v. Ah Chong 15 Phil.
488 o    voluntary act is a free, intelligent, and intentional act
G.R. No. L-5272  March 19, 1910
CARSON, J.
Lesson: mistake of fact, definition of felony
Laws: Article 1 RPC, Art 3 RPC
FACTS:
•    August 14, 1908 About 10 pm: Ah Chong, a cook was suddenly awakened by
some trying to force open the door of the room. He sat up in bed and called out
twice, "Who is there?" He heard no answer and was convinced by the noise at the
door that it was being pushed open by someone bent upon forcing his way into the
room.  The defendant, fearing that the intruder was a robber or a thief, leaped to
his feet and called out. "If you enter the room, I will kill you." At that moment he
was struck just above the knee by the edge of the chair (thought to be an unlawful
aggression) which had been placed against the door.  Seizing a common kitchen
knife which he kept under his pillow, the defendant struck out wildly at the intruder
who, it afterwards turned out, was his roommate, Pascual who is a house boy or
muchacho who in the spirit of mischief was playing a trick on him
•    Seeing that Pascual was wounded, he called to his employers and ran back to his
room to secure bandages to bind up Pascual's wounds.
•    There had been several robberies not long prior to the date of the incident, one
of which took place in a house where he was employed as cook so he kept a knife
under his pillow for his personal protection.
•    trial court held it as simple homicide
ISSUE: W/N defendant can be held criminally responsible who, by reason of a
mistake as to the facts, does an act for which he would be exempt from criminal
liability if the facts were as he supposed them to be, but which would constitute the
crime of homicide or assassination if the actor had known the true state of the facts
at the time when he committed the act.
HELD:  trial court should be reversed, and the defendant acquitted of the crime
NO.
•    GR: acts constituting the crime or offense must be committed with malice or
with criminal intent in order that the actor may be held criminally liable
EX: it appears that he is exempted from liability under one or other of the express
provisions of article 8 of the code
•    Article 1 RPC of the Penal Code is as follows:
Crimes or misdemeanors are voluntary acts and ommissions punished by law.
o    A person voluntarily committing a crime or misdemeanor shall incur criminal
liability, even though the wrongful act committed be different from that which he
had intended to commit.
o    "malice" signifying the intent
o    Actus non facit reum nisi mens sit rea - "the act itself does not make man guilty
unless his intention were so
o    “ Actus me incito factus non est meus actus” - an act done by me against my will
is not my act
•    GR: courts have recognized the power of the legislature to forbid, in a limited
class of cases, the doing of certain acts, and to make their commission criminal
WITHOUT regard to the intent of the doer
•    EX: intention of the lawmaker to make the commission of certain acts criminal
without regard to the intent of the doer is clear and beyond question the statute
will not be so construed
•    ignorantia facti excusat applies only when the mistake is committed without
fault or carelessness
•    defendant at the time, he acted in good faith, without malice, or criminal intent,
in the belief that he was doing no more than exercising his legitimate right of self-
defense; that had the facts been as he believed them to be he would have been
wholly exempt from criminal liability on account of his act; and that he can not be
said to have been guilty of negligence or recklessness or even carelessness in falling
into his mistake as to the facts, or in the means adopted by him to defend himself
from the imminent danger which he believe threatened his person and his property
and the property under his charge.
v. Oanis, 74 Phil. 257
G.R. No.L-47722  July 27, 1943
MORAN, J.
Lesson applicable: mitigating circumstances
FACTS:
  Captain Godofredo Monsod, Constabulary Provincial Inspector at Cabanatuan,
Nueva Ecija, received from Major Guido a telegram of the following tenor:
"Information received escaped convict Anselmo Balagtas with bailarina and Irene in
Cabanatuan get him dead or alive." Captain Monsod accordingly called for his first
sergeant and asked that he be given four men.
  The same instruction was given to the chief of police Oanis who was likewise
called by the Provincial Inspector.
  Defendants Oanis and Galanta then went to the room of Irene, and an seeing a
man sleeping with his back towards the door where they were, simultaneously or
successively fired at him with their .32 and .45 caliber revolvers. Awakened by the
gunshots, Irene saw her paramour already wounded, and looking at the door where
the shots came, she saw the defendants still firing at him. Shocked by the entire
scene. Irene fainted; it turned out later that the person shot and killed was not the
notorious criminal Anselmo Balagtas but a peaceful and innocent citizen named
Serapio Tecson, Irene's paramour.
  According to Appellant Galanta, when he and chief of police Oanis arrived at the
house, the latter asked Brigida where Irene's room was. Brigida indicated the place,
and upon further inquiry as to the whereabouts of Anselmo Balagtas, she said that
he too was sleeping in the same room.
ISSUE: W/N they may, upon such fact, be held responsible for the death thus caused
to Tecson
HELD:  appellants are hereby declared guilty of murder with the mitigating
circumstance
YES.
  ignorantia facti excusat, but this applies only when the mistake is committed
without fault or carelessness
  appellants found no circumstances whatsoever which would press them to
immediate action. The person in the room being then asleep, appellants had ample
time and opportunity to ascertain his identity without hazard to themselves, and
could even effect a bloodless arrest if any reasonable effort to that end had been
made, as the victim was unarmed.
  "No unnecessary or unreasonable force shall be used in making an arrest, and the
person arrested shall not be subject to any greater restraint than is necessary for his
detention."
  a peace officer cannot claim exemption from criminal liability if he uses
unnecessary force or violence in making an arrest
  The crime committed by appellants is not merely criminal negligence, the killing
being intentional and not accidental. In criminal negligence, the injury caused to
another should be unintentional, it being simply the incident of another act
performed without malice.
  2 requisites in order that the circumstance may be taken as a justifying one:
1. offender acted in the performance of a duty or in the lawful exercise of a
right-present
2. injury or offense committed be the necessary consequence of the due
performance of such duty or the lawful exercise of such right or office.-not
present
  According to article 69 of the Revised Penal Code, the penalty lower by 1 or 2
degrees than that prescribed by law shall, in such case, be imposed.
Subject: Criminal Law 1- Impossible Crimes
Ponente: Justice Diosdado M. Peralta
Doctrine: The requisites of an impossible crime are: (1) that the act performed
would be an offense against persons or property; (2) that the act was done with
evil intent; and (3) that its accomplishment was inherently impossible, or the
means employed was either inadequate or ineffectual
FACTS: Petitioner Jacinto was an employee of Megafoam International, received a
check amounting to Pho 10, 000 as payment of Baby Aquino to her purchase to
Megafoam. However, instead of delivering it to Megafoam, she deposited it to her
account. The check was later discovered to be unfunded. Both RTC and CA ruled
that the petitioner was guilty of qualified theft. Petitioner filed a petition for review
of certiorari to SC.
 
ISSUE: WON petitioner is correctly convicted for the crime of Qualified Theft.
 
RULING: NO. Petitioner is guilty of committing an impossible crime of theft only. ,
The requisites of an impossible crime are: (1) that the act performed would be an
offense against persons or property; (2) that the act was done with evil intent; and
(3) that its accomplishment was inherently impossible, or the means employed was
either inadequate or ineffectual.
Petitioner’s evil intent cannot be denied, as the mere act of unlawfully taking the
check meant for Mega Foam showed her intent to gain or be unjustly
enriched. Were it not for the fact that the check bounced, she would have received
the face value thereof, which was not rightfully hers. Therefore, it was only due to
the extraneous circumstance of the check being unfunded, a fact unknown to
petitioner at the time, that prevented the crime from being produced. The thing
unlawfully taken by petitioner turned out to be absolutely worthless, because the
check was eventually dishonored, and Mega Foam had received the cash to replace
the value of said dishonored check.
Petition granted. Decision is MODIFIED. Petitioner Gemma T. Jacinto is
found GUILTY of an IMPOSSIBLE CRIME and is sentenced to suffer the penalty of six
(6) months of arrresto mayor, and to pay the costs.
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. RAFAEL BALMORES Y
CAYA, Defendant-Appellant.
Felixberto B. Viray, for Appellant.
Assistant Solicitor General Ruperto Kapunan, Jr. and Solicitor Adolfo Brillantes,
for Appellee.
SYLLABUS
1. CRIMINAL LAW; FALSIFICATION OF SWEEPSTAKES TICKET; EVIDENCE; JUDICIAL
NOTICE. — The court cannot take judicial notice of what is not of common
knowledge as the number of units of sweepstakes ticket.
2. ID.; ID.; SUBSTITUTION OF NUMBER IN INK. — The removal of the true and real
unidentified number of sweepstakes ticket and substitution and writing in ink
thereon of the number of a winning ticket and the attempt to cash the ticket so
altered as a prize-winning number constitute the crime of falsification of
government obligation.
3. ID.; COURTS; JURISDICTION; ACCUSED’S ILLITERACY AND WAIVER OF RIGHT OF
COUNSEL; PLEA OF GUILTY. — The fact that an accused is illiterate does not deprive
the trial court of jurisdiction to convict him on a plea of guilty although he is not
assisted by counsel, when it appears that the accused has waived such right.
DECISION
OZAETA, J.:
Appellant, waiving the right to be assisted by counsel, pleaded guilty to the
following information filed against him in the Court of First Instance of
Manila:jgc:chanrobles.com.ph
"The undersigned accuses Rafael Balmores y Caya of attempted estafa through
falsification of a security committed as follows.
