G.R. No.

L-5272             March 19, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
AH CHONG, defendant-appellant.

Gibb & Gale, for appellant.

Attorney-General Villamor, for appellee.

CARSON, J.:

The evidence as to many of the essential and vital facts in this case is limited to the testimony of the
accused himself, because from the very nature of these facts and from the circumstances
surrounding the incident upon which these proceedings rest, no other evidence as to these facts was
available either to the prosecution or to the defense. We think, however, that, giving the accused the
benefit of the doubt as to the weight of the evidence touching those details of the incident as to
which there can be said to be any doubt, the following statement of the material facts disclose by the
record may be taken to be substantially correct:

The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27," Fort Mc Kinley,
Rizal Province, and at the same place Pascual Gualberto, deceased, was employed as a house boy
or muchacho. "Officers' quarters No. 27" as a detached house situates some 40 meters from the
nearest building, and in August, 19087, was occupied solely as an officers' mess or club. No one
slept in the house except the two servants, who jointly occupied a small room toward the rear of the
building, the door of which opened upon a narrow porch running along the side of the building, by
which communication was had with the other part of the house. This porch was covered by a heavy
growth of vines for its entire length and height. The door of the room was not furnished with a
permanent bolt or lock, and occupants, as a measure of security, had attached a small hook or catch
on the inside of the door, and were in the habit of reinforcing this somewhat insecure means of
fastening the door by placing against it a chair. In the room there was but one small window, which,
like the door, opened on the porch. Aside from the door and window, there were no other openings
of any kind in the room.

On the night of August 14, 1908, at about 10 o'clock, the defendant, who had received for the night,
was suddenly awakened by some trying to force open the door of the room. He sat up in bed and
called out twice, "Who is there?" He heard no answer and was convinced by the noise at the door
that it was being pushed open by someone bent upon forcing his way into the room. Due to the
heavy growth of vines along the front of the porch, the room was very dark, and the defendant,
fearing that the intruder was a robber or a thief, leaped to his feet and called out. "If you enter the
room, I will kill you." At that moment he was struck just above the knee by the edge of the chair
which had been placed against the door. In the darkness and confusion the defendant thought that
the blow had been inflicted by the person who had forced the door open, whom he supposed to be a
burglar, though in the light of after events, it is probable that the chair was merely thrown back into
the room by the sudden opening of the door against which it rested. Seizing a common kitchen knife
which he kept under his pillow, the defendant struck out wildly at the intruder who, it afterwards
turned out, was his roommate, Pascual. Pascual ran out upon the porch and fell down on the steps
in a desperately wounded condition, followed by the defendant, who immediately recognized him in
the moonlight. Seeing that Pascual was wounded, he called to his employers who slept in the next
house, No. 28, and ran back to his room to secure bandages to bind up Pascual's wounds.

There had been several robberies in Fort McKinley not long prior to the date of the incident just
described, one of which took place in a house in which the defendant was employed as cook; and as
defendant alleges, it was because of these repeated robberies he kept a knife under his pillow for his
personal protection.

The deceased and the accused, who roomed together and who appear to have on friendly and
amicable terms prior to the fatal incident, had an understanding that when either returned at night,
he should knock at the door and acquiant his companion with his identity. Pascual had left the house
early in the evening and gone for a walk with his friends, Celestino Quiambao and Mariano Ibañez,
servants employed at officers' quarters No. 28, the nearest house to the mess hall. The three
returned from their walk at about 10 o'clock, and Celestino and Mariano stopped at their room at No.
28, Pascual going on to his room at No. 27. A few moments after the party separated, Celestino and
Mariano heard cries for assistance and upon returning to No. 27 found Pascual sitting on the back
steps fatally wounded in the stomach, whereupon one of them ran back to No. 28 and called
Liuetenants Jacobs and Healy, who immediately went to the aid of the wounded man.

The defendant then and there admitted that he had stabbed his roommate, but said that he did it
under the impression that Pascual was "a ladron" because he forced open the door of their sleeping
room, despite defendant's warnings.

No reasonable explanation of the remarkable conduct on the part of Pascuals suggests itself, unless
it be that the boy in a spirit of mischief was playing a trick on his Chinese roommate, and sought to
frightened him by forcing his way into the room, refusing to give his name or say who he was, in
order to make Ah Chong believe that he was being attacked by a robber.

Defendant was placed under arrest forthwith, and Pascual was conveyed to the military hospital,
where he died from the effects of the wound on the following day.

The defendant was charged with the crime of assassination, tried, and found guilty by the trial court
of simple homicide, with extenuating circumstances, and sentenced to six years and one
day presidio mayor, the minimum penalty prescribed by law.

At the trial in the court below the defendant admitted that he killed his roommate, Pascual Gualberto,
but insisted that he struck the fatal blow without any intent to do a wrongful act, in the exercise of his
lawful right of self-defense.

Article 8 of the Penal Code provides that —

The following are not delinquent and are therefore exempt from criminal liability:

xxx             xxx             xxx

4 He who acts in defense of his person or rights, provided there are the following attendant
circumstances:

(1) Illegal aggression.

(2) Reasonable necessity of the means employed to prevent or repel it.

(3) Lack of sufficient provocation on the part of the person defending himself.

Under these provisions we think that there can be no doubt that defendant would be entitle to
complete exception from criminal liability for the death of the victim of his fatal blow, if the intruder
who forced open the door of his room had been in fact a dangerous thief or "ladron," as the
defendant believed him to be. No one, under such circumstances, would doubt the right of the
defendant to resist and repel such an intrusion, and the thief having forced open the door
notwithstanding defendant's thrice-repeated warning to desist, and his threat that he would kill the
intruder if he persisted in his attempt, it will not be questioned that in the darkness of the night, in a
small room, with no means of escape, with the thief advancing upon him despite his warnings
defendant would have been wholly justified in using any available weapon to defend himself from
such an assault, and in striking promptly, without waiting for the thief to discover his whereabouts
and deliver the first blow.

But the evidence clearly discloses that the intruder was not a thief or a "ladron." That neither the
defendant nor his property nor any of the property under his charge was in real danger at the time
when he struck the fatal blow. That there was no such "unlawful aggression" on the part of a thief or
"ladron" as defendant believed he was repelling and resisting, and that there was no real "necessity"
for the use of the knife to defend his person or his property or the property under his charge.

The question then squarely presents it self, whether in this jurisdiction one can be held criminally
responsible who, by reason of a mistake as to the facts, does an act for which he would be exempt
from criminal liability if the facts were as he supposed them to be, but which would constitute the
crime of homicide or assassination if the actor had known the true state of the facts at the time when
he committed the act. To this question we think there can be but one answer, and we hold that under
such circumstances there is no criminal liability, provided always that the alleged ignorance or
mistake or fact was not due to negligence or bad faith.

In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to
negative a particular intent which under the law is a necessary ingredient of the offense charged
(e.g., in larcerny, animus furendi; in murder, malice; in crimes intent) "cancels the presumption of
intent," and works an acquittal; except in those cases where the circumstances demand a conviction
under the penal provisions touching criminal negligence; and in cases where, under the provisions of
article 1 of the Penal Code one voluntarily committing a crime or misdeamor incurs criminal liability
for any wrongful act committed by him, even though it be different from that which he intended to
commit. (Wharton's Criminal Law, sec. 87 and cases cited; McClain's Crim. Law, sec. 133 and cases
cited; Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32
N.Y., 509; Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.)

The general proposition thus stated hardly admits of discussion, and the only question worthy of
consideration is whether malice or criminal intent is an essential element or ingredient of the crimes
of homicide and assassination as defined and penalized in the Penal Code. It has been said that
since the definitions there given of these as well as most other crimes and offense therein defined,
do not specifically and expressly declare that the acts constituting the crime or offense must be
committed with malice or with criminal intent in order that the actor may be held criminally liable, the
commission of the acts set out in the various definitions subjects the actor to the penalties described
therein, unless it appears that he is exempted from liability under one or other of the express
provisions of article 8 of the code, which treats of exemption. But while it is true that contrary to the
general rule of legislative enactment in the United States, the definitions of crimes and offenses as
set out in the Penal Code rarely contain provisions expressly declaring that malice or criminal intent
is an essential ingredient of the crime, nevertheless, the general provisions of article 1 of the code
clearly indicate that malice, or criminal intent in some form, is an essential requisite of all crimes and
offense therein defined, in the absence of express provisions modifying the general rule, such as are
those touching liability resulting from acts negligently or imprudently committed, and acts done by
one voluntarily committing a crime or misdemeanor, where the act committed is different from that
which he intended to commit. And it is to be observed that even these exceptions are more apparent
than real, for "There is little distinction, except in degree, between a will to do a wrongful thing and
indifference whether it is done or not. Therefore carelessness is criminal, and within limits supplies
the place of the affirmative criminal intent" (Bishop's New Criminal Law, vol. 1, s. 313); and, again,
"There is so little difference between a disposition to do a great harm and a disposition to do harm
that one of them may very well be looked upon as the measure of the other. Since, therefore, the
guilt of a crime consists in the disposition to do harm, which the criminal shows by committing it, and
since this disposition is greater or less in proportion to the harm which is done by the crime, the
consequence is that the guilt of the crime follows the same proportion; it is greater or less according
as the crime in its own nature does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been
otherwise stated, the thing done, having proceeded from a corrupt mid, is to be viewed the same
whether the corruption was of one particular form or another.

Article 1 of the Penal Code is as follows:

Crimes or misdemeanors are voluntary acts and ommissions punished by law.

Acts and omissions punished by law are always presumed to be voluntarily unless the
contrary shall appear.

An person voluntarily committing a crime or misdemeanor shall incur criminal liability, even
though the wrongful act committed be different from that which he had intended to commit.

The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as used in
this article, say that a voluntary act is a free, intelligent, and intentional act, and roundly asserts that
without intention (intention to do wrong or criminal intention) there can be no crime; and that the
word "voluntary" implies and includes the words "con malicia," which were expressly set out in the
definition of the word "crime" in the code of 1822, but omitted from the code of 1870, because, as
Pacheco insists, their use in the former code was redundant, being implied and included in the word
"voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)

Viada, while insisting that the absence of intention to commit the crime can only be said to exempt
from criminal responsibility when the act which was actually intended to be done was in itself a lawful
one, and in the absence of negligence or imprudence, nevertheless admits and recognizes in his
discussion of the provisions of this article of the code that in general without intention there can be
no crime. (Viada, vol. 1, p. 16.) And, as we have shown above, the exceptions insisted upon by
Viada are more apparent than real.

Silvela, in discussing the doctrine herein laid down, says:

In fact, it is sufficient to remember the first article, which declared that where there is no
intention there is no crime . . . in order to affirm, without fear of mistake, that under our code
there can be no crime if there is no act, an act which must fall within the sphere of ethics if
there is no moral injury. (Vol. 2, the Criminal Law, folio 169.)

And to the same effect are various decisions of the supreme court of Spain, as, for example in its
sentence of May 31, 1882, in which it made use of the following language:

It is necessary that this act, in order to constitute a crime, involve all the malice which is
supposed from the operation of the will and an intent to cause the injury which may be the
object of the crime.
And again in its sentence of March 16, 1892, wherein it held that "considering that, whatever may be
the civil effects of the inscription of his three sons, made by the appellant in the civil registry and in
the parochial church, there can be no crime because of the lack of the necessary element or criminal
intention, which characterizes every action or ommission punished by law; nor is he guilty of criminal
negligence."

And to the same effect in its sentence of December 30, 1896, it made use of the following language:

. . . Considering that the moral element of the crime, that is, intent or malice or their absence
in the commission of an act defined and punished by law as criminal, is not a necessary
question of fact submitted to the exclusive judgment and decision of the trial court.

That the author of the Penal Code deemed criminal intent or malice to be an essential element of the
various crimes and misdemeanors therein defined becomes clear also from an examination of the
provisions of article 568, which are as follows:

He who shall execute through reckless negligence an act that, if done with malice, would
constitute a grave crime, shall be punished with the penalty of arresto mayor in its maximum
degree, to prision correccional in its minimum degrees if it shall constitute a less grave
crime.

He who in violation of the regulations shall commit a crime through simple imprudence or
negligence shall incur the penalty of arresto mayor in its medium and maximum degrees.

In the application of these penalties the courts shall proceed according to their discretion,
without being subject to the rules prescribed in article 81.

The provisions of this article shall not be applicable if the penalty prescribed for the crime is
equal to or less than those contained in the first paragraph thereof, in which case the courts
shall apply the next one thereto in the degree which they may consider proper.

The word "malice" in this article is manifestly substantially equivalent to the words "criminal intent,"
and the direct inference from its provisions is that the commission of the acts contemplated therein,
in the absence of malice (criminal intent), negligence, and imprudence, does not impose any criminal
liability on the actor.

The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in meaning
the word "willful" as used in English and American statute to designate a form of criminal intent. It
has been said that while the word "willful" sometimes means little more than intentionally or
designedly, yet it is more frequently understood to extent a little further and approximate the idea of
the milder kind of legal malice; that is, it signifies an evil intent without justifiable excuse. In one case
it was said to mean, as employed in a statute in contemplation, "wantonly" or "causelessly;" in
another, "without reasonable grounds to believe the thing lawful." And Shaw, C. J., once said that
ordinarily in a statute it means "not merely `voluntarily' but with a bad purpose; in other words,
corruptly." In English and the American statutes defining crimes "malice," "malicious," "maliciously,"
and "malice aforethought" are words indicating intent, more purely technical than "willful" or willfully,"
but "the difference between them is not great;" the word "malice" not often being understood to
require general malevolence toward a particular individual, and signifying rather the intent from our
legal justification. (Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases cited.)
But even in the absence of express words in a statute, setting out a condition in the definition of a
crime that it be committed "voluntarily," willfully," "maliciously" "with malice aforethought," or in one of
the various modes generally construed to imply a criminal intent, we think that reasoning from
general principles it will always be found that with the rare exceptions hereinafter mentioned, to
constitute a crime evil intent must combine with an act. Mr. Bishop, who supports his position with
numerous citations from the decided cases, thus forcely present this doctrine:

In no one thing does criminal jurisprudence differ more from civil than in the rule as to the
intent. In controversies between private parties the quo animo with which a thing was done is
sometimes important, not always; but crime proceeds only from a criminal mind. So that —

There can be no crime, large or small, without an evil mind. In other words, punishment is
the sentence of wickedness, without which it can not be. And neither in philosophical
speculation nor in religious or mortal sentiment would any people in any age allow that a
man should be deemed guilty unless his mind was so. It is therefore a principle of our legal
system, as probably it is of every other, that the essence of an offense is the wrongful intent,
without which it can not exists. We find this doctrine confirmed by —

Legal maxims. — The ancient wisdom of the law, equally with the modern, is distinct on this
subject. It consequently has supplied to us such maxims as Actus non facit reum nisi mens
sit rea, "the act itself does not make man guilty unless his intention were so;" Actus me incito
factus non est meus actus, "an act done by me against my will is not my act;" and others of
the like sort. In this, as just said, criminal jurisprudence differs from civil. So also —

Moral science and moral sentiment teach the same thing. "By reference to the intention, we
inculpate or exculpate others or ourselves without any respect to the happiness or misery
actually produced. Let the result of an action be what it may, we hold a man guilty simply on
the ground of intention; or, on the dame ground, we hold him innocent." The calm judgment
of mankind keeps this doctrine among its jewels. In times of excitement, when vengeance
takes the place of justice, every guard around the innocent is cast down. But with the return
of reason comes the public voice that where the mind is pure, he who differs in act from his
neighbors does not offend. And —

In the spontaneous judgment which springs from the nature given by God to man, no one
deems another to deserve punishment for what he did from an upright mind, destitute of
every form of evil. And whenever a person is made to suffer a punishment which the
community deems not his due, so far from its placing an evil mark upon him, it elevates him
to the seat of the martyr. Even infancy itself spontaneously pleads the want of bad intent in
justification of what has the appearance of wrong, with the utmost confidence that the plea, if
its truth is credited, will be accepted as good. Now these facts are only the voice of nature
uttering one of her immutable truths. It is, then, the doctrine of the law, superior to all other
doctrines, because first in nature from which the law itself proceeds, that no man is to be
punished as a criminal unless his intent is wrong. (Bishop's New Criminal Law, vol. 1, secs.
286 to 290.)

Compelled by necessity, "the great master of all things," an apparent departure from this doctrine of
abstract justice result from the adoption of the arbitrary rule that Ignorantia juris non
excusat ("Ignorance of the law excuses no man"), without which justice could not be administered in
our tribunals; and compelled also by the same doctrine of necessity, the courts have recognized the
power of the legislature to forbid, in a limited class of cases, the doing of certain acts, and to make
their commission criminal without regard to the intent of the doer. Without discussing these
exceptional cases at length, it is sufficient here to say that the courts have always held that unless
the intention of the lawmaker to make the commission of certain acts criminal without regard to the
intent of the doer is clear and beyond question the statute will not be so construed (cases cited in
Cyc., vol. 12, p. 158, notes 76 and 77); and the rule that ignorance of the law excuses no man has
been said not to be a real departure from the law's fundamental principle that crime exists only
where the mind is at fault, because "the evil purpose need not be to break the law, and if suffices if it
is simply to do the thing which the law in fact forbids." (Bishop's New Criminal Law, sec. 300, and
cases cited.)

But, however this may be, there is no technical rule, and no pressing necessity therefore, requiring
mistake in fact to be dealt with otherwise that in strict accord with the principles of abstract justice.
On the contrary, the maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact is,
in all cases of supposed offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed., 190.)

Since evil intent is in general an inseparable element in every crime, any such mistake of fact as
shows the act committed to have proceeded from no sort of evil in the mind necessarily relieves the
actor from criminal liability provided always there is no fault or negligence on his part; and as laid
down by Baron Parke, "The guilt of the accused must depend on the circumstances as they appear
to him." (Reg. vs. Thurborn, 1 Den. C., 387; P. vs. Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb.,
342; Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41;
P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the question as to
whether he honestly, in good faith, and without fault or negligence fell into the mistake is to be
determined by the circumstances as they appeared to him at the time when the mistake was made,
and the effect which the surrounding circumstances might reasonably be expected to have on his
mind, in forming the intent, criminal or other wise, upon which he acted.

If, in language not uncommon in the cases, one has reasonable cause to believe the
existence of facts which will justify a killing — or, in terms more nicely in accord with the
principles on which the rule is founded, if without fault or carelessness he does believe them
— he is legally guiltless of the homicide; though he mistook the facts, and so the life of an
innocent person is unfortunately extinguished. In other words, and with reference to the right
of self-defense and the not quite harmonious authorities, it is the doctrine of reason and
sufficiently sustained in adjudication, that notwithstanding some decisions apparently
adverse, whenever a man undertakes self-defense, he is justified in acting on the facts as
they appear to him. If, without fault or carelessness, he is misled concerning them, and
defends himself correctly according to what he thus supposes the facts to be the law will not
punish him though they are in truth otherwise, and he was really no occassion for the
extreme measures. (Bishop's New Criminal Law, sec. 305, and large array of cases there
cited.)

The common illustration in the American and English textbooks of the application of this rule is the
case where a man, masked and disguised as a footpad, at night and on a lonely road, "holds up" his
friends in a spirit of mischief, and with leveled pistol demands his money or his life, but is killed by
his friend under the mistaken belief that the attack is a real one, that the pistol leveled at his head is
loaded, and that his life and property are in imminent danger at the hands of the aggressor. No one
will doubt that if the facts were such as the slayer believed them to be he would be innocent of the
commission of any crime and wholly exempt from criminal liability, although if he knew the real state
of the facts when he took the life of his friend he would undoubtedly be guilty of the crime of
homicide or assassination. Under such circumstances, proof of his innocent mistake of the facts
overcomes the presumption of malice or criminal intent, and (since malice or criminal intent is a
necessary ingredient of the "act punished by law" in cases of homicide or assassination) overcomes
at the same time the presumption established in article 1 of the code, that the "act punished by law"
was committed "voluntarily."
Parson, C.J., in the Massachusetts court, once said:

If the party killing had reasonable grounds for believing that the person slain had a felonious
design against him, and under that supposition killed him, although it should afterwards
appear that there was no such design, it will not be murder, but it will be either manslaughter
or excusable homicide, according to the degree of caution used and the probable grounds of
such belief. (Charge to the grand jury in Selfridge's case, Whart, Hom., 417, 418, Lloyd's
report of the case, p.7.)

