14 G.R. No. 123819            November 14, 2001
Both accused-appellant and Elsa
PEOPLE OF THE PHILIPPINES, vs.
STEPHEN MARK WHISENHUNT
YNARES-SANTIAGO, J.:
This is a direct appeal from the decision 1 of the Regional Trial Court of
Pasig City, Branch 152, in Criminal Case No. 102687, the dispositive
portion of which states:
WHEREFORE, finding the accused Stephen Mark Whisenhunt guilty
beyond reasonable doubt of murder defined and penalized under Art.
2222248, Revised Penal Code, he is hereby sentenced to suffer the
penalty of reclusion perpetua, with the accessory penalties provided for
by law, to pay the heirs of the deceased the amount of P100,000.00
representing actual expenses for the funeral services and wake for 5
days, P3,000,000.00 by way of moral damages, exemplary damages in
the amount of P1,000,000.00 and attorney’s fees in the amount of
P150,000.00. SO ORDERED.2
On November 19, 1993, accused-appellant was formally charged with the
murder of Elsa Santos-Castillo, under an Information which read:
That on or about September 24, 1993, in the Municipality of San Juan,
Metro Manila, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused did then and there wilfully, unlawfully
and feloniously, with intent to kill and taking advantage of superior
strength, attack, assault and use personal violence upon the person of
one Elsa "Elsie" Santos Castillo by then and there stabbing her with a
bladed weapon in different parts of her body, thereby inflicting upon her
mortal wounds which were the direct and immediate cause of her
death and thereafter outraged or scoffed her corpse by then and there
chopping off her head and different parts of her body.
The case was filed with the Regional Trial Court of Pasig City and was
raffled to Branch 152. On January 6, 1994, accused-appellant was
arraigned with the assistance of counsel de parte. He entered a plea of not
guilty.4
The evidence shows that accused-appellant and the deceased, Elsa
Santos-Castillo, also known as Elsie, were lovers. They met at the Apex
Motor Corporation where accused-appellant was the Manager while Elsa
was the Assistant Personnel Manager.
were married, but they were estranged from their respective spouses. In
April 1993, Elsa resigned from Apex presumably to avoid the nasty rumors
about her illicit affair with accused-appellant.5 It appears, however, that she
continued her affair with accused-appellant even after she resigned from
Apex Motor Corporation.
On September 23, 1993, Demetrio Ravelo, an Apex employee assigned to
drive for accused-appellant, reported for work at 8:30 a.m. at the latter’s
condominium unit at the Platinum Condominium, Annapolis Street,
Greenhills, San Juan, Metro Manila. 6 Accused-appellant ordered him to
fetch Elsa at her parents’ house in Blumentritt, Manila at 10:30 a.m. He
found Elsa standing at a corner near her parent’s house, wearing a violet-
colored blouse with floral prints, and was carrying three bags --- a paper
bag, a violet Giordano bag and a thick brown leather bag with the
trademark of "Mitsubishi." He brought Elsa to accused-appellant’s
condominium unit.7
At 2:00 p.m., Elsa told Demetrio to go to the Apex office in Mandaluyong to
deliver a paper bag to Amy Serrano, the Personnel Manager. He
proceeded to the Apex office, and then returned to Platinum. Accused-
appellant asked him to stay because he had to drive Elsa home at 10:00
p.m. He waited until a little past 10:00 p.m. When he had not heard from
accused-appellant, he told Lucy, the housemaid, that he was going home. 8
The following day, Demetrio again reported at accused-appellant’s unit. At
around noon, Lucy asked if he had seen a kitchen knife which was
missing. He then overheard Lucy ask accused-appellant who told her that
the kitchen knife was in his bedroom. Demetrio saw accused-appellant go
inside the room and, shortly thereafter, hand the knife to Lucy.9
At 3:40 p.m., Lucy told Demetrio to buy cigarettes for accused-appellant.
He went out to buy the cigarettes and gave them to Lucy. At 5:00 p.m.,
accused-appellant told Demetrio to go home.10
On September 25, 1993, Demetrio reported at the Platinum Condominium
at around 8:00 a.m. He was allowed by accused-appellant to go to Apex to
follow up his salary. While he was there, Amy Serrano asked him if Elsa
was still in accused-appellant’s condominium unit. Although Demetrio did
not see Elsa there, he answered yes. Amy gave him black plastic garbage
bags which he turned over to accused-appellant upon his return to the
condominium. The latter then ordered him to drive Lucy to Cubao and to
go home to get some clothes, since they were leaving for Bagac, Bataan.
On the way to Cubao, Lucy told Demetrio that she was going home. He
dropped her off in front of the Farmer’s Market. Thereafter, he proceeded
to his house in Fairview, Quezon City, to pick up some clothes, then
returned to the condominium at around 10:00 a.m. 11
Accused-appellant asked him to check the fuel gauge of the car. He was
told to go to Apex to get a gas slip and then to gas up. At around noon, he
went back to the condominium. He had lunch outside at Goodah, then
returned to accused-appellant’s unit and stayed in the servants’ quarters. 12
While Demetrio was in the servants’ quarters watching television, accused-
appellant came in. He asked Demetrio how long he wanted to work for him.
Demetrio replied that he was willing to work for him forever, and expressed
his full trust in him. Upon hearing this, accused-appellant shed tears and
embraced Demetrio. Then accused-appellant said, "May problema ako,
Rio." Demetrio asked what it was, and accused-appellant told him that Elsa
was dead. Demetrio asked, "Bakit mo siya pinatay?"13 Accused-appellant
answered that he did not kill Elsa, rather she died of "bangungot".14
Demetrio suggested that Elsa’s body be autopsied, but accused-appellant
said that he had already beheaded her. He asked Demetrio if he wanted to
see the decapitated body, but the latter refused. The two of them went to
Shoppesville at the Greenhills Shopping Center and bought a big bag with
a zipper and rollers, colored black and gray.15 Demetrio noticed that
accused-appellant seemed nervous and his eyes were teary and
bloodshot.
When they returned to the condominium, accused-appellant asked
Demetrio to help him wrap the body in the black garbage bags. Demetrio
entered accused-appellant’s bathroom and found the dismembered hands,
feet, trunk and head of a woman. He lifted the severed head by the hair
and, when he lifted it, he saw Elsa’s face. He placed this in a black trash
bag. He helped accused-appellant place the other body parts in three
separate garbage bags. They packed all the garbage bags in the bag with
the zipper and rollers, which they had bought in Shoppesville. Then, they
brought the bag down and loaded it in the trunk of accused-appellant’s car.
After that, they boarded the car. Demetrio took the wheel and accused-
appellant sat beside him in front.16
It was almost 2:00 p.m. when Demetrio and accused-appellant left the
condominium. Accused-appellant told Demetrio to drive around Batangas
and Tagaytay City. After leaving Tagaytay, they entered the South Luzon
Expressway and headed towards Sta. Rosa, Laguna. When they were
near Puting Kahoy and Silangan, accused-appellant told Demetrio to turn
into a narrow road. Somewhere along that road, accused-appellant
ordered Demetrio to stop the car.17
Accused-appellant alighted and told Demetrio to get the bag in the trunk.
Accused-appellant took the plastic bags inside the bag and dumped them
by the roadside. Then, accused-appellant returned the empty bag in the
trunk and boarded the car. He called Demetrio and said, "Tayo na Rio,
tuloy na tayo sa Bataan." It was already 6:30 p.m.18
Demetrio drove to the Sta. Rosa exit gate, along the South Luzon
Expressway, through EDSA and towards the North Luzon Expressway.
They stopped at a gasoline station to refuel. They then took the San
Fernando, Pampanga exit, and were soon en route to the Whisenhunt
family mansion in Bagac, Bataan. 19
Before reaching Bagac, accused-appellant ordered Demetrio to stop the
car on top of a bridge. Accused-appellant told Demetrio to get off and to
throw a bag into the river. Later, they passed another bridge and accused-
appellant again told Demetrio to pull over. Accused-appellant alighted and
threw Elsa’s clothes over the bridge. On the way, Demetrio noticed that
accused-appellant took something from a bag, tore it to pieces and threw it
out of the window. When they passed Pilar, Bataan, accused-appellant
threw Elsa’s violet Giordano bag. As they reached the road boundary of
Bagac, accused-appellant wrung a short-sleeved dress with violet and
green stripes, and threw it on a grassy lot.20
It was about midnight when accused-appellant and Demetrio arrived at the
mansion. Demetrio was unable to sleep that night, as he was scared that
he might be the next victim.21
The next morning, at 11:00 a.m., accused-appellant ordered Demetrio to
clean the trunk of the car, saying, "Rio, linisan mo ang sasakyan para ang
compartment hindi babaho."22 At 1:00 p.m., accused-appellant and
Demetrio started off for Manila. As they passed a place called Kabog-
kabog, he saw accused-appellant take out an ATM card. Accused-
appellant burned the middle of the card, twisted it and threw it out of the
window. They arrived at the corner of EDSA and Quezon Avenue at 2:30
p.m. Demetrio asked accused-appellant if he can get off since he wanted
to go home to Fairview. Before Demetrio left, accused-appellant told him,
"Rio, you and your family can go on a vacation. I will give you money."
Accused-appellant then gave Demetrio P50.00 for his transportation going
to Fairview.23
When Demetrio got home, he immediately told his family what happened.
His wife told him to report the incident to Fiscal Joey Diaz. Demetrio and
his wife went to the house of Fiscal Diaz in Fairview to talk to him. 24
The following morning, September 27, 1993, Fiscal Diaz, Demetrio, his
wife and his brothers went to the Department of Justice. They were
referred to the National Bureau of Investigation, where Demetrio gave his
statement before Atty. Artemio Sacaquing, head of the Anti-Organized
Crime Division.25
Initially, Atty. Sacaguing could not believe what he heard and thought
Demetrio was exaggerating. He dispatched a team of NBI agents, headed
by Marianito Panganiban, to verify Demetrio’s report. 26 Accompanied by
Demetrio, the team proceeded to Barangay Polong, Sta. Cruz, Sta. Rosa,
Laguna. There, they found a crowd of people gathered around the
mutilated parts of a human body along the road. 27 The body parts had been
discovered by tricycle drivers. The Sta. Rosa Police, under Chief
Investigator SPO3 Alipio Quintos, was already conducting an investigation.
Agent Panganiban radioed Atty. Sacaguing in Manila that Demetrio’s
report was positive.28
The mutilated body parts were brought to the Lim de Mesa Funeral Parlor
in Sta. Rosa. Two NBI agents, together with Demetrio, went to the house
of Elsa’s family to inform them of her death. The NBI agents accompanied
Elsa’s two sisters, Amelia Villadiego and Elida Santos, to the funeral parlor,
where they identified the body parts as belonging to Elsa.
In the morning of September 28, 1993, accused-appellant was arrested by
operatives of the NBI as he drove up to his parking space at Apex Motor
Corporation.29 When Atty. Sacaguing approached and introduced himself,
accused-appellant became nervous and started to tremble. 30
Accused-appellant was brought to the NBI in his car. When he arrived
there, Atty. Sacaguing informed him that it may be necessary to impound
the car since, based on Demetrio’s statement, the same was used in the
commission of the crime. Accused-appellant asked permission to retrieve
personal belongings from the car. After getting his things from the car,
accused-appellant opened the trunk to place some items inside. When he
opened the compartment, the people around the car moved away because
of the foul stench that emanated from inside. Atty. Sacaguing inspected the
interior of the trunk and found stains on the lawanit board lying flat inside
the compartment, which he suspected to be blood. Thus, he instructed his
agents to fetch a technician from the NBI Chemistry Division to examine
the stain.31
During Atty. Sacaguing’s interview of accused-appellant, he noticed
contusions on accused-appellant’s lower lip and cheek. As standard
procedure, and in order to rule out any accusation of violence on accused-
appellant on the part of the NBI agents, Atty. Sacaguing ordered a medical
examination of accused-appellant.32
The Medico-Legal Officer found contusions on accused-appellant’s left
periumbilical region, right elbow, left and right forearms and right leg. 33
That same afternoon, before the close of office hours, accused-appellant
was brought to the Department of Justice for inquest. 34 However, accused-
appellant moved that a preliminary investigation be conducted, and signed
a waiver of the provisions of Article 125 of the Revised Penal Code.
Hence, he was detained at the NBI.35
On September 29, 1993, armed with a search warrant, 36 the NBI agents
conducted a search of the condominium unit of accused-appellant. They
recovered hair strands from underneath the rubber mat and rugs inside
accused-appellant’s bathroom. 37 In accused-appellant’s bedroom, they
found bloodstains on the bedspread and covers. They also found a pair of
Topsider shoes with bloodstains, a bottle of Vicks Formula 44 cough syrup,
and some more hair strands on the lampshade.38
Later that day, Demetrio Ravelo accompanied some NBI agents to retrace
the route he took with accused-appellant going to Bataan, with the
objective of retrieving the items thrown away by accused-appellant. They
were able to recover a violet bag, one brown sandal and a shirt with violet
and green floral prints,39 which were brought to the NBI office. Amelia
Santos Villadiego, Elsa’s sister, was summoned to identify the items. 40
In the meantime, Caroline Y. Custodio, Supervising Forensic Biologist of
the NBI, who conducted comparative examinations between the hair
specimens found in accused-appellant’s bathroom and hair samples taken
from the victim while she lay in state, found that "the questioned hair
specimen showed similarities to the hair taken from the victim." 41
Custodio further reported that the bloodstains on the bed cushion cover,
bedspread and Topsider shoes, all found inside accused-appellant’s
bedroom, gave positive results for human blood, showing reactions of
Group "B".42 The bloodstains on the plywood board taken from accused-
appellant’s vehicle were also examined and found to give positive results
for human blood showing reactions of Group "B". 43 On the other hand, the
examination of blood taken from the victim likewise showed reactions of
Group "B".44
Dr. Ronaldo B. Mendez, the Medico-Legal Officer who conducted the
autopsy, concluded that the cause of death of Elsa Santos Castillo were
stab wounds.45 Dr. Mendez found one stab wound on the right breast which
penetrated the right lung. He also found two stab wounds under the left
breast which penetrated the diaphragm and abdominal cavity, and also
penetrated the right portion of the liver.46 More particularly, the autopsy
yielded the following postmortem findings:
Body in moderately advanced stage of decomposition.
Head, decapitated, level above 4th cervical vertebra; both hands
severed cutting completely the lower ends of both radius and ulna;
both legs, disarticulated at knee joints and cut-off with both patellar
bones, missing; both feet, disarticulated at the ankle joints and cut-off;
all soft tissues of both thighs and perineum, removed, exposing
completely the femoral bones and partially the pelvic bone,
Incised wounds: 19.5 cms., left axillary area; 55.0 cms., thoraco-
abdominal area, along median line, with the abdominal incision
involving the whole thickness and the thoracic incision involving the
soft tissues and cutting the sternum from the xiphoid process up to the
level of the third cartilage; from the 3rd cartilage up to the lower border
of the neck.
Abdominal organs, removed from the abdominal cavity.
Contusions: 26.0 x 16.5 cms., face, more on the left side involving the
forehead, temporal, nasal, orbital and maxillary areas; 25.0 x 11.0
cms., deltoid area, extending down to the upper 2/3, arm, left.
Incised Wound, 3.0 cms., neck area, along anterior median line.
Hematoma, scalp, massive, temporo-parietal, left.
STAB WOUNDS:
1. 1.8 cms., elliptical, clean-cut edges, oriented obliquely with sharp
infero-lateral extremity and blunt supero-medial extremity, located at
the mammary area, right; 3.0 cms., from the anterior median line,
directed backwards, downwards and laterally, involving the soft
tissues, cutting completely the 4th cartilage, right side, into the right
thoracic cavity, penetrating the lower of the right lung with an
approximate depth 8.5 cms.
2. 0.8 cm., elliptical, clean-cut edges, oriented almost vertically, with
sharp inferior extremity and blunt superior extremity, located at the
inframammary area, left, 1.1 cms., from the anterior median line,
directed backwards, downwards and medially, involving the soft tissues
only with an approximate depth of 2.0 cms.
3. 2.0 cms., elliptical, clean-cut edges, oriented obliquely, with sharp
infero-lateral extremity and blunt supero-medial extremity, located at
the inframammary area, left, 2.2 cms., from the anterior median line,
directed backwards, downwards, and from left to right, involving the
soft tissues, into the left thoracic cavity, perforating the diaphragm, into
the abdominal cavity, penetrating the right lobe of the liver with an
approximate depth 10.0 cms.
Brain, markedly softened and reduced to grayish white, pultaceous
mass.
Other visceral organs, putrified,
Stomach is almost empty.
CAUSE OF DEATH: --- STAB WOUNDS.47
In his defense, accused-appellant alleged that he stayed home on
September 23, 1993 because he was not feeling well. He denied that he
asked Demetrio Ravelo to fetch Elsa. He refuted Demetrio’s testimony that
accused-appellant asked him to buy cigarettes, or that accused-appellant
told him to go home at 5:00 p.m.. Rather, accused-appellant maintained
that he did not see Demetrio at any time in the afternoon of September 24,
1993.48
On September 25, 1993, accused-appellant alleged that he was feeling
better, hence, told Demetrio that they were to leave for Bagac, Bataan that
afternoon. They left the condominium at about 1:00 to 1:30 p.m. and
proceeded straight to Bagac. When they arrived at Bagac, accused-
appellant went straight to the kitchen and met his mother, father, aunt and
grandmother. Demetrio got the things out of the car and then asked
accused-appellant’s permission to take the car to go to the town. 49
Accused-appellant’s mother, Mrs. Nieves Whisenhunt, testified that
accused-appellant arrived at their beach house in Bagac, Bataan on
September 25, 1993 at 5:00 p.m. At 7:00 the next morning, she saw
accused-appellant clad in beach attire. Later that day, she and her
husband had lunch at the clubhouse, which was about three to four
minutes drive from their house. When they returned home at 2:00 p.m.,
accused-appellant and his driver, Demetrio, had already left. 50 This was
corroborated by accused-appellant’s aunt, Ms. Frances Sison. 51
Accused-appellant claimed that he went jet-skiing in the morning of
September 25, 1993. He alleged that the water was choppy and caused
his jet-ski to lose control. As a result, he suffered bruises on his chest and
legs. Thereafter, he went home, cleaned up, changed clothes and rested.
Later, as he was going down the stairs, he slipped and extended his arm to
stop his fall. He had lunch with this family. At 1:30 p.m., he and Demetrio
left Bagac for Manila.52
According to accused-appellant, he first learned of Elsa’s death when he
was arrested by the NBI on September 28, 1993.53 He denied having
anything to do with her death, saying that he had no reason to kill her since
he was in love with her.54 Sometime during his relationship with Elsa, he
claimed having received in the mails two anonymous letters. The first one
reads:
Salamat sa pagpapahiram mo ng sasakyan at driver. Pero
masyado kang pakialamero, Steve. Walanghiya ka. Para kang
demonyo. Pinakialaman mo ang ‘di sa ‘yo. Lintik lang ang walang
ganti. Matitiyempuhan din kita. Putang ina mo.55
The second letter says:
Steve,
Ang kay Pedro kay Pedro. Kapag pinakialaman ay kay San Pedro
ang tungo. Mahal mo ba ang pamilya mo? Iniingatan mo ba ang
pangalan mo? Nakakasagasa ka na.56
At first, accused-appellant ignored the letters. But when he told Elsa about
them, she got very upset and worried. She said the letters came from Fred,
her estranged husband.57
Ms. Frances Sison, accused-appellant’s aunt, testified that she and her
mother visited accused-appellant at 3:00 p.m. on September 23, 1993. She
went inside the bedroom and talked to accused-appellant for about 30
minutes. While they were there, Ms. Sison testified that she did not see
anyone else in the bedroom. She also said the door of the bathroom inside
the room was open, and there was nobody inside. The next day, at 4:00
p.m., she went back to visit accused-appellant. Again, they went inside
accused-appellant’s bedroom and stayed there for one hour. The door of
the bathroom was open, and she saw that there was nobody inside. The
following morning, they passed by the condominium before proceeding to
Bagac, Bataan. They went inside accused-appellant’s bedroom and talked
to him. As in the last two occasions, Ms. Sison saw through the open door
of the bathroom that there was no one inside. 58
Theresa Whisenhunt, accused-appellant’s sister-in-law, testified that
between December 21, 1991 and January 15, 1992, and again from the
middle of April, 1992 to May 15, 1992, she slept in the bedroom
subsequently occupied by accused-appellant in the Platinum
Condominium; that she regularly has her menstruation around the end of
every month; and that her blood type is "B".59
On January 31, 1996, the trial court promulgated the appealed judgment,
convicting accused-appellant of the crime of murder, sentencing him to
suffer the penalty of reclusion perpetua, and ordering him to pay the heirs
of the deceased actual damage, moral damages, exemplary damages and
attorney’s fees.60
Accused-appellant interposed an appeal from the adverse decision of the
trial court, alleging that:
I. THE LOWER COURT ERRED IN CONVICTING ACCUSED OF THE
CRIME CHARGED;
II. THE LOWER COURT ERRED IN FINDING THAT THE PROSECUTION
WAS ABLE TO PRESENT ENOUGH CIRCUMSTANTIAL EVIDENCE TO
SUPPORT THE CONCLUSION THAT THE ACCUSED IS GUILTY OF
THE CRIME CHARGED;
III THE LOWER COURT ERRED IN REJECTING, DISREGARDING
AND/OR NOT GIVING CREDENCE TO THE DEFENSE OF THE
ACCUSED.61
Much of the evidence on accused-appellant’s complicity was elicited from
Demetrio Ravelo, the so-called "prosecution star witness." 62 On the
premise that accused-appellant’s guilt or innocence depends largely on the
weight of his testimony, this Court has carefully scrutinized and examined
his version of the events, and has found that Demetrio Ravelo’s narrative is
both convincing and consistent in all material points.
Before accused-appellant confessed to Demetrio Ravelo what had
happened to Elsa Castillo, he first asked the latter how long he was willing
to work for him, and how far his loyalty will go. This was logical if accused-
appellant wanted to ensure that Demetrio would stand by his side after
learning what he was about to reveal. More importantly, Demetrio’s
description of Elsa’s dismembered body, as he found it in accused-
appellant’s bathroom, perfectly jibed with the appearance of the mutilated
body parts, as shown in the photographs presented by the prosecution. 63
Likewise, the mutilated body parts, as well as the other items thrown by
accused-appellant along the road to Bataan, were found by the NBI agents
as Demetrio pointed, which confirms that, indeed, the latter witnessed how
accused-appellant disposed of Elsa’s body and personal belongings one
by one.
All in all, the testimony of Demetrio Ravelo bears the ring of truth and
sincerity. The records show that he did not waver even during lengthy and
rigorous cross-examination. In fact, the trial court gave full faith and credit
to his testimony, stating:
The Court had opportunity to observe the demeanor of Demetrio Ravelo
when he took the witness stand on several occasions. He was extensively
cross-examined by one of the defense counsel and he withstood the same
creditably. Demetrio Ravelo is a very credible witness and his testimony is
likewise credible.64
This Court has consistently ruled that factual findings of the trial court
deserve the highest respect. This is based on the fact that the trial judge is
in the best position to assess the credibility of the witnesses who appeared
before his sala as he had personally heard them and observed their
deportment and manner of testifying during the trial. 65 Especially, where
issues raised involve the credibility of witnesses, the trial court’s findings
thereon will not be disturbed on appeal absent any clear showing that it
overlooked, misunderstood or misapplied some facts, or circumstances of
weight or substance, which could have affected the result of the
case.66 Succinctly put, findings of fact of the trial court pertaining to the
credibility of witnesses command great weight and respect since it had the
opportunity to observe their demeanor while they testified in court. 67
Perhaps more damning to accused-appellant is the physical evidence
against him. The findings of the forensic biologist on the examination of the
hair samples and bloodstains all confirm Elsa’s death inside accused-
appellant’s bedroom. On the other hand, the autopsy report revealed that
Elsa was stabbed at least three times on the chest. This, taken together
with Demetrio’s testimony that accused-appellant kept the kitchen knife
inside his bedroom on September 24, 1993, leads to the inescapable fact
that accused-appellant stabbed Elsa inside the bedroom or bathroom.
Physical evidence is a mute but eloquent manifestation of truth, and it
ranks high in the hierarchy of our trustworthy evidence. 68 For this reason, it
is regarded as evidence of the highest order. It speaks more eloquently
than a hundred witnesses.69While it may be true that there was no
eyewitness to the death of Elsa, the confluence of the testimonial and
physical evidence against accused-appellant creates an unbroken chain of
circumstantial evidence that naturally leads to the fair and reasonable
conclusion that accused-appellant was the author of the crime, to the
exclusion of all others. Circumstantial evidence may be resorted to in
proving the identity of the accused when direct evidence is not available,
otherwise felons would go scot-free and the community would be denied
proper protection. The rules on evidence and jurisprudence sustain the
conviction of an accused through circumstantial evidence when the
following requisites concur: (1) there must be more than one circumstance;
(2) the inference must be based on proven facts; and (3) the combination
of all circumstances produces a conviction beyond doubt of the guilt of the
accused.70
In the case at bar, the following circumstances were successfully proven
by the prosecution without a shadow of doubt, to wit: that Elsa Santos
Castillo was brought to accused-appellant’s condominium unit on
September 23, 1993; that on September 24, 1993, accused-appellant’s
housemaid was looking for her kitchen knife and accused-appellant gave it
to her, saying that it was in his bedroom; that on September 25, 1993,
accused-appellant and Demetrio Ravelo collected the dismembered body
parts of Elsa from the bathroom inside accused-appellant’s bedroom; that
accused-appellant disposed of the body parts by a roadside somewhere in
San Pedro, Laguna; that accused-appellant also disposed of Elsa’s
personal belongings along the road going to Bagac, Bataan; that the
mutilated body parts of a female cadaver, which was later identified as
Elsa, were found by the police and NBI agents at the spot where Demetrio
pointed; that hair specimens found inside accused-appellant’s bathroom
and bedroom showed similarities with hair taken from Elsa’s head; and that
the bloodstains found on accused-appellant’s bedspread, covers and in the
trunk of his car, all matched Elsa’s blood type.
Accused-appellant makes capital of the fact that the Medico-Legal Officer,
Dr. Mendez, did not examine the pancreas of the deceased
notwithstanding Demetrio’s statement that, according to accused-
appellant, Elsa died of "bangungot," or hemorrhage of the pancreas.
Because of this, accused-appellant insists that the cause of death was not
adequately established. Then, he relied on the controverting testimony of
his witness, lawyer-doctor Ernesto Brion, who was himself a Medico-Legal
Officer of the NBI for several years, to the effect that the autopsy report
prepared by Dr. Mendez was unreliable and inconclusive. The trial court
noted, however, that Dr. Brion was a biased witness whose testimony
cannot be relied upon because he entered his appearance as one of the
counsel for accused-appellant and, in such capacity, extensively cross-
examined Dr. Mendez. Accused-appellant counters that there is no
prohibition against lawyers giving testimony. Moreover, the trial court’s
ruling would imply that lawyers who testify on behalf of their clients are
presumed to be lying.
By rejecting the testimony of Dr. Brion, the trial court did not mean that he
perjured himself on the witness stand. Notably, Dr. Brion was presented as
expert witness. His testimony and the questions propounded on him dealt
with his opinion on the probable cause of death of the victim. Indeed, the
presentation of expert testimony is one of the well-known exceptions to the
rule against admissibility of opinions in evidence. 71 In like manner, Dr.
Mendez was presented on the stand to give his own opinion on the same
subject. His opinion differed from that of Dr. Brion, which is not at all
unusual. What the trial court simply did was to choose which --- between
two conflicting medico-legal opinions --- was the more plausible. The trial
court correctly lent more credence to Dr. Mendez’s testimony, not only
because Dr. Brion was a biased witness, but more importantly, because it
was Dr. Mendez who conducted the autopsy and personally examined
Elsa’s corpse up close.
In any event, the foregoing does not detract from the established fact that
Elsa’s body was found mutilated inside accused-appellant’s bathroom. This
clearly indicated that it was accused-appellant who cut up Elsa’s body to
pieces. Naturally, accused-appellant would be the only suspect to her
killing. Otherwise, why else would he cut up Elsa’s body as if to conceal
the real cause of her death?
As already stated above, Demetrio’s testimony was convincing. Accused-
appellant attempts to refute Demetrio’s statements by saying that he had
repeatedly reprimanded the latter for discourteous and reckless driving,
and that he had already asked the latter to tender his resignation. Thus,
accused-appellant claims that Demetrio imputed Elsa’s death on him in
order to get back at him. This Court finds the cruel treatment by an
employer too flimsy a motive for the employee to implicate him in such a
gruesome and hideous crime. Rather than entertain an accusation of ill-
motive and bad faith on Demetrio Ravelo, this Court views his act of
promptly reporting the incident to his family and, later, to the authorities, as
a genuine desire to bring justice to the cruel and senseless slaying of Elsa
Santos Castillo, whom he knew well.
Accused-appellant also argues that his arrest was without a warrant and,
therefore, illegal. In this regard, the rule is settled that any objection
involving a warrant of arrest or procedure in the acquisition by the court of
jurisdiction over the person of an accused must be made before he enters
his plea, otherwise the objection is deemed waived. 72 In other words, it is
too late in the day for accused-appellant to raise an issue about his
warrantless arrest after he pleaded to a valid information and after a
judgment of conviction was rendered against him after a full-blown trial.
Accused-appellant presented in evidence two supposedly threatening
letters which, according to Elsa, were written by the latter’s husband. There
is nothing in these letters which will exculpate accused-appellant from
criminal liability. The threats were directed at accused-appellant, not Elsa.
The fact remains that Elsa was last seen alive in accused-appellant’s
condominium unit, and subsequently discovered dead in accused-
appellant’s bathroom. Surely, the place where her dead body was found
does not support the theory that it was Fred Castillo who was probably
responsible for her death.
We do not agree with the trial court that the prosecution sufficiently proved
the qualifying circumstance of abuse of superior strength. Abuse of
superiority is present whenever there is inequality of forces between the
victim and the aggressor, assuming a situation of superiority of strength
notoriously advantageous for the aggressor and selected or taken
advantage of by him in the commission of the crime. 73 The fact that the
victim was a woman does not, by itself, establish that accused-appellant
committed the crime with abuse of superior strength. There ought to be
enough proof of the relative strength of the aggressor and the victim. 74
Abuse of superior strength must be shown and clearly established as the
crime itself.75 In this case, nobody witnessed the actual killing. Nowhere in
Demetrio’s testimony, and it is not indicated in any of the pieces of physical
evidence, that accused-appellant deliberately took advantage of his
superior strength in overpowering Elsa. On the contrary, this Court
observed from viewing the photograph of accused-appellant 76 that he has a
rather small frame. Hence, the attendance of the qualifying circumstance of
abuse of superior strength was not adequately proved and cannot be
appreciated against accused-appellant.
However, the other circumstance of outraging and scoffing at the corpse of
the victim was correctly appreciated by the trial court. The mere
decapitation of the victim’s head constitutes outraging or scoffing at the
corpse of the victim, thus qualifying the killing to murder. 77 In this case,
accused-appellant not only beheaded Elsa. He further cut up her body like
pieces of meat. Then, he strewed the dismembered parts of her body in a
deserted road in the countryside, leaving them to rot on the ground. The
sight of Elsa’s severed body parts on the ground, vividly depicted in the
photographs offered in evidence, is both revolting and horrifying. At the
same time, the viewer cannot help but feel utter pity for the sub-human
manner of disposing of her remains.
In a case with strikingly similar facts, we ruled:
Even if treachery was not present in this case, the crime would still
be murder because of the dismemberment of the dead body. One
of the qualifying circumstances of murder under Article 248, par. 6,
of the Revised Penal Code is "outraging or scoffing at (the) person
or corpse" of the victim. There is no question that the corpse of
Billy Agotano was outraged when it was dismembered with the
cutting off of the head and limbs and the opening up of the body to
remove the intestines, lungs and liver. The killer scoffed at the
dead when the intestines were removed and hung around
Victoriano’s neck as a necklace, and the lungs and liver were
facetiously described as "pulutan."78
Hence, the trial court was correct in convicting accused-appellant of the
crime of murder, qualified by outraging and scoffing at the victim’s person
or corpse.79 This circumstance was both alleged in the information and
proved during the trial. At the time of its commission, the penalty for
murder was reclusion temporal maximum to death. 80 No aggravating or
mitigating circumstance was alleged or proved; hence, the penalty shall be
imposed in its medium period.81 Therefore, the trial court’s imposition of the
penalty of reclusion perpetua was correct, and need not be modified.
However, the damages awarded by trial court should be modified. Elida
Santos, Elsa’s sister, testified that the funeral expenses was only
P50,000.00.82 Hence, the trial court erred when it awarded the amount of
P100,000.00. Basic is the jurisprudential principle that in determining
actual damages, the court cannot rely on mere assertions, speculations,
conjectures or guesswork but must depend on competent proof and on the
best obtainable evidence of the actual amount of the loss. Actual damages
cannot be presumed but must be duly proved with reasonable certainty. 83
The award of moral damages in murder cases is justified because of the
physical suffering and mental anguish brought about by the felonious acts,
and is thus recoverable in criminal offenses resulting in death. 84 It is true
that moral damages are not intended to enrich the victim’s heirs or to
penalize the convict, but to obviate the spiritual sufferings of the
heirs.85 Considering, however, the extraordinary circumstances in the case
at bar, more particularly the unusual grief and outrage suffered by her
bereaved family as a result of the brutal and indecent mutilation and
disposal of Elsa’s body, the moral damages to be awarded to them should
be more than the normal amount dictated by jurisprudence. However, the
amount of P3,000,000.00 awarded by the trial court as moral damages is
rather excessive. The reasonable amount is P1,000,000.00 considering the
immense sorrow and shock suffered by Elsa’s heirs.
The award of attorney’s fees of P150,000.00 was duly proved, 86 and thus
should be affirmed.
Finally, the heirs of Elsa Santos Castillo should be indemnified for her
death. In murder, the civil indemnity has been fixed by jurisprudence at
P50,000.00. The grant of civil indemnity in murder requires no proof other
than the fact of death as a result of the crime and proof of accused-
appellant’s responsibility therefor.87
WHEREFORE, the decision of the Regional Trial Court of Pasig City,
Branch 152, in Criminal Case No. 102687, finding accused-appellant guilty
beyond reasonable doubt of murder, and sentencing him to suffer the
penalty of reclusion perpetua, is AFFIRMED with the following
MODIFICATIONS: Accused-appellant is ORDERED to pay the heirs of
Elsa Santos Castillo actual damages in the amount of P50,000.00; civil
indemnity in the amount of P50,000.00; moral damages in the amount of
P1,000,000.00; exemplary damages in the amount of P1,000,000.00; and
attorney’s fees in the amount of P150,000.00. Costs against accused-
appellant.
G.R. No. 132547               September 20, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-vs.
SPO1 ERNESTO ULEP, accused-appellant.
BELLOSILLO, J.:
In the aftermath of an incident where a certain Buenaventura Wapili went
1  about two (2) to three (3) meters away from them, SPO1 Ulep shot the
berserk at Mundog Subdivision, Poblacion Kidapawan, Cotabato, in the
early morning of 22 December 1995, Police Officer Ernesto Ulep was
found guilty of murder and sentenced to death by the trial court for killing
Wapili. Ulep was also ordered to indemnify the heirs of the victim in the
amount of ₱50,000.00 and to pay the costs. 2 The post mortem examination of the body conducted by Dr. Roberto A.
The evidence shows that at around two o' clock in the morning of 22
December 1995 Buenaventura Wapili was having a high fever and was
heard talking insensibly to himself in his room. His brother-in-law, Dario
Leydan, convinced him to come out of his room and talk to him, but Wapili
told Leydan that he could not really understand himself. After a while,
Wapili went back to his room and turned off the lights. Moments later, the
lights went on again and Leydan heard a disturbance inside the room, as if
Wapili was smashing the furniture. Unable to pacify Wapili, Leydan called
3  entry) with multiple powder burns around the wound and on the right
Pastor Bonid of the Alliance Church of Kidapawan to help him "pray over"
Wapili, but they could not enter the latter's room as he became wild and
violent. Suddenly, Wapili bolted out of his room naked and chased Leydan.
Thereafter, Leydan with the aid of two (2) of his neighbors attempted to tie
Wapili with a rope but was unsuccessful as Wapili was much bigger in built
and stronger than anyone of them. Wapili, who appeared to have
4  CAUSE OF DEATH - multiple gunshot wounds.
completely gone crazy, kept on running without any particular direction.
Thus, Leydan went to the house of policewoman Norma Plando, a
neighbor, and asked for assistance. As Wapili passed by the house of
Plando, he banged Plando's vehicle parked outside. Using a hand-held
radio, Plando then contacted SPO1 Ernesto Ulep, SPO1 Edilberto
Espadera and SPO2 Crispin Pillo, all members of the PNP assigned to
secure the premises of the nearby Roman Catholic Church of Kidapawan.
At around four o'clock in the morning of the same day, SPO1 Ulep together
with SPO1 Espadera and SPO2 Pillo arrived at the scene on board
an Anfra police service jeep. The three (3) police officers, all armed with M-
16 rifles, alighted from the jeep when they saw the naked Wapili
approaching them. The kind of weapon Wapili was armed with is disputed.
The police claimed that he was armed with a bolo and a rattan stool, while
Wapili's relatives and neighbors said he had no bolo, but only a rattan
stool.
SPO1 Ulep fired a warning shot in the air and told Wapili to put down his
weapons or they would shoot him. But Wapili retorted "pusila!" ("fire!") and
continued advancing towards the police officers. When Wapili was only
victim with his M-16 rifle, hitting him in various parts of his body. As the
victim slumped to the ground, SPO1 Ulep came closer and pumped
another bullet into his head and literally blew his brains out.
6
Omandac, Municipal Health Officer of Kidapawan, showed that Wapili
sustained five (5) gunshot wounds: one (1) on the right portion of the head,
one (1) on the right cheek, one (1) on the abdomen and two (2) on the right
thigh: SHEENT - gunshot wound on the right parietal area with fractures of
the right temporoparietal bones with evisceration of brain tissues, right
zygomatic bone and right mandible, lateral aspect; CHEST AND BACK -
with powder burns on the right posterior chest; ABDOMEN - gunshot
wound on the right upper quadrant measuring 0.5 cm. in diameter (point of
lumbar area (point of exit). Gunshot wound on the suprapubic area (point
of entry); EXTREMETIES - with gunshot wounds on the right thigh, upper
third, anterior aspect measuring 0.5 cm. in diameter with powder burns
(point of entry) and right buttocks measuring 0.5 cm. in diameter (point of
exit); gunshot wound on the right thigh, upper third, posterolateral aspect;
7
Dr. Omandac concluded that the shots were fired at close range, perhaps
within twenty-four (24) inches, judging from the powder burns found around
some of the wounds in the body of the victim, and that the wound in the
8 
head, which caused the victim's instantaneous death, was inflicted while
"the victim was in a lying position." 9
5 The Office of the Ombudsman for the Military filed an Information for
murder against SPO1 Ulep.  The accused pleaded not guilty to the charge
1âwphi1
on arraignment, and insisted during the trial that he acted in self-defense.
However, on 28 October 1997, the trial court rendered judgment convicting
the accused of murder and sentencing him to death -
The means employed by the accused to prevent or repel the alleged
aggression is not reasonable because the victim, Buenaventura Wapili,
was already on the ground, therefore, there was no necessity for the
accused to pump another shot on the back portion of the victim's head.
Clearly the gravity of the wounds sustained by the victim belies the
pretension of the accused that he acted in self-defense. It indicates his
determined effort to kill the victim. It is established that accused (sic) was
already in the ground that would no longer imperil the accused's life. The
most logical option open to the accused was to inflict on the victim such
injury that would prevent the victim from further harming him. The court is
not persuaded by the accused's version because if it is true that the victim
attacked him and his life was endangered - yet his two (2) companions
SPO1 Espadera and SPO2 Pillo did not do anything to help him but just
witness the incident - which is unbelievable and unnatural behavior of
police officers x x x x
WHEREFORE, prescinding from the foregoing, judgment is hereby
rendered finding the accused Ernesto Ulep guilty beyond reasonable doubt
of the crime of Murder, the accused is hereby sentenced to suffer the
extreme penalty of Death, to indemnify the heirs of Buenaventura Wapili
the amount of ₱50,000.00 without subsidiary imprisonment in case of
insolvency and to pay the costs.
Death penalty having been imposed by the trial court, the case is now
before us on automatic review. Accused-appellant prays for his acquittal
mainly on the basis of his claim that the killing of the victim was in the
course of the performance of his official duty as a police officer, and in self-
defense.
Preliminarily, having admitted the killing of Wapili, accused-appellant
assumed the burden of proving legal justification therefor. He must
establish clearly and convincingly how he acted in fulfillment of his official
duty and/or in complete self-defense, as claimed by him; otherwise, he
must suffer all the consequences of his malefaction. He has to rely on the
quantitative and qualitative strength of his own evidence, not on the
weakness of the prosecution; for even if it were weak it could not be
disbelieved after he had admitted the killing. 10
Before the justifying circumstance of fulfillment of a duty under Art. 11, par.
5, of The Revised Penal Code may be successfully invoked, the accused
must prove the presence of two (2) requisites, namely, that he acted in the
performance of a duty or in the lawful exercise of a right or an office, and
that the injury caused or the offense committed be the necessary
consequence of the due performance of duty or the lawful exercise of such
right or office. The second requisite is lacking in the instant case.
Accused-appellant and the other police officers involved originally set out
to perform a legal duty: to render police assistance, and restore peace and
order at Mundog Subdivision where the victim was then running amuck.
There were two (2) stages of the incident at Mundog Subdivision. During
the first stage, the victim threatened the safety of the police officers by
menacingly advancing towards them, notwithstanding accused-appellant's
previous warning shot and verbal admonition to the victim to lay down his
weapon or he would be shot. As a police officer, it is to be expected that
accused-appellant would stand his ground. Up to that point, his decision to
respond with a barrage of gunfire to halt the victim's further advance was
justified under the circumstances. After all, a police officer is not required to
afford the victim the opportunity to fight back. Neither is he expected -
when hard pressed and in the heat of such an encounter at close quarters
- to pause for a long moment and reflect coolly at his peril, or to wait after
each blow to determine the effects thereof.
However, while accused-appellant is to be commended for promptly
responding to the call of duty when he stopped the victim from his
potentially violent conduct and aggressive behavior, he cannot be
exonerated from overdoing his duty during the second stage of the incident
- when he fatally shot the victim in the head, perhaps in his desire to take
no chances, even after the latter slumped to the ground due to multiple
gunshot wounds sustained while charging at the police officers. Sound
discretion and restraint dictated that accused-appellant, a veteran
policeman, should have ceased firing at the victim the moment he saw the
11 
latter fall to the ground. The victim at that point no longer posed a threat
and was already incapable of mounting an aggression against the police
officers. Shooting him in the head was obviously unnecessary. As
succinctly observed by the trial court -
Once he saw the victim he fired a warning shot then shot the victim hitting
him on the different parts of the body causing him to fall to the ground and
in that position the accused shot the victim again hitting the back portion of
the victim's head causing the brain to scatter on the ground x x x x the
victim, Buenaventura Wapili, was already on the ground. Therefore, there
was no necessity for the accused to pump another shot on the back portion
of the victim's head.
It cannot therefore be said that the fatal wound in the head of the victim
was a necessary consequence of accused-appellant's due performance of
a duty or the lawful exercise of a right or office.
Likewise, the evidence at hand does not favor his claim of self-defense.
The elements in order for self-defense to be appreciated are: (a) unlawful
aggression on the part of the person injured or killed by the accused; (b)
reasonable necessity of the means employed to prevent or repel it; and, (c)
lack of sufficient provocation on the part of the person defending himself. 12
The presence of unlawful aggression is a condition sine qua non. There
can be no self-defense, complete or incomplete, unless the victim has
committed an unlawful aggression against the person defending
himself. In the present case, the records show that the victim was lying in
13 
a prone position on the ground - bleeding from the bullet wounds he
sustained, and possibly unconscious - when accused-appellant shot him in
the head. The aggression that was initially begun by the victim already
ceased when accused-appellant attacked him. From that moment, there
was no longer any danger to his life.
This Court disagrees with the conclusion of the court a quo that the killing
of Wapili by accused-appellant was attended by treachery, thus qualifying
the offense to murder. We discern nothing from the evidence that the
assault was so sudden and unexpected and that accused-appellant
deliberately adopted a mode of attack intended to insure the killing of
Wapili, without the victim having the opportunity to defend himself.
On the contrary, the victim could not have been taken by surprise as he
was given more than sufficient warning by accused-appellant before he
was shot, i.e., accused-appellant fired a warning shot in the air, and
specifically ordered him to lower his weapons or he would be shot. The
killing of Wapili was not sought on purpose. Accused-appellant went to the
scene in pursuance of his official duty as a police officer after having been
summoned for assistance. The situation that the victim, at the time
accused-appellant shot him in the head, was prostrate on the ground is of
no moment when considering the presence of treachery. The decision to
kill was made in an instant and the victim's helpless position was merely
incidental to his having been previously shot by accused-appellant in the
performance of his official duty.
There is treachery when the offender commits any of the crimes against
persons, employing means, methods, or forms in the execution thereof
which tend directly and specially to insure its execution, without risk to
himself arising from the defense which the offended party might
make. Considering the rule that treachery cannot be inferred but must be
14 
proved as fully and convincingly as the crime itself, any doubt as to its
existence must be resolved in favor of accused-appellant. Accordingly, for
failure of the prosecution to prove treachery to qualify the killing to murder,
accused-appellant may only be convicted of homicide.
Indeed, to hold him criminally liable for murder and sentence him to death
under the circumstances would certainly have the effect of demoralizing
other police officers who may be called upon to discharge official functions
under similar or identical conditions. We would then have a dispirited police
force who may be half-hearted, if not totally unwilling, to perform their
assigned duties for fear that they would suffer the same fate as that of
accused-appellant.
This brings us to the imposition of the proper penalty.
We find in favor of accused-appellant the incomplete justifying
circumstance of fulfillment of a duty or lawful exercise of a right. Under Art.
69 of The Revised Penal Code, "a penalty lower by one or two degrees
than that prescribed by law shall be imposed if the deed is not wholly
excusable by reason of the lack of some of the conditions required to
justify the same or to exempt from criminal liability in the several cases
mentioned in Arts. 11 and 12, provided that the majority of such conditions
be present. The courts shall impose the penalty in the period which may be
deemed proper, in view of the number and nature of the conditions of
exemption present or lacking."
Incomplete justification is a special or privileged mitigating circumstance,
which, not only cannot be offset by aggravating circumstances but also
reduces the penalty by one or two degrees than that prescribed by
law. Undoubtedly, the instant case would have fallen under Art. 11, par. 5
15 
of The Revised Penal Code had the two (2) conditions therefor concurred
which, to reiterate: first, that the accused acted in the performance of a
duty or the lawful exercise of a right or office; and second, that the injury or
offense committed be the necessary consequence of the due performance
of such duty or the lawful exercise of such right or office. But here, only the
first condition was fulfilled. Hence, Art. 69 is applicable, although its "that
the majority of such conditions be present," is immaterial since there are
only two (2) conditions that may be taken into account under Art. 11, par.
5. Article 69 is obviously in favor of the accused as it provides for a penalty
lower than that prescribed by law when the crime committed is not wholly
justifiable. The intention of the legislature, obviously, is to mitigate the
penalty by reason of the diminution of either freedom of action, intelligence,
or intent, or of the lesser perversity of the offender.
16
We likewise credit in favor of accused-appellant the mitigating
circumstance of voluntary surrender. The police blotter of Kidapawan
Municipal Police Station shows that immediately after killing Wapili,
accused-appellant reported to the police headquarters and voluntarily
surrendered himself. 17
Article 249 of The Revised Penal Code prescribes for the crime of
homicide the penalty of reclusion temporal, the range of which is twelve
(12) years and one (1) day to twenty (20) years. There being an incomplete
justifying circumstance of fulfillment of a duty, the penalty should be one
(1) degree lower, i.e., from reclusion temporal to prision mayor, pursuant to
Art. 69, in relation to Art. 61, par. 2, and Art. 71, of the Code, to be
imposed in its minimum period since accused-appellant voluntarily
surrendered to the authorities and there was no aggravating circumstance
to offset this mitigating circumstance. Applying the Indeterminate Sentence
Law, the maximum of the penalty shall be taken from the minimum period
of prision mayor, the range of which is six (6) years and one (1) day to
eight (8) years, while the minimum shall be taken from the penalty next
lower in degree which is prision correccional, in any of its periods, the
range of which is six (6) months and one (1) day to six (6) years.

The right to kill an offender is not absolute, and may be used only as a last
resort, and under circumstances indicating that the offender cannot
otherwise be taken without bloodshed. The law does not clothe police
officers with authority to arbitrarily judge the necessity to kill. It may be true
18 

that police officers sometimes find themselves in a dilemma when

pressured by a situation where an immediate and decisive, but legal,
action is needed. However, it must be stressed that the judgment and
discretion of police officers in the performance of their duties must be
exercised neither capriciously nor oppressively, but within reasonable
limits. In the absence of a clear and legal provision to the contrary, they
must act in conformity with the dictates of a sound discretion, and within
the spirit and purpose of the law. We cannot countenance trigger-happy
19 

law enforcement officers who indiscriminately employ force and violence

upon the persons they are apprehending. They must always bear in mind
that although they are dealing with criminal elements against whom society
must be protected, these criminals are also human beings with human
rights.

WHEREFORE, the appealed Judgment is MODIFIED. Accused-appellant

SPO1 ERNESTO ULEP is found guilty of HOMICIDE, instead of Murder,
and is sentenced to an indeterminate prison term of four (4) years, two (2)
months and ten (10) days of prision correccional medium as minimum, to
six (6) years, four (4) months and twenty (20) days of prision
mayor minimum as maximum. He is further ordered to indemnify the heirs
of Buenaventura Wapili in the amount of ₱50,000.00, and to pay the costs.
G.R. No. 184050               May 8, 2009
PEOPLE OF THE PHILIPPINES, vs.
BIENVENIDO MARA y BOLAQUEÑA alias "LOLOY," Accused-
Appellant.
VELASCO, JR., J.:
This is an appeal from the Decision dated December 19, 2007 1 in CA-G.R.
CR-H.C. No. 00163 of the Court of Appeals (CA), which affirmed the
Decision dated July 16, 20022 in Criminal Case No. 9594-99 of the
Regional Trial Court (RTC), Branch 8 in Malaybalay City.
Accused-appellant was charged in an information dated March 29, 1999,
which reads:
That on or about the 27th day of February 1999, in the evening, at CMU,
Musuan, [M]unicipality of Maramag, Province of Bukidnon, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused,
with intent to kill by means of treachery and evident premeditation with the
use of a sharp bladed instrument with which he was conveniently provided,
did then and there willfully, unlawfully and criminally attack, assault and
hack GAUDENCIO PERATER, mortally wounding the latter which injury
caused the instantaneous death of GAUDENCIO PERATER; to the
damage and prejudice of the legal heirs of GAUDENCIO PERATER in
such amount as may be allowed by law.
CONTRARY TO and in violation of Article 248 of the Revised Penal Code,
as amended by R.A. 7659.3
On July 16, 2002, the trial court found accused-appellant guilty of murder,
the dispositive portion of which reads:
WHEREFORE, in view of all the foregoing, the court finds the accused
Bienvenido Mara y [Bolaqueña] guilty beyond reasonable doubt of the
crime of murder. Accused is hereby sentenced to the penalty of reclusion
perpetua. Accused is ordered to indemnify the heirs of Gaudencio Perater
the amount of Seventy Five Thousand (P75,000.00) Pesos; and further to
pay Twenty Six Thousand and Four Hundred (P26,400.00) Pesos as
actual expenses and to pay the costs.
The accused is hereby given full credit for his preventive detention. SO
ORDERED.4
Accused-appellant filed a Notice of Appeal dated August 2, 2002, from the
aforementioned decision to this Court. The case was transferred to the CA
in a resolution dated September 20, 2004, following the ruling in People v.
Mateo.5
The CA modified the trial court’s decision, the dispositive portion of which
reads:
WHEREFORE, the appealed Decision finding appellant Bienvenido Mara y
Bolaqueña guilty of the crime of Murder, and to suffer the penalty of
Reclusion perpetua, is hereby AFFIRMED, WITH THE MODIFICATION
that appellant is directed to pay the heirs of the victim the following
amounts: P 50,000.00 as civil indemnity; P 26,400.00 as actual damages;
P 50,000.00 as moral damages, and; P 25,000.00 as exemplary damages.
SO ORDERED.6
The Facts
The facts, as found by the RTC and reaffirmed by the CA, were culled from
the testimonies of witnesses Marcelino Balos and his nephew, Ramel
Balos. Marcelina Perater, widow of Gaudencio Perater, the victim, was
presented to prove the amount of actual damages from burial expenses.
Marcelino testified that the victim and accused-appellant were among the
visitors in his house on February 27, 1999. He said they were seated at the
table, he being seated at the right side of the victim, and a certain Mario
Mara seated at the left side of the victim, when suddenly accused-
appellant hacked the victim on the right side of his neck with a bolo.
Marcelino wrested the bolo from accused-appellant and gave it to his wife.
He also testified that there were no words exchanged between accused-
appellant and the victim prior to the attack.
Ramel testified that he was in the house of his uncle on the night of
February 27, 1999 along with several other guests to celebrate his
birthday. He confirmed that Mario was seated at the left side of the victim
and his uncle at the victim’s right side. He testified that accused-appellant
had been going in and out of the house. Ramel stated that he heard a
snapping sound and when he looked, he saw accused-appellant holding a
bolo, and the sound was the hacking done by accused-appellant on the
victim’s neck. Ramel then saw his uncle take away the bolo from accused-
appellant.
In his defense, accused-appellant states that the trial court erred in
appreciating the qualifying circumstance of treachery, and reiterates that
he acted in self-defense.
As to his version of events, accused-appellant claimed he had been
drinking with Marcelino and Ramel when the victim arrived and asked
where Mario, brother of accused-appellant, was. When accused-appellant
replied that he had not yet returned from work, the victim then told him,
"This is your yard, are you going to side with your elder brother [referring to
Mario] whose teeth I have broken?" The victim then pulled a knife and
pointed to accused-appellant and his companions, saying, "Who among
you here is offended, let him stand." Ramel then punched the victim,
knocking him down. Marcelino then ran to the kitchen, telling the victim,
"So you want killing?" and got hold of a bolo. Accused-appellant then
grappled with Marcelino to prevent him from attacking the victim, and was
able to wrest the bolo away from Marcelino. Marcelino then warned
accused-appellant that the victim was about to stab him. Accused-
appellant swung the bolo towards his back, hitting the victim on his neck.
He then threw the bolo away, and embraced the victim, shouting for help.
They placed the body of the victim on a bench, and Marcelino reported the
incident to the police.
Our Ruling
As to the claim of accused-appellant that he acted in self-defense, it cannot
be appreciated. There is only his testimony that there was an attempt by
the victim to stab him, as opposed to the testimonies of the two witnesses
presented against him. The credibility of the witnesses had been weighed
by the trial court, and it found the testimonies of Marcelino and Ramel to be
more convincing. As a rule, the appellate court gives full weight and
respect to the determination by the trial court of the credibility of witnesses
since the trial court judge has the best opportunity to observe the
demeanor of the witness.7
One who admits killing or fatally injuring another in the name of self-
defense bears the burden of proving: (1) unlawful aggression on the part of
the victim; (2) reasonable necessity of the means employed to prevent or
repel it; and (3) lack of sufficient provocation on the part of the person
claiming self-defense. By invoking self defense, the burden is placed on
the accused to prove its elements clearly and convincingly. While all three
elements must concur, self-defense relies first and foremost on proof of
unlawful aggression on the part of the victim. If no unlawful aggression is
proved, no self-defense may be successfully pleaded. 8 Accused-appellant
has failed to discharge his burden of proving unlawful aggression. His
version of the events is uncorroborated, and his testimony has been found
to be less credible by the trial court. The victim was not in the process of
attacking accused-appellant from behind, but rather had been seated at a
table during a birthday celebration. Accused-appellant was the instigator,
not the victim, Gaudencio. As the element of unlawful aggression on the
part of the victim is absent, accused-appellant’s claim of self-defense must
fail.
Regarding the qualifying circumstance of treachery, accused-appellant
argues that the trial court erred in appreciating it, and that there was in fact
no treachery present in the attack.
His argument lacks merit. The essence of treachery is the sudden and
unexpected attack by the aggressors on unsuspecting victims, depriving
the latter of any real chance to defend themselves, thereby ensuring its
commission without risk to the aggressors, and without the slightest
provocation on the part of the victims.9 From the evidence gleaned by the
trial court, the facts are enough to show the treachery employed by
accused-appellant. The attack was sudden, as testified by the witnesses,
and unexpected, considering it happened at a birthday celebration, without
any warning. No provocation was proved on the part of the victim, as the
testimony of accused-appellant that the victim was about to attack him was
uncorroborated and not given weight by the trial court. Thus, the victim had
no inkling that an attack was forthcoming and had no opportunity to mount
a defense. 1avvphi1
What is decisive is that the attack was executed in a manner that the victim
was rendered defenseless and unable to retaliate. 10 At the birthday
celebration where the attack occurred, the victim’s guard would be down,
even assuming that there was bad blood between him and accused-
appellant. He would not have expected his life to be in danger in such
surroundings, and accused-appellant took advantage of this.
As treachery attended the killing of Gaudencio, the crime was correctly
found to be murder under paragraph 1 of Article 248 of the Revised Penal
Code.
The CA modified the ruling of the trial court, correctly setting the civil
indemnity at PhP 50,000, with the addition of moral and exemplary
damages. Moral damages are justified under par. 1 of Art. 2219 of the Civil
Code, which provides that moral damages may be recovered from a
criminal offense resulting in physical injuries. The addition of exemplary
damages is also justified. When a crime is committed with an aggravating
circumstance, either qualifying or generic, an award of exemplary damages
is justified under Art. 2230 of the Civil Code.11
As accused-appellant has failed to show any error in the ruling of the CA,
we must uphold its decision. WHEREFORE, we AFFIRM the CA Decision
dated December 19, 2007 in CA-G.R. CR-H.C. No. 00163. No
pronouncement as to costs.
G.R. No. 177775             October 10, 2008
PEOPLE OF THE PHILIPPINES, appellee, vs.
ISAIAS V. DIZON, appellant.
CARPIO MORALES, J.:
By Decision of October 31, 20061, the Court of Appeals affirmed in toto the
January 10, 2005 decision of Branch 38 of the Regional Trial Court (RTC)
of Maddela, Quirino, convicting Isaias Dizon (appellant) of Murder, the
dispositive portion of which RTC decision reads:
WHEREFORE, premises considered, judgment is hereby rendered
finding ISAIAS DIZON GUILTY beyond reasonable doubt of
Murder for which he should suffer the penalty of reclusion
perpetua and to pay the heirs of JETO SANTOS P75,000.00 as
civil indemnity; P50,000.00 as moral damages; P14,000.00 as
actual expenses; and P5,000.00 as temperate damages.
However, his preventive imprisonment shall be fully credited to him
in the service of his sentence pursuant to Art. 29 of the Revised
Penal Code, as amended. SO ORDERED.
On December 25, 2001, the lifeless body of Jeto Santos (the victim) was
found floating in a creek in Sangbay, Nagtipunan, Quirino. As eyewitness
accounts pointed to Rodel Dizon (Rodel), herein appellant Isaias Dizon,
and Virgilio Pascua (Pascua) as the last persons seen with the victim, the
three were immediately arrested and charged before the Office of the
Provincial Prosecutor.
By Resolution of January 29, 2002, the Provincial Prosecutor found
probable cause to hale only appellant into court. Thus appellant was
charged for Murder in an Information the accusatory portion of which
reads:
That on or about 10:00 o'clock to 11:00 o' clock in the evening of
December 24, 2001 in Sangbay, Nagtipunan, Quirino, Philippines
and within the jurisdiction of this Honorable Court, the said accused
with intent to kill and with treachery did then and there willfully,
unlawfully and feloniously attack, assault and use personal
violence upon the person of JETO SANTOS by hitting thrice the
latter in the head with the use of stones, thereby inflicting upon the
latter mortal wounds which were the direct and immediate cause of
his death thereafter. CONTRARY TO LAW.
From the account of prosecution witness, Rodel, whose grandfather is a
cousin of herein appellant, the following transpired:
In the evening of December 24, 2001, while he, Pascua and appellant
were drinking at a videoke bar, the victim entered and started dancing
along to the music. At around 10:00 o'clock he went outside to urinate at
an elevated area, with no enclosure, illuminated by the lights from the bar
and adjacent to the downward path towards a creek.
While urinating, he saw appellant and the victim exit from the bar and
proceed towards the creek which was about 15-20 meters away from the
bar. Upon reaching the stone-littered edge of the creek, appellant picked
up a fist-sized stone with which he smashed the face of the victim who, as
a result fell down. He thus rushed to the two and tried to pacify appellant.
Unrestrained, appellant attempted to again hit the victim by picking up
another stone, oblong in shape whose length was approximately that of a
long coupon bond, but he (Rodel) was able to arrest the attempt and the
stone fell on the ground. Appellant thereupon shoved him, picked up the
same stone and succeeded in "dropping" it at the already sprawled victim.
Realizing that he could no longer pacify appellant, he ran away and
proceeded to his grandmother's house.
Appellant denied the charge. Admitting that he was at the bar with Rodel
and Pascua before the incident, he claimed that he went home at around
8:45 in the evening at the behest of his wife Mary Jane.
Mary Jane corroborated appellant's testimony, adding that at around 11:00
in the evening, she noticed Rodel knocking on the door of her neighbor
Romy Dizon, saying "Uncle, uncle, please open up because I have killed";
that when nobody responded, Rodel went to their (appellant's and Mary
Jane's) house and pleaded "Lola, lola, please open up because I have
killed"; and that when she opened the door, Rodel asked for money from
her to which she obliged, but she did not ask who the victim was.
The trial court, as stated early on, convicted appellant by Decision of
January 10, 2005.
In convicting appellant, the trial court credited, among other things, Rodel's
positive identification of appellant absent a showing that he was actuated
by an ill-motive to testify against his grandfather, herein appellant. And the
trial court noted the testimony of Dr. Perla Olay as corroborative of Rodel's
testimony that the victim was hit in the head.
In his Brief filed before the Court of Appeals, appellant faulted the trial
court:
I
. . . in finding [him] guilty beyond reasonable doubt of the offense
charged[; and]
II
. . . in appreciating the qualifying circumstance of treachery.
The appellate court in upholding the trial court's finding that treachery
attended the killing held:
The act of Accused-Appellant in hitting the victim again with a
stone knowing fully well that the latter is already sprawled on the
ground, with his hands spread [out], insured that the victim had no
opportunity to defend or retaliate against him. Moreover, the
deliberate throwing of stones, thereafter by the Accused-Appellant,
with the sizes of a fist and a long coupon bond, for a number of
times simply tend[s] to show that the Accused-Appellant had
chosen such manner of execution. Additionally, treachery can exist
even if the attack is frontal, if it is sudden and unexpected, giving
the victim no opportunity to defend himself against such attack.
Thus, the requisites to qualify the crime to murder through
treachery are met in the instant case. (Underscoring supplied)
In determining the existence of treachery, the Court considers the manner
of execution of the criminal act which renders it impossible for the victim to
defend himself.2 Treachery can thus exist even if the attack is frontal if it is
sudden and unexpected. While in Rodel's Sworn Statement 3 before the
police given soon after his arrest, he declared that there was an altercation
before appellant picked up a stone and hit the victim with it, murder is not
ruled out. The appellant's picking up of a stone and crashing it upon the
victim was so sudden. It bears noting that appellant's attack was directed
to the head of the victim, indicating that he intended to render him
unconscious, if not to kill him instantly, to thus render him defenseless. The
gravity of the head wounds suffered by the victim - seven lacerated
wounds two of which exposed the brain tissues, hence fatal 4 according to
Dr. Olay, should confirm such intent.
The identification of appellant as the malefactor by his grandson Rodel
should a fortiori be accorded much weight, for judicial notice is taken of the
natural hesitancy of most people to get involved in a criminal case,5 which
is naturally heightened in Rodel because appellant is a relative.
As for appellant's alibi, for it to prosper, it is not enough to prove that he
was somewhere else when the offense was committed. It must likewise be
proven that he was somewhere else that he could not have been physically
present at the place of the crime or its immediate vicinity at the time of its
commission.6 As testified by his wife, Mary Jane, however, the bar was
only 50 meters away from their house, hence, it was not impossible for him
to be at the locus criminis at the time of the commission of the crime.
In fine, appellant's appeal fails.
A word on the civil aspect of the case. In line with prevailing jurisprudence,
the award of civil indemnity is reduced from P75,000 to P50,000.7 The
award of temperate damages8 is deleted, actual damages having already
been awarded. The Court awards, however, exemplary damages in the
amount of P25,000,9 an aggravating circumstance - treachery - being
present.
WHEREFORE, the Court of Appeals Decision of October 31, 2006
is AFFIRMED with the following MODIFICATION on the civil aspect of
the case (1) the award of civil indemnity is reduced from P75,000
to P50,000; (2) the award of temperate damages is deleted and; (3)
exemplary damages is awarded to the heirs of the victim in the amount
of P25,000.
G.R. No. 173248             November 3, 2008
PEOPLE OF THE PHILIPPINES, plaintiff-appellee vs.
DANTE NUEVA y SAMARO, accused-appellant.
BRION, J.:
We review the appeal by accused-appellant Dante Nueva y Samaro
(appellant) from the April 27, 2006 Decision1 of the Court of Appeals (CA) in
CA-G.R. CR-HC No. 00727. The CA affirmed the November 12, 2004
Decision2 of the Regional Trial Court (RTC), Branch 129, Caloocan City,
finding the appellant guilty beyond reasonable doubt of the crime of murder
and sentencing him to suffer the penalty of reclusion perpetua.
ANTECEDENT FACTS
The prosecution charged the appellant, Porpirio Maribuhok (Porpirio) and John
Doe, one of the as yet unidentified assailants, before the RTC with the crime of
murder under an Information that states:
That on or about the 29th day of December, 2000 in Caloocan City, Metro
Manila and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring together and mutually helping with one
another, without any justifiable cause, and with deliberate intent to kill with
treachery, evident premeditation and abuse of superior strength, did then
and there willfully, unlawfully and feloniously attack, assault, hit with a
piece of wood on the head and stab at the back and chest one VIRGILIO
REVOLLIDO, JR. Y ANTOLIN, with a bladed weapon, thereby inflicting
upon the latter serious physical injuries, which eventually caused his
death. Contrary to law.3
Of the three accused, only the appellant was apprehended; the others
remained at large. On arraignment, the appellant pleaded not guilty to the
charge. The prosecution presented the following witnesses in the trial on the
merits that followed: Virgilio Revollido, Sr. (Virgilio); Alfonso Bacar, Jr.
(Alfonso); PO3 Jaime Basa (PO3 Basa); Dr. Ludivino G. Lagat (Dr. Lagat);
PO2 Edilberto Safuentes (PO2 Safuentes); SPO1 Renato Aguilar (SPO1
Aguilar); and Mariadita Revollido-Baytan (Mariadita). The appellant took the
witness stand for the defense.
Virgilio, the father of the victim, testified that her daughter, Annabelle
Revollido, informed him in the morning of December 30, 2000 of his son's
death.4 At the time he died, his son was 31 years old5 and was single; he
received a monthly pay of about P5,000.00 as a machine operator in Vitan
Industries.6 He affirmed that he incurred more than P60,000.00 for the wake
and burial of his son.7
Alfonso narrated that at around 10:00 in the evening of December 29, 2000,
while he was standing outside the Great Taste Bakery located on 4th Avenue
East, Caloocan City, he saw a person coming from M.H. Del Pilar Street being
chased by another (John Doe). Upon reaching 4th Avenue, the person being
chased passed in front of the appellant and Porpirio who were then standing
near the corner of 4th Avenue. At that point, the appellant held the victim's left
hand and led him to the other side of the road. There, Porpirio took a piece of
wood and hit the victim on the head, causing the latter to fall to his knees. The
appellant continued to box the victim until John Doe came. 8 John Doe
immediately stabbed the victim at the back. The appellant, who was then at the
victim's front, then pulled out a knife and likewise stabbed the victim.
Afterwards, the three accused ran towards M.H. Del Pilar Street. The victim
stood up, but, after taking two (2) steps, fell to the ground. Thereafter, an
unidentified person came and brought the victim to a hospital on board a van. 9
Alfonso testified further that he was informed of the full name of the victim on
January 19, 2001 by the latter's relatives after he gave his statement to the
police authorities.10
On cross examination, he narrated that he was more or less 7 to 8 arms length
away from the place of the incident, and that the place at that time was well-
lighted.11
PO3 Basa, a police officer assigned at the Caloocan Police Headquarters,
testified that on December 29, 2000, he received a verbal communication from
the PNP Tactical Operation Center of a stabbing incident at M.H. Del Pilar
Street. He went to the scene of the crime and was informed there by
bystanders that the victim had been brought to the Chinese General Hospital.
He proceeded to the emergency room of the hospital and saw the lifeless body
of the victim who bore several stab wounds.12
Dr. Lagat, the Medico-Legal Officer of the National Bureau of Investigation,
declared on the witness stand that he conducted an autopsy on the remains of
the victim on December 30, 2000 and made the following findings:
Abrasions: 1.0 x 1.3 cm., shoulder, left 4.0 x 2.0 cm., back, left side, 4.0 x
1.0 cm., back, right side; 5.0 x 1.0 cm., antecubital area, left; 2 x 1.0 cm.
right knee.
Incised wounds, 3.0 cm., forehead, right side; 3.0 cm., chest, right side, 5.0
cm., left supra scapular area; 6.0 cm., left hand, back; 3.0 cm., right ring
 finger.
Stab wounds, all elliptical; clean cut edges, with sharp and a blunt
extremities.
1. 1.0 cm., obliquely oriented, located at the lateral aspect of the neck; left
side; 10.0 cm., from the anterior median line directed backward and medially
involving the skin and soft tissue arteriorly.
2. 3.5 cm., obliquely oriented; located at the anterior chest wall, left side 4.0
cm., from the anterior median line, level of the 4 th intercostal; directed
backward, downward and medially involving the skin underlying soft tissue;
perforating the pericardial sac; penetrating the left ventrical of the heart, with
a depth of 13.0 cms.
3. 4.5 cms., obliquely oriented; located at the anterior chest wall, right side;
3.0 cms., from the anterior median line, level of the 5th intercostals; directed
backward; downward and medially, involving the skin and underlying soft
tissue; then penetrating the middle lobe of the right lobe with depth of 12.0
cms.
CAUSE OF DEATH: STAB WOUNDS, BODY.
According to Dr. Lagat, the victim suffered three (3) stab wounds, eight (8)
incise wounds, and several abrasions in different parts of his body. Of the
three stab wounds, two (2) were fatal, both of them at the chest. 14
PO2 Safuentes of the Mobile Patrol Division, Caloocan City Police, stated that
he was one of the police officers who apprehended the appellant. According to
him, he and his five (5) companions went to Letre, Tonsuya, Malabon to serve
the arrest warrant on the appellant who was not in his house at the time. 15 On
their way out of Letre, they chanced upon the accused who, on seeing them,
turned his back and ran. PO1 Chu16 fired two (2) warning shots, causing the
appellant to stop. PO2 Safuentes showed him (appellant) then the
corresponding warrant of arrest and then brought him to the hospital for
mandatory physical examination.17
SPO1 Aguilar was with the arresting team and essentially confirmed what PO2
Safuentes testified on.18
Mariadita, the victim's sister, confirmed that she identified and requested an
autopsy of her brother's remains.19
The appellant had a different version of the events. His testimony was
succinctly summarized by the RTC as follows:
Dante Nueva y Samaro testified that on December 29, 2000, at around
10:00 o'clock in the evening, he was at work as bouncer at Yellow
Submarine with one Wilmor that was from 10:00 p.m. to 3:00 a.m. He does
not know of any untoward or stabbing incident in his working place.
He said he does not know of any reason why he is being charged with
murder.20
He likewise narrated that he knows a person by the name of Porpirio
Maribuhok, one of the accused in this case who is a customer at Yellow
Submarine. He did not see Porpirio Maribuhok at the night of the incident. 21
On cross by Pros. Susano, said accused testified that he knows for 3 months
already [sic] Porpirio Maribuhok who is a customer of the Yellow Submarine
near M.H. del Pilar St., which place is around 30/40 meters away from Great
Taste Bakery.22
He said that yellow Submarine is owned by one Maring Rinos whom he
knows for three (3) years already. He also knows one Edgar, Entoy, Val and
Leo.23 
The RTC convicted the appellant in its decision of November 12, 2004. The
dispositive portion of this decision reads:
WHEREFORE, accused Dante Nueva y Samaro, is hereby found Guilty,
beyond reasonable doubt of Murder, qualified by treachery, and is sentenced
to Reclusion Perpetua. Accused is ordered to pay the heirs of the victim,
Virgilio Revollido, Jr., P50,000.00 as civil indemnity ex delicto; to pay the
heirs of the victim, Fifty Six Thousand One Hundred Twelve (P56,112.00)
Pesos as actual damages.
In the absence of proof to prove loss of earning capacity, the same is
disallowed.
Let alias warrant of arrest be issued against the accused Porpirio Maribuhok.
In the interim, the case against him is Archived, until his arrest. SO
ORDERED.
The appellant appealed his conviction to the CA25 whose decision of April 27,
2006 affirmed the RTC decision with modification. The CA ordered the
appellant to additionally pay the victim's heirs the amounts of P50,000.00
and P25,000.00 as moral and exemplary damages, respectively. A: Somebody was chasing someone coming from M.H. Del Pilar St.

In his brief,26 the appellant argues that the lower court erred in finding him
guilty of the crime charged despite the failure of the prosecution to establish
his guilt beyond reasonable doubt. He posits that the prosecution merely
established that a person was killed, but failed to prove beyond reasonable
doubt that it was he who killed the victim.
Q: How many persons who [sic] were running after someone?
A: One is chasing somebody, sir.
Q: What happened to that pursuit of one man with another man?

THE COURT'S RULING A: When the person being chased reached 4th Avenue coming from M.H. Del
Pilar and facing in front of two persons standing near the corner, then Dante
After due consideration, we resolve to deny the appeal but modify the Nueva held the left arm of the one running.
amount of the awarded indemnities.
Q: What happened after Dante held the left arm of the man being pursued?
Sufficiency of Prosecution Evidence
A distinguishing feature of this case is the presence of an eyewitness - Alfonso A: Then they proceeded to the other corner or turned around to the other
- who provided positive identification of the appellant in his July 31, 2001 corner.
testimony. To directly quote from the records:
Q: They turned around because Dante held the left arm of the person
FISCAL NEPTHALI ALIPOSA: Mr. Bacar, can you recall where were you on being pursued?
the evening of December 29, 2000, particularly at around 10:00 in the evening,
more or less?
A: Yes, sir.
ALFONSO BACAR, JR.: Yes, sir.
Q: When they reached the other side of the road, what happened?
Q: Where were you?
A: Porpirio took a piece of wood (dos por dos) and he hit the person being
chased on the head.
A: I was at Great Taste Bakery, sir.
Q: When Porpirio hit the head of the person being pursued, what was Dante
Q: This bakery, where is this located? Nueva doing in relation to the victim, if any?

A: At 4th Avenue East, Caloocan City. A: Dante Nueva boxed first the person being chased until the person who
was chasing arrived.
Q: Outside or inside Great Taste Bakery?
Q: You said that the person being pursued was being hit by a piece of wood on
A: Outside, sir. the head, what happened to the person being hit on the head?

Q: While outside Great Taste Bakery, do you remember of any unusual A: The person being chased was hit on the head with a piece of wood fell on
incident that happened? his knees.

A: Yes, sir. Q: While the victim who was hit on the head was on a kneeling position, what
happened?
Q: What was that unusual incident?
A: While the person who was hit on the head fell on his knees, the person who
was chasing him arrived.
Q: What happened when the person chasing the victim arrived?
A: Then that person stabbed the person being chased at the back who was
then kneeling.
Q: Where was Dante at that time when the victim was hit by that person
pursuing at the back?
A: Dante was there in front of the victim.
Q: What happened after the victim was stabbed at the back, what did Dante
do, if any?
A: Dante pulled out a knife and stabbed the victim on the front portion of
the body and at the same time the other person was stabbing the victim.
Q: With what weapon did Dante use in stabbing the victim on the front
part of the body?
A: A fan knife, sir.
Q: How about the other person who was pursuing the victim and who stabbed
first the victim at the back, do you know what weapon was being used by this
person?
A: I don't know what weapon was that, because upon arrival of this person, he
immediately stabbed the victim.
Q: What happened to the victim who was conspired upon by the 3 persons
Dante Nueva, Porpirio and the person who stabbed the victim at the back?
ATTY. JIMMY EDMUND BATARA: We object, Your Honor, conspire is already
a conclusion.
COURT: What is again the question?
STENOGRAPHER: What happened to the victim who was conspired upon by
the 3 persons, Dante Nueva, Porpirio and the person who stabbed the victim
at the back?
COURT: Successively attacked.
FISCAL NEPTHALI ALIPOSA: Yes, Your Honor, successively attacked.
ALFONSO BACAR, JR.: He was kneeling while he was being stabbed or
while they were stabbing that victim all at the same time and that person
being stabbed by the 3 persons also tried to parry the stabbing.
Q: What happened to him?
A: Then after that or after the stabbing of the victim, they ran away and went
towards the direction of MH Del Pilar.
Q: These 3 persons who attacked the victim one on the head, one of them
stabbed the victim at the back and the other in front, are they inside the
Courtroom now?
A: Only one is inside, sir.
Q: Will you kindly point to the one who was or who is now inside this room?
A: That person sir.
INTERPRETER: Witness is pointing to a person who identified himself as
Dante Nueva.27
Time and again, we have ruled that the credibility of witnesses is a matter best
left to the determination of the trial court because it had the unique advantage
of having personally observed the witnesses, their demeanor, conduct, and
attitude. As a consequence, we have considered the the trial court's
assessment of the credibility of witnesses to be binding except when the lower
court had patently overlooked facts and circumstances of weight and influence
that could alter the results of the case.28
We carefully scrutinized the records of this case and found no reason to
disbelieve Alfonso's straightforward narration of the events surrounding the
death of the victim. Nor did we see anything on record showing any improper
motive that would lead Alfonso to testify as he did. In fact, in his testimony of
July 31, 2001, he categorically stated that he had no misunderstanding with
the appellant and his two (2) co-accused prior to the stabbing incident. Thus,
we adhere to the established rule that in the absence of evidence showing any
reason or motive for the prosecution witness to perjure himself or herself, we
can conclude that no improper motive exists and his or her testimony is worthy
of full faith and credit.29 Moreover, Alfonso testified that he knew the appellant
prior to the stabbing incident for more or less four (4) years already; hence
there could not have been any doubt regarding his positive identification of the
appellant as one of the assailants.
In his defense, the appellant claimed the defenses of denial and alibi. He
denied knowing the victim and insisted that he was at the Yellow Submarine
bar on 4th Avenue/Del Pilar St. on December 29, 2000; he was there working
as a bouncer from 10:00 p.m. to 3:00 a.m. He explained that he failed to get a
certification from Yellow Submarine to prove that he was working at that time
because no one visited him.
To be believed, denial must be supported by strong evidence of non-
culpability; otherwise, it is purely self-serving.30 Alibi, on the other hand, is one
of the weakest defenses in a criminal case and should be rejected when the
identity of the accused is sufficiently and positively established by the
prosecution.31 For the appellant's defense of alibi to prosper, he should have
proven that it was physically impossible for him to have been at the scene of
the crime when it was committed. By physical impossibility we refer to the
distance and the facility of access between the situs criminis and the place
where he says he was when the crime was committed.32
The appellant fails this test as he insisted that he was at the Yellow Submarine
working as a bouncer at the time of the stabbing incident. By his own
admission, the Yellow Submarine is only 30 to 40 meters from the Great Taste
Bakery. This short distance does not render it physically impossible for the
appellant to have been at the place where the victim was attacked.
Aside from being inherently weak, the appellant's alibi cannot prevail over the
positive identification made by Alfonso that the appellant was one of the
victim's assailants. We particularly note that Alfonso categorically stated that
he stabbed the victim from the front,33 and note as well that the victim's two
fatal wounds were his chest wounds.34 Thus, of the three assailants, it was the
appellant himself who delivered the fatal blows on the victim.
In a long line of cases, this Court has held that positive identification, made
categorically and consistently, almost always prevails over alibi and denial.
These defenses, if not substantiated by clear and convincing evidence, are
negative and self-serving and are undeserving of weight in law. 35 We see no
reason in this case to deviate from these established rules.
The crime committed
Article 248 of the Revised Penal Code defines the crime of murder as follows:
Article 248. Murder. - Any person who, not falling within the provision of
Article 246, shall kill another, shall be guilty of murder and shall be
punished by reclusion perpetua to death if committed with any of the
following attendant circumstances:
1. With treachery, taking advantage of superior strength, with the aid of
armed men, or employing means to weaken the defense, or of means or
persons to insure or afford impunity;
a. No treachery
In convicting the appellant of the crime of murder, the courts a quo appreciated
the qualifying circumstance of treachery. According to the RTC, "the attack
was sudden and not provoked, and was not preceded by any exchange of
words, no altercation between the assailants and the victim, who was not
aware that he would be killed by the accused. x x x [A]ccused stabbed the
victim in succession even when he was already on the ground,
wounded."36 The CA concurred with this RTC finding of treachery without
however offering any explanation for its concurrence.
We disagree with the lower courts in this conclusion as our review of the
evidence points us to the conclusion that no treachery existed.
Treachery is not presumed. The circumstances surrounding the murder must
be proved as indubitably as the crime itself.37 There is treachery when the
offender commits any of the crimes against persons, employing means,
method or forms which tend directly and especially to insure its execution,
without risk to the offender, arising from the defense that the offended party
might make.38
To constitute treachery, two conditions must concur: (1) the employment of
means, methods or manner of execution that would ensure the offender's
safety from any defense or retaliatory act on the part of the offended party; and
(2) the offender's deliberate or conscious choice of the means, method or
manner of execution.39
We find it undisputed that prior to the killing, the victim was being chased by
John Doe. Upon reaching 4th Avenue, he passed in front of the appellant and
Porpirio who, at that time, were both standing near the corner of 4 th Avenue. As
the victim passed, the appellant held his left hand and led him towards the
other side of the road. There, Porpirio struck the victim on the head with a dos
por dos causing him to fall to his knees. The appellant thereafter boxed the
victim until John Doe came. They then stabbed him, John Doe delivering the
first blow from the back and the appellant doing it from the front.
Under these facts, we see no evidence indicating that the appellant and his co-
accused made some preparation to kill the victim in such a manner as to
ensure the execution of the crime or to make it impossible or hard for the
victim to defend himself.40 There was nothing in the record that shows that the
three (3) assailants carefully considered the mode or method of attack to
ensure the killing of the victim. While the intent to kill was patent, the manner
of attack did not appear to have been deliberately adopted.
In People v. Antonio,41 we held that it is not only the sudden attack that
qualifies a killing into murder. There must be a conscious and deliberate
adoption of the mode of attack for a specific purpose.
Likewise, in People v. Catbagan,42 we ruled that treachery cannot be
considered when there is no evidence that the accused had resolved to
commit the crime prior to the moment of the killing, or that the death of the
victim was the result of premeditation, calculation or reflection.
b. Abuse of superior strength
We agree, however, that abuse of superior strength attended the killing of the
victim. To take advantage of superior strength means to use purposely
excessive force, or force out of proportion to the means of defense available to
the person attacked. The aggravating circumstance of abuse of superior
strength depends on the age, size and strength of the parties. 43 It is present
whenever there is inequality of forces between the victim and the aggressor so
that the superiority of strength is notoriously advantageous for the latter who
took advantage of this superiority in committing the crime. 44
The records reveal that the lone and unarmed victim was held by the
appellant by hand and led to the other side of the road; struck on the head by
Porpirio; boxed by the appellant; and then successively stabbed by John Doe
and by the appellant. Clearly, the victim was in no position to defend himself;
he was overwhelmed by the combined efforts of all three (3) assailants who
did not only enjoy superiority in number, but also of weapons. This
numerical and physical disparity was manifest in the victim's various abrasions
on the shoulders and knees; incised wounds on the forehead, chest, hand and
back; and stab wounds on the neck and chest. That the assailants took
advantage of their superior number and combined strength as against the
relatively defenseless victim can be clearly discerned from these
circumstances.
c. Evident premeditation
While evident premeditation was alleged in the Information, the court a
quo correctly concluded that this circumstance was not proven. For evident
premeditation to be appreciated, the following elements must be established:
(1) the time when the accused determined to commit the crime; (2) an overt
act manifestly indicating that the accused has clung to his determination; and
(3) sufficient lapse of time between decision and execution to allow the
accused to reflect on the consequences of his act.45 Significantly, the
prosecution did not even attempt to prove the presence of these elements;
Alfonso, the principal eyewitness, was not even aware of any prior incident or
any possible reason that could have led the appellant and his co-accused to
attack the victim.
Conspiracy
A conspiracy exists when two or more persons come to an agreement
concerning the commission of a crime and decide to commit it. Proof of the
agreement need not rest on direct evidence as the same may be inferred from
the conduct of the parties indicating a common understanding among them
with respect to the commission of the offense. It is not necessary to show that
two or more persons met together and entered into an explicit agreement
setting out the details of an unlawful scheme or the details by which an illegal
objective is to be carried out. It may be deduced from the mode and manner by
which the offense was perpetrated or inferred from the acts of the accused
showing a joint or common purpose and design, concerted action and
community of interest.46
In the present case, no evidence exists showing that the three (3) assailants
previously met and came to an agreement to attack the victim. However, from
the evidence presented, it was clear that they aimed their acts towards the
accomplishment of the same unlawful object. Each did an act that, though
apparently independent, was in fact connected and cooperative, indicating
closeness of personal association and a concurrence of sentiment.
To the point of being repetitive, we restate what Alfonso, the principal witness,
positively narrated in court: the appellant held the hand of the victim and led
him towards the other side of the road; Porpirio hit the victim on the head with
a piece of wood causing the latter to fall to his knees; the appellant boxed the
victim until John Doe came and stabbed him at the back; then the appellant,
who was at the victim's front, stabbed him in the chest.
In our view, these joint actions sufficiently point to a common design to end the
life of the victim. Thus, the act of one acting pursuant to this design is deemed
the act of all.47
The proper penalty
The crime of murder qualified by abuse of superior strength is penalized under
Article 248 of the Revised Penal Code (as amended by Republic Act No. 7659)
with reclusion perpetua to death.
While treachery and evident premeditation were alleged in the Information,
these circumstances were not adequately proven. In the absence of mitigating
and aggravating circumstances in the commission of the felony, the courts a
quo correctly sentenced the appellant to reclusion perpetua, conformably with
Article 63(2)48 of the Revised Penal Code.
Civil Liability
The RTC awarded the amount of P56,112.00 to the victim's heirs as actual
damages. It appears that out of the said amount, only P55,438.00 was duly
supported by receipts. To be entitled to actual damages, it is necessary to
prove the actual amount of loss with a reasonable degree of certainty,
premised upon competent proof and on the best evidence obtainable to the
injured party.49
We also award indemnity for loss of earning capacity to the victim's heirs, as
documentary evidence (Exh. "D") 50 was presented to substantiate this claim.
Indemnity for loss of earning capacity is determinable under established
jurisprudence based on the net earning capacity of the murder victim
computed under the formula:
Net Earning Capacity = 2/3 x (80 less the age of the victim at the time of
death) x (Gross Annual Income less the Reasonable and Necessary Living
Expenses)51
The records show that the victim's annual gross income was P61,245.60
computed from his weekly rate of P1,275.95 (or P5,103.80 per month). His
reasonable and necessary living expenses are estimated at 50% of this gross
income, leaving a balance of P30,622.80. His life expectancy, on the other
hand, is assumed to be 2/3 of age 80 less 31, his age at the time of death.
Applied to the above formula, these data yield the net earning capacity loss
of P1,010,552.40.
We affirm the awards of P50,000.00 as civil indemnity52 and P50,000 as moral
damages53 pursuant to current jurisprudence.
The heirs of the victim are likewise entitled to exemplary damages since the
qualifying circumstance of abuse of superior strength was firmly established.
When a crime is committed with an aggravating circumstance, either qualifying
or generic, an award of P25,000.0054 as exemplary damages is justified under
Article 2230 of the New Civil Code.
WHEREFORE, in light of all the foregoing, we hereby AFFIRM the April 27,
2006 Decision of the CA in CA-G.R. CR-HC No. 00727 with the
following MODIFICATIONS:
(1) actual damages is REDUCED to P55,438.00; and (2) the appellant is
ORDERED to pay the heirs of the victim P1,010,552.40 as indemnity for loss
of earning capacity.
G.R. No. 182192              October 29, 2008
PEOPLE OF THE PHILIPPINES, vs.
AGRIPINO GUEVARRA y MULINGTAPANG alias "BOY
DUNGGOL, accused- appellant.
CHICO-NAZARIO, J.:
For review is the Decision of the Court of Appeals in CA-G.R. CR-H.C. No.
02367, dated 16 October 2007, 1 affirming with modification the Decision,
dated 4 July 2006, of the Batangas City Regional Trial Court (RTC),
Branch IV, in Criminal Case No. 12486, 2 finding accused-appellant
Agripino Guevarra y Mulingtapang, alias "Boy Dunggol," guilty of murder,
and imposing upon him the penalty of reclusion perpetua.
The facts gathered from the records of the case are as follows:
On 30 August 2002, an Information 3 was filed with the RTC charging
appellant with murder. The accusatory portion of the information reads:
That on or about August 24, 2002 at around 9:15 o’clock in the evening at
Ebora Road, Brgy. Kumintang Ibaba, Batangas City, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, while
armed with a caliber .45 pistol, a deadly weapon, with intent to kill and with
the qualifying circumstance of treachery, did then and there willfully,
unlawfully and feloniously attack, assault and repeatedly shot with said
firearm suddenly and without warning one P/Chief Inspector Marcos Barte
y Paz while the latter was unarmed and completely defenseless, thereby
hitting him on different parts of his body which directly caused the victim’s
death.
That the special aggravating circumstance of the use of an unlicensed
firearm is attendant in the commission of the offense.
When arraigned on 12 November 2002, appellant, assisted by his
counsel de oficio, pleaded "Not guilty" to the charge. 4 Trial on the merits
thereafter followed.
The prosecution presented as witnesses Anacleto Gonzales (Anacleto),
Maria Antonette Gonzales (Antonette), Senior Police Officer 1 Felixberto
Cabungcal (SPO1 Cabungcal), SPO1 Florentino Buenafe (SPO1
Buenafe), Dr. Edwin Castillo (Dr. Castillo), Dr. Antonio S. Vertido (Dr.
Vertido), and Marita Gonzales Vda. de Barte (Mrs. Barte). Their
testimonies are summarized as follows:
Anacleto, cousin of herein deceased victim Police Chief Inspector Marcos
P. Barte (Inspector Barte) of the Batangas City Police Station, testified that
on 24 August 2002, at around 3:30 p.m., Inspector Barte, accompanied by
a certain Roberto Godoy (Godoy) and Ronnie Valiente (Valiente), arrived
at his house located at Barangay Kumintang Ibaba, Batangas City. He,
Inspector Barte, Godoy, Valiente, and Anacleto’s father-in-law, Nicasio
Resurreccion (Nicasio), talked and drank gin inside the house.
Subsequently, the group, with the exception of Godoy, left the house and
went to a videoke bar owned by a certain Sergeant Emilio Vidal (Sgt. Vidal)
located at Ebora Road, Barangay Kumintang Ibaba, Batangas City. They
arrived at the videoke bar at about 8:30 p.m. He drank one bottle of beer
while Inspector Barte consumed two bottles of beer. Thereafter, at about
9:15 p.m., the group went out of the videoke bar. He saw his wife,
Antonette, outside the videoke bar. Antonette approached and talked to
him. He also saw Godoy seated in the driver’s seat of an owner-type jeep
parked near the videoke bar, and a certain Imelda Shin (Imelda) sitting at
the back portion of the jeep. Valiente boarded the jeep and sat beside
Imelda. Inspector Barte also boarded the jeep and sat in the front
passenger’s seat beside Godoy. When Anacleto was about to board the
jeep, appellant suddenly appeared and approached Inspector Barte.
Appellant asked Inspector Barte if he was "Major Barte." Thereupon, he
saw appellant shoot Inspector Barte several times with a short firearm. He
was then one arm’s length from Inspector Barte and one meter away from
appellant. Inspector Barte slumped on his seat bloodied while Godoy
shouted that he was also hit. Appellant immediately fled the scene. 5
Subsequently, Anacleto drove the jeep and brought Inspector Barte to the
Batangas Regional Hospital. Inspector Barte was pronounced dead on
arrival. Godoy was also brought to the said hospital for treatment of his
wounds. Later, the police arrived at the hospital and interviewed him about
the incident. He executed a sworn statement regarding the incident. 6
Antonette narrated that on 24 August 2002, at about 8:40 p.m., she,
together with Godoy and Imelda, went to a videoke bar owned by Sgt.
Vidal at Ebora Road, Barangay Kumintang Ibaba, Batangas City, to fetch
her husband, Anacleto. She and Imelda boarded an owner-type jeep
driven by Godoy in going to the videoke bar. Upon arriving thereat, she
proceeded to the videoke bar, peeped in its window, and saw Anacleto,
Inspector Barte, her father, and Valiente therein. She signaled to Anacleto
that she would wait for them on the jeep outside the videoke bar.
Afterwards, Anacleto, Inspector Barte, Nicasio, and Valiente went out of
the videoke bar. Nicasio boarded a tricycle and proceeded home while
Valiente and Inspector Barte boarded the jeep. Valiente sat beside Imelda
at the backseat of the jeep while Inspector Barte sat beside the driver’s
seat then occupied by Godoy. When Anacleto was about to board the jeep,
she heard a gunshot. Upon turning her head towards the direction of the
gunshot, she saw appellant shoot Inspector Barte with a short firearm.
Thereafter, she heard Godoy shouting that Inspector Barte was shot and
told her to call the police. She immediately proceeded to a nearby drug
store where she used a telephone in contacting the police. She saw
Anacleto driving the jeep with Inspector Barte on board. Later, she
proceeded to the Batangas Regional Hospital where she saw the lifeless
body of Inspector Barte in a stretcher. She also saw therein Godoy being
treated for wounds. 7
SPO2 Cabungcal, a member of the Batangas City Police Station,
Intelligence Division, testified that he was on duty at the said station on the
night of 24 August 2002. On that same night, the station received a report
about a shooting incident at Ebora Road, Barangay Kumintang Ibaba,
Batangas City. He and several police officers immediately proceeded to
the crime scene. Upon arriving thereat, they searched the crime scene and
recovered four caliber .45 empty shells, one live caliber .45 ammunition
and one deformed caliber .45 slug. Thereafter, they went to the Batangas
Regional Hospital where they were informed that Inspector Barte was
already dead. He turned over to SPO1 Buenafe, the investigator of the
case, the evidence they recovered from the crime scene. 8
SPO1 Buenafe, a member of the Batangas City Police Station,
Investigation Section, averred that he conducted an investigation in the
instant case; that after the incident, he went to the Batangas Regional
Hospital where he was informed that Inspector Barte was already dead
and Godoy was injured; and that SPO1 Cabungcal turned over to him
object evidence recovered from the crime scene. 9
Dr. Castillo, a surgeon assigned at the Batangas Regional Hospital,
recounted that he attended to Inspector Barte when the latter was brought
to the hospital on the night of 24 August 2002. During the initial
examination, he observed that Inspector Barte sustained gunshot wounds
and had no blood pressure, cardiac and respiratory rate. He and some
medical staff tried to resuscitate Inspector Barte but to no avail. The
gunshot wounds were located on the left temporal area, left anterior chest,
right nipple, and left arm of Inspector Barte. He considered the gunshot
wounds in the left temporal area and left anterior chest of Inspector Barte
fatal. He issued a medico-legal certificate pertaining to Inspector Barte and
an anatomical chart showing the location of gunshot wounds sustained by
Inspector Barte. 10 His findings, as stated in the medico-legal certificate of
Inspector Barte, are as follows:
THIS IS TO CERTIFY that Marcos P. Barte, 46 years of age, male, Filipino
of Soro-soro 2, Batangas City, at about 9:30 p.m., August 24, 2002 with
the following injuries sustained by him:
Multiple gunshot wounds anterior chest left, Right nipple left temporal area,
left arm
NOTE: DEAD ON ARRIVAL. 11
Dr. Vertido, Medico-Legal Officer of the National Bureau of Investigation
(NBI), Southern Tagalog, Region 4, declared that he conducted an autopsy
on the corpse of Inspector Barte; that Inspector Barte sustained three
gunshot wounds; that the first gunshot wound was located on the left
portion of the head which fractured the skull; that the second gunshot
wound was situated on the right portion of the chest which perforated the
heart and the upper lobe of the left lung exiting at the left side of the back;
that the third wound was on the left portion of the chest which penetrated
the upper lobe of the left lung and exited at the posterior side of the left
arm; and that these wounds caused the death of Inspector Barte. 12 He
issued a Certificate of Post-Mortem Examination on Inspector Barte in
support of his foregoing findings, viz:
POSTMORTEM FINDINGS
Pallor, lips and nailbed. Contusion; anterior chest wall, midline, 2 x 3 cm.
GUNSHOT WOUNDS:
1. ENTRANCE 1.3 x 1.0 cm. ovaloid, edges inverted, with a contusion
collar widest at its upper border, surrounded by an area of tattoing, 8 x 6
cms. at the left temple 6 cms. infront and 5 cms. above the left external
auditory meatus, directed backwards, downwards and medially, involving
the skin and underlying soft tissue, fracturing left temporal bone, lacerating
corresponding lobe, fracturing and penetrating left midcranial fossa, into
the soft tissue of the left posterior neck, 12 cms, below and 10 cm behind
the left external auditory meatus where a semideformed slug
was recovered.
2. ENTRANCE 1.3 x. 1.0 cm. ovaloid, edges inverted, with a contusion
collar widest at its lower border located at the right anterior chest wall, 10
cms. from the anterior median line, 125 cms. above the right heel, directed,
backward, upward and from right to left involving the skin and underlying
soft tissue perforating the heart, and upper lobe of the left lung, then
making an EXIT wound, 1.0 x 1.1. cm., ovaloid, edges everted, located at
the back left side, (scapular area) 20 cm. from the posterior median line,
137 cm. above the left heel.
3. ENTRANCE 1.2 x 1.0 cm. ovaloid, edges inverted with a contusion
collar widest at its lower border, located at the left anterior chest wall, 2 cm.
from the anterior median line 131 cm. above the left heel, directed
backward, upward and laterally, involving the skin and underlying soft
tissues, perforating upper lobe of the left lung then making an EXIT wound,
1 x 1.1 cm. ovaloid, edges everted located at the left arm, posterior aspect,
upper 3rd 28 cms. above the left elbow.
CAUSE OF DEATH: GUNSHOT WOUNDS, HEAD AND CHEST. 13
Mrs. Barte, wife of Inspector Barte, testified on the civil aspect of the case.
She presented a list of expenses incurred for the wake and burial of
Inspector Barte which amounted to ₱183,425.00. She also submitted
official receipts pertaining to the funeral expenses (₱46,250.00), burial lot
(₱53,000.00), and interment fee (₱10,000.00). She claimed that at the time
of Inspector Barte’s death, the latter was receiving a monthly income of
₱30,982.00. 14
The prosecution also adduced documentary and object evidence to
buttress the testimonies of its witnesses, to wit: (1) sworn statement of Mrs.
Barte (Exhibit A); 15 (2) sworn statement of Anacleto (Exhibit B); 16 (3) sworn
statement of Antonette (Exhibit C); 17 (4) sworn statement of SPO1
Buenafe (Exhibit D); 18 (5) death certificate of Inspector Barte (Exhibit
E); 19 (6) certification from the PNP, Firearms and Explosives Division,
Camp Crame, Quezon City, that appellant is not a licensed/registered
firearm holder of any kind and caliber (Exhibit F); 20 (7) four empty bullet
shells, one deformed slug and one live ammunition (Exhibit G); 21 (8) list of
wake and burial expenses (Exhibit H); 22 (9) official receipt covering the
funeral expenses (Exhibit I); 23 (10) official receipt for the burial lot (Exhibit
J); 24 (11) anatomical chart showing the location of gunshot wounds
sustained by Inspector Barte (Exhibit K); 25 (12) medico-legal certificate of
Inspector Barte signed by Dr. Castillo (Exhibit L); 26 (13) pay slip of
Inspector Barte for August 2002 (Exhibit M); 27 (14) list of expenses
incurred for the food served during the wake and burial of Inspector Barte
(Exhibit N); 28 (15) request for autopsy of Inspector Barte signed by Mrs.
Barte (Exhibit O); 29 (16) certificate of identification signed by Dr. Vertido
(Exhibit P); 30 (17) certificate of post-mortem examination on Inspector
Barte (Exhibit Q); 31 (18) autopsy report on Inspector Barte signed by Dr.
Vertido (Exhibit R); 32 and (19) anatomical sketch of the location of the
gunshot wounds sustained by Inspector Barte prepared by Dr. Vertido. 33
For its part, the defense presented the testimonies of appellant and
Ferdinand Ravino (Ravino) to refute the foregoing accusation. No
documentary evidence was presented. Appellant denied any liability and
interposed the defense of alibi.
Appellant testified that at the time of the incident (9:15 p.m., 24 August
2002), he was at Barangay Malad, Calapan City, Oriental Mindoro
vacationing at the house of a certain Hector Africa (Africa). He arrived
therein on the afternoon of 23 August 2002 and left on the morning of 26
August 2002. He was not acquainted with Inspector Barte and came to
know that he was accused of killing Inspector Barte when he arrived at
Batangas City from Oriental Mindoro on the afternoon of 26 August 2002.
He was informed that he would be "salvaged" for killing Inspector Barte.
Hence, he became afraid and hid in his house for two weeks. Thereafter,
he surrendered to the mayor of Batangas City who turned him over to the
Batangas City police. He alleged that Anacleto and Antonette testified
against him because he did not support the candidacy of Antonette during
the previous election for barangay captain where Antonette lost. He
supported then the candidacy of the incumbent barangay captain. 34
Ravino narrated that he has known appellant since 1991 because they
were co-workers in Toyota Motors, Batangas City. On 24 August 2002, at
around 12:00 in the afternoon, Africa came to his auto mechanic shop in
Calapan, Oriental Mindoro and talked to him. Africa requested him to go to
his house at Barangay Malad, Calapan City, Oriental Mindoro, to fix
Africa’s car and thereafter to drink liquor with him. Subsequently, he went
to Africa’s house arriving therein at 5:30 p.m. of the same day. He saw
Africa, appellant and one helper of Africa inside the house. Africa told him
that appellant was taking a vacation at his house. After fixing Africa’s car,
he, Africa and appellant had a drinking spree until 11:00 p.m. of the same
day. Thereupon, he left Africa’s house. Later, he and appellant met at the
city jail of Batangas City. He was detained for a criminal charge while
appellant was detained on the charge of killing Inspector Barte. During
their detention, appellant requested him to testify in his favor to which he
acceded. He was still a detainee at the time he testified in the RTC as
regards the instant case. 35
After trial, the RTC rendered a Decision on 4 July 2006 convicting
appellant of murder. 36 Appellant was sentenced to reclusion perpetua. He
was also ordered to pay the heirs of Inspector Barte the amounts of
₱50,000.00 as compensatory damages, ₱109,250.00 as actual damages,
₱50,000.00 as moral and exemplary damages, ₱4,212,312.72 for loss of
earning capacity, and cost of suit. The dispositive portion of the RTC
Decision reads:
In view of all the foregoing and upon evidence established by the
Prosecution, accused Agripino Guevarra y Mulingtapang alias "Boy
Dunggol" is hereby found Guilty beyond a reasonable doubt of committing
the crime of Murder under Article 248 of the Revised Penal Code as
amended by Republic Act No. 7659. The proper penalty would have been
death by lethal injection but with the repeal of the death penalty pursuant to
Republic Act No. 9346 which was recently signed into law by the President
on June 22, 2006, imposition thereof is no longer possible. Consequently,
herein accused is sentenced to suffer the penalty of reclusion
perpetua and to pay the costs. Further, he shall pay the private offended
party ₱50,000.00 for the death of Major Barte as compensatory damages;
₱109,250.00 as actual damages sustained which were reflected in the
official receipts submitted in evidence; ₱50,000.00 as moral and exemplary
damages; ₱4,212,312.72 loss of earnings computed on the basis of the
pay slip of Major Barte for the month of August, 2002 showing that at the
time of his death his full compensation amounted to ₱30,982.00.
The accused maybe credited with his preventive imprisonment if he is
entitled to any and directed to be immediately committed to the National
Penitentiary in Muntinlupa City. 37
Appellant appealed to the Court of Appeals. On 16 October 2007, the
appellate court promulgated its Decision affirming with modification the
RTC Decision. 38 It held that an additional amount of ₱25,000.00 as
exemplary damages should also imposed on appellant because the
qualifying circumstance of treachery attended the killing of Inspector Barte.
Thus:
WHEREFORE, premises considered, the July 4, 2006 Decision of the
Regional Trial Court of Batangas City, Branch IV, is
hereby AFFIRMED with the MODIFICATION that exemplary damages in
the amount of ₱25,000.00 should also be awarded. 39
Appellant elevated the instant case before us assigning a single error, to
wit:
THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED-
APPELLANT GUILTY OF THE CRIME CHARGED DESPITE FAILURE OF
THE PROSECUTION TO ESTABLISH HIS GUILT BEYOND
REASONABLE DOUBT. 40
Appellant maintains in his lone assigned error that his testimony and that of
his corroborating witness, Ravino, were more credible than the testimonies
of Anacleto and Antonette; that his denial and alibi were meritorious; and
that the mitigating circumstance of voluntary surrender should be
appreciated in his favor.
In resolving issues pertaining to the credibility of the witnesses, this Court
is guided by the following well-settled principles: (1) the reviewing court will
not disturb the findings of the lower court, unless there is a showing that it
overlooked, misunderstood or misapplied some fact or circumstance of
weight and substance that may affect the result of the case; (2) the findings
of the trial court on the credibility of witnesses are entitled to great respect
and even finality, as it had the opportunity to examine their demeanor
when they testified on the witness stand; and (3) a witness who testifies in
a clear, positive and convincing manner is a credible witness. 41
After carefully reviewing the evidence on record and applying the foregoing
guidelines to this case, we found no cogent reason to overturn the RTC’s
ruling finding the testimonies of Anacleto and Antonette credible. As an
eyewitness to the incident, Anacleto positively identified appellant as the
one who shot Inspector Barte with a short firearm. He was merely one
arm’s length from Inspector Barte and one meter away from appellant
during the incident. In addition, the crime scene was well-lighted by a
nearby lamp post and lights coming from the videoke bar which enabled
him to recognize appellant. Further, he was familiar with the face of
appellant because the latter was his barriomate. Anacleto’s direct account
of how appellant shot Inspector Barte is candid and convincing, thus:
Q: Now, while you were outside the [videoke] restaurant at around 9:15 in
the evening of August 24, 2002, do you remember any untoward incident
that happened thereat?
A: Yes, sir.
Q: What was that particular incident?
A: The shooting of Major Barte (Inspector Barte), sir.
Q: Who shot Major Barte?
A: Agripino Guevarra y Mulingtapang alias "Boy Dunggol."
Q: How did it happen that accused was there at that time and said place?
A: I did not notice where he came from, he suddenly appeared.
Q: After he suddenly appeared, what did the accused do?
A: He approached Major Barte and asked "are you Major Barte?" and
afterwards he fired shots at Major Barte.
Q: Was Major Barte able to answer that question of the accused to him?
A: No ma’am.
Q: What happened to Major Barte after having (sic) shot by the accused?
A: I saw him slumped on his seat on the car, bloodied.
Q: How far were you from Major Barte at that time?
A: About one arm[’s] length, ma’am. x x x x
Q: Now, you said Agripino Guevarra is the one who shot to death Major
Barte, if he is in Court this morning, would you be able to identify him?
A: Yes, ma’am.
Q: Would you please point to him?
A: (Note: Witness is pointing to the man wearing a yellow shirt seated in
the front row of the Courtroom who answers by the name of Agripino
Guevarra when he was asked by the Court). 42 x x x x
Q: You stated that while you were talking with Major Barte when the latter
was sitted (sic) in the front seat, the accused suddenly appeared?
A: Yes, sir.
Q: Where did he suddenly appear, from your right or left?
A: From my right side, sir.
Q: Where was he at that time in relation to the jeep?
A: On the right side of the jeep, sir.
Q: You are also on the right side of the jeep? Q: When you say you heard four (4) shots you mean to say you did not see
him fired (sic) his gun?
A: Yes, sir.
A: I saw it, sir. 44
Q: You are also 1 ½ meters from the jeep?
Antonette’s testimony, corroborating the foregoing testimony of Anacleto,
A: No sir. was also clear and reliable. Being an eyewitness to the incident, she
pointed to appellant as the one who shot Inspector Barte. Her narration of
Q: How far were you from the jeep? the incident is truthful, to wit:

A: More or less one (1) arm length, sir. Q: After Major Barte occupied the front seat at the right [side] of the driver
and your husband was about to board the jeep, what happened next, if
any?
Q: How far was the accused in this case when you first saw him?
A: I heard that gunshot, ma’am.
A: We were both on the same distance from the jeep, sir.
Q: Upon hearing that gunshot, what did you do?
Q: After you saw the accused suddenly appeared on your right side you
also saw him put up his gun?
A: I turned my head where the gunshot came from, ma’am.
A: No sir.
Q: And what did you find out?
Court:
A: I saw a man shooting a man riding at the right side of the vehicle,
ma’am.
Q: How about you, how far are you from the accused when you first saw
him?
Q: Who was being shot by that person?
A: Almost one (1) meter, sir.  x x x x
43

A: Major Barte, ma’am.

Q: You stated last time that when the accused asked if he is Major Barte
the accused immediately shot Major Barte, is that correct? Q: Did you recognize who [shot] Major Barte?

A: Yes, sir. A: Yes, ma’am.

Q: You also stated that the accused shot him five (5) times? Q: Who is that person?

A: No, sir. A: Mr. Agripino Guevarra, ma’am. x x x x

Q: How many times did the accused shoot Major Barte? Q: You said that you saw Agripino Guevarra shooting Major Barte, do you
know this Agripino Guevarra?
A: I heard four (4) shots, sir.
A: Yes, ma’am.
Q: Even before this date?
A: Yes, ma’am. Being a native of this barangay and I have been a
barangay councilwoman and he became also a barangay tanod.
Q: If he [is] present in Court this afternoon, would you able to identify him?
A: Yes, ma’am.
Q: Would you please point to him?
A: (Witness is pointing to a man wearing a yellow shirt who answers by the
name of Agripino Guevarra when he was asked by the Court). 45
Further, the foregoing testimonies are consistent with documentary and
object evidence submitted by the prosecution. The RTC and the Court of
Appeals found the testimonies of Anacleto and Antonette to be clear and
credible.
Denial is inherently a weak defense as it is negative and self-serving.
Corollarily, alibi is the weakest of all defenses for it is easy to contrive and
difficult to prove. 46 Denial and alibi must be proved by the accused with
clear and convincing evidence otherwise they cannot prevail over the
positive testimony of credible witnesses who testify on affirmative
matters. 47 For alibi to prosper, it is not enough for the accused to prove
that he was somewhere else when the crime was committed. He must
likewise prove that it was physically impossible for him to be present at the
crime scene or its immediate vicinity at the time of its commission. 48
Appellant testified that he was vacationing in Africa’s house at Barangay
Malad, Calapan City, Oriental Mindoro at the time (9:15 p.m.) and date (24
August 2002) of the incident. Ravino claimed that, upon arriving at Africa’s
house in Calapan Oriental, Mindoro at about 5:30 p.m. of the day of the
incident, he saw appellant there. Ravino then proceeded to fix Africa’s car.
After fixing Africa’s car, he, Africa and appellant had a drinking spree until
11:00 p.m. of the same day. Be that as it may, Ravino neither categorically
stated nor confirmed that appellant was present in Africa’s house from the
time he was fixing Africa’s car at past 5:30 p.m. up to the time he was done
with it which was before 11:00 p.m. As mentioned earlier, Ravino merely
claimed that he saw appellant in Africa’s house at about 5:30 p.m. and
after fixing Africa’s car, he, Africa and appellant had a drinking spree until
11:00 p.m. Thus, it was highly possible that since Ravino’s sight was
directed or focused on Africa’s car as he was fixing it, he did not notice
appellant’s departure from Africa’s house at past 5:30 p.m. Appellant then
proceeded to the videoke bar of Sgt. Vidal in Barangay Kumintang Ibaba,
Batangas City, where he killed Inspector Barte at around 9:15 p.m. It was
also probable that Ravino did not notice appellant’s subsequent arrival in
Africa’s house, which was before 11:00 p.m., from the crime scene
because he was still busy fixing Africa’s car. The foregoing view is
bolstered by appellant’s admission that it would only take him 45 minutes
to reach Calapan City, Oriental Mindoro from the Batangas pier via a
"Supercat" boat. 49 There was, therefore, a great possibility that appellant
was present at the scene of the crime when it was committed at about 9:15
p.m. of 24 August 2002. Thus, the defense failed to prove that it was
physically impossible for appellant to be at or near the crime scene when
the incident occurred. Besides, we have held that an alibi becomes less
plausible as a defense when it is corroborated only by relatives or friends
of the accused. 50
We agree with the RTC and the Court of Appeals that the qualifying
circumstance of treachery and the special aggravating circumstance of use
of an unlicensed firearm attended the killing of Inspector Barte.
It is settled that aggravating/qualifying circumstances must be alleged in
the information and proven during the trial before they can be
appreciated. 51
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 any defensive or retaliatory act which the victim might
make. 52 The essence of treachery is a deliberate and sudden attack that
renders the victim unable and unprepared to defend himself by reason of
the suddenness and severity of the attack. Two essential elements are
required in order that treachery can be appreciated: (1) The employment of
means, methods or manner of execution that would ensure the offender’s
safety from any retaliatory act on the part of the offended party who has,
thus, no opportunity for self-defense or retaliation; and (2) deliberate or
conscious choice of means, methods or manner of execution. 53
In the case at bar, treachery was alleged in the information and all its
elements were duly established by the prosecution.
Inspector Barte was sitting inside the jeep when appellant suddenly
appeared and approached him. Appellant asked Inspector Barte if he was
"Major Barte." However, before Inspector Barte could respond or utter a
word, appellant quickly shot him several times in the head and chest with a
caliber .45 pistol. The suddenness and unexpectedness of the appellant’s
attack rendered Inspector Barte defenseless and without means of escape.
There is no doubt that appellant’s use of a caliber .45 pistol, as well as his
act of waiting for Inspector Barte to be seated first in the jeep before
approaching him and of shooting Inspector Barte several times on the
head and chest, was adopted by him to prevent Inspector Barte from
retaliating or escaping. Considering that Inspector Barte was tipsy or drunk
and he was seated inside the jeep where the space is narrow, there was
absolutely no way for him to defend himself or escape.
Pertinent provision of Presidential Decree No. 1866, as amended by
Republic Act No. 8294, 54 states that if homicide or murder is committed
with the use of an unlicensed firearm, such use of an unlicensed firearm
shall be considered as an aggravating circumstance. Appellant’s use of an
unlicensed firearm in killing Inspector Barte was alleged in the information
as a special aggravating circumstance. Such circumstance was also duly
proven by the prosecution during the trial. The prosecution presented a
certification from the PNP Firearms and Explosives Division which attests
that appellant was not a licensed/registered firearm holder. 55
Appellant’s assertion that he was entitled to the mitigating circumstance of
voluntary surrender is meritorious. For voluntary surrender to be
appreciated as a mitigating circumstance, the following requisites must
concur: (1) that the offender had not been actually arrested; (2) that the
offender surrendered himself to a person in authority; and (3) that the
surrender was voluntary. 56
All of the foregoing requisites are present in the case at bar. Appellant had
not been actually arrested by the police or other law enforcers. He
surrendered unconditionally to the mayor of Batangas City, a person in
authority, thereby saving the police trouble and expenses which it would
otherwise incur in his search and capture. The fact that appellant
surrendered two weeks after the incident is immaterial. We have held that
for voluntary surrender to mitigate an offense, it is not required that the
accused surrender at the first opportunity. 57 As long as the aforementioned
requisites are met, voluntary surrender can be appreciated. 58
We shall now determine the propriety of the penalties imposed on
appellant.
Article 248 of the Revised Penal Code states that murder is punishable
by reclusion perpetua to death. Article 63(4) of the same Code provides
that if the penalty is composed of two indivisible penalties, as in this case,
and both mitigating and aggravating circumstances attended the
commission of the crime, the courts shall reasonably allow them to offset
one another in consideration of their number and importance. As earlier
determined, the mitigating circumstance of voluntary surrender and the
aggravating circumstances of treachery and use of an unlicensed firearm
were present in the instant case. Nonetheless, the aggravating
circumstance of treachery in this case cannot be applied for offsetting
because it was already considered as a qualifying circumstance. 59 Thus,
only the aggravating circumstance of use of an unlicensed firearm may be
utilized in offsetting the mitigating circumstance of voluntary surrender.
We stated earlier that the use of an unlicensed firearm in murder is
a special aggravating circumstance and not merely a generic aggravating
circumstance. As such, it cannot be offset by an ordinary mitigating
circumstance such as voluntary surrender. 60 Thus, the only modifying
circumstance remaining in the present case is the special aggravating
circumstance of use of an unlicensed firearm. Article 63(1) of the Code
provides that if the penalty is composed of two indivisible penalties, as in
this case, and there is present only one aggravating circumstance, the
greater penalty shall be applied. Consequently, the penalty imposable on
appellant is death. However, with the effectivity of Republic Act No. 9346
entitled, "An Act Prohibiting the Imposition of Death Penalty in the
Philippines," the imposition of the capital punishment of death has been
prohibited. Pursuant to Section 2 thereof, the penalty to be meted to
appellant shall be reclusion perpetua. Said section reads:
SECTION 2. In lieu of the death penalty, the following shall be imposed:
(a) the penalty of reclusion perpetua, when the law violated makes use of
the nomenclature of the penalties of the Revised Penal Code; or
(b) the penalty of life imprisonment, when the law violated does not make
use of the nomenclature of the penalties of the Revised Penal Code.
Notwithstanding the reduction of the penalty imposed on appellant, he is
not eligible for parole following Section 3 of said law which provides:
SECTION 3. Persons convicted of offenses punished with reclusion
perpetua, or whose sentences will be reduced to reclusion perpetua, by
reason of this Act, shall not be eligible for parole under Act No. 4103,
otherwise known as the Indeterminate Sentence Law, as amended.
Hence, the RTC and the Court of Appeals were correct in imposing the = 2/3 (34) x (₱371,784.00 – ₱185,892.00)
penalty of reclusion perpetua on appellant. = 2/3 (34) x ₱185,892.00.
= ₱4,213,551.00.
As to damages, both courts acted accordingly in awarding civil
indemnity 61 to the heirs of Inspector Barte since the award of this damage Hence, the amount of ₱4,212,312.72 awarded to the heirs of Inspector
is mandatory in murder cases. 62 Nevertheless, the amount of ₱50,000.00 Barte as indemnity for the latter’s loss of earning capacity should be
imposed as civil indemnity should be increased to ₱75,000.00 based on increased to ₱4,213,551.00.
prevailing jurisprudence. 63 In People v. Quiachon, 64 we explained that
even if the penalty of death is not to be imposed on accused because of In addition to the damages awarded, we also impose on all the amounts of
the prohibition in Republic Act No. 9346, the civil indemnity of ₱75,000.00 damages an interest at the legal rate of 6% from this date until fully paid. 72
is still proper as the said award is not dependent on the actual imposition
of the death penalty but on the fact that qualifying circumstances WHEREFORE, after due deliberation, the Decision of the Court of Appeals
warranting the imposition of the death penalty attended the commission of in CA-G.R. CR H.C. No. 02367, dated 16 October 2007, is
the offense. In the instant case, the qualifying circumstance of treachery hereby AFFIRMED with the following MODIFICATIONS: (1) the civil
and the special aggravating circumstance of use of unlicensed firearm indemnity of appellant is increased from ₱50,000.00 to ₱75,000.00; (2) the
attended the killing of Inspector Barte. These circumstances were duly indemnity for Inspector Barte’s loss of earning capacity is increased from
alleged in the information and proven during the trial. ₱4,212,312.72 to ₱4,213,551.00; and (3) an interest on all the damages
awarded at the legal rate of 6% from this date until fully paid is imposed.
The award of moral damages in the amount of ₱50,000.00 is proper in
view of the violent death of Inspector Barte and the resultant grief to his
family. 65 Likewise, the award of exemplary damages in the amount of
₱25,000.00 is in order because the killing of Inspector Barte was
committed with the aggravating circumstances of treachery and use of an
unlicensed firearm. 66 Also, the award of ₱109,250.00 as actual damages is
appropriate since these were supported by official receipts attached on
records. 67

The heirs of Inspector Barte should also be indemnified for loss of earning
capacity pursuant to Article 2206 of the New Civil Code. 68 Consistent with
our previous decisions, 69 the formula for the indemnification of loss of
earning capacity is:

Net Earning Capacity = 2/3 x (80 less the age of the victim at the time of
death) x (Gross Annual Income less the Reasonable and Necessary Living
Expenses)51

Inspector Barte’s death certificate states that he was 46 years old at the
time of his demise. 70 The pay slip issued by the PNP, Camp Crame,
Quezon City, to Inspector Barte for August 2002 shows that the latter was
earning an annual gross income of ₱371,784.00. 71

Applying the above-stated formula, the indemnity for the loss of earning
capacity of Inspector Barte is ₱4,213,551.00, computed as follows:
G.R. No. 137404             February 14, 2003
PEOPLE OF THE PHILIPPINES, appellee, vs.
JOSE CASITAS JR., appellant.
PANGANIBAN, J.:
Qualifying and aggravating circumstances must be proven as clearly as the
crime itself. In any event, even if they are established beyond reasonable
doubt, they cannot be appreciated unless they are alleged in the
information, pursuant to the current Rules on Criminal Procedure. This is a
requirement of due process.
The Case
For automatic review before this Court is the January 15, 1999 Decision of
1 
the Regional Trial Court (RTC) of Tabaco, Albay (Branch 15) in Criminal
Case No. T-2970, finding Jose Casitas Jr. y Cea guilty of murder and
sentencing him to death. The dispositive portion of the Decision reads as
follows:
"WHEREFORE, judgment is hereby rendered finding the accused JOSE
CASITAS, JR. y CEA alias ‘BOBOY’ guilty beyond reasonable doubt of the
crime of MURDER as defined and penalized under Art. 248 of the Revised
Penal Code, as amended by Rep. Act 7659 with the aggravating
circumstance of the commission of the crime in the dwelling of the
offended party under par. 3 Art. 14, Revised Penal Code, and hereby
sentences him to suffer the supreme penalty of DEATH.
"Additionally, the accused is hereby ordered to pay the heirs of Haide
Marbella the sum of ₱50,000.00 as civil liability."
2
In an Information dated June 25, 1998 and filed in the RTC on July 3,
1998, appellant was charged in these words:
3 
"That on or about the 25th of March 1998 at 8:00 o’clock in the morning,
more or less, at Karangahan Blvd., Barangay Bombon, Municipality of
Tobaco, Province of Albay, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, with intent to kill, while armed
with a bladed weapon, with evident premeditation, taking advantage of
superior strength, and with cruelty, did then and there willfully, unlawfully
and feloniously assault, attack and stab HAIDE BOMBALES-MARBELLA,
thereby inflicting upon the latter mortal wounds on the different parts of her
body which caused her painful death, to the damage and prejudice of her
heirs."
4
During his arraignment on July 28, 1998, appellant, with the assistance of
his counsel, pleaded not guilty. After pretrial and due trial, the court a quo
5  6 
rendered the assailed Decision.
The Facts
Version of the Prosecution
In its Brief, the Office of the Solicitor General (OSG) presents the
prosecution’s version of the facts as follows:
"At around 7:30 o’clock in the morning of March 2[5], 1998, at Karangahan,
Bombon, Tabaco, Albay, appellant Jose Casitas, Jr., also known as Boboy,
was at the store of Romeo Briones. This store is located near the house of
Mario Chan, the house where Haide Marbella was working as caretaker.
"Appellant and Romeo Briones were able to converse for about 20
minutes. During their conversation, appellant showed Romeo the 3 25-
centavo coins which he had and said, ‘and lakaw kong ini sapalaran x x x
(this venture of mine is being taken on a chance).[’]
"Thereafter, Romeo turned away and lay down on the table. He never
noticed when appellant left his store.
"Nearby, Corazon Goyena passed by the store of Romeo Briones going
towards the Jasmin Street for the purpose of dumping the sand piled at the
side of the road on the drainage. This pile of sand was on the road beside
the house of Mario Chan.
"While she was proceeding to the pile of sand, Corazon saw Haide
standing in the middle of the road near the steel gate of the house of Mario
Chan talking with Meriam Manzano.
"Seeing that Haide wanted to talk with her, Corazon went to the store of
Romeo and waited there for Haide. At the store, Haide asked Corazon if
the latter was willing to lend her ₱200.00 to which the latter agreed. Before
Haide left to go back to the house of Mario Chan, she looked at appellant
who was still at the store.
"Thereafter, Corazon followed Haide to borrow the shovel which she would
use for the pile of sand. She then proceeded towards the pile of sand and
began to shovel sand to a pail and dumped it on the drainage.
"After 3 trips, Corazon felt thirsty. As the house of Mario Chan was the
closest house, she went there to ask Haide for cold drinking water.
"Calling out to Haide, Corazon decided to enter the compound as there
was no answer from inside the house. Since the gate and the door to the
house were not locked, Corazon entered the house to look for Haide.
Again, she called for Haide but still she did not get any response.
"Looking inside the room of Haide, Corazon saw that there was nobody
there. So, she proceeded towards the kitchen of the house of Mario Chan.
"At the kitchen, she saw Haide sprawled on the kitchen floor lying face
down and bloodied. Surprised, Corazon ran outside and asked for help
from Romeo.
"On the other side of the house of Mario Chan, Nemesio Capiz, the house
boy of Gerardo Musa Jr., while bringing out a gas tank to the car of latter,
saw a man inside the compound of the residence of Mario Chan.
"At a distance of about 25 meters, Nemesio saw the man looking from side
to side and then jumped over the fence. Then, this man casually walked
away from the house of Mario Chan tucking in his shirt inside his pants.
Nemesio noticed that the man’s shirt was bloodied and very red and the
edge of his pants [was] red. Nemesio recognized this man to be appellant.
"However, Nemesio did not mind appellant. Instead, he went back to the
house of Gerardo Musa and informed the latter that he saw a man jumping
from the fence of the house of Mario Chan and that the man’s shirt and
pants were very red. Thereafter, he went to the pigsty and continued to
work.
"Outside the house of Mario Chan, Remegio Almonte, Jr. saw the
commotion and entered the house of Mario Chan. There, he saw the
bloodied cadaver of Haide. He suggested that the cadaver be brought to
the hospital and one man lifted the cadaver and brought it outside.
Outside, people commented that there were many stab wounds on the
neck of Haide. Remegio tried to look for clues about the murder but he
found nothing. Then he decided to go home.
"The autopsy report issued by Dr. Audwin Adaza enumerated around 17
wounds suffered by Haide Marbella. The cause of death was hemorrhagic
shock secondary to multiple stab wounds. x x x" 7
Version of the Defense
On the other hand, appellant invokes denial and alibi as defenses. We
quote from his Brief as follows:
"The defense presented the oral testimonies of Gerondina Casitas and
Jose Casitas, Jr.
"[Gerondina Casitas] testified that on March 25, 1998, between 7:00 to
7:30 a.m., Jose Casitas, Jr. was preparing and packing his clothes
because he was busy going to Manila. But before going to Manila, he will
[pass] by Legaspi City where he will get the money she borrowed from
Angelo Orenze. At around 9:30 to 10:00 a.m., two (2) policemen came by
the house to inquire about the whereabouts of Jose, to which she
answered that he already left for Manila. The two (2) policemen came back
at around 10:30 or 11:00 a.m. and asked for a picture of his son, to which
she obliged and gave them an ID of her son. After the policemen left, she
noticed a commotion outside. Upon inquiry, she learned from a neighbor
that Haide was killed and that there was plenty of blood which caused her
to be nervous.
"The last witness is Jose Casitas, Jr. He testified that at around 6:00 a.m.,
March 25, 1998, he woke up and ate his breakfast because he was leaving
for Manila. But before proceeding to Manila, he dropped by Legaspi, Albay
to get the money which his mother was borrowing from Angelo Orense[.]
He waited for Angelo Orense up to 12:00 noon of the same day. He left
Legaspi at around 6:00 p.m. and arrived in Manila at around 4:00 o’clock
a.m. the next day, March 26, 1998. He proceeded to the house of his
cousin, Benjur Camu, but since his cousin [was] not around, he proceeded
to the house of his aunt Adoracion, in Cogeo. He stayed there for three (3)
days. In the morning of March 28, 1998, while he was at the house of his
half-brother, Roberto Casitas, two (2) men arrived and asked his aunt if he
was around. The smaller of the two (2) men asked him whether he was
‘Boboy Casitas’ and he answered yes. They told him they have a warrant
of arrest for him and he asked them to show him the warrant. When he
was about to [approach] them, the big man fired at him and he was hit at
his left leg. He decided to [run] because of fear and he entered a house to
hide. The two (2) men found him inside the house while sitting beside the
bed. He was brought to the E. Rodriguez Hospital for treatment of his
wound and after which he was detained at the Quezon City jail. On March
28, 1998, he was brought back to Tabaco and detained at the Municipal
Jail of Tabaco. He said that there are several persons in their
neighborhood who [fit] the description given by Nemesio Capiz, Jr., of the
person whom [the latter] saw jumping out of the Chan’s compound, aside
from [appellant]." (Citations omitted)
8 
Ruling of the Trial Court
The RTC convicted appellant of murder on the basis of circumstantial
evidence pointing to him as the perpetrator of the crime. To support its
finding of guilt, the trial court enumerated specific factual circumstances
relative to his whereabouts and actuations before and after the commission
of the crime.
In particular, the trial court noted his presence in the immediate vicinity of
the crime scene prior to the discovery of the victim’s body. It noted, as well,
that he was identified as the man who had jumped over the fence from
inside the house where the body was found. It also took into account how
he had precariously climbed over the fence and suspiciously looked from
side to side to check if there were other people around.
Likewise, the trial court considered physical evidence like the bloodied
lower front portion of the shirt of appellant who, while leaving the house,
had been seen by one of the witnesses. It also mentioned that the main
gate of the house was open, so the former could have conveniently exited
through that gate, if he was not escaping or hiding something.
Moreover, the trial court considered the following circumstances as
indicative of the guilt of appellant: his hasty departure for Manila, his act of
running away and hiding from the authorities for almost one hour after he
was shown a warrant of arrest, and his restless demeanor before the
witness stand.
The trial court ruled that the killing had been attended by the qualifying
circumstance of superior strength. It also appreciated the aggravating
circumstance of dwelling, since the victim had been killed inside the house
where she was staying, as shown by traces of blood found in the kitchen.
Hence, this automatic review. 9 accused, to the exclusion of all others, is the one who has committed the
The Issues
In his Brief, appellant raises the following alleged errors for our
consideration:
"I "The lower court erred in relying mainly on circumstan[t]ial [evidence]
presented by the prosecution as basis for the conviction of the accused.
"II "The lower court erred in finding the accused guilty beyond reasonable
doubt of the crime of murder as defined and penalized under Article 248
of the Revised Penal Code as amended by RA 7659." 10
The Court’s Ruling
We affirm the trial court’s finding of guilt, but rule that the crime committed
was only homicide and not murder.
First Issue:
Sufficiency of the Prosecution’s Evidence
Appellant argues that the prosecution’s evidence is insufficient to prove his
guilt beyond reasonable doubt. While he does not deny the death of the
victim, he disclaims any participation or involvement in it. Moreover, he
avers that the trial court erroneously relied on circumstantial evidence in
convicting him.
Circumstantial Evidence Sufficient to Convict
At the outset, we may well emphasize that direct evidence of the
commission of a crime is not the only basis on which a court draws its
finding of guilt. Established facts that form a chain of circumstances can
lead the mind intuitively or impel a conscious process of reasoning towards
a conviction. Certainly, rules on evidence and principles in jurisprudence
11 
sustain the conviction of the accused through circumstantial evidence. 12
The following are the requisites for circumstantial evidence to be sufficient
for a conviction: (a) there is more than one circumstance, (b) the facts from
which the inferences are derived have been proven, and (c) the
combination of all the circumstances results in a moral certainty that the
crime. Thus, to justify a conviction based on circumstantial evidence, the
13 
combination of circumstances must be interwoven in such a way as to
leave no reasonable doubt as to the guilt of the accused. 14
After a careful review of the records of the case, we find that the
circumstantial evidence presented by the prosecution is sufficient to
identify him as the author of the killing. When viewed as a whole, this
evidence effectively establishes his guilt beyond reasonable doubt.
Specifically, the combination of the following established facts and
circumstances affirm the trial court’s finding of guilt:
First, appellant was in a store right in front of the house where the
crime was committed, just before the victim was found dead.
Second, he was seen climbing over the fence of the house where the
murder had occurred a few moments before.
Third, he was spotted walking away from the house while tucking in his
bloodied shirt.
Fourth, he was the only person seen leaving the house prior to the
discovery of the victim’s lifeless body.
Fifth, he hastily left for Manila soon after the commission of the crime.
Sixth, he attempted to elude the police authorities until a warrant for his
arrest was presented to him.
Seventh, he was observed by the trial court to be restless and fidgety
during the course of his testimony.
It is worth noting that the failure of the prosecution to present eyewitnesses
to the actual killing does not ipso facto dispel appellant’s guilt. Otherwise,
15 
the prosecution of vicious felons who commit heinous crimes in secret or
secluded places will be hard, if not impossible, to prove. Indeed, resorting
to circumstantial evidence becomes essential when insisting on direct
testimony would invariably result in setting felons free.
16
In People v. Whisenhunt, the Court expounded on this matter thus:
17  against him at the soonest possible opportunity.
"While it may be true that there was no eyewitness to the death of [the
victim], the confluence of the testimonial and physical evidence against
accused-appellant creates an unbroken chain of circumstantial evidence
that naturally leads to the fair and reasonable conclusion that accused-
appellant was the author of the crime, to the exclusion of all others.
Circumstantial evidence may be resorted to in proving the identity of the
accused when direct evidence is not available, otherwise felons would go
scot-free and the community would be denied proper protection." 18
The accused may be convicted on the basis of circumstantial evidence,
when the circumstances constitute an unbroken chain leading to one fair
reasonable conclusion and pointing to the accused -- to the exclusion of all
others -- as the guilty person. The peculiarity of circumstantial evidence is
19 
that guilt cannot be deduced from scrutinizing just one particular piece of
evidence. Establishing it is akin to weaving a tapestry of events that
culminate in a vivid depiction of the crime of which the accused is the
author.20
The pieces of circumstantial evidence in the case at bar, when analyzed
and taken together, definitely lead to no other conclusion than that
appellant perpetrated the dastardly deed. 21
On the basis of the foregoing established facts, it can reasonably be
inferred that appellant was the only person inside the house with the victim
when the latter was brutally killed. Before the dead body was found, no
other person had been seen entering or leaving the house. The act of
appellant -- climbing over the fence of the house with his clothes soaked in
blood, coupled with the subsequent discovery of the dead body lying in a
pool of blood -- impels us to arrive at the logical conclusion that he was
responsible for the killing. If he truly had nothing to do with it, he would
have gone out through the gate of the house and immediately asked for
help from the neighbors. Instead, he left the victim sprawled in a dreadful
bloodbath and surreptitiously fled from the scene of the crime, hoping that
nobody would notice him leaving.
Furthermore, appellant immediately left for Manila when the police
authorities began to look for him. When he was finally located there, he
tried to run away again, even when the police had shown him a valid
warrant for his arrest. If he were really innocent of the charges as he
claims, he would have wasted no time in submitting himself to the
investigators, so that he would have a chance to disprove the accusations
To be sure, conviction in a criminal case does not entail absolute
certainty. What is required only is that degree of proof which, after an
22 
examination of the entire records of the case, produces in an unprejudiced were the two (2) x x x there?
mind moral certainty of the culpability of the accused.23

A: I and Boboy Casitas.

Finally, absent any showing that certain facts of substance and
significance have been overlooked by the trial court, or that its findings Q: This Boboy Casitas is the accused in this case?
have been arbitrary, the conclusions it arrives at must be respected and its
judgment based thereon affirmed. 24
A: I do not know but we were the only two (2) talking together.

Defense of Alibi
For his part, appellant interposes denial and alibi as defenses. He claims
that it was impossible for him to have killed the victim, because he was at
home preparing for his departure for Manila when she was killed.
Q: Now, you said you were talking with somebody at around 7:30 in the
morning on March 25, 1998. To whom you were talking to is present in
the courtroom, will you please point at him?
(witness points to accused Boboy Casitas)

For his alibi to prosper, he must prove that he was somewhere else when Q: Now, what were you talking about?
the crime was committed, and that it was physically impossible for him to
have been at the crime scene at the time of its commission. 25

A: We talked for about twenty (20) minutes. He was holding three (3)
twenty-five (25) [centavo] coins and he said ‘ANG LAKAW KONG INI
Appellant insists that he was nowhere near the crime scene when the SAPALARAN.’ xxxx
murder was committed. However, his assertion was positively overturned
by the testimony of Prosecution Witness Romeo Briones, who said that he
PROSECUTOR BERANGO:Q: After accused, Jose Casitas[,] said these
had seen and even talked with the former in the vicinity around 7:30 a.m.
words, what happened next?
on March 25, 1998. Briones testified thus:
A: I did not mind anymore because he turned away from me. He remained
"Q: Now Mr. Briones, do you recall where you were on March 25, 1998 at
[seated] in front of the store of his aunt.
around 7:30 in the morning?
Q: [How about] you, what did you do?
A: I was at the store at around 7:30 in the morning.
A: I did not mind him. After he turned away I lie down on the table.
Q: Where is that store situated?
Q: After that what happened next?
A: In front where Haide Marbella resides.
A: After that, while I was lying on the table, I noticed Corazon Goyena
Q: Who were there aside from you, if any?
carrying a pail of sand. She carried around 3 pails of sand. After that, she
went x x x to get x x x ice when she felt thirsty in the house where Haide
A: We were the only two (2) there talking to each other. Marbella lives. x x x x x x x x x

Q: Who was the other persons aside from you who were there? Q: While you were lying down and this Corazon Goyena was carrying
three (3) pails of sand, where was Boboy then?
ATTY. GONZAGO: Objection, very leading.
A: He was no longer there in the place where we were talking." 26

PROSECUTOR BERANGO: Q: You said there were two (2) of you, who
Indubitably, appellant cannot rule out his presence at the scene of the
crime when the killing took place. He had been seen in a store right in
front of the house where the victim was found dead a few moments later.
The store owner testified that appellant even talked with him before
leaving the store immediately after their conversation. Later, around 8:00
a.m., as the latter was climbing over the fence of the house where the
victim was killed, he was seen by another witness, Nemesio Capiz, who
positively identified him as follows:
"Q: All right, in the morning of March 25, 1998 were you still there working
with the Mosas?
A: Yes, sir.
Q: At about past 8:00 o’clock in the morning, what were you doing?
A: I was ordered by Mrs. Mosa to bring the gas tank to the store because
it was already empty.
Q: All right. While you were bringing out the gas tank what if any did you
see?
A: I saw ‘Boboy’ holding on the fence of the house of Haide Marbella,
inside.
Q: What kind of fence was it?
A: It was made of cement with iron grills.
Q: You mentioned the word, Boboy, how long have you known this person
before seeing him on that morning past 8:00 o’clock on March 25, 1998?
A: From the start of my employment at Mrs. Mosa.
Q: That was since the first week of April, 1997?
A: Yes, sir.
Q: Where did you see him?
A: At the store, sir.
Q: All right, since the time you entered the service of Mr. and Mrs. Mosa
how many time[s] have you seen Boboy?
A: Many time[s], sir.
Q: You mentioned his name is Boboy, don’t you know his full name then?
A: No, sir.
Q: If this Boboy is present in Court will you point to him?
A: Yes, sir.
Q: Will you point to him?
INTERPRETER: Witness points to a man in white shirt, who when asked
answered to the name of Jose Casitas, Jr.
Q: All right, seeing Boboy holding on to the rail what did you do?
A: I did not mind him.
Q: From the place where you saw him up to the point where he was
standing holding to the rail what was the distance more or less?
A: Fifteen meters, sir.
Q: Why could you see this person from the place where you were
standing?
A: The fence of Mrs. Mosa was made of bamboo tops and the place was
clear so I can see him clearly.
Q: Now having seen [him], what did you do?
ATTY. GONZAGA: Already answered.
[PROSECUTOR] BONTO: Q: And then what did you do?
A: I proceeded outside to board the gas tank.
Q: To where were you going to board the gas tank?
A: To the owner type jeep, sir.
Q: Belonging to whom?
A: Mrs. Mosa’s jeep, sir.
Q: And then while you are going to load it to the owner type jeep, what did
you see next if any?
A: Boboy stepped on the cement and jumped over the fence outside going
out coming from the inside.
Q: How far were you from Boboy during this second time that you saw
Boboy jumping from the fence?
A: Twenty[-]five meters, sir.
Q: And the moment this Boboy landed what did you notice if any?
A: His t-shirt was bloodied and very red.
Q: And what did he do with that front portion of his t-shirt?
A: He rolled it over and inserted it inside his pants.
Q: What else did you see?
A: The edge of his pants were red.
Q: And then what happened next?
A: He went away." 27
It is a hornbook doctrine that when credible witnesses positively identify the
accused as the perpetrator of the crime, the defense of alibi becomes
negative and self-serving. Moreover, an alibi that is unsubstantiated by
28 
clear and convincing evidence deserves no weight in law. It cannot be
given greater evidentiary value than the testimonies of credible witnesses
who testify on affirmative matters. Positive identification destroys the
29 
defense of alibi and renders it impotent, especially where such
identification is credible and categorical.
30
Second Issue:
Proper Penalty
While we uphold the trial court’s finding that appellant was criminally liable
for the killing of the victim, we do not agree with its conclusion that the
crime committed was murder.
The RTC qualified the killing to murder by appreciating the circumstance of
abuse of superior strength. Settled is the rule that such circumstance is
present whenever there is inequality of forces between the victim and the
aggressor, superior strength is advantageous for the aggressor, and the
latter takes advantage of it in the commission of the crime. 31
Under the facts, no one actually saw how the killing was perpetrated. No
evidence, whether direct or circumstantial, was presented to establish that
there had been inequality of strength between the appellant and the victim,
or that the former had purposely or consciously taken advantage of
superior strength in committing the crime. Thus, the RTC erroneously
relied on mere suppositions on the manner of the killing and improvidently
concluded that there was abuse of superior strength despite the lacuna of
evidence thereof.
Indeed, to qualify a killing to murder, the circumstances invoked must be
proven as indubitably as the killing itself. It cannot be deduced from mere
supposition.32
Likewise, we find that the RTC erred in appreciating the aggravating
circumstance of dwelling to justify the imposition of the death penalty. As a
general rule, dwelling is considered aggravating if the crime was committed
by the accused in the home of the offended party, and if the latter had not
provoked the former. 33
However, this Court has categorically ruled that when the aggravating
circumstance of dwelling is not alleged in the information, it cannot be
appreciated to raise the penalty from reclusion perpetua to death. Thus, in
34 
People v. Gallego, the Court ratiocinated in this wise:
35 
"In People v. Albert, we admonished courts to proceed with more care
where the possible punishment is in its severest form – death – because
the execution of such a sentence is irrevocable. Any decision authorizing
the State to take life must be as error-free as possible, hence it is the
bounden duty of the Court to exercise extreme caution in reviewing the
parties’ evidence. Safeguards designed to reduce to a minimum, if not
eliminate, the grain of human fault ought not to be ignored in a case
involving the imposition of the capital punishment for an erroneous
conviction ‘ will leave a lasting stain in our escutcheon of justice.’ The
accused must thence be afforded every opportunity to present his defense
on an aggravating circumstance that would spell the difference between
life and death in order for the Court to properly ‘exercise extreme caution in
reviewing the parties’ evidence.’ This, the accused can do only if he is
apprised of the aggravating circumstance raising the penalty imposable
upon him to death. Such aggravating circumstance must be alleged in the
information, otherwise the Court cannot appreciate it. The death sentence
being irrevocable, we cannot allow the decision to take away life to hinge
on the inadvertence or keenness of the accused in predicting what
aggravating circumstance will be appreciated against him." (Italics
36 
supplied)
In any case, it is worth noting that the Revised Rules on Criminal
Procedure, which took effect on December 1, 2000, now require that the
aggravating as well as the qualifying circumstances be expressly and
specifically alleged in the complaint or information. Otherwise, they cannot
be considered by the trial court, even if they are subsequently proved
during trial. The pertinent portions of Rule 110 of the Revised Rules are
37 
reproduced hereunder:
"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.
"SEC. 9. Cause of the accusation – The acts or omissions complained of
as constituting the offense and the qualifying and aggravating
circumstances must be stated in ordinary and concise language and not
necessarily in the language used in the statute but in terms sufficient to
enable a person of common understanding to know what offense is being
charged as well as its qualifying and aggravating circumstances and for the
court to pronounce judgment." (Emphasis supplied)

Certainly, the foregoing amendments which are favorable or beneficial to

appellant, should be applied retroactively inasmuch as procedural rules are
applicable to actions pending and undetermined at the time they were
approved.37-a

A perusal of the Information filed against appellant clearly shows that

dwelling was not alleged as an aggravating circumstance. Even assuming
that this circumstance was subsequently proven during trial, the lower
court was precluded from appreciating it because of the new requirement
under the rules. Accordingly, the penalty to be imposed on appellant
should be reclusion temporal in its medium period in accordance with
Article 249 of the RPC, which defines and penalizes the crime of homicide.
Applying the Indeterminate Sentence Law and considering the absence of
aggravating or mitigating circumstances, the proper penalty is prision
mayor in its medium period, as minimum; to reclusion temporal in its
medium period, as maximum. 38 
1a\^/phi1.net

Although the trial court correctly awarded ₱50,000 to the heirs of the victim
as civil indemnity, it failed to grant actual and moral damages, which were
prayed for and proven during the trial. An examination of the records of the
case will show that the defense agreed to the stipulation of ₱39,000 as
actual damages, which the heirs had spent for the funeral of the victim.
Moreover, the prosecution presented one of her children to prove the pain
and the moral anguish they had suffered by reason of her untimely
demise. 39

WHEREFORE, the automatically appealed Decision is hereby MODIFIED.

Appellant is found GUILTY of HOMICIDE and is sentenced to an
indeterminate penalty of eight (8) years and one (1) day of prision mayor
medium, as minimum; to 14 years eight (8) months and one (1) day of
reclusion temporal medium, as maximum. In accordance with prevailing
jurisprudence, he shall pay the heirs of the victim the amounts of ₱50,000
as civil indemnity, ₱50,000 as moral damages and ₱39,000 as actual
damages. No costs.
40 
G.R. No. 153559             June 8, 2004
PEOPLE OF THE PHILIPPINES, appellee, vs.
ANTONIO COMADRE, GEORGE COMADRE and DANILO
LOZANO, appellants.
PER CURIAM:
Appellants Antonio Comadre, George Comadre and Danilo Lozano were
charged with Murder with Multiple Frustrated Murder in an information
which reads:
That on or about the 6th of August 1995, at Brgy. San Pedro, Lupao,
Nueva Ecija, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring, confederating and
mutually helping one another, with intent to kill and by means of
treachery and evident premeditation, availing of nighttime to afford
impunity, and with the use of an explosive, did there and then willfully,
unlawfully and feloniously lob a hand grenade that landed and
eventually exploded at the roof of the house of Jaime Agbanlog
trajecting deadly shrapnels that hit and killed one ROBERT
AGBANLOG, per the death certificate, and causing Jerry Bullanday,
Jimmy Wabe, Lorenzo Eugenio, Rey Camat, Emelita Agbanlog and
Elena Agbanlog to suffer shrapnel wounds on their bodies, per the
medical certificates; thus, to the latter victims, the accused commenced
all the acts of execution that would have produced the crime of Multiple
Murder as consequences thereof but nevertheless did not produce
them by reason of the timely and able medical and surgical
interventions of physicians, to the damage and prejudice of the
deceased’s heirs and the other victims. CONTRARY TO LAW. 1
On arraignment, appellants pleaded "not guilty".2 Trial on the merits then
ensued.
As culled from the records, at around 7:00 in the evening of August 6,
1995, Robert Agbanlog, Jimmy Wabe, Gerry Bullanday, 3 Rey Camat and
Lorenzo Eugenio were having a drinking spree on the terrace of the house
of Robert’s father, Barangay Councilman Jaime Agbanlog, situated in
Barangay San Pedro, Lupao, Nueva Ecija. Jaime Agbanlog was seated on
the banister of the terrace listening to the conversation of the companions
of his son.4
As the drinking session went on, Robert and the others noticed appellants
Antonio Comadre, George Comadre and Danilo Lozano walking. The three
stopped in front of the house. While his companions looked on, Antonio
suddenly lobbed an object which fell on the roof of the terrace. Appellants
immediately fled by scaling the fence of a nearby school. 5
The object, which turned out to be a hand grenade, exploded ripping a hole
in the roof of the house. Robert Agbanlog, Jimmy Wabe, Gerry Bullanday,
Rey Camat and Lorenzo Eugenio were hit by shrapnel and slumped
unconscious on the floor.6 They were all rushed to the San Jose General
Hospital in Lupao, Nueva Ecija for medical treatment. However, Robert
Agbanlog died before reaching the hospital.7
Dr. Tirso de los Santos, the medico-legal officer who conducted the
autopsy on the cadaver of Robert Agbanlog, certified that the wounds
sustained by the victim were consistent with the injuries inflicted by a
grenade explosion and that the direct cause of death was hypovolemic
shock due to hand grenade explosion.8 The surviving victims, Jimmy
Wabe, Rey Camat, Jaime Agbanlog and Gerry Bullanday sustained
shrapnel injuries.9
SPO3 John Barraceros of the Lupao Municipal Police Station, who
investigated the scene of the crime, recovered metallic fragments at the
terrace of the Agbanlog house. These fragments were forwarded to the
Explosive Ordinance Disposal Division in Camp Crame, Quezon City,
where SPO2 Jesus Q. Mamaril, a specialist in said division, identified them
as shrapnel of an MK2 hand grenade. 10
Denying the charges against him, appellant Antonio Comadre claimed that
on the night of August 6, 1995, he was with his wife and children watching
television in the house of his father, Patricio, and his brother, Rogelio. He
denied any participation in the incident and claimed that he was surprised
when three policemen from the Lupao Municipal Police Station went to his
house the following morning of August 7, 1995 and asked him to go with
them to the police station, where he has been detained since.11
Appellant George Comadre, for his part, testified that he is the brother of
Antonio Comadre and the brother-in-law of Danilo Lozano. He also denied
any involvement in the grenade-throwing incident, claiming that he was at
home when it happened. He stated that he is a friend of Rey Camat and
Jimmy Wabe, and that he had no animosity towards them whatsoever.
Appellant also claimed to be in good terms with the Agbanlogs so he has
no reason to cause them any grief.12
Appellant Danilo Lozano similarly denied any complicity in the crime. He
declared that he was at home with his ten year-old son on the night of
August 6, 1995. He added that he did not see Antonio and George
Comadre that night and has not seen them for quite sometime, either
before or after the incident. Like the two other appellants, Lozano denied
having any misunderstanding with Jaime Agbanlog, Robert Agbanlog and
Jimmy Wabe.13
Antonio’s father, Patricio, and his wife, Lolita, corroborated his claim that
he was at home watching television with them during the night in
question.14 Josie Comadre, George’s wife, testified that her husband could
not have been among those who threw a hand grenade at the house of the
Agbanlogs because on the evening of August 6, 1995, they were resting
inside their house after working all day in the farm. 15
After trial, the court a quo gave credence to the prosecution’s evidence and
convicted appellants of the complex crime of Murder with Multiple
Attempted Murder,16 the dispositive portion of which states:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:
1. Finding accused Antonio Comadre, George Comadre and Danilo
Lozano GUILTY beyond reasonable doubt of the complex crime of
Murder with Multiple Attempted Murder and sentencing them to suffer
the imposable penalty of death;
2. Ordering Antonio Comadre, George Comadre and Danilo Lozano to
pay jointly and severally the heirs of Robert Agbanlog P50,000.00 as
indemnification for his death, P35,000.00 as compensatory damages
and P20,000.00 as moral damages;
3. Ordering accused Antonio Comadre, George Comadre and Danilo
Lozano to pay jointly and severally Jimmy Wabe, Rey Camat, Gerry
Bullanday and Jaime Agbanlog P30,000.00 as indemnity for their
attempted murder.
Costs against the accused. SO ORDERED.
Hence, this automatic review pursuant to Article 47 of the Revised Penal
Code, as amended. Appellants contend that the trial court erred: (1) when
it did not correctly and judiciously interpret and appreciate the evidence
and thus, the miscarriage of justice was obviously omnipresent; (2) when it
imposed on the accused-appellants the supreme penalty of death despite
the evident lack of the quantum of evidence to convict them of the crime
charged beyond reasonable doubt; and (3) when it did not apply the law
and jurisprudence for the acquittal of the accused-appellants of the crime
charged.17
Appellants point to the inconsistencies in the sworn statements of Jimmy
Wabe, Rey Camat, Lorenzo Eugenio and Gerry Bullanday in identifying the
perpetrators. Wabe, Camat and Eugenio initially executed a Sinumpaang
Salaysay on August 7, 1995 at the hospital wherein they did not
categorically state who the culprit was but merely named Antonio Comadre
as a suspect. Gerry Bullanday declared that he suspected Antonio
Comadre as one of the culprits because he saw the latter’s ten year-old
son bring something in the nearby store before the explosion occurred.
On August 27, 1995, or twenty days later, they went to the police station to
give a more detailed account of the incident, this time identifying Antonio
Comadre as the perpetrator together with George Comadre and Danilo
Lozano.
A closer scrutiny of the records shows that no contradiction actually exists,
as all sworn statements pointed to the same perpetrators, namely, Antonio
Comadre, George Comadre and Danilo Lozano. Moreover, it appears that
the first statement was executed a day after the incident, when Jimmy
Wabe, Rey Camat and Lorenzo Eugenio were still in the hospital for the
injuries they sustained. Coherence could not thus be expected in view of
their condition. It is therefore not surprising for the witnesses to come up
with a more exhaustive account of the incident after they have regained
their equanimity. The lapse of twenty days between the two statements is
immaterial because said period even helped them recall some facts which
they may have initially overlooked.
Witnesses cannot be expected to remember all the details of the harrowing
event which unfolded before their eyes. Minor discrepancies might be
found in their testimony, but they do not damage the essential integrity of
the evidence in its material whole, nor should they reflect adversely on the
witness’ credibility as they erase suspicion that the same was
perjured.18 Honest inconsistencies on minor and trivial matters serve to
strengthen rather than destroy the credibility of a witness to a crime,
especially so when, as in the instant case, the crime is shocking to the
conscience and numbing to the senses.19
Moreover, it was not shown that witnesses Jimmy Wabe, Rey Camat,
Lorenzo Eugenio and Gerry Bullanday had any motive to testify falsely
against appellants. Absent evidence showing any reason or motive for
prosecution witnesses to perjure, the logical conclusion is that no such
improper motive exists, and their testimony is thus worthy of full faith and
credit.
The trial court is likewise correct in disregarding appellants’ defense of alibi
and denial. For the defense of alibi to prosper, the accused must prove not
only that he was at some other place at the time of the commission of the
crime but also that it was physically impossible for him to be at the locus
delicti or within its immediate vicinity.20
Apart from testifying with respect to the distance of their houses from that
of Jaime Agbanlog’s residence, appellants were unable to give any
explanation and neither were they able to show that it was physically
impossible for them to be at the scene of the crime. Hence, the positive
identification of the appellants by eyewitnesses Jimmy Wabe, Jaime
Agbanlog, Rey Camat and Gerry Bullanday prevails over their defense of
alibi and denial.21
It was established that prior to the grenade explosion, Rey Camat, Jaime
Agbanlog, Jimmy Wabe and Gerry Bullanday were able to identify the
culprits, namely, appellants Antonio Comadre, George Comadre and
Danilo Lozano because there was a lamppost in front of the house and the
moon was bright.22
Appellants’ argument that Judge Bayani V. Vargas, the Presiding Judge of
the Regional Trial Court of San Jose City, Branch 38 erred in rendering the
decision because he was not the judge who heard and tried the case is not
well taken.
It is not unusual for a judge who did not try a case to decide it on the basis
of the record for the trial judge might have died, resigned, retired,
transferred, and so forth.23 As far back as the case of Co Tao v. Court of
Appeals24 we have held: "The fact that the judge who heard the evidence is
not the one who rendered the judgment and that for that reason the latter
did not have the opportunity to observe the demeanor of the witnesses
during the trial but merely relied on the records of the case does not render
the judgment erroneous." This rule had been followed for quite a long time,
and there is no reason to go against the principle now. 25
However, the trial court’s finding of conspiracy will have to be reassessed.
The undisputed facts show that when Antonio Comadre was in the act of
throwing the hand grenade, George Comadre and Danilo Lozano merely
looked on without uttering a single word of encouragement or performed
any act to assist him. The trial court held that the mere presence of George
Comadre and Danilo Lozano provided encouragement and a sense of
security to Antonio Comadre, thus proving the existence of conspiracy.
We disagree.
Similar to the physical act constituting the crime itself, the elements of
conspiracy must be proven beyond reasonable doubt. Settled is the rule
that to establish conspiracy, evidence of actual cooperation rather than
mere cognizance or approval of an illegal act is required. 26
A conspiracy must be established by positive and conclusive evidence. It
must be shown to exist as clearly and convincingly as the commission of
the crime itself. Mere presence of a person at the scene of the crime does
not make him a conspirator for conspiracy transcends companionship. 27
The evidence shows that George Comadre and Danilo Lozano did not
have any participation in the commission of the crime and must therefore
be set free. Their mere presence at the scene of the crime as well as their
close relationship with Antonio are insufficient to establish conspiracy
considering that they performed no positive act in furtherance of the crime.
Neither was it proven that their act of running away with Antonio was an
act of giving moral assistance to his criminal act. The ratiocination of the
trial court that "their presence provided encouragement and sense of
security to Antonio," is devoid of any factual basis. Such finding is not
supported by the evidence on record and cannot therefore be a valid basis
of a finding of conspiracy.
Time and again we have been guided by the principle that it would be
better to set free ten men who might be probably guilty of the crime
charged than to convict one innocent man for a crime he did not
commit.28 There being no conspiracy, only Antonio Comadre must answer
for the crime.
Coming now to Antonio’s liability, we find that the trial court correctly ruled
that treachery attended the commission of the crime. For treachery to be
appreciated two conditions must concur: (1) the means, method and form
of execution employed gave the person attacked no opportunity to defend
himself or retaliate; and (2) such means, methods and form of execution
was deliberately and consciously adopted by the accused. Its essence lies
in the adoption of ways to minimize or neutralize any resistance, which
may be put up by the offended party.
Appellant lobbed a grenade which fell on the roof of the terrace where the
unsuspecting victims were having a drinking spree. The suddenness of the
attack coupled with the instantaneous combustion and the tremendous
impact of the explosion did not afford the victims sufficient time to scamper
for safety, much less defend themselves; thus insuring the execution of the
crime without risk of reprisal or resistance on their part. Treachery
therefore attended the commission of the crime.
It is significant to note that aside from treachery, the information also
alleges the "use of an explosive"29 as an aggravating circumstance. Since
both attendant circumstances can qualify the killing to murder under Article
248 of the Revised Penal Code,30 we should determine which of the two
circumstances will qualify the killing in this case.
When the killing is perpetrated with treachery and by means of explosives,
the latter shall be considered as a qualifying circumstance. Not only does
jurisprudence31 support this view but also, since the use of explosives is the
principal mode of attack, reason dictates that this attendant circumstance
should qualify the offense instead of treachery which will then be relegated
merely as a generic aggravating circumstance. 32
Incidentally, with the enactment on June 6, 1997 of Republic Act No.
829433 which also considers the use of explosives as an aggravating
circumstance, there is a need to make the necessary clarification insofar
as the legal implications of the said amendatory law vis-à-vis the qualifying
circumstance of "by means of explosion" under Article 248 of the Revised
Penal Code are concerned. Corollary thereto is the issue of which law
should be applied in the instant case. R.A. No. 8294 was a reaction to the
onerous and anachronistic penalties imposed under the old illegal
possession of firearms law, P.D. 1866, which prevailed during the
tumultuous years of the Marcos dictatorship. The amendatory law was
enacted, not to decriminalize illegal possession of firearms and explosives,
but to lower their penalties in order to rationalize them into more
acceptable and realistic levels.34
This legislative intent is conspicuously reflected in the reduction of the
corresponding penalties for illegal possession of firearms, or ammunitions
and other related crimes under the amendatory law. Under Section 2 of the
said law, the penalties for unlawful possession of explosives are also
lowered. Specifically, when the illegally possessed explosives are used to
commit any of the crimes under the Revised Penal Code, which result in
the death of a person, the penalty is no longer death, unlike in P.D. No.
1866, but it shall be considered only as an aggravating circumstance.
Section 3 of P.D. No. 1866 as amended by Section 2 of R.A. 8294 now
reads:
Section 2. Section 3 of Presidential Decree No. 1866, as amended, is
hereby further amended to read as follows:
Section 3. Unlawful Manufacture, Sale, Acquisition, Disposition or
Possession of Explosives. The penalty of prision mayor in its maximum
period to reclusion temporal and a fine of not less than Fifty thousand
pesos (P50,000.00) shall be imposed upon any person who shall
unlawfully manufacture, assemble, deal in, acquire, dispose or possess
hand grenade(s), rifle grenade(s), and other explosives, including but
not limited to "pillbox," "molotov cocktail bombs," "fire bombs," or other
incendiary devices capable of producing destructive effect on
contiguous objects or causing injury or death to any person.
When a person commits any of the crimes defined in the Revised
Penal Code or special law with the use of the aforementioned
explosives, detonation agents or incendiary devises, which results in
the death of any person or persons, the use of such explosives,
detonation agents or incendiary devices shall be considered as an
aggravating circumstance. (shall be punished with the penalty of death
is DELETED.)
With the removal of death as a penalty and the insertion of the term "xxx as
an aggravating circumstance," the unmistakable import is to downgrade
the penalty for illegal possession of explosives and consider its use merely
as an aggravating circumstance.
Clearly, Congress intended R.A. No. 8294 to reduce the penalty for illegal
possession of firearms and explosives. Also, Congress clearly intended RA
No. 8294 to consider as aggravating circumstance, instead of a separate
offense, illegal possession of firearms and explosives when such
possession is used to commit other crimes under the Revised Penal Code.
It must be made clear, however, that RA No. 8294 did not amend the
definition of murder under Article 248, but merely made the use of
explosives an aggravating circumstance when resorted to in committing
"any of the crimes defined in the Revised Penal Code." The legislative
purpose is to do away with the use of explosives as a separate crime and
to make such use merely an aggravating circumstance in the commission
of any crime already defined in the Revised Penal Code. Thus, RA No.
8294 merely added the use of unlicensed explosives as one of the
aggravating circumstances specified in Article 14 of the Revised Penal
Code. Like the aggravating circumstance of "explosion" in paragraph 12,
"evident premeditation" in paragraph 13, or "treachery" in paragraph 16 of
Article 14, the new aggravating circumstance added by RA No. 8294 does
not change the definition of murder in Article 248.
Nonetheless, even if favorable to the appellant, R.A. No. 8294 still cannot
be made applicable in this case. Before the use of unlawfully possessed
explosives can be properly appreciated as an aggravating circumstance, it
must be adequately established that the possession was illegal or unlawful,
i.e., the accused is without the corresponding authority or permit to
possess. This follows the same requisites in the prosecution of crimes
involving illegal possession of firearm35 which is a kindred or related
offense under P.D. 1866, as amended. This proof does not obtain in the
present case. Not only was it not alleged in the information, but no
evidence was adduced by the prosecution to show that the possession by
appellant of the explosive was unlawful.
It is worthy to note that the above requirement of illegality is borne out by
the provisions of the law itself, in conjunction with the pertinent tenets of
legal hermeneutics.
A reading of the title36 of R.A. No. 8294 will show that the qualifier
"illegal/unlawful ...possession" is followed by "of firearms, ammunition, or
explosives or instruments..." Although the term ammunition is separated
from "explosives" by the disjunctive word "or", it does not mean that
"explosives" are no longer included in the items which can be
illegally/unlawfully possessed. In this context, the disjunctive word "or" is
not used to separate but to signify a succession or to conjoin the
enumerated items together.37 Moreover, Section 2 of R.A. 8294, 38 subtitled:
"Section 3. Unlawful Manufacture, Sale, Acquisition, Disposition or
Possession of Explosives", clearly refers to the unlawful manufacture,
sale, or possession of explosives.
What the law emphasizes is the act’s lack of authority. Thus, when the
second paragraph of Section 3, P.D. No. 1866, as amended by RA No.
8294 speaks of "the use of the aforementioned explosives, etc." as an
aggravating circumstance in the commission of crimes, it refers to those
explosives, etc. "unlawfully" manufactured, assembled, dealt in, acquired,
disposed or possessed mentioned in the first paragraph of the same
section. What is per se aggravating is the use of unlawfully "manufactured
… or possessed" explosives. The mere use of explosives is not.
The information in this case does not allege that appellant Antonio
Comadre had unlawfully possessed or that he had no authority to possess
the grenade that he used in the killing and attempted killings. Even if it
were alleged, its presence was not proven by the prosecution beyond
reasonable doubt. Rule 110 of the 2000 Revised Rules on Criminal
Procedure requires the averment of aggravating circumstances for their
application.39
The inapplicability of R.A. 8294 having been made manifest, the crime
committed is Murder committed "by means of explosion" in accordance
with Article 248 (3) of the Revised Penal Code. The same, having been
alleged in the Information, may be properly considered as appellant was
sufficiently informed of the nature of the accusation against him. 40
The trial court found appellant guilty of the complex crime of murder with
multiple attempted murder under Article 48 of the Revised Penal Code,
which provides:
Art. 48. Penalty for complex crimes. – When a single act constitutes
two or more grave or less grave felonies, or when an offense is a
necessary means of committing the other, the penalty for the most
serious crime shall be imposed, the same to be applied in its maximum
period.
The underlying philosophy of complex crimes in the Revised Penal
Code, which follows the pro reo principle, is intended to favor the
accused by imposing a single penalty irrespective of the crimes
committed. The rationale being, that the accused who commits two
crimes with single criminal impulse demonstrates lesser perversity than
when the crimes are committed by different acts and several criminal
resolutions.
The single act by appellant of detonating a hand grenade may
quantitatively constitute a cluster of several separate and distinct
offenses, yet these component criminal offenses should be considered
only as a single crime in law on which a single penalty is imposed
because the offender was impelled by a "single criminal impulse" which
shows his lesser degree of perversity.41
Under the aforecited article, when a single act constitutes two or more
grave or less grave felonies the penalty for the most serious crime shall be
imposed, the same to be applied in its maximum period irrespective of the
presence of modifying circumstances, including the generic aggravating
circumstance of treachery in this case.42 Applying the aforesaid provision of
law, the maximum penalty for the most serious crime (murder) is death.
The trial court, therefore, correctly imposed the death penalty.
Three justices of the Court, however, continue to maintain the
unconstitutionality of R.A. 7659 insofar as it prescribes the death penalty.
Nevertheless, they submit to the ruling of the majority to the effect that the
law is constitutional and that the death penalty can be lawfully imposed in
the case at bar.
injuries they sustained. Appellants Gregorio Comadre and Danilo Lozano
are ACQUITTED for lack of evidence to establish conspiracy, and they are
hereby ordered immediately RELEASED from confinement unless they are
lawfully held in custody for another cause. Costs de oficio.
In accordance with Section 25 of Republic Act 7659 amending Article 83 of
the Revised Penal Code, upon finality of this Decision, let the records of
this case be forwarded to the Office of the President for possible exercise
of pardoning power.

Finally, the trial court awarded to the parents of the victim Robert Agbanlog
civil indemnity in the amount of P50,000.00, P35,000.00 as compensatory
damages and P20,000.00 as moral damages. Pursuant to existing
jurisprudence43 the award of civil indemnity is proper. However, the actual
damages awarded to the heirs of Robert Agbanlog should be modified,
considering that the prosecution was able to substantiate only the amount
of P18,000.00 as funeral expenses.44

The award of moral damages is appropriate there being evidence to show

emotional suffering on the part of the heirs of the deceased, but the same
must be increased to P50,000.00 in accordance with prevailing judicial
policy.45

With respect to the surviving victims Jaime Agbanlog, Jimmy Wabe, Rey
Camat and Gerry Bullanday, the trial court awarded P30,000.00 each for
the injuries they sustained. We find this award inappropriate because they
were not able to present a single receipt to substantiate their claims.
Nonetheless, since it appears that they are entitled to actual damages
although the amount thereof cannot be determined, they should be
awarded temperate damages of P25,000.00 each. 46

WHEREFORE, in view of all the foregoing, the appealed decision of the

Regional Trial Court of San Jose City, Branch 39 in Criminal Case No. L-
16(95) is AFFIRMED insofar as appellant Antonio Comadre is convicted of
the complex crime of Murder with Multiple Attempted Murder and
sentenced to suffer the penalty of death. He is ordered to pay the heirs of
the victim the amount of P50,000.00 as civil indemnity, P50,000.00 as
moral damages and P18,000.00 as actual damages and likewise ordered
to pay the surviving victims, Jaime Agbanlog, Jimmy Wabe, Rey Camat
and Gerry Bullanday, P25,000.00 each as temperate damages for the
G.R. No. 138366. September 11, 2003
PEOPLE OF THE PHILIPPINES, Appellee, v. RUBEN CAÑETE
(deceased), ALFREDO CAÑETE, SERGIO CAÑETE (deceased),
TRINIDAD CAÑETE and SOTERO CAÑETE (deceased), appellants.
CORONA, J.:
This is an appeal from the decision dated December 15, 1998 of the
Regional Trial Court, Branch XXVIII, Mandaue City, in Criminal Case No.
DU-5985, convicting the appellants of murder and sentencing them
to reclusion perpetua.
Ruben, Alfredo, Sergio, Trinidad and their father, Sotero, all surnamed
Cañete, were charged with murder in an Information dated June 27,1997
which read:
That on the 24th day of May, 1997, at 10:20 oclock in the morning, more or
less, at Sitio Kanagahan, Barangay Tabla, Municipality of Liloan, Province
of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, with intent to kill, conspiring, confederating and
mutually helping with (sic) one another with abuse of superior strength and
by means of treachery and evident premeditation, did then and there
willfully, unlawfully and feloniously shoot Leonaldo Tanjay Tumayao, hitting
him on the vital parts of his body which resulted in the death of the victim
shortly thereafter.
CONTRARY TO LAW.
Before his trial, on June 1, 1997, Ruben died in detention.[2 Sotero
likewise died in detention on June 3, 1997.[3 The remaining accused
(Alfredo, Trinidad and Sergio) separately pleaded not guilty during their
arraignment. Trial on the merits ensued thereafter.
The prosecutions version of the incident follows.
On May 24, 1997, at about 10:20 a.m., in Sitio Canagahan, Barangay
Tabla, Liloan, Cebu, Leonaldo Tumayao, Joel Quimod and Lilio Tundag
were on their way home after attending a wedding party. Tumayao was
walking ahead of Tundag and Quimod. As they passed by the houses of
the accused, Quimod and Tundag heard successive gunshots. Quimod
and Tundag immediately looked in the direction where the bursts of gunfire
were coming from and saw Ruben, Alfredo, Sergio, Sotero and Trinidad
shooting at Tumayao who slumped to the ground. Apparently not satisfied,
all the accused approached the fallen Tumayao and continued shooting
him. On order of his father Sotero, Alfredo shot Tumayao in the head.
Quimod, who was ten meters behind the victim, ran and hid behind the
bushes. As soon as the accused left, Quimod went home and narrated the
incident to Tumayaos wife.
On the other hand, Tundag, who was behind Tumayao, saw Ruben fire his
gun at the victim. Tundag attempted to come to the aid of Tumayao but the
latter shouted at him to flee. Thus, he ran back to the wedding party while
hearing more gunshots. At the wedding party, Tundag informed the people
about the ambush. Thereafter, he went back to the crime scene where he
saw Tumayaos lifeless body on the road.
Vilma Tumayao, daughter of the victim, went to the crime scene after she
was informed of the shooting. She saw all the accused near the dead body
of her father. Vilma, however, could not approach him because Alfredo
aimed his gun at her.[7 It was only after the arrival of the policemen that
Vilma was finally able to get near the body of her father.
The policemen ordered the accused to come out of their houses and
surrender. After an hour, Sergio, Sotero and Trinidad surrendered to the
authorities while Ruben and Alfredo managed to escape.[8 But after
learning they were included in the criminal complaint, they surrendered to
the Talamban Police Station, Cebu City.
Dr. Jesus P. Cerna, medico-legal officer of the PNP, conducted an autopsy
on Tumayao.[9 According to him, the victim sustained five wounds from a
shotgun and one grazing wound which could have been caused either by a
pellet or a cartridge of a shotgun, or by a bullet fired from a gun.[10 The
cause of death of Tumayao was shock, secondary to shotgun (pellet
wounds) body and extremity.
The defense had a different story.
On May 23, 1997, Rubens wife, Teresita Cañete, was in Barangay
Lanipga, Consolacion, Cebu, to help prepare food for the wedding of her
husbands cousin. She stayed there overnight. At the wedding reception the
following morning, Leonaldo Tumayao, alias Eduardo or Edit, approached
Ruben who was then looking for a cold soft drink. Tumayao said Here is
something cold, and suddenly punched Ruben. Teresita summoned her
husband and asked him to go home with her. The latter acquiesced.
Before they left, however, Teresita saw Tundag give Tumayao what looked
like a .45 caliber pistol.
Seconds later, Tumayao, together with Quimod, Tundag and the latters
son followed Ruben to his house on a motorcycle or habal-habal. Tumayao
alighted and thereafter shouted This is now a combat while firing a gun.
Hearing the gunshots, Teresita brought her children to the safety of a
neighbors house. As she went back for her other child, Teresita saw her
husband Ruben standing beside a coconut tree. Tumayao stood in front of
the house of Alfredo who was shouting at him not to throw stones as he
might hit the children. At that point, Ruben shot Tumayao with
a pugakhang, an improvised shotgun. Tumayao slumped to the ground.
Quimod ran away when Tumayao began firing his gun. Tundag and his
son also sped away on board the motorcycle. Tumayao was left alone.
When the shooting erupted, Teresita also ran away. She did not see
Alfredo approach Tumayao or fire at the latters head. Moreover, she did
not see Sotero, Trinidad and Sergio in the vicinity during the shooting
incident.
Alfredo declared that, during the shooting incident, he was in his house in
Canagahan, Barangay Tabla, Liloan, Cebu. He and his wife saw Ruben
shoot Tumayao. Alfredo then brought his wife to Tayud, Consolacion, as
the latter was in a state of shock after witnessing the shooting incident.
[18 He voluntarily surrendered to the police upon learning that he was
implicated in the killing of Tumayao.
For their part, Trinidad and Sergio declared that they were in the mango
plantation of their aunt, Cirila Cañete, at Sitio Canagahan, Barangay Tabla,
Liloan, Cebu from 6:00 to 11:30 a.m. on the day of the incident. Trinidad
was spraying insecticide on the mango trees while Sergio was with him,
fetching water from the creek to be mixed with the chemicals being used
by Trinidad. Thereafter, Trinidad and Sergio went home and were
surprised to see many people gathered in front of their house. They were
told by their father, Sotero, that Ruben killed Tumayao with a pugakhang.
The police arrived at the scene of the crime at around 12 noon and
immediately ordered the appellants to come out of their houses and
surrender. Sotero, Trinidad and Sergio heeded the order. The policemen
thereafter handcuffed them. When the appellants asked why they were
being handcuffed, the policemen replied: This is your obligation because
he died in your land. 
The trial court found the three accused, appellants herein, guilty beyond
reasonable doubt of the crime of murder for the killing of Leonaldo
Tumayao:
WHEREFORE, finding the herein accused SERGIO, TRINIDAD and
ALFREDO, all surnamed CAÑETE, GUILTY beyond reasonable doubt for
the crime of MURDER, said accused are hereby sentenced to each
undergo the penalty by imprisonment of reclusion perpetua, with the
accessories of the law, to indemnify jointly and severally the legal heirs of
the deceased Leonaldo Tumayao the following amounts:
(1) P10,000.00 after deducting from the total expenses of P52,000.00 the
amount of P42,000.00, which the legal heirs of Leonaldo Tumayao
received form (sic) the SSS as actual damages; and
(2) P50,000.00 by reason of the death of the deceased Leonaldo
Tumayao, all without subsidiary imprisonment in case of insolvency; and to
pay their proportionate share of the cost.
Accused being detention prisoners, shall be credited in (sic) the service of
their sentence full time during which they have undergone preventive
imprisonment.
SO ORDERED.22
Thus, the instant appeal with a lone assignment of error:
THE TRIAL COURT COMMITTED GRAVE REVERSIBLE ERROR IN
CONVICTING ACCUSED SERGIO CAÑETE, TRINIDAD CAÑETE AND
ALFREDO CAÑETE, PRINCIPALLY, ON THE BASIS OF THE
EVIDENTLY BIASED AND HIGHLY INCREDIBLE TESTIMONY OF
WITNESSES JOEL QUIMOD, LILIO TUNDAG AND VILMA TUMAYAO,
MUCH LESS, FOR MURDER.
During the pendency of the appeal, the Court was informed by Assistant
Director Reinario F. Albano of the Bureau of Corrections that appellant
Sergio Cañete died on May 11, 2003 of an undetermined cause at the New
Bilibid Prison Hospital. On account thereof, Sergios criminal liability was
extinguished.
Appellants allege the existence of glaring inconsistencies and bias in the
testimonies of prosecution witnesses Tundag, Quimod and Vilma
Tumayao. Specifically, Quimods testimony that Alfredo shot Tumayao in
the head at close range contradicted that of Tundag and the findings of the
medico-legal officer in the necropsy report which noted no gunshot wound
in the head of the victim.
Likewise, Quimods testimony was purportedly against the natural course of
things since Tumayaos body should have been riddled with pellets and
slugs had five armed men simultaneously fired at him at close range. All
the police investigators recovered at the crime scene were one spent .45
caliber shell, three fired shotgun shells and one live shotgun round.
Appellants also claim that prosecution witnesses Tundag and Quimod
were bedfellows of Tumayao who had an ax to grind against the
appellants. At any rate, according to appellants, the killing was preceded
by sufficient provocation on the part of the victim, hence, the crime
committed, if any, was only simple homicide and not murder.
It is apparent that appellants posture rests mainly on the credibility of the
prosecution witnesses. The rule is well-settled that the trial courts
evaluation of the testimony of a witness and its factual findings are
accorded not only the highest respect but also finality, unless some
weighty circumstance has been ignored, overlooked or misunderstood
which, if appreciated, would alter the result of the case. Given the direct
opportunity to observe the witness on the stand, the trial judge is in a
vantage position to assess his demeanor and determine if he is telling the
truth or not.[24 In People vs. De Guzman, we held that -
In the resolution of the factual issues, the Court relies heavily on the trial
court for its evaluation of the witnesses and their credibility. Having the
opportunity to observe them on the stand, the trial judge is able to detect
that sometimes thin line between fact and prevarication that will determine
the guilt or innocence of the accused. That line may not be discernible
from a mere reading of the impersonal record by the reviewing court. The
record will not reveal those tell-tale signs that will affirm the truth or expose
the contrivance, like the angry flush of an insisted assertion or the sudden
pallor of a discovered lie or the tremulous mutter of a reluctant answer or
the forthright tone of a ready reply. The record will not show if the eyes
have darted in evasion or looked down in confession or gazed steadily with
a serenity that has nothing to distort or conceal. The record will not show if
tears were shed in anger, or in shame, or in remembered pain, or in
feigned innocence. Only the judge trying the case can see all these and on
the basis of his observations arrive at an informed and reasoned
verdict.25 (underscoring ours)
We find no compelling reason to disturb the factual findings and
conclusions of the trial court. Indeed, the prosecution witnesses proved
credible during the trial. In fact, Tundag did not waver in his testimony
regarding the details of the crime, whether on direct or on cross-
examination, thus:
Q. You could not have committed an error in describing the gun he was
holding whether it was long or short?
A. It was short. I could not be wrong.
Q. I would show to your affidavit and in fact, I will read to you your affidavit,
a portion of which says:
x x x diha sa ibabaw sa buntud sa balay ilang amahan diha sa kilid sa batu
nagpahipi nga nagdala gihapon sa iyang armas nga taas x x x
Can you explain this very glaring discrepancy between your statement and
your affidavit?
A. What I saw was a short firearm. It was the police who stated that but
what I saw was a short firearm but the police said it was long.
Q. How about the place where he was hiding? Your affidavit says that he
was hiding behind a rock but you testified that he was standing beside his
house. Which is which now?
A. What is correct is my statement here that he was standing beside his
house. But the police insisted to state that it was behind the rock.
Q. Did you not ask the police why it should be stated that way and not your
way?
A. But the police said that we will just go on with this and I also said that it
is up to you.
xxx
Q. You said that you have read this affidavit before you signed it?
A. I read it but those two facts reflected in my affidavit are wrong and I xxx
know that they are wrong.
Q: How far were you to (sic) Sotero when you saw him carrying that short
Q. Let us go to another point. You said that you were at the wedding place thing, which you said is (sic) a firearm?
at 10:30 per your affidavit but then according to your statement now, you
said that at 8:30 you already left the place. Which is true now? A: Around 20 meters.

