy Baybay, one of the policemen who
conducted Operation Kapkap, the Skyview Restaurant was well-
lighted.Banisa himself testified that although the lighting may be "somewhat
dim," he could still recognize a person from a distance of four (4) meters.
[3]
 This is relevant considering that the two (2) groups were seated only one
(1) table apart. Thus, Cogasi and his friends were able to recognize their
assailants as the persons who came out from the Skyview Restaurant.
The crime scene was illuminated by two (2) streetlights and the lights
coming from the nearby Garden Inn and various sari-sari stores. The fact
that the policemen who responded to the report of the incident had to use a
flashlight in their investigation did not prove that the area was so dark as to
preclude the identification of the persons involved. For one thing, the
policemen had to be careful not to overlook any piece of evidence, such as a
spent bullet. For another, SPO4 Antonio Naungayan of PNP Baguio City, who
was part of the investigating team, testified on cross-examination that even
if the area was not brightly lighted, one could still recognize people.
[4]
 According to Clemente, he was only four (4) meters away from his
attackers when they fired upon him and his friends. Cogasi was only 1-1/2
meters away while Adawan and Lino, who died on the spot, were each only
about a meter away.
It cannot be doubted that Cogasi and Clemente had enough time to
take a good look at their assailants faces who conversed with their victims,
ordered them to fall in line, frisked them one by one, and asked them
questions before shooting them. When Bangcado and Banisa leaned over to
frisk Cogasi and his friends, their faces must have only been inches away
from their victims; and when they ordered their victims to line up against the
vehicle, they stood only a few meters away.
Although Clemente admitted to be suffering from blurred vision, Cogasis
positive identification of appellants could be sufficient to establish their
identities. Indeed, there is no law that requires that the testimony of a single
witness must be corroborated except, of course, when expressly
mandated. Witnesses are to be weighed, not numbered, in determining the

credibility of witnesses and the value of each piece of evidence. In fact, the
testimony of a single witness, if credible and positive, is sufficient to convict,
[5]
 and must be given full faith and credence when no reason to falsely testify
is shown.[6]
Assuming arguendo that Clemente was unable to identify accused-
appellants during the line-up in La Trinidad as his right eye was still
bandaged from his injuries, he was able to make a positive identification in
open court. Neither is it material now that Clemente made some attempts to
point to policeman James Tagle for it seems clear that he withdrew his
identification.Besides, Clemente admitted candidly that he could not identify
anyone in the line-up since his right eye was still covered with a bandage
and was still suffering from blurred vision.
Further, the defense failed to shake Cogasis certainty, either when he
declared that he recognized accused-appellants as being those who were
earlier in the Skyview Restaurant, or when he pointed to them in the line-up
at La Trinidad. The fact that he took some five (5) minutes and had to go
around the line-up four (4) or five (5) times did not detract from his
credibility. Rather, it is to his credit that he took time to look closely into the
faces of more than twenty-four (24) or so similarly garbed men to make sure
that he did not make a mistake in identifying his assailants.
Neither should the defense attempt to mislead the Court by pointing out
that Cogasi was not able to identify Bangcado during the NBI line-up since it
is clear that that line-up did not include accused-appellants. Instead, it was
composed of four (4) civilians, none of whom he had ever seen before. Since
these four (4) had no connection with the crime, there was no reason for
Cogasi to implicate any of them in the murder.
The defense also points out that the policemen who
conducted Operation Kapkap indicated in their joint affidavit that they only
saw Banisa present inside the Skyview Restaurant, along with three (3)
unidentified companions. According to the defense, this only proves that
Bangcado was not there since the policemen personally knew Bangcado and
thus should have included him in their joint affidavit.
However, the theory of the trial court that the reason why they did not
see Bangcado with Banisa was because he went to the washroom or
elsewhere deserves credence. Considering that the Skyview Restaurant had
some thirty (30) to fifty (50) customers that night; that the four (4)
policemen were busy going around the tables conducting Operation KapKap;
that they did not approach the table of Banisa to frisk him and his
companions because they recognized him as a policeman, then it is evident
that their attention was elsewhere, and that they did not bother to inquire
whether Banisa had other fellow officers with him. Further, the policemen
testified that they were in the restaurant for only a few minutes.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 79
Further, PO Delfin Balan-eg, one of the policemen who
conducted Operation Kapkap, testified that he saw Bangcado and Banisa
drinking beer inside the restaurant. The defense tried to destroy his
credibility by establishing that he and the two (2) victims as well as the two
(2) complaining witnesses were related. However, it must be stressed, that
relationship, much less bias, cannot be established by the fact that two (2)
persons live in different barangays that form part of the same town.
The defense insist that neither could Cogasis testimony be given any
weight since his testimony in open court contradicted his sworn affidavit
executed immediately after the incident before the investigating
officer. While he testified that he saw the accused emerge from the Skyview
Restaurant, in his affidavit, he swore that their attackers actually alighted
from a red -colored car. The theory of the defense is that if the gunmen
alighted from a red or maroon colored car immediately before the shooting,
then they could not have come from the Skyview Restaurant, and vice versa.
An affidavit taken ex parte is judicially considered to be almost
incomplete and often inaccurate, sometimes from partial suggestions and
sometimes from want of suggestions and inquiries, without the aid of which
the witness may be unable to recall the connected circumstances necessary
for his accurate recollection of the incident. [7] Further, an examination of
Cogasis sworn statement shows, however, that there was actually no
contradiction. His testimony was as follows: "x x x I noticed a maroon car x x
x I noticed also two persons who were immediately following us went (sic)
near the parked maroon car and one of them opened the door at the drivers
side but immediately closed it."[8] Quite obviously, the two (2) persons who
emerged from the Skyview Restaurant intended to board the parked car but
changed their minds and, instead, followed Cogasi and his friends to the
Ford Fierra that was parked.
The accused-appellants raise the defense of alibi which is inherently
weak. To prosper, alibi must be so convincing as to preclude any doubt that
the accused could not have been physically present at the crime scene at the
time of the incident.[9] The alibis of the accused clearly show upon
examination that this could not have been so.
Bangcado testified that he stayed at home because he served his tour
of duty from 12:00 midnight to 8:00 a.m. the previous day. Thus, on the day
of the incident, he was at home where he slept, read the newspapers,
watched television and played with his one-year-and-seven-month old
daughter. After dinner, he took a nap until his mother-in-law woke him up
before 11:00 p.m. so he could report to the police station before 12:00
midnight. As police officer assigned to patrol his area of responsibility, his job
was to ride in the police vehicle going around La Trinidad. [10] This was

confirmed by Bangcado's mother-in-law Angela Gondales when she testified
for the accused.
Yet, Bangcado himself told the court that Central Pico, La Trinidad,
Benguet, where his mother-in-laws house stood, was only five (5) kilometers
away from Skyview Restaurant and could be negotiated in thirty (30)
minutes using a motor vehicle.[11] The fact that La Trinidad was only thirty
(30) minutes away from Baguio City was corroborated by Banisa himself.
[12]
 And Bangcados house is near a national highway where jeepneys pass by
on their way to Baguio City, which means, it was not impossible for
Bangcado to have left the house earlier than 11:00 p.m. and be in Baguio
City at the time of the incident.
The defense failed to establish with credible evidence that SPO1 Jose
Bangcado was on duty from 11:00 o'clock in the evening to 8:30 the
following morning. SPO4 Lilia Pascual, Records Custodian of the PNP at La
Trinidad, Benguet, testified that there was no record of the attendance of
PNP officers from June to December 1993. SPO4 Carlos Layagan, Bangcados
Patrol Section Supervisor, testified that on that day, Bangcado was present
for his regular tour of duty from 12:00 o'clock midnight to 8:00 o'clock the
following morning and conducted routine patrol by mobile, [13] but the incident
occurred at around 9:00 o'clock in the evening according to the police who
responded when the crime was reported to them. Thus, Bangcado had
plenty of time to do what he did and still go on his tour of duty. More
damaging was the admission of Layagan in his cross-examination that before
12:00 o'clock midnight of 27 June 1993 he was not in the company of SPO1
Jose Bangcado.[14]
The alibi of PO3 Cesar Banisa was even more incredible. He admitted
being at the Skyview Restaurant when Cogasi and his friends were there, but
claimed that he left with his brother to eat mami and siopao at the Baguio
First Hotel, which is only about a hundred (100) to a hundred and fifty (150)
meters away from Skyview Restaurant and could be reached in five (5)
minutes of walking.[15] He explained however that "this bold admission x x x
placing him within the vicinity of the crime scene shows his clear
conscience. For, if he was involved in the crime, he would naturally put
himself in other places." [16] His testimony was corroborated by Abelardo
Lucas who testified that he, along with Arsenio Palileng and Raymund
Banisa, accused-appellants brother, was with Banisa that night.
While flight of an accused is competent evidence to establish prima
facie his guilt, there is no law or principle that non-flight per se is proof, let
alone conclusive proof, of innocence.Much like the defense of alibi, non-flight
cannot prevail against the weight of positive identification of the accused.
[17]
 It is more credible to believe that Banisa had no choice but to tell the
truth regarding his presence at the Skyview Restaurant because four (4)
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policemen who knew him well saw him there while they were
conducting Operation Kapkap.
PO3 Banisa further claims that his group stayed at the Baguio First
Hotel Restaurant for only ten (10) minutes and then went down the road to
the jeepney station where they boarded a jeepney at 9:00 o'clock in the
evening bound for La Trinidad and got home after twenty-five (25) to thirty-
five (35) minutes. Yet he also testified that the boarding station for jeepneys
bound for La Trinidad was only across the road from Skyview Restaurant.
SPO1 Jose Bangcado and PO3 Cesar Banisa could have accosted their
victims, gone back to Skyview Restaurant and joined their companions who
may have thought that they (Bangcado and Banisa) just went to the comfort
room or stepped out for some fresh air. Abelardo Lucas himself testified that
while they were at the Skyview Restaurant his companions would frequently
stand up and leave, purportedly to go to the restroom.
The defense bewails the fact that nothing seemed to have been done to
the deformed slug found near the body of the deceased Richard Lino, nor to
the other slug extracted from Clemente, and that no ballistics examination
was conducted to determine from what caliber they were fired and if the gun
used was the same. Investigators did not even cause the surrender of
accused-appellants firearms for examination and comparison. Neither were
accused-appellants required to undergo a paraffin test.
Nonetheless, a ballistics examination is not indispensable, and even if
another weapon was in fact actually used in killing the victim, still the
accused cannot excape criminal liability therefor as he was already positively
identified.[18] Because credible witnesses had already demonstrated accused-
appellants' culpability, there was no need to present further evidence linking
them to the crime. There is no requirement of a certain quantum of evidence
before one may be justly convicted of an offense except when specifically
required by law. The only requisite then is that the guilt of the accused is
proved beyond reasonable doubt.[19]
Accused-appellants insist that they had no motive to shoot the victims
and/or the complaining witnesses. However, even the absence of a known
motive, the time-honored rule is that motive is not essential to convict when
there is no doubt as to the identity of the culprit. [20] Lack of motive does not
preclude conviction when the crime and the participation of the accused
therein are definitely shown,[21] particularly when we consider how
nowadays, it is a matter of judicial knowledge that persons have killed or
committed serious offense for no reason at all.[22]
The defense also tried, but failed, to establish that Cogasi and Clemente
knew beforehand that Bangcado and Banisa were policemen as they all lived
and worked together in the same neighborhood. This allegation is not
sufficient to prove that the witnesses for the prosecution had any ill motive

to testify against accused-appellants. When there is no evidence to show any
improper motive on the part of the prosecution witnesses to testify falsely
against an accused or to falsely implicate him in the commission of a crime,
the logical conclusion is that no such improper motive exists and that the
testimony is worthy of full faith and credit.[23]
The defense also assails the conclusion reached by the trial court that
the accused were guilty because they remained silent when they were
pinpointed by Cogasi during the police line-up. The trial court asked, "Is it
not that 'Qui tacen concentire videtur,' meaning, 'Silence means consent'?"[24]
Although the Rules of Court provides that an act or declaration made in
the presence and within the hearing or observation of a party who does or
says nothing when the act or declaration is such as naturally to call for action
or comment if not true, and when proper and possible for him to do so, may
be given in evidence against him, [25] courts should be cautious in interpreting
silence against the accused. Further, the facts do not support the conclusion
that the accused remained silent. Both Bangcado and Banisa gave their
individual reactions during the line-up but police discipline kept them from
breaking rank.[26] As police officers, they are bound by the strict discipline of
their profession, as well as an awareness of their rights to remain silent and
to avail of the services of counsel. These rights are not diminished by the
fact that they are policemen.
However, the trial court ruled, and correctly so, that at the time of the
police line-up, accused-appellants were not yet under the custody of the
police agencies. Their rights had not yet been restricted or curtailed. The
right to counsel attaches from the moment the investigation starts, i.e.,
when the investigating officer begins to ask questions to elicit information
and confessions or admissions from the accused.
From the testimony of the victims as well as from the physical evidence,
it seems that SPO1 Bangcado was the lone gunman, while PO3 Banisa
merely stood behind him with his gun drawn. In his testimony, Cogasi
narrated how the shooting occured -
Q: You testified that the thin one who called himself Jose Bangcado
pointed a gun at Leandro Adawan, what type of gun is (sic) that x x
xx
A: It was black and short.
Q: What about the fat man at that time, was identified as Cesar Banisa,
what was he doing at that time?
A: He was also standing beside him and was holding his gun.
Q: Would you illustrate to this Court how Jose Bangcado pointed a gun at
Leandro Adawan?
A: Witness stretch[ed] both his arms and clasped his hands together with
the forefinger extended in front of him.
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Q: After you saw Jose Bangcado point a gun at Leandro Adawan, what
else transpired, Mr. Witness?
A: He suddenly fired his gun.
Q: To whom Mr. Witness did he fire his gun?
A: He fired his gun to the four of us.
Q: After firing his gun what else transpired, Mr. Witness?
A: I just felt that I fell down.
Q: Why did you fall down?
A: Because I was shot.[27]
On cross-examination, Cogasi affirmed his sworn statement taken by
the investigating officer immediately after the incident wherein he referred to
only one (1) gunman who did the shooting. He further testified that he heard
four (4) successive shots when the gunman started shooting, then heard
more shots only after he had succeeded in running away.
On his part, Clemente attested in his sworn statement that "the man in
jacket then ordered us to line up. After we have formed a line, he started
shooting at us starting from the left. He shot first Leandro, then Richard and
followed by Pacson. After hearing the shots and seeing my companions fall, I
turned my back and held my nape with my two (2) hands and started to run
but I got hit and fell. I got up and tried to run but I fell down again." [28]
On the other hand, during his direct examination Clemente testified -
Q: Now, Mr. Witness, when these two (2) persons followed you and your
companions, what did you observe from them that time?
A: They have (sic) guns, sir.
Q: What kind of guns do (sic) they have?
A: Short and black, sir.
Q: And were they holding their guns?
A: They were holding their guns, sir x x x x
Q: After you were made to fall in line, what happened next?
A: He pointed a gun, sir.
Q: Who pointed the gun to whom?
A: The thin man pointed his gun at Leandro Adawan, sir.
Q: What else transpired after that?
A: They fired their guns at us, sir.
Q: Who shot at who (sic)?
A: The two (2) of them, sir, because there were two of them.[29]
On cross examination, Clemente testified -
Q: So, you said on that date you were frisked and then later on lined-up
and when you heard successive shots, you fell down?
A: When I heard the three (3) successive shots, I saw one pointing the
gun again at me, so, I turned around and prepared to run, but I was
hit, sir. When I turned my back and started to run, I was hit, sir.

Q: So, because you turned your back, you did not really see who actually
shot you?
A: I saw the thin one point the gun at me and both were armed with
guns, sir x x x x
Q: So, you want to tell the court that it was the thin one who shot you
because he was holding the gun that way, is that correct?
A: I do not know because both of them have (sic) guns, sir. But I saw the
thin one pointing a gun at me, sir.[30]
Thus, as to the identity of the gunman, it is apparent that both
witnesses were positive only as far as Bangcado was concerned. However, it
seems that they only concluded that Banisa participated in the shooting
because he was also holding a gun. The failure of the surviving victims to
assert with confidence that Banisa also fired his gun raises reasonable doubt
as to whether he participated in the shooting.
Accused-appellants deny the existence of treachery, nighttime and
abuse of public position to aggravate the commission of the crimes. It is
settled that qualifying circumstances cannot be presumed but must be
established by clear and convincing evidence, as conclusively as the killing
itself.[31] The defense alleges that there is no evidence that accused-
appellants made some preparation to kill the victim in such a manner as to
insure the execution of the crime or to make it impossible or hard for the
person attacked to defend himself. For treachery to be considered, two (2)
elements must concur: (a) the employment of means of execution that gives
the person attacked no opportunity to defend himself or retaliate; and, (b)
the means of execution were deliberately or consciously adopted. [32] In this
case, treachery was not present. In a long line of cases, the Court held that
"the essence of treachery is the swift and unexpected attack on an unarmed
victim without the slightest provocation on his part." [33]
To ensure that he was not in any risk, accused-appellant Bangcado
frisked and searched Cogasi, Clemente, Adawan and Lino to see if they were
concealing any weapons. After making sure that the victims were unarmed,
Bangcado directed the victims to form a line against the Ford Fierra to
separate the victims from each other and so that the latter could not rush to
their friends defense. Because Bangcado and Banisa were holding handguns,
Cogasi and his friends did as they were told and were caught unaware when
they were shot. In fact, Adawan and Lino died of gunshot wounds in the
head, while Cogasi and Clemente only sustained head wounds that did not
prove fatal.
In the absence of any previous plan or agreement to commit a crime,
the criminal responsibility arising from different acts directed against one and
the same person is individual and not collective, and that each of the
participants is liable only for his own acts. [34] Consequently, Banisa must be
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 82
absolved from criminal responsibility for the assault on the victims. It is clear
that neither the victims nor Banisa could have anticipated Bangcados act of
shooting the victims since the attack was sudden and without any reason or
purpose. Thus, the criminal design of Bangcado had not yet been revealed
prior to the killings.
For public position to be appreciated as an aggravating circumstance,
the public official must use his influence, prestige and ascendancy which his
office gives him in realizing his purpose. If the accused could have
perpetrated the crime without occupying his position, then there is no abuse
of public position.[35] Hence, that aggravating circumstance cannot be
appreciated here. While it may seem that accused-appellants intended to
assert their authority as policemen and encourage in the victims minds the
belief that they were part of Operation KapKap when they frisked the
victims, both Cogasi and Clemente testified that they never told the
investigating officers that their assailants might be policemen. In fact,
because the assailants were not in uniform, they believed the latter to be
civilians.
The defense claims that the injuries of the surviving victims were not
serious enough to classify the attack under the frustrated stage, therefore,
they committed only attempted homicide. However, the doctors who
attended to the surviving victims testified that had they not treated Cogasi
and Clemente's injuries the latter would have suffered from infection which
could result in their death. It is clear that only timely medical attention saved
both victims from imminent death.
Accused-appellants deny that there was an offer to compromise when
their relatives visited Miguel Adawan, the 81-year old father of Leandro
Adawan. The old Adawan in tears testified that he came to know of the
accused Bangcado and Banisa through their relatives when the latter came
to his house in Besao, Mt. Province. Although the incident occurred on 27
June 1993, the first visit was sometime in April 1995 when Magdalena
Mabiasan, the mother of Jose Banisa came "for a possible settlement of the
case."[36] Again, sometime in August or September 1996, Bangcados wife and
parents, along with Banisas mother Magdalena, visited him at Pico, La
Trinidad.[37]
The defense claims that the only reason the relatives of accused-
appellant went to visit and talk to Miguel Adawan was to prevent him from
avenging his sons death on the families of accused-appellant, in keeping with
the tradition of the Igorot indigenous people. Therefore, this cannot be
interpreted as an implied admission of guilt. Moreover, Sec. 27 of Rule
130[38]contemplates an offer of compromise from the accused himself. There
is no showing that the visits were made with the knowledge or upon the
instructions of accused-appellants. Thus, even if the purpose of the visit was

to negotiate a settlement, accused-appellants had nothing to do with it, since
they were neither participants nor initiators.[39]
The trial court believed in the testimony of Adawan, compared to that of
the relatives of accused-appellants who could be biased, partial and, of
course, hoping to save the two (2) accused from the serious predicament
they were in.[40] It posited this question:
But why is it that during the first time that they approached the 77-year
old man Adawan in Besao, Mountain Province, they were already assured
that the family of the deceased Adawan would not take revenge and for the
last three years, nothing happened to the families of the accused, still they
again went to the residence of Miguel Adawan at Pico, La Trinidad,
Benguet. This would only show that they tried to amicably settle the cases,
but they were rebuffed.[41]
But an offer of compromise from an unauthorized person cannot
amount to an admission of the party himself. [42] Although the Court has held
in some cases that an attempt of the parents of the accused to settle the
case is an implied admission of guilt, [43] we believe that the better rule is that
for a compromise to amount to an implied admission of guilt, the accused
should be present or at least had authorized the compromise.
In People v. Macatana[44]  it was held: "No implied admission can be
drawn from the efforts to arrive at a settlement outside the courts, primarily
because appellant did not take part in any of the negotiations. The efforts to
settle the case x x x in accordance with the established Muslim practices,
customs and traditions were initiated by acknowledged leaders x x x in an
effort to prevent further deterioration of the relations between the tribes." [45]
The general rule is that claims for actual damages should be supported
by actual receipts. However, it is undisputed that the victims are members of
the indigenous community and were buried according to their customs and
traditions. The relatives of the victims attested that they incurred expenses
for the caao, the traditional gathering of Igorots. The Court is not unaware
that the informal market system still governs the economic transactions of
indigenous communities. Thus, receipts and other documents do not play a
large role in their daily commercial transactions. In this case, wherein it is
clearly established that the claimants were indeed members of indigenous
communities, then the court should allow reasonable claims for expenses
incurred in relation to traditional burial practices.
The heirs are also entitled to damages for the loss of earning capacity of
the deceased Leandro Adawan. 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 the damages.
[46]
 Testimonial evidence is sufficient to establish a basis for which the court
can make a fair and reasonable estimate of the damages for the loss of
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earning capacity.[47] Moreover, in fixing the damages for loss of earning
capacity of a deceased victim, the Court can consider the nature of its
occupation, his educational attainment and the state of his health at the time
of his death.[48] The testimony of Adawans father sufficiently established the
basis for making such an award. It was shown that Adawan was thirty-seven
(37) years old at the time of his death in 1993 and earned P4,000.00 a
month as a mechanic.
Hence, in accordance with the American Expectancy Table of
Mortality adopted by this Court in several cases, [49] the loss of his earning
capacity is to be calculated as follows:
Net Earning Capacity (x) = Life Expectancy x Gross annual income living
expenses (50% of gross annual income)
where life expectancy = 2/3 x (80 - age of deceased [37 years])
x = 2/3 x (80 - 37) x [(P4000.00 x 12) - (P4000.00 x 12)50%]
x = 2/3 x 43 x [P48,000.00 - P24,000.00]
x = [2/3 x 43] x P24,000.00
x = 28.67 x P24,000.00
x = P688,080.00
Since Leandro Adawan was thirty-seven (37) years old at the time of his
death, his life expectancy was 28.67 years. Considering that his average
monthly income was P4,000.00, his gross annual income would
be P48,000.00. Using the above formula, the victims unearned income would
thus be P688,080.00.
On the other hand, the Court has no basis to award damages for
Richard Lino loss of earning capacity because the prosecution failed to
introduce any evidence on this matter.
Civil indemnity in the amount of P50,000.00 (consistent with prevailing
jurisprudence) is automatically granted to the offended party, or his/her
heirs in case of the formers death, without need of further evidence other
than the fact of the commission of any of the aforementioned crimes
(murder, homicide, parricide and rape). Moral and exemplary damages may
be separately granted in addition to indemnity. Moral damages can be
awarded only upon sufficient proof that the complainant is entitled thereto in
accordance with Art. 2217 of the Civil Code, while exemplary damages can
be awarded if the crime is committed with one or more aggravating
circumstances duly proved. The amounts thereof shall be at the discretion of
the courts.[50]
Under present case law, the award of P50,000.00 for civil indemnity is
mandatory upon the finding of the fact of murder. Moral damages, vis-a-
vis compensatory damages or civil indemnity, are different from each other
and should thus be awarded separately. [51] Thus, as explained in People v.
Victor,[52] the indemnity authorized by our criminal law as civil liability ex

delicto for the offended party, in the amount authorized by the prevailing
judicial policy and aside from other established actual damages, is itself
equivalent to actual or compensatory damages in civil law. It is not to be
considered as moral damages thereunder, the latter being based on different
jural foundations and assessed by the court in the exercise of sound
discretion.[53]
In People v. Victor the Court increased the civil indemnity for rape
committed or effectively qualified by any of the circumstances under which
the death penalty is authorized by the present amended law,
from P50,000.00 to P75,000.00. The Court held that "This is not only a
reaction to the apathetic societal perception of the penal law and the
financial fluctations over time, but also an expression of the displeasure of
the Court over the incidence of heinous crimes against chastity." [54] It is
submitted that the heirs of victims of murder, which is also a heinous crime,
should not receive less than what victims of rape receive as civil indemnity. If
the civil indemnity is automatically imposed upon the accused without need
of proof other than the fact of the commission of the offense, all the more
reason should the same minimum amount be imposed on those convicted of
murder, as more often than not the victims who are killed leave behind
grieving families who are depended upon them for support. Thus, indemnity
of P75,000.00 should therefore be reckoned for each count of murder
committed by accused-appellant SPO1 Jose Bangcado.
Since the crime was committed on 27 June 1993, the penalty for
murder prescribed by Art. 248 of the Revised Penal Code, prior to its
amendment by RA 7659, which took effect only on 31 December 1993,
should be applied in imposing the penalty for frustrated murder,
i.e., reclusion temporal  maximum to death.
The penalty for frustrated murder is one (1) degree lower than that
prescribed by the Penal Code for the consummated offense, hence, the
imposable penalty for frustrated murder should be prision mayor maximum
to reclusion temporal medium. Applying the Indeterminate Sentence Law,
and there being no mitigating nor aggravating circumstance present in the
commission of the offense, the penalty to be imposed for the frustrated
murder shall be taken from the range of prision correccional maximum
to prision mayor medium or four (4) years two (2) months and one (1) day
to ten (10) years as minimum, to the medium period of prision
mayor maximum to reclusion temporal or twelve (12) years five (5) months
and eleven (11) days to fourteen (14) years ten (10) months and twenty
(20) days as maximum. Hence, an indeterminate prison term of eight (8)
years two (2) months and ten (10) days of prision mayor medium as
minimum to fourteen (14) years four (4) months and ten (10) days
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 84
of reclusion temporal medium as maximum may be considered reasonable
for the frustrated murder under the facts of this case.
WHEREFORE, the Decision of the court a quo in Crim. Cases Nos.
11619-R to 11622-R imposing reclusion perpetua for the two (2) counts of
murder and the indeterminate prison term of prision mayor in its medium
period to reclusion temporal in its medium period for two (2) counts of
frustrated murder on both accused-appellants SPO1 Jose Bangcado and PO3
Cesar Banisa is MODIFIED as follows:
1. In Crim. Case No. 11619-R, accused-appellant SPO1 Jose Bangcado
is found GUILTY of murder under Art. 248 of the Revised Penal Code
qualified by treachery, and is sentenced to reclusion perpetua and to pay the
heirs of the victim Richard Lino P75,000.00 as indemnity for his
death, P59,300.00 as actual damages, P200,000.00 as moral damages, and
to pay the costs;
2. In Crim. Case No. 11620-R, accused-appellant SPO1 Jose Bangcado
is found GUILTY of murder under Art. 248 of the Revised Penal Code,
qualified by treachery, and is sentenced to reclusion perpetua  and to pay the
heirs of the victim Leandro Adawan P75,000.00 as indemnity for his
death, P93,100.00 as actual damages, P200,000.00 as moral damages, and
to pay the costs;
3. In Crim. Case No. 11621-R, accused-appellant SPO1 Jose Bangcado
is found GUILTY of frustrated murder under Art. 248 in relation to Art. 6 of
the Revised Penal Code. Applying the Indeterminate Sentence Law, and in
the absence of modifying circumstances, he is sentenced to an indeterminate
prison term of eight (8) years two (2) months and ten (10) days of prision
mayor medium, as minimum, to fourteen (14) years four (4) months and ten
(10) days reclusion temporal medium, as maximum, for the frustrated
murder of the victim Julio Clemente, and pay him P100,000.00 as moral
damages, and to pay the costs; and,
4. In Crim. Case No. 11622-R, accused-appellant SPO1 Jose Bangcado
is found GUILTY of frustrated murder under Art. 248 in relation to Art. 6 of
the Revised Penal Code. Applying the Indeterminate Sentence Law, and in
the absence of modifying circumstances, he is sentenced to an indeterminate
prison term of of eight (8) years two (2) months and ten (10) days of prision
mayor medium, as minimum, to fourteen (14) years four (4) months and ten
(10) days of reclusion temporal medium, as maximum, for the frustrated
murder of Pacson Cogasi, and pay him P100,000.00 as moral damages, and
to pay the costs.
There being no finding of conspiracy with accused-appellant SPO1 Jose
Bangcado, PO3 Cesar Banisa is ACQUITTED of all the charges against him
and, consequently, is ordered released from custody in connection with
herein cases, unless he is held for other lawful causes.

SO ORDERED.
Mendoza, Quisumbing, Buena,  and De Leon, Jr., JJ.,  concur.
G.R. No. 129304. September 27, 1999.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AVA MA.
VICTORIA CARIQUEZ y CRUZ, and LEEZEL FRANCO y SAMSON,
accused-appellants.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 85
Evidence; Hearsay Rule; Res Gestae; While the answer of Ethel as to who
inflicted the injuries may have been hearsay because Ethel could not be
confronted on that, yet it was part of the res gestae and, therefore, an
exception to the hearsay rule.—The declarations of Lilia, Michelle and
Theresa as to what they observed on ETHEL were not hearsay. They saw her
and personally noticed the injuries and tell-tale marks of torture. While the
answer of ETHEL as to who inflicted the injuries may have been, indeed,
hearsay because ETHEL could not be confronted on that, yet it was part of
the res gestae and, therefore, an exception to the hearsay rule pursuant to
Section 42 of Rule 130 of the Rules of Court, which reads: SEC. 42. Part of
res gestae. Statements made by a person while a startling occurrence is
taking place or immediately prior or subsequently thereto with respect to the
circumstances thereof, may be given in evidence as part of the res gestae.
So, also, statements accompanying an equivocal act material to the issue,
and giving it a legal significance, may be received as part of the res gestae.
Same; Same; Same; Requisites.—There are three requisites to the admission
of evidence as constituting part of the res gestae. (1) that the principal act,
the res gestae, be a startling occurrence; 2) the statements were made
before the declarant had time to contrive or devise; and (3) that the
statements must concern the occurrence in question and its immediately
attending circumstances. In this case the startling occurrences were the
tortures inflicted on ETHEL, who when asked who caused them
spontaneously pointed to AVA and LEEZEL. That some time may have lapsed
between the infliction of the injuries and the disclosure, it must however, be
pointed out that there has been no uniformity as to the interval of time that
should separate the occurrence of the startling event from the making of the
declarations. What is necessary is that the injuries sustained by ETHEL prior
to the incident on 27 May 1996 were inflicted by AVA and LEEZEL. These
acts are covered by and punished under R.A. No. 7610, under which they
were originally prosecuted. However, the then Information was amended to
charge them with parricide under Article 246 of the Revised Penal Code. The
evidence on the prior incidents cannot legally justify a conviction for the
physical injuries inflicted before 27 May 1996.
Criminal Law; Homicide; Exempting Circumstance; In order that accident
may exempt an accused from criminal liability, it must be shown that the
accused was performing a lawful act with due care; the resulting injury was
caused by mere accident; and there must be no fault or intent to cause the
injury on the part of the accused.—Accident is an exempting circumstance
under Article 12 of the Revised Penal Code. In order that accident may
exempt an accused from criminal liability, it must be shown that the accused

was performing a lawful act with due care; the resulting injury was caused
by mere accident; and there must be no fault or intent to cause the injury on
the part of the accused.
Same; Same; The rule is well-settled that in conspiracy the act of one is the
act of all, and each of the conspirators is liable for the crimes committed by
the other conspirators.—We agree with the trial court’s appreciation of
conspiracy against AVA and LEEZEL. The rule is well settled that in
conspiracy the act of one is the act of all, and each of the conspirators is
liable for the crimes committed by the other conspirators. Proof of conspiracy
need not be direct but may be inferred from proof of facts and
circumstances. If it is proved that two or more persons aimed by their acts
towards the accomplishment of the same unlawful object each doing a part
so that their acts, though apparently independent were in fact connected,
indicating a closeness of formal association and a concurrence of sentiment,
a conspiracy may be inferred though no actual meeting among them to
concert means is proved. The facts and circumstances proven in this case
unerringly lead us to a conclusion that AVA and LEEZEL conspired to
maltreat, injure, inflict pain, torture ETHEL and they were united in that
purpose and intention. The totality of their evil deeds demonstrated beyond
doubt their resolve to pursue with persistence their common objective, which
eventually resulted in the death of ETHEL. As amply demonstrated by the
evidence, ETHEL’s injuries, particularly that on the head, in addition to those
on the body, were sustained not only on the date of the fateful incident but
on dates before the day of the incident. Thus, Dr. Bienvenida testified that:
he noted that the injury on the head was a “confluent injury,” which means
that it was sustained on different dates; one portion of the injury was
“resolving hematoma” which was at least two (2) days old, while the more
acute injury was sustained within 24 hours from his examination. Likewise,
the result of the CT-Scan which was taken on the child showed a
combination of chronic and acute subdural hematoma on the left fronto-
temporo-parietal (front side and apex) convexity of the brain. Massive edema
and musk effect in the left cerebral hemisphere and right fronto-parietal lobe
were noted. A fracture was also noted on the left frontal bone. Blood clot
was found in almost the entire cerebral hemisphere. Also found were soft
tissue injuries, i.e., hematoma and abrasions, in other parts of the body. In
the autopsy conducted by Dr. Vertido of the NBI, the doctor concluded as
the cause of Ethel’s death: “Traumatic Head Injury.”
Same; Same; Penalty; As amended by Republic Act 7610, the penalty for
homicide in cases where the victim is a child below twelve (12) years of age
is reclusion perpetua.—Indisputably, AVA committed the crime of parricide
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 86
under Article 246 of the Revised Penal Code, as amended by R.A. No. 7659,
which is punished by reclusion perpetua to death. Considering that no
modifying circumstances were proven, then pursuant to Article 63 of the
Revised Penal Code, the lesser of the penalty, i.e., reclusion perpetua, was
correctly imposed by the trial court on AVA. LEEZEL was correctly held liable
for the crime of homicide only as he was a stranger to the victim, ETHEL.
Previous to its amendment by R.A. 7610, the penalty for homicide under
Article 249 of the Revised Penal Code, was reclusion temporal. As amended
by R.A. 7610, the penalty for homicide in cases where the victim is a child
below twelve (12) years of age is reclusion perpetua.
Same; Same; Same; The penalty for the commission of acts punishable
under Articles 248, 249, 262, paragraph 2, and 263, paragraph 1 of Act No.
3815, as amended, the Revised Penal Code, for the crimes of murder,
homicide, other intentional mutilation, and serious physical injuries,
respectively, shall be reclusion perpetua when the victim is under twelve (12)
years of age.—For purposes of this Act, the penalty for the commission of
acts punishable under Articles 248, 249, 262, paragraph 2, and 263,
paragraph 1 of Act No. 3815, as amended, the Revised Penal Code, for the
crimes of murder, homicide, other intentional mutilation, and serious physical
injuries, respectively, shall be reclusion perpetua when the victim is under
twelve (12) years of age. x x x (Emphasis supplied) Accordingly, the penalty
of reclusion perpetua should be imposed upon LEEZEL. His claim that he was
not charged in the amended information is absolutely wanting in basis. He
was, although for parricide, but, he could legally be convicted of homicide,
which is necessarily included in that charged.
APPEAL from a decision of the Regional Trial Court of Pasig City, Br. 163.
The facts are stated in the opinion of the Court.
     The Solicitor General for plaintiff-appellee.
     Arias Law Office for Leezel Franco.
     Jimmy D. Lacebal for Ava Maria Victoria Cariquez
DAVIDE, JR., C.J.:
This is an appeal from the decision 1 of 19 March 1997, of the Regional Trial
Court of Pasig City, Branch 163, in Criminal Case No. 110410 convicting
accused-appellants Ava Ma. Victoria Cariquez y Cruz (hereafter AVA) and

Leezel Franco y Samson (hereafter LEEZEL) of the crime of parricide and
homicide, respectively.
In an Information 2 dated 30 May 1996, AVA and LEEZEL were initially
charged with serious physical injuries under Section 10, Article VI of R.A. No.
7610. 3 However, on 31 May 1996 the victim, Mariel Cariquez y Cruz
(hereafter ETHEL) died. On 30 August 1996 the information was amended to
charge AVA and LEEZEL with the crime of parricide. The Amended
Information 4 reads:
The undersigned State Prosecutor of the Department of
Justice, accuses AVA MA. VICTORIA CARIQUEZ Y CRUZ and
LEEZEL FRANCO Y SAMSON of the crime of Parricide defined
and penalized under Article 246 of the Revised Penal Code,
as amended by Sec. 5 of R.A. 7659 committed in the
manner herein narrated as follows:
That on or about the 27th day of May 1996,
in the City of Mandaluyong, Philippines, a
place within the jurisdiction of this
Honorable Court, accused AVA MA.
VICTORIA Y CARIQUEZ, being then the
mother of a 2 1/2 years old child, MARIEL
CARIQUEZ Y CRUZ, conspiring and
confederating together with Leezel Franco Y
Samson, and mutually helping and aiding
one another, with intent to kill, evident
premeditation, taking advantage of superior
strength and treachery, did then and there,
willfully, unlawfully and feloniously, beat and
maul said MARIEL CARIQUEZ Y CRUZ in the
different parts of her body, thereby inflicting
upon her mortal wounds which directly
caused her death.
CONTRARY TO LAW.
The witnesses presented by the prosecution were Lilia Gojul, Michelle
Torrente, Theresa Castillo, Dr. Antonio Vertido, Dr. Jose Joey Bienvenida,
SPO3 Adonis Bacarra, Dr. Arsenio Pascual, and Benilda Almario. Lilia Gojul is
AVA's sister. The relevant and material facts established by their testimonies
are faithfully summarized in the Appellee's Brief, as follows:
Mariel Cariquez y Cruz, fondly called Ethel, was two and a-
half years old when she and her mother, Ava Cariquez,
moved in sometime in January 1996 to No. 116 Royal
Townhomes, San Rafael Mandaluyong City. Ava's sister, Lilia
C. Gojul moved in with them (TSN, October 16, 1996, pp. 5-
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 87
6, 32). She slept with the little girl in one of the two
bedrooms on the house (TSN, Ibid., p. 12). Ava had a
housemaid named Elizabeth Patao, who also watched over
Mariel or Ethel (TSN, October 16, 1996, pp. 6,8). At the
time, Ava had a live-in partner, Leezel Franco (TSN, October
16, 1996, pp. 5-6, 49). He was not the father of Ethel,
however (TSN, ibid., p. 51).
Ava's household was not at all peaceful because almost
everyday, Ava and Leezel quarreled, "nagbubugbugan"
(TSN, October 16, 1996, pp. 9, 11; October 29, 1996, pp.
29, 40-41). Ava and Leezel were then taking or using drugs
(TSN, October 16, 1996, p. 39).
In the middle of March 1996, Lilia Gojul left Ava's household
and went to live in her home at Urduja Village, Novaliches,
Quezon City (TSN, October 16, 1996, p. 6).
In the meantime, the little girl caught the attention of their
neighbors as she was cute and friendly. While the neighbors
became fond of "Ethel," they however found Ava and Leezel
aloof and snobbish (October 29, 1996, pp. 9, 30, 21).
On April 14, 1996, Lilia visited Ava and her niece at the
Royal townhomes but she was shocked to see Ethel's
appearance; her hair was shaven, her face was full of
contusions, her neck had faded cigarette burns while her
arms and legs had traces of pinching and maltreatment. She
also had marks of "black-eye" on both eyes. Lilia also
noticed Ethel's knees with contusions due to prolonged
kneeling. (TSN, October 16, 1996, pp. 12, 13). When Lilia
asked the little girl to identify who inflicted the injuries on
her body, Ethel tearfully pointed to Ava and Leezel (TSN,
October 16, 1996, p. 14). Lilia confronted Ava about her and
Leezel's treatment of Ethel (Ibid., p. 13).
Neighbors were hearing the little girl crying everyday,
morning, noon, evening, and even at 1:00 o'clock or 2:00
o'clock in the morning (TSN, October 29, 1996, p. 8, 29-30).
Sometime in April, Michelle Torrente, an occupant of Unit
114, was aghast to see her shaven, with bruises all over her
body and wounds in her arms and legs (TSN, ibid., pp. 10,
130. Ethel also had cigarette burns, and when Michelle
asked what happened, Ethel replied: "pinaso po ako." When
Michelle further asked who burned her and caused her
bruises, Ethel said, "Papa ko po," referring to Leezel Franco
(TSN, ibid., pp. 11-13).

The little girl's shaven head and bruises were also noticed by
Theresa Castillo, an occupant of unit 115, adjacent to Ava's
residence. When she asked Ethel's "yaya" why this was done
to the little girl, the "yaya" answered, "parusa" (TSN,
October 16, 1996, p. 150).
The next time that Lilia visited Ava and her daughter was on
May 12, 1996. At the time, Ava's housemaid has already left
the household. On that occasion, Lilia observed that Ethel
was sickly and had even more contusions than the last time
she saw her in April. Out of pity for the little girl, Lilia tried to
persuade Ava that she take custody of Ethel (TSN, October
16, 1996, p. 15). Ava agreed to her suggestion and wrote a
note where she passed on to Lilia Gojul the guardianship of
Ethel Cariquez (TSN, ibid., pp. 16, 19; Exhibit A). However,
on May 14, 1996, Lilia had to leave Ava's household without
bringing Ethel with her (TSN, October 16, 1996, p. 21). Ethel
cried silently when Lilia left (TSN, ibid., pp. 22, 36). Lilia
heard nothing from them after that. 1âwphi1.nêt
On May 27, 1996, around 3:00 or 4:00 o'clock in the
afternoon, Ethel was brought in an ambulance from the
Mandaluyong Medical Center to the Cardinal Santos
Memorial Hospital at Greenhills, San Juan (TSN, November
14, 1996, pp. 8; 29). At the time, she was unconscious and
was assisted by an ambu bag, unable to breathe on her
own. Her body was limp and she had prominent bruises on
the forehead and the right cheek (TSN, ibid., pp. 8, 16).
Dr. Jose Joey Bienvenida attended to her and in the course
of taking her medical history, he interviewed the mother,
Ava Cariquez. Ava at first told the doctor that it was her
brother, the patient's uncle, who mauled the child and
inflicted upon her serious injuries. Ava later changed her
story, saying that the little girl actually fell from the stairs
(TSN, ibid., pp. 9-10, 25-27).
A CT-scan was taken of the child and the results showed a
combination of chronic and acute subdural hematoma on the
left frontotemporoparietal (front side and apex) convexity of
the brain. Massive edema and musk effect in the left
cerebral hemisphere and right fronte-parietal lobe were
noted. A fracture was also noted on the left frontal bone
(TSN, ibid., p. 11). Blood clot was found in almost the entire
cerebral hemisphere. He also found soft tissue injuries, i.e.,
hematoma and abrasions, in other parts of the body
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 88
(TSN, ibid., p. 42). Dr. Bienvenida noted that the injury on
the head was a "confluent injury," which means that it was
sustained on different dates (TSN, ibid. p. 40); one portion
of the injury was "resolving hematoma" which was at least
two (2) years old, while the more acute injury was sustained
within 24 hours from his examination (TSN, ibid. p. 41).
Ethel was thereafter confined at the Intensive Care Unit of
the hospital, attached to a respirator (TSN, ibid., p. 16). She
was classified as a "brain-dead" patient (Ibid., p. 18).
Ethel's condition however grew worse and she eventually
died on May 31, 1996 at about 10:20 in the morning. After
her death, the life support system was removed (TSN, ibid.,
p. 18; Exhibit E). The cause of death was "cardio respiratory
arrest secondary to multiple organ system failure, severe
massive crania-cerebral trauma" (TSN, ibid. p. 23; Exhibit C-
2).
Dr. Antonio Vertido, NBI Medico-Legal Officer, conducted an
autopsy on the little girl's body (TSN, November 7, 1996, p.
4). The doctor made the following significant findings:
fracture linear, right middle cranial fosse; abrasion, right
forehead; contusion, right leg; contusion-abrasion left face;
hematoma, forehead right and hematoma, scalp, right
fronto-parietal (Exhibit D). In his autopsy report, Dr. Vertido
concluded that the cause of death was Traumatic Head
Injury, Severe (Exhibit D-2). 5
AVA and LEEZEL were the witnesses presented by the defense.
According to AVA, during their breakfast at about 7:30 a.m. on 27 1996, she
talked with LEEZEL about their up-coming concert on 1 June 1996 at Subic.
Then, she went out of the house to make a telephone call. When she left the
house, her daughter ETHEL was eating while LEEZEL was playing the guitar.
When she returned she saw ETHEL playing with the food. She told ETHEL to
hurry up as she was going with her to the office, but ETHEL stubbornly
looked at her and continued to play with her food. She again told ETHEL to
hurry up and finish her food. ETHEL still said "No." To her repeated order to
do so, ETHEL also repeatedly said, "No." AVA then got a plastic belt and hit
ETHEL with it on the buttocks a number of times, which made ETHEL cry.
Since ETHEL continued to be hard-headed, AVA held her on the shoulder.
ETHEL struggled and slipped AVA's hold, got out of balance, and fell. ETHEL
hit the sofa and when she bounced back her head hit the edge of the
cemented stairs. AVA got shocked and noticed LEEZEL stop playing his guitar
and shout: "Ava yoong anak mo." AVA then held ETHEL and gave her
mouth-to-mouth resuscitation. Seeing ETHEL's serious condition, LEEZEL

suggested to AVA to bring ETHEL to the hospital, which they did, at first to
the Mandaluyong City Hospital and because the hospital cannot provide the
best medical care, to the Cardinal Santos Memorial Hospital, where she was
brought to and confined at the hospital's Intensive Care Unit (ICU). Early on
the morning of 28 May 1996, AVA went to the Mandaluyong Police Station to
get her car and to find out the reason why her car was impounded. She was
not able to get the car. Instead, she was detained at about 8:00 p.m. of 28
May 1996. AVA came to know that the police found drugs in her car, for
which reason she was detained. 6 Three (3) days after her detention, Lilia
Gojul, her sister, went to jail and asked her to sign some papers and asked
her permission to take off the respirator of ETHEL in the hospital. She did not
give her permission. 7
On cross-examination, AVA declared that the cigarette burns on ETHEL's
body were caused by sprinkling oil while their maid was cooking; LEEZEL had
nothing to do with any of the child's bruises or injuries; when Lilia Gojul, her
sister visited her in jail, the former told her that she should point to LEEZEL
as the one responsible for ETHEL's death, otherwise, she will do something
to her; and that she has no personal relation with LEEZEL. However, in her
affidavit, 8 dated 1 June 1996, and in her reply-affidavit, 9 AVA pointed to
LEEZEL as the one responsible for ETHEL's injuries, stating that when she
returned home after making a phone call from outside the house, she found
LEEZEL hit ETHEL with the buckle of a belt at the back and front of her head.
She tried to stop him but he pushed her. As LEEZEL continued to hit ETHEL
with the belt, what she did was to get the antenna of the TV and hit LEEZEL
with it at his hand causing him to release the same. She then got hold of
ETHEL but because LEEZEL pushed her she fell to the floor with her
daughter. This was repeated several times. When she noticed ETHEL was
having difficulty in breathing, she ran to the comfort room in order to give
ETHEL a shower to revive her, at the same time applying mouth to mouth
resuscitation to her. She went out of the bathroom to bring ETHEL to the
hospital. 10
In her reply-affidavit AVA declared that when she returned home after
making a telephone call, she found LEEZEL hit ETHEL with the buckle of his
belt. That was not the first time that she saw him hit ETHEL; he used to hit
her whenever he is high on drugs and ETHEL was noisy playing. On those
occasions LEEZEL use to hit AVA and they end up fighting because AVA
always tried to protect ETHEL from harm.
AVA tried to diminish the value of these admissions in her affidavit and reply-
affidavit by testifying that she did not read them before signing and she
signed under a state of shock. 11
LEEZEL offered two versions for his defense. In his counter-affidavit 12 of 11
June 1996, he declared that during breakfast in the morning of 27 May 1996,
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 89
he and AVA talked about the band and their concert in Subic. Thereafter,
AVA told him that she was going to make a phone call outside of the house.
Before leaving, she ordered ETHEL to hurry up with her food because she
was to go with AVA to the latter's office. However, when AVA returned,
ETHEL had not finished eating. AVA hit ETHEL very hard, whipped her with a
belt, held her by the arms and pushed her, sending ETHEL to hit the corner
of the sofa and then to bounce, causing her head to hit the end of the
cemented stairs and to fall to the floor. ETHEL was on the verge of death.
AVA was shocked. Seeing this, LEEZEL picked up ETHEL and brought her to
the comfort room where he poured water on her. Thereafter, he and AVA
brought ETHEL to the hospital. 13
But, in his testimony in court LEEZEL declared that his statement in his
counter-affidavit that AVA pushed ETHEL, causing the latter to fall and to hit
the cemented stairs was only narrated to him by AVA and that he never
witnessed the incident. 14He further declared that he had nothing to do with
ETHEL's injuries and the testimony of Lilia Gojul is not true. Lilia had an
ulterior motive against him because on one occasion he prevented Catherine,
Lilia's daughter from entering AVA's house and because of that Lilia, her
husband and her sons Caesar and Julius kicked him and hit him with a chair.
Finally, LEEZEL claimed that he had no idea as to what happened to ETHEL;
all that he saw was the child lying on the floor, and he then helped AVA
bring the child to the hospital. In the hospital, he was asked by the police to
go with them to the Complaints and Investigation Division of the
Mandaluyong City Police, where he stayed for more than four hours. Since
the police conducted no formal investigation on him, he left for home. 15
In its decision 16 of 19 March 1997, the trial court found AVA and LEEZEL
guilty of parricide and homicide, respectively. It decreed as follows:
WHEREFORE, premises considered, this Court finds accused
AVA Ma. Victoria Cariquez y Cruz and Leezel Franco y
Samson guilty beyond reasonable doubt as principal for the
crime of Parricide and homicide respectively and considering
the mitigating circumstance that they did not intend to
commit so grave a wrong as that committed and there being
no aggravating circumstances on record, imposes upon —
a) Ava Ma. Victoria Cariquez
the penalty of reclusion
perpetua,
b) Leezel Franco the
indeterminate penalty of
eight (8) years and one (1)
day of  prision mayor  a
minimum to fourteen (14)
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 90

years eight (8) months and many contusions on her face, black eyes,
one () day of reclusion cigarette burns on her arms and neck, and
temporal as maximum; several marks of maltreatment on her legs
c) To pay the costs. and both knees as well as traces of pinching
Any detention service rendered by the accused should be all over her body. When asked who caused
credited in their favor computed pursuant to Batas her those injuries, the 2 year old girl pointed
Pambansa Blg. 85. to her own mother, Ava, and her mother's
AVA and LEEZEL appealed to us from the decision. live in partner, Leezel Franco;
In their Appellants' Brief, AVA and LEEZEL interpose this lone assignment of 2. When Lilia next saw Ethel on 12 May
error: 1996, Ethel had even graver injuries and
THE LOWER COURT GRAVELY ERRED IN CONVICTING was sickly. Again, Ethel pointed to
BOTH ACCUSED WITHOUT SUFFICIENT EVIDENCE FOR appellants Ava and Leezel as the ones who
CONVICTION. caused her the injuries.
In support thereof, they argue that the prosecution's principal witness Lilia 3. Michelle Torrente, a resident of the unit
Gojul, as well as the other witnesses never saw how ETHEL sustained the adjacent to the townhouse unit occupied by
injuries inflicted on her; Lilia never testified that during her stay in AVA's Ava Cariquez, Leezel Franco and Ethel
house the child was the object of their quarrel; the prosecution's evidence is Cariquez, testified that she used to hear
purely hearsay, conjectural and fails to show any conspiracy that they Ethel crying between 1:00 to 2:00 in the
maltreated and caused ETHEL's death; her death was purely accidental; only morning. She further testified that one day
circumstantial evidence is on record against them there was no evil motive she saw Ethel with bruises and cigarettes
on their part to kill ETHEL. burns and when asked what happened to
They characterized the report of ETHEL to Lilia Gojul as to the former's her, Ethel replied, "pinaso po ako;" Ethel
shaven head and injuries as hearsay and cannot be considered an exception pointed to her Papa Leezel as the one who
to the hearsay rule because it was not made on an impending death or with did it to her.
the thought of an impending death and was related to Lilia many days before 4. Theresa Castillo, another occupant of an
the incident. adjacent unit, also testified that she often
LEEZEL further asserts that only AVA was formally charged, hence there is saw Ethel bruised and crying and sometime
no case against him. in April, saw her head shaven. When she
The trial court convicted AVA and LEEZEL on the basis of circumstantial asked the "yaya" why Ethel's hair was
evidence. Circumstantial evidence is sufficient to convict provided the shaved, the "yaya" answered "parusa."
following requisites are present, namely: (1) there is more than one 5. Dr. Jose Joey Bienvenida, the doctor who
circumstance; (2) the facts from which the inferences are derived from are attended to Ethel at the Cardinal Santos
proven; and (3) the combination of all the circumstances is such as to Memorial Hospital, opined that the injuries
produce a conviction beyond reasonable doubt. 17 The circumstantial found on the head of Ethel were inflicted on
evidence must constitute an unbroken chain of events so as to lead to a fair different dates.
and reasonable conclusion that points to the guilt of the accused. 18 In the 6. Dr. Bienvenida further testified that in the
Appellee's Brief, the Office of the Solicitor General enumerates seven (7) course of taking the medical history of the
circumstantial evidence which the trial court took into account and relied child, he interviewed the mother, Ava
upon as bases for its finding that AVA and LEEZEL, were criminally Cariquez, who gave conflicting accounts as
responsible for the death of ETHEL, to wit: to how the child got injuries: while the
1. In 14 April 1996, prosecution principal mother initially said that her daughter was
witness, Lilia Gujol, saw Ethel shaven, with mauled by her uncle (AVA's brother), she

later changed her story by claiming that the
child fell from the stairs.
7. Dr. Vertido testified that the cause of
death was traumatic Head Injury, Severe
Aside from the foregoing circumstantial evidence, the trial court also took
into account AVA's affidavit (Exhibit "R"), reply-affidavit (Exhibit "S"), and
LEEZEL's counter-affidavit (Exhibit "T"), as well as the circumstances of the
apprehension of the two by authorities for illegal possession of "shabu" and
AVA's judicial admission that ETHEL slipped from her hold, fell and her head
hit the cemented floor.
We are fully convinced from the evidence on record of the culpability of AVA
and LEEZEL for ETHEL's maltreatment. The testimony of Lilia Gojul, Michelle
Torrente and Theresa Castillo ineluctably show that AVA and LEEZEL
tormented ETHEL. Where ETHEL dwelt was not a home; it was not even a
house. It was hell. AVA and LEEZEL considered ETHEL not as a child with
human dignity and an object of love as children should be, but an unwanted
object against whom they could vent everything from frustrations to anger
and hate. What Lilia saw on ETHEL was truly shocking — an innocent child
with shaven hair; with a face full of contusions; a neck with faded cigarettes
burns; arms and legs with traces of pinching and maltreatment; "black-eyed"
eyes; and contused knees due to prolonged kneeling. 19 When Lilia asked the
little girl to identify who inflicted the injuries on her body, ETHEL tearfully
pointed to AVA and LEEZEL. 20 Lilia confronted AVA about her and LEEZEL's
maltreatment of the child. 21
In April 1996 Michelle Torrente was aghast to see ETHEL's head shaven, with
bruises all over her body and wounds in her arms and legs, 22 as well as
cigarette burns. When she asked what happened, ETHEL replied: "pinaso po
ako." When she further asked her who burned her and caused her bruises,
ETHEL said, "Papa ko po," referring to LEEZEL. 23
Theresa Castillo also noticed ETHEL's shaven head and body bruises. When
she asked ETHEL's yaya why this was done to the child, the yaya answered,
"parusa". 24
The declarations of Lilia, Michelle and Theresa as to what they observed on
ETHEL were not hearsay. They saw her and personally noticed the injuries
and telltale marks of torture. While the answer of ETHEL as to who inflicted
the injuries may have been, indeed, hearsay because ETHEL could not be
confronted on that, yet it was part of the res gestae and, therefore, an
exception to the hearsay rule pursuant to Section 42 of Rule 130 of the Rules
of Court, which reads:
Sec. 42. Part of res gestae. Statements made by a person
while a startling occurrence is taking place or immediately
prior or subsequently thereto with respect to the
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 91
circumstances thereof, may be given in evidence as part of
the res gestae. So, also, statements accompanying an
equivocal act material to the issue, and giving it a legal
significance, may be received as part of the res gestae.
There are three requisites to the admission of evidence as constituting part
of the res gestae. (1) that the principal act, the res gestae, be a startling
occurrence; 2) the statements were made before the declarant had time to
contrive or devise; and (3) that the statements must concern the occurrence
in question and its immediately attending circumstances. 25 In this case the
startling occurrences were the tortures inflicted on ETHEL, who when asked
who caused them spontaneously pointed to AVA and LEEZEL. That some
time may have lapsed between the infliction of the injuries and the
disclosure, it must however, be pointed out that there has been no
uniformity as to the interval of time that should separate the occurrence of
the startling event from the making of the declarations. What is necessary is
that the injuries sustained by ETHEL prior to the incident on 27 May 1996
were inflicted by AVA and LEEZEL. These acts are covered by and punished
under R.A. No. 7610, under which they were originally prosecuted. However,
the then Information was amended to charge them with parricide under
Article 246 of the Revised Penal Code. The evidence on the prior incidents
cannot legally justify a conviction for the physical injuries inflicted before 27
May 1996.
The issue then that must be resolved is who was or were responsible for the
act on 27 May 1996, which caused or resulted in the death of ETHEL? On
this the prosecution failed to offer any direct evidence. The circumstantial
evidence the trial court appreciated related to acts or events which happened
before 27 May 1996.
Yet, these prior acts are inseparable from that which happened on 27 May
1996. The latter was the coup de grace. Fortunately, for the prosecution,
AVA offered two versions. The first was that she offered at the witness stand
in open court, i.e., ETHEL's death was due to an accident. The second was
narrated in her affidavit (Exhibit "R") and reply-affidavit (Exhibit "S"), where
she pointed to LEEZEL as the culprit. We cannot allow her to disown her
affidavit and reply-affidavit as the explanation given for that is very flimsy
and incredible, and clearly concocted to exculpate LEEZEL and at the same
to absolve herself under a claim of accident. Her affidavit and reply-affidavit
were prepared at her instance long before she took the witness stand. In a
manner of speaking they were given voluntarily and spontaneously long
before the prospect of a court trial became imminent and the dismissal of the
cases against her was her goal. That she told the truth in her affidavit and
reply-affidavit cannot escape the verdict of rational minds.
AVA's story of "accident" cannot, likewise, work in her favor.

Accident is an exempting circumstance under Article 12 of the Revised Penal
Code, In order that accident may exempt an accused from criminal liability, it
must be shown that the accused was performing a lawful act with due care;
the resulting injury was caused by mere accident; and there must be no fault
or intent to cause the injury on the part of the accused. 26
The defense of accident shifted to AVA the burden of the evidence and it
was incumbent upon them to prove that they were exempt from criminal
liability. It is at once evident from the story foisted to the trial court by AVA
while she was on the witness stand that the requisites of accident as an
exempting circumstance were not proven. On the contrary, the totality of her
story proved beyond reasonable doubt that ETHEL was maltreated and
pushed hard driving her head to the cemented stairs and causing the injuries
which were the proximate cause of her death.
We agree with the trial court's appreciation of conspiracy against AVA and
LEEZEL. The rule is well settled that in conspiracy the act of one is the act of
all, and each of the conspirators is liable for the crimes committed by the
other conspirators. 27 Proof of conspiracy need not be direct but may be
inferred from proof of facts and circumstances. 28 If it is proved that two or
more persons aimed by their acts towards the accomplishment of the same
unlawful object each doing a part so that their acts, though apparently
independent were in fact connected, indicating a closeness of formal
association and a concurrence of sentiment, a conspiracy may be inferred
though no actual meeting among them to concert means is proved. 29 The
facts and circumstances proven in this case unerringly lead us to a
conclusion that AVA and LEEZEL conspired to maltreat, injure, inflict pain,
torture ETHEL and they were united in that purpose and intention. The
totality of their evil deeds demonstrated beyond doubt their resolve to
pursue with persistence their common objective, which eventually resulted in
the death of ETHEL. As amply demonstrated by the evidence, ETHEL's
injuries, particularly that on the head, in addition to those on the body, were
sustained not only on the date of the fateful incident but on dates before the
day of the incident. Thus, Bienvenida testified that: he noted that the injury
on the head was a "confluent injury," which means that it was sustained on
different dates; 30 one portion of the injury was "resolving hematoma" which
was at least (2) days old, while the more acute injury was sustained within
24 hours from his examination. 31 Likewise, the result of the CT-Scan which
was taken on the child showed a combination of chronic and acute subdural
hematoma on the left fronto-temporoparietal (front side and apex) convexity
of the brain. Massive edema and musk effect in the left cerebral hemisphere
and right fronto-parietal lobe were noted. A fracture was also noted on the
left frontal bone. Blood clot was found in almost the entire cerebral
hemisphere. Also found were soft tissue injuries, i.e., hematoma and
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 92
abrasions, in other parts of the body. 32 In the autopsy conducted by Dr.
Vertido of the NBI, the doctor concluded as the cause of Ethel's death:
"Traumatic Head Injury." 33
Indisputably, AVA committed the crime of parricide under Article 246 of the
Revised Penal Code, as amended by R.A. No. 7659, which is punished
by reclusion perpetua to death. Considering that no modifying circumstances
were proven, then pursuant to Article 63 of the Revised Penal Code, the
lesser of the penalty, i.e., reclusion perpetua, was correctly imposed by the
trial court on AVA. LEEZEL was correctly held liable for the crime of homicide
only as he was a stranger to the victim, ETHEL. Previous to its amendment
by R.A. 7610, the penalty for homicide under Article 249 of the Revised Penal
Code, was reclusion temporal. As amended by R.A. 7610, the penalty for
homicide in cases where the victim is a child below twelve (12) years of age
is reclusion perpetua. The second paragraph of Section 10 of Article VI of
R.A. 7610 provides, as follows:
For purposes of this Act, the penalty for the commission of
acts punishable under Articles 248, 249, 262, paragraph 2,
and 263, paragraph 1 of Act No. 3815, as amended, the
Revised Penal Code, for the crimes of murder, homicide,
other intentional multilation, and serious physical injuries,
respectively, shall be reclusion perpetua when the victim is
under twelve (12) years of age . . . . (Emphasis supplied)
Accordingly, the penalty of reclusion perpetua should be imposed
upon LEEZEL. His claim that he was not charged in the amended
information is absolutely wanting in basis. He was, although for
parricide, but, he could legally be convicted of homicide, which is
necessarily included in that charged.
WHEREFORE, the decision, dated 19 March 1997 of the Regional Trial Court
of Pasig City, Branch 163, in Criminal Case No. 110410 finding accused-
appellant Ava Ma. Victoria Cariquez y Cruz and Leezel Franco y Samson
guilty beyond reasonable doubt as principal of the crime of Parricide and
Homicide, as defined and penalized under Article 246 and Article 249 of the
Revised Penal Code, respectively, and imposing, with respect to appellant
Ava Cariquez, the penalty of reclusion perpetua, is hereby AFFIRMED, but
MODIFIED as to the penalty for Leezel Franco y Samson and as so modified,
he is hereby sentenced to suffer the penalty of reclusion perpetua. The
decision is further MODIFIED by directing accused-appellants Ava Carinquez
and Leezel Franco y Samson to pay jointly and severally the heirs of ETHEL
Cariquez, except accused-appellant Ava Cariquez, the death indemnity in the
amount of P50,000.00.
Costs against accused-appellants.1âwphi1.nêt
SO ORDERED.

