THIRD DIVISION

RAMONITO MANABAN, G.R. No. 150723

Petitioner,
Present:
QUISUMBING, J.,
Chairperson,
- versus - CARPIO,
CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.
COURT OF APPEALS and Promulgated:
THE PEOPLE OF THE PHILIPPINES,
Respondents. July 11, 2006
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - -x
DECISION
CARPIO, J.:
The Case
This is a petition for review[1] of the Decision[2] dated 21 May
2001 and the Resolution[3] dated 8 November 2001 of the
Court of Appeals in CA-G.R. CR No. 23790. In its 21 May 2001
Decision, the Court of Appeals affirmed the Decision of the
Regional Trial Court of Quezon City, Branch 219 (trial court),
finding Ramonito Manaban (Manaban) guilty of the crime of
homicide. In its 8 November 2001 Resolution, the Court of
Appeals modified its Decision by reducing the award for loss
of earning capacity.
The Facts
The facts as narrated by the trial court are as follows:

On October 11, 1996, at around 1:25 oclock in the morning,

Joselito Bautista, a father and a member of the UP Police
Force, took his daughter, Frinzi, who complained of difficulty
in breathing, to the UP HealthCenter. There, the doctors
prescribed certain medicines to be purchased. Needing
money therefore, Joselito Bautista, who had taken alcoholic
drinks earlier, proceeded to the BPI Kalayaan Branch to
withdraw some money from its Automated Teller Machine
(ATM).
Upon arrival at the bank, Bautista proceeded to the ATM
booth but because he could not effectively withdraw money,
he started kicking and pounding on the machine. For said
reason, the bank security guard, Ramonito Manaban,
approached and asked him what the problem was. Bautista
complained that his ATM was retrieved by the machine and
that no money came out of it. After Manaban had checked
the receipt, he informed Bautista that the Personal
Identification Number (PIN) entered was wrong and advised
him to just return the next morning. This angered Bautista all
the more and resumed pounding on the machine. Manaban
then urged him to calm down and referred him to their
customer service over the phone. Still not mollified, Bautista
continued raging and striking the machine. When Manaban
could no longer pacify him, he fired a warning shot. That
diverted the attention of Bautista. Instead of venting his ire
against the machine, he confronted Manaban. After some
exchange of words, a shot rang out fatally hitting Bautista. [4]
On 24 October 1996, Manaban was charged with the crime of
murder. The Information states:
That on or about the 11th day of October 1996, in Quezon
City, Philippines, the above-named accused, armed with a
gun, and with intent to kill, qualified by treachery, did then
and there wilfully, unlawfully and feloniously attack, assault
and employ personal violence upon the person of one
JOSELITO BAUTISTA, by then and there, shooting him at the
back portion of his body, thereby inflicting upon said
JOSELITO BAUTISTA mortal wounds which were the direct and

immediate cause of his untimely death, to the damage and

prejudice of the heirs of the said JOSELITO BAUTISTA. [5]
When arraigned on 4 December 1996,[6] Manaban
pleaded not guilty to the offense charged. Trial then followed.
The Trial
The Prosecutions Version
The prosecution presented six witnesses: (1)
Faustino Delariarte (Delariarte); (2)
SPO1 Dominador Salvador (SPO1 Salvador); (3)
Rodolfo Bilgera (Bilgera); (4) Celedonia H. Tan (Tan); (5) Dr.
Eduardo T. Vargas (Dr. Vargas); and (6) Editha Bautista
(Editha).
Delariarte was a security guard who was employed by the
same security agency as Manaban. Delariarte testified that in
the early morning of 11 October 1996, their duty officer,
Diosdado Morga, called him and informed him that one of the
guards stationed at the BPI Kalayaan Branch (BPI Kalayaan)
was involved in a shooting incident. When he arrived at the
bank, Delariarte saw Manaban inside the bank using the
phone. He also saw Joselito Bautista (Bautista) lying on the
ground but still alive. He then told their company driver,
Virgilio Cancisio (Cancisio), to take Bautista to the hospital
but to be careful since there was a gun tucked in Bautistas
waist. Bautista allegedly reeked of alcohol. Delariarte further
testified that when Manaban came out of the bank, Manaban
admitted to Delariarte that he shot Bautista.[7]
SPO1 Salvador was a police investigator assigned at Station
10, Philippine National Police-Central Police District Command
(PNP-CPDC) of Quezon City. SPO1 Salvador testified that
on 11 October 1996, about 2:05 a.m., the duty desk officer
SPO2 Redemption Negre sent him, SPO1 Jerry Abad and SPO1
Ruben Reyes to BPI Kalayaan to investigate an alleged
shooting incident. SPO1 Salvador testified that when they
arrived at BPI Kalayaan, they were met by Delariarte and
Cancisio. Manaban then approached them and surrendered
his service firearm, a .38 caliber revolver, to SPO1 Salvador.
Manaban allegedly admitted shooting Bautista. SPO1

Salvador and his team investigated the crime scene.

According to SPO1 Salvador, he saw Bautista lying on his
back near the Automated Teller Machine (ATM). A .38 caliber
revolver inside a locked holster was tucked in Bautistas right
waist. SPO1 Salvador noticed that Bautista, who was still
breathing, had been shot in the back. They brought Bautista
to the East Avenue Medical Center where Bautista later died.
Thereafter, they proceeded to the police station and turned
over Manaban to their desk officer for proper disposition and
investigation.[8]
Dr. Vargas, National Bureau of Investigation (NBI) MedicoLegal Officer, conducted an autopsy on Bautistas cadaver. Dr.
Vargas testified that Bautista died of a gunshot wound.
According to him, the point of entry of the bullet was at the
back, on the right side of the body and there was no exit
point. He stated that he was able to recover the slug from the
left anterior portion of the victims body and that he later
submitted the slug to the NBI Ballistics Division. Dr. Vargas
further stated that the bullet wound was fatal because the
bullet hit the right lung and lacerated parts of the liver,
stomach and the pancreas. Based on the location of the
gunshot wound, Dr. Vargas deduced that the assailant must
have been behind the victim, on the right side, when he shot
the victim.[9] Dr. Vargas also testified that the absence of
signs of near-fire indicates that the distance between the
muzzle of the gun and the point of entry was more than 24
inches. During cross-examination, Dr. Vargas testified that he
was able to take blood samples from the victim which, based
on the NBI Chemistry Division analysis, tested positive for
alcohol.[10] Dr. Vargas issued a certificate of post-mortem
examination[11] and an autopsy report.[12]
Bilgera was a ballistician at the Firearms Investigation
Division (FID) of the NBI. Bilgera testified that upon receiving
a letter-request dated 11 October 1996 from PNP Police
Inspector Percival Fontanilla, he conducted a ballistic
examination on the following specimens submitted to him:
1. One (1) ARMSCOR 2015, Caliber .38 Revolver, SN-28909
marked DBS;

2. One (1) ARMSCOR 200, Caliber .38 Revolver, SN-P03471

marked DBS;
3. One (1) Caliber .38 one badly deformed copper coated
lead bullet marked RM;
4. Two (2) Caliber .38 empty shells marked RM-1 and RM-2;
5. One (1) Caliber .38 misfired ammunition marked RM-3;
6. Nine (9) Caliber .38 ammunition marked RM-4, RM-5, RM-6
and JB-1 to JB-6; and
7. One (1) Caliber .38 deformed copper coated lead bullet
marked JB. (Re-FID No. 606-14-1096 [N-96-2047]).[13]
Based on the examination, Bilgera concluded that the bullet
which was extracted from Bautistas body by the medico-legal
officer was fired from the ARMSCOR 2015 .38 Caliber revolver
with Serial No. 28909[14] and that the empty shells also came
from the same gun. Bilgera submitted a written report[15] on
the result of his examination.
Editha, the widow of Joselito Bautista, testified that she was
married to Bautista on 22 December 1993 in civil rites and
that they have four children, the eldest of whom was 13
years old. Editha stated that her husband, who was a
member of the University of the Philippines Police Force (UP
Police Force) since 1985, was receiving a monthly salary
of P5,050 at the time of his death. She narrated that on 11
October 1996, about 1:25 a.m., her husband brought their
daughter Frinzi who had an asthma attack to the
UP Health Center where she was confined for three days.
According to Editha, her husband then left to withdraw
money at BPI Kalayaan for the purchase of medicines. Later,
she was fetched by members of the UP Police Force who
informed her that her husband had been shot. Editha claimed
that as a consequence of her husbands death, she spent
more than P111,000[16] for the nine-day wake, embalmment
and funeral services.[17]
The prosecution and the defense agreed to dispense with
the testimony of Tan, the Assistant Manager of BPI
Kalayaan. Instead, they just agreed to stipulate that on 11
October 1996, about 7:45 a.m., Tan and BPI Custodian Elma
R. Piano retrieved BPI Express Teller Card No. 3085-2616-21

issued to Bautista which was captured by the ATM because a

wrong Personal Identification Number (PIN) was entered. [18]
The Defenses Version
The defense presented four witnesses: (1) Manaban;
(2) Renz Javelona (Javelona); (3) Tan; and (4) Patrick Peralta
(Peralta).
Manaban, the accused, testified that he was employed by
Eagle Star Security Agency as a security guard and was
assigned at BPI Kalayaan. On 10 October 1996, he was on
duty from 7:00 p.m. until7:00 a.m. the following day.
Manaban narrated that on 11 October 1996, about 1:40 a.m.,
Bautista tried to withdraw money from the ATM. Manaban
then saw Bautista pounding and kicking the ATM. When
Manaban asked Bautista what was the problem, Bautista
replied that no money came out from the machine. According
to Manaban, Bautista appeared to be intoxicated.
Manaban looked at the receipt issued to Bautista and saw
that the receipt indicated that a wrong PIN was entered.
Manaban informed Bautista that the ATM captured Bautistas
ATM card because he entered the wrong PIN. He then advised
Bautista to return the following day when the staff in charge
of servicing the ATM would be around.
Bautista replied that he needed the money very badly and
then resumed pounding on the ATM. Manaban tried to stop
Bautista and called by telephone the ATM service personnel
to pacify Bautista. Bautista talked to the ATM service
personnel and Manaban heard him shouting invectives and
saw him pounding and kicking the ATM again.
When Manaban failed to pacify Bautista, Manaban fired a
warning shot in the air. Bautista then faced him and told him
not to block his way because he needed the money very
badly. Bautista allegedly raised his shirt and showed his gun
which was tucked in his waist. Manaban stepped back and
told Bautista not to draw his gun, otherwise he would shoot.

However, Bautista allegedly kept on moving toward

Manaban, who again warned Bautista not to come near him
or he would be forced to shoot him. Bautista suddenly turned
his back and was allegedly about to draw his gun. Fearing
that he would be shot first, Manaban pulled the trigger and
shot Bautista.
Manaban recounted that he then went inside the bank and
called the police and his agency to report the incident. While
he was inside the bank, a fellow security guard arrived and
asked what happened. Manaban answered, wala yan, lasing.
Later, a mobile patrol car arrived. Manaban related the
incident to the police officer and informed him that Bautista
was still alive and had a gun. Manaban then surrendered his
service firearm to the police officer. According to
Manaban, he fired his gun twice once in the air as a warning
shot and the second time at Bautista who was about four
meters from him.[19]
On cross-examination, Manaban further explained that after
he fired the warning shot, Bautista kept coming toward him.
Manaban pointed his gun at Bautista and warned him not to
come closer. When Bautista turned his back, Manaban
thought Bautista was about to draw his gun when he placed
his right hand on his waist. Fearing for his life, he pulled the
trigger and shot Manaban. According to Manaban, [n]oong
makita ko siya na pabalikwas siya, na sadya bubunot ng
baril, sa takot ko na baka maunahan niya ako at mapatay,
doon ko na rin nakalabit yung gatilyo ng baril.Manaban
declared that it did not occur to him to simply disable the
victim for fear that Bautista would shoot him first. [20]
Javelona was an ATM Service Assistant of BPI. Javelona
testified that on 11 October 1996, between 1:30
a.m. and 2:00 a.m., she received a call from a client at BPI
Kalayaan. The client, who was later identified as Bautista,
complained: Nagwi-withdraw ako dito sa ATM Kalayaan. Mali
daw yung PIN ko, alam ko tama yung PIN ko. Ilang beses ko
nang ginamit, mali pa rin. Kailangan kong mag-withdraw.

Javelona tried to placate Bautista and advised him not to

insert his card anymore because it might be captured by the
machine and to try again later in the morning. Bautista
allegedly answered angrily: Na capture na nga, eh! Tama na
nga yung PIN number [sic]. Hindi ako pwedeng hindi
makakuha ng pera. Kailangan kong bumili ng gamot para sa
anak ko. Hindi ko naman kasalanan ito.Javelona replied: Sir,
hindi ho natin makukuha ang card ninyo ngayon kasi ang
makaka-open lang ho ng ATM machine ay ang officer ng
Kalayaan Branch. Even if makuha natin ang card ninyo
ngayon, hindi pa ninyo magagamit ngayon. Magagamit lang
ninyo as soon as mag-pa-encode kayo ng PIN number [sic].
Bautista then reiterated angrily his dire need to withdraw
money for the medicine of his daughter. Javelona apologized
to Bautista and informed him that there was really nothing
she could do at that time. She also advised Bautista to go
back to the bank at 9:00 a.m. to get his ATM card and also to
withdraw money over the counter. Bautista refused to be
pacified and started cursing so Javelona decided to hang up
the phone.[21]
Tan, the Assistant Manager of BPI Kalayaan, testified that
when she reported for work in the morning of 11 October
1996, she discovered that the ATM was out of order.
According to Tan, the ATM keyboard was not properly
mounted and the keys were damaged. Also, the telephone
beside the ATM was hung up. Tan then called Peralta, the
technician, to have the ATM repaired. When Peralta opened
the ATM, they found Bautistas ATM card which was captured
by the machine.[22]
Peralta, a Customer Engineer Specialist, testified that on 11
October 1996, BPI Kalayaan sought his assistance regarding
their ATM. When Peralta arrived at BPI Kalayaan, he talked to
Tan and then proceeded to the ATM to assess the damage.
According to Peralta, the ATM keyboard was damaged and
mis-aligned.[23]
The Trial Courts Ruling

On 14 April 1999, the trial court rendered judgment, the

dispositive portion of which reads:

The Court of Appeals Ruling

WHEREFORE, finding the accused guilty beyond reasonable

doubt of the crime of Homicide, the Court hereby sentences
the accused to suffer the penalty of imprisonment ranging
from FOUR (4) YEARS and TWO (2) MONTHS of Prision
Correccional, as minimum, to EIGHT (8) YEARS and ONE (1)
DAY of Pris[i]on Mayor, as maximum; to pay indemnity to the
heirs of Joselito Bautista for his death in the amount
ofP75,000.00; and actual damages in the amount
of P111,324.00 for the nine-day wake, embalm[ing] and
funeral services, and P1,418,040.00 for the loss of Bautistas
earning capacity, the last to be paid by installment at
least P3,030.00 a month until fully paid with the balance
earning interest at the rate of six percent (6%) per annum;
and to pay the costs.

On appeal, the Court of Appeals affirmed the trial courts

decision. The Court of Appeals later reconsidered and
modified its decision with respect only to the award of loss of
earning capacity. Using the formula 2/3 [80 age at the time of
death] x [gross annual income 80% gross annual income],
the Court of Appeals recomputed the award for loss of
earning capacity. In its Resolution dated 8 November 2001,
the Court of Appeals reduced the award for the loss of the
victims earning capacity from P1,418,040 to P436,320.

SO ORDERED.[24]

1. The Respondent Court gravely erred in affirming the

erroneous factual appreciation and interpretation by the trial
court a quo in practically affirming the decision of the latter
court which are based on a clear misappreciation of facts and
findings grounded entirely on speculations, surmises or
conjectures in a way probably not in accord with law or with
the applicable jurisprudence of the Supreme Court.
2. The Respondent Court gravely erred in ignoring petitioners
self-defense on the sole fact that the entrance of the
deceased victims wound was from the back.

The trial court held that the defense failed to establish selfdefense as a justifying circumstance. According to the trial
court, unlawful aggression, which is the most essential
element to support the theory of self-defense, was lacking in
this case. The trial court found that, contrary
to Manabans claim, Bautista was not about to draw his gun to
shoot Manaban. Evidence show that Bautistas gun was still
tucked in his waist inside a locked holster. Furthermore, the
trial court held that Bautista could not have surprised
Manaban with a preemptive attack because Manaban himself
testified that he already had his gun pointed at Bautista
when they were facing each other. The trial court likewise
rejected Manabans claim of exemption from criminal liability
because he acted under the impulse of an uncontrollable fear
of an equal or greater injury. The trial court held that the
requisites for the exempting circumstance of uncontrollable
fear under paragraph 6, Article 12 of the Revised Penal Code
are not present in this case. However, the trial court credited
Manaban with two mitigating circumstances: voluntary
surrender and obfuscation.

The Issues
In his petition for review, Manaban submits that:

3. The Respondent Court gravely erred in concluding that

petitioner failed to establish unlawful aggression just because
the holster of the victim was still in a lock position.
4. Granting arguendo that petitioner made a mistake in his
appreciation that there was an attempt on the part of the
deceased victim to draw his gun who executed bumalikwas,
such mistake of fact is deemed justified.
5. Finally, the Respondent Court gravely erred in awarding
exorbitant and baseless award of damages to the heirs of
deceased victim.[25]

The Courts Ruling

The petition is partly meritorious.
An appeal in a criminal case opens the entire case for review.
The reviewing tribunal can correct errors though unassigned
in the appeal, or reverse the lower courts decision on
grounds other than those the parties raised as errors. [26]
Unlawful Aggression is an Indispensable Requisite of
Self-Defense
When the accused invokes self-defense, he in effect admits
killing the victim and the burden is shifted to him to prove
that he killed the victim to save his life.[27] The accused must
establish by clear and convincing evidence that all the
requisites of self-defense are present.[28]
Under paragraph 1, Article 11 of the Revised Penal Code, the
three requisites to prove self-defense as a justifying
circumstance which may exempt an accused from criminal
liability are: (1) unlawful aggression on the part of the victim;
(2) reasonable necessity of the means employed to prevent
or repel the aggression; and (3) lack of sufficient provocation
on the part of the accused or the person defending himself.
[29]
Unlawful aggression is an indispensable requisite of selfdefense.[30] Self-defense is founded on the necessity on the
part of the person being attacked to prevent or repel the
unlawful aggression.[31] Thus, without prior unlawful and
unprovoked attack by the victim, there can be no complete
or incomplete self-defense.[32]
Unlawful aggression is an actual physical assault or at least a
threat to attack or inflict physical injury upon a person. [33] A
mere threatening or intimidating attitude is not considered
unlawful aggression,[34] unless the threat is offensive and
menacing, manifestly showing the wrongful intent to cause
injury.[35] There must be an actual, sudden, unexpected attack
or imminent danger thereof, which puts the defendants life in
real peril.[36]
In this case, there was no unlawful aggression on the part of
the victim. First, Bautista was shot at the back as evidenced
by the point of entry of the bullet. Second, when Bautista was

shot, his gun was still inside a locked holster and tucked in
his right waist. Third, when Bautista turned his back at
Manaban, Manaban was already pointing his service firearm
at Bautista. These circumstances clearly
belie Manabans claim of unlawful aggression on Bautista's
part. Manaban testified:
ATTY. ANCANAN
Q: You said the victim showed his gun by raising his shirt?
A: Yes, sir.
Q: The victim never drew his gun?
A: He was about to draw the gun when he turned around.
Q: My question is when the victim was facing you, the
victim never drew his gun?
A: Not yet, sir.
Q: And when you told the victim not to come close, he did
not come closer anymore?
A: He walked towards me, sir.
Q: For how many steps?
A: I cannot remember how many steps.
Q: And according to you, while he was facing you and
walking towards you he suddenly turned his back to
you, is that correct?
A: Bumalikwas po at parang bubunot ng baril.
Q: Let us get the meaning of bumalikwas, tumalikod sa iyo?
A: Bumalikwas po (witness demonstrating).
Q: Will you please demonstrate to us how the victim
bumalikwas?
A: When he was facing me and I told him, Sir, you just be
there otherwise I am going to take the gun and at that
moment, he, the victim turned his back and
simultaneously drew the gun.

Q: When he was facing you, the victim never drew his gun, is
that correct?
A: Not yet, sir.

He is asking the question so he has to answer.

A: No, sir, the gun was on his waist.
ATTY. ANCANAN

Q: And according to you, it was at that point when he

turned his back on you that he tried to draw his gun?
A: Yes, sir.
Q: You said that he tried to draw, but the fact is he
merely placed his hand on his waist?
A: No, sir, when I saw him, when he was hit, I saw him,
the hand was already on the gun but still tucked on
his waist (witness places his hand on his right waist
with fingers open).

Q: At the precise time that you fired your second shot,

you could have aimed your gun at the extremities of
the victim, meaning legs or arms, is that correct?
A: When I saw him that he was about to draw his gun
because of my fear that he would get ahead of me and
he would kill me, I did not mind anymore, I just
inunahan ko siya.
ATTY. CARAANG

Q: And it was at that precise moment while the

victims back was turned on you that you fired your
shot?
A: When he was about to turn his back and it seems
about to take his gun, that is the time I shot him
because of my fear that he would be ahead in pulling
his gun and he might kill me.

May I request that the answer of the witness be

quoted as is?

Q: When you said, when you fired your shot, the

victims gun was still tucked in his right waist, is that
correct?
A: Yes, sir, his hand was on his waist.

ATTY. ANCANAN

Q: You just answer the question. Was the victims gun

still tucked on his waistline?
A: Yes, sir.
Q: And his hand was merely placed on his hips. The victims
right hand was merely placed on his right hip?
ATTY. CARAANG
I object. The witness testified that he was about to draw his
gun.
COURT

A: Noong makita ko siya na pabalikwas siya, na sabay

bubunot ng baril, sa takot ko na baka maunahan niya
ako at mapatay, doon ko na rin nakalabit yung gatilyo
ng baril ko.

Q: Mr. Witness, how long have you been a security guard

before this incident?
A: Around 7 months, sir.
Q: Now, before you were employed as security guard
by the Eagle Star Security Agency, did you undergo
any training as a security guard?
A: Yes, sir.
Q: Where?
A: Camp Crame, sir.
Q: For how long?
A: Three (3) days, sir.
Q: And what did you learn from those 3 days training as
security guard?
A: Our duties as security guard were lectured to us, sir.

Q: Now, were you not taught during the training that

in any given situation, your first duty is to disable first
an aggressor?
ATTY. CARAANG

ATTY. CARAANG
I object, your Honor, it was already answered. He said he was
not given the opportunity to have a second thought and at
that moment he was able to pull the trigger of his gun.

Objection, your Honor, I think that is no longer

material besides, that is not part of my direct
examination.
COURT

ATTY. ANCANAN

Witness may answer.

A: It was taught to us, sir, but it depends on my
situation. If the person kept on doing what I told him
not to do and it would reach a point that it would
endanger my life, of course even if you were in my
place, you would do the same thing,
so nakipagsabayan na ako, sir.
Q: But in this particular case when you fired your second
shot, the victims back was towards you, is that not correct?

The witness already admitted that when he fired his gun,

the victims back was towards the witness, so my last
question is just a follow-up.

ATTY. CARAANG

COURT

Objection, already answered, your Honor.

Objection noted, witness may answer.

COURT

A: What I was thinking at that time, was just to disarm

him but when he turned, bumalikwas, and I saw
that he was going to draw a firearm and that was
when I decided to makipagsabayan.

Witness may answer.

A: No, sir, I shot him only once, not twice.
Q: Please answer the question. When you fired your
second shot . . .
A: Bumalikwas ho yon eh.
Q: Please answer the question.
A: Yes, sir.
Q: And because his back was towards you, you could
have easily disabled him by firing at his leg or at his
arms, is that not correct?

ATTY. CARAANG
But the witness testified that he was not given the
opportunity to have a second thought, that is why right then
and there, he pulled the trigger of his gun.

xxxxxxxxx
RE-DIRECT EXAMINATION
ATTY. CARAANG
Q: Mr. Witness, when you and the victim were facing
each other, the gun was already pointed to him, is it
not? Your gun?
A: Yes, sir, I pointed my gun at him.[37]

The allegation of Manaban that Bautista was about to draw

his gun when he turned his back at Manaban is mere
speculation. Besides, Manaban was already aiming his loaded
firearm at Bautista when the latter turned his back. In that
situation, it was Bautista whose life was in danger
considering that Manaban, who had already fired a warning
shot, was pointing his firearm at Bautista. Bautista, who was
a policeman, would have realized this danger to his life and
would not have attempted to draw his gun which was still
inside a locked holster tucked in his waist. Furthermore, if
Manaban really feared that Bautista was about to draw his
gun to shoot him, Manaban could have easily disabled
Bautista by shooting his arm or leg considering
that Manabans firearm was already aimed at Bautista.
Aggression presupposes that the person attacked must face
a real threat to his life and the peril sought to be avoided is
imminent and actual, not imaginary. [38] Absent such actual or
imminent peril to ones life or limb, there is nothing to repel
and there is no justification for taking the life or inflicting
injuries on another.[39]
Voluntary Surrender and Obfuscation
The trial court credited Manaban with two mitigating
circumstances: voluntary surrender and obfuscation.
It is undisputed that Manaban called the police to report the
shooting incident. When the police arrived, Manaban
surrendered his service firearm and voluntarily went with the
police to the police station for investigation. Thus, Manaban
is entitled to the benefit of the mitigating circumstance of
voluntary surrender.
On obfuscation, we find that the facts of the case do not
entitle Manaban to such mitigating circumstance. Under
paragraph 6, Article 13 of the Revised Penal Code, the
mitigating circumstance of passion and obfuscation is
appreciated where the accused acted upon an impulse so
powerful as naturally to have produced passion or

obfuscation. The requisites of the mitigating circumstance of

passion or obfuscation are: (1) that there should be an act
both unlawful and sufficient to produce such condition of
mind; and (2) that the act which produced the obfuscation
was not far removed from the commission of the crime by a
considerable length of time, during which the perpetrator
might recover his normal equanimity. [40]
In his testimony, Manaban admitted shooting Bautista
because Bautista turned around and was allegedly about to
draw his gun to shoot Manaban. The act of Bautista in turning
around is not unlawful and sufficient cause for Manaban to
lose his reason and shoot Bautista. That Manaban interpreted
such act of Bautista as preparatory to drawing his gun to
shoot Manaban does not make Bautistas act unlawful. The
threat was only in the mind of Manaban and is mere
speculation which is not sufficient to produce obfuscation
which is mitigating.[41] Besides, the threat or danger was not
grave or serious considering that Manaban had the
advantage over Bautista because Manaban was already
pointing his firearm at Bautista when the latter turned his
back. The defense failed to establish by clear and convincing
evidence the cause that allegedly produced obfuscation.
Award of Damages
The records[42] reveal that Bautista was 36 years old at the
time of his death and not 26 years old as stated by the trial
court and the Court of Appeals.[43] Moreover, the annual
salary of Bautista at the time of his death was
already P60,864 and not P60,600.[44] We likewise modify the
formula applied by the Court of Appeals in the computation
of the award for loss of earning capacity. In accordance with
current jurisprudence,[45] the formula for the indemnification
for loss of earning capacity is:
Net Earning = Life Expectancy x [Gross Annual Living
Expenses]
Capacity Income (GAI)
= 2/3(80 age of deceased) x (GAI 50% of GAI)
Using this formula, the indemnification for loss of earning
capacity should be:

Net Earning Capacity = 2/3 (80 36) x [P60,864 (50%

x P60,864)]
= 29.33 x P30,432
= P892,570.56
With regard to actual damages, the records show that not all
the expenses that the Bautista family allegedly incurred were
supported by competent evidence. Editha failed to present
receipts or any other competent proof for food expenses and
rental fee for jeeps for the funeral. Editha merely submitted a
typewritten Summary of Food Expenses & Others. [46] A mere
list of expenses, without any official receipts or any other
evidence obtainable, does not to prove actual expenses
incurred.[47] Competent proof of the actual expenses must be
presented to justify an award for actual damages. [48] In this
case, only the following expenses were duly supported by
official receipts and other proof :
1.
Embalming fee[49] P11,000
2.
Bronze Casket[50] 25,000
3.
Cadillac Hearse fee[51] 3,500
4.
Funeral Services[52] 30,000
Total P69,500
Thus, we reduce the actual damages granted from P111,324
to P69,500.
We likewise reduce the indemnity for death from P75,000
to P50,000 in accordance with prevailing jurisprudence. [53]
WHEREFORE, we AFFIRM with MODIFICATION the
Decision of the Court of Appeals dated 21 May 2001 and its
Resolution dated 8 November 2001. We find petitioner
Ramonito Manaban guilty beyond reasonable doubt of the
crime of Homicide. Applying the Indeterminate Sentence Law
and taking into account the mitigating circumstance of
voluntary surrender, Ramonito Manaban is hereby sentenced
to suffer an indeterminate penalty ranging from six years and
one day of prision mayor as minimum to 12 years and one
day of reclusion temporal as maximum. RamonitoManaban is
ordered to pay the heirs of Joselito Bautista: P892,570.56 as
indemnity for loss of earning capacity; P69,500 as actual
damages; and P50,000 as indemnity for death.

SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CONCHITA CARPIO MORALES DANTE O. TINGA

Associate Justice Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been
reached in consultation before the case was assigned to the
writer of the opinion of the Courts Division.
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and
the Division Chairpersons Attestation, I certify that the
conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the
opinion of the Courts Division.

ARTEMIO V. PANGANIBAN
Chief Justice

[24]

Rollo, p. 56. Records, p. 319.

[25]
[1]

Under Rule 45 of the 1997 Rules of Civil Procedure.

[2]
Penned by Associate Justice Portia Alio-Hormachuelos, with
Associate Justices Fermin A. Martin, Jr. and Mercedes GozoDadole, concurring.
[3]
Penned by Associate Justice Portia Alio-Hormachuelos, with
Associate Justices Martin S. Villarama, Jr. and Mercedes GozoDadole, concurring.
[4]

Rollo, p. 47.
CA rollo, p. 12; Records, p. 1.
[6]
The trial court Decision erroneously stated that the
arraignment was on 5 December 1996. However, the
Certificate of Arraignment, Minutes, and Order of the trial
court show that Manaban was arraigned on 4 December
1996. Records, pp. 28-30.
[7]
TSN, 27 January 1998.
[8]
Rollo, pp. 48-49; TSN, 5 and 19 May 1997.
[9]
TSN, 7 August 1997.
[10]
TSN, 13 November 1997.
[11]
Exh. X, records, p. 173.
[12]
Exh. Y, records, p. 174.
[13]
Records, p. 167.
[14]
This was the service firearm confiscated from Manaban.
[15]
FID Report No. 603-11-1096, dated 15 October 1996.
Records, pp. 167-168.
[16]
Editha submitted a list of expenses incurred with a total
of P111,324. Exh. LL, records, p. 187.
[17]
See Exhs. II, JJ, KK, and LL, records, pp. 184-187.
[18]
TSN, 10 June 1997, pp. 44-46. See certification letter of
Tan and Piano, dated 14 October 1996, addressed to the
State Investigation and Intelligence Division of the Philippine
National Police in Quezon City, records, p. 164.
[19]
TSN, 29 July 1998, pp. 5-24.
[20]
Id. at 25-42.
[21]
TSN, 14 October 1998.
[22]
TSN, 18 November 1998.
[23]
TSN, 21 October 1998.
[5]

Rollo, pp. 11-12.

People v. Jubail, G.R. No. 143718, 19 May 2004, 428 SCRA
478.
[27]
Senoja v. People, G.R. No. 160341, 19 October 2004, 440
SCRA 695; People v. Gadia, 418 Phil. 30 (2001).
[28]
People v. Gallego, 453 Phil. 825 (2003).
[29]
Catalina Security Agency v. Gonzales-Decano, G.R. No.
149039, 27 May 2004, 429 SCRA 628; People v. Pansensoy,
437 Phil. 499 (2002).
[30]
People v. Gallego, supra note 28.
[31]
People v. Gadia, 418 Phil. 30 (2001).
[32]
People v. Gallego, supra.
[33]
People v. Catbagan, G.R. Nos. 149430-32, 23 February
2004, 423 SCRA 535.
[34]
Toledo v. People, G.R. No. 158057, 24 September 2004,
439 SCRA 94.
[35]
People v. Catbagan, supra.
[36]
Cabuslay v. People, G.R. No. 129875, 30 September 2005,
471 SCRA 241; People v. Escarlos, G.R. No. 148912, 10
September 2003, 410 SCRA 463; Roca v. Court of Appeals,
G.R. No. 114917, 29 January 2001, 350 SCRA 414.
[26]

[37]

TSN, 29 July 1998, pp. 28-41, 46 (Emphasis supplied).

People v. Damitan, 423 Phil. 113 (2001).
[39]
Senoja v. People, supra note 27.
[40]
People v. Pansensoy, supra note 29.
[41]
People v. Malejana, G.R. No. 145002, 24 January 2006.
[42]
See Certificate of Identification of Dead Body (Exh. U),
records, p. 196; Certificate of Post-Mortem Examination (Exh.
X), records, p. 199; Autopsy Report No. N-96-2047 (Exh. Y),
records, p. 200.
[43]
It was the accused, Ramonito Manaban, who was 26 years
old at the time of the shooting incident.
[44]
See Service Record of Bautista (Exh. HH), records, p. 183.
The mistake may be due to the testimony of Editha that
[38]

Bautista was receiving a monthly salary of P5,050 (or an

annual salary of P60,600) at the time of his death.
[45]
Pleyto v. Lomboy, G.R. No. 148737, 16 June 2004, 432
SCRA 329; People v. Agudez, G.R. Nos. 138386-87, 20 May
2004, 428 SCRA 692; Tugade, Sr. v. Court of Appeals, 455
Phil. 258 (2003).
[46]
Exh. LL, records, p. 187.
[47]
See People v. Agudez, supra.
[48]
Pleyto v. Lomboy, supra.
[49]
Exh. II, records, p. 184.
[50]
Exh. JJ, records, p. 185.
[51]
Id.
[52]
Exh. KK, records, p. 186.
[53]
People v. Quirol, G.R. No. 149259, 20 October 2005, 473
SCRA 509; People v. Catbagan, supra note 33; People v.
Daniela, 449 Phil. 547 (2003); People v. Escote, Jr., 448 Phil.
749 (2003); People v. Dungca, 428 Phil. 682 (2002).

Supreme Court of the Philippines

483 Phil. 716
SECOND DIVISION
G.R. No. 160341, October 19, 2004

EXEQUIEL SENOJA, PETITIONER, VS. PEOPLE OF THE

PHILIPPINES, RESPONDENT.

certificate (Exhibits A and B, pp. 13-14, Records; pp. 3-5,

TSN, November 20, 1997).[3]
On August 13, 1997, an Information was filed charging
petitioner Exequiel Senoja with homicide, the accusatory
portion of which reads:
That on April 16, 1997 at around 11 oclock in the morning in
Barangay Zarah, San Luis, Aurora, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, did
then and there, willfully, unlawfully, and feloniously, with
intent to kill, attack, assault, and use personal violence upon
the person of one Leon Lumasac by then and there stabbing
him with a bladed weapon locally known as kolonyal at the
different parts of his body thereby inflicting upon the latter
mortal stab wounds which were the direct and immediate
cause of his death thereafter.

DECISION
CALLEJO, SR., J.:
Before us is a petition for review on certiorari of the
Decision[1] of the Court of Appeals (CA) in People v. Exequiel
Senoja, docketed as CA-G.R. CR No. 26564, affirming with
modification the Decision[2] of the Regional Trial Court (RTC)
of Baler, Aurora, Branch 96, in Criminal Case No. 2259, for
homicide.
The Case For the People
As culled by the Office of the Solicitor General (OSG) in its
comment on the petition, the case stemmed from the
following:
1.
On April 16, 1997, petitioner Exequiel Senoja, Fidel
Senoja, Jose Calica, and Miguel Lumasac were drinking gin in
the hut of Crisanto Reguyal in Barangay Zarah, San Luis,
Aurora. An angry Leon Lumasac suddenly arrived at the said
place, holding a bolo in his right hand and looking for his
brother Miguel. Petitioner and Jose tried to pacify Leon. But
when petitioner approached Leon, the latter tried to hack him
so he embraced Leon and Jose took Leons bolo. Then, Leon
and petitioner talked things out and later reconciled (pp. 2-4,
TSN, November 16, 1998; pp. 2-4, TSN, August 30, 2002; p.
2, TSN, April 21, 1998; p. 5, TSN, March 14, 2001; p. 2, CA
Decision).
2.
Subsequently, Leon walked out of Crisantos hut
followed by petitioner. Suddenly, about ten meters from the
hut, petitioner stabbed Leon at the back. When Leon turned
around, petitioner continued stabbing him until he fell to the
ground. Then, petitioner ran towards the barangay road and
threw away the kolonial knife he used in stabbing Leon.
The latter died on the spot (pp. 2-6, TSN, November 22,
2000; p. 5, TSN, August 30, 2002; p. 3, CA Decision).
3.
Dr. Pura Deveza Valenzuela-Uy, San Luis Municipal
Health Officer, examined the cadaver of Leon and found
multiple lesions on his body and five fatal wounds on his
chest. Dr. Uy issued a medico-legal report and death

1.

2.

3.
4.
5.
6.

7.

CONTRARY TO LAW.[4]
The petitioner admitted killing the victim but invoked the
affirmative defense of self-defense. His version of the fatal
incident is set forth in his petition at bar:
On April 16, 1997 at about 11 oclock in the morning,
Crisanto Reguyal, Fidel Senoja, Jose Calica, Miguel Lumasac,
and Exequiel Senoja were in the hut of Crisanto Reguyal in
Barangay Zarah, San Luis, Aurora, drinking gin;
Leon Lumasac suddenly arrived holding a bolo and
hacked the doorpost of Crisantos hut, angrily demanding for
his brother, Miguel Lumasac, whom he suspected of drying
up the ricefield he was plowing;
At this time, Miguel Lumasac was no longer inside the
hut but fetching water;
To prevent Leon Lumasac from entering the hut,
Exequiel Senoja (appellant) and Jose Calica stood by the door
while simultaneously trying to pacify Leon Lumasac;
Exequiel Senoja with a knife then went outside and
tried to pacify Leon Lumasac but the latter angered by the
gestures of the former tried to hack Exequiel Senoja;
To avoid any injury, Exequiel Senoja embraced Leon
which gave an opportunity to disarm the duo. Jose Calica got
the bolo of Leon and threw it away while Fidel Senoja took
the colonial knife of Exequiel;
Jose Calica and Fidel Senoja were able to pacify Leon
Lumasac so they invited him to get inside the hut. Inside the

hut, Leon Lumasac tried to box Fidel Senoja for siding with his
brother, Miguel, but was prevented by Exequiel Senoja who
held Leons hands;
8.
After a while, Leon Lumasac left but returned and
angrily demanded for his bolo. Jose Calica gave his own bolo
with a sabbard to replace the bolo of Leon which he threw
away;
9.
With Jose Calicas bolo in him, Leon Lumasac left but
only after leaving a threat that something will happen to
Exequiel Senoja for siding with his brother;
10.
After walking for about 10 meters away from the hut,
Leon Lumasac turned around and saw Exequiel Senoja on his
way home following him;
11.
Leon Lumasac walked back to meet Exequiel Senoja
and upon reaching him, the former suddenly and
treacherously hacked the latter at the left side of his head
and right thigh;
12.
Unable to evade the treacherous attack by Leon
Lumasac who persisted in his criminal design, Exequiel
Senoja drew his colonial knife and stabbed Leon Lumasac
in self-defense, inflicting upon him multiple wounds which
caused his death.[5]
On June 7, 2002, the trial court rendered judgment against
the petitioner, finding him guilty beyond reasonable doubt of
the crime charged. The fallo of the decision reads:
WHEREFORE, premises considered, this Court finds accused
Exequiel Senoja GUILTY beyond reasonable doubt of the
crime of Homicide for the death of victim Leon Lumasac and
hereby sentences him, applying Article 64, paragraph 1 of
the Revised Penal Code and Section 1 of the Indeterminate
Sentence Law, (a) to suffer the penalty of twelve (12) years
of prision mayor as minimum to seventeen (17) years and
four (4) months of reclusion temporal as maximum; (b) to
pay the heirs of the victim the amount of Fifteen (sic)
Thousand Pesos (Php 50,000.00) by way of civil indemnity;
and (c) to pay the costs.
SO ORDERED.[6]
In due course, the petitioner appealed the decision to the CA
which rendered judgment affirming, with modification, the
decision of the RTC. The petitioner now seeks relief from this
Court, contending that:

The Honorable Court of Appeals failed to appreciate vital

facts which, if considered, would probably alter the result of
this case on appeal finding appellants plea of self-defense
credible.[7]
The petitioner faults the CA for its analysis of his testimony,
as follows:
The injuries suffered by the petitioner at the left side of his
head and right thigh was confirmed by Dr. Rodolfo Eligio in
open court. The relative positions of the wounds clearly show
that the drunken Leon Lumasac brandished and executed
several hacking blows against Exequiel Senoja before he was
stabbed, neutralized and finished by the latter. It would be
physically and highly improbable for the victim if he was
treacherously hit at the left buttock and as he turned around
to face the petitioner, the latter stabbed him successively
and without let-up hitting him 9 times resulting in 9 fatal
wounds. This did not give a chance to the victim to retaliate
and inflict those wounds upon the aggressor. The victim used
Mr. Jose Calicas bolo which was secured by its scabbard.
Unless earlier drawn, it would be impossible for the victim to
use it in defending himself from the surprise attack and
stabbing at a lightning fashion inflicting nine (9) fatal
wounds. Time element was the essence of this encounter
which, as narrated by the Honorable Court, after the
assailant poked the victim at the left side of the buttock with
the use of the colonial knife he stabbed him successively
until he fell down dead. Under these circumstances, how
could Exequiel Senoja suffered (sic) those hacking (sic)
wounds inflicted by the victim using Calicas bolo? In all
indications, it was Leon Lumasac who attacked his adversary
first but lost in the duel considering that he was older than
Exequiel Senoja and drunk. Clearly, therefore, it was Leon
Lumasac who was the aggressor both in the first and second
phases of the incident and Exequiel Senoja was compelled to
defend himself.
A closer scrutiny of the attending circumstances which
resulted in this stabbing incident shows that Exequiel Senoja
has no compelling reasons to kill his godfather. On that same
occasion, Mr. Exequiel Senoja was with the brother of the
victim, Miguel Lumasac, which only shows that there was no
pre-existing grudge between these families. And still, what

titillates our imagination is the fact that Miguel Lumasac, who

was then with the group drinking gin at the hut of Crisanto
Reguyal did not clearly impute this crime to petitioner. On the
contrary, when he was presented to the witness stand, he
was very evasive in answering the questions profounded by
the prosecutors if he wanted the petitioner to be imprisoned.
Miguel Lumasac could have told the real truth that Senoja
murdered his brother.[8]
The CA declared that, based on the evidence on record:
As seen from appellants testimony, Leon Lumasacs actions
can be divided into two (2) phases: the first phase, when
Leon entered Crisanto Reguyals hut, up to the time he and
the appellant reconciled. The second phase was when Leon
left to go home. In phase one where Leon entered Reguyals
hut, Leon was the aggressor but his aggression was mostly
directed to his brother Miguel who was not inside the hut
anymore, although it was also partly directed at the appellant
and even at Fidel Soneja (sic). But Leons aggression against
the appellant and Fidel Senoja ceased since, as appellant
testified, when Leon tried to box Fidel Senoja and he
(appellant) told Leon Huwag po, Huwag po, Leon was
pacified.
In the second phase, when Leon left the hut to go home, his
aggression had already ceased.
It is uncontroverted that the appellant followed the victim
when the latter went out of the hut to go home. Appellants
testimony is that when he was two meters outside the hut,
Leon turned around to face him saying if youre not only
my godson in a threatening way, then approached and
hacked him (with Calicas bolo) inflicting wounds on the left
side of his head and his right thigh, thus, he (appellant)
attacked the victim with the kolonial knife he was holding.
That appellant suffered such injuries was corroborated by the
testimony of Dr. Rodolfo Eligio.[9]
The petition is denied.
Paragraph 1, Article 11, of the Revised Penal Code provides:
ART. 11. Justifying circumstances. The following do not incur
any criminal liability:

1.

Anyone who acts in defense of his person or rights,

provided that the following circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to
prevent or repel it;
Third. Lack of sufficient provocation on the part of the person
defending himself.
The affirmative defense of self-defense may be complete or
incomplete. It is complete when all the three essential
requisites are present; it is incomplete if only unlawful
aggression on the part of the victim and any of the two
essential requisites were present. In fine, unlawful aggression
on the part of the victim is a condition sine qua non to selfdefense, complete or incomplete. Whether or not the
accused acted in self-defense is a question of fact. Like alibi,
the affirmative defense of self-defense is inherently weak
because, as experience has demonstrated, it is easy to
fabricate and difficult to disprove.[10]
The right of self-defense proceeds from necessity and limited
by it. The right begins where necessity does, and ends where
it ends.[11] There is, however, a perceptible difference
between necessity and self-defense, which is that, selfdefense excuses the repulse of a wrong; necessity justifies
the invasion of a right. Hence, it is essential to self-defense
that it should be a defense against a present unlawful attack.
[12]

Life can be taken under the plea of necessity, when

necessary for the preservation of the life on the party setting
up the plea. Self-defense is an act to save life; hence, it is
right and not a crime.[13] There is a need for one, indeed, for it
is a natural right for one to defend oneself when confronted
by an unlawful aggression by another. It is a settled rule that
to constitute aggression, the person attacked must be
confronted by a real threat on his life and limb; and the peril
sought to be avoided is imminent and actual, not merely
imaginary. Absent such an actual or imminent peril to ones
life or limb, there is nothing to repel; there is no necessity to

take the life or inflict injuries on another. [14]

But then what is the standard to use to determine whether
the person defending himself is confronted by a real and
imminent peril to his life or limb? We rule that the test should
be: does the person invoking the defense believe, in due
exercise of his reason, his life or limb is in danger? After all,
the rule of law founded on justice and reason: Actus no facit
remin, nisi mens sit rea. Hence, the guilt of the accused must
depend upon the circumstances as they reasonably appear to
him.[15]
Unlawful aggression presupposes an actual, sudden,
unexpected attack or imminent danger thereof, not merely a
threatening or intimidating attitude.[16] Hence, when an
inceptual/unlawful aggression ceases to exist, the one
making a defense has no right to kill or injure the former
aggressor.[17] After the danger has passed, one is not justified
in following up his adversary to take his life. The conflict for
blood should be avoided if possible.[18] An assault on his
person, he cannot punish when the danger or peril is over.
When the danger is over, the right of self-defense ceases. His
right is defense, not retribution.[19]
When the accused offers the affirmative defense of selfdefense, he thereby admits killing the victim or inflicting
injuries on him. The burden of evidence is shifted on the
accused to prove, with clear and convincing evidence, that
he killed the victim or inflicted injuries on him to defend
himself. The accused must rely on the strength of his own
evidence and not on the weakness of that of the prosecution
because if the evidence of the prosecution were weak, the
accused can no longer be acquitted.[20]
We agree with the CA that, as gleaned, even from the
testimony of the petitioner, there were two separate but
interrelated incidents that culminated in the petitioners
stabbing and killing of the victim Leon Lumasac. The first was
the arrival of the victim, who was armed with a bolo, in the
hut of Crisanto Reguyal, looking for his brother Miguel
Lumasac, whom he was angry at. The victim hacked the wall
of the house in anger. The petitioner, who was armed with a

knife, tried to pacify the victim. The victim attempted to hack

the petitioner; nevertheless, the latter embraced and
managed to pacify the victim. Forthwith, Jose Calica took the
bolo of the victim and threw it away. For his part, Fidel Senoja
took the petitioners knife. As it was, the victim was already
pacified. He and the petitioner were already reconciled. [21]
Fidel even gave back the knife to the petitioner.
The second incident took place when the victim demanded
that Calica return his bolo as he wanted to go home already.
Because he had thrown away the victims bolo, Calica was,
thus, impelled to give his own. The victim then warned the
petitioner three times, May mangyayari sa iyo, kung hindi
ngayon, bukas, and left the hut. When the victim had
already gone about ten meters from the hut, the petitioner
followed the victim. The victim turned around and told the
petitioner, Kung hindi lang kita inaanak. The victim then
hacked the petitioner, hitting the latter on the left side of his
head and thigh. Believing that the victim would attack him
anew, the petitioner stabbed the victim frontally several
times.[22] He also stabbed the victim on the left buttock. The
petitioner could not recall how many times he stabbed the
victim and what parts of the latters body had been hit.
The first episode inside the hut had been completed with the
protagonist, the victim, and the petitioner reconciled. The
second episode commenced inside the hut and continued
outside, and ended with the petitioner stabbing the victim
several times.
The trial and the appellate courts gave no credence and
probative weight to the testimony of the petitioner. So do we.
First. The findings of fact of the trial court and its conclusions
based on the said findings are accorded by this Court high
respect, if not conclusive effect, especially when affirmed by
the CA. This is because of the unique advantage of the trial
court of having been able to observe, at close range, the
demeanor and behavior of the witnesses as they testify. This
rule, however, is inapplicable if the trial court ignored,
overlooked, or misinterpreted cogent facts and
circumstances which, if considered, will alter or reverse the

outcome of the case. We have reviewed the records and

found no justification for a reversal of the findings of the trial
court and its conclusions based thereon.
A
Second. The victim sustained six hack wounds and one
lacerated wound. This is gleaned from the Necropsy Report of
Dr. Pura Uy, to wit:
FINDINGS: The victim lies in supine position, stocky in built;
his clothing completely soaked with fresh blood.