A. That is an estimate of the police because at that time I cannot really give xxx
the exact time because at that time I was scared.
Q: How far were you from Ruben?
Q. You signed it before Judge Dagatan?
A: A little more than 20 meters.
A. Yes.
xxx
Q. Did you not tell Judge Dagatan that there were so many things in this
affidavit that were place (sic) by the policeman despite your objection? Q: So what was Ruben carrying then?

A. I told Judge Dagatan that some were inserted by the police. A: Shotgun.

Q. What did Judge Dagatan do? Tundag also testified:

A. He said that you will sign this in my presence, so you have to sign this Q. Whose house among the Cañetes would you be (sic) passing first?
and I told him Judge there are insertions.
A. Alfredo.
Tundags tenacious insistence on the minute details of what happened
suggested nothing else except that he was telling the truth. We do not
Q. Was there anything unusual that happened when you passed by the
doubt his credibility.
house of Alfredo Cañete?
The presence of spent shells of more than one caliber, i.e., .45 and
A. There was. Alfredo fired [his gun].
shotgun ammunition, at the scene of the crime negated the version of the
defense that it was only Ruben who shot and killed Tumayao. On cross-
examination, Quimod even testified: Q. How far were you as well as Leonaldo Tumayao from Alfredo Cañete
when you made mention earlier that he was firing his gun?
Q: And let us talk of Sotero Cañete. Can you tell us what was the firearm
he was holding, if it was a firearm? A. Around two arms length more or less.

A: I do not know but he was holding his pistol and I do not know the xxx
caliber.
Q. When you saw Alfredo Cañete firing his gun to whom was it directed?
Q: How did you know that it was a pistol?
A. To Leonaldo.
A: It was short.
Q. And aside from Alfredo Cañete whom you saw firing his gun aimed at
Leonaldo Tumayao, were there other persons whom you saw?
A. I saw Ruben Cañete who was carrying a long weapon.
COURT TO WITNESS:
Q: Who else?
A: Sotero Cañete.
xxx
Q. And were you able to see Sotero bringing anything?
A. He was holding a short firearm.
The perceived contradictions in the testimonies of Quimod and Tundag
referred only to minor matters. There was no inconsistency as far as the
principal occurrence and the positive identification of the assailants were
concerned.[29 Minor discrepancies do not damage the essential integrity of
the evidence in its material whole nor reflect adversely on the witnesses
credibility.[30 We have previously held, in fact, that minor inconsistencies,
far from detracting from the veracity of the testimony, even enhance the
credibility of witnesses for they remove any suspicion of a contrived or
rehearsed testimony.
Despite the absence of any wound in the head allegedly caused by a final
shot by Alfredo, the shots fired at Tumayao by the appellants nevertheless
resulted in his death. As established by the prosecution through the
testimony of Dr. Jesus Cerna:
Q How do you consider these five pellet wounds, are they fatal?
A Yes, sir, because pellet wounds or the wound caused by the pellet in
case of wound no. 2 was able to penetrate the abdominal cavity and
perforated a portion of the small intestines. In wound no. 3, the pellet was
able to penetrate the thoracic cavity and lacerated the upper and lower
lobes of the right lung. In wound no. 4, the pellet was able to penetrate the
right thoracic cavity and lacerated the lower lobe of the right lung. Of all the
pellet wounds, three of them were fatal.
Q They are fatal in the sense that it would result to (sic) immediate death of
the victim?
A Almost instantaneous death.
xxx
Q If you were to be asked, doctor, what was the cause of death?
A The immediate cause of death was due to shock secondary to massive
loss of blood, internal bleeding secondary to pellet wounds.
In this case, the prosecution witnesses positively identified the appellants
as the persons who fired their guns at Tumayao. It was of no moment who
among the appellants actually hit and killed the victim. The fact that the
witnesses testimonies were consistent regarding the commission of the
crime as well as the positive identification of the appellants as the
perpetrators thereof, far outweighs the minor inconsistencies therein. Thus:
So long as the witnesses testimonies agree on substantial matters, the
inconsequential inconsistencies and contradictions dilute neither the
witnesses credibility nor the verity of their testimonies. When the
inconsistency is not an essential element of the crime, such inconsistency
is insignificant and can not have any bearing on the essential fact testified
to, that is, the killing of the victim.
The time-tested rule is that, between the positive assertions of prosecution
witnesses and the mere denials of the accused, the former undisputedly
deserve more credence and are entitled to greater evidentiary value.
[35 More so in this case where appellants failed to sufficiently explain why
a shotgun was found at Soteros hut or why Trinidad was found positive for
gunpowder burns.
Neither could appellants alibi prosper, since they failed to prove that they
were at another place at the time of the commission of the crime and that it
was physically impossible for them to be at the crime scene.[36 Appellants
Sergio and Trinidads claim that they were at the mango plantation, just one
kilometer away from the scene of the crime, did not negate the possibility
that they had gone home before the incident to commit the crime. Their
alleged presence at the mango plantation was not even established by a
positive declaration from an independent witness.
Moreover, the prosecution witnesses were not shown to have been driven
by any ill will or false motive in testifying against appellants. The fact that
there were pending civil and criminal cases between the prosecution
witnesses and the Cañetes did not per se establish that the prosecution
witnesses were improperly motivated to impute a very serious accusation
against appellants for which the possible penalty could either be death or
life imprisonment. The trial court did not perceive such motivation on the
part of the prosecution witnesses as would make them falsely implicate
appellants in the commission of the crime.
Our consistent ruling has been that the witness testimony deserves full
faith and credit where there exists no evidence to show any dubious
reason or improper motive why he should testify falsely against the
accused, or why he should implicate the accused in a serious offense.
Appellants likewise assail the trial courts finding that conspiracy, treachery
and evident premeditation attended the commission of the crime.
Conspiracy need not be established by direct evidence. It may be inferred
from the acts of the accused before, during or after the commission of the
crime which, when taken together, would be enough to reveal a community
of criminal design.[38 Gleaned from the records is the following chain of
events which proved that there was a community of design among the
appellants: (1) appellants positioned themselves strategically before
ambushing Tumayao; (2) Alfredo fired at Tumayao although there was no
certainty that he hit the victim; (3) Ruben shot and hit the victim with his
shotgun; (4) appellants fired their guns successively at Tumayao; (5)
appellants, still holding their firearms, surrounded Tumayao after he
slumped to the ground; (6) Sotero was holding a pistol and he ordered
Alfredo to deliver the coup de grace to the victim; (7) Alfredo obeyed
Soteros order by shooting Tumayao one last time; (8) Alfredo and Ruben
escaped from the scene of the crime; (9) Sotero, Sergio and Trinidad hid
inside the latters house away from the crime scene until they were ordered
by the police to come out and surrender.
Therefore, even presuming for the sake of argument that the wounds
inflicted on Tumayao were the result of a single shot from a shotgun,
appellants presence and participation nonetheless made possible the
execution of the crime. Accordingly, the appellants should all be held liable
for the death of Tumayao for, in a conspiracy, the act of one is the act of
all.
We likewise agree that treachery attended the commission of the crime.
There is treachery when the offender commits any of the crimes against
persons, employing means or methods in the execution thereof which tend
directly and specially to insure its execution, without risk to the offender,
arising from the defense which the offended party might make. The
essence of treachery is the sudden and unexpected attack without the
slightest provocation on the part of the person being attacked.[39 In this
case, the events narrated by the eyewitnesses point to the fact that
Tumayao could not have been aware that he would be attacked by
appellants. There was no opportunity for Tumayao to defend himself as
appellants, suddenly and without any provocation, fired their guns at him,
one after the other.
However, the prosecution failed to establish beyond reasonable doubt the
aggravating circumstance of evident premeditation. There was no proof
that the appellants deliberately planned to liquidate the victim. On the
contrary, the killing of the victim was the immediate impulsive reaction of
appellants to Tumayaos act of punching Ruben. Moreover, the time that
elapsed between the punching incident and the commission of the crime
was not sufficient for Ruben and the rest of the appellants to reflect upon
the consequences of their intended act. The elements of evident
premeditation, namely: (1) the time when the offender appeared
determined to commit the crime; (2) the act evidently indicating that the
offender clung to his determination, and (3) sufficient lapse of time
between the determination to commit the crime and the execution thereof
during which the offender was able to reflect on the consequences of his
act,[40 were wanting in this case.
We agree with the trial court that the mitigating circumstance of voluntary
surrender should be appreciated in favor of Alfredo and the mitigating
circumstance of immediate vindication of a grave offense conceded in
favor of all the appellants. Saving the authorities the trouble and expense
for his search and capture, and freely placing himself at their disposal,
Alfredo should be given the favor of a mitigated penalty for his voluntary
surrender. The mitigating circumstance of voluntary surrender, being
personal however, can only be appreciated in favor of appellant Alfredo.
It must be recalled that, immediately prior to the incident, Tumayao
punched Ruben in the presence of many people at the wedding party.
Although the incident did not immediately precede the killing, its impact, by
reason of its seriousness and the circumstances under which it was
inflicted, festered till the commission of the crime.[41 The mitigating
circumstance of immediate vindication of a grave offense must, therefore,
be appreciated in favor of the appellants.
All told, we are convinced that appellants Alfredo and Trinidad are guilty
beyond reasonable doubt of murder which carries the penalty of reclusion
perpetua to death. Since the mitigating circumstances of voluntary
surrender and immediate vindication of a grave offense were present in
this case, the lesser penalty of reclusion perpetua was properly imposed
by the trial court.

As regards damages, there is need to modify the award by the trial court.
The prosecution was able to prove the amount of P7,000 only as actual
damages.[42 In People vs. Villanueva,[43 we declared that the legal heirs
shall be entitled to temperate damages in the amount of P25,000 when the
amount of actual damages proven is less than P25,000. However, the
victims daughter testified that she received P12,000 from the Social
Security System as reimbursement for burial expenses.[44 This amount
should be deducted from P25,000 and the victims heirs awarded the
balance of P13,000 as temperate damages.

WHEREFORE, the decision of the Regional Trial Court, Branch 27,

Mandaue City, is hereby AFFIRMED with MODIFICATION. Appellants
Trinidad Cañete and Alfredo Cañete are hereby found guilty of murder and
sentenced to reclusion perpetua.

Appellants are also ordered to indemnify the heirs of the victim, Leonaldo
Tumayao, P50,000 as civil indemnity and P13,000 as temperate damages.
G.R. No. 112279 July 3, 1995
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.
ROBERT ALBAN, DEMETRIO ALBAN y PANINGBATAN @ "TING
ALBAN," BING ALBAN and ARTHUR DOE, accused.
ROBERT ALBAN and DEMETRIO ALBAN y. PANINGBATAN @ "TING
ALBAN," appellants.
FELICIANO, J.:
The brothers Robert Alban and Demetrio Alban y Paningbatan alias "Ting"
appeal from a decision of the Regional Trial Court, Branch 44 of Dagupan
City finding them guilty beyond reasonable doubt of murder.
Robert and Demetrio Alban were charged, together with Bing Alban and
one Arthur Doe, with murder in an information which read as follows:
That on or about July 31, 1991 at Brgy. Nibaliw East, municipality of
San Fabian province of Pangasinan, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, armed
with bladed weapons and a gun, conspiring, confederating and
mutually helping one another with intent to kill with treachery and
evident premeditation did, then and there wilfully, unlawfully and
feloniously chase, attack, stab and shoot ROBERTO
SALINAS alias SIAKOL inflicting upon him the following injuries:
— gunshot wound c Point of Entry over the left lateral side of the neck;
slug recovered at the right side of the neck middle portion just beneath
the skin.
— stab wound 2 inches over the (R) chest inframammary area, 7
inches in depth slanting to the right hitting the (R) middle lobe of the
lung.
— stab wound (R) bet. T10-T12 lateral side one inch, 7-8 inches in
depth going upwards hitting the lower libe or (R) lung
— stab wound 7 inches (R) diaphragmatic area going upwards hitting
the lower liver
— stab wound distal third (R) forearm
— stab wound middle half of left arm
which caused his instant death, to the damage and prejudice of his
heirs.
Contrary to Art. 248, Revised Penal Code. 1
Only Robert and Demetrio were arraigned and pleaded not guilty and
thereafter stood trial because Ding Alban and the Arthur Doe, who
remained unidentified, were never apprehended.
After trial, the court a quo rendered judgment the dispositive portion of
which read as follows:
WHEREFORE, the Court finds accused Robert Alban and Demetrio
Alban y Paningbatan @ Ting Alban guilty beyond reasonable doubt as
principals of the crime of Murder, qualified by treachery, defined and
penalized under Article 248 of the Revised Penal Code with the
attendance of the specific aggravating circumstance of cruelty and
hereby sentences accused Robert Alban and Demetrio Alban y
Paningbatan alias Ting Alban to suffer the penalty of Reclusion
Perpetua with all its accessory penalties, to indemnify the heirs of the
victim Roberto Salinas, in the amount of FIFTY THOUSAND PESOS
(P50,000.00), to pay the sum of THIRTY THOUSAND PESOS
(P30,000.00) as actual damages and to pay the costs. SO ORDERED. 2
The relevant facts as found by the trial court are based mainly on the
testimony of the prosecution's sole eyewitness, Joseph Salinas, thirteen-
year old son of the victim Roberto Salinas. Joseph testified that from
October 1990 to 31 July 1991 he was living with his father Roberto and the
latter's common law wife, Fe Gutierrez, at No. 36 Nibaliw East, San
Fabian, Pangasinan. On 31 July 1991, after they had gone fishing, Roberto
decided to have a bottle of beer at a nearby sari-sari store. Joseph
Proceeded to go home. At about 6:00 in the afternoon, Fe Gutierrez
instructed Joseph to fetch his father. When Joseph was about seven
meters away from the sari-sari store, he saw his father being attacked by
four men. Joseph saw Robert and Demetrio stabbing his father while the
other two men restrained his hands. During his direct examination, Joseph
demonstrated how the left hand of his father was squeezed as the two
accused stabbed him. An unidentified person, Arthur Doe, stabbed the
middleback part of the victim. Thereafter, when Roberto was slumped
prostrate against the wall, he was shot at the left temple by a person who
has not, as yet, been apprehended. 3
Based on the findings of Dr. Leopoldo Manalo, a medico-legal officer of
San Fabian, Pangasinan, it was established that the death of Roberto
Salinas was caused by cardio-respiratory arrest, secondary to hemorrhagic
shock, multiple gunshot wounds and stab wounds. 4
For their part, accused Robert and Demetrio interposed the defense of
alibi. Robert testified that he had gone fishing in the afternoon of 31 July
1991 and came home only the following morning.  Demetrio, on the other
5 The following is part of Joseph's testimony relied upon by the trial court to
hand, testified that at 8:00 in the morning of 31 July 1991, he had left San
Fabian with his wife to go to Barrio Malimpec, San Carlos City to get
provisions from his Nana Sion Paningbatan. He claimed that he stayed
overnight in Barrio Malimpec. 6
The defense also presented Nenita David, Melba Caguya and Marife Raca
as witnesses to show that contrary to Joseph's claim, he had never lived
with his father in No. 36 Nibaliw East, San Fabian, Pangasinan. The three
(3) women further testified that they did not see Joseph in the vicinity of
Nibaliw East, San Fabian on the day his father was killed.  7
Appellants Robert and Demetrio now come to this Court assailing their
conviction in the trial court and making the following assignment of errors:
1. The lower court erred in giving undue credence to the testimony of
Joseph Salinas, despite its inherent incredibility;
2. The lower court erred in finding the presence of treachery despite
evidence showing opportunity for the deceased Roberto Salinas to
defend or totally avoid injuries to himself;
3. The lower court likewise erred in convicting the accused-appellants
of murder despite the weakness and insufficiency of the prosecution's
evidence. 8
In impugning Joseph's identification of them as the malefactors, appellants
point to certain circumstances which according to them seriously affect the
credibility of Joseph as a witness. Specifically they aver that (a) Joseph,
because of his tender age, could not "properly perceive the true
circumstance of the case" and "accurately relate what he had really
observed"; (b) Joseph may be biased as the victim was his father; (c)
Joseph's reaction at seeing his father being stabbed and shot was "very
strange"; and (d) Joseph's testimony was not corroborated.  Appellants
9
contend that all these circumstances taken together make the testimony of
Joseph "highly unbelievable." The Court finds no merit in this contention.
It is a well-settled rule in this jurisdiction that questions regarding the
competency of a child to testify rest primarily with the trial judge who sees
the proposed witness, observes his manner, his apparent possession or
lack of intelligence, as well as his understanding of the obligation of an
oath.   In the case of Joseph, a 13-year old boy, the trial court found him to
10
be a competent witness and his testimony worthy of full faith and credence.
support the conviction of Robert and Demetrio:
Q: Who were those persons who stabbed your father?
A: That one, sir.
Q: Will you please go down from your seat and touch those persons
who stabbed your father?
A: Witness pointed to a person seated inside the courtroom, who when
asked his name, said "I am Demetrio Alban." He pointed again to
another person who later identified himself as Robert Alban.
Q: How many persons killed your father?
A: Four, sir.
Q: How did these persons who according to you stabbed your father.
How did they stab your father?
A: They held the hand of my father and then he was stabbed.
Q: How many persons held the hand of your father and then stabbed
him?
A: Two of them sir.
Q: Will you go down from your seat and point those two persons whom
you said stabbed your father?
 A: They are the ones sir. (Witness is pointing to Robert Alban and
Demetrio Alban) xxx xxx xxx
Q: Now will you stand up and then demonstrate how your father — in
order to clarify everything how your father was stabbed?
A: Like this sir. (Witness is demonstrating how his father was stabbed.
He showed that the left hand of his father was squeezed and witness is
showing a forward thrust at the back of the victim, at his left side.)
Q: What about the other person who stabbed your father?
A: The other accused also stabbed the victim at the middle back part of
the victim.
Q: When these persons, the two persons accused after they stabbed
your father, what did your father do or did he go anywhere?
A He slumped against a wall, sir.
Q: Where did your father slump against the wall? What happened next
after if there is any?
A: He was shot at the temple, sir.  11
The testimony of Joseph was straightforward, coherent and convincing. He
was able clearly to describe the manner in which his father was killed and
he positively identified Robert and Demetrio as among the four malefactors
responsible for his father's death. The Court finds no basis for appellants'
assertion that Joseph could not "properly perceive the true circumstance[s]
of the case" and "accurately relate what he had really observed." The
Court also notes that this assertion runs counter to its avowed doctrine that
a court may "give full faith and credence to the testimony of children of
sound mind once it is established that they understood the nature and
character of an oath as their testimony is likely to be more correct and
truthful than that of older persons."
12
Appellants also seek to impugn the credibility of Joseph as a witness by
suggesting that he may be biased because of his relationship to the victim.
This effort is in vain. Mere relationship of the victim to a witness does not
automatically impair his credibility and render his testimony less worthy of
credence where no improper motive can be ascribed to him for
testifying.   The record of the case will show that appellants did not even
13
try to ascribe any motive on the part of Joseph to lie and falsely accuse
them of killing his father.
Appellants try to make an issue of the fact that Joseph did not do anything
upon seeing his father being stabbed and shot. The appellants found his
reaction "very strange and against the natural experience of mankind." The
Court, however, finds Joseph's reaction normal under the circumstances.
The sight of his father being subjected to deadly assault was
understandably too much of a shock for the 13-year old boy. The shock
rendered him incapable of doing anything. He remained rooted at the spot
where he was standing as he watched helplessly the four (4) malefactors,
full grown men, stab and shoot his father. Joseph's reaction is far from
contrary to human experience. Besides, the Court has consistently ruled
that "there is no standard form of human behavioral response when one is
confronted with a strange, startling and frightful experience." 14
The fact that no other witnesses came forward to corroborate Joseph's
testimony does not make it less credible. The Court has taken judicial
notice of the natural reticence of most people to get involved in a criminal
case. They are usually fearful of possible reprisals from the accused or his
family and
relatives.   It is not, therefore, unusual that only Joseph testified about the
15
killing of his father even though it was committed near a sari-sari store
where people in the rural areas usually congregate.
The Court cannot give much credence to the testimony of defense
witnesses Marife Raca, Nenita David and Melba Caguya. The gist of their
testimonies was that Joseph never lived in No. 36 Nibaliw East, San
Fabian. Unlike Joseph, the three defense witnesses were not at the scene
of the crime at the time it was committed. They failed to directly rebut
Joseph's positive testimony regarding the killing of his father. Moreover,
Lourdes Salinas, grandmother of Joseph and mother of the victim, testified
that Joseph indeed lived with his father in San Fabian as he claimed. The
victim Roberto had brought him along to take care of the family's pigs and
chickens. 16
The Court accordingly has no basis at all for overturning the trial court's
ascription of full faith and credence to the testimony of Joseph, as well as
to his positive identification of the appellants as among the perpetrators of
the crime charged. It also follows that appellants defense of alibi must fail.
It is firmly established in our jurisprudence that the defense of alibi cannot
prevail over positive identification of the accused by the prosecution
witnesses. 17
The Court also finds that the trial court correctly appreciated the
attendance of the qualifying circumstance of treachery. As testified to by
Joseph, the four malefactors ganged up on his father in the following
manner:
Q: How many persons killed your father?
A: Four, sir.
Q: How did these persons who according to you stabbed your father.
How did they stab your father?
A: They held the hand of my father and then he was stabbed.
Q: How many persons held the hand of your father and then stabbed
him?
A: Two of them, sir. xxx xxx xxx
Q: Now will you stand up and then demonstrate how your father in
order to clarify everything how your father was stabbed?.
A: Like this, sir. (Witness is demonstrating how his father was stabbed.
He showed that the left hand of his father was squeezed and witness is
showing a forward thrust at the back of the victim, at his left side). xxx
xxx xxx
Q: Where did your father slump against the wall? What happened next
after if there is any?
A: He was shot at the temple, sir. 18
Contrary to appellants' claim,   the fact that Roberto was able to
19
momentarily run away from his assailants does not negate the element of
treachery. Treachery exists when the offender commits any of the crimes
against persons, employing means, methods or forms in the execution
thereof which tend directly and specially to insure its execution without risk
to himself arising from the defense which the offended party might
make.   In this case, at the time that Robert and Demetrio stabbed
20
Roberto, who was not armed, his left hand was held and twisted behind
him by the two (2) other assailants, effectively rendering Roberto helpless
and unable to either flee or ward off his attackers. This was clearly
intended by them to ensure the success of their assault without risk to
themselves. Additionally, Roberto was shot at the temple when he was
already slumped against the wall, grievously wounded and totally
defenseless. From all indications, the mode of attack adopted by
appellants and their co-assailants qualifies the killing to murder.
The trial court erred, however, in finding that the generic aggravating
circumstance of cruelty attended the commission of the crime. It based its
appreciation thereof on the autopsy report submitted by Dr. Leopoldo
Manalo detailing the six (6) wounds sustained by the victim: 21
1) Gun shot wound c Point of Entry over the left lateral side of the
neck; slug recovered at the (R) side of the neck middle portion just
beneath the skin;
2) stab wound 2 inches over the (R) chest inframammary area, 7
inches in depth slanting to the right hitting the (R) middle lobe of the
lung;
3) stab wound (R) between T10-T12 lateral side one inch, 7-8 inches in
depth going upwards hitting the lower lobe of (R) lung;
4) stab wound 7 inches (R) diaphragmatic area going upwards hitting
the lower liver;
5) stab wound distal third (R) forearm;
6) stab wound middle half of left arm.
Dr. Manalo testified that stab wounds number 2, 3 and 4 caused the death
of Roberto and that the other wounds, even the gun shot wound, were in
fact unnecessary to produce death of the victim. The Court is not
convinced that cruelty had been sufficiently shown on the basis of this
finding alone. Cruelty cannot be appreciated in the absence of any
showing that appellants, for their pleasure and satisfaction, caused the
victim to suffer slowly and painfully and inflicted on him unnecessary
physical and moral pain.   The mere fact that wounds in excess of what
22
was indispensably necessary to cause death were found in the body of the
victim does not necessarily imply that such wounds were inflicted with
cruelty and with the intention of deliberately and inhumanly intensifying or
aggravating the sufferings of the victim. 
23
The penalty for murder under Article 248 of the Revised Penal Code
is reclusion temporal in its maximum period to death. There being no
mitigating or aggravating circumstance which attended the commission of
the crime, the imposable penalty is reclusion perpetua.
24

WHEREFORE, the appealed decision of the trial court

is AFFIRMED except with respect to the finding of the presence of cruelty
as an aggravating circumstance which is hereby DELETED.
G.R. No. L-74324 November 17, 1988
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.
FERNANDO PUGAY y BALCITA, & BENJAMIN SAMSON y
MAGDALENA, accused-appellants.
MEDIALDEA, J.:
For the death of Bayani Miranda, a retardate, FERNANDO PUGAY y
BALCITA and BENJAMIN SAMSON y MAGDALENA were charged with
the crime of MURDER in Criminal Case No. L-175-82 of the Court of First
Instance (now Regional Trial Court) of Cavite, under an information which
reads as follows:
That on or about May 19, 1982 at the town plaza of the Municipality of
Rosario, Province of Cavite, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping and assisting one another, with
treachery and evident premeditation, taking advantage of their superior
strength, and with the decided purpose to kill, poured gasoline, a
combustible liquid to the body of Bayani Miranda and with the use of
fire did then and there, wilfully, unlawfully and feloniously, burn the
whole body of said Bayani Miranda which caused his subsequent
death, to the damage and prejudice of the heirs of the aforenamed
Bayani Miranda.
That the crime was committed with the qualifying circumstance of
treachery and the aggravating circumstances of evident premeditation
and superior strength, and the means employed was to weaken the
defense; that the wrong done in the commission of the crime was
deliberately augmented by causing another wrong, that is the burning
of the body of Bayani Miranda. CONTRARY TO LAW
Upon being arraigned, both accused pleaded not guilty to the offense
charged. After trial, the trial court rendered a decision finding both accused
guilty on the crime of murder but crediting in favor of the accused Pugay
the mitigating circumstance of lack of intention to commit so grave a
wrong, the dispositive portion of which reads as follows:
WHEREFORE, the accused Fernando Pugay y Balcita and Benjamin
Samson y Magdalena are pronounced guilty beyond reasonable doubt
as principals by direct participation of the crime of murder for the death
of Bayani Miranda, and appreciating the aforestated mitigating
circumstance in favor of Pugay, he is sentenced to a prison term
ranging from twelve (12) years of prision mayor, as minimum, to twenty
(20) years of reclusion temporal, as maximum, and Samson to suffer
the penalty of reclusion perpetua together with the accessories of the
law for both of them. The accused are solidarily held liable to indemnify
the heirs of the victim in the amount of P13,940.00 plus moral
damages of P10,000.00 and exemplary damages of P5,000.00.
Let the preventive imprisonment of Pugay be deducted from the
principal penalty.
Cost against both accused. SO ORDERED
Not satisfied with the decision, both accused interposed the present appeal
and assigned the following errors committed by the court a quo:
1. THE COURT A QUO ERRED IN UTILIZING THE STATEMENTS OF
ACCUSED-APPELLANTS IN ITS APPRECIATION OF FACTS
DESPITE ITS ADMISSION THAT THE ACCUSED-APPELLANTS
WERE NOT ASSISTED BY A COUNSEL DURING THE CUSTODIAL
INVESTIGATION.
2. THE COURT A QUO ERRED IN NOT FINDING THAT THE
SUPPRESSION BY THE PROSECUTION OF SOME EVIDENCE IS
FATAL TO ITS CASE.
3. THE COURT A QUO ERRED IN LENDING CREDENCE TO THE
INCREDIBLE TESTIMONY OF EDUARDO GABION WHO WAS ONE
OF THE MANY SUSPECTS ARRESTED BY THE POLICE (Accused-
appellants' Brief, p. 48, Rollo).
The antecedent facts are as follows:
The deceased Miranda, a 25-year old retardate, and the accused Pugay
were friends. Miranda used to run errands for Pugay and at times they
slept together. On the evening of May 19, 1982, a town fiesta fair was held
in the public plaza of Rosario, Cavite. There were different kinds of ride
and one was a ferris wheel.
Sometime after midnight of the same date, Eduardo Gabion was sitting in
the ferris wheel and reading a comic book with his friend Henry. Later, the
accused Pugay and Samson with several companions arrived. These
persons appeared to be drunk as they were all happy and noisy. As the
group saw the deceased walking nearby, they started making fun of him.
They made the deceased dance by tickling him with a piece of wood.
Not content with what they were doing with the deceased, the accused
Pugay suddenly took a can of gasoline from under the engine of the ferns
wheel and poured its contents on the body of the former. Gabion told
Pugay not to do so while the latter was already in the process of pouring
the gasoline. Then, the accused Samson set Miranda on fire making a
human torch out of him.
The ferris wheel operator later arrived and doused with water the burning
body of the deceased. Some people around also poured sand on the
burning body and others wrapped the same with rags to extinguish the
flame.
The body of the deceased was still aflame when police officer Rolando
Silangcruz and other police officers of the Rosario Police Force arrived at
the scene of the incident. Upon inquiring as to who were responsible for
the dastardly act, the persons around spontaneously pointed to Pugay and
Samson as the authors thereof.
The deceased was later rushed to the Grace Hospital for treatment. In the
meantime, the police officers brought Gabion, the two accused and five
other persons to the Rosario municipal building for interrogation. Police
officer Reynaldo Canlas took the written statements of Gabion and the two
accused, after which Gabion was released. The two accused remained in
custody.
After a careful review of the records, We find the grounds relied upon by
the accused-appellants for the reversal of the decision of the court a quo to
be without merit.
It bears emphasis that barely a few hours after the incident, accused-
appellants gave their written statements to the police. The accused Pugay
admitted in his statement, Exhibit F, that he poured a can of gasoline on
the deceased believing that the contents thereof was water and then the
accused Samson set the deceased on fire. The accused Samson, on the
other hand, alleged in his statement that he saw Pugay pour gasoline on
Miranda but did not see the person who set him on fire. Worthy of note is
the fact that both statements did not impute any participation of eyewitness
Gabion in the commission of the offense.
While testifying on their defense, the accused-appellants repudiated their
written statements alleging that they were extracted by force. They claimed
that the police maltreated them into admitting authorship of the crime. They
also engaged in a concerted effort to lay the blame on Gabion for the
commission of the offense.
Thus, while it is true that the written statements of the accused-appellants
were mentioned and discussed in the decision of the court a quo, the
contents thereof were not utilized as the sole basis for the findings of facts
in the decision rendered. The said court categorically stated that "even
without Exhibits 'F' and 'G', there is still Gabion's straightforward, positive
and convincing testimony which remains unaffected by the uncorroborated,
self-serving and unrealiable testimonies of Pugay and Samson" (p.
247, Records).
Accused-appellants next assert that the prosecution suppressed the
testimonies of other eyewitnesses to the incident. They claim that despite
the fact that there were other persons investigated by the police, only
Gabion was presented as an eyewitness during the trial of the case. They
argue that the deliberate non- presentation of these persons raises the
presumption that their testimonies would be adverse to the prosecution.
There is no dispute that there were other persons who witnessed the
commission of the crime. In fact there appears on record (pp. 16-
17, Records) the written statements of one Abelardo Reyes and one
Monico Alimorong alleging the same facts and imputing the respective acts
of pouring of gasoline and setting the deceased on fire to the accused-
appellants as testified to by Gabion in open court. They were listed as
prosecution witnesses in the information filed. Considering that their
testimonies would be merely corroborative, their non-presentation does not
give rise to the presumption that evidence wilfully suppressed would be
adverse if produced. This presumption does not apply to the suppression
of merely corroborative evidence (U.S. vs. Dinola, 37 Phil. 797). Besides,
<äre||anº•1àw> 
the matter as to whom to utilize as witness is for the prosecution to decide.
Accused-appellants also attack the credibility of the eyewitness Gabion
alleging that not only was the latter requested by the mother of the
deceased to testify for the prosecution in exchange for his absolution from
liability but also because his testimony that he was reading a comic book
during an unusual event is contrary to human behavior and experience.
Gabion testified that it was his uncle and not the mother of the deceased
who asked him to testify and state the truth about the incident. The mother
of the deceased likewise testified that she never talked to Gabion and that Q. Why did you as(k) Pugay in the first place not to pour gasoline
she saw the latter for the first time when the instant case was tried. before he did that actually?
Besides, the accused Pugay admitted that Gabion was his friend and both
Pugay and the other accused Samson testified that they had no previous A. Because I pity Bayani, sir.
misunderstanding with Gabion. Clearly, Gabion had no reason to testify
falsely against them. Q. When you saw Pugay tickling Bayani with a stick on his ass you
tried according to you to ask him not to and then later you said you
In support of their claim that the testimony of Gabion to the effect that he asked not to pour gasoline. Did Pugay tell you he was going to pour
saw Pugay pour gasoline on the deceased and then Samson set him on gasoline on Bayani?
fire is incredible, the accused-appellants quote Gabion's testimony on
cross-examination that, after telling Pugay not to pour gasoline on the A. I was not told, sir.
deceased, he (Gabion) resumed reading comics; and that it was only when
the victim's body was on fire that he noticed a commotion.
Q. Did you come to know..... how did you come to know he was going
to pour gasoline that is why you prevent him?
However, explaining this testimony on re-direct examination, Gabion
stated:
A. Because he was holding on a container of gasoline. I thought it was
water but it was gasoline.
Q. Mr. Gabion, you told the Court on cross-examination that you were
reading comics when you saw Pugay poured gasoline unto Bayani
Q. It is clear that while Pugay was tickling Bayani with a stick on his
Miranda and lighted by Samson. How could you possibly see that
ass, he later got hold of a can of gasoline, is that correct?
incident while you were reading comics?
A. Yes, sir.
A. I put down the comics which I am reading and I saw what they were
doing.
Q. And when he pick up the can of gasoline, was that the time you told
him not to pour gasoline when he merely pick up the can of gasoline.
Q. According to you also before Bayani was poured with gasoline and
lighted and burned later you had a talk with Pugay, is that correct?
A. I saw him pouring the gasoline on the body of Joe.
A. When he was pouring gasoline on Bayani Miranda I was trying to
prevent him from doing so. Q. So, it is clear when you told Pugay not to pour gasoline he was
already in the process of pouring gasoline on the body of Bayani?
Q. We want to clarify. According to you a while ago you had a talk with
Pugay and as a matter of fact, you told him not to pour gasoline. That A. Yes, sir (Tsn, July 30, 1983, pp. 32-33).
is what I want to know from you, if that is true?
It is thus clear that prior to the incident in question, Gabion was reading a
A. Yes, sir. comic book; that Gabion stopped reading when the group of Pugay started
to make fun of the deceased; that Gabion saw Pugay get the can of
gasoline from under the engine of the ferris wheel; that it was while Pugay
Q. Aside from Bayani being tickled with a stick on his ass, do you
was in the process of pouring the gasoline on the body of the deceased
mean to say you come to know that Pugay will pour gasoline unto him?
when Gabion warned him not to do so; and that Gabion later saw Samson
set the deceased on fire.
A. I do not know that would be that incident.
However, there is nothing in the records showing that there was previous
conspiracy or unity of criminal purpose and intention between the two
accused-appellants immediately before the commission of the crime. There
was no animosity between the deceased and the accused Pugay or
Samson. Their meeting at the scene of the incident was accidental. It is
also clear that the accused Pugay and his group merely wanted to make
fun of the deceased. Hence, the respective criminal responsibility of Pugay
and Samson arising from different acts directed against the deceased is
individual and not collective, and each of them is liable only for the act
committed by him (U.S. vs. Magcomot, et. al. 13, Phil. 386; U.S. vs. Abiog,
et. al. 37 Phil. 1371).
The next question to be determined is the criminal responsibility of the
accused Pugay. Having taken the can from under the engine of the ferris
wheel and holding it before pouring its contents on the body of the
deceased, this accused knew that the can contained gasoline. The stinging
smell of this flammable liquid could not have escaped his notice even
before pouring the same. Clearly, he failed to exercise all the diligence
necessary to avoid every undesirable consequence arising from any act
that may be committed by his companions who at the time were making
fun of the deceased. We agree with the Solicitor General that the accused
is only guilty of homicide through reckless imprudence defined in Article
365 of the Revised Penal Code, as amended. In U.S. vs. Maleza, et. al. 14
Phil. 468, 470, this Court ruled as follows:
A man must use common sense and exercise due reflection in all his
acts; it is his duty to be cautious, careful, and prudent, if not from
instinct, then through fear of incurring punishment. He is responsible
for such results as anyone might foresee and for acts which no one
would have performed except through culpable abandon. Otherwise
his own person, rights and property, all those of his fellow-beings,
would ever be exposed to all manner of danger and injury.
The proper penalty that the accused Pugay must suffer is an indeterminate
one ranging from four (4) months of arresto mayor, as minimum, to four (4)
years and two (2) months of prision correccional, as maximum. With
respect to the accused Samson, the Solicitor General in his brief contends
that "his conviction of murder, is proper considering that his act in setting
the deceased on fire knowing that gasoline had just been poured on him is
characterized by treachery as the victim was left completely helpless to
defend and protect himself against such an outrage" (p. 57, Rollo). We do
not agree.
There is entire absence of proof in the record that the accused Samson
had some reason to kill the deceased before the incident. On the contrary,
there is adequate evidence showing that his act was merely a part of their
fun-making that evening. For the circumstance of treachery to exist, the
attack must be deliberate and the culprit employed means, methods, or
forms in the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from any defense which the
offended party might make.
There can be no doubt that the accused Samson knew very well that the
liquid poured on the body of the deceased was gasoline and a flammable
substance for he would not have committed the act of setting the latter on
fire if it were otherwise. Giving him the benefit of doubt, it call be conceded
that as part of their fun-making he merely intended to set the deceased's
clothes on fire. His act, however, does not relieve him of criminal
responsibility. Burning the clothes of the victim would cause at the very
least some kind of physical injuries on his person, a felony defined in the
Revised Penal Code. If his act resulted into a graver offense, as what took
place in the instant case, he must be held responsible therefor. Article 4 of
the aforesaid code provides, inter alia, that criminal liability shall be
incurred by any person committing a felony (delito) although the wrongful
act done be different from that which he intended.
As no sufficient evidence appears in the record establishing any qualifying
circumstances, the accused Samson is only guilty of the crime of homicide
defined and penalized in Article 249 of the Revised Penal Code, as
amended. We are disposed to credit in his favor the ordinary mitigating
circumstance of no intention to commit so grave a wrong as that committed
as there is evidence of a fact from which such conclusion can be drawn.
The eyewitness Gabion testified that the accused Pugay and Samson were
stunned when they noticed the deceased burning (Tsn, June 1, 1983, pp.
16-17).<äre||anº•1àw>
The proper penalty that the accused Samson must suffer is an
indeterminate one ranging from eight (8) years of prision mayor, as
minimum, to fourteen (14) years of reclusion temporal, as maximum.
The lower court held the accused solidarily liable for P13,940.00, the
amount spent by Miranda's parents for his hospitalization, wake and
interment. The indemnity for death is P30,000.00. Hence, the indemnity to
the heirs of the deceased Miranda is increased to P43,940.00.
Both accused shall be jointly and severally liable for the aforesaid amount
plus the P10,000.00 as moral damages and P5,000.00 as exemplary
damages as found by the court a quo.
Accordingly, the judgment is affirmed with the modifications above-
indicated. Costs against the accused-appellants.
G.R. No. 139542 June 21, 2001
PEOPLE OF THE PHILIPPINES, vs.
INOCENCIO GONZALEZ, JR.,
DISSENTING OPINION
GONZAGA-REYES, J.:
Many unfortunate tragedies would not have happened if the improvident
use of a firearm did not exacerbate a simple altercation over traffic. This is
one of them.
On a day intended to pay homage to the dead, a pregnant woman was
shot to death in the course of her husband’s altercation with the accused-
appellant and his son along the Garden of Remembrance within the Loyola
Memorial Park in Marikina. The trial court found the accused guilty of the
complex crime of murder and two counts of frustrated murder and
accordingly sentenced him to death. This case is before us on automatic
review.
The details of what actually transpired in the few seconds immediately
preceding the shooting are controverted by both parties but the events
leading to this tragedy are not disputed.
In the afternoon of October 31, 1998 at about 2:30 p.m. both the families of
the private complainant Noel Andres and that of the accused-appellant
Inocencio Gonzalez were on their way to the exit of the Loyola Memorial
Park. The appellant was driving a white Isuzu Esteem with his grandson
and three housemaids, while the private complainant was driving a maroon
Toyota FX with his pregnant wife Feliber Andres, his two year old son,
Kenneth, his nephew Kevin and his sister-in-law, Francar Valdez. At the
intersection near the Garden of Remembrance, while the accused-
appellant Gonzalez was turning left towards the exit and the complainant
Noel Andres was headed straight along the road to the exit their two
vehicles almost collided. Noel Andres was able to timely step on the
brakes. The appellant continued driving along his way while Noel Andres
drove behind the appellant’s vehicle for some time and cut him off when he
found the opportunity to do so.1 Noel Andres then got out of his vehicle and
knocked on the appellant’s car window. 2 This is as far as their versions of
the incident coincide.
The prosecution’s version of the incident is that Noel Andres calmly told
the appellant to be careful with his driving and informed the latter that he,
Andres, is with his family and to this Gonzalez allegedly replied, "Accidents
are accidents, what’s your problem." Andres stated that he saw the
appellant turning red in anger so he decided to go back to his vehicle when
he was blocked by the appellant’s son who said, "Anong problema mo sa
erpat ko." Andres testified that he felt threatened and so he immediately
boarded his vehicle, sat at the driver’s seat, closed the door, and partially
opened the car window just wide enough to talk back to appellant’s son,
Dino. Suddenly, one of his passengers said "Binaril kami". He turned to his
wife Feliber Andres and saw her bloodied and unconscious. He turned
around and saw his son Kenneth and nephew Kevin were also wounded.
Andres admitted in court that he and Dino were shouting at each other so
that he did not hear the shot. Andres then got out of his vehicle to warn the
appellant not to flee. He then took the wounded members of his family to
the exit where there was an ambulance standing by. The three were then
taken to the Sta. Monica Hospital and were later transferred to the Quezon
City Medical Center.
The defense’s version of the incident is that Andres cut the appellant’s path
by positioning his FX obliquely along the appellant’s lane from the latter’s
left side. Andres then got out of his vehicle, stood beside the appellant’s
car window, and repeatedly cursed the appellant, "Putang ina mo, ang
tanda-tanda mo na hindi ka pa marunong magmaneho. Ang bobo-bobo
mo."3 The appellant stayed inside his car and allegedly replied, "Pasensiya
ka na hindi kita nakita, nasilaw ako. Aksidente lang." The appellant
Gonzalez and another witness for the defense, Quidic, testified that Noel
Andres went back to his vehicle to move it in such a way that it is straight
in front of the appellant’s car. Andres allegedly got out of his vehicle again
and continued shouting and cursing at the appellant. 4 Dino, the appellant’s
son, who rode in another vehicle decided to go back when he did not see
his father’s car behind him. When Dino arrived at the scene he confronted
Andres and the two had an altercation. Both Dino and the appellant stated
that Andres remained outside his vehicle during the altercation with Dino.
When Andres suddenly reached for something inside his vehicle, Dino
froze on the spot where he stood. This prompted the appellant to get his
gun from the glove compartment and feeling that his son was threatened
he got out of his car ready to shoot. When he saw that Andres did not have
a weapon he put down his hand holding the gun. This is when the
appellant’s daughter Trisha who was riding in Dino’s car arrived at the
scene, walked past Dino and Andres, and pushed the appellant away. She
hugged her father and in the process held his hand holding the gun. The
appellant tried to free his hand and with Trisha’s substantial body weight
pushing against him the appellant lost his balance and the gun accidentally
fired. The accused stated that he did not know he shot somebody until the
private complainant’s sister-in-law, Francar Valdez, got out of the vehicle
carrying a bloodied small boy. The defense claims that the appellant did
not try to flee and even told the complainant’s sister-in-law to take the
wounded to the hospital.
On November 4, 1998 an Information for the complex crime of Murder,
Double Frustrated Murder and Attempted Murder was filed against herein
accused-appellant:
"That on or about the 31st day of October 1998, in the city of Marikina,
Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there willfully, unlawfully and
feloniously with intent to kill, attack, assault and employ personal
violence by means of treachery and abuse of superior strength upon
the person of Noel Andres y Tomas, by then and there shooting him
with a Glock cal. 9mm pistol but instead hitting one Feliber Andres y
Ordoño, on the left back portion of her head, thereby inflicting upon her
serious and mortal wound which directly caused her death, as well as
hitting John Kenneth Andres y Ordoño and Kevin Valdez y Ordoño
physical injuries which ordinarily would have caused their death, thus
performing all the acts of execution which would have produced the
crime of murder as a consequence, but nevertheless did not produce it
by reason of some cause or causes, independent of their will, that is,
the timely and able medical assistance rendered to John Kenneth
Andres y Ordoño and Kevin Valdez y Ordoño to their damage and
prejudice as well as to the damage and prejudice of the heirs of Feliber
Andres y Ordoño."
On arraignment the accused-appellant pleaded "not guilty" to the crimes
charged.
The case records show that Feliber Andres, the wife of Noel Andres did not
die instantaneously. She lived to give birth to a baby girl 5 by caesarian
section and died the following morning on November 1, 1998. The Autopsy
Report6 states:
"FINDINGS: Fairly nourished, fairly developed female cadaver, with
post mortem lividity. Conjunctivae are pale. Lips and nail beds are
cyanotic. Surgical incisions were noted at left tempero-parietal region.
Surgical incisions is also noted at the abdominal region secondary to a
caesarian section.
HEAD: (1) gunshot wound, point of entry, left fronto-temporal region,
measuring 1 by 0.9 cm, 9 cm from the anterior midline, with a uniform
abraided collar measuring 0.2 cm., directed posteriorwards, slightly
downwards, and medialwards, fracturing the frontal, and left temporal
bones, lacerating the left cerebral hemisphere, with a deformed slug
fragment embedded and recovered at the posterior lobe of the left
cerebral hemisphere. (2) hematoma, left orbital region, measuring 4.5
by 2 cm, 4 cm from the anterior midline. There are subdural and
subarachnoidal hemorrages. Stomach contains 1 ½ glassful of partially
digested food particles mostly rice and meaty material.
CONCLUSION: Cause of death is gunshot wound on the head."
Kenneth and Kevin were treated for extraction of metallic fragments on
their faces. They were discharged from the hospital six days later or on
November 6, 1998.
On June 25, 1999 the trial court rendered judgement finding that the
shooting was attended by the qualifying circumstance of treachery and
held the appellant guilty of the complex crime of murder for the death of
Feliber Andres and for two counts of frustrated murder for the injuries
sustained by Kenneth Andres and Kevin Valdez and sentenced the
appellant to the maximum of the imposable penalty which is death. The
trial court held:
"Beforehand, the Court takes note of the judicial admissions on the
verbal declarations of the accused that the court ‘a quo’ has jurisdiction
over the case; that he owns the black Gluck 9 mm. automatic pistol;
that the said gun will never fire even if he drops it; that only one bullet
was fired from his gun; and that the victim Feliber Andres is already
dead. With this exegesis and the declarations in open court of the
eyewitness of both the prosecution and some of the defense, there is
no real dispute on the antecedent facts showing that the accused fired
on Noel Andres but instead hit and caused the fatal injuries to the
victims John Kenneth Andres, Kevin Valdez and Feliber Andres
resulting to the ultimate death of the latter. The court takes further
judicial admissions of the accused made in their memorandum
demonstrating the existence of five (5) sequences of events leading to
the death of Feliber Andres and the wounding of John Kenneth Andres
and Kevin Valdez which are as follows: First is when Noel Andres
overtook the car driven of the accused and cut cross his path; Second
is when Noel Andres alighted from his vehicle and confronted
Inocencio; Third is when Noel had an argument with Dino Gonzalez,
the son of the accused; Forth is when, Inocencio seeing his son having
confrontation with Noel, got his gun to protect Dino; and Fifth is when
Inocencio had a struggle with his daughter. Trisha Gonzalez, who tried
to reach for the gun and as a result of which Inocencio lost his balance
and as he was falling backward to his side, his right arm holding the
gun hit the rear window of the Tamaraw FX van and the gun
accidentally went off hitting the victim, who were all then inside the van.
The court likewise take judicial notice on the feature of the automatic
pistol used in this case which is capable of unquestionable
demonstration or ought to be known to judges because of their judicial
functions. Practically, the stages before an automatic firearm would be
capable of firing are as follows: 1) the loading of a bullet into the
chamber of the gun; 2) the cocking of the hammer, if uncocked; 3) the
releasing of the safety pin; 4) the pressing of the trigger to unleash the
hammer so that the firing pin will hit the cartridge to propel the bullet
out to hit the target. Realistically, it demonstrates that a gun will not fire
even if the bullet is loaded in its chamber if the hammer is uncocked; or
even if cocked if the safety pin is engaged; or even if the safety pin is
disengaged if the trigger will not be pressed. However, even if the gun
is fired if it is not aimed and leveled to the target, the purpose of firing it
shall not be achieved. Contrarily, once a gun is drawn against a
person, the means methods and forms employed for its execution is
already conceived. And once it is tended directly and specifically to
insure its execution, it consequently produces the conscious and
deliberate intention. Finally if all the acts of execution had been
effectively done without risk on the part of the offender arising from any
defense coming from the offended party, treachery results. In brief,
there is treachery when the offender commits any crime against
persons, employing means, methods and forms in the execution
thereof which tend directly and specially to insure its execution, without
risk to himself arising from any defense which the offended party might
make (People vs. Mesa 276 SCRA 407; People vs. Carlos Patrolla, Jr.
G. R. No. 112445, March 7, 1996). To appreciate treachery two (2)
conditions must be present, to wit: 1) the employment of means of
execution that give the person attacked no opportunity to defend
himself or retaliate; and 2) the means of execution were deliberately or
consciously adopted. (People vs. Azugue, 268 SCRA 711; People vs.
Peña, G. R. No. 116022, July 1, 1998, p. 1)
In the case at bar and guided with the above-quoted doctrinal cases,
logically, the accused is positive of the crime charged against him.
When he alighted with a drawn gun to protect his son and released all
the safety measures of his gun as he fired and missed at Noel who
was then unarmed, but instead hit Kevin Valdez, John Kenneth Andres
and Feliber Andres which resulted to the death of the latter,
demonstrate that the accused has executed the two (2) conditions to
generate treachery enough to qualify the crime committed to murder."
"WHEREFORE, foregoing premises considered, the accused
Inocencio Gonzalez, Jr., y Esquivel is hereby found guilty beyond
reasonable doubt of the complex crime of Murder with Double
Frustrated Murder and Attempted Murder penalized under Art. 248, as
amended by Republic Act No. 7659 in relation to Article 48 of the
Revised Penal Code and is sentenced to suffer the maximum penalty
of Death by lethal injection.
The accused is further ordered to pay the following civil liabilities:
1. To the private complainant Noel Andres:
a) the amount of P50,000.00 as indemnity for the death of Feliber
Andres;
b) the amount of P3,363,663.60 as indemnity for the loss of earning
capacity of the deceased Feliber Andres;
c) the amount of P98,384.19 as funeral expenses;
d) the amount of P271,800.56 for the hospitalization expenses incurred
for the injuries sustained by the deceased Feliber Andres and the
amount of P23,622.58 representing the expenses for the untimely
delivery of the child Ma. Clarisse Andres;
e) the amount of P51,566.00 representing the hospitalization expenses
for the injuries sustained by the victim John Kenneth Andres;
f) the amount of P150,000.00 as moral damages suffered for the
untimely death of his wife Feliber Andres and for the injuries caused to
his son John Kenneth Andres;
g) the amount of P50,000.00 as and by way of attorney’s fees and a
fee of P2,000.00 per appearance; and
h) the costs of the suit.
2. To the private complainant Nicasio Valdez:
 a) the amount of P73,824.75 as actual damages for the injuries
sustained by the victim Kevin Valdez; and
b) the amount of P75,000.00 as and by way of moral damages. SO
ORDERED."
In his appeal, Gonzalez submits the following assignments of error:
"1. The trial court committed reversible error when it found that
treachery was present.
2. The trial court committed reversible error when it presumed that
there was treachery by taking judicial notice of the feature of the
automatic pistol involved in this case.
3. The trial court committed reversible error when it violated the
constitutional right of the accused-appellant to due process when it
took judicial notice of the feature of the automatic pistol involved in this
case without notice.
4. The trial court committed reversible error when it found Accused-
Appellant guilty beyond reasonable doubt of the complex crime of
Murder with Double Frustrated Murder.
5. The trial court committed reversible error when it failed to appreciate
the mitigating circumstances of passion or obfuscation, lack of intention
to commit so grave a wrong, provocation or threat on the part of the
offended party immediately preceded the act, incomplete defense of
relative, and voluntary surrender.
6. The trial court committed reversible error when it failed to find that
the shooting incident was accidental.
7. The trial court committed reversible error when it gave credence to
the testimonies of prosecution witnesses Elmer Ramos and Moises
Castro.
8. The trial court committed reversible error when it disregarded the
basic principle that the accused is presumed innocent and his guilt
must be proven beyond reasonable doubt.
9. The trial court committed reversible error when it ordered Accused-
Appellant to pay for the civil liabilities."
The appellant seeks a reversal and prays that judgment be rendered
exempting him from criminal and civil liabilities. Appellant declared that he
had no intention to shoot Noel Andres much less his wife nor the children.
He lost his balance when his daughter Trisha approached and pushed him
backwards to stop him from joining Dino and Noel Andres but the appellant
tried to free his right hand holding the gun and it accidentally fired. The
single bullet fired hit the last window on the left side of the Tamaraw FX.
The appellant claims that he did not see the passengers inside the vehicle
at the time of the shooting. This is corroborated by the testimony of two
witnesses for the prosecution who testified that the windows of Andres’
vehicle are heavily tinted so that a person outside the vehicle would not be
able to see if there are people inside. It is also argued that had the
appellant intended to shoot Noel Andres he could have simply done so by
shooting at him directly. The defense asserts that the evidence for the
prosecution failed to establish the attendance of treachery and without the
attendance of the said qualifying circumstance the crime committed is
homicide, not murder.
The appellant also points out that the trial court made the factual finding
that the shooting happened in a matter of seconds and that it was
preceded by a heated argument between the parties. Such being the case,
it is argued that the shooting could not have been attended by treachery.
There was no time for the appellant to consciously and deliberately employ
the mode of attack against Noel Andres, nor against any one of the actual
victims, to insure its execution and at the same time to eliminate any form
of retaliation from the alleged intended victim. And yet, the trial court,
contrary to the evidence on record, held that the loading of the bullet into
the chamber of the gun, the cocking of the hammer, the release of the
safety pin and the pulling of the trigger by the appellant of his automatic
pistol constitute conscious and deliberate effort to employ the gun as a
means of committing the crime and resultantly, qualified its commission by
treachery. Such a finding presupposes that the appellant loaded the gun to
shoot Noel Andres only that very moment when his son Dino and Noel
Andres were arguing. This conclusion has no basis on record. The
appellant testified that his gun was loaded before he left the house and two
witnesses for prosecution stated in court that a few seconds after Noel
Andres and Dino started shouting at each other, the appellant got out of his
car and shot at the last window on the left side of the complainant’s
vehicle. Further, the appellant assigns as error the procedure adopted by
the trial court in taking judicial notice that the gun used by the appellant is
an automatic pistol and as such, it will not fire unless aimed at the intended
target. The procedure taken by the trial court is contrary to Section 3, Rule
129 of the Rules of Court.7 The trial court should have given both parties
the opportunity to present evidence, expert evidence, if necessary, to
inform the court on the subject matter. The appellant argues that the
factual finding borne by such erroneous procedure is equally erroneous.
The gun used by the appellant is a semi-automatic and not an automatic
pistol which means that the pistol used has no external safety pin to be
released and that the hammer need not be cocked. The pulling of the
trigger, intentional or not, will fire the gun. The use of a semi-automatic
pistol does not necessarily imply treachery.
Appellant also argues that the testimonies of prosecution witnesses Castro
and Ramos were improperly given credence by the trial court. The
appellant contends that a reading of their testimonies would show that their
narration of the incident is rather absurd and would show that they did not
witness the actual shooting. Defense witnesses, Gonzalez and his
daughter, Trisha, on the other hand, testified that Castro and Ramos
arrived at the scene only after the shooting.
As regards the injuries sustained by Kevin and Kenneth, it is argued that
considering that there was no intent to kill and that they stayed in the
hospital only for six days, the crime committed is physical injuries. It is
argued that the trial court erred in awarding damages. The bunch of
receipts allegedly representing the medical expenses incurred for the
injuries sustained by the victims was erroneously admitted in evidence,
without first requiring the prosecution to establish the authenticity of the
receipts. The appellant also points out that the award for loss of earning
capacity has no basis as the deceased was unemployed at the time of the
incident.
Finally, the appellant assigns as error the trial court’s rejection of the
mitigating circumstances pleaded by the defense which allegedly attended
the commission of the crime, i.e., lack of intent to commit so grave a
wrong, passion and obfuscation, incomplete defense of a relative and
voluntary surrender. The appellant asserts that these mitigating
circumstances were duly proven during the trial and are supported by the
evidence on record. The private complainant Noel Andres testified that he
saw the appellant getting red in anger after they, Andres and the appellant,
had a heated argument immediately prior to the shooting. These admitted
circumstances show that the appellant was not in his proper state of mind
at the time of the shooting. First, he was angered by Andres’ abusive
language and later he got out of his car with a loaded gun to protect his
son from a perceived danger. The appellant clams that his willingness to
help the injured and his voluntary surrender to the police should likewise
be considered as mitigating circumstances in the imposition of penalties.
The Solicitor-General agrees with the appellant that the crime was not
attended by the qualifying circumstance of treachery and hence the crime
committed by the appellant for the death of Feliber Andres is homicide, not
murder. The appellee takes into consideration that the shooting was
preceded by a heated argument and that the supposed victim was placed
on guard that attack was imminent. It also appears that the shooting was
done impulsively. There is no evidence that the appellant deliberately
employed the means of attack to insure execution of the crime and at the
same time eliminate the risk of retaliation from the private complainant.
The appellee also agrees with the appellant that the trial court erred in
equating the use of an automatic pistol with treachery. The trial court made
the factual finding that the appellant’s automatic pistol would not fire unless
aimed and the trigger is deliberately pulled and hence treachery attended
the shooting. The appellee submits that if we follow the reasoning of the
trial court it would appear that the appellant intended to shoot at the
complainant’s vehicle only as the shot was fired at the last window on the
left side of the FX away from where Andres was allegedly seated. The fact
that the gun was drawn and fired does not mean that the mode of attack
was consciously and deliberately employed.
However, with respect to the injuries sustained by Kevin and Kenneth, the
appellee disagrees with the contention that the appellant is liable only for
slight physical injuries. The injuries sustained by both children are head
injuries and could have caused their death if not for the immediate medical
attention given them. The number of days spent in the hospital is not
determinative of the severity of the wounds. Their nature and location
should instead be considered. The appellant cannot escape liability for
frustrated homicide for the injuries of the two children on the ground that he
fired a single shot at the vehicle of Noel Andres. He is liable for all the
consequences of his unlawful act even if the crime committed is different
from that intended.
As regards the pleaded mitigating circumstances, appellee asserts that
none can be considered in favor of the appellant. There is evidence on
record that the appellant did not voluntarily surrender to the police and it
appears from the testimonies of witnesses that he entertained the
possibility of flight but his car was stuck in traffic along the exit of the
memorial park. His pretense of incomplete defense of a relative is belied
by his own admission that when he saw that Noel Andres did not have a
gun he lowered his hand holding the gun. There was allegedly no threat on
the life of his son at the time of the shooting, no uncontrollable fear nor
irresistible force that would mitigate the commission of the offense.
The Solicitor-General also seeks to uphold the pecuniary awards granted
by the trial court. The appellee alleges that it is not denied by the appellant
that Feliber Andres was a 38 year old registered nurse at the time of the
shooting. Although she was then unemployed on account of her
pregnancy, she still had earning capacity and the trial court properly
applied the salary of a government nurse under the salary standardization
scheme in the computation of damages for the loss of earning capacity.
The receipts presented in evidence by the prosecution to establish
hospitalization and other medical expenses incurred by the private
complainants by reason of the injuries suffered by the victims were duly
authenticated by the prosecution witnesses and there is no dispute that
they are exact copies of the original receipts presented in court. The
objections raised by the appellant in this regard were duly met by the
evidence presented by the private complainants.
In sum, the appellee asserts that considering that the appellant fired a
single shot and in the process committed four offenses the appellant
should be held liable for the complex crime of homicide for the death of
Feliber Andres, double frustrated homicide against Kevin and Kenneth and
attempted homicide against Noel Andres. Under the rules on complex
crimes the penalty for the gravest offense, i.e., reclusion temporal for
homicide, should be imposed in its maximum period.
The appeal has merit.
Treachery under par.16 of Article 14 of the Revised Penal Code is defined
as the deliberate employment of means, methods or forms in the execution
of a crime against persons which tend directly and specially to insure its
execution, without risk to the offender arising from the defense which the
intended victim might raise. For treachery to be appreciated two elements
must concur: 1) the employment of means of execution that would insure
the safety of the accused from retaliatory acts of the intended victim and
leaving the latter without an opportunity to defend himself and 2) the
means employed were deliberately or consciously adopted by the
offender.8 The suddenness of the attack, the infliction of the wound from
behind the victim, the vulnerable position of the victim at the time the attack
was made or the fact that the victim was unarmed do not by themselves
render the attack as treacherous. 9 This is of particular significance in a
case of an instantaneous attack made by the accused whereby he gained
an advantageous position over the victim when the latter accidentally fell
and was rendered defenseless.10 The means employed for the commission
of the crime or the mode of attack must be shown to have been
consciously or deliberately adopted by the accused to insure the
consummation of the crime and at the same time eliminate or reduce the
risk of retaliation from the intended victim.11 Accordingly, it has been
consistently held by this court that chance encounters, impulse killing or
crimes committed at the spur of the moment or that were preceded by
heated altercations are generally not attended by treachery for lack of
opportunity of the accused to deliberately employ a treacherous mode of
attack.12 Thus, the sudden attack made by the accused due to his
infuriation by reason of the victim’s provocation was held to be without
treachery. Sudden attacks made by the accused preceded by curses and
insults by the victim or acts taunting the accused to retaliate or the
rebellious or aggressive behavior of the victim were held to be without
treachery as the victim was sufficiently forewarned of reprisal. 13 For the
rules on treachery to apply the sudden attack must have been
preconceived by the accused, unexpected by the victim and without
provocation on the part of the latter.14
This Court has also had occasion to state that whether or not the attack
succeeds against its intended victim or injures another or whether the
crime committed is graver than that intended is immaterial, as long as it is
shown that the attack is attended by treachery, the said qualifying
circumstance may still be considered by the court.15 Thus, the determining
factor on whether or not the commission of a crime is attended by
treachery is not the resulting crime committed but the mode of attack
employed in its execution.16
Treachery is never presumed. It is required that the manner of attack must
be shown to have been attended by treachery as conclusively as the crime
itself.17
We affirm the recommendation of the Solicitor-General that the shooting
was not attended by treachery and accordingly the crime committed for the
death of Feliber Andres is homicide and not murder.
The encounter between Noel Andres and the appellant was a chance
encounter. They were total strangers before their vehicles almost collided
at an intersection inside the memorial park. Unfortunately, heated
exchange of remarks that followed the near collision was fanned by a short
temper, which in the case of the appellant, was augmented by the
improvident use of a firearm.
From a reading of the transcript of the testimonies of the witnesses, it
would appear that Noel Andres, who had his pregnant wife and child with
him, among others, on board the Tamaraw FX provoked the altercation.
After the near collision of his vehicle with that of the appellant, he tailed
behind the latter’s car towards the exit until he had the chance to cut him
off to scold him for his failure to observe traffic rules.18 Andres stated in
court that he calmly told the appellant to be careful with his driving and
denied that he was angry when he alighted from his vehicle to confront the
appellant.19 His statement is belied by the witnesses, two prosecution
witnesses included, who uniformly testified that Andres quarreled with or
shouted and cursed at the appellant for the latter’s recklessness at the
intersection.20 The appellant narrated in court that Andres repeatedly
shouted at him, "Putang ina mo, ang tanda-tanda mo na gago ka
pa".21 Andres’ hostile behavior towards the appellant is evident from his
statement in court that he noticed the appellant turning red in anger. 22 It is
highly improbable for Gonzalez to have turned red in anger had Andres
been polite, as he claims he was, in scolding Gonzalez. Andres could have
simply communicated to the appellant his disgust for the latter’s bad driving
when he overtook the appellant’s car near the scene of the shooting but
instead he chose to block the appellant’s path, insult and virtually provoke
the appellant to retaliate.
Andres stated in court that when he noticed Gonzalez’ infuriation he
immediately walked towards his vehicle, because according to him the
altercation was over. On his way to his FX he met another man, whom he
later found out to be the appellant’s son, Dino. It appears that the
altercation was far from over because again Andres had a shouting match
this time with Dino.23 In a matter of seconds, the appellant alighted from his
car and fired a single shot at the last window on the left side of Andres’
vehicle at an angle away from Noel Andres. The single bullet fired hit
Feliber Andres on the forehead near the temporal region above the left eye
and the two children with metallic fragments of the bullet on their faces,
one at the cheek and the other below his left eye.
The prosecution did not present evidence as to the exact seating
arrangement of the victims inside the vehicle; suffice it to say, that an
examination of the pictures of the vehicle24 one of which shows a mass of
blood stains on the left side (towards the driver’s seat) of the white seat
cover below the head rest25, would show that the deceased Feliber must
have been seated at the front passenger’s seat and the children at the
middle row behind the driver’s seat.26 Another picture shows a bullet hole
on the last window on the left side of the vehicle27 and another shows that
the front windshield appears undamaged.28 A ballistics expert appeared in
court for the prosecution and testified that the bullet fired at the FX came
from the appellant’s gun, which fact was admitted by the defense. The
prosecution did not inquire from the ballistics expert regarding the
trajectory of the bullet or the approximate distance of the appellant from the
FX when he fired his gun to establish whether or not the appellant aimed
for Noel or Feliber or simply fired indiscriminately at the latter’s vehicle. 29
At first blush it would seem that the shooting of Feliber Andres was
attended by treachery as she was inside the FX witnessing her husband’s
altercation, first, with the appellant then with the appellant’s son, totally
defenseless from the shot that came suddenly from her left side. Public
outrage over the death of Feliber was heightened by the fact that she was
then pregnant with her second child and her death left a new born baby girl
and a two year old boy motherless.
However, a meticulous review of the evidence prevents a conclusive
finding of treachery and any doubt must be resolved, like the fact of the
commission of an offense, in favor of the accused. The pictures indicate
that Gonzalez fired at the FX at an angle away from Noel Andres and that
Gonzalez was not aiming at anybody in particular. It is not disputed that the
appellant’s car was directly behind the complainant’s FX and that Gonzalez
who was then seated at the driver’s seat alighted from his car, took a few
steps then fired at the left side of the FX. Whether Noel Andres was seated
at the driver’s seat inside his vehicle when Gonzalez fired at the FX, as the
prosecution asserts, or was standing by the door of the driver’s seat
outside his vehicle, as the defense submits, it is clear that the shot was
fired away from Noel Andres. The bullet hit Feliber near her temple above
the left eye indicating that she was facing left towards her husband when
the shot was fired.30 The direct hit on Feliber’s head shows that the angle of
the shot was indeed away from Noel Andres. Even the eyewitness for the
prosecution testified that had the appellant intended to kill Noel Andres he
could have shot directly at him, considering that Noel Andres was just a
few steps away from him31 and that Noel Andres was visible from the
outside because his window was partially open. 32 The pictures show that
the bullet hole was on the third window on the left side of the Tamaraw
FX33 belying any attempt to shoot Noel Andres. Two prosecution witnesses
Ramos and Castro unequivocally declared that "nothing or no one"
prevented Gonzalez from shooting directly at Noel Andres and that
Gonzalez could have simply done so if he wanted to. But after alighting
from his car, Gonzalez took a few steps and shot at the left side window of
the FX.34
The fact that the appellant fired his gun from behind the victim does not by
itself amount to treachery. There is no evidence on record that the
appellant deliberately positioned himself behind the victim to gain
advantage over him when he fired the shot. On the contrary, the evidence
before us reveals that the position of the appellant’s car was not of his own
doing but it became so when Noel Andres overtook his car and cut off his
path.
We note further, that the appellant did not act belligerently towards Noel
Andres even after the latter cut off the appellant’s path. Andres stated in
court that the appellant did not alight from his car nor opened his window
until he, Andres, tapped on it.35 For his part Gonzalez categorically stated
in court that he did not point his gun nor threatened Andres during their
short spat.36 Gonzalez, although he had his gun in his car, did not react to
Andres’ cursing until the latter was having an altercation with the
appellant’s son, Dino. Gonzalez claimed that he perceived that his son was
in imminent danger.37 Whether he overreacted or he shot at Andres’ vehicle
out of rage over Andres’ aggressive behavior, one thing appears clear to
us, that the shooting was not done in cold blood. It is undisputed that the
windows of the FX are heavily or darkly tinted so that a person outside
would not see if anybody was inside. 38 The pictures of the FX39 on record
confirm the testimonies of both prosecution and defense witnesses that the
other passengers of the FX were not visible from the outside. Gonzalez
admitted in court that Noel Andres mentioned that he has passengers with
him while he was shouting and cursing at Gonzalez but there is no
indication that Gonzalez had any opportunity to see the passengers when
he fired the shot. The totality of the evidence on record fails to support a
conclusion that Gonzalez deliberately employed the mode of attack to gain
undue advantage over the intended nor the actual victim. Without any
decisive evidence to the contrary, treachery cannot be considered; thus the
crime committed is homicide.40
The trial court’s finding that the loading of the gun, the cocking of the
hammer and finally the pulling of the trigger constitute a deliberate effort on
the part of appellant to use the gun as a means of a treacherous attack is
patently erroneous. A single and continuous attack cannot be divided into
stages to make it appear that treachery was involved. 41 The entire incident
happened in a matter of minutes, as testified to by witnesses, and as noted
by the trial court.42 It was error to our mind for the trial court to divide the
assault in stages to arrive at the conclusion that the mode of attack was
consciously employed by the appellant. Contrary to the finding of the trial
court that the appellant prepared the gun before getting out of his car, the
appellant testified that he loaded his gun before he left the house and that
it was ready to fire when he alighted his car. There was no time for him to
reflect on the mode of attack since he just picked up his gun and alighted
from his car and shot at the FX a few seconds after Dino and Noel Andres
started shouting at each other.43 We note further that the trial court pointed
out that from the fact that the appellant prepared his gun to shoot, this was
an indication of the deliberate employment of the gun as a means to kill;
i.e. that the use of an automatic pistol shows that the shooting was
attended by treachery.
We do not agree that the weapon used, by itself, is determinative of
treachery, unless it is shown, and it is not herein shown, that the appellant
deliberately used the gun to insure the commission of the crime and to
render the unarmed victim defenseless. As discussed above, the
encounter between the appellant and the Andresses was a chance
encounter and the appellant’s gun was in the glove compartment of his car
even before he left his house. The shooting was clearly a spur of the
moment or impulsive decision made by the appellant preceded by a heated
altercation at the instance of the private complainant. Jurisprudence
teaches us that under the circumstances, treachery is not obtaining. In the
case of People vs. Valles,44 the accused, a security guard, fired his
Armalite and mortally wounded the victim when the latter approached the
accused four times insisting on entering the workplace wearing improper
uniform, then cursed and insulted and challenged the accused to a fight.
We held that the shooting was not attended by treachery as the shooting
was preceded by a heated altercation at the instance of the victim. It is to
be noted that the kind of weapon used against an unarmed victim was not
taken into consideration in determining the attendance of treachery; it is
the mode of attack employed by the accused under the particular
circumstances of a case that determines its attendance in the commission
of a crime. We find that the prosecution has not discharged its burden to
show that the shooting was attended by treachery and we are convinced
that the crime committed for the death of Feliber Andres is homicide.
As regards the injuries sustained by the two children we find that the crime
committed are two counts of slight physical injuries. The intent to kill
determines whether the crime committed is physical injuries or homicide
and such intent is made manifest by the acts of the accused which are
undoubtedly intended to kill the victim.45 In a case wherein the accused did
not know that a person was hiding behind a table who was hit by a stray
bullet causing superficial injuries requiring treatment for three days, the
crime committed is slight physical injuries. 46 In case of doubt as to the
homicidal intent of the accused, he should be convicted of the lesser
offense of physical injuries.47 We have earlier pointed out that the intent to
kill is absent in this case. It was also found that one small metallic fragment
was extracted from Kenneth below his left eye while another fragment was
extracted from Kevin "immediately below the level of his skin before the
cheek bone".48 An examination of the testimonies of the attending
physicians, showed that the wounds sustained by the two children from the
metallic fragments are not in themselves fatal but may cause death if left
untreated. One of the attending physician testified in court that the
fragments themselves "will not cause complication, it is the entry of the
fragment" or the open wound that is susceptible to infection. 49 Two small
fragments were no longer extracted from the face of Kevin Valdez, as the
doctor deemed it to be without danger of complication. 50 We note that the
various sizes of the metallic fragments were not established, at least to
give an indication of the severity of the wounds sustained. Both children
were discharged after six days of treatment and there is no showing that
they required subsequent treatment or that they were immobilized for a
greater number of days by reason of the injuries sustained. Considering
the nature and location of their injuries and the number of days required for
their treatment, we find that the crime committed for the injuries sustained
by the children are two counts of slight physical injuries under Art. 266 of
the Revised Penal Code which imposes a penalty of arresto menor or
imprisonment for 1 to 30 days for injuries sustained that has incapacitated
the victim for one to nine days or required medical attendance for the same
period. For evident lack of criminal intent to kill the complainant, Noel
Andres, as above stated, the information for attempted homicide must fail.
The mitigating circumstances of voluntary surrender, passion and
obfuscation, incomplete defense of a relative and lack of intent to commit
so grave a wrong, pleaded by the defense, were not convincingly proved
and none can be considered in the imposition of penalties. The testimony
of prosecution witness contradicts the appellant’s pretense of voluntary
surrender. Witness Ramos testified that the appellant drove away towards
the gate of the memorial park while he was questioning him after the
shooting and had not Noel Andres and onlookers blocked his path the
appellant could have fled the scene of the crime. 51
The mitigating circumstance of passion and obfuscation is also not
obtaining. For this mitigating circumstance to be considered, it must be
shown that (1) an unlawful act sufficient to produce passion and
obfuscation was committed by the intended victim; (2) that the crime was
committed within a reasonable length of time from the commission of the
unlawful act that produced the obfuscation in the accused’s mind; and that
(3) "the passion and obfuscation arose from lawful sentiments and not from
a spirit of lawlessness or revenge".52 Noel Andres’ act of shouting at the
appellant’s son, who was then a nurse and of legal age, is not sufficient to
produce passion and obfuscation as it is claimed by the accused. Besides,
the appellant’s son, Dino was shouting back at Noel Andres. It was not a
case wherein the appellant’s son appeared helpless and oppressed that
the appellant lost his reason and shot at the FX of Noel Andres. The same
holds true for the appellant’s claim of provocation on the part of Noel
Andres. Provocation must be sufficient to excite a person to commit the
wrong committed and that the provocation must be commensurate to the
crime committed. The sufficiency of provocation varies according to the
circumstances of the case.53 The aggressive behavior of Noel Andres
towards the appellant and his son may be demeaning or humiliating but it
is not sufficient provocation to shoot at the complainant’s vehicle.
The plea for the appreciation of the mitigating circumstance of incomplete
defense of a relative is also unmeritorious since the act of Andres in
cursing and shouting at the appellant and his son do not amount to an
unlawful aggression against them, Dino Gonzalez. Finally, the plea for the
appreciation of the mitigating circumstance of lack of intent to commit so
grave a wrong is likewise devoid of merit. This mitigating circumstance is
obtaining when there is a notable disparity between the means employed
by the accused to commit a wrong and the resulting crime committed. The
intention of the accused at the time of the commission of the crime is
manifested from the weapon used, the mode of attack employed and the
injury sustained by the victim.54 The appellant’s use of a gun, although not
deliberately sought nor employed in the shooting, should have reasonably
placed the appellant on guard of the possible consequences of his act. The
use of a gun is sufficient to produce the resulting crimes committed.
For the death of Feliber Andres, and in the absence of any mitigating
circumstance, the appellant is hereby sentenced to an indeterminate
sentence of 8 years and 1 day of prision mayor, in its medium period, as
minimum to 14 years 8 months and 1 day of reclusion temporal in its
medium period, as maximum. For each count of the slight physical injuries
committed against Kenneth Andres and Kevin Valdez, the appellant is
hereby sentenced to 20 days of arresto menor in its medium period.
The rules on the imposition of penalties for complex crimes under Art. 48 of
the Revised Penal Code are not applicable in this case. Art. 48 applies if a
single act constitutes two or more grave and less grave felonies or when
an offense is a necessary means of committing another; in such a case,
the penalty for the most serious offense shall be imposed in its maximum
period. Art. 9 of the Revised Penal Code in relation to Art. 25 defines grave
felonies as those to which the law attaches the capital punishment or
afflictive penalties from reclusion perpetua to prision mayor; less grave
felonies are those to which the law attaches a penalty which in its
maximum period falls under correctional penalties; and light felonies are
those punishable by arresto menor or fine not exceeding two hundred
pesos. Considering that the offenses committed by the act of the appellant
of firing a single shot are one count of homicide, a grave felony, and two
counts of slight physical injuries, a light felony, the rules on the imposition
of penalties for complex crimes, which requires two or more grave and/or
less grave felonies, will not apply.
The pecuniary award granted by the trial court for actual damages was
duly established by the testimonies of the prosecution witnesses as
supported by the original receipts for hospitalization and other medical
expenses presented in evidence by the prosecution. The award for loss of
earning capacity is likewise sustained for the reason that while Feliber
Andres was pregnant and was unemployed at the time of death, it is not
disputed that she was a registered nurse and had earning capacity. Noel
Andres also testified that he and his wife had plans to go back to Saudi
Arabia to work after Feliber had given birth to their second baby. While
there is no evidence as to Feliber’s actual income at the time of her death,
in view of her temporary separation from work because of her pregnancy,
we do not consider it reversible error for the trial court to peg her earning
capacity to that of the salary of a government nurse under the salary
standardization law, as a fair estimate or reasonable assessment of her
earning capacity at the time of her death. It would be grossly inequitous to
deny her spouse and her minor children damages for the support that they
would have received, considering clear evidence on record that she did
have earning capacity at the time of her death.

The awards for moral damages for the death of Feliber Andres and for the
injuries sustained by the two children, which under the circumstances are
reasonable, are likewise sustained.

WHEREFORE, the decision of the trial court is hereby MODIFIED. The

appellant is hereby found guilty of homicide for the death of Feliber Andres
and is sentenced to an indeterminate sentence of 8 years and 1 day of
prision mayor in its medium period, as minimum, to 14 years 8 months and
1 day of reclusion temporal in its medium period, as maximum. For each
count of the slight physical injuries committed against Kenneth Andres and
Kevin Valdez, the appellant is hereby sentenced to 20 days of arresto
menor.

The pecuniary awards granted by the trial court are hereby sustained.
G.R. No. 81404             January 28, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.
ISRAEL CARMINA alias "Boy" and VALERO CARMINA, accused-
appellant.
CRUZ, J.:
The grisly details of the killing cannot be told without revulsion, but they
must be told. It is unbelievable that it happened in this day and age and not
in a distant and savage time when brutality was a way of life and death
when it came aroused no special reverence. This case belongs to that
barbaric past.
The victim was Jose Billy Agotano, who was only twenty years old when he
was killed in cold blood. According to the prosecution, the killers were
Valero Carmina, the herein accused-appellant, and his son Israel Carmina,
also known as Boy.
The two were charged before the Regional Trial Court of Mati, Davao
Oriental, in an information reading as follows:
That on or about November 15, 1986, in the Municipality of Tarragona,
Province of Davao Oriental, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping one another, with treachery and
evident premeditation, armed with garand rifles and sharp-pointed bolo
(pinuti), and with intent to kill, did then and there wilfully, unlawfully and
feloniously attack, assault and shoot with said garand rifle one JOSE
BILLY AGOTANO, thereby inflicting upon the latter wound which
caused his death, and not contended with that, with the use of the said
bolo, accused slaughtered the dead body of said Jose Billy Agotano.
The commission of the crime was attended by the aggravating
circumstances of abuse of superior strength and adding ignominy to
the natural effects of the crime.
Only Valero Carmina could be arraigned and tried because Israel
disappeared and remains at large to date. After trial, the accused-appellant
was found guilty and sentenced to life imprisonment.** He was also
required to pay civil indemnity in the amount of P30,000.00 to the victim's
heirs plus the costs of the suit.
1
The case for the prosecution was established mainly through the testimony
of two eyewitnesses, namely, Victoriano Agotano, the victim's brother, and
Ramon Katiad, in whose yard the crime was committed.
Victoriano testified that he and Billy were on their way home from their farm
when they were intercepted at gunpoint by Valero, his wife Ernita, their son
Israel, and Aileen Masanguid at about 2:30 o'clock in the afternoon of
November 15, 1986. Valero had a carbine, Israel a Garand rifle and a
hunting knife, and Ernita a bolo at her waist. The group accused Billy of
being a "pulahan" because of the red t-shirt he had wrapped around his
head to cover it from the rain. The two of them were taken to the nearby
house of Dionisio Megriño, where Billy was struck in the forehead by
Valero and in the chest by Israel with the handle of their respective
firearms.
The group stayed there for about thirty minutes, and then Victoriano and
Billy were ordered to march to their brother Alfredo's house, with their
captors trailing them closely. He, Billy and Alfredo, together with two other
persons named Pilo and Roger, who happened to be in the house at the
time, were ordered to fall in line and sing "Bayang Magiliw." When they
reached the line "Ang mamatay nang dahil sa iyo," Valero and Israel told
them, "You shall die." Twenty minutes later, they were all taken to a cousin
of the Agotanos from whom the Carminas demanded tuba, rice and
chickens. Alfredo, Roger and Pilo were forced to drink the tuba with Valero
and Israel. The drinking lasted for two hours. Then the Carminas decided
to leave, taking with them Victoriano and Billy, who were ordered to carry a
kettle, the rice and the chickens.
The group walked to the house of Ramon Katiad about one and a half
kilometers away and arrived there at 6:30 p.m. Katiad was not there at the
time but came home at about seven o'clock. The Agotanos cooked the rice
and roasted the chickens which they and the Carminas ate. Katiad and his
family had their own supper later.
At about ten o'clock, Israel told Billy, "You can no longer be home, Do."
When asked why, he replied: "Because you are wearing a red cloth around
your head." Katiad pleaded that Israel not do anything in his house but
Israel said, "I am going to kill him." In desperation and fear, Victoriano told
Billy to kneel before Israel and beg for his life, which Billy did. But to no
avail. Israel took Billy with him downstairs while Valero detained Victoriano
in the house, pointing his rifle at him.
In the yard, Israel pushed Billy from behind and then shot him, hitting him
in the nape. Billy died as he fell to the ground. Israel then stripped and
exposed the dead body. He went back to the house to get his mother's
bolo and ordered Victoriano to go down and look at his brother's corpse.
The Katiad family (including the children) was also told to go to the yard.
When everyone had gathered around the dead body, they watched in
horror at the gruesome acts that followed.
Israel chopped off Billy's arms and legs. Then he beheaded the corpse
and, raising the severed head, shouted "Taganlang," meaning God. He cut
open the stomach and pulled out the intestines. He hung these around
Victoriano's neck, saying, "You use this as your necklace, the intestines of
your younger brother." Going back to the dismembered corpse, he pulled
out the liver and the lungs. Triumphantly raising them, he shouted. "We will
use this as pulutan!"
Having done all this, Israel then turned his attention to Victoriano and said,
"I will kill you next!" He lunged at Victoriano but lost his balance and the
latter was able to parry the blow. Victoriano ran for his life! It was, as he put
it later, "a suicide run." Israel pursued and took a shot at him but missed.
Victoriano made good his escape. Arriving at about two o'clock in his
mother's house, he reported what had happened and warned the family
that the Carminas were after them. Under cover of darkness even as
deathly fear stalked them, they took refuge in a neighbor's house. Later in
the morning, they reported the killing to the authorities.
Victoriano's narration of the killing and slaughter was corroborated by
Katiad, the other eyewitness. He added the distasteful detail that after
shooting Billy to death, Israel broke into happy song: "Siga-siga sa
baryohan, hindi natatakot sa barilan!" He said that the Carminas took him
with them after Victoriano's escape but finally released him after about
fifteen minutes. Later, he and several policemen gathered the parts of the
dismembered corpse that were scattered in his yard and put them in a
sack.
Valero's defense was alibi. He declared under oath that at the time of the
murder, he was hiding in the mountains of Manay from the family of Elnoro
Badadao, whom he "was forced to kill" over a land dispute. He denied
knowing the Agotanos and Megriño but admitted that Katiad was his friend
and former neighbor. He said the testimonies of the prosecution witnesses
were all lies because the last time he was in Ompao was in 1983.
Charito Garsona, the only other witness for the defense, testified that on
November 15, 1986, the accused-appellant and three other persons
passed by her house in Manay, Davao Oriental, at about 4 o'clock in the
afternoon and asked for food.
In his brief, the accused-appellant contends that he should not be blamed
for the killing of Billy Agotano, granting arguendo that it was Israel who
killed the victim and dismembered his corpse. Israel, if at all, should be
held accountable alone for his act. The fact that the accused-appellant did
not try to escape but yielded when he was arrested should indicate his
innocence, which should be presumed in the absence of proof of his guilt
beyond reasonable doubt.
There is indeed such proof. His alibi must fall not only because of its
inherent weakness but also because of his positive identification by the two
eyewitnesses, one of whom was his near-victim and the other
his compadre.
While it is true that it was not he who actually shot and later dismembered
Jose Agotano, the evidence has clearly established a conspiracy between
him and his son that makes him equally guilty with the latter. The two of
them acted in concert in the conception and execution of the killing. The
decision to kill Billy was reached by the two of them although it was Israel
who personally implemented it. while Israel did his part in the killing yard,
Valero detained Victoriano in the house at gunpoint and watched the
shooting and dismemberment of Billy. As a father, Valero made no move to
restrain his son; on the contrary, he watched with approval as Israel carried
out their joint decision.
The crime was qualified with treachery because, although the victim was
forewarned of his impending death, he was shot in the back while he was
entirely defenseless and the killers were under no risk whatsoever from
any retaliation the victim might make. In People v. Barba,  the accused
2
pointed a rifle at the victim from a distance of six meters and said,
"Pardong, stand up, we are going to shoot you!" With hands raised, the
victim pleaded, "Do not kill me, investigate first what was my fault!" This
Court held there was treachery when the accused shot and killed the
victim.
Even if treachery were not present in this case, the crime would still be
murder because of the dismemberment of the dead body. One of the
qualifying circumstances of murder under Article 248, par. 6, of the
Revised Penal Code is "outraging or scoffing at (the) person or corpse" of
the victim. There is no question that the corpse of Billy Agotano was
outraged when it was dismembered with the cutting off of the head and
limbs and the opening up of the body to remove the intestines, lungs and
liver. The killer scoffed at the dead when the intestines were removed and
hung around Victoriano's neck "as a necklace" and the lungs and liver
were facetiously described as "pulutan."
On the other hand, the fact that Valero yielded when he was apprehended
did not operate to mitigate the penalty because mere non-resistance to
arrest is not considered voluntary surrender.
What possessed the killers in the commission of their nauseating acts can
only be left to incredulous conjecture.  What is certain is that whether it
1âwphi1

Although the information did not categorically allege this qualifying was caused by fanatic ideology, or plain intoxication, or an innate bestiality,
circumstances in the exact words of the law, it was nevertheless deducible the bizarre desecration of the corpse was utterly disgusting and deserves
from the statement that the "accused slaughtered the dead body of said the strongest if helpless condemnation. The penalty prescribed by law,
Jose Billy Agotano." which is only reclusion perpetua, does not seem severe enough.

Thus, in People v. Obenque,  the information charged "that after thus

3
WHEREFORE, the appeal is DISMISSED. The sentence imposed, except
shooting Sergio Cabradilla, the accused Elpidio Obenque in the only as to the civil indemnity, which is increased to P50,000.00, is
furtherance of his criminal design, loaded the body of his victim in the AFFIRMED. It is so ordered.
Volkswagen Brasilia Sedan with Plate No. BEE 164, Series of 1977 and
with utmost cruelty, dump the corpse in a ravine . . . ." It was held that this
act of the accused constituted an outrage of or scoffing at the corpse of the
victim.

We agree with the trial court that evident premeditation should be

disregarded because sufficient time had not elapsed between the
determination to commit the crime and its execution, to enable the accused
to reflect upon the consequences of their act. It is not certain that when
early in that afternoon, Valero told the captives in Megriño's house that
they would die, the Carminas had already definitely resolved to commit the
murder. In fact, although the threat was made to all of the captives, only
Billy was killed in the end. Moreover, there was no showing that they had
coolly and dispassionately planned the execution of the offense. The
events leading to the murder suggest that the Carminas were from the start
busy with oppressing the Agotanos or drinking tuba, leaving no time for
that detached and undisturbed premeditation of the murder. It was only
when they were in Katiad's house that the decision to kill Billy was made,
the justification being that "we have already maltreated him, this time we
will just finish him because he might retaliate."

Abuse of superior strength was also correctly not considered, being

absorbed in alevosia.

But it was incorrect to appreciate adding ignominy to the offense because

the victim was already dead when his body was dismembered. This
aggravating circumstance requires that the offense be committed in a
manner that tends to make its effects more humiliating to the victim, that is,
add to his moral suffering.4
G.R. No. L-50276 January 27, 1983
PEOPLE OF THE PHILIPPINES, plaintiff-appellee vs.
MICHAEL J. BUTLER, accused-appellant.
GUERRERO, J.:
This is an automatic review of the Judgment of the Court of First Instance
of Zambales, Third Judicial District, Branch I, finding the accused Michael
J. Butler in Criminal Case No. 2465 guilty beyond reasonable doubt of the
crime of murder qualified by abuse of superior strength, with the
attendance of aggravating circumstances of treachery and scoffing at the
corpse of the deceased, without any mitigating circumstance and
sentencing the accused with the penalty of death, and ordering him to
indemnify the heirs of the victim with the sum of P24,000.00.
In an Information dated October 16, 1975, accused-appellant Michael J.
Butler was charged with the crime of murder committed as follows:
That on or about the 8th day of August, 1975, in the City of Olongapo,
Philippines. and within the jurisdiction of this Honorable Court the
above-named accused, with intent to kill and taking advantage o his
superior strength, did then and there wilfully, unlawfully and feloniosly
assault, attack and hit with a statue of Jesus Christ oue Enriquita Alipo
alias 'Gina Barrios' and after said Enriquita Alipo fell flat on her fare the
above-named, accused again taking advantage of superior strength
then and there apply force and pressure on the back of the head of
said Enriquita Alipo thereby forcing and sinking the latter's mouth and
nose against the mattress of the bed, and as a result thereof, the said
Enriquita Alipo was not able to breathe and was choked, thus directly
causing the death of said Enriquita Alipo alias 'Gina Barrios'.
Upon arraignment, accused-appellant pleaded not guilty, hence the trial
was conducted and at the termination of which, judgment of conviction was
rendered.
It appears from the records of the case that on August 7, 1975, at about
10:30 p.m., accused-appellant Michael Butler and the victim, Enriquita
Alipo alias Gina Barrios were together at Colonial Restaurant in Olongapo
City. They were seen together by Lilia Paz, and entertainer and friend of
the victim, who claimed to have had a small conversation with the accused,
and by one Rosemarie Juarez, also a friend of the victim. At about 1:00 of
the same evening, the accused and the victim left the said
restaurant,   after the latter invited Rosemarie Juarez to come to her house
1
that night.
Emelita Pasco, the housemaid of the victim, testified that, at about 11:30
p.m. or so of August 7, 1975, her mistress (Gina Barrios) came home with
the accused-appellant. As soon as she opened the door for them, the
victim and accused-appellant immediately entered the victim's bedroom.
Shortly thereafter, the victim left her bedroom holding an Id card and a
piece of paper, and on the piece of paper, the victim purportedly wrote the
following words: MICHAEL J. BUTLER, 44252-8519 USS HANCOCK. Said
words were copied from the ID Card.
Pasco testified that the victim said she was copying the name of the
accused because she knew he would not be going back to her. Then she
rushed back to her bedroom after instructing Pasco to wake her up the
following morning.   Before retiring, however, the victim's friend, Rosemarie
2
Juarez, came to the former's house and after having a small conversation,
also left.
The following day, August 8, 1975, at about 4:00 a.m., Pasco rose to wake
her mistress as instructed. She knocked at the door. She found that the
victim was lying on her bed, facing downward, naked up to the waist, with
legs spread apart, with a broken figurine beside her head. Immediately,
Pasco called the landlord and they called the authorities.  3
Patrolman Rudyard de los Reyes of the Olongapo Police Department
arrived together with Fiscal Llamado and Corporal Sobrepeña at about
6.00 a.m. of August 8, 1975. Pasco informed Patrolman de los Reyes that
the accused Butler slept with the victim the previous night, and the former
gave the latter the piece of paper where the name of the accused was
written.
Sergeant Galindo of the Olongapo Police Department handed over to
Jesus Bensales, a fingerprint technician of the Police Department, a piece
of cellophane together with the broken figurine for latent print examination.
The latent print examination report (Exh. E4) showed that there were three
(3) fragmentary latent prints that were lifted from the cellophane wrapping
of the figurine. But only one print was clear and distinguishable. This
particular print was found Identical with the accused's left middle fingerprint
on thirteen (13) points. Bensales later testified that the latent print
developed from the piece of cellophane belonged to the accused Butler.  4
On the same day, officers of the Olongapo Police Department informed the
Naval Investigation Services Resident Agency (NISRA) in Subic Bay that
an American Negro by the name of Michael J. Butler on board the USS
Hancock- was a suspect in a murder case. Jerry Witt and Timothy Watrous
both special agents of NISRA went on board USS Hancock. They informed
the legal officer that one of the crew members was a suspect in a murder
case. After being located, the accused was brought to the legal office of
the ship. Witt Identified himself, showed his credentials and informed the
accused that he was a suspect in a murder case. Then Witt informed the
accused of his constitutional rights to remain silent and right to counsel.
Then the accused was searched, handcuffed, and was brought to NISRA
office.
Arriving at NISRA office at about 11:00 a.m. of the. same day, the
investigation and interrogation were started . by James Cox NISRA
investigator, at about 2:55 p.m. According to Cox's testimony, before he
started the interrogation, he identified himself, informed the accused of his
constitutional rights. At the cross-examination, he stated it took him about
1-1/2 hours to finish the investigation. The first 45 minutes was accordingly
devoted to interrogation, and for the next 45 minutes, he called James
Beaver who reduced the oral investigation into writing.
James Cox also testified that after apprising the accused of his
constitutional rights to remain silent and right to counsel he asked the
accused if he needed a lawyer and if he understood his rights
(constitutional rights and rights under the military code of justice). The
accused accordingly said he understood his rights and that he did not need
a lawyer.
The result of that investigation was thus a document taken from the
accused consisting of three (3) pages, signed and initialed on all pages by
him and containing a statement that he was aware of his constitutional
rights, and a narration of the facts that happened on August 7, 1975.
For purposes of clarity the entire text of the waiver of constitutional rights
and the extra-judicial confession containing the narration of facts by the
accused appellant (Exhibit H) are reproduced as follows:
Place- NISRA Subic Bay
I, SA MICHAEL JEROME BUTLER USN 142528519 have been
advised by Special Agent(s) JN COX and JJ CREATURO that I am
suspected of MURDER OF GINA BARRIOS ALSO KNOWN AS
ENRIQUETA ALIPO FILIPINA NATIONAL AND THE USE
DANGEROUS DRUGS. I have also been advised:
MJB (1) That I have the right to remain silent and make no statement
at all;
MJB (2) That any statement I do make may be used as against me in a
trial by Court-Martial;
MJB (3) That I have the right to consult with a lawyer prior to any
questioning. This lawyer may be a civilian lawyer retained by me at my
own expense; or, if I wish, Navy/Marine Corps authority will appoint a
Military lawyer to act as my counsel without cost to me;
MJB (4) That I have the right to have such retained civilian lawyer or
appointed military lawyer present during this interview;
MJB (5) That I have the right to terminate this interview at any time for
any reason.
MJB I understand my rights as related to me and as set forth above.
With that understanding, I have decided that I do not desire to remain
silent, that I do not desire to consult with either a civilian or military
lawyer at this time and I do not desire to have such a lawyer present
during this interview. I make this decision freely and voluntarily and it is
made with no threats having been made or promises extended to me.
gd)r
At this time, I, SA Michael Jerome Butler, 14258519, desire to make
the following voluntary statement. This statement is made with an
understanding of my rights as previously related to me and as set forth
above, and it is made with no threats having been made or promises
extended to me. This statement is being typed by YNI James R.
BEAVER, USN as I discussed its contents with Mr. COX and Mr.
CREATURO I was born 09-04-57 at Orlando, Florida. I am a black,
male American 6 foot tall and I weigh 155 pounds. I enlisted in the US
Navy on 3 February 1975 for four years. Since 10 June 1975, I have
been assigned to the USS HANCOCK (CV-10).
During the evening hours of 7 August 1975, while on liberty, I went to
Bob's Tailor Shop in Olongapo City, R.P. While I was there I talked to a
girl and drank some gin and beer and got drunk. The girl's mm was
Victoria PENA There was another girl in the tailor shop and she was
making eyes at me. I walked outside the tailor shop and she followed
me and we spoke to each other. This was sometime after 9 PM She
asked me if I wanted to go home with her and I said yes.
We caught a tricycle and went to her house. She paid the man one
peso. When we got to the house another girl let us in. After we got to
the house the girl that I was with showed me her health card, but I
couldn't read the name on it. I went upstairs and the girl that I was with
showed me the bedroom which was just to the left at the top of the
stairs I went in and sat down on the bed. She came in and asked me
for some money. She told me she was going to screw me. (By this I
understood we were going to engage in sexual intercourse). I gave her
approximately 27 pesos. She left the room and said that she was going
to get some cigarettes and would be right back. She came back later
and came into the room, walked out of the room and said something to
the girl in the next room. The two of them came into the bedroom
where I was and they were laughing about something. The other girl
then left and the two of us were in the bedroom alone. Both of us got
undressed and I laid down on the bed and went to sleep. I woke up
sometime later and she was in bed with me. At this point I rolled the girl
over and made love to her. (By this I mean I engaged in sexual
intercourse with her from the rear ). My intention was to screw her in
the vagina. If I screwed her in the rectum, I didn't intend to. After we
finished, I rolled over and went back to sleep again, Roosters started
crowing and I woke up and it was starting to get daylight. The girl was
already awake. I thought that it was time for me to go back to the ship
so I told her that I had to leave. I couldn't find my watch and asked her
where it was and she said that the girl in the next room had it. I was
sitting on the bed and I reached down to pull up my sock and I
discovered that a five peso note that I had in my sock was missing. I
asked her about it and she said that she had gotten it. We started
arguing about my five pesos and she started saying something to me
in the Filipino language and I told her to speak English. I walked over
and looked at her hard and she wanted to know what I was looking at
and I asked her why she took my money. I said 'Ah, fuck it,' and
pushed her down onto the bed. She got off the bed and smacked me
and I smacked her back. She started tussling and acting like she was
going to hit me with a karate chop. I thought she was going to do
something dangerous to me so I grabbed her, and we started wrestling
on the bed. She grabbed me by the throat and I picked up a statue of
Jesus Christ that was sitting on a bedside stand and I hit her in the
head. She fell flat on her face. I didn't intend to kill the girl but I was
mad and wanted to hurt her. She didn't say anything to me but she was
making some kind of groaning noise. I went in the next room and get
my watch, came back in the bedroom, got dressed and left. I started
walking towards the base. I saw the lights of a vehicle coming so I
stepped inside of a building so I wouldn't be caught out after the
curfew. As it turned out it was a Marine in a military truck, I'm not sure if
he was with tile Armed Forces Police or the Shore Patrol. The Marine
was white and bald headed and wore a badge. He gave me a ride to
the Armed Forces ]Police Station at the Main Gate, Subic Bay, I then
went from there to my ship. I was dressed in civilian clothing and I had
on a pair of burgandy trousers and a blue and white printed shirt. I left
these items of clothing on the top of my bunk located in the 2nd
Division berthing area.
When I was with the girl last night, I was drunk from drinking alcohol. I
did not take any narcotics or dangerous drugs because I do not use
them. I never did know the girl's name that I was with. She was a
Filipino, approximately 4'11", black hair (long). She wore glasses
(tinted). When she and I engaged in sexual intercourse I reached a
climax while my penis was in her. Wen I met her she was wearing a
two-piece fish net top and skirt, they were both purple. This is all I can
remember about what she looked like. I don't know the exact location
at which she lived except that it was somewhere in Olongapo City, R.P.
To my knowledge, the girl did not take any drugs while I was with her.
I have read the above statement, consisting of three pages and it is
true and correct to the best of my knowledge. No threats or promises
have been made to induce me to make this statement.
James Beaver later testified that he typed the statement of the accused,
that the accused gave his statement in answer to the questions of James
Cox and that the accused signed all the pages of the statement, that he
was apprised of his constitutional rights to remain silent and to counsel by
James Cox that the accused was aware of his constitutional rights and that
he affixed his signature and initials on the document which contained the
warning regarding his rights. 5
In the meantime, Dr. Angeles Roxas, Medico Legal Officer of the
Olongapo Police Department who also came to the scene of the crime
on August 8,1975, examined the corpse of the victim and later issued
an autopsy report (Exhibit D) with the following findings:
The body is that of a middle-aged woman Identified as Enriquita Alepo
y Apolinario about 26 years old, native of Bugasong, Antique and
resident of 8 Fontaine Extension. Olongapo City, found sprawling on
her face with her legs widely spread far apart, with no underwear and
her house dress folded from below upwards up to her waistline, thus
exposing her private parts. There was starting rigidity of the
extremeties and starting lividity of the face, neck and abdomen which
are the dependent portions of the body. On top of the head are broken
pieces of porce wares.
Close examination of the body showed fine, short, curly hairs
numbering five in all, found in the area of the anal region, with amount
of blood in the between the anal folds. There were also fine pieces of
porcelain wares on her teeth and gums, upper and lower, just behind
the upper and lower lips. Further examination failed to show any sign
of external physical injuries, except for a slight abrasion, measuring 3
mm. in diameter, posterior portion, junction of the anal mucous
membrane and the skin.
The body was opened in the usual Y-shaped incision of the chest and
abdomen to expose the different, vital internal organs. The head was
likewise opened by means of a saggital incision of the scalp, then
deflecting the anterior and posterior portions, and then making a
coronal incision of the skull to expose the brain substance. The
following are the significant findings:
I. HEAD and NECK Fatted to find any fracture of the skull. Brain
apparently normal No sign of intra-cranial hemorrhage
II. CHEST:
1. Heart: apparently nor except that the right side of the heart is fully
filled with blood.
2. Lungs. Markedly congested but no sign of edema. No obstruction of
the trachea
III. ABDOMEN: all the internal abdominal organs are apparently
normal.
NO OTHER SIGNIFICANT FINDING.
Specimens from the anal and vaginal smears were submitted to the
OCGHI laboratory for examinations.
CAUSE OF DEATH: Asphyxia due to suffocation.
Dr. Roxas later testified that anal intercourse was had with the victim after
her death as indicated by the partly opened anus and the presence of
spermatozoa in it. He testified that the anus would have automatically and
completely closed had the intercourse occurred, while the victim was still
alive. He also categorically testified that the victim died of asphyxia due to
suffocation when extreme pressure was exerted on her head pushing it
downward, thereby pressing her nose and mouth against the mattress. 6
After trial, judgment was promulgated on December 3, 1976 finding the
accused guilty beyond reasonable doubt of the offense charged. The
dispositive portion of the decision reads as follows:
WHEREFORE, judgment is hereby rendered:
(a) Finding the accused Michael J. Butler guilty beyond reasonable
doubt of the crime of murder by abuse of superior strength and there
being proven the aggravating circumstance of treachery and outraging
or scoffing at the corpse of the deceased, not offset by any mitigating
circumstance, the Court hereby sentences him to DEATH;
(b) . Ordering the accused to indemnify the heirs of the deceased
Enriquita Alipo alias "Gina Barrios" the sum of TWENTY FOUR
THOUSAND (P24,000.00) PESOS; and
(c) Ordering the accused to pay the litigation expenses and the costs of
the proceedings.
Let a copy of this decision be furnished His Excellency President
Ferdinand E. Marcos and the Honorable Secretary of Justice, Vicente
Abad Santos, for their information petition and guidance. SO
ORDERED.
On December 17, 1976, a motion for new trial was filed by the accused-
appellant. Said motion assailed the decision of the court a quo on the
ground that a serious error of law was committed prejudicing his
substantial rights. The accused-appellant alleged in said motion that he
was a minor at the time the offense was allegedly committed, and having
invoked his minority, he was entitled to the suspension of the sentence
pursuant to P.D. 603, Art. 192 before its amendment by P.D. 1179 on
August 15, 1977.
The motion for new trial was denied on January 25, 1977. A motion for
reconsideration was subsequently filed which was also denied.
A petition for mandamus was thereafter filed with this Honorable Court
praying, among other things, that an order be issued commanding
respondent judge to set aside the judgment dated December 3, 1976, to
declare the proceedings suspended and to commit the accused-appellant
to the custody of the Department of Social Welfare (now Ministry of Social
Services and Development) or any other training institution licensed by the
government or any other responsible person, in accordance with P.D. 603,
Art. 192 before its amendment by P.D. 1179 on August 15,1977.
On December 13, 1978, a minute resolution was issued by this Honorable
Court dismissing the petition for mandamus for lack of merit.
On May 26,1981, accused-appellant filed in the present appeal, a
manifestation and motion dated May 19, 1981, praying that the certified
certificate of live birth of the accused-appellant be admitted to form part of
the evidence. On June 4, 1981, this Honorable Court resolved to admit the
same to form part of the evidence.
The accused-appellant made six (6) assignments of errors in his brief, and
seven (7) supplemental assignments of errors in his supplemental brief. In
essence. however, the issues can be reduced into the following-
I. Whether or not the trial court erred in giving full credence to the
testimony of the prosecution witnesses;
II. Whether or not the trial court erred in admitting in evidence the
alleged extrajudicial admission of the accused (Exh. H) and
appreciating it against him;
III. Whether or not the trial court erred in finding the accused guilty of
the crime of murder qualified by abuse of superior strength, with
aggravating circumstances of treachery and scoffing at the corpse of
the victim;
IV. Whether or not the trial court erred in appreciating treachery and
abuse of superior strength simultaneously and separately;
V. Whether or not the trial court erred in accepting the testimony of Dr.
Angeles Roxas, the Medico-legal Officer, that asphyxiation by
suffocation was the cause of death of the victim.
VI. Whether or not the trial court erred in denying the accused the
benefits of Section 192 of P.D. 603 before its amendment by P.D. 1179
on August 15, 1977.
The first issue is whether or not the trial court erred in giving full credence
to the testimony of the prosecution witnesses.
Under the said issue, the accused-appellant contends that the court a
quo erred in giving full credence to the testimony of the prosecution
witnesses.
The rule is well-established that the findings and conclusions of the trial
court on the credibility of the witnesses are matters that are left mainly to
its discretion because it is the trial court which observed the demeanor and
the manner of testimony of the witness and, therefore, the trial court is in a
better position to assess the same than the appellate court. As a matter of
established jurisprudence, the findings of the trial court on the credibility of
a witness are not disturbed on appeal unless there is a showing that it
failed to consider certain facts and circumstances which would change the
same.  7
This Court rules that the court a quo did not err in giving credence to the
testimony of the prosecution witnesses. There were three (3) persons who
Identified the accused as the person last seen with the victim on the night
in question, namely Emelita Pasco, the maid, Lilia de la Paz, the
entertainer-friend of the victim, and Rosemarie Juarez, another friend of
the victim.
The finger print examination showed that one of the three fragmentary
latent prints lifted from the cellophane wrapping of the figurine used in
striking the victim was Identical with the accused's left middle finger print
on thirteen (13) points.
As to the contention that the findings of the medico-legal officer were
inadequate and inconclusive, We rule that the accused-appellant failed to
present clear and positive evidence to overcome the scientific and specific
finding and conclusion of said officer. The details of such findings and
conclusion will be discussed herein later.
The second issue is whether or not the trial court erred in admitting in
evidence the alleged extra-judicial admission of the accused (Exh. H) and
appreciating it against him.
Counsel for the accused-appellant questions the regularity of how the
arrest of the accused was made and the regularity of how wanting of the
accused-appellant's constitutional rights were given. Counsel contents that
Sec. 20, Art. IV (Bill of Rights) of the New Constitution which embodies the
constitutional rights of the person under custodial investigation against self-
incrimination, and the doctrine laid down in the classic case of Miranda vs.
Arizona   have been violated..
8
Thus, accused-appellant maintains in his brief:
In the Miranda case, the accused was arrested by the and taken to a
special interrogation room where he signed a confession which
contained a typed paragraph stating that the confession was made
voluntarily with full knowledge of his legal rights and with the
understanding that any statement he made might be used against him.
It will be noted that the prosecution's EXHIBIT "H" and all the
submarkings thereunder was obtained from the accused-appellant
under precisely similar conditions as in the Miranda case. He was
taken from his ship by Naval Intelligence Service special agents and
roughly handed from the very start. Before he could even get his
bearings, he was immediately handcuffed and told that he was a
primary suspect in a very serious offense-murder. And then, before
giving him any of the warnings called for under the above-quoted
guidelines provided by the M case, was questioned about the alleged
offense which he was being suspected even while awaiting
transportation to the Office of Naval Intelligence. At the Office of Naval
Intelligence, the accused-appellant was placed in a special
interrogation room and left alone for a little while. When he was finally
joined again by NIS Investigators, he was merely given the standard
mimeographed warning and told to sign the same without even so
much as explaining to him the contents and significance of the
mimeographed form which he was being asked to sign. The accused-
appellant was never informed that whatever statements he may given
might be used against him in a trial before a Philippine Court and was
never really given the opportunity to consult with a lawyer, whether
military or civilian. The interrogation of the accused-appellant then
proceeded and lasted all day without giving him the opportunity to rest.
And then, in the preparation of said statement (EXHIBIT "H") a yeoman
of the NIS investigator did the typing and typed only those portions of
the interrogation session which the NIS investigator told him and which
turned out to be in criminating to the accused-appellant. The NIS
1äwphï1.ñët 
interrogation could be easily characterized as a police-dominated
incommunicado interrogation. This type of interrogation is precisely the
kind which was severely criticized by the Miranda doctrine.  9
Accused-appellant further argues:
The evidence clearly shows that the Naval Intelligence agent who
interrogated the accused-appellant special Agent Cox employed
precisely the police interrogation procedures described by the U.S.
Supreme Court in the Miranda case i.e. interrogation in privacy of their
special interrogation room questioning in unfamiliar surroundings,
employing deceptive stratagems and for inadequate warning of his
rights to counsel and to remain silent etc., thereby breaking down his
will power by failing to allow him some rest or respite. It is in this
obviously police-dominated surrounding that the accused finally
succumbed to the oppressive atmosphere of the dogged and persistent
questioning of the Naval Intelligence interrogator and finally gave the
questioned statement (EXHIBIT "H") just to get it over with. 10
We reject accused-appellant's contention and argument. Contrary to what
the counsel for the accused-appellant contends, there is no evidence
showing that the accused was roughly handed from the very start. Neither
is there any evidence to prove that he was first handcuffed and informed
that he was a suspect in a murder case before he was warned of his rights.
The manner of arrest as testified to by witness Jerry Witt which was not
controverted, was as follows: 11
Q Will you tell how you make arrest of a serviceman on board a ship?
A We went to the USS HANCOCK to contact the legal officer and told
him that one of his crew members is a suspect in a murder case and
we went to talk to him.
Q And what did legal officer do?
A They tried to locate him.
Q Were you with the group who located Michael Butler?
A Yes.
Q Who were with you?
A Watrous, the legal officer ship master whose name I do not know.
 Q After you found Michael Butler, where was he brought? xxx xxx xxx
Q When Michael Butler was brought to the legal office, what
happened?
A I identified myself, showed my credentials and said he was a suspect
in a murder case, that it is his right to remain silent and his right to a
lawyer. He was informed of the crime and asked him to put up his arm
against the wall we made body search to look for possible weapon. He
had some kind of tools, handcuffed him and took him to our office.
Q Did he refuse?
A He was very submissive.
Q Why did you make him face the wall and search him?
A Normal procedure.
Q And did he ever resist?
A No.
Q How about being handcuffed?
A Not at all.
Q And this manner of searching and handcuffing, was it done in the
presence of the legal officer?
A Yes.
It is clear that there was no mandhandling on the part of the accused.
Neither could it be deduced from the events which transpired on board the
sip that there was any moral coercion exerted to break his will. It should
also be noted that as early as this time, the accused-appellant had already
been informed of his constitutional rights. On this point, NISRA investigator
James Cox on direct examination said:
Q Prior to your interrogation being an investigator, what are the
requisites in your talking to the suspect?
A By Identifying myself to him, advising him of his rights, of his
constitutional rights.
Q And this advise of his rights are reduced to writing?
A Yes.
Q And is this done to Michael Butler?
A Yes.
Q And you said that prior to your interrogating Michael Butler you have
warned him of his constitutional rights and his rights under the Uniform
Code of Military Justice, and the same reduced to writing ... I will
withdraw.
Q You said that the interrogation on Mr. Butler has been reduced to
writing, I have here a three-page statement of Michael Butler, will you
tell what is the relation of this to the statement you have taken on
Michael Butler?
A This is the statement I took from Michael Butler, on AUGUST 8,
1975. xxx xxx xxx
Q You said that you warned the accused of his rights under the military
code of justice, is this embodied in the statement?
A Yes.
Q Will you please point to the statement, where is it? (Witness pointing
to the first half upper portion of page one of Exh. "A" motion) xxx xxx
xxx
Q And do you know if the accused understood his rights as warned by
you?
A He said he did.
Q Do you have evidence that he understood the warning you gave in
connection with his rights?
A I asked him if he understood, he said yes. I asked him if he needed a
 lawyer, he said no, and put his initial in my presence. 12
On cross-examination, witness Jerry Witt declared:
Q You did not stay long in the office of the legal officer after he was
brought in?
A No.
Q In short, the only thing that happened in the legal office is that he
was searched, had his body to the wall and handcuffed him?
A He was warned.
Q A But at that time there was no interrogation?
A Right.
Q And he did not say anything
A I do not remember him saying anything.
Q Was the warning given before he was handcuffed?
A That was the very first thing.
Q Do I understand that you gave him the warning in the deck?
A Down in the legal office, I do not want to embarrass him I did it in
private.
Q In the presence of Watrous?
A Yes, and the legal officer.
Q How long after you said this warning before you handcuffed him?
A Two or three minutes.
Q And after you handcuffed him you did not reiterate your warning
anymore?
A No more, just to come with us.  13
Neither are We convinced of the accused-appellant's assertion petition to
the effect that the "police-dominated' incommunicado interrogation" at
NISRA office morally coerced him to sign the "mimeographed warning" and
to give the extra-judicial admission. While it may be true that a
considerable span of time elapsed from the moment the accused was
brought to the NISRA office to the time the interrogation was begun and
reduced to writing, there is no competent evidence presented to support
the allegation that the statement made by the accused was a result of
pressure and badgerings. In the absence of such competent evidence, that
argument remains to be a mere speculation which cannot be made to
prevail over what the prosecution witnesses have established and which
have not been successfully controverted.
We agree with the court a quo that the Miranda doctrine finds no
application in this case. As the court a quo observes:
The Miranda Doctrine does not apply in this case as the accused had
already waived his right to remain silent and to counsel after he was
duly informed of said rights by his investigators. The Court is not
persuaded by the claim of the accused as there is no reliable evidence
to support it except his naked testimony that he was threatened and
coerced, which allegation was contradicted and negatived by the fact
that he signed and initialed each and every page of Exhibit H, showing
no signs of tremor as a result of the maltreatment, threats or coercion.
The naked denial of the accused regarding the preparation of Exhibit H
cannot overwhelm the true and positive testimonies of the prosecution
witnesses James Robert Beaver and James Creatur, James Cox and
Jerry Witt as there appears no visible indication for his fellow
Americans to fabricate their declarations and testify falsely against the
accused. Besides, it is a well-settled rule that in weighing conflicting
testimonies, greater weight must be generally given to the positive
testimonies of the witnesses, for the prosecution than the denials of the
accused.
The third issue is whether or not the trial court erred in finding the accused
guilty of the crime of murder qualified by abuse of superior strength, with
aggravating circumstances of treachery and scoffing at the corpse of the
victim.
The prosecution maintains that there is abuse of superior strength as can
be deduced from the fact that the victim was slender, only 4'11" in height
while the accused is about 6 feet tall and 155 lbs that the accused took
advantage of this unequal physical condition when he struck the victim with
the figurine which made the victim unconscious, after which he shoved and
pressed the victim's mouth and nose against the bed mattress.  14
On the other hand, it is the defense counsel's contention that the court a
quo erred in appreciating the qualifying circumstance of abuse of superior
strength because like treachery, nocturnity and evident premeditation, this
circumstance has to be deliberately and purposely utilized to assure the
accomplishment of the criminal purpose without risk to the offender which
might arise from the defense that the victim might offer. The defense
counsel further maintains that there is no evidence to support that
advantage was taken by the accused of his superior strength as contrary to
what the court a quo said in its decision, there was no evidence nor
testimony on the part of the medico-legal officer to the effect that when the
victim was hit by a figurine, she went into a coma then her head was
pushed by a pillow, causing her nose and mouth to be pressured against
the bed mattress. In addition to this, the defense counsel further maintains
that the instrument used by the accused, which was a brittle porcelain
statue of Jesus Christ, could not produce physical injury nor render the
victim unconscious as testified to at cross-examination by the medico-legal
officer.
In People vs. Bustos,   this Court held that to be properly appreciated, it
15
must be shown that the accused is physically stronger than the victim or
the relative strength of the parties must be proved. In People vs.
Casillar,   this Court said that the essence of this circumstance is that
16
advantage is taken by the offender of this physical strength which is
relatively superior to that of the offended party. The fact that the offender is
strong does not of itself prove its existence. 17
Still, in People vs. Cabiling, a guideline to determine whether or not there
is abuse of superior strength has been laid down. In that case this Court
ruled:
To take advantage of superior strength means to purposely use
excessive force out of proportion to the means of defense available to
the person attached. This circumstance should always be considered
whenever there is notorious inequality of forces between aggressor,
assuming a situation of superiority of strength notoriously
advantageous for the aggressor selected or taken advantage of by him
in the commission of the crime. To properly appreciate it, not only is it
necessary to evaluate the physical conditions of the protagonists or
opposing forces and the arms or objects employed by both sides, but it
is also necessary to analyze the incidents and episodes constituting
the total development of the event.  18
In the light of the above legal precepts and considering the evidence
adduced, this Court holds that there was an abuse of superior strength
attending the commission of the crime. It is not only the notorious
advantage of height that the accused had over his hapless victim, he being
6 feet tall and weighing 155 lbs. while the girl was only 4 ft 11 inches tall,
but also fits strength which he wielded in striking her with the figurine on
the head and in shoving her head and pressing her mouth and nose
against the bed mattress, which pressure must have been very strong and
powerful to suffocate her to death and without risk to himself in any manner
or mode whatsoever that she may have taken to defend herself or retaliate
since she was already struck and helpless on the bed, that convinced us to
find and rule that the crime committed is murder with the qualifying
circumstance of abuse of superior strength.
The evidence on record, however, is not sufficient to show clearly and
prove distinctly that treachery attended the commission of the crime since
there was no eyewitness account of the killing. The extra-judicial
confession of the accused merely stated, thus: "I thought she was going to
do something dangerous to me so I grabbed her, and we started wrestling
on the bed. She grabbed me by the throat and I picked up a statue of
Jesus Christ that was sitting on the bedside stand and I hit her in the head.
She fell flat on her face." Although the figurine was found broken beside
her head, the medical report, however, do not show any injury or fracture
of the skull and no sign of intracranial hemorrhage.
While We reject the presence of treachery, We, however, find and sustain
the finding of the lower court that the aggravating circumstance of
outraging or scoffing at the corpse of the deceased applies against the
accused since it is established that he mocked or outraged at the person or
corpse of his victim by having an anal intercourse with her after she was
already dead. The fact that the muscles of the anus did not close and also
the presence of spermatozoa in the anal region as testified to by Dr.
Angeles Roxas, the medico-legal officer, and confirmed to be positive in
the Laboratory Report, Exhibit "B1 ", clearly established the coitus after
death. This act of the accused in having anal intercourse with the woman
after killing her is, undoubtedly, an outrage at her corpse.
It is true as maintained by the defense that the aggravating circumstance
of outraging at the corpse of the victim is not alleged in the information and
that the lower court found it had been proved but its contention that the
said aggravating circumstance should not have been appreciated against
the accused is without merit. And this is so because the rule is that a
generic aggravating circumstance not alleged in the information may be
proven during the trial over the objection of the defense and may be
appreciated in imposing the, penalty (People vs. Martinez Godinez, 106
Phil. 597). Aggravating circumstances not alleged in the information but
proven during the trial serve only to aid the court in fixing the limits of the
penalty but do not change the character of the offense. (People vs. Collado
60 Phil. 610, 614; People vs. Campo, 23 Phil. 368; People vs. Vega, 31
Phil. 450; People vs. Domondon, 64 Phil. 729).
On the claim of the defense that the accused is entitled to the benefits of
Section 192 of P.D. 603 before its amendment by P.D. 1179 on August 15,
1977, the records disclose that at the time of the commission of the crime
on August 8, 1975, said accused was seventeen (1 7) years, eleven (11)
months and four (4) days old, he having been born on September 4, 1957
in Orlando, Florida, U.S.A. The records further disclose that during the
consideration of the defense's motion to suppress the extra-judicial
confession (Exhibit "H") the accused declared that he was eighteen (18)
years old as evidenced by the certification issued by Vice Consul
Leovigildo Anolin of the Consul General of the Philippines in New York City
dated November 14, 1975 (Exhibit "1"-Motion). According to the trial court,
notwithstanding the presentation of Exhibit "1"-Motion, the accused did not
make any serious effort to invoke Article 192 of Presidential Decree 603
and further, since the accused was found guilty of a capital offense, the
suspension of sentence and the commitment of the accused to the custody
of any institution or person recommended by the Department of Social
Welfare cannot be carried out.
On December 17, 1976, an Urgent Motion for New Trial was filed by the
defense on the ground that a serious error of law was committed during the
trial prejudicial to the substantial right of the accused and newly discovered
evidence which would probably change the judgment of the court. The trial
court denied the motion for lack of merit as well as the subsequent Motion
for Reconsideration and Second Motion for Reconsideration. Thereupon,
the records of the case were ordered immediately forwarded to the
Supreme Court for automatic review pursuant to law.
At the time of the commission of the offense, trial and rendition of
judgment, the applicable law was P.D. 603 otherwise known as Child and
Youth Welfare Code. The relevant provisions of the said law to the instant
case are Articles 189 and 192 which provide the following:
Art. 189. Youthful Offender. Defined —A youthful offender is one who
is over nine years but under twenty-one years of age at the time of the
commission of the offense.
A child nine years of age or under at the time of the offense shall be
exempt from criminal liability and shall be committed to the care of Ws
or her father or mother, or nearest relative or family friend in the
discretion of the court and subject to its supervision. The same shall be
done for a child over nine years and under fifteen years of age at the
time of the commission of the offense, unless he acted with
discernment, in which case he shall be proceeded against in
accordance -,with Article 192.
The provisions of Article 80 of the Revised Penal Code shall be
deemed modified by the provisions of tills Chapter.
Art. 192. Suspension of Sentence and Commitment of Youthful
Offender.— If after hearing and the evidence in the proper
proceedings, the court should find that the youthful offender has
committed the acts charged against him the court shall determine the
imposable penalty, including any civil liability chargeable against him.
However, instead of pronouncing judgment of conviction, the
court, upon application of the youthful offender, if it finds that the best
interest of the public as well as that of the offender will be served
thereby, may suspend an further proceedings.
The trial court refused to consider and appreciate the minority of the
accused because the proof submitted by the defense was not duly
authenticated as required by the Rules of Court under Section 25 of Rule
132, said proof being merely a certification issued by Consul Leovigildo
Anolin of the Consulate General of the Philippines in New York City, U.S.A.
that the attached document is a xerox copy of the original birth certificate of
Michael Jerome Butler issued by the Department of Health and
Rehabilitation Service, State of Florida, U.S.A. shown by Mr. Butler's
mother, Mrs. Ethel Butler. (Exhibit "l ", "1-A")
After the lower court had ordered the records of the case forwarded to the
Supreme Court for automatic review on January 25, 1977, as stated earlier
accused-appellant filed on August 25, 1978 a petition for mandamus in
G.R. No. L-48786 entitled "Michael J. Butler, minor, assisted by Lt.
Commander Charles T. Riedel, U.S. Navy (guardian ad litem) vs. Hon.
Regino T. Veridiano, et al." praying that respondent judge be ordered and
commanded to set aside the judgment of conviction, to declare the
proceedings suspended and order the commitment of the accused
pursuant to Article 193, P.D. 603. The petition was denied by Us for lack of
merit in Our Resolution of December 13, 1978.
Subsequently, however, the required proof was submitted as annexes to
the defense' Manifestation and Motion to Admit (Certified Copy of
Certificate of Live Birth) filed May 26, 1981 in the instant proceedings (See
Records, pp. 137-141). In Our Resolution of June 4, 1981, We admitted
the certified copy of the Certificate of Live Birth of accused-appellant to
form part of the evidence.
We do not agree with the reasoning of the trial court that the accused had
not invoked the privilege granted under Article 192 of P.D. 603 before its
amendment because the records manifestly show the vigorous plea of the
accused for it's application not only in the Motion for New Trial but also in
the Motion for Reconsideration filed by the accused (See pp. 237 248, 261-
271, Records of Criminal Case No. 2465, People vs. Michael J. Butler, CFI
of Zambales, Branch 1, Olongapo City). We hold and rule that the lower
court erred in not applying the provisions of Article 192 of P.D. 603
suspending all further proceedings after the court had found that the
accused had committed the acts charged against him, determined the
imposable penalty including any civil liability chargeable against him. The
trial court should not have pronounced judgment convicting the accused,
imposing upon the penalty of death.
We likewise hold that the penalty of death was not justified. Since murder
was committed by the accused, under Article 248 of the Revised Penal
Code, the crime is punishable by reclusion temporal in its maximum period
to death. The accused is a minor and he is entitled to the privileged
mitigating circumstance of minority which reduces the penalty one degree
lower and that is prision mayor in its maximum period to reclusion temporal
in its medium period, or ten (10) years and one (1) day to seventeen (17)
years and four (4) months. (Article 68, Revised Penal Code) With one
aggravating circumstance, that of outraging at the corpse of the victim, the
penalty imposable is the maximum period which is reclusion
temporal medium or fourteen (14) years, eight (8) months and one (1) day
to seventeen (17) years and four (4) months. Imposing the Indeterminate
Sentence Law, the imposable penalty is eight (8) years and one (1) day of
prision mayor as minimum to fourteen (14) years, eight (8) months and one
(1) day of reclusion temporal as maximum.
We find in the records the Order of the Honorable Regino T. Veridiano II,
Presiding Judge of the Court of First Instance of Zambales, Branch I at
Olongapo City, committing the accused in the custody of the Commander,
U.S. Naval Base, Subic Bay, Philippines dated December 3, 1976,
"(p)ending the finality of judgment rendered in the above-entitled case,
pursuant to the provisions of Para. 5, Article 13 of the Revised Base
Military Agreement. " (p. 190, original records).
After the appeal had been submitted for decision pursuant to Our
Resolution of November 20, 1980, the accused-appellant, through counsel,
filed a Verified Motion to Dismiss Case Under P.D. 603 praying that an
order be issued "l) Dismissing the case against accused-appellant; (2)
Ordering the immediate discharge of accused-appellant; (3) Granting
accused-appellant such other relief as may be deemed just and equitable
in the premises, " alleging:
IV
8) During his entire period of continued imprisonment in the BRIG from
August 11, 1975 to the present, accused-appellant has behaved
properly and has shown his capability to be a useful member of the
community. Documentary proofs of these are as follows:
(a) Official Report of the BRIG Commander, USN Subic Naval Base,
attached hereto as Annex "A" and made an integral part hereof-,
(b) Progress Report filed with this Honorable Court on November 6,
1980, by the Ministry of Social Services and Development, Olongapo
City Branch, found on pp. 113-114, of the Rollo, and attached hereto
as Annex "B" and made an integral part hereof Thus:
Based on the informations we gathered thru interviews and
observations, we would like to recommend to the Hon. Supreme
Court, that Michael Butler be given a chance to enjoy his life fully
outside the jail, thus promoting his best interest and welfare.'
(c) Progress Report with annexes, dated February 18, 1981, filed on
March 4,1981, by the Ministry of Social Services and Development,
Olongapo City Branch, found on pp. 128-131 of the Rollo, a xerox copy
of which is hereto attached as Annex "C " and made an integral part
hereof Thus:
In view of the fact that Mr. Michael Butler is now fully rehabilitated, it is
our recommendation that he be given an opportunity to have happily
and prove himself outside the Brig.'
(d) Diploma awarded by the University of La Verne California,
U.S.A., to accused-appellant as evidence of his having completed a
 course in Behavioral Science, on January 24, 1981, while he was a
prisoner in the BRIG. A xerox copy of said Diploma and that of the
accompanying group photograph showing a picture of accused-
appellant taken on the occasion of the commencement exercises, are
hereto attached as Annexes "D" and "D-1 ", respectively, and made
integral parts hereof. The originals are found on p. 133 of the Rollo.
(The original of his transcript of record is also hereto attached as
Annex "E ").
v suspension of the sentence under the original provision of Article 192 of
(9) Under the foregoing facts and circumstances, and while it is now a
legal and physical impossibility to place accused-appellant under the
care and custody of the Ministry of Social Services and Development
which was what should have been done in the beginning under P.D.
603, it is submitted that accused-appellant's unfortunate situation could
still be remedied and salvaged . . . as justice now demands . . . and
that is, by treating accused-appellant's imprisonment in the BRIG as
equivalent to what should have been his full period of commitment
under the care and custody of the Ministry of Social Services and
Development. After all, and as said Ministry has reported, it has been
regularly visiting accused- appellant at his cell in the BRIG and, is
therefore, in a position to attest to the exceptional behavior of accused-
appellant.
Counsel for the People opposes the Motion to Dismiss on the following
grounds: 1 —That the dismiss for lack of merit by this Court of the petition
for mandamus earlier filed and docketed as G.R.L-48788 barred the
accused from raising or litigating anew the issue of his minority; 2-That an
offender is not entitled to the benefit of suspension of sentence if at the
time of trial he could no longer qualify as a minor offender for purposes of
the rule on suspension of sentence because of his age, citing the cases of
People vs. Capistrano, 92 Phil. 127 and People vs. Estefa, 86 Phil. 104;
and 3-That under Section 192, P.D. 603, as amended, accused-appellant
is not entitled to the benefit of suspension because he was convicted of an
offense punishable by death, considering that the retroactive application to
him of Articles 189 and 192, P.D. 603 as amended by P.D. 1179 may not
be assailed because said articles are procedural in nature and there is no
vested right in rules of procedure.
We find no merit' to the opposition of the People. Our dismissal of the
mandamus petition in G.R. L-48788 which was for lack of merit due to the
insufficient proof of minority of the accused is no bar to raising the same
issue in the instant automatic review of the case after We had admitted the
proper authentication of the accused's birth certificate "to form part of the
evidence." (See Resolution of June 4, 1981, rollo). The second ground is
likewise without merit for the accused was below 21 years at the time of his
trial and even at the time judgment was promulgated to him on December
3, 1976 (he was then 19 years, 3 months and 3 days old). Neither does the
third ground hold water because P.D. 603 was amended on May 15, 1977,
which was after the trial and conviction already of the accused. The
amendment passed during the pendency of the appeal and it cannot
adversely affect the right, privilege or benefit accorded to the minor for
P.D. 603, which reads as follows:
Art. 192. Suspension of Sentence and Commitment of Youthful
Offender.— If after hearing the evidence in the proper proceedings, the
court should find that the youthful offender has committed the acts
charged against him the court shall determine the imposable penalty,
including any civil liability chargeable against him. However, instead of
pronouncing judgment of conviction, the court shall suspend all further
proceedings and shall commit such minor to the custody or care of the
Department of Social Welfare, or to any training institution operated by
the government, or duly licensed agencies or any other responsible
person, until he shall have reached twenty-one years of age or, for a
shorter period as the court may deem proper, after considering the
reports and recommendations of the Department of Social Welfare or
the agency or responsible individual under whose care he has been
committed.
The youthful offender shall be subject to visitation and supervision by a
representative of the Department of Social Welfare or any duly
licensed agency or such other officer as the Court may designate
subject to such conditions as it may prescribe.
P.D. 1179, Section 2 and made effective August 15, 1977 amended
Articles 192 and 193 of P.D. 603 by adding as its penultimate paragraph
the following:
The benefits of this article shall not apply to a youthful offender who
has once enjoyed suspension of sentence under its provisions or to
one who is convicted of an offense punishable by death or life
imprisonment. (emphasis supplied)
The lower court having erred in not suspending the sentence of conviction
against the accused-appellant who is entitled thereto under the original
provisions of Article 192 of P.D. 603, We agree with the defense plea that
the "accused-appellant's imprisonment in the BRIG (be treated) as
equivalent to what should have been his full period of commitment under
the care and custody of the Ministry of Social Services and Development.
After all, and as said Ministry has reported, it has been regularly visiting
accused-appellant at his cell in the BRIG and is, therefore, in a position to
attest to the exceptional behavior of accused-appellant."
We have examined carefully the documentary proofs attached to the
appellant's Motion to Dismiss showing that from August 11, 1975 to the
present, accused-appellant has behaved properly and has shown his
capability to be a useful member of the community, and these are (a)
Official Report of the BRIG Commander, USN Subic Naval Base; (b)
Progress Report filed with this Court on November 6, 1980 by the Ministry
of Social Services and Development, Olongapo City Branch; and (c)
Progress Report with annexes dated February 18, 1981 filed on March 4,
1981 by the Ministry of Social Services and Development; and (d) Diploma
awarded by the University of La Verne California, U.S.A. showing
completion of a course in Behavioral Science, on January 24, 1981, while
he was a prisoner in the BRIG. The Final Report prepared and submitted
by the Supervising Social Worker of the Ministry of Social Services and
Development Dated September 14, 1981 was subsequently filed with Us
and it states as follows:
FINAL REPORT
In compliance with the request of the Legal Office, U.S. Naval Base,
the Ministry of Social Services and Development, Olongapo City
Branch Office respectfully submits this final report on the progress of
the behavior of the above-mentioned youth.
Michael Jerome Butler has been detained at the Naval Station Brig of
the U.S. Naval Base for a period of six years now. Since his detention,
he has been visited and was given counselling by the Social Worker.
While in confinement, he was assigned to the Brig's Library, Coffee
Mess and at present at the Administrative Office. At the Administrative
Office, he is responsible in keeping the records on file, typing various
forms and correspondence and forms reproduction. The present Brig
Officer said that Prisoner Butler works well requiring limited supervision
as he sets and pursues goals in an organized manner. He can be relief
upon to complete an assigned task in a timely manner. He also
performs all janitorial work required for the above-mentioned spaces.
He gets along very well with the Brig's Staff and other confines and he
goes out of his way to help other confines adjust to confinement and to
rehabilitate themselves.
He made use of his time in the Brig constructively and on January 29,
1981, he graduated at the LA Verne Co with the degree m Behavioral
Science. This was made possible thru his self-determination, diligence,
courage and interest. He also takes an active part in promoting health
and physical fitness to all cofinees as well as staff.
Confines Butler is not only involved in assisting and helping his co-
confines but also gives financial support to a disabled person in the
person of Benjamin dela Cruz and to his (Butler) mother who is in
United States.
Mr. Butler has been incharge of the complete operation of the Brig's
Library and he kept it well stocked and completely clean and neat. He
also taken the duties of a Coffee Mess and had accomplished the job
expertly.
He was given a task within the compound that only trusted confinee
would be given and had carried them with zest. His personal
appearance and uniforms are always in accord with the Navy standard.
With the above findings and Mr. Butler's desire to start life anew, this
Final Report is submitted.
From these reports, We are fully satisfied that the accused. appellant has
behaved properly and has shown his capability to be a useful member of
the community. It is of no moment that the accused had not been
specifically committed by the court to the custody or care of the
Department of Social Welfare then, now the Ministry of Social Services and
Development, or to any training institution operated by the government or
duly-licensed agencies as directed under Article 192 of P.D. 603. At any
rate, the Commander of the U.S. Naval Base in Subic Bay to whom the
accused was committed in the Order of December 3, 1976 pending the
finality of judgment rendered in the case pursuant to the provisions of
paragraph 5, Article 13 of the Revised Base Military Agreement, may be
considered a responsible person to whom the accused may be committed
for custody or care under the said Article 192 of P.D. 603. What is
important is the result of such custody and care showing his conduct as
well as the intellectual, physical, moral, social and emotional progress
made by the accused as shown in the favorable recommendation of the
Supervising Social Worker of the Ministry of Social Services and
Development who had visited him regularly and given counselling. We
hereby approve the recommendation of the Ministry that "Michael Butler be
given a chance to enjoy his life fully outside the jail, thus promoting Ms
best interest and welfare" (Progress Report dated October 27, 1980); "that
Mr. Michael Butler is now fully rehabilitated, it is our recommendation that
he be given an opportunity to live happily and prove himself outside the
Brig" (Progress Reported dated February 18, 1981); "with the above
findings and Mr. Butler's desire to start life anew, this Final Report is
submitted." (Final Report dated September 14, 1981).
The dismissal of the case against the accussed Michael Butler is,
therefore, meritorious and justifiable. We hereby order his final discharge
therefrom. His final release, however, shall not obliterate his civil liability for
damages in the amount of P24.000.00 to the heirs of the victim which We
hereby affirm. Such release shall be without prejudice to the right for a writ
of execution for the recovery of civil damages. (Article 198, P.D. 603).
WHEREFORE, IN VIEW OF ALL THE FOREGOING, the case against the
accused-appellant Michael J. Butler is hereby DISMISSED and We hereby
order his final discharge from commitment and custody. The civil liability
imposed upon him by the lower court shall remain. Costs de oficio.
Motion To Dismiss granted. SO ORDERED.
Fernando, C.J., Concepcion Jr., De Castro, Melencio-Herrera, Plana,
Escolin Vasquez, Relova and Gutierrez, Jr., JJ., concur.
Teehankee, J., took no part.
Makasiar, J., I join the dissent of Justice Aquino.
Abad Santos, J., I reserve my vote.
Separate Opinions: AQUINO, J.:, dissenting:
Separate Opinions: MAKASIAR, J.:, dissenting:
I concur in the finding that Michael J. Butler, an American Negro serving as
a seaman in the U.S. Navy since February 3,1975 (he was born on
September 4, 1957), committed murder on August 8, 1975 when he killed
a hostess, Enriquita Alipo 26, a native of Bugasong, Antique, in her
residence at 8 Fontaine Street, Olongapo City, as proven by his
extrajudicial confession (Exh. H) which was corroborated by evidence of
the corpus delicti (Exh. D).
That confession was admissible in evidence, although it was taken during
custodial interrogation, when Butler was not assisted by counsel, because
he voluntarily, knowingly and intelligently waived in writing his
constitutional rights to have counsel and to remain silent. Such waiver is
allowed (Miranda vs. Arizona, 16 L. Ed. 2nd 684).
Butler's confession shows that the murder was qualified by abuse of
superiority. It was not aggravated by the circumstance of outraging or
scoffing at her person or corpse. The trial court appreciated that
aggravating circumstance because of the testimony of Doctor Angeles
Roxas, the medico-legal officer, that Butler had anal intercourse with the
victim after her death.
Doctor Roxas based his conclusion on the fact that the victim's anus was
partly open and contained spermatozoa. He said that the anus would have
completely closed had the intercourse occurred while the victim was still
alive.
On the other hand, Butler in his confession said:
I rolled the girl over and made love to her. (By this I mean I engaged in
sexual intercourse with her from the rear.) My intention was to screw
her in the vagina. If I screwed her in the rectum, I didn't intend to.
After we finished, I rolled over and went back to sleep again ... When
she and I engaged in sexual intercourse, I reached a climax while by
penis was in her. (Exh. H).
The trial court conjectured that "Butler not satisfied with a normal vaginal
intercourse demanded from the deceased (hospitality girl) an anal
intercourse. Upon being refused, the accused infuriated into a demonic
frenzy, took hold of a saint figurine, knocked his victim unconscious,
smothered her to death with a pillow and after she was dead, performed
anal coitus with the dead person."
In my opinion the speculations of the medico-legal officer and the trial
judge that there was posthumous sodomy are unwarranted. The
prosecution is bound by Butler's confession. He indicated therein that he
had sexual intercourse with the victim from the rear when she was alive
and not after her death. He alleged that the squabble over his five-peso
bill, which the victim took without his consent, was the cause of the fight
which he had with the victim.
Consequently, the circumstance of having outraged or scoffed at the
victim's corpse cannot be appreciated in this case.
The confession also proves that Butler did not intend to commit so grave a
wrong as that which he committed and that he was intoxicated at the time
the killing was perpetrated.
Taking into account the privileged mitigating circumstance of minority, the
penalty imposable on Butler should be lowered by one degree. He is
entitled to an indeterminate sentence.
He should be sentenced to a penalty of five years of prision correccional
maximum as minimum to eleven years of prision mayor as maximum.
The trial court did not suspend the sentence of the accused although he
was below eighteen years of age when he killed the victim because he did
not ask for a suspended sentence and he had committed a capital offense.
On December 17, 1976, or a few days after the trial court promulgated its
judgment sentencing Butler to death, when he was amity 19 years, three
months and thirteen days old, his counsel filed a motion for new trial
wherein he asked that he be given a suspended sentence. The trial court
denied the motion. That incident was terminated in the lower court when it
issued an order on May 3, 1977, denying Butler's second motion for
reconsideration.
Thereafter, the record of the case should have been elevated to this Court
without delay for automatic review of the death penalty. But, inexplicitly, the
record was received in this Court more than twenty-two months later, or on
March 30, 1979.
Before the elevation of the record, Butler on August 25, 1978 filed in this
Court a petition for mandamus wherein he prayed that the trial court be
ordered to set aside its judgment of conviction, to suspend the proceedings
and to commit Butler to the custody of the Department of Social Welfare or
any correctional institution pursuant to article 192 of the Child and Youth
Welfare Code before it was amended by Presidential Decree No. 1179.
This Court in its minute resolution of December 13, 1978 dismissed the
petition for lack of merit (Butler vs. Judge Veridiano II, L-48786).
It is incontrovertible that Butler was seventeen years, eleven months and
four days old when he killed the victim. Had he not contested the validity of
his confession (an exercise in futility) and had he pleaded guilty and asked
for a suspended sentence, he could have been entitled to the benefits of
article 192 of the Child and Youth Welfare Code (applicable to minors
below twenty-one years of age) before it was amended by Presidential
Decree No. 1179 which took effect on August 15, 1977. The text of article
192 is as follows:
ART. 192. Suspension of Sentence and Commitment of Youthful
Offender — If after hearing the evidence in the proper proceeding the
court should find that the youthful offender has committed the acts
charged against him the court shall determine the imposable penalty,
including any civil liability chargeable against him. However, instead of
pronouncing judgment of conviction, the court shall suspend all further
proceedings and shall commit such minor to the custody or care of the
Department of Social Welfare, or to any training institution operated by
the government, or duly licensed agencies or any other responsible
person, until he shall have reached twenty-one years of age or, for a
shorter period as the court may deem proper, after considering the
reports and recommendations of the department of Social Welfare or
the agency or responsible individual under whose care he has been
committed.
The youthful offender shall be subject to visitation and supervision by a
representative of the Department of Social Welfare or any duly
licensed agency or such other officer as the Court may designate
subject to such conditions as it may prescribe.
Presidential Decree No. 1179 reduced the age of you offenders to less
than eighteen years (similar to the original provision of article 80 of the
Revised Penal Code) and amended article 192 by requiring that the
youthful offender should apply for a suspended sentence and that the
suspension of the sentence should be allowed only when public interest
and the interest of the minor would be served thereby.
The amendment also provided that there should be no suspension of the
sentence of (1) one who once enjoyed the suspension of sentence under
article 192, (2) one who is convicted of an offense punishable by death or
life 'imprisonment and (3) one who is convicted for an offense by military
tribunals.
The text of article 192, as amended by Presidential D Nos. 1179 and 1210
(effective on October 11, 1977) is as follows:
ART. 192. Suspension of Sentence and Commitment of Youthful
Offender.— If after hearing the evidence in the proper proceedings, the
court should find that the youthful-offender has committed the acts
charged against him, the court, shall determine the imposable penalty,
including any civil liability chargeable against him. However, instead of
pronouncing judgment of conjuction the court upon application of the
youthful offender and if it the best interest of the public as well as that
of the offender will be served thereby, may suspend all further
proceedings and commit such minor to the custody or care of the
Department of Social Services and Development or to any training
institution operated by the government or any other responsible person
until he shall reached twenty-one years of age, or for a shorter period
as the court may deem proper, after consider the reports and
recommendations of the Department of Social Services and
Development or the government training institution or responsible
person under whose care he has been committed.
Upon receipt of the application of the youthful offender for suspension
of his sentence, the court may require the Department of Social
Services and Development to prepare and submit to the court a social
case study report over the offender and his family.
The Youthful offender shall be subject to visitation and supervision by a
representative of the Department of Social Services & Development or
government training institution as the court may designate subject to
such conditions as it may prescribe.
The benefits of this article shall not apply to a youthful offender who
has once enjoyed suspension of sentence under its provisions or to
one who is convicted of an offense punishable by death or life
imprisonment or to one who is convicted for an offense by the Military
Tribunals.
But he assailed the admissibility of his confession under section 20, Article
IV of the Constitution. He even filed a motion for new trial on the ground of
newly discovered evidence tending to prove that the victim was killed by
her husband.
On September 24, 1981, Butler filed in this Court a verified motion to
dismiss the case on the ground that he had been illegally deprived of his
right to a suspended sentence and to be committed to a correctional
institution, as prescribed in the Child and Youth Welfare Code.
It was alleged that since August 11, 1975 Butler has been confined in the
Subic Bay Naval Station Brig (stockade). He even enrolled in one of the
schools of the La Verne College in the Subic Naval Base and finished the
course in Behavioral Science.
I dissent from the ponente's opinion that Butler should have been given a
suspended sentence and that, by reason of his good behavior while
confined in the Subic Naval Base Stockade, he should now be released
and discharged.
Butler has taken inconsistent positions. His ambivalence is the cause of his
having lost the right to ask for a suspended sentence. His repudiation of
his confession and his plea of not guilty are inconsistent with his contention
that he should have been given a suspended sentence, a remedy which
presupposes that he is guilty.
Because Butler is now twenty-five years old, the question of whether he is
entitled to a suspended sentence has become moot and academic. He is
no longer a juvenile offender.
He should be made to serve his sentence of five years of prision
correccional as minimum to eleven years of prision mayor as maximum.
The most that can be done for him is to give him full credit for his
confinement in the stockade, a period already exceeding the minimum of
his indeterminate sentence, and to give him a conditional pardon or
release him on parole.
This Court has ruled in several cases that where the accused was below
eighteen years at the time he committed a crime but he was over eighteen
years at the time of his trial or conviction, he is not entitled to a suspended
sentence (People vs. Casiguran L-45387, November 7, 1979, 94 SCRA
244, 249).
If at the time the case is decided by this Court, the accused is no longer a
minor, with more reason, he is not entitled to a suspended sentence.
Thus, where on May 14, 1963, when the robbery with homicide was
committed, Teresita Nolasco one of the accused, was 15 years and five
months old, and the trial court did not suspend her sentence but convicted
her, this Court in its decision dated December 19, 1970, affirmed the
judgment of conviction and imposed on her the proper penalty after giving
her the benefit of the privileged mitigating circumstance of minority (People
vs. Espejo, L-27708, 36 SCRA 400, 425. See People vs. Parcon, L-39121,
December 19, 1981, 110 SCRA 425; People vs. Labrinto, L-43528-29,
October 10, 1980, 100 SCRA 299; People vs. Capistrano, 92 Phil. 125;
People vs. Celespara 82 Phil. 399; People vs. Nunez, 85 Phil. 448).

  
G.R. No. 188610               June 29, 2010
PEOPLE OF THE PHILIPPINES, vs.
ALBERT SANCHEZ y GALERA,  unlawfully and feloniously attack, assault and stab one Jeane De Leon y
VELASCO, JR., J.:
For review is the Decision1 of the Court of Appeals (CA) dated February
27, 2009, in CA-G.R. CR-H.C. No. 02902, which affirmed with modification,
the decision of the Regional Trial Court (RTC) of Marikina City in Criminal
Case Nos. 06-8245-MK, 06-8246-MK, 06-8247-MK and 06-8248-MK,
finding appellant Albert Sanchez y Galera guilty of two (2) counts of murder
and two (2) counts of frustrated murder.
The accusatory portions of the criminal informations filed against Sanchez
for the crimes aforestated are respectively reproduced below:
Criminal Case No. 06-8245-MK for Murder
That on or about the 27th day of January 2006, in the City of Marikina,
Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, armed with knife, with intent to kill, did then and there
willfully, unlawfully and feloniously attack, assault and stab one Jufer
James De leon y Cruz, a minor, 11 years of age, thereby inflicting upon
him fatal wounds which caused his death soon after the said killing having
attended by the qualifying circumstance of treachery and evident
premeditation, which upgrades the killing to Murder. CONTRARY TO LAW.
Criminal Case No. 06-8246-MK for Murder
That on or about the 27th day of January 2006, in the City of Marikina,
Philippines and within the jurisdiction of this Court, the above-named
accused, armed with knife, with intent to kill, did then and there willfully,
unlawfully and feloniously attack, assault and stab one Edgar De Leon,
thereby inflicting upon him fatal wounds which caused his death soon
thereafter the said killing having attended by the qualifying circumstance of
treachery and evident premeditation, which upgrades the killing to Murder.
CONTRARY TO LAW.
Criminal Case No. 06-8247-MK for Frustrated Murder
That on or about the 27th day of January 2006, in the City of Marikina,
Philippines and within the jurisdiction of this Court, the above-named
accused, armed with knife, with intent to kill, did then and there willfully,
Cruz, thereby inflicting upon [her] stab wounds which would ordinarily
[cause] her death, thus performing all the acts of execution which would
have produced the crime of murder as a consequence thereof, but
nevertheless did not produce it by reason of cause/s independent of [his]
will that is due to the timely and able medical assistance rendered to said
Jeane de Leon y Cruz, which prevented [her] death. CONTRARY TO LAW
Criminal Case No. 06-8248-MK for Frustrated Murder
That on or about the 27th day of January 2006, in the City of Marikina,
Philippines and within the jurisdiction of this Court, the above-named
accused, armed with knife, with intent to kill, did then and there willfully,
unlawfully and feloniously attack, assault and stab one Jelyn Mae de Leon
y Cruz, thereby inflicting upon the latter stab wounds which would
ordinarily [cause] her death, thus, performing all the acts of execution
which would have [produced] the crime of murder as a consequence
thereof, but nevertheless did not produce it by reason of cause/s
independent of his will, that is due to the timely and able medical
assistance rendered to said Jelyn May De Leon y Cruz, which prevented
her death. CONTRARY TO LAW.
When arraigned, Sanchez, duly assisted by counsel, pleaded not guilty to
all the charges.
In the ensuing trial, the prosecution presented in evidence the testimonies
of John Ray De Leon, Jelyn Mae De Leon, Jeane De Leon, Dr. Arnel
Marquez, the Medico-Legal Officer of Rizal who performed an autopsy on
the cadaver of two of the victims, and the arresting and investigating police
officers.2
On the other hand, the defense waived its right to present evidence.
The pertinent facts, as gathered from the records, may be summarized as
follows:
On June 26, 2006, siblings John Ray, Jufer James3 (Jufer), Jelyn Mae
(Jelyn), Jorvi and Junel, all surnamed De Leon, were at home by
themselves, their parents, Edgar and Jeane,4 having gone out to buy
certain items for their catering business. Between 9:00 to 10:00 p.m. of that
day, Sanchez entered the De Leon’s house in dela Paz St., Marikina City,
and there and then told John Ray, then 10 years old, that his father Edgar
would give him some money. Sanchez then proceeded to the master’s
bedroom at the second floor of the house. 5 John Ray was familiar with
Sanchez, the latter having once stayed with the family as a houseboy.
When John Ray asked him to leave, Sanchez proceeded to the comfort
room on the ground floor where Jufer was then inside defecating. Sanchez
was still inside that room when spouses Jeane and Edgar arrived.
Later learning where Sanchez was, Edgar asked the former to come out.
Sanchez would thereafter request Edgar for money, claiming that his sister
is confined in a hospital in a nearby town.
From her room, Jeane later went downstairs, joined Edgar and Sanchez,
and explained to their irritated-looking former houseboy that they could
only spare PhP 100 as they had just purchased several items for their
business. In the meantime, Edgar handed Sanchez P100, telling him just
to come back the following day. With a hostile expression, Sanchez
accepted the money, then left. Later, Jufer confided to his mother that
Sanchez, while in the rest room, had pointed a knife at and threatened to
kill him. Obviously terrified by the threat, Jufer slept in his parents’ room
that night.
Very early the following morning, June 27, Jeane prepared breakfast for
her school children. Noticing Jufer’s absence at the breakfast table, she
asked the 13-year-old Jelyn to get her kid brother down. 6 Jelyn went to
Jufer’s bedroom upstairs and there found him lying on his bed face down.
Suddenly, somebody grabbed her from behind, covered her mouth,
pointed a knife on her neck and later stabbed her. 7 The assailant then
pushed her towards the bed, told her to be quiet and pressed her face
down near her brother until she could not breathe. Jelyn recognized the
voice to be that of Sanchez. And while Jelyn was calling out to get Jufer’s
attention whom she thought was merely asleep, Sanchez stabbed her on
the chest. Jelyn reacted by boxing and kicking Sanchez, shouting for help
at the same time. And even as Sanchez gave her a piece of cloth to wipe
the blood in her neck and motioned her to keep quiet, Jelyn managed to
plead for her life.8
Meanwhile, Jeane who decided to look for Jufer herself heard a commotion
and a thudding sound. When she checked what it was, son Jorvi rushed
towards her to inform her that Sanchez was inside the house. The nervous
Jeane then hurried to Jufer’s room upstairs where she saw Sanchez
holding a knife against Jelyn’s bloodied neck. Then Jeane uttered, "Dali,
tumawag ka ng 161."9 At that instance, Sanchez shoved Jeane inside
Jufer’s room even as she pleaded for their lives. In response, Sanchez
placed his fingers on his lips to signal silence. Thereafter, Jeane turned her
son, Jufer, upside down only to discover that he was bathed in blood. Jufer
weakly uttered, "Mama, si Kuya Albert sinaksak ako."10 At this point,
Sanchez ran outside the room.
Jeane, cradling her bloodied son, intending to bring him to the hospital,
again instructed daughter Jelyn to call 161. While carrying Jufer outside
the room, Jeane noticed Sanchez assaulting Edgar near the stairs. She
then brought Jufer to her room so she could help Edgar. In the process,
she spotted a knife in the hallway floor, and picked it up as she
approached Edgar who was then sitting on the floor. At that juncture,
Sanchez turned his ire towards her and stabbed her on the lower left side
of the chest11. When the injured Edgar stood up in an obvious bid to help
his wife, Sanchez again lunged at and stabbed the former. Her own
attempt to hit Sanchez with the knife she picked up earlier, however,
proved unsuccessful. In fact, Sanchez continued with his stabbing spree
inflicting on her injuries on her lower left eye and stomach. Then he
returned to Edgar, stabbing him on the stomach and side, causing his large
intestines to spill out. Only after Edgar again fell did Sanchez run out of the
house.
After Sanchez has left, Jeane helped her husband up, gathered all her
children in one room, placed her bloodied son beside his equally bloodied
father and locked the door. She then cried out for help. At this time, Jufer
was no longer moving, while Edgar was hardly breathing.
At around 6:35 in the morning of January 27, 2006, POl Reynaldo
Candelaria, responding to radio call reporting a stabbing incident,
proceeded to the De Leons’ place. A trembling John Ray met and told tell
him who stabbed his father. When Candelaria opened the gate of the
house, he saw Sanchez running towards the back of the house holding a
knife. And after a chase, Candelaria, with the help of nearby residents,
caught up with and arrested Sanchez. At the Amang Rodriquez Hospital
where police operatives brought him and where Jeane and Jelyn were sent
for treatment, mother and daughter identified Sanchez as the assailant.
Meanwhile, the bodies of Jufer and Edgar de Leon were brought to the
Eastern Police District crime laboratory for autopsy.
The uniform entry, "Stab wounds, trunk", appeared in the separate autopsy
reports12 prepared by Medico Legal Officer Jose Arnel M. Marquez 13 as the
cause of death of both Jufer and Edgar De Leon. 14 On the other hand, the
Medico-Legal Certificate15 issued by Dr. Alejandro Geronimo stated that
Jeane de Leon was confined at the hospital from January 27, 2006 to
February 4, 2006 for treatment of multiple stab wounds. 16 In the case of
Jelyn, she was confined and treated also for multiple wounds. 17
Jeanne and Jelyn’s combined hospital bills amounted to PhP 300,000,
while the internment and burial expenses for Edgar and Jufer totaled to
PhP 150,000.18
When the defense was called for initial presentation of its evidence, the
defense counsel, in open court, manifested, with the conformity of the
accused, that the defense is waiving its right to present evidence. 19
On July 23, 2007, in consolidated Crim. Case Nos. 06-8245-MK to 068248-
MK the Regional Trial Court (RTC) of Marikina City, Branch 272, the
RTC20 rendered a decision finding accused Sanchez guilty of two (2)
counts of murder and two (2) counts of frustrated murder. The dispositive
portion of the decision states:
WHEREFORE, in view of the foregoing, judgment is hereby rendered, as
follows:
1. In Criminal Case No. 06-8245-MK, accused ALBERT SANCHEZ
y GALERA is found GUILTY beyond reasonable doubt of the crime
of MURDER as defined and penalized under Article 248 of the
Revised Penal Code qualified by treachery and evident
premeditation and is hereby sentenced to Reclusion Perpetua and
to pay the heirs of the victim Jufer James de Leon the amount of
P50,000.00 as indemnity for his death, P42,500.00 as actual
damages, and P100,000.00 as moral damages.
2. In Criminal Case No. 06-8246-MK, accused ALBERT SANCHEZ
y GALERA is also found GUILTY beyond reasonable doubt of the
crime of MURDER as defined and penalized under Article 248 of
the Revised Penal Code qualified by treachery and evident
premeditation and is hereby sentenced to reclusion perpetua and
to pay the heirs of the victim Edgar De Leon the amount of
P50,000.00 as indemnity for his death, P42,500.00 as actual
damages and P100,000.00 as moral damages;
3. In Criminal Case No. 06-8247-MK, accused ALBERT SANCHEZ
y GALERA is found GUILTY beyond reasonable doubt of the crime
of FRUSTRATED MURDER under Article 248 in relation to Article
6 of the Revised Penal Code. Applying the indeterminate Sentence
Law, and in the absence of modifying circumstances, he is hereby
sentenced to in indeterminate prison term of TEN (10) YEARS and
ONE (1) DAY of prision mayor as minimum, to SEVENTEEN (17)
YEARS and FOUR (4) MONTHS of reclusion temporal as
maximum, and to pay his victim Jeane de Leon the amount of
P40,786.55 as actual expenses and P 50,000.00 as moral
damages; and
4. In Criminal Case No. 06-8248-MK, the accused ALBERT
SANCHEZ y GALERA is found GUILTY beyond reasonable doubt
of the crime of FRUSTRATED MURDER under Article 248 in
relation to Article 6 of the Revised Penal Code. Applying the
indeterminate Sentence Law, and in the absence of modifying
circumstances, he is hereby sentenced to in indeterminate prison
term of TEN (10) YEARS and ONE (1) DAY of prision mayor as
minimum, to SEVENTEEN (17) YEARS and FOUR (4) MONTHS of
reclusion temporal as maximum, and to pay his victim Jelyn Mae
de Leon the amount of P66,341.85 as actual expenses and
P50,000.00 as moral damages.
The period during which the herein accused was in detention during the
pendency of these cases shall be credited to him in full provided he agrees
to abide by and comply with the rules and regulations of the City Jail of
Marikina. SO ORDERED.
Therefrom, Sanchez went to the CA on appeal, docketed as CA G.R. HC-
No. 02902, on the lone submission that the RTC erred in convicting him of
murder and frustrated murder when the qualifying circumstances of
treachery and evident premeditation have not been proven beyond
reasonable doubt.
Eventually, the CA rendered on February 27, 2009 a Decision affirming
that of the RTC, with the following modification: the increase in the award
of civil indemnity, but the reduction of the award for moral damages in
Criminal Case Nos. 06-8245-MK and 06-8246-MK, respectively.
The fallo of the CA’s decision reads:
WHEREFORE, the appeal is DENIED and the appealed decision dated 23
July 2007 is AFFIRMED with MODIFICATIONS in that: (a) the awards of
civil indemnity in Criminal Case Nos. 06-8245-MK and 06-8246-MK are
respectively increased to P75, 000.00; while the amounts of moral
damages in said cases are reduced to P50, 000.00 respectively.
As did the RTC, the CA found the killing of Edgar and Jufer and the
wounding of the Jeane and Jelyn to have been attended by treachery and
evident premeditation.
On March 12, 2009, appellant filed a timely Notice of Appeal of the
appellate court’s decision.
By Resolution of September 16, 2009, the Court accepted the appeal and
required the parties to submit supplemental briefs, if they so desire within
30 days from notice. Each, however, manifested the willingness to submit
the case on the basis of the records and the pleadings already submitted.
The Ruling of the Court
By virtually reiterating his arguments raised before the CA, appellant
admits criminal responsibility for the death of Edgar and Jufer and the
almost fatal injuries of Jelyn and Jeane. He now presents the following
point as conclusion that the appellate court should have made: that the
prosecution failed to prove with moral certainty the circumstance of
treachery and evident premeditation, hence, he should be acquitted of the
crimes charged convicting him instead of the lesser crimes of homicide and
frustrated homicide.
The desired downgrading of appellant’s criminal liability, from murder to
homicide (two counts) and from frustrated murder to frustrated homicide
(two counts) cannot be granted. The instant appeal is, accordingly,
dismissed.
Article 24821 of the Revised Penal Code defines "Murder" as the unlawful
killing of a person, which is not parricide or infanticide, provided that
treachery or evident premeditation, among other circumstances, attended
the killing. The presence of one of the circumstances enumerated in Art.
248 of the Code would suffice to qualify a killing as murder.
There is treachery when the offender commits any of the crimes against
persons, employing means, methods or forms which tend directly and
specially to ensure its execution, without risk to himself arising from the
defense, which the offended party might make. For treachery to be
appreciated, two conditions must concur:
(1) The employment of means, methods or manner of execution
that would ensure the offender’s safety from any defense or
retaliatory act on the part of the offended party; and
(2) The offender’s deliberate or conscious choice of means,
method or manner of execution.22
In the case at bar, circumstances do obtain to justify the finding of
treachery in the killing of Jufer. Consider: Appellant surreptitiously entered
the De Leons’ residence at around 5:00 o’clock in the morning of June 27,
2006 and snuck up inside Jufer’s bedroom, while the other De Leon
children were busy preparing for school and their mother attending to their
breakfast. The family was unaware that appellant went to the second floor
and stabbed Jufer, at that time merely 11 years old who most likely had no
opportunity, but surely without the needed heft and strength to ward off,
much less overpower, the appellant.
The essence of treachery is the sudden attack by an aggressor without the
slightest provocation on the part of the victim, depriving the latter of any
real chance to defend himself, thereby ensuring the commission of the
crime without risk to the aggressor.23 The trial court correctly appreciated
the qualifying aggravating circumstance of treachery in the killing of Jufer.
The Court can grant that no one witnessed the actual killing of Jufer. This
fact alone, however, is not an argument against the criminal liability of the
appellant for the lad’s gruesome death. As may be recalled, appellant was
in Jufer’s room, holding a bloody knife over the unmoving boy lying face
down on bed when Jelyn entered his brother’s room. More importantly,
Jufer, before breathing his last, positively identified appellant him as his
assailant.
Jurisprudence teaches that there is treachery when an adult person
attacks and causes the death of a child of tender years.24 As the Court
elucidated in People vs. Cabarrubias,25 the killing of a child is characterized
by treachery even if the manner of assault is not shown. For, the weakness
of the victim due to his tender years results in the absence of any danger
to the accused.
What Jufer uttered just before he expired - "Mama, si Kuya Albert,
sinaksak ako"- is admissible in evidence against the appellant pursuant to
Section 37, Rule 130 of the Rules of Court.
Sec. 37. Dying declaration. — The declaration of a dying person, made
under the consciousness of an impending death, may be received in any
case wherein his death is the subject of inquiry, as evidence of the cause xxxx
and surrounding circumstances of such death.
Court: Where was he [Jufer], inside the room?
A dying declaration is an evidence of the highest order; 26 it is entitled to the
utmost credence on the premise that no one person who knows of his Witness: He was on the bed lying face down, Your Honor.
impending death would make a careless and false accusation. At the brink
of death, all thoughts of concocting lies disappear. Atty. Gonzales: You said that someone covered your mouth, what
did you do when that somebody covered your mouth?
Treachery is likewise appreciated in the stabbing of Jelyn. When Jelyn
went up to look for Jufer, appellant approached her from behind, covered Witness: I kept silent, I felt something x x x a pointed object on my
her mouth and stabbed her. The relative physical positions of the neck, sir.
unsuspecting Jelyn and appellant when the latter commenced the attack
and the suddenness thereof caught Jelyn unaware and unable to defend
Atty. Gonzales: After that, what transpired next, if any?
herself. Jelyn’s testimony on direct examination established the elements
of treachery:27
Witness: I was pinned down and I was stabbed, sir.
Court: What time was it when you were eating?
Court: Did you see this someone who covered your mouth?
Witness: 5:30 0’clock in the morning your Honor.
Witness: Not yet Your Honor.
Court: Of what date?
xxxx
Witness: January 27, 2006 Your Honor.
Atty. Gonzales: Madam witness, you said a person covered
your mouth, you did not do anything but despite that he
xxxx
stabbed you?
Atty. Gonzales: You said that after eating you were looking for
Witness: Yes, sir.
Jufer, what did you do to find him?
Atty. Gonzales: You said that you were pinned down by this
Witness: I went to their room sir.
person, what happened next?
Atty. Gonzales: When you said to their room, which room are you
Witness: He pressed my head until I could not breath[e] anymore,
referring?
sir.
Witness: The room of Jufer, sir.
xxxx
xxxx
Atty. Gonzales: But at the time you were stabbed by that person,
were you not able to talk to your brother Jufer?
Atty. Gonzales: What happened next after that?
Witness: No sir. (Underscoring added.)
Witness: I was looking for him and when I found him, somebody
covered my mouth, sir.
The notion of Jelyn being helpless when appellant made his brutal
moves finds corroboration from her mother’s testimony, as follows:
COURT: What time did you wake up during the day [June 27,
2006] ?
WITNESS: 5:00 o’clock in the morning your Honor.
COURT: What about the children?
WITNESS: Same time your Honor.
xxxx
ATTY. GONZALES: What did he [Jorvi] tell you?
WITNESS: When he approached me, he told me, "Mama, nasa
itaas si Kuya Albert"
ATYY. GONZALES: What was your reaction when your son told
you that Kuya Albert was upstairs?
WITNESS: I felt nervous because I realized that the commotion I
heard was coming from upstairs, sir.
ATTY. GONZALES: What did you do after that?
WITNESS: I immediately went inside the house and went upstairs,
sir.
ATTY. GONZALES: When you were upstairs, what happened
next?
WITNESS: When I went upstairs I saw my daughter Jelyn Mae
bloodied at the right side of her neck, sir.
ATTY. GONZALES: What was your reaction when you saw that
your daughter was bloodied at the right side of her neck?
WITNESS: I immediately uttered, "dali tumawag ka ng 161"
ATTY. GONZALES: After that what happened?
WITNESS: I went inside the room of Jufer, sir. And when I entered
the room, Albert shoved me, sir.
ATTY. GONZALES: By the way, where was this Albert when you
entered the room?
WITNESS: When I saw Jelyn, Albert was on her back holding a
knife, sir.
ATTY. GONXALES: What was Jelyn doing at that time?
WITNESS: I saw there was fear on her face, sir.
xxxx
COURT: Was your son still alive at that time?
WITNESS: Yes, Your Honor. He said something to me x x x
"Mama, si Kuya Albert, sinaksak ako"
COURT: Where was the accused when your son Jufer told you
that?
WITNESS: He suddenly ran outside, Your Honor."
The manner appellant assaulted and eventually killed Edgar also indicated
treachery. Like his wife and children, Edgar had at the start no idea of
appellant’s armed and dangerous presence in the house on the fateful
morning in question. Jelyn testified28 that, while she and her mother were
being held in the room by appellant, Edgar came up but appellant pushed
past Edgar by the stairs, stabbed him, then grabbed another knife from the
kitchen before coming back upstairs to finish Edgar off. The attack against
Edgar when he was on his way to the upper floor was so sudden and
unexpected, negating any suggestion that he was in a position to defend
himself. These circumstances are manifestly indicative of the presence of
conditions under which treachery may be appreciated, i.e., the
employment of means of execution that affords the person attacked no
opportunity to defend himself. Even more, the fact that appellant inflicted
more stabbing blows on Edgar after he fell on his bottom gravely wounded
and with his large intestines spilling out, clearly exhibits the treacherous
nature of the killing.
Joshua Ray De Leon testified being awakened by the noise and seeing his
father near the top of the stairs, while appellant, wielding a knife, was at
the middle of the stairs following the former. Because of fear, he hid in the
hallway bathroom but witnessed the stabbing through the slightly opened
bathroom door.
Treachery is not, however, attendant in the stabbing of Jeane. While at the
back of their house, son Jorvi informed her that appellant was upstairs. In
fact, she instructed her daughter Jelyn to call 611 as she asked the
appellant to spare their lives. Appellant even warned her to keep
quiet.29 After she discovered that Jufer was wounded, she started to carry
him outside their bedroom, only to see her husband wrestling with the
appellant. She had the presence of mind to put down her son, pick up a
knife she found on the floor and attempted to stab the accused.
ATTY. GONZALES: Going back to my question, after you saw your
husband wrestling with Albert Sanchez, what did you do if any?
WITNESS: I ran towards to help my husband because I saw Albert
stabbed him on his side and my husband fell down, sir.
xxxx
ATTY. GONZALES: Now while the accused was stabbing your
husband, what did you do next?
WITNESS: I ran and I noticed a knife and I held it, sir.
ATTY. GONZALES: After you were able to hold the knife, what did
you do next?
WITNESS: I approached him while Edgar was sitting down. When I
approached him, he stabbed me (witness pointed to her lower side
of the chest), sir.
xxxx
COURT: According to you, you were able to see a knife?
WITNESS: I noticed the knife on the hallway, Your Honor.
COURT: On your way out of the room?
WITNESS: Yes Your Honor.
COURT: On the floor?
WITNESS: Yes Your Honor.
COURT: After you went out of the room, did you notice if the
accused was still holding a knife?
WITNESS: Yes Your Honor. Because he was stabbing Edgar.
COURT: You picked up that knife from the floor?
WITNESS: I just saw another knife, Your Honor.
COURT: The one you noticed?
WITNESS: I picked it up, Your Honor.
COURT: You went to the accused?
WITNESS: Yes Your Honor.
xxx
COURT: When you were stabbed, you were holding a knife?
WITNESS: Yes, Your Honor.
COURT: You did not fight back?
WITNESS: When I saw the intestines of my husband, I trusted the
knife on him, I thought I was able to stab him, Your Honor.
In fine, Jeane was sufficiently forewarned of the aggression against her
and her family by the appellant. Appellant was on a killing frenzy when
Jeane faced him up close at Jufer’s room. An attack from appellant was
then something not unexpected. Hence, treachery cannot be appreciated
against appellant, although his sex and weapon gave him superiority of
strength as against Jeane. An attack by a man with a deadly weapon upon
an armed and defenseless woman constitutes the circumstance of abuse
of that superiority which his sex and weapon used in the act afforded him,
and from which the woman was unable to defend herself. 30
The next issue is whether or not the aggravating circumstance of evident
premeditation attended the assault on the De Leon family. Both the RTC
and the CA resolved the question in the affirmative.
We agree with their parallel determinations.
For evident premeditation to be considered, the following must be
established: (1) the time when the accused determined (conceived) to
commit the crime; (2) an overt act manifestly indicating that he clung to his
determination to commit the crime (kill his victim); and (3) a sufficient lapse
of time between the decision to commit the crime and the execution thereof
to allow the accused to reflect upon the consequences of his
act.31 Premeditation presupposes a deliberate planning of the crime before
executing it. The execution of the criminal act, in other words, must be
preceded by cool thought and reflection. As here, there must be showing of
a plan or preparation to kill, or proof that the accused meditated and
reflected upon his decision to execute the crime. 32
1avvphi1
In the case at bar, the interplay of the following circumstances indicate the
presence of evident premeditation. First, the night before the stabbing
incidents, appellant went to the De Leon residence to ask for money.
Edgar, with much reluctance, gave appellant only P100. Jeane noted
appellant receiving the money with a hostile expression on his face.
Appellant was no longer working for the De Leon, so he was not required
to go back to the house. But he did return the following morning, January
27, 2006, armed, surreptitiously entering the house and proceeding to
Jufer’s bedroom while everyone was busy having breakfast and preparing
for school.
Second, Jufer told his mother that while relieving himself in the comfort
room, appellant pointed a knife at him. John Ray corroborated the pointing-
of- knife scenario. On the witness box, John Ray testified that on the night
of June 26, 2006, appellant was toying with a knife while talking to him and
Jufer, threatening to kill them both should they report the matter to their
parents.
Last but not least, six different knives, all with blood stains, were found at
the crime scene.33 Two pairs of gloves34 were discovered near Jufer’s body.
These compelling pieces of evidence presuppose planning.
There can be no serious argument that appellant was determined to
commit a crime as early as on the night of January 26, 2006, when he
uttered the threat to kill Jufer at the bathroom. Jelyn and Joshua Ray
testified to seeing appellant holding a knife while talking to
Jufer.35 Appellant had the whole night to contemplate his action and reflect
upon its consequences before he entered the household the following
morning. Finally, the covert manner appellant gained entry in the house
and stabbed the victims showed a careful deliberation of his criminal intent.
As the CA aptly observed, taking into stock the incidents that happened on
the night of January 26, 2006, the fact that he hid in the room of Jufer after
sneaking into the De Leon’s household early the next morning and the real
evidence found in the house, appellant’s "commission of the crime was not
clearly a product of accident, it was evidently a premeditated one."
Clearly then, the presence of the attending circumstances of treachery
and/or evident premeditation qualified the killing of Edgar and Jufer to
murder, which, under Art. 248 of the Revised Penal Code, as amended, is
punishable by reclusion perpetua to death. Article 6336 of the same Code
provides that if the penalty prescribed is composed of two indivisible
penalties, as in the instant case, and there is an aggravating circumstance
the higher penalty should be imposed. Since, evident premeditation can be
considered as an ordinary aggravating circumstance, treachery, by itself,
being sufficient to qualify the killing, the proper imposable penalty – the
higher sanction - is death. However, in view of the enactment of Republic
Act No. 9346,37 prohibiting the imposition of the death penalty, the penalty
for the killing of each of the victim is reduced to reclusion perpetua without
eligibility for parole.38 The penalty of reclusion perpetua thus imposed by
the CA on appellant for each count of murder is correct. So is the award of
PhP 75,000 as civil indemnity ex delicto.39
1avvph!1
The Court, however, modifies the award of moral damages, which is
mandatory in homicide and murder without need of allegation and proof
other than the death of the victim.40 To conform with recent jurisprudence
on heinous crimes where the proper imposable penalty is death, if not for
R.A. 9346, the award of moral damages is increased to PhP 75,000 for
each count of murder.41 The award of exemplary damages in the amount of
PhP 30,000 is additionally in order if, as here, the crime was committed
with an aggravating circumstance, be it generic or qualifying. 42 The Court
thus grants the same to serve as deterrent to serious wrongdoings, as a
vindication of the wanton invasion of the rights of the victims, or
punishment for those guilty of outrageous conduct. 43
As to the stabbings of Jeane and Jelyn, appellant committed frustrated
murder as he inflicted on them mortal wounds which could have had taken
their lives had it not been for the prompt medical intervention, a cause
independent of appellant’s will.

WHEREFORE, the appeal is DENIED. The Decision of the Court of

Appeals dated February 27, 2009 in CA-G.R. CR.-H.C. No. 02902 finding
Albert Sanchez y Galera guilty of two counts of murder and two counts of
frustrated murder and sentencing him to serve prison terms therein defined
without parole is hereby AFFIRMED with the MODIFICATION that
appellant is ordered to pay the heirs of Jufer James and Edgar De Leon
the increased amount of PhP 75,000 as moral damages and the amount of
PhP 30,000 as exemplary damages, respectively, for each count of murder
in Criminal Case Nos. 06-8245-MK and 06-8246-MK.
G.R. No. 179497               January 25, 2012
PEOPLE OF THE PHILIPPINES, Appellee, vs.
RENANDANG MAMARUNCAS, Piagapo, Lanao del Sur; PENDATUM
AMPUAN, Piagapo, Lanao del Sur; Appellants,
BAGINDA PALAO (at large) Alias "Abdul Wahid Sultan", Accused.
DEL CASTILLO, J.:
The assessment of the credibility of witnesses by the trial court is the
center of this controversy. The well-known rule, though subject to certain
recognized exceptions, is that findings of facts and assessment of
credibility of witnesses are matters best left to the trial court. Hence,
"[u]nless certain facts of substance and value were overlooked which, if
considered, might affect the result of the case, the trial court’s assessment
must be respected." 1
Assailed in the present appeal is the June 30, 2006 Decision of the Court
2 
of Appeals (CA) in CA-G.R. CR-H.C. No. 00196 which affirmed with
modification the July 19, 1999 Decision of the Regional Trial Court (RTC)
3 
of Iligan City, Branch 06 in Criminal Case No. 06-6150 convicting
Renandang Mamaruncas (Mamaruncas) and Pendatum Ampuan
(Ampuan) (appellants) of the crime of murder.
On February 9, 1996, the following Information for murder was filed against
4 
Mamaruncas, Baginda Palao (Palao) alias Abdul Wahid Sultan and
Ampuan. 5
That on or about February 1, 1996, in the City of Iligan, Philippines, and
within the jurisdiction of this Honorable Court, the said accused, except for
others whose cases are still under preliminary investigation, conspiring
with and confederating together and mutually helping each other, armed
with deadly weapon, to wit: a caliber .45 pistol, by means of treachery and
evident premeditation, and with intent to kill, did then and there willfully,
unlawfully and feloniously attack, shoot and wound one Baudelio R.
Batoon, thereby inflicting upon him the following physical injuries, to wit:
 Cardio respiratory arrest
 Hypovolemic shock
 Multiple gunshot wound
which caused his death.
Contrary to and in violation of Article 248 of the Revised Penal Code with
the aggravating circumstances of treachery and evident premeditation.
Only Mamaruncas and Ampuan appeared at the scheduled arraignment on
May 20, 1996. Their co-accused, Palao alias Abdul Wahid Sultan (Abdul),
remains at large. Appellants pleaded not guilty and trial proceeded against
6 
them.
Factual Antecedents
The facts of the case, as summarized by the Office of the Solicitor General
(OSG) in its brief and substantiated by the transcripts of stenographic
notes of the proceedings, are as follows:
Around noontime on February 1, 1996, Baudelio Batoon, Richard Batoon,
Juanito Gepayo and a certain "Nito" were working on vehicles inside
Baudelio Batoon’s auto repair shop situated along the highway in Tubod,
Baraas, Iligan City.
Baginda Palao then entered the shop accompanied by appellants
Renandang Mamaruncas and Pendatum Ampuan. Baginda Palao wore
desert camouflage fatigues; while his two (2) companions wore Philippine
Army tropical green fatigues. Baginda Palao showed Baudelio Batoon an
arrest warrant and told the latter he was serving it against Batoon.
The arrival of Baginda Palao’s group prompted Juanito Gepayo and
Richard Batoon to stop their work and observe what was happening.
Baudelio Batoon told Baginda Palao to just wait awhile, as they would
settle the matter after he [Batoon] [finishes] tuning-up an engine he had
been working on.
Baginda Palao reacted by slapping the victim’s stomach and pointing a .45
caliber pistol at him. Baudelio Batoon then tried to grab Palao’s gun,
causing the two of them to grapple for the same. As these two wrestled for
control of the gun, Renandang Mamaruncas, who was behind Baudelio
Batoon, shot from behind Batoon’s right thigh with a .38 cal. homemade
gun. Pendatum Ampuan, who was also standing behind Baudelio Batoon,
followed up by shooting Batoon’s left arm pit with a .45 cal. [homemade]
pistol. Baudelio Batoon fell to the ground and Baginda Palao finished [him
off] with a single .45 cal. shot to the back. Juanito Gepayo and Richard
Batoon saw the entire scene, stunned and unable to do anything. From
their vantage points three (3) to four (4) meters away, these witnesses had
a clear and unobstructed view of the entire incident.
Meanwhile, Police Inspector Graciano Mijares, then Commanding Officer
of the Iligan City PNP Mobile Force Company, was riding a civilian car
along the highway, heading towards Iligan City proper. He was
accompanied by his driver, SPO3 William Yee, and SPO3 George Alejo.
They heard the gunshots emanating from the auto repair shop at Baraas,
prompting Inspector Mijares to order his driver to stop the car. They
alighted and proceeded to the source of the gunshots. At the repair shop,
they saw three (3) men in camouflage gear with guns drawn and pointed at
a person already lying on the ground. Inspector Mijares’ group shouted at
the camouflaged gunmen to stop what they were doing and to drop their
firearms, at the same time announcing that they (Mijares’ group) were
policemen.
The camouflaged gunmen reacted by firing at the policemen. The latter
fired back. During the exchange of gunfire, Baginda Palao ran behind the
Batoon house, while Renandang Mamaruncas and Pendatum Ampuan ran
towards the road and a nearby car. Inspector Mijares was able to hit
Mamaruncas and Ampuan, while SPO3 Yee likewise hit Ampuan.
Mamaruncas, who managed to get inside the car, and Ampuan were then
captured by the policemen. The lawmen also gave chase to Baginda
Palao; but he escaped.
Other responding policemen brought Mamaruncas and Ampuan to the
hospital for treatment and they were eventually placed under detention.
Baudelio Batoon was brought to the hospital by his wife; but he was
pronounced dead on arrival.
Based on the necropsy examination of the victim’s body, Dr. Leonardo
Labanen established that the three (3) gunshot wounds found on the body
of Baudelio Batoon (i.e., at the right thigh, left armpit and back) were
inflicted at close range due to the presence, or at least traces, of
gunpowder burns. 7
Only appellants testified for their defense. Their testimonies, as narrated by
the trial court, are as follows:
Accused Renandang Mamaruncas testified that he is 34 years old,
married, carpenter and a resident of Piagapo, Lanao del Sur. On the
morning of February 1, 1996, he was in Marawi City. He decided to come
down to Iligan City to see a movie. He left Marawi at 7:00 a.m. and upon
arrival at the Tambacan terminal in Iligan City, he went to the house of his
cousin. Later, he changed his mind about going to a movie and returned to
the Tambacan terminal in order to go back to Marawi City. At about 11:30
a.m., Abdul Wahid Sultan arrived with Pendatum Ampuan on board a car
driven by Aminola. Abdul Wahid invited him to go with them because he
will collect some money and afterwards they will have some enjoyment. He
agreed and sat at the rear seat behind the driver. Abdul Wahid was at the
front seat with Pendatum behind at the back seat. They drove to Baraas.
They stopped at a crossing and Abdul Wahid and Pendatum Ampuan
alighted. Before walking away, Abdul Wahid handed to Renandang a .38
cal[.] revolver with instructions to remain in the car and [keep] watch. At
first he refused but Abdul Wahid insisted so he accepted the gun. Abdul
Wahid and Pendatum walked to the shop leaving the rear right door open.
About ten minutes later, he heard three gunshots. He moved to the rear
seat where the door was open and saw policemen, who arrived and
surrounded the car. He placed the gun on the seat and raised his hands as
a sign of surrender. Then with his right hand, he closed the car door. Just
as the door closed, the policemen shot him on the forearm and chest
below the right nipple. He lost consciousness and regained it only at the
hospital.
He further testified that Abdul Wahid Sultan is an old friend. He is also
known as Baginda Palao. Pendatum Ampuan is not known as Abdul Wahid
Sultan.
He also declared that the statement of Juanito Gepayo that only Abdul
Wahid Sultan and Pendatum Ampuan entered the shop and shot Baudelio
Batoon is true and that the testimony of P/Insp. Mijares that he also shot
the victim is not true. He denied any part in the shooting to death of
Baudelio Batoon.
Accused Pendatum Ampuan testified that he is 20 years old, single,
student and a resident of Piagapo, Lanao del Sur. On January 31, 1996 at
about 6:00 a.m., he left Marawi City for Iligan City on board a passenger
Armak jeepney. He alighted at the terminal behind the Gaisano Superstore
and at exactly 7:00 a.m., he entered the store and went to the upper storey
to shop. When he came out, he met a friend name[d] Bessah. Together
they walked to the Maharlika Theater but then Bessah expressed the
intention to go home to Marawi City. He accompanied Bessah to the
Tambacan terminal. Then he proceeded to the house of his Uncle Ali in
Cabaro. (This is a place North of the city and at the opposite side from
Tambacan which is South of the city). He arrived there at noon. He stayed
overnight at his Uncle Ali’s house. At about 9:00 a.m., the following day,
February 1, 1996, he left the house of his uncle. Outside, he met Baginda
Palao, who was looking for a certain Baser, a policeman. He wanted the
latter to help him collect a debt. They went to the terminal at the back of
Gaisano store but did not find Baser. Baginda told him to wait while he will
look for Baser inside the Gaisano store. Baginda returned without having
found Baser and once again he told him to wait while Baginda will look for
a car. A little later, Baginda returned on board a car driven by one Aminola
Basar. They went to the Tambacan terminal but again did not find Baser.
Instead, they saw Renandang Mamaruncas. Baginda invited the latter to
go with them to Baraas to collect a debt. Renandang entered the car and
they proceeded to Baraas. The car stopped at a place near a shop.
Baginda instructed him and Renandang to remain in the car because he
was going out to collect the debt. Baginda left the car and entered the
shop. About ten minutes later, he heard shouting followed by gunfire. He
stepped out of the car to verify and saw Baginda Palao [shoot] the victim.
He retreated to the car as the police led by Capt. Mijares arrived. They
confiscated the car key and arrested them except Baginda Palao who
escaped. They were taken to the hospital due to injuries. In his case, the
sustained wounds when mauled by the children of the victim but in another
breath he admitted that his injury was a gunshot wound when he was
caught in the cross fire as the police shot Renandang Mamaruncas. He
was inside the car when he was hit. He further admitted that Baginda
Palao is known as Abdul Wahid Sultan. He denied shooting Baudelio
Batoon.8
Ruling of the Regional Trial Court
The RTC debunked appellants’ defense of denial and held them guilty as
principals by direct participation in the killing of Baudelio Batoon
(Baudelio). It gave full faith and credence to the evidence of the
prosecution especially on the presence of conspiracy among the
malefactors and rendered a verdict of conviction, thus:
WHEREFORE, the court finds the accused Renandang Mamaruncas and
Pendatum Ampuan GUILTY beyond reasonable doubt as principals of the
crime of murder qualified by treachery defined and penalized in Art. 248 of
the Revised Penal Code as amended, without the presence of any other
aggravating circumstances and hereby sentences each of them to suffer
the penalty of RECLUSION PERPETUA with the corresponding accessory
penalties attached thereto by law and to indemnify the Heirs of Baudelio
Batoon the sums of:
1. ₱10,200,000.00 for and as loss of support;
2. ₱66,904.00 for and as actual damages;
3. ₱50,000.00 as death indemnity and
4. ₱100,000.00 for and as moral damages
without subsidiary imprisonment in case of insolvency.
Cost against the accused.
Having been under preventive detention since February 1, 1996, the period
of such detention shall be credited in full in favor of said accused in the
service of their respective sentences.
SO ORDERED. 9
In view of the Notice of Appeal filed by the appellants, the RTC forwarded
10 
the records of the case to this Court. By Resolution dated January 31,
11 
2000, the Court resolved to accept the appeal. In view thereof, appellants
were required to file their brief. Appellants thus filed their brief on
12 
November 20, 2000 while the OSG submitted the Brief for the Plaintiff-
13 
Appellee on May 2, 2001. Later, however, consonant with this Court’s
14 
pronouncement in People v. Mateo the case was transferred to the CA for
15 
appropriate action and disposition. 16
Ruling of the Court of Appeals
By Decision promulgated on June 30, 2006, the appeals court affirmed
17 
with modification the RTC Decision. Said court ruled that the
inconsistencies in the prosecution witnesses’ testimonies pointed out by
the appellants pertain only to minor and collateral matters which do not
dilute the probative weight of said testimonies. Regarding the erroneous
designation of appellant Ampuan’s name in the Information, the court went
on to hold that such error was only a formal defect and the proper
correction of which was duly made without any objection on the part of the
defense. The CA likewise held that treachery attended the commission of
the crime.
The decretal portion of the Decision reads:
WHEREFORE, premises considered, the Appeal is hereby DISMISSED
and the questioned Judgment dated July 19, 1999 of the Regional Trial
Court is AFFIRMED with MODIFICATION. Appellants Renandang
Mamaruncas and Pendatum Ampuan are found GUILTY beyond
reasonable doubt of murder as defined in Article 248 of the Revised Penal
Code, as amended by Republic Act No. 7659 and are hereby sentenced to
suffer the penalty of reclusion perpetua. The appellants are to pay, jointly
and severally, the heirs of Baudelio Batoon the amount of ₱50,000.00 by
way of civil indemnity, ₱50,000.00 as moral damages, and ₱25,000.00 as
exemplary damages and ₱66,904.00 as actual damages.
SO ORDERED. 18
Disgruntled, appellants are now again before this Court in view of their
Notice of Appeal from the Decision of the CA.
19  to work thereafter is contrary to human nature and experience; (3) while he
By Resolution dated November 19, 2007, this Court notified the parties
20  during the encounter, he failed to identify him in court; and, (4) in his
that they may file their respective supplemental briefs within 30 days from
notice. In their respective manifestations, the parties opted to adopt the
briefs they earlier filed as their supplemental briefs. 21
In their brief, appellants assign the following errors:
i. That the trial court erred in convicting [them] when they should
have been acquitted for failure of the prosecution to prove its case
beyond reasonable doubt; and
ii. The information filed before the trial court was substantially
defective. 22
The basic thrust of appellants’ first assignment of error is the credibility of
the prosecution witnesses. Appellants contend that the trial court anchored
its finding and conclusion on the testimonies of witnesses Juanito Gepayo
(Gepayo), Richard Batoon (Batoon) and P/Sr. Insp. Graciano Mijares
(Mijares), who appear to be inconsistent in their stand and whose
credibility is therefore assailable. They question the prosecution witnesses’
identification of Abdul and Ampuan as one and the same person and aver
that the same only leads to the logical conclusion that said witnesses were
perjured witnesses. They argue that Ampuan failed to grasp the
information read to him as he was arraigned as "Abdul Wahid Sultan alias
Pendatum Ampuan".
On the other hand, the OSG in praying for the affirmance of the appealed
Decision, opines that inconsistencies on minor and collateral matters in the
testimony of a prosecution eyewitness do not affect his credibility. It also
contends that whatever defect the information subject of appellant
Ampuan’s arraignment has had been cured with the latter’s consent during
the trial.
Our Ruling
The appeal lacks merit.
In support of their quest for acquittal, appellants tried to cast doubt on the
credibility of witness Gepayo anchored on the following grounds: (1) there
was serious inconsistency in his testimony on whether he knew Ampuan
before the incident; (2) his actuation of just watching the incident without
giving any assistance to his fallen employer as well as his immediate return
testified that appellant Mamaruncas was one of the wounded suspects
affidavit, he identified Abdul and Ampuan as one and the same person but
later on testified to the contrary.
Credibility of witnesses not affected by minor inconsistencies.
The perceived inconsistency on whether Gepayo knows Ampuan even
before the incident is inconsequential as to discredit the credibility of
Gepayo’s testimony. The inconsistency pointed out by appellants pertains
only to collateral or trivial matters and has no substantial effect on the
nature of the offense. In fact, it even signifies that the witness was neither
coached nor was lying on the witness stand. What matters is that there is
no inconsistency in Gepayo’s complete and vivid narration as far as the
principal occurrence and the positive identification of Ampuan as one of the
principal assailants are concerned. "The Court has held that although
23 
there may be inconsistencies in the testimonies of witnesses on minor
details, they do not impair their credibility where there is consistency in
relating the principal occurrence and positive identification of the
assailant."24
It could be true that Gepayo did not retreat to a safer place during the
shooting incident and did not render assistance to his wounded employer.
To appellants, this reaction is contrary to human nature. We believe
otherwise. This imputed omission, to our mind, does not necessarily
diminish the plausibility of Gepayo’s story let alone destroy his credibility.
To us, his reaction is within the bounds of expected human behavior.
Surely, he was afraid that they might kill him because the malefactors were
then armed with guns. Thus, he would not dare attempt to stop them and
25 
stake his life in the process. At any rate, it is settled "that different people
react differently to a given situation or type of situation, and there is no
standard form of human behavioral response when one is confronted with
a strange or startling or frightful experience. Witnessing a crime is an
unusual experience which elicits different reactions from the witnesses and
for which no clear-cut standard form of behavior can be drawn." 26
The failure of Gepayo to identify Mamaruncas in court does not bolster
appellants’ cause. As the CA correctly pointed out:
x x x We agree with the prosecution’s observation that although he did not
positively identify appellant Mamaruncas as one of the shooters, he was
however, able to point out that there was a third person who accompanied
assailants Palao and Ampuan in approaching the victim during the
incident. This is also bolstered by Insp. Mijares[’] testimony that he saw
three assailants pointing their guns at the victim who was already lying
prostrate on the ground.27
In any event, even without Gepayo’s identification of Mamaruncas, the
unrebutted testimony of another prosecution eyewitness, Batoon, clearly
points to Mamaruncas as one of the assailants. Thus:
Q: After these three persons rather Abdul Wahid together with two
companions, presented the warrant of arrest to your father, what
happened thereafter?
A: They pulled their guns and pointed [them at] my father.
Q: Who pulled out .45 caliber gun [and pointed it at] your father?
A: Abdul Wahid, Sir
Q: And what happened after the .45 pistol [was] pointed [at] your
father?
A: My father tried to [grab] the .45 caliber from Abdul Wahid, Sir.
Q: What happened after?
A: My father was shot by one of his companion[s], Sir.
Q: Who [first shot] your father?
A: (Witness pointing to a person. [W]hen he was asked x x x his
name[,] he answered that he is Renandang Mamaruncas)
xxxx
Q: After this Renandang Mamaruncas shot your father, what
happened thereafter?
A: The other companion fired the next shot (witness pointing to a
person sitting at the bench inside the Courtroom and when he was
asked x x x his name, he answered that he is Pendatum
[Ampuan].)28
Undoubtedly, the testimonies of eyewitnesses Gepayo and Batoon on
material details are straightforward and consistent with each other. They
personally saw appellants at the scene of the crime at the time it was
committed. Their combined declarations established beyond reasonable
doubt the identities of both appellants, along with their co-accused Abdul,
as the perpetrators of the crime.
As to the contention that Gepayo referred to Abdul Wahid Sultan and
Pendatum Ampuan as one and the same person in his affidavit and yet
29 
later on testified to the contrary, this Court finds the same inconsequential
and will not outrightly justify the acquittal of an accused. In a very recent
case, this Court reiterated that as between an affidavit executed outside
30 
the court and a testimony given in open court, the latter almost always
prevails. It emphasized therein that:
Discrepancies between a sworn statement and testimony in court do not
outrightly justify the acquittal of an accused. Such discrepancies do not
necessarily discredit the witness since ex parte affidavits are often
incomplete. They do not purport to contain a complete compendium of the
details of the event narrated by the affiant. Thus, our rulings generally
consider sworn statements taken out of court to be inferior to in court
testimony (citation omitted).
The evidence at hand, moreover, clearly points out that it was the police
officers who supplied the names of the suspects in Gepayo’s affidavit. 31
Any alleged defect in the Information deemed waived.
Anent the second assigned error, appellants aver that the Information filed
before the trial court was substantially defective considering that it accuses
Abdul and Ampuan as one and the same person when in fact they were
identified as different persons. As such, Ampuan was not able to
comprehend the Information read to him.
The Court cannot accord merit to this argument. It is well to note that
appellants failed to raise the issue of the defective Information before the
trial court through a motion for bill of particulars or a motion to quash the
information. Their failure to object to the alleged defect before entering
their pleas of not guilty amounted to a waiver of the defect in the
Information. "Objections as to matters of form or substance in the
[I]nformation cannot be made for the first time on appeal." Records even
32 
show that the Information was accordingly amended during trial to rectify
this alleged defect but appellants did not comment thereon, viz:
FISCAL ROBERTO ALBULARIO:
Per manifestation and admission of this witness, the Information be
amended from [Renandang] Mamaruncas and the word and, it should be
Bagindo [sic] Palao alias Abdul Wahid Sultan and the alias Pendatum
Ampuan be erased as corrected.
COURT:
Any comment from the accused.
ATTY. FIDEL MACAUYAG:
No comment, Your Honor. 33
Treachery correctly appreciated.
From the evidence and as found by the trial court and affirmed by the
appellate court, the facts sufficiently prove that treachery was employed by
appellants. The attack on Baudelio was so swift and unexpected, affording
the hapless, unarmed and unsuspecting victim no opportunity to resist or
defend himself. As ruled by the trial court:
In the above situation, treachery was considered to exist. More so in this
case when the victim was completely without any weapon from the
inception of the assault. At the moment when Pendatum Ampuan and
Renandang Mamaruncas shot him, Baudelio Batoon was not in any
position to defend himself. And when Abdul Wahid shot him while lying
wounded on the ground, he was utterly defenseless. 34
Hence, both lower courts correctly found appellants guilty of murder in view
of the presence of treachery.
Conspiracy was duly proven.
We also sustain the finding of conspiracy. Conspiracy exists "when two or
more persons come to an agreement concerning the commission of a
felony and decide to commit it. Direct proof of previous agreement to
commit a crime is not necessary x x x [as it] may be shown through
circumstantial evidence, deduced from the mode and manner in which the
offense was perpetrated, or inferred from the acts of the accused
themselves when such lead to a joint purpose and design, concerted
action and community of interest." 35
In this case, conspiracy was clearly established. All three accused entered
the shop of Baudelio at the same time. Ampuan shot Baudelio from behind,
hitting the latter at his left armpit while Mamaruncas shot Baudelio on the
thigh. When Baudelio fell to the ground face down, Abdul shot him at the
back. These consecutive acts undoubtedly showed appellants’ unanimity in
design, intent and execution. They performed specific acts with such
closeness and coordination as to unmistakably indicate a common purpose
and design in the commission of the crime.
The Court thus sees no cogent reason to disturb the findings of the RTC
and the CA considering that they are based on existing evidence and
reasonable
conclusions drawn therefrom. It has been held time and again that factual
findings of the trial court, its assessment of the credibility of witnesses and
the probative weight of their testimonies and the conclusions based on
these factual findings are to be given the highest respect. As a rule, the
Court will not weigh anew the evidence already passed on by the trial court
and affirmed by the CA. Though the rule is subject to exceptions, no such
36 
exceptional grounds obtain in this case.
Against the damning evidence adduced by the prosecution, appellants
could only muster mere denial. As ruled in various cases by the Court,
denial, if unsubstantiated by clear and convincing evidence is inherently a
weak defense as it is negative and self-serving. "As between the
categorical testimony that rings of truth on one hand, and a bare denial on
the other, the former is generally held to prevail."
37
The Penalty
Undoubtedly, the crime committed is murder in view of the attending
aggravating circumstance of treachery. Murder, as defined under Article
248 of the Revised Penal Code as amended, is the unlawful killing of a
38 
person which is not parricide or infanticide, provided that treachery, inter
alia, attended the killing. The presence of any one of the enumerated The CA correctly deleted the indemnity for loss of earning capacity
circumstances under the aforesaid Article is enough to qualify a killing as awarded by the trial court.  Such indemnity cannot be awarded in the
lawphi1

murder punishable by reclusion perpetua
to death. Since only the qualifying circumstance of treachery is found to be
present, both the RTC and the CA properly imposed the penalty
of reclusion perpetua pursuant to Article 63 of the Revised Penal Code.
Moreover, Section 3 of Republic Act No. 9346 provides:
39 
Section 3. Persons convicted of offenses punishable
with reclusion perpetua or whose sentences will be reduced to reclusion
perpetua by reason of this Act, shall not be eligible for parole under Act No.
4103 otherwise known as the Indeterminate Sentence Law, as amended.
Pursuant to the above provision, appellants are therefore not eligible for
parole.
Awards of Damages
The Court modifies the award of civil indemnity in the amount of
absence of documentary evidence except where the victim was either self-
employed or a daily wage worker earning less than the minimum wage
under current labor laws.
As testified to by the widow, Florenda Batoon, the victim was earning a
monthly income of ₱20,000.00 and ₱90,000.00 as an auto repair shop and
a six-wheeler truck operator, respectively. The trial court made a
conservative estimate of ₱500.00 a day as the net income from the truck
alone after making reasonable deductions from its operation. Thus, ranged
against the daily minimum wage then prevailing in Region X which is
₱137.00 per day pursuant to Wage Order No. RX-03, this case
undoubtedly does not fall under the exceptions where indemnity for loss of
earning capacity can be given despite the lack of documentary evidence.
The Court sustains the award of exemplary damages in view of the proven
qualifying circumstance of treachery. The CA however awarded exemplary
damages to the heirs of the victim in the amount of ₱25,000.00. To
conform with prevailing jurisprudence, the Court increases this amount to
₱30,000.00. 47

₱50,000.00. In line with prevailing jurisprudence, said award is increased

40 

to ₱75,000.00. Anent the award of moral damages, the CA correctly

imposed the amount of ₱50,000.00. These "awards are mandatory without
41  WHEREFORE, premises considered, the June 30, 2006 Decision of the
need of allegation and proof other than the death of the victim, owing to the Court of Appeals in CA-G.R. CR-H.C. No. 00196 which found appellants
fact of the commission of murder or homicide." 42 Renandang Mamaruncas and Pendatum Ampuan guilty beyond
reasonable doubt of murder is AFFIRMED with further
MODIFICATIONS as follows:
Anent the award of actual damages, the victim’s widow testified that the
family spent a total of ₱66,904.00 relative to the wake and burial of the
victim. However, the claim for said amount is supported merely by a list of 1. Appellants are sentenced to suffer the penalty of reclusion
expenses personally prepared by the widow instead of official receipts. To
43  perpetua without eligibility for parole;
be entitled to an award of actual damages, "it is necessary to prove the
actual amount of loss with a reasonable degree of certainty, premised 2. The award of civil indemnity is increased to ₱75,000.00;
upon competent proof and on the best evidence obtainable x x x." "A list of
44 

expenses cannot replace receipts when the latter should have been issued 3. The award of ₱66,904.00 as actual damages is deleted;
as a matter of course in business transactions." Thus the Court deletes
45 

the lower courts’ award of actual damages. Nonetheless, since entitlement 4. ₱25,000.00 as temperate damages is awarded in lieu of actual
of the same is shown under the facts of the case, temperate damages in damages;
the amount of ₱25,000.00 should be awarded in lieu of actual damages to
46 

the heirs of the victim pursuant to Article 2224 of the Civil Code which
provides that temperate damages "may be recovered when the court finds
that pecuniary loss has been suffered but its amount cannot, from the
nature of the case, be proved with certainty."
5. The award of exemplary damages is increased to ₱30,000.00;
and
6. Appellants are further ordered to pay the heirs of the victim
interest on all damages awarded at the legal rate of 6% per annum
from the date of finality of this judgment.
G.R. No. 197807               April 16, 2012
PEOPLE OF THE PHILIPPINES, vs.
CECILIA LAGMAN y PIRING, Accused-Appellant.
VELASCO, JR., J.:
This is an appeal from the May 14, 2010 Decision of the Court of Appeals
1  banana cue store on Lakandula Street, Tondo, Manila. She was seated
(CA) in CA-G.R. CR-H.C. No. 03289, which affirmed the January 18, 2008
Decision of the Regional Trial Court (RTC), Branch 18 in Manila, in
2  warning, the accused approached her and punched her face several times.
Criminal Case No. 02-200106 for Murder and Criminal Case No. 02-
200107 for Frustrated Murder.
The Facts
Two Informations charged accused Cecilia Lagman as follows:
3 
Criminal Case No. 02-200106
That on or about February 24, 2002, in the City of Manila, Philippines, the
said accused, did then and there willfully, unlawfully and feloniously with
intent to kill, with treachery and evident premeditation, attack, assault and
use personal violence upon the person of Jondel Mari Davantes Santiago,
by then and there stabbing him with a knife with an approximate length of 6
½ inches (blade and handle) hitting his neck and trunk, thereby inflicting
upon said Jondel Mari Davantes Santiago stab wounds which are
necessarily fatal and mortal, which were the direct cause of his death
immediately thereafter.
Criminal Case No. 02-200107
That on or about February 24, 2001, in the City of Manila, Philippines, the
said accused, did then and there willfully, unlawfully and feloniously, with
intent to kill, attack, assault and use personal violence upon the person of
Violeta Sicor y Sapitula, by then and there stabbing her hitting her
buttocks, thereby inflicting upon the said Violeta Sicor y Sapitula mortal
wounds which were necessarily fatal, thus, performing all the acts of
execution which would produce the crime of Homicide as a consequence,
but nevertheless, did not produce it by reason of causes independent of
her will, that is, by the timely and able medical assistance rendered to said
Violeta Sicor y Sapitula which prevented her death.
During her arraignment, the accused gave a negative plea to both charges.
At the trial, the prosecution presented the following witnesses: Donna
Maniego (Maniego), Violeta Sicor (Sicor), Police Officer 3 Ricardo M.
Alateit (PO3 Alateit), and PO3 Ronaldo Samson (PO3 Samson).
On February 24, 2002, at about 1:30 p.m, Maniego was in front of her
alongside her mother, Sicor, inside the sidecar of a motorcycle. Without
The accused turned on Sicor, grabbed her and stabbed her in the middle
of her buttocks with a small knife. Maniego got out of the sidecar and ran to
the barangay hall for help. Upon finding that the barangay chairman was
not around, Maniego went to check on her common-law spouse, Jondel
Santiago (Santiago), at the house of Santiago’s mother. On her way there,
4 
she saw the accused stab Santiago four (4) times from a distance of five
(5) to six (6) meters. The distance between where Maniego was punched
and where Santiago was stabbed was about nine (9) meters. Maniego
5 
then saw the accused flee the scene of the crime carrying a knife and
heading towards Juan Luna Street. Seeing that Santiago was mortally hurt,
Maniego rushed Santiago to Gat Andres Bonifacio Hospital but he later
expired. While Maniego was at the hospital, she saw the accused, who
was being treated after an angry crowd mauled her. Maniego informed the
policeman who was escorting the accused that it was the latter who had
stabbed and killed Santiago. 6
After receiving the information from Maniego, the accused was arrested
and brought to police headquarters. 7
On cross-examination, Maniego testified that she had known the accused
for almost ten years and had a close relationship with her. She stated that
the accused got angry with her when she eloped with Santiago. 8
Sicor, Maniego’s mother, corroborated Maniego’s testimony. She saw the
accused punch Maniego several times while they were inside the sidecar
on February 24, 2002. The accused then grabbed her and stabbed her in
her buttocks with a small knife. She said that after she was stabbed, two
sidecar boys came to her aid and brought her to the hospital. She added
that she was released from the hospital two hours after receiving
treatment.9
PO3 Alateit testified that on the day of the incident, he was riding his
motorcycle on his way home. While he was on the corner of Juan Luna
and Moriones Streets, it was reported to him that a stabbing incident had
taken place. He headed towards an area where a crowd was causing a
commotion. He then saw a woman who looked like a lesbian running
towards him. Her head was bloodied. He handcuffed the injured woman
after he was informed that she had stabbed someone. At the time of her
arrest, a sharp object fell from the woman’s waist. He confiscated the item
and brought the woman to the police station and to Gat Andres Bonifacio
Hospital. He identified the woman as the accused. 10
Both the prosecution and the defense stipulated that Senior Police Officer
2 Edison Bertoldo was the police investigator in the case against the
accused and that he prepared the following:
(1) Sworn Statement of Maniego, Exhibit "A";
(2) Affidavit of Apprehension of PO3 Alateit, Exhibit "C";
(3) Booking Sheet and Arrest Report, Exhibit "E";
(4) Crime Report dated February 25, 2002, Exhibits "F," "F-1" and "F-
2"; and
(5) Request for Laboratory Examination dated February 27, 2002,
Exhibit "F-3."11
The last witness for the prosecution, PO3 Samson, testified that on the
date of the incident, he was assigned at the Western Police District Crime
Laboratory Division. He presented before the court the sharp object used
in stabbing the victim (Exhibit "M") and the Request for Laboratory
Examination (Exhibit "M-1").12
For their part, the defense offered the testimonies of the accused and Dr.
Mario Lato.
Chiefly relying on denial as her defense, the accused claimed that on the
date of the stabbing incident, she confronted Maniego and asked her if it
was true that she had been spreading the rumor that the accused was
insane. Maniego answered in the affirmative. Angered, the accused
slapped Maniego and left, leaving Santiago, Sicor, and Maniego in pursuit.
Santiago then hit her with a lead pipe. Since she needed medical treatment
after the attack, she was brought to Gat Andres Bonifacio Medical Hospital
by her mother and a barangay kagawad. 13
At the police station, the accused denied killing Santiago. She averred that
nothing was found on her body when she was frisked. She said that the
knife recovered by PO3 Alateit was not hers and that there were other
people in the area where it was found. She added that she had an
argument only with Maniego, not with Sicor or Santiago. 14
Dr. Mario Lato testified that on February 24, 2002, he treated the accused,
who had a laceration on the head which was possibly caused by a hard
object such as a pipe. He said that the accused sustained a two-centimeter
laceration in her mid-pectoral area.
15
Ruling of the Trial Court
On January 18, 2008, the RTC convicted the accused of Murder in Crim.
Case No. 02-200106 and Less Serious Physical Injuries in Crim. Case No.
02-200107. The dispositive portion of the RTC Decision reads:
WHEREFORE, this court finds accused Cecilia Lagman y Pring guilty of
Murder in Crim. Case No. 02-200106. She is sentenced to suffer reclusion
perpetua and to pay the heirs of the victim Jondel Lari Santiago, the
amount of P50,000 as civil indemnity. In Crim. Case No. 02-200107, this
court finds same accused guilty of Less Serious Physical Injuries. She is
sentenced to suffer six (6) months of arresto mayor and to pay Violeta
Sicor the amount of P25,000 as temperate damages. SO ORDERED. 16
Ruling of the Appellate Court
On appeal, accused-appellant faulted the trial court for not considering the
inconsistencies and contradictions in the testimony of prosecution witness
Maniego. She also averred that the same witness’ credibility was
improperly appreciated, as the judge who heard the case was different
from the one who rendered the decision.
The CA affirmed the findings of the RTC. The appellate court ruled that the
totality of the prosecution’s evidence showed that accused-appellant’s guilt
was proved beyond reasonable doubt. It added that accused-appellant
failed to show any ill motive on the part of the prosecution witnesses to
falsely testify against her. The dispositive portion of the May 14, 2010 CA
Decision reads:
WHEREFORE, premises considered, the Decision dated January 18, 2008
of the Regional Trial Court of Manila, Branch 18 in Criminal Case Nos. 02-
200106 and 02200107 is AFFIRMED. 17
Hence, We have this appeal.
The Issues
I Whether the CA erred in finding accused-appellant guilty beyond
reasonable doubt
II Whether the CA erred in giving credence to the testimony of the
prosecution’s witness despite patent inconsistencies
III Whether the CA erred in finding that the killing of the victim was attended
by treachery
The defense reiterates previous arguments calling for an acquittal of
accused-appellant.  It casts doubt on Maniego’s testimony, claiming that it
1âwphi1
has irreconcilable inconsistencies which affected her credibility.
The defense also calls attention to the fact that Maniego testified before
Judge Romulo A. Lopez, while the Decision was penned by Judge Myra
Garcia-Fernandez. It is further contended that Maniego did not actually
18 
witness Santiago being stabbed, because she admitted in court that she
found out that Santiago had been stabbed when she was already at the
hospital attending to her injured mother.
Moreover, it is pointed out by the defense that the victim was 5’8" in height
and of average built while accused-appellant is only 4’11". It is, thus,
incredible that she could have inflicted fatal wounds on the victim.
Lastly, the defense argues that the prosecution was unable to prove that
the killing of Santiago was accompanied by treachery. Assuming that
accused-appellant did stab the victim, the defense claims that it was not
proved that she deliberately and consciously adopted her mode of attack.
The encounter was even preceded by a confrontation between accused-
appellant and Maniego, and it was Sicor and Santiago who followed
accused-appellant after the confrontation. The stabbing incident should
have been considered as having occurred in the spur of the moment.
Our Ruling
We deny the appeal, but modify the CA Decision.
Elements of Murder Established
The elements of murder that the prosecution must establish are (1) that a
person was killed; (2) that the accused killed him or her; (3) that the killing
was attended by any of the qualifying circumstances mentioned in Article
248 of the Revised Penal Code (RPC); and (4) that the killing is not
parricide or infanticide.
19
The prosecution was able to clearly establish that Santiago was killed and
that it was accused-appellant who killed him as there was an eyewitness to
the crime. Santiago’s killing was attended by the qualifying circumstance of
treachery as testified to by the prosecution eyewitness, Maniego.
Paragraph 16, Art. 14 of the RPC defines treachery as the direct
employment of means, methods, or forms in the execution of the crime
against persons which tend directly and specially to insure its execution,
without risk to the offender arising from the defense which the offended
party might make.
Maniego’s testimony proved the presence of treachery in this case, as
follows:
Q What did you do after Cecilia Lagman punched you in your face?
A I went outside of the side car x x x, and I went to the barangay hall to
ask help x x x.
Q And what happened after that? x x x x
A ‘Papauwi na po ako sa bahay ng biyenan ko sakto po ng pagpunta
ko ho doon nasalubong po ni Cecilia Lagman si Jondel Mari wala hong
sabi sabi inundayan po niya ng saksak si Jondel Mari.’ (When I went
home to the house of my mother-in-law because the barangay
chairman was not in the barangay hall Jondel Mari meet [sic] Cecilia
Lagman and without any word Cecilia Lagman stabbed Jondel Mari.)
Q And in what place was that where Cecilia Lagman suddenly stabbed
Jondel Mari Santiago?
A At Asuncion, Lakandula [in Tondo Manila] x x x.
Q When you saw Cecilia Lagman stabbed Jondel Santiago how far
were you?
A (Witness demonstrating 5 to 6 meters away).
 Q What was Jondel Santiago doing when he was stabbed by Cecilia
Lagman?
A He was lighting a cigarette x x x.
Q And what was the reaction of Jondel Santiago when he was stabbed
by Cecilia Lagman?
A ‘Nabigla po kasi hindi naman niya alam na sasaksakin siya eh.’ [He
was shocked because he did not know he was going to be stabbed.]
Q What part of the body of Jondel Santiago was hit when he was
stabbed?
A One at the chest and two at the back and one at the neck. x x x
Q x x x [I]f the person who boxed you on the face is in court, will you be
able to identify her?
A Yes x x x.
x x x [Witness pointing to a woman, Cecilia Lagman]
Q x x x [I]f the person whom you saw stabbed Jondel Santiago four
times is in court will you be able to identify him or her?
A ‘Siya rin po." [She is the same person.] 20
In order for treachery to be properly appreciated, two elements must be
present: (1) at the time of the attack, the victim was not in a position to
defend himself; and (2) the accused consciously and deliberately adopted
the particular means, methods, or forms of attack employed by him. The
21 
essence of treachery is that the attack is deliberate and without warning,
done in a swift and unexpected way, affording the hapless, unarmed and
unsuspecting victim no chance to resist or escape. These elements were
22 
present when accused-appellant stabbed Santiago. We quote with
approval the appellate court’s finding on the presence of treachery:
In the case at bar, the victim was caught off guard when appellant, without
warning, stabbed him four times successively leaving the latter no chance
at all to evade the knife thrusts and defend himself from appellant’s
onslaught. Thus, there is no denying that appellant’s act of suddenly
stabbing the victim leaving the latter no room for defense is a clear case of
treachery. x x x
23 
Regardless of the alleged disparity in height between accused-appellant
and the victim, We affirm the finding of the trial court, as affirmed by the
CA, that accused-appellant’s method of inflicting harm ensured that she
would fatally wound Santiago without risk to herself. The perceived
advantage of the victim in terms of height was of no use to him as
accused-appellant employed treachery in attacking him. He was not
afforded a means to defend himself as accused-appellant suddenly started
stabbing him repeatedly with an improvised knife.
Finally, the killing of Santiago was neither parricide nor homicide.
Credibility of Prosecution Witnesses
We see no reason to overturn the findings on the credibility of the
prosecution witnesses. It has been long settled that when the issues raised
concern the credibility of a witness, the trial court’s findings of fact, its
calibration of testimonies, and its assessment of the testimonies’ probative
weight, including its conclusions based on said findings, are generally
given conclusive effect. It is acknowledged that the trial court has the
unique opportunity to observe the demeanor of witnesses and is in the best
position to discern whether they are telling the truth. Furthermore,
24 
accused-appellant failed to show why Maniego and her mother would
falsely accuse her of committing a terrible crime. Maniego was the
common-law spouse of the victim and she would naturally want to seek
justice for his death as well as the injury sustained by her mother.
An examination of the records shows that there is no truth to the allegation
of accused-appellant that Maniego did not witness the stabbing of
Santiago. She clearly testified that accused-appellant first stabbed
Santiago on the chest, then on the side of his neck, then twice on his
back.25
On the other allegation of accused-appellant, We have earlier held that the
fact that the judge who rendered judgment was not the one who heard the
witnesses does not adversely affect the validity of conviction. That the trial
26 
judge who rendered judgment was not the one who had the occasion to
observe the demeanor of the witnesses during trial but merely relied on the
records of the case does not render the judgment erroneous, especially
where the evidence on record is sufficient to support its conclusion. 27
Alibi as a Defense
The defense of alibi is likewise unconvincing. Accused-appellant was
positively identified by eyewitnesses. She herself admitted that she
confronted one of the eyewitnesses, Maniego, moments before she was
seen attacking Maniego, Santiago and Sicor. It is well-settled that alibi
cannot be sustained where it is not only without credible corroboration but
also does not, on its face, demonstrate the physical impossibility of the
presence of the accused at the place of the crime or in its immediate
vicinity at the time of its commission. In accused-appellant’s case, there is
28 
no corroborative evidence of her alibi or proof of physical impossibility of
her being at the scene of the incident to shore up her defense.
Elements of Less Serious Physical Injuries Not Established
We modify the conviction of accused-appellant with regard to Criminal
Case No. 02-200107. Originally charged with frustrated murder, accused-
appellant was convicted of less serious physical injuries in Criminal Case
No. 02-200107. The RTC reasoned that the stabbing injury sustained by
Sicor was not on a vital part of the body and she was able to leave the
hospital two hours after receiving medical treatment. The RTC properly
ruled that the crime committed was not frustrated murder as it was not
shown that there was intent to kill. However, while the RTC correctly ruled
29 
that the accused-appellant is not guilty of frustrated murder in Criminal
Case No. 02-200107, the records do not support a conviction for less
serious physical injuries.
Art. 265 of the RPC provides, "Any person who shall inflict upon another
physical injuries not described [as serious physical injuries] but which shall
incapacitate the offended party for labor for ten (10) days or more, or shall
require medical attendance for the same period, shall be guilty of less
serious physical injuries and shall suffer the penalty of arresto mayor."
Nothing in the records, however, supports the finding that Sicor was
incapacitated for labor for ten (10) days or more or that she required
medical attention for the same period. After the wound on her buttocks was
treated, Sicor was released two hours after she was admitted to the
hospital. She later returned to the hospital for the removal of the suture on
30 
her wound, according to the RTC, "after a certain period of time." The
31 
Medico-Legal Report on Sicor (Exhibit "H") does not indicate how many
days of medical treatment her injury would need. Sicor, however, testified
32 
that she lost two (2) days of work on account of the injury she
sustained. The testimony of her attending physician, Dr. Christian Dennis
33 
Cendeno, on the other hand, was dispensed with following a stipulation by
the parties on his testimony. The prosecution was, therefore, unable to
34 
establish that the injury sustained by Sicor falls under less serious physical
injuries absent the requirement that her injury required medical attention
for 10 days or incapacitated her for the same period.
The Court can, thus, only convict accused-appellant of slight physical
injuries. Under par. 1, Art. 266 of the RPC, the penalty for slight physical
injuries is arresto menor "when the offender has inflicted physical injuries
which shall incapacitate the offended party for labor from one to nine days,
or shall require medical attendance during the same period." There being
no modifying circumstances to be appreciated, and in accordance with par.
1 of Art. 64, accused-appellant should be meted a penalty of imprisonment
35 
of arresto menor in its medium period, which has a duration of eleven (11)
to twenty (20) days under Art. 76 of the RPC.
Pecuniary Liability
The CA affirmed the award of PhP 50,000 as civil indemnity in Criminal
Case No. 02-200106 and PhP 25,000 as temperate damages in Criminal
Case No. 02-200106.
People v. Combate reiterated the rule on civil indemnity and damages:
36 
When death occurs due to a crime, the following may be recovered: (1)
civil indemnity ex delicto for the death of the victim; (2) actual or
compensatory damages; (3) moral damages; (4) exemplary damages; (5)
attorney’s fees and expenses of litigation; and (6) interest, in proper cases.
In People v. Tubongbanua, interest at the rate of six percent (6%) was
ordered to be applied on the award of damages. This rule would be
subsequently applied by the Court in several cases such as Mendoza v.
People, People v. Buban, People v. Guevarra, and People v. Regalario.
Thus, we likewise adopt this rule in the instant case. Interest of six percent
(6%) per annum should be imposed on the award of civil indemnity and all
damages, i.e., actual or compensatory damages, moral damages and
exemplary damages, from the date of finality of judgment until fully paid.
In accordance with the rules cited above, We modify the award of
damages. In line with prevailing jurisprudence, the award of civil indemnity
37 
ex delicto of PhP 50,000 in favor of the heirs of Santiago is in order. Moral
damages of PhP 50,000 and PhP 30,000 in exemplary damages, with an
interest of six percent (6%) per annum, are also proper. 38
We delete the award of PhP 25,000 in temperate damages to Sicor, since
only slight physical injuries were committed and no proof of medical
expenses was presented during trial.
WHEREFORE, the appeal is DENIED. The CA Decision in CA-G.R. CR-
H.C. No. 03289 finding accused-appellant guilty of Murder in Criminal
Case No. 02-200106 is AFFIRMED with MODIFICATIONS. Accused-
appellant is ordered to indemnify the heirs of the late Jondel Mari Davantes
Santiago the sum of PhP 50,000 as civil indemnity, PhP 50,000 as moral
damages, PhP 30,000 as exemplary damages, and interest on all
damages at the rate of six percent (6%) per annum from the finality of
judgment until fully paid. With respect to Criminal Case No. 02-200107,
accused-appellant is convicted of SLIGHT PHYSICAL INJURIES and is
sentenced to twenty (20) days of arresto menor. The award of temperate
damages is DELETED.
G.R. No. 179044               December 6, 2010
PEOPLE OF THE PHILIPPINES, Appellee, vs.
RODRIGuez LUCERO y PAW-AS alias "Kikit," Appellant.
DEL CASTILLO, J.:
On appeal is the November 29, 2006 Decision1 of the Court of Appeals
(CA) in CA-G.R. CR-HC No. 00340 which affirmed with modifications the
July 19, 2002 Decision2 of the Regional Trial Court of Bislig City, Surigao
del Sur, Branch 29, finding appellant Rodriguez Lucero y Paw-as guilty
beyond reasonable doubt of the crime of murder.
Factual Antecedents
On October 20, 1998, an Information 3 was filed charging appellant with the
crime of murder committed as follows:
That on or about 1:30 [a.m.] of July 21, 1998, at Purok 6, Barangay Sta.
Cruz, Municipality of Tagbina, Province of Surigao del Sur, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused
with treachery and evident premeditation and with intent to kill, did then
and there wil[l]fully, unlawfully and feloniously attack, assault and hack one
Edgar Aydaon, a Barangay Kagawad, with the use of a bolo, thereby
hitting the victim[']s head, which wound and injury caused the
instantaneous death of the victim, to the damage and prejudice of the heirs
of said Aydaon. CONTRARY TO LAW x x x
Appellant pleaded not guilty to the charge. Trial thereafter ensued.
Version of the Prosecution
The prosecution presented Leonito Maceda (Maceda), Rafael Ampis and
SPO1 Daniel Barrios as witnesses. Based on their combined testimonies,
the prosecution established the following:
At about midnight of July 20, 1998, Maceda went out of his house to get
"kasla," a medicinal herb for his sick child. After getting the herb, he went
to a waiting shed located about 10 meters away from his house as he saw
a certain Linda Basalo (Basalo) thereat waiting for a ride. While at the
waiting shed, the victim Edgar Aydaon passed by. But after a while, the
victim returned and helped Basalo load the vegetables in the jeepney.
After the jeepney left, appellant arrived and called out the victim. Appellant
pleaded that he be allowed by the victim to go with him as he (appellant)
was allegedly being pursued by a certain Pandeta. The victim acceded to
the request and even invited appellant to sleep in his house. However,
after walking a distance of about 10 meters, appellant suddenly hacked the
victim at the left side of his head causing the victim to fall to the ground. In
spite of the fact that the victim was already lying on the ground, appellant
further stabbed him on his waist. Thereafter, appellant left the premises.
Version of the Defense
The defense presented appellant as its lone witness who could only offer
denial and alibi. He claimed that on July 21, 1998, he was at his farm
located at Nyholm, Agusan del Sur. He alleged that he had no prior
disagreement with the victim or any of the prosecution witnesses. Hence,
he could not understand why he was being implicated in the crime.
Ruling of the Regional Trial Court
The trial court found appellant guilty of murder qualified by treachery. It
noted that appellant "beguiled [the victim by] pleading for help" 4 but after
walking a distance of about 10 meters, suddenly hacked him on the head
leaving him with no opportunity to defend himself.
The trial court however found that the qualifying circumstance of evident
premeditation was not present. It noted that the prosecution failed to prove
"(1) the time when the offender determined to commit the crime; (2) an act
manifestly indicating that the culprit clung to his determination; and (3)
sufficient lapse of time between the determination and execution to allow
him to reflect upon the consequences of his act."5
The trial court disregarded appellant’s denial and alibi for being
uncorroborated. Besides, appellant himself admitted that the distance
between his farm and the scene of the crime is only 10 kilometers and
could be traversed by motorcycle in one hour or even less. Thus, he failed
to prove that it was physically impossible for him to be at the crime scene
at the time it was committed. Besides, appellant’s alibi could not stand
scrutiny vis-à-vis the testimony of Maceda positively identifying appellant
as the author of the crime.
Finally, the trial court found the inconsistencies in the testimony of Maceda
only minor and trivial as they did not touch on the elements of the crime.
The dispositive portion of the Decision of the trial court reads:
Wherefore, finding the accused RODRIGUEZ LUCERO Y PAW-AS alias
"KIKIT" guilty beyond reasonable doubt of the crime of MURDER defined
and penalized under Article 248 of the Revised Penal Code, as amended
by Republic Act No. 7659, this Court hereby sentences him to suffer the
penalty of Reclusion Perpetua with all the accessory penalties provided for
under Article 41 of the Revised Penal Code.
To pay the heirs of the victim the sum of fifty thousand pesos (₱50,000.00)
as [civil] indemnity and ten thousand pesos (₱10,000.00) as exemplary
damages. To pay the costs.
The accused shall serve his sentence at the National Penitentiary now
New Bilibid Prisons, Muntinlupa City. SO ORDERED. 6
Ruling of the Court of Appeals
The CA affirmed with modifications the Decision of the trial court, thus:
FOR THE REASONS STATED, the appealed Decision convicting
RODRIGUEZ LUCERO Y PAW-AS alias "[K]ikit of Murder is hereby
AFFIRMED with the MODIFICATION[S] that he is ORDERED to pay the
heirs of the victim ₱50,000.00 as indemnity, ₱25,000.00 as exemplary
damages, ₱3,000.00 as actual damages and ₱50,000.00 as moral
damages. Costs de officio. SO ORDERED.7
As did the trial court, the appellate court found the alleged inconsistencies
adverted to by the appellant minor and did not impair the credibility of
Maceda. According to the CA, there was no inconsistency in "the narration
of the principal occurrence [or] the positive identification of the
assailant."8 Further, "minor inconsistencies, far from detracting from the
veracity of the testimony, even enhance the credibility of the witnesses, for
they remove any suspicion that the testimony was contrived or rehearsed." 9
The appellate court also affirmed the findings of the trial court that
treachery attended the commission of the crime. According to the CA,
treachery was –
clearly demonstrated when appellant suddenly attacked and stabbed the
victim who offered the accused to sleep in his house and having
conversation at that time, with absolutely no inkling of the impending
danger as the accused suddenly and without warning, hacked and stabbed
the victim, giving the victim no x x x chance to defend himself. x x x10
Hence, this appeal.
On October 15, 2007, we notified both parties that they may file their
respective supplemental briefs. However, in separate manifestations, both
parties opted not to file their briefs.
Assignment of Errors
Appellant raises the following assignment of errors:
I. THE COURT A QUO ERRED IN GIVING FULL WEIGHT AND
CREDENCE TO THE INCONSISTENT TESTIMONY OF
PROSECUTION WITNESS LEONITO MACEDA AND IN
DISREGARDING THE DEFENSE INTERPOSED BY THE ACCUSED-
APPELLANT.
II. THE COURT A QUO ERRED IN CONVICTING ACCUSED-
APPELLANT OF THE CRIME CHARGED DESPITE THE FACT THAT
HIS GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT. 11
Our Ruling
The appeal lacks merit.
The defense basically assails the credibility of prosecution eyewitness
Maceda. As it did before the CA, the defense claims that credence should
not have been given to the testimony of prosecution eyewitness Maceda
as it bore several inconsistencies.
We find this contention untenable. Basic is the rule that the Supreme Court
accords great respect and even finality to the findings of credibility of the
trial court, more so if the same were affirmed by the CA, as in this case.
Besides, upon our review of the records of this case, we find that both the
trial court and the CA did not overlook or misunderstand any substance or
fact which would have materially affected the outcome of this case.
Our ruling in People v. Elarcosa12 is instructive, thus:
In this regard, it should be noted that questions concerning the credibility of
a witness are best addressed to the sound discretion of the trial court,
since it is the latter which is in the best position to observe the demeanor
and bodily movements of a witness. This becomes all the more compelling
when the appellate court affirms the findings of the trial court. Thus, we
generally defer to the trial court’s assessment, unless there is a clear
showing that such findings are tainted with arbitrariness, capriciousness or
palpable error. x x x
Moreover, the alleged inconsistencies referred to by the defense indeed
refer to minor details which are very inconsequential to the outcome of the
case. According to the defense, "Maceda first testified that when the victim
was about to leave, [appellant] came out and mauled the victim. However,
he contradicted himself when he further testified that when [appellant]
came out, the latter conversed with the victim and it was only after the
victim and the [appellant] reached the distance of ten (10) meters that he
saw the appellant [hack] the victim."13
This contention was satisfactorily debunked by the prosecution. We thus
agree that whether the appellant immediately mauled the victim or he
mauled him only after walking a distance of 10 meters does not deviate
from the fact that appellant did indeed maul and hack the victim. Moreover,
the prosecution correctly argued that "appellant quoted x x x Maceda’s
testimony separately and took it out of context."14 The records show that
after making a general statement that appellant came out and mauled the
victim, Maceda further explained when pressed for details that appellant
hacked the victim after they conversed and walked the distance of about
10 meters.15
The defense also pointed out that Maceda was inconsistent whether he got
the "kasla" in the morning or evening of July 20, 1998. However, whether
Maceda got the "kasla" in the morning or evening has no bearing with the
crime of murder committed by the appellant against the victim. The fact
remains that Maceda positively identified appellant as the person who
hacked the victim on the head and stabbed him on the waist. No ill motive
could be attributed to Maceda for testifying against the appellant. In fact,
appellant even admitted that he had no quarrel or previous
misunderstanding or disagreement with Maceda. "Pertinently, the absence
of such improper motive on the part of the witness for the prosecution
strongly tends to sustain the conclusion that no such improper motive
exists and that [his] testimony is worthy of full faith and credit. Indeed,
there is no reason to deviate from the factual findings of the trial court." 16
Finally, we agree with both the trial court and the CA that treachery
attended the commission of the crime. Records show that appellant lulled
the victim into believing that he was being pursued by somebody. Believing
in the tale being spun by the appellant, the victim even offered appellant
the security and protection of his house. However, appellant reciprocated
the victim’s trust and hospitality by suddenly hacking him on the head and
stabbing him on the waist. "The settled rule is that treachery can exist even
if the attack is frontal, as long as the attack is sudden and unexpected,
giving the victim no opportunity to repel it or to defend himself. What is
decisive is that the execution of the attack, without the slightest
provocation from an unarmed victim, made it impossible for the victim to
defend himself or to retaliate."17
1avvphi1
The Penalty
Article 248 of the Revised Penal Code provides for the penalty of reclusion
perpetua to death for the crime of murder. If no aggravating or mitigating
circumstance attended the commission of the crime, the imposable penalty
is reclusion perpetua. In this case, the qualifying circumstances of
treachery and evident premeditation were both alleged in the Information.
However, only the qualifying circumstance of treachery was found to have
attended the commission of the crime which nevertheless qualified the
killing to murder. There being no other aggravating or mitigating
circumstances, both the trial court and the CA therefore correctly imposed
upon the appellant the penalty of reclusion perpetua.
The Damages
"Based on Article 100 of the Revised Penal Code, every person criminally
liable for a felony is also civilly liable. Thus, when death occurs due to a
crime, the following damages may be awarded: (1) civil indemnity ex
delicto for the death of the victim; (2) actual or compensatory damages; (3)
moral damages; (4) exemplary damages; (5) attorney’s fees and expenses
of litigation; and (6) interest, in proper cases. In cases of murder and
homicide, civil indemnity of PhP75,000.00 and moral damages of
PhP50,000.00 are awarded automatically. Indeed, such awards are
mandatory without need of allegation and proof other than the death of the
victim, owing to the fact of the commission of murder or homicide." 18

In the instant case, we note that the CA awarded the amounts of

₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages, ₱25,000.00
as exemplary damages, and ₱3,000.00 as actual damages. Thus,
pursuant to prevailing jurisprudence,19 the award of ₱50,000.00 as civil
indemnity must be increased to ₱75,000.00. The award of ₱25,000.00 as
exemplary damages is likewise increased to ₱30,000.00.

Anent the actual damages, we note that the CA awarded ₱3,000.00

representing the amount spent for the embalming as shown by the receipt.
However, the prosecution also presented a list of expenses such as those
spent for the coffin, etc., which were not duly covered by receipt. "Under
Article 2224 of the Civil Code, temperate damages may be recovered, as it
cannot be denied that the heirs of the victims suffered pecuniary loss
although the exact amount was not proved." 20 "The award of ₱25,000.00 as
temperate damages in x x x murder cases is proper when no evidence of
burial and funeral expenses is presented in the trial court." 21 Thus, we
delete the award of ₱3,000.00 as actual damages given by the CA. In lieu
thereof, we hereby award to the heirs of the victim the amount of
₱25,000.00 as temperate damages.

WHEREFORE, the appeal is DENIED. The November 29, 2006 Decision

of the Court of Appeals in CA-G.R. CR-HC No. 00340 which affirmed with
modifications the July 19, 2002 Decision of the Regional Trial Court of
Bislig City, Surigao del Sur, Branch 29, finding appellant Rodriguez Lucero
y Paw-as guilty beyond reasonable doubt of the crime of murder, is
AFFIRMED with MODIFICATIONS that the awards of civil indemnity is
increased to ₱75,000.00, exemplary damages is increased to ₱30,000.00;
the award of ₱3,000.00 as actual damages is deleted and in lieu thereof,
appellant is ordered to pay the heirs of the victim the amount of
₱25,000.00 as temperate damages.
G.R. No. 187048               January 23, 2013
PEOPLE OF THE PHILIPPINES, vs.
BENJAMIN PETELUNA AND ABUNDIO BINONDO, Accused-Appellants.
PEREZ, J.:
We review the 11 July 2007 Decision1 of the Court of Appeals, which
affirmed with modification the trial court's conviction of appellants Benjamin
Peteluna (Benjamin) and Abundio Binondo (Abundio) for the murder of an
elderly man named Pablo Estomo (Pablo).2
The Facts
On 11 June 1996, appellants were charged with the murder of Pablo
before the Regional Trial Court of Cebu. 3 On arraignment, appellants
pleaded not guilty.4 Trial proceeded with the prosecution and the defense
presenting their respective witnesses. The prosecution presented sixteen-
year old Romeo Pialago (Romeo),5 who was with Pablo at the time of the
incident, and Dr. Dympna Aguilar (Dr. Aguilar), 6 Municipal Health Officer of
the Barili District Hospital. On the other hand, the appellants
themselves7 and the father of appellant Abundio, Teofilo Binondo
(Teofilo),8 appeared for the defense.
The evidence for the prosecution shows that on 30 April 1996, Romeo and
Pablo watched a cockfight during the fiesta of Barangay Lamak, Barili,
Cebu. On their way home at about five o’clock in the afternoon, Pablo,
followed by the appellants, with the young Romeo behind them, walked
along the road of Sitio Liki, Barangay Mayana, Barili, Cebu. Romeo, who
knew appellants because they used to pass by his house, noticed them
whispering to each other. He saw the appellants place their arms on
Pablo’s shoulder, after which they struck Pablo with stones each of which
was as big as the size of a fist. Pablo pleaded the appellants to stop but
they did not. When Pablo fell to the ground, Benjamin smashed his head
with a stone as big as Pablo’s head. Afterwards, appellants dragged him
downhill towards the farm of one Efren Torion (Efren) in Sitio Liki. Romeo
did not know what happened next because he ran to seek help. He went to
the house of Espiridion Presbitero (Pideon), the barangay captain of
Mayana. Pideon, in turn, coordinated with a certain Simo, the barangay
captain of Bagacay. Romeo escorted Pideon and Simo to the place where
the incident took place but Pablo was no longer there. They went to the
house of appellant Abundio at Barangay Cangundo but the appellant was
not there. The two captains then proceeded to the house of appellant
Benjamin, who accompanied them to the farm of Efren. There they found
the body of Pablo, which Dr. Aguilar later examined.
Before the court, Dr. Aguilar testified that Pablo sustained eleven (11)
Wounds9 caused by blunt instrument(s) like stone(s). There were blood
clots in the cranium and meninges. The death, according to her autopsy
report, which she identified in court to have been prepared and signed by
her, was caused by "cerebral hemorrhage due to laceration and contusion
of the head."10
The defense, on the other hand, presented different versions for each of
the appellants.
Appellant Benjamin, testified on his behalf. While he admitted of having
been in the hilly portion of the road at Sitio Liki at around 2:30 in the
afternoon of 30 April 1996, he denied any participation in the commission
of the crime. Instead, he alleged that on his way home from the fiesta, he
saw Pablo and appellant Abundio boxing each other beside the road fifteen
(15) fathoms away from him. Appellant Benjamin did not see how the fight
ended because he proceeded home. It was around 4:00 o’clock in the
afternoon when he got to his house. Fifteen (15) minutes later, appellant
Abundio came and told him that it was Pablo who boxed him first and that
he should not tell anyone about the incident. The appellants spent the night
at the Abundios. The following morning, the barangay officials were there
looking for Pablo. Appellant Benjamin, who was still in the house, told the
barangay captain that he witnessed the fight between appellant Abundio
and Pablo. Appellant Abundio fled but was nevertheless apprehended in
the afternoon of the same day.
On the other hand, appellant Abundio raised the defense of alibi. His father
Teofilo testified to the effect that appellant Abundio and his other children
were in the farm of one Tonying Paras at the time the crime was
committed. They had breakfast in their house, which is approximately one
kilometer away from the farm. Then they went back to the farm and stayed
there until 6:00 o’clock in the afternoon. By 8:00 o’clock in the evening,
they retired for the night. It was only the following morning that he learned
of the death of Pablo whose body was found in the creek around two
kilometers from his house, and that his son appellant Abundio was
identified as one of the suspects.
Appellant Abundio corroborated his father’s testimony stating that he was
helping out in the farm at the time the crime was committed. He only
learned that Pablo had been killed the day after the incident.
After trial, both appellants were convicted of murder. The dispositive
portion of the decision of the trial court reads:
JUDGMENT is therefore rendered declaring the two (2) accused, Benjamin
Peteluna and Abundio Binondo, GUILTY of the crime of MURDER and
they are sentenced to suffer the penalty of RECLUSION PERPETUA and
to pay the heirs of the victim the sum of One Hundred Thousand Pesos
(P100,000.00) as indemnity.11
On appeal, the Court of Appeals affirmed with modification the assailed
decision in this wise:
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial
Court, Branch 60, Barili, Cebu in Criminal Case No. CEB-BRL-050, finding
appellants guilty beyond reasonable doubt of the crime of Murder is hereby
AFFIRMED with MODIFICATION only in the award of damages. The
penalty of reclusion perpetua is affirmed.
Appellants are ordered to pay solidarily the heirs of the victim
Php50,000.00 as civil indemnity and Php25,000.00 as exemplary
damages.12
Before this Court, appellants Benjamin and Abundio argued that the crime
committed was only homicide because of the absence of the
circumstances of treachery and evident premeditation, which would have
qualified the killing to murder, and that their respective defenses of denial
and alibi were meritorious. They likewise pointed out that the testimony of
the prosecution’s witness Romeo is not credible. 13
Our Ruling
We sustain the conviction of both appellants.
The crime committed was murder.
To be convicted of murder, the following must be established: (1) a person
was killed; (2) the accused killed him; (3) the killing was with the
attendance of any of the qualifying circumstances under Article 248 14 of the
Revised Penal Code; and (4) the killing neither constitutes parricide nor
infanticide.15
Appellants maintain that the qualifying circumstance of treachery was not
attendant in the commission of the crime considering that there was no
element of surprise when Pablo was attacked. Pablo had the opportunity to
defend himself. Appellant Benjamin, in his Supplemental Brief, further
argued that even if there was suddenness of the attack, Pablo could have
chosen to retreat.
We are not convinced.
We have time and again declared that "the essence of treachery is a
deliberate and sudden attack, affording the hapless, unarmed and
unsuspecting victim no chance to resist or to escape," 16 and that it may still
exist even if the attack is frontal so long as the same is sudden and
unexpected.17
In this case, it was clear that the elderly victim had no inkling of the
impending danger against him. The attack was sudden notwithstanding the
prior act of placing the assailants’ arms on the shoulder of the victim
because such was done in a friendly manner. As the young Romeo, on
cross examination, testified:
Q: You said that they then put their arms on the shoulder of Pablo Estomo,
how did they do it? Was it in a friendly manner?
A: Yes.18 (Emphasis supplied)
Romeo was also correct as regards the inability of the victim to defend
himself or at least run from the assailants. Thus:
Q: In other words the victim could have run away had he liked to?
A: He could not run because he was already old.
Q: How old was Pablo Estomo if you know?
A: According to my estimate he was 60 years old or more. 19 x x x x
Q: And Pablo Estomo saw the two accused picking up the stone?
A: Yes sir.
Q: So while the two accused was in the act of picking up the stones which
according to you the victim saw, why did he not run?
A: He did not r[u]n because he believed that the two accused will not kill
him.20
Records would show that Pablo was fifty-seven (57) years old at the time
of his death.21 Admittedly, one’s thought processes and reflexes slow with
age that Pablo did not readily understand the intentions of the appellants.
The attack was, therefore, clearly sudden and unexpected.
In the case of People v. Sinda, 22 the Court had the occasion to further
illustrate the attendance of treachery in a situation where the defenseless
victims had already fallen to the ground and there was no risk to the
assailant against any attack from the victims thereby facilitating the
execution of the commission of the crime. Thus:
The appellants, in waylaying the victims, obviously employed a mode of
attack which was deliberately designed to insure the death of their victims
without any risk they could have made against them. Felix and Rogelio
were both unarmed at the time the appellants pelted the two with stones. It
must be stressed that when the victims fell on the ground after the
appellants threw stones at them, there was no danger on the part of the
appellants of any attack from the victims. The victims were not in a position
to defend themselves at the time appellant Gaspar hacked them on their
necks. In other words, the method employed by the accused insured his
safety from any defensive or retaliatory act on the part of the
victims.23 (Emphasis supplied)
Like the victims in Sinda, Pablo fell to the ground unarmed and
defenseless, except that, in the present case, after the victim had fallen to
the ground, the appellants used a big stone the size of a head of a man
instead of a bladed weapon. Romeo described how the two appellants
attacked Pablo, to wit:
Q: What happened to Pablo Estomo when he was struck with stones by
Abundio Binondo and Benjamin Peteluna?
A: Pablo Estomo was still standing at that time and said "don’t harm me
because I have no grudge against you."
Q: What did the accused do when they heard that statement from Pablo
Estomo?
A: They still struck stones towards Pablo Estomo. 24
He detailed cross examination:
A: When the victim was struck and he was hit for the first time at the left
side of the head the victim was still standing. The second hit was at the left
portion of the chest and that is the time Pablo fell to the ground. Then
Benjamin Peteluna picked up a stone and smashed the victim who was on
the ground.25
We agree with the appellants, however, that the prosecution failed to
establish the presence of the qualifying circumstance of evident
premeditation. Such could only be appreciated if there was evidence to
show the following:
(1) the time when the offender [was] determined to commit the crime; (2)
an act manifestly indicating that the accused clung to his determination;
and
(3) a sufficient lapse of time between determination and execution to allow
himself time to reflect upon the consequences of his act. 26
None, for any such circumstance, was offered in the instant case. The
testimony of Romeo, save from the statement that the appellants were
whispering to each other before they placed their arms on Pablo’s
shoulder, was confined to the acts that caused the death of the victim.
Denial and alibi cannot prevail over the positive identification of the
assailants by the witness;
Denial is inherently weak if uncorroborated; For alibi to prosper, it must be
established that it was physically impossible for the appellant to have been
at the locus criminis
It is a time-honored principle that the positive identification of the appellant
by a witness destroys the defense of alibi and denial. 27 Thus:
x x x It is well-entrenched that alibi and denial are inherently weak and
have always been viewed with disfavor by the courts due to the facility with
which they can be concocted. They warrant the least credibility or none at
all and cannot prevail over the positive identification of the appellant by the
prosecution witnesses.28 For alibi to prosper, it is not enough to prove that
appellant was somewhere else when the crime was committed; he must
also demonstrate that it was physically impossible for him to have been at
the scene of the crime at the time of its commission. Unless substantiated
by clear and convincing proof, such defense is negative, self-serving, and
undeserving of any weight in law.29 Denial, like alibi, as an exonerating
justification, is inherently weak and if uncorroborated regresses to blatant
impotence. Like alibi, it also constitutes self-serving negative evidence
which cannot be accorded greater evidentiary weight than the declaration
of credible witnesses who testify on affirmative matters. 30
In this case, Romeo positively identified the appellants, whom he both
knew since he was a child,31 thereby rendering the defenses of alibi and
denial weak. Certainly, it was not physically impossible for appellant
Abundio to be at the hilly portion of Sitio Liki where Pablo was attacked,
the same being only a kilometer away from his own house and two (2)
kilometers away from the farm where he and his father allegedly were on
that fateful day. Appellant Benjamin’s bare denial, on the other hand, is
definitely self-serving. It cannot stand against the positive identification of
an unbiased and credible witness.
Credibility of the testimony is not affected by inconsistencies on points not
relevant to the elements of the crime
Appellant Benjamin faulted the witness for being able to give a complete
account of the incident even during the time that he was supposed to have
been scampering away for safety.32
Romeo, on cross-examination, clarified that when he decided to take
cover, he did not turn his back from his companion. He just stepped back
and accidentally found the bushes from where he hid. 33 This, he said, gave
him the opportunity to witness the entire incident. He nonetheless testified
during the continuation of the cross-examination that he was not able to
look at the direction of Pablo all the time for he had to look for where he
was going. This notwithstanding, appellant Benjamin cannot conclude that
Romeo was not telling the truth when he said that Pablo was attacked by
the appellants using the stones on the ground. The autopsy report
supported his testimony. If at all, Pablo could have actually been hit more
than the number of times Romeo claimed it to be.
Be that as it may, we see this inconsistency trivial. It is not relevant to the
elements of the crime as to affect the credibility of Romeo’s testimony. So
with the inconsistencies primarily on the same points separately raised by
appellant Abundio.34
Settled is the rule on the matter that:
x x x Our scrutiny of the so-called inconsistencies relied upon by Asilan
showed that they only referred to minor details, which did not affect the
credibility of the prosecution witnesses.35 In People v. Albarido,36 this Court
said:
It is elementary in the rule of evidence that inconsistencies in the
testimonies of prosecution witnesses with respect to minor details and
collateral matters do not affect the substance of their declaration nor the
veracity or weight of their testimony. In fact, these minor inconsistencies
enhance the credibility of the witnesses, for they remove any suspicion that
their testimonies were contrived or rehearsed.  In People vs. Maglente, this
1âwphi1
Court ruled that inconsistencies in details which are irrelevant to the
elements of the crime are not grounds for acquittal. x x x.37
As to the rest of the testimony of Romeo, a reading of the transcript of
stenographic notes would show that he rendered a straightforward and
consistent testimony even on cross examination. There is, therefore, no
reason for us to depart from the well-entrenched principle that:
x x x The task of assigning values to the testimonies of witnesses and
weighing their credibility is best left to the trial court which forms first-hand
impressions as witnesses testify before it. It is thus no surprise that
findings and conclusions of trial courts on the credibility of witnesses enjoy,
as a rule, a badge of respect, for trial courts have the advantage of
observing the demeanor of witnesses as they testify. x x x38
All considered, we are convinced that the guilt of appellants had been
sufficiently established with moral certainty.
The imposable penalty is reclusion perpetua in the absence of aggravating
and mitigating circumstances
Under Article 248 of the Revised Penal Code, as amended, the penalty
attached to the commission of the crime of murder is reclusion perpetua to
death. Since neither aggravating nor mitigating circumstances attended the
commission of the crime, the proper imposable penalty on the appellant is
reclusion perpetua.39
Appellant is liable for civil indemnity, moral damages, exemplary damages
and 6% interest on all damages
The civil indemnity in the amount of P50,000.00 awarded by the Court of
Appeals is in order.40 There is, however, a need to increase the award of
exemplary damages from P25,000.00 to P30,000.00 to conform to existing
jurisprudence.41 In addition, the victim’s heirs shall be entitled to moral
damages even in the absence of proof that they suffered mentally and
emotionally42 considering that "a violent death invariably and necessarily
brings about emotional pain and anguish on the part of the victim’s
family."43 A 6% interest on all the monetary awards for damages to be
reckoned from the date of finality of this decision until fully paid shall
likewise be imposed.44

WHEREFORE, the Decision dated 11 July 2007 of the Court of Appeals in

CA-G.R. CEB-C.R.-H.C. No. 00554 is AFFIRMED with MODIFICATIONS.

Accordingly, appellants Benjamin Peteluna and Abundio Binondo are

hereby found GUILTY beyond reasonable doubt of the crime of Murder
and are sentenced to suffer the penalty of reclusion perpetua.
G.R. Nos. 114263-64 March 29, 1996
PEOPLE OF THE PHILIPPINES, vs.
JOHN JENN PORRAS and SERGIO EMELO, accused-appellants.
 FRANCISCO, J.:p
The separate indictments are for MURDER and for FRUSTRATED
MURDER respectively. The appealed judgment went for the People, found
appellants John Jenn Porras and Sergio Emelo guilty of MURDER
(Criminal Case No. 245-91) and sentenced them to "imprisonment
of reclusion perpetua, to indemnify, the heirs of Rosendo Mortel in the
amount of P50,000.00 plus actual damages, funeral expenses in the
amount of P67,000.00 and moral damages in the amount of
P100,000.00,"1 and appellant Sergio Emelo guilty of FRUSTRATED
HOMICIDE (Criminal Case No. 246-91) and sentenced him to
imprisonment of Four (4) years, two (2) months and one (1) day of prision
correccional, as minimum to Eight (8) years of prision mayor, as maximum,
John Jenn Porras is hereby acquitted. With costs in both instances. 2
Appellants impute fourteen alleged errors committed by the trial court
which can be substantially reduced as follows: (1) misappreciation of facts,
(2) giving credence to the inconsistent testimonies of the prosecution
witnesses, i.e., Jose Malumay and Maribel German; (3) ignoring the
defense of alibi; (4) not considering as fatal the prosecution's inability to
present as witness Cpl. Crisanto de la Cruz; (5) admitting in evidence Sgt.
Alvarez's hearsay testimony; and (6) in convicting appellants who were not
positively identified in open
court.
3
Hereunder is the recital of facts of the case as summarized by the trial
court and duly substantiated by the evidence on record:
Piecing together the testimonial and material evidence submitted in
these cases, the Court cannot but conceive the following resume: that
on the night of June 20, 1990, (sic) accused John Jenn Porras and
Sergio Emelo went to the police Station looking for Pfc. Roldan Emelo
of the Cavite City PNP, a cousin of the latter and was directed by Sgt.
Pilapil to where he was; that they had some food and drinks at the
Banaue Restaurant and Emelo asked for his black ammo pouch and
some .38 caliber ammunition; that thereafter, perhaps in connivance
with Marcelo Real of the Philippine Coast Guard who was then
Now, to dispose of the issues raised:
moonlighting in his tricycle, flagged him down along M. Gregorio St.
and in which Marcos Luciano was a passenger at the time and was
told to alight as they were already overloaded and whereat Luciano
identified John Jenn Porras, who was then wearing a maong jacket
and maong pants when he was focused by the headlights of the
incoming vehicle; that they proceeded to the Aroma Beer House where
the victim. Rosendo Mortel was tabled (sic) and wherein some
misunderstanding happened and Ronnie Mortel went out and was shot
at close range by either Porras or Emelo as seen by a waitress,
Maribel Herman who pointed to Porras as the assailant and who after
seeing Rosendo Mortel sprawled on the ground and bloodied, fled into
an alley and thereafter returned and shot the prostrate victim twice and
sped away and who hailed Sgt. Catalino Bermas (sic) was then
monitoring the situation as an Intelligence Operative on his motorcycle
to give chase; that during the shooting Jose Malumay who was on a
bicycle on his way home after going to a house near Sangley Point
also heard a gun shot which he mistook for a blow-out and when he
offered to assist, he saw two men, one in dark attire and the other in
white T-shirt who from the information of the witnesses fixed their
identities as the two accused John Jenn Porras and Sergio Emelo who
fired the initial shot and ran away and later on returned to finish the job
with Porras allegedly having fired the last two shots killing the victim
instantaneously as he was brought to the hospital dead on arrival.
During the chase given by Catalino Bermas he was shot by Emelo
along the way after having told them (Emelo and Real) to go to the
Police Station and Bermas, feeling the effects of his wounds chanced
upon Cpl. Dela Cruz in front of the 501 Beer House and asked for his
assistance and they rode in tandem and pursued the tricycle at the
Saulog Terminal Compound where only the tricycle was left together
with the driver Marcelo Real who pointed to the two accused as the
assailants.
Sgt. Amorico Alvarez who was then following up unsolved cases in the
Station was apprised of the shooting and went to the place and was
informed about the identity (sic) of the tricycle which they traced to the
house of Real whereat they found the black ammo pouch. and the
camouflage holster with the name of Emelo inscribed and with live and
spent bullets on the back seat and putting together the evidence thus
far gathered, he was able to apprehend the three, namely: Porras,
Emelo and Real.  4
Appellants claim that some of the trial court's factual findings  are product
5
A (Witness pointing to Emelo as the one carrying a shoulder bag and
of imagination and gross misrepresentation allegedly due to lack of. the other one who is chubby identified himself as John Jenn Porras.)
evidentiary support. While our examination of the record shows that the
assailed factual findings are in some respects inaccurate they, however, Q You said these two persons came to you asking for Roldan Emelo,
did not debilitate the prosecution's case and neither did they affect the what did you do?
appellant's finding of guilt. SPO3 Rolando Villegas, one of the
prosecution's witnesses, indeed, positively identified the appellants as the A I pointed to the traffic division.
persons who showed up at the Cavite City police station at around 9:00
o'clock in the evening of June 19, 1990, looking for Pfc. Roldan Emelo —
Q And that is where Roldan Emelo was?
persons who, the record reveals, were responsible for the dastardly
crimes. Thus:
A Yes, ma'am.
Q While doing it, Mr. Witness, while waiting for this report you have just
mentioned, can you tell the Court if there was an incident which Q When the two men got your answer, what did they do?
transpired in your office?
A They proceeded to the Traffic Division and a few moments later they
A Because I have read my statement, I remember that two men arrived went out.  
6

at the police station asking for the whereabouts of Pat. Roldan Emelo.
Next, appellants impugn the credibility of the prosecution witnesses by
Q And this Pat. Roldan Emelo is connected with your office? citing the seeming inconsistency between the testimonies of Maribel
German, who apparently saw one assailant, and Jose Malumay, who, on
the other hand, claimed to have seen two assailants. The following are
A Yes, ma'am.
excerpts of the questioned testimonies:
Q Do you know this person who asked for Roldan Emelo?
JOSE MALUMAY:
A I came to know those persons when they were involved in a shooting
Q What was this incident, kindly relate to the Honorable Court?
incident in San Antonio.
A On that night, from Sangley going to Rafael Palma St. and M.
Q At the time they came to you asking for Roldan Emelo, could you still
Gregorio St., I passed by a tricycle upon reaching the corner of Calpo, I
recall how they look like?
heard a shot which I presumed it (sic) was a tire which exploded so, I
stopped my bicycle because I thought they would need help. When I
A Yes, ma'am because the suspects were identified by the witnesses. stopped and look towards the tricycle, I saw the man riding at the back
One involved is a small man, dark, wearing white T-shirt, maong pants seat of the driver alighted (sic), mam.
and carrying a black shoulder bag. The other one is chubby, and he is
wearing a sleeveless cream T-shirt, carrying a maong jacket and
x x x           x x x          x x x
wearing maong pants.
Q What happened to the man who used to sit at the back of the driver?
Q If you will be able to see these persons again, can you recall them?
A When the man went to the side of the sidecar, another man alighted
A Yes, ma'am..
from the sidecar, mam.
Q Kindly took around the Court room and point them out.
Q And then, what happened when that man alighted from the sidecar.
A When the man went to the side of the sidecar, another man alighted
and (sic) jerked by the man coming from inside the sidecar?
x x x           x x x          x x x
FISCAL DIESMOS:
Let us just say the man who alighted from the driver (sic) seat, let us
call him the second man and the man who alighted inside (sic) the
tricycle as the first man.
COURT:
What did you see?
A When the first man jerked himself, (sic) the second man went to the
front of the tricycle, sir.
FISCAL DIESMOS:
Q In what direction was the second man headed when he ran?
A He crossed the street going to Capt. Jose St., mam.
Q What else happened when the second man ran towards Capt. Jose
St.?
A I hear (sic) another shot, then that second man fell on the ground,
mam..
Q And then, what else happened when that second man fell on the
ground?
A The third man alighted from the sidecar. When he alighted from the
sidecar, he is going (sic) towards the back going to the fallen man,
(referring to the second man). The third man went to the body of the
fallen man which I thought he would help him but as I was about to go
away, I heard another shot, then I saw a fire from the hands of that
third man.
Q When you saw that fire coming from the hands of the third man, at
this point in time, where was the third man?
A Beside the fallen man, mam.
Q And his hands was (sic), how would you describe, how was the
position as the fire was coming from his hand?
A His hand was positioned as if, he was going to help the fallen man.
x x x           x x x          x x x
Q But, Mr. Witness since you saw the incident would you be able to tell
the Honorable Court the attire of the third man who shot the second
man?
A As far as I can remember, the man who shot the second man was
wearing a dark attire, mam.
Q What about the first man, the man who alighted from the back of the
driver of the tricycle, did you see how he was attired?
A It seems, he was wearing a white shirt because the upper portion of
his attire was light, mam.
MARIBEL GERMAN:
Q While you were at work at Cathy's Refreshment, do you recall of
(sic) any unusual incident that happened?
A Yes, Ma'am, there was.
Q What was this, will you please tell the Honorable Court?
A I heard two gunshots.
Q When you heard two gunshots, what did you do?
A I looked where the gunshots came from.
Q And you saw what? Did you see anything?
A There was.
Q What did you see, Madam Witness?
A A fallen man crawling on the ground.
Q What else did you see, if you saw anything else?
A And a man standing about to enter an alley.
Q Was that man able to enter the alley?
A Yes, Ma'am..
Q And what happened next after he enter (sic) the alley?
A And who again emerged therefrom.
Q After emerging from the alley, what did he do, if he did anything?
A Again he shot the crawling man two times.
Q After shooting the man twice, what did that man do next?
A He poked (sic) his gun in our direction, so we went inside the Cathy's
Refreshment.
x x x           x x x          x x x
Q You said you went inside the restaurant when that man poked a gun
at you, is that right?
A Yes, Ma'am.
Q Inside the restaurant, what did you do?
A I peeped.
Q Where did you peep, through the window?
A I peeped at the door.
Q What did you see?
A I saw the man boarded (sic) a bicycle.
x x x           x x x          x x x
Q But were you able to notice how he was dressed, his attire?
A He was wearing a T-shirt and maong pants and rubber shoes. 8
We find that the purported inconsistency is more fancied than real.
A closer scrutiny of Maribel German's testimony reveals that she
merely saw an assailant shoot the victim (Mortel) while sprawled
on the ground, but nowhere in her testimony did she state that
there is only one assailant. In fact, Maribel German never testified
witnessing the crime from its inception which Jose Malumay
witnessed to have been authored by two assailants. This explains
the apparent inconsistency between the witnesses' testimonies.
At any rate, the alleged inconsistency just discussed, which was shown to
be otherwise, is neither substantial nor of such nature to cast a serious
doubt on the credibility of the prosecution witnesses. The established rule
of evidence is that inconsistencies in the testimony of prosecution
witnesses with respect to minor details and collateral matters do not affect
either the substance of their declaration, their veracity or the weight of their
testimony.  Inconsistencies in the testimonies of witnesses, if only in minor
9
details, reinforce rather than weaken their credibility, for it is usual that
witnesses to a stirring event should see differently some details of a
startling occurrence.'" Discrepancies on minor details, which do not destroy
the substance of the witness' testimony show that the witness was not
rehearsed. 11
Appellants' defense of alibi must likewise fail. Against their positive
identification, alibi cannot prevail.   Prosecution witness, Marcos Luciano
12
positively identified appellant John Jenn Porras as one of the persons who
were on board the tricycle which was used as get away vehicle by Mortel's
assailants just before midnight on June 19 1990;  SPO3 Rolando Villegas
13
identified Sergio Emelo and John Jenn Porras as the persons who arrived
at the PNP station looking for Pfc. Roldan Emelo at around 9:00 o'clock on
that evening of June 19, 1990;  Maribel German described one of the
14
assailants as wearing a
T-shirt, maong pants and rubber shoes, and was riding in a tricycle;  and
15
Sgt. Catalino Bermas confirmed the person described by Maribel German
to be Sergio Emelo,  the same person he identified as his assailant on that
16
same night. 7 1
Furthermore, proof that they were somewhere else when the crime was
committed is not enough. Appellants must likewise demonstrate that they
could not have been physically present at the place of the crime, or in its
vicinity, at the time of its commission.  In this connection, we quote with
18
approval, the trial court's observation:
The alibi set up by the two accused that they were in their barracks
sleeping, all the time up to early morning, is of no moment, as alibi is
the weakest of all defenses, specially (sic) so when the place where
they alleged to have been at the time of the commission of the offense
and the situs where the incident happened is (sic) not so far (sic)
distant from each other and maybe (sic) reached within a reasonable
time which, in the instant cases are no more than 100 or 200 meters
apart.19
Appellants also contend that the non-presentation of Cpl. Crisanto de la
Cruz, one of the police officers who first investigated the crime, and Pfc.
Roldan Emelo, the police officer who gave appellant Sergio Emelo the
black ammo pouch bag and .38 caliber bullets, is fatal to the prosecution's
case. We find this contention devoid of merit. The matter of deciding whom
to present as witness for the prosecution is not for the accused or, for the
trial court to decide, as it is the prerogative of the prosecutor." Moreover, if
the appellants believed that the testimony of the said police officers would
bolster their theory, then they could have availed of the compulsory
process to have the latter produced as their witnesses,  which they failed
21
to do so.
Appellants likewise characterize as hearsay the testimony of Sgt. Amorico
Alvarez on Pfc. Roldan Emelo's statements to the police investigator
implicating them to the crime. This contention is bereft of legal basis for it is
a settled rule that when a testimony is presented to establish not the truth
but the tenor of a statement or the fact that such statement was made, as
in this case, the same is not hearsay.   Furthermore, appellants' conviction
22
did not hinge solely on the assailed testimony as there were other
evidence extant in the records establishing their guilt beyond reasonable
doubt.
Finally, appellants argue that they were not positively identified in open
court by the two prosecution's witnesses (German and Malumay) to be the
culprits, hence they may not be convicted of the crime charged. The
argument is specious and erroneously assumes that there was no
identification made. While witnesses German and Malumay did not point
out the appellants in open court they, nonetheless, described the
perpetrators' attire at the time of the commission of the crime, with one
assailant wearing a T-shirt, maong pants and rubber shoes, and the other
assailant wearing a dark attire. These descriptions conform with the other
witnesses' testimony identifying the appellants to be wearing the same
attire during the commission of the crimes. In any event, it is a settled rule
that there can be a conviction based on circumstantial evidence when the
circumstances proved form an unbroken chain which leads to a fair and
reasonable conclusion pinpointing the accused, to the exclusion of all
others, as the perpetrator of the crime,  as in this case. In order that
23
circumstantial evidence may be sufficient to convict, the same must comply
with these essential requisites, viz: (a) there is more than one
circumstance; (b) the facts from which the inferences are derived are
proven; (c) the combination of all the circumstances is such as to produce
a conviction beyond reasonable doubt.  The record reveals that there were
24
at least eleven circumstances correctly considered by the trial court in
arriving at its judgment of conviction, viz: moments before the incident of
June 20, 1990, appellants were seen inside the Cavite City PNP Station
looking for Pfc. Roldan Emelo;   (2) appellant Sergio Emelo was then
25
wearing a white T-shirt, maong pants and rubber shoes while appellant
John Jenn Porras was wearing a sleeveless cream T-shirt, maong pants
and was carrying a maong jacket,  (3) on the same evening just before the
26
incident, appellant John Jenn Porras, then wearing a maong jacket, was
seen on board the tricycle of Marcelo Real, together with a man wearing a
white
T-shirt; 7 (4) the two assailants were described by Jose Malumay as
2
respectively wearing a dark attire and white T-shirt,  (5) one of the persons
28
who shot Rosendo Mortel was described by Maribel German as wearing a
T-shirt, maong pants and rubber shoes;  (6) the assailants of Rosendo
29
Mortel bearded a tricycle to flee from the scene of the crime,  (7) Sergio
30
Emelo was identified by Sgt. Catalino Bermas as the person on board the
tricycle that fled from the scene of the crime;   (8) Sergio Emelo was
31
identified by Sgt. Catalino Bermas as the person who shot him during the
chase;  (9) a magazine pouch, camouflaged holster with the name
32
Emelo, .38 caliber empty shells and live bullets were found immediately
after the shooting on the floor of the tricycle used by the appellants;   (10)
33
Rosendo Mortel and Sgt. Catalino Bermas both sustained gunshot wounds
from a .38 caliber handgun;  and (11) the flight of the appellants which was
34
not sufficiently explained. There is no reason for us to disagree with the
trial court on these matters. These findings are fully supported by the
evidence on record and constitute an unbroken chain of events which by
their concordant combination and cumulative effect, more than satisfy the
requirements for the conviction of the appellants. 35
The trial court, however, erred in appreciating the qualifying circumstance
of treachery in Criminal Case No. 245-91. Treachery must be proved by
clear and convincing evidence, or as conclusively as the killing (8) years and One (1) day of Prision Mayor, as minimum, to Fourteen (14)
itself.  And to appreciate it, two conditions must concur, viz: (a) the
36
years, Eight (8) months and One (1) day of Reclusion Temporal, as
employment of means of execution that gives the person attacked no maximum, respectively, and to indemnify, jointly and severally, the heirs of
opportunity to defend himself or to retaliate, and (b) that said means of the deceased Rosendo Mortel the amount of P50,000.00, plus actual
execution be deliberately and consciously adopted.   7 In this regard, the
3
damages and funeral expenses in the amount of P67,000.00. The award
prosecution failed to definitively establish the manner in which the initial for moral damages in the amount of P100,000.00 which we find to be
assault against the deceased victim was committed to justify the excessive is hereby reduced to P50,000.00. However, in Criminal Case
appreciation of treachery. This hiatus in the prosecution's evidence cannot No. 246-91, the judgment appealed from is hereby affirmed in toto.
be substituted by mere suppositions as what the trial court apparently did.
It is a well settled rule that in order to appreciate treachery as a modifying
circumstance in a continuous aggression, as in this case, the same must
be shown present at the inception of the attack.  Absent any showing
38

therefor, treachery as a qualifying circumstance may not be considered.

With respect to Criminal Case No. 246-91, we find that the trial court
properly discarded the qualifying circumstance of treachery and correctly
ruled that the crime committed is Frustrated Homicide and not Frustrated
Murder as alleged in the information. The shooting of Sgt. Catalino Bermas
who was fully aware of the risks in pursuing appellants was, at best, done
in a spur of the moment, an act which can hardly be characterized as
treacherous for it was no where proved that the same was deliberately
adopted to deny Sgt. Bermas the opportunity to defend himself.

The actual participation of the appellants in the killing of Rosendo Mortel

having been established by the prosecution, they are therefore equally
liable pursuant to the rule on conspiracy "that the act of one is the act of
all".  Conspiracy was duly proven by the positive testimonies of the
39

prosecution witnesses pointing to acts done in concert by the appellants to

carry out their unlawful design, but only with respect to the killing of
Rosendo Mortel. When an act done is beyond the contemplation of the co-
conspirators and is not a necessary or logical consequence of the intended
crime then only the actual perpetrators are to be held liable." And in this
case, the conspiracy proved corcerns solely the killing of Mortel and is not
the shooting of Sgt. Catalino Bermas. Thus, appellant Sergio Emelo alone
should be held liable for the crime of Frustrated Homicide in Criminal Case
No. 246-91.

WHEREFORE, in view of the foregoing, judgment is hereby rendered in

Criminal Case No. 245-91, finding the appellants JOHN JENN PORRAS
and SERGIO EMELO guilty beyond reasonable doubt of the crime of
Homicide, defined and penalized under Article 249 of the Revised Penal
Code. Considering the absence of any mitigating or aggravating
circumstance and applying the Indeterminate Sentence Law, appellants
are hereby sentenced to suffer an indeterminate penalty ranging from Eight
C.A. No. 227             February 1, 1946
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
LEON CASTILLO, ET AL., accused. NENA TANALEGA
RAYMUNDO, appellant.
DE JOYA, J.:
Defendant-appellant Nena Tanalega Raymundo was accused of the crime
of frustrated murder by poisoning through reckless imprudence, in the
Court of First Instance of Laguna, under the following information:
The undersigned Acting Provincial Fiscal accuses Dr. Leon Castillo
and Mrs. Nena Tanalega Raymundo of the crime of "FRUSTRATED
MURDER BY POISONING THROUGH RECKLESS IMPRUDENCE,"
committed as follows:
That on or about the 18th day of February, 1941, in San Pablo City,
Commonwealth of the Philippines, and within the jurisdiction of this
Honorable Court, Mr. Silvino Belarmino presented for dispensation at
the Escudero Drug Store and bought one-third formula of the following
prescription of Dr. Antonio G. Sison, to wit:
Spartein sulphate 1.00
Phenobarbital 0.50
Carbromal 5.00
Mx. Div. et pone in cap. No. XV
Sig.; One capsule once a day
Dr. Leon Castillo and Mrs. Nena Tanalega Raymundo mutually helped
each other prepare and dispense the said prescription, but instead of
mixing the required proportion of Spartein Sulphate, through
carelessness and reckless imprudence, willfully, unlawfully and
feloniously, they mixed and compounded in the formula a toxic dose of
Strychnine Sulphate, which is a poisonous substance, and as a result
of such carelessness and imprudence, Mr. Belarmino, upon taking one
capsule of the medicine on the very same day, was poisoned and
would have died, had it not been for causes independent of the will of
the accused; that had the act committed by the accused been
intentional it would constitute the crime of frustrated murder.
After the corresponding trial, the Honorable Jose Ma. Paredes, presiding
judge of the Court of First Instance of Laguna, on October 12, 1942,
rendered judgment, finding said accused guilty of the crime of frustrated
homicide through reckless imprudence, and sentenced her to suffer four
(4) months of arresto mayor and to pay the costs of the proceedings, at the
same time acquitting her co-accused Dr. Leon Castillo.
The private prosecution has reserved the right to file a separate civil action,
and consequently the complainant did not present any evidence as to any
damage he might have suffered by reason of the alleged negligence of the
accused.
The accused, Nena Tanalega Raymundo, appealed from said decision to
the Court of Appeals of Southern Luzon, claiming that the trial court had
erred —
1. In holding that a frustrated felony can be committed through reckless
imprudence.
2. In holding that a felony committed through reckless imprudence can
exist when no material damage has been caused.
3. In holding that a felony committed through reckless imprudence can
exist where the relation of proximate cause to effect has not been
proved.
4. In holding that the complaining witness had taken strychnine
sulphate.
5. And in holding that defendant and appellant had dispensed
strychnine sulphate.
After the corresponding hearing, on June 10, 1944, the Court of Appeals of
Southern Luzon, in a decision penned by Justice Rufino Luna, concurred in
by Associate Justices Fernando Jugo and Jose O. Vera, found the
defendant and appellant Nena Tanalega of slight physical injuries through
reckless imprudence, and sentenced her to pay a fine of two hundred
pesos (P200) and to pay the costs. The Court of Appeals deemed it
unnecessary to pass upon the defense of prescription urged by defendant
and appellant, stating that the offense of which she was found guilty and
the penalty imposed upon her are correctional in nature.
Having been duly notified of said decision of the Court of Appeals,
defendant and appellant Nena Tanalega Raymundo, on June 21, 1944,
filed a motion for the reconsideration of said decision, on the following
grounds:
1. That under the law there is no such thing as a correctional offense.
2. That the light offense found by the Court of Appeals had already
prescribed.
3. That the prescription of the offense in question is not affected by the
qualification correctional of the fine imposed.
4. That the penalty imposed is not correction.
5. That in case of doubt as to the law applicable to determine the
question of prescription, the accused should be given the benefit of
such doubt.
6. That under the law the prescription of the offense and the prescription
of the penalty are separate and distinct.
7. That defendant and appellant has been found guilty of an alleged
offense which does not exist under our law.
8. That defendant and appellant has been sentenced, without due
process of law, that is, for an offense not specified in the information.
9. That there is no evidence, beyond reasonable doubt, that the
ailments suffered by the offended party, were due to the capsules
purchased from the drug store in question.
10. That the best evidence available was not secured, and very much
less presented.
11. The pecuniary interest of the offended party.
12. That it has not been shown beyond reasonable doubt that the
accused had given strychnine.
The evidence, testimonial and documentary, presented by the parties in
the trial court, has satisfactorily established the following facts:
That for sometime prior to the filing of the information in this case on
September 12, 1941, the complaining witness, Silvino Belarmino, had been
suffering from a certain disease, for which Dr. Antonio G. Sison prescribed
the following medicine:
Spartein sulphate 1.00
Phenobarbital 0.50
Carbromal 5.00
Mx. Div. et pone in cap. No. XV
Sig.; One capsule once a day
Belarmino presented the prescription to the Universal Drug Store, in the
City of Manila, where he secured the medicine described therein contained
in a bottle (Exhibit C) on which the prescription was written, and after
taking said medicine his health was somewhat improved. When the
symptoms of the said disease recurred, following the instructions given him
by Doctor Sison to continue taking said medicine, he copied said
prescription (Exhibit 2), and, in the morning of February 18, 1941,
presented it to the Escudero Drug Store, in the City of San Pablo, Laguna,
and asked Dr. Leon Castillo, the manager of the said drug store, and a
friend of the complainant, whether they could prepare said medicine, after
having failed to secure the same in other drug stores in the locality; and
having been answered in the affirmative, the complaining witness
requested Doctor Castillo to have prepared for him 1/3 of the formula and
Doctor Castillo himself wrote "1/3 f." on Exhibit 2, for P1, as the whole
formula cost P3; as there was some doubt as to the figure appearing after
the word "carbromal" on Exhibit 2, Belarmino requested Doctor Castillo to
check it up, and the latter corrected the said figure by writing the figure "5"
in ink in the figure "6" appearing after the word "carbromal." As Belarmino
himself wanted to be sure about the said figure, he proposed to return to
said drug store in the afternoon with the bottle marked Exhibit C, on which
the prescription was written; and in fact he returned at about 2 o'clock in
the afternoon of the same day. The pharmacist, Saturnino Gesmundo
Cortes, of said drug store, was then in the house, and Doctor Castillo sent
for defendant-appellant Nena Tanalega Raymundo, who was employed in
said drug store as pharmacy clerk. Mrs. Raymundo was already a
pharmacy graduate, but she had not yet taken and passed the government
examination conducted by the Board of Pharmaceutical Examiners; and
she had worked as a pharmacy clerk in different drug stores in the City of
Manila, before her employment in the same capacity in the Escudero Drug
Store in the City of San Pablo. Before the arrival of the defendant and
appellant, Doctor Castillo, took two bottles from the shelves and a
cardboard box and placed them on the dispensation table. Mrs. Raymundo
then prepared the balance and began computing the formula contained in
Exhibit 2 to reduce it to 1/3 after which she proceeded to compound the
medicine, using, among others, the substances contained in said two
bottles. The medicine compounded by defendant and appellant was placed
in five (5) capsules and was delivered by Doctor Castillo to herein
complainant contained in a cardboard box (Exhibit B), for which he paid
P1, as previously agreed upon with Dr. Leon Castillo, manager of the
Escudero Drug Store; that at about 5 o'clock in the afternoon of the same
day, February 18, 1941, the complainant took one of the capsules with a
glass of water, and left his house for a walk; and about 20 minutes after he
had taken said medicine, he became ill. He felt dizzy and had difficulty in
breathing, and he could hardly stand as his knees became shaky, and for
that reason, he immediately consulted with physicians, namely, Dr. Felisa
Celestino and Dr. Ricardo Reyes, and the latter advised him to go home
and rest. About two hours afterwards, complainant's legs began to stiffen,
his stomach to harden, his lips to draw back, and his tongue to shrink to his
throat, and he could not talk and thought that he was in a serious condition;
and so complainant's family sent for Dr. Ricardo Reyes, who advised
complainant's wife to rub his body with hot water which produced some
relief, after he had urinated; and the following day when Doctor Reyes
returned, complainant explained to him all that had happened and showed
him the remaining four capsules contained in the cardboard box, marked
as Exhibit B, on which the prescription had not been written, and Doctor
Reyes advised the complainant not to take any more of said remaining four
capsules.
That believing that there must have been something wrong with the
medicine which he had purchased from the Escudero Drug Store, on
February 24, 1941, the complaining witness sent two of the four capsules
(Exhibits E-2 and E-3) to the Bureau of Science for examination, and their
contents were examined and analyzed by Eusebio Gutierrez, a chemist of
the Institute of Hygiene, at the instance of the Board of Pharmaceutical
Examiners, and said chemist submitted a report on the analysis made by
him (Exhibit D), dated March 15, 1941, in which it was shown that the filling
prescription Exhibit 2, defendant and appellant had erroneously used and
mixed, instead of spartein sulphate as called for in the prescription
(Exhibits C and 2), strychnine sulphate, a highly poisonous substance —
50.5 milligrams in one and 61.75 milligrams in the other.
On March 26, 1941, the complainant came to the City of Manila and again
consulted Dr. Antonio G. Sison, informing the latter of the medicine
purchased by him from the Escudero Drug Store, consisting of 1/3 formula,
contained in five (5) capsules, and that he had taken one of said capsules
with a glass of water, and that about 25 minutes after he became ill,
mentioning to Doctor Sison the symptoms already described above, and
said physician informed him then that he had been a victim of poisoning.
It has also been shown by expert testimony presented in this case that
herein complainant had been a victim of strychnine poisoning and that 50.5
milligrams of strychnine sulphate found in one of the capsules examined
was sufficient to cause the death of herein complainant, if not for the fact
that, in compounding said prescription, phenobarbital and carbromal had
been mixed therewith, in the quantities specified in the prescription, which
two substances diminished the deadly effect of strychnine sulphate as
poison.
Having thus secured the necessary data, upon which to base a criminal
action against the employees of the Escudero Drug Store, on September
12, 1941, herein complainant caused the filing of the information
transcribed above, against Dr. Leon Castillo and herein defendant and
appellant Nena Tanalega Raymundo, as manager and pharmacy clerk of
the Escudero Drug Store, respectively. The pharmacist of said drug store,
Saturnino Gesmundo Cortes, was not included in the information, because
he was not in the drug store at the time that the said prescription was
compounded, although it had always been the practice in said drug store
for the pharmacist to be present every time herein defendant and appellant
compounded any prescription, as pharmacy clerk.
The foregoing facts have been sufficiently established by the evidence
adduced during the trial of the case.
As already stated, the Court of First Instance of Laguna acquitted Dr. Leon
Castillo, manager of the Escudero Drug Store, of the crime charged in the
information, on the ground of reasonable doubt, but found herein
defendant and appellant, Nena Tanalega Raymundo, guilty of the crime of
frustrated homicide through reckless imprudence.
In view of the facts stated above, said judgment of conviction is untenable,
on the ground that the offense of frustrated homicide requires the
concurrence of the essential requisite of intent to kill, which is incompatible
with the charge of reckless imprudence; although a charge for physical
injuries, serious or less serious, through reckless imprudence, is legally
proper under the law; as in that case the act sought to be punished is the
material damage or injury actually done. (Sentencia de 15 de diciembre,
1883, Gaceta de 13 de marzo de 1884; 7 Viada, 5.ª ed., pags. 69, 70.)
In the case at bar, the Court of Appeals modified the decision of the trial
court, and concluded that the offense committed by the defendant and
appellant Nena Tanalega Raymundo was slight physical injuries through
reckless imprudence, and imposed upon her a fine of P200 and to pay the
costs.
In the motion for reconsideration filed by counsel for defendant and
appellant, it is claimed that there is no sufficient basis for such a judgment,
on the ground, among others, among others, that no evidence has been
adduced to show the nature or extent of the injury, if any, sustained by the
complaining witness, and whether such injury, if any, had been caused by
the drug or medicine sold to him by the Escudero Drug Store, as no
specimen had been taken from the contents of the stomach of the
complainant for chemical examination and analysis; and that it has not
been possible, of course, to make any examination of the stomach of the
complainant.
Furthermore, counsel for defendant and appellant contends that, even
admitting for the sake of argument, that the offense of slight physical
injuries through reckless imprudence were imputable to herein defendant
and appellant, the corresponding action should have been instituted
against her within the period of two (2) months as prescribed under article
90 of the Revised Penal Code; and that the alleged offense having been
committed on February 18, 1941, and the corresponding information
having been filed (7) months afterwards, to wit, September 12, 1941, the
corresponding criminal action had already prescribed.
The legal question raised by counsel for defendant and appellant appears
to be quite plausible, and defendant and appellant would appear to be
entitled to a judgment of acquittal, under the Revised Penal Code.
On the other hand, human health is a most precious thing, and human life
is most sacred. When a person gets sick or feels sick, he goes to, or sends
for, a physician for consultation and treatment, so that he may secure the
proper remedy for his malady. The physician, after a careful examination of
the patient and study of the symptoms manifested, prescribes the
treatment and remedy, which he deems most appropriate for the patient to
give him relief, and orders the necessary medicine. When the patient goes
to a drug store to secure or buy the medicine prescribed by his physician,
he has the right to expect that the medicine so prescribed will be given to
him, as it is the plain duty of each and everyone, whether a pharmacist or a
pharmacy clerk, to give to the patient or purchaser the drug or medicine
called for in the prescription. Said pharmacist or pharmacy clerk does not
live up to this standard, when he gives one medicine for another, or
delivers an adulterated medicine or drug, thus endangering the life and
health of the patient or purchaser; and when they do so, said pharmacist
and pharmacy clerk act in their peril. The law cannot countenance or
tolerate or condone any negligence or act of negligence on their part.
It so happens that the information filed in this case is a detailed one,
reproducing the prescription (Exhibits 2 and C) given to the complainant by
Dr. Antonio G. Sison; but when it was filled and the medicine compounded
in the Escudero Drug Store by defendant and appellant, the result of its
analysis did not tally with said prescription, as shown by the report
submitted by the Institute of Hygiene marked as Exhibit D.
Section 751 of the Revised Administrative Code (1940 ed.) provides as
follows:
SEC. 751. Responsibility for quality of drugs. — Every pharmacist
shall be responsible for the quality of all drugs, chemicals,
medicines, and poisons he may sell or keep for sale; and it shall be
unlawful for any person whomsoever to manufacture, prepare, sell,
or administer any prescription, drug, chemical, medicine, or poison
under any fraudulent name, direction, pretense or to adulterate any
drug, chemical, medicine, or poison so used, sold, or offered for
sale. Any drug, chemical, medicine, or poison shall be held to be
adulterated or deteriorated within the meaning of this section if it
differs from the standard of quality or purity given in the United
States Pharmacopoeia.
And the violation of any provision contained in said section 751 of the
Revised Administrative Code (1940 ed.) is punished in accordance with the
provisions of section 2676 thereof, which are as follows:
SEC. 2676. General Violation of Pharmacy Law. — Any person
engaging in the practice of pharmacy in the (Philippine Islands)
Philippines contrary to any provision of the Pharmacy Law or
violating any provision of said law for which no specific penalty is
provided shall, for each offense, be punished by a fine not to
exceed five hundred pesos, or by imprisonment for not more than
six months, or both, in the discretion of the court.
Numerous American decisions have laid down salutary rules for the
protection of human life and human health, some of which have been cited
with approval by this Court in a similar case.
The profession of pharmacy demands care and skill; and druggists must
exercise care of a specially high degree, the highest degree of care known
to practical men. In other words, druggist must exercise the highest
practical degree of prudence and vigilance, and the most exact and reliable
safeguards consistent with the reasonable conduct of the business, so that
human life may not constantly be exposed to the danger flowing from the
substitution of deadly poisons for harmless medicines.
(Tombari vs. Connors [1912], 85 Conn., 235.)
A druggist that sells to a purchaser or sends to a patient one drug for
another or even one innocent drug, calculated to produce a certain effect,
in place of another sent for and designed to produce a different effect,
cannot escape responsibility, upon the alleged pretext that it was an
accidental or an innocent mistake. His mistake, under the most favorable
aspect for himself, is negligence. And such mistake cannot be
countenanced or tolerated, as it is a mistake of the gravest kind and of the
most disastrous effect. (Fleet vs. Hollenkemp [1852], 56 Am. Dec., 563.)
One holding himself out as competent to handle such drugs, and having
rightful access to them, and relied upon by those dealing with him to
exercise that high degree of caution and care called for by the peculiarly
dangerous nature of the business, cannot be heard to say that his mistake
by which he furnishes a customer the most deadly of drugs for those
comparatively harmless, is not in itself gross negligence. (Smith's
Admrx. vs. Middelton [1902], 56 L. R. A., 484.)
In reality, for the druggist, mistake is negligence and care is no defense.
And in Criminal Law, run the same rigorous rules. Apothecaries, or
apothecary clerks, who are guilty of negligence in the sale of medicine
when death ensues in consequence, have been held guilty of
manslaughter. (Tessymond's Case [1828], 1 Lewin, C. C., 169.) United
States vs. Pineda, 37 Phil. 456, 458.
The delivery of one drug for another has been declared punishable in this
jurisdiction. In a case in which the complainant asked for potassium
chlorate, but received from the druggist barium chlorate, this Court
declared that such act was tantamount to giving or dispensing medicine
under a fraudulent name; and notwithstanding the fact that the potassium
chlorate demanded and paid for was much cheaper than the barium
chlorate which was actually delivered by the druggist, the latter was held
criminally responsible, and punished, in accordance with the provisions
contained in said section 751 of the Revised Administrative Code, in
connection with the provisions of section 2676 thereof, declaring that
defendant had sold a drug under a fraudulent name. (United
States vs. Pineda, 37 Phil., 456.)
In the Pineda case, the potassium chlorate demanded by the complainant
had been intended for his race horses; and when the complainant mixed
with water what he thought and believed was potassium chlorate, but
which turned out to be barium chlorate, which is poisonous, his race
horses died from poisoning a few hours after having drunk water in which
barium chlorate had been dissolved and mixed.
The wisdom of such a decision is unquestionable. If the victims had been
human beings instead of horses, the damage and loss would have been
irreparable.
It is true that in the instant case, the complainant, Silvino Belarmino, did
not die and that there was a great difficulty in determining the injury, if any,
sustained by him, because of the impossibility of examining his stomach
and other internal organs. In the Pineda case, this Court declared, with
reason and justified by experience, that the profession of pharmacy
demands great care and skill, and that druggists must exercise and use the
highest degree of care known to practical men; and that the care required
must be commensurate with the danger involved, and the skill employed
must correspond with the superior knowledge of the business which the
law demands.
But it may be stated that the instant case is different from the Pineda case,
in which the accused was a licensed pharmacist and druggist; whereas in
the instant case, the defendant and appellant Nena Tanalega Raymundo,
was only a pharmacy clerk. But it must be borne in mind that, at the time of
the commission of the alleged offense, defendant and appellant was
already a pharmacy graduate, and that she had worked as a pharmacy
clerk in several drug stores in the City of Manila, although she had not yet
taken and passed the examinations prescribed by the Board of
Pharmaceutical Examiners.
But the offenses penalized under the provisions of section 751 of the
Revised Administrative Code, in connection with the provisions of section
2676 thereof, may be committed not only by licensed druggists and
pharmacists, but also by any other person preparing any drug, chemical,
medicine or poison, under any fraudulent name.
After a careful consideration of the allegations made in the information filed
in this case, and the facts fully established by the evidence adduced during
the trial, the Court has reached the inevitable conclusion that defendant
and appellant Nena Tanalega Raymundo, is guilty of a violation of the
provisions contained in said section 751 of the Revised Administrative
Code, in connection with the provisions of section 2676 thereof.
As already stated, the prescription (Exhibits C and 2) called for:
Spartein sulphate 1.00
Phenobarbital 0.50
Carbromal 5.00
whereas, the medicine compounded by defendant and appellant contained
strychnine sulphate, instead of spartein sulphate (Exhibit D).
It is an elementary rule of criminal jurisprudence that the defendant in a
criminal case may be found guilty of any offense necessarily included in
the allegations made in the information, and fully established by the
evidence. (Rule 116, section 4, Rules of Court; United States vs. Paua, 6
Phil., 740; United States vs. Jeffrey, 15 Phil., 391; United States vs. Lim
San, 17 Phil., 273; United States vs. De Guzman, 19 Phil., 350; United
States vs. Salvador, 22 Phil., 113; United States vs. Guzman, 25 Phil., 22;
United States vs. Panlilio, 28, Phil., 608.)
Defendant and appellant cannot complain that she has been found guilty of
a criminal offense, without due process of law. She had ample opportunity
to defend herself against the charges filed against her.
With reference to the requirements of "due process of law" as applied to
criminal procedure, in the language of the Supreme Court of the United
States, generally speaking, it may be said that if an accused has been
been heard in the court of competent jurisdiction, and proceeded against
under the orderly processes of law, and only punished after inquiry and
investigation, upon notice to him, with an opportunity to be heard, and a
judgment awarded within the authority of a constitutional law, then he has
had due process of law. (Rogers vs. Peck, 199 U.S., 425, 435;
Twining vs. New Jersey, 211 U.S., 78.)
The phrase "due process of law", used in the Constitution of the
Commonwealth of the Philippines, should receive a comprehensive
interpretation, and no procedure should be treated as unconstitutional
which makes due provision for the trial of the accused before a court of
competent jurisdiction, for bringing the accused into court and notifying him
of the cause he is required to meet, for giving him an opportunity to be
heard, for the deliberation and judgment of the court, and for an appeal
from such judgment to the highest tribunal of the land. (United
States vs. Grant and Kennedy, 18 Phil., 122.)
The offense enumerated under said section 751 of the Revised
Administrative Code, and penalized under section 2676 thereof, prescribed
after four (4) years. (Act No. 3326, section 2, as amended by Act No.
3585.) Consequently, the defense of prescription cannot be successfully
raised by the defense in this case.
The claim of defendant and appellant that, in prosecuting this case, the
complainant had been impelled by improper motives, in the sense that he
intended to make money out of it, as the Escudero Drug Store was known
to be the property of a wealthy family, in the opinion of the Court, is
completely unfounded, considering the well-established facts that herein
complainant has always been a friend of Dr. Leon Castillo, manager of said
drug store, and former classmate of the complainant; and there is no
evidence that herein complainant had not been on friendly terms with
Arsenio Escudero, owner of said drug store.
In view of the foregoing conclusions, it is deemed unnecessary to consider
the other questions raised by defendant and appellant in her motion for
reconsideration.
The Court declares that the preparation of one medicine for another, by a
pharmacy clerk, under a false name, whether it be through negligence,
accident or mistake, is punishable under the law.
Defendant and appellant Nena Tanalega Raymundo is found guilty of
having prepared one medicine for another, under a false name, in violation
of the provisions of section 751 of the Revised Administrative Code; and, in
accordance with the provisions of section 2676 thereof, she is hereby
sentenced to pay a fine of two hundred pesos (P200), with subsidiary
imprisonment in case of insolvency, and to pay the costs of this instance;
and with this modification the judgment of the Court of Appeals for
Southern Luzon is upheld, and the petition for reconsideration is
consequently denied. So ordered.
Moran, C.J., Jaranilla, Feria, Pablo, Bengzon, and Briones, JJ., concur.
Separate Opinions: HILADO, J., concurring:
Adopting by reference the clarification of my position as regards the
question of validity or nullity of such judicial proceedings herein as were
had in the Japanese-sponsored courts during the Japanese occupation of
Manila, as set forth at length in my concurring opinion in G.R. No.
49158, De Castro vs. Court of Appeals (75 Phil., 824), I am prepared to go
into the merits of this case.
And, doing so, I concur in the result of the majority opinion written by
Justice De Joya.
PARAS, J., with whom concurs OZAETA, J., dissenting:
The information charges the appellant with the crime of frustrated murder
through reckless imprudence. The Court of First Instance of Laguna
convicted her of frustrated homicide through reckless imprudence. The
Court of Appeals in turn found her guilty of slight physical injuries through
reckless imprudence and imposed a fine of two hundred pesos, with
subsidiary imprisonment in case of insolvency. In his motion for
reconsideration counsel for the appellant has raised the question of
prescription in that the offense of which she was convicted by the Court of
Appeals was discovered in March, 1941 (see testimony of offended party
regarding the statement of his physician, Dr. Antonio Sison, and the date,
March 15, 1941, of the report of the Institute of Hygiene on the analysis of
the drug); that in June, 1941, the offended party filed an administrative
complaint against Gesmundo Torres, the pharmacist in charge of the drug
store involved in this case; and that the information herein was filed only on
September 12, 1941. I am of the opinion that, on the supposition that the
appellant may be rightly convicted of slight physical injuries, the point
raised in the motion for reconsideration is well taken. In fact, it is admitted
by the majority of this Court (now called upon to pass on said motion) that
"the legal question raised by counsel for defendant and appellant appears
to be quite plausible, and defendant and appellant would appear to be
entitled to a judgment of acquittal." But no sooner had they made such
pronouncement than they thought of avoiding the issue of prescription by
finding the appellant guilty of a violation of the Pharmacy Law. I entertain
serious doubts as to whether the appellant may after technically being
acquitted of an offense punished under the Revised Penal Code, be
convicted of another offense punished under the Pharmacy Law. This is
not a case where there is merely an alleged variance between the offense
charged in the information and that established by the evidence so as to
make Rule 116, section 4, of the Rules of Court applicable. This is a case
where the appellant has to be convicted of another offense punished by a
law other than that relied upon in the information and under which she was
tried in the lower court, because the offense of which she had been
convicted by the Court of Appeals has prescribed. In other words, if the
latter offense had not prescribed the conviction therefor would undoubtedly
have been sustained on the merits.
Upon the facts of the case, I don't think the appellant can be held liable for
any offense. Although a pharmacy graduate, the appellant has not yet
passed the necessary board examination, and, at the time of the incident in
question, was not even a pharmacy clerk. She was merely an apprentice in
the drug store of which Arsenio Escudero was the owner, Gesmundo
Torres the pharmacist in charge, and Dr. Leon Castillo the manager. The
appellant did not have any dealing with the offended party. The evidence
for the prosecution clearly shows that the latter approached Doctor Castillo
who assured him that the store had all the ingredients needed for the
prescription; that instead of entrusting the task of compounding the
prescription to the pharmacist Gesmundo Torres, the appellant was
summoned from her home and ordered by Doctor Castillo to fill the
prescription after the latter had gathered and placed on a table all the
necessary drugs; that the appellant had simply made the mixture in the
proportions specified in the prescription, after which she delivered the
prepared medicine in capsules to Doctor Castillo who handed it over to the
purchaser.
The alleged offense was made possible by the inclusion of strychnine
sulphate in the mixture, when the ingredient called for in the prescription
was spartein sulphate. According to the testimony of Doctor Castillo and
the appellant, the two drugs are white, and the powder used in the
prescription was spartein sulphate. Undoubtedly, of any mistake was
committed, it must have been in the labeling, since the two ingredients
were contained in bottles of the same kind and shape. There is no proof
that the appellant was the person who placed the labels. I would under the
circumstances, lay the blame, first, on the pharmacist (Gesmundo Torres)
who must be presumed to have labeled the drugs in the store personally or
under his direction, and who has in fact been found guilty of anomalies in
connection herewith by the Board of Pharmacy, and, secondly, on the
manager (Doctor Castillo) who, instead of calling the pharmacist, gathered
the ingredients and ordered the appellant to compound the medicine. The
appellant cannot be charged with any culpable act or negligence, since her
participation was limited to the mechanical act of mixing the ingredients
previously placed by Doctor Castillo on the table, and it is not alleged that
the harm, if any, done to the offended party resulted from an error in
following the proportions shown in the prescription. The appellant had
every reason to believe that a physician, supposed to be versed in
medicine, had rightly selected the necessary ingredients, especially when it
is remembered that poisonous drugs are required to be kept in separate
cabinets which should be securely locked when not in use. Indeed, it may
be said that the ingredients mixed by her were the ones specified in the
prescription according to the labels of the drugs placed on the table,
because the presumption is borne out by the circumstance that said
ingredients were seen to be as represented by the containers not only by
the appellant but by Doctor Castillo who gathered them from the shelves.
And this presumption can be the only justification for the acquittal in the
trial court of Doctor Castillo, appellant's co-defendant in this case. The fact
that the appellant is a pharmacy graduate, if it is to have any bearing,
serves to strengthen the belief that her trained eyes could not make a
mistake as to the identity of the labeled ingredients she was mixing in
conformity with the prescription.
I have no quarrel with the majority in so far as they intend to convey the
idea and warning that pharmacists and their authorized assistants are to fill
prescriptions with utmost honesty and precision and will be held criminally
accountable for any slight error and carelessness; but I regret to see that
the appellant is convicted for having acted most regularly in a fitting
situation, while Doctor Castillo, who had usurped the duties of a
pharmacist, and Gesmundo Torres, the absent pharmacist in charge of the
drug store who, as already stated, can fairly be held responsible for the
labeling of the drugs and for not leaving a standing order in the store
prohibiting of the filling of prescriptions during his absence, remain
unpunished. The effect should not be mistaken for the cause.
PERFECTO, J., dissenting:
This is a most unusual case. Appellant Nena Tanalega had to face the
following situations for the same and absolutely identical facts:
(1) Accused of frustrated murder by poisoning through reckless
imprudence by the acting provincial Fiscal of Laguna on September 12,
1941, and of which she was not found guilty;
(2) Convicted of frustrated homicide through reckless imprudence and
sentenced to four months of arresto mayor by the Court of First Instance of
Laguna on October 12, 1942;
(3) Convicted of slight physical injuries through reckless imprudence and
sentenced to pay a fine of P200 by the Court of Appeals of Southern Luzon
under the Japanese regime on June 10, 1944, acquitting her, therefore,
of frustrated homicide;
(4) Pronounced entitled to a judgment of acquittal, under the Revised
Penal Code, in the majority resolution, which means she is acquitted
of slight physical injuries;
(5) Convicted once more, but this time of a violation of section 751 of the
Administrative Code by the same Supreme Court and in the same
resolution in which she is acquitted of slight physical injuries, and
sentenced again to pay a fine of P200.
We beg to disagree with the majority's action upon two important
grounds, viz.:
(1) Because, under the facts as declared proved whether by Judge Jose
Ma. Paredes, of the Court of First Instance of Laguna, by the Court of
Appeals of Southern Luzon, or by this Supreme Court, appellant is not and
cannot be guilty of a violation of section 751 of the Administrative Code.
(2) Because of her two former convictions and one acquittal, may be, it is
more exact if we say three acquittals, she cannot be put again in "jeopardy
of punishment for the same offense" without violating a constitutional
injunction in the Bill of Rights. (Section 1:20, Article III, Constitution of the
Philippines.)
There are three offenses defined in said section 751, namely:
(a) The one which may be committed only by a pharmacist, who is
declared responsible "for the quality of all drugs, chemicals, medicine and
poisons he may sell or keep for sale."
(b) The one committed by any person whomsoever "manufacture, prepare,
sell, or administer any prescription, drug, chemical, medicine, or poison
under any fraudulent name, direction, pretense."
(c) Any person who "adulterated any drug, chemical, medicine, or poison
so used, sold, or offered for sale."
As to offense (a), we are not concerned here because appellant is not a
pharmacist.
Offense (c) cannot also be considered, because here there is no question
as to any adulteration having been made, and it is neither pretended nor
had it been pretended that any drug, chemical, medicine, or poison,
differed from the standard quality or purity given in the United States
Pharmacopoeia.
Offense (b) is the one which we have to discuss, being the one which the
majority claim to have been committed by appellant, invoking to such effect
the case of Pineda (37 Phil., 457), where accused was convicted for selling
a drug under a "fraudulent name"; and in the present case the majority find
appellant guilty "of having prepared one medicine for another, under a
false name".
The most essential element of the offense and which individualizes it with a
character that cannot be conrounded is that the manufacture, preparation,
sale or administering of any prescription, drug, chemical, medicine, or
poison be made "under any fraudulent name, direction, pretense."
We wish to emphasize that the authors of the law did not content
themselves with using the adjectives "mistaken" or "erroneous". Not even
the stronger word "false". They have, undoubtedly, with deliberate
purposefulness, chosen instead the word "fraudulent".
We know that the idea involved in the adjective "fraudulent" implies
necessarily willful mistake, voluntary error, purposeful falsehood, in one
word, malice.
Synonymous with "fraudulent" are: guileful, crafty, wily, cunning, deceiving,
cheating, deceptive, insidious, treacherous, designing. The antonyms are:
honest, aboveboard, straightforward. There is fraudulence when there is
deliberate deceit, when there is fraud, which means trickery, an intentional
perversion of truth for the purpose of inducing another in reliance upon it to
part with some valuable thing belonging to him, or to surrender a legal
right; a false representation of a matter of fact (whether by words or
conduct, by false or misleading allegations, or by concealment of that
which should have been disclosed) which deceives or is intended to
deceive another so that he shall act upon it to his legal injury. (Webster's
New International Dictionary, 2d ed., 1938.) To be fraudulent, it must be
willful, malicious. The element of voluntariness is absolutely indispensable.
Applying this test to the facts in this case, there is absolutely no scintilla of
evidence to show that any act done by Nena Tanalega had ever been or
could be in any way fraudulent. There is even no showing of any motive
why she should act fraudulently. When she prepared the medicine, she
acted only in compliance with specific orders from Dr. Leon Castillo, the
physician who was the manager of the pharmacy. She made the mixture of
the component elements which were gathered on the dispensation table by
Doctor Castillo himself who, for some unknown reason, instead of sending
for Saturnino Gesmundo, the pharmacist of the drugstore, who was then in
his house instead of fulfilling his professional duties in the proper place,
sent for appellant. Doctor Castillo himself took two bottles from the shelves
and placed on the table with a cardboard box.
Doctor Castillo went even to the extent of checking up the prescription
presented by complainant Belarmino and correcting one figure thereof.
Nena Tanalega had no dealings at all with Silvino Belarmino.
Complainant's dealings were all had with Dr. Leon Castillo, who appears to
be his friend.
The fact that instead of the spartein sulphate mentioned in the prescription,
strychnine sulphate was mixed in the medicine, in the hypothesis that we
must accept prosecution's theory in this alleged substitution, there is
absolutely no evidence to the effect that Nena Tanalega had any
knowledge at all that the bottle which Doctor Castillo took from the shelves
and placed in the dispensation table supposed to contain spartein
sulphate, in fact, it did not, but strychnine sulphate. When Nena Tanalega,
therefore, took the ingredient from said bottle, she did it under the
conviction that she was taking spartein sulphate. She entertained that
conviction honestly, innocently, with unquestionable good faith, which is
the very opposite of malice in a fraudulent action.
Our conclusion to the effect that nothing fraudulent can be attributed to
Nena Tanalega is supported implicitly, although no less strongly and
convincingly, by the very text of the majority's resolution. No malicious act,
no fraudulent purpose, on deceitful trickery, is attributed to appellant. The
majority have abstained completely from applying the word "fraudulent" to
any or action of appellant. The strongest words used by the majority are
"false name", but this cannot be interchanged or confounded with
"fraudulent name". "False" is what is not true; but what is not true may be
either a committed in good faith or a misrepresentation maliciously made.
The first is innocent; the last is fraudulent.
The second ground for our dissent is no less stronger than the first.
When appellant was convicted of frustrated homicide through reckless
imprudence by the Court of First Instance of Laguna, she was in fact
acquitted of the crime of frustrated murder by poisoning through reckless
imprudence charged in the information. When she was convicted by the
Court of Appeals of Southern Luzon of slight physical injuries, she was in
fact acquitted of the crime of frustrated homicide through reckless
imprudence. Now she is again acquitted of slight physical injuries. All the
members of the Court agree that appellant, as it is stated in the resolution,
is "entitled to a judgment of acquittal under the Revised Penal Code", a
majority holding that she is entitled to the benefits of prescription of the
offense of slight physical injuries, and a minority — we among them —
because appellant did not commit any offense at all, she being completely
blameless of anything wrong, having acted in absolute good faith when she
complied with the order of Doctor Castillo, as becoming in an obedient and
loyal employee, as she was.
At any rate, for the same acts, under the same facts, under the same
information, and in the same case, appellant has been and is being put at
least twice in jeopardy of being punished for the same offense.
(a) She has been prosecuted and has been in jeopardy of punishment for
frustrated murder by poisoning through reckless imprudence, if any of the
courts which tried this case had accepted prosecution's theory as stated in
the information filed.
(b) For the same act, she in,as again placed in jeopardy of punishment for
frustrated homicide through reckless imprudence.
(c) For the same act, she again was placed in jeopardy of punishment for
slight physical injuries.
And now, (d) for the verv same act, she is not only put in jeopardy of
punishment for violation of section 751 of the Administrative Code, but she
is punished for it, as we have already shown, though evidently innocent of
said violation.
In this case, we have a startling example of a violation of one of the
fundamental injunctions of our Constitution in protecting the civil rights of
all persons living under the pale of our government.
The Constitution provides:
No person shall be twice put in jeopardy of punishment for the
same offense. If an act is punished by a law and an ordinance,
conviction or acquittal under neither shall constitute a bar to
another prosecution for the same act. (Article III, section 1:20,
Constitution of the Philippines.)
The purpose of this provision is to avoid punishment being meted to a
person more than once for the same criminal act, whether punished by just
one provision of law or by two or more provisions imposing different
penalties or using different nomenclature for purposes of definition.
The majority maintain that for the same act appellant may be punished
either for slight physical injuries, under the Penal Code, or for a violation of
section 751 of the Administrative Code, or both. As appellant must be, and
actually is, acquitted of slight physical injuries, the majority choose to
sentence her for a violation of the Administrative Code. As we understand
the Constitution, we regret to have to differ from this position, which we
believe fundamentally wrong and unjust.
We have the privilege of having taken part in the deliberations of the
Constitutional Convention and in all the proceedings of the Committee on
Style which, as a matter of fact, drafted the final text of the Constitution,
and we are in a position to state that, in approving the constitutional
injunction we have now under consideration, the members of the
Convention adopted it with the definite and avowed purpose — and we
have stated so clearly in our deliberations — that no man shall be
punished or placed in joepardy of of punishment for the same act, whether
in one or more criminal cases, whether punishable by one or more
provisions of law. The members of the Convention revolted against the
circumventing of the double jeopardy constitutional guarantee under two or
more legal provisions, thereby authorizing a man to be twice or more put in
jeopardy of punishment for the commission of the same offensive act.
We were then fully aware of the decisions of this Supreme Court which
uphold the unfair doctrine that for the same act a person may be
prosecuted and punished more than once if the same act is punishable
under an act of the legislature and under a municipal ordinance, based on
a fictitious or artificial duality or, even multiplicity, of sovereign
representations, as if the State, government, or sovereignty which
punishes an act under a legislative act is different from the one which
punishes the same act under a municipal ordinance. The distinction is
wholly preposterous and irrational. It is absurd to give the State a double
personality. It cannot be a Doctor Faustus or a Doctor Jekyll and Mr. Hyde
so it could wantonly make a mockery of a constitutional injunction enacted
by itself.
To wipe out the pernicious consequences of the wrong theory and to avoid
any further circumvention of the double jeopardy constitutional guarantee,
we purposely inserted the second sentence of the provision which says: "If
an act is punished hy law and an ordinance, conviction or acquittal under
either shall constitute a bar to another prosecution for the same act."
It should be noticed that in this provision, we have used twice the word
"act." The purpose was to emphasize the idea so as to avoid any
possibility of mistake or misunderstanding. We could have used the word
"offense" instead of the word "act", but we insisted in using the word "act"
because we wanted to correct the theory which permitted the same act to
be punished as two offenses, if punishable under an act of legislature or
under an ordinance, a theory which, furthermore, may result in
circumventing the constitutional injunction against the imposition of
"excessive fines" or "cruel or unjust punishment" because if municipal
councils are authorized to approve penal ordinances, there is nothing to
preclude the grant of the same power to provincial boards, to regional
councils, to district committees, and so on, giving way to a situation
wherein the same act may be made punisable under provisions enacted,
not only by the legislature, but also by so many local organs it may create
and authorize to pass penal provisions.
The injustice committed against appellant appears to be more serious,
making her situation highly pitiful, if we take into consideration that, being
innocent of any offense, she appears to be a victim of a series of official
and judicial blunders which amount to a veritable game of surprises not
wholly becoming in the administration of justice, which, as Voltaire once
said, is the most beautiful function of humanity.
She was made to answer for frustrated murder. Then she was convicted of
frustrated homicide. Then, again, it was neither frustrated murder nor
frustrated homicide, but for slight physical injuries that she was found
guilty. All these under the provisions of the Penal Code. But the last and
greatest surprise was yet to come. Without any intimation, either in the
information or in the two decisions rendered against her, of what finally is
about to happen, she is now, after being acquitted under the Penal Code,
convicted of a violation of section 751 of the Administrative Code, of which
neither the acting provincial fiscal, the judge of the court of first instance,
nor the justices of the Court of Appeals of Southern Luzon, had ever
dreamed.
against her without the benefit of any complaint or information, because in
the very same unique and invisible proceeding (the resolution here in
question), she is charged, proceeded against and, without any hearing and
without giving her a day in court to which she is by right entitled, convicted
and sentenced?
The fact is that she represents the weakest end of a triangle formed by the
persons who might be responsible for the suffering of Silvino Belarmino
due to a mistake in the use of ingredients in the prescription he bought.
The pharmacist, Gesmundo, who was found guilty by the Board of
Pharmaceutical Examiners, is one of the two strong angles. He was not
even included in the information in this case. He was the one charged with
the duty and responsibility of compounding the ingredients in the drug
store. It was his duty to stay there, but he was absent. The second strong
angle is represented by Dr. Leon Castillo, who was acquitted by the court
of first instance.
The remaining angle, the weakest, Nena Tanalega, is made to suffer as a
scapegoat, without the benefit of any escape, which was possible in the
Hebrew tradition. As is usual, the line is broken at the weakest point.
But if there is nothing that can be done to right the wrong perpetrated
against her, let this dissenting opinion be, at least, considered as a
contribution to her moral revindication.
Our vote is to set aside the decision which appellant seeks in her petition
for reconsideration and to acquit her of all criminal responsibility.

If all these highly competent public officials, all trained in law, appointed to
their respective high positions for outstanding qualities of legal preparation,
of mind, of character, of efficiency, never thought that appellant could be
found guilty of a violation of section 751 of the Administrative Code — and
they certainly will be among the more surprised by this unexpected turn of
events in these unusual proceedings — how could we expect defendant to
know that it is for said violation that she would be convicted? And what
kind of fairness there will be if she is not granted any opportunity, before
conviction, to face and defend herself from this new charge, instituted
G.R. Nos. L-32246-48 June 30, 1988
Appeals:
ARCADIO CORTEZ y VENGZON, PAULINO SAMPANG y
BUNGUE, petitioners, vs.
THE COURT OF APPEALS and THE PEOPLE OF THE
PHILIPPINES, respondents.
CORTES, J.:
Assailed in this petition for review are the decision of the Court of Appeals
dated May 26, 1970 affirming the conviction of petitioners for homicide in
Criminal Cases Nos. 4376 and 4377 and less serious physical injuries in
Criminal Case No. 4375, and the resolution of June 25, 1970 denying
petitioners' motion for reconsideration. This case was considered
submitted for decision on April 7, 1972.
Petitioners Arcadio Cortez, Paulino Sampang and one Benjamin
Villanueva were charged with the crime of murder for the deaths of
Escolastica Pingol and Luis Baltazar and frustrated murder for the injuries
sustained by Santiago Baltazar. After joint trial, the Court of First Instance
of Pampanga, Branch II, found Cortez and Sampang guilty of homicide in
Criminal Cases Nos. 4375 and 4377. In both cases they were sentenced to
suffer the indeterminate penalty of from 6 years and 1 day of prision
mayor to 17 years, 4 months and 1 day of reclusion temporal, ordered to
indemnify jointly and severally the heirs of Escolastica Pingol and Luis
Baltazar in the sum of 6,000 pesos and to pay each, one third of the costs.
In Criminal Case No. 4376, the trial court found Arcadio Cortez and
Paulino Sampang guilty of less serious physical injuries and sentenced to
four (4) months of arresto mayor and to pay each, one third of the costs.
Benjamin Villanueva was acquitted by the court in those three cases [pp.
252-253, rec.]
From the judgment, Arcadio Cortez and Paulino Sampang appealed to the
Court of Appeals. The latter court rendered the questioned decision, the
dispositive portion of which reads as follows:
Wherefore, finding no cogent reasons to reverse the judgment
appealed from, being in accordance with the law and evidence on
record, the same is hereby affirmed except the indemnity in the two
homicide cases, which is raised from P6,000.00 to P12,000.00 pesos
in each case and each accused appellant to pay 1/3 of the costs in this
instance. (p. 34, Rollo.)
The conviction was based on the following facts as found by the Court of
Between 10:00 and 11:00 o'clock on the night of October 21, 1961
while Santiago Baltazar, his wife Escolastica Pingol and his four sons
Ruben, Pablo, Orlando and Luis, all of tender ages, were sleeping in
their house at Barrio Mitla, Porac Pampanga, the said Santiago
Baltazar was awakened by the barking of the dogs )pp. 1-2, 9 t.s.n,
Nov. 27, 1962; pp. 12-13, t.s.n., Jan. 14, 1963). Then he heard a voice
which he recognized as that of Arcadio Cortez for he knew him long
before the incident, asking "Are the owners of the house in?" (pp. 2-3,
t.s.n., Nov. 27, 1962., pp. 12-13, Jan. 14, 1963). He peeped through a
hole and there on the ground he saw and recognized, for the moon
was very bright, another man, Paulino Sampang, whom he knew very
well before the incident (pp. 2, 9, t.s.n., Nov. 27, 1962; p. 14, t.s.n.,
Jan. 14, 1963). Being the owner of the house, Santiago Baltazar had
no alternative but to go downstairs, however, before he did that, he told
his wife who was also awaken [sic] by the barking of the dogs that
there were three persons in all near their house (pp. 3-4, t.s.n., Jan. 24,
1963).
Upon reaching the ground, Santiago Baltazar approached Paulino
Sampang who was armed with a .22 cal. gun and asked him: "What is
it you want, Abe?," to this question, Sampang replied: "If you want to
know, you come and see our Commander." When he said
"Commander he was referring to Arcadio Cortez who was under a
bullcart. (pp. 7-11, t.s.n., Jan. 24, 1963; p. 3, t.s.n., Nov. 27,1962).
When Santiago Baltazar approached Arcadio Cortez, the latter moved
away from him and holding a (G)arand with his two hands over his
head, told Baltazar: "Go back to your wife." Baltazar started moving
towards the house and upon reaching the foot of the stairs, he faced
them (Arcadio Cortez and Paulino Sampang). At this instance, Cortez
and Sampang began shooting at the house and also at him. Baltazar
was hit in the right thigh. He fell and lost consciousness (p. 4, t.s.n.,
Nov. 27, 1962).
When he regained consciousness, he saw nobody on the ground but
he heard a voice inside the house saying, "Go on, Go on." At the same
time he also heard a thud as if someone was hacking somebody with a
bolo. He tried to rise but he was shot again in the right ear and
consequently fell unconscious a second time (p. 6, t.s.n., Nov. 27,
1962.
When he regained consciousness again he felt that his son Pablo was
embracing him, saying "Father you have been wounded." And while he
heard the screaming of his other children, he managed to go under the
house and with a piece of rag he bound his wound. Then he crawled
upstairs. There he saw his wife and youngest son already dead. He
examined her body and found her having a bolo wound on her left
shoulder and a bullet wound on the breast (p. 6, t.s.n., Nov. 27, 1962),
People began coming to the premises. Among them was Vice-Mayor
Genaro Dimalanta to whom Santiago Baltazar gave two unfired bullets
which he found on the ground. They fell when the Garand held by
Arcadio Cortez jammed twice (pp. 6-7, t.s.n., Nov. 27, 1962, pp. 12, 17
t.s.n., Jan. 24, 1963).
The vice-mayor in turn brought Santiago Baltazar to the Pampanga
Provincial Hospital where he was hospitalized for two weeks. While
there he was visited by two P.C. men, one of them was Major
Lim. They asked him whom he suspected and he said he didn't
know, ... After having been discharged from the provincial hospital,
Baltazar was treated for more than two months in the clinic of Dr.
Benita Ayson in Manibaug Porac, Pampanga (pp. 6-8, t.s.n., Nov. 27,
1962.)
Medico-legal certificate issued by Dr. Bienvenido Ignacio of the
Pampanga Provincial Hospital (Exh. D, p. 9, roll of exhibits) disclosed
the following injuries sustained by Santiago Baltazar:
1. Gunshot wound, tragus through and through with the entrance below
and the exit, above the tragus.
2. Gunshot wound, slight of the superior portion of the right Pinna of
the ear.
3. Gunshot wound, 1 1/2 cm. in diameter antero medical portion of the
middle third of the right thigh with hematoma 2 inches above the
wound.
4. Probing direction of the wound upward, 3 1/2 inches in length.
5. X-ray of the thigh, right. — Metallic foreign body in the muscle
tissue, median portion of the buttocks.
Death certificate of Escolastica Pingol (Exhibit E) stated that the cause
of death as certified by Dra. Benita Ayson, was hemorrhage due to
total wounds (gunshot).
And the death certificate of Luis Baltazar (Exhibit F) disclosed that the
cause of death as found by the same physician wall internal
hemorrhage caused by trauma on the chest. (pp. 26-29, Rollo; Italics
supplied.)
1. In the instant petition, petitioners' main contention is that there was
insufficient Identification in law to sustain a judgment of conviction. They
assert that although Santiago Baltazar identified them in court on
November 27, 1962, he failed to reveal their names to P.C. investigators
on October 22, 1961, the morning after the crime was committed thus
showing that there was no proper Identification in law to sustain their
convictions.
In not a few decisions, this Court has ruled that delay in divulging the name
of the perpetrators of the crime, if sufficiently explained, does not impair
the credibility of the witness and his testimony [People v. Catao G.R. No.
L-9532,107 Phil. 861 (1961); People v. Bulan, G.R. No. L-14934, 108 Phil.
932 (1960); People v. Lao Wan Sing, 125 Phil. 43 (1966), 18 SCRA 1076;
People v. Salcedo, G.R. No. L-37080, 122 SCRA 94, 92 SCRA 933 (1953);
People v. Cabanit G.R. No. L-62030-31, Oct. 4,1985,139 SCRA 94; People
v. Cruz, G.R. No. L-68805 July 9, 1986, 142 SCRA 583; People v. Andres,
G.R. No. 75355, October 29, 1987; and People v. Renejane et al. G.R.
Nos. 76954-55, February 26,1988.]
To explain the delay, Baltazar testified as follows:
Q: A while ago in your answer to the cross-examination of counsel, you
mentioned that it was Paulino Sampang who fired the shot at you. Will
you tell the Court the reason why you did not mention Paulino
Sampang to the P.C. officers when they interrogated you in the
hospital?
A: Because I was not sure of the Identity of the interrogators, that is the
reason I did not name names. Now that I am sure before this
Honorable Court, I gave the names here.
COURT Q: Did you not say that somebody introduced himself as Major
Lim?
 A: Yes, Sir, he introduced himself as such, but I doubted his true
Identity. Besides I was confident I would recover from my wound and I
would be allowed to tell the whole story later on.
Q: What came to your mind when you said you doubted the Identity of
the investigator?
A: Because I was afraid that my family was still in the house and that
these persons might come back and harm them. That is the reason I
did not mention these people.
Q: Who are these persons you referred to?
A: Arcadio Cortez, Paulino Sampang and Benjamin Villanueva
The above explanation of Santiago Baltazar sufficiently accounts for his
failure to reveal immediately the identity of the culprits. It is both credible
and convincing. His fear and apprehension for the safety of his family and
his guarded suspicion of the identity of the investigators were reasonable
reactions of an ordinary man agitated by a frightful and shocking
occurrence. He had just witnessed the violent deaths of his wife and
youngest son. With the memory of the traumatic experience still fresh in his
mind, he reasonably entertained the belief that to reveal the identities of
the culprits would be tantamount to inviting their retribution.
Thus, in one case where the witnesses for the prosecution failed to divulge
immediately the identity of the criminals, This Court said:
The failure of the prosecution witnesses to report the malefactors to
police officers who investigated the crime immediately after the
occurrence is understandable, considering that the witnesses feared
for their lives as the killers were still at large and armed, and with the
shock of the ambush still fresh in their minds, perhaps they considered
the protection of the police inadequate. [People v. Sampang, March 31,
1966, G.R. No. L-15843, 16 SCRA 516.]
Moreover, the delay complained of is partly attributable to the acts of
petitioners and their counsel. The records show that the criminal complaint
was filed on October 27, 1961. Petitioners' counsel moved for the
postponement of the second stage of the preliminary investigation three
times, filed a motion to quash, postponed its hearing, changed his mind
and withdrew the motion to quash and with the conformity of petitioners,
asked that trial on the merits ensue. A period of four months had elapsed
by them. Petitioners cannot now complain of the belated identification
considering that they are partly to blame for it.
Notwithstanding Baltazar's credible explanation for the delay, still, this
Court examined the record to ascertain the positiveness of Baltazar's
testimony. After careful scrutiny, the Court finds that Baltazar's narration of
the facts is straightforward, direct and full of details which could not have
been the result of deliberate afterthought. As such it deserves full faith and
credence. He stated that he saw Sampang twice; first, when he peeped
through a hole, and second, when he went down the house. He even saw
Sampang point the gun at him before the latter fired. He also identified
Cortez whom he saw sitting under the bullcart and with who he conversed.
By quoting portions of the transcript of stenographic notes of Baltazar's
testimony, petitioners would like this Court to believe that when asked if he
knew of any suspects, Baltazar mentioned the names Eligio Ayson, Pablo
Bengco and Celestino Bengco as his suspects.
A careful examination of the records shows that the three were mentioned
by Baltazar not as his suspects but as the people who went to his home
requesting that his wife treat a sick person they brought with them [pp. 19-
22, t.s.n., Jan. 24, 1963.]
2. Petitioners next question the credibility of Baltazar's testimony. They
contend that even if the testimony is positive, it should not be believed as it
is uncorroborated and as it contains contradictions.
There is no law requiring that a testimony be corroborated in order to be
believed. It has been held that the testimony of a single witness if credible
and positive, is sufficient to produce conviction [People v. Lao Wan
Sing, supra, People v. Canada, No. 63728, September 15, 1986, 144
SCRA 121; People v. Tan, Jr., G.R. No. L-53834, November 24, 1986, 145
SCRA 614.1 Secondly, the contradictions and inconsistencies in Baltazar's
testimony refer merely to minor details which do not impair nor destroy its
probative value and which in fact even strengthen its reliability.
Above all, it is well settled in jurisprudence that the conclusions of the
lower court on the credibility of witnesses are entitled to great weight and
respect. Unless there are substantial facts and circumstances that have
been overlooked, which if considered might affect the result of the case,
such findings are generally not disturbed on appeal [People v. Lao Wan
Sing, supra; People v. Baluarte, G.R. No. L-31180-81, October 30, 1974,
60 SCRA 356, People v. Brioso, G.R. Nos. 72028-31, November 9,1987;
People v. Patog, G.R. No. 69620, September 24, 1986, 144 SCRA 429;
People v. Bautista, G.R. No. L-48606, July 11, 1986,142 SCRA 649; and
People v. Patola G.R. No. L-41265, February 27, 1986, 141 SCRA 397.]
The reason for the above stated rule is that the trial court is in a better
position to observe the deportment and demeanor of witnesses to
determine the veracity of their answers. No compelling reasons exist here
to justify a deviation from that rule.
3. Petitioners next contend that the failure of the court a quo to appreciate
the ballistics and chemistry reports as proof clearly tending to show their
innocence, is in grave abuse of its discretion.
This contention is untenable.
The evidence for the defense shows that six .30 caliber cartridges (Exhibit
1) recovered from the scene of the crime and a .22 caliber slug (Exhibit 2)
extracted from Santiago Baltazar's thigh were examined to determine
whether they came from eleven (11) Garand rifles and from one .22 caliber
rifle rounded up the day after the crime was committed.
The ballistics report states that the six .30 caliber cartridges were fired from
one gun but not from any of those confiscated and that due to foreign
marks, it cannot be determined from which gun the .22 caliber slug came
from.
The Court agrees with the Solicitor General that there is no certainty that
the fatal weapons were included in those confiscated [Brief for
Respondents, at p. 8.] The Courts of Appeals and the Trial Court therefore
did not err when they found that the ballistics report was "of no moment in
determining the guilt or innocence of the accused" [Court of Appeals,
Rollo, at p. 13.)
The defense likewise presented a report (Exhibit "7") on the negative
findings of a paraffin test taken on Arcadio Cortez five days after the
commission of the crime [Note that Paulino Sampang was not subjected to
a similar test, hence this defense is pertinent only with respect to Cortez.)
The Solicitor General contends that the paraffin test should not be
considered in determining the innocence of the accused as during the
period of five days the gunpowder residue may already have disappeared.
The contention is well taken.
The chemical expert who conducted the test was Major Jose Fernandez, of
the P.C. Central laboratory who testified as follows:
Q: According to the findings appearing in paragraph 7 (fiscal quoting
exhibit 7) miscroscopic examination on Arcadio Cortez, etc. reveal
the absence of gunpowder residue. That was your finding?
A: Yes, Sir. xxx xxx xxx
Q: To refresh your memory, I want to inform you that the crime
subject of this case was committed on October 21, 1961. It is a fact,
is it not, that paraffin residue can be removed from the hands by
washing with soft [sic] or by other chemicals?
A: Gunpowder may remain in the hands of the suspect within a
period of 72 hours or more, if there are so many rounds fired or four
days more.
Q: Even without doing anything on the hand, paraffin residue will
disappear from the hand after that period of time you have
mentioned?
A: Yes, Sir, so that washing with soft [sic] and water will not remove
it. Within 72 hours is the approximate time of the stay of the
gunpowder, because we have to consider if the person is perspiring.
xxx xxx xxx
Q: As I have said before, the crime subject matter of this case was
committed at about 10:00 o'clock on October 21, 1961. In Exhibit 3,
which is the letter of Col. Sangalang requesting your office to
examine the paraffin casts on both hands of Arcadio Cortez and
others, states that the same paraffin casts were taken at about 2300
hrs. on October 25, 1961 so that from 10:00 o'clock October 21,
1961, four days and one hour had already elapsed?
A: Yes, Sir.
Q: That four days and one hour is equivalent to 97 hours?
A: Yes, Sir.
Q: According to you, paraffin residue may disappear at approximately
in 72 hours?
 A: Maybe in 72 hours.
Q: So that if Arcadio Cortez and others fired guns at about 10:00 on
October 21, 1961 and their hands paraffin cast 97 hours thereafter,
the paraffin residue could not be found anymore?
A: No gunpowder may be found anymore.
Q: You said that if a person fires a gun in door [sic] without doing
anything, in 72 hours the powder residue will disappear?
Supposing said person at the same time fires in door [sic] several
times, will the powder residue stay more than 72 hours?
A: Yes, sir.
Q: In your experience, as a chemical expert, have you come across
cases where paraffin cast disappear in less than 72 hours?
A: Yes, sir, in open outdoor, naturally, little residue will be deposited
and when there is little gunpowder it may not be impressed on the
hands of the firer.
Q: In those cases where the firing was done in open air, the paraffin
residue disappeared in one day or two days?
A: This is a factor of not having gunpowder in the hands of the firer
when the wind is strong.
Q: You came across cases where the person fired a gun and
examined him within one day and you did not find any paraffin
residue?
A: Yes, Sir in cases where there was strong wind. (tsn, pp. 3840,
January 13, 1964).
A careful scrutiny of the report and testimony shows that the paraffin test is
of weak probative value, as it was taken five days after the incident
happened, within which time the traces of gunpowder may already have
been erased.
4. Petitioners next assail the trial and appellate court's reliance on their
extrajudicial confessions which are alleged to have been executed
involuntarily, hence inadmissible.
The confessions were taken on October 21, 1961, long before the 1973
Constitution took effect. The prevailing rule then was that extrajudicial
confessions were presumed in law to be voluntary and thus admissible.
The burden of overcoming that presumption rested on the accused. This
rule was subsequently reversed such that, on the prosecution was
imposed the burden of first proving that constitutional guarantees were
observed before an extrajudicial confession may be admitted in evidence
[People v. Jara, G.R. no. 61356-57, September 30, 1986, 144 SCRA 516.1
The shift in the burden is the result of the adoption of the Miranda v.
Arizona rule [384 U.S. 436 (1966)] in section 20 of the 1973 Constitution.
This rule however has no retroactive effect [Magtoto v. Manguera, G.R.
No. L-37201-02, March 3, 1975, 63 SCRA 4, citing U.S. V. de los Santos,
54 Phil. 329; People v. Page, G.R. No. L-37507, June 7, 1977, 77 SCRA
348; People v. Castaneda, G.R. No. L-32625, August 31, 1979, 93 SCRA
56; People v. Garcia, G.R. No. L-40106, March 13, 1980, 96 SCRA 497;
People v. Zea, G.R. No. L-23109, June 29, 1984, 130 SCRA 77; People v.
Banaan, G.R. No. L-49385-87, July 2, 1986, 142 SCRA 410 People v.
Ribadajo, G.R. No. L-40294, July 11, 1986,142 SCRA 637; People v.
Petenia, G.R. No. L-51256, August 12, 1986, 143 SCRA 361; People v.
Pia, G.R. No. L-59604, November 14, 1986, 145 SCRA 581 and People v.
delos Santos, G.R. No. L-35598, May 29, 1987, 150 SCRA 311.]
As the confessions here were made before the effectivity of the 1973
Constitution which incorporated the Miranda rule, they are presumed
voluntary until the contrary is proved by the petitioners.
To rebut the presumption, the defense introduced as evidence the medical
certificates executed by Dr. Marcelino Benosa and his testimony that he
examined the accused a day after they were apprehended. When he took
the stand, he averred that he found contusions and swellings on the bodies
of the accused for which he prescribed certain medicines. He also stated
that it was Atty. Clemente Soriano, counsel for the accused, who
recommended him to relatives of the accused to examine the latter and
that he had personally known Atty. Soriano since 1945 as they were
townmates, being both from Macabebe, Pampanga. In addition, he also
said that his practice was in Angeles, Pampanga, and that he went to
Porac and left his clinic just to examine the condition of the petitioners. The
defense did not attempt to explain why they did not avail of the services of
a physician from Porac nor did they show that there was none available.
On the other hand, the prosecution presented as witness the Clerk of
Court, Mr. Marcelo Mendoza, who testified that when the accused were
brought before him, they never complained to him of any maltreatment;
that he translated and explained to them each of the questions propounded
and the answers they had given in their statements and that afterwards,
the accused swore to the truth of the contents. of their confessions, and
signed them in his presence. This testimony was corroborated by those of
the investigators who took the statements of the accused and who
vehemently denied maltreating them.
In view of the Clerk of Court's credible testimony and the admission of Dr.
Benosa during the trial that the contusions he found may not have been
caused by the alleged maltreatment of the accused, this Court finds that
the presumption of voluntariness; has not been satisfactorily overcome.
More importantly, the statements are replete with details which only the
accused could have known and which the investigators could not have
supplied, as follows: that Escolastica Pingol or "Tecang" was a witch; that
although they knew that such could not be believed by courts of law, they
knew for a fact, that she was victimizing certain members of the
community; that Cortez was in fact a victim of her witchery, as was
Sampang's mother; and that they went to Tecang's house only to scare her
but when they heard her and her family shouting for help, they started
firing. The confessions also reveal that they utilized Benjamin Villanueva to
guide them to Tecang's house as well as the direction they took in getting
there. All these details are earmarks of voluntariness.
Alibi is easily fabricated such that courts must accept it only with great
caution. For such defense to prosper, it is not enough that the accused
were somewhere else but that it must be clearly shown that it was
physically impossible for them to have been at the place of the crime or its
immediate vicinity at the time of its commission [People v. Perante Jr.,
G.R. Nos. L-63709-10, July 16, 1986, 143 SCRA 56; People v. Gapasin,
G.R. No. L-52017, October 27, 1986, 145 SCRA 178; and People v.
Santillan, G.R. No. 68331, January 29, 1988.] In this case, the places
where petitioners were at the time of the incident and the place where the
crime was committed are within walking distance.
Furthermore, the defense of alibi must fail in view of the clear and positive
Identification made by Baltazar. He had known Cortez and Sampang for a
considerable period of time. There was no showing that he had any grudge
or improper motive to foist such a serious accusation upon them and
fabricate his testimony.
On the totality of the evidence therefore, the Court finds the guilt of the
petitioners to have been proved beyond reasonable doubt.
WHEREFORE the petition is denied, and the decision of the Court of
Appeals affirmed, except the indemnity in the two homicide cases which is
hereby raised in each case to P30,000.00.

5. Contrary to petitioner's contention, corpus delicti here has also been

proven. As early as People v. Mones [58 Phil. 5 (1933)], this Court has
held that corpus delicti is the fact of specific loss or injury and that in
homicide, the fact of death, whether or not feloniously caused, is
the corpus delicti. This has been sufficiently shown by the death
certificates of the victims and the testimony of Santiago Baltazar. With
sufficient proof of the corpus delicti, the extrajudicial confessions are thus
sufficient to convict Cortez and Sampang of homicide and less serious
physical injuries.

Nonetheless, even if We were to disregard the extrajudicial confessions,

the positive Identification made by Santiago Baltazar is still ample evidence
to establish the guilt of the accused to a moral certainty.

6 Lastly, we consider the defense raised by petitioners. Cortez claimed that

he was in a neighboring sitio guarding his growing crops against wild pigs
while Sampang alleged that he was at home attending to his sick child.
G.R. No. L-32103 September 28, 1984
PEOPLE OF THE PHILIPPINES, vs.
JOSE BUENSUCESO, RODOLFO AGUILAR, CONRADO IZON and
ERNESTO JOSON
MELENCIO-HERRERA, J.:
This is an appeal from the Decision of the then Court of First Instance of
Bataan, sitting in Balanga, in Criminal Case No. 6182, convicting Jose
BUENSUCESO, Rodolfo AGUILAR, Conrado IZON and Ernesto JOSON,
all members of the police force of Dinalupihan, Bataan, of Murder, and
sentencing "said accused each to suffer the penalty of RECLUSION
PERPETUA; to jointly and severally indemnify the heirs of the deceased
Pariseo Tayag in the amount of P12,000.00; and each to pay the
proportionate costs." 1
The Information filed against said four accused together with two other
policeman, Eduardo MALLARI and Fidel DE LA CRUZ, charged them with
Murder as follows:
That on April 21, 1967 at about 5:00 o'clock in the afternoon at
Dinalupihan, Bataan, Philippines, and within the jurisdiction of this
Honorable Court, the abovenamed accused by conspiring,
confederating and helping one another, with intent to kill, treachery and
by taking advantage of their official positions and superior strength,
using their service revolvers did then and there willfully, unlawfully and
feloniously shoot one PARESEO TAYAG Y ANGELES hitting him in
the different parts of his body inflicting upon his person several gunshot
wounds which caused his death to the damage and prejudice of his
heirs. 2
After pleas of not guilty and after due trial, accused BUENSUCESO
SUCESO, AGUILAR, IZON and JOSON were found guilty of Murder and,
as aforestated, were sentenced to suffer reclusion perpetua.
MALLARI and DE LA CRUZ were both absolved on reasonable doubt.  3
Three separate Briefs were filed: the first was for IZON and JOSON; the
other was for BUENSUCESO; and the third one was for AGUILAR. The
Solicitor General filed a consolidated Brief.
The prosecution synthesized the occurrence as follows:
Between 5:00 and 6:00 o'clock in the afternoon of April 21, 1967, while
prosecution witness Apolonio Salvador was in his small store beside
the market near the municipal building of Dinalupihan Bataan, he saw
Patrolman Rodolfo Aguilar and Pariseo Tayag con. conversing as they
were walking side by side, each resting his hand on the shoulder of the
other, going towards the municipal building (pp. 22-24, tsn, July 25,
1967). Pat. Aguilar was trying to take the fan knife of Tayag, but could
not take it because Tayag prevented him from taking it by gripping it
with his right hand and swaying it left and right as ff playing (p. 24,
tsn, Id.). Tayag did not want to , the give knife because he was not
making any trouble (p. 25, tsn., Id.). At the suggestion of Pat. Aguilar,
Tayag readily agreed to go to the office of the chief of police (pp. 25,
26, tsn, Id.).
When they arrived in the said office, there were two persons there,
namely, Enrique Mallo and Pat. Eduardo Mallari (p. 27, t.s.n. Id.). Pat.
Mallari was then the municipal guard and in uniform (p 8, tsn., July 26,
1967). Subsequently, a heated argument took place between Pat.
Aguilar and Tayag arising from the latter's refusal to give his fan knife
to the former (p. 28, tsn July 25, 1967). later on, Pat. Fidel de la Cruz
appeared at the doorway (pp. 30, 32, tsn Id.).
Thereafter , when Tayag was about to leave the office, Chief of Police
Adriano Canlas arrived and inquired what the trouble was an about (p.
31, tsn, Id.). Pat. Aguilar answered that the two of them (Aguilar and
Canlas) had been cursed by Tayag (p. 32, tsn Id.). Tayag asserted that
he did not curse either of them, but that Aguilar was to force him to
give up his knife (p. 32, tsn, Id.). Thereafter Tayag hurriedly left the
office. He was followed by Pat. Aguilar, Mallari and de la Cruz who
walked fast, with Aguilar and Mallari holding guns (p. 33, tan, Id.). After
having gone out of the building, Pat. Aguilar fired his gun upward (p.
34, tsn, Id.).
Hearing the shot, Tayag turned about, then retreated backwards until
he reached the fence of the plaza (Id.). When Tayag was near the
wooden fence about a knee high, Pat. Aguilar aimed his gun at Tayag
and fired, hitting him above the right knee (pp. 34, 36, tsn, Id.). Tayag
continued to run towards his house followed by de la Cruz without a
gun (p. 36, tsn, Id.). Pat. Mallari went to the waiting shed to intercept
Tayag (Id.). Pat. Mallari had a gun at that time (p. 37, tsn, Id.). Pat.
Aguilar followed Mallari in the shed and they took opposite sides of the
road, that is, Rizal Street, in front of the Catholic Church (Id.). Then
there were several successive gun shots, more or less nine in number
(p. 39 tsn, tsn, Id.).
After the commotion, Tayag was seen lying prostrate near the back of
a jeep parked at the corner of Rizal and San Juan Streets, about 60
meters away from the municipal building (p. 38, tsn. Id.). Pat. de la
Cruz took the knife from Tayag and gave it to Pat. Jose Buensuceso
(p. 39, tsn, Id.), who at the precise moment had his revolver tucked in
its holster (p. 42, tsn, Id.). Pat. Conrado Izon and Pat. Ernesto Jose
were also seen in the immediate vicinity of the crane scene by witness
Apolonio Salvador (Id.). Witness did not know, however, where Pat.
Izon and Joson came from (p. 45, tsn, Id.). Both had their guns in their
holsters (Id.).
Later, at about 5:50 that afternoon of April 21, 1967, Sgt. Romualdo-
Espiritu of the P.C. stationed at Balanga Bataan, arrived at the corner
of Rizal and San Juan Bautista streets in Dinalupihan (pp. 1, 2, tsn,
July 26, 1967). He noticed a commotion in the plaza and as a peace
officer he inquired from people around what was going on (p. 2, tsn,
July 26, 1967). He was told that a certain person was shot (Id.). He
went to the place where people were converging and found Pariseo
Tayag dead lying down on a pool of blood, some 10 to 15 yards from
the corner of Rizal and San Juan Bautista Streets (Id.). He ordered that
deceased be brought to the municipal health center where a cursory
inspection of the cadaver was made by the Municipal Health Officer,
Dr. Sta. Maria (Id.) and photographs (Exhs. "F" and "G", p. 6, tan, Id.)
taken of the deceased (p. 5, tsn, Id.).
Thereafter, he proceeded to the municipal building and investigated (p.
2, tsn, Id.). Upon learning that some police officers were involved he
investigated the suspects. He first saw Pat. Aguilar who was then
recounting the incident to Pat. de la Cruz (Id.). He asked for his service
pistol inspected the cylinder and found three (3) empty shells and three
(3) live ammunitions (Id.). He smelled the barrel Of the gun and found
out that it had been fired (Id.). Then he proceeded to the office of the
chief of police (p. 3, tsn, Id.) Moments later, Pat. Buensuceso arrived
(Id.). He asked for Buensuceso's service revolver, inspected the
cylinder, and found four (4) empty shells and two (2) live ammunitions
(Id.). He smelled the barrel of the gun and found that it also had been
fired. He also asked for the service revolver of Pat. de la Cruz but the
latter manifested that he had no firearm at the time but pointed to Pat.
Mallari from whom he (Pat. de la Cruz) got a pistol while they were on
the ground door of the municipal building (Id.).
Sgt. Espiritu then proceeded to the Patrol base or detachment of the
161st PC Co. at Layac Dinalupihan, Bataan and from there he reported
the incident by calling up headquarters in Balanga, Bataan (Id.), and at
the same time asked for investigators to come over (Id.). Later on,
while Sgt. Espiritu was preparing an on-the-spot report in the office of
the Dinalupihan Police Dept. Capt. Antonio Resurreccion of the 161st
PC Co. arrived with his investigators (Id.). Sgt. Espiritu turned over to
Capt. Resurreccion the revolvers of Aguilar and Buensuceso, which
are both Smith and Wesson Cal. 38, Sgt. Espiritu Identified in court as
Exhibit "C"a Smith and Wesson cal. 38 revolver, with Serial No. K-
617092 as belonging to Pat. Buensuceso, and as Exhibit 'D' the other
revolver with Serial No. C-73130, Cal. 38, as belonging to Pat. Aguilar
(p. 4, tsn, July 26, 1967).
Jose Penaflor, Acting Chief of Police of Dinalupihan, Bataan (pp 12,
13, 14, tsn, Id.) and the municipal treasurer, Ludovico Simpao (pp. 17,
18, tsn, Id.), testified that on the basis of the memorandum receipt and
records in their offices (Exhibits "H", "I", "J"), the respective firearms
issued to the policemen of Dinalupihan, Bataan, bear the following
serial numbers:
Eduardo Mallari Serial No. L- 597615
(Exh. H-1; J-4)
Rodolfo Aguilar Serial No.C 73130
Jose Buensuceso Serial No. K-617092
(Exh H-3; J-3)
Ernesto Joson Serial No. K-617201
(Exh. H-4; J-3)
Conrado Izon Serial No. 73534
(Exh. H-5; 1-1)
The deceased Pariseo Tayag died of gunshot wounds as found by Dr.
Ceferino Cunanan, a medico-legal officer of the National Bureau of
Investigation. His findings and conclusions are reflected in his
necropsy report No. N-67-445 (Exh. L; p. 5, tsn., Aug. 15, 1967), as
follows:
1. Entrance located at the scapular region, left, directed forward slightly
upward and medially; ...
2. Entrance located at the infrascapular region, left, * * * directed
forward, upward and medially; * * * ...
3. Entrance located at the thigh, right, distal 3rd, antero-lateral aspect,
*** directed backward, downward and laterally; ...
4. Entrance located at the leg, right, proximal ward, antero-lateral
aspect * * * directed upward, backward and laterally; * * * fracturing
communitedly the upper 3rd of the tibia and a slug was recovered at a
point at the level of the knee, * * *
Dr. Cunanan testified that gunshot wound No. 4 is not a through and
though wound, but instead the bullet was recovered with its course at
Exhibits Q-3 and S (pp. 7, 8, tsn, Aug. 15, 1967). The bullet is
preserved in their office and the photo of the slug is shown in Exhibits
T and T-1 (p. 8, tsn, Id.). He explained that gunshot wounds Nos. 1 and
2 were inflicted by a .38 caliber bullet (p. 8, tsn, Id.), while wound No. 3
may have been inflicted by a .32 or .38 cal. bullet. Wound No. 1 must
have been fired by an assailant behind and to the left of the victim (p.
9, tsn, Id.). The shot causing Wound No, 2 must have been fired by an
assailant while in the same position when Wound No. 1 was inflicted
on the victim. Wound No. 3 is located on the lower extremity which is
movable part of the body and could be inflicted on the victim assuming
different positions. Wound No. 4 could be inflicted when the victim was
lying down and assailant was in a lower position than the victim both
standing erect face to face. Wounds No. 1 and 2 were fatal. Wound
No. 1 involves the heart and lungs and Wound No. 2 involves the
lungs, spleen and the liver (pp. 9, 10, tsn, Id.).
Lunges diphenylamine tests were made on the dorsal aspect of both
hands of the accused from the wrist joint to the fingertips, which
produced the following results, to wit:
Chemistry Report No. G-67-204-Conrado Izon
Left Hand ——— Positive
Right Hand ——— Negative
Chemistry Report No. G-67-203-Fidel de la Cruz
Negative results
Chemistry Report No. G-67-202-Ernesto Joson
Left Hand ——— Positive
Right Hand ——— Negative
Chemistry Report No. G-67-200 — Eduardo Mallari
Negative results.
Filemon Mamaril, Supervising Ballistician and Chief, Forensic Ballistic
of the National Bureau of Investigation, who conducted a ballistic
examination of the firearms and shells and ammunitions received from
the office of the provincial fiscal of Bataan in connection with this case,
rendered his Ballistic Reports Nos. B-41-867 and B-44-867 (Exh. V,
pp. 4, 5, tsn, April 17, 1968).
Exhibit W which is a deformed jacketed bullet which was received from
Dr. Cunanan (p. 6, tsn, Id.), showed that it was fired from the Smith
and Wesson revolver, Cal. 38, bearing Serial No. K-617092 (p. 7, tsn,
Id.). He also found that the empty shells, Exhs. "Y", "Y-1" and "Y-2"
and "Y-3" were fired from the revolver marked Exh. "C" (Id.). The three
empty shells, Exhs. "Y-4", "Y-5" and "Y-6" were fired from a Smith and
Wesson revolver, Cal. 38, with Serial No. C-73130 (pp. 123, 124, tsn.,
April 18, 1969) marked Exh. "D" (p. 4, tsn., July 26, 1967).  4
The testimony of one of the accused, Eduardo MALLARI, in his defense
was summarized by the Trial Court thus:
In his defense, the accused Eduardo Mallari testified that at about 5:30
o'clock in the afternoon of April 21, 1967, he closed the office of the
Chief of Police on the 2nd floor of the municipal building. Then he went
down to the office of the Deputy Chief of Police on the ground floor.
While descending to the ground floor, he saw a person in the office of
the Deputy Chief of Police facing Cpl. Aguilar. The person was holding
a knife and cursing the Chief of Police. Suddenly the person raised his
right hand with the knife stating, "You can only get this from me,
Aguilar, when I am already dead." Then the person and Aguilar
pursued one another around the table, the person with a knife as the
pursuer. He saw the person pushed aside Aguilar and stabbed him but
Aguilar was not hit. Thereupon Aguilar ran towards the outside of the
 building. The person followed Aguilar. At this juncture Pat. Fidel de la
Cruz arrived. De la Cruz asked Mallari what happened. As De la Cruz
and Mallari were conversing, Mallari heard a shot fired outside the
building. Thereupon, De la Cruz grabbed Mallari's gun and rushed
outside the building. Mallari also ran outside of the building. He saw the
person, whom he later recognized as Pariseo Tayag, running away. He
heard other shots, not less than five of them. He was short distance
from the main door of the municipal building and he saw a commotion
of the people. Fidel de la Cruz returned Mallari's gun after the shooting
and when they were already inside the building. Thereafter Sgt.
Romualdo Espiritu of the P.C. arrived. Sgt. Espiritu got Mallari's gun
from De la Cruz, smelled it, then handed it back to De la Cruz, saying:
"It was not fired".
Another defense witness, Corazon Cruz, a waitress, testified that the
deceased together with some companions had drunk beer inside Freddie's
Restaurant before the shooting incident. After her testimony, the defense
without presenting the other accused on the witness stand, offered its
evidence and submitted the case for decision.
Accused-appellants, in their respective Briefs, assigned the following
errors:
1) By IZON and JOSON:
I THE LOWER COURT ERRED IN HOLDING THE APPELLANTS
CONRADO IZON AND ERNESTO JOSON GUILTY OF THE CRIME
CHARGED IN THE INFORMATION PENALIZED UNDER ARTICLE 248
OF THE REVISED PENAL CODE.
II THE LOWER COURT LIKEWISE ERRED IN FINDING THE
APPELLANTS IZON AND JOSON AS CO. PRINCIPAL IN THE
COMMISSION OF THE CRIME.
2) By BUENSUCESO:
I THE LOWER COURT ERRED IN GIVING UNDUE CREDENCE TO
THE NECROPSY REPORT EXHIBIT L) OF DR. CEFERINO
CUNANAN AND THE BALLISTICS REPORT (EXHIBIT V) OF THE
BALLISTICIAN FILEMON MAMARIL, AS WELL AS THEIR
TESTIMONIES AND IN RELYING THEREON OR MAKING THE
SAME AS ITS BASIS FOR CONCLUDING THAT THE SLUG
(EXHIBIT W) WHICH WAS ALLEGEDLY RECOVERED FROM THE
KNEE OF THE ALLEGED VICTIM WAS FIRED FROM THE
REVOLVER (EXHIBIT C) OF THE APPELLANT JOSE
BUENSUCESO.
II THE TRIAL COURT ERRED IN RULING THAT THE TWO FATAL
WOUNDS WHICH CAUSED THE INSTANTANEOUS DEATH OF THE
ALLEGED VICTIM WERE INFLICTED BY BULLETS FIRED FROM
THE GUNS OF THE APPELLANTS JOSE BUENSUCESO, RODOLFO
AGUILAR, CONRADO IZON and ERNESTO JOSON.
III THE COURT BELOW ERRED IN CONVICTING THE APPELLANT
JOSE BUENSUCESO FOR MURDER NOTWITHSTANDING ITS
OWN FINDING THAT THERE WAS NO CONSPIRACY
ESTABLISHED BY THE PROSECUTION, ASIDE FROM THE FACT
THAT THERE WAS ABSOLUTELY NO EVIDENCE ON RECORD TO
SHOW THAT HE ACTUALLY PARTICIPATED IN THE KILLING OF
THE VICTIM.
3) By AGUILAR:
I THE LOWER COURT ERRED IN HOLDING THAT THERE WAS
TREACHERY, MORE SPECIFICALLY ON THE PART OF
DEFENDANT AGUILAR THAT WOULD QUALIFY THE CRIME TO
MURDER.
II THE LOWER COURT ERRED IN HOLDING THAT THE ACCUSED
AGUILAR THOUGH ACTING INDEPENDENTLY SHOULD BE
LIKEWISE HELD LIABLE AS THE REST OF THE ACCUSED FOR
THE DEATH OF THE VICTIM.
III THE LOWER COURT ERRED IN NOT HOLDING THAT
DEFENDANT WAS MERELY ACTING IN LEGITIMATE SELF-
DEFENSE WHEN HE INFLICTED THE WOUND ON THE VICTIM.
The assigned errors find no support from the evidence on record.
Firstly, all four appellants were seen by Apolonio Salvador, one of the
prosecution eyewitnesses, to have been present at the crime scene at the
nine of the incident, armed with .38 caliber service revolvers. 
5
Secondly, the autopsy conducted on the body of the victim showed that he
died as a result of four (4) gunshot wounds,   two of which were fatal.   The
6 7
examining physician testified that the wounds were inflicted by .38 cal.
revolvers and that a deformed bullet, also .38 cal., which caused wound
No. 4, was recovered (Exhibit "W" ).
Thirdly, upon an on-the-spot inspection by PC Sgt. Romualdo Espiritu soon
after the incident, he found that the service pistol of AGUILAR had been
fired and that its cylinder contained three (3) empty shells and three (3) live
ammunitions. Similarly, he smelled the barrel of BUENSUCESO's revolver
and found that it, too, had been fired and that its cylinder had four (4)
empty shells, and two live ammunitions.  8
Fourthly, ballistic examination disclosed that the deformed jacketed bullet
recovered from the knee of the victim was fired from a .38 cal. Smith &
Wesson revolver, with Serial No. K-617092, (Exhibit "C") issued to
BUENSUCESO; that the four (4) empty shells (Exhibits "Y", "Y-1", "Y-2",
and "Y-3") were fired also from BUENSUCESO's firearm; while the three
(3) other empty shells (Exhibits "Y-4", "Y-5", and "Y-6") were fired from
AGUILAR's Smith & Wesson revolver, cal. 38, with Serial No. C-73130
(Exhibit "D"). 
9
Fifth, the Chemistry Reports on the paraffin tests showed
the following results, particularly in respect of IZON and
JOSON:
Chemistry Report No. G-67-204 — Conrado Izon
Left Hand — Positive
Right Hand — Negative
Chemistry Report No. G-67-203 — Fidel de la Cruz
Negative Results.
Chemistry Report No. G-67-202 — Ernesto Joson
Left Hand — Positive
Right Hand — Negative
Chemistry Report No. G-67-200 — Eduardo Mallari
Negative Results.  shown by the number of assailants, which circumstance, however, is
The positive finding, insofar as IZON and JOSON are concerned, confirm
prosecution witness Apolonio Salvador's declaration that they were in the
vicinity of the crime at the time of its occurrence. Although they had their
guns in their holsters when Salvador saw them the fact remains that, upon
examination, their left hands were positive for nitrates.
AGUILAR's plea of self-defense is evidently unmeritorious. AGUILAR
followed the victim right after the latter hurriedly left the office of the Chief
of Police. Once outside the building, AGUILAR fired his gun upward. And
when the victim turned around and retreated backwards, AGUILAR fired
upon him hitting him above the right knee.
If, as contended, the victim had thrust his knife at AGUILAR inside the
Municipal Building malting the former the unlawful aggressor, to be sure,
the incident would have happened there and then and not some 60 meters
away from the building. We discredit AGUILAR's testimony that it was the
victim who had pursued him rather than the other way around.
BUENSUCESO's contention that there is serious doubt that the body
autopsied was that of the victim hardly deserves even passing
consideration.
All told, there is ample evidence establishing that AGUILAR,
BUENSUCESO, IZON, and JOSON had fired their guns at the victim
hitting him on different parts of his body. True, it has not been established
as to which wound was inflicted by each accused. However, as this Court
has held, where the victim died as a result of wounds received from
several persons acting independently of each other, but it has not been
shown which wound was inflicted by each assailant, all of the assailants
are liable for the death of the victim. 11
The crime is Murder, qualified by treachery. The victim was already
retreating backwards until he reached the fence of the town plaza when
AGUILAR fired his revolver at the former hitting him above the right
knee. 12 Notwithstanding that he was already hit and wounded, and
possibly immobilized, he was still subjected to successive shots as shown
by the wounds that he had received, even at his back. Certainly, the
means employed by the accused-appellants tended directly and specially
to insure the execution of the crime without risk to themselves arising from
any defense which the victim might have made. 13
The killing of the victim was aggravated by abuse of superior strength as
absorbed by treachery. 14 No other circumstances modify the commission
of the crime.

WHEREFORE, the judgment appealed from is hereby AFFIRMED, except

that the indemnity to the victim's heirs is hereby increased to P30,000.00.
G.R. No. 188551               February 27, 2013
EDMUNDO ESCAMILLA y JUGO, Petitioner, vs.
PEOPLE OF THE PHILIPPINES, Respondent.
SERENO, J.:
BACKGROUND
The facts of this case, culled from the records, are as follows:
Petitioner has a house with a sari-sari store along Arellano Street,
Manila.5 The victim, Virgilio Mendol (Mendol), is a tricycle driver whose
route traverses the road where petitioner's store is located. 6
Around 2:00 a.m. of 01 August 1999, a brawl ensued at the comer of
Estrada and Arellano Streets, Manila. 7 Mendol was about to ride his tricycle
at this intersection while facing Arellano Street. 8 Petitioner, who was
standing in front of his store, 30 meters away from Mendol, 9 shot the latter
four times, hitting him once in the upper right portion of his chest. 10 The
victim was brought to Ospital ng Makati for treatment11 and survived
because of timely medical attention. 12
The Assistant City Prosecutor of Manila filed an Information13 dated 01
December 1999 charging petitioner with frustrated homicide. The
Information reads:
That on or about August 1, 1999, in the City of Manila, Philippines, the said
accused, with intent to kill, did then and there wilfully, unlawfully and
feloniously attack, assault and use personal violence upon the person of
one Virgilio Mendol, by then and there shooting the latter with a .9mm
Tekarev pistol with Serial No. 40283 hitting him on the upper right portion
of his chest, thereby inflicting upon him gunshot wound which is
necessarily fatal and mortal, thus performing all the acts of execution which
should have produced the crime of Homicide as a consequence, but
nevertheless did not produce it by reason of causes, independent of his
will, that is, by the timely and able medical assistance rendered to said
Virgilio Mendol which prevented his death. CONTRARY TO LAW.
Upon arraignment, petitioner pleaded not guilty.14 During trial, the
prosecution presented the testimonies of Mendol, Joseph Velasco
(Velasco) and Iluminado Garcelazo (Garcelazo), who all positively
identified him as the shooter of Mendol.15 The doctor who attended to the
victim also testified.16 The documentary evidence presented included a
sketch of the crime scene, the Medical Certificate issued by the physician,
and receipts of the medical expenses of Mendol when the latter was
treated for the gunshot wound. 17 In the course of the presentation of the
prosecution witnesses, the defense requested an ocular inspection of the
crime scene, a request that was granted by the court.18 On the other hand,
the defense witnesses are petitioner himself, his wife, Velasco
and Barangay Tanod George Asumbrado (Asumbrado).19 The defense
offered the results of the paraffin test of petitioner and the transcript of
stenographic notes taken during the court’s ocular inspection of the crime
scene.20
The Regional Trial Court (RTC) held that the positive testimonies of
eyewitnesses deserve far more weight and credence than the defense of
alibi.21 Thus, it found petitioner guilty of frustrated homicide. 22 The
dispositive portion reads:
WHEREFORE, the Court finds the accused Edmund Escamilla Y Jugo
GUILTY beyond reasonable doubt of the crime of Frustrated Homicide
under Articles 249 and 50 [sic] of the Revised Penal Code, and hereby
sentences the accused to suffer an indeterminate sentence of six (6)
months and one (1) day of prision correccional as minimum, to eight (8)
years and one (1) day of prision mayor as maximum. Accused is hereby
ordered to indemnify complainant Virgilio Mendol the sum of ₱34,305.16
for actual damages, ₱30,000.00 for moral damages. SO ORDERED.23
Petitioner filed a Notice of Appeal dated 14 July 2006. 24 In the brief that the
CA required him to file,25 he questioned the credibility of the prosecution
witnesses over that of the defense.26 On the other hand, the Appellee’s
Brief27 posited that the prosecution witnesses were credible, because there
were no serious discrepancies in their testimonies. 28 Petitioner, in his Reply
brief,29 said that the prosecution witnesses did not actually see him fire the
gun.30 Furthermore, his paraffin test yielded a negative result. 31
The CA, ruling against petitioner, held that the issue of the credibility of
witnesses is within the domain of the trial court, which is in a better position
to observe their demeanor.32 Thus, the CA upheld the RTC’s appreciation
of the credibility of the prosecution witnesses in the present case. 33 Also,
the CA ruled that the victim’s positive and unequivocal identification of
petitioner totally destroyed his defense of alibi. Hence, it found no reason
to disbelieve Mendol’s testimony.34 In addition, it said that a paraffin test is
not a conclusive proof that a person has not fired a gun and is
inconsequential when there is a positive identification of petitioner. 35
A Motion for Reconsideration36 dated 08 December 2008 was filed by
petitioner, who asserted that the defense was able to discredit the
testimony of the victim.37
In its 10 June 2009 Resolution,38 the CA denied petitioner’s Motion for
Reconsideration for being without merit, because the matters discussed
therein had already been resolved in its 10 November 2008 Decision. 39
Hence, this Petition40 assailing the application to this case of the rule that
the positive identification of the accused has more weight than the defense
of alibi.41 This Court resolved to require the prosecution to comment on the
Petition.42 In his Comment43 dated 15 December 2009, the victim said that
his positive identification of petitioner was a direct evidence that the latter
was the author of the crime.44 Furthermore, what petitioner raised was
allegedly a question of fact, which is proscribed by a Rule 45
petition.45 Thus, the victim alleged, there being no new or substantial matter
or question of law raised, the Petition should be denied. 46
We then obliged petitioner to file a reply.47 In his Reply dated 01 March
2010,48 he assigned as an error the application by the CA of the rule that
the positive identification of the accused has more weight than the defense
of alibi.49 He posits that the lower court manifestly overlooked relevant facts
not disputed by the parties, but if properly considered would justify a
different conclusion.50 This Court, he said, should then admit an exception
to the general rule that the findings of fact of the CA are binding upon the
Supreme Court.51
ISSUES
The questions before us are as follows:
I. Whether the prosecution established petitioner’s guilt beyond reasonable
doubt.52
II. Whether a defense of alibi, when corroborated by a disinterested party,
overcomes the positive identification by three witnesses.53
COURT’S RULING
We deny the Petition.
I. The prosecution proved petitioner’s guilt beyond reasonable doubt.
A. Petitioner was positively identified by three witnesses.
Petitioner argues that there was reasonable doubt as to the identity of the
shooter.54 He is wrong. As correctly held by the RTC and affirmed by the
CA, the identity of the assailant was proved with moral certainty by the
prosecution, which presented three witnesses – the victim Mendol,
Velasco, and Garcelazo – who all positively identified him as the
shooter.55 We have held that a categorical and consistently positive
identification of the accused, without any showing of ill motive on the part
of the eyewitnesses, prevails over denial.56 All the three witnesses were
unswerving in their testimonies pointing to him as the shooter. None of
them had any ulterior motive to testify against him.
Mendol said that he was about to ride his tricycle at the corner of Arellano
and Estrada Streets, when petitioner, who was in front of the former’s
store, shot him.57 The first shot hit its target, but petitioner continued to fire
at the victim three more times, and the latter then started to run away.58
Velasco, who was also at the corner of Estrada and Arellano Streets,
heard the first shot, looked around, then saw petitioner firing at Mendol
three more times.59
Lastly, Garcelazo testified that while he was buying bread from a bakery at
that same street corner, he heard three shots before he turned his head
and saw petitioner pointing a gun at the direction of the victim, who was
bloodied in the right chest.60 Garcelazo was just an arm’s length away from
him.61
The three witnesses had a front view of the face of petitioner, because they
were all facing Arellano Street from its intersection with Estrada Street,
which was the locus criminis.62 Although the crime happened in the wee
hours of the morning, there was a street lamp five meters from where
petitioner was standing when he shot the victim, thus allowing a clear view
of the assailant’s face.63 They all knew petitioner, because they either
bought from or passed by his store.64
B. The intent to kill was shown by the continuous firing at the victim
even after he was hit.
Petitioner claims that the prosecution was unable to prove his intent to
kill.65 He is mistaken. The intent to kill, as an essential element of homicide
at whatever stage, may be before or simultaneous with the infliction of
injuries.66 The evidence to prove intent to kill may consist of, inter alia, the
means used; the nature, location and number of wounds sustained by the
victim; and the conduct of the malefactors before, at the time of, or
immediately after the killing of the victim. 67
Petitioner’s intent to kill was simultaneous with the infliction of injuries.
Using a gun,68 he shot the victim in the chest. 69 Despite a bloodied right
upper torso, the latter still managed to run towards his house to ask for
help. 70 Nonetheless, petitioner continued to shoot at him three more
times,71 albeit unsuccessfully.72 While running, the victim saw his nephew in
front of the house and asked for help.73 The victim was immediately
brought to the hospital on board an owner-type jeep. 74 The attending
physician, finding that the bullet had no point of exit, did not attempt to
extract it; its extraction would just have caused further damage. 75 The
doctor further said that the victim would have died if the latter were not
brought immediately to the hospital.76 All these facts belie the absence of
petitioner’s intent to kill the victim.
II. Denial and alibi were not proven.
In order for alibi to prosper, petitioner must establish by clear and
convincing evidence that, first, he was in another place at the time of the
offense; and, second, it was physically impossible for him to be at the
scene of the crime. 77 The appreciation of the defense of alibi is pegged
against this standard and nothing else. Petitioner, as found by both the
RTC and CA, failed to prove the presence of these two requisite
conditions. Hence, he was wrong in asserting that alibi, when corroborated
by other witnesses, succeeds as a defense over positive identification. 78
A. Petitioner was unable to establish that he was at home at the time
of the offense.
The alibi of petitioner was that he was at home asleep with his wife when
Mendol was shot.79 To support his claim, petitioner presented the
testimonies of his wife and Asumbrado.80
1. The wife of petitioner did not know if he was at home when the shooting
happened.
The wife of petitioner testified that both of them went to sleep at 9:00 p.m.
and were awakened at 3:00 a.m. by the banging on their door. 81 However,
she also said that she did not know if petitioner stayed inside their house,
or if he went somewhere else during the entire time she was asleep. 82 Her
testimony does not show that he was indeed at home when the crime
happened. At the most, it only establishes that he was at home before and
after the shooting. Her lack of knowledge regarding his whereabouts
between 1:00 a.m. and 3:00 a.m. belies the credibility of his alibi. Even so,
the testimonies of relatives deserve scant consideration, especially when
there is positive identification83 by three witnesses.
2. Asumbrano did not see the entire face of the shooter.
Petitioner is questioning why neither the RTC nor the CA took into account
the testimony of Asumbrado, the Barangay Tanod on duty that
night.84 Both courts were correct in not giving weight to his testimony.
Asumbrado said that he was there when the victim was shot, not by
appellant, but by a big man who was in his twenties. 85 This assertion was
based only on a back view of the man who fired the gun 12 meters away
from Asumbrado.86 The latter never saw the shooter’s entire face.87 Neither
did the witness see the victim when the latter was hit. 88 Asumbrado also
affirmed that he was hiding when the riot took place. 89 These declarations
question his competence to unequivocally state that indeed it was not
petitioner who fired at Mendol.
B. Petitioner's home was just in front of the street where the shooting
occurred.
Physical impossibility refers to the distance between the place where the
accused was when the crime transpired and the place where it was
committed, as well as the facility of access between the two
places. 90 Petitioner failed to prove the physical impossibility of his being at
the scene of the crime at the time in question.
Both the prosecution and the defense witnesses referred to the front of
appellant's house or store whenever they testified on the location of the
shooter. Petitioner was in front of his house when he shot the victim,
according to Velasco's testimony. 91 Meanwhile the statement of Asumbrado
that the gate of the store of the petitioner was closed when the shooting
happened92 can only mean that the latter's house and store were both
located in front of the scene of the crime. 1âwphi1
Petitioner proffers the alibi that he was at home, instead of showing the
impossibility of his authorship of the crime. His alibi actually bolsters the
prosecution's claim that he was the shooter, because it placed him just a
few steps away from the scene of the crime. The charge is further
bolstered by the testimony of his wife, who could not say with certainty that
he was at home at 2:00a.m.- the approximate time when the victim was
shot.

Based on the foregoing, it cannot be said that the lower courts overlooked
any fact that could have justified a different conclusion. Hence, the CA was
correct in affirming the R TC 's Decision that petitioner, beyond reasonable
doubt, was the assailant.

WHEREFORE, in view of the foregoing, the Petition is DENIED. The 10

June 2009 Resolution93 and 10 November 2008 Decision94 of the Court of
Appeals in CA-G.R. CR. No. 30456 are hereby AFFIRMED in toto.
G.R. No. 117033      February 15, 2001
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, s.
RAFAEL AVECILLA y MOBIDO, accused-appellant.
YNARES-SANTIAGO, J.:
Accused-appellant was charged with the crime of Qualified Illegal
Possession of Firearm, committed as follows:
That on or about December 24, 1991, in the City of Manila, Philippines,
the said accused, not being allowed or authorized by law to keep,
possess and carry a firearm, did then and there wilfully, unlawfully, and
knowingly have in his possession, control and custody a firearm, to
with:
One (1) .38 Caliber Revolver Colt (Paltik) marked made in USA
without first obtaining the necessary license and/or permit to carry and
possess the same and in connection and by reason of such
possession, did then and there wilfully, unlawfully and feloniously, with
intent to kill, fire and shoot one Macario Afable, Jr. y Canqui, thus
inflicting upon the latter mortal gunshots and injuries which caused the
death of the latter as a consequence. 1
It appears from the records that at about 11:00 o'clock in the evening of
December 24, 1991, accused-appellant arrived at the basketball court
located on Dapo Street, Pandacan, Manila, and, for no apparent reason,
suddenly fired a gun in the air. He then went to a nearby alley and, minutes
later, proceeded to the closed store about four (4) meters away from the
basketball court. There, he initiated an argument with the group of Boy
Manalaysay, Jimmy Tolentino and Macario Afable, Jr. Afable tried to pacify
accused-appellant, whereupon, the latter placed his left arm around
Afable's neck and shot him pointblank on the abdomen. Afable ran toward
the alley and accused-appellant ran after him. Another shot rang out, so
one of the bystanders, Carlos Taganas, went to the alley and there, he saw
accused-appellant and Afable grappling for possession of the gun. The
Chief Barangay Tanod arrived and was able to wrest the gun away from
accused-appellant, who immediately fled from the scene of the incident.
Afable was rushed to the Philippine General Hospital, where he eventually
expired.1âwphi1.nêt
On June 21, 1994, the Regional Trial Court of Manila, Branch 38, rendered
judgment convicting accused-appellant of the crime of Qualified Illegal
Possession of Firearm, sentencing him to suffer the penalty of reclusion
perpetua, and ordering him to indemnify and pay damages to the victim's
heirs.2 Hence, this appeal filed by accused-appellant.
The records and the evidence show that the elements of the offense of
qualified illegal possession of firearms, defined in the second paragraph of
Section 1, Presidential Decree No. 1866, are present in this case.
Specifically, there are:
1. there must be a firearm;
2. the gun was possessed by the accused;
3. the accused had no license from the government; and
4. homicide or murder was committed by the accused with the use of
said firearm.3
The prosecution sufficiently established by evidence that accused-
appellant had in his custody and possession the following firearms and
ammunitions:
1. One (1) .38 cal. Rev., Colt "paltik" without serial number, nickel
plated with brown handle, two and one half inches barrel and marked
"BC";
2. Three (3) .38 Caliber cartridge cases marked BC-1, BC-2, BC-3;
3. Two (2) .38 cal. Ammo. (used for test);
4. One (1) .38 cal. Slug (deformed) marked "F" from Medico legal. 4
Likewise, per Certification of the Firearms and Explosives Office dated
September 1, 1992,5 it was proved that accused-appellant was not a
licensed or registered firearm holder of any kind and caliber.
Finally, there was an eyewitness account positively asserting that accused-
appellant had the subject firearm in his possession and used it in shooting
the victim.6 The medical examination on the victim disclosed that the
gunshot wounds he sustained were caused by the same unlicensed
firearm in accused-appellant's possession, and that the same were the
direct cause of the death of the victim. The ballistics report established that
the deformed .38 caliber slugs found in the victim's body were fired from
the subject firearm.7 The victim's cause of death was determined as
"cardio-respiratory arrest due to shock and hemorrhage secondary to
gunshot wound, left antero-lateral thorax." 8
However, the law on illegal possession of firearms has been amended by
Republic Act No. 8294, which took effect on July 6, 1994. The pertinent
provision of the said law provides:
SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or
Possession of Firearms or Ammunition or Instruments Used or
Intended to be Used in the Manufacture of Firearms or Ammunition. –
The penalty of prision correccional in its maximum period and a fine of
not less than Fifteen thousand pesos (P15,000.00) shall be imposed
upon any person who shall unlawfully manufacture, deal in, acquire,
dispose, or possess any low powered firearm, such as rimfire handgun,
.380 or .32 and other firearm of similar firepower, part of firearm,
ammunition, or machinery, tool or instrument used or intended to be
used in the manufacture of any firearm or ammunition: Provided, that
no other crime was committed. x x x      x x x      x x x
If homicide or murder is committed with the use of an unlicensed
firearm, such use of an unlicensed firearm shall be considered as an
aggravating circumstance.
If the violation of this Section is in furtherance of or incident to, or in
connection with the crime of rebellion or insurrection, sedition, or
attempted coup d'etat, such violation shall be absorbed as an element
of the crime of rebellion, or insurrection, sedition, or attempted coup
d'etat. (Underscoring provided)
It is clear from the foregoing that where murder or homicide results from
the use of an unlicensed firearm, the crime is no longer qualified illegal
possession, but murder or homicide, as the case may be. In such a case,
the use of the unlicensed firearm is not considered as a separate crime but
shall be appreciated as a mere aggravating circumstance. In view of the
amendments introduced by Republic Act No. 8294 to Presidential Decree
NO. 1866, separate prosecutions for homicide and illegal possession are
no longer in order. Instead, illegal possession of firearms is merely to be
taken as an aggravating circumstance in the homicide case. 9
Thus, in People v. Nepomuceno, Jr.,10 we stated:
But, pursuant to the amendment, the use of an unlicensed firearm in
the commission of murder or homicide is treated as an aggravating
circumstance. There, the illegal possession or use of the unlicensed
firearm is no longer separately punished. This Court emphatically said
so in People v. Bergante (286 SCRA 629 [1998]), thus:
The violation of P.D. No. 1866 should have been punished separately
conformably with our ruling in People v. Quijada. Nevertheless,
fortunately for appellant Rex Bergante, P.D. No. 1866 was recently
amended by Republic Act. No. 8294, otherwise known as "An Act
Amending the Provisions of Presidential Decree No. 1866, as
Amended." The third paragraph of Section 1 of said Act provides that
"if homicide or murder is committed with the use of an unlicensed
firearm, such use of an unlicensed firearm shall be considered as an
aggravating circumstance." In short, only one offense should be
punished, viz., either homicide or murder, and the use of the
unlicensed firearm should only be considered as an aggravating
circumstance. Being favorable to Rex Bergante, this provision may be
given retroactive effect pursuant to Article 22 of the Revised Penal
Code, he not being a habitual criminal.
The crime of illegal possession of firearm, in its simple form, is committed
only where the unlicensed firearm is not used to commit any of the crimes
of murder, homicide, rebellion, insurrection, sedition or attempted coup
d'etat. Otherwise, the use of unlicensed firearm would be treated either: (1)
as an essential ingredient in the crimes of rebellion, insurrection, sedition
or attempted coup d'etat; or (2) as an aggravating circumstance in murder
or homicide.
With respect to the conviction of accused-appellant for illegal
possession of firearms under P. D. No. 1866, it was held in the case
of People vs. Molina (292 SCRA 742) and reiterated in the recent case
of People vs. Ronaldo Valdez (G.R. NO. 127663, March 11, 1999, 304
SCRA 611), that in cases where murder or homicide is committed with
the use of an unlicensed firearm, there can be no separate conviction
for the crime of illegal possession of firearms under P.D. No. 1866 in
view of the amendments introduced by Republic Act No. 8294.
Thereunder, the use of unlicensed firearm in murder or homicide is
simply considered as an aggravating circumstance in the murder or
homicide and no longer as a separate offense. Furthermore, the
penalty for illegal possession of firearms shall be imposed provided
that no other crime is committed (Section 1 of R.A. No. 8294). In other
 words, where murder or homicide was committed, the penalty for illegal
possession of firearms is no longer imposable since it becomes merely
a special aggravating circumstance (People v. Molina, supra, at p.
782).

It bears stressing, however, that the dismissal of the present case for
illegal possession of firearm should not be misinterpreted to mean that
there can be longer be any prosecution for the offense of illegal
possession of firearms. In general, all pending cases involving illegal
possession of firearms should continue to be prosecuted and tried if no
other crimes expressly provided in R.A. No. 8294 are involved (murder
or homicide, under Section 1, and rebellion, insurrection, sedition or
attempted coup d' etat, under Section 3) (People v. Valdez, supra).11

Inasmuch as the amendatory law is favorable to accused-appellant in this

case, the same may be retroactively applied. This new law applies even to
violations that occurred prior to its effectivity as it may be given retroactive
effect under Article 22 of the Revised Penal Code. 12

R.A. 8294 took effect on July 6, 1997. The crime involved in the case
at bench was committed on May 5, 1991. As a general rule, penal laws
will generally have prospective application except where the new law
will be advantageous to the accused. In this case R.A. 8294 will spare
accused-appellant from a separate conviction for the crime of illegal
possession of firearm. Accordingly, said law should be given
retroactive application.13

Neither can accused-appellant be charged with simple illegal possession.

As stated above, the same may only done where no other crime is
committed.14

With more reason, accused-appellant cannot be convicted of homicide or

murder with "the use of the unlicensed firearm as aggravating," inasmuch
as said felonies are not charged in the information but merely mentioned
as the result of the use of the unlicensed firearm. Accused-appellant was
not arraigned for homicide or murder. Hence, he cannot be convicted of
any of these crimes without violating his right to be informed of the nature
and cause of the accusation against him, not to mention his right to due
process. 1âwphi1.nêt

WHEREFORE, in view of the foregoing, the appealed decision

is REVERSED. Criminal Case No. 92-105691, for Qualified Illegal
Possession of Firearm, is DISMISSED.
G.R. No. 199579               December 10, 2012 Macario denied the petitioner’s accusation, but petitioner still pointed and
shot his gun at Macario. The gunshots fired by the petitioner hit Macario’s
RAMON JOSUE y GONZALES, Petitioner, vs. elbow and fingers. As the unarmed Macario tried to flee from his assailant,
PEOPLE OF THE PHILIPPINES, Respondents. the petitioner still fired his gun at him, causing him to sustain a gunshot
wound at his back. Macario was then rushed to the Chinese General
REYES, J.: Hospital for medical treatment.

Before the Court is a Petition for Review on Certiorari filed by petitioner Dr. Tiongson confirmed that Macario sustained three (3) gunshot wounds:
Ramon Josue y Gonzales (Josue) to assail the Decision  dated June 30,
1  (1) one on his right hand, (2) one on his left elbow, and (3) one indicating a
2011 and Resolution dated December 1, 2011 of the Court of Appeals
2  bullet’s entry point at the posterior of the chest, exiting at the anterior line.
(CA) in CA-G.R. CR No. 33180. Dr. Calalang took note of the tiny metallic foreign bodies found in Macario’s
x-ray results, which confirmed that the wounds were caused by gunshots.
Further, she said that the victim’s injuries were fatal, if not medically
The petitioner was charged with the crime of frustrated homicide before the
attended to. Macario incurred medical expenses for his treatments.
Regional Trial Court (RTC) of Manila, via an information that reads:
For his defense, the petitioner declared to have merely acted in self-
That on or about May 1, 2004, in the City of Manila, Philippines, the said
defense. He claimed that on the evening of May 1, 2004, he, together with
accused, with intent to kill, did then and there willfully, unlawfully and
his son Rafael, was watching a television program when they heard a
feloniously, attack, assault and use personal violence upon the person of
sound indicating that the hood of his jeepney was being opened. He then
ARMANDO MACARIO y PINEDA a.k.a. BOYET ORA, by then and there
went to the place where his jeepney was parked, armed with a .45 caliber
shooting the said Armando Macario y Pineda a.k.a. Boyet Ora several
pistol tucked to his waist. There he saw Macario, together with Eduardo
times with a cal. 45 pistol hitting him on the different parts of his body, thus
Matias and Richard Akong, in the act of removing the locks of his vehicle’s
performing all the acts of execution which should have produced the crime
battery. When the petitioner sought the attention of Macario’s group,
of Homicide, as a consequence, but nevertheless did not produce it by
Macario pointed his .38 caliber gun at the petitioner and pulled its trigger,
reason of causes independent of his will, that is, by the timely and able
but the gun jammed and failed to fire. The petitioner then got his gun and
medical attendance rendered to the said ARMANDO MACARIO y PINEDA
used it to fire at Macario, who was hit in the upper arm. Macario again tried
a.k.a. BOYET ORA which prevented his death thereafter.
to use his gun, but it still jammed then fell on the ground. As Macario
reached down for the gun, the petitioner fired at him once more, hitting him
The case was docketed as Crim. Case No. 05-236299 and raffled to at the back. When Macario still tried to fire his gun, the petitioner fired at
Branch 40 of the RTC. Upon arraignment, the petitioner entered a plea of him for the third time, hitting his hand and causing Macario to drop his gun.
"not guilty". After pre-trial, trial on the merits ensued. The petitioner got Macario’s gun and kept it in his residence.

The witnesses for the prosecution were: (1) victim Armando The petitioner’s son, Rafael Josue, testified in court to corroborate his
Macario y Pineda (Macario); (2) Dr. Casimiro Tiongson, Jr. (Dr. Tiongson), father’s testimony.
Chief Surgical Resident of Chinese General Hospital; (3) Dr. Edith
Calalang (Dr. Calalang), a radiologist; (4) Ariel Villanueva, an eyewitness
SPO4 Axelito Palmero (SPO4 Palmero) also testified for the defense,
to the crime; and (5) Josielyn Macario, wife of the victim. The prosecution
declaring that on May 26, 2004, he received from Josue a .38 caliber
presented the following account:
revolver that allegedly belonged to Macario.
On May 1, 2004, at around 11:15 in the evening, Macario, a barangay
On October 22, 2009, the RTC rendered its Decision finding the petitioner
4 

tanod, was buying medicine from a store near the petitioner’s residence in
guilty beyond reasonable doubt of the crime of frustrated homicide. It gave
Barrio Obrero, Tondo, Manila when he saw the petitioner going towards
full credit to the testimony of the prosecution witnesses, further noting that
him, while shouting to ask him why he had painted the petitioner’s vehicle.
the defense had failed to prove that the .38 caliber revolver that was turned
over to SPO4 Palmero actually belonged to Macario. The dispositive
portion of the RTC Decision reads:
WHEREFORE, accused RAMON JOSUE y GONZALES is found guilty
beyond reasonable doubt of Frustrated Homicide without any aggravating
or mitigating circumstances to vary the penalty imposable. Applying the
Indeterminate Sentence Law, he is hereby sentenced to suffer an
indeterminate penalty of six (6) months and one (1) day of prision
correccional as minimum, to eight (8) years and one (1) day of prision
mayor as maximum.
Accused Ramon Josue y Gonzales is hereby ordered to indemnify the
victim, Armando Macario y Pineda, the sum of [P]32,214.25 for
hospitalization and medicine expenses as actual damages.
The accused’s bail is deemed cancelled. Bondsman is ordered to
surrender the accused to this Court for execution of the final judgment. SO
ORDERED. 5
Unsatisfied, the petitioner appealed from the RTC’s decision to the CA,
which affirmed the rulings of the RTC and thus, dismissed the appeal.
Hence, the present petition. The petitioner assails the CA’s dismissal of the
appeal, arguing that the prosecution had failed to overthrow the
constitutional presumption of innocence in his favor.
We deny the petition.
At the outset, we emphasize that since the petitioner seeks this Court’s
review of his case through a petition for review under Rule 45 of the Rules
of Court, only questions of law shall be addressed by the Court, barring
any question that pertains to factual issues on the crime’s commission. The
general rule is that questions of fact are not reviewable in petitions for
review under Rule 45, subject only to certain exceptions as when the trial
court’s judgment is not supported by sufficient evidence or is premised on
a misapprehension of facts. 6
Upon review, the Court has determined that the present case does not fall
under any of the exceptions. In resolving the present petition, we then
defer to the factual findings made by the trial court, as affirmed by the CA
when the case was brought before it on appeal. The Court has, after all,
consistently ruled that the task of assigning values to the testimonies of
witnesses and weighing their credibility is best left to the trial court which
forms first-hand impressions as witnesses testify before it. Factual findings
of the trial court as regards its assessment of the witnesses’ credibility are
entitled to great weight and respect by this Court, particularly when
affirmed by the CA, and will not be disturbed absent any showing that the
trial court overlooked certain facts and circumstances which could
substantially affect the outcome of the case. 7
As against the foregoing parameters, the Court finds, and so holds, that
both the trial and appellate courts have correctly ruled on the petitioner’s
culpability for the crime of frustrated homicide, which has the following for
its elements:
(1) the accused intended to kill his victim, as manifested by his use of a
deadly weapon in his assault;
(2) the victim sustained fatal or mortal wound/s but did not die because
of timely medical assistance; and
(3) none of the qualifying circumstance for murder under Article 248 of
the Revised Penal Code is present.
These elements were duly established during the trial.
The trial court’s factual findings, when taken collectively, clearly prove the
existence of the crime’s first and second elements, pertaining to the
petitioner’s intent to kill and his infliction of fatal wound upon the victim.
Evidence to prove intent to kill in crimes against persons may consist,
among other things, of the means used by the malefactors; the conduct of
the malefactors before, at the time of, or immediately after the killing of the
victim; and the nature, location and number of wounds sustained by the
victim. Significantly, among the witnesses presented by the prosecution
8 
was Villanueva, who, while being a friend of the petitioner, had testified
against the petitioner as an eyewitness and specifically identified the
petitioner as the assailant that caused the wounds sustained by the victim
Macario. Even the petitioner cites in the petition he filed with this Court the
prosecution’s claim that at the time he fired the first gunshot, he was
shouting, "Papatayin kita! (I will kill you!)" The doctors who attended to the
9 
victim’s injuries also affirmed before the trial court that Macario had
sustained gunshot wounds, and that the injuries caused thereby were fatal
if not given medical attention. The trial court then held:
Weighing the evidence thus proffered, this Court believes the prosecution’s
version.
xxxx
The Court gives credence to the testimonies of the witnesses presented by
the prosecution as it did not find any fact or circumstance in the shooting
incident to show that said witnesses had falsely testified or that they were
actuated by ill-motive.
xxxx
x x x (A)s a result of being shot three (3) times with a .45 caliber gun,
complainant sustained mortal wounds which without medical assistance,
complainant could have died therefrom. Dr. Casimiro Tiongson, Jr., the
chief surgical resident who attended the complainant and prescribed his
medicines, testified that the victim, Armando Macario, sustained three (3)
gunshot wounds located in the left elbow, right hand and another bullet
entering his posterior chest exiting in front of complainant’s chest.
These findings were also contained in the x-ray consultation reports
testified to by Dr. Edith Calalang as corroborating witness. (Citations
10 
omitted)
What is also noteworthy is that the petitioner invoked self-defense, after he
had admitted that he caused the victim’s wounds when he shot the latter
several times using a deadly weapon, i.e., the .45 caliber pistol that he
carried with him to the situs of the crime. In People v. Mondigo, we
11 
explained:
By invoking self-defense, appellant admitted committing the felonies
for which he was charged albeit under circumstances which, if
proven, would justify his commission of the crimes. Thus, the burden
of proof is shifted to appellant who must show, beyond reasonable
doubt, that the killing of Damaso and wounding of Anthony were attended
by the following circumstances: (1) unlawful aggression on the part of
the victims; (2) reasonable necessity of the means employed to
prevent or repel it; and (3) lack of sufficient provocation on the part of
the person defending himself. (Citations omitted and emphasis ours)
12 
In order to be exonerated from the charge, the petitioner then assumed the
burden of proving, beyond reasonable doubt, that he merely acted in self-
defense. Upon review, we agree with the RTC and the CA that the
petitioner failed in this regard.
While the three elements quoted above must concur, self-defense relies,
first and foremost, on proof of unlawful aggression on the part of the victim.
If no unlawful aggression is proved, then no self-defense may be
successfully pleaded. "Unlawful aggression" here presupposes an actual,
13 
sudden, and unexpected attack, or imminent danger of the attack, from the
victim.
14
In the present case, particularly significant to this element of "unlawful
aggression" is the trial court’s finding that Macario was unarmed at the time
of the shooting, while the petitioner then carried with him a .45 caliber
pistol. According to prosecution witness Villanueva, it was even the
petitioner who confronted the victim, who was then only buying medicine
from a sari-sari store. Granting that the victim tried to steal the petitioner’s
car battery, such did not equate to a danger in his life or personal safety. At
one point during the fight, Macario even tried to run away from his
assailant, yet the petitioner continued to chase the victim and, using his .45
caliber pistol, fired at him and caused the mortal wound on his chest.
Contrary to the petitioner’s defense, there then appeared to be no "real
danger to his life or personal safety," for no unlawful aggression, which
15 
would have otherwise justified him in inflicting the gunshot wounds for his
defense, emanated from Macario’s end.*
The weapon used and the number of gunshots fired by the petitioner, in
relation to the nature and location of the victim’s wounds, further negate
the claim of self-defense. For a claim of self-defense to prosper, the means
employed by the person claiming the defense must be commensurate to
the nature and extent of the attack sought to be averted, and must be
rationally necessary to prevent or repel an unlawful
aggression. Considering the petitioner’s use of a deadly weapon when his
16 
victim was unarmed, and his clear intention to cause a fatal wound by still
firing his gun at the victim who had attempted to flee after already
sustaining two gunshot wounds, it is evident that the petitioner did not act
merely in self-defense, but was an aggressor who actually intended to kill
his victim.
Given the foregoing, and in the absence of any circumstance that would
have qualified the crime to murder, we hold that the trial court committed
no error in declaring the petitioner guilty beyond reasonable doubt of the
crime of frustrated homicide. Applying the rules provided by the
Indeterminate Sentence Law, the trial court correctly imposed for such
offense an indeterminate penalty of six ( 6) months and one (1) day
of prision correccional as minimum, to eight (8) years and one (1) day
of prision mayor as maximum. The award of actual damages is also
sustained. However, we hold that in line with prevailing jurisprudence,  the
17 
victim is entitled to an award of moral damages in the amount
of P10,000.00.
WHEREFORE, the petition is DENIED. The Decision dated June 30, 2011
and Resolution dated December 1, 2011 ofthe Court of Appeals in CA-
G.R. CR No. 33180 are AFFIRMED with MODIFICATION in that the
petitioner Ramon Josue y Gonzales is also ordered to pay the offended
party the amount of P10,000.00 as moral damages.
G.R. No. 105668 October 16, 1997
THE PEOPLE OF THE PHILIPPINES, plaintiff and appellee, vs.
HERNANDO DALABAJAN, DOMINADOR DALABAJAN and
FERNANDO DALABAJAN, defendants and appellants.
HERMOSISIMA, JR., J.:
This is an appeal interposed by Hernando, Dominador, and Fernando, all
surnamed Dalabajan.
On May 21, 1986, an information   accusing Hernando Dalabajan,
1
Dominador Dalabajan, Fernando Dalabajan, Napoleon dela Torre, Charlie
Paduga and Megdonio Sabinet of the crime of murder was filed before the
Regional Trial Court of Palawan and Puerto Princesa City, stating:
That on or about the 1st day of January 1988, at Barangay Cayapas,
Municipality of Dumaran, Province of Palawan, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating together and mutually helping one another,
with intent to kill, with evident premeditation and treachery, and taking
advantage of superior strength, did then and there wilfully, unlawfully,
and feloniously attack, assault and stab with a bladed weapon, strike
with a banca paddle and piece of wood one Amado Zabalo Jr., hitting
him various vital parts of his body and inflicting upon him injuries which
were the direct and immediate cause of his instantaneous death.
CONTRARY TO LAW and committed with aggravating circumstances
of treachery, evident premeditation and taking advantage of superior
strength.
Upon arraignment on separate dates, the aforesaid accused, duly assisted
by counsel, voluntarily entered separate pleas of "not guilty'' to the offense
charged in the information.
In the course of trial, the charges against Megdonio Sabinet, Napoleon
dela Torre and Charlie Paduga were dismissed for insufficiency of
evidence upon recommendation of the provincial prosecutor.
The facts of the case, as found by the trial court, are as follows:
Sometime on January 1, 1986 at around 1:00 o'clock in the morning and
while the people of Barangay Cayapas, Dumaran, Palawan were
celebrating the New Year's eve with a dance at their Barangay Hall located
near the seashore, Melencio dela Cruz saw Hernando Dalabajan kick and
stab one Amado Zabalo, Jr. as the latter was coming out of the said
Barangay Hall. Amado was kicked on his right thigh and stabbed on his
right abdomen. Other residents, mostly relatives of the Dalabajans, then
joined Hernando in mauling Amado. Amado tried to escape by running
towards the nearby seashore and wading into the water. Hernando
Dalabajan, together with co-accused Dominador and Fernando Dalabajan
and the rest of their relatives, pursued Amado. Upon reaching the
seashore only the three accused-appellants took a banca and chased the
latter. The rest of their relatives stayed by the seashore. When the
accused-appellants were finally able to overtake Amado about 30 to 40
meters away from the shore, they helped one another in hitting him with
bladed instruments, wooden clubs and a boat paddle on different parts of
his body. Thereafter, the three accused left the already unmoving body of
the victim which was face down in the water and proceeded back towards
the seashore. At this juncture, Melencio dela Cruz, who was hiding behind
the bushes by the seashore from where he watched the incident happen,
then went to the house of the victim and reported the incident to the latter's
relatives.
Melencio dela Cruz also testified that he was able to witness the incident at
the sea thirty meters from his hiding place and saw it clearly since it was
full moon on that fateful night. There were many people who went to the
shore and witnessed the incident in question, but most of these people
belonged to the Dalabajan clan. This was the reason why he hid in the
bushes, for fear of being discovered by any member of the Dalabajan clan,
a clan reputed in their community for their clannishness. He also feared for
his life because most of the Barangay Tanods were related to the
Dalabajans. He was able to follow the whole incident from the time Amado
Zabalo, Jr. was attacked in front of the Barangay Hall to the time the latter
was chased and killed at sea. 2
Amado Zabalo, Sr., the father of the victim, testified that, shortly after the
incident, he was informed about it by some residents of their barangay. He
immediately proceeded to the place of the incident and saw the already
dead body of his son. The cadaver of the victim was then brought to the
Barangay Hall. When the policemen arrived at 10:00 o'clock that night,
they conducted an investigation and made a sketch showing the wounds
sustained by the victim. No autopsy was conducted on the victim's cadaver
since there was no doctor available.   The prosecution however submitted
3
a death certificate in this connection signed by the victim's father and the
Local Civil Registrar.
Lolito Carceller, a member of the police force of Dumaran, Palawan
testified that he was a member of the police team that investigated the
incident in question. He was also the one who prepared the sketch of the
victim's body showing the stab wounds and injuries sustained by the
victim. Upon his examination, he saw that the cadaver of Amado Zabalo,
Jr. bore the following wounds, to wit: one on the upper portion of the head,
a stab wound on the left eye, a stab wound on the left ear, a stab wound
on the left portion of the mouth, a stab wound on the right cheek and a stab
wound on the stomach. In addition, the two fingers on the left hand of the
victim were dislocated. 
4
On the other hand, one of the herein accused-appellants, Hernando
Dalabajan, gave a different version of the incident. He contends that at
around midnight on December 31, 1985, he was at the barangay hall of
Bgy. Cayapas, Dumaran, Palawan. There were many people then at the
said hall celebrating the New Year's eve as there was a dance to be held
therein. Amado Zabalo, Jr., who was drunk at the time, went inside the
Barangay Hall and began to look for a dance partner. Hernando accosted
Amado and told him not to start dancing since the ladies were not yet in
the dancing hall. Without saying a word, Amado left. After a while, the
dance started and Hernando joined the other residents in dancing. Not
long after, he went downstairs to answer the call of nature. From out of
nowhere Amado suddenly appeared and hacked him with a bolo hitting
him on his right elbow. Hernando ran away but Amado chased him. When
Hernando stumbled to the ground Amado hacked him again hitting him this
time at the left portion of his head. At this juncture, Hernando was able to
get hold of a piece of wood with which he clubbed Amado. Thereafter, the
people around ganged up on the latter as Hernando ran back to the
Barangay Hall to seek the help of their Barangay Captain. He however lost
consciousness upon reaching the Barangay Hall because of loss of blood
which was oozing from his head. When he learned of Amado Zabalo, Jr.'s
death the next day, he felt responsible for the victim's death and, thus, he
went to the police and voluntarily surrendered, saying that he had clubbed
the victim the night before.
Hernando Dalabajan further testified that he never saw prosecution
witness Melencio dela Cruz at any time during that fateful night. 5
Barangay Tanod Dominador Dalabajan, testified that he was also at the
said Barangay Hall together with five other Barangay Tanods in the
evening of December 31, 1985. They were requested by their Barangay
Captain Eulogio Sabinet, to maintain peace and order there in view of the
dance to be held as part of the New Year's eve celebration. The said
dance started at around 12:00 midnight. It was only the following day that
he learned of Amado's death in the sea. He denies any participation in the
killing of the deceased.6
For his part, Fernando Dalabajan did not even present any evidence, nor
did he testify in order to controvert the prosecution's assertion linking him
to the killing.
On February 26, 1990, after the case had been submitted for decision but
prior to the promulgation thereof by the trial court, Amado Zabalo, Sr., the
victim's father, executed an Affidavit of Desistance, which stated:
SINUMPAANG SALAYSAY SA PAGUURONG NG DEMANDA
AKO, si Amado Zabalo, Sr., nasa hustong gulang, may asawa at
naninirahan sa Bgy. Cayapas, Dumaran, Palawan, pagkatapos manumpa
alinsunod sa batas, ay nagsasaad ng sumusunod:
1. Na ako ang ama ni Amado Zabalo, Jr. na namatay sa Cayapas,
Dumaran, noong ika-1 ng Inero, 1986;
2. Na dahil sa pagkamatay ng aking anak, ako ay dumulog ng hablang
"murder" sa hukuman laban kina Dominador Dalabajan, Hernando
Dalabajan at Fernando Dalabajan, at ang nasabing habla ay kasalukuyang
nililitis sa sangay bilang 50 ng RTC-Palawan at may numerong criminal
case No. 6315;
3. Na nitong mga huling araw pagkatapos kong magsagawa ng sariling
pagsisiyasat ay napag-alaman ko sa aking buong kasiyahan na ang mag
amang si Dominador at Fernando Dalabajan ay wala palang mga
kasalanan at anumang kaugnayan sa pagkamatay ng anak kong si Amado
Zabalo Jr., at si Hernando Dalabajan naman ay napilitang magtanggol na
lamang ng kanyang sarili sapagkat siya ay pinagtulungan nina Amado
Zabalo Jr., at ng kanyang mga kasamahan;
4. Na hindi na ako interesado pang ipagpatuloy ang demanda ko laban sa
nasabing mag-aama kaya't iniuurong ko na ang nasabing demanda laban
sa kanila;
5. Na aking isinagawa ang sinumpaang salaysay na ito ng kusang loob at
buong laya, at ako'y hindi tinakot at inalok ng anumang pabuya o pangako
at ginawa ko ang salaysay na ito upang patutuhan ang lahat ng aking mga
isinasaad sa itaas.
KUSANG loob kong nilagdaan ang salaysay na ito nitong ika-26 ng
Pebrero, 1990, dito sa lungsod ng Puerto Princesa.
On July 31, 1990, Melencio Dela Cruz, the sole eyewitness for the
prosecution, executed an affidavit   recanting his testimony and instead
7 were presented to the trial court as annexes in an Urgent Motion for
stating that he did not witness the incident, viz.:
AFFIDAVIT OF RECANTATION
I, MELENCIO DE LA CRUZ, Filipino, of legal age, married, and residing at
Calero, Puerto Princesa City, under oath allege:
1. That I was presented in court as one of prosecution witnesses in
Criminal Case No. 6315 entitled "People of the Philippines versus
HERNANDO DALABAJAN et al." for "Murder" now pending in Branch 50 of
the Regional Trial Court of Palawan and Puerto Princess City.
2. That the truth of the matter is that I arrived at the scene of the incident
only after AMADO ZABALO, JR., the victim, was brought to the shore and
already dead. Hence, I was not able to witness the actual happenings
which led to his death.
3. That there being no witness at the time the investigation was being
conducted by the police concerning the death of AMADO ZABALO, JR., I
was prevailed upon by the victim's father, AMADO ZABALO, SR., to testify
for the prosecution and when I refused to cooperate he threatened to kill
me. Thus, I was forced to sign an affidavit to attest that I saw the actual
killing of AMADO ZABALO, JR., by the accused DOMINADOR
DALABAJAN, HERNANDO DALABAJAN, and FERNANDO DALABAJAN
while accused MEGDONIO SABINET, CHARLIE PADUGA and
NAPOLEON DELA TORRE were in the shore holding pieces of wood and
waiting for AMADO ZABALO, JR. to come ashore so that they could block
him.
4. That I am recanting my aforesaid affidavit as well as my testimonies in
court because I am being bothered by my conscience for having testified
against the accused without witnessing the whole incident.
FURTHER AFFIANT SAYETH NAUGHT.
In addition, the accused-appellants also submitted, along with their
Appellants' Brief, a copy of a Sinumpaang Salaysay executed by one
Manuela Gabinete-Dacuan, a Barangay Kagawad, on August 3, 1991,
wherein she stated that everything Melencio dela Cruz said during his
testimony is false since the latter was not present at the crime scene at the
time of the incident. However, Gabinete-Dacuan was never presented as a
witness for the defense during the trial proper. These three documents
Release on Bail   filed by the Dalabajans only after the promulgation of the
8
decision convicting them.
The trial court did not find the accused-appellants' defense plausible and
accordingly found them guilty beyond reasonable doubt of murdering
Amado Zabalo, Jr. It thus stated in the dispositive portion of its Decision: 
9
WHEREFORE, and in view of the foregoing consideration, judgment is
hereby rendered finding the 3 accused in the above-entitled case guilty
beyond reasonable doubt of the crime of murder as the same is
defined and penalized under the Revised Penal Code, sentencing all
the 3 accused to suffer the penalty of reclusion perpetua as well as to
pay the costs. The 3 accused furthermore are hereby ordered jointly
and solidarily to indemnify the heirs of the deceased the sum of
P50,000.00 as and for the death of the deceased. They are
furthermore ordered to indemnify jointly and severally the heirs of the
deceased the sum of P1,000.00 and for actual damages. SO
ORDERED.
The accused-appellants are now before us on appeal with the following
assignment of errors:
I THE TRIAL COURT ERRED REVERSIBLY IN NOT ACCORDING
ACCUSED THEIR CONSTITUTIONAL RIGHT TO BE PRESUMED
INNOCENT AND TO AN IMPARTIAL TRIBUNAL.
II THE TRIAL COURT ERRED REVERSIBLY IN ACCORDING
WEIGHT TO THE UNTRUST WORTHY AND IN FACT FABRICATED
TESTIMONY OF THE SOLE SUPPOSED EYEWITNESS FOR THE
PROSECUTION.
 III THE TRIAL COURT ERRED REVERSIBLY IN CONVICTING
ACCUSED-APPELLANTS.
The accused-appellants, in denying culpability for the death of Amado
Zabalo, Jr., insist that the latter was killed as a result of a tumultuous
affray. They further insist that the testimony of the sole eyewitness,
Melencio dela Cruz, be disregarded for being manifestly fabricated, more
so now that the latter has executed an affidavit of desistance.
We find the appeal unmeritorious.
A recantation does not necessarily cancel an earlier declaration. Like any
other testimony, it is subject to the test of credibility based on the relevant
circumstances and especially the demeanor of the witness on the stand.
Moreover, it should be received with caution as otherwise it could "make
solemn trial a mockery and place the investigation of truth at the mercy of
unscrupulous witnesses."   In the case at bar, Dela Cruz's recantation
10
came only after a lapse of almost four (4) years from the date of his last
testimony in open court. The case was submitted for decision before the
trial court as early as January 12, 1990. However, promulgation of
judgment had to be reset a number of times since the accused-appellants
successively failed to appear on the dates set. It was only on July 26, 1991
that the accused-appellants finally appeared and the decision was
promulgated. Thereafter, it was only on August 6, 1991, upon filing of an
Urgent Motion for Release on Bail, that accused-appellants presented the
Affidavit of Recantation executed by Dela Cruz.
It is highly doubtful that the eyewitness Dela Cruz, after going through the
trouble of being sworn in, testifying in open court, and being subjected to a
rigid cross-examination by the defense counsel, wherein he unhesitatingly
pointed to the accused-appellants as the perpetrators of the crime, would,
after four years, suddenly turn around and reverse himself. We have
previously held that mere retraction by a prosecution witness does not
necessarily vitiate the original testimony if credible.   The Court looks with
11
disfavor upon retractions of testimonies previously given in court. The
rationale for the rule is obvious: Affidavits of retraction can easily be
secured from witnesses, usually through intimidation or for a monetary
consideration. Recanted testimony is exceedingly unreliable. There is
always the probability that it will later be repudiated. 
12
A testimony solemnly given in court should not be set aside lightly, least of
all by a mere affidavit executed after the lapse of considerable time. In the
case at bar, although the Affidavit of Recantation was executed almost a
year prior to the promulgation of the decision, the accused-appellants saw
it fit to inform the lower court of its existence only after the said
promulgation, by attaching it as an annex in their Urgent Motion for
Release on Bail filed on August 6, 1991.   Moreover, the promulgation of
13
the decision was delayed and reset a number of times due to the failure of
the accused-appellants to appear as scheduled. Thus, it is clear that the
retraction is an afterthought and should not be given probative value.
The accused-appellants, in praying that the case at bench be remanded to
the lower court for new trial, insist that the Affidavit of Desistance executed
by Dela Cruz constitutes newly discovered evidence. We hold that it is not.
Section 2 of Rule 121 of the Rules of Court provides that the only grounds
for new trial are:
(a) That errors of law or irregularities have been committed during the
trial prejudicial to the substantial rights of the accused;
(b) That new and material evidence has been discovered which the
accused could not with reasonable diligence have discovered and
produced at the trial, and which it introduced and admitted, would
probably change the judgment.
Obviously, an affidavit of desistance, even judging from the meaning of this
caption itself, can not be said to be newly discovered evidence.
Anyway, the delay on the part of the accused-appellants in presenting the
Affidavit of Desistance casts serious doubt upon the veracity of the
statements made therein.
The case of U.S. vs. Dacir   first enunciated the principle regarding
14
affidavits of recantation as basis for a new trial:
In general, motions for new trial based on affidavits of this kind are
entitled to but scant consideration. The mere fact that after a solemn
trial in a court of justice has been terminated, one of the witnesses, in
conversation with friends or under pressure from interested parties,
may tell a different story as to the incidents testified to by him, does not
necessarily destroy the probative testimony when on the witness stand.
If new trials were granted in every instance where the interested party
or parties succeed in inducing some of the witnesses to vary or modify
their testimony outside of court and after the trial, there would never be
an end of criminal litigation.
 The value as evidence of the testimony of a witness given in open
court in the course of a trial had therein is due for the most part to the
following considerations: That under such conditions it is given under
the sanction of an oath and of the penalties prescribed for perjury; that
the witness' story is told in the presence of an impartial judge in the
course of a solemn trial in open court; that the witness is subject to
cross-examination, with all the facilities afforded thereby to test the
truth and accuracy of his statements and to develop his attitude of
mind toward the parties, his disposition to assist the cause of truth
rather than to further some personal end; that the proceedings are had
under the protection of the court and under such conditions as to
remover, so far as is humanly possible, all likelihood that undue or
unfair influences will be exercised to induce the witness to testify
falsely; and finally, that under the watchful eye of a trained judge his
manner, his general bearing and demeanor and even the intonation of
his voice often unconsciously disclose the degree of credit to which he
is entitled as a witness. Manifestly, loose statements or even sworn
statements of witnesses, made after the trial has closed, varying or
contradicting their testimony given at the trial, will rarely be sufficient in
the absence of special circumstances, to raise such a doubt as to the
truth of their testimony given at the trial and accepted as true by the
trial judge, as to justify the granting of a new trial.
The Affidavit of Desistance executed by the victim's father also merits
scant consideration, for it is axiomatic in our jurisdiction that for such
desistance to benefit the accused, it must be given prior to the filing of a
criminal complaint.   Here, the Affidavit of Desistance was filed long after
15
the trial had concluded. As such, like the Affidavit of Recantation executed
by Dela Cruz, Amado Zabalo, Sr.'s sworn statement cannot serve as basis
for the acquittal of the accused-appellants. We cite with approval the
argument of the Solicitor General with regard to the said affidavits:
Even on their merits, the sworn statements are not impressed with faith
and credit. Melencio dela Cruz alleges that he testified for the
prosecution because Amado Zabalo, Sr. "threatened to kill me." If true,
why did it take him more than four long years to wean away from the
threat and retract his testimony[?] On the other hand, Amado Zabalo,
Sr.'s affirmation of the alleged innocence of accused-appellants is
devoid of any probative value being hearsay and a mere factual
conduction. And Kagawad Manuela Gabinete-Dacuan's narration of the
alleged incident exculpating the accused-appellants is clearly and
indubitably a fabricated afterthought.
Neither constituting newly discovered evidence nor of such probative
weight as would probably change the judgment, the sworn statements
in question cannot even be a valid ground for new trial under Rule 121
of the Rules of Court. According to this Honorable Court in People
vs. Bigcas (211 SCRA 630):
As a general rule a motion for new trial will not be granted if based
on an affidavit of recantation of a witness whose effect, is to free
the appellant from participation in the commission of the crime. It
would be a dangerous rule to reject the testimony taken before the
court of justice simply because the witness who has given it later
on changed his mind for one reason or another, for such a rule will
make a solemn trial a mockery and place the investigation at the
mercy of unscrupulous witnesses. Because affidavits of retraction
can easily be secured from poor and ignorant witnesses, usually
for monetary consideration, the Court has invariably regarded such
affidavits as exceedingly unreliable (de Guzman vs. IAC, 184
SCRA [April 4, 1990]) (emphasis supplied).
The accused-appellants assert that inconsistencies abound in the
testimony of Dela Cruz, that it is uncorroborated, and has no probative
value, it being a mere fabrication. Contrary to this contention, upon close
examination of the testimony given by Melencio dela Cruz, we find that
Dela Cruz's testimony is credible, detailed, and was given in a forthright
manner. His narration of what transpired remained unshaken even when
he was subjected to rigid cross-examination by the defense counsel.
Moreover, the testimony of Lolito Carceller, who examined the corpse of
the victim as to the location of the wounds corroborates the testimony of
Dela Cruz. Most of the wounds inflicted upon the deceased which were
examined and noted by Carceller were located on the upper part of the
body, specially, above the armpits. The site of the wounds lends credence
to Dela Cruz's testimony that the victim was hit and stabbed by the
accused-appellants while the former was in armpit-deep water and the
accused were aboard a banca.
The accused-appellants insist that Dela Cruz could not have been able to
identify Zabalo's assailants from a distance of thirty (30) to (40) meters.
This contention is incorrect. It had been established that Dela Cruz
witnessed the attack on Amado Zabalo, Jr. by the accused-appellants from
the time of its inception, when Hernando Dalabajan stabbed the victim, to
the time when the victim tried to escape by wading out to sea, and up to its
horrible climax when the victim was mercilessly killed by the three accused
who unrelentingly pursued him. Dela Cruz fully witnessed the attack on the
victim.
Hernando Dalabajan insists that Dela Cruz was not present at the time of
the incident. However, upon cross-examination, it can be gleaned that his
only basis for such an assertion is that he did not see Dela Cruz that night,
but he did not discount the possibility that Dela Cruz was somewhere in the
vicinity but out of sight. 
16
The trial court correctly appreciated the aggravating circumstance of
treachery in qualifying the criminal offense to murder:
The Court in assessing the circumstances of the killing of the deceased
Amado Zabalo, Jr. by all the 3 accused who actively helped one
another in perpetrating the killing could not but rule that the killing was
attended by treachery to qualify the offense to murder. The above
finding was primarily premised on the fact that at the time the attack
was launched at the sea by the 3 accused, the victim was not in a
position to defend himself. Thus, at the time of attack the victim was in
the water with a depth up to his armpit. In the situation he found
himself, it is quite obvious his freedom of movement to adequately
protect and defend his person was very much restricted taken in
conjunction with the 3 aggressors who were riding in a banca and
hitting him all at the same time.
From the manner of attack employed by the accused, it may
reasonably be deduced or inferred that accused consciously adopted
the mode of attack employed by them to insure its success. When they
pursued the victim who run towards the seashore and opted to go to
the water, it must be construed when they availed themselves of a
banca, they did so with a decided advantage on their part without risk
to their personal safety. It can thus be seen that at the time the fatal
blows were delivered treachery can thus be firmly appreciated against
them.
Treachery may not be present at the inception of the attack, but if
the attack is continuous and treachery existed at the time of the
consummation of the killing the crime committed is not homicide
but murder. (People vs. Cariño, et al., 58 SCRA 516).
We find no merit in the contention of accused-appellants that Amado
Zabalo, Jr. died on the occasion of a tumultuous affray. Pertinent provision
of the Revised Penal Code on death caused in a tumultuous affray reads:
Death caused in a tumultuous affray. — When, while several persons,
not composing groups organized for the common purpose of assaulting
and attacking each other reciprocally, quarrel and assault each other in
a confused and tumultuous manner, and in the course of the affray
someone is killed, and it cannot be ascertained who actually killed the
deceased, but the person or persons who inflicted serious physical
injuries can be identified, such person or persons shall be punished
by prision mayor. . . . (Art. 251 of the Revised Penal Code) [Penalties
omitted]
Consequently, the following elements must concur:
(1) That there be several persons;
(2) That they did not compose groups organized for the common
purpose of assaulting and attacking each other reciprocally;
(3) That these several persons quarreled and assaulted one another in
a confused and tumultuous manner;
(4) That someone was killed in the course of the affray;
(5) That it cannot be ascertained who actually killed the deceased;
(6) That the person or persons who inflicted serious physical injuries or
who used violence can be identified.
In the case at bench, there were no groups of persons organized for the
common purpose of assaulting and attacking each other reciprocally.
Consequently, there was no affray among several groups of persons in the
course of which Amado Zabalo, Jr. died. The fact is that there was only
one group of persons, the accused themselves, who caused an attack on a
single victim, Amado Zabalo, Jr. This group of persons, motivated as they
were, attacked and killed the aforesaid victim. The persons who assaulted
and killed the victim were clearly identified. Since it was ascertained as to
who actually killed the deceased, the death of the victim cannot be said to
have been caused in a tumultuous affray.
There is, appreciated herein, as recommended by the Solicitor General,
the mitigating circumstance of voluntary surrender in the case of Hernando
Dalabajan. This mitigating circumstance is, however, offset by the
aggravating circumstance of evident premeditation and abuse of superior
strength. Treachery has qualified the killing to murder. Consequently, as
correctly found by the trial court, the penalty of reclusion perpetua should
be imposed.
WHEREFORE, the judgment of the court a quo is hereby AFFIRMED in all
respects.
G.R. No. 109617 August 11, 1997
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.
FELIPE SION @ "JUNIOR," JOHNNY JUGUILON, EDONG SION, FELIX
SION @ "ELLET," and FEDERICO DISU @ MIGUEL," accused.
Disu's motion for bail, to which Asst. Provincial Prosecutor Restituto
Dumlao, Jr., recommended that bail be fixed at P40,000.00 for said
accused only, the court fixed said accused's bail at such amount; and upon
filing and approval of the bail bond, appellant Disu was ordered
released.  Subsequently, one Atty. Fernando Cabrera filed, for the rest of
7

the accused, a motion to reduce the bail from P40,000.00 to

FELIPE SION @ "JUNIOR" and FEDERICO DISU @ P20,000.00.  As Provincial Prosecutor Dumlao agreed to a reduction of
8

"MIGUEL," accused-appellants. P10,000.00, the court granted the motion and fixed bail at P30,000.00.
None of them, however, filed a bail bond.
DAVIDE, JR., J.:
For failure of the accused to submit the required counter-affidavits, the
Municipal Circuit Trial Court, finding probable cause against all the
In its decision  in Criminal Case No. D-10796 dated 20 January 1993, but
1

accused for the crime of murder on the basis of the evidence for the
promulgated on 8 February 1993, Branch 44 (Dagupan City) of the
prosecution, ordered the transmittal of the record of the case, including the
Regional Trial Court of the First Judicial Region decreed as follows:
bail bond of accused Federico Disu, to the Office of the Provincial
Prosecutor of Pangasinan for appropriate action. 9

WHEREFORE, the Court finds accused Felipe Sion alias "Junior" and

Federico Disu alias Miguel Disu guilty beyond reasonable doubt as
On 21 January 1992, an Information   was filed with the Regional Trial
10

principals of the crime of Murder pursuant to Article 248 of the Revised

Court (RTC), First Judicial Region, in Dagupan City, Pangasinan, against
Penal Code, and in view of the attendance of the aggravating
appellants Sion and Disu and Johnny Juguilon, Edong Sion, Felix
circumstance of cruelty which is not offset by any mitigating
Sion alias "Ellet," and four (4) unidentified persons (designated as John,
circumstance, the two accused are hereby sentenced to suffer the
Peter, Richard and Paul Doe), accusing them of the crime of murder
penalty of Reclusion Perpetua, and to indemnify jointly the heirs of the
committed as follows:
victim the sum of P50,000.00 and to pay the costs of the proceedings.
That on or about October 16, 1991 in the evening at Brgy. Binday,
Accused Felipe Sion alias "Junior" and Federico Disu alias Miguel Disu
municipality of San Fabian, province of Pangasinan, Philippines and
are ordered to pay jointly the heirs of the victim the sum of P11,910.00
within the jurisdiction of this Honorable Court, the above-named
as actual damages. SO ORDERED.
accused, armed with stones and a bladed weapon conspiring,
confederating and mutually helping one another with intent to kill with
Felipe Sion alias "Junior," whose full name is Felipe Rodriguez Sion, treachery and evident premeditation did, then and there wilfully,
Jr.  (hereafter appellant Sion), and Federico Disu alias "Miguel" (hereafter
2
unlawfully and feloniously hurl with stones, attack and stab Fernando
appellant Disu), seasonably appealed therefrom to this Court  in view of the
3
Abaoag inflicting upon him the following injuries:
penalty imposed. 4

— stab wound 1 1/2 inches in width, 9 inches in depth between 10-

The case against appellants commenced with the filing of a criminal 11 ICS, mid axillary area slanting upwards hitting the left lobe of
complaint for Murder  on 19 November 1991 in Criminal Case No. 2141
5
the lung
(SP-91) before the Fourth Municipal Circuit Trial Court of San Fabian-San
Jacinto in the Province of Pangasinan. Charged with appellants therein
— stab wound right lateral side of the neck 1 1/2, inch in depth
were Johnny Juguilon, Edong Sion, Felix Sion alias "Ellet," and "four (4)
other John Does." After appropriate preliminary examination, Judge Sergio
Garcia of said court issued a warrant for the arrest of the accused with no — stab wound 1 1/2 inches in width, 1 1/2 in depth mid scapular
bail fixed for their temporary liberty.  However, the warrant was served only
6 area, left
on appellant Disu, while the rest then remained at large. Upon appellant
 — contusion superimposed abrasion left eyebrow
which caused his instant death, to the damage and prejudice of his
heirs.
CONTRARY to Art. 248, Revised Penal Code.
The information was docketed as Criminal Case No. D-10796 and
assigned to Branch 44 thereof.
On 2 June 1992, accused Sion was arrested.   Then on 10 June 1992, the
11
RTC annulled and voided the bail earlier granted to appellant Disu by the
MCTC Judge Sergio Garcia for luck of proper hearing, denied the motion
for bail filed by appellant Sion, and ordered their detention in jail.
12
Since only appellants Sion and Disu were arrested, the case proceeded
against them only. Upon arraignment, both pleaded not guilty to the charge
and waived pre-trial.
13
The prosecution's witnesses were Cesar and Felicitas Abaoag, the brother
and the wife of the victim, respectively; Dr. Leopoldo Manalo, San Fabian
Municipal Health Officer; Rosendo Imuslan, barangay captain of Barangay
Binday; and SPO1 Ricardo Abrio. On the other hand, the defense
presented as its witness appellant Disu; appellant Sion; Corazon Sion, wife
of appellant Sion; and Dr. Leopoldo Manalo.
The evidence for the prosecution as established by the testimonies of its
witnesses is partly summarized by the Office of the Solicitor General in the
Brief for the Appellee, as follows:
On or about 7:00 o'clock in the evening of October 16, 1991, Cesar
Abaoag was at the barangay road in front of his house situated in
Binday, San Fabian, Pangasinan. He was with his elder brother Carlos
Abaoag and Ricardo Manuel (p. 6, TSN, August 20, 1992) when all of
a sudden, Ronnie Manuel arrived coming from the west complaining
that he was being chased by Felipe Sion and Johnny Juguilon (p. 7,
TSN, id.). On that same occasion, Fernando Abaoag also arrived at the
scene. He said to Ronnie, "why Ronnie, you are making trouble again."
The latter answered, "I am not making trouble uncle because while I
was inside the house of Eling Alcantara, Felipe Sion and Johnny
Juguilon were trying to stab me. (p. 8, TSN, id.). Seconds later, Felipe
Sion and Johnny Juguilon appeared and started throwing stones.
Fernando Abaoag told them to stop throwing stones but before they
desisted and left, one of them uttered "even you Andong, you are
interfering, you will also have your day, vulva of your mother, you
Abaoag[s]" (pp. 9-10, id.) Apparently, the utterance was directed
against Fernando Abaoag whose nickname is Andong.
Subsequently thereafter, at about 9:00 o'clock on that same evening,
Cesar Abaoag while inside his house lying down on his bed heard the
sound of stone throwing at the nearby house of his brother Fernando.
He went out to see who were throwing stones (14, TSN, id.). When
already near the house of Lolly Galdones, Cesar Abaoag saw his
brother Fernando already outside his house. He also saw Johnny
Juguilon, one of the members of the group of stone throwers, hurl a big
stone against Fernando. Upon being hit on the left eyebrow, Fernando
turned his back towards Felix Sion, Edong Sion and Miguel Disu who
were also throwing stones towards his direction. On the other hand,
appellant Felipe Sion, who was near the victim, with a very sharp
double bladed dagger, stabbed Fernando, first on the left side just
below the armpit, then on the left waistline and finally on the right side
of the neck below the jaw (pp. 18-19, TSN, id.).
Cesar tried to extend help to his brother but Miguel Disu hurled a stone
on him which landed on his right side below the armpit. When he heard
Felipe Sion shouting to his companions saying, "we will also kill
Cesar," Cesar desisted in helping brother (pp. 22-23, TSN, id.).
Instead, he ran to his brother's house and informed Felicitas, the wife,
about the helpless condition of Fernando (pp. 22-23, TSN, id.). Upon
being informed, Felicitas accompanied by Carlos Abaoag, went to the
place of the incident. The assailants were no longer there. She only
saw her husband lying prostate on the ground very weak in the state of
dying. When she inquired what happened, Fernando answered
"naalaak" which in English means "I was hit" (pp. 4-5, TSN, July 27,
1992). Fernando told his wife that his assailants were Felipe Sion,
Miguel Disu, Edong Sion, Johnny Juguilon and Felix Sion (p. 6,
TSN, id.)
The victim was rushed to St. Blaise Hospital in San Fabian but he was
pronounced dead on arrival (pp. 24-25, TSN, August 20, 1992).
Dr. Leopoldo Manalo, a Municipal Health Officer of San Fabian,
Pangasinan conducted post mortem examination (Exh. A) on the body
of the victim. The result of his findings showed that Fernando Abaoag
sustained the following injuries, to wit:
 1) stab wound 1 1/2 inches in width, 9 inches in depth between 10-11,
ICS, mid axillary area slanting upwards hitting the left lobe of the lung
2) stab wound right lateral side of the neck 1 1/2 inches in width, 1 1/2
inch in depth
3) stab wound 1 1/2 inches in width, 1 1/2 in depth mid scapular area,
left
4) contusion superimposed abrasion left eyebrow. 14
Dr. Manalo further testified that the stab wounds were caused by a sharp-
pointed instrument, possibly a dagger, with the first wound hitting the lower
lobe of the left lung causing severe bleeding and its eventual collapse. He
determined the cause of death to be hemorrhagic shock secondary to
multiple stab wounds. 15
Barangay Captain Imuslan testified that he and Kagawad Fernando
Gatchalian, on the night of the incident, found a small bolo and a bloodied
double-bladed weapon (dagger) near the scene of the crime.  Cesar
16
Abaoag recognized this weapon as the one used by appellant Sion in
stabbing the
victim.  On her part, Felicitas Abaoag declared that she spent more than
17
P11,000.00 for the wake and burial of her husband whose death saddened
her, she being left alone to take care of their children.
18
In his defense, appellant Sion, brother and cousin of accused Edong  Sion
19
and Felix Sion alias "Ellet," respectively, admitted that on the night in
question, he participated in a stone-throwing incident and "free-for-all
rumble" between his group (the Sions and Johnny Juguilon) on one hand,
and the Abaoags and Manuels, on the other. However, he professed his
innocence, claiming that it was his brother Edong Sion and Johnny
Juguilon who stabbed the victim.  His version of the incident was
20
summarized by the trial court, thus:
On October 16, 1991 at about 7:00 p.m., he, together with Johnny
Juguilon went to the house of Eling Alcantara as he wanted to talk
with his son, his friend. Ronnie Manuel was already there when
they arrived. While at the place, Johnny Juguilon and Ronnie
Manuel came out and started fighting with each other. Ronnie and
Manuel ran and proceeded to the place of his cousin. He was
pacifying Johnny Juguilon and Ronnie Manuel but Johnny Juguilon
threw stones at Ronnie Manuel. At this point, Fernando Abaoag
intervened in the quarrel saying, "vulva of your mother Johnny, you
are too much, you will also have your day." Johnny Juguilon
answered "vulva of your mother Andoy, do not interfere because
you are not our enemy." After the verbal exchange, he took Johnny
Juguilon to their (Sion's) house . . . . At about 9:00 p.m., that same
evening, they stoned their house, its sides and the stairs. He and
Idong and Johnny Juguilon looked for Cesar Abaoag, Ronnie
Manuel, Ricky Manuel, Andong Abaoag and two (2) other
companions. They were at the place of Marta Soriano. After that,
they still threw stones towards them. There was a free for all
rumble between Ronnie Manuel, Ricky Manuel, the Abaoags and
Idong Sion, and Johnny Juguilon, Ellet Sion and himself, in front of
the house of Loly Galdones. He denied the testimony of Cesar
Abaoag that he stabbed Fernando Abaoag three times and before
he was stabbed Johnny Juguilon stoned him (Fernando Abaoag). It
was Idong Sion and Johnny Juguilon who stabbed Fernando
Abaoag. After Fernando Abaoag was stabbed, they ran away. His
group also ran away. He went home and rushed towards Johnny
Juguilon because he was stabbed. He brought Juguilon to the St.
Blaise Clinic and Hospital. He did not report the incident to
Barangay Captain Rosendo Imuslan. On October 17, 1:00 p.m., he
presented himself to Kagawad Lagman who brought him to the
Police Station . . . .
21
In his defense, appellant Disu offered denial and alibi. He declared that he
had no participation in the killing of Fernando Abaoag, and during the
whole night of 16 October 1991, while the quarrel, stoning and stabbing
incidents in question were taking place, he was resting and sleeping in the
house of his employer, Felicidad Gatchalian, after driving the latter's
jeepney the entire day. However, before proceeding home from work that
afternoon, he went to the store of Oping Juguilon to buy cigarettes and
dropped by the house of appellant Sion where he stayed for about five
minutes. He only learned about the killing the following morning when he
was told that he was one of the suspects. He was arrested about a month
after the incident.
22
On rebuttal, Cesar Abaoag refuted the testimony of appellant Sion. Cesar
asserted that neither his brothers, the Manuels nor himself threw stones at
Sion's house; there was no free-for-all fight between the Sions and the
Abaoags; Johnny Juguilon and Edong Sion merely threw stones at, but did
not stab, Fernando Abaoag; and it was only appellant Sion who stabbed
Fernando Abaoag. 23
After the conclusion of trial, the court granted appellants' motion to file a
memorandum within fifteen days. Despite the extension given, appellants'
counsel did not file the memorandum. Thus, in its order of 11 December
1992, the trial court declared the case submitted for decision.  24
On 8 February 1993, the trial court promulgated its decision,  the
25
dispositive portion quoted in the introductory paragraph of this ponencia.
As to the culpability of appellants Sion and Disu, the trial court found:
The defense of accused Federico Disu alias Miguel Disu and
Felipe Rodriguez Sion, Jr. deserve scant consideration. Cesar
Abaoag narrated in detail how his brother Fernando Abaoag was
stoned by accused Johnny Juguilon, Federico Disu and Felix Sion
and how accused Felipe Sion stabbed Fernando Abaoag three
times. Cesar Abaoag saw Johnny Juguilon throw stone hitting the
left eyebrow of Fernando Abaoag, and when his brother (Fernando
Abaoag) turned left, accused Federico Disu alias Miguel Disu,
Idong Sion and Felix Sion simultaneously threw stones toward him
(Fernando Abaoag). Then, at a distance of two (2) meters, Cesar
Abaoag saw accused Felipe Sion stab Fernando Abaoag three
times, hitting the left side below the armpit, then on the left
waistline and the right side of the neck below the jaw of the
deceased with the use of a sharp double bladed dagger.
Cesar Abaoag could not be mistaken in the identification because
he was two meters away when he saw the accused Felipe Sion
stab his brother, and, moreover, there was a light illuminating the
place of the incident coming from the houses of Marta Soriano and
Loly Caldones. Cesar Abaoag identified the dagger (Exhibit D).
The narrations of Cesar Abaoag are bolstered by the testimony of
Dr. Leopoldo Manalo, the doctor who conducted the postmortem
examination on the cadaver of Fernando Abaoag. Dr. Manalo
stated that "stab wound 1 1/2 inches in width, 9 inches in depth
between 10-11 ICS, mid-axillary area slanting upwards hitting the
left lobe of the lung" is located below the left armpit. The second
stab wound, "stab wound right lateral side of the neck 1 1/2 inches
in width, 1 1/2 in depth," is located at the right side of the nec[k] at
the back. The doctor stated that the wounds were caused possibly
by a dagger.
Finally, it is well to quote the statement uttered by Fernando
Abaoag in the presence of Felicitas Abaoag, to wit: "naalaak, which
means, I was hit, take note of this because I cannot survive these
injuries of mine". Fernando Abaoag told Felicitas Abaoag, Felipe
Sion, Miguel Disu, Idong Sion, Johnny Juguilon and Felix Sion
stabbed him. (2-12 tsn July 27, 1992). This is a dying declaration
because it was made under a consciousness of impending death
(Section 37, Rule 130, Rules of Court).  26
The trial court likewise found that conspiracy was duly established by the
prosecution, thus:
As stated in the decision, accused Johnny Juguilon threw stone,
hitting the left eyebrow of Fernando Abaoag, and Edong Sion, Felix
Sion and Federico (Miguel) Disu simultaneously threw stones upon
the deceased, while accused Felipe Sion alias "Junior" stabbed
him (victim) three times, resulting in the latter's death.
27
It then appreciated against appellants (a) the qualifying circumstance of
treachery because the "attack was so sudden that the victim had no time to
defend himself" and (b) the generic aggravating circumstance of cruelty
because "there were three stab wounds" and the first wound — which
"caused severe bleeding and collapse of the lung" and the death of
Fernando Abaoag — "was deliberately augmented by inflicting the other
wounds which are unnecessary for its commission."  It did not, however,
28
appreciate evident premeditation for lack of "substantial" evidence;  nor
29
give the benefit of voluntary surrender in favor of appellant Sion since his
surrender was merely "forced by circumstances," as he "presented himself
to Kagawad Lagman because he was suspected as one of the persons
who stabbed the victim." 30
Appellants, through counsel, seasonably filed their Notice of Appeal. 31
In their eight-page Appellant's Brief, filed by counsel de oficio Atty. Iris L.
Bonifacio,  appellants plead for their acquittal, contending that the trial
32
court erred: (1) in convicting them of murder; (2) in taking into account the
aggravating circumstance of cruelty; (3) in ruling that conspiracy was
established; (4) in not appreciating the presence of voluntary surrender;
and (5) in disregarding the defense of appellant Sion that it was Edong
Sion and Johnny Juguilon who were responsible for the death of Fernando
Abaoag.
In support of their first assigned error, appellants attack the identification
made of them by prosecution witnesses. They claim that if witness Cesar
Abaoag actually saw appellant Sion stab the victim, then Cesar should
have immediately informed Felicitas Abaoag, the victim's wife, of this fact.
Cesar's failure was then unusual and unnatural. Then, too, Felicitas
Abaoag's testimony on her husband's alleged dying declaration was "not
specific" as far as the assailant's identities were concerned because the
victim merely said "naalaak" ("I was hit"), without identifying appellant Sion
as the one who stabbed him; and, her claim that her husband identified all
the five (5) accused as the ones who "stabbed" him was "an impossibility."
Moreover, the prosecution witnesses were limited to relatives of the
victims; "other vital witnesses" — such as Marta Soriano, Loly Galdones,
or Eling Alcantara — should have been presented to corroborate the
"biased" testimonies of Cesar and Felicitas Abaoag.
Appellants further contend that: (1) there was no treachery since the
stabbing of the victim was not "sudden"; (2) cruelty was not proven
because "there is no clear testimony" that the first stab wound was fatal
and the second and third wounds were "unnecessary"; (3) conspiracy
cannot be deduced from the mere fact that all the accused threw stones at
the victim before the stabbing; (4) appellant Sion voluntarily surrendered
even before the police started investigating the case when he was not yet
a suspect; and (5) appellant Sion could not have testified that it was Edong
Sion and Johnny Juguilon who stabbed the victim if such were not true,
considering that the former is his brother and the latter his barriomate; and
(6) appellant Sion bore no grudge against the victim and did not escape.
On the other hand, the Office of the Solicitor General, in its Brief for the
Appellee, supports the trial court's findings and conclusions, except as to
the appreciation of cruelty, which it concedes to be erroneous.
Our careful review of the record of the evidence adduced by the parties
convinces us that prosecution witness Cesar Abaoag positively identified
appellants as being present during the incident in question and saw
appellant Sion stab the victim thrice. As correctly found by the trial court:
Cesar Abaoag could not be mistaken in the identification because
he was two meters away when he saw the accused Felipe Sion
stab his brother, and, moreover, there was a light illuminating the
place of the incident coming from the houses of Marta Soriano and
Loly Caldones. Cesar Abaoag identified the dagger (Exhibit D).
Cesar Abaoag also saw the rest of the accused, including appellant Disu,
throwing stones at the victim. He was definite, however, that it was only
accused Johnny Juguilon who was able to hit the victim at the left eyebrow.
The three stab wounds inflicted by appellant Sion and the injury at the left
eyebrow caused by the stone thrown by Juguilon jibed with the post
mortem findings of Dr. Manalo as he described the injury on the left
eyebrow as "contusion superimposed abrasion left eyebrow."  If Cesar had
33
any ulterior motive to testify against appellant Disu, he could have declared
that it was Disu, and not Juguilon, who hit the victim with a stone. Cesar
then honestly narrated what he observed.
That Cesar did not at once inform Felicitas Abaoag that it was appellant
Sion who stabbed her husband, was not proof, as appellants suggest, that
Cesar was absent from the crime when it was committed. Cesar's
presence was admitted by appellant Sion himself on direct examination,
thus:
Q Did you see Cesar Abaoag on that occasion anywhere near
Fernando Abaoag when you said he was stabbed by Johnny Juguilon
and Idong Sion?
A Yes, sir.  34
Furthermore, Cesar satisfactorily explained his failure to forthwith inform
Felicitas of this fact. At that time, Cesar himself was running away from the
accused who had hit him with a stone. His pressing concern then was to
get someone to help his wounded brother; besides, he was scared of
accused Felix Sion, uncle of appellant Sion, who was a "notorious"
character in their neighborhood.  It is settled that delay in divulging the
35
name of the perpetrator of a crime, if sufficiently explained, does not impair
the credibility of the witness nor destroy its probative value.  In any event,
36
in his sworn statement  which was submitted on 22 October 1991 before
37
Judge Sergio Garcia, he narrated what he had witnessed and mentioned
appellants Sion and Disu as among the perpetrators of the crime.
The identifications of appellants and their co-accused were further
bolstered by the declaration made by the victim to his wife, Felicitas
Abaoag. The trial court correctly characterized this as a "dying
declaration,"  having been made under the consciousness of impending
38
death. The victim was already weak his wife saw him and he knew that he
would not survive the injuries he sustained; he even died a few minutes
later while on the way to the hospital.  When Felicitas saw her husband, he
39
told her what had happened to him, who caused his injuries and that he did
not expect to live, thus:
Q What happened next after that when you met your husband?
 A Immediately asked him what happened to him.
Q And what was the answer of Fernando Abaoag?
A He said, "naalaak," which means, I was hit.
COURT:Q Did you ask him why he said "naalaak"?
A He said he was stabbed and he was injured.
Q What do you mean by word "naalaak"?
A I was hit.
COURT: Proceed.
PROSECUTOR DUMLAO: Q Do you know the reason why he was hit?
A What I understand is that in the course of his pacifying the trouble
between his nephew and the rest, he was stabbed, sir.
Q Aside from the statement of your husband Fernando Abaoag that he
was hit, what else did he say, if you know?
A He said, take note of this because I know I cannot survive with these
injuries of mine.
COURT:Q What else did he tell you aside from that?
A He said, remember that in case I cannot survive with the injuries that
I sustained, the men who stabbed me are Felipe Sion, Miguel Disu,
Idong Sion, Johnny Juguilon and Felix Sion, sir.   (emphasis supplied)
40
We find these statements given by the victim to his wife to have met the
requisites of a dying declaration under Section 37 of Rule 130 of the Rules
of Court, viz: (a) death is imminent and the declarant was conscious of that
fact; (b) the preliminary facts which bring the declaration within its scope
must be made to appear; (c) the declaration relates to the facts or
circumstances pertaining to the fatal injury or death; and (d) the declarant
would have been competent to testify had he survived.  Dying declarations
41
are admissible in evidence as an exception to the hearsay rule because
of necessity and trustworthiness. Necessity, because the declarant's death
renders impossible his taking the witness stand, and it often happens that
there is no other equally satisfactory proof of the crime;
and trustworthiness, for it is "made in extremity, when the party is at the
point of death and every hope of this world is gone; when every motive to
falsehood is silenced, and the mind is induced by the most powerful
consideration to speak the truth.  We find no ulterior motive on the part of
42
Felicitas to fabricate the declarations of her husband.
We likewise find to be without basis appellants' claim that all the
prosecution witnesses were biased due to their relation to the victim's
family. Plainly, witnesses Imuslan (the barangay captain) and Dr. Manalo
were not related to the victim, while the relationship of witnesses Cesar
Abaoag and Felicitas Abaoag to the victim, as brother and wife,
respectively, neither disqualified them as witnesses nor rendered their
testimony unworthy of belief. It is not to be lightly supposed that relatives of
the deceased would callously violate their conscience to avenge the death
of a dear one by blaming it on persons whom they believe to be innocent
thereof.  A witness' relationship to a victim, far from rendering his
43
testimony biased, would even render the same more credible as it would
be unnatural for a relative who is interested in vindicating the crime to
accuse somebody other than the real culprit. 44
Neither was the failure of the prosecution to present other witnesses, such
as those mentioned by the appellants, fatal to the cause of the People. It is
well-settled that the decision as whom to present as witnesses for the
prosecution is addressed to the sound discretion of the prosecutor
handling the case and the non-presentation of certain witnesses by the
prosecution is not a plausible defense.  The prosecution is not obliged to
45
present all possible witnesses, especially if their testimony will only serve
to corroborate that of another eyewitness' testimony, in which case the
former may every well be dispensed with considering that the testimony of
a single witness, if credible and positive to prove the guilt of the accused
beyond reasonable doubt, would suffice. 46
The trial court correctly rejected appellant Sion's defense that it was not he
who stabbed the victim, but his brother Edong Sion and Johnny Juguilon,
both of whom fled after the incident. Constituting a mere denial of Cesar
Abaoag's positive testimony that it was appellant Sion who stabbed the
victim, such must fail in light of the settled rule of evidence that positive
testimony is stronger that negative testimony.  Moreover, the claim was
47
made rather late in the day, casting serious doubt as to its veracity. From
the time that appellant Sion presented himself to Kagawad Lagman and
the police authorities on 17 October 1991, and during his subsequent
incarceration, he never told anyone nor made any statement that he was
not one who stabbed the victim; he did not even so inform his close
relatives, not even his wife who visited him in jail.  Also, during the
48
preliminary investigation, when he had the opportunity to submit counter-
affidavits and other evidence to refute the charges, he did not care to
dispute the statements of Felicitas and Cesar Abaoag identifying him and
detailing his participation in the crime.  He raised this claim for the first
49
time only during his testimony in court almost one (1) year after the
stabbing incident and his initial surrender, and notably, only after the hope
of apprehending Idong Sion and Johnny Juguilon, together with the other
accused, already seemed remote. Such failure to immediately disclose the
information as soon as he was implicated in the crime and his prolonged
silence on a vital matter hardly inspire belief, being unnatural and
inconsistent with ordinary habits of men and common experience.
That appellant Sion did not flee, unlike his brother Edong and Johnny
Juguilon, neither proved his innocence. Non-flight — unlike flight of an
accused which validly serves as a badge of guilt — is simply inaction which
may be due to several factors; hence, it should not be construed as an
indication of innocence. 50
Appellant Sion's claim of lack of ill-feeling or grudge against Fernando
Abaoag was belied and contradicted by his admission in court that just
before the stabbing of the victim, he and his co-accused hurled stones at
and fought with the Abaoags, including Fernando, whom he blamed for
allegedly stoning his house.   It is also belied by his actuation and
51
utterance made earlier in the evening of 16 October 1991 when Fernando
Abaoag interfered in the quarrel between appellant Sion and Fernando's
nephew, Ronnie Manuel, which prompted appellant Sion and Johnny
Juguilon to curse and warn Fernando, thus: "even you Andong [Fernando
Abaoag] you are interfering, you are siding with your nephew Ronnie
Manuel, you have also your day . . . . you Abaoags."  Appellant Sion also
52
admitted that he "had an ill-feeling towards" Ronnie Manuel, the victim's
nephew, because "he was making trouble" inside his jeepney "5 days
before the incident." 53
In light of the positive identification of appellants, appellant Disu's alibi
must fail.
It is settled that alibi is a weak defense for it is easy to concoct and
fabricate; it cannot prevail over and is worthless in the face of the positive
identification by credible witnesses that an accused perpetrated the
crime.  We are unable to discern any plausible reason, and appellant Disu
54
does not offer any, why he should be falsely implicated by Cesar Abaoag
and mentioned in the victim's dying declaration as one of the victim'
assailants, if appellant Disu was not actually present during the incident
and had no participation in the commission of the crime. As to his motive or
lack thereof, appellant Disu claims that he had no misunderstanding with
Fernando Abaoag or his family.  However, Felipe Sion, Jr., disclosed that
55
appellant Disu was close to the Sion clan, which explains why appellant
Disu sympathized with and joined the Sions and Juguilon in assaulting the
victim: Federico Disu was Sion Jr.'s jeepney conductor for five (5) months,
the latter teaching the former how to drive for three (3) months; and when
Disu became a driver himself, they had the same route and saw each other
every day at the poblacion.  Disu even admitted that on 16 October 1991,
56
after 5:00 p.m., he "dropped by" the house of Felipe Sion, which he often
did before. 57
We now rule on the presence or absence of conspiracy. There is
conspiracy when two or more persons come to an agreement concerning
the commission of a felony and decide to commit it.  Direct proof of a
58
previous agreement to commit a crime is not necessary; it may be deduced
from the mode and manner in which the offense was perpetrated, or
inferred from acts of the accused themselves when such point to a joint
purpose design, concerted action and community of interest.  Once
59
conspiracy is established, the act of one is the act of all.
60
In this case, appellants and the other accused were already at the
barangay road of Binday, near the houses of Lolly Galdones and Marta
Soriano, when Fernando Abaoag, who was looking for the persons who
just stoned his house several times, and Cesar Abaoag, arrived.
Immediately, Johnny Juguilon threw a stone at Fernando hitting him on the
left eyebrow; then, Edong, and Felix Sion and appellant Disu,
"simultaneously" threw stones, also at Fernando. As Fernando turned
away from his assailants, appellant Sion "rushed" and stabbed the victim
three (3) times, even as the latter raised his arms saying, "I will not fight
back." When Cesar Abaoag tried to help his brother Fernando, appellant
Disu threw and hit Cesar with a stone. Appellant Sion then commanded his
companions to also kill Cesar, prompting the latter to run away. Then the
assailants fled, leaving behind a small bolo and a dagger. The confluence
of their acts indubitably manifested a community of interest and unity of
purpose and design to take Fernando Abaoag's life.
We also find to be unsupported by evidence appellant's claim, through the
testimony of appellant Sion, that the fatal stabbing of Fernando Abaoag
was a result of a "free-for-all rumble," thereby possibly tempering their
liability to that of causing death in a tumultuous affray under Article 251 of
the Revised Penal Code, which carries a penalty lower than that for
homicide.  In this case, it was ascertained beyond doubt that appellant
61
Sion inflicted the fatal stab wounds; hence, this claim must be rejected.
Having resolved appellants' liability for Fernando Abaoag's death, we now
rule on the circumstances attendant to the commission of the crime.
In convicting appellants of murder, the trial court considered the qualifying
circumstance of treachery, and disregarded the qualifying circumstance of
evident premeditation, which was likewise alleged in the information. We
agree as to the latter as the prosecution failed to prove the essential
elements of evident premeditation, viz: (a) the time when appellants
determined to commit the crime; (b) an act manifestly indicating that they
clung to their determination; and (c) a sufficient lapse of time between such
determination and execution to allow them to reflect upon the
consequences of their act. 62
We disagree, however, with the trial court's finding as regards the
qualifying circumstance of treachery. Under the law, 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 or specifically to ensure its execution, without risk to himself arising
from the defense which the offended party might make.  We find no clear
63
and convincing evidence of treachery. Cesar Abaoag's testimony as to
how his brother was attacked lacks sufficient detail showing conclusively
that the mode and manner of the assault rendered the victim entirely
defenseless. He merely testified that when he and his brother proceeded
west of the barangay road of Binday, he saw Johnny Juguilon stone his
brother and hit him on the left eyebrow. Fernando Abaoag then turned to
the left with his back towards Felix Sion, Edong Sion, Miguel Disu and the
four (4) other unidentified companions, who then "simultaneously" threw
stones at Fernando. "Seconds later," Cesar saw appellant Sion holding a
very sharp double bladed dagger and stab his brother three (3) times;
Fernando Abaoag, when stabbed, "was just standing and said 'I will not
fight.'"  They were six (6) meters away from Johnny Juguilon when the
64
latter first hurled a stone at Fernando which signaled the other accused to
the same. 65
Considering therefore the distance between the assailants and the victim
when the attack commenced, and the fact the three were two (2) waves of
stoning which preceded the stabbing of the victim, these should have
sufficiently forewarned him of the greater danger which loomed and
prompted him to escape. Moreover, in light of the absence of clear details
showing conclusively that the stabbing was inflicted from behind or the
victim was entirely helpless when stabbed, we are not prepared to
conclude that the attack was "so sudden and unexpected" as to render the
victim entirely defenseless. Treachery cannot qualify the killing to murder
when the victim was forewarned of the attack by the assailant, or when the
attack was frontal, or the attack was not so sudden as to have caught the
deceased completely unaware.  Furthermore, the evidence does not
66
disclose that the means of execution were deliberately or consciously
adopted by appellants.
Absent then of any qualifying circumstance, the crime committed was
homicide as defined and penalized under Article 249 of the Revised Penal
Code.
The trial court likewise erred in appreciating against appellants the generic
aggravating circumstance of cruelty,  based solely on the fact that the
67
victim was stabbed thrice, with the first stab wound hitting the lower left
lung causing severe bleeding and its collapse. In fact, appellee concedes
this error of the trial court. Cruelty cannot be appreciated in absence of any
showing that appellants, for their pleasure and satisfaction, caused the
victim to suffer slowly and painfully and inflicted on him unnecessary
physical and moral pain; and, the mere fact that wounds in excess of what
was indispensably necessary to cause death were found on the body of
the victim does not necessarily imply that such wounds were inflicted with
cruelty and with the intention of deliberately intensifying the victim's
suffering.  In the instant case, the evidence only shows that the three (3)
68
stab wounds were delivered in succession, nothing more.
We agree with appellants that appellant Sion is entitled to the benefit of the
mitigating circumstance of voluntary surrender, which requires that "the
offender voluntarily surrendered himself to a person in authority."  Its
69
requisites are: (a) the offender had not been actually arrested; (b) the
offender surrendered himself to a person in authority or to the latter's
agent; and (c) the surrender was voluntary.  For a surrender to be
70
voluntary, it must be spontaneous and show the intent of the accused to
submit himself unconditionally to the authorities, either: (1) because he
acknowledges his guilt; or (2) because he wishes to save them the trouble
and expense incidental to his search and capture. 71
As shown by the records, in the afternoon of 17 October 1991, appellant
Sion "presented" himself to Kagawad Modesto Lagman who, in turn,
"escorted and surrendered" him to the police in the poblacion.  His
72
admission that he surrendered because he was already suspected as one
of the perpetrators of the crime does not make his surrender "forced by
circumstances" as ruled by the trial court. His arrest at that time was
neither imminent nor inevitable. At the time of his surrender, no warrant of
arrest against him had yet been issued, the same having been issued only
on 19 November 1991.  In fact, he was released from custody after a few
73
penalties therefor, and subject to the provision of Article 29 of the Revised
days, and was ordered committed to jail only sometime in June 1992, after Penal Code. Except as so modified, the rest of the challenged judgment
his motion for bail was denied by the trial court on 10 June 1992 and was stands.
thus taken into custody.  This subsequent fact should not diminish nor
74