Puno, Kapunan, Pardo and Santiago, JJ., concur.
G.R. No. 125539. July 27, 1999.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALFONSO
PATALIN, JR., ALEX MIJAQUE, AND NESTOR RAS, accused-
appellants.
Criminal Law; Evidence; Credibility of Witnesses; The assessment of the
credibility of witnesses and their testimony is a matter best undertaken by
the trial court because of its unique opportunity to observe the witnesses
firsthand and to note their demeanor, conduct, and attitude under grilling
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 93
examination.—Of primordial consideration in appellate matters is the legal
principle that the assessment of the credibility of witnesses and their
testimony is a matter best undertaken by the trial court because of its unique
opportunity to observe the witnesses firsthand and to note their demeanor,
conduct, and attitude under grilling examination (People vs. Ombrog, 268
SCRA 93 [1997]). We generally uphold and respect this appraisal since, as an
appellate court, we do not deal with live witnesses but only with the cold
pages of a written record (People vs. Herbieto, 269 SCRA 472 [1997]).
Same; Same; Same; Delay in lodging a criminal accusation does not impair
the credibility of a witness if such delay is satisfactorily explained.—Accused-
appellants rely on the delay or vacillation on the part of the complaining
witnesses. As discussed above in their individual defenses, they emphasize
that Reynaldo Aliman failed to mention the names of the perpetrators in his
sworn statement; that on August 11, 1984, Reynaldo instructed a relative,
Jesus Larang, to report the hacking and robbery incidents at the Lambunao
Police Department, as well as the robbery committed in the Carcillar
household, and that the police blotter stated that the alleged offenders were
unknown persons but contained no report of any rape; and that Rogelia
Carcillar’s report did not mention that she was raped. Time and again, we
have ruled that delay in lodging a criminal accusation does not impair the
credibility of a witness if such delay is satisfactorily explained (People vs.
Bugarin, 273 SCRA 384 [1997]). An examination of Reynaldo Aliman’s sworn
statement (p. 3, I Record) shows that he clearly identified one of the callers
as accused-appellant Alfonso Patalin. Anent his failure to mention accused-
appellant Mijaque’s name, he explained on cross-examination that he did not
know yet the name of the person who attacked him with the bolo at the time
he executed his sworn statement (tsn, Dec. 16, 1986, pp. 35, 38-39). It was
only later that he found out that the name of his assailant was Alex Mijaque.
As regards Jesus Larang, the fact that he mentioned “unknown persons” in
his report does not affect Reynaldo’s categorical and positive identification of
accusedappellants Patalin and Mijaque as the perpetrators of the hacking
and robbery incidents at his home.
Same; Same; Same; Honest inconsistencies on minor and trivial matters
serve to strengthen rather than destroy the credibility of a witness to a
crime, especially so when the crime is shocking to the conscience and
numbing to the senses.—Inconsistencies in the testimony of witnesses, when
referring only to minor details and collateral matters do not affect either the
substance of their declaration, their veracity, or the weight of their
testimony, and do not impair the credibility of such witnesses where there is
consistency in relating the principal occurrence and the positive identification

of the assailant (Sumalpong vs. Court of Appeals, 268 SCRA 764 [1997]). In
fact, honest inconsistencies on minor and trivial matters serve to strengthen
rather than destroy the credibility of a witness to a crime, especially so when
the crime is shocking to the conscience and numbing to the senses (People
vs. Agunias, 279 SCRA 52 [1997]).
Same; Same; Same; Alibi and Denial; Positive identification, where
categorical and consistent and without any showing of ill motive on the part
of the eyewitnesses testifying on the matter, prevails over alibi and denial.—
With respect to the defenses of denial and alibi, significantly, these defenses,
if unsubstantiated by clear and convincing evidence, are negative and self-
serving, deserve no weight in law, and cannot be given evidentiary value
over the testimony of credible witnesses who testify on affirmative matters
(People vs. Gayon, 269 SCRA 587 [1997]). Positive identification, where
categorical and consistent and without any showing of ill motive on the part
of the eyewitnesses testifying on the matter, prevails over alibi and denial
(People vs. Javier, 269 SCRA 181 [1997]). Verily, even if the defense of
denial is supported by the testimony of friends of the accused, it deserves
the barest consideration (People vs. Gamiao, 240 SCRA 254 [1995]). It will
be given weight only if it would preclude any doubt that the accused could
not have been physically present at the place of the crime or its vicinity at
the time of commission (People vs. Daquipil, 240 SCRA 314 [1995]; People
vs. De Roxas, 241 SCRA 369 [1995]; People vs. Morin, 241 SCRA 709
[1995]; People vs. Rivera, 242 SCRA 26 [1995]; People vs. Dela Iglesia, 241
SCRA 718 [1995]; People vs. Umali, 242 SCRA 17 [1995]; People vs. Dayson,
242 SCRA 124 [1995]; People vs. Espinosa, Jr. 243 SCRA 7 [1995]; People
vs. Parica, 243 SCRA 557 [1995]; People vs. Escoto, 244 SCRA 87 [1995]).
Same; Same; Aggravating Circumstance; Nighttime; Dwelling; Trial court
correctly appreciated the aggravating circumstances of nighttime and
dwelling in Criminal Case No. 18376 considering that nighttime facilitated the
commission of the crime and the evidence shows that accused-appellants
took advantage of the darkness to successfully consummate their plans.—
The trial court correctly appreciated the aggravating circumstances of
nighttime and dwelling in Criminal Case No. 18376 considering that nighttime
facilitated the commission of the crime and the evidence shows that
accusedappellants took advantage of the darkness to successfully
consummate their plans (People vs. Apduhan, Jr., 24 SCRA 798 [1968]).
Dwelling is clear from the abuse of confidence which the victims reposed in
the offenders by opening the door to them, as well as the violation of the
sanctity of privacy in the victims’ homes. He who goes to another’s house to
slander him, hurt him, or do him wrong, is more guilty than he who offends
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 94
him elsewhere (Reyes, The Revised Penal Code—Criminal Law, Vol. I, 1993
ed., citing the dissenting opinion of Justice Villareal in People vs. Ambis, 68
Phil. 635 [1939] and Viada, 5th ed., Vol. II, pp. 323-324). We further affirm
the trial court’s finding on the presence of the aggravating circumstance of
band considering that Reynaldo Aliman testified that accusedappellants
Patalin and two other companions (one of whom was later identified as
accused-appellant Mijaque) entered his home (tsn, p. 7, Dec. 16, 1986). This
was corroborated by Josephine Belisario who even saw four (4) persons
enter their gate, one of whom was accusedappellant Patalin (tsn, p. 10, June
30, 1988). These same aggravating circumstances likewise attended the
commission of the crime of robbery with multiple rape in Criminal Case No.
18305 and this was clearly testified to by the victims thereof who stated that
five persons, including accused-appellant Patalin, armed with a bolo, a knife,
and a long gun, entered their dwelling that unfortunate night (tsn, June 29,
1989, p. 10; February 15, 1990, p. 5).
Same; Same; Arrests; Any objection, defect, or irregularity attending an
arrest must be made before the accused enters his plea.—With respect to
accused-appellants Patalin and Mijaque’s defense that they were arrested
without warrants, suffice it to say that any objection, defect, or irregularity
attending an arrest must be made before the accused enters his plea (Padilla
vs. CA, 269 SCRA 402 [1997]). As correctly pointed out in the People’s
consolidated brief, the record shows no objection was ever interposed prior
to arraignment and trial (p. 324, Rollo).
Same; Same; Conspiracy; Conspiracy exists when two or more persons come
to an agreement concerning the commission of a felony and decide to
commit it.—Conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to commit it
(People vs. Abarri, 242 SCRA 39 [1995]). It cannot be merely presumed.
Similar to the physical act constituting the crime itself, the elements of
conspiracy must be proven beyond reasonable doubt.
Constitutional Law; Death Penalty; There is no question that the abolition of
the death penalty benefits herein accusedappellants.—There is no question
that the abolition of the death penalty benefits herein accused-appellants.
Perforce, the subsequent reimposition of the death penalty will not affect
them. The framers of the Constitution themselves state that the law to be
passed by Congress reimposing the death penalty (Republic Act 7659) can
only have prospective application (Bernas, The 1987 Constitution the
Republic of the Philippines: A Commentary, 1996 ed., p. 508, citing I

RECORD, p. 748; Bernas, The Intent of the 1986 Constitution Writers, 1995
ed., p. 227, citing I Record, p. 747-748).
Same; Same; Statutes; A subsequent statute cannot be so applied
retroactively as to impair a right that accrued under the old law.—There is no
question that a person has no vested right in any rule of law which entitles
him to insist that it shall remain unchanged for his benefit, nor has he a
vested right in the continued existence of a statute which precludes its
change or repeal, nor in any omission to legislate on a particular matter.
However, a subsequent statute cannot be so applied retroactively as to
impair a right that accrued under the old law (Agpalo, Statutory
Construction, 1986 ed., p. 264, citing Benguet Consolidated Mining Co. vs.
Pineda, 98 Phil. 711 [1956]; Laurel vs. Misa, 76 Phil. 372 [1946]). Courts
have thus given statutes strict construction to prevent their retroactive
operation in order that the statutes would not impair or interfere with vested
or existing rights. Clearly, accused-appellants’ right to be benefited by the
abolition of the death penalty accrued or attached by virtue of Article 22 of
the Revised Penal Code. This benefit cannot be taken away from them.
AUTOMATIC REVIEW of a decision of the Regional Trial Court of Iloilo City,
Br. 25.
The facts are stated in the opinion of the Court.
     The Solicitor General for plaintiff-appellee.
     Teofilo G. Leonidas, Jr. for Alfonso Patalin, Jr.
     Barrera Law Office for Alex Mijaque.
     Francisco G. Guiritan for Nestor Ras.
DECISION
MELO, J.:
Accused-appellants Alex Mijaque and Alfonso Patalin, Jr. were charged
before Branch 25 of the Regional Trial Court of the 6th Judicial Region
stationed in Iloilo City, with the crime of robbery. * The Amended Information
dated October 11, 1985 charged:
That on or about August 11, 1984, in the municipality of Lambunao, province
of Iloilo, Philippines, and within the jurisdiction of this Court, the above
named two (2) accused, conspiring, confederating and cooperating with
three (3) others whose identities are still unknown and who are still at large,
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 95
armed with bladed weapons by means of force, violence and intimidation,
taking advantage of the nighttime to better realize their purpose, and in the
dwelling of the offended party, did then and there wilfully, unlawfully and
feloniously take, steal and carry away, with intent to gain, cash amount of
Three Hundred (P300.00) Pesos, Philippine Currency, owned by the victim
Corazon Aliman and the following personal property: one (1) adjustable
wrench, one (1) vise grip, one (1) screw driver, one (1) pair of levis pants,
one (1) travelling bag and one (1) wallet containing ten (P10.00) pesos, with
a total value of Four Hundred (P400.00) Pesos, Philippine Currency, owned
by the victims Reynaldo Aliman and Josephine Belesario, the over all total of
cash and personal property being SEVEN HUNDRED (P700.00) PESOS,
Philippine Currency, without the consent of the above-mentioned offended
parties and to their damage and prejudice in the aforestated amount; that by
reason or on the occasion of said Robbery, the above named two (2)
accused did then and there hack victim Reynaldo Aliman twice hitting him
and inflicting wounds which required medical attendance of more than thirty
(30) days, as well as inflict physical injuries to the other victims Corazon
Aliman and Josephine Belesario causing them to sustain injuries requiring
medical attendance for several number of days.
CONTRARY TO LAW.
(pp. 92-93, II Record.)
In a Second Amended Information also dated October 11, 1985 and
docketed as Criminal Case No. 18305, accused-appellants Alex Mijaque,
Alfonso Patalin, Jr., and Nestor Ras were charged before the same court with
the crime of robbery with multiple rape, thusly:
That on or about August 11, 1984, in the municipality of Lambunao, province
of Iloilo, Philippines, and within the jurisdiction of this Court, the above-
named three (3) accused, with deliberate intent, and without any justifiable
motive, conspiring, confederating and working together with Richard Doe,
Philip Doe and Robert Doe who are still at large, all armed with firearms and
other deadly weapons, thereby performing [sic] themselves into a band,
entered the dwelling of Jesusa Carcillar, and once inside, with intent to gain
and with violence against, and/or intimidation of persons, did then and there
wilfully, unlawfully and feloniously take, steal and carry away Five Hundred
(P500.00) Pesos in cash, one (1) ring worth Two Thousand (P2,000.00)
Pesos, one (1) pair of earrings worth One Thousand (P1,000.00) Pesos, and
one (1) Seiko wrist watch worth Three Thousand (P3,000.00) Pesos, making
a total of Six Thousand Five Hundred (P6,500.00) Pesos, against the will
and/or consent of the owner; that on the occasion thereof, the above-named
three (3) accused, conspiring and working together with their companions
who are still at large, by means of force and intimidation, did then and there
wilfully, unlawfully and feloniously have sexual intercourse with Perpetua

Carcillar, Juliana Carcillar, Rogelia Carcillar and Josephine Belesario, against
their will and consent.
CONTRARY TO LAW.
(pp. 90-91, II Record.)
Upon arraignment on November 12, 1985, accused-appellants entered a
plea of not guilty to both crimes charged (p. 103, II Record).
After trial on the merits, a joint judgment was rendered, disposing:
Wherefore, premises considered there being sufficient and satisfactory proof
showing that the accused in these two cases are guilty beyond reasonable
doubt of the charges filed against them, they are hereby sentenced as
follows:
a) In Crim. Case No. 18376 for Robbery with Physical Injuries, accused
Alfonso Patalin, Jr. and Alex Mijaque are penalized to suffer the
indeterminate penalty of imprisonment of Ten (10) years, and One (1) day of
Prision Mayor, as minimum, to Seventeen (17) years and Four (4) months of
Reclusion Temporal, as maximum, to indemnify Corazon Aliman the amount
of P700.00 representing the value of her property robbed from her and also
to indemnify Reynaldo Aliman the amount of P8,000.00 representing the
expenses he incurred for his medication and hospitalization due to the
wounds he suffered.
b) In Criminal Case No. 18305 for Robbery with Multiple Rapes, accused
Alfonso Patalin, Jr., Alex Mijaque and Nestor Ras are sentenced to a death
penalty and to indemnify the members of the Carcillar family the amount of
P6,500.00 representing the cash and articles taken from them.
In both cases the accused are also ordained to pay the costs.
SO ORDERED.
(p. 80, Rollo.)
The trial court arrived at the aforestated conclusion based on the
following findings:
Criminal Case No. 18376
The crime of robbery (with physical injuries) was indeed committed by
accused-appellants Alfonso Patalin, Jr. and Alex Mijaque, as well as by their
unidentified companions, based on the positive identification made by
complaining witness Corazon Aliman, and corroborated by her son Reynaldo
and the latters half sister Josephine Belisario (p. 77, Rollo).
Criminal Case No. 18305
Accused-appellants Alfonso Patalin, Jr., Alex Mijaque, and Nestor Ras,
as well as an unidentified companion, acted in concert to commit the crime
of robbery with multiple rape. They were positively identified by the following
witnesses: Juliana Carcillar who was raped twice by Alex Mijaque; Josephine
Belisario who was raped once by Alex Mijaque; Rogelia Carcillar who was
raped by Alex Mijaque; and Perpetua Carcillar, who was raped by Nestor
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 96
Ras, after Alfonso Patalin, Jr. failed in his attempt to rape her. Accused-
appellant Patalin was likewise identified by Reynaldo Aliman who personally
knew him as a former barangay-mate for along time, as well as by Corazon
Aliman, mother of Reynaldo. The identification of accused-appellants was
facilitated and aided by a bright full moon and due to the fact that they
tarried in the crime scene for a long period of time, thus allowing their
victims to imprint in their memory the countenance or visage of accused-
appellants. Said positive and clear identification by the complaining
witnesses, who were not shown to have any ill motive to falsify the truth and
to implicate accused-appellants, prevails over the latters defense of
denial. Band, nocturnity, and dwelling, were likewise appreciated against
accused-appellants (pp. 78-79, Rollo).
The errors assigned by accused-appellants in their individual briefs are
summarized as follows: (1) The trial court erred in finding that accused-
appellants are responsible for the crimes charged; (2) The trial court erred in
convicting accused-appellant Patalin notwithstanding the fact that the latter
was arrested without a warrant; (3) Assuming without conceding that
accused-appellants (Patalin and Ras) committed the crimes charged, the trial
court erred in imposing the penalty of death as the same was suspended
upon the ratification of the 1987 Constitution (pp. 86, 146, 204, Rollo).
The prosecutions version of the August 11, 1984 incident, based on the
testimony of prosecution witnesses Dr. Edgardo Carmelo, Dra. Leticia Sitchon
Santiago, Reynaldo Aliman, Corazon Aliman, Josephine Belisario, Juliana
Carcillar, Rogelia Carcillar, and Perpetua Carcillar, is summarized in the
Solicitor Generals consolidated Brief, as follows:
At about 7:30 in the evening of August 11, 1984, while Reynaldo Aliman, his
half sister Josephine Belisario, and their mother Corazon Aliman were having
a conversation inside their house at Barangay Lumanay, municipality of
Lambunao, province of Iloilo, appellant Alfonso Patalin, Jr., who was outside
the fenced perimeter of said house, called out Reynaldo Aliman by his
nickname and asked the latter to let him and the other persons with him in
(pp. 5-6, TSN, Dec. 16, 1986).
Reynaldo Aliman opened the window and, because of the moonlight, saw
appellant Alfonso Patalin, Jr. with (2) other persons. Appellant Alfonso
Patalin, Jr. asked again Reynaldo Aliman to let them in (pp. 7-8,
ibid.). Reynaldo Aliman opened the gate and Alfonso Patalin together with
his companions, one of whom is appellant Alex Mijaque, entered the
premises (pp. 8, 10-11, ibid.). Immediately upon entering, appellant Alfonso
Patalin, Jr. pointed the beam of his flashlight at Reynaldo Aliman. At this
juncture, appellant Alex Mijaque hacked Reynaldo Aliman twice with a bolo
hitting the latter at the neck, right arm, and the chest (pp. 14-16,
ibid.). Thereupon, Reynaldo Aliman immediately ran away (p. 17, ibid.).

Corazon Aliman and Josephine Belisario, who went to the balcony of their
house, witnessed the hacking incident and the former shouted for help (p. 6,
TSN, July 21, 1987; pp. 8-9, TSN, June 30, 1988). Two of the assailants, one
of whom is appellant Alex Mijaque, pushed Corazon Aliman and Josephine
Belisario inside their house, covered their mouth and told them not to make
any noise. Later, appellant Alex Mijaque dragged Josephine Belisario to the
house of the latters aunt (sister of Corazon Aliman) which is beside their
house. The other man stayed put and while holding a double-bladed knife,
threatened to kill Corazon Aliman if the latter will not give him money. After
Corazon Aliman gave him three hundred pesos (P300.00) cash, he ransacked
the house and took one (1) wrist watch, one (1) vise grip, one (1) screw
driver, one (1) pair of Levis trousers, one (1) travelling bag, and one (1)
wallet containing ten pesos (P10.00); the total value thereof is seven
hundred pesos (P700.00) inclusive of the three hundred pesos (P300.00)
cash. Thereafter, the man also dragged Corazon Aliman to her sisters house
(pp. 6-8, TSN, July 21, 1987; pp. 11-12, TSN, June 30, 1988).
Josephine Belisario, who was dragged by Alex Mijaque to her aunts house
which is just twenty (20) meters away, saw six (6) persons, one of whom is
appellant Alfonso Patalin, Jr., outside the house of her aunt. Josephine
Belisario was forced to call out her aunts name and ask that the door be
opened for her. While the door was being opened, it was kicked by one of
the six (6) persons. Alfonso Patalin immediately went in, boxed the aunt of
Josephine Belisario on the body and announced that they are staging a hold-
up. The other companions of appellant Alfonso Patalin, Jr., including
appellant Alex Mijaque, who were armed with knives, a bolo, and a gun also
went in and restrained Josephine Belisarios cousins, namely Rogelia, Juliana,
Perpetua, Roy, and Victoriano, who are all surnamed Carcillar (pp. 11-15,
TSN, June 30, 1988; p. 11, TSN, June 29, 1989). Josephine Belisario
together with her aunt and cousins were all forced to lie face down on the
floor of the sala (p. 15, TSN, June 30, 1988; p. 7, TSN, Feb. 15,
1990). Appellant Alfonso Patalin got hold of Mrs. Carcillar (Josephine
Belisarios aunt and the mother of her cousins), kicked and boxed the latter
and exclaimed: Money, money. It is money we want. Appellant Alfonso
Patalin forced Mrs. Carcillar into a room where the latter gave him money (p.
16, TSN, June 30, 1988; pp. 7-8, February 15, 1990). Then, appellants and
their companions seized the following personalities of the Carcillars: (1) one
Seiko 5 wristwatch worth three thousand pesos (P3,000.00), (2) two (2)
pairs of ladys rings worth two thousand (P2,000.00), (3) one (1) pair of
earrings, and (4) two (2) travelling bags (p. 9, TSN, February 15, 1990).
Rogelia Carcillar was brought outside their house by appellant Alex Mijaque
who was armed with a butchers knife and threatened to kill her if she will
not lie down. Because of fear, she did as she was told (pp. 10, 16-17, TSN,
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 97
February 15, 1990). Appellant Alex Mijaque forcibly removed her underwear
and placed himself on top of Rogelia. She tried to resist but appellant Alex
Mijaque pressed the tip of his knife at the formers neck and succeeded in
having sexual intercourse with her (pp. 11-12, ibid.). Thereafter, appellant
Alex Mijaque brought her inside the house and ordered her to lie face down
on the floor again (pp. 13-14, ibid.). Then, one of the companions of
appellant Alex Mijaque who was armed with a gun took her outside and
brought her to a place not far from where she was raped (p. 14, ibid.). This
man, at the point of a gun, threatened to kill her if she will not obey his
orders. Rogelia Carcillar, who feared for her life, was left with no choice but
to obey the mans orders. There, she was raped for the second time by this
gun-wielding man (pp. 15-16, ibid.). While Rogelia Carcillar was being raped,
appellant Alfonso Patalin was also outside the house standing on guard (p.
18, ibid.).
Juliana Carcillar was likewise brought outside the house by appellant Alex
Mijaque who, with his knife, tried to rape her but he initially failed because of
her resistance. This angered appellant Alex Mijaque and he tried to kill
Juliana Carcillar by stabbing the latter but was prevailed upon not to do so
by one of his companions (pp. 12-15, TSN, June 29, 1989).
Appellant Alex Mijaque, after delivering fist blows on the body of Juliana
Carcillar, turned her over to one of his companions who was in the garden
outside the house and armed with a gun. This man threatened her with the
gun and mauled her. She was overpowered and he undressed her. He
inserted his finger on her sex organ and eventually succeeded in having
sexual intercourse with her (pp. 15-17, ibid.). Then, this companion of
appellant Alex Mijaque brought Juliana Carcillar back inside the house and
ordered to look for money. When she told him that they have no more
money, he kept on harming her. In the course thereof, he found and took a
Seiko wristwatch owned by Perpetua Carcillar. Then, he brought her outside
the house again where he had a brief conversation with appellants Nestor
Ras and Alfonso Patalin. She was then brought back inside the house and
ordered to lie face down on the floor again. While at this position, appellant
Alex Mijaque approached her and brought her outside the house.She refused
to obey appellant Alex Mijaques order to lie down on the ground so he
pushed her downwards. Her strength gave out and he succeeded in raping
her twice. She was then brought back inside the house (pp. 18-21, TSN,
June 29, 1989).
Josephine Belisario, while laying face down on the floor of the sala, was
dragged by appellant Alex Mijaque inside one of the rooms. He threatened
her with his knife and was able to undress her. He fondled her breasts,
pulled her pubic hair and eventually succeeded in having sexual intercourse
with her. She was then left inside the room. Two companions of appellant

Alex Mijaque came in bringing with them her cousins Rogelia and Perpetua
Carcillar. One of them saw Josephine Belisario and brought her to another
room. The man demanded money from her but she was not able to give him
money. The man was also carrying a knife and threatened her with the
same. She resisted when he was forcing her to lie down on the bed but her
strength finally gave out. He likewise succeeded in having sexual intercourse
with her. After raping her, the man took a piggy bank which was at the foot
of the bed and brought her back to the room where she was first raped. Her
aunt and cousins were also inside the said room (pp. 17-25, TSN, June 30,
1988).
Perpetua Carcillar suffered the same fate. While laying face down on the
floor of the living room, she was pulled by the heir by appellant Alfonso
Patalin and ordered to stand up. When she stood up, she realized that her
sister were no longer there. Appellant Alfonso Patalin, armed with a double-
bladed knife, brought her outside the house, ordered her to undress and lie
down. Because of fear, Perpetua Carcillar, who was then only thirteen (13)
years old, obeyed appellant Alfonso Patalin. He tried to force his penis into
her vagina but did not succeed. Then, appellant Alfonso Patalin handed her
over to appellant Nestor Ras, a member of their group who was only about
two (2) arms length away. Appellant Nestor Ras, armed with a double-bladed
knife which he was pointing at Perpetua Carcillar, ordered her to lie
down. He fondled her breasts, kissed her, and succeeded in having sexual
intercourse with her. After raping her, appellant Nestor Ras brought her back
inside the house. When she was returned inside the house, the intruders
were still demanding for money from her mother and were taking turns in
beating the latter (pp. 4, 15-23, TSN, July 12, 1990).
Appellants left, together with the other assailants, taking with them the
valuables stated earlier after threatening them not to report the matter to
the police or else they will return and kill all of them (p. 19, TSN, February
15, 1990).
Reynaldo Aliman was brought to Ricardo Ladrido Memorial Hospital where he
received first aid. He was then brought to West Visayas Medical Center
located in Manduriao, Iloilo (pp. 18-20, TSN, December 16, 1986) and was
treated by Dr. Edgardo Carmelo (p. 4, TSN, May 14, 1986). Reynaldo Aliman
sustained the following injuries: (1) hack wound, mid forearm, area ulnar
side middle third forearm, and (2) hack wound, left side of neck (pp. 5-6,
ibid; Exhibit A). Reynaldo Aliman was confined in the hospital for almost
three (3) months and he spent more than eight thousand pesos (P8,000.00)
for medicines, food and other expenditures (p. 19, TSN, December 16,
1986).
Dr. Leticia Sitchon Santiago examined and treated Josephine Belisario two
days after she was raped. A hematoma, about 3x4 inches in diameter, was
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 98
found on the left shoulder of Josephine Belisario which could have been
caused by forcing the latter to lie down on the ground. Josephine Belisario
vagina admits two (2) fingers. Further, hematoma was noted in the hymen
at nine oclock and three oclock positions and fresh lacerations was also
noted at nine, eleven, and three oclock positions. These are indications that
a foreign object, which could be a human penis, was inserted in the vagina
and caused the lacerations of the hymen (pp. 6-9, TSN, September 3, 1986).
Rogelia Carcillar, Juliana Carcillar and Perpetua Carcillar were also examined
and treated by Dr. Leticia Santiago but such was conducted three days after
the incident (p. 17, ibid).
A hematoma was noted in the occipital region of the head of Rogelia Carcillar
(p. 18, ibid). Her vagina admits two fingers snugly and the perineum has a
lacerated wound which is one centimeter in length (pp. 18-19, ibid; pp. 2-3,
TSN, November 10, 1986). Fresh lacerations were likewise noted in her
hymen at eight, eleven and three oclock positions (p. 3, TSN, November 10,
1986). Dr. Santiago further testified that a foreign object was inserted in the
vagina of Rogelia Carcillar (p. 19, TSN, September 3, 1986; p. 3, TSN,
November 10, 1986).
Juliana Carcillar, 22 years old, sustained a hematoma in the forehead, left
and right side of the face, upper right arm, uppermost and lower portions of
the left thigh, occipital region of the head and left side of the mouth. She
also sustained the following injuries: (1) cm. lacerated wound on the left side
of the lower lip, (2) bite mark with hematoma on the left shoulder, (3) 1 cm.
incised wounds on the right index finger and right thumb, (4) 4 inches
incised wound on the right forearm, and (5) multiple abrasions at the back
including the portion below the waistline, her vagina admits two fingers and
fresh lacerations in the hymen were noted at eight, eleven, and four oclock
positions (pp. 10-15, TSN, November 10, 1986).
Perpetua Carcillar, 13 years old, sustained a 1 centimeter lacerated wound
on the perineum which was also swollen. Her vagina admits two fingers
snugly (pp. 8-9, ibid). A fresh laceration at six oclock position and a
hematoma also at six oclock position were noted on her hymen (Exhibit C, p.
15, Record).
(pp. 300-311, Rollo.)
Denial and alibi were set up by accused-appellants based on their
testimony and that of their witnesses, Alejandro Tabucan, Felizardo Lebona,
Rhodora Losaria, and Cristina Gumban. The denials, together with other
arguments, are summarized as follows:
Alfonso Patalin
Accused-appellant Alfonso Patalin alleges that his name was only
included by Jesus Larang, whom he described as the landlord of Jesusa
Carcillar and the Carcillar sisters, to force him to reveal the names of the

persons who staged the robbery and rape. Verily, he declared on the stand
that when the victims saw him at the police station, two of them (Josephine
Belisario and Reynaldo Aliman) even smiled at him (tsn, August 13, 1993,
pp. 10-11, 19-20).
In his brief, he argues that he was not positively identified, rationalizing
that when prosecution witness Josephine Belisario was asked on the stand if
she recognized the person who called [her] brother Reynaldo, said witness
responded that she did not know the person who called her brother, and that
she only recognized the callers voice (tsn, August 11, 1988, pp. 30-
31). Further, accused-appellant Patalin also alleges that he was arrested
without a warrant.
Alex Mijaque
Accused-appellant Alex Mijaque argues that in the sworn statement of
Reynaldo Aliman (p. 3, II Record), there is no mention of his name nor that
of accused-appellant Patalin as the perpetrators of the crimes
charged. Moreover, during the preliminary examination in the lower court,
accused-appellant Mijaque was also not named as one of the malefactors. He
likewise points out that in the police blotter, the first report mentioned that
the alleged offenders were unknown persons. No rape was reported. In the
second report, it was blottered that the alleged offenders were four
unidentified persons. Again, no rape was reported. Accused-appellant
Mijaque likewise takes note of the report given by Rogelia Carcillar who
merely narrated the robbery but did not report any rape.
According to this accused-appellant, the police authorities of Iloilo,
Manduriao (also referred to in the record as Mandurriao) received a
complaint from a resident thereat that his television set was stolen previous
to the incidents herein involved. Accused-appellant Mijaque was suspected as
the thief and was picked up by the agents of the Manduriao Police Station
without any warrant of arrest and was thence detained for three days
without any complaint (p. 93, Rollo). Meanwhile, the robbery at Lambunao,
Iloilo was being flashed at all police stations in Iloilo. The arresting officers of
the Manduriao Police Station, so accused-appellant Mijaque contends, in
order to save themselves from charges of arbitrary detention, immediately
referred him for custodial investigation in regard to the Lambunao
robbery.Consequently, three days after his confinement, a criminal complaint
for robbery with physical injuries and another for robbery with rape was filed
against him by the Chief of Police of Lambunao, Iloilo.
Nestor Ras
The third accused-appellant, Nestor Ras, argues that his name was
never mentioned by Dr. Edgardo Carmelo, and that Josephine Belisario was
merely led by the public prosecutor into mentioning his name. He also states
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 99
that the witnesses declarations as regards his identification are confusing
and inconsistent (pp. 208-210, Rollo).
Further, it is contended that Rogelio Carcillar himself, when asked by
the public prosecutor about what happened to his sister Perpetua Carcillar,
testified that Nothing happened to them (p. 210, id). And when Perpetua
Carcillar and the other female prosecution witnesses reported the alleged
incident to the police authorities, they never mentioned that they were
raped.
As mentioned, all three accused-appellants, aside from denying the
charges, also presented their respective alibis. Accused-appellant Patalin
testified that he was at home with his parents, wife, and children, at Pandan,
Lambunao (tsn, August 13, 1993, pp. 16-17) at the time of the incident. As
corroborative witness, he presented Felizardo Lebona, the person in charge
of the plantation where he was working, who testified that accused-appellant
Patalin did not leave the plantation house from August 9 to 12, 1984 (tsn,
October 15, 1993, pp. 4-5).
For his part, accused-appellant Mijaque insists that he had no
opportunity to get out of the farm where he was working which was located
in Manduriao, Iloilo (tsn, May 6, 1993, p. 6). In July, 1985, he was arrested
for theft of a television set and detained in the Lambunao jail for
investigation. Although three of the herein complainants were brought in
front of his detention cell, he was not identified. Instead, the policemen
pointed to him and said, That is Alex Mijaque who raped you. If you will not
include him, he will file a case against you. Moreover, he testified that he
was mauled in jail (tsn, July 29, 1993, pp. 10-13). Defense witness,
Alejandro Tabucan, neighbor of accused-appellant Mijaque, corroborated the
latters alibi that on August 11, 1984, they had a drinking spree from 6 oclock
in the evening to 12 oclock midnight, and accused-appellant Mijaque was not
able to leave the premises in Manduriao. Tabucan also said that he saw
Mijaque still asleep the following morning (tsn, August 6, 1993, pp. 4-5, 10).
Lastly, accused-appellant Nestor Ras declared that he was in the
province of Antique (particularly, in Igbangkal, Dao) on August 11, 1984
(tsn, December 17, 1993, p. 4). As corroborative witness, he presented
Cristina Gumban, a vendor who testified that on August 11, 1984, she
bought cassava and sweet potatoes from accused-appellant Ras in
Igbangkal, Dao, Antique from 3 oclock to 5 oclock in the afternoon, and that
he saw Ras put the purchased items in a sack (tsn, March 4, 1994, p. 4).
We are not persuaded by the above posturings and are compelled to
affirm.
Of primordial consideration in appellate matters is the legal principle
that the assessment of the credibility of witnesses and their testimony is a
matter best undertaken by the trial court because of its unique opportunity

to observe the witnesses firsthand and to note their demeanor, conduct, and
attitude under grilling examination (People vs. Ombrog, 268 SCRA 93
[1997]). We generally uphold and respect this appraisal since, as an
appellate court, we do not deal with live witnesses but only with the cold
pages of a written record (People vs. Herbieto, 269 SCRA 472 [1997]).
A close examination of the record convinces us of the prosecution
witnesses credibility, particularly the ravished victims, who, for approximately
two agonizing hours, were subjected to a hellish nightmare occurring in the
very privacy of their own homes.
As pointed out by the Office of the Solicitor General in its consolidated
brief, the defense was not able to prove any motive on the part of the
private complainants to falsely testify that they were robbed and raped by
accused-appellants. In fact, two of the rape victims, Josephine Belisario and
Rogelia Carcillar, were even married to first cousins of accused-appellant
Patalin (pp. 327-328, Rollo), and would not ordinarily turn against a relative
although this be by mere affinity unless they really suffered the fate they
narrated.
Accused-appellants rely on the delay or vacillation on the part of the
complaining witnesses. As discussed above in their individual defenses, they
emphasize that Reynaldo Aliman failed to mention the names of the
perpetrators in his sworn statement; that on August 11, 1984, Reynaldo
instructed a relative, Jesus Larang, to report the hacking and robbery
incidents at the Lambunao Police Department, as well as the robbery
committed in the Carcillar household, and that the police blotter stated that
the alleged offenders were unknown persons but contained no report of any
rape; and that Rogelia Carcillars report did not mention that she was raped.
Time and again, we have ruled that delay in lodging a criminal
accusation does not impair the credibility of a witness if such delay is
satisfactorily explained (People vs. Bugarin, 273 SCRA 384 [1997]).An
examination of Reynaldo Alimans sworn statement (p. 3, I Record) shows
that he clearly identified one of the callers as accused-appellant Alfonso
Patalin. Anent his failure to mention accused-appellant Mijaques name, he
explained on cross-examination that he did not know yet the name of the
person who attacked him with the bolo at the time he executed his sworn
statement (tsn, Dec. 16, 1986, pp. 35, 38-39). It was only later that he
found out that the name of his assailant was Alex Mijaque. As regards Jesus
Larang, the fact that he mentioned unknown persons in his report does not
affect Reynaldos categorical and positive identification of accused-appellants
Patalin and Mijaque as the perpetrators of the hacking and robbery incidents
at his home.
Anent the rape victims, it was clearly explained that their assailants told
them not to report the matter to the police, otherwise, the assailants will
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 100
return and kill them (tsn, Feb. 15, 1990, p. 19). The victims were overcome
by fear and shame ( ibid., p. 31). Besides, the delay in reporting the multiple
rapes was not procrastination as this was only 3 days from the date of the
incident (tsn, June 30, 1988, p. 22), a far shorter period than those
mentioned in People vs. Gecomo (254 SCRA 82 [1996]) where we held that a
delay of 17 or 35 days, or even 6 months, by a victim of rape in reporting
the attack on her honor, does not detract from the veracity of her charge.
The defense also notes certain inconsistencies in the testimony of the
complaining witnesses, as follows: (1) Juliana Carcillar testified earlier that
the only light in the house came from a kerosene lamp placed on a small
table which was extinguished as a result of it being knocked down, thus
placing the house in darkness, while on the other hand, Perpetua Carcillar,
earlier said that although there was no more light in the house coming from
the lamp, yet she could still see because the light of the moon still
illuminated their house, allegedly through the plastic roofing; and (2) the
prosecution witnesses could not agree concerning the date they went to San
Dionisio, Iloilo to identify accused-appellant Nestor Ras, as well as the date
when Ras was arrested.
Inconsistencies in the testimony of witnesses, when referring only to
minor details and collateral matters do not affect either the substance of
their declaration, their veracity, or the weight of their testimony, and do not
impair the credibility of such witnesses where there is consistency in relating
the principal occurrence and the positive identification of the assailant
(Sumalpong vs. Court of Appeals , 268 SCRA 764 [1997]). In fact, honest
inconsistencies on minor and trivial matters serve to strengthen rather than
destroy the credibility of a witness to a crime, especially so when the crime is
shocking to the conscience and numbing to the senses ( People vs. Agunias,
279 SCRA 52 [1997]).
With respect to the defenses of denial and alibi, significantly, these
defenses, if unsubstantiated by clear and convincing evidence, are negative
and self-serving, deserve no weight in law, and cannot be given evidentiary
value over the testimony of credible witnesses who testify on affirmative
matters (People vs. Gayon, 269 SCRA 587 [1997]). Positive identification,
where categorical and consistent and without any showing of ill motive on
the part of the eyewitnesses testifying on the matter, prevails over alibi and
denial (People vs. Javier, 269 SCRA 181 [1997]). Verily, even if the defense
of denial is supported by the testimony of friends of the accused, it deserves
the barest consideration (People vs. Gamiao, 240 SCRA 254 [1995]). It will
be given weight only if it would preclude any doubt that the accused could
not have been physically present at the place of the crime or its vicinity at
the time of commission ( People vs. Daquipil, 240 SCRA 314 [1995]; People
vs. De Roxas, 241 SCRA 369 [1995];People vs. Morin, 241 SCRA 709

[1995]; People vs. Rivera, 242 SCRA 26 [1995]; People vs. Dela Iglesia, 241
SCRA 718 [1995]; People vs. Umali, 242 SCRA 17 [1995]; People vs. Dayson,
242 SCRA 124 [1995]; People vs. Espinosa, Jr. 243 SCRA 7 [1995]; People
vs. Parica,  243 SCRA 557 [1995]; People vs. Escoto, 244 SCRA 87 [1995]).
Accused-appellant Mijaque testified that on August 11, 1984, he was in
Manduriao, Iloilo. The overland travel time from the town of Manduriao to
Lambunao is approximately one hour and twenty minutes. Accused-appellant
Patalin testified that he was in Barangay Pandan, which is merely adjacent to
Lambunao. Lastly, accused-appellant Nestor Ras testified that he was in
Antique, a province neighboring Iloilo, which is approximately two hours
away therefrom via overland transportation. The defense tried to corroborate
these alibis by presenting witnesses who testified on details which happened
ten years prior to the date their testimony was given, and hence of naturally
doubtful credibility.
Mutatis Mutandi People vs. Queliza  (279 SCRA 145 [1997]), considering
that the places where accused-appellants alleged they were at could be
traversed by motorized vehicles, it was not impossible that accused-
appellants could not have been at the crime scene by 7 oclock or 7:30
o'clock in the evening on August 11, 1984. More importantly and damming
yet is the positive identification of their presence thereat by the victims.
The trial court correctly appreciated the aggravating circumstances of
nighttime and dwelling in Criminal Case No. 18376 considering that nighttime
facilitated the commission of the crime and the evidence shows that
accused-appellants took advantage of the darkness to successfully
consummate their plans (People vs. Apduhan, Jr.,  24 SCRA 798
[1968]). Dwelling is clear from the abuse of confidence which the victims
reposed in the offenders by opening the door to them, as well as the
violation of the sanctity of privacy in the victims homes. He who goes to
anothers house to slander him, hurt him, or do him wrong, is more guilty
than he who offends him elsewhere (Reyes, The Revised Penal Code Criminal
Law, Vol. I, 1993 ed., citing the dissenting opinion of Justice Villareal
in People vs. Ambis, 68 Phil. 635 [1939] and Viada, 5th ed., Vol. II, pp. 323-
324). We further affirm the trial courts finding on the presence of the
aggravating circumstance of band considering that Reynaldo Aliman testified
that accused-appellants Patalin and two other companions (one of whom
was later identified as accused-appellant Mijaque) entered his home (tsn, p.
7, Dec. 16, 1986). This was corroborated by Josephine Belisario who even
saw four (4) persons enter their gate, one of whom was accused-appellant
Patalin (tsn, p. 10, June 30, 1988). These same aggravating circumstances
likewise attended the commission of the crime of robbery with multiple rape
in Criminal Case No. 18305 and this was clearly testified to by the victims
thereof who stated that five persons, including accused-appellant Patalin,
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 101
armed with a bolo, a knife, and a long gun, entered their dwelling that
unfortunate night (tsn, June 29, 1989, p. 10; February 15, 1990, p. 5).
With respect to accused-appellants Patalin and Mijaques defense that
they were arrested without warrants, suffice it to say that any objection,
defect, or irregularity attending an arrest must be made before the accused
enters his plea (Padilla vs. CA, 269 SCRA 402 [1997]). As correctly pointed
out in the Peoples consolidated brief, the record shows no objection was
ever interposed prior to arraignment and trial (p. 324, Rollo).
It is indubitable that there was conspiracy in the commission of the
crimes in both Criminal Cases No. 18376 and 18305. In the first criminal
case, the evidence clearly shows that accused-appellants Patalin and
Mijaque, together with unidentified companions, committed the crime
charged. Said culprits shared the common criminal objective of robbing the
victims and inflicting wounds upon Reynaldo Aliman on the occasion of the
robbery. In the second case, all three accused-appellants (together with
unidentified companions), who were positively identified by the victims
themselves, undoubtedly had the common criminal design of robbing the
household of Jesusa Carcillar, and of committing multiple rape on the
occasion of the robbery. Accused-appellant Mijaque dragged Josephine
Belisario to her aunts house and the other culprits followed suit. Accused-
appellant Patalin boxed Jesusa Carcillar and announced that they were
staging a hold-up. After robbing the household, they proceeded in ravishing
the four young female victims, Rogelia, Juliana, Josephine, and Perpetua,
one after the other, thus truly exhibiting their concerted acts.
Conspiracy exists when two or more persons came to an agreement
concerning the commission of a felony and decide to commit it ( People vs.
Abarri, 242 SCRA 39 [1995]). It cannot be merely presumed. Similar to the
physical act constituting the crime itself, the elements of conspiracy must be
proven beyond reasonable doubt.
In the case at bar, although there was no proof of previous actual
agreement among accused-appellants adduced at the trial
...direct proof is not essential to show conspiracy. It need not be shown that
the parties actually came together and agreed in express terms to enter into
and pursue a common design. The existence of the assent of minds which is
involved in a conspiracy maybe, and from the secrecy of the crime, usually
must be, inferred by the court from proof of facts and circumstances which,
taken together, apparently indicate that they are merely parts of some
complete whole. If it is proved that two or more persons aimed by their acts
towards the accomplishment of the same unlawful object, each doing a part
so that their acts, though apparently independent, were in fact connected
and cooperative, indicating a closeness of personal association and a
concurrence of sentiment, then a conspiracy maybe inferred though no

actual meeting among them to concert means is proved (People vs.
Carbonel, 48 Phil. 868; See also People vs. Viray, 147 SCRA 146; People vs.
Balignasay, G.R. No. 76743, May 22, 1992; People vs. Galit, 230 SCRA
486)...
(People vs. Miranday, 242 SCRA 620 [1995]).
Verily, the participation of each of the accused-appellants was exhibited
by the straightforward testimony of the victims themselves.
This brings us to the crucial issue raised by accused-appellants on the
death penalty. At the time the crimes charged were committed in 1984,
robbery with rape was punishable by death (Art. 294, Revised Penal
Code). However, by virtue of the ratification of the 1987 Constitution,
specifically Paragraph (1), Section 19 of Article III thereof, the death penalty
was abolished. Hence, the argument that it could not be imposed upon
accused-appellants. Said provision reads as follows:
Sec. 19 (1) Excessive fines shall not be imposed, nor cruel, degrading or
inhuman punishment inflicted. Neither shall death penalty be imposed,
unless, for compelling reasons involving heinous crimes, the Congress
hereafter provides for it. Any death penalty already imposed shall be reduced
to reclusion perpetua.
The constitutional abolition of the death penalty immediately took effect
upon the ratification of the 1987 Constitution. However, said provision left
the matter open for Congress to revive capital punishment at its discretion,
for compelling reasons involving heinous crimes. Simply stated, it did not
prevent the legislature from reimposing the death penalty at some future
time (Bernas, The 1987 Constitution of the Republic of the Philippines: A
Commentary, 1996 ed., pp. 507-508).
Congress eventually restored the death penalty by virtue of Republic Act
No. 7659 or the Death Penalty Law which took effect on January 1, 1994.
Accused-appellants are of the position that since the Constitutions
abolition of the death penalty had retroactive effect, being beneficial to the
accused, the restoration or imposition of the death penalty on January 1,
1994 would no longer cover them notwithstanding the fact that the decision
was rendered by the trial court on June 14, 1995, when the Death Penalty
Law had already taken effect.
Article 21 of the Revised Penal Code provides that no felony shall be
punishable by any penalty not prescribed by law prior to its commission. At
the time of the commission of the crime in 1984, as held by the trial court,
robbery with rape, if committed with the use of a deadly weapon or by two
or more persons, was punishable by reclusion perpetua to death (Article
294[2], Revised Penal Code [as amended by Presidential Decree No. 767]).
True, in 1987, the Constitution abolished the death penalty subject to
Congress future restoration thereof for compelling reasons involving heinous
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 102
crimes. At the time of such ratification, the instant case was still at its trial
stage. No penalty had as yet then been imposed. Considering that the
provision provides that [a]ny death penalty already imposed shall be reduced
to reclusion perpetua, it is clear that the framers intended said provision to
have a retroactive effect on cases pending without any penalty of death
having been imposed yet. Consequently, upon ratification of the 1987
Constitution, any death penalty already imposed is automatically without
need for any executive action commuted ( Bernas, The 1987 Constitution of
the Republic of the Philippines: A Commentary, 1996 ed., p. 508).
The instant case poses the following issue: When the death penalty was
abolished in 1987 and was retroactively applied to herein accused-appellants,
did they gain a vested right thereto so that any future act restoring the
death penalty would no longer cover them? An affirmative answer would free
accused-appellants from the fatal clutches of the death penalty.
Ours is a government of laws and not of men. The idea that an
individual may be compelled to hold his life (or lose it), or the means of
living, at the mere will of another, is intolerable in any country where
freedom prevails (Villavicencio vs. Lukban, 39 Phil 778 [1919]). Before us is a
heinous crime indeed where People were harmed, robbed, ravished, and
abused in the defaced sanctity of their own homes. It is but human nature to
feel some measure of loathing, disgust, and hatred for the offenders
considering the inhuman aspect of the crime committed. However, the
ascendancy of the law is axiomatic in our type of government. Every official
act must be based on and must conform to the authority of a valid law,
lacking which the act must be rejected (Cruz, Phil. Political Law, 1996 ed., p.
51). The nobility of our intention is insufficient.
There is no doubt that the abolition of the death penalty in 1987
retroactively affected and benefited accused-appellants. Article 22 of the
Revised Penal Code provides that [p]enal laws shall have a retroactive effect
insofar as they favor the person guilty of a felony, who is not a habitual
criminal . . . although at the time of the publication of such laws a final
sentence has been pronounced and the convict is serving the same.
A statute is penal when it imposes punishment for an offense committed
against the state (Aquino, The Revised Penal Code, Vol. I, 1987 ed., p.
5). The above-cited provision of the Constitution is penal in character since it
deals with the penalty to be imposed for capital crimes. This penal provision
may be given retroactive effect during three possible stages of a criminal
prosecution: (a) when the crime has been committed and the prosecution
began; (b) when sentence has been passed but the service has not begun;
and (c) when the sentence is being carried out ( Gregorio,  Fundamentals of
Criminal Law Review, 1988 ed., p. 167, citing Escalante vs. Santos, 56 Phil
483 [1932]).

In the light of the discussion above, there is no question that the
abolition of the death penalty benefits herein accused-appellants. Perforce,
the subsequent reimposition of the death penalty will not affect them. The
framers of the Constitution themselves state that the law to be passed by
Congress reimposing the death penalty (Republic Act 7659) can only have
prospective application (Bernas, The 1987 Constitution the Republic of the
Philippines: A Commentary, 1996 ed., p. 508, citing I RECORD, p.
748; Bernas, The Intent of the 1986 Constitution Writers, 1995 ed., p. 227,
citing I Record, p. 747-748).
There is no question that a person has no vested right in any rule of law
which entitles him to insists that it shall remain unchanged for his benefit,
nor has he a vested right in the continued existence of a statute which
precludes its change or repeal, nor in any omission to legislate on a
particular matter. However, a subsequent statute cannot be so applied
retroactively as to impair a right that accrued under the old law
(Agpalo, Statutory Construction, 1986 ed., p. 264, citing Benguet
Consolidated Mining Co. vs. Pineda,  98 Phil 711 [1956]; Laurel vs. Misa,  76
Phil 372 [1946]). Courts have thus given statutes strict construction to
prevent their retroactive operation in order that the statutes would not
impair or interfere with vested or existing rights. Clearly, accused-appellants
right to be benefited by the abolition of the death penalty accrued or
attached by virtue of Article 22 of the Revised Penal Code. This benefit
cannot be taken away from them.
Since the retroactive application of a law usually divests rights that have
already become vested (Benzonan vs. Court of Appeals, 205 SCRA 515
[1992]), the rule in statutory construction is that all statutes are to be
construed as having only a prospective operation unless the purpose and
intention of the legislature to give them a retrospective effect is expressly
declared or is necessarily implied from the language used ( Balatbat vs. Court
of Appeals, 205 SCRA 419 [1992]).
By analogy, we apply the rule in labor law which provides that benefits
accruing to workmen under the old law cannot be taken away from them by
a succeeding law. In the case at bar, there is greater reason to apply this
principle since the very taking of life is involved and is at issue.
As regards accused-appellants civil liability, the trial court, in Criminal
Case No. 18376, correctly awarded P700.00 to Corazon Aliman representing
the total value of the cash and personal property forcibly taken, and
P8,000.00 to Reynaldo Aliman representing expenses incurred for medication
and hospitalization. However, in Criminal Case No. 18305, the trial court
failed to order indemnification for the multiple rapes. Thus, in line with the
pronouncement in People vs. Victor (G.R. No. 127903, July 9, 1998) wherein
we said:
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 103
One other point of concern has to be addressed. Indictments for rape
continue unabated and the legislative response has been in the form of
higher penalties. The Court believes that, on like considerations, the
jurisprudential path on the civil aspect should follow the same
direction. Hence, starting with the case at bar, if the crime of rape is
committed or effectively qualified by any of the circumstances under which
the death penalty is authorized by the present amended law, the indemnity
for the victim shall be in the increased amount of not less than
P75,000.00. this 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.
accused-appellants should be made to pay P375,000.00 as indemnification
for five counts of rape (considering that Juliana Carcillar was twice raped by
accused-appellant Mijaque) in addition to the sum of P6,500.00 representing
the value of the cash and articles that were taken from the victims. In line
with the recent ruling in People vs. Prades (G.R. No. 127569, July 30, 1998),
moral damages in the amount of P50,000.00 for each count of rape, or a
total of P250,000.00 is likewise awarded. Lastly, so that the instant case may
serve as an object lesson to the public, exemplary damages in the amount of
P10,000 per count of rape is further awarded ( People vs. Burce, 269 SCRA
293 [1997]).
Because of the findings of conspiracy, accused-appellants Patalin and
Mijaque are jointly and severally liable for the amounts awarded in Criminal
Case No. 18376; whereas all three accused-appellants are solidarily liable for
the amounts awarded in Criminal Case No. 18305.
WHEREFORE, finding the conviction of accused-appellants justified by
the evidence on record, the Court hereby AFFIRMS said judgment, with the
following modifications:
(a) In Criminal Case No. 18376, for purposes of the Indeterminate
Sentence Law, considering that the aggravating circumstances of band,
nighttime, and dwelling attended the commission of the crime, accused-
appellants Patalin and Mijaque are hereby sentenced to an indeterminate
penalty ranging from six (6) years of prision correccional, as minimum, to
fourteen (14) years, eight (8) months, and one (1) day of reclusion
temporal, as maximum;
(b) Accused-appellants Patalin and Mijaque are jointly and severally held
liable for the amounts awarded by the trial court in said criminal case,
particularly, the amount of P700.00 representing the total value of the cash
and articles taken from Corazon Aliman, and P8,000.00 representing the
expenses incurred by Reynaldo Aliman for medication and hospitalization;

(c) In Criminal Case No. 18305, the penalty imposed is reduced
to reclusion perpetua; and
(d) Aside from the amount of P6,500.00 already awarded by the trial
court to the Carcillar family representing the value of the cash and articles
taken, the victims in Criminal Case No. 18305 are hereby awarded an
additional P75,000 as indemnity for each count of rape, P50,000.00 for each
count of rape as moral damages, and P10,000 for each count of rape as
exemplary damages, for which amounts all three accused-appellants are
jointly and severally liable.
SO ORDERED.
Romero, Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes,  and  Ynares-Santiago,
JJ.,  concur.
Davide, Jr., C.J.,  on leave.
G.R. No. 135981. January 15, 2004.*
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 104
PEOPLE OF THE PHILIPPINES, appellee, vs. MARIVIC GENOSA,
appellant.
Criminal Law; Parricide; Evidence; Witnesses; Appeals; 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.—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.
Same; Same; Same; Relationship; The key element in parricide is the
relationship of the offender with the victim.—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.
Same; Same; Same; Admission; Exceptions; Axiomatic is the rule that a
judicial admission is conclusive upon the party making it, with exceptions.—
Axiomatic is the rule that a judicial admission is conclusive upon the party
making it, except only when there is a showing that (1) the admission was
made through a palpable mistake, or (2) no admission was in fact made.
Same; Same; Justifying Circumstances; Self-defense; In criminal cases, self-
defense shifts the burden of proof from the prosecution to the defense.—
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 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.
Same; Same; Same; Same; Battered Woman Syndrome (BWS); The concept
has been recognized in foreign jurisdictions as a form of self-defense or, at
the least, incomplete self-defense.—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 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.”
Same; Same; Same; Same; Same; “Battered Woman”, defined; In order to
be classified as a battered woman, the couple must go through the battering
cycle at least twice.—A battered woman has been defined as a 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.”
Same; Same; Same; Same; Same; Battered women exhibit common
personality traits.—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.
Same; Same; Same; Same; Same; “Cycle of Violence”; Phases; Tension-
Building Phase; During the tension-building phase, minor battering occurs—it
could be verbal or slight physical abuse or another form of hostile behavior.
—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
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 105
and the growing tension and despair. Exhausted from the persistent stress,
the battered woman soon withdraws emotionally. But the more she becomes
emotionally unavailable, the more the batterer becomes angry, oppressive
and abusive. Often, at some unpredictable point, the violence “spirals out of
control” and leads to an acute battering incident.
Same; Same; Same; Same; Same; Acute Battering Incident; The acute
battering incident is said to be characterized by brutality, destructiveness
and, sometimes, death.—The acute battering incidentis said to be
characterized by brutality, destructiveness and, sometimes, death. The
battered woman deems this incident as unpredictable, yet also inevitable.
During this phase, she has no control; only the batterer may put an end to
the violence. Its nature can be as unpredictable as the time of its explosion,
and so are his reasons for ending it. The battered woman usually realizes
that she cannot reason with him, and that resistance would only exacerbate
her condition. At this stage, she has a sense of detachment from the attack
and the terrible pain, although she may later clearly remember every detail.
Her apparent passivity in the face of acute violence may be rationalized thus:
the batterer is almost always much stronger physically, and she knows from
her past painful experience that it is futile to fight back. Acute battering
incidents are often very savage and out of control, such that innocent
bystanders or intervenors are likely to get hurt.
Same; Same; Same; Same; Same; Same; Same; Tranquil Period; The final
phase of the cycle of violence begins when the acute battering incident ends
—during this tranquil period, the couple experience profound relief.—The
final phase of the cycle of violence begins when the acute battering incident
ends. During this tranquil period, the couple experience profound relief. On
the one hand, the batterer may show a tender and nurturing behavior
towards his partner. He knows that he has been viciously cruel and tries to
make up for it, begging for her forgiveness and promising never to beat her
again. On the other hand, the battered woman also tries to convince herself
that the battery will never happen again; that her partner will change for the
better; and that this “good, gentle and caring man” is the real person whom
she loves. A battered woman usually believes that she is the sole anchor of
the emotional stability of the batterer. Sensing his isolation and despair, she
feels responsible for his well-being. The truth, though, is that the chances of
his reforming, or seeking or receiving professional help, are very slim,
especially if she remains with him. Generally, only after she leaves him does
he seek professional help as a way of getting her back. Yet, it is in this phase

of remorseful reconciliation that she is most thoroughly tormented
psychologically. The illusion of absolute inter dependency is well-entrenched
in a battered woman’s psyche. In this phase, she and her batterer are indeed
emotionally dependent on each other—she for his nurturant behavior, he for
her forgiveness. Underneath this miserable cycle of ‘‘tension, violence and
forgiveness,” each partner may believe that it is better to die than to be
separated. Neither one may really feel independent, capable of functioning
without the other.
Same; Same; Same; Same; Elements; One who resorts to self-defense must
face a real threat on one’s life, not merely imaginary.—Settled in our
jurisprudence, however, is the rule that the one who resorts to self-defense
must face a real threat on one’s life; and the peril sought to be avoided must
be imminent and actual, not merely imaginary. Thus, the Revised Penal Code
provides the following requisites and effect of self-defense: “Art. 11.
Justifying circumstances.—The following do not incur any criminal liability:
“1. Anyone who acts in defense of his person or rights, provided that the
following circumstances concur; First. Unlawful aggression; Second.
Reasonable necessity of the means employed to prevent or repel it; Third.
Lack of sufficient provocation on the part of the person defending himself.”
Same; Same; Same; Same; Same; Unlawful aggression; Unlawful aggression
is the most essential element of self-defense.—Unlawful aggression is the
most essential element of self-defense. It presupposes actual, sudden and
unexpected attack—or an imminent danger thereof—on the life or safety of a
person.
Same; Same; Same; Same; Same; Same; Aggression, if not continuous, does
not warrant self-defense.—Aggression, if not continuous, does not warrant
self-defense. In the absence of such aggression, there can be no self-
defense—complete or incomplete—on the part of the victim.
Same; Same; Mitigating Circumstances; Passion and Obfuscation; Requisites;
To appreciate this circumstance, the following requisites should concur.—In
addition, we also find in favor of appellant the extenuating circumstance of
having acted upon an impulse so powerful as to have naturally produced
passion and obfuscation. It has been held that this state of mind is present
when a crime is committed as a result of an uncontrollable burst of passion
provoked by prior unjust or improper acts or by a legitimate stimulus so
powerful as to overcome reason. To appreciate this circumstance, the
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 106
following requisites should concur: (1) there is an act, both unlawful and
sufficient to produce such a condition of mind; and (2) this act is not far
removed from the commission of the crime by a considerable length of time,
during which the accused might recover her normal equanimity.
Same; Same; Qualifying Circumstances; Treachery; Because of the gravity of
the resulting offense, treachery must be proved as conclusively as the killing
itself.—There is treachery when one commits any of the crimes against
persons by employing means, methods or forms in the execution thereof
without risk to oneself arising from the defense that the offended party
might make. In order to qualify an act as treacherous, the circumstances
invoked must be proven as indubitably as the killing itself; they cannot be
deduced from mere inferences, or conjectures, which have no place in the
appreciation of evidence. Because of the gravity of the resulting offense,
treachery must be proved as conclusively as the killing itself.
YNARES-SANTIAGO, J., Dissenting Opinion:
Criminal law; Parricide; Justifying Circumstances; Self-defense; Battered
Woman Syndrome; Phases; The Battered Woman Syndrome has three (3)
phases.—As exhaustively discussed in the ponencia, the “Battered Woman
Syndrome” has three phases, to wit: (1) the tension-building phase, where
minor batterings in the form of verbal or slight physical abuse occurs. Here,
the woman tries to pacify the batterer through a show of kind, nurturing
behavior; or by simply staying out of his way; (2) the acute battering
incident phase which is characterized by brutality, destructiveness and
sometimes, death. The battered woman usually realizes that she cannot
reason with him and that resistance would only exacerbate her condition;
and (3) the tranquil period, where the couple experience a compound relief
and the batterer may show a tender and nurturing behavior towards his
partner.
Same; Same; Same; Same; Same; Once BWS and an impending danger
based on the conduct of the deceased in previous battering episodes are
established, actual occurrence of an assault is no longer a condition sine qua
non before self-defense may be upheld.—Traditionally, in order that self-
defense may be appreciated, the unlawful aggression or the attack must be
imminent and actually in existence. This interpretation must, however, be re-
evaluated vis-à-visthe recognized inherent characteristic of the psyche of a
person afflicted with the “Battered Woman Syndrome.” As previously

discussed, women afflicted by this syndrome live in constant fear for their life
and thus respond in self-defense. Once BWS and an impending danger based
on the conduct of the deceased in previous battering episodes are
established, actual occurrence of an assault is no longer a condition sine qua
non before self defense may be upheld. Threatening behavior or
communication can satisfy the required imminence of danger. As stated in
the ponencia, to require the battered person to await an obvious deadly
attack before she can defend her life would amount to sentencing her to
murder by installment.
AUTOMATIC REVIEW of a decision of the Regional Trial Court of Ormoc,
Leyte, Br. 35.
The facts are stated in the opinion of the Court.
     The Solicitor General for appellee.
     Katrina Legarda and Dulce T. Asensi for 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
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 107
she was eight months pregnant with their child, overwhelmed her and put
her in the aforesaid emotional and mental state, which overcame her reason
and impelled her to vindicate her life and her unborn childs.
Considering the presence of these two mitigating circumstances arising from
BWS, as well as the benefits of the Indeterminate Sentence Law, she may
now apply for and be released from custody on parole, because she has
already served the minimum period of her penalty while under detention
during the pendency of this case.
The Case
For automatic review before this Court is the September 25, 1998
Decision[1] of the Regional Trial Court (RTC) of Ormoc City (Branch 35) in
Criminal Case No. 5016-0, finding Marivic Genosa guilty beyond reasonable
doubt of parricide. The decretal portion of the Decision reads:
WHEREFORE, after all the foregoing being duly considered, the Court finds
the accused, Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of
the crime of Parricide as provided under Article 246 of the Revised Penal
Code as restored by Sec. 5, RA No. 7659, and after finding treachery as a
generic aggravating circumstance and none of mitigating circumstance,
hereby sentences the accused with the penalty of DEATH.
The Court likewise penalizes the accused to pay the heirs of the deceased
the sum of fifty thousand pesos (P50,000.00), Philippine currency as
indemnity and another sum of fifty thousand pesos (P50,000.00), Philippine
currency as moral damages.[2]
The Information[3] charged appellant with parricide as follows:
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,[5] appellant pleaded not guilty during her
arraignment on March 3, 1997.[6] In due course, she was tried for and
convicted of parricide.
The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG) summarizes the prosecutions
version of the facts in this wise:
Appellant and Ben Genosa were united in marriage on November 19, 1983 in
Ormoc City. Thereafter, they lived with the parents of Ben in their house at
Isabel, Leyte. For a time, Bens younger brother, Alex, and his wife lived with
them too. Sometime in 1995, however, appellant and Ben rented from
Steban Matiga a house at Barangay Bilwang, Isabel, Leyte where they lived
with their two children, namely: John Marben and Earl Pierre.
On November 15, 1995, Ben and Arturo Basobas went to a cockfight after
receiving their salary. They each had two (2) bottles of beer before heading
home. Arturo would pass Bens house before reaching his. When they arrived
at the house of Ben, he found out that appellant had gone to Isabel, Leyte to
look for him. Ben went inside his house, while Arturo went to a store across
it, waiting until 9:00 in the evening for the masiao runner to place a bet.
Arturo did not see appellant arrive but on his way home passing the side of
the Genosas rented house, he heard her say I wont hesitate to kill you to
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 108
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 sons 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 Bens 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
Arao, appellant went to look for Ben at the marketplace and taverns at
Isabel, Leyte but did not find him there. They found Ben drunk upon their
return at the Genosas house. Ecel went home despite appellants request for
her to sleep in their house.
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
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 109
the pipe as he was about to pick up the blade and his wallet. She thereafter
ran inside the bedroom.
Appellant, however, insisted that she ended the life of her husband by
shooting him. She supposedly distorted the drawer where the gun was and
shot Ben. He did not die on the spot, though, but in the bedroom.
[7]
 (Citations omitted)
Version of the Defense
Appellant relates her version of the facts in this manner:
1. Marivic and Ben Genosa were allegedly married on November 19, 1983.
Prior to her marriage, Marivic had graduated from San Carlos, Cebu City,
obtaining a degree of Bachelor of Science in Business Administration, and
was working, at the time of her husbands death, as a Secretary to the Port
Managers in Ormoc City. The couple had three (3) children: John Marben,
Earl Pierre and Marie Bianca.
2. Marivic and Ben had known each other since elementary school; they
were neighbors in Bilwang; they were classmates; and they were third
degree cousins. Both sets of parents were against their relationship, but Ben
was persistent and tried to stop other suitors from courting her. Their
closeness developed as he was her constant partner at fiestas.
3. After their marriage, they lived first in the home of Bens parents, together
with Bens brother, Alex, in Isabel, Leyte. In the first year of marriage,
Marivic and Ben lived happily. But apparently, soon thereafter, the couple
would quarrel often and their fights would become violent.
4. Bens brother, Alex, testified for the prosecution that he could not
remember when Ben and Marivic married. He said that when Ben and Marivic
quarreled, generally when Ben would come home drunk, Marivic would inflict
injuries on him. He said that in one incident in 1993 he saw Marivic holding a
kitchen knife after Ben had shouted for help as his left hand was covered
with blood. Marivic left the house but after a week, she returned apparently
having asked for Bens forgiveness. In another incident in May 22, 1994,
early morning, Alex and his father apparently rushed to Bens aid again and
saw blood from Bens forehead and Marivic holding an empty bottle. Ben and
Marivic reconciled after Marivic had apparently again asked for Bens
forgiveness.

Mrs. Iluminada Genosa, Marivics mother-in-law, testified too, saying that Ben
and Marivic married in 1986 or 1985 more or less here in Fatima, Ormoc
City. She said as the marriage went along, Marivic became already very
demanding. Mrs. Iluminada Genosa said that after the birth of Marivics two
sons, there were three (3) misunderstandings. The first was when Marivic
stabbed Ben with a table knife through his left arm; the second incident was
on November 15, 1994, when Marivic struck Ben on the forehead using a
sharp instrument until the eye was also affected. It was wounded and also
the ear and her husband went to Ben to help; and the third incident was in
1995 when the couple had already transferred to the house in Bilwang and
she saw that Bens hand was plastered as the bone cracked.
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.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 110
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 lets go and look for a whore. Mr. Sarabia
further testified that Ben would box his wife and I would see bruises and one
time she ran to me, I noticed a wound (the witness pointed to his right
breast) as according to her a knife was stricken to her. Mr. Sarabia also said
that once he saw Ben had been injured too. He said he voluntarily testified
only that morning.
7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic,
testified that in the afternoon of November 15, 1995, Marivic went to her
house and asked her help to look for Ben. They searched in the market
place, several taverns and some other places, but could not find him. She
accompanied Marivic home. Marivic wanted her to sleep with her in the
Genosa house because she might be battered by her husband. When they
got to the Genosa house at about 7:00 in the evening, Miss Arano said that
her husband was already there and was drunk. Miss Arano knew he was
drunk because of his staggering walking and I can also detect his face.
Marivic entered the house and she heard them quarrel noisily. (Again, please
note that this is the same night as that testified to by Arturo Basobas) Miss
Arano testified that this was not the first time Marivic had asked her to sleep
in the house as Marivic would be afraid every time her husband would come
home drunk. At one time when she did sleep over, she was awakened at
10:00 in the evening when Ben arrived because the couple were very noisy
in the sala and I had heard something was broken like a vase. She said
Marivic ran into her room and they locked the door. When Ben couldnt get in
he got a chair and a knife and showed us the knife through the window grill
and he scared us. She said that Marivic shouted for help, but no one came.
On cross-examination, she said that when she left Marivics house on
November 15, 1995, the couple were still quarreling.
7.5. Dr. Dino Caing, a physician testified that he and Marivic were 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.
xxxxxxxxx
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 111
Dr. Caings clinical history of the tension headache and hypertention of
Marivic on twenty-three (23) separate occasions was marked at Exhibits 2
and 2-B. The OPD Chart of Marivic at the Philphos Clinic which reflected all
the consultations made by Marivic and the six (6) incidents of physical
injuries reported was marked as Exhibit 3.
On cross-examination, Dr. Caing said that he is not a psychiatrist, he could
not say whether the injuries were directly related to the crime committed. He
said it is only a psychiatrist who is qualified to examine the psychological
make-up of the patient, whether she is capable of committing a crime or not.
7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas
resided, testified that about two (2) months before Ben died, Marivic went to
his office past 8:00 in the evening. She sought his help to settle or confront
the Genosa couple who were experiencing family troubles. He told Marivic to
return in the morning, but he did not hear from her again and assumed that
they might have settled with each other or they might have forgiven with
each other.
xxxxxxxxx
Marivic said she did not provoke her husband when she got home that night
it was her husband who began the provocation. Marivic said she was
frightened that her husband would hurt her and she wanted to make sure
she would deliver her baby safely. In fact, Marivic had to be admitted later at
the Rizal Medical Centre as she was suffering from eclampsia and
hypertension, and the baby was born prematurely on December 1, 1995.
Marivic testified that during her marriage she had tried to leave her husband
at least five (5) times, but that Ben would always follow her and they would
reconcile. Marivic said that the reason why Ben was violent and abusive
towards her that night was because he was crazy about his recent girlfriend,
Lulu x x x Rubillos.
On cross-examination, Marivic insisted she shot Ben with a gun; she said that
he died in the bedroom; that their quarrels could be heard by anyone
passing their house; that Basobas lied in his testimony; that she left for
Manila the next day, November 16, 1995; that she did not bother anyone in
Manila, rented herself a room, and got herself a job as a field researcher
under the alias Marvelous Isidro; she did not tell anyone that she was

leaving Leyte, she just wanted to have a safe delivery of her baby; and that
she was arrested in San Pablo, Laguna.
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.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 112
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, Marivics trial lawyer, Atty. Gil Marvel P.
Tabucanon, filed a Motion to Withdraw as counsel, attaching thereto, as a
precautionary measure, two (2) drafts of Appellants Briefs he had prepared
for Marivic which, for reasons of her own, were not conformed to by her.
The Honorable Court allowed the withdrawal of Atty. Tabucanon and
permitted the entry of appearance of undersigned counsel.
15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated
20 January 2000, to the Chief Justice, coursing the same through Atty.
Teresita G. Dimaisip, Deputy Clerk of Court of Chief Judicial Records Office,
wherein she submitted her Brief without counsels to the Court.
This letter was stamp-received by the Honorable Court on 4 February 2000.
16. In the meantime, under date of 17 February 2000, and 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 Marivics URGENT OMNIBUS MOTION and remanded the case to the
trial court for the reception of expert psychological and/or psychiatric opinion
on the battered woman syndrome plea, within ninety (90) days from notice,

and, thereafter to forthwith report to this Court the proceedings taken,
together with the copies of the TSN and relevant documentary evidence, if
any, submitted.
18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified
before the Hon. Fortunito L. Madrona, RTC-Branch 35, Ormoc City.
Immediately before Dra. Dayan was sworn, the Court a quo asked if she had
interviewed Marivic Genosa. Dra. Dayan informed the Court that interviews
were done at the Penal Institution in 1999, but that the clinical interviews
and psychological assessment were done at her clinic.
Dra. Dayan testified that she has been a clinical psychologist for twenty (20)
years with her own private clinic and connected presently to the De La Salle
University as a professor. Before this, she was the Head of the Psychology
Department of the Assumption College; a member of the faculty of
Psychology at the Ateneo de Manila University and St. Josephs College; and
was the counseling psychologist of the National Defense College. She has an
AB in Psychology from the University of the Philippines, a Master of Arts in
Clinical [Counseling], Psychology from the Ateneo, and a PhD from the U.P.
She was the past president of the Psychological Association of the Philippines
and is a member of the American Psychological Association. She is the
secretary of the International Council of Psychologists from about 68
countries; a member of the Forensic Psychology Association; and a member
of the ASEAN [Counseling] Association. She is actively involved with the
Philippine Judicial Academy, recently lecturing on the socio-demographic and
psychological profile of families involved in domestic violence and nullity
cases. She was with the Davide Commission doing research about Military
Psychology. She has written a book entitled Energy Global Psychology
(together with Drs. Allan Tan and Allan Bernardo). The Genosa case is the
first time she has testified as an expert on battered women as this is the first
case of that nature.
Dra. Dayan testified that for the research she conducted, on the 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.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 113
Dra. Dayan described domestic violence to comprise of a lot of incidents of
psychological abuse, verbal abuse, and emotional abuse to physical abuse
and also sexual abuse.
xxxxxxxxx
Dra. Dayan testified that in her studies, the battered woman usually has a
very low opinion of herself. She has a self-defeating and 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.
xxxxxxxxx
Dra. Dayan said that abused wives react differently to the violence: some
leave the house, or lock themselves in another room, or sometimes try to
fight back triggering physical violence on both of them. She said that in a
normal marital relationship, abuses also happen, but these are not
consistent, not chronic, are not happening day in [and] day out. In an
abnormal marital relationship, the abuse occurs day in and day out, is long
lasting and even would cause hospitalization on the victim and even death
on the victim.

xxxxxxxxx
Dra. Dayan said that as a result of the battery of psychological tests she
administered, it was her opinion that Marivic fits the profile of a battered
woman because inspite of her feeling of self-confidence which we can see at
times there are really feeling (sic) of loss, such feelings of humiliation which
she sees herself as damaged and as a broken person. And at the same time
she still has the imprint of all the abuses that she had experienced in the
past.
xxxxxxxxx
Dra. Dayan said Marivic thought of herself as a loving wife and did not even
consider filing for nullity or legal separation inspite of the abuses. It was at
the time of the tragedy that Marivic then thought of herself as a victim.
xxxxxxxxx
19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since
passed away, appeared and testified before RTC-Branch 35, Ormoc City.
Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow
of the Philippine Board of Psychiatry and a Fellow of the Philippine Psychiatry
Association. He was in the practice of psychiatry for thirty-eight (38) years.
Prior to being in private practice, he was connected with the Veterans
Memorial Medical Centre where he gained his training on psychiatry and
neurology. After that, he was called to active duty in the Armed Forces of the
Philippines, assigned to the V. Luna Medical Center for twenty six (26) years.
Prior to his retirement from government service, he obtained the rank of
Brigadier General. He obtained his medical degree from the University of
Santo Tomas. He was also a member of the World Association of Military
Surgeons; the Quezon City Medical Society; the Cagayan Medical Society;
and the Philippine Association of Military Surgeons.
He authored The Comparative Analysis of Nervous Breakdown in the
Philippine Military Academy from the Period 1954 1978 which was presented
twice in international congresses. He also authored The Mental Health of the
Armed Forces of the Philippines 2000, which was likewise published
internationally and locally. He had a medical textbook published on the use
of Prasepam on a Parke-Davis grant; was the first to use Enanthate
(siquiline), on an E.R. Squibb grant; and he published the use of the drug
Zopiclom in 1985-86.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 114
Dr. Pajarillo explained that psychiatry deals with the functional disorder of
the mind and neurology deals with the ailment of the brain and spinal cord
enlarged. Psychology, on the other hand, is a bachelor degree and a
doctorate degree; while one has to finish medicine to become a specialist in
psychiatry.
Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo
had already encountered a suit involving violent family relations, and testified
in a case in 1964. In the Armed Forces of the Philippines, violent family
disputes abound, and he has seen probably ten to twenty thousand cases. In
those days, the primordial intention of therapy was reconciliation. As a result
of his experience with domestic violence cases, he became a consultant of
the Battered Woman Office in Quezon City under Atty. Nenita Deproza.
As such consultant, he had seen around forty (40) cases of severe domestic
violence, where there is physical abuse: such as slapping, pushing, verbal
abuse, battering and boxing a woman even to an unconscious state such
that the woman is sometimes confined. The affliction of Post-Traumatic
Stress Disorder depends on the vulnerability of the victim. Dr. Pajarillo said
that if the victim is not very healthy, perhaps one episode of violence may
induce the disorder; if the psychological stamina and physiologic
constitutional stamina of the victim is stronger, it will take more repetitive
trauma to precipitate the post-traumatic stress disorder and this x x x is very
dangerous.
In psychiatry, the post-traumatic stress disorder is incorporated under the
anxiety neurosis or neurologic anxcietism. It is produced by overwhelming
brutality, trauma.
xxxxxxxxx
Dr. Pajarillo explained that with neurotic anxiety, the victim relives the
beating or trauma as if it were real, although she is not actually being beaten
at that time. She thinks of nothing but the suffering.
xxxxxxxxx
A woman who suffers battery has a tendency to become neurotic, her
emotional tone is unstable, and she is irritable and restless. She tends to
become hard-headed and persistent. She has higher sensitivity and her self-
world is damaged.

Dr. Pajarillo said that an abnormal family background relates to an
individuals illness, such as the deprivation of the continuous care and love of
the parents. As to the batterer, he normally internalizes what is around him
within the environment. And it becomes his own personality. He is very
competitive; he is aiming high all the time; he is so macho; he shows his
strong faade but in it there are doubts in himself and prone to act without
thinking.
xxxxxxxxx
Dr. Pajarillo emphasized that even though without the presence of the
precipator (sic) or the one who administered the battering, that 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.
xxxxxxxxx
Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to
defend themselves, and primarily with knives. Usually pointed weapons or
any weapon that is available in the immediate surrounding or in a hospital x
x x because that abound in the household. He said a victim resorts to
weapons when she has reached the lowest rock bottom of her life and there
is no other recourse left on her but to act decisively.
xxxxxxxxx
Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview
he conducted for two (2) hours and seventeen (17) minutes. He used the
psychological evaluation and social case studies as a help in forming his
diagnosis. He came out with a Psychiatric Report, dated 22 January 2001.
xxxxxxxxx
On cross-examination by the private prosecutor, Dr. Pajarillo said that at the
time she killed her husband Marivicc mental condition was that she was re-
experiencing the trauma. He said that we are trying to explain scientifically
that the re-experiencing of the trauma is not controlled by Marivic. It will just
come in flashes and probably at that point in time that things happened
when the re-experiencing of the trauma flashed in her mind. At the time he
interviewed Marivic she was more subdued, she was not super alert anymore
x x x she is mentally stress (sic) because of the predicament she is involved.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 115
xxxxxxxxx
20. No rebuttal evidence or testimony was presented by either the private or
the public prosecutor. Thus, in accord with the Resolution of this Honorable
Court, the records of the partially re-opened trial 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
appellants Motion, remanding the case to the trial court for the reception of
expert psychological and/or psychiatric opinion on the battered woman
syndrome plea; and requiring the lower court to report thereafter to this
Court the proceedings taken as well as to submit copies of the TSN and
additional evidence, if any.
Acting on the Courts Resolution, the trial judge authorized the examination
of Marivic by two clinical psychologists, Drs. Natividad Dayan [10] and Alfredo
Pajarillo,[11] supposedly experts on domestic violence. Their testimonies,
along with their documentary evidence, were then presented to and
admitted by the lower court before finally being submitted to this Court to
form part of the records of the case.[12]

The Issues
Appellant assigns the following alleged errors of the trial court for this Courts
consideration:
1. The trial court gravely erred in promulgating an obviously hasty decision
without reflecting on the evidence adduced as to self-defense.
2. The trial court gravely erred in finding as a fact that Ben and Marivic
Genosa were legally married and that she was therefore liable for parricide.
3. The trial court gravely erred finding the cause of death to be by beating
with a pipe.
4. The trial court gravely erred in ignoring and disregarding evidence
adduced from impartial and unbiased witnesses that Ben Genosa was a
drunk, a gambler, a womanizer and wife-beater; and further gravely erred in
concluding that Ben Genosa was a battered husband.
5. The trial court gravely erred in not requiring testimony from the children
of Marivic Genosa.
6. The trial court gravely erred in concluding that Marivics flight to Manila
and her subsequent apologies were indicia of guilt, instead of a clear attempt
to save the life of her unborn child.
7. The trial court gravely erred in concluding that there was an aggravating
circumstance of treachery.
8. The trial court gravely erred in refusing to re-evaluate the traditional
elements in determining the existence of self-defense and defense of foetus
in this case, thereby erroneously convicting Marivic Genosa of the crime of
parricide and condemning her to the ultimate penalty of death. [13]
In the main, the following are the essential legal issues: (1) whether
appellant acted in self-defense and in defense of her fetus; and (2) whether
treachery attended the killing of Ben Genosa.
The Courts Ruling
The appeal is partly meritorious.
Collateral Factual Issues
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 116
The first six assigned errors raised by appellant are factual in nature, if not
collateral to the resolution of the principal issues. As consistently held by this
Court, the findings of the trial court on the credibility of witnesses and their
testimonies are entitled to a high degree of respect and will not be disturbed
on appeal in the absence of any showing that the trial judge gravely abused
his discretion or overlooked, misunderstood or misapplied material facts or
circumstances of weight and substance that could affect the outcome of the
case.[14]
In appellants first six assigned items, we find no grave abuse of discretion,
reversible error or misappreciation of material facts that would reverse or
modify the trial courts disposition of the case. In any event, we will now
briefly dispose of these alleged errors of the trial court.
First, we do not agree that the lower court promulgated an obviously hasty
decision without reflecting on the evidence adduced as to self-defense. We
note that in his 17-page Decision, Judge Fortunito L. Madrona summarized
the testimonies of both the prosecution and the defense witnesses and -- on
the basis of those and of the documentary evidence on record -- made his
evaluation, findings and conclusions. He wrote a 3-page discourse assessing
the testimony and the self-defense theory of the accused. While she, or even
this Court, may not agree with the trial judges conclusions, we cannot
peremptorily conclude, absent substantial evidence, that he failed to
reflect on the evidence presented.
Neither do we find the appealed Decision to have been made in an obviously
hasty manner. The Information had been filed with the lower court on
November 14, 1996. Thereafter, trial began and at least 13 hearings were
held for over a year. It took the trial judge about two months from the
conclusion of trial to promulgate his judgment. That he conducted the trial
and resolved the case with dispatch should not be taken against him, much
less used to condemn him for being unduly hasty. If at all, the dispatch with
which he handled the case should be lauded. In any case, we find his actions
in substantial compliance with his constitutional obligation. [15]
Second, the lower court did not err in finding as a fact that Ben Genosa and
appellant had been legally married, despite the non-presentation of their
marriage contract. In People v. Malabago,[16] this Court held:
The key element in parricide is the relationship of the offender with the
victim. In the case of parricide of a spouse, the best proof of the relationship

between the accused and the deceased is the marriage certificate. In the
absence of a marriage certificate, however, oral evidence of the fact of
marriage may be considered by the trial court if such proof is not objected
to.
Two of the prosecution witnesses -- namely, the mother and the brother of
appellants deceased spouse -- attested in court that Ben had been married
to Marivic.[17] The defense raised no objection to these testimonies.
Moreover, during her direct examination, appellant herself made a judicial
admission of her marriage to Ben.[18] Axiomatic is the rule that a judicial
admission is conclusive upon the party making it, except only when there is a
showing that (1) the admission was made through a palpable mistake, or (2)
no admission was in fact made.[19] Other than merely attacking the non-
presentation of the marriage contract, the defense offered no proof that the
admission made by appellant in court as to the fact of her marriage to the
deceased was made through a palpable mistake.
Third, under the circumstances of this case, the specific or direct cause of
Bens death -- whether by a gunshot or by beating with a pipe -- has no legal
consequence. As the Court elucidated in its September 29, 2000 Resolution,
[c]onsidering that the appellant has admitted the fact of killing her husband
and the acts of hitting his nape with a metal pipe and of shooting him at the
back of his head, the Court believes that exhumation is unnecessary, if not
immaterial, to determine which of said acts actually caused the victims
death. Determining which of these admitted acts caused the death is not
dispositive of the guilt or defense of appellant.
Fourth, we cannot fault the trial court for not fully appreciating evidence that
Ben was a drunk, gambler, womanizer and wife-beater. Until this case came to
us for automatic review, appellant had not raised the novel defense of battered
woman syndrome, for which such evidence may have been relevant. Her theory
of self-defense was then the crucial issue before the trial court. As will be
discussed shortly, the legal requisites of self-defense under prevailing
jurisprudence ostensibly appear inconsistent with the surrounding facts that led
to the death of the victim. Hence, his personal character, especially his past
behavior, did not constitute vital evidence at the time.
Fifth, the trial court surely committed no error in not requiring testimony
from appellants children. As correctly elucidated by the solicitor general, all
criminal actions are prosecuted under the direction and control of the public
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 117
prosecutor, in whom lies the discretion to determine which witnesses and
evidence are necessary to present.[20] As the former further points out,
neither the trial court nor the prosecution prevented appellant from
presenting her children as witnesses. Thus, she cannot now fault the lower
court for not requiring them to testify.
Finally, merely collateral or corroborative is the matter of whether the flight
of Marivic to Manila and her subsequent apologies to her brother-in-law are
indicia of her guilt or are attempts to save the life of her unborn child. Any
reversible error as to the trial courts appreciation of these circumstances has
little bearing on the final resolution of the case.
First Legal Issue:
Self-Defense and Defense of a Fetus
Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes
self-defense and/or defense of her unborn child. When the accused admits
killing the victim, it is incumbent upon her to prove any claimed justifying
circumstance by clear and convincing evidence.[21] Well-settled is the rule
that in criminal cases, self-defense (and similarly, defense of a stranger or
third person) shifts the burden of proof from the prosecution to the defense.
[22]
The Battered Woman Syndrome
In claiming self-defense, appellant raises the novel theory of the battered
woman syndrome. While new in Philippine jurisprudence, the concept has
been recognized in foreign jurisdictions as a form of self-defense or, at the
least, incomplete self-defense.[23] By appreciating evidence that a victim or
defendant is afflicted with the syndrome, foreign courts convey their
understanding of the justifiably fearful state of mind of a person who has
been cyclically abused and controlled over a period of time.[24]
A battered woman has been defined as a woman who is repeatedly
subjected to any forceful physical or psychological behavior by a man in
order to coerce her to do something he wants her to do without concern for
her rights. Battered women include wives or women in any form of intimate
relationship with men. Furthermore, in order to be classified as a battered
woman, the couple must go through the battering cycle at least twice. Any
woman may find herself in an abusive relationship with a man once. If it

occurs a second time, and she remains in the situation, she is defined as a
battered woman.[25]
Battered women exhibit common personality traits, such as low self-esteem,
traditional beliefs about the home, the family and the female sex role;
emotional dependence upon the dominant male; the tendency to accept
responsibility for the batterers actions; and false hopes that the relationship
will improve.[26]
More graphically, the battered woman syndrome is characterized by the so-
called cycle of violence,[27] which has three phases: (1) the tension-building
phase; (2) the acute battering incident; and (3) the tranquil, loving (or, at
least, nonviolent) phase.[28]
During the tension-building phase, minor battering occurs -- it could be
verbal or slight physical abuse or another form of hostile behavior. The
woman usually tries to pacify the batterer through a show of kind, nurturing
behavior; or by simply staying out of his way. What actually happens is that
she allows herself to be abused in ways that, to her, are comparatively
minor. All she wants is to prevent the escalation of the violence exhibited by
the batterer. This wish, however, proves to be double-edged, because her
placatory and passive behavior legitimizes his belief that he has the right to
abuse her in the first place.
However, the techniques adopted by the woman in her effort to placate him
are not usually successful, and the verbal and/or physical abuse worsens.
Each partner senses the imminent loss of control and the growing tension
and despair. Exhausted from the persistent stress, the battered woman soon
withdraws emotionally. But the more she becomes emotionally unavailable,
the more the batterer becomes angry, oppressive and abusive. Often, at
some unpredictable point, the violence spirals out of control and leads to an
acute battering incident.[29]
The acute battering incident is said to be characterized by brutality,
destructiveness and, sometimes, death. The battered woman deems this
incident as unpredictable, yet also inevitable. During this phase, she has no
control; only the batterer may put an end to the violence. Its nature can be
as unpredictable as the time of its explosion, and so are his reasons for
ending it. The battered woman usually realizes that she cannot reason with
him, and that resistance would only exacerbate her condition.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 118
At this stage, she has a sense of detachment from the attack and the terrible
pain, although she may later clearly remember every detail. Her apparent
passivity in the face of acute violence may be rationalized thus: the batterer
is almost always much stronger physically, and she knows from her past
painful experience that it is futile to fight back. Acute battering incidents are
often very savage and out of control, such that innocent bystanders or
intervenors are likely to get hurt.[30]
The final phase of the cycle of violence begins when the acute battering
incident ends. During this tranquil period, the couple experience profound
relief. On the one hand, the batterer may show a tender and nurturing
behavior towards his partner. He knows that he has been viciously cruel and
tries to make up for it, begging for her forgiveness and promising never to
beat her again. On the other hand, the battered woman also tries to
convince herself that the battery will never happen again; that her partner
will change for the better; and that this good, gentle and caring man is the
real person whom she loves.
A battered woman usually believes that she is the sole anchor of the
emotional stability of the batterer. Sensing his isolation and despair, she
feels responsible for his well-being. The truth, though, is that the chances of
his reforming, or seeking or receiving professional help, are very slim,
especially if she remains with him. Generally, only after she leaves him does
he seek professional help as a way of getting her back. Yet, it is in this phase
of remorseful reconciliation that she is most thoroughly tormented
psychologically.
The illusion of absolute interdependency is well-entrenched in a battered
womans psyche. In this phase, she and her batterer are indeed emotionally
dependent on each other -- she for his nurturant behavior, he for her
forgiveness. Underneath this miserable cycle of tension, violence and
forgiveness, each partner may believe that it is better to die than to be
separated. Neither one may really feel independent, capable of functioning
without the other.[31]
History of Abusein 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:
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 119

ATTY. TABUCANON Q Who inflicted these injuries?

Q How did you describe your marriage with Ben Genosa? A Of course my husband.

A In the first year, I lived with him happily but in the subsequent year he Q You mean Ben Genosa?
was cruel to me and a behavior of habitual drinker.
A Yes, sir.
Q You said that in the subsequent year of your marriage, your husband was
xxxxxxxxx
abusive to you and cruel. In what way was this abusive and cruelty
manifested to you? [Court] /to the witness
A He always provoke me in everything, he always slap me and sometimes he Q How frequent was the alleged cruelty that you said?
pinned me down on the bed and sometimes beat me.
A Everytime he got drunk.
Q How many times did this happen?
Q No, from the time that you said the cruelty or the infliction of injury
A Several times already. inflicted on your occurred, after your marriage, from that time on, how
frequent was the occurrence?
Q What did you do when these things happen to you?
A Everytime he got drunk.
A I went away to my mother and I ran to my father and we separate each
other. Q Is it daily, weekly, monthly or how many times in a month or in a week?
Q What was the action of Ben Genosa towards you leaving home? A Three times a week.
A He is following me, after that he sought after me. Q Do you mean three times a week he would beat you?
Q What will happen when he follow you? A Not necessarily that he would beat me but sometimes he will just quarrel
me. [32]
A He said he changed, he asked for forgiveness and I was convinced and
after that I go to him and he said sorry. Referring to his Out-Patient Chart[33] on Marivic Genosa at the Philphos
Hospital, Dr. Dino D. Caing bolstered her foregoing testimony on chronic
Q During those times that you were the recipient of such cruelty and abusive
battery in this manner:
behavior by your husband, were you able to see a doctor?
Q So, do you have a summary of those six (6) incidents which are found in
A Yes, sir.
the chart of your clinic?
Q Who are these doctors?
A Yes, sir.
A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.
Q Who prepared the list of six (6) incidents, Doctor?
xxxxxxxxx
A I did.
Q You said that you saw a doctor in relation to your injuries?
Q Will you please read the physical findings together with the dates for the
A Yes, sir. record.
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 120

A 1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower Q Were you able to talk with the patient?
eyelid and redness of eye. Attending physician: Dr. Lucero;
A Yes, sir.
2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area, pain and
Q What did she tell you?
contusion (R) breast. Attending physician: Dr. Canora;
A As a doctor-patient relationship, we need to know the cause of these
3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;
injuries. And she told me that it was done to her by her husband.
4. August 1, 1994 - Pain, mastitis (L) breast, 2 to trauma. Attending
Q You mean, Ben Genosa?
physician: Dr. Caing;
A Yes, sir.
5. April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending physician:
Dr. Canora; and xxxxxxxxx
6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion Pregnancy. ATTY. TABUCANON:
Attending physician: Dr. Canora.
Q By the way Doctor, were you able to physical examine the accused
Q Among the findings, there were two (2) incidents wherein you were the sometime in the month of November, 1995 when this incident happened?
attending physician, is that correct?
A As per record, yes.
A Yes, sir.
Q What was the date?
Q Did you actually physical examine the accused?
A It was on November 6, 1995.
A Yes, sir.
Q So, did you actually see the accused physically?
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 Yes, sir.

A Abrasion is a skin wound usually when it comes in contact with something Q On November 6, 1995, will you please tell this Honorable Court, was the
rough substance if force is applied. patient pregnant?

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

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?
xxxxxxxxx
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.
xxxxxxxxx
Q Lets go back to the clinical history of Marivic Genosa. You said that you
were able to examine her personally on November 6, 1995 and she was 8
months pregnant.
What is this all about?
A Because she has this problem of tension headache secondary to
hypertension and I think I have a record here, also the same period from
1989 to 1995, she had a consultation for twenty-three (23) times.
Q For what?
A Tension headache.
Q Can we say that specially during the latter consultation, that the patient
had hypertension?
A The patient definitely had hypertension. It was refractory to our treatment.
She does not response when the medication was given to her, because
tension headache is more or less stress related and emotional in nature.
Q What did you deduce of tension headache when you said is emotional in
nature?
A From what I deduced as part of our physical examination of the patient is
the family history in line of giving the root cause of what is causing this
disease. So, from the moment you ask to the patient all comes from the
domestic problem.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 121
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[36] that for a number of times she had been asked by
Marivic to sleep at the Genosa house, because the latter feared that Ben
would come home drunk and hurt her. On one occasion that Ecel did sleep
over, she was awakened about ten oclock at night, because the couple were
very noisy and I heard something was broken like a vase. Then Marivic came
running into Ecels room and locked the door. Ben showed up by the window
grill atop a chair, scaring them with a knife.
On the afternoon of November 15, 1995, Marivic again asked her help -- this
time to find Ben -- but they were unable to. They returned to the Genosa
home, where they found him already drunk. Again afraid that he might hurt
her, Marivic asked her to sleep at their house. Seeing his state of
drunkenness, Ecel hesitated; and when she heard the couple start arguing,
she decided to leave.
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 122

On that same night that culminated in the death of Ben Genosa, at least
three other witnesses saw or heard the couple quarreling.[37] Marivic relates
in detail the following backdrop of the fateful night when life was snuffed out
of him, showing in the process a vivid picture of his cruelty towards her:
ATTY. TABUCANON:
Q Please tell this Court, can you recall the incident in November 15, 1995 in
the evening?
A When I arrived home with my cousin Ecel whom I requested to sleep with
me at that time because I had fears that he was again drunk and I was
worried that he would again beat me so I requested my cousin to sleep with
me, but she resisted because she had fears that the same thing will happen
again last year.
Q Who was this cousin of yours who you requested to sleep with you?
A Ecel Arao, the one who testified.

A Whole morning and in the afternoon, I was in the office working then after Q Did Ecel sleep with you in your house on that evening?
office hours, I boarded the service bus and went to Bilwang. When I reached
A No, because she expressed fears, she said her father would not allow her
Bilwang, I immediately asked my son, where was his father, then my second
because of Ben.
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 Q During this period November 15, 1995, were you pregnant?
son arrived from school, I prepared dinner for my children.
A Yes, 8 months.
Q This is evening of November 15, 1995?
Q How advance was your pregnancy?
A Yes, sir.
A Eight (8) months.
Q What time did Ben Genosa arrive?
Q Was the baby subsequently born?
A When he arrived, I was not there, I was in Isabel looking for him.
A Yes, sir.
Q So when he arrived you were in Isabel looking for him?
Q Whats the name of the baby you were carrying at that time?
A Yes, sir.
A Marie Bianca.
Q Did you come back to your house?
Q What time were you able to meet personally your husband?
A Yes, sir.
A Yes, sir.
Q By the way, where was your conjugal residence situated this time?
Q What time?
A Bilwang.
A When I arrived home, he was there already in his usual behavior.
Q Is this your house or you are renting?
Q Will you tell this Court what was his disposition?
A Renting.
A He was drunk again, he was yelling in his usual unruly behavior.
Q What time were you able to come back in your residence at Bilwang?
Q What was he yelling all about?
A I went back around almost 8:00 oclock.
A His usual attitude when he got drunk.
Q What happened when you arrived in your residence?

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?
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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).
xxxxxxxxx
ATTY. TABUCANON:
Q Talking of drawer, is this drawer outside your room?
A Outside.
Q In what part of the house?
A Dining.
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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 Its a cutter.
Q How do you describe the blade, is it sharp both edges?
A Yes, because he once used it to me.
Q How did he do it?
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 latters ordeal to
the court a quo as follows:
Q: What can you say, that you found Marivic as a battered wife? Could you
in laymans term describe to this Court what her life was like as said to you?
A: What I remember happened then was it was more than ten years, that
she was suffering emotional anguish. There were a lot of instances of
abuses, to emotional abuse, to verbal abuse and to physical abuse. The
husband had a very meager income, she was the one who was practically
the bread earner of the family. The husband was involved in a lot of vices,
going out with barkadas, drinking, even womanizing being involved in
cockfight and going home very angry and which will trigger a lot of physical

abuse. She also had the experience a lot of taunting from the husband for
the reason that the husband even accused her of infidelity, the husband was
saying that the child she was carrying was not his own. So she was very
angry, she was at the same time very depressed because she was also
aware, almost like living in purgatory or even hell when it was happening day
in and day out. [39]
In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but
wittingly or unwittingly put forward, additional supporting evidence as shown
below:
Q In your first encounter with the appellant in this case in 1999, where you
talked to her about three hours, what was the most relevant information did
you gather?
A The most relevant information was the tragedy that happened. The most
important information were escalating abuses that she had experienced
during her marital life.
Q Before you met her in 1999 for three hours, we presume that you already
knew of the facts of the case or at least you have substantial knowledge of
the facts of the case?
A I believe I had an idea of the case, but I do not know whether I can
consider them as substantial.
xxxxxxxxx
Q Did you 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.
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Q Did she not inform you that there was an instance that she stayed in a
hotel in Ormoc where her husband followed her and battered [her] several
times in that room?
A She told me about that.
Q Did she inform you in what hotel in Ormoc?
A Sir, I could not remember but I was told that she was battered in that
room.
Q Several times in that room?
A Yes, sir. What I remember was that there is no problem about being
battered, it really happened.
Q Being an expert witness, our jurisprudence is not complete on saying this
matter. I think that is the first time that we have this in the Philippines, what
is your opinion?
A Sir, my opinion is, she is really a battered wife and in this kind happened,
it was really a self-defense. I also believe that there had been provocation
and I also believe that she became a disordered person. She had to suffer
anxiety reaction because of all the battering that happened and so she
became an abnormal person who had lost shes not during the time and that
is why it happened because of all the physical battering, emotional battering,
all the psychological abuses that she had experienced from her husband.
Q I do believe that she is a battered wife. Was she extremely battered?
A Sir, it is an extreme form of battering. Yes.[40]
Parenthetically, the credibility of appellant was demonstrated as follows:
Q And you also said that you administered [the] objective personality test,
what x x x [is this] all about?
A The objective personality test is the Millon Clinical Multiaxial Inventory. The
purpose of that test is to find out about the lying prone[ne]ss of the person.
Q What do you mean by that?
A Meaning, am I dealing with a client who is telling me the truth, or is she
someone who can exaggerate or x x x [will] tell a lie[?]

Q And what did you discover on the basis of this objective personality test?
A She was a person who passed the honesty test. Meaning she is a person
that I can trust. That the data that Im gathering from her are the truth. [41]
The other expert witness presented by the defense, Dr. Alfredo Pajarillo,
testified on his Psychiatric Report, [42] which was based on his interview and
examination of Marivic Genosa. The Report said that during the first three
years of her marriage to Ben, everything looked good -- the atmosphere was
fine, normal and happy -- until Ben started to be attracted to other girls and
was also enticed in[to] gambling[,] especially cockfighting. x x x. At the same
time Ben was often joining his barkada in drinking sprees.
The drinking sprees of Ben greatly changed the attitude he showed toward
his family, particularly to his wife. The Report continued: At first, it was
verbal and emotional abuses but as time passed, he became physically
abusive. Marivic claimed that the viciousness of her husband was progressive
every time he got drunk. It was a painful ordeal Marivic had to anticipate
whenever she suspected that her husband went for a drinking [spree]. They
had been married for twelve years[;] and practically more than eight years,
she was battered and maltreated relentlessly and mercilessly by her husband
whenever he was drunk.
Marivic sought the help of her mother-in-law, but her efforts were in vain.
Further quoting from the Report, [s]he also sought the advice and help of
close relatives and well-meaning friends in spite of her feeling ashamed of
what was happening to her. But incessant battering became more and more
frequent and more severe. x x x.[43]
From the totality of evidence presented, there is indeed no doubt in the
Courts mind that Appellant Marivic Genosa was a severely abused person.
Effect of Battery on Appellant
Because of the recurring cycles of violence experienced by the abused
woman, her state of mind metamorphoses. In determining her state of mind,
we cannot rely merely on the judgment of an ordinary, reasonable person
who is evaluating the events immediately surrounding the incident. A
Canadian court has aptly pointed out that expert evidence on the
psychological effect of battering on wives and common law partners are both
relevant and necessary. How can the mental state of the appellant be
appreciated without it? The average member of the public may ask: Why
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 126
would a woman put up with this kind of treatment? Why should she continue
to live with such a man? How could she love a partner who beat her to the
point of requiring hospitalization? We would expect the woman to pack her
bags and go. Where is her self-respect? Why does she not cut loose and
make a new life for herself? Such is the reaction of the average person
confronted with the so-called battered wife syndrome.[44]
To understand the syndrome properly, however, ones viewpoint should not
be drawn from that of an ordinary, reasonable person. What goes on in the
mind of a person who has been subjected to repeated, severe beatings may
not be consistent with -- nay, comprehensible to -- those who have not been
through a similar experience. Expert opinion is essential to clarify and refute
common myths and misconceptions about battered women.[45]
The theory of BWS formulated by Lenore Walker, as well as her research on
domestic violence, has had a significant impact in the United States and the
United Kingdom on the treatment and prosecution of cases, in which a
battered woman is charged with the killing of her violent partner. The
psychologist explains that the cyclical nature of the violence inflicted upon
the battered woman immobilizes the latters ability to act decisively in her
own interests, making her feel trapped in the relationship with no means of
escape.[46] In her years of research, Dr. Walker found that the abuse often
escalates at the point of separation and battered women are in greater
danger of dying then.[47]
Corroborating these research findings, Dra. Dayan said that the battered
woman usually has a very low opinion of herself. She has x x x self-defeating
and self-sacrificing characteristics. x x x [W]hen the violence would happen,
they usually think that they provoke[d] it, that they were the one[s] who
precipitated the violence[; that] they provoke[d] their spouse to be
physically, verbally and even sexually abusive to them.[48]
According to Dra. Dayan, there are a lot of reasons why a battered woman
does not readily leave an abusive partner -- poverty, self-blame and guilt
arising from the latters belief that she provoked the violence, that she has an
obligation to keep the family intact at all cost for the sake of their children,
and that she is the only hope for her spouse to change. [49]
The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had
previously testified in suits involving violent family relations, having
evaluated probably ten to twenty thousand violent family disputes within the

Armed Forces of the Philippines, wherein such cases abounded. As a result of
his experience with domestic violence cases, he became a consultant of the
Battered Woman Office in Quezon City. As such, he got involved in about
forty (40) cases of severe domestic violence, in which the physical abuse on
the woman would sometimes even lead to her loss of consciousness. [50]
Dr. Pajarillo explained that overwhelming brutality, trauma could result in
posttraumatic stress disorder, a form of anxiety neurosis or neurologic
anxietism.[51] After being repeatedly and severely abused, battered persons
may believe that they are essentially helpless, lacking power to change their
situation. x x x [A]cute battering incidents can have the effect of stimulating
the development of coping responses to the trauma at the expense of the
victims ability to muster an active response to try to escape further trauma.
Furthermore, x x x the victim ceases to believe that anything she can do will
have a predictable positive effect.[52]
A study[53] conducted by Martin Seligman, a psychologist at the University of
Pennsylvania, found that even if a person has control over a situation, but
believes that she does not, she will be more likely to respond to that
situation with coping responses rather than trying to escape. He said that it
was the cognitive aspect --  the individuals thoughts -- that proved all-
important. He referred to this phenomenon as learned helplessness. [T]he
truth or facts of a situation turn out to be less important than the individuals
set of beliefs or perceptions concerning the situation. Battered women dont
attempt to leave the battering situation, even when it may seem to outsiders
that escape is possible, because they cannot predict their own safety; they
believe that nothing they or anyone else does will alter their terrible
circumstances.[54]
Thus, just as the battered woman believes that she is somehow responsible
for the violent behavior of her partner, she also believes that he is capable of
killing her, and that there is no escape.[55] Battered women feel unsafe, suffer
from pervasive anxiety, and usually fail to leave the relationship. [56] Unless a
shelter is available, she stays with her husband, not only because she
typically lacks a means of 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
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 127
woman syndrome. We, however, failed to find sufficient evidence that would
support such a conclusion. More specifically, we failed to find ample evidence
that would confirm the presence of the essential characteristics of BWS.
The defense fell short of proving all three phases of the cycle of violence
supposedly characterizing the relationship of Ben and Marivic Genosa. No
doubt there were acute battering incidents. In relating to the court a
quo how the fatal incident that led to the death of Ben started, Marivic
perfectly described the tension-building phase of the cycle. She was able to
explain in adequate detail the typical characteristics of this stage. However,
that single incident does not prove the existence of the syndrome. In other
words, she failed to prove that in at least another battering episode in the
past, she had gone through a similar pattern.
How did the tension between the partners usually arise or build up prior to
acute battering? How did Marivic normally respond to Bens relatively minor
abuses? What means did she employ to try to prevent the situation from
developing into the next (more violent) stage?
Neither did appellant proffer sufficient evidence in regard to the third phase
of the cycle. She simply mentioned that she would usually run away to her
mothers or fathers house;[58] that Ben would seek her out, ask for her
forgiveness and promise to change; and that believing his words, she would
return to their common abode.
Did she ever feel that she provoked the violent incidents between her and
her spouse? Did she believe that she was the only hope for Ben to reform?
And that she was the sole support of his emotional stability and well-being?
Conversely, how dependent was she on him? Did she feel helpless and
trapped in their relationship? Did both of them regard death as preferable to
separation?
In sum, the defense failed to elicit from appellant herself her factual
experiences and thoughts that would clearly and fully demonstrate the
essential characteristics of the syndrome.
The Court appreciates the ratiocinations given by the expert witnesses for
the defense. Indeed, they were able to explain fully, albeit merely
theoretically and scientifically, how the personality of the battered woman
usually evolved or deteriorated as a result of repeated and severe beatings
inflicted upon her by her partner or spouse. They corroborated each others

testimonies, which were culled from their numerous studies of hundreds of
actual cases. However, they failed to present in court the factual experiences
and thoughts that appellant had related to them -- if at all -- based on which
they concluded that she had BWS.
We emphasize that in criminal cases, all the elements of a modifying
circumstance must be proven in order to be appreciated. To repeat, the
records lack supporting evidence that would establish all the essentials of the
battered woman syndrome as manifested specifically in the case of the
Genosas.
BWS as Self-Defense
In any event, the existence of the syndrome in a relationship does not in
itself establish the legal right of the woman to kill her abusive partner.
Evidence must still be considered in the context of 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[60] -- she must have actually feared imminent harm from
her batterer and honestly believed in the need to kill him in order to save her
life.
Settled in our jurisprudence, however, is the rule that the one who resorts to
self-defense must face a real threat on ones life; and the peril sought to be
avoided must be imminent and actual, not merely imaginary.[61] Thus, the
Revised Penal Code provides the following requisites and effect of self-
defense:[62]
Art. 11. Justifying circumstances. -- The following do not incur any criminal
liability:
1. Anyone who acts in defense of his person or rights, provided that the
following circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending
himself.
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Unlawful aggression is the most essential element of self-defense. [63] It
presupposes actual, sudden and unexpected attack -- or an imminent danger
thereof -- on the life or safety of a person. [64] In the present case, however,
according to the testimony of Marivic herself, there was a sufficient time
interval between the unlawful aggression of Ben and her fatal attack upon
him. She had already been able to withdraw from his violent behavior and
escape to their childrens bedroom. During that time, he apparently ceased
his attack and went to bed. The reality or even the imminence of the danger
he posed had ended altogether. He was no longer in a position that
presented an actual threat on her life or safety.
Had Ben still been awaiting Marivic when she came out of their childrens
bedroom -- and based on past violent incidents, there was a great probability
that he would still have pursued her and inflicted graver harm -- then, the
imminence of the real threat upon her life would not have ceased yet. Where
the brutalized person is already suffering from BWS, further evidence of
actual physical assault at the time of the killing is not required. Incidents of
domestic battery usually have a predictable pattern. To require the battered
person to await an obvious, deadly attack before she can defend her life
would amount to sentencing her to murder by installment. [65] Still, impending
danger (based on the conduct of the victim in previous battering episodes)
prior to the defendants use of deadly force must be shown. Threatening
behavior or communication can satisfy the required imminence of danger.
[66]
 Considering such circumstances and the existence of BWS, self-defense
may be appreciated.
We reiterate the principle that aggression, if not continuous, does not
warrant self-defense.[67] In the absence of such aggression, there can be no
self-defense -- complete or incomplete -- on the part of the victim.[68] Thus,
Marivics killing of Ben was not completely justified under the circumstances.
Mitigating Circumstances Present
In any event, all is not lost for appellant. While she did not raise any other
modifying circumstances that would alter her penalty, we deem it proper to
evaluate and appreciate in her favor circumstances that mitigate her criminal
liability. It is a hornbook doctrine that an appeal in a criminal case opens it
wholly for review on any issue, including that which has not been raised by
the parties.[69]

From several psychological tests she had administered to Marivic, Dra.
Dayan, in her Psychological Evaluation Report dated November 29, 2000,
opined as follows:
This is a classic case of a Battered Woman Syndrome. The repeated
battering Marivic experienced with her husband constitutes a form of
[cumulative] provocation which broke down her psychological resistance and
natural self-control. It is very clear that she developed heightened sensitivity
to sight of impending danger her husband posed continuously. Marivic truly
experienced at the hands of her abuser husband a state of psychological
paralysis which can only be ended by an act of violence on her part.  [70]
Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the
effect of repetitious pain taking, repetitious battering, [and] repetitious
maltreatment as well as the severity and the prolonged administration of the
battering is posttraumatic stress disorder.[71] Expounding thereon, he said:
Q What causes the trauma, Mr. Witness?
A What causes the trauma is probably the repetitious battering. Second, the
severity of the battering. Third, the prolonged administration of battering or
the prolonged commission of the battering and the psychological and
constitutional stamina of the victim and another one is the public and social
support available to the victim. If nobody is interceding, the more she will go
to that disorder....
xxxxxxxxx
Q You referred a while ago to severity. What are the qualifications in terms
of severity of the postraumatic stress disorder, Dr. Pajarillo?
A The severity is the most severe continuously to trig[g]er this
post[t]raumatic stress disorder is injury to the head, banging of the head like
that. It is usually the very very severe stimulus that precipitate this
post[t]raumatic stress disorder. Others are suffocating the victim like holding
a pillow on the face, strangulating the individual, suffocating the individual,
and boxing the individual. In this situation therefore, the victim is heightened
to painful stimulus, like for example she is pregnant, she is very susceptible
because the woman will not only protect herself, she is also to protect the
fetus. So the anxiety is heightened to the end [sic] degree.
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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
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 130

was, thus, a resulting diminution of her freedom of action, intelligence or from recovering her normal equanimity. Accordingly, she should further be
intent. Pursuant to paragraphs 9[74] and 10[75] of Article 13 of the Revised credited with the mitigating circumstance of passion and obfuscation.
Penal Code, this circumstance should be taken in her favor and considered
It should be clarified that these two circumstances -- psychological paralysis
as a mitigating factor. [76]
as well as passion and obfuscation -- did not arise from the same set of
In addition, we also find in favor of appellant the extenuating circumstance facts.
of having acted upon an impulse so powerful as to have naturally produced
On the one hand, the first circumstance arose from the cyclical nature and
passion and obfuscation. It has been held that this state of mind is present
the severity of the battery inflicted by the batterer-spouse upon appellant.
when a crime is committed as a result of an uncontrollable burst of passion
That is, the repeated beatings over a period of time resulted in her
provoked by prior unjust or improper acts or by a legitimate stimulus so
psychological paralysis, which was analogous to an illness diminishing the
powerful as to overcome reason.[77] To appreciate this circumstance, the
exercise of her will power without depriving her of consciousness of her acts.
following requisites should concur: (1) there is an act, both unlawful and
sufficient to produce such a condition of mind; and (2) this act is not far The second circumstance, on the other hand, resulted from the violent
removed from the commission of the crime by a considerable length of time, aggression he had inflicted on her prior to the killing. That the incident
during which the accused might recover her normal equanimity. [78] 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
Here, an acute battering incident, wherein Ben Genosa was the unlawful
child. Such perception naturally produced passion and obfuscation on her
aggressor, preceded his being killed by Marivic. He had further threatened to
part.
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 Second Legal Issue:
the time. The attempt on her life was likewise on that of her fetus. [79]His
abusive and violent acts, an aggression which was directed at the lives of Treachery
both Marivic and her unborn child, naturally produced passion and
There is treachery when one commits any of the crimes against persons by
obfuscation overcoming her reason. Even though she was able to retreat to a
employing means, methods or forms in the execution thereof without risk to
separate room, her emotional and mental state continued. According to her,
oneself arising from the defense that the offended party might make. [81] In
she felt her blood pressure rise; she was filled with feelings of self-pity and
order to qualify an act as treacherous, the circumstances invoked must be
of fear that she and her baby were about to die. In a fit of indignation, she
proven as indubitably as the killing itself; they cannot be deduced from mere
pried open the cabinet drawer where Ben kept a gun, then she took the
inferences, or conjectures, which have no place in the appreciation of
weapon and used it to shoot him.
evidence.[82] Because of the gravity of the resulting offense, treachery must
The confluence of these events brings us to the conclusion that there was no be proved as conclusively as the killing itself.[83]
considerable period of time within which Marivic could have recovered her
Ruling that treachery was present in the instant case, the trial court imposed
normal equanimity. Helpful is Dr. Pajarillos testimony[80] that with neurotic
the penalty of death upon appellant. It inferred this qualifying circumstances
anxiety -- a psychological effect on a victim of overwhelming brutality [or]
merely from the fact that the lifeless body of Ben had been found lying in
trauma -- the victim relives the beating or trauma as if it were real, although
bed with an open, depressed, circular fracture located at the back of his
she is not actually being beaten at the time. She cannot control re-
head. As to exactly how and when he had been fatally attacked, however,
experiencing the whole thing, the most vicious and the trauma that she
the prosecution failed to establish indubitably. Only the following testimony
suffered. She thinks of nothing but the suffering. Such reliving which is
of appellant leads us to the events surrounding his death:
beyond the control of a person under similar circumstances, must have been
what Marivic experienced during the brief time interval and prevented her
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 131

Q You said that when Ben came back to your house, he dragged you? How everything on my mind was to pity on myself, then the feeling I had on that
did he drag you? very moment was the same when I was admitted in PHILPHOS Clinic, I was
about to vomit.
COURT:
COURT INTERPRETER
The witness demonstrated to the Court by using her right hand flexed
forcibly in her front neck) (The witness at this juncture is crying intensely).

A And he dragged me towards the door backward. xxxxxxxxx

ATTY. TABUCANON: 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?
Q Where did he bring you?
A Three (3) inches long and inch wide.
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 Q It is a flexible blade?
nag me
A Its a cutter.
Q So you said that he dragged you towards the drawer?
Q How do you describe the blade, is it sharp both edges?
A Yes, sir.
A Yes, because he once used it to me.
Q What is there in the drawer?
Q How did he do it?
A I was aware that it was a gun.
A He wanted to cut my throat.
COURT INTERPRETER
Q With the same blade?
(At this juncture the witness started crying)
A Yes, sir, that was the object used when he intimidate me.
ATTY. TABUCANON:
xxxxxxxxx
Q Were you actually brought to the drawer?
ATTY. TABUCANON:
A Yes, sir.
Q You said that this blade fell from his grip, is it correct?
Q What happened when you were brought to that drawer?
A Yes, because I smashed him.
A He dragged me towards the drawer and he was about to open the drawer
Q What happened?
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 A Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I
was going to kill me and I smashed his arm and then the wallet and the smashed him and I ran to the other room.
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 Q What else happened?
smashed him then I ran to the other room, and on that very moment

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 Ive been through with him, I
took pity on myself and I felt I was about to die also because of my blood
pressure and the baby, so I got that gun and I shot him.
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 victims position relative to appellants at the time
of the shooting. Besides, equally axiomatic is the rule that when a killing is
preceded by an argument or a quarrel, treachery cannot be appreciated as a
qualifying circumstance, because the deceased may be said to have been
forewarned and to have anticipated aggression from the assailant. [85]
Moreover, in order to appreciate alevosia, the method of assault adopted by
the aggressor must have been consciously and deliberately chosen for the
specific purpose of accomplishing the unlawful act without risk from any
defense that might be put up by the party attacked. [86] There is no showing,
though, that the present appellant intentionally chose a specific means of
successfully attacking her husband without any risk to herself from any
retaliatory act that he might make. To the contrary, it appears that the
thought of using the gun occurred to her only at about the same moment
when she decided to kill her batterer-spouse. In the absence of any
convincing proof that she consciously and deliberately employed the method
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 132
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[88] of the same Code.[89] The penalty of reclusion
temporal in its medium period is imposable, considering that two mitigating
circumstances are to be taken into account in reducing the penalty by one
degree, and no other modifying circumstances were shown to have attended
the commission of the offense.[90] Under the Indeterminate Sentence Law,
the minimum of the penalty shall be within the range of that which is next
lower in degree -- prision mayor -- and the maximum shall be within the
range of the medium period of reclusion temporal.
Considering all the circumstances of the instant case, we deem it just and
proper to impose the penalty of prision mayor in its minimum period, or six
(6) years and one (1) day in prison as minimum; 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--vis the given set of
facts in the present case. The Court agonized on how to apply the theory as
a modern-day reality. It took great effort beyond the normal manner in
which decisions are made -- on the basis of existing law and jurisprudence
applicable to the proven facts. To give a just and proper resolution of the
case, it endeavored to take a good look at studies conducted here and
abroad in order to understand the intricacies of the syndrome and the
distinct personality of the chronically abused person. Certainly, the Court has
learned much. And definitely, the solicitor general and appellants counsel,
Atty. Katrina Legarda, have helped it in such learning process.
While our hearts empathize with recurrently battered persons, we can only
work within the limits of law, jurisprudence and given facts. We cannot make

or invent them. Neither can we amend the Revised Penal Code. Only
Congress, in its wisdom, may do so.
The Court, however, is not discounting the possibility of 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 persons mind an
actual fear of an imminent harm from her batterer and an honest belief that
she needed to use force in order to save her life. Third, at the time of the
killing, the batterer must have posed probable -- not necessarily immediate
and actual -- grave harm to the accused, based on the history of violence
perpetrated by the former against the latter. Taken altogether, these
circumstances could satisfy the requisites of self-defense. Under the existing
facts of the present case, however, not all of these elements were duly
established.
WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is
hereby AFFIRMED. However, there being two (2) mitigating 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.
. while the former were proceeding with the fencing off of appellant’s rented
Nos. L-33466-67. April 20, 1983.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MAMERTO
NARVAEZ, defendant-appellant.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 133
Criminal Law; The act of the victims of ordering and actually fencing off the
house and rice mill of the accused constitutes unlawful aggression against
property rights.—The actuation of deceased Fleischer in angrily ordering the
continuance of the fencing would have resulted in the further chiselling of
the walls of appellant’s house as well as the closure of the access to and
from his house and rice mill—which were not only imminent but were
actually in progress. There is no question, therefore, that there was
aggression on the part of the victims: Fleischer was ordering, and Rubia was
actually participating in the fencing. This was indeed aggression, not on the
person of appellant, but on his property rights.
Same; Lease; Where the landlord had given his tenant up to December 31,
1968 within which to vacate the land, the former should have allowed the
latter the peaceful enjoyment of the leased and not fenced-off and chiselled
the estate and house of the latter before the said time. In so doing the
landlord committed an unlawful aggression.—In any case, Fleischer had
given him up to December 31, 1968 (Exh. 10, p. 2, Defense Exhibits) within
which to vacate the land. He should have allowed appellant the peaceful
enjoyment of his properties up to that time, instead of chiselling the walls of
his house and closing appellant’s entrance and exit to the highway.
Same; Same; Same; Property.—Conformably to the foregoing provisions, the
deceased had no right to destroy or cause damage to appellant’s house, nor
to close his accessibility to the highway while he was pleading with them to
stop and talk things over with him. The assault on appellant’s property,
therefore, amounts to unlawful aggression as contemplated by law.
Same; Same; Same; Same; Same.—In the case at bar, there was an actual
physical invasion of appellant’s property which he had the right to resist,
pursuant to Art. 429 of the Civil Code of the Philippines.
Same; Shooting of the victims by the appellant from the window of his house
estate despite the latter’s plea to stop the same is disproportionate to the
physical aggression of the victims.—The reasonableness of the resistance is
also a requirement of the justifying circumstance of self defense or defense
of one’s rights under paragraph 1 of Article 11, Revised Penal Code. When
the appellant fired his shotgun from his window, killing his two victims, his
resistance was disproportionate to the attack.

Same; Appellant who was sleeping when the victims chiselled his house and
fenced off his estate and who asked them to stop doing so is not guilty of
sufficient provocation when he shot the victims who ignored his plea.—WE
find, however, that the third element of defense of property is present, i.e.,
lack of sufficient provocation on the part of appellant who was defending his
property. As a matter of fact, there was no provocation at all on his part,
since he was asleep at first and was only awakened by the noise produced
by the victims and their laborers. His plea for the deceased and their men to
stop and talk things over with him was no provocation at all.
Same; Treachery cannot be appreciated where provocation came from the
deceased.—The crime committed is homicide on two counts. The qualifying
circumstance of treachery cannot be appreciated in this case because of the
presence of provocation on the part of the deceased.
Same; Treachery is not present where the slayer acted instantaneously.—
Moreover, in order to appreciate alevosia, “it must clearly appear that the
method of assault adopted by the aggressor was deliberately chosen with a
special view to the accomplishment of the act without risk to the assailant
from any defense that the party assailed might have made. This cannot be
said of a situation where the slayer acted instantaneously x x x” (People vs.
Cañete, 44 Phil. 481).
Same; Evidence; Laborer employed by victim is an obviously biased witness.
—Moreover, the obvious bias of witness Crisanto Ibañez, as a laborer of the
deceased Davis Fleischer, neutralizes his credibility.
Same; Where there is no evidence of planning or preparation to kill, evident
premeditation cannot be appreciated.—Since in the case at bar, there was no
direct evidence of the planning or preparation to kill the victims nor that the
accused premeditated the killing, and clung to his premeditated act, the trial
court’s conclusion as to the presence of such circumstance may not be
endorsed. Evident premeditation is further negated by appellant pleading
with the victims to stop the fencing and destroying his house and to talk
things over just before the shooting.
Same; There is passion/obfuscation where the accused awoke to find out
that his house is being chiselled and fenced off.—Likewise, WE find that
passion and obfuscation attended the commission of the crime. The
appellant awoke to find his house being damaged and its accessibility to the
highway as well as of his rice mill bodega being closed. Not only was his
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 134
house being unlawfully violated; his business was also in danger of closing
down for lack of access to the highway. These circumstances, coming so
near to the time when his first house was dismantled, thus forcing him to
transfer to his only remaining house, must have so aggravated his
obfuscation that he lost momentarily all reason causing him to reach for his
shotgun and fire at the victims in defense of his rights. Considering the
antecedent facts of this case, where appellant had thirty years earlier
migrated to this so-called “land of promise” with dreams and hopes of
relative prosperity and tranquility, only to find his castle crumbling at the
hands of the deceased, his dispassionate plea going unheeded—all these
could be too much for any man—he should be credited with this mitigating
circumstances.
Same; Penalty; Where there is incomplete self-defense the accused is
entitled to a penalty lower by one or two degrees. The same may be further
reduced where there are two mitigating circumstances.—Article 249 of the
Revised Penal Code prescribes the penalty for homicide as reclusion
temporal. Pursuant to Article 69, supra, the penalty lower by one or two
degrees shall be imposed if the deed is not wholly excusable by reason of
the lack of some of the conditions required to justify the same. Considering
that the majority of the requirements for defense of property are present,
the penalty may be lowered by two degrees, i.e., to prision correccional. And
under paragraph 5 of Article 64, the same may further be reduced by one
degree, i.e., arresto mayor, because of the presence of two mitigating
circumstances and no aggravating circumstance.
Same; Damages; Civil liability of accused shall be reduced where the victims
contributed to the gravity of the reaction of the accused.—The civil liability of
the appellant should be modified. In the case of Zulueta vs. Pan American
World Airways (43 SCRA 397), the award for moral damages was reduced
because the plaintiff contributed to the gravity of defendant’s reaction. In the
case at bar, the victims not only contributed but they actually provoked the
attack by damaging appellant’s properties and business. Considering
appellant’s standing in the community, being married to a municipal
councilor, the victims’ actuations were apparently designed to humiliate him
and destroy his reputation. The records disclose that his wife, councilor
Feliza Narvaez, was also charged in these two cases and detained without
bail despite the absence of evidence linking her to the killings. She was
dropped as a defendant only upon motion of the prosecution dated October
31, 1968.