In this case, Parker, J., charging the petit jury, enforced the doctrine as follows:

A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an
outstretched arms and a pistol in his hand, and using violent menaces against his life as he
advances. Having approached near enough in the same attitude, A, who has a club in his
hand, strikes B over the head before or at the instant the pistol is discharged; and of the
wound B dies. It turns out the pistol was loaded with powder only, and that the real design of
B was only to terrify A. Will any reasonable man say that A is more criminal that he would
have been if there had been a bullet in the pistol? Those who hold such doctrine must
require that a man so attacked must, before he strikes the assailant, stop and ascertain how
the pistol is loaded — a doctrine which would entirely take away the essential right of self-
defense. And when it is considered that the jury who try the cause, and not the party killing,
are to judge of the reasonable grounds of his apprehension, no danger can be supposed to
flow from this principle. (Lloyd's Rep., p. 160.)

To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few of
which are here set out in full because the facts are somewhat analogous to those in the case at bar.

QUESTION III. When it is shown that the accused was sitting at his hearth, at night, in
company only of his wife, without other light than reflected from the fire, and that the man
with his back to the door was attending to the fire, there suddenly entered a person whom he
did not see or know, who struck him one or two blows, producing a contusion on the
shoulder, because of which he turned, seized the person and took from his the stick with
which he had undoubtedly been struck, and gave the unknown person a blow, knocking him
to the floor, and afterwards striking him another blow on the head, leaving the unknown lying
on the floor, and left the house. It turned out the unknown person was his father-in-law, to
whom he rendered assistance as soon as he learned his identity, and who died in about six
days in consequence of cerebral congestion resulting from the blow. The accused, who
confessed the facts, had always sustained pleasant relations with his father-in-law, whom he
visited during his sickness, demonstrating great grief over the occurrence. Shall he be
considered free from criminal responsibility, as having acted in self-defense, with all the
circumstances related in paragraph 4, article 8, of the Penal Code? The criminal branch of
the Audiencia of Valladolid found that he was an illegal aggressor, without sufficient
provocation, and that there did not exists rational necessity for the employment of the force
used, and in accordance with articles 419 and 87 of the Penal Code condemned him to
twenty months of imprisonment, with accessory penalty and costs. Upon appeal by the
accused, he was acquitted by the supreme court, under the following sentence:
"Considering, from the facts found by the sentence to have been proven, that the accused
was surprised from behind, at night, in his house beside his wife who was nursing her child,
was attacked, struck, and beaten, without being able to distinguish with which they might
have executed their criminal intent, because of the there was no other than fire light in the
room, and considering that in such a situation and when the acts executed demonstrated
that they might endanger his existence, and possibly that of his wife and child, more
 especially because his assailant was unknown, he should have defended himself, and in
doing so with the same stick with which he was attacked, he did not exceed the limits of self-
defense, nor did he use means which were not rationally necessary, particularly because the
instrument with which he killed was the one which he took from his assailant, and was
capable of producing death, and in the darkness of the house and the consteration which
naturally resulted from such strong aggression, it was not given him to known or distinguish
whether there was one or more assailants, nor the arms which they might bear, not that
which they might accomplish, and considering that the lower court did not find from the
accepted facts that there existed rational necessity for the means employed, and that it did
not apply paragraph 4 of article 8 of the Penal Code, it erred, etc." (Sentence of supreme
court of Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) .

QUESTION XIX. A person returning, at night, to his house, which was situated in a retired
part of the city, upon arriving at a point where there was no light, heard the voice of a man, at
a distance of some 8 paces, saying: "Face down, hand over you money!" because of which,
and almost at the same money, he fired two shots from his pistol, distinguishing immediately
the voice of one of his friends (who had before simulated a different voice) saying, "Oh! they
have killed me," and hastening to his assistance, finding the body lying upon the ground, he
cried, "Miguel, Miguel, speak, for God's sake, or I am ruined," realizing that he had been the
victim of a joke, and not receiving a reply, and observing that his friend was a corpse, he
retired from the place. Shall he be declared exempt in toto from responsibility as the author
of this homicide, as having acted in just self-defense under the circumstances defined in
paragraph 4, article 8, Penal Code? The criminal branch of the Audiencia of Malaga did not
so find, but only found in favor of the accused two of the requisites of said article, but not that
of the reasonableness of the means employed to repel the attack, and, therefore,
condemned the accused to eight years and one day of prison mayor, etc. The supreme court
acquitted the accused on his appeal from this sentence, holding that the accused was acting
under a justifiable and excusable mistake of fact as to the identity of the person calling to
him, and that under the circumstances, the darkness and remoteness, etc., the means
employed were rational and the shooting justifiable. (Sentence supreme court, March 17,
1885.) (Viada, Vol. I, p. 136.)

QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a
large stone thrown against his window — at this, he puts his head out of the window and
inquires what is wanted, and is answered "the delivery of all of his money, otherwise his
house would be burned" — because of which, and observing in an alley adjacent to the mill
four individuals, one of whom addressed him with blasphemy, he fired his pistol at one the
men, who, on the next morning was found dead on the same spot. Shall this man be
declared exempt from criminal responsibility as having acted in just self-defense with all of
the requisites of law? The criminal branch of the requisites of law? The criminal branch of
the Audiencia of Zaragoza finds that there existed in favor of the accused a majority of the
requisites to exempt him from criminal responsibility, but not that of reasonable necessity for
the means, employed, and condemned the accused to twelve months of prision
correctional for the homicide committed. Upon appeal, the supreme court acquitted the
condemned, finding that the accused, in firing at the malefactors, who attack his mill at night
in a remote spot by threatening robbery and incendiarism, was acting in just self-defense of
his person, property, and family. (Sentence of May 23, 1877). (I Viada, p. 128.)

A careful examination of the facts as disclosed in the case at bar convinces us that the defendant
Chinaman struck the fatal blow alleged in the information in the firm belief that the intruder who
forced open the door of his sleeping room was a thief, from whose assault he was in imminent peril,
both of his life and of his property and of the property committed to his charge; that in view of all the
circumstances, as they must have presented themselves to the defendant at the time, he acted in
good faith, without malice, or criminal intent, in the belief that he was doing no more than exercising
his legitimate right of self-defense; that had the facts been as he believed them to be he would have
been wholly exempt from criminal liability on account of his act; and that he can not be said to have
been guilty of negligence or recklessness or even carelessness in falling into his mistake as to the
facts, or in the means adopted by him to defend himself from the imminent danger which he believe
threatened his person and his property and the property under his charge.

The judgment of conviction and the sentence imposed by the trial court should be reversed, and the
defendant acquitted of the crime with which he is charged and his bail bond exonerated, with the
costs of both instance de oficio. So ordered.

Johnson Moreland and Elliott, JJ., concur.

Arellano, C.J., and Mapa, J., dissent.

Separate Opinions

TORRES, J., dissenting:

The writer, with due respect to the opinion of the majority of the court, believes that, according to the
merits of the case, the crime of homicide by reckless negligence, defined and punishes in article 568
of the Penal Code, was committed, inasmuch as the victim was wilfully (voluntariomente) killed, and
while the act was done without malice or criminal intent it was, however, executed with real
negligence, for the acts committed by the deceased could not warrant the aggression by the
defendant under the erroneous belief on the part of the accused that the person who assaulted him
was a malefactor; the defendant therefore incurred responsibility in attacking with a knife the person
who was accustomed to enter said room, without any justifiable motive.

By reason of the nature of the crime committed, in the opinion of the undersigned the accused
should be sentenced to the penalty of one year and one month of prision correctional, to suffer the
accessory penalties provided in article 61, and to pay an indemnify of P1,000 to the heirs of the
deceased, with the costs of both instances, thereby reversing the judgment appealed from.

G.R. Nos. 147674-75             March 17, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
ANACITO OPURAN, appellant.

DECISION

DAVIDE, JR., C.J.:

Appellant Anacito Opuran was charged with two counts of murder before the Regional Trial Court of
Catbalogan, Samar, Branch 29, for the death of Demetrio Patrimonio, Jr., and Allan Dacles under
separate informations, the accusatory portions of which respectively read:
Criminal Case No. 4693

That on or about November 19, 1998, at nighttime, at Km. 1, South Road, Municipality of
Catbalogan, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, said
accused, with deliberate intent to kill and treachery, did, then and there willfully, unlawfully, and
feloniously attack, assault and stab Demetrio Patrimonio, Jr., with the use of a bladed weapon (5"
long from tip to handle with scabbard), thereby inflicting upon the victim fatal stab wounds on the
back of his body, which wounds resulted to his instantaneous death.

All contrary to law, and with attendant qualifying circumstance of treachery.1

Criminal Case No. 4703

That on or about November 19, 1998, at nighttime, at Purok 3, Barangay 7, Municipality of

Catbalogan, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, said
accused, with deliberate intent to kill, with treachery, did, then and there, willfully, unlawfully and
feloniously attack, assault and stab one Allan Dacles, who was lying on the bench, with the use of a
bladed weapon, locally known as ‘pisao,’ thereby inflicting upon the victim fatal stab wounds on the
different parts of his body, which wounds resulted to his instantaneous death.

All contrary to law, and with attendant qualifying circumstance of treachery.2

After Anacito entered a plea of not guilty at his arraignment, trial ensued.3

The evidence for the prosecution discloses that on 19 November 1998, at about 6:30 p.m.,
prosecution witness Bambi Herrera was studying his lessons inside his house. His brother and a
certain Jason Masbang were outside sitting side by side with each other on a plastic chair; opposite
them was Allan Dacles, who was lying on a bench.4

Moments later, Jason barged into Bambi’s house, shouting: "There’s a long-haired man!" Bambi
stood up and looked through the open door. He saw appellant Anacito Opuran stab Allan on the
chest with a knife while the latter appeared to be trying to stand up from the bench. Although Allan
had several stab wounds on different parts of his body, he managed to stand up and run inside
Bambi’s house, with Anacito chasing him. Bambi immediately locked the door from the inside to
prevent Anacito from entering. But the latter tried to force the door open by thrusting a knife at the
door shutter. He also threw stones at the door. After a short while, Anacito left.5

With Anacito gone, Bambi went out to ask the aid of his neighbors so he could bring Allan to the
hospital. He saw Anacito’s two brothers and asked for their assistance. But one of them merely said:
"Never mind because he [referring to Anacito] is mentally imbalanced."6 As nobody from among his
neighbors responded to his plea for help, Bambi carried Allan on his shoulders and dragged him to
the lower portion of the neighborhood. Several persons, who were having a drinking session, helped
Bambi bring Allan to the hospital. Allan, however, died about fifteen minutes later.7

At about 7:45 p.m. of the same day, prosecution witness Tomas Bacsal, Jr., of Barangay San Pablo,
Catbalogan, Samar, was in the house of Demetrio Patrimonio, Sr., seeking medical advice from the
latter’s wife. While there, Tomas heard a commotion outside. He looked out from the balcony and
saw people running. He learned that Anacito had stabbed somebody.8

After about fifteen minutes, while Tomas was on his way home, he saw Demetrio Patrimonio, Jr. He
likewise noticed Anacito hiding in a dark place. When Demetrio Jr. reached the national highway,
near the so-called "lover’s lane," Anacito emerged from his hiding place and stabbed Demetrio Jr.
with a knife about three to four times.9

Tomas immediately ran to the house of the Demetrios to inform them of what he had just witnessed.
He then saw Demetrio Jr. running towards his parents’ house, but the latter did not make it because
he collapsed near the fence. Tomas also caught sight of Anacito running towards the direction of the
house of the Opurans. Meanwhile, Demetrio Jr. was brought by his parents to the Samar Provincial
Hospital, where he died the following day.10

Dr. Angel Tan, Medical Specialist II of the Samar Provincial Hospital, conducted an autopsy on the
cadavers of Allan and Demetrio Jr. He found five stab wounds on Allan’s body, one of which was
fatal because it affected the upper lobe of the right lung and bronchial vessel.11 Demetrio Jr.
sustained four stab wounds and died of pulmonary failure due to hypovolemia from external and
internal hemorrhage.12

For its part, the defense presented, as its first witness, the appellant himself, Anacito Opuran. He
declared that on the evening of 19 November 1998, he was resting in their house in Canlapwas,
another barangay in Catbalogan, Samar. He never went out that night. While he was sleeping at
about 8:30 p.m., eight policemen entered his house, pointed their guns at him, and arrested him. He
was brought to the police station and detained there until the following morning. He denied being
present at the place and time of the stabbing incidents. He admitted knowing Demetrio Jr. as a
distant relative and friend whom he had not quarreled with. As for Allan, he never knew him. He had
no misunderstanding with prosecution witness Bambi Herrera. He asserted that the accusations
against him were fabricated because he was envied and lowly regarded by his accusers.13

Subsequent hearings were postponed owing principally to the failure of the defense to present
witnesses. Then on 16 February 2000, the defense moved for the suspension of the hearing on the
following grounds: (1) on 10 January 2000, upon motion of the defense, the trial court issued an
Order authorizing the psychiatric examination of Anacito; (2) in consonance with that Order, Anacito
underwent a psychiatric examination on 26 January 2000 conducted by Dr. Angel P. Tan; (3) Dr.
Tan issued a Medical Certificate dated 26 January 2000 stating that Anacito had a "normal" mental
status on that date but was "suffering from some degree of Mental Aberration," which required
further psychiatric evaluation at Tacloban City.14

The trial court thus ordered a deferment of the hearing and granted the motion for the psychiatric
examination of Anacito at the Eastern Visayas Regional Medical Center (EVRMC), Tacloban City.15

On 3 August 2000, the trial court received the Medical Report of Dr. Lyn Verona, physician-
psychiatrist of the EVRMC, on the psychiatric examination she conducted on Anacito. At the
resumption of the hearings on 20 November 2000, Dr. Verona testified that she examined Anacito
three times through interviews. From her interview with Anacito’s sister, Remedios Opuran
Manjeron, she learned of Anacito’s psychiatric history of "inability to sleep and talking irrelevantly."
She found that Anacito had a psychotic disorder characterized by flight of ideas and auditory
hallucinations. She confirmed her medical findings that Anacito was psychotic before and during the
commission of the crime and even up to the present so that he could not stand trial and would need
treatment and monthly check-up. Her diagnosis was that Anacito was suffering from schizophrenia.16

Remedios Opuran Manjeron testified that she brought his brother Anacito to the National Center for
Mental Health (NCMH), Mandaluyong, in 1986 because Anacito had difficulty sleeping and was
talking "irrelevantly."17 Anacito was treated as an out-patient, and was prescribed thorazine and
evadyne.18 They stayed in Manila for one month. In 1989, they returned to the NCMH, and Anacito
was prescribed the same medicine. Since they could not afford to stay long in Manila for follow-up
treatments, Remedios requested that her brother be treated in Catbalogan. Dr. Belmonte of the
NCMH, however, referred them to the EVRMC. Sometime in 1990, Remedios accompanied Anacito
to the EVRMC for examination. A certain Dra. Peregrino prescribed an injectable medicine. But it
was a certain Dr. Estrada of the NCMH who came to Catbalogan to administer the medicine in that
same year. Since then until the year 2000, Anacito did not take any medicine, nor was he subjected
to examination or treatment.19

Anacito’s other sibling, Francisco Opuran, testified that at about 6:00 p.m. of 19 November 1998, he
heard a loud voice outside their house. Anacito heard also the loud voices and then went out. When
Francisco went out to verify, he did not see anything. A few minutes later he saw Anacito at the
corner of the street carrying a knife. He surmised that Anacito had committed a crime, and so he
hugged him. Anacito struggled to free himself, but Francisco brought him to Remedios’ house.
Before the incident, he observed Anacito to be "sometimes laughing, shouting, and uttering bad
words, and sometimes silent."20

In its decision21 of 23 January 2001, the trial court found Anacito guilty of murder for the death of
Demetrio Patrimonio, Jr., and homicide for the death of Allan Dacles. It decreed:

WHEREFORE, the Court Finds Anacito Opuran y Balibalita GUILTY beyond reasonable doubt of the
crimes specified hereunder, to wit:

Murder, in Criminal Case No. 4693, and sentences him to the penalty of reclusion perpetua, to
indemnify the heirs of Demetrio Patrimonio, Jr. in the amount of ₱50,000.00 plus ₱43,500.00 by way
of actual damages, and to pay the costs; and

Homicide, in Criminal Case No. 4703, and, applying the Indeterminate Sentence Law, sentences
him to suffer an imprisonment ranging from ten (10) years of prision mayor, as minimum, to
seventeen (17) years and four (4) months of reclusion temporal, as maximum to indemnify the heirs
of Allan Dacles in the amount of ₱50,000.00 plus ₱10,000.00 for burial expenses and to pay the
costs.

Anacito seasonably appealed to us from the decision attributing to the trial court grave error in
disregarding the exempting circumstance of insanity.22 He contends that he was suffering from a
psychotic disorder and was, therefore, completely deprived of intelligence when he stabbed the
victims. Even assuming in gratis argumenti that he is criminally liable, he is entitled to the mitigating
circumstance under paragraph 9, Article 13 of the Revised Penal Code, which is "illness as would
diminish the exercise of the willpower of the offender without however depriving him of the
consciousness of his acts." He likewise maintains that since treachery was not specifically alleged in
the Information as a qualifying circumstance, he cannot be convicted of murder for the death of
Demetrio Jr.

The Office of the Solicitor General (OSG) disagrees and avers that Anacito failed to establish with
the required proof his defense of insanity or his claim of the mitigating circumstance of diminished
willpower. The mental state of Anacito, as testified to by Dr. Verona, corresponds to the period after
the stabbing incidents. Further, Dr. Verona was certain that Anacito was not grossly insane, but she
was uncertain that Anacito was "unconscious" at the time he stabbed the two victims. The OSG also
argues that treachery was duly alleged and proved by the prosecution and should, therefore, be
treated as a qualifying circumstance in the killing of Demetrio Jr.

We agree with the OSG and affirm the trial court’s judgment.
In the determination of the culpability of every criminal actor, voluntariness is an essential element.
Without it, the imputation of criminal responsibility and the imposition of the corresponding penalty
cannot be legally sanctioned. The human mind is an entity, and understanding it is not purely an
intellectual process but is dependent to a large degree upon emotional and psychological
appreciation. A man’s act is presumed voluntary.23 It is improper to assume the contrary, i.e. that
acts were done unconsciously,24 for the moral and legal presumption is that every person is
presumed to be of sound mind,25 or that freedom and intelligence constitute the normal condition of a
person.26 Thus, the presumption under Article 800 of the Civil Code is that everyone is sane. This
presumption, however, may be overthrown by evidence of insanity, which under Article 12(1) of the
Revised Penal Code exempts a person from criminal liability.27

He who pleads the exempting circumstance of insanity bears the burden of proving it,28 for insanity
as a defense is in the nature of confession and avoidance.29 An accused invoking insanity admits to
have committed the crime but claims that he is not guilty because he is insane. The testimony or
proof of an accused's insanity must, however, relate to the time immediately preceding or
coetaneous with the commission of the offense with which he is charged.30 It is, therefore, incumbent
upon accused’s counsel to prove that his client was not in his right mind or was under the influence
of a sudden attack of insanity immediately before or at the time he executed the act attributed to
him.31

Since insanity is a condition of the mind, it is not susceptible of the usual means of proof. As no man
can know what is going on in the mind of another, the state or condition of a person's mind can only
be measured and judged by his behavior.32 Thus, the vagaries of the mind can only be known by
outward acts, by means of which we read the thoughts, motives, and emotions of a person, and then
determine whether the acts conform to the practice of people of sound mind.33

Insanity is evinced by a deranged and perverted condition of the mental faculties which is
manifested in language and conduct.34 However, not every aberration of the mind or mental
deficiency constitutes insanity.35 As consistently held by us, "A man may act crazy, but it does not
necessarily and conclusively prove that he is legally so."36 Thus, we had previously decreed as
insufficient or inconclusive proof of insanity certain strange behavior, such as, taking 120 cubic
centimeters of cough syrup and consuming three sticks of marijuana before raping the
victim;37 slurping the victim’s blood and attempting to commit suicide after stabbing him;38 crying,
swimming in the river with clothes on, and jumping off a jeepney.39

The stringent standard established in People v. Formigones40 requires that there be a complete

deprivation of intelligence in committing the act, i.e., the accused acted without the least discernment
because of a complete absence of the power to discern or a total deprivation of the will.