erase the favorable effect of Felipe Sion Jr.'s voluntary surrender on 17

October 1991. As has been held, whatever the accused's reason for
surrendering — either the fear of reprisal from victim's relatives or, in this
case, his knowledge that he was already a suspect — "does not gainsay
the spontaneity of the surrender, nor alter the fact that by giving himself up,
he saved the State the time and trouble of searching for him until
arrested."75

We disagree with Appellee's submission that there was no voluntary

surrender because appellant Sion surrender to a mere barangay
"Kagawad" or Sangguniang Barangay member, and not to the police
authorities, implying that the former is not a person in authority.  This
76

ignores Section 388 of the Local Government Code of 1991 which

expressly provides, in part, that "[f]or purposes of the Revised Penal Code,
the punong barangay, sangguniang barangay members, and members of
the lupong tagapamayapa in each barangay shall be deemed as persons
in authority in their jurisdictions . . . ."  This law expands the definition of a
77

person in authority under the Revised Penal Code, wherein among the
barangay officials, only the barangay captain or chairman, now
called Punong Barangay, is expressly considered a person in authority, as
provided in Article 152 thereof. Thus, in addition to the Punong Barangay,
the members of the Sangguniang Barangay, or Kagawads, and members
of the Lupong Tagapayapa are now considered not merely as agents of,
but as persons, in authority. 78

WHEREFORE, the challenged decision of Branch 44 (Dagupan City) of the

Regional Trial Court of the First Judicial Region in Criminal Case No. D-
10796 is MODIFIED. As modified, appellants FELIFE
SION, alias "JUNIOR" or FELIFE RODRIGUEZ, JR., and FEDERICO
DISU, alias "MIGUEL," are hereby declared GUILTY beyond reasonable
doubt, as principals, of the crime of HOMICIDE as defined and penalized in
Article 249 of the Revised Penal Code, with the former entitled to the
mitigating circumstance of voluntary surrender, and applying the
Indeterminate Sentence Law, they are sentenced, respectively, to suffer an
indeterminate penalty ranging from eight (8) years of prison
mayor minimum, as minimum, to fourteen (14) years and eight (8) months
of reclusion temporal as maximum, and an indeterminate penalty ranging
from ten (10) years and one (1) day of prision mayor maximum, as
minimum, to seventeen (17) years, four (4) months and one (1) day
of reclusion temporal minimum as maximum, with all the accessory
G.R. No. 110994 October 22, 1999
PEOPLE OF THE PHILIPPINES, vs.
CRESENCIANO MARAMARA alias "Cresing," accused-appellant.
PARDO, J.:
The case is an appeal from the decision   of the Regional Trial Court,
1 and rushed Miguelito to the Pio Duran Hospital where the latter died early
Masbate, Masbate, Branch 44, convicting accused-appellant Cresenciano
Maramara of murder and sentencing him to suffer the penalty of reclusion
perpetua and to pay the victim's heirs the amount of P10,000.00 as
medical and funeral expenses and P50,000.00 as moral damages.
On January 23, 1992, 4th Assistant Provincial Prosecutor Romeo C.
Sampaga filed with the Regional Trial Court an information   for murder
2 a gunshot wound, Miguelito's body bore a 4 cm. lacerated wound at the left
against accused-appellant, alleging:
That on November 18, 1991, in the evening thereof, at Barangay Calpi,
Municipality of Claveria, Province of Masbate, Philippines and within
the jurisdiction of this Honorable Court, the said accused, with intent to
kill, evident premeditation, treachery and taking advantage of
nighttime, did then and there wilfully, unlawfully and feloniously attack,
assault and shoot with a handgun one Miguelito Donato, hitting the
latter on the chest, thereby inflicting wound which caused his death.
At his arraignment on March 25, 1992,   accused-appellant pleaded not
3
guilty to the crime charged. Trial commenced thereafter.
The prosecution's version of the killing of Miguelito Donato, as culled from
the testimonies of his younger brother Ricardo Donato   and father
4
Regarder Donato,   is as follows:
5
A benefit dance sponsored by the Calpi Elementary School Parents-
Teachers Association of which accused-appellant is the president, was
held in the yard of accused-appellant's house in Barangay Calpi, Claveria,
Masbate in the evening of November 18, 1991. At about 12 midnight, while
Ricardo Donato was dancing with a certain Rowena del Rosario, one
Dante Arce, a friend of accused-appellant, approached Ricardo Donato
and boxed him on the chest. Frightened, Rowena ran away while Ricardo
Donato scampered toward the fence for safety. Miguelito Donato was
about two (2) meters away from where Ricardo Donato stayed at the
fence. Not for long, accused-appellant took his handgun tucked in his waist
and fired at victim Miguelito Donato, hitting the latter on the left breast.
Ricardo Donato tried to help his fallen brother Miguelito but somebody
struck Ricardo's head with an iron bar which knocked him out for about
three (3) minutes. When Ricardo regained consciousness, he hurried
home and informed his parents of what happened to their son Miguelito. 1âwphi1.nêt
Regarder Donato, Miguelito's father, immediately went to the crime scene
in the morning of the next day (November 19, 1991). Before Miguelito
expired, Regarder Donato asked who shot him and Miguelito replied that it
was accused-appellant.  6
Dr. Nora L. Presbitero conducted a post-mortem examination of Miguelito's
cadaver and his autopsy and his autopsy report   revealed that aside from
7
temporal area, a 4 cm. incised wound at the left parietal area and a 5.5 cm.
incised wound at the right iliac area. Dr. Presbitero   explained that the
8
three (3) wounds were caused by blunt and sharp instruments and
considered the possibility that all four (4) wounds could have been inflicted
by more than two (2) persons. She also testified that accused-appellant
was formerly her patient whom she diagnosed as suffering from empyema.
The defense had a different story.   At about 11:00 in the evening, brothers
9
Ricardo and Miguelito Donato arrived at the benefit dance and approached
the dancing pair of Rowena del Rosario and Dante Arce. Then Ricardo and
Miguelito ganged-up on Dante Arce. Accused-appellant, who was about
eight (8) meters away, rushed to the scene to pacify the trio. Ricardo held
accused-appellant's hands at his back and then Miguelito repeatedly
stabbed accused-appellant on different parts of his body. Accused-
appellant regained consciousness at the Claveria hospital where Dr. Gil
Geñorga treated him for a few days, then transferred him to the Pio Duran
Hospital. There was no way accused-appellant could have resisted
Miguelito's attack, much less was he capable of inflicting injury on
Miguelito, since the stronger Ricardo was holding accused-appellant's
hands and was dragging him away while Miguelito kept lunging a six-inch
bladed weapon at him.
Dr. Gil Geñorga testified   that he attended to accused-appellant at the
10
Claveria Hospital in the early morning of November 19, 1991. Accused-
appellant suffered four (4) penetrating stab wounds on different parts of his
body — two on the stomach, one on the left nipple and one on the left arm.
Dr. Geñorga had to open accused-appellant's abdomen (exploratory
laparatomy) to determine what internal organs were affected. Although he
was accused-appellant's attending physician, Dr. Geñorga never asked the
details of the stabbing incident nor the identity of assailant, as he was
purely concerned with the treatment of accused-appellant's injuries.
On the basis of the prosecution's reconstruction of the events that
transpired on that tragic night of November 18, 1991, on May 27, 1993, the
trial court rendered a guilty verdict, the dispositive portion of which reads:
WHEREFORE, finding the accused Cresenciano Maramara guilty
beyond reasonable doubt of the crime of Murder and without any
mitigating circumstances and the existence of treachery in using a
firearm in taking the life of Miguelito Donato, he is hereby sentenced to
suffer the penalty of RECLUSION PERPETUA to be served at the
National Penitentiary. He is further ordered to pay and/or reimburse the
family of the victim the amount of P10,000.00 as medical expenses
and maintenance during the wake; and the amount of P50,000.00 as
moral damages and to pay the cost of the suit. IT IS SO ORDERED.
Hence, this appeal.
Before us, accused-appellant challenges the findings of the trial court in
the hope of securing an acquittal or, at the least, being held liable only for
the death of Miguelito Donato in a tumultuous affray as defined under
Article 251 of the Revised Penal Code.
We cannot accept any of accused-appellant's submissions.
In the main, accused-appellant would assail the credibility of prosecution
witnesses Ricardo and Regarder Donato whose testimonies formed the
principal basis for his conviction. The conflicting claims of the prosecution
and the defense on how Miguelito Donato died is an issue that ultimately
and unavoidably goes into the question of whom to believe among the
witnesses. The issue of credibility requires a determination that is
concededly best left to the trial court with its unique position of having been
enabled to observe that elusive and incommunicable evidence of the
deportment of witnesses on the stand.   In the absence of any showing
11
that the trial court's calibration of credibility is flawed, this Court is bound by
its assessment.  12
Guided by these long standing doctrinal pronouncements, we find no
reason to disturb the trial court's assessment of (1) Ricardo Donato's
eyewitness account of how accused-appellant shot Miguelito Donato and
(2) Regarder Donato's recollection of his son Miguelito's dying declaration,
as truthful testimonies coming from credible witnesses. The fact of
relationship of prosecution witnesses Ricardo and Regarder Donato to the
victim Miguelito Donato does not necessarily place them in bad light.
Relationship per se does not give rise to a presumption of bias or ulterior
motive, nor does it ipso facto impair the credibility or tarnish the testimony
of a witness.   While revenge is a normal reaction in a person who has lost
13
a loved one because of a crime, it does not follow that the revenge would
be directed aimlessly so as to include innocent persons.   In fact, family
14
members who have witnessed the killing of a dear one usually strive to
remember the face of the assailant.   Such relatives are naturally
15
interested in implicating only the real culprit, for otherwise, the latter would
thereby gain immunity.   Thus, where there is no evidence and nothing to
16
indicate that the principal witnesses for the prosecution were actuated by
improper motive, the presumption is that they were not so actuated and
their testimonies are entitled to full faith and credit.   We have further ruled
17
that there is absolutely nothing in this jurisdiction which disqualifies a
person from testifying in a criminal case in which a relative is invoked, if the
former was really at the scene of the crime and witnessed the execution of
the criminal
act. 
18
Regarder Donato's testimony regarding Miguelito's identification of the
accused-appellant as his assailant certainly qualifies as a dying declaration
that is worthy of credence. For a dying declaration to be admissible in
evidence, these requisites must concur: (1) that death is imminent and the
declarant is conscious of that fact; (2) that the declaration refers to the
cause and surrounding circumstances of such death; (3) that the
declaration relates to facts which the victim is competent to testify to; (4)
that the declarant thereafter dies; and (5) that the declaration is offered in a
criminal case wherein the declarant's death is the subject of inquiry.   The
19
degree and seriousness of the wounds suffered by the victim Miguelito
Donato and the fact that his death supervened shortly thereafter may be
considered as substantial evidence that the declaration was made by him
with the full realization that he was in a dying condition.   The victim
20
Miguelito Donato's dying declaration having satisfied all these requisites, it
must be considered as an evidence of the highest order because, at the
threshold of death, all thoughts of fabrication are stilled. A victim's
utterance after sustaining a mortal wound may be considered pure
emanations of the incident.  21
There is no merit in accused-appellant's position that he should be held
liable only for death caused in a tumultuous affray under Article 251 of the
Revised Penal Code. It was in such situation that accused came at the
scene and joined the fray purportedly to pacify the protagonists when kindred terms nor governed by a coincident set of rules, each must be
Miguelito attacked him causing four (4) stab wounds in different parts of his separately identified and independently justified."   Consequently, the
29

body — two on the stomach, one on the left nipple, and one on the left amount of P50,000.00 awarded by the trial court as moral damages must
arm. Then accused-appellant with his handgun shot Miguelito. 1âwphi1.nêt be considered as civil indemnity. 
30

Assuming that a rumble or a free-for-all fight occurred at the benefit dance,
Article 251 of the Revised Penal Code cannot apply because prosecution
witnesses Ricardo and Regarder Donato positively identified accused-
appellant as Miguelito Donato's killer. 
22
While accused-appellant himself suffered multiple stab wounds which, at
first blush, may lend verity to his claim that a rumble ensued and that victim
Miguelito inflicted upon him these wounds, the evidence is inadequate to
consider them as a mitigating circumstance because the defense's version
stands discredited in light of the more credible version of the prosecution
as to the circumstances surrounding the Miguelito's death.
WHEREFORE, the Court hereby MODIFIES the judgment appealed from.
The Court finds accused-appellant Cresenciano Maramara guilty beyond
reasonable of homicide, defined and penalized under Article 249 of the
Revised Penal Code, for the killing of Miguelito Donato without the
attendance of any modifying circumstance. Accordingly, the Court hereby
SENTENCES accused-appellant Cresenciano Maramara to suffer the
indeterminate penalty of ten (10) years of prision mayor, as minimum, to
seventeen (17) years, and four (4) months of reclusion temporal, as
maximum, with all its accessory penalties, and to pay the heirs of Miguelito
Donato in the amount of P10,000.00 as actual damages and P50,000.00
as death indemnity.1âwphi1.nêt

We do not subscribe, however, to the trial court's appreciation of treachery

which, we note, was discussed only in the dispositive portion of the
decision and which was based solely on the fact that appellant used a
firearm in killing the victim Miguelito Donato. The use of a firearm is not
sufficient indication of treachery. In the absence of any convincing proof
that accused-appellant consciously and deliberately adopted the means by
which he committed the crime in order to ensure its execution, the Court
must resolve the doubt in favor of accused-appellant.   And where
23

treachery is not adequately proved, the accused-appellant can be

convicted only of homicide. 24

As accused-appellant is liable for homicide, it is the penalty for homicide

that shall be imposed. The penalty prescribed for homicide is reclusion
temporal.   There was attendant neither mitigating nor aggravating
25

circumstances so that the prescribed penalty of reclusion temporal shall be

imposed in its medium period.   Applying the Indeterminate Sentence Law,
26

accused-appellant may be sentenced to an indeterminate penalty within

the range of the penalty next lower in degree to that prescribed for the
offense, that is, prision mayor, as the minimum, and within the range
of reclusion temporal in its medium period, as the maximum.  27

As to the damages awarded, the trial court erred in awarding moral

damages in lieu of civil indemnity. Moral damages may not be awarded if
there is no legal basis therefor.   Nor it may be imposed in substitution of
28

civil indemnity. "The two awards — one for actual damages and the other
for moral damages — cannot be dealt with in the aggregate; neither being
G.R. Nos. 108280-83 November 16, 1995
ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS
SANTOS, and JOSELITO TAMAYO, petitioners, vs.
PEOPLE OF THE PHILIPPINES and COURT OF
APPEALS, respondents.
G.R. Nos. 114931-33 November 16, 1995
THE PEOPLE OF THE PHILIPPINES, vs.
ANNIE FERRER, accused, ROMEO SISON, NILO PACADAR, JOEL
TAN, RICHARD DE LOS SANTOS, and JOSELITO TAMAYO,  Torres, then Deputy Superintendent of the Western Police District, arrived
PUNO, J.:
The case before us occurred at a time of great political polarization in the
aftermath of the 1986 EDSA Revolution. This was the time when the
newly-installed government of President Corazon C. Aquino was being
openly challenged in rallies, demonstrations and other public fora by
"Marcos loyalists," supporters of deposed President Ferdinand E. Marcos.
Tension and animosity between the two (2) groups sometimes broke into
violence. On July 27, 1986, it resulted in the murder of Stephen Salcedo, a
known "Coryista."
From August to October 1986, several informations were filed in court
against eleven persons identified as Marcos loyalists charging them with
the murder of Salcedo. Criminal Case No. 86-47322 was filed against Raul
Billosos y de Leon and Gerry Nery y Babazon; Criminal Case No. 86-
47617 against Romeo Sison y Mejia, Nilo Pacadar y Abe and Joel Tan y
Mostero; Criminal Case No. 86-47790 against Richard de los Santos y
Arambulo; Criminal Case No. 86-48538 against Joselito Tamayo y Ortia;
and Criminal Case No. 86-48931 against Rolando Fernandez y Mandapat.
Also filed were Criminal Cases Nos. 86-49007 and 86-49008 against Oliver
Lozano and Benjamin Nuega as well as Annie Ferrer charging them as
accomplices to the murder of Salcedo.
The cases were consolidated and raffled to the Regional Trial Court,
Branch XLIX, Manila. All of the accused pleaded not guilty to the charge
and trial ensued accordingly. The prosecution presented twelve witnesses,
including two eyewitnesses, Ranulfo Sumilang and Renato Banculo, and
the police officers who were at the Luneta at the time of the incident. In
support of their testimonies, the prosecution likewise presented
documentary evidence consisting of newspaper accounts of the incident
and various photographs taken during the mauling.
The prosecution established that on July 27, 1986, a rally was scheduled
to be held at the Luneta by the Marcos loyalists. Earlier, they applied for a
permit to hold the rally but their application was denied by the authorities.
Despite this setback, three thousand of them gathered at the Rizal
Monument of the Luneta at 2:30 in the afternoon of the scheduled day. Led
by Oliver Lozano and Benjamin Nuega, both members of the Integrated
Bar of the Philippines, the loyalists started an impromptu singing contest,
recited prayers and delivered speeches in between. Colonel Edgar Dula
and asked the leaders for their permit. No permit could be produced.
Colonel Dula Torres thereupon gave them ten minutes to disperse. The
loyalist leaders asked for thirty minutes but this was refused. Atty. Lozano
turned towards his group and said "Gulpihin ninyo ang lahat ng mga Cory
infiltrators." Atty. Nuega added "Sige, sige gulpihin ninyo!" The police then
pushed the crowd, and used tear gas and truncheons to disperse them.
The loyalists scampered away but some of them fought back and threw
stones at the police. Eventually, the crowd fled towards Maria Orosa Street
and the situation later stabilized.
1
At about 4:00 p.m., a small group of loyalists converged at the Chinese
Garden, Phase III of the Luneta. There, they saw Annie Ferrer, a popular
movie starlet and supporter of President Marcos, jogging around the
fountain. They approached her and informed her of their dispersal and
Annie Ferrer angrily ordered them "Gulpihin ninyo and mga Cory hecklers!"
Then she continued jogging around the fountain chanting "Marcos pa rin,
Marcos pa rin, Pabalikin si Marcos, Pabalikin si Marcos, Bugbugin ang
mga nakadilaw!" The loyalists replied "Bugbugin!" A few minutes later,
Annie Ferrer was arrested by the police. Somebody then shouted
"Kailangang gumanti, tayo ngayon!" A commotion ensued and Renato
Banculo, a cigarette vendor, saw the loyalists attacking persons in yellow,
the color of the "Coryistas." Renato took off his yellow shirt.  He then saw a
2
man wearing a yellow t-shirt being chased by a group of persons shouting
"Iyan, habulin iyan. Cory iyan!" The man in the yellow t-shirt was Salcedo
and his pursuers appeared to be Marcos loyalists. They caught Salcedo
and boxed and kicked and mauled him. Salcedo tried to extricate himself
from the group but they again pounced on him and pummelled him with fist
blows and kicks hitting him on various parts of his body. Banculo saw
Ranulfo Sumilang, an electrician at the Luneta, rush to Salcedo's aid.
Sumilang tried to pacify the maulers so he could extricate Salcedo from
them. But the maulers pursued Salcedo unrelentingly, boxing him with
stones in their fists. Somebody gave Sumilang a loyalist tag which
Sumilang showed to Salcedo's attackers. They backed off for a while and
Sumilang was able to tow Salcedo away from them. But accused Raul
Billosos emerged from behind Sumilang as another man boxed Salcedo on
the head. Accused Richard de los Santos also boxed Salcedo twice on the
head and kicked him even as he was already fallen.  Salcedo tried to stand
3
but accused Joel Tan boxed him on the left side of his head and
ear.  Accused Nilo Pacadar punched Salcedo on his nape, shouting: "Iyan,
4
Cory Iyan. Patayin!"  Sumilang tried to pacify Pacadar but the latter lunged
5
at the victim again. Accused Joselito Tamayo boxed Salcedo on the left
jaw and kicked him as he once more fell. Banculo saw accused Romeo
Sison trip Salcedo and kick him on the head, and when he tried to stand,
Sison repeatedly boxed him.  Sumilang saw accused Gerry Neri approach
6
the victim but did not notice what he did.
7 The mauling of Salcedo was witnessed by bystanders and several press
Salcedo somehow managed to get away from his attackers and wipe off
the blood from his face. He sat on some cement steps  and then tried to
8 and international attention. This prompted President Aquino to order the
flee towards Roxas boulevard to the sanctuary of the Rizal Monument but
accused Joel Tan and Nilo Pacadar pursued him, mauling Sumilang in the
process. Salcedo pleaded for his life exclaiming "Maawa na kayo sa akin.
Tulungan ninyo ako." He cried: "Pulis, pulis. Wala bang pulis?" 9
The mauling resumed at the Rizal Monument and continued along Roxas
Boulevard until Salcedo collapsed and lost consciousness. Sumilang
flagged down a van and with the help of a traffic officer, brought Salcedo to
the Medical Center Manila but he was refused admission. So they took him
to the Philippine General Hospital where he died upon arrival.
Salcedo died of "hemorrhage, intracranial traumatic." He sustained various
contusions, abrasions, lacerated wounds and skull fractures as revealed in
the following post-mortem findings:
Cyanosis, lips, and nailbeds.
Contused-abrasions: 6.0 x 2.5 cm., and 3.0 x 2.4 cm., frontal region,
right side; 6.8 x 4.2 cm., frontal region, left side; 5.0 x 4.0 cm., right
cheek; 5.0 x 3.5 cm., face, left side; 3.5 x 2.0 cm., nose; 4.0 x 2.1 cm.,
left ear, pinna; 5.0 x 4.0 cm. left suprascapular region; 6.0 x 2.8 cm.,
right elbow.
Abrasions: 4.0 x 2.0 cm., left elbow; 2.0 x 1.5 cm., right knee.
Lacerated wounds: 2.2 cm., over the left eyebrow; 1.0 cm., upper lip.
Hematoma, scalp; frontal region, both sides; left parietal region; right
temporal region; occipital region, right side.
Fractures, skull; occipital bone, right side; right posterior cranial fossa;
right anterior cranial fossa.
Hemorrhage, subdural, extensive.
Other visceral organs, congested.
Stomach, about 1/2 filled with grayish brown food materials and fluid. 10
people, both local and foreign. The press took pictures and a video of the
event which became front-page news the following day, capturing national
Capital Regional Command and the Western Police District to investigate
the incident. A reward of ten thousand pesos (P10,000.00) was put up by
Brigadier General Alfredo Lim, then Police Chief, for persons who could
give information leading to the arrest of the killers.  Several persons,
11
including Ranulfo Sumilang and Renato Banculo, cooperated with the
police, and on the basis of their identification, several persons, including
the accused, were apprehended and investigated.
For their defense, the principal accused denied their participation in the
mauling of the victim and offered their respective alibis. Accused Joselito
Tamayo testified that he was not in any of the photographs presented by
the prosecution  because on July 27, 1986, he was in his house in Quezon
12
City.  Gerry Neri claimed that he was at the Luneta Theater at the time of
13
the
incident.   Romeo Sison, a commercial photographer, was allegedly at his
14
office near the Luneta waiting for some pictures to be developed at that
time.   He claimed to be afflicted with hernia impairing his mobility; he
15
cannot run normally nor do things forcefully.   Richard de los Santos
16
admits he was at the Luneta at the time of the mauling but denies hitting
Salcedo.   He said that he merely watched the mauling which explains why
17
his face appeared in some of the photographs.   Unlike the other accused,
18
Nilo Pacadar admits that he is a Marcos loyalist and a member of the Ako'y
Pilipino Movement and that he attended the rally on that fateful day.
According to him, he saw Salcedo being mauled and like Richard de los
Santos, merely viewed the incident.   His face was in the pictures because
19
he shouted to the maulers to stop hitting Salcedo.   Joel Tan also testified
20
that he tried to pacify the maulers because he pitied Salcedo. The maulers
however ignored him.  21
The other accused, specifically Attys. Lozano and Nuega and Annie Ferrer
opted not to testify in their defense.
On December 16, 1988, the trial court rendered a decision finding Romeo
Sison, Nilo Pacadar, Joel Tan, Richard de los Santos and Joselito Tamayo
guilty as principals in the crime of murder qualified by treachery and
sentenced them to 14 years 10 months and 20 days of reclusion
temporal as minimum to 20 years of reclusion temporal as maximum.
Annie Ferrer was likewise convicted as an accomplice. The court,
however, found that the prosecution failed to prove the guilt of the other
accused and thus acquitted Raul Billosos, Gerry Nery, Rolando
Fernandez, Oliver Lozano and Benjamin Nuega. The dispositive portion of
the decision reads as follows:
WHEREFORE, judgement is hereby rendered in the aforementioned cases
as follows:
1. In "People versus Raul Billosos and Gerry Nery," Criminal Case No. 86-
47322, the Court finds that the Prosecution failed to prove the guilt of the
two (2) Accused beyond reasonable doubt for the crime charged and
hereby acquits them of said charge;
2. In "People versus Romeo Sison, et al.," Criminal Case No. 86-47617,
the Court finds the Accused Romeo Sison, Nilo Pacadar and Joel Tan,
guilty beyond reasonable doubt, as principals for the crime of Murder,
defined in Article 248 of the Revised Penal Code, and, there being no other
mitigating or aggravating circumstances, hereby imposes on each of them
an indeterminate penalty of from FOURTEEN (14)YEARS, TEN (10)
MONTHS and TWENTY (20) DAYS, of Reclusion Temporal, as minimum,
to TWENTY (20) DAYS, of Reclusion Temporal, as minimum, to TWENTY
(20) YEARS of Reclusion Temporal, as Maximum;
3. In "People versus Richard de los Santos," Criminal Case No. 86-47790,
the Court finds the Accused Richard de los Santos guilty beyond
reasonable doubt as principal for the crime of Murder defined in Article 248
of the Revised Penal Code and, there being no other extenuating
circumstances, the Court hereby imposes on him an indeterminate penalty
of from FOURTEEN (14) YEARS, TEN (10) MONTHS and TWENTY (20)
DAYS of Reclusion Temporal, as Minimum, to TWENTY (20) YEARS
of Reclusion Temporal as Maximum;
4. In "People versus Joselito Tamayo," Criminal Case No. 86-48538 the
Court finds the Accused guilty beyond reasonable doubt as principal, for
the crime of "Murder" defined in Article 248 of the Revised Penal Code and
hereby imposes on him an indeterminate penalty of from FOURTEEN (14)
YEARS, TEN (10) MONTHS and TWENTY (20) DAYS of Reclusion
Temporal, as Minimum, to TWENTY (20) YEARS of Reclusion Temporal,
as Maximum;
5. In "People versus Rolando Fernandez," Criminal Case No. 86-4893l, the
Court finds that the Prosecution failed to prove the guilt of the Accused for
the crime charged beyond reasonable doubt and hereby acquits him of
said charge;
6. In "People versus Oliver Lozano, et al.," Criminal Case No. 86-49007,
the Court finds that the Prosecution failed to prove the guilt of the Accused
beyond reasonable doubt for the crime charged and hereby acquits them
of said charge;
7. In "People versus Annie Ferrer," Criminal Case No. 86-49008, the Court
finds the said Accused guilty beyond reasonable doubt, as accomplice to
the crime of Murder under Article 18 in relation to Article 248 of the
Revised Penal Code and hereby imposes on her an indeterminate penalty
of NINE (9) YEARS and FOUR (4) MONTHS of Prision Mayor, as
Minimum to TWELVE (12) YEARS, FIVE (5) MONTHS and ELEVEN (11)
DAYS of Reclusion Temporal, as Maximum.
The Accused Romeo Sison, Nilo Pacadar, Richard de los Santos, Joel
Tan, Joselito Tamayo and Annie Ferrer are hereby ordered to pay, jointly
and severally, to the heirs of Stephen Salcedo the total amount of
P74,000.00 as actual damages and the amount of P30,000.00 as moral
and exemplary damages, and one-half (1/2) of the costs of suit.
The period during which the Accused Nilo Pacadar, Romeo Sison, Joel
Tan, Richard de los Santos and Joselito Tamayo had been under detention
during the pendency of these cases shall be credited to them provided that
they agreed in writing to abide by and comply strictly with the rules and
regulations of the City Jail.
The Warden of the City Jail of Manila is hereby ordered to release the
Accused Gerry Nery, Raul Billosos and Rolando Fernandez from the City
Jail unless they are being detained for another cause or charge.
The Petition for Bail of the Accused Rolando Fernandez has become moot
and academic. The Petition for Bail of the Accused Joel Tan, Romeo Sison
and Joselito Tamayo is denied for lack of merit.
The bail bonds posted by the Accused Oliver Lozano and Benjamin Nuega
are hereby cancelled. 22
On appeal, the Court of Appeals   on December 28, 1992, modified the
23
decision of the trial court by acquitting Annie Ferrer but increasing the
penalty of the rest of the accused, except for Joselito Tamayo, to reclusion
perpetua. The appellate court found them guilty of murder qualified by
abuse of superior strength, but convicted Joselito Tamayo of homicide
because the information against him did not allege the said qualifying
circumstance. The dispositive portion of the decision reads:
PREMISES CONSIDERED, the decision appealed from is hereby
MODIFIED as follows:
1. Accused-appellants Romeo Sison y Mejia, Nilo Pacadar y Abe, Joel
Tan y Mostero and Richard de los Santos are hereby found GUILTY
beyond reasonable doubt of Murder and are each hereby sentenced to
suffer the penalty of Reclusion Perpetua;
2. Accused-appellant Joselito Tamayo y Oria is hereby found GUILTY
beyond reasonable doubt of the crime of Homicide with the generic
aggravating circumstance of abuse of superior strength and, as a
consequence, an indeterminate penalty of TWELVE (12) YEARS
of prision mayor as Minimum to TWENTY (20) YEARS of reclusion
temporal as Maximum is hereby imposed upon him;
3. Accused-appellant Annie Ferrer is hereby ACQUITTED of being an
accomplice to the crime of Murder.
CONSIDERING that the penalty of Reclusion Perpetua has been
imposed in the instant consolidated cases, the said cases are now
hereby certified to the Honorable Supreme Court for review.  24
Petitioners filed G.R. Nos. 108280-83 under Rule 45 of the Revised Rules
of Court inasmuch as Joselito Tamayo was not sentenced to reclusion
perpetua. G.R. Nos. 114931-33 was certified to us for automatic review of
the decision of the Court of Appeals against the four accused-appellants
sentenced to reclusion perpetua.
Before this court, accused-appellants assign the following errors:
I THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT
NOTED THAT THE ACCUSED FAILED TO CITE ANYTHING ON
RECORD TO SUPPORT THEIR AVERMENT THAT THERE WERE NO
WITNESSES WHO HAVE COME FORWARD TO IDENTIFY THE
PERSONS RESPONSIBLE FOR THE DEATH OF STEPHEN SALCEDO.
II THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
GIVING CREDENCE TO THE UNRELIABLE, DOUBTFUL, SUSPICIOUS
AND INCONCLUSIVE TESTIMONIES OF PROSECUTION WITNESS
RANULFO SUMILANG.
III THE HONORABLE COURT OF APPEALS LIKEWISE ERRED IN
FINDING THE ACCUSED GUILTY WHEN THERE WAS NO EVIDENCE
TO PROVE THAT ANY OF THE ACCUSED CARRIED A HARD AND
BLUNT INSTRUMENT, THE ADMITTED CAUSE OF THE
HEMORRHAGE RESULTING IN THE DEATH OF THE DECEASED.
IV THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
FINDING THAT THERE EXISTS CONSPIRACY AMONG THE
PRINCIPAL ACCUSED.
V THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
FINDING THAT THE CRIME COMMITTED IS MURDER AND NOT
DEATH (HOMICIDE) CAUSED IN A TUMULTUOUS AFFRAY.  25
In their additional brief, appellants contend that:
I THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
REACHING A CONCLUSION OF FACT UTILIZING SPECULATIONS,
SURMISES, NON-SEQUITUR CONCLUSIONS, AND EVEN THE
DISPUTED DECISION OF THE TRIAL COURT, TO UPHOLD THE
VALIDITY OF THE VERY SAME JUDGMENT, ALL CONTRARY TO THE
RULES OF EVIDENCE.
II THE HONORABLE COURT OF APPEALS ERRED IN ADMITTING
EXHIBITS "D", "G", "O", "P", "V", TO "V-48", "W" TO "W-13", ALL OF
WHICH WERE NOT PROPERLY IDENTIFIED.
III THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
CONCLUDING THAT CONSPIRACY EXISTED IN THE CASE AT BAR
DISREGARDING ALTOGETHER THE SETTLED JURISPRUDENCE ON
THE MATTER.
 IV THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
RULING THAT THE CRIME COMMITTED WAS MURDER, NOT DEATH
(HOMICIDE) IN TUMULTUOUS AFFRAY SIDESTEPPING IN THE
PROCESS THE FACTUAL GROUNDS SURROUNDING THE
INCIDENT.  26
Appellants mainly claim that the Court of Appeals erred in sustaining the
testimonies of the two in prosecution eyewitnesses, Ranulfo Sumilang and
Renato Banculo, because they are unreliable, doubtful and do not deserve
any credence. According to them, the testimonies of these two witnesses
are suspect because they surfaced only after a reward was announced by
General Lim. Renato Banculo even submitted three sworn statements to
the police geared at providing a new or improved version of the incident.
On the witness stand, he mistakenly identified a detention prisoner in
another case as accused Rolando Fernandez.   Ranulfo Sumilang was
27
evasive and unresponsive prompting the trial court to reprimand him
several times. 
28
There is no proof that Banculo or Sumilang testified because of the reward
announced by General Lim, much less that both or either of them ever
received such reward from the government. On the contrary, the evidence
shows that Sumilang reported the incident to the police and submitted his
sworn statement immediately two hours after the mauling, even before
announcement of any reward.   He informed the police that he would
29
cooperate with them and identify Salcedo's assailants if he saw them
again. 
30
The fact that Banculo executed three sworn statements does not make
them and his testimony incredible. The sworn statements were made to
identify more suspects who were apprehended during the investigation of
Salcedo's death.  31
The records show that Sumilang was admonished several times by the trial
court on the witness stand for being argumentative and evasive.   This is
32
not enough reason to reject Sumilang's testimony for he did not exhibit this
undesirable conduct all throughout his testimony. On the whole, his
testimony was correctly given credence by the trial court despite his
evasiveness at some instances. Except for compelling reasons, we cannot
disturb the way trial courts calibrate the credence of witnesses considering
their visual view of the demeanor of witnesses when on the witness stand.
As trial courts, they can best appreciate the verbal and non-verbal
dimensions of a witness' testimony.
Banculo's mistake in identifying another person as one of the accused
does not make him an entirely untrustworthy witness.   It does not make
33
his whole testimony a falsity. An honest mistake is not inconsistent with a
truthful testimony. Perfect testimonies cannot be expected from persons
with imperfect senses. In the court's discretion, therefore, the testimony of
a witness can be believed as to some facts but disbelieved with respect to
the others.  34
We sustain the appellate and trial courts' findings that the witnesses'
testimonies corroborate each other on all important and relevant details of
the principal occurrence. Their positive identification of all petitioners jibe
with each other and their narration of the events are supported by the
medical and documentary evidence on record.
Dr. Roberto Garcia, the medico-legal officer of the National Bureau of
Investigation, testified that the victim had various wounds on his body
which could have been inflicted by pressure from more than one hard
object.   The contusions and abrasions found could have been caused by
35
punches, kicks and blows from rough stones.   The fatal injury of
36
intracranial hemorrhage was a result of fractures in Salcedo's skull which
may have been caused by contact with a hard and blunt object such as
fistblows, kicks and a blunt wooden instrument.  37
Appellants do not deny that Salcedo was mauled, kicked and punched.
Sumilang in fact testified that Salcedo was pummeled by his assailants
with stones in their hands. 38
Appellants also contend that although the appellate court correctly
disregarded Exhibits "D," "G," and "P," it erroneously gave evidentiary
weight to Exhibits "O," "V," "V-1" to "V-48," "W," "W-1" to "W-13."   Exhibit
39
"O" is the Joint Affidavit of Pat. Flores and Pat. Bautista, the police
intelligence-operatives who witnessed the rally and subsequent dispersal
operation. Pat. Flores properly identified Exhibit "O" as his sworn
statement and in fact gave testimony corroborating the contents
thereof.   Besides, the Joint Affidavit merely reiterates what the other
40
prosecution witnesses testified to. Identification by Pat. Bautista is a
surplusage. If appellants wanted to impeach the said affidavit, they should
have placed Pat. Flores on the witness stand.
Exhibits "V," "V-1" to "V-48" are photographs taken of the victim as he was
being mauled at the Luneta — starting from a grassy portion to the
pavement at the Rizal Monument and along Roxas Boulevard,   — as he41
was being chased by his assailants   and as he sat pleading with his
42
assailants.   Exhibits "W", "W-1" to "W-13" are photographs of Salcedo and
43
are faithful representations of the mauling incident was affirmed when
the mauling published in local newspapers and magazines such as the appellants Richard de los Santos, Nilo Pacadar and Joel Tan identified
Philippine Star,   Mr. and Ms. Magazine,   Philippine Daily Inquirer,   and
44 45 46
themselves therein and gave reasons for their presence thereat.  58

the Malaya.   The admissibility of these photographs is being questioned

47

by appellants for lack of proper identification by the person or persons who
took the same.
The rule in this jurisdiction is that photographs, when presented in
An analysis of the photographs vis-a-vis the accused's testimonies reveal
that only three of the appellants, namely, Richard de los Santos, Nilo
Pacadar and Joel Tan could be readily seen in various belligerent poses
lunging or hovering behind or over the victim.   Appellant Romeo Sison
59

evidence, must be identified by the photographer as to its production and
testified as to the circumstances under which they were produced.   The 48
value of this kind of evidence lies in its being a correct representation or
appears only once and he, although afflicted with hernia is shown merely
running after the
victim.  Appellant Joselito Tamayo was not identified in any of the pictures.
60

reproduction of the original,   and its admissibility is determined by its

49
The absence of the two appellants in the photographs does not exculpate
accuracy in portraying the scene at the time of the crime.   The
50
them. The photographs did not capture the entire sequence of the killing of
photographer, however, is not the only witness who can identify the Salcedo but only segments thereof. While the pictures did not record Sison
pictures he has taken.   The correctness of the photograph as a faithful
51
and Tamayo hitting Salcedo, they were unequivocally identified by
representation of the object portrayed can be proved prima facie, either by Sumilang and
the testimony of the person who made it or by other competent witnesses, Banculo Appellants' denials and alibis cannot overcome their eyeball
61

after which the court can admit it subject to impeachment as to its identification.
accuracy.   Photographs, therefore, can be identified by the photographer
52

or by any other competent witness who can testify to its exactness and Appellants claim that the lower courts erred in finding the existence of
accuracy. 53
conspiracy among the principal accused and in convicting them of murder
qualified by abuse of superior strength, not death in tumultuous affray.
This court notes that when the prosecution offered the photographs as part
of its evidence, appellants, through counsel Atty. Alfredo Lazaro, Jr. Death in a tumultuous affray is defined in Article 251 of the Revised Penal
objected to their admissibility for lack of proper identification.   However,
54
code as follows:
when the accused presented their evidence, Atty. Winlove Dumayas,
counsel for accused Joselito Tamayo and Gerry Neri used Exhibits "V", "V- Art. 251. Death caused in a tumultuous affray. — When, while several
1" to "V-48" to prove that his clients were not in any of the pictures and persons, not composing groups organized for the common purpose of
therefore could not have participated in the mauling of the victim.   The
55
assaulting and attacking each other reciprocally, quarrel and assault each
photographs were adopted by appellant Joselito Tamayo and accused other in a confused and tumultuous manner, and in the course of the affray
Gerry Neri as part of the defense exhibits. And at this hearing, Atty. someone is killed, and it cannot be ascertained who actually killed the
Dumayas represented all the other accused per understanding with their deceased, but the person or persons who inflicted serious physical injuries
respective counsels, including Atty. Lazaro, who were absent. At can be identified, such person or persons shall be punished by prison
subsequent hearings, the prosecution used the photographs to cross- mayor.
examine all the accused who took the witness stand.   No objection was
56

made by counsel for any of the accused, not until Atty. Lazaro appeared at
If it cannot be determined who inflicted the serious physical injuries on the
the third hearing and interposed a continuing objection to their
deceased, the penalty of prision correccional in its medium and maximum
admissibility.  57

periods shall be imposed upon all those who shall have used violence
upon the person of the victim.
The objection of Atty. Lazaro to the admissibility of the photographs is
anchored on the fact that the person who took the same was not presented
For this article to apply, it must be established that: (1) there be several
to identify them. We rule that the use of these photographs by some of the
persons; (2) that they did not compose groups organized for the common
accused to show their alleged non-participation in the crime is an
purpose of assaulting and attacking each other reciprocally; (3) these
admission of the exactness and accuracy thereof. That the photographs
several persons quarrelled and assaulted one another in a confused and
tumultuous manner; (4) someone was killed in the course of the affray; (5)
it cannot be ascertained who actually killed the deceased; and (6) that the
person or persons who inflicted serious physical injuries or who used
violence can be identified. 62
A tumultuous affray takes place when a quarrel occurs between several
persons and they engage in a confused and tumultuous affray, in the
course of which some person is killed or wounded and the author thereof
cannot be ascertained. 63
The quarrel in the instant case, if it can be called a quarrel, was between
one distinct group and one individual. Confusion may have occurred
because of the police dispersal of the rallyists, but this confusion subsided
eventually after the loyalists fled to Maria Orosa Street. It was only a while
later after said dispersal that one distinct group identified as loyalists
picked on one defenseless individual and attacked him repeatedly, taking
turns in inflicting punches, kicks and blows on him. There was no confusion
and tumultuous quarrel or affray, nor was there a reciprocal aggression at
this stage of the incident. 64
As the lower courts found, the victim's assailants were numerous by as
much as fifty in number  and were armed with stones with which they hit
65
the victim. They took advantage of their superior strength and excessive
force and frustrated any attempt by Salcedo to escape and free himself.
They followed Salcedo from the Chinese Garden to the Rizal Monument
several meters away and hit him mercilessly even when he was already
fallen on the ground. There was a time when Salcedo was able to get up,
prop himself against the pavement and wipe off the blood from his face.
But his attackers continued to pursue him relentlessly. Salcedo could not
defend himself nor could he find means to defend himself. Sumilang tried
to save him from his assailants but they continued beating him, hitting
Sumilang in the process. Salcedo pleaded for mercy but they ignored his
pleas until he finally lost consciousness. The deliberate and prolonged use
of superior strength on a defenseless victim qualifies the killing to murder.
Treachery as a qualifying circumstance cannot be appreciated in the
instant case. There is no proof that the attack on Salcedo was deliberately
and consciously chosen to ensure the assailants' safety from any defense
the victim could have made. True, the attack on Salcedo was sudden and
unexpected but it was apparently because of the fact that he was wearing
a yellow t-shirt or because he allegedly flashed the "Laban" sign against
the rallyists, taunting them into mauling him. As the appellate court well
found, Salcedo had the opportunity to sense the temper of the rallyists and
run away from them but he, unfortunately, was overtaken by them. The
essence of treachery is the sudden and unexpected attack without the
slightest provocation on the part of the person being attacked. 66
The qualifying circumstance of evident premeditation was alleged in the
information against Joselito Tamayo. Evident premeditation cannot be
appreciated in this case because the attack against Salcedo was sudden
and spontaneous, spurred by the raging animosity against the so-called
"Coryistas." It was not preceded by cool thought and reflection.
We find however the existence of a conspiracy among appellants. At the
time they were committing the crime, their actions impliedly showed a unity
of purpose among them, a concerted effort to bring about the death of
Salcedo. Where a conspiracy existed and is proved, a showing as to who
among the conspirators inflicted the fatal wound is not required to sustain a
conviction.   Each of the conspirators is liable for all acts of the others
67
regardless of the intent and character of their participation, because the act
of one is the act of all. 
68
The trial court awarded the heirs of Salcedo P74,000.00 as actual
damages, P30,000.00 as moral and exemplary damages, and one half of
the costs of the suit. At the time he died on July 27, 1986, Salcedo was
twenty three years old and was set to leave on August 4, 1986 for
employment in Saudi Arabia.   The reckless disregard for such a young
69
person's life and the anguish wrought on his widow and three small
children,   warrant an increase in moral damages from P30,000.00 to
70
P100,000.00. The indemnity of P50,000.00 must also be awarded for the
death of the victim.
71
IN VIEW WHEREOF, the decision appealed from is hereby affirmed and
modified as follows:
1. Accused-appellants Romeo Sison, Nilo Pacadar, Joel Tan and Richard
de los Santos are found GUILTY beyond reasonable doubt of Murder
without any aggravating or mitigating circumstance and are each hereby
sentenced to suffer the penalty of reclusion perpetua;
2. Accused-appellant Joselito Tamayo is found GUILTY beyond
reasonable doubt of the crime of Homicide with the generic aggravating
circumstance of abuse of superior strength and, as a consequence, he is
sentenced to an indeterminate penalty of TWELVE (12) YEARS of prision
mayor as minimum to TWENTY (20) YEARS of reclusion temporal as
maximum;
3. All accused-appellants are hereby ordered to pay jointly and severally
the heirs of Stephen Salcedo the following amounts:
(a) P74,000.00 as actual damages;
(b) P100,000.00 as moral damages; and
(c) P50,000.00 as indemnity for the death of the victim.
G.R. No. L-50884 March 30, 1988 him subject to the availability of funds. SO ORDERED.

THE PEOPLE OF THE PHILIPPINES, vs. The accused having been sentenced to suffer the penalty of death, this
FILOMENO SALUFRANIA, defendant-appellant. case is on automatic review before this Court.

PADILLA, J.: At the trial in the court a quo, the prosecution presented the following
witnesses: Dr. Juan L. Dyquiangco Jr., Pedro Salufrania and Narciso
In an information, dated 7 May 1976, Filomeno Salufrania y Aleman was Abuyo.
charged before the Court of First Instance of Camarines Norte, Branch I,
with the complex crime of parricide with intentional abortion, committed as Dr. Juan L. Dyquiangco Jr., who was then Rural Health Officer of Talisay,
follows: Camarines Norte, testified that, after passing the Board Examination, he
was employed as a Resident Physician of La Union Provincial Hospital,
That on or about the 3rd day of December, 1974, in Tigbinan, Labo, then as Junior Resident Physician of Bethane Hospital in San Fernando,
Camarines Norte, Philippines, and within the jurisdiction of the La Union and that later, he joined the government service, starting from
Honorable Court the accused Filomeno Salufrania y Aleman did then 1968 up to the time of the trial; that as a Doctor of Medicine, he had
and there, willfully, unlawfully, and feloniously attack, assault and use performed about ten (10) post mortem examinations; that he was called
personal violence on MARCIANA ABUYO-SALUFRANIA, the lawfully upon by the Municipal Judge of Talisay to examine the corpse of Marciana
wedded wife of the accused, by then and there boxing and stranging Abuyo-Salufrania that was exhumed from its grave in the Municipal
her, causing upon her injuries which resulted in her instantaneous Cemetery of Talisay at around 11:00 o'clock in the morning of 11
death; and by the same criminal act committed on the person of the December 1974; that his post mortem examination lasted from 12:30
wife of the accused, who was at the time 8 months on the family way, o'clock to 2:00 o'clock in the afternoon of the same day. He reduced his
the accused likewise did then and there willfully, unlawfully, and findings of injuries into writing. (Exhibit "A"), which, together with their
feloniously cause the death of the child while still in its maternal womb, probable cause, as testified to by him, are as follows
thereby committing both crimes of PARRICIDE and INTENTIONAL
ABORTION as defined and punished under Art. 246 and Art. 256, INJURY CAUSE
paragraph I, of the Revised Penal Code, to the damage and prejudice 1) Multiple abrasions with "Blunt object or
of the heirs of said woman and child in the amount as the Honorable contusion, left leg, middle part friction by hard
Court shall assess. CONTRARY TO LAW covering an area of about 2 & object"
1/2 by 5 inches.
Upon arraignment, the accused, assisted by counsel de officio, pleaded 2) Abrasions, 1/2 by 2 inches, Friction on a hard
not guilty to the offenses charged. medial side of the cubital fossa object
(back left leg)
After trial the lower court rendered a decision ** dated 9 August 1978, the 3) Multiple pinhead sized Hard pinhead
dispositive part of which states: wounds, right face, starting sized material
from the side of the right eye
WHEREFORE, finding the accused Filomeno Salufrania y Aleman down to mandibular bone(right
guilty beyond reasonable doubt, of the complex crime of Parricide with cheek)
Intentional Abortion, he is hereby sentenced to suffer the penalty of 4) Upper right eyelid more No cause given
DEATH, to indemnify the heirs of the deceased Marciano Abuyo in the prominent than the left eyelid
sum of P12,000.00 and to pay the costs. "For unselfish, valuable and ("the right upper eyelid a little
exemplary service rendered by counsel de oficio, Atty. Marciano C. bit bulging than the left eye
Dating, Jr., a compensation of P500.00 is hereby recommended for "and" sort of "swollen")
 5) Tongue protruding bet ween Usually, the main
the lips, about 1inch teeth line cause of
6) Deceased is pregnant with a protruding tongue
baby boy about 7-8 months old during death is
(by) strangulation
Dr. Dyquiangco testified that after conducting the post
mortem examination, he issued a certification thereof (Exhibit "A"); that he
issued a death certificate (Exhibit "B") for the deceased Marciano Abuyo-
Salufrania, bearing the date of 5 December 1974, made on the basis of the
information relayed by a certain Leonila Loma to his nurse before the
burial, without mentioning the cause of death; that the cause of death, as
cardiac arrest, was indicated on said death certificate only after the post
mortem examination on 11 December 1974.
The other witness for the prosecution was Pedro Salufrania, son of herein
appellant and of the deceased. The lower court's decision states that, by
reason of interest and relationship, before Pedro Salufrania was allowed to
testify against his father-accused Filomeno Salufrania, he was carefully
examined by the prosecuting officer and the defense counsel under the
careful supervision of the court a quo, to determine whether, at his age of
13 years old, he was already capable of receiving correct impressions of
facts and of relating them truly and, also, whether he was compelled and/or
threatened by anybody to testify against his father-accused.  1
The lower court found Pedro Salufrania to be determined and intelligent.
He convincingly declared that he was not threatened by any of his uncles
on his mother's side to testify against his father, because it was true that
the latter killed his mother. Then, formally testifying as the prosecution's
lone eyewitness, he stated that his father Filomeno Salufrania and his
mother Marciana Abuyo quarrelled at about 6:00 o'clock in the evening of 3
December 1974, in their small house at a far away sitio in barrio Tigbinan,
Labo, Camarines Norte; that during said quarrel, he saw his father box his
pregnant mother on the stomach and, once fallen on the floor, his father
strangled her to death; that he saw blood ooze from the eyes and nose of
his mother and that she died right on the spot where she fell.
Pedro Salufrania further testified that after killing his mother, the accused-
appellant went out of the house to get a hammock; that his brother Alex
and he were the only ones who witnessed how the accused killed their
mother because his sister and other brothers were already asleep when
the horrible incident happened; that his brothers Celedonio, Danilo and
sister Merly woke up after the death of their mother and kept watch at their
mothers body while their father was away; that their father arrived early the
next morning with the hammock and after placing their dead mother on the
hammock, the accused carried her on his shoulder and brought the
cadaver to the house of his sister Conching, located at a populated section
of Tigbinan that from Tigbinan the corpse was transferred to Gabon,
Talisay, Camarines Norte for burial.
Continuing his testimony, Pedro Salufrania stated that he is now living with
his uncle Eduardo Abuyo and had refused and still refused to live with his
father-accused, because the latter has threatened to kill him and his other
brothers and sister should he reveal the true cause of his mother's death.
The third witness for the prosecution was Narciso Abuyo, a resident of
Gabon, Talisay, Camarines Norte. He testified that the accused Filomeno
Salufrania and his sister, the deceased Marciana Abuyo, were lawfully
wedded husband and wife as evidenced by a marriage contract (Exhibit
"C"). He declared that his sister was more or less seven (7) months
pregnant when she died; that he first came to know about his sister's death
on 4 December 1974 thru his nephews Pedro and Alex Salufrania who first
informed him that their mother died of stomach ailment and headache; that
he went to Tigbinan to request for the body of his sister so that it may be
buried in Talisay, Camarines Norte and, as intended, Marciana Abuyo was
buried in the Talisay Cemetery on 6 December 1974.
Narciso Abuyo also declared that after the burial of Marciana Abuyo, the
three (3) children of his deceased sister went to his house and refused to
go home with their father Filomeno Salufrania; that when asked for the
reason why, his nephew Alex Salufraña told him that the real cause of
death of their mother was not stomach ailment and headache, rather, she
was boxed on the stomach and strangled to death by their father; that
immediately after learning of the true cause of death of his sister, he
brought the matter to the attention of the police authorities of Talisay,
Camarines Norte, who investigated Alex and Pedro Salufirania and later, to
that of the Office of the Provincial Fiscal of Camarines Norte.
The defense had for witnesses Geronimo Villan, Juanito Bragais, Angeles
Liling Balce and the accused Filomeno Salufrania.
Geronimo Villan testified that he was a neighbor of Filomeno Sulfrania. He
declared that Marciana Abuyo died at around 6:00 o'clock in the morning of
4 December 1974 in her house at Sitio Kapagisahan Tigbinan Labo,
Camarines Norte; that he happened to pass by said house because his
attention was attracted by the bright light in the fireplace and he saw
Filomeno Salufrania boiling "ikmo" and garlic as medicine for his wife who
was about to deliver a child; that he helped the accused by applying "ikmo"
to the different parts of the body of Marciana Abuyo and by administering
the native treatment known as "bantil", that is, by pinching and pulling the
skin with two fingers of his closed fist; that when the condition of Marciana
Abuyo worsened, he told Filomeno Salufrania to go and get Juanita
Bragais who is known as a healer but the latter arrived at about 7:00
o'clock in the morning of 4 December 1974 and that at that time Marciana
Abuyo was already dead.
Witness Juanita Bragais testified that he was fetched by Felipe Salufrania,
another son of Filomeno Salufrania at about 6:00 o'clock in the morning of
4 December 1974. He further testified that when he reached the house of
the Salufranias, Marciana Abuyo was already dead so he just helped
Filomeno Salufrania in transferring the body of his wife to the house of the
latter's brother-in-law at Tigbinan, Labo, Camarines Norte.
Angeles Liling Balce, who claimed to be a former resident of Kapagisahan
Tigbinan, Labo, Camarines Norte testified that she arrived in the house of
Filomeno Salufrania at about 6:00 o'clock in the morning of 4 December
1974 after being called by one of the latter's sons; that she saw Marciana
still in a coma lying on the lap of her husband who informed her that
Marciana was suffering from an old stomach ailment.
The accused Filomeno Salufrania admitted that he was that lawful
husband of the deceased Marciana Abuyo; that at around 9:00 o'clock in
the morning of 3 December 1974, Marciana arrived home from Talisay
where she had earlier stayed for about a week; that she was hungry upon
her arrival, so he allegedly cooked their food and after eating their lunch,
he proceeded to his work while his wife rested in their house; that when he
returned home at 3:00 o'clock in the afternoon of that same day, his wife
complained to him of stomach pain and he was told to prepare the
beddings because she was already sleepy; that at about 4:00 o'clock in the
morning of 4 December 1974, he was awakened by his wife who was still
complaining of stomach pain, and that she asked for a drink of hot water;
that while he was boiling water, Geronimo Villan arrived and assisted him
in administering to his wife the native treatments known as "hilot" or
massaging and "banti" that Geronimo Villan and Francisco Repuya
alternately applied "bantil" to his wife but when her condition worsened, he
woke up his children, Pedro and Alex to fetch Rico Villanueva who might
be able to ,save the life of their mother; that his children left and returned
without Rico Villanueva but the latter arrived a little later.
Accused-appellant then went on to say that he sent for Juanito Bragais but
the latter was not able to cure his wife, since the latter was already dead
when he arrived; that after the death of his wife, he ordered his children to
get the hammock of Kaloy Belardo whose house was about two (2)
kilometers away from their house, and upon the arrival of the hammock, he
placed the body of his wife thereon and brought it to the house of his sister
Consolacion Salufrania in Tigbinan; that while the corpse of Marciana
Abuyo was at Tigbinan he sent Chiding and his elder son to inform the
brothers and sisters of his wife at Talisay about her death and that Leonila
Abuyo and Salvador Abuyo came; that he informed the Barangay Captain
of Tigbinan of the cause of death of his wife; that upon the suggestion of
the brothers and sisters of Marciana Abuyo, especially Salvador Abuyo,
the body of their sister was brought home to Talisay and thereafter buried
at the Talisay Cemetery; that there was no quarrel between him and his
wife that preceded the latter's death, and that during the lifetime of the
deceased, they loved each other; that after her burial, his son Pedro
Salufrania was taken by his brother-in-law Narciso Abuyo and since then,
he was not able to talk to his son until during the trial; and that at the time
of death of his wife, aside from the members of his family, Geronimo Villan
Francisco Repuya and Liling Angeles Balce were also present.
The case was considered submitted for decision by the trial court on 18
July 1978. As aforestated, the trial court found the appellant guilty of the
crimes charged and sentenced him to the penalty of death.
The appellant assigns the following errors allegedly committed by the trial
court:
I THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED ON THE
BASIS OF THE TESTIMONY OF AN INCOMPETENT WITNESS, AND ON
INCONSISTENT AND INSUFFICIENT EVIDENCE OF THE
PROSECUTION, THEREBY VIOLATING THE RULE THAT THE
ACCUSED IS ENTITLED TO AN ACQUITTAL UNLESS HIS GUILT IS
SHOWN BEYOND ANY REASONABLE DOUBT.
II ASSUMING ARGUENDO THAT THE EVIDENCE FOR THE
PROSECUTION IS CREDIBLE AND SUFFICIENT, THE TRIAL COURT
ERRED IN CONVICTING THE ACCUSED OF THE COMPLEX CRIME OF
PARRICIDE WITH INTENTIONAL ABORTION.
III THE TRIAL COURT ERRED IN DISCREDITING THE EVIDENCE FOR
THE ACCUSED.
Appellant alleges that the trial court failed to determine the competence of
Pedro Salufrania before he was allowed to testify. Since Pedro was
allegedly a child of tender age, being only thirteen (13) years old when he
testified, and only eleven (11) years old when the offense charged
occurred, he is presumed incompetent under Rule 130 Sec. 19 (b) of the
Revised Rules of Court, which includes among those who cannot be
witnesses:
Children who appear to the court to be of such tender age and inferior
capacity as to be incapable of receiving correct impressions of the
facts respecting which they are examined, or of relating them truly.
Therefore, according to appellant, for failure of the trial court to determine
Pedro's competence, the presumption of incompetency was not rebutted
and Pedro's testimony should not have been admitted. Moreover, appellant
stresses that there is no basis for the trial court's finding that Pedro is
intelligent.
Appellant's contention is without merit. The record shows that the trial court
determined Pedro Salufrania's competency before he was allowed to
testify under oath.   The trial court's conclusion that Pedro was intelligent
2
and competent is fully supported by Pedro's responsiveness to the
questions propounded to him when he was already under oath:
A. Did you go here in court to testify voluntarily?
Q. Yes, Your Honor.
A. Were you not forced by your uncle to testify in his case?
Q. No, I was not forced by my uncle. xxx xxx xxx
A. The accused is your father?
Q. Yes, sir.
A. Do you love him?
Q. No, sir.
A. Your father is accused now of crime which carries the penalty of
death, are you still willing to testify against him? xxx xxx xxx
Q. Why did you say that you don't love your father
A. Because he killed my mother.
Q. And that is the reason why you hate your father now?
A. Yes, sir. (tsn., pp. 3, 7,17, Nov. 12, 1976).
Pedro's strong sense of moral duty to tell the truth, even though it should
lead to his father's conviction, shows that he fully appreciated the meaning
of an oath, which likewise proves that he was no longer a child of tender
years at the time of his testimony.
Appellant also alleges that, since Pedro changed his answer
from no to yes when he was asked whether he was threatened by his
uncle to testify against his father, shows that Pedro was lying and proves
that he did not appreciate the meaning of an oath at all. 3
Again, this contention is without merit, Pedro became confused when the
trial court ordered that the original question be reformed. Pedro's confusion
is apparent from the fact that when asked the third time, he affirmed his
first answer,
Q. Isn't it that your uncle threatened you with bodily harm if you will not
give statement before the police?
A. No, sir. xxx xxx xxx
Q. But later you actually went with your uncle to the police because
you were threatened by him with bodily harm if you will not follow him?
A. Yes, sir.
Q. Is it true that your uncle threatened you with bodily harm if you will
not give statement to the police?
A. No, sir. (tsn., pp. 6, 7, Nov. 12, 1976)
Appellant next lists the following alleged inconsistencies to discredit the
testimony of Pedro. First, Pedro testified on direct examination that his
mother died in the evening of December 3. while on cross-examination he
said that she died in the morning of December 4. It must be noted that he
affirmed twice during cross-examination that his mother died on December
3, just as he had testified during direct examination. Significantly, he did
not mention December 4 as the date when she died, as appellant would
make it appear. Pedro merely answered 'yes' to the question "And isn't it
that your mother died in the early morning on that day (December 4) and
not on the evening of December 3?"   Thus, Pedro's answer could have
4
resulted only from a misapprehension of the a question, and for no other
reason.
Second, appellant alleges that Pedro testified on direct examination that he
saw appellant leave the house to get a hammock after strangling the victim
and then came back the following morning. However, upon cross-
examination, Pedro testified that appellant left at noon or in the afternoon
of December 4. Moreover, Pedro allegedly testified on re-direct that he saw
appellant sleep beside the dead body of his mother. Again Pedro
misapprehended the question propounded to him. Ajudicious reading of
the transcript will bear this out:
Q. When did your father leave to get the hammock?
 A. In the afternoon.
Q. That may be when the body was brought to Talisay. When your
father, rather, when you said that your father left to get a hammock so
that your mother may be brought to Tigbinan what time was that?
A. About 12:00 o'clock noon.
One may discern that the court itself noticed that there was a
missapprehension when it commented "that maybe when the body was
brought to Talisay" after Pedro answered "In the afternoon". When Pedro
answered "about 12:00 noon' he must have been referring to the time
when appellant carried his dead wife to Tigbinan. It must be noted that the
question was so worded that it could have misled Pedro to think that what
was being asked was the time when appellant brought his dead wife to
Tigbinan. In fact, there is nothing inconsistent with Pedro's testimony that
he saw his father leave in the evening of December 3 and again saw him
asleep and thus not noticed appellant's coming back after securing a
hammock and sleeping beside the deceased. Pedro was therefore telling
the truth when he said that, upon waking up, he saw his father sleeping
beside his dead mother. By then, appellant had already returned with the
hammock.
Third, Pedro allegedly testified on direct examination that the corpse was
carried to Tigbinan in the morning of December 4, while on cross-
examination, he said it was in the evening.   It must be pointed out that
5
Pedro merely answered "yes" to a question purportedly mentioning the
time when the victim's body was transferred to Tigbinan. The question is
as follows: "The corpse of your mother was brought to the Tigbinan proper
when the vigil was had in the evening of December 4, is that right?" It is to
be noted that the question's thrust is whether or not the victim's body was
brought to Tigbinan. The time it was brought was merely incidental. Thus,
Pedro may not have paid attention to the part of the question involving
time. Moreover, the phrase "in the evening" may have referred either to the
time of transport of the body or to the vigil, which could have definitely
confused Pedro.
Fourth, Pedro allegedly testified on direct examination that he, together
with his brothers and sister, kept vigil beside their mother's dead body that
night, while on cross-examination, he testified that they just kept lying
down and pretended to sleep.   There is nothing inconsistent here. The
6
children could have kept vigil while lying down with their deceased mother.
Appellant further cites other alleged improbabilities to discredit Pedro's
testimony. Appellant contends that it was improbable for Pedro to have
seen the attack on his mother since he testified that the room was dimly
lighted, and that, while the attach was going on, he closed his eyes
pretending to sleep.   This contention is without merit. Even though the
7
room was dimly lighted, Pedro was only two (2) meters away from his
parents; thus, he could easily see, as he saw, the attack on his
mother.   Also, although he pretended to be asleep, it was unlikely that he
8
kept his eyes closed all the while, as he was aware that a fight was going
on. Rather, it was to be expected that he had his eyes open and, thus, he
saw the heinous crime unfold and ultimately consumated.
Appellant alleges that he does not believe that it was fear of him that
caused the delay in Pedro's divulging the real cause of his mother's death
until 10 December 1974. According to appellant, such fear could no longer
have influenced Pedro from December 6, the date he started to live
separately from him. This contention is untenable. Even though Pedro
started to live separately from his father from December 6, it cannot be
said that the influence of appellant's threat suddenly ceased from that time.
It must be noted that Pedro was young and was still very much under
appellant's influence and control. The thought and memory of his father's
viciousness were still too fresh even after three days from his mother's
death. The fear that he too could be killed by appellant in like manner must
have deterred him from divulging the truth earlier.
Appellant also alleges that it was improbable for Pedro to have just
watched the killing of his mother. This contention is untenable. At that
moment, when his mother was being assaulted and strangled, Pedro must
have been so shocked as to be rendered immobile and powerless to do
anything. This is a normal reaction in such a situation. Besides, it is a fact
of life that different people react differently to the same types of
situations.   One cannot overlook that there is no standard form of
9
behaviour when one is confronted by a shocking occurrence. 10
Appellant next alleges that since the prosecution has failed without
satisfactory explanation to present Pedro's brother Alex who is alleged to
be also an eyewitness to the killing of the victim, it is presumed that Alex's
testimony would be adverse to the prosecution if presented. This
contention is without merit. First, Alex, who is younger than Pedro by 3
years, may not have been competent to testify due to his tender age.
Second, even assuming that he was competent to testify, his testimony
could be merely corroborative. Corroboration is not necessary in this case
because the details of the crime have already been testified to by Pedro
with sufficient clarity. The failure to present all the eyewitnesses to an act
does not necessarily give rise to an unfavorable presumption, especially
when the testimony of the witness sought to be presented is merely
corroborative.   Witnesses are to be weighed, not numbered, and it is a
11
well established rule that the testimony of a single witness, even if
uncorroborated, but positive and credible, is sufficient to support a
conviction.   In any event, it is not for the appellant to say how many
12
witnesses the prosecution should have presented.  13
The inconsistencies magnified by appellant in the testimony of Pedro
Salufrania have been satisfactorily explained. In fact, some of them are not
material since they neither touch upon the manner of death of the victim
nor question the identity of the killer, both of which were unwaveringly
testified upon by Pedro. Thus, with the alleged inconsistencies and
improbabilities explained away, Pedro's testimony remains unperturbed.
Even if there were discrepancies, such discrepancies were minor and may
be considered as earmarks of verisimilitude. 14
The trial court's assessment of Pedro's testimony, as quoted hereunder,
deserves more than passing consideration:
... The testimony of eye-witness Pedro Salufrania, 13-year old son of
the victim Marciana Abuyo and her killer-spouse Filomeno Salufrania,
appears to be very clear, convincing and truthful. It is vivid as to the
details of the horrible occurence that took place at about 6:00 o'clock in
the evening of December 3, 1974 in their small house at a far away
sitio of Tigbinan, Labo, Camarines Norte, resulting in the untimely and
cruel death of her (sic) mother. He and his brother Alex were the only
eyewitnesses to the gory crime committed by their father. The
credibility of this witness (Pedro Salufrania) and his testimony was
invested when, despite rigid cross-examination, the veracity of his
testimony in chief was not impeached. He remained firm and on the
verge of crying, when he pointed an accusing finger at his father during
the trial. He was unshaken notwithstanding a long and detailed cross-
examination. And, there is reason to bestow complete credence to his
testimony because he had the opportunity to closely observe how his
father had deliberately and cruelly ended the life of his mother. Despite
his tender age and apparent childish innocence, this Court believes
that he can clearly perceive and perceiving, make known his
perception, precluding the possibility of coaching or tutoring by
someone. His declaration as to when, where and how the horrible
incident complained of happened is the believable version. 15
Appellant questions the competence of Dr. Dyquiangco as an expert
witness, since this is the first time that the doctor conducted an autopsy on
a cadaver which had been buried for about a week. It must be noted,
however, that although this was the doctor's first autopsy under
circumstances present in this case, he had, however, conducted
similar post-mortem examinations on ten (10) other occasions. This would
constitute sufficient experience. Significantly, appellant did not object to the
doctor's expression of medical opinions during the trial. Being an expert in
his field, the doctor is presumed to have taken all pertinent factors into
consideration with regard to the autopsy, including embalming and the
state of the cadaver's decomposition. Dr. Juan Dyquiangco Jr., was a
disinterested witness in the case, and a reputable public official in whose
favor the presumption of regularity in the performance of official duties
must be applied.
Appellant further alleges that the findings of Dr. Dyquiangco and the
testimony of Pedro Salufrania do not tally. Suffice it to say that the Court
finds no inconsistencies between the findings of Dr. Dyquiangco and Pedro
Salufrania's testimony. Both are consistent on material points. Thus, the
Court sees no reason to disturb the conclusions reached by the trial court
insofar as their credibility and the appellant's guilt are concerned.
Appellant's third assignment of error alleges that the trial court erred in
discrediting his evidence simply because the testimonies of the defense
witnesses were consistent on material points. Moreover, there is no
showing, according to the appellant, that said testimonies were rehearsed
so as to dovetail with each other.
This contention is without merit. The Court notes, first of all, that appellant
did not even bother to discuss his defense in order to refute the massive
evidence against him. This is tantamount to an admission that he could not
adequately support his version of Marciana Abuyo's death. The trial court's
reasons for rejecting the defense version, as hereunder quoted, are
tenable and sound. Thus —
On the contrary, the testimonies of defense witnesses Geronimo Villan,
Angeles Liling Balce and the accused Filomeno Salufrania suspiciously
dove-tailed in every detail as to when, where and how .Marciana
Abuyo died at 6:00 o'clock in the morning of 4 December 1974, in their
house at sitio Kapagisahan Tigbinan Labo, Carnarines Norte, of
stomach pain. On these points, these witnesses and the accused
made statements which seemed to be very fresh and clear in their
minds, despite the lapse of four long years. Their exact and uniform
declarations on these points, their phenomenal recollections, without
sufficient special or uncommon reason to recall, rendered their
testimonies unconvincing. If at all, their testimonies appeared to this
Court to be an eleventh hour concoction. And, as defense witnesses,
after observing them and their declarations on the witness stand, they
appeared to the Court to be untruthful and unreliable. For, despite the
 synchronization of time when, the place where and how the incidence
happened, their testimonies on other material points revealed their
tendency to exaggerate and their propensity to falsehood, thus-Aside
from the accused Filomeno Salufrania, there are three other witnesses
for the defense Geronimo Villan Angeles Liling Balce and Juanita
Bragais. There is nothing in the testimony of Juanito Bragais because
he did not witness how and when Marciana Abuyo died. Francisco
Repuya, who was also alleged by Filomeno Salufrania to be present
when Marciana Abuyo died, did not testify. Accused Filomeno
Salufrania never claimed that he summoned for Angeles Liling Balce.
According to him Angeles Liling Balce was not present during the
moment of death of Marciana Abuyo, for she was fetched by him only
after the death of his wife. Logically, therefore, there is no basis for the
presentation of Angeles Liling Balce that she was present during the
moment of death of Marciana Abuyo. She was merely play-acting.
Geronimo Villan who claimed he passed-by the house of Filomeno
Salufrania and saw the latter boiling water with "ikmo" and garlic, as
medicine for his wife Marciana Abuyo, who was about to give birth was
discredited by accused himself who declared he was merely boiling
water for the hot drink of his wife, who was suferring from her old
stomach ailment. In like manner, witness Geronimo Villan discredited
the accused Filomeno Salufrania, about the presence of Francisco
Repuya, who allegedly alternated with Geronimo Villan in applying the
native treatments of 'hilot' and 'bantil' to Marciana Abuyo, when
throughout his testimony he (Geronimo Villan) never mentioned the
presence of Francisco Repuya.
After closely observing defense witnesses Geronimo Villan and
Angeles Liling Balce, this Court is convinced that their testimonies and
accounts of the incident are fabricated, untruthful and not worth of
credence. Certainly, they were not present immediately before and
during the moment of death of Marciana Abuyo. ...
Added to these, there is one scandalous circumstance, which to the
mind of this Court, betrays the guilty conscience of the accused. If
there was nothing revealing in the face of the deceased Marciana
Abuyo, why was her face covered by a piece of cloth by the
accused. ...
Trial judges are in the best position to ascertain the truth and detect
falsehoods in the testimony of witnesses. This Court will normally not
disturb the findings of the trial court on the credibility of witnesses, in view
of its advantage in observing first hand their demeanor in giving their
testimony.  Such rule applies in the present case.
16
Lastly, appellant alleges that, assuming he indeed killed his wife, there is
no evidence to show that he had the intention to cause an abortion. In this
contention, appellant is correct. He should not be held guilty of the complex
crime of Parricide with Intentional Abortion but of the complex crime of
Parricide with Unintentional Abortion. The elements of Unintentional
Abortion are as follows:
1. That there is a pregnant woman.
2. That violence is used upon such pregnant woman without intending
an abortion.
3. That the violence is intentionally exerted.
4. That as a result of the violence the foetus dies, either in the womb or
after having been expelled therefrom.  17
The Solicitor General's brief makes it appear that appellant intended to
cause an abortion because he boxed his pregnant wife on the stomach
which caused her to fall and then strangled her. We find that appellant's
intent to cause an abortion has not been sufficiently established. Mere
boxing on the stomach, taken together with the immediate strangling of the
victim in a fight, is not sufficient proof to show an intent to cause an
abortion. In fact, appellant must have merely intended to kill the victim but
not necessarily to cause an abortion.
The evidence on record, therefore, establishes beyond reasonable doubt
that accused Filomeno Salufrania committed and should be held liable for
the complex crime of parricide with unintentional abortion. The abortion, in
this case, was caused by the same violence that caused the death of
Marciana Abuyo, such violence being voluntarily exerted by the herein
accused upon his victim.
It has also been clearly established (a) that Marciana Abuyo was seven (7)
to eight (8) months pregnant when she was killed; (b) that violence was
voluntarily exerted upon her by her husband accused; and (c) that, as a
result of said violence, Marciana Abuyo died together with the foetus in her
womb. In this afternoon, Article 48 of the Revised Penal Code states that
the accused should be punished with the penalty corresponding to the
more serious came of parricide, to be imposed in its maximum period
which is death. However, by reason of the 1987 Constitution which has
abolished the death penalty, appellant should be sentenced to suffer the
penalty of reclusion perpetua.
WHEREFORE, as modified, the judgment appealed from is AFFIRMED.
Accused-appellant is hereby sentenced to suffer the penalty of reclusion
perpetua. The indemnity of P12,000. 00 awarded to the heirs of the
deceased Marciana Abuyo is increased to P30,000.00 in line with the
recent decisions of the Court. With costs against the appellant.