CHEST:
A
(+) stab wound 2 inches below the L nipple 4 inches deep
running medially to the anterior median line.
(+) stab wound 2 inches to the L of the anterior median line
at the level of the L nipple 5 inches deep running
posteriorly.
(+) stab wound 1 inch above the L nipple 4 inches deep
running inferomedially.
(+) stab wound 2 inches to the left of the anterior median
line 4 inches deep running inferoposteriorly.
(+) stab wound 1 inch to the right of the anterior median
line at the level of the second right intercostal space 0.5
inch in depth.
(+) stab wound inch to the right of the anterior median
line at the level of the xyphoid process 3 inches deep
running superiorly.
(+) stab wound at the level of the L nipple L anterior axillary
line 4 inches in depth running superiorly to the left
armpit.
(+) hack wound at the left armpit 3 inches long injuring the
muscles and the blood vessels.
(+) lacerated wound on the left palm almost cutting off the
proximal phalanx of the left thumb.[23]
Five of the wounds of the victim on his chest were fatal. [24]
The victim also sustained a stab wound on the left buttock.
According to the doctor, it was unlikely for the victim to have
survived even with medical attention.[25] After the doctor
made her initial autopsy and submitted her report, she noted
that the victim sustained a stab wound of about two inches
deep at the left buttock, thus:
Q
In this medico-legal report, you indicated that the

cause of death of the victim is Hypovolemic shock 2

to multiple stab wounds, chest. Will you please
explain this?
Ito pong nakalagay o dahilan ng pagkamatay ng
biktima sa sobrang natapon na dugo gawa ng
maraming saksak na tinamo ng biktima sa kanyang
dibdib ang nagbigay ng daan sa kanyang kamatayan.
Will you please tell us, Dr. Uy, if there is one amont
(sic) these lesions that is located at the back of the
victim?
I forgot to tell you that a day after I submitted the
report, the funeral parlor which attended the victim has
called my attention because of the wound at the back
of the victim and I attended immediately to see these
lesions at the home of the victim. I reviewed for (sic)
these lesions and I saw one lesion located at the left
buttock of the victim.

Q
A

What is the nature of the injury?

Stab wound, about two inches deep.

Q
A

By the nature of the lesion, is it not fatal?

It is not that fatal.

In your expert opinion, by the nature of the wound

sustained by the victim, what could have been the
relative position of the victim in relation to his
assailant?
Based on my examination, I think the victim and the
assailant were facing each other. Masyadong
malapit.

How many fatal wounds have (sic) the victim sustained

in his chest?
A
Five fatal stab wounds on the chest.[26]
Considering the number, nature and location of the wounds
sustained by the victim, the petitioners plea of self-defense
is incredible.[27] It bears stressing that the petitioner
resolutely denied stabbing the victim at the buttock and
insisted that he stabbed the victim frontally:
Q
As a matter of fact, he sustained an injury at the back

A
Q

of his buttock (pigi) and when he faced you, you

stabbed him again several times?
That is not true, Sir.

But you are admitting that you stabbed him several

times frontally?
Yes, Sir, because I am (sic) defending myself.

Q
A

You also stabbed him in his left armpit?

I dont know, Sir.

Q
A

But you knew that you stabbed him in his buttock?

No, Sir.

After stabbing him several times and felt that he was

already dead, you already left the place?
A
Yes, Sir.[28]
The testimony of the petitioner is belied by the physical
evidence on record. The settled rule is that physical evidence
is evidence of the highest order; it speaks more eloquently
than a hundred witnesses.[29]
Third. The petitioner threw away his knife and failed to
surrender it to the policemen; neither did he inform the
policemen that he killed the victim in self-defense. The
petitioners claim that the victim was armed with a bolo is
hard to believe because he even failed to surrender the bolo.
[30]

Fourth. The petitioners version of the events that transpired

immediately before he stabbed the victim does not inspire
belief. He claims that when he saw the victim emerged from
the hut, the victim walked towards the petitioner saying,
Kung hindi lang kita inaanak, but hit and hacked the latter
on the left buttock.[31] As gleaned from his statement, the
victim was not disposed, much less determined to assault the
petitioner. And yet, the petitioner insists that without much
ado, the victim, nevertheless, hit him on the head and on the
thigh with his bolo.
Fifth. According to the petitioner, the victim warned him three
times before leaving the hut, May mangyayari sa iyo, kung

hindi ngayon, bukas. The petitioner testified that shortly

before the victim uttered these words, the latter even
touched the blade of the bolo to see if it was sharp. [32] The
petitioner was, thus, aware of the peril to his life if he
followed the victim. The petitioner, nevertheless, followed
the victim and left the hut after the victim had gone barely
ten meters. He should have waited until after the victim had
already gone far from the hut before going home to avoid
any untoward incident.
Sixth. The petitioner presented his brother-in-law Ruben
Dulay to corroborate his testimony that the victim stabbed
the petitioner and that this impelled the latter to stab the
former. But the testimony of Dulay contradicted the
testimony of the petitioner:
Q
When Exequiel Senoja stabbed Leon Lumasac several
times, he immediately fell to the ground and was
fatal[ly] wounded, immediately died because of several
stabs and lay (sic) down?
A
I did not see that scene because Exequiel Senoja
stabbed Leon Lumasac, I turn (sic) back upon seeing
Leon Lumasac hack Exequiel Senoja, I turn (sic) back
because I was afraid then. When I turn (sic) back I saw
them embracing each other, Sir.
Q
A
Q

And that is the time when Exequiel Senoja stabbed

Leon Lumasac?
I did not see the stabbing. What I only saw was that
they were embracing each other, Sir.

So you are now changing your answer, you actually

saw Exequiel Senoja stabbing Leon Lumasac several
times, after he was hack[ed] by Leon Lumasac?
A
I did not see that Exequiel Senoja stab Leon Lumasac,
Sir.[33]
Seventh. The bare fact that the petitioner sustained a fivecentimeter wound at the left temporal region and an eightcentimeter hack wound on the anterior portion of his right
thigh does not preclude the fact that he was the unlawful
aggressor; nor buttress his plea that he acted in self-defense.
The petitioner failed to inform the doctor that he sustained

the wounds to defend himself. Moreover, the doctor testified

that the wounds the petitioner sustained were slight:
Pros. Ronquillo:
Q
Does (sic) the wound at the right anterior thigh
vertical, diagonal or what?
A
I did not place it, Sir.
Q
A

So, you dont know?

It is vertical, Sir, but I did not place it on the record.
And the hack wound on the temporal region is oblique.

Q
A

Were the injuries only slight?

Yes, Sir.

So, it is (sic) possible that these injuries were selfinflicted?

Probably, Sir, but I cannot comment on that.

A
Q
A

You said that the patient was under the influence of

alcohol? Would you say that the patient was then so
drunk at that time?
When I saw him at that time, he was moderately drunk.
[34]

The doctor gave the petitioner due medications for 30

minutes and the petitioner then went home:

Q
A

In what place did this incident happen?

In the hut of Tata Santos, Sir.

Q
What is his real name?
A
Crisanto Reguyal, Sir.[35]
If, as claimed by the petitioner, the victim stabbed him
frontally, it is incredible that the victim was able to hack the
anterior part of his right thigh.
Eighth. The testimony of the petitioner that the victim
stabbed him outside the hut on the left side of his head and
the anterior portion of his right thigh is belied by his
testimony on direct examination that the victim stabbed him
while still inside the hut of Reguyal:
Q
How did it happen that you were able to kill the victim
in this case Mr. Leon Lumasac?
A
Because when I went out, he hacked me, Sir.
Q
A

Were you hit by the hack made by the victim in this

case?
Yes, Sir.

Q
A

Where?
Here, Sir.
And Witness is pointing to his left head.

Q
A
Q

How did it happen that you were able to kill the victim
in this case Mr. Leon Lumasac?
Because when I went out, he hacked me, Sir.

Were you hit by the hack made by the victim in this

case?
Yes, Sir.

Q
A

Where?
Here, Sir.
And Witness is pointing to his left head.

Q
A

Q Where else?
(His) right thigh.

Q
A

Where else?
(His) right thigh.

Q
A

In what place did this incident happen?

In the hut of Tata Santos, Sir

Q
What is his real name?
A
Crisanto Reguyal, Sir.[36]
But then, after the said incident, the petitioner and the victim
had reconciled. We agree with the following findings of the
appellate court:
The question that must be resolved is whether or not the
victim was the unlawful aggressor as the appellants
testimony pictures him to be. The Court rules in the negative.
The victim had already left the hut and was ten (10) meters

away from it. There is no showing that the victim, who was
drunk, was aware that appellant was following him, or that
the appellant called out to him so that he (the victim) had to
turn around and notice him. It is clear that at that point in
time, the victim was simply walking toward his home; he had
stopped being an aggressor. It was the appellant who,
smarting from the earlier incident in the hut where Leon told
him hindi ka tatagal, sa loob ng tatlong araw mayroong
mangyayari sa iyo, kung hindi ngayon, bukas repeated three
times, wanted a confrontation. Appellant stabbed or poked
the victim in the left buttock resulting in the non-fatal wound,
and when the latter turned around, successively stabbed and
hacked the victim in the armpit and chest until he fell. In all,
the victim suffered nine (9) wounds.
It is the well-considered finding of this Court that while Leon
Lumasac had ceased being the aggressor after he left the hut
to go home, accused Exequiel Senoja was now the unlawful
aggressor in this second phase of their confrontation. It bears
mentioning that appellant contradicted himself with respect
for (sic) the reason why he left the hut. First, it was to pacify
Leon and the second reason was that he was going home.
As for appellants injuries, it is clear that they were sustained
in the course of the victims attempt to defend himself as
shown by the lacerated wound on the victims left palm, a
defensive wound. [37]
IN LIGHT OF ALL THE FOREGOING, the petition is
DENIED. The assailed Decision of the Court of Appeals is
AFFIRMED.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, and Tinga, JJ., concur.
Chico-Nazario, J., on leave.

[3]

Rollo, pp. 52-53.

[4]

Records, p. 1.

[5]

Rollo, pp. 11-12.

[6]

Id. at 22-23.

[7]

Id. at 13.

[8]

Id at 16-17.

[9]

Id. at 32-33.

[10]

People v. Noay, 296 SCRA 292 (1998).

[11]

Bishop, A Treatise on Criminal Law, 9th ed., Vol. I, pp. 599600.

[12]

Id. at 180.

[13]

Wharton, Criminal Law, 12th ed., Vol. I, pp. 176-177.

[14]

People v. Langres, 316 SCRA 769 (1999).

[15]

Id. at 845-846.

[16]

People v. Arizala, 317 SCRA 244 (1999).

[17]

People v. Bitoon, Sr., 309 SCRA 209 (1999).

[18]

Bishop, supra, p. 617.

[19]

Wharton Criminal Law, 12th ed., Vol. I, p. 186.

[20]
[1]

Penned by Associate Justice Portia Alio-Hormachuelos,

with Associate Justices Perlita J. Tria-Tirona and Rosalinda
Asuncion Vicente, concurring.
[2]

Penned by Acting Presiding Judge Armando A. Yanga.

People v. Arizala, 317 SCRA 244 (1999); People v. Real,

308 SCRA 244 (1999).
[21]

TSN, 7 September 2001, pp. 6-7.

[22]

Id. at 8-9.

[23]

Exhibit A, Records, p. 13.

[24]

TSN, 20 November 1997, p. 8.

[25]

Id. at 7.

[26]

Id. at 8.

[27]

People v. More, 321 SCRA 538 (1999); People v. Real, 308

SCRA 244 (1999).
[28]

TSN, 7 September 2001, p. 9.

[29]

People v. Sunpongco, 163 SCRA 222 (1988).

[30]

People v. Piamonte, 303 SCRA 577 (1999).

[31]

TSN, 7 September 2001, p. 8.

[32]

Id. at 7.

[33]

TSN, 29 January 2002, p. 13.

[34]

TSN, 12 February 2002, pp. 3-4.

[35]

TSN, 14 March 2001, pp. 3-4.

[36]

Ibid.

[37]

Rollo, p. 33.
Copyright 2016 - Batas.org

Supreme Court of the Philippines

G.R. No. 107874
SECOND DIVISION
G.R. No. 107874, August 04, 1994
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE,
VS. GEORGE DECENA Y ROCABERTE, ACCUSEDAPPELLANT.
DECISION
REGALADO, J.:
It is said that a fool shows his annoyance at once, but a
prudent man overlooks an insult.[1] Had herein accusedappellant George Decena reflected upon and hearkened to
this biblical precept, he would not have found himself
charged with murder for allegedly stabbing to death one
Jaime Ballesteros in San Fabian, Pangasinan on -- of all dates
-- December 25, 1990.[2]
Appellant thereafter stood trial on a plea of not guilty. On
September 20, 1991, judgment was rendered by the trial
court convicting him of murder, imposing on him the penalty
of reclusion perpetua, and ordering him to indemnify the
heirs of the deceased in the amount of P50,000.00, plus the
additional amounts of P4,500.00 and P2,300.00 representing
the funeral expenses for the victim, with costs. [3]
A motion for reconsideration filed by appellant was denied on
August 26, 1992 for lack of merit,[4] hence this appellate
review wherein appellant contends, in his assigned errors,
that the lower court blundered in disregarding his claim of
self-defense, and in not appreciating the mitigating

circumstance of voluntary surrender in his favor, granting

arguendo that he is guilty.[5]
The case for the prosecution, anchored mainly on the
testimony of Luzviminda Ballesteros, a 14-year old daughter
of the victim, is to the effect that on Christmas Day of 1990,
at around 4:00 P.M., said Luzviminda was playing with her
siblings at home. She recalled being asked by her mother,
Teresita Ballesteros, to fetch her father, Jaime Ballesteros,
who was then watching a game in the basketball court. On
her way to the hardcourt, Luzviminda met her father walking
home in an intoxicated state. Suddenly, she saw appellant
rushing towards her father with a long bladed weapon,
prompting Luzviminda to warn her father to run for safety by
shouting in the vernacular "Batik kila, Tatay!" Instead, Jaime
simply raised his hand, thus allowing appellant to stab him
on the right chest just below the nipple. Appellant then fled
from the crime scene, while the victim also managed to run
but stumbled and fell to the ground.[6]
Finding that her father was too heavy for her to carry,
Luzviminda called for her mother at their house, which was
only fifteen meters away from the scene of the crime, saying:
"Mother, come! My father has been stabbed by George
Decena." Her mother immediately called for a tricycle and
rushed Jaime to the Provincial Hospital where, however, the
victim was declared dead on arrival.[7]
A different account of the incident was presented by the
defense. It was claimed that at about 4:00 P.M. of that day,
appellant was watching a basketball game. The victim, Jaime
Ballesteros, went around the basketball court, walking in a
wobbly manner due to drunkenness. Jaime stopped near the
place where appellant was sitting and, for no apparent
reason, held the latter by the neck with one arm and, at the
same time, poking a fork against it with the other arm.
Barangay Tanod Romeo Decena who was also watching the
basketball game, intervened. He took the fork from Jaime and
advised appellant to go home. The latter left and was
followed later by Jaime.
Fernando Biala, an uncle of appellant, additionally testified
that while he was walking on the barangay road of LongosPatalan, he chanced upon Jaime attacking appellant with a
balisong. Fortunately, he claims, appellant was able to parry
the stabbing blow and a struggle ensued between them.

Appellant overpowered Jaime and succeeded in twisting the

wrist of the victim and thrusting the knife into the latter's
body.[8]
In criminal cases, the burden of proof is, of course, on the
prosecution which must rely on the strength of its evidence
and not on the weakness of the defense. Herein appellant,
however, invokes self-defense, thereby shifting the burden of
evidence to him and the onus of which he must satisfactorily
discharge, otherwise conviction would follow from his
admission that he killed the victim.[9] Furthermore, appellant
must this time rely on the strength of his own evidence and
not on the weakness of that of the prosecution, for even if
that was weak, it cannot be disbelieved after appellant
himself admitted the killing.[10]
The basic requirement for self-defense, as a justifying
circumstance, is that there was an unlawful aggression
against the person defending himself. It must be positively
shown that there was a previous unlawful and unprovoked
attack that placed the life of the accused in danger and
forced him to inflict more or less severe wounds upon his
assailant, employing therefor reasonable means to resist said
attack.[11] The primal issue in this case, therefore, is whether
or not appellant acted in complete self-defense in killing
Jaime Ballesteros, as claimed, thus absolving him from
criminal liability.
Long has it been accepted that for the right of defense to
exist, it is necessary that one be assaulted or that he be
attacked, or at least that he be threatened with an attack in
an immediate manner, as, for example, brandishing a knife
with which to stab him or pointing a gun to be discharged
against him.[12] So indispensable is unlawful aggression in
self-defense that, without it, there is no occasion to speak of
the other two requisites for such a defense because both
circumstances presuppose an unlawful aggression.
The theory of the defense is that the unlawful aggression
started in the basketball court, when the victim tried to poke
a fork on the neck of appellant, and continued thereafter.
Even on the elementary rule that when the aggressor leaves,
the unlawful aggression ceases, it follows that when
appellant and Jaime heeded the advice of the barangay
tanod for them to go home, the unlawful aggression had
ended. Consequently, since unlawful aggression no longer

existed, appellant had no right whatsoever to kill or even

wound the former aggressor. The supposed continuation of
the unlawful aggression which could have justified self?
defense would have been the circumstance that Jaime
persisted in his design to attack appellant while the latter
was already in front of his house. This fact, however, the
defense ruefully failed to establish.
It is an old but a respected and consistent rule that courts
must determine by a balance of probabilities who of the
participants in a fight had, in the natural order of things, the
reason to commence the aggression.[13] When appellant
claimed that Jaime suddenly and without any provocation
tried to strangle him and poked a fork against his neck, in
front of so many people in the basketball court, [14] then he
must necessarily have been deeply offended, if not insulted,
and this fact undoubtedly fired him with a desire to get even
with the deceased.
The case at bar calls to mind the scenario and logical view
that when a person had inflicted slight physical injuries on
another, without any intention to inflict other injuries, and the
latter attacked the former, the one making the attack was an
unlawful aggressor. The attack made was evidently a
retaliation. And, we find this an opportune occasion to
emphasize that retaliation is different from an act of selfdefense. In retaliation, the aggression that was begun by the
injured party already ceased to exist when the accused
attacked him. In self-defense, the aggression was still
existing when the aggressor was injured or disabled by the
person making a defense.[15] We find these observations
apropos to the situation presented by the instant case.
It will be recalled that, as claimed by appellant, the unlawful
aggression complained of also took place in front of his
house, where Jaime allegedly tried to attack him with a
balisong, and not only in the basketball court. To support his
theory of continuing aggression, appellant alleged that
whenever the victim was drunk, he would look for trouble.
Again, the defense utterly failed to prove this hypothesis. On
the contrary, the wife of the victim testified that the latter
has no such record in their barangay[16] and, significantly, her
said testimony was never refuted nor objected to by
appellant.

Witnesses for and against the appellant testified that

throughout the incident Jaime was inebriated and that he was
staggering or wobbling as he walked. [17] If he had such
difficulty even in performing the normal bodily function of
locomotion, it could not be expected that he would muster
enough courage to persist in attacking and attempting to kill
appellant, as posited by the defense, considering that the
latter was decidedly stronger than him.
Essentially involved, in view of the conflicting submissions of
the parties, is the matter of the credibility of their respective
witnesses. Accordingly, we are constrained to once again
advert to the jurisprudential rule that the evaluation of the
credibility of witnesses is within the province of the trial court
which is better circumstanced because of its direct role in the
reception of the testimonial evidence.[18] After examining and
evaluating the conflicting versions of the prosecution and the
defense, we agree with the court a quo that the prosecution's
account is deserving of more credence. On the other hand,
we note grave inconsistencies in the declarations of the
defense witnesses.
First. Appellant, in his direct examination, testified that a fork
was poked at his neck but, on cross-examination, he
vacillated and testified that it was a knife instead. [19] Surely,
appellant must know the difference between a fork and a
knife.
Second. Appellant insisted that after the stabbing incident in
the late afternoon of December 25, 1990 and until his
surrender early next morning, he never went out of his
house. This is contradicted by the unchallenged Entry No.
173 of the local police blotter, especially its follow-up entry
which the court below quoted in its decision:
"Relative entry no. 173, elements of this station proceeded to
Barangay Longos this town to locate the suspect and
returned station with the information that said suspect fled
after the incident. One deformed fork submitted by the father
of the suspect Francisco Decena to Sgt. R.B. Diagan allegedly
owned by the victim. Under follow-up Sgd. Ricardo Abrio,
Pfc/PNP."[20]
Third. Appellant's smug excuse for not immediately divulging
to Sgt. Romeo Diagan that he was not at fault for the death
of Jaime was that he was terribly afraid to do so. Strangely,
however, this was not his demeanor and attitude when he

boldly professed and contended that it was Jaime who first

poked a fork against his neck while he was watching a
basketball game. Parenthetically, the other half of the story
was deliberately not narrated.[21] Be that as it may, the Court
has heretofore noted that a righteous individual will not
cower but would readily admit the killing at the earliest
opportunity if he were legally and morally justified in doing
so. A belated plea or denial suggests that it is false and only
an afterthought made as a last ditch effort to avoid the
consequences of the crime.[22]
Fourth. The supposed eyewitness of the defense who is
appellant's uncle, Fernando Biala, impresses us as either an
imaginative or a coached witness. He avowed that he saw
the stabbing incident, but shock and surprise allegedly
prevented him from going near Jaime or appellant, when he
saw Jaime about to stab appellant. However, on crossexamination, he said that he merely chanced on them at the
time when Jaime was already actually stabbing appellant, for
the reason that he did not see where appellant or Jaime came
from before the incident. When asked how long the fight
transpired, he vaguely answered that he could not tell
because when he went up the road, the two were already
fighting. However, he again vacillated by saying that when
Jaime was about to deliver the stabbing blow, appellant
caught the hand of Jaime "squeezed and pushed it forward
and Jaime Ballesteros hit himself."[23] This is a mercurial
account since, to repeat, this witness categorically admitted
that even as he was still going up the road, the supposed
combatants were already fighting and that fight actually
lasted only a few seconds.
Appellant declared that he is related to the victim's wife, that
they are neighbors, and that there was no grudge between
him and the victim, nor with any member of the family of the
latter.[24] This was apparently to bolster his theory that he had
no motive to assault the victim. His assertions, however,
work both ways for it also established the fact that
Luzviminda would likewise not just indiscriminately and
improvidently point her finger at anybody but to the culprit
himself, in order to obtain justice for the death of her father.
That the principal witness is the victim's daughter even lends
more credence to her testimony as her natural interest in
securing the conviction of the guilty would deter her from

implicating persons other than the culprits, for otherwise the

latter would thereby gain immunity.[25] This observation,
however, could not be said for the defense witnesses who are
all relatives of appellant. As such, they may be expected to
cover up for the crime. While relationship between the
accused and his witnesses is not necessarily detrimental to
the former's line of defense, this relationship, taken together
with the want of logic (of) in the declarations of said
witnesses, yields the conclusion that their testimonies lack
credibility.[26]
In contrast, and further reinforcing the case for the People, is
the fact that when Luzviminda shouted, "Mother, come! My
father has been stabbed by George Decena," that outcry and
the identification of the culprit were unrehearsed and
spontaneously made at the spur of the moment. Having been
given shortly after a startling occurrence took place before
the eyes of Luzviminda, who had thereby no opportunity to
concoct or contrive a story, that statement has all the
earmarks of the truth of what she said. Under the
environmental circumstances hereinbefore related, it easily
passes the tests not only of admissibility in evidence but also
of weight in its veracity.
We, however, reject the trial court's holding that the killing of
the victim was attended by treachery. Any circumstance
which would qualify a killing to murder must be proven as
indubitably as the crime itself.[27] Here, the qualifying
circumstance of treachery cannot be appreciated, for none of
the prosecution's arguments can uphold its allegation that, in
the language of the law, appellant committed the crime by
employing means, methods or forms in the execution thereof
which tended directly and especially to insure its execution,
without risk to himself arising from the defense which the
offended party might make. It is true that the attack was
sudden, but that fact per se does not bespeak the
circumstance of alevosia.[28] It is further required that the
means, methods or forms were deliberated upon or
consciously adopted by the offender.[29] The crime committed,
therefore, was simple homicide.
The reasons advanced by the lower court for appreciating the
aggravating circumstance of disregard of age are not
persuasive. There was no showing that appellant deliberately
intended to insult the age of Jaime. We hold that for this

circumstance to constitute an aggravation of criminal

liability, it is necessary to prove the specific fact or
circumstance, other than that the victim is an old man,
showing insult or disregard of age in order that it may be
considered as an aggravating circumstance.[30] In the case at
bar, that consideration does not obtain, aside from the fact
that while the victim was forty-three years of age, he was not
necessarily old, nor was there a radical disparity between his
age and that of appellant who was twenty-five years old.
The rule is that the mitigating circumstance of voluntary
surrender may properly be appreciated if the following
requisites concur: (a) the offender had not actually been
arrested; (b) the offender surrendered himself to a person in
authority or to an agent of a person in authority; and (c) the
surrender was voluntary. We believe that the mitigating
circumstance of voluntary surrender may be awarded to
appellant. The records disclose that appellant was, evidently
with his concurrence, accompanied and surrendered by his
father to a person in authority, Sgt. Romeo Diagan, early in
the morning after the incident and before he could actually
be arrested. That mitigating circumstance can, therefore, be
properly considered in his favor to impose the penalty in its
minimum period.
WHEREFORE, the appealed judgment of the court a quo is
hereby MODIFIED by finding accused-appellant George
Decena y Rocaberte guilty of the crime of homicide, and
imposing upon him an indeterminate sentence of eight (8)
years of prision mayor, as minimum, to fourteen (14) years
and eight (8) months of reclusion temporal, as maximum. In
all other respects, the said judgment is hereby AFFIRMED.
SO ORDERED.
Narvasa, C.J., (Chairman), Padilla, Puno, and Mendoza, JJ.,
concur.
[1]

Proverbs, 12:16.
Criminal Case No. D-10303, Regional Trial Court, Branch
44, Dagupan City; Judge Crispin C. Laron, presiding; Original
Record, 1.
[3]
Original Record, 90.
[4]
Ibid., 103-104.
[2]

[5]

Brief for the Appellant, 3; Rollo, 30.

TSN, April 10, 1991, 4-9; Exhibit E, Original Record, 9.
[7]
Ibid., April 3, 1991, 5-7; April 10, 1991, 12-13.
[8]
TSN, May 2, 1991, 4-6; June 10, 1991, 4-5.
[9]
People vs. Uribe, G.R. Nos. 76493-94, February 26, 1990,
182 SCRA 624; People vs. Amania, et al., G.R. No. 97612,
March 23, 1993, 220 SCRA 347.
[10]
People vs. Ansoyon, 75 Phil. 772 (1946); People vs.
Caparas, et al., L-47411, February 20, 1981, 102 SCRA 781;
People vs. Gadiano, L-31818, July 30, 1982, 115 SCRA 559;
People vs. Amania, et al., ante.
[11]
People vs. Madali, et al., G.R. Nos. 67803-04, July 30,
1990, 188 SCRA 69.
[12]
1 Viada, Codigo Penal Reformado de 1870, Quinta Edicion,
173.
[13]
U.S. vs. Laurel, 22 Phil. 252 (1912); People vs. Berio, 59
Phil. 533 (1934); People vs. Dofilez, L-35103, July 25, 1984,
130 SCRA 603; Borguilla vs. Court of Appeals, et al., L-47286
January 7, 1987, 147 SCRA 9.
[14]
TSN, June 10, 1991, 8.
[15]
See Reyes, L.B. The Revised Penal Code, 13th ed. (1993);
Book One, 153-54.
[16]
TSN, June 10, 1991, 7-8, 11; June 24, 1991, 7.
[17]
TSN, June 24, 1991, 8; June 10, 1991, 7; Exhibit E, Original
Record, 13.
[18]
People vs. Gargoles, L-40885, May 18, 1978, 83 SCRA 282;
People vs. Ancheta, et al., L-29581-82, October 30, 1974, 60
SCRA 333; People vs. Magallanes, G.R. No. 89036, January
29, 1993, 218 SCRA 109.
[19]
TSN, June 10, 1991, 4, 14.
[20]
Original Record, 86-87.
[21]
TSN, June 10, 1991, 14.
[22]
People vs. Manlulu, G.R. No. 102140, April 22, 1994.
[23]
TSN, May 2, 1991, 5-11.
[24]
TSN, June 10, 1991, 7, 12.
[25]
People vs. Villalobos, et al., G.R. No. 71526, May 27, 1992,
209 SCRA 304.
[26]
People vs. Alfonso, G.R. No. 78954, June 18, 1990, 186
SCRA 576.
[27]
People vs. Tiongson, L-35123-24, July 25, 1984, 130 SCRA
614; People vs. Manalo, G.R. No. 55177, February 27, 1987,
[6]

148 SCRA 98; People vs. Atienza, G.R. No. 68481, February
27, 1987, 148 SCRA 147.
[28]
People vs. Young, 83 Phil. 702 (1949); People vs. Talay, et
al., L-24852, November 28, 1980, 101 SCRA 332; People vs.
Ruiz, L-33609, December 14, 1981, 110 SCRA 155.
[29]
People vs. Tumaob, 83 Phil. 738, 742 (1949); People vs.
Tugbo, Jr., G.R. No. 75894, April 22, 1991, 196 SCRA 133.
[30]
People vs. Berbal, et al., G.R. No. 71527, August 10, 1989,
176 SCRA 202; Cf. People vs. Mangsant, 65 Phil. 548 (1938);
People vs. Ursal, et al., L-33768, April 20, 1983, 121 SCRA
409.
Copyright 2016 - Batas.org

Supreme Court of the Philippines

400 Phil. 872
EN BANC
G.R. No. 128359, December 06, 2000
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE,
VS. ROBERTO E. DELA CRUZ, ACCUSED-APPELLANT.
DECISION
VITUG, J.:
For automatic review is the decision, dated 27 November
1996, of the Regional Trial Court, Branch 27, of Cabanatuan
City, which has sentenced to death Roberto E. de la Cruz for
"Qualified Illegal Possession of Firearm and Ammunition with
Homicide."
The information charging the accused with the offense, to
which he pled "not guilty" when arraigned, read:
"That on or about the 27th day of May, 1996, in the City of
Cabanatuan, Republic of the Philippines and within the

jurisdiction of this Honorable Court, the abovenamed

accused, with intent to kill, did then and there, willfully,
unlawfully and feloniously attack, assault and use personal
violence upon the person of one DANIEL MACAPAGAL, by
shooting the latter with the use of an unlicensed Caliber .38
snub nose firearm, with Serial No. 120958, thereby inflicting
upon him gunshot wounds on different parts of his body,
which caused also his death."[1]
The facts relied upon by the trial court in its judgment were
narrated by the Office of the Solicitor General in the People's
brief.
"The victm Daniel Macapagal, a married man, had been a
live-in partner of prosecution witness Ma. Luz Perla San
Antonio for about two to three years before San Antonio took
appellant Roberto de la Cruz, widower, as lover and live-in
partner. At the time of the incident on May 27, 1996,
appellant and San Antonio were living in a house being
rented by San Antonio at 094 Valino District, Magsaysay
Norte, Cabanatuan City (pp. 2-3, TSN, July 6, 1996).
"At around 6:00 o'clock in the evening on May 27, 1996, San
Antonio and appellant were resting in their bedroom when
they heard a car stop in front of their house and later knocks
on their door. San Antonio opened the front door and she
was confronted by Macapagal who made his way inside the
house holding a gun in his hand, despite San Antonio's
refusal to let him in. He seemed to be looking for something
or somebody as Macapagal walked passed San Antonio and
inspected the two opened bedrooms of the house. He then
went to the close bedroom where the appellant was and
banged at the door with his gun while yelling `Come out.
Come out' (p. 4, Ibid.). Appellant then opened the door but
he was greeted by Macapagal's gun which was pointed at
him. Appellant immediately closed the door while Macapagal
continued banging at it. When appellant again opened the
door moments later, he was himself armed with a .38 caliber
revolver. The two at that instant immediately grappled for
each other's firearm. A few moments later shots were heard.
Macapagal fell dead on the floor.
"Appellant told San Antonio to call the police on the phone.

After a few minutes police officers arrived at the scene. They

saw the dead body of Macapagal slumped on the floor
holding a gun. San Antonio met them on the door and
appellant was by then sitting. He stood up to pick his .38
caliber revolver which he surrendered to SPO3 Felix Castro,
Jr. Appellant told the police that he shot Macapagal in selfdefense and went with them to the police station.
Dr. Jun Concepcion, Senior Medical Officer of the Cabanatuan
City General Hospital, performed an autopsy on the cadaver
of Macapagal and submitted a report thereon (Exhibit H).
Macapagal sustained four (4) gunshot wounds. Three of the
wounds were non-penetrating or those that did not penetrate
a vital organ of the human body. They were found in the
upper jaw of the left side of the face, below the left shoulder
and the right side of the waist. Another gunshot wound on
the left side of the chest penetrated the heart and killed
Macapagal instantly.
It was later found by the police that the firearm used by
Macapagal was a 9mm caliber pistol. It had one magazine
loaded with twelve (12) live ammunition but an examination
of the gun showed that its chamber was not loaded.
"Macapagal had a license to carry said firearm. On the other
hand, appellant, who denied ownership of the .38 caliber
revolver he used, had no license therefore." [2]
Unmoved by the claim of self-defense invoked by the
accused, the trial court pronounced a judgment of guilt and
handed a death sentence.
"WHEREFORE, premises considered, the Court finds and so
declares the accused ROBERTO DELA CRUZ guilty beyond
reasonable doubt of the crime of Qualified Illegal Possession
of Firearm and Ammunition with Homicide, which is penalized
under Presidential Decree 1866, Sec. 1, and he is hereby
sentenced to suffer death; he is, likewise ordered to
indemnify the heirs of the deceased victim in the sum of
P50,000.00; to pay actual damages in the sum of P65,000.00
representing burial and interment expenses; and the sum of
P2,865,600.00 representing loss of income." [3]

In his plea to this Court, accused-appellant submits that the

decision of the court a quo is bereft of factual and legal
justification.
When self-defense is invoked, the burden of evidence shifts
to the accused to show that the killing has been legally
justified.[4] Having owned the killing of the victim, the
accused should be able to prove to the satisfaction of the
court the elements of self-defense in order that the might be
able to rightly avail himself of the extenuating circumstance.
[5]
He must discharge this burden by clear and convincing
evidence. When successful, an otherwise felonious deed
would be excused mainly predicated on the lack of criminal
intent of the accused. Self-defense requires that there be (1)
an unlawful aggression by the person injured or killed by the
offender, (2) reasonable necessity of the means employed to
prevent or repel that unlawful aggression, and (3) lack of
sufficient provocation on the part of the person defending
himself. [6] All these conditions must concur.[7]
Here, the Court scarcely finds reversible error on the part of
the trial court in rejecting the claim of self-defense.
Unlawful aggression, a primordial element of self-defense,
would presuppose an actual, sudden and unexpected attack
or imminent danger on the life and limb of a person - not a
mere threatening or intimidating attitude[8]- but most
importantly, at the time the defensive action was taken
against the aggressor. True, the victim barged into the
house of accused-appellant and his live-in partner and,
banging at the master bedroom door with his firearm, he
yelled, "come out." Accused-appellant, however, upon
opening the door and seeing the victim pointing a gun at
him, was able to prevent at this stage harm to himself by
promptly closing the door. He could have stopped there.
Instead, accused-appellant, taking his .38 caliber revolver,
again opened the bedroom door and, brandishing his own
firearm, forthwith confronted the victim. At this encounter,
accused-appellant would be quite hardput to still claim selfdefense.[9]

The second element of self-defense would demand that the

means employed to quell the unlawful aggression were
reasonable and necessary. The number of the wounds
sustained by the deceased in this case would negate the
existence of this indispensable component of self-defense. [10]
The autopsy report would show that the victim sustained four
gunshot wounds "1. Gunshot wound on the (L) shoulder as point of entry with
trajectory toward the (L) supra-scapular area as point to exit
(through-through);
"2. Gunshot wound on the abdomen side laterally as point
of entry (+) for burned gun powder superficially with
trajectory towards on the same side as point of exit, throughthrough;
"3. Gunshot wound on the anterior chest (L) mid-clavicular
line, level 5th ICS as point of entry with trajectory towards the
(L) flank as point of exit (through-through) Internally:
penetrating the heart (through-through) anterior then
posterior then (L) hemidia -prhagm and stomach; and
"4. Lacerated wound linear inch in length (L) cheek
area"[11] which would, in fact, indicate a determined effort to kill. [12]
It would be essential, finally, for self-defense to be aptly
invoked that there be lack of sufficient provocation on the
part of the person defending himself. When accusedappellant, opening the bedroom door the second time
confronted, instead of merely taking precautionary measures
against, the victim with his own gun he had taken from the
cabinet, accused-appellant could no longer correctly argue
that there utterly was no provocation on his part.
The elements of illegal possession of firearm are (1) the
existence of the subject firearm, (2) the ownership or
possession of the firearm, and (3) the absence of the
corresponding license therefor.[13]
Accused-appellant claims that he did not have animus

possidendi in the use and possession of the .38 caliber

revolver since he has used it for just a "fleeting moment" to
defend himself. This assertion is not supported by the
evidence. Apparently, the subject revolver has all the while
been kept in the house of accused-appellant and his live-in
partner. Accused-appellant himself has thusly testified:
"Q: When for the first time did you see that firearm inside
the drawer of Candy?
"A: Since the last week of April, sir.
"Q: Did you ask Candy why she was in possession of that
gun?
"A: Once I opened her drawer and I asked her who owns
that gun, sir.
"Q: And what was her reply as to who owns that gun?
"A: According to her that firearm was used as payment by a
group of persons who were her customers at the Videoke, sir.
"Q: And what else did Candy tell you about that firearm, if
you know?
"A: She also told me that we can use that gun for
protection, sir."[14]
The trial court has erred, however, in imposing the death
penalty on accused-appellant. Presidential Decree No. 1866
is already amended by Republic Act No. 8294. Section 1, third
paragraph, of the amendatory law provides that "if homicide
or murder is committed with the use of an unlicensed
firearm, such use of an unlicensed firearm shall be
considered as an aggravating circumstance." The provision is
clear, and there would be no need to still belabor the matter.
[15]

The mitigating circumstance of voluntary surrender should be

considered in favor of accused-appellant. Immediately
following the shooting incident, he instructed his live-in
partner to call the police and report the incident. He waited

for the arrival of the authorities and readily acknowledge

before them his having been responsible for the shooting of
the victim.[16]
The aggravating circumstance of the use of unlicensed
firearm being effectively offset by the mitigating
circumstance of voluntary surrender,[17] the penalty
prescribed by law for the offense should be imposed in its
medium period.[18] Article 249 of the Revised Penal Code
prescribes the penalty of reclusion temporal in the crime of
homicide, the range of which is twelve (12) years and one (1)
day to twenty (20) years. Applying the Indeterminate
Sentence Law, the maximum penalty shall be taken from the
medium period of reclusion temporal, i.e., from fourteen (14)
years, eight (8) months, and one (1) day to seventeen (17)
years and four (4) months, while the minimum shall be taken
from the penalty next lower in degree, which is prision
mayor, anywhere in its range of from six (6) years and one
(1) day to twelve (12) years.
The amount of P2,865,600.00 awarded by the trial court as
damages for loss of earning capacity should be modified.
The testimony of the victim's surviving spouse, Marina Villa
Juan Macapagal, on the earning capacity of her husband
Daniel Macapagal sufficiently established the basis for
making possible such an award. [19] The deceased was 44
years old at the time of his death in 1996, with a gross
monthly income of P9,950.00.[20] In accordance with the
American Expectancy Table of Mortality adopted in several
cases[21] decided by this Court, the loss of his earning
capacity should be calculated thusly:
less living
Net
Gross
expenses
earning
life
annual
(50% of
=
x
capacity expectancy
Income
gross
(x)
annual
income)
or
x= 2(80-44)

x [119,400. - 59,700.00

00

3
=
=

24

59,700.0
0

P1,432,800.
00
=======
====

WHEREFORE, the decision appealed from is MODIFIED.

Accused-appellant ROBERTO DELA CRUZ y ESGUERRA is
hereby held guilty of HOMICIDE with the use of an unlicensed
firearm, an aggravating circumstance that is offset by the
mitigating circumstance of voluntary surrender, and he is
accordingly sentenced to an indeterminate penalty of nine
(9) years and one (1) day of prision mayor as minimum to
sixteen (16) years and one (1) day of reclusion temporal as
maximum. The award of P2,865,600.00 for loss of earning is
reduced to P1,432,800.00. In other respects, the judgment of
the trial court is AFFIRMED.
In the service of his sentence, accused-appellant shall be
credited with the full time of his preventive detention if they
have agreed voluntarily and in writing to abide the same
disciplinary rules imposed upon convicted prisoners pursuant
to Article 29 of the Revised Penal Code.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Kapunan, Mendoza,
Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes,
Ynares-Santiago, and De Leon, Jr., JJ., concur.

[4]

People vs. Galapin, 293 SCRA 474

[5]

People vs. Baniel, 275 SCRA 472.

[6]

See People vs. Demonteverde, 290 SCRA 175.

[7]

Art. 11, par. 1, Revised Penal Code.

[8]

People vs. De Gracia, 264 SCRA 200

[9]

Unlawful aggression is, of course, primordial; it must be

real, i.e., an actual, sudden, and unexpected attack or an
imminent danger thereof, and not just a threatening or
intimidating attitude. (People vs. Maalat, 275 SCRA 206.)
[10]

People vs. Babor, 262 SCRA 359.

[11]

Rollo, p. 34.

[12]

People vs. Maceda, 197 SCRA 499.

[13]

People vs. Bergante, 286 SCRA 629.

[14]

TSN, 17 October 1996, p. 20.

[15]

People vs. Molina, 292 SCRA 742.

[16]

The elements of voluntary surrender are that (1) the

offender has not been actually arrested; (2) he surrender
himself to a person in authority or an agent of a person in
authority; and (3) his surrender was voluntary (People vs.
Medina, 286 SCRA 44).
[17]

Presidential Decree No. 1866 not having provided

otherwise.

[1]

Rollo, p. 11.

[18]

[2]

Rollo, pp. 125-127

[19]

[3]

Rollo, p. 38.

Article 64, Revised Penal Code.

People vs. Verde, 302 SCRA 690; Pantranco North Express,

Inc. vs. Baesa, 179 SCRA 384.
[20]

TSN of Marina Macapagal, 15 August 1996, p. 10.