In People v. Rafanan, Jr.,41 we analyzed the Formigones standard into two distinguishable tests: (a)
the test of cognition – whether there was a "complete deprivation of intelligence in committing the
criminal act" and (b) the test of volition – whether there was a "total deprivation of freedom of the
will." We observed that our case law shows common reliance on the test of cognition, rather than on
the test of volition, and has failed to turn up any case where an accused is exempted on the sole
ground that he was totally deprived of the freedom of the will, i.e., without an accompanying
"complete deprivation of intelligence." This is expected, since a person’s volition naturally reaches
out only towards that which is represented as desirable by his intelligence, whether that intelligence
be diseased or healthy.42

Establishing the insanity of an accused often requires opinion testimony which may be given by a
witness who is intimately acquainted with the accused; has rational basis to conclude that the
accused was insane based on his own perception; or is qualified as an expert, such as a
psychiatrist.43

Let us examine the evidence offered to support Anacito’s defense of insanity. The appellant points to
the testimony of prosecution witness Bambi Herrera that Anacito was a silent man who would
sharply stare at the lady boarders a few days before the stabbing incident, and would wear Barong
Tagalog and long pants when there was no occasion requiring a formal attire. The appellant also
highlights that the testimony of prosecution witness Tomas Bacsal, Jr., that there was a 15-minute
time interval between the two stabbing incidents shows that the stabbing spree was without any
known motive.44

The testimonial evidence of the defense also attempted to prove the alleged behavioral oddity of
Anacito two to three days prior to the killing. His sister Remedios noticed that his eyes were reddish
and that he was angry with her.45 His brother Francisco also observed that he (Anacito) would
sometimes talk to himself, laugh, shout, and utter bad words, and , at times, he was just quiet.46 Also
relied upon by the appellant are the testimony of Remedios on his psychiatric history and the expert
testimony of the EVRMC psychiatrist, Dr. Verona.

A careful scrutiny of the records, however, indicates that Anacito failed to prove by clear and
convincing evidence the defense of insanity. For one thing, it was only Bambi’s personal perception
that there was no reason or occasion for Anacito to wear Barong Tagalog. Tested against the
stringent criterion for insanity to be exempting, such deportment of Anacito, his occasional silence,
and his acts of laughing, talking to himself, staring sharply, and stabbing his victims within a 15-
minute interval are not sufficient proof that he was insane immediately before or at the time he
committed the crimes. Such unusual behavior may be considered as mere abnormality of the mental
faculties, which will not exclude imputability.47

Anacito’s psychiatric history likewise fails to meet the stringent yardstick established by case law.
What it shows is that Anacito was prescribed thorazine and evadyne, and later an injectable
medicine to remedy "his lack of sleep and noisiness." As the trial court noted, it was never shown
that these drugs were for a mental illness that deprived Anacito of reason. Further, Anacito was just
an out-patient at the NCMH, EVRMC, and Samar Provincial Hospital. While Remedios claimed that
she requested the confinement of Anacito and that the doctors did not refuse her, the fact remains
that Anacito was never confined in a mental institution. Although Dr. Verona testified that there was
a recommendation for Anacito’s confinement, there was no indication in the records as to when the
recommendation was made, who made the recommendation, and the reason for the
recommendation.48

At any rate, in People v. Legaspi,49 we discarded the confinement of the accused at the NCMH prior
to the incident in question to be by itself proof of his insanity, there being no proof that he was
adjudged insane by the institute. Applying this principle to Anacito’s case, we find another cogent
reason to reject his plea of insanity.

The records are likewise clear that Anacito was not subjected to treatment from 1991 until 1999.
While Remedios insisted that the medicine prescribed for Anacito ran out of stock allegedly in 1990,
there was no proof that Anacito needed the medicine during that period. In fact, there was no
intimation that he needed the medicine prior to the stabbing incident. She bought medicine for
Anacito only in April 2000 because he was "again noisy in the jail."50 It seems that it was only after
the stabbing incident, when he was in jail, that his symptoms reappeared.
Moreover, as found by the trial court, the results of Dr. Verona’s examinations on Anacito were
based on incomplete or insufficient facts.51 For one thing, she admitted to have examined Anacito for
only three sessions lasting one to two hours each.52 Her one-page medical report53 reads in part:

Patient came in accompanied by policemen and sister. He was fairly kempt in appearance, wearing
blue shirt and pants. Mesomorphic, dark complexion with earring on the left ear. Had flight of ideas,
with auditory hallucination, "kabastosan," "kanan yawa." He further said his sleep was "minanok" and
complained of occasional headache. He had no delusion. Judgment and insight fair. Fair impulse
control.

Comments:

From the foregoing interviews and examinations, it is determined that the patient has a psychiatric
disorder. It is most likely that the patient is psychotic before and during the commission of the crime.
He is presently psychotic and cannot stand trial. He would need treatment and monthly check-up.

We observe that Dr. Verona’s conclusions have no supporting medical bases or data. She failed to
demonstrate how she arrived at her conclusions. She failed to show her method of testing.54 Further,
she did not have Anacito’s complete behavioral and psychiatric history. On the witness stand, she
mentioned that Anacito could not distinguish right from wrong, but she was not certain that he was
not conscious of killing his victims in 1998. She also declared that Anacito had a diagnostic case of
schizophrenia, but stated in the next breath that Anacito was not grossly insane.55

Truly, there is nothing that can be discerned from Dr. Verona’s short psychiatric evaluation report
and her testimony that Anacito’s judgment and mental faculties were totally impaired as to warrant a
conclusion that his mental condition in 1998 when he killed his victims was the same in 2000 when
he was psychiatrically examined. The most that we can conclude is that her findings refer to the
period after the stabbing accident and, hence, would prove Anacito’s mental condition only for said
time. It could be that Anacito was insane at the time he was examined by Dr. Verona. But, in all
probability, insanity could have been contracted during the period of his detention pending trial. He
was without contact with friends and relatives most of the time. He was perhaps troubled by his
conscience, by the realization of the gravity of his offenses, or by the thought of a bleak future for
him. The confluence of these circumstances may have conspired to disrupt his mental equilibrium.

It must be stressed that an inquiry into the mental state of an accused should relate to the period
immediately before or at the precise moment of the commission of the act which is the subject of the
inquiry.56 His mental condition after that crucial period or during the trial is inconsequential for
purposes of determining his criminal liability.57

Interestingly, Anacito failed to raise insanity at the earliest opportunity. He invoked it for the first time
in the year 2000 and only after he had already testified on his defenses of alibi and denial. It has
been held that the invocation of denial and alibi as defenses indicates that the accused was in full
control of his mental faculties.58 Additionally, the trial judge observed that, during the hearings,
Anacito was attentive, well-behaved, and responsive to the questions propounded to him. Thus, the
shift in theory from denial and alibi to a plea of insanity, made apparently after the appellant realized
the futility of his earlier defenses, is a clear indication that insanity is a mere concoction59 or an
afterthought.60 In any event, Anacito failed to establish by convincing evidence his alleged insanity at
the time he killed Demetrio Jr. and Allan Dacles. He is thus presumed sane, and we are constrained
to affirm his conviction.61

We likewise reject the alternative plea of Anacito that he be credited with the mitigating circumstance
of diminished willpower. In the cases where we credited this mitigating circumstance after rejecting a
plea of insanity, it was clear from the records that the accused had been suffering from a chronic
mental disease that affected his intelligence and willpower for quite a number of years prior to the
commission of the act he was being held for.62 The situation does not exist in the cases at bar. It was
only in 2000 that Anacito was diagnosed as "psychotic" with flight of ideas and auditory
hallucinations and was found to be schizophrenic. There is nothing on record that he had these
symptoms the previous years or at the time he stabbed the victim. Curiously, Dr. Verona did not
make a diagnosis of schizophrenia in her report, only at the witness stand.

We agree with the trial court that treachery cannot be appreciated as far as the killing of Allan is
concerned because the sole eyewitness did not see the commencement of the assault.63 For
treachery to be considered, it must be present and seen by the witness right at the inception of the
attack. Where no particulars are known as to how the killing began, the perpetration with treachery
cannot be supposed.64

Treachery was correctly appreciated in the killing of Demetrio Jr. Anacito was lying in wait for his
victim in a dark place at the national highway. When Demetrio Jr. reached the "lover’s lane," Anacito
emerged from his hiding place and stabbed the former several times. Anacito’s attack came without
warning; it was deliberate and unexpected, affording the hapless, unarmed, and unsuspecting victim
no opportunity to resist or defend himself.65

We do not find merit in appellant’s contention that he cannot be convicted of murder for the death of
Demetrio Jr. because treachery was not alleged with "specificity" as a qualifying circumstance in the
information. Such contention is belied by the information itself, which alleged: "All contrary to law,
and with the attendant qualifying circumstance of treachery." In any event, even after the recent
amendments to the Rules of Criminal Procedure, qualifying circumstances need not be preceded by
descriptive words such as qualifying or qualified by to properly qualify an offense.66

We, therefore, sustain the penalty imposed by the trial court on Anacito. For the crime of murder,
which is punishable by reclusion perpetua to death, he was correctly sentenced to suffer reclusion
perpetua, the lower of the two indivisible penalties, since there was no other aggravating
circumstance attending the commission of the crime. For the crime of homicide, which is punishable
by reclusion temporal, he may be sentenced to an indeterminate penalty whose minimum is within
the range of prision mayor and whose maximum is within the range of reclusion temporal in its
medium period, there being no modifying circumstances.

Coming now to the matter of damages. While Demetrio Sr. testified that he spent ₱43,500 for the
wake and burial of his son, only ₱11,94567 is substantiated by receipts. Hence, in lieu of actual
damages we shall award to Demetrio Jr.’s heirs temperate damages68 of ₱25,00069 conformably with
current jurisprudence.70

As to the burial expenses for Allan, his father Alfredo Dacles testified that he spent ₱10,000.
However, he failed to present receipts to substantiate his claim. Nevertheless, we also grant
temperate damages in the amount of ₱10,000 on the ground that it was reasonable to expect that
the family of the victim incurred expenses for the coffin, wake, and burial.

The award of civil indemnity of ₱50,000 for the respective heirs of Demetrio Jr. and Allan is affirmed
in line with recent jurisprudence.71 Civil indemnity is mandatory and is granted to the heirs of the
victim without need of proof other than the commission of the crime.72

Apart from the civil indemnity, we shall award in favor of the heirs of each victim moral damages in
the amount of ₱50,000 consistent with controlling case law.73 Moral damages are awarded despite
the absence of proof of mental and emotional suffering of the victim’s heirs. As borne out by human
nature and experience, a violent death invariably and necessarily brings about emotional pain and
anguish on the part of the victim’s family.74

We shall also award in favor of the heirs of Demetrio Jr. exemplary damages in the amount of
₱25,000 in view of the presence of the qualifying aggravating circumstance of treachery.75

Thus, Anacito shall indemnify the heirs of Demetrio Patrimonio, Jr., damages in the total amount of
₱161,945 and the heirs of Allan damages in the total amount of ₱110,000.

WHEREFORE, we AFFIRM, with modifications as to the damages, the Decision of the Regional
Trial Court of Catbalogan, Samar, Branch 29, finding appellant Anacito Opuran guilty of the crimes
of murder in Criminal Case No. 4693 and homicide in Criminal Case No. 4703, and sentencing him
to suffer reclusion perpetua and an indeterminate penalty of ten (10) years of prision mayor, as
minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum,
respectively. Apart from the ₱50,000 civil indemnity, he is ordered to pay (1) the heirs of Demetrio
Patrimonio, Jr., in the amounts of (a) ₱50,000 as moral damages; (b) ₱25,000 as temperate
damages; and (c) ₱25,000 as exemplary damages, or a total of ₱150,000; and (2) the heirs of Allan
Dacles in the amounts of (a) ₱50,000 as moral damages; and (b) ₱10,000 as temperate damages,
or a total of ₱110,000.

Costs de oficio.

SO ORDERED.

Ynares-Santiago, Carpio, and Azcuna, JJ., concur.

Panganiban, J., on official leave.

Footnotes

1
 Original Record (OR), Vol. I, 1; Rollo, 14.

2
 OR, Vol. II, 1; Rollo, 16.

3
 TSN, 11 May 1999, 2-3.

4
 Id., 13-14.

5
 Id., 14-17; TSN, 12 May 1999, 6-7, 14-16.

6
 TSN, 12 May 1999, 2-3;

7
 Id., 3-5.

8
 Id., 30-32.

9
 Id., 32-36.
10
 Id., 42-44.

 Exhibit "E," Folder of Exhibits for the Prosecution, Criminal Case No. 4703, 2; TSN, 21
11

June 1999, 6-7.

 Exhs. "B" and "C," Folder of Exhibits for the Prosecution, Criminal Case No. 4693, 2-3;
12

TSN, 21 June 1999, 3-10.

13
 TSN, 8 September 1999, 6-16.

14
 OR, Vol. II, 28-36.

15
 OR, Vol. II, 37.

16
 TSN, 20 November 2000, 3-21.

17
 TSN, 11 December 2000, 4-5.

18
 Id., 6-7, 15; Exh. "1."

19
 TSN, 11 December 2000, 9-11, 15-17, 20-22.

20
 TSN, 16 January 2001, 7-9.

21
 OR, Vol. I, 54-55; Rollo, 37-38.

22
 Rollo, 89-106.

 U.S. v. Gloria, 3 Phil. 333 (1904); People v. Talavera, G.R. No. 139967, 19 July 2001, 361
23

SCRA 433.

 U.S. v. Guevara, 27 Phil. 547 (1914); People v. Tagasa, 68 Phil. 147 (1939);People v.
24

Cruz, 109 Phil. 288 (1960); People v. Aldemita, G.R. Nos. L-55033-34, 13 November 1986,
145 SCRA 451; People v. Antonio, G.R. No. 144266, 27 November 2002.

 People v. Bascos, 44 Phil. 204 (1922);People v. Morales, G.R. No. L-44096, 20 April 1983,
25

121 SCRA 426.

26
 People v. Sia Teb Ban, 54 Phil. 52 (1929).

27
 People v. Renegado, G.R. No. L-27031, 31 May 1974, 57 SCRA 275.

 People v. Pambid, G.R. No. 124453, 15 March 2000, 328 SCRA 158; See also People v.
28

So, G.R. No. 104664, 28 August 1995, 247 SCRA 708; People v. Tabugoca, G.R. No.
125334, 28 January 1998, 285 SCRA 312; People v. Condino, G.R. No. 130945, 19
November 2001, 369 SCRA 325.

 People v. Ambal, G.R. No. L-52688, 17 October 1980, 100 SCRA 325; People v. Danao,
29

G.R. No. 96832, 19 November 1992, 215 SCRA 795; People v. Bañez, G.R. No. 125849 20
January 1999, 301 SCRA 248; People v. Yam-id, 368 Phil. 131 (1999).
  People v. Aquino, G.R. No. 87084, 27 June 1990, 186 SCRA 851, 861; See also People v.
30

Diaz, G.R. No. 130210, 8 December 1999, 320 SCRA 168; People v. Domingo, G.R. No.
138453, 29 May 2002, 382 SCRA 581.

31
 People v. Austria, G.R. Nos. 111517-19, 31 July 1996, 260 SCRA 106.

32
 People v. Madarang, G.R. No. 132319, 12 May 2000, 332 SCRA 99.

 People v. Bonoan; 64 Phil 87, 93 (1937); People v. Dungo, G.R. No. 89420, 31 July 1991,
33

199 SCRA 860; People v. Valledor, G.R. No. 129291, 3 July 2002, 383 SCRA 653, 660-661.

34
 People v. Villa, G.R. No. 129899, 27 April 2000, 331 SCRA 142.

 People v. Medina, G.R. No. 113691, 6 February 1998, 286 SCRA 44; People v. Magallano,
35

No. L-32978, 30 October 1980, 100 SCRA 570.

 People v. Valledor, supra note 33; People v. So, supra note 28;

36

People v. Ambal, supra note 29.

37
 People v. Aquino, supra note 30, at 863.

38
 People v. Yam-id, supra note 29.

39
 People v. Valledor, supra note 33, at 661.

 87 Phil. 658 (1950). See also People v. Ambal, supra note 29; People v.

40

Renegado, supra note 27; People v. Cruz, supra note 24.

41
 G.R. No. 54135, 21 November 1991, 204 SCRA 65.

42
 See also People v. Medina, supra note 35.

43
 People v. Madarang, supra note 32.

44
 Rollo, 99-103; See TSN, 12 May 1999, 9-10.

45
 TSN, 11 December 2000, 11.

46
 TSN, 16 January 2001, 7.

 People v. Madarang, supra note 32; People v. Estrada, G.R. No. 130487, 19 June 2000,

47

333 SCRA 699; People v. Formigones, supra note 40.

48
 TSN, 20 November 2000, 24.

 People v. Legaspi, G.R. Nos. 136164-65, 20 April 2001, 357 SCRA 234. See People v.
49

Guardo, No. L-42965, 3 December 1987, 156 SCRA 152.

50
 TSN, 11 December 2000, 22.
51
 People v. Villa, supra note 34.

52
 TSN, 20 November 2000, 21.

53
 Exh. "1," Folder of Exhibits for the Defense, 1.

54
 People v. Villa, supra note 34; People v. Medina, supra note 35.

55
 TSN, 20 November 2000, 11, 20-21.

56
 People v. Aquino, supra note 30, at 861.

57
 People v. Villa, supra note 34; People v. Valledor, supra note 33.

58
 People v. Ocfemia, G.R. No. 126135, 25 October 2000, 344 SCRA 315.

 People v. Amamangpang, G. R. No. 108491, 2 July 1998, 291 SCRA 638; People v.
59

Pambid, supra note 28; People v. Ocfemia, supra.

60
 People v. Mengote, G.R. No. 130491, 25 March 1999, 305 SCRA 380.

61
 People v. Robiños, G.R. No. 138453, 29 May 2002, 382 SCRA 581.

 People v. Puno, G. R. No. L- 33211, 29 June 1981, 105 SCRA 151; People v.
62

Antonio, supra note 24; People v. Rafanan, supra note 41.

63
 People v. Ancheta, G.R. Nos. 138306-07, 21 December 2001, 372 SCRA 753.

64
 People vs. Sayaboc, G.R. No. 147201, 15 January 2004.

65
 People v. Quinicio, G.R. No. 142430, 13 September 2001, 365 SCRA 252.

 People v. Aquino, G.R. Nos. 144340-42, 6 August 2002, 386 SCRA 391; People v.
66

Sayaboc, supra note 64.

67
 Exhs. "G" and "H," Folder of Exhibits for the Prosecution, Crim. Case No. 4703, 4-5.

68
 Art. 2224, Civil Code, which provides: "Temperate or moderate damages, which are more
than nominal but less than compensatory damages, may be recovered when the court finds
that some pecuniary loss has been suffered but its amount cannot, from the nature of the
case, be proved with certainty."

 Art. 2225, Civil Code, which provides: "Temperate damages must be reasonable under the
69

circumstances."

70
 People v. Baño, G.R. No. 148710, 15 January 2004.

 People v. Panida, G.R. Nos. 127125 and 138952, 6 July 1999, 310 SCRA 66, 98; People
71

v. Bonito, G.R. No. 128002, 10 October 2000, 342 SCRA 405, 428; People v. Rabanal, G.R.
 146687, 22 August 2002, 387 SCRA 685; People v. Belaong, G.R. No. 138615, 18
September 2002, 389 SCRA 337.

72
 People v. Manlansing, G. R. Nos. 131736-37, 11 March 2002, 378 SCRA 685.

 People v. Pardua, 412 Phil. 456 (2001); People v. Ereño, G.R. No. 124706, 22 February
73

2000, 326 SCRA 157, 169; People v. Rabanal, G.R. No. 146687, 22 August 2002, 387
SCRA 685.

 People v. Panado, G.R. No. 133439, 26 December 2000, 348 SCRA 679, 691; People v.
74

Caraig, G.R. Nos. 116224-27, 28 March 2003; People v. Mallari, G.R. No. 145993, 17 June
2003; People v. Baño, supra note 70.

 People v. Mallari, G.R. No. 145993, 17 June 2003; People v. Manansala, G.R. No. 147149,
75

9 July 2003.

G.R. No. L-45964             April 25, 1939

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RESTITUTO FALLER (alias R. Aguilar), defendant-appellant.

L. D. Lockwood for appellant.

Office of the Solicitor-General Tuason for appellee.

AVANCEÑA, C. J.:

Restituto Faller was charged with the crime of damage caused to another's property maliciously and
willfully. After hearing the evidence, the Court of First Instance of Rizal found that the damage was
not cause maliciously of and willfully, but through reckless imprudence, and sentenced Restituto
Faller, under paragraph 3 of article 365 of the Revised Penal Code, as principal in the crime of
damage through reckless imprudence, to pay a fine of P38 and to indemnify the offended party
Ramon Diokno in the same amount, with subsidiary imprisonment in case of insolvency. From this
decision, an appeal was taken.

In this instance the appellant assigns as sole error of the court the fact that he was sentenced for a
crime with which he was not charged, contending that a crime maliciously and willfully committed is
different from that committed through reckless imprudence.

The court has not committed this error. The appellant was convicted of the same crime of damage to
property with which he is charged. Reckless imprudence is not a crime in itself. It is simply a way of
committing it and merely determines a lower degree of criminal liability. The information alleges that
the appellant acted willfully, maliciously, unlawfully and criminally. To this information no objection
was interposed. Negligence being a punishable criminal act when it results in a crime, the allegation
in the information that the appellant also committed the acts charged unlawfully and criminally
includes the charge that he acted with negligence.

The appealed judgment is affirmed, with the costs to the appellant. So ordered.
Villa-Real, Imperial, Diaz, and Moran, JJ., concur.

Separate Opinions

LAUREL, J., concurring in the result:

If malicious mischief (art. 327, Revised Penal Code) is an offense distinct from damage to property
by reckless imprudence (art. 365, Revised Penal Code) and the latter is not necessarily included in
the former or the situation does not call for the application of other exceptions laid down by this
court, the conviction of the accused under article 365 of the Revised Penal Code, notwithstanding
his prosecution under article 327 thereof, was erroneous. An accused is entitled to be informed of
the nature and cause of the accusation against him (par. 17, sec. 1, Art. III, Constitution of the
Philippines, in relation to section 15, par. 2, and section 6, par. 3, of General Orders, No. 58), and for
this purpose the law requires that a complaint or information must charge but one offense, subject to
a single exception (sec. II, General Orders, No. 58). There are two reasons, however, why the
decision of the lower court should be affirmed. First, because the constitutional and legal purpose
has been amply served in this case, it appearing that the accused himself, in the course of the trial,
put up the defense that he was at most responsible for the offense of damage to property by
reckless imprudence. This is apparent from the following portion of the decision of the lower court:

La defensa del acusado, que por cierto no declaro, se hace descansar en el hecho, primero,
que el sitio donde tuvo lugar la coalicion entre el truck y el automovil mencionado es de muy
estrecha dimension, y que no es extraño que ocurriese lo que acaecio. Otra cuestion es la
de que no cabe condenar al aqui acusado con daños a la propiedad bajo el articulo 327 del
Codigo Penal Revisado, sino a lo sumo por daños a la propiedad por imprudencia temeraria,
porque no costa que el acusado habia obrado deliberadamente, esto es, con malicia, y en
tercer lugar, se ha discutido principalmente la cuantia de los daños, pues, segun la defensa,
estos no debieran montar a mas de diez pesos.

En cuanto al primera punto de la defensa se vuelve contra el mismo acusado, pues

precisamente por ser estrecha la rampa del puente debio obrar con mayor cuidado antes de
hacer andar el autobus; en cuanto al segundo punto, concurrimos con la defensa de que no
procede aplicar al presente caso las disposiciones del capitulo noveno del Codigo Penal
Revisado referente a daños. . . .

Secondly, assuming that the two offenses here are dinstinct, I think that they are at least akin to
each other so as to justify the application of the rule laid down in United States vs. Solis (7 Phil.,
195), and United States vs. Quevengco (2 Phil., 412), On these grounds, I concur in the result.

[G.R. No. L-6641. July 28, 1955.]

FRANCISCO QUIZON, Petitioner, v. THE HON. JUSTICE OF THE PEACE OF

BACOLOR, PAMPANGA, ET AL., Respondents.

Moises Sevilla Ocampo and Pedro S. David for Petitioner.

 Solicitor General Juan R. Liwag and Assistant Solicitor General Francisco
Carreon for Respondents.

SYLLABUS

1. JURISDICTION OF JUSTICE OF THE PEACE COURTS; DAMAGE TO PROPERTY

THROUGH RECKLESS IMPRUDENCE; MALICIOUS MISCHIEF. — The justice of the peace
court has no jurisdiction to try the offense of damage to property through reckless
negligence or imprudence if the amount of the damage is P125; it is the Court of First
Instance which has jurisdiction.

2. ID.; ID.; ID. — Damage to property through reckless negligence is not a variant of
malicious mischief. "Malicious mischief", as used in sec. 87, par. 6, of the Judiciary Act,
has exclusive reference to the willful and deliberate crimes described in arts. 327 to 331
of the Revised Penal Code, and to no other.

DECISION

REYES, J.B.L., J.:

On December 19, 1952, the respondent Chief of Police of Bacolor, Pampanga, filed a
criminal complaint against the herein petitioner, Francisco Quizon, with the Justice of
the Peace Court of said municipality charging Quizon with the crime of damage to
property through reckless imprudence, the value of the damage amounting to P125.00.
Quizon filed a motion to quash on the ground that, under Article 365 of the Revised
Penal Code, the penalty which might be imposed on the accused would be a fine or
from P125.00 to P375.00, which is in excess of the fine that may be imposed by the
justice of the peace court. The Justice of the Peace forwarded the case to the Court of
First Instance of Pampanga, but the latter returned it to him for trial on the merits,
holding that the justice of the peace court had jurisdiction. The defendant appealed
from this ruling of the Court of First Instance to this Court on the question of law
raised.

Section 44 of the Judiciary Act of 1948 (Republic Act No. 296) provides in part as
follows:jgc:chanrobles.com.ph

"Original jurisdiction. — Courts of First Instance shall have original jurisdiction: jgc:chanrobles.com.ph

"(f) In all criminal cases in which the penalty provided by law is imprisonment for more
than six months, or a fine of more than two hundred pesos:"

Sections 87 of said Acts reads as follows: jgc:chanrobles.com.ph

"Original jurisdiction to try criminal cases. — Justices of the peace and judges of
municipal courts of chartered cities shall have original jurisdiction over:jgc:chanrobles.com.ph
"(c) All criminal cases arising under the laws relating to: chanrob1es virtual 1aw library

(6) Malicious mischief;."

In the cases of People v. Palmon, 86 Phil., 350; People v. Peñas y Ferrer and Rey y
Rochas, 86 Phil., 596; and Natividad, Et. Al. v. Robles, 87 Phil., 834, it was held that in
the cases provided for in Section 87 (c) of the Judiciary Act of 1948 above quoted, the
jurisdiction given to justices of the peace and judges of the municipal courts is not
exclusive but concurrent with the courts of first instance, when the penalty to be
imposed is more than six months imprisonment or a fine of more than P200.00.

The question, therefore, is whether the justice of the peace court has concurrent
jurisdiction with the court of First Instance when the crime charged is damage to
property through reckless negligence or imprudence if the amount of the damage is
P125.

We believe that the answer should be in the negative. To hold that the Justice of the
Peace Court has jurisdiction to try cases of damage to property through reckless
negligence, because it has jurisdiction over cases of malicious mischief, is to assume
that the former offense is but a variant of the latter. This assumption is not legally
warranted.

Article 327 of the Revised Penal Code is as follows: jgc:chanrobles.com.ph

"ART. 327. Who are liable for malicious mischief. — Any person who shall deliberately
cause to the property of another any damage not falling within the terms of the next
preceding chapter shall be guilty of malicious mischief."

It has always been regarded of the essence of this felony that the offender should have
not only the general intention to carry out the felonious act (a feature common to all
willful crimes) but that he should act under the impulse of a specific desire to inflict
injury to another; "que en el hecho concurra animo especifico de dañar" (Cuello Calon,
Der. Penal [6th Ed. ] Vol. II, p. 869; Sent. of Tribunal Supremo of Spain, 21 Dec. 1909;
12 Feb. 1921).

"El elemento interno de este delito require, ademas de la voluntad de ejecutar el hecho
dañoso y de la conciencia de su ilegitimidad, el animo de perjudicar, la intencion de
dañar. Si no existe semejante animo el hecho no constituye delito." (II Cuello Calon, p.
870-871).

The necessity of the special malice for the crime of malicious mischief is contained in
the requirement of Art. 327 of our Revised Penal Code, already quoted, that the
offender "shall deliberately cause to the property of another any damage not falling
within the terms of the next preceding chapter", i.e., not punishable as arson. It follows
that, in the very nature of things, malicious mischief can not be committed through
negligence, since culpa (negligence) and malice (or deliberateness) are essentially
incompatible. Hence, the Supreme Court of Spain in its decisions of 12 Feb. 1912, 7
Oct. 1931, 13 Nov. 1934 and 5 Oct. 1942, has expressly recognized that this crime is
one of those that can not be committed by imprudence or negligence.
The proposition (inferred from Art. 3 of the Revised Penal Code) that "reckless
imprudence" is not a crime in itself but simply a way of committing it and merely
determines a lower degree of criminal liability" is too broad to deserve unqualified
assent. There are crimes that by their structure can not be committed through
imprudence: murder, treason, robbery, malicious mischief, etc. In truth, criminal
negligence in our Revised Penal Code is treated as a mere quasi offense, and dealt with
separately from willful offenses. It is not a mere question of classification or
terminology. In international crimes, the act itself is punished; in negligence or
imprudence, what is principally penalized is the mental attitude or condition behind the
act, the dangerous recklessness, lack of care or foresight, the imprudencia punible.
Much of the confusion has arisen from the common use of such descriptive phrases as
"homicide through reckless imprudence," and the like; when the strict technical offense
is, more accurately, "reckless imprudence resulting in homicide" ; or "simple
imprudence causing damages to property."

Were criminal negligence but a modality in the commission of felonies, operating only
to reduce the penalty therefor, then it would be absorbed in the mitigating
circumstances of Art. 13, specially the lack of intent to commit so grave a wrong as the
one actually committed. Furthermore, the theory would require that the corresponding
penalty should be fixed in proportion to the penalty prescribed for each crime when
committed willfully. For each penalty for the willful offense, there would then be a
corresponding penalty for the negligent variety. But instead, our Revised Penal Code
(Art. 365) fixes the penalty for reckless imprudence at arresto mayor maximum, to
prision correccional minimum, if the willful act would constitute a grave felony,
notwithstanding that the penalty for the latter could range all the way from prision
mayor to death, according to the case. It can be seen that the actual penalty for
criminal negligence bears no relation to the individual willful crime, but is set in relation
to a whole class, or series, of crimes.

It is difficult to believe that the Legislature, in giving Justices of the Peace jurisdiction to
try cases of malicious mischief, did so in total disregard of the principles and
considerations above outlined. Our conclusion is that "malicious mischief" as used in
Section 87, par. 6, of the Judiciary Act, has exclusive reference to the willful and
deliberate crimes described in Arts. 327 to 331 of our Revised Penal Code, and to no
other offense.

A further reason for this restrictive interpretation of the term "malicious mischief" used
in section 87 of the Judiciary Act, is that the same constitutes an exception to the
general jurisdiction of the Justice of the Peace Courts in criminal cases, which had
always stood prior to the said Act at offenses punishable with not more than 6 months’
imprisonment or a fine of not more than P200.00 or both. To this traditional
jurisdiction, the Judiciary Act added eight (8) specific exceptions in the form of felonies
triable in said courts without reference to the penalty imposable; and malicious mischief
is one of these exceptions, while imprudence resulting in damage to property is not one
of them.

For the foregoing reasons, we declare that the jurisdiction over the offense in question
lies exclusively in the Court of First Instance. Hence, the writ of certiorari is granted
and the order of remand to the Justice of the Peace Court is reversed and set aside.
Without pronouncement as to costs.

Bengzon, Padilla, Bautista Angelo, Labrador and Concepcion, JJ., concur.

Separate Opinions

MONTEMAYOR, J., concurring: chanrob1es virtual 1aw library

There is no question that the offense of malicious mischief, that is to say, causing
damage to another’s property willfully and for the sake of causing injury, because of
hate, revenge or other evil motive (Art. 327, Revised Penal Code), is much more
serious than damage to property without intent or malice but through negligence (Art.
365, Revised Penal Code). If the Justice of the peace court has jurisdiction, as Republic
Act 296, Sec. 87 gives him, to try and decide cases of malicious mischief, logically and
with more reason, it should also be allowed to try and decide cases of the less serious
offense of damage to property through negligence. Actually, however, under the law,
this is not always so. Under Art. 365, in damage to property thru negligence, "the
offender shall be punished by a fine ranging from an amount equal to the value of the
damage to three times such value." In the present case, the value of the damage is
P125 and three times that amount would be P375 which is beyond the P200.00 which a
justice of the peace court may impose as fine in criminal cases. For this reason,
although I am not convinced of the wisdom and rationale of the law in this respect, I
vote with the majority because the law is on its side.

REYES, A., J., concurring: chanrob1es virtual 1aw library

While it may not be good law to invest municipal and justice of the peace courts with
"original jurisdiction" over criminal cases involving damage to property where the
damage was deliberately cause, but not where the damage was the result of mere
negligence, I am constrained to concur in the majority opinion, because our duty is to
apply the law as we find it and not as we think it should be.

The law has extended the criminal jurisdiction of the above- mentioned courts to cases
of "malicious mischief," but not to cases of damage to property resulting from mere
negligence. We should not legislate by arbitrarily considering the latter as
comprehended in the former. The two are essentially different. Damage to property
constitutes "malicious mischief" only when the object of the perpetrator is "injury of the
property merely for the sake of damaging it." (U. S. v. Generale Et. Al., 4 Phil. 216.) It
would be an incongruity to apply the term to cases of damages to property where that
object is lacking, as where the damage was due to mere negligence.

I therefore vote to grant the writ.

JUGO, J., dissenting: chanrob1es virtual 1aw library

The majority opinion seems to hold that there is no crime of damage to property
through reckless negligence, for the reason that in the crime of damage to property
there should be malice or deliberate intent to cause it. If that is so, then why remand
the case at the court of first instance? If there is no such crime neither the court of first
instance nor the justice of the peace court can punish it. The result would be that the
numerous crimes committed almost daily of damage to property through reckless
negligence would go unpunished. Reckless negligence alone without any damage is not
penalized by the Penal Code. Article 327 of the Penal Code provides "Any person who
shall deliberately cause to the property of another any damage not falling within the
terms of the next preceding chapter, shall be guilty of malicious mischief. "That does
not mean that a person who causes damage to property, without deliberate intent,
could not commit it through reckless negligence, for the deliberate intent to commit a
crime is common to all crimes.

Article 3 of the Revised Penal Code defines crimes as follows: jgc:chanrobles.com.ph

"Acts and omissions punishable by law are felonies (delitos).

"Felonies are committed not only by means of deceit (dolo) but also by means of fault
(culpa).

"There is deceit when the act is performed with deliberate intent; and there is fault
when the wrongful act results from imprudence, negligence, lack of foresight, or lack of
skill."

In the present case damage to property was committed through culpa "imprudence,
negligence, lack of foresight, or lack of skill." We should not be mislead by the word
"malicious" in the phrase "malicious mischief" for that is only a translation of the word
"daños" as used in the Spanish text which governs. (People v. Abilong, 46 Off. Gaz.,
1012.) The drafter of Article 327 of the Revised Penal Code in using the word
"malicious" in the phrase "malicious mischief" did not add anything to the general
concept of crimes as defined in Article 3, but may have used the word "mischief" simply
to distinguish it from damages which may give rise only to civil liability. However that
may be, it is clear that he referred to damage in general which may be committed with
deliberate intent or through reckless negligence.

In the case of People v. Faller, 67 Phil., 529, it was held by this Court through Chief
Justice Avanceña that a person accused of malicious mischief may be convicted of
damage to property through reckless negligence. If the latter crime is essentially
different from malicious mischief, then the accused could not have been convicted of it.

For the above reasons, I dissent.

G.R. No. 163927             January 27, 2006

ALFONSO D. GAVIOLA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION
CALLEJO, SR., J.:

Before the Court is a petition for review of the Decision1 of the Court of Appeals (CA) in CA-G.R. CR
No. 24413 affirming the ruling2 of the Regional Trial Court (RTC) of Nava, Biliran, Branch 16, in
Criminal Case No. N-1901, where petitioner Alfonso Gaviola was convicted of qualified theft.

The antecedents are as follows:

On May 25, 1954, Elias Gaviola filed a complaint against Eusebio Mejarito in the then Court of First
Instance of Carigara, Leyte, for quieting of title with a plea for injunctive relief. The suit involved a
40,500-square-meter parcel of coconut land located in Barrio Calbani, Maripipi, Leyte, identified as
Cadastral Lot 1301 and covered by Tax Declaration (TD) No. 743.3 The case was docketed as Civil
Case No. 111. Eusebio, for his part, claimed ownership over the property.

On July 29, 1955, the trial court ordered the dismissal of the complaint and declared Eusebio the
lawful owner of the property. The dispositive portion of the decision reads:

WHEREFORE, for the foregoing, the Court renders judgment dismissing the plaintiffs’ complaint and
declaring the defendants the absolute owners and entitled to the possession of the disputed land.
The preliminary injunction which was granted by this Court through Judge Lorenzo Carlitos is
ordered dissolved, with costs against the plaintiffs.

SO ORDERED.4

The decision became final and executory. On September 3, 1955, the trial court ordered the sheriff
to place Eusebio in possession of the property.5 The sheriff complied with the order on December
19, 1958.6

In the meantime, Eusebio died intestate and was survived by his son, Cleto. Elias Gaviola also died
intestate and was survived by his son, Alfonso.

Almost 30 years thereafter, on October 1985, Cleto filed a complaint against Alfonso and four others
for recovery of possession of a parcel of land and execution of judgment in Civil Case No. 111. The
property involved was located on the north of Lot 1301 and covered by TD No. 1546. The case was
docketed as Civil Case No. B-0600.

The plaintiff therein alleged that the houses of the defendants were located in the property that had
been adjudicated to his father, Eusebio Mejarito, in Civil Case No. 111. He prayed that the court
issue judgment as follows:

a) Ordering [the] immediate execution of judgment in Civil Case No. 111, against defendants
Segundo Gaviola and Alfonso Gaviola;

b) Ordering all defendants evicted from any portion of the land they presently occupy as
residential;

c) Ordering all defendants to pay rent in favor of the plaintiff with legal interests imposed
reckoned from June 1984 until full payment of what is due and/or until their complete and
absolute eviction from their respective residences which rent liabilities when computed
annually for each of them is in the sum of PESOS: THREE THOUSAND SIX HUNDRED
(P3,600.00), Philippine Currency;
 d) Ordering defendants to pay plaintiff jointly and severally the sum of PESOS: THIRTY
THOUSAND (P30,000.00), Philippine Currency, representing moral damages;

e) Ordering defendants to pay plaintiff jointly and severally the sum of PESOS: TWENTY-
FIVE THOUSAND (P25,000.00), Philippine Currency, representing attorney’s fee and
litigation expenses.

Plaintiff prays for such relief and other remedies as may be just and equitable in the premises.7

In their answer to the complaint, the defendants averred that the property in which their houses were
located is different from that which was adjudicated by the court in Civil Case No. 111 to Eusebio
Mejarito.

The parties could not agree on the identification and metes and bounds of the parcel of land claimed
and owned by the plaintiff and those claimed and owned by the defendants. This impelled the court
to appoint Bienvenido Ricafort, the Officer-in-Charge of the sub-office of the Provincial Assessor, as
Commissioner, to resurvey the property subject of the complaint. A sketch of the property was
prepared, indicating the location of the plaintiff’s lot (Lot 1301) and the parcel of land where the
house of Gaviola stood (Lot 1311). The Commissioner also prepared a report8 stating that the
property adjudicated to Eusebio Mejarito in Civil Case No. 111 was Cadastral Lot No. 1301, while
that which belonged to Elias Gaviola was Cadastral Lot No. 1311; and the old one-storey house of
defendant Alfonso Gaviola was located in the latter lot. The defendant did not object to the report.9

On May 4, 1990, the court rendered judgment in favor of the defendants in Civil Case No. B-0600
and ordered the complaint dismissed. The court ruled that the parcels of land occupied by the
defendants, inclusive of Lot 1311, were different from the property adjudicated to Eusebio Mejarito in
Civil Case No. 111, which is actually Lot 1301. The court also ruled that the plaintiff had no cause of
action for the execution of the court’s decision in Civil Case No. 111 because such decision had long
been enforced, per report of the sheriff.10

Eusebio appealed the decision to the CA which rendered judgment on September 18, 1992,
affirming the decision of the RTC.11 The appellate court declared that the house of Alfonso Gaviola
was located in Lot 1311 covered by TD 1611 under the name of Elias Gaviola. Cleto filed a petition
for review on certiorari with this Court, which was denied due course in a Resolution12 dated March
24, 1993. Thus, the CA decision became final and executory. The trial court issued a writ of
execution, a copy of which Sheriff Ludenilo S. Ador served on the defendants on August 5, 1993.13

In the meantime, Cleto Mejarito left the Philippines and stayed in the United States of America. He
entrusted the land to the care of his nephew, Rafael Lozano.

At 7:00 a.m. on September 6, 1997, Jovencio Mejarito, a nephew of Cleto Mejarito, and a barangay
councilman, saw Gavino Gaviola, Rodrigo Gaviola and Domingo Caingcoy climbing the coconut
trees in Lot 1301. Under the supervision of the spouses Alfonso and Leticia Gaviola, they

gathered 1,500 coconuts worth P3,000.00 from the coconut trees.14 The Officer-in-Charge of the
Maripipi Police Station then filed a criminal complaint for qualified theft against the spouses Gaviola
and those who gathered the coconuts in the municipal trial court.15 In the meantime, the coconuts
were entrusted to the care of the barangay captain.

On February 6, 1998, an Information was filed with the RTC of Naval, Biliran, against the spouses
Alfonso and Leticia Gaviola for qualified theft. The accusatory portion of the decision reads:
That on or about the 6th day of September 1997, at around 9 o’clock in the morning at Brgy.
Calbani, Municipality of Maripipi, Province of Biliran, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and confederating with one another, and
with intent to gain, did then and there unlawfully, feloniously, deliberately took, harvested and
gathered one thousand five hundred (1,500) coconut fruits from the plantation of Cleto Mejarito
without the consent and authority of the latter, to the damage and prejudice of the owner amounting
to P3,000.00.

Contrary to Law.16

Alfonso admitted that the coconuts were taken upon his instructions, but insisted that the trees from
which they were taken were planted on Lot 1311, the property he had inherited from his father, Elias
Gaviola; the property of private complainant Cleto Mejarito, Lot 1301, was adjacent to his lot. Alfonso
testified that the property was placed in his possession by the sheriff since August 5, 1993, and that
since then he had been gathering coconuts every three months without being confronted or
prosecuted by anybody.17 He insisted that his claim was based on the decision of the RTC in Civil
Case No. B-0600, which was affirmed by the CA.18

On April 13, 2000, the RTC rendered judgment convicting Alfonso of qualified theft. The fallo of the
decision reads:

WHEREFORE, this Court finds the accused Alfonso Gaviola y Dimakiling guilty beyond reasonable
doubt of the crime of qualified theft; hereby imposing upon him the indeterminate penalty of
imprisonment from Five (5) Years, Five (5) Months and Ten (10) days of prision correccional,
maximum period, as the minimum, to Eight (8) Years and One (1) day of prision mayor, minimum, as
the maximum.

The accused shall pay the private complainant Cleto Mejarito, through his duly authorized
representative, exemplary damages in the amount of P20,000.00 and liquidated damages in the
amount of P3,000.00.

SO ORDERED.19

The trial court ruled that the accused took the coconuts from the coconut trees planted on Cadastral
Lot 1301 which was owned by Cleto Mejarito, and not on his own property, Lot 1311, as he claimed.

Alfonso Gaviola appealed the decision to the CA which rendered judgment, on October 1, 2003,
affirming the decision of the RTC. He then filed a motion for reconsideration of the decision, which
the appellate court denied.

Alfonso, now the petitioner, raises the following issues in the instant petition: (1) whether the
prosecution proved beyond reasonable doubt that he had intent to gain when the coconuts were
taken upon his instruction; and (2) whether he is liable for exemplary and liquidated damages.

On the first issue, petitioner avers that the prosecution failed to prove animus lucrandi (intent to gain)
on his part. He asserts that he had been taking coconuts from the property in broad daylight three
times a year since August 5, 1993 on his honest belief that he was the owner of the land where the
coconut trees were planted. He points out that it was only after he took coconuts on September 6,
1997 that he was charged of qualified theft.
Moreover, his honest belief that he owned the land negates intent to steal, an essential element of
the felony of theft. He argues that the RTC in Civil Case No. B-0600 declared him to be the owner of
the property where the coconut trees were planted; the property was placed in his possession by the
sheriff and, since then, he had planted bananas and gathered coconuts from the coconut trees.

In its comment on the petition, the Office of the Solicitor General avers that the decision of the RTC,
which was affirmed by the CA, is in accord with the evidence on record. The OSG maintains that
under the decision of the then CFI in Civil Case No. 111, the RTC in Civil Case No. B-0600 and that
of the CA affirming on appeal the RTC ruling, the owner of Lot 1301, the property from which the
coconuts were taken, was Eusebio Mejarito, the private complainant’s father.

We rule against the petitioner.

Article 308 of the Revised Penal Code defines theft as follows:

Art. 308. Who are liable for theft.– Theft is committed by any person who, with intent to gain but
without violence, against or intimidation of persons nor force upon things, shall take personal
property of another without the latter’s consent.

Theft is likewise committed by:

1. Any person who, having found lost property, shall fail to deliver the same to the local
authorities or to its owner;

2. Any person who, after having maliciously damaged the property of another, shall remove
or make use of the fruits or objects of the damage caused by him; and

3. Any person who shall enter an enclosed estate or a field where trespass is forbidden or
which belongs to another and without the consent of its owner, shall hunt or fish upon the
same or shall gather fruits, cereals, or other forest or farm products.20

Thus, the elements of theft are: (1) that there be taking of personal property; (2) that said property
belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without
the consent of the owner; and (5) that the taking be accomplished without the use of violence
against or intimidation of persons or force upon things.21

The provision was taken from Article 530 of the Spanish Penal Code which reads:

1. Los que con ánimo de lucrarse, y sin violencia o intimidación en las personas ni fuerza en
las cosas, toman las cosas muebles ajenas sin la voluntad, de su dueño.

2. Los que encontrándose una cosa perdida y sabiendo quién es su dueño se la apropiaren
con intencion de lucro.

3. Los dañadores que sustrajeren o utilizaren los frutos u objeto del daño causado, salvo los
casos previstos en los artículos 606, num. 1., 2. y 3; 608, num. 1; 610, num. 1.; 611;613;
segundo párrafo del 617 y 618. (Art. 437 del Cod. Penal de 1850. – Art. 379, Cdo. Franc. –
Art. 331, Codigo Brasil. – Art. 151, Cod. Austr. – Arts. 461 y 508, Cod. Belg. – Art. 242, Cod.
Alem. – Arts. 422 y 423, Cod. Port. – Art. 402, Cod. Ital.)22
According to Article 310 of the Revised Penal Code, theft is qualified if coconuts are taken from the
premises of a plantation:

Art. 310. Qualified theft. – The crime of theft shall be punished by the penalties next higher by two
degrees than those respectively specified in the next preceding article, if committed by a domestic
servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or
large cattle or consists of coconuts taken from the premises of a plantation, fish taken from a
fishpond or fishery or if property is taken on the occasion of fire, earthquake, typhoon, volcanic
eruption, or any other calamity, vehicular accident or civil disturbance.

For one to be guilty of theft, the accused must have an intent to steal (animus furandi) personal
property, meaning the intent to deprive another of his ownership/lawful possession of personal
property which intent is apart from, but concurrent with the general criminal intent which is an
essential element of a felony of dolo (dolos malus). The animo being a state of the mind may be
proved by direct or circumstantial evidence, inclusive of the manner and conduct of the accused
before, during and after the taking of the personal property. General criminal intent is presumed or
inferred from the very fact that the wrongful act is done since one is presumed to have willed the
natural consequences of his own acts. Likewise, animus furandi is presumed from the taking of
personal property without the consent of the owner or lawful possessor thereof. The same may be
rebutted by the accused by evidence that he took the personal property under a bona fide belief that
he owns the property.23

In Black v. State,24 the State Supreme Court of Alabama ruled that the open and notorious taking,
without any attempt at concealment or denial, but an avowal of the taking, raises a strong
presumption that there is no animus furandi. But, if the claim is dishonest, a mere pretense, taking
the property of another will not protect the taker:

xxx "In all cases where one in good faith takes another’s property under claim of title in himself, he is
exempt from the charge of larceny, however puerile or mistaken the claim may in fact be. And the
same is true where the taking is on behalf of another, believed to be the true owner. Still, if the claim
is dishonest, a mere pretense, it will not protect the taker."

The gist of the offense is the intent to deprive another of his property in a chattel, either for gain or
out of wantonness or malice to deprive another of his right in the thing taken. This cannot be where
the taker honestly believes the property is his own or that of another, and that he has a right to take
possession of it for himself or for another, for the protection of the latter.25

In Charles v. State,26 the State Supreme Court of Florida ruled that the belief of the accused of his
ownership over the property must be honest and in good faith and not a mere sham or pretense.

In the present case, the trial court found the petitioner’s claim of having acted in the honest belief
that he owned Lot 1301 when he ordered the harvesting of the coconuts barren of probative weight.
The trial court ruled that the petitioner even admitted in Civil Case No. B-0600 that the private
complainant’s property was separate from his:

The accused have put up a defense of ownership although from the records of Civil Case No. B-
0600, Alfonso Gaviola, et al., thru their counsel admitted that from the evidence of Cleto Mejarito
especially Exh. "E," Writ of Execution, it appears that the decision was already executed on
December 22, 1958.

Further admitted that:

"The southern boundary of the land of Elias Gaviola (Alfonso) is stated as Melecio Gaviola. Actually
the land of Melecio Gaviola is now owned by plaintiff (Cleto Mejarito), the land having been
adjudicated to his predecessor-in-interest Eusebio Mejarito by virtue of Civil Case No. 111 (Exh. "A")
(See also Exh. "6," Tax Declaration No. 3437, reverse side).

Alfonso Gaviola could not have made a mistake to extricate themselves from the ejectment, Cleto
Mejarito wanted to pursue in Civil Case No. B-0600.

They submitted a well entrenched analyses as they concluded further; to quote:

"Finally, that these three parcels of lands are separate and distinct from each other is confirmed by
the cadastral survey were the lands of plaintiff (Cleto Mejarito), of Elias Gaviola (Alfonso) and of
Segunda Gaviola, are denominated as Cadastral Lot Nos. 1301, 1311 and 1303, respectively. Not
only that, their definite locations and boundaries are even delineated in the sketch prepared by the
court-appointed commissioner, which sketch is now marked as Exhibits "H" and series"
(Memorandum of defendants Gaviolas dated April 13, 1989, in Civil Case No. B-0600).

The general rule is that a judicial admission is conclusive upon the party making it and does not
require proof; except when it is shown that the admission was made through palpable mistake and
(2) when shown that no such admission was in fact made. (Atillo III vs. C.A. 266 SCRA 596).27

The findings of the RTC were affirmed by the appellate court. The well-entrenched rule is that the
findings of facts of the trial court, affirmed by the appellate court, are conclusive on this Court,
absent any evidence that the trial court and the appellate court ignored, misconstrued, or
misinterpreted cogent facts and circumstances of substance which, if considered, would warrant a
modification or reversal of the outcome of the case. We have reviewed the records and find no
justification to modify, much less reverse, the findings of the trial and appellate courts.

The petitioner cannot feign ignorance or even unfamiliarity with the location, identity and the metes
and bounds of the private complainant’s property, Lot 1301, vis-à-vis that of his own, Lot 1311.
Indeed, in his Memorandum in Civil Case No. B-0600, petitioner as one of the defendants below,
categorically stated:

From the above enumeration or statement of boundaries, it is clear that these three parcels of land
are distinct and separate from each other, as the following observations can be made:

1. land of plaintiff and Elias (Alfonso) Gaviola:

a. Both have the same northern boundary: Isabela Mejarito. But the same can be
explained by the fact that sometime in 1934 Isabela Mejarito, through Pastor
Armoela, sold the land now owned by Elias (Alfonso) Gaviola to him. See Ex. "15." In
fact, the first time that the land bought by Elias Gaviola was declared in his name
was in 1935 in Tax Dec. No. 2839 (Exh. "14") which cancelled in part Tax Dec. No.
1942 (Exh. "16") in the name of Isabela Mejarito.

What caused the confusion (identical northern boundary of the lands of plaintiff and
Elias Gaviola) was that the northern boundary (Isabela Mejarito) of the land of
plaintiff was not adjusted accordingly despite the sale. It should have been changed
to Elias Gaviola to reflect the sale.
 b. The southern boundary of the land of Elias Gaviola (Alfonso) is stated as Melecio
Gaviola. Actually the land of Melecio Gaviola is now owned by plaintiff the land
having been adjudicated to his predecessor-in-interest Eusebio Mejarito by virtue of
Civil Case No. 111 (Exhibit "A") (See also Exh. "6," Tax Dec. No. 3437, reverse side)

2. land of plaintiff and Hermenegildo (Segundo) Gaviola:

a. The eastern boundary of the land of plaintiff is stated as "Hermenegildo Gaviola,"

father and predecessor-in-interest of defendant Segundo Gaviola;

b. The western boundary of the land of Hermenegildo Gaviola (Exh. "31-A") was

previously declared as Melecio Gaviola. But after the case (Civil Case No. 111, Exh.
"A"), it was changed to "Eusebio Mejarito," predecessor-in-interest of plaintiff by
virtue of said case. (Exh. "31-A" and "30-A."

So it is now clear that the land of plaintiff is west of the land of Hermenegildo Gaviola (now Segundo
Gaviola), and that they are two distinct and separate lands.

Indeed, that the lands of plaintiff, of Elias Gaviola (father of defendant Alfonso), and of defendant
Segundo Gaviola (now, but Hermenegildo Gaviola before) are separate and distinct from each other
is shown by the fact that they have been covered by different sets of tax declarations since as early
as 1906. It should be noted that the tax declarations that cover each land do not merge with,
overlap, or cancel, each other. There appear apparent minor discrepancies but they can easily be
explained by two events: the sale of a portion of the land of Isabela Mejarito to Elias Gaviola and the
decision in Civil Case No. 111. If these two events are considered, these apparent discrepancies
vanish into thin air.

Finally, that these three parcels of lands are separate and distinct from each other is confirmed by
the cadastral survey where the lands of plaintiff, of Elias Gaviola and of Segundo Gaviola, are
denominated as Cadastral Lot Nos. 1301, 1311 and 1303, respectively. Not only that, their definite
locations and boundaries are even delineated in the sketch prepared by the court-appointed
commissioner, which sketch is now marked as Exhs. "H" and series, of plaintiff. Also, the report to
which the sketch is attached even states that the house of defendant Alfonso Gaviola is located on
the land of Elias Gaviola; and while said report enumerates the houses located on the land of
plaintiff, neither the house of defendant Alfonso Gaviola nor of defendant Segundo Gaviola nor of
the other defendants are among those mentioned therein.28

Moreover, petitioner’s land is residential, while that of the private complainant is coconut land. There
are no coconut trees in the lot owned by petitioner, nor is there evidence that he planted coconut
trees on private complainant’s property at any time, believing that it was his own land. Petitioner
could thus not have mistaken the property of the private complainant for that of his own.

We further note that petitioner failed to adduce evidence to corroborate his claim that, prior to
September 6, 1997, he had gathered coconuts from the coconut trees on the private complainant’s
property three times a year, and that the latter or his caretaker was aware thereof but failed to
remonstrate.

In United States v. Villacorta,29 the Court debunked the claim of the appellant therein that he should
not be held criminally liable for theft (larceny) for honestly believing that he owned the land from
which he took the paddy. That case is on all fours with the present case, in that there was also a
court ruling declaring the private complainant therein as the owner of the land on which the paddy
grew. The Court therein ratiocinated as follows:
The attorney for the appellant in this court attempts to show that the defendant could not be guilty of
larceny, even though it be admitted that he took and carried away the paddy in question, for the
reason that he claimed to be the owner of the land. That question had been decided against him by
a court of competent jurisdiction and he made no objection to said decision. After that decision he
could no longer claim that he was the owner of the land from which he took and carried away the
paddy, and moreover, it was shown during the trial of the cause that Domingo Corpus, by his
laborers, had actually planted the paddy upon the land in question. It is difficult to understand upon
what theory the defendant could justify his claim that he was the owner of the paddy, after a final
decision had been rendered against him to the contrary, and when it was clearly proven that he had
not even planted it. The paddy had been planted by Domingo Corpus upon land which a court of
competent jurisdiction decided belonged to him and had been harvested by him and piled upon the
land at the time the defendant entered the land and took and carried it away. The defendant neither
planted the paddy nor reaped it. The court decided, before he took and carried away the paddy, that
the land belonged to Domingo Corpus. The defendant must have known that the paddy did not
belong to him. In view of the litigation, he must have known to whom it did belong.30

In fine, we find and so hold that the petitioner’s claim of good faith in taking the coconuts from the
private complainant’s land is a mere pretense to escape criminal liability.

We rule that there is factual and legal bases for the award of P20,000.00 by way of exemplary
damages. Under Article 223031 of the New Civil Code, exemplary damages may be awarded when
the crime was committed with one or more aggravating circumstances. In this case, the petitioner is
guilty not only of simple theft but of qualified theft.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. Costs against the
petitioner.

SO ORDERED.

ROMEO J. CALLEJO, SR.

Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson

CONSUELO YNARES-SANTIAGO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Asscociate 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 Court’s Division.
ARTEMIO V. PANGANIBAN
Chief Justice

Footnotes

 Penned by Associate Justice Jose L. Sabio, Jr., with Associate Justices Delilah Vidallon-
1

Magtolis (retired) and Hakim S. Abdulwahid, concurring; rollo, pp. 20-26.

2
 Penned by Judge Enrique C. Asis; id. at 35-43.

3
 Records, pp. 167-171.

4
 Id. at 11.

5
 Id. at 55.

6
 Id. at 145.

7
 Id. at 123.

8
 Id. at 164-166.

9
 Id. at 133.

10
 Id. at 92-96.

11
 Id. at 77-88.

12
 Id. at 89.

13
 Id. at 152.

14
 TSN, 8 April 1999, pp. 3-4.

15
 Records, p. 1.

16
 Id. at 224.

17
 TSN, 18 August 1999, pp. 14-15.

18
 Exhibits "4" and "5," id. at 258 and 273.

19
 Id. at 332-333.

20
 Emphasis supplied.
 21
 L.B. Reyes, the revised penal code, book II (1981), 668.

22
 Viada, codigo penal reformado de 1870, concordado y comentado, 219.

The felony has the following elements:

(1) Apoderamiento de usa cosa mueble; (2) Que la cosa mueble sea ajena; (3) Que
el apoderamiento se verifique con intención de lucro; (4) Que se tome la cosa sin la
voluntad de su dueño; (5) Que se realice el apoderamiento de la cosa sin violencia
intimidación en las personas ni fuerza en las cosas (Viada, 220-221).

23
 Bullard v. State, 53 S.W. 637 (1899); Dean v. State, 26 So. 638 (1899).

24
 3 So. 814 (1888).

25
 Baker v. State, 17 Fla. 406 (1879).

26
 18 So. 369 (1895).

27
 Records, pp. 329-330.

28
 Records, pp. 160-161.

29
 30 Phil. 108 (1915).

30
 Id. at 110-111.

 Art. 2230. In criminal offenses, exemplary damages as a part of the civil liability may be
31

imposed when the crime was committed with one or more aggravating circumstances. Such
damages are separate and distinct from fines and shall be paid to the offended party.

G.R. No. 174461               September 11, 2013

LETICIA I. KUMMER, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

BRION, J.:

We decide the appeal tiled by petitioner Leticia I. Kummer assailing the April 28, 2006 decision1 of
the Court of Appeals (CA) in CA-G.R. CR No. 27609. The CA decision affirmed the July 27, 2000
judgment2 of the Regional Trial Court (RTC), Branch 4, Tuguegarao City, Cagayan, finding the
petitioner and her co-accused Freiderich Johan I. Kummer guilty beyond reasonable doubt of the
crime of homicide in Criminal Case No. 1130.

The Facts
The prosecution's evidence revealed that on June 19, 1988, between 9:00 and 10:00 p.m., Jesus
Mallo, Jr., accompanied by Amiel Malana, went to the house of the petitioner. Mallo knocked at the
front door with a stone and identified himself by saying, "Auntie, ako si Boy Mallo."

The petitioner opened the door and at this point, her son and co-accused, Johan, using his left hand,
shot Mallo twice using a gun about six (6) inches long.3 Malana, who was with Mallo and who
witnessed the shooting, immediately ran towards the west, followed by Mallo. When Malana turned
his back, he saw the petitioner leveling and firing her long gun at Mallo, hitting the latter’s back and
causing him to fall flat on the ground.4

Thereafter, the petitioner went inside the house and came out with a flashlight. Together with her co-
accused, she scoured the pathway up to the place where Mallo was lying flat.5 At that point, the
petitioner uttered,"Johan, patay na," in a loud voice.6 The petitioner and her co-accused putdown the
guns and the flashlight they were holding, held Mallo’s feet and pulled him to about three (3) to four
(4) meters away from the house. Thereafter, they returned to the house and turned off all the lights.7

The following morning, policeman Danilo Pelovello went to the petitioner’s house and informed her
that Mallo had been found dead in front of her house. Pelovello conducted an investigation through
inquiries among the neighbors, including the petitioner, who all denied having any knowledge of the
incident.

The prosecution filed an information8 for homicide on January 12,1989 against the petitioner and
Johan, docketed as Criminal Case No. 1130.Both accused were arraigned and pleaded not guilty to
the crime charged. They waived the pre-trial, and the trial on the merits accordingly followed.

The petitioner denied the charge and claimed in her defense that she and her children, Johan,
Melanie and Erika, were already asleep in the evening of June 19, 1988. She claimed that they were
awakened by the sound of stones being thrown at their house, a gun report, and the banging at their
door.

Believing that the noise was caused by the members of the New People’s Army prevalent in their
area, and sensing the possible harm that might be inflicted on them, Johan got a .38 cal. gun from
the drawer and fired it twice outside to scare the people causing the disturbance. The noise
continued, however, with a stone hitting the window and breaking the glass; another stone hit
Melanie who was then sick. This prompted Johan to get the shotgun placed beside the door and to
fire it. The noise thereafter stopped and they all went back to sleep.

In its judgment dated July 27, 2000, the RTC found the prosecution’s evidence persuasive based on
the testimonies of prosecution eyewitnesses Ramon Cuntapay and Malana who both testified that
the petitioner shot Mallo. The testimonial evidence, coupled by the positive findings of gunpowder
nitrates on the left hand of Johan and on the petitioner’s right hand, as well as the corroborative
testimony of the other prosecution witnesses, led the RTC to find both the petitioner and Johan guilty
beyond reasonable doubt of the crime charged.

Johan, still a minor at the time of the commission of the crime, was released on the recognizance of
his father, Moises Kummer. Johan subsequently left the country without notifying the court; hence,
only the petitioner appealed the judgment of conviction with the CA.

She contended before the CA that the RTC committed reversible errors in its appreciation of the
evidence, namely: (1) in giving credence to the testimonial evidence of Cuntapay and of Malana
despite the discrepancies between their sworn statements and direct testimonies; (2) in not
considering the failure of the prosecution to cite the petitioner’s motive in killing the victim; (3) in
failing to consider that the writer of the decision, Judge Lyliha L. Abella-Aquino, was not the judge
who heard the testimonies; and (4) in considering the paraffin test results finding the petitioner
positive for gunpowder residue.

The CA rejected the petitioner’s arguments and affirmed the RTC judgment, holding that the
discrepancies between the sworn statement and the direct testimony of the witnesses do not
necessarily discredit them because the contradictions are minimal and reconcilable. The CA also
ruled that the inconsistencies are minor lapses and are therefore not substantial. The petitioner’s
positive identification by the eyewitnesses as one of the assailants remained unrefuted. The CA,
moreover, held that proof of motive is only necessary when a serious doubt arises on the identity of
the accused. That the writer of the decision was not the judge who heard the testimonies of the
witnesses does not necessarily make the decision erroneous.

In sum, the CA found Malana and Cuntapay’s positive identification and the corroborative evidence
presented by the prosecution more than sufficient to convict the petitioner of the crime charged.

On further appeal to this Court, the petitioner submits the issue of whether the CA committed a
reversible error in affirming the RTC’s decision convicting her of the crime of homicide.

In essence, the case involves the credibility of the prosecution eyewitnesses and the sufficiency of
the prosecution’s evidence.

Our Ruling

We find the petition devoid of merit.

The petitioner’s conviction is anchored on the positive and direct testimonies of the prosecution
eyewitnesses, which testimonies the petitioner submits to be both inconsistent and illogical. The
petitioner essentially impugns the credibility of the witnesses on these grounds. The petitioner
moreover claims that her conviction was based on doctrinal precepts that should not apply to her
case.

Variance between the eyewitnesses’

testimonies in open court and their
affidavits does not affect their
credibility

In her attempt to impugn the credibility of prosecution eyewitnesses Malana and Cuntapay, the
petitioner pointed to the following in consistencies: First, in paragraph 7 of Malana’s July 21, 1988
affidavit, he stated that after hearing two gunshots, he dived to the ground for cover and heard
another shot louder than the first two. This statement is allegedly inconsistent with his declaration
during the direct examination that he saw the petitioner and Johan fire their guns at Mallo. Second,
the July 22, 1988affidavit of Cuntapay likewise stated that he heard two burst of gun fire coming from
the direction of the petitioner’s house and heard another burst from the same direction, which
statement is allegedly inconsistent with his direct testimony where he claimed that he saw the
petitioner shoot Mallo. Third, in his affidavit, Malana declared that he ran away as he felt the door
being opened and heard two shots, while in his testimony in court, he stated that he ran away after
Mallo was already hit. According to the petitioner, these and some other trivial and minor
inconsistencies in the testimony of the two witnesses effectively destroyed their credibility.
We find these claims far from convincing. The Court has consistently held that inconsistencies
between the testimony of a witness in open court, on one hand, and the statements in his sworn
affidavit, on the other hand, referring only to minor and collateral matters, do not affect his credibility
and the veracity and weight of his testimony as they do not touch upon the commission of the crime
itself. Slight contradictions, in fact, even serve to strengthen the credibility of the witnesses, as these
may be considered as badges of truth rather than indicia of bad faith; they tend to prove that their
testimonies have not been rehearsed. Nor are such inconsistencies, and evenimpro babilities,
unusual, for no person has perfect faculties of senses or recall.9

A close scrutiny of the records reveals that Malana and Cuntapay positively and firmly declared in
open court that they saw the petitioner and Johan shoot Mallo. The inconsistencies in their affidavit,
they reasoned, were due to the oversight of the administering official in typing the exact details of
their narration.

It is oft repeated that affidavits are usually abbreviated and inaccurate. Oftentimes, an affidavit is
incomplete, resulting in its seeming contradiction with the declarant’s testimony in court. Generally,
the affiant is asked standard questions, coupled with ready suggestions intended to elicit answers,
that later turn out not to be wholly descriptive of the series of events as the affiant knows
them.10 Worse, the process of affidavit-taking may sometimes amount to putting words into the
affiant’s mouth, thus allowing the whole statement to be taken out of context.

The court is not unmindful of these on-the-ground realities. In fact, we have ruled that the
discrepancies between the statements of the affiant in his affidavit and those made by him on the
witness stand do not necessarily discredit him since ex parte affidavits are generally incomplete.11 As
between the joint affidavit and the testimony given in open court, the latter prevails because
affidavits taken ex-parte are generally considered to be inferior to the testimony given in court.12

In the present case, we find it undeniable that Malana and Cuntapay positively identified the
petitioner as one of the assailants. This is the critical point, not the inconsistencies that the petitioner
repeatedly refers to, which carry no direct bearing on the crucial issue of the identity of the
perpetrator of the crime. Indeed, the inconsistencies refer only to minor details that are not critical to
the main outcome of the case. Moreover, the basic rule is that the Supreme Court accords great
respect and even finality to the findings of credibility of the trial court, more so if the same were
affirmed by the CA, as in this case.13 We find no reason to break this rule and thus find that both the
RTC and the CA were correct in giving credence to the testimonies of Malana and Cuntapay.

It is not necessary for the validity of

the judgment that it be rendered by
the judge who heard the case

The petitioner contends that the CA, in affirming the judgment of the RTC, failed to recognize that
the trial court that heard the testimonies of Malana and Cuntapay was not the same court that
rendered the decision.14

We do not share this view.

The rule is settled that the validity of a judgment is not rendered erroneous solely because the judge
who heard the case was not the same judge who rendered the decision. In fact, it is not necessary
for the validity of a judgment that the judge who penned the decision should actually hear the case in
its entirety, for he can merely rely on the transcribed stenographic notes taken during the trial as the
basis for his decision.15
Thus, the contention - that since Judge Lyliha L. Abella-Aquino was not the one who heard the
evidence and thereby did not have the opportunity to observe the demeanor of the witnesses - must
fail. It is sufficient that the judge, in deciding the case, must base her ruling completely on the
records before her, in the way that appellate courts do when they review the evidence of the case
raised on appeal.16 Thus, a judgment of conviction penned by a different trial judge is not erroneous
if she relied on the records available to her.

Motive is irrelevant when the

accused has been positively identified

by an eyewitness

We agree with the CA’s ruling that motive gains importance only when the identity of the assailant is
in doubt. As held in a long line of cases, the prosecution does not need to prove the motive of the
accused when the latter has been identified as the author of the crime.17

Once again, we point out that the petitioner was positively identified by Malana and Cuntapay. Thus,
the prosecution did not have to identify and prove the motive for the killing. It is a matter of judicial
knowledge that persons have been killed for no apparent reason at all, and that friendship or even
relationship is no deterrent to the commission of a crime.18

The petitioner attempts to offer the justification that the witnesses did not really witness the shooting
as their affidavits merely attested that they heard the shooting of Mallo (and did not state that they
actually witnessed it). We find this to be a lame argument whose merit we cannot recognize.

That Malana and Cuntapay have been eyewitnesses to the crime remains unrefuted. They both
confirmed in their direct testimony before the RTC that they saw the petitioner fire a gun at Mallo.
This was again re-affirmed by the witnesses during their cross examination. The fact that their
respective affidavits merely stated that they heard the gunshots does not automatically foreclose the
possibility that they also saw the actual shoot in gas this was in fact what the witnesses claimed truly
happened. Besides, it has been held that the claim that "whenever a witness discloses in his
testimony in court facts which he failed to state in his affidavit taken ante litem motam, then an
inconsistency exists between the testimony and the affidavit" is erroneous. If what were stated in
open court are but details or additional facts that serve to supplement the declarations made in the
affidavit, these statements cannot be ruled out as inconsistent and may be considered by the court.

Thus, in light of the direct and positive identification of the petitioner as one of the perpetrators of the
crime by not one but two prosecution eye witnesses, the failure to cite the motive of the petitioner is
of no moment.

At any rate, we find it noteworthy that the lack or absence of motive for committing the crime does
not preclude conviction where there are reliable witnesses who fully and satisfactorily identified the
petitioner as the perpetrator of the felony, such as in this case.

There is no absolute uniformity

nor a fixed standard form of human
behavior

The petitioner imputes error to the CA in giving credence to the testimonies of Malana and Cuntapay
on the claim that these are riddled not only by inconsistencies and contradictions, but also by
improbabilities and illogical claims. She laboriously pointed out the numerous improbabilities that,
taken as a whole, allegedly cast serious doubt on their reliability and credibility.

She alleged, among others: (1) that it was abnormal and contrary to the ways of the farmers in the
rural areas for Cuntapay to go home from his corral at about 9:00 p.m., while everybody else goes
home from his farm much earlier, as working late in the farm (that is, before and after sunset) is
taboo to farming; (2) that the act of the petitioner of putting down her gun in order to pull the victim
away does not make any sense because a criminal would not simply part with his weapon in this
manner; (3) that it is highly incredible that Malana, who accompanied Mallo, was left unharmed and
was allowed to escape if indeed he was just beside the victim; (4) that it is unbelievable that when
Malana heard the cocking of guns and the opening of the door, he did not become scared at all; (5)
that Malana and Cuntapay did not immediately report the incident to the authorities; (6) that it was
highly improbable for Malana to turn his head while running; and (7) that it was unusual that
Cuntapay did not run away when he saw the shooting.

We rule, without descending to particulars and going over each and every one of these claims, that
without more and stronger indicators, we cannot accord them credit. Human nature suggests that
people may react differently when confronted with a given situation. Witnesses to a crime cannot be
expected to demonstrate an absolute uniformity and conformity inaction and reaction. People may
act contrary to the accepted norm, react differently and act contrary to the expectation of mankind.
There is no standard human behavioral response when one is confronted with an unusual, strange,
startling or frightful experience.19

We thus hold that the CA was correct in brushing aside the improbabilities alleged by the petitioner
who, in her present plight, can be overcritical in her attempt to seize every detail that can favor her
case. Unfortunately, if at all, her claims refer only to minor and even inconsequential details that do
not touch on the core of the crime itself.

Public documents are admissible in

court without further proof of their
due execution and authenticity

A public document is defined in Section 19, Rule 132 of the Rules of Court as follows:

SEC. 19. Classes of Documents. – For the purpose of their presentation in evidence, documents are
either public or private.

Public documents are:

(a) The written official acts, or records of the official acts of the sovereign authority, official
bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country;

(b) Documents acknowledged before a notary public except last wills and testaments; and

(c) Public records, kept in the Philippines, or private documents required by law to be
entered therein.

All other writings are private. [emphasis and underscore ours]

The chemistry report showing a positive result of the paraffin test is a public document. As a public
document, the rule on authentication does not apply. It is admissible in evidence without further
proof of its due execution and genuineness; the person who made the report need not be presented
in court to identify, describe and testify how the report was conducted. Moreover, documents
consisting of entries in public records made in the performance of a duty by a public officer are prima
facie evidence of the facts stated therein.20

In the present case, notwithstanding the fact that it was Captain Benjamin Rubio who was presented
in court to identify the chemistry report and not the forensic chemist who actually conducted the
paraffin test on the petitioner, the report may still be admitted because the requirement for
authentication does not apply to public documents. In other words, the forensic chemist does not
need to be presented as witness to identify and authenticate the chemistry report. Furthermore, the
entries in the chemistry report are prima facie evidence of the facts they state, that is, of the
presence of gunpowder residue on the left hand of Johan and on the right hand of the petitioner. As
a matter of fact, the petitioner herself admitted the presence of gunpowder nitrates on her fingers,
albeit ascribing their presence from a match she allegedly lighted.21 Accordingly, we hold that the
chemistry report is admissible as evidence.

On the issue of the normal process versus the actual process conducted during the test raised by
the petitioner, suffice it to say that in the absence of proof to the contrary, it is presumed that the
forensic chemist who conducted the report observed the regular procedure. Stated otherwise, the
courts will not presume irregularity or negligence in the performance of one’s duties unless facts are
shown dictating a contrary conclusion. The presumption of regularity in favor of the forensic chemist
compels us to reject the petitioner’s contention that an explanation has to be given on how the actual
process was conducted. Since the petitioner presented no evidence of fabrication or irregularity, we
presume that the standard operating procedure has been observed.

We note at this point that while the positive finding of gunpowder residue does not conclusively show
that the petitioner indeed fired a gun, the finding nevertheless serves to corroborate the prosecution
eyewitnesses’ testimony that the petitioner shot the victim. Furthermore, while it is true that
cigarettes, fertilizers, urine or even a match may leave traces of nitrates, experts confirm that these
traces are minimal and may be washed off with tap water, unlike the evidence nitrates left behind by
gunpowder.

Change in the date of the

commission of the crime, where the
disparity is not great, is merely a
formal amendment, thus, no
arraignment is required

The petitioner claims that she was not arraigned on the amended information for which she was
convicted. The petitioner’s argument is founded on the flawed understanding of the rules on
amendment and misconception on the necessity of arraignment in every case. Thus, we do not see
any merit in this claim.

Section 14, Rule 110 of the Rules of Court permits a formal amendment of a complaint even after
the plea but only if it is made with leave of court and provided that it can be done without causing
prejudice to the rights of the accused. Section 14 provides:

Section 14. Amendment or substitution. A complaint or information may be amended, in form or in

substance, without leave of court, at any time before the accused enters his plea. After the plea and
during the trial, a formal amendment may only be made with leave of court and when it can be done
without causing prejudice to the rights of the accused.
However, any amendment before plea, which downgrades the nature of the offense charged in or
excludes any accused from the complaint or information, can be made only upon motion by the
prosecutor, with notice to the offended party and with leave of court. The court shall state its reasons
in resolving the motion and copies of its order shall be furnished all parties, especially the offended
party.

If it appears at any time before judgment that a mistake has been made in charging the proper
offense, the court shall dismiss the original complaint or information upon the filing of a new one
charging the proper offense in accordance with section 19, Rule 119, provided the accused would
not be placed in double jeopardy. The court may require the witnesses to give bail for their
appearance at the trial. [emphasis and underscore ours]

A mere change in the date of the commission of the crime, if the disparity of time is not great, is
more formal than substantial. Such an amendment would not prejudice the rights of the accused
since the proposed amendment would not alter the nature of the offense.

The test as to when the rights of an accused are prejudiced by the amendment of a complaint or
information is when a defense under the complaint or information, as it originally stood, would no
longer be available after the amendment is made, when any evidence the accused might have would
no longer be available after the amendment is made, and when any evidence the accused might
have would be inapplicable to the complaint or information, as amended.22

In People, et al. v. Borromeo, et al.,23 we ruled that the change of the date of the commission of the
crime from June 24, 1981 to August 28, 1981 is a formal amendment and would not prejudice the
rights of the accused because the nature of the offense of grave coercion would not be altered. In
that case, the difference in the date was only about two months and five days, which difference, we
ruled, would neither cause substantial prejudice nor cause surprise on the part of the accused.

It is not even necessary to state in the complaint or information the precise time at which the offense
was committed except when time is a material ingredient of the offense.24 The act may be alleged to
have been committed at any time as near as to the actual date at which date the offense was
committed, as the information will permit. Under the circumstances, the precise time is not an
essential ingredient of the crime of homicide.

Having established that a change of date of the commission of a crime is a formal amendment, we
proceed to the next question of whether an arraignment is necessary.

Arraignment is indispensable in bringing the accused to court and in notifying him of the nature and
cause of the accusations against him. The importance of arraignment is based on the constitutional
right of the accused to be informed.25 Procedural due process requires that the accused be arraigned
so that he may be informed of the reason for his indictment, the specific charges he is bound to face,
and the corresponding penalty that could be possibly meted against him. It is at this stage that the
accused, for the first time, is given the opportunity to know the precise charge that confronts him. It
is only imperative that he is thus made fully aware of the possible loss of freedom, even of his life,
depending on the nature of the imputed crime.26

The need for arraignment is equally imperative in an amended information or complaint. This
however, we hastily clarify, pertains only to substantial amendments and not to formal amendments
that, by their very nature, do not charge an offense different from that charged in the original
complaint or information; do not alter the theory of the prosecution; do not cause any surprise and
affect the line of defense; and do not adversely affect the substantial rights of the accused, such as
an amendment in the date of the commission of the offense.
We further stress that an amendment done after the plea and during trial, in accordance with the
rules, does not call for a second plea since the amendment is only as to form. The purpose of an
arraignment, that is, to inform the accused of the nature and cause of the accusation against him,
has already been attained when the accused was arraigned the first time. The subsequent
amendment could not have conceivably come as a surprise to the accused simply because the
amendment did not charge a new offense nor alter the theory of the prosecution.

Applying these rules and principles to the prevailing case, the records of the case evidently show
that the amendment in the complaint was from July 19, 1988 to June 19, 1988, or a difference of
only one month. It is clear that consistent with the rule on amendments and the jurisprudence cited
above, the change in the date of the commission of the crime of homicide is a formal amendment - it
does not change the nature of the crime, does not affect the essence of the offense nor deprive the
accused of an opportunity to meet the new averment, and is not prejudicial to the accused. Further,
the defense under the complaint is still available after the amendment, as this was, in fact, the same
line of defenses used by the petitioner. This is also true with respect to the pieces of evidence
presented by the petitioner. The effected amendment was of this nature and did not need a second
plea.

To sum up, we are satisfied after a review of the records of the case that the prosecution has proven
the guilt of the petitioner beyond reasonable doubt. The constitutional presumption of innocence has
been successfully overcome.

WHEREFORE, premises considered, the appealed decision dated April 28, 2006, convicting the
petitioner of the crime of homicide, is hereby AFFIRMED. Costs against petitioner Leticia I. Kummer.

SO ORDERED.

ARTURO D. BRION
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

JOSE PORTUGAL PEREZ ESTELA M. PERLAS-BERNABE

Associate Justice Associate Justice

MARVIC MARIO VICTOR F. LEONEN*

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 Court’s Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson
 CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's 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 Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes

* In lieu of Associate Justice Mariano C. del Castillo per Raffle dated September 4, 2013.

 Rollo, pp. 11-28; penned by Associate Justice Vicente S. F. Veloso, and concurred in by
1

Associate Justice Juan Q. Enriquez, Jr. and Associate Justice Amelita G. Tolentino.

2
 Id. at 85-94; penned by Judge Lyliha L. Abella-Aquino.

3
 TSN, November 21, 1989, p. 6.

4
 Id. at 11.

5
 Id. at 12.

6
 Id. at 13.

7
 Ibid.

8
 Rollo, p. 82.

9
 People v. Perreras, 414 Phil. 480, 488 (2001).

10
 People v. Quiming, G.R. No. 92847, May 21, 1993, 222 SCRA 371, 376.

11
 People v. Dumpe, G.R. Nos. 80110-11, March 22, 1990, 183 SCRA 547, 552.

12
 People v. Marcelo, G.R. No. 105005, June 2, 1993, 223 SCRA 24, 36.

13
 People v. Lucero, G.R. No. 179044, December 6, 2010, 636 SCRA 533, 540.

14
 Rollo, p. 351.

15
 People v. Cadley, 469 Phil. 515, 524 (2004).

16
 Villanueva v. Judge Estenzo, 159-A Phil. 674, 681 (1975).
 17
 People v. Canceran, G.R. No. 104866, January 31, 1994, 229 SCRA 581, 587.

18
 People v. Paragua, 326 Phil. 923, 929 (1996).

19
 People v. Roncal, 338 Phil. 749, 755 (1997).

20
 RULES OF COURT, Rule 132, Section 23.

21
 Rollo, p. 50.

22
 People v. Casey, No. L-30146, February 24, 1981, 103 SCRA 21, 31-32.

23
 208 Phil. 234, 237-238 (1983).

24
 RULES OF COURT, Rule 110, Section 11.

25
 Id., Rule 115, Section 1(b).

26
 Borja v. Judge Mendoza, 168 Phil. 83, 87 (1977).

G.R. No. 74433 September 14, 1987

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FRANCISCO ABARCA, accused-appellant.

SARMIENTO, J.:

This is an appeal from the decision of the Regional Trial Court of Palo, Leyte, sentencing the
accused-appellant Francisco Abarca to death for the complex crime of murder with double frustrated
murder.

The case was elevated to this Court in view of the death sentence imposed. With the approval of the
new Constitution, abolishing the penalty of death and commuting all existing death sentences to life
imprisonment, we required the accused-appellant to inform us whether or not he wished to pursue
the case as an appealed case. In compliance therewith, he filed a statement informing us that he
wished to continue with the case by way of an appeal.

The information (amended) in this case reads as follows:

xxx xxx xxx

The undersigned City Fiscal of the City of Tacloban accuses Francisco Abarca of the
crime of Murder with Double Frustrated Murder, committed as follows:
 That on or about the 15th day of July, 1984, in the City of Tacloban, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, with
deliberate intent to kill and with evident premeditation, and with treachery, armed with
an unlicensed firearm (armalite), M-16 rifle, did then and there wilfully, unlawfully and
feloniously attack and shot several times KHINGSLEY PAUL KOH on the different
parts of his body, thereby inflicting upon said KHINGSLEY PAUL KOH gunshot
wounds which caused his instantaneous death and as a consequence of which also
caused gunshot wounds to LINA AMPARADO and ARNOLD AMPARADO on the
different parts of their bodies thereby inflicting gunshot wounds which otherwise
would have caused the death of said Lina Amparado and Arnold Amparado, thus
performing all the acts of execution which should have produced the crimes of
murders as a consequence, but nevertheless did not produce it by reason of causes
independent of his will, that is by the timely and able medical assistance rendered to
Lina Amparado and Arnold Amparado which prevented their death. 1

xxx xxx xxx

On arraignment, the accused-appellant pleaded not guilty. The Solicitor General states accurately
the facts as follows:

Khingsley Paul Koh and the wife of accused Francisco Abarca, Jenny, had illicit
relationship. The illicit relationship apparently began while the accused was in Manila
reviewing for the 1983 Bar examinations. His wife was left behind in their residence
in Tacloban, Leyte (pp. 45-47, 65, tsn, Sept. 24, 1984).

On July 15, 1984, the accused was in his residence in Tacloban, Leyte. On the
morning of that date he went to the bus station to go to Dolores, Eastern Samar, to
fetch his daughter. However, he was not able to catch the first trip (in the morning).
He went back to the station in the afternoon to take the 2:00 o'clock trip but the bus
had engine trouble and could not leave (pp. 5-8, tsn, Nov. 28, 1985). The accused,
then proceeded to the residence of his father after which he went home. He arrived
at his residence at the V & G Subdivision in Tacloban City at around 6:00 o'clock in
the afternoon (pp. 8-9, tsn, Id.).

Upon reaching home, the accused found his wife, Jenny, and Khingsley Koh in the
act of sexual intercourse. When the wife and Koh noticed the accused, the wife
pushed her paramour who got his revolver. The accused who was then peeping
above the built-in cabinet in their room jumped and ran away (pp. 9-13, tsn, Id.).

The accused went to look for a firearm at Tacloban City. He went to the house of a
PC soldier, C2C Arturo Talbo, arriving there at around 6:30 p.m. He got Talbo's
firearm, an M-16 rifle, and went back to his house at V & G Subdivision. He was not
able to find his wife and Koh there. He proceeded to the "mahjong session" as it was
the "hangout" of Kingsley Koh. The accused found Koh playing mahjong. He fired at
Kingsley Koh three times with his rifle (pp. 13-19, tsn, Id.). Koh was hit. Arnold and
Lina Amparado who were occupying a room adjacent to the room where Koh was
playing mahjong were also hit by the shots fired by the accused (pp. 34-49, tsn, Sept.
24, 1984). Kingsley Koh died instantaneously of cardiorespiratory arrest due to shock
and hemorrhage as a result of multiple gunshot wounds on the head, trunk and
abdomen (pp. 28-29, tsn, Sept. 24, 1984; see also exh. A): Arnold Amparado was
hospitalized and operated on in the kidney to remove a bullet (pp. 17-23, tsn, Oct.
17, 1984; see also exh. C). His wife, Lina Amparado, was also treated in the hospital
 as she was hit by bullet fragments (p. 23, tsn, Id.). Arnold Amparado who received a
salary of nearly P1,000.00 a month was not able to work for 1-1/2 months because of
his wounds. He spent P15,000.00 for medical expenses while his wife spent
Pl,000.00 for the same purpose (pp. 24-25, tsn, Id. ). 2

On March 17, 1986, the trial court rendered the appealed judgment, the dispositive portion whereof
reads as follows:

xxx xxx xxx

WHEREFORE, finding the accused, Francisco Abarca guilty beyond reasonable

doubt of the complex crime of murder with double frustrated murder as charged in
the amended information, and pursuant to Art. 63 of the Revised Penal Code which
does not consider the effect of mitigating or aggravating circumstances when the law
prescribes a single indivisible penalty in relation to Art. 48, he is hereby sentenced to
death, to indemnify the heirs of Khingsley Paul Koh in the sum of P30,000,
complainant spouses Arnold and Lina Amparado in the sum of Twenty Thousand
Pesos (P20,000.00), without subsidiary imprisonment in case of insolvency, and to
pay the costs.

It appears from the evidence that the deceased Khingsley Paul Koh and defendant's
wife had illicit relationship while he was away in Manila; that the accused had been
deceived, betrayed, disgraced and ruined by his wife's infidelity which disturbed his
reasoning faculties and deprived him of the capacity to reflect upon his acts.
Considering all these circumstances this court believes the accused Francisco
Abarca is deserving of executive clemency, not of full pardon but of a substantial if
not a radical reduction or commutation of his death sentence.

Let a copy of this decision be furnished her Excellency, the President of the
Philippines, thru the Ministry of Justice, Manila.

SO ORDERED.  3

xxx xxx xxx

The accused-appellant assigns the following errors committed by the court a quo:

I.

IN CONVICTING THE ACCUSED FOR THE CRIME AS CHARGED INSTEAD OF ENTERING A

JUDGMENT OF CONVICTION UNDER ARTICLE 247 OF THE REVISED PENAL CODE;

II.

IN FINDING THAT THE KILLING WAS AMENDED BY THE QUALIFYING CIRCUMSTANCE OF

TREACHERY.  4

The Solicitor General recommends that we apply Article 247 of the Revised Penal Code defining
death inflicted under exceptional circumstances, complexed with double frustrated murder. Article
247 reads in full:
 ART. 247. Death or physical injuries inflicted under exceptional circumstances. —
Any legally married person who, having surprised his spouse in the act of committing
sexual intercourse with another person, shall kill any of them or both of them in the
act or immediately thereafter, or shall inflict upon them any serious physical injury,
shall suffer the penalty of destierro.

If he shall inflict upon them physical injuries of any other kind, he shall be exempt
from punishment.

These rules shall be applicable, under the same circumstances, to parents with
respect to their daughters under eighteen years of age, and their seducers, while the
daughters are living with their parents.

Any person who shall promote or facilitate prostitution of his wife or daughter, or shall
otherwise have consented to the infidelity of the other spouse shall not be entitled to
the benefits of this article.

We agree with the Solicitor General that the aforequoted provision applies in the instant case. There
is no question that the accused surprised his wife and her paramour, the victim in this case, in the
act of illicit copulation, as a result of which, he went out to kill the deceased in a fit of passionate
outburst. Article 247 prescribes the following elements: (1) that a legally married person surprises his
spouse in the act of committing sexual intercourse with another person; and (2) that he kills any of
them or both of them in the act or immediately thereafter. These elements are present in this case.
The trial court, in convicting the accused-appellant of murder, therefore erred.

Though quite a length of time, about one hour, had passed between the time the accused-appellant
discovered his wife having sexual intercourse with the victim and the time the latter was actually
shot, the shooting must be understood to be the continuation of the pursuit of the victim by the
accused-appellant. The Revised Penal Code, in requiring that the accused "shall kill any of them or
both of them . . . immediately" after surprising his spouse in the act of intercourse, does not say that
he should commit the killing instantly thereafter. It only requires that the death caused be the
proximate result of the outrage overwhelming the accused after chancing upon his spouse in the
basest act of infidelity. But the killing should have been actually motivated by the same blind
impulse, and must not have been influenced by external factors. The killing must be the direct by-
product of the accused's rage.

It must be stressed furthermore that Article 247, supra, does not define an offense.   In People v.
5

Araque,   we said:

6

xxx xxx xxx

As may readily be seen from its provisions and its place in the Code, the above-
quoted article, far from defining a felony, merely provides or grants a privilege or
benefit — amounting practically to an exemption from an adequate punishment — to
a legally married person or parent who shall surprise his spouse or daughter in the
act of committing sexual intercourse with another, and shall kill any or both of them in
the act or immediately thereafter, or shall inflict upon them any serious physical
injury. Thus, in case of death or serious physical injuries, considering the enormous
provocation and his righteous indignation, the accused — who would otherwise be
criminally liable for the crime of homicide, parricide, murder, or serious physical
injury, as the case may be — is punished only with destierro. This penalty is mere
banishment and, as held in a case, is intended more for the protection of the accused
 than a punishment. (People vs. Coricor, 79 Phil., 672.) And where physical injuries
other than serious are inflicted, the offender is exempted from punishment. In effect,
therefore, Article 247, or the exceptional circumstances mentioned therein, amount to
an exempting circumstance, for even where death or serious physical injuries is
inflicted, the penalty is so greatly lowered as to result to no punishment at all. A
different interpretation, i.e., that it defines and penalizes a distinct crime, would make
the exceptional circumstances which practically exempt the accused from criminal
liability integral elements of the offense, and thereby compel the prosecuting officer
to plead, and, incidentally, admit them, in the information. Such an interpretation
would be illogical if not absurd, since a mitigating and much less an exempting
circumstance cannot be an integral element of the crime charged. Only "acts or
omissons . . . constituting the offense" should be pleaded in a complaint or
information, and a circumstance which mitigates criminal liability or exempts the
accused therefrom, not being an essential element of the offense charged-but a
matter of defense that must be proved to the satisfaction of the court-need not be
pleaded. (Sec. 5, Rule 106, Rules of Court; U.S. vs. Campo, 23 Phil., 368.)

That the article in question defines no crime is made more manifest when we
consider that its counterpart in the old Penal Code (Article 423) was found under the
General Provisions (Chapter VIII) of Title VIII covering crimes against persons. There
can, we think, hardly be any dispute that as part of the general provisions, it could
not have possibly provided for a distinct and separate crime.

xxx xxx xxx

We, therefore, conclude that Article 247 of the Revised Penal Code does not define
and provide for a specific crime, but grants a privilege or benefit to the accused for
the killing of another or the infliction of serious physical injuries under the
circumstances therein mentioned. ...  7

xxx xxx xxx

Punishment, consequently, is not inflicted upon the accused. He is banished, but that is intended for
his protection. 
8

It shall likewise be noted that inflicting death under exceptional circumstances, not being a
punishable act, cannot be qualified by either aggravating or mitigating or other qualifying
circumstances, We cannot accordingly appreciate treachery in this case.

The next question refers to the liability of the accused-appellant for the physical injuries suffered by
Lina Amparado and Arnold Amparado who were caught in the crossfire as the accused-appellant
shot the victim. The Solicitor General recommends a finding of double frustrated murder against the
accused-appellant, and being the more severe offense, proposes the imposition of reclusion
temporal in its maximum period pursuant to Article 48 of the Revised Penal Code. This is where we
disagree. The accused-appellant did not have the intent to kill the Amparado couple. Although as a
rule, one committing an offense is liable for all the consequences of his act, that rule presupposes
that the act done amounts to a felony.  9

But the case at bar requires distinctions. Here, the accused-appellant was not committing murder
when he discharged his rifle upon the deceased. Inflicting death under exceptional circumstances is
not murder. We cannot therefore hold the appellant liable for frustrated murder for the injuries
suffered by the Amparados.
This does not mean, however, that the accused-appellant is totally free from any responsibility.
Granting the fact that he was not performing an illegal act when he fired shots at the victim, he
cannot be said to be entirely without fault. While it appears that before firing at the deceased, he
uttered warning words ("an waray labot kagawas,") 10 that is not enough a precaution to absolve him for the injuries
sustained by the Amparados. We nonetheless find negligence on his part. Accordingly, we hold him liable under the first part, second
paragraph, of Article 365, that is, less serious physical injuries through simple imprudence or negligence. (The records show that Arnold
Amparado was incapacitated for one and one-half months; 11 there is no showing, with respect to Lina Amparado, as to the extent of her
injuries. We presume that she was placed in confinement for only ten to fourteen days based on the medical certificate estimating her
recovery period.) 12

For the separate injuries suffered by the Amparado spouses, we therefore impose upon the
accused-appellant arresto mayor (in its medium and maximum periods) in its maximum
period, arresto to being the graver penalty (than destierro). 13

WHEREFORE, the decision appealed from is hereby MODIFIED. The accused-appellant is sentenced to four months and 21 days to six
months of arresto mayor. The period within which he has been in confinement shall be credited in the service of these penalties. He is
furthermore ordered to indemnify Arnold and Lina Amparado in the sum of P16,000.00 as and for hospitalization expense and the sum of
P1,500.00 as and for Arnold Amparado's loss of earning capacity. No special pronouncement as to costs.

IT IS SO ORDERED.

Yap (Chairman), Melencio-Herrera, Paras, and Padilla JJ., concur.

Footnotes

1 Rollo, 10-11.

2 Id., 88-89.

3 Id., 23-24; penned by Regional Trial Court Judge Auxencio C. Dacuycuy.

4 Brief for Accused-Appellant, rollo, 45.

5 People v. Araquel, 106 Phil. 677 (1959).

6 Supra.

7 Supra, 681-683.

8 Supra.

9 Article 4 of the Code provides as follows:

Art. 4. Criminal liability.-Criminal liability shall be incurred:

1. By any person committing a felony (delito) although the wrongful

act done be different from that which he intended.

2. By any person performing an act which would be an offense

against persons or property, were it not for the inherent impossibility
 of its accomplishment or on account of the employment of inadequate
or ineffectual means.

10 Brief for the Accused-Appellant. The statement is translated as follows: "Those

not concerned, get out." See T.S.N., session of November 28, 1985, 17-18.

11 T.S.N., session of October 17, 1984, 24.

12 Record, 29.

13 REV. PEN. CODE, supra, art, 71; see supra, art. 48.

G.R. No. L-38930 June 28, 1988

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ISABELO TRINIDAD, alias "Pedro Diplat," and ROMEO CONDAYA, alias "Romy," accused-
appellants.

The Solicitor General for plaintiff-appellee.

Domingo V. Pascua for accused-appellant Isabelo Trinidad.

Emiliano S. Micu for accused-appellant Romeo Condaya.

CORTES, J.:

Appellants were accused of the crime of murder on the basis of the following information:

That on or about the 16th day of April, 1973, at night, in Barrio San Vicente,
municipality of Umingan, province of Pangasinan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, Isabelo Trinidad,
alias "Pedro Diplat and Romeo Condaya, alias "Romy," and Bonifacio Palding, alias
"Pacio," and Wilfredo Mitrado, alias "Edo," who were discharged in the municipal
court for insufficiency of evidence, conspiring together and mutually helping one
another, armed with a shotgun and with intent to kill, with evident premeditation and
treachery, did, then and there, wilfully, unlawfully and feloniously attack, assault and
shoot Cristita Balancio Vda. de Angel inflicting upon her fatal gunshot wounds which
caused her death as a consequence.

Contrary to Art. 248 of the Revised Penal Code. [Rollo, p. 4].

Upon arraignment, both accused-appellants, with the assistance of counsel, pleaded "Not Guilty."

In a decision dated May 27, 1974, the Court of First Instance rendered judgment convicting accused-
appellants of murder and sentencing them to suffer the penalty of reclusion perpetua, to jointly and
severally indemnify the heirs of the deceased Cristita Balancio Vda. de Angel in the amount of
P12,000.00 and to pay the costs. The shotgun and the cartridges used in the commission of the
crime were ordered confiscated and forfeited in favor of the government.

Not agreeing with the decision of the trial court accused-appellants appealed to this Court.

In his brief, accused-appellant Trinidad assigned the following errors:

I. THAT THE LOWER COURT ERRED SERIOUSLY WHEN IT REFUSED TO CONSIDER THE
EVIDENCE FOR THE DEFENSE

II. THAT THE LOWER COURT ERRED GRAVELY AND SERIOUSLY WHEN IT CONCLUDED
WITHOUT GROUNDS THAT:

1. It is undeniable that the initial holder of the gun was Isabelo

Trinidad.

2. Isabelo Trinidad made sufficient steps in trying to escape suspicion

by giving the gun for safekeeping to Romeo Condaya.

3. It is inconceivable for the police authorities to exactly know where

the gun and the cartridges were hidden if not for the information
furnished them by Romeo Condaya.

4. Isabelo Trinidad's presence at the scene of the crime was

established by even the evidence in his behalf [as) his house is a few
meters away from the victim's house.

5. Such startling occurrence could have roused Isabelo Trinidad from

his sleep. In fine, when Isabelo Trinidad, after the burst of gunfire
returned to the victim's house it was only to shield himself from
responsibility for the crime which he concocted.

6. that the evidence clearly establish that Isabelo Trinidad

conveniently evaded direct confrontation with the police authorities at
the initial stage of the police investigation.

III. THAT THE LOWER COURT ERRED SO GRAVELY WHEN IT CONVICTED THE ACCUSED
(YOUR APPELLANT) OF THE CRIME CHARGED CONTRARY TO LAW AND THE EVIDENCE.

On his part, accused-appellant Condaya assigned the following errors:

THE LOWER COURT ERRED IN HOLDING THAT THE EVIDENCE PRESENTED BY THE
DEFENSE TO PROVE THE IRREGULARITY RESORTED TO BY THE POLICE AUTHORITIES TO
EXACT ADMISSION BY MEANS OF VIOLENCE, INTIMIDATION AND DECEIT FROM THE
ACCUSED WAS IRRELEVANT DESPITE THAT ITS MATERIALITY AND RELEVANCE TO THE
CASE IS VERY CLEAR.

II
THE LOWER COURT ERRED IN HOLDING THAT THE INITIAL INVESTIGATION REVEALED
THAT ISABELO TRINIDAD, ROMEO CONDAYA, BONIFACIO PALDING AND WILFREDO
MITRADO IMMEDIATELY AFTER THE, BURST OF GUNFIRE WAS HEARD, WERE SEEN A FEW
METERS FROM THE HOUSE OF THE VICTIM CRISTITA BALANCIO VDA. DE ANGEL
HURRIEDLY WALKING TOWARDS THE NORTH AND THAT ROMEO CONDAYA WAS HOLDING
A GUN, DESPITE THE CLEARLY IMPROBABLE AND INCONSISTENT TESTIMONIES OF THE
WITNESSES WHO TESTIFIED ON THIS (SIC) POINTS.