"That on or about the 22nd day of September, 1947, in the City of Manila,
Philippines, the said accused did then and there wilfully unlawfully and feloniously
commence the commission of the crime of estafa through falsification of a security
directly by overt acts, to wit: by then and there tearing off at the bottom in a cross-
wise direction a portion of a genuine 1/8 unit Philippine Charity Sweepstakes ticket
thereby removing the true and real unidentified number of same and substituting
and writing in ink at the bottom on the left side of said ticket the figure or number
074000 thus making the said ticket bear the said number 074000, which is a prize-
winning number in the Philippine Charity Sweepstakes draw last June 29 1947, and
presenting the said ticket so falsified on said date, September 22, 1947, in the
Philippine Charity Sweepstakes Office for the purpose of exchanging the same for
the corresponding cash that said number had won, fraudulently pretending in said
office that the said 1/8 unit of a Philippine Charity Sweepstakes ticket is genuine
and that he is entitled to the corresponding amount of 1’359.55 so won by said
ticket in the Philippine Charity Sweepstakes draw on said date, June 29, 1947, but
the said accused failed t perform all the acts of execution which would have
produced the crime of estafa through falsification of a security as a consequence by
reason of some causes other than his spontaneous desistance, to wit: one Bayani
Miller, an employee to whom the said accused presented said ticket in the
Philippine Charity Sweepstakes Office discovered that the said ticket as presented
by the said accused was falsified and immediately thereafter he called for a
policeman who apprehended and arrested the said accused right then and there.
‘Contrary to law.
(Sgd.) "LORENZO RELOVA
"Assistant City Fiscal"
and was sentenced by Judge Emilio Pefia to suffer not less than 10 years and 1 day
of prision mayor and not more than 12 years and 1 day of reclusion temporal, and
to pay a fine of P100 and the costs.
From that sentence he appealed to this court, contending (1) that the facts charged
in the information did not constitute an offense and (2) that the trial court lacked
Jurisdiction to convict him on a plea of guilty because, being illiterate, he was not
assisted by counsel.
In support of the first contention, counsel for the appellant argues that there could
be no genuine 1/8 unit Philippine Charity Sweepstakes ticket for the June 29, 1947,
draw; that this court has judicial notice that the Philippine Charity Sweepstakes
Office issued only four 1/4 units for each ticket for the said draw of June 29, 1947;
that the information does not show that the true and real unidentified number of
the ticket alleged to have been torn was not and could not be 074000; that the
substitution and writing in ink of the said number 074000 was not falsification
where the true and real number of the ticket so torn was 074000.
This contention is based on assumptions not borne out by the record. The ticket
alleged to have been falsified is before us and it appears to be a l/8 unit. We cannot
take judicial notice of what is not of common knowledge. If relevant, it should have
been proved. But if it is true that the Philippine Charity Sweepstakes Office did not
issue 1/8 but only l/4 units of tickets for the June 29, 1947, draw, that would only
strengthen the theory of the prosecution that the l/8 unit of a ticket which
appellant presented to the Philippine Charity Sweepstakes Office was spurious. The
assumption that the true and real unidentified number of the ticket alleged to have
been torn was the winning number 074000, is likewise not supported by the record.
The information to which appellant pleaded guilty alleged that the appellant
removed the true and real unidentified number of the ticket and substituted and
wrote in ink at the bottom on the left side of said ticket the figure or number
074000. It is obvious that there would have been no need of removal and
substitution if the original number on the ticket was the same as that which
appellant wrote in ink in lieu thereof.
The second contention appears to be based on a correct premise but wrong
conclusion. The fact that appellant was illiterate did not deprive the trial court of
jurisdiction to convict him on a plea of guilty although he was not assisted by
counsel. The decision expressly states that appellant waived the right to be assisted
by counsel, and we know of no law against such waiver.
It may be that appellant was either reckless or foolish in believing that a falsification
as patent as that which he admitted to have perpetrated would succeed; but the
recklessness and clumsiness of the falsification did not make the crime impossible
within the purview of paragraph 2, article 4, in relation to article 59, of the Revised
Penal Code. Examples of an impossible crime, which formerly was not punishable
but is now so under article 59 of the Revised Penal Code, are the following: (1)
When one tries to kill another by putting in his soup a substance which he believes
to be arsenic when in fact it is common salt; and (2) when one tries to murder a
corpse. (Guevara, Commentaries on the Revised Penal Code, 4th ed page 15;
decision, Supreme Court of Spain, November 26 1879; 21 Jur. Crim., 343.) Judging
from the appearance of the falsified ticket in question, we are not prepared to say
that it would have been impossible for the appellant to consummate the crime of
estafa thru falsification of said ticket if the clerk to whom it was presented for
payment had not exercised due care
The penalty imposed by article 166 for the forging or falsification of "treasury or
bank notes or certificates or other obligations and securities" is reclusion temporal
in its minimum period and a fine not to exceed P10,000, if the document which has
been falsified, counterfeited, or altered is an obligation or security of the United
States or of the Philippine Islands. This being a complex crime of attempted estafa
through falsification of an obligation or security of the Philippines, the penalty
should be imposed in its maximum period in accordance with article 48. Taking into
consideration the mitigating circumstance of lack of instruction, and applying the
Indeterminate Sentence Law, the minimum cannot be lower than prision mayor in
its maximum period, which is 10 years and 1 day to 12 years. It results, therefore,
that the penalty imposed by the trial court is correct.
The alteration, or even destruction, of a losing sweepstakes ticket could cause no
harm to anyone and would not constitute a crime were it not for the attempt to
cash the ticket so altered as a prize-winning number. So in the ultimate analysis
appellant’s real offense was the attempt commit estafa (punishable with eleven
days of arresto menor); but technically and legally he has to suffer for the serious
crime of falsification of a government obligation. We realize that the penalty is too
severe, considering all the circumstances of the case, but we have no discretion to
impose a lower penalty than that authorized by law. The exercise of clemency is
vested by the Constitution in the Chief Executive and not in this court.
We are constrained to affirm the sentence appealed from, with costs against
the Appellant.
Moran, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes and Torres, JJ.,
concur.
SULPICIO INTOD vs. CA (G.R. No. 103119 October 21, 1992)
SEPTEMBER 9, 2016 / RUSSELL JAY
Subject: Criminal Law 1- Impossible Crime (Legal vs. Factual Impossibility)
Ponente: Justice Jose C. Campos Jr.
Doctrine:  Factual impossibility occurs when extraneous circumstances unknown
to the actor or beyond his control prevent the consummation of the intended
crime.
FACTS: Some time in February of 1979, the petitioner, together with three other
armed men, went to Salvador Mandaya’s house and fired gunshots at his bedroom.
Unknown to them, Mandaya was not in his bedroom, and the house was occupied
by his son-in-law and his family.
RTC convicted Intod of attempted. Petioner raised the case to CA but the same
affirmed the decision. Petitioner now contends that he is only responsible for an
impossible crime under par. 2, art. 4 of RPC.
ISSUE: WON is guilty of impossible crime only.
RULING: YES. Legal impossibility would apply to those circumstances where (1) the
motive, desire and expectation is to perform an act in violation of the law; (2) there
is intention to perform the physical act; (3) there is a performance of the intended
physical act; and (4) the consequence resulting from the intended act does not
amount to a crime.
On the other hand, factual impossibility occurs when extraneous circumstances
unknown to the actor or beyond his control prevent the consummation of the
intended crime. The case at bar belongs to this category. Petitioner shoots the place
where he thought his victim would be, although in reality, the victim was not
present in said place and thus, the petitioner failed to accomplish his end.
The community suffers from the mere alarm of crime. Again: Where the thing
intended (attempted) as a crime and what is done is a sort to create alarm, in other
words, excite apprehension that the evil; intention will be carried out, the incipient
act which the law of attempt takes cognizance of is in reason committed.
Further, factual impossibility of the commission of the crime is not a defense. If the
crime could have been committed had the circumstances been as the defendant
believed them to be, it is no defense that in reality the crime was impossible of
commission.
Petition GRANTED, respondent Court of Appeals holding Petitioner guilty of
Attempted Murder is hereby MODIFIED. Petitioner guilty of an impossible crime and
is hereby sentenced to suffer the penalty of six (6) months of arresto mayor,
together with the accessory penalties provided by the law, and to pay the costs.
FACTS:
Petitioner and Jovy Calderon were sighted outside the Super Sale Club, a
supermarket within the ShoeMart (SM) complex along North EDSA, by Lorenzo Lago
(Lago), a security guard who was then manning his post at the open parking area of
the supermarket.  Lago saw petitioner, who was wearing an identification card with
the mark Receiving Dispatching Unit (RDU), hauling a pushcart with cases of
detergent of the well-known Tide brand. Petitioner unloaded these cases in an open
parking space, where Calderon was waiting. Petitioner then returned inside the
supermarket, and after five (5) minutes, emerged with more cartons of Tide
Ultramatic and again unloaded these boxes to the same area in the open parking
space. When Lago asked petitioner for a receipt of the merchandise, petitioner and
Calderon reacted by fleeing on foot, but Lago fired a warning shot to alert his fellow
security guards of the incident. Petitioner and Calderon were apprehended at the
scene, and the stolen merchandise recovered. Before the Court of Appeals,
petitioner argued that he should only be convicted of frustrated theft since at the
time he was apprehended, he was never placed in a position to freely dispose of the
articles stolen.
ISSUE:
Is the crime committed frustrated or consummated theft?