[21]

People vs. Verde, 302 SCRA 690; Sanitary Steam Laundry,

Inc. vs. Court of Appeals, 300 SCRA 20; Metro Manila Transit
Corp. vs. Court of Appeals, 298 SCRA 495; Negros Navigation
Co. Inc. vs. Court of Appeals, 281 SCRA 534; Villa-Rey Transit,
Inc. vs. Court of Appeals, 31 SCRA 511.
Copyright 2016 - Batas.org

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
C.A. No. 384
February 21, 1946
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NICOLAS JAURIGUE and AVELINA JAURIGUE, defendants.
AVELINA JAURIGUE, appellant.
Jose Ma. Recto for appellant.
Assistant Solicitor General Enriquez and Solicitor Palma for
appellee..
DE JOYA, J.:
Nicolas Jaurigue and Avelina Jaurigue were prosecuted in the
Court of First Instance of Tayabas, for the crime of murder, of
which Nicolas Jaurigue was acquitted, but defendant Avelina
Jaurigue was found guilty of homicide and sentenced to an
indeterminate penalty ranging from seven years, four months
and one day of prision mayorto thirteen years, nine months
and eleven days of reclusion temporal, with the accessory
penalties provided by law, to indemnify the heirs of the
deceased, Amando Capina, in the sum of P2,000, and to pay
one-half of the costs. She was also credited with one-half of
the period of preventive imprisonment suffered by her.
From said judgment of conviction, defendant Avelina Jaurigue
appealed to the Court of Appeals for Southern Luzon, and in
her brief filed therein on June 10, 1944, claimed

(1) That the lower court erred in not holding that said
appellant had acted in the legitimate defense of her honor
and that she should be completely absolved of all criminal
responsibility;
(2) That the lower court erred in not finding in her favor the
additional mitigating circumstances that (a) she did not have
the intention to commit so grave a wrong as that actually
committed, and that (b) she voluntarily surrendered to the
agents of the authorities; and
(3) That the trial court erred in holding that the commission
of the alleged offense was attended by the aggravating
circumstance of having been committed in a sacred place.
The evidence adduced by the parties, at the trial in the court
below, has sufficiently established the following facts:
That both the defendant and appellant Avelina Jaurigue and
the deceased Amado Capina lived in the barrio of Sta. Isabel,
City of San Pablo, Province of Laguna; that for sometime prior
to the stabbing of the deceased by defendant and appellant,
in the evening of September 20, 1942, the former had been
courting the latter in vain, and that on one occasion, about
one month before that fatal night, Amado Capina snatched a
handkerchief belonging to her, bearing her nickname
"Aveling," while it was being washed by her cousin, Josefa
Tapay.
On September 13, 1942, while Avelina was feeding a dog
under her house, Amado approached her and spoke to her of
his love, which she flatly refused, and he thereupon suddenly
embraced and kissed her and touched her breasts, on
account of which Avelina, resolute and quick-tempered girl,
slapped Amado, gave him fist blows and kicked him. She kept
the matter to herself, until the following morning when she
informed her mother about it. Since then, she armed herself
with a long fan knife, whenever she went out, evidently for
self-protection.
On September 15, 1942, about midnight, Amado climbed up
the house of defendant and appellant, and surreptitiously
entered the room where she was sleeping. He felt her
forehead, evidently with the intention of abusing her. She
immediately screamed for help, which awakened her parents
and brought them to her side. Amado came out from where
he had hidden under a bed in Avelina's room and kissed the
hand of Nicolas Jaurigue, her father, asking for forgiveness;

and when Avelina's mother made an attempt to beat Amado,

her husband prevented her from doing so, stating that
Amado probably did not realize what he was doing. Nicolas
Jaurigue sent for the barrio lieutenant, Casimiro Lozada, and
for Amado's parents, the following morning. Amado's parents
came to the house of Nicolas Jaurigue and apologized for the
misconduct of their son; and as Nicolas Jaurigue was then
angry, he told them to end the conversation, as he might not
be able to control himself.
In the morning of September 20, 1942, Avelina received
information that Amado had been falsely boasting in the
neighborhood of having taken liberties with her person and
that she had even asked him to elope with her and that if he
should not marry her, she would take poison; and that
Avelina again received information of Amado's bragging at
about 5 o'clock in the afternoon of that same day.
At about 8 o'clock in the evening of the same day,
September 20, 1942, Nicolas Jaurigue went to the chapel of
the Seventh Day Adventists of which he was the treasurer, in
their barrio, just across the provincial road from his house, to
attend religious services, and sat on the front bench facing
the altar with the other officials of the organization and the
barrio lieutenant, Casimiro Lozada. Inside the chapel it was
quite bright as there were electric lights.
Defendant and appellant Avelina Jaurigue entered the chapel
shortly after the arrival of her father, also for the purpose of
attending religious services, and sat on the bench next to the
last one nearest the door. Amado Capina was seated on the
other side of the chapel. Upon observing the presence of
Avelina Jaurigue, Amado Capina went to the bench on which
Avelina was sitting and sat by her right side, and, without
saying a word, Amado, with the greatest of impudence,
placed his hand on the upper part of her right thigh. On
observing this highly improper and offensive conduct of
Amado Capina, Avelina Jaurigue, conscious of her personal
dignity and honor, pulled out with her right hand the fan
knife marked Exhibit B, which she had in a pocket of her
dress, with the intention of punishing Amado's offending
hand. Amado seized Avelina's right hand, but she quickly
grabbed the knife with her left hand and stabbed Amado
once at the base of the left side of the neck, inflicting upon
him a wound about 4 1/2 inches deep, which was necessarily

mortal. Nicolas Jaurigue, who was seated on one of the front

benches, saw Amado bleeding and staggering towards the
altar, and upon seeing his daughter still holding the bloody
knife, he approached her and asked: "Why did you do that,"
and answering him Avelina said: "Father, I could not endure
anymore." Amado Capina died from the wound a few minutes
later. Barrio lieutenant Casimiro Lozada, who was also in the
same chapel, approached Avelina and asked her why she did
that, and Avelina surrendered herself, saying: "Kayo na po
ang bahala sa aquin," meaning: "I hope you will take care of
me," or more correctly, "I place myself at your disposal."
Fearing that Amado's relatives might retaliate, barrio
lieutenant Lozada advised Nicolas Jaurigue and herein
defendant and appellant to go home immediately, to close
their doors and windows and not to admit anybody into the
house, unless accompanied by him. That father and daughter
went home and locked themselves up, following instructions
of the barrio lieutenant, and waited for the arrival of the
municipal authorities; and when three policemen arrived in
their house, at about 10 o'clock that night, and questioned
them about the incident, defendant and appellant
immediately surrendered the knife marked as Exhibit B, and
informed said policemen briefly of what had actually
happened in the chapel and of the previous acts and conduct
of the deceased, as already stated above, and went with said
policemen to the police headquarters, where her written
statements were taken, and which were presented as a part
of the evidence for the prosecution.
The high conception of womanhood that our people possess,
however humble they may be, is universal. It has been
entertained and has existed in all civilized communities.
A beautiful woman is said to be a jewel; a good woman, a
treasure; and that a virtuous woman represents the only true
nobility. And they are the future wives and mothers of the
land. Such are the reasons why, in the defense of their honor,
when brutally attacked, women are permitted to make use of
all reasonable means available within their reach, under the
circumstances. Criminologists and courts of justice have
entertained and upheld this view.
On the other hand, it is the duty of every man to protect and
show loyalty to womanhood, as in the days of chivalry. There
is a country where women freely go out unescorted and, like

the beautiful roses in their public gardens, they always

receive the protection of all. That country is Switzerland.
In the language of Viada, aside from the right to life on which
rests the legitimate defense of our own person, we have the
right to property acquired by us, and the right to honor which
is not the least prized of our patrimony (1 Viada, Codigo
Penal, 5th ed., pp. 172, 173).
The attempt to rape a woman constitutes an unlawful
aggression sufficient to put her in a state of legitimate
defense, inasmuch as a woman's honor cannot but be
esteemed as a right as precious, if not more, than her very
existence; and it is evident that a woman who, thus
imperiled, wounds, nay kills the offender, should be afforded
exemption from criminal liability, since such killing cannot be
considered a crime from the moment it became the only
means left for her to protect her honor from so great an
outrage (1 Viada, Codigo Penal, 5th ed., p. 301; People vs.
Luague and Alcansare, 62 Phil., 504). .
As long as there is actual danger of being raped, a woman is
justified in killing her aggressor, in the defense of her honor.
Thus, where the deceased grabbed the defendant in a dark
night at about 9 o'clock, in an isolated barrio trail, holding her
firmly from behind, without warning and without revealing his
identity, and, in the struggle that followed, touched her
private parts, and that she was unable to free herself by
means of her strength alone, she was considered justified in
making use of a pocket knife in repelling what she believed
to be an attack upon her honor, and which ended in his
death, since she had no other means of defending herself,
and consequently exempt from all criminal liability (People
vs. De la Cruz, 16 Phil., 344).
And a woman, in defense of her honor, was perfectly justified
in inflicting wounds on her assailant with a bolo which she
happened to be carrying at the time, even though her cry for
assistance might have been heard by people nearby, when
the deceased tried to assault her in a dark and isolated
place, while she was going from her house to a
certain tienda, for the purpose of making purchases (United
States vs. Santa Ana and Ramos, 22 Phil., 249).
In the case, however, in which a sleeping woman was
awakened at night by someone touching her arm, and,
believing that some person was attempting to abuse her, she

asked who the intruder was and receiving no reply, attacked

and killed the said person with a pocket knife, it was held
that, notwithstanding the woman's belief in the supposed
attempt, it was not sufficient provocation or aggression to
justify her completely in using deadly weapon. Although she
actually believed it to be the beginning of an attempt against
her, she was not completely warranted in making such a
deadly assault, as the injured person, who turned out to be
her own brother-in-law returning home with his wife, did not
do any other act which could be considered as an attempt
against her honor (United States vs. Apego, 23 Phil., 391)..
In the instant case, if defendant and appellant had killed
Amado Capina, when the latter climbed up her house late at
night on September 15, 1942, and surreptitiously entered her
bedroom, undoubtedly for the purpose of raping her, as
indicated by his previous acts and conduct, instead of merely
shouting for help, she could have been perfectly justified in
killing him, as shown by the authorities cited above..
According to the facts established by the evidence and found
by the learned trial court in this case, when the deceased sat
by the side of defendant and appellant on the same bench,
near the door of the barrio chapel and placed his hand on the
upper portion of her right thigh, without her consent, the said
chapel was lighted with electric lights, and there were
already several people, about ten of them, inside the chapel,
including her own father and the barrio lieutenant and other
dignitaries of the organization; and under the circumstances,
there was and there could be no possibility of her being
raped. And when she gave Amado Capina a thrust at the
base of the left side of his neck, inflicting upon him a mortal
wound 4 1/2 inches deep, causing his death a few moments
later, the means employed by her in the defense of her honor
was evidently excessive; and under the facts and
circumstances of the case, she cannot be legally declared
completely exempt from criminal liability..
But the fact that defendant and appellant immediately and
voluntarily and unconditionally surrendered to the barrio
lieutenant in said chapel, admitting having stabbed the
deceased, immediately after the incident, and agreed to go
to her house shortly thereafter and to remain there subject to
the order of the said barrio lieutenant, an agent of the
authorities (United States vs. Fortaleza, 12 Phil., 472); and

the further fact that she had acted in the immediate

vindication of a grave offense committed against her a few
moments before, and upon such provocation as to produce
passion and obfuscation, or temporary loss of reason and
self-control, should be considered as mitigating
circumstances in her favor (People vs. Parana, 64 Phil., 331;
People vs. Sakam, 61 Phil., 27; United States vs. Arribas, 1
Phil., 86).
Defendant and appellant further claims that she had not
intended to kill the deceased but merely wanted to punish his
offending hand with her knife, as shown by the fact that she
inflicted upon him only one single wound. And this is another
mitigating circumstance which should be considered in her
favor (United States vs. Brobst, 14 Phil., 310; United States
vs. Diaz, 15 Phil., 123).
The claim of the prosecution, sustained by the learned trial
court, that the offense was committed by the defendant and
appellant, with the aggravating circumstance that the killing
was done in a place dedicated to religious worship, cannot be
legally sustained; as there is no evidence to show that the
defendant and appellant had murder in her heart when she
entered the chapel that fatal night. Avelina is not a criminal
by nature. She happened to kill under the greatest
provocation. She is a God-fearing young woman, typical of
our country girls, who still possess the consolation of
religious hope in a world where so many others have
hopelessly lost the faith of their elders and now drifting away
they know not where.
The questions raised in the second and third assignments of
error appear, therefore, to be well taken; and so is the first
assignment of error to a certain degree.
In the mind of the court, there is not the least doubt that, in
stabbing to death the deceased Amado Capina, in the
manner and form and under the circumstances above
indicated, the defendant and appellant committed the crime
of homicide, with no aggravating circumstance whatsoever,
but with at least three mitigating circumstances of a qualified
character to be considered in her favor; and, in accordance
with the provisions of article 69 of the Revised Penal Code,
she is entitled to a reduction by one or two degrees in the
penalty to be imposed upon her. And considering the
circumstances of the instant case, the defendant and

appellant should be accorded the most liberal consideration

possible under the law (United States vs. Apego, 23 Phil.,
391; United States vs. Rivera, 41 Phil., 472; People vs.
Mercado, 43 Phil., 950)..
The law prescribes the penalty of reclusion temporal for the
crime of homicide; and if it should be reduced by two
degrees, the penalty to be imposed in the instant case is that
of prision correccional; and pursuant to the provisions of
section 1 of Act No. 4103 of the Philippine Legislature, known
as the Indeterminate Sentence Law, herein defendant and
appellant should be sentenced to an indeterminate penalty
ranging from arresto mayor in its medium degree, to prision
correccional in its medium degree. Consequently, with the
modification of judgment appealed from, defendant and
appellant Avelina Jaurigue is hereby sentenced to an
indeterminate penalty ranging from two months and one day
of arresto mayor, as minimum, to two years, four months,
and one day ofprision correccional, as maximum, with the
accessory penalties prescribed by law, to indemnify the heirs
of the deceased Amado Capina, in the sum of P2,000, and to
suffer the corresponding subsidiary imprisonment, not to
exceed 1/3 of the principal penalty, in case of insolvency, and
to pay the costs. Defendant and appellant should also be
given the benefit of 1/2 of her preventive imprisonment, and
the knife marked Exhibit B ordered confiscated. So ordered..
Ozaeta, Perfecto, and Bengzon, JJ., concur.
Separate Opinions
HILADO, J., concurring:
In past dissenting and concurring opinions my view regarding
the validity or nullity of judicial proceedings in the Japanesesponsored courts which functioned in the Philippines during
the Japanese occupation has been consistent. I am not
abandoning it. But in deference to the majority who sustain
the opposite view, and because no party litigant herein has
raised the question, I have taken part in the consideration of
this case on the merits. And, voting on the merits, I concur in
the foregoing decision penned by Justice De Joya.

Gonzalo B. Callanta (counsel de oficio) for defendantappellant.

MAKASIAR, J.:
This is an appeal from the decision of the Court of First
Instance of South Cotabato, Branch I, in Criminal Cases Nos.
1815 and 1816 for murder which, after a joint trial, resulted
in the conviction of the accused in a decision rendered on
September 8, 1970, with the following pronouncement:
Thus, we have a crime of MURDER qualified by treachery with
the aggravating circumstance of evident premeditation offset
by the mitigating circumstance of voluntary surrender. The
proper penalty imposable, therefore, is RECLUSION
PERPETUA (Arts. 248 and 64, Revised Penal Code).
Accordingly, finding Mamerto Narvaez guilty beyond
reasonable doubt of the crime of murder,

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. Nos. L-33466-67 April 20, 1983
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MAMERTO NARVAEZ, defendant-appellant.
The Solicitor General for plaintiff-appellee.

(a) In Criminal Case No. 1815, he is hereby sentenced to

RECLUSION PERPETUA, to indemnify the heirs of the
deceased Davis Q. Fleischer in the sum of P 12,000.00 as
compensatory damages, P 10,000.00 as moral damages, P
2,000.00 as attorney's fees, the offended party having been
represented by a private prosecutor, and to pay the costs;
(b) In Criminal Case No. 1816, he is hereby sentenced to
RECLUSION PERPETUA, to indemnify the heirs of the
deceased Flaviano Rubia in the sum of P12,000.00 as
compensatory damages, P10,000.00 as moral damages,
P2,000.00 as attorney's fees, the offended party having been
represent by a private prosecutor, and to pay the costs (p.
48, rec.).

The facts are summarized in the People's brief, as follows:

At about 2:30 in the afternoon of August 22, 1968, Graciano
Juan, Jesus Verano and Cesar Ibanez together with the two
deceased Davis Fleischer and Flaviano Rubia, were fencing
the land of George Fleischer, father of deceased Davis
Fleischer. The place was in the boundary of the highway and
the hacienda owned by George Fleischer. This is located in
the municipality of Maitum, South Cotabato. At the place of
the fencing is the house and rice drier of appellant Mamerto
Narvaez (pp. 179-182, t.s.n., Pieza II). At that time, appellant
was taking his rest, but when he heard that the walls of his
house were being chiselled, he arose and there he saw the
fencing going on. If the fencing would go on, appellant would
be prevented from getting into his house and the bodega of
his ricemill. So he addressed the group, saying 'Pare, if
possible you stop destroying my house and if possible we will
talk it over what is good,' addressing the deceased Rubia,
who is appellant's compadre. The deceased Fleischer,
however, answered: 'No, gademit, proceed, go ahead.'
Appellant apparently lost his equilibrium and he got his gun
and shot Fleischer, hitting him. As Fleischer fell down, Rubia
ran towards the jeep, and knowing there is a gun on the jeep,
appellant fired at Rubia, likewise hitting him (pp. 127-133,
t.s.n., Defense transcript). Both Fleischer and Rubia died as a
result of the shotting' (pp. 9-14, t.s.n., Pieza I, pp. 8-9,
Appellant's Brief, p.161, rec.).
It appears, however, that this incident is intertwined with the
long drawn out legal battle between the Fleischer and Co.,
Inc. of which deceased Fleischer was the secretary-treasurer
and deceased Rubia the assistant manager, on the one hand,
and the land settlers of Cotabato, among whom was
appellant.
From the available records of the related cases which had
been brought to the Court of Appeals (CA-G.R. Nos. 28858-R

and 50583-R) and to this Court on certiorari (G.R. No. L26757 and L-45504), WE take judicial notice of the following
antecedent facts:
Appellant was among those persons from northern and
central Luzon who went to Mindanao in 1937 and settled in
Maitum, a former sitio of Kiamba and now a separate
municipality of South Cotabato. He established his residence
therein, built his house, cultivated the area, and was among
those who petitioned then President Manuel L. Quezon to
order the subdivision of the defunct Celebes Plantation and
nearby Kalaong Plantation totalling about 2,000 hectares, for
distribution among the settlers.
Shortly thereafter, Fleischer and Company, headed by
George W. Fleischer, an American landowner in Negros
Oriental, filed sales application No. 21983 on June 3, 1937
over the same area formerly leased and later abandoned by
Celebes Plantation Company, covering 1,017.2234 hectares.
Meanwhile, the subdivision was ordered and a public land
surveyor did the actual survey in 1941 but the survey report
was not submitted until 1946 because of the outbreak of the
second world war. According to the survey, only 300 hectares
Identified as Lots Nos. 22, 26 and 38, Ps. 176 Kiamba, were
set aside for Sales Application No. 21983, while the rest were
subdivided into sublots of 5 to 6 hectares each to be
distributed among the settlers (pp. 32-33, G.R. No. L-45504).
The 300 hectares set aside for the sales application of
Fleischer and Company was declared open for disposition,
appraised and advertised for public auction. At the public
auction held in Manila on August 14, 1948, Fleischer and
Company was the only bidder for P6,000.00. But because of
protests from the settlers the corresponding award in its
favor was held in abeyance, while an investigator was sent
by the Director of Lands to Kiamba in the person of Atty. Jose

T. Gozon Atty. Gozon came back after ten days with an

amicable settlement signed by the representative of the
settlers. This amicable settlement was later repudiated by
the settlers, but the Director of Lands, acting upon the report
of Atty. Gozon, approved the same and ordered the formal
award of the land in question to Fleischer and Company. The
settlers appealed to the Secretary of Agriculture and Natural
Resources, who, however, affirmed the decision in favor of
the company.
On May 29, 1950, the settlers filed Civil Case No. 240 in the
Court of First Instance of Cotabato which then consisted only
of one sala, for the purpose of annulling the order of the
Secretary of Agriculture and Natural Resources which
affirmed the order of the Director of Lands awarding the
contested land to the company. The settlers as plaintiffs, lost
that case in view of the amicable settlement which they had
repudiated as resulting from threats and intimidation, deceit,
misrepresentation and fraudulent machination on the part of
the company. They appealed to the Court of Appeals (CA-G.R.
No. 28858-R) which likewise affirmed on August 16, 1965 the
decision of the Court of First Instance in favor of the
company.
This resulted in the ouster of the settlers by an order of the
Court of First Instance dated September 24, 1966, from the
land which they had been occupying for about 30 years.
Among those ejected was the appellant who, to avoid
trouble, voluntarily dismantled his house, built in 1947 at a
cost of around P20,000.00, and transferred to his other house
which he built in 1962 or 1963 near the highway. The second
house is not far from the site of the dismantled house. Its
ground floor has a store operated by Mrs. June Talens who
was renting a portion thereof. He also transferred his store
from his former residence to the house near the highway.
Aside from the store, he also had a rice mill located about 15

meters east of the house and a concrete pavement between

the rice mill and the house, which is used for drying grains
and copra.
On November 14, 1966, appellant was among the settlers on
whose behalf Jose V. Gamboa and other leaders filed Civil
Case No. 755 in the Court of First Instance of Cotabato,
Branch I. to obtain an injunction or annulment of the order of
award with prayer for preliminary injunction. During the
pendency of this case, appellant on February 21, 1967
entered into a contract of lease with the company whereby
he agreed to lease an area of approximately 100 to 140
square meters of Lot No. 38 from the company (Exh. 9, p. 1,
Folder of Exhibits for Defense) for a consideration of P16.00
monthly. According to him, he signed the contract although
the ownership of the land was still uncertain, in order to
avoid trouble, until the question of ownership could be
decided. He never paid the agreed rental, although he
alleges that the milling job they did for Rubia was considered
payment. On June 25, 1968, deceased Fleischer wrote him a
letter with the following tenor:
You have not paid six months rental to Fleischers & Co., Inc.
for that portion of land in which your house and ricemill are
located as per agreement executed on February 21, 1967.
You have not paid as as even after repeated attempts of
collection made by Mr. Flaviano Rubia and myself.
In view of the obvious fact that you do not comply with the
agreement, I have no alternative but to terminate our
agreement on this date.
I am giving you six months to remove your house, ricemill,
bodega, and water pitcher pumps from the land of Fleischers
& Co., Inc. This six- month period shall expire on December
31, 1966.

In the event the above constructions have not been removed

within the six- month period, the company shall cause their
immediate demolition (Exhibit 10, p. 2, supra).

Second Assignment of Error: That the court a quo also erred

in convicting defendant-appellant although he acted in
defense of his rights (p. 20 of Appellant's Brief, p. 145, rec.).

On August 21, 1968, both deceased, together with their

laborers, commenced fencing Lot 38 by putting bamboo
posts along the property line parallel to the highway. Some
posts were planted right on the concrete drier of appellant,
thereby cutting diagonally across its center (pp. 227-228,
t.s.n., Vol. 2), with the last post just adjacent to appellant's
house (p. 231, t.s.n., supra). The fence, when finished, would
have the effect of shutting off the accessibility to appellant's
house and rice mill from the highway, since the door of the
same opens to the Fleischers' side. The fencing continued on
that fateful day of August 22, 1968, with the installation of
four strands of barbed wire to the posts.

The act of killing of the two deceased by appellant is not

disputed. Appellant admitted having shot them from the
window of his house with the shotgun which he surrendered
to the police authorities. He claims, however, that he did so
in defense of his person and of his rights, and therefore he
should be exempt from criminal liability.
Defense of one's person or rights is treated as a justifying
circumstance under Art. 11, par. 1 of the Revised Penal Code,
but in order for it to be appreciated, the following requisites
must occur:
First. Unlawful aggression;

At about 2:30 p.m. on the said day, appellant who was taking
a nap after working on his farm all morning, was awakened
by some noise as if the wall of his house was being chiselled.
Getting up and looking out of the window, he found that one
of the laborers of Fleischer was indeed chiselling the wall of
his house with a crowbar (p. 129, t.s.n., Vol. 6), while
deceased Rubia was nailing the barbed wire and deceased
Fleischer was commanding his laborers. The jeep used by the
deceased was parked on the highway. The rest of the incident
is narrated in the People's Brief as above-quoted. Appellant
surrendered to the police thereafter, bringing with him
shotgun No. 1119576 and claiming he shot two persons (Exh.
Pp. 31, Defense Exhibits).
Appellant now questions the propriety of his conviction,
assigning the following errors:
First Assignment of Error: That the lower court erred in
convicting defendant-appellant despite the fact that he acted
in defense of his person; and

Second. Reasonable necessity of the means employed to

prevent or repel it;
Third. Lack of sufficient provocation on the part of the person
defending himself (Art. 11, par. 1, Revised Penal Code, as
amended).
The aggression referred to by appellant is the angry
utterance by deceased Fleischer of the following words:
"Hindi, sigue, gademit, avante", in answer to his request
addressed to his compadre, the deceased Rubia, when he
said, "Pare, hinto mona ninyo at pag-usapan natin kung ano
ang mabuti" (pp. 227-229, t.s.n., Vol. 6). This was in reaction
to his having been awakened to see the wall of his house
being chiselled. The verbal exchange took place while the
two deceased were on the ground doing the fencing and the
appellant was up in his house looking out of his window (pp.
225-227, supra). According to appellant, Fleischer's remarks
caused this reaction in him: "As if, I lost my senses and

unknowingly I took the gun on the bed and unknowingly also

I shot Mr. Fleischer, without realizing it, I shot Mr. Fleischer"
(p. 132, supra). As for the shooting of Rubia, appellant
testified:
When I shot Davis Fleischer, Flaviano Rubia was nailing and
upon hearing the shot, Mr. Rubia looked at Mr. Fleischer and
when Mr. Fleischer fell down, Mr. Rubia ran towards the jeep
and knowing that there was a firearm in the jeep and thinking
that if he will take that firearm he will kill me, I shot at him (p.
132, supra, Emphasis supplied).
The foregoing statements of appellant were never
controverted by the prosecution. They claim, however, that
the deceased were in lawful exercise of their rights of
ownership over the land in question, when they did the
fencing that sealed off appellant's access to the highway.
A review of the circumstances prior to the shooting as borne
by the evidence reveals that five persons, consisting of the
deceased and their three laborers, were doing the fencing
and chiselling of the walls of appellant's house. The fence
they were putting up was made of bamboo posts to which
were being nailed strands of barbed wire in several layers.
Obviously, they were using tools which could be lethal
weapons, such as nail and hammer, bolo or bamboo cutter,
pliers, crowbar, and other necessary gadgets. Besides, it was
not disputed that the jeep which they used in going to the
place was parked just a few steps away, and in it there was a
gun leaning near the steering wheel. When the appellant
woke up to the sound of the chiselling on his walls, his first
reaction was to look out of the window. Then he saw the
damage being done to his house, compounded by the fact
that his house and rice mill will be shut off from the highway
by the fence once it is finished. He therefore appealed to
hiscompadre, the deceased Rubia, to stop what they were
doing and to talk things over with him. But deceased

Fleischer answered angrily with 'gademit' and directed his

men to proceed with what they were doing.
The actuation of deceased Fleischer in angrily ordering the
continuance of the fencing would have resulted in the further
chiselling of the walls of appellant's house as well as the
closure of the access to and from his house and rice millwhich were not only imminent but were actually in progress.
There is no question, therefore, that there was aggression on
the part of the victims: Fleischer was ordering, and Rubia was
actually participating in the fencing. This was indeed
aggression, not on the person of appellant, but on his
property rights.
The question is, was the aggression unlawful or lawful? Did
the victims have a right to fence off the contested property,
to destroy appellant's house and to shut off his ingress and
egress to his residence and the highway?
Article 30 of the Civil Code recognizes the right of every
owner to enclose or fence his land or tenements.
However, at the time of the incident on August 22, 1968, Civil
Case no. 755 for annulment of the order of award to Fleischer
and Company was still pending in the Court of First Instance
of Cotabato. The parties could not have known that the case
would be dismissed over a year after the incident on August
22, 1968, as it was dismissed on January 23, 1970 on ground
of res judicata, in view of the dismissal in 1965 (by the Court
of Appeals) of Civil Case No. 240 filed in 1950 for the
annulment of the award to the company, between the same
parties, which the company won by virtue of the compromise
agreement in spite of the subsequent repudiation by the
settlers of said compromise agreement; and that such 1970
dismissal also carried the dismissal of the supplemental
petition filed by the Republic of the Philippines on November
28, 1968 to annul the sales patent and to cancel the

corresponding certificate of title issued to the company, on

the ground that the Director of Lands had no authority to
conduct the sale due to his failure to comply with the
mandatory requirements for publication. The dismissal of the
government's supplemental petition was premised on the
ground that after its filing on November 28, 1968, nothing
more was done by the petitioner Republic of the Philippines
except to adopt all the evidence and arguments of plaintiffs
with whom it joined as parties-plaintiffs.
Hence, it is reasonable to believe that appellant was indeed
hoping for a favorable judgment in Civil Case No. 755 filed on
November 14, 1966 and his execution of the contract of lease
on February 21, 1967 was just to avoid trouble. This was
explained by him during cross-examination on January 21,
1970, thus:
It happened this way: we talked it over with my Mrs. that we
better rent the place because even though we do not know
who really owns this portion to avoid trouble. To avoid trouble
we better pay while waiting for the case because at that
time, it was not known who is the right owner of the place. So
we decided until things will clear up and determine who is
really the owner, we decided to pay rentals (p. 169, t.s.n.,
Vol.6).
In any case, Fleischer had given him up to December 31,
1968 (Exh.10, p. 2, Defense Exhibits) within which to vacate
the land. He should have allowed appellant the peaceful
enjoyment of his properties up to that time, instead of
chiselling the walls of his house and closing appellant's
entrance and exit to the highway.
The following provisions of the Civil Code of the Philippines
are in point:

Art. 536. In no case may possession be acquired through

force or intimidation as long as there is a possessor who
objects thereto. He who believes that he has an action or a
right to deprive another of the holding of a thing must invoke
the aid of the competent court, if the holder should refuse to
deliver the thing.
Art. 539. Every possessor has a right to be respected in his
possession; and should he be disturbed therein he shall be
protected in or restored to said possession by the means
established by the laws and the Rules of Court (Articles 536
and 539, Civil Code of the Philippines).
Conformably to the foregoing provisions, the deceased had
no right to destroy or cause damage to appellant's house, nor
to close his accessibility to the highway while he was
pleading with them to stop and talk things over with him. The
assault on appellant's property, therefore, amounts to
unlawful aggression as contemplated by law.
Illegal aggression is equivalent to assault or at least
threatened assault of immediate and imminent kind (People
vs. Encomiendas, 46 SCRA 522).
In the case at bar, there was an actual physical invasion of
appellant's property which he had the right to resist,
pursuant to Art. 429 of the Civil Code of the Philippines which
provides:
Art. 429. The owner or lawful possessor of a thing has the
right to exclude any person from the enjoyment and disposal
thereof. For this purpose, he may use such force as may be
reasonably necessary to repel or prevent an actual or
threatened unlawful physical invasion or usurpation of his
property (Emphasis supplied).

The reasonableness of the resistance is also a requirement of

the justifying circumstance of self-defense or defense of
one's rights under paragraph 1 of Article 11, Revised Penal
Code. When the appellant fired his shotgun from his window,
killing his two victims, his resistance was disproportionate to
the attack.

WE likewise find the aggravating (qualifying) circumstance of

evident premeditation not sufficiently established. The only
evidence presented to prove this circumstance was the
testimony of Crisanto Ibaez, 37 years old, married, resident
of Maitum, South Cotabato, and a laborer of Fleischer and
Company, which may be summarized as follows:

WE find, however, that the third element of defense of

property is present, i.e., lack of sufficient provocation on the
part of appellant who was defending his property. As a matter
of fact, there was no provocation at all on his part, since he
was asleep at first and was only awakened by the noise
produced by the victims and their laborers. His plea for the
deceased and their men to stop and talk things over with him
was no provocation at all.

On August 20, 1968 (two days before the incident) at about

7:00 A.M., he was drying corn near the house of Mr. and Mrs.
Mamerto Narvaez at the crossing, Maitum, South Cotabato,
when the accused and his wife talked to him. Mrs. Narvaez
asked him to help them, as he was working in the hacienda.
She further told him that if they fenced their house, there is a
head that will be broken. Mamerto Narvaez added 'Noy, it is
better that you will tell Mr. Fleischer because there will be
nobody who will break his head but I will be the one.' He
relayed this to Mr. Flaviano Rubia, but the latter told him not
to believe as they were only Idle threats designed to get him
out of the hacienda (pp. 297-303, t.s.n., Vol. 2).

Be that as it may, appellant's act in killing the deceased was

not justifiable, since not all the elements for justification are
present. He should therefore be held responsible for the
death of his victims, but he could be credited with the special
mitigating circumstance of incomplete defense, pursuant to
paragraph 6, Article 13 of the Revised Penal Code.
The crime committed is homicide on two counts. The
qualifying circumstance of treachery cannot be appreciated
in this case because of the presence of provocation on the
part of the deceased. As WE held earlier in People vs.
Manlapaz (55 SCRA 598), the element of a sudden
unprovoked attack is therefore lacking.
Moreover, in order to appreciate alevosia, "it must clearly
appear that the method of assault adopted by the aggressor
was deliberately chosen with a special view to the
accomplishment of the act without risk to the assailant from
any defense that the party assailed might have made. This
cannot be said of a situation where the slayer acted
instantaneously ..." (People vs. Caete, 44 Phil. 481).

This single evidence is not sufficient to warrant appreciation

of the aggravating circumstance of evident premeditation. As
WE have consistently held, there must be "direct evidence of
the planning or preparation to kill the victim, .... it is not
enough that premeditation be suspected or surmised, but the
criminal intent must be evidenced by notorious outward acts
evincing the determination to commit the crime" (People vs.
Ordioles, 42 SCRA 238). Besides, there must be a "showing"
that the accused premeditated the killing; that the culprit
clung to their (his) premeditated act; and that there was
sufficient interval between the premeditation and the
execution of the crime to allow them (him) to reflect upon the
consequences of the act" (People vs. Gida, 102 SCRA 70).
Moreover, the obvious bias of witness Crisanto Ibaez, as a
laborer of the deceased Davis Fleischer, neutralizes his
credibility.

Since in the case at bar, there was no direct evidence of the

planning or preparation to kill the victims nor that the
accused premeditated the killing, and clung to his
premeditated act, the trial court's conclusion as to the
presence of such circumstance may not be endorsed.

mitigating circumstance of incomplete defense-in view of the

presence of unlawful aggression on the part of the victims
and lack of sufficient provocation on the part of the
appellant-and by two generic mitigating circumstance of
voluntary surrender and passion and obfuscation.

Evident premeditation is further negated by appellant

pleading with the victims to stop the fencing and destroying
his house and to talk things over just before the shooting.

Article 249 of the Revised Penal Code prescribes the penalty

for homicide as reclusion temporal. Pursuant to Article
69, supra, the penalty lower by one or two degrees shall be
imposed if the deed is not wholly excusable by reason of the
lack of some of the conditions required to justify the same.
Considering that the majority of the requirements for defense
of property are present, the penalty may be lowered by two
degrees, i.e., to prision correccional And under paragraph 5
of Article 64, the same may further be reduced by one
degree, i.e., arresto mayor, because of the presence of two
mitigating circumstances and no aggravating circumstance.

But the trial court has properly appreciated the presence of

the mitigating circumstance of voluntary surrender, it
appearing that appellant surrendered to the authorities soon
after the shooting.
Likewise, We find that passion and obfuscation attended the
commission of the crime. The appellant awoke to find his
house being damaged and its accessibility to the highway as
well as of his rice mill bodega being closed. Not only was his
house being unlawfully violated; his business was also in
danger of closing down for lack of access to the highway.
These circumstances, coming so near to the time when his
first house was dismantled, thus forcing him to transfer to his
only remaining house, must have so aggravated his
obfuscation that he lost momentarily all reason causing him
to reach for his shotgun and fire at the victims in defense of
his rights. Considering the antecedent facts of this case,
where appellant had thirty years earlier migrated to this socalled "land of promise" with dreams and hopes of relative
prosperity and tranquility, only to find his castle crumbling at
the hands of the deceased, his dispassionate plea going
unheeded-all these could be too much for any man-he should
be credited with this mitigating circumstance.
Consequently, appellant is guilty of two crimes of homicide
only, the killing not being attended by any qualifying nor
aggravating circumstance, but extenuated by the privileged

The civil liability of the appellant should be modified. In the

case of Zulueta vs. Pan American World Airways (43 SCRA
397), the award for moral damages was reduced because the
plaintiff contributed to the gravity of defendant's reaction. In
the case at bar, the victims not only contributed but they
actually provoked the attack by damaging appellant's
properties and business. Considering appellant's standing in
the community, being married to a municipal councilor, the
victims' actuations were apparently designed to humiliate
him and destroy his reputation. The records disclose that his
wife, councilor Feliza Narvaez, was also charged in these two
cases and detained without bail despite the absence of
evidence linking her to the killings. She was dropped as a
defendant only upon motion of the prosecution dated
October 31, 1968. (p. 14, CFI rec. of Crim. Case No. 1816),
but acted upon on November 4, 1968 (p. 58, CFI rec. of
Criminal Case No. 1815).

Moreover, these cases arose out of an inordinate desire on

the part of Fleischer and Company, despite its extensive
landholdings in a Central Visayan province, to extend its
accumulation of public lands to the resettlement areas of
Cotabato. Since it had the capability-financial and otherwiseto carry out its land accumulation scheme, the lowly settlers,
who uprooted their families from their native soil in Luzon to
take advantage of the government's resettlement program,
but had no sufficient means to fight the big landowners, were
the ones prejudiced. Thus, the moral and material suffering
of appellant and his family deserves leniency as to his civil
liability.
Furthermore, Article 39 of the Revised Penal Code requires a
person convicted of prision correccional or arrests mayor and
fine who has no property with which to meet his civil
liabilities to serve a subsidiary imprisonment at the rate of
one (1) day for each P 2.50. However, the amendment
introduced by Republic Act No. 5465 on April 21, 1969 made
the provisions of Art. 39 applicable to fines only and not to
reparation of the damage caused, indemnification of
consequential damages and costs of proceedings.
Considering that Republic Act 5465 is favorable to the
accused who is not a habitual delinquent, it may be given
retroactive effect pursuant to Article 22 of the Revised Penal
Code.
WHEREFORE, FINDING APPELLANT GUILTY BEYOND
REASONABLE DOUBT OF ONLY TWO (2) HOMICIDES,
MITIGATED BY THE PRIVILEGED EXTENUATING
CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE AS WELL AS
BY TWO (2) GENERIC MITIGATING CIRCUMSTANCES OF
VOLUNTARY SURRENDER AND OBFUSCATION, WITHOUT ANY
AGGRAVATING CIRCUMSTANCE, APPELLANT IS HEREBY
SENTENCED TO SUFFER AN IMPRISONMENT OF FOUR (4)
MONTHS OF ARRESTO MAYOR, TO INDEMNIFY EACH GROUP

OF HEIRS OF DAVIS FLEISCHER AND OF FLAVIANO RUBIA IN

THE SUM OF FOUR THOUSAND (P 4,000.00) PESOS, WITHOUT
SUBSIDIARY IMPRISONMENT AND WITHOUT ANY AWARD FOR
MORAL DAMAGES AND ATTORNEY'S FEES.
CONSIDERING THAT APPELLANT HAS BEEN UNDER
DETENTION FOR ALMOST FOURTEEN (14) YEARS NOW SINCE
HIS VOLUNTARY SURRENDER ON AUGUST 22,1968, HIS
IMMEDIATE RELEASE IS HEREBY ORDERED. NO COSTS.
SO ORDERED.
Fernando, C.J., Teehankee, Concepcion Jr., Guerrero, De
Castro, Melencio-Herrera, Escolin Vasquez and Relova, JJ.,
concur.
Aquino, J., is on leave.
Plana, J., in the result.

Separate Opinions

ABAD SANTOS, J., dissenting:

I dissent. The self-defense of the Revised Penal Code refers to
unlawful aggression on persons, not property Plana, J., in the
result.

GUTIERREZ, JR., J., dissenting:

While I agree with the order to release the appellant, I am

constrained to dissent in part. It is true that Art. 429, Civil
Code of the Philippines, provides that the owner or legal
possessor of a thing may use such force as may be
reasonably necessary to repel or prevent an actual or
threatened unlawful physical invasion or usurpation of his
property. It seems to me, however, that an attack on the
person defending his property is an indispensable element
where an accused pleads self-defense but what is basically
defended is only property.

imprisonment, but without any award for moral damages and

attorney's fees.

Defense of property is not of such importance as the right to

life and defense of property can only be invoked when it is
coupled with some form of attack on the person of one
entrusted with said property. The defense of property,
whether complete or incomplete, to be available in
prosecutions for murder or homicide must be coupled with an
attack by the one getting the property on the person
defending it.

ABAD SANTOS, J., dissenting:

In the case now before Us, there is absolutely no evidence

that an attack was attempted, much less made upon the
person of appellant. The mere utterance "No, gademit
proceed, go ahead" is not the unlawful aggression which
entitles appellant to the pela of self-defense. I agree with the
majority opinion that the crime is homicide but without any
privileged mitigating circumstance.
Therefore, since the appellant is guilty beyond reasonable
doubt of two (2) homicides, mitigated by the two generic
mitigating circumstances of voluntary surrender and
obfuscation, without any aggravating circumstance,
maximum the sentence the appellant should have served
was prision mayor plus the indemnification to each group of
heirs of Davis Fleischer and of Flamiano Rubia of the sum of
Four Thousand (P4,000.00) Pesos, without subsidiary

Considering that appellant has been under detention for

almost fourteen (14) years now since August 22, 1968, he
has served the penalty and should be released.

Separate Opinions

I dissent. The self-defense of the Revised Penal Code refers to

unlawful aggression on persons, not property Plana, J., in the
result.

GUTIERREZ, JR., J., dissenting:

While I agree with the order to release the appellant, I am
constrained to dissent in part. It is true that Art. 429, Civil
Code of the Philippines, provides that the owner or legal
possessor of a thing may use such force as may be
reasonably necessary to repel or prevent an actual or
threatened unlawful physical invasion or usurpation of his
property. It seems to me, however, that an attack on the
person defending his property is an indispensable element
where an accused pleads self-defense but what is basically
defended is only property.
Defense of property is not of such importance as the right to
life and defense of property can only be invoked when it is
coupled with some form of attack on the person of one
entrusted with said property. The defense of property,
whether complete or incomplete, to be available in

prosecutions for murder or homicide must be coupled with an

attack by the one getting the property on the person
defending it.
In the case now before Us, there is absolutely no evidence
that an attack was attempted, much less made upon the
person of appellant. The mere utterance "No, gademit
proceed, go ahead" is not the unlawful aggression which
entitles appellant to the pela of self-defense. I agree with the
majority opinion that the crime is homicide but without any
privileged mitigating circumstance.
Therefore, since the appellant is guilty beyond reasonable
doubt of two (2) homicides, mitigated by the two generic
mitigating circumstances of voluntary surrender and
obfuscation, without any aggravating circumstance,
maximum the sentence the appellant should have served
was prision mayor plus the indemnification to each group of
heirs of Davis Fleischer and of Flamiano Rubia of the sum of
Four Thousand (P4,000.00) Pesos, without subsidiary
imprisonment, but without any award for moral damages and
attorney's fees.
Considering that appellant has been under detention for
almost fourteen (14) years now since August 22, 1968, he
has served the penalty and should be released.

DECISION
TINGA, J.:
On January 17, 1997, in the midst of a drinking spree on the
eve of the fiesta in Liloan, Ormoc City, an intoxicated Nicanor
Butad uttered the ominous words "I will shoot you" to Randy
Sabang, to the horror of young Sabang's father, Nilo, and the
other onlookers. Within moments, Butad himself lay dead
from four gunshot wounds on his body. Nilo Sabang,
petitioner herein, who was charged with and later convicted
for the homicide, admits to the killing of Butad, but claims
that the shooting was accidental and done as a means of
defending his son. An array of witnesses for the prosecution
and the defense provides a competing set of particulars as to
the shooting. Ultimately, the prosecution's version, supported
by the physical evidence, stands out as the truth.

Supreme Court of the Philippines

546 Phil. 673

SECOND DIVISION
G.R. NO. 168818, March 09, 2007
NILO SABANG, PETITIONER, VS. THE PEOPLE OF THE
PHILIPPINES, RESPONDENT.

This much is admitted. At around 6:30 p.m. on that fateful

night, petitioner and Butad were having drinks together with
spouses Cruz and Andresa Villamor outside the store of
Melania Sombilon in Sitio Landing, Barangay Liloan, Ormoc
City.[1] Butad, a civilian agent with the Philippine National
Police, was then armed with a .38-caliber revolver which was
tucked in his holster. In the midst of the drinking spree,
Randy Sabang suddenly and unexpectedly appeared before
the group. His appearance triggered a negative reaction from
Butad, who then uttered the words "I will shoot you" to Randy
Sabang.[2]
Certain circumstances attaching to this evident threat are
disputed, as are the events that consequently followed. What
is certain is that shortly afterwards, Butad lay dead, having
sustained four (4) gunshot wounds from his own revolver.
Petitioner appears to have fled but voluntarily surrendered
thereafter, turning over the revolver as he surrendered. [3]
Photographs of Butad as he lay dead on the scene were
presented in evidence,[4] as was the official report on his

autopsy, prepared by the City Health Office of Ormoc City.

The autopsy report[5] indicated the following findings:
GENERAL SURVEY:
Examined a fairly nourished/fairly developed male cadaver
with approximate height of 165 cm & weight of 65 kg in state
of rigor mortis.
FINDINGS:
Bullet wound 1.0 x 0.5 cm at anterior chest wall, 14 cm
from midline, right, along 3rd intercostal space anterior
axillary line penetrating thoracic cavity lacerating upper lobe
of right lung.
2.
Bullet wound 0.7 x 0.5 cm at 4th intercostal space
mid-axillary line, right, penetrating thoracic cavity lacerating
upper lobe of right lung.
3.
Bullet wound 1.5 x 0.7 cm at distal 3rd lateral aspect
of right arm injuring skin & muscles.
4.
Bullet wound 0.7 cm x 0.7 cm at mid vertebral column
fracturing spine of 8th thoracic vertebra.
CAUSE OF DEATH:
1.

Hypovolemia 2o to multiple bullet wound.

During arraignment, petitioner pleaded innocence, but during
the presentation of the evidence for the defense, he claimed
to have acted in defense of a relative. Petitioner and four (4)
other witnesses testified for the defense. The following facts
were sought to be established by petitioner:
By the time Butad had joined what was to be his last drinking
spree, he was already in a belligerent mood. Earlier that
afternoon, he had been chasing after Ramil Perez when the
latter demanded payment for a bet Butad had lost over a
cockfight.[6]

shoot you," the deceased already had his revolver aimed at

Randy.[8] At this point, Andresa Villamor, a niece of the
deceased, told Butad, "Please don't[,] tiyo, he's the son of
Nilo."[9] Petitioner and Caparoso also testified that at that
time, Butad had his revolver pointed at Randy. [10] Petitioner
claimed that he then grabbed the arm of Butad, attempting
to twist it toward his body and away from his son. As they
were grappling and the revolver was pointed towards the
body of Butad, petitioner claimed he heard gunshots, and
only after the shots were fired was he able to "take the gun"
from Butad.[11] Petitioner's account is substantially
corroborated by Caparoso.[12]
This version of the shooting, however, stands in sharp
contrast to that presented by the prosecution.
Natividad Payud, an eyewitness to the incident, testified that
while the group of the deceased Butad, petitioner, and the
spouses Cruz and Andresa Villamor was having a drinking
spree, Randy suddenly entered the scene. Butad, appearing
surprised, thrust a glass of Tanduay near Randy's mouth and
uttered the words, "I will shoot you." Payud is certain that at
this point, Butad was not holding any gun. [13] Andresa
Villamor, another eyewitness to the incident, confirmed
Payud's testimony that Butad was holding a glass and not a
gun when he uttered those words.[14]
Petitioner reacted to Butad's statement saying, "Just try to
shoot my child because I'll never fight for him because he is
a spoiled brat."[15] Andresa Villamor then chided Butad and
said, "Do not say that tiyo[,] because it's [sic] the son of Nilo
Sabang."[16]

The chase was witnessed by Celso Pepito, who would testify

for the defense.[7] As to the shooting itself, testifying for the
defense were petitioner himself, the storekeeper Sombilon,
and an eyewitness, Laurito Caparoso, who was situated right
across the road when the shooting occurred.

Unexpectedly, a person appeared on the scene and punched

Butad causing the latter to fall down lying partially on his
back. Petitioner, who was then sitting across Butad, stood up
and pulled the gun tucked in Butad's waist. He pointed the
gun at Butad and fired a shot at the latter's chest. [17] Payud
and Andresa Villamor both saw petitioner fire two (2) more
shots near Butad's chest.[18]

Sombilon testified that when Butad told Randy Sabang, "I will

In a Judgment[19] dated November 22, 1999, the trial court

convicted petitioner principally on the strength of the

testimony of Dr. Edilberto P. Calipayan, the physician who
conducted the post mortem examination of Butad's body, to
the effect that the absence of powder burns indicates that
the gunshots were fired at a distance of more than 10 inches
from the victim's body and not close range as claimed by
petitioner.[20]
The Court of Appeals affirmed petitioner's conviction in a
Decision[21] dated August 16, 2004 and denied
reconsideration in a Resolution[22] dated July 6, 2005.
In this Petition,[23] petitioner prays for his acquittal contending
that he acted in defense of his son, a justifying circumstance
under Art. 11[24] of the Revised Penal Code. He claims that
Butad's act of aiming a gun at his son while uttering the
words "I will shoot you" was an aggression of the most
imminent kind which prompted him to try to wrestle the gun
from Butad leading to the accidental firing of the fatal shots.
Petitioner theorizes that the fact that Butad was then fully
clothed could have accounted for the absence of powder
burns on Butad's body. He disputes the trial court's finding
that the wounds would have looked oblique had the shots
been fired during a struggle, claiming that round entrance
wounds could likewise be produced in near contact fire.
He further avers that Payud was not really an eyewitness to
the event, pointing to the testimony of Benjamin Mahusay
that he and Payud were already out of Sitio Landing and were
heading home when they heard the gunshots. Likewise,
Andresa Villamor's testimony is allegedly confined to seeing
Butad sprawled on the ground.
The Office of the Solicitor General insists on petitioner's
conviction but asks that the award of moral damages be
reduced from P100,000.00 to P50,000.00. [25]
We shall first resolve the question of whether petitioner's
insistence on the justifying circumstance of defense of
relative deserves merit.

In order to successfully claim that he acted in defense of a

relative, the accused must prove the concurrence of the
following requisites: (1) unlawful aggression on the part of
the person killed or injured; (2) reasonable necessity of the
means employed to prevent or repel the unlawful aggression;
and (3) the person defending the relative had no part in
provoking the assailant, should any provocation been given
by the relative attacked.[26] Unlawful aggression is a primary
and indispensable requisite without which defense of relative,
whether complete or otherwise, cannot be validly invoked. [27]
It is well-settled in this jurisdiction that once an accused has
admitted that he inflicted the fatal injuries on the deceased,
it is incumbent upon him in order to avoid criminal liability, to
prove the justifying circumstance claimed by him with clear,
satisfactory and convincing evidence. He cannot rely on the
weakness of the prosecution but on the strength of his own
evidence, "for even if the evidence of the prosecution were
weak it could not be disbelieved after the accused himself
had admitted the killing." Thus, petitioner must establish with
clear and convincing evidence that the killing was justified,
and that he incurred no criminal liability therefor. [28]
Unlawful aggression must be clearly established by the
evidence. In this case, there is a divergence in the
testimonies of the prosecution and defense witnesses as to
whether Butad aimed a gun at petitioner's son as he uttered
the words "I will shoot you." With this conflict emerges the
question of whether petitioner sensed an imminent threat to
his son's life. Payud unequivocally testified that petitioner
even dismissed Butad's utterance saying, "Just try to shoot
my child because I'll never fight for him because he is a
spoiled brat."
This indicates to us that petitioner did not consider Butad's
words a threat at all.
These circumstances led the trial court to conclude that there
was no unlawful aggression on the part of Butad which could
have precipitated petitioner's actions. This finding, affirmed
by the Court of Appeals, is conclusive on the Court barring
any showing of any arbitrariness or oversight of material

facts that could change the result.[29]

Furthermore, the presence of four (4) gunshot wounds on
Butad's body negates the claim that the killing was justified
but instead indicates a determined effort to kill him. Even
assuming that it was Butad who initiated the attack, the fact
that petitioner was able to wrest the gun from him signifies
that the aggression which Butad had started already ceased.
Petitioner became the unlawful aggressor when he continued
to shoot Butad even as he already lay defenseless on the
ground.[30]
On this point, the defense's own witness, Caparoso, said in
his Counter Affidavit[31] and during direct examination that
after the first shot was fired, he saw petitioner take
possession of the gun as Butad released his hold of it. It was
after petitioner already had the gun that Caparoso heard
more gunshots.[32] Even petitioner admitted that he had an
easy time twisting the hand with which Butad was
supposedly holding his revolver because the latter was
already very drunk having started drinking before noon that
day.[33]
Another crucial point to consider is that the prosecution's
theory is consistent with the physical evidence.
The distance from which a shot is fired affects the nature and
extent of the injury caused on the victim. In close range fire,
the injury is not only due to the missile but also due to the
pressure of the expanded gases, flame and other solid
products of combustion. In contrast, distant fire usually
produces the characteristic effect of the bullet alone. [34] A
shot fired from a distance of more than 60 cm or about two
(2) feet does not produce the burning, smudging or tattooing
typically present in loose contact or near fire, short range fire
and medium range fire.[35]
Powder burns is a term commonly used by physicians
whenever there is blackening of the margin at the entrance
of the gunshot wound. The blackening is due to smoke
smudging, gunpowder tattooing and, to a certain extent,
burning of the wound margin.[36] As found by the medico-legal

officer in this case, Butad's body did not have any powder
burns. In response to the court's queries, Dr. Calipayan
testified:
COURT'S QUESTIONS
Q Being an expert, is it a scientific fact that every gun burst
within ten (10) inches distance as you said, is it always a fact
that there is presence of powder burns?
A It is always a fact, if the caliber of the firearm is higher or I
can say, may be .22 caliber as well as there is a gun powder
that burst. If it is fired about less than ten (10) inches from
the surface of the skin, it will always cause powder burns.
Q And in this case, you cannot indicate the presence of
powder burns?
A Because I did not find any. [37]
The fact that there were no powder burns on Butad's body
indicates that the shots were fired at a distance of more than
two (2) feet and not at close range as the defense suggests.
Moreover, Butad sustained four (4) gunshot wounds, three
(3) of which were in the chest area, circumstances which are
inconsistent with the defense's theory of accidental firing. [38]
On the credibility of the prosecution's witnesses, the defense
questions Payud's testimony averring that its witness,
Benjamin Mahusay, testified that he and Payud were already
on their way home when they heard the gunshots. According
to Mahusay, he attended a cockfight which ended at 5
o'clock in the afternoon of January 17, 1997. He went home
afterwards and claimed to have met Payud on the way home
at around 5 in the afternoon.[39] It was at this time that he and
Payud supposedly heard gunshots.
Mahusay's account, however, conflicts with the established
fact that Butad was shot to death at around 6:30 that night.
His testimony all the more loses significance in the face of
Payud's compelling testimony that she went back to Sitio
Landing to fetch her children and witnessed the killing. [40]
Moreover, it is not true, as the defense insists, that Andresa

Villamor did not witness the actual shooting. She

unequivocally testified that she turned back and saw Sabang
take the pistol from Butad and point the gun at the latter. She
instinctively covered her eyes shouting, "Do not shoot my
uncle!" She uncovered her eyes after hearing the first
gunshot, saw petitioner still pointing the gun at Butad, and
watched as petitioner shot Butad two (2) more times. [41]

16, 2004 and its Resolution dated July 6, 2005, affirming the
Judgment rendered by the Regional Trial Court dated
November 26,

In the final analysis, petitioner failed to demonstrate any

reason to disturb the findings and conclusions of the trial
court and the Court of Appeals. His conviction of the crime of
homicide is certain. Under Art. 249 of the Revised Penal
Code, homicide is punished by reclusion temporal. There
being one (1) mitigating circumstance of voluntary surrender,
the penalty shall be imposed in its minimum period. [42]
Applying the benefits of the Indeterminate Sentence Law, the
trial court correctly imposed an indeterminate penalty
ranging from eight (8) years and one (1) day of prision mayor
as minimum to twelve (12) years and one (1) day of
reclusion temporal as maximum.