Same; Same; Inordinate desire of owners/officers of a company with large
landholdings already to acquire more lands thereby uprooting land settlers
should be taken to account in reducing the civil liability of the accused for
homicide.—Moreover, these cases arose out of an inordinate desire on the
part of Fleischer and Company, despite its extensive landholdings in a
Central Visayan province, to extend its accumulation of public lands to the
resettlement areas of Cotabato. Since it had the capability—financial and
otherwise—to carry out its land accumulation scheme, the lowly settlers, who
uprooted their families from their native soil in Luzon to take advantage of
the government’s resettlement program, but had no sufficient means to fight
the big landowners, were the ones prejudiced. Thus, the moral and material
suffering of appellant and his family deserves leniency as to his civil liability.
Same; R.A. 5465 which abolished subsidiary imprisonment for non-payment
of civil indemnity is favorable to the accused and is given retroactive effect.—
Furthermore, Article 39 of the Revised Penal Code requires a person
convicted of prision correccional or arresto mayor and fine who has no
property with which to meet his civil liabilities to serve a subsidiary
imprisonment at the rate of one (1) day for each P2.50. However, the
amendment introduced by Republic Act No. 5465 on April 21, 1969 made the
provisions of Art. 39 applicable to fines only and not to reparation of the
damage caused, indemnification of consequential damages and costs of
proceedings. Considering that Republic Act 5465 is favorable to the accused
who is not a habitual delinquent, it may be given retroactive effect pursuant
to Article 22 of the Revised Penal Code.
Gutierrez, J., separate opinion; dissenting in part:
Criminal Law; Defense of property to be available in prosecutions for murder
or homicide must be coupled with an attack on the person defending it which
is not present in the case at bar.—Defense of property is not of such
importance as the right to life and defense of property can only be invoked
when it is coupled with some form of attack on the person of one entrusted
with said property. The defense of property, whether complete or
incomplete, to be available in prosecutions for murder or homicide must be
coupled with an attack by the one getting the property on the person
defending it.
Same; Same.—In the case now before Us, there is absolutely no evidence
that an attack was attempted, much less made upon the person of appellant.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 135
The mere utterance “No, gademit, proceed, go ahead” is not the unlawful
aggression which entitles appellant to the plea of self-defense. I agree with
the majority opinion that the crime is homicide but without any privileged
mitigating circumstance.
APPEAL from the decision of the Court of First Instance of South Cotabato,
Br. I.
The facts are stated in the opinion of the Court.
     The Solicitor General for plaintiff-appellee.
     Gonzalo B. Callanta (counsel de oficio) for defendant-appellant.
MAKASIAR, J.:
This is an appeal from the decision of the Court of First Instance of South
Cotabato, Branch I, in Criminal Cases Nos. 1815 and 1816 for murder which,
after a joint trial, resulted in the conviction of the accused in a decision
rendered on September 8, 1970, with the following pronouncement:
Thus, we have a crime of MURDER qualified by treachery with the
aggravating circumstance of evident premeditation offset by the mitigating
circumstance of voluntary surrender. The proper penalty imposable,
therefore, is RECLUSION PERPETUA (Arts. 248 and 64, Revised Penal Code).
Accordingly, finding Mamerto Narvaez guilty beyond reasonable doubt of the
crime of murder,
(a) In Criminal Case No. 1815, he is hereby sentenced to RECLUSION
PERPETUA, to indemnify the heirs of the deceased Davis Q. Fleischer in the
sum of P 12,000.00 as compensatory damages, P 10,000.00 as moral
damages, P 2,000.00 as attorney's fees, the offended party having been
represented by a private prosecutor, and to pay the costs;
(b) In Criminal Case No. 1816, he is hereby sentenced to RECLUSION
PERPETUA, to indemnify the heirs of the deceased Flaviano Rubia in the sum
of P12,000.00 as compensatory damages, P10,000.00 as moral damages,
P2,000.00 as attorney's fees, the offended party having been represent by a
private prosecutor, and to pay the costs (p. 48, rec.).
The facts are summarized in the People's brief, as follows:

At about 2:30 in the afternoon of August 22, 1968, Graciano Juan, Jesus
Verano and Cesar Ibanez together with the two deceased Davis Fleischer
and Flaviano Rubia, were fencing the land of George Fleischer, father of
deceased Davis Fleischer. The place was in the boundary of the highway and
the hacienda owned by George Fleischer. This is located in the municipality
of Maitum, South Cotabato. At the place of the fencing is the house and rice
drier of appellant Mamerto Narvaez (pp. 179-182, t.s.n., Pieza II). At that
time, appellant was taking his rest, but when he heard that the walls of his
house were being chiselled, he arose and there he saw the fencing going on.
If the fencing would go on, appellant would be prevented from getting into
his house and the bodega of his ricemill. So he addressed the group, saying
'Pare, if possible you stop destroying my house and if possible we will talk it
over what is good,' addressing the deceased Rubia, who is appellant's
compadre. The deceased Fleischer, however, answered: 'No, gademit,
proceed, go ahead.' Appellant apparently lost his equilibrium and he got his
gun and shot Fleischer, hitting him. As Fleischer fell down, Rubia ran towards
the jeep, and knowing there is a gun on the jeep, appellant fired at Rubia,
likewise hitting him (pp. 127-133, t.s.n., Defense transcript). Both Fleischer
and Rubia died as a result of the shotting' (pp. 9-14, t.s.n., Pieza I, pp. 8-9,
Appellant's Brief, p.161, rec.).
It appears, however, that this incident is intertwined with the long drawn out
legal battle between the Fleischer and Co., Inc. of which deceased Fleischer
was the secretary-treasurer and deceased Rubia the assistant manager, on
the one hand, and the land settlers of Cotabato, among whom was
appellant.
From the available records of the related cases which had been brought to
the Court of Appeals (CA-G.R. Nos. 28858-R and 50583-R) and to this Court
on certiorari (G.R. No. L-26757 and L-45504), WE take judicial notice of the
following antecedent facts:
Appellant was among those persons from northern and central Luzon who
went to Mindanao in 1937 and settled in Maitum, a former sitio of Kiamba
and now a separate municipality of South Cotabato. He established his
residence therein, built his house, cultivated the area, and was among those
who petitioned then President Manuel L. Quezon to order the subdivision of
the defunct Celebes Plantation and nearby Kalaong Plantation totalling about
2,000 hectares, for distribution among the settlers.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 136
Shortly thereafter, Fleischer and Company, headed by George W. Fleischer,
an American landowner in Negros Oriental, filed sales application No. 21983
on June 3, 1937 over the same area formerly leased and later abandoned by
Celebes Plantation Company, covering 1,017.2234 hectares.
Meanwhile, the subdivision was ordered and a public land surveyor did the
actual survey in 1941 but the survey report was not submitted until 1946
because of the outbreak of the second world war. According to the survey,
only 300 hectares Identified as Lots Nos. 22, 26 and 38, Ps. 176 Kiamba,
were set aside for Sales Application No. 21983, while the rest were
subdivided into sublots of 5 to 6 hectares each to be distributed among the
settlers (pp. 32-33, G.R. No. L-45504).
The 300 hectares set aside for the sales application of Fleischer and
Company was declared open for disposition, appraised and advertised for
public auction. At the public auction held in Manila on August 14, 1948,
Fleischer and Company was the only bidder for P6,000.00. But because of
protests from the settlers the corresponding award in its favor was held in
abeyance, while an investigator was sent by the Director of Lands to Kiamba
in the person of Atty. Jose T. Gozon Atty. Gozon came back after ten days
with an amicable settlement signed by the representative of the settlers. This
amicable settlement was later repudiated by the settlers, but the Director of
Lands, acting upon the report of Atty. Gozon, approved the same and
ordered the formal award of the land in question to Fleischer and Company.
The settlers appealed to the Secretary of Agriculture and Natural Resources,
who, however, affirmed the decision in favor of the company.
On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First
Instance of Cotabato which then consisted only of one sala, for the purpose
of annulling the order of the Secretary of Agriculture and Natural Resources
which affirmed the order of the Director of Lands awarding the contested
land to the company. The settlers as plaintiffs, lost that case in view of the
amicable settlement which they had repudiated as resulting from threats and
intimidation, deceit, misrepresentation and fraudulent machination on the
part of the company. They appealed to the Court of Appeals (CA-G.R. No.
28858-R) which likewise affirmed on August 16, 1965 the decision of the
Court of First Instance in favor of the company.
This resulted in the ouster of the settlers by an order of the Court of First
Instance dated September 24, 1966, from the land which they had been

occupying for about 30 years. Among those ejected was the appellant who,
to avoid trouble, voluntarily dismantled his house, built in 1947 at a cost of
around P20,000.00, and transferred to his other house which he built in 1962
or 1963 near the highway. The second house is not far from the site of the
dismantled house. Its ground floor has a store operated by Mrs. June Talens
who was renting a portion thereof. He also transferred his store from his
former residence to the house near the highway. Aside from the store, he
also had a rice mill located about 15 meters east of the house and a concrete
pavement between the rice mill and the house, which is used for drying
grains and copra.
On November 14, 1966, appellant was among the settlers on whose behalf
Jose V. Gamboa and other leaders filed Civil Case No. 755 in the Court of
First Instance of Cotabato, Branch I. to obtain an injunction or annulment of
the order of award with prayer for preliminary injunction. During the
pendency of this case, appellant on February 21, 1967 entered into a
contract of lease with the company whereby he agreed to lease an area of
approximately 100 to 140 square meters of Lot No. 38 from the company
(Exh. 9, p. 1, Folder of Exhibits for Defense) for a consideration of P16.00
monthly. According to him, he signed the contract although the ownership of
the land was still uncertain, in order to avoid trouble, until the question of
ownership could be decided. He never paid the agreed rental, although he
alleges that the milling job they did for Rubia was considered payment. On
June 25, 1968, deceased Fleischer wrote him a letter with the following
tenor:
You have not paid six months rental to Fleischers & Co., Inc. for that portion
of land in which your house and ricemill are located as per agreement
executed on February 21, 1967. You have not paid as as even after repeated
attempts of collection made by Mr. Flaviano Rubia and myself.
In view of the obvious fact that you do not comply with the agreement, I
have no alternative but to terminate our agreement on this date.
I am giving you six months to remove your house, ricemill, bodega, and
water pitcher pumps from the land of Fleischers & Co., Inc. This six- month
period shall expire on December 31, 1966.
In the event the above constructions have not been removed within the six-
month period, the company shall cause their immediate demolition (Exhibit
10, p. 2, supra).
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 137
On August 21, 1968, both deceased, together with their laborers,
commenced fencing Lot 38 by putting bamboo posts along the property line
parallel to the highway. Some posts were planted right on the concrete drier
of appellant, thereby cutting diagonally across its center (pp. 227-228, t.s.n.,
Vol. 2), with the last post just adjacent to appellant's house (p. 231,
t.s.n., supra). The fence, when finished, would have the effect of shutting off
the accessibility to appellant's house and rice mill from the highway, since
the door of the same opens to the Fleischers' side. The fencing continued on
that fateful day of August 22, 1968, with the installation of four strands of
barbed wire to the posts.
At about 2:30 p.m. on the said day, appellant who was taking a nap after
working on his farm all morning, was awakened by some noise as if the wall
of his house was being chiselled. Getting up and looking out of the window,
he found that one of the laborers of Fleischer was indeed chiselling the wall
of his house with a crowbar (p. 129, t.s.n., Vol. 6), while deceased Rubia
was nailing the barbed wire and deceased Fleischer was commanding his
laborers. The jeep used by the deceased was parked on the highway. The
rest of the incident is narrated in the People's Brief as above-quoted.
Appellant surrendered to the police thereafter, bringing with him shotgun No.
1119576 and claiming he shot two persons (Exh. Pp. 31, Defense Exhibits).
Appellant now questions the propriety of his conviction, assigning the
following errors:
First Assignment of Error: That the lower court erred in convicting
defendant-appellant despite the fact that he acted in defense of his person;
and
Second Assignment of Error: That the court a quo also erred in convicting
defendant-appellant although he acted in defense of his rights (p. 20 of
Appellant's Brief, p. 145, rec.).
The act of killing of the two deceased by appellant is not disputed. Appellant
admitted having shot them from the window of his house with the shotgun
which he surrendered to the police authorities. He claims, however, that he
did so in defense of his person and of his rights, and therefore he should be
exempt from criminal liability.

Defense of one's person or rights is treated as a justifying circumstance
under Art. 11, par. 1 of the Revised Penal Code, but in order for it to be
appreciated, the following requisites must occur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending
himself (Art. 11, par. 1, Revised Penal Code, as amended).
The aggression referred to by appellant is the angry utterance by deceased
Fleischer of the following words: "Hindi, sigue, gademit, avante", in answer
to his request addressed to his compadre, the deceased Rubia, when he
said, "Pare, hinto mona ninyo at pag-usapan natin kung ano ang mabuti"
(pp. 227-229, t.s.n., Vol. 6). This was in reaction to his having been
awakened to see the wall of his house being chiselled. The verbal exchange
took place while the two deceased were on the ground doing the fencing and
the appellant was up in his house looking out of his window (pp. 225-
227, supra). According to appellant, Fleischer's remarks caused this reaction
in him: "As if, I lost my senses and unknowingly I took the gun on the bed
and unknowingly also I shot Mr. Fleischer, without realizing it, I shot Mr.
Fleischer" (p. 132, supra). As for the shooting of Rubia, appellant testified:
When I shot Davis Fleischer, Flaviano Rubia was nailing and upon hearing
the shot, Mr. Rubia looked at Mr. Fleischer and when Mr. Fleischer fell down,
Mr. Rubia ran towards the jeep and knowing that there was a firearm in the
jeep and thinking that if he will take that firearm he will kill me, I shot at him
(p. 132, supra, Emphasis supplied).
The foregoing statements of appellant were never controverted by the
prosecution. They claim, however, that the deceased were in lawful exercise
of their rights of ownership over the land in question, when they did the
fencing that sealed off appellant's access to the highway.
A review of the circumstances prior to the shooting as borne by the evidence
reveals that five persons, consisting of the deceased and their three laborers,
were doing the fencing and chiselling of the walls of appellant's house. The
fence they were putting up was made of bamboo posts to which were being
nailed strands of barbed wire in several layers. Obviously, they were using
tools which could be lethal weapons, such as nail and hammer, bolo or
bamboo cutter, pliers, crowbar, and other necessary gadgets. Besides, it was
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 138
not disputed that the jeep which they used in going to the place was parked
just a few steps away, and in it there was a gun leaning near the steering
wheel. When the appellant woke up to the sound of the chiselling on his
walls, his first reaction was to look out of the window. Then he saw the
damage being done to his house, compounded by the fact that his house
and rice mill will be shut off from the highway by the fence once it is
finished. He therefore appealed to his compadre, the deceased Rubia, to
stop what they were doing and to talk things over with him. But deceased
Fleischer answered angrily with 'gademit' and directed his men to proceed
with what they were doing.
The actuation of deceased Fleischer in angrily ordering the continuance of
the fencing would have resulted in the further chiselling of the walls of
appellant's house as well as the closure of the access to and from his house
and rice mill-which were not only imminent but were actually in progress.
There is no question, therefore, that there was aggression on the part of the
victims: Fleischer was ordering, and Rubia was actually participating in the
fencing. This was indeed aggression, not on the person of appellant, but on
his property rights.
The question is, was the aggression unlawful or lawful? Did the victims have
a right to fence off the contested property, to destroy appellant's house and
to shut off his ingress and egress to his residence and the highway?
Article 30 of the Civil Code recognizes the right of every owner to enclose or
fence his land or tenements.
However, at the time of the incident on August 22, 1968, Civil Case no. 755
for annulment of the order of award to Fleischer and Company was still
pending in the Court of First Instance of Cotabato. The parties could not
have known that the case would be dismissed over a year after the incident
on August 22, 1968, as it was dismissed on January 23, 1970 on ground
of res judicata, in view of the dismissal in 1965 (by the Court of Appeals) of
Civil Case No. 240 filed in 1950 for the annulment of the award to the
company, between the same parties, which the company won by virtue of
the compromise agreement in spite of the subsequent repudiation by the
settlers of said compromise agreement; and that such 1970 dismissal also
carried the dismissal of the supplemental petition filed by the Republic of the
Philippines on November 28, 1968 to annul the sales patent and to cancel
the corresponding certificate of title issued to the company, on the ground

that the Director of Lands had no authority to conduct the sale due to his
failure to comply with the mandatory requirements for publication. The
dismissal of the government's supplemental petition was premised on the
ground that after its filing on November 28, 1968, nothing more was done by
the petitioner Republic of the Philippines except to adopt all the evidence and
arguments of plaintiffs with whom it joined as parties-plaintiffs.
Hence, it is reasonable to believe that appellant was indeed hoping for a
favorable judgment in Civil Case No. 755 filed on November 14, 1966 and his
execution of the contract of lease on February 21, 1967 was just to avoid
trouble. This was explained by him during cross-examination on January 21,
1970, thus:
It happened this way: we talked it over with my Mrs. that we better rent the
place because even though we do not know who really owns this portion to
avoid trouble. To avoid trouble we better pay while waiting for the case
because at that time, it was not known who is the right owner of the place.
So we decided until things will clear up and determine who is really the
owner, we decided to pay rentals (p. 169, t.s.n., Vol.6).
In any case, Fleischer had given him up to December 31, 1968 (Exh.10, p. 2,
Defense Exhibits) within which to vacate the land. He should have allowed
appellant the peaceful enjoyment of his properties up to that time, instead of
chiselling the walls of his house and closing appellant's entrance and exit to
the highway.
The following provisions of the Civil Code of the Philippines are in point:
Art. 536. In no case may possession be acquired through force or
intimidation as long as there is a possessor who objects thereto. He who
believes that he has an action or a right to deprive another of the holding of
a thing must invoke the aid of the competent court, if the holder should
refuse to deliver the thing.
Art. 539. Every possessor has a right to be respected in his possession; and
should he be disturbed therein he shall be protected in or restored to said
possession by the means established by the laws and the Rules of Court
(Articles 536 and 539, Civil Code of the Philippines).
Conformably to the foregoing provisions, the deceased had no right to
destroy or cause damage to appellant's house, nor to close his accessibility
to the highway while he was pleading with them to stop and talk things over
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 139
with him. The assault on appellant's property, therefore, amounts to unlawful
aggression as contemplated by law.
Illegal aggression is equivalent to assault or at least threatened assault of
immediate and imminent kind (People vs. Encomiendas, 46 SCRA 522).
In the case at bar, there was an actual physical invasion of appellant's
property which he had the right to resist, pursuant to Art. 429 of the Civil
Code of the Philippines which provides:
Art. 429. The owner or lawful possessor  of a thing has the right to exclude
any person from the enjoyment and disposal thereof.  For this purpose, he
may use such force as may be reasonably necessary to repel or prevent an
actual or threatened unlawful physical invasion or usurpation of his
property (Emphasis supplied).
The reasonableness of the resistance is also a requirement of the justifying
circumstance of self-defense or defense of one's rights under paragraph 1 of
Article 11, Revised Penal Code. When the appellant fired his shotgun from
his window, killing his two victims, his resistance was disproportionate to the
attack.
WE find, however, that the third element of defense of property is present,
i.e., lack of sufficient provocation on the part of appellant who was defending
his property. As a matter of fact, there was no provocation at all on his part,
since he was asleep at first and was only awakened by the noise produced
by the victims and their laborers. His plea for the deceased and their men to
stop and talk things over with him was no provocation at all.
Be that as it may, appellant's act in killing the deceased was not justifiable,
since not all the elements for justification are present. He should therefore
be held responsible for the death of his victims, but he could be credited with
the special mitigating circumstance of incomplete defense, pursuant to
paragraph 6, Article 13 of the Revised Penal Code.
The crime committed is homicide on two counts. The qualifying circumstance
of treachery cannot be appreciated in this case because of the presence of
provocation on the part of the deceased. As WE held earlier in People vs.
Manlapaz (55 SCRA 598), the element of a sudden unprovoked attack is
therefore lacking.
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 140

Moreover, in order to appreciate alevosia,  "it must clearly appear that the and clung to his premeditated act, the trial court's conclusion as to the
method of assault adopted by the aggressor was deliberately chosen with a presence of such circumstance may not be endorsed.
special view to the accomplishment of the act without risk to the assailant
Evident premeditation is further negated by appellant pleading with the
from any defense that the party assailed might have made. This cannot be
victims to stop the fencing and destroying his house and to talk things over
said of a situation where the slayer acted instantaneously ..." (People vs.
just before the shooting.
Cañete, 44 Phil. 481).
But the trial court has properly appreciated the presence of the mitigating
WE likewise find the aggravating (qualifying) circumstance of evident
circumstance of voluntary surrender, it appearing that appellant surrendered
premeditation not sufficiently established. The only evidence presented to
to the authorities soon after the shooting.
prove this circumstance was the testimony of Crisanto Ibañez, 37 years old,
married, resident of Maitum, South Cotabato, and a laborer of Fleischer and Likewise, We find that passion and obfuscation attended the commission of
Company, which may be summarized as follows: the crime. The appellant awoke to find his house being damaged and its
accessibility to the highway as well as of his rice mill bodega being closed.
On August 20, 1968 (two days before the incident) at about 7:00 A.M., he
Not only was his house being unlawfully violated; his business was also in
was drying corn near the house of Mr. and Mrs. Mamerto Narvaez at the
danger of closing down for lack of access to the highway. These
crossing, Maitum, South Cotabato, when the accused and his wife talked to
circumstances, coming so near to the time when his first house was
him. Mrs. Narvaez asked him to help them, as he was working in the
dismantled, thus forcing him to transfer to his only remaining house, must
hacienda. She further told him that if they fenced their house, there is a
have so aggravated his obfuscation that he lost momentarily all reason
head that will be broken. Mamerto Narvaez added 'Noy, it is better that you
causing him to reach for his shotgun and fire at the victims in defense of his
will tell Mr. Fleischer because there will be nobody who will break his head
rights. Considering the antecedent facts of this case, where appellant had
but I will be the one.' He relayed this to Mr. Flaviano Rubia, but the latter
thirty years earlier migrated to this so-called "land of promise" with dreams
told him not to believe as they were only Idle threats designed to get him
and hopes of relative prosperity and tranquility, only to find his castle
out of the hacienda (pp. 297-303, t.s.n., Vol. 2).
crumbling at the hands of the deceased, his dispassionate plea going
This single evidence is not sufficient to warrant appreciation of the unheeded-all these could be too much for any man-he should be credited
aggravating circumstance of evident premeditation. As WE have consistently with this mitigating circumstance.
held, there must be "direct evidence of the planning or preparation to kill the
Consequently, appellant is guilty of two crimes of homicide only, the killing
victim, .... it is not enough that premeditation be suspected or surmised, but
not being attended by any qualifying nor aggravating circumstance, but
the criminal intent must be evidenced by notorious outward acts evincing the
extenuated by the privileged mitigating circumstance of incomplete defense-
determination to commit the crime" (People vs. Ordioles, 42 SCRA 238).
in view of the presence of unlawful aggression on the part of the victims and
Besides, there must be a "showing" that the accused premeditated the
lack of sufficient provocation on the part of the appellant-and by two generic
killing; that the culprit clung to their (his) premeditated act; and that there
mitigating circumstance of voluntary surrender and passion and obfuscation.
was sufficient interval between the premeditation and the execution of the
crime to allow them (him) to reflect upon the consequences of the act" Article 249 of the Revised Penal Code prescribes the penalty for homicide
(People vs. Gida, 102 SCRA 70). as reclusion temporal. Pursuant to Article 69, supra, the penalty lower by one
or two degrees shall be imposed if the deed is not wholly excusable by
Moreover, the obvious bias of witness Crisanto Ibañez, as a laborer of the
reason of the lack of some of the conditions required to justify the same.
deceased Davis Fleischer, neutralizes his credibility.
Considering that the majority of the requirements for defense of property are
Since in the case at bar, there was no direct evidence of the planning or present, the penalty may be lowered by two degrees, i.e., to prision
preparation to kill the victims nor that the accused premeditated the killing, correccional And under paragraph 5 of Article 64, the same may further be
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 141

reduced by one degree, i.e., arresto mayor, because of the presence of two
mitigating circumstances and no aggravating circumstance.
The civil liability of the appellant should be modified. In the case of Zulueta
vs. Pan American World Airways (43 SCRA 397), the award for moral
damages was reduced because the plaintiff contributed to the gravity of
defendant's reaction. In the case at bar, the victims not only contributed but
they actually provoked the attack by damaging appellant's properties and
business. Considering appellant's standing in the community, being married
to a municipal councilor, the victims' actuations were apparently designed to
humiliate him and destroy his reputation. The records disclose that his wife,
councilor Feliza Narvaez, was also charged in these two cases and detained
without bail despite the absence of evidence linking her to the killings. She
was dropped as a defendant only upon motion of the prosecution dated
October 31, 1968. (p. 14, CFI rec. of Crim. Case No. 1816), but acted upon
on November 4, 1968 (p. 58, CFI rec. of Criminal Case No. 1815).
EXTENUATING CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE AS WELL
AS BY TWO (2) GENERIC MITIGATING CIRCUMSTANCES OF VOLUNTARY
SURRENDER AND OBFUSCATION, WITHOUT ANY AGGRAVATING
CIRCUMSTANCE, APPELLANT IS HEREBY SENTENCED TO SUFFER AN
IMPRISONMENT OF FOUR (4) MONTHS OF ARRESTO MAYOR, TO
INDEMNIFY EACH GROUP OF HEIRS OF DAVIS FLEISCHER AND OF
FLAVIANO RUBIA IN THE SUM OF FOUR THOUSAND (P 4,000.00) PESOS,
WITHOUT SUBSIDIARY IMPRISONMENT AND WITHOUT ANY AWARD FOR
MORAL DAMAGES AND ATTORNEY'S FEES.
CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR
ALMOST FOURTEEN (14) YEARS NOW SINCE HIS VOLUNTARY SURRENDER
ON AUGUST 22,1968, HIS IMMEDIATE RELEASE IS HEREBY ORDERED. NO
COSTS.
SO ORDERED.

Moreover, these cases arose out of an inordinate desire on the part of

Fernando, C.J., Teehankee, Concepcion Jr., Guerrero, De Castro, Melencio-
Fleischer and Company, despite its extensive landholdings in a Central Herrera, Escolin Vasquez and Relova, JJ., concur.
Visayan province, to extend its accumulation of public lands to the Aquino, J., is on leave.
resettlement areas of Cotabato. Since it had the capability-financial and
otherwise-to carry out its land accumulation scheme, the lowly settlers, who Plana, J., in the result.
uprooted their families from their native soil in Luzon to take advantage of
the government's resettlement program, but had no sufficient means to fight
the big landowners, were the ones prejudiced. Thus, the moral and material
suffering of appellant and his family deserves leniency as to his civil liability.

Furthermore, Article 39 of the Revised Penal Code requires a person

convicted of prision correccional  or arrests mayor and fine who has no
property with which to meet his civil liabilities to serve a subsidiary
imprisonment at the rate of one (1) day for each P 2.50. However, the
amendment introduced by Republic Act No. 5465 on April 21, 1969 made the
provisions of Art. 39 applicable to fines only and not to reparation of the
damage caused, indemnification of consequential damages and costs of
proceedings. Considering that Republic Act 5465 is favorable to the accused
who is not a habitual delinquent, it may be given retroactive effect pursuant
to Article 22 of the Revised Penal Code.

WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT

OF ONLY TWO (2) HOMICIDES, MITIGATED BY THE PRIVILEGED

[CA-No. 384. February 21, 1946]
THE PEOPLE OF THE PHILIPPINES, plaintiff and appellee, vs.
NICOLAS JAURIGUE and AVELINA JAURIGUE, defendants. AVELINA
JAURIGUE, appellant.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 142
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 inflicted 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.
APPEAL from a judgment of the court of First Instance of Laguna. Amador, J.
The facts are stated in the opinion of the court.
Jose Ma. Recto for appellant.
Assistant Solicitor General Enriquez and Solicitor Palma for appellee.
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, Amando Capina, in the sum of
P2,000, and to pay one-half of the costs. She was also credited with one-half
of the period of preventive imprisonment suffered by her.
From said judgment of conviction, defendant Avelina Jaurigue appealed to
the Court of Appeals for Southern Luzon, and in her brief filed therein on
June 10, 1944, claimed —
(1) That the lower court erred in not holding that said appellant had acted in
the legitimate defense of her honor and that she should be completely
absolved of all criminal responsibility;
(2) That the lower court erred in not finding in her favor the additional
mitigating circumstances that (a) she did not have the intention to commit so
grave a wrong as that actually committed, and that (b) she voluntarily
surrendered to the agents of the authorities; and
(3) That the trial court erred in holding that the commission of the alleged
offense was attended by the aggravating circumstance of having been
committed in a sacred place.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 143
The evidence adduced by the parties, at the trial in the court below, has
sufficiently established the following facts:
That both the defendant and appellant Avelina Jaurigue and the deceased
Amado Capina lived in the barrio of Sta. Isabel, City of San Pablo, Province of
Laguna; that for sometime prior to the stabbing of the deceased by
defendant and appellant, in the evening of September 20, 1942, the former
had been courting the latter in vain, and that on one occasion, about one
month before that fatal night, Amado Capina snatched a handkerchief
belonging to her, bearing her nickname "Aveling," while it was being washed
by her cousin, Josefa Tapay.
On September 13, 1942, while Avelina was feeding a dog under her house,
Amado approached her and spoke to her of his love, which she flatly
refused, and he thereupon suddenly embraced and kissed her and touched
her breasts, on account of which Avelina, resolute and quick-tempered girl,
slapped Amado, gave him fist blows and kicked him. She kept the matter to
herself, until the following morning when she informed her mother about it.
Since then, she armed herself with a long fan knife, whenever she went out,
evidently for self-protection.
On September 15, 1942, about midnight, Amado climbed up the house of
defendant and appellant, and surreptitiously entered the room where she
was sleeping. He felt her forehead, evidently with the intention of abusing
her. She immediately screamed for help, which awakened her parents and
brought them to her side. Amado came out from where he had hidden under
a bed in Avelina's room and kissed the hand of Nicolas Jaurigue, her father,
asking for forgiveness; and when Avelina's mother made an attempt to beat
Amado, her husband prevented her from doing so, stating that Amado
probably did not realize what he was doing. Nicolas Jaurigue sent for the
barrio lieutenant, Casimiro Lozada, and for Amado's parents, the following
morning. Amado's parents came to the house of Nicolas Jaurigue and
apologized for the misconduct of their son; and as Nicolas Jaurigue was then
angry, he told them to end the conversation, as he might not be able to
control himself.
In the morning of September 20, 1942, Avelina received information that
Amado had been falsely boasting in the neighborhood of having taken
liberties with her person and that she had even asked him to elope with her
and that if he should not marry her, she would take poison; and that Avelina

again received information of Amado's bragging at about 5 o'clock in the
afternoon of that same day.
At about 8 o'clock in the evening of the same day, September 20, 1942,
Nicolas Jaurigue went to the chapel of the Seventh Day Adventists of which
he was the treasurer, in their barrio, just across the provincial road from his
house, to attend religious services, and sat on the front bench facing the
altar with the other officials of the organization and the barrio lieutenant,
Casimiro Lozada. Inside the chapel it was quite bright as there were electric
lights.
Defendant and appellant Avelina Jaurigue entered the chapel shortly after
the arrival of her father, also for the purpose of attending religious services,
and sat on the bench next to the last one nearest the door. Amado Capina
was seated on the other side of the chapel. Upon observing the presence of
Avelina Jaurigue, Amado Capina went to the bench on which Avelina was
sitting and sat by her right side, and, without saying a word, Amado, with
the greatest of impudence, placed his hand on the upper part of her right
thigh. On observing this highly improper and offensive conduct of Amado
Capina, Avelina Jaurigue, conscious of her personal dignity and honor, pulled
out with her right hand the fan knife marked Exhibit B, which she had in a
pocket of her dress, with the intention of punishing Amado's offending hand.
Amado seized Avelina's right hand, but she quickly grabbed the knife with
her left hand and stabbed Amado once at the base of the left side of the
neck, inflicting upon him a wound about 4 1/2 inches deep, which was
necessarily mortal. Nicolas Jaurigue, who was seated on one of the front
benches, saw Amado bleeding and staggering towards the altar, and upon
seeing his daughter still holding the bloody knife, he approached her and
asked: "Why did you do that," and answering him Avelina said: "Father, I
could not endure anymore." Amado Capina died from the wound a few
minutes later. Barrio lieutenant Casimiro Lozada, who was also in the same
chapel, approached Avelina and asked her why she did that, and Avelina
surrendered herself, saying: "Kayo na po ang bahala sa aquin," meaning: "I
hope you will take care of me," or more correctly, "I place myself at your
disposal." Fearing that Amado's relatives might retaliate, barrio lieutenant
Lozada advised Nicolas Jaurigue and herein defendant and appellant to go
home immediately, to close their doors and windows and not to admit
anybody into the house, unless accompanied by him. That father and
daughter went home and locked themselves up, following instructions of the
barrio lieutenant, and waited for the arrival of the municipal authorities; and
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 144
when three policemen arrived in their house, at about 10 o'clock that night,
and questioned them about the incident, defendant and appellant
immediately surrendered the knife marked as Exhibit B, and informed said
policemen briefly of what had actually happened in the chapel and of the
previous acts and conduct of the deceased, as already stated above, and
went with said policemen to the police headquarters, where her written
statements were taken, and which were presented as a part of the evidence
for the prosecution.
The high conception of womanhood that our people possess, however
humble they may be, is universal. It has been entertained and has existed in
all civilized communities.
A beautiful woman is said to be a jewel; a good woman, a treasure; and that
a virtuous woman represents the only true nobility. And they are the future
wives and mothers of the land. Such are the reasons why, in the defense of
their honor, when brutally attacked, women are permitted to make use of all
reasonable means available within their reach, under the circumstances.
Criminologists and courts of justice have entertained and upheld this view.
On the other hand, it is the duty of every man to protect and show loyalty to
womanhood, as in the days of chivalry. There is a country where women
freely go out unescorted and, like the beautiful roses in their public gardens,
they always receive the protection of all. That country is Switzerland.
In the language of Viada, aside from the right to life on which rests the
legitimate defense of our own person, we have the right to property acquired
by us, and the right to honor which is not the least prized of our patrimony
(1 Viada, Codigo Penal, 5th ed., pp. 172, 173).
The attempt to rape a woman constitutes an unlawful aggression sufficient
to put her in a state of legitimate defense, inasmuch as a woman's honor
cannot but be esteemed as a right as precious, if not more, than her very
existence; and it is evident that a woman who, thus imperiled, wounds, nay
kills the offender, should be afforded exemption from criminal liability, since
such killing cannot be considered a crime from the moment it became the
only means left for her to protect her honor from so great an outrage (1
Viada, Codigo Penal, 5th ed., p. 301; People vs. Luague and Alcansare, 62
Phil., 504). .

As long as there is actual danger of being raped, a woman is justified in
killing her aggressor, in the defense of her honor. Thus, where the deceased
grabbed the defendant in a dark night at about 9 o'clock, in an isolated
barrio trail, holding her firmly from behind, without warning and without
revealing his identity, and, in the struggle that followed, touched her private
parts, and that she was unable to free herself by means of her strength
alone, she was considered justified in making use of a pocket knife in
repelling what she believed to be an attack upon her honor, and which
ended in his death, since she had no other means of defending herself, and
consequently exempt from all criminal liability (People vs. De la Cruz, 16
Phil., 344).
And a woman, in defense of her honor, was perfectly justified in inflicting
wounds on her assailant with a bolo which she happened to be carrying at
the time, even though her cry for assistance might have been heard by
people nearby, when the deceased tried to assault her in a dark and isolated
place, while she was going from her house to a certain tienda, for the
purpose of making purchases (United States vs. Santa Ana and Ramos, 22
Phil., 249).
In the case, however, in which a sleeping woman was awakened at night by
someone touching her arm, and, believing that some person was attempting
to abuse her, she asked who the intruder was and receiving no reply,
attacked and killed the said person with a pocket knife, it was held that,
notwithstanding the woman's belief in the supposed attempt, it was not
sufficient provocation or aggression to justify her completely in using deadly
weapon. Although she actually believed it to be the beginning of an attempt
against her, she was not completely warranted in making such a deadly
assault, as the injured person, who turned out to be her own brother-in-law
returning home with his wife, did not do any other act which could be
considered as an attempt against her honor (United States vs. Apego, 23
Phil., 391)..
In the instant case, if defendant and appellant had killed Amado Capina,
when the latter climbed up her house late at night on September 15, 1942,
and surreptitiously entered her bedroom, undoubtedly for the purpose of
raping her, as indicated by his previous acts and conduct, instead of merely
shouting for help, she could have been perfectly justified in killing him, as
shown by the authorities cited above..
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 145
According to the facts established by the evidence and found by the learned
trial court in this case, when the deceased sat by the side of defendant and
appellant on the same bench, near the door of the barrio chapel and placed
his hand on the upper portion of her right thigh, without her consent, the
said chapel was lighted with electric lights, and there were already several
people, about ten of them, inside the chapel, including her own father and
the barrio lieutenant and other dignitaries of the organization; and under the
circumstances, there was and there could be no possibility of her being
raped. And when she gave Amado Capina a thrust at the base of the left side
of his neck, inflicting upon him a mortal wound 4 1/2 inches deep, causing
his death a few moments later, the means employed by her in the defense of
her honor was evidently excessive; and under the facts and circumstances of
the case, she cannot be legally declared completely exempt from criminal
liability..
But the fact that defendant and appellant immediately and voluntarily and
unconditionally surrendered to the barrio lieutenant in said chapel, admitting
having stabbed the deceased, immediately after the incident, and agreed to
go to her house shortly thereafter and to remain there subject to the order
of the said barrio lieutenant, an agent of the authorities (United States vs.
Fortaleza, 12 Phil., 472); and the further fact that she had acted in the
immediate vindication of a grave offense committed against her a few
moments before, and upon such provocation as to produce passion and
obfuscation, or temporary loss of reason and self-control, should be
considered as mitigating circumstances in her favor (People vs. Parana, 64
Phil., 331; People vs. Sakam, 61 Phil., 27; United States vs. Arribas, 1 Phil.,
86).
Defendant and appellant further claims that she had not intended to kill the
deceased but merely wanted to punish his offending hand with her knife, as
shown by the fact that she inflicted upon him only one single wound. And
this is another mitigating circumstance which should be considered in her
favor (United States vs. Brobst, 14 Phil., 310; United States vs. Diaz, 15 Phil.,
123).
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
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 146

chapel that fatal night. Avelina is not a criminal by nature. She happened to Ozaeta, Perfecto, and Bengzon, JJ., concur.
kill under the greatest provocation. She is a God-fearing young woman,
typical of our country girls, who still possess the consolation of religious hope
in a world where so many others have hopelessly lost the faith of their elders
and now drifting away they know not where.

The questions raised in the second and third assignments of error appear,
therefore, to be well taken; and so is the first assignment of error to a
certain degree.

In the mind of the court, there is not the least doubt that, in stabbing to
death the deceased Amado Capina, in the manner and form and under the
circumstances above indicated, the defendant and appellant committed the
crime of homicide, with no aggravating circumstance whatsoever, but with at
least three mitigating circumstances of a qualified character to be considered
in her favor; and, in accordance with the provisions of article 69 of the
Revised Penal Code, she is entitled to a reduction by one or two degrees in
the penalty to be imposed upon her. And considering the circumstances of
the instant case, the defendant and appellant should be accorded the most
liberal consideration possible under the law (United States vs. Apego, 23
Phil., 391; United States vs. Rivera, 41 Phil., 472; People vs. Mercado, 43
Phil., 950)..

The law prescribes the penalty of reclusion temporal for the crime of

homicide; and if it should be reduced by two degrees, the penalty to be
imposed in the instant case is that of prision correccional; and pursuant to
the provisions of section 1 of Act No. 4103 of the Philippine Legislature,
known as the Indeterminate Sentence Law, herein defendant and appellant
should be sentenced to an indeterminate penalty ranging from arresto
mayor in its medium degree, to prision correccional in its medium degree.
Consequently, with the modification of judgment appealed from, defendant
and appellant Avelina Jaurigue is hereby sentenced to an indeterminate
penalty ranging from two months and one day of arresto mayor, as
minimum, to two years, four months, and one day of prision correccional, as
maximum, with the accessory penalties prescribed by law, to indemnify the
heirs of the deceased Amado Capina, in the sum of P2,000, and to suffer the
corresponding subsidiary imprisonment, not to exceed 1/3 of the principal
penalty, in case of insolvency, and to pay the costs. Defendant and appellant
should also be given the benefit of 1/2 of her preventive imprisonment, and
the knife marked Exhibit B ordered confiscated. So ordered..
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 147

Criminal Law; Justifying Circumstances; Self-Defense; Fulfillment of Duty;

Self-defense and fulfillment of duty operate on different principles; Requisites
of Fulfillment of Duty and Elements of Self-Defense.—Self-defense and
fulfillment of duty operate on different principles. Self-defense is based on
the principle of self-preservation from mortal harm, while fulfillment of duty
is premised on the due performance of duty. The difference between the two
justifying circumstances is clear, as the requisites of self-defense and
fulfillment of duty are different. The elements of self-defense are as follows:
a) Unlawful Aggression; b) Reasonable necessity of the means employed to
prevent or repel it; c) Lack of sufficient provocation on the part of the person
defending himself. On the other hand, the requisites of fulfillment of duty
are: 1. The accused acted in the performance of a duty or in the lawful
exercise of a right or office; 2. The injury caused or the offense committed
be the necessary consequence of the due performance of duty or the lawful
exercise of such right or office.

Same; Same; Same; Same; A policeman in the performance of duty is

justified in using such force as is reasonably necessary to secure and detain
the offender, overcome his resistance, prevent his escape, recapture him if
he escapes, and protect himself from bodily harm; He is however, never
justified in using unnecessary force or in treating the offender with wanton
violence, or in resorting to dangerous means when the arrest could be
effected otherwise.—A policeman in the performance of duty is justified in
using such force as is reasonably necessary to secure and detain the
offender, overcome his resistance, prevent his escape, recapture him if he
escapes, and protect himself from bodily harm. In case injury or death
results from the policeman’s exercise of such force, the policeman could be
justified in inflicting the injury or causing the death of the offender if the
policeman had used necessary force. Since a policeman’s duty requires him
to overcome the offender, the force exerted by the policeman may therefore
differ from that which ordinarily may be offered in self-defense. However, a
policeman is never justified in using unnecessary force or in treating the
offender with wanton violence, or in resorting to dangerous means when the
arrest could be effected otherwise.

Same; Same; Same; Same; In performance of duty, unlawful aggression

G.R. No. 148431. July 28, 2005.* from the victim is not a requisite.—Unlike in self-defense where unlawful
aggression is an element, in performance of duty, unlawful aggression from
SPO2 RUPERTO CABANLIG, petitioner, vs. SANDIGANBAYAN and the victim is not a requisite. In People v. Delima, a policeman was looking for
OFFICE OF THE SPECIAL PROSECUTOR, respondents. a fugitive who had several days earlier escaped from prison. When the

policeman found the fugitive, the fugitive was armed with a pointed piece of
bamboo in the shape of a lance. The policeman demanded the surrender of
the fugitive. The fugitive lunged at the policeman with his bamboo lance.
The policeman dodged the lance and fired his revolver at the fugitive. The
policeman missed. The fugitive ran away still holding the bamboo lance. The
policeman pursued the fugitive and again fired his revolver, hitting and killing
the fugitive. The Court acquitted the policeman on the ground that the killing
was done in the fulfillment of duty.
Same; Same; Same; Same; While self-defense and performance of duty are
two distinct justifying circumstances, self-defense or defense of a stranger
may still be relevant even if the proper justifying circumstance in a given
case is fulfillment of duty.—While selfdefense and performance of duty are
two distinct justifying circumstances, self-defense or defense of a stranger
may still be relevant even if the proper justifying circumstance in a given
case is fulfillment of duty. For example, a policeman’s use of what appears to
be excessive force could be justified if there was imminent danger to the
policeman’s life or to that of a stranger. If the policeman used force to
protect his life or that of a stranger, then the defense of fulfillment of duty
would be complete, the second requisite being present.
Same; Same; Same; Same; Court has always maintained that the judgment
and discretion of public officers, in the performance of their duties, must be
exercised neither capriciously nor oppressively, but within the limits of the
law.—The Sandiganbayan had very good reasons in steadfastly adhering to
the policy that a law enforcer must first issue a warning before he could use
force against an offender. A law enforcer’s overzealous performance of his
duty could violate the rights of a citizen and worse cost the citizen’s life. We
have always maintained that the judgment and discretion of public officers,
in the performance of their duties, must be exercised neither capriciously nor
oppressively, but within the limits of the law. The issuance of a warning
before a law enforcer could use force would prevent unnecessary bloodshed.
Thus, whenever possible, a law enforcer should employ force only as a last
resort and only after issuing a warning.
Same; Same; Same; Same; In exceptional circumstances such as this case,
where the threat to the life of a law enforcer is already imminent, and there
is no other option but to use force to subdue the offender, the law enforcer’s
failure to issue a warning is excusable.— The duty to issue a warning is not
absolutely mandated at all times and at all cost, to the detriment of the life
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 148
of law enforcers. The directive to issue a warning contemplates a situation
where several options are still available to the law enforcers. In exceptional
circumstances such as this case, where the threat to the life of a law
enforcer is already imminent, and there is no other option but to use force to
subdue the offender, the law enforcer’s failure to issue a warning is
excusable.
PETITION for review on certiorari of the decision and resolution of the
Sandiganbayan.
The facts are stated in the opinion of the Court.
     Fajardo & Associates for petitioner. Cabanlig vs. Sandiganbayan, 464
SCRA 324, G.R. No. 148431 July 28, 2005
CARPIO, J.:
The Case
This petition for review[1] seeks to reverse the Decision[2] of the Fifth Division
of the Sandiganbayan dated 11 May 1999 and Resolution[3] dated 2 May
2001 affirming the conviction of SPO2 Ruperto Cabanlig (Cabanlig) in
Criminal Case No. 19436 for homicide. The Sandiganbayan sentenced
Cabanlig to suffer the indeterminate penalty of four months of arresto
mayor as minimum to two years and four months of prision correctional as
maximum and to pay P50,000 to the heirs of Jimmy Valino (Valino). Cabanlig
shot Valino after Valino grabbed the M16 Armalite of another policeman and
tried to escape from the custody of the police. The Sandiganbayan acquitted
Cabanligs co-accused, SPO1 Carlos Padilla (Padilla), PO2 Meinhart Abesamis
(Abesamis), SPO2 Lucio Mercado (Mercado) and SPO1 Rady Esteban
(Esteban).
The Charge
Cabanlig, Padilla, Abesamis, Mercado and Esteban were charged with murder
in an amended information that reads as follows:
That on or about September 28, 1992, in the Municipality of Penaranda,
Province of Nueva Ecija, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, SPO[2] Ruperto C. Cabanlig,
SPO1 Carlos E. Padilla, PO2 Meinhart C. Abesamis, SPO2 Lucio L. Mercado
and SPO1 Rady S. Esteban, all public officers being members of the

Philippine National Police, conspiring and confederating and mutually helping
one another, with intent to kill, with treachery and evident premeditation,
taking advantage of nighttime and uninhabited place to facilitate the
execution of the crime, with use of firearms and without justifiable cause, did
then and there, wilfully, unlawfully and feloniously attack, assault and shoot
one Jimmy Valino, hitting him several times at the vital parts of his body,
thereby inflicting upon the latter, serious and mortal wounds which were the
direct and immediate cause of his death, which crime was committed by the
accused in relation to their office as members of the Philippine National
Police of Penaranda, Nueva Ecija, the deceased, who was then detained for
robbery and under the custody of the accused, having been killed while
being taken to the place where he allegedly concealed the effects of the
crime, to the damage and prejudice of the heirs of said victim, in such
amount as may be awarded under the provisions of the New Civil Code.
CONTRARY TO LAW.[4]
Arraignment and Plea
On 15 December 1993, the accused police officers Cabanlig, Padilla,
Abesamis, Mercado and Esteban pleaded not guilty.
Version of the Prosecution
On 24 September 1992 a robbery occurred in the Municipality of Penaranda,
Nueva Ecija. Four days later or on 28 September 1992, the investigating
authorities apprehended three suspects: Jordan Magat (Magat), Randy Reyes
(Reyes) and Valino. The police recovered most of the stolen items. However,
a flower vase and a small radio were still missing. Cabanlig asked the three
suspects where these two items were. Reyes replied that the items were at
his house.  one at the back of the head, one at the left side of the chest, and one at the
Cabanlig asked his colleagues, Padilla, Mercado, Abesamis and Esteban, to
accompany him in retrieving the flower vase and radio. Cabanlig then
brought out Reyes and Magat from their cell, intending to bring the two
during the retrieval operation. It was at this point that Valino informed
Cabanlig that he had moved the vase and radio to another location without
the knowledge of his two cohorts. Cabanlig decided instead to bring along
Valino, leaving behind Magat and Reyes.
Around 6:30 p.m., five fully armed policemen in uniform Cabanlig, Padilla,
Mercado, Abesamis and Esteban escorted Valino to Barangay Sinasahan,
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 149
Nueva Ecija to recover the missing flower vase and radio. The policemen and
Valino were aboard a police vehicle, an Isuzu pick-up jeep. The jeep was
built like an ordinary jeepney. The rear end of the jeep had no enclosure. A
metal covering separated the drivers compartment and main body of the
jeep. There was no opening or door between the two compartments of the
jeep. Inside the main body of the jeep, were two long benches, each of
which was located at the left and right side of the jeep.
Cabanlig, Mercado and Esteban were seated with Valino inside the main
body of the jeep. Esteban was right behind Abesamis at the left bench.
Valino, who was not handcuffed, was between Cabanlig and Mercado at the
right bench. Valino was seated at Cabanligs left and at Mercados right.
Mercado was seated nearest to the opening of the rear of the jeep.
Just after the jeep had crossed the Philippine National Railway bridge and
while the jeep was slowly negotiating a bumpy and potholed road, Valino
suddenly grabbed Mercados M16 Armalite and jumped out of the jeep. Valino
was able to grab Mercados M16 Armalite when Mercado scratched his head
and tried to reach his back because some flying insects were pestering
Mercado. Mercado shouted hoy! when Valino suddenly took the M16
Armalite. Cabanlig, who was then facing the rear of the vehicle, saw Valinos
act of taking away the M16 Armalite. Cabanlig acted immediately. Without
issuing any warning of any sort, and with still one foot on the running board,
Cabanlig fired one shot at Valino, and after two to three seconds, Cabanlig
fired four more successive shots. Valino did not fire any shot.
The shooting happened around 7:00 p.m., at dusk or nag-aagaw ang dilim
at liwanag. Cabanlig approached Valinos body to check its pulse. Finding
none, Cabanlig declared Valino dead. Valino sustained three mortal wounds
left lower back. Padilla and Esteban remained with the body. The other three
policemen, including Cabanlig, went to a funeral parlor.
The following morning, 29 September 1992, a certain SPO4 Segismundo
Lacanilao (Lacanilao) of the Cabanatuan Police went to Barangay Sinasahan,
Nueva Ecija to investigate a case. Lacanilao met Mercado who gave him
instructions on how to settle the case that he was handling. During their
conversation, Mercado related that he and his fellow policemen salvaged
(summarily executed) a person the night before. Lacanilao asked who was
salvaged. Mercado answered that it was Jimmy Valino. Mercado then asked

Lacanilao why he was interested in the identity of the person who was
salvaged. Lacanilao then answered that Jimmy Valino was his cousin.
Mercado immediately turned around and left.
Version of the Defense
 Cabanlig admitted shooting Valino. However, Cabanlig justified the shooting
as an act of self-defense and performance of duty. Mercado denied that he
told Lacanilao that he and his co-accused salvaged Valino. Cabanlig,
Mercado, Abesamis, Padilla, and Esteban denied that they conspired to kill
Valino. 
The Sandiganbayans Ruling
The Sandiganbayan acquitted Padilla, Abesamis, Mercado and Esteban as the
court found no evidence that the policemen conspired to kill or summarily
execute Valino. Since Cabanlig admitted shooting Valino, the burden is on
Cabanlig to establish the presence of any circumstance that would relieve
him of responsibility or mitigate the offense committed.
The Sandiganbayan held that Cabanlig could not invoke self-defense or
defense of a stranger. The only defense that Cabanlig could properly invoke
in this case is fulfillment of duty. Cabanlig, however, failed to show that the
shooting of Valino was the necessary consequence of the due performance
of duty. The Sandiganbayan pointed out that while it was the duty of the
policemen to stop the escaping detainee, Cabanlig exceeded the proper
bounds of performing this duty when he shot Valino without warning.
The Sandiganbayan found no circumstance that would qualify the crime to
murder. Thus, the Sandiganbayan convicted Cabanlig only of homicide. The
dispositive portion of the decision reads:
WHEREFORE, premises considered, accused CARLOS ESTOQUE PADILLA,
MEINHART CRUZ ABESAMIS, LUCIO LADIGNON MERCADO and RADY
SALAZAR ESTEBAN are hereby ACQUITTED of the crime charged. Accused
RUPERTO CONCEPCION CABANLIG is found GUILTY beyond reasonable
doubt of the crime of Homicide and is hereby sentenced to suffer the
indeterminate sentence of FOUR (4) MONTHS of arresto mayor, as minimum,
to TWO (2) YEARS and FOUR (4) MONTHS of prision correccional, as
maximum. He is further ordered to pay the heirs of Jimmy Valino the amount
of FIFTY THOUSAND (P50,000.00) PESOS, and the costs.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 150
SO ORDERED.[5]
On motion for reconsideration, Associate Justice Anacleto D. Badoy Jr.
(Associate Justice Badoy) dissented from the decision. Associate Justice
Badoy pointed out that there was imminent danger on the lives of the
policemen when Valino grabbed the infallible Armalite [6] from Mercado and
jumped out from the rear of the jeep. At a distance of only three feet from
Cabanlig, Valino could have sprayed the policemen with bullets. The firing of
a warning shot from Cabanlig was no longer necessary. Associate Justice
Badoy thus argued for Cabanligs acquittal.
In a vote of four to one, the Sandiganbayan affirmed the decision.[7] The
dispositive portion of the Resolution reads:
WHEREFORE, for lack of merit, the motion for reconsideration is hereby
DENIED.[8]
The Issues
Cabanlig raises the following issues in his Memorandum:
WHETHER THE SANDIGANBAYAN ERRED IN RULING THAT THE DEFENSE OF
FULFILLMENT OF DUTY PUT UP BY CABANLIG WAS INCOMPLETE
WHETHER THE SANDIGANBAYAN ERRED IN RULING THAT CABANLIG
COULD NOT INVOKE SELF-DEFENSE/DEFENSE OF STRANGER TO JUSTIFY
HIS ACTIONS
WHETHER THE SANDIGANBAYAN ERRED IN SENTENCING CABANLIG TO
SUFFER IMPRISONMENT AND IN ORDERING HIM TO PAY THE AMOUNT
OF P 50,000 TO THE HEIRS OF VALINO[9] 
The Courts Ruling
The petition has merit. We rule for Cabanligs acquittal.
Applicable Defense is Fulfillment of Duty
We first pass upon the issue of whether Cabanlig can invoke two or more
justifying circumstances. While there is nothing in the law that prevents an
accused from invoking the justifying circumstances or defenses in his favor,
it is still up to the court to determine which justifying circumstance is
applicable to the circumstances of a particular case.

Self-defense and fulfillment of duty operate on different principles. [10] Self-
defense is based on the principle of self-preservation from mortal harm,
while fulfillment of duty is premised on the due performance of duty. The
difference between the two justifying circumstances is clear, as the requisites
of self-defense and fulfillment of duty are different.
 
The elements of self-defense are as follows:
a)      Unlawful Aggression;
b)      Reasonable necessity of the means employed to prevent or repel it;
c)      Lack of sufficient provocation on the part of the person defending
himself.[11]
On the other hand, the requisites of fulfillment of duty are:
1.      The accused acted in the performance of a duty or in the lawful
exercise of a right or office;
2.      The injury caused or the offense committed be the necessary
consequence of the due performance of duty or the lawful exercise of such
right or office.[12]
A policeman in the performance of duty is justified in using such force as is
reasonably necessary to secure and detain the offender, overcome his
resistance, prevent his escape, recapture him if he escapes, and protect
himself from bodily harm.[13] In case injury or death results from the
policemans exercise of such force, the policeman could be justified in
inflicting the injury or causing the death of the offender if the policeman had
used necessary force. Since a policemans duty requires him to overcome the
offender, the force exerted by the policeman may therefore differ from that
which ordinarily may be offered in self-defense.[14] However, a policeman is
never justified in using unnecessary force or in treating the offender with
wanton violence, or in resorting to dangerous means when the arrest could
be affected otherwise.[15]
Unlike in self-defense where unlawful aggression is an element, in
performance of duty, unlawful aggression from the victim is not a requisite.
In People v. Delima,[16] a policeman was looking for a fugitive who had
several days earlier escaped from prison. When the policeman found the
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 151
fugitive, the fugitive was armed with a pointed piece of bamboo in the shape
of a lance. The policeman demanded the surrender of the fugitive. The
fugitive lunged at the policeman with his bamboo lance. The policeman
dodged the lance and fired his revolver at the fugitive. The policeman
missed. The fugitive ran away still holding the bamboo lance. The policeman
pursued the fugitive and again fired his revolver, hitting and killing the
fugitive. The Court acquitted the policeman on the ground that the killing
was done in the fulfillment of duty.
The fugitives unlawful aggression in People v. Delima had already ceased
when the policeman killed him. The fugitive was running away from the
policeman when he was shot. If the policeman were a private person, not in
the performance of duty, there would be no self-defense because there
would be no unlawful aggression on the part of the deceased. [17] It may even
appear that the public officer acting in the fulfillment of duty is the
aggressor, but his aggression is not unlawful, it being necessary to fulfill his
duty.[18]
While self-defense and performance of duty are two distinct justifying
circumstances, self-defense or defense of a stranger may still be relevant
even if the proper justifying circumstance in a given case is fulfillment of
duty. For example, a policemans use of what appears to be excessive force
could be justified if there was imminent danger to the policemans life or to
that of a stranger. If the policeman used force to protect his life or that of a
stranger, then the defense of fulfillment of duty would be complete, the
second requisite being present.
 
In People v. Lagata,[19] a jail guard shot to death a prisoner whom he
thought was attempting to escape. The Court convicted the jail guard of
homicide because the facts showed that the prisoner was not at all trying to
escape. The Court declared that the jail guard could only fire at the prisoner
in self-defense or if absolutely necessary to avoid the prisoners escape .
In this case, Cabanlig, Padilla, Abesamis, Mercado and Esteban were in the
performance of duty as policemen when they escorted Valino, an arrested
robber, to retrieve some stolen items. We uphold the finding of the
Sandiganbayan that there is no evidence that the policemen conspired to kill
or summarily execute Valino. In fact, it was not Valino who was supposed to
go with the policemen in the retrieval operations but his two other cohorts,

Magat and Reyes. Had the policemen staged the escape to justify the killing
of Valino, the M16 Armalite taken by Valino would not have been loaded with
bullets.[20] Moreover, the alleged summary execution of Valino must be based
on evidence and not on hearsay.
Undoubtedly, the policemen were in the legitimate performance of their duty
when Cabanlig shot Valino. Thus, fulfillment of duty is the justifying
circumstance that is applicable to this case. To determine if this defense is
complete, we have to examine if Cabanlig used necessary force to prevent
Valino from escaping and in protecting himself and his co-accused policemen
from imminent danger.
Fulfillment of Duty was Complete, Killing was Justified
The Sandiganbayan convicted Cabanlig because his defense of fulfillment of
duty was found to be incomplete. The Sandiganbayan believed that Cabanlig
exceeded the fulfillment of his duty when he immediately shot Valino without
issuing a warning so that the latter would stop.[21]
We disagree with the Sandiganbayan.
Certainly, an M16 Armalite is a far more powerful and deadly weapon than
the bamboo lance that the fugitive had run away with in People v. Delima.
The policeman in People v. Delima was held to have been justified in
shooting to death the escaping fugitive because the policeman was merely
performing his duty.
In this case, Valino was committing an offense in the presence of the
policemen when Valino grabbed the M16 Armalite from Mercado and jumped
from the jeep to escape. The policemen would have been justified in
shooting Valino if the use of force was absolutely necessary to prevent his
escape.[22] But Valino was not only an escaping detainee. Valino had also
stolen the M16 Armalite of a policeman. The policemen had the duty not only
to recapture Valino but also to recover the loose firearm. By grabbing
Mercados M16 Armalite, which is a formidable firearm, Valino had placed the
lives of the policemen in grave danger.
Had Cabanlig failed to shoot Valino immediately, the policemen would have
been sitting ducks. All of the policemen were still inside the jeep when Valino
suddenly grabbed the M16 Armalite. Cabanlig, Mercado and Esteban were
hemmed in inside the main body of the jeep, in the direct line of fire had
Valino used the M16 Armalite. There would have been no way for Cabanlig,
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 152
Mercado and Esteban to secure their safety, as there were no doors on the
sides of the jeep. The only way out of the jeep was from its rear from which
Valino had jumped. Abesamis and Padilla who were in the drivers
compartment were not aware that Valino had grabbed Mercados M16
Armalite. Abesamis and Padilla would have been unprepared for Valinos
attack.
By suddenly grabbing the M16 Armalite from his unsuspecting police guard,
Valino certainly did not intend merely to escape and run away as far and fast
as possible from the policemen. Valino did not have to grab the M16 Armalite
if his sole intention was only to flee from the policemen. If he had no
intention to engage the policemen in a firefight, Valino could simply have
jumped from the jeep without grabbing the M16 Armalite. Valinos chances of
escaping unhurt would have been far better had he not grabbed the M16
Armalite which only provoked the policemen to recapture him and recover
the M16 Armalite with greater vigor. Valinos act of grabbing the M16
Armalite clearly showed a hostile intention and even constituted unlawful
aggression.
Facing imminent danger, the policemen had to act swiftly. Time was of the
essence. It would have been foolhardy for the policemen to assume that
Valino grabbed the M16 Armalite merely as a souvenir of a successful
escape. As we have pointed out in Pomoy v. People[23]:
Again, it was in the lawful performance of his duty as a law enforcer that
petitioner tried to defend his possession of the weapon when the victim
suddenly tried to remove it from his holster. As an enforcer of the law,
petitioner was duty-bound to prevent the snatching of his service weapon by
anyone, especially by a detained person in his custody. Such weapon was
likely to be used to facilitate escape and to kill or maim persons in the
vicinity, including petitioner himself.
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 153

The Sandiganbayan, however, ruled that despite Valinos possession of a effective at a range of 200 meters[29] but its maximum effective range could
deadly firearm, Cabanlig had no right to shoot Valino without giving Valino extend as far as 400 meters.[30] As a high velocity firearm, the M16 Armalite
the opportunity to surrender. The Sandiganbayan pointed out that under the could be fired at close range rapidly or with much volume of fire. [31] These
General Rules of Engagement, the use of force should be applied only as a features make the M16 Armalite and its variants well suited for urban and
last resort when all other peaceful and non-violent means have been jungle warfare.[32]
exhausted. The Sandiganbayan held that only such necessary and
The M16 Armalite whether on automatic or semiautomatic setting is a lethal
reasonable force should be applied as would be sufficient to conduct self-
weapon. This high-powered firearm was in the hands of an escaping
defense of a stranger, to subdue the clear and imminent danger posed, or to
detainee, who had sprung a surprise on his police escorts bottled inside the
overcome resistance put up by an offender.
jeep. A warning from the policemen would have been pointless and would
The Sandiganbayan had very good reasons in steadfastly adhering to the have cost them their lives.
policy that a law enforcer must first issue a warning before he could use
For what is the purpose of a warning? A warning is issued when policemen
force against an offender. A law enforcers overzealous performance of his
have to identify themselves as such and to give opportunity to an offender to
duty could violate the rights of a citizen and worse cost the citizens life. We
surrender. A warning in this case was dispensable. Valino knew that he was
have always maintained that the judgment and discretion of public officers,
in the custody of policemen. Valino was also very well aware that even the
in the performance of their duties, must be exercised neither capriciously nor
mere act of escaping could injure or kill him. The policemen were fully armed
oppressively, but within the limits of the law. [24] The issuance of a warning
and they could use force to recapture him. By grabbing the M16 Armalite of
before a law enforcer could use force would prevent unnecessary bloodshed.
his police escort, Valino assumed the consequences of his brazen and
Thus, whenever possible, a law enforcer should employ force only as a last
determined act. Surrendering was clearly far from Valinos mind.
resort and only after issuing a warning.
At any rate, Valino was amply warned. Mercado shouted hoy when Valino
However, the duty to issue a warning is not absolutely mandated at all times
grabbed the M16 Armalite. Although Cabanlig admitted that he did not hear
and at all cost, to the detriment of the life of law enforcers. The directive to
Mercado shout hoy, Mercados shout should have served as a warning to
issue a warning contemplates a situation where several options are still
Valino. The verbal warning need not come from Cabanlig himself.
available to the law enforcers. In exceptional circumstances such as this
case, where the threat to the life of a law enforcer is already imminent, and The records also show that Cabanlig first fired one shot. After a few seconds,
there is no other option but to use force to subdue the offender, the law Cabanlig fired four more shots. Cabanlig had to shoot Valino because Valino
enforcers failure to issue a warning is excusable. at one point was facing the police officers. The exigency of the situation
warranted a quick response from the policemen.
In this case, the embattled policemen did not have the luxury of time.
Neither did they have much choice. Cabanligs shooting of Valino was an According to the Sandiganbayan, Valino was not turning around to shoot
immediate and spontaneous reaction to imminent danger. The weapon because two of the three gunshot wounds were on Valinos back. Indeed,
grabbed by Valino was not just any firearm. It was an M16 Armalite. two of the three gunshot wounds were on Valinos back: one at the back of
the head and the other at the left lower back. The Sandiganbayan, however,
 The M16 Armalite is an assault rifle adopted by the United Sates (US) Army
overlooked the location of the third gunshot wound. It was three inches
as a standard weapon in 1967 during the Vietnam War.[25] The M16 Armalite
below the left clavicle or on the left top most part of the chest area based on
is still a general-issue rifle with the US Armed Forces and US law
the Medico Legal Sketch showing the entrances and exits of the three
enforcement agencies.[26] The M16 Armalite has both semiautomatic and
gunshot wounds.[33]
automatic capabilities.[27] It is 39 inches long, has a 30-round magazine and
fires high-velocity .223-inch (5.56-mm) bullets.[28] The M16 Armalite is most

The Autopsy Report[34] confirms the location of the gunshot wounds, as
follows:
GUNSHOT WOUNDS modified by embalming.
1.      ENTRANCE ovaloid, 1.6 x 1.5 cms; with area of tattooing around the
entrance, 4.0 x 3.0 cms.; located at the right postauricular region, 5.5 cms.
behind and 1.5 cms. above the right external auditory meatus, directed
forward downward fracturing the occipital bone, lacerating the right occipital
portion of the brain and fracturing the right cheek bone and making an EXIT
wound, 1.5 x 2.0 cms. located on right cheek, 4.0 cms. below and 3.0 cms..
in front of right external auditory meatus.
2.      ENTRANCE ovaloid, 0.7 x 0.5 cms., located at the left chest; 6.5 cms.
from the anterior median line, 136.5 cms. from the left heel directed
backward, downward and to the right, involving soft tissues, fracturing the
3rd rib, left, lacerating the left upper lobe and the right lower lobe and finally
making an EXIT wound at the back, right side, 1.4 x 0.8 cms., 19.0 cms.
from the posterior median line and 132.0 cms. from the right heel and
grazing the medial aspect of the right arm.
3.      ENTRANCE ovaloid, 0.6 x 0.5 located at the back, left side, 9.0 cms.
from the posterior median line; 119.5 cms. from the left heel; directed
forward, downward involving the soft tissues, lacerating the liver; and bullet
was recovered on the right anterior chest wall, 9.0 cms. form the anterior
median line, 112.0 cms. from the right heel.
The Necropsy Report[35] also reveals the following:
1. Gunshot Wound, entrance, 0.5 cm X 1.5 cms in size, located at the left
side of the back of the head. The left parietal bone is fractured. The left
temporal bone is also fractured. A wound of exit measuring 2 cms X 3 cms in
size is located at the left temporal aspect of the head.
2. Gunshot [W]ound, entrance, 0.5 cm in diameter, located at the left side of
the chest  about three inches below the left clavicle. The wound is directed
medially and made an exit wound at the right axilla measuring 2 X 2 cms in
size. 
3. Gunshot Wound, entrance, 0.5 cm in diameter located at the left lower
back above the left lumbar. The left lung is collapsed and the liver is
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 154
lacerated. Particles of lead [were] recovered in the liver tissues. No wound of
exit.
Cause of Death:
Cerebral Hemorrhage Secondary To Gunshot Wound In The Head
The doctors who testified on the Autopsy[36] and Necropsy[37] Reports
admitted that they could not determine which of the three gunshot wounds
was first inflicted. However, we cannot disregard the significance of the
gunshot wound on Valinos chest. Valino could not have been hit on the chest
if he were not at one point facing the policemen.
If the first shot were on the back of Valinos head, Valino would have
immediately fallen to the ground as the bullet from Cabanligs M16 Armalite
almost shattered Valinos skull. It would have been impossible for Valino to
still turn and face the policemen in such a way that Cabanlig could still shoot
Valino on the chest if the first shot was on the back of Valinos head.
The most probable and logical scenario: Valino was somewhat facing the
policemen when he was shot, hence, the entry wound on Valinos chest. On
being hit, Valino could have turned to his left almost falling, when two more
bullets felled Valino. The two bullets then hit Valino on his lower left back
and on the left side of the back of his head, in what sequence, we could not
speculate on. At the very least, the gunshot wound on Valinos chest should
have raised doubt in Cabanligs favor.
Cabanlig is thus not guilty of homicide. At most, Cabanlig, Padilla, Abesamis,
Mercado and Esteban are guilty only of gross negligence. The policemen
transported Valino, an arrested robber, to a retrieval operation without
handcuffing Valino. That no handcuffs were available in the police precinct is
a very flimsy excuse. The policemen should have tightly bound Valinos hands
with rope or some other sturdy material. Valinos cooperative demeanor
should not have lulled the policemen to complacency. As it turned out, Valino
was merely keeping up the appearance of good behavior as a prelude to a
planned escape. We therefore recommend the filing of an administrative
case against Cabanlig, Padilla, Abesamis, Mercado and Esteban for gross
negligence.
 WHEREFORE, we REVERSE the decision of the Sandiganbayan in Criminal
Case No. 19436 convicting accused RUPERTO CONCEPCION CABANLIG of
the crime of homicide. We ACQUIT RUPERTO CONCEPCION CABANLIG of
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 155

the crime of homicide and ORDER his immediate release from prison, unless G.R. No. 125059. March 17, 2000.*
there are other lawful grounds to hold him. We DIRECT the Director of
Prisons to report to this Court compliance within five (5) days from receipt of FRANCISCO T. SYCIP, JR., petitioner, vs. COURT OF APPEALS and
this Decision. No costs. PEOPLE OF THE PHILIPPINES, respondents.

