SECOND DIVISION
THE PEOPLE OF THE PHILIPPINES, G.R. No. 169060
Appellee, [Formerly G.R. No. 154915]
Present:
 
- versus - QUISUMBING, J.,
Chairperson,
CARPIO,
CARPIO MORALES,
JOEY CONCEPCION y PEREZ, TINGA, and
Appellant. VELASCO, JR., JJ.
Promulgated:
February 6, 2007
 
x----------------------------------------------------------------------------x
 
 
DECISION
 
TINGA, J.:
 
For review is the Decision[1] of the Court of Appeals affirming with modification

the Judgment[2] dated 24 June 2002 of the Regional Trial Court[3] (RTC) Branch 12

of Malolos, Bulacan, finding appellant Joey Concepcion y Perez guilty beyond

reasonable doubt of the crime of murder, and sentencing him to suffer the penalty

of reclusion perpetua.

In an Amended Information[4] filed by Assistant Provincial Prosecutor Salvador R.

Santos, Jr. on 1 December 1998, appellant was charged with murder, thus:

 
Criminal Case No. 423-M-98
  
That on or about the 26th day of December 1997, in the municipality of Bustos,
province of Bulacan, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, armed with a knife, with intent to kill one
Rolando F. Nicolas, with treachery, did then and there wilfully (sic), unlawfully
and feloniously attack, assault and stab with the said knife said [sic] Rolando F.
Nicolas, hitting him on his abdomen, thereby inflicting upon him serious physical
injuries which directly caused the death of the said Rolando F. Nicolas.
 

Contrary to law.

On 19 March 1998, appellant was originally charged with homicide in an

Information[5] filed before the RTC, Branch 77 of Malolos, Bulacan. However,

following the execution of her Karagdagang Sinumpaang Salaysay,[6] eyewitness

Carmencita Balia (Balia),[7] common-law wife of victim Rolando F. Nicolas

(Nicolas), filed a motion for reinvestigation[8] before the RTC, Branch 77. This

motion was granted[9] and after the completion of reinvestigation, the Amended

Information for murder was filed. The case was thus re-raffled and assigned to

RTC, Branch 12.

When arraigned, appellant pleaded not guilty to the charge.[10] Subsequently, the

defense manifested at pre-trial that while appellant indeed stabbed Nicolas in the

stomach once, he did so however in self-defense. For this reason, the trial court,

upon agreement of the parties, ordered the conduct of reverse proceedings with the

defense first to present its evidence on the alleged self-defense.[11]

 
The pre-trial order[12] issued by Judge Crisanto C. Concepcion embodied the

stipulations agreed upon by the parties as follows: (1) the identities of the accused

and the victim; (2) the date, time and place of the commission of the charged

offense, that is, 26 December 1997, 12:10 in the morning, in Barangay Tanawan,

Bustos, Bulacan; (3) that the cause of death of the victim was the single stab

wound to the stomach; and (4) that prosecution witnesses Balia, Jeffrey Lopez

(Lopez) and Precy Baldazo (Baldazo) gave their respective statements to the police

authorities, and this being so, the testimonies of the police officer who took the

statements and the medico-legal officer may already be dispensed with.[13]

Trial promptly ensued thereafter. To substantiate his theory, the defense presented

as witnesses the appellant, appellants father, appellants mother, and SPO4 Eduardo

Cuison, the arresting officer. The defenses version of the incident runs, thus:

At about 11 oclock in the evening of 25th of December 1997, appellant and his

friend Lopez joined Nicolas, Balia, and their companions Gilbert de Guzman and

Lenin Baldazo at the drinking session and holiday festivities then going on in the

house of appellants aunt Precy Baldoza.[14]

The trouble that night allegedly began when appellant attempted to flirt with Balia

by touching her hand when she passed the videoke microphone to him. According

to appellant, what he did angered the victim, causing the latter to utter in a loud

voice, Putang ina mo, multo ka.[15] Immediately thereafter, Balia purportedly asked

appellant to leave to avoid further problems. Thus, appellant claims to have gone,

but that he was prompted to return to retrieve his mother, who had been left there

in the course of their heated argument.[16]

As he returned to fetch his mother, while situated about two (2) meters from his

aunts house, so appellant narrates, Nicolas suddenly appeared and pulled out a

knife. Appellant approached Nicolas and asked, Ano ba ang problema? In the

course of their argument, appellant allegedly attempted to wrestle the knife away

from the victim. Consequently, in their struggle to gain possession of the knife,

appellant and Nicolas fell on the ground, with the latter landing on top of appellant.

According to appellant, he was surprised to see that the knife had pierced the

stomach of Nicolas. Confused, as he was himself bloodied, appellant explains, he

ran away and left the victim without helping him.[17]

Appellant went straight to his home where he told his wife and father about what

had transpired. His father then went to the police station and came back with two

(2) police officers.[18]

To counter the defenses account of the incident, the prosecution presented Balia

who claimed to have witnessed the killing of the victim. Her testimony attested to

the following facts:

 
 In the evening of 25 December 1997, appellant and Lopez joined a get-

together at the house of Baldazo where, among others, Nicolas and Balia were

present. Throughout the night, the group drank beer and sang in celebration of the

holidays. Sometime during the drinking spree, however, Balia noticed that

appellant had surreptitiously left in a hurry without explanation and thereafter

disappeared for a considerable amount of time. Balia believes that at that point,

appellant went home to get the murder weapon as his mother appeared at the venue

of the festivities thereafter and inquired whether her son had a fight with anyone.[19]

At around 11:45 that evening, the festivities ended uneventfully. Appellant, who

was first to leave the group, seated himself in the veranda outside the house. He

was followed by his mother, Nicolas, Balia and the rest. As Balia and Nicolas were

going out of the house and into the veranda, the latter paused and stooped slightly

to light a cigarette.[20]

Balia saw appellant suddenly stand up, rush toward Nicolas and stab him.

Thereafter, appellant fled. Nicolas was stunned, managing to utter only the

words, Why, Joey? before collapsing. He was rushed to a nearby hospital where he

expired.[21]

The Autopsy Report[22] on the victim shows that the cause of his death was the stab

wound in his abdomen. It describes the stab wound as follows:

 
 xxxx
STAB WOUND
gaping, 2.5 cms. located on the abdomen, along the anterior median line, 102 cms.
from the right heel, one end is sharp, the other is contused, directed backwards and
upwards involving the skin and underlying soft tissues, severing the omentum and
intestines and hitting the liver with a depth of 8-9 cms.
 
xxxx

The prosecution asserts that appellant harbored ill-feelings toward Nicolas as a

result of a disagreement some three (3) years back. Nicolas had purportedly

reprimanded appellant for extorting money from those engaged in quarrying

operations in their area. The victim had then allegedly poked a gun at appellant in

one of their encounters.[23]

To prove actual damages, Balia presented receipts in the amount

of P50,000.00 representing the expenses incurred during the wake and the service

for the victims funeral.[24]

Finding the prosecutions version to be more credible than appellants allegation of

self-defense, the trial court found appellant guilty of murder and sentenced him to

suffer the penalty of reclusion perpetua, to indemnify the heirs of the victim in the

amount of P75,000.00, in addition to P50,000.00 for funeral expenses as actual

damages, and P50,000.00 as moral damages.[25]

Conformably with this Courts decision in People v. Mateo,[26] appellants appeal

was remanded to the Court of Appeals. On 9 May 2005, the appellate court
rendered its decision affirming the appellants conviction, with modification as to

appellants civil indemnity. The dispositive portion of the decision states:

 
WHEREFORE, the appealed Decision of the Regional Trial Court of Malolos,
Bulacan (Branch 12), dated June 24, 2002, in Criminal Case No. 423-M-98,
finding appellant Joey Concepcion y Perez guilty of murder and sentencing him to
suffer the penalty of reclusion perpetua and awarding actual and moral damages in
favor of the legal heirs of the victim Rolando F. Nicolas
is AFFIRMED with MODIFICATIONthat the civil indemnity awarded by the
trial court also in favor of the said heirs is reduced to Fifty Thousand Pesos
(P50,000.00). No pronouncement as to costs.
 
SO ORDERED.[27]

Appellant maintains that the court a quo gravely erred: (1) in giving full faith and

credence to the testimony of Balia instead of the self-defense interposed by

appellant; (2) in appreciating the qualifying circumstance of treachery; and (3) in

finding appellant guilty beyond reasonable doubt of the crime of murder.[28]

Appellant argues that all the essential elements of self-defense were sufficiently

established to exculpate him from liability. He contends that no evidence on record

shows that he intended to kill the victim; if at all, the death of the victim was

purely accidental and only triggered by the provocation committed by the victim

when he attacked appellant with a knife.[29]

We are convinced of the appellants guilt beyond reasonable doubt, however, the

downgrading of the offense involved and the reduction of the penalty are in order.

 
 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 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.[30]

We find that appellant has miserably failed to demonstrate that the death of

Nicolas had occurred on the occasion of a legitimate self-defense on his part. The

accused, in cases of self-defense, must rely on the strength of his own evidence and

not on the weakness of the prosecutions evidence since he admits the commission

of the alleged criminal act.[31] One who admits the infliction of injuries which

caused the death of another has the burden of proving self-defense with sufficient

and convincing evidence, for even if the evidence of the prosecution were weak, it

could not be disbelieved after the accused himself had admitted the killing.[32] Self-

defense, like alibi, is a defense which can easily be concocted. If the accuseds

evidence is of doubtful veracity, and it is not clear and convincing, the defense

must necessarily fail.[33]

Accordingly, there can be no self-defense unless there was unlawful

aggression on the accused. It thus follows that the accused has the burden of proof

to show that he was the victim of an unlawful aggression in order to be entitled to

his claim of self-defense.[34] This is so, because it is a fundamental principle that

one who exculpates himself with an allegation of justification has the burden of

fully showing the concurrence of all the elements constituting the defense invoked.
[35]

Unlawful aggression presupposes not merely a threatening or an intimidating

attitude, but an actual, sudden and unexpected attack or an imminent danger

thereof, which imperils ones life or limb.[36] It is the first and primordial element of

self-defense. Without it, the justifying circumstance cannot be invoked.[37]

Hence, it is crucial to determine whether or not the victim Nicolas was

indeed the unlawful aggressor. He was not. Aggression to be unlawful must be

actual and imminent, such that there is a real threat of bodily harm to the person

resorting to self-defense or to others whom that person is seeking to defend. As

adequately established by the prosecution, there was no incident to speak of which

would amount to aggression, much less unlawful aggression, on the part of the

victim. Correspondingly, appellant failed to present any corroborative evidence to

buttress his bare allegations, despite the presence of many persons during the

incident who could have been called to testify. His lone testimony in support of his

claim of self-defense under the circumstances is simply not enough to establish his

defense.

 
 Appellant is not even sure of his real defense. He asserts that his acts were

made in self-defense, but he suggests at the same time that the victims death was

accidental. The incongruent claims make his overall theory implausible.

While appellants slaying of Nicolas is a proven fact, the prosecution

however failed to prove the presence of treachery to qualify the killing to murder.

There is treachery when the offender commits any of the crimes against the person,

employing means, methods, or forms in the execution thereof which tend directly

and specially to insure its execution, without risk to himself arising from the

defense which the offended party might make. [38]

In the case at bar, the Courts below should not have appreciated the presence of

treachery to qualify the killing to murder. The only prosecution evidence on the

matter is the bare testimony of Balia, the victims common-law wife, that his head

was bent while lighting a cigarette when appellant launched his attack. Balia made

the claim for the first time in her Karagdagang Sinumpaang Salaysay,[39] as she

failed to mention it in her first Sinumpaang Salaysay.[40] The amendment appears to

be a mere afterthought made precisely to upgrade the charge to murder.

Significantly, two of the companions of Nicolas during the festivities gave

statements to the police authorities.[41] However, the prosecution did not present

them as witnesses. Hence, their statements cannot be considered as evidence.[42]

 

In the absence of conclusive proof on the manner in which

the aggression against Nicolas was commenced, treachery cannot be appreciated as

a modifying circumstance.[43] It bears stressing that treachery cannot be presumed.

It must be proved with the same quantum of evidence as the crime itself.[44]

The barefaced fact that the victim might have been unaware or helpless when he

was stabbed does not constitute proof of treachery.[45] The prosecution has the

burden to prove that at the time of the attack, the victim was not in a position to

defend himself, and that the offender consciously and deliberately adopted the

particular means, method and forms of attack employed by him.[46] When the

prosecution fails to prove treachery, as in this case, the accused may be held liable

only for homicide not murder.[47]

As a final matter, we address the issue of appellants claimed mitigating

circumstance of voluntary surrender. For voluntary surrender to be considered, the

following requisites must concur: (a)

the offender was not actually arrested; (b) he surrendered to a person in authority

or to an agent of a person in authority; and (c) his surrender was voluntary.

[48]
 There must be showing of spontaneity and an intent to surrender

unconditionally to the authorities, either because the accused acknowledges his

guilt or he wishes to spare them the trouble and expense concomitant to his

capture.[49] The records show that appellant did not surrender but was arrested in
his residence by SPO4 Cuison. This arresting officer even had to go twice to

appellants home to effect the arrest, because during the first attempt, appellant

would not come out of his house and his mother refused to turn him over to the

arresting officer.[50]

Based on the foregoing, we modify the finding of guilt and the consequent penalty

imposed as pronounced by the Court of Appeals. Article 249 of the Revised Penal

Code (RPC), as amended, prescribes the penalty of reclusion temporal for the

crime of homicide. There being neither mitigating nor aggravating circumstances

in the commission of the deed in the instant case, the penalty ofreclusion

temporal in its medium period is imposed, in accordance with Article 64,

paragraph 1 of the RPC. Further, applying Section 1 of the Indeterminate Sentence

Law, the Court imposes the penalty of imprisonment ranging from 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.

We affirm, however, the award of damages. Consequently, the court finds

appellant liable to the heirs of Rolando F. Nicolas in the amount of P50,000.00 as

actual damages for funeral expenses,P50,000.00 as moral damages and P50,000.00

as civil indemnity.[51]
 

WHEREFORE, the decision of the Court of Appeals in CA-G.R. CR No. 00519, is

AFFIRMED WITH MODIFICATION. As modified, appellant JOEY

CONCEPCION y PEREZ is convicted of the crime of homicide and sentenced to

suffer an indeterminate penalty of imprisonment ranging from 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. Appellant is further ordered to pay the

heirs of Rolando F. Nicolas the amounts of P50,000.00 as actual

damages, P50,000.00 as moral damages andP50,000.00 as civil indemnity. No

pronouncement as to costs.

SO ORDERED.
 
 
DANTE O. TINGA Associate
Justice
 
 
 
 
 
WE CONCUR:
 
 
 
 
LEONARDO A. QUISUMBING
Associate Justice
 Chairperson
 
 
 
 
 
ANTONIO T. CARPIO CONCHITA CARPIO MORALES
Associate Justice Associate Justice
 
 
 
 
 
PRESBITERO J. VELASCO, JR.
Associate Justice
 
 
ATTESTATION
 
I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Courts Division.
 
 
LEONARDO A. QUISUMBING
Associate Justice
Chairperson, Second Division
 
 
 
CERTIFICATION
 
Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons Attestation, it is hereby certified that the conclusions in the
above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.
 
 
 
REYNATO S. PUNO
Chief Justice

 
[1]
Rollo, pp. 3-23; CA rollo, pp. 103-104. Penned by Associate Justice Aurora Santiago-Lagman and concurred in by
Associate Justices Conrado M. Vasquez, Jr. and Rebecca De Guia-Salvador.
 
[2]
CA rollo, pp. 20-24 and 63-67.
 
[3]
Presided by Judge Crisanto C. Concepcion.
 
[4]
Records, Vol. 1, pp. 60-61; Vol. II, pp. 1-2, 3-4 and 5-6.
 
[5]
Id.
 
[6]
Id. at p. 33-34.
 
[7]
Also referred to as Carmencita Balena and Carmencita Balea in the case records.
 
[8]
Records, Vol. 1, pp. 31-32.
 
 
[9]
Id. at 62-63. Resolution dated 15 October 1998.
 
[10]
Id. at 90; Order dated 27 February 2001.
 
[11]
Id. at 92; Order dated 9 March 2001.
 
[12]
Id.
 
[13]
Id.; TSN, 9 March 2001, pp. 2-9.
 
 
[14]
TSN, 19 June 2001, pp. 8-9.
 
[15]
Id. at 10-11; TSN, 17 July 2001, pp. 2-3.
 
[16]
TSN, 17 July 2001, pp. 3-4; 2 August 2001, p. 2.
 
[17]
TSN, 2 August 2001, pp. 2-5.
 
[18]
Id. at pp. 5-6.
 
[19]
Records, Vol. 1, p. 39.
 
[20]
TSN, 22 January 2002, pp. 5-6; Records, p. 4.
 
[21]
TSN, 22 January 2002, pp. 6-7, 11.
 
[22]
Id. at 155.
 
[23]
Supra note 5; TSN, 22 January 2002, supra at pp. 9-10.
 
[24]
 TSN, 22 January 2002, pp. 15 and 16.
 
[25]
CA rollo, pp. 23-24 and 66-67.
[26]
G.R. Nos. 147678-87, 7 July 2004, 433 SCRA 640.
 
[27]
Rollo, p. 22; CA rollo, p. 123.
 
[28]
CA rollo, p. 51.
 
[29]
Id. at 59-61.
 
[30]
Roca v. Court of Appeals, 403 Phil. 326, 335 (2001) citing People v. Gadin, Jr., G.R. No. 130658, 4 May
2000, p. 6, citing People v. De la Cruz, 313 SCRA 189 (1999); People v. Bitoon, 309 SCRA 209 (1999), and People
v. Villamor, 292 SCRA 384 (1998).
 
[31]
Id. citing People v. Caverte and Caverte, G.R. No. 123112, 30 March 2000, p. 19, citing People v.
Obzunar, 265 SCRA 547 (1996).
 
[32]
Cabuslay v. People, G.R. No. 129875, 30 September 2005, 471 SCRA 241, 256, citing People v. Belbes,
389 Phil. 500, 507; 334 SCRA 161, 167-168 (2000).
 
[33]
People v. Artiaga, G.R. No. 115689, 30 June 1997, 274 SCRA 685, 693, citing Cantos v. Court of
Appeals, 234 SCRA 375 (1994).
 
[34]
FRANCISCO, EVIDENCE (1996, 3rd ed.) 397 citing People v. Barrieta, 45 O.G. 3945.
 
[35]
Id. citing People v. Bona, 37 O.G. 657.
 
[36]
People v. Cabuslay, supra note 32 at 257 citing People v. Sabdani, 389 Phil. 840, 847; 334 SCRA 498,
505 (2000); People v. Janairo, 370 Phil. 59, 72; 311 SCRA 58, 71 (1999).
 
[37]
R. KAPUNAN and D. FAYLONA, CRIMINAL LAW (1993 ed.) 58; People v. Cabuslay, supra note 32
at 257 citing People v. Cawaling, 355 Phil. 1, 37; 293 SCRA 267 (1998); People v. Tan, 373 Phil. 990, 1009, 315
sCRA 375, 392 (1999); People v. Aglipa,391 Phil. 879, 888; 337 SCRA 181, 189 (2000); Salcedo v. People, G.R.
No. 137143, 8 December 2000, 347 SCRA 499, 507; People v. Asuela, 426 Phil. 428, 443-444; 376 sCRA 51, 64
(2002); People v. Magnabe, Jr., 435 Phil. 374, 390; 386 SCRA 351, 364 (2002) .
 
[38]
REVISED PENAL CODE, Art. 14, No. 16, par. 2.
 
[39]
Records, Vol. 1, pp. 33-34.
 
[40]
Id. at 4-5.
 
[41]
Rollo, p. 7.
 
 [42]
Peoples Bank and Trust Company v. Leonidas, G. R. No. 47815, 11 March 1992, 207 SCRA 165, 166
citing People v. Brioso, L-28482, 37 SCRA 336 (1971).
 
[43]
People v. Santiago, 446 Phil. 323, 340 (2003); citing People v. Macaliag, 337 SCRA 502 (2000).
 
[44]
People v. Santiago, supra.
 
[45]
Id.
 
[46]
People v. Ramos, G.R. No. 125898, 14 April 2004, 427 SCRA 207, 214; citing People v. Castillano, Sr., G.R. No.
139412, 2 April 2003, 400 SCRA 401.
 
[47]
People v. SPO2 Magnabe, Jr., 435 Phil. 374 (2002).
 
[48]
People v. Suyum, 428 Phil. 465, 481 (2002); People v. Ignacio, 382 Phil. 257, 267 (2000); People v.
Deopante, 331 Phil. 998 (1996).
 
[49]
Roca v. Court of Appeals, 403 Phil. 326, 338 (2001) citing People v. Salas, G.R. No. 115192, 7 March
2000, p. 10.
 
[50]
TSN, 4 October 2001, p. 8.
 
[51]
People v. Manalo, G.R. No. 173054, 5 December 2006.

Republic of the Philippines
Supreme Court
Manila
 
 FIRST DIVISION
 
 
PEOPLE OF THE PHILIPPINES, G.R. No. 153875
Plaintiff-Appellee,  
Present:
   
- versus - PANGANIBAN, C.J.,
(Chairperson)
  YNARES-SANTIAGO,
  AUSTRIA-MARTINEZ,
 
ROLANDO DAGANI y REYES CALLEJO, SR. and
CHICO-NAZARIO, JJ.
and OTELLO SANTIANO Y
LEONIDA, Promulgated:
Accused-Appellants. August 16, 2006
x--------------------------------------------------x
 
 

DECISION
 
AUSTRIA-MARTINEZ, J.:
 
For review before the Court is the Decision dated June 20,
2002 [ 1 ]  of the Court of Appeals (CA) which affirmed the Decision
of the Regional Trial Court of the City of Manila, Branch 12 (RTC),
dated February 18, 1993, in Criminal Case No. 89-77467, finding the
accused-appellants Otello Santiano y Leonida (Santiano) and Rolando
Dagani y Reyes (Dagani) guilty of the crime of Murder.
  
The accusatory portion of the Information reads:
 
That on or about September 11, 1989, in the City of Manila,
Philippines, the said accused conspiring and confederating together
and mutually helping each other did then and there, willfully,
unlawfully and feloniously, with intent to kill, evident
 premeditation and treachery, attack, assault and use of personal
violence upon one ERNESTO JAVIER Y FELIX by then and there
shooting him with a .38 caliber revolver, thereby inflicting upon the
said ERNESTO JAVIER Y FELIX mortal gunshot wounds which
were the direct and immediate cause of his death thereafter.
 
CONTRARY TO LAW. [ 2 ]
 
 
Upon arraignment, the appellants pleaded not guilty. Trial ensued
where the prosecution adduced evidence to establish the following:
 
At about 4:45 in the afternoon of September 11, 1989, a group
composed of Ernesto Javier (Javier), Lincoln Miran (Miran), and two
other individuals had been drinking at the canteen located inside the
compound of the Philippine National Railways (PNR) along C.M.
Recto Avenue, Tondo, Manila. All of a sudden, appellants, who were
security officers of the PNR and covered by the Civil Service Rules
and Regulations, entered the canteen and approached the
group. Appellant Dagani shoved Miran, causing the latter to fall from
his chair. Dagani then held Javier while Santiano shot Javier twice at
his left side, killing the latter.
 
The defense proceeded to prove their version of the facts:
 
 
Appellants testified that they were ordered by their desk officer to
investigate a commotion at the canteen. Upon reaching the place,
Santiano ordered his co-accused, Dagani, to enter, while the former
waited outside.
 

Dagani approached Javier who had been striking a bottle of beer on the
table. Javier then pulled out a .22 caliber revolver and attempted to
fire at Dagani, but the gun failed to go off. Then suddenly, while
outside the canteen, Santiano heard gunfire and, from his vantage
point, he saw Javier and Dagani grappling for a .22 caliber gun which
belonged to Javier. During the course of the struggle, the gun went off,
forcing Santiano to fire a warning shot. He heard Javiers gun fire
again, so he decided to rush into the canteen. Santiano then shot Javier
from a distance of less than four meters.
 

Appellants invoked the justifying circumstances of self-defense and

lawful performance of official duty as PNR security officers.  They
also argued that the prosecution failed to establish treachery and
conspiracy.
 

The RTC rendered its Decision, the dispositive portion of which reads:

 
WHEREFORE, finding both accused Otello Santiano y Leonida and
Rolando Dagani y Reyes guilty beyond reasonable doubt of the
crime of Murder defined and punished under Art. 248, RPC, with
the presence of the mitigating circumstance of voluntary surrender
and granting them the benefit of [the] Indeterminate Sentence Law,
both accused are hereby sentenced to each suffer an Indeterminate
prison term of TEN (10) YEARS and ONE (1) DAY of  prision
mayor as minimum, to EIGHTEEN (18) YEARS and ONE (1) DAY
of reclusion temporal  x x x.
 
 
 
 
 
 Both accused are hereby ordered to indemnify the heirs of the
victim the sum of P 50,000.00 as death indemnity, the sum
of P 31,845.00 as funeral and burial expenses, the sum of
P 30,000.00 as and for [sic] attorneys fees and the further sum
of P 1,000.00 per appearance of counsel.
 
Both accused shall be credited with the full extent of their
preventive imprisonment.  Both accused are hereby committed to the
Director, National Penitentiary, Muntinlupa, Metro Manila for
service of Sentence.
 
SO ORDERED. [ 3 ]
 
 
In brief, the RTC held that appellants failed to prove that Javier
attempted to squeeze the trigger of the .22 caliber gun when he pointed
it at Dagani; that during the course of the struggle for the possession
of the .22 caliber gun, the danger to the life of the accused ceased to
be imminent; that in grappling for the weapon, Dagani controlled the
hands of Javier and pushed them away from his body; that the
appellants failed to produce the two empty shells as physical evidence
of the gunfire allegedly caused by Javier; that no points of entry or
bullet markings on the walls of the canteen were shown; that, in light
of these findings, no unlawful aggression was present on the part of
the victim; that the appellants failed to prove that they were on
official duty at the time of the incidence; that, since it was not
established that Javier actually fired his gun, the injury inflicted upon
him cannot be regarded as a necessary consequence of the due
performance of an official duty; that the appellants were acting in
conspiracy; that the qualifying circumstance of treachery attended the
killing, considering that Javier had been shot while his hands were
being held by Dagani and as his body was out of balance and about to
fall; and that the mitigating circumstance of voluntary surrender
should be appreciated in favor of the appellants.
The appellants appealed to the CA and assigned the following errors:
I
 
THE LOWER COURT GRAVELY ERRED IN NOT
APPRECIATING SELF DEFENSE ON THE PART OF THE
ACCUSED.
 
II
 
THE LOWER COURT ERRED WHEN IT FAILED TO CONSIDER
THE FACT THAT THE ACCUSED-APPELLANTS WERE IN
LAWFUL PERFORMANCE OF AN OFFICIAL DUTY.
 
III
 
THE LOWER COURT GRAVELY AND SERIOUSLY ERRED IN
RULING THAT THERE WAS CONSPIRACY.
 
IV
 
THE LOWER COURT GRAVELY ERRED IN FINDING THAT THE
PROSECUTION WAS ABLE TO ESTABLISH BEYOND
REASONABLE DOUBT THAT THE ACCUSED ARE GUILTY OF
MURDER. [ 4 ]
 
The CA rendered its Decision, the dispositive portion of which states:
 
WHEREFORE, the appealed judgment of conviction is
MODIFIED. Appellants are hereby sentenced to reclusion
perpetua.  The award for attorneys fees and appearance fees for
counsel are hereby deleted.  In all the other aspects, the appealed
decision is maintained.
 
Let the entire records of the case be elevated to the Supreme
Court for the mandated review.
 
SO ORDERED. [ 5 ]
 
 
The CA affirmed the findings of fact as well as the salient portions of
the RTC Decision, but deleted the award of attorneys fees and the per
appearance fees of counsel since, the
 
CA reasoned, the instant case is criminal in nature which is under the
control of the public prosecutor, and, additionally, the RTC failed to
justify this award in the body of its Decision.  And last, the CA found
that the RTC erroneously applied the Indeterminate Sentence Law
since the penalty for Murder, at the time of the incident, wasreclusion
perpetua which is an indivisible penalty to be imposed in its entirety,
regardless of the attending mitigating circumstance of voluntary
surrender.
 
Appellants are now before this Court submitting for resolution the
same matters argued before the CA. Through their Manifestation
dated February 11, 2003, [ 6 ]  appellants prayed to dispense with the
filing of additional briefs.
 
As of date, the records show that despite the efforts exerted by the
surety and the responsible law officers to locate the appellants, the
latter could not be found and have jumped bail. [ 7 ]
 
The appeal is partly meritorious.
 
Appellants argue that the courts a quo misappreciated the facts and
erred in finding that there was no unlawful aggression on the part of
the victim. They insist that the victim, Javier, had been armed with a
revolver at the time he was struggling with appellant Dagani; that the
former could have easily killed the latter; that, given the fact that
Javier had been drinking, it is quite probable for Javier to act harshly
and aggressively towards
 
 
 
peace officers such as the accused; [ 8 ]  and that Javier actually fired
three shots from his .22 caliber gun. [ 9 ]
 
We are not convinced.
 
When self-defense is invoked, the burden of evidence shifts to
the accused to show that the killing was legally justified. Having
owned the killing of the victim, the accused should be able to prove to
the satisfaction of the Court the elements of self-defense in order to
avail of this extenuating circumstance. He must discharge this burden
by clear and convincing evidence. When successful, an otherwise
felonious deed would be excused, mainly predicated on the lack of
criminal intent of the accused.  Self-defense requires that there be (1)
an unlawful aggression by the person injured or killed by the offender,
(2) reasonable necessity of the means employed to prevent or repel
that unlawful aggression, and (3) lack of sufficient provocation on the
part of the person defending himself. All these conditions must
concur. [ 1 0 ]
 
 Unlawful aggression, a primordial element of self-defense, would
presuppose an actual, sudden and unexpected attack or imminent
danger on the life and limb of a person not a mere threatening or
intimidating attitude [ 1 1 ]  but most importantly, at the time the defensive
action was taken against the aggressor. [ 1 2 ]  To invoke self-
defense successfully, there must have been an
 
unlawful and unprovoked attack that endangered the life of the
accused, who was then forced to inflict severe wounds upon the
assailant by employing reasonable means to resist the attack. [ 1 3 ]
 
In the instant case, the assertions that it was quite probable that
Javier, during the course of the struggle for the firearm, could have
easily killed the appellants are uncertain and speculative. There is
aggression in contemplation of the law only when the one attacked
faces real and immediate threat to ones life. The peril sought to be
avoided must be imminent and actual, not just speculative. [ 1 4 ]
 
To sum up the matter, we quote the findings of the CA:
 
The defense was unable to prove that there was unlawful
aggression on the part of Javier. They were unable to present
evidence that the victim actually fired his gun.  No spent shells from
the .22 caliber pistol were found and no bullets were recovered from
the scene of the incident.  Javier also tested negative for gunpowder
residue. Moreover, the trial court found appellant Daganis account
of the incident to be incredible and self-serving.  In sum, the defense
presented a bare claim of self-defense without any proof of the
existence of its requisites. [ 1 5 ]
 
Even if it were established that Javier fired his gun as the appellants
so insist, the imminence of the danger to their lives had already ceased
the moment Dagani held down the victim and grappled for the gun
with the latter. After the victim had been thrown off-balance, there
was no longer any unlawful aggression
 
 
 
that would have necessitated the act of killing. [ 1 6 ]  When an unlawful
aggression that has begun no longer exists, the one who resorts to self-
defense has no right to kill or even to wound the former aggressor.
[17]
 When Javier had been caught in the struggle for the possession of
the gun with appellant Dagani, the grave peril envisaged by appellant
Santiano, which impelled him to fire at the victim, had then ceased to
a reasonable extent, [ 1 8 ]  and undoubtedly, Santiano went beyond the call
of self-preservation when he proceeded to inflict the excessive and
fatal injuries on Javier, even when the alleged unlawful aggression had
already ceased. [ 1 9 ]
 
The second element of self-defense demands that the means employed
to neutralize the unlawful aggression are reasonable and necessary.  It
is settled that reasonable necessity of the means employed does not
imply material commensurability between the means of attack and
defense. What the law requires is rational equivalence. [ 2 0 ] The
circumstances in their entirety which surround the grappling of the
firearm by Dagani and Javier, such as the nature and number of
gunshot wounds sustained by the victim [ 2 1 ]  which amounted to two
fatal wounds, [ 2 2 ]  that Dagani was able to restrain the hands of Javier
and push
 
 
them away from his body, [ 2 3 ]  that Dagani was larger than Javier and
had finished Special Weapons and Tactics (SWAT) hand-to-
hand combat training, [ 2 4 ]  and Javier, as admitted by the appellants, was
inebriated at the time of the incident, [ 2 5 ]  do not justify appellant
Santianos act of fatally shooting the victim twice. [ 2 6 ]
 
All things considered, the appellants plea of self-defense is not
corroborated by competent evidence. The plea of self-defense cannot
be justifiably entertained where it is not only uncorroborated by any
separate competent evidence but is in itself extremely doubtful.
[27]
 Whether the accused acted in self-defense is a question of fact.Like
alibi, the affirmative defense of self-defense is inherently weak
because, as experience has demonstrated, it is easy to fabricate and
difficult to disprove. [ 2 8 ]  This Court, therefore, finds no reversible error
on the part of the courts a quo in rejecting the claim of self-defense.
 
Appellants set up the defense that they were in the lawful
performance of their official duties. They specifically aver that they
had been ordered by their desk officer to proceed to the canteen in
response to a telephone call stating that there was a group creating
trouble; that they were in the call of duty and exercising their
functions and responsibilities as members of the
PNR Civil Security Office to preserve peace and order and
  
 
 
protect the lives and property in the PNR Compound; [ 2 9 ]  and that,
invoking jurisprudence, as security officers in the performance of
duty, like the police, they must stand their ground and overcome the
opponent, and the force that may be exerted must differ from that
which ordinarily may be offered in self-defense. [ 3 0 ]
 

Article 11 of the Revised Penal Code 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. [ 3 1 ]  These
requisites are absent in the instant case.
 

As found by the CA:

 
The defense failed to prove that the security officers were in
fact on duty at the time they were at the canteen.  The trial court
gave weight to the fact that the appellants were unable to submit
their daily time records to show that they were on duty at the
time.  Appellants assertion that they were ordered to go on 24-hour
duty was belied by PNR Security Investigator Rolando Marinays
testimony that PNR security officers work in two 12-hour shifts,
from 7:00 a.m. to 7:00 p.m. and from 7:00 p.m. to 7:00 a.m.
 
Moreover, since it was not established that Javier fired his
gun, the injury inflicted upon him cannot be regarded as a necessary
consequence of appellants due performance of an official duty. [ 3 2 ]
 
 
 
As stated, considering that the imminent or actual danger to the
life of the appellants had been neutralized when Dagani grappled with
Javier and restrained his hands; that Javier had been thrown off-
balance; that Dagani had been specially trained for these purposes; and
that Javier had been drinking immediately prior to the scuffle, this
Court holds that the fatal injuries that appellant Santiano inflicted on
the victim cannot be deemed to be necessary consequences of the
performance of his duty as a PNR security officer. [ 3 3 ]  While it is
recognized that police officers if indeed the appellants can be likened
to them must stand their ground and overwhelm their opponents,
in People v. Ulep, [ 3 4 ]  this Court counseled:
 
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. We cannot countenance trigger-happy
law enforcement officers who indiscriminately employ force and
violence upon the persons they are apprehending. They must always
bear in mind that although they are dealing with criminal elements
against whom society must be protected, these criminals are also
human beings with human rights. [ 3 5 ]
 
 
 But this Court cannot agree with the findings of the courts a
quo that the appellants were in conspiracy.
 
 
 
The RTC simply held:
 
The Information cited conspiracy of the accused. Since it can
also be committed thru simultaneous/concerted action and
considering that Javier was shot by Santiano while being held by
Dagani, under jurisprudence, conspiracy is present. [ 3 6 ]
 
 
The tenor of the factual findings of the CA is equally unsatisfactory:
 
Moreover, the facts show that Javier was shot by appellant Santiano
as he was being subdued by appellant Dagani. The trial court held
that the manner of the attack was indicative of a joint purpose and
design by the appellants. [ 3 7 ]
 
Courts must judge the guilt or innocence of the accused based on
facts and not on mere conjectures, presumptions, or suspicions.
[38]
 Other than the plain fact that the victim had been shot by one of the
accused while being held by a co-accused, there is no other evidence
that the appellants were animated by the same purpose or were moved
by a previous common accord. It follows that the liability of the
accused must be determined on an individual basis. While no formal
agreement is necessary to establish conspiracy because conspiracy may
be inferred from the circumstances attending the commission of the
crime, yet, conspiracy must be established by clear and convincing
evidence. [ 3 9 ]
 
 This Court has held that even if all the malefactors joined in the
killing, such circumstance alone does not satisfy
the requirement of conspiracy because the rule isthat
 
neither joint nor simultaneous action is per se sufficient proof of cons
piracy. Conspiracy must be shown to exist
as clearly and convincingly as the commission of the offense itself.
[40]
 Thus, even assuming that Javier was simultaneously attacked, this
does not prove conspiracy. No evidence was presented to show that the
appellants planned to kill Javier or that Daganis overt acts facilitated
that alleged plan. The prosecution did not establish that the act of
Dagani in trying to wrestle the gun from Javier and in the process,
held the latters hands, was for the purpose of enabling Santiano to
shoot at Javier. The prosecution had the burden to show Daganis
intentional participation to the furtherance of a common design and
purpose [ 4 1 ]  or that his action was all part of a scheme to kill
Javier. That Dagani did not expect Santiano to shoot the victim is
established when Santiano testified that Dagani seem[ed] to be
shocked, he was standing and looking at the victim as Javier gradually
fell to the ground. [ 4 2 ]  And since Daganis conviction can only be
sustained if the crime had been carried out through a conspiracy duly
proven, in view of the failure of the prosecution to discharge that
burden, this Court is constrained to acquit him.
And this Court cannot say that treachery attended the attack. The
RTC declared:
 
[T]he Court believes that Javier was shot while his body was out-
balanced and about to fall to the right side and while his hands were
 being held by Dagani. Javier, therefore, was shot at when he has no
means to defend himself, hence, the killing was attended by the
qualifying circumstance of treachery. [ 4 3 ]
 
 
 
which the CA affirmed as follows:
 
The findings of the court a quo clearly showed that Javier was being
held down and could not effectively use his weapon.  As such, the
trial court held that Javier could not be considered to be an armed
man as he was being held down and was virtually helpless.
 
It has been held that when an assault is made with a deadly weapon
upon an unarmed and unsuspecting victim who [was] given no
immediate provocation for the attack and under conditions which
made it impossible for him to evade the attack, flee or make [a]
defense, the act is properly qualified as treachery, and the homicide
resulting therefrom is classified as murder. [ 4 4 ]  x x x
 
 
Treachery under par.16 of Article 14 of the Revised Penal Code is
defined as the deliberate employment of means, methods or forms in
the execution of a crime against persons which tend directly and
specially to insure its execution, without risk to the offender arising
from the defense which the intended victim might raise. Treachery is
present when two conditions concur, namely: (1) that the means,
methods and forms of execution employed gave the person attacked no
opportunity to defend himself or to retaliate; and (2) that such means,
methods and forms of execution were deliberately and consciously
adopted by the accused without danger to his person. [ 4 5 ]
 
This Court has held that the suddenness of the attack, the infliction of
the wound from behind the victim, the vulnerable position of the
victim at the time the attack was made, or the fact
that the victim was unarmed, do not by themselves render the
 
 
attack as treacherous. [ 4 6 ]  This is of particular significance in a case of
an instantaneous attack made by the accused whereby he gained an
advantageous position over the victim when the latter accidentally fell
and was rendered defenseless. [ 4 7 ]  The means employed for the
commission of the crime or the mode of attack must be shown to have
been consciously or deliberately adopted by the accused to insure the
consummation of the crime and at the same time eliminate or reduce
the risk of retaliation from the intended victim. [ 4 8 ]  For the rules on
treachery to apply, the sudden attack must have been preconceived by
the accused, unexpected by the victim, and without provocation on the
part of the latter. [ 4 9 ]  Treachery is never presumed. Like the rules on
conspiracy, it is required that the manner of attack must be shown to
have been attended by treachery as conclusively as the crime itself. [ 5 0 ]
 
The prosecution failed to convincingly prove that the assault by the
appellants had been deliberately adopted as a mode of attack intended
to insure the killing of Javier and without the latter having the
opportunity to defend himself. Other than the bare fact that Santiano
shot Javier while the latter had been struggling with Dagani over the
possession of the .22 caliber gun, no other fact had been adduced to
show that the appellants consciously planned or predetermined the
methods to insure the commissionof the crime, nor had the risk of the
victim to
 
retaliate been eliminated during the course of the struggle over
the weapon, as the latter, though struggling, had not been
completely
subdued. As already stated, this Court must emphasize that the mere
suddenness of the attack, or the vulnerable position of the victim at
the time of the attack, or yet even the fact that the victim was
unarmed, do not by themselves make the attack treacherous. [ 5 1 ]  It must
be shown beyond reasonable doubt that the meansemployed  gave the
victim no opportunity to defend himself or retaliate, and that such
means had been deliberately or consciously adopted without danger to
the life of the accused. [ 5 2 ]
 
For these reasons, the Court is inclined to look upon the helpless
position of Javier as merely incidental to the attack, and that the
decision to shoot Javier was made in an instant. [ 5 3 ]
 
Considering the rule that treachery cannot be inferred but must be
proved as fully and convincingly as the crime itself, any doubt as to its
existence must be resolved in favor of Santiano. Accordingly, for
failure of the prosecution to prove treachery to qualify the killing to
Murder, appellant Santiano may only be convicted of Homicide. [ 5 4 ]  The
penalty, therefore, under Article 249 of the Revised Penal Code, as
amended, is reclusion temporal .
 
The Office of the Solicitor General is correct in that the courts  a
quo failed to consider the aggravating circumstance of
 
taking advantage of official position under Article 14 (1) of the
Revised Penal Code, since the accused, a PNR security officer
covered by the Civil Service, committed the crime with the aid
of a gun he had been authorized to carry as such. [ 5 5 ]  Considering that
the mitigating circumstance of voluntary surrender, as duly
appreciated by the courts a quo, shall be offset against the aggravating
circumstance of taking advantage of official position, the penalty
should be imposed in its medium period, pursuant to Article 64 (4) of
the aforesaid Code.
Applying the Indeterminate Sentence Law, the sentence of
appellant Santiano will consist of a minimum that is anywhere within
the full range of prision mayor, and a maximum which is anywhere
within reclusion temporal  in its medium period. This Court hereby
fixes it to be from eight (8) years and one (1) day of  prision mayor as
minimum, to fourteen (14) years, eight (8) months, and one (1) day
of reclusion temporal , as maximum.
 
As to the award of damages, prevailing jurisprudence entitles the heirs
of the deceased to the amount of P 50,000.00 as civil indemnity for the
death of the victim without need of any evidence or proof of damages.
[56]

 
The CA erred in deleting the attorneys fees and per appearance
fees for lack of factual basis. Although the CA is correct in noting that
the RTC failed to justify these awards in the body of its Decision, this
appeal opens the entire case for review and, accordingly,
the records show that the foregoing
 
amounts had been stipulated by the parties, [ 5 7 ]  thereby dispensing with
the need to prove the same. [ 5 8 ]
As to moral damages, however, the widow of the victim, Erlinda
Javier, is not entitled to the same. She did not testify on any mental
anguish or emotional distress which she suffered as a result of her
husbands death. No other heirs of Javier testified in the same manner.
[59]

 
Inasmuch as the aggravating circumstance of taking advantage of
official position attended the killing, the Court awards exemplary
damages in the amount ofP 25,000.00 in accordance with Articles 2230
and 2234 of the Civil Code and prevailing jurisprudence. [ 6 0 ]
WHEREFORE, the Decision of the Court of Appeals in CA-G.R.
CR No. 15304 dated June 20, 2002 is MODIFIED. Appellant Otello
Santiano y Leonida is foundGUILTY beyond reasonable doubt of
Homicide and is sentenced to suffer the penalty of an indeterminate
sentence from eight (8) years and one (1) day of prision mayoras
minimum to fourteen (14) years, eight (8) months, and one (1) day
of reclusion temporal  as maximum.  Appellant Santiano is further
ordered to pay the heirs of the victim the amounts of P 50,000.00 as
death indemnity, P 31,845.00 as funeral and burial
expenses, P 25,000.00 as exemplary damages, P 30,000.00 as attorneys
fees andP 1,000.00
 
per appearance of counsel. Appellant Santiano shall be credited with
the full extent of his preventive imprisonment.
 
Appellant Rolando Dagani y Reyes is hereby ACQUITTED.
 

SO ORDERED.
 
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
 
WE CONCUR:
 
 
ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson
CONSUELO YNARES-SANTIAGO ROMEO J. CALLEJO, SR.
Associate Justice Associate Justice
 
MINITA V. CHICO-NAZARIO
Associate Justice
 

CERTIFICATION
 
Pursuant to Section 13, Article VIII of the Constitution, it is
hereby certified that the conclusions in the above Decision were
reached in consultation before the case was assigned to the writer of
the opinion of the Courts Division.
 
 
 
 ARTEMIO V. PANGANIBAN
Chief Justice
 

[1]
 P enned by Associ at e Just i ce Juan Q. Enri quez, Jr., wi t h Associ at e Just i ces Eugeni o S .
Labi t ori a and Mari ano C . Del C ast il l o, concurri ng, C A rol l o , pp. 203-210.
[2]
 R ecords, p. 1.
[3]
 C A rol l o , pp. 88- 89.
[4]
 Id.  at 121.
[5]
 Id.  at 209.
[6]
 Roll o , pp. 6- 7.
[7]
 Id.  at 3- 87.
[8]
 C A rol l o , pp. 121- 122.
[9]
 Id.  at 123- 124.
[10]
 Peopl e v. Del a Cruz , 400 Phi l . 872, 878 (2000);  C abusl ay v. Peopl e , G.R .
No.  129875,  S ept em ber 30, 2005, 471 S CR A 241, 253.
[11]
 Peopl e v. Del a C ruz , supra not e 10;  T ol edo  v. Peopl e , G.R . No. 158057,  S ept em ber 24,
2004, 439 S CR A 94, 109;  Peopl e v. Escarl os , 457 P hil . 580, 596 (2003).
[12]
 Peopl e v. Del a C ruz , supra not e 10.
[13]
 Peopl e v. Escarl os , supra not e 11, at 595;  Peopl e v. Sarmi ent o , G.R . No. 126145,  Apri l
30, 2001, 357 S CR A 447, 457.
[14]
 Peopl e v. Escarl os , supra not e 11, at 596;  Peopl e v. Dami t an , 423 Phi l . 113, 123 (2001).
[15]
 C A rol l o , p. 206.
[16]
 Peopl e v. Escarl os , supra not e 11, at 597;  Peopl e v. C al abroso , 394 Phi l . 658, 670
(2000);  Peopl e v. Maal at , 341 Phi l . 200, 206 (1997).
[17]
 Peopl e v. Escarl os , supra not e 11, at 597;  Peopl e v. Rabanal , 402 Phi l . 709, 715 (2001).
[18]
 Peopl e v. Escarl os , supra not e 11, at 597;  Peopl e v. Genebl azo , 414 Phi l . 103, 110 (2001).
[19]
 Peopl e v. Escarl os , i d.
[20]
 Cabusl ay v. Peopl e , supra not e 10, at 262.
[21]
 S ee Senoj a v. Peopl e , G.R . No. 160341, Oct ober 19, 2004, 440 S CR A 695, 708;  Peopl e v.
Escarl os , supra not e 11, at 597;  Peopl e v. Ubal do , 419 P hil . 718, 730 (2001);  Peopl e
v. Basadre , G.R . No. 131851, F ebruary 22, 2001, 352 S CR A 573, 585;  Peopl e v. More ,
378 P hil . 1153, 1161 (1999);  Peopl e v. Real , 367 P hil . 524, 535- 536 (1999).
[22]
 C A rol l o , p.  51.
[23]
 Id.  at 75.
[24]
 Id.
[25]
 Id.  at 120.
[26]
 S ee Peopl e v. Escarl os , supra not e 11;  Peopl e v. Del a  Cruz , supra not e 10, at 879;  Peopl e
v. Babor , 330 Phi l . 923, 930-931 (1996).
[27]
 Tol edo  v. Peopl e , supra not e 11, at 110.
[28]
 Senoj a v. Peopl e , supra not e 21, at 703;  Peopl e v. N oay , 357 P hil . 295, 308 (1998).
[29]
 C A rol l o , p. 124.
[30]
 Id.  at 125,  ci t i ng , e.g.,  Peopl e v. Moj i ca , 42 Phi l . 784.
[31]
 Peopl e v. C at bagan , G.R . Nos. 149430-32,  F ebruary 23, 2004, 423 S CR A 535,
553;  Peopl e v . Peral t a , 403 P hil . 72, 89 (2001);  Peopl e v. Ul ep , 395 P hil . 78, 87
(2000);  Peopl e v. Bel bes , 389 P hil . 500, 509 (2000).
[32]
 C A rol l o , p. 207.
[33]
 S ee Peopl e v. C at bagan , supra not e 31, at 554.
[34]
 Supra not e 31.
[35]
 Id . at 92.
 FIRST DIVISION
 
 
PEOPLE OF   G.R. No. 168051
THE PHILIPPINES,  
Plaintiff-Appellee, Present:
   
  PANGANIBAN, C.J.
  Chairperson,
  YNARES-SANTIAGO,
- versus - AUSTRIA-MARTINEZ,
  CALLEJO, SR., and
  CHICO-NAZARIO, JJ.
   
   
HONORATO C. BELTRAN, Promulgated:
JR.,  
Accused-Appellant. September 27, 2006
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
 

DECISION
 

CHICO-NAZARIO, J.:
 

Murder is one of the instances when man descends to a level lower than that

of the beast, for it is non-instinctive killing, a deliberate destruction of a member of

the same species for reasons other than survival.[1]

 
This is an appeal from the Decision of the Court of Appeals in CA-G.R. CR
No. 00755, dated 31 March 2005,[2] affirming with modifications the Decision of
the Regional Trial Court (RTC) ofPallocan, Batangas City, Branch 4, in Criminal
Case No. 10525, dated 9 October 2001,[3] convicting the accused-
appellant Honorato C. Beltran, Jr., alias Jun-Jun and Junior, of the crime of
murder, sentencing him to suffer the penalty of reclusion perpetua, and ordering
him to pay the heirs of deceased Norman H. Concepcion, the amount
of P75,000.00 as moral damages, P50,000.00 as civil indemnity, and P18,252.00 as
actual damages.
 
On 3 November 1999, appellant was indicted in an Information [4] for Murder
allegedly committed as follows:
 
That on or about October 25, 1999 at around 10:00 oclock in the evening
at Velasquez Road, Brgy. Sta. Rita, Batangas City, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, while armed with
a bolo, a deadly weapon, with intent to kill and with the qualifying circumstance
of treachery, did then and there, willfully, unlawfully and feloniously attack,
assault and hack with the said bolo, suddenly and without warning one
Norman Concepcion y Habla while the latter was unarmed and completely
defenseless, thereby hitting him on the different parts of his body, which directly
caused the victims death.
 

When arraigned on 9 November 1999, appellant pleaded Not Guilty to the

charge therein.[5] Thereafter, trial on the merits ensued.

 
The prosecution established its case through the testimonies of its witnesses,
namely: Ever D. Sales, Rolando G. Dalisay, Dr. Dinah R. Lucero, SPO1 Julian M.
de Castro and Normita H.Concepcion. Their testimonies are summarized as
follows:
 
Ever D. Sales (Ever) was a resident of Velasquez
Subdivision, Barangay Sta. Rita, Batangas City. He worked as a gasoline boy in
Caltex Gasoline Station at San Pascual, Batangas City.
 
Ever testified that on 25 October 1999, at about 10:00 in the evening, he left
his workplace and proceeded home using his bicycle. While traversing
the Velasquez Road, he saw appellant holding a bolo and standing in front of his
house situated at the side of Velasquez Road. On the opposite side of the same
road, he saw Norman H. Concepcion (Norman) standing in front of an automobile
repair shop. Exhausted by the travel, Ever decided to stop by and rest momentarily
at a nipa hut near the same road. Minutes later, he saw appellant, from a distance
of six meters, stalking Norman who was then walking near the automobile
shop. Appellant approached Norman, and, without a warning, hacked him with a
bolo. Norman tried to avoid the blow by moving backwards and shielding his face
with his left arm. However, Normans left hand was hit and wounded by the
bolo. When Norman turned around and ran, appellant hacked him at the back
causing him to fall down on a grassy area.Appellant repeatedly
hacked Norman with a bolo.
 
Fearing for his own safety, Ever immediately left the nipa hut and sought
help in a nearby sari-sari store. Later, he went to the crime scene and found no
trace of appellant. He also discovered the bloodied and lifeless body
of Norman sprawled on the ground. Afterwards, he proceeded home and narrated
to a relative named Renato Sales (Renato) what he just
witnessed. Later, Renato informed a certain Carmina Baliwag of the incident, who
in turn, relayed the same to Normita Concepcion (Normita), the sister
of Norman. Ever also declared that he did not know of any reason why appellant
hacked Norman to death.[6]
 
Rolando G. Dalisay (Rolando) is a resident of Velasquez
Subdivision, Barangay Sta. Rita, Batangas City, where he is engaged in a carpentry
business.
 
Rolando supported the testimony of Ever by stating that on 25 October
1999, at around 10:00 in the evening, he was walking along Velasquez Road to
buy some medicines when, at a distance of about 15 meters, he saw appellant
hacking Norman with a bolo. He noticed that when Norman fell on the ground,
appellant continued his onslaught by relentlessly hacking the former. Afraid that
he might be seen by the appellant, he immediately went home and informed his
wife about the incident. When the barangay tanod and policemen arrived at the
crime scene, he proceeded thereto and told them what he had witnessed. Further,
he stated that he personally knows appellant as the latter was a former employee in
his carpentry business. He also personally knew Norman since the latter was a
relative of his wife. Lastly, he testified that appellant and Norman had a previous
quarrel which, however, was subsequently settled in their barangay office.[7]
 
SP01 Julian D. Mendoza was the investigating officer of the instant case.
On 26 October 1999, at about 12:00 midnight, his station received an information
regarding the hacking incident. He and a certain SPO3 Mario Panaligan rushed to
the crime scene. Upon arriving thereat, he inquired from the people present the
identity of the dead person and of the killer. Rolando approached him and narrated
that the dead person was Norman and the killer was appellant. Normita also
arrived at the crime scene and told him relevant information. With this lead, they
proceeded to appellants house but the latter was not there.
 
On 27 October 1999, a certain Tomas Dimacuha surrendered the
appellant. Later, the brother of appellant, Sherman Beltran, brought before him the
bolo, about three palms in length, used by appellant in hacking Norman to death.[8]
 
Dr. Dinah R. Lucero, Medical Officer IV of the Batangas City Health
Office, testified that she conducted the post mortem examination on the cadaver
of Norman on 26 October 1999 at the Eternal Memorial Chapel. She declared that,
aside from the fact that Normans body was almost decapitated, the latter suffered
seven stab wounds and his cause of death was massive blood loss secondary to
multiple hacking wound.[9] The death certificate issued by Lucero shows
that Norman was twenty-two (22) years of age at the time of his demise.[10]
 
Lastly, Normita, sister of Norman, testified that on the evening of 25
October 1999, Carmina Baliwag called her on the telephone and instructed her to
proceed to Velasquez Road. Upon arriving thereat, she was shocked to discover
the dead body of Norman lying on the ground. She claimed that appellant had a
motive to kill Norman since an altercation occurred between the two on 22
October 1999, which, however, was settled later on 25 October 1999. In
establishing her claim for damages, she stated that she spent an amount
of P61,000.00 in connection with Normans death, and that the latter worked as an
assistant to the electrician at First Gas Company with a monthly income
of P6,000.00. She also claimed that she was shocked at the sudden and gruesome
death of Norman, and that she felt pity for him.[11]
 
On the other hand, the defense argued its case by presenting the testimony of
the appellant himself and a certain Dr. Luisito Briones.
 
Appellant admitted that he hacked Norman with a bolo but insisted that he
did the same in self-defense. He narrated that on 25 October 1999, at
about 10:00 in the evening, he and his mother were resting inside their house when
suddenly, he heard Norman shouting and insulting him outside their house and
challenging him to a fight. When he came out of the house, he noticed
that Normanwas accompanied by several unidentified persons. Thereafter, he tried
to pacify Norman but the latter slapped the back of his head and pulled out an ice
pick from his pocket. He retreated and looked for something to defend himself. He
found a bolo near a tamarind tree in front of their house and took the
same. When Norman was about to enter appellants house, the latter hacked him
with the bolo.Norman tried to avoid the blow but the same hit his left
arm. Appellant lost grip of the bolo and the same fell on the ground. While
appellant was reaching for the bolo, Norman grabbed his head and tried to stab him
with the ice-pick. Appellant, however, eluded the counter-attack but he sustained a
minor wound on the forehead. Upon gaining control of the scuffle, appellant took
the bolo and hackedNorman four consecutive times, most of them landed on the
head. When appellant noticed that Norman was no longer moving, he fled therein
and went to his brother, Sherman Beltran, in Bauan,Batangas, where he stayed that
same night and hid therein the bolo. The next day, he went to his sisters house
in Lipa City. Later that day, he went to the Granja Hospital, also in Lipa City, for
treatment of his wound on the forehead.
  
Appellant also claimed that on 22 October 1999, he was mauled by Norman
near a sari-sari store; that Norman is taller than him since he is only 54 in height;
that he was forced to kill Norman because the latter insulted him and his mother;
and that he was on his way to Bauan City to surrender to police when he was
apprehended by the barangay officers in Lipa City.[12] Appellant was twenty-nine
years (29) of age at the time of his arrest.[13]
 
Dr. Luisito D. Briones testified that he treated appellant on the morning
of 26 October 1999 at Granja Hospital in Lipa City for a lacerated wound on the
forehead. He also claimed that the wound was possibly caused by a knife and that
it was already on the healing stage. He also issued a medical certificate attesting to
the same.[14]
 
On 9 October 2001, the RTC rendered its Decision[15] finding appellant
guilty beyond reasonable doubt of the crime of murder. It reasoned that appellants
claim of self-defense cannot be sustained in view of the positive and credible
testimonies of the prosecution witnesses. In closing, the trial court ruled:
 
In the light of all the foregoing consideration and upon the evidence,
accused Honorato Beltran, Jr. y Casia alias Jun-Jun is hereby found GUILTY
beyond reasonable doubt of the crime of Murder charged in the information.
Consequently, the accused is hereby sentenced to Reclusion perpetua together with
all the accessory penalties inherent therewith and to pay the costs. He is further
directed to indemnify the heirs of Norman Concepcion in the sum of P61,000.00 as
actual damages and the sum of P75,000.00 as moral damages.[16]
 
 

Aggrieved, appellant filed a notice of appeal therein on 22 October 2001.

[17]
 Subsequently, on 3 January 2003, appellant filed his Appellants Brief with this

Court assailing the Decision of the RTC dated 9 October 2001.[18] Pursuant to our

ruling in the case of People v. Mateo,[19] we issued a Resolution dated 8 November

2004, transferring the instant case to the Court of Appeals for disposition. [20] On 31
March 2005, the Court of Appeals promulgated its Decision affirming with

modifications the assailed RTC Decision. Aside from reducing the amount of

actual damages awarded by the RTC, it also ordered appellant to pay the heirs

of Norman an amount of P50,000.00 as civil indemnity. The dispositive portion

thereof reads:
 
WHEREFORE, the appealed Decision is AFFIRMED with
MODIFICATION. Aside from moral damages in the amount of P75,000.00,
appellant is ordered to pay the heirs of the deceased, NormanConcepcion, the
following amounts: (a) Fifty Thousand (P50,000.00) as civil indemnity; and (b)
Eighteen Thousand Five Hundred Twenty-Five (P18,525.00) as actual damages.[21]
 

Dismayed, appellant appealed the afore-quoted Decision before this Court

by adopting and invoking the same arguments stated in his Appellants Brief

dated 3 January 2003, to wit:

 
I.
 
 THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO
THE TESTIMONY OF EVER SALES DESPITE OF ITS BEING
UNBELIEVABLE AND BIASED, INSTEAD OF THE SELF-DEFENSE
INTERPOSED BY THE APPELLANT.
 
II.
 
THE TRIAL COURT GRAVELY ERRED IN CONSIDERING THE
QUALIFYING CIRCUMSTANCE OF TREACHERY DESPITE THE
PROSECUTIONS FAILURE TO ESTABLISH THE SAME BEYOND
REASONABLE DOUBT.
 
III.
 
ASSUMING THAT ACCUSED-APPELLANT IS NOT ENTITLED TO
THE JUSTIFYING CIRCUMSTANCE OF SELF-DEFENSE, THE TRIAL
COURT ERRED IN NOT CONSIDERING IN HIS FAVOR THE MITIGATING
CIRCUMSTANCES OF SUFFICIENT PROVOCATION ON THE PART OF
THE OFFENDED PARTY WHICH IMMEDIATELY PRECEDED THE ACT
AND VOLUNTARY SURRENDER.
 
IV.
 
THE TRIAL COURT GRAVELY ERRED IN AWARDING
EXCESSIVE ACTUAL DAMAGES.[22]
 
 
Anent the first issue, appellant argued that the testimony of prosecution
witness, Ever, is biased, unbelievable and confusing; that the trial court should not
have considered them; that his acquittal is proper on the ground of self-defense;
and that the elements of self-defense are present in the instant case.
 
The contention is without merit.
 
Prosecution eyewitness, Ever, testified that on 25 October 1999, at
about 10:00 in the evening, he left his workplace and proceeded home using his
bicycle. While traversing Velasquez Road, he saw appellant holding a bolo and
standing in front of his house situated at the side of Velasquez Road. On the
opposite side of the same road, he saw Norman standing in front of an automobile
repair shop. Exhausted by the travel, he decided to stop by and rest momentarily at
a nipa hut near the same road. Minutes later, he saw appellant, from a distance of
six meters, stalking Norman who was walking then near the automobile repair
shop. Appellant approached Norman, and without a warning, repeatedly hacked
him with a bolo. Although it occurred late in the evening, the light coming from
the moon and the electric post therein provided him with good visibility to identify
appellant and Norman, and to witness how the heinous act was executed.[23] This
testimony was corroborated by another prosecution eyewitness, Rolando. Thus, the
positive identification and categorical declarations of Ever on the witness stand
under solemn oath deserves full faith and credence.
 
Appellant, however, posited that there were inconsistencies between the
testimony of Ever in open court and his sworn statements before the
investigators. According to appellant, Ever testified during his direct examination
that he was at a distance of about six meters, more or less, from appellant and
Norman when the hacking occurred; that the place where the killing occurred was
lighted by the moon; and that during his cross-examination, he stated that there
was no other person within the area when he witnessed the hacking. On the other
hand, appellant claimed that Ever declared in his sworn statements before the
investigators that he was more or less 20 meters from the place where the hacking
took place; that there was light coming from the electric post and the moon; and
that during his cross-examination, he also stated that the mother of appellant was
outside the house when the hacking took place.[24]
 
This Court had consistently ruled that the alleged inconsistencies between
the testimony of a witness in open court and his sworn statement before the
investigators are not fatal defects to justify a reversal of judgment of
conviction. Such discrepancies do not necessarily discredit the witness since ex-
parte affidavits are almost always incomplete. It bears emphasis that a sworn
statement or an affidavit does not purport to contain a complete compendium of the
details of the event narrated by the affiant. Sworn statements taken ex-parte are
generally considered to be inferior to the testimony given in open court.[25]
 
 Moreover, as aptly stated by the Office of the Solicitor General (OSG),
when Ever testified in court that there was light coming from the moon, sir he was
not denying what he stated in his sworn statement that there was a light from the
lamp (electric) post and the moon.[26] The appellant also testified that the place
where the hacking incident occurred was lighted by an electric post. As the
foregoing circumstances clearly established that the place where the hacking
occurred was lighted by the moon and an electric post, the testimony of Ever as to
the identity of the killer and the victim, and how the killing was executed, must
stand.
 

Further, the alleged inconsistencies with respect to the presence of

appellants mother in the place where the hacking took place, and the distance

between the nipa hut where Ever rested and the area where the hacking took place,

are minor inconsistencies and trivial matters that serve to strengthen rather than

weaken the credibility of Ever for they erase the suspicion of rehearsed

testimony.Also, they are not material in the instant case since none of them is an

essential element of murder.[27]

 
More importantly, the RTC had observed that Ever was candid,
straightforward and credible in giving his testimony on the witness stand. It found
Ever to be unbiased since he was neither a friend nor an enemy of appellant and
Norman but just a mere neighbor. It also found that there was no ulterior motive
for him to testify against appellant.[28]
 
It is a well-settled doctrine in our jurisprudence that when the credibility of a
witness is in issue, the findings of fact of the trial court, its calibration of the
testimonies of the witnesses and its assessment of the probative weight thereof, as
well as its conclusions anchored on said findings are accorded high respect if not
conclusive effect.[29] This is because the trial court has the unique opportunity to
observe the demeanor of a witness and is in the best position to discern whether
they are telling the truth.[30] It is worth stressing at this point that the Court of
Appeals affirmed such findings of the RTC. In this regard, it is settled that when
the trial courts findings have been affirmed by the appellate court, said findings are
generally conclusive and binding upon this Court.[31] We find no compelling reason
to deviate from such findings of the RTC and the Court of Appeals.
 
On another point, appellant contended that he merely acted in self-defense
when he hacked Norman to death.
 
We disagree.
 
Article 11, paragraph (1), of the Revised Penal Code provides for the
elements and/or requisites in order that a plea of self-defense may be validly
considered in absolving a person from criminal liability, viz:
 
ART. 11. Justifying circumstances. The following do not incur any
criminal liability:
 
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.
 

As an element of self-defense, unlawful aggression refers to an assault or

attack, or a threat thereof in an imminent and immediate manner, which places the

defendants life in actual peril.[32] It is an act positively strong showing the intent of

the aggressor and not merely a threatening or intimidating attitude.[33] It is also

described as a sudden and unprovoked attack of immediate and imminent kind to

the life, safety or rights of the person attacked.[34]

 
There is an unlawful aggression on the part of the victim when he puts in
actual or imminent peril the life, limb, or right of the person invoking self-
defense. There must be actual physical force or actual use of weapon.[35] In order to
constitute unlawful aggression, the person attacked must be confronted by a real
threat on his life and limb; and the peril sought to be avoided is imminent and
actual, not merely imaginary.[36]
 
In the instant case, there was no unlawful aggression on the part
of Norman that justified the act of appellant in hacking him to death. There was no
actual or imminent danger on the life of appellant when he came face to face
with Norman. As narrated by Ever, Norman was just walking on the road and was
not provoking appellant into a fight. It was the appellant who approached and
suddenly hacked Norman repeatedly even when the latter was already fallen on the
ground. In short, appellant was the unlawful aggressor.
 
Even if this Court were to adopt the version of facts of appellant, the result
or conclusion would be the same.
 
Appellant alleged that he was resting inside his house when he
heard Norman shouting invectives against him and challenging him to a fight.
When he went outside the house to pacify Norman, the latter slapped the back of
his head and brought out an ice-pick. Appellant retreated and when Norman tried
to follow him inside the house, he took a bolo and repeatedly hacked Norman. The
foregoing circumstances does not justify the act of appellant in
hacking Norman. Obviously, mere shouting of invectives and challenging one to a
fight does not put ones life in actual or imminent danger. In the same vein, mere
slapping of ones head does not place a persons life in serious danger such that it
compels him to use a bolo and hack the offender.
  
As regards the brandishing of an ice-pick, appellant had several less harmful
means of avoiding the same as he was not cornered or trapped. He could have run
inside his house and locked the door, or, called the neighbors or authorities for
help. Unfortunately, appellant did not avail himself of any of those options and
instead chose to hack Norman. Quite conspicuously, no convincing evidence was
presented to show that Norman was, indeed, armed with an ice-pick at the time of
the incident. In fact, no ice-pick was found in the crime scene nor in the body
of Norman. There was also no proof adduced showing that Norman attempted to
stab appellant or tried to barge into the latters house.[37]
 
The fact that appellant sustained an injury on his head, allegedly caused
by Normans ice-pick, does not signify that he was a victim of unlawful aggression
or that he acted in self-defense.[38]The physician who treated appellant testified that
the latter was diagnosed on 26 October 1999, the day after the hacking incident;
that appellant was discharged on the same day he was treated in the hospital since
he was only an out-patient; and that at the time he examined the head injury of
appellant, it was already on its healing stage.[39] It is clear from the foregoing that
appellants head injury was not serious or severe. The cause of the same is likewise
doubtful. Thus, the superficiality of the injury sustained by appellant is no
indication that his life and limb were in actual peril.[40]
 
In stark contrast, Norman was almost decapitated and sustained fatal injuries
on the head and neck. All in all, Norman sustained seven fatal wounds, most of
them located at the head and neck.Based on the foregoing, it is difficult to believe
that Norman was the unlawful aggressor. The gravity, location, and number of
wounds sustained by Norman are eloquent physical evidence showing a
determined effort on the part of appellant to kill Norman, and not just to defend
himself.[41]
 
Time and again, we held that unlawful aggression is a sine qua non for
upholding the justifying circumstance of self-defense.[42] It is an essential and
indispensable requisite, for without unlawful aggression on the part of the victim,
there can be, in a jural sense, no complete or incomplete self-defense.[43] Without
unlawful aggression, self-defense will not have a leg to stand on and this justifying
circumstance cannot and will not be appreciated even if the other elements are
present.[44] To our mind, unlawful aggression is clearly absent in the case at bar.
 
The second element of self-defense requires that the means employed by the
person defending himself must be reasonably necessary to prevent or repel the
unlawful aggression of the victim.The reasonableness of the means employed may
take into account the weapons, the physical condition of the parties and other
circumstances showing that there is a rational equivalence between the means of
attack and the defense.[45]
 
The act of appellant in repeatedly hacking Norman on his head and neck was
not a reasonable and necessary means of repelling the aggression allegedly
initiated by the latter. As stated earlier, no convincing evidence was presented to
show that Norman was armed with an ice-pick at the time of the incident. In fact,
no ice-pick was found in the crime scene or in the body of the victim. There was
also no proof showing that Norman attempted to stab appellant or tried to barge
into the latters house. Granting arguendo that Norman was armed with an ice-pick,
the repeated hackings were not necessary since he can overpower or
disable Norman by a single blow on non-vital portion/s of his body.
 
Again, as correctly observed by the OSG, had the appellant merely wanted
to protect himself from what he perceived as an unlawful aggression of Norman,
he could have just disabled Norman.[46] When Norman fell on the ground, appellant
should have ceased hacking the former since the alleged aggression or danger no
longer exists. By appellants own testimony, however, he hackedNorman with his
bolo even when the latter was already lying on the ground. It appears, therefore,
that the means used by appellant, which were simultaneous and repeated hackings,
were adopted by him not only to repel the aggression of Norman but to ensure the
latters death. In sum, such act failed to pass the test of reasonableness of the means
employed in preventing or repelling an unlawful aggression.
 
Like an alibi, self-defense is inherently weak for it is easy to fabricate.
[47]
 Thus, this Court had consistently ruled that where an accused admits killing the
victim but invokes self-defense, it is incumbent upon the accused to prove by clear
and convincing evidence that he acted in self-defense.[48] As the burden of evidence
is shifted on the accused to prove all the elements of self-defense, he must rely on
the strength of his own evidence and not on the weakness of the prosecution.[49] In
the instant case, appellant failed to discharge such burden with clear and
convincing evidence.Therefore, his plea of lawful self-defense must fall.
 
With regard to the second issue, appellant contended that there was no
treachery that qualified his act to murder in the absence of direct evidence showing
that his attack on Norman was sudden; that Norman was not deprived of an
opportunity to defend himself; and that appellant did not employ treachery to
insure the execution of the crime.
 
Appellants contention is bereft of merit.
 

Treachery is a sudden and unexpected attack under circumstances that

render the victim unable and unprepared to defend himself by reason of the

suddenness and severity of the attack.[50] It is as an aggravating circumstance that

qualifies the killing of a person to murder. Article 14, paragraph (16) of the

Revised Penal Code states the concept and essential elements of treachery as an

aggravating circumstance, thus:

 
ART. 14. Aggravating circumstances. - The following are aggravating
circumstances:
x x x x
 
 16. That the act be committed with treachery (alevosia).
 
There is treachery when the offender commits any of the crimes against the
person employing means, methods, or forms in the execution thereof which tend
directly and specially to insure its execution, without risk to himself arising from
the defense which the offended party might make.
 
 

As can be gleaned from the foregoing, two essential elements/conditions are

required in order that treachery may be appreciated: (1) The employment of means,

methods or manner of execution that would insure the offenders safety from any

retaliatory act on the part of the offended party, who has, thus no opportunity for

self-defense or retaliation; and (2) deliberate or conscious choice of such means,

methods or manner of execution. Further, it must always be alleged in the

information and proved in trial in order that it may be validly considered.[51]

In the case at bar, treachery was alleged in the Information against

appellant. Moreover, all the essential elements/conditions of treachery were

established and proven during the trial.

Appellant, while holding a bolo, had waited for the dark to set in before

making his move so that nobody, especially Norman, would notice his impending

attack. When he saw Norman, alone and unarmed, casually walking near an auto

repair shop, he followed him surreptitiously. Later, appellant came out and

approached the unsuspecting Norman, who, in turn, faced the former. Appellant

took advantage of the stunned and hapless Norman by swiftly hacking him with a

bolo. As the assault was sudden and unexpected, Norman was forced to move

backwards and raise his left arm to shield his face but it was too late. Normans left

arm was immediately hit by the bolo. When Norman turned his back on appellant

and tried desperately to run, appellant hacked him again at the back causing him to

fall on the ground. As the bloodied and moaning Norman was lying on the ground,

appellant unleashed his full wrath by repeatedly hacking him on the neck and

head. Upon noticing that Norman was no longer moving and was, in fact, almost

decapitated, he stopped the hacking and fled the scene.

 
As viewed from the foregoing, the suddenness and unexpectedness of the
appellants attack rendered Norman defenseless, vulnerable and without means of
escape. Appellants use of nighttime and a deadly bolo, as well as the sudden attack
and repeated hackings on the vital portions of Normans body, were especially
adopted by him to immediately cripple Norman and prevent him from retaliating
or escaping. Appellant deliberately adopted them in order to overpower the much
younger, taller, and larger Norman. Considering that Norman was alone and
unarmed, there was absolutely no way for him to defend himself or
escape. Further, the fact that Norman sustained several fatal wounds while
appellant allegedly sustained a single superficial wound on his forehead shows
thatNorman was not able to retaliate or defend himself. Given the foregoing, there
is no doubt in our minds that appellant intended and was determined to
kill Norman.
 
Appellant, however, asseverated that there was no treachery since the attack
was frontal or face to face, such that Norman had been forewarned of the attack
and, thus, placed him in a position where he can defend himself. Appellant also
claimed that there was a quarrel between him and Norman prior to the hacking
incident which, in effect, negate treachery since it disproved the fact that the attack
was sudden and unexpected. We are not persuaded.
 
 There is no dispute that Norman was facing appellant at the time of the first
blow. Subsequently, however, Norman turned his back and tried to run but he was
hacked at the back, and when he fell on the ground, he was hacked again
repeatedly. It is settled that treachery is to be appreciated when the victim was
initially attacked frontally, but was attacked again after being rendered helpless
and had no means to defend himself or to retaliate.[52] As long as the attack was
sudden and unexpected, and the unarmed victim was not in a position to repel the
attack, there is treachery.[53]
 
The quarrel between Norman and appellant prior to the hacking incident
does not negate treachery. It is true that there is no treachery if the killing was
preceded by an altercation or dispute. The same, however, does not apply in the
instant case. The misunderstanding between the two occurred on 22 October
1999. This was settled before their barangay officials on the morning of 25
October 1999. Cooler heads then had already set in. In fact, the two shook hands
before the same barangay officials. Thus, there was no reason for Norman to
suspect that appellant still held a grudge against him and to prepare or anticipate
appellants retaliation. It must also be noted that no conversation or struggle
occurred between them shortly before the hacking incident.
 
Appellant argued that if his plea of self-defense cannot be considered, he is
still entitled to the mitigating circumstances of sufficient provocation on the part of
the offended party and voluntary surrender under Article 13 paragraphs (4) and (7)
of the Revised Penal Code, respectively.
 
We reject these contentions.
 
Article 13 paragraph (4) of the Revised Penal Code provides that a persons
criminal liability may be mitigated if there was a sufficient provocation or threat
on the part of the offended party which immediately preceded the crime. Before
the same can be appreciated, the following elements must concur: (1) That the
provocation or threat must be sufficient or proportionate to the crime committed
and adequate to arouse one to its commission; (2) That the provocation or threat
must originate from the offended party; and (3) That the provocation must be
immediate to the commission of the crime by the person provoked.
 
Norman did not in any way provoke appellant into a fight on that fateful
night. There was no argument or physical struggle that ensued between them
shortly before appellant hacked Norman with a bolo. Norman was innocently
walking along the road when, all of a sudden, appellant surfaced and hacked him
in rapid succession. The alleged altercation between the two occurred much earlier
(22 October 1999) as to reasonably and sufficiently incite the appellant to act the
way he did. In the absence of sufficient provocation on the part of the offended
party, appellants assertion of mitigating circumstance cannot be
sustained. Moreover, and more importantly, this ordinary mitigating
circumstance cannot offset the qualifying aggravating circumstance of
treachery which is present in the instant case.
 