SO ORDERED.

As regards the matter of damages, we affirm the award of

civil indemnity in the amount of P50,000.00 for the heirs of
Butad in line with recent jurisprudence. Civil indemnity is
mandatory and is granted to the heirs of the victim without
need of proof other than the commission of the crime. [43] We
also affirm the award of P180,000.00 representing loss of
earning capacity at a reasonable life expectancy of three (3)
years considering that Butad was already 67 years old at the
time of the incident.[44] Likewise affirmed are the award of
P50,000.00 as burial expenses duly proven, attorney's fees of
P40,000.00, and appearance fee of P1,000.00 per hearing.
We, however, agree with the Office of the Solicitor General
that consistent with pertinent jurisprudence, the award of
moral damages should be reduced from P100,000.00 to
P50,000.00.[45] Finally, in the absence of any aggravating
circumstance, the trial court correctly withheld the award of
exemplary damages.[46]
WHEREFORE, the instant petition is DENIED for lack of merit.
The assailed Decision of the Court of Appeals dated August

1999, are AFFIRMED with the MODIFICATION that the award

of moral damages is reduced to P50,000.00. Costs against
petitioner.

Quisumbing, (Chairperson), Carpio, Carpio Morales, and

Velasco, Jr., JJ., concur.
[1]

TSN, May 28, 1999, pp. 6-10, 15; August 21, 1997, p. 8.

[2]

TSN, August 21, 1997, pp. 8-9.

[3]

TSN, May 28, 1999, p. 30.

[4]

Records, pp. 160-161.

[5]

Id. at 159.

[6]

TSN, May 28, 1999, pp. 13-14.

[7]

TSN, December 4, 1998, pp. 8-9.

[8]

TSN, February 11, 1999, p. 15.

[9]

Id. at 16.

[10]

TSN, August 24, 1998, p. 16; May 28, 1999, p. 21.

[11]

TSN, May 28, 1999, pp. 28-30.

[12]

TSN, August 24, 1998, pp. 17-20.

[13]

TSN, August 21, 1997, pp. 8-9.

[14]

TSN, June 16, 1997, p. 10.

[15]

TSN, August 21, 1997, p. 10.

provided that the following circumstances concur:

[16]

TSN, June 16, 1997, p. 11; August 21, 1997, p. 10.

First. Unlawful aggression;

[17]

TSN, August 21, 1997, pp. 11-13.

[18]

Second. Reasonable necessity of the means employed to

prevent or repel it;

Id. at 13; TSN, June 16, 1997, pp. 14-15.

[19]

Records, pp. 406-410. The dispositive portion of the

Judgment reads:
Wherefore, the Court finds the accused Nilo Sabang GUILTY
beyond reasonable doubt of the crime of homicide as
charged, and hereby penalizes him after appreciating one
mitigating circumstance of voluntary surrender, to an
indeterminate imprisonment of 8 years and 1 day prision
mayor as minimum to 12 years and 1 day reclusion temporal
as maximum, and to pay the offended party the sum of
P50,000.00 as indemnity; sum of P50,000.00 as burial
expense; the sum of P180,000.00 as loss of income at a
reasonable life expectancy of the victim at 3 years; the sum
of P100,000.00 for moral damages; and P40,000.00 as
attorney's fees including P1,000.00 per appearance.
If the accused was detained, the period of his detention shall
be credited to him in full if he abides by the terms for
convicted prisoners, for only 4/5 thereof.
SO ORDERED.
[20]
TSN, August 4, 1999, pp. 12-17.
[21]

Rollo, pp. 30-38; Penned by Associate Justice Pampio A.

Abarintos and concurred in by Associate Justices Mercedes
Gozo-Dadole and Ramon M. Bato, Jr.
[22]

[23]

Id. at 39-40.
Id. at 3-29.

Third. Lack of sufficient provocation on the part of the person

defending himself.
2. Anyone who acts in defense of the person or rights of his
spouses, ascendants, descendants, or legitimate, natural, or
adopted brothers or sisters or his relatives by affinity in the
same degrees, and those by consanguinity within the fourth
civil degree, provided that the first and second requisites
prescribed in the next preceding circumstance are present,
and the further requisite, in case the provocation was given
by the person attacked, that the one making defense had no
part therein.
...
[25]

Rollo, pp. 55-69.

[26]

Revised Penal Code, Art. 11.

[27]

People v. Ventura, G.R. Nos. 148145-46, July 5, 2004, 433

SCRA 389, 409.
[28]

Cabuslay v. People, G.R. No. 129875, September 30, 2005,

471 SCRA 241, 256-257.
[29]

People v. Alba, 425 Phil. 666 (2002).

[30]

People v. Barnuevo, 418 Phil. 521 (2001).

[31]

Records, p. 25.

[32]

TSN, August 24, 1998, p. 20.

[33]

TSN, May 28, 1999, pp. 38 and 44.

[34]

Pedro P. Solis, Legal Medicine (1987), p. 354.

[24]

Art. 11. Justifying circumstances.-The following do not

incur any criminal liability:
1. Anyone who acts in defense of his person or rights,

[35]

Id. at 357-358. A short range fire covers a distance of 1 to

15 cm while a medium range fire covers a distance of more
than 15 cm but less than 60 cm.
[36]

Id. at 350.

[37]

TSN, August 4, 1999, pp. 15-16.

[38]

Pedro P. Solis, Legal Medicine, supra note 34 at 354.

[39]

TSN, May 5, 1998, pp. 8-10, 18.

[40]

TSN, August 21, 1997, pp. 6-7.

[41]

TSN, June 16, 1997, pp. 13-15; 36-37.

[42]

Revised Penal Code, Art. 64(2).

[43]

People v. Opuran, G.R. Nos. 147674-75, March 17, 2004,

425 SCRA 654, 673.
[44]

Butad's widow testified that his income is P5,000.00 a

month; RTC Records, p. 408.
[45]

Marzonia v. People, G.R. No. 153794, June 26, 2006, 492

SCRA 627.
[46]

Civil Code, Art. 2230.

Supreme Court of the Philippines

Copyright 2016 - Batas.org

530 Phil. 501
FIRST DIVISION
G.R. NO. 153875, August 16, 2006
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE,
VS. ROLANDO DAGANI Y REYES AND OTELLO
SANTIANO Y LEONIDA, ACCUSED-APPELLANTS.
DECISION
AUSTRIA-MARTINEZ, J.:
For review before the Court is the Decision dated June 20,
2002[1] of the Court of Appeals (CA) which affirmed the

Decision of the Regional Trial Court of the City of Manila,

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

Dagani approached Javier who had been striking a bottle of

beer on the table. Javier then pulled out a .22 caliber revolver
and attempted to fire at Dagani, but the gun failed to go off.
Then suddenly, while outside the canteen, Santiano heard
gunfire and, from his vantage point, he saw Javier and Dagani
grappling for a .22 caliber gun which belonged to Javier.
During the course of the struggle, the gun went off, forcing
Santiano to fire a warning shot. He heard Javier's gun fire
again, so he decided to rush into the canteen. Santiano then
shot Javier from a distance of less than four meters.
Appellants invoked the justifying circumstances of selfdefense and lawful performance of official duty as PNR
security officers. They also argued that the prosecution failed
to establish treachery and conspiracy.
The RTC rendered its Decision, the dispositive portion of
which reads:
WHEREFORE, finding both accused Otello Santiano y Leonida
and Rolando Dagani y Reyes guilty beyond reasonable doubt
of the crime of Murder defined and punished under Art. 248,
RPC, with the presence of the mitigating circumstance of
voluntary surrender and granting them the benefit of [the]
Indeterminate Sentence Law, both accused are hereby
sentenced to each suffer an Indeterminate prison term of
TEN (10) YEARS and ONE (1) DAY of prision mayor as
minimum, to EIGHTEEN (18) YEARS and ONE (1) DAY of
reclusion temporal x x x.
Both accused are hereby ordered to indemnify the heirs of
the victim the sum of P50,000.00 as death indemnity, the
sum of P31,845.00 as funeral and burial expenses, the sum
of P30,000.00 as and for [sic] attorney's fees and the further
sum of P1,000.00 per appearance of counsel.
Both accused shall be credited with the full extent of their
preventive imprisonment. Both accused are hereby
committed to the Director, National Penitentiary, Muntinlupa,
Metro Manila for service of Sentence.
SO ORDERED.[3]

In brief, the RTC held that appellants failed to prove that

Javier attempted to squeeze the trigger of the .22 caliber gun
when he pointed it at Dagani; that during the course of the
struggle for the possession of the .22 caliber gun, the danger
to the life of the accused ceased to be imminent; that in
grappling for the weapon, Dagani "controlled" the hands of
Javier and pushed them away from his body; that the
appellants failed to produce the two empty shells as physical
evidence of the gunfire allegedly caused by Javier; that no
points of entry or bullet markings on the walls of the canteen
were shown; that, in light of these findings, no unlawful
aggression was present on the part of the victim; that the
appellants failed to prove that they were on official duty at
the time of the incidence; that, since it was not established
that Javier actually fired his gun, the injury inflicted upon him
cannot be regarded as a necessary consequence of the due
performance of an official duty; that the appellants were
acting in conspiracy; that the qualifying circumstance of
treachery attended the killing, considering that Javier had
been shot while his hands were being held by Dagani and as
his body was out of balance and about to fall; and that the
mitigating circumstance of voluntary surrender should be
appreciated in favor of the appellants.
The appellants appealed to the CA and assigned the following
errors:
I
THE LOWER COURT GRAVELY ERRED IN NOT APPRECIATING
SELF DEFENSE ON THE PART OF THE ACCUSED.
II
THE LOWER COURT ERRED WHEN IT FAILED TO CONSIDER
THE FACT THAT THE ACCUSED-APPELLANTS WERE IN LAWFUL
PERFORMANCE OF AN OFFICIAL DUTY.
III
THE LOWER COURT GRAVELY AND SERIOUSLY ERRED IN
RULING THAT THERE WAS CONSPIRACY.
IV
THE LOWER COURT GRAVELY ERRED IN FINDING THAT THE

PROSECUTION WAS ABLE TO ESTABLISH BEYOND

REASONABLE DOUBT THAT THE ACCUSED ARE GUILTY OF
MURDER.[4]
The CA rendered its Decision, the dispositive portion of which
states:
WHEREFORE, the appealed judgment of conviction is
MODIFIED. Appellants are hereby sentenced to reclusion
perpetua. The award for attorney's fees and appearance fees
for counsel are hereby deleted. In all the other aspects, the
appealed decision is maintained.
Let the entire records of the case be elevated to the Supreme
Court for the mandated review.
SO ORDERED.[5]
The CA affirmed the findings of fact as well as the salient
portions of the RTC Decision, but deleted the award of
attorney's fees and the per appearance fees of counsel since,
the CA reasoned, the instant case is criminal in nature which
is under the control of the public prosecutor, and,
additionally, the RTC failed to justify this award in the body of
its Decision. And last, the CA found that the RTC erroneously
applied the Indeterminate Sentence Law since the penalty for
Murder, at the time of the incident, was reclusion perpetua
which is an indivisible penalty to be imposed in its entirety,
regardless of the attending mitigating circumstance of
voluntary surrender.
Appellants are now before this Court submitting for resolution
the same matters argued before the CA. Through their
Manifestation dated February 11, 2003,[6] appellants prayed
to dispense with the filing of additional briefs.
As of date, the records show that despite the efforts exerted
by the surety and the responsible law officers to locate the
appellants, the latter could not be found and have jumped
bail.[7]
The appeal is partly meritorious.
Appellants argue that the courts a quo misappreciated the
facts and erred in finding that there was no unlawful

aggression on the part of the victim. They insist that the

victim, Javier, had been armed with a revolver at the time he
was struggling with appellant Dagani; that the former "could
have easily killed the latter;" that, given the fact that Javier
had been drinking, "it is quite probable for Javier to act
harshly and aggressively towards peace officers such as the
accused;"[8] and that Javier actually fired three shots from
his .22 caliber gun.[9]
We are not convinced.
When self-defense is invoked, the burden of evidence shifts
to the accused to show that the killing was legally justified.
Having owned the killing of the victim, the accused should be
able to prove to the satisfaction of the Court the elements of
self-defense in order to avail of this extenuating
circumstance. He must discharge this burden by clear and
convincing evidence. When successful, an otherwise
felonious deed would be excused, mainly predicated on the
lack of criminal intent of the accused. Self-defense requires
that there be (1) an unlawful aggression by the person
injured or killed by the offender, (2) reasonable necessity of
the means employed to prevent or repel that unlawful
aggression, and (3) lack of sufficient provocation on the part
of the person defending himself. All these conditions must
concur.[10]
Unlawful aggression, a primordial element of self-defense,
would presuppose an actual, sudden and unexpected attack
or imminent danger on the life and limb of a person not a
mere threatening or intimidating attitude[11] but most
importantly, at the time the defensive action was taken
against the aggressor.[12] To invoke self-defense successfully,
there must have been an
unlawful and unprovoked attack that endangered the life of
the accused, who was then forced to inflict severe wounds
upon the assailant by employing reasonable means to resist
the attack.[13]
In the instant case, the assertions that it was "quite
probable" that Javier, during the course of the struggle for

the firearm, "could have easily killed" the appellants are

uncertain and speculative. There is aggression in
contemplation of the law only when the one attacked faces
real and immediate threat to one's life. The peril sought to be
avoided must be imminent and actual, not just speculative. [14]
To sum up the matter, we quote the findings of the CA:
The defense was unable to prove that there was unlawful
aggression on the part of Javier. They were unable to present
evidence that the victim actually fired his gun. No spent
shells from the .22 caliber pistol were found and no bullets
were recovered from the scene of the incident. Javier also
tested negative for gunpowder residue. Moreover, the trial
court found appellant Dagani's account of the incident to be
incredible and self-serving. In sum, the defense presented a
bare claim of self-defense without any proof of the existence
of its requisites.[15]
Even if it were established that Javier fired his gun as the
appellants so insist, the imminence of the danger to their
lives had already ceased the moment Dagani held down the
victim and grappled for the gun with the latter. After the
victim had been thrown off-balance, there was no longer any
unlawful aggression that would have necessitated the act of
killing.[16] When an unlawful aggression that has begun no
longer exists, the one who resorts to self-defense has no right
to kill or even to wound the former aggressor. [17] When Javier
had been caught in the struggle for the possession of the gun
with appellant Dagani, the grave peril envisaged by appellant
Santiano, which impelled him to fire at the victim, had then
ceased to a reasonable extent,[18] and undoubtedly, Santiano
went beyond the call of self-preservation when he proceeded
to inflict the excessive and fatal injuries on Javier, even when
the alleged unlawful aggression had already ceased. [19]
The second element of self-defense demands that the means
employed to neutralize the unlawful aggression are
reasonable and necessary. It is settled that reasonable
necessity of the means employed does not imply material
commensurability between the means of attack and defense.
What the law requires is rational equivalence. [20] The
circumstances in their entirety which surround the grappling
of the firearm by Dagani and Javier, such as the nature and

number of gunshot wounds sustained by the victim [21] which

amounted to two fatal wounds,[22] that Dagani was able to
restrain the hands of Javier and push them away from his
body,[23] that Dagani was larger than Javier and had finished
Special Weapons and Tactics (SWAT) hand-to-hand combat
training,[24] and Javier, as admitted by the appellants, was
inebriated at the time of the incident,[25] do not justify
appellant Santiano's act of fatally shooting the victim twice.
[26]

All things considered, the appellants' plea of self-defense is

not corroborated by competent evidence. The plea of selfdefense cannot be justifiably entertained where it is not only
uncorroborated by any separate competent evidence but is
in itself extremely doubtful.[27] Whether the accused acted in
self-defense is a question of fact. Like alibi, the affirmative
defense of self-defense is inherently weak because, as
experience has demonstrated, it is easy to fabricate and
difficult to disprove.[28] This Court, therefore, finds no
reversible error on the part of the courts a quo in rejecting
the claim of self-defense.
Appellants set up the defense that they were in the lawful
performance of their official duties. They specifically aver
that they had been ordered by their desk officer to proceed
to the canteen in response to a telephone call stating that
there was a group "creating trouble;" that they were in the
call of duty and exercising their functions and responsibilities
as members of the PNR Civil Security Office to preserve
peace and order and protect the lives and property in the
PNR Compound;[29] and that, invoking jurisprudence, as
security officers in the performance of duty, like the police,
they must stand their ground and overcome the opponent,
and the force that may be exerted must differ from that
which ordinarily may be offered in self-defense.[30]
Article 11 of the Revised Penal Code provides that a person
who acts in the fulfillment of a duty or in the lawful exercise
of a right or office does not incur any criminal liability. Two
requisites must concur before this defense can prosper: 1)
the accused must have acted in the performance of a duty or
in the lawful exercise of a right or office; and 2) the injury

caused or the offense committed should have been the

necessary consequence of such lawful exercise.[31] These
requisites are absent in the instant case.
As found by the CA:
The defense failed to prove that the security officers were in
fact on duty at the time they were at the canteen. The trial
court gave weight to the fact that the appellants were unable
to submit their daily time records to show that they were on
duty at the time. Appellants' assertion that they were
ordered to go on 24-hour duty was belied by PNR Security
Investigator Rolando Marinay's testimony that PNR security
officers work in two 12-hour shifts, from 7:00 a.m. to 7:00
p.m. and from 7:00 p.m. to 7:00 a.m.
Moreover, since it was not established that Javier fired his
gun, the injury inflicted upon him cannot be regarded as a
necessary consequence of appellants' due performance of an
official duty.[32]
As stated, considering that the imminent or actual danger to
the life of the appellants had been neutralized when Dagani
grappled with Javier and restrained his hands; that Javier had
been thrown off-balance; that Dagani had been specially
trained for these purposes; and that Javier had been drinking
immediately prior to the scuffle, this Court holds that the
fatal injuries that appellant Santiano inflicted on the victim
cannot be deemed to be necessary consequences of the
performance of his duty as a PNR security officer.[33] While it
is recognized that police officers if indeed the appellants
can be likened to them must stand their ground and
overwhelm their opponents, in People v. Ulep,[34] this Court
counseled:
The right to kill an offender is not absolute, and may be used
only as a last resort, and under circumstances indicating that
the offender cannot otherwise be taken without bloodshed.
The law does not clothe police officers with authority to
arbitrarily judge the necessity to kill. It may be true that
police officers sometimes find themselves in a dilemma when
pressured by a situation where an immediate and decisive,
but legal, action is needed. However, it must be stressed that
the judgment and discretion of police officers in the
performance of their duties must be exercised neither

capriciously nor oppressively, but within reasonable limits. In

the absence of a clear and legal provision to the contrary,
they must act in conformity with the dictates of a sound
discretion, and within the spirit and purpose of the law. We
cannot countenance trigger-happy law enforcement officers
who indiscriminately employ force and violence upon the
persons they are apprehending. They must always bear in
mind that although they are dealing with criminal elements
against whom society must be protected, these criminals are
also human beings with human rights.[35]
But this Court cannot agree with the findings of the courts a
quo that the appellants were in conspiracy.
The RTC simply held:
The Information cited conspiracy of the accused. Since it can
also be committed thru simultaneous/concerted action and
considering that Javier was shot by Santiano while being held
by Dagani, under jurisprudence, conspiracy is present. [36]
The tenor of the factual findings of the CA is equally
unsatisfactory:
Moreover, the facts show that Javier was shot by appellant
Santiano as he was being subdued by appellant Dagani. The
trial court held that the manner of the attack was indicative
of a joint purpose and design by the appellants. [37]
Courts must judge the guilt or innocence of the accused
based on facts and not on mere conjectures, presumptions,
or suspicions.[38] Other than the plain fact that the victim had
been shot by one of the accused while being held by a coaccused, there is no other evidence that the appellants were
animated by the same purpose or were moved by a previous
common accord. It follows that the liability of the accused
must be determined on an individual basis. While no formal
agreement is necessary to establish conspiracy because
conspiracy may be inferred from the circumstances attending
the commission of the crime, yet, conspiracy must be
established by clear and convincing evidence. [39]
This Court has held that even if all the malefactors joined in
the killing, such circumstance alone does not satisfy the
requirement of conspiracy because the rule is that neither
joint nor simultaneous action is per se sufficient proof of
conspiracy. Conspiracy must be shown to exist as clearly and

convincingly as the commission of the offense itself.[40] Thus,

even assuming that Javier was simultaneously attacked, this
does not prove conspiracy. No evidence was presented to
show that the appellants planned to kill Javier or that
Dagani's overt acts facilitated that alleged plan. The
prosecution did not establish that the act of Dagani in trying
to wrestle the gun from Javier and in the process, held the
latter's hands, was for the purpose of enabling Santiano to
shoot at Javier. The prosecution had the burden to show
Dagani's intentional participation to the furtherance of a
common design and purpose[41] or that his action was all part
of a scheme to kill Javier. That Dagani did not expect
Santiano to shoot the victim is established when Santiano
testified that Dagani "seem[ed] to be shocked, he was
standing and looking at the victim" as Javier gradually fell to
the ground.[42] And since Dagani's conviction can only be
sustained if the crime had been carried out through a
conspiracy duly proven, in view of the failure of the
prosecution to discharge that burden, this Court is
constrained to acquit him.
And this Court cannot say that treachery attended the attack.
The RTC declared:
[T]he Court believes that Javier was shot while his body was
out-balanced and about to fall to the right side and while his
hands were being held by Dagani. Javier, therefore, was shot
at when he has no means to defend himself, hence, the
killing was attended by the qualifying circumstance of
treachery.[43]
which the CA affirmed as follows:
The findings of the court a quo clearly showed that Javier was
being held down and could not effectively use his weapon. As
such, the trial court held that Javier could not be considered
to be an armed man as he was being held down and was
virtually helpless.
It has been held that when an assault is made with a deadly
weapon upon an unarmed and unsuspecting victim who
[was] given no immediate provocation for the attack and
under conditions which made it impossible for him to evade
the attack, flee or make [a] defense, the act is properly

qualified as treachery, and the homicide resulting therefrom

is classified as murder.[44] x x x
Treachery under par.16 of Article 14 of the Revised Penal
Code is defined as the deliberate employment of means,
methods or forms in the execution of a crime against persons
which tend directly and specially to insure its execution,
without risk to the offender arising from the defense which
the intended victim might raise. Treachery is present when
two conditions concur, namely: (1) that the means, methods
and forms of execution employed gave the person attacked
no opportunity to defend himself or to retaliate; and (2) that
such means, methods and forms of execution were
deliberately and consciously adopted by the accused without
danger to his person.[45]
This Court has held that the suddenness of the attack, the
infliction of the wound from behind the victim, the vulnerable
position of the victim at the time the attack was made, or the
fact that the victim was unarmed, do not by themselves
render the attack as treacherous.[46] This is of particular
significance in a case of an instantaneous attack made by
the accused whereby he gained an advantageous position
over the victim when the latter accidentally fell and was
rendered defenseless.[47] The means employed for the
commission of the crime or the mode of attack must be
shown to have been consciously or deliberately adopted by
the accused to insure the consummation of the crime and at
the same time eliminate or reduce the risk of retaliation from
the intended victim.[48] For the rules on treachery to apply,
the sudden attack must have been preconceived by the
accused, unexpected by the victim, and without provocation
on the part of the latter.[49] Treachery is never presumed. Like
the rules on conspiracy, it is required that the manner of
attack must be shown to have been attended by treachery as
conclusively as the crime itself.[50]
The prosecution failed to convincingly prove that the assault
by the appellants had been deliberately adopted as a mode
of attack intended to insure the killing of Javier and without
the latter having the opportunity to defend himself. Other
than the bare fact that Santiano shot Javier while the latter
had been struggling with Dagani over the possession of the .

22 caliber gun, no other fact had been adduced to show that

the appellants consciously planned or predetermined the
methods to insure the commission of the crime, nor had the
risk of the victim to retaliate been eliminated during the
course of the struggle over the weapon, as the latter, though
struggling, had not been completely subdued. As already
stated, this Court must emphasize that the mere suddenness
of the attack, or the vulnerable position of the victim at the
time of the attack, or yet even the fact that the victim was
unarmed, do not by themselves make the attack treacherous.
[51]
It must be shown beyond reasonable doubt that the
means employed gave the victim no opportunity to defend
himself or retaliate, and that such means had been
deliberately or consciously adopted without danger to the life
of the accused.[52]
For these reasons, the Court is inclined to look upon the
helpless position of Javier as merely incidental to the attack,
and that the decision to shoot Javier was made in an instant.
[53]

Considering the rule that treachery cannot be inferred but

must be proved as fully and convincingly as the crime itself,
any doubt as to its existence must be resolved in favor of
Santiano. Accordingly, for failure of the prosecution to prove
treachery to qualify the killing to Murder, appellant Santiano
may only be convicted of Homicide.[54] The penalty, therefore,
under Article 249 of the Revised Penal Code, as amended, is
reclusion temporal.
The Office of the Solicitor General is correct in that the courts
a quo failed to consider the aggravating circumstance of
taking advantage of official position under Article 14 (1) of
the Revised Penal Code, since the accused, a PNR security
officer covered by the Civil Service, committed the crime with
the aid of a gun he had been authorized to carry as such. [55]
Considering that the mitigating circumstance of voluntary
surrender, as duly appreciated by the courts a quo, shall be
offset against the aggravating circumstance of taking
advantage of official position, the penalty should be imposed
in its medium period, pursuant to Article 64 (4) of the
aforesaid Code.

Applying the Indeterminate Sentence Law, the sentence of

appellant Santiano will consist of a minimum that is
anywhere within the full range of prision mayor, and a
maximum which is anywhere within reclusion temporal in its
medium period. This Court hereby fixes it to be from eight (8)
years and one (1) day of prision mayor as minimum, to
fourteen (14) years, eight (8) months, and one (1) day of
reclusion temporal, as maximum.
As to the award of damages, prevailing jurisprudence entitles
the heirs of the deceased to the amount of P50,000.00 as
civil indemnity for the death of the victim without need of
any evidence or proof of damages. [56]
The CA erred in deleting the attorney's fees and per
appearance fees for lack of factual basis. Although the CA is
correct in noting that the RTC failed to justify these awards in
the body of its Decision, this appeal opens the entire case for
review and, accordingly, the records show that the foregoing
amounts had been stipulated by the parties, [57] thereby
dispensing with the need to prove the same. [58]
As to moral damages, however, the widow of the victim,
Erlinda Javier, is not entitled to the same. She did not testify
on any mental anguish or emotional distress which she
suffered as a result of her husband's death. No other heirs of
Javier testified in the same manner. [59]
Inasmuch as the aggravating circumstance of taking
advantage of official position attended the killing, the Court
awards exemplary damages in the amount of P25,000.00 in
accordance with Articles 2230 and 2234 of the Civil Code and
prevailing jurisprudence.[60]
WHEREFORE, the Decision of the Court of Appeals in CA-G.R.
CR No. 15304 dated June 20, 2002 is MODIFIED. Appellant
Otello Santiano y Leonida is found GUILTY beyond
reasonable doubt of Homicide and is sentenced to suffer the
penalty of an indeterminate sentence from eight (8) years
and one (1) day of prision mayor as minimum to fourteen
(14) years, eight (8) months, and one (1) day of reclusion

temporal as maximum. Appellant Santiano is further ordered

to pay the heirs of the victim the amounts of P50,000.00 as
death indemnity, P31,845.00 as funeral and burial expenses,
P25,000.00 as exemplary damages, P30,000.00 as attorney's
fees and P1,000.00 per appearance of counsel. Appellant
Santiano shall be credited with the full extent of his
preventive imprisonment.
Appellant Rolando Dagani y Reyes is hereby ACQUITTED.
SO ORDERED.
Panganiban, C.J., (Chairperson), Ynares-Santiago, Callejo, Sr.,
and Chico-Nazario, JJ., concur.
[1]

Penned by Associate Justice Juan Q. Enriquez, Jr., with

Associate Justices Eugenio S. Labitoria and Mariano C. Del
Castillo, concurring, CA rollo, pp. 203-210.
[2]

Records, p. 1.

[3]

CA rollo, pp. 88-89.

[4]

Id. at 121.

[5]

Id. at 209.

[6]

Rollo, pp. 6-7.

[7]

Id. at 3-87.

[8]

CA rollo, pp. 121-122.

[9]

Id. at 123-124.

[10]

People v. Dela Cruz, 400 Phil. 872, 878 (2000); Cabuslay v.

People, G.R. No. 129875, September 30, 2005, 471 SCRA
241, 253.
[11]

People v. Dela Cruz, supra note 10; Toledo v. People, G.R.

No. 158057, September 24, 2004, 439 SCRA 94, 109; People

v. Escarlos, 457 Phil. 580, 596 (2003).

[12]

People v. Dela Cruz, supra note 10.

[13]

People v. Escarlos, supra note 11, at 595; People v.

Sarmiento, G.R. No. 126145, April 30, 2001, 357 SCRA 447,
457.
[14]

People v. Escarlos, supra note 11, at 596; People v.

Damitan, 423 Phil. 113, 123 (2001).
[15]

CA rollo, p. 206.

[16]

People v. Escarlos, supra note 11, at 597; People v.

Calabroso, 394 Phil. 658, 670 (2000); People v. Maalat, 341
Phil. 200, 206 (1997).
[17]

People v. Escarlos, supra note 11, at 597; People v.

Rabanal, 402 Phil. 709, 715 (2001).
[18]

People v. Escarlos, supra note 11, at 597; People v.

Geneblazo, 414 Phil. 103, 110 (2001).
[19]

[20]

People v. Escarlos, id.

Cabuslay v. People, supra note 10, at 262.

[26]

See People v. Escarlos, supra note 11; People v. Dela Cruz,

supra note 10, at 879; People v. Babor, 330 Phil. 923, 930931 (1996).
[27]

[28]

Senoja v. People, supra note 21, at 703; People v. Noay,

357 Phil. 295, 308 (1998).
[29]

CA rollo, p. 124.

[30]

Id. at 125, citing, e.g., People v. Mojica, 42 Phil. 784.

[31]

People v. Catbagan, G.R. Nos. 149430-32, February 23,

2004, 423 SCRA 535, 553; People v. Peralta, 403 Phil. 72, 89
(2001); People v. Ulep, 395 Phil. 78, 87 (2000); People v.
Belbes, 389 Phil. 500, 509 (2000).
[32]

CA rollo, p. 207.

[33]

See People v. Catbagan, supra note 31, at 554.

[34]

Supra note 31.

[35]

Id. at 92.

[36]

CA rollo, p. 88.

[37]

Id. at 207-208.

[38]

See People v. Legaspi, 387 Phil. 108 (2000).

[21]

See Senoja v. People, G.R. No. 160341, October 19, 2004,

440 SCRA 695, 708; People v. Escarlos, supra note 11, at
597; People v. Ubaldo, 419 Phil. 718, 730 (2001); People v.
Basadre, G.R. No. 131851, February 22, 2001, 352 SCRA 573,
585; People v. More, 378 Phil. 1153, 1161 (1999); People v.
Real, 367 Phil. 524, 535-536 (1999).
[22]

CA rollo, p. 51.

[23]

Id. at 75.

[24]

Id.

[25]

Id. at 120.

Toledo v. People, supra note 11, at 110.

[39]

Crisostomo v. Sandiganbayan, G.R. No. 152398, April 14,

2005, 456 SCRA 45, 73; People v. Agda, 197 Phil. 306, 314
(1982).
[40]

Crisostomo v. Sandiganbayan, supra note 39, at 73-74;

People v. Dorico, 153 Phil. 458, 475 (1973).
[41]

Crisostomo v. Sandiganbayan, supra note 39, at 74.

[42]

TSN, Hearing of June 18, 1990, p. 10.

[43]

[44]

114 (1997).
CA rollo, pp. 87-88.
Id. at 208.

[45]

People v. Caratao, 451 Phil. 588, 606-607 (2003); People

v. Gonzalez, Jr., 411 Phil. 893, 915 (2001); People v. Cabodoc,
331 Phil. 491, 510 (1996); People v. Malabago, 333 Phil. 20,
34 (1996).
[46]

People v. Gonzalez, Jr., supra.

[47]

Id.; People v. Cadag, 112 Phil. 314, 319 (1961); People v.

Ardisa, 154 Phil. 229, 243 (1974); People v. Genial, G.R. No.
105692, December 7, 1993, 228 SCRA 283, 291.

[56]

People v. Malinao, G.R. No. 128148, February 16, 2004,

423 SCRA 34, 53; People v. Solamillo, 452 Phil. 261, 281
(2003).
[57]

TSN, April 20, 1990, pp. 1-2; TSN, April 30, 1990, pp. 1-2;
Exhibit "X;" RTC Decision, CA rollo, p. 59; Formal Offer of
Evidence of the Prosecution dated April 26, 1990, p. 6.
[58]

Moreover, under Article 2208 of the Civil Code, attorney's

fees may be recovered when exemplary damages have been
awarded. See, e.g., Nueva Espaa v. People, G.R. No.
163351, June 21, 2005, 460 SCRA 547, 560.
[59]

[48]

People v. Gonzalez, Jr., supra note 45, at 915-916; People

v. Caratao, supra note 45, at 607; Luces v. People, 443 Phil.
636, 646 (2003).

People v. Ibaez, 455 Phil. 133, 166-167 (2003).

[60]

Nueva Espaa v. People, supra note 58, at 558; People v.

Malinao, supra note 56, at 55.

[49]

People v. Gonzalez, Jr., supra note 45, at 916; Sison v.

People, 320 Phil. 112, 135 (1995); People v. Abapo, G.R. Nos.
93632-33, December 28, 1994, 239 SCRA 469, 479.

Copyright 2016 - Batas.org

Supreme Court of the Philippines

[50]

People v. Gonzalez, Jr., supra note 45, at 917; People v.

Manalo, G.R. No. L-55177, February 27, 1987, 148 SCRA 98,
108.
[51]

People v. Gonzalez, Jr., supra note 45.

533 Phil. 169

FIRST DIVISION

[52]

People v. Caratao, supra note 45, at 607; People v.

Gonzalez, Jr., supra note 45; People v. Cabodoc, supra note
45, at 510-511; People v. Malabago, supra note 45.
[53]

See People v. Ulep, supra note 31, at 88.

[54]

People v. Caratao, supra note 45, at 608; People v.

Fernandez, 434 Phil. 224, 239 (2002).

G.R. NO. 165483, September 12, 2006

RUJJERIC Z. PALAGANAS,[1] PETITIONER, VS. PEOPLE OF THE
PHILIPPINES, RESPONDENT.
DECISION

[55]

See People v. Tabion, G.R. No. L-32629, October 23, 1979,

93 SCRA 566, 572; People v. Madrid, 88 Phil. 1, 15 (1951);
Antonio L. Gregorio, Fundamentals of Criminal Law Review

CHICO-NAZARIO, J.:

For what is a man, what has he got?

If not himself, then he has naught.
To say the things he truly feels;
And not the words of one who kneels.
The record shows I took the blows And did it my way!
The song evokes the bitterest passions. This is not the first
time the song "My Way"[2] has triggered violent behavior
resulting in people coming to blows. In the case at bar, the
few lines of the song depicted what came to pass when the
victims and the aggressors tried to outdo each other in their
rendition of the song.
In this Petition for Review on Certiorari[3] under Rule 45 of the
Revised Rules of Court, petitioner Rujjeric Z. Palaganas prays
for the reversal of the Decision of the Court of Appeals in CAG.R. CR No. 22689 dated 30 September 2004,[4] affirming
with modification the Decision of the Regional Trial Court
(RTC), Branch 46, of Urdaneta, Pangasinan, in Criminal Cases
No. U-9608, U-9609, and U-9610 and U-9634, dated 28
October 1998,[5] finding petitioner guilty beyond reasonable
doubt of the crime of Homicide under Article 249 of the
Revised Penal Code, and two (2) counts of Frustrated
Homicide under Article 249 in relation to Articles 6 and 50 of
the same Code.
On 21 April 1998, petitioner and his older brother, Ferdinand
Z. Palaganas (Ferdinand), were charged under four (4)
separate Informations[6] for two (2) counts of Frustrated
Murder, one (1) count of Murder, and one (1) count for
Violation of COMELEC Resolution No. 2958[7] relative to Article
22, Section 261, of the Omnibus Election Code, [8] allegedly
committed as follows:
CRIMINAL CASE NO. U-9608
That on or about January 16, 1998, in the evening at
Poblacion, Manaoag, Pangasinan and within the jurisdiction of
this Honorable Court, the above-named accused armed with
an unlicensed firearm, with intent to kill, treachery and
evident premeditation, conspiring together, did then and
there willfully, unlawfully and feloniously shoot SERVILLANO
FERRER, JR. y Juanatas, inflicting upon him "gunshot wound

penetrating perforating abdomen, urinary bladder, rectum

bullet sacral region," the accused having thus performed all
the acts of execution which would have produced the crime
of Murder as a consequence, but which nevertheless, did not
produce it by reason of the causes independent of the will of
the accused and that is due to the timely medical assistance
rendered to said Servillano J. Ferrer, Jr. which prevented his
death, to his damage and prejudice.
CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of
the Revised Penal Code, as amended.
CRIMINAL CASE NO. U-9609
That on or about January 16, 1998, in the evening at
Poblacion, Manaoag, Pangasinan and within the jurisdiction of
this Honorable Court, the above-named accused armed with
an unlicensed firearm, with intent to kill, treachery and
evident premeditation, conspiring together, did then and
there willfully, unlawfully and feloniously shoot MICHAEL
FERRER alias "Boying Ferrer", inflicting upon him gunshot
wound on the right shoulder, the accused having thus
performed all the acts of execution which would have
produced the crime of murder as a consequence, but which
nevertheless, did not produce it by reason of the causes
independent of the will of the accused and that is due to the
medical assistance rendered to said Michael "Boying" Ferrer
which prevented his death, to his damage and prejudice.
CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of
the Revised Penal Code, as amended.
CRIMINAL CASE NO. U-9610
That on or about January 16, 1998, in the evening at
Poblacion, Manaoag, Pangasinan and within the jurisdiction of
this Honorable Court, the above-named accused armed with
an unlicensed firearm, with intent to kill, treachery and
evident premeditation, conspiring together, did then and
there willfully, unlawfully and feloniously shoot MELTON
FERRER alias "TONY FERRER", inflicting upon him mortal
gunshot wounds in the head and right thigh which caused the
instantaneous death of said Melton "Tony" Ferrer, to the
damage and prejudice of his heirs.

CONTRARY to Art. 248 of the Revised Penal Code, as

amended by R.A. 7659.
CRIMINAL CASE NO. U-9634
That on or about January 16, 1998 which is within the
election period at Poblacion, Manaoag, Pangasinan, and
within the jurisdiction of this Honorable Court, the abovenamed accused did then and there willfully, unlawfully and
feloniously bear and carry one (1) caliber .38 without first
securing the necessary permit/license to do the same.
CONTRARY to COMELEC RES. 2958 in relation with SEC. 261
of the OMNIBUS ELECTION CODE, as amended. [9]
(Underscoring supplied.)
When arraigned on separate dates,[10] petitioner and
Ferdinand entered separate pleas of "Not Guilty." Upon
motion of Ferdinand, [11] the four cases were consolidated and
were assigned to Branch 46 of the RTC in Urdaneta,
Pangasinan.[12]
The factual antecedents as viewed by the prosecution, are
summarized in the Comment dated 18 April 2005 of the
Office of the Solicitor General,[13] to wit:
On January 16, 1998, around 8:00 in the evening, brothers
Servillano, [Melton] and Michael, all surnamed Ferrer were
having a drinking spree in their house because [Melton], who
was already living in San Fernando, La Union, visited his
three brothers and mother at their house in Sitio Baloking,
Poblacion, Manaoag, Pangasinan. At 9:45 in the evening, the
three brothers decided to proceed to Tidbits Videoke bar
located at the corner of Malvar and Rizal Streets, Poblacion,
Manaoag to continue their drinking spree and to sing. Inside
the karaoke bar, they were having a good time, singing and
drinking beer.
Thereafter, at 10:30 in the evening, Jaime Palaganas arrived
together with Ferdinand Palaganas and Virgilio Bautista. At
that time, only the Ferrer brothers were the customers in the
bar. The two groups occupied separate tables. Later, when
Jaime Palaganas was singing, [Melton] Ferrer sang along with
him as he was familiar with the song [My Way]. Jaime

however, resented this and went near the table of the Ferrer
brothers and said in Pangasinan dialect "As if you are tough
guys." Jaime further said "You are already insulting me in
that way." Then, Jaime struck Servillano Ferrer with the
microphone, hitting the back of his head. A rumble ensued
between the Ferrer brothers on the one hand, and the
Palaganases, on the other hand. Virgilio Bautista did not join
the fray as he left the place. During the rumble, Ferdinand
went out of the bar. He was however pursued by Michael.
When Servillano saw Michael, he also went out and told the
latter not to follow Ferdinand. Servillano and Michael then
went back inside the bar and continued their fight with Jaime.
Meantime, Edith Palaganas, sister of Jaime and the owner of
the bar, arrived and pacified them. Servillano noticed that his
wristwatch was missing. Unable to locate the watch inside
the bar, the Ferrer brothers went outside. They saw
Ferdinand about eight (8) meters away standing at Rizal
Street. Ferdinand was pointing at them and said to his
companion, later identified as petitioner [Rujjeric] Palaganas,
"Oraratan paltog mo lara", meaning "They are the ones,
shoot them." Petitioner then shot them hitting Servillano first
at the left side of the abdomen, causing him to fall on the
ground, and followed by [Melton] who also fell to the ground.
When Servillano noticed that [Melton] was no longer moving,
he told Michael "Bato, bato." Michael picked up some stones
and threw them at petitioner and Ferdinand. The latter then
left the place. Afterwards, the police officers came and the
Ferrer brothers were brought to the Manaoag Hospital and
later to Villaflor Hospital in Dagupan. Servillano later
discovered that [Melton] was fatally hit in the head while
Michael was hit in the right shoulder.
On the other hand, the defense, in its Appellant's Brief dated
3 December 1999,[14] asserted the following set of facts:
On January 16, 1998, at around 11:00 in the evening, after a
drinking session at their house, the brothers Melton (Tony),
Servillano (Junior) and Michael (Boying), all surnamed Ferrer,
occupied a table inside the Tidbits Caf and Videoke Bar and
started drinking and singing. About thirty minutes later,
Jaime Palaganas along with his nephew Ferdinand (Apo) and
friend Virgilio Bautista arrived at the bar and occupied a table
near that of the Ferrers'.

After the Ferrers' turn in singing, the microphone was handed

over to Jaime Palaganas, who then started to sing. On his
third song [My Way], Jaime was joined in his singing by Tony
Ferrer, who sang loudly and in an obviously mocking manner.
This infuriated Jaime, who then accosted Tony, saying, "You
are already insulting us." The statement resulted in a free for
all fight between the Ferrers', on one hand, and the
Palaganases on the other. Jaime was mauled and Ferdinand,
was hit on the face and was chased outside of the bar by
Junior and Boying Ferrer.
Ferdinand then ran towards the house of the appellant
Rujjeric Palaganas, his brother, and sought the help of the
latter. Rujjeric, stirred from his sleep by his brother's shouts,
went out of his house and, noticing that the van of his uncle
was in front of the Tidbits Videoke Bar, proceeded to that
place. Before reaching the bar, however, he was suddenly
stoned by the Ferrer brothers and was hit on different parts
of his body, so he turned around and struggled to run
towards his house. He then met his brother, Ferdinand, going
towards the bar, so he tugged him and urged him to run
towards the opposite direction as the Ferrer brothers
continued pelting them with large stones. Rujjeric then
noticed that Ferdinand was carrying a gun, and, on instinct,
grabbed the gun from the latter, faced the Ferrer brothers
and fired one shot in the air to force the brothers to retreat.
Much to his surprise, however, the Ferrer brothers continued
throwing stones and when (sic) the appellant was again hit
several times. Unable to bear the pain, he closed his eyes
and pulled the trigger.
On 28 October 1998, the trial court rendered its Decision
finding petitioner guilty only of the crime of Homicide and
two (2) counts of Frustrated Homicide.[15] He was, however,
acquitted of the charge of Violation of COMELEC Resolution
No. 2958 in relation to Section 261 of the Omnibus Election
Code.[16] On the other hand, Ferdinand was acquitted of all
the charges against him.[17]
In holding that petitioner is liable for the crimes of Homicide
and Frustrated Homicide but not for Murder and Frustrated
Murder, the trial court explained that there was no

conspiracy between petitioner and Ferdinand in killing Melton

and wounding Servillano and Michael. [18] According to the
trial court, the mere fact that Ferdinand "pointed" to where
the Ferrer brothers were and uttered to petitioner "Araratan,
paltog mo lara!" (They are the ones, shoot them!), does not
in itself connote common design or unity of purpose to kill. It
also took note of the fact that petitioner was never a
participant in the rumble inside the Tidbits Cafe Videoke Bar
(videoke bar) on the night of 16 January 1998. He was merely
called by Ferdinand to rescue their uncle, Jaime, who was
being assaulted by the Ferrer brothers. It further stated that
the shooting was instantaneous and without any prior plan or
agreement with Ferdinand to execute the same. It found that
petitioner is solely liable for killing Melton and for wounding
Servillano and Michael, and that Ferdinand is not criminally
responsible for the act of petitioner.
Further, it declared that there was no treachery that will
qualify the crimes as murder and frustrated murder since the
Ferrer brothers were given the chance to defend themselves
during the shooting incident by stoning the petitioner and
Ferdinand.[19] It reasoned that the sudden and unexpected
attack, without the slightest provocation on the part of the
victims, was absent. In addition, it ratiocinated that there
was no evident premeditation as there was no sufficient
period of time that lapsed from the point where Ferdinand
called the petitioner for help up to the point of the shooting
of the Ferrer brothers.[20] Petitioner was sleeping at his house
at the time he heard Ferdinand calling him for help.
Immediately, petitioner, still clad in pajama and sleeveless
shirt, went out of his room to meet Ferdinand. Thereafter,
both petitioner and Ferdinand went to the videoke bar where
they met the Ferrer brothers and, shortly afterwards, the
shooting ensued. In other words, according to the trial court,
the sequence of the events are so fast that it is improbable
for the petitioner to have ample time and opportunity to then
plan and organize the shooting.
Corollarily, it also stated that petitioner cannot successfully
invoke self-defense since there was no actual or imminent
danger to his life at the time he and Ferdinand saw the Ferrer
brothers outside the videoke bar. [21] It noted that when

petitioner and Ferdinand saw the Ferrer brothers outside the

videoke bar, the latter were not carrying any weapon.
Petitioner then was free to run or take cover when the Ferrer
brothers started pelting them with stones. Petitioner,
however, opted to shoot the Ferrer brothers. It also stated
that the use by petitioner of a gun was not a reasonable
means to prevent the attack of the Ferrer brothers since the
latter were only equipped with stones, and that the gun was
deadlier compared to stones. Moreover, it also found that
petitioner used an unlicensed firearm in shooting the Ferrer
brothers.[22]
As regards the Violation of COMELEC Resolution No. 2958, in
relation to Section 261 of the Omnibus Election Code, the
trial court acquitted the petitioner of the offense as his use
and possession of a gun was not for the purpose of disrupting
election activities.[23] In conclusion, the trial court held:
WHEREFORE, JUDGMENT is hereby rendered as follows:
1.
Under CRIM. CASE NO. U-9608, [Rujjeric] PALAGANAS is
hereby CONVICTED beyond reasonable doubt of the crime of
FRUSTRATED HOMICIDE (Not Frustrated Murder), with the use
of an unlicensed firearm, the Court sentences him to suffer
the penalty of Prision Mayor in its maximum period or 12
years of imprisonment and to pay Servillano Ferrer the sum
of P163,569.90 for his medical expenses and P50,000.00 for
exemplary damages;
Ferdinand Palaganas is ACQUITTED for failure of the
prosecution to prove conspiracy and likewise, for failure to
prove the guilt of Ferdinand Palaganas beyond reasonable
doubt.
2.
Under CRIM. CASE NO. U-9609, [Rujjeric] PALAGANAS is
hereby CONVICTED beyond reasonable doubt of the crime of
FRUSTRATED HOMICIDE (Not Frustrated Murder), with the use
of an unlicensed firearm, the Court sentences him to suffer
the penalty of Prision Mayor in its maximum period or 12
years of imprisonment; and to pay Michael Ferrer the sum of
P2,259.35 for his medical expenses and P50,000.00 for
exemplary damages;
Ferdinand Palaganas is ACQUITTED for failure of the
prosecution to prove conspiracy and likewise, for failure to

prove the guilt of Ferdinand Palaganas beyond reasonable

doubt.
3.
Under CRIM. CASE NO. U-9609, [Rujjeric] PALAGANAS is
hereby CONVICTED beyond reasonable doubt of the crime of
FRUSTRATED HOMICIDE (Not Frustrated Murder), with the use
of an unlicensed firearm, the Court sentences him to suffer
the penalty of Prision Mayor in its maximum period or 12
years of imprisonment; and to pay Michael Ferrer the sum of
P2,259.35 for his medical expenses and P50,000.00 for
exemplary damages;
Ferdinand Palaganas is ACQUITTED for failure of the
prosecution to prove conspiracy and likewise, for failure to
prove the guilt of Ferdinand Palaganas beyond reasonable
doubt.
Ordering accused [Rujjeric] Palaganas to pay Mrs. Elena
Ferrer, the mother of the Ferrer brothers, the amount of
P100,000.00 as attorney's fees in CRIM. CASES NOS. U-9608,
U-9609, U-9610.
4.
Under CRIM. CASE NO. U-9634, for failure of the
prosecution to prove the guilt of [Rujjeric] Palaganas beyond
reasonable doubt of the crime of Violation of COMELEC
Resolution No. 2958 in relation with Section 261 of the
Omnibus Election Code, the Court ACQUITS [RUJJERIC]
PALAGANAS.[24]
Aggrieved, the petitioner appealed the foregoing Decision of
the RTC dated 28 October 1998, before the Court of Appeals.
In its Decision dated 30 September 2004, the Court of
Appeals affirmed with modifications the assailed RTC
Decision. In modifying the Decision of the trial court, the
appellate court held that the mitigating circumstance of
voluntary surrender under Article 13, No. 7, of the Revised
Penal Code should be appreciated in favor of petitioner since
the latter, accompanied by his counsel, voluntarily appeared
before the trial court, even prior to its issuance of a warrant
of arrest against him.[25] It also stated that the Indeterminate
Sentence Law should be applied in imposing the penalty
upon the petitioner.[26] The dispositive portion of the Court of
Appeals' Decision reads:
WHEREFORE, the judgment of conviction is hereby

AFFIRMED, subject to the MODIFICATION that the penalty to

be imposed for the crimes which the appellant committed are
as follows:
(1) For Homicide (under Criminal Case No. U-9610), the
appellant is ordered to suffer imprisonment of ten (10) years
of prision mayor as minimum to seventeen (17) years and
four (4) months of reclusion temporal as maximum. Appellant
is also ordered to pay the heirs of Melton Ferrer civil
indemnity in the amount of P50,000.00, moral damages in
the amount of P50,000.00 without need of proof and actual
damages in the amount of P43,556.00.
(2) For Frustrated Homicide (under Criminal Case No. U9609), the appellant is hereby ordered to suffer
imprisonment of four (4) years and two (2) months of prision
correcional as minimum to ten (10) years of prision mayor as
maximum. Appellant is also ordered to pay Michael Ferrer
actual damages in the amount of P2,259.35 and moral
damages in the amount of P30,000.00.
(3) For Frustrated Homicide (under Criminal Case No. U9608), the appellant is hereby penalized with imprisonment
of four (4) years and two (2) months of prision correcional as
minimum to ten (10) years of prision mayor as maximum.
Appellant is also ordered to pay Servillano Ferrer actual
damages in the amount of P163,569.90 and moral damages
in the amount of P30,000.00. [27]
On 16 November 2004, petitioner lodged the instant Petition
for Review before this Court on the basis of the following
arguments:
I.
THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING
THE JUDGMENT OF CONVICTION OF THE TRIAL COURT.
II.
THE HONORABLE COURT OF APPEALS ERRED IN NOT
ACQUITTING ACCUSED-APPELLANT ON THE GROUND OF
LAWFUL SELF- DEFENSE.[28]
Anent the first issue, petitioner argued that all the elements
of a valid self-defense are present in the instant case and,
thus, his acquittal on all the charges is proper; that when he

fired his gun on that fateful night, he was then a victim of an

unlawful aggression perpetrated by the Ferrer brothers; that
he, in fact, sustained an injury in his left leg and left shoulder
caused by the stones thrown by the Ferrer brothers; that the
appellate court failed to consider a material evidence
described as "Exhibit O"; that "Exhibit O" should have been
given due weight since it shows that there was slug
embedded on the sawali wall near the sign "Tidbits Caf and
Videoke Bar"; that the height from which the slug was taken
was about seven feet from the ground; that if it was true that
petitioner and Ferdinand were waiting for the Ferrer brothers
outside the videoke bar in order to shoot them, then the
trajectory of the bullets would have been either straight or
downward and not upward considering that the petitioner
and the Ferrer brothers were about the same height (5'6"5'8"); that the slug found on the wall was, in fact, the
"warning shot" fired by the petitioner; and, that if this exhibit
was properly appreciated by the trial court, petitioner would
be acquitted of all the charges. [29]
Moreover, petitioner contended that the warning shot proved
that that the Ferrer brothers were the unlawful aggressors
since there would have been no occasion for the petitioner to
fire a warning shot if the Ferrer brothers did not stone him;
that the testimony of Michael in the trial court proved that it
was the Ferrer brothers who provoked petitioner to shoot
them; and that the Ferrer brothers pelted them with stones
even after the "warning shot."[30]
Petitioner's contention must fail.
Article 11, paragraph (1), of the Revised Penal Code provides
for the elements and/or requisites in order that a plea of selfdefense may be validly considered in absolving a person
from criminal liability, viz:
ART. 11. Justifying circumstances. - The following do not incur
any criminal liability:
1.
Anyone who acts in defense of his person or rights,
provided that the following circumstances concur;
First. Unlawful aggression;

Second. Reasonable necessity of the means employed to

prevent or repel it;
Third. Lack of sufficient provocation on the part of the person
defending himself. x x x.
As an element of self-defense, unlawful aggression refers to
an assault or attack, or a threat thereof in an imminent and
immediate manner, which places the defendant's life in
actual peril.[31] It is an act positively strong showing the
wrongful intent of the aggressor and not merely a
threatening or intimidating attitude. [32] It is also described as
a sudden and unprovoked attack of immediate and imminent
kind to the life, safety or rights of the person attacked. [33]
There is an unlawful aggression on the part of the victim
when he puts in actual or imminent peril the life, limb, or
right of the person invoking self-defense. There must be
actual physical force or actual use of weapon. [34] In order to
constitute unlawful aggression, the person attacked must be
confronted by a real threat on his life and limb; and the peril
sought to be avoided is imminent and actual, not merely
imaginary. [35]
In the case at bar, it is clear that there was no unlawful
aggression on the part of the Ferrer brothers that justified the
act of petitioner in shooting them. There were no actual or
imminent danger to the lives of petitioner and Ferdinand
when they proceeded and arrived at the videoke bar and saw
thereat the Ferrer brothers. It appears that the Ferrer
brothers then were merely standing outside the videoke bar
and were not carrying any weapon when the petitioner
arrived with his brother Ferdinand and started firing his gun.
[36]

Assuming, arguendo, that the Ferrer brothers had provoked

the petitioner to shoot them by pelting the latter with stones,
the shooting of the Ferrer brothers is still unjustified. When
the Ferrer brothers started throwing stones, petitioner was
not in a state of actual or imminent danger considering the
wide distance (4-5 meters) of the latter from the location of
the former. [37] Petitioner was not cornered nor trapped in a
specific area such that he had no way out, nor was his back

against the wall. He was still capable of avoiding the stones

by running away or by taking cover. He could have also
called or proceeded to the proper authorities for help. Indeed,
petitioner had several options in avoiding dangers to his life
other than confronting the Ferrer brothers with a gun.
The fact that petitioner sustained injuries in his left leg and
left shoulder, allegedly caused by the stones thrown by the
Ferrer brothers, does not signify that he was a victim of
unlawful aggression or that he acted in self-defense. [38] There
is no evidence to show that his wounds were so serious and
severe. The superficiality of the injuries sustained by the
petitioner is no indication that his life and limb were in actual
peril.[39]
Petitioner's assertion that, despite the fact that he fired a
warning shot, the Ferrer brothers continued to pelt him with
stones,[40] will not matter exonerate him from criminal
liability. Firing a warning shot was not the last and only option
he had in order to avoid the stones thrown by the Ferrer
brothers. As stated earlier, he could have run away, or taken
cover, or proceeded to the proper authorities for help.
Petitioner, however, opted to shoot the Ferrer brothers.
It is significant to note that the shooting resulted in the death
of Melton, and wounding of Servillano and Michael. With
regard to Melton, a bullet hit his right thigh, and another
bullet hit his head which caused his instant death. [41] As
regards Servillano, a bullet penetrated two of his vital organs,
namely, the large intestine and urinary bladder. [42] He
underwent two (2) surgeries in order to survive and fully
recover.[43] Michael, on the other hand, sustained a gunshot
wound on the right shoulder. [44] It must also be noted that the
Ferrer brothers were shot near the videoke bar, which
contradict petitioner's claim he was chased by the Ferrer
brothers. Given the foregoing circumstances, it is difficult to
believe that the Ferrer brothers were the unlawful
aggressors. As correctly observed by the prosecution, if the
petitioner shot the Ferrer brothers just to defend himself, it
defies reason why he had to shoot the victims at the vital
portions of their body, which even led to the death of Melton
who was shot at his head.[45] It is an oft-repeated rule that the

nature and number of wounds inflicted by the accused are

constantly and unremittingly considered important indicia to
disprove a plea of self- defense.[46]
Let it not be forgotten that unlawful aggression is a
primordial element in self-defense.[47] It is an essential and
indispensable requisite, for without unlawful aggression on
the part of the victim, there can be, in a jural sense, no
complete or incomplete self-defense.[48] Without unlawful
aggression, self-defense will not have a leg to stand on and
this justifying circumstance cannot and will not be
appreciated, even if the other elements are present. [49] To our
mind, unlawful aggression, as an element of self-defense, is
wanting in the instant case.
The second element of self-defense requires that the means
employed by the person defending himself must be
reasonably necessary to prevent or repel the unlawful
aggression of the victim. The reasonableness of the means
employed may take into account the weapons, the physical
condition of the parties and other circumstances showing
that there is a rational equivalence between the means of
attack and the defense.[50] In the case at bar, the petitioner's
act of shooting the Ferrer brothers was not a reasonable and
necessary means of repelling the aggression allegedly
initiated by the Ferrer brothers. As aptly stated by the trial
court, petitioner's gun was far deadlier compared to the
stones thrown by the Ferrer brothers.[51]

defense to escape criminal liability, this Court consistently

held that where an accused admits killing the victim but
invokes self-defense, it is incumbent upon the accused to
prove by clear and convincing evidence that he acted in selfdefense.[52] As the burden of evidence is shifted on the
accused to prove all the elements of self-defense, he must
rely on the strength of his own evidence and not on the
weakness of the prosecution.[53]
As we have already found, there was no unlawful aggression
on the part of the Ferrer brothers which justified the act of
petitioner in shooting them. We also ruled that even if the
Ferrer brothers provoked the petitioner to shoot them, the
latter's use of a gun was not a reasonable means of repelling
the act of the Ferrer brothers in throwing stones. It must also
be emphasized at this point that both the trial court and the
appellate court found that petitioner failed to established by
clear and convincing evidence his plea of self-defense. In this
regard, it is settled that when the trial court's findings have
been affirmed by the appellate court, said findings are
generally conclusive and binding upon this Court. [54] In the
present case, we find no compelling reason to deviate from
their findings. Verily, petitioner failed to prove by clear and
convincing evidence that he is entitled to an acquittal on the
ground of lawful self-defense.

Petitioner's argument is bereft of merit.

On another point, while we agree with the trial court and the
Court of Appeals that petitioner is guilty of the crime of
Homicide for the death of Melton in Criminal Case No. U9610, and Frustrated Homicide for the serious injuries
sustained by Servillano in Criminal Case No. U-9608, we do
not, however, concur in their ruling that petitioner is guilty of
the crime of Frustrated Homicide as regards to Michael in
Criminal Case No. U-9609. We hold that petitioner therein is
guilty only of the crime of Attempted Homicide.
Article 6 of the Revised Penal Code states and defines the
stages of a felony in the following manner:
ART. 6. Consummated, frustrated, and attempted felonies.
- Consummated felonies, as well as those which are
frustrated and attempted, are punishable.

In resolving criminal cases where the accused invokes self-

A felony is consummated when all the elements necessary

Moreover, we stated earlier that when the Ferrer brothers

allegedly threw stones at the petitioner, the latter had other
less harmful options than to shoot the Ferrer brothers. Such
act failed to pass the test of reasonableness of the means
employed in preventing or repelling an unlawful aggression.
With regard to the second issue, petitioner asserts that the
Court of Appeals erred in not acquitting him on the ground of
lawful self-defense.

for the for its execution and accomplishment are present;

and it is frustrated when the offender performs all the acts
of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by
reason or causes independent of the will of the perpetrator.
There is an attempt when the offender commences the
commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the
felony by reason of some cause or accident other than his
own spontaneous desistance (italics supplied).
Based on the foregoing provision, the distinctions between
frustrated and attempted felony are summarized as follows:
1.) In frustrated felony, the offender has performed all the
acts of execution which should produce the felony as a
consequence; whereas in attempted felony, the offender
merely commences the commission of a felony directly by
overt acts and does not perform all the acts of execution.
2.) In frustrated felony, the reason for the nonaccomplishment of the crime is some cause independent of
the will of the perpetrator; on the other hand, in attempted
felony, the reason for the non- fulfillment of the crime is a
cause or accident other than the offender's own spontaneous
desistance.
In addition to these distinctions, we have ruled in several
cases that when the accused intended to kill his victim, as
manifested by his use of a deadly weapon in his assault, and
his victim sustained fatal or mortal wound/s but did not die
because of timely medical assistance, the crime committed is
frustrated murder or frustrated homicide depending on
whether or not any of the qualifying circumstances under
Article 249 of the Revised Penal Code are present. [55]
However, if the wound/s sustained by the victim in such a
case were not fatal or mortal, then the crime committed is
only attempted murder or attempted homicide.[56] If there
was no intent to kill on the part of the accused and the
wound/s sustained by the victim were not fatal, the crime
committed may be serious, less serious or slight physical
injury.[57]
Based on the medical certificate of Michael, as well as the

testimony of the physician who diagnosed and treated

Michael, the latter was admitted and treated at the Dagupan
Doctors-Villaflor Memorial Hospital for a single gunshot
wound in his right shoulder caused by the shooting of
petitioner.[58] It was also stated in his medical certificate that
he was discharged on the same day he was admitted and
that the treatment duration for such wound would be for six
to eight days only.[59] Given these set of undisputed facts, it is
clear that the gunshot wound sustained by Michael in his
right shoulder was not fatal or mortal since the treatment
period for his wound was short and he was discharged from
the hospital on the same day he was admitted therein.
Therefore, petitioner is liable only for the crime of attempted
homicide as regards Michael in Criminal Case No. U-9609.
With regard to the appreciation of the aggravating
circumstance of use of an unlicensed firearm, we agree with
the trial court and the appellate court that the same must be
applied against petitioner in the instant case since the same
was alleged in the informations filed against him before the
RTC and proven during the trial. However, such must be
considered as a special aggravating circumstance, and not a
generic aggravating circumstance.
Generic aggravating circumstances are those that generally
apply to all crimes such as those mentioned in Article 14,
paragraphs No. 1, 2, 3, 4, 5, 6, 9, 10, 14, 18, 19 and 20, of
the Revised Penal Code. It has the effect of increasing the
penalty for the crime to its maximum period, but it cannot
increase the same to the next higher degree. It must always
be alleged and charged in the information, and must be
proven during the trial in order to be appreciated. [60]
Moreover, it can be offset by an ordinary mitigating
circumstance.
On the other hand, special aggravating circumstances are
those which arise under special conditions to increase the
penalty for the offense to its maximum period, but the same
cannot increase the penalty to the next higher degree.
Examples are quasi-recidivism under Article 160 and complex
crimes under Article 48 of the Revised Penal Code. It does not
change the character of the offense charged. [61] It must

always be alleged and charged in the information, and must

be proven during the trial in order to be appreciated. [62]
Moreover, it cannot be offset by an ordinary mitigating
circumstance.
It is clear from the foregoing that the meaning and effect of
generic and special aggravating circumstances are exactly
the same except that in case of generic aggravating, the
same CAN be offset by an ordinary mitigating circumstance
whereas in the case of special aggravating circumstance, it
CANNOT be offset by an ordinary mitigating circumstance.
Aside from the aggravating circumstances abovementioned,
there is also an aggravating circumstance provided for under
Presidential Decree No. 1866,[63] as amended by Republic Act
No. 8294,[64] which is a special law. Its pertinent provision
states:
If homicide or murder is committed with the use of an
unlicensed firearm, such use of an unlicensed firearm shall
be considered as an aggravating circumstance.
In interpreting the same provision, the trial court reasoned
that such provision is "silent as to whether it is generic or
qualifying."[65] Thus, it ruled that "when the law is silent, the
same must be interpreted in favor of the accused." [66] Since a
generic aggravating circumstance is more favorable to
petitioner compared to a qualifying aggravating
circumstance, as the latter changes the nature of the crime
and increase the penalty thereof by degrees, the trial court
proceeded to declare that the use of an unlicensed firearm by
the petitioner is to be considered only as a generic
aggravating circumstance.[67] This interpretation is erroneous
since we already held in several cases that with the passage
of Republic Act. No. 8294 on 6 June 1997, the use of an
unlicensed firearm in murder or homicide is now considered
as a SPECIAL aggravating circumstance and not a generic
aggravating circumstance.[68] Republic Act No. 8294 applies
to the instant case since it took effect before the commission
of the crimes in 21 April 1998. Therefore, the use of an
unlicensed firearm by the petitioner in the instant case
should be designated and appreciated as a SPECIAL
aggravating circumstance and not merely a generic
aggravating circumstance.

As was previously established, a special aggravating

circumstance cannot be offset by an ordinary mitigating
circumstance. Voluntary surrender of petitioner in this case is
merely an ordinary mitigating circumstance. Thus, it cannot
offset the special aggravating circumstance of use of
unlicensed firearm. In accordance with Article 64, paragraph
3 of the Revised Penal Code, the penalty imposable on
petitioner should be in its maximum period. [69]
As regards the civil liability of petitioner, we deem it
necessary to modify the award of damages given by both
courts.
In Criminal Case No. U-9610 for Homicide, we agree with
both courts that the proper amount of civil indemnity is
P50,000.00, and that the proper amount for moral damages
is P50,000.00 pursuant to prevailing jurisprudence. [70]
However, based on the receipts for hospital, medicine,
funeral and burial expenses on record, and upon computation
of the same, the proper amount of actual damages should be
P42,374.18, instead of P43,556.00. Actual damages for loss
of earning capacity cannot be awarded in this case since
there was no documentary evidence to substantiate the
same.[71] Although there may be exceptions to this rule, [72]
none is availing in the present case. Nevertheless, since loss
was actually established in this case, temperate damages in
the amount of P25,000.00 may be awarded to the heirs of
Melton Ferrer. Under Article 2224 of the New Civil Code,
temperate or moderate damages may be recovered when
the court finds that some pecuniary loss was suffered but its
amount cannot be proved with certainty. Moreover,
exemplary damages should be awarded in this case since the
presence of special aggravating circumstance of use of
unlicensed firearm was already established. [73] Based on
prevailing jurisprudence, the award of exemplary damages
for homicide is P25,000.00.[74]
In Criminal Cases No. U-9608 and U-9609, we agree with both
courts as to the award of actual damages and its
corresponding amount since the same is supported by
documentary proof therein. The award of moral damages is

also consistent with prevailing jurisprudence. However,

exemplary damages should be awarded in this case since the
presence of special aggravating circumstance of use of
unlicensed firearm was already established. Based on
prevailing jurisprudence, the award of exemplary damages
for both the attempted and frustrated homicide shall be
P25,000.00 for each.
WHEREFORE, premises considered, the decision of the Court
of Appeals dated 30 September 2004 is hereby AFFIRMED
with the following MODIFICATIONS:

aggravating circumstance of the use of an unlicensed firearm

and applying the Indeterminate Sentence Law, the penalty
now is twelve (12) years of prision mayor as minimum period
to twenty (20) years of reclusion temporal as maximum
period. As regards the civil liability of petitioner, the latter is
hereby ordered to pay Melton Ferrer exemplary damages in
the amount of P25,000.00 in addition to the actual damages
and moral damages awarded by the Court of Appeals. The
actual damages likewise awarded by the Court of Appeals is
hereby reduced to P42,374.18.
SO ORDERED.

(1) In Criminal Case No. U-9609, the petitioner is found guilty

of the crime of attempted homicide. The penalty imposable
on the petitioner is prision correccional under Article 51 of
the Revised Penal Code.[75] There being a special aggravating
circumstance of the use of an unlicensed firearm and
applying the Indeterminate Sentence of Law, the penalty now
becomes four (4) years and two (2) months of arresto mayor
as minimum period to six (6) years of prision correccional as
maximum period. As regards the civil liability of petitioner,
the latter is hereby ordered to pay Michael Ferrer exemplary
damages in the amount of P25,000.00 in addition to the
actual damages and moral damages awarded by the Court of
Appeals.
(2) In Criminal Case No. U-9608, the penalty imposable on
the petitioner for the frustrated homicide is prision mayor
under Article 50 of the Revised Penal Code. [76] There being a
special aggravating circumstance of the use of an unlicensed
firearm and applying the Indeterminate Sentence Law, the
penalty now becomes six (6) years of prision correccional as
minimum period to twelve (12) years of prision mayor as
maximum period. As regards the civil liability of petitioner,
the latter is hereby ordered to pay Servillano Ferrer
exemplary damages in the amount of P25,000.00 in addition
to the actual damages and moral damages awarded by the
Court of Appeals.
(3) In Criminal Case No. U-9610, the penalty imposable on
petitioner for the homicide is reclusion temporal under Article
249 of the Revised Penal Code.[77] There being a special

Panganiban. C. J., (Chairperson), Ynares-Santiago, AustriaMartinez, and Callejo, Sr., JJ. concur.
[1]

Also referred to as Rojeric Palaganas y Zarate in the

Informations, and Decisions of the trial court and the Court of
Appeals.
[2]

Music by Paul Anka; Sung and popularized by Frank

Sinatra.
[3]

Rollo, pp. 9-23.

[4]

Penned by Associate Justice Vicente S.E. Veloso with

Associate Justices Roberto A. Barrios and Amelita G.
Tolentino, concurring; rollo, pp. 24-43.
[5]

Penned by Judge Modesto C. Juanson; id. at 44-75.

[6]

Records, Volume I, pp. 1-2 and 10, Volume II, pp. 1-2 and
Volume III, p.1.
[7]

RULES AND REGULATIONS ON: (A) BEARING, CARRYING OR

TRANSPORTING FIREARMS OR OTHER DEADLY WEAPONS; (B)
SECURITY PERSONNEL OR BODYGUARDS; (C) BEARING ARMS
BY ANY MEMBER OF SECURITY OR POLICE ORGANIZATION OF
GOVERNMENT AND OTHERS; (D) ORGANIZATION OR
MAINTENANCE OF REACTION FORCES DURING THE ELECTION
PERIOD IN CONNECTION WITH THE MAY 11, 1998 ELECTIONS.

(Promulgated on December 23, 1997).

[20]

Id. at pp. 69-70.

[21]

Id. at pp. 70-71.

[22]

Id. at 71-72.

[23]

Id. at 72.

[24]

Id. at 73-75.

[25]

Id. at 39.

[26]

Id. at 39-41.

[27]

Id. at 41-42.

[28]

Id. at 17.

[29]

Id. at 17-18.

[30]

Id. at 18-19.

[31]

People v. Alconga, 78 Phil. 366, 374 (1947).

People v. Arizala, 375 Phil. 666, 675 (1999).

[8]

Omnibus Election Code of the Philippines (December 3,

1985), Article XXII - ELECTION OFFENSES, Sec. 261.
Prohibited Acts. - par. (p): Deadly weapons - Any person who
carries any deadly weapon in the polling place and within a
radius of one hundred meters thereof during the days and
hours fixed by law for the registration of voters in the polling
place, voting, counting of votes, or preparation of the
election returns. However, in cases of affray, turmoil, or
disorder, any peace officer or public officer authorized by the
Commission to supervise the election is entitled to carry
firearms or any other weapon for the purpose of preserving
order and enforcing the law x x x. Par. (q) Carrying firearms
outside residence or place of business. - Any person who,
although possessing a permit to carry firearms, carries any
firearms outside his residence or place of business during the
election period, unless authorized in writing by the
Commission x x x.
[9]

Rollo, pp. 45-47.

[10]

Records, Volume I, p. 43; Volume II, p. 39, and Volume III,

p. 41.
[11]

Id. at 35-36; id. at 43-44; and id. at 52.

[32]

[12]

Id. at 37 and id. at 45.

[33]

[13]

Rollo, pp. 101-119.

[14]

CA rollo, pp. 123-148.

People v. Bausing, G.R. No. 64965, 8 July 1991, 199 SCRA

355, 361.
[34]

People v. Crisostomo, 195 Phil. 162, 172 (1981).

[35]

Senoja v. People, G.R. No. 160341, 19 October 2004, 440

SCRA 695, 703.

[15]

Rollo, pp. 44-75.

[16]

Id.

[36]

Records, TSN, 2 July 1998, pp. 7-10.

[17]

Id.

[37]

CA rollo, p. 132.

[18]

Id. at 68-69.

[38]

[19]

Id. at p. 69.

Roca v. People., G.R. No. 114917, 29 January 2001, 350

SCRA 414, 423.

[39]

[40]

Id.
Rollo, pp. 18-19.

[41]

CA rollo, p. 40, records, TSN, 6 July 1998, pp. 8-12.

[42]

Id. at 41-42, records, TSN, 27 July 1998, pp. 2-8.

[43]

Id.

[44]

Id. at 42-43; records, TSN, 27 July 1998, pp. 2-8.

[45]

Rollo, p. 117.

[46]

Id.

[47]

People v. Cario, G.R. No. 123325, 31 March 1998, 288

SCRA 404, 417.
[48]

People v. Gallego, 453 Phil. 825, 839 (2003).

[49]

People v. Caratao, 451 Phil. 588, 602 (2002).

[50]

People v. Encomienda, 150-B Phil. 419, 433-434 (1972).

[51]

Rollo, p. 70.

[52]

Rendon v. People, G.R. No. 127089, 19 November 2004,

443 SCRA 142, 146.
[53]

People v. Castillano, Sr., 448 Phil. 482, 499-500 (2003).

[59]

Id.

[60]

Rule 110, Sections 8 and 9 of the Revised Rules on

Criminal Procedure.
[61]

People v. Agguihao, G.R. No. 104725, 10 March 1994, 231

SCRA 9, 21.
[62]

Supra note 59.

[63]

CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL

POSSESSION, MANUFACTURE, DEALING IN, ACQUISITION OR
DISPOSITION, OF FIREARMS, AMMUNITION OR EXPLOSIVES;
AND IMPOSING STIFFER PENALTIES FOR CERTAIN VIOLATIONS
THEREOF AND FOR RELEVANT PURPOSES.
[64]

AN ACT AMENDING THE PROVISIONS OF PRESIDENTIAL

DECREE NO. 1866, AS AMENDED, ENTITLED: CODIFYING THE
LAWS ON ILLEGAL/UNLAWFUL POSSESSION, MANUFACTURE,
DEALING IN, ACQUISITION OR DISPOSITION, OF FIREARMS,
AMMUNITION OR EXPLOSIVES; AND IMPOSING STIFFER
PENALTIES FOR CERTAIN VIOLATIONS THEREOF AND FOR
RELEVANT PURPOSES.( 6 June 1997)
[65]

Rollo, pp. 71-72.

[66]

Id. at 72.

[67]

Id.

[68]

People v. Castillo, G.R. No. 118912, 28 May 2004, 430

SCRA 40, 50.

People v. Lumilan, 380 Phil. 130, 145 (2000); People v.

Castillo, 382 Phil. 503 (2002); People v. Malinao, G.R. No.
128148, 16 February 2004, 423 SCRA 34, 51.

[55]

People v. Costales, 424 Phil. 321, 334 (2002).

[69]

[56]

People v. Castillo, 426 Phil. 752, 768 (2002).

[57]

People v. Asuela, 426 Phil. 428, 452 (2002).

[58]

Supra note 43.

[54]

ART. 64. Rules for the application of penalties which

contain three periods. - In cases in which the penalties
prescribed by law contain three periods, whether it be a
single divisible penalty or composed of three different
penalties, each one of which forms a period in accordance
with the provisions of articles 76 and 77, the courts shall
observe for the application of the penalty the following rules,

according to whether there are or are no mitigating or

aggravating circumstances:
xxx
3. When only an aggravating circumstance is present in the
commission of the act, they shall impose the penalty in its
maximum period.
[70]

People v. Bangcado, G.R. No. 132330, 28 November 2000,

346 SCRA 189, 213; People v. Panado, G.R. No. 133439, 26
December 2000, 348 SCRA 679, 691.
[71]

Nueva Espaa v. People, G.R. No. 163351, 21 June 2005,

460 SCRA 547, 556.
[72]

The rule is that documentary evidence should be

presented to substantiate a claim for loss of earning capacity.
By way of exception, damages therefore may be awarded
despite the absence of documentary evidence if there is
testimony that the victim was either (1) self-employed,
earning less than the minimum wage under current labor
laws, and judicial notice is taken of the fact that in the
victim's line of work, no documentary evidence is available;
of (2) employed as a daily-wage worker earning less than the
minimum wage under current labor laws. Id. at 556.
[73]

People v. Manambay, G. R. No. 130684, 5 February 2004,

422 SCRA 73, 90.
[74]

Lamis v. Ong, G.R. No. 148923, 11 August 2005, 466 SCRA

510, 519-520.
[75]

ART. 51. Penalty to be imposed upon principals of

attempted crime. - The penalty lower by two degrees than
that prescribed by law for the consummated felony shall be
imposed upon the principals in an attempt to commit a
felony.
[76]

ART. 50. Penalty to be imposed upon principals of a

frustrated crime. - The penalty next lower in degree than that
prescribed by law for the consummated felony shall be
imposed upon the principal in a frustrated felony.

[77]

ART. 249. Homicide. - Any person who, not falling within

the provisions of article 246 shall kill another without the
attendance of any of the circumstances enumerated in the
next preceding article, shall be deemed guilty of homicide
and be punished by reclusion temporal.
Copyright 2016 - Batas.org

Each one was sentenced to suffer the penalty of fifteen (15)

days of arresto menor and to pay the costs. Rosendo
Perpenan, Rito Monterey and Macario Monterey were
acquitted (Criminal Case No. CCC-IX-38-Quezon or 1923-CFIGumaca).
The facts disclosed in the prosecution's evidence, on which
the judgment of conviction was based, are as follows:
At about nine o'clock in the morning of January 30, 1965
Geminiano de Leon, together with his thirty-three-year old
common-law wife Fabiana Rosales, his twenty-four-year old
son Marianito de Leon and one Rizal Rosales, encountered Pio
Ricohermoso in Barrio Tagbacan Silangan, Catanauan,
Quezon.

Supreme Court of the Philippines

155 Phil. 412
SECOND DIVISION
G.R. NOS. L-30527 & L-30528, March 29, 1974
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND
APPELLEE, VS. PIO RICOHERMOSO, SEVERO
PADERNAL, JUAN PADERNAL, ROSENDO PERPEAN,
MACARIO MONTEREY AND RITO MONTEREY,
DEFENDANTS, JUAN PADERNAL AND SEVERO
PADERNAL, DEFENDANTS AND APPELLANTS.
DECISION
AQUINO, J.:
Severo Padernal and Juan Padernal appealed from the
decision of the Circuit Criminal Court at Lucena City,
convicting them of murder, sentencing each of them to
reclusion perpetua and ordering them to pay solidarily the
sum of twelve thousand pesos to the heirs of Geminiano de
Leon and to pay the costs (Criminal Case No. CCC-IX-37Quezon or 1922-CFI-Gumaca).
In the same decision they were convicted of lesiones leves.

Geminiano owned a parcel of land in that barrio which

Ricohermoso cultivated as kaingin. Geminiano asked
Ricohermoso about his share of the palay harvest. He added
that he should at least be allowed to taste the palay
harvested from his land. Ricohermoso answered that
Geminiano could go to his house anytime and he would give
the latter palay. Geminiano rejoined that he could not get
the palay that morning because he was on his way to Barrio
Bagobasin but, on his return, he would stop at Ricohermoso's
house and get the palay.
When Geminiano returned to Barrio Tagbacan Silangan, he
stopped at Ricohermoso's place. It was about two o'clock in
the afternoon. Geminiano sat-on a sack beside Fabiana
Rosales in front of the house while Marianito stood-about
three meters behind his father. A .22 caliber rifle was slung
on Marianito's right shoulder. Ricohermoso stood near the
door of his house while Severo Padernal was stationed near
the eaves of the house.
Geminiano asked Ricohermoso about the palay. The latter,
no longer conciliatory and evidently hostile, answered in a
defiant tone: "Whatever happens, I will not give you palay."
Geminiano remonstrated: "Why did you tell us to pass by
your house, if you were not willing to give the palay?"

At that juncture, as if by prearrangement, Ricohermoso

unsheathed his bolo and approached Geminiano from the
left, while Severo Padernal (Ricohermoso's father-in-law) got
an axe and approached Geminiano from the right. The latter
looked up to the sexagenarian Severo Padernal, with both
hands raised and pleaded: "Mamay (Grandpa), why will you
do this to us. We will not fight you." While Geminiano was
still looking up to Severo Padernal on his right, Ricohermoso
walked to Geminiano's left, and, when about one meter from
him, stabbed him on the neck with his bolo. Geminiano fell
face downward on the ground. While in that helpless
position, he was hacked on the back with an axe by Severo
Padernal.
At that same place and time, while Severo Padernal and
Ricohermoso were assaulting Geminiano de Leon, another
episode was taking place. Juan Padernal (Ricohermoso's
brother-in-law and the son of Severo) suddenly embraced
Marianito de Leon from behind, with his right arm locked
around Marianito's neck and his left hand pressing
Marianito's left forearm. They grappled and rolled downhill
towards a camote patch. Marianito passed out. When he
regained consciousness, his rifle was gone. He walked uphill,
saw his mortally wounded father Geminiano in his death
throes, and embraced him. He carried Geminiano for a short
distance. The fifty-one year old Geminiano died at two
o'clock on that same day.
Doctor Isabela A. Matundan certified that Geminiano de Leon
sustained the following wounds:
"1. Wound, incised, neck, lateral aspect, left, cutting the
carotid artery and jugular vein, 4 inches in length crosswise
with fracture of the cervical vertebra.
2. Wound, incised, back, lumbar region, left 4-1/2 inches,
directed anteriorly, 3 inches deep.
3. Wound, incised, waist, dorsal, 1-1/2 inches, skin only.
3. Hematoma, forearm, upper third, left." (Exh. B).
Doctor Matundan said that the first wound was fatal. It could
have caused instantaneous death because it was a deep

wound which pierced the carotid artery and jugular vein (Exh.
C). The second wound on the back could likewise have
caused the victim's death if it had penetrated the kidney.
Doctor Matundan found that Marianito de Leon sustained
multiple abrasions on the neck and abdomen and a lacerated
wound on the left foot which would heal from one to nine
days even without medical treatment.
Appellants' version is that in the afternoon of January 30,
1965, when Ricohermoso refused to give any palay to
Geminiano de Leon, because the land tilled by the former
was allegedly a public land, Geminiano approached
Ricohermoso. When Geminiano unsheathed his bolo,
Ricohermoso met him, drew his bolo and struck Geminiano
on the left side of the neck. The latter tried to parry the
blow. He was wounded in the wrist. As Geminiano turned
right to flee, Ricohermoso struck him again on the left side of
his body, causing him to fall on the ground. Geminiano died
on the spot due to the bleeding from the wound on his neck.
While Geminiano was being assaulted, his son Marianito tried
to shoot with his rifle but Juan Padernal disabled him and
wrested the gun. Marianito suffered abrasions on the neck
and other parts of the body (Pages 1 to 3, appellants' brief).
It is manifest that the defendants fashioned their version in
such a way as to shift the responsibility for the killing to
Ricohermoso, a fugitive from justice who has not been tried.
They also tried to exculpate Severo Padernal and to prove
that Ricohermoso acted in self-defense.
The appellants filed their brief on February 6, 1970. Later,
Severo Padernal withdrew his appeal. The withdrawal was
granted in the resolution dated November 3, 1970 (Page 206,
Rollo). That withdrawal strengthened the case for the
prosecution or the appellee and rendered inoperative
appellants' version of the case. Severo Padernal in effect
accepted as correct the prosecution's version of the tragic
incident and the trial court's finding that he conspired with
Ricohermoso and his son, Juan, to kill Geminiano de Leon.

The only issue in this appeal, which concerns Juan Padernal,

is whether he conspired with Ricohermoso and Severo
Padernal to kill Geminiano de Leon.
The trial court rationalized its conclusion that there was
conspiracy by stating that their conduct revealed unity of
purpose and a concerted effort to encompass Geminiano's
death.
Appellant Juan Padernal invokes the justifying circumstance
of avoidance of a greater evil or injury (par. 4, Art. 11,
Revised Penal Code) in explaining his act of preventing
Marianito de Leon from shooting Ricohermoso and Severo
Padernal. His reliance on that justifying circumstance is
erroneous. The act of Juan Padernal in preventing Marianito
de Leon from shooting Ricohermoso and Severo Padernal,
who were the aggressors, was designed to insure the killing
of Geminiano de Leon without any risk to his assailants.
Juan Padernal was not avoiding any evil when he sought to
disable Marianito. Padernal's malicious intention was to
forestall any interference in the felonious assault made by his
father and brother-in-law on Geminiano. That situation is
unarguably not the case envisaged in paragraph 4 of article
11.
Juan Padernal contends that he was not a co-principal
because he did not take any direct part in the killing of
Geminiano, that he did not force or induce Ricohermoso to
stab Geminiano and that he allegedly did not cooperate in its
commission. That contention is not well-taken.
It should be recalled that, in the morning, Geminiano had an
understanding with Ricohermoso that he (Geminiano) would
return in the afternoon to get his share of the palay harvest.
Ricohermoso gave Geminiano the impression that he
(Ricohermoso) was amenable to giving Geminiano his share
of the harvest. However, during the interval, Ricohermoso
changed his mind. Instead of remaining steadfast to his
original intention to give Geminiano palay, Ricohermoso
planned with his father-in-law, Severo Padernal, and his
brother-in-law, appellant Juan Padernal, the manner of

liquidating Geminiano so as to stop him from pestering

Ricohermoso with demands for a share in the harvest.
So, when Geminiano reappeared at Ricohermoso's place in
the afternoon, Severo Padernal, Ricohermoso and Juan
Padernal, like actors in a well-rehearsed play, performed their
assigned roles with dramatic precision. Severo Padernal and
Ricohermoso, one armed with an axe and the other with a
bolo, in a pincer movement, confronted Geminiano de Leon.
Simultaneously with that maneuver, the thirty-five-year old
Juan Padernal embraced Marianito de Leon and prevented
him from firing at Severo Padernal and Ricohermoso or from
helping his father.
Considering the trio's behavior and appellant Juan Padernal's
close relationship to Ricohermoso and Severo Padernal, the
ineluctable conclusion is that he acted in conspiracy with
them. He coordinated and timed his seizure of Marianito with
the assault of Ricohermoso and Severo Padernal on
Geminiano. It is doubtful if the assailants could have
consummated the killing of Geminiano, without their
suffering any injury, if Marianito had not been rendered
helpless by appellant Juan Padernal.
The circumstances surrounding the killing of Geminiano de
Leon disclose alevosia or treachery. His hands were raised
and he was pleading for mercy with Severo Padernal, when
Ricohermoso struck him on the neck with a bolo. The fact
that an exchange of words preceded the assault would not
negate the treacherous character of the attack. Geminiano
did not expect that Ricohermoso would renege on his
promise to give him palay and that he would adopt a
bellicose attitude. Juan Padernal's role of weakening the
defense, by disabling Marianito de Leon, was part and parcel
of the means of execution deliberately resorted to by the
assailants to insure the assassination of Geminiano de Leon
without any risk to themselves (Par. 16, Article 14, Revised
Penal Code).
Treachery was appreciated in a case where the accused fired
at the victim who, with hands upraised, pleaded in a loud
voice: "Do not shoot me; investigate first what was my fault"

(People vs. Barba, 97 Phil. 991. See People vs. Dagundong,

108 Phil. 682, 684, 693).
As to the other case, L-30528, the charge against the
appellants was attempted murder with respect to Marianito
de Leon. The trial court convicted them of lesiones leves.
The case was included in this appeal apparently pursuant to
the provision in section 17(1) of the Judiciary Law that a case
arising out of the same occurrence, as that in which reclusion
perpetua was imposed, is appealable to this Court.
Inasmuch as Juan Padernal did not touch upon the lesiones
leves case in his brief, he, like his father Severo, seems to
have acquiesced in the correctness of the trial court's
decision.
WHEREFORE, the judgment of the lower court as to
appellant Juan Padernal is affirmed with costs against him.
SO ORDERED
Zaldivar, (Chairman), Fernando, Barredo, and Fernandez, JJ.,
concur.
Antonio, J., took no part.
Copyright 2016 - Batas.org

DECISIONS OF THE COURT OF APPEALS

[No. 22553-R April 14, 1959]

The People of the Philippines, plaintiff and appellee, vs.
Maria Norma Hernandez, Mariano Hernandez and
Ramona Martinez, defendants; Maria Norma Hernandez, defendant and appellant.
Criminal Law; Slander by Deed; one who Backs out from an
Agreement to Marry Cannot be held Liable for Slander by
Deed. A party to an agreement to marry who backs out
cannot be held liable for the crime of slander by deed, for then
that would be an inherent way of compelling said party to go
into a marriage without his or her free consent, and this
would
contravene the principle in law that what could not be done
directly could not be done indirectly; and said party has the
right to avoid to himself or herself the evil of going through
a loveless marriage pursuant to Article 11, paragraph 4 of the
Revised Penal Code.
APPEAL from a judgment of the Court of First Instance
of Batangas. Vasquez, J.
The facts are stated in the opinion of the Court.
Zosima C. Hernandez, for defendant and appellant.
Assistant Solicitor General Esmeraldo Umali and Attorney Enrique M. Reyes, for plaintiff and appellee.
Gutierrez David, Pres. J.:
Together with the herein appellant Maria Norma Her-

nandez, her father Mariano Hernandez and mother Ramona

Martinez were charged with serious slander by deed. The
Court of First Instance of Batangas after due trial acquitted Mariano Hernandez and Ramona Martinez but convicted the herein appellant and sentenced her to pay a fine
of P300, to indemnify the offended party in the sum of P200
with subsidiary imprisonment in case of insolvency and to
pay the costs.
The evidence for the prosecution tends to show the following facts :
The complainant, Vivencio Lascano, a lad of 19 years of
age started courting appellant Maria Norma Hernandez
sometime in August, 1954. After months of courtship appellant finally accepted Vivencio on January 6, 1955. On
that date they talked about their marriage appellant telling
Vivencio to bring his parents to her home so that they
could talk about their marriage. On January 6, 1955 Vivencio told his parents about appellants request. Subsequently* or on February 6, 1955 complainant s paients together with his twelve aunts, bringing along about 30
chickens and three goats, went to appellants house to ask
for her hand in marriage. The parents of both parties
agreed to the marriage of appellant to Vivencio. They set
March 19, 1955 as the date of the wedding to be held at
the Roman Catholic church of Taal, Batangas. They likewise agreed that Vivencios parents would buy a wedding
dress, two vestidos, a pair of shoes for the bride, to advance
P20 for fetching the sponsors in the wedding and to repair
the roof of one Feliciano Martinez house, an uncle of the
appellant.
On February 21, 1955, as the date of the wedding was
approaching, the appellant and Vivencio, together with their
parents, went to the municipal treasurer of Taal, Batangas.
to file their application for marriage (Exhibits B and C)
and the consent of their parents to said marriage (Exhibits
D and E). On March 5, 1955 the corresponding marriage
license, (Exh. F) was issued. After the issuance of the
marriage license, Vivencio and his parents together with
the appellant and the parents of the latter went to the

parish priest of Taal, Batangas to arrange the proclamation

of the coming marriage of the two. Later on they went
to the house of one Isidora Lascano to order appellants
wedding gown which was brought to appellants house on
March 16, 1955. Inasmuch as there was no one there, and
the house was closed, the gown was just left in the balcony.
On the same date, Vivencios father, in the presence of appellants parents, gave P20 to the appellants father, as
agreed upon. On the same date and on March 17 and 18
the parents of Vivencio cleaned the yard of appellants
house and did other household chores in the traditional barrio wedding practice. On March 18 they constructed a
temporary shed where the wedding feast was to be held
wherein they put up a temporary stove. They slaughtered
goats, pigs and chickens and they served around 90 guests.
On the morning of March 19, they served around 70 guests
because Vivencios parents invited the appellants friends
and relatives. While said party or celebration was going
on, appellant could be found nowhere. Vivencio and his
parents still waited for her until twelve midnight of March
19 but appellant never showed up thus causing them great
shame and humiliation.
Appellant, testifying in her own behalf, averred that Vivencio was. really courting her but she was not in love with
him. Her parents, however, tried to persuade her to accept Vivencio s proposal of marriage. They even sought
the help of her uncle, Agapito Mortel, to persuade her.
Being obedient to her parents and her uncle Agapito, who
was insistent, she was finally prevailed upon to accept Vivencios love, although she felt no love for the latter. Vivencios parents went to ask for her hand in marriage,
bringing chickens along with them. Before they came, appellant already counseled them not to bring those chickens
but they insisted such that appellant had to tell them that
they and Vivencio should not regret what should happen
later. As the date of the marriage was approaching, she
felt a sense of torture because she was not honestly in love
with Vivencio. She then decided to leave her home as a
last recourse in order to prevent the marriage believing
that if anyone will be humiliated by the failure of the marriage, it would be she being a girl and not Vivencio. So

on March 11, 1955, she alone and without telling her parents
what her plans were, left for Mindoro and stayed with her
cousin at Calapan where she remained until April of 1955
when she was fetched by her cousin to be brought to Taal,
Batangas because she was under arrest on account of this
present case. Appellant denied having received a wedding
gown, stating that what Vivencio once brought to her was
an ordinary dress (bestida) and that was before she accepted his love.
The appellants parents corroborated the latters version
stating that Vivencio was courting their daughter and that
they wanted Vivencio to marry her but inasmuch as appellant was cool to Vivencio they persuaded her to accept his
proposition and even sought the help of Marias uncle, Agapito Mortel, until finally appellant acceded; that on March
11, 1955 they found out that the appellant was not in their
house so they started looking for her and on the following
day they were informed that she was in Calapan, Mindoro.
Appellants father feeling very much embarrassed and
thinking that he might kill her daughter upon seeing her,
did not go to Calapan to fetch her. They denied that Vivencios parents went to their house on March 17 and 18 to
prepare food for the coming marriage and that a temporary
shed was constructed for the wedding feast and averred
that there was no wedding gown brought to their house.
The trial court finding that appellant purposely and deliberately absconded in order to prevent the celebration of
her marriage with the offended party after subsequent preparations had been made by the latter in connection with
the marriage; and that the steps taken by her in order to
prevent the celebration of the marriage constitute the
crime of serious slander by deed, convicted her for said
crime. Appellant now assails such findings and judgment
as erroneous and seeks acquittal.
On its part, the appellee recommends reversal of the appealed judgment and acquittal of appellant on the ground
that appellants act in going to Mindoro with the deliberate
purpose of preventing the celebration of the marriage with
complainant because she does not love the latter does not

constitute the crime of slander by deed.

Among the reasons adduced by the Solicitor General are :
that malice, one of the essential requisites of slander, has
not been proven ; that in the act done by appellant there was
no malice because in changing her mind, assuming that she
was in love with complainant previous to the incident, she
was merely exercising her right not to give her consent to
the marriage after mature consideration, such consent being her prerogative as one of the contracting parties ; that
she can freely refuse such consent during the actual marriage even if there was previous valid agreement to marry ;
that there were no strained relations existing between the
complainant and the appellant and her parents before the
incident, on the contrary, there always existed good relations
between them being neighbors, so that it cannot be
sustained
that appellant was motivated by spite or ill-will in deliberately frustrating the marriage, and there was, therefore, no
malice on her part ; that since no marriage shall be solemnized unless the consent of the parties is freely given, to
penalize appellant for not continuing with the proposed marriage would make the State practically instrumental in compelling an unwilling party to enter into a marriage, an
institution in the maintenance of which in its purity the
public is deeply interested * * * ; that since the
appellant unquestionably has the privilege to change or
reconsider her previous commitment to marry the complainant it would be rank inconsistency to convict her for
the crime of serious slander by deed, simply because she
desisted in continuing with the marriage; that if a party
to an agreement to marry who backs out should be held
liable for the crime of slander by deed, then that would
be an inherent way of compelling said party to go into a
marriage without his or her free consent, and this would
contravene the principle in law that what could not be
done directly could not be done indirectly; and that appellant had the right to avoid to herself the evil of going
through a loveless marriage pursuant to Article 11, paragraph 4 of the Revised Penal Code.
With the foregoing reasonings of the appellee we are in

full accord ; so, as prayed for by both parties, the appealed

judgment is hereby reversed and the appellant acquitted
with costs cle officio.
Hernandez and Amparo, concur.
Judgment reversed.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-18660 December 22, 1922
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiffappellee,
vs.
FELIPE DELIMA, defendant-appellant.

Tancinco & Rosales for appellant.

Attorney-General Villa-Real for appellee.

ROMUALDEZ, J.:
Lorenzo Napilon had escaped from the jail where he was
serving sentence.
Some days afterwards the policeman Felipe Delima, who was
looking for him, found him in the house of Jorge Alegria,
armed with a pointed piece of bamboo in the shape of a
lance, and demanded his surrender. The fugitive answered
with a stroke of his lance. The policeman dodged, it, and to
impose his authority fired his revolver, but the bullet did not
hit him. The criminal ran away, without parting with his
weapon. These peace officer went after him and fired again
his revolver, this time hitting and killing him.
The policeman was tried and convicted for homicide and
sentenced to reclusion temporal and the accessory penalties.
He appeals from that judgment which must be reversed.
That killing was done in the performance of a duty. The
deceased was under the obligation to surrender, and had no
right, after evading service of his sentence, to commit
assault and disobedience with a weapon in the hand, which
compelled the policeman to resort to such an extreme
means, which, although it proved to be fatal, was justified by
the circumstances.lawphil.net
Article 8, No. 11, of the Penal Code being considered, Felipe
Delima committed no crime, and he is hereby acquitted with
the costs de oficio. So ordered.

Araullo C.J., Street. Malcolm, Avancea, Villamor, Ostrand

and Johns, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. Nos. L-1940-42
March 24, 1949
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
IGNACIO LAGATA, defendant-appellant.
Vicente del Villar for appellant.
Assistant Solicitor General Guillermo E. Torres and Solicitor
Jaime de los Angeles for appellee.
PERFECTO, J.:
The witnesses in the this case testified in substance as
follows:
PROSECUTION
1. Eusebio Abria 20 single farmer Jinangutdan, Santa Rita
Samar. On October 3, 1946 he was in the provincial jail
detained for illegal possession of firearm, but his case was
dismissed. Ignacio Lagata was a provincial guard Six
Prisoners were then assigned to work in the capitol's plaza;
Jesus, Tipace, Eusebio Mariano the witness and Epifanio
Labong. their guard ordered them to go to the nursery to pick
up gabi. Not long afterwards they were called to assemble.
Epifanio Labong was missing. The nursery is near the
provincial hospital in Catbalogan. The place was grassy.
Lagata ordered the five prisoner to call Labong (4-7). As
Labong did not answer Lagata ordered the five prisoners to
look for him. They followed the trail. Upon reaching the
nation highway, Lagata called them. As Labong did not
answer their call Lagata ordered the five to look farther for

him. The five prisoners went towards the mountain. Upon

reaching a camote plantation, "I saw footprints. I called my
companions. While we were all in the camote plantation I did
not know that I was shot by Ignacio Lagata. He was about
four meter away from me. He fired at my left arm." At the
time the witness was standing one of his companions was at
his right side three or four meter behind him. All walked
almost together at the moment because they wanted to see
the footprints pointed by the witness. "At the moment that he
was hit he immediately called the attention of Ignacio Lagata
'Mano, I am wounded.' He said it is because you did not
approach to me." (8-9). "When I saw that he again
manipulated the chamber of his gun I ran away. When I say
that my other companion ran away, I ran also. I noticed that
my left arm was wounded. When I was already sitting by the
front of the coconut tree I heard another gun shot." Tipace is
already dead "I did not see him anymore. When Ignacio
Lagata passed by where I was I Requested him to take me.
He brought me to the justice building Hospital. My left arm is
amputated just right at the joint between the shoulder and
the arm. It is not yet completely healed." The witness had no
intention to run from Lagata. (11). Labong asked Lagata
permission to gather gabi. The other prisoner did not say
anything. Lagata told them to go to the nursery. While they
were gathering gabi Lagata was near them. (12). But he
could not see everybody because there was talahib growing
in the place and it was tall. The witness heard three shots.
The second one hit him. After the first shot "we were all
assembled." (132-14). The witness did not see Tipace being
shot. "The reason as to why I ran was because I was afraid
that I might be shot again." (16). His companions were
probably scared and that is why they ran. (17).
2. Mariano Ibaez, 25, married detained prisoner Zumarraga,
Samar. On October 3, 1946, he was in the provincial jail as
a detained prisoner. After breakfast, six prisoner were called:

Epifanio Labong Ceferino Tipace, Eustaquio Galet, Jesus

Manoso, Eusebio Abria and the witness, Mariano Ibanez. They
went to work in the plaza of the provincial jail. At about 11:00
o'clock they were taking a rest and while they were taking a
rest the witness heard Lagata inviting the prisoners to go the
nursery to gather near the provincial hospital. They scattered
to get gabi. "We scarcely got three gabis when I heard
Ignacio Lagata calling us to assemble." The place was grassy
were picking gabi Lagata was standing by the side of a
mango tree. At the call of Lagata only five them to call for
him. (19-21). "Inasmuch as Epifanio Labong did not answer
our call Ignacio Lagata ordered us to go to the mountain and
look for Epifanio Labong. Eusebio then went to the camote
plantation. He foundfootprints and he called Ignacio Lagata
to inform him that he saw footprints. On account of this
report of Eusebio that he saw flattened grass and that hewas
unable to look for Epifanio Labong sa Ignacio Lagata filed at
him and he was hit on the left arm." He was at about three
meter from Lagata. (22). The witness was at the left side of
Ceferino Tipace at about two meter from Abria.Abria said,
"Mano, I am wounded." Lagata said in turn, "Come around
assemble here." Abria came to the right side of Lagata. (23).
"Oncewe were already assembled there Ignacio Lagata
cocked his gun and shot Ceferino Tipace and when I saw that
Ceferino Tipace was hit then I ran away because I had in
mind that had i not ran I would have been shot also." At the
time Tipace was "standing and carrying with him on his left
arm some gabi and when he turned to the left that was the
time when he was shot by Ignacio Lagata. The bullet
penetrated from the left side of the armpit and came out
from the right side of the body." Tipace was at about two
meter then from Lagata. "At about 4:00 o'clock in the
afternoon of that day I returned to the provincial jail. I did not
return immediately because I was afraid." Tipace was killed.
(23). One morning, Lagata gave the witness fist blow on the
abdominal region and kicked him at the back Because the

pervious night the witness told the prisoners not to make

much noise. "I did not have ill-feeling because he had the
right to maltreat me even if I was not at fault." (29). At the
time they were searching for Labong before the shooting
they were walking in an ordinary way looking toward the
ground one after another at about half a meter from each
other. Lagata was behind all of them. (31).
3. Gilberto C. Rosales 63, married, president Sanitary Division
Catbalogan, Samar. On October 17, 1946, the cadaver of
Ceferino Tipace was exhumed. (35). The witness found in it,
"A gun shot wound which went through the body from the
lower left axillary region to the right shoulder." (36).
4. Eustaquio Galet, 20, married detained prisoner. On
October 3, 1946, he was one of the six prisoner who worked
in the premises of the capitol building. (38). "We went to the
nursery and each one of us got gabi. The guard Ignacio
Lagata was under the mango tree. I was about ten meter
awayfrom him. It was grassy in the place where we were
picking gabi. Not long after we were called by Ignacio Lagata
because we were going home already. One was missing,
Epifanio Labong. Ignacio Lagata ordered us to call Epifanio
Labong but Epifanio Labong but Epifanio Labong did not
answer." (39) The talahib plants growing in the place were
taller than myself. " Lagata orderedus to search for Epifanio
Labong. We went around the place and then crossed the
national highway and went up the mountain until we reached
tom place where cogon grass were growing. Eusebio Abria
and myself saw flattened grass. We informed Ignacio Lagata
that there was a trace where a person had passed by or he
may have gone that way. Then Ignacio Lagata fired one time.
While we were searching for Epifanio Labong each one of us
were bent and leaning looking downward. I heard a gun shot
and that was the time when Eusebio Abria was shot and then
once he was hit he called Ignacio Lagata his hand at his

wound and then got near Ignacio Lagata." (40). "Upon seeing
that one of our companions was already shot without fault, I
ran away and came down to the capitol building and then
went to the provincial jail and reported the matter to the
sergeant of the guard." His companion then was Jesus
Maoso. They reached the provincial jail at about 12 o'clock
noon. The shooting took place at about 11:30. (41). The
witness heard Labong ask Lagata to accompany their group
to the nursery to gather gabi. When he was shot Abria was
bent and leaning his body downward to the ground while
Lagata was behind him. (42). The witness heard the shot that
killed Ceferino Tipace. "I was already descending near the
Capitol building that was the time when I heard the shot."
(43). Jesus Manoso ran away with the witness, but Ceferino
Tipaceand Mariano Ibanez remained. The treatment received
by the witness from Lagata was good. (44).
5. Pedro Mayuga, 39, married, chief, Samar Provincial
Hospital. On October 3, 1946, prisoner Eusebio Abria was
brought to the hospital with a wound on the upper side of his
left arm which was amputated from the shoulder joint. "The
patient was at first given resuscitating medical treatment to
combat the shock caused by the hemorrhage and later the
shoulder joint was disarticulated." After his arm was cut, he
was confined in the hospital until November 6. The wound
must have been produced by a gun shot. There are
indications that the shot was fired at close range. Very likely
around five meters. (48). There was no possibility of saving
the arm because "all the vital tissues were destroyed and the
bone in all the vital parts of the tissues destroyed from
outward and inward." (50).
DEFENSE
1. Andres Saludario, 49, married, nursery foreman,
Catbalogan, Samar. On October 3, 1946, he saw Lagata in
the nursery guarding six prisoners. (53-54). The prisoners

were just within the premises of the nursery just beyond the
mango tree. Lagata was about seven meters from them and
he was looking at them all the time. The place was grassy.
The grass was about half a meter tall. (55). The ground near
the hill was covered with cogon and talahib. By the height
they could cover a man in standing position. The witness
heard about the disappearance of prisoner Epifanio Labong.
At the time, the witness was already far, because he had to
attend to several laborers detained at the capitol building.
When he returned from the capitol building, he was informed
that Epifanio Labong disappeared. (57-59). The witness did
not hear any gun shot explosion in the nursery. He saw the
accused guarding the prisoners at about 8:00 o'clock in the
morning. (60). The witness stayed in the nursery until about
8:30, when he came to the capitol building. (61).
2. Ignacio Lagata, 27, married, Catbalogan. On October 3,
1946, he accompanied the six prisoners from the provincial
jail to the plaza of the provincial capitol. He remained there
until 10 o'clock in the morning, when he told them to return
to the provincial jail. The six prisoners requested him to allow
them to get some gabi in the nursery. Lagata went with them
to a spot around the mango tree. (63-64). The grass in the
place was knee-high. Lagata was under a mango tree about
five meters from the prisoners. He was watching all of them.
They were scattered back, Epifanio Labong took advantage
and escaped. "I did not discover that but when I called them
to assemble I found out that one missing. I asked the rest of
the prisoners as to where Epifanio Labong was. I told the
prisoners to go to that spot. We went there and the prisoners
were ahead because they know the place. (66). When we
arrived at the place, we did not see Labong and Tipace called
our attention telling us that this is the place through which
Epifanio Labong passed." The witness did not see the track of
Epifanio Labong but the prisoners, however, were the ones
who indicated to him the place through which Epifanio

Labong passed. "I followed them. Up to above the national

highway. When we reached up the place another prisoner
called also our attention telling us that here is the place
through which Labong passed and so went up. When we
reached above, they were already far from here. So I told
them to stop because they were already far from me. They
did not heed my order to stop. Then I fired up to the air. They
scattered. I could only see two of them I also saw one of
them running towards the mountain. So I fired at him." It was
Eusebio Abria, and he was at about five meters from him. "He
was going up the mountain. After I fired at Eusebio Abria, I
saw him running. I just left him because I was looking for the
rest. I saw also Ibanez running. He was running towards me
and then around me. I called his attention and told him to
stop from running or else lie down and give up your arm. He
did not heed my order. I fired at him." (67-69). The witness
saw Ibanez running before him towards the south road. He
was Tipace. One minute elapsed from the time the witness
fired at Abria to the time he fired at Ibaez. The witness fired
at them because he sympathizes with other policemen from
whom other prisoners escaped. (70). "Because if it so
happened that a prisoner escaped under my custody, I would
be the one to be put in jail and if I cannot fire at him, I will be
the one to be put in jail. "The truth is that they ran away." At
the time he fired at Tipace and Abria, they were running
away. (71). "What was in my mind was that if I could overtake
them and not fire at them, I would meet the same situation
as what other guards met under whose custody prisoners
escaped and some of them were discharged from their duty."
Ibanez testified against the accused because the latter fired
at his father-in-law. (72). One day, the accused maltreated
Ibanez. He slapped him two times. He was the only prisoner
he slapped. (73). At the time they were looking for Labong,
the prisoners were walking in line one meter from one to
another. The accused was near them. (77). When he fired at
Abria, the latter was about five meters from him and when he

fired at Tipace, the latter was four meters from him. At the
time, Tipace was running side-wise to the accused and he
could see where the accused was. His face was facing the
accused. (78). When he fired at Abria, he lost hope to recover
Labong. "I was hopeless already." (80) The picking up of gabi
was not part of the work of the prisoners. (81).
Appellant was charged with murder, serious physical injuries
and evasion through negligence in three separate cases
which have been tried jointly.Finding him guilty, the trial
court sentenced him as follows:
(a) For Murder (Case No. 809) Reclusion Perpetua with civil
interdiction for life and perpetual absolute disqualification,
indemnify the heirs of Ceferino Tipace Two Thousand Pesos
(2,000) and pay the costs of this action
(b) For serious physical injuries (Case No. 810) An
indeterminate imprisonment of two (2) year and four (4)
month as minimum to four (4) year nine (9) month and ten
(10) days of prison correccional as maximum and pay the
cost of this action; and
(c) For evasion through negligence (Case No. 811) An
indeterminate imprisonment of two (2) months one (1) day of
arresto mayor as minimum to one (1) year one (1) month and
ten (10) days of prison correccional and pay the costs, (p. 45,
rec.)
The evidence is conclusion to the effect that the escape of
prisoner Epifanio Labong was due to the negligence of the
appellant. The six prisoner were supposed to work in the
plaza of the provincial capitol and to return to jail after said
work but appellants allowed them instead to go to the
nursery to gather gabi without any apparent authority to do
so.
Considering that the place was grassy and tall talahib was
growing therein the height of which could conceal persons in
standing position appellant must have seen immediately that

it was a choice place for any prisoner that may want to

escape. Such negligence of appellant is punishable under
article 224 of the Revised Penal code, and the penalty
imposed by trial court is in accordance with law.
As regards the shooting of Abria and Tipace we are convinced
that the facts were as narrated by the witnesses for the
prosecution. Abria was shot when by the witnesses for then
prosecution. Abria was shot when he was onlythree meter
away from appellant and the latter has not even shown that
Abria attempted to escape. Tipace was also shot when he
was about four or fivemeter away from appellant. The latter's
allegation that Tipace was running conveying the idea that
said prisoner was in the act of escaping appears to be
inconsistent with his own testimony to the effect that Tipace
was running sidewise with his face looking towards appellant
andwith the undisputed fact that Tipace was hit near one
axilla, the bullet coming out from the opposite shoulder. If
Tipace's purpose was to escape the natural thing for him to
do would have to give his back to appellant.
The criminal responsibility of appellant regarding the killing
of Tipace can be exacted from him on the basis of his own
testimony. The way he fired at Tipace ( whom he misnamed
first as Ibaez) is described by appellant in the following
words:.
He was running towards me and then around me.
I called his attention and told him to stop from running or
else lie downand give up your arm. He did not heed my
advice.
Inasmuch as he did not heed my advised so I fired at him.
His direction while he was running not exactly towards me
but running in front of me to the left side. (69).
Explaining his reason for firing at Abria and Tipace, appellant
gave the following reason: "Because I sympathize with the

other policeman from whom prisoners escaped." (70). "If it so

happened that a prisoner escaped under my custody, I would
be the one to be put in jail and if I cannot fire at him I will be
the one to be put in jail." (71). (Emphasis ours)
It is clear that Lagata had absolutely no reason to fire at
Tipace. Lagata could have fired at him in self defense or if
absolutely necessary to avoid his escape. The record does
not show that Tipace was bent on committing any act of
aggression "he was running towards and then around me".
(Emphasis ours) How could anyone in his senses imagine that
Tipace intended to escape by running towards and around
the very guard he was supposed to escape from?
There is no question that the escape of Labong scared
appellant according to him because of the experience of
other guard who were dismissed from office or even
prosecuted because of prisoners who had escaped under
their custody and that it was his duty to fire against the
prisoner if he wanted to be exempt from any responsibility.
Even if appellant sincerely believe, althougherroneously that
in firing the shots be acted in the performance of his official
duty the circumstances of the case show that there was no
necessity for him to fire directly against the prisoners so as
seriously wound one of them and kill instantaneously
another. While custodians of prisoners should necessity
would authorize them to fire against them. Their is the
burden of proof as to such necessity. The summary
liquidation of Prisoner under flimsy pretexts of attempts of
escape, which has been and is being practiced in dictatorial
system of government has always been and is shocking to
the universal conscience of humanity.
Human life is valuable albeit sacred. Cain has been the object
of unrelentlesscurse for centuries and millennia and his name
will always be remembered in shame as long as there are
human generation able to read the Genesis. Twenty centuries

of Christianity have not been enough to make less imperative

the admonition that Thou shall not kill," uttered by greatest
pundit and prophet of Israel. Laws constitution world charters
have been written to protect human life. Still it is imperative
that all men be imbued with spirit of the Sermon on the
Mount that the words of the gospels be translated into reality
and that their meaning fill all horizon with the eternal aroma
of encyclical love of mankind.
As recommended by the prosecuted appellants is entitled to
the benefit of the mitigating circumstance of incomplete
justifying circumstance in paragraph5 of Article 11 of the
Revised Penal Code. Consequently appellant shouldbe
sentenced for homicide to an indeterminate penalty of six
years andone day of prision mayor to twelve years and one
day of reclusion temporal and in the case of serious physical
injuries to an indeterminate penalty of four months and one
day of arresto mayor to two years, four months and one day
of prision correccional.
Modified as above stated the appealed decision is affirmed
with costs against appellant.
Feria, Briones, Tuason and Reyes JJ., concur.
Moran, C.J., concurs in the result.

Separate Opinions
PARAS, J., dissenting:
The accused Ignacio Lagata a provincial guard of Catbalogan,
Samar was in charge of six prisoners charged with murder,
assigned to clean the capitol plaza of Samar. On their return
to the prison compound he gave said prisonerspermission to
gather gabi in the presence of the accused who remained at
a distance of about six meter. Instantly he discovered that
prisoner Epifanio Labong had escaped. The accused then

asked the remaining prisoner to help in locating him but in so

doing he was led by said prisoners to places where escape
was much easier. The accused fired his gun in air in order to
stop the fleeing prisoners. Some of the prisoners were
already going to the nearby mountain apparently in attempt
also to escape. Whereupon the accused decided to aim his
gun at those who were fleeing until one of them was hurt and
another was killed.
The question now is under the circumstances what was the
duty of the appellant guard? If he allowed them to escape he
would have been charged with infidelity in the custody of
prisoner, He was provided with a gun for some purpose. In
my opinion he made use of it legally in the performance of
his official duty. (United State vs.Magno, 8 Phil., 320, 321;
People vs. Delima 46 Phil., 738) To hold otherwise would be
to plainly encourage the escape of prisoners, what the many
jailbreaks that had already taken place.
As stated in the majority opinion appellant fired at Eusebio
Abria because as the latter himself stated on direct
examination at the trial he did not approach the appellant
guard when called. Indeed he further stated that "When I saw
my other companion run away I ran also."
Eustaquio Galet a prosecution witness on direct question by
counsel de oficio stated: "I heard Epifanio Labong gather
gabi." About how many minute was the interval between the
shot of Eusebio Abria and the next shot that you heard?"
Galet answers: about 15 minutes."
The accused fired three shot one in the air to call the prisoner
back or as a warning that they should not run away; the
second hit Abria; and the third hit Ceferino Tipace. "And it
was during the time that the rest were running when you
heard the next shot and you ran too?" Asked this question
Abria answered: "Yes. Sir." As may be seen the testimony of
the very witness for the fired at Abria when he was running
away with the rest of the prisoners. (See p. 71, t.s.n.) In view

of the above consideration I vote for the acquittal of the

appellant.

PABLO, J., concurro:

Concurro con la absolusion del acusado.
Bengzon, J., I also vote to acquit.
Montemayor, J., concurs

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 149152
February 2, 2007
RUFINO S. MAMANGUN, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
GARCIA, J.:

In this petition for review under Rule 45 of the Rules of Court,

petitioner Rufino Mamangun y Silverio seeks the reversal of
the Decision1 dated January 19, 2001 (promulgated on
February 13, 2001) of the Sandiganbayan in its Criminal Case
No. 21131, convicting him of the crime of Homicide.
The factual backdrop:
On September 12, 1994, herein petitioner, then a police
officer, was charged before the Sandiganbayan with the
crime of Murder, allegedly committed, per the indicting
Information,2 docketed as Criminal Case No. 21131, as
follows:
That on or about the 31st day of July 1992, in the
Municipality of Meycauyan, (sic) Province of Bulacan,
Philippines, and within the jurisdiction of this Honorable
Court, the said accused Rufino S. Mamangun, a public officer,
being then a Police Officer (PO2), duly appointed as such and
acting in relation to his office, armed with a gun, with intent
to kill, did then and there willfully, unlawfully and feloniously,
with treachery, evident premeditation and abuse of superior
strength, attack, assault and shoot one Gener M. Contreras
with the said gun, hitting the latter on his body, thereby
inflicting (sic) him serious physical injuries which directly
cause (sic) his death.
CONTRARY TO LAW.
On arraignment, petitioner, as accused below, duly assisted
by a counsel de oficio, entered a plea of "Not Guilty."
In the ensuing trial, the prosecution presented in evidence
the testimonies of Crisanto Ayson (Ayson), an alleged
eyewitness, and Dr. Benito Caballero, then the designated
Medico-Legal Officer of Bulacan who performed an autopsy
on the cadaver of the victim.
For its part, the defense adduced in evidence the testimonies
of the accused himself, Rufino Mamangun, his co-policemen
at the Philippine National Police (PNP), namely, PO2 Carlito
Cruz, PO4 Hobert O. Diaz and Police Investigator SPO-1
Hernando B. Banez, all assigned at the Meycauayan Police
Station; and those of Lorenzo S. Abacan and Rogelio Ingco,
son and son-in-law, respectively, of Antonio Abacan, owner of
the house on which rooftop the shooting of the victim took
place.
It is not disputed that on July 31, 1992, at about 8:00 in the
evening, in Brgy. Calvario, Meycauayan, Bulacan a certain

Liberty Contreras was heard shouting, "Magnanakaw

Magnanakaw." Several residents responded and thereupon
chased the suspect who entered the yard of Antonio Abacan
and proceeded to the rooftop of Abacans house.
At about 9:00 oclock that same evening, the desk officer of
the Meycauayan PNP Police Station, upon receiving a
telephone call that a robbery-holdup was in progress in Brgy.
Calvario, immediately contacted and dispatched to the scene
the crew of Patrol Car No. 601 composed of Team Leader
SPO1 Andres Legaspi, with PO2 Eugenio Aminas and herein
petitioner PO2 Rufino S. Mamangun; and Patrol Car No. 602
composed of Team Leader PO3 Sandiego San Gabriel, with
PO2 Carlito Cruz and PO2 Hobert Diaz. With the permission of
Abacan, petitioner Mamangun, PO2 Diaz and PO2 Cruz went
to the rooftop of the house whereat the suspect was
allegedly taking refuge.
The three policemen, i.e., petitioner, Diaz and Cruz, each
armed with a drawn handgun, searched the rooftop. There,
they saw a man whom they thought was the robbery suspect.
At that instance, petitioner Mamangun, who was walking
ahead of the group, fired his handgun once, hitting the man.
The man turned out to be Gener Contreras (Contreras) who
was not the robbery suspect.
Contreras died from the gunshot wound. The autopsy
conducted by Dr. Benito B. Caballero yielded the following
findings:
The cause of death was "Shock due to massive external and
internal hemorrhage due to multiple gunshot wounds in the
left arm side of the thorax, penetrating the left lung and
vertebral column." There were several wounds caused by one
(1) bullet.
As shown on the sketch of human body attached to the
Certificate of Death, and as testified on by Dr. Caballero, the
bullet entered through the "lower third of the left arm, left
side of the thorax and it penetrated the left lung and
vertebral column and that is where the slug was found." From
a laymans appreciation of the sketch, the bullet entered the
outer, upper left arm of the victim, exited through the inner
side of the said upper left arm, a little lower than the left
armpit and the slug lodging on the victims back where it was
recovered at the vertebral column.3

From the foregoing admitted or undisputed facts, the

prosecution and the defense presented conflicting versions
as to how the fatal shooting of Contreras by petitioner
Mamangun actually happened.
According to Ayson, the lone eyewitness for the prosecution,
he accompanied the three policemen (Mamangun, Diaz and
Cruz) to the rooftop of Abacans house. He was following
petitioner Mamangun who was ahead of the group. They
passed through the second-floor door of the house to the
rooftop. The roof was lighted by an incandescent bulb from
an adjacent house. He was beside Mamangun when they
saw, some four to five arms-length away, a man whom he
(witness) recognized as Gener Contreras. Mamangun pointed
his .45 cal. pistol at the man, who instantly exclaimed, "Hindi
ako, hindi ako!," to which Mamangun replied, "Anong hindi
ako?" Before he (Ayson) could say anything, Mamangun fired
his gun, hitting the man who turned out to be Contreras. He
(witness) approached the victim who was then lying on his
left side unconscious. He brought down the victim and they
rushed him to the hospital where he died at about 10:00
oclock that same evening.
The defense has its own account of what purportedly actually
transpired.1awphi1.net
PO2 Mamangun, along with PO2 Cruz and PO2Diaz, denied
the presence of Ayson at the rooftop during the shooting
incident. Corroborating one another, the three testified that
they were the only ones at the scene of the shooting, and
that it was dark. They claimed that each of them, with
Mamangun on the lead, went on separate directions around a
water tank. As they met each other at the other side of the
tank, PO2 Cruz pointed to a person crouching at the edge of
the roof of the garage. Thinking that the person was the
suspect they were looking for, Mamangun chased said
person. They announced that they were police officers but
the person continued to run in a crouching position until
Mamangun caught up with him and shouted, "Pulis. Tigil,"
whereupon the person suddenly stopped, turned around,
faced Mamangun, and raised a stainless steel pipe towards
the latters head but Mamangun was able to evade the
attack. This prompted Mamangun to shoot the person on the
left arm. All three claimed that it was only at this point that
PO2 Cruz and Diaz approached Contreras who told them,

"Hindi ako. Hindi ako." Mamangun went near Contreras and

asked, "Why did you go to the rooftop? You know there are
policemen here." Contreras was thereafter brought to the
hospital where he died. After the shooting incident,
Mamangun reported the same to the desk officer, POI
Filomeno de Luna, who advised him to remain in the police
station. De Luna directed Police Investigator Hernando Banez
to investigate the incident. That same evening, Investigator
Banez went to the place where the shooting happened.
Banez allegedly found a steel pipe about three (3) feet long
on the depressed portion of the roof.
On January 19, 2001, after due proceedings, the
Sandiganbayan came out with its decision 4 finding the
petitioner guilty beyond reasonable doubt of only the crime
of Homicide. In so finding, the Sandiganbayan did not
appreciate the presence of the aggravating circumstances of
treachery, evident premeditation and abuse of superior
strength to qualify the killing to Murder. But even as the said
court rejected the petitioners claim that the shooting was
justified by self-defense, it nonetheless ruled that the crime
of Homicide was attended by an incomplete justifying
circumstance of the petitioner having acted in the
performance of his duty as a policeman, and also appreciated
in his favor the generic mitigating circumstance of voluntary
surrender. Dispositively, the decision reads:
WHEREFORE, the accused, RUFINO S. MAMANGUN, is hereby
found GUILTY beyond reasonable doubt of the crime of
Homicide, defined and penalized under Article 249, Revised
Penal Code, and taking into account the attendance of one
(1) privileged mitigation (sic) circumstance, one generic
circumstance and no aggravating circumstance, he is hereby
sentenced under the Indeterminate Sentence Law, to suffer
the penalty of imprisonment of from Three (3) Years and
Three (3) Months of prision correctional as minimum, to
Seven (7) years of prision mayor, as maximum, to indemnify
the heirs (parents) of Gener Contreras in the total amount of
P352,025.00, and to past the costs.
SO ORDERED.
Unable to accept the judgment of conviction, petitioner is
now with this Court via the present recourse alleging that the
Sandiganbayan committed reversible error in failing to apply
paragraph 5, Article 11, of the Revised Penal Code, which

would have absolved him from criminal liability on the basis

of his submission that the shooting in question was done in
the performance of a duty or in the lawful exercise of a right
or office.
First off, petitioner insists that the shooting, which ultimately
caused the demise of Contreras, was justified because he
was repelling Contreras unlawful attack on his person, as
Contreras was then about to strike him on the head with a
steel pipe.
We are not persuaded.
Well-settled is the rule that factual findings of the
Sandiganbayan are conclusive upon the Court except where:
(1) the conclusion is a finding grounded entirely on
speculations, surmises and conjectures; (2) the inference
made is manifestly mistaken; (3) there is grave abuse of
discretion; (4) the judgment is based on misapprehension of
facts and the findings of fact are premised on the absence of
evidence and are contradicted by the evidence on
record.5 None of these exceptions obtains in this case.
Having admitted6 the fatal shooting of Contreras on the night
of July 31, 1992, petitioner is charged with the burden of
adducing convincing evidence to show that the killing was
done in the fulfillment of his duty as a policeman.
The justifying circumstance of fulfillment of duty under
paragraph 5, Article II, of the Revised Penal Code may be
invoked only after the defense successfully proves that: (1)
the accused acted in the performance of a duty; and (2) the
injury inflicted or offense committed is the necessary
consequence of the due performance or lawful exercise of
such duty.7
Concededly, the first requisite is present in this case.
Petitioner, a police officer, was responding to a robberyholdup incident. His presence at the situs of the crime was in
accordance with the performance of his duty. However, proof
that the shooting and ultimate death of Contreras was a
necessary consequence of the due performance of his duty
as a policeman is essential to exempt him from criminal
liability.
As we see it, petitioners posturing that he shot Contreras
because the latter tried to strike him with a steel pipe was a
mere afterthought to exempt him from criminal liability.

We see no plausible basis to depart from the

Sandiganbayans findings that there was no reason for the
petitioner to shoot Contreras. The latter was unarmed and
had already uttered, "Hindi po ako, Hindi po ako" before the
petitioner fatally shot him on the left arm. Prosecution
witness Ayson, who was then behind the petitioner when the
latter shot Contreras, testified that to the victims utterances,
the petitioner even responded, "Anong hindi ako," and
immediately shot Contreras.8 As correctly observed by the
Sandiganbayan:
Besides being self-serving (with respect to the accused) and
biased (with respect to his co-policemen-witnesses), We find
(1) the claim of the accused and his co-policemen-witnesses
that the victim (Contreras) attacked the said accused and (2)
their seemingly "positive" identification of the stainless steel
pipe (more of a rod) as his weapon, to be of doubtful
credibility, for the following reasons:
(1) We have no doubt that, as claimed by PO2 Carlito Cruz
and PO2 Hobert Diaz, the three policemen appropriately
identified themselves as police officers as they started
chasing the man they saw "crouching," and, as claimed by
accused PO2 Rufino Mamangun, that, as he was about to
catch up with said man, he shouted, "Pulis! Tigil!" With all
these introductions and forewarnings, it is utterly incredible
and contrary to human experience that, that man, later
identified to be Gener Contreras and admittedly not the
person they were looking for, purportedly armed only with a
stainless steel "lead" pipe (more of a rod) would suddenly
stop, turn around and attack one of the three policemen who
were chasing him, one after the other, with drawn guns.
(2) When the victim (Gener Contreras) fell down after being
shot by accused PO2 Mamangun, and as the latter went near
the fallen victim, said accused asked, "Why did you go to the
rooftop. You know there are policemen here." He admits that
he did not ask the victim, "Why did you try to hit me, if you
are not the one?" This admission clearly belies the claim of
the police-witnesses that Gener Contreras attacked the
accused policeman with an iron pipe when he was shot, for
the accused should have asked the latter question.
(3) The location of the entry of the bullet fired by accused
Mamangun which is at the outer left arm at about the bicep
of the victim and its trajectory as it penetrated his body

hitting his vital organs along the way belies the claim of the
accused that the victim was facing him and had just missed
his head with an iron pipe, as instead the victim must have
instinctively shielded his body with his left arm.
Moreover, petitioners pretense that Contreras struck him
with a steel pipe is intriguing. As it is, petitioner did not
report the same to Police Investigator Banez when he
reported back to the police station after the shooting
incident. It was only when a lead pipe was recovered from
the scene and brought to the police station that petitioner
conveniently remembered Contreras trying to hit him with a
pipe. Such a vital information could not have escaped the
petitioners mind. We are thus inclined to believe that the
alleged actuation of Contreras, which could have justified
petitioners shooting him, was nothing but a concocted story
to evade criminal liability. Indeed, knowing that he shot
Contreras, the least that the petitioner should have done was
to bring with him to the police station the very pipe with
which Contreras tried to attack him. As borne by the
evidence, however, it was only after a police investigator
referred to the scene that the lead pipe surfaced.
Petitioner would likewise argue that the testimony of
prosecution witness Ayson was incredible and riddled with
inconsistencies.
The alleged contradictions cited by the petitioner, i.e. where
the victim was shot, where he died, and as to whether Ayson
left his house after the shooting incident, are but minor
details which do not affect Aysons credibility. We have held
time and again that few discrepancies and inconsistencies in
the testimony of a witness referring to minor details and not
in actuality touching upon the central fact of the crime, do
not impair his credibility. Quite the contrary, such minor
inconsistencies even tend to strengthen credibility because
they discount the possibility that the testimony was
rehearsed.9
For sure, the record reveals that Aysons answers to the
questions propounded by the defense counsel are clear and
categorical. As to where the victim died, Ayson clarified that
the victim was already at the rooftop even before the arrival
of the police officers. As to why he was not able to warn
Mamangun that the victim was his relative, Ayson explained
that he was not able to utter any word because when

Contreras said "Hindi ako. Hindi ako," petitioner suddenly

fired at the latter.10 As to the claim that Ayson was also on
the roof, record shows that the robbery-holdup happened at
around 8:00 in the evening. Before the policemen arrived,
Ayson and Contreras were already pursuing the
robber.11 Ayson also testified that when the victim was shot
by the petitioner, the former fell on his left side unconscious;
that he did not leave his house after the incident because he
was afraid that the policemen would detain him.12
Self-defense, whether complete or incomplete, cannot be
appreciated as a valid justifying circumstance in this case.
For, from the above admitted, uncontroverted or established
facts, the most important element of unlawful aggression on
the part of the victim to justify a claim of self defense was
absent. Lacking this essential and primary element of
unlawful aggression, petitioners plea of self-defense,
complete or incomplete, must have to fail.
To be sure, acts in the fulfillment of a duty, without more, do
not completely justify the petitioners firing the fatal gunshot
at the victim. True, petitioner, as one of the policemen
responding to a reported robbery then in progress, was
performing his duty as a police officer as well as when he was
trying to effect the arrest of the suspected robber and in the
process, fatally shoot said suspect, albeit the wrong man.
However, in the absence of the equally necessary justifying
circumstance that the injury or offense committed be the
necessary consequence of the due performance of such duty,
there can only be incomplete justification, a privileged
mitigating circumstance under Articles 13 and 69 of the
Revised Penal Code.
There can be no quibbling that there was no rational
necessity for the killing of Contreras. Petitioner could have
first fired a warning shot before pulling the trigger against
Contreras who was one of the residents chasing the
suspected robber.
All told, we find no reversible error committed by the
Sandiganbayan in convicting the petitioner of the crime of
Homicide attended by the privileged mitigating circumstance
of incomplete justifying circumstance of having acted in the
performance of his duty as a policeman and the generic
mitigating circumstance of voluntary surrender.

IN VIEW WHEREOF, the instant petition is DENIED and the

assailed decision of the Sandiganbayan is AFFIRMED in all
respects.
No pronouncement as to costs.
SO ORDERED.
CANCIO C. GARCIA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
Chairperson
ANGELINA SANDOVALRENATO C.
GUTIERREZ
CORONA
Associate Justice
Asscociate Justice
ADOLFO S. AZCUNA
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I
certify that the conclusions in the above decision had been
reached in consultation before the case was assigned to the
writer of the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice
Footnotes
1
Penned by Associate Justice Nicodemo T. Ferrer with
Associate Justices Narciso S. Nario and Rodolfo G. Palatao,
concurring; Rollo, pp. 25-46.
2
Sandiganbayan Record, Vol. I, p. 1.
3
As culled from the Sandiganbayan decision, Id. at 29.
4
Supra note 1.
5
Resoso v. Sandiganbayan, G.R. No. 124140, November 25,
1999, 319 SCRA 238, 244.
6
TSN, p. 11; Hearing on May 27, 1996.
7
People v. Cawaling, G.R. No. 117970, July 28, 1998, 293
SCRA 267.
8
TSN, pp. 22, 29. Hearing on March 23, 1995.
9
People v. Givera, G.R. No. 132159, January 18, 2001, 349
SCRA 513, 530.
10
TSN, pp. 9-10, March 23, 1996.
11
Ibid at p. 20.

12

Ibid at p. 15.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-4445
February 28, 1955
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MANUEL BERONILLA, FILIPINO VELASCO, POLICARPIO

PACULDO, and JACINTO ADRIATICO, defendantsappellants.

Agripino A. Brillantes, Valera, Eufemio and Bernardez for
appellants.
Prospero C. Sanidad and Claro M. Recto for defendant.
Office of the Solicitor General Juan R. Liwag and Solicitor
Jaime R. de los Angeles and Martiniano P. Vivo for appellee.
REYES, J.B.L., J.:
This is an appeal by accused Manuel Beronilla, Policarpio
Paculdo, Filipino Velasco, and Jacinto Adriatico from the
judgment of the Court of First Instance of Abra (Criminal Case
No. 70) convicting them of murder for the execution of
Arsenio Borjal in the evening of April 18, 1945, in the town of
La Paz , Province of Abra.
Arsenio Borjal was the elected mayor of La Paz, Abra, at the
outbreak of war, and continued to serve as Mayor during the
Japanese occupation, until March 10, 1943, when he moved
to Bangued because of an attempt upon his life by unknown
persons. On December 18, 1944, appellant Manuel Beronilla
was appointed Military Mayor of La Paz by Lt. Col. R. H.
Arnold, regimental commander of the 15th Infantry,
Philippine Army, operating as a guerrilla unit in the province
of Abra. Simultaneously with his appointment as Military
Mayor, Beronilla received copy of a memorandum issued by
Lt. Col. Arnold to all Military Mayors in Northern Luzon,
authorizing them "to appoint a jury of 12 bolomen to try
persons accused of treason, espionage, or the aiding and
abetting (of ) the enemy" (Exhibit 9). He also received from
the Headquarters of the 15th Infantry a list of all puppet
government officials of the province of Abra (which included
Arsenio Borjal, puppet mayor of La Paz), with a memorandum
instructing all Military Mayors to investigate said persons and
gather against them complaints from people of the
municipality for collaboration with the enemy (Exhibit 12-a).
Sometime in March, 1945, while the operations for the
liberation of the province of Abra were in progress, Arsenio
Borjal returned to La Paz with his family in order to escape
the bombing of Bangued. Beronilla, pursuant to his
instructions, placed Borjal under custody and asked the
residents of La Paz to file complaints against him. In no time,
charges of espionage, aiding the enemy, and abuse of
authority were filed against Borjal; a 12-man jury was

appointed by Beronilla, composed of Jesus Labuguen as

chairman, and Benjamin Adriatico, Andres Afos, Juanito Casal,
Santiago Casal, Benjamin Abella, Servillano Afos, Mariano
Ajel, Felimon Labuguen, Felix Murphy, Pedro Turqueza, and
Delfin Labuguen as members; while Felix Alverne and Juan
Balmaceda were named prosecutors, Policarpio Paculdo as
clerk of the jury, and Lino Inovermo as counsel for the
accused. Later, Atty. Jovito Barreras voluntarily appeared and
served as counsel for Borjal. Sgt. Esteban Cabanos observed
the proceedings for several days upon instructions of
Headquarters, 15th Infantry. The trial lasted 19 days up to
April 10, 1945; the jury found Borjal guilty on all accounts
and imposed upon him instruction from his superiors. Mayor
Beronilla forwarded the records of the case to the
Headquarters of the 15th Infantry for review. Said records
were returned by Lt. Col. Arnold to Beronilla on April 18, 1945
with the following instructions:
HEADQUARTERS 3RD MILITARY DISTRICT
15TH INFANTRY, USAFIP
In the Field
16 April 1945
Msg. No. 337
Subject: Arsenio Borjal, Charges Against
To: Military Mayor of La Paz, Abra.
1. Returned herewith are the papers on the case of Arsenio
Borjal.
2. This is a matter best handled by your government and
whatever disposition you make of the case is hereby
approved.
(Sgd.) R. H. ARNOLD
Lieut.-Colonel, 15th Inf., PA
Commanding
Received April 18, 1945, 10:35 a.m.
(Sgd.) MANUEL BERONILLA
Military Mayor, La Paz, Abra
(Exhibit 8, 8-a)
and on the night of the same day, April 18, 1945, Beronilla
ordered the execution of Borjal. Jacinto Adriatico acted as
executioner and Antonio Palope as grave digger. Father
Luding of the Roman Catholic Church was asked to

administer the last confession to the prisoner, while Father

Filipino Velasco of the Aglipayan Church performed the last
rites over Borjal's remains. Immediately after the execution,
Beronilla reported the matter to Col. Arnold who in reply to
Beronilla's report, sent him the following message:
HEADQUARTERS 3RD MILITARY DISTRICT
15TH INFANTRY, USAFIP
In the Field
22 April 1945
Msg. No. 398
Subject: Report and information Re Borjal case
To: Military Mayor Beronilla
1. Received your letter dated 18 April 1945, subject, above.
2. My request that you withhold action in this case was only
dictated because of a query from Higher Headquarters
regarding same. Actually, I believe there was no doubt as to
the treasonable acts of the accused Arsenio Borjal and I know
that your trial was absolutely impartial and fair.
Consequently, I Can only compliment you for your impartial
independent way of handling the whole case.
(Sgd.) R. H. ARNOLD
Lieut.-Colonel, 15th Inf., PA
Commanding
Received April 26, 1947 7:00 a.m.
(Sgd.) MANUEL BERONILLA
Military Mayor, La Paz, Abra
(Exhibit 21, 21-a)
Two years thereafter, Manuel Beronilla as military mayor,
Policarpio Paculdo as Clerk of the jury, Felix Alverne and Juan
Balmaceda as prosecutors, Jesus Labuguen, Delfin Labuguen,
Filemon Labuguen, Servillano Afos, Andres Afos, Benjamin
Adriatico, Juanito Casel, Santiago Casel, Mariano Ajel, Felix
Murphy, Benjamin Abella, and Pedro Turqueza as members of
the jury, Jacinto Adriatico as executioner, Severo Afos as
grave digger, and Father Filipino Velasco as an alleged
conspirator, were indicted in the Court of First Instance of
Abra for murder, for allegedly conspiring and confederating
in the execution of Arsenio Borjal. Soon thereafter, the late
President Manuel A. Roxas issued Executive Proclamation No.
8, granting amnesty to all persons who committed acts

penalized under the Revised Penal Code in furtherance of the

resistance to the enemy against persons aiding in the war
efforts of the enemy. Defendant Jesus Labuguen, then a
master sergeant in the Philippine Army, applied for and was
granted amnesty by the Amnesty Commission, Armed Forces
of the Philippines (Records, pp. 618-20). The rest of the
defendant filed their application for amnesty with the Second
Guerrilla Amnesty Commission, who denied their application
on the ground that the crime had been inspired by purely
personal motives, and remanded the case to the Court of
First Instance of Abra for trial on the merits.
Upon motion of defense counsel, the case against defendant
Jesus Labuguen, who had been granted amnesty by the
Amnesty Commission of the Armed Forces of the Philippines,
was ordered provisionally dismissed: defendant Juan
Balmaceda was discharged from the information so that he
might be utilized as state witness, although actually he was
not called to testify; while the case against defendants
Antonio Palope (the grave digger) and Demetrio Afos( a
boloman) was dismissed for lack of sufficient evidence.
Trial proceeded against the rest of the defendants; and on
July 10, 1950, the Court below rendered judgment, acquitting
the members of the jury and the grave digger Antonio Palope
on the ground that they did not participated in the killing of
Arsenio Borjal; acquitting defendants Jesus Labuguen, Felix
Alverne, Severo Afos, and Lauro Parado upon insufficiency of
evidence to establish their participation in the crime; but
convicting defendants Manuel Beronilla, Policarpio Paculdo,
Filipino Velasco, and Jacinto Adriatico as conspirator and coprincipals of the crime of murder, and sentencing them to
suffer imprisonment of from 17 years, 4 months and 1 day
ofreclusion temporal to reclusion perpetua, to indemnify the
heirs of Arsenio Borjal jointly and severally in the amount of
P4,000 with subsidiary imprisonment in case of insolvency,
and each to pay one fourth of the costs. In convicting said
defendants the Court a quo found that while the crime
committed by them fell within the provisions of the Amnesty
Proclamation, they were not entitled to the benefits thereof
because the crime was committed after the expiration of the
time limit fixed by the amnesty proclamation;: i.e., that the
deceased Arsenio Borjal was executed after the liberation of
La Paz, Abra.

In view of the sentence meted by the Court below, the

accused Beronilla, Paculdo, Velasco and Adriatico appealed to
this Court.
The records are ample to sustain the claim of the defense
that the arrest, prosecution and trial of the late Arsenio Borjal
were done pursuant to express orders of the 15th Infantry
Headquarters. (Exhibit 9 and 12-a), instructing all military
mayors under its jurisdiction to gather evidence against
puppet officials and to appoint juries of at least 12 bolomen
to try the accused and find them guilty by two thirds vote. It
is to be noted that Arsenio Borjal was specifically named in
the list of civilian officials to be prosecuted (Exhibit 12-b).
In truth, the prosecution does not seriously dispute that the
trial and sentencing of Borjal was done in accordance with
instructions of superior military authorities, altho it point to
irregularities that were due more to ignorance of legal
processes than personal animosity against Borjal. The state,
however, predicates its case principally on the existence of
the radiogram Exhibit H from Col. Volckmann, overall area
commander, to Lt. Col. Arnold, specifically calling attention to
the illegality of Borjal's conviction and sentence, and which
the prosecution claims was known to the accused Beronilla.
Said message is as follows:
"Message:
VOLCKMANN TO ARNOLD CLN UNDERSTAND THAT
MUNICIPALITIES OF ABRA HAVE ORGANIZED JURY SYSTEM PD
BELIEVE THAT THIS BODY IS ILLEGAL AND CANNOT TRY
PUNISHMENTS THEREOF PD SPECIFIC INSTANCE IS BROUGHT
TO YOUR ATTENTION FRO PROPER AND IMMEDIATE ACTION
ON ONE ARSENIO BORJAL OF LA PAZ WHO HAS BEEN TRIED
CMA CONVICTED AND SENTENCED TO BE HANGED PD
REPORT ACTION TAKEN BY YOU ON THIS MATTER PD MSG
BEGINS CLN"
(EXH. H)
The crucial question thus becomes whether or not this
message, originally sent to Arnold's quarters in San Esteban,
Ilocos Sur, was relayed by the latter to appellant Beronilla in
La Paz, Abra, on the morning of April 18, 1945, together with
the package of records of Borjal's trial that was admittedly
returned to and received by Beronilla on that date, after
review thereof by Arnold (Exhibit 8-8-a). Obviously, if the
Volckmann message was known to Beronilla, his ordering the

execution of Borjal on the night of April 18, 1945 can not be

justified.
We have carefully examined the evidence on this important
issue, and find no satisfactory proof that Beronilla did
actually receive the radiogram Exhibit H or any copy thereof.
The accused roundly denied it. The messenger, or "runner",
Pedro Molina could not state what papers were enclosed in
the package he delivered to Beronilla on that morning in
question, nor could Francisco Bayquen (or Bayken), who
claimed to have been present at the delivery of the message,
state the contents thereof.
The only witness who asserted that Beronilla received and
read the Volckmann message, Exhibit H, was Rafael
Balmaceda, a relative of Borjal, who claimed to have been, as
Beronilla's bodyguard, present at the receipt of the message
and to have read it over Beronilla's shoulder. This testimony,
however, can not be accorded credence, for the reason that
in the affidavit executed by this witness before Fiscal Antonio
of Abra (Exhibit 4), Balmaceda failed to make any mention of
the reading, or even the receipt, of the message. In the
affidavit, he stated:
Q. In your capacity as policeman, do you know of any usual
occurrence that transpired in La Paz, Abra? A. Yes, sir.
Q. Will you state what is the event? A. On April 17, 1945, I
was assigned as guard at the Presidencia where Mayor
Arsenio Borjal is confined. On the 18th of April, 1945, six
bolomen came to me while I was on duty as guard, that
Mayor Borjal should be tied, on orders of Mayor Beronilla,
Mayor Borjal wanted to know the reason why he would be
tied, as he had not yet learned of the decision of the jury
against him. Mayor Borjal wrote a note to Mayor Beronilla,
asking the reason for his being ordered to be tied. I
personally delivered the note of Borjal to Mayor Beronilla.
Mayor Beronilla did not answer the note, but instead told me
that I should tie Mayor Borjal, as tomorrow he would die, as
he cannot escape. I returned to the Presidencia, and Mayor
Borjal was tied, as that was the ordered of Mayor Beronilla.
The plain import of the affidavit is that the witness Rafael
Balmaceda was not with Beronilla when the message arrived,
otherwise Beronilla would have given him his orders direct,
as he (Balmaceda) testified later at the trial. Moreover, it is
difficult to believe that having learned of the contents of the

Volckmann message, Balmaceda should not have relayed it

to Borjal , or to some member of the latter's family,
considering that they were relatives. In addition to
Balmaceda was contradicted by Bayken, another prosecution
witness, as to the hatching of the alleged conspiracy to kill
Borjal. Balmaceda claimed that the accused-appellants
decided to kill Borjal in the early evening of April 18, while
Bayken testified that the agreement was made about ten
o'clock in the morning, shortly after the accused had denied
Borjal's petition to be allowed to hear mass.
Upon the other hand, Beronilla's conduct belies his receipt of
the Volckmann message. Had he executed Borjal in violation
of superior orders, he would not have dared to report it to
Arnold's headquarters on the very same day, April 18th,
1945, as he did (Exhibit 20), half an hour after the execution.
And what is even more important, if Borjal was executed
contrary to instructions, how could Lt. Colonel Arnold on April
21, 1945, write in reply (Exhibit 21, 21-a) "I can only
compliment you for your impartial but independent way of
handling the whole case" instead of berating Beronilla and
ordering his court martial for disobedience?
Our conclusion is that Lt. Col. Arnold, for some reason that
can not now be ascertained, failed to transmit the Volckmann
message to Beronilla. And this being so, the charge of
criminal conspiracy to do away with Borjal must be rejected,
because the accused had no need to conspire against a man
who was, to their knowledge, duly sentenced to death.
The state claims that the appellants held grudges against the
late Borjal. Even so, it has been already decided that the
concurrence of personal hatred and collaboration with the
enemy as motives for a liquidation does not operate to
exclude the case from the benefits of the Amnesty claimed
by appellants, since then "it may not be held that the
manslaughter stemmed from purely personal motives"
(People vs. Barrioquinto,* G. R. Nos. L-2011 and 2267, June
30, 1951). Actually, the conduct of the appellants does not
dispose that these appellants were impelled by malice (dolo).
The arrest and trial of Borjal were made upon express orders
of the higher command; the appellants allowed Borjal to be
defended by counsel, one of them (attorney Jovito Barreras)
chosen by Borjal's sister; the trial lasted nineteen (19) days;
it was suspended when doubts arose about its legality, and it

was not resumed until headquarters (then in Langangilang,

Abra) authorized its resumption and sent an observer
(Esteban Cabanos, of the S-5) to the proceedings, and whose
suggestions on procedure were followed; and when the
verdict of guilty was rendered and death sentence imposed,
the records were sent to Arnold's headquarters for review,
and Borjal was not punished until the records were returned
eight days later with the statement of Arnold that "whatever
disposition you make of the case is hereby approved" (Exhibit
8), which on its face was an assent to the verdict and the
sentence. The lower Court, after finding that the late Arsenio
Borjal had really committed treasonable acts, (causing
soldiers and civilians to be tortured, and hidden American
officers to be captured by the Japanese) expressly declared
that "the Court is convinced that it was not for political or
personal reason that the accused decided to kill Arsenio
Borjal" (Decision, p. 9; Record, p. 72,7).
It appearing that the charge is the heinous crime of murder,
and that the accused-appellants acted upon orders, of a
superior officers that they, as military subordinates, could not
question, and obeyed in good faith, without being aware of
their illegality, without any fault or negligence on their part,
we can not say that criminal intent has been established (U.
S. vs. Catolico, 18 Phil., 507; Peo. vs. Pacana, 47 Phil., 48;
Sent. of the Tribunal Supremo of Spain, 3 July 1886; 7 January
1901; 24 March 1900; 21 Feb. 1921; 25 March 1929). Actus
non facit reum nisi mens si rea.
To constitute a crime, the act must, except in certain crimes
made such by statute, be accompanied by a criminal intent,
or by such negligence or indifference to duty or to
consequence, as, in law, is equivalent to criminal intent. The
maxim is, actus non facit reum, nisi mens rea-a crime is not
committed if the minds of the person performing the act
complained of be innocent. (U. S. vs. Catolico, 18 Phil., 507).

But even assuming that the accused-appellant did commit

crime with they are charged, the Court below should not
have denied their claim to the benefits of the Guerrilla
Amnesty Proclamation No. 8 (42 Off. Gaz., 2072)on the
ground that the slaying of Arsenio Borjal took place after
actual liberation of the area from enemy control and
occupation. The evidence on record regarding the date of
liberation of La Paz, Abra, is contradictory. The Military
Amnesty Commission that decided the case of one of the
original accused Jesus Labuguen, held that La Paz, Abra, was
liberated on July 1, 1945, according to its records; and this
finding was accepted by Judge Letargo when he dismissed
the case against said accused on March 15, 1949. On the
other hand, Judge Bocar and Hilario, who subsequently took
cognizance of the case, relied on Department Order No. 25,
of the Department of the Interior, dated August 12, 1948,
setting the liberation of the Province of Abra on April 4, 1945,
fifteen days before Borjal was slain. The two dates are not
strictly contradictory; but given the benefit of the Presidential
directive to the Amnesty Commissions (Adm. Order No. 11, of
October 2, 1946) that "any reasonable doubt as to whether a
given case falls within the (amnesty) proclamation shall be
resolved in favor of the accused" (42 Off. Gaz., 2360), as was
done in People vs. Gajo, Phil., 107 46 Off. Gaz., (No. 12) p.
6093.
For the reasons stated, the judgment appealed from is
reversed and the appellants are acquitted, with costs de
oficio.
Paras, C. J., Pablo, Bengzon, Padilla, Montemayor, Reyes, A.,
Jugo, Bautista Angelo and Concepcion, JJ.,concur.
Footnotes
*
89 Phil., 414

EN BANC
[G.R. No. 103501-03. February 17, 1997]
LUIS A. TABUENA, petitioner, vs. HONORABLE SANDIGANBAYAN, and THE PEOPLE
OF THE PHILIPPINES, respondents.
[G.R. No. 103507. February 17, 1997]
ADOLFO M. PERALTA, petitioner, vs. HON. SANDIGANBAYAN (First Division), and
THE PEOPLE OF THE PHILIPPINES, represented by the OFFICE OF THE
SPECIAL PROSECUTOR, respondents.
DECISION
FRANCISCO, J.:
Through their separate petitions for review, [1] Luis A. Tabuena and Adolfo M.
Peralta (Tabuena and Peralta, for short) appeal the Sandiganbayan decision dated
October 12, 1990,[2] as well as the Resolution dated December 20, 1991 [3] denying
reconsideration, convicting them of malversation under Article 217 of the Revised
Penal Code. Tabuena and Peralta were found guilty beyond reasonable doubt of
having malversed the total amount of P55 Million of the Manila International Airport
Authority (MIAA) funds during their incumbency as General Manager and Acting
Finance Services Manager, respectively, of MIAA, and were thus meted the following
sentence:
(1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to suffer the
penalty of imprisonment of seventeen (17) years and one (1) day of reclusion
temporal as minimum to twenty (20) years of reclusion temporal as maximum, and
to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount
malversed. He shall also reimburse the Manila International Airport Authority the
sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).
In addition, he shall suffer the penalty of perpetual special disqualification from
public office.
(2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to suffer the
penalty of imprisonment of seventeen (17) years and one (1) day of reclusion
temporal as minimum, and twenty (20) years of reclusion temporal as maximum,
and to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount
malversed. He shall also reimburse the Manila International Airport Authority the
sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).
In addition, he shall suffer the penalty of perpetual special disqualification from
public office.
(3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M. Peralta are
each sentenced to suffer the penalty of imprisonment of seventeen (17) years and
one (1) day of reclusion temporal as minimum and twenty (20) years of reclusion
temporal as maximum and for each of them to pay separately a fine of FIVE
MILLION PESOS (P5,000,000.00) the amount malversed. They shall also reimburse
jointly and severally the Manila International Airport Authority the sum of FIVE
MILLION PESOS (P5,000,000.00).
In addition, they shall both suffer the penalty of perpetual special disqualification
from public office.
A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant
General Manager of MIAA, has remained at large.
There were three (3) criminal cases filed (nos. 11758, 11759 and 11760) since
the total amount of P55 Million was taken on three (3) separate dates of January,
1986. Tabuena appears as the principal accused - he being charged in all three (3)

cases. The amended informations in criminal case nos. 11758, 11759 and 11760
respectively read:
That on or about the 10th day of January, 1986, and for sometime subsequent
thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable
Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being
then the General Manager and Assistant General Manager, respectively, of the
Manila International Airport Authority (MIAA), and accountable for public funds
belonging to the MIAA, they being the only ones authorized to make withdrawals
against the cash accounts of MIAA pursuant to its board resolutions, conspiring,
confederating and confabulating with each other, did then and there wilfully,
unlawfully, feloniously, and with intent to defraud the government, take and
misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from
MIAA funds by applying for the issuance of a managers check for said amount in the
name of accused Luis A. Tabuena chargeable against MIAAs Savings Account No.
274-500-354-3 in the PNB Extension Office at the Manila International Airport in
Pasay City, purportedly as partial payment to the Philippine National Construction
Corporation (PNCC), the mechanics of which said accused Tabuena would personally
take care of, when both accused well knew that there was no outstanding obligation
of MIAA in favor of PNCC, and after the issuance of the above-mentioned managers
check, accused Luis A. Tabuena encashed the same and thereafter both accused
misappropriated and converted the proceeds thereof to their personal use and
benefit, to the damage and prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.
xxx
That on or about the 16th day of January, 1986, and for sometime subsequent
thereto, in the City of Pasay, Philippines and within the jurisdiction of this Honorable
Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being
then the General Manager and Assistant General Manager, respectively, of the
Manila International Airport Authority (MIAA), and accountable for public funds
belonging to the MIAA, they being the only ones authorized to make withdrawals
against the cash accounts of MIAA pursuant to its board resolutions, conspiring,
confederating and confabulating with each other, did then and there wilfully,
unlawfully, feloniously, and with intent to defraud the government, take and
misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from
MIAA funds by applying for the issuance of a managers check for said amount in the
name of accused Luis A. Tabuena chargeable against MIAAs Savings Account No.
274-500-354-3 in the PNB Extension Office at the Manila International Airport in
Pasay City, purportedly as partial payment to the Philippine National Construction
Corporation (PNCC), the mechanics of which said accused Tabuena would personally
take care of, when both accused well knew that there was no outstanding obligation
of MIAA in favor of PNCC, and after the issuance of the above-mentioned managers
check, accused Luis A. Tabuena encashed the same and thereafter both accused
misappropriated and converted the proceeds thereof to their personal use and
benefit, to the damage and prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.
xxx
That on or about the 29th day of January, 1986, and for sometime subsequent
thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable
Court, accused Luis A. Tabuena and Adolfo M. Peralta, both public officers, being
then the General Manager and Acting Manager, Financial Services Department,

respectively, of the Manila International Airport Authority (MIAA), and accountable

for public funds belonging to the MIAA, they being the only ones authorized to make
withdrawals against the cash accounts of MIAA pursuant to its board resolutions,
conspiring, confederating and confabulating with each other, did then and there
wilfully, unlawfully, feloniously, and with intent to defraud the government, take and
misappropriate the amount of FIVE MILLION PESOS (P5,000,000.00) from MIAA
funds by applying for the issuance of a managers check for said amount in the
name of accused Luis A. Tabuena chargeable against MIAAs Savings Account No.
274-500-354-3 in the PNB Extension Office at the Manila International Airport in
Pasay City, purportedly as partial payment to the Philippine National Construction
Corporation (PNCC), the mechanics of which said accused Tabuena would personally
take care of, when both accused well knew that there was no outstanding obligation
of MIAA in favor of PNCC, and after the issuance of the above-mentioned managers
check, accused Luis A. Tabuena encashed the same and thereafter both accused
misappropriated and converted the proceeds thereof to their personal use and
benefit, to the damage and prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.
Gathered from the documentary and testimonial evidence are the following
essential antecedents:
Then President Marcos instructed Tabuena over the phone to pay directly to the
presidents office and in cash what the MIAA owes the Philippine National
Construction Corporation (PNCC), to which Tabuena replied, Yes, sir, I will do
it. About a week later, Tabuena received from Mrs. Fe Roa-Gimenez, then private
secretary of Marcos, a Presidential Memorandum dated January 8, 1986 (hereinafter
referred to as MARCOS Memorandum) reiterating in black and white such verbal
instruction, to wit:
Office of the President
of the Philippines
Malacaang
January 8, 1986
MEMO TO: The General Manager
Manila International Airport Authority
You are hereby directed to pay immediately the Philippine National Construction
Corporation, thru this Office, the sum of FIFTY FIVE MILLION (P55,000,000.00) PESOS
in cash as partial payment of MIAAs account with said Company mentioned in a
Memorandum of Minister Roberto Ongpin to this Office dated January 7, 1985 and
duly approved by this Office on February 4, 1985.
Your immediate compliance is appreciated.
(Sgd.) FERDINAND MARCOS.[4]
The January 7, 1985 memorandum of then Minister of Trade and Industry
Roberto Ongpin referred to in the MARCOS Memorandum, reads in full:
MEMORANDUM
F o r : The President
F r o m : Minister Roberto V. Ongpin
D a t e : 7 January 1985
Subject : Approval of Supplemental Contracts and
Request for Partial Deferment of Repayment of PNCCs Advances for MIA
Development Project
May I request your approval of the attached recommendations of Minister Jesus S.
Hipolito for eight (8) supplemental contracts pertaining to the MIA Development

Project (MIADP) between the Bureau of Air Transport (BAT) and Philippine National
Construction Corporation (PNCC), formerly CDCP, as follows:
1. Supplemental Contract No. 12
Package Contract No. 2
P11,106,600.95
2. Supplemental Contract No. 13
5,758,961.52
3. Supplemental Contract No. 14
Package Contract No. 2
4,586,610.80
4. Supplemental Contract No. 15
1,699,862.69
5. Supplemental Contract No. 16
Package Contract No. 2
233,561.22
6. Supplemental Contract No. 17
Package Contract No. 2
8,821,731.08
7. Supplemental Contract No. 18
Package Contract No. 2
6,110,115.75
8. Supplemental Contract No. 3
Package Contract No. II
16,617,655.49
(xerox copies only; original memo was submitted to the Office of the President on
May 28, 1984)
In this connection, please be informed that Philippine National Construction
Corporation (PNCC), formerly CDCP, has accomplishment billings on the MIA
Development Project aggregating P98.4 million, inclusive of accomplishments for
the aforecited contracts. In accordance with contract provisions, outstanding
advances totalling P93.9 million are to be deducted from said billings which will
leave a net amount due to PNCC of only P4.5 million.
At the same time, PNCC has potential escalation claims amounting to P99 million in
the following stages of approval/evaluation:
Approved by Price Escalation Committee
P 1.9 million
(PEC) but pended for lack of funds
Endorsed by project consultants and currently 30.7 million
being evaluated by PEC
Submitted by PNCC directly to PEC and
66.5 million
currently under evaluation
Total
P99.1 million
There has been no funding allocation for any of the above escalation claims due to
budgetary constraints.
The MIA Project has been completed and operational as far back as 1982 and yet
residual amounts due to PNCC have not been paid, resulting in undue burden to
PNCC due to additional cost of money to service its obligations for this contract.
To allow PNCC to collect partially its billings, and in consideration of its pending
escalation billings, may we request for His Excellencys approval for a deferment
of the repayment of PNCCs advances to the extent of P30 million corresponding to
about 30% of P99.1 million in escalation claims of PNCC, of which P32.5 million has
been officially recognized by MIADP consultants but could not be paid due to lack of
funding.Korte
Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing
MIA Project funds. This amount represents the excess of the gross billings of PNCC
of P98.4 million over the undeferred portion of the repayment of advances of P63.9
million.
(Sgd.) ROBERTO V. ONGPIN
Minister[5]

In obedience to President Marcos verbal instruction and memorandum, Tabuena,

with the help of Dabao and Peralta, caused the release of P55 Million of MIAA funds
by means of three (3) withdrawals.
The first withdrawal was made on January 10, 1986 for P25 Million, following a
letter of even date signed by Tabuena and Dabao requesting the PNB extension
office at the MIAA - the depository branch of MIAA funds, to issue a managers check
for said amount payable to Tabuena. The check was encashed, however, at the PNB
Villamor Branch. Dabao and the cashier of the PNB Villamor branch counted the
money after which, Tabuena took delivery thereof. The P25 Million in cash were then
placed in peerless boxes and duffle bags, loaded on a PNB armored car and
delivered on the same day to the office of Mrs. Gimenez located at Aguado Street
fronting Malacaang. Mrs. Gimenez did not issue any receipt for the money received.
Similar circumstances surrounded the second withdrawal/encashment and
delivery of another P25 Million, made on January 16, 1986.
The third and last withdrawal was made on January 31, 1986 for P5
Million. Peralta was Tabuenas co-signatory to the letter- request for a managers
check for this amount. Peralta accompanied Tabuena to the PNB Villamor branch as
Tabuena requested him to do the counting of the P5 Million. After the counting, the
money was placed in two (2) peerless boxes which were loaded in the trunk of
Tabuenas car.Peralta did not go with Tabuena to deliver the money to Mrs. Gimenez
office at Aguado Street. It was only upon delivery of the P5 Million that Mrs.
Gimenez issued a receipt for all the amounts she received from Tabuena. The
receipt, dated January 30, 1986, reads:
Malacaang
Manila
January 30, 1986
RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE MILLION PESOS
(P55,000,000.00) as of the following dates:
Jan. 10 - P25,000,000.00
Jan. 16 - 25,000,000.00
Jan. 30 - 5,000,000.00
(Sgd.) Fe Roa-Gimenez
The disbursement of the P55 Million was, as described by Tabuena and Peralta
themselves, out of the ordinary and not based on the normal procedure. Not only
were there no vouchers prepared to support the disbursement, the P55 Million was
paid in cold cash. Also, no PNCC receipt for the P55 Million was presented. Defense
witness Francis Monera, then Senior Assistant Vice President and Corporate
Comptroller of PNCC, even affirmed in court that there were no payments made to
PNCC by MIAA for the months of January to June of 1986.
The position of the prosecution was that there were no outstanding obligations
in favor of PNCC at the time of the disbursement of the P55 Million. On the other
hand, the defense of Tabuena and Peralta, in short, was that they acted in good
faith. Tabuena claimed that he was merely complying with the MARCOS
Memorandum which ordered him to forward immediately to the Office of the
President P55 Million in cash as partial payment of MIAAs obligations to PNCC, and
that he (Tabuena) was of the belief that MIAA indeed had liabilities to PNCC. Peralta
for his part shared the same belief and so he heeded the request of Tabuena, his
superior, for him (Peralta) to help in the release of P5 Million.
With the rejection by the Sandiganbayan of their claim of good faith which
ultimately led to their conviction, Tabuena and Peralta now set forth a total of ten

(10) errors[6] committed by the Sandiganbayan for this Courts consideration. It

appears, however, that at the core of their plea that we acquit them are the
following:
1) the Sandiganbayan convicted them of a crime not charged in the amended
informations, and
2) they acted in good faith.
Anent the first proposition, Tabuena and Peralta stress that they were being
charged with intentional malversation, as the amended informations commonly
allege that:
x x x accused x x x conspiring, confederating and confabulating with each other, did
then and there wilfully, unlawfully, feloniously, and with intent to defraud the
government, take and misappropriated the amount of x x x.
But it would appear that they were convicted of malversation by negligence. In
this connection, the Courts attention is directed to p. 17 of the December 20, 1991
Resolution (denying Tabuenas and Peraltas motion for reconsideration) wherein the
Sandiganbayan said:
xxxxxxxxx
On the contrary, what the evidence shows is that accused Tabuena delivered
the P55 Million to people who were not entitled thereto, either as representatives of
MIAA or of the PNCC.Sclaw
It proves that Tabuena had deliberately consented or permitted
through negligence or abandonment, some other person to take such public
funds. Having done so, Tabuena, by his own narration, has categorically
demonstrated that he is guilty of the misappropriation or malversation of P55 Million
of public funds. (Underscoring supplied.)
To support their theory that such variance is a reversible flaw, Tabuena and Peralta
argue that:
1) While malversation may be committed intentionally or by negligence, both
modes cannot be committed at the same time.
2) The Sandiganbayan was without jurisdiction to convict them of malversation of
negligence where the amended informations charged them with intentional
malversation.[7]
3) Their conviction of a crime different from that charged violated their
constitutional right to be informed of the accusation.[8]
We do not agree with Tabuena and Peralta on this point. Illuminative and
controlling is Cabello v. Sandiganbayan[9] where the Court passed upon similar
protestations raised by therein accused-petitioner Cabello whose conviction for the
same crime of malversation was affirmed, in this wise:
x x x even on the putative assumption that the evidence against petitioner yielded
a case of malversation by negligence but the information was for intentional
malversation, under the circumstances of this case his conviction under the first
mode of misappropriation would still be in order. Malversation is committed either
intentionally or by negligence. The dolo or the culpa present in the offense is only a
modality in the perpetration of the felony. Even if the mode charged differs from the
mode proved, the same offense of malversation is involved and conviction thereof is
proper. x x x.
In Samson vs. Court of Appeals, et. al., we held that an accused charged with willful
or intentional falsification can validly be convicted of falsification through
negligence, thus:

While a criminal negligent act is not a simple modality of a willful crime, as we held
in Quizon vs. Justice of the Peace of Bacolor, G.R. No. L-6641, July 28, 1995, but a
distinct crime in our Penal Code, designated as a quasi offense in our Penal Code, it
may however be said that a conviction for the former can be had under an
information exclusively charging the commission of a willful offense, upon the
theory that the greater includes the lesser offense.This is the situation that obtains
in the present case. Appellant was charged with willful falsification but from the
evidence submitted by the parties, the Court of Appeals found that in effecting the
falsification which made possible the cashing of the checks in question, appellant
did not act with criminal intent but merely failed to take proper and adequate
means to assure himself of the identity of the real claimants as an ordinary prudent
man would do. In other words, the information alleges acts which charge willful
falsification but which turned out to be not willful but negligent. This is a case
covered by the rule when there is a variance between the allegation and proof, and
is similar to some of the cases decided by this Tribunal.
xxx
Moreover, Section 5, Rule 116, of the Rules of Court does not require that all the
essential elements of the offense charged in the information be proved, it being
sufficient that some of said essential elements or ingredients thereof be established
to constitute the crime proved. x x x.
The fact that the information does not allege that the falsification was committed
with imprudence is of no moment for here this deficiency appears supplied by the
evidence submitted by appellant himself and the
result has provenbeneficial to him. Certainly, having alleged that the falsification
has been willful, it would be incongruous to allege at the same time that it was
committed with imprudence for a charge of criminal intent is incompatible with the
concept of negligence.
Subsequently, we ruled in People vs. Consigna, et. al., that the aforestated rationale
and arguments also apply to the felony of malversation, that is, that an accused
charged with willful malversation, in an information containing allegations similar to
those involved in the present case, can be validly convicted of the same offense of
malversation through negligence where the evidence sustains the latter mode of
perpetrating the offense.
Going now to the defense of good faith, it is settled that this is a valid defense in
a prosecution for malversation for it would negate criminal intent on the part of the
accused. Thus, in the two (2) vintage, but significant malversation cases of US v.
Catolico[10] and US v. Elvia,[11] the Court stressed that:
To constitute a crime, the act must, except in certain crimes made such by statute,
be accompanied by a criminal intent, or by such negligence or indifference to duty
or to consequences as, in law, is equivalent to criminal intent. The maxim is actus
non facit reum, nisi mens sit rea - a crime is not committed if the mind of the person
performing the act complained of is innocent.
The rule was reiterated in People v. Pacana,[12] although this case involved
falsification of public documents and estafa:
Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus
non facit reum, nisi mens sit rea. There can be no crime when the criminal mind is
wanting.
American jurisprudence echoes the same principle. It adheres to the view that
criminal intent in embezzlement is not based on technical mistakes as to the legal
effect of a transaction honestly entered into, and there can be no embezzlement if

the mind of the person doing the act is innocent or if there is no wrongful purpose.
[13]
The accused may thus always introduce evidence to show he acted in good faith
and that he had no intention to convert.[14] And this, to our mind, Tabuena and
Peralta had meritoriously shown.
In so far as Tabuena is concerned, with the due presentation in evidence of the
MARCOS Memorandum, we are swayed to give credit to his claim of having caused
the disbursement of the P55 Million solely by reason of such memorandum. From
this premise flows the following reasons and/or considerations that would buttress
his innocence of the crime of malversation.
First. Tabuena had no other choice but to make the withdrawals, for that was
what the MARCOS Memorandum required him to do. He could not be faulted if he
had to obey and strictly comply with the presidential directive, and to argue
otherwise is something easier said than done. Marcos was undeniably Tabuenas
superior the former being then the President of the Republic who unquestionably
exercised control over government agencies such as the MIAA and PNCC. [15] In other
words, Marcos had a say in matters involving inter-government agency affairs and
transactions, such as for instance, directing payment of liability of one entity to
another and the manner in which it should be carried out. And as a recipient of such
kind of a directive coming from the highest official of the land no less, good faith
should be read on Tabuenas compliance, without hesitation nor any question, with
the MARCOS Memorandum. Tabuena therefore is entitled to the justifying
circumstance of Any person who acts in obedience to an order issued by a superior
for some lawful purpose.[16] The subordinate-superior relationship between Tabuena
and Marcos is clear. And so too, is the lawfulness of the order contained in the
MARCOS Memorandum, as it has for its purpose partial payment of the liability of
one government agency (MIAA) to another (PNCC). However, the unlawfulness of
the MARCOS Memorandum was being argued, on the observation, for instance, that
the Ongpin Memo referred to in the presidential directive reveals a liability of only
about P34.5 Million. The Sandiganbayan in this connection said:
Exhibits 2 and 2-a (pages 1 and 2 of the memorandum of Min. Ongpin to the
President dated January 7, 1985) were mainly:
a.) for the approval of eight Supplemental Contracts; and
b.) a request for partial deferment of payment by PNCC for advances made for the
MIAA Development Project, while at the same time recognizing some of the PNCCs
escalation billings which would result in making payable to PNCC the amount of
P34.5 million out of existing MIAA Project funds.
Thus:
xxx
To allow PNCC to collect partially its billings, and in consideration of its pending
escalation billings, may we request for His Excellencys approval for a deferment of
repayment of PNCCs advances to the extent of P30 million corresponding to about
30% of P99.1 million in escalation claims of PNCC, of which P32.6 million has been
officially recognized by MIADP consultants but could not be paid due to lack of
funding.
Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing
MIA Project funds. This amount represents the excess of the gross billings of PNCC
of P98.4 million over the undeferred portion of the repayment of advances of P63.9
million.
While Min. Ongpin may have, therefore recognized the escalation claims of the
PNCC to MIAA to the extent of P99.1 million (Exhibit 2a), a substantial portion

thereof was still in the stages of evaluation and approval, with onlyP32.6 million
having been officially recognized by the MIADP consultants.
If any payments were, therefore, due under this memo for Min. Ongpin (upon which
President Marcos Memo was based) they would only be for a sum of up to P34.5
million.[17]
xxxxxxxxx
V. Pres. Marcos order to Tabuena dated January 8, 1986 baseless.
Not only was Pres. Marcos Memo (Exhibit 1) for Tabuena to pay P55 million
irrelevant, but it was actually baseless.
This is easy to see.
Exhibit 1 purports to refer itself to the Ongpin Memorandum (Exhibit 2, 2-a); Exhibit
1, however, speaks of P55 million to be paid to the PNCC while Exhibit 2 authorized
only P34.5 million. The order to withdraw the amount ofP55 million exceeded the
approved payment of P34.5 million by P20.5 million. Min. Ongpins Memo of January
7, 1985 could not therefore serve as a basis for the Presidents order to
withdraw P55 million.[18]
Granting this to be true, it will not nevertheless affect Tabuenas good faith so as to
make him criminally liable. What is more significant to consider is that the MARCOS
Memorandum is patently legal (for on its face it directs payment of an outstanding
liability) and that Tabuena acted under the honest belief that the P55 million was a
due and demandable debt and that it was just a portion of a bigger liability to
PNCC.This belief is supported by defense witness Francis Monera who, on direct
examination, testified that:
ATTY ANDRES
Q Can you please show us in this Exhibit 7 and 7-a where it is indicated the receivables
from MIA as of December 31, 1985?
A As of December 31, 1985, the receivables from MIA is shown on page 2, marked as
Exhibit 7-a, sir, P102,475,392.35.
x x x x x x x x x.[19]
ATTY. ANDRES
Q Can you tell us, Mr. Witness, what these obligations represent?
WITNESS
A These obligations represent receivables on the basis of our billings to MIA as contractowner of the project that the Philippine National Construction Corporation
constructed. These are billings for escalation mostly, sir.
Q What do you mean by escalation?
A Escalation is the component of our revenue billings to the contract-owner that are
supposed to take care of price increases, sir.
x x x x x x x x x.[20]
ATTY ANDRES
Q When you said these are accounts receivable, do I understand from you that these
are due and demandable?
A Yes, sir.[21]
Thus, even if the order is illegal if it is patently legal and the subordinate is not
aware of its illegality, the subordinate is not liable, for then there would only be a
mistake of fact committed in good faith.[22] Such is the ruling in Nassif v.
People[23] the facts of which, in brief, are as follows:
Accused was charged with falsification of commercial document. A mere employee
of R.J. Campos, he inserted in the commercial document alleged to have been
falsified the word sold by order of his principal. Had he known or suspected that his

principal was committing an improper act of falsification, he would be liable either

as a co-principal or as an accomplice. However, there being no malice on his part,
he was exempted from criminal liability as he was a mere employee following the
orders of his principal.[24]
Second. There is no denying that the disbursement, which Tabuena admitted as
out of the ordinary, did not comply with certain auditing rules and regulations such
as those pointed out by the Sandiganbayan, to wit:
a) [except for salaries and wages and for commutation of leaves] all disbursements
above P1,000.00 should be made by check (Basic Guidelines for Internal Control
dated January 31, 1977 issued by COA)
b) payment of all claims against the government had to be supported with complete
documentation (Sec. 4, P.D. 1445, State Auditing Code of the Philippines). In this
connection, the Sandiganbayan observed that:
There were no vouchers to authorize the disbursements in question. There were no
bills to support the disbursement. There were no certifications as to the availability
of funds for an unquestionably staggering sum of P55 Million.[25]
c) failure to protest (Sec. 106, P.D. 1445)
But this deviation was inevitable under the circumstances Tabuena was in. He did
not have the luxury of time to observe all auditing procedures of disbursement
considering the fact that the MARCOS Memorandum enjoined his immediate
compliance with the directive that he forward to the Presidents Office the P55
Million in cash. Be that as it may, Tabuena surely cannot escape responsibility for
such omission. But since he was acting in good faith, his liability should only be
administrative or civil in nature, and not criminal. This follows the decision
in Villacorta v. People[26] where the Court, in acquitting therein accused municipal
treasurer of Pandan, Catanduanes of malversation after finding that he incurred a
shortage in his cash accountability by reason of his payment in good faith to certain
government personnel of their legitimate wages, leave allowances, etc., held that:
Nor can negligence approximating malice or fraud be attributed to petitioner. If he
made wrong payments, they were in good faith mainly to government personnel,
some of them working at the provincial auditors and the provincial treasurers
offices. And if those payments ran counter to auditing rules and regulations, they
did not amount to a criminal offense and he should only be held administratively or
civilly liable.
Likewise controlling is US v. Elvia[27] where it was held that payments in good faith
do not amount to criminal appropriation, although they were made with insufficient
vouchers or improper evidence. In fact, the Dissenting Opinions reference to certain
provisions in the revised Manual on Certificate of Settlement and Balances apparently made to underscore Tabuenas personal accountability, as agency head,
for MIAA funds - would all the more support the view that Tabuena is vulnerable to
civil sanctions only. Sections 29.2 and 29.5 expressly and solely speak of civilly
liable to describe the kind of sanction imposable on a superior officer who performs
his duties with bad faith, malice or gross negligence and on a subordinate officer or
employee who commits willful or negligent acts x x x which are contrary to law,
morals, public policy and good customs even if he acted under order or instructions
of his superiors.
Third. The Sandiganbayan made the finding that Tabuena had already converted
and misappropriated the P55 Million when he delivered the same to Mrs. Gimenez
and not to the PNCC, proceeding from the following definitions/concepts
of conversion:

Conversion, as necessary element of offense of embezzlement, being the fraudulent

appropriation to ones own use of anothers property which does not necessarily
mean to ones personal advantage but every attempt by one person to dispose of
the goods of another without right as if they were his own is conversion to his own
use. (Terry v. Water Improvement Dist. No. 5 of Tulsa County, 64 p. 2d 904, 906, 179
Okl. 106)
- At p. 207, Words and Phrases,
Permanent Edition 9A.
Conversion is any interference subversive of the right of the owner of personal
property to enjoy and control it. The gist of conversion is the usurpation of the
owners right of property, and not the actual damages inflicted. Honesty of purpose
is not a defense. (Ferrera v. Parks, 23 p. 883, 885 19 Or. 141)
- At page 168, id.
xxxxxxxxx
The words convert and misappropriate connote an act of using or disposing of
anothers property as if it were ones own. They presuppose that the thing has been
devoted to a purpose or use different from that agreed upon. To appropriate to ones
own use includes not only conversion to ones personal advantage but every
attempt to dispose of the property of another without right.
People vs. Webber, 57 O.G.
p. 2933, 2937
By placing them at the disposal of private persons without due authorization or
legal justification, he became as guilty of malversation as if he had personally taken
them and converted them to his own use.
People vs. Luntao, 50 O.G.
p. 1182, 1183[28]
We do not agree. It must be stressed that the MARCOS Memorandum directed
Tabuena to pay immediately the Philippine National Construction Corporation, thru
this office, the sum of FIFTY FIVE MILLION...., and that was what Tabuena precisely
did when he delivered the money to Mrs. Gimenez. Such delivery, no doubt, is in
effect delivery to the Office of the President inasmuch as Mrs. Gimenez was Marcos
secretary then. Furthermore, Tabuena had reasonable ground to believe that the
President was entitled to receive the P55 Million since he was certainly aware that
Marcos, as Chief Executive, exercised supervision and control over government
agencies. And the good faith of Tabuena in having delivered the money to the
Presidents office (thru Mrs. Gimenez), in strict compliance with the MARCOS
Memorandum, was not at all affected even if it later turned out that PNCC never
received the money. Thus, it has been said that:
Good faith in the payment of public funds relieves a public officer from the crime of
malversation.
xxxxxxxxx
Not every unauthorized payment of public funds is malversation. There is
malversation only if the public officer who has custody of public funds should
appropriate the same, or shall take or misappropriate or shall consent, or through
abandonment or negligence shall permit any other person to take such public
funds. Where the payment of public funds has been made in good faith, and there is
reasonable ground to believe that the public officer to whom the fund had been paid
was entitled thereto, he is deemed to have acted in good faith, there is no criminal
intent, and the payment, if it turns out that it is unauthorized, renders him only
civilly but not criminally liable.[29]

Fourth. Even assuming that the real and sole purpose behind the MARCOS
Memorandum was to siphon-out public money for the personal benefit of those then
in power, still, no criminal liability can be imputed to Tabuena. There is no showing
that Tabuena had anything to do whatsoever with the execution of the MARCOS
Memorandum. Nor is there proof that he profited from the felonious scheme. In
short, no conspiracy was established between Tabuena and the real embezzler/s of
the P55 Million. In the cases of US v. Acebedo[30] and Ang v. Sandiganbayan,[31] both
also involving the crime of malversation, the accused therein were acquitted after
the Court arrived at a similar finding of non-proof of conspiracy. In Acebedo, therein
accused, as municipal president of Palo, Leyte, was prosecuted for and found guilty
by the lower court of malversation after being unable to turn over certain amounts
to the then justice of the peace. It appeared, however, that said amounts were
actually collected by his secretary Crisanto Urbina.The Court reversed Acebedos
conviction after finding that the sums were converted by his secretary Urbina
without the knowledge and participation of Acebedo. The Court said, which we
herein adopt:
No conspiracy between the appellant and his secretary has been shown in this case,
nor did such conspiracy appear in the case against Urbina. No guilty knowledge of
the theft committed by the secretary was shown on the part of the appellant in this
case, nor does it appear that he in any way participated in the fruits of the crime. If
the secretary stole the money in question without the knowledge or consent of the
appellant and without negligence on his part, then certainly the latter can not be
convicted of embezzling the same money or any part thereof.[32]
In Ang, accused-petitioner, as MWSS bill collector, allowed part of his collection to
be converted into checks drawn in the name of one Marshall Lu, a non-customer of
MWSS, but the checks were subsequently dishonored. Ang was acquitted by this
Court after giving credence to his assertion that the conversion of his collections
into checks were thru the machinations of one Lazaro Guinto, another MWSS
collector more senior to him. And we also adopt the Courts observation therein,
that:
The petitioners alleged negligence in allowing the senior collector to convert cash
collections into checks may be proof of poor judgment or too trusting a nature
insofar as a superior officer is concerned but there must be stronger evidence to
show fraud, malice, or other indicia of deliberateness in the conspiracy cooked up
with Marshall Lu. The prosecution failed to show that the petitioner was privy to the
conspirational scheme. Much less is there any proof that he profited from the
questioned acts. Any suspicions of conspiracy, no matter how sincerely and strongly
felt by the MWSS, must be converted into evidence before conviction beyond
reasonable doubt may be imposed.[33]
The principles underlying all that has been said above in exculpation of Tabuena
equally apply to Peralta in relation to the P5 Million for which he is being held
accountable, i.e., he acted in good faith when he, upon the directive of
Tabuena, helped facilitate the withdrawal of P5 Million of the P55 Million of the MIAA
funds.
This is not a sheer case of blind and misguided obedience, but obedience in
good faith of a duly executed order. Indeed, compliance to a patently lawful order is
rectitude far better than contumacious disobedience. In the case at bench, the
order emanated from the Office of the President and bears the signature of the
President himself, the highest official of the land. It carries with it the presumption
that it was regularly issued. And on its face, the memorandum is patently lawful for

no law makes the payment of an obligation illegal. This fact, coupled with the urgent
tenor for its execution constrains one to act swiftly without question. Obedientia est
legis essentia. Besides, the case could not be detached from the realities then
prevailing. As aptly observed by Mr. Justice Cruz in his dissenting opinion:
We reject history in arbitrarily assuming that the people were free during the era
and that the judiciary was independent and fearless. We know it was not; even the
Supreme Court at that time was not free. This is an undeniable fact that we can not
just blink away. Insisting on the contrary would only make our sincerity suspect and
even provoke scorn for what can only be described as our incredible credulity.[34]
But what appears to be a more compelling reason for their acquittal is the
violation of the accuseds basic constitutional right to due process. Respect for the
Constitution, to borrow once again Mr. Justice Cruzs words, is more important than
securing a conviction based on a violation of the rights of the accused.[35] While
going over the records, we were struck by the way the Sandiganbayan actively took
part in the questioning of a defense witness and of the accused
themselves. Tabuena and Peralta may not have raised this as an error, there is
nevertheless no impediment for us to consider such matter as additional basis for a
reversal since the settled doctrine is that an appeal throws the whole case open to
review, and it becomes the duty of the appellate court to correct such errors as may
be found in the judgment appealed from whether they are made the subject of
assignments of error or not.[36]
Simply consider the volume of questions hurled by the Sandiganbayan. At the
taking of the testimony of Francis Monera, then Senior Assistant Vice President and
Corporate Comptroller of PNCC, Atty. Andres asked sixteen (16) questions on direct
examination. Prosecutor Viernes only asked six (6) questions on cross-examination
in the course of which the court interjected a total of twenty-seven (27)questions
(more than four times Prosecutor Viernes questions and even more than the
combined total of direct and cross-examination questions asked by the
counsels). After the defense opted not to conduct any re-direct examination, the
court further asked a total of ten (10) questions.[37] The trend intensified during
Tabuenas turn on the witness stand. Questions from the court after Tabuenas crossexamination totalled sixty-seven (67).[38] This is more than five times Prosecutor
Viernes questions on cross-examination (14), and more than double the total of
direct examination and cross-examination questions which is thirty-one (31) [17
direct examination questions by Atty. Andres plus 14 cross-examination questions
by Prosecutor Viernes]. In Peraltas case, the Justices, after his cross-examination,
propounded a total offorty-one (41) questions.[39]
But more importantly, we note that the questions of the court were in the nature
of cross examinations characteristic of confrontation, probing and insinuation.
[40]
(The insinuating type was best exemplified in one question addressed to Peralta,
which will be underscored.) Thus we beg to quote in length from the transcripts
pertaining to witness Monera, Tabuena and Peralta. (Questions from the Court are
marked with asterisks and italicized for emphasis.)
(MONERA)
(As a background, what was elicited from his direct examination is that the
PNCC had receivables from MIAA totalling P102,475,392.35, and although such
receivables were largely billings for escalation, they were nonetheless all due and
demandable. What follows are the cross-examination of Prosecutor Viernes and the
court questions).
CROSS-EXAMINATION BY PROS. VIERNES

Q You admit that as shown by these Exhibits 7 and 7-a, the items here represent mostly
escalation billings. Were those escalation billings properly transmitted to MIA
authorities?
A I dont have the documents right now to show that they were transmitted, but I have a
letter by our President, Mr. Olaguer, dated July 6, 1988, following up for payment of
the balance of our receivables from MIA, sir.
*AJ AMORES
*Q This matter of escalation costs, is it not a matter for a conference between
the MIA and the PNCC for the determination as to the correct amount?
A I agree, your Honor. As far as we are concerned, our billings are what we deemed are
valid receivables. And, in fact, we have been following up for payment.
*Q This determination of the escalation costs was it accepted as the correct
figure by MIA?
A I dont have any document as to the acceptance by MIA, your Honor, but our company
was able to get a document or a letter by Minister Ongpin to President Marcos,
dated January 7, 1985, with a marginal note or approval by former President
Marcos.
*PJ GARCHITORENA
*Q Basically, the letter of Mr. Ongpin is to what effect?
A The subject matter is approval of the supplementary contract and request for partial
deferment of payment for MIA Development Project, your Honor.
*Q It has nothing to do with the implementation of the escalation costs?
A The details show that most of the accounts refer to our escalations, your Honor.
*Q Does that indicate the computation for escalations were already billed or
you do not have any proof of that?
A Our subsidiary ledger was based on billings to MIA and this letter of Minister Ongpin
appears to have confirmed our billings to MIA, your Honor.
*AJ AMORES
*Q Were there partial payments made by MIA on these escalation billings?
A Based on records available as of today, the P102 million was reduced to about P56.7
million, if my recollection is correct, your Honor.
*PJ GARCHITORENA
*Q Were the payments made before or after February 1986, since Mr. Olaguer
is a new entrant to your company?
WITNESS
A The payments were made after December 31, 1985 but I think the payments were
made before the entry of our President, your Honor. Actually, the payment was in
the form of: assignments to State Investment of aboutP23 million; and then there
was P17.8 million application against advances made or formerly given; and there
were payments to PNCC of about P2.6 million and there was a payment for
application on withholding and contractual stock of about P1 million; that summed
up to P44.4 million all in all. And you deduct that from the P102 million, the
remaining balance would be about P57 million.
*PJ GARCHITORENA
*Q What you are saying is that, for all the payments made on this P102
million, only P2 million had been payments in cash?
A Yes, your Honor.
*Q The rest had been adjustments of accounts, assignments of accounts, or
offsetting of accounts?
A Yes, your Honor.

*Q This is as of December 31, 1985?

A The P102 million was as of December 31, 1985, your Honor, but the balances is as of
August 1987.
*Q We are talking now about the P44 million, more or less, by which the basic
account has been reduced. These reductions, whether by adjustment or
assignment or actual delivery of cash, were made after December 31,
1985?
WITNESS
A Yes, your Honor.
*Q And your records indicate when these adjustments and payments were
made?
A Yes, your Honor.
*AJ AMORES
*Q You said there were partial payments before of these escalation
billings. Do we get it from you that there was an admission of these
escalation costs as computed by you by MIA, since there was already
partial payments?
A Yes, your Honor.
*Q How were these payments made before February 1986, in case or check, if
there were payments made?
A The P44 million payments was in the form of assignments, your Honor.
*PJ GARCHITORENA
*Q The question of the Court is, before December 31, 1985, were there any
liquidations made by MIA against these escalation billings?
A I have not reviewed the details of the record, your Honor. But the ledger card
indicates that there were collections on page 2 of the Exhibit earlier presented. It
will indicate that there were collections shown by credits indicated on the credit side
of the ledger.
*AJ AMORES
*Q Your ledger does not indicate the manner of giving credit to the MIA with
respect to the escalation billings. Was the payment in cash or just credit
of some sort before December 31, 1985?
A Before December 31, 1985, the reference of the ledger are official receipts and I
suppose these were payments in cash, your Honor.
*Q Do you know how the manner of this payment in cash was made by MIA?
A I do not know, your Honor.
*PJ GARCHITORENA
*Q But your records will indicate that?
A The records will indicate that, your Honor.
*Q Except that you were not asked to bring them?
A Yes, your Honor.
*Q At all events, we are talking of settlement or partial liquidation prior to
December 31, 1985?
A Yes, your Honor.
*PJ GARCHITORENA
*Q Subsequent thereto, we are talking merely of about P44 million?
A Yes, your Honor, as subsequent settlements.
*Q After December 31, 1985?
A Yes, your Honor.

*Q And they have liquidated that, as you described it, by way of assignments,
adjustments, by offsets and by P2 million of cash payment?
A Yes, your Honor.
*AJ AMORES
*Q Your standard operating procedure before December 31, 1985 in
connection with or in case of cash payment, was the payment in cash or
check?
A I would venture to say it was by check, your Honor.
*Q Which is the safest way to do it?
A Yes, your Honor.
*PJ GARCHITORENA
*Q And the business way?
A Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q You mentioned earlier about the letter of former Minister Ongpin to the former
President Marcos, did you say that that letter concurs with the escalation billings
reflected in Exhibits 7 and 7-a?
WITNESS
A The Company or the management is of the opinion that this letter, a copy of which we
were able to get, is a confirmation of the acceptance of our billings, sir.
Q This letter of Minister Ongpin is dated January 7, 1985, whereas the entries of
escalation billings as appearing in Exhibit 7 are dated June 30, 1985, would you still
insist that the letter of January 1985 confirms the escalation billings as of June
1985?
A The entries started June 30 in the ledger card. And as of December 31, 1985, it stood
at P102 million after payments were made as shown on the credit side of the
ledger. I suppose hat the earlier amount, before the payment was made, was bigger
and therefore I would venture to say that the letter of January 7, 1985 contains an
amount that is part of the original contract account. What are indicated in the
ledger are escalation billings.
*PJ GARCHITORENA
*Q We are talking about the letter of Minister Ongpin?
A The letter of Minister Ongpin refers to escalation billings, sir.
*Q As of what date?
A The letter is dated January 7, 1985, your Honor.
PJ GARCHITORENA
Continue.
PROS. VIERNES
Q In accordance with this letter marked Exhibit 7 and 7-a, there were credits made in
favor of MIA in July and November until December 1985. These were properly
credited to the account of MIA?
WITNESS
A Yes, sir.
Q In 1986, from your records as appearing in Exhibit 7-a, there were no payments made
to PNCC by MIA for the months of January to June 1986?
A Yes, sir.
Q And neither was the amount of P22 million remitted to PNCC by MIA?
A Yes, sir.

PROS VIERNES
That will be all, your Honor.
PJ GARCHITORENA
Redirect?
ATTY ANDRES
No redirect, your Honor.
*PJ GARCHITORENA
Questions from the Court.
*AJ AMORES
*Q From your records, for the month of January 1986, there was no payment
of this escalation account by MIA?
WITNESS
A Yes, your Honor. But on page 2 of Exhibit 7 there appears an assignment of P23
million, that was on September 25, 1986.
*Q But that is already under the present administration?
A After February 1986, your Honor.
*Q But before February, in January 1986, there was no payment whatsoever by
MIA to PNCC?
A Per record there is none appearing, your Honor.
*PJ GARCHITORENA
*Q The earliest payment, whether by delivery of cash equivalent or of
adjustment of account, or by assignment, or by offsets, when did these
payments begin?
A Per ledger card, there were payments in 1985, prior to December 31, 1985, your
Honor.
*Q After December 31, 1985?
A There appears also P23 million as credit, that is a form of settlement, your Honor.
*Q This is as of September 25?
A Yes, your Honor. There were subsequent settlements. P23 million is just part of
the P44 million.
*Q And what you are saying is that, PNCC passed the account to State
Investment. In other words, State Investment bought the credit of MIA?
A Yes, your Honor.
*Q And the amount of credit or receivables sold by PNCC to State Investment
is P23 million?
A Yes, your Honor.
*Q Is there a payback agreement?
A I have a copy of the assignment to State Investment but I have not yet reviewed the
same, your Honor.
*AJ AMORES
*Q As of now, is this obligation of MIA, now NAIA, paid to PNCC?
A There is still a balance of receivables from MIA as evidenced by a collection letter by
our President dated July 6, 1988, your Honor. The amount indicated in the letter
is P55 million.
PJ GARCHITORENA
Any clarifications you would like to make Mr. Estebal?
ATTY ESTEBAL
None, your Honor.
PJ GARCHITORENA
Mr. Viernes?

PROS VIERNES
No more, your Honor.
PJ GARCHITORENA
The witness is excused. Thank you very much Mr. Monera. x x x.[41]
(TABUENA)
(In his direct examination, he testified that he caused the preparation of the
checks totalling P55 Million pursuant to the MARCOS Memorandum and that he
thereafter delivered said amount in cash on the three (3) dates as alleged in the
information to Marcos private secretary Mrs. Jimenez at her office at Aguado Street,
who thereafter issued a receipt. Tabuena also denied having used the money for his
own personal use.)
CROSS-EXAMINATION BY PROS. VIERNES
Q The amount of P55 million as covered by the three (3) checks Mr. Tabuena, were
delivered on how many occasions?
A Three times, sir.
Q And so, on the first two deliveries, you did not ask for a receipt from Mrs. Gimenez?
A Yes, sir.
Q It was only on January 30, 1986 that this receipt Exhibit 3 was issued by Mrs.
Gimenez?
A Yes, sir.
*PJ GARCHITORENA
*Q So January 30 is the date of the last delivery?
A I remember it was on the 31st of January, your Honor. What happened is that, I did not
notice the date placed by Mrs. Gimenez.
*Q Are you telling us that this Exhibit 3 was incorrectly dated?
A Yes, your Honor.
*Q Because the third delivery was on January 31st and yet the receipt was
dated January 30?
A Yes, your Honor.
*Q When was Exhibit 3 delivered actually by Mrs. Gimenez?
A January 31st, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q You did not go to Malacaang on January 30, 1986?
A Yes, sir, I did not.
Q Do you know at whose instance this Exhibit 3 was prepared?
A I asked for it, sir.
Q You asked for it on January 31, 1986 when you made the last delivery?
A Yes, sir.
Q Did you see this Exhibit 3 prepared in the Office of Mrs. Gimenez?
A Yes, sir.
Q This receipt was typewritten in Malacaang stationery. Did you see who typed this
receipt?
A No, sir. What happened is that, she went to her room and when she came out she
gave me that receipt.
*PJ GARCHITORENA
*Q What you are saying is, you do not know who typed that receipt?
WITNESS
A Yes, your Honor.

*Q Are you making an assumption that she typed that receipt?

A Yes, your Honor, because she knows how to type.
*Q Your assumption is that she typed it herself?
A Yes, your Honor.
PJ GARCHITORENA
Proceed.
PROS. VIERNES
Q This receipt was prepared on January 31, although it is dated January 30?
A Yes, sir, because I was there on January 31st.
Q In what particular place did Mrs. Gimenez sign this Exhibit 3?
A In her office at Aguado, sir.
Q Did you actually see Mrs. Gimenez signing this receipt Exhibit 3?
A No, sir, I did not. She was inside her room.
Q So, she was in her room and when she came out of the room, she handed this receipt
to you already typed and signed?
A Yes, sir.
*AJ HERMOSISIMA
*Q So, how did you know this was the signature of Mrs. Gimenez?
WITNESS
A Because I know her signature, your Honor. I have been receiving letters from her also
and when she requests for something from me. Her writing is familiar to me.
*Q So, when the Presiding Justice asked you as to how you knew that this was the
signature of Mrs. Gimenez and you answered that you saw Mrs. Gimenez signed it,
you were not exactly truthful?
A What I mean is, I did not see her sign because she went to her room and when she
came out, she gave me that receipt, your Honor.
PJ GARCHITORENA
That is why you have to wait for the question to be finished and listen to it
carefully. Because when I asked you, you said you saw her signed it. Be careful Mr.
Tabuena.
WITNESS
Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q Was there another person inside the office of Mrs. Gimenez when she gave you this
receipt Exhibit 3?
A Nobody, sir.
Q I noticed in this receipt that the last delivery of the sum of P55 million was made on
January 30. Do we understand from you that this date January 30 is erroneous?
A Yes, sir, that January 30 is erroneous. I noticed it only afterwards. This should be
January 31st, sir.
PROS VIERNES
That will be all, your Honor.
PJ GARCHITORENA
Redirect?
ATTY. ANDRES
No redirect, your Honor.
*PJ GARCHITORENA
Questions from the Court.

*AJ HERMOSISIMA
*Q Why did you not ask for a receipt on the first and second deliveries?
A Because I know that the delivery was not complete yet, your Honor.
*PJ GARCHITORENA
*Q So you know that the total amount to be delivered was P55 million?
A Yes, your Honor.
PJ GARCHITORENA
Response by Mr. Peralta to the testimony of Mr. Tabuena.
ATTY. ESTEBAL
We are adopting the testimony of Mr. Tabuena and we will also present the accused,
your Honor.
*AJ DEL ROSARIO
*Q From whom did you receive the Presidents memorandum marked Exhibit 1? Or more
precisely, who handed you this memorandum?
A Mrs. Fe Roa Gimenez, your Honor.
*Q Did you ask Mrs. Fe Gimenez for what purpose the money was being asked?
A The money was in payment for the debt of the MIA Authority to PNCC, your Honor.
*Q If it was for the payment of such obligation why was there no voucher prepared to
cover such payment? In other words, why was the delivery of the money not
covered by any voucher?Calrky
A The instruction to me was to give it to the Office of the President, your Honor.
*PJ GARCHITORENA
*Q Be that as it may, why was there no voucher to cover this particular disbursement?
A I was just told to bring it to the Office of the President, your Honor.
*AJ DEL ROSARIO
*Q Was that normal procedure for you to pay in cash to the Office of the President for
obligations of the MIAA in payment of its obligation to another entity?
WITNESS
A No, your Honor, I was just following the Order to me of the President.
*PJ GARCHITORENA
*Q So the Order was out of the ordinary?
A Yes, your Honor.
*AJ DEL ROSARIO
*Q Did you file any written protest with the manner with which such payment was being
ordered?
A No, your Honor.
*Q Why not?
A Because with that instruction of the President to me, I followed, your Honor.
*Q Before receiving this memorandum Exhibit 1, did the former President Marcos
discuss this matter with you?
A Yes, your Honor.
*Q When was that?
A He called me up earlier, a week before that, that he wants to me pay what I owe the
PNCC directly to his office in cash, your Honor.
*PJ GARCHITORENA
*Q By I OWE, you mean the MIAA?
WITNESS
A Yes, your Honor.
*AJ DEL ROSARIO
*Q And what did you say in this discussion you had with him?

A I just said, Yes, sir, I will do it/

*Q Were you the one who asked for a memorandum to be signed by him?
A No, your Honor.
*Q After receiving that verbal instruction for you to pay MIAAs obligation with PNCC, did
you not on your own accord already prepare the necessary papers and documents
for the payment of that obligation?
A He told me verbally in the telephone that the Order for the payment of that obligation
is forthcoming, your Honor. I will receive it.
*Q Is this the first time you received such a memorandum from the President?
A Yes, your Honor.
*Q And was that the last time also that you received such a memorandum?
A Yes, your Honor.
*Q Did you not inquire, if not from the President, at least from Mrs. Gimenez why this
procedure has to be followed instead of the regular procedure?
A: No, sir.
*AJ DEL ROSARIO
*Q Why did you not ask?
A I was just ordered to do this thing, your Honor.
*AJ HERMOSISIMA
*Q You said there was an I OWE YOU?
A Yes, your Honor.
*Q Where is that I OWE YOU now?
A All I know is that we owe PNCC the amount of P99.1 million, your Honor. MIAA owes
PNCC that amount.
*Q Was this payment covered by receipt from the PNCC?
A It was not covered, your Honor.
*Q So the obligation of MIAA to PNCC was not, for the record, cancelled by virtue of that
payment?
A Based on the order to me by the former President Marcos ordering me to pay that
amount to his office and then the mechanics will come after, your Honor.
*Q Is the PNCC a private corporation or government entity?
A I think it is partly government, your Honor.
*PJ GARCHITORENA
*Q That is the former CDCP?
A Yes, your Honor.
*AJ HERMOSISIMA
*Q Why were you not made to pay directly to the PNCC considering that you are the
Manager of MIA at that time and the PNCC is a separate corporation, not an adjunct
of Malacaang?
WITNESS
A I was just basing it from the Order of Malacaang to pay PNCC through the Office of the
President, your Honor.
*Q Do you know the President or Chairman of the Board of PNCC?
A Yes, your Honor.
*Q How was the obligation of MIAA to PNCC incurred. Was it through the President or
Chairman of the Board?
A PNCC was the one that constructed the MIA, your Honor.
*Q Was the obligation incurred through the President or Chairman of the Board or
President of the PNCC? In other words, who signed the contract between PNCC and
MIAA?

A Actually, we inherited this obligation, your Honor. The one who signed for this was the
former Director of BAT which is General Singzon. Then when the MIA Authority was
formed, all the obligations of BAT were transferred to MIAA. So the accountabilities
of BAT were transferred to MIAA and we are the ones that are going to pay, your
Honor.
*Q Why did you agree to pay to Malacaang when your obligation was with the PNCC?
A I was ordered by the President to do that, your Honor.
*Q You agreed to the order of the President notwithstanding the fact that this was not
the regular course or Malacaang was not the creditor?
A I saw nothing wrong with that because that is coming from the President, your Honor.
*Q The amount was not a joke, amounting to P55 million, and you agreed to deliver
money in this amount through a mere receipt from the private secretary?
A I was ordered by the President, your Honor.
*PJ GARCHITORENA
*Q There is no question and it can be a matter of judicial knowledge that you have been
with the MIA for sometime?
A Yes, your Honor.
*Q Prior to 1986?
A Yes, your Honor.
*Q Can you tell us when you became the Manager of MIA?
A I became Manager of MIA way back, late 1968, your Honor.
*Q Long before the MIA was constituted as an independent authority?
A Yes, your Honor.
*PJ GARCHITORENA
*Q And by 1986, you have been running the MIA for 18 years?
WITNESS
A Yes, your Honor.
*Q And prior to your joining the MIA, did you ever work for the government?
A No, your Honor.
*Q So, is it correct for us to say that your joining the MIA in 1968 as its Manager was
your first employment with the government?
A Yes, your Honor.
*Q While you were Manager of MIA, did you have other subsequent concurrent positions
in the government also?
A I was also the Chairman of the Games and Amusement Board, your Honor.
*Q But you were not the executive or operating officer of the Games and Amusement
Board?
A I was, your Honor.
*Q As Chairman you were running the Games and Amusement Board?
A Yes, your Honor.
*Q What else, what other government positions did you occupy that time?
A I was also Commissioner of the Game Fowl Commission, your Honor.
*PJ GARCHITORENA
*Q That is the cockfighting?
WITNESS
A Yes, your Honor.
*Q Here, you were just a member of the Board?
A Yes, your Honor.
*Q So you were not running the commission?
A Yes, your Honor.

*Q Any other entity?

A No more, your Honor.
*Q As far as you can recall, besides being the Manager of the MIA and later the MIAA for
approximately 18 years, you also ran the Games and Amusement Board as its
executive officer?
A Yes, your Honor.
*Q And you were a commissioner only of the Game Fowl Commission?
A Yes, your Honor.
*Q Who was running the commission at that time?
A I forgot his name, but he retired already, your Honor.
*Q All of us who joined the government, sooner or later, meet with our Resident COA
representative?
A Yes, your Honor.
*PJ GARCHITORENA
*Q And one of our unfortunate experience (sic) is when the COA Representative comes
to us and says: Chairman or Manager, this cannot be. And we learn later on that
COA has reasons for its procedure and we learn to adopt to them?
WITNESS
A Yes, your Honor.
*Q As a matter of fact, sometimes we consider it inefficient, sometimes we consider it
foolish, but we know there is reason in this apparent madness of the COA and so we
comply?
A Yes, your Honor.
*Q And more than anything else the COA is ever anxious for proper documentation and
proper supporting papers?
A Yes, your Honor.
*Q Sometimes, regardless of the amount?
A Yes, your Honor.
*Q Now, you have P55 million which you were ordered to deliver in cash, not to the
creditor of the particular credit, and to be delivered in armored cars to be
acknowledged only by a receipt of a personal secretary. After almost 18 years in the
government service and having had that much time in dealing with COA people, did
it not occur to you to call a COA representative and say, What will I do here?
A I did not, your Honor.
*PJ GARCHITORENA
*Q Did you not think that at least out of prudence, you should have asked the COA for
some guidance on this matter so that you will do it properly?
WITNESS
A What I was going to do is, after those things I was going to tell that delivery ordered
by the President to the COA, your Honor.
*Q That is true, but what happened here is that you and Mr. Dabao or you and Mr.
Peralta signed requests for issuance of Managers checks and you were
accommodated by the PNB Office at Nichols without any internal documentation to
justify your request for Managers checks?
A Yes, your Honor.
*Q Of course we had no intimation at that time that Mr. Marcos will win the elections but
even then, the Daily Express, which was considered to be a newspaper friendly to
the Marcoses at that time, would occasionally come with so-called expose, is that
not so?
A Yes, your Honor.

*Q And worst, you had the so-called mosquito press that would always come out with
the real or imagined scandal in the government and place it in the headline, do you
recall that?
A Yes, your Honor.
*PJ GARCHITORENA
*Q Under these circumstances, did you not entertain some apprehension that some
disloyal employees might leak you out and banner headline it in some mosquito
publications like the Malaya at that time?
WITNESS
A No, your Honor.
*PJ GARCHITORENA
I bring this up because we are trying to find out different areas of fear. We are in the
government and we in the government fear the COA and we also fear the press. We
might get dragged into press releases on the most innocent thing. You believe that?
A Yes, your Honor.
*Q And usually our best defense is that these activities are properly documented?
A Yes, your Honor.
*Q In this particular instance, your witnesses have told us about three (3) different trips
from Nichols to Aguado usually late in the day almost in movie style fashion. I
mean, the money being loaded in the trunk of your official car and then you had a
back-up truck following your car?
A Yes, your Honor.
*Q Is that not quite a fearful experience to you?
A I did not think of that at that time, your Honor.
*PJ GARCHITORENA
*Q You did not think it fearful to be driving along Roxas Boulevard with P25 million in the
trunk of your car?
WITNESS
A We have security at that time your Honor.
ATTY. ANDRES
Your Honor, the P25 million was in the armored car; only P5 million was in the trunk of
his car.
*PJ GARCHITORENA
Thank you for the correction. Even P1 million only. How much more with P5 million
inside the trunk of your car, was that not a nervous experience?
A As I have said, your Honor, I never thought of that.
PJ GARCHITORENA
Thank you very much, Mr. Tabuena. You are excused. x x x.[42]
(PERALTA)
(He testified on direct examination that he co-signed with Tabuena a
memorandum request for the issuance of the Managers Check for P5 Million upon
order of Tabuena and that he [Peralta] was aware that MIAA had an existing
obligation with PNCC in the amount of around P27 Million. He affirmed having
accompanied Tabuena at the PNB Villamor Branch to withdraw the P5 Million, but
denied having misappropriated for his own benefit said amount or any portion
thereof.)
CROSS-EXAMINATION BY PROS VIERNES
Q Will you please tell the Honorable Court why was it necessary for you to co-sign with
Mr. Tabuena the request for issuance of Managers check in the amount of P5
million?

A At that time I was the Acting Financial Services Manager of MIAA, sir, and all
withdrawals of funds should have my signature because I was one of the signatories
at that time.
Q As Acting Financial Services Manager of MIAA, you always co-sign with Mr. Tabuena in
similar requests for the issuance of Managers checks by the PNB?
A That is the only occasion I signed, sir.
Q Did you say you were ordered by Mr. Tabuena to sign the request?
A Yes, sir, and I think the order is part of the exhibits. And based on that order, I cosigned in the request for the issuance of Managers check in favor of Mr. Luis
Tabuena.
PROS VIERNES
Q Was there a separate written order for you to co-sign with Mr. Tabuena?
WITNESS
A Yes, sir, an order was given to me by Mr. Tabuena.
*PJ GARCHITORENA
Was that marked in evidence?
WITNESS
Yes, your Honor.
*PJ GARCHITORENA
What exhibit?
WITNESS
I have here a copy, your Honor. This was the order and it was marked as exhibit N.
PROS VIERNES
It was marked as Exhibit M, your Honor.
Q How did you know there was an existing liability of MIAA in favor of PNCC at that
time?
A Because prior to this memorandum of Mr. Tabuena, we prepared the financial
statement of MIAA as of December 31, 1985 and it came to my attention that there
was an existing liability of around P27,999,000.00, your Honor.
Q When was that Financial Statement prepared?
A I prepared it around January 22 or 24, something like that, of 1986, sir.
Q Is it your usual practice to prepare the Financial Statement after the end of the year
within three (3) weeks after the end of the year?
A Yes, sir, it was a normal procedure for the MIAA to prepare the Financial Statement on
or before the 4th Friday of the month because there will be a Board of Directors
Meeting and the Financial Statement of the prior month will be presented and
discussed during the meeting.
*PJ GARCHITORENA
*Q This matter of preparing Financial Statement was not an annual activity but a
monthly activity?
A Yes, your Honor.
*Q This Financial Statement you prepared in January of 1986 recapitulated the financial
condition as of the end of the year?
A Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q You made mention of a request for Escalation Clause by former Minister Ongpin. Did
you personally see that request?

A When this order coming from Mr. Tabuena was shown to me, I was shown a copy, sir. I
have no file because I just read it.
Q It was Mr. Tabuena who showed you the letter of Minister Ongpin?
A Yes, sir.
*PJ GARCHITORENA
And that will be Exhibit?
ATTY. ANDRES
Exhibit 2 and 2-A, your Honor.
PROS VIERNES
Q You also stated that you were with Mr. Tabuena when you withdrew the amount of P5
million from the PNB Extension Office at Villamor?
A Yes, sir.
Q Why was it necessary for you to go with him on that occasion?
A Mr. Tabuena requested me to do the counting by million, sir. So what I did was to
bundle count the P5 million and it was placed in two (2) peerless boxes.
Q Did you actually participate in the counting of the money by bundles?
A Yes, sir.
Q Bundles of how much per bundle?
A If I remember right, the bundles consisted of P100s and P50s, sir.
Q No P20s and P10s?
A Yes, sir, I think it was only P100s and P50s.
*PJ GARCHITORENA
*Q If there were other denominations, you can not recall?
A Yes, your Honor.
PROS VIERNES
Q In how many boxes were those bills placed?
A The P5 million were placed in two (2) peerless boxes, sir.
Q And you also went with Mr. Tabuena to Aguado?
A No, sir, I was left behind at Nichols. After it was placed at the trunk of the car of Mr.
Tabuena, I was left behind and I went back to my office at MIA.
Q But the fact is that, this P5 million was withdrawn at passed 5:00 oclock in the
afternoon?
A I started counting it I think at around 4:30, sir. It was after office hours. But then I was
there at around 4:00 oclock and we started counting at around 4:30 p.m. because
they have to place it in a room, which is the office of the Manager at that time.
Q And Mr. Tabuena left for Malacaang after 5:00 oclock in the afternoon of that date?
A Yes, sir. After we have counted the money, it was placed in the peerless boxes and Mr.
Tabuena left for Malacaang.
PROS VIERNES
Q And you yourself, returned to your office at MIA?
WITNESS
A Yes, sir.
Q Until what time do you hold office at the MIA?
A Usually I over-stayed for one (1) or two (2) hours just to finish the paper works in the
office, sir.
Q So, even if it was already after 5:00 oclock in the afternoon, you still went back to
your office at MIA?
A Yes, sir.
PROS VIERNES
That will be all, your Honor.

PJ GARCHITORENA
Redirect?
ATTY. ESTEBAL
No redirect, your Honor.
*PJ GARCHITORENA
Questions from the Court.
*AJ DEL ROSARIO
*Q Did you not consider it as odd that your obligation with the PNCC had to be paid in
cash?
WITNESS
A Based on the order of President Marcos that we should pay in cash, it was not based
on the normal procedure, your Honor.
*Q And, as Acting Financial Services Manager, you were aware that all disbursements
should be covered by vouchers?
A Yes, your Honor, the payments should be covered by vouchers. But then, inasmuch as
what we did was to prepare a request to the PNB, then this can be covered by
Journal Voucher also.
*Q Was such payment of P5 million covered by a Journal Voucher?
A Yes, your Honor.
*Q Did you present that Journal Voucher here in Court?
A We have a copy, your Honor.
*Q Do you have a copy or an excerpt of that Journal Voucher presented in Court to show
that payment?
A We have a copy of the Journal Voucher, your Honor.
*Q Was this payment of P5 million ever recorded in a cashbook or other accounting
books of MIAA?
A The payment of P5 million was recorded in a Journal Voucher, your Honor.
*PJ GARCHITORENA
*Q In other words, the recording was made directly to the Journal?
WITNESS
A Yes, your Honor.
*Q There are no other separate documents as part of the application for Managers
Check?
A Yes, your Honor, there was none.
*AJ DEL ROSARIO
*Q After the payment was made, did your office receive any receipt from PNCC?
A I was shown a receipt by Mr. Tabuena, the receipt given by Mrs. Fe Roa Gimenez, your
Honor. Inasmuch as the payment should be made through the Office of the
president, I accepted the receipt given by Mrs. Fe Gimenez to Mr. Tabuena.
*Q After receiving that receipt, did you prepare the necessary supporting documents,
vouchers, and use that receipt as a supporting document to the voucher?
A Your Honor, a Journal Voucher was prepared for that.
*Q How about a disbursement voucher?
A Inasmuch as this was a request for Managers check, no disbursement voucher was
prepared, your Honor.
*AJ DEL ROSARIO
*Q Since the payment was made on January 31, 1986, and that was very close to the
election held in that year, did you not entertain any doubt that the amounts were
being used for some other purpose?
ATTY. ESTEBAL

With due respect to the Honorable Justice, we are objecting to the question on the
ground that it is improper.
*AJ DEL ROSARIO
I will withdraw the question.
*PJ GARCHITORENA
What is the ground for impropriety?
ATTY. ESTEBAL
This is not covered in the direct examination, and secondly, I dont think there was any
basis, your Honor.
*PJ GARCHITORENA
Considering the withdrawal of the question, just make the objection on record.
*AJ HERMOSISIMA
*Q As a Certified Public Accountant and Financial Manager of the MIAA, did you not
consider it proper that a check be issued only after it is covered by a disbursement
voucher duly approved by the proper authorities?
A Your Honor, what we did was to send a request for a Managers check to the PNB
based on the request of Mr. Tabuena and the order of Mr. Tabuena was based on the
Order of President Marcos.
*PJ GARCHITORENA
*Q In your capacity as Financial Services Manager of the MIAA, did you not think it
proper to have this transaction covered by a disbursement voucher?
WITNESS
A Based on my experience, payments out of cash can be made through cash vouchers,
or even though Journal Vouchers, or even through credit memo, your Honor.
*AJ HERMOSISIMA
*Q This was an obligation of the MIAA to the PNCC. Why did you allow a disbursement
by means of check in favor of Mr. Luis Tabuena, your own manager?
A We based the payment on the order of Mr. Tabuena because that was the order of
President Marcos to pay PNCC through the Office of the President and it should be
paid in cash, your Honor.
*Q You are supposed to pay only on legal orders. Did you consider that legal?
ATTY. ESTEBAL
With due respect to the Honorable Justice, the question calls for a conclusion of the
witness.
*PJ GARCHITORENA
Considering that the witness is an expert, witness may answer.
WITNESS
A The order of president Marcos was legal at that time because the order was to pay
PNCC the amount of P5 million through the Office of the President and it should be
paid in cash, your Honor. And at that time, I know for a fact also that there was an
existing P.D. wherein the President of the Republic of the Philippines can transfer
funds from one office to another and the PNCC is a quasi government entity at that
time.
*AJ HERMOSISIMA
*Q Are you saying that this transaction was made on the basis of that P.D. which you
referred to?
A I am not aware of the motive of the President, but then since he is the President of the
Philippines, his order was to pay the PNCC through the Office of the President, your
Honor.

*Q As Financial Manager, why did you allow a payment in cash when ordinarily payment
of an obligation of MIAA is supposed to be paid in check?
A I caused the payment through the name of Mr. Tabuena because that was the order of
Mr. Tabuena and also he received an order coming from the President of the
Philippines at that time, your Honor.
*PJ GARCHITORENA
*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain
statements of accounts earlier made in the same journal?
In other words, really what you are telling us is that, a Journal Voucher is to explain a
transaction was otherwise not recorded.
WITNESS
A Yes, your Honor.
*Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is
proper only because of the exceptional nature of the transactions?
A Yes, your Honor.
*Q In other words, as an Accountant, you would not normally authorize such a
movement of money unless it is properly documented?
ATTY. ESTEBAL
With due respect to the Honorable Presiding Justice, I think the question is misleading
because what the witness stated is...
*PJ GARCHITORENA
Be careful in your objection because the witness understands the language you are
speaking, and therefore, you might be coaching him.
ATTY. ESTEBAL
No, your Honor. I am also an accountant that is why I could say that...
*PJ GARCHITORENA
Please be simple in your objection.
ATTY. ESTEBAL
The question is misleading on the ground that what the witness stated earlier is that the
Journal Voucher in this particular case was supported, your Honor.
*PJ GARCHITORENA
Overruled, may answer.
WITNESS
A The transaction was fully documented since we have the order of the General
Manager at that time and the order of President Marcos, your Honor.
*Q Are you saying the Order of the General Manager is an adequate basis for the
movement of money?
A Yes, your Honor, because at that time we have also a recorded liability of P27 million.
*Q We are not talking of whether or not there was a liability. What we are saying is, is
the order of the General Manager by itself adequate with no other supporting
papers, to justify the movement of funds?
A Yes, your Honor. The order of Mr. Luis Tabuena was based on our existing liability
of P27,931,000.00, inasmuch as we have that liability and I was shown the order of
President Marcos to pay P5 million through the Office of the President, I considered
the order of Mr. Luis Tabuena, the order of President Marcos and also the existing
liability of P27 million sufficient to pay the amount of P5 million. Inasmuch as there
is also an escalation clause of P99.1 million, the payment of P5 million is fully
covered by those existing documents.
*PJ GARCHITORENA

You keep flooding us with details we are not asking for. We are not asking you whether
or not there was valid obligation. We are not asking you about the escalation
clause. We are asking you whether or not this particular order of Mr. Tabuena is an
adequate basis to justify the movement of funds?
WITNESS
When we pay, your Honor, we always look for the necessary documents and at that
time I know for a fact that there was this existing liability.
*PJ GARCHITORENA
When we ask questions and when we answer them, we must listen to the question
being asked and not to whatever you wanted to say. I know you are trying to protect
yourself. We are aware of your statement that there are all of these memoranda.
*Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena
by itself is adequate?
WITNESS
A As far as I am concerned, your Honor, inasmuch as we have a liability and I was
shown the Order of President Marcos to pay PNCC through his office, I feel that the
order of the General Manager, the order of President Marcos, and also the
memorandum of Minister Ongpin are sufficient to cause the payment of P5 million.
*PJ GARCHITORENA
*Q This Presidential Decree which authorizes the President to transfer funds from one
department to another, is this not the one that refers to the realignment of funds
insofar as the Appropriation Act is concerned?
WITNESS
A Because at that time, your Honor, I have knowledge that the President is authorized
through a Presidential Decree to transfer government funds from one office to
another.
*PJ GARCHITORENA
*Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the
Appropriation Act?
A I think the liability was duly recorded and appropriations to pay the amount is.....
(interrupted)
*PJ GARCHITORENA
*Q Tell me honestly, is your answer responsive to the question or are you just throwing
words at us in the hope that we will forget what the question is?
A No, your Honor.
*Q Are you telling us that the debts incurred by MIAA are covered by the Appropriations
Act so that the payment of this debt would be in the same level as the realignment
of funds authorized the President? Or are you telling as you did not read the
Decree?
A I was aware of that Decree, your Honor.
*PJ GARCHITORENA
Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this
movement of funds?
ATTY. ESTEBAL
Yes, your Honor.
*PJ GARCHITORENA
*Q It is true that President Marcos was the President, but he was not an officer of the
MIAA, was he?
A No, your Honor.

*Q In fact, for purposes of internal control, you have different officers and different
officials in any company either government or private, which are supposed to check
and balance each other, is it not?
A Yes, your Honor.
*Q So that when disbursements of funds are made, they are made by authority of not
only one person alone so that nobody will restrain him?
A Yes, your Honor.
*Q These checks and balances exist in an entity so that no one person can dispose of
funds in any way he likes?
A Yes, your Honor.
*Q And in fact, the purpose for having two (2) signatories to documents and negotiable
documents is for the same purpose?
A Yes, your Honor.
*PJ GARCHITORENA
*Q In other words, the co-signatories counter check each other?
WITNESS
A Yes, your Honor.
*Q In your case, you would be the counter check for Mr. Tabuena?
A Yes, your Honor.
*Q In other words, even if Mr. Tabuena is the Manager, you as Financial Services
Manager and as counter signatory are in a position to tell Mr. Tabuena, I am sorry,
you are my superior but this disbursement is not proper and, therefore, I will not
sign it., if in your opinion the disbursement is not proper?
A Yes, your Honor.
*Q Therefore, as co-signatory, you are expected to exercise your judgment as to the
propriety of a particular transaction?
A Yes, your Honor.
*Q And this is something you know by the nature of your position and because you are a
Certified Public Accountant?
A Yes, your Honor.
*AJ DEL ROSARIO
*Q You admit that the payment of P5 million and P50 million were unusual in the
manner with which they were disposed?
A Yes, your Honor.
*Q Did you submit a written protest to the manner in which such amount was being
disposed of?
A A written protest was not made, your Honor, but I called the attention of Mr. Tabuena
that since this payment was upon the order of President Marcos, then I think as
President he can do things which are not ordinary.
*Q If you did not prepare a written protest, did you at least prepare a memorandum for
the record that this was an extra-ordinary transaction?
A I called the attention of Mr. Tabuena that this was an extra-ordinary transaction and
no written note, your Honor.
PJ GARCHITORENA
Thank you very much Mr. Peralta, you are excused. x x x. [43]
This Court has acknowledged the right of a trial judge to question witnesses
with a view to satisfying his mind upon any material point which presents itself
during the trial of a case over which he presides.[44]But not only should his
examination be limited to asking clarificatory questions,[45] the right should be
sparingly and judiciously used; for the rule is that the court should stay out of it as

much as possible, neither interfering nor intervening in the conduct of the trial .
[46]
Here, these limitations were not observed. Hardly in fact can one avoid the
impression that the Sandiganbayan had allied itself with, or to be more precise, had
taken the cudgels for the prosecution in proving the case against Tabuena and
Peralta when the Justices cross-examined the witnesses, their cross-examinations
supplementing those made by Prosecutor Viernes and far exceeding the latters
questions in length. The cold neutrality of an impartial judge requirement of due
process was certainly denied Tabuena and Peralta when the court, with its
overzealousness, assumed the dual role of magistrate and advocate. In this
connection, the observation made in the Dissenting Opinion to the effect that the
majority of this Court was unduly disturbed with the number of court questions
alone, is quite inaccurate. A substantial portion of the TSN was incorporated in the
majority opinion not to focus on numbers alone, but more importantly to show that
the court questions were in the interest of the prosecution and which thus
depart from that common standard of fairness and impartiality. In fact, it is very
difficult to be, upon review of the records, confronted with numbers without
necessarily realizing the partiality of the Court. In US v. De Sisto (2 Cir., 1961, 289 F
2d 833), for example, a new trial was required because the trial judge, as in this
case, indulged in extensive questioning of defendant and his witnesses, and the
reviewing court also had to amplify on numbers to bolster this. It was pointed out in
the De Sisto case that the judge asked 3,115 questions of all witnesses, the
prosecutor asked but 1,381, defense counsel 3,330. The judges questions to the
defendant De Sisto totalled 306, the prosecutors 347, and the defense counsels,
201. After referring to these figures, the court stated:
. . . It is indeed an impressive proportion, but no such mathematical computation is
of itself determinative. However, taking all this in conjunction with the long and
vigorous examination of the defendant himself by the judge, and the repeated
belittling by the judge of defendants efforts to establish the time that Fine left the
pier, we fear that in its zeal for arriving at the facts the court here conveyed to the
jury too strong an impression of the courts belief in the defendants probable guilt to
permit the jury freely to perform its own function of independent determination of
the facts. x x x
The majority believes that the interference by the Sandiganbayan Justices was
just too excessive that it cannot be justified under the norm applied to a jury trial, or
even under the standard employed in a non-jury trial where the judge is admittedly
given more leeway in propounding questions to clarify points and to elicit additional
relevant evidence. At the risk of being repetitious, we will amplify on this via some
specific examples. Based on the evidence on record, and on the admission of
Tabuena himself, the P55 million was delivered to the Presidents Office thru Mrs.
Gimenez, in obedience to the Presidential directive. One Sandiganbayan Justice,
however, hurled the following questions to Peralta:
AJ DEL ROSARIO
Q: Since the payment was made on January 31, 1986, and that was very close to the
election held in that year, did you not entertain any doubt that the amounts
were being used for some other purposes?
ATTY. ESTEBAL
With due respect to the Honorable Justice, We are objecting to the question on the grou
nd that it is
improper.
AJ DEL ROSARIO

I will withdraw the question.

PJ GARCHITORENA
What is the ground for impropriety?
ATTY. ESTEBAL
This is not covered in the direct examination, and secondly, I dont think there was
any basis, Your Honor.
PJ GARCHITORENA
Considering the withdrawal of the question, just make the objection on record.
Nothing from the preceding questions of counsels or of the court would serve as
basis for this question. How then, can this be considered even relevant? What is the
connection between the payment made to the Presidents office and the then
forthcoming presidential snap election? In another instance, consider the following
questions of Presiding Justice Garchitorena:
*PJ GARCHITORENA
*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain
statements of accounts earlier made in the same journal?
xxx
*Q In other words, really what you are telling us is that, a Journal Voucher is to explain a
transaction was otherwise not recorded.
xxx
*Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is
proper only because of the exceptional nature of the transactions?
xxx
*Q In other words, as an Accountant, you would not normally authorize such a
movement of money unless it is properly documented?
ATTY. ESTEBAL
With due respect to the Honorable Presiding Justice, I think the question is misleading
because what the witness stated is...
*PJ GARCHITORENA
Be careful in your objection because the witness understands the language you are
speaking, and therefore, you might be coaching him.
ATTY. ESTEBAL
No, your Honor. I am also an accountant that is why I could say that...
*PJ GARCHITORENA
Please be simple in your objection.
ATTY. ESTEBAL
The question is misleading on the ground that what the witness stated earlier is that the
Journal Voucher in this particular case was supported, your Honor.
*PJ GARCHITORENA
Overruled, may answer.
WITNESS
A The transaction was fully documented since we have the order of the General
Manager at that time and the order of President Marcos, your Honor.
*Q Are you saying the Order of the General Manager is an adequate basis for the
movement of money?
*Q We are not talking of whether or not there was a liability. What we are saying is, is
the order of the General Manager by itself adequate with no other supporting
papers, to justify the movement of funds?
*PJ GARCHITORENA

You keep flooding us with details we are not asking for. We are not asking you whether
or not there was valid obligation. We are not asking you about the escalation
clause. We are asking you whether or not this particular order of Mr. Tabuena is an
adequate basis to justify the movement of funds?
*PJ GARCHITORENA
When we ask questions and when we answer them, we must listen to the question
being asked and not to whatever you wanted to say. I know you are trying to protect
yourself. We are aware of your statement that there are all of these memoranda.
*Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena
by itself is adequate?
*PJ GARCHITORENA
*Q This Presidential Decree which authorizes the President to transfer funds from one
department to another, is this not the one that refers to the realignment of funds
insofar as the Appropriation Act is concerned?
*PJ GARCHITORENA
*Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the
Appropriation Act?
*PJ GARCHITORENA
*Q Tell me honestly, is your answer responsive to the question or are you just throwing
words at us in the hope that we will forget what the question is?
xxx
*Q Are you telling us that the debts incurred by MIAA are covered by the Appropriations
Act so that the payment of this debt would be in the same level as the realignment
of funds authorized the President? Or are you telling as you did not read the
Decree?
*PJ GARCHITORENA
Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this
movement of funds?
ATTY. ESTEBAL
Yes, your Honor.
*PJ GARCHITORENA
*Q It is true that President Marcos was the President, but he was not an officer of the
MIAA, was he?
*Q In fact, for purposes of internal control, you have different officers and different
officials in any company either government or private, which are supposed to check
and balance each other, is it not?
*Q So that when disbursements of funds are made, they are made by authority of not
only one person alone so that nobody will restrain him?
*Q These checks and balances exist in an entity so that no one person can dispose of
funds in any way he likes?
*Q And in fact, the purpose for having two (2) signatories to documents and negotiable
documents is for the same purpose?
*PJ GARCHITORENA
*Q In other words, the co-signatories counter check each other?
*Q In your case, you would be the counter check for Mr. Tabuena?
*Q In other words, even if Mr. Tabuena is the Manager, you as Financial Services
Manager and as counter signatory are in a position to tell Mr. Tabuena, I am sorry,
you are my superior but this disbursement is not proper and, therefore, I will not
sign it., if in your opinion the disbursement is not proper?

*Q Therefore, as co-signatory, you are expected to exercise your judgment as to the

propriety of a particular transaction?
*Q And this is something you know by the nature of your position and because you are
a Certified Public Accountant?[47]
How can these questions be considered clarificatory when they clearly border
more on cross-examination questions? Thus, the Dissenting Opinions focus on the
distinction between the two kinds of trial to justify the Sandiganbayans active
participation in the examination of petitioners Tabuena and Peralta and witness
Monera, with due respect, appears insignificant to this case. Let it, therefore, be
emphasized anew that:
A trial judge should not participate in the examination of witnesses as to create the
impression that he is allied with the prosecution.[48]
We doubt not that the sole motive of the learned judge was to ascertain the truth of
the transaction, but it is never proper for a judge to discharge the duties of a
prosecuting attorney. However anxious a judge may be for the enforcement of the
law, he should always remember that he is as much judge in behalf of the
defendant accused of crime, and whose liberty is in jeopardy, as he is judge in
behalf of the state, for the purpose of safeguarding the interests of society.[49]
Ordinarily it is not good practice for the presiding judge himself to examine
witnesses at length. The circumstances may be such in a given case as to justify the
court in so doing....This court, however, has more than once said that the
examination of witnesses is the more appropriate function of counsel, and the
instances are rare and the conditions exceptional which will justify the presiding
judge in conducting an extensive examination. It is always embarrassing for counsel
to object to what he may deem improper questions by the court. Then, in
conducting a lengthy examination, it would be almost impossible for the judge to
preserve a judicial attitude. While he is not a mere figurehead or umpire in a trial,
and it is his duty to see that justice is done, he will usually not find it necessary to
conduct such examinations. The extent to which this shall be done must largely be a
matter of discretion, to be determined by the circumstances of each particular case,
but in so doing he must not forget the function of the judge and assume that of an
advocate....[50]
While it is true that the manner in which a witness shall be examined is largely in
the discretion of the trial judge, it must be understood that we have not adopted in
this country the practice of making the presiding judge the chief inquisitor. It is
better to observe our time-honored custom of orderly judicial procedure, even at the
expense of occasional delays....The judge is an important figure in the trial of a
cause, and while he has the right, and it is often his duty, to question witnesses to
the end that justice shall prevail, we can conceive of no other reason, for him to
take the trial of the cause out of the hands of counsel.[51]
The examination of witnesses is the more appropriate function of counsel, and it is
believed the instances are rare and the conditions exceptional in a high degree
which will justify the presiding judge in entering upon and conducting an extended
examination of a witness, and that the exercise of a sound discretion will seldom
deem such action necessary or advisable.[52]
He [the judge] may properly intervene in a trial of a case to promote expedition,
and prevent unnecessary waste of time, or to clear up some obscurity, but he
should bear in mind that his undue interference, impatience, or participation in the
examination of witnesses, or a severe attitude on his part toward witnesses,
especially those who are excited or terrified by the unusual circumstances of a trial,

may tend to prevent the proper presentation of the cause, or the ascertainment of
the truth in respect thereto.[53]
The impartiality of the judge his avoidance of the appearance of becoming the
advocate of either one side or the other of the pending controversy is a
fundamental and essential rule of special importance in criminal cases.... [54]
Our courts, while never unmindful of their primary duty to administer justice,
without fear or favor, and to dispose of these cases speedily and in as inexpensive a
manner as is possible for the court and the parties, should refrain from showing any
semblance of one-sided or more or less partial attitude in order not to create any
false impression in the minds of the litigants. For obvious reasons, it is the bounden
duty of all to strive for the preservation of the peoples faith in our courts. [55]
Time and again this Court has declared that due process requires no less than the
cold neutrality of an impartial judge. Bolstering this requirement, we have added
that the judge must not only be impartial but must also appear to be impartial, to
give added assurance to the parties that his decision will be just. The parties are
entitled to no less than this, as a minimum guaranty of due process.[56]
We are well aware of the fear entertained by some that this decision may set a
dangerous precedent in that those guilty of enriching themselves at the expense of
the public would be able to escape criminal liability by the mere expedient of
invoking good faith. It must never be forgotten, however, that we render justice on
a case to case basis, always in consideration of the evidence that is presented.
Thus, where the evidence warrants an acquittal, as in this case, we are mandated
not only by the dictates of law but likewise of conscience to grant the same. On the
other hand, it does not follow that all those similarly accused will necessarily be
acquitted upon reliance on this case as a precedent. For the decision in this case to
be a precedent, the peculiar circumstances and the evidence that led to the
petitioners acquittal must also be present in subsequent cases.
Furthermore, as between a mere apprehension of a dangerous precedent and an
actual violation of constitutionally enshrined rights, it is definitely the latter that
merits our immediate attention. For the most dangerous precedent arises when we
allow ourselves to be carried away by such fears so that it becomes lawful to
sacrifice the rights of an accused to calm the fearful. In our eagerness to bring to
justice the malefactors of the Marcos regime, we must not succumb to the
temptation to commit the greatest injustice of visiting the sins of the wrongdoers
upon an innocent.
WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena and
Adolfo M. Peralta are hereby ACQUITTED of the crime of malversation as defined
and penalized under Article 217 of the Revised Penal Code. The Sandiganbayan
Decision of October 12, 1990 and the Resolution dated December 20, 1991 are
REVERSED and SET ASIDE.
SO ORDERED.
Narvasa, C.J., Regalado, Bellosillo, Vitug, Kapunan, Mendoza, and Torres,
JJ., concur.
Padilla, Davide, Romero, Puno, and Panganiban, JJ., dissent.
Hermosisima, Jr., J., took no part being a signatory to SB decision.

[1]

Taken under Section 7 of P.D. 1606, as amended (the Sandiganbayan Law), Section 1,
Rule XIX of the Revised Rules of the Sandiganbayan and Rule 45 of the Rules of

[2]

[3]
[4]
[5]

Court. The petitions were ordered consolidated by the Court in an En

BancResolution dated October 1, 1992.
Promulgated on October 22, 1990; Rendered by the First Division then composed of
Justices Garchitorena (ponente), Hermosisima (now Associate Justice of this Court)
and Del Rosario.
Promulgated on January 10, 1992.
Records, Vol. I, p. 26.
Records, Vol. I, pp. 119-120.
[6]
Tabuena avers that the Sandiganbayan:
A
Erred and committed reviewable error in ruling that petitioners withdrawal of the
P55 Million was not for a lawful purpose or for a lawful debt. In the process,
the Sandiganbayan clearly ignored several pieces of evidence submitted by
petitioner, and instead misapprehended the full import of the Ongpin Memorandum
(Exh. 2, as attachment of Annex I), to which the Marcos order to pay referred (Exh.
1, attachment to Annex I). In so concluding, the Sandiganbayan laid its conclusions
open to review as its judgment is in effect based on misapprehension of facts
(Cruz vs. Sosing, L-4875, November 27, 1953); and in ignoring several material
pieces of evidence abused its discretion (Buyco vs. People, 51 OG 7927).
B
Erred and committed reviewable error in ruling that the Ongpin Memorandum (Exh.
2 and 2-A, See Annex I), and the Marcos approval thereof (Exh. 1, id.) did not
support the withdrawal and payment of monies by petitioner. In so concluding,
theSandiganbayan again clearly misapprehended the Ongpin and Marcos
Memoranda, and the ledger of PNCC.
C
Erred and committed reviewable error in ruling that petitioner was in bad faith when
he complied with the presidential order to pay; in thus concluding
the Sandiganbayan indulged in speculations and conjectures (Joaquin vs. Navarro,
93 Phil. 257), or otherwise went beyond the issues (Evangelista vs. Alco, L-11139,
April 23, 1958); the Sandiganbayan also erred in not ruling that petitioner is entitled
to justifying circumstance under Par. 6, Art. 11, and/or the exempting circumstance
provided under Pars. 5 and 6 of Art. 12 of the Revised Penal Code.
D
Erred and committed reviewable error in ruling that petitioner was unable to
account for the money. In so doing, the Sandiganbayan contradