NEED TO DIGEST

MODULE 3

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 107874 August 4, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
GEORGE DECENA y ROCABERTE, accused-appellant.

The Solicitor General for plaintiff-appellee.

Aquilino P. Bolinas for accused-appellant.

REGALADO, J.:

It is said that a fool shows his annoyance at once, but a prudent man overlooks an insult.   Had
1

herein accused-appellant George Decena reflected upon and hearkened to this biblical precept, he
would not have found himself charged with murder for allegedly stabbing to death one Jaime
Ballesteros in San Fabian, Pangasinan on — of all dates — December 25, 1990.  2

Appellant thereafter stood trial on a plea of not guilty. On September 20, 1991, judgment was
rendered by the trial court convicting him of murder, imposing on him the penalty of reclusion
perpetua, and ordering him to indemnify the heirs of the deceased in the amount of P50,000.00, plus
the additional amounts of P4,500.00 and P2,300.00 representing the funeral expenses for the victim,
with costs. 
3

A motion for reconsideration filed by appellant was denied on August 26, 1992 for lack of
merit,   hence this appellate review wherein appellant contends, in his assigned errors, that the lower
4

court blundered in disregarding his claim of self-defense, and in not appreciating the mitigating
circumstance of voluntary surrender in his favor, granting arguendo that he is guilty. 5

The case for the prosecution, anchored mainly on the testimony of Luzviminda Ballesteros, a 14-
year old daughter of the victim, is to the effect that on Christmas Day of 1990, at around 4:00 P.M.,
said Luzviminda was playing with her siblings at home. She recalled being asked by her mother,
Teresita Ballesteros, to fetch her father, Jaime Ballesteros, who was then watching a game in the
basketball court. On her way to the hardcourt, Luzviminda met her father walking home in an
intoxicated state. Suddenly, she saw appellant rushing towards her father with a long bladed
weapon, prompting Luzviminda to warn her father to run for safety by shouting in the vernacular
"Batik kila, Tatay!" Instead, Jaime simply raised his hand, thus allowing appellant to stab him on the
right chest just below the nipple. Appellant then fled from the crime scene, while the victim also
managed to run but stumbled and fell to the ground.  6

Finding that her father was too heavy for her to carry, Luzviminda called for her mother at their
house, which was only fifteen meters away from the scene of the crime, saying: "Mother, come! My
father has been stabbed by George Decena." Her mother immediately called for a tricycle and
rushed Jaime to the Provincial Hospital where, however, the victim was declared dead on arrival.  7

A different account of the incident was presented by the defense. It was claimed that at about 4:00
P.M. of that day, appellant was watching a basketball game. The victim, Jaime Ballesteros, went
around the basketball court, walking in a wobbly manner due to drunkenness. Jaime stopped near
the place where appellant was sitting and, for no apparent reason, held the latter by the neck with
one arm and, at the same time, poking a fork against it with the other arm. Barangay Tanod Romeo
Decena who was also watching the basketball game, intervened. He took the fork from Jaime and
advised appellant to go home. The latter left and was followed later by Jaime.

Fernando Biala, an uncle of appellant, additionally testified that while he was walking on
the barangay road of Longos-Patalan, he chanced upon Jaime attacking appellant with a balisong.
Fortunately, he claims, appellant was able to parry the stabbing blow and a struggle ensued
between them. Appellant overpowered Jaime and succeeded in twisting the wrist of the victim and
thrusting the knife into the latter's body. 8

In criminal cases, the burden of proof is, of course, on the prosecution which must rely on the
strength of its evidence and not on the weakness of the defense. Herein appellant, however, invokes
self-defense, thereby shifting the burden of evidence to him and the onus of which he must
satisfactorily discharge, otherwise conviction would follow from his admission that he killed the
victim.   Furthermore, appellant must this time rely on the strength of his own evidence and not on
9

the weakness of that of the prosecution, for even if that was weak, it cannot be disbelieved after
appellant himself admitted the killing. 
10

The basic requirement for self-defense, as a justifying circumstance, is that there was an unlawful
aggression against the person defending himself. It must be positively shown that there was a
previous unlawful and unprovoked attack that placed the life of the accused in danger and forced
him to inflict more or less severe wounds upon his assailant, employing therefor reasonable means
to resist said attack.   The primal issue in this case, therefore, is whether or not appellant acted in
11

complete self-defense in killing Jaime Ballesteros, as claimed, thus absolving him from criminal
liability.

Long has it been accepted that for the right of defense to exist, it is necessary that one be assaulted
or that he be attacked, or at least that he be threatened with an attack in an immediate manner, as,
for example, brandishing a knife with which to stab him or pointing a gun to be discharged against
him.   So indispensable is unlawful aggression in self-defense that, without it, there is no occasion to
12

speak of the other two requisites for such a defense because both circumstances presuppose an
unlawful aggression.

The theory of the defense is that the unlawful aggression started in the basketball court, when the
victim tried to poke a fork on the neck of appellant, and continued thereafter. Even on the elementary
rule that when the aggressor leaves, the unlawful aggression ceases, it follows that when appellant
and Jaime heeded the advice of the barangay tanod for them to go home, the unlawful aggression
had ended. Consequently, since unlawful aggression no longer existed, appellant had no right
whatsoever to kill or even wound the former aggressor. The supposed continuation of the unlawful
aggression which could have justified self-defense would have been the circumstance that Jaime
persisted in his design to attack appellant while the latter was already in front of his house. This fact,
however, the defense ruefully failed to establish.

It is an old but a respected and consistent rule that courts must determine by a balance of
probabilities who of the participants in a fight had, in the natural order of things, the reason to
commence the aggression.   When appellant claimed that Jaime suddenly and without any
13

provocation tried to strangle him and poked a fork against his neck, in front of so many people in the
basketball court,   then he must necessarily have been deeply offended, if not insulted, and this fact
14

undoubtedly fired him with a desire to get even with the deceased.

The case at bar calls to mind the scenario and logical view that when a person had inflicted slight
physical injuries on another, without any intention to inflict other injuries, and the latter attacked the
former, the one making the attack was an unlawful aggressor. The attack made was evidently a
retaliation. And, we find this an opportune occasion to emphasize that retaliation is different from an
act of self-defense. In retaliation, the aggression that was begun by the injured party already ceased
to exist when the accused attacked him. In
self-defense, the aggression was still existing when the aggressor was injured or disabled by the
person making a defense.   We find these observations apropos to the situation presented by the
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instant case.

It will be recalled that, as claimed by appellant, the unlawful aggression complained of also took
place in front of his house, where Jaime allegedly tried to attack him with a balisong, and not only in
the basketball court. To support his theory of continuing aggression, appellant alleged that whenever
the victim was drunk, he would look for trouble. Again, the defense utterly failed to prove this
hypothesis. On the contrary, the wife of the victim testified that the latter has no such record in
their barangay   and, significantly, her said testimony was never refuted nor objected to by
16

appellant.

Witnesses for and against the appellant testified that throughout the incident Jaime was inebriated
and that he was staggering or wobbling as he walked.   If he had such difficulty even in performing
17

the normal bodily function of locomotion, it could not be expected that he would muster enough
courage to persist in attacking and attempting to kill appellant, as posited by the defense,
considering that the latter was decidedly stronger than him.

Essentially involved, in view of the conflicting submissions of the parties, is the matter of the
credibility of their respective witnesses. Accordingly, we are constrained to once again advert to the
jurisprudential rule that the evaluation of the credibility of witnesses is within the province of the trial
court which is better circumstanced because of its direct role in the reception of the testimonial
evidence.   After examining and evaluating the conflicting versions of the prosecution and the
18

defense, we agree with the court a quo that the prosecution's account is deserving of more
credence. On the other hand, we note grave inconsistencies in the declarations of the defense
witnesses.

First. Appellant, in his direct examination, testified that a fork was poked at his neck but, on cross-
examination, he vacillated and testified that it was a knife instead.  Surely, appellant must know the
19

difference between a fork and a knife.

Second. Appellant insisted that after the stabbing incident in the late afternoon of December 25,
1990 and until his surrender early next morning,
he never went out of his house. This is contradicted by the unchallenged Entry No. 173 of the local
police blotter, especially its follow-up entry which the court below quoted in its decision:
 Relative entry no. 173, elements of this station proceeded to Barangay Longos this
town to locate the suspect and returned station with the information that said suspect
fled after the incident. One deformed
fork submitted by the father of the suspect Francisco Decena to Sgt. R.B. Diagan
allegedly owned by the victim. Under follow-up. Sgd. Ricardo Abrio, Pfc/PNP.  20

Third. Appellant's smug excuse for not immediately divulging to

Sgt. Romeo Diagan that he was not at fault for the death of Jaime was that he was terribly afraid to
do so. Strangely, however, this was not his demeanor and attitude when he boldly professed and
contended that it was Jaime who first poked a fork against his neck while he was watching a
basketball game. Parenthetically, the other half of the story was deliberately not narrated.   Be that
21

as it may, the Court has heretofore noted that a righteous individual will not cower but would readily
admit the killing at the earliest opportunity if he were legally and morally justified in doing so. A
belated plea or denial suggests that it is false and only an afterthought made as a last ditch effort to
avoid the consequences of the crime.  22

Fourth. The supposed eyewitness of the defense who is appellant's uncle, Fernando Biala,
impresses us as either an imaginative or a coached witness. He avowed that he saw the stabbing
incident, but shock and surprise allegedly prevented him from going near Jaime or appellant, when
he saw Jaime about to stab appellant. However, on cross-examination, he said that he merely
chanced on them at the time when Jaime was already actually stabbing appellant, for the reason
that he did not see where appellant or Jaime came from before the incident. When asked how long
the fight transpired, he vaguely answered that he could not tell because when he went up the road,
the two were already fighting. However, he again vacillated by saying that when Jaime was about to
deliver the stabbing blow, appellant caught the hand of Jaime "squeezed and pushed it forward and
Jaime Ballesteros hit himself."   This is a mercurial account since, to repeat, this witness
23

categorically admitted that even as he was still going up the road, the supposed combatants were
already fighting and that fight actually lasted only a few seconds.

Appellant declared that he is related to the victim's wife, that they are neighbors, and that there was
no grudge between him and the victim, nor with any member of the family of the latter.   This was
24

apparently to bolster his theory that he had no motive to assault the victim. His assertions, however,
work both ways for it also established the fact that Luzviminda would likewise not just
indiscriminately and improvidently point her finger at anybody but to the culprit himself, in order to
obtain justice for the death of her father.

That the principal witness is the victim's daughter even lends more credence to her testimony as her
natural interest in securing the conviction of the guilty would deter her from implicating persons other
than the culprits, for otherwise the latter would thereby gain immunity.   This observation, however,
25

could not be said for the defense witnesses who are all relatives of appellant. As such, they may be
expected to cover up for the crime. While relationship between the accused and his witnesses is not
necessarily detrimental to the former's line of defense, this relationship, taken together with the want
of logic (of) in the declarations of said witnesses, yields the conclusion that their testimonies lack
credibility. 
26

In contrast, and further reinforcing the case for the People, is the fact that when Luzviminda shouted,
"Mother, come! My father has been stabbed by George Decena," that outcry and the identification of
the culprit were unrehearsed and spontaneously made at the spur of the moment. Having been
given shortly after a startling occurrence took place before the eyes of Luzviminda, who had thereby
no opportunity to concoct or contrive a story, that statement has all the earmarks of the truth of what
she said. Under the environmental circumstances hereinbefore related, it easily passes the tests not
only of admissibility in evidence but also of weight in its veracity.
We, however, reject the trial court's holding that the killing of the victim was attended by treachery.
Any circumstance which would qualify a killing to murder must be proven as indubitably as the crime
itself.   Here, the qualifying circumstance of treachery cannot be appreciated, for none of the
27

prosecution's arguments can uphold its allegation that, in the language of the law, appellant
committed the crime by employing means, methods or forms in the execution thereof which tended
directly and especially to insure its execution, without risk to himself arising from the defense which
the offended party might make. It is true that the attack was sudden, but that fact per se does not
bespeak the circumstance of alevosia.   It is further required that the means, methods or forms were
28

deliberated upon or consciously adopted by the offender.   The crime committed, therefore, was
29

simple homicide.

The reasons advanced by the lower court for appreciating the aggravating circumstance of disregard
of age are not persuasive. There was no showing that appellant deliberately intended to insult the
age of Jaime. We hold that for this circumstance to constitute an aggravation of criminal liability, it is
necessary to prove the specific fact or circumstance, other than that the victim is an old man,
showing insult or disregard of age in order that it may be considered as an aggravating
circumstance.   In the case at bar, that consideration does not obtain, aside from the fact that while
30

the victim was forty-three years of age, he was not necessarily old, nor was there a radical disparity
between his age and that of appellant who was twenty-five years old.

The rule is that the mitigating circumstance of voluntary surrender may properly be appreciated if the
following requisites concur: (a) the offender had not actually been arrested; (b) the offender
surrendered himself to a person in authority or to an agent of a person in authority; and (c) the
surrender was voluntary. We believe that the mitigating circumstance of voluntary surrender may be
awarded to appellant. The records disclose that appellant was, evidently with his concurrence,
accompanied and surrendered by his father to a person in authority, Sgt. Romeo Diagan, early in the
morning after the incident and before he could actually be arrested. That mitigating circumstance
can, therefore, be properly considered in his favor to impose the penalty in its minimum period.

WHEREFORE, the appealed judgment of the court a quo is hereby MODIFIED by finding accused-
appellant George Decena y Rocaberte guilty of the crime of homicide, and imposing upon him an
indeterminate sentence of eight (8) years of prision mayor, as minimum, to fourteen (14) years and
eight (8) months of reclusion temporal, as maximum. In all other respects, the said judgment is
hereby AFFIRMED.

SO ORDERED.

Narvasa, C.J., Padilla, Puno and Mendoza, JJ., concur.

EN BANC

G.R. No. 135981             January 15, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
MARIVIC GENOSA, appellant.
 DECISION

PANGANIBAN, J.:

Admitting she killed her husband, appellant anchors her prayer for acquittal on a novel theory -- the
"battered woman syndrome" (BWS), which allegedly constitutes self-defense. Under the proven
facts, however, she is not entitled to complete exoneration because there was no unlawful
aggression -- no immediate and unexpected attack on her by her batterer-husband at the time she
shot him.

Absent unlawful aggression, there can be no self-defense, complete or incomplete.

But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a form of
cumulative provocation that broke down her psychological resistance and self-control. This
"psychological paralysis" she suffered diminished her will power, thereby entitling her to the
mitigating factor under paragraphs 9 and 10 of Article 13 of the Revised Penal Code.

In addition, appellant should also be credited with the extenuating circumstance of having acted
upon an impulse so powerful as to have naturally produced passion and obfuscation. The acute
battering she suffered that fatal night in the hands of her batterer-spouse, in spite of the fact that she
was eight months pregnant with their child, overwhelmed her and put her in the aforesaid emotional
and mental state, which overcame her reason and impelled her to vindicate her life and her unborn
child's.

Considering the presence of these two mitigating circumstances arising from BWS, as well as the
benefits of the Indeterminate Sentence Law, she may now apply for and be released from custody
on parole, because she has already served the minimum period of her penalty while under detention
during the pendency of this case.

The Case

For automatic review before this Court is the September 25, 1998 Decision of the Regional Trial
1 

Court (RTC) of Ormoc City (Branch 35) in Criminal Case No. 5016-0, finding Marivic Genosa guilty
beyond reasonable doubt of parricide. The decretal portion of the Decision reads:

"WHEREFORE, after all the foregoing being duly considered, the Court finds the accused,
Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of Parricide as
provided under Article 246 of the Revised Penal Code as restored by Sec. 5, RA No. 7659,
and after finding treachery as a generic aggravating circumstance and none of mitigating
circumstance, hereby sentences the accused with the penalty of DEATH.

"The Court likewise penalizes the accused to pay the heirs of the deceased the sum of fifty
thousand pesos (P50,000.00), Philippine currency as indemnity and another sum of fifty
thousand pesos (P50,000.00), Philippine currency as moral damages." 2

The Information charged appellant with parricide as follows:

3 
 "That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of
Isabel, Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, with intent to kill, with treachery and evident premeditation, did then
and there wilfully, unlawfully and feloniously attack, assault, hit and wound one BEN
GENOSA, her legitimate husband, with the use of a hard deadly weapon, which the accused
had provided herself for the purpose, [causing] the following wounds, to wit:

'Cadaveric spasm.

'Body on the 2nd stage of decomposition.

'Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes protruding from
its sockets and tongue slightly protrudes out of the mouth.

'Fracture, open, depressed, circular located at the occipital bone of the head,
resulting [in] laceration of the brain, spontaneous rupture of the blood vessels on the
posterior surface of the brain, laceration of the dura and meningeal vessels
producing severe intracranial hemorrhage.

'Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of the
epidermis.

'Abdomen distended w/ gas. Trunk bloated.'

which caused his death." 4

With the assistance of her counsel, appellant pleaded not guilty during her arraignment on March 3,
5 

1997. In due course, she was tried for and convicted of parricide.
6 

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) summarizes the prosecution's version of the facts in this
wise:

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

"On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving their
salary. They each had two (2) bottles of beer before heading home. Arturo would pass Ben's
house before reaching his. When they arrived at the house of Ben, he found out that
appellant had gone to Isabel, Leyte to look for him. Ben went inside his house, while Arturo
went to a store across it, waiting until 9:00 in the evening for the masiao runner to place a
bet. Arturo did not see appellant arrive but on his way home passing the side of the
Genosas' rented house, he heard her say 'I won't hesitate to kill you' to which Ben replied
'Why kill me when I am innocent?' That was the last time Arturo saw Ben alive. Arturo also
noticed that since then, the Genosas' rented house appeared uninhabited and was always
closed.

"On November 16, 1995, appellant asked Erlinda Paderog, her close friend and neighbor
living about fifty (50) meters from her house, to look after her pig because she was going to
Cebu for a pregnancy check-up. Appellant likewise asked Erlinda to sell her motorcycle to
their neighbor Ronnie Dayandayan who unfortunately had no money to buy it.

"That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus going to
Ormoc when he saw appellant going out of their house with her two kids in tow, each one
carrying a bag, locking the gate and taking her children to the waiting area where he was.
Joseph lived about fifty (50) meters behind the Genosas' rented house. Joseph, appellant
and her children rode the same bus to Ormoc. They had no conversation as Joseph noticed
that appellant did not want to talk to him.

"On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor
emanating from his house being rented by Ben and appellant. Steban went there to find out
the cause of the stench but the house was locked from the inside. Since he did not have a
duplicate key with him, Steban destroyed the gate padlock with a borrowed steel saw. He
was able to get inside through the kitchen door but only after destroying a window to reach a
hook that locked it. Alone, Steban went inside the unlocked bedroom where the offensive
smell was coming from. There, he saw the lifeless body of Ben lying on his side on the bed
covered with a blanket. He was only in his briefs with injuries at the back of his head. Seeing
this, Steban went out of the house and sent word to the mother of Ben about his son's
misfortune. Later that day, Iluminada Genosa, the mother of Ben, identified the dead body as
that of [her] son.

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

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

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

"Then, Ben purportedly nagged appellant for following him, even challenging her to a fight.
She allegedly ignored him and instead attended to their children who were doing their
homework. Apparently disappointed with her reaction, Ben switched off the light and, with the
use of a chopping knife, cut the television antenna or wire to keep her from watching
television. According to appellant, Ben was about to attack her so she ran to the bedroom,
but he got hold of her hands and whirled her around. She fell on the side of the bed and
screamed for help. Ben left. At this point, appellant packed his clothes because she wanted
him to leave. Seeing his packed clothes upon his return home, Ben allegedly flew into a
rage, dragged appellant outside of the bedroom towards a drawer holding her by the neck,
and told her 'You might as well be killed so nobody would nag me.' Appellant testified that
she was aware that there was a gun inside the drawer but since Ben did not have the key to
it, he got a three-inch long blade cutter from his wallet. She however, 'smashed' the arm of
Ben with a pipe, causing him to drop the blade and his wallet. Appellant then 'smashed' Ben
at his nape with the pipe as he was about to pick up the blade and his wallet. She thereafter
ran inside the bedroom.

"Appellant, however, insisted that she ended the life of her husband by shooting him. She
supposedly 'distorted' the drawer where the gun was and shot Ben. He did not die on the
spot, though, but in the bedroom." (Citations omitted)
7 

Version of the Defense

Appellant relates her version of the facts in this manner:

"1. Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to her
marriage, Marivic had graduated from San Carlos, Cebu City, obtaining a degree of Bachelor
of Science in Business Administration, and was working, at the time of her husband's death,
as a Secretary to the Port Managers in Ormoc City. The couple had three (3) children: John
Marben, Earl Pierre and Marie Bianca.

"2. Marivic and Ben had known each other since elementary school; they were neighbors in
Bilwang; they were classmates; and they were third degree cousins. Both sets of parents
were against their relationship, but Ben was persistent and tried to stop other suitors from
courting her. Their closeness developed as he was her constant partner at fiestas.

"3. After their marriage, they lived first in the home of Ben's parents, together with Ben's
brother, Alex, in Isabel, Leyte. In the first year of marriage, Marivic and Ben 'lived happily'.
But apparently, soon thereafter, the couple would quarrel often and their fights would
become violent.

"4. Ben's brother, Alex, testified for the prosecution that he could not remember when Ben
and Marivic married. He said that when Ben and Marivic quarreled, generally when Ben
would come home drunk, Marivic would inflict injuries on him. He said that in one incident in
1993 he saw Marivic holding a kitchen knife after Ben had shouted for help as his left hand
was covered with blood. Marivic left the house but after a week, she returned apparently
having asked for Ben's forgiveness. In another incident in May 22, 1994, early morning, Alex
and his father apparently rushed to Ben's aid again and saw blood from Ben's forehead and
Marivic holding an empty bottle. Ben and Marivic reconciled after Marivic had apparently
again asked for Ben's forgiveness.
"Mrs. Iluminada Genosa, Marivic's mother-in-law, testified too, saying that Ben and Marivic
married in '1986 or 1985 more or less here in Fatima, Ormoc City.' She said as the marriage
went along, Marivic became 'already very demanding. Mrs. Iluminada Genosa said that after
the birth of Marivic's two sons, there were 'three (3) misunderstandings.' The first was when
Marivic stabbed Ben with a table knife through his left arm; the second incident was on
November 15, 1994, when Marivic struck Ben on the forehead 'using a sharp instrument until
the eye was also affected. It was wounded and also the ear' and her husband went to Ben to
help; and the third incident was in 1995 when the couple had already transferred to the
house in Bilwang and she saw that Ben's hand was plastered as 'the bone cracked.'

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

"5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 'After we
collected our salary, we went to the cock-fighting place of ISCO.' They stayed there for three
(3) hours, after which they went to 'Uniloks' and drank beer – allegedly only two (2) bottles
each. After drinking they bought barbeque and went to the Genosa residence. Marivic was
not there. He stayed a while talking with Ben, after which he went across the road to wait 'for
the runner and the usher of the masiao game because during that time, the hearing on
masiao numbers was rampant. I was waiting for the ushers and runners so that I can place
my bet.' On his way home at about 9:00 in the evening, he heard the Genosas arguing. They
were quarreling loudly. Outside their house was one 'Fredo' who is used by Ben to feed his
fighting cocks. Basobas' testimony on the root of the quarrel, conveniently overheard by him
was Marivic saying 'I will never hesitate to kill you', whilst Ben replied 'Why kill me when I am
innocent.' Basobas thought they were joking.

"He did not hear them quarreling while he was across the road from the Genosa residence.
Basobas admitted that he and Ben were always at the cockpits every Saturday and Sunday.
He claims that he once told Ben 'before when he was stricken with a bottle by Marivic
Genosa' that he should leave her and that Ben would always take her back after she would
leave him 'so many times'.

"Basobas could not remember when Marivic had hit Ben, but it was a long time that they had
been quarreling. He said Ben 'even had a wound' on the right forehead. He had known the
couple for only one (1) year.

"6. Marivic testified that after the first year of marriage, Ben became cruel to her and was a
habitual drinker. She said he provoked her, he would slap her, sometimes he would pin her
down on the bed, and sometimes beat her.

"These incidents happened several times and she would often run home to her parents, but
Ben would follow her and seek her out, promising to change and would ask for her
forgiveness. She said after she would be beaten, she would seek medical help from Dr. Dino
Caing, Dr. Lucero and Dra. Cerillo. These doctors would enter the injuries inflicted upon her
by Ben into their reports. Marivic said Ben would beat her or quarrel with her every time he
was drunk, at least three times a week.

"7. In her defense, witnesses who were not so closely related to Marivic, testified as to the
abuse and violence she received at the hands of Ben.

'7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, testified that on
November 15, 1995, he overheard a quarrel between Ben and Marivic. Marivic was shouting
for help and through the open jalousies, he saw the spouses 'grappling with each other'. Ben
had Marivic in a choke hold. He did not do anything, but had come voluntarily to testify.
(Please note this was the same night as that testified to by Arturo Busabos. )
8 

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

'7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were living in
Isabel, Leyte. His house was located about fifty (50) meters from theirs. Marivic is his niece
and he knew them to be living together for 13 or 14 years. He said the couple was always
quarreling. Marivic confided in him that Ben would pawn items and then would use the
money to gamble. One time, he went to their house and they were quarreling. Ben was so
angry, but would be pacified 'if somebody would come.' He testified that while Ben was alive
'he used to gamble and when he became drunk, he would go to our house and he will say,
'Teody' because that was what he used to call me, 'mokimas ta,' which means 'let's go and
look for a whore.' Mr. Sarabia further testified that Ben 'would box his wife and I would see
bruises and one time she ran to me, I noticed a wound (the witness pointed to his right
breast) as according to her a knife was stricken to her.' Mr. Sarabia also said that once he
saw Ben had been injured too. He said he voluntarily testified only that morning.

'7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified that in the
afternoon of November 15, 1995, Marivic went to her house and asked her help to look for
Ben. They searched in the market place, several taverns and some other places, but could
not find him. She accompanied Marivic home. Marivic wanted her to sleep with her in the
Genosa house 'because she might be battered by her husband.' When they got to the
Genosa house at about 7:00 in the evening, Miss Arano said that 'her husband was already
there and was drunk.' Miss Arano knew he was drunk 'because of his staggering walking and
I can also detect his face.' Marivic entered the house and she heard them quarrel noisily.
(Again, please note that this is the same night as that testified to by Arturo Basobas) Miss
Arano testified that this was not the first time Marivic had asked her to sleep in the house as
Marivic would be afraid every time her husband would come home drunk. At one time when
she did sleep over, she was awakened at 10:00 in the evening when Ben arrived because
the couple 'were very noisy in the sala and I had heard something was broken like a vase.'
She said Marivic ran into her room and they locked the door. When Ben couldn't get in he
got a chair and a knife and 'showed us the knife through the window grill and he scared us.'
She said that Marivic shouted for help, but no one came. On cross-examination, she said
that when she left Marivic's house on November 15, 1995, the couple were still quarreling.

'7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at
PHILPHOS, Isabel, Leyte. Marivic was his patient 'many times' and had also received
treatment from other doctors. Dr. Caing testified that from July 6, 1989 until November 9,
1995, there were six (6) episodes of physical injuries inflicted upon Marivic. These injuries
were reported in his Out-Patient Chart at the PHILPHOS Hospital. The prosecution admitted
the qualifications of Dr. Caing and considered him an expert witness.'

xxx   xxx   xxx
'Dr. Caing's clinical history of the tension headache and hypertention of Marivic on twenty-
three (23) separate occasions was marked at Exhibits '2' and '2-B.' The OPD Chart of
Marivic at the Philphos Clinic which reflected all the consultations made by Marivic and
the six (6) incidents of physical injuries reported was marked as Exhibit '3.'

"On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say whether
the injuries were directly related to the crime committed. He said it is only a psychiatrist who
is qualified to examine the psychological make-up of the patient, 'whether she is capable of
committing a crime or not.'

'7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided, testified
that about two (2) months before Ben died, Marivic went to his office past 8:00 in the
evening. She sought his help to settle or confront the Genosa couple who were experiencing
'family troubles'. He told Marivic to return in the morning, but he did not hear from her again
and assumed 'that they might have settled with each other or they might have forgiven with
each other.'

xxx   xxx   xxx

"Marivic said she did not provoke her husband when she got home that night it was her
husband who began the provocation. Marivic said she was frightened that her husband
would hurt her and she wanted to make sure she would deliver her baby safely. In fact,
Marivic had to be admitted later at the Rizal Medical Centre as she was suffering from
eclampsia and hypertension, and the baby was born prematurely on December 1, 1995.

"Marivic testified that during her marriage she had tried to leave her husband at least five (5)
times, but that Ben would always follow her and they would reconcile. Marivic said that the
reason why Ben was violent and abusive towards her that night was because 'he was crazy
about his recent girlfriend, Lulu x x x Rubillos.'

"On cross-examination, Marivic insisted she shot Ben with a gun; she said that he died in the
bedroom; that their quarrels could be heard by anyone passing their house; that Basobas
lied in his testimony; that she left for Manila the next day, November 16, 1995; that she did
not bother anyone in Manila, rented herself a room, and got herself a job as a field
researcher under the alias 'Marvelous Isidro'; she did not tell anyone that she was leaving
Leyte, she just wanted to have a safe delivery of her baby; and that she was arrested in San
Pablo, Laguna.

'Answering questions from the Court, Marivic said that she threw the gun away; that she did
not know what happened to the pipe she used to 'smash him once'; that she was wounded
by Ben on her wrist with the bolo; and that two (2) hours after she was 'whirled' by Ben, he
kicked her 'ass' and dragged her towards the drawer when he saw that she had packed his
things.'

"9. The body of Ben Genosa was found on November 18, 1995 after an investigation was
made of the foul odor emitting from the Genosa residence. This fact was testified to by all the
prosecution witnesses and some defense witnesses during the trial.

"10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel, Leyte at
the time of the incident, and among her responsibilities as such was to take charge of all
medico-legal cases, such as the examination of cadavers and the autopsy of cadavers. Dra.
Cerillo is not a forensic pathologist. She merely took the medical board exams and passed in
1986. She was called by the police to go to the Genosa residence and when she got there,
she saw 'some police officer and neighbor around.' She saw Ben Genosa, covered by a
blanket, lying in a semi-prone position with his back to the door. He was wearing only a brief.

xxxxxxxxx

"Dra. Cerillo said that 'there is only one injury and that is the injury involving the skeletal area
of the head' which she described as a 'fracture'. And that based on her examination, Ben had
been dead 2 or 3 days. Dra. Cerillo did not testify as to what caused his death.

"Dra. Cerillo was not cross-examined by defense counsel.

"11. The Information, dated November 14, 1996, filed against Marivic Genosa charged her
with the crime of PARRICIDE committed 'with intent to kill, with treachery and evidence
premeditation, x x x wilfully, unlawfully and feloniously attack, assault, hit and wound x x x
her legitimate husband, with the use of a hard deadly weapon x x x which caused his death.'

"12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and 23
September 1997, 12 November 1997, 15 and 16 December 1997, 22 May 1998, and 5 and 6
August 1998.

"13. On 23 September 1998, or only fifty (50) days from the day of the last trial date, the
Hon. Fortunito L. Madrona, Presiding Judge, RTC-Branch 35, Ormoc City, rendered a
JUDGMENT finding Marivic guilty 'beyond reasonable doubt' of the crime of parricide, and
further found treachery as an aggravating circumstance, thus sentencing her to the ultimate
penalty of DEATH.

"14. The case was elevated to this Honorable Court upon automatic review and, under date
of 24 January 2000, Marivic's trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a Motion to
Withdraw as counsel, attaching thereto, as a precautionary measure, two (2) drafts of
Appellant's Briefs he had prepared for Marivic which, for reasons of her own, were not
conformed to by her.

"The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the entry of
appearance of undersigned counsel.

"15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20 January
2000, to the Chief Justice, coursing the same through Atty. Teresita G. Dimaisip, Deputy
Clerk of Court of Chief Judicial Records Office, wherein she submitted her 'Brief without
counsels' to the Court.

"This letter was stamp-received by the Honorable Court on 4 February 2000.

"16. In the meantime, under date of 17 February 2000, and stamp-received by the Honorable
Court on 19 February 2000, undersigned counsel filed an URGENT OMNIBUS MOTION
praying that the Honorable Court allow the exhumation of Ben Genosa and the re-
examination of the cause of his death; allow the examination of Marivic Genosa by qualified
psychologists and psychiatrists to determine her state of mind at the time she killed her
husband; and finally, to allow a partial re-opening of the case a quo to take the testimony of
said psychologists and psychiatrists.
"Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then the
only qualified forensic pathologist in the country, who opined that the description of the death
wound (as culled from the post-mortem findings, Exhibit 'A') is more akin to a gunshot wound
than a beating with a lead pipe.

"17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly granted
Marivic's URGENT OMNIBUS MOTION and remanded the case 'to the trial court for the
reception of expert psychological and/or psychiatric opinion on the 'battered woman
syndrome' plea, within ninety (90) days from notice, and, thereafter to forthwith report to this
Court the proceedings taken, together with the copies of the TSN and relevant documentary
evidence, if any, submitted.'

"18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the Hon.
Fortunito L. Madrona, RTC-Branch 35, Ormoc City.

"Immediately before Dra. Dayan was sworn, the Court a quo asked if she had interviewed
Marivic Genosa. Dra. Dayan informed the Court that interviews were done at the Penal
Institution in 1999, but that the clinical interviews and psychological assessment were done
at her clinic.

"Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years with her
own private clinic and connected presently to the De La Salle University as a professor.
Before this, she was the Head of the Psychology Department of the Assumption College; a
member of the faculty of Psychology at the Ateneo de Manila University and St. Joseph's
College; and was the counseling psychologist of the National Defense College. She has an
AB in Psychology from the University of the Philippines, a Master of Arts in Clinical
[Counseling], Psychology from the Ateneo, and a PhD from the U.P. She was the past
president of the Psychological Association of the Philippines and is a member of the
American Psychological Association. She is the secretary of the International Council of
Psychologists from about 68 countries; a member of the Forensic Psychology Association;
and a member of the ASEAN [Counseling] Association. She is actively involved with the
Philippine Judicial Academy, recently lecturing on the socio-demographic and psychological
profile of families involved in domestic violence and nullity cases. She was with the Davide
Commission doing research about Military Psychology. She has written a book entitled
'Energy Global Psychology' (together with Drs. Allan Tan and Allan Bernardo). The Genosa
case is the first time she has testified as an expert on battered women as this is the first case
of that nature.

"Dra. Dayan testified that for the research she conducted, on the socio-demographic and
psychological profile of families involved in domestic violence, and nullity cases, she looked
at about 500 cases over a period of ten (10) years and discovered that 'there are lots of
variables that cause all of this marital conflicts, from domestic violence to infidelity, to
psychiatric disorder.'

"Dra. Dayan described domestic violence to comprise of 'a lot of incidents of psychological
abuse, verbal abuse, and emotional abuse to physical abuse and also sexual abuse.'

xxx   xxx   xxx

"Dra. Dayan testified that in her studies, 'the battered woman usually has a very low opinion
of herself. She has a self-defeating and self-sacrificing characteristics. x x x they usually
think very lowly of themselves and so when the violence would happen, they usually think
that they provoke it, that they were the one who precipitated the violence, they provoke their
spouse to be physically, verbally and even sexually abusive to them.' Dra. Dayan said that
usually a battered x x x comes from a dysfunctional family or from 'broken homes.'

"Dra. Dayan said that the batterer, just like the battered woman, 'also has a very low opinion
of himself. But then emerges to have superiority complex and it comes out as being very
arrogant, very hostile, very aggressive and very angry. They also had (sic) a very low
tolerance for frustrations. A lot of times they are involved in vices like gambling, drinking and
drugs. And they become violent.' The batterer also usually comes from a dysfunctional family
which over-pampers them and makes them feel entitled to do anything. Also, they see often
how their parents abused each other so 'there is a lot of modeling of aggression in the
family.'

"Dra. Dayan testified that there are a lot of reasons why a battered woman does not leave
her husband: poverty, self-blame and guilt that she provoked the violence, the cycle itself
which makes her hope her husband will change, the belief in her obligations to keep the
family intact at all costs for the sake of the children.

xxx   xxx   xxx

"Dra. Dayan said that abused wives react differently to the violence: some leave the house,
or lock themselves in another room, or sometimes try to fight back triggering 'physical
violence on both of them.' She said that in a 'normal marital relationship,' abuses also
happen, but these are 'not consistent, not chronic, are not happening day in [and] day out.' In
an 'abnormal marital relationship,' the abuse occurs day in and day out, is long lasting and
'even would cause hospitalization on the victim and even death on the victim.'

xxx   xxx   xxx

"Dra. Dayan said that as a result of the battery of psychological tests she administered, it
was her opinion that Marivic fits the profile of a battered woman because 'inspite of her
feeling of self-confidence which we can see at times there are really feeling (sic) of loss,
such feelings of humiliation which she sees herself as damaged and as a broken person.
And at the same time she still has the imprint of all the abuses that she had experienced in
the past.'

xxx   xxx   xxx

"Dra. Dayan said Marivic thought of herself as a loving wife and did not even consider filing
for nullity or legal separation inspite of the abuses. It was at the time of the tragedy that
Marivic then thought of herself as a victim.

xxx   xxx   xxx

"19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed away,
appeared and testified before RTC-Branch 35, Ormoc City.

"Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the
Philippine Board of Psychiatry and a Fellow of the Philippine Psychiatry Association. He was
in the practice of psychiatry for thirty-eight (38) years. Prior to being in private practice, he
was connected with the Veterans Memorial Medical Centre where he gained his training on
psychiatry and neurology. After that, he was called to active duty in the Armed Forces of the
Philippines, assigned to the V. Luna Medical Center for twenty six (26) years. Prior to his
retirement from government service, he obtained the rank of Brigadier General. He obtained
his medical degree from the University of Santo Tomas. He was also a member of the World
Association of Military Surgeons; the Quezon City Medical Society; the Cagayan Medical
Society; and the Philippine Association of Military Surgeons.

"He authored 'The Comparative Analysis of Nervous Breakdown in the Philippine Military
Academy from the Period 1954 – 1978' which was presented twice in international
congresses. He also authored 'The Mental Health of the Armed Forces of the Philippines
2000', which was likewise published internationally and locally. He had a medical textbook
published on the use of Prasepam on a Parke-Davis grant; was the first to use Enanthate
(siquiline), on an E.R. Squibb grant; and he published the use of the drug Zopiclom in 1985-
86.

"Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind and
neurology deals with the ailment of the brain and spinal cord enlarged. Psychology, on the
other hand, is a bachelor degree and a doctorate degree; while one has to finish medicine to
become a specialist in psychiatry.

"Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had already
encountered a suit involving violent family relations, and testified in a case in 1964. In the
Armed Forces of the Philippines, violent family disputes abound, and he has seen probably
ten to twenty thousand cases. In those days, the primordial intention of therapy was
reconciliation. As a result of his experience with domestic violence cases, he became a
consultant of the Battered Woman Office in Quezon City under Atty. Nenita Deproza.

"As such consultant, he had seen around forty (40) cases of severe domestic violence,
where there is physical abuse: such as slapping, pushing, verbal abuse, battering and
boxing a woman even to an unconscious state such that the woman is sometimes confined.
The affliction of Post-Traumatic Stress Disorder 'depends on the vulnerability of the victim.'
Dr. Pajarillo said that if the victim is not very healthy, perhaps one episode of violence may
induce the disorder; if the psychological stamina and physiologic constitutional stamina of
the victim is stronger, 'it will take more repetitive trauma to precipitate the post-traumatic
stress disorder and this x x x is very dangerous.'

"In psychiatry, the post-traumatic stress disorder is incorporated under the 'anxiety neurosis
or neurologic anxcietism.' It is produced by 'overwhelming brutality, trauma.'

xxx   xxx   xxx

"Dr. Pajarillo explained that with 'neurotic anxiety', the victim relives the beating or trauma as
if it were real, although she is not actually being beaten at that time. She thinks 'of nothing
but the suffering.'

xxx   xxx   xxx

"A woman who suffers battery has a tendency to become neurotic, her emotional tone is
unstable, and she is irritable and restless. She tends to become hard-headed and persistent.
She has higher sensitivity and her 'self-world' is damaged.
 "Dr. Pajarillo said that an abnormal family background relates to an individual's illness, such
as the deprivation of the continuous care and love of the parents. As to the batterer, he
normally 'internalizes what is around him within the environment.' And it becomes his own
personality. He is very competitive; he is aiming high all the time; he is so macho; he shows
his strong façade 'but in it there are doubts in himself and prone to act without thinking.'

xxx   xxx   xxx

"Dr. Pajarillo emphasized that 'even though without the presence of the precipator (sic) or the
one who administered the battering, that re-experiencing of the trauma occurred (sic)
because the individual cannot control it. It will just come up in her mind or in his mind.'

xxx   xxx   xxx

"Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to defend
themselves, and 'primarily with knives. Usually pointed weapons or any weapon that is
available in the immediate surrounding or in a hospital x x x because that abound in the
household.' He said a victim resorts to weapons when she has 'reached the lowest rock
bottom of her life and there is no other recourse left on her but to act decisively.'

xxx   xxx   xxx

"Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview he conducted
for two (2) hours and seventeen (17) minutes. He used the psychological evaluation and
social case studies as a help in forming his diagnosis. He came out with a Psychiatric
Report, dated 22 January 2001.

xxx   xxx   xxx

"On cross-examination by the private prosecutor, Dr. Pajarillo said that at the time she killed
her husband Marivic'c mental condition was that she was 're-experiencing the trauma.' He
said 'that we are trying to explain scientifically that the re-experiencing of the trauma is not
controlled by Marivic. It will just come in flashes and probably at that point in time that things
happened when the re-experiencing of the trauma flashed in her mind.' At the time he
interviewed Marivic 'she was more subdued, she was not super alert anymore x x x she is
mentally stress (sic) because of the predicament she is involved.'

xxx   xxx   xxx

"20. No rebuttal evidence or testimony was presented by either the private or the public
prosecutor. Thus, in accord with the Resolution of this Honorable Court, the records of the
partially re-opened trial a quo were elevated." 9

Ruling of the Trial Court

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

Supervening Circumstances

On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this Court allow (1) the
exhumation of Ben Genosa and the reexamination of the cause of his death; (2) the examination of
appellant by qualified psychologists and psychiatrists to determine her state of mind at the time she
had killed her spouse; and (3) the inclusion of the said experts' reports in the records of the case for
purposes of the automatic review or, in the alternative, a partial reopening of the case for the lower
court to admit the experts' testimonies.

On September 29, 2000, this Court issued a Resolution granting in part appellant's Motion,
remanding the case to the trial court for the reception of expert psychological and/or psychiatric
opinion on the "battered woman syndrome" plea; and requiring the lower court to report thereafter to
this Court the proceedings taken as well as to submit copies of the TSN and additional evidence, if
any.

Acting on the Court's Resolution, the trial judge authorized the examination of Marivic by two clinical
psychologists, Drs. Natividad Dayan and Alfredo Pajarillo, supposedly experts on domestic
10  11 

violence. Their testimonies, along with their documentary evidence, were then presented to and
admitted by the lower court before finally being submitted to this Court to form part of the records of
the case.12

The Issues

Appellant assigns the following alleged errors of the trial court for this Court's consideration:

"1. The trial court gravely erred in promulgating an obviously hasty decision without reflecting
on the evidence adduced as to self-defense.

"2. The trial court gravely erred in finding as a fact that Ben and Marivic Genosa were legally
married and that she was therefore liable for parricide.

"3. The trial court gravely erred finding the cause of death to be by beating with a pipe.

"4. The trial court gravely erred in ignoring and disregarding evidence adduced from impartial
and unbiased witnesses that Ben Genosa was a drunk, a gambler, a womanizer and wife-
beater; and further gravely erred in concluding that Ben Genosa was a battered husband.

"5. The trial court gravely erred in not requiring testimony from the children of Marivic
Genosa.

"6. The trial court gravely erred in concluding that Marivic's flight to Manila and her
subsequent apologies were indicia of guilt, instead of a clear attempt to save the life of her
unborn child.

"7. The trial court gravely erred in concluding that there was an aggravating circumstance of
treachery.

"8. The trial court gravely erred in refusing to re-evaluate the traditional elements in
determining the existence of self-defense and defense of foetus in this case, thereby
 erroneously convicting Marivic Genosa of the crime of parricide and condemning her to the
ultimate penalty of death." 13

In the main, the following are the essential legal issues: (1) whether appellant acted in self-defense
and in defense of her fetus; and (2) whether treachery attended the killing of Ben Genosa.

The Court's Ruling

The appeal is partly meritorious.

Collateral Factual Issues

The first six assigned errors raised by appellant are factual in nature, if not collateral to the resolution
of the principal issues. As consistently held by this Court, the findings of the trial court on the
credibility of witnesses and their testimonies are entitled to a high degree of respect and will not be
disturbed on appeal in the absence of any showing that the trial judge gravely abused his discretion
or overlooked, misunderstood or misapplied material facts or circumstances of weight and substance
that could affect the outcome of the case. 14

In appellant's first six assigned items, we find no grave abuse of discretion, reversible error or
misappreciation of material facts that would reverse or modify the trial court's disposition of the case.
In any event, we will now briefly dispose of these alleged errors of the trial court.

First, we do not agree that the lower court promulgated "an obviously hasty decision without
reflecting on the evidence adduced as to self-defense." We note that in his 17-page Decision, Judge
Fortunito L. Madrona summarized the testimonies of both the prosecution and the defense
witnesses and -- on the basis of those and of the documentary evidence on record -- made his
evaluation, findings and conclusions. He wrote a 3-page discourse assessing the testimony and the
self-defense theory of the accused. While she, or even this Court, may not agree with the trial
judge's conclusions, we cannot peremptorily conclude, absent substantial evidence, that he failed to
reflect on the evidence presented.

Neither do we find the appealed Decision to have been made in an "obviously hasty" manner. The
Information had been filed with the lower court on November 14, 1996. Thereafter, trial began and at
least 13 hearings were held for over a year. It took the trial judge about two months from the
conclusion of trial to promulgate his judgment. That he conducted the trial and resolved the case
with dispatch should not be taken against him, much less used to condemn him for being unduly
hasty. If at all, the dispatch with which he handled the case should be lauded. In any case, we find
his actions in substantial compliance with his constitutional obligation. 15

Second, the lower court did not err in finding as a fact that Ben Genosa and appellant had been
legally married, despite the non-presentation of their marriage contract. In People v. Malabago, this16 

Court held:

"The key element in parricide is the relationship of the offender with the victim. In the case of
parricide of a spouse, the best proof of the relationship between the accused and the
deceased is the marriage certificate. In the absence of a marriage certificate, however, oral
evidence of the fact of marriage may be considered by the trial court if such proof is not
objected to."
Two of the prosecution witnesses -- namely, the mother and the brother of appellant's deceased
spouse -- attested in court that Ben had been married to Marivic. The defense raised no objection to
17 

these testimonies. Moreover, during her direct examination, appellant herself made a judicial
admission of her marriage to Ben. Axiomatic is the rule that a judicial admission is conclusive upon
18 

the party making it, except only when there is a showing that (1) the admission was made through a
palpable mistake, or (2) no admission was in fact made. Other than merely attacking the non-
19 

presentation of the marriage contract, the defense offered no proof that the admission made by
appellant in court as to the fact of her marriage to the deceased was made through a palpable
mistake.

Third, under the circumstances of this case, the specific or direct cause of Ben's death -- whether by
a gunshot or by beating with a pipe -- has no legal consequence. As the Court elucidated in its
September 29, 2000 Resolution, "[c]onsidering that the appellant has admitted the fact of killing her
husband and the acts of hitting his nape with a metal pipe and of shooting him at the back of his
head, the Court believes that exhumation is unnecessary, if not immaterial, to determine which of
said acts actually caused the victim's death." Determining which of these admitted acts caused the
death is not dispositive of the guilt or defense of appellant.

Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben was a drunk,
gambler, womanizer and wife-beater. Until this case came to us for automatic review, appellant had
not raised the novel defense of "battered woman syndrome," for which such evidence may have
been relevant. Her theory of self-defense was then the crucial issue before the trial court. As will be
discussed shortly, the legal requisites of self-defense under prevailing jurisprudence ostensibly
appear inconsistent with the surrounding facts that led to the death of the victim. Hence, his personal
character, especially his past behavior, did not constitute vital evidence at the time.

Fifth, the trial court surely committed no error in not requiring testimony from appellant's children. As
correctly elucidated by the solicitor general, all criminal actions are prosecuted under the direction
and control of the public prosecutor, in whom lies the discretion to determine which witnesses and
evidence are necessary to present. As the former further points out, neither the trial court nor the
20 

prosecution prevented appellant from presenting her children as witnesses. Thus, she cannot now
fault the lower court for not requiring them to testify.

Finally, merely collateral or corroborative is the matter of whether the flight of Marivic to Manila and
her subsequent apologies to her brother-in-law are indicia of her guilt or are attempts to save the life
of her unborn child. Any reversible error as to the trial court's appreciation of these circumstances
has little bearing on the final resolution of the case.

First Legal Issue:

Self-Defense and Defense of a Fetus

Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes self-defense and/or
defense of her unborn child. When the accused admits killing the victim, it is incumbent upon her to
prove any claimed justifying circumstance by clear and convincing evidence. Well-settled is the rule
21 

that in criminal cases, self-defense (and similarly, defense of a stranger or third person) shifts the
burden of proof from the prosecution to the defense. 22

The Battered Woman Syndrome

In claiming self-defense, appellant raises the novel theory of the battered woman syndrome. While
new in Philippine jurisprudence, the concept has been recognized in foreign jurisdictions as a form of
self-defense or, at the least, incomplete self-defense. By appreciating evidence that a victim or
23 

defendant is afflicted with the syndrome, foreign courts convey their "understanding of the justifiably
fearful state of mind of a person who has been cyclically abused and controlled over a period of
time."
24

A battered woman has been defined as a woman "who is repeatedly subjected to any forceful
physical or psychological behavior by a man in order to coerce her to do something he wants her to
do without concern for her rights. Battered women include wives or women in any form of intimate
relationship with men. Furthermore, in order to be classified as a battered woman, the couple must
go through the battering cycle at least twice. Any woman may find herself in an abusive relationship
with a man once. If it occurs a second time, and she remains in the situation, she is defined as a
battered woman." 25

Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs about
the home, the family and the female sex role; emotional dependence upon the dominant male; the
tendency to accept responsibility for the batterer's actions; and false hopes that the relationship will
improve. 26

More graphically, the battered woman syndrome is characterized by the so-called "cycle of
violence," which has three phases: (1) the tension-building phase; (2) the acute battering incident;
27 

and (3) the tranquil, loving (or, at least, nonviolent) phase.

28

During the tension-building phase, minor battering occurs -- it could be verbal or slight physical
abuse or another form of hostile behavior. The woman usually tries to pacify the batterer through a
show of kind, nurturing behavior; or by simply staying out of his way. What actually happens is that
she allows herself to be abused in ways that, to her, are comparatively minor. All she wants is to
prevent the escalation of the violence exhibited by the batterer. This wish, however, proves to be
double-edged, because her "placatory" and passive behavior legitimizes his belief that he has the
right to abuse her in the first place.

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

The acute battering incident is said to be characterized by brutality, destructiveness and,

sometimes, death. The battered woman deems this incident as unpredictable, yet also inevitable.
During this phase, she has no control; only the batterer may put an end to the violence. Its nature
can be as unpredictable as the time of its explosion, and so are his reasons for ending it. The
battered woman usually realizes that she cannot reason with him, and that resistance would only
exacerbate her condition.

At this stage, she has a sense of detachment from the attack and the terrible pain, although she may
later clearly remember every detail. Her apparent passivity in the face of acute violence may be
rationalized thus: the batterer is almost always much stronger physically, and she knows from her
past painful experience that it is futile to fight back. Acute battering incidents are often very savage
and out of control, such that innocent bystanders or intervenors are likely to get hurt.
30

The final phase of the cycle of violence begins when the acute battering incident ends. During
this tranquil period, the couple experience profound relief. On the one hand, the batterer may show
a tender and nurturing behavior towards his partner. He knows that he has been viciously cruel and
tries to make up for it, begging for her forgiveness and promising never to beat her again. On the
other hand, the battered woman also tries to convince herself that the battery will never happen
again; that her partner will change for the better; and that this "good, gentle and caring man" is the
real person whom she loves.

A battered woman usually believes that she is the sole anchor of the emotional stability of the
batterer. Sensing his isolation and despair, she feels responsible for his well-being. The truth,
though, is that the chances of his reforming, or seeking or receiving professional help, are very slim,
especially if she remains with him. Generally, only after she leaves him does he seek professional
help as a way of getting her back. Yet, it is in this phase of remorseful reconciliation that she is most
thoroughly tormented psychologically.

The illusion of absolute interdependency is well-entrenched in a battered woman's psyche. In this

phase, she and her batterer are indeed emotionally dependent on each other -- she for his nurturant
behavior, he for her forgiveness. Underneath this miserable cycle of "tension, violence and
forgiveness," each partner may believe that it is better to die than to be separated. Neither one may
really feel independent, capable of functioning without the other. 31

History of Abuse
in the Present Case

To show the history of violence inflicted upon appellant, the defense presented several witnesses.
She herself described her heart-rending experience as follows:

"ATTY. TABUCANON

Q How did you describe your marriage with Ben Genosa?

A In the first year, I lived with him happily but in the subsequent year he was cruel to me and
a behavior of habitual drinker.

Q You said that in the subsequent year of your marriage, your husband was abusive to you
and cruel. In what way was this abusive and cruelty manifested to you?

A He always provoke me in everything, he always slap me and sometimes he pinned me

down on the bed and sometimes beat me.

Q How many times did this happen?

A Several times already.

Q What did you do when these things happen to you?

A I went away to my mother and I ran to my father and we separate each other.

Q What was the action of Ben Genosa towards you leaving home?

A He is following me, after that he sought after me.

Q What will happen when he follow you?

 A He said he changed, he asked for forgiveness and I was convinced and after that I go to
him and he said 'sorry'.

Q During those times that you were the recipient of such cruelty and abusive behavior by
your husband, were you able to see a doctor?

A Yes, sir.

Q Who are these doctors?

A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.

xxx   xxx   xxx

Q You said that you saw a doctor in relation to your injuries?

A Yes, sir.

Q Who inflicted these injuries?

A Of course my husband.

Q You mean Ben Genosa?

A Yes, sir.

xxx   xxx   xxx

[Court] /to the witness

Q How frequent was the alleged cruelty that you said?

A Everytime he got drunk.

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

A Everytime he got drunk.

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

A Three times a week.

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

A Not necessarily that he would beat me but sometimes he will just quarrel me."  32

Referring to his "Out-Patient Chart" on Marivic Genosa at the Philphos Hospital, Dr. Dino D. Caing
33 

bolstered her foregoing testimony on chronic battery in this manner:

"Q So, do you have a summary of those six (6) incidents which are found in the chart of your
clinic?

A Yes, sir.

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

A I did.

Q Will you please read the physical findings together with the dates for the record.

A 1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower eyelid and
redness of eye. Attending physician: Dr. Lucero;

2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area, pain and contusion
(R) breast. Attending physician: Dr. Canora;

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

4. August 1, 1994 - Pain, mastitis (L) breast, 2o to trauma. Attending physician: Dr.
Caing;

5. April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending physician: Dr.
Canora; and

6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion Pregnancy. Attending
physician: Dr. Canora.

Q Among the findings, there were two (2) incidents wherein you were the attending
physician, is that correct?

A Yes, sir.

Q Did you actually physical examine the accused?

A Yes, sir.

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

A Abrasion is a skin wound usually when it comes in contact with something rough
substance if force is applied.

Q What is meant by furuncle axilla?

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

Q What is meant by pain mastitis secondary to trauma?

A So, in this 4th episode of physical injuries there is an inflammation of left breast. So, [pain]
meaning there is tenderness. When your breast is traumatized, there is tenderness pain.

Q So, these are objective physical injuries. Doctor?

xxx   xxx   xxx

Q Were you able to talk with the patient?

A Yes, sir.

Q What did she tell you?

A As a doctor-patient relationship, we need to know the cause of these injuries. And she told
me that it was done to her by her husband.

Q You mean, Ben Genosa?

A Yes, sir.

xxx   xxx   xxx

ATTY. TABUCANON:

Q By the way Doctor, were you able to physical examine the accused sometime in the month
of November, 1995 when this incident happened?

A As per record, yes.

Q What was the date?

A It was on November 6, 1995.

Q So, did you actually see the accused physically?

A Yes, sir.

Q On November 6, 1995, will you please tell this Honorable Court, was the patient pregnant?

A Yes, sir.

Q Being a doctor, can you more engage at what stage of pregnancy was she?

A Eight (8) months pregnant.

Q So in other words, it was an advance stage of pregnancy?

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

A No, she was admitted for hypertension headache which complicates her pregnancy.

Q When you said admitted, meaning she was confined?

A Yes, sir.

Q For how many days?

A One day.

Q Where?

A At PHILPHOS Hospital.

xxx   xxx   xxx

Q Lets go back to the clinical history of Marivic Genosa. You said that you were able to
examine her personally on November 6, 1995 and she was 8 months pregnant.

What is this all about?

A Because she has this problem of tension headache secondary to hypertension and I think I
have a record here, also the same period from 1989 to 1995, she had a consultation for
twenty-three (23) times.

Q For what?

A Tension headache.

Q Can we say that specially during the latter consultation, that the patient had hypertension?

A The patient definitely had hypertension. It was refractory to our treatment. She does not
response when the medication was given to her, because tension headache is more or less
stress related and emotional in nature.

Q What did you deduce of tension headache when you said is emotional in nature?

A From what I deduced as part of our physical examination of the patient is the family history
in line of giving the root cause of what is causing this disease. So, from the moment you ask
to the patient all comes from the domestic problem.

Q You mean problem in her household?

A Probably.

Q Can family trouble cause elevation of blood pressure, Doctor?

 A Yes, if it is emotionally related and stressful it can cause increases in hypertension which
is unfortunately does not response to the medication.

Q In November 6, 1995, the date of the incident, did you take the blood pressure of the
accused?

A On November 6, 1995 consultation, the blood pressure was 180/120.

Q Is this considered hypertension?

A Yes, sir, severe.

Q Considering that she was 8 months pregnant, you mean this is dangerous level of blood
pressure?

A It was dangerous to the child or to the fetus." 

34

Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in Isabel, Leyte,
testified that he had seen the couple quarreling several times; and that on some occasions Marivic
would run to him with bruises, confiding that the injuries were inflicted upon her by Ben.
35

Ecel Arano also testified that for a number of times she had been asked by Marivic to sleep at the
36 

Genosa house, because the latter feared that Ben would come home drunk and hurt her. On one
occasion that Ecel did sleep over, she was awakened about ten o'clock at night, because the couple
"were very noisy … and I heard something was broken like a vase." Then Marivic came running into
Ecel's room and locked the door. Ben showed up by the window grill atop a chair, scaring them with
a knife.