Likewise, appellant is not entitled to the mitigating circumstance of
voluntary surrender. Article 13, paragraph (7) of the Revised Penal Code states
that the offenders criminal liability may be mitigated if he voluntarily surrendered
to a person in authority or his agents. Accordingly, the essential elements of
voluntary surrender are: (1) that the offender had not been actually arrested or
apprehended; (2) that the surrender was voluntary and spontaneous; and (3) that
the offender surrendered himself to a person in authority or his agent.
 
Appellant was already apprehended for the hacking incident by
the barangay officials of Lipa City just before he was turned over to the police by a
certain Tomas Dimacuha.[54] Assuming that appellant had indeed surrendered to the
authorities, the same was not made spontaneously.[55] Immediately after the
hacking incident, appellant, instead of proceeding to the barangay or police, went
to his brother, Sherman Beltran, in Bauan, Batangas, and the next day, to his sister
in Lipa City. It took him three long days to surrender to the police authorities.
[56]
 Moreover, the flight of appellant and his act of hiding until he was apprehended
by the barangay officials are circumstances highly inconsistent with the
spontaneity that characterizes the mitigating circumstance of voluntary surrender.
[57]

 
As to the last issue, appellant insisted that the trial court has awarded
excessive damages in favor of Normans heirs. He argued that there was no proof or
justification for the same.
 
When death occurs due to a crime, the following damages may be awarded:
(1) a civil indemnity ex delicto for the death of the victim; (2) actual or
compensatory damages; (3) moral damages; (4) exemplary damages; and (5)
temperate damages.[58] Thus, we agree with the Court of Appeals that the award
of P50,000.00 for civil indemnity ex delicto to Normans heirs is proper without
need of proof other than appellants commission of murder that resulted
in Normans death.[59] Likewise, we agree with the Court of Appeals that moral
damages should be awarded since Normita testified during the trial that she
suffered moral shock and wounded feelings because of the brutal and sudden death
of Norman. However, we deem it necessary to reduce the amount of the same
fromP75,0000.00 to P50,000.00.
 
Normita claimed that she spent a total amount of P61,080 for the burial and
funeral expenses of Norman. However, the receipts on record shows that only an
amount of P18,420.82 was spent therein.[60] Normitas claim of expenses for the
food, drinks, flowers, chairs and tables during the funeral and burial of Norman, as
well as the traditional 40 days prayer thereafter, were not supported by any
receipts. These expenses are merely written, listed, and signed by Normita in one
sheet of yellow paper, and submitted as evidence in the trial court. Thus, as general
rule, Normita is entitled only to an amount of P18,420.82 since actual damages
may be awarded only if there are receipts to support the same. However, in the
case of People v. Dela Cruz,[61] this Court declared that when actual damages
proven by receipts during the trial amount to less than P25,000.00, such as in the
present case, the award of temperate damages for P25,000.00, is justified in lieu of
actual damages for a lesser amount. This Court ratiocinated therein that it was
anomalous and unfair that the heirs of the victim who tried but succeeded in
proving actual damages to less P25,000.00 only would be in a worse situation than
those who might have presented no receipts at all but would be entitled
to P25,000.00 temperate damages. Thus, instead of P18,420.82, an amount
of P25,000.00 as temperate damages should be awarded to the heirs
of Norman. Actual damages for loss of earning capacity cannot be awarded in this
case since there was no documentary evidence to substantiate the same.
[62]
Although there are exceptions to this rule, none is availing in the present case.[63]
 
Moreover, exemplary damages in the amount of P25,000.00 should be
awarded in this case since the qualifying circumstance of treachery was firmly
established.[64]
 
WHEREFORE, the Decision of the Court of Appeals dated 31 March 2005
is hereby AFFIRMED with MODIFICATIONS: We award Normans heirs civil
indemnity of P50,000.00 for Normans death; moral damages, in the amount
of P50,000.00; temperate damages, in lieu of actual damages, in the amount
of P25,000.00; and lastly, exemplary damages in the amount of P25,000.00.
 

SO ORDERED.
 
 
  MINITA V. CHICO-NAZARIO
Associate Justice
 
 
 

WE CONCUR:
 
 
ARTEMIO V. PANGANIBAN
Chief Justice
 Chairperson
 
 
 
CONSUELO YNARES-SANTIAGO MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice Associate Justice
   
   
   
ROMEO J. CALLEJO, SR.
Associate Justice

 
 
 

CERTIFICATION
 
Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that
the conclusions in the above Decision were reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.
 
 
 
  ARTEMIO V. PANGANIBAN
Chief Justice

[1]
 People v. Tuson, G.R. Nos. 106345-46, 16 September 1996, 261 SCRA 711, 713.
[2]
 Rollo, pp. 3-15; penned by Associate Justice Magdangal M. de Leon with Associate Justices Salvador J.
Valdez, Jr., and Mariano C. Del Castillo, concurring.
[3]
 CA rollo, pp. 16-22.
[4]
 Records, pp. 1-2.
[5]
 Id. at 14.
[6]
 Id. at 7-8.
[7]
 Id. at 4-5.
[8]
 Id. at 6.
[9]
 Id. at 86-88.
[10]
 Id.
[11]
 Id. at 3.
[12]
 TSN, 1 December 2000.
[13]
 Records, p. 10.
[14]
 TSN, 6 June 2001.
[15]
 CA rollo, pp. 16-22.
[16]
 Id. at 22.
[17]
 Records, p. 149.
[18]
 CA rollo, pp. 59-75.
[19]
 G.R. Nos. 147678-87, 7 July 2004, 433 SCRA 640.
[20]
 Id. at 158.
[21]
 Rollo, p. 14.
[22]
 Rollo, pp. 7-8.
[23]
 Records, pp. 7-8.
[24]
 CA rollo, pp. 59-75.
[25]
 People v. Lazaro, 319 Phil. 352, 361 (1995); People v. Layno, 332 Phil. 612, 625 (1996); People
v. Foncardas, G.R. No. 144598, 6 February 2004, 422 SCRA 356, 370.
[26]
 CA rollo, p. 130.
[27]
 People v. Monieva, 388 Phil. 915, 924 (2000).
[28]
 Records, p. 10.
[29]
 People v. Abolidor, G.R No. 147231, 18 February 2004, 423 SCRA 260, 265.
[30]
 People v. Matito, G.R. No. 144405, 24 February 2004, 423 SCRA 617, 625.
[31]
 People v. Castillo, G.R. No. 118912, 28 May 2004, 430 SCRA 40, 50.
[32]
 People v. Alconga and Bracamonte, 78 Phil. 366, 374 (1947).
[33]
 People v. Arizala, 375 Phil. 666, 674 (1999).
[34]
 People v. Bausing, G.R No. 64965, 18 July 1991, 199 SCRA 355, 361.
[35]
 People v. Crisostomo, 195 Phil. 162, 172 (1981).
[36]
 Senoja v. People, G.R. No. 160341, 19 October 2004, 440 SCRA 695, 704.
[37]
 CA rollo, p. 21.
[38]
 Roca v. Court of Appeals, G.R No. 114917, 29 January 2001, 350 SCRA 414, 423.
[39]
 Records, p. 132.
[40]
 Senoja v. People, supra note 36.
[41]
 People v. Delmindo, G.R No. 146810, 27 May 2004, 429 SCRA 546, 557.
[42]
 People v. Cario, 351 Phil. 644, 659 (1998).
[43]
 People v. Gallego, 453 Phil. 825, 839 (2003).
[44]
 People v. Caratao, 451 Phil. 588, 602 (2003).
[45]
 People v. Encomienda, 150-B Phil. 419, 433 (1972).
[46]
 CA rollo, p. 124.
[47]
 People v. Carujao, G.R. No. 122767, 20 January 2004, 420 SCRA 207, 213.
[48]
 Rendon v. People, G.R. No. 127089, 19 November 2004, 443 SCRA 142, 146.
[49]
 People v. Castillano, Sr., 448 Phil. 482, 499 (2003).
[50]
 People v. Santos, G.R. No. 127492, 16 January 2004, 420 SCRA 37, 49.
[51]
 Rule 110, Sections 8 and 9, of the Revised Rules on Criminal Procedure.
[52]
 People v. Riglos, 394 Phil. 54, 72 (2000).
[53]
 People v. Agsalog, G.R. No. 141087, 31 March 2004, 426 SCRA 624, 639.
[54]
 CA rollo, pp. 19-21.
[55]
 People v. Mallari, 452 Phil. 210, 223 (2003).
[56]
 Id.
[57]
 People v. Fallorina, G.R. No. 137347, 4 March 2004, 424 SCRA 655, 675.
[58]
 Nueva Espaa v. People, G.R. No. 163351, 21 June 2005, 460 SCRA 547, 555.
[59]
 Id.
[60]
 Records, pp. 90-97.
[61]
 459 Phil. 130, 138-139 (2003).
[62]
 Id.
[63]
 Id.
[64]
 People v. Manambay, G.R. No. 130684, 5 February 2004, 422 SCRA 73, 90.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 148912             September 10, 2003

PEOPLE OF THE PHILIPPINES, appellee, 

vs.
TIMOTEO ESCARLOS, alias "Tomy," appellant.

PANGANIBAN, J.:

By interposing self-defense, herein appellant admits authorship of the

killing. Thus, shifted to him is the burden of proof showing that the killing
was justified. Despite his failure to prove self-defense, he may be convicted
only of homicide, not murder, because of the inability of the prosecution to
establish any qualifying circumstance. Here, treachery is negated by the
victim's awareness of the impending attack.

The Case

For automatic review before the Court is the May 29, 2001 Decision 1 of the
Regional Trial Court (RTC) of Urdaneta, Pangasinan (Branch 46) in
Criminal Case No. U-10792, finding appellant guilty of murder beyond
reasonable doubt and sentencing him to death. The dispositive portion of
the Decision reads as follows:
 "WHEREFORE, JUDGMENT is hereby rendered CONVICTING
beyond reasonable doubt accused Timoteo Escarlos of the
crime of Murder and the Court sentences him to suffer the
penalty of DEATH; he is likewise ordered to indemnify the heirs
of Antonio Balisacan the sum of P28,650.00 as actual
damages, the sum of P50,000.00 as moral damages and the
further sum of P50,000.00 as exemplary damages.

"The Clerk of Court is hereby ordered to prepare the mittimus.

"The Jail Warden, Bureau of Jail Management and Penology

(BJMP) Urdaneta District Jail, Urdaneta City, is hereby ordered
to deliver the living body of Timoteo Escarlos to the National
Bilibid Prisons, Muntinlupa City, immediately upon receipt of
this Decision."2

The Information3 dated August 29, 2000, charged appellant as follows:

"That on or about July 1, 2000, in the evening, at Barangay

Dumanpot, Asingan, Pangasinan and within the jurisdiction of
this Honorable Court, the above-named accused, armed with a
sharp pointed bladed weapon, with deliberate intent to kill,
treachery and evident premeditation, did then and there
willfully, unlawfully and feloniously attack, assault, hold and
stab from behind Brgy. Kgd. Antonio Balisacan, inflicting upon
him the following injuries:

External Findings:

(1) Stab wound located below right clavicle measuring 3

inches length and 8 inches depth.

(2) Stab wound located at left armpit measuring 4 [inches]

length and 6 inches depth.

(3) Stab wound located at mid lumbar area measuring 3

inches length and 4 inches depth

(4) Stab wound located between right first and second

finger measuring 3 inches length.
 Internal Findings:

(1) Cutting of the upper and lower lobe of the right lung.

(2) Cutting of the lower lobe of the left lung.

which injuries directly caused the death of said Brgy. Kgd.

Antonio Balisacan, to the damage and prejudice of his heirs.

"Contrary to Art. 248, Revised Penal Code in relation to

Republic Act No. 7659."4

During his arraignment on November 8, 2000, appellant, with the

assistance of his counsel,5 pleaded not guilty to the charge.[6] After trial in
due course, he was found guilty by the lower court.

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) narrates the factual version of the
prosecution as follows:

"Around 9 o'clock in the evening of July 1, 2000, Antonio

Balisacan went to the residence of Jaime Ulep in Domampot,
Asingan, Pangasinan to attend a benefit dance which was near
the place. In the benefit dance was his son Crisanto Balisacan,
who attended the dance with his friends. Crisanto stood beside
the emcee, Ceasario Escarlos, appellant's brother. While
Ceasario was calling the victim, Antonio Balisacan, to come to
the the stage as he was a kagawad, Crisanto heard the people
at his back shout 'Ay!'. Five (5) to six (6) meters at his back,
with the place [illuminated] by a 50 to 100 watts bulb, he saw
appellant stab his father, Antonio, several times. Crisanto was
momentarily shocked that he was not able to react. When
appellant fled, Crisanto came to his senses and ran to Antonio.
Antonio was still alive so he brought him to Urdaneta Sacred
Heart Hospital where he expired a few minutes after arrival.

"Jesus Dismaya was also beside Ceasario when Antonio

Balisacan's name was called. When he heard people shout, he
turned around and saw from a distance of four (4) meters
appellant stabbing Antonio four (4) times with a ten (10) inch-
long knife. He then called Antonio's brother, [Marcelo]
Balisacan.

"Within the vicinity was Antonio's brother, Marcelo Balisacan.

He was in the Asingan-Urdaneta road, which was about fifteen
(15) meters outside Ulep's yard when he heard people shout
and run from the benefit dance. Wanting to know what was
happening, he went to the benefit dance and saw that Antonio
was stabbed. He went near Antonio, hugged him, and asked
who stabbed him. He replied, 'Tomy Escarlos.'

"Meanwhile around 9:30 of the same evening of July 1, 2000.

SPO1 Patricio Badua was on duty. He received a phone call
about a stabbing incident in a benefit dance in Domampot,
Asingan, Pangasinan. When he went to the scene of the crime,
the victim, Antonio Balisacan was already in the hospital and
appellant had already fled. He later learn[ed] that Antonio died.

"Dr. Noemi Taganas conducted an autopsy on Antonio's body

and found:

External Findings:

(1) Stab wound located below the right clavicle measuring

3 inches length (in) and 8 inches (in) depth.

(2) Stab wound located at left armpit measuring 4 inches

length and 6 inches depth.

(3) Stab wound located at mid lumbar area measuring 3

inches length and 4 inches depth

(4) Stab wound located between right first and second

finger measuring 3 inches length.

Internal Findings:

(1) Cutting of the upper and lower lobe of the right lung.
 (2) Cutting of the lower lobe of the left lung.

"She later issued a death certificate. She stated in court that out
of the four (4) stab wounds, Antonio's second stab wound was
fatal because the lungs were penetrated.

"Dr. Ronald Bandonil, an NBI medico-legal officer confirmed

Taganas' autopsy report. He also conducted an autopsy on the
exhumed body of Antonio. In his autopsy he found that
Antonio's first and second wounds were fatal as these caused
his death due to hypovalmic shock or massive blood
loss."7 (Citations omitted)

Version of the Defense

Appellant, on the other hand, relates his version of the facts in this manner:

"On the night of July 1, 2000, accused TIMOTEO ESCARLOS

together with Rexie Yabes, Fredo Ramos, Erwin Ramos,
Rowena Alamigo and others were at the yard of Jaime Ulep, in
Purok Inanama, Domanpot Asingan, Pangasinan watching a
benefit dance sponsored by Mr. & Mrs. Organization. He was
invited to buy lechon during the benefit dance.

"While thereat, Kgd. Antonio Balisacan who was then drunk,

passed in front of accused and told him, 'You are here again to
create trouble.' Accused was offended so he answered back
saying 'Why do you say that to me when I am not doing any
trouble here.' Antonio Balisacan told him, 'OKINNAM KETDI'
(vulva of your Mother) and without warning boxed him. Timoteo
was hit on the forehead, which left a scar on his forehead about
an inch above the right eyebrow. He intended to box back but
he noticed that the victim was pulling out a kitchen knife, so for
fear of his life, he grabbed the weapon from Antonio Balisacan
and used the knife in stabbing the latter who was hit at the side
below the left armpit. He stabbed him twice and when the victim
was about to fall down, he was able to hit him for the third time.

"The weapon that Timoteo was able to get from Antonio was a
kitchen knife about 10 to 12 inches. Antonio drew the knife from
his left side. Timoteo was able to get hold of the handle of the
 knife when he grappled for the same from the victim, by taking
hold of the knife with his right hand and stabbed Antonio who
was intending to stab him. Antonio was one (1) inch taller than
accused.

"Timoteo's testimony was corroborated by an eyewitness,

CESARIO ESCARLOS, the brother of Timoteo and president of
the Mr. & Mrs. Association which sponsored the benefit dance
on July 1, 2000.

"On the night of July 1, 2000, Cesario Escarlos was at the yard
of Jaime Ulep. At about 9:00 o'clock in the evening of the said
date, he saw his brother Timoteo Escarlos together with Dexie
Yabis standing in a corner watching the dance. Several minutes
later Kgd. Antonio Balisacan arrived and later on, while Cesario
was on his way to urinate. He heard Antonio uttered to Timoteo
'ADDA CAYO MANEN NGA AGARAMED TI NILOLOCON.'
While relieving himself, he heard both Timoteo and Antonio
arguing and before he could get near and pacify them, he saw
them wrestling with each other. Many people were around but
nobody pacified them. Next minute he saw Antonio bloodied
and lying on the ground. There were at least 100 people then
and might have seen the incident. He noticed that Jesus
Dismaya was there but the latter did not do anything. Cesario,
after the incident only stayed there for 3 minutes because he
was looking for his three year-old daughter. In the meantime,
nobody touched the body of the victim."8

The Ruling of the Trial Court

The trial court believed that the prosecution's evidence was sufficient to
convict appellant of murder qualified by treachery. It rejected his plea of
self-defense, because there had been no unlawful aggression on the part
of the victim.

"x x x. The established facts revealed that the victim was one of
the persons who filed a case of malicious mischief against
[appellant]. Said case was filed five (5) months before the
instant case happened. To the mind of the Court, the accused
only found a way of avenging what he felt towards the victim.
 He took advantage of that x x x particular time and place to let
out his feelings in the presence of his barangay mates. Such
hidden grudge by the accused against the victim, established
the motive of the former.

x x x           x x x           x x x

"The second element of self-defense is also lacking. The

nature, location and the number of wounds inflicted on the
victim belie and negate the accused['s] claim of self-defense.
The post mortem findings of the autopsy report showed that the
victim sustained four stab wounds.

"If there is any truth to the accused'[s] claim of self-defense, he

would not have stabbed him several times. [Worse,] the
location of the wounds suggested that the accused was at the
back of the victim when the wounds were inflicted. It is
therefore evident from the conduct of the accused that he was
determined to kill the victim and did not just act to defend
himself. In view of the foregoing, it is no longer necessary to
discuss the third element."9

Hence, this automatic review.10

The Issues

Appellant assigns the following alleged errors for our consideration:

"1. The honorable trial court erred in appreciating treachery as

a qualifying circumstance despite failure of the prosecution to
prove its attendance.

"2. The honorable trial court erred in not finding that the
testimony of the supposed eyewitnesses for the prosecution as
to the attendance of treachery is flawed and unworthy of belief.

"3. The honorable trial court erred in not giving exculpatory

weight to the theory of self-defense interpose[d] by the
accused-appellant.
 "4. The honorable trial court committed a grave and serious
error in not finding that the victim [was] the first to assault
accused.

"5. The honorable trial court erred in considering motive to

establish the guilt of the accused.

"6. The honorable court erred in convicting the accused-

appellant of murder instead of acquitting him or at most
convicting him of homicide."11

These issues boil down to four: (1) sufficiency of the prosecution's

evidence, (2) viability of self-defense, (3) appreciation of treachery as a
qualifying circumstance, and (4) propriety of the penalty and the damages
imposed by the trial court.

The Court's Ruling

The appeal is partly meritorious.

First Issue:

Sufficiency of the Prosecution's Evidence

Although appellant did not directly raise the sufficiency of the prosecution's
evidence as an issue, this Court nonetheless deliberated on it motu proprio,
because an automatic appeal in a criminal action opens the whole case for
review. Indeed, the strength of the prosecution's evidence must be passed
upon, especially in cases in which the death penalty has been imposed by
the trial court.12 We have carefully examined the evidence for the
prosecution and found that the fact of killing and the identity of the killer
were duly established beyond reasonable doubt.

Prosecution Witness Crisanto Balisacan, son of the victim, testified on the

stabbing incident, which had occurred during a benefit dance on that fateful
night of July 1, 2000. The witness' testimony is as follows:

"COURT:

You go to the main point.

ATTY. VELASCO:

While there, did you observe or did you see if there was
any unusual incident that took place?

A:         Yes, your Honor.

Q:         What was that unusual incident you have seen and

observed?

A:         Stabbing incident, your Honor.

COURT:

Who was stabbed?

ATTY. VELASCO:

Who was the victim of that stabbing?

A:         My father.

Q:         Who stabbed him?

A:         Mr. Timoteo 'Tomy' Escarlos, the accused in this case,

your Honor.

Q:         Will you please focus your eyes within this Honorable

Court and tell us whether the person you said who stabbed
your father by the name of Timoteo Escarlos is in the premises
of this Honorable Court?

A:         Yes, sir.

Q:         Will you please stand up and point to him?

A:         The first one, your Honor (Witness is pointing unto a

person seated on the bench inside the courtroom, who, when
his name was asked, he answered Timoteo Escarlos).

Q:         How long have you been acquainted with the accused

Timoteo Escarlos?
A:         About ten years, your Honor.

Q:         He is also from Domampot?

A:         Yes, your Honor.

Q:         Considering that it is already about 9:20-9:30 o'clock in

the evening when this stabbing incident took place, how can
you be sure that it was Timoteo Escarlos who stabbed your
father?

A:         There was x x x light, your Honor.

Q:         What kind of light are you trying to say?

A:         50–100 watts bulb.

x x x           x x x           x x x

ATTY. VELASCO:

Did you see the spot where your father was actually
stabbed?

A:         Yes, sir.

Q:         How far is this place where your father was stabbed in

relation to the entrance of the dance arena.

A:         About 5 to 6 meters at my back, your Honor.

Q:         And at that distance, what happened next while you

were watching?

A:         I heard shouting.

Q:         These shouting that you heard, where did they come

from?

A:         From my back.

x x x           x x x           x x x
 COURT:

What is that shouting about?

ATTY. VELASCO:

You heard shoutin[g], according to you, what did you

hear, if you know?

A:         About the incident.

COURT:

Tell [us] exactly what you heard[.]

A:         I heard shouting, 'Ay!'

Q:         How many people shouted, 'Ay'?

A:         Many, your Honor, because that was a benefit dance.

ATTY. VELASCO:

When you heard shoutin[g], what did you do, if any?

A:         I turned my head to my back.

Q:         When you focused your attention and sight at your

back, what happened next?

A:         I saw stabbing. I saw my father stabbed by Timoteo

Escarlos, your Honor."13 (Italics supplied)

Undoubtedly, the factual premises with regard to the killing and its
commission by appellant are clear and undisputed. He did not at all deny
the allegations against him and openly admitted that he had killed the
victim. However, he interposes self-defense to seek his exoneration from
criminal liability.

Second Issue:

Plea of Self-Defense
In pleading self-defense, appellant asserts that it was the victim who initially
approached and assaulted him. Allegedly, the former had no choice but to
defend himself under the circumstances. In his testimony before the trial
court, he described the confrontation that had led to the fatal killing as
follows:

"Q:         And while you were there at the yard of Jaime Ulep on
that night of July 1, 2000 do you remember having seen the
person of one Kgd. Antonio Balisacan?

A:         Yes, sir.

Q:         And did he see you also?

A:         Yes, sir.

Q:         And did you happen to see him?

A:         When he passed in front of me he uttered in a loud

voice – 'you are here again to create trouble' (ADDA KA
MANEN DITOY NGA AGARAMID TI NILILOKO).

Q:         To whom did Antonio Balisacan utter these words?

A:         I, sir.

Q:         And you said it was uttered in a loud manner, how far

were you when he uttered these words?

A:         More or less 3 to 4 meters, sir.

Q:         What did you say?

A:         I was offended, sir.

Q:         And do you know the physical appearance of Antonio

Balisacan when he mentioned those words to you?

A:         As if he was drunk, sir.

Q:         What made you say that as if he was drunk?

A:         I smell his breath, sir.

Q:         How did you react later when Antonio Balisacan uttered

those words to you?

A:         I said: 'Why do you say that to me when I am not doing

any trouble here.'

Q:         By the way, when Antonio Balisacan said those words

to you, were you doing anything that time?

A:         None, sir.

Q:         What happened later on when you answered Brgy.

Kgd. Antonio Balisacan?

A:         He said: 'OKINNAM KETDI' (vulva of your mother) and

then he boxed me, sir.

Q:         Were you hit?

A:         Yes, sir.

Q:         What part of your body was hit?

A:         This one on my forehead, sir. (Witness is pointing on

his forehead).

Q:         Were you injured?

A:         Yes, sir.

Q:         What injury did you suffer?

A:         My forehead was injured (Witness is pointing a [to] a

scar on his forehead about an inch at the right above the right
eyecrow).

Q:         And what did you do after you were boxed by Antonio

Balisacan?
A:         When I intend to box him I noticed that he withdrew a
balisong and I tried to grab and used the balisong in stabbing,
sir.

x x x           x x x           x x x

COURT:

How many times did you stab him?

A:         Two times but when he was about to fall down I was

able to hit him once for the third time, sir.

Q:         You said that he drew a knife, where did he draw the

knife?

A:         At his left side, sir.

Q:         What kind of weapon did he draw?

A:         I sized it to be a kitchen knife, sir.

Q:         Could you tell the Honorable Court the length of that

knife to include the handle?

A:         10 to 12 inches, sir.

Q:         And how did you grapple for the possession of that

knife?

A:         I was able to hold the handle of the kitchen knife, sir.

x x x           x x x           x x x

Q:         What prompted you to stab him considering that you

already got hold [of] the knife from him?

A:         Yes, sir, because he intend[ed] to stab me, so, when I

had possession of the knife I stabbed him, sir." 14 (Italics
supplied)
We stress that when the accused invokes self-defense, the burden of proof
is shifted from the prosecution to the defense. Thus, the latter assumes the
responsibility of establishing this plea by clear and convincing
evidence.15Upon its shoulders rests the duty of proving, to the satisfaction
of the trial court, the justifying circumstance of self-defense. 16

The implications of pleading self-defense insofar as the burden of proof is

concerned was explained by the Court in Macalino v. People, 17 from which
we quote:

"In pleading self-defense, petitioner in effect admitted that he

stabbed the victim. It was then incumbent upon him to prove
that justifying circumstance to the satisfaction of the court,
relying on the strength of his evidence and not on the weakness
of the prosecution. The reason is that even if the prosecution
evidence were weak, such could not be disbelieved after
petitioner admitted the fact of stabbing the victim." 18

The accused who avers that the killing arose from an impulse of self-
defense has the onus probandi of proving the elements thereof. 19 The
essential requisites of self-defense are the following: (1) unlawful
aggression on the part of the victim; (2) reasonable necessity of the means
employed to prevent or repel such aggression; and (3) lack of sufficient
provocation on the part of the person resorting to self-defense. 20 Verily, to
invoke self-defense successfully, there must have been an unlawful and
unprovoked attack that endangered the life of the accused, who was then
forced to inflict severe wounds upon the assailant by employing reasonable
means to resist the attack.21

Unlawful Aggression on the Part of the Victim

In the present case, appellant claims that there was unlawful aggression on
the part of the victim when the latter unceremoniously boxed him on the
forehead in the heat of their argument. Appellant adds that he had initially
thought of hitting back when he noticed that the victim was pulling out a
kitchen knife. Hence, to save his life, the former grabbed the weapon and
used it to stab the latter. Appellant insists that under the circumstances, he
was legally justified in using the knife to ward off the unlawful aggression.
For him to wait for the knife to be raised and to fall on him before acting to
defend himself would be asking too much, he argues.
The contentions of appellant are untenable. While the victim may be said to
have initiated the confrontation, we do not subscribe to the view that the
former was subjected to an unlawful aggression within the legal meaning of
the phrase.

The alleged assault did not come as a surprise, as it was preceded by a

heated exchange of words between the two parties who had a history of
animosity. Moreover, the alleged drawing of a knife by the victim could not
have placed the life of appellant in imminent danger. The former might
have done it only to threaten or intimidate the latter.

Unlawful aggression presupposes actual, sudden, unexpected or imminent

danger -- not merely threatening and intimidating action. 22 Uncertain,
premature and speculative was the assertion of appellant that the victim
was about to stab him, when the latter had merely drawn out his knife.
There is aggression, only when the one attacked faces real and immediate
threat to one's life. The peril sought to be avoided must be imminent and
actual, not just speculative.23

Even assuming arguendo that there was an altercation before the stabbing
incident and that some danger did in fact exist, the imminence of that
danger had already ceased the moment appellant disarmed the victim by
wresting the knife from the latter. After the former had successfully seized
it, there was no longer any unlawful aggression to speak of that would have
necessitated the need to kill the latter. Hence, appellant became the
unlawful aggressor when he stabbed the victim. 24

When an unlawful aggression that has begun no longer exists, the one who
resorts to self-defense has no right to kill or even to wound the former
aggressor.25 To be sure, when the present victim no longer persisted in his
purpose or action to the extent that the object of his attack was no longer in
peril, there was no more unlawful aggression that would warrant legal self-
defense on the part of appellant.26 Undoubtedly, the latter went beyond the
call of self-preservation when he proceeded to inflict excessive, atrocious
and fatal injuries on the latter, even when the allegedly unlawful aggression
had already ceased.

Reasonable Necessity of the Means Employed to Prevent or Repel the

Attack
Appellant argues that in the heat of the encounter, he was not in a position
to calculate or determine the effects of his blows, and that it was
nevertheless necessary for him to inflict them in order to save his own life.

As correctly held by the trial court, the nature, the number and the location
of the wounds inflicted upon the victim were important indicia disproving
self-defense.27 The claim of appellant that only two of the four stab wounds
were fatal is of no moment, inasmuch as the means he employed was
glaringly disproportionate to the perceived unlawful aggression. He
admitted in his testimony that he had stabbed the victim for the third time,
even when the latter was about to fall.

The means employed by a person invoking self-defense must be

reasonably commensurate to the nature and the extent of the attack sought
to be averted, as held by the Court in People v. Obordo: 28

"Even assuming arguendo that there was unlawful aggression

on the part of the victim, accused-appellant likewise failed to
prove that the means he employed to repel Homer's punch was
reasonable. The means employed by the person invoking self-
defense contemplates a rational equivalence between the
means of attack and the defense. Accused-appellant claimed
that the victim punched him and was trying to get something
from his waist, so he (accused-appellant) stabbed the victim
with his hunting knife. His act of immediately stabbing Homer
and inflicting a wound on a vital part of the victim's body was
unreasonable and unnecessary considering that, as alleged by
accused-appellant himself, the victim used his bare fist in
throwing a punch at him."29

Indeed, the means employed by a person resorting to self-defense must be

rationally necessary to prevent or repel an unlawful aggression. 30

Unlawful aggression is a conditio sine qua non for upholding the justifying
circumstance of self-defense.31 Unless the victim has committed unlawful
aggression against the other, there can be no self-defense, complete or
incomplete, on the part of the latter. If there is nothing to prevent or repel,
the other two requisites of self-defense will have no basis. 32

Third Issue:
 Appreciation of Qualifying Circumstances

The essence of treachery is the sudden and unexpected attack by an

aggressor without the slightest provocation on the part of the victim, thus
depriving the latter of any real chance to put up a defense, and thereby
ensuring the commission of the attack without risk to the
aggressor.33 Treachery requires the concurrence of two conditions: (1) the
employment of a means of execution that gives the person attacked no
opportunity for self-defense or retaliation; and (2) the deliberate and
conscious adoption of the means of execution.34

There 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. 35

In the instant case, the verbal and physical squabble prior to the attack
proves that there was no treachery, and that the victim was aware of the
imminent danger to his life.36 Moreover, the prosecution failed to establish
that appellant had deliberately adopted a treacherous mode of attack for
the purpose of depriving the victim of a chance to fight or retreat. 37

Certainly, the victim knew that his scuffle with appellant could eventually
turn into a violent physical clash. The existence of a struggle before the
fatal blows were inflicted on the victim clearly shows that he was
forewarned of the impending attack, and that he was afforded the
opportunity to put up a defense.38 Indeed, a killing done at the spur of the
moment is not treacherous. Moreover, any doubt as to the existence of
treachery must be resolved in favor of the accused. 39

In People v. Cariño,40 we modified the trial court's decision and ruled that
the crime committed was only homicide, because the qualifying
circumstance of treachery had not been clearly established. Thus, the
Court declared:

"However, we agree with the OSG's recommendation that

appellant be held liable only for homicide, not murder. In this
case, the qualifying circumstance of treachery was not
conclusively established. For treachery to exist, the following
requisites must be met: (1) that at the time of the attack, the
victim was not in a position to defend himself; and (2) that the
offender consciously adopted the particular means, method or
 form of attack employed by him. The facts show that Edmundo
was placed on guard concerning a possible assault by Pedro.
First, there was a heated argument between them at the place
of the wake. Second, Edmundo was not unaware that he and
Rolando were followed outside by appellant, who did not adopt
any means to conceal himself or hide his intention of
confronting Edmundo. Third, the abrasions and contusions on
Edmundo's face show that Edmundo was able to put up a fight
before he was fatally stabbed. These circumstances negate the
existence of treachery in the commission of the offense." 41

As in People v. Cariño, the Office of the Solicitor General recommended in

this case that appellant be convicted of homicide only, inasmuch as the
qualifying circumstance of treachery had not been sufficiently established. 42

The trial court correctly ruled that the qualifying circumstance of evident
premeditation was not present in the killing. Essentially, there is evident
premeditation when the execution of a criminal act is preceded by cool
thought and reflection upon the resolution to carry out a criminal intent
within a space of time sufficient to arrive at a calm judgment. 43 Obviously,
the acts of appellant in the present case can hardly be described as a
product of reflective thought or deliberate planning towards a decisive
resolve to kill the victim. On the contrary, the confrontation that escalated to
a violent brawl was quite spontaneous, casual and incidental. Verily, the
brutal killing was not the result of a previous plot or sinister design to end
the life of the victim.

The elements of evident premeditation are as follows: (a) the time when the
accused decided to commit the crime; (b) an overt act manifestly indicating
that the accused clung to the determination to commit the crime; and (c)
the lapse of a period of time, between the determination and the
subsequent execution of the crime, sufficient to allow the accused an
opportunity to reflect upon the consequences of the act. 44 As found by the
trial court, the prosecution failed to present sufficient evidence to establish
any of the foregoing requisites. To be sure, when there is no showing how
and when the plan to kill was decided or how much time had elapsed
before the crime was carried out, there is no evident premeditation. 45

In a criminal prosecution -- especially in cases involving the extreme

penalty of death -- nothing but proof beyond reasonable doubt of every fact
necessary to constitute the crime with which the accused is charged must
be established.46

Fourth Issue:

Proper Penalty and Award of Damages

Under Article 249 of the Revised Penal Code, the penalty for homicide is
reclusion temporal. There being neither mitigating nor aggravating
circumstance, the appropriate penalty should be reclusion temporal in its
medium period. Appellant is likewise entitled to the benefits of the
Indeterminate Sentence Law.

The trial court awarded moral damages in the amount of P50,000, but
failed to award P50,000 as civil indemnity for the death of the victim. Moral
damages cannot be granted in the absence of proof therefor. 47 Unlike in
rape cases, this type of award is not automatically given in murder or
homicide. The prosecution was, however, able to prove actual damages in
the sum of P28,650. The award of exemplary damages should be omitted
considering that no aggravating circumstance was duly proven. 48

WHEREFORE, the assailed Decision is MODIFIED. Appellant is held guilty

of homicide and sentenced to eight (8) years and one (1) day of prison
mayor medium, as minimum; to fourteen (14) years, eight (8) months and
(1) day of reclusion temporal medium, as maximum. He shall also pay the
heirs of the victim the amounts of P50,000 as civil indemnity and P28,650
as actual damages, consistent with prevailing jurisprudence.[49] The grant
of moral and exemplary damages is DELETED. No costs.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Vitug, Quisumbing, Ynares-Santiago, Sandoval-

Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, and Callejo,
Sr., JJ., concur.
Puno, and Azcuna, JJ., on official business.

Footnotes
1
 Rollo, pp.18-30. Penned by Judge Alicia B. Gonzalez-Decano.
2
 Assailed Decision, pp. 12-13; rollo, pp. 29-30.

Rollo, pp. 6-7; signed by 2nd Assistant Provincial Prosecutor

3 

Restituto A. Dumlao Jr.

4
 Ibid.
5
 Atty. Joselino Viray.
6
 Records, Vol. I, p. 51.

 Appellee's Brief, pp. 5-8; rollo, pp. 133-136. Signed by acting

7

Solicitor General Carlos N. Ortega and Associate Solicitor Ma.

Almira M. Tomampos.
8
 Appellant's Brief, pp. 9-11; rollo, pp. 50-52. Signed by Atty.
Joselino A. Viray.
9
 Assailed Decision, pp. 10-11; rollo, pp. 27-28.

 This case was deemed submitted for decision on September

10

13, 2002, upon receipt by this Court of the Manifestation of

appellant that he was no longer filing a Reply Brief. His Brief
was filed earlier on February 20, 2002, while appellee's Brief
was filed on June 11, 2002.
11
 Appellant's Brief, p. 2; rollo, p. 43. Original in upper case.
12
 People v. De la Cruz, GR No. 137405, September 27, 2002.
13
 TSN, January 24, 2001, pp. 8-11.
14
 TSN, March 27, 2001, pp. 4-7.
15
 People v. Peralta, 350 SCRA 198, January 24, 2001.
16
 People v. Rabanal, 349 SCRA 655, January 19, 2001.
17
 340 SCRA 11, September 7, 2000.
18
 Id., pp. 22-23, per De Leon Jr., J.
19
 People v. Almazan, 417 Phil. 697, September 17, 2001.

 People v. Silvano, 350 SCRA650, January 31, 2001; People

20

v. Plazo, 350 SCRA 433, January 29, 2001;Roca v. Court of

Appeals, 350 SCRA 414, January 29, 2001.
21
 People v. Sarmiento, 357 SCRA 447, April 30, 2001.
22
 People v. Rabanal, supra.
23
 People v. Damitan, 371 SCRA 629, December 7, 2001.

 People v. Calabroso, 340 SCRA 332, September 14,

24

2000; People v. Maalat, 314 Phil. 200, July 8, 1997.

25
 People v. Rabanal, supra.
26
 People v. Geneblazo, 361, 414 Phil. 103, July 20, 2001.

 People v. Ubaldo, 367 SCRA 432, October 17, 2001; People

27

v. Basadre, 352 SCRA 573, February 22, 2001; People v.

Silvano, supra.
28
 GR No. 139528, May 9, 2002.
29
 Id., p. 20, per Kapunan, J.
30
 People v. Saul, 372 SCRA 636, December 19, 2001.
31
 People v. Camacho, 411 Phil. 715, June 20, 2001.

 People v. Flores, 356 SCRA 332, April 4, 2001; People v.

32

Court of Appeals, 352 SCRA 599, February 23, 2001; Calim v.

Court of Appeals, 351 SCRA 559, February 13, 2001.
33
 People v. Medios, 371 SCRA 120, November 29, 2001.

 People v. Figuracion, 415 Phil. 12, August 10, 2001; People

34

v. Enriquez, 357 SCRA 269, April 20, 2001;People v. Galvez,

355 SCRA 246, March 26, 2001.
35
 People v. Reyes, 368 SCRA 287, October 25, 2001.
 36
 People v. Mantes, 368 SCRA 661, November 14, 2001.
37
 People v. Amba, 365 SCRA 518, September 20, 2001.
38
 People v. Pajotal, 368 SCA 674, November 14, 2001.
39
 People v. Doctolero Sr., 415 Phil. 632, August 20, 2001.
40
 416 Phil. 276, August 28, 2001.
41
 Id., p. 287, per Quisumbing, J.
42
 Appellee's Brief, p. 32; rollo, p. 160.
43
 People v. Uganap, 358 SCRA 674, June 19, 2001.
44
 People v. Acojedo, 369 SCRA 376, November 19, 2001.
45
 People v. Feliciano, 365 SCRA 613, September 24, 2001.
46
 People v. Francisco, 350 SCRA 55, January 22, 2001.

 People v. Villanueva, GR No. 139177, August 11,

47

2003; People v. Ibañez, GR Nos. 133923-24, July 30, 2003.

 People v. Panabang, GR Nos. 137514-15, January 16,

48

2002; People v. Catubig, 416 Phil. 102, August 23, 2001.

 People v. Panabang, supra; People v. Costales, GR Nos.

49

141154-56, January 15, 2002.

The Lawphil Project - Arellano Law Foundation

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 158057             September 24, 2004

NOE TOLEDO y TAMBOONG, petitioner, 

vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

CALLEJO, SR., J.:

This is a petition for review of the Decision1 of the Court of Appeals (CA) in
CA-G.R. CR No. 23742 affirming on appeal, the Decision 2 of the Regional
Trial Court (RTC) of Odiongan, Romblon, Branch 82, in Criminal Case No.
OD-861, convicting the petitioner of homicide.

In an Information filed in the RTC of Romblon, the petitioner was charged

with homicide allegedly committed as follows:

That on or about the 16th day of September 1995, at around

9:30 o’clock in the evening, in Barangay Libertad, municipality
of Odiongan, province of Romblon, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, with
intent to kill, did then and there, willfully, unlawfully and
 feloniously attack, assault and stab with a bolo, one RICKY F.
GUARTE, which causes (sic) his untimely death.

Contrary to law.3

In due course, the prosecution adduced evidence against the petitioner

which was synthesized by the appellate court as follows:

On September 16, 1995, appellant went to a black-smith who

made the design of his bolo. When he went home to Tuburan,
Odiongan, Romblon late in the afternoon (TSN, September 4,
1998, p. 2), appellant saw the group of Lani Famero, Michael
Fosana, Rex Cortez and Ricky Guarte drinking gin at the house
of the Spouses Manuel and Eliza Guarte, Ricky’s parents.
Appellant’s house is about five (5) meters away from the house
of Spouses Guarte. Appellant requested the group of Ricky to
refrain from making any noise. Thereupon, appellant proceeded
inside his house and went to sleep (ibid., p. 3). Around 9:00
p.m., Gerardo Faminia, Eliza Guarte’s brother arrived at the
Guarte house and asked for any left-over food (TSN, August 5,
1998, p. 3). Eliza prepared dinner for him and after Gerardo
finished eating, he went home accompanied by Ricky (TSN,
April 26, 1996, p. 5). Gerardo’s home is about twelve (12)
meters away from the Guarte home (TSN, February 17, 1997,
p. 11). Minutes later, Ricky came back and together with Lani,
Rex and Michael, went to sleep at the Guarte house. They had
not laid down for long when they heard stones being hurled at
the roof of the house. The stoning was made three (3) times
(TSN, August 5, 1998, pp. 2-3). Ricky rose from bed and
peeped through a window. He saw appellant stoning their
house. Ricky went out of the house and proceeded to
appellant’s house. Ricky asked appellant, his uncle, why he
was stoning their house. Appellant did not answer but met
Ricky at the doorstep of his (appellant’s) house (TSN, April 26,
1996, p. 6; August 5, 1998, pp. 4-5) and, without any warning,
stabbed Ricky on the abdomen with a bolo (TSN, August 5,
1998, p. 8). Eliza had followed his son Ricky and upon seeing
that Ricky was stabbed, shouted for help (TSN, February 17,
1997, p. 13). Lani heard Eliza’s cry for help and immediately
rushed outside the house. Lani saw Ricky leaning on the
 ground and supporting his body with his hands. Lani helped
Ricky stand up and brought him to the main road. Lani asked
Ricky who stabbed him and Ricky replied that it was appellant
who stabbed him. Then Docloy Cortez arrived at the scene on
board his tricycle. Accordingly, Ricky was put on the tricycle
and taken to the Romblon Provincial Hospital (TSN, January
19, 1998, pp. 4-6).

At the Romblon Provincial Hospital, Dr. Noralie Fetalvero operated on

Ricky that very night. Ricky had sustained one (1) stab wound but due to
massive blood loss, he died while being operated on (TSN, November 24,
1997, pp. 2, 6-7). Dr. Fetalvero issued a Medico-Legal Certificate showing
the injuries sustained by Ricky, thus:

Stab wound, left chest with gastric & transverse colon

evisceration measuring 6 cms. long, irregular-edged at 8th ICS,
left penetrating (operative findings):

(1) abdominal cavity perforating the stomach (thru & thru)

and the left lobe of the liver

(2) thoracic cavity thru the left dome of the diaphragm

perforating the lower lobe of the left lung.

(Exhibit C)

The Certificate of Death issued by Dr. Fetalvero stated the

cause of Ricky’s death as:

CAUSES OF DEATH:

Immediate cause : a. Cardiorespiratory Arrest

Antecedent cause : b. Hypovolemic shock
Underlying cause : c. Multiple thoraco-abdominal

injury 2º to stab wound

(Exhibit B)4
 The Evidence of the Petitioner

The petitioner adduced evidence that at around 5:00 p.m. on September

16, 1995, he was on his way home at Tuburan, Odiongan, Romblon. He
saw his nephew, Ricky Guarte, and the latter’s friends, Michael Fosana,
Rex Cortez, and Lani Famero, about five meters away from his house,
having a drinking spree. He ordered them not to make loud noises, and
they obliged. He then went to his house, locked the door with a nail, and
went to sleep. However, he was awakened at around 9:30 p.m. by loud
noises coming from Ricky and his three companions. He peeped through
the window grills of his house and admonished them not to make any loud
noises. Ricky, who was then already inebriated, was incensed; he pulled
out a balisong, pushed the door, and threatened to stab the petitioner. The
petitioner pushed their sala set against the door to block the entry of Ricky,
but the latter continued to push the door open with his hands and body.
The petitioner ran to the upper portion of their house and got his bolo. 5He
returned to the door and pushed it with all his might using his left hand. He
then pointed his bolo, which was in his right hand, towards Ricky. The bolo
accidentally hit Ricky on the stomach, and the latter lost his balance and
fell to the floor. The petitioner, thereafter, surrendered to the barangay
captain at 11:00 a.m. on September 17, 1995.

After trial, the court rendered judgment finding the petitioner guilty as
charged. The fallo of the decision reads:

WHEREFORE, premises considered, NOE TOLEDO is hereby

found GUILTY beyond reasonable doubt of homicide with the
mitigating circumstance of voluntary surrender and is meted the
indeterminate penalty of from six (6) years and one (1) day of
prision mayor minimum, as minimum, to twelve (12) years and
one (1) day of reclusion temporal minimum, as maximum.

Accused is condemned to pay the amount of P50,000.00 as

civil liability to the heirs of the victim.6

The trial court did not give credence and probative weight to the testimony
of the petitioner that his bolo accidentally hit the victim on the stomach.

On appeal in the CA, the petitioner raised the following issue in his brief as
appellant:
 WHETHER OR NOT ACCUSED-APPELLANT CAN BE
CRIMINALLY HELD LIABLE FOR THE ACCIDENTAL DEATH
OF RICKY GUARTE7

Invoking Article 12, paragraph 4 of the Revised Penal Code, the petitioner
claimed that he stabbed the victim by accident; hence, he is exempt from
criminal liability for the death of the victim.

The CA rendered judgment affirming the assailed decision with

modifications. The CA also denied the petitioner’s motion for
reconsideration thereof. The appellate court ruled that the petitioner failed
to prove that he acted in self-defense.

Aggrieved, the petitioner filed the instant petition for review, contending that
the CA erred in not finding that he acted in self-defense when he stabbed
the victim by accident and prays that he be acquitted of the crime charged.

The sole issue in this case is whether or not the petitioner is guilty beyond
reasonable doubt of homicide based on the evidence on record.

The petitioner contends that the CA committed a reversible error when it

affirmed the decision of the RTC convicting him of homicide, on its finding
that he failed to prove that he acted in complete self-defense when the
victim was hit by his bolo. The petitioner insists that he acted in complete
self-defense when his bolo accidentally hit the victim on the stomach.

For its part, the Office of the Solicitor General asserts that the petitioner
failed to prove self-defense with clear and convincing evidence. Hence, the
decision of the CA affirming, on appeal, the decision of the RTC is correct.

The contention of the petitioner has no merit.

The petitioner testified that his bolo hit the victim accidentally. He asserted
in the RTC and in the CA that he is exempt from criminal liability for the
death of the victim under Article 12, paragraph 4 of the Revised Penal
Code which reads:

4. Any person who, while performing a lawful act with due care,
causes an injury by mere accident without fault or intention of
causing it.
 In his brief in the CA, the petitioner argued that:

In the case at bar, with all due respect, contrary to the

findings of the lower court, it is our humble submission
that the death of Ricky Guarte was merely a sad and
unwanted result of an accident without fault or intention of
causing it on the part of accused-appellant. We submit,
there were clear and indubitable factual indicators
overlooked by the lower court, bolstering the theory of the
defense on accidental death.8

However, the petitioner changed gear, so to speak, and now alleges that
he acted in self-defense when he stabbed the victim. As such, he contends,
he is not criminally liable under Article 11, paragraph 1 of the Revised
Penal Code which reads:

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.

The petitioner avers that he was able to prove the essential

elements of complete self-defense, thus:

A close scrutiny of the records of the case would show

that the petitioner acted in self-defense.

The essential requisites of self-defense are: (1) unlawful

aggression on the part of the victim; (2) reasonable scrutiny of
the means employed to prevent or repel it; and (3) lack of
sufficient provocation on the part of the person defending
himself (People vs. Silvano, 350 SCRA 650)9
However, the petitioner also claims that his bolo accidentally hit the
stomach of the victim.

It is a matter of law that when a party adopts a particular theory and the
case is tried and decided upon that theory in the court below, he will not be
permitted to change his theory on appeal. The case will be reviewed and
decided on that theory and not approached and resolved from a different
point of view. To permit a party to change his theory on appeal will be
unfair to the adverse party.10

The petitioner is proscribed from changing in this Court, his theory of

defense which he adopted in the trial court and foisted in the CA – by
claiming that he stabbed and killed the victim in complete self-defense. The
petitioner relied on Article 12, paragraph 4 of the Revised Penal Code in
the trial and appellate courts, but adopted in this Court two divergent
theories – (1) that he killed the victim to defend himself against his unlawful
aggression; hence, is justified under Article 11, paragraph 1 of the Revised
Penal Code; (2) that his bolo accidentally hit the victim and is, thus, exempt
from criminal liability under Article 12, paragraph 4 of the Revised Penal
Code.

It is an aberration for the petitioner to invoke the two defenses at the same
time because the said defenses are intrinsically antithetical. 11 There is no
such defense as accidental self-defense in the realm of criminal law.

Self-defense under Article 11, paragraph 1 of the Revised Penal Code

necessarily implies a deliberate and positive overt act of the accused to
prevent or repel an unlawful aggression of another with the use of
reasonable means. The accused has freedom of action. He is aware of the
consequences of his deliberate acts. The defense is based on necessity
which is the supreme and irresistible master of men of all human affairs,
and of the law. From necessity, and limited by it, proceeds the right of self-
defense. The right begins when necessity does, and ends where it
ends.12 Although the accused, in fact, injures or kills the victim, however, his
act is in accordance with law so much so that the accused is deemed not to
have transgressed the law and is free from both criminal and civil
liabilities.13 On the other hand, the basis of exempting circumstances under
Article 12 of the Revised Penal Code is the complete absence of
intelligence, freedom of action, or intent, or the absence of negligence on
the part of the accused.14 The basis of the exemption in Article 12,
paragraph 4 of the Revised Penal Code is lack of negligence and intent.
The accused does not commit either an intentional or culpable felony. The
accused commits a crime but there is no criminal liability because of the
complete absence of any of the conditions which constitute free will or
voluntariness of the act.15 An accident is a fortuitous circumstance, event or
happening; an event happening wholly or partly through human agency, an
event which under the circumstances is unusual or unexpected by the
person to whom it happens.16

Self-defense, under Article 11, paragraph 1, and accident, under Article 12,
paragraph 4 of the Revised Penal Code, are affirmative defenses which the
accused is burdened to prove, with clear and convincing evidence. Such
affirmative defenses involve questions of facts adduced to the trial and
appellate courts for resolution. By admitting killing the victim in self-defense
or by accident without fault or without intention of causing it, the burden is
shifted to the accused to prove such affirmative defenses. He should rely
on the strength of his own evidence and not on the weakness of that of the
prosecution. If the accused fails to prove his affirmative defense, he can no
longer be acquitted.

The petitioner failed to prove that the victim was killed by accident, without
fault or intention on his part to cause it. The petitioner was burdened to
prove with clear and convincing evidence, the essential requisites for the
exempting circumstance under Article 12, paragraph 4, viz:

1. A person is performing a lawful act;

2. With due care;

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

4. Without fault or intention of causing it.

To prove his affirmative defense, the petitioner relied solely on his

testimony, thus:

Q What happened next when Ricky Guarte was able to push

through the door and you ran away?

A When Ricky Guarte was able to push the door, that is the
time I go (sic) downstairs and got my bolo and at that time the
body of Ricky Guarte was at the entrance of the door and
accidentally the bolo reached him.

Q Where did you get the bolo?

A I got the bolo in the post or wall of our house.

Q Was Ricky Guarte hit the first time you boloed him?

A Not hacking but accidentally.

Q What do you mean by accidentally?

A Because when Ricky Guarte pushed the door and unbalance

himself (sic) the bolo which I was carrying hit him accidentally.

Q Where was he hit by the bolo you were carrying?

A In the stomach.17

Q And since you were at the left side of the door, your right
hand was at the center part of the door, correct?

A No, Sir.

Q Where was your right hand?

A Holding a bolo.

Q Where, in what part of the door?

A Right side.

Q When Ricky Guarte was pushing the door, the door was not
opened?

A It was opened.

Q It was opened because you opened the door, correct?

A No, Sir.

Q Now, why was it opened?

A Because he was pushing it.

Q With his left hand?

A With his both hands and body.

Q Now, when he fell down because, according to you, he

losses (sic) his balance, the left side of the body was the first to
fell (sic) down, correct?

A Yes, Sir.

Q You are sure of your answer now Mr. Toledo?

A Yes, Sir.

Q Now, and while holding that bolo, you are doing that in [an]
upward position, correct?

A No, Sir, pointing the door.

Q Yes, you are pointing the tip of your bolo to the door upward,
correct?

A No, Sir, steady pointing to the door.

Q Now, when the door was opened, your bolo did not hit any
part of that door, correct?

A "Ginaiwas ko ang sunrang," meaning I was able to get away

from hitting any part of the door.

Q The question Mr. Toledo is simple, while the door was

opened and while you were pointing directly your bolo at the
door, not any part of the door hit the bolo (sic), correct?

ATTY. FORMILLEZA:
 It was a valid answer, it did not hit any part of the door.

COURT:

Answer.

A No, Sir.

PROS. FRADEJAS continuing:

Q You were only about five inches away from your door while
pushing it, correct?

A Yes, Sir.

Q Now, when the door was pushed already by Ricky Guarte,

not any part of your body hit the door, correct?

A No, Sir.18

The petitioner also testified that the victim was armed with a balisong and
threatened to kill him as the said victim pushed, with his body and hands,
the fragile door of his house:

Q Where were you when you saw Ricky went out?

A I was at the door.

Q Did Ricky proceed to the door where you were?

A Yes, Sir.

Q What did he do, if any?

A He drew his fan knife or balisong and asked me what do you

like, I will stab you?

Q What did you do?

A I told him I have not done you anything wrong, I am only

scolding you or telling you not to make noise.
 Q What, if any, did Ricky Guarte do to you?

A He pushed the door.

Q Whose door did he push?

A My own door.

Q Where were you when he pushed the door?

A Inside our house.19

We find the testimony of the petitioner incredible and barren of probative

weight.

First. If the testimony of the petitioner is to be believed, the force of the

struggle between him and the victim would have caused the door to fall on
the petitioner. However, the petitioner failed to adduce real evidence that
the door of his house was destroyed and that he sustained any physical
injuries,20 considering that he was only five inches away from the door.

Second. If the door fell to the sala of the house of the petitioner, the victim
must have fallen on top of the door. It is incredible that the bolo of the
petitioner could have hit the stomach of the victim. The claim of the
petitioner that he managed to step aside and avoid being crushed by the
door belies his claim that the bolo accidentally hit the victim on the
stomach.

Third. When he surrendered to the barangay captain and to the policemen,

he failed to relate to them that his bolo accidentally hit the stomach of the
victim:

Q Now, that very night when you said Ricky Guarte was
accidentally hit by your bolo, you did not surrender to the police,
correct?

A I surrendered to the barangay captain at one o’clock in

Panique, in the afternoon.

Q Now, you only surrendered to the police when a certain

person advised you to surrender, correct?
 A On my own volition, I surrendered to the barangay captain.

Q You did not narrate the incident to the barangay captain

whom you have surrendered, correct?

A No, Sir.

Q When you were brought to the municipal jail, you did not also
narrate to the police what happened, correct?

A No, Sir.

Q You just remained silent thinking of an excuse that happened

that evening of September 16, 1995, correct?

A No, Sir.21

Fourth. There is no evidence that the petitioner surrendered either the bolo
that accidentally hit the victim or the balisong held by the deceased to the
barangay captain or the police authorities. Such failure of the petitioner
negates his claim that his bolo accidentally hit the stomach of the victim
and that he acted in self-defense.22

Fifth. To prove self-defense, the petitioner was burdened to prove the

essential elements thereof, namely: (1) unlawful aggression on the part of
the victim; (2) lack of sufficient provocation on the part of the petitioner; (3)
employment by him of reasonable means to prevent or repel the
aggression. Unlawful aggression is a condition sine qua non for the
justifying circumstances of self-defense, whether complete or
incomplete.23 Unlawful aggression presupposes an actual, sudden, and
unexpected attack, or imminent danger thereof, and not merely a
threatening or intimidating attitude.24 We agree with the ruling of the CA that
the petitioner failed to prove self-defense, whether complete or incomplete:

The evidence on record revealed that there is no unlawful

aggression on the part of Ricky. While it was established that
Ricky was stabbed at the doorstep of appellant’s house which
would give a semblance of verity to appellant’s version of the
incident, such view, however, is belied by the fact that Ricky
arrived at appellant’s house unarmed and had only one
purpose in mind, that is, to ask appellant why he threw stones
 at his (Ricky’s) house. With no weapon to attack appellant, or
defend himself, no sign of hostility may be deduced from
Ricky’s arrival at appellant’s doorstep. Ricky was not
threatening to attack nor in any manner did he manifest any
aggressive act that may have imperiled appellant’s well-being.
Ricky’s want of any weapon when he arrived at appellant’s
doorstep is supported by the fact that only one weapon was
presented in court, and that weapon was the bolo belonging to
appellant which he used in stabbing Ricky. Thus, appellant’s
version of the events does not support a finding of unlawful
aggression. In People vs. Pletado, the Supreme Court held:

"xxx (F) or aggression to be appreciated, there must be

an actual, sudden, [un]expected attack or imminent
danger thereof, and not merely a threatening or
intimidating attitude (People vs. Pasco, Jr., supra, People
vs. Rey, 172 SCRA 149 [1989]) and the accused must
present proof of positively strong act of real aggression
(Pacificar vs. Court of Appeals, 125 SCRA 716 [1983]).
Unlawful aggression must be such as to put in real peril
the life or personal safety of the person defending himself
or of a relative sought to be defended and not an
imagined threat."

Appellant was not justified in stabbing Ricky. There was no imminent threat
to appellant’s life necessitating his assault on Ricky. Unlawful aggression is
a condition sine qua non for the justifying circumstance of self-defense. For
unlawful aggression to be appreciated, there must be an actual, sudden,
unexpected attack or imminent danger thereof, not merely a threatening or
intimidating attitude. In the absence of such element, appellant’s claim of
self-defense must fail.

Further, appellant’s plea of self-defense is not corroborated by competent

evidence. The plea of self-defense cannot be justifiably entertained where it
is not only uncorroborated by any separate competent evidence but is in
itself extremely doubtful.25

Sixth. With the failure of the petitioner to prove self-defense, the

inescapable conclusion is that he is guilty of homicide as found by the trial
court and the CA. He cannot even invoke Article 12, paragraph 4 of the
Revised Penal Code.26

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The

assailed decision of the Court of Appeals isAFFIRMED. Costs against the
petitioner.

SO ORDERED.

Puno, Austria-Martinez, Tinga, and Chico-Nazario*, JJ., concur.

Footnotes

 On leave.
*

 Penned by Associate Justice Bernardo P. Abesamis (retired),

1

with Associate Justices Juan Q. Enriquez, Jr. and Edgardo F.

Sundiam, concurring.
2
 Penned by Judge Francisco F. Fanlo, Jr.
3
 CA Rollo, p. 39.
4
 Id. at 93-96.
5
 Exhibit "A."
6
 CA Rollo, p. 47.
7
 Id. at 31.
8
 Rollo, p. 39.
9
 Id. at 15.

 See Chua v. Court of Appeals, 401 SCRA 54 (2003); Roxas

10

v. Court of Appeals, 391 SCRA 351 (2002);Bacaling v. Muya,

380 SCRA 714 (2002).
11
 People v. Javier, 377 SCRA 300 (2002).
  Bishop, A Treatise on Criminal Law, Vol. 1, 9th ed., pp. 559-
12

560.
13
 Reyes, The Revised Penal Code, Vol. 1, 1970 ed., p. 149.
14
 Id. at 213.
15
 Id. at 214.

 Jarco Marketing Corporation v. Court of Appeals, 321 SCRA

16

375 (1999).
17
 TSN, 4 September 1998, p. 6.
18
 TSN, 21 October 1998, pp. 9-10.
19
 TSN, 4 September 1998, p. 5.
20
 TSN, 21 October 1998, p. 15.
21
 Id. at 13-14.
22
 People v. Camacho, 359 SCRA 200 (2001).
23
 Ibid.
24
 People v. Cario, 288 SCRA 404 (1998).
25
 Rollo, pp. 62-63.
26
 People v. Cario, supra.

The Lawphil Project - Arellano Law Foundation

 THIRD DIVISION
CELERINO SANCHEZ, G. R. No. 161007
Petitioner,
Present:
 
QUISUMBING, J.,
Chairperson,
- versus - CARPIO,
CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.
PEOPLE OF THE PHILIPPINES,
Respondent.
Promulgated:
December 6, 2006
 
x-------------------------------------------------------------------x
 
 
DECISION
 
TINGA, J.:
 
Celerino Sanchez (Sanchez) assails the Decision[1] of the Court of Appeals
dated May 7, 2003 which affirmed his conviction of the crime of Homicide but
modified the penalty imposed by the trial court, and its Resolution [2] dated October
21, 2003 which denied reconsideration for lack of merit.
 
The case stems from an Information[3] dated March 24, 1994, docketed as
Criminal Case No. 94-10-430, indicting Sanchez for the death of
Felix Jamero (Jamero). The Information reads:
 
That on September 4, 1993, at 7:00 oclock in the morning, more or less,
in Barangay San Jose, Municipality of Mahayag, Province of Zamboanga del Sur,
Republic of the Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, with intent to kill and armed with a long sharp bolo,
did then and there willfully, unlawfully and feloniously, assault[,] attack, hack
and stab one FELIX JAMERO, inflicting upon the victim multiple stab wounds in
the different parts of his body which cause his instant death.
 
CONTRARY TO LAW.[4]
 
 
Sanchez pleaded not guilty upon arraignment. Trial proceeded after which
the Regional Trial Court, Branch 23, Molave, Zamboanga del Sur rendered a
Decision,[5] the dispositive portion of which states:
 
WHEREFORE, on the basis of the evidences admitted at the trial, this
Court finds the accused guilty beyond reasonable doubt of the crime of homicide,
and hereby imposes the indeterminate penalty of eight years and one day
of prision mayor as minimum, to fifteen years, of reclusion temporal as
maximum, of imprisonment, and to pay the heirs of the deceased victim the sum
of P165,000.00, itemized as follows:
 
Moral damages --------------------------P 50,000.00
Exemplary damages -------------------- 50,000.00
Funeral Expenses ----------------------- 65,000.00
Total ------------------------------P165,000.00
 
SO ORDERED.[6]
 
 
 On appeal, Sanchez averred that the trial court erred in not ruling that he
acted in self-defense and in failing to appreciate the mitigating circumstances of
voluntary surrender and passion and obfuscation. Finding that unlawful aggression
as an element of self-defense was not present, the Court of Appeals affirmed
Sanchezs conviction. However, it decreased the penalty imposed in view of the
mitigating circumstance of voluntary surrender. The dispositive portion of the
Decision of the Court of Appeals provides:
 
WHEREFORE, in view of the foregoing, judgment is hereby rendered
partly granting the instant appeal. The decision of the trial court is MODIFIED in
so far as the penalty is concerned which should be 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. All other aspects of the decision are
AFFIRMED. No costs.
 
SO ORDERED.[7]
 
 
Sanchezs account of the facts shows that he and Jamero were tenants of
adjacent lots located in San Jose, Mahayag, Zamboanga del Sur.[8] At about 7:00
oclock in the morning of September 4, 1993, Sanchez saw Jamero destroying the
dike which served as the boundary between the two lots. Sanchez
confronted Jamero and told the latter that he was encroaching on his
land. Jamero struck him with a shovel. The shovel got stuck in the mud
so Jamero resorted to throwing mud at Sanchez. Fighting back, Sanchez
hacked Jamero with a bolo, resulting in the latters death.[9] Sanchez then proceeded
to the municipal building to surrender upon the advice of his son-in-law.[10]
 
Based on these facts, Sanchez insists in his Petition[11] dated November 17,
2003, that he acted in self-defense. According to him, Jamero was the unlawful
aggressor having struck him with a shovel. Had he not fought back by
hacking Jamero with a bolo, he would have been the one killed.
 
In its Comment[12] dated September 16, 2004, the Office of the Solicitor
General (OSG) maintains that the plea of self-defense, whether complete or
incomplete, should fail because there was no longer any unlawful aggression on
the part of Jamero when Sanchez hacked him.
 
According to the OSG, Jameros attack on Sanchez was unsuccessful because
the latter was able to evade it and Jameros shovel got stuck in the mud. Jamero fled
toward the ricefield when Sanchez unsheathed his bolo. Sanchez pursued him and
struck his head with a bolo. Jamero fell down but was able to stand up again. He
ran away but after a short distance, fell down again. Sanchez approached him and
stabbed him several times. Not satisfied, Sanchez pushed Jameros face down into
the knee-deep mud. After Jameros aggression ceased when he fled and left his
shovel stuck in the mud, there was no longer any justification for Sanchez to go
after him and hack him to death.
 
Sanchez filed a Reply to Respondents People of the Philippines
Comment[13] dated November 11, 2004, reiterating that he acted in self-defense.
 
We sustain the Decision of the Court of Appeals.
 
Self-defense is an affirmative allegation and offers exculpation from liability
for crimes only if satisfactorily shown. Self-defense requires: (a) unlawful
aggression on the part of the victim; (b) reasonable necessity of the means
employed by the accused to repel it; and (c) lack of sufficient provocation on his
part.[14]
 
Having admitted that he killed Jamero, the burden of evidence that one acted
in self-defense shifted to Sanchez. It is textbook doctrine that when self-defense is
invoked, the burden of evidence shifts to the appellant to show that the killing was
justified and that he incurred no criminal liability therefor. He must rely on the
strength of his own evidence and not on the weakness of the prosecutions
evidence, for, even if the latter were weak, it could not be disbelieved after his
open admission of responsibility for the killing. Hence, he must prove the essential
requisites of self-defense aforementioned.[15]
 
In this case, Sanchez failed to prove the element of unlawful aggression. The
positive and categorical eye-witness account of Saturnino Umambac (Umambac)
that Jamero ran away from Sanchez but that the latter pursued Jamero, caught up
with him and hacked him to death negates Sanchezs plea of self-
defense. Umambac testified:
 
Atty. Pedro S. Jamero
 
Q: While the three (3) of you were working at that time on that date and time,
could you recall if there was an unusual incident that happened?
A: There was.
 
Q: Please tell the Court.
A: There was a person who arrived.
 
Court
 
Q: How many person who [sic] arrived?
A: Only one (1).
 
Q: Do you know the name of the person who arrived?
A: Yes[,] Sir.
 
Atty. Pedro S. Jamero
 
Q: Who [sic] is the name of that person?
A: Celerino Sanche[z].
 
Court
 
Q: Was he bringing anything at that time?
A: Yes[,] Sir, a bolo was tucked at his waist.
 
Atty. Pedro S. Jamero
 
Q: What happened when Celerino Sanche[z] arrived at the place where the three
(3) of you were working?
A: Celerino Sanches said: Lex, do not cut grasses on my land, look at our
boundary.
 
Q: And then?
A: Felix Jamero continued shovelling dirt and grumbling at the same time as if
angry.
 
 
Q: And what transpired next?
A: He then acted as if to strike. ([W]itness demonstrated raising his hand holding
a shovel.) [A]t the same time Celerino S. Sanche[z] pulled out his bolo.
 
Court
 
Q: Who raised up the shovel?
A: It was Felix Jamero.
 
Q: And how far was the accused to Felix Jamero at that time?
A: Two (2) to three (3) meters.
 
Q: Felix Jamero was on the act of striking the accused with the shovel?
A: Yes[,] Sir.
 
Court:
 
Proceed
 
Q: Now, you said that at that instance Celerino Sanche[z] pulled his bolo,
what did he do after he pulled it?
A: He hacked Felix Jamero.
 
Q: Was Felix Jamero hit?
A: No[,] Sir.
 
Q: Now, since Felix Jamero was not hit, what happened next?
A: He ran away.
 
Q: Who ran away?
A: Felix Jamero.
 
Q: To what direction did Felix Jamero run away?
A: In [sic] his rice land.
 
Court
 
Q: Towards the direction of Celerino Sanche[z]?
A: No[,] Sir, going away.
 
Q: Was he following the cement of the rice field or did he run across the rice
field?
A: He was running right inside the rice field.
 
Q: And the rice field then at that time[,] was [it] full of water or was it dry?
A: With water, Sir.
 
Court:
 
Proceed
 
Atty. Pedro S. Jamero
 
Q: Now, while Felix Jamero was running on the rice field, what
did Celerino Sanche[z] do if anything?
A: He chased him, Sir.
 
Q: What happened when Celerino Sanche[z] chased Felix Jamero?
A: He was able to catch up with Felix Jamero.
 
Q: And what happened when Celerino Sanche[z] was able to catch up with
Felix Jamero?
A: He hacked him.
 
Q: Who hacked who?
A: It was Celerino Sanche[z] who hacked Felix Jamero.
 
Court:
 
Q: Was Felix Jamero facing Celerino Sanche[z] at the time he was hacked
by Celerino Sanche[z]?
A: Yes, Sir, they were facing each other. ([W]itness demonstrated)
 
Q: And Felix Jamero was still bringing the shovel [when] he was about to
strike Celerino Sanche[z]?
A: Not any more, Sir.
 
Q: What was then being brought by Felix Jamero?
A: Mud.
 
Court:
 
Proceed.
 
Atty. Pedro S. Jamero
 
Q: Now, you said, at the time Celerino Sanche[z] hacked Felix Jamero, was
Felix Jamero hit?
A: Yes[,] Sir.
 
Court
 
Q: What part of the body was he hit?
A: At the head. ([W]itness pointing at the head.)
 
Q: And what happened to Felix Jamero?
A: He was able to stand up and ran away but a distance away he fell down.
 
Q: And what did Celerino Sanche[z] do?
A: He approached him and hacked him and stabbed him.
 
Q: How many times did he hack Felix Jamero?
A: I was not able to count, Sir, but many times.
 
Q: How many times did Celerino Sanche[z] stab Felix Jamero?
A: I was not able to count also, Sir.
 
Court:
 
Proceed
 
Atty. Pedro S. Jamero
 
Q: On those occasions when you said Celerino Sanche[z] hacked and stabbed
Felix Jamero, the number of which you could no longer count, what was
the exact position of Felix Jamero relative to CelerinoSanche[z]?
A: He fell down on the mud.
 
Court
 
Q: The rice field was then very muddy at that time?
A: Yes[,] Sir.
 
Q: What did you do then at that time?
A: We were afraid to go near. So, we only watched them. We were only hired
help, Sir.
 
Court:
 
Proceed
 
Atty. Pedro S. Jamero
 
Q: What transpired after that?
A: He then rode on top of Felix Jamero and pushed him to the mud, Sir.
 
Court
 
Q: And then after that?
A: Greg, the son-in-law of Celerino Sanche[z] arrived.
 
Q: And then?
A: His bolo was taken away.
 
Q: Who took the bolo of whom?
A: Greg, [sic] took the bolo of Celerino Sanche[z].
 
Q: And what did he do with the bolo of Celerino Sanche[z]?
A: I did not notice what he did with the bolo, only that it was he who get the bolo.
 
Atty. Pedro S. Jamero
 
Q: After Greg took the bolo of Celerino Sanche[z], do you know where
did Celerino Sanche[z] go?
A: He ran away but I do not know where he ran away.
 
Court
 
Q: Who ran away?
 A: It was Celerino Sanche[z].
 
Atty. Pedro S. Jamero
 
Q: What about Felix Jamero, what happened to him?
A: He was left on the mud where he was hacked and we and his wife carried him.
[16]
 [Emphasis supplied]
 
 
While Jamero was inceptually the unlawful aggressor by his act of raising
his shovel to strike Sanchez, the unlawful aggression ceased to exist
when Jamero turned and ran towards the rice field.Sanchez himself admits that he
was not hit by Jameros shovel because he was able to step back and the shovel got
stuck in the mud. He testified:
 
Atty. Pedro Jamero
 
Q: It is not a fact[,] Mr. Witness, that when you were first allegedly hit by
Felix Jamero with his shovel you were not hit, is that correct?
A: Yes[,] Sir, because I was able to step back.
 
Q: And the shovel that was used by Felix Jamero in hacking you stuck to [sic] the
mud and he was not able to recover it, is that correct?
A: No[,] Sir, he was not able to pull the shovel back because it was stuck hard in
the mud.
 
Q: And that was the time that Felix Jamero threw mud on your face, is that
correct?
A: Yes[,] Sir.
 
Q: And after Felix Jamero threw mud at your face that was the time that you
hacked him several times which you said you could not remember
anymore because you lost consciousness or you went black out?
A: Yes[,] Sir.
 
Court
 
Q: How did the spade get at [sic] the mud?
A: The shovel got stuck at the mud. (Witness demonstrating that the face of the
shovel was the one that got stuck in the mud, sideways).
 
Q: That point of the shovel was directed at you but you were able to evade [it]?
A: Yes[,] Sir.
  
Q: And because of the force, the spade got buried at [sic] the mud?
A: Yes[,] Sir, because of the force the shovel got stuck to [sic] the mud and he
was not able to pull it anymore, so he threw mud at me.
 
Court:
 
Proceed.
 
Atty. Pedro Jamero
 
Q: When the shovel of Felix Jamero got stuck to [sic] the mud and he was not
able to pull it, that moment did it not occur to your mind to go away from
him to avoid further trouble?
A: After he threw the mud at me[,] Sir, he pulled the shovel but the shovel was
buried at the mud [and] he was not able to entirely pull it, so I hacked him.
[17]

 
 
 
 
There can be no self-defense, complete or incomplete, unless the accused
proves the first essential requisiteunlawful aggression on the part of the victim.
Unlawful aggression presupposes an actual, sudden and unexpected or imminent
danger on the life and limb of a person a mere threatening or intimidating attitude
is not sufficient. There must be actual physical force or a threat to inflict physical
injury. In case of a threat, it must be offensive and positively strong so as to
display a real, not imagined, intent to cause injury. Aggression, if not continuous,
does not constitute aggression warranting self-defense.[18]
 
In this case, the twin circumstances of Jameros shovel getting stuck in the
mud and his running away from Sanchez convincingly indicate that there was no
longer any danger to the latters life and limb which could have justified his pursuit
of Jamero and subsequent hacking and killing of the latter.
  
Sanchezs failure to prove unlawful aggression by Jamero and the
prosecutions evidence conclusively showing that it was Sanchez who was the
unlawful aggressor completely discounts Sanchezs claim of self-defense. Even
incomplete self-defense by its very nature and essence would always require the
attendance of unlawful aggression initiated by the victim which must clearly be
shown.[19]
 
 
 
 
WHEREFORE, the instant petition is DENIED. The Decision of the Court
of Appeals dated May 7, 2003 is hereby AFFIRMED. No pronouncement as to
costs.
 
SO ORDERED.
 
 
DANTE O. TINGA
Associate Justice
 
 
WE CONCUR:
 
 
 
 
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
  
 
 
 
 
ANTONIO T. CARPIO CONCHITA CARPIO MORALES
Associate Justice Associate Justice
 
 
 
 
 
PRESBITERO J. VELASCO, JR.
Associate Justice
 
 
 
 
 
ATTESTATION
 
I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Courts Division.
 
 
 
LEONARDO A. QUISUMBING
Associate Justice
Chairperson, Third Division
 
 
 
 
CERTIFICATION
 
Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons Attestation, it is hereby certified that the conclusions in the
above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.
 
 
 
ARTEMIO V. PANGANIBAN
Chief Justice
 
 
 

 
[1]
Rollo, pp. 18-23; Penned by Associate Justice Jose L. Sabio, Jr. and concurred in by Associate Justices
B.A. Adefuin-dela Cruz and Hakim S. Abdulwahid.
 
[2]
Id. at 25.
 
[3]
Records, p. 1.
 
[4]
Rollo, p. 19.
 
[5]
Id. at 317-319.
 
[6]
Id. at 319.
 
[7]
Rollo, p. 22.
 
[8]
TSN, June 21, 2000, p. 2.
 
[9]
TSN, April 12, 2000, pp. 2-3.
 
[10]
Id. at 4.
 
[11]
Rollo, pp. 7-16.
 
[12]
Id. at 64-74.
 
[13]
Id. at 80-82.
 
[14]
People v. Varona, 331 Phil. 3348, 354 (1996).
 
[15]
People v. Deopante, 331 Phil. 998, 1012 (1996).
 
[16]
TSN, July 10, 1998, pp. 5-12.
 
[17]
TSN, June 21, 2000, pp. 3-4.
 
[18]
Garcia v. People, G.R. No. 144699, March 10, 2004, 425 SCRA 221.
 
[19]
People v. Deopante, 331 Phil. 998 (1996).

FIRST DIVISION

[G.R. No. 156567. November 27, 2003]

JOSE RIMANO, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.

DECISION
YNARES-SANTIAGO, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court

assailing the December 16, 2002 decision  of the Court of Appeals in CA-G.R. CR No.
[1]

17838 which modified the penalty imposed on petitioner Jose Rimano for the crime of
homicide in Criminal Case No. 3597 and frustrated homicide in Criminal Case No. 3595.
[2]

Petitioner was originally charged in three separate informations for the crimes of
homicide and two counts of frustrated homicide. Upon arraignment on September 7,
1992, he pleaded not guilty  to all the charges against him. After trial, the court a
[3]

quo found him guilty beyond reasonable doubt of homicide in Criminal Case No. 3597
and of two counts of frustrated homicide in Criminal Case Nos. 3578 and 3595.On
appeal to the Court of Appeals, the latter acquitted petitioner in Criminal Case No. 3578
for frustrated homicide and affirmed with modification his convictions in Criminal Case
No. 3597 for homicide and in Criminal Case No. 3595 for frustrated homicide. Hence,
the instant petition refers to his conviction insofar as Criminal Case No. 3597 and
Criminal Case No. 3595 are concerned.
The information in Criminal Case No. 3597 for homicide, reads:

That on or about the 16th day of October 1991, in the evening, in Poblacion,
Municipality of Malinao, Province of Aklan, Republic of the Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, while armed with
a deadly weapon, consisting of a knife, without justifiable cause and with intent to
kill, did then and there, willfully, unlawfully and feloniously attack, assault and stab
one NESTOR IMPORTADO, thereby inflicting upon the latter physical injuries, to
wit:

Stabbed Wounds:

(a) Right chest with moderate hemathorax at two (02) points

(b) Right upper quadrant, left wrist two (02) points, right back at one (01) point,
neck

Cause of Death:

Massive Hemorrhage due to multiple wound with penetration at the liver, gall bladder,
small intestine at many points, diaphragm right.

as per Post Operative Findings issued by Dr. Reynaldo P. Sucgang, Jr. M.D., Medical
Specialist 1, of Dr. Rafael S. Tumbokon Memorial Hospital, Kalibo, Aklan, attached
hereto as annex A and made an integral part of this information which injuries caused
the death of said NESTOR IMPORTADO.

That as a consequence of the criminal acts of the accused, the heirs of the deceased
NESTOR IMPORTADO suffered actual and compensatory damages in the amount of
FIFTY THOUSAND PESOS (P50,000.00).

CONTRARY TO LAW. [4]

Criminal Case No. 3595 (frustrated homicide)

That on or about the 16th day of October 1991, in the evening, in Poblacion,
Municipality of Malinao, Province of Aklan, Republic of the Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, while armed with
a knife, with intent to kill, did then and there, willfully, unlawfully and feloniously
attack, assault and stab one ISAIAS IBARDOLASA,  JR., thereby inflicting upon the
[5]

latter physical injury, to wit:

Stabbed wound left back with massive hemathorax left.

as per Medico-Legal Report on Physical Injuries issued by Dr. Reynaldo P.

Sucgang, Medical Specialist I of the Dr. Rafael S. Tumbokon Memorial Hospital,
Kalibo, Aklan, hereto attached and an integral part hereof, the accused having thus
performed all the acts of execution which would have produced the crime of
Homicide as a consequence, but which, nevertheless, did not produce it by reason
of causes independent of the will of the accused, that is, the timely and able
medical assistance rendered to said ISAIAS IBARDOLASA, JR., which prevented
his death.

That by reason of the criminal acts of the accused, ISAIAS IBARDOLASA, JR.,
suffered actual and compensatory damages in the amount of P20,000.00.

CONTRARY TO LAW. [6]

The facts as found by the Court of Appeals are as follows:

At around 8:30 in the evening of October 16, 1991, Nelson Importado, suddenly
attacked petitioner with a knife in front of a billiard hall at the corner of Sto. Rosario
Street and Roxas Avenue, Malinao, Aklan.The area was well illuminated by a
fluorescent lamp. In the process of grappling for the possession of the knife, petitioner
was able to get hold thereof and stabbed Nelson twice. The latter retreated to the
billiard hall, 8 meters away from petitioner.  Thereafter, Nestor Importado, brother of
[7]

Nelson, rushed towards the petitioner and boxed him, who retaliated by delivering
successive stabbing blows which landed at the frontal portion of Nestors body.  At this
[8]

point, Isaias Ibardalosa, Jr., tried to separate the two. When Nestor turned his back,
petitioner stabbed him. The former was able to flee while Isaias and the petitioner
wrestled. Shortly thereafter, they fell on the ground with Isaias on top of the
petitioner. Petitioner was facing up and pinned by Isaias on the shoulders. But since
petitioners hands were free, he was able to stab Isaias at the back. Then, petitioner
scampered away towards Malinao Elementary School.  The stabbing of Nestor and
[9]

Isaias was witnessed by Froilan Sucro from the window of his house, 5 meters away
from the victims.
[10]

Dr. Victor Sta. Maria, who interpreted the Post Operative Findings on the deceased
Nestor Importado, testified that the latter sustained six wounds,  thus
[11]

(a) right chest with moderate hemathorax at two (2) points;

(b) right upper quadrant, left wrist two (02) points, right back at one (01) point, neck. [12]
 On the other hand, the Medico Legal Report states that Isaias Ibardalosa, Jr.
sustained a single stabbed wound left back. [13]

Invoking self-defense, petitioner testified that at around 8:30 p.m. of October 16,
1991, he and some of his students went to the police station of Malinao, Aklan, to report
an assault on one of his baseball players.  On their way back to their sleeping quarters
[14]

at Malinao Elementary School, they passed by a group having a drinking spree in front
of a billiard hall. Petitioners students were walking about 8 meters ahead of him.  He [15]

proceeded and saw a man standing in the middle of the road, whom he later learned
was the deceased Nestor Importado. Petitioner greeted Nestor, Good evening, let us go
to sleep now.  The latter did not answer. He noticed a knife in Nestors right hand. The
[16]

latter suddenly rushed towards him and tried to stab him. Petitioner, using both his
hands, grabbed Nestors right hand and placed Nestors arms on his shoulder with his
back facing him.  While they were wrestling for the possession of the knife, Nelson
[17]

Importado,  brother of Nestor, came and boxed petitioner in the face.  Nelson
[18] [19]

delivered another fist blow but he was accidentally stabbed by the knife which was still
in the hands of Nestor. Nelson fell but was able to stagger towards the billiard hall.  As [20]

petitioner and Nestor struggled for the possession of the knife, Isaias Ibardalosa,
Nestors compadre,  boxed petitioner on the right eye. At this instant, petitioner got hold
[21]

of the knife and swung it 2 or 3 times hitting Nestor who was behind him and pulled his
collar.  However, the knife was thrown away from his hand by Isaias. Petitioner kicked
[22]

Isaias but somebody hit him causing him to fall to the ground face up.  Isaias [23]

immediately pinned him down,  holding his two arms.  While they were in that position,
[24] [25]

Nelson  came back and delivered 2 stabbing blows. The first thrust hit Isaias who was
[26]

on top of petitioner and the other one hit the ground.Petitioner was able to free himself
and he ran towards the Malinao Elementary School.  The next day, he presented
[27]

himself to the authorities at Camp Pastor Martelino in Kalibo, Aklan. [28]

After trial on the merits, the trial court rendered a decision on November 23, 1994,
the dispositive portion thereof, reads:

WHEREFORE, the accused Jose Rimano is hereby sentenced in Criminal Case No.
3597 to suffer the penalty of imprisonment for EIGHT (8) YEARS and ONE day
of prision mayor as minimum, to FOURTEEN (14) YEARS, EIGHT (8) MONTHS
and ONE (1) DAY of reclusion temporal as maximum, and to indemnify the heirs of
the victim Nestor Importado FIFTY THOUSAND PESOS (P50,000.00), and to pay
the costs.

The accused Jose Rimano is hereby sentenced in Criminal Case No. 3595 to suffer the
penalty of imprisonment for TWO (2) YEARS, FOUR MONTHS and ONE (1) DAY
of prision correccional as minimum, to EIGHT (8) YEARS and ONE (1) DAY
of prision mayor as maximum, and to pay the victim Isaias Ibardalosa, Jr., actual
damage[s] in the amount of TWENTY-TWO THOUSAND, EIGHTY-EIGHT PESOS
& TWENTY-EIGHT CENTAVOS (P22, 088.28), and to pay the costs.
The accused Jose Rimano is hereby sentenced in Criminal Case No. 3578 to suffer the
penalty of imprisonment for TWO (2) YEARS, FOUR (4) MONTHS and ONE (1)
DAY of prision correccional as minimum, to EIGHT (8) YEARS and ONE (1) DAY
of prision mayor as maximum, and to pay the costs.

SO ORDERED. [29]

On appeal, the Court of Appeals acquitted petitioner of frustrated homicide in

Criminal No. 3578, after finding that he acted in legitimate self-defense when he
stabbed Nelson Importado. His convictions in Criminal Case No. 3597 for homicide and
in Criminal Case No. 3595 for frustrated homicide were, however, affirmed with
modification. The decretal portion thereof states:
WHEREFORE, foregoing premises considered and pursuant to applicable laws and
jurisprudence on the matter and evidence on hand, the instant appeal is hereby partly
granted. The assailed judgment is hereby modified as follows:

In Criminal No. 3578, accused-appellant is hereby acquitted of the crime charged.

In Criminal Case No. 3595, accused-appellant Jose Rimanos prison term is reduced
to SIX (6) MONTHS of arresto mayor as minimum to TWO (2) years, FOUR (4)
months and ONE (1) DAY of prision correccional as maximum.

In Criminal Case No. 3597, appellants prison term is reduced to TWO (2) years,
FOUR (4) MONTHS and ONE (1) DAY of prision correccional as minimum to
EIGHT (8) years and ONE (1) day of prision mayor as maximum.

All other aspects of the decision are AFFIRMED. No Costs.

SO ORDERED. [30]

Hence, the instant petition based on the following assignment of errors:

A.
FOR CRIMINAL CASE NO. 3597, THE COURT OF APPEALS COMMITTED A
PALPABLE ERROR AND GRAVE MISAPPREHENSION OF FACTS IN NOT
LIKEWISE ACQUITTING PETITIONER OF THE CHARGE OF HOMICIDE
BECAUSE CONTRARY TO ITS FINDING, PETITIONER EMPLOYED
REASONABLE MEANS TO REPEL THE UNPROVOKED ATTACK AND
UNLAWFUL AGGRESSION OF NESTOR IMPORTADO WHO WAS ARMED WITH
A BLADED WEAPON.
B.
FOR CRIMINAL CASE NO. 3595, THE COURT OF APPEALS COMMITTED A
PALPABLE ERROR AND GRAVE MISAPPREHENSION OF FACTS IN NOT
LIKEWISE ACQUITTING PETITIONER OF THE CHARGE OF FRUSTRATED
 HOMICIDE BECAUSE CONTRARY TO ITS FINDING, PETITIONER EMPLOYED
REASONABLE MEANS TO REPEL THE UNPROVOKED ATTACK OF ISAIAS
IBARDALOZA, JR. WHO JOINED THE UNRELENTING AND VICIOUS ATTACK
INITIATED BY THE IMPORTADO BROTHERS.
C.
ONLY ASSUMING ARGUENDO THAT PETITIONER MAY BE CREDITED WITH
THE PRIVILEGED MITIGATING CIRCUMSTANCE OF INCOMPLETE SELF-
DEFENSE FOR CRIMINAL CASE NO. 3597, THE COURT OF APPEALS
COMMITTED A PALPABLE ERROR IN NOT REDUCING AND/OR LOWERING
THE PENALTY BY TWO DEGREES PURSUANT TO THE HONORABLE COURTS
RULING IN TORRES VS. SANDIGANBAYAN, 143 SCRA 139, 145 [1986] WHICH
IS APPLICABLE TO PETITIONER.
D.
ONLY ASSUMING ARGUENDO THAT PETITIONER MAY BE CREDITED WITH
THE PRIVILEGED MITIGATING CIRCUMSTANCE OF INCOMPLETE SELF-
DEFENSE FOR CRIMINAL CASE NO. 3595, THE COURT OF APPEALS
COMMITTED A PALPABLE ERROR IN NOT REDUCING AND/OR LOWERING
THE PENALTY BY TWO DEGREES PURSUANT TO THE HONORABLE COURTS
RULING IN TORRES VS. SANDIGANBAYAN, 143 SCRA 139, 145 [1986] WHICH
IS APPLICABLE TO PETITIONER.[31]
When an accused pleads self-defense, he thereby admits authorship of the
crime. Consequently, the burden of proving his guilt, which lies upon the prosecution, is
shifted to him. He must prove by clear and convincing evidence the elements of self-
defense, to wit: (1) unlawful aggression; (2) reasonable necessity of the means
employed to prevent or repel the unlawful aggression; and (3) lack of sufficient
provocation on the part of the person defending himself.  Unlawful aggression is
[32]

a condition sine qua non for upholding the justifying circumstance of self-

defense. Unless the victim has committed unlawful aggression against the other, there
can be no self-defense, complete or incomplete, on the part of the latter. If there is
nothing to prevent or repel, the other two requisites of self-defense will have no basis.
[33]

In the case at bar, we find no error in the findings of the Court of Appeals that
unlawful aggression existed and that the same came from the Importado brothers and
Isaias Ibardalosa, Jr. Evidence shows that Nelson Importado was the first to attack
petitioner with a knife and that the latter was able to get hold of said weapon which he
used to repel the unlawful aggression of Nelson, Nestor and Isaias, who attacked him
one after the other. The assaults were not simultaneous, but successive, enabling
petitioner to separately and effectively repel the aggression of his unarmed
attackers. The question, therefore, lies in the presence or absence of the second and
third requisites of self defense, i.e., the reasonable necessity of the means employed by
petitioner to protect his life and whether there was sufficient provocation on his part.
In Criminal Case No. 3597, for homicide, while the aggression came from Nestor
Importado, the second attacker, there was no necessity for petitioner to stab him 6
times, especially considering that the latter was unarmed. Moreover, the stab wound at
the back of the deceased which was delivered by petitioner after the former already
sustained wounds on his chest and abdomen cannot certainly be considered as
reasonably necessary. When Nestor turned his back, there was no more need to stab
him because the danger he posed had ceased.
As to the third requisite that the provocation must be sufficient, it should be
proportionate to the aggression and adequate to stir the aggressor to its commission.
 To be entitled to self-defense, however, the one defending himself must not have
[34]

given cause for the aggression by his unjust conduct or by inciting or provoking the
aggressor. [35]

In the instant case, petitioners act of stabbing Nelson cannot be considered as

sufficient provocation for Nestor to avenge his brothers injuries. We note that in Criminal
Case No. 3578, for frustrated homicide, petitioner was acquitted by the Court of Appeals
for stabbing Nelson because he was found to have acted in legitimate self-
defense. Under the contemplation of law, while petitioners act may indeed stir Nestor to
commit violence, the former should still be credited with the benefit of the third requisite
because the cause he gave arose from a just act to protect his life.
In Criminal Case No. 3595, for frustrated homicide, we sustain the finding of the
court below that it was petitioner and not Nelson Importado, as claimed by the defense,
who stabbed Isaias Ibardalosa, Jr.This is supported by the testimony of Froilan Sucro,
whose declaration is entitled to full faith and credit inasmuch as he was not shown to
have been impelled by ill motive to perjure himself.  It cannot be denied, however, that
[36]

the unlawful aggression came from Isaias who, after intervening between Nestor and
petitioner, wrestled with the latter. As previously stated, Isaias pinned petitioner to the
ground face up while holding petitioners shoulders. While in this position, petitioner was
able to free himself by delivering a single stabbing blow at the back of Isaias.  Under the
circumstances, it is reasonable to conclude that petitioner did not use unnecessary
means to repel an ongoing attack. It would not be proper and reasonable to require
petitioner to flee or use a less deadly weapon or defense, because in the situation in
which he was placed, it was natural for him to use the weapon he was holding to defend
himself. In the natural order of things, following the instinct of self preservation, he was
compelled to resort to the available defense.  In emergencies of this kind, human
[37]

nature does not act upon processes of formal reason but in obedience to the instinct of
self-preservation; and when it is apparent that a person has reasonably acted upon this
instinct, it is the duty of the courts to sanction that act or to mitigate his liability.
[38]

Anent the third requisite, we find that petitioner gave sufficient provocation for Isaias
Ibardalosa, Jr. to assault him. Contradistinguished to his act of stabbing Nelson
Importado, which was justified and hence cannot be considered as sufficient
provocation insofar as his brother, Nestor, is concerned, petitioners act of stabbing
Nestor 6 times can no longer be considered justified or a legitimate self-defense
because of the unreasonable necessity of the means he employed. Inflicting 5 stab
wounds at the frontal portion of Nestors body and another one at the back before the
latter fled can be considered as sufficient provocation to cause Nestors friend, Isaias
Ibardalosa, Jr., to intervene and thereafter wrestle with petitioner. Hence, self-defense
cannot successfully be raised to justify petitioners act of stabbing Isaias Ibardalosa, Jr.,
because he gave the latter sufficient provocation to assault him. At the most, he could
be credited with the privileged mitigating circumstance of incomplete self-defense.
Under Article 69  of the Revised Penal Code, in order to avail of the privileged
[39]

mitigating circumstance of incomplete self-defense which at the discretion of the court,

reduces the penalty by one or two degrees, than that prescribed by law, appellant must
prove the existence of a majority of the requisites for self-defense.
In the case at bar, a majority of the requisites of the justifying circumstance of self-
defense, including the indispensable requisite of unlawful aggression on the part of the
victims, are present in Criminal Cases Nos. 3597 and 3595. Petitioner, a public
elementary school teacher, was unsuspectingly walking along with his students without
the slightest inkling of an impending harm that would radically change the rest of his
life. While it is true that he may have over-reacted to the assault and in the process
provoked another attack, the fact remains that it was the unlawful aggression of the
victims which set into motion the series of events which brought upon themselves the
injuries complained of. Under the circumstances, we deem it proper to modify the
penalties imposed by the Court of Appeals by lowering them by two degrees than that
prescribed by law. [40]

Article 249 of the Revised Penal Code provides that the penalty for homicide
is reclusion temporal. Considering that the requisites of unlawful aggression and lack of
sufficient provocation on the part of petitioner are present in Criminal Case No. 3597, he
is entitled to a penalty two degrees lower than reclusion temporal, that is, prision
correccional. There being no modifying circumstances attendant in the present case,
the proper impossible penalty is prision correccional in its medium period.  Applying the
[41]

indeterminate sentence law, petitioner is entitled to an indeterminate penalty the

minimum of which shall be within the range of arresto mayor, and the maximum of
which shall be within the range of prision correccional medium.
Pursuant to Article 50  of the Revised Penal Code, the penalty for a frustrated
[42]

crime is one degree lower than that prescribed by law for the consummated felony;
thus, frustrated homicide is punishable byprision mayor. Since a majority of the
requisites of self defense unlawful aggression and reasonable necessity of the means
employed are attendant in Criminal Case No. 3595 for frustrated homicide, petitioner is
also entitled to a penalty two degrees lower.  The imposable penalty on petitioner
[43]

would therefore be arresto mayor. The same shall be imposed in its medium period as
there are no attendant modifying circumstances.  Since the maximum term of
[44]

imprisonment does not exceed one year, the Indeterminate Sentence Law does not
apply.[45]

As regards his civil liability in Criminal Case No. 3597 for homicide, petitioner, in
addition to the civil indemnity of P50,000.00, should be further ordered to pay the heirs
of the deceased Nestor Importado, moral damages in the amount of P50,000.00 and
temperate damages of P25,000.00 in lieu of actual damages. As testified by Merly
Importado, the widow of the deceased, she was shocked and mentally tortured by the
death of her husband.  Hence, the award of moral damages, which current
[46]

jurisprudence set at P50,000.00, is proper.  To justify an award of actual damages, on

[47]

the other hand, there must be competent proof of the actual amount of loss. Credence
can only be given to those that are supported by receipts and appear to have been
genuinely incurred in connection with the death, wake and burial of the victim.
 Considering that the receipts presented by the prosecution do not show that the
[48]

expenses stated therein were really incurred in connection with the death and burial of
the victim, the claim for actual damages cannot be allowed. However, since it cannot be
denied that the victims heirs suffered pecuniary loss but the amount of which cannot be
proved with certainty, temperate damages in the amount of P25,000.00 may be
awarded. [49]

In Criminal Case No. 3595, for frustrated homicide the award of P22,888.28 as
actual damages is affirmed considering that it was supported by receipts.
WHEREFORE, in view of all the foregoing, the December 16, 2002 decision of the
Court of Appeals in CA-G.R. CR No. 17838 finding petitioner Jose Rimano guilty
beyond reasonable doubt of homicide in Criminal Case No. 3597, and of frustrated
homicide in Criminal Case No. 3595, is AFFIRMED with the
following MODIFICATIONS: In Criminal Case No. 3597, petitioner is sentenced to suffer
the indeterminate penalty of two (2) months and one (1) day of arresto mayor, as
minimum, to two (2) years, four (4) months and one (1) day of prision correccional, as
maximum. In addition to the civil indemnity of P50,000.00, petitioner is further ordered to
pay the heirs of the deceased Nestor Importado, the amount of P50,000.00 as moral
damages and P25,000.00 as temperate damages. In Criminal Case No. 3595, petitioner
is sentenced to suffer the penalty of 4 months of arresto mayor and to pay the victim,
Isaias Ibardalosa, Jr., the amount of P22,888.28 as actual damages.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Panganiban, Carpio and Azcuna, JJ., concur.

[1]
 Rollo, p. 10; penned by Associate Justice Jose L. Sabio, Jr. and concurred in by Associate Justices
Portia Alino-Hormachuelos and Amelita G. Tolentino.
[2]
 Decision dated 23 November 1994; penned by Judge Maria Carillo Zaldivar.
[3]
 Criminal Case No. 3597, Records, p. 18; Criminal Case No. 3595, Records, p. 20; Criminal Case No.
3578, Records, p. 26.
[4]
 Criminal Case No. 3597, Records, p. 1.
[5]
 Sometimes spelled as Ibardaloza in the records.
[6]
 Criminal Case No. 3595, Records, p. 1.
[7]
 TSN, 13 November 1992, p. 4.
[8]
 Id., pp. 3-4.
[9]
 TSN, 13 November 1992, pp. 5-6; 4 January 1994, pp. 5-8; 23 July 1993, pp. 11-13.
[10]
 TSN, 4 January 1994, p. 5.
[11]
 TSN, 21 June 1993, pp. 4-6.
[12]
 Exhibit G, Post Operative Findings.
[13]
 Exhibit F".
[14]
 Id., pp. 140-141; 144-145.
[15]
 Id., pp. 146-147.
[16]
 Id., p. 148.
[17]
 Id., pp. 148-151.
[18]
 TSN, 30 August 1994, p. 28.
[19]
 TSN, 29 August 1994, p. 153.
[20]
 Id., pp. 153-154.
[21]
 TSN, 23 July 1993, p. 4.
[22]
 TSN, 29 August 1994, pp. 154-157.
[23]
 TSN, 30 August 1994, pp. 2-3.
[24]
 Id., p. 29.
[25]
 Id., p. 4.
[26]
 Id., p. 29.
[27]
 Id., pp. 4-6.
[28]
 Id., pp. 30-31.
[29]
 Rollo, p. 93.
[30]
 Rollo, pp. 69-70.
[31]
 Rollo, pp. 38-40.
[32]
 People v. Hugo, G.R. No. 134604, 28 August 2003.
[33]
 People v. Escarlos, G.R. No. 148912, 10 September 2003, citing People v. Camacho, 411 Phil. 715
(2001); People v. Flores, G.R. No. 138841, 4 April 2001, 356 SCRA 332; People v. Court of
Appeals, G.R. No. 103613, 23 February 2001, 352 SCRA 599;Calim v. Court of Appeals, G.R.
No. 140065, 13 February 2001, 351 SCRA 599.
[34]
 People v. Alconga, 78 Phil. 366 (1947), cited in Reyes, The Revised Penal Code, Vol. I, 1998 Edition,
p. 180.
[35]
 Reyes, The Revised Penal Code, Vol. I, 1998 Edition, p. 179.
[36]
 People v. Garillo, G.R. No. 146189, 24 February 2003.
[37]
 People v. Paras, 9 Phil. 367, 369-370 (1907).
[38]
 People v. Viernes, 331 Phil. 146, 162 (1996), citing People of the Philippines v. Encomienda, G.R. No.
L-26750, 18 August 1972, 26 SCRA 522, 534; People v. Lara, 48 Phil. 153 (1925).
[39]
 Art. 69. Penalty to be imposed when the crime committed is not wholly excusable. 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 Article 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.
[40]
 People v. Bergao, 52 Phil. 313 (1928).
[41]
 Article 64 (1), Revised Penal Code.
[42]
 Art. 50. Penalty to be imposed upon principals of a frustrated crime. The penalty next lower in degree
than that prescribed by law for the consummated felony shall be imposed upon the principal in a
frustrated felony.
[43]
 Article 69, Revised Penal Code.
[44]
 Article 64 (1), Revised Penal Code.
[45]
 Act No. 4103, Sec. 2, as amended.
[46]
 TSN, November 29, 1993, p. 23.
[47]
 People v. Escarlos, G.R. No. 148912, 10 September 2003, citing People v. Villanueva, G.R. No.
139177, 11 August 2003; People v. Ibaez, G.R. Nos. 133923-24, 30 July 2003.
[48]
 People v. Reyes, G.R. No. 142467, 10 June 2003.
[49]
 People v. Abrazaldo, G.R. No. 124392, 7 February 2003.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 135981             January 15, 2004

PEOPLE OF THE PHILIPPINES, appellee, 

vs.
MARIVIC GENOSA, appellant.

DECISION

PANGANIBAN, J.:

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

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

incomplete.

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

In addition, appellant should also be credited with the extenuating

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

Considering the presence of these two mitigating circumstances arising

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

The Case

For automatic review before this Court is the September 25, 1998
Decision1 of the Regional Trial Court (RTC) of Ormoc City (Branch 35) in
Criminal Case No. 5016-0, finding Marivic Genosa guilty beyond
reasonable doubt of parricide. The decretal portion of the Decision reads:

"WHEREFORE, after all the foregoing being duly considered,

the Court finds the accused, Marivic Genosa y Isidro, GUILTY
beyond reasonable doubt of the crime of Parricide as provided
under Article 246 of the Revised Penal Code as restored by
Sec. 5, RA No. 7659, and after finding treachery as a generic
aggravating circumstance and none of mitigating circumstance,
hereby sentences the accused with the penalty of DEATH.
 "The Court likewise penalizes the accused to pay the heirs of
the deceased the sum of fifty thousand pesos (P50,000.00),
Philippine currency as indemnity and another sum of fifty
thousand pesos (P50,000.00), Philippine currency as moral
damages."2

The Information3 charged appellant with parricide as follows:

"That on or about the 15th day of November 1995, at Barangay

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

'Cadaveric spasm.

'Body on the 2nd stage of decomposition.

'Face, black, blownup & swollen w/ evident post-mortem

lividity. Eyes protruding from its sockets and tongue
slightly protrudes out of the mouth.

'Fracture, open, depressed, circular located at the

occipital bone of the head, resulting [in] laceration of the
brain, spontaneous rupture of the blood vessels on the
posterior surface of the brain, laceration of the dura and
meningeal vessels producing severe intracranial
hemorrhage.

'Blisters at both extrem[i]ties, anterior chest, posterior

chest, trunk w/ shedding of the epidermis.

'Abdomen distended w/ gas. Trunk bloated.'

which caused his death."4

With the assistance of her counsel,5 appellant pleaded not guilty during her
arraignment on March 3, 1997.6 In due course, she was tried for and
convicted of parricide.

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) summarizes the prosecution's

version of the facts in this wise:

"Appellant and Ben Genosa were united in marriage on

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

"On November 15, 1995, Ben and Arturo Basobas went to a

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

"On November 16, 1995, appellant asked Erlinda Paderog, her

close friend and neighbor living about fifty (50) meters from her
house, to look after her pig because she was going to Cebu for
a pregnancy check-up. Appellant likewise asked Erlinda to sell
her motorcycle to their neighbor Ronnie Dayandayan who
unfortunately had no money to buy it.
"That same day, about 12:15 in the afternoon, Joseph Valida
was waiting for a bus going to Ormoc when he saw appellant
going out of their house with her two kids in tow, each one
carrying a bag, locking the gate and taking her children to the
waiting area where he was. Joseph lived about fifty (50) meters
behind the Genosas' rented house. Joseph, appellant and her
children rode the same bus to Ormoc. They had no
conversation as Joseph noticed that appellant did not want to
talk to him.

"On November 18, 1995, the neighbors of Steban Matiga told

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

"Meanwhile, in the morning of the same day, SPO3 Leo

Acodesin, then assigned at the police station at Isabel, Leyte,
received a report regarding the foul smell at the Genosas'
rented house. Together with SPO1 Millares, SPO1 Colon, and
Dr. Refelina Cerillo, SPO3 Acodesin proceeded to the house
and went inside the bedroom where they found the dead body
of Ben lying on his side wrapped with a bedsheet. There was
blood at the nape of Ben who only had his briefs on. SPO3
Acodesin found in one corner at the side of an aparadora metal
pipe about two (2) meters from where Ben was, leaning against
a wall. The metal pipe measured three (3) feet and six (6)
inches long with a diameter of one and half (1 1/2) inches. It
had an open end without a stop valve with a red stain at one
end. The bedroom was not in disarray.
"About 10:00 that same morning, the cadaver of Ben, because
of its stench, had to be taken outside at the back of the house
before the postmortem examination was conducted by Dr.
Cerillo in the presence of the police. A municipal health officer
at Isabel, Leyte responsible for medico-legal cases, Dr. Cerillo
found that Ben had been dead for two to three days and his
body was already decomposing. The postmortem examination
of Dr. Cerillo yielded the findings quoted in the Information for
parricide later filed against appellant. She concluded that the
cause of Ben's death was 'cardiopulmonary arrest secondary to
severe intracranial hemorrhage due to a depressed fracture of
the occipital [bone].'

"Appellant admitted killing Ben. She testified that going home

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

"Then, Ben purportedly nagged appellant for following him,

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

"Appellant, however, insisted that she ended the life of her

husband by shooting him. She supposedly 'distorted' the drawer
where the gun was and shot Ben. He did not die on the spot,
though, but in the bedroom."7 (Citations omitted)

Version of the Defense

Appellant relates her version of the facts in this manner:

"1. Marivic and Ben Genosa were allegedly married on

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

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

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

"4. Ben's brother, Alex, testified for the prosecution that he

could not remember when Ben and Marivic married. He said
that when Ben and Marivic quarreled, generally when Ben
would come home drunk, Marivic would inflict injuries on him.
He said that in one incident in 1993 he saw Marivic holding a
kitchen knife after Ben had shouted for help as his left hand
was covered with blood. Marivic left the house but after a week,
she returned apparently having asked for Ben's forgiveness. In
another incident in May 22, 1994, early morning, Alex and his
father apparently rushed to Ben's aid again and saw blood from
Ben's forehead and Marivic holding an empty bottle. Ben and
Marivic reconciled after Marivic had apparently again asked for
Ben's forgiveness.

"Mrs. Iluminada Genosa, Marivic's mother-in-law, testified too,

saying that Ben and Marivic married in '1986 or 1985 more or
less here in Fatima, Ormoc City.' She said as the marriage went
along, Marivic became 'already very demanding. Mrs. Iluminada
Genosa said that after the birth of Marivic's two sons, there
were 'three (3) misunderstandings.' The first was when Marivic
stabbed Ben with a table knife through his left arm; the second
incident was on November 15, 1994, when Marivic struck
Ben on the forehead 'using a sharp instrument until the eye was
also affected. It was wounded and also the ear' and her
husband went to Ben to help; and the third incident was in 1995
when the couple had already transferred to the house in
Bilwang and she saw that Ben's hand was plastered as 'the
bone cracked.'

"Both mother and son claimed they brought Ben to a Pasar

clinic for medical intervention.

"5. Arturo Basobas, a co-worker of Ben, testified that on

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

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

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

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

"These incidents happened several times and she would often

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

"7. In her defense, witnesses who were not so closely related to

Marivic, testified as to the abuse and violence she received at
the hands of Ben.

'7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of

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

'7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of

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

'7.3. Mr. Teodoro Sarabia was a former neighbor of the

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

'7.4. Miss Ecel Arano, an 18-year old student, who is a cousin

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

'7.5. Dr. Dino Caing, a physician testified that he and Marivic

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

xxx   xxx   xxx

'Dr. Caing's clinical history of the tension headache and

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

"On cross-examination, Dr. Caing said that he is not a

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

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

xxx   xxx   xxx

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

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

"On cross-examination, Marivic insisted she shot Ben with a

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

'Answering questions from the Court, Marivic said that she

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

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

"10. Dra. Refelina Y. Cerillo, a physician, was the Municipal

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

xxxxxxxxx

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

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

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

"12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21

July 1997, 17, 22 and 23 September 1997, 12 November 1997,
15 and 16 December 1997, 22 May 1998, and 5 and 6 August
1998.

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

"14. The case was elevated to this Honorable Court upon

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

"The Honorable Court allowed the withdrawal of Atty.

Tabucanon and permitted the entry of appearance of
undersigned counsel.

"15. Without the knowledge of counsel, Marivic Genosa wrote a

letter dated 20 January 2000, to the Chief Justice, coursing the
same through Atty. Teresita G. Dimaisip, Deputy Clerk of Court
of Chief Judicial Records Office, wherein she submitted her
'Brief without counsels' to the Court.

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

February 2000.
"16. In the meantime, under date of 17 February 2000, and
stamp-received by the Honorable Court on 19 February 2000,
undersigned counsel filed an URGENT OMNIBUS MOTION
praying that the Honorable Court allow the exhumation of Ben
Genosa and the re-examination of the cause of his death; allow
the examination of Marivic Genosa by qualified psychologists
and psychiatrists to determine her state of mind at the time she
killed her husband; and finally, to allow a partial re-opening of
the case a quo to take the testimony of said psychologists and
psychiatrists.

"Attached to the URGENT OMNIBUS MOTION was a letter of

Dr. Raquel Fortun, then the only qualified forensic pathologist in
the country, who opined that the description of the death wound
(as culled from the post-mortem findings, Exhibit 'A') is more
akin to a gunshot wound than a beating with a lead pipe.

"17. In a RESOLUTION dated 29 September 2000, the

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

"18. On 15 January 2001, Dra. Natividad A. Dayan appeared

and testified before the Hon. Fortunito L. Madrona, RTC-Branch
35, Ormoc City.

"Immediately before Dra. Dayan was sworn, the Court a

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

"Dra. Dayan testified that she has been a clinical psychologist

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

"Dra. Dayan testified that for the research she conducted, on

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

"Dra. Dayan described domestic violence to comprise of 'a lot of

incidents of psychological abuse, verbal abuse, and emotional
abuse to physical abuse and also sexual abuse.'

xxx   xxx   xxx

"Dra. Dayan testified that in her studies, 'the battered woman

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

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

"Dra. Dayan testified that there are a lot of reasons why a

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

xxx   xxx   xxx

"Dra. Dayan said that abused wives react differently to the

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

xxx   xxx   xxx

"Dra. Dayan said that as a result of the battery of psychological

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

xxx   xxx   xxx

"Dra. Dayan said Marivic thought of herself as a loving wife and

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

xxx   xxx   xxx

"19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who

has since passed away, appeared and testified before RTC-
Branch 35, Ormoc City.

"Dr. Pajarillo was a Diplomate of the Philippine Board of

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

"He authored 'The Comparative Analysis of Nervous

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

"Dr. Pajarillo explained that psychiatry deals with the functional

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

"Even only in his 7th year as a resident in V. Luna Medical

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

"As such consultant, he had seen around forty (40) cases of

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

"In psychiatry, the post-traumatic stress disorder is incorporated

under the 'anxiety neurosis or neurologic anxcietism.' It is
produced by 'overwhelming brutality, trauma.'

xxx   xxx   xxx

"Dr. Pajarillo explained that with 'neurotic anxiety', the victim

relives the beating or trauma as if it were real, although she is
not actually being beaten at that time. She thinks 'of nothing but
the suffering.'

xxx   xxx   xxx

"A woman who suffers battery has a tendency to become

neurotic, her emotional tone is unstable, and she is irritable and
restless. She tends to become hard-headed and persistent.
She has higher sensitivity and her 'self-world' is damaged.

"Dr. Pajarillo said that an abnormal family background relates to

an individual's illness, such as the deprivation of the continuous
care and love of the parents. As to the batterer, he normally
'internalizes what is around him within the environment.' And it
becomes his own personality. He is very competitive; he is
aiming high all the time; he is so macho; he shows his strong
façade 'but in it there are doubts in himself and prone to act
without thinking.'

xxx   xxx   xxx

"Dr. Pajarillo emphasized that 'even though without the

presence of the precipator (sic) or the one who administered
the battering, that re-experiencing of the trauma occurred (sic)
because the individual cannot control it. It will just come up in
her mind or in his mind.'

xxx   xxx   xxx

"Dr. Pajarillo said that a woman suffering post traumatic stress

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

xxx   xxx   xxx

"Dr. Pajarillo testified that he met Marivic Genosa in his office in

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

xxx   xxx   xxx

"On cross-examination by the private prosecutor, Dr. Pajarillo

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

xxx   xxx   xxx

"20. No rebuttal evidence or testimony was presented by either

the private or the public prosecutor. Thus, in accord with the
Resolution of this Honorable Court, the records of the partially
re-opened trial a quo were elevated."9

Ruling of the Trial Court

Finding the proffered theory of self-defense untenable, the RTC gave

credence to the prosecution evidence that appellant had killed the
deceased while he was in bed sleeping. Further, the trial court appreciated
the generic aggravating circumstance of treachery, because Ben Genosa
was supposedly defenseless when he was killed -- lying in bed asleep
when Marivic smashed him with a pipe at the back of his head.

The capital penalty having been imposed, the case was elevated to this
Court for automatic review.

Supervening Circumstances

On February 19, 2000, appellant filed an Urgent Omnibus Motion praying

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

On September 29, 2000, this Court issued a Resolution granting in part

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

Acting on the Court's Resolution, the trial judge authorized the examination
of Marivic by two clinical psychologists, Drs. Natividad Dayan 10 and Alfredo
Pajarillo,11 supposedly experts on domestic violence. Their testimonies,
along with their documentary evidence, were then presented to and
admitted by the lower court before finally being submitted to this Court to
form part of the records of the case.12

The Issues

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

"1. The trial court gravely erred in promulgating an obviously

hasty decision without reflecting on the evidence adduced as to
self-defense.

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

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

"4. The trial court gravely erred in ignoring and disregarding

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

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

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

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

"8. The trial court gravely erred in refusing to re-evaluate the

traditional elements in determining the existence of self-defense
and defense of foetus in this case, thereby erroneously
convicting Marivic Genosa of the crime of parricide and
condemning her to the ultimate penalty of death." 13

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

The Court's Ruling

The appeal is partly meritorious.

Collateral Factual Issues

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

In appellant's first six assigned items, we find no grave abuse of discretion,

reversible error or misappreciation of material facts that would reverse or
modify the trial court's disposition of the case. In any event, we will now
briefly dispose of these alleged errors of the trial court.

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

Neither do we find the appealed Decision to have been made in an

"obviously hasty" manner. The Information had been filed with the lower
court on November 14, 1996. Thereafter, trial began and at least 13
hearings were held for over a year. It took the trial judge about two months
from the conclusion of trial to promulgate his judgment. That he conducted
the trial and resolved the case with dispatch should not be taken against
him, much less used to condemn him for being unduly hasty. If at all, the
dispatch with which he handled the case should be lauded. In any case, we
find his actions in substantial compliance with his constitutional obligation. 15

Second, the lower court did not err in finding as a fact that Ben Genosa and
appellant had been legally married, despite the non-presentation of their
marriage contract. In People v. Malabago,16 this Court held:

"The key element in parricide is the relationship of the offender

with the victim. In the case of parricide of a spouse, the best
proof of the relationship between the accused and the
deceased is the marriage certificate. In the absence of a
marriage certificate, however, oral evidence of the fact of
marriage may be considered by the trial court if such proof is
not objected to."

Two of the prosecution witnesses -- namely, the mother and the brother of
appellant's deceased spouse -- attested in court that Ben had been married
to Marivic.17 The defense raised no objection to these testimonies.
Moreover, during her direct examination, appellant herself made a judicial
admission of her marriage to Ben.18 Axiomatic is the rule that a judicial
admission is conclusive upon the party making it, except only when there is
a showing that (1) the admission was made through a palpable mistake, or
(2) no admission was in fact made.19 Other than merely attacking the non-
presentation of the marriage contract, the defense offered no proof that the
admission made by appellant in court as to the fact of her marriage to the
deceased was made through a palpable mistake.

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

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

Fifth, the trial court surely committed no error in not requiring testimony
from appellant's children. As correctly elucidated by the solicitor general, all
criminal actions are prosecuted under the direction and control of the public
prosecutor, in whom lies the discretion to determine which witnesses and
evidence are necessary to present.20 As the former further points out,
neither the trial court nor the prosecution prevented appellant from
presenting her children as witnesses. Thus, she cannot now fault the lower
court for not requiring them to testify.

Finally, merely collateral or corroborative is the matter of whether the flight

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

First Legal Issue:

Self-Defense and Defense of a Fetus

Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes
self-defense and/or defense of her unborn child. When the accused admits
killing the victim, it is incumbent upon her to prove any claimed justifying
circumstance by clear and convincing evidence.21 Well-settled is the rule
that in criminal cases, self-defense (and similarly, defense of a stranger or
third person) shifts the burden of proof from the prosecution to the
defense.22

The Battered Woman Syndrome

In claiming self-defense, appellant raises the novel theory of the battered

woman syndrome. While new in Philippine jurisprudence, the concept has
been recognized in foreign jurisdictions as a form of self-defense or, at the
least, incomplete self-defense.23 By appreciating evidence that a victim or
defendant is afflicted with the syndrome, foreign courts convey their
"understanding of the justifiably fearful state of mind of a person who has
been cyclically abused and controlled over a period of time." 24

A battered woman has been defined as a woman "who is repeatedly

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

Battered women exhibit common personality traits, such as low self-

esteem, traditional beliefs about the home, the family and the female sex
role; emotional dependence upon the dominant male; the tendency to
accept responsibility for the batterer's actions; and false hopes that the
relationship will improve.26
More graphically, the battered woman syndrome is characterized by the so-
called "cycle of violence,"27 which has three phases: (1) the tension-building
phase; (2) the acute battering incident; and (3) the tranquil, loving (or, at
least, nonviolent) phase.28

During the tension-building phase, minor battering occurs -- it could be

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

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

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

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

At this stage, she has a sense of detachment from the attack and the
terrible pain, although she may later clearly remember every detail. Her
apparent passivity in the face of acute violence may be rationalized thus:
the batterer is almost always much stronger physically, and she knows
from her past painful experience that it is futile to fight back. Acute battering
incidents are often very savage and out of control, such that innocent
bystanders or intervenors are likely to get hurt. 30
The final phase of the cycle of violence begins when the acute battering
incident ends. During this tranquil period, the couple experience profound
relief. On the one hand, the batterer may show a tender and nurturing
behavior towards his partner. He knows that he has been viciously cruel
and tries to make up for it, begging for her forgiveness and promising never
to beat her again. On the other hand, the battered woman also tries to
convince herself that the battery will never happen again; that her partner
will change for the better; and that this "good, gentle and caring man" is the
real person whom she loves.

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

The illusion of absolute interdependency is well-entrenched in a battered

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

History of Abuse
in the Present Case

To show the history of violence inflicted upon appellant, the defense

presented several witnesses. She herself described her heart-rending
experience as follows:

"ATTY. TABUCANON

Q How did you describe your marriage with Ben Genosa?

A In the first year, I lived with him happily but in the subsequent
year he was cruel to me and a behavior of habitual drinker.
Q You said that in the subsequent year of your marriage, your
husband was abusive to you and cruel. In what way was this
abusive and cruelty manifested to you?

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

sometimes he pinned me down on the bed and sometimes beat
me.

Q How many times did this happen?

A Several times already.

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

A I went away to my mother and I ran to my father and we

separate each other.

Q What was the action of Ben Genosa towards you leaving

home?

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

Q What will happen when he follow you?

A He said he changed, he asked for forgiveness and I was

convinced and after that I go to him and he said 'sorry'.

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

A Yes, sir.

Q Who are these doctors?

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

xxx   xxx   xxx

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

 A Yes, sir.

Q Who inflicted these injuries?

A Of course my husband.

Q You mean Ben Genosa?

A Yes, sir.

xxx   xxx   xxx

[Court] /to the witness

Q How frequent was the alleged cruelty that you said?

A Everytime he got drunk.

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

A Everytime he got drunk.

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

in a week?

A Three times a week.

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

A Not necessarily that he would beat me but sometimes he will

just quarrel me." 32

Referring to his "Out-Patient Chart"33 on Marivic Genosa at the Philphos

Hospital, Dr. Dino D. Caing bolstered her foregoing testimony on chronic
battery in this manner:

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

A Yes, sir.
Q Who prepared the list of six (6) incidents, Doctor?

A I did.

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

A 1. May 12, 1990 - physical findings are as follows: Hematoma

(R) lower eyelid and redness of eye. Attending physician: Dr.
Lucero;

2. March 10, 1992 - Contusion-Hematoma (L) lower

arbital area, pain and contusion (R) breast. Attending
physician: Dr. Canora;

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

4. August 1, 1994 - Pain, mastitis (L) breast, 2 o to trauma.

Attending physician: Dr. Caing;

5. April 17, 1995 - Trauma, tenderness (R) Shoulder.

Attending physician: Dr. Canora; and

6. June 5, 1995 - Swelling Abrasion (L) leg, multiple

contusion Pregnancy. Attending physician: Dr. Canora.

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

A Yes, sir.

Q Did you actually physical examine the accused?

A Yes, sir.

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

A Abrasion is a skin wound usually when it comes in contact

with something rough substance if force is applied.
Q What is meant by furuncle axilla?

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

Q What is meant by pain mastitis secondary to trauma?

A So, in this 4th episode of physical injuries there is an

inflammation of left breast. So, [pain] meaning there is
tenderness. When your breast is traumatized, there is
tenderness pain.

Q So, these are objective physical injuries. Doctor?

xxx   xxx   xxx

Q Were you able to talk with the patient?

A Yes, sir.

Q What did she tell you?

A As a doctor-patient relationship, we need to know the cause

of these injuries. And she told me that it was done to her by her
husband.

Q You mean, Ben Genosa?

A Yes, sir.

xxx   xxx   xxx

ATTY. TABUCANON:

Q By the way Doctor, were you able to physical examine the

accused sometime in the month of November, 1995 when this
incident happened?

A As per record, yes.

Q What was the date?

A It was on November 6, 1995.

Q So, did you actually see the accused physically?

A Yes, sir.

Q On November 6, 1995, will you please tell this Honorable

Court, was the patient pregnant?

A Yes, sir.

Q Being a doctor, can you more engage at what stage of

pregnancy was she?

A Eight (8) months pregnant.

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

A Yes, sir.

Q What was your November 6, 1995 examination, was it an

examination about her pregnancy or for some other findings?

A No, she was admitted for hypertension headache which

complicates her pregnancy.

Q When you said admitted, meaning she was confined?

A Yes, sir.

Q For how many days?

A One day.

Q Where?

A At PHILPHOS Hospital.

xxx   xxx   xxx

Q Lets go back to the clinical history of Marivic Genosa. You

said that you were able to examine her personally on
November 6, 1995 and she was 8 months pregnant.
What is this all about?

A Because she has this problem of tension headache

secondary to hypertension and I think I have a record here, also
the same period from 1989 to 1995, she had a consultation for
twenty-three (23) times.

Q For what?

A Tension headache.

Q Can we say that specially during the latter consultation, that

the patient had hypertension?

A The patient definitely had hypertension. It was refractory to

our treatment. She does not response when the medication
was given to her, because tension headache is more or less
stress related and emotional in nature.

Q What did you deduce of tension headache when you said is

emotional in nature?

A From what I deduced as part of our physical examination of

the patient is the family history in line of giving the root cause of
what is causing this disease. So, from the moment you ask to
the patient all comes from the domestic problem.

Q You mean problem in her household?

A Probably.

Q Can family trouble cause elevation of blood pressure,

Doctor?

A Yes, if it is emotionally related and stressful it can cause

increases in hypertension which is unfortunately does not
response to the medication.

Q In November 6, 1995, the date of the incident, did you take

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

Q Is this considered hypertension?

A Yes, sir, severe.

Q Considering that she was 8 months pregnant, you mean this

is dangerous level of blood pressure?

A It was dangerous to the child or to the fetus." 34

Another defense witness, Teodoro Sarabia, a former neighbor of the

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

Ecel Arano also testified36 that for a number of times she had been asked
by Marivic to sleep at the Genosa house, because the latter feared that
Ben would come home drunk and hurt her. On one occasion that Ecel did
sleep over, she was awakened about ten o'clock at night, because the
couple "were very noisy … and I heard something was broken like a vase."
Then Marivic came running into Ecel's room and locked the door. Ben
showed up by the window grill atop a chair, scaring them with a knife.

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

On that same night that culminated in the death of Ben Genosa, at least
three other witnesses saw or heard the couple quarreling. 37 Marivic relates
in detail the following backdrop of the fateful night when life was snuffed out
of him, showing in the process a vivid picture of his cruelty towards her:

"ATTY. TABUCANON:

Q Please tell this Court, can you recall the incident in

November 15, 1995 in the evening?
A Whole morning and in the afternoon, I was in the office
working then after office hours, I boarded the service bus and
went to Bilwang. When I reached Bilwang, I immediately asked
my son, where was his father, then my second child said, 'he
was not home yet'. I was worried because that was payday, I
was anticipating that he was gambling. So while waiting for him,
my eldest son arrived from school, I prepared dinner for my
children.

Q This is evening of November 15, 1995?

A Yes, sir.

Q What time did Ben Genosa arrive?

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

him.

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

A Yes, sir.

Q Did you come back to your house?

A Yes, sir.

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

time?

A Bilwang.

Q Is this your house or you are renting?

A Renting.

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

Bilwang?

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

Q What happened when you arrived in your residence?

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

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

with you?

A Ecel Araño, the one who testified.

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

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

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

A Yes, 8 months.

Q How advance was your pregnancy?

A Eight (8) months.

Q Was the baby subsequently born?

A Yes, sir.

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

A Marie Bianca.

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

A Yes, sir.

Q What time?

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

behavior.
Q Will you tell this Court what was his disposition?

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

behavior.

Q What was he yelling all about?

A His usual attitude when he got drunk.

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

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

quarrel him.

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

know?

A He was angry at me because I was following x x x him,

looking for him. I was just worried he might be overly drunk and
he would beat me again.

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

you if any?

A He was nagging at me at that time and I just ignore him

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

Q What did he do with the bolo?

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

Q What else happened after he cut the wire?

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

Q How do you described this bolo?

A 1 1/2 feet.

Q What was the bolo used for usually?

A For chopping meat.

Q You said the children were scared, what else happened as

Ben was carrying that bolo?

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

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

A When I attempt to run he held my hands and he whirled me

and I fell to the bedside.

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

A I screamed for help and then he left.

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

A Yes, sir.

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

was going?

A Outside perhaps to drink more.

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

A I packed all his clothes.

Q What was your reason in packing his clothes?

A I wanted him to leave us.

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

A After a couple of hours, he went back again and he got angry

with me for packing his clothes, then he dragged me again of
the bedroom holding my neck.

Q You said that when Ben came back to your house, he

dragged you? How did he drag you?

COURT INTERPRETER:

The witness demonstrated to the Court by using her right

hand flexed forcibly in her front neck)

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and

then he kept on shouting at me that 'you might as well be killed
so there will be nobody to nag me.'

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

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER:

(At this juncture the witness started crying).

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.
Q What happened when you were brought to that drawer?

A He dragged me towards the drawer and he was about to

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

COURT INTERPRETER:

(The witness at this juncture is crying intensely).

xxx   xxx   xxx

ATTY. TABUCANON:

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

A Outside.

Q In what part of the house?

A Dining.

Q Where were the children during that time?

A My children were already asleep.

Q You mean they were inside the room?

A Yes, sir.

Q You said that he dropped the blade, for the record will you
please describe this blade about 3 inches long, how does it look
like?
 A Three (3) inches long and 1/2 inch wide.

Q Is it a flexible blade?

A It's a cutter.

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

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

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

In addition, Dra. Natividad Dayan was called by the RTC to testify as an

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

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

A: What I remember happened then was it was more than ten

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

In cross-examining Dra. Dayan, the public prosecutor not merely elicited,

but wittingly or unwittingly put forward, additional supporting evidence as
shown below:

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

A The most relevant information was the tragedy that

happened. The most important information were escalating
abuses that she had experienced during her marital life.

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

A I believe I had an idea of the case, but I do not know whether

I can consider them as substantial.

xxx   xxx   xxx

Q Did you gather an information from Marivic that on the side of

her husband they were fond of battering their wives?

A I also heard that from her?

Q You heard that from her?

A Yes, sir.

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

A What I remember that there were brothers of her husband

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

A She told me about that.

Q Did she inform you in what hotel in Ormoc?

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

Q Several times in that room?

A Yes, sir. What I remember was that there is no problem about

being battered, it really happened.

Q Being an expert witness, our jurisprudence is not complete

on saying this matter. I think that is the first time that we have
this in the Philippines, what is your opinion?

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

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

battered?

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

Parenthetically, the credibility of appellant was demonstrated as follows:

"Q And you also said that you administered [the] objective
personality test, what x x x [is this] all about?
 A The objective personality test is the Millon Clinical Multiaxial
Inventory. The purpose of that test is to find out about the lying
prone[ne]ss of the person.

Q What do you mean by that?

A Meaning, am I dealing with a client who is telling me the truth,

or is she someone who can exaggerate or x x x [will] tell a lie[?]

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

personality test?

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

The other expert witness presented by the defense, Dr. Alfredo Pajarillo,
testified on his Psychiatric Report,42 which was based on his interview and
examination of Marivic Genosa. The Report said that during the first three
years of her marriage to Ben, everything looked good -- the atmosphere
was fine, normal and happy -- until "Ben started to be attracted to other
girls and was also enticed in[to] gambling[,] especially cockfighting. x x x. At
the same time Ben was often joining his barkada in drinking sprees."

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

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

Effect of Battery on Appellant

Because of the recurring cycles of violence experienced by the abused

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

To understand the syndrome properly, however, one's viewpoint should not

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

The theory of BWS formulated by Lenore Walker, as well as her research

on domestic violence, has had a significant impact in the United States and
the United Kingdom on the treatment and prosecution of cases, in which a
battered woman is charged with the killing of her violent partner. The
psychologist explains that the cyclical nature of the violence inflicted upon
the battered woman immobilizes the latter's "ability to act decisively in her
own interests, making her feel trapped in the relationship with no means of
escape."46 In her years of research, Dr. Walker found that "the abuse often
escalates at the point of separation and battered women are in greater
danger of dying then."47

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

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

The testimony of another expert witness, Dr. Pajarillo, is also helpful. He

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

Dr. Pajarillo explained that "overwhelming brutality, trauma" could result in

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

A study53 conducted by Martin Seligman, a psychologist at the University of

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

Thus, just as the battered woman believes that she is somehow

responsible for the violent behavior of her partner, she also believes that he
is capable of killing her, and that there is no escape. 55 Battered women feel
unsafe, suffer from pervasive anxiety, and usually fail to leave the
relationship.56 Unless a shelter is available, she stays with her husband, not
only because she typically lacks a means of self-support, but also because
she fears that if she leaves she would be found and hurt even more. 57

In the instant case, we meticulously scoured the records for specific

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

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

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

Neither did appellant proffer sufficient evidence in regard to the third phase
of the cycle. She simply mentioned that she would usually run away to her
mother's or father's house;58 that Ben would seek her out, ask for her
forgiveness and promise to change; and that believing his words, she
would return to their common abode.
Did she ever feel that she provoked the violent incidents between her and
her spouse? Did she believe that she was the only hope for Ben to reform?
And that she was the sole support of his emotional stability and well-being?
Conversely, how dependent was she on him? Did she feel helpless and
trapped in their relationship? Did both of them regard death as preferable to
separation?

In sum, the defense failed to elicit from appellant herself her factual

experiences and thoughts that would clearly and fully demonstrate the
essential characteristics of the syndrome.

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

We emphasize that in criminal cases, all the elements of a modifying

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

BWS as Self-Defense

In any event, the existence of the syndrome in a relationship does not in

itself establish the legal right of the woman to kill her abusive partner.
Evidence must still be considered in the context of self-defense. 59

From the expert opinions discussed earlier, the Court reckons further that
crucial to the BWS defense is the state of mind of the battered woman at
the time of the offense60 -- she must have actually feared imminent harm
from her batterer and honestly believed in the need to kill him in order to
save her life.

Settled in our jurisprudence, however, is the rule that the one who resorts
to self-defense must face a real threat on one's life; and the peril sought to
be avoided must be imminent and actual, not merely imaginary.61 Thus, the
Revised Penal Code provides the following requisites and effect of self-
defense:62

"Art. 11. Justifying circumstances. -- The following do not incur

any criminal liability:

"1. Anyone who acts in defense of his person or rights, provided

that the following circumstances concur;

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to

prevent or repel it;

Third. Lack of sufficient provocation on the part of the person

defending himself."

Unlawful aggression is the most essential element of self-defense. 63 It

presupposes actual, sudden and unexpected attack -- or an imminent
danger thereof -- on the life or safety of a person. 64 In the present case,
however, according to the testimony of Marivic herself, there was a
sufficient time interval between the unlawful aggression of Ben and her
fatal attack upon him. She had already been able to withdraw from his
violent behavior and escape to their children's bedroom. During that time,
he apparently ceased his attack and went to bed. The reality or even the
imminence of the danger he posed had ended altogether. He was no
longer in a position that presented an actual threat on her life or safety.

Had Ben still been awaiting Marivic when she came out of their children's
bedroom -- and based on past violent incidents, there was a great
probability that he would still have pursued her and inflicted graver harm --
then, the imminence of the real threat upon her life would not have ceased
yet. Where the brutalized person is already suffering from BWS, further
evidence of actual physical assault at the time of the killing is not required.
Incidents of domestic battery usually have a predictable pattern. To require
the battered person to await an obvious, deadly attack before she can
defend her life "would amount to sentencing her to 'murder by
installment.'"65 Still, impending danger (based on the conduct of the victim
in previous battering episodes) prior to the defendant's use of deadly force
must be shown. Threatening behavior or communication can satisfy the
required imminence of danger.66Considering such circumstances and the
existence of BWS, self-defense may be appreciated.

We reiterate the principle that aggression, if not continuous, does not

warrant self-defense.67 In the absence of such aggression, there can be no
self-defense -- complete or incomplete -- on the part of the victim. 68 Thus,
Marivic's killing of Ben was not completely justified under the
circumstances.

Mitigating Circumstances Present

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

From several psychological tests she had administered to Marivic, Dra.

Dayan, in her Psychological Evaluation Report dated November 29, 2000,
opined as follows:

"This is a classic case of a Battered Woman Syndrome. The

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

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

"Q What causes the trauma, Mr. Witness?

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

xxx   xxx   xxx

Q You referred a while ago to severity. What are the

qualifications in terms of severity of the postraumatic stress
disorder, Dr. Pajarillo?

A The severity is the most severe continuously to trig[g]er this

post[t]raumatic stress disorder is injury to the head, banging of
the head like that. It is usually the very very severe stimulus
that precipitate this post[t]raumatic stress disorder. Others are
suffocating the victim like holding a pillow on the face,
strangulating the individual, suffocating the individual, and
boxing the individual. In this situation therefore, the victim is
heightened to painful stimulus, like for example she is pregnant,
she is very susceptible because the woman will not only protect
herself, she is also to protect the fetus. So the anxiety is
heightened to the end [sic] degree.

Q But in terms of the gravity of the disorder, Mr. Witness, how

do you classify?

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

[a]typical.

Q Can you please describe this pre[-]classification you called

delayed or [atypical]?

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

A The chronic cases is this repetitious battering, repetitious

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

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

"Q But just the same[,] neurosis especially on battered woman

syndrome x x x affects x x x his or her mental capacity?

A Yes, your Honor.

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

A Of course obfuscated."73

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

Based on the explanations of the expert witnesses, such manifestations

were analogous to an illness that diminished the exercise by appellant of
her will power without, however, depriving her of consciousness of her
acts.There was, thus, a resulting diminution of her freedom of action,
intelligence or intent. Pursuant to paragraphs 9 74and 1075 of Article 13 of the
Revised Penal Code, this circumstance should be taken in her favor and
considered as a mitigating factor. 76

In addition, we also find in favor of appellant the extenuating circumstance

of having acted upon an impulse so powerful as to have naturally produced
passion and obfuscation. It has been held that this state of mind is present
when a crime is committed as a result of an uncontrollable burst of passion
provoked by prior unjust or improper acts or by a legitimate stimulus so
powerful as to overcome reason.77 To appreciate this circumstance, the
following requisites should concur: (1) there is an act, both unlawful and
sufficient to produce such a condition of mind; and (2) this act is not far
removed from the commission of the crime by a considerable length of
time, during which the accused might recover her normal equanimity. 78

Here, an acute battering incident, wherein Ben Genosa was the unlawful
aggressor, preceded his being killed by Marivic. He had further threatened
to kill her while dragging her by the neck towards a cabinet in which he had
kept a gun. It should also be recalled that she was eight months pregnant
at the time. The attempt on her life was likewise on that of her fetus. 79 His
abusive and violent acts, an aggression which was directed at the lives of
both Marivic and her unborn child, naturally produced passion and
obfuscation overcoming her reason. Even though she was able to retreat to
a separate room, her emotional and mental state continued. According to
her, she felt her blood pressure rise; she was filled with feelings of self-pity
and of fear that she and her baby were about to die. In a fit of indignation,
she pried open the cabinet drawer where Ben kept a gun, then she took the
weapon and used it to shoot him.

The confluence of these events brings us to the conclusion that there was
no considerable period of time within which Marivic could have recovered
her normal equanimity. Helpful is Dr. Pajarillo's testimony 80 that with
"neurotic anxiety" -- a psychological effect on a victim of "overwhelming
brutality [or] trauma" -- the victim relives the beating or trauma as if it were
real, although she is not actually being beaten at the time. She cannot
control "re-experiencing the whole thing, the most vicious and the trauma
that she suffered." She thinks "of nothing but the suffering." Such reliving
which is beyond the control of a person under similar circumstances, must
have been what Marivic experienced during the brief time interval and
prevented her from recovering her normal equanimity. Accordingly, she
should further be credited with the mitigating circumstance of passion and
obfuscation.

It should be clarified that these two circumstances -- psychological

paralysis as well as passion and obfuscation -- did not arise from the same
set of facts.
On the one hand, the first circumstance arose from the cyclical nature and
the severity of the battery inflicted by the batterer-spouse upon appellant.
That is, the repeated beatings over a period of time resulted in her
psychological paralysis, which was analogous to an illness diminishing the
exercise of her will power without depriving her of consciousness of her
acts.

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

Second Legal Issue:

Treachery

There is treachery when one commits any of the crimes against persons by
employing means, methods or forms in the execution thereof without risk to
oneself arising from the defense that the offended party might make. 81 In
order to qualify an act as treacherous, the circumstances invoked must be
proven as indubitably as the killing itself; they cannot be deduced from
mere inferences, or conjectures, which have no place in the appreciation of
evidence.82Because of the gravity of the resulting offense, treachery must
be proved as conclusively as the killing itself.83

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

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

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

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and

then he kept on shouting at me that 'you might as well be killed
so there will be nobody to nag me'

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

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER

(At this juncture the witness started crying)

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

A He dragged me towards the drawer and he was about to

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

COURT INTERPRETER

(The witness at this juncture is crying intensely).

xxx   xxx   xxx

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

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

Q It is a flexible blade?

A It's a cutter.

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

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

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

xxx   xxx   xxx

ATTY. TABUCANON:

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

A Yes, because I smashed him.

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

Q What else happened?

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

COURT INTERPRETER:

(Upon the answer of the witness getting the pipe and

smashed him, the witness at the same time pointed at the
back of her neck or the nape).

ATTY. TABUCANON:

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

A Considering all the physical sufferings that I've been through

with him, I took pity on myself and I felt I was about to die also
because of my blood pressure and the baby, so I got that gun
and I shot him.

COURT

/to Atty. Tabucanon

Q You shot him?

A Yes, I distorted the drawer."84

The above testimony is insufficient to establish the presence of treachery.

There is no showing of the victim's position relative to appellant's at the
time of the shooting. Besides, equally axiomatic is the rule that when a
killing is preceded by an argument or a quarrel, treachery cannot be
appreciated as a qualifying circumstance, because the deceased may be
said to have been forewarned and to have anticipated aggression from the
assailant.85
Moreover, in order to appreciate alevosia, the method of assault adopted
by the aggressor must have been consciously and deliberately chosen for
the specific purpose of accomplishing the unlawful act without risk from any
defense that might be put up by the party attacked. 86 There is no showing,
though, that the present appellant intentionally chose a specific means of
successfully attacking her husband without any risk to herself from any
retaliatory act that he might make. To the contrary, it appears that the
thought of using the gun occurred to her only at about the same moment
when she decided to kill her batterer-spouse. In the absence of any
convincing proof that she consciously and deliberately employed the
method by which she committed the crime in order to ensure its execution,
this Court resolves the doubt in her favor.87

Proper Penalty

The penalty for parricide imposed by Article 246 of the Revised Penal Code
is reclusion perpetua to death. Since two mitigating circumstances and no
aggravating circumstance have been found to have attended the
commission of the offense, the penalty shall be lowered by one (1) degree,
pursuant to Article 64 of paragraph 588 of the same Code.89 The penalty
of reclusion temporal in its medium period is imposable, considering that
two mitigating circumstances are to be taken into account in reducing the
penalty by one degree, and no other modifying circumstances were shown
to have attended the commission of the offense. 90 Under the Indeterminate
Sentence Law, the minimum of the penalty shall be within the range of that
which is next lower in degree -- prision mayor -- and the maximum shall be
within the range of the medium period of reclusion temporal.

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

Epilogue

Being a novel concept in our jurisprudence, the battered woman syndrome

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

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

The Court, however, is not discounting the possibility of self-defense arising

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

WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is

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

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

SO ORDERED.

Puno, Carpio, Corona, Carpio-Morales, Callejo, Sr., Azcuna and Tinga,

JJ., concur.
Davide, Jr., C.J., Sandoval-Gutierrez, and Austria-Martinez, JJ., join Justice
Santiago in her dissent.
Vitug and Quisumbing JJ., in the result.
Ynares-Santiago J., see dissenting opinion.

DISSENTING OPINION

YNARES-SANTIAGO, J.:

In convicting Marivic Genosa of the crime of parricide, our esteemed

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

The novel theory of "Battered Woman Syndrome" is recognized in foreign

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

As exhaustively discussed in the ponencia, the "Battered Woman

Syndrome" has three phases, to wit: (1) the tension-building phase, where
minor batterings in the form of verbal or slight physical abuse occurs. Here,
the woman tries to pacify the batterer through a show of kind, nurturing
behavior; or by simply staying out of his way; (2) the acute battering
incident phase which is characterized by brutality, destructiveness and
sometimes, death. The battered woman usually realizes that she cannot
reason with him and that resistance would only exacerbate her condition;
and (3) the tranquil period, where the couple experience a compound relief
and the batterer may show a tender and nurturing behavior towards his
partner.

Contrary to the findings in the ponencia, the defense was able to establish

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

Appellant was able to perfectly describe the tension-building phase of the

cycle immediately prior to the death of her husband, i.e., when she knew or
felt that she was going to be killed by the deceased. She could not possibly
have testified with clarity as to prior tension-building phases in the cycle as
she had never tried to kill her husband before this time.

It was shown by the testimonies of appellant and even witnesses for the
prosecution that appellant would seek shelter in her mother's or her father's
house after an acute battering incident, after which would begin the
process of begging for forgiveness, promises of change in behavior and
return to the conjugal home, only for the same cycle to begin all over again.
To require appellant to prove the state of mind of the deceased, as seems
to be required in the ponencia, would mean that no person would ever be
able to prove self-defense in a battered woman case. Appellant could not
possibly prove whether the deceased felt provoked into battering by any act
or omission of appellant. She cannot possibly prove that she felt herself to
be the sole support of the deceased's emotional stability and well-being.
Nevertheless, appellant felt trapped and helpless in the relationship as, in
the end, she resorted to killing her husband as no one could or did help
her, whether out of fear or insensitivity, during the violent marriage she
endured.

The "acute battering incident stage" was well demonstrated by the severe
beatings suffered by Marivic in the hands of the deceased as well as the
threats to kill her using a bolo or a cutter.2 The physical abuses occurred at
least 3 times a week in the 11 miserable years of their marriage, 3 six
incidents of which were documented by the 1990-1995 medical records of
Marivic. They included, among others, hematoma, contusion, and pain on
the breasts; multiple contusions and trauma on the different parts of her
body even during her pregnancy in 1995.4 The tranquil period underwent by
Marivic was shown by the repeated "kiss and make-up" episodes of their
relationship. On more than 5 occasions, Marivic ran to her parents' house
after violent fights with the deceased only to forgive the latter every time he
would fetch her and promise to change.5

All these recurring phases of cycle of violence, repentance and forgiveness

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

ATTY. TABUCANON

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

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

 xxx       xxx       xxx

Q What happened when you were brought to the drawer?

A He dragged me towards the drawer and he was about to

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

xxx       xxx       xxx6

Q What else happened?

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

xxx       xxx       xxx

A Considering all the physical sufferings that I've been through

him, I took pity on myself and I felt I was about to die also
because of my blood pressure and the baby, so I got the gun
and shot him.7

It must be stressed that the defense of "Battered Woman Syndrome" was

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

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

Furthermore, Dr. Natividad A. Dayan, a clinical psychologist and an expert

on BWS who examined Marivic, assessed the effects of the repeated
violence on the latter as follows:

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

xxx       xxx       xxx

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

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

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

xxx       xxx       xxx

PROS. TRUYA

Q Mrs. Witness, being an expert witness, giving more the facts

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

A Yes, sir.

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

A Yes, sir this is not an ordinary self-defense, but this [is] a

need to survive, a need to survive with her two sons and [the]
child she's bringing.

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

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

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

The ponente further refused to sustain the self-defense proffered by Marivic

because there was allegedly no aggression or danger posed on her life by
the victim at the time she attacked the latter. Again, I beg to disagree.

Traditionally, in order that self-defense may be appreciated, the unlawful

aggression or the attack must be imminent and actually in existence. This
interpretation must, however, be re-evaluated vis-a-vis the recognized
inherent characteristic of the psyche of a person afflicted with the "Battered
Woman Syndrome." As previously discussed, women afflicted by this
syndrome live in constant fear for their life and thus respond in self-
defense. Once BWS and an impending danger based on the conduct of the
deceased in previous battering episodes are established, actual occurrence
of an assault is no longer a condition sine qua non before self defense may
be upheld. Threatening behavior or communication can satisfy the required
imminence of danger. As stated in the ponencia, to require the battered
person to await an obvious deadly attack before she can defend her life
would amount to sentencing her to murder by installment.

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

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

xxx       xxx       xxx

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

behavior.

xxx       xxx       xxx

A He was nagging ... me at that time and I just ignore[d] him

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

xxx       xxx       xxx

A He switch[ed] off the light and the children were shouting

because they were scared and he was already holding a bolo.

Q How do you describe this bolo?

A 1 1/2 feet.

xxx       xxx       xxx

Q You said the children were scared, what else happened as

Ben was carrying that bolo?

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

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

A When I attempted] to run he held my hands and he whirled

me and I fell [on] the bedside.11

xxx       xxx       xxx

COURT

To the witness

xxx       xxx       xxx

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

A Bolo.

Q Were you wounded or were there inflictions on your body

when he was holding and trying to frighten you [with] that bolo?

A No, only here.

COURT INTERPRETER

(The witness pointed to her wrist).

COURT

To the witness

Q You were demonstrating a motion, whirling, did your husband

really whirl you?

A Yes, your Honor.

Q How did he whirl you?

A Whirled around.

Q Just like spinning.

xxx       xxx       xxx

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

outside?

A In our bedroom.

Q Then after the whirling what happened?

A He kicked my ass and then I screamed.12

xxx       xxx       xxx

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

was going?

A Outside perhaps to drink more.

Q When he left what did you do...?

A I packed all his clothes.

Q What was your reason in packing his clothes?

A I wanted him to leave us.13

A I was frightened that my husband would hurt me, so I packed

all his things then on the following day I will leave, I was afraid
and I want to make sure I would deliver my baby safely. 14

xxx       xxx       xxx

A After a couple of hours, he went back again and got angry

with me for packing his clothes, then he dragged me again
outside of the bedroom holding my neck.

ATTY. TABUCANON

Q You said that when Ben came back to your house, he

dragged you? How did he drag... you?

COURT INTERPRETER

(The witness demonstrated to the Court by using her right

hand flexed forcibly in her front neck)

A And he dragged me towards the door backwards.

ATTY. TABUCANON

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and

then he kept shouting at me that "you might as well be killed so
there will be nobody to nag me.

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

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

xxx       xxx       xxx

Q What happened when you were brought to the drawer?

A He dragged me towards the drawer and he was about to

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

xxx       xxx       xxx

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

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

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

Q Is it a flexible blade?

A It's a cutter.

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

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

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

RE-DIRECT BY ATTY. TABUCANON

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

A Yes, sir.

Q And the whirling happened in the first incident?

A Yes, sir.

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

happened on the second incident (sic)?

A Ye, sir.

xxx       xxx       xxx

COURT

To the witness

Q Why, what is that blade about?

A A cutter about 3 inches long.

Q Who used that?

A Ben.

Q He used that on you?

A He scared me on that (sic).

xxx       xxx       xxx

Q But he did not hit you with that?

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

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

Moreover, as found in the ponencia, appellant should be allowed the

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

Since accused-appellant has already admitted to the killing, it is incumbent

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

In the case at bar, appellant was allowed and did in fact present clear and
convincing evidence that she was a battered woman for 13-14 years and
that she suffered from the "Battered Woman Syndrome". Expert testimony
was presented and admitted to this effect, such that the ponente ably
discussed the causes and effects of the syndrome. To ignore the testimony
and the evidence thus presented is to make impossible the proof of mental
state. Evidence as to the mental state need not be also "beyond
reasonable doubt."
Verily, the requirement of threatening behavioral pattern of the batterer in
previous violent episodes was sufficiently satisfied in the present case.
This, juxtaposed to Marivic's affliction with BWS justified the killing of the
deceased. The danger posed or created in her mind by the latter's threats
using bladed weapons, bred a state of fear, where under the
circumstances, the natural response of the battered woman would be to
defend herself even at the cost of taking the life of the batterer.

The ponencia's acknowledgement of "Battered Woman Syndrome" as a

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

IN VIEW WHEREOF, I vote to ACQUIT Marivic Genosa.

Footnotes
1
 Penned by Judge Fortunito L. Madrona.
2
 Assailed Decision, p. 17; rollo, p. 43.
3
 Signed by Provincial Prosecutor I Rosario D. Beleta.
4
 Rollo, p. 9.
5
 Atty. Joventino Isidro. The accused was also represented later
by Atty. Gil Marvel P. Tabucanon.
6
 Records, p. 65.

 Appellee's Brief, pp. 5-13; rollo, pp. 435-443. Signed by

7

Solicitor General Alfredo L. Benipayo, Assistant Solicitor

General Karl B. Miranda, and Solicitor Ma. Ana C. Rivera.
8
 Spelled as "Basobas" in some parts of the record.
 Appellant's Brief, pp. 10-71; rollo, pp. 284-345; signed by Atty.
9

Katrina Legarda. Citations omitted.

10
 Qualifying her expertise, Dra. Dayan stated that she had been
a practising clinical psychologist for over twenty (20) years.
Currently, she is a professor at the De La Salle University. Prior
thereto, she was the head of the Psychology Department of the
Assumption College; a member of the faculty of Psychology of
the Ateneo de Manila University and St. Joseph's College; and
the counseling psychologist of the National Defense College.
She obtained her bachelor's degree in psychology from the
University of the Philippines (UP), her Master of Arts in Clinical
Counseling from Ateneo, and her Ph.D. also from UP. She is
the secretary of the International Council of Psychologists,
comprised of members from about 68 countries; and was the
past president of the Psychological Association of the
Philippines. She is a member of the Forensic Psychology
Association, the American Psychological Association, and the
ASEAN Counseling Association. She authored the book
entitled Energy Global Psychology (together with Drs. Allen Tan
and Allan Bernardo). Dra. Dayan also lectures at the Philippine
Judicial Academy, recently on the socio-demographic and
psychological profiles of families involved in domestic violence
cases. On the subject, she had conducted, for over a period of
ten years, research on the profiles of about 500 families
involved in domestic violence.
11
 Dr. Pajarillo obtained his medical degree from the University
of Santo Tomas and has been in the practice of psychiatry for
thirty-eight years. He honed his practice in psychiatry and
neurology during his stint with the Veterans Memorial Medical
Centre. Thereafter, he was called to active duty in the Armed
Forces of the Philippines and was assigned at the V. Luna
Medical Center for twenty-six years. He was a diplomate of the
Philippine Board of Psychiatry; and a fellow of the Philippine
Board of Psychiatry and the Philippine Psychiatry Association.
He was also a member of the World Association of Military
Surgeons; the Quezon City Medical Society; the Cagayan
Medical Society; and the Philippine Association of Military
Surgeons. He authored The Comparative Analysis of Nervous
Breakdown in the Philippine Military Academy from the Period
1954-1978, which was presented twice in international
congresses. He also authored "The Mental Health of the Armed
Forces of the Philippines 2000," which was likewise published
internationally and locally. On a Parke-Davis grant, he
published a medical textbook on the use of Prasepam; on an
ER Squibb grant, he was the first to use Enanthate (siquiline);
and he published the use of the drug Zopiclom in 1985-86. Prior
to his retirement from government service, he obtained the rank
of Brigadier General. (TSN, February 9, 2001, pp. 6-9; Exhibits
"F"-"F-9"-Appellant (Bio-Data of Dr. Pajarillo).

 This case was deemed submitted for resolution on April 4,

12

2003, upon receipt by this Court of appellee's Brief. Appellant's

Brief was filed on December 2, 2002.
13
 Appellant's Brief, rollo, pp. 346-347. Original in upper case.

 Caca v. Court of Appeals and People, 341 Phil. 114, July 7,

14

1997; People v. Paragua, 326 Phil. 923, May 24, 1996; People

v. Tanoy, 387 Phil. 750, May 12, 2000; People v. Magaro, 353
Phil. 862, July 2, 1998.
15
 §15 of Art. VIII of the Constitution provides:

"Sec. 15. (1) All cases or matters filed after the effectivity of this
Constitution must be decided or resolved within x x x three
months for all other lower courts.

"(2) A case or matter shall be deemed submitted for decision or

resolution upon the filing of the last pleading, brief, or
memorandum required by the Rules of Court or by the court
itself."
16
 333 Phil. 20, December 2, 1996, per Puno, J.

 TSN, September 23, 1997, pp. 11-12 & 14; TSN, November
17

12, 1997, pp. 29 & 33.

18
 TSN, August 6, 1998, pp. 7-8.
19
 People v. Sarabia, 376 Phil. 32, October 29, 1999.

 Appellee's Brief, p. 26, citing People v. De los Reyes, 229

20

SCRA 439, January 21, 1994. See also §5 of Rule 110 of the

New Rules of Criminal Procedure and People v. Vergara, 221
SCRA 560, April 28, 1993.

 People v. Rabanal, 349 SCRA 655, January 19, 2001;

21

People v. Cario, 351 Phil. 644, March 31, 1998; People v.

Baniel, 341 Phil. 471, July 15, 1997.
22
 People v. Peralta, 350 SCRA 198, January 24, 2001.

 See Ibn-Tamas v. US, 477 A.2d 626, 1979 DC App. LEXIS

23

457; McLuckie v. Abbott, 337 F.3d 1193; 2003 US App. LEXIS

15240; DePetris v. Kuykendall, 239 F.3d 1057; 2001 US App.
LEXIS 1062; State v. Kelley, 478 A.2d 364 (1984); McMaugh v.
State, 612 A.2d 725 (RI 1992); State v. Frost, 577 A.2d 1282
(NJ Super. Ct. App. Div. 1990); State v. Gallegos, 719 P.2d
1268 (NM Ct. App. 1986); R. v. Lavallee (1990) 1 SCR; Reilly v.
The Queen, (1984) 2 SCR 396.

 Symposium on Domestic Violence. Article: "Providing Legal

24

Protection for Battered Women: An Analysis of State Statutes

and Case Law," LEXSEE 21 Hofstra L. Rev. 801 (Summer
1993), 1161.

 McMaugh v. State, 612 A.2d 725, 731, quoting L. Walker, The

25

Battered Woman, at XV (1979).

 People v. Torres, 128 Misc2d, 129, 488 NYS2d 358;

26

McMaugh v. State, 612 A.2d 725.

 Walker, Lenore, The Battered Woman Syndrome (1984), pp.

27

95-96. Dr. Walker, a clinical psychologist, is an acknowledged

expert on BWS in the United States. She is a pioneer
researcher in the field. In this book, she reports the results of
her study involving 400 battered women. Her research was
designed to test empirically the theories expounded in her
earlier book, The Battered Woman (1979). In 1989, she also
wroteTerrifying Love: Why Battered Women Kill and How
Society Responds.

 Walker, Terrifying Love: Why Battered Women Kill and How

28

Society Responds (Harper Perennial, 1989), p. 42.

29
 Ibid. See also R. v. Lavallee, supra; Ibn-Tamas v. US, supra.
30
 Ibid.
31
 Ibid.
32
 TSN, August 6, 1998, pp. 12-19.
33
 Exhibits 1 & 1-A; records, p. 44.
34
 TSN, August 5, 1998, pp. 14-23, 27-31.
35
 TSN, December 16, 1997, pp. 15-17 & 20-21.
36
 TSN, May 22, 1998, pp. 2-20.

 TSN (Arturo Basobas), July 21, 1997, pp. 13, 15 & 21; TSN
37

(Jose Barrientos), December 15, 1997, pp. 17-20; TSN (Junnie

Barrientos), December 15, 1997, pp. 35-37; TSN (Ecel Arano),
May 22, 1998, pp. 10 & 20.
38
 TSN, August 6, 1998, pp. 19-32.
39
 TSN, January 15, 2001, pp. 37-38.
40
 Id., pp. 51-53.
41
 Id., p. 36.
42
 Exhibits "G"-"G-3" - Appellant.
43
 Ibid.
44
 In R. v. Lavallee, supra.
45
 Ibid.
  Fiona E. Raitt and M. Suzanne Zeedyk, The Implicit Relation
46

of Psychology and Law: Women and Syndrome Evidence, pp.

66-67 (Exh. D).
47
 Walker, Terrifying Love, p. 47.
48
 TSN, January 15, 2001, p. 18.
49
 Id., p. 20.
50
 TSN, February 9, 2001, pp. 11-13.
51
 Id., p. 14.
52
 Walker, Terrifying Love, p. 48.
53
 Id., pp. 49-50.
54
 Ibid.

 Dr. Lenore Walker's testimony before the court in Ibn-Tamas,

55

supra.

 Psychologist Nancy Kaser-Boyd testifying as an expert on the

56

battered woman syndrome in Depetris, supra.

 Dr. Lenore Walker's testimony before the court in Ibn-Tamas,

57

supra.
58
 Her biological parents lived separately.
59
 State v. Kelly, 655 P.2d 1202, 1203 (1982).
60
 "The case would rise or fall on whether . . . [appellant] acted
in actual fear of imminent harm from her husband when she
shot [or injured] him . . . ." Depetris v. Kuykendall, supra. See
also People v. Torres, 128 Misc2d 129, 488 NYS.2d 358.

 People v. PO3 Langres, 375 Phil. 240, 258, October 13,

61

1999.
  See also People v. Plazo, 350 SCRA 433, January 29,
62

2001; People v. Cario, 351 Phil. 644, March 31, 1998; People v.

Timblor, 348 Phil. 847, January 27, 1998.
63
 People v. Saul, 372 SCRA 636, December 19, 2001.

 People v. Galapin, 355 Phil. 212, July 31, 1998; People v.

64

Panes, 343 Phil. 878, August 29, 1997.

 State v. Gallegos, 104 NM 247, 719 P.2d 1268, citing Eber,

65

The Battered Wife's Dilemma: To Kill or To Be Killed, 32

Hasting LJ 895, 928 (1981).

 Id., citing State v. Walker, 40 Wash.App. 658, 700 P.2d 1168

66

(1985).
67
 People v. Saul, supra.
68
 People v. Bato, 348 SCRA 253, December 15, 2000.

 People v. Maquiling, 368 Phil. 169, June 21, 1999; People v.

69

Discalsota, GR No. 136892, April 11, 2002.

70
 Exhibits "B" et seq. - Appellant, p. 10.
71
 TSN, February 9, 2001, p. 19.
72
 Id., pp. 15-17.
73
 Id., p. 54.

 "Art. 13. Mitigating Circumstances. – The following are

74

mitigating circumstances:

xxx   xxx   xxx

"9. Such illness of the offender as would diminish the

exercise of the will-power of the offender without however
depriving him of the consciousness of his acts."

 "10. And, finally, any other circumstances of a similar nature

75

and analogous to those above mentioned."

  See People v. Javier, 370 Phil. 596, July 28, 1999; People v.
76

Amit, 82 Phil. 820, February 15, 1949; Peoplev. Francisco, 78

Phil. 694, July 16, 1947; People v. Balneg, 79 Phil. 805,
January 9, 1948.

 People v. Lobino, 375 Phil. 1065, October 28, 1999; People v.

77

Valles, 334 Phil. 763, January 28, 1997.

78
 I Reyes, The Revised Penal Code, p. 272 (1998).

 According to Dr. Lenore Walker, batterers commonly

79

"escalate their abusiveness" when their wives are pregnant.

80
 Id., pp. 17-18.
81
 People v. Cabande, 381 Phil. 889, February 8, 2000.
82
 People v. Llanes, 381 Phil. 733, February 4, 2000.

 People v. Albao, 383 Phil. 873, March 2, 2000; People v.

83

Aguilar, 354 Phil. 360, July 10, 1998.

84
 TSN, August 6, 1998, pp. 26-32.

 People v. Buluran, 382 Phil. 364, February 15, 2000;

85

People v. Ereño, 383 Phil. 30, February 22, 2000.

 People v. Cañete, 44 Phil. 478, February 5, 1923; People v.

86

Narvaez, 206 Phil. 314, April 20, 1983.

87
 People v. Aguilar, supra.
88
 "Art. 64. Rules for the application of penalties which contain
three periods.

xxx   xxx   xxx

"5. When there are two or more mitigating circumstances

and no aggravating circumstances are present, the court
shall impose the penalty next lower to that prescribed by
law, in the period that it may deem applicable, according
to the number and nature of such circumstances."
 xxx   xxx   xxx

 People v. Narvaez, 206 Phil. 314, April 20, 1983; Guevarra v.

89

Court of Appeals, 187 SCRA 484, July 16, 1990.

90
 Basan v. People, 61 SCRA 275, November 29, 1974.
91
 §5, Indeterminate Sentence Law (Act 4103, as amended).

YNARES-SANTIAGO, J.:

 People v. Genosa, G.R. No. 135981, 29 September 2000, 341

1

SCRA 493, 498.

2
 TSN, August 6, 1998, pp. 22-30; 47-49; 50-51.
3
 Id., pp. 8-13, 18.
4
 Exhibit 1, Compilation of Exhibits, p. 44.
5
 TSN, August 6, 1998, pp. 12-13; 36-37.
6
 Id., pp. 27-28.
7
 Id., pp. 31-32.
8
 TSN, August 5, 1998, pp. 21-31.
9
 TSN, January 15, 2001, pp. 38-40.
10
 Id., pp. 74-75.
11
 TSN, August 6, 1998, pp. 22-25.
12
 Id., pp. 47-49.
13
 Id., pp. 25-26.
14
 Id., p. 34.
15
 Id., pp. 26-30.
 16
 Id., pp. 50-51.
17
 G.R. No. 130654, 28 July 1999.
18
 Supra, at 581-582.

The Lawphil Project - Arellano Law Foundation

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 149275             September 27, 2004

VICKY C. TY, petitioner, 
vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

TINGA, J.:

Petitioner Vicky C. Ty ("Ty") filed the instant Petition for Review under Rule

45, seeking to set aside the Decision1 of the Court of Appeals Eighth
Division in CA-G.R. CR No. 20995, promulgated on 31 July 2001.
The Decisionaffirmed with modification the judgment of the Regional Trial
Court (RTC) of Manila, Branch 19, dated 21 April 1997, finding her guilty of
seven (7) counts of violation of Batas Pambansa Blg. 222 (B.P. 22),
otherwise known as the Bouncing Checks Law.

This case stemmed from the filing of seven (7) Informations for violation of

B.P. 22 against Ty before the RTC of Manila. The Informations were
docketed as Criminal Cases No. 93-130459 to No. 93-130465. The
accusatory portion of the Information in Criminal Case No. 93-130465
reads as follows:

That on or about May 30, 1993, in the City of Manila, Philippines, the
said accused did then and there willfully, unlawfully and feloniously
make or draw and issue to Manila Doctors’ Hospital to apply on
account or for value to Editha L. Vecino Check No. Metrobank
487712 dated May 30, 1993 payable to Manila Doctors Hospital in
the amount of P30,000.00, said accused well knowing that at the time
of issue she did not have sufficient funds in or credit with the drawee
bank for payment of such check in full upon its presentment, which
check when presented for payment within ninety (90) days from the
date hereof, was subsequently dishonored by the drawee bank for
"Account Closed" and despite receipt of notice of such dishonor, said
 accused failed to pay said Manila Doctors Hospital the amount of the
check or to make arrangement for full payment of the same within five
(5) banking days after receiving said notice.

Contrary to law.3

The other Informations are similarly worded except for the number of the

checks and dates of issue. The data are hereunder itemized as follows:

Criminal Case No. Check No. Postdated Amount

93-130459 487710 30 March 1993 P30,000.00
93-130460 487711 30 April 1993 P30,000.00
93-130461 487709 01 March 1993 P30,000.00
93-130462 487707 30 December 1992 P30,000.00
93-130463 487706 30 November 1992 P30,000.00
93-130464 487708 30 January 1993 P30,000.00
93-130465 487712 30 May 1993 P30,000.004

The cases were consolidated and jointly tried. At her arraignment, Ty

pleaded not guilty.5

The evidence for the prosecution shows that Ty’s mother Chua Lao So Un
was confined at the Manila Doctors’ Hospital (hospital) from 30 October
1990 until 4 June 1992. Being the patient’s daughter, Ty signed the
"Acknowledgment of Responsibility for Payment" in the Contract of
Admission dated 30 October 1990.6 As of 4 June 1992, the Statement of
Account7 shows the total liability of the mother in the amount
of P657,182.40. Ty’s sister, Judy Chua, was also confined at the hospital
from 13 May 1991 until 2 May 1992, incurring hospital bills in the amount
of P418,410.55.8 The total hospital bills of the two patients amounted
to P1,075,592.95. On 5 June 1992, Ty executed a promissory note wherein
she assumed payment of the obligation in installments. 9 To assure payment
of the obligation, she drew several postdated checks against Metrobank
payable to the hospital. The seven (7) checks, each covering the amount
of P30,000.00, were all deposited on their due dates. But they were all
dishonored by the drawee bank and returned unpaid to the hospital due to
insufficiency of funds, with the "Account Closed" advice. Soon thereafter,
the complainant hospital sent demand letters to Ty by registered mail. As
the demand letters were not heeded, complainant filed the seven
(7) Informations subject of the instant case.10

For her defense, Ty claimed that she issued the checks because of "an
uncontrollable fear of a greater injury." She averred that she was forced to
issue the checks to obtain release for her mother whom the hospital
inhumanely and harshly treated and would not discharge unless the
hospital bills are paid. She alleged that her mother was deprived of room
facilities, such as the air-condition unit, refrigerator and television set, and
subject to inconveniences such as the cutting off of the telephone line, late
delivery of her mother’s food and refusal to change the latter’s gown and
bedsheets. She also bewailed the hospital’s suspending medical treatment
of her mother. The "debasing treatment," she pointed out, so affected her
mother’s mental, psychological and physical health that the latter
contemplated suicide if she would not be discharged from the hospital.
Fearing the worst for her mother, and to comply with the demands of the
hospital, Ty was compelled to sign a promissory note, open an account
with Metrobank and issue the checks to effect her mother’s immediate
discharge.11

Giving full faith and credence to the evidence offered by the prosecution,
the trial court found that Ty issued the checks subject of the case in
payment of the hospital bills of her mother and rejected the theory of the
defense.12Thus, on 21 April 1997, the trial court rendered a Decision finding
Ty guilty of seven (7) counts of violation of B.P. 22 and sentencing her to a
prison term. The dispositive part of the Decision reads:

CONSEQUENTLY, the accused Vicky C. Ty, for her acts of issuing

seven (7) checks in payment of a valid obligation, which turned
unfounded on their respective dates of maturity, is found guilty of
seven (7) counts of violations of Batas Pambansa Blg. 22, and is
hereby sentenced to suffer the penalty of imprisonment of SIX
MONTHS per count or a total of forty-two (42) months.

SO ORDERED.13

Ty interposed an appeal from the Decision of the trial court. Before the

Court of Appeals, Ty reiterated her defense that she issued the checks
"under the impulse of an uncontrollable fear of a greater injury or in
avoidance of a greater evil or injury." She also argued that the trial court
erred in finding her guilty when evidence showed there was absence of
valuable consideration for the issuance of the checks and the payee had
knowledge of the insufficiency of funds in the account. She protested that
the trial court should not have applied the law mechanically, without due
regard to the principles of justice and equity. 14

In its Decision dated 31 July 2001, the appellate court affirmed the

judgment of the trial court with modification. It set aside the penalty of
imprisonment and instead sentenced Ty "to pay a fine of sixty thousand
pesos (P60,000.00) equivalent to double the amount of the check, in each
case."15

In its assailed Decision, the Court of Appeals rejected Ty’s defenses of

involuntariness in the issuance of the checks and the hospital’s knowledge
of her checking account’s lack of funds. It held that B.P. 22 makes the mere
act of issuing a worthless check punishable as a special offense, it being
a malum prohibitum. What the law punishes is the issuance of a bouncing
check and not the purpose for which it was issued nor the terms and
conditions relating to its issuance.16

Neither was the Court of Appeals convinced that there was no valuable
consideration for the issuance of the checks as they were issued in
payment of the hospital bills of Ty’s mother.17

In sentencing Ty to pay a fine instead of a prison term, the appellate court

applied the case of Vaca v. Court of Appeals18 wherein this Court declared
that in determining the penalty imposed for violation of B.P. 22, the
philosophy underlying the Indeterminate Sentence Law should be
observed, i.e., redeeming valuable human material and preventing
unnecessary deprivation of personal liberty and economic usefulness, with
due regard to the protection of the social order. 19

Petitioner now comes to this Court basically alleging the same issues
raised before the Court of Appeals. More specifically, she ascribed errors to
the appellate court based on the following grounds:

A. THERE IS CLEAR AND CONVINCING EVIDENCE THAT

PETITIONER WAS FORCED TO OR COMPELLED IN THE
OPENING OF THE ACCOUNT AND THE ISSUANCE OF THE
SUBJECT CHECKS.
 B. THE CHECKS WERE ISSUED UNDER THE IMPULSE OF
AN UNCONTROLLABLE FEAR OF A GREATER INJURY OR IN
AVOIDANCE OF A GREATER EVIL OR INJURY.

C. THE EVIDENCE ON RECORD PATENTLY SHOW[S] ABSENCE

OF VALUABLE CONSIDERATION IN THE ISSUANCE OF THE
SUBJECT CHECKS.

D. IT IS AN UNDISPUTED FACT THAT THE PAYEE OF THE

CHECKS WAS FULLY AWARE OF THE LACK OF FUNDS IN THE
ACCOUNT.

E. THE HONORABLE COURT OF APPEALS, AS WELL AS THE

HONORABLE TRIAL COURT [,] SHOULD NOT HAVE APPLIED
CRIMINAL LAW MECHANICALLY, WITHOUT DUE REGARD TO
THE PRINCIPLES OF JUSTICE AND EQUITY.

In its Memorandum,20 the Office of the Solicitor General (OSG), citing

jurisprudence, contends that a check issued as an evidence of debt, though
not intended to be presented for payment, has the same effect as an
ordinary check; hence, it falls within the ambit of B.P. 22. And when a
check is presented for payment, the drawee bank will generally accept the
same, regardless of whether it was issued in payment of an obligation or
merely to guarantee said obligation. What the law punishes is the issuance
of a bouncing check, not the purpose for which it was issued nor the terms
and conditions relating to its issuance. The mere act of issuing a worthless
check is malum prohibitum.21

We find the petition to be without merit and accordingly sustain Ty’s

conviction.

Well-settled is the rule that the factual findings and conclusions of the trial
court and the Court of Appeals are entitled to great weight and respect, and
will not be disturbed on appeal in the absence of any clear showing that the
trial court overlooked certain facts or circumstances which would
substantially affect the disposition of the case. 22Jurisdiction of this Court
over cases elevated from the Court of Appeals is limited to reviewing or
revising errors of law ascribed to the Court of Appeals whose factual
findings are conclusive, and carry even more weight when said court
affirms the findings of the trial court, absent any showing that the findings
are totally devoid of support in the record or that they are so glaringly
erroneous as to constitute serious abuse of discretion. 23

In the instant case, the Court discerns no compelling reason to reverse the
factual findings arrived at by the trial court and affirmed by the Court of
Appeals.

Ty does not deny having issued the seven (7) checks subject of this case.
She, however, claims that the issuance of the checks was under the
impulse of an uncontrollable fear of a greater injury or in avoidance of a
greater evil or injury. She would also have the Court believe that there was
no valuable consideration in the issuance of the checks.

However, except for the defense’s claim of uncontrollable fear of a greater

injury or avoidance of a greater evil or injury, all the grounds raised involve
factual issues which are best determined by the trial court. And, as
previously intimated, the trial court had in fact discarded the theory of the
defense and rendered judgment accordingly.

Moreover, these arguments are a mere rehash of arguments

unsuccessfully raised before the trial court and the Court of Appeals. They
likewise put to issue factual questions already passed upon twice below,
rather than questions of law appropriate for review under a Rule 45 petition.

The only question of law raised--whether the defense of uncontrollable fear

is tenable to warrant her exemption from criminal liability--has to be
resolved in the negative. For this exempting circumstance to be invoked
successfully, the following requisites must concur: (1) existence of an
uncontrollable fear; (2) the fear must be real and imminent; and (3) the fear
of an injury is greater than or at least equal to that committed. 24

It must appear that the threat that caused the uncontrollable fear is of such
gravity and imminence that the ordinary man would have succumbed to
it.25 It should be based on a real, imminent or reasonable fear for one’s life
or limb.26 A mere threat of a future injury is not enough. It should not be
speculative, fanciful, or remote.27 A person invoking uncontrollable fear
must show therefore that the compulsion was such that it reduced him to a
mere instrument acting not only without will but against his will as well. 28 It
must be of such character as to leave no opportunity to the accused for
escape.29
In this case, far from it, the fear, if any, harbored by Ty was not real and
imminent. Ty claims that she was compelled to issue the checks--a
condition the hospital allegedly demanded of her before her mother could
be discharged--for fear that her mother’s health might deteriorate further
due to the inhumane treatment of the hospital or worse, her mother might
commit suicide. This is speculative fear; it is not the uncontrollable fear
contemplated by law.

To begin with, there was no showing that the mother’s illness was so life-
threatening such that her continued stay in the hospital suffering all its
alleged unethical treatment would induce a well-grounded apprehension of
her death. Secondly, it is not the law’s intent to say that any fear exempts
one from criminal liability much less petitioner’s flimsy fear that her mother
might commit suicide. In other words, the fear she invokes was not
impending or insuperable as to deprive her of all volition and to make her a
mere instrument without will, moved exclusively by the hospital’s threats or
demands.

Ty has also failed to convince the Court that she was left with no choice but
to commit a crime. She did not take advantage of the many opportunities
available to her to avoid committing one. By her very own words, she
admitted that the collateral or security the hospital required prior to the
discharge of her mother may be in the form of postdated checks or
jewelry.30 And if indeed she was coerced to open an account with the bank
and issue the checks, she had all the opportunity to leave the scene to
avoid involvement.

Moreover, petitioner had sufficient knowledge that the issuance of checks

without funds may result in a violation of B.P. 22. She even testified that
her counsel advised her not to open a current account nor issue postdated
checks "because the moment I will not have funds it will be a big
problem."31 Besides, apart from petitioner’s bare assertion, the record is
bereft of any evidence to corroborate and bolster her claim that she was
compelled or coerced to cooperate with and give in to the hospital’s
demands.

Ty likewise suggests in the prefatory statement of

her Petition and Memorandum that the justifying circumstance of state of
necessity under par. 4, Art. 11 of the Revised Penal Code may find
application in this case.
We do not agree. The law prescribes the presence of three requisites to
exempt the actor from liability under this paragraph: (1) that the evil sought
to be avoided actually exists; (2) that the injury feared be greater than the
one done to avoid it; (3) that there be no other practical and less harmful
means of preventing it.32

In the instant case, the evil sought to be avoided is merely expected or

anticipated. If the evil sought to be avoided is merely expected or
anticipated or may happen in the future, this defense is not applicable. 33 Ty
could have taken advantage of an available option to avoid committing a
crime. By her own admission, she had the choice to give jewelry or other
forms of security instead of postdated checks to secure her obligation.

Moreover, for the defense of state of necessity to be availing, the greater

injury feared should not have been brought about by the negligence or
imprudence, more so, the willful inaction of the actor. 34 In this case, the
issuance of the bounced checks was brought about by Ty’s own failure to
pay her mother’s hospital bills.

The Court also thinks it rather odd that Ty has chosen the exempting
circumstance of uncontrollable fear and the justifying circumstance of state
of necessity to absolve her of liability. It would not have been half as bizarre
had Ty been able to prove that the issuance of the bounced checks was
done without her full volition. Under the circumstances, however, it is quite
clear that neither uncontrollable fear nor avoidance of a greater evil or
injury prompted the issuance of the bounced checks.

Parenthetically, the findings of fact in the Decision of the trial court in the

Civil Case35 for damages filed by Ty’s mother against the hospital is wholly
irrelevant for purposes of disposing the case at bench. While the findings
therein may establish a claim for damages which, we may add, need only
be supported by a preponderance of evidence, it does not necessarily
engender reasonable doubt as to free Ty from liability.

As to the issue of consideration, it is presumed, upon issuance of the

checks, in the absence of evidence to the contrary, that the same was
issued for valuable consideration.36 Section 2437 of the Negotiable
Instruments Law creates a presumption that every party to an instrument
acquired the same for a consideration38 or for value.39 In alleging otherwise,
Ty has the onus to prove that the checks were issued without
consideration. She must present convincing evidence to overthrow the
presumption.

A scrutiny of the records reveals that petitioner failed to discharge her

burden of proof. "Valuable consideration may in general terms, be said to
consist either in some right, interest, profit, or benefit accruing to the party
who makes the contract, or some forbearance, detriment, loss or some
responsibility, to act, or labor, or service given, suffered or undertaken by
the other aide. Simply defined, valuable consideration means an obligation
to give, to do, or not to do in favor of the party who makes the contract,
such as the maker or indorser."40

In this case, Ty’s mother and sister availed of the services and the facilities
of the hospital. For the care given to her kin, Ty had a legitimate obligation
to pay the hospital by virtue of her relationship with them and by force of
her signature on her mother’s Contract of Admission acknowledging
responsibility for payment, and on the promissory note she executed in
favor of the hospital.

Anent Ty’s claim that the obligation to pay the hospital bills was not her
personal obligation because she was not the patient, and therefore there
was no consideration for the checks, the case of Bridges v. Vann, et
al.41 tells us that "it is no defense to an action on a promissory note for the
maker to say that there was no consideration which was beneficial to him
personally; it is sufficient if the consideration was a benefit conferred upon
a third person, or a detriment suffered by the promisee, at the instance of
the promissor. It is enough if the obligee foregoes some right or privilege or
suffers some detriment and the release and extinguishment of the original
obligation of George Vann, Sr., for that of appellants meets the
requirement. Appellee accepted one debtor in place of another and gave
up a valid, subsisting obligation for the note executed by the appellants.
This, of itself, is sufficient consideration for the new notes."

At any rate, the law punishes the mere act of issuing a bouncing check, not
the purpose for which it was issued nor the terms and conditions relating to
its issuance.42 B.P. 22 does not make any distinction as to whether the
checks within its contemplation are issued in payment of an obligation or to
merely guarantee the obligation.43 The thrust of the law is to prohibit the
making of worthless checks and putting them into circulation. 44 As this
Court held in Lim v. People of the Philippines,45 "what is primordial is that
such issued checks were worthless and the fact of its worthlessness is
known to the appellant at the time of their issuance, a required element
under B.P. Blg. 22."

The law itself creates a prima facie presumption of knowledge of

insufficiency of funds. Section 2 of B.P. 22 provides:

Section 2. Evidence of knowledge of insufficient funds. - The making,

drawing and issuance of a check payment of which is refused by the
drawee bank because of insufficient funds in or credit with such bank,
when presented within ninety (90) days from the date of the check,
shall be prima facie evidence of knowledge of such insufficiency of
funds or credit unless such maker or drawer pays the holder thereof
the amount due thereon, or makes arrangements for payment in full
by the drawee of such check within five (5) banking days after
receiving notice that such check has not been paid by the drawee.

Such knowledge is legally presumed from the dishonor of the checks for
insufficiency of funds.46 If not rebutted, it suffices to sustain a conviction. 47

Petitioner likewise opines that the payee was aware of the fact that she did
not have sufficient funds with the drawee bank and such knowledge
necessarily exonerates her liability.

The knowledge of the payee of the insufficiency or lack of funds of the

drawer with the drawee bank is immaterial as deceit is not an essential
element of an offense penalized by B.P. 22. The gravamen of the offense is
the issuance of a bad check, hence, malice and intent in the issuance
thereof is inconsequential.48

In addition, Ty invokes our ruling in Magno v. Court of Appeals49 wherein

this Court inquired into the true nature of transaction between the drawer
and the payee and finally acquitted the accused, to persuade the Court that
the circumstances surrounding her case deserve special attention and do
not warrant a strict and mechanical application of the law.

Petitioner’s reliance on the case is misplaced. The material operative facts

therein obtaining are different from those established in the instant petition.
In the 1992 case, the bounced checks were issued to cover a "warranty
deposit" in a lease contract, where the lessor-supplier was also the
financier of the deposit. It was a modus operandiwhereby the supplier was
able to sell or lease the goods while privately financing those in desperate
need so they may be accommodated. The maker of the check thus became
an unwilling victim of a lease agreement under the guise of a lease-
purchase agreement. The maker did not benefit at all from the deposit,
since the checks were used as collateral for an accommodation and not to
cover the receipt of an actual account or credit for value.

In the case at bar, the checks were issued to cover the receipt of an actual
"account or for value." Substantial evidence, as found by the trial court and
Court of Appeals, has established that the checks were issued in payment
of the hospital bills of Ty’s mother.

Finally, we agree with the Court of Appeals in deleting the penalty of

imprisonment, absent any proof that petitioner was not a first-time offender
nor that she acted in bad faith. Administrative Circular 12-2000, 50 adopting
the rulings in Vaca v. Court of Appeals51 and Lim v. People,52 authorizes the
non-imposition of the penalty of imprisonment in B.P. 22 cases subject to
certain conditions. However, the Court resolves to modify the penalty in
view of Administrative Circular 13-200153 which clarified Administrative 12-
2000. It is stated therein:

The clear tenor and intention of Administrative Circular No. 12-2000

is not to remove imprisonment as an alternative penalty, but to lay
down a rule of preference in the application of the penalties provided
for in B.P. Blg. 22.

Thus, Administrative Circular 12-2000 establishes a rule of

preference in the application of the penal provisions of B.P. Blg. 22
such that where the circumstances of both the offense and the
offender clearly indicate good faith or a clear mistake of fact without
taint of negligence, the imposition of a fine alone should be
considered as the more appropriate penalty. Needless to say, the
determination of whether circumstances warrant the imposition of a
fine alone rests solely upon the Judge. Should the judge decide that
imprisonment is the more appropriate penalty, Administrative Circular
No. 12-2000 ought not be deemed a hindrance.

It is therefore understood that: (1) Administrative Circular 12-2000

does not remove imprisonment as an alternative penalty for violations
of B.P. 22; (2) the judges concerned may, in the exercise of sound
 discretion, and taking into consideration the peculiar circumstances of
each case, determine whether the imposition of a fine alone would
best serve the interests of justice, or whether forbearing to impose
imprisonment would depreciate the seriousness of the offense, work
violence on the social order, or otherwise be contrary to the
imperatives of justice; (3) should only a fine be imposed and the
accused unable to pay the fine, there is no legal obstacle to the
application of the Revised Penal Code provisions on subsidiary
imprisonment.54

WHEREFORE, the instant Petition is DENIED and the assailed Decision of

the Court of Appeals, dated 31 July 2001, finding petitioner Vicky C.
Ty GUILTY of violating Batas Pambansa Bilang 22
is AFFIRMED withMODIFICATIONS. Petitioner Vicky C. Ty
is ORDERED to pay a FINE equivalent to double the amount of each
dishonored check subject of the seven cases at bar with subsidiary
imprisonment in case of insolvency in accordance with Article 39 of the
Revised Penal Code. She is also ordered to pay private complainant,
Manila Doctors’ Hospital, the amount of Two Hundred Ten Thousand
Pesos (P210,000.00) representing the total amount of the dishonored
checks. Costs against the petitioner.

SO ORDERED.

Puno, Austria-Martinez, Callejo, Sr., and Chico-Nazario*, JJ., concur.

Footnotes

 Penned by Justice Perlita J. Tria Tirona, concurred in by Justices

1

Eugenio S. Labitoria and Eloy R. Bello, Jr.

 Entitled "An Act Penalizing the Making or Drawing and Issuance of a

2

Check Without Sufficient Funds or Credit and for Other Purposes."

3
 Rollo, p. 44; See also Rollo, pp. 92 and 109.
4
 Ibid; See also Rollo, pp. 62 and 93.
5
 Id. at 44, 62, 93.
6
 Id. at 46; Exhibits C and C-1.
7
 Ibid.; Exhibits D, D-1 to D-3.
8
 Exhibit D-4.
9
 Supra, note 3 at 61, citing Exhibits E and E-1.

 Id. at 46-47; See also Respondent’s Comment, Rollo, pp. 60-61

10

and Respondent’s Memorandum, Rollo, pp. 90-91.

11
 Id. at 47 and 49.
12
 Id. at 48.

 Id. at 44-45; Written by Honorable Zenaida R. Daguna, Presiding

13

Judge.
14
 Id. at 51.
15
 Id. at 53.
16
 Id. at 51-52; Citations omitted.
17
 Id. at 51.
18
 G.R. No. 131714, 16 November 1998, 298 SCRA 656, 659.
19
 Supra, note 3 at 53.
20
 Id. at 90-102; Dated 11 September 2002.
21
 Id. at 95-96; Citations omitted.

 Spouses Villarico v. Court of Appeals, G.R. No. 105912, 28 June

22

1999, 309 SCRA 193; Lim v. People, G.R. No. 143231, 26 October

2001, 368 SCRA 436.

 Alipoon v. Court of Appeals, G.R. No. 127523, 22 March 1999, 305

23

SCRA 118; Perez v. Court of Appeals, G.R. No. 107737, 1 October

1999, 316 SCRA 43; Baguio v. Republic of the Philippines, G.R. No.
119682, 21 January 1999, 301 SCRA 450; Lim v. People, G.R. No.
143231, 26 October 2001, 368 SCRA 436.
  People v. Petenia, No. L-51256, 12 August 1986, 143 SCRA 361,
24

369.
25
 U.S. v. Elicanal, No. 11439, 35 Phil 209, 212, 213 (1916).

 People v. Abanes, No. L-30609, 28 September 1976, 73 SCRA 44,

26

47; People v. Loreno, No. L-54414, 9 July 1984, 130 SCRA 311, 321,
322; People v. Serrano, No. L-45382, 13 May 1985, 136 SCRA 399,
405.

 People v. Jesus, No. L-2313, 88 Phil. 53, 56 (1951); People v.

27

Palencia, No. L-38957, 30 April 1976, 71 SCRA 679, 690; See

also Aquino, The Revised Penal Code, 1997 Edition, Vol. 1, p. 234
and Gregorio, Fundamentals of Criminal Law Review, 1997 Edition,
p. 79.

 People v. Tami, G.R. Nos. 101801-03, 2 May 1995, 244 SCRA 1,

28

23.

 People v. Villanueva, No. L-9529, 104 Phil. 450, 464 (1958),

29

Citation omitted; People v. De Los Reyes, G.R. No. 44112, 22

October 1992, 215 SCRA 63, 70; See also People v. Nuñez, G.R.
Nos. 112429-30, 341 Phil 817, 828 (1997).

 Supra, note 3 at 15 and 112; See also TSN dated September 19,

30

1994, p. 24.
31
 TSN dated September 19, 1994, p. 25.
32
 Par. 4, Art. 11, Revised Penal Code.
33
 Reyes, The Revised Penal Code, 1998 Edition, Book 1, p. 191.
34
 Id. at 192.

 Entitled "So Un Chua v. Manila Doctors’ Hospital," Civil Case No.

35

63958, Regional Trial Court of Pasig, Branch 159.

 Lim v. People, G.R. No. 143231, 26 October 2001, 368 SCRA 436;
36

Sec. 24, The Negotiable Instruments Law.

37
 SEC. 24. Presumption of consideration.- Every negotiable
instrument is deemed prima facie to have been issued for valuable
consideration; and every person whose signature appears thereon to
have become a party thereto, for value.

 SEC. 25. Value; What constitutes.- Value is any consideration

38

sufficient to support a simple contract. An antecedent or pre-existing

debt constitutes value, and is deemed such whether the instrument is
payable on demand or at a future date.

 SEC. 191. Definitions and meaning of terms.- In this Act, unless the

39

context otherwise requires:

xxx

"Value" means valuable consideration.

 Agbayani, Aguedo, Commentaries and Jurisprudence on the

40

Commercial Laws of the Philippines, 1992 Edition, p. 235; Citations

omitted.

 88 Kan 98, 127 Pacific Reporter 604, 9 November 1912; Citations
41

omitted.

 Llamado v. Court of Appeals, G.R. No. 99032, 26 March 1997, 270

42

SCRA 423; Aguirre v. People, G.R. No. 144142, 23 August 2001, 363

SCRA 672; Abarquez v. Court of Appeals, G.R. No. 148557, 7
August 2003, 408 SCRA 500; Lazaro v. Court of Appeals. G.R. No.
105461, 11 November 1993, 227 SCRA 723.
43
 Llamado v. Court of Appeals, supra.

 Caram Resources Corp. v. Contreras, Adm. Matter No. MJT-93-

44

849, 26 October 1994, 237 SCRA 724; Cruz v. Court of Appeals,

G.R. No. 108738, 17 June 1994, 233 SCRA 301.
45
 G.R. No. 143231, 26 October 2001, 368 SCRA 436.

 Meriz v. People, G.R. No. 134498, 13 November 2001, 368 SCRA

46

524.
  Rosa Lim v. People. G.R. No. 130038, 18 September 2000, 340
47

SCRA 497.

 Cruz v. Court of Appeals, G.R. No. 108738, 17 June 1994, 233

48

SCRA 301.
49
 G.R. No. 96132, 26 June 1992, 210 SCRA 471.
50
 Issued on 21 November 2000.
51
 Supra note 14.
52
 Supra note 27.
53
 Issued on 14 February 2001.

 Abarquez v. Court of Appeals, G.R. No. 148557, 7 August 2003,

54

408 SCRA 500.

 THIRD DIVISION

[G.R. No. 150647. September 29, 2004]

ROWENO POMOY, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.

DECISION
PANGANIBAN, J.:

Well-established is the principle that the factual findings of the trial court, when
affirmed by the Court of Appeals, are binding on the highest court of the land. However,
when facts are misinterpreted and the innocence of the accused depends on a proper
appreciation of the factual conclusions, the Supreme Court may conduct a review
thereof. In the present case, a careful reexamination convinces this Court that an
accident caused the victims death. At the very least, the testimonies of the credible
witnesses create a reasonable doubt on appellants guilt. Hence, the Court must uphold
the constitutional presumption of innocence.

The Case

Before us is a Petition for Review  under Rule 45 of the Rules of Court, seeking to
[1]

set aside the February 28, 2001 Decision  and the October 30, 2001 Resolution  of the
[2] [3]

Court of Appeals (CA) in CAGR CR No. 18759. The CA affirmed, with modifications, the
March 8, 1995 judgment  of the Regional Trial Court (RTC)  of Iloilo City (Branch 25) in
[4] [5]

Criminal Case No. 36921, finding Roweno Pomoy guilty of the crime of homicide. The
assailed CA Decision disposed as follows:

WHEREFORE, premises considered, MODIFIED as to penalty in the sense that the

[Petitioner] ROWENO POMOY is sentenced to suffer an indeterminate prison term of
six (6) years, four (4) months and ten (10) days of prision mayor minimum, as
minimum, to fourteen (14) years eight (8) months and twenty (20) days of reclusion
temporal medium, as maximum, the decision appealed from is hereby AFFIRMED in
all other respects.
[6]

The challenged CA Resolution denied petitioners Motion for Reconsideration.

Petitioner was charged in an Information worded thus:
That on or about the 4th day of January 1990, in the Municipality of Sara, Province of
Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, armed with his .45 service pistol, with deliberate intent and decided
purpose to kill, and without any justifiable cause or motive, did then and there
willfully, unlawfully and feloniously assault, attack and shoot one TOMAS BALBOA
with the service pistol he was then provided, inflicting upon the latter gunshot wounds
on the vital parts of his body, which directly caused the death of said victim thereafter.
[7]

The Facts
Version of the Prosecution

The Office of the Solicitor General (OSG) presented respondents version of the
facts as follows:

Tomas Balboa was a master teacher of the Concepcion College of Science and
Fisheries in Concepcion, Iloilo.

On January 4, 1990, about 7:30 in the morning, some policemen arrived at

the Concepcion College to arrest Balboa, allegedly in connection with a robbery
which took place in the municipality in December 1989. With the arrest effected,
Balboa and the policemen passed by the Concepcion Elementary School where his
wife, Jessica, was in a get-together party with other School Administrators. When his
wife asked him, Why will you be arrested? [H]e answered [Even I] do not know why I
am arrested. That is why I am even going there in order to find out the reason for my
arrest.

Balboa was taken to the Headquarters of the already defunct 321st Philippine

Constabulary Company at Camp Jalandoni, Sara, Iloilo. He was detained in the jail
thereat, along with Edgar Samudio, another suspect in the robbery case.

Later that day, about a little past 2 oclock in the afternoon, petitioner, who is a police
sergeant, went near the door of the jail where Balboa was detained and directed the
latter to come out, purportedly for tactical interrogation at the investigation room, as
he told Balboa: Lets go to the investigation room. The investigation room is at the
main building of the compound where the jail is located. The jail guard on duty,
Nicostrado Estepar, opened the jail door and walked towards the investigation room.

At that time, petitioner had a gun, a .45 caliber pistol, tucked in a holster which was
hanging by the side of his belt. The gun was fully embedded in its holster, with only
the handle of the gun protruding from the holster.
When petitioner and Balboa reached the main building and were near the investigation
room, two (2) gunshots were heard. When the source of the shots was verified,
petitioner was seen still holding a .45 caliber pistol, facing Balboa, who was lying in a
pool of blood, about two (2) feet away. When the Commanding Officer of the
Headquarters arrived, he disarmed petitioner and directed that Balboa be brought to
the hospital. Dr. Palma (first name not provided) happened to be at the crime scene as
he was visiting his brother in the Philippine Constabulary. When Dr. Palma examined
Balboa, he (Dr. Palma) said that it was unnecessary to bring Balboa to the hospital for
he was dead.

Upon the request of Mrs. Jessica Balboa, the wife of the deceased, Dr. Ricardo
Jabonete, the medico-legal officer of the National Bureau of Investigation, Region
VI, Iloilo City, conducted an autopsy on the remains of Tomas Balboa. The following
were his findings:

Pallor, integumens and nailbeds.

Wound, gunshot: (1) ENTRANCE, downwards and medially, edges, modified by

sutures, surrounded by abrasion collar, 0.6 cm. In its chest, left side, 10.0 cms. from
anterior midline, 121.0 cms. From left heel, directed medially backwards from left to
right, penetrating chest wall thru 5th intercostals space into thoracic cavity, perforating
thru and thru, upper lobe, left lung, lacerating left ventricular wall causing punched
out fracture, 8th thoracic vertebra and make an EXIT, stallate in shape, 1.0 x 0.8 cm.
Edges, modified by sutures, back, right side, 8.0 cms. From posterior midline, 117.0
cms. From right heel (2) ENTRANCE, ovaloid, oriented medially downwards, edges
sutured, 0.7 cm. on its widest portion, at infero-medial border, hypochondriac region,
left side, 4.0 cms. From anterior midline, 105.0 cms. From left heel, directed
backwards, laterally wall into penetrating abdominal cavity, perforating thru and thru,
stomach, head of the pancreas and mesentery, make an exit, ovalid, 1.0 x 0.8 cm.,
oriented medially upwards, edges, sutured, back, left side, level of 9th intercostal
space, 4.5 cms. From posterior midline, 110.0 cms. From left heel. x x x.

CAUSE OF DEATH: Hemorrhage, massive secondary to gunshot wounds on chest

and abdomen.

REMARKS: Body previously embalmed and autopsied.

Dr. Jaboneta testified that the two (2) wounds he found on x x x Balboas body were
gunshot wounds. The entrance of [W]ound No. 1 was to the left side of the chest
about the left nipple and exited to the right side of the back. Its trajectory was
backwards then downwards from left to right. As to the possible position of the
assailant, Dr. Jaboneta opined that the nozzle of the gun was probably in front of the
victim and was more to the left side, and the gun must have been a little bit higher
than the entrance wound. Wound No. 2 was located immediately below the arch of the
ribs, left side. Its direction was backwards and laterally upwards. Dr. Jaboneta
estimated that when it was inflicted, the assailant must have pointed the guns nozzle
to the right side front of the victim. The distance between the entrance points of
wounds No. 1 and No. 2 was found to be about 16.0 centimeters. [8]

Version of the Defense

The Petition adopted the narration of facts in the assailed CA Decision, which in
turn culled them from the trial court. The RTC summarized the testimonies of Defense
Witnesses Erna Basa, the lone eyewitness to the incident; Eden Legaspi; Dr. Salvador
Mallo Jr.; and petitioner himself, as follows:

Erna Basa:

x x x [O]n January 4, 1990, she was working in their office in the camp up to the
afternoon; at about past 2 oclock that afternoon while working on the backlogs, she
heard some noise and exchange of words which were not clear, but it seemed there
was growing trouble; she opened the door to verify and saw Roweno Pomoy and
Tomas Balboa grappling for the possession of the gun; she was inside the room and
one meter away from the door; Pomoy and Balboa while grappling were two to three
meters away from the door; the grappling happened so fast and the gun of Pomoy was
suddenly pulled out from its holster and then there was explosion; she was not certain
who pulled the gun. x x x.

Eden Legaspi:

x x x [A]s early as 1:30 oclock in the afternoon of January 4, 1990 she was inside the
investigation room of the PC at Camp Jalandoni, Sara, Iloilo; at about 2 oclock that
same afternoon while there inside, she heard a commotion outside and she remained
seated on the bench; when the commotion started they were seated on the bench and
after the commotion that woman soldier (referring to Erna Basa) stood up and opened
the door and she saw two persons grappling for the possession of a gun and
immediately two successive shots rang out; she did not leave the place where she was
seated but she just stood up; after the shots, one of the two men fall down x x x.

Accused-petitioner Roweno Pomoy:

He is 30 years old and a PNP member of the Iloilo Provincial Mobile Force Company
then attached to the defunct 321st PC Company; he was one of the investigators of
their outfit; about 2 oclock or past that time of January 4, 1990 he got Tomas Balboa
from their stockade for tactical interrogation; as he was already holding the door knob
of their investigation room and about to open and enter it, all of a sudden he saw
Tomas Balboa approach him and take hold or grab the handle of his gun; Tomas
Balboa was a suspect in a robbery case who was apprehended by the police of
Concepcion and then turned over to them (PC) and placed in their stockade; he asked
the sergeant of the guard to let Balboa out of the stockade for interrogation; from the
stockade with Balboa walking with him, he had his .45 caliber pistol placed in his
holster attached to his belt on his waist; then as he was holding the doorknob with his
right hand to open the door, the victim, who was two meters away from him, suddenly
approached him and grabbed his gun, but all of a sudden he held the handle of his gun
with his left hand; he released his right hand from the doorknob and, with that right
hand, he held the handle of his gun; Tomas Balboa was not able to take actual hold of
the gun because of his efforts in preventing him (Balboa) from holding the handle of
his gun; he used his left hand to parry the move of Balboa; after he held the handle of
his gun with his right hand, in a matter of seconds, he felt somebody was holding his
right hand; he and Balboa grappled and in two or three seconds the gun was drawn
from its holster as both of them held the gun; more grappling followed and five
seconds after the gun was taken from its holster it fired, the victim was to his right
side when the attempt to grab his gun began and was still to his right when the gun
was drawn from its holster until it fired, as they were still grappling or wrestling; his
gun was already loaded in its chamber and cocked when he left his house, and it was
locked when it fired; during the grappling he used his left hand to prevent Balboa
from holding his gun, while the victim used his right hand in trying to reach the gun;
after the gun fired, they were separated from each other and Balboa fell; he is taller
than Balboa though the latter was bigger in build; he cannot say nor determine who of
them was stronger; after Balboa fell, Sgt. Alag shouted saying stop that and he saw
Sgt. Alag approaching; sometime after, Capt. Rolando Maclang, their commanding
officer, came, got his gun, and said that the case be investigated as to what really
happened. He said that when his gun was put in its holster only its handle protrudes or
comes out from it.

Upon cross-examination, he said that Balboa was a suspect in a robbery case that
happened during the first week of December, 1989; he was the one who filed that case
in the town of San Dionisio and that case involves other persons who were also
detained; before January 4, 1990 he had also the chance to invite and interrogate
Balboa but who denied any robbery case; x x x [I]t was after he took his lunch that
day when Capt. Maclang called him to conduct the interrogation; when he took
Balboa from the stockade he did not tell him that he (Balboa) was to be investigated in
the investigation room which was housed in the main building which is fifty meters,
more or less, from the stockade, likewise houses the administrative office, the office
of the commanding officer, officer of the operations division and that of the signal
division; his gun was in its holster when the victim tried to grab it (gun); from the
time he sensed that the victim tried to grab his gun, he locked the victim; the hand of
the victim was on top of his hand and he felt the victim was attempting to get his gun;
that the entire handle of his gun was exposed when placed inside its holster; he cannot
tell whether the victim, while struggling with him, was able to hold any portion of his
gun from the tip of its barrel to the point where its hammer is located; during the
incident his gun was fully loaded and cocked; Sgt. Alag did not approach, but just
viewed them and probably reported the incident to their commanding officer; he was
not able to talk to Sgt. Alag as he (Pomoy) was not in his right sense; when his
commanding officer came some five to ten minutes later and took away his gun he did
not tell him anything.

Dr. Salvador Mallo Jr.

He is the Rural Health Physician of Sara who conducted the autopsy on the cadaver of
Tomas Balboa that afternoon of January 4, 1990; in his autopsy findings respecting
which he made an autopsy report he said he found two entrance wounds on the victim,
the first on the left chest with trajectory medially downward, while the second one is
on the left side of the stomach with trajectory somewhat going upward; at the same
time of his examination he saw this victim to be wearing a light-colored T-shirt and a
jacket; other than the T-shirt worn by the victim, he did not see or find any powder
burns and marks and that those dotted marks in the T-shirt were believed by him to be
powder burns as they look like one; he also found a deformed slug in the pocket of the
jacket of the victim.[9]

Ruling of the Court of Appeals

The CA anchored its Decision on the following factual findings: 1) the victim was not
successful in his attempts to grab the gun, since petitioner had been in control of the
weapon when the shots were fired; 2) the gun had been locked prior to the alleged
grabbing incident and immediately before it went off; it was petitioner who released the
safety lock before he deliberately fired the fatal shots; and 3) the location of the wounds
found on the body of the deceased did not support the assertion of petitioner that there
had been a grappling for the gun.
To the appellate court, all the foregoing facts discredited the claim of petitioner that
the death of Balboa resulted from an accident. Citing People v. Reyes,  the CA [10]

maintained that a revolver is not prone to accidental firing if it were simply handed over
to the deceased as appellant claims because of the nature of its mechanism, unless it
was already first cocked and pressure was exerted on the trigger in the process of
allegedly handing it over. If it were uncocked, then considerable pressure had to be
applied on the trigger to fire the revolver. Either way, the shooting of the deceased must
have been intentional because pressure on the trigger was necessary to make the gun
fire.
[11]

Moreover, the appellate court obviously concurred with this observation of the OSG:

[Petitioners] theory of accident would have been easier to believe had the victim been
shot only once. In this case, however, [petitioner] shot the victim not only once but
twice, thereby establishing [petitioners] determined effort to kill the victim. By any
stretch of the imagination, even assuming without admitting that the first shot
was accidental, then it should not have been followed by another shot on another vital
part of the body. The fact that [petitioner] shot the victim two (2) times and was hit on
two different and distant parts of the body, inflicted from two different locations or
angles, means that there was an intent to cause the victims death, contrary to
[petitioners] pretensions of the alleged accidental firing. It is an oft-repeated principle
that the location, number and gravity of the wounds inflicted on the victim have a
more revealing tale of what actually happened during the incident. x x x. [12]

Furthermore, the CA debunked the alternative plea of self-defense. It held that

petitioner had miserably failed to prove the attendance of unlawful aggression, an
indispensable element of this justifying circumstance.
While substantially affirming the factual findings of the RTC, the CA disagreed with
the conclusion of the trial court that the aggravating circumstance of abuse of public
position had attended the commission of the crime. Accordingly, the penalty imposed by
the RTC was modified by the appellate court in this manner:

x x x [F]or public position to be appreciated as an aggravating circumstance, the

public official must use his influence, prestige and ascendancy which his office gives
him in realizing his purpose. If the accused could have perpetrated the crime without
occupying his position, then there is no abuse of public position. (People vs. Joyno,
304 SCRA 655, 670). In the instant case, there is no showing that the [petitioner] had
a premeditated plan to kill the victim when the former fetched the latter from the
stockade, thus, it cannot be concluded that the public position of the [petitioner]
facilitated the commission of the crime. Therefore, the trial courts finding that the said
aggravating circumstance that [petitioner] took advantage of his public position to
commit the crime cannot be sustained. Hence, there being no aggravating and no
mitigating circumstance proved, the maximum of the penalty shall be taken from the
medium period of reclusion temporal, a penalty imposable for the crime of homicide.
x x x. [13]

Hence, this Petition. [14]

 Issues

In his Memorandum, petitioner submitted the following issues for the Courts
consideration:
I. The Court of Appeals committed serious and reversible error in affirming petitioners
conviction despite the insufficiency of the prosecutions evidence to convict the
petitioner, in contrast to petitioners overwhelming evidence to support his
theory/defense of accident.
II. The Court of Appeals committed grave and reversible error in affirming the
conviction of the petitioner on a manifestly mistaken inference that when the gun
fired, the petitioner was in full control of the handle of the gun, because what the
testimonies of disinterested witnesses and the petitioner reveal was that the gun
fired while petitioner and Balboa were both holding the gun in forceful efforts to
wrest the gun from each other.
III. The Court of Appeals gravely erred in affirming the solicitor generals observation
that the fact that petitioner shot the victim twice establishes petitioners determined
effort to kill the victim.
IV. The appellate court committed serious misapprehension of the evidence presented
when it ruled that the trajectory of the wounds was front-to-back belying the
allegation of petitioner that he and the victim were side-by-side each other when the
grappling ensued.
V. The Court of Appeals failed to discern the real import of petitioners reaction to the
incident when it stated that the dumbfounded reaction of petitioner after the incident
strongly argues against his claim of accidental shooting.
VI. The appellate court committed grave error when it disregarded motive or lack of it in
determining the existence of voluntariness and intent on the part of petitioner to
shoot at the victim when the same was put in serious doubt by the evidence
presented.
VII. The Court of Appeals was mistaken in ruling that the defense of accident and self-
defense are inconsistent.
VIII. The Court of Appeals obviously erred in the imposition of the penalties and
damages.[15]
In sum, the foregoing issues can be narrowed down to two: First, whether the
shooting of Tomas Balboa was the result of an accident; and second, whether petitioner
was able to prove self-defense.

The Courts Ruling

The Petition is meritorious.

First Issue:
Accidental Shooting
 Timeless is the legal adage that the factual findings of the trial court, when affirmed
by the appellate court, are conclusive.  Both courts possess time-honored expertise in
[16]

the field of fact finding. But where some facts are misinterpreted or some details
overlooked, the Supreme Court may overturn the erroneous conclusions drawn by the
courts a quo. Where, as in this case, the facts in dispute are crucial to the question of
innocence or guilt of the accused, a careful factual reexamination is imperative.
Accident is an exempting circumstance under Article 12 of the Revised Penal Code:

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

x x x x x x x x x

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

Exemption from criminal liability proceeds from a finding that the harm to the victim
was not due to the fault or negligence of the accused, but to circumstances that could
not have been foreseen or controlled.  Thus, in determining whether an accident
[17]

attended the incident, courts must take into account the dual standards of lack of intent
to kill and absence of fault or negligence. This determination inevitably brings to the fore
the main question in the present case: was petitioner in control of the .45 caliber pistol
at the very moment the shots were fired?
Petitioner Not in Control
of the Gun When It Fired

The records show that, other than petitioner himself, it was Erna Basa who witnessed
the incident firsthand. Her account, narrated during cross-examination, detailed the
events of that fateful afternoon of January 4, 1990 as follows:
ATTY. TEODOSIO:
Q. You said that while you were inside the investigation room you heard a
commotion. That commotion which you heard, did you hear any shouting as part of
that commotion which you heard?
A. Moderately there was shouting and their dialogue was not clear. It could not be
understood.
Q. Did you hear any voices as part of that commotion?
A. No, sir.
Q. From the time you entered the investigation room you did not hear any voice while
you were inside the investigation room as part of that commotion?
A. There was no loud voice and their conversation could not be clarified. They were
talking somewhat like murmuring or in a low voice but there was a sort of trouble in
their talks.
COURT:
Q. Was there a sort of an exchange of words in their conversation?
A. Yes, sir.
x x x x x x x x x
Q. When you opened the door, you saw Sgt. Pomoy and Mr. Balboa the deceased in
this case? Am I correct?
A. Yes, sir.
Q. And when you saw Sgt. Pomoy was he holding a gun?
A. Not yet, the gun was still here. (Witness illustrating by pointing to her side) and I saw
both of them grappling for that gun.
Q. Where was the gun at that time?
A. The gun was in its holster. (Witness illustrating by pointing to [her] side.)
Q. When you demonstrated you were according to you saw the hands holding the
gun. It was Sgt. Pomoy who was holding the gun with his right hand?
A. I saw two hands on the handle of the gun in its holster, the hand of Sir Balboa
and Sgt. Pomoy.
COURT:
Q. At that precise moment the gun was still in its holster?
A. When I took a look the gun was still in its holster with both hands grappling for the
possession of the gun.
Q. How many hands did you see?
A. Two.
Q. One hand of Sgt. Pomoy and one hand is that of the victim?
A. Yes, sir.
COURT:
Proceed.
ATTY TEODOSIO:
Q. Which hand of Sgt. Pomoy did you see holding the gun?
A. Right hand of Sgt. Pomoy.
Q. And when you see that right hand of Sgt. Pomoy, was it holding the gun?
A. The right hand of Sgt. Pomoy was here on the gun and Sir Balboas hand was
also there. Both of them were holding the gun.
Q. Which part of the gun was the right hand of Sgt. Pomoy holding?
A. The handle.
Q. And was he facing Tomas Balboa when he was holding the gun with his right hand?
A. At first they were not directly facing each other.
Q. So later, they were facing each other?
A. They were not directly facing each other. Their position did not remain steady
as they were grappling for the possession of the gun force against force.
COURT:
Q. What was the position of the victim when the shots were fired?
A. When I saw them they were already facing each other.
Q. What was the distance?
A. Very close to each other.
Q. How close?
A. Very near each other.
Q. Could it be a distance of within one (1) foot?
A. Not exactly. They were close to each other in such a manner that their bodies would
touch each other.
Q. So the distance is less than one (1) foot when the gun fired?
A. One (1) foot or less when the explosions were heard.
Q. And they were directly facing each other?
A. Yes, sir.
COURT:
Proceed.
Q. Were you able to see how the gun was taken out from its holster?
A. While they were grappling for the possession of the gun, gradually the gun
was released from its holster and then there was an explosion.
Q. And when the gun fired the gun was on Tomas Balboa?
A. I could not see towards whom the nozzle of the gun was when it fired
because they were grappling for the possession of the gun.
Q. Did you see when the gun fired when they were grappling for its possession?
A. Yes sir, I actually saw the explosion. It came from that very gun.
Q. Did you see the gun fired when it fired for two times?
A. Yes, sir.
Q. Did you see the barrel of the gun when the gun fired?
A. I could not really conclude towards whom the barrel of the gun was pointed to
because the gun was turning.
x x x x x x x x x
Q. Could you tell the court who was holding the gun when the gun fired?
A. When the gun exploded, the gun was already in the possession of Sgt. Pomoy. He
was the one holding the gun.
Q. After the gun went off, you saw the gun was already in the hand of Sgt. Pomoy?
A. Yes, sir.
Q. How soon after the gun went off when you saw the gun in the hand of Sgt. Pomoy?
A. After Balboa had fallen and after they had separated themselves with each other, it
was then that I saw Sgt. Pomoy holding the gun.
COURT:
Proceed.
ATTY. TEODOSIO:
Q. When the gun was taken out from its holster, Sgt. Pomoy was the one holding the
handle of the gun? Am I correct?
A. Both of them were holding the handle of the gun.
Q. So when the gun was still in its holster, two of them were holding the gun?
A. Yes sir, they were actually holding the gun, Sgt. Pomoy and Sir Balboa.
Q. It was the right hand of Sgt. Pomoy who was holding the handle of the gun as you
testified?
A. Yes, sir.
Q. Which hand of Balboa was holding the handle of the gun?
A. Left hand.
Q. At the time Balboa was holding the handle of the gun with his left hand, was he in
front of Sgt. Pomoy?
A. They had a sort of having their sides towards each other. Pomoys right and Balboas
left sides [were] towards each other. They were side by side at a closer distance
towards each other.
x x x x x x x x x
Q. It was actually Sgt. Pomoy who was holding the handle of the gun during that time?
A. When I looked out it was when they were grappling for the possession of the
gun and the right hand of Sgt. Pomoy was holding the handle of the gun.
Q. When you saw them did you see what position of the handle of the gun was being
held by Tomas Balboa? The rear portion of the handle of the gun or the portion
near the trigger?
A. When I looked at them it was the hand of Sgt. Pomoy holding the handle of the
gun with his right hand with the hand of Sir Balboa over the hand of Pomoy,
the same hand holding the gun.
Q. It was in that position when the gun was removed from its holster?
A. When the gun pulled out from its holster, I was not able to notice clearly
anymore whose hand was holding the gun when I saw both their hands were
holding the gun.
Q. When you said this in [the] vernacular, Daw duha na sila nagakapot, what you really
mean?
A. Both of them were holding the gun.
Q. But Sgt. Pomoy still holding the handle of the gun?
A. Still both of them were holding the handle of the gun.
Q. With the hand of Balboa still on the top of the hand of Sgt. Pomoy as what you have
previously said when the gun was in the holster of Sgt. Pomoy?
A. When the gun was pulled from its holster, I saw that Sgt. Pomoys right hand
was still on the handle of the gun with the left hand of Sir Balboa over his
right hand of Sgt. Pomoy, like this (witness illustrating by showing his right hand
with her left hand over her right hand as if holding something. The thumb of the left
hand is somewhat over the index finger of the right hand.)
COURT:
Which hand of the victim was used by him when the gun was already pulled out form
its holster and while the accused was holding the handle of the gun?
A. Left hand.
Q. So, he was still using the same left hand in holding a portion of the handle of the
gun up to the time when the gun was pulled out from its holster?
A. Yes sir, the same left hand and that of Pomoy his right hand because the left hand
of Pomoy was used by him in parrying the right hand of Sir Balboa which is about
to grab the handle of the gun.
COURT:
Q. So in the process of grappling he was using his left hand in pushing the victim away
from him?
A. Yes, sir.
Q. What about the right hand of the victim, what was he doing with his right hand?
A. The victim was trying to reach the gun with his right hand and Pomoy was
using his left hand to protect the victim from reaching the gun with his right
hand.
COURT:
Proceed.
ATTY. TEODOSIO:
Q. Did you say a while ago that Mr. Balboa was able to hold the barrel of the gun
of Sgt. Pomoy?
A. Yes, sir.
 Q. And that was at the time before the shots were fired?
A. Yes, he was able to hold the tip of the barrel of the gun using his right hand.
COURT:
Q. That was before the gun fired?
A. Yes, sir.[18]
The foregoing account demonstrates that petitioner did not have control of the gun
during the scuffle. The deceased persistently attempted to wrest the weapon from him,
while he resolutely tried to thwart those attempts. That the hands of both petitioner and
the victim were all over the weapon was categorically asserted by the eyewitness. In the
course of grappling for the gun, both hands of petitioner were fully engaged -- his right
hand was trying to maintain possession of the weapon, while his left was warding off the
victim. It would be difficult to imagine how, under such circumstances, petitioner would
coolly and effectively be able to release the safety lock of the gun and deliberately aim
and fire it at the victim.
It would therefore appear that there was no firm factual basis for the following
declaration of the appellate court: [Petitioner] admitted that his right hand was holding
the handle of the gun while the left hand of the victim was over his right hand when the
gun was fired. This declaration would safely lead us to the conclusion that when the gun
went off herein [petitioner] was in full control of the gun. [19]

Release of the Guns Safety Lock and

Firing of the Gun Both Accidental

Petitioner testified that the .45 caliber service pistol was equipped with a safety lock
that, unless released, would prevent the firing of the gun. Despite this safety feature,
however, the evidence showed that the weapon fired and hit the victim -- not just once,
but twice. To the appellate court, this fact could only mean that petitioner had
deliberately unlocked the gun and shot at the victim. This conclusion appears to be non
sequitur.
It is undisputed that both petitioner and the victim grappled for possession of the
gun. This frenzied grappling for the weapon -- though brief, having been finished in a
matter of seconds -- was fierce and vicious. The eyewitness account amply illustrated
the logical conclusion that could not be dismissed: that in the course of the scuffle, the
safety lock could have been accidentally released and the shots accidentally fired.
That there was not just one but two shots fired does not necessarily and
conclusively negate the claim that the shooting was accidental, as the same
circumstance can easily be attributed to the mechanism of the .45 caliber service
gun. Petitioner, in his technical description of the weapon in question, explained how the
disputed second shot may have been brought about:

x x x Petitioner also testified on cross-examination that a caliber .45 semi-automatic

pistol, when fired, immediately slides backward throwing away the empty shell and
returns immediately carrying again a live bullet in its chamber. Thus, the gun can, as it
did, fire in succession. Verily, the location of, and distance between the wounds and
the trajectories of the bullets jibe perfectly with the claim of the petitioner: the
trajectory of the first shot going downward from left to right thus pushing Balboas
upper body, tilting it to the left while Balboa was still clutching petitioners hand over
the gun; the second shot hitting him in the stomach with the bullet going upward of
Balboas body as he was falling down and releasing his hold on petitioners hand x x x.
[20]

Thus, the appellate courts reliance on People v. Reyes  was misplaced. In that
[21]

case, the Court disbelieved the accused who described how his gun had exploded while
he was simply handing it over to the victim. Here, no similar claim is being made;
petitioner has consistently maintained that the gun accidentally fired in the course of his
struggle with the victim. More significantly, the present case involves a semi-automatic
pistol, the mechanism of which is very different from that of a revolver, the gun used
in Reyes.  Unlike a revolver, a semi-automatic pistol, as sufficiently described by
[22]

petitioner, is prone to accidental firing when possession thereof becomes the object of a
struggle.
Alleged Grappling Not Negated
by Frontal Location of Wounds

On the basis of the findings of Dr. Jaboneta showing that the wounds of the
deceased were all frontal, the appellate court rejected petitioners claim that a grappling
for the weapon ever occurred. It held that if there was indeed a grappling between the
two, and that they had been side [by] side x x x each other, the wounds thus inflicted
could not have had a front-to-back trajectory which would lead to an inference that the
victim was shot frontally, as observed by Dr. Jaboneta. [23]

Ordinarily, the location of gunshot wounds is indicative of the positions of the parties
at the precise moment when the gun was fired. Their positions would in turn be relevant
to a determination of the existence of variables such as treachery, aggression and so
on.
In the factual context of the present case, however, the location of the wounds
becomes inconsequential. Where, as in this case, both the victim and the accused were
grappling for possession of a gun, the direction of its nozzle may continuously change in
the process, such that the trajectory of the bullet when the weapon fires becomes
unpredictable and erratic. In this case, the eyewitness account of that aspect of the
tragic scuffle shows that the parties positions were unsteady, and that the nozzle of the
gun was neither definitely aimed nor pointed at any particular target. We quote the
eyewitness testimony as follows:
Q. And when the gun fired the gun was on Tomas Balboa?
A. I could not see towards whom the nozzle of the gun was when it fired
because they were grappling for the possession of the gun.
x x x x x x x x x
Q. Did you see the barrel of the gun when the gun fired?
 A. I could not really conclude towards whom the barrel of the gun was pointed to
because the gun was turning.[24]
x x x x x x x x x
Q And was he facing Tomas Balboa when he was holding the gun with his right hand?
A At first, they were not directly facing each other.
Q So later, they were facing each other?
A They were not directly facing each other. Their position did not remain steady as they
were grappling for the possession of the gun force against force.[25]
In his Petition, this explanation is given by petitioner:

x x x. The Court of Appeals erred in concluding that Balboa was shot frontally. First,
because the position of the gun does not necessarily indicate the position of the person
or persons holding the gun when it fired. This is especially true when two persons
were grappling for the possession of the gun when it fired, as what exactly
transpired in this case. x x x.

[The] testimony clearly demonstrates that the petitioner was on the left side of the
victim during the grappling when the gun fired. The second wound was thus inflicted
this wise: when the first shot hit Balboa, his upper body was pushed downward owing
to the knocking power of the caliber .45 pistol. But he did not let go of his grip of the
hand of petitioner and the gun, Balboa pulling the gun down as he was going
down. When the gun went off the second time hitting Balboa, the trajectory of the
bullet in Balboas body was going upward because his upper body was pushed
downward twisting to the left. It was then that Balboa let go of his grip. On cross-
examination, petitioner testified, what I noticed was that after successive shots we
separated from each other. This sequence of events is logical because the
protagonists were grappling over the gun and were moving very fast. x x x.  [26]

Presence of All the

Elements of Accident

The elements of accident are as follows: 1) the accused was at the time performing
a lawful act with due care; 2) the resulting injury was caused by mere accident; and 3)
on the part of the accused, there was no fault or no intent to cause the injury.  From the
[27]

facts, it is clear that all these elements were present. At the time of the incident,
petitioner was a member -- specifically, one of the investigators -- of the Philippine
National Police (PNP) stationed at the Iloilo Provincial Mobile Force Company. Thus, it
was in the lawful performance of his duties as investigating officer that, under the
instructions of his superior, he fetched the victim from the latters cell for a routine
interrogation.
 Again, it was in the lawful performance of his duty as a law enforcer that petitioner
tried to defend his possession of the weapon when the victim suddenly tried to remove it
from his holster. As an enforcer of the law, petitioner was duty-bound to prevent the
snatching of his service weapon by anyone, especially by a detained person in his
custody. Such weapon was likely to be used to facilitate escape and to kill or maim
persons in the vicinity, including petitioner himself.
Petitioner cannot be faulted for negligence. He exercised all the necessary
precautions to prevent his service weapon from causing accidental harm to others. As
he so assiduously maintained, he had kept his service gun locked when he left his
house; he kept it inside its holster at all times, especially within the premises of his
working area.
At no instance during his testimony did the accused admit to any intent to cause
injury to the deceased, much less kill him. Furthermore, Nicostrato Estepar, the guard in
charge of the detention of Balboa, did not testify to any behavior on the part of petitioner
that would indicate the intent to harm the victim while being fetched from the detention
cell.
The participation of petitioner, if any, in the victims death was limited only to acts
committed in the course of the lawful performance of his duties as an enforcer of the
law. The removal of the gun from its holster, the release of the safety lock, and the firing
of the two successive shots -- all of which led to the death of the victim -- were
sufficiently demonstrated to have been consequences of circumstances beyond the
control of petitioner. At the very least, these factual circumstances create serious doubt
on the latters culpability.
Petitioners Subsequent Conduct
Not Conclusive of Guilt

To both the trial and the appellate courts, the conduct of petitioner immediately after
the incident was indicative of remorse. Allegedly, his guilt was evident from the fact that
he was dumbfounded, according to the CA; was mum, pale and trembling, according to
the trial court. These behavioral reactions supposedly point to his guilt. Not necessarily
so. His behavior was understandable. After all, a minute earlier he had been calmly
escorting a person from the detention cell to the investigating room; and, in the next
breath, he was looking at his companions bloodied body. His reaction was to be
expected of one in a state of shock at events that had transpired so swiftly and ended
so regrettably.
Second Issue:
Self-Defense

Petitioner advanced self-defense as an alternative. Granting arguendo that he

intentionally shot Balboa, he claims he did so to protect his life and limb from real and
immediate danger.
Self-defense is inconsistent with the exempting circumstance of accident, in which
there is no intent to kill. On the other hand, self-defense necessarily contemplates a
premeditated intent to kill in order to defend oneself from imminent danger.
  Apparently, the fatal shots in the instant case did not occur out of any conscious or
[28]

premeditated effort to overpower, maim or kill the victim for the purpose of self-defense
against any aggression; rather, they appeared to be the spontaneous and accidental
result of both parties attempts to possess the firearm.
Since the death of the victim was the result of an accidental firing of the service gun
of petitioner -- an exempting circumstance as defined in Article 12 of the Revised Penal
Code -- a further discussion of whether the assailed acts of the latter constituted lawful
self-defense is unnecessary.
WHEREFORE, the Petition is GRANTED and the assailed
Decision REVERSED. Petitioner is ACQUITTED.
No costs.
SO ORDERED.
Sandoval-Gutierrez, Corona, and Carpio Morales, JJ., concur.

[1]
 Rollo, pp. 9-47.
[2]
 Id., pp. 49-68. Sixteenth Division. Penned by Justice B. A. Adefuin-de la Cruz (Division chair) and
concurred in by Justices Andres B. Reyes Jr. and Rebecca de Guia-Salvador (members).
[3]
 Id., p. 70.
[4]
 CA rollo, pp. 9-20.
[5]
 Written by Judge Bartolome M. Fanual.
[6]
 CA rollo, p. 8.
[7]
 Dated October 28, 1991; CA rollo, p. 8.
[8]
 Comment, pp. 2-7; rollo, pp. 77-82. Citations omitted.
[9]
 Petition, pp. 5-11; rollo, pp. 13-19. Citations omitted.
[10]
 69 SCRA 474, 479, February 27, 1976.
[11]
 CA Decision, p. 16; rollo, p. 64.
[12]
 Id., pp. 17 and 65. Italics supplied.
[13]
 CA Decision, p. 19; rollo, p. 67.
[14]
 This case was deemed submitted for decision on January 13, 2003, upon this Courts receipt of
respondents Memorandum, signed by Assistant Solicitor General Josefina C. Castillo and
Associate Solicitor Josephine D. Arias. Petitioners Memorandum, signed by Atty. Ferdinand M.
Negre and Atty. Karen O. Amurao-Dalangin, was filed on October 1, 2002.
[15]
 Petitioners Memorandum, pp. 15-16; rollo, pp. 126-127. Original in upper case.
[16]
 Borromeo v. Sun, 375 Phil. 595, October 22, 1999.
[17]
 People v. Cariquez, 373 Phil. 877, September 27, 1999. To determine accident, the following three
elements must concur: 1) the accused is performing a lawful act with due care; 2) the resulting
 injury is caused by mere accident; and 3) on the part of the accused, there is no fault or intent to
cause the injury.
[18]
 TSN, July 29, 1994, pp. 22-40. (Emphasis supplied)
[19]
 CA Decision, pp. 16-17; rollo, pp. 64-65.
[20]
 Petition, pp. 25-26; rollo, pp. 33-34.
[21]
 Supra. See 161 Phil. 611, 617, February 27, 1976, per curiam.
[22]
 Supra.
[23]
 CA Decision, p. 18; rollo, p. 66.
[24]
 TSN, supra, pp. 30-31.
[25]
 Id., p. 28. Underscoring and boldface supplied.
[26]
 Petition, pp. 27-28; rollo, pp. 35-36. Boldface in the original.
[27]
 People v. Cariquez, supra.
[28]
 In the assailed Decision, the appellate court -- while acknowledging the innate differences between
accident and self-defense, the former presupposing the lack of intention to inflict harm and the
latter assuming voluntariness induced by necessity -- nevertheless submits that the standards to
be used in determining whether the elements of one or the other are extant are one and the
same.
The Court disagrees. It is apparent from their varying definitions under the Revised Penal Code that
accident and self-defense are two different circumstances. Accident, as an exempting
circumstance, presupposes that while a crime may have been committed, no criminal is to be
held liable. Section 4 of Article 12 describes accident as an exempting circumstance as follows:
Article 12. Circumstances which are exempt from criminal liability: -- The following are exempt
from criminal liability:
x x x x x x x x x
(4) Any person who, while performing a lawful act with due care, causes an injury by
mere accident without fault or intent of causing it.
x x x x x x x x x
On the other hand, the justifying circumstance of self-defense presupposes that no crime has been
committed for which a criminal can be held liable. It is apparent, from a reading of Section 3 of
Article 11, that the law treats the justifying circumstance of self-defense as a totally different
circumstance with another set of elements, as follows:
Article 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.
x x x x x x x x x
With their differing elements, one cannot, as the appellate court erroneously did, utilize the standards
used in proving self-defense to prove whether or not under the same facts, accident is extant.