SO ORDERED.
Criminal Law; Bouncing Checks Law; Elements under which the offense is
committed.—Under the provisions of the Bouncing Checks Law (B.P. No. 22),
an offense is committed when the following elements are present: (1) the
making, drawing and issuance of any check to apply for account or for value;
(2) the knowledge of the maker, drawer, or issuer that at the time of issue
he does not have sufficient funds in or credit with the drawee bank for the
payment of such check in full upon its presentment; and (3) the subsequent
dishonor of the check by the drawee bank for insufficiency of funds or credit
or dishonor for the same reason had not the drawer, without any valid
cause, ordered the bank to stop payment.

Same; Same; Same; Presumption of knowledge of the insufficiency of funds

from the dishonor of the checks cannot hold if there is evidence to the
contrary.—To begin with, the second element involves knowledge on the
part of the issuer at the time of the check’s issuance that he did not have
enough funds or credit in the bank for payment thereof upon its
presentment. B.P. No. 22 creates a presumption juris tantum that the second
element prima facie exists when the first and third elements of the offense
are present. But such evidence may be rebutted. If not rebutted or
contradicted, it will suffice to sustain a judgment in favor of the issue, which
it supports. As pointed out by the Solicitor General, such knowledge of the
insufficiency of petitioner’s funds “is legally presumed from the dishonor of
his checks for insufficiency of funds.” But such presumption cannot hold if
there is evidence to the contrary. In this case, we find that the other party
has presented evidence to contradict said presumption.

Same; Same; Same; The exercise of a statutory right to suspend installment

payments is a valid defense against the purported violations of B.P. Blg. 22.
—Note that we have upheld a buyer’s reliance on Section 23 of P.D. 957 to
suspend payments until such time as the owner or developer had fulfilled its
obligations to the buyer. This exercise of a statutory right to suspend
installment payments, is to our mind, a valid defense against the purported
violations of B.P. Blg. 22 that petitioner is charged with.

PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
     Delos Angeles, Aguirre, Olaguer & Sto. Domingo for petitioner.
The Solicitor General for the respondents.
DECISION
QUISUMBING, J.:
For review on certiorari is the decision of the Court of Appeals, dated
February 29, 1996, in CA-G.R. CR No. 15993, which affirmed the judgment
of the Regional Trial Court of Quezon City, Branch 95, in Criminal Cases Nos.
Q-91-25910 to 15, finding petitioner guilty beyond reasonable doubt of
violating B.P. Blg. 22, the Bouncing Checks Law.
The facts in this case, as culled from the records, are as follows:
On August 24, 1989, Francisco T. Sycip agreed to buy, on installment, from
Francel Realty Corporation (FRC), a townhouse unit in the latter's project at
Bacoor, Cavite.
Upon execution of the contract to sell, Sycip, as required, issued to FRC,
forty-eight (48) postdated checks, each in the amount of P9,304.00, covering
48 monthly installments.
After moving in his unit, Sycip complained to FRC regarding defects in the
unit and incomplete features of the townhouse project. FRC ignored the
complaint. Dissatisfied, Sycip served on FRC two (2) notarial notices to the
effect that he was suspending his installment payments on the unit pending
compliance with the project plans and specifications, as approved by the
Housing and Land Use Regulatory Board (HLURB). Sycip and 12 out of 14
unit buyers then filed a complaint with the HLURB. The complaint was
dismissed as to the defects, but FRC was ordered by the HLURB to finish all
incomplete features of its townhouse project. Sycip appealed the dismissal of
the complaint as to the alleged defects.
Notwithstanding the notarial notices, FRC continued to present for
encashment Sycip's postdated checks in its possession. Sycip sent "stop
payment orders" to the bank. When FRC continued to present the other
postdated checks to the bank as the due date fell, the bank advised Sycip to
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 156
close his checking account to avoid paying bank charges every time he made
a "stop payment" order on the forthcoming checks. Due to the closure of
petitioner's checking account, the drawee bank dishonored six postdated
checks. FRC filed a complaint against petitioner for violations of B.P. Blg. 22
involving said dishonored checks.
On November 8, 1991, the Quezon City Prosecutor's Office filed with the RTC
of Quezon City six Informations docketed as Criminal Cases No. Q-91-25910
to Q-91-25915, charging petitioner for violation of B.P. Blg. 22.
The accusative portion of the Information in Criminal Case No. Q-91 -25910
reads:
"That on or about the 30th day of October 1990 in Quezon City, Philippines
and within the jurisdiction of this Honorable Court, the said accused, did then
and there, willfully, unlawfully and feloniously make, draw and issue in favor
of Francel Realty Corporation a check 813514 drawn against Citibank, a duly
established domestic banking institution in the amount of P9,304.00
Philippine Currency dated/postdated October 30, 1990 in payment of an
obligation, knowing fully well at the time of issue that she/he did not have
any funds in the drawee bank of (sic) the payment of such check; that upon
presentation of said check to said bank for payment, the same was
dishonored for the reason that the drawer thereof, accused Francisco T.
Sycip, Jr. did not have any funds therein, and despite notice of dishonor
thereof, accused failed and refused and still fails and refused (sic) to redeem
or make good said check, to the damage and prejudice of the said Francel
Realty Corporation in the amount aforementioned and in such other amount
as may be awarded under the provisions of the Civil Code.
"CONTRARY TO LAW."[1]
Criminal Cases No. Q-91-25911 to Q-91-25915, with Informations similarly
worded as in Criminal Case No. Q-91-25910, except for the dates, and check
numbers[2] were consolidated and jointly tried.
When arraigned, petitioner pleaded "Not Guilty" to each of the charges. Trial
then proceeded.
The prosecution's case, as summarized by the trial court and adopted by the
appellate court, is as follows:

"The prosecution evidence established that on or about August 24, 1989, at
the office of the private complainant Francel Realty Corporation (a private
domestic corporation engaged in the real estate business) at 822 Quezon
Avenue, QC, accused Francisco Sycip, Jr. drew, issued, and delivered to
private complainant Francel Realty Corporation (FRC hereinafter) six checks
(among a number of other checks), each for P9,304.00 and drawn pay to the
order of FRC and against Francisco's account no. 845515 with Citibank, to
wit: Check No. 813514 dated October 30, 1990 (Exh. C), Check No. 813515
dated November 30, 1990 (Exh. D), Check No. 813518 dated February
28,1991 (Exh. E), Check No. 813516 dated December 30, 1990 (Exh. F),
Check No. 813517 dated January 30, 1991 (Exh. G) and Check No. 813519
dated March 30, 1991 (Exh. H), as and in partial payment of the unpaid
balance of the purchase price of the house and lot subject of the written
contract executed and entered into by and between FRC as seller and
Francisco as buyer on said date of August 24, 1989 (Exh. B, also Exh. 1).
The total stipulated purchase price for the house and lot was P451,700.00, of
which Francisco paid FRC in the sum of P135,000.00 as down payment, with
Francisco agreeing and committing himself to pay the balance of
P316,000.00 in 48 equal monthly installments of P9,304.00 (which sum
already includes interest on successive monthly balance) effective September
30, 1989 and on the 30th day of each month thereafter until the stipulated
purchase price is paid in full. The said six Citibank checks, Exhs. C thru H, as
earlier indicated were drawn, issued, and delivered by Francisco in favor of
FRC as and in partial payment of the said 48 equal monthly installments
under their said contract (Exh. B, also Exh. 1). Sometime in September 1989,
the Building Official's certificate of occupancy for the subject house -a
residential townhouse -was issued (Exh. N) and Francisco took possession
and started in the use and occupancy of the subject house and lot.
"When the subject six checks, Exhs. C thru H, were presented to the Citibank
for payment on their respective due dates, they were all returned to FRC
dishonored and unpaid for the reason: account closed as indicated in the
drawee bank's stamped notations on the face and back of each check; in
fact, as indicated in the corresponding record of Francisco's account no.
815515 with Citibank, said account already had a zero balance as early as
September 14, 1990 (Exh. 1-5). Notwithstanding the fact that FRC, first thru
its executive vice president and project manager and thereafter thru its
counsel, had notified Francisco, orally and in writing, of the checks' dishonor
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 157
and demanded from him the payment of the amount thereof, still Francisco
did not payor make good any of the checks (Exhs. I thru K)..." [3]
The case for the defense, as summarized also by the trial court and adopted
by the Court of Appeals, is as follows:
"The defense evidence in sum is to the effect that after taking possession
and starting in the use and occupancy of the subject townhouse unit,
Francisco became aware of its various construction defects; that he called
the attention of FRC, thru its project manager, requesting that appropriate
measures be forthwith instituted, but despite his several requests, FRC did
not acknowledge, much less attend to them; that Francisco thus mailed to
FRC a verified letter dated June 6, 1990 (Exh. 2) in sum giving notice that
effective June 1990, he will cease and desist 'from paying my monthly
amortization of NINE THOUSAND THREE HUNDRED FOUR (P9,304.00)
PESOS towards the settlement of my obligation concerning my purchase of
Unit No. 14 of FRC Townhomes referred to above, unless and until your
Office satisfactorily complete(s) the construction, renovation and/or repair of
my townhouses (sic) unit referred to above and that should FRC 'persist in
ignoring my aforesaid requests, I shall, after five (5) days from your receipt
of this Verified Notice, forthwith petition the [HLURB] for Declaratory Relief
and Consignation to grant me provisional relief from my obligation to pay my
monthly amortization to your good Office and allow me to deposit said
amortizations with [HLURB] pending your completion of FRC Townhomes
Unit in question'; that Francisco thru counsel wrote FRC, its president, and its
counsel notices/letters in sum to the effect that Francisco and all other
complainants in the [HLURB] case against FRC shall cease and desist from
paying their monthly amortizations unless and until FRC satisfactorily
completes the construction of their units in accordance with the plans and
specifications thereof as approved by the [HLURB] and as warranted by the
FRC in their contracts and that the dishonor of the subject checks was a
natural consequence of such suspension of payments, and also advising FRC
not to encash or deposit all other postdated checks issued by Francisco and
the other complainants and still in FRC's possession (Exhs. 3 thru 5); that
Francisco and the other complainants filed the [HLURB] case against FRC
and later on a decision was handed down therein and the same is pending
appeal with the Board (Exhs. 6, 7, & 12 thru 17, also Exh. 8); that as of the
time of presentation of the subject checks for payment by the drawee bank,
Francisco had at least P150,000.00 cash or credit with Citibank (Exhs. 10 &
11) and, that Francisco closed his account no. 845515 with Citibank

conformably with the bank's customer service officer's advice to close his
said account instead of making a stop-payment order for each of his more
than 30 post-dated checks still in FRC's possession at the time, so as to avoid
the P600.00-penalty imposed by the bank for every check subject of a stop-
payment order."[4]
On March 11, 1994, the trial court found petitioner guilty of violating Section
1 of B.P. Blg. 22 in each of the six cases, disposing as follows:
"WHEREFORE, in each of Crim. Cases Nos. Q-91-25910, Q-91-25911, Q-91-
25912, Q-91-25913, Q-91-25914 and Q-91-25915, the Court finds accused
Francisco T. Sycip, Jr. guilty beyond reasonable doubt of a violation of Sec. 1
of Batas Pambansa Blg. 22 and, accordingly, he is hereby sentenced in and
for each case to suffer imprisonment of thirty (30) days and pay the costs.
Further, the accused is hereby ordered to pay the offended party, Francel
Realty Corporation, as and for actual damages, the total sum of fifty-five
thousand eight hundred twenty four pesos (P55,824.00) with interest
thereon at the legal rate from date of commencement of these actions, that
is, November 8, 1991, until full payment thereof.
"SO ORDERED."[5]
Dissatisfied, Sycip appealed the decision to the Court of Appeals. His appeal
was docketed as CA-G.R. CR No. 15993. But on February 29, 1996, the
appellate court ruled:
"On the basis of the submission of the People, We find and so hold that
appellant has no basis to rely on the provision of PD 957 to justify the non-
payment of his obligation, the closure of his checking account and the
notices sent by him to private complainant that he will stop paying his
monthly amortizations."[6]
Petitioner filed a motion for reconsideration on March 18, 1996, but it was
denied per Resolution dated April 22, 1996.
Hence, the instant petition anchored on the following assignment of errors:
I
"THE APPELLATE COURT ERRED IN AFFIRMING THE DECISION OF THE
LOWER COURT FINDING THAT THE ACCUSED-APPELLANT DID NOT HAVE
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 158
ANY JUSTIFIABLE CAUSE TO STOP OR OTHERWISE PREVENT THE PAYMENT
OF THE SUBJECT CHECKS BY THE DRAWEE BANK.
II
"THE LOWER COURT ERRED IN FINDING THAT THE ACCUSED-APPELLANT
MUST BE DEEMED TO HAVE WAIVED HIS RIGHT TO COMPLAIN AGAINST
THE DEVELOPMENT OF THE TOWNHOUSE UNIT AND THE TOWNHOUSE
PROJECT.
III
"THE APPELLATE COURT ERRED IN AFFIRMING THE DECISION OF THE
LOWER COURT THAT THE ACCUSED-APPELLANT DID NOT HAVE
SUFFICIENT FUNDS WITH THE DRAWEE BANK TO COVER THE SUBJECT
CHECKS UPON PRESENTMENT FOR PAYMENT THEREOF.
IV
"THE APPELLATE COURT ERRED IN AFFIRMING THE DECISION OF THE
LOWER COURT CONVICTING THE ACCUSED-APPELLANT AND AWARDING
DAMAGES IN FAVOR OF PRIVATE COMPLAINANT."[7]
The principal issue before us is whether or not the Court of Appeals erred in
affirming the conviction of petitioner for violation of the Bouncing Checks
Law.
Petitioner argues that the court a quo  erred when it affirmed his conviction
for violation of B.P. Blg. 22, considering that he had cause to stop payment
of the checks issued to respondent. Petitioner insists that under P.D. No.
957, the buyer of a townhouse unit has the right to suspend his amortization
payments, should the subdivision or condominium developer fail to develop
or complete the project in accordance with duly-approved plans and
specifications. Given the findings of the HLURB that certain aspects of private
complainant's townhouse project were incomplete and undeveloped, the
exercise of his right to suspend payments should not render him liable under
B.P. Blg. 22.
The Solicitor General argues that since what petitioner was charged with
were violations of B.P. Blg. 22, the intent and circumstances surrounding the
issuance of a worthless check are immaterial. [8] The gravamen of the offense
charged is the act itself of making and issuing a worthless check or one that

is dishonored upon its presentment for payment. Mere issuing of a bad check
is malum prohibitum,  pernicious and inimical to public welfare. In his view,
P.D. No. 957 does not provide petitioner a sufficient defense against the
charges against him.
Under the provisions of the Bouncing Checks Law (B.P. No. 22), [9] an offense
is committed when the following elements are present:
(1) the making, drawing and issuance of any check to apply for account or
for value;
(2) the knowledge of the maker, drawer, or issuer that at the time of issue
he does not have sufficient funds in or credit with the drawee bank for the
payment of such check in full upon its presentment; and
(3) the subsequent dishonor of the check by the drawee bank for
insufficiency of funds or credit or dishonor for the same reason had not the
drawer, without any valid cause, ordered the bank to stop payment.[10]
In this case, we find that although the first element of the offense exists, the
other elements have not been established beyond reasonable doubt.
To begin with, the second element involves knowledge on the part of the
issuer at the time of the check's issuance that he did not have enough funds
or credit in the bank for payment thereof upon its presentment. B.P. No. 22
creates a presumption juris tantum  that the second element prima
facie  exists when the first and third elements of the offense are present.
[11]
 But such evidence may be rebutted. If not rebutted or contradicted, it will
suffice to sustain a judgment in favor of the issue, which it supports. [12] As
pointed out by the Solicitor General, such knowledge of the insufficiency of
petitioner's funds "is legally presumed from the dishonor of his checks for
insufficiency of funds."[13] But such presumption cannot hold if there is
evidence to the contrary. In this case, we find that the other party has
presented evidence to contradict said presumption. Hence, the prosecution is
duty bound to prove every element of the offense charged, and not merely
rely on a rebuttable presumption.
Admittedly, what are involved here are postdated checks. Postdating simply
means that on the date indicated on its face, the check would be properly
funded, not that the checks should be deemed as issued only then. [14] The
checks in this case were issued at the time of the signing of the Contract to
Sell in August 1989. But we find from the records no showing that the time
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 159
said checks were issued, petitioner had knowledge that his deposit or credit
in the bank would be insufficient to cover them when presented for
encashment.[15] On the contrary, there is testimony by petitioner that at the
time of presentation of the checks, he had P150,000.00 cash or credit with
Citibank.
As the evidence for the defense showed, the closure of petitioner's Account
No. 845515 with Citibank was not for insufficiency of funds. It was made
upon the advice of the drawee bank, to avoid payment of hefty bank charges
each time petitioner issued a "stop payment" order to prevent encashment of
postdated checks in private respondent's possession.[16] Said evidence
contradicts the prima facie  presumption of knowledge of insufficiency of
funds. But it establishes petitioner's state of mind at the time said checks
were issued on August 24, 1989. Petitioner definitely had no knowledge that
his funds or credit would be insufficient when the checks would be presented
for encashment. He could not have foreseen that he would be advised by his
own bank in the future, to close his account to avoid paying the hefty banks
charges that came with each "stop payment" order issued to prevent private
respondent from encashing the 30 or so checks in its possession. What the
prosecution has established is the closure of petitioner's checking account.
But this does not suffice to prove the second element of the offense under
B.P. Blg. 22, which explicitly requires "evidence of knowledge of insufficient
funds" by the accused at the time the check or checks are presented for
encashment.
To rely on the presumption created by B.P. No. 22 as the prosecution did in
this case, would be to misconstrue the import of requirements for conviction
under the law. It must be stressed that every element of the offense must be
proved beyond reasonable doubt, never presumed. Furthermore, penal
statutes are strictly construed against the State and liberally in favor of the
accused. Under the Bouncing Checks Law, the punishable act must come
clearly within both the spirit and letter of the statute. [17]
While B.P. Blg. 22 was enacted to safeguard the interest of the banking
system,[18] it is difficult to see how conviction of the accused in this case will
protect the sanctity of the financial system. Moreover, protection must also
be afforded the interest of townhouse buyers under P.D. No. 957.[19] A
statute must be construed in relation to other laws so as to carry out the
legitimate ends and purposes intended by the legislature. [20] Courts will not
strictly follow the letter of one statute when it leads away from the true

intent of legislature and when ends are inconsistent with the general purpose
of the act.[21] More so, when it will mean the contravention of another valid
statute. Both laws have to be reconciled and given due effect.
Note that we have upheld a buyer's reliance on Section 23 of P.D. 957 to
suspend payments until such time as the owner or developer had fulfilled its
obligations to the buyer.[22] This exercise of a statutory right to suspend
installment payments, is to our mind, a valid defense against the purported
violations of B.P. Blg. 22 that petitioner is charged with.
Given the findings of the HLURB as to incomplete features in the
construction of petitioner's and other units of the subject condominium
bought on installment from FRC, we are of the view that petitioner had a
valid cause to order his bank to stop payment. To say the least, the third
element of "subsequent dishonor of the check... without valid cause" appears
to us not established by the prosecution. As already stated, the prosecution
tried to establish the crime on a prima facie  presumption in B.P. Blg. 22.
Here that presumption is unavailing, in the presence of a valid cause to stop
payment, thereby negating the third element of the crime.
Offenses punished by a special law, like the Bouncing Checks Law, are not
subject to the Revised Penal Code, but the Code is supplementary to such a
law.[23] We find nothing in the text of B.P. Blg. 22, which would prevent the
Revised Penal Code from supplementing it. Following Article 11 (5) [24] of the
Revised Penal Code, petitioner's exercise of a right of the buyer under Article
23 of P.D. No. 957 is a valid defense to the charges against him.
WHEREFORE, the instant petition is GRANTED. Petitioner Francisco T. Sycip,
Jr., is ACQUITTED of the charges against him under Batas Pambansa Blg. 22,
for lack of sufficient evidence to prove the offenses charged beyond
reasonable doubt. No pronouncement as to costs.
SO ORDERED.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 160
G.R. No. 131117. June 15, 2004.*
PEOPLE OF THE PHILIPPINES, appellee, vs. NELSON CARIÑO,
DOMINGO BANHAON, LUIS CORCOLON, ROGELIO “BOY”
CORCOLON, JOSELITO “LITO” CALONG-CALONG and “BOY PANSIT,”
accused. DOMINGO BANHAON, LUIS CORCOLON, ROGELIO “BOY”
CORCOLON, and JOSELITO “LITO” CALONG-CALONG, appellants.
Criminal Law; Murder; Evidence; Appeals; Findings of a trial court on the
credibility of witnesses deserve great weight.—Well-settled is the rule that
the findings of a trial court on the credibility of witnesses deserve great
weight, as the trial judge has a clear advantage over the appellate
magistrate in appreciating testimonial evidence. The trial judge is in the best
position to assess the credibility of the witness as he had the unique
opportunity to observe the witness firsthand and note his demeanor, conduct
and attitude under grueling examination. Absent any showing that the trial
court’s calibration of credibility was flawed, we are bound by its assessment.
Same; Same; Same; Denials; Positive identification where categorical and
consistent and without any showing of ill motive on the part of the
eyewitness testifying on the matter prevails over a denial which, if not
substantiated by clear and convincing evidence is negative and self-serving
evidence undeserving of weight in law.—The denial of the appellants of the
crime charged cannot prevail over the positive declarations of prosecution
witnesses Edwin Botero and Valentin Velecina. The defense of alibi is
inherently weak and crumbles in the light of positive declarations of truthful
witnesses, who testified on affirmative matters that the appellants were at
the scene of the incident and were among the victim’s assailants. Positive
identification where categorical and consistent and without any showing of ill
motive on the part of the eyewitness testifying on the matter prevails over a
denial which, if not substantiated by clear and convincing evidence is
negative and self-serving evidence undeserving of weight in law.
Same; Same; Same; Witnesses; Different people react differently to an
unusual event; There is no standard behavior when confronted with a
strange, startling or frightful occurrence.—The failure of Edwin Botero and
Valentin Velecina to report the crime immediately after the commission
thereof did not diminish their credibility. It should be remembered that
different people react differently to an unusual event. There is no standard
behavior when confronted with a strange, startling or frightful occurrence.
Fear has been known to render people immobile and helpless particularly in

life and death situations. Any person faced with such an overwhelming
situation would sufficiently be cowed by fear or at least compelled to act in a
manner aimed at self-preservation. Witnesses may keep silent for a time
rather than risk their lives.
Same; Same; Same; Same; Relationship, by itself, does not give rise to any
presumption of bias or ulterior motive, nor does it impair the credibility of
witnesses or tarnish their testimonies.—Neither did Valentin Velecina’s
relationship with Ruben Velecina render his testimony biased. Relationship,
by itself, does not give rise to any presumption of bias or ulterior motive, nor
does it impair the credibility of witnesses or tarnish their testimonies. The
relationship of a witness to the victim would even make his testimony more
credible, it being unnatural for a relative who is interested in vindicating the
crime charged and prosecute another person other than the real culprit.
Relatives of victims of crimes have a natural knack for remembering the
faces of the assailants more than anybody else, and would be concerned
with obtaining justice for the victim by having the felon brought to justice
and meted the proper penalty. In the absence of any improper motive on the
part of the witness, his relationship to the victim cannot impair the weight of
his testimony.
Same; Same; Same; Aggravating Circumstances; Conspiracy; Proof of
previous engagement among the malefactors to commit the crime would be
unnecessary to establish conspiracy when by their overt acts it could be
deduced that they conducted themselves in concert with one another.—A
conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. It need not
be established by direct evidence. It may be inferred from the acts of the
accused before, during or after the commission of the crime which, when
taken together, would be enough to reveal a community of criminal design.
Proof of previous engagement among the malefactors to commit the crime
would be unnecessary to establish conspiracy when by their overt acts it
would be deduced that they conducted themselves in concert with one
another.
Same; Same; Same; Same; Treachery; The essence of treachery is that the
attack is deliberate and without warning, done in swift and unexpected
manner of execution, affording the hapless and unsuspecting victim no
chance to resist or escape.—The killing was qualified by treachery. There is
treachery when the offender commits any of the crimes against persons,
employing means or methods in the execution thereof which tend directly
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 161
and specifically to insure its execution, without risk to the offender, arising
from the defense which the offended party might make. The essence of
treachery is that the attack is deliberate and without warning, done in swift
and unexpected manner of execution, affording the hapless and
unsuspecting victim no chance to resist or escape.
Same; Same; Same; Same; Abuse of Superior Strength; To take advantage
of superior strength is to purposely use excessive force, out of proportion to
the means of defense available to the person attacked.—Abuse of superior
strength was also attendant. To take advantage of superior strength is to
purposely use excessive force, out of proportion to the means of defense
available to the person attacked. In the case at bar, there was clear and
gross disparity of strength between the unarmed victim and the six armed
assailants—four of whom used four short firearms in shooting the wall where
the victim was taking refuge, while two others stood guard, also armed with
short firearms.
Same; Same; Same; Same; Aid of Armed Men; Requisites of the aggravating
circumstance of aid of armed men; Aid of armed men cannot be appreciated
separately as it is deemed to have been absorbed by treachery.—It was
further alleged that the offense was committed with the aid of armed men.
The requisites of this aggravating circumstance are: (1) that armed men or
persons took part in the commission of the crime, directly or indirectly, and
(2) that the accused availed himself of their aid or relied upon them when
the crime was committed. In this case, while the appellants were all armed,
all of them acted in conspiracy with one another. All of the appellants acted
in concert to ensure the commission of the crime. Hence, the aggravating
circumstance cannot be appreciated. Even if it were so, the same could not
be appreciated separately as it is deemed to have been absorbed by
treachery.

Same; Same; Same; Mitigating Circumstances; Voluntary Surrender;
Requisites for voluntary surrender to be appreciated.—Appellant Domingo
Banhaon insists that his voluntary surrender and his refusal to escape during
the jail break gives proof to his innocence. In order for voluntary surrender
to be appreciated, the following requisites should be present: (1) the
offender has not been actually arrested; (2) the offender surrendered himself
to a person in authority or the latter’s agent; and, (3) the surrender was
voluntary. Further, the surrender must be spontaneous in such a manner
that it shows the interest of the accused to surrender unconditionally to the
authorities, either because he acknowledged his guilt or because he wishes
to save them the trouble and expenses necessarily incurred in search and
capture.
Same; Same; Same; Aggravating Circumstances; Nighttime; This
circumstance is considered aggravating only when it facilitated the
commission of the crime, or was specially sought or taken advantage of by
the accused for the purpose of impunity; Although the offense was
committed at night, nocturnity does not become a modifying factor when the
place is adequately lighted and, thus, could no longer insure the offender’s
immunity from identification or capture.—The records reveal that the crime
was committed during nighttime. This circumstance is considered
aggravating only when it facilitated the commission of the crime, or was
especially sought or taken advantage of by the accused for the purpose of
impunity. The essence of this aggravating circumstance is the obscuridad
afforded by, and not merely the chronological onset of, nighttime. Although
the offense was committed at night, nocturnity does not become a modifying
factor when the place is adequately lighted and, thus, could no longer insure
the offender’s immunity from identification or capture. In the case at bar, it
was not shown that nighttime was especially sought for or used to insure the
offender’s immunity from identification or capture.
APPEAL from a decision of the Regional Trial Court of Pasig City, Br. 160.
The facts are stated in the opinion of the Court.
The Solicitor General for appellee.
Public Attorney’s Office for accused Luis and Rogelio Corcolon.
 Ildefonso B. Malveda for accused J. Calong-Calong.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 162
CALLEJO, SR., J.:
Before the Court is the appeal of the Decision [1] of the Regional Trial Court of
Pasig City, Branch 160, in Criminal Case No. 107788-H, finding the appellants
guilty beyond reasonable doubt of murder, qualified by treachery, sentencing
all of them to suffer the penalty of reclusion perpetua and ordering them to
indemnify, jointly and severally, the heirs of the deceased Ruben A. Velecina
in the amount of P50,000; and to pay the said heirs P20,000 as moral
damages; and, P10,000 as exemplary damages.
On March 3, 1994, accused Nelson Cariño, "Boy Pansit," appellants Domingo
Banhaon, Luis Corcolon, Rogelio "Boy" Corcolon and Lito Calong-Calong were
charged with murder in the Regional Trial Court of Calamba, Laguna,
originally docketed as Criminal Case No. 3953-94-C. On March 2, 1998, the
Court resolved to transfer the case to the Regional Trial Court of Pasig City.
The case was re-docketed and raffled to Branch 160 thereof. The accusatory
portion of the information reads as follows:
That on or about July 30, 1989 at Barangay Bayog, Los Baños, Laguna and
within the jurisdiction of this Honorable Court, the above-named accused
conspiring and confederating together and mutually helping each other and
with treachery, abuse of superior strength and with the aid of armed men,
did then and there wilfully, unlawfully and feloniously with intent to kill,
attack, assault and employ violence upon the person of Ruben Velecina by
then and there shooting him with powerful firearms thereby inflicting upon
him serious and mortal injuries in the different parts of his body which
directly caused his death to the damage and prejudice of his surviving heirs.
[2]
Except for Nelson Cariño and "Boy Pansit" who remained at large, the rest of
the accused were arrested. When arraigned, the accused, assisted by
counsel, entered their respective plea of not guilty.
The Case for the Prosecution
Leopoldo Cariño and his brother, Nelson Cariño, Luis Corcolon, Rogelio (Boy)
Corcolon, Lito Calong-Calong, Domingo Banhaon, "Boy Pansit" and Norberto
Ongjuatco were bodyguards of Mayor Antonio Sanchez of Calauan, Laguna.
Leopoldo was gunned down by an unknown assailant, and Mayor Sanchez
suspected that the following persons were involved in the killing: Ruben
Velecina; his mother, Atanacia Velecina; his brother who was a tricycle
driver, Valentin Velecina; Bernardo Velecina; and Recto Aniceto, all residents
of Los Baños, Laguna.

Nelson Cariño was reported to have killed Bernardo Velecina, while Recto
Aniceto was reportedly shot by the group of Lito Calong-Calong. Norberto
Ongjuatco, one of the bodyguards of Mayor Sanchez, secretly warned
Valentin to be careful. When apprised of the impending peril to their lives,
Valentin, Ruben and their mother, Atanacia, were afraid that they would be
killed next on orders of Mayor Sanchez.
Isidro Velecina and Dory Perez were to be wed on July 30, 1989. A pre-
nuptial party was set in the evening of July 29, 1989, to be held in the yard
of the Perez residence at Barangay Bayog, Los Baños, Laguna. Roger Perez,
Dory's father, invited his friends, and among them was Edwin Botero, a
former soldier in the Philippine Army and a security guard employed at the
Philippine Long Distance Company. Ruben Velecina, Isidro's father, also
invited guests of his own. Ruben's brother, Valentin, arrived at the house
with his family at about 7:00p.m. His wife, Ofelia, his mother, Atanacia, and
his son Rowel were with him. Valentin, Edwin and other guests had a
drinking spree in front of the house where the other guests were dancing
and singing. The house was made of bamboo and wood.
Between 12:30 and 1:00 a.m., July 30, 1989, Edwin noticed a white Ford
Fiera with plate number 777 stop in front of the alley leading to Roger's
house, about twenty (20) meters from where he and his friends were
drinking Tanduay. The Fiera was followed by a tricycle and a galvanized
owner-type jeep driven by "Boy Pansit." Edwin saw that Mayor Sanchez was
inside the Fiera, along with two others who were seated at the backseat;
beside "Boy Pansit" was Lito Corcolon. The latter alighted from the jeepney,
approached Edwin and asked him if Ruben and Roger, the fathers of the
persons to be wed, were inside the house. Edwin replied in the affirmative.
[3]
 Thereafter, Lito Corcolon returned to the Ford Fiera and whispered
something to Mayor Sanchez.[4] The Ford Fiera then drove away.
Lito Corcolon, Rogelio Corcolon, Nelson Cariño, "Boy Pansit," Lito Calong-
Calong and Domingo Banhaon then alighted from the jeepney and entered
the alley leading to the Perez residence. They posted themselves near the
kitchen. When Valentin Velecina saw Mayor Sanchez' men arrive, he posted
himself in a dark place near the chicken coop, about seven (7) meters from
the western side of the house. Valentin could see the kitchen from where he
was. He could also see the bodyguards of Mayor Sanchez, all of whom were
armed with short handguns.
Momentarily, Carlos Medel, Valentin's cousin arrived near the chicken coop to
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 163
urinate. When he saw Carlos, Valentin pulled his leg and told him to go to
the kitchen to tell his brother, Ruben, and his mother, Atanacia, that the
bodyguards of Mayor Sanchez were in the vicinity. Carlos obliged and left.
Meanwhile, Ruben went to the comfort room which was near the kitchen sink
and was covered by bamboo slits. As he emerged from the comfort room,
Nelson Cariño, Lito Calong-Calong, Rogelio and Lito Corcolon aimed their
guns at the kitchen and fired successively. "Boy Pansit" and Domingo
Banhaon pulled out their guns and acted as lookouts.
People hurriedly scampered away when they heard the gunfire. There were
shouts of: "May patay, may patay!" Momentarily, Nelson Cariño told his
companions: "Tayo na, yari na iyan." The six bodyguards of Mayor Sanchez
then left the scene and boarded the jeepney. Edwin and Valentin heard two
more gunshots coming from the direction of the jeep, after which the vehicle
sped away.
Meanwhile, Valentin remained behind the chicken coop until he felt that it
was safe for him to come out. Momentarily, he heard his brother, Ruben, cry
out, "Ate Uping, may tama ako."[5] Valentin rushed to the kitchen and saw
Ruben lying on the floor, mortally wounded.
Isidro Velecina and Roger Perez reported the incident to the police.
Policemen, including Wilfredo Palacpac and Oscar Ampao, rushed to the
scene,[6] and saw the cadaver of Ruben lying on the ground, face down. The
policemen recovered five empty shells fired from a .45 caliber gun, as well as
slugs which were embedded on the cement walls of the house. In the course
of the policemen's on-the-spot investigation, no one ventured to identify the
perpetrators. The shooting incident was recorded in the police blotter.
Dr. Ruben B. Escueta, the Rural Health Physician of Calauan, Laguna,
conducted an autopsy on the cadaver of Ruben Velecina and submitted a
report of his findings, viz:
NECROPSY FINDING
General Survey
Well develop (sic), well nourish (sic), male, white complexion measuring 165
cms. and weighing about 130 lbs. Wearing checkered and white and black
brief and bearing gun shot (sic) wounds on different parts of the body.
REGIONAL EXAMINATION
Head No Injury
Face No Injury
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 164

Neck and Nape No Injury cm. in length and 1 cm. in width. The bullet lodge (sic) on the medial portion
of the humerous (sic).
Chest
1). Through and through gun shot (sic) wound on the left lateral side of the Lower Extremity
chest to the right lateral side. The point of entrance is located between the Right Lower Extremity No Injury
5th and 6th ribs. Its entrance measure 1 cm. in length and 1 cm. in width. Left Lower extremity
The point of exit is located between the 9th and 10th rib on the right lateral Through and through gun shot (sic) wound on the medial portion of left
side of the chest, measuring 2 cms. in length and 1.5 cms. in width. thigh. The point of entrance is lateral medial portion of left thigh measuring
1 cm. in length and 1 cm. in width. The point of exit is located on the inner
Back medial portion of the left thigh. Measuring 2.5 cms. in length and 1.5 cms. in
2) Through and through gun shot (sic) wound on the right side of the back. width.
Through the left side. The point of entrance located between 4th and 5th
ribs medial portion measuring 1 cm. in width. The point of exit is located at AUTOPSY FINDING
the lateral side of the chest between the 9th and 10th ribs measuring 2 cms. Head
in length and 1.5 cms. in width. Cranial vault No injury
Brain tissue pale in appearance with collapsed blood vessel
3) Through and through gun shot (sic) wound on the right flank wound
between the 2nd and 3rd lumbar vertebrae through posterior portion of the Chest
chest between the 9th and 10th ribs left side of the chest. The point of
entrance is located between the 2nd and 3rd lumbar vertebrae measuring 1 Bonythorax
cm. in length and 1 cm. in width. The point of exit is located between the Fracture on the medial portion of 10th rib left side of the chest.
9th and 10th ribs, lateral side of the chest. Measuring 2.5 cms. in length and -through and through gun shot (sic) on the left upper lobe of the
1.5 cms. in width. lungs
Right lungs congested
4) Through and through gun shot (sic) wound on the left lumbar area. Heart laceration of the paracardiac soc (sic).
Located at the level of 6th vertebrae, through left waist line (sic). The point laceration of the posterior portion of the ventricle.
of entrance is located at the level of 6th lumbar vertebrae. Measuring 1 cm. laceration of the coronary blood vessel.
in length and 1 cm. in width. The point of exit is located at the left waistline. Abdominal Cavity laceration of peretonial (sic) covering of the abdomen.
Measuring 2.5 cms. in length and 1.5 cms. in width. laceration of anterior lobe of the liver.
Laceration of the rectus muscle on the muscle on the right side of the
EXTREMITIES abdomen
Upper extremities Extremities upper right extremity
Right laceration of the deltoid muscle blood vessel on the right shoulder
5) Through and through gun shot (sic) wound on the right shoulder through
the left lateral side of the chest. The point of entrance is located on the tip of REMARKS:
the right shoulder measuring 1 cm. in length and 1 cm. in width. The point
of exit is located on the left lateral side of the chest between the 5th and 6th About 2 liters of blood were obtain (sic) from the thoracic cavity.
ribs.
CAUSE OF DEATH:
6) Left upper extremity
Gun shot (sic) wound on the medial portion of the left forearm. The point of Massive Intra Thoracic Hemorrhage due to Gun Shot (sic) Wounds.[7]
entrance is located on the lateral medial portion of left forearm measuring 1

In the meantime, Atanacia advised her son Valentin to hide, as he might be
killed next. Valentin heeded his mother's advice and hid in San Pablo City. He
sought the help of the Ombudsman and the Criminal Investigation Service
(CIS) of the Philippine National Police, but was told to seek the help of the
New People's Army in Quezon. He reported the shooting to NBI Director
Antonio Carpio, who referred him to the police authorities in Batangas. When
he went to the police authorities in Batangas and revealed the identity of his
brother's assassins, he was told: "Bumangga ka pala sa pader, magpahinog
ka."
Nonetheless, on March 15, 1991, Valentin sought the help of the President of
the Philippines and gave a sworn statement to Norberto Galang at the
Kalayaan Hall, Malacañang, Manila.[8] Edwin Botero was, however, afraid to
reveal the identities of the culprits to the police authorities and that he
witnessed the killing.
On August 13, 1993, Mayor Antonio Sanchez was arrested for rape with
homicide. His bodyguards, the Corcolon Brothers Luis and Rogelio, had
earlier surrendered to the Criminal Investigation Service for the same crime.
[9]
 Barely three (3) days after Mayor Sanchez' arrest, Edwin Botero gave his
sworn statement to the Anti-Organized Crime Division of the NBI. [10] He
applied for and was granted protection under the Witness Protection
Program of the Department of Justice.
The Case for the Appellants
Appellant Rogelio "Boy" Corcolon denied the charge against him and offered
alibi as his defense. While admitting that he knew Mayor Antonio Sanchez,
[11]
 he denied that he had ever been in the latter's employ. He claimed that
he worked as a company guard of San Miguel Corporation. [12] He related that
at or about 1:00 a.m. of July 30, 1989, he was in his residence at Barangay
Mabacan, Calauan, Laguna, approximately thirty minutes away from
Barangay Bayog.[13] He stated that he knew accused Cariño as "Bodoy," but
denied being with the latter on July 30, 1989. He, likewise, disclaimed
knowing appellant Calong-Calong and explained that he only met him in the
courtroom. He denied knowing Edwin Botero, saying that he met the latter
only at the NBI. He also stated that he did not know much about Ruben
Velecina and "Boy Pansit."
For his part, Luis Corcolon claimed that at the time the incident occurred, he
was a resident of Barangay Masaya. He denied knowing the victim, Ruben
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 165
Velecina, but admitted that he used to see Valentin Velecina in the cockpit.
He had heard of the name Nelson Cariño, but denied knowing the appellant
Domingo Banhaon. He only got to meet "Boy Pansit" and Lito Calong-Calong
in court.[14] He, likewise, denied that he was, at any time, in the employ of
Mayor Sanchez, and claimed that he knew the latter only because he was the
Mayor of Calauan.[15]
Domingo Banhaon, on the other hand, claimed that in the afternoon of July
29, 1989, he was in their residence at Barangay San Isidro, Calauan, Laguna,
with the newly-eloped couple Alfredo and Lorenza Alcantara. [16] As a friend
and cousin of Alfredo, appellant Banhaon and his wife helped the Alcantara
couple in preparing for their marriage. Appellant Banhaon fetched Barangay
Captain Alberto Oroga of Barangay Lanot, and the latter accompanied them
and the Alcantara couple to Alfredo's parents, who were residing in Barangay
Talang Uno, Lumban, Laguna where Alfredo's parents resided. They left
Calauan at 6:00 p.m. and reached Lumban at 8:00 p.m.[17] The Banhaons
helped the Alcantara couple explain their situation to Alfredo's parents. The
talk ended at around 10:00 p.m., prompting the Banhaons to spend the
night at the Alcantara residence. They left Lumban for Calauan at 5:00 a.m.
of July 30, 1989. Upon reaching their house, Domingo Banhaon learned of
Ruben Velecina's death. He then attended the victim's wake, as the latter
also happened to live in the same barangay.[18] He admitted that he knew the
Velecina family, having worked for them as helper.
Appellant Banhaon also claimed that Valentin Velecina, the victim's brother,
knew him to have provided photography services to Mayor Sanchez. Valentin
approached him, and asked him to testify and implicate the Mayor in the
killing of Ruben. Appellant Banhaon also claimed that Valentin threatened to
implicate him in the murder of Ruben if he refused. As he did not know
anything about the circumstances of Ruben's death, appellant Banhaon
refused to testify against Mayor Sanchez. Hence, Valentin Velecina implicated
him in the killing.
Appellant Banhaon presented Lorenza Alcantara as witness to corroborate his
testimony.[19]
Appellant Joselito Calong-Calong, for his part, denied any participation in the
killing. He claimed that he was never employed by Mayor Sanchez, but that
he worked as a truck helper at the Pepsi Bottling Company from 1976 to
1991, and then transferred to the Cosmos Bottling Company in 1992 until he
was arrested. He said that he came to know Rogelio and Luis Corcolon only
during the arraignment of the case.[20] He also claimed that on July 29, 1989,

he arrived from work at 7:00 p.m. and stayed at home with his wife and
children. He went to church the next day. On his way home, as he passed by
the house of Dominador Banhaon, he learned of the death of Ruben
Velecina, who lived only about "twelve (12) Meralco posts away" from him.
He countered that Valentin Velecina approached him to testify in the killing
of Ruben. When he refused, Valentin got mad and threatened him, "Para
kang hindi kanayon, kapag ako'y nainis sa 'yo, isasama kita." [21]
On September 30, 1996, the trial court promulgated its decision finding the
appellants guilty beyond reasonable doubt of murder. The dispositive portion
of the decision reads:
WHEREFORE, foregoing considered, the Court finds accused LUIS
CORCOLON, ROGELIO "BOY" CORCOLON, LITO CALONG-CALONG, and
DOMINGO BANHAON, GUILTY, beyond reasonable doubt of the crime of
Murder under Article 248 of the Revised Penal Code, qualified by treachery
and there being no mitigating or aggravating circumstances present in the
commission of the crime, hereby sentences, said accused to suffer a penalty
of reclusion perpetua, and the accused jointly and severally to indemnify the
heirs of the deceased in the amount of P50,000.00, to pay moral damages of
P20,000.00, exemplary damages of P10,000.00 and to pay the costs. [22]
The trial court declared that the prosecution was able to prove and establish
the crime charged and that the appellants were guilty thereof. It found
Edwin Botero and Valentin Velecina's positive identification of the victim's
assailants credible and entitled to full probative weight, as against the denial
and alibi of the appellants. It held that the initial reluctance of the aforesaid
witnesses to testify against the appellants did not militate nor diminish their
credibility, especially considering the perilous situation they were in. Further,
Valentin Velecina had no reason to implicate his barriomates, appellants
Banhaon and Calong-Calong.
The court found that the appellants conspired with one another in killing the
victim, and that they committed the crime with treachery and abuse of
superior strength.
The Present Appeal
The appellants now come to this Court to appeal the trial court's decision.
The appellant Calong-Calong assails the decision of the trial court contending
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 166
as follows:
THAT THE HONORABLE COURT A QUO COMMITTED SERIOUS ERRORS IN
LAW AND/OR MISAPPREHENSION OF FACTS WHEN IT FOUND THE
ACCUSED-APPELLANT JOSELITO CALONG-CALONG GUILTY OF THE CRIME
OF MURDER DESPITE THE PRESENCE OF REASONABLE DOUBT AND/OR
INSUFFICIENCY OF EVIDENCE AS AGAINST HIM THE ALLEGED PRESENCE
OF CONSPIRACY NOT HAVING BEEN DULY PROVEN BY THE
PROSECUTION'S EVIDENCE … [23]
Appellant Calong-Calong asserts that the trial court committed serious errors
in law when it found him guilty beyond reasonable doubt of murder,
considering that the evidence presented against him was insufficient,
especially as witnesses Edwin Botero and Valentin Velecina failed to identify
him. He stressed that witness Valentin Velecina was ill-motivated in
implicating him in the murder charge. He furthered that only one kind of
weapon caused the wounds that led to the death of Ruben Velecina. [24]
The appellants, Corcolon Brothers, for their part, contend that:
THE REGIONAL TRIAL COURT IN PASIG CITY (BRANCH 160) HAS ERRED IN
NOT ABSOLVING AND FREEING ACCUSED-APPELLANTS LUIS CORCOLON
AND ROGELIO CORCOLON OF THE SERIOUS CRIME OF MURDER DUE TO
THE PRESENCE OF REASONABLE DOUBT IN THEIR FAVOR.
They point out that the RTC erred in finding them guilty beyond reasonable
doubt of the crime of murder, when the prosecution was not able to prove
that they were involved in the aforesaid crime.
The appellant Banhaon, on the other hand, argues that he should be
acquitted of the crime charged:
THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED-APPELLANT
DOMINGO BANHAON GUILTY OF MURDER DESPITE THE INSUFFICIENCY OF
THE PROSECUTION EVIDENCE THAT WOULD WARRANT A CONVICTION
BEYOND REASONABLE DOUBT.[25]
Appellant Banhaon contends that the trial court erred in not considering his
defense. He emphasized that his innocence is buttressed by his voluntary
surrender and the decision to remain in jail despite an opportunity to escape
during a jail break.[26]
On the other hand, the OSG avers that the prosecution established the crime
with clear and convincing evidence through the testimony of witnesses Edwin
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 167

Botero and Valentin Velecina. The OSG contends that, in light of the
prosecution witnesses' testimonies, the denial and alibi of the appellants
cannot prevail. The prosecution, likewise, proved that the appellants, in
conspiring with one another and with the use of treachery and abuse of
superior strength, willfully and unlawfully, killed Ruben Velecina.
The Ruling of the Court
or so, and while he was hiding in a nearby chicken coop, he saw the accused
Nelson Cariño, appellants Luis Corcolon, Rogelio Corcolon and Lito Calong-
Calong fire their guns towards the kitchen sink, as Ruben Velecina emerged
from the comfort room, while Domingo Banhaon and "Boy Pansit" acted as
lookouts. When Luis Corcolon and his cohorts stopped firing, he heard his
brother say, "Ate Uping, may tama ako." Immediately after the assailants
left, he entered the house and saw his brother's body slumped on the
ground, soaked in his own blood.[31] The testimony of Velecina is quoted, viz:

The threshold issue is whether or not the trial court erred in giving credence While you were at the back of the house of Dory Perez, what
Q:
and probative weight to the testimonies of the prosecution witnesses while transpired next?
disbelieving those of the appellants. At about 10:30 in the evening when I noticed that several persons
A: arrived coming from the back portion of the house and not infront of
Well-settled is the rule that the findings of a trial court on the credibility of the house.
witnesses deserve great weight, as the trial judge has a clear advantage over Q: You are referring to what date, Mr. Witness?
the appellate magistrate in appreciating testimonial evidence. The trial judge ATTY. PIO: Already answered your Honor.
is in the best position to assess the credibility of the witness as he had the COURT: Witness may answer.
unique opportunity to observe the witness firsthand and note his demeanor, A: July 29.
conduct and attitude under grueling examination. Absent any showing that FISCAL:
the trial court's calibration of credibility was flawed, we are bound by its Now, you said that there were several persons who arrived, who
Q:
assessment.[27]Only the trial judge can observe the furtive glance, blush of were these persons?
conscious shame, hesitation, flippant or sneering tone, calmness, sigh, or the A: The six (6) persons I have mentioned earlier.[32]
scant or full realization of an oath all of which are useful aid for an accurate …
determination of a witness' honesty and sincerity. The trial court's findings Q: Upon arrival at the said place, what did they do there?
are accorded finality, unless there appears in the record some fact or When I saw them at that time they just stood near the house and
A:
circumstance of weight which the lower court may have overlooked, positioned themselves.
misunderstood or misappreciated, and which, if properly considered, would Mr. Witness, how far were you from these persons when you saw
Q:
alter the result of the case.[28] them?
A: More or less as far as that window
We have reviewed the records and we find no justification to deviate from .…
the findings of the trial court. The denial of the appellants of the crime INTERPRETER: Measuring a distance of eight meters.
charged cannot prevail over the positive declarations of prosecution FISCAL:
witnesses Edwin Botero and Valentin Velecina. The defense of alibi is Q: How long did they stay on the said place?
inherently weak and crumbles in the light of positive declarations of truthful A: More or less as I could estimate about one half hour.
witnesses, who testified on affirmative matters that the appellants were at Q: How about you, where were you at that time?
the scene of the incident and were among the victim's assailants. [29] Positive A: I was just standing at that time which was not well lighted.
identification where categorical and consistent and without any showing of ill Why were you so certain that those persons whom you saw were the
Q:
motive on the part of the eyewitness testifying on the matter prevails over a same persons?
denial which, if not substantiated by clear and convincing evidence is Because on the place where they entered there was a flourescent
A:
negative and self-serving evidence undeserving of weight in law. [30] light lighted.
INTERPRETER: Witness pointing to the long flourescent tube.
In this case, Valentin Velecina testified that at a distance of seven (7) meters FISCAL:
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 168

By the way Mr. Witness, you have earlier pointed to this Honorable A: I still stay there and I did not get away till those persons left.
Q: Court the persons of Rogelio Corcolon and Luis Corcolon, how about Towards what direction were those people who shoot your brother
Q:
the other persons you saw at Dory's residence, please look around? proceeded?
A: They are not around. A: Towards the place where they entered.[33]
Q: After thirty minutes (30) of staying there what happen (sic) next? …
A: Before the lapse of thirty minutes somebody approach me. FISCAL:
Q: Who was that person who approached you? Mr. Witness, when the person whom you earlier named aimed or
A: Carlos Medel asked permission if he could urinate. Q: fired their firearms towards the direction of Dory's residence, where
Q: When he approached you, what did he do? were you at that time?
I whisper[ed] to him to go inside and tell not to go out for the A: I was at a dark place near the chicken coop.
A:
henchmen of Mayor Sanchez was here. Q: When did you come out of the place where you were hiding?
What was the reaction of Carlos Medel, whom you instructed to go After the gunshot and Nelson Cariño uttered "TAYO NA YARI NA
Q: A:
inside? YAN."
A: He entered the house and told me that they would inform. …
Q: So, you were left outside? Q: After the group left the place, what followed next?
A: Yes, Sir. After they have left in a few seconds, I heard two gunshots, they
Q: What did you do when you were left behind? A: fired twice when they were at the road when I heard before the time
I cover[ed] myself by trying to get near them so that I could identify they sped away, that is the time I entered inside.
A:
them. Q: When you entered your brother?
Q: What did you do next to these fellows whom you earlier named? A: Yes, Sir.
After a while I saw them pulling out short firearms and I saw them Q: Do you recall if your brother was armed at that time?
A: aiming their guns on the persons on the side and then bursts of A: None, Sir.
gunshots near a wall, it was just a wall with bamboo on top of it. You earlier stated Mr. Witness that there were four among those
Q:
Would you kindly specify those persons whom you said were carrying persons whom you earlier named who fired their guns?
Q:
firearms? A: Yes, Sir.
A: The six of them but only four aimed their firearms. Q: Who are they?
Q: Do you know the caliber of firearms they were carrying at that time? Nelson Cariño, Luis Corcolon, Lito Calong-Calong, Rogelio Corcolon
A:
A: I could not remember if 45 or 38. and the other two have guns but they seem to be look out.
You earlier stated "PUMUTOK" towards what direction were the Q: Who were those two that you are referring to Mr. Witness?
Q:
firings directed? A: Domingo Banhaon and Boy Pansit.
A: Inside. Mr. Witness, will you kindly tell again the Honorable Court those
Q:
Q: Inside what? persons, the six persons whom you earlier mentioned were here?
A: Inside the house. A: Only three.
Q: What happened after that? Q: Who?
A: When they were firing their guns, the people scampered away. A: Luis Corcolon the one with fan.
Q: How about you, where were you at that time? INTERPRETER: Witness pointed to Luis Corcolon.
A: I stayed in my place and watch. A: Rogelio Corcolon.
Q: How long did the firing last? INTEPRETER: Witness pointed to Rogelio Corcolon, one of the accused in
A: I could not remember for how long but only for a short while. this case.[34]
Q: After that firing, what transpired next? Edwin Botero corroborated the testimony of Valentin Velecina. He testified
A: I heard my brother Ruben shouting "ATE UPING MAY TAMA AKO." that he saw Luis Corcolon, Rogelio Corcolon, "Boy Pansit" and two others go
Q: Upon hearing this remark of your brother, what did you do? inside the alley leading to the back of the Perez residence. After thirty
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 169

minutes, he heard shots coming from the direction of the said house. As …
people scampered in panic, he saw the appellants Luis Corcolon, Rogelio FISCAL: Luis Corcolon.
Corcolon and Boy Pansit come out of the alley with handguns on display. A: Black jacket.
They fired shots in the air and then sped away in the jeep. What about the other persons the passenger of the jeep or the Ford
Q:
Fiera?
FISCAL: A: No, Sir. I could not remember.
When this owner-type jeep passed by your place where you were You said that Luis Corcolon just walk to the place where the Ford
Q: Q:
drinking, what did Luis Corcolon do if any, if you remember? Fiera was parked what happened after that?
When the jeep pass by, Luis Corcolon alighted from the jeep and he The Ford Fiera moves forward and stop at the rear of the tricycle, he
A:
A: asked something from us. He asked us why we are drinking in that turned around and whisper something to Mayor Sanchez.
place and I told him I was invited by Mang Roger. Now, you had been mentioning the accused Luis Corcolon and
Q:
Q: Are you referring to Mang Roger? Rogelio Corcolon, could you tell us why you know them personally?
A: Roger Perez. I was formerly a soldier and we trained CAFGU and the other CAFGU
Aside from asking you why you were drinking in that place, what did A: has been taken by Mayor Sanchez as body guard and I was assigned
Q: at Dayap in Calauan, Laguna.
he asked you if any?
He asked me that question, he asked me if the father of the person Q: When was this tour of duty of yours in Calauan, Laguna?
A: A: 1990.
to be wed was there.
Q: What was your answer? COURT: Were you one of the body guards of Mayor Sanchez which was
A: I told him he was inside. assigned to him?
Q: Do you remember if he mention any name? A: No, Your Honor.
None Sir, he just asked me if the father of the person to be wed is FISCAL:
A: Now, the question that was paused to you, why you personally know
there.
Q: What was your actual answer to the question? Luis Corcolon and Rogelio Corcolon, now your answer was that you
Q:
A: I told him Roger Perez and Ruben Velecina were there. were assigned at Dayap and that Mayor Sanchez got one half of the
Let's go back to the Ford Fiera, you said it pass by you, where does it CAFGU, how did you come to meet them?
Q: I have been going to the house of Mayor Sanchez I saw them there
go if any? A:
When the Ford Fiera pass by our place it stop in a distance and the as trainees of CAFGU.
A: What about the two accused Luis and Rogelio Corcolon, were they
owner-type jeep proceeded and Luis Corcolon just walk by. Q:
What about the tricycle with the three persons riding on its where did also trainee?
Q: A: No, Sir.
they go?
A: It parked near the Ford Fiera. Q: Would you know a person by the name of Lito Calong-Calong?
Now far more or less from you from the place where you were A: No, Sir.
Q: Let's go back to that point when you saw Luis Corcolon whispering to
drinking did the Ford Fiera parked? Q:
A: About fifty (50) meters. Mayor Sanchez what happen after that?
INTERPRETER: Witness pointing a distance up to the tree outside in the After that, that they have whispered to each other the Ford Fiera left
A:
other side of the road. and they entered the alley.
FISCAL: Twenty meters? Q: You said "PUMASOK SILA" who was this?
ATTY. PIO: Thirty five meters. All of them, Luis Corcolon, Boy Corcolon and Boy Pansit, I do not
A:
… know the others.
FISCAL: Now, more or less, how many persons entered that alley together
Q:
Now, let's go back to Corcolon, would you remember what was he with Boy Pansit and the two Corcolon?
Q: A: There were six (6) of them.
wearing at that time?
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 170

Q: That alley was leading to what direction? When you said you saw a short gun, where did you see this handgun
Q:
A: At the back of Mang Roger. and at what time?
After you saw them entered the alley, what did you and your group A: More or less 1:00 o'clock.
Q:
do if any? Q: Where were they when you see them with the handgun?
A: We continue drinking. A: At the place of the incident at Mang Roger's place.
Q: After a while, what happened if any? After you heard two gunshots while this group of Boy Corcolon, what
Q:
A: More or less 30 minutes I heard gunshots. else happened?
Q: After you heard gunshots, what else happen if any? A: They left afterwards and later a tricycle come and I went home.[35]
During the gunshot people panic, we were separated, the people The failure of Edwin Botero and Valentin Velecina to report the crime
A:
were going out. immediately after the commission thereof did not diminish their credibility. It
Now, you said you heard gunshots, during your lifetime with the should be remembered that different people react differently to an unusual
Q:
Armed Forces, do you have training of firing guns? event.[36] There is no standard behavior when confronted with a strange,
A: Yes, Sir. startling or frightful occurrence. Fear has been known to render people
So, when you heard gunshots that evening, where do you think, from immobile and helpless particularly in life and death situations. Any person
Q:
what direction were those gunshots came from? faced with such an overwhelming situation would sufficiently be cowed by
A: It came from the back of the house of Roger Perez where they fear or at least compelled to act in a manner aimed at self-preservation.
entered through. [37]
 Witnesses may keep silent for a time rather than risk their lives. As we
Now, you said that you heard the shooting there were people ruled in People v. Rimorin:[38]
Q: scampering, what else did you see aside from those people coming
out, who else did you see if any? That Osoteo's fear of Rillon constrained him for ten years from revealing the
A: I heard from the people running "MAY PATAY, MAY PATAY." crime and identifying the perpetrators to the authorities is understandable.
What about Luis Corcolon, Rogelio Corcolon and Boy Pansit and the The delay should not in any way taint his credibility. It should in fact foster
Q:
other group, did you see them again after the series of gunshots? credence in his revelation, considering that after ten years he did not have to
They all came out and boarded the Ford Fiera and owner-type jeep come out to testify if there was no grain of truth in it.
A:
and the tricycle. The initial reluctance of witnesses Edwin Botero and Valentin Velecina to
You said that the group of Boy Pansit, Rogelio Corcolon went back to testify against the accused and the appellants had been satisfactorily
Q: the tricycle and the owner-type jeep, what were they carrying at that explained. Valentin Velecina testified that he was not able to report the
time? incident for fear that he would be the next target of the assailants who were
ATTY. PIO: bodyguards of Mayor Antonio Sanchez of Calauan, Laguna, especially
Objection, Your Honor. considering that two of his relatives had been killed and that he had received
COURT: death threats.
Objection sustained.
FISCAL: Mr. Witness, prior to the death of your brother Ruben Velecina, your
What did you observe when they went back to the owner-type jeep nephew by the name Bernardo Velecina was killed, and after that
Q:
and the tricycle? Q: your cousin by the name of Recto Aniceta was also killed and you
A: After they boarded and they fired shots upward. suspected a certain Ruben Cariño as the one who killed these two
Q: How many gunshots while in the jeep? persons, is that correct?
A: Two shots while in the jeep. A: Yes, Sir.
Would you know what kind of firearm was fired while they were in And you believe the reason why Nelson Cariño killed Ruben Velecina
Q: Q:
the jeep? was because of the death of Leopoldo Cariño, is that correct?
A: I do not know, it was just a short gun that I saw. A: Yes, Sir.
COURT: Q: And your family was suspected behind the killing of Leopoldo Cariño?

A: Yes, Sir.
And this is the reason why up to now you are still in hiding for you
Q:
believe that Nelson Cariño would like to kill you?
A: Yes, Sir.[39]
Edwin Botero testified that it was only on August 16, 1993 that he came out
because he was afraid that he would be killed by the accused and the
appellants if he testified. Upon seeing his kababayan, Atty. Sacaguing of the
NBI, on television regarding the Aileen Sarmenta case, he decided to testify
on the victim's behalf.
FISCAL:
Now, Mr. Witness, it appears in your statement that the date when
you executed this is August 16, 1993 before the Office of Head
Q: Sergeant Artemio Sacaguing, please explain to this Court why you
only executed this affidavit on August 16, 1993 when the incident
happened on July 30, 1989?
The reason why I did not come out because I am afraid I could not
A:
present myself as witness.
What could be the reason why you eventually change (sic) your mind
Q:
and executed this affidavit?
I saw Atty. Sacaguing in the (sic) T.V. and my townmate with the
A:
NBI. I voluntarily went to him to give justice to the Velecina case.
Q: What was the topic of the TV program that inspired you to come out?
About Mayor Sanchez and Kit Alquesa was inflicted (sic) with the
A:
Aileen Sarmenta case.[40]
By then, Mayor Sanchez and his bodyguards, the appellants Luis Corcolon
and Rogelio Corcolon had been placed in the custody of police authorities.
Edwin Botero was so afraid for his life that he applied for and was granted
protection under the Witness Protection Program of the Department of
Justice.
Neither did Valentin Velecina's relationship with Ruben Velecina render his
testimony biased. Relationship, by itself, does not give rise to any
presumption of bias or ulterior motive, nor does it impair the credibility of
witnesses or tarnish their testimonies. The relationship of a witness to the
victim would even make his testimony more credible, it being unnatural for a
relative who is interested in vindicating the crime charged and prosecute
another person other than the real culprit.[41] Relatives of victims of crimes
have a natural knack for remembering the faces of the assailants more than
anybody else, and would be concerned with obtaining justice for the victim
by having the felon brought to justice and meted the proper penalty. [42] In
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 171
the absence of any improper motive on the part of the witness, his
relationship to the victim cannot impair the weight of his testimony. [43]
We agree with the ruling of the trial court that the appellants conspired to kill
Ruben.
A conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. [44]It need not
be established by direct evidence. It may be inferred from the acts of the
accused before, during or after the commission of the crime which, when
taken together, would be enough to reveal a community of criminal design.
[45]
 Proof of previous engagement among the malefactors to commit the
crime would be unnecessary to establish conspiracy when by their overt acts
it would be deduced that they conducted themselves in concert with one
another.[46]
As gleaned from the records, the following chain of events show that there
was community of design among the appellants: (1) the appellants, although
in separate vehicles, arrived at the scene of the crime together at
approximately 12:30 a.m. on July 30, 1989; (2) accused Nelson Cariño and
appellants Corcolon Brothers and Lito Calong-Calong fired shots on the wall
where Ruben Velecina was taking refuge, while appellant Domingo Banhaon
and "Boy Pansit" stood guard; (3) the group of Luis Corcolon stopped firing
on the wall only when accused Nelson Cariño assured them that the victim
was dead, uttering "Tayo na yari na yan;" and, (4) the group left together
after shooting the wall.
In People v. Delim,[47] we held that lookouts are criminally liable as principal,
by direct participation.
The killing was qualified by treachery. There is treachery when the offender
commits any of the crimes against persons, employing means or methods in
the execution thereof which tend directly and specifically to insure its
execution, without risk to the offender, arising from the defense which the
offended party might make.[48] The essence of treachery is that the attack is
deliberate and without warning, done in swift and unexpected manner of
execution, affording the hapless and unsuspecting victim no chance to resist
or escape.[49] In the case at bar, the victim was inside the Perez residence
and was busy preparing for the wedding of his son, Isidro Velecina, to Dory
Perez, the daughter of Roger Perez. The victim was unarmed and was
deprived of any means to defend himself, or to evade the sudden and
unexpected assault.

The autopsy conducted by Dr. Ruben Escueta shows that the victim
sustained a total of seven (7) gunshot wounds, with entrances at the back
and the other wounds sustained while in a lying position. Per the autopsy
report, the cause of the victim's death was massive hemorrhage in the
thoracic cavity due to accumulation of two liters of blood arising from
lacerations sustained by the right lung, heart, liver and abdominal muscles.
Abuse of superior strength was also attendant. To take advantage of
superior strength is to purposely use excessive force, out of proportion to the
means of defense available to the person attacked. [50] In the case at bar,
there was clear and gross disparity of strength between the unarmed victim
and the six armed assailants - four of whom used four short firearms in
shooting the wall where the victim was taking refuge, while two others stood
guard, also armed with short firearms. The victim, who was inside the house
preparing for his son's wedding, gave no provocation when he was attacked.
However, the aggravating circumstance of superior strength cannot be
separately appreciated because it is absorbed by treachery. [51]
It was further alleged that the offense was committed with the aid of armed
men. The requisites of this aggravating circumstance are: (1) that armed
men or persons took part in the commission of the crime, directly or
indirectly, and (2) that the accused availed himself of their aid or relied upon
them when the crime was committed.[52] In this case, while the appellants
were all armed, all of them acted in conspiracy with one another. All of the
appellants acted in concert to ensure the commission of the crime. Hence,
the aggravating circumstance cannot be appreciated. Even if it were so, the
same could not be appreciated separately as it is deemed to have been
absorbed by treachery.[53]
Appellant Domingo Banhaon insists that his voluntary surrender and his
refusal to escape during the jail break gives proof to his innocence. In order
for voluntary surrender to be appreciated, the following requisites should be
present: (1) the offender has not been actually arrested; (2) the offender
surrendered himself to a person in authority or the latter's agent; and, (3)
the surrender was voluntary. Further, the surrender must be spontaneous in
such a manner that it shows the interest of the accused to surrender
unconditionally to the authorities, either because he acknowledged his guilt
or because he wishes to save them the trouble and expenses necessarily
incurred in search and capture.[54]
In the case at bar, appellant Banhaon remained at large even after Judge
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 172
Francisco Ma. Guerrero issued the warrant for his arrest on March 17, 1994.
[55]
 Appellant Banhaon surrendered only on June 27, 1995, after an alias
warrant of arrest had already been issued against him, and approximately six
years after the commission of the crime. Clearly, voluntary surrender cannot
be appreciated in his favor as a mitigating circumstance. Neither can it be
used to show his innocence. Appellant Banhaon's failure to escape is not
indicative of his innocence.
The records reveal that the crime was committed during nighttime. This
circumstance is considered aggravating only when it facilitated the
commission of the crime, or was especially sought or taken advantage of by
the accused for the purpose of impunity. The essence of this aggravating
circumstance is the obscuridad afforded by, and not merely the chronological
onset of, nighttime. Although the offense was committed at night, nocturnity
does not become a modifying factor when the place is adequately lighted
and, thus, could no longer insure the offender's immunity from identification
or capture.[56] In the case at bar, it was not shown that nighttime was
especially sought for or used to insure the offender's immunity from
identification or capture.
We note that the Information alleges that the appellants used firearms to kill
the victim. Under Republic Act No. 8294, the use of unlicensed firearm is an
aggravating circumstance if such firearm is used to commit homicide or
murder. However, such circumstance cannot be appreciated against the
appellants because of the following: (a) the law took effect after the
commission of the crime and a retroactive application thereof would be
unfavorable to the appellants; and, (b) there is no allegation in the
Information, nor was it proved by the prosecution that the appellants had no
license or permit to possess the firearms. The lack of license or permit of the
appellants to possess the firearms is a negative averment which is an
essential element of the aggravating circumstance and must be alleged in
the Information.
Under Article 248 of the Revised Penal Code, as amended by Rep. Act No.
7659, murder is punishable by reclusion perpetua to death. However, when
the crime was committed in 1989, murder was punishable by reclusion
temporal maximum to death. 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. In this case, no mitigating nor aggravating circumstance
attended the commission of the crime. Hence, the trial court correctly
imposed the penalty of reclusion perpetua on the appellants.

Conformably with recent jurisprudence, we sustain the amount of P50,000
for civil indemnity to the heirs of the deceased without need of any further
proof.[57] Exemplary damages of P25,000[58] must, likewise, be awarded, in
accordance with Article 2230 of the Civil Code because of the attendance of
the qualifying circumstance of treachery.[59] However, the award of moral
damages should be deleted in the absence of any sufficient evidence to
support the same.[60] The heirs of the victim are, however, entitled to
temperate damages.[61]
WHEREFORE, the appealed decision of the Regional Trial Court of Pasig
City, Branch 160, finding the appellants Luis Corcolon, Rogelio "Boy"
Corcolon, Lito Calong-Calong and Domingo Banhaon guilty beyond
reasonable doubt of murder is hereby AFFIRMED with MODIFICATIONS.
Said appellants are ORDERED to pay, jointly and severally, the heirs of the
victim, Ruben Velecina, Fifty Thousand Pesos (P50,000) as civil indemnity;
Twenty-Five Thousand Pesos (P25,000) as exemplary damages; and Twenty-
Five Thousand Pesos (P25,000) as temperate damages. The award of moral
damages is deleted.
SO ORDERED.
Puno, Quisumbing, Austria-Martinez, and Tinga, JJ., concur
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 173
G.R. No. 153559. June 8, 2004.*
PEOPLE OF THE PHILIPPINES, appellee, vs. ANTONIO COMADRE,
GEORGE COMADRE and DANILO LOZANO, appellants.
Evidence; Witnesses; Honest inconsistencies on minor and trivial matters
serve to strengthen rather than destroy the credibility of a witness to a
crime, especially so when, as in the instant case, the crime is shocking to the
conscience and numbing to the senses.—Witnesses cannot be expected to
remember all the details of the harrowing event which unfolded before their
eyes. Minor discrepancies might be found in their testimony, but they do not
damage the essential integrity of the evidence in its material whole, nor
should they reflect adversely on the witness’ credibility as they erase
suspicion that the same was perjured. Honest inconsistencies on minor and
trivial matters serve to strengthen rather than destroy the credibility of a
witness to a crime, especially so when, as in the instant case, the crime is
shocking to the conscience and numbing to the senses.
Same; Same; Motive; Absent evidence showing any reason or motive for
prosecution witnesses to perjure, the logical conclusion is that no such
improper motive exists, and their testimony is thus worthy of full faith and
credit.—It was not shown that witnesses Jimmy Wabe, Rey Camat, Lorenzo
Eugenio and Gerry Bullanday had any motive to testify falsely against
appellants. Absent evidence showing any reason or motive for prosecution
witnesses to perjure, the logical conclusion is that no such improper motive
exists, and their testimony is thus worthy of full faith and credit.
Same; Same; Alibi; For the defense of alibi to prosper, the accused must
prove not only that he was at some other place at the time of the
commission of the crime but also that it was physically impossible for him to
be at the locus delicti or within its immediate vicinity.—The trial court is
likewise correct in disregarding appellants’ defense of alibi and denial. For
the defense of alibi to prosper, the accused must prove not only that he was

at some other place at the time of the commission of the crime but also that
it was physically impossible for him to be at the locus delicti or within its
immediate vicinity.
Same; Same; Positive Identification; The positive identification of the
appellants by eyewitnesses Jimmy Wabe, Jaime Agbanlog, Rey Camat and
Gerry Bullanday prevails over their defense of alibi and denial.—Apart from
testifying with respect to the distance of their houses from that of Jaime
Agbanlog’s residence, appellants were unable to give any explanation and
neither were they able to show that it was physically impossible for them to
be at the scene of the crime. Hence, the positive identification of the
appellants by eyewitnesses Jimmy Wabe, Jaime Agbanlog, Rey Camat and
Gerry Bullanday prevails over their defense of alibi and denial.
Evidence, Judges; Judgment; The fact that the judge who heard the
evidence is not the one who rendered the judgment and that for that reason
the latter did not have the opportunity to observe the demeanor of the
witnesses during trial but merely relied on the records of the case does not
render the judgment erroneous.—It is not unusual for a judge who did not
try a case to decide it on the basis of the record for the trial judge might
have died, resigned, retired, transferred, and so forth. As far back as the
case of Co Tao v. Court of Appeals we have held: “The fact that the judge
who heard the evidence is not the one who rendered the judgment and that
for that reason the latter did not have the opportunity to observe the
demeanor of the witnesses during the trial but merely relied on the records
of the case does not render the judgment erroneous.” This rule had been
followed for quite a long time, and there is no reason to go against the
principle now.
Criminal Law; Murder; Aggravating Circumstances; Conspiracy; Settled is the
rule that to establish conspiracy, evidence of actual cooperation rather than
mere cognizance or approval of an illegal act is required.—Similar to the
physical act constituting the crime itself, the elements of conspiracy must be
proven beyond reasonable doubt. Settled is the rule that to establish
conspiracy, evidence of actual cooperation rather than mere cognizance or
approval of an illegal act is required.
Same; Same; Same; Same; Mere presence of a person at the scene of the
crime does not make him a conspirator for conspiracy transcends
companionship.—A conspiracy must be established by positive and
conclusive evidence. It must be shown to exist as clearly and convincingly as
the commission of the crime itself. Mere presence of a person at the scene of
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 174
the crime does not make him a conspirator for conspiracy transcends
companionship.
Same; Same; Same; Treachery; Elements.—The evidence shows that George
Comadre and Danilo Lozano did not have any participation in the commission
of the crime and must therefore be set free. Their mere presence at the
scene of the crime as well as their close relationship with Antonio are
insufficient to establish conspiracy considering that they performed no
positive act in furtherance of the crime.
Same; Same; Same; Same; When the killing is perpetrated with treachery
and by means of explosives, the latter shall be considered as a qualifying
circumstance.—When the killing is perpetrated with treachery and by means
of explosives, the latter shall be considered as a qualifying circumstance. Not
only does jurisprudence support this view but also, since the use of
explosives is the principal mode of attack, reason dictates that this attendant
circumstance should qualify the offense instead of treachery which will then
be relegated merely as a generic aggravating circumstance.
Same; Same; Illegal Possession of Firearms; The amendatory law, R.A. 8294,
was enacted not to decriminalize illegal possession of firearms and
explosives, but to lower their penalties in order to rationalize them into more
acceptable and realistic levels.—With the enactment on June 6, 1997 of
Republic Act No. 8294 which also considers the use of explosives as an
aggravating circumstance, there is a need to make the necessary clarification
insofar as the legal implications of the said amendatory law vis-à-vis the
qualifying circumstance of “by means of explosion” under Article 248 of the
Revised Penal Code are concerned. Corollary thereto is the issue of which
law should be applied in the instant case. R.A. No. 8294 was a reaction to
the onerous and anachronistic penalties imposed under the old illegal
possession of firearms law, P.D. 1866, which prevailed during the tumultuous
years of the Marcos dictatorship. The amendatory law was enacted, not to
decriminalize illegal possession of firearms and explosives, but to lower their
penalties in order to rationalize them into more acceptable and realistic
levels.
Same; Same; Same; When the illegally possessed explosives are used to
commit any of the crimes under the Revised Penal Code, which result in the
death of a person, the penalty is no longer death, unlike in P.D. No. 1866,
but it shall be considered only as an aggravating circumstance.—This
legislative intent is conspicuously reflected in the reduction of the
corresponding penalties for illegal possession of firearms, or ammunitions
and other related crimes under the amendatory law. Under Section 2 of the

said law, the penalties for unlawful possession of explosives are also
lowered. Specifically, when the illegally possessed explosives are used to
commit any of the crimes under the Revised Penal Code, which result in the
death of a person, the penalty is no longer death, unlike in P.D. No. 1866,
but it shall be considered only as an aggravating circumstance.
Same; Same; Same; Congress clearly intended R.A. No. 8294 to consider as
aggravating circumstance, instead of a separate offense, illegal possession of
firearms and explosives when such possession is used to commit other
crimes under the Revised Penal Code.—With the removal of death as a
penalty and the insertion of the term “x x x as an aggravating circumstance,”
the unmistakable import is to downgrade the penalty for illegal possession of
explosives and consider its use merely as an aggravating circumstance.
Clearly, Congress intended R.A. No. 8294 to reduce the penalty for illegal
possession of firearms and explosives. Also, Congress clearly intended R.A.
No. 8294 to consider as aggravating circumstance, instead of a separate
offense, illegal possession of firearms and explosives when such possession
is used to commit other crimes under the Revised Penal Code.
Same; Same; Same; The legislative purpose of R.A. 8294 is to do away with
the use of explosives as a separate crime and to make such use merely an
aggravating circumstance in the commission of any crime already defined in
the Revised Penal Code.—It must be made clear, however, that RA No. 8294
did not amend the definition of murder under Article 248, but merely made
the use of explosives an aggravating circumstance when resorted to in
committing “any of the crimes defined in the Revised Penal Code.” The
legislative purpose is to do away with the use of explosives as a separate
crime and to make such use merely an aggravating circumstance in the
commission of any crime already defined in the Revised Penal Code. Thus,
RA No. 8294 merely added the use of unlicensed explosives as one of the
aggravating circumstances specified in Article 14 of the Revised Penal Code.
Like the aggravating circumstance of “explosion” in paragraph 12, “evident
premeditation” in paragraph 13, or “treachery” in paragraph 16 of Article 14,
the new aggravating circumstance added by RA No. 8294 does not change
the definition of murder in Article 248.
Same; Same; Same; Before the use of unlawfully possessed explosives can
be properly appreciated as an aggravating circumstance, it must be
adequately established that the possession was illegal or unlawful, i.e., the
accused is without the corresponding authority or permit to possess.—Even if
favorable to the appellant, R.A. No. 8294 still cannot be made applicable in
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 175
this case. Before the use of unlawfully possessed explosives can be properly
appreciated as an aggravating circumstance, it must be adequately
established that the possession was illegal or unlawful, i.e., the accused is
without the corresponding authority or permit to possess. This follows the
same requisites in the prosecution of crimes involving illegal possession of
firearm which is a kindred or related offense under P.D. 1866, as amended.
This proof does not obtain in the present case. Not only was it not alleged in
the information, but no evidence was adduced by the prosecution to show
that the possession by appellant of the explosive was unlawful.
Same; Same; Same; Rule 110 of the 2000 Revised Rules on Criminal
Procedure, requires the averment of aggravating circumstances for their
application.—The information in this case does not allege that appellant
Antonio Comadre had unlawfully possessed or that he had no authority to
possess the grenade that he used in the killing and attempted killings. Even
if it were alleged, its presence was not proven by the prosecution beyond
reasonable doubt. Rule 110 of the 2000 Revised Rules on Criminal
Procedure, requires the averment of aggravating circumstances for their
application.
Same; Same; Same; The underlying philosophy of complex crimes in the
Revised Penal Code, which follows the pro reo principle, is intended to favor
the accused by imposing a single penalty irrespective of the crimes
committed, the rationale being, that the accused who commits two crimes
with single criminal impulse demonstrates lesser perversity that when the
crimes are committed by different acts and several criminal resolutions.—The
underlying philosophy of complex crimes in the Revised Penal Code, which
follows the pro reo principle, is intended to favor the accused by imposing a
single penalty irrespective of the crimes committed. The rationale being, that
the accused who commits two crimes with single criminal impulse
demonstrates lesser perversity than when the crimes are committed by
different acts and several criminal resolutions.
AUTOMATIC REVIEW of a decision of the Regional Trial Court of Nueva Ecija,
Br. 39.
The facts are stated in the opinion of the Court.
     The Solicitor General for appellee.
     Domingo V. Pascua for appellants. People vs. Comadre, 431 SCRA 366,
G.R. No. 153559 June 8, 2004
PER CURIAM:

Appellants Antonio Comadre, George Comadre and Danilo Lozano were
charged with Murder with Multiple Frustrated Murder in an information which
reads:
That on or about the 6th of August 1995, at Brgy. San Pedro, Lupao, Nueva
Ecija, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and mutually helping one
another, with intent to kill and by means of treachery and evident
premeditation, availing of nighttime to afford impunity, and with the use of
an explosive, did there and then willfully, unlawfully and feloniously lob a
hand grenade that landed and eventually exploded at the roof of the house
of Jaime Agbanlog trajecting deadly shrapnels that hit and killed one
ROBERT AGBANLOG, per the death certificate, and causing Jerry Bullanday,
Jimmy Wabe, Lorenzo Eugenio, Rey Camat, Emelita Agbanlog and Elena
Agbanlog to suffer shrapnel wounds on their bodies, per the medical
certificates; thus, to the latter victims, the accused commenced all the acts
of execution that would have produced the crime of Multiple Murder as
consequences thereof but nevertheless did not produce them by reason of
the timely and able medical and surgical interventions of physicians, to the
damage and prejudice of the deceaseds heirs and the other victims.
CONTRARY TO LAW.[1]
On arraignment, appellants pleaded not guilty. [2] Trial on the merits then
ensued.
As culled from the records, at around 7:00 in the evening of August 6, 1995,
Robert Agbanlog, Jimmy Wabe, Gerry Bullanday, [3] Rey Camat and Lorenzo
Eugenio were having a drinking spree on the terrace of the house of Roberts
father, Barangay Councilman Jaime Agbanlog, situated in Barangay San
Pedro, Lupao, Nueva Ecija. Jaime Agbanlog was seated on the banister of
the terrace listening to the conversation of the companions of his son. [4]
As the drinking session went on, Robert and the others noticed appellants
Antonio Comadre, George Comadre and Danilo Lozano walking. The three
stopped in front of the house.While his companions looked on, Antonio
suddenly lobbed an object which fell on the roof of the terrace. Appellants
immediately fled by scaling the fence of a nearby school. [5]
The object, which turned out to be a hand grenade, exploded ripping a hole
in the roof of the house. Robert Agbanlog, Jimmy Wabe, Gerry Bullanday,
Rey Camat and Lorenzo Eugenio were hit by shrapnel and slumped
unconscious on the floor.[6] They were all rushed to the San Jose General
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 176
Hospital in Lupao, Nueva Ecija for medical treatment. However, Robert
Agbanlog died before reaching the hospital.[7]
Dr. Tirso de los Santos, the medico-legal officer who conducted the autopsy
on the cadaver of Robert Agbanlog, certified that the wounds sustained by
the victim were consistent with the injuries inflicted by a grenade explosion
and that the direct cause of death was hypovolemic shock due to hand
grenade explosion.[8] The surviving victims, Jimmy Wabe, Rey Camat, Jaime
Agbanlog and Gerry Bullanday sustained shrapnel injuries. [9]
SPO3 John Barraceros of the Lupao Municipal Police Station, who
investigated the scene of the crime, recovered metallic fragments at the
terrace of the Agbanlog house. These fragments were forwarded to the
Explosive Ordinance Disposal Division in Camp Crame, Quezon City, where
SPO2 Jesus Q. Mamaril, a specialist in said division, identified them as
shrapnel of an MK2 hand grenade.[10]
Denying the charges against him, appellant Antonio Comadre claimed that on
the night of August 6, 1995, he was with his wife and children watching
television in the house of his father, Patricio, and his brother, Rogelio. He
denied any participation in the incident and claimed that he was surprised
when three policemen from the Lupao Municipal Police Station went to his
house the following morning of August 7, 1995 and asked him to go with
them to the police station, where he has been detained since.[11]
Appellant George Comadre, for his part, testified that he is the brother of
Antonio Comadre and the brother-in-law of Danilo Lozano. He also denied
any involvement in the grenade-throwing incident, claiming that he was at
home when it happened. He stated that he is a friend of Rey Camat and
Jimmy Wabe, and that he had no animosity towards them whatsoever.
Appellant also claimed to be in good terms with the Agbanlogs so he has no
reason to cause them any grief.[12]
Appellant Danilo Lozano similarly denied any complicity in the crime. He
declared that he was at home with his ten year-old son on the night of
August 6, 1995. He added that he did not see Antonio and George Comadre
that night and has not seen them for quite sometime, either before or after
the incident. Like the two other appellants, Lozano denied having any
misunderstanding with Jaime Agbanlog, Robert Agbanlog and Jimmy Wabe.
[13]
Antonios father, Patricio, and his wife, Lolita, corroborated his claim that he
was at home watching television with them during the night in question.
[14]
 Josie Comadre, Georges wife, testified that her husband could not have

been among those who threw a hand grenade at the house of the Agbanlogs
because on the evening of August 6, 1995, they were resting inside their
house after working all day in the farm.[15]
After trial, the court a quo gave credence to the prosecutions evidence and
convicted appellants of the complex crime of Murder with Multiple Attempted
Murder,[16] the dispositive portion of which states:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:
1. Finding accused Antonio Comadre, George Comadre and Danilo Lozano
GUILTY beyond reasonable doubt of the complex crime of Murder with
Multiple Attempted Murder and sentencing them to suffer the imposable
penalty of death;
2. Ordering Antonio Comadre, George Comadre and Danilo Lozano to pay
jointly and severally the heirs of Robert Agbanlog P50,000.00 as
indemnification for his death, P35,000.00 as compensatory damages
and P20,000.00 as moral damages;
3. Ordering accused Antonio Comadre, George Comadre and Danilo Lozano
to pay jointly and severally Jimmy Wabe, Rey Camat, Gerry Bullanday and
Jaime Agbanlog P30,000.00 as indemnity for their attempted murder.
Costs against the accused.
SO ORDERED.
Hence, this automatic review pursuant to Article 47 of the Revised Penal
Code, as amended. Appellants contend that the trial court erred: (1) when it
did not correctly and judiciously interpret and appreciate the evidence and
thus, the miscarriage of justice was obviously omnipresent; (2) when it
imposed on the accused-appellants the supreme penalty of death despite the
evident lack of the quantum of evidence to convict them of the crime
charged beyond reasonable doubt; and (3) when it did not apply the law and
jurisprudence for the acquittal of the accused-appellants of the crime
charged.[17]
Appellants point to the inconsistencies in the sworn statements of Jimmy
Wabe, Rey Camat, Lorenzo Eugenio and Gerry Bullanday in identifying the
perpetrators. Wabe, Camat and Eugenio initially executed a Sinumpaang
Salaysay on August 7, 1995 at the hospital wherein they did not categorically
state who the culprit was but merely named Antonio Comadre as a
suspect. Gerry Bullanday declared that he suspected Antonio Comadre as
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 177
one of the culprits because he saw the latters ten year-old son bring
something in the nearby store before the explosion occurred.
On August 27, 1995, or twenty days later, they went to the police station to
give a more detailed account of the incident, this time identifying Antonio
Comadre as the perpetrator together with George Comadre and Danilo
Lozano.
A closer scrutiny of the records shows that no contradiction actually exists,
as all sworn statements pointed to the same perpetrators, namely, Antonio
Comadre, George Comadre and Danilo Lozano. Moreover, it appears that the
first statement was executed a day after the incident, when Jimmy Wabe,
Rey Camat and Lorenzo Eugenio were still in the hospital for the injuries they
sustained. Coherence could not thus be expected in view of their
condition. It is therefore not surprising for the witnesses to come up with a
more exhaustive account of the incident after they have regained their
equanimity. The lapse of twenty days between the two statements is
immaterial because said period even helped them recall some facts which
they may have initially overlooked.
Witnesses cannot be expected to remember all the details of the harrowing
event which unfolded before their eyes. Minor discrepancies might be found
in their testimony, but they do not damage the essential integrity of the
evidence in its material whole, nor should they reflect adversely on the
witness credibility as they erase suspicion that the same was perjured.
[18]
Honest inconsistencies on minor and trivial matters serve to strengthen
rather than destroy the credibility of a witness to a crime, especially so
when, as in the instant case, the crime is shocking to the conscience and
numbing to the senses.[19]
Moreover, it was not shown that witnesses Jimmy Wabe, Rey Camat,
Lorenzo Eugenio and Gerry Bullanday had any motive to testify falsely
against appellants. Absent evidence showing any reason or motive for
prosecution witnesses to perjure, the logical conclusion is that no such
improper motive exists, and their testimony is thus worthy of full faith and
credit.
The trial court is likewise correct in disregarding appellants defense of alibi
and denial. For the defense of alibi to prosper, the accused must prove not
only that he was at some other place at the time of the commission of the
crime but also that it was physically impossible for him to be at the locus
delicti or within its immediate vicinity.[20]

Apart from testifying with respect to the distance of their houses from that of
Jaime Agbanlogs residence, appellants were unable to give any explanation
and neither were they able to show that it was physically impossible for them
to be at the scene of the crime. Hence, the positive identification of the
appellants by eyewitnesses Jimmy Wabe, Jaime Agbanlog, Rey Camat and
Gerry Bullanday prevails over their defense of alibi and denial. [21]
It was established that prior to the grenade explosion, Rey Camat, Jaime
Agbanlog, Jimmy Wabe and Gerry Bullanday were able to identify the
culprits, namely, appellants Antonio Comadre, George Comadre and Danilo
Lozano because there was a lamppost in front of the house and the moon
was bright.[22]
Appellants argument that Judge Bayani V. Vargas, the Presiding Judge of the
Regional Trial Court of San Jose City, Branch 38 erred in rendering the
decision because he was not the judge who heard and tried the case is not
well taken.
It is not unusual for a judge who did not try a case to decide it on the basis
of the record for the trial judge might have died, resigned, retired,
transferred, and so forth.[23] As far back as the case of Co Tao v. Court of
Appeals[24]  we have held: The fact that the judge who heard the evidence is
not the one who rendered the judgment and that for that reason the latter
did not have the opportunity to observe the demeanor of the witnesses
during the trial but merely relied on the records of the case does not render
the judgment erroneous. This rule had been followed for quite a long time,
and there is no reason to go against the principle now. [25]
However, the trial courts finding of conspiracy will have to be
reassessed. The undisputed facts show that when Antonio Comadre was in
the act of throwing the hand grenade, George Comadre and Danilo Lozano
merely looked on without uttering a single word of encouragement or
performed any act to assist him. The trial court held that the mere presence
of George Comadre and Danilo Lozano provided encouragement and a sense
of security to Antonio Comadre, thus proving the existence of conspiracy.
We disagree.
Similar to the physical act constituting the crime itself, the elements of
conspiracy must be proven beyond reasonable doubt. Settled is the rule that
to establish conspiracy, evidence of actual cooperation rather than mere
cognizance or approval of an illegal act is required.[26]
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 178
A conspiracy must be established by positive and conclusive evidence. It
must be shown to exist as clearly and convincingly as the commission of the
crime itself. Mere presence of a person at the scene of the crime does not
make him a conspirator for conspiracy transcends companionship. [27]
The evidence shows that George Comadre and Danilo Lozano did not have
any participation in the commission of the crime and must therefore be set
free. Their mere presence at the scene of the crime as well as their close
relationship with Antonio are insufficient to establish conspiracy considering
that they performed no positive act in furtherance of the crime.
Neither was it proven that their act of running away with Antonio was an act
of giving moral assistance to his criminal act. The ratiocination of the trial
court that their presence provided encouragement and sense of security to
Antonio, is devoid of any factual basis. Such finding is not supported by the
evidence on record and cannot therefore be a valid basis of a finding of
conspiracy.
Time and again we have been guided by the principle that it would be better
to set free ten men who might be probably guilty of the crime charged than
to convict one innocent man for a crime he did not commit. [28] There being
no conspiracy, only Antonio Comadre must answer for the crime.
Coming now to Antonios liability, we find that the trial court correctly ruled
that treachery attended the commission of the crime. For treachery to be
appreciated two conditions must concur: (1) the means, method and form of
execution employed gave the person attacked no opportunity to defend
himself or retaliate; and (2) such means, methods and form of execution was
deliberately and consciously adopted by the accused. Its essence lies in the
adoption of ways to minimize or neutralize any resistance, which may be put
up by the offended party.
Appellant lobbed a grenade which fell on the roof of the terrace where the
unsuspecting victims were having a drinking spree. The suddenness of the
attack coupled with the instantaneous combustion and the tremendous
impact of the explosion did not afford the victims sufficient time to scamper
for safety, much less defend themselves; thus insuring the execution of the
crime without risk of reprisal or resistance on their part. Treachery therefore
attended the commission of the crime.
It is significant to note that aside from treachery, the information also alleges
the use of an explosive[29] as an aggravating circumstance. Since both
attendant circumstances can qualify the killing to murder under Article 248 of

the Revised Penal Code,[30] we should determine which of the two
circumstances will qualify the killing in this case.
When the killing is perpetrated with treachery and by means of explosives,
the latter shall be considered as a qualifying circumstance. Not only does
jurisprudence[31] support this view but also, since the use of explosives is the
principal mode of attack, reason dictates that this attendant circumstance
should qualify the offense instead of treachery which will then be relegated
merely as a generic aggravating circumstance.[32]
Incidentally, with the enactment on June 6, 1997 of Republic Act No.
8294[33] which also considers the use of explosives as an aggravating
circumstance, there is a need to make the necessary clarification insofar as
the legal implications of the said amendatory law vis--vis the qualifying
circumstance of by means of explosion under Article 248 of the Revised
Penal Code are concerned. Corollary thereto is the issue of which law should
be applied in the instant case.
R.A. No. 8294 was a reaction to the onerous and anachronistic penalties
imposed under the old illegal possession of firearms law, P.D. 1866, which
prevailed during the tumultuous years of the Marcos dictatorship. The
amendatory law was enacted, not to decriminalize illegal possession of
firearms and explosives, but to lower their penalties in order to rationalize
them into more acceptable and realistic levels. [34]
This legislative intent is conspicuously reflected in the reduction of the
corresponding penalties for illegal possession of firearms, or ammunitions
and other related crimes under the amendatory law. Under Section 2 of the
said law, the penalties for unlawful possession of explosives are also
lowered. Specifically, when the illegally possessed explosives are used to
commit any of the crimes under the Revised Penal Code, which result in the
death of a person, the penalty is no longer death, unlike in P.D. No. 1866,
but it shall be considered only as an aggravating circumstance. Section 3 of
P.D. No. 1866 as amended by Section 2 of R.A. 8294 now reads:
Section 2. Section 3 of Presidential Decree No. 1866, as amended, is hereby
further amended to read as follows:
Section 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession
of Explosives. The penalty of prision mayor in its maximum period
to reclusion temporal and a fine of not less than Fifty thousand pesos
(P50,000.00) shall be imposed upon any person who shall unlawfully
manufacture, assemble, deal in, acquire, dispose or possess hand
grenade(s), rifle grenade(s), and other explosives, including but not limited
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 179
to pillbox, molotov cocktail bombs, fire bombs, or other incendiary devices
capable of producing destructive effect on contiguous objects or causing
injury or death to any person.
When a person commits any of the crimes defined in the Revised
Penal Code or special law with the use of the aforementioned
explosives, detonation agents or incendiary devises, which results
in the death of any person or persons, the use of such explosives,
detonation agents or incendiary devices shall be considered as an
aggravating circumstance. (shall be punished with the penalty of
death is DELETED.)
x x x x x x x x x.
With the removal of death as a penalty and the insertion of the term xxx as
an aggravating circumstance, the unmistakable import is to downgrade the
penalty for illegal possession of explosives and consider its use merely as an
aggravating circumstance.
Clearly, Congress intended R.A. No. 8294 to reduce the penalty for illegal
possession of firearms and explosives. Also, Congress clearly intended RA
No. 8294 to consider as aggravating circumstance, instead of a separate
offense, illegal possession of firearms and explosives when such possession
is used to commit other crimes under the Revised Penal Code.
It must be made clear, however, that RA No. 8294 did not amend the
definition of murder under Article 248, but merely made the use of
explosives an aggravating circumstance when resorted to in committing any
of the crimes defined in the Revised Penal Code. The legislative purpose is to
do away with the use of explosives as a separate crime and to make such
use merely an aggravating circumstance in the commission of any crime
already defined in the Revised Penal Code. Thus, RA No. 8294 merely added
the use of unlicensed explosives as one of the aggravating circumstances
specified in Article 14 of the Revised Penal Code. Like the aggravating
circumstance of explosion in paragraph 12, evident premeditation in
paragraph 13, or treachery in paragraph 16 of Article 14, the new
aggravating circumstance added by RA No. 8294 does not change the
definition of murder in Article 248.
Nonetheless, even if favorable to the appellant, R.A. No. 8294 still cannot be
made applicable in this case. Before the use of unlawfully possessed
explosives can be properly appreciated as an aggravating circumstance, it
must be adequately established that the possession was illegal or
unlawful, i.e., the accused is without the corresponding authority or permit

to possess. This follows the same requisites in the prosecution of crimes
involving illegal possession of firearm[35] which is a kindred or related offense
under P.D. 1866, as amended. This proof does not obtain in the present
case. Not only was it not alleged in the information, but no evidence was
adduced by the prosecution to show that the possession by appellant of the
explosive was unlawful.
It is worthy to note that the above requirement of illegality is borne out by
the provisions of the law itself, in conjunction with the pertinent tenets of
legal hermeneutics.
A reading of the title[36] of R.A. No. 8294 will show that the qualifier
illegal/unlawful ...possession is followed by of firearms, ammunition, or
explosives or instruments... Although the term ammunition is separated from
explosives by the disjunctive word or, it does not mean that explosives are
no longer included in the items which can be illegally/unlawfully
possessed. In this context, the disjunctive word or is not used to separate
but to signify a succession or to conjoin the enumerated items together.
[37]
 Moreover, Section 2 of R.A. 8294,[38] subtitled: Section 3.Unlawful
Manufacture, Sale, Acquisition, Disposition or Possession of Explosives,
clearly refers to the unlawful manufacture, sale, or possession
of explosives.
What the law emphasizes is the acts lack of authority. Thus, when the
second paragraph of Section 3, P.D. No. 1866, as amended by RA No. 8294
speaks of the use of the aforementioned explosives, etc. as an aggravating
circumstance in the commission of crimes, it refers to those explosives, etc.
unlawfully manufactured, assembled, dealt in, acquired, disposed or
possessed mentioned in the first paragraph of the same section. What is per
se aggravating is the use of unlawfully manufactured or possessed
explosives. The mere use of explosives is not.
The information in this case does not allege that appellant Antonio Comadre
had unlawfully possessed or that he had no authority to possess the grenade
that he used in the killing and attempted killings. Even if it were alleged, its
presence was not proven by the prosecution beyond reasonable doubt. Rule
110 of the 2000 Revised Rules on Criminal Procedure requires the averment
of aggravating circumstances for their application.[39]
The inapplicability of R.A. 8294 having been made manifest, the crime
committed is Murder committed by means of explosion in accordance with
Article 248 (3) of the Revised Penal Code. The same, having been alleged in
the Information, may be properly considered as appellant was sufficiently
informed of the nature of the accusation against him.[40]
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 180
The trial court found appellant guilty of the complex crime of murder with
multiple attempted murder under Article 48 of the Revised Penal Code, which
provides:
Art. 48. Penalty for complex crimes. When a single act constitutes two or
more grave or less grave felonies, or when an offense is a necessary means
of committing the other, the penalty for the most serious crime shall be
imposed, the same to be applied in its maximum period.
The underlying philosophy of complex crimes in the Revised Penal Code,
which follows the pro reo principle, is intended to favor the accused by
imposing a single penalty irrespective of the crimes committed. The rationale
being, that the accused who commits two crimes with single criminal impulse
demonstrates lesser perversity than when the crimes are committed by
different acts and several criminal resolutions.
The single act by appellant of detonating a hand grenade may quantitatively
constitute a cluster of several separate and distinct offenses, yet these
component criminal offenses should be considered only as a single crime in
law on which a single penalty is imposed because the offender was impelled
by a single criminal impulse which shows his lesser degree of perversity. [41]
Under the aforecited article, when a single act constitutes two or more grave
or less grave felonies the penalty for the most serious crime shall be
imposed, the same to be applied in its maximum period irrespective of the
presence of modifying circumstances, including the generic aggravating
circumstance of treachery in this case.[42] Applying the aforesaid provision of
law, the maximum penalty for the most serious crime (murder) is death. The
trial court, therefore, correctly imposed the death penalty.
Three justices of the Court, however, continue to maintain the
unconstitutionality of R.A. 7659 insofar as it prescribes the death penalty.
Nevertheless, they submit to the ruling of the majority to the effect that the
law is constitutional and that the death penalty can be lawfully imposed in
the case at bar.
Finally, the trial court awarded to the parents of the victim Robert Agbanlog
civil indemnity in the amount of P50,000.00, P35,000.00 as compensatory
damages and P20,000.00 as moral damages. Pursuant to existing
jurisprudence[43] the award of civil indemnity is proper. However, the actual
damages awarded to the heirs of Robert Agbanlog should be modified,
considering that the prosecution was able to substantiate only the amount of
P18,000.00 as funeral expenses.[44]

The award of moral damages is appropriate there being evidence to show
emotional suffering on the part of the heirs of the deceased, but the same
must be increased to P50,000.00 in accordance with prevailing judicial policy.
[45]
With respect to the surviving victims Jaime Agbanlog, Jimmy Wabe, Rey
Camat and Gerry Bullanday, the trial court awarded P30,000.00 each for the
injuries they sustained. We find this award inappropriate because they were
not able to present a single receipt to substantiate their claims. Nonetheless,
since it appears that they are entitled to actual damages although the
amount thereof cannot be determined, they should be awarded temperate
damages of P25,000.00 each.[46]
WHEREFORE, in view of all the foregoing, the appealed decision of the
Regional Trial Court of San Jose City, Branch 39 in Criminal Case No. L-
16(95) is AFFIRMED insofar as appellant Antonio Comadre is convicted of the
complex crime of Murder with Multiple Attempted Murder and sentenced to
suffer the penalty of death. He is ordered to pay the heirs of the victim the
amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages and
P18,000.00 as actual damages and likewise ordered to pay the surviving
victims, Jaime Agbanlog, Jimmy Wabe, Rey Camat and Gerry Bullanday,
P25,000.00 each as temperate damages for the injuries they sustained.
Appellants Gregorio Comadre and Danilo Lozano are ACQUITTED for lack of
evidence to establish conspiracy, and they are hereby ordered immediately
RELEASED from confinement unless they are lawfully held in custody for
another cause. Costs de oficio.
In accordance with Section 25 of Republic Act 7659 amending Article 83 of
the Revised Penal Code, upon finality of this Decision, let the records of this
case be forwarded to the Office of the President for possible exercise of
pardoning power.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales,
Azcuna  and Tinga, JJ.,  concur.
Callejo, Sr., J., see concurring and dissenting opinion.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 181
G.R. Nos. 154348-50. June 8, 2004.*
PEOPLE OF THE PHILIPPINES, appellee, vs. PABLO DELA CRUZ,
appellant.
Criminal Law; Murder; Evidence; Treachery; Requisites for Treachery to
Exist.—We have consistently ruled that there is treachery when the offender
commits any of the crimes against persons, employing means, methods or
forms in the execution thereof which tend directly and specially to insure its
execution without risk to himself arising from the defense which the offended
party might make. Two conditions must concur for treachery to exist,
namely: (a) the employment of means of execution that gave the person
attacked no opportunity to defend himself or to retaliate; and (b) the means
or method of execution was deliberately and consciously adopted.
Same; Same; Same; Same; While a victim may have been warned of
possible danger to his person, in treachery, what is decisive is that the attack
was executed in such a manner as to make it impossible for the victim to
retaliate.—While it is true that Tacaldo and Florencio noticed the commotion
moments before they were attacked, this fact alone does not rule out the
presence of treachery. We have held that while a victim may have been
warned of possible danger to his person, in treachery, what is decisive is that
the attack was executed in such a manner as to make it impossible for the
victim to retaliate. The case at bar typifies this doctrine for Tacaldo and
Florencio had no opportunity to defend themselves precisely because they
did not expect to be the subject of any further attack by appellant. Thus,
from the evidence adduced, the stabbing, although frontal, was so
unexpected and sudden that it left the victims, all unarmed, with no
opportunity to put up a defense.
APPEAL from a decision of the Regional Trial Court of Dumaguete City, Br.
34.

The facts are stated in the opinion of the Court.
     The Solicitor General for appellee.
     Public Attorney’s Office for appellant. People vs. Dela Cruz, 431 SCRA
388, G.R. Nos. 154348-50 June 8, 2004FIRST DIVISION
YNARES-SANTIAGO, J.:
This is an appeal from the decision[1] of the Regional Trial Court of
Dumaguete City, Negros Oriental, Branch 34 in Criminal Case Nos. 12445,
12446 and 12452 which found appellant Pablo dela Cruz alias Pablito dela
Cruz guilty of the crimes of murder and two counts of frustrated murder,
respectively.
The Information[2] in Criminal Case No. 12445 charged appellant with the
crime of murder committed as follows:
That on or about 11:00 oclock in the morning of December 15, 1995, at the
public market of Sta. Catalina, Negros Oriental, 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, willfully,
unlawfully, and feloniously ATTACK, ASSAULT and STAB one Victoriano
Francisco, a sickly old man aging 81 years, with the use of a hunting knife
with which said accused provided himself at that time, thereby causing a
fatal injury on the body of said Victoriano Francisco, who died
instantaneously as a result thereof, to the damage and prejudice of the heirs
of the same victim.
An Act defined and penalized by Article 248 of the Revised Penal Code.
In Criminal Case No. 12446, appellant is charged with the crime of frustrated
murder, in an Information[3] which reads:
That on or about 11:00 oclock in the morning of December 15, 1995, at the
public market of Sta. Catalina, Negros Oriental, 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 willfully,
unlawfully, and feloniously ATTACK, ASSAULT and STAB one Felipe Pajunar
with the use of a hunting knife with which said accused provided himself at
that time, thereby causing a fatal injury on the body of said Felipe Pajunar,
thus performing all the acts of execution which would produce the crime of
Murder as a consequence but which, nevertheless, did not produce it by
reason of causes independent of the will of the perpetrator, that is, by the
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 182
timely medical attendance, to the damage and prejudice of the same
offended party.
An Act defined and penalized by Article 248, in relation to Article 6 and
Article 50, of the Revised Penal Code.
The third Information,[4] charging appellant with the crime of frustrated
murder in Criminal Case No. 12452, reads:
That on December 15, 1995, at about 11:00 oclock in the morning at Santa
Catalina, Negros Oriental, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, with treachery and intent to kill,
did then and there willfully, unlawfully and feloniously attack, assault and
stab one WILLIAM TACALDO, with the use of a deadly weapon with which
said accused was then armed and provided, thereby inflicting upon the
latter--
1. Stab wound, left subcostal area, penetrating thoraco abdominal cavity
with injury to kidney left, jejunum #1;
2. hacking wound, anterior middle third forearm 4 cm sutured
thus performing all the acts of execution which would produce the crime of
Murder as a consequence but which, nevertheless, did not produce it by
reason of the timely medical treatment of said victim, to his damage and
prejudice.
That the crime was attended by the aggravating circumstance of disregard of
the respect due the offended party on account of his age who, at the time of
the incident, was already an old man 68 years old.
CONTRARY TO ARTICLE 248, IN RELATION TO ARTICLE 6, SECOND
PARAGRAPH OF THE REVISED PENAL CODE OF THE PHILIPPINES, AS
AMENDED.
The three cases were consolidated and tried jointly upon agreement of the
parties.
Felipe Pajunar, the victim in Criminal Case No. 12446, testified that on
December 15, 1995, at past 11:00 oclock in the morning, he was at the
public market of Sta. Catalina to buy biscuits and candies for his childs
exchange gift. When he was about to leave the market, he was summoned
by his cousin, Paulino Tabuay, to join his group for a round of local wine
(tuba), to which Felipe acceded. The other men in the group were Victoriano

Francisco, the victim in Criminal Case No. 12445, and Agaton Rubia. All three
of them were seated outside the store of a certain Julie Calidquid. [5]
While the group was conversing, two unidentified men approached their
table. One of the men, whom Felipe later identified as appellant Pablo dela
Cruz, asked for a glass of tuba from Paulino. Paulino willingly obliged but
appellant refused to accept the glass offered to him, saying it might contain
poison. To show appellant that it did not, Paulino drank the glass of tuba he
was offering and refilled it for appellant, who then drank without
hesitation. Appellant joined the group and sat with Felipe on his right and
Victoriano on his left. Suddenly, appellant placed his right arm around Felipe
and, with his left hand, stabbed him, whispering, Pinaskuhan nako nimo
Brod. (This is my Christmas gift to you, Brod.) Felipe was wounded on his
left chest and fell down. Immediately thereafter, appellant turned to
Victoriano and stabbed him. Victoriano was rushed to the Bayawan District
Hospital where he was declared dead on arrival. Felipe recalled that
appellant used a hunting knife, more or less six inches long. [6] He also
recalled having seen victim William Tacaldo with Juan Florencio inside the
public market stall typing some documents.[7]
For his injuries, Felipe was brought to the Bayawan District Hospital where
he was treated by Dr. Lydia Villaflores. He was later transferred to the
Negros Oriental Provincial Hospital where he was confined for four
days. Felipe learned that the name of his and Victorianos attacker was Pablo
dela Cruz. Later, he identified appellant in open court. Felipe testified that
due to the incident he was unable to work for almost a year and thus lost his
P200.00 per week income for plowing services. He also presented receipts of
his expenses for medicines totaling P1,600.00 and claimed that he spent
P10,000.00 for hospitalization and traveling expenses to and from the
hospital.[8]
William Tacaldo, the victim in Criminal Case No. 12452, testified that he
made a living from his typing services in one of the stalls of the Sta. Catalina
public market. On the day of the incident, he was typing a church program
for Juan Florencio when a commotion broke out about two meters away. He
continued with his typing until he was suddenly stabbed right below his
heart. He stood up, pressed his wound to control the bleeding and cried for
help. He was brought to the Bayawan District Hospital and was later
transferred to the Negros Oriental Provincial Hospital where he was operated
on.[9]
Tacaldo testified that he failed to recognize the person who stabbed him
since he was concentrated on his typing when the incident happened. During
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 183
the police investigation, he learned the name of his assailant. Tacaldo
alleged that as a result of his injury, he lost his eyesight and could no longer
type, resulting in the loss of his income of around P200.00 to P250.00 a day.
[10]
Juan Florencio was also stabbed but did not file a complaint against
appellant. He corroborated the testimonies of Felipe and Tacaldo. He
narrated that in the morning of December 15, 1995, he was in one of the
stalls of the public market dictating a document to Tacaldo. He noticed
Felipe, Victoriano and two other persons drinking at a store about two
meters away.Shortly after, there was a commotion in front of the store. He
saw Felipe being stabbed by a person whom he later learned was appellant
Pablo dela Cruz. Appellant also stabbed Victoriano, who became unconscious
and fell down. Thereafter, appellant stabbed Tacaldo while he was seated in
front of his typewriter.[11]
After stabbing Tacaldo, appellant turned his attention to Florencio, who then
ran away. Appellant was able to catch up with Florencio and stabbed him on
the back. Appellant stumbled and fell to the ground, and Florencio was able
to escape from further harm. He was treated at the Bayawan District
Hospital by Dr. Lydia Villaflores.[12]
PO3 Rolando Gomez, who was in the vicinity of the market place, heard
people shouting and saw some persons scampering away. Several by-
standers told him that there was a stabbing incident and that the assailant
ran away. At that instant, he saw appellant Pablo dela Cruz running away
brandishing a hunting knife. He chased appellant and fired a warning
shot.Instead of yielding, appellant turned around and started to attack PO3
Gomez, who shot appellant on the left thigh. PO3 Gomez confiscated the
hunting knife and brought appellant to the Sta. Catalina Police Station where
PO3 Louie Bantuto conducted an investigation. Subsequently, he brought
appellant to Bayawan District Hospital for medical treatment. [13]
PO3 Bantuto corroborated the testimony of PO3 Gomez that an investigation
was conducted when the appellant was brought to the police station. PO3
Bantuto reflected the stabbing incident in the police blotter, [14] a copy of
which was presented as evidence in court.[15]
Dr. Lydia Villaflores was presented to testify on the death of Victoriano
Francisco as well as the injuries suffered by Felipe Pajunar, William Tocaldo
and Juan Florencio. Victoriano suffered a two-inch long incised wound at the
anterior chest and a similar wound at the arm. The wound on Victorianos
chest was fatal as it damaged blood vessels in the abdomen causing a
massive loss of blood. Victoriano was pronounced dead on arrival.[16]

Dr. Villaflores further testified that Felipe Pajunar suffered an incised wound
on the left side of the lumbar area, which was fatal since it was located at
the anterior chest. On the other hand, William Tacaldo suffered an incised
wound on the anterior chest and another on the arm. The wound on the
anterior chest was dangerous and could have caused instantaneous death if
left untreated. Juan Florencio sustained an incised wound on the left lumbar
area.[17]
Another medical expert, Dr. Henrissa M. Calumpang, testified that she
examined Felipe, and found that the latters wound was already sutured. She
opined that the wound was not fatal and could not cause instantaneous
death as it was only superficial.[18] Tacaldo, on the other hand, was confined
in the hospital for a longer period of time due to the stab wound he
sustained at the back that also injured his left kidney. Dr. Calumpang stated
that this wound was fatal since Tacaldos abdominal and thoracic cavities
were penetrated. Likewise, as a result of the accumulation of blood in his
abdominal cavity, Tacaldo experienced shock due to the loss of blood. [19]
Evangeline Mira testified that she is the daughter of the deceased Victoriano
Francisco who was 81 years old when he died. Their family spent P30,000.00
for her fathers coffin and embalment, P1,000.00 per day of the wake which
lasted for nine days, P6,000.00 for the burial expenses and P10,000.00 for
the tombstone. She likewise claimed that they spent P6,000.00 during the
last prayer for her father and P400.00 for the funeral mass.[20]
Appellant Pablo dela Cruz testified and admitted that he inflicted wounds on
Tacaldo and another person who boxed him outside the public market of Sta.
Catalina on December 15, 1995. He denied any involvement in the death of
Victoriano and in the wounding of Felipe on the date of the incident, saying
he did not even know them. Appellant testified that on the day of the
incident, he went to the public market to buy fish. While he was there, he
was boxed by a drunken person whom he could only recognize by face. This
person was in the same line of work as he was and they had a previous
altercation. Appellant testified further that upon being boxed by said person,
he immediately ducked under a table and when he came out at the other
side, he saw a butchers knife and picked it up. He used this to ward off his
attackers.[21]
Dr. Angel V. Somera, a witness for the defense testified that based on his
examination, appellant is essentially normal considering that no gross
pathological or abnormal thought processes like delusions, hallucinations and
illusions were revealed. Appellant was coherent in answering the questions
Dr. Somera asked during the examination and his memory of the past as well
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 184
as recent events were well within normal bounds. However, according to Dr.
Somera, appellant has a certain degree of paranoia which may be attributed
to his level of education. This paranoia, however, is still normal for a person
who is uneducated and has been living in the mountains. Thus, appellant is
non-psychotic, meaning he is not insane.[22]
The defense also recalled to the witness stand PO3 Louie Bantuto to testify
on the mental condition of appellant at the time he was investigated by the
police. PO3 Bantuto admitted that he indicated in the police blotter his
observation that appellant was mentally ill because of appellants
appearance. He noticed that when appellant was brought to the police
station, he had bottles containing oil around his waist. [23]
A decision was rendered by the trial court finding appellant guilty of the
crime of Murder in Criminal Case No. 12445 and sentenced to suffer the
penalty of Reclusion Perpetua; guilty of the crime of Frustrated Murder in
Criminal Case No. 12446 and 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; and guilty of the crime of Frustrated Murder in
Criminal Case No. 12452 and 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 Victoriano
Francisco the sum of P50,000.00 as civil indemnity, and to pay Felipe
Pajunar the sum of P1,495.60 as actual damages.
Hence, this appeal, on a lone assignment of error, to wit:
THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED GUILTY
BEYOND REASONABLE DOUBT DESPITE FAILURE OF THE PROSECUTION TO
PROVE HIS GUILT BEYOND REASONABLE DOUBT.
We agree with the Solicitor Generals observation that while appellant assails
the decision of the trial court, the discussion in the Appellants Brief was
limited to the trial courts findings that treachery attended the crimes. The
defense argues that treachery was not present since the victims Victoriano
and Felipe ought to have been put on guard by the appearance and
actuations of appellant when the latter approached them. Tacaldo was
already aware of the commotion moments before he was stabbed, giving
him sufficient time to prepare and defend himself. Thus, the defense prays
that appellant be found guilty of the lesser offenses of homicide, frustrated
homicide and attempted homicide in the respective cases.

There is sufficient evidence on record showing that appellant Pablo dela Cruz
is responsible for the death of Victoriano Francisco and the wounding of
Felipe Pajunar and William Tacaldo. Felipes recollection of the events in the
morning of December 15, 1995 was direct, spontaneous and consistent. His
positive identification of appellant in open court as the person who stabbed
him and then later Victoriano was likewise unerring. More importantly,
Felipes testimony was corroborated in all its material points by the testimony
of Juan Florencio who testified that he saw appellant stab Felipe and then
Victoriano before stabbing Tacaldo and himself.
Furthermore, it has not been shown that either Felipe or Juan Florencio was
motivated by any ill will to testify falsely against appellant. Felipe admitted
that he did not know appellant personally and only learned his name during
the investigation. Juan Florencio, a church pastor, is not even a complainant,
although he himself was injured in the incident. Nonetheless, he testified and
recounted what he saw.
It appears that the only issue to be resolved is appellants degree of
culpability. The defense disputes the trial courts findings that treachery
attended the stabbings or that appellant consciously adopted such mode of
attack to perpetrate the crimes.[24] The prosecution, on the other hand,
argues that the totality of the circumstances lead to the inevitable conclusion
that all the victims were caught unaware and unable to defend themselves
because appellant deliberately chose a manner of attack which insured the
attainment of his violent intentions with minimum risk to him. [25]
We have consistently ruled that there is treachery when the offender
commits any of the crimes against persons, employing means, methods or
forms in the execution thereof which tend directly and specially to insure its
execution without risk to himself arising from the defense which the offended
party might make.[26] Two conditions must concur for treachery to exist,
namely: (a) the employment of means of execution that gave the person
attacked no opportunity to defend himself or to retaliate; and (b) the means
or method of execution was deliberately and consciously adopted. [27]
In the case at bar, the trial court correctly appreciated the element of
treachery that attended the stabbing incident. Indeed, the essence of
treachery is the swift and unexpected attack on an unarmed victim without
the slightest provocation on the part of the victim. [28] As recounted by the
witnesses, victims Victoriano and Felipe were drinking with two other
persons when appellant approached them asking for a glass of tuba. The
group graciously accommodated appellant and gave him a drink. There is
nothing in the records to conclusively show that the stabbing was preceded
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 185
by an altercation or that any of the victims gave the slightest
provocation. Although Felipe was seated among his friends at the time he
was stabbed, this did not afford him any protection since his companions
were likewise caught off-guard by the suddenness of the unprovoked
attack. Moreover, appellants act of putting his right arm around Felipes
shoulder right before stabbing Felipe ensured that his victim would not be
able to dodge his attack. By whispering Pinaskuhan nako nimo ni, Brod. (This
is my Christmas gift to you, Brod.), appellant displayed a consciousness of
action uncharacteristic of one who is mentally ill as the defense would like to
portray him.
The attack on Victoriano is likewise unexpected since he was still reeling
from the shock at having witnessed the stabbing of Felipe. It must also be
noted that Victoriano was 81 years old at the time of the stabbing and his
reflexes were worn down by age and by the alcohol he had
consumed. Hence, he was not in a position to ward off the attack. The same
may be said of the attacks on William Tacaldo and Juan Florencio. While it is
true that Tacaldo and Florencio noticed the commotion moments before they
were attacked, this fact alone does not rule out the presence of
treachery. We have held that while a victim may have been warned of
possible danger to his person, in treachery, what is decisive is that the attack
was executed in such a manner as to make it impossible for the victim to
retaliate.[29] The case at bar typifies this doctrine for Tacaldo and Florencio
had no opportunity to defend themselves precisely because they did not
expect to be the subject of any further attack by appellant. Thus, from the
evidence adduced, the stabbing, although frontal, was so unexpected and
sudden that it left the victims, all unarmed, with no opportunity to put up a
defense.[30]
We agree, however, with the argument of the Solicitor General that for the
injuries he inflicted on Felipe Pajunar, appellant should be charged only of
Attempted Murder instead of Frustrated Murder. To be liable for the
frustrated stage of a felony, the offender must perform 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.[31] The testimonies of the medical experts show that the
wound inflicted was not of the kind which could have caused instantaneous
death. According to the testimony of Dr. Calumpang, the only way by which
Felipes life would have been endangered was if the wound developed a
major infection.[32] In fact, Felipe was only confined at the NOPH for a few
days after which he was allowed to go home and recuperate.

Therefore, the crime committed by appellant in Criminal Case No. 12445
involving Victoriano Francisco is Murder which is penalized under Article 248
of the Revised Penal Code with reclusion perpetua  to death. Considering that
there was no mitigating or aggravating circumstance, the imposition of the
lesser penalty of the two indivisible penalties, reclusion perpetua, is proper.
In Criminal Case No. 12452 involving William Tacaldo, appellant was
correctly found to have committed the crime of Frustrated Murder which,
under Article 250 of the Revised Penal Code, is punishable by the penalty
one degree lower than that which should be imposed for consummated
murder; thus, reclusion temporal pursuant to Article 61(2) of the Revised
Penal Code. The alleged aggravating circumstance in this case, that is,
disregard of respect due the offended party on account of age, cannot be
appreciated since it was not shown that appellant deliberately intended to
offend or insult the age of the offended party. [33] Hence, the penalty must be
applied in its medium period. Applying the Indeterminate Sentence Law, the
minimum term for the indeterminate sentence shall be within the range
of prision mayor while the maximum term of the sentence shall be within the
range of reclusion temporal medium. Thus, we find the penalty imposed by
the trial court in this case to be in order.
In Criminal Case No. 12446 involving Felipe Pajunar, appellant should be
convicted of the crime of Attempted Murder which, under Article 51 of the
Revised Penal Code, is punishable with the penalty two degrees lower than
that prescribed for the consummated felony. Accordingly, the imposable
penalty is prision mayor. Absent any mitigating or aggravating circumstance,
the penalty should be applied in its medium period. Applying the
Indeterminate Sentence Law, the minimum of the penalty to be imposed
should be within the range of prision correccional, and the maximum of the
penalty to be imposed should be within the range of prision mayor in its
medium period. Hence, for the crime of Attempted Murder, appellant should
be sentenced to suffer the penalty of imprisonment from Two (2) years, Four
(4) months and One (1) day of prision correccional, as minimum, to Eight (8)
years and One (1) day of prision mayor, as maximum.
We now turn to the issue of damages. In the case involving Victoriano
Francisco, we affirm the trial courts award of P50,000.00 as civil
indemnity ex delicto in favor of Victorianos heirs, which award is mandatory
and requires no proof other than the victims death.[34] While no actual
damages may be awarded because no competent evidence in the form of
receipts was presented, temperate damages may be recovered under Article
2224 of the Civil Code as the Court finds that some pecuniary loss has been
suffered but its amount cannot be proved with certainty. Consistent with
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 186
current jurisprudence, the amount of P25,000.00 is also awarded to
Victorianos heirs considering that it is not disputed that the family incurred
expenses for the wake and burial of the victim.[35]
The award by the trial court of actual damages in the amount of P1,495.60
to Felipe Pajunar is supported by the evidence and must be affirmed.
WHEREFORE, in view of the foregoing, the appealed decision of the Regional
Trial Court of Dumaguete City, Negros Oriental, Branch 34 in Criminal Case
Nos. 12445, 12446 and 12452, is MODIFIED.
As modified, appellant Pablo Pablito dela Cruz is found guilty beyond
reasonable doubt of the crime of Murder in Criminal Case No. 12445, and
sentenced to suffer the penalty of reclusion perpetua. He is likewise
adjudged to indemnify the heirs of the deceased, Victoriano Francisco, the
sum of Fifty Thousand Pesos (P50,000.00) as civil indemnity ex delicto and
Twenty Five Thousand Pesos (P25,000.00) as temperate damages.
In Criminal Case No. 12446, appellant Pablo dela Cruz is likewise found guilty
beyond reasonable doubt of the crime Attempted Murder for which he is
sentenced to suffer the indeterminate penalty of imprisonment ranging from
Two (2) years, Four (4) months and One (1) day of prision correccional, as
minimum, to Eight (8) years and One (1) day of prision mayor, as maximum.
He is likewise ordered to indemnify victim Felipe Pajunar the sum of One
Thousand Four Hundred Ninety Five Pesos and Sixty Centavos (P1,495.60)
as actual damages.
In Criminal Case No. 12452, appellant Pablo dela Cruz is found guilty beyond
reasonable doubt of the crime of Frustrated Murder, and sentenced to suffer
the indeterminate penalty of imprisonment ranging from 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.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Panganiban, Carpio,  and  Azcuna, JJ.,  concur.
FIRST DIVISION
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 187

G.R. No. 153213. January 22, 2004.*

PEOPLE OF THE PHILIPPINES, appellee, vs. RICARDO LATAG alias

“CARDO”, appellant.

Criminal Law; Witnesses; Intoxication; In the normal and usual round of

drinks among friends, it is doubtful whether, within one hour, the average
drinker would be in such state of intoxication as to mistake a familiar person
for another.—That the intoxication of Atienza might have impaired his vision
is highly speculative, being based on pure conjecture. No evidence was ever
presented to support the claim that he had already been intoxicated. It must
be noted that there were 12 men drinking on that fateful night. In the
normal and usual round of drinks among friends, it is doubtful whether,
within one hour, the average drinker would be in such state of intoxication as
to mistake a familiar person for another.

Same; Homicide; Aggravating Circumstances; Treachery; The fact that the

accused was standing behind some shrubs when he shot the victim does not
by itself sufficiently establish that the method of execution gave the latter no
opportunity for self-defense; Treachery cannot be presumed where the lone
witness has not actually seen the commencement of the attack.—In the
present case, we find nothing in the records that shows the exact manner of
the killing. Though Atienza turned around immediately after hearing a
gunshot, he could not, and in fact did not, testify as to how the attack had
been initiated. The fact that appellant was standing behind some shrubs
when he shot the victim does not by itself sufficiently establish that the
method of execution gave the latter no opportunity for self-defense. Nor was
the attack deliberately and consciously adopted by the former without
danger to himself. Treachery cannot be presumed where the lone witness
has not actually seen the commencement of the attack.

APPEAL from a decision of the Regional Trial Court of Lipa City, Batangas, Br.
12.
The facts are stated in the opinion of the Court.
     The Solicitor General for plaintiff-appellee.
     Public Attorney’s Office for accused-appellant.
DECISION
PANGANIBAN,  J.:
Treachery as a qualifying circumstance must be proven as clearly and as
convincingly as the killing itself. In the present case, since no qualifying
circumstance was proven beyond reasonable doubt, the crime is homicide,
not murder.
The Case
Ricardo Latag alias Cardo appeals the February 27, 2002 Decision[1] of the
Regional Trial Court (RTC) of Lipa City (Branch 12) in Criminal Case No.
0083-2000, finding him guilty of murder and sentencing him to reclusion
perpetua. The dispositive part of the RTC Decision is worded thus:
WHEREFORE, the Court finds the accused, RICARDO LATAG alias CARDO,
guilty beyond reasonable doubt, as principal by direct participation, of the
crime of Murder, as defined and penalized under Article 248 of the Revised
Penal Code, without any modifying circumstance, and sentences him to
suffer the penalty of RECLUSION PERPETUA, with all its accessory penalties,
and to pay the costs of this suit.
The accused is also ordered to pay to the heirs of Judie Acosta the sums
of P50,000.00, as indemnification for his death, and P80,000.00, as actual
damages.[2]
The Information[3] dated February 7, 2000, charged appellant as follows:
That on or about the 31st day of December, 1999 at about 8:00 oclock in the
evening at Brgy. Tanguay, Lipa City, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, while armed with a firearm
(cal. 22), with intent to kill and with treachery, did then and there wilfully,
unlawfully and feloniously attack, assault and shoot with the use of said
firearm (cal. 22) suddenly and without warning one Judie Acosta thereby
inflicting upon the latter gunshot wound on his body which directly caused
his death.[4]
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 188
Upon his arraignment on September 6, 2000,[5] appellant, assisted by his
counsel,[6] pleaded not guilty. After trial in due course, the court a
quo rendered the assailed Decision.
The Facts
Version of the Prosecution
In its Brief, the Office of the Solicitor General (OSG) presents the
prosecutions version of the facts as follows:
On December 31, 1999, at 7:00 in the evening, prosecution witness
Alejandro Atienza, Armando Lumbera, Norberto Africa, Alfredo Lumbera,
Angelito Africa, a certain Ka Nardo and Ka Efren, together with victim Judie
Acosta were celebrating New Years eve at the back of the house of a certain
Carlos Librea at Barangay Tanguay, Lipa City. The group was in a long table
and happily drinking Gilbeys gin to welcome the new year. Victim Judie
Acosta was at the left side of the long table and was seated between
prosecution witness Alejandro Atienza and Jun Africa, at the far end left of
the long table.
While they were celebrating in a festive mood, a gunshot was heard coming
from the direction of the left side of the long table they were
occupying. Thereafter, prosecution witness Alejandro Atienza looked towards
the direction where the gunshot was heard and saw accused-appellant
Ricardo Latag holding a firearm (caliber .22) and standing behind the San
Francisco shrubs which served as fence of the yard of Carlos Libreas house.
In the aftermath of the gunshot report, the victim Judie Acosta shouted Kuya
Caloy, may tama ako. He was later found to have been hit at the left back
portion of his armpit. Accused-appellant Ricardo Latag, while still holding a
firearm fled towards the east. The victim was later brought to the hospital by
his father but later succumbed to the gunshot wound.
The autopsy report dated December 31, 1999 showed the following findings:
x x x x x x x x x
A. EXTERNAL FINDINGS:
1. Gunshot wound, entrance, measuring 0.5 x 0.5 cm., at the level of the
7th intercostal space, postaxillary area, left
2. No exit wound but bullet was found embedded at the skin, lumbar area,
posterior right

B. INTERNAL FINDINGS:
1. Hemothorax liters
2. (+) Perforation Lower lobe of the left lung
3. (+) Perforation Diaphragm, left
4. (+) Perforation Fundus of the stomach
5. (+) Perforation Descending Thoracic Aorta
CAUSE OF DEATH:
CARDIORESPIRATORY ARREST SECONDARY TO HYPOVOLEMIA SECONDARY
TO GUNSHOT WOUND.[7] (Citations omitted)
Version of the Defense
The defense states its version of the facts in the following manner:
Ricardo Latag alias Cardo averred that on December 31, 1999 at around
6:00 oclock in the evening, he was at the house of Cristino Kalaw looking for
Romeo Kalaw to seek the latters help in applying for a job with a certain Mr.
Puno. Since Romero was not home, Cristino accompanied him to the place
where Romeo was. Upon seeing Romeo, he informed him of his
intention. Cristino and he left at around 7:00 oclock in the evening. After
parting ways with Cristino, he met his barkada, Jay Tolentino, who invited
him to drink at the latters house. Jay Tolentino, Simeon Tolentino (Jays
father) and he finished drinking three (3) bottles of gin at around 10:00
oclock in the evening. After which, Jay accompanied him to the tricycle
station. He got home at 11:00 in the evening.
He is not on speaking terms with Alejandro Atienza because the latter
stabbed him on August 22, 1999. He believes that Alejandro Atienza testified
against him to place him behind bars so that he could not file a case against
the latter.
SPO1 Mario Magnaye conducted the investigation regarding the killing of
Judie Acosta. On December 31, 1999, at around 8:30 oclock in the evening,
he, together with other policemen, proceeded to
the Mary Mediatrix Hospital where the victim was brought. The victim was
shot to death. Then, they proceeded to the house of Carlos Librea where the
victim and his friends had allegedly drunk earlier. Upon inquiries, they
learned that the assailant allegedly positioned himself at the back of the thick
shrubs from where he fired at the victim. The San Francisco shrubs are
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 189
seven to ten meters away from the table.The place was illuminated only with
a single electric bulb which was not so bright. With the use of a flashlight, he
searched around the shrubs but failed to find any empty shell.[8] (Citations
omitted)
Ruling of the Trial Court
The RTC found that Prosecution Eyewitness Alejandro Atienzas testimony
positively identifying appellant as the gunman was sufficient to convict him
of murder. Moreover, he failed to show that Atienzas testimony was ill-
motivated.
Appellant anchored his defense on bare denials and alibi. When
unsubstantiated by clear and convincing evidence, however, such defenses
are self-serving, deserving of no weight in law, and of no greater evidentiary
weight than the positive testimony of a credible witness. Appellant
admittedly took only a half-hour or at most an hour to traverse by tricycle
the distance from where he claimed he was to where the killing had taken
place. Considering this admission, the trial court held that it was not
impossible for him to have been at the crime scene at the time.
Hence, this appeal.[9]
Issues
In his Brief, appellant raises the following alleged errors for our
consideration:
I
The trial court gravely erred in its finding that the qualifying circumstance of
treachery attended the commission of the crime charged.
II
The trial court gravely erred in giving credence to the alleged positive
identification of the accused-appellant by alleged eyewitness Alejandro
Atienza.[10]
For clarity, we shall discuss these issues in reverse order.
The Courts Ruling
The appeal is partly meritorious. The qualifying circumstance of treachery
cannot be appreciated against appellant. He should be convicted of
homicide, not murder.

First Issue:
Positive Identification
Appellant contends that Atienza could not have identified the assailant,
because the shooting had occurred at night in a place dimly lit by a single
light bulb. That it was dark was corroborated by the investigating policeman,
SPO1 Mario Magnaye, who testified that there had indeed been not much
illumination from that single light bulb. [11] It is further alleged that since
Atienza had been drinking gin for an hour, then his vision might have been
obscured by his alcohol intake.
Appellant alleges a history of hostility between him and Atienza, who
supposedly stabbed him after an altercation sometime in 1999. Surmising
that, in order for Atienza to evade the case that appellant might file against
him, it would not be farfetched for the former to pin this murder case on the
latter.
We are not convinced.
First, Atienzas testimony disproves the poor illumination claim of appellant,
who testified thus:
Q: And what was the lighting condition at that place, the reason why you
were able to see Ricardo Latag considering that it was already about 8:00
oclock in the evening?
A: A bulb, sir.
Q: Where was that electric bulb located that illuminated the place?
A: At the corner or the back of the house of Carlos Librea, sir.
Q; How far was it from the table where you were seated around?
A: It was between the table and the San Francisco shrubs.
Q: From the table where you were drinking, which is nearer[, t]he shrub or
Ricardo Latag?
A: San Francisco shrubs, sir.
Q: So Ricardo Latag was behind or over the other side of the San
Francisco shrubs serving as the fence from the point of view of the table?
A: Yes, sir.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 190
Q: And you said that you saw Ricardo Latag after hearing one single shot
holding a caliber .22 firearm. After you saw him in that position, what did
Ricardo Latag do if [he] did anything more?
A: He ran to the east, sir.[12]
On cross-examination, Atienza affirmed that the place was well-lighted by an
electric bulb:
Q: If you were seated, how high is that light placed where you were
drinking?
A: (Witness pointing to the ceiling of the courtroom which is estimated to be
more or less 8 to 10 ft. from the floor.)
Q: So from your head, it is approximately 6 ft. above when you were seated?
A: Yes, sir.
Q: And what kind of light was that?
A: A bulb, sir.
Q: You did not notice the wattage of that bulb?
A: No, sir.
Q: But it was very bright?
A: Yes, sir.[13]
Second, he, appellant and the victim all lived in Barangay
Tanguay, Lipa City. Thus, because of his familiarity with appellant, it would
not have been difficult for Atienza to readily identify the former. We quote
the latters testimony:
Q: Why do you know Ricardo Latag?
A: I have known him since the beginning because we are both from
Tanguay, sir.
Q: How about Judie Acosta. Do you know him?
A: Yes, sir.
Q: Why do you know Judie Acosta?
A: He also resides at Tanguay, Lipa City, sir.[14]

Third, that the intoxication of Atienza might have impaired his vision is highly
speculative, being based on pure conjecture. No evidence was ever
presented to support the claim that he had already been intoxicated. It must
be noted that there were 12 men drinking on that fateful night. In the
normal and usual round of drinks among friends, it is doubtful whether,
within one hour, the average drinker would be in such state of intoxication as
to mistake a familiar person for another.
Fourth, the defenses contention of animosity between appellant and Atienza
remains a mere supposition. The former failed to present proof of the alleged
stabbing incident or evil motive that had allegedly impelled the latter to
testify against him. It is a fundamental principle in our rules on evidence that
those who allege must prove their allegation. [15]
Second Issue:
Treachery
Appellant contends that treachery was not duly proven because the
prosecution witness, Atienza, did not actually see how the shooting had
commenced. After hearing a gunshot, the latter turned his head and saw the
former holding a gun. Atienza became aware only of the succeeding events
after the gun had been fired; hence, he could not provide details on how the
attack began.
We are persuaded.
We believe that, contrary to the trial courts finding, the prosecution failed to
prove that treachery had attended the killing. For treachery to be present, it
must be proven 1) that the means, methods or forms of execution gave the
person attacked no opportunity for self-defense or retaliation; and 2) that
these were deliberately and consciously adopted without danger to the
attacker.[16]
In the present case, we find nothing in the records that shows the exact
manner of the killing. Though Atienza turned around immediately after
hearing a gunshot, he could not, and in fact did not, testify as to how the
attack had been initiated. The fact that appellant was standing behind some
shrubs when he shot the victim does not by itself sufficiently establish that
the method of execution gave the latter no opportunity for self-defense. Nor
was the attack deliberately and consciously adopted by the former without
danger to himself.
Treachery cannot be presumed where the lone witness has not actually seen
the commencement of the attack, as we held in People v. Narit:[17]
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 191
x x x. [Treachery] cannot be presumed; it must be proved by clear and
convincing evidence or as conclusively as the killing itself. For, as held in U.S.
vs. Perdon where no particulars are known as to the manner in which
aggression was made or how the act which resulted in the death of the
victim began and developed, it can in no way be established from mere
suppositions, drawn from circumstances prior to the very moment of the
aggression, that an accused perpetrated the killing with
treachery. Accordingly, treachery cannot be considered where the lone
witness did not see the commencement of the assault.[18]
Likewise, treachery must be as unequivocally proven as the crime itself, as
we ruled in People v. Rapanut:[19]
x x x. We think, however, that the trial court erred in finding that the killing
of Amado Somera was attended by treachery. Nobody witnessed the
commencement of the attack. The prosecution witness Maximo Manuel said
he saw the accused-appellants after the shooting. It was precisely because
of the gun reports which he heard which attracted his
attention. Circumstances which qualify criminal responsibility cannot rest on
mere conjecture, no matter how reasonable or probable but must be based
on facts of unquestionable existence. The rule is that such circumstances
must be proved as indubitably as the crime itself. Therefore, as in this case,
where the lone eyewitness did not see how the attack was carried out and
he can not testify on how it began, the trial court cannot merely surmise
from the circumstances of the case that treachery attended the commission
of the crime.[20]
Furthermore, no other circumstance attendant to the shooting supports the
allegation that appellant carefully and deliberately planned the killing in a
manner that would ensure his safety and success. There were no indications
that he had deliberately chosen the place, the time or the method of
killing. In addition, there was no showing that the meeting between him and
the victim had been planned. The fact that the former was seen by Atienza
behind some shrubs after a gunshot had rung out does not, by itself, compel
a finding of treachery. Such a finding must be based on some positive proof,
not merely on an inference drawn more or less logically from a hypothetical
fact. Apparent from the assailed Decision of the trial court is that it simply
surmised that treachery had attended the killing. It held as follows:
The shooting of Judie Acosta, who was unarmed and unaware of the
presence of the accused, who hid himself behind the San Francisco shrub at
night time, which appears to have been purposely sought to facilitate the
killing, without risk to himself, is treacherous. The treachery qualifies the

killing to murder. The generic aggravating circumstance of nocturnity,
however, is absorbed by treachery.[21]
There is doubt whether appellant purposefully sought the means he
employed in killing the victim. As earlier mentioned, treachery cannot be
presumed; it must be proven as fully and as convincingly as the crime
itself. Any doubt as to the existence of treachery must be resolved in favor of
the accused.[22]
Crime and Punishment
The penalty for homicide under Article 247 of the Revised Penal Code
is reclusion temporal. Because no aggravating or mitigating circumstances
were proven, the appropriate penalty is reclusion temporal in its medium
period.[23] Appellant is likewise entitled to the benefits of the Indeterminate
Sentence Law.
WHEREFORE, the appealed Decision is hereby MODIFIED. Appellant
is CONVICTED of homicide and SENTENCED to an indeterminate penalty of
eight years of prision mayor  medium, as minimum; to fourteen years and
eight months of reclusion temporal medium, as maximum. The award for
civil indemnity and actual damages, which have been proven,
is AFFIRMED. No pronouncement as to costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio,  and  Azcuna,
JJ.,  concur.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 192
SECOND DIVISION
G.R. No. 133440. June 7, 2004.*
PEOPLE OF THE PHILIPPINES, appellee, vs. VIRGILIO REFORMA y
PEDRIGAL, appellant.
Criminal Law; Murder; Evidence; Credibility of Witnesses; The well-
established rule is that the trial court’s calibration and assessment of the
credibility of the witnesses and the probative weight of their testimonies as
well as its findings are accorded high respect if not conclusive effect by the
appellate court.—In denying having stabbed and killed the victim, the
appellant thereby assails the credibility of Zenaida and Roger and the
credibility and probative weight of their testimonies. However, the trial court
gave credence and full probative weight to the testimonies of the said
witnesses. It declared that “the testimonies of the prosecution’s witnesses
are clear, positive, straightforward and devoid of signs of artificiality. No ill
motive could be ascribed to them, even by herein accused Reforma, to
falsely incriminate the accused.” The well-established rule is that, the trial
court’s calibration and assessment of the credibility of the witnesses and the
probative weight of their testimonies, as well as its findings, are accorded
high respect, if not conclusive effect, by the appellate court because of the
unique advantage of the trial court of observing and monitoring at close
range the demeanor and deportment of the witnesses as they testify.
Same; Same; Same; Treachery; Requisites for treachery to be appreciated;
Circumstances which qualify criminal responsibility cannot rest on mere
conjectures, no matter how reasonable or probable but must be based on
facts of unquestionable existence; Treachery must be proved by clear and
convincing evidence or as conclusively as the killing itself.—There is
treachery when the following conditions are present: (a) employment of
means, methods or manner of execution to insure the safety of the
malefactor from defensive or retaliatory acts on the part of the victim, and,

(b) deliberate adoption by the offender of such means, methods or manner
of execution. Since the prosecution’s witnesses did not see how the attack
was carried out and cannot testify on how it began, the trial court cannot
presume from the circumstances of the case that there was treachery.
Circumstances which qualify criminal responsibility cannot rest on mere
conjectures, no matter how reasonable or probable, but must be based on
facts of unquestionable existence. Mere probabilities cannot substitute for
proof required to establish each element necessary to convict. Treachery
must be proved by clear and convincing evidence, or as conclusively as the
killing itself.
Same; Same; Same; Evident Premeditation; Requisites needed to prove
evident premeditation.—The three requisites needed to prove evident
premeditation are the following: (a) the time when the offender determined
to commit the crime; (b) an act manifestly indicating that the offender had
clung to his determination; and (c) a sufficient interval of time between the
determination and the execution of the crime to allow him to reflect upon the
consequences of his act.
APPEAL from a decision of the Regional Trial Court of Quezon City, Br. 99.
The facts are stated in the opinion of the Court.
     The Solicitor General for appellee.
     Dionisio C. Maneja, Jr. for appellant.
DECISION
CALLEJO, SR., J.:
This is an appeal from the Decision[1] of the Regional Trial Court of Quezon
City, Branch 99, convicting the appellant of murder and sentencing him to
suffer reclusion perpetua.
The Facts
Zenaida Damian-Pondibida and her brothers, Nazario, Rolando and Jaime, all
surnamed Damian, Roger Ramos and the appellant had stalls in
the Balintawak market, Cloverleaf Compound, Balintawak, Quezon City. Their
respective stalls were near each other. The appellant was the brother-in-law
of the Damians, being married to their sister, Rosenda.
At 10:00 p.m. on February 9, 1993, Roger slept side by side with Nazario in
the latters stall. Zenaida, Rolando and Jaime were also in their separate
stalls. At about 11:00 p.m., Roger was awakened by a
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 193
commotion. Nazario and the appellant were quarreling. Roger was aghast
when he saw the appellant, who was only about four arms length away from
the stall, stab Nazario on the left side of the chest. Zenaida, who was barely
an arms length away, also saw the appellant as he stabbed Nazario on the
chest. When they saw the stabbing, Rolando and Jaime rushed to the
scene. Rolando wrestled with the appellant for the possession of the bolo
and managed to wrest it away from the latter. The appellant fled from the
scene. Rolando, Jaime, Roger and Zenaida then brought Nazario to
the Quezon City General Hospital where the latter expired. Zenaida and
Roger gave their respective sworn statements[2] to PO3
Carlito Canlas on February 11, 1993, relating to the stabbing incident.
Dr. Florante F. Baltazar performed an autopsy on the cadaver of Nazario and
signed Medico-Legal Report No. M-0237-93 which contained the following
findings:
Fairly developed, fairly nourished male cadaver in rigor mortis with post-
mortem lividity over the dependent portions of the body. Conjunctivae and
lips were pale. Nail beds were cyanotic. There was a surgical incision at the
anterior distal 3rd left forearm.
EXTERNAL INJURIES: TRUNK AND EXTREMITIES:
(1) Penetrating stab wound, anterior left thorax, 120 cms. from heel, 7 cms.
from anterior midline, measuring 10 cms. x 4 cms. x 7 cms. depth, directed
upwards, backwards, towards midline, fracturing the 4thleft thoracic cartilage,
piercing the pericardium and right ventricle of the heart.
(2) Incised wound, anterior left lower thorax, measuring 5.5 cms. x 0.2 cm. x
2 cms. from anterior midline.
(3) Incised wound, posterior left scapular region, measuring 3 cms. x 0.5 cm.
(sic) 8 cms. from posterior midline.
(4) Incised wound, posterior right scapular region, measuring 6.5 cms. x 0.2
cm. (sic) 5 cms. from posterior midline.
(5) Multiple abrasions, right elbow, measuring 5 cms. x 5 cms.
(6) Incised wound, anterior distal 3rd right thigh extending to right knee,
measuring 17 cms. x 0.6 cm.
INTERNAL FINDINGS:
(1) Recovered from the left thorax, 1,500 cc of blood and blood clots.

(2) Recovered from the stomach 1/4 glass of rice meal.
CONCLUSION:
Cause of death is penetrating stab wound, anterior left thorax.[3]
Dr. Baltazar also signed the victims certificate of death. [4]
On February 12, 1993, an Information was filed in the Regional Trial Court of
Quezon City, charging the appellant with murder. The accusatory portion
reads:
That on or about the 9th day of February 1993, in Quezon City, Philippines,
the above-named accused, did then and there, willfully, unlawfully and
feloniously with intent to kill, with treachery, taking advantage of superior
strength and evident premeditation, attack, assault and employ personal
violence upon the person of NAZARIO DAMIAN, by then and there stabbing
the latter with a bladed weapon (gulok), hitting him on the left side of his
breast (sic), thereby inflicting upon him serious and mortal wounds which
was the direct and immediate cause of his death, to the damage and
prejudice of the heirs of said Nazario Damian.[5]
The appellant was arraigned on March 10, 1993, assisted by counsel de
parte, and entered a plea of not guilty.
The Defense of the Appellant
The appellant denied stabbing Nazario. He testified that at about 11:00
p.m. on February 9, 1993, his brothers-in-law, Rolando, Nazario and Jaime,
all surnamed Damian, were having a drinking spree. He was in his stall at
that time. After a while, his brothers-in-law invited him to join them in their
drinking spree, but upon seeing that they were already drunk, the appellant
refused. Rolando, Nazario and Jaime resented this rejection, and forthwith
mauled the appellant, hitting him with hard objects. He lost
consciousness. After about ten minutes, the appellant came to and found
himself in the stall of Dioscoro Balingit. Momentarily, a policeman arrived,
handcuffed him and brought him to the La Loma police station. A doctor at
the Philippine Orthopedic Hospital examined his wounds and issued a
Temporary Medical Certificate thereon.[6]
The appellant also testified that Rolando, Nazario and Jaime sold a coconut
land in Quezon City to him for P30,000.00. There was, however, no
document executed between them to serve as evidence of the sale.
Furthermore, the Damian brothers took back the property and failed to
refund him of his P30,000.00.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 194
On February 14, 1993, the appellant filed a criminal complaint [7] against
Rolando and Jaime Damian in the Office of the City Prosecutor of Quezon
City. He executed a sworn statement[8] in support
thereof. Dioscoro Balingit also executed a sworn statement[9] to support the
said complaint.
Dioscoro Balingit testified that he worked for the appellant as a helper
for P150.00 a week. In the evening of February 9, 1993, he and the
appellant were arranging the bananas which the latter sold for a living. A
heated altercation ensued between the appellant and Rolando Damian
concerning their stalls. Rolando threw a bottle at the appellant, but the latter
managed to evade the bottle. Jaime and Nazario then arrived and helped
Rolando maul the appellant. They hit the latter with a lead pipe and a folding
bed. Dioscoro then helped the appellant to walk to his stall. Rolando then got
a knife and stabbed him on the left thigh. Rolando stabbed him a second
time, but as he was able to evade the blow, Nazario was hit on the chest
instead.Rolando withdrew the knife, threw it away and fled. Jaime
brought Nazario to the hospital. Dioscoro Balingit later executed a sworn
statement[10] at the La Loma police station.
On August 27, 1997, the trial court rendered judgment convicting the
accused of murder. The decretal portion of the decision reads:
WHEREFORE, premises considered, this Court finds accused
VIRGILIO REFORMA y PEDRIGAL, GUILTY beyond reasonable doubt of the
crime of MURDER penalized under Article 248 of the Revised Penal Code,
without any mitigating or aggravating circumstances, and hereby sentences
said accused to suffer the penalty of imprisonment of reclusion perpetua and
to pay the heirs of the deceased victim damages in the amount of FIFTY
THOUSAND PESOS (PHP50,000.00) (People vs. Jose Adriano y Vargas, G.R.
No. 104578, 06 September 1993).
It is understood that accused shall be credited in full of his preventive
imprisonment.[11]
The appellant now assails the decision, contending that:
I
THE LOWER COURT GRAVELY ERRED IN GIVING FULL CREDENCE TO THE
EVIDENCE OF THE PROSECUTION.
II
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 195

THE LOWER COURT GRAVELY ERRED IN DISREGARDING THE EVIDENCE Q When you say puwesto (stall), you were at Cloverleaf
FOR THE DEFENSE. Market, Balintawak, Quezon City?

III A Yes, Sir.

THE LOWER COURT GRAVELY ERRED IN CONVICTING THE ACCUSED FOR Q At about 11:00 oclock in the evening, on that same day, do you recall any
THE OFFENSE CHARGED.[12] unusual incident that happened?

The appellant asserts that the trial court erred in giving credence and full A Yes, Sir.
probative weight to the testimonies of Zenaida and Roger and in disbelieving
his testimony and that of Balingit.He avers that the inconsistencies between Q What was that incident about?
his testimony and that of Balingit are trivial and did not render the same A My brother was killed, Sir.
incredible and barren of probative weight. He contends that the trial court
erred in not finding that the victim was stabbed by his brother, Rolando, and Q And who was this brother of yours?
not by him. The appellant further asserts that, as shown by his injuries, he
was the victim of the vicious assault by Rolando, Nazario and Jaime. A Nazario Damian, Sir.

The appeal of the appellant has no merit. Q You said your brother was killed, who killed your brother?

In denying having stabbed and killed the victim, the appellant thereby assails A Virgilio Reforma, Sir.
the credibility of Zenaida and Roger and the credibility and probative weight (Witness is pointing to a person wearing a white t-shirt whom when asked
of their testimonies. However, the trial court gave credence and full answered to the name Virgilio Reforma)
probative weight to the testimonies of the said witnesses. It declared that
the testimonies of the prosecutions witnesses are clear, positive, Q Why do you know Virgilio Reforma?
straightforward and devoid of signs of artificiality. No ill motive could be
ascribed to them, even by herein accused Reforma, to falsely incriminate the A He is the husband of my sister, Sir.
accused.[13] The well-established rule is that, the trial courts calibration and Q What is the name of your sister who is the wife of the accused?
assessment of the credibility of the witnesses and the probative weight of
their testimonies, as well as its findings, are accorded high respect, if not A Rosenda Damian, Sir.
conclusive effect, by the appellate court because of the unique advantage of
the trial court of observing and monitoring at close range the demeanor and Q How did Virgilio Reforma kill your brother?
deportment of the witnesses as they testify.[14] Although there are A The accused went to the place of my brother and he stabbed him.
exceptions, we find no justification, after our review of the records, to
deviate from the findings of the trial court and its assessment of the Q When you say your brother, you are referring to Nazario Damian?
credibility and probative weight of the testimonies of the prosecutions
witnesses. A Yes, Sir.

Zenaida testified how the appellant stabbed her brother with a bolo (gulok)
on the chest. She was only four arms length away from the place of the
stabbing:
Q On February 9, 1993, in the evening, do you recall where you were?
A I was in our stall, Sir.
Q Was your brother hit?
A Yes, Sir. (Witness is pointing to her left [sic] chest).
Q What weapon did the accused use in stabbing your brother?
A (Witness is showing a measurement of 18 inches bladed weapon in the
form of a small gulok).
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 196

Q When you saw the accused stabbed (sic) your brother, how far were you? Q Why do you know Nazario Damian?

A Three (3) arms length. A Because he is also a vendor beside my stall at (sic) Balintawak market, Sir.

Q After your brother was stabbed, what did he do, if any? Q Where is Nazario Damian?

A They grappled for the possession of the weapon while the same was A Hes already dead, Sir.
implanted on my brothers breast (sic), he fell down.
Q How about Virgilio Reforma, do you know him?
Q As your brother fell down, what did the accused do?
A Yes, Sir.
A I called up my two other brothers who then came out and grappled also
for the possession of the weapon. Q How do you know him?

Q And who were these two brothers of yours?
A They are Rolando and Henry Damian and it was Rolando who was able to
grab the possession (sic) of the weapon.
Q What did Rolando do after he was able to grab the possession (sic) of the
weapon?
A He brought the weapon to the police.
Q How about Reforma, what did he do after the weapon from his hands was
taken by Rolando Damian?
A He went away, Sir.
Q Where did he go, if you know?
A To his stall because he has also a stall in Cloverleaf Market.
Q How far is his stall to the place where the stabbing incident took place?
A About four (4) arms length away, Sir.[15]
Roger testified how he was awakened by the commotion between the
appellant and the victim. He saw the appellant as he stabbed the victim on
the chest with a bolo, and thereafter, fled from the scene:
A I have known him first, and he is also the same vendor near my stall
at Balintawak and I have known him longer than Nazario Damian, Sir.
Q If Virgilio Reforma is inside the courtroom, will you kindly point him to this
Honorable Court?
A (Witness pointing to a man wearing a yellow-orange polo shirt who
identified himself as Virgilio Reforma)
Q In the evening of February 9, 1993, do your recall the time when you went
to bed?
A About 10:00 in the evening, Sir.
Q Where did you sleep that night?
A At the stall of Nazario Damian, Sir.
Q Where is that stall located?
A Balintawak market, EDSA, Quezon City, Sir.
Q You went to bed at about 10:00 in the evening, what time did you wake
up on that evening?
A I was waken-up (sic) by that incident about 11:00 in the evening, Sir.

Q You stated that you are a vendor at (sic) Balintawak market, as a vendor, Q And why did you wake up?
do you know the person of Nazario Damian? A I was waken up (sic) by that trouble, Sir.
A I know him, Sir. Q What kind of trouble was that?
Q As of February 9, 1993, how long have you known Nazario Damian? A Because Virgilio Reforma is (sic) stabbing Nazario Damian, Sir.
A More or less 10 years, Sir.
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 197

Q What was the weapon used by Reforma in stabbing the victim? A He was trying to free himself, Sir.

A A bolo like this (Witness is showing a length of a foot), Sir. Q Was he able to free himself?

Q What else did you see as the accused Reforma was brandishing that bolo? A Yes, Sir.

A I have seen him stabbing Nazario Damian, Sir. Q Where did he go?

Q How far were you from Virgilio Damian at that time you saw him A That I do not know for I am now (sic) trying to carry Nazario Damian, Sir.
stabbing Nazario Damian?
Q How about Jimmy and Rolly, what did they do as Reforma was able to
A About one arms length, Sir. extricate?

Q Was Nazario Damian hit? A They run (sic) towards me for I am (sic) bringing Damian and they helped
me in carrying Nazario, Sir.
A Yes, Sir.
Q What happened afterwards?
Q How many times?
A After I brought Nazario to the hospital, we went back to the market
A Two (2) times, Sir. at Balintawak, Sir.[16]
Q What part of Nazario Damian was hit? The testimonies of the prosecutions witnesses are corroborated by the post-
A Here (Witness pointing to his left [sic] chest and his left leg), Sir. mortem report of Dr. Florante Baltazar that the victim was stabbed on the
chest. The flight of the appellant from the situs criminis, and his throwing
Q And what did Nazario Damian do as he was being stabbed by the accused? away of the bolo in the process, are evidence of his guilt of the crime
charged. There is no evidence on record that Roger and Zenaida nurtured
A Hes (sic) trying to parry the stab blow but he was not able to do so, Sir. any ill or devious motive to pillory the appellant and falsely ascribe to him
Q How about you, what did you do when you saw Nazario Damian being the killing of Nazario. Hence, the said witnesses are presumed to have
stabbed? testified in good faith and their testimony entitled to full faith and credit. [17]

A I step (sic) a little far, but when I saw that Nazario was hit, I got near The appellants bare denial of the charge against him cannot prevail over the
them to help him and carried him, Sir. positive and straightforward testimonies of the prosecutions witnesses,
identifying and pointing to him as the perpetrator of the crime. [18]
Q How about Reforma, what did he do?
The appellants and Balingits testimony, that the appellant was mauled and
A He was held by the brothers of Nazario, Sir. hit with a lead pipe and that Rolando stabbed Nazario once when he
attempted to stab the appellant, is belied by the medico-legal report of
Q Who is that brother who held Reforma? Dr. Florante Baltazar that the victim sustained one penetrating stab wound
A Jimmy and Rolly Damian, Sir. on the anterior left thorax and four (4) incised wounds and multiple
abrasions. Balingit has not adduced in evidence any medical certificate that
Q How is Rolly Damian related to the deceased? he sustained a stab wound on his left hand. As between Balingits testimony
and the physical evidence, the latter must be upheld. [19] The appellant
A Brother, Sir. adduced in evidence a mere machine copy of the temporary medical
Q What was the reaction of Reforma as he was being held by the Damian certificate issued to him by an unidentified doctor who did not testify. The
brothers, Jimmy and Rolly? appellant cannot, thus, rely on the said certificate to fortify his
defense. While he filed a criminal complaint against Rolando and Jaime in

the Office of the City Prosecutor, docketed as I.S. No. 93-2460, it is
incredible that he is not even aware of what happened to his complaint.
The Crime Committed by the Appellant
The trial court convicted the appellant of murder under Article 248 of the
Revised Penal Code, but failed to state any qualifying circumstance attendant
to the crime. The Information alleges that the appellant killed the victim with
treachery, taking advantage of superior strength and evident
premeditation. However, the prosecution failed to prove any of the said
circumstances beyond reasonable doubt.
There is treachery when the following conditions are present: (a)
employment of means, methods or manner of execution to insure the safety
of the malefactor from defensive or retaliatory acts on the part of the victim,
and, (b) deliberate adoption by the offender of such means, methods or
manner of execution.[20] Since the prosecutions witnesses did not see how
the attack was carried out and cannot testify on how it began, the trial court
cannot presume from the circumstances of the case that there was
treachery. Circumstances which qualify criminal responsibility cannot rest on
mere conjectures, no matter how reasonable or probable, but must be based
on facts of unquestionable existence. Mere probabilities cannot substitute for
proof required to establish each element necessary to convict. Treachery
must be proved by clear and convincing evidence, or as conclusively as the
killing itself.[21]
In this case, Zenaida and Roger did not see how the attack commenced.
When Roger woke up, there was already an ongoing confrontation between
the appellant and the victim.
The three requisites needed to prove evident premeditation are the
following: (a) the time when the offender determined to commit the crime;
(b) an act manifestly indicating that the offender had clung to his
determination; and (c) a sufficient interval of time between the
determination and the execution of the crime to allow him to reflect upon the
consequences of his act.[22] The prosecution failed to prove any essential
element of these circumstances.
We held that abuse of superior strength is considered when there is a
showing that the accused purposely employed superior strength to
consummate the crime; that he used purposely excessive force out of
proportion to the means of defense available to the person attacked. [23] In
this case, while the appellant used a bolo, there is no evidence on record
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 198
that he purposely used it precisely to commit the crime. In fine, the appellant
is guilty only of homicide under Article 249 of the Revised Penal Code.
The penalty for homicide under the Revised Penal Code is reclusion
temporal. There being no mitigating or aggravating circumstances attendant,
the maximum of the indeterminate penalty shall be taken from the medium
period of reclusion temporal. The minimum of the indeterminate penalty
shall be taken from the full range of the penalty next lower in degree,
namely, prision mayor. Thus, the appellant may be sentenced to an
indeterminate penalty ranging of from eight (8) years and one (1) day
of prision mayor, in its medium period, as minimum, to fourteen (14) years,
eight (8) months and one (1) day of reclusion temporal in its medium period,
as maximum.
Civil Liabilities of the Appellant
The trial court correctly awarded P50,000 by way of civil indemnity to the
heirs of the victim Nazario Damian. However, the award of P50,000 for moral
damages should be deleted, there being no proof that the heirs of the victim
suffered wounded feelings, mental anguish, anxiety and similar injury. The
said heirs are, however, entitled to an award of P25,000 as temperate
damages, conformably to current jurisprudence.[24]
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial
Court of Quezon City, Branch 99, is AFFIRMED WITH MODIFICATIONS. The
appellant Virgilio Reforma y Pedrigal is found GUILTY beyond reasonable
doubt of Homicide under Article 249 of the Revised Penal Code, as amended
by Rep. Act No. 7659 and is sentenced to suffer the indeterminate penalty of
from Eight (8) years and One (1) day of prision mayor in its medium period,
as minimum, to Fourteen (14) years, Eight (8) months and One (1) day
of reclusion temporal in its medium period, as maximum. The appellant is
ORDERED to pay Fifty Thousand Pesos (P50,000) as civil indemnity and
Twenty-Five Thousand Pesos (P25,000) as temperate damages to the heirs
of the victim.
No costs.
SO ORDERED.
Puno, (Chairman), Quisumbing,  Austria-Martinez,  and Tinga, JJ.,  concur.
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 199

G.R. No. 138534. March 17, 2004.*

PEOPLE OF THE PHILIPPINES, appellee, vs. SPO1 VIRGILIO G.

BRECINIO, appellant.

Criminal Law; Murder; Evidence; Witnesses; Appeals; The factual findings of

the trial court on the credibility of witnesses deserve great weight, given the
clear advantage of the trial judge in the appreciation of testimonial evidence.
—We reiterate the familiar and well-entrenched rule that the factual findings
of the trial court on the credibility of witnesses deserve great weight, given
the clear advantage of the trial judge (an opportunity not available to the
appellate court) in the appreciation of testimonial evidence. The trial judge
personally hears the witnesses and observes their deportment and manner of
testifying. Although the rule admits of certain exceptions, we find no reason
to hold otherwise in the present case.

Same; Same; Same; Same; Absence of improper motive makes testimony

worthy of full faith and credence.—When there is no evidence of improper
motive on the part of the prosecution witness to testify falsely against an
accused or implicate him in the commission of a crime, the logical conclusion
is that no such improper motive exists and the testimony is worthy of full
faith and credence.

Same; Same; Same; Paraffin Test; A negative paraffin result is not

conclusive proof that a person has not fired a gun.—Time and again, we
have held that a negative paraffin result is not conclusive proof that a person
has not fired a gun. Stated otherwise, it is possible to fire a gun and yet be
negative for nitrates, as when the culprit is wearing gloves or he washes his
hands afterwards.

Same; Same; Qualifying Circumstances; Treachery; The accused must have

deliberately and consciously adopted a means of execution without risk to
himself.—For treachery to be considered, the accused must have deliberately
and consciously adopted a means of execution that rendered the person
attacked with no opportunity to defend himself or to retaliate.

Same; Same; Same; Same; Even frontal attack can be treacherous when
unexpected and the unarmed victim is in no position to repel the attack or
avoid it.—The testimonies of the two eyewitnesses, co-inmates of the victim,
showed that the suddenness and mode of attack adopted by the appellant
placed not only the victim but also all of them in such a situation where it
was not possible for them to resist the attack or defend themselves. Even
frontal attack can be treacherous when unexpected and the unarmed victim
is in no position to repel the attack or avoid it.
Same; Same; Mitigating Circumstances; Voluntary Surrender; The fact that
appellant did not resist arrest or deny his criminal act did not constitute
voluntary surrender.—The fact that appellant did not resist arrest or deny his
criminal act did not constitute voluntary surrender. A surrender, to be
voluntary, must be spontaneous and must clearly indicate the intent of the
accused to submit himself unconditionally to the authorities. Here, the
appellant, after shooting the victim, was immediately disarmed and placed
under arrest. There was, therefore no voluntary surrender to speak of
because the appellant was in fact arrested.
APPEAL from a decision of the Regional Trial Court of Sta. Cruz, Laguna, Br.
28.
The facts are stated in the opinion of the Court.
     The Solicitor General for appellee.
     Pablito A. Carpio for appellant.
DECISION
CORONA, J.:
This is an appeal from the decision[1]dated October 15, 1998, of the Regional
Trial Court of Santa Cruz, Laguna, Branch 28, in Criminal Case No. SC-6476,
finding herein appellant, SPO1 Virgilio G. Brecinio, guilty beyond reasonable
doubt of the crime of murder for the killing of one Alberto Pagtananan.
Appellant Brecinio was originally charged with homicide thru reckless
imprudence in the Municipal Trial Court of Pagsanjan, Laguna by the PNP
Chief of Police of Pagsanjan, Laguna.[2]However, upon intervention of the
National Bureau of Investigation (NBI) and after a re-investigation conducted
by the Office of the Laguna Provincial Prosecutor, the charge against the
appellant was upgraded to murder:[3]
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 200
That on the 30th day of June 1996, more or less 6:00 oclock in the evening,
inside the Municipal Jail, Municipality of Pagsanjan, Province of Laguna, and
within the jurisdiction of this Honorable Court, the above-named accused,
with intent to kill, with treachery and evident premeditation, while
conveniently armed with a service firearm Colt Caliber .45 with SN 531333,
did then and there willfully, unlawfully and feloniously shoot ALBERTO
PAGTANANAN, a jail inmate, who was then caught unaware and was hit on
the upper quadrant medical clavicular line, resulting in his instantaneous
death, to the damage and prejudice of his surviving heirs.
That the crime was committed with the qualifying circumstances of treachery
and evident premeditation.
Contrary to law.
Arraigned on May 21, 1997, appellant pleaded not guilty to the charge. [4]
The version of the prosecution revolved basically around the testimonies of
the two eyewitnesses, Robinson Arbilo[5]and Filomeno Mapalad, Jr.,[6]with
supplementary testimonies from Dr. Levy Abad, [7]the municipal health officer
of Pagsanjan, Laguna, Dr. Arsenio de Roma[8]of the Laguna Provincial
Hospital who examined the victim and declared him dead on arrival, Atty.
Rogelio G. Munar[9]of the NBI and Elpidia Pagtananan-Barcelona,[10]the sister
of the victim.
Robinson Arbilo testified that, at around 5:00 p.m., on June 30, 1996, he
was with inmates Sammy Bolanos, Rafael Morales, Edwin Maceda, Filomeno
Mapalad, Jr. and victim Alberto Pagtananan inside the Pagsanjan municipal
jail, cell no. 1, when appellant SPO1 Virgilio Brecinio, who was drunk,
arrived. Appellant entered their cell and asked for their names, and the
reasons for their detention. After answering, each of them received a blow in
the stomach from the appellant for no apparent reason. Thereafter,
appellant ordered them to bring out all their belongings from their cell. While
doing so, they were hit with whatever object the former could get hold of.
Appellant proceeded to the comfort room and, as he emerged therefrom, he
saw the victim Alberto Pagtananan also coming out. Appellant confronted the
victim and asked him where he came from. The victim answered that he had
just urinated. Apparently not believing him, appellant accused the victim of
hiding and making a fool of him. The victim innocently replied hindi naman
po. Irritated by the answer, appellant berated the victim and when the latter
looked at him, he asked, Bat ang sama mong tumingin? The victim did not
reply. Appellant punched the victim in the stomach but still the latter said
nothing.

Appellant pulled out his .45 caliber pistol tucked on his right waist and fired it
twice in succession. The first shot was directed upward; the second
downward. The inmates inside the cell were all cowering in fear and were
huddled together in one corner of the bed, covering their ears. Witness
Arbilo who was merely one-and-a-half meters in front of the appellant then
saw the latter aim his gun at the victim and fire the third shot, hitting the
victim in the stomach. Seeing the victim lying prostrate on the ground, the
inmates lifted and laid him on the bed. At that juncture, appellant, who was
standing in front of the inmates, reholstered his gun on his waist and
ordered them to get water for the victim. SPO1 Bayani Montessur then
arrived and ordered the victim to be brought to a nearby hospital but the
latter was declared dead on arrival.
Filomeno Mapalad, Jr. corroborated the testimony of Robinson Arbilo. From a
distance of only three meters behind the appellant, he saw the latter fire the
third shot at the victim. He also declared that there was no truth to the
statement in his Sinumpaang Salaysay dated June 30, 1996 that the
appellant slipped on the floor, causing the gun to fall and fire accidentally,
hitting Pagtananan in the stomach. SPO1 Montessur, a colleague of
appellant, prepared the said affidavit and, after getting his name and
address, forced him to sign it. He signed the affidavit out of fear of the
appellant who threatened to kill him if he did not cooperate.
After his release from detention, Mapalad went to the NBI and gave his
statement on what actually transpired.
Dr. Levy Abad, municipal health officer of Pagsanjan, Laguna, conducted the
post-mortem examination on the body of the victim. He found that the victim
sustained one gunshot wound in the stomach and that the cause of death
was shock and severe internal hemorrhage.
Atty. Rogelio G. Munar, Ballistician V and Chief of the Firearm Investigation
Division of the NBI, testified on Report No. 411-10-796 submitted by his
subordinate, Ireneo Ordiano, who could not testify in court as he had
suffered a mild stroke and still encountered difficulty in speaking. He testified
on the result of the ballistics examination which revealed that the slug
recovered from the body of the victim Alberto Pagtananan was a .45 caliber
copper-jacketed bullet.
Elpidia P. Barcelona, the sister of the victim, testified on the expenses
incurred by their family as a result of her brothers death. According to her,
the family spent P25,000 for the funeral services and food served during the
wake, P10,000 for the coffin and P50,000 for transportation expenses in
going to the NBI, plus other expenses.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 201
Contrary to the prosecutions version, appellant claimed that the shooting
was accidental. He declared that he had just gone out of the comfort room
and was about to tuck his .45 caliber pistol in its holster on his waist when
he slipped on the wet floor, causing the gun to drop and fire. After picking
up the gun, Eric Garcia, an inmate, called his attention to the fact that one of
the inmates had been hit. He immediately went to the detention cell and saw
the victim, Alberto Pagtananan, lying down with a wound in his stomach. He
called Filomeno Mapalad Jr. and ordered him to bring the victim to the
hospital. He was not able to go with the group as he was immediately placed
under arrest.
On cross-examination, appellant testified that his pistol was in good condition
and was always loaded and cocked. Appellant also testified that when his
gun fired, it hit the cement wall. Appellant further testified that, in order to
assuage the feelings of the victims relatives, his wife sent a cavan of rice,
coffee and sugar. They also tried to amicably settle the case with the family
of the victim but were turned down.[11]
NBI forensic chemist Emilia Andro-Rosaldes was also presented by the
defense to testify on the result of the paraffin examination conducted on the
appellant on July 2, 1996, two days after the alleged shooting incident. She
testified that it was Mrs. Gemma Orbeta who made the paraffin cast on the
appellant and her only participation was the examination of the paraffin cast
taken from the appellant. According to her, there are four factors that can
affect the presence of gun powder residue in the hands of a person who fires
a gun, namely, the length of the barrel of the gun, the wind velocity, the
direction of the shot(s) and the type and caliber of ammunition. She also
declared that the application of paraffin wax to make the paraffin cast can
remove gunpowder residue. She did not know whether paraffin wax had
been applied on the hands of the appellant before the paraffin cast was
made.[12]
The trial court, after weighing the evidence presented by both sides, gave no
credence to the version of the appellant. On October 15, 1998, a decision
was rendered, convicting appellant of the crime of murder. The dispositive
portion read:
WHEREFORE, IN THE LIGHT OF ALL THE FOREGOING CONSIDERATIONS,
the Court finds the accused SPO1 VIRGILIO BRECINIO y GASTON GUILTY
beyond reasonable doubt of MURDER, defined and punished under Article
248 of the Revised Penal Code, as amended by the Death Penalty Law, but
appreciating in his favor the mitigating circumstance of VOLUNTARY
SURRENDER, hereby sentences him to suffer the penalty of RECLUSION

PERPETUA and to pay the heirs of the deceased-victim ALBERTO
PAGTANANAN the sum of P50,000.00 as indemnity for his death and the sum
of P25,000.00 as expenses during the wake and to pay the costs of the
instant suit.
The accused shall further suffer the accessory penalties of civil interdiction
and perpetual absolute disqualification pursuant to Article 41 of the Revised
Penal Code.
So ordered.
Hence, this appeal. Appellant alleges that the trial court erred in convicting
him of murder and that, if an offense was indeed committed, it was only
reckless imprudence resulting in homicide.
A careful evaluation of the records shows that the court a quo was correct in
finding appellant guilty of killing the victim.
We reiterate the familiar and well-entrenched rule that the factual findings of
the trial court on the credibility of witnesses deserve great weight, given the
clear advantage of the trial judge (an opportunity not available to the
appellate court) in the appreciation of testimonial evidence. The trial judge
personally hears the witnesses and observes their deportment and manner of
testifying. Although the rule admits of certain exceptions, we find no reason
to hold otherwise in the present case.[13]
As found by the trial court and we agree both prosecution witnesses were
credible. They gave a steadfast and credible narration of what they
witnessed in a manner reflective of a candid and unrehearsed testimony.
Robinson Arbilo, who stood only one-and-a-half meters in front of the
assailant, was very direct, clear and spontaneous in describing how the
appellant shot the victim. His testimony was:
TRIAL PROSECUTION:
Q What happened next when you heard that second shot?
A I saw that Brecinio poked his gun on Pagtananan and fired it.
Q Tell us your relative position from Pagtananan when you saw Brecinio
poked his gun at him and fired?
A We were all seated on the bed, sir.
Q On your side, who is the person on your left side?
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A Edwin Maceda, sir.
Q On your right side?
A Nobody because I was seated near the wall, sir.
Q Who was at the left side of Edwin Maceda?
A Sammy Bolanos, sir.
Q How about the person on the left side of Sammy Bolanos?
A Alberto Pagtananan, sir.
Q And on the left side of Alberto Pagtananan?
A Rafael Morales, sir.
Q Were you able to actually see Brecinio poked (sic) a gun where
Pagtananan was sitting at that time?
A Yes, sir.
Q Tell us how you were able to see Brecinio poked (sic) that particular gun
to Pagtananan
A I was seated in a stooping position my hands in both ears but I was
looking at Brecinio, sir.
Q What happened next when you saw Brecinio poking a gun at Pagtananan
and according to you heard a gun fire?
A Pagtananan sl[u]mped on the floor, sir.[14]
Filomeno Mapalad Jr., who was merely three meters behind the appellant,
also gave a positive, straightforward and unequivocal account of what
happened. The pertinent portion of his testimony was:
TRIAL PROSECUTOR:
Q And what happened next when Brecinio went outside while Pagtananan
went inside the comfort room?
A Brecinio went out from the comfort room and proceeded inside the cell.
Q And when he was already inside the cell what happened next?
A It was on that occasion when Pagtananan went out coming from the
comfort room.
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 203

Q And what happened next after Pagtananan went outside coming from the The appellant, in an attempt to impugn the credibility of prosecution witness
comfort room? Filomeno Mapalad, Jr., harps on the latters recantation of his affidavit
supporting the defenses accident theory.
A Brecinio got mad at Pagtananan, sir.
We find that Mapalads recantation was satisfactorily explained. He testified
Q How did you come to know that Brecinio got mad at Pagtananan? that he was threatened by the appellant. As a detainee, he was completely
A Brecinio said the words, Niloloko mo ba ako? vulnerable to the threats of the appellant, a police officer and presumably his
jailer. He therefore signed the said affidavit (supporting appellants accident
Q And was there any reply from Pagtananan? version) as he was ordered to do. However, immediately after his release
from detention, he went to the NBI and narrated what really transpired. He
A No reply, sir. stood firm in his testimony about the direct involvement of the appellant.
Q And what happened when Pagtananan did not reply on the comment of In this connection, the defense never showed that Mapalad was motivated
Brecinio? by any ill-motive in implicating the appellant in the crime. When there is no
A Brecinio pulled out a gun from his waist, sir. evidence of improper motive on the part of the prosecution witness to testify
falsely against an accused or implicate him in the commission of a crime, the
Q And what did he do with that gun that he pulled from his waist? logical conclusion is that no such improper motive exists and the testimony is
worthy of full faith and credence.[16]
A He fired it, sir.
Likewise, while the paraffin test was negative, such fact alone did not ipso
Q Towards what direction? facto prove that the appellant was innocent. Time and again, we have held
A Upward direction, sir. that a negative paraffin result is not conclusive proof that a person has not
fired a gun. Stated otherwise, it is possible to fire a gun and yet be negative
Q And after firing that first shot towards that upward direction, what else did for nitrates, as when the culprit is wearing gloves or he washes his hands
he do? afterwards.[17]Since appellant submitted himself for paraffin testing only two
days after the shooting, it was likely he had already washed his hands
A He fired again downwards, sir thoroughly, thus removing all traces of nitrates therefrom.
Q To whom was that second shot aimed or pointed? The trial court correctly appreciated the presence of treachery which
A Downwards direction, sir. qualified the offense to murder. For treachery to be considered, the accused
must have deliberately and consciously adopted a means of execution that
xxx xxx xxx rendered the person attacked with no opportunity to defend himself or to
retaliate.[18]
Q How about the third shot?
As described by the prosecution, the victim and his co-detainees were inside
A It was aimed at Pagtananan, sir? the cell when appellant, who was drunk, manhandled them and suddenly
Q And what is the position of Pagtananan at that time? fired three successive shots. It was the third shot that killed the victim. The
testimonies of the two eyewitnesses, co-inmates of the victim, showed that
A He was just seated, sir. the suddenness and mode of attack adopted by the appellant placed not only
the victim but also all of them in such a situation where it was not possible
Q How did you come to know that that third shot was aimed and pointed to
for them to resist the attack or defend themselves. Even frontal attack can
Pagtananan?
be treacherous when unexpected and the unarmed victim is in no position to
A I saw it, sir.[15] repel the attack or avoid it.[19]

However, this Court finds that the trial court erred in considering the
mitigating circumstance of voluntary surrender.
The fact that appellant did not resist arrest or deny his criminal act did not
constitute voluntary surrender. A surrender, to be voluntary, must be
spontaneous and must clearly indicate the intent of the accused to submit
himself unconditionally to the authorities. Here, the appellant, after shooting
the victim, was immediately disarmed and placed under arrest. There was,
therefore no voluntary surrender to speak of because the appellant was in
fact arrested.[20]
We hold that the trial court did not err in convicting the appellant of murder.
The penalty therefor under Article 248 of the Revised Penal Code, as
amended by RA 7659 (The Heinous Crimes Law) is reclusion perpetua to
death. There being neither mitigating nor aggravating circumstances, the
lesser penalty of reclusion perpetua should be imposed in accordance with
Article 63 of the Revised Penal Code.
We sustain the award by the trial court of civil indemnity in the amount
of P50,000, pursuant to prevailing jurisprudence and the policy of the Court.
[21]
As to actual damages, we have ruled that, when actual damages
supported by receipts amount to less than P25,000 (as in this case where
only P10,000[22]was duly receipted), the award of temperate damages
for P25,000 is justified in lieu of actual damages. Moral damages cannot be
awarded because no evidence, testimonial or otherwise, was presented by
the prosecution to support it.[23]
WHEREFORE, the appealed decision dated October 15, 1998 of the
Regional Trial Court of Santa Cruz, Laguna, Branch 28, in Criminal Case No.
SC-6476, finding SPO1 Virgilio G. Brecinio guilty beyond reasonable doubt of
the crime of murder and sentencing him to suffer the penalty of reclusion
perpetua, is hereby AFFIRMED. Appellant is ordered to pay the amount
of P50,000 as civil indemnity and P25,000 as temperate damages to the
heirs of Alberto Pagtananan.
SO ORDERED.
Vitug, (Chairman), Sandoval-Gutierrez,  and Carpio-Morales, JJ.,  concur.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 204
G.R. No. 140756. April 4, 2003.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUAN
GONZALES ESCOTE, JR. @ Jun Mantika of Sta. Lucia, Angat, Bulacan
and VICTOR ACUYAN y OCHOVILLOS @ Vic Arroyo of Sto. Nino,
Poblacion, Bustos, Bulacan, accused-appellants.
Constitutional Law; Due Process; Right of Confrontation; Criminal Procedure;
The right to cross-examine is a constitutional right anchored on due process;
The right of cross-examination has always been understood as requiring not
necessarily an actual cross-examination but merely an opportunity to
exercise the right to cross-examine if desired.—The contentions of Juan and
Victor are not meritorious. There is no factual and legal basis for their claim
that they were illegally deprived of their constitutional and statutory right to
fully cross-examine Rodolfo. The Court agrees that the right to cross-
examine is a constitutional right anchored on due process. It is a statutory
right found in Section 1(f), Rule 115 of the Revised Rules of Criminal
Procedure which provides that the accused has the right to confront and
cross-examine the witnesses against him at the trial. However, the right has
always been understood as requiring not necessarily an actual cross-
examination but merely an opportunity to exercise the right to cross-examine
if desired. What is proscribed by statutory norm and jurisprudential precept
is the absence of the opportunity to cross-examine. The right is a personal
one and may be waived expressly or impliedly. There is an implied waiver
when the party was given the opportunity to confront and cross-examine an
opposing witness but failed to take advantage of it for reasons attributable to
himself alone. If by his actuations, the accused lost his opportunity to cross-
examine wholly or in part the witnesses against him, his right to cross-
examine is impliedly waived. The testimony given on direct examination of
the witness will be received or allowed to remain in the record.
Same; Same; Same; Same; The task of recalling a witness for cross-
examination is, in law, imposed on the party who wishes to exercise said
right.—The court ordered the continuation of the trial for the cross-

examination of Rodolfo on January 20, 1998 at 8:30 a.m. During the trial on
January 20, 1998, Rodolfo was present but accused-appellants’ counsel was
absent. The court issued an order declaring that for failure of said counsel to
appear before the court for his cross-examination of Rodolfo, Victor and Juan
waived their right to continue with the cross-examination of said witness.
During the trial set for February 3, 1998, the counsel of Juan and Victor
appeared but did not move for a reconsideration of the court’s order dated
January 20, 1998 and for the recall of Rodolfo Cacatian for further cross-
examination. It behooved counsel for Juan and Victor to file said motion and
pray that the trial court order the recall of Rodolfo on the witness stand.
Juan and Victor cannot just fold their arms and supinely wait for the
prosecution or for the trial court to initiate the recall of said witness. Indeed,
the Court held in Fulgado vs. Court of Appeals, et al: x x x The task of
recalling a witness for cross examination is, in law, imposed on the party
who wishes to exercise said right. This is so because the right, being
personal and waivable, the intention to utilize it must be expressed. Silence
or failure to assert it on time amounts to a renunciation thereof. Thus, it
should be the counsel for the opposing party who should move to cross-
examine plaintiff’s witnesses. It is absurd for the plaintiff himself to ask the
court to schedule the cross-examination of his own witnesses because it is
not his obligation to ensure that his deponents are cross-examined. Having
presented his witnesses, the burden shifts to his opponent who must now
make the appropriate move. Indeed, the rule of placing the burden of the
case on plaintiff’s shoulders can be construed to extremes as what happened
in the instant proceedings.
Same; Same; Same; Same; Estoppel; The doctrine of estoppel states that if
one maintains silence when in conscience he ought to speak, equity will
debar him from speaking when in conscience he ought to remain silent—he
who remains silent when he ought to speak cannot be heard to speak when
he should be silent.—Juan and Victor did not even file any motion to reopen
the case before the trial court rendered its decision to allow them to cross-
examine Rodolfo. They remained mute after judgment was rendered against
them by the trial court. Neither did they file any petition for certiorari with
the Court of Appeals for the nullification of the Order of the trial court dated
January 20, 1998 declaring that they had waived their right to cross-examine
Rodolfo. It was only on appeal to this Court that Juan and Victor averred for
the first time that they were deprived of their right to cross-examine Rodolfo.
It is now too late in the day for Juan and Victor to do so. The doctrine of
estoppel states that if one maintains silence when in conscience he ought to
speak, equity will debar him from speaking when in conscience he ought to
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 205
remain silent. He who remains silent when he ought to speak cannot be
heard to speak when he should be silent.
Criminal Law; Witnesses; The Court has held in a catena of cases that it is
the most natural reaction of victims of violence to strive to see the
appearance of the perpetrators of the crime and to observe the manner in
which the crime was committed.—The Court agrees with the trial court. It
may be true that Romulo was frightened when Juan and Victor suddenly
announced a holdup and fired their guns upward, but it does not follow that
he and Rodolfo failed to have a good look at Juan and Victor during the
entire time the robbery was taking place. The Court has held in a catena of
cases that it is the most natural reaction of victims of violence to strive to
see the appearance of the perpetrators of the crime and to observe the
manner in which the crime was committed. Rodolfo and Romulo had a good
look at both Juan and Victor before, during and after they staged the
robbery and before they alighted from the bus. The evidence on record
shows that when Juan and Victor boarded the bus and while the said vehicle
was on its way to its destination, Romulo stationed himself by the door of
the bus located in the mid-section of the vehicle. The lights inside the bus
were on. Juan seated himself in the middle row of the passengers’ seat near
the center aisle while Victor stood near the door of the bus about a meter or
so from Romulo. Romulo, Juan and Victor were near each other. Moreover,
Juan divested Romulo of his collection of the fares from the passengers.
Romulo thus had a face-to-face encounter with Juan. After shooting SPO1
Manio, Jr. at the rear portion of the bus, Juan and Victor passed by where
Romulo was standing and gave their instructions to him. Considering all the
facts and circumstances, there is no iota of doubt that Romulo saw and
recognized Juan and Victor before, during and after the heist.
Same; Robbery with Homicide; In the absence of an explanation of how one
has come into possession of stolen effects belonging to a person wounded
and treacherously killed, he must necessarily be considered the author of the
aggression and death of the said person and of the robbery committed on
him.—When he was accosted by SPO3 Romeo Meneses on October 25, 1997
in Tarlac, Tarlac, Juan was in possession of the identification card of the slain
police officer. Juan failed to explain to the trial court how and under what
circumstances he came into possession of said identification card. Juan must
necessarily be considered the author of the robbery and the killing of SPO1
Manio, Jr. In People v. Mantung, we held: x x x [T]he recovery of part of the
loot from Mantung or the time of his arrest gave rise to a legal presumption
of his guilt. As this Court has held, ‘[I]n the absence of an explanation of
how one has come into possession of stolen effects belonging to a person
wounded and treacherously killed, he must necessarily be considered the

author of the aggression and death of the said person and of the robbery
committed on him.’
Same; Same; Police Line-Ups; There is no law or police regulation requiring a
police line-up for proper identification in every case—even if there was no
police line-up, there could still be proper and reliable identification as long as
such identification was not suggested or instigated to the witness by the
police.—While police investigators did not place Juan and Victor in a police
line-up for proper identification by Rodolfo and Romulo, it cannot thereby be
concluded that absent such line-up, their identification by Romulo and
Rodolfo as the authors of the robbery with homicide was unreliable. There is
no law or police regulation requiring a police line-up for proper identification
in every case. Even if there was no police line-up, there could still be proper
and reliable identification as long as such identification was not suggested or
instigated to the witness by the police. In this case, there is no evidence that
the police officers had supplied or even suggested to Rodolfo and Romulo
the identities of Juan and Victor as the perpetrators of the robbery and the
killing of SPO1 Manio, Jr.
Same; Same; Elements.—To warrant the conviction of Juan and Victor for
the said charge, the prosecution was burdened to prove the confluence of
the following essential elements: x x x (a) the taking of personal property
with the use of violence or intimidation against a person; (b) the property
thus taken belongs to another; (c) the taking is characterized by intent to
gain or animus lucrandi; and (d) on the occasion of the robbery or by reason
thereof, the crime of homicide, which is therein used in a generic sense, was
committed. x x x
Same; Same; In robbery with homicide, so long as the intention of the felons
was to rob, the killing may occur before, during or after the robbery.—The
intent to rob must precede the taking of human life. In robbery with
homicide, so long as the intention of the felons was to rob, the killing may
occur before, during or after the robbery. In People v. Barut, the Court held
that: In the controlling Spanish version of article 294, it is provided that
there is robbery with homicide “cuando con motivo o con ocasión del robo
resultare homicidio”. “Basta que entre aquel este exista una relación
meramente ocasional. No se requiere que el homicidio se cometa como
medio de ejecución del robo, ni que el culpable tenga intención de matar, el
delito existe según constanta jurisprudencia, aun cuando no concurra animo
homicida. Incluso si la muerte sobreviniere por mero accidente, siempre que
el homicidio se produzca con motivo con ocasión del robo, siendo indiferente
que la muerte sea anterior, coetánea o posterior a éste” (2 Cuello Calon,
Derecho Penal, 1975 14th Ed. P. 872).
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 206
Same; Same; Even if the victim of robbery is other than the victim of the
homicide committed on the occasion of or by reason of the robbery,
nevertheless, there is only one single and indivisible felony of robbery with
homicide; All the crimes committed on the occasion or by reason of the
robbery are merged and integrated into a single and indivisible felony of
robbery with homicide.—Even if the victim of robbery is other than the victim
of the homicide committed on the occasion of or by reason of the robbery,
nevertheless, there is only one single and indivisible felony of robbery with
homicide. All the crimes committed on the occasion or by reason of the
robbery are merged and integrated into a single and indivisible felony of
robbery with homicide. This was the ruling of the Supreme Court of Spain on
September 9, 1886, et sequitur cited by this Court in People v. Mangulabnan,
et al. We see, therefore, that in order to determine the existence of the
crime of robbery with homicide it is enough that a homicide would result by
reason or on the occasion of the robbery (Decision of the Supreme Court of
Spain of November 26, 1892, and January 7, 1878, quoted in 2 Hidalgo’s
Penal Code, p. 267 and 259-260, respectively). This High Tribunal speaking
of the accessory character of the circumstances leading to the homicide, has
also held that it is immaterial that the death would supervene by mere
accident (Decision of September 9, 1886; October 22, 1907; April 30, 1910
and July 14, 1917), provided that the homicide be produced by reason or on
occasion of the robbery, inasmuch as it is only the result obtained, without
reference or distinction as to the circumstances, causes, modes or persons
intervening in the commission of the crime, that has to be taken into
consideration (Decision of January 12, 1889—see Cuello Calon’s Codigo
Penal, p. 501-502).
Same; Same; Conspiracy; Whenever homicide has been committed by
reason or on the occasion of the robbery, all those who took part as
principals in the robbery will also be held guilty as principals of robbery with
homicide although they did not take part in the homicide, unless it appears
that they endeavored to prevent the homicide.—Case law has it that
whenever homicide has been committed by reason of or on the occasion of
the robbery, all those who took part as principals in the robbery will also be
held guilty as principals of robbery with homicide although they did not take
part in the homicide, unless it appears that they endeavored to prevent the
homicide. In this case, the prosecution proved beyond reasonable doubt that
Juan and Victor conspired and confabulated together in robbing the
passengers of the Five Star Bus of their money and valuables and Romulo of
his collections of the fares of the passengers and in killing SPO1 Manio, Jr.
with impunity on the occasion of the robbery. Hence, both Juan and Victor
are guilty as principals by direct participation of the felony of robbery with

homicide under paragraph 1, Article 294 of the Revised Penal Code, as
amended by R.A. 7659, punishable by reclusion perpetua to death.
Same; Same; Aggravating Circumstances; Treachery; Elements; 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 to himself.—The Court agrees
with the trial court that treachery was attendant in the commission of the
crime. There is treachery when the following essential elements are present,
viz: (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. 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. Treachery may also
be appreciated even if the victim was warned of the danger to his life where
he was defenseless and unable to flee at the time of the infliction of the coup
de grace. In the case at bar, the victim suffered six wounds, one on the
mouth, another on the right ear, one on the shoulder, another on the right
breast, one on the upper right cornea of the sternum and one above the
right iliac crest. Juan and Victor were armed with handguns. They first
disarmed SPO1 Manio, Jr. and. then shot him even as he pleaded for dear
life. When the victim was shot, he was defenseless. He was shot at close
range, thus insuring his death. The victim was on his way to rejoin his family
after a hard day’s work. Instead, he was mercilessly shot to death, leaving
his family in grief for his untimely demise. The killing is a grim example of
the utter inhumanity of man to his fellowmen.
Same; Same; Same; Same; Statutory Construction; In construing the Old
Penal Code and the Revised Penal Code, the Supreme Court had accorded
respect and persuasive, if not conclusive effect, to the decisions of the
Supreme Court of Spain interpreting and construing the 1850 Penal Code of
Spain, as amended by Codigo Penal Reformado de 1870.—It must be
recalled that by Royal Order of December 17, 1886 the 1850 Penal Code in
force in Spain, as amended by the Codigo Penal Reformado de 1870 was
applied in the Philippines. The Penal Code of 1887 in the Philippines was
amended by Act 3815, now known as the Revised Penal Code, which was
enacted and published in Spanish. In construing the Old Penal Code and the
Revised Penal Code, this Court had accorded respect and persuasive, if not
conclusive effect to the decisions of the Supreme Court of Spain interpreting
and construing the 1850 Penal Code of Spain, as amended by Codigo Penal
Reformado de 1870.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 207
Same; Same; Same; Same; Treachery is a generic aggravating circumstance
in robbery with homicide when the victim of homicide is killed by treachery,
and in the application of treachery as a generic aggravating circumstance to
robbery with homicide, the law looks at the constituent crime of homicide
which is a crime against persons and not at the constituent crime of robbery
which is a crime against property.—In fine, in the application of treachery as
a generic aggravating circumstance to robbery with homicide, the law looks
at the constituent crime of homicide which is a crime against persons and
not at the constituent crime of robbery which is a crime against property.
Treachery is applied to the constituent crime of “homicide” and not to the
constituent crime of “robbery” of the special complex crime of robbery with
homicide. The crime of robbery with homicide does not lose its classification
as a crime against property or as a special complex and single and indivisible
crime simply because treachery is appreciated as a generic aggravating
circumstance. Treachery merely increases the penalty for the crime
conformably with Article 63 of the Revised Penal Code absent any generic
mitigating circumstance. In sum then, treachery is a generic aggravating
circumstance in robbery with homicide when the victim of homicide is killed
by treachery.
Same; Same; Same; Circumstances which consist in the material execution
of the act, or in the means employed to accomplish it, shall serve to
aggravate or mitigate the liability of those persons only who had knowledge
of them at the time of the execution of the act or their cooperation therein.—
On the second issue, we also rule in the affirmative. Article 62, paragraph 4
of the Revised Penal Code which was taken from Article 80 of the Codigo
Penal Reformado de 1870, provides that circumstances which consist in the
material execution of the act, or in the means employed to accomplish it,
shall serve to aggravate or mitigate the liability of those persons only who
had knowledge of them at the time of the execution of the act or their
cooperation therein. The circumstances attending the commission of a crime
either relate to the persons participating in the crime or into its manner of
execution or to the means employed. The latter has a direct bearing upon
the criminal liability of all the accused who have knowledge thereof at the
time of the commission of the crime or of their cooperation thereon.
Accordingly, the Spanish Supreme Court held in its Sentencia dated
December 17, 1875 that where two or more persons perpetrate the crime of
robbery with homicide, the generic aggravating circumstance of treachery
shall be appreciated against all of the felons who had knowledge of the
manner of the killing of victims of homicide
Same; Same; Same; Treachery; An aggravating circumstance which was not
alleged in the Information cannot be appreciated.—Be that as it may,

treachery cannot be appreciated against Juan and Victor in the case at bar
because the same was not alleged in the Information as mandated by
Section 8, Rule 110 of the Revised Rules on Criminal Procedures which
reads: Sec. 8. Designation of the offense.—The complaint or information
shall state the designation of the offense given by the statute, aver the acts
or omissions constituting the offense and specify its qualifying and
aggravating circumstances. If there is no designation of the offense,
reference shall be made to the section or subsection of the statute punishing
it. Although at the time the crime was committed, generic aggravating
circumstance need not be alleged in the Information, however, the general
rule had been applied retroactively because if it is more favorable to the
accused. Even if treachery is proven but it is not alleged in the information,
treachery cannot aggravate the penalty for the crime.
Same; Same; Same; Damages; The retroactive application of Section 8, Rule
110 of the Revised Rules of Criminal Procedure should not impair the right of
the heirs to exemplary damages which had already accrued when the crime
was committed prior to the effectivity of said rule.—Since the penalty
imposed on Juan and Victor is reclusion perpetua, the heirs of the victim are
entitled to civil indemnity in the amount of P50,000.00. The heirs are also
entitled to moral damages in the amount of P50,000.00, Rosemarie Manio
having testified on the factual basis thereof. Considering that treachery
aggravated the crime, the heirs are also entitled to exemplary damages in
the amount of P25,000.00. This Court held in People vs. Catubig that the
retroactive application of Section 8, Rule 110 of the Revised Rules of Criminal
Procedure should not impair the right of the heirs to exemplary damages
which had already accrued when the crime was committed prior to the
effectivity of the said rule. Juan and Victor are also jointly and severally liable
to the said heirs in the total amount of P30,000.00 as actual damages, the
prosecution having adduced evidence receipts for said amounts. The heirs
are not entitled to expenses allegedly incurred by them during the wake as
such expenses are not supported by receipts. However, in lieu thereof, the
heirs are entitled to temperate damages in the amount of P20,000.00.
VITUG, J., Separate Opinion:
Criminal Law; Complex Crimes; Robbery with Homicide; The rule for ordinary
complex crimes as set out in Article 48 of the Revised Penal Code evidently is
not in square with a special complex crime, like robbery with homicide,
where the law effectively treats the offense as an individual felony in itself
and then prescribes a specific penalty therefor.—In an ordinary complex
crime, Article 48 of the Revised Penal Code expresses that “the penalty for
the most serious crime shall be imposed, the same to be applied in its
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 208
maximum period.” Article 48 means then that in the imposition of the penalty
for such an ordinary complex crime, i.e., where no specific penalty is
prescribed for the complex crime itself, the composite offenses and their
respective penalties are individually factored, and it is possible, indeed
warranted, that any aggravating circumstance, generic or qualified, even if it
be peculiar to only one of the constituent crimes, can and should be logically
considered in order to determine which of the composite crimes is the “most
serious crime,” the penalty for which shall then “be applied in its maximum
period.” The rule evidently is not in square with a special complex crime, like
robbery with homicide, where the law effectively treats the offense as an
individual felony in itself and then prescribes a specific penalty therefor.
Same; Same; Same; The suggestion that treachery could be appreciated
“only insofar” as the killing is concerned would unavoidably be to consider
and hold robbery with homicide as being separately penalized and to thus
discount its classification under Article 294 of the Code as a distinct crime
itself with a distinct penalty prescribed therefor.—There being just an
independent prescribed penalty for the offense, any circumstance that can
aggravate that penalty should be germane and generic not to one but to
both of the constituent offenses that comprise the elements of the crime.
The suggestion that treachery could be appreciated “only insofar” as the
killing is concerned would unavoidably be to consider and hold robbery and
homicide as being separately penalized and to thus discount its classification
under Article 294 of the Code as a distinct crime itself with a distinct penalty
prescribed therefor. Most importantly, such interpretation would be to treat
the special complex crime of robbery with homicide no differently from
ordinary complex crimes defined under Article 48, where the composite
crimes are separately regarded and weighed in the ultimate imposition of the
penalty. If such were intended, the law could have easily so provided, with
the penalty for the higher of the two offenses to be then accordingly
imposed on the malefactor. In prescribing, however, the penalty of reclusion
perpetua to death, where homicide results by reason or on occasion of the
robbery, the law has virtually taken into account the particularly “nefarious”
nature of the crime, where human life is taken, howsoever committed, to
pursue the criminal intent to gain with the use of violence against or
intimidation of any person.
Same; Same; Same; Distinct penalties prescribed by law in special complex
crimes is in recognition of the primacy given to criminal intent over the overt
acts that are done to achieve that intent.—Distinct penalties prescribed by
law in special complex crimes is in recognition of the primacy given to
criminal intent over the overt acts that are done to achieve that intent. This
conclusion is made implicit in various provisions of the Revised Penal Code.

Thus, practically all of the justifying circumstances, as well as the exempting
circumstances of accident (paragraph 4, Article 12) and lawful or insuperable
cause (paragraph 7, Article 12), are based on the lack of criminal intent. In
felonies committed by means of dolo, as opposed to those committed by
means of culpa (including offenses punished under special laws), criminal
intent is primordial and overt acts are considered basically as being mere
manifestations of criminal intent. Paragraph 2, Article 4, of the Revised Penal
Code places emphasis on “intent” over effect, as it assigns criminal liability to
one who has committed an “impossible crime,” said person having intended
and pursued such intent to commit a felony although technically, no crime
has actually been committed. Article 134 of the same Code, penalizing the
crime of rebellion, imposes a distinct penalty, the rebel being moved by a
single intent which is to overthrow the existing government, and ignores
individual acts committed in the furtherance of such intent.
AUTOMATIC REVIEW of a decision of the Regional Trial Court of Malolos,
Bulacan, Br. 11.
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiff-appellee.
Public Attorney’s Office for accused-appellants.
DECISION
CALLEJO, SR., J.:
Robbery with homicide is classified as a crime against property.
Nevertheless, treachery is a generic aggravating circumstance in said crime if
the victim of homicide is killed treacherously. The Supreme Court of Spain so
ruled. So does the Court rule in this case, as it had done for decades.
Before the Court on automatic review is the Decision [1] of Branch 11 of
the Regional Trial Court of Bulacan in Criminal Case No. 443-M-97 convicting
accused-appellants Juan Gonzales Escote, Jr. and Victor Acuyan of the
complex crime of robbery with homicide, meting on each of them the
supreme penalty of death, and ordering them to pay the heirs of the victim,
SPO1 Jose C. Manio, Jr., the total amount of P300,000.00 by way of actual
and moral damages and to pay to Five Star Bus, Inc., the amount
of P6,000.00 by way of actual damages.
The Facts
The antecedent facts as established by the prosecution are as follows:
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 209
On September 28, 1996 at past midnight, Rodolfo Cacatian, the regular
driver of Five Star Passenger Bus bearing Plate No. ABS-793, drove the bus
from its terminal at Pasay City to its destination in Bolinao, Pangasinan. Also
on board was Romulo Digap, the regular conductor of the bus, as well as
some passengers. At Camachile, Balintawak, six passengers boarded the bus,
including Victor Acuyan and Juan Gonzales Escote, Jr. who were wearing
maong pants, rubber shoes, hats and jackets.[2] Juan seated himself on the
third seat near the aisle, in the middle row of the passengers seats, while
Victor stood by the door in the mid-portion of the bus beside
Romulo. Another passenger, SPO1 Jose C. Manio, Jr., a resident of Angeles
City, was seated at the rear portion of the bus on his way home to Angeles
City. Tucked on his waist was his service gun bearing Serial Number
769806. Every now and then, Rodolfo looked at the side view mirror as well
as the rear view and center mirrors installed atop the drivers seat to monitor
any incoming and overtaking vehicles and to observe the passengers of the
bus.
The lights of the bus were on even as some of the passengers slept.
When the bus was travelling along the highway in Plaridel, Bulacan, Juan
and Victor suddenly stood up, whipped out their handguns and announced a
holdup. Petrified, Rodolfo glanced at the center mirror towards the
passengers seat and saw Juan and Victor armed with handguns. Juan fired
his gun upward to awaken and scare off the passengers. Victor followed suit
and fired his gun upward. Juan and Victor then accosted the passengers and
divested them of their money and valuables. Juan divested Romulo of the
fares he had collected from the passengers. The felons then went to the
place Manio, Jr. was seated and demanded that he show them his
identification card and wallet. Manio, Jr. brought out his identification card
bearing No. 00898.[3] Juan and Victor took the identification card of the
police officer as well as his service gun and told him:  Pasensya ka na Pare,
papatayin ka namin, baril mo rin and papatay sa iyo.  The police officer
pleaded for mercy: Pare maawa ka sa akin.  May pamilya ako. However,
Victor and Juan ignored the plea of the police officer and shot him on the
mouth, right ear, chest and right side of his body. Manio, Jr. sustained six
entrance wounds. He fell to the floor of the bus.Victor and Juan then moved
towards the driver Rodolfo, seated themselves beside him and ordered the
latter to maintain the speed of the bus. Rodolfo heard one of the felons
saying: Ganyan lang ang pumatay ng tao.  Parang pumapatay ng manok. The
other said: Ayos na naman tayo pare. Malaki-laki ito. Victor and Juan further
told Rodolfo that after they (Victor and Juan) shall have alighted from the
bus, he (Rodolfo) should continue driving the bus and not report the incident
along the way. The robbers assured Rodolfo that if the latter will follow their

instructions, he will not be harmed. Victor and Juan ordered Rodolfo to stop
the bus along the overpass in Mexico, Pampanga where they alighted from
the bus. The robbery was over in 25 minutes.
When the bus reached Dau, Mabalacat, Pampanga, Rodolfo and Romulo
forthwith reported the incident to the police authorities. The cadaver of SPO1
Manio, Jr. was brought to the funeral parlor where Dr. Alejandro D.
Tolentino, the Municipal Health Officer of Mabalacat, Pampanga, performed
an autopsy on the cadaver of the police officer. The doctor prepared and
signed an autopsy report detailing the wounds sustained by the police officer
and the cause of his death:
Body still flaccid (not in rigor mortis) bathed with his own blood. There were
6 entrance wounds and 6 exit wounds. All the entrance were located on his
right side. An entrance (0.5 cm x 0.5 cm.) located infront of the right ear
exited at the left side just below the ear lobe. Another entrance through the
mouth exited at the back of the head fracturing the occiput with an opening
of (1.5 cm x 2 cm). Blood CSF and brain tissues came out. Another fatal
bullet entered at the upper right cornea of the sternum, entered the chest
cavity pierced the heart and left lung and exited at the left axillary
line. Severe hemorrhage in the chest cavity came from the heart and left
lung. The other 3 bullets entered the right side and exited on the same
side. One entrance at the top of the right shoulder exited at the medial side
of the right arm.The other entered above the right breast and exited at the
right lateral abdominal wall travelling below muscles and subcutaneous
tissues without entering the cavities. Lastly another bullet entered above the
right iliac crest travelled superficially and exited above the right inguinal line.
Cause of Death:
Shock, massive internal and external hemorrhage, complete brain destruction
and injury to the heart and left lung caused by multiple gunshot wounds. [4]
Rodolfo and Romulo proceeded to the police station of Plaridel, Bulacan
where they reported the robbery and gave their respective sworn
statements.[5] SPO1 Manio, Jr. was survived by his wife Rosario Manio and
their four young children. Rosario spent P20,000.00 for the coffin
and P10,000.00 for the burial lot of the slain police officer. [6] Manio, Jr. was
38 years old when he died and had a gross salary of P8,085.00 a month.[7]
Barely a month thereafter, or on October 25, 1996, at about midnight,
SPO3 Romeo Meneses, the team leader of Alert Team No. 1 of Tarlac Police
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 210
Station, and PO3 Florante S. Ferrer were at the police checkpoint along the
national highway in Tarlac, Tarlac. At the time, the Bambang-Concepcion
bridge was closed to traffic and the police officers were tasked to divert
traffic to the Sta. Rosa road. Momentarily, a white colored taxi cab without
any plate number on its front fender came to view. Meneses stopped the cab
and asked the driver, who turned out to be the accused Juan Gonzales
Escote, Jr., for his identification card. Juan told Meneses that he was a
policeman and handed over to Meneses the identification card of SPO1
Manio, Jr. and the money which Juan and Victor took from Manio, Jr. during
the heist on September 28, 1996. [8] Meneses became suspicious when he
noted that the identification card had already expired on March 16, 1995. He
asked Juan if the latter had a new pay slip. Juan could not produce any. He
finally confessed to Meneses that he was not a policeman. Meneses brought
Juan to the police station. When police officers frisked Juan for any deadly
weapon, they found five live bullets of a 9 millimeter firearm in his
pocket. The police officers confiscated the ammunition. In the course of the
investigation, Juan admitted to the police investigators that he and Victor,
alias Victor Arroyo, staged the robbery on board Five Star Bus and are
responsible for the death of SPO1 Manio, Jr. in Plaridel, Bulacan. Meneses
and Ferrer executed their joint affiavit of arrest of Juan. [9] Juan was
subsequently turned over to the Plaridel Police Station where Romulo
identified him through the latters picture as one of those who robbed the
passengers of the Five Star Bus with Plate No. ABS-793 and killed SPO1
Manio, Jr. on September 28, 1996. In the course of their investigation, the
Plaridel Police Station Investigators learned that Victor was a native of
Laoang, Northern Samar.[10] On April 4, 1997, an Information charging Juan
Gonzales Escote, Jr. and Victor Acuyan with robbery with homicide was filed
with the Regional Trial Court of Bulacan. The Information reads:
That on or about the 28th day of September 1996, in the municipality of
Plaridel, province of Bulacan, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating
together and mutually helping each other, armed with firearms, did then and
there wilfully, unlawfully and feloniously, with intent of (sic) gain and by
means of force, violence and intimidation, take, rob and carry away with one
(1) necklace and cash in [the] undetermine[d] amount of one SPO1 Jose C.
Manio, Jr., to the damage and prejudice of the said owner in the said
undetermine[d] amount; that simultaneously or on the occassion (sic) of said
robbery, said accused by means of violence and intimidation and in
furtherance of their conspiracy attack, assault and shoot with the service
firearm of the said SPO1 Jose C. Manio, Jr., thereby inflicting serious physical
injuries which resulted (sic) the death of the said SPO1 Jose C. Manio, Jr.
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 211

Contrary to law.[11] to pay the Five Star Bus Company the amount of P6,000.00 as actual
damages.The decretal portion of the decision reads:
On the strength of a warrant of arrest, the police officers arrested Victor
in Laoang, Northern Samar and had him incarcerated in the Bulacan WHEREFORE, this Court finds both accused, Juan Gonzales Escote, Jr. and
Provincial Jail. Assisted by Atty. Ramiro Osorio, their counsel de parte, Juan Victor Acuyan GUILTY beyond reasonable doubt of Robbery with Homicide as
and Victor were duly arraigned and entered their plea of not guilty to the penalized under Art. 294 of the Revised Penal Code as amended and hereby
charge. Trial thereafter ensued. After the prosecution had rested its case on sentences both to suffer the supreme penalty of Death and to indemnify the
August 26, 1998, Juan escaped from the provincial jail. [12] The trial court heirs of the late SPO1 Jose C. Manio, Jr., the amount of P300,000.00 as
issued a bench warrant on September 22, 1998 for the arrest of said actual and moral damages and to pay the Five Star Bus P6,000.00 as actual
accused-appellant.[13] In the meantime, Victor adduced his evidence. damage.
Victor denied the charge and interposed the defense of alibi. He testified
SO ORDERED.[15]
that in 1996, he worked as a tire man in the vulcanizing shop located in
Banga I, Plaridel, Bulacan owned by Tony Boy Negro. On one occasion,
Ilarde Victorino, a customer of Tony Boy Negro, ordered Victor to sell a
tire. Victor sold the tire but did not turn over the proceeds of the sale to Assignment of Errors
Ilarde.The latter hated Victor for his misdeed. The shop was later demolished
and after two months of employment, Victor returned to Barangay Muwal-
Buwal, Laoang, Northern Samar. On September 26, 1996, at 9:30 p.m., Juan and Victor assail the Decision of the trial court and contend that:
Victor was at the town fiesta in Laoang. Victor and his friends, Joseph I
Iringco and Rickey Lorcio were having a drinking spree in the house of
Barangay Captain Ike Baluya. At 11:30 p.m., the three left the house of the
THE TRIAL COURT ERRED IN HOLDING THAT RODOLFO CACATIAN AND
barangay captain and attended the public dance at the town
ROMULO DIGAP, DRIVER AND CONDUCTOR OF THE FIVE STAR BUS,
auditorium. Victor and his friends left the auditorium at 5:30 a.m. of
RESPECTIVELY, WERE ABLE TO POSITIVELY IDENTIFY THE TWO (2) MEN
September 27, 1996. Victor likewise testified that he never met Juan until his
WHO HELD-UP THEIR BUS AND KILLED ONE PASSENGER THEREOF AT
arrest and detention at the Bulacan Provincial Jail. One of the inmates in said
AROUND 3:00 OCLOCK IN THE EARLY MORNING OF SEPTEMBER 28, 1996.
provincial jail was Ilarde Victorino. Victor learned that Ilarde implicated him
for the robbery of the Five Star Bus and the killing of SPO1 Manio, Jr. to hit
back at him for his failure to turn over to Ilarde the proceeds of the sale of II
the latters tire.
THE TRIAL COURT ERRED IN FINDING THE TWO (2) ACCUSED GUILTY
On January 14, 1999, Juan was rearrested in Daet, Camarines Norte. BEYOND REASONABLE DOUBT OF THE CRIME OF ROBBERY WITH
[14]
 However, he no longer adduced any evidence in his behalf. HOMICIDE.[16]

The Verdict of the Trial Court The Courts Verdict

On March 11, 1999, the trial court rendered its Decision judgment Anent the first assignment of error, Juan and Victor contend that the
finding Juan and Victor guilty beyond reasonable doubt of the crime charged, trial court committed a reversible error in relying on the testimony of
meted on each of them the penalty of death and ordered them to Rodolfo, the bus conductor, for convicting them of the crime charged. They
pay P300,000.00 as actual and moral damages to the heirs of the victim and aver that although their counsel was able to initially cross-examine Rodolfo,

the former failed to continue with and terminate his cross-examination of the
said witness through no fault of his as the witness failed to appear in
subsequent proceedings. They assert that even if the testimonies of Rodolfo
and Romulo were to be considered, the two witnesses were so petrified
during the robbery that they were not able to look at the felons and hence
could not positively identify accused-appellants as the perpetrators of the
crime. They argue that the police investigators never conducted a police line-
up for the identification of the authors of the crime.
The contentions of Juan and Victor are not meritorious. There is no
factual and legal basis for their claim that they were illegally deprived of their
constitutional and statutory right to fully cross-examine Rodolfo. The Court
agrees that the right to cross-examine is a constitutional right anchored on
due process.[17] It is a statutory right found in Section 1(f), Rule 115 of the
Revised Rules of Criminal Procedure which provides that the accused has the
right to confront and cross-examine the witnesses against him at the
trial. However, the right has always been understood as requiring not
necessarily an actual cross-examination but merely an opportunity to
exercise the right to cross-examine if desired. [18] What is proscribed by
statutory norm and jurisprudential precept is the absence of the opportunity
to cross-examine.[19] The right is a personal one and may be waived
expressly or impliedly. There is an implied waiver when the party was given
the opportunity to confront and cross-examine an opposing witness but
failed to take advantage of it for reasons attributable to himself alone. [20] If
by his actuations, the accused lost his opportunity to cross-examine wholly
or in part the witnesses against him, his right to cross-examine is impliedly
waived.[21] The testimony given on direct examination of the witness will be
received or allowed to remain in the record.[22]
In this case, the original records show that after several resettings, the
initial trial for the presentation by the prosecution of its evidence-in-chief was
set on November 18, 1997 and December 5, 1997, both at 9:00 a.m.
[23]
 Rodolfo testified on direct examination on November 18, 1997. The
counsel of Juan and Victor forthwith commenced his cross-examination of
the witness but because of the manifestation of said counsel that he cannot
finish his cross-examination, the court ordered the continuation thereof to
December 5, 1997.[24] On December 5, 1997, Rodolfo did not appear before
the court for the continuation of his cross-examination but Rosemarie Manio,
the widow of the victim did. The prosecution presented her as witness.Her
testimony was terminated. The court ordered the continuation of the trial for
the cross-examination of Rodolfo on January 20, 1998 at 8:30 a.m. [25] During
the trial on January 20, 1998, Rodolfo was present but accused-appellants
counsel was absent. The court issued an order declaring that for failure of
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 212
said counsel to appear before the court for his cross-examination of Rodolfo,
Victor and Juan waived their right to continue with the cross-examination of
said witness.[26] During the trial set for February 3, 1998, the counsel of Juan
and Victor appeared but did not move for a reconsideration of the courts
order dated January 20, 1998 and for the recall of Rodolfo Cacatian for
further cross-examination. It behooved counsel for Juan and Victor to file
said motion and pray that the trial court order the recall of Rodolfo on the
witness stand. Juan and Victor cannot just fold their arms and supinely wait
for the prosecution or for the trial court to initiate the recall of said
witness. Indeed, the Court held in Fulgado vs. Court of Appeals, et al:
xxx
The task of recalling a witness for cross examination is, in law, imposed on
the party who wishes to exercise said right. This is so because the right,
being personal and waivable, the intention to utilize it must be
expressed. Silence or failure to assert it on time amounts to a renunciation
thereof. Thus, it should be the counsel for the opposing party who should
move to cross-examine plaintiffs witnesses. It is absurd for the plaintiff
himself to ask the court to schedule the cross-examination of his own
witnesses because it is not his obligation to ensure that his deponents are
cross-examined. Having presented his witnesses, the burden shifts to his
opponent who must now make the appropriate move. Indeed, the rule of
placing the burden of the case on plaintiffs shoulders can be construed to
extremes as what happened in the instant proceedings.  [27]
The trial was reset to March 31, April 17 and 24, 1998, all at 8:30 a.m.
because of the non-availability of the other witnesses of the prosecution.
[28]
 On March 31, 1998, the prosecution presented Dr. Alejandro Tolentino,
PO2 Rene de la Cruz and Romulo Digap. During the trial on April 17, 1998,
the counsel of Juan and Victor failed to appear. The trial was reset to June 3,
19 and 26, 1998.[29] The trial scheduled on June 3, 1998 was cancelled due
to the absence of the counsel of Juan and Victor. The court issued an order
appointing Atty. Roberto Ramirez as counsel for accused-appellants. [30]
During the trial on August 26, 1998, Atty. Ramirez appeared in behalf of
Juan and Victor. The prosecution rested its case after the presentation of
SPO2 Romeo Meneses and formally offered its documentary evidence. The
next trial was set on September 23, 1998 at 8:30 a.m. [31] On November 11,
1998, Juan and Victor commenced the presentation of their evidence with
the testimony of Victor. [32] They rested their case on January 27, 1999
without any evidence adduced by Juan.

Juan and Victor did not even file any motion to reopen the case before
the trial court rendered its decision to allow them to cross-examine
Rodolfo. They remained mute after judgment was rendered against them by
the trial court. Neither did they file any petition for certiorari with the Court
of Appeals for the nullification of the Order of the trial court dated January
20, 1998 declaring that they had waived their right to cross-examine
Rodolfo. It was only on appeal to this Court that Juan and Victor averred for
the first time that they were deprived of their right to cross-examine
Rodolfo. It is now too late in the day for Juan and Victor to do so. The
doctrine of estoppel states that if one maintains silence when in conscience
he ought to speak, equity will debar him from speaking when in conscience
he ought to remain silent. He who remains silent when he ought to speak
cannot be heard to speak when he should be silent. [33]
The contention of accused-appellants Juan and Victor that Rodolfo and
Romulo failed to identify them as the perpetrators of the crime charged is
disbelieved by the trial court, thus:
As can be gathered from the testimonies of the witnesses for the
prosecution, on September 28, 1996, the accused boarded at around 3:00
a.m. a Five Star Bus driven by Rodolfo Cacatian, bound to Pangasinan, in
Camachile, Balintawak, Quezon City. Twenty (20) minutes or so later, when
the bus reached the vicinity of Nabuag, Plaridel, Bulacan, along the North
Espressway, the accused with guns in hand suddenly stood up and
announced a hold-up. Simultaneously with the announcement of a hold-up,
Escote fired his gun upwards. Acuyan, meanwhile, took the gun of a man
seated at the back. Both then went on to take the money and valuables of
the passengers, including the bus conductors collections in the amount of
P6,000.00. Thereafter, the duo approached the man at the back telling him
in the vernacular Pasensiya ka na pare, papatayin ka namin. Baril mo rin ang
papatay sa iyo. They pointed their guns at him and fired several shots
oblivious of the plea for mercy of their victim. After the shooting, the latter
collapsed on the floor. The two (2) then went back at the front portion of the
bus behind the drivers seat and were overheard by the bus driver, Cacatian,
talking how easy it was to kill a man. The robbery and the killing were over
in 25 minutes. Upon reaching the Mexico overpass of the Expressway in
Pampanga, the two (2) got off the bus. The driver drove the bus to the
Mabalacat Police Station and reported the incident. During the investigation
conducted by the police, it was found out that the slain passenger was a
policeman, SPO1 Jose C. Manio, Jr. of the Caloocan City Police Department.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 213
The above version came from Rodolfo Cacatian and Romulo Digap, bus
driver and conductor, respectively, of the ill-fated Five Star Bus. [34]
The Court agrees with the trial court. It may be true that Romulo was
frightened when Juan and Victor suddenly announced a holdup and fired
their guns upward, but it does not follow that he and Rodolfo failed to have a
good look at Juan and Victor during the entire time the robbery was taking
place. The Court has held in a catena of cases that it is the most natural
reaction of victims of violence to strive to see the appearance of the
perpetrators of the crime and to observe the manner in which the crime was
committed.[35] Rodolfo and Romulo had a good look at both Juan and Victor
before, during and after they staged the robbery and before they alighted
from the bus. The evidence on record shows that when Juan and Victor
boarded the bus and while the said vehicle was on its way to its destination,
Romulo stationed himself by the door of the bus located in the mid-section of
the vehicle. The lights inside the bus were on. Juan seated himself in the
middle row of the passengers seat near the center aisle while Victor stood
near the door of the bus about a meter or so from Romulo. [36] Romulo, Juan
and Victor were near each other. Moreover, Juan divested Romulo of his
collection of the fares from the passengers.[37] Romulo thus had a face-to-
face encounter with Juan. After shooting SPO1 Manio, Jr. at the rear portion
of the bus, Juan and Victor passed by where Romulo was standing and gave
their instructions to him. Considering all the facts and circumstances, there is
no iota of doubt that Romulo saw and recognized Juan and Victor before,
during and after the heist. [38] Rodolfo looked many times on the rear, side
and center view mirrors to observe the center and rear portions of the bus
before and during the robbery. Rodolfo thus saw Juan and Victor stage the
robbery and kill SPO1 Manio, Jr. with impunity:
xxx
Q So, the announcement of hold-up was ahead of the firing of the
gun?
A Yes, sir.
Q And before the actual firing of the gun it was even still said bad
words before saying the hold-up?
A After they fired the gun they uttered bad words, sir.
Q Mr. Witness before the announcement of the hold-up you do not
have any idea that you will encounter that nature which took
place, is that correct?
 C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 214

A None, sir. A Two (2) on the side mirror, center mirror and rear view mirror,
sir.
Q Within the two (2) year[s] period that you are plying the route of
Manila to Bolinao that was your first experience of hold-up? Q The two side mirror protruding outside the bus?
A Yes, sir. A Yes, sir, they are in the side of the bus, sir.
Q And the speed of above 70 kilometers per hour your total Q One of them is located on the left and the other on the right,
attention is focus in front of the road, correct, Mr. witness? correct?
A Once in a while the driver look at the side mirror and the rear A Yes, sir.
view mirror, sir.
Q You only look at the side mirror when you are going to over
Q Before the announcement there was no reason for you to look at take, Mr. witness?
any at the rear mirror, correct, Mr. witness?
A No, sir.
Court:
Q Where is this center mirror located, Mr. witness?
Every now and then they usually look at the side mirror and on
the rear, that was his statement. A In the center, sir.

Atty. Osorio: Q What is the purpose of that?

(to the witness) A So that I can see the passengers if they are already settled so
that I can start the engine, sir.
Q I am asking him if there was no reason for him....
Q What about the remaining mirror?
Fiscal:
A Rear view mirror, sir.
Before the announcement of hold-up, there was no mention.
Q What is the purpose and where is it located?
Court:
A The rear view is located just above my head just to check the
Every now and then. passengers, sir.
Atty. Osorio: Q So that the center mirror and the rear view mirror has the same
purpose?
(to the witness)
A They are different, sir.
Q When you said every now and then, how often is it, Mr. witness?
Q How do you differentiate of (sic) one from the other?
A I cannot tell how often but I used to look at the mirror once in a
while, sir. A The center mirror is used to check the center aisle while the rear
mirror is for the whole view of the passengers, sir.
Q How many mirror do you have, Mr. witness?
Q If you are going to look at any of your side mirrors, you will
A Four (4), sir. never see any passengers, correct, Mr. witness?
Q Where are these located? A None, sir.

Q If you will look at your center mirror you will only see the aisle
and you will never see any portion of the body of your
passengers?
A Yes, sir.
Q Seated passengers?
A It is only focus (sic) on the middle aisle sir.
Q If you look at your rear mirror, you will only see the top portion
of the head of your passengers, correct?
A Only the portion of their head because they have different hight
(sic), sir.
Q You will never see any head of your passengers if they were
seated from the rear mirror portion, correct, Mr. witness?
A Yes, sir.
Q Before the announcement of hold-up, all of your passengers
were actually sleeping?
A Some of my passengers were sleeping, some were not, sir.
Q But you will agree Mr. witness that when you said every now and
then you are using your mirror? It is only a glance, correct?
A Yes, sir.
Q And by mere glancing, Mr. witness you were not able to identify
any person on the basis of any of your mirror, correct?
A If only a glance but when I look at him I can recognize him, sir.
Q You agree a while ago by every now and then it is by glancing,
as a driver, Mr. witness by your side mirror?
A Not all glancing, there are times when you want to recognize a
person you look at him intently, sir.
Q The purposes of your mirror inside your Bus is mainly of the
safety of your passengers on board, Mr. witness?
A Yes, sir.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 215
Q And as a driver, Mr. witness, you do not used (sic) your mirror to
identify the person particularly when you are crossing (sic) at
a speed of 70 kilometers per hour?
A I do that, sir.
Q How long Mr. witness can you focus your eyes on any of these
mirror before getting back your eyes into the main road?
A Seconds only, sir.
Q When you said seconds, for how long the most Mr. witness that
you can do to fix your eyes on any of your mirrors and the
return back of (sic) your eyes into the main road?
A Two seconds, sir.
Q At that time Mr. witness, that you were travelling at about 70
kilometers you were glancing every now and then on any of
your mirrors at about two seconds, correct?
A Yes, sir.
Q And when you heard the announcement of hold-up your natural
reaction is to look either at the center mirror or rear mirror for
two seconds, correct?
A Yes, sir.
Q And you were instructed Mr. witness to even accelerate your
speed upon the announcement of hold-up?
A No sir, they just told me to continue my driving, sir.
Fiscal:
May I request the vernacular alalay ka lang, steady ka lang.
Atty. Osorio:
(to the witness)
Q Steady at what speed?
A 70 to 80, sir.
Q What is the minimum speed, Mr. witness for Buses along North
Expressway?
A 60 kilometers, sir.

Q Are you sure of that 60 kilometers, minimum? Are you sure of
that?
A Yes, sir.
Q That is what you know within the two (2) years that you are
driving? Along the North Expressway?
A Yes, sir.
Q And while you were at the precise moment, Mr. witness, you
were being instructed to continue driving, you were not
looking to anybody except focus yours eyes in front of the
road?
Fiscal:
May I request the vernacular. Nakikiramdam ako.
Atty. Osorio:
(to the witness)
Q Thats what you are doing?
A During the time they were gathering the money from my
passengers, that is the time when I look at them, sir.
Q For two seconds, correct?
A Yes, sir.
Q Which of the four (4) mirrors that you are looking at within two
seconds, Mr. witness you said you are nakikiramdam?
A The rear view mirror, sir.
Q The Bus that you were driving is not an air con bus?
A Ordinary bus, sir.
Q And at what time your passengers, most of your passengers
were already sleep (sic), Mr. witness?
A Most of my passengers, sir. Some of my passengers were still
sleep (sic), sir.
Q And the lights inside the Bus are off, correct Mr. witness?
A The lights were on, sir.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 216
Q While the passengers were sleep (sic) the light was still on, Mr.
witness, at the time of the trip.?
A Yes, sir.
Q Now, Mr. witness when the hold-up was announced and then
when you look for two seconds in the rear mirror you were
not able to see any one, you were only sensing what is
happening inside your bus?
A I saw something, sir.
Q You saw something in front of your Bus? You can only see inside
when you are going to look at the mirror?
A Yes, sir.
Q That is the only thing that you see every now and then, you said
you were looking at the mirror?
A Yes, sir.
Q How many times, Mr. witness did you look Mr. witness at the
rear mirror during the entire occurance (sic) of the alleged
hold-up?
A There were many times, sir.
Q The most that you can remember, please inform the Honorable
Court? During the occurance (sic) of the alleged hold-up, Mr.
witness?
A I cannot estimate, sir.
Q How long did the alleged hold-up took place?
A More or less 25 minutes, sir.[39]
When Rodolfo gave his sworn statement to the police investigators in
Plaridel, Bulacan after the robbery, he described the felons. When asked by
the police investigators if he could identify the robbers if he see them again,
Rodolfo declared that he would be able to identify them:
8. T: Natatandaan mo ba kung ano ang itsura ng dalawang lalaki
na nanghold-up sa minamaneho mong bus?
S: Halos magkasing taas, 54 o 55 katam-taman ang
pangangatawan, parehong nakapantalon ng maong naka-suot

ng jacket na maong, parehong naka rubber shoes at pareho
ring naka sumbrero.
9. T: Kung sakali bang makikita mo pa ang mga ito ay makikilala
mo pa sila?
S: Makikilala ko po sila.[40]
When asked to identify the robbers during the trial, Rodolfo
spontaneously pointed to and identified Juan and Victor:
QFiscal:
(to the witness)
xxx
Q Those two man (sic) who stated that it was a hold-up inside the
bus and who fired the gun are they inside the Court room (sic)
today?
A Yes, maam.
Q Point to us?
Interpreter:
Witness pointing to a man wearing red T-shirt and when
asked his name answered Victor Acuyan and the man wearing
green T-shirt and when asked his name answered Juan
Gonzales.[41]
For his part, Romulo likewise spontaneously pointed to and identified
Juan and Victor as the culprits when asked by the prosecutor to identify the
robbers from among those in the courtroom:
xxx
Q You said that you were robbed inside the bus, how does (sic) the
robbing took place?
A They announced a hold up maam, afterwards, they confiscated
the money of the passengers including my collections.
Q You said they who announced the hold up, whose (sic) these
they you are referring to?
A Those two (2), maam.
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 217
Interpreter:
Witness pointing to the two accused.
Public Pros.:
May we request that the accused be identified, Your Honor.
Court:
(to both accused)
What are your names?
A Juan Escote, Your Honor. Victor Acuyan, Your Honor.
Public Pros.:
May we know from the accused if his name is Juan Escote
Gonzales because he just said Juan Escote. In the
Information, it is one Juan Gonzales, Jr., so, we can change,
Your Honor.[42]
Moreover, when he was accosted by SPO3 Romeo Meneses on October
25, 1997 in Tarlac, Tarlac, Juan was in possession of the identification
card[43] of the slain police officer. Juan failed to explain to the trial court how
and under what circumstances he came into possession of said identification
card. Juan must necessarily be considered the author of the robbery and the
killing of SPO1 Manio, Jr. In People v. Mantung,[44] we held:
xxx [T]he recovery of part of the loot from Mantung or the time of his arrest
gave rise to a legal presumption of his guilt. As this Court has held, [I]n the
absence of an explanation of how one has come into possession of stolen
effects belonging to a person wounded and treacherously killed, he must
necessarily be considered the author of the aggression and death of the said
person and of the robbery committed on him.
While police investigators did not place Juan and Victor in a police line-
up for proper identification by Rodolfo and Romulo, it cannot thereby be
concluded that absent such line-up, their identification by Romulo and
Rodolfo as the authors of the robbery with homicide was unreliable. There is
no law or police regulation requiring a police line-up for proper identification
in every case. Even if there was no police line-up, there could still be proper
and reliable identification as long as such identification was not suggested or
instigated to the witness by the police.[45] In this case, there is no evidence
that the police officers had supplied or even suggested to Rodolfo and

Romulo the identities of Juan and Victor as the perpetrators of the robbery
and the killing of SPO1 Manio, Jr.
The Felony Committed by Juan and Victor
The Court finds that the trial court committed no error in convicting
Juan and Victor of robbery with homicide. Article 294, paragraph 1 of the
Revised Penal Code, as amended by Republic Act 7659, reads:
Art. 294. - Robbery with violence against or intimidation of
persons. - Penalties.  - Any person guilty of robbery with the use of violence
against or intimidation of any person shall suffer:
1. The penalty of reclusion perpetua to death, when by reason or on
occasion of the robbery, the crime of homicide shall have been committed,
or when the robbery shall have been accompanied by rape or intentional
mutilation or arson.
To warrant the conviction of Juan and Victor for the said charge, the
prosecution was burdened to prove the confluence of the following essential
elements:
xxx (a) the taking of personal property with the use of violence or
intimidation against a person; (b) the property thus taken belongs to
another; (c) the taking is characterized by intent to gain or animus
lucrandi and (d) on the occasion of the robbery or by reason thereof, the
crime of homicide, which is therein used in a generic sense, was committed.
xxx[46]
The intent to rob must precede the taking of human life. [47] In robbery
with homicide, so long as the intention of the felons was to rob, the killing
may occur before, during or after the robbery. In People v. Barut,[48] the
Court held that:
In the controlling Spanish version of article 294, it is provided that there is
robbery with homicide cuando con motivo o con ocasin del robo resultare
homicidio. Basta que entre aquel este exista una relacin meramente
ocasional. No se requiere que el homicidio se cometa como medio de
ejecucin del robo, ni que el culpable tenga intencin de matar, el delito existe
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 218
segn constanta jurisprudencia, aun cuando no concurra animo homicida.
Incluso si la muerte sobreviniere por mero accidente, siempre que el
homicidio se produzca con motivo con ocasin del robo, siendo indiferente
que la muerte sea anterior, coetnea o posterior a ste (2 Cuello Calon,
Derecho Penal, 1975 14th Ed. P. 872).
Even if the victim of robbery is other than the victim of the homicide
committed on the occasion of or by reason of the robbery, nevertheless,
there is only one single and indivisible felony of robbery with homicide. All
the crimes committed on the occasion or by reason of the robbery are
merged and integrated into a single and indivisible felony of robbery with
homicide. This was the ruling of the Supreme Court of Spain on September
9, 1886, et sequitur cited by this Court in People v. Mangulabnan, et al.[49]
We see, therefore, that in order to determine the existence of the crime of
robbery with homicide it is enough that a homicide would result by reason
or on the occasion of the robbery (Decision of the Supreme Court of Spain of
November 26, 1892, and January 7, 1878, quoted in 2 Hidalgos Penal Code,
p. 267 and 259-260, respectively). This High Tribunal speaking of the
accessory character of the circumstances leading to the homicide, has also
held that it is immaterial that the death would supervene by mere accident
(Decision of September 9, 1886; October 22, 1907; April 30, 1910 and July
14, 1917), provided that the homicide be produced by reason or on occasion
of the robbery, inasmuch as it is only the result  obtained, without reference
or distinction as to the circumstances, causes, modes or persons intervening
in the commission of the crime, that has to be taken into consideration
(Decision of January 12, 1889 see Cuello Calons Codigo Penal, p. 501-502).
Case law has it that whenever homicide has been committed by reason
of or on the occasion of the robbery, all those who took part as principals in
the robbery will also be held guilty as principals of robbery with homicide
although they did not take part in the homicide, unless it appears that they
endeavored to prevent the homicide.[50]
In this case, the prosecution proved beyond reasonable doubt that Juan
and Victor conspired and confabulated together in robbing the passengers of
the Five Star Bus of their money and valuables and Romulo of his collections
of the fares of the passengers and in killing SPO1 Manio, Jr. with impunity on
the occasion of the robbery. Hence, both Juan and Victor are guilty as
principals by direct participation of the felony of robbery with homicide under
paragraph 1, Article 294 of the Revised Penal Code, as amended by R.A.
7659, punishable by reclusion perpetua to death.

The Proper Penalty
The trial court imposed the supreme penalty of death on Juan and
Victor for robbery with homicide, defined in Article 294, paragraph 1 of the
Revised Penal Code, punishable with reclusion perpetua. Under Article 63,
paragraph 1 of the Revised Penal Code, the felons should be meted the
supreme penalty of death when the crime is committed with an aggravating
circumstance attendant in the commission of the crime absent any mitigating
circumstance. The trial court did not specify in the decretal portion of its
decision the aggravating circumstances attendant in the commission of the
crime mandating the imposition of the death penalty. However, it is evident
from the findings of facts contained in the body of the decision of the trial
court that it imposed the death penalty on Juan and Victor on its finding that
they shot SPO1 Manio, Jr. treacherously on the occasion of or by reason of
the robbery:
xxx
The two (2) accused are incomparable in their ruthlessness and base regard
for human life. After stripping the passengers of their money and valuables,
including the firearm of the victim, they came to decide to execute the latter
seemingly because he was a police officer. They lost no time pouncing him
at the rear section of the bus, aimed their firearms at him and, in a derisive
and humiliating tone, told him, before pulling the trigger, that they were
rather sorry but they are going to kill him with his own gun; and thereafter,
they simultaneously fired point blank at the hapless policeman who was
practically on his knees begging for his life. Afterwhich, they calmly
positioned themselves at the front boasting for all to hear, that killing a man
is like killing a chicken (Parang pumapatay ng manok). Escote, in particular,
is a class by himself in callousness. xxx.[51]
The Court agrees with the trial court that treachery was attendant in the
commission of the crime. There is treachery when the following essential
elements are present, viz: (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.[52] 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. Treachery may also be appreciated even if the victim was
warned of the danger to his life where he was defenseless and unable to flee
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 219
at the time of the infliction of the coup de grace.[53] In the case at bar, the
victim suffered six wounds, one on the mouth, another on the right ear, one
on the shoulder, another on the right breast, one on the upper right cornea
of the sternum and one above the right iliac crest. Juan and Victor were
armed with handguns. They first disarmed SPO1 Manio, Jr. and then shot
him even as he pleaded for dear life. When the victim was shot, he was
defenseless. He was shot at close range, thus insuring his death. The victim
was on his way to rejoin his family after a hard days work. Instead, he was
mercilessly shot to death, leaving his family in grief for his untimely
demise. The killing is a grim example of the utter inhumanity of man to his
fellowmen.
The issues that now come to fore are (1) whether or not treachery is a
generic aggravating circumstance in robbery with homicide; and if in the
affirmative, (b) whether treachery may be appreciated against Juan and
Victor. On the first issue, we rule in the affirmative. This Court has ruled over
the years[54] that treachery is a generic aggravating circumstance in the
felony of robbery with homicide, a special complex crime ( un delito especial
complejo) and at the same time a single and indivisible offense ( uno solo
indivisible).[55] However, this Court in two cases has held that robbery with
homicide is a crime against property and hence treachery which is
appreciated only to crimes against persons should not be appreciated as a
generic aggravating circumstance.[56] It held in another case that treachery is
not appreciated in robbery with rape precisely because robbery with rape is a
crime against property.[57] These rulings of the Court find support in case law
that in robbery with homicide or robbery with rape, homicide or rape are
merely incidents of the robbery, with robbery being the main purpose and
object of the criminal.[58] Indeed, in People vs. Cando,[59] two distinguished
members of this Court advocated a review of the doctrine that treachery is a
generic aggravating circumstance in robbery with homicide. They opined that
treachery is applicable only to crimes against persons. After all, in People vs.
Bariquit,[60] this Court in a per curiam decision promulgated in year 2000
declared that treachery is applicable only to crimes against
persons. However, this Court held in People vs. Cando  that treachery is a
generic aggravating circumstance in robbery with homicide, citing its prior
rulings that in robbery with homicide, treachery is a generic aggravating
circumstance when the victim of homicide is killed with treachery. This Court
opted not to apply its ruling earlier that year in People vs. Bariquit.
Legal Luminaries in criminal law and eminent commentators of the
Revised Penal Code are not in full accord either. Chief Justice Ramon C.
Aquino (Retired) says that treachery is appreciated only in crimes against
persons as defined in Title 10, Book Two of the Code. [61] Chief Justice Luis B.

Reyes (Retired) also is of the opinion that treachery is applicable only to
crimes against persons.[62] However, Justice Florenz D. Regalado (Retired) is
of a different view.[63] He says that treachery cannot be considered in
robbery but can be appreciated insofar as the killing is concerned, citing the
decisions of this Court in People vs. Balagtas [64] for the purpose of
determining the penalty to be meted on the felon when the victim of
homicide is killed with treachery.
It must be recalled that by Royal Order of December 17, 1886 the 1850
Penal Code in force in Spain, as amended by the Codigo Penal Reformado de
1870  was applied in the Philippines. The Penal Code of 1887 in the
Philippines was amended by Act 3815, now known as the Revised Penal
Code, which was enacted and published in Spanish. In construing the Old
Penal Code and the Revised Penal Code, this Court had accorded respect and
persuasive, if not conclusive effect to the decisions of the Supreme Court of
Spain interpreting and construing the 1850 Penal Code of Spain, as amended
by Codigo Penal Reformado de 1870.[65]
Article 14, paragraph 16 of the Revised Penal Code reads:
ART. 14. Aggravating circumstances. The following are aggravating
circumstances:
xxx
16. That the act be committed with treachery (alevosia). There is treachery
when the offender commits any of the crimes against the person, employing
means, methods, or forms in the execution thereof which tend directly and
specially to insure its execution, without risk to himself arising from the
defense which the offended party might make.
The law was taken from Chapter IV, Article 10, paragraph 2 of the 1860
Penal Code and the Codigo Penal Reformado de 1870 of Spain which reads:
Art. 10 ...2. Ejecutar el hecho con alevosia. Hay alevosia cuando el culpable
comete cualquiera de los delitos contra las personas empleando medios,
modos o for mas en la ejecucion que tiendan directa y especialmente a
asegurarla sin riesgo para su persona, que proceda de la defensa que
pudiera hacer el ofendido. xxx
Article 14, paragraph 16 of the Revised Penal Code is a reproduction of
the 1850 Penal Code of Spain and the   Codigo Penal Reformado de 1870  with
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 220
a slight difference. In the latter law, the words las personas (the persons)
are used, whereas in Article 14, paragraph 6, of the Revised Penal Code, the
words the person are used.
Going by the letter of the law, treachery is applicable only to crimes
against persons as enumerated in Title Eight, Chapters One and Two, Book
II of the Revised Penal Code. However, the Supreme Court of Spain has
consistently applied treachery to robbery with homicide, classified as a crime
against property. Citing decisions of the Supreme Court of Spain, Cuello
Calon, a noted commentator of the Spanish Penal Code says that despite the
strict and express reference of the penal code to treachery being applicable
to persons, treachery also applies to other crimes such as robbery with
homicide:[66]
Aun cuando el Codigo solo se refiere a los delitos contra las personas, cabe
estimarla en los que no perteneciendo a este titulo se determinan por
muerte o lesiones, como, en el robo con homicidio, y en el homicidio del Jefe
del Estado que es un delito contra la seguridad interior del Estado, y no
obstante la referencia estricta del texto legal a los delitos contra las personas
no es la alevosia aplicable a la mayoria de ellos, no lo es en el homicidio,
pues como su concurrencia lo cualifica lo transforma en delito distinto, en
asesinato, ni en el homicidio consentido (art. 409), ni en la ria tumultuaria
(art. 408) ni en el infanticidio (art. 410). xxx. [67]
Viada also says that treachery is appreciated in crimes against persons
(delitos contra personas)  and also in robbery with homicide ( robo con
homicidio).[68]
Contra las personas. - Luego la circunstancia de alevosia solo puede
apreciarse en los delitos provistos desde el art. 417 al 447, y en algun otro,
como el de robo con homicidio, atentario, a la vez que contra la propriedad,
contra la persona.
Thus, treachery is a generic aggravating circumstance to robbery with
homicide although said crime is classified as a crime against property and a
single and indivisible crime.Treachery is not a qualifying circumstance
because as ruled by the Supreme Court of Spain in its decision dated
September 11, 1878, the word homicide is used in its broadest and most
generic sense.[69]
Article 62, paragraph 1 of the Revised Penal Code provides that in
diminishing or increasing the penalty for a crime, aggravating circumstances

shall be taken into account. However, aggravating circumstances which in
themselves constitute a crime specially punishable by law or which are
included by the law in defining a crime and prescribing a penalty therefor
shall not be taken into account for the purpose of increasing the penalty.
[70]
 Under paragraph 2 of the law, the same rule shall apply with respect to
any aggravating circumstances inherent in the crime to such a degree that it
must of necessity accompany the commission thereof.
1. Aggravating circumstances which in themselves constitute a crime
specially punishable by law or which are included by the law in defining a
crime and prescribing the penalty therefor shall not be taken into account for
the purpose of increasing the penalty.
xxx
2. The same rule shall apply with respect to any aggravating circumstances
inherent in the crime to such a degree that it must be of necessity
accompany the commission thereof.
Treachery is not an element of robbery with homicide. Neither does it
constitute a crime specially punishable by law nor is it included by the law in
defining the crime of robbery with homicide and prescribing the penalty
therefor. Treachery is likewise not inherent in the crime of robbery with
homicide. Hence, treachery should be considered as a generic aggravating
circumstance in robbery with homicide for the imposition of the proper
penalty for the crime.
In its Sentencia dated March 14, 1877, the Supreme Court of Spain
declared that treachery is a generic aggravating circumstance not only in
crimes against persons but also in robbery with homicide. The high court of
Spain applied Article 79 of the Spanish Penal Code (Article 62 of the Revised
Penal Code) and ruled that since treachery is not a constitutive element of
the crime of robbery with homicide nor is it inherent in said crime, without
which it cannot be committed, treachery is an aggravating circumstance to
said crime. The high court of Spain was not impervious of the fact that
robbery with homicide is classified as a crime against property. Indeed, it
specifically declared that the classification of robbery with homicide as a
crime against property is irrelevant and inconsequential in the application of
treachery. It further declared that it would be futile to argue that in crimes
against property such as robbery with homicide, treachery would have no
application. This is so, the high tribunal ruled, because when robbery is
coupled with crimes committed against persons, the crime is not only an
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 221
assault  (ataca) on the property of the victims but also of the victims
themselves (ofende):
xxx que la circunstancia agravante de alevosia ni es constitutiva del delito
complejo de robo y homicidio, ni de tal modo inherente que sin ella no pueda
cometerse, sin que quepa arguir que en los delitos contra la propiedad no
debe aquella tener aplicacion, porque cuando estos son complejos de los
que se cometen contra las personas, no solo se ataca a la propiedad, sino
que se ofende a estas. xxx[71]
In fine, in the application of treachery as a generic aggravating
circumstance to robbery with homicide, the law looks at the
constituent crime of homicide which is a crime against persons and
not at the constituent crime of robbery which is a crime against
property.  Treachery is applied to the constituent crime of homicide
and not to the constituent crime of  robbery of the special complex
crime of robbery with homicide.
The crime of robbery with homicide does not lose its
classification as a crime against property or as a special complex
and single and indivisible crime simply because treachery is
appreciated as a generic aggravating circumstance.  Treachery
merely increases the penalty for the crime conformably with Article
63 of the Revised Penal Code absent any generic mitigating
circumstance.
In its Sentencia, dated July 9, 1877, the high tribunal of Spain also ruled
that when the victim of robbery is killed with treachery, the said
circumstance should be appreciated as a generic aggravating circumstance in
robbery with homicide:
xxx que si aparece probado que el procesado y su co-reo convinieron en
matar a un conocido suyo, compaero de viaje, para lo cual desviaron
cautelosamente los carros que guiaban, en uno de los cuales iba el
interfecto, dirigiendolos por otro camino que conducia a un aljibon, y al
llegar a este, valiendose de engao para hacer bajar a dicho interfecto, se
lanzaron de improviso sobre el, tirandolo en tierra, robandole el dinero, la
manta y los talegos que llevaba, y atandole al pie una piedra de mucho peso,
le arrojaron con ella a dicho aljibon, dados estos hechos, no cabe duda que
constituyen el delito complejo del art. 516, num. I, con la circunstancia
agravante de alevosia, puesto que los medios, forma y modos empleados en

la ejecucion del crimen tendieron directa y especialmente a asegurarla sin
riesgo para sus autores, procedente de la defensa del ofendido. [72]
In sum then, treachery is a generic aggravating circumstance in robbery
with homicide when the victim of homicide is killed by treachery.
On the second issue, we also rule in the affirmative. Article 62,
paragraph 4 of the Revised Penal Code which was taken from Article 80 of
the Codigo Penal Reformado de 1870 ,[73]provides that circumstances which
consist in the material execution of the act, or in the means employed to
accomplish it, shall serve to aggravate or mitigate the liability of those
persons only who had knowledge of them at the time of the execution of the
act or their cooperation therein. The circumstances attending the commission
of a crime either relate to the persons participating in the crime or into its
manner of execution or to the means employed. The latter has a direct
bearing upon the criminal liability of all the accused who have knowledge
thereof at the time of the commission of the crime or of their cooperation
thereon.[74] Accordingly, the Spanish Supreme Court held in
its Sentencia dated December 17, 1875 that where two or more persons
perpetrate the crime of robbery with homicide, the generic aggravating
circumstance of treachery shall be appreciated against all of the felons who
had knowledge of the manner of the killing of victims of homicide, with the
ratiocination that:
xxx si por la Ley basta haberse ejecutado un homicidio simple con motivo
ocasin del robo para la imposicion de la pena del art. 516, num. I, no puede
sere ni aun discutible que, concurriendo la agravante de alevosia, se
aumente la criminalidad de los delincuentes; siendo aplicable  a todos los
autores del hecho indivisible, porque no es circunstancia que afecte a la
personalidad del delincuente, de las que habla el art. 80 del Codigo penal en
su primera parte, sino que consiste en la ejecusion material del hecho y en
los medios empleados para llevarle a cabo, cuando de ellos tuvieron
conocimiento todos los participantes en el mismo por el concierto previo y
con las condiciones establecidad en la segunda parte del citado articulo. [75]
Be that as it may, treachery cannot be appreciated against Juan and
Victor in the case at bar because the same was not alleged in the
Information as mandated by Section 8, Rule 110 of the Revised Rules on
Criminal Procedures which reads:
Sec. 8. Designation of the offense. - The complaint or information shall state
the designation of the offense given by the statute, aver the acts or
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 222
omissions constituting the offense and specify its qualifying and aggravating
circumstances. If there is no designation of the offense, reference shall be
made to the section or subsection of the statute punishing it.
Although at the time the crime was committed, generic aggravating
circumstance need not be alleged in the Information, however, the general
rule had been applied retroactively because if it is more favorable to the
accused.[76] Even if treachery is proven but it is not alleged in the
information, treachery cannot aggravate the penalty for the crime.
There being no modifying circumstances in the commission of the felony
of robbery with homicide, Juan and Victor should each be meted the penalty
of reclusion perpetua conformably with Article 63 of the Revised Penal Code.
Civil Liability of Juan and Victor
The trial court awarded the total amount of P300,000.00 to the heirs of
SPO1 Manio, Jr. The court did not specify whether the said amounts included
civil indemnity for the death of the victim, moral damages and the lost
earnings of the victim as a police officer of the PNP. The Court shall thus
modify the awards granted by the trial court.
Since the penalty imposed on Juan and Victor is reclusion perpetua, the
heirs of the victim are entitled to civil indemnity in the amount
of P50,000.00. The heirs are also entitled to moral damages in the amount
of P50,000.00, Rosemarie Manio having testified on the factual basis thereof.
[77]
 Considering that treachery aggravated the crime, the heirs are also
entitled to exemplary damages in the amount of P25,000.00. This Court held
in People vs. Catubig[78]  that the retroactive application of Section 8, Rule
110 of the Revised Rules of Criminal Procedure should not impair the right of
the heirs to exemplary damages which had already accrued when the crime
was committed prior to the effectivity of the said rule. Juan and Victor are
also jointly and severally liable to the said heirs in the total amount
of P30,000.00 as actual damages, the prosecution having adduced evidence
receipts for said amounts. The heirs are not entitled to expenses allegedly
incurred by them during the wake as such expenses are not supported by
receipts.[79] However, in lieu thereof, the heirs are entitled to temperate
damages in the amount of P20,000.00.[80] The service firearm of the victim
was turned over to the Evidence Custodian of the Caloocan City Police
Station per order of the trial court on October 22, 1997. [81] The prosecution

failed to adduce documentary evidence to prove the claim of Five Star Bus,
Inc. in the amount of P6,000.00. Hence, the award should be
deleted. However, in lieu of actual damages, the bus company is entitled to
temperate damages in the amount of P3,000.00.[82]
The heirs are likewise entitled to damages for the lost earnings of the
victim. The evidence on record shows that SPO1 Manio, Jr. was born on
August 25, 1958. He was killed on September 28, 1996 at the age of 38. He
had a gross monthly salary as a member of the Philippine National Police
of P8,065.00 or a gross annual salary of P96,780.00. Hence, the heirs are
entitled to the amount of P1,354,920.00 by way of lost earnings of the victim
computed, thus:
Age of the victim = 38 years old
Life expectancy = 2/3 x (80 age of the victim at the time of death)
= 2/3 x (80-38)
= 2/3 x 42
= 28 years
Gross Annual Income = gross monthly income x 12 months
= P8,065.00 x 12
= P96,780.00
Living Expenses = 50% of Gross Annual Income
= P96,780.00 x 0.5
= P48,390.00
Lost Earning Capacity = Life expectancy x [Gross Annual Income-
Living
expenses]
C r i m i n a l L a w I ( C O M P I L A T I O N ) P a g e | 223
= 28 x [P96,780.00 P48,390.00]
= 28 x P48,390.00
= P1,354,920.00
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional
Trial Court of Bulacan is hereby AFFIRMED with MODIFICATIONS. Accused-
appellants Juan Gonzales Escote, Jr. and Victor Acuyan are hereby found
guilty beyond reasonable doubt of the felony of robbery with homicide
defined in Article 294, paragraph 1 of the Revised Penal Code and, there
being no modifying circumstances in the commission of the felony, hereby
metes on each of them the penalty of RECLUSION PERPETUA. Said accused-
appellants are hereby ordered to pay jointly and severally the heirs of the
victim SPO1 Jose C. Manio, Jr. the amounts of P50,000.00 as civil
indemnity, P50,000.00 as moral damages, P1,349,920.00 for lost
earnings, P30,000.00 as actual damages and P25,000.00 as exemplary
damages. The award of P6,000.00 to the Five Star Bus, Inc. is
deleted. However, the said corporation is awarded the amount of P3,000.00
as temperate damages.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Quisumbing,
Carpio, Austria-Martinez, Corona, Carpio-Morales,  and Azcuna, JJ.,  concur.
Vitug  J.,  please  see separate opinion.
Ynares-Santiago,  and  Sandoval-Gutierrez, JJ.,  join J. Vitugs separate
opinion.