On the afternoon of November 15, 1995, Marivic again asked her help -- this time to find Ben -- but
they were unable to. They returned to the Genosa home, where they found him already drunk. Again
afraid that he might hurt her, Marivic asked her to sleep at their house. Seeing his state of
drunkenness, Ecel hesitated; and when she heard the couple start arguing, she decided to leave.

On that same night that culminated in the death of Ben Genosa, at least three other witnesses saw
or heard the couple quarreling. Marivic relates in detail the following backdrop of the fateful night
37 

when life was snuffed out of him, showing in the process a vivid picture of his cruelty towards her:

"ATTY. TABUCANON:

Q Please tell this Court, can you recall the incident in November 15, 1995 in the evening?

A Whole morning and in the afternoon, I was in the office working then after office hours, I
boarded the service bus and went to Bilwang. When I reached Bilwang, I immediately asked
my son, where was his father, then my second child said, 'he was not home yet'. I was
worried because that was payday, I was anticipating that he was gambling. So while waiting
for him, my eldest son arrived from school, I prepared dinner for my children.

Q This is evening of November 15, 1995?

A Yes, sir.
Q What time did Ben Genosa arrive?

A When he arrived, I was not there, I was in Isabel looking for him.

Q So when he arrived you were in Isabel looking for him?

A Yes, sir.

Q Did you come back to your house?

A Yes, sir.

Q By the way, where was your conjugal residence situated this time?

A Bilwang.

Q Is this your house or you are renting?

A Renting.

Q What time were you able to come back in your residence at Bilwang?

A I went back around almost 8:00 o'clock.

Q What happened when you arrived in your residence?

A When I arrived home with my cousin Ecel whom I requested to sleep with me at that time
because I had fears that he was again drunk and I was worried that he would again beat me
so I requested my cousin to sleep with me, but she resisted because she had fears that the
same thing will happen again last year.

Q Who was this cousin of yours who you requested to sleep with you?

A Ecel Araño, the one who testified.

Q Did Ecel sleep with you in your house on that evening?

A No, because she expressed fears, she said her father would not allow her because of Ben.

Q During this period November 15, 1995, were you pregnant?

A Yes, 8 months.

Q How advance was your pregnancy?

A Eight (8) months.

Q Was the baby subsequently born?

A Yes, sir.

Q What's the name of the baby you were carrying at that time?

A Marie Bianca.

Q What time were you able to meet personally your husband?

A Yes, sir.

Q What time?

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

Q Will you tell this Court what was his disposition?

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

Q What was he yelling all about?

A His usual attitude when he got drunk.

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

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

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

A He was angry at me because I was following x x x him, looking for him. I was just worried
he might be overly drunk and he would beat me again.

Q You said that he was yelling at you, what else, did he do to you if any?

A He was nagging at me at that time and I just ignore him because I want to avoid trouble for
fear that he will beat me again. Perhaps he was disappointed because I just ignore him of his
provocation and he switch off the light and I said to him, 'why did you switch off the light
when the children were there.' At that time I was also attending to my children who were
doing their assignments. He was angry with me for not answering his challenge, so he went
to the kitchen and [got] a bolo and cut the antenna wire to stop me from watching television.

Q What did he do with the bolo?

A He cut the antenna wire to keep me from watching T.V.

Q What else happened after he cut the wire?

A He switch off the light and the children were shouting because they were scared and he
was already holding the bolo.
Q How do you described this bolo?

A 1 1/2 feet.

Q What was the bolo used for usually?

A For chopping meat.

Q You said the children were scared, what else happened as Ben was carrying that bolo?

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

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

A When I attempt to run he held my hands and he whirled me and I fell to the bedside.

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

A I screamed for help and then he left.

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

A Yes, sir.

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

A Outside perhaps to drink more.

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

A I packed all his clothes.

Q What was your reason in packing his clothes?

A I wanted him to leave us.

Q During this time, where were your children, what were their reactions?

A After a couple of hours, he went back again and he got angry with me for packing his
clothes, then he dragged me again of the bedroom holding my neck.

Q You said that when Ben came back to your house, he dragged you? How did he drag
you?

COURT INTERPRETER:

The witness demonstrated to the Court by using her right hand flexed forcibly in her
front neck)
A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept on shouting at me
that 'you might as well be killed so there will be nobody to nag me.'

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

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER:

(At this juncture the witness started crying).

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

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

COURT INTERPRETER:

(The witness at this juncture is crying intensely).

xxx   xxx   xxx

ATTY. TABUCANON:

Q Talking of drawer, is this drawer outside your room?

A Outside.
 Q In what part of the house?

A Dining.

Q Where were the children during that time?

A My children were already asleep.

Q You mean they were inside the room?

A Yes, sir.

Q You said that he dropped the blade, for the record will you please describe this blade
about 3 inches long, how does it look like?

A Three (3) inches long and 1/2 inch wide.

Q Is it a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes, sir, that was the object used when he intimidate me."  38

In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert witness to assist it in
understanding the psyche of a battered person. She had met with Marivic Genosa for five sessions
totaling about seventeen hours. Based on their talks, the former briefly related the latter's ordeal to
the court a quo as follows:

"Q: What can you say, that you found Marivic as a battered wife? Could you in layman's term
describe to this Court what her life was like as said to you?

A: What I remember happened then was it was more than ten years, that she was suffering
emotional anguish. There were a lot of instances of abuses, to emotional abuse, to verbal
abuse and to physical abuse. The husband had a very meager income, she was the one
who was practically the bread earner of the family. The husband was involved in a lot of
vices, going out with barkadas, drinking, even womanizing being involved in cockfight and
going home very angry and which will trigger a lot of physical abuse. She also had the
experience a lot of taunting from the husband for the reason that the husband even accused
her of infidelity, the husband was saying that the child she was carrying was not his own. So
 she was very angry, she was at the same time very depressed because she was also aware,
almost like living in purgatory or even hell when it was happening day in and day out."  39

In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but wittingly or unwittingly
put forward, additional supporting evidence as shown below:

"Q In your first encounter with the appellant in this case in 1999, where you talked to her
about three hours, what was the most relevant information did you gather?

A The most relevant information was the tragedy that happened. The most important
information were escalating abuses that she had experienced during her marital life.

Q Before you met her in 1999 for three hours, we presume that you already knew of the facts
of the case or at least you have substantial knowledge of the facts of the case?

A I believe I had an idea of the case, but I do not know whether I can consider them as
substantial.

xxx   xxx   xxx

Q Did you gather an information from Marivic that on the side of her husband they were fond
of battering their wives?

A I also heard that from her?

Q You heard that from her?

A Yes, sir.

Q Did you ask for a complete example who are the relatives of her husband that were fond of
battering their wives?

A What I remember that there were brothers of her husband who are also battering their
wives.

Q Did she not inform you that there was an instance that she stayed in a hotel in Ormoc
where her husband followed her and battered [her] several times in that room?

A She told me about that.

Q Did she inform you in what hotel in Ormoc?

A Sir, I could not remember but I was told that she was battered in that room.

Q Several times in that room?

A Yes, sir. What I remember was that there is no problem about being battered, it really
happened.
 Q Being an expert witness, our jurisprudence is not complete on saying this matter. I think
that is the first time that we have this in the Philippines, what is your opinion?

A Sir, my opinion is, she is really a battered wife and in this kind happened, it was really a
self-defense. I also believe that there had been provocation and I also believe that she
became a disordered person. She had to suffer anxiety reaction because of all the battering
that happened and so she became an abnormal person who had lost she's not during the
time and that is why it happened because of all the physical battering, emotional battering,
all the psychological abuses that she had experienced from her husband.

Q I do believe that she is a battered wife. Was she extremely battered?

A Sir, it is an extreme form of battering. Yes. 40

Parenthetically, the credibility of appellant was demonstrated as follows:

"Q And you also said that you administered [the] objective personality test, what x x x [is this]
all about?

A The objective personality test is the Millon Clinical Multiaxial Inventory. The purpose of that
test is to find out about the lying prone[ne]ss of the person.

Q What do you mean by that?

A Meaning, am I dealing with a client who is telling me the truth, or is she someone who can
exaggerate or x x x [will] tell a lie[?]

Q And what did you discover on the basis of this objective personality test?

A She was a person who passed the honesty test. Meaning she is a person that I can trust.
That the data that I'm gathering from her are the truth."41

The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on his Psychiatric
Report, which was based on his interview and examination of Marivic Genosa. The Report said that
42 

during the first three years of her marriage to Ben, everything looked good -- the atmosphere was
fine, normal and happy -- until "Ben started to be attracted to other girls and was also enticed in[to]
gambling[,] especially cockfighting. x x x. At the same time Ben was often joining his barkada in
drinking sprees."

The drinking sprees of Ben greatly changed the attitude he showed toward his family, particularly to
his wife. The Report continued: "At first, it was verbal and emotional abuses but as time passed, he
became physically abusive. Marivic claimed that the viciousness of her husband was progressive
every time he got drunk. It was a painful ordeal Marivic had to anticipate whenever she suspected
that her husband went for a drinking [spree]. They had been married for twelve years[;] and
practically more than eight years, she was battered and maltreated relentlessly and mercilessly by
her husband whenever he was drunk."

Marivic sought the help of her mother-in-law, but her efforts were in vain. Further quoting from the
Report, "[s]he also sought the advice and help of close relatives and well-meaning friends in spite of
her feeling ashamed of what was happening to her. But incessant battering became more and more
frequent and more severe. x x x." 43
From the totality of evidence presented, there is indeed no doubt in the Court's mind that Appellant
Marivic Genosa was a severely abused person.

Effect of Battery on Appellant

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

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

The theory of BWS formulated by Lenore Walker, as well as her research on domestic violence, has
had a significant impact in the United States and the United Kingdom on the treatment and
prosecution of cases, in which a battered woman is charged with the killing of her violent partner.
The psychologist explains that the cyclical nature of the violence inflicted upon the battered woman
immobilizes the latter's "ability to act decisively in her own interests, making her feel trapped in the
relationship with no means of escape." In her years of research, Dr. Walker found that "the abuse
46 

often escalates at the point of separation and battered women are in greater danger of dying then." 47

Corroborating these research findings, Dra. Dayan said that "the battered woman usually has a very
low opinion of herself. She has x x x self-defeating and self-sacrificing characteristics. x x x [W]hen
the violence would happen, they usually think that they provoke[d] it, that they were the one[s] who
precipitated the violence[; that] they provoke[d] their spouse to be physically, verbally and even
sexually abusive to them." 48

According to Dra. Dayan, there are a lot of reasons why a battered woman does not readily leave an
abusive partner -- poverty, self-blame and guilt arising from the latter's belief that she provoked the
violence, that she has an obligation to keep the family intact at all cost for the sake of their children,
and that she is the only hope for her spouse to change. 49

The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had previously testified in
suits involving violent family relations, having evaluated "probably ten to twenty thousand" violent
family disputes within the Armed Forces of the Philippines, wherein such cases abounded. As a
result of his experience with domestic violence cases, he became a consultant of the Battered
Woman Office in Quezon City. As such, he got involved in about forty (40) cases of severe domestic
violence, in which the physical abuse on the woman would sometimes even lead to her loss of
consciousness. 50

Dr. Pajarillo explained that "overwhelming brutality, trauma" could result in posttraumatic stress
disorder, a form of "anxiety neurosis or neurologic anxietism." After being repeatedly and severely
51 
abused, battered persons "may believe that they are essentially helpless, lacking power to change
their situation. x x x [A]cute battering incidents can have the effect of stimulating the development of
coping responses to the trauma at the expense of the victim's ability to muster an active response to
try to escape further trauma. Furthermore, x x x the victim ceases to believe that anything she can
do will have a predictable positive effect."
52

A study conducted by Martin Seligman, a psychologist at the University of Pennsylvania, found that
53 

"even if a person has control over a situation, but believes that she does not, she will be more likely
to respond to that situation with coping responses rather than trying to escape." He said that it was
the cognitive aspect -- the individual's thoughts -- that proved all-important. He referred to this
phenomenon as "learned helplessness." "[T]he truth or facts of a situation turn out to be less
important than the individual's set of beliefs or perceptions concerning the situation. Battered women
don't attempt to leave the battering situation, even when it may seem to outsiders that escape is
possible, because they cannot predict their own safety; they believe that nothing they or anyone else
does will alter their terrible circumstances." 54

Thus, just as the battered woman believes that she is somehow responsible for the violent behavior
of her partner, she also believes that he is capable of killing her, and that there is no
escape. Battered women feel unsafe, suffer from pervasive anxiety, and usually fail to leave the
55 

relationship. Unless a shelter is available, she stays with her husband, not only because she
56 

typically lacks a means of self-support, but also because she fears that if she leaves she would be
found and hurt even more. 57

In the instant case, we meticulously scoured the records for specific evidence establishing that
appellant, due to the repeated abuse she had suffered from her spouse over a long period of time,
became afflicted with the battered woman syndrome. We, however, failed to find sufficient evidence
that would support such a conclusion. More specifically, we failed to find ample evidence that would
confirm the presence of the essential characteristics of BWS.

The defense fell short of proving all three phases of the "cycle of violence" supposedly
characterizing the relationship of Ben and Marivic Genosa. No doubt there were acute battering
incidents. In relating to the court a quo how the fatal incident that led to the death of Ben started,
Marivic perfectly described the tension-building phase of the cycle. She was able to explain in
adequate detail the typical characteristics of this stage. However, that single incident does not prove
the existence of the syndrome. In other words, she failed to prove that in at least another battering
episode in the past, she had gone through a similar pattern.

How did the tension between the partners usually arise or build up prior to acute battering? How did
Marivic normally respond to Ben's relatively minor abuses? What means did she employ to try to
prevent the situation from developing into the next (more violent) stage?

Neither did appellant proffer sufficient evidence in regard to the third phase of the cycle. She simply
mentioned that she would usually run away to her mother's or father's house; that Ben would seek
58 

her out, ask for her forgiveness and promise to change; and that believing his words, she would
return to their common abode.

Did she ever feel that she provoked the violent incidents between her and her spouse? Did she
believe that she was the only hope for Ben to reform? And that she was the sole support of his
emotional stability and well-being? Conversely, how dependent was she on him? Did she feel
helpless and trapped in their relationship? Did both of them regard death as preferable to
separation?
In sum, the defense failed to elicit from appellant herself her factual experiences and thoughts that
would clearly and fully demonstrate the essential characteristics of the syndrome.

The Court appreciates the ratiocinations given by the expert witnesses for the defense. Indeed, they
were able to explain fully, albeit merely theoretically and scientifically, how the personality of the
battered woman usually evolved or deteriorated as a result of repeated and severe beatings inflicted
upon her by her partner or spouse. They corroborated each other's testimonies, which were culled
from their numerous studies of hundreds of actual cases. However, they failed to present in court the
factual experiences and thoughts that appellant had related to them -- if at all -- based on which they
concluded that she had BWS.

We emphasize that in criminal cases, all the elements of a modifying circumstance must be proven
in order to be appreciated. To repeat, the records lack supporting evidence that would establish all
the essentials of the battered woman syndrome as manifested specifically in the case of the
Genosas.

BWS as Self-Defense

In any event, the existence of the syndrome in a relationship does not in itself establish the legal
right of the woman to kill her abusive partner. Evidence must still be considered in the context of
self-defense. 59

From the expert opinions discussed earlier, the Court reckons further that crucial to the BWS
defense is the state of mind of the battered woman at the time of the offense -- she must have
60 

actually feared imminent harm from her batterer and honestly believed in the need to kill him in order
to save her life.

Settled in our jurisprudence, however, is the rule that the one who resorts to self-defense must face
a real threat on one's life; and the peril sought to be avoided must be imminent and actual, not
merely imaginary. Thus, the Revised Penal Code provides the following requisites and effect of self-
61 

defense: 62

"Art. 11. Justifying circumstances. -- The following do not incur any criminal liability:

"1. Anyone who acts in defense of his person or rights, provided that the following
circumstances concur;

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself."

Unlawful aggression is the most essential element of self-defense. It presupposes actual, sudden
63 

and unexpected attack -- or an imminent danger thereof -- on the life or safety of a person. In the
64 

present case, however, according to the testimony of Marivic herself, there was a sufficient time
interval between the unlawful aggression of Ben and her fatal attack upon him. She had already
been able to withdraw from his violent behavior and escape to their children's bedroom. During that
time, he apparently ceased his attack and went to bed. The reality or even the imminence of the
danger he posed had ended altogether. He was no longer in a position that presented an actual
threat on her life or safety.
Had Ben still been awaiting Marivic when she came out of their children's bedroom -- and based on
past violent incidents, there was a great probability that he would still have pursued her and inflicted
graver harm -- then, the imminence of the real threat upon her life would not have ceased yet.
Where the brutalized person is already suffering from BWS, further evidence of actual physical
assault at the time of the killing is not required. Incidents of domestic battery usually have a
predictable pattern. To require the battered person to await an obvious, deadly attack before she can
defend her life "would amount to sentencing her to 'murder by installment.'" Still, impending danger
65 

(based on the conduct of the victim in previous battering episodes) prior to the defendant's use of
deadly force must be shown. Threatening behavior or communication can satisfy the required
imminence of danger. Considering such circumstances and the existence of BWS, self-defense may
66 

be appreciated.

We reiterate the principle that aggression, if not continuous, does not warrant self-defense. In the
67 

absence of such aggression, there can be no self-defense -- complete or incomplete -- on the part of
the victim. Thus, Marivic's killing of Ben was not completely justified under the circumstances.
68 

Mitigating Circumstances Present

In any event, all is not lost for appellant. While she did not raise any other modifying circumstances
that would alter her penalty, we deem it proper to evaluate and appreciate in her favor
circumstances that mitigate her criminal liability. It is a hornbook doctrine that an appeal in a criminal
case opens it wholly for review on any issue, including that which has not been raised by the
parties.
69

From several psychological tests she had administered to Marivic, Dra. Dayan, in her Psychological
Evaluation Report dated November 29, 2000, opined as follows:

"This is a classic case of a Battered Woman Syndrome. The repeated battering Marivic
experienced with her husband constitutes a form of [cumulative] provocation which broke
down her psychological resistance and natural self-control. It is very clear that she developed
heightened sensitivity to sight of impending danger her husband posed continuously. Marivic
truly experienced at the hands of her abuser husband a state of psychological paralysis
which can only be ended by an act of violence on her part."  70

Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect of "repetitious pain
taking, repetitious battering, [and] repetitious maltreatment" as well as the severity and the prolonged
administration of the battering is posttraumatic stress disorder. Expounding thereon, he said:
71 

"Q What causes the trauma, Mr. Witness?

A What causes the trauma is probably the repetitious battering. Second, the severity of the
battering. Third, the prolonged administration of battering or the prolonged commission of the
battering and the psychological and constitutional stamina of the victim and another one is
the public and social support available to the victim. If nobody is interceding, the more she
will go to that disorder....

xxx   xxx   xxx

Q You referred a while ago to severity. What are the qualifications in terms of severity of the
postraumatic stress disorder, Dr. Pajarillo?
 A The severity is the most severe continuously to trig[g]er this post[t]raumatic stress disorder
is injury to the head, banging of the head like that. It is usually the very very severe stimulus
that precipitate this post[t]raumatic stress disorder. Others are suffocating the victim like
holding a pillow on the face, strangulating the individual, suffocating the individual, and
boxing the individual. In this situation therefore, the victim is heightened to painful stimulus,
like for example she is pregnant, she is very susceptible because the woman will not only
protect herself, she is also to protect the fetus. So the anxiety is heightened to the end [sic]
degree.

Q But in terms of the gravity of the disorder, Mr. Witness, how do you classify?

A We classify the disorder as [acute], or chronic or delayed or [a]typical.

Q Can you please describe this pre[-]classification you called delayed or [atypical]?

A The acute is the one that usually require only one battering and the individual will manifest
now a severe emotional instability, higher irritability remorse, restlessness, and fear and
probably in most [acute] cases the first thing will be happened to the individual will be
thinking of suicide.

Q And in chronic cases, Mr. Witness?

A The chronic cases is this repetitious battering, repetitious maltreatment, any prolonged, it
is longer than six (6) months. The [acute] is only the first day to six (6) months. After this six
(6) months you become chronic. It is stated in the book specifically that after six (6) months
is chronic. The [a]typical one is the repetitious battering but the individual who is abnormal
and then become normal. This is how you get neurosis from neurotic personality of these
cases of post[t]raumatic stress disorder."  72

Answering the questions propounded by the trial judge, the expert witness clarified further:

"Q But just the same[,] neurosis especially on battered woman syndrome x x x affects x x x
his or her mental capacity?

A Yes, your Honor.

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

A Of course obfuscated." 73

In sum, the cyclical nature and the severity of the violence inflicted upon appellant resulted in
"cumulative provocation which broke down her psychological resistance and natural self-control,"
"psychological paralysis," and "difficulty in concentrating or impairment of memory."

Based on the explanations of the expert witnesses, such manifestations were analogous to an
illness that diminished the exercise by appellant of her will power without, however, depriving her of
consciousness of her acts. There was, thus, a resulting diminution of her freedom of action,
intelligence or intent. Pursuant to paragraphs 9 and 10 of Article 13 of the Revised Penal Code, this
74  75 

circumstance should be taken in her favor and considered as a mitigating factor.  76

In addition, we also find in favor of appellant the extenuating circumstance of having acted upon an
impulse so powerful as to have naturally produced passion and obfuscation. It has been held that
this state of mind is present when a crime is committed as a result of an uncontrollable burst of
passion provoked by prior unjust or improper acts or by a legitimate stimulus so powerful as to
overcome reason. To appreciate this circumstance, the following requisites should concur: (1) there
77 

is an act, both unlawful and sufficient to produce such a condition of mind; and (2) this act is not far
removed from the commission of the crime by a considerable length of time, during which the
accused might recover her normal equanimity. 78

Here, an acute battering incident, wherein Ben Genosa was the unlawful aggressor, preceded his
being killed by Marivic. He had further threatened to kill her while dragging her by the neck towards a
cabinet in which he had kept a gun. It should also be recalled that she was eight months pregnant at
the time. The attempt on her life was likewise on that of her fetus. His abusive and violent acts, an
79 

aggression which was directed at the lives of both Marivic and her unborn child, naturally produced
passion and obfuscation overcoming her reason. Even though she was able to retreat to a separate
room, her emotional and mental state continued. According to her, she felt her blood pressure rise;
she was filled with feelings of self-pity and of fear that she and her baby were about to die. In a fit of
indignation, she pried open the cabinet drawer where Ben kept a gun, then she took the weapon and
used it to shoot him.

The confluence of these events brings us to the conclusion that there was no considerable period of
time within which Marivic could have recovered her normal equanimity. Helpful is Dr. Pajarillo's
testimony that with "neurotic anxiety" -- a psychological effect on a victim of "overwhelming brutality
80 

[or] trauma" -- the victim relives the beating or trauma as if it were real, although she is not actually
being beaten at the time. She cannot control "re-experiencing the whole thing, the most vicious and
the trauma that she suffered." She thinks "of nothing but the suffering." Such reliving which is
beyond the control of a person under similar circumstances, must have been what Marivic
experienced during the brief time interval and prevented her from recovering her normal equanimity.
Accordingly, she should further be credited with the mitigating circumstance of passion and
obfuscation.

It should be clarified that these two circumstances -- psychological paralysis as well as passion and
obfuscation -- did not arise from the same set of facts.

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

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

Second Legal Issue:

Treachery

There is treachery when one commits any of the crimes against persons by employing means,
methods or forms in the execution thereof without risk to oneself arising from the defense that the
offended party might make. In order to qualify an act as treacherous, the circumstances invoked
81 

must be proven as indubitably as the killing itself; they cannot be deduced from mere inferences, or
conjectures, which have no place in the appreciation of evidence. Because of the gravity of the
82 

resulting offense, treachery must be proved as conclusively as the killing itself.

83

Ruling that treachery was present in the instant case, the trial court imposed the penalty of death
upon appellant. It inferred this qualifying circumstances merely from the fact that the lifeless body of
Ben had been found lying in bed with an "open, depressed, circular" fracture located at the back of
his head. As to exactly how and when he had been fatally attacked, however, the prosecution failed
to establish indubitably. Only the following testimony of appellant leads us to the events surrounding
his death:

"Q You said that when Ben came back to your house, he dragged you? How did he drag
you?

COURT:

The witness demonstrated to the Court by using her right hand flexed forcibly in her
front neck)

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept on shouting at me
that 'you might as well be killed so there will be nobody to nag me'

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

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER

(At this juncture the witness started crying)

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

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

COURT INTERPRETER

(The witness at this juncture is crying intensely).

xxx   xxx   xxx

Q You said that he dropped the blade, for the record will you please describe this blade
about 3 inches long, how does it look like?

A Three (3) inches long and ½ inch wide.

Q It is a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

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

xxx   xxx   xxx

ATTY. TABUCANON:

Q You said that this blade fell from his grip, is it correct?

A Yes, because I smashed him.

Q What happened?

A Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I smashed him and I
ran to the other room.

Q What else happened?

 A When I was in the other room, I felt the same thing like what happened before when I was
admitted in PHILPHOS Clinic, I was about to vomit. I know my blood pressure was raised. I
was frightened I was about to die because of my blood pressure.

COURT INTERPRETER:

(Upon the answer of the witness getting the pipe and smashed him, the witness at
the same time pointed at the back of her neck or the nape).

ATTY. TABUCANON:

Q You said you went to the room, what else happened?

A Considering all the physical sufferings that I've been through with him, I took pity on myself
and I felt I was about to die also because of my blood pressure and the baby, so I got that
gun and I shot him.

COURT

/to Atty. Tabucanon

Q You shot him?

A Yes, I distorted the drawer." 84

The above testimony is insufficient to establish the presence of treachery. There is no showing of the
victim's position relative to appellant's at the time of the shooting. Besides, equally axiomatic is the
rule that when a killing is preceded by an argument or a quarrel, treachery cannot be appreciated as
a qualifying circumstance, because the deceased may be said to have been forewarned and to have
anticipated aggression from the assailant. 85

Moreover, in order to appreciate alevosia, the method of assault adopted by the aggressor must

have been consciously and deliberately chosen for the specific purpose of accomplishing the
unlawful act without risk from any defense that might be put up by the party attacked. There is no
86 

showing, though, that the present appellant intentionally chose a specific means of successfully
attacking her husband without any risk to herself from any retaliatory act that he might make. To the
contrary, it appears that the thought of using the gun occurred to her only at about the same moment
when she decided to kill her batterer-spouse. In the absence of any convincing proof that she
consciously and deliberately employed the method by which she committed the crime in order to
ensure its execution, this Court resolves the doubt in her favor. 87

Proper Penalty

The penalty for parricide imposed by Article 246 of the Revised Penal Code is reclusion perpetua to
death. Since two mitigating circumstances and no aggravating circumstance have been found to
have attended the commission of the offense, the penalty shall be lowered by one (1) degree,
pursuant to Article 64 of paragraph 5 of the same Code. The penalty of reclusion temporal in its
88  89 

medium period is imposable, considering that two mitigating circumstances are to be taken into
account in reducing the penalty by one degree, and no other modifying circumstances were shown
to have attended the commission of the offense. Under the Indeterminate Sentence Law, the
90 
minimum of the penalty shall be within the range of that which is next lower in degree -- prision
mayor -- and the maximum shall be within the range of the medium period of reclusion temporal.

Considering all the circumstances of the instant case, we deem it just and proper to impose the
penalty of prision mayor in its minimum period, or six (6) years and one (1) day in prison as
minimum; to reclusion temporal in its medium period, or 14 years 8 months and 1 day as maximum.
Noting that appellant has already served the minimum period, she may now apply for and be
released from detention on parole. 91

Epilogue

Being a novel concept in our jurisprudence, the battered woman syndrome was neither easy nor
simple to analyze and recognize vis-à-vis the given set of facts in the present case. The Court
agonized on how to apply the theory as a modern-day reality. It took great effort beyond the normal
manner in which decisions are made -- on the basis of existing law and jurisprudence applicable to
the proven facts. To give a just and proper resolution of the case, it endeavored to take a good look
at studies conducted here and abroad in order to understand the intricacies of the syndrome and the
distinct personality of the chronically abused person. Certainly, the Court has learned much. And
definitely, the solicitor general and appellant's counsel, Atty. Katrina Legarda, have helped it in such
learning process.

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

The Court, however, is not discounting the possibility of self-defense arising from the battered
woman syndrome. We now sum up our main points. First, each of the phases of the cycle of
violence must be proven to have characterized at least two battering episodes between the appellant
and her intimate partner. Second, the final acute battering episode preceding the killing of the
batterer must have produced in the battered person's mind an actual fear of an imminent harm from
her batterer and an honest belief that she needed to use force in order to save her life. Third, at the
time of the killing, the batterer must have posed probable -- not necessarily immediate and actual --
grave harm to the accused, based on the history of violence perpetrated by the former against the
latter. Taken altogether, these circumstances could satisfy the requisites of self-defense. Under the
existing facts of the present case, however, not all of these elements were duly established.

WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED.

However, there being two (2) mitigating circumstances and no aggravating circumstance attending
her commission of the offense, her penalty is REDUCED to six (6) years and one (1) day of prision
mayor as minimum; to 14 years, 8 months and 1 day of reclusion temporal as maximum.

Inasmuch as appellant has been detained for more than the minimum penalty hereby imposed upon
her, the director of the Bureau of Corrections may immediately RELEASE her from custody upon
due determination that she is eligible for parole, unless she is being held for some other lawful
cause. Costs de oficio.

SO ORDERED.

Puno, Carpio, Corona, Carpio-Morales, Callejo, Sr., Azcuna and Tinga, JJ., concur.
Davide, Jr., C.J., Sandoval-Gutierrez, and Austria-Martinez, JJ., join Justice Santiago in her dissent.
Vitug and Quisumbing JJ., in the result.
Ynares-Santiago J., see dissenting opinion.
 DISSENTING OPINION

YNARES-SANTIAGO, J.:

In convicting Marivic Genosa of the crime of parricide, our esteemed colleague Mr. Justice Artemio
V. Panganiban found that there was no factual basis to conclude that Marivic was suffering from
"Battered Woman Syndrome" (BWS) at the time she took the life of her husband. With due respect, I
register my dissent.

The novel theory of "Battered Woman Syndrome" is recognized in foreign jurisprudence as a form of
self-defense. It operates upon the premise that a woman who has been cyclically abused and
controlled over a period of time develops a fearful state of mind. Living in constant danger of harm or
death, she knows that future beatings are almost certain to occur and will escalate over time. Her
intimate knowledge of the violent nature of her batterer makes her alert to when a particular attack is
forthcoming, and when it will seriously threaten her survival. Trapped in a cycle of violence and
constant fear, it is not unlikely that she would succumb to her helplessness and fail to perceive
possible solutions to the problem other than to injure or kill her batterer. She is seized by fear of an
existing or impending lethal aggression and thus would have no opportunity beforehand to deliberate
on her acts and to choose a less fatal means of eliminating her sufferings. 1

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.

Contrary to the findings in the ponencia, the defense was able to establish the occurrence on more
than one occasion of the "tension-building phase" of the cycle. The various testimonies of appellant's
witnesses clearly reveal that she knew exactly when she would once again be subjected to acute
battery. Her cousin, Ecel Arano, testified that she often asked the latter to sleep in her house as she
was afraid every time her husband came home drunk. Clearly, whenever appellant requested for
Arano's company, she was experiencing a tension-building phase. The barangay captain, Panfilo
Tero, also testified that appellant sought his help two months before she killed her husband, again
demonstrating that she was in the tension-building phase and was attempting to prevent another
incident of acute battery. Appellant presented evidence to prove that the tension-building phase
would occur whenever her husband would go out looking for other women, would lose at cockfights
or would come home drunk. She often tried to ignore her husband's attitude or, as testified to by
some witnesses for the prosecution, even shouted back, fought off or even injured her husband
during the tension-building phase, if only to prevent the onset of acute battery.

Appellant was able to perfectly describe the tension-building phase of the cycle immediately prior to
the death of her husband, i.e., when she knew or felt that she was going to be killed by the
deceased. She could not possibly have testified with clarity as to prior tension-building phases in the
cycle as she had never tried to kill her husband before this time.
It was shown by the testimonies of appellant and even witnesses for the prosecution that appellant
would seek shelter in her mother's or her father's house after an acute battering incident, after which
would begin the process of begging for forgiveness, promises of change in behavior and return to
the conjugal home, only for the same cycle to begin all over again.

To require appellant to prove the state of mind of the deceased, as seems to be required in
the ponencia, would mean that no person would ever be able to prove self-defense in a battered
woman case. Appellant could not possibly prove whether the deceased felt provoked into battering
by any act or omission of appellant. She cannot possibly prove that she felt herself to be the sole
support of the deceased's emotional stability and well-being. Nevertheless, appellant felt trapped
and helpless in the relationship as, in the end, she resorted to killing her husband as no one could or
did help her, whether out of fear or insensitivity, during the violent marriage she endured.

The "acute battering incident stage" was well demonstrated by the severe beatings suffered by
Marivic in the hands of the deceased as well as the threats to kill her using a bolo or a cutter. 2 The
physical abuses occurred at least 3 times a week in the 11 miserable years of their marriage, 3 six
incidents of which were documented by the 1990-1995 medical records of Marivic. They included,
among others, hematoma, contusion, and pain on the breasts; multiple contusions and trauma on
the different parts of her body even during her pregnancy in 1995. 4 The tranquil period underwent by
Marivic was shown by the repeated "kiss and make-up" episodes of their relationship. On more than
5 occasions, Marivic ran to her parents' house after violent fights with the deceased only to forgive
the latter every time he would fetch her and promise to change. 5

All these recurring phases of cycle of violence, repentance and forgiveness developed a trauma in
the mind of Marivic making her believe that a forthcoming attack from the deceased would cause her
death. This state of mind of Marivic was revealed in her testimony given way back in 1998, before
she was examined by experts on BWS. Unaware of the significance of her declarations, she
candidly narrated how she felt immediately before she killed the deceased, thus -

ATTY. TABUCANON

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.

xxx       xxx       xxx

Q What happened when you were brought to the 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. [T]hen 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 room, and on that very moment everything on my mind was 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.
 xxx       xxx       xxx6

Q What else happened?

A When I was in the room, I felt the same thing like what happened before I was admitted in
PHILPHOS Clinic, I was about to vomit. I know my blood pressure has raised. I was
frightened I was about to die because of my blood pressure.

xxx       xxx       xxx

A Considering all the physical sufferings that I've been through 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 the gun
and shot him.7

It must be stressed that the defense of "Battered Woman Syndrome" was not raised by Marivic
before the lower court but only here on automatic review. This makes the foregoing testimony more
worthy of great weight and credence considering that the same could not have been cunningly given
to suit or conform to the profile of a battered woman.

Moreover, there was indeed basis for Marivic to fear death because of her medical history. Dr. Dino
Caing testified that he treated Marivic for hypertension due to domestically related emotional stress
on 23 separate occasions. The latest one was on November 6, 1995 when she suffered from severe
hypertension and had a blood pressure of 180/120 on the 8th month of her pregnancy.8

Furthermore, Dr. Natividad A. Dayan, a clinical psychologist and an expert on BWS who examined
Marivic, assessed the effects of the repeated violence on the latter as follows:

A What I remember ... was it was more than ten years that she was suffering from emotional
anguish. There were a lot of instance of abuses, ... emotional abuse...verbal abuse and...
physical abuse. The husband had 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 cockfighting and in going home
very angry which... triggered a lot of physical abuse. She also had the experience 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 .. .[felt] almost like living in purgatory
or even in hell when it was happening day in and day out.

xxx       xxx       xxx

Q And what was it that triggered ... that tragedy in your opinion?

A I think for several weeks, she was already having all those tensions, all those anxieties,
they were not enough, that the husband was even going to cockfighting x x x

A She was angry with him, he was angry with her and I think he dragged her and even spun
her around. She tried to fight him so there was a lot of fight and when she was able to
escape, she went to another room and she locked herself with the children. And when the
husband was for a while very angry he calms down then and then (sic). But I remember
before that the husband was looking for the gun and I think he was not able to open the
cabinet because she had the key. So during that time, I remember, that she was very much
 afraid of him, so when the husband calmed down and he was asleep, all she was concerned
was to end up her misery, to save her child which she was carrying and to save her two
children. I believe that somehow she's not rational. 9

xxx       xxx       xxx

PROS. TRUYA

Q Mrs. Witness, being an expert witness, giving more the facts and circumstances on this
case that the books you studied in the expertise in line and in the 77 hour contact with
appellant Mrs. Genosa, could you say that this is not ordinary self-defense but a survival on
her part?

A Yes, sir.

Q To what she did to her husband (sic)?

A Yes, sir this is not an ordinary self-defense, but this [is] a need to survive, a need to
survive with her two sons and [the] child she's bringing.

Q Had she not able to kill her husband, would she still be in the very short moment with the
victim (sic)?

A If she did not do that she believes that she will be the one who would be killed. 10

There is no doubt therefore that Marivic was afflicted with the "Battered Woman Syndrome" and that
it was an apprehension of death and the instinct to defend her and her unborn child's life that drove
her to kill her husband.

The ponente further refused to sustain the self-defense proffered by Marivic because there was
allegedly no aggression or danger posed on her life by the victim at the time she attacked the latter.
Again, I beg to disagree.

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-
a-vis the 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.

In the case at bar, the cycle of violence perpetrated by the deceased, which culminated in the
physical assaults and an attempt to shoot Marivic when she was 8 months pregnant, took the place
of unlawful aggression, thus entitling her to a complete self defense even if there was
no actual employment of violence by the deceased at the time of the killing. Marivic had every
reason to believe that the deceased would kill her that night not only because the latter was verbally
threatening to kill her while attempting to get a gun from the drawer, but more importantly because
the deceased wounded her on the wrist with a bolo, and because of the deceased's previous
conduct of threatening to cut her throat with a cutter which he kept in his wallet. Quoted hereunder
are the relevant testimonies of Marivic -

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

xxx       xxx       xxx

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

xxx       xxx       xxx

A He was nagging ... me at that time and I just ignore[d] him because I want to avoid trouble
for fear that he will beat me again. Perhaps he was disappointed because I just ignore[d]
hi[s] 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 g[o]t a bolo and cut the antenna wire to stop me from watching television.

xxx       xxx       xxx

A He switch[ed] off the light and the children were shouting because they were scared and
he was already holding a bolo.

Q How do you describe this bolo?

A 1 1/2 feet.

xxx       xxx       xxx

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 ran to the room.

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

A When I attempted] to run he held my hands and he whirled me and I fell [on] the bedside. 11

xxx       xxx       xxx

COURT

To the witness

xxx       xxx       xxx

Q The bolo that you said which Ben was holding at that time, [was] it a bolo or a knife?

A Bolo.
Q Were you wounded or were there inflictions on your body when he was holding and trying
to frighten you [with] that bolo?

A No, only here.

COURT INTERPRETER

(The witness pointed to her wrist).

COURT

To the witness

Q You were demonstrating a motion, whirling, did your husband really whirl you?

A Yes, your Honor.

Q How did he whirl you?

A Whirled around.

Q Just like spinning.

xxx       xxx       xxx

Q Where did he whirl you, was it inside the bedroom or outside?

A In our bedroom.

Q Then after the whirling what happened?

A He kicked my ass and then I screamed.12

xxx       xxx       xxx

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...?

A I packed all his clothes.

Q What was your reason in packing his clothes?

A I wanted him to leave us.13

A I was frightened that my husband would hurt me, so I packed all his things then on the
following day I will leave, I was afraid and I want to make sure I would deliver my baby
safely.14

xxx       xxx       xxx

A After a couple of hours, he went back again and got angry with me for packing his clothes,
then he dragged me again outside of the bedroom holding my neck.

ATTY. TABUCANON

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 backwards.

ATTY. TABUCANON

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept 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.

xxx       xxx       xxx

Q What happened when you were brought to the 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. [T]hen 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 room, and on that very moment everything on my mind was 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.

xxx       xxx       xxx

Q You said that he dropped the blade, for the record will you please

describe this blade about 3 inches long, how does it look like?

A Three (3) inches long and 1/2 inch wide.

Q Is it a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes sir, that was the object used when he intimidate me. 15

RE-DIRECT BY ATTY. TABUCANON

Q In other words, there were two (2) incidents, the first incident and then he left and then two
(2) hours after he came back?

A Yes, sir.

Q And the whirling happened in the first incident?

A Yes, sir.

Q And the dragging with arms flexed in her neck and on that blade

happened on the second incident (sic)?

A Ye, sir.

xxx       xxx       xxx

COURT

To the witness

Q Why, what is that blade about?

A A cutter about 3 inches long.

 Q Who used that?

A Ben.

Q He used that on you?

A He scared me on that (sic).

xxx       xxx       xxx

Q But he did not hit you with that?

A Yes, because I managed to run every time he scared (sic).16

There are many things which cannot be proved by direct evidence. One of this is state of mind. In
the case at bar, there is more than sufficient physical evidence presented by the appellant from
which her mental state can be inferred. The prosecution did not object to the presentation of these
physical and testimonial pieces of evidence, namely, the medical records of 23 instances of
domestic violence-related injuries and the testimonies of neighbors, cousins and even the barangay
captain. Indeed, no person would endure 23 reported instances of beatings if she were planning to
kill her spouse in the first place. The majority need not worry that women around the country will
mastermind the killings of their husbands and then use this Decision to bolster their attempts to
employ the BWS defense.

Moreover, as found in the ponencia, appellant should be allowed the mitigating circumstance of

passion and obfuscation. This, at the very least, supports a finding that the acts of violence and
battery committed by the deceased were illegal and unlawful and were committed immediately
before appellant could recover her natural equanimity. But what is the natural equanimity of a
battered woman? Appellant was not a normal married woman. She can never be in a state of natural
equanimity as she was in a constant state of alertness and hypersensitivity to the next phase of
acute battery. The esteemed ponente also correctly found that the appellant acted with diminished
will-power. However, he failed to go further. In the case of People v. Javier,17 it was held:

Since accused-appellant has already admitted to the killing, it is incumbent upon him to prove the
claimed mitigating circumstance of illness. In this case, however, aside from the testimony of the
accused that his mind went blank when he killed his wife due to loss of sleep, no medical finding was
presented regarding his mental condition at the time of the killing. This Court can hardly rely on the
bare allegations of accused-appellant, nor on mere presumptions and conjectures. No clear and
convincing evidence was shown that accused-appellant was suffering an illness which diminished
his exercise of will-power at the time of the killing.18

In the case at bar, appellant was allowed and did in fact present clear and convincing evidence that
she was a battered woman for 13-14 years and that she suffered from the "Battered Woman
Syndrome". Expert testimony was presented and admitted to this effect, such that the ponente ably
discussed the causes and effects of the syndrome. To ignore the testimony and the evidence thus
presented is to make impossible the proof of mental state. Evidence as to the mental state need not
be also "beyond reasonable doubt."

Verily, the requirement of threatening behavioral pattern of the batterer in previous violent episodes
was sufficiently satisfied in the present case. This, juxtaposed to Marivic's affliction with BWS
justified the killing of the deceased. The danger posed or created in her mind by the latter's threats
using bladed weapons, bred a state of fear, where under the circumstances, the natural response of
the battered woman would be to defend herself even at the cost of taking the life of the batterer.

The ponencia's acknowledgement of "Battered Woman Syndrome" as a valid form of self-defense, is

a noble recognition of the plight of, and a triumph for battered women who are trapped in a culture of
silence, shame, and fear. This would however be an empty victory if we deliberately close our eyes
to the antecedents of this case. The facts are simple. Marivic was suffering from the "Battered
Woman Syndrome" and was defending herself when she killed her husband. Her acquittal of the
charge of parricide is therefore in order.

IN VIEW WHEREOF, I vote to ACQUIT Marivic Genosa.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 172695              June 29, 2007

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
ISAIAS CASTILLO y COMPLETO, Appellant.

DECISION

YNARES-SANTIAGO, J.:

In an Information1 dated January 19, 1994, appellant Isaias Castillo y Completo was charged with
the crime of parricide, committed as follows:

That on or about November 5, 1993, in the Municipality of Cabuyao, Province of Laguna and within
the jurisdiction of this Honorable Court, accused Isaias Castillo y Completo, while conveniently
armed with illegally possessed sling and deadly arrow, with intent to kill his wife Consorcia Antiporta
with whom he was united in lawful wedlock did then and there wilfully, unlawfully and feloniously
shot and hit his wife Consorcia Antiporta with the aforesaid deadly arrow, hitting the latter on the
right side of her neck causing the laceration of the jugular vein which caused her instantaneous
death.

CONTRARY TO LAW.2

The case was docketed as Criminal Case No. 8590-B and raffled to Branch 24 of the Regional Trial
Court of Biñan, Laguna.

Appellant entered a plea of not guilty when arraigned on April 15, 1994. Trial thereafter ensued.

The facts as found by the trial court are as follows:

There is no dispute that the victim, Consorcia Antiporta Castillo, died violently in the evening of
November 5, 1993. The cause of her death was massive hemorrhage due to "laceration of the
jugular vein of her neck". According to Dr. Solita P. Plastina, Municipal Health Officer of Calamba,
Laguna, who conducted the autopsy on the victim’s body, the fatal weapon could have been a
"pointed instrument like a nail". There is no dispute likewise that the accused shot with a dart from a
rubber sling, his wife hitting her at the neck and causing her instantaneous death. The letters written
by the accused from his detention cell addressed to his mother-in-law, to his father-in-law, and lastly,
the victim’s sister, speak so eloquently of someone who accepts the fault for the early demise of the
victim. Asking forgiveness from the close relatives of the victim is a clear admission of authorship of
the fatal act.

In the same letters, the accused raised as an issue his lack of intent to do the fatal harm to his wife.
This is the same issue to be resolved by this Court. Whether or not the fatal injury sustained by the
victim was accidental.

xxxx

Guillermo Antiporta, father of the victim, narrated in Court that in the evening of November 5, 1993,
between 9:00 o’clock to 10:00 o’clock, the accused came home drunk and was in an angry mood.
The accused kicked the door and table, and then threw the electric fan away. He was prevailed upon
by Guillermo to take a rest. But the accused did not heed the advice of Guillermo as he took instead
his sling and arrow from the house ceiling where he was keeping them. Dejectedly, Guillermo
transferred to the adjacent house of her x x x daughter [in-law] Yolanda. From there, Guillermo
heard the victim crying and, afterwards, shouting at the accused. Guillermo concernedly ordered
Yolanda to see what was happening inside the house of Consorcia, and Yolanda obeyed. On her
way, Yolanda met the accused carrying the bloodied body of Consorcia. Guillermo, the accused, and
Yolanda brought Consorcia to the hospital but to no avail.

From all the circumstances gathered, the infliction of the fatal injury upon Consorcia was preceded
by a quarrel between her and the accused. This spat negated the accused’s version that he was
practicing the use of the weapon when Consorcia was hit by the arrow, and lends credence to the
prosecution’s contention that the shooting was intentional.

x x x To sustain the accused’s assertion that he was practicing the use of said weapon at the time of
the incident is patently absurd. The defense even failed to rebut Guillermo Antiporta’s testimony that
the accused was keeping said sling and arrow inside his house.

It might be true that the accused was one of those who rushed the victim to the hospital and while on
the way, he sounded remorseful. But Guillermo Antiporta further testified that while the victim was
being attended to by the medical personnel of said hospital, the accused stayed outside the hospital
premises, then he disappeared. He was later on apprehended by police authorities while hiding
inside the comfort room of a premises in an adjoining barangay. The accused’s omission to
surrender himself to the authorities is a clear indication of guilt. 3

After several hearings, the trial court rendered on October 5, 1998, a decision, 4 the dispositive
portion of which reads:

WHEREFORE, this Court hereby finds accused ISAIAS CASTILLO Y COMPLETO GUILTY beyond
reasonable doubt of the crime of PARRICIDE and hereby sentences him to a penalty of
RECLUSION PERPETUA and to indemnify the heirs of the victim in the sum of P50,000.00, as
moral damages.
SO ORDERED.5

Appellant filed an appeal with the Court of Appeals, alleging that the prosecution failed to sufficiently
establish his guilt beyond reasonable doubt. However, in a Decision 6 dated February 28, 2005, the
Court of Appeals denied appellant’s appeal and affirmed with modification the decision of the trial
court, to wit:

WHEREFORE, premises considered, the decision dated October 5, 1998 of the Regional Trial
Court, Branch 24 of Biñan, Laguna is hereby AFFIRMED with the modification that accused-
appellant Isaias Castillo y Completo is further ordered to indemnify the heirs of the victim the amount
of ₱50,000.00 as civil indemnity.

SO ORDERED.7

Appellant filed a motion for reconsideration but it was denied in a Resolution dated June 16, 2005.

Hence, this appeal.

Appellant alleged that the pieces of circumstantial evidence on which his conviction was based did
not sufficiently establish his guilt beyond reasonable doubt; that the prosecution failed to prove his
motive in killing his wife; or that they had a quarrel immediately prior to the incident.

Appellant likewise claimed that it was not established that he was the one who shot his wife with a
deadly arrow considering that at the time of the incident, he and his drinking buddies were all
engaged in target shooting using the sling and arrow. Hence, he surmised that any one of them
could have shot the victim. At any rate, even assuming that he was the one who killed his wife, the
same was accidental and not intentional.

Furthermore, he claimed that his presence at the crime scene did not establish his guilt beyond
reasonable doubt. His arrest while hiding inside a toilet in the adjoining barangay, while his wife was
being treated in the hospital, likewise does not prove his complicity since the prosecution did not
prove that he deliberately hid inside the toilet.

Finally, the letters he sent to his father-in-law, mother-in-law and sister-in-law where he asked for
forgiveness should not be considered as admission of guilt.

The petition lacks merit.

Direct evidence of the commission of the offense is not the only matrix wherefrom a trial court may
draw its conclusions and finding of guilt. Conviction can be had on the basis of circumstantial
evidence provided that: (1) there is more than one circumstance; (2) the facts from which the
inferences are derived are proven; and (3) the combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt. While no general rule can be laid down as to the
quantity of circumstantial evidence which will suffice in a given case, all the circumstances proved
must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at
the same time inconsistent with the hypothesis that he is innocent, and with every other rational
hypothesis except that of guilt. The circumstances proved should constitute an unbroken chain
which leads to only one fair and reasonable conclusion that the accused, to the exclusion of all
others, is the guilty person.8 Proof beyond reasonable doubt does not mean the degree of proof
excluding the possibility of error and producing absolute certainty. Only moral certainty or "that
degree of proof which produces conviction in an unprejudiced mind" is required. 9
In the instant case, all the essential requisites for circumstantial evidence to sustain a conviction, are
present. As correctly found by the Court of Appeals, the following pieces of circumstantial evidence
indubitably established that appellant was the perpetrator of the crime, to wit:

1. Consortia would often confide to her sister Leticia about the violent behavior of her (Consortia)
husband, herein accused-appellant. And even if Consortia would not tell Leticia about the beatings,
the latter would see her face with black eyes as evident proofs of maltreatment.

2. On the night of the incident, accused-appellant arrived at their house drunk and displaying violent
behavior, kicking the door and table.

3. Accused-appellant was last seen holding and practicing his sling and arrow.

4. Immediately afterwards, Consortia was heard crying and shouting.

5. Accused-appellant was thereafter seen carrying Consortia, bloodied and unconscious, to be

brought to the hospital where she later died.

6. The autopsy findings indicate that Consortia sustained a punctured wound in the neck which
fatally lacerated her jugular vein. The cause of the wound was a pointed object.

7. While detained, accused-appellant wrote letters to the parents and sister of Consortia asking for
forgiveness.

Also notable is accused-appellant’s behavior immediately after the incident. He disappeared and did
not enter the clinic where Consortia was rushed for treatment. And when Consortia’s sister later
sought police assistance in searching for accused-appellant, the latter was found by the police hiding
inside a toilet at a nearby barangay.10

There is no merit in appellant’s contention that the prosecution failed to prove motive in killing his
wife. Intent to kill and not motive is the essential element of the offense on which his conviction
rests.11 Evidence to prove intent to kill in crimes against persons may consist, inter alia, in the means
used by the malefactors, the nature, location and number of wounds sustained by the victim, the
conduct of the malefactors before, at the time, or immediately after the killing of the victim, the
circumstances under which the crime was committed and the motives of the accused. If the victim
dies as a result of a deliberate act of the malefactors, intent to kill is presumed. 12

In the instant case, the following circumstances satisfactorily established appellant’s intent to kill his
wife:

First: The killing was immediately preceded by a quarrel between the appellant and his wife. Leticia,
the victim’s sister, testified that the deceased suffered from the violent behavior of the appellant who
would often lay hand on the victim during their marital squabbles.

Guillermo, appellant’s father-in-law, testified that on the night of the incident, appellant arrived in
their conjugal abode drunk and in a foul mood. He kicked the door and table and threw away the
electric fan. Guillermo tried to prevail upon appellant but to no avail. Instead, appellant got his sling
and arrow which he kept near the ceiling.

Guillermo left appellant’s house and went to the house of his daughter-in-law, Yolanda, located
about four meters away; but he could still hear the victim and appellant arguing and shouting at each
other. After a while, Guillermo requested Yolanda to look on her sister-in-law. On her way, Yolanda
met the appellant carrying Consorcia soaked in blood.

Second: It has always been said that criminal cases are primarily about human nature. 13 In the
instant case, appellant disappeared after his wounded wife was rushed to the hospital. This is
indeed contrary to human nature. A husband is expected to lend comfort to his dying wife up to her
last breath. In this case, however, appellant took flight. It is well-established that the flight of an
accused is competent evidence to indicate his guilt, and flight, when unexplained, as in this case, is
a circumstance from which an inference of guilt may be drawn. 14

Appellant alleged that his arrest by police authorities inside a toilet at the adjoining barangay is not
an indication of guilt because the prosecution failed to prove that he deliberately hid in order to
evade being arrested.15

The contention lacks merit.

As above-discussed, it is contrary to human nature for a husband to leave his dying wife, more so if
his absence is unexplained. Appellant did not offer any explanation for his flight. In appellant’s brief,
he claimed that in "all probability, it might have happened that he (appellant) was merely answering
the call of nature at the precise time when he was arrested." 16 However, we find it is highly illogical
for appellant to go as far as the adjoining barangay to answer the call of nature especially since he
could do so inside the premises of the hospital. Moreover, the allegation that he was fearful of
reprisal coming from the victim’s relatives17 is contrary to his claim of innocence.

Third: The location of the wound and its extent likewise proved appellant’s intent to kill the victim.
The autopsy report revealed that the victim sustained a punctured wound in the neck, a vital organ,
which fatally lacerated her jugular vein causing massive hemorrhage. The extent of the physical
injury inflicted on the deceased manifests appellant’s intention to extinguish life. 18

Fourth: As regards appellant’s act of carrying the body of his wounded wife and bringing her to the
hospital, the same does not manifest innocence. It is merely an indication of an act of repentance or
contrition on the part of appellant.19

In fine, all these circumstances prove appellant’s intent to harm his wife.

There is likewise no merit in appellant’s contention that he was not the one who shot the deadly
arrow because at the time of the incident, he and his drinking buddies were all playing and practicing
target shooting with the use of the sling and arrow.

Prosecution witness Guillermo Antiporta categorically testified that appellant was alone with his wife
inside their house when the incident happened. This completely discounts the possibility that other
than appellant, there could be another person or persons who could have perpetrated the crime.
There is no paucity of evidence because the time when Guillermo left the appellant and the victim up
to the time Yolanda saw him carrying his wife, were all accounted for. Moreover, the testimony of
defense witness Galang supports the prosecution’s contention that appellant was alone with his wife
at the time of the incident. As noted by the Court of Appeals:

Defense witness, Jose Nelson Galang, testified that he left his drinking buddies and headed home at
about 9:00 p.m., as in fact he was already in bed at about 10:00 p.m. when he saw that Consortia
was being rushed to the hospital. Instead of weakening the evidence for the prosecution, Galang’s
testimony even supports the prosecution’s version that between 9:00 p.m. and 10:00 p.m. of that
fateful night, accused-appellant arrived at their house drunk, presumably going home from that
drinking session with his friends. x x x20

There is likewise no merit in appellant’s contention that assuming he was the one who killed his wife,
the same was accidental and not intentional. The exempting circumstance of accident is not
applicable in the instant case. Article 12, par. 4 of the Revised Penal Code, provides:

ART. 12. Circumstances which exempt from criminal liability. – The following are exempt from
criminal liability:

xxxx

4. Any person who, while performing a lawful act with due care, causes an injury by mere accident
without fault or intention of causing it.

"Accident" is an affirmative defense which the accused is burdened to prove, with clear and
convincing evidence.21 The defense miserably failed to discharge its burden of proof. The essential
requisites for this exempting circumstance, are:

1. A person is performing a lawful act;

2. With due care;

3. He causes an injury to another by mere accident;

4. Without fault or intention of causing it.22

By no stretch of imagination could playing with or using a deadly sling and arrow be considered as
performing a "lawful act." Thus, on this ground alone, appellant’s defense of accident must be struck
down because he was performing an unlawful act during the incident. As correctly found by the trial
court:

Furthermore, mere possession of sling and arrow is punishable under the law. In penalizing the act,
the legislator took into consideration that the deadly weapon was used for no legal purpose, but to
inflict injury, mostly fatal, upon other persons. Let it be stressed that this crude weapon can not attain
the standards as an instrument for archery competitions. To sustain the accused’s assertion that he
was practicing the use of said weapon at the time of the incident is patently absurd. The defense
even failed to rebut Guillermo Antiporta’s testimony that the accused was keeping said sling and
arrow inside his house.23

Furthermore, by claiming that the killing was by accident, appellant has the burden of proof of
establishing the presence of any circumstance which may relieve him of responsibility, and to prove
justification he must rely on the strength of his own evidence and not on the weakness of the
prosecution, for even if this be weak, it can not be disbelieved after the accused has admitted the
killing.24 Other than his claim that the killing was accidental, appellant failed to adduce any evidence
to prove the same.

Likewise, we cannot lend credence to appellant’s contention that the letters he wrote to his parents-
in-law and sister-in-law, where he asked for forgiveness, should not be considered as an implied
admission of guilt. He claimed that he wrote the letters in order to explain that what happened was
an accident and that he was to be blamed for it because he allowed his drinking buddies to play with
the sling and arrow.

Settled is the rule that in criminal cases, except those involving quasi-offenses or those allowed by
law to be settled through mutual concessions, an offer of compromise by the accused may be
received in evidence as an implied admission of guilt. Evidently, no one would ask for forgiveness
unless he had committed some wrong and a plea for forgiveness may be considered as analogous
to an attempt to compromise.25 Under the present circumstances, appellant’s plea for forgiveness
should be received as an implied admission of guilt. Besides, contrary to appellant’s assertion, the
killing of Consorcia was deliberate, and not by accident.

Finally, we find no cogent reason to review much less depart now from the findings of the lower court
as affirmed by the Court of Appeals. When the trial court’s factual findings have been affirmed by the
appellate court, said findings are generally conclusive and binding upon this Court, for it is not our
function to analyze and weigh the parties’ evidence all over again except when there is serious
ground to believe a possible miscarriage of justice would thereby result. Our task in an appeal via
certiorari is limited, as a jurisdictional matter, to reviewing errors of law that might have been
committed by the Court of Appeals. 26

Parricide under Article 246 of the Revised Penal Code is punishable by reclusion perpetua to death.
The trial court and the Court of Appeals correctly imposed the penalty of reclusion perpetua.
Likewise, civil indemnity in the amount of ₱50,000.00 and moral damages in the amount of
₱50,000.00 were properly awarded by the courts below.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated February 28,
2005 which affirmed with modification the judgment of the Regional Trial Court of Biñan, Laguna,
Branch 24, finding appellant Isaias Castillo y Completo guilty of parricide and sentencing him to
suffer the penalty of reclusion perpetua and ordering him to pay the heirs of his victim ₱50,000.00 as
moral damages and ₱50,000.00 as civil indemnity, is AFFIRMED.

With costs.

SO ORDERED.

MODULE 4

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-45284 December 29, 1936

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
FRANCISCO DE LA CRUZ, ET AL., defendants.
FRANCISCO DE LA CRUZ, appellant.

Marciano Sayoc for appellant.

Undersecretary of Justice Melencio for appellee.

AVANCEÑA, C.J.:

This case was prosecuted upon the following information:

That on or about the 30th day of May, 1936, in the City of Manila, Philippine Islands, the said
accused Francisco de la Cruz, Fernando Legaspi and three other persons whose identities are still
unknown, confederating together and helping one another, did then and there willfully, unlawfully
and feloniously, and with intent of gain, attack, assault and use personal violence upon one Yu Wan,
by then and there giving him blows with his fist on the face and other parts of the body, thereby
inflicting upon him physical injuries which have required and will require medical attendance for a
period of more than one but less than nine days and have prevented and will prevent the said Yu
Wan from engaging in his customary labor for the same period of time; and afterwards took, stole
and carried away with him without the consent of the owner thereof the following personal property,
to wit:

Twenty-six (P26) pesos in cash, consisting of different denominations ................ P26.00

belonging to said Yu Wan, to the damage and prejudice of the said owner in the said sum of P26,
Philippine currency.

That the said accused Francisco de la Cruz is a habitual delinquent under the provisions of
the Revised Penal Code, he having been previously convicted once of the crime of theft and
twice of the crime of estafa, by virtue of final judgments rendered by competent courts,
having been last convicted on July 24, 1933.

Upon arraignment, the accused pleaded not guilty.

During the trial and after two witnesses for the prosecution had testified, the accused withdrew their
plea of not guilty, substituting it by that of guilty. The court sentenced Francisco de la Cruz to six
months and one day of prision correccional and, considering him a habitual delinquent, sentenced
him furthermore to the additional penalty of six years and one day of prision mayor. The other
accused Fernando Legaspi was sentenced to ten months of prision correccional. Francisco de la
Cruz appealed for this sentence.

The facts charged constitute the crime of robbery defined in article 294 of the Revised Penal Code
and punished by the penalty of prision correccional to prision mayor in its medium period.

The allegations of the information with respect to the appellant Francisco de la Cruz are not
sufficient to consider him a habitual delinquent (People vs. Venus, p. 435, ante). However, the facts
alleged in this respect constitute the aggravating circumstance of recidivism. lawphi1.net
On the other hand, the appellant's plea of guilty does not constitute a mitigating circumstance under
article 13, subsection 7, of the Revised Penal Code, which requires that this plea be spontaneous
and that it be made prior to the presentation of evidence by the prosecution. The confession of guilt,
although subsequent to the consummation of the crime and entirely alien to its development,
constitutes a cause for the mitigation of the penalty, not because it is a circumstance modifying
criminal responsibility already incurred and in the evolution of which it has not intervened absolutely,
but because, as an act of repentance and respect for the law, it indicates a moral disposition in the
accused favorable to his reform. It is clear that these benefits are not deserved by the accused who
submits to the law only after the presentation of some evidence for the prosecution, believing that in
the end the trial will result in his conviction by virtue thereof.

Wherefore, eliminating the additional penalty by reason of habitual delinquency, considering the
presence of an aggravating circumstance in the commission of the crime without any mitigating
circumstance, and applying the Indeterminate Sentence Law, the appellant is sentenced to the
penalty of from six months of arresto mayor, as minimum, to six years, ten months and one day
of prision mayor, as maximum, affirming the appealed sentence in all other respects, with the costs.
So ordered.

Villa-Real, Abad Santos, Imperial, Diaz, Laurel, and Concepcion, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-30449 October 31, 1979

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANTONIO GARCIA Y CABARSE alias "TONY MANOK" and REYNALDO ARVISO V
REBELLEZA alias "RENE BISUGO," defendants-appellants.

Wenceslao B. Trinidad for appellants.

Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V. Bautista and Solicitor Adolfo
J. Diaz for appellee.

ABAD SANTOS, J.:

This is an appeal from the decision of April 17, 1969 by the Circuit Criminal Court at Pasig, Rizal,
which found the accused guilty of murder and sentenced them to the death penalty.

The legal verdict hinges on the testimony of the lone eyewitness for the prosecution, Mrs. Corazon
Dioquino Paterno, sister of the deceased, Apolonio Dioquino, Jr. She testified that at the time of the
incident, she resided at Ventanilla Street, Pasay City. She lived at Pasay City for about five months
before moving to another dwelling at Timog Avenue, Quezon City. While residing at Pasay City, she
conceived a child and during this period, it was not unusual for her, accompanied by her husband, to
step out of the house in the wee hours of the morning. They set out on these irregular walks about
five times.

During her residence at Pasay City, her brother Apolonio visited her family for about twenty times.
Sometimes her brother would stay instead at their parents' house at Muntinlupa, Rizal. He usually
spent his weekends in his residence at Bo. Balubad, Porac, Pampanga. Apolonio and her husband
were very close to each other; whenever Apolonio paid them a visit, he usually slept in the house
and sought their help on various problems.

Before the incident which gave rise to this case, Corazon's husband informed her that he saw
Apolonio engaged in a drinking spree with his gang in front of an establishment known as Bill's Place
at M. de la Cruz Street. Pasay City. In her sworn statement before the Pasay City Police executed
on November 3, 1968, Corazon surmised that her husband must have been painting the town red
("nag good time") in that same place. Upon learning this information from her husband, Corazon
obtained permission to leave the house at 3:00 a.m. so she could fetch her brother. At that time, she
had not been aware that Apolonio was in Pasay City; she had been of the belief that he was with his
family in Pampanga. She went to fetch him because she wanted him to escape the untoward
influence of his gang. In explaining the rationale for her noctural mission, she employed in her sworn
statement the following language: "Dahil itong si Junior ay meron na kaming nabalitaan na naaakay
ng barkada niya sa paggawa ng hindi mabuti."

On her way, as she rounded the corner of P.C. Santos Street, Corazon saw her brother fleeing a
group of about seven persons, including the two accused, Antonio Garcia and Reynaldo Arviso. She
recognized the two accused because they were former gangmates of her brother; in fact, she knew
them before the incident by their aliases of "Tony Manok" and "Rene Bisugo, " respectively.

Corazon saw that the chase was led by the two accused, with Antonio carrying a long sharp
instrument. Later, in the course of giving her sworn statement before the Pasay City Police on ,
November 3, 1968, Corazon positively Identified Antonio and Reynaldo, who were then at the office
of the General Investigation Section, Secret Service Division, Pasay City Police Department. She
also stated that if she saw the other members of the group again, perhaps she could likewise Identify
them. At the trial, Corazon likewise pointed out the two accused. During the incident, she exerted
efforts to Identify the other group members, taking care to conceal herself as she did so. She heard
a gunshot which caused her to seek cover.

When she ventured to look from where she was hiding, about 20 meters away, she saw the group
catch up with her brother and maltreat him. Some beat him with pieces of wood, others boxed him.
Immediately afterwards, the group scampered away in different directions. Antonio was left behind.
He was sitting astride the prostrate figure of Apolonio, stabbing the latter in the back with his long
knife. Corazon was not able to observe where Antonio later fled, for she could hardly bear to witness
the scene.

When Corazon mustered the courage to approach her brother, she saw that he was bathed in a pool
of his own blood. The incident threw her in a state of nervous confusion, and she resolved to report
the incident to her younger sister, who lived at Lakandula Street, Pasay City. Her sister in turn
decided to break the news to their father at Muntinlupa.

Subsequently, Corazon learned that the police authorities were searching for her brother's
gangmates for having killed him. She also learned that the suspects were in hiding. On the same
day — October 19, 1968 — accompanied by her family, she went at 2:00 p.m. to the Police
Department to inquire about her brother's corpse. They were directed to the Funeraria Popular,
where an autopsy was held. Sometime later, on November 1, 1968, she transferred residence to
Quezon City.

Dr. Mariano Cueva, Jr. testified that he conducted a post-mortem examination on the cadaver of the
decedent Apolonio, and that he prepared the corresponding Necropsy Report. Dr. Cueva found that
the deceased suffered 22 stab wounds in the different portions of his hips; in the front portion of the
chest and neck; in the back portion of the torso; and in the right hand. He testified that the wounds
sustained by the deceased brought about a massive hemorrhage which caused death. He also
testified that it is possible that the instrument marked as Exhibit "B" could have been used in
inflicting the multiple stab wounds sustained by the deceased, except the stab wounds on the neck.

Both the accused took refuge in the defense of alibi. Antonio Garcia claimed that at that time of the
incident — starting with the chase and ending with the victim's death — in the morning of October
19, 1968, he was at a place called Pacita's Canteen which adjoins Bill's Place at M, de la Cruz
Street. Reynaldo Arviso claimed that in the evening of the preceding night (October 18, 1968) he
went on a drinking spree with his friends at Pacita's Canteen. He went home at 10:30 p.m. and slept
up to 7:00 a.m. of October 19, 1968. From 7:00 a.m. of that day, he performed his duties as a bus
conductor by calling for passengers near Pacita's Canteen.

The trial court pinpointed the issue as revolving around the Identity of the persons who participated
in the killing of the deceased. it banked on the testimony of the witness, Corazon Dioquino, who
positively Identified the accused as participants in the attack. Noting that "the defense did not even
attempt to present any evil motive on the part of the witness," the court concluded that "the two
accused took part in the perpetuation of the crime charged." It gave short shrift to the defense of alibi
presented by the two accused, noting that, by their own admission, the two accused were residents
of the vicinity of the crime.

In respect of the circumstances attending the crime it said:

But considering the aggravating circumstances of nighttime; superior strength; and

treachery, which three aggravating circumstances had been sufficiently established
by the prosecution, the same cannot be offset by said voluntary surrender to a
person in authority of his agent, plus the uncontested fact that deceased, Apolonio
Dioquino, Jr. suffered no less than 22 stab wounds, convincing evidence of the
apparent criminal perversity of the accused, the court, therefore, has no alternative
but to impose the supreme penalty.

And rendered judgment as follows:

IN VIEW OF THE FOREGOING, the Court finds the accused, Antonio Garcia v
Cabarse and Reynaldo Arviso y Rebelleza, GUILTY, beyond reasonable doubt, of
the crime of Murder under Article 248, of the Revised Penal Code, as charged under
Article 248, of the Revised Penal Code, as charged in the information, and
considering the aggravating circumstances surrounding the commission of the crime,
each one of them is hereby sentenced to suffer the penalty of DEATH.

The two accused are further ordered to indemnify, the heirs of the deceased,
Apolonio Dioquino, Jr. in the amount of TWELVE 'THOUSAND (P12,000,00)
PESOS, jointly and severally and to pay their proportionate share of the costs.

In their Brief, the accused contended that the lower court erred: in not considering nighttime and
superior strength as absorbed in treachery: in finding nighttime as an aggravating circumstance
despite absolute absence of evidence that nighttime was purposely sought to insure the execution of
the crime; in finding superior strength as an aggravating circumstance despite absence of evidence
to sustain such a finding; in finding treachery as an aggravating circumstance despite absence of
evidence to that effect; in not stating the qualifying circumstance of the alleged crime; in holding that
the accused Reynaldo Arviso stabbed and hit the victim when there is no evidence as to the
participation of the said accused Arviso in the execution of the alleged crime; and in failing to
consider the material inconsistencies, prejudice and other circumstances in the uncorroborated
testimony of the only eyewitness, rendering said testimony not worthy of belief.

The assignment of errors by the accused is anchored on their attempt to discredit the lone
eyewitness for the prosecution, a function which, if successfully undertaken, would totally obliterate
the nexus between the accused and the crime. The defense vigorously maintained that the
testimony of the only eyewitness is a fabrication, and that she was in fact absent from the scene
which she described in both her sworn statement and in her testimony at the trial.

The defense asserted that Corazon Dioquino's testimony was riddled by material inconsistencies.
The defense sought to capitalize on the discrepancy of a sketch made by Corazon and the sketch
made by Pasay City Electrical Engineer Jaime Arriola. Corazon's sketch shows Juan Sumulong
Elementary School to be right in front of P.C. Santos Street; while Arriola's sketch shows that the
school is about 135 meters from the corner of the street. The defense contended that the
discrepancy was a deliberate falsehood on the part of the witness,

Corazon testified that she was near the corner of P.C. Santos Street when she saw her brother
under chase in front of the school, and that she met the group in front of the school in a matter of five
seconds, more or less. The defense assailed her testimony on this point as incredible on the ground
that the distance between the point where she saw her brother being chased, up to the point where
she met them, is 135 meters, and no human being can cover that distance in five seconds.
Moreover, Corazon testified that she was 20 meters away from the place where the accused caught
up with her brother. Again, the defense criticized her testimony in this respect by pointing out that the
true distance is 175 meters.

The defense insisted that Corazon's sketch of the locale of the crime (Exhibit "1") constitutes "the
high point of falsity of her testimony." The defense sought to substantiate this claim by arguing that
from her sketch, it appears that she never crossed paths with her brother or his pursuers. The
witness testified that she saw her brother at the point which is four to five meters from the corner of
P.C. Santos Street. Yet she also testified that she saw the incident from 20 meters. The witness
claimed she hid after hearing the shot at a point which is 170 meters from the scene of the crime.
The defense argued that she could not have covered the distance in such a short time, and that this
belies her claim that she was only 20 meters from the scene of the crime. The defense pointed out
that Arriola's sketch (Exhibit "2") shows that the school is 135 meters from the scene of the crime,
and the point where the witness claimed she viewed the crime is 170 meters from the scene of the
crime thus giving the lie to her claim that she was 20 meters away.

The alleged inconsistencies in Corazon's testimony — which the defense makes much of — are not
irreconcilable with the physical facts, At the outset, it should not be overlooked that Corazon was
testifying as an eyewitness to the traumatic incident by which her brother met a violent death at the
hands of a mob. Naturally, Corazon can not be expected to deliver a testimony which passes
microscopic scrutiny and scrupulous armchair analysis of the facts, conducted under circumstances
far removed from the turbulence and emotional color of the event as it actually transpired. Al
contrario, if Corazon's testimony were meticulously accurate with respect to distance covered and
the time taken to negotiate it, an impartial observer would wonder whether such exactitude were not
the product of previous rehearsal, if not of fabrication. In times of stress, the human mind is
frequently overpowered by the ebb and flow of emotions in turmoil; and it is only judicious to take
into consideration the natural manifestations of human conduct, when the physical senses are
subdued by the psychological state of the individual.

Corazon was a resident of Pasay City for only about five months. She testified that she is not familiar
with the streets along M. de la Cruz Street. Moreover, Corazon did not categorically testify that she
covered the distance of 135 meters in five seconds. Mole accurately, she testified that she walked
for a period of from five to ten seconds, more or less. Put in this way, the period was sufficient to
allow her to negotiate the distance. Moreover, Corazon did not stay rooted to one spot while the
incident was taking place, but surreptitiously edged her way up to Magtibay Street, which is closer to
the place of the killing.

The defense also claims that the delay which Corazon allowed to transpire, before reporting the
crime to the authorities and giving her sworn statement (on November 3, 1968), is indicative of
fabrication. The killing took place before dawn of October 19, 1968, In the afternoon of the same
day, Corazon and her family went to the Police Department to inquire about the remains of her
brother. Corazon already knew that the police were taking steps to round up the killers. She incurred
no fault in waiting until the culprits were arrested before confronting them and giving her statement. It
would have been the better part of legal procedure if she had given her statement earlier; but since
she was only a 22-year old housekeeper at that tune, she can not be held to a higher standard of
discretion.

The defense further contends that the failure to present Corazon's husband in court indicates that
Corazon was not actually at the scene of the crime at 3:00 o'clock in the morning. It the defense felt
that the husband had a contribution to make in the cause of truth, there was nothing which
prevented them from compelling his process by summons. This they failed to do; and their omission
should not be taken to reflect adversely on the prosecution, who evidently believed that the
husband's testimony was unnecessary,

Finally, the defense claims that it was unnatural for Corazon, after viewing her brother's body, to
proceed to her sister's house one kilometer away, instead of returning to her own house, which was
just a block or so away. It is not unnatural for a witness to a gruesome event, to choose to confer
with a person bound to her by ties of consanguinity, even if such a conference necessitates that she
traverse a longer distance. The exercise of judgment, on the spot, should not be gauged by reason
applied in hindsight with a metrical yard stick.

The next major burden which the defense undertook to assume was to contend that the accused
Reynaldo Arviso is innocent because there is no evidence as to his participation in the execution of
the crime. It is claimed that there is absolute absence of evidence to show that Reynaldo was a
direct participant and that the only evidence against him is that he was seen pursuing the victim.
However, the finding of Reynaldo's guilt stems, not from his direct participation in the criminal
execution, but from his participation in the conspiracy to kill the deceased. His participation in the
conspiracy is supported by Corazon's testimony that he and Antonio were the leaders of the pack
following closely at the heels of the victim.

It is well established that conspiracy may be inferred from the acts of the accused themselves, when
such acts point to a joint purpose and design. A concerted assault upon the victim by the defendants
may indicate conspiracy. (PP v. Monroy & Idica, L-11177, Oct. 30, 1958, 104 Phil. 759). Conspiracy
exists if, at the time of the commission of the offense, the defendants had the same criminal purpose
and were united in its execution. (PP v. Datu Dima Binahasing, L-4837, April 28, 1956, 98 Phil. 902).
Those who are members of the band of malefactors by which a murder is committed and are present
at the time and place of the commission of the crime, thus contributing by their presence to augment
the power of the band and to aid in the successful realization of the crime, are guilty as principals
even if they took no part in the material act of killing the deceased. (US v. Abelinde, No. 945, Dec.
10, 1902, 1 Phil. 568; People v. Carunungan, L-13283, Sept. 30, 1960, 109 Phil. 534). To establish
conspiracy, it is not essential that there be proof as to previous agreement to commit a crime. It is
sufficient that the malefactors have acted in concert, pursuant to the same objective. (PP vs. San
Luis, L-2365, May 29, 1950, 86 Phil. 485).

Conspiracy need not be established by direct evidence of acts charged, but may and generally must
be proven by a number of indefinite acts, conditions and circumstances which vary according to the
purpose to be accomplished. If it be proved that two or more persons aimed by their acts towards
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 concurrence of sentiment, a conspiracy maybe inferred though no actual meeting among them
to concert is proven (PP v. Colman L-6652-54, Feb. 28, 1958, 103 Phil. 6). A conspiracy may be
entered into after the commencement of overt acts leading to the consummation of the crime. (PP v.
Barredo, L-2728, Dec. 29, 1950, 87 Phil. 800). Conspiracy implies concert of design and not
participation in every detail of execution (PP v. Carbonel, L-24177, March 15, 1926, 48 Phil. 868; PP
v. Danan, L-1766, March 31, 1949, 83 Phil. 252).

When a group of seven men, more or less, give chase to a single unarmed individual running for his
life, and they overtake him and inflict wounds on his body by means of shooting, stabbing, and
hitting with pieces of wood, there is conspiracy to kill; and it does not detract from their status as
conspirators that there is no evidence of previous agreement, it being sufficient that their wills have
concurred and they labored to achieve the same end.

The defense submits that the failure of the lower court to specify the qualifying circumstance in the
crime of murder is violative of the Constitution and the Rules of Court. We find no such infirmity.
Since the principle concerned is "readily understood from the facts, the conclusion and the penalty
posed., an express specification of the statute or exposition of the law is not necessary." (People vs.
Silo, L-7916, May 25, 1956, 99 Phil. 216). In the absence of a specification by the trial court, the
defense surmised that the qualifying circumstance in this case is evident premeditation: but the
defense argued that evident premeditation was not shown. We agree. Under normal conditions,
conspiracy generally presupposes premeditation. But in the case of implied conspiracy, evident
premeditation may not be appreciated, in the absence of proof as to how and when the plan to kill
the victim was hatched or what time elapsed before it was carried out, so that it can not be
determined if the accused had "sufficient time between its inception and its fulfillment
dispassionately to consider and accept the consequences." There should be a showing that the
accused had the opportunity for reflection and persisted in executing his criminal design. (PP v.
Custodia, L-7442, October 24,1955, 97 Phil. 698; PP v. Mendoza and Sinu-ag, L-4146 and L-4147,
March 28, 1952, 91 Phil. 58; PP v. Yturiaga, L-2816, May 31, 1950, 86 Phil. 534; PP v. Lozada, No.
46998, Nov. 16, 1940, 70 Phil. 525; PP v. Upao Moro, L-6771, May 28, 1957, Phil. 101 Phil. 1226;
PP v. Sakam, No. 41566, Dec. 7, 1934, 61 Phil. 27: PP v. Peralta, L-19069, Oct. 29, 1968, 25 SCRA
759; PP v. Pareja, L-21937, Nov. 29, 1969, 30 SCRA 693).

Even in the absence of evident premeditation, the crime of murder in this case might still be qualified
by treachery, which is alleged in the information. But the defense argued that treachery was not
present. We are so convinced. It is an elementary axiom that treachery can in no way be presumed
but must be fully proven. (US v. Asilo, No. 1957, Jan. 30, 1905, 4 Phil, 175; US v. Arciga, No. 1129,
April 6, 1903, 2 Phil. 110; PP v. Durante, No. 31101, Aug. 23, 1929, 53 Phil. 363; PP v. Pelago, L-
24884, Aug. 31, 1968, 24 SCRA 1027), Where the manner of the attack was not proven, the
defendant should be given the benefit of the doubt, and the crime should be considered homicide
only. (Carpio, 83 Phil. 509; Amansec, So Phil, 424).
In People vs. Metran (L-4205, July 27, 1951, 89 Phil. 543). the aggravating circumstances of aid of
armed men, abuse of superiority, and nocturnity, were considered as constituting treachery, which
qualified the crime as murder, since there was no direct evidence as to the manner of the attack.
However, in this case we believe that the correct qualifying circumstance is not treachery, but abuse
of superiority. Here we are confronted with a helpless victim killed by assailants superior to him in
arms and in numbers. But the attack was not sudden nor unexpected, and the element of surprise
was lacking. The victim could have made a defense; hence, the assault involved some risk to the
assailants. There being no showing when the intent to kill was formed, it can not be said that
treachery has been proven. We believe the correct rule is found in People vs. Proceso Bustos (No.
17763, July 23, 1923, 45 Phil. 9), where alevosia was not appreciated because it was deemed
included in abuse of superiority.

We find that abuse of superiority attended the offense, following a long line of cases which made this
finding on parallel facts Our jurisprudence is exemplified by the holding that where four persons
attacked an unarmed victim but there was no proof as to how the attack commenced and treachery
was not proven, the fact that there were four assailants would constitute abuse of superiority.
(People vs. Lasada, No. 6742, Jan. 26, 1912, 21 Phil. 287; US v. Banagale, No. 7870, Jan. 10,
1913, 24 Phil. 69). However, the information does not allege the qualifying circumstance of abuse of
superiority; hence, this circumstance can only be Created as generic aggravating. (People v. Acusar,
L-1798, Dee. 29, 1948, 82 Phil. 490; People v. Beje, L-8245, July 19, 1956, 99 Phil. 1052; People v.
Bautista, L-23303, May 20, 1969, 28 SCRA 184).

The offense took place at 3:00 o'clock in the morning. It may therefore be said that it was committed
at night, which covers the period from sunset to sunrise, according to the New Civil Code, Article 13.
Is this basis for finding that nocturnity is aggravating? The Revised Penal Code, Article 14, provides
that it is an aggravating circumstance when the crime is committed in the nighttime, whenever
nocturnity may facilitate the commission of the offense. There are two tests for nocturnity as an
aggravating circumstance: the objective test, under which nocturnity is aggravating because it
facilitates the commission of the offense; and the subjective test, under which nocturnity is
aggravating because it was purposely sought by the offender. These two tests should be applied in
the alternative.

In this case, the subjective test is not passed because there is no showing that the accused
purposely sought the cover of night time. Next, we proceed and apply the objective test, to
determine whether nocturnity facilitated the killing of the victim. A group of men were engaged in a
drinking spree, in the course of which one of them fled, chased by seven others. The criminal assault
on the victim at 3:00 a.m. was invited by nocturnal cover, which handicapped the view of
eyewitnesses and encouraged impunity by persuading the malefactors that it would be difficult to
determine their Identity because of the darkness and the relative scarcity of people in the streets.
There circumstances combine to pass the objective test, and e find that nocturnity is aggravating
because it facilitated the commission of the offense. Nocturnity enticed those with the lust to kill to
follow their impulses with the false courage born out of the belief that they could not be readily
Identified.

The information alleges that the crime of murder was attended by the two qualifying circumstances
of treachery and evident premeditation. Neither of these qualifying circumstances was proved;
hence, the killing can not be qualified into murder, and constitutes instead the crime of homicide,
which is punished by reclusion temporal. It is not controverted that the accused voluntarily
surrendered to the authorities; they are therefore entitled to the mitigating circumstance of voluntary
surrender. This lone mitigating circumstance offset by the two generic aggravating circumstances of
abuse of superiority and nocturnity, produces the result that in the crime of homicide, one
aggravating circumstance remains.
WHEREFORE, the judgment of the court a quo is hereby modified in that the two accused, Antonio
Garcia y Cabarse and Reynaldo Arviso y Rebelleza, are sentenced to undergo an indeterminate
imprisonment of 10 years as minimum to 18 years as maximum, but in all other respects affirmed.

SO ORDERED.

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. Niño, Poblacion, Bustos, Bulacan, accused-
appellants.

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 Decision1 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:

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 driver's 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 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 latter's 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.

Contrary to law.11

On the strength of a warrant of arrest, the police officers arrested Victor in Laoang, Northern Samar
and had him incarcerated in the Bulacan Provincial Jail. Assisted by Atty. Ramiro Osorio, their
counsel de parte, Juan and Victor were duly arraigned and entered their plea of not guilty to the
charge. Trial thereafter ensued. After the prosecution had rested its case on August 26, 1998, Juan
escaped from the provincial jail.12 The trial court issued a bench warrant on September 22, 1998 for
the arrest of said accused-appellant.13 In the meantime, Victor adduced his evidence.

Victor denied the charge and interposed the defense of alibi. He testified 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 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., Victor was
at the town fiesta in Laoang. Victor and his friends, Joseph 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 barangay captain and attended the public dance at the town auditorium. Victor and his friends
left the auditorium at 5:30 a.m. of September 27, 1996. Victor likewise testified that he never met
Juan until his arrest and detention at the Bulacan Provincial Jail. One of the inmates in said
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 the latter's tire.

On January 14, 1999, Juan was rearrested in Daet, Camarines Norte. 14 However, he no longer
adduced any evidence in his behalf.

The Verdict of the Trial Court

On March 11, 1999, the trial court rendered its Decision judgment finding Juan and Victor guilty
beyond reasonable doubt of the crime charged, meted on each of them the penalty of death and
ordered them to pay P300,000.00 as actual and moral damages to the heirs of the victim and to pay
the Five Star Bus Company the amount of P6,000.00 as actual damages. The decretal portion of the
decision reads:

WHEREFORE, this Court finds both accused, Juan Gonzales Escote, Jr. and Victor Acuyan
GUILTY beyond reasonable doubt of Robbery with Homicide as penalized under Art. 294 of
the Revised Penal Code as amended and hereby sentences both to suffer the supreme
penalty of Death and to indemnify the heirs of the late SPO1 Jose C. Manio, Jr., the amount
of P300,000.00 as actual and moral damages and to pay the Five Star Bus P6,000.00 as
actual damage.

SO ORDERED.15

Assignment of Errors

Juan and Victor assail the Decision of the trial court and contend that:

THE TRIAL COURT ERRED IN HOLDING THAT RODOLFO CACATIAN AND ROMULO DIGAP,
DRIVER AND CONDUCTOR OF THE FIVE STAR BUS, RESPECTIVELY, WERE ABLE TO
POSITIVELY IDENTIFY THE TWO (2) MEN WHO HELD-UP THEIR BUS AND KILLED ONE
PASSENGER THEREOF AT AROUND 3:00 O'CLOCK IN THE EARLY MORNING OF
SEPTEMBER 28, 1996.

II

THE TRIAL COURT ERRED IN FINDING THE TWO (2) ACCUSED GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME OF ROBBERY WITH HOMICIDE. 16

The Court's Verdict

Anent the first assignment of error, Juan and Victor contend that the trial court committed a
reversible error in relying on the testimony of Rodolfo, the bus conductor, for convicting them of the
crime charged. They 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 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 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:

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 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. 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 conductor's 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 driver's 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.
 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?

A         None, 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?

A         Yes, sir.

Q         And the speed of above 70 kilometers per hour your total attention is focus in front of
the road, correct, Mr. witness?

A         Once in a while the driver look at the side mirror and the rear view mirror, sir.

Q         Before the announcement there was no reason for you to look at any at the rear
mirror, correct, Mr. witness?
Court:

Every now and then they usually look at the side mirror and on the rear, that was his
statement.

Atty. Osorio:

(to the witness)

Q         I am asking him if there was no reason for him....

Fiscal:

Before the announcement of hold-up, there was no mention.

Court:

Every now and then.

Atty. Osorio:

(to the witness)

Q         When you said every now and then, how often is it, Mr. witness?

A         I cannot tell how often but I used to look at the mirror once in a while, sir.

Q         How many mirror do you have, Mr. witness?

A         Four (4), sir.

Q         Where are these located?

A         Two (2) on the side mirror, center mirror and rear view mirror, sir.

Q         The two side mirror protruding outside the bus?

A         Yes, sir, they are in the side of the bus, sir.

Q         One of them is located on the left and the other on the right, correct?

A         Yes, sir.

Q         You only look at the side mirror when you are going to over take, Mr. witness?

A         No, sir.

Q         Where is this center mirror located, Mr. witness?

A         In the center, sir.

Q         What is the purpose of that?

A         So that I can see the passengers if they are already settled so that I can start the
engine, sir.

Q         What about the remaining mirror?

A         Rear view mirror, sir.

Q         What is the purpose and where is it located?

A         The rear view is located just above my head just to check the passengers, sir.

Q         So that the center mirror and the rear view mirror has the same purpose?

A         They are different, sir.

Q         How do you differentiate of (sic) one from the other?

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         If you are going to look at any of your side mirrors, you will never see any
passengers, correct, Mr. witness?

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.

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         That's 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.

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, 5'4" o 5'5" 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:

Q         Fiscal:

(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, ma'am.

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 ma'am, 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), ma'am.

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 card43 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 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).

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 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).

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 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 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.

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 years54 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. Balagtas64 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 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 riña 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 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. xxx71

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, compañero 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 engaño 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 ú ocasión 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 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. Catubig78 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 = gross monthly income x 12 months
Income
= 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 = Life expectancy x [Gross Annual Income-Living
Capacity expenses]
= 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, J., I join J. Vitug's separate opinion.
Sandoval-Gutierrez, JJ., join J. Vitug's separate opinion.

Separate Opinion

VITUG, J.:

Should an attendant aggravating circumstance of treachery, exclusive to crimes against persons, be

appreciated in the special complex crime of robbery with homicide which Article 294 of the Revised
Penal Code categorizes as a crime against property? I humbly submit that it should not be
appreciated.

A brief background. At past midnight on 28 September 1996, a Five Star passenger bus with plate
No. ABS-793, bound for Bolinao from Manila, stopped at the Balintawak junction to pick up some
passengers. Six passengers, among them victor Acuyan and Juan Gonzales Escote, boarded the
bus. Escote seated himself on the third seat near the aisle while Acuyan took the mid-portion of the
vehicle beside the bus conductor.

Along the highway in Plaridel, Bulacan, passengers Escote and Acuyan suddenly stood up, took
their positions and declared a holdup. Escote fired his gun upwards, jolting to consciousness the
sleepy and dozing passengers. The duo promptly divested the passengers of their valuables. The
bus conductor, Romulo Digap, was dispossessed of the fares he earlier collected from the
passengers. When the two repaired to the rear end of the bus, they came upon SPO1 Jose C.
Manio, a passenger on his way to Angeles City. The felons demanded that Manio show them his
identification card and wallet. Manio took out his identification card and his service gun. At this point,
the duo told the hapless law officer: "Pasensya ka na pare, papatayin ka namin, baril mo rin ang
papatay sa iyo." Ignoring his pleas for mercy, the robbers mercilessly and repeatedly shot Manio to
death. The two then proceeded to the driver's seat. Rodolfo Caciatan, the driver, overheard one of
the felons boast: "Ganyan lang ang pumatay ng tao. Parang pumapatay ng manok." The other said:
"Ayos na naman tayo pare. Malaki-laki ito." After warning Caciatan not to report the incident to the
authorities, the two alighted at an overpass in Mexico, Pampanga. The bus driver and the bus
conductor reported the incident to the police authorities in Dau, Mabalacat, Pampanga. The lifeless
body of SPO1 Manio, Jr., was brought to a nearby funeral parlor where Dr. Alejandro D. Tolentino
performed an autopsy.

Less than a month later, on 25 October 1996, about midnight, SPO3 Romeo Meneses, the team
leader of Alert Team No. 1 of the Tarlac Police Station, and SPO3 Florante S. Ferrer were at a
checkpoint along the Tarlac national highway. The police officers were diverting the traffic flow to the
Sta. Rosa Road because of the temporary closure of the Bambang-Concepcion bridge to motorists.
Meneses stopped the driver of a white-colored taxicab without any plate number. The driver turned
out to be Juan Gonzales Escote, Jr. Escote introduced himself to be a police officer. When asked to
present his identification card, Escote at once produced the card issued to and in the name of SPO1
Manio. Meneses became suspicious after noticing that the card had already expired. When asked to
produce a new pay slip, Escote was not able to show any. Amidst intensive probing, Escote finally
confessed that he was not a policeman. Meneses forthwith brought Escote to the police station
where five live bullets of a 9-millimeter firearm were confiscated from him. Escote owned
responsibility for the highway robbery committed aboard the Five Star passenger bus and for the
death of SPO1 Manio, Jr. Escote was turned over to the custody of the Plaridel Police Station where
the bus conductor, Romulo Digap, later identified Escote as having been one of the two robbers. A
further investigation on the case led to the arrest of Victor Acuyan in Laoang, Northern Samar.

On 04 April 1997, an Information for robbery with homicide was filed before the Regional Trial Court
of Bulacan against Juan Gonzales Escote and Victor O. Acuyan. When arraigned, Escote and
Acuyan entered a plea of not guilty. The trial ensued. After the prosecution had rested its case,
Escote escaped from the provincial jail. Only Acuyan was able to adduce evidence in his defense.
Acuyan denied the charge and interposed the defense of alibi. At the time of the robbery, he
claimed, he was in Laoang, Samar, for the town fiesta and had a drinking spree with friends, after
which they attended a public dance that lasted until dawn of the next day. He denied having met
Juan Escote before. On 14 January 1999, Juan Escote was re-arrested in Daet, Camarines Norte,
but he chose not to adduce any evidence in his behalf.

The trial court found Juan Escote and Victor Acuyan guilty beyond reasonable doubt of the crime of
robbery with homicide and meted upon each of them the penalty of death. In imposing the penalty of
death upon appellants, the trial court considered treachery as an aggravating circumstance as to
justify its imposition of the maximum penalty of death. The ponencia, while finding that treachery
could not be appreciated for not having been aptly alleged in the information, expressed in an obiter,
however, that had it been otherwise, i.e., that had treachery been properly alleged, this circumstance
could have aggravated the crime.

It is on the last pronouncement that I beg to differ.

Unlike ordinary complex crimes, robbery with homicide, defined by Article 294 of the Revised Penal
Code, is a special complex crime against property, explicitly carrying a corresponding penalty
of reclusion perpetua to death.

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 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 therefore. Article 294 is explicit, and it provides-

"Art. 294. 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 the 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."

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.1 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.

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. 2 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.

If a circumstance, peculiar to only one of the composite crimes, could at all be allowed to aggravate
the penalty in robbery with homicide, it should be with respect to the main offense of robbery, the
intent to gain being the moving force that impels the malefactor to commit the crime. The attendant
offense of homicide cannot be further modified, "homicide" this time being so understood, as it
should be, in its generic sense, comprehending even murder or parricide, when committed "by
reason or on the occasion of the robbery." The generic character of "homicide" in this special
complex crime, has been exemplified, for instance, in People vs. Mangulabnan,3 where the court has
held that, "[i]n 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 and it is immaterial that the
death would supervene by mere accident 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."4

If the term "homicide" were not to be understood in its generic sense, an aggravating circumstance,
such as evident premeditation or treachery, would qualify the killing into murder. Two separate
crimes of robbery and homicide inevitably would result that effectively would place the two felonies
outside the coverage of Article 294. And, as to whether or not those crimes should be complexed
with each other would depend on the attendance of the requisites enumerated in Article 48 for
ordinary complex crimes, i.e., a) that a single act constitute two or more grave or less grave felonies
or, b) that an offense is a necessary means for committing the other.

It is on the foregoing predicate, I am convinced, that this Court in People vs. Timple5 has rejected the
idea of appreciating treachery as being an aggravating circumstance in the crime of robbery with
homicide, an offense, I might repeat, is by law classified as a crime against property. I certainly will
not view the ruling as having been made in any cavalier fashion and with little or no effort for an
introspective ratiocination. Timple has, in fact, been stressed in People vs. Arizobal;6 viz:

"But treachery was incorrectly considered by the trial court. The accused stand charged with,
tried and convicted of robbery with homicide. This special complex crime is primarily
classified in this jurisdiction as a crime against property, and not against persons, homicide
being merely an incident of robbery with the latter being the main purpose and object of the
criminals. As such, treachery cannot be validly appreciated as an aggravating circumstance
under Art. 14 of The Revised Penal Code. (People v. Bariquit, G.R. No. 122733, 2 October
2000, 341 SCRA 600.) This is completely a reversal of the previous jurisprudence on the
matter decided in a litany of cases before People v. Bariquit."7