Ebet, G.R. No.

181635, November 15, 2010

G.R. No. 181635               November 15, 2010

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
NONOY EBET, Appellant.

DECISION

PERALTA, J.:

Before this Court is the appeal from the Decision1 of the Court of Appeals (CA) in CA-G.R. CR-H.C.
No. 00257, dated July 31, 2007, which sustained the judgment2 of the Regional Trial Court (RTC) in
Criminal Case No. 86-97 dated October 12, 1999, finding appellant Nonoy Ebet guilty beyond
reasonable doubt of the crime of Robbery with Homicide.

The facts, as shown in the records, are the following:

On February 3, 1997, around 7:30 p.m., three (3) men entered the house of the spouses Gabriel
Parcasio and Evelyn Parcasio. Of the three men, Evelyn recognized one of them to be appellant
Ebet, having been a constant visitor of her husband. Upon entering, one of the unidentified men
poked a gun at Evelyn, while another unidentified man wielding a knife, held Evelyn's daughter,
Joan. At that moment, Evelyn saw appellant holding a knife and standing at the door of the house.
The men asked Evelyn where her husband was hiding and compelled her to lead them to the
house's underground. After the two unidentified men reached the underground, Evelyn heard her
husband shout for her and her daughters to run, which the latter did. Thereafter, a gunshot was
heard, as well as a commotion underground. Joan, after hearing the gunshot, returned to the house
fearing that her mother was shot. It was then that the men accosted her and asked for her money.
With no money to give, the men took her bag worth One Hundred Thirty Pesos (₱130.00), a wrist
watch worth One Hundred Twenty-Five Pesos (₱125.00) and Thirty Pesos (₱30.00) cash, the total
of which is Two Hundred Eighty-Five Pesos (₱285.00). When the men left the premises, Evelyn
went back to their house and saw her husband bleeding to death due to multiple stab wounds. The
husband eventually died due to the said stab wounds.

Thus, an Information3 dated July 10, 1997 was filed, charging appellant with the crime of Robbery
with Homicide, which reads:

That on or about February 3, 1997, in the Municipality of Kidapawan, Province of Cotabato,

Philippines, the said accused, in company with JOHN DOE and PETER DOE, whose identities are
still unknown and at large, armed with handgun and knife, conspiring, confederating and mutually
helping one another, with intent to gain by means of violence and intimidation, did then and there,
willfully and forcibly get, rob and carry away, one (1) wrist watch worth ONE HUNDRED TWENTY-
FIVE PESOS (₱125.00); one (1) school bag worth ONE HUNDRED THIRTY PESOS (₱130.00); and
cash amounting to THIRTY PESOS (₱30.00), with the total amount of TWO HUNDRED EIGHTY-
FIVE PESOS (₱285.00), Philippine Currency, owned by JOAN PARCASIO, to the damage and
prejudice of JOAN PARCASIO.

That on the same occasion, above-named accused with intent to kill, willfully, unlawfully and
feloniously attack, assault, stab, shot and use physical violence to the person of GABRIEL
PARCASIO, JR., thus inflicting upon the latter multiple stab wounds in the different parts of his body,
which caused his death thereafter.

CONTRARY TO LAW.

When arraigned4 on September 17, 1997, appellant, assisted by counsel, pleaded not guilty to the
crime charged against him.

Consequently, the trial on the merits ensued.

The prosecution presented the testimonies of Evelyn Parcasio and Joan Parcasio, testifying as to
the facts narrated earlier.

For his defense, appellant presented his own testimony, as well as those of Virgilio Balili, Fernando
Saud and Feliciano Jordan. Based on their testimonies, the following transpired:

On February 3, 1997, appellant was in the house of Agri Saud, which was 200 meters away from the
house of Gabriel and Evelyn Parcasio. Appellant was in the said house from 5:00 p.m. until 9:00
p.m. He was there butchering a pig, together with Agri Saud, Efren Leon, Willy Estigoy and Feliciano
Jordan. Appellant claimed that he never left the house or the group from the time he arrived at Agri
Saud's house until they dispersed later in the evening.

The trial court found appellant guilty beyond reasonable doubt of the crime of Robbery with
Homicide. The dispositive portion of the Decision reads:

WHEREFORE, prescinding from the foregoing facts and considerations, the Court finds accused
Nonoy Ebet guilty beyond reasonable doubt as principal by direct participation of the crime of
Robbery with Homicide, hereby sentenced him to suffer the penalty of Reclusion Perpetua. He is
hereby ordered to indemnify the heirs of Gabriel Parcasio the sum of ₱50,000.00.

With costs de officio.

IT IS SO ORDERED.5

A Notice of Appeal6 was filed and this Court accepted the appeal. However, in a Resolution7 dated
September 15, 2004, this Court transferred the case to the CA, in conformity with People of the
Philippines v. Efren Mateo y Garcia,8 modifying the pertinent provisions of the Revised Rules on
Criminal Procedure, more particularly Sections 3 and 10 of Rule 122, Section 13 of Rule 124,
Section 3 of Rule 125 and any other rule insofar as they provide for direct appeals from the RTCs to
this Court in cases where the penalty imposed is death, reclusion perpetua or life imprisonment, as
well as the resolution of this Court’s en banc, dated September 19, 1995, in Internal Rules of the
Supreme Court in cases similarly involving the death penalty, pursuant to the Court's power to
promulgate rules of procedure in all courts under Section 5, Article VIII of the Constitution, and
allowing an intermediate review by the Court of Appeals before such cases are elevated to this
Court.

On July 31, 2007, the CA affirmed with modification the decision of the trial court. The dispositive
portion of the Decision reads:

WHEREFORE, the assailed Decision is AFFIRMED with MODIFICATION that appellant shall pay
₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages, ₱25,000.00 as temperate damages
and to return the wrist watch, school bag and ₱30.00 in cash or pay its reasonable value in the total
amount of P285.00 in case restitution is not feasible, to the heirs of the victim.

SO ORDERED.9

Hence, the present appeal.

In his Brief,10 appellant assigned the following errors:

THE TRIAL COURT ERRED IN GIVING FULL CREDENCE TO THE TESTIMONIES OF THE
PROSECUTION WITNESS.

II.

THE TRIAL COURT ERRED IN NOT GIVING ANY PROBATIVE VALUE TO THE DFENSE OF
ALIBI BY THE ACCUSED.

According to appellant, the prosecution witnesses failed to positively identify him. He also argues
that the trial court, in rejecting the defense of alibi, simply adopted the general principle of alibi as a
defense, being inherently weak, but failed to point out any inconsistencies and falsities to his
testimony, as well as those of the other witnesses for the defense.

On the other hand, the Office of the Solicitor General (OSG) in its Brief,11 argued the following:

THE TRIAL COURT CORRECTLY GAVE FULL CREDENCE TO THE PROSECUTION

EVIDENCE.

II

IN THE LIGHT OF THE POSITIVE AND UNERRING IDENTIFICATION OF APPELLANT BY

THE PROSECUTION WITNESS, THE TRIAL COURT CORRECTLY REJECTED HIS
DEFENSE OF DENIAL AND ALIBI.

The OSG insists that the prosecution witnesses positively and categorically recognized and
identified appellant as one of the perpetrators; thus, the trial court correctly appreciated the evidence
presented by the prosecution. It further posits that appellant's defense of denial and alibi was
correctly rejected by the trial court, because those defenses cannot prevail over the positive
identification of appellant.

With both arguments from the parties under consideration, this Court finds the appeal unmeritorious.

In People v. De Jesus,12 this Court had the occasion to meticulously expound on the nature of the
crime of Robbery with Homicide, thus:

Article 294, paragraph 1 of the Revised Penal Code provides:

Art. 294. Robbery with violence against or intimidation of persons – Penalties. - Any person guilty of
robbery with the use of violence against or any person shall suffer:

The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime
of homicide shall have been committed, or when the robbery shall have been accompanied by rape
or intentional mutilation or arson.

For the accused to be convicted of the said crime, the prosecution is burdened to prove the
confluence of the following elements:

(1) the taking of personal property is committed with violence or intimidation against persons;

(2) the property taken belongs to another;

(3) the taking is animo lucrandi; and

(4) by reason of the robbery or on the occasion thereof, homicide is committed.

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

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

Intent to rob is an internal act but may be inferred from proof of violent unlawful taking of personal
property. When the fact of asportation has been established beyond reasonable doubt, conviction of
the accused is justified even if the property subject of the robbery is not presented in court. After all,
the property stolen may have been abandoned or thrown away and destroyed by the robber or
recovered by the owner. The prosecution is not burdened to prove the actual value of the property
stolen or amount stolen from the victim. Whether the robber knew the actual amount in the
possession of the victim is of no moment because the motive for robbery can exist regardless of the
exact amount or value involved.

When homicide is committed by reason or on the occasion of robbery, all those who took part as
principals in the robbery would also be held liable as principals of the single and indivisible felony of
robbery with homicide although they did not actually take part in the killing, unless it clearly appears
that they endeavored to prevent the same.
If a robber tries to prevent the commission of homicide after the commission of the robbery, he is
guilty only of robbery and not of robbery with homicide. All those who conspire to commit robbery
with homicide are guilty as principals of such crime, although not all profited and gained from the
robbery. One who joins a criminal conspiracy adopts the criminal designs of his co-conspirators and
can no longer repudiate the conspiracy once it has materialized.

Homicide is said to have been committed by reason or on the occasion of robbery if, for instance, it
was committed to (a) facilitate the robbery or the escape of the culprit; (b) to preserve the
possession by the culprit of the loot; (c) to prevent discovery of the commission of the robbery; or,
(d) to eliminate witnesses in the commission of the crime. As long as there is a nexus between the
robbery and the homicide, the latter crime may be committed in a place other than the situs of the
robbery.13

The trial court, in finding appellant guilty beyond reasonable doubt of the crime of robbery with
homicide, gave credence to the testimonies of the prosecution witnesses. As it explained:

The court finds the testimonies of Evelyn and Joan Parcasio as truthworthy, honest and
straightforward. It is significant to note that the prosecution's testimonies have not been assailed. No
motive was advanced by the defense why the witnesses will falsely testify and implicate the herein
accused in the commission of such a heinous crime. Thus, it has been ruled by the Supreme Court
"that when there is no evidence indicating that the principal witness for the prosecution was moved
by improper motive, the presumption is that he was not so moved, and his testimony is entitled to full
faith and credit. Denial, like alibi is inherently a weak defense and cannot prevail over the positive
and credible testimony of the prosecution witness that the accused committed the crime. (People vs.
Belibet, 194 SCRA 588).

Moreover, circumstantial evidence have been duly established in the case at bar which is in
conformity with the rules of court. That accused Nonoy Ebet in the company [of] two (2) unidentified
persons entered the house of Gabriel Parcasio, once inside took [the] personal properties of Joan,
daughter of Gabriel, and thereafter the accused took turns in stabbing Gabriel Parcasio to death.14

Appellant's main contention is that the trial court was wrong in giving credence to the testimonies of
the prosecution's witnesses. According to him, he was not positively identified by the said witnesses.
However, this Court finds otherwise.

The following are the testimonies of the witnesses for the prosecution which clearly show that the
appellant was categorically identified as one of the men who took part in the perpetration of the
crime:

Testimony of Evelyn Parcasio:

Q Now, in that evening of February 3, 1997, was there any unusual incident that happened
in your house?

A At more or less 7:30, three (3) persons entered our house. The two (2) of them I do not
know, only one (1) I know.

Q Who is that one (1) you know?

A Yes, sir.
Q Can you go down and pinpoint him?

A Witness taps the shoulder of a person who, when asked his name, he answered that
he is Nonoy Ebet.

Q How do you know him to be Nonoy Ebet?

A He is always in our house. He is always eating with my husband in our house.

Q You said these three (3) entered your house?

A Yes, sir.

Q What happened after that?

A Upon entering the house, he poked a gun on me and one of them pointed a knife to my
daughter Joan.

Q What about this Nonoy Ebet?

A Nonoy Ebet was standing in front of the door of my house holding the knife. 15

Testimony of Joan Parcasio:

Q Now, on that evening at around 7:00 o'clock of February 3, 1997, can you recall whether
there was an unusual incident that happened?

A Yes, sir.

Q Can you recall what was that unusual incident that happened?

A We were robbed and my father was killed.

Q What is the name of your father?

A Gabriel Parcasio, Jr.

Q You said you were held up, how many persons robbed you?

A Three (3) persons.

Q Were you able to identify them?

A Only one perpetrator I know.

Q You said you were able to identify one of the perpetrators, if this one which you were able
to identify is inside this courtroom, please point at him?

A Witness tapped the shoulder of a person with a stripe polo shirt and who, when
asked his name, answered Nonoy Ebet.
Q This Nonoy Ebet is one of those who robbed you and likewise killed your father?

A Yes, sir.

Q What was the weapon used in killing your father?

A Hunting knife. 16

According to appellant, the testimony of Joan Parcasio during the trial was contrary to her
earlier statement with the police authorities of Kidapawan City, Cotabato. The police
blotter17 contains the following:

Entry/Date/Time

15-02/03-97/2000H

-JOAN PARCASIO, 18 years old, student resident of Barangay Upper Manongol,

Kidapawan, Cotabato reported this station and requested to put on record, that they were
allegedly and forcibly entered by three unidentified men while the one is wearing mask and
declared hold-up. His father GABRIEL PARCASIO, 44 years old, a farmer attempted to
resist, but the assailant shot him once, by an undetermined type of hand-gun and stabbed
him for several times, hitting the different parts of his body. The neighbor of the victim, wife
and child, brought him to Kidapawan Medical Specialist, but he was expired upon arrival at
the said hospital. Money carting them away by the perpetrators amounting to ₱30.00
Philippine currency and one wrist watch amounting to ₱1,000.00. Incident happened at
about 7:00 p.m., February 3, 1997. Case referred to investigation section for proper
disposition.

Appellant points out that the above contents of the police blotter are corroborated by the
testimony of his own witness, Virgilio Balili, who narrated that right after the commission of
the crime, he was approached by Evelyn, Jean and Joan Parcasio. When Balili asked if they
knew the identities of the perpetrators, Evelyn, Jean and Joan answered in the negative,
thus:

Q When Evelyn, Jean and Joan Parcasio approached you, what did you do?

A I asked them if they were able to identify the perpetrators.

Q And what did they tell you?

A They answered me that they did not know the assailant.18

xxxx

Q You said on the way you had a conversation with Evelyn, Jean and Joan Parcasio, please
tell us what the content of your conversation? What was the subject matter of your
conversation?

A I asked them to tell the truth so that we could help them.

Q So what was the answer?

 A They answered, "What could we do because we were not able to identify those people?"19

The above argument of appellant deserves scant consideration. The incomplete entry in the police
blotter must not overcome the positive and categorical identification of appellant as one of the
perpetrators. As correctly pointed out by the OSG:

The entry in the police blotter was incomplete. In fact, as stated therein, the case was referred to the
investigation section for proper disposition. It must be noted that Item No. 2 was entered at 2000
hours or 8 in the evening or about thirty (30) minutes after the incident. The culprits, including the
appellant, were still on the loose. This explains the reason why Joan, still distraught over the sudden
and unexpected death of her father, hesitated to divulge the identity of appellant as one of the
perpetrators of the gory killing of her father.20

In People v. Sabadao,21 the appellants therein faulted two (2) prosecution witnesses for, either giving
incomplete statements or not giving any statement to the police authorities. However, this Court was
not persuaded and ruled that:

x x x It is a matter of judicial experience that an affidavit, being taken ex parte, is almost always
incomplete and often inaccurate. To be sure, a sworn statement taken ex parte is generally
considered to be inferior to a testimony given in open court as the latter is subject to the test of cross
examination.22

Notwithstanding the entry in the police blotter, Evelyn and Joan Parcasio, on the day after the crime
was committed, executed their respective sworn statements, positively identifying the appellant as
one of the culprits. Thus:

Evelyn Parcasio's Sworn Statement:

02. Q – Why are you here in the Office of the Investigation Section?

A – To file a formal complaint against the persons who robbed us and killed my husband.

03. Q – What is the name of your husband who was killed by the robbers?

A – Gabriel Parcasio Jr., sir.

04. Q – When and where did this incident happen?

A. - It happened on February 3, 1997 at about 7:00 o'clock in the evening inside our
residence at Brgy. Upper Manongol, Kidapawan, Cotabato.

05. Q – You mentioned that you were held-up? How many are they?

A – They were three (3) of them.

06. Q – Can you recognize or identify them?

A – I could only identify one of them in the person of alias NONOY EBET.

xxxx
 16. Q – You mentioned that you could only identify one of the perpetrators as one alias
Nonoy Ebet. How come that you were able to identify him?

A - Because he is always at our house conversing with my husband and sometimes eat with
us.23

Joan Parcasio's sworn statement:

02. Q – Why are you here in the Office of the Investigation Section?

A – To give my voluntary statement in connection to the complaint of my mother Evelyn

Parcasio to persons of alias NONOY EBET and his two other companions which I could not
identify.

03. Q – What is the complaint of your mother against these persons?

A – For robbing us and killing my father Gabriel Parcasio, Jr.

xxxx

19. Q – You mentioned in your statement that you were able to identify one of the
perpetrators as one NONOY EBET. How were you able to identify him?

A – Because while one of his companions was holding me at the point of a knife, I saw Alias
Nonoy Ebet standing in front of our door.

20. Q – How far was he from you?

A – More or less one meter.

21. Q – Was there light at the house during that time?

A – Yes, sir.

22. Q – Do you know the person of Alias Nonoy Ebet?

A – Yes, sir. He used to go to the house and talk with my father and sometimes we served
coffee to him as merienda.24

Clearly, it is only the incomplete police blotter that appears to be inconsistent. However, the said
inconsistency has been cured by the sworn statements and the testimonies given in open court. With
that in perspective, this Court, therefore, has no reason to dispute the trial court's appreciation of the
credibility of the prosecution witnesses' testimonies. Deeply entrenched in our jurisprudence is the
rule that the assessment of the credibility of witnesses is a domain best left to the trial court judge,
because of his unique opportunity to observe their deportment and demeanor on the witness stand;
a vantage point denied appellate courts - and when his findings have been affirmed by the Court of
Appeals, these are generally binding and conclusive upon this Court.25
Appellant further reasons out that, if it were indeed him who was seen standing near or in front of the
Parcasio family's door, that fact alone cannot be the basis to consider him as one of the perpetrators
of the crime. However, the said argument is inconsequential. 1avvphi1

When a homicide takes place by reason of or on the occasion of the robbery, all those who took part
shall be guilty of the special complex crime of robbery with homicide whether they actually
participated in the killing, unless there is proof that there was an endeavor to prevent the
killing.26 The records are bereft of any evidence to prove, or even remotely suggest, that appellant
attempted to prevent the killing. Therefore, the basic principle in conspiracy that the "act of one is the
act of all," applies in this case. To be a conspirator, one need not participate in every detail of the
execution; he need not even take part in every act or need not even know the exact part to be
performed by the others in the execution of the conspiracy. Each conspirator may be assigned
separate and different tasks which may appear unrelated to one another but, in fact, constitute a
whole collective effort to achieve their common criminal objective.27 Once conspiracy is shown, the
act of one is the act of all the conspirators. The precise extent or modality of participation of each of
them becomes secondary,28 since all the conspirators are principals. To exempt himself from criminal
liability, a conspirator must have performed an overt act to dissociate or detach himself from the
conspiracy to commit the felony and prevent the commission thereof.29

As to the failure of the trial court in finding merit to the defense of denial and alibi presented by
appellant, this Court is in complete agreement.

Appellant claims that he was butchering a pig at the house of Agri Saud located at Barangay Perez,
Kidapawan City from 5:00 p.m. until 9:00 p.m. of February 3, 1997. The said alibi has been
supported by the testimonies of two witnesses. However, appellant failed to prove that it was
impossible for him to be physically present at the place where the crime had taken place and when
the crime was being committed. For alibi to prosper, it must strictly meet the requirements of time
and place. It is not enough to prove that the accused was somewhere else when the crime was
committed, but it must also be demonstrated that it was physically impossible for him to have been
at the crime scene at the time the crime was committed.30

This Court has always upheld that alibi and denial are inherently weak defenses and must be
brushed aside when the prosecution has sufficiently

and positively ascertained the identity of the accused. And it is only axiomatic that positive testimony
prevails over negative testimony.31

WHEREFORE, the appeal is hereby DENIED and the Decision dated July 31, 2007 of the Court of
Appeals, in CA-G.R. CR-H.C. No. 00257, which sustained with modification, the judgment of the
Regional Trial Court finding appellant Nonoy Ebet guilty beyond reasonable doubt of the crime of
Robbery with Homicide, is hereby AFFIRMED.

G.R. No. 228000, July 10, 2019

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, v. RONALD PALEMA Y

VARGAS, RUFEL PALMEA Y BAUTISTA, LYNDON SALDUA Y QUEZON, AND
VIRGO GRENGIA, ACCUSED-APPELLANTS.

DECISION

LEONEN, J.:
In the prosecution of robbery with homicide, the State must prove that the offender's
original intent was to commit the crime of robbery. The killing of the victim must only
be incidental. Nevertheless, the act of taking the victim's life may occur before, during,
or even after the robbery. So long as the homicide was committed by reason of or on
the occasion of the robbery, the offense committed is the special complex crime of
robbery with homicide.1

For this Court's resolution is a Notice of Appeal 2 challenging the May 18, 2016
Decision3 of the Court of Appeals in CA-G.R. CR HC No. 06250. The Court of Appeals
affirmed the Regional Trial Court's April 15, 2013 Decision 4 convicting Ronald Palema y
Vargas (Palema), Rufel Palmea y Bautista (Palmea), Lyndon Saldua y Quezon (Saldua),
and Virgo Grengia (Grengia) of the crime of robbery with homicide.

Palema, Palmea, Saldua, Grengia, along with Lester Ladra y Palema (Ladra), Edwin
Manzanero y Bautista (Manzanero), and Marvin Marqueses (Marqueses), were charged
with the crime of robbery with homicide in an Information 5 dated November 26, 2007,
which read: cralawred

That on or about 11:05 p.m. of 10 November 2007, at the Calamba Town Plaza at Brgy.
6, Calamba City and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating, and with the accused minor Lester Ladra y
Palema acting with discernment, with intent to gain, by means [of] violence against and
intimidation of persons, did then and there willfully, unlawfully and feloniously take and
steal the Nokia N70 cellular phone worth Php 13,000.00 of Enicasio Depante y Rosales
against the consent of the said Enicasio Depante y Rosales and on the occasion and by
reason of the robbery, with intent to kill, abuse of superior strength [and] cruelty, did
then and there willfully and feloniously assault, maul and stab to death Enicasio
Depante y Rosales the damage and prejudice of the heirs of the said victim.

Contrary to law.6
chanRoblesvirtualLaw1ibrary

On arraignment, Ladra, Saldua, Palema, Palmea, Manzanero, and Grengia pleaded not
guilty to the crime charged. Marvin, meanwhile, remained at large. 7

After pre-trial, trial on the merits ensued. 8

The evidence for the prosecution revealed that at around 11:00 p.m. on November 10,
2007, Enicasio Depante (Enicasio), his common-law spouse, his son Erickson Depante
(Erickson), and his stepdaughter Jamie Rose Baya (Jamie) were sitting on the benches
at the Calamba Town Plaza. That was when three (3) men, who were later identified as
Palema, Palmea, and Manzanero, approached Enicasio.9

Suddenly, Palmea threw a punch at Enicasio in an attempt to grab his phone. Palema
simultaneously pulled out a knife and tried to stab him in the abdomen, but was warded
off by Jamie, making him drop his knife. Once he retrieved his knife, Palema stabbed
Enicasio on the right thigh, causing him to fall on the ground. Then, Grengia and Saldua
arrived at the scene and joined in beating Enicasio.10
Seated on the bench near Enicasio, Erickson stood and tried to help his father, but
Ladra stopped him. When he resisted, Ladra attempted to stab him, but he was able to
evade the attack and immediately look for a weapon. Upon reaching his father,
however, he saw that Enicasio had already collapsed from the stab wounds. Erickson
brought his father to the Calamba Medical Center, but he later died from blood loss. 11

Enicasio's family testified that they incurred medical expenses in the amount of
P20,000.00, although they were only able to keep P3,751.00 worth of receipts. 12 They,
likewise, testified that they had incurred funeral expenses worth P120,000.00, as
evidenced by a receipt13 they submitted.14

During the case's pendency, Manzanero died as shown in his Death Certificate. 15 Thus,
the Regional Trial Court dismissed the case against him. 16

Meanwhile, Saldua, Palema, Palmea, and Grengia denied the accusations against them.
They insisted that while all of them were at the Plaza during the incident, they were not
there as a group, but with different people. They maintained that the police officers
mistook them for the men who attacked Enicasio.17

Ladra, for his part, changed his plea to guilty after the prosecution had presented its
evidence. The Regional Trial Court then directed him to take the witness stand to
answer some clarificatory questions.18

Ladra testified that he was with Palema, Palmea, Saldua, Marqueses, and Manzanero at
the night of the incident. All of them drunk, they decided to eat gruel at the Plaza.
Later, Palema's girlfriend approached them and complained that a man in a red shirt
had acted indecently toward her.19 Believing that the man was Enicasio, the group
attacked and mugged him. When he saw Enicasio fighting back, he took Marqueses'
knife and stabbed Enicasio twice.20

Ladra added that Grengia was not with them and did not participate in the attack. 21

In its March 6, 2012 Decision,22 the Regional Trial Court found Ladra guilty beyond
reasonable doubt: cralawred

WHEREFORE, the Court finds the accused minor LESTER LADRA GUILTY of "Robbery
with Homicide" and in consideration with the privileged mitigating circumstance of
minority and voluntary plea of GUILTY, sentenced (sic) him to the penalty of Eight (8)
Years and One (1) day of Prision Mayor, as Minimum to Fourteen (14) Years, Eight (8)
months and One (1) [day] of Reclusion Temporal, as Maximum and ordered (sic) to pay
the heirs of the victim the following sums of money: cralawred

1. Fifty Thousand Pesos (P50,000.00) for civil indemnity;

2. Fifty Thousand Pesos (P50,000.00) for moral damages; and,
3. Fifty Thousand Pesos (P50,000.00) for exemplary damages.

In accordance with the provisions of the Juvenile Justice and Welfare Act of 2006 (R. A.
No. 9344) and jurisprudence thereto, the service of sentence is suspended and the
accused is remanded to the custody of The National Training School for Boys (NTSB) for
proper disposition. The NTSB has thirty (30) days from receipt of this Decision to
comply with the post sentenced procedure of the law and submit to this Court their
recommendation for disposition.

SO ORDERED.23
chanRoblesvirtualLaw1ibrary

In its March 31, 2012 Progress Report, 24 the National Training School for Boys
recommended to the trial court that the case against Ladra be dismissed and that he be
discharged to his parents.25

On March 5, 2013, the Regional Trial Court granted the National Training School for
Boys' recommendation and ordered that the case against Ladra be dismissed. Similarly,
it ordered that Ladra be discharged to his parents' custody. 26

On April 15, 2013, the Regional Trial Court rendered another Decision, 27 convicting
Palema, Palmea, Saldua, and Grengia of the crime of robbery with homicide. The
dispositive portion of the Decision read:cralawred

WHEREFORE, the Court finds the accused Ronald Palema, Rufel Palmea, Lyndon Saldua,
and Virgo Grengia guilty beyond reasonable doubt of the crime of Robbery with
Homicide and sentenced (sic) to suffer the penalty of Reclusion Perpetua in view of the
absence of any mitigating or aggravating circumstance.

Accused Ronald Palema, Rufel Palmea, Lyndon Saldua, and Virgo Grengia are also
ordered to pay the heirs of the victim, the following:cralawred

(a) P3,000.00 as hospital expenses;

(b) P120,000.00 for funeral expenses;
(c) P75,000.00 as moral damages[.]

The Court hereby acquits Marvin Marqueses of the crime charged.

SO ORDERED.28
chanRoblesvirtualLaw1ibrary

The Regional Trial Court found that the four (4) men conspired in committing the crime
charged. It brushed aside their defense of denial and decreed that they failed to offer
any evidence showing that they performed an overt act that would have prevented the
assault from happening.29

The Regional Trial Court acquitted Marqueses for the prosecution's failure to present
evidence that he participated in committing the crime.30

On appeal,31 Saldua, Palema, Palmea, and Grengia argued that the Regional Trial Court
erred in giving credence to the prosecution witnesses' testimonies. They maintained
that while Jamie testified that her stepfather was stabbed in the right thigh, 32 the post-
mortem examination revealed that the sole stab wound sustained by the victim was on
the right side of his buttocks.33 They also questioned Erickson's ability to testify,
alleging that he was not fully focused on the incident since he was texting before the
crime happened.34

Moreover, assuming that the prosecution sufficiently identified the assailants, the men
contended that it still failed to establish the existence of conspiracy in committing the
offense. They insisted that while they allegedly attacked the victim, there was no
community of interest among them.35

In its assailed May 18, 2016 Decision, 36 the Court of Appeals dismissed the group's
appeal and affirmed the Regional Trial Court Decision. It ruled that the trial court's
appreciation of the witnesses' credibility is entitled to great respect and would not be
disturbed on appeal absent any showing that it overlooked the material facts that could
have affected the results of the case.37

The Court of Appeals further declared that while Erickson was using his phone when the
incident occurred, this did not affect the value of his testimony. It noted that since he
was seated near Enicasio at the time of the assault, it was impossible for him not to
witness the events that transpired.38

The Court of Appeals dispelled the group's claim that there was no conspiracy, ruling
that the prosecution has proved that the men acted in unison in committing the
offense. It further noted that in his confession, Ladra himself admitted the existence of
conspiracy.39

Aggrieved, the group filed a Notice of Appeal,40 which the Court of Appeals gave due
course in its June 15, 2016 Resolution. 41

In its January 11, 2017 Resolution,42 this Court required the parties to file their
supplemental briefs. However, both accused-appellants 43 and plaintiff-appellee People
of the Philippines,44 through the Office of the Solicitor General, manifested that they
would no longer file a supplemental brief and instead adopt all the arguments they
raised in their Briefs filed before the Court of Appeals.

The issues to be resolved here are: cralawred

First, whether or not the Court of Appeals erred in affirming the conviction of accused-
appellants Ronald Palema y Vargas, Rufel Palmea y Bautista, Lyndon Saldua y Quezon,
and Virgo Grengia for the crime of robbery with homicide; and

Second, whether or not the acquittal of accused Marvin Marqueses is proper.

Robbery with homicide is a special complex crime punished under Article 294 of the
Revised Penal Code. It is perpetrated when, by reason or on the occasion of robbery,
homicide is committed.45 Article 294(1) states: cralawred
ARTICLE 294. Robbery with Violence Against or Intimidation of Persons — Penalties. —
Any person guilty of robbery with the use of violence against or intimidation of any
person shall suffer:
cralawred

1. The penalty of reclusión perpetua to death, when by reason or on occasion of the

robbery, the crime of homicide shall have been committed.

To hold a person liable for this crime, the prosecution must establish the following
elements with proof beyond reasonable doubt: cralawred

(1) the taking of personal property with violence or intimidation against persons; (2)
the property taken belongs to another; (3) the taking was done with animo lucrandi;
and (4) on the occasion of the robbery or by reason thereof, homicide was
committed.46 (Citation omitted)

Nevertheless, it must be stressed that in robbery with homicide, the offender's original
intent must be the commission of robbery. The killing is merely incidental and
subsidiary.47 However, when the offender's "original criminal design does not clearly
comprehend robbery, but robbery follows the homicide as an afterthought or as a minor
incident of the homicide, the criminal acts should be viewed as constitutive of two
offenses and not of a single complex offense."48

In People v. De Jesus,49 this Court had the opportunity to comprehensively discuss the

nature of the crime of robbery with homicide: cralawred

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

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

Intent to rob is an internal act but may be inferred from proof of violent unlawful taking
of personal property. When the fact of asportation has been established beyond
reasonable doubt, conviction of the accused is justified even if the property subject of
the robbery is not presented in court. After all, the property stolen may have been
abandoned or thrown away and destroyed by the robber or recovered by the owner.
The prosecution is not burdened to prove the actual value of the property stolen or
amount stolen from the victim. Whether the robber knew the actual amount in the
possession of the victim is of no moment because the motive for robbery can exist
regardless of the exact amount or value involved.

When homicide is committed by reason or on the occasion of robbery, all those who
took part as principals in the robbery would also be held liable as principals of the
single and indivisible felony of robbery with homicide although they did not actually
take part in the killing, unless it clearly appears that they endeavored to prevent the
same.

If a robber tries to prevent the commission of homicide after the commission of the
robbery, he is guilty only of robbery and not of robbery . with homicide. All those who
conspire to commit robbery with homicide are guilty as principals of such crime,
although not all profited and gained from the robbery. One who joins a criminal
conspiracy adopts the criminal designs of his co-conspirators and can no longer
repudiate the conspiracy once it has materialized. 50 (Emphasis supplied, citations
omitted)

In convicting accused-appellants, the Regional Trial Court gave credence to the

testimonies of the prosecution witnesses, who recounted that the accused men were
the ones who had simultaneously assaulted Enicasio. Based on their testimonies,
Manzanero and accused-appellants Palema and Palmea all approached Enicasio and
took his cellphone. When Enicasio tried to fight back, Palema stabbed him, causing him
to fall. Immediately after, the other accused joined the fray and beat Enicasio. 51

It is clear that accused-appellants' primary objective was to rob Enicasio. But, by

reason or on the occasion of the robbery, Enicasio was stabbed and died as a result.

Finally, while accused-appellants argued that the Regional Trial Court erred in giving
weight to the prosecution witnesses' testimonies, they failed to present evidence to the
contrary.

Settled is the rule that "the matter of assigning values to declarations on the witness
stand is best and most competently performed by the trial [court] judge," 52 who has
"the unmatched opportunity to observe the witnesses and to assess their credibility by
the various indicia available but not reflected on the record." 53 As such, this Court gives
great weight and respect to the judge's assessment of the witnesses' credibility. 54

II

Insisting on their innocence, accused-appellants argue that the prosecution failed to

prove that they conspired in committing the crime charged. 55 They insist that while they
acted simultaneously, the prosecution failed to show that there was a unity of purpose
among them.56

Accused-appellants' argument deserves scant consideration.

Article 8 of the Revised Penal Code provides that "conspiracy exists when two or more
persons come to an agreement concerning the commission of a felony and decide to
commit it." Like any other element of a crime, the existence of conspiracy must be
established by proof beyond reasonable doubt. 57

Here, the Court of Appeals correctly affirmed the Regional Trial Court's finding of
conspiracy. It found that accused-appellants' acts were coordinated and complementary
with each other, demonstrating the existence of conspiracy. It ruled that the
prosecution was able to establish that accused-appellants came in two (2) groups. The
first group—accused-appellants Palema and Palmea, along with Manzanero—attacked
Enicasio and took his cellphone. The second group—accused-appellants Grengia and
Saldua, along with Ladra—joined the fray when they saw Enicasio fighting back. 58

Notably, while accused-appellants denied participating in the crime, they all admitted
that they were at the Calamba Town Plaza during the incident. Moreover, their claim
that they did not come as a group, but were with other people, remains a bare
allegation after they failed to present the testimonies of the individuals who were
supposedly with them that night.

As the Regional Trial Court correctly ruled: cralawred

Granting that they were merely present during the robbery, his inaction does not
exculpate him. To exempt himself from criminal liability, a conspirator must have
performed an overt act to dissociate or detach himself from the conspiracy to commit
the felony and prevent the commission thereof. Accused offered no evidence that they
performed an overt act neither to escape from the company of the assailants or to
prevent the assault from taking place. Their denial, therefore, is of no value. Courts
generally view the defenses of denial and alibi with disfavor on account of the facility
with which an accused can concoct them to suit his defense. As both evidence are
negative and self-serving, they cannot attain more credibility than the testimonies of
prosecution witnesses who testify clearly, providing thereby positive evidence on the
various aspects of the crime committed. 59 (Citations omitted)

III

It is a basic principle in criminal law that a notice of appeal throws the entire case open
for review. Once an appeal is accepted by this Court, it will have "the authority to
review matters not specifically raised or assigned as errors by the parties, if their
consideration is necessary in arriving at a just resolution of the case." 60 In Ramos v.
People:61

At the outset, it must be stressed that an appeal in criminal cases opens the entire case
for review and it is the duty of the reviewing tribunal to correct, cite, and appreciate
errors in the appealed judgment whether they are assigned or unassigned. "The appeal
confers the appellate court full jurisdiction over the case and renders such court
competent to examine records, revise the judgment appealed from, increase the
penalty, and cite the proper provision of the penal law." 62 (Citations omitted)

Here, the Regional Trial Court acquitted Marqueses after having found no evidence of
his participation in the crime charged. 63 However, a perusal of the records shows that
Marqueses was never arraigned. While the Regional Trial Court, in its January 8, 2008
Order,64 noted that all the accused were present on arraignment and that they all
pleaded not guilty to the crime charged, only the names of accused-appellants Palema,
Palmea, Saldua, and Grengia, as with Ladra and Manzanero, were shown in the
Certificate of Arraignment. 65 Marqueses' name is nowhere to be found.

Even during the January 17, 2008 pre-trial, Marqueses was absent. 66

It bears noting that Marqueses was never arrested and remained at large. On March 12,
2008, the Warrant of Arrest67 issued against him was returned to the trial court as he
could not be located at the given address despite effort exerted. 68

Arraignment is defined as "the formal mode and manner of implementing the

constitutional right of an accused to be informed of the nature and cause of the
accusation against him."69 Its purpose is to notify the accused of "the reason for his
indictment, the specific charges he is bound to face, and the corresponding penalty that
could be possibly meted against him."70 It is not an idle ceremony that can be brushed
aside peremptorily, but an indispensable requirement of due process, the absence of
which renders the proceedings against the accused void.71

In Borja v. Mendoza,72 this Court stressed that an arraignment not only satisfies the
due process clause of the Constitution, but also affords an accused an opportunity to
know the precise charge that confronts him or her. Through arraignment, the accused
is placed in a position to enter his or her plea with full knowledge of the
consequences.73 It is a vital aspect of any criminal prosecution, demanded by no less
than the Constitution itself.

In People v. Verra,74 this Court held that "just as an accused is accorded this

constitutional protection, so is the State entitled to due process in criminal
prosecutions. It must similarly be given the chance to present its evidence in support of
a charge."75

There is no proof of Marqueses' arraignment here. After the Warrant of Arrest issued
against him was returned, his name appeared again only in the Regional Trial Court's
April 1, 2013 Order.76 There, the Regional Trial Court did not state if he was belatedly
arraigned or if he made a voluntary appearance. It merely granted the prosecution's
Motion to correct the names of Saldua and Palmea.

Without evidence of Marqueses' arraignment, the Regional Trial Court had no authority
to order his acquittal. All proceedings against him before the Regional Trial Court are
deemed void.

Finally, in line with current jurisprudence,77 this Court deems it proper to impose

exemplary damages and civil indemnity, both in the amount of P75,000.00.

WHEREFORE, the appeal is DISMISSED. The May 18, 2016 Decision of the Court of
Appeals in CA-G.R. CR HC No. 06250 is AFFIRMED with MODIFICATIONS. The
acquittal of accused Marvin Marqueses is deemed VACATED.
Accused-appellants Ronald Palema y Vargas, Rufel Palmea y Bautista, Lyndon Saldua y
Quezon, and Virgo Grengia are found GUILTY beyond reasonable doubt of robbery with
homicide punished under Article 294 of the Revised Penal Code. They are sentenced to
suffer the penalty of reclusion perpetua. They are also DIRECTED to pay the heirs of
the victim, Enicasio Depante y Rosales, the amounts of: (1) Seventy-Five Thousand
Pesos (P75,000.00) as moral damages; (2) Seventy-Five Thousand Pesos (P75,000.00)
as civil indemnity; (3) Seventy-Five Thousand Pesos (P75,000.00) as exemplary
damages; (4) Three Thousand Seven Hundred Fifty-One Pesos (P3,751.00) as hospital
expenses; and (5) One Hundred Twenty Thousand Pesos (P120,000.00) as funeral
expenses.

All damages awarded shall be subject to interest at the rate of six percent (6%) per
annum from the finality of this Decision until full satisfaction. 78

SO ORDERED.

G.R. No. 228951, July 17, 2019

THE PEOPLE OF THE PHILIPPINES PLAINTIFF-APPELLEE, v. JAY GODOY

MANCAO, ACCUSED-APPELLANT.

DECISION

LAZARO-JAVIER, J.:

The Case

This appeal assails the Decision1 dated September 27, 2016 of the Court of Appeals in
CA-G.R. CR-HC No. 01258-MIN affirming with modification the trial court's verdict of
conviction against appellant for robbery with homicide.

The Proceedings Before the Trial Court

The Charge

Appellant Jay Godoy Mancao was charged with robbery with homicide under the
following Information, viz:

That on or about September 2, 2007, in the City of Davao, Philippines, and within the
jurisdiction of this Honorable Court, the above-mentioned accused, with intent to gain
and to kill, armed with bladed weapons, with force and violence, willfully, unlawfully
and feloniously grabbed the neck and dragged Peter Ray Garcia Enriquez who was then
seventeen (17) years old, and then took away the latter's Nokia 6630 cellular phone,
silver bracelet, necklace, wallet containing cash of undetermined amount. Without the
said victim's consent and on occasion of the said robbery stabbed the aforementioned
victim, thereby inflicting upon him fatal wounds which caused his death, to the damage
and prejudice of the said victim's legal heirs.

CONTRARY TO LAW.
The case was raffled to the Regional Trial Court-Branch 8, Davao City.

On arraignment, appellant pleaded "not guilty". 2 Trial followed. Manuel Bernido, Jr.,
Pedro Enriquez and SPO2 Kelvin Magno testified for the prosecution. On the other hand,
appellant was the lone witness for the defense.

Evidence for the Prosecution

Manuel Bernido, Jr. testified that on September 2, 2007, around 3:30 in the morning,
he was in front of Toto's Eatery along Quirino Avenue, Davao City. About ten meters
away, he saw Peter Enriquez texting while waiting for a jeepney ride. Appellant
suddenly approached Enriquez from behind and stabbed the latter in the
neck.3 Appellant then dragged the victim toward an alley in Barangay 9. Shocked by
what he saw, he ran home.4

Later, he saw appellant pass his house, running. Then, appellant passed his house
again, this time carrying a dipper with water. He used the water to wash away blood
stains off the crime scene and the alley where he dragged the lifeless body of his
victim.5

He called appellant and asked why he was not wearing slippers and why he was
covered with blood.6 Appellant responded he came from the Bankerohan Public
Market.7 Few hours later, he saw appellant's brother Wangyu Mancao flag down a
taxicab and board the same together with appellant. 8

SPO2 Kelvin Magno testified that on September 3, 2007, around 6 o'clock in the

morning, the San Pedro Police Station received a report that a dead body was found in
Barangay 9. He and SPO2 Nelson Galban proceeded to the area to investigate. There,
they found the lifeless body of Enriquez. His cellphone, silver necklace, silver bracelet,
and wallet containing cash were missing. 9

They followed a trail of blood near the body which led to the boarding house of the
Mancao brothers. After asking around, they went to the eatery where Wangyu
worked.10 Wangyu was there. Upon seeing the police officers, he cried and confessed
that appellant was involved in the robbery and that he assisted his brother in fleeing to
Maco, Davao del Norte.11

The next day, SPO2 Magno and other police officers proceeded to Maco in search for
appellant.12 When they finally found him, he tried to escape but they were able to
capture and arrest him.13 They found in his possession a silver necklace and a pair of
blood-stained pants.14

Pedro Enriquez, the victim's father, identified the necklace in open court. He

recognized it because it was his gift to his son. He remembered the pendant bearing
the letter "T".15

Evidence for the Defense

Appellant denied the charge. He averred that he had been in Barangay Libay-libay,
Compostela Valley since September 1, 2007 to tend the land of his mother. On
September 4, 2007, more than ten people arrested him without a warrant. He was
brought to the police station where he was forced to wear a silver necklace. He
discovered later on that he was already being charged with murder for the death of
victim Peter Enriquez.

The Trial Court's Ruling

By Decision  dated September 19, 2013,16 the trial court rendered a verdict of

conviction, thus:

FOR THE FOREGOING, finding accused Jay Godoy Mancao GUILTY beyond reasonable
doubt of the crime of Robbery with Homicide, he is hereby sentenced to suffer the
penalty of RECLUSION PERPETUA. He is, likewise, directed to pay moral damages in
the amount of P50,000.00; civil indemnity, likewise in the amount of P50,000.00 and
actual damages in the amount of P22, 800.00.17

SO ORDERED.

It found that even in the absence of eyewitnesses to the actual taking of victim's
personal belongings, the crime of robbery with homicide was nonetheless established
by circumstantial evidence. The testimonies of the prosecution witnesses constituted an
unbroken chain which proved that appellant, with intent to gain, took the victim's
personal property and by reason of the robbery, killed such hapless victim.

The Proceedings Before the Court of Appeals

On appeal, appellant faulted the trial court for finding him guilty of robbery with
homicide despite the alleged incredible and inconsistent testimonies of the prosecution
witnesses; the purported fact that he was not positively identified as the perpetrator of
the crime; and the supposed insufficiency of the circumstantial evidence to support a
verdict of conviction.18

On the other hand, the Office of the Solicitor General (OSG) through Solicitor General
Jose C. Calida, Assistant Solicitor Renan E. Ramos, Senior State Solicitor James Lee
Cundangan and State Solicitor Ma. Teresa Ana V. Bermejo riposted that the elements of
the crime were all proven through the direct and straightforward account of the
prosecution witnesses; prosecution witness Bernido, Jr. positively identified appellant;
there was no showing of ill-motive on the part of the prosecution witnesses to falsely
testify against him; and appellant's defense of alibi was inherently weak. 19

The Court of Appeals' Ruling

In its assailed Decision20 dated September 27, 2016, the Court of Appeals affirmed with
modification as to the amount of damages, viz:
WHEREFORE, the instant appeal is DENIED. The Decision of Branch 8, Regional Trial
Court, Davao City, is AFFIRMED but modified with respect to the award of Moral
Damages and Civil Indemnity which are hereby increased to P75,000.00 each. The
damages awarded shall earn an interest of 6% per annum from finality of judgment
until fully paid.

SO ORDERED.

The Present Appeal

Appellant now seeks affirmative relief from the Court and prays anew for his acquittal.
In compliance with Resolution21 dated February 27, 2017, both the OSG and appellant
manifested22 that, in lieu of supplemental briefs, they were adopting their respective
briefs before the Court of Appeals.

Issue

Did the Court of Appeals err in affirming appellant's conviction for robbery with
homicide?

Ruling

The appeal utterly lacks merit.

Robbery with homicide is defined and penalized under Article 294(1) of the Revised
Penal Code, viz:

Article 294. Robbery with violence against or intimidation of persons; Penalties. - Any

person guilty of robbery with the use of violence against or intimidation of any person
shall suffer:

1. The penalty of reclusion perpetua to death, when by reason or on

occasion of the robbery, the crime of homicide shall have been
committed.

xxxx

It requires the following elements: (1) taking of personal property is committed with
violence or intimidation against persons; (2) the property taken belongs to another; (3)
the taking is with animo lucrandi;  and (4) by reason of the robbery, or on the occasion
thereof, homicide is committed.23 A conviction for robbery with homicide requires
certitude that the robbery is the main purpose and objective of the malefactor, and the
killing is merely incidental to the robbery. The intent to rob must precede the taking of
human life but the killing may occur before, during or after the robbery. 24
Taking of personal
property established
through circumstantial
evidence

Here, there was no eyewitnesses to the actual taking of the victim's personal property.
Prosecution, nevertheless, proved appellant's guilt through circumstantial evidence.

Normally, the Court bases its findings of guilt on direct evidence of the commission of a
crime.25 But the lack or absence of direct evidence does not necessarily mean that the
guilt of the accused can no longer be proved because circumstantial evidence, if
sufficient, can supplant the absence of direct evidence. 26

Thus, in People v. Beriber, the Court convicted the accused even though no direct
testimony was presented by the prosecution to prove that the accused is guilty of
robbery with homicide since the incriminating circumstances, when taken together,
constitute an unbroken chain of events enough to arrive at the conclusion that
appellant was responsible for the killing and robbing the victim. 27

For circumstantial evidence to be sufficient for conviction, there must be more than one
circumstance; the facts from which the inferences are derived are proven and the
combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt.28

Here, the first two elements of robbery with homicide were established through
circumstantial evidence. SPO2 Magno testified that the object of the crime was found in
appellant's possession at the time of his arrest, thus:

Pros. Sencio: In paragraph 8 of your affidavit, you said that you and the Maco Police
immediately went to the said place and upon reaching there, it was positive that the
suspect stayed at the house and recovered from him was a silver necklace owned by
the victim as well as xxx. I am showing to you this necklace already marked as Exhibit
"C", please go over this and tell us what relation has this necklace to that necklace
which you mentioned in your affidavit?

SPO2 Magno: The same necklace that the accused was wearing.

xxx

SPO2 Magno: The necklace that was presented to me now is the same
necklace that I noticed that he was wearing at the time we arrested him. xxx

xxx

Q: By the way, this person you said that you arrested, is he present in Court?
A: Yes. He is here.

Q: Please point him out.

The witness pointed to the accused.

Pedro Enriquez testified that the necklace appellant was wearing at the time of his
arrest was the same silver necklace he gifted the victim with, viz:

Prosecutor Sencio: And what happened to the items?

A: What was only recovered is the silver necklace with the initial of my son with letter
"T" pendant.

Q: Where is that pendant?

A: The pendant is in the possession or custody of the police.

Q: Why do you know that it belongs to your son?

A: because I gave that necklace to him.

Q: If you will be shown the pendant, will you be able to identify that pendant?
A: Yes.29

xxx

Q: I am showing to you this necklace. What relation does this necklace have to
that necklace which you said belongs to your son?
A: This is the same necklace that I gave to my son.

xxx

Atty. Alonzo: You said that this necklace is with stones. Will you please show to us
where are these stones that you were referring to?

Pros. Sencio: For the record, the witness points to the pendant and there were three
stones on it.

Q: You agree with me Mr. Enriquez, that there are also similar pendants with stones
that are sold in the same store?
A: The necklaces that had a letter "P" (sic) in the place where I bought this for my son
did not have stones in it except for the one I bought.

Q: You want to tell this Honorable Court that there is only one necklace that was sold in
that place the same with that you have purchased?
A: Yes.30 (emphasis added)

Under Section 3(j), Rule 131 of the Rules of Court, a person found in possession of a
thing taken in the doing of a recent wrongful act is the taker and the doer of the whole
act.31 In the case at bar, appellant failed to justify his possession of the victim's
necklace. Thus the presumption that he stole the same from the victim and that he is
the perpetrator of the crime, stands.

The third element i.e.  animus lucrandi was similarly established by the same
presumption. For intent to gain is an internal act which is presumed from the unlawful
taking by appellant of the thing subject of asportation.32 And since the object of the
crime i.e.  victim's necklace was recovered from appellant, his intent to gain is
presumed.

Homicide committed by
reason of robbery

For the fourth element, eyewitness Manuel Bernido, Jr. testified how appellant slayed
his victim, thus:

Pros. Sencio: What happened next?

A: He stabbed the man.

xxx

Q: Where was he hit?

A: He was hit at his neck.

Q: What happened next?

A: He dragged the man inside Barangay 9.33

xxx

Q: By the way, is the man who stabbed the person, is he in Court?

A: Yes.
Q: Please point him out to the Honorable Court.

Interpreter: the witness pointed to a man inside the Courtroom wearing an orange t-
shirt and faded maong pants who when asked answered by the name Jay Godoy
Mancao.34

xxx

On cross-examination, Bemido, Jr. further testified:

Atty. Alonzo: You want to tell us that the person who crossed that Barangay 9 towards
the person standing immediately approached him and stabbed him, is that what you
mean?

A: Yes, sir.

Q: Are you sure of that?

A: Yes, sir. I'm very sure.35

xxx

Q: What more or less did you report to the police?

A: What I reported to the police that sometime at 3:30 in the morning, I was waiting
for my wife. I saw somebody in Barangay 9 who was stabbed xxx. 36
 xxx

Pros. Sencio: In your cross-examination, you stated that morning after or hours after
the time you saw the stabbing, a dead person was found, that person and the person
you saw stabbed hours before, what is their relation?

A: The same person, the person that I saw being stabbed is the same person that was
found dead after the stabbing.37

xxx

Q: After that, what happened next?

A: He came back bringing with him a small dipper with water in it and he washed the
blood stained (sic) in the alley.

xxx

Q: What happened next?

A: The accused went back to the place of the incident and he continued to wash the
blood stains in the alley.

To bolster Bernido, Jr.'s testimony, SPO2 Magno testified:

Pros. Sencio: Then, what else did you do?

A: We asked bystanders, witnesses, who committed the crime, if anybody witnessed.

Q: So, when you asked those questions, what did you find out?
A: Blood drips from the scene of the crime crossing the street.

xxx

A: We followed the blood stains which were already dry.

Q: Where did the blood stains lead you?

A: It led to a boarding house near the crime scene.

Q: When you arrived at the boarding house, what happened?

A: We knocked at the door but first we sought assistance from the brgy. official who
accompanied us in entering the house, but we found out that nobody was there.

Q: Then what did you do?

A: We asked around the people living near the boarding house and we were informed
that the persons living there are the Mancaos.38

Both the trial court and the Court of Appeals found the testimonies of the prosecution
witnesses to be clear, straightforward and consistent. They gave full credence to
Bernido, Jr.'s eyewitness account of the victim's killing and SPO2 Magno and Pedro
Enriquez's identification of the object of the crime i.e. the victim's necklace found in
appellant's possession. In any event, the courts below ruled that there is no showing
that the witnesses were impelled by any improper motive to falsely testify against
appellant.

Suffice it to state that, in this jurisdiction, the evaluation of the credibility of witnesses
and their testimonies is a matter best undertaken by the trial court because of its
unique opportunity to observe the witnesses firsthand and to note their demeanor,
conduct, and attitude under grueling examination. 39 Hence, the Court defers and
accords finality to the factual findings of trial courts especially when such findings are
undisturbed by the appellate court, as in the case at bar. 40

The fact that the incident happened around 3:30 o'clock in the morning did not preclude
Bernido, Jr. from clearly recognizing appellant as the assailant. Bernido, Jr. was only
about ten meters away when he saw the appellant approach the victim from behind and
stab the latter in the neck.41 Appellant then dragged the victim toward an alley in
Barangay 9. After the incident, appellant passed his house not once but twice. He even
had a short conversation with appellant, asking him why his shirt was stained with
blood. These numerous encounters gave Bernido, Jr. an opportunity to ascertain
appellant's identity. Thus, when he pointed at appellant during trial, there can be no
doubt that he was positively identifying him as the perpetrator of the crime.

In this light, appellant's denial and alibi must fail. We are replete of cases pronouncing
that denial and alibi are inherently weak defenses because they can easily be
fabricated.42 These defenses cannot prevail over the categorical testimonies of the
prosecution witnesses.43 So must it be.

In sum, the inculpatory circumstances on record are: first, eyewitness Manuel Bernido,

Jr. testified that on September 2, 2007, around 3:30 in the morning, he saw the victim
texting on his cellphone while waiting for a jeepney ride. He also saw appellant
stealthily moving from behind toward the victim, appellant then stabbed the victim in
the neck. Thereafter, appellant dragged the victim's body toward an
alley. Second,  SPO2 Kelvin Magno testified that on September 4, 2007, when he and
his team arrested appellant, they were able to recover from appellant's possession the
victim's silver necklace. Lastly, the victim's father Pedro Enriquez confirmed that the
silver necklace that was recovered from appellant was the necklace he gave his son.

These circumstances, taken together, created an unbroken chain of events leading to

no other conclusion than that appellant's primary purpose was to rob the victim and the
killing was merely resorted to in order to gain easy access to the victim's personal
belongings. There was no showing, as none was shown, that the victim and appellant
had known each other before the incident happened or that they had previous conflicts
which would have served as sufficient motive for appellant to end the victim's life. The
only logical conclusion is the killing was committed on the occasion only or by reason of
the robbery.

Penalty

All told, the Court of Appeals did not err in affirming the trial court's verdict of
conviction. Absent any mitigating or aggravating circumstances, the penalty
of reclusion perpetua  was correctly imposed on appellant.
As for the monetary awards, the Court sustains the grant of P75,000.00 as civil
indemnity and P75,000.00 as moral damages. In accordance with prevailing
jurisprudence, the Court further awards P75,000.00 as exemplary damages and
P50,000.00 as temperate damages.44 These amounts shall earn interest of six (6)
percent per annum from finality of judgment until fully paid.

WHEREFORE, the appeal is DENIED. The Decision dated September 27, 2016 of the

Court of Appeals in CA-G.R. CR-HC No. 01258-MIN,
is AFFIRMED with MODIFICATION.

Appellant Jay Godoy Mancao is found guilty of robbery with homicide and sentenced
to reclusion perpetua.  He is ordered to pay P75,000.00 civil indemnity; P75,000.00
moral damages; P75,000.00 as exemplary damages; and P50,000.00 as temperate
damages. These amounts shall earn six (6) percent interest per annum  from finality of
this decision until fully paid.

G.R. No. 228828

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs.
ZZZ, Accused-Appellant

DECISION

LEONEN, J.:

In the absence of direct evidence, a resort to circumstantial evidence is usually necessary in proving
the commission of rape. This is because the crime "is generally unwitnessed and very often only the
victim is left to testify for [him or] herself. It becomes even more difficult when the complex crime of
rape with homicide is committed because the victim could no longer testify." 1

This Court resolves the appeal from the Court of Appeals' February 29, 2016 Decision  in CA-G.R.
2

CR-HC No. 06486. The Court of Appeals affirmed the Regional Trial Court's March 4, 2013
Decision  finding ZZZ guilty beyond reasonable doubt of the crime of rape with homicide.
3

In an October 14, 1996 Information, ZZZ was charged with the crime of rape with homicide.  It read:
4

That on or about the 16th day of May 1996 in the evening, in

████████████████████████████████████████████████████, Philippines and
within the jurisdiction of this Honorable Court, the above named accused, by means of force and
intimidation, did then and there, willfully, unlawfully and feloniously have sexual intercourse with AAA
against her will and consent and on the same occasion the said accused did then and there willfully,
unlawfully and feloniously strike, assault and club the said victim inflicting upon her the following:

- Cracked temporal skull with brains coming out

- Lacerated wound (1/2) inch long below (L) labia

which directly caused her death, to the damage and prejudice of her heirs.  (Citation omitted)
5

ZZZ went at large, but he was later arrested on February 6, 2003. Upon arraignment, ZZZ pleaded
not guilty to the crime charged.
6

The prosecution presented five (5) witnesses: (1) the victim's uncle BBB; (2) Senior Police Officer 3
Jaime Lavarias (SPO3 Lavarias); (3) Dr. Paz Q. Mejia (Dr. Mejia); (4) Dr. Ronald Bandonill (Dr.
Bandonill); and (5) the victim's father CCC.
7

BBB testified that he was the uncle of both AAA and ZZZ. The victim's father, CCC, was his brother,
and ZZZ's mother is his second cousin. ZZZ's mother and AAA's father are relatives, making them
related.
8

BBB testified that at around 7:00p.m. on May 16, 1996, he was on his way to the store to buy
cigarettes when he saw ZZZ dragging AAA by the wrist toward the school. Though it was dark and
he was about 1 0 meters away, he was able to see them using a flashlight he was carrying. Still, he
said he presumed nothing was off, thinking they were relatives. He had merely reprimanded them
before he went on to buy his cigarette and returned home, where he had a drinking spree with his
nephews. 9

The following day, news spread that AAA was missing. With his cousin Josefino Camilet, BBB went
on a search for his niece and informed barangay officials who then helped to look for her. 10

A couple of days later, the barangay officials found a lifeless AAA in a bamboo grove near the
school. BBB said that her niece's naked body had already blackened due to decomposition. On the
same day, he said he found ZZZ in his house-the last time he had ever seen him. 11

SPO3 Lavarias testified that he way AAA was found. When he and his companions went to
███████████, they saw AAA's corpse under the bamboo grove. They came to know the body's
identity through BBB, who also claimed that ZZZ was the person behind the crime. Accompanied by
BBB, the police went to ZZZ's house, but he was nowhere to be found. They proceeded to prepare
an investigation report and requested an autopsy on AAA. 12

In the police officers' Joint Affidavit, SPO3 Lavarias recalled that they went back to the barangay on
May 20, 1996 and found YYY, ZZZ's brother. YYY told them that on the night of the incident, he was
walking home with ZZZ and AAA when his brother told him to go home alone. 13

Dr. Mejia, a municipal health officer in ███████████, testified that she was the physician who
conducted the initial autopsy as requested by the police officers. According to her report, there was a
crack on AAA's temporal skull and a half-inch long laceration below her left labia, while brain matter
leaked above her left ear. The doctor also noted that the body had already been decomposing when
it was found. 14

Dr. Mejia, however, said that she could not give a precise medical opinion on the laceration on
AAA's labia as she was not an obstetrician gynecologist. She also could not precisely tell how many
days lapsed since AAA had died, though she testified that the cracked temporal skull may have
caused AAA's death. 15

Dr. Bandonill, the medico-legal officer of the National Bureau of Investigation, testified that he
conducted an autopsy on AAA on May 29, 1996. Upon examination, he found that the cadaver was
at an advanced state of decomposition, the face was contorted, the tongue was protruding / from the
mouth, and all the extremities were flexed. He noted that the contorted face could have been either
due to decomposition or due to a grimace caused by pain before she died. 16

Dr. Bandonill also observed contusions on AAA's face, right arm's anterior surface, and the front and
side parts of her thigh. He noted contusions on the genital area, which could have been caused by a
hard or blunt instrument. Clumps of dried blood from the vaginal opening could have also been
caused by a tear inside the genital area.17

From these findings, Dr. Bandonill remarked that AAA might have been sexually assaulted. He
added that AAA's death could have been caused by the traumatic cerebral contusion. 18

CCC, the victim's father, testified that AAA was 11 years old when she was raped and killed. He
showed that he spent ₱20,000.00 for the internment of AAA and ₱30,000.00 for miscellaneous
expenses such as transportation costs. In anguish from AAA's death, he also asked for damages. 19

For the defense, ZZZ testified that he was 15 years old when the incident happened, as evidenced
by his birth certificate. He confirmed that he knew AAA as his cousin, and that both resided in the
same barangay. On the night of May 16, 1996, he said that he went to his grandmother's house,
where he watched television with his brother and around 20 other people including AAA. After
watching, he and his brother, YYY, returned to their sister's house to sleep. He said that he did not
notice if AAA left their grandmother's house. 20

Cansino added that when AAA was found dead, none of the barangay officials and police officers
went to his sister's house to investigate him. On May 22, 1996, his stepfather brought him to Tarlac
to work as a helper in a grocery store, where he used the alias Peter Viray to be employed. He later
found out that he was charged with rape with homicide of AAA. 21

Also testifying for the defense was YYY, ZZZ's brother, who retracted what he had said earlier when
the police interviewed him. Affirming ZZZ's testimony, he testified that on the night of the incident,
they watched television at their grandmother's house before they went home and slept at their
sister's house.
22

In a March 4, 2013 Decision,  the Regional Trial Court found ZZZ guilty of the crime charged. The
23

dispositive portion read:

WHEREFORE, premises considered, judgment is hereby rendered finding the accused GUILTY
beyond reasonable doubt of the crime charged, punishable by reclusion perpetua. However, the
service of sentence is hereby suspended, and in lieu of imprisonment, he is disposed with in an
agricultural camp or any other training facility that may be supervised and controlled by the BUCOR,
in coordination with the DSWD, in accordance with Section 51 of RA 9344.

The accused is ordered to pay the heirs of the victim: Php20,000.00 as actual damages;
Php100,000.00 as civil indemnity ex delicto; Php75,000.00 as moral damages; and Php50,000.00 as
exemplary damages.

SO ORDERED. 24

The trial court found that the circumstantial evidence presented by the prosecution proved ZZZ's
guilt beyond reasonable doubt. It ruled that there was moral certainty that ZZZ perpetrated the crime
since he had been the last person seen with AAA before she disappeared, and he fled and hid his
identity when he learned that he was a suspect.  The trial court ruled that the positive identification
25
of ZZZ prevailed over the defense of denial. It found his alibi that he went home after watching
television did not preclude the possibility that he was at the crime scene. 26

Adopting the report of the social worker who was assigned to ZZZ, the trial court found that he acted
with discernment in committing the crime against AAA. 27

Upon appeal, the Court of Appeals, m its February 29, 2016 Decision,  affirmed ZZZ's conviction:
28

IN VIEW OF THE FOREGOING, the instant Appeal is hereby DENIED for lack of merit. The
Decision dated March 2013 of the Regional Trial Court, Branch 56, ███████████, in Criminal
Case No. SCC-2594 is hereby AFFIRMED.

SO ORDERED. 29

The Court of Appeals agreed with the trial court in relying on the testimony of BBB, who saw ZZZ
dragging AAA toward the school on the night of the incident. Aside from finding his testimony
spontaneous and convincing, it did not find any motive from BBB to wrongly implicate ZZZ to the
crime.30

The Court of Appeals ruled that although BBB did not actually see ZZZ raping AAA, circumstantial
evidence led to the reasonable conclusion that ZZZ perpetrated the crime: (1) BBB positively
identified ZZZ as the person last seen with the victim immediately before the incident; and (2) ZZZ
hid from authorities and adopted an alias. The Court of Appeals concluded that these pieces of
circumstantial evidence operated against ZZZ. 31

Furthermore, the Court of Appeals ruled that between the categorical statements and the bare denial
of ZZZ, the former prevailed. While ZZZ's testimony was corroborated by his brother, the Court of
Appeals ruled that the latter could not be considered a disinterested witness. Moreover, it found that
it was not physically impossible for ZZZ to be in the crime scene since he and AAA resided in the
same barangay. 32

The Court of Appeals held that the trial court was correct in retroactively applying Republic Act No.
9344, or the Juvenile Justice and Welfare Act of2006. Under Section 6 of the law, a child above 15
years old but below 18 years old is not exempt from criminal liability when the child acted with
discernment. The Court of Appeals found that ZZZ acted with discernment when he perpetrated the
crime in a dark and isolated place, and when he evaded arrest by fleeing to Tarlac under an alias. It
noted that even the social worker assigned to him arrived at the same conclusion. 33

As ZZZ was already above 30 years old when he was convicted, the Court of Appeals held that the
automatic suspension of the penalty as provided under Sections 38 and 40 of Republic Act No. 9344
was no longer applicable. 34

ZZZ filed his Notice of Appeal. His appeal having been given due course, the Court of Appeals
elevated the records of this case to this Court.
35

In its February 20, 2017 Resolution,  this Court required the parties to submit their supplemental
36

briefs. Both parties later manifested that they would adopt their Briefs before the Court of Appeals. 37

Accused-appellant mainly argues that the prosecution failed to prove his guilt. 38
First, accused-appellant questions the credibility of BBB's testimony. He claims that contrary to
BBB's testimony, human experience dictates that BBB, as AAA's guardian, should have been
alarmed when he allegedly saw him dragging her to a dark place. He also questions BBB's story in
which AAA did not ask for help when BBB allegedly saw her being dragged.  Moreover, he finds it 39

suspicious that BBB failed to find AAA's body when he purportedly searched the area near the
school, as the corpse's stench would have caught his attention.  He surmises that BBB implicated
40

him in the crime because BBB was himself investigated by the police. 41

Even assuming that he was the last person seen with AAA, accused-appellant argues that this
merely raises suspicion but is not sufficient to establish his guilt. 42

Second, accused-appellant posits that even if he committed the crime, the Information failed to
allege that he acted with discernment, which meant that he should not be held criminally liable. He
posits that the trial court, in failing to conduct its own determination and merely relying on the social
worker's report, erred in ruling that he had acted with discernment. 43

Third, accused-appellant contends that he was not guilty of fleeing to evade the charge against him.
He reasons that he went to Tarlac because he was brought there by his stepfather, and as a child,
he had no choice but to follow this order. He also points out that he regularly returned to
███████████ every month while he was working in Tarlac. 44

Lastly, accused-appellant avers that his denial must be considered since it was corroborated by his
brother, who was with him when the crime was committed. He posits that while the defense of denial
is deemed inherently weak, the prosecution cannot profit from this alone; instead, it should rely on
the strength of its own evidence. 45

On the other hand, plaintiff-appellee People of the Philippines, through the Office of the Solicitor
General, argues that the circumstantial evidence submitted by the prosecution proves accused-
appellant's guilt beyond reasonable doubt.  It avers that the circumstances in this case created an
46

unbroken chain that led to the reasonable conclusion that accused appellant raped and killed AAA. 47

Moreover, plaintiff-appellee argues that the testimony of ZZZ's brother, YYY, deserves no
credence.  It points out that according to PO3 Lavarias' testimony, YYY narrated on May 20, 1996
48

that while he was walking home with accused-appellant and AAA on the night of the incident, his
brother advised him to leave them behind.  In his testimony in court, however, YYY recanted this
49

story and stated that he went home with accused-appellant. Plaintiff-appellee submits that YYY's
narration in 1996 was more credible than his testimony, as it was taken almost right after the incident
and when he was only seven (7) years old, leaving little room for coaching. 50

Plaintiff-appellee contends that the trial court did not err in giving credence to BBB's testimony,
maintaining that there was nothing incredible in what he said: (1) he was not alarmed when he saw
accused-appellant with AAA because they were relatives; and (2) he testified that both of them told
him that they would follow him home after he had admonished them.  Plaintiff-appellee also
51

maintains that SPO3 Lavarias clarified that BBB was never a suspect in the case, quashing
accused-appellant's claim that BBB had the motive to implicate him in the crime.  It echoes the 52

settled doctrine that appellate courts will generally not disturb the trial court's findings when it comes
to witnesses' credibility.
53

Plaintiff-appellee asserts that the positive identification of accused appellant, taken together with
other circumstantial evidence, leads to a reasonable conclusion that he perpetrated the crime. 54
As to whether accused-appellant acted with discernment, plaintiff-appellee posits that the allegation
in the Information sufficiently met the requirement.  Nevertheless, should there be a defect in the
55

Information, plaintiff-appellee maintains that accused-appellant is deemed to have waived his

objections when he entered his plea.  Moreover, it argues that hiding from authorities indicates
56

accused-appellant's discernment, as it shows that he was fully aware of his act's consequences and
depravity.57

The issues for this Court's resolution are the following:

First, whether or not accused-appellant ZZZ is guilty beyond reasonable doubt of the crime of rape
with homicide; and

Second, whether or not the prosecution proved that accused-appellant acted with discernment.

In People v. Villarino,  the elements of special complex crime of rape with homicide are the
58

following:

(1) the appellant had carnal knowledge of a woman; (2) carnal knowledge of a woman was achieved
by means of force, threat or intimidation; and (3) by reason or on occasion of such carnal knowledge
by means of force, threat or intimidation, the appellant killed a woman.59

The commission of the crime of rape may be proven not only by direct evidence, but also by
circumstantial evidence.  Circumstantial evidence are "proof of collateral facts and circumstances
60

from which the existence of the main fact may be inferred according to reason and common
experience." 61

In the absence of direct evidence, a resort to circumstantial evidence is usually necessary in proving
the commission of rape. This is because rape "is generally unwitnessed and very often only the
victim is left to testify for [him or] herself. It becomes even more difficult when the complex crime of
rape with homicide is committed because the victim could no longer testify." 62

Rule 133, Section 4 of the Revised Rules on Evidence provides the requirements for circumstantial
evidence to be sufficient to sustain a conviction:

SECTION 4. Circumstantial evidence, when sufficient. - Circumstantial evidence is sufficient for

conviction if:

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a conviction beyond reasonable
doubt.

The trial court and the Court of Appeals considered the following circumstantial evidence in
convicting accused-appellant: (1) BBB testified seeing him dragging AAA to the school on the night
of the incident; (2) accused-appellant's brother, YYY, testified going home with him and AAA, but
accused-appellant asked him to leave them behind; (3) after AAA's body had been found, accused-
appellant fled town and hid his identity using an alias; and (4) the post-mortem examination
conducted by Dr. Mejia and Dr. Bandonill confirmed that the cause of AAA's death was a traumatic
cerebral contusion, while the dried blood from her vagina was caused by a tear inside the genital
area.

A careful review of the records shows nothing that warrants the reversal of the trial court's and the
Court of Appeals' rulings.

Accused-appellant questions the trial court's Decision by pointing out that the sole basis of his
conviction is that he had been the last person seen with AAA before she disappeared. This is not the
case. His conviction is anchored not only on this single instance, but on the series of circumstantial
evidence against him. The circumstantial evidence proffered by the prosecution constitutes an
unbroken chain that leads to a reasonable conclusion that accused-appellant, and no other person,
was the author of the crime. Indeed, proof beyond reasonable doubt "does not mean such a degree
of proof as to exclude the possibility of error and produce absolute certainty. Only moral certainty is
required or that degree of proof which produces conviction in an unprejudiced mind." 63

Moreover, there is no showing that the trial court erred in g1vmg credence to BBB's testimony. As
BBB explained, he reprimanded accused-appellant and AAA when he saw them, but he was not
suspicious since the two were relatives. Moreover, the prosecution established that BBB was not a
suspect in the crime, and nor was there any proof that BBB had motive to erroneously implicate
accused-appellant.

As this Court held in People v. Baron,  "factual findings of the trial court and its evaluation of the
64

credibility of witnesses and their testimonies are entitled to great respect and will not be disturbed on
appeal, unless the trial court is shown to have overlooked, misapprehended, or misapplied any fact
or circumstance of weight and substance."  Here, it was not shown that the trial court erred and
65

misapprehended any fact or evidence. The trial court's findings, when affirmed by the Court of
Appeals, are binding and conclusive on this Court.  Thus, its findings must not be disturbed.
66

Lastly, accused-appellant's denial cannot prevail over the prosecution's evidence. Although the
testimony of his brother YYY corroborated his denial, it does not escape this Court's attention that
his brother admitted in his initial testimony that he did not go home with accused-appellant on the
night of the incident. This Court has held that retractions are generally disfavored as they are
unreliable.
67

Nevertheless, even if we consider YYY's more recent testimony, accused-appellant's alibi must still
fail. For his defense of alibi to be credible, he must show that it was physically impossible for him to
be at the crime scene when the crime was committed.  Yet, accused-appellant, who stayed in the
68

same barangay as AAA and the school, failed to do so.

II

Republic Act No. 9344, or the Juvenile Justice and Welfare Act of 2006, provides the minimum age
of criminal responsibility:

SECTION 6. Minimum Age of Criminal Responsibility. - A child fifteen (15) years of age or under at
the time of the commission of the offense shall be exempt from criminal liability. However, the child
shall be subjected to an intervention program pursuant to Section 20 of this Act.

A child is deemed to be fifteen (15) years of age on the day of the fifteenth anniversary of his/her
birthdate.
A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from
criminal liability and be subjected to an intervention program, unless he/she has acted with
discernment, in which case, such child shall be subjected to the appropriate proceedings m
accordance with this Act.

The exemption from criminal liability herein established does not include exemption from civil liability,
which shall be enforced in accordance with existing laws.

This Court has defined discernment as the "mental capacity of a minor to fully appreciate the
consequences of his unlawful act."  This is determined by considering all the facts of each case.
69 70

Under Republic Act No. 9344, children above 15 years old but below 18 years old who acted without
discernment are exempt from criminal responsibility. They "shall be released and shall be subjected
to an intervention program as may be determined by a local social welfare and development officer,
pursuant to Section 20[.]" 71

On the other hand, if they acted with discernment, they shall not be exempt from criminal
responsibility. In Dorado v. People, this Court explained how the law applies to children in conflict
with the law who acted with discernment:

Consequently, under R.A. No. 9344, only a child above fifteen (15) years but below eighteen (18)
years of age who acted with discernment shall not be exempted from criminal responsibility.
Nevertheless, the said child does not immediately proceed to trial. Instead, he or she may undergo a
diversion, which refers to an alternative, child-appropriate process of determining the responsibility
and treatment of the [child in conflict with the law] without resorting to formal court proceedings. If
the diversion is unsuccessful or if the other grounds provided by law are present, then the [child in
conflict with the law] shall undergo the appropriate preliminary investigation of his or her criminal
case, and trial before the courts may proceed.

Once the [child in conflict with the law] is found guilty of the offense charged, the court shall not
immediately execute its judgment; rather, it shall place the [child in conflict with the law] under
suspended sentence. Notably, the suspension shall still be applied even if the juvenile is already
eighteen (18) years of age or more at the time of the pronouncement of his or her guilt. During the
suspension, the court shall impose the appropriate disposition measures as provided in the Supreme
Court Rule on Juveniles in Conflict with the Law. If the disposition measures are successful, then the
court shall discharge the [child in conflict with the law]. Conversely, if unsuccessful, then the court
has the following options: (1) to discharge the child, (2) to order execution of sentence, or (3) to
extend the suspended sentence for a certain specified period or until the child reaches the maximum
age of twenty-one (21) years.  (Citations omitted)
72

Here, accused-appellant argues that even if he were guilty of raping AAA, he must still be exempt
from criminal liability since he was only 15 years old  when he committed the offense and the
73

prosecution failed to prove that he acted with discernment.

The trial court and the Court of Appeals found that accused-appellant acted with discernment in
carrying out the crime.  First, he perpetrated the crime in a dark and isolated place. Second, after
74

knowing that he had been tagged as the suspect, he evaded authorities by fleeing to Tarlac and
concealing his identity. Third, as confirmed by the social worker assigned to him, he knew and
understood the consequences of his acts. Lastly, Dr. Bandonill concluded that AAA was raped by
means of force, as evidenced by the contusions all over her body and by the tear from her vaginal
area.
As can be gleaned from these facts, accused-appellant committed the crime with an understanding
of its depravity and consequences. He must suffer the full brunt of the penalty of the crime.

Considering that accused-appellant is already over 30 years old when he was convicted, the
automatic suspension of the sentence provided under Section 38 of Republic Act No. 9344, in
relation to Section 40, may no longer be applied. While the suspension of sentence still applies even
if the child in conflict with the law is already of the age of majority at the time his conviction was
rendered, the suspension applies only until the minor reaches the maximum age of 21.  The 75

provisions state:

SECTION 38. Automatic Suspension of Sentence. - Once the child who is under eighteen (18) years
of age at the time of the commission of the offense is found guilty of the offense charged, the court
shall determine and ascertain any civil liability which may have resulted from the offense committed.
However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict
with the law under suspended sentence, without need of application: Provided, however, That
suspension of sentence shall still be applied even if the juvenile is already eighteen years (18) of age
or more at the time of the pronouncement of his/her guilt.

Upon suspension of sentence and after considering the various circumstances of the child, the court
shall impose the appropriate disposition measures as provided in the Supreme Court Rule on
Juveniles in Conflict with the Law.

....

SECTION 40. Return of the Child in Conflict with the Law to Court. If the court finds that the
objective of the disposition measures imposed upon the child in conflict with the law have not been
fulfilled, or if the child in conflict with the law has willfully failed to comply with the conditions of
his/her disposition or rehabilitation program, the child in conflict with the law shall be brought before
the court for execution of judgment.

If said child in conflict with the law has reached eighteen (18) years of age while under suspended
sentence, the court shall determine whether to discharge the child in accordance with this Act, to
order execution of sentence, or to extend the suspended sentence for a certain specified period or
until the child reaches the maximum age of twenty-one (21) years.

As to the proper penalty for rape with homicide, Articles 266-A and 266-B of the Revised Penal Code
provides:

ARTICLE 266-A. Rape; When and How Committed. - Rape is committed -

1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:

a) Through force, threat, or intimidation;

b) When the offended party is deprived of reason or otherwise unconscious;

c) By means of fraudulent machination or grave abuse of authority; and

d) When the offended party is under twelve (12) years of age or is demented, even though none of
the circumstances mentioned above be present.
ARTICLE 266-B. Penalties. - Rape under paragraph 1 of the next preceding article shall be punished
by reclusion perpetua.

....

When by reason or on the occasion of the rape, the victim has become insane, the penalty shall
be reclusion perpetua to death.

Thus, the imposable penalty for the crime of rape with homicide is death.  Under Article 63  of the
1âшphi1
76

Revised Penal Code, if the penalty prescribed by law is composed of two (2) indivisible penalties,
the lesser penalty shall be imposed if neither mitigating nor aggravating circumstances are present
in the commission of the crime. Absent any aggravating circumstances, the lesser penalty
of reclusion perpetua is imposable. Furthermore, since accused-appellant was a minor when he
committed the crime, he is entitled to the privileged mitigating circumstance of minority under
Section 68(2)  of the Revised Penal Code. Thus, the proper imposable penalty on him is reclusion
77

temporal.

Applying the Indeterminate Sentence Law, the indeterminate penalty has a minimum period within
the range of prision mayor-the penalty one (1) degree lower to that provided in Article 249-and a
maximum period within the range of reclusion temporal in its medium period. Hence, the
indeterminate sentence of 10 years and one (1) day of prision mayor, as minimum, to 17 years and
four (4) months of reclusion temporal, as maximum, should be imposed.

In accordance with People v. Jugueta,  the proper amount of damages for the special complex crime
78

of rape with homicide when the penalty imposed is reclusion perpetua should be ₱75,000.00 each
for civil indemnity, moral damages, and exemplary damages. This Court also affirms the award of
actual damages of ₱20,000.00. In addition, the damages awarded shall earn legal interest at the rate
of six percent (6%) per annum from the finality of the judgment until fully paid.

WHEREFORE, the Court of Appeals' February 29, 2016 Decision in CA-G.R. CR-HC No. 06486
is AFFIRMED with MODIFICATION. Accused-appellant ZZZ is found GUILTY beyond reasonable
doubt of the special complex crime of rape with homicide and is sentenced to suffer the
indeterminate penalty 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.

Accused-appellant is ordered to pay the heirs of AAA the amounts of: (1) Seventy-Five Thousand
Pesos (₱75,000.00) as civil indemnity; (2) Seventy-Five Thousand Pesos (₱75,000.00) as moral
damages; (3) Seventy-Five Thousand Pesos (₱75,000.00) as exemplary damages; and (4) Twenty
Thousand Pesos (₱20,000.00) as actual damages.

All damages awarded shall be subject to interest at the rate of six percent (6%) per annum from the
finality of this Decision until fully paid.

SO ORDERED.

G.R. No. 178626               June 13, 2012

CECILIA U. LEGRAMA, Petitioner,
vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, Respondents.
 DECISION

PERALTA, J.:

This is a petition for review on certiorari assailing the Decision dated January 30, 2007 of the
1 

Sandiganbayan in Criminal Case No. 25204 finding petitioner guilty of the crime of Malversation of
Public Funds, and the Resolution dated May 30, 2007 denying petitioner’s motion for
2 

reconsideration.

The factual and procedural antecedents are as follows:

On September 5, 1996, the Office of the Provincial Auditor of the Commission on Audit (COA) for the
Province of Zambales issued PAO Office No. 96-09 directing an Audit Team composed of State
3 

Auditor 1 Virginia D. Bulalacao, State Auditor 1 Teresita Cayabyab and Auditing Examiner II Lourdes
Castillo, to conduct an examination of the cash and account of petitioner Cecilia Legrama, the
Municipal Treasurer of the Municipality of San Antonio, Zambales.

After the audit, the COA prepared a Special Cash Examination Report on the Cash and Accounts of
Ms. Cecilia U. Legrama dated October 1, 1996. The report contained the findings that petitioner’s
4 

cash accountability was short of ₱289,022.75 and that there was an unaccounted Internal Revenue
Allotment (IRA) in the amount of ₱863,878.00, thereby showing a total shortage in the amount of
₱1,152,900.75. Included in the shortage is the amount of ₱709,462.80, representing the total
amount of various sales invoices, chits, vales, and disbursement vouchers, which were disallowed in
5 

the audit for lack of supporting documents. From the total amount of the shortage, petitioner was
able to restitute the initial amount of ₱60,000.00,6

Consequently, petitioner and Romeo D. Lonzanida (Lonzanida), the Municipal Mayor of San
Antonio, Zambales at the time the audit was conducted, were charged in an Information dated 7 

December 15, 1998 with the crime of Malversation of Public Funds. The accusatory portion of which
reads:

That on or about October 1, 1996 and for sometime prior or subsequent thereto, in the Municipality
of San Antonio, Province of Zambales, Philippines and within the jurisdiction of this Honorable
tribunal, the above named accused ROMEO D. LONZANIDA, being then Municipal Mayor of San
Antonio, Zambales, in connivance and conspiracy with co-accused CECILIA U. LEGRAMA, being
then Municipal Treasurer of San Antonio, Zambales, who, as such, is accountable for public funds
received and/or entrusted to her by reason of her office, both, while in the performance of their
respective official functions, taking advantage of their official positions, and committing the offense in
relation to their respective functions, did then and there, wilfully, unlawfully, feloniously and with
grave abuse of confidence, take, misappropriate and convert to their personal use and benefit, the
amount of ₱1,152,900.75 from such public funds, to the damage of the government, in the aforesaid
8 

amount.

CONTRARY TO LAW.

Both petitioner and Lonzanida voluntarily surrendered and posted their respective cash bonds.

Upon arraignment, petitioner and Lonzanida pleaded not guilty to the offense charged; hence, trial
on the merits ensued.
To establish its case, the prosecution presented the testimony of the Audit Team leader, Virginia D.
Bulalacao. On the other hand, the defense presented both the testimonies of petitioner and
Lonzanida. After the parties have submitted their respective pleadings and evidence, the
Sandiganbayan rendered a Decision acquitting Lonzanida. However, the tribunal concluded that
9 

petitioner malversed the total amount of ₱1,131,595.05 and found her guilty of the crime of
Malversation of Public Funds and sentenced her accordingly the dispositive portion of the Decision
reads:

WHEREFORE, premises considered, for failure of the prosecution to prove his guilt beyond
reasonable doubt, accused ROMEO D. LONZANIDA, is hereby acquitted of the instant crime
charged.

The Hold Departure Order issued against him is hereby ordered lifted. The cash bond which he
posted to obtain his provisional liberty is hereby ordered returned to him subject to the usual auditing
and accounting procedures.

Accused CECILIA U. LEGRAMA is hereby declared guilty beyond reasonable doubt of the crime of
Malversation of Public Funds.

The amount involved in the instant case is more than Php22,000.00. Hence, pursuant to the
provisions of Article 217 of the Revised Penal Code, the penalty to be imposed is reclusion temporal
in its maximum period to reclusion perpetua.

Considering the absence of any aggravating circumstance and the presence of two mitigating
circumstances, viz., accused Legrama’s voluntary surrender and partial restitution of the amount
involved in the instant case, and being entitled to the provisions of the Indeterminate Sentence Law,
she is hereby sentenced to suffer an indeterminate penalty of 4 years, 2 months and 1 day of prision
correccional, as minimum, to 10 years and 1 day of prision mayor, as maximum.

Further, she is ordered to pay the amount of Php299,204.65, representing the balance of her
incurred shortage after deducting therein the restituted amount of Php832,390.40 and the
Php200.00 covered by an Official Receipt dated August 18, 1996 issued in the name of the
Municipality of San Antonio (Exhibit "22"). She is also ordered to pay a fine equal to the amount
malversed which is Php1,131,595.05 and likewise suffer the penalty of perpetual special
disqualification and to pay costs.

SO ORDERED. 10

In convicting petitioner of the crime charged against her, the Sandiganbayan concluded that the
prosecution established all the elements of the crime of malversation of public funds. Although
petitioner was able to restitute the total amount of ₱832,390.40, petitioner failed to properly explain
11 

or justify the shortage in her accountability. However, the same conclusion against petitioner’s co-
accused was not arrived at by the court, considering that there was no evidence presented to prove
that he conspired with the petitioner in committing the crime charged.

Petitioner filed a Motion for Reconsideration, but it was denied in the Resolution dated May 30,
12  13 

2007.

Hence, the petition assigning the following errors:

I.
 THE HONORABLE SANDIGANBAYAN ERRED AND GRAVELY ABUSED ITS
DISCRETION IN CONVICTING THE ACCUSED CECILIA U. LEGRAMA BEYOND
REASONABLE DOUBT OF THE CRIME OF MALVERSATION AND IN DIRECTING THE
ACCUSED TO PAY THE AMOUNT OF PHP299,204.65 AND A FINE EQUAL TO THE
AMOUNT MALVERSED WHICH IS PHP1,131,595.05.

II.

THE HONORABLE SANDIGANBAYAN ERRED AND GRAVELY ABUSED ITS

DISCRETION IN CONVICTING THE ACCUSED CECILIA U. LEGRAMA BEYOND
REASONABLE DOUBT OF THE CRIME OF MALVERSATION IN NOT FINDING THAT SHE
SUCCEEDED TO OVERTHROW THE PRIMA FACIE EVIDENCE OF
CONVERSION/MISAPPROPRIATION UNDER ARTICLE 217 OF THE REVISED PENAL
CODE AND IN REJECTING HER EXPLANATION AS REGARDS THE VOUCHERS AND
"VALE." 14

Petitioner argues that the Sandiganbayan failed to consider the testimonial and documentary
exhibits presented to support her claim that she did not appropriate or misappropriate for her use
and benefit the subject fund nor did she allow her co-accused to use the said fund without the proper
acknowledgment such as receipts, vales or sign chits. Petitioner maintains that she has satisfactorily
explained the shortage on the basis of the documentary evidence submitted.

As for her failure to make the necessary liquidation of the amount involved, petitioner posits that this
is not attributable to her, considering that before she could make the proper liquidation, she was
already relieved from duty and was prevented by the COA team from entering her office.

On its part, respondent maintains that petitioner’s failure to account for the shortage after she was
demanded to do so is prima facie proof that she converted the missing funds to her personal use. It
insists that the prosecution has sufficiently adduced evidence showing that all the elements of the
crime of Malversation of public funds are present in the instant case and that it was proper for the
Sandiganbayan to convict her of the crime charged.

The petition is bereft of merit.

Malversation of public funds is defined and penalized in Article 217 of the Revised Penal Code,
which reads:

Art. 217. Malversation of public funds or property; Presumption of malversation. - Any public officer

who, by reason of the duties of his office, is accountable for public funds or property, shall
appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or
negligence, shall permit any other person to take such public funds or property, wholly or partially, or
shall, otherwise, be guilty of the misappropriation or malversation of such funds or property, shall
suffer:

1. The penalty of prision correccional in its medium and maximum periods, if the amount
involved in the misappropriation or malversation does not exceed 200 pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is
more than 200 pesos but does not exceed 6,000 pesos.
 3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum
period, if the amount involved is more than 6,000 pesos but is less than 12,000 pesos.

4. The penalty of reclusion temporal in its medium and maximum periods, if the amount
involved is more than 12,000 pesos but is less than 22,000 pesos. If the amount exceeds the
latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special
disqualification and a fine equal to the amount of the funds malversed or equal to the total value of
the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property with which he is
chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has
put such missing funds or property to personal use.

Malversation may be committed by appropriating public funds or property; by taking or

misappropriating the same; by consenting, or through abandonment or negligence, by permitting any
other person to take such public funds or property; or by being otherwise guilty of the
misappropriation or malversation of such funds or property. The essential elements common to all
15 

acts of malversation under Article 217 of the Revised Penal Code are:

(a) That the offender be a public officer;

(b) That he had the custody or control of funds or property by reason of the duties of his
office;

(c) That those funds or property were public funds or property for which he was accountable;
and

(d) That he appropriated, took, misappropriated or consented, or through abandonment or

negligence, permitted another person to take them.

More importantly, in malversation of public funds, the prosecution is burdened to prove beyond
reasonable doubt, either by direct or circumstantial evidence, that the public officer appropriated,
misappropriated or consented, or through abandonment or negligence, permitted another person to
take public property or public funds under his custody. Absent such evidence, the public officer
cannot be held criminally liable for malversation. Mere absence of funds is not sufficient proof of
conversion; neither is the mere failure of the public officer to turn over the funds at any given time
sufficient to make even the prima facie case. In fine, conversion must be proved. However, an
accountable officer may be convicted of malversation even in the absence of direct proof of
misappropriation so long as there is evidence of shortage in his account which he is unable to
explain.16

Under Article 217, a presumption was installed that upon demand by any duly authorized officer, the
failure of a public officer to have duly forthcoming any public funds or property – with which said
officer is accountable – should be prima facie evidence that he had put such missing funds or
properties to personal use. When these circumstances are present, a "presumption of law" arises
that there was malversation of public funds or properties as decreed by Article 217. To be sure, this
17 

presumption is disputable and rebuttable by evidence showing that the public officer had fully
accounted for the alleged cash shortage.
In the case at bar, after the government auditors discovered the shortage and informed petitioner of
the same, petitioner failed to properly explain or justify the shortage that was subject to her
18 

accountability. Petitioner denied that she put the amount involved to personal use and presented
various sales invoice, chits, vale forms, and disbursement voucher to prove her claim. Petitioner
19 

even went further by testifying that the total amount of ₱681,000.00 appearing in a disbursement
voucher were cash advances given to the mayor during the height of the Mt. Pinatubo eruption.
20 

However, the date when the eruption occurred was way before the period subject of the audit. As
aptly found by the court a quo:

This Court takes judicial notice that the Mt. Pinatubo erupted in June 1991, and has not erupted
again up to the present.  As stated earlier, the COA audit conducted on the account of accused
1âwphi1

Legrama covers the financial transactions of the municipality from June 24, 1996 to September 4,
1996. Therefore, the said cash advances, which accused Legrama confirmed were given to accused
Lonzanida "during the height of the Mt. Pinatubo eruption," which occurred five years before the
subject audit, are not expenses of the municipality during the period of audit covered in the instant
case. As it is, it has been disallowed by the COA for lack of necessary supporting papers. Even if the
said disbursement voucher had been completely accomplished, and granting that all the necessary
supporting documents had been attached thereto, it would nonetheless be disallowed because it
covers a transaction which is not subject of the audit.21

xxxx

In her defense, accused Legrama testified that except for the expenses she incurred for her official
travels, she did not put the amount involved in the instant case to personal use. As proof of her
claim, she produced and painstakingly identified in open court each and every sales invoice, chit,
vale and the disbursement voucher which are likewise the evidence of the prosecution marked as
Exhibits "B-3" to "B-3NN" (Exhibits "1" to "1-NN") and in addition, presented various sales invoice,
chit and vale form marked as Exhibits "3" to "72," all in the total amount of Php1,169,099.22, an
amount more than what is involved in the instant indictment. 22

To reiterate, the subject of the audit from which the instant case stemmed from are financial
transactions of the municipality from June 24, 1996 to September 4, 1996. Therefore, official
receipts, chits or vales, even if they are in the name of the municipality, but nonetheless issued to it
for transactions as far back as the year 1991 are immaterial to the instant case. It is sad and even
deplorable that accused Legrama, in an attempt to extricate herself from liability, tried to deceive this
Court in this manner. Having obtained a degree in Bachelor of Science Major in Accounting and
being the municipal treasurer for eight (8) years, accused Legrama is presumed to be aware that
she knowingly attempted to deceive this Court. 23

Undoubtedly, all the elements of the crime are present in the case at bar. First, it is undisputed that
petitioner was the municipal treasurer at the time material to this case. Second, it is the inherent
function of petitioner, being the municipal treasurer, to take custody of and exercise proper
management of the local government’s funds. Third, the parties have stipulated during the pre-trial of
the case that petitioner received the subject amount as public funds and that petitioner is
24 

accountable for the same. Fourth, petitioner failed to rebut the prima facie presumption that she has
25 

put such missing funds to her personal use.

Verily, in the crime of malversation of public funds, all that is necessary for conviction is proof that
the accountable officer had received the public funds and that he failed to account for the said funds
upon demand without offering sufficient explanation why there was a shortage. In fine, petitioner’s
failure to present competent and credible evidence that would exculpate her and rebut the prima
facie presumption of malversation clearly warranted a verdict of conviction.
As for the appropriate penalty, since the amount involved is more than ₱22,000.00, pursuant to the
provisions of Article 217 of the Revised Penal Code, the penalty to be imposed is reclusion temporal
in its maximum period to reclusion perpetua.

However, as aptly concluded by the Sandiganbayan, petitioner enjoys the mitigating circumstances
of voluntary surrender and restitution. Although restitution is akin to voluntary surrender, as provided
26 

for in paragraph 7 of Article 13, in relation to paragraph 10 of the same Article of the Revised Penal
27  28 

Code, restitution should be treated as a separate mitigating circumstance in favor of the accused
when the two circumstances are present in a case, which is similar to instances where voluntary
surrender and plea of guilty are both present even though the two mitigating circumstances are
treated in the same paragraph 7, Article 13 of the Revised Penal Code. Considering that restitution
29 

is also tantamount to an admission of guilt on the part of the accused, it was proper for the
Sandiganbayan to have considered it as a separate mitigating circumstance in favor of petitioner.

Taking into consideration the absence of any aggravating circumstance and the presence of two
mitigating circumstance, i.e., petitioner’s voluntary surrender and partial restitution of the amount
malversed, the prescribed penalty is reduced to prision mayor in its maximum period to reclusion
30 

temporal in its medium period, which has a range of ten (10) years and one (1) day to seventeen
(17) years and four (4) months. In accordance with paragraph 1, Article 64 of the Revised Penal
Code and considering that there are no other mitigating circumstance present, the maximum term
31 

should now be the medium period of prision mayor maximum to reclusion temporal medium, which
is reclusion temporal minimum and applying the Indeterminate Sentence Law, the minimum term
should be anywhere within the period of prision correccional maximum to prision mayor medium.
Hence, the penalty imposed needs modification. Accordingly, petitioner is sentenced to suffer the
indeterminate penalty of four (4) years, two (2) months and one (1) day of prision correccional, as
minimum, to twelve (12) years, five (5) months and eleven (11) days of reclusion temporal, as
maximum.

WHEREFORE, premises considered, the petition is DENIED. The Decision dated January 30, 2007
and the Resolution dated May 30, 2007 of the Sandiganbayan are AFFIRMED with MODIFICATION.
Petitioner is hereby sentenced to suffer the indeterminate penalty of four (4) years, two (2) months
and one (1) day of prision correccional, as minimum term, to twelve (12) years, five (5) months and
eleven (11) days of reclusion temporal, as maximum term.

SO ORDERED.

SECOND DIVISION

G.R. No. 218209, April 10, 2019

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, v. ROMEO ASENIERO,

ACCUSED-APPELLANT.

DECISION

CAGUIOA, J.:
Before this Court is an appeal1 filed under Section 13, Rule 124 of the Rules of Court
from the assailed Decision2 dated October 30, 2014 (Decision) of the Court of Appeals,
Nineteenth (19th ) Division (CA), in CA-G.R. CEB CR-HC No. 01422, which affirmed the
Decision3 dated April 27, 2010 of the Regional Trial Court, Branch 18, Hilongos, Leyte
(RTC), in Criminal Case No. H-1263, finding herein accused-appellant Romeo Aseniero
(Romeo) guilty of the crime of Murder under Article 248 of the Revised Penal Code
(RPC).

The Facts

Accused Romeo was charged for the crime of Murder under the following Information:
"That on or about the 24th day of August 2003, in the Municipality of Bato, Province of
Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused with deliberate intent to kill employing treachery and evident premeditation,
did then and there willfully and feloniously attack, assault, hack[,] stab DOMINADOR
RANES with a long bolo which the accused had provided himself for the purpose[,]
thereby causing and inflicting upon the victim multiple stabbed [sic] and hacked [sic]
wounds on the different parts of his body causing the immediate death of Dominador
Ranes."4
Upon arraignment, Romeo pleaded not guilty. 5

Version of the Prosecution

The version of the prosecution, as summarized by the CA, is as follows:

Roel Pilo, 19 years of age, married and a resident of Domagocdoc, Bato, Leyte is the
first witness for the prosecution. He testified that he is a friend of the victim,
Dominador Reyes. He knew the accused Romeo Aseniero because the latter lived in a
neighboring barangay. On August 23, 2003, at approximately 4:00 in the afternoon, he
was at Barangay Imelda, Bato, Leyte to attend a fiesta celebration. He was
accompanied by his friend Jimmy Garong. At about 7:00 in the evening, they went to
the barangay hall to see the operator of the sound system, who was their close friend.
At about 2:00 in the morning, he went to the dancing hall located inside the plaza, just
10 meters from the barangay hall. He saw Dominador Ranes, Mario Pelago, Analyn
Gomez and Mira Pagay occupying one table. At about 5:00 in the morning, he left the
dancing hall together with the group of Dominador Ranes. On their way home, they
passed by a road in Brgy. Imelda, Bato, Leyte. Since the road was too narrow, they did
not walk side by side. Mira Pagay trailed first, followed by Mario Pelago, then Roel, and
behind him were Dominador Ranes and Analyn Gomez. Suddenly, he heard Dominador
say "Aray" (Ouch!). At that instant, he saw Dominador run past him followed by the
accused Romeo Aseniero, who was carrying a long bolo. More or less four (4) meters
from where he was, Dominador stumbled, with his back on the ground. The accused
caught up with the victim and hacked him multiple times. Prior to the stabbing, Roel
Pilo did not notice that the accused was around. He recalled that on both sides of the
narrow trail, there were a lot of plants such as bamboo and coconut trees. He was so
shocked by the incident that he just stood there and watched. He asked the accused
why he stabbed the victim, to which the accused replied that he was jealous. At the
trial, Roel identified the murder weapon (long bolo) used in [the] killing of the victim.

On cross-examination, Roel Pilo admitted that it was only during the fiesta celebration
that he met the accused. At the place where the incident occurred, the grasses were
short such that any person on both sides of the narrow trail can readily be seen. He
also admitted that since the victim was walking behind him, he did not know if it was
the accused who assaulted the victim first.

The second witness for the prosecution is Analyn Gomez, single, 24 years of age, and a
resident of Brgy. Domagocdoc, Bato, Leyte. She testified that the victim was her
current boyfriend at the time of the incident and that the suspect was her former
boyfriend. On August 23, 2003, she went to Brgy. Imelda to attend the fiesta
celebration. She stayed at the house of a Sangguniang Kabataan Chairman and at
about 11:30 in the evening, she went to the dance hall, together with Mira Bagay,
Dominador Ranes, Lita Reyes and Gleen Reyes. At the dance hall, [s]he saw the
accused Romeo Aseniero and his companions. Analyn and her group went out of the
dance hall at about 5:00 in the morning. On their way home to Brgy. Domagocdoc,
they passed upon a narrow road. She was walking behind Dominador on th[e] trail
when Romeo Aseniero suddenly came from behind her and stabbed Dominador in the
back with a bolo. Dominador tried to run but stumbled down twenty-five (25) feet from
where he was stabbed. The accused was able to catch up with the victim and he
continued to stab the latter several times. She shouted "No!" but the accused continued
hacking the victim and even chopped off the latter's feet. The rest of the group ran
away while she hid herself behind a coffee tree, as the accused was looking for her. She
then ran towards the house of the barangay chairman of Brgy. Domagocdoc where she
reported the incident. She narrated that the reason why Romeo killed Dominador is
jealousy. She also identified the bolo used in killing the victim.

Upon clarificatory questioning by the judge, Analyn revealed that just one month after
her break-up with the accused, she started a relationship with the victim. And that
based on her observations, the accused was uneasy with her new love affair.

On cross-examination, she propounded that the reason why she broke up with the
accused was because the latter courted her cousin. She admitted that on both sides of
the narrow trail are cliffs. Before the accused stabbed the victim, the former pushed her
aside but she did not fall down the cliff as there was a rock on the side of the trail. She
shouted but it was already too late as Dominador was already stabbed in the back.
During the stabbing incident, the rest of the group ran away except for Roel Pilo. She
also admitted that the accused voluntarily surrendered to the barangay chairman.

The prosecution's third witness is Dr. Provo Quijano, 34 years of age, a resident of
Brgy. Bagumbayan, Bato, Leyte, and the Municipal Health Officer of Bato, Leyte. At the
trial, he identified the medical certificate which he issued in connection with the death
of Dominador Ranes. Since the counsel for the defense admitted the due execution of
the medical certificate, Dr. Quijano merely identified the said certificate and no longer
testified as to the circumstances surrounding the death of the victim. 6
Version of the Defense

The version of the defense, as summarized by the CA, is as follows:

The first witness for the defense is Loreto Gomez Papa, 42 years of age, married,
a tuba gatherer and a resident of Brgy. Marcelo, Bato, Leyte. He testified that he knows
the accused as they are neighbors and childhood playmates. On August 23, 2003, he
was at Brgy. Imelda, Bato, Leyte attending the barrio fiesta. He was with his cousins,
namely, Julie and Bobby Papas. They stayed at the house of their friend and went to
the dance hall at about 10:00 in the evening. He noticed that the accused and Analyn
Gomez were inside the dance hall, occupying different tables with their respective
groups. At about 5:00 in the morning, he left the dance hall together with his two
cousins and the accused, Romeo Aseniero. Analyn and her group were walking ahead of
them at a distance of about ten (10) arms-length. Analyn Gomez and the accused were
still sweethearts and have not broken up yet, but they were quarreling at that time.
When the accused saw Analyn, he tried to go after her and her companion. He told the
accused to just leave them alone but the latter did not heed his advice. When the
accused approached Analyn, he was kicked by Dominador. Instantly, Dominador
unsheathed his knife and Romeo, in turn, unsheathed his bolo. Loreto feared that a
bloody fight was forthcoming so he ran way. His other companions also took off. Later
that day, he received word that the companion of Analyn died.
On cross-examination, he admitted that Analyn Gomez and her group left the dance
hall ahead of their group, but the accused followed them. Romeo Aseniero caught up
with Analyn and her group. He was jealous and he wanted to confront Analyn. Loreto
admitted that until the time the accused and the victim unsheathed their weapons, no
altercation occurred.

The second witness for the defense is Gregorio Pol, 49 years of age, married,
a tuba gatherer, and a resident of Brgy. Marcelo, Bato, Leyte. He testified that he knew
the accused because the latter lives near their barangay. In the early morning of
August 24, 2003, he was walking behind Alin (Analyn) Gomez and accused, along with
other persons. Dominador was following the group of the accused. Suddenly,
Dominador kicked the accused and stabbed him with a knife. The accused then leaned
back, unsheathed his bolo and stabbed Dominador. Gregorio immediately ran away and
did not know what happened next after the accused stabbed the victim.

On cross-examination, Gregorio admitted that while Analyn and Dominador were

walking side by side, the accused trailed behind them and was walking fast. On re-
direct, he clarified that he saw the victim stab the accused in the chest.

The third witness for the defense is SPO3 Wilfreda Vargas, 48 years of age, married, a
police officer assigned at Matalom, Leyte, and a resident of Brgy. Tinago, Bato, Leyte.
He testified that in the early morning of August 24, 2003, the accused, accompanied by
one person, surrendered at the police station of Matalom. He personally received the
accused and caused the recording of the incident in the police blotter.

The accused did not testify in his own behalf.7

Ruling of the RTC

In its Decision dated April27, 2010, the RTC found Romeo guilty of Murder, to wit:
WHEREFORE, in view of the foregoing, accused ROMEO ASENIERO is found GUILTY
of MURDER under the Revised Penal Code as amended beyond reasonable
doubt and [is] hereby sentenced to suffer the imprisonment of RECLUSION
PERPETUA. And to indemnify the heirs of Dominador Ranes the amount of
FIFTY THOUSAND PESOS (P50,000.00), and to pay the amount of FIFTY
THOUSAND PESOS (P50,000.00), as moral damages.

SO ORDERED.8
The RTC ruled that treachery attended the killing of the victim. 9 The victim was
suddenly and unexpectedly hacked from behind by the accused. 10 It further ruled that
the testimonies of the defense witnesses are incomplete and unconvincing. 11 Lastly, it
held that although the accused voluntarily surrendered to the police authorities, such
mitigating circumstance cannot be applied to lower an indivisible penalty. 12

Aggrieved, Romeo appealed to the CA.

Ruling of the CA

In the assailed Decision dated October 30, 2014, the CA affirmed the conviction by the
RTC:
WHEREFORE, the April 27, 2010 Decision rendered by f he Regional Trial Court (RTC),
Branch 18, Hilongos, Leyte finding accused-appellant Romeo Aseniero guilty of murder
is AFFIRMED with MODIFICATION of his civil liability. Accused-appellant
is ORDERED to pay to the Heirs of Dominador Ranes the amounts of P75,000.00 as
civil indemnity, P75,000.00 as moral damages, P30,000.00 as exemplary damages,
P25,000.00 as temperate damages, interest on all the damages herein awarded at the
legal rate of 6% from the date of the incident to the finality of the judgment and 12%
from the finality hereof until fully paid, and to pay costs.

xxxx

SO ORDERED.13
The CA held that the accused's attack on the victim was treacherously carried out. 14 At
the time of the attack, the victim was just walking with his girlfriend and companions
when he was suddenly hacked from behind by the accused.15 It further held that the
testimony of Analyn Gomez (Analyn), the victim's girlfriend, is credible and sufficient as
it is corroborated by the other witnesses in some material points. 16 Lastly, it held that
the mitigating circumstance of voluntary surrender should be considered in the
imposition of the penalty.17

Hence, this appeal.

Issue

Whether the CA erred in affirming Romeo's conviction for Murder despite the fact that
the prosecution failed to establish his guilt for Murder beyond reasonable doubt.

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 fact or circumstance which if
considered, would have altered the result. 18 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.19 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. 20

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

Treachery not established beyond reasonable doubt

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

On the other hand, Romeo posits that the RTC misappreciated the qualifying
circumstance of treachery. He argues that the prosecution failed to prove that treachery
was employed in the killing of the victim.21 The fact that the attack was sudden per
se does not bespeak the circumstance of alevosia.22 He further argues that it was the
victim who first assaulted him by kicking him. 23 This was the substance of Loreto
Gomez Papa's (Loreto) testimony, which was corroborated by Gregorio Pol (Gregorio). 24

On this issue, the Court rules in favor of Romeo.

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.25 To qualify 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.26 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.27

In the case at bar, the prosecution failed to prove the presence of the elements of
treachery in the killing of the victim.

To start, based on the testimonies of the two defense witnesses the attack was
preceded by an altercation between Romeo and the victim. 28 Both Loreto and Gregorio
testified that it was the victim who first assaulted the accused. 29 This should prevail
over the testimony of the prosecution witness, Analyn, that Romeo immediately
stabbed the victim, more so considering that Analyn's testimony is uncorroborated by
the other prosecution witness, Roel Pilo (Roel), who testified that he did not see how
the attack began s he was walking in front of the victim. 30

There is no treachery if the attack was preceded by an altercation between the accused
and the victim. Each of them is forewarned of an impending attack by either of them.
Thus, in one case, the Court held, "[t]here is no treachery when the assault is preceded
by a heated exchange of words between the accused and the victim; or when the victim
is aware of the hostility of the assailant towards the former." 31
Certainly, the attack made by the accused was not sudden or unexpected as it was the
victim who first attacked the former. Even assuming that the version of the events as
narrated by Analyn is to be considered, she also narrated that she was pushed by the
accused prior to his attack on the victim.32 Thus, this event should have made the
victim aware that there was an impending attack on him. In addition, the victim was
able to defend himself from the initial stabbing act as he had his own weapon and was
able to run away from the accused.33 The only reason why he was not able to escape
was because he stumbled down and the accused caught up with him. 34 In another case,
the Court ruled that the qualifying circumstance of treachery cannot be appreciated
where the victim was forewarned of the impending attack and he could have in fact
escaped had he not stumbled.35

Mitigating circumstance of voluntary surrender properly appreciated

For voluntary surrender to mitigate the penal liability of the accused, the following
requisites must be established: first, the accused has not been actually
arrested; second, the accused surrenders himself to a person in authority or the latter's
agent; and third, the surrender is voluntary.36 The said requisites were sufficiently
proven by the defense.

SPO3 Wilfredo Vargas testified that the accused voluntarily surrendered at the Matalom
Police Station on August 24, 2003.37 This was corroborated by Analyn who admitted
that indeed Romeo immediately surrendered to the authorities after the incident. 38 Roel
likewise testified that he accompanied the accused to the police station. 39 Thus, the
mitigating circumstance of voluntary surrender should be considered in the imposition
of the penalty.

Proper penalty and award of damages

Therefore, with the removal of the qualifying circumstance of treachery, the crime is
Homicide and not Murder. Under Article 249 of the RPC, any person found guilty of
homicide shall be meted the penalty of reclusion temporal, a penalty which contains
three (3) periods.40 Given that Romeo voluntarily surrendered, Article 64(2) states that
when only a mitigating circumstance attended the commission of the felony, the
penalty shall be imposed in its minimum period.41 Thus, applying the Indeterminate
Sentence Law, the maximum penalty shall be reclusion temporal in its minimum period,
while the minimum penalty shall be prision mayor in any of its periods.42 Thus, he is to
suffer the indeterminate penalty of six (6) years and one (1) day of prision mayor, as
minimum, to twelve (12) ears and one (1) day of reclusion temporal, as maximum.43

Finally, in view of the Court's ruling in People v. Jugueta,44 the damages awarded in the
questioned 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 Romeo Aseniero GUILTY of HOMICIDE,
with the mitigating circumstance of voluntary surrender, for which he is sentenced to
suffer the indeterminate penalty of six (6) years and one (1) day of prision mayor, as
minimum, to twelve (12) years and one (1) day of reclusion temporal, as maximum. He
is further ordered to pay the heirs of the victim 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.
[G.R. No. L-29532. September 28, 1968.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. MARIANO OANDASAN (Bulala Sur,

Aparri, Cagayan), Defendant-Appellant.

Antonio Ma. Azurin, for Defendant-Appellant.

SYLLABUS

1. CRIMINAL LAW; MITIGATING CIRCUMSTANCE; CONFESSION OF GUILT; EFFECT OF CHANGE OF

PLEA OF GUILTY TO NOT GUILTY; RULE; REASON; EXCEPTION. — It is to be conceded right at the
outset that if an accused, charged with an offense cognizable by the municipal court, pleads not guilty
therein, and on appeal to the court of first instance, changes his plea to that of guilty upon
rearraignment, he should not be entitled to the mitigating circumstance of confession of guilt. The
philosophy behind this rule is obvious. For, the spontaneous willingness of the accused to admit the
commission of the offense charged, which is rewarded by the mitigating circumstance, is absent.
Indeed, if the rule were otherwise, an accused who, naturally nourishes the hope of acquittal, could
deliberately plead not guilty in the municipal court, and upon conviction and on appeal to the court of
first instance, plead guilty just so he can avail himself of the benefit of a mitigating circumstance. This
cannot be countenanced. The accused should not be allowed to speculate.

2. ID.; ID.; ID.; PLEA MUST BE ENTERED BEFORE THE COURT WHICH HAS JURISDICTION OVER THE
CASE. — The municipal court before which the accused pleaded not guilty was only conducting a
preliminary investigation. It had no jurisdiction over the crime of homicide; it could not have rendered
judgment on the plea. It must elevate the case to the court of first instance - the court of competent
jurisdiction - even if the plea be that of guilty. For purposes of applying the mitigating circumstance of
confession of guilt, the plea of not guilty upon arraignment at preliminary investigation in the
municipal court is no plea at all. Thus it is, that the proper forum where a plea in mitigation may be
presented is the court which has jurisdiction to take cognizance of the case. Homicide, we repeat, is
the charge. The court having original jurisdiction is the court of first instance. Defendant, accordingly,
properly entered his plea of guilty therein - with right to claim it as a mitigating circumstance.

3. ID.; ID.; PRIVILEGE MITIGATING CIRCUMSTANCE; PRESENCE OF INCOMPLETE SELF-DEFENSE IN

INSTANT CASE. — In the instant case, the accused saw the deceased Quirino Duldulao chasing the
former’s son. When the accused approached Duldulao and asked him why he (Duldulao) was doing so,
Duldulao hit the accused with a wooden club on the left shoulder. The accused drew a sharp-pointed
knife he had with him. Then, the deceased clubbed the accused on the head, which prompted the
latter to stab Duldulao on the front. As we see it, the only element absent to exempt the accused
totally from criminal liability under Article 11 (1), Revised Penal Code, is" (r)easonable necessity of the
means employed to prevent or repel" the unlawful aggression. The privileged mitigating circumstance
of incomplete self-defense is here present.

4. ID.; ID.; PENALTY IN CASE OF LACK OF OTHER JUSTIFIABLE CONDITIONS FOR COMPLETE
EXEMPTION FROM CRIMINAL LIABILITY. — By the facts, the accused deserves the benefit of Article 69
of the Revised Penal Code. It provides: "A penalty lower by one or two degrees than that prescribed
by law shall be imposed if the deed is not wholly excusable by reason of the lack of some of the
conditions required to justify the same or to exempt from criminal liability in the several cases
mentioned in Articles 11 and 12, provided that the majority of such conditions be present. The courts
shall impose the penalty in the period which may be deemed proper, in view of the number and nature
of the conditions of exemption present or lacking."cralaw virtua1aw library

5. ID.; HOMICIDE; IMPOSABLE PENALTY IN CASE AT BAR. — In view of the plea of guilty and
voluntary surrender and the absence of any aggravating circumstance, the accused is also entitled, as
Article 64(5) of the same code commands, to a "penalty next lower to that prescribed by law, in the
period that (the court) may deem applicable, according to the number and nature of such
circumstances." The crime of homicide is penalized by Article 249 of the Revised Penal Code. The
penalty therein prescribed is reclusion temporal. Two degrees lower is prision correccional, the penalty
imposable by the law in the period that the courts may deem applicable, "according to the number
and nature" of the mitigating circumstances. With the mitigating circumstance attendant, we feel that
Oandasan’s penalty should be fixed within the medium period at two (2) years, four (4) months, and
one day. Calling the Indeterminate Sentence Law into operation — whose applicability is based "upon
the penalty actually imposed in the discretion of the court," — the minimum of the penalty then should
be within the range of the penalty next lower in degree, i.e., arresto mayor, which we fix at four (4)
months.

DECISION

SANCHEZ, J.:

Defendant’s brief on appeal underscores one claimed error: the penalty imposed is incorrect. 1

The criminal complaint was for homicide. The charge was lodged with the Municipal Court of Flora,
Mountain Province. At the preliminary investigation in that court, the accused was arraigned, pleaded
"not guilty" to the charge.

The case was thereafter elevated to the Court of First Instance of Cagayan for trial on the merits.
There, a formal indictment for homicide was filed by the prosecuting attorney. Upon arraignment, the
accused — this time — pleaded guilty. Before sentence, he presented evidence to prove the mitigating
circumstances of incomplete self- defense and voluntary surrender, aside from the plea of guilty.

Came the trial judge’s decision of September 27, 1967. He ignored the appellant’s plea of guilty as a
mitigating circumstance "in view of his former plea of not guilty before the municipal court of Flora,
Mt. Province." He did not take into account incomplete self-defense as a privileged mitigating
circumstance. He merely accorded defendant the benefits of provocation together with voluntary
surrender, as ordinary mitigating circumstances. He thus sentenced defendant for the crime of
homicide defined and penalized under Article 249 of the Revised Penal Code to an indeterminate
penalty of two (2) years, four (4) months and one (1) day of prision correccional as minimum, to eight
(8) years of prision mayor as maximum, with the accessories of the law. He further directed defendant
to indemnify the heirs of the deceased in the sum of P6,000.00 without subsidiary imprisonment in
case of insolvency, and to pay costs.

1. The accused argues that his plea of guilty should be considered in his favor. In this he receives an
assist from the Solicitor General.

It is to be conceded right at the outset that if an accused, charged with an offense cognizable by the
municipal court, pleads not guilty therein, and on appeal to the court of first instance, changes his
plea to that of guilty upon rearraignment, he should not be entitled to the mitigating circumstance of
confession of guilt. 2 The philosophy behind this rule is obvious. For, the spontaneous willingness of
the accused to admit the commission of the offense charged, which is rewarded by the mitigating
circumstance, is absent. 3 Indeed, if the rule were otherwise, an accused, who naturally nourishes the
hope of acquittal, could deliberately plead not guilty in the municipal court, and upon conviction and
on appeal to the court of first instance, plead guilty just so he can avail himself of the benefit of a
mitigating circumstance. 4 This cannot be countenanced. The accused should not be allowed to
speculate.

One feature of this case, however, takes it out of the reach of the principle earlier adverted to. The
municipal court before which the accused pleaded not guilty was only conducting a preliminary
investigation. It had no jurisdiction over the crime of homicide; it could not have rendered judgment
on the plea. It must elevate the case to the court of first instance — the court of competent
jurisdiction — even if the plea be that of guilty. For purposes of applying the mitigating circumstance
of confession of guilt, the plea of not guilty upon arraignment at preliminary investigation in the
municipal court is no plea at all.

Upon the other hand, we cannot just sweep away defendant’s right to a preliminary investigation. It is
a statutory grant. It cannot be withheld. To do so would be to transgress constitutional due process.
Defendant herein was thus entitled to know if probable cause existed to require elevation of his case
to the court of first instance. Because, absent a probable cause, the case against him must be
dismissed. His plea of not guilty before the municipal court therefore may not be taken against him.

Thus it is, that the proper forum where a plea in mitigation may be presented is the court which has
jurisdiction to take cognizance of the case. Homicide, we repeat, is the charge. The court having
original jurisdiction is the court of first instance. Defendant, accordingly, properly entered his plea of
guilty therein - with right to claim it as a mitigating circumstance.

By statute [Article 13(7), Revised Penal Code], a circumstance which mitigates penal liability is that
the accused "had voluntarily confessed his guilt before the court prior to the presentation of the
evidence for the prosecution." Otherwise, such voluntary confession should be ruled out in fixing the
sentence. 5

Here, the plea of guilty was made upon arraignment, certainly before trial was conducted. The
mitigating circumstance of voluntary confession of guilt before the court of first instance should be
counted in his favor.

2. The other argument defendant presses upon us is that the trial court should have appreciated the
privileged mitigating circumstance of incomplete self-defense.

The concept of justice thus espoused finds full support in the trial court’s decision itself, viz: jgc:chanrobles.com.ph

"The accused testified that he saw the deceased Quirino Duldulao chasing his son. Not contented with
that and not being able to catch the latter the said victim Quirino Duldulao threw his wooden club at
the son of the accused, but the accused’s son was not hit. The accused approached Quirino Duldulao
and asked him why he was chasing the son and why he threw the club.

Upon being asked, the deceased Quirino Duldulao instead of answering the accused Mariano Oandasan
clubbed the accused Mariano Oandasan, hitting him on the left shoulder. The accused Mariano
Oandasan stepped backward and remembering that he had a sharp-pointed knife, he drew it. Again
the deceased struck the accused on the head with the club, so the accused stabbed Quirino Duldulao
on the front. The deceased sustained two wounds, one at the epigastric region and the other on the
right hand." 6

Once again, the Solicitor General joins the accused in ascribing error to the trial court when it declared
that the facts just recited merely show provocation by the deceased, a mitigating circumstance under
Article 13(4), Revised Penal Code. They say that those facts also clearly demonstrate an act of
unlawful aggression by the deceased as well as lack of sufficient provocation on the part of the
accused. These two circumstances, they submit, carve out a good case of incomplete self-defense. 7

Their submission induces approbation. It is borne out by the facts found below. The accused saw the
deceased Quirino Duldulao chasing the former’s son. When the accused approached Duldulao and
asked him why he (Duldulao) was doing so, Duldulao hit the accused with a wooden club on the left
shoulder. The accused drew a sharp- pointed knife he had with him. Then, the deceased clubbed the
accused on the head, which prompted the latter to stab Duldulao on the front. As we see it, the only
element absent to exempt the accused totally from criminal liability under Article 11(1), Revised Penal
Code, is" [r]easonable necessity of the means employed to prevent or repel" the unlawful aggression.

The privileged mitigating circumstance of incomplete self-defense is here present.

3. We now come to assess the penalty that should be imposed.

By the facts, the accused deserves the benefit of Article 69 of the Revised Penal Code. It provides: "A
penalty lower by one or two degrees than that prescribed by law shall be imposed if the deed is not
wholly excusable by reason of the lack of some of the conditions required to justify the same or to
exempt from criminal liability in the several cases mentioned in articles 11 and 12, provided that the
majority of such conditions be present. The courts shall impose the penalty in the period which may
be deemed proper, in view of the number and nature of the conditions of exemption present or
lacking.

"And then, in view of the plea of guilty and voluntary surrender and the absence of any aggravating
circumstance, the accused is also entitled, as Article 64(5) of the same code commands, to a "penalty
next lower to that prescribed by law, in the period that it [the court] may deem applicable, according
to the number and nature of such circumstances." cralaw virtua1aw library

From all this, the defendant prays, and the Solicitor General recommends, a two-degree reduction of
penalty. This is well-taken.

In the past, this Court has found occasion in a number of instances to lower the penalty by one degree
8 or two degrees 9 because of incomplete self-defense (with the concurrence of unlawful aggression
and lack of sufficient provocation, and absent a reasonable necessity of the means employed), but
without having to compute into the penalty other privileged mitigating circumstances.

What about incomplete self-defense coupled with a privileged mitigating circumstance, as in this case?

In People v. Lucero, 49 Phil. 160, 162, incomplete self-defense was accompanied by provocation, a
circumstance analogous to arrebato y obcecacion and youthfulness of the accused (19 years of age at
the time of the trial). This Court reduced the penalty for homicide by two degrees. People v. Jaurigue,
76 Phil. 174, 182-183, was a case of incomplete defense of honor attended by four generic mitigating
circumstances. The penalty for homicide was likewise lowered by two degrees. In People v. Maula
(unreported), L-7191, October 18, 1954, this Court appreciated incomplete self-defense, concurred in
by minority of the accused as a privileged mitigating circumstance and by voluntary surrender. The
penalty of the accused for homicide was also brought down by two degrees.

The standard set down in the cases just discussed gives us the proper course to pursue: A two-degree
reduction of penalty - one degree, by Article 69, and another degree, by Article 64(5). It is the most
reasonable and just for the accused Mariano Oandasan.

4. The crime of homicide is penalized by Article 249 of the Revised Penal Code. The penalty therein
prescribed is reclusion temporal. Two degrees lower is prision correccional, the penalty imposable by
law in the period that the courts may deem applicable, "according to the number and nature" of the
mitigating circumstances. With the mitigating circumstances attendant, we feel that Oandasan’s
penalty should be fixed within the medium period at two (2) years, four (4) months, and one (1) day.

Calling the Indeterminate Sentence Law into operation — whose applicability is based "upon the
penalty actually imposed in accordance with law and not upon that which may be imposed in the
discretion of the court," 10 — the minimum of the penalty then should be within the range of the
penalty next lower in degree, 11 i.e., arresto mayor, which we fix at four (4) months.

5. We cannot close this decision without putting in a good word for defendant’s lawyer, Atty. Antonio
Ma. Azurin. Appointed counsel de oficio below, he volunteered to prosecute defendant’s appeal by
seeking a new appointment as such counsel on the appellate level. Conscientious and diligent in
championing defendant’s rights below and on appeal, his actuations present an exemplary case of
devotion to duty. They are those of a worthy member of the Bar.
Upon the record as it stands, the lower court judgment rendered against the accused Mariano
Oandasan is hereby modified; and he is hereby sentenced to an indeterminate penalty of four (4)
months of arresto mayor as minimum, to two (2) years, four (4) months and one (1) day of prision
correccional as maximum, with the accessories of the law. In all other respects, the decision below is
affirmed.

No costs in this instance. So ordered.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Castro, Angeles, Fernando and Capistrano, JJ., concur.

Dizon, J., did not take part.

G.R. No. 193134, March 02, 2016

RAFAEL NADYAHAN, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

RESOLUTION

PEREZ, J.:

For review is the Decision1 of the Court of Appeals dated 17 December 2009 affirming
the Judgment2 dated 5 February 2008 of the Regional Trial Court (RTC), Branch 34 of
Lagawe, Ifugao finding petitioner Rafael Nadyahan guilty beyond reasonable doubt of
homicide.

In an Information3 filed by the Assistant Provincial Prosecutor on 2 July 2004, petitioner

was charged with homicide, thus:
chanRoblesvirtualLawlibrary

That on or about the evening of May 26, 2004, at Banaue, Ifugao and within the
jurisdiction of this Honorable Court, the above-named accused, armed with a knife and
with intent to kill DID then and there willfully, unlawfully, and feloniously attack and
stab one Mark Anthony D. Pagaddut inflicting multiple stab wounds on his body that
caused his death thereafter.
When arraigned, petitioner pleaded not guilty to the charge.

The defense manifested at pre-trial that while petitioner indeed stabbed the victim, he
did so in self-defense. For this reason, a reverse trial, upon agreement of the parties,
was conducted with the defense presenting its evidence first.

The defense presented petitioner himself as its principal witness and a certain Pedro
Binwag who sought to corroborate the latter's statement.

Their version goes:

In the evening of 26 May 2004, petitioner was driving his motorcycle on the way to
Poblacion with Mark Apilis at his back. As they reached the marker of the junction road
going to Bontoc, they were flagged down by Marcial Acangan (Acangan), who was then
accompanied by Elias Nabejet (Nabejet), Moreno Binwag (Binwag) and Mark Pagaddut
(Pagaddut). Acangan asked petitioner for a ride home and the latter readily obliged.
Acangan further asked that they be treated to a drink. Petitioner refused and explained
that he had already spent his last money on drinks earlier in the day. This angered
Acangan. He slapped petitioner on the forehead and kicked his foot. Petitioner did not
back down. Instead, he got off his motorcycle and prepared to fight Acangan. At that
instance, he saw Acangan's companions pick up pieces of wood. Petitioner then ran
towards Apilis and instructed the latter to start the engine of the motorcycle. Before
petitioner could leave, he was struck on the back with a piece of wood by Nabejet.
Petitioner impulsively took his knife from the windshield of the motorcycle and ran to
the direction of his house. Acangan's group followed him. Upon reaching the parking
area of the KMS Line, petitioner was met by Binwag. Petitioner even managed to ask
Binwag why his group was ganging up on him when he was hit by Pagaddut with a belt
buckle. As petitioner was starting to lose consciousness, he thrust his knife and stabbed
Pagaddut before both of them fell down. Petitioner then got up, wiped his face and
prepared to go home. Fie met Apilis who was driving his motorcycle. Apilis refused to
go with him so petitioner drove the motorcycle away and proceeded towards the house
of a congressman. Petitioner then spent four days in Barangay O-ong before going to
San Jose City in Nueva Ecija to have his wounds treated. Finally, he went back to
Ifugao to surrender.4

Pedro Binwag witnessed a commotion while he was waiting for a jeepney near the
junction road. He saw one person armed with a knife and running towards Bontoc while
he was being chased by two men. The person holding a knife was eventually cornered
by three men and he was struck in the head by a club. While he was about to fall down,
he was bumped by another man holding a swinging object, causing the latter to fall.
Sensing danger, Pedro Binwag immediately left the area. 5

Petitioner presented a medical certificate 6 issued by the hospital in San Jose City to
prove that he suffered a lacerated wound on his forehead.

The prosecution presented Acangan and Nabejet whose version portrayed petitioner as
the aggressor. Acangan narrated that he and Pagaddut had just come from Viewer's
Live Band located at the market where they had a few drinks. Pagaddut went inside the
cab of a tricycle with Acangan as driver. While Acangan was about to start the engine,
petitioner and Apilis, who were riding a motorcycle, approach them. After saying that
he has no problem with Pagaddut, petitioner suddenly wielded a knife. Acangan ran and
petitioner chased him around the tricycle. Pagaddut alighted from the tricycle cab and
tried to start the motorcycle engine. When petitioner saw Pagaddut, he kicked the latter
in the chest. Petitioner turned his ire on Pagaddut and stabbed his upper right buttock.
Nabejet came and tried to hit petitioner with a piece of wood but he missed. Petitioner,
in turn chased Nabejet. Acangan followed them and upon reaching the station of the
KMS Line, he saw petitioner pull the knife from Pagaddut's body. Acangan brought
Pagaddut to the hospital. Pagaddut expired at the hospital. 7

Nabejet recounted that he had just come from a wake and was near Viewer's Live Band
when he saw petitioner, who was armed with a knife, standing near Pagaddut. He took
a piece of wood nearby and approached Pagaddut. He then saw petitioner chase
Pagaddut. He saw petitioner stab Pagaddut in the back causing the latter to fall down.
Petitioner continued stabbing Pagaddut but the latter was able to parry the blows.
Nabejet tried to hit petitioner with a piece of wood but he missed. Petitioner turned his
attention to Nabejet and chased him. Nabejet was able to escape. 8
According to the Certificate of Death, Pagaddut sustained the following injuries:
chanRoblesvirtualLawlibrary

1.  Multiple Stab Wounds, Penetrating, perforating

a.  Right infraclavicular, 7 cm
b.  Right anterior axillary fold, 5 cm
2.      Stab wound, penetrating 3 cm. base of neck right

3.      Stab wound, lateral aspect upper arm, 2 cm.9 ChanRoblesVirtualawlibrary

Dr. Antonio Ligot testified that the victim had three stab wounds: 1) one was
perforating and penetrating wound on the anterior chest wall on the right side; 2) other
is perforating and penetrating stab wound at the base of the right side of the neck; and
3) one was a stab wound on the right upper arm.10

Finding an incomplete self-defense, the trial court found petitioner guilty beyond
reasonable doubt of homicide. The dispositive portion reads:
chanRoblesvirtualLawlibrary

WHEREFORE, there being an incomplete self-defense, ACCUSED, Rafael Nadyahan is

found GUILTY beyond reasonable doubt of Homicide. Pursuant to Article 69 of the
Revised Penal Code and applying the Indeterminate Sentence Law, he is hereby
sentenced to suffer the penalty of imprisonment of four (4) years and two (2) months
of prision correccional medium, as minimum, to eight (8) years of prision mayor
minimum, as maximum. He is likewise ordered to pay the heirs of the victim, Mark
Anthony D. Pagaddut, the amount of Fifty Thousand (P50,000.00) Pesos as civil
indemnity.11 ChanRoblesVirtualawlibrary

The trial court lent credence to the version of the defense that petitioner is not the
aggressor. However, the trial court found that there is an incomplete self-defense on
the part of petitioner. Particularly, the trial court ruled that based on the wounds
sustained by the victim, the means used by petitioner to prevent or repel the attack
was not reasonable. In the imposition of penalty, the trial court considered incomplete
self-defense as a privileged mitigating circumstance and voluntary surrender as an
ordinary mitigating circumstance.

On 17 December 2009, the appellate court rendered its decision affirming petitioner's
conviction.

Petitioner maintains that the court a quo gravely erred: (1) in ruling that there is an
incomplete self-defense; and (2) in sustaining the penalty imposed by the trial court
without considering the circumstances favorable to accused. 12

In its Comment,13 the Office of the Solicitor-General (OSG) defends the ruling of the
appellate court that there is incomplete self-defense. However, the OSG recommends
the modification of the penalty to arresto mayor in its medium period to prision
correccional minimum.

Case law has established that in invoking self-defense, whether complete or

incomplete, the onus probandi is shifted to the accused to prove by clear and
convincing evidence all the elements of the justifying circumstance, namely: (a)
unlawful aggression on the part of the victim; (b) the 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.14
We agree with the trial court that there was unlawful aggression on the part of the
victim and lack of sufficient provocation on the part of petitioner. We quote the
pertinent portion of the decision of the trial court:
chanRoblesvirtualLawlibrary

After a thorough evaluation of the evidence and testimonies from both parties, the
court gives more weight to the account that the accused was not the aggressor. His
narration that Marcial Acangan requested him to take Marcial Acangan home was
supported by the statement in the affidavit of Marcial where the accused said "MUD
PROBLEMA INE TE BARKADA HI MARCIAL' (THERE IS NO PROBLEM WITH THAT
BECAUSE MARCIAL IS A FRIEND). The records do not disclose previous conversation in
Marcial's affidavit to which accused replied with such a statement but it jibes with the
account of the accused that Marcial requested him to take the latter home. It is illogical
that after saying that, accused alighted from the motorcycle and chased his friend with
a knife without any provocation. There was also no mention in Marcial's affidavit that
accused kicked and stabbed the victim. He narrated it in his oral testimony because it
was in the affidavit of the other witnesses. We must bear in mind that Martial was the
companion of the victim as early as when they were inside Viewer's Live Band and was
continuously in close proximity with the victim until the chase started so it is
improbable that he did not mention such incident to the police if it indeed happened. As
to the testimony of the other witness for the prosecution, Eleazar Nabejet, he was
presented to prove lack of sufficient provocation on the part of the victim yet in his
testimony he never mentioned any kicking incident. It is most likely that he arrived late
at the scene to have witnessed the beginning of the altercation and without personal
knowledge to judge who the aggressor was. He does not even have an accurate grasp
of the time of the incident relative to the time they left the house where the wake was,
saying that they left the house where the wake was, saying that they left about 9:00
o'clock and later saying that it was perhaps at 9:55 so that if they reached the road it
was 10:00 o'clock. Finally Dr. Ligot stated in his testimony that there was no stab
wound on the lower back portion of the victim, and that the injuries sustained by the
victim were frontal wounds. This will explain the fact why Martial Acangan, the first
witness for the prosecution offered to answer when asked why he did not mention in his
affidavit the stabbing incident in front of Viewer's Live Band. This testimony, supported
with physical evidence impeaches the testimonies of the two earlier witnesses for the
prosecution. With the inconsistencies of the testimonies of the witnesses for the
prosecution, the court concludes that the oral testimony of Marcial Acangan is not
credible and he adapted it from the story narrated by the other witnesses. With the
foregoing, the court gives full credence to the testimony of the accused that he was not
the aggressor.

Another factor which contributed to the failure of the cause of the prosecution is the
fact that not one of the prosecution witnesses had seen the exchange of blows between
the accused and the victim. The prosecution evidence failed to prove the details on how
the stabbing took place that led to the death of the victim. In fact the first witness for
the prosecution who was supposed to have seen the accused stab the victim and whose
testimony will prove that the accused inflicted the fatal wounds on the victim admitted
in his testimony that he saw only the "last pull of the knife" and then accused went to
his motorcycle. It appeared that during the span of time that the accused and the
victim were facing each other and exchanging blows, the witnesses for the prosecution
were not around to see what happened. Marcial stated that he noticed Moreno Binwag
at the site of the incident. Eleazar Nabejet said he was not around as he was running
back to where the wake was using the pathway near the Viewer's Live band. Moreno
Binwag was not presented as witness. The evidence of both parties however, are one in
saying that there was a chasing incident, one after the other, a few meters from each
other. The court finds it strange that not one of the prosecution witnesses had seen the
exchange of blows between the accused and the victim when they were only a few
meters away from each other. Mr. Moreno Binwag who could have seen it all as he was
the alleged companion of the victim in attacking the accused near the KMS Lines was
not presented[.] In effect, the claim of the accused corroborated by his witness, Pedro
Binwag, that the group of the victim were the aggressors is undisputed.

xxxx

We go next to the other requirement of self-defense to qualify as justifying

circumstance, lack of sufficient provocation on the part of the person defending him.
The same set of testimonies may be appreciated to determine if the accused did not
provide sufficient provocation. The court rules and so holds that there was no sufficient
provocation on the part of the accused to invite the attack from Martial Acangan and his
companions. In fact he acceeded (sic) to the request of Marcial to take him home. His
subsequent refusal or failure to buy drinks as requested definitely is not sufficient
provocation for the attack by the group of the victim. 15
ChanRoblesVirtualawlibrary

Petitioner defends the use of a knife against four (4) men who were armed with a belt
buckle and a club. Petitioner claims that since the aggressors were ganging up on him,
he was put in a situation where he could not control or calculate the blows, nor could he
have had time to reflect whether to incapacitate the victim or hit the less vital part of
his body. Petitioner asserts that a penalty lower by two degrees under Article 69 of the
Revised Penal Code is proper, assuming without admitting, that the evidence warrants
a conviction.

The means employed by the person invoking self-defense contemplates a rational

equivalence between the means of attack and the defense. 16

The following circumstances, as cited by the appellate court, negate the presence of a
reasonable necessity of the means employed to prevent or repel it:
chanRoblesvirtualLawlibrary

First, there is intrinsic disproportion between a knife and a belt buckle. Although this
disproportion is not conclusive and may yield a contrary conclusion depending on the
circumstances, we mention this disproportionality because we do not believe that the
circumstances of the case dictate a contrary conclusion.

Second, physical evidence shows that the accused-appellant suffered only a lacerated
wound on the forehead. Contrary to what the accused-appellant wishes to imply, he
could not have been a defender reeling from successive blows inflicted by the victim
and Binwag.

Third, the victim Pagaddut and his companions were already drunk before the fatal
fight. This state of intoxication, while not critically material to the stabbing that
transpired, is still material for purposes of defining its surrounding circumstances,
particularly the fact that a belt buckle and a piece of wood might not have been a
potent weapon in the hands of a drunk wielder.

Fourth, and as the trial court aptly observed, the knife wounds were all aimed at vital
parts of the body, thus pointing a conclusion that the accused-appellant was simply
warding off belt buckle thrusts and used his knife as a means commensurate to the
thrusts he avoided.

To be precise, the accused-appellant inflicted on the victim: two penetrating and

perforating stab wounds, one at the right infraclavicular, 7 cms. deep, and at the right
anterior axillary fold, 5 cms. deep, anther was at the base of the neck, 5 cms. deep,
and a last one was in the lateral aspect upper arm, 2 cms. deep. The depth of these
wounds shows the force exerted in the accused-appellant's thrusts while the locations
are indicative that the thrusts were all meant to kill, not merely disable the victim, and
thereby avoid his drunken thrusts.17 ChanRoblesVirtualawlibrary

In sum, we do not find any error in the Court of Appeals' ruling with respect to
incomplete-self defense to warrant its reversal. However, we find the need to modify
the penalty it imposed which is four (4) years and two (2) months of prision
correccional medium, as minimum, to eight (8) years of prision mayor minimum, as
maximum.

Article 249 of the Revised Penal Code prescribes for the crime of homicide the penalty
ofreclusion temporal, the range of which is twelve (12) years and one (1) day to twenty
(20) years. Under Article 69 of the Revised Penal Code, the privileged mitigating
circumstance of incomplete self-defense reduces the penalty by one or two degrees
than that prescribed by law. There being an incomplete self-defense, the penalty should
be one (1) degree lower or from reclusion temporal to prision mayor to be imposed in
its minimum period considering the presence of one ordinary mitigating circumstance of
voluntary surrender pursuant to Article 64(2).

Applying the Indeterminate Sentence Law, the maximum of the penalty shall be prision
mayor minimum, the proper period after considering the mitigating circumstance, which
has a range of six (6) years and one (1) day to eight (8) years. The minimum penalty is
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. Thus, the trial court
correctly sentenced petitioner to four (4) years and two (2) months of prision
correccional medium, as minimum to eight (8) years of prision mayor minimum, as
maximum. chanrobleslaw

WHEREFORE, the petition is DENIED and the Decision and Resolution of the Court of
Appeals in CA-G.R. CR No. 31643 dated 17 December 2009 and 21 July 2010,
respectively, are AFFIRMED.

Costs against petitioner.

G.R. Nos. 149430-32             February 23, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
CARMELO CATBAGAN, appellant.

DECISION

PANGANIBAN, J.:
There can be no self-defense, whether complete or incomplete, unless the victim had committed
unlawful aggression against the person who resorted to self-defense.

The Case

Carmelo Catbagan appeals the May 19, 1999 Decision1 of the Regional Trial Court (RTC) of
Malolos, Bulacan (Branch 21), in Criminal Case Nos. 1082-M-98, 1083-M-98 and 1099-M-98. In
these cases, he was convicted of homicide, murder and frustrated murder, respectively.

The decretal portion of the RTC Decision reads as follows:

"In sum and considering the foregoing findings, the Court hereby resolves and so states that the
defense has not been able to overcome the moral certainty established upon the accused’s
culpability. Stated otherwise, the prosecution has successfully discharged its undertaking herein.
Accordingly, this Court finds and so holds that accused Carmelo Catbagan is GUILTY beyond
reasonable doubt of the crimes of Homicide in Crim. Case No. 1082-M-98, Murder in Crim. Case No.
10[8]3-M-98 and Frustrated Murder in Crim. Case No. 1099-M-98.

"In Criminal Case No. 1082-M-98, the Court hereby credits the accused with the mitigating
circumstance of incomplete self-defense pursuant to Article 13, paragraph 1 of the Revised Penal
Code. In which event, what should be imposable as penalty is the minimum of Reclusion Temporal.
Considering the application of the Indeterminate Sentence Law, accused Carmelo Catbagan is
hereby sentenced to suffer the indeterminate prison term of ten (10) years and one (1) day of Prision
Mayor maximum to fourteen (14) years of Reclusion Temporal minimum.

"In Criminal Case No. 1083-M-98, absent any circumstance that would aggravate the commission of
the crime, the accused is sentenced to suffer the penalty of Reclusion Perpetua together with the
accessory penalties.

"In Criminal Case No. 1099-M-98, since the crime committed is Murder in its frustrated stage, it is
the penalty next lower in degree that should be imposed, which is Reclusion Temporal. However,
with the application of the Indeterminate Sentence Law, accused Carmelo Catbagan is hereby
sentenced to suffer the indeterminate prison term of ten (10) years of Prision Mayor medium to
fifteen (15) years of Reclusion Temporal medium.

"In addition to the foregoing, the accused is also directed to pay the heirs of deceased Celso Suico
the sum of ₱500,000.00 in loss of earning capacity, ₱50,000.00 as indemnity for Suico’s death, and
the further sum of ₱100,000.00 as and for moral damages. With respect to deceased Danilo
Lapidante, the accused is ordered to pay his heirs the sum ₱400,000.00 in loss of earning capacity,
the sum of ₱50,000.00 as indemnity for Lapidante’s death, the sum of ₱100,000.00 as moral
damages, and also the amount of ₱50,000.00 x x x for actual damages. Finally, respecting
complainant Ernesto Lacaden, the accused is directed to pay him the sum of ₱50,000.00 as and for
moral damages and the sum of ₱6,400.86 as actual damages.

"With costs against the accused."2

Except for the names of the victims, two (2) similarly worded criminal Informations3 in Criminal Case
Nos. 1082-M-984 and 1083-M-98,5 both dated July 21, 1998, charged appellant as follows:

"That on or about the 15th day of March, 1998, in the [M]unicipality of San Jose del Monte,
[P]rovince of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, armed with a gun, caliber .9MM pistol, and with intent to kill one x x x, did then and
there wilfully, unlawfully and feloniously, with evident premeditation and treachery, attack, assault
and shoot with the said caliber .9MM pistol said x x x, hitting the latter on the different parts of his
body, thereby inflicting upon him mortal wounds which directly caused the death of the said x x x."6

For the third crime, the Information,7 also dated July 21, 1998, charged appellant with frustrated
murder allegedly committed in this manner:

"That on or about the 15th day of March, 1998, in the [M]unicipality of San Jose del Monte,
[P]rovince of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, armed with a caliber .9MM pistol, did then and there wilfully, unlawfully and
feloniously, with intent to kill, evident premeditation and treachery, attack, assault and shoot with the
said caliber .9MM pistol one Ernesto Lacaden y Tacata, thereby inflicting upon him physical injuries,
which ordinarily would have caused the death of the said Ernesto Lacaden y Tacata, thus performing
all the acts of execution which should have produced the crime of murder 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 Ernesto Lacaden y Tacata which prevented his death."8

Appellant was arraigned on August 26, 1998 in Criminal Case Nos. 1082-M-98 and 1083-M-98. With
the assistance of counsel de oficio,9 he pleaded not guilty to both charges.10 Thereafter, he was
arraigned in Criminal Case No. 1099-M-98, in which, with the assistance of his counsel de
oficio,11 he also pleaded not guilty.12

Upon motion of appellant, the three cases were consolidated. After pretrial, trial on the merits
ensued, and the lower court eventually promulgated its assailed Decision. Counsel13 for appellant
filed the Notice of Appeal14 on July 5, 1999, but upon discovering that it contained an error in the
designation of the court to which the case was being appealed, he filed an amended Notice of
Appeal on September 10, 1999.15

The Facts

Version of the Prosecution

In its Brief,16 the Office of the Solicitor General (OSG) presents the prosecution’s version of the facts
as follows:

"Danilo Lapidante, an employee of the Manila Water Company, held his birthday party on March 15,
1998, one day in advance of his actual birthdate. That was intended to accommodate his many
relatives and friends who trooped to his residence that Sunday at Block 5, Lot 28, Phase C-1
Francisco Homes, Barangay Mulawin, San Jose del Monte, Bulacan Province. As it was already
summertime, and on account of the big attendance, the party had to be held in a vacant space within
the fenced perimeter, with vehicular and pedestrian steel gates. In front thereof was a narrow
concrete street.

"Inasmuch as Lapidante saw to it that drinks like gin and beer and appetizers were plenty, even
before 10:00 A.M., inevitably, the revelers were already displaying excitement. Some were engaged
in singing over a ‘karaoke,’ while one Sgt. Celso Suico of the Philippine Air Force and of the elite
Presidential Security Group, who lived in another phase of the subdivision, demonstrated his
exuberance by firing shots into the air with his Armalite rifle. Since the gunshots continued to ring
out, and election gun ban was then in effect, the attention of Carmelo Catbagan, an investigator of
the Criminal Investigation Service, Philippine National Police, whose residential unit was just one
block away south of the Lapidantes, was called.
"When, by 5:00 p.m., Catbagan went there to verify from the group who among them had been firing
the rifle, no one of those within the fenced area gave a positive answer. The embar[r]assed
Catbagan left the place. Coincidentally, some minutes before that, Lapidante, driving his owner-type
jeep, conducted home some of his guests. Accompanying him were Sgt. Suico and his companion
Ernesto ‘Jun’ Lacaden. Even as they returned the Armalite to the PSG’s residence at Phase M,
Suico substituted it with a government-issued Springfield .45 caliber pistol which he tucked to his
waistband as they went back to rejoin the party.

"By about 5:30 p.m., while the celebrants were being entertained with a song by the eldest daughter
of Lapidante, Catbagan with [Zosimo] (Jess) Fababier returned to Lapidante’s place on board a
motorized tricycle. This time, after he alighted on the street in front, when Catbagan inquired about
the gunshots of the Armalite, Sgt. Suico answered that ‘It’s nothing; it’s just a part of the celebration’.
Suddenly, a piece of stone hurled from the direction of the celebrant’s house landed on a tree and
thence to the body of Catbagan. Irritated and reacting thereto, the CIS agent directed Fababier to
look for the one who threw the stone.

"At that moment, Sgt. Suico got out of the pedestrian steel gate and extended his hand towards
Catbagan in the street as he introduced himself as being a PSG. Completely ignoring the gesture of
the latter, Catbagan drew out his .9mm automatic pistol and with both hands holding the gun, fired
successively at Suico, who when hit stretched out his hand, shouting ‘Huwag (Don’t) Pare.’ Despite
this Catbagan fired more shots at the victim who fell on the pavement, bloodied and dying from
mortal wounds.

"As the shots were fired, Jun Lacaden who was taking a nap on the front seat of the owner-type jeep
parked on the other side of the street, in front of the residential unit of Aida Villanueva, was abruptly
awakened. Not fully aware of what happened, he disembarked therefrom without knowing what to
do. Unexpectedly, two shots were also fired at him by Catbagan. One bullet found its mark in the
body of Jun Lacaden who then fell down.

"Almost simultaneously, Catbagan directed his attention to Lapidante who was then inside their
compound in the vicinity of their steel main gate. Upon the prompting of his wife Rosita for him to run
and evade the assailant, the celebrant turned towards the main door of their house. But before he
could reach the safety of their abode, two rapid shots were aimed by Catbagan at him, one of which
hit him in the upper part of his body.

"After causing the mayhem, Catbagan then proceeded eastward to the main road. Thereupon,
Charles Lacaden picked up the weapon of the PSG man and threw it to a vacant lot somewhere at
the rear of the house and lot of Lapidante. As a consequence of the injuries they sustained, Sgt.
Suico died on the spot; Lapidante later died in the hospital in Lagro, Quezon City; whereas Jun
Lacaden had to be treated and confined at the East Avenue Medical Center, Quezon City.

"Police investigators went to the scene and there recovered some pieces of evidence.

The .45 caliber Springfield pistol of Suico was retrieved in a place at the back of the Lapidante
residence. With a bullet vertically standing on the chamber, it had misfired due to some vital defects.
There were six (6) live ammunitions of the .45 caliber pistol excluding the vertical one. No empty
shell of .45 caliber pistol were recovered. There were nine (9) empty shells of the .9 mm pistol; and a
deformed slug of the same weapon, aside from many shells from the Armalite rifle.

"Upon examination of Sgt. Suico’s body, Dr. Dominic Aguda of the National Bureau of Investigation
found four (4) gunshot wounds, to wit:
 No. 1 - left upper chest;

No. 2 - left chest above left nipple;

No. 3 - left anterior portion of forearm;

No. 4 - right palm (inside)

"Dr. Aguda concluded that the victim died from massive bleeding of the four injuries. The most fatal
was wound No. 1 as it perforated the aorta and the right upper lung. Death therefrom was
instantaneous. He opined that this wound was inflicted in a level from a higher plane, whereas the
others may have been inflicted on some level with the victim. Suico died of massive bleeding.

"As regards the victim Lapidante, as shown by Dr. Aguda’s schematic sketch and the post-mortem
autopsy report, the entry wound was at the left side of the back, exiting at the right anterior portion of
the chest in a forward and upward trajection. The bullet hit the upper left tube of the left lung and
then penetrated the upper lobe of the right lung. The victim also died from massive bleeding.

"From the shapes and measurement of the wound of entry, Dr. Aguda stated that the (weapon)
firearm used in the shooting of the two victims were probably the same, they being approximately 1 x
1 cm.

"With respect to Jun Lacaden, Dr. Cristina Atienza of the East Avenue Medical Center found that he
was hit at the right side of the back, the scapular and the bullet exited at the uppermost part of the
left arm, near the armpit. She said that as the slug entered the thoracic cavity, they had to insert a
tube to evacuate blood. Said victim was confined for more than one week, and it would have taken
another 30 days for the victim to resume his usual activity."17

Version of the Defense

Appellant argues that he was justified in shooting the victims, as he was merely defending himself
and fulfilling his sworn duties. On the basis of these justifying circumstances, he insists on his
acquittal. In his Brief,18 he summarizes his version of the facts as follows:

"The defense had a different version of the circumstances that led to the shooting incident on March
15, 1998. On said date, between 9:00 and 11:00 in the morning, ERNESTO PURBOS heard
successive gunshots coming from the residence of Danilo Lapidante at San Francisco Homes, San
Jose del Monte, Bulacan. The gunshots numbered about ten (10) in the span of two (2) hours.
Alarmed and scared, as there were children then playing in the vicinity, he went to the house of
Carmelo Catbagan to report the gun firing incident. He pleaded Catbagan, known in their place as a
policeman, to maintain the peace in the neighborhood. He was worried that the children might be hit
accidentally by the revelry. Catbagan retorted not to mind the revelers, as they were just drinking. He
then went home.

"At around 4:00 in the afternoon, he again heard successive gunshots coming from the house of the
Lapidantes. The gunshots were louder and rapid in succession. Fearing for the safety of the children
playing in the vicinity, he again proceeded to the house of Catbagan, pleading the latter to pacify or
maintain order in the place. Catbagan replied that he would call the attention of the Barangay
Captain and advised him to go home.
"ZOSIMO PAVABIER corroborated the testimony of witness Ernesto Purbos. On March 15, 1998,
between the hours of 9:00 and past 11:00 in the morning, he heard several gunshots coming from
the house of Danilo Lapidante. The reverberating gunshots were again heard at around 4:00 in the
afternoon, prompting him to go out to the street to observe the commotion. In the street, he saw
children playing as well as a group of his neighbors talking about the gunshots coming from the
house of the Lapidantes. The neighbors were complaining that the children might be accidentally hit
and that there was a gunban. On his way home, he met Carmelo Catbagan, who asked if he would
accompany him to the barangay captain to report the incident. Catbagan was then limping and there
was something bulging in his waist. They proceeded to the house of the barangay captain onboard a
tricycle. Upon reaching the place, the wife of the barangay captain informed them that her husband
left for the police precinct and instructed them to proceed to the house of the Lapidantes as the
barangay captain might be already there. Catbagan then told him to proceed to the barangay hall to
call upon the tanods, but the place was closed. They then proceeded to the house of Danilo
Lapidante.

"At the residence of the Lapidantes, they found several persons engaged in a drinking session.
Catbagan then introduced himself as a CIS and inquired who fired the firearm. The merrymakers
ignored Catbagan and continued their merrymaking. Seconds later, somebody threw a fist sized
stone at Catbagan, hitting the lat[t]er on the shoulder. The stone came from the side of the kitchen of
the Lapidantes. Catbagan directed him to find out who threw the stone. After he had taken five
steps, he saw Danilo Lapidante emerge from the side of the kitchen, rushing towards Catbagan.
About the same moment, Jun Lacaden and Celso Suico were likewise proceeding towards the gate.
Lacaden then went on the side of Catbagan, who was stepping backward, while Suico, uttering that
he is a PSG, drew his .45 caliber pistol and cocked it. Instinctively, Catbagan drew his gun and fired
at Suico, hitting the latter with three shots. Lacaden, who was attacking Catbagan from the side, was
shot by the latter once. Seeing what happened to his companion, Danilo Lapidante hurriedly
retreated towards his house, shouting repeatedly ‘akina iyong mahaba’. Catbagan made one shot
upward, yelling at Lapidante, ‘pare, pare, huwag kang tatakbo’. As Lapidante continued proceeding
towards his house, Catbagan fired at him once. Taken aback by the sudden turn of events, he
retreated towards his house and just peeped over the window. He then saw Catbagan rushing
towards his own house, gather his children and leave. At around 6:30 in the evening, he was picked-
up by police authorities for investigation.

"JONATHAN BELLOSILLO, the Barangay captain of Barangay Mulawin, Francisco Homes San
Jose del Monte, Bulacan, confirmed that a complaint/report was made by Carmelo Catbagan at his
home office, anent a gunfiring incident, at around 4:30 in the afternoon of March 15, 1998. The
Barangay Captain likewise testified on the several complaints he received against Danilo Lapidante,
for conducting gambling and Jun Lacaden, for mauling incidents.

"The accused, CARMELO CATBAGAN, testifying on his behalf, averred that he is a regular agent of
the Criminal Investigation and Detection Group (CIDG), with a rank of Crime Investigator I. As a
regular agent of the CIDG, he was issued two (2) official firearms, a 9MM Jericho pistol and a.38
caliber revolver. His principal duties were to protect the innocent against deception, [and] against
violence, arrest felons, and in general, to respond to all calls for public assistance.

"On March 15, 1998, he was at his residence at Block 5, Lot 11, Phase 6-1, Francisco Homes, San
Jose del Monte, Bulacan, tending to his five (5) children. His wife was then in the province. At
around 9:00 to 11:00 in the morning, he heard several burst[s] of gunfire coming from the direction of
the rear portion of his house. A neighbor, Ernesto Purbos, then came to his house complaining
about the gunshots. ‘Manong Erning’ wailed that the gunshots might accidentally hit the children
playing in the street. Having told from where the gunshots came from, he pacified the complainant
telling him that the revelers were just engaged in merrymaking and that they will just stop later on.
Ernesto Purbos then went home.

"The peace in the vicinity was again disturbed at around 4:00 in the afternoon of the same day. Loud
burst of rapid gunshots, to the tune of the song ‘Let’s Go’, were again heard coming from the same
direction as that in the morning. From his experience, he knew that the firearm used was an armalite
(M-16). Two of their neighbors came to him complaining about the gunshots. He advised them to go
to the barangay captain and he will just follow after finishing his chores. He then heard a woman
scream, complaining that the shots were being directed towards the firewall of the house
neighboring that of the Lapidantes. Ernesto Purbos likewise returned, echoing his previous
complaint about the gunshots. He assured Purbos that he would act on his complaint, but first he
would go to the barangay captain to report the incident. He then got his service firearm and went out.
On his way to the house of the barangay captain, he met Zosimo Pavabier, who likewise complained
of the gunshots. He asked Pavabier to accompany him and the two of them proceeded to the house
of the said official. When they reached their destination, however, the wife of the barangay official
told them that her husband has gone to the Police on the Block Headquarter. Learning the purpose
of their visit, the wife told them to just proceed to the vicinity in question as her husband might
already be there. On their way, they went by the barangay hall to fetch some ‘tanods’, but the place
was closed. They then proceeded to the house of the Lapidantes.

"Upon reaching the house of the Lapidantes, Catbagan and Pavabier noticed that the Barangay
Captain was not yet there. They likewise noticed that there were several persons having a drinking
spree inside the compound. Catbagan introduced himself as a CIS and inquired upon the group who
fired the gunshots. The merrymakers, however, ignored him and laughed. As he was telling the
group that: ‘Don’t you know there are many residents here and you might hit somebody’, a fist sized
stone was thrown which hit his left shoulder. The stone came from the rear of the house of the
Lapidantes. Alerted by the hostility of the crowd, he instructed Pavabier to look for the one who
threw the stone at him. As Pavabier was about to comply with his instructions, Danilo Lapidante
emerged from the side of his house and rushed to where he was standing, uttering: ‘ano ba ang
problema pare?’ About the same time, two more persons suddenly came out of the compound of the
Lapidantes, rushing and encircling him. One of the aggressors, Ernesto Lacaden, was toting an ice-
pick on one hand and positioned himself at his side. The other, whose identity he did not kn[o]w at
that moment, went straight to him, drew a gun from his waist and cocked it, after which, aimed the
pistol at him, uttering ‘Pare PSG ito’, in an arrogant voice. Threatened of his safety, he drew his own
gun while stepping backward and fired at the aggressors.

"Simultaneously, Danilo Lapidante retreated towards his house, shouting: ‘Akina yung mahaba, yung
mahaba’, while Jun Lacaden attacked him coming from the side, with the ice-pick. Catbagan side
stepped and fired a shot at Lacaden before turning his attention at Lapidante. He fired a warning
shot, uttering: ‘Tumigil ka, huwag kang kikilos’. Lapidante, however, did not heed Catbagan’s
warning and continued rushing towards his house, as if to get something. Fearing that Lapidante
might be able to get hold of the long gun, Catbagan fired a shot at him once.

"Concerned for his safety and that of his family, Catbagan brought his five children to the house of
his sister in Malabon, Metro Manila. He then surrendered himself and his firearms to his superior
officer at the CIDG Office.

"ATTY. VIRGILIO PABLICO Y TABALBA, Chief of the CIDG Legal Office and immediate superior
of the accused, testified on the latter’s official duties and functions as well as his voluntary surrender
on March 16, 1998[.] Accordingly, accused Carmelo Catbagan was appointed as a regular and non-
organic member of the CIDG, with a rank of Criminal Investigator I. His official functions include the
authority to conduct investigation of cases involving violations of the Revised Penal Code and other
special laws, to effect arrest and to conduct search in accordance with existing rules, to take sworn
statements and to appear as a witness in appropriate forum. As a regular agent, Catbagan was
issued and authorized to carry a firearm. The issued firearm to Catbagan was a 9MM Jericho pistol,
with Serial No. 000748. Catbagan, as a CIDG agent, was likewise deputized by the COMELEC and
granted an exemption to carry firearm during election period.

"On March 15, 1998, at around 8:00 to 10:00 in the evening, he received a telephone call from Agent
Catbagan, informing him that he was involved in a shooting incident, wherein he was able to shoot
three (3) persons. Two (2) of the protagonists allegedly died and the other was wounded and taken
to a hospital. Catbagan intimated that he wanted to be put under his custody as soon as he made
arrangements for his children’s security. On March 16, 1998, at around 1:00 in the afternoon,
Catbagan presented himself to Police Superintendent Edgardo Acuña together with his service
firearm."19

Ruling of the Trial Court

The RTC held that appellant did not know who had fired the gunshots at Lapidante’s party; thus, he
could not claim that he had gone there to perform his duty to make an arrest. Consequently, it
brushed aside his defense of fulfillment of duty, or lawful exercise of a right or office. It did not give
credence, either, to his invocation of self-defense.

With respect to Celso Suico in Criminal Case No. 1082-M-98, the trial court ruled that there was
unlawful aggression on the part of the victim, but that the means employed to repel such aggression
was unreasonable. It "entertain[ed] serious doubts on the right of the [appellant] to continue firing at
Suico after the latter was dispossessed of his gun due to the injuries received from the gunfire of the
assailant."20 It credited appellant with incomplete self-defense, because he supposedly lost the right
to kill or even wound the victim after the unlawful aggression had ceased.

The RTC refused to qualify the crime against Suico. Ruling that there had been no evident
premeditation and treachery in the killing, it found appellant guilty only of the crime of homicide.

As regards the victim Danilo Lapidante in Criminal Case No. 1083-M-98, he was undisputedly
unarmed, as he was inside his own premises -- within his fenced front yard -- at the time of the
incident. Thus, the lower court found no act of aggression on his part. It held that "the belief on the
part of [appellant] that the victim was about to retrieve a rifle from the doorside of the house, existed
only in his imagination."21 Consequently, "there was no moment for [appellant] to validly state that his
own life [was] in imminent danger from Lapidante."22

Aside from rejecting self-defense, the trial court also held that treachery had attended the killing,
because the unarmed victim had unexpectedly been shot while his back was towards appellant.

Finally, in Criminal Case No. 1099-M-98, the court a quo found that Ernesto Lacaden had been shot
in the back, apparently while "in the act of fleeing from the fury of gunfire from [appellant]."23 It did not
accept the allegation that the victim had been carrying an ice pick at the time of the shooting.
Nonetheless, it explained that even if he indeed had one at the time, he could not have done any
real harm to appellant who was just too far from him. Absent any clear and convincing proof that
Lacaden committed unlawful aggression, self-defense -- whether complete or incomplete -- could not
be appreciated.

The RTC found the crime against Lacaden to be qualified by treachery, as he had not posed any
imminent danger to appellant. It ruled that treachery was proven by the following circumstances: (1)
the fact that the victim was running away from the scene of the crime; and (2) appellant’s use of
his .9 mm automatic pistol, a lethal weapon used to wound the former’s vital organs. Since death did
not ensue by reason of causes independent of the will of appellant, the court a quo found him guilty
of frustrated murder.

Hence, this appeal.24

The Issues

Before us, appellant assigns to the trial court the following alleged errors for our consideration:

"I

The court a quo gravely erred in finding accused-appellant Carmelo Catbagan guilty beyond
reasonable doubt of the offenses charged in Criminal Case Nos. 1082-M-98, 1083-M-98 and
1099-M-98, respectively.

"II

The court a quo gravely erred in failing to rule that accused-appellant Carmelo Catbagan
acted in the fulfillment of his sworn duties and/or acted in self-defense in the commission of
the offenses charged.

"III

Granting arguendo that the accused-appellant’s guilt was proven beyond reasonable doubt,
the court a quo still committed a reversible error in not considering the attendance of the
mitigating circumstance of voluntary surrender in the imposition of the appropriate penalties
for the offenses proved during the trial."25

In sum, the issues to be resolved are as follows: 1) whether appellant was justified in shooting the
victims as a direct result of his "fulfillment of a lawful duty" and "self-defense"; 2) whether he could
be credited with the mitigating circumstance of voluntary surrender; and 3) whether the
characterization of the crimes and penalties imposed by the trial court was correct.

The Court’s Ruling

The appeal is partly meritorious.

First Issue:

Fulfillment of a Lawful Duty

In criminal cases, the prosecution has the burden of establishing the guilt of the accused beyond
reasonable doubt. But once the commission of the act charged is admitted, the burden of proof shifts
to the accused, who must now prove the elements of the justifying circumstances cited.26

Appellant invokes his lawful performance of duty as one such circumstance, arguing that "his
presence at the scene of the incident, prompted by the complaints in their neighborhood and his own
personal knowledge relative to the wanton discharge of a firearm, the effectivity of the election gun
ban, his coordination with the authorities of the barangay, and the inquiry he made to the revellers,
were all in consonance with the legitimate performance of a sworn duty."27 Citing these specific facts,
he argues that he was justified in shooting the victims. In effect, his contention is that, being a
regular agent of the Criminal Investigation and Detection Group (CIDG) of the Philippine National
Police (PNP), he was justified in maintaining public order, as well as in protecting and securing life
and property.

Although he is correct in arguing that he had the legal obligation to maintain peace and order, he
was not justified in shooting the victims. Article 11 of the Revised Penal Code (RPC) provides that a
person who acts in the fulfillment of a duty or in the lawful exercise of a right or office does not incur
any criminal liability. Two requisites must concur before this defense can prosper: 1) the accused
must have acted in the performance of a duty or in the lawful exercise of a right or office; and 2) the
injury caused or the offense committed should have been the necessary consequence of such lawful
exercise.28

These requisites are absent in this case. Appellant was not performing his duties at the time of the
shooting, because the men he shot had not been indiscriminately firing guns in his presence, as he
alleges. Further, as found by the RTC, "nothing was mentioned in [his] direct testimony that he was
there to effect an arrest."29 Said the trial court:

"While he might have heard of gunfire, since there is no proof to the effect that Catbagan had
personal knowledge that it was Suico who had been firing the Armalite, under no circumstances may
it be said that the accused was justifiably there to perform the duty of making the arrest in
accordance with existing laws and rules."30

At most, appellant was in the house of the Lapidantes to determine who had fired the gunshots that
were heard by the neighborhood. But the fatal injuries that he inflicted on the victims were not a
necessary consequence of the performance of his duty as a police officer.

Indeed, his "presence at the scene of the incident [was] all in the legitimate performance and
fulfillment of a sworn duty."31 He was duty-bound to find out who had fired the gun that day and to
maintain peace and order in the neighborhood. But his act of shooting of the victims cannot be
justified. His presence at the scene of the incident should be distinguished from his act of shooting
them.

Appellant cites People v. Cabrera32 to support his argument that he was performing his duty and was
thus justified in shooting the victims. There is an important distinction between the present case and
Cabrera. In the latter, the disturbance had been created by the victim in the presence of the
accused, who therefore had the duty to immediately intervene and subdue the former, who was
causing danger. In the present case, appellant had no personal knowledge of who had fired the
gunshots. Thus, his duty at the time was simply to determine who was the subject of the complaints
of the residents of the village. It was never shown, though, that the shooting was in furtherance of or
was a necessary consequence of his performance of such duty.

To be sure, 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 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.33
Second Issue:

Self-Defense

Appellant also invokes the principle of standing one’s ground when in the right. Allegedly, since he
had the right to be where he was, "the law does not require him to step aside when his assailant is
rapidly advancing upon him with a deadly weapon."34 We clarify. Article 11 of the RPC provides:

"ART. 11. Justifying circumstances. – The following do not incur any criminal liability:

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

First. Unlawful aggression;

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

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

In self-defense, proof by clear and convincing evidence is incumbent upon the accused.35 Appellant
cannot rely on the weakness of the evidence for the prosecution, which can hardly be disbelieved
after he himself admitted that he had shot the victims.36 A judicial confession constitutes evidence of
a high order, on the presumption that no sane person would deliberately confess to the commission
of an act unless moved by the desire to reveal the truth.37

As the RTC correctly did, we should look at the circumstances of the shooting in the case of each
victim.

Circumstances Surrounding the Death of Suico

The first requisite of self-defense is unlawful aggression by the person who is eventually injured or
killed by the accused.

This Court is convinced that the RTC’s finding of unlawful aggression on the part of Suico is
supported by the records, and we see no reason to disturb those findings. Ruled the lower court:

"Under the given situation wherein the Sergeant cocking the pistol was one who was trained, and
skilled in the handling of guns, plus the fact that he was drunk, the Court cannot blame accused
Catbagan to believe and fear that Suico would attack him in that mock introduction."38

The prosecution presented, in fact, conflicting accounts of how Suico had been shot. The shooting
allegedly happened after he had offered a handshake to appellant,39 according to Rosita Lapidante,
the wife of another victim. On the other hand, Charlie Lacaden, the brother of still another victim,
gave testimony that conflicted with hers. Suico was allegedly shot by appellant when the former
turned his back to the latter.

On the other hand, appellant40 and Defense Witness Zosimo Pavabier41 positively and consistently
testified that it was Suico who had first drawn and aimed his gun at appellant. This assertion was
confirmed by the physical evidence that the victim’s gun had a live bullet sandwiched between its
breechblock and chamber.42 This fact proves that the gun was cocked and fired, but that the bullet
was jammed in the process.
The prosecution tried to explain this occurrence by inconsistent and incongruous statements.
According to the testimony of Rosita, Charlie took the gun from Suico’s belly then aimed it at
appellant, but the gun did not fire because it was defective.43 According to the testimony of Charlie,
on the other hand, he took the gun because he was afraid that appellant would come back, but that
he later threw it towards the rear portion of the house.44 Thus, the RTC concluded:

"As regards the proof that Suico’s gun misfired due to vital defects in its mechanism, the Court
suspects that the firearm was tampered with to create the scenario that the PSG man was without
fault. In fact, Mrs. Lapidante and Charles Lacaden’s testimonies regarding what was done to the gun
after the incident are in conflict with each other."45 (Italics supplied)

Unlawful aggression is an actual physical assault, or at least a threat to inflict real imminent injury,
upon a person.46 In case of threat, it must be offensive and strong, positively showing the wrongful
intent to cause injury -- as in this case. Thus, Suico’s act of aiming a cocked gun at appellant is
sufficient unlawful aggression.

The second element of self-defense -- reasonable necessity of the means employed to prevent or
repel it -- requires the following: 1) a necessity of the course of action taken by the person making
the defense and 2) a necessity of the means used. Both the course of action taken and the means
used must be reasonable.47

Appellant argues that he was justified in wounding Suico, because the latter was armed with a
deadlier weapon and was still persistently aggressive after being shot the first time. The former
maintains that "[t]he fact that [he] struck one blow more than [what] was absolutely [necessary] to
save his own life, or that he failed to hold his hand so as to avoid inflicting a fatal wound where a
less severe stroke might have served the purpose, would not [negate] self-defense, because [he], in
the heat of an encounter at close quarters, was not in a position to reflect coolly or to wait after each
blow to determine the effects thereof."48

The means employed by the person invoking self-defense is reasonable if equivalent to the means
of attack used by the original aggressor.49 Whether or not the means of self-defense is reasonable
depends upon the nature or quality of the weapon, the physical condition, the character, the size and
other circumstances of the aggressor; as well as those of the person who invokes self-defense; and
also the place and the occasion of the assault.50

The RTC made a definitive finding on the unreasonableness of the means employed by appellant as
follows:

"However, what followed, as testified by witnesses was that Catbagan continued firing even while
Suico was pleading ‘Huwag pare!’ with outstretched hand and open palm of his right hand. While the
accused asserted that he had to fire his gun and hit Suico with more shots to totally disable him, the
same cannot be believed by the Court, if we take stock of Dr. Aguda’s testimony that with the injured
arm and that on the chest being inflicted with the first ‘double tap’ shots; the victim would have had
much difficulty to retaliate. In fact, Catbagan himself stated on clarification questions that the .45
caliber gun of the victim fell already so that the threat of continued aggression was no longer
present.

x x x           x x x          x x x

"On this point, the Court entertains serious doubts on the right of the accused to continue firing at
Suico after the latter was dispossessed of his gun due to the injuries received from the gunfire of the
assailant. Additionally, we cannot accept as credible Catbagan’s statement that he had to fire again
at Suico inasmuch as the latter had stooped acting to pick up his own pistol from the pavement. If
ever the victim was positioned that way, it was more of the impact of the bullets that hit him. The
logical explanation can be derived from the presence of the entry wound in the inside of Suico’s right
palm."51

These findings are well-supported by the evidence on record. Clearly, the nature and the number of
gunshot wounds -- debilitating, fatal and multiple -- inflicted by appellant on the deceased shows that
the means employed by the former was not reasonable and commensurate to the unlawful
aggression of the latter. The unreasonableness becomes even more apparent from the fact, duly
admitted by appellant himself, that Suico had obviously been inebriated at the time of the
aggression. It would have thus been easier for the former to have subdued the victim without
resorting to excessive means.

Finally, as to the element of lack of sufficient provocation on the part of the person resorting to self-
defense, appellant has sufficiently established that he went to the house of the Lapidantes to find out
who had fired the gunshots earlier that day. There was therefore absolutely no provocation from him,
either by unjust conduct or by incitement, that would justify Suico’s acts of cocking and aiming a gun
at him.

Not having proven all the elements of self-defense, appellant cannot use it to justify sufficiently his
fatal shooting of Suico. Having proven a majority of the elements, however, the former may still be
credited with a mitigating circumstance in accordance with Article 1352 of the RPC.

Circumstances Surrounding the Shooting of Lapidante

With respect to Lapidante, he allegedly rushed towards his house to get hold of the "mahaba," so
appellant had no other recourse but to shoot him. The purpose of the victim in rushing towards his
house was supposedly to recover the advantage he had previously enjoyed. Hence, it is argued that
unlawful aggression was present.

We disagree with appellant’s averments. Unlawful aggression presupposes an actual, sudden and
unexpected attack or imminent danger thereof. Such aggression refers to an attack that has actually
broken out or materialized or is at the very least clearly imminent; it cannot consist merely of any oral
threat or intimidating stance or posture. 53

In this case, the RTC was categorical in ruling that the perceived danger was more in the mind of
appellant than in reality. The circumstances did not point to any actual or imminent peril to his life,
limb or right. On the part of Lapidante, the act of running towards his house can hardly be
characterized as unlawful aggression. It could not have imperiled appellant’s life.

In a previous case,54 this Court ruled that "a threat even if made with a weapon or the belief that a
person [is] about to be attacked, is not sufficient, but that it is necessary that the intent be ostensibly
revealed by an act of aggression or by some external acts showing the commencement of actual
and material unlawful aggression."55 We agree with the RTC’s ratiocination, which we quote:

"With respect to the incident involving the victim Lapidante, it is not disputed that he was unarmed as
he was inside his own premises within the fenced area in front of his house. What acts of aggression
against Catbagan which he did are not apparent to us. To this Court, the belief on the part of
Catbagan that the victim was about to retrieve a rifle from the doorside of the house, existed only in
his imagination.
"Aside from its intrinsic ambiguity, the claims of the defense witnesses about the alleged utterance of
Lapidante about ‘Ang mahaba!’ an[g] mahaba!’ do not sit well with this Court. Indeed, we are not
convinced that he could have uttered that statement since the evidence points to the fact that he and
his friends had just arrived from another phase of the subdivision upon having delivered thereat, the
Armalite of Suico. On the contrary, Lapidante appeared to have been gripped by fear and was
obviously trying to escape from harm. Indeed, there was no moment for Catbagan to validly state
that his own life [was] in imminent danger from Lapidante."56

Neither do we accept the contention that unlawful aggression by Lapidante was shown by his act of
rushing towards his house for the purpose of taking a more advantageous position. Referred to here
is the rule that if it is clear that the purpose of the aggressor in retreating -- or, as in this case,
Lapidante’s rushing towards his house -- is to take a more advantageous position to ensure the
success of the attack already begun, the unlawful aggression is considered still continuing; and the
one resorting to self-defense has a right to pursue and disable the former.57

Obviously, this rule does not apply to Lapidante, because 1) there was no clear purpose in his act of
retreating to take a more advantageous position; and 2) since he never attacked appellant in the first
place, the former could not have begun any unlawful aggression and, hence, would not have had
any reason to take a more advantageous position. How could there have been a continuation of
something that had never been started? If any aggression was begun in this case, it was by Suico,
not by Lapidante.

Hence, no unlawful aggression by Lapidante was shown. Because the presence thereof is a
statutory and doctrinal conditio sine qua non of the justifying circumstance of self-defense58 --
complete or incomplete -- we need not examine the presence of the other requisites.

Circumstances Surrounding the Shooting of Lacaden

Appellant asserts that Lacaden attacked him with an ice pick from the side. Allegedly, this act clearly
showed unlawful aggression on the latter’s part. All the pieces of evidence on record, however, point
to the absence thereof.

Most crucial is the position of the gunshot wound. As testified to by the doctor who had treated the
victim, its point of entry was on the right side of the back, just below the scapula.59 This incontestable
fact belies the claim of appellant that he was attacked by Lacaden with an ice pick. Such attack
would have required the latter to face him; and, logically, a gunshot entry wound would have been in
the front -- not in the back -- portion of Lacaden’s body. The wound in the back of the victim clearly
shows that he was shot while his back was turned to appellant. Hence, there was no unlawful
aggression on the part of the former.

Neither was any ice pick presented in the proceedings before the RTC. Appellant maintains that his
testimony, coupled with that of Pavabier, is sufficient to establish the existence of the weapon. But
the prosecution witnesses, including the victim himself, testified otherwise -- that there was no
unlawful aggression during the incident, much less with the use of an ice pick. The RTC held thus:

"In the case of Jun Lacaden, he was shot in the back which could only corroborate the evidence to
the effect that he was also in the act of fleeing from the fury of gunfire from Catbagan. As to the
allegation of the latter that Jun Lacaden had an icepick, that claim is rather nebulous. Firstly, as
veteran criminal investigator, he should have taken, kept and presented that said instrument to
augment his legal excuse. Secondly, if really there was one, it is rather surprising why he did not
demand Jun Lacaden for its surrender initially as he passed thru the pedestrian steel door and
subsequently while the latter had positioned himself near the owner-type jeep.
"More importantly, granting that Jun Lacaden had an icepick, and/or had any design to launch an
attack against Catbagan, the former was just too far a distance away to do real harm to the accused.
From 6-7 meters, as clarified from the accused himself, it is ridiculous for us to believe that Jun
Lacaden could stab him. More so because the accused himself testified that the two arms of Jun
Lacaden were raised upward which is not to mention that Catbagan had already demonstrated his
proficiency and accuracy in the use of his .9 mm automatic pistol. Thus, there was, like that of
Lapidante, no occasion to find as existing, the element of unlawful aggression."60

Appellant has presented no sufficient reason to overturn these conclusive findings of the trial court.
Aside from being completely in accord with logic and human experience, they are too solid to be
debunked by him.

Third Issue:

Voluntary Surrender

Finally, appellant argues that even on the assumption that his guilt was proven beyond reasonable
doubt, he is still entitled to a mitigating circumstance. According to him, he voluntarily surrendered to
the authorities after the occurrence of the incident, a fact not only uncontroverted but even admitted
by the prosecution.

For voluntary surrender to mitigate criminal liability, the following elements must concur: 1) the
offender has not been actually arrested; 2) the offender surrendered himself to a person in authority;
and 3) the surrender was voluntary.61 It is sufficient that that act be spontaneous and clearly
indicative of the intent of the accused to surrender unconditionally, because there is either an
acknowledgement of guilt or a desire to save the authorities the trouble and the expense that would
necessarily be incurred in searching for and capturing the culprit.62

It was established that on the night after the shooting incident, appellant called up his immediate
supervisor, Atty. Virgilio Pablico, to tell him about the incident that had occurred that afternoon and
to convey the former’s intention to surrender.63 The following day, appellant surrendered himself and
his firearm to Police Supt. Edgardo Acuña, the chief of the Assistant Directorate for
Intelligence.64 This surrender is evidenced by a Progress Report65 signed by Police Chief
Superintendent Efren Quimpo Fernandez.

At the time of his surrender, appellant had not actually been arrested. He surrendered himself and
his firearm to a person in authority, the chief of the Assistant Directorate for Intelligence of the
Philippine National Police. Finally, the surrender was voluntary and spontaneous; it thus showed an
intent to surrender unconditionally to the authorities. In fact, in the aforementioned Progress Report,
appellant had given the same narration of events he later gave in court; moreover, he owned
responsibility for the shooting. Thus, we credit him with the mitigating circumstance of voluntary
surrender.

Final Issue:

Crimes and Penalties

Appellant was convicted of homicide, murder, and frustrated murder for the shooting of Suico,
Lapidante and Lacaden, respectively. In determining the crimes committed and in imposing the
proper penalties, it is necessary to look into the qualifying circumstances alleged in the three
Informations. Treachery and evident premeditation were both alleged; thus, there is a need to
ascertain their presence or absence in the commission of the acts, in order to determine the crimes
committed by appellant.

To establish treachery, the following must be proven: 1) the employment of such means of execution
as would give the person attacked no opportunity for self-defense or retaliation; and 2) the deliberate
and conscious adoption of the means of execution.66 It is also the running case law that where
treachery is alleged, the manner of attack must be proven.67 Such attack must be sudden and
unexpected and without the slightest provocation on the part of the victim, who is thus deprived of
any real chance for self-defense, thereby ensuring the commission of the crime without risk to the
aggressor.68

With respect to the shooting of Suico, there was no treachery. The shooting was perpetrated in a
frontal encounter as shown by the location of his wounds. Appellant did not make any deliberate,
surprise attack against him or consciously adopt a treacherous mode thereof. As established, he
shot the victim after the latter had aimed, cocked and fired a gun at him.

As to the shooting of Lapidante, the RTC qualified the crime to murder because of the presence of
treachery. According to the trial court, the shooting was unexpected, he was unarmed, and his back
was turned towards appellant when the incident occurred. Treachery was also appreciated in the
shooting and wounding of Lacaden, since he had been shot at the back. Further, even if he had
posed no imminent danger to appellant, the former was nevertheless shot with a .9 mm automatic
pistol -- a lethal weapon. For this act, the latter was convicted of frustrated murder.

The mere fact that the attack against Lapidante and Lacaden was perpetrated when their backs
were turned did not by itself constitute treachery or alevosia.69 Whether the mode of attack was
consciously adopted, and whether there was risk to the offender, must be taken into
account.70 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.71

In this case, it is evident that the decision to shoot Lapidante and Lacaden was suddenly arrived at
after the confrontation with Suico had already occurred. Even if the positions of the victims were
vulnerable, there was still no treachery, as appellant did not deliberately adopt such mode of attack.
Its presence was negated by the fact that the shootings had sprung from the unexpected turn of
events. The treacherous character of the means employed does not depend upon its result, but
upon the means itself -- upon appellant’s purpose in employing it.72

Treachery cannot be appreciated where, as in this case, there is nothing in the records that shows
that appellant pondered upon the mode or method of attack to ensure the wounding and the killing of
the victims; or to remove or diminish any risk to himself that might arise from the defense that they
might make.73 His decision to shoot them was clearly sudden. In the absence of treachery, the killing
of Lapidante and the wounding of Lacaden cannot be qualified to murder and frustrated murder,
respectively.

The allegation of evident premeditation was correctly rejected by the lower court. For this
aggravating circumstance to be appreciated, the following must be proven: 1) the time when the
accused decided to commit the crime; 2) an overt act manifestly indicating that the accused clung to
such determination; and, 3) between the decision and the execution, a sufficient lapse of time that
allowed time to reflect upon the consequences of the act contemplated.74 None of these elements
has been established in the case at bar.
Undeniably, the shooting of the victims was done without any prior plan to kill or attack them. As
previously stated, appellant began shooting at them after a cocked gun had been aimed and fired at
him. This fact negates any finding that he had already previously conceived the shooting, and that
he then manifestly clung to his determination to commit the crime after a sufficient lapse of time.

Having rejected both treachery and evident premeditation in the killing of Suico and Lapidante, we
hold appellant guilty only of homicide in both cases. But for the shooting of Lacaden, a careful review
must be made of the crime that was actually committed. The RTC charged him with frustrated
murder and found him guilty thereof; but, as ruled above, no qualifying circumstance was proven.
Thus, his crime can only be frustrated homicide, in which evidence of intent to kill is essential,
however.75 It bears stressing that such intent determines whether the infliction of injuries should be
punished as attempted or frustrated murder, homicide or parricide; or as consummated physical
injuries.76

Homicidal intent must be evidenced by acts that, at the time of their execution, are unmistakably
calculated to produce the death of the victim by adequate means.77

The principal and essential element of attempted or frustrated homicide or murder is the assailant’s
intent to take the life of the person attacked.78 Such intent must be proved clearly and convincingly,
so as to exclude reasonable doubt thereof.79

Although the injury sustained by Lacaden was inflicted by appellant, the facts do not support a
finding that the latter had been impelled by an intent to injure to the point of killing the former. The
intent to kill is absent in this case. It was found that the shooting was sudden and unexpected,
having been brought about by a confrontation between appellant and Suico and the commotion that
ensued. The absence of such intent was, in fact, even more apparent in the testimony of appellant,
who said therein that he did not even look at the victim anymore. The former’s attention was
concentrated on the latter, who was shouting, "Ang mahaba, ang mahaba!"80

The intent to kill, an essential element of the offense of frustrated or attempted homicide, must be
proved by clear and convincing evidence and with the same degree of certainty as that required of
the other elements of the crime.81 The inference that such intent existed should not be drawn in the
absence of circumstances sufficient to prove it beyond reasonable doubt. If it was absent but
wounds were inflicted, the crime is not frustrated murder, but only physical injuries.82 In this case, the
expert opinion of the doctor who treated Lacaden was that it would take the latter thirty days to heal
and recover from the lone gunshot wound and to resume his normal work.83 Thus, a finding of less
serious physical injuries84 is proper.

Although the charge in the instant case is frustrated murder, a finding of guilt for the lesser offense of
less serious physical injuries may be made, considering that the essential ingredients of this lesser
offense are necessarily included in or form part of those constituting the graver one.85 In the same
manner, a conviction may be for slight or serious physical injuries in a prosecution for homicide or
murder, inasmuch as the infliction of the former, when carried out to the utmost degree, could lead to
the latter offense. Such conviction may be made, without intent to kill -- an essential element of the
crime of homicide or murder.86

To summarize, in Criminal Case No. 1082-M-98, appellant is found guilty of homicide, for which the
penalty prescribed is reclusion temporal.87 Since he proved a majority of the elements of self-defense
-- unlawful aggression and lack of sufficient provocation -- the penalty prescribed by law may be
lowered by two degrees88 to prision correccional. Considering further the presence of the generic
mitigating circumstance of voluntary surrender without any aggravating circumstance, the penalty
shall be imposed in its minimum period.89 The Indeterminate Sentence Law is applicable in this case.
Hence appellant should be sentenced to an indeterminate sentence, the maximum term of which
shall be that which may properly be imposed under the Revised Penal Code; and the minimum of
which shall be within the range of the penalty next lower than that prescribed by the Code -- in this
case, arresto mayor.

In Criminal Case No. 1083-M-98, appellant is found guilty of homicide, for which the penalty
prescribed by law is reclusion temporal.90 Again, considering the presence of the generic mitigating
circumstance of voluntary surrender without any aggravating circumstance, the penalty shall be
imposed in its minimum period.91 The Indeterminate Sentence Law is also applicable to this case.
Hence, appellant should be sentenced to an indeterminate sentence, the maximum term of which
shall be that which may properly be imposed under the Revised Penal Code; and the minimum of
which shall be within the range of the penalty next lower than that prescribed by the Code -- in this
case, prision mayor.

Finally, as to Criminal Case No. 1099-M-98, appellant is found guilty of less serious physical injuries,
for which the penalty prescribed by law is arresto mayor. Again, considering the presence of the
generic mitigating circumstance of voluntary surrender without any aggravating circumstance, the
penalty shall be imposed in its minimum period.

Coming now to pecuniary liabilities, the heirs of the victims Suico and Lapidante in Criminal Case
Nos. 1082-M-98 and 1083-M-98, respectively, are entitled to a fixed sum representing civil indemnity
for death. Death indemnity is currently fixed at ₱50,000.92 This kind of civil indemnity is separate and
distinct from other forms of indemnity for damages and is automatically awarded without need of
further proof other than the fact of death and the responsibility of the accused therefor.

Proof of moral damages was presented through the testimony of Lapidante’s wife. The RTC’s award
of such damages herein is excessive, however, considering that it is not meant to enrich an injured
party. 93 Hence, in Criminal Case No. 1083-M-98, the amount thereof should be reduced to ₱50,000.
In the other two cases, there being no proof of moral damages, the award therefor is deleted. Moral
damages cannot be granted in the absence of proof.94

It is also proper to award compensation to the heirs of the victims for loss of earning capacity,
pursuant to Article 2206 of the Civil Code.95 The documents presented, coupled with the testimonies
of Elsie Suico and Rosita Lapidante, are sufficient bases for the award.

At the time of his death, Suico, forty-four (44) years old,96 was receiving a monthly take-home pay of
₱942.70,97 as proven and admitted. To compute his net earnings, we multiply this amount by 12 to
get his annual income; then deduct the reasonable and necessary living expenses which, in the
absence of contrary evidence, is pegged at 50 percent of the earnings. Applying the formula "Net
earning capacity = [2/3 x (80 – age at time of death) x (gross annual income – reasonable and
necessary living expenses)],98 we arrive at a loss of earning capacity of ₱135,748.80.

Applying the same formula to Lapidante who was thirty-five (35) years old99 at the time of his death,
with a monthly take-home pay of ₱10,004.24100 and an additional income of ₱1,000.00 for
slaughtering pigs,101 we arrive at a loss of earning capacity of ₱1,980,763.20. His heirs are also
entitled to actual damages in the amount of ₱13,850 for hospital and funeral expenses. These
expenses are supported by receipts.102 The receipt103 for the amount of ₱6,000 -- which also
mentions a remaining payable balance of ₱6,500 -- was not properly identified and characterized;
thus, we should exclude it from the award of actual damages.

Finally, with respect to the civil indemnities for Lacaden, the award for actual damages -- for
hospitalization and medicines -- should be ₱4,589.86, as only this amount was properly covered by
receipts.104 The amount of ₱1,831, allegedly for hospital services, was included in a list presented by
the victim, but was not properly supported by any receipt or record; thus, we cannot grant such
amount.

WHEREFORE, the appeal is partly GRANTED and the assailed Decision MODIFIED. In Criminal
Case No. 1082-M-98, Appellant Carmelo Catbagan is found guilty beyond reasonable doubt of
homicide and is SENTENCED to a prison term of one (1) month and one (1) day arresto mayor as
minimum; to one (1) year and six (6) months of prision correccional as maximum. In Criminal Case
No. 1083-M-98, he is found guilty beyond reasonable doubt of homicide and SENTENCED to a
prison term of six (6) years and one (1) day of prision mayor as minimum; to twelve (12) years and
one (1) day of reclusion temporal as maximum. In Criminal Case No. 1099-M-98, he is found guilty
of less serious physical injuries and SENTENCED to a prison term of one (1) month and one (1) day
of arresto mayor.

Appellant is also ORDERED to pay the following amounts: 1) to the legal heirs of Suico, ₱50,000 as
indemnity ex delicto and ₱135,748.80 for loss of earning capacity; 2) to the legal heirs of Lapidante,
₱13,850 for actual damages, ₱50,000 as indemnity ex delicto, ₱50,000 as moral damages, and
₱1,980,763.20 for loss of earning capacity; and 3) to Lacaden, ₱4,589.86 for actual damages. Costs
against appellant.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio, and Azcuna, JJ., concur.