III

THE LOWER COURT ERRED IN HOLDING THAT ROMEO CONDAYA LED THE AUTHORITIES
TO THE COLIBANGBANG" TREE AND THE BAMBOO GROVES WHERE THE SHOTGUN (EXH.
C) AND THE CARTRIDGES (EXHS. D, D-1, D-2 AND D-3) WERE ALLEGEDLY RESPECTIVELY
RETRIEVED DESPITE THE UNRELIABLE AND THE INADMISSIBILITY OF THE EVIDENCE
UPON WHICH IT WAS BASED.

IV

THE LOWER COURT ERRED IN CONCLUDING THAT ROMEO CONDAYA WAS THE GUN
WIELDER AND THAT HE DID SO UPON THE ACTIVE INDUCEMENT OF HIS CO-ACCUSED
ISABELO TRINIDAD, DESPITE THE TOTAL LACK OF EVIDENCE TO SUPPORT IT.

AND, FINALLY, THE LOWER COURT ERRED IN CONCLUDING THAT THE CRIME CHARGED IN
THE INFORMATION WAS PROVED AND THAT BOTH THE ACCUSED ARE GUILTY THEREOF
DESPITE THE TOTAL LACK OF SUFFICIENT EVIDENCE TO PROVE THEIR GUILT BEYOND
REASONABLE DOUBT.

Ultimately, however, as pointed out by accused-appellant Condaya, the issue boils down to whether
or not the prosecution has proven beyond reasonable doubt that accused-appellants Trinidad and
Condaya were the persons responsible for the death of the victim.

To support its judgment of conviction, the trial court relied on the following findings:

The evidence for the prosecution tends to establish that in the evening of April 16,
1973, one Cristita Balancio Vda. de Angel was asleep by the balcony of her house
situated at Barrio San Vicente, Umingan, Pangasinan. With her at that time were her
son, Juan Angel, her daughter-in- law and two (2) grandchildren. Suddenly, there
was a burst of gunfire, rousing Juan Angel and his wife from their sleep. Juan Angel
then peeped out from the window to find out what happened as his carabao was tied
just below the said window. As Juan Angel peeped, he saw Isabelo Trinidad, Romeo
Condaya, Wilfredo Mitrado and Bonifacio Palding, about five (5) to six (6) meters
away hurriedly walking towards the North.

Shortly, as Juan Angel's wife shouted. Romeo Condaya who was then holding a gun,
Isabelo Trinidad, Bonifacio Palding, and Wilfredo Mitrado ran farther towards the
North.

It turned out that Cristita Balancio Vda. de Angel was hit by her neck which caused
her death. (Exhibits "A" and "A-1"). So, Juan Angel proceeded to call for help. He
 asked somebody to fetch Ignacio Dopale, the Barrio Captain of San Vicente,
Umingan, Pangasinan, who immediately responded to Juan Angel's call for help.
Initial inquiries from Juan Angel, revealed the information that Immediately after the
burst of gunfire, Romeo Condaya, Wilfredo Mitrado, Isabelo Trinidad and Bonifacio
Palding, were seen hurriedly walking towards the North. So that, Barrio Captain
Ignacio Dopale proceeded to the Umingan Municipal Building in Order to report the
matter.

Corporal Dominador Barwel of the Umingan Police Force to whom the case was
referred first fetched Sergeant Casio of the Philippine Constabulary at Umingan,
Pangasinan. Then, they proceeded to the scene of the incident in order to
investigate.

Arriving at the premises, they saw Cristita Balancio Vda. de Angel, already dead as a
result of gunshot wounds suffered at the back of her neck. This investigation again
revealed the information that Isabelo Trinidad, Romeo Condaya, Bonifacio Palding,
and Wilfredo Mitrado, were seen within the vicinity immediately after the gunfire. As
Isabelo Trinidad was then on the premises, he was apprehended and brought to the
Municipal Building of Umingan, Pangasinan. On the way, Isabelo Trinidad revealed
that he had caused the death of Cristita Balancio Vda. de Angel, as in fact he offered
to pay Romeo Condaya the amount of Five Hundred Pesos (P500.00) to do the job.
However, the intended victim was Juan Angel, because of Isabelo Trinidad's
carabao.

Accordingly, Sgt. Casio and Cpl. Dominador Barwel on April 17, 1973 took steps to
apprehend Romeo Condaya, Wilfredo Mitrado and Bonifacio Palding, at Sta. Rosa,
Umingan, Pangasinan. Wilfredo Mitrado was apprehended on April 18,1973 while
Romeo Condaya was apprehended sometime on April 20, 1973 at Sto. Tomas,
Pangasinan, after being turned over by the Sto. Tomas police authorities. On the way
to Umingan, Pangasinan, Romeo Condaya was verbally interrogated inside the jeep.
Here, Condaya was asked if he had anything to do with the killing of Cristita Balancio
Vda. de Angel. Readily, Romeo Condaya admitted the shooting as Isabelo Trinidad
promised to pay him (Condaya) the amount of Five Hundred Pesos (P500.00).
However, this amount remained unpaid. On the same occasion, Romeo Condaya
informed Sgt. Casio and Cpl. Barwel that the gun used in the killing was hidden
somewhere atop a "Colibangbang" tree at Sta. Rosa, Umingan, Pangasinan.

At Sta. Rosa, Umingan, Pangasinan, and upon Condaya's instructions, the 12 gauge
locally made buck-shot was recovered. (Exhibit "C"). Thereafter, Romeo Condaya
pointed to the bamboo grove where he hid the cartridges. (Exhibits "D", "D-1', "D-2"
and "D-3").

After their apprehension, Romeo Condaya, Isabelo Trinidad, Bonifacio Palding, and
Wilfredo Mitrado were made to execute sworn statements which, however, they
refused to affirm before the Municipal Judge of Umingan, Pangasinan. [CFI Decision,
pp. 2-4; Rollo, pp. 21-23].

In their testimonies, accused-appellants Trinidad and Condaya denied their participation in the crime
and asserted that after their apprehension they were tortured and maltreated until they signed
documents which they later found out to be their extrajudicial confessions. Hence, their refusal to
affirm their written confessions before the municipal judge.
To prove his innocence, Trinidad emphasized the undisputed facts that he was even among those
who went to Umingan to fetch Sgt. Casio and Cpl. Barwel and that he even remained at the scene of
the crime while, they were conducting their investigation and provided refreshments for the
investigators.

The trial court dismissed accused-appellants defense with the following observation:

Before anything else, this Court notes with muffled amusement the manner at which
the accused presented their side of the case. For aware as they were that the
alleged statements taken from them by the authorities of Umingan, Pangasinan when
offered by the prosecution was denied admission, they persisted at presenting
evidence along this line. There really was no need for the accused to do what they
did. As far as this Court is concerned, the supposed irregularity at securing these
admissions was irrelevant. For so it is that these statements were not even
subscribed and sworn to before any competent authority. So that, when the accused
persistently harped at this alleged violence upon their persons, this Court was
furnished a sufficient basis at attributing a semblance of meaning to these
statements. But conformably with our settled constitutional demands of due process,
this Court considers these averments of violence extraneous to this case, although
the Municipal Health Officer, Dr. Eddie Soriano's medical certificates had shown a
contrary finding. (Exhibits "H", "H-1", "H-2", "I", "I-1", "I-2" and "I- 3"). [Rollo, pp. 31-
32].

At the outset, it must be stated that the trial court correctly denied the admissibility as evidence of
the written extrajudicial confessions of the accused-appellants. Such denial, however, should not
have been for the reason given, namely, that they were not subscribed and sworn to before the
proper authorities, but, rather, because the requirements of the Constitution were disregarded.

The 1973 Constitution, then in force and effect when the confessions were taken, provided in words
that left no room for doubt:

Sec. 20. No person shall be compelled to be a witness against himself. Any person
under investigation for the commission of an offense shall have the right to remain
silent and to counsel, and to be informed of such right. No force, violence, threat,
intimidation, or any other means which vitiates the free will shall be used against him.
Any confession obtained in violation of this section shall be inadmissible in evidence.
[Article IV].

The rule is that when an accused testifies that he signed his confession because he was maltreated,
the prosecution must present evidence to rebut this claim, otherwise the confession will be
considered illegally procured [People v. Inguito, L-53497, October 18, 1982, 117 SCRA 641.] The
presumption of regularity of performance of official duty does not apply to incustody confessions.
The prosecution must prove compliance with the constitutional requirements [People v. Tolentino,
G.R. No. L-50103, November 24, 1986, 145 SCRA 597.]In the instant case, accused-appellants'
allegations of torture and maltreatment were refuted by Dr. Soriano's testimony and medical
certificate.

However, since there is no proof that when they made their confessions they were informed of their
right to remain silent and to counsel and that they knowingly and intelligently waived these rights,
such confessions are inadmissible in evidence [People v. Duero, G.R. No. L-52016, May 13, 1981,
104 SCRA 379.] Likewise, the absence of counsel at the time of custodial investigation when the
extrajudicial confession was taken renders it inadmissible [People v. Burgos, G.R. No. L-68955,
September 4, 1986, 144 SCRA 1.] It is not enough that the suspect is asked if he needs a lawyer, he
must be informed that if he is an indigent a lawyer will be appointed to represent him during custodial
interrogation [People v. Tolentino, supra].

It is not only the oral confessions made to the apprehending officers, Sgt. Casio and Cpl. Barwel,
that are tainted but also the written confessions made and signed a few days after their arrest. Thus,
the testimonies of the police officers on the matters allegedly confessed to them by accused-
appellants and the written extrajudicial confessions are inadmissible in evidence.

2. As the extrajudicial confessions are inadmissible, the Court is tasked with determining whether
there remains sufficient evidence to sustain a finding of guilt beyond reasonable doubt.

It must be emphasized that no direct evidence was adduced to prove accused-appellants'

commission of the crime charged.

To sustain a finding of guilt beyond reasonable doubt, the trial court wove together several pieces of
circumstantial evidence.

The Rules of Court provides that circumstantial evidence is sufficient for a conviction if:

(1) there is more than one circumstance;

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

(3) the combination of all the circumstances is such as to produce a conviction beyond a reasonable
doubt. [Sec. 5, Rule 133].

Although no general rule has been formulated as to the quantity of circumstantial evidence sufficient
for a conviction, the established requirement is that the circumstances proved must be consistent
with each other, consistent with the hypothesis that the accused is guilty, and at the same time
inconsistent with any other hypothesis except that of guilty [People v. Ludday, 61 Phil. 216; People
v. Contante, G.R. No. L-14639, December 28,1964,12 SCRA 653.]

Thus, using the requirements of the Rules of Court and established jurisprudence as yardsticks, this
Court is called upon, in this appeal, to ultimately determine whether the circumstantial evidence
adduced during the trial are sufficient for a conviction.

The Solicitor General, in his brief [pp. 13-15], enumerated several circumstances in support of a
finding that accused-appellants were guilty beyond reasonable doubt of the murder of Cristita
Balancio Vda. de Angel, which may be summarize as follows:

1. Before April 16, 1973, accused-appellant, Isabelo Trinidad, bore a grudge against
Juan Angel. Trinidad suspected Juan Angel of having burned the rope of his
(Trinidad's) carabao.

2. Trinidad had warned Juan Angel on April 15, 1973, that he (Trinidad) could have
Juan Angel killed at anytime, even inside the latter's house.

3. In the evening of April 16, 1973, Bonifacio Palding, saw Trinidad and Condaya (in
the course of a drinking session with Palding, and Wilfredo Mitrado) converse
secretly some six (6) meters away from Palding and Mitrado. After this conversation,
 Trinidad gave Condaya a home made shotgun and then Trinidad and Condaya,
followed by Palding, and Mitrado, proceeded to the house of Juan Angel.

4. While Palding, was some four (4) meters behind Trinidad and Condaya he
(Palding) heard a gunshot and saw a flash of light near the door of Juan Angel's
house.

5. A few seconds later, Palding, saw Trinidad and Condaya running away from the
house. Palding and Mitrado also ran away in the direction taken by Trinidad and
Condaya.

6. Juan Angel saw Trinidad, Condaya, Palding, and Mitrado running away from the
house as he peeped through a window after he heard the gunshot.

7. When Palding, and Mitrado caught up with Trinidad and Condaya in a certain field,
Palding heard Trinidad instruct Condaya to take the shotgun to Sta. Rosa, Umingan,
Pangasinan and hide it.

8. After the apprehension of Condaya on April 20 or 21, 1973, the home-made

shotgun was recovered on top of a "colibangbang" tree behind the house of
Condaya's parents, together with three (3) live cartridges hidden in a bamboo grove
nearby.

To this enumeration may be added three (3) more circumstances: (1) that the victim was found dead
near the door inside her son Juan Angel's house; (2) that the victim died of hemorrhage caused by
gunshot wounds; and (3) that two pellets were recovered from her body.

All of these circumstances, eleven (11) in all, have been proven by direct evidence. Together, these
circumstances lead to the conclusion that accused-appellants Trinidad and Condaya were guilty
beyond reasonable doubt for the shooting of Cristita Balancio Vda. de Angel.

Even if the eighth circumstance cited by the Solicitor General — that the shotgun and the
ammunition were recovered in the vicinity of the house of Condaya's parents — is disregarded on
the ground that the recovery was the fruit of the tainted confession, the result would be the same
because of the overwhelming circumstantial evidence.

Two (2) of the circumstances also manifest a community of purpose indicative of a conspiracy
between Trinidad and Condaya, which would make both of them equally guilty of the crime [People
v. Garcia, G.R. Nos. L-26105, February 18, 1986, 141 SCRA 336], although only one of them may
have pulled the trigger and actually fired the fatal shot. Where a conspiracy has been proven, a
showing as to who inflicted the fatal wound is not required. [People v. Tala, G.R. Nos. L-69153-54,
January 30, 1986,141 SCRA 240].

The rule is that conspiracy must be shown to exist by direct or circumstantial evidence, as clearly
and convincingly as the commission of the crime itself [People v. Vicente, G.R. No. L-26241, May
21, 1969, 28 SCRA 247]. In the instant case, the third circumstance cited by the Solicitor General
(that Trinidad pulled Condaya away from Palding and Mitrado to converse secretly and then gave
him the shotgun before they all went to Juan Angel's house), coupled with the seventh (that Trinidad
told Condaya to hide the shotgun as they were running away from Juan Angel's house), sufficiently
proves the conspiracy between Trinidad and Condaya. The conduct of accused-appellants before,
during and after the commission of the crime are circumstances showing the presence of conspiracy
[People v. Cabiltes, G.R. No. L-18010, September 25, 1968, 25 SCRA 112].

The crime committed was murder with the qualifying circumstance of treachery, as characterized by
the fact that the victim was shot at close range while she was asleep, thus ensuring the commission
of the crime without risk to the assailants [People v. Dequina, 60 Phil. 279 (1934)]. That Juan Angel,
and not his mother, was apparently the intended victim is not incompatible with the existence of
treachery. Treachery may be taken into account even if the victim of the attack was not the person
whom the accused intended to kill. However, evident premeditation may not be considered as a
qualifying circumstance as it cannot be said that the assailants premeditated on the killing of the
actual victim [People v. Mabug-at, 51 Phil. 967 (1926); People v. Guillen, 85 Phil. 307 (1950)]. Thus,
evident premeditation, although alleged in the information, may not be considered as a qualifying
circumstance.

With the abolition of the death penalty in the 1987 Constitution, murder is now penalized
by reclusion temporal in its maximum period to reclusion perpetua. Absent any modifying
circumstances, the penalty is imposable in its medium period, or from eighteen (18) years, eight (8)
months and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, the range
of the penalty is lowered by one degree to prision mayor in its maximum period to reclusion
temporal in its medium period, or from ten (10) years and one (1) day to seventeen (17) years and
four (4) months.

WHEREFORE, the decision of the court a quo is MODIFIED and the Court, in the exercise of its
discretion, sentences accused-appellants to suffer the indeterminate penalty of from fourteen (14)
years and one (1) day of reclusion temporal, as minimum, to twenty (20) years of reclusion temporal,
as maximum, and to indemnify the heirs of the victim in the amount of P30,000.00.

SO ORDERED.

Fernan (Chairman), Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

G.R. No. L-204 May 16, 1947

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. GERARDO

CORNEL, Defendant-Appellant.

Pablo Anzures for appellant.

Office of the Assistant Solicitor General Gianzon and Solicitor Jimenez for appellee.

PARAS, J.:

This is an appeal from a judgment of the Court of First Instance of Albay sentencing the
defendant, for the crime of homicide, to an indeterminate prison term ranging from 8
years and 1 day of prision mayor to 14 years, 8 months and 1 day of reclusion
temporal, with corresponding accessory penalties, to indemnify the heirs of the
deceased, Fabian Burac, in the sum of P2,000, and to pay the costs.   chanroblesvirtualawlibrary chanrobles virtual law library
The first feature of appellant's case as presented by his counsel de oficio, refers to the
alleged inadequacy of the evidence for the prosecution establishing appellant's identity.
Trinidad Coral, however, personally saw (1) the appellant suddenly assault her
deceased husband (Fabian Burac) with a bolo as the latter was descending the stairs of
his house in the Barrio of San Miguel, Municipality of Tabaco, Province of Albay, at
about 6 o'clock in the afternoon of June 8, 1945; (2) after Fabian Burac (then wounded
in the forehead) fell, the appellant threw a stone which hit Fabian's right clavicle, and
(3) the appellant thereafter fled in the direction of his house. The positive testimony of
Trinidad was given full credit by the trial court, and the latter's advantage of observing
and hearing the witness should not be disregarded particularly where, as in this case,
Trinidad knew the appellant well and the latter merely relies on the conjecture that
Trinidad might have made a mistake in identifying her husband's assailant, considering
the time of the attack. Apart, therefore, from the testimony of another witness for the
government (Caspara Bendicio) to the effect that when she asked Fabian not long after
the incident in question as to what had happened, Fabian replied that he had been
boloed by the appellant, which testimony (alleged by the appellant to be inadmissible)
was accepted by the trial court under the rule of the res gestae, there is sufficient proof
regarding appellant's identity. Moreover, it should be remembered that the appellant
was prosecuted, though only for physical injuries, even before Fabian's death which
occured several day after June 8, 1945.   chanroblesvirtualawlibrary chanrobles virtual law library

Under the third assignment of error, counsel for the appellant adopts the view that the
wound on Fabian's forehead, described by Dr. Mariano Cruel, a government witness, as
"an incised vertIcal wound extending from a little above the middle of the eyebrows
down to the lower root of the nose," and cutting "the frontal and the nasal bones also,"
was produced not by a bolo or any long, sharp-cutting weapon but by an irregular and
hard object with a sharp edge such as a heavy piece of stone with one or more sharp
edges which, when thrown forcibly from a distance, will necessarily produce, a small
apparently "incised" wound and render the victim unconscious. This contention may be
tenable in forensic medicine, but it is still conjectural and cannot be accepted where a
criminal assault is proved through an eyewitness.   chanroblesvirtualawlibrary chanrobles virtual law library

Contrary to appellant's pretension, the death of Fabian Burac is established by the

testimony of his wife and mother-in-law. The certificate of the civil registrar of Tabaco
dated August 3, 1945, to the effect that the matter had not been registered in his
office, merely shows that no report was made up to the date mentioned, but it cannot
conclusively negate the fact of Fabian's death.   chanroblesvirtualawlibrary chanrobles virtual law library

We have no doubt that Fabian Burac died, as certified by Dr. Mariano Cruel, "of tetanus
secondary to the infected wound." When Fabian last reported for treatment on June 15,
1945, Dr, Cruel already noticed Fabian's rigid muscles and slight lock-jaw, and this is
the very reason why he prescribed anti-tetanic serum, which, not being then available
in the place, was never actually administered on the patient. Appellant's surmise that
Fabian might not have died of tetanus, because there are other diseases sometimes
exhibiting symptoms of tetanus, cannot prevail against the conclusion of Dr. Cruel who
in fact treated Fabian's wound and saw the manifestations of tetanus. The appellant
must of course be held responsible for the natural consequences of his unlawful act.
(People  vs. Borbano, 76 Phil., 702.)chanrobles virtual law library
Appellant's defense of alibi - that between 5 p.m. of June 8, 1945 and the morning of
June 9, 1945, he was in Tabaco, Albay, - may be worth inquiring into, if Trinidad Coral
(already found to the truthful) was not an eyewitness to appellant's criminal attack. The
motive for the offense is undoubtedly supplied by the circumstance that Fabian once
arrested and threatened the appellant during the Japanese occupation.  chanroblesvirtualawlibrary chanrobles virtual law library

The appealed judgment is hereby affirmed, with costs against the appellant. So
ordered.  
chanroblesvirtualawlibrary chanrobles virtual law library

Pablo, Perfecto, Bengzon, Hontiveros, and Tuason, JJ., concur.