HELD:
The crime is consummated. The following elements of theft as provided for in
Article 308 of the Revised Penal Code, namely: (1) that there be taking of personal
property; (2) that said property belongs to another; (3) that the taking be done with
intent to gain; (4) that the taking be done without the consent of the owner; and (5)
that the taking be accomplished without the use of violence against or intimidation
of persons or force upon things. There was no need of an intent to permanently
deprive the owner of his property to constitute an unlawful taking.
So long as the descriptive circumstances that qualify the taking are present,
including animo lucrandi and apoderamiento, the completion of the operative act
that is the taking of personal property of another establishes, at least, that the
transgression went beyond the attempted stage. Insofar as we consider the present
question, unlawful taking is most material in this respect. Unlawful taking, which is
the deprivation of one’s personal property, is the element which produces the
felony in its consummated stage. At the same time, without unlawful taking as an
act of execution, the offense could only be attempted theft, if at all. With these
considerations, we can only conclude that under Article 308 of the Revised Penal
Code, theft cannot have a frustrated stage. Theft can only be attempted or
consummated.
ARISTOTEL VALENZUELA y NATIVIDAD, petitioner, 
vs.
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS
NACHURA, respondents.
G. R. No. 160188              June 21, 2007
FACTS:
 On 19 May 1994, at around 4:30 p.m., petitioner and Calderon were
sighted outside the Super Sale Club, a supermarket within the ShoeMart
(SM) complex along North EDSA, by Lorenzo Lago (Lago), a security guard
who was then manning his post at the open parking area of the
supermarket. Lago saw petitioner, who was wearing an identification card
with the mark "Receiving Dispatching Unit (RDU)," hauling a push cart with
cases of detergent of the well-known "Tide" brand. Petitioner unloaded
these cases in an open parking space, where Calderon was waiting.
Petitioner then returned inside the supermarket, and after five (5) minutes,
emerged with more cartons of Tide Ultramatic and again unloaded these
boxes to the same area in the open parking space.
 Thereafter, petitioner left the parking area and haled a taxi. He boarded
the cab and directed it towards the parking space where Calderon was
waiting. Calderon loaded the cartons of Tide Ultramatic inside the taxi,
then boarded the vehicle. All these acts were eyed by Lago, who
proceeded to stop the taxi as it was leaving the open parking area. When
Lago asked petitioner for a receipt of the merchandise, petitioner and
Calderon reacted by fleeing on foot, but Lago fired a warning shot to alert
his fellow security guards of the incident. Petitioner and Calderon were
apprehended at the scene, and the stolen merchandise recovered. The
filched items seized from the duo were four (4) cases of Tide Ultramatic,
one (1) case of Ultra 25 grams, and three (3) additional cases of detergent,
the goods with an aggregate value of P12,090.00.
 In a Decision promulgated on 1 February 2000, the Regional Trial Court
(RTC) of Quezon City, Branch 90, convicted both petitioner and Calderon of
the crime of consummated theft. They were sentenced to an
indeterminate prison term of two (2) years of prision correccional as
minimum to seven (7) years of prision mayor as maximum.
 Valenzuela appealed before the Court of Appeals, arguing that he should
only be convicted of frustrated theft since he was not able to freely dispose
of the articles stolen.
 Decision dated 19 June 2003,the Court of Appeals rejected this contention
and affirmed petitioner’s conviction, thus the Petition for Review was filed
before the Supreme Court.
ISSUE: Whether or not the crime committed has a frustrated stage.
HELD: NO.
 The petition was DENIED.
 Article 6 of the Revised Penal Code provides that a felony is consummated
when all the elements necessary for its execution and accomplishment are
present.
 Article 308 states that, in the crime of theft, the following elements should
be present: (1) that there be taking of personal property; (2) that said
property belongs to another; (3) that the taking be done with intent to
gain; (4) that the taking be done without the consent of the owner; and (5)
that the taking be accomplished without the use of violence against or
intimidation of persons or force upon things.
 The Court held that theft is produced when there is deprivation of personal
property by one with intent to gain. Thus, it is immaterial that the offender
 is able or unable to freely dispose the property stolen since he has already
committed all the acts of execution and the deprivation from the owner
has already ensued from such acts. Therefore, theft cannot have a
frustrated stage, and can only be attempted or consummated.
 PEOPLE VS. JUGUETA
 went to the house of Norberto together, each with his own firearm. It is,
 PEOPLE VS. JUGUETA
 particularly fired from appellant's firearm that killed the children.
 2016
 
 FACTS:
 Ireneo Jugueta y Flores (appellant) was accused, together with Gilbert
Estores and Roger San Miguel, of using firearms to shoot on the house
occupied by the family of Norberto Divina. Two of the children of
Norberto, namely, Mary Grace (13 years old) and Claudine (3 1/2 years
old), died from gunshot wounds. Norberto Divina, his wife Maricel Divina
and children Elizabeth and Judy Ann Divina, both minors, were not hit.
 Appellant Jugueta was charged with the Double Murder of Mary Grace
Divina and Claudine Divina, both minors. The crime was alleged to have
been committed with treachery, evident premeditation, in the dwelling of
the offended party, and the accused taking advantage of nighttime to
facilitate the commission of the offense. He was also charged, together
with Gilbert Estores and Roger San Miguel, with Multiple Attempted
Murder, for the shooting attack on the other family members of Norberto
Divina, who fortunately, were not hit.

 ISSUE:
 1.      Whether appellant and other accused are co-conspirators.

 2.      Whether complex crime under Article 48 of RPC exists in this case.

 3.      Whether the aggravating circumstance of dwelling must be
appreciated.

 RULING:
 1.      Yes. Appellant and the two other malefactors are equally responsible
for the death of Norberto's daughters because they clearly conspired to kill
Norberto's family. Conspiracy exists when two or more persons come to an
agreement regarding the commission of a crime and decide to commit it.
Proof of a prior meeting between the perpetrators to discuss the
commission of the crime is not necessary as long as their concerted acts
reveal a common design and unity of purpose. In such case, the act of one
is the act of all. Here, the three men undoubtedly acted in concert as they
therefore, no longer necessary to identify and prove that it is the bullet

2.      A different rule governs where separate and distinct acts result in a
number killed. Deeply rooted is the doctrine that when various victims
expire from separate shot, such acts constitute separate and distinct
crimes.
 Appellant and the two others, in firing successive and indiscriminate shots
at the family of Norberto from their respective firearms, intended to kill
not only Norberto, but his entire family. When several gunmen, as in this
case, indiscriminately fire a series of shots at a group of people, it shows
their intention to kill several individuals. Hence, they are committing not
only one crime. What appellant and his cohorts committed cannot be
classified as a complex crime because as held in People v. Nelmida, " each
act by each gunman pulling the trigger of their respective firearms, aiming
each particular moment at different persons constitute distinct and
individual acts which cannot give rise to a complex crime.”

 3.      Yes. The Court notes that both the trial court and the CA failed to take
into account dwelling as an ordinary, aggravating circumstance, despite
the fact that the Informations contain sufficient allegations to that effect.
 It has been held that dwelling is aggravating because of the sanctity of
privacy which the law accords to human abode. He who goes to another's
house to hurt him or do him wrong is more guilty than he who offends him
elsewhere." Dwelling aggravates a felony where the crime is committed in
the dwelling of the offended party provided that the latter has not given
provocation therefor. The testimony of Norberto established the fact that
the group of appellant violated the victims' home by destroying the same
and attacking his entire family therein, without provocation on the part of
the latter. Hence, the trial court should have appreciated dwelling as an
ordinary aggravating circumstance.

  Art. 8. Conspiracy and proposal to commit felony –
 Conspiracy and proposal to commit felony are punishable only in the cases
in which the law specially provides a penalty therefor.

 A conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it.
JOEL YONGCO v. PEOPLE, GR No. 209373, 2014-07-30
Facts:
The prosecution presented as one of its witnesses a casual employee of the city
government, Pablo Salosod, who testified that on April 16, 2005 at around 1:30
a.m., while attending a wake at the Cosmopolitan Funeral Parlor, he was fetched
and requested by petitioner Tangian to... accompany him to the CEO. At the office
garage, Salosod and his fellow garbage collectors were allegedly directed by
petitioners Tangian and Yongco to load car parts that petitioners considered as
waste items, the subject items of the theft, on the truck driven by Tangian. They...
then drove to Tominobo, Iligan City where the materials were unloaded in front of
Delfin Junk Store, and before the truck left the shop, Salosod allegedly saw
petitioner Lañojan giving a thumbs-up sign to Tangian. On the way back, Tangian
allegedly confessed to Salosod that it... was Lañojan who requested that the items
be brought at the junk shop. Another employee, Rommel Ocaonilla, corroborated
the testimony of Salosod.
Prosecution witness Oliveros Garcia meanwhile testified witnessing the unloading
of the items in front of the junk store, after which, Lañojan covered the items up
with a sack. The following morning, he allegedly saw Lañojan's brother-in-law, who
coincidentally works at the... shop, take the items inside.
Witnesses Dioscoro Galorio and Atty. Ulysses Lagcao, employee and consultant of
the city government, respectively, testified that they conducted investigations
relative to the incident and found out that the items stolen consisted of one Nissan
transmission, one unit boom, one
Nissan I-beam, and one differential of Tamaraw, with total valuation of PhP 12,000.  property custodian should first be secured before taking out items... from the CEO
Upon their investigation, they recommended to the city legal officer the filing of the
present criminal case against the three petitioners.
Issues:
whether or not the CA erred in sustaining petitioners' conviction. Central to
resolving this issue is determining whether or not there indeed existed conspiracy
between petitioners in committing the offense... charged.
Ruling:
There is no dispute that the items (transmission, boom arm, differential assembly,
and I-beam) which are the subject matter of this case belong to the CEO of Iligan
City. There is no dispute that these items, although considered "heap of scrap,"
have not yet been... declared unserviceable or waste by the proper authority or
office. Nor have they been marked for proper disposal. Unless properly disposed in
accordance with Section 379 of the Local Government Code, these items are still
government properties or owned by the City of
Iligan.
There is also no dispute that these items were taken away from the CEO and were
already under complete and effective control of the persons taking the same. This is
because these items were loaded onto the garbage truck driven by Tangian and
brought to Tominobo at the Delfin
Junk Store.
Apparently, the taking of these items was without the consent of the CEO of Iligan
City because there was no gate pass issued to that effect. Evidence shows that
when the garbage truck left the premises of the CEO, no gate pass was surrendered
by Tangian. Yongco did not bother... to ask for a gate pass on the pretext that there
was another guard on duty at the gate.
Addressing the issue head on, We uphold the findings of the appellate court. No
error can be ascribed to the CA when it determined the existence of conspiracy
between and among petitioners in this case.
In the case at bar, even though there is no showing of a prior agreement among the
accused, their separate acts taken and viewed together are actually connected and
complemented each other indicating a unity of criminal design and purpose.[10
Tangian's complicity in the illicit deed was manifest from the fact, as he himself
admitted, that he was the one who personally transported the stolen items from
the CEO to the junkshop. His claim that he was not aware of any irregularity in the
act he performed is rendered... dubious by his 16 years of service as truck driver for
the City of Iligan. To be sure, his record of service argues against his claim of
ignorance of the standard protocol that a gate pass to be issued by the CEO
compound, including alleged waste materials. He should also know better than to
assume that Lañojan can authorize the withdrawal of items without the requisite
gate pass since Lañojan's duty, as security guard, is precisely to prevent the same.
Similarly, Yongco's claim of good faith is belied by his own admission that he knew
of the office procedure that a gate pass is required every time something is taken
out of the CEO premises. In fact, four gate passes were given to him that morning
by Lañojan, covering waste... materials withdrawn during the latter's shift. At the
very least, this should have reminded him of his duty to demand a gate pass for
property leaving the CEO premises. Neither memory lapses or lapses in the
performance of his duty will explain Yongco's failure to demand a gate... pass. The
only viable explanation is that he was in connivance with other petitioners.[
The character and effect of conspiracy are not to be adjudged by dismembering it
and viewing its separate parts but only by... looking at it as a whole acts done to
give effect to conspiracy may be, in fact, wholly innocent acts.[14] Applying this
doctrine in the case at bench, it can reasonably be concluded that despite Lañojan's
lack of physical participation in hauling the items... to Tangian's truck and bringing
them to the junk shop, he can still be liable for Qualified Theft via conspiracy. All
told, there is no cogent reason for us to disturb the findings of the appellate court,
affirmatory of those of the trial court.
PEOPLE OF THE PHILIPPINES vs. ZENAIDO FABRO
G.R. No. 208441, July 17, 2017  People vs. Jesalva (2017)
TIJAM, J.:
Facts: In an Information, appellant was charged with Serious Illegal Detention under
Article 267 of the RPC, in relation to Republic Act No. 7610, alleging that  accused,
ZENAIDA FABRO feloniously and by force take AAA 9 years old, minor, while the
latter is in front of the school whom the said accused detained and kept in the
house of Brgy. Capt. Fabro, brother of the accused for a period of four days under
restraint and against her will.
Denying the charge, appellant claimed that she brought AAA to Nueva Ecija with the
consent of AAA's mother and teacher. She explained that she had intended to bring
AAA along to the Barangay Captain to prove that her husband had taken her
luggage and some documents, given that AAA used to clean their room. The
Barangay Captain was not around so they proceeded to Nueva Ecija after AAA
requested to join her. After two days in Nueva Ecija, she brought AAA to her
brother's house where she was arrested.
Issue: Whether appellant is liable for Kidnapping and Serious Illegal Detention.
Ruling: Yes. The elements of Kidnapping and Serious Illegal Detention under Article
267 of the Revised Penal Code, as amended, are: (1) the offender is a private
individual; (2) he kidnaps or detains another or in any other manner deprives the
latter of his liberty; (3) the act of detention or kidnapping must be illegal; and (4) in
this case, the person kidnapped or detained is a minor, female, or a public officer. If
the victim of kidnapping and serious illegal detention is a minor, the duration of his
detention is immaterial.
There is no dispute that accused-appellant is a private individual and that she took
AAA from her school on March 2, 2006, brought her to Nueva Ecija and kept her
there until she was arrested on March 5, 2006. Leaving a child in a place from which
he did not know the way home, even if he had the freedom to roam around the
place of detention, would still amount to deprivation of liberty. Under such a
situation, the child's freedom remains at the mercy and control of the abductor.
Ratio Decidendi: The curtailment of the victim's liberty need not involve any
physical restraint upon the victim's person.15 For kidnapping to exist, it is not
necessary that the offender kept the victim in an enclosure or treated him harshly.
Gist: This is an appeal from the Decision of  the CA, affirming in toto the Decision of
the RTC, which found accused-appellant Zenaida Fabro guilty of Serious Illegal
Detention.
PEOPLE OF THE PHILIPPINES vs. ROBERTO ESPERANZA JESALVA
G.R. No. 227306, June 19, 2017 
JARDELEZA, J.:
 Facts: An Information was filed charging accused-appellant, Ryan Menieva and
Junie Ilaw  alleging that accused, conspiring together, feloniously with intent to kill
with evident premeditation, treachery and taking advantage of superior strength,
attack, assault and employ personal violence upon the person of Amel Ortigosa, by
then and there stabbing him with a sharp bladed instrument hitting him on the
chest, causing his untimely death.
Accused-appellant denied any participation in Ortigosa's stabbing. He claimed that
on the night of the incident, he was waiting for his sister on the corner of Dupax
Street. While waiting, he saw and heard people running and shouting which caused
him to leave the place.
RTC and CA held that appellant is liable for murder as he conspired with the other
accused.
Issue: Whether or not appellant is guilty of murder.
Ruling: No. To determine if accused-appellant conspired with Menieva and Ilaw, the
focus of the inquiry should necessarily be the overt acts of accusedappellant before,
during and after the stabbing incident.
In this case, no evidence showing that appellant was purposely waiting for Ortigosa
at the time and place of the incident and that Menieva and Ilaw were on standby,
awaiting for accused-appellant's signal. Surely, appellant could not have anticipated
that on September 16, 2007, at around 1:00 a.m., Ortigosa and his group would
pass by and go to the store to buy cigarettes. Appellant's act of pointing to the
victim and his group is not an overt act which shows that accused-appellant acted in
concert with his coaccused to cause the death of Ortigosa. Mere knowledge,
acquiescence or approval of the act, without the cooperation and the agreement to
cooperate, is not enough to establish conspiracy.
Ratio Decidendi: The presentation of proof beyond reasonable doubt before any
person may be convicted of any crime and deprived of his life, liberty, or even
property. The hypothesis of his guilt must flow naturally from the facts proved and
must be consistent with all of them.
Gist: This appeal seeks to reverse and set aside the CA’s Decision, which upheld the
Decision of the RTC, which found appellant Roberto Esperanza Jesalva guilty beyond
reasonable doubt of the crime of murder.
People vs. Martin Simon G.R. No. 93028 July 29, 1994 Sale of Prohibited Drugs
NOVEMBER 28, 2017
FACTS:
Accused Martin Simon was charged with a violation of Section 4, Article II of
Republic Act No. 6425 or the Dangerous Drugs Act of 1972. He sold tea bags of
marijuana to a Narcotics Command (NARCOM) poseur-buyer. The confiscated 4 tea
bags, weighing a total of 3.8 grams, when subjected to laboratory examination,
were found positive for marijuana.
Simon denied the accusation against him, claiming that on the day of question, he
was picked up by the police at their house while watching TV. He was told that he
was a pusher so he attempted to alight from the jeep but he was handcuffed
instead. When they finally reached the camp, he was ordered to sign some papers
and, when he refused, he was boxed in the stomach eight or nine times by Sgt.
Pejoro. He was then compelled to affix his signature and fingerprints on the
documents presented to him. He denied knowledge of the marked money or the 4
teabags of dried marijuana leaves, and insisted that the marked money came from
the pocket of Pejoro. Moreover, the reason why he vomited blood was because of
the blows he suffered at the hands of Pejoro.
Dr. Evelyn Gomez-Aguas, a resident physician of Romana Pangan District Hospital,
declared that she treated appellant for three days due to abdominal pain, but her
examination revealed that the cause for this ailment was appellant’s peptic ulcer.
She did not see any sign of slight or serious external injury, abrasion or contusion on
his body.
Simon was sentenced to suffer the penalty of life imprisonment, to pay a fine of
twenty thousand pesos and to pay the costs.
Simon then seek the reversal of the judgement
ISSUE:
Was the conviction of Simon correct?
RULING:
To sustain a conviction for selling prohibited drugs, the sale must be clearly and
unmistakably established. To sell means to give, whether for money or any other
material consideration. It must, therefore, be established beyond doubt that
appellant actually sold and delivered two tea bags of marijuana dried leaves to Sgt.
Lopez, who acted as the poseur-buyer, in exchange for two twenty-peso bills.
After careful review, the Court held that there were 2 tea bags of marijuana that
was sold and there were 2 other tea bags of marijuana confiscated. Thus, Simon
should be charged of selling for the 2 tea bags of marijuana only.
However, there is an overlapping error in the provisions on the penalty of reclusion
perpetua by reason of its dual imposition, that is, as the maximum of the penalty
where the marijuana is less than 750 grams, and also as the minimum of the
penalty where the marijuana involved is 750 grams or more. The same error has
been committed with respect to the other prohibited and regulated drugs provided
in said Section 20. To harmonize such conflicting provisions in order to give effect to
the whole law, the court hereby hold that the penalty to be imposed where the
quantity of the drugs involved is less than the quantities stated in the first
paragraph shall range from  prision correccional to reclusion temporal, and
not reclusion perpetua. This is also concordant with the fundamental rule in criminal
law that all doubts should be construed in a manner favorable to the accused.
The court held that Republic Act No. 6425, as now amended by Republic Act No.
7659, has unqualifiedly adopted the penalties under the Revised Penal Code in their
technical terms, hence with their technical signification and effects. In fact, for
purposes of determining the maximum  of said sentence, the court have applied the
provisions of the amended Section 20 of said law to arrive at  prision
correccional and Article 64 of the Code to impose the same in the medium period.
Such offense, although provided for in a special law, is now in effect punished by
and under the Revised Penal Code. Correlatively, to determine the minimum, the
court applied first part of the aforesaid Section 1 which directs that “in imposing a
prison sentence for an offense punished by the Revised Penal Code, or its
amendments, the court shall sentence the accused to an indeterminate sentence
the maximum term of which shall be that which, in view of the attending
circumstances, could be properly imposed  under the rules of said Code, and
the minimum which shall be within the range of the  penalty next lower to that
prescribed by the Code for the offense.”
Thus, in the case at bar, appellant should be begrudged the benefit of a minimum
sentence within the range of arresto mayor, the penalty next lower to  prision
correccional which is the maximum range have fixed through the application of
Articles 61 and 71 of the Revised Penal Code. For, with fealty to the law, the court
may set the minimum sentence at 6 months of arresto mayor, instead of 6 months
and 1 day of prision correccional.
[G.R. No. 14170. November 23, 1918. ]
THE UNITED STATES, Plaintiff-Appellee, v. CATALINO MERCED and APOLONIA
PATRON, Defendants-Appellants.
Leopoldo Rovira, for Appellants.
Attorney-General Paredes, for Appellee.
SYLLABUS
1. HOMICIDE; SUFFICIENCY OF PROOF. — When, during the act of violently killing a
person, no disinterested witness was present and the record discloses proof that
there was a struggle between the assaulted and the person assaulted, as a. result of
which and in consequence of a serious or mortal wound the latter lay stretched out
and dead on the floor a few moments or a few hours after such struggle took place,
it may safely be held, in default of proof to the contrary, that only the crime of
homicide was committed, unless there was attendant some qualifying circumstance
determinative of a more serious classification and penalty.
2. ID.; WIFE SURPRISED IN ADULTERY; NATURAL, RIGHT OF OFFENDED HUSBAND;
RISK ASSUMED BY PARAMOUR. — Although it were true that Pantaleon Arabe, the
deceased, upon his appearance in the house in which he surprised his wife and her
codefendant immediately assaulted the latter with a dagger, which certainly was
not proven, such an assault, had it been made, could not, on account of its being
both natural and lawful, justify the punishable act committed by the defendant
Merced during the struggle that ensued, between him and the deceased, for the
reason that, even if the deceased had killed his wife and her codefendant, he would
but have exercised a lawful right, for the defendant Merced well knew that by
maintaining illicit relations with a married woman he was committing an unlawful
act of a criminal nature and was exposing himself to the vengeance of the offended
husband, and when the two defendants met in a dwelling room of a house near
that in which the offended husband lived, they well knew that they were running
the danger of sometime being surprised as it so occurred.
3. ID.; ID.; ADULTEROUS WIFE AS AN ACCOMPLICE; INSUFFICIENCY OF EVIDENCE. —
The circumstance of the unfaithful wife having been present during the struggle
engaged in between her husband and her paramour, and there being no positive
evidence that this woman furnished the latter with the dagger, Exhibit B, in order
that with it he might assault her own husband, there are lacking sufficient grounds
upon which to establish proof that the wife participated or cooperated as an
accomplice in the execution of the crime at the time her husband was assaulted by
her codefendant.
DECISION
TORRES, J.  :
Before the Court of First Instance of Oriental Negros the defendants Catalino
Merced and Apolonia Patron were charged by the provincial fiscal with the crime of
homicide, and after the trial of this cause judgment was rendered on April 29th of
the present year whereby Catalino Merced was sentenced to fourteen years, eight
months and one day of reclusion temporal, with allowance of one-half of the time
of preventive imprisonment suffered, to the accessory penalties, and to pay, jointly
and severally with the other defendant, an indemnity of P1,000 to the heirs of the
deceased, and also one-half of the costs; and Apolonia Patron, to eight years and
one day of prision mayor, to the accessory penalties, to pay the heirs of Pantaleon
Arabe, jointly and severally with the other defendant, the same amount of
indemnity fixed for the latter, and to the payment of the other one-half of the costs.
From this judgment defendants’ counsel appealed.
On the night of March 4th of the present year, Catalino Merced went to the house
of Teodora Sarasin, situated in the barrio of Palimpinon of the town of Luzuriaga,
and, at the invitation of the mistress of the house, sat down to supper with her; a
short while afterwards Apolonia Patron also arrived, and, fetching some morisqueta
or cooked rice from her house nearby, likewise sat down to supper with the two
other persons above-mentioned. After supper Merced and Patron successively went
down from the house, and the former, upon his return to it and with the permission
of its owner, went into the main room thereof to rest. Apolonia Patron, who
returned to the house a short while afterwards, did likewise, and they both met in
said room to lie down to sleep there. Thereupon, the mistress of the house,
Teodora Sarasin, went to bed with her children, and while asleep was awakened by
the noise caused by a struggle waged in the aforementioned room. Just at that
moment Sarasin heard Apolonia say to her (the latter’s) husband that she
(Apolonia) was wounded, and heard the husband reply to her, saying: "That is what
you got." On account of these happenings, and out of fear, the owner of the house
left it, passing through the kitchen, and on her return a few moments afterwards to
get her children, she found Pantaleon Arabe, the husband of Apolonia Patron,
stretched out on the mat on which she had been sleeping; he was bloody and was
pressing in his stomach. This witness now found the light which had previously been
put out lit inside the house. When, several hours afterwards, the justice of the
peace proceeded with the investigation of the crime, he found Arabe’s body on the
river bank, near the house of the deceased. Such was the testimony of Teodora
Sarasin.
Upon the examination of Filomena Ago, the defendant Merced’s sister-in-law, she
testified as follows: On the morning of March 2, 1918, two days prior to the crime,
Apolonia Patron went to witness’ house and complained that her husband
Pantaleon Arabe had quarreled with her because he suspected that she was
maintaining relation with Catalino Merced, her brother-in-law. Witness Filomena
replied to her, saying that, in order to avoid such quarreling, she ought not to have
any dealings with Merced. This advice angered the defendant Patron and, at about
4 o’clock in the afternoon of that same day, she again went to Ago’s house; she had
a dagger (Exhibit B) in her hand and showed a disposition to quarrel with witness.
Several days afterwards witness found this same dagger on the floor of Patron’s
house, near the bed on which the defendant Merced lay down on the night of the
4th of March of this year when he returned to the said house in which he was living
as a brother of witness’ husband. When Merced was questioned as to where he had
been wounded, he replied that it was in the house of Teodora Sarasin, and then
witness learned of the occurrence, for it was told to her while Sarasin was in
witness’ store. Ago had seen the dagger, Exhibit B, bathed in blood, and it was the
same one that Apolonia Patron was carrying two days before when she became
angry in witness’ house.
The health officer who examined Pantaleon Arabe’s corpse testified that, as he had
stated in his certificate Exhibit A, the corpse bore a serious wound between two ribs
of the left side; that this wound ran obliquely from the left part of the shoulder
toward the right diaphragm and had been inflicted with a double-edged dagger.
The defendant Catalino Merced pleaded not guilty. He testified that while he was
resting, in company with Apolonia Patron, in the house of Teodora Sarasin, where
he and Apolonia had eaten their supper at Sarasin’s invitation, Pantaleon Arabe
entered the place and, after telling the defendant to prepare himself because he,
Arabe, was going to kill him, put out the light and gave him several blows with the
bolo, Exhibit B, with which he was provided, inflicting three wounds in his right leg
and one in his right arm; that these wounds were inflicted while witness was lying
on the floor of the house, wherefore he arose to defend himself and a struggle
ensued between them during which he succeeded in snatching from Arabe’s belt
the dagger, Exhibit B, and with it wounded Arabe in the back, as a result of which
wound, he, Arabe, died. The defendant Apolonia Patron, who also pleaded not
guilty, did not testify at the trial.
The facts related above certainly constitute the crime of homicide comprised within
Article 404 of the Penal Code. The record does not show that the violent death of
Pantaleon Arabe, as the result of one single serious and mortal wound in the left
side of his back, was attended by any of the qualifying circumstances enumerated in
Article 503 of said code, for, at the time of the struggle, no disinterested eye-
witness was present aside from the two defendants and the owner of the house,
which latter person, awakened by the fight waged between the deceased and his
assailant within the main room of the house, was unable to see and witness what
occurred, on account of there being no light in the house, and learned that one of
the fighters was Pantaleon Arabe only because, on returning to her house, which
she had left through fear, to get her children, she found the deceased, covered with
blood, lying stretched out on the bed where she had lain, and, from the presence of
the deceased in her house, she deduced the conclusion that the fight had been
between the deceased and the defendant Merced. Furthermore, with respect to
the qualification of the crime, it may be held to have been proven, there being no
proof to the contrary, that the crime committed was only that of homicide, for the
reason that the mortal wound which caused Arabe’s death was a consequence of
the struggle engaged in by the latter and the defendant Merced.
Aside from the fact that there is no proof in support of the statement made by the
defendant Merced to the effect that when Pantaleon Arabe entered the house in
question, he told the defendant to prepare himself for he, Arabe, was going to kill
him, and that immediately thereafter Arabe put out the light and assaulted him
with the weapon which he was carrying, on which account he claims it became
necessary for him, in self-defense, to wound Arabe with the dagger which he
succeeded in snatching from the latter’s belt, this plea is unsustainable, because it is
not true and because, even though it were true and even if the deceased did
succeed in entering the room in which the defendants Merced and Patron were
lying, and did immediately thereupon assault Merced, giving him several blows with
the bolo which he, Arabe, carried, that assault was natural and lawful, for the
reason that it was made by a deceived and offended husband in order to defend his
honor and rights by punishing the offender of his honor, and if he had killed his wife
and the other defendant, he would have exercised a lawful right and such acts
would have fallen within the sanction of Article 423 of the Penal Code, and not of
the article thereof which penalizes the crime of homicide.
Despite the testimony given by the defendant, it is unquestionable that Apolonia
Patron, the wife of the deceased, was that night in the room in which Catalino
Merced was lying; in fact he finally admitted that, on account of the illicit relations
between himself and this woman, they were in the habit of keeping trysts and
meeting each other on other occasions, and that, on the night in question, he was
in the house where the crime was committed, in company with his codefendant
Patron, for, during the struggle, the owner of the house Teodora Sarasin heard
Patron say to her (Patron’s) husband, the deceased, that she herself was wounded.
The defendant Merced well knew that, by maintaining unlawful relations with
Apolonia Patron, a married woman, he was performing an unlawful and criminal act
and exposed himself to the vengeance of the offended husband, and that, by the
defendants’ meeting each other in the living room of said house, which was near
the house in which the offended husband was living, he was running the danger of
the latter’s surprising them there, as in fact it did occur.
As regards the participation which the unfaithful wife may have had in the killing of
her husband, for she was present during the struggle that ensued between the
deceased and her codefendant, the record does not disclose conclusive proof that
she cooperated with, or aided, Catalino Merced when he assaulted her husband
and inflicted upon him the single mortal wound that produced his death, for the
defendant Catalino Merced himself confessed that he inflicted this wound upon the
deceased with the dagger which he succeeded in taking from the latter’s belt.
It was not proven who was the real owner of the dagger, Exhibit B, and,
notwithstanding the defendant Merced’s testimony, there is no circumstantial
evidence in the record to show that the weapon belonged to the deceased.
The witness Filomena Ago, a sister-in law of Catalino Merced, testified that several
days before the crime she had seen this dagger in the hands of Apolonia Patron,
and that on the night of the crime, upon the defendant Merced’s return to her
house where he was living, she saw blood on his clothes, and noticed that he left
the dagger on the floor beside his bed, wherefore she picked it up and it was
afterwards handed to the justice of the peace.
Notwithstanding the testimony just alluded to, it cannot be affirmed that the
dagger belonged to the defendant Patron, because, for the very reason that the
defendant Merced admitted and confessed that he seriously wounded the
deceased with this dagger, it is to be presumed that Merced was its owner, and that
he carried it with him when he went to the house of the crime in agreement with
his codefendant Patron; besides, there is no proof that the latter carried the dagger
that night, and therefore it cannot be asserted that the unfaithful wife furnished
the weapon with which her codefendant Catalino Merced inflicted upon her
husband serious wound followed by his death. For these reasons it must be
concluded that the record does not show any proof, circumstantial or other, that
Apolonia Patron was at least an accomplice in the commission of the punishable act
of which her husband was the victim. The acquittal of this defendant is all the more
proper in that the complaint did not charge her with having taken any part as an
accomplice in the commission of the crime. For the foregoing reasons, and no
generic extenuating or aggravating circumstance having attended the execution of
the crime, and the first error assigned to the judgment appealed from being held to
have been refuted, said judgment should be, as it hereby is, affirmed, in so far as it
concerns Catalino Merced, with the proviso, however, that he shall pay P1,000 to
the heirs of the deceased, and one-half of the costs of both instances; and the
Judgment appealed from is reversed in respect to Apolonia Patron, who should be,
and hereby is, absolved from this cause. The other one-half of the costs of both
instances shall be borne de officio. So ordered.
Arellano, C.J., Johnson, Street, Malcolm and Avanceña, JJ., concur.
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, v. DON VEGA Y RAMIL,
ACCUSED-APPELLANT.
DECISION
CAGUIOA, J.:
Before the Court is an appeal filed under Section 13(c), Rule 124 of the
Rules of Court from the Decision1 dated May 12, 2014 of the Court of
Appeals (CA), Fifth (5th ) Division, in CA-G.R. CR-HC No. 05072, which
affirmed the Decision2 dated May 31, 2011 of the Regional Trial Court,
Branch 42, Manila (RTC), in Criminal Case No. 09-266191, finding herein
accused-appellant Don Vega y Ramil (Don) guilty of the crime of Murder
under Article 248 of the Revised Penal Code (RPC).
The Facts
Don was charged with the crime of Murder under the following
Information:
That on or about January 18, 2009, in the City of Manila, Philippines, the
said accused, with intent to kill, qualified with treachery and evident
premeditation, did then and there willfully, unlawfully and feloniously take
[sic], attack, assault and use personal violence upon the person of one
MANUEL ISIP y PADILLA @ Antuling, by then and there repeatedly stabbing
the latter on different parts of his body with a bladed weapon, thereby
inflicting upon the said MANUEL ISIP y PADILLA @ Antuling mortal stab
wounds which were the direct and immediate cause of his death
thereafter.
Contrary to law.3
Upon arraignment, Don pleaded not guilty.
Version of the Prosecution
The witnesses for the prosecution were SPO2 Edmundo Cabal, Jennifer S.
Torres, Aldrin R. Fernandez, Dr. Romeo T. Salen, and Maricel A. Calixto,
whose versions of the incident were summarized by the RTC and adopted
by the CA and the Office of the Solicitor General, viz.:
[O]n 18 January 2009 at about 11:30 in the evening, the victim, Manuel
Padilla Isip, was at Arellano Street, Malate, Manila because his friend, a
certain Ogad Venus, was celebrating his birthday. Among his drinking
buddies was Aldrin Roldan Fernandez, witness for the prosecution. They
were around fifteen at that time including the celebrator. While drinking,
chatting, and listening to music, they spotted accused Don Vega who was
about four [arms'] length away sniffing rugby from a bottle. After a few
hours, Don Vega approached them and caused a disturbance. He smashed
several items. Victim Manuel Isip tried to pacify the accused saying, "pre,
huwag naman dito, kasi may nagkakasiyahan dito" but accused harshly
replied, "huwag kang makialam dito, baka ikaw ang samain." Victim
Manuel Isip did not comment and merely turned his back to avert a bigger
trouble. While the victim's back was turned on him, accused suddenly
grabbed [the] victim from behind, wrapped his left arm around [the]
victim's neck and using his right hand, plunged a knife to his (Manuel's)
chest. Victim Manuel Isip was rushed to the Ospital ng Maynila but was
declared "dead on arrival."
The victim (Manuel Isip) suffered six stab wounds and one abrasion on the
body. The cause of his death is [sic] the four stab wounds that penetrated
the frontal cavities of the chest.4
Version of the Defense
The defense offered the lone testimony of Don, which was recounted by
the RTC in its Decision, in this manner:
For its part, the defense presented accused himself, who painted an
entirely different picture of the incident. He claimed that on 18 January
2009, at about 11:00 o'clock in the evening, [h]e was along Tuazon St., San
Andres, Manila, drinking with victim Manuel Isip and a certain
"Fernandez," together with the birthday celebrator called "Ogad." A
certain "Jeffrey" and the father of the celebrator were also there. More
than fifteen joined the drinking spree. The mood was fine. He requested
victim Manuel Isip to play his theme song. The victim asked him to wait
because there were many who made similar request[s]. He reiterated his
request to victim several times but he ignored him. He then approached
the victim, but the latter punched him. Upset, he went back to his table
and picked up a bladed weapon. Victim Manuel Isip suddenly charged
towards him, so he stabbed him. He thought the people will pacify him
(accused), but he was wrong. He then dashed to his house because people
were ganging up on him. He was apprehended inside his abode and he
voluntarily surrendered to those who arrested him. [The victim] was
unarmed. It was unfortunate because he did not have previous "bad
blood" with [the] victim. He regrets what has happened; it was unwilled. 5
Ruling of the RTC
After trial on the merits, in its Decision 6 dated May 31, 2011, the RTC
convicted Don of the crime of Murder. The dispositive portion of said
Decision reads:
WHEREFORE, the Court finds accused DON VEGA y RAMIL guilty beyond
reasonable doubt of the crime of MURDER. He is hereby sentenced to
suffer the penalty of Reclusion Perpetua. Accused is further ordered to pay
Fifty Thousand Pesos (Php50,000.00) as civil indemnity and [Php]50,000.00
as moral damages to the heirs of Manuel Padilla Isip.
SO ORDERED.7
The RTC ruled that all the elements of Murder are present in the instant
case.8 It also ruled that the defense was not able to establish all the
elements of self-defense.9 One of the important elements of self-defense is
that there be reasonable necessity of the means employed to prevent or
repel the unlawful aggression.10 However, in this case, there is none since
Don used a bladed weapon to attack an unarmed victim. 11 More
importantly, there was no unlawful aggression. The act of Manuel Isip
(Manuel) charging towards Don cannot even be considered as unlawful
aggression absent any showing of any intention of the victim to harm the
accused.12 Thus, on this score, the theory of self-defense, according to the
RTC, falls flat on its face.13 Further, considering that Don claimed that there
were 15 eyewitnesses to the crime, he failed to present any witness to
fortify his contention that he acted in self-defense. 14 Lastly, the RTC ruled
that treachery is present since Don grabbed Manuel from behind and
suddenly attacked the unarmed victim with a bladed weapon. 15
Aggrieved, Don appealed to the CA.
Ruling of the CA
On appeal, in its Decision 16 dated May 12, 2014, the CA affirmed the
conviction by the RTC with modifications:
WHEREFORE, the instant appeal is DISMISSED. The Decision of the
Regional Trial Court of Manila, Branch 42 dated May 31, 2011 in Criminal
Case No. 09-266191 is AFFIRMED WITH MODIFICATION in that accused-
appellant Don Vega y Ramil is ordered to pay the heirs of Manuel Padilla
Isip the following: a) Php75,000.00 as civil indemnity; b) Php75,000.00 as
moral damages; c) Php14,000.00 as actual damages; and d) Php30,000.00
as exemplary damages. Further, all monetary awards for damages shall
earn interest at the legal rate of 6% per annum from date of finality of this
Decision until full payment thereof.
SO ORDERED.17
The CA likewise held that the elements of self-defense are
lacking.18 Moreover, the CA said that Don's flight from the place where the
crime was committed, his non-reporting of the crime to the police, and his
failure to voluntarily surrender to the police after the commission of the
crime fully warranted the RTC's rejection of his claim of self-
defense.19 Lastly, the CA ruled that the killing of the victim was attended by
treachery qualifying the crime to Murder. 20
Hence, this appeal.
Issues
Whether the CA erred in affirming Don's conviction for Murder.
The Court's Ruling
The appeal is partly meritorious.
It is settled that findings of fact of the trial courts are generally accorded
great weight; except when it appears on the record that the trial court may
have overlooked, misapprehended, or misapplied some significant facts or
circumstances which if considered, would have altered the result. 21 This is
axiomatic in appeals in criminal cases where the whole case is thrown
open for review on issues of both fact and law, and the court may even
consider issues which were not raised by the parties as errors. 22 The appeal
confers the appellate court full jurisdiction over the case and renders such
competent to examine records, revise the judgment appealed from,
increase the penalty, and cite the proper provision of the penal law. 23
After a careful review and scrutiny of the records, the Court affirms the
conviction of Don, but only for the crime of Homicide, instead of Murder,
as the qualifying circumstance of treachery was not proven in the killing of
Manuel.
The accused failed to prove
self-defense
In questioning his conviction, Don argues that he should not be criminally
liable for the death of the victim because he only acted in self-defense. He
avers that he was merely requesting Manuel to play his theme song, but
when he approached to follow-up on his request, the victim suddenly
punched him, which thus triggered him to stab the victim.24
This argument deserves scant consideration.
An accused who pleads self-defense admits to the commission of the crime
charged.25 He has the burden to prove, by clear and convincing evidence,
that the killing was attended by the following circumstances: (1) unlawful
aggression on the part of the victim; (2) reasonable necessity of the means
employed to prevent or repel such aggression; and (3) lack of sufficient
provocation on the part of the person resorting to self-defense. 26 Of these
three, unlawful aggression is indispensable. Unlawful aggression refers to
"an actual physical assault, or at least a threat to inflict real imminent
injury, upon a person."27 Without unlawful aggression, the justifying
circumstance of self-defense has no leg to stand on and cannot be
appreciated.28
The Court agrees with the CA that Don failed to discharge his burden. All
the requisites of self-defense are wanting in this case:
First, there is no unlawful aggression on the part of the victim. For unlawful
aggression to be present, there must be real danger to life or personal
safety.29 Accordingly, the accused must establish the concurrence of the
three elements of unlawful aggression, namely: (a) there must be a
physical or material attack or assault; (b) the attack or assault must be
actual, or, at least, imminent; and (c) the attack or assault must be
unlawful.30 None of the elements of unlawful aggression was proven by the
defense. Aside from Don's self-serving statement that it was Manuel who
punched and attacked him, not one of the persons present at the incident
corroborated his account.31 Neither did he present any medical record
showing that he sustained any injuries as the result of the attack by
Manuel.32
Second, in the absence of unlawful aggression on the part of the victim, the
second requisite of self-defense could not have been present. Even
assuming that there was unlawful aggression, the means employed by Don
in repelling the alleged attack by Manuel was not reasonably necessary.
Manuel was unarmed and had his back turned while Don used a bladed
weapon to "repel the attack" and stab Manuel repeatedly. 33 Thus, the CA
was correct in ruling that the means employed by Don in repelling the
attack was unreasonable.
Lastly, the third requisite requires the person mounting a defense to be
reasonably blameless. He or she must not have antagonized or incited the
attacker into launching an assault. 34 In this case, Don was not entirely
blameless as the reason why Manuel scolded him was because he was
breaking things and making unnecessary disturbance. 35 It was also Don
who suddenly rushed to the victim and stabbed the latter several times in
the chest.36 In addition, there was no sufficient provocation on the part of
Manuel. Based on the account of the witnesses of the prosecution, Manuel
merely implored Don to refrain from breaking things and making
unnecessary disturbance.37 In fact, when Don uttered harsh words against
Manuel, the latter did not make a comment and instead turned his back
from the former.38
Hence, the Court finds that Don failed to prove that he acted in self-
defense.
Treachery was not established
by clear and convincing evidence
In the assailed Decision, the CA affirmed the RTC's finding that the
qualifying circumstance of treachery was present, thereby making Don
liable for Murder instead of Homicide. The CA held:
Applying the foregoing pronouncement, we find that alevosia is thus
present in the case at bar. From the statements of Fernandez and Calixto,
accused-appellant wrapped his arm around the neck of Manuel and
stabbed the victim the moment he turned his back from the accused-
appellant. Evidently, the attack is so sudden and unexpected preventing
any chance from the victim to defend himself. In other words, accused-
appellant's position in attacking Manuel rendered the victim defenseless
and unable to retaliate. Moreso [sic], the fatality and quantity of the stab
wounds forestalled any possibility on the part of Manuel of resisting the
attack. All told, the attack was executed in a manner that tended to directly
and specifically ensure the execution of the offense.39
It is established that the qualifying circumstance of treachery must be
proven by clear and convincing evidence. 40 Thus, for Don to be convicted of
Murder, the prosecution must not only establish that he killed Manuel; it
must also be proven that the killing of Manuel was attended by treachery.
There is treachery when the offender commits any of the crimes against
persons, employing means and methods or forms in the execution thereof
which tend to directly and specially ensure its execution, without risk to
himself arising from the defense which the offended party might
make.41 To qualify as an offense, the following conditions must exist: (1)
the assailant employed means, methods or forms in the execution of the
criminal act which give the person attacked no opportunity to defend
himself or to retaliate; and (2) said means, methods or forms of execution
were deliberately or consciously adopted by the assailant. 42 The essence of
treachery is the sudden and unexpected attack by an aggressor on the
unsuspecting victim, depriving the latter of any chance to defend himself
and thereby ensuring its commission without risk of himself. 43
In order to appreciate treachery, both elements must be present. 44 It is not
enough that the attack was "sudden," "unexpected," and "without any
warning or provocation."45 There must also be a showing that the offender
consciously and deliberately adopted the particular means, methods and
forms in the execution of the crime which tended directly to insure such
execution, without risk to himself.
In the case at bar, the following circumstances negate the presence of
treachery:
First, the stabbing incident happened during a drinking spree in which Don
was already a part of. He did not deliberately seek the presence of Manuel
as he was already in the same vicinity as Manuel, joining the merriment
when he stabbed the latter.
Second, in killing Manuel, Don merely picked up a bladed weapon from his
table - there was no mention in the records as to who owned the said
weapon. In a similar case, the Court held that treachery cannot be
presumed merely from the fact that the attack was sudden. The
suddenness of an attack does not, of itself, suffice to support a finding
of alevosia, even if the purpose was to kill, so long as the decision was
made all of a sudden and the victim's helpless position was accidental. 46
Based on the first and second circumstances abovementioned, Don's
decision to attack Manuel was more of a sudden impulse on his part than a
planned decision.
Lastly, as testified to by the witnesses of the prosecution, the incident
happened during a drinking spree where there were more or less 15
people, excluding Don and Manuel. If Don wanted to make certain that no
risk would come to him, he could have chosen another time and place to
stab Manuel. In another case, the Court held that when aid was easily
available to the victim, such as when the attendant circumstances show
that there were several eyewitnesses to the incident, no treachery could
be appreciated because if the accused indeed consciously adopted means
to insure the facilitation of the crime, he could have chosen another place
or time.47 Thus, the Court can reasonably conclude that Don acted
impetuously in suddenly stabbing Manuel.
Proper penalty and award of
damages
With the removal of the qualifying circumstance of treachery, the crime is
therefore Homicide and not Murder. The penalty for Homicide under
Article 249 of the RPC is reclusion temporal. In the absence of any
modifying circumstance, the penalty shall be imposed in its medium
period. Applying the Indeterminate Sentence Law, the penalty next lower
in degree is prision mayor with a range of six (6) years and one (1) day to
twelve (12) years.
Thus, Don shall suffer the indeterminate penalty of eight (8) years and one
(1) day of prision mayor, as minimum, to fourteen (14) years, eight (8)
months, and one (1) day of reclusion temporal, as maximum.
Finally, in view of the Court's ruling in People v. Jugueta,48 the damages
awarded in the CA Decision are hereby modified to civil indemnity, moral
damages, and temperate damages of P50,000.00 each.
WHEREFORE, in view of the foregoing, the appeal is hereby PARTIALLY
GRANTED. The Court DECLARES accused-appellant Don Vega y
Ramil GUILTY of HOMICIDE, for which he is sentenced to suffer the
indeterminate penalty of eight (8) years and one (1) day of prision mayor,
as minimum, to fourteen (14) years, eight (8) months, and one (1) day
of reclusion temporal, as maximum. He is further ordered to pay the heirs
of Manuel Isip y Padilla the amount of Fifty Thousand Pesos (P50,000.00)
as civil indemnity, Fifty Thousand Pesos (P50,000.00) as moral damages,
and Fifty Thousand Pesos (P50,000.00) as temperate damages. All
monetary awards shall earn interest at the legal rate of six percent (6%)
per annum from the date of finality of this Decision until fully paid.
SO ORDERED.
LUIS A. TABUENA, petitioner,
vs.
HONORABLE SANDIGANBAYAN, and THE PEOPLE OF THE
PHILIPPINES, respondents.
G.R. No. 103507 February 17, 1997
ADOLFO M. PERALTA, petitioner,
vs.
HON. SANDIGANBAYAN (First Division), and THE PEOPLE OF THE
PHILIPPINES, represented by the OFFICE OF THE SPECIAL
PROSECUTOR, respondents.
 
Facts:
Then President Marcos instructed Luis Tabuena over the phone to pay
directly to the president’s office and in cash what the Manila International
Airport Authority (MIAA) owes the Philippine National Construction
Corporation (PNCC), pursuant to the 7 January 1985 memorandum of then
Minister Trade and Industry Roberto Ongpin. Tabuena agreed. About a
week later, Tabuena received from Mrs. Fe Roa-Gimenez, then private
secretary of Marcos, a Presidential Memorandum dated 8 January 1986
reiterating in black and white such verbal instruction. In obedience to
President Marcos’ verbal instruction and memorandum, Tabuena, with the
help of Gerardo G. Dabao and Adolfo Peralta, caused the release of P55
Million of MIAA funds by means of three (3) withdrawals. On 10 January
1986, the first withdrawal was made for P25 Million, following a letter of
even date signed by Tabuena and Dabao requesting the PNB extension
office at the MIAA the depository branch of MIAA funds, to issue a
manager’s check for said amount payable to Tabuena. The check was
encashed, however, at the PNB Villamor Branch. Dabao and the cashier of
the PNB Villamor branch counted the money after which, Tabuena took
delivery thereof. The P25 Million in cash was delivered on the same day to
the office of Mrs. Gimenez. Mrs. Gimenez did not issue any receipt for the
money received. Similar circumstances surrounded the second
withdrawal/encashment and delivery of another P25 Million, made on 16
January 1986. The third and last withdrawal was made on 31 January 1986 appealed from whether they are made the subject of assignments of error
for P5 Million. Peralta was Tabuena’s co-signatory to the letter- request for or not.
a manager’s check for this amount. Peralta accompanied Tabuena to the DIGEST: PEOPLE VS. GENOSA
PNB Villamor branch as Tabuena requested him to do the counting of the Criminal Law | Battered Woman Syndrome as Self-Defense | Treachery as
P5 Million. After the counting, the money was loaded in the trunk of a Qualifying Circumstance 
Tabuena’s car. Peralta did not go with Tabuena to deliver the money to See full text here
Mrs. Gimenez’ office. It was only upon delivery of the P5 Million that Mrs. Appellee: People of the Philippines
Gimenez issued a receipt for all the amounts she received from Tabuena. Appellant: Marivic Genosa
The receipt was dated January 30,1986. Tabuena and Peralta were charged G.R. No. 135981
for malversation of funds, while Dabao remained at large. One of the September 29, 2000
justices of the Sandiganbayan actively took part in the questioning of a Ponente: Panganiban, J.
defense witness and of the accused themselves; the volume of the
questions asked were more the combined questions of the counsels. On 12 “Aggression, if not continuous, does not warrant self-defense. In the
October 1990, they were found guilty beyond reasonable doubt. Tabuena absence of such aggression, there can be no self-defense – complete of
and Peralta filed separate petitions for review, appealing the incomplete – on the part of the victim.”
Sandiganbayan decision dated 12 October 19990 and the Resolution of 20 FACTS:
December 1991. Appellant was married to the victim Ben Genosa. In their first year of
  marriage, Marivic and Ben lived happily but soon thereafter, the couple
Issue: would quarrel often and their fights would become violent. Ben, a habitual
Whether or not petitioners are guilty of the crime of malversation. drinker, became cruel to Marivic; he would provoke her, slap her, pin her
  down on the bed or beat her. These incidents happened several times and
Held: Marivic would often run home to her parents. She had tried to leave her
Luis Tabuena and Adolfo Peralta are acquitted of the crime of husband at least five times, but Ben would always follow her and they
malversation. Tabuena acted in strict compliance with the MARCOS would reconcile.
Memorandum. The order emanated from the Office of the President and On the night of the killing, appellant, who was then eight months pregnant,
bears the signature of the President himself, the highest official of the and the victim quarreled. The latter beat her, however, she was able to run
land. It carries with it the presumption that it was regularly issued. And on to another room. Allegedly there was no provocation on her part when she
its face, the memorandum is patently lawful for no law makes the payment got home that night, and it was her husband who began the provocation.
of an obligation illegal. This fact, coupled with the urgent tenor for its Frightened that her husband would hurt her and wanting to make sure she
execution constrains one to act swiftly without question. Records show would deliver her baby safely, appellant admitted having killed the victim,
that the Sandiganbayan actively took part in the questioning of a defense who was then sleeping at the time, with the use of a gun. She was
witness and of the accused themselves. The questions of the court were in convicted of the crime of parricide. Experts opined that Marivic fits the
the nature of cross examinations characteristic of confrontation, probing profile of a battered woman syndrome and at the time she killed her
and insinuation. Tabuena and Peralta may not have raised the issue as an husband, her mental condition was that she was re-experiencing the
error, there is nevertheless no impediment for the court to consider such trauma, together with the imprint of all the abuses that she had
matter as additional basis for a reversal since the settled doctrine is that an experienced in the past.
appeal throws the whole case open to review, and it becomes the duty of ISSUES:
the appellate court to correct such errors as may be found in the judgment
1.) Whether or not appellant can validly invoke the Battered Woman employed the method by which she committed the crime in order to
Syndrome as constituting self-defense; ensure its execution, the Court resolved the doubt in her favor.
2.) Whether or not treachery attended the killing.
RULING:
No, the Court ruled in the negative on both issues.
1.) The Court held that the defense failed to establish all the elements of
self-defense arising from the battered woman syndrome, to wit: (a) each of
the phases of the cycle of violence must be proven to have characterized
at least two battering episodes between the appellant and her intimate
partner; (b) the final acute battering episode preceding the killing of the
batterer must have produced in the battered persons mind an actual fear
of an imminent harm from her batterer and an honest belief that she
needed to use force in order to save her life; and (c) at the time of the
killing, the batterer must have posed probable – not necessarily immediate
and actual – grave harm to the accused, based on the history of violence
perpetrated by the former against the latter. Taken altogether, these
circumstances could satisfy the requisites of self-defense.
Under the existing facts of the case, however, not all of these were duly
established. Here, there was a sufficient time interval between the
unlawful aggression of Ben and her fatal attack upon him. In fact, she had
already been able to withdraw from his violent behavior and escape to
their children’s bedroom. The attack had apparently ceased and the reality
or even imminence of the danger he posed had ended altogether. Ben was
no longer in a position that presented an actual threat on her life or safety.
2.) The Court ruled that when a killing is preceded by an argument or a
quarrel, treachery cannot be appreciated as a qualifying circumstance,
because the deceased may be said to have been forewarned and to have
anticipated aggression from the assailant. Moreover, in order to
appreciate alevosia, the method of assault adopted by the aggressor must
have been consciously and deliberately chosen for the specific purpose of
accomplishing the unlawful act without risk from any defense that might
be put up by the party attacked. Here, there is no showing that appellant
intentionally chose a specific means of successfully attacking her husband
without any risk to herself from any retaliatory act that he might make. It
appears that the thought of using the gun occurred to her only at about
the same moment when she decided to kill her batterer-spouse. Thus, in
the absence of any convincing proof that she consciously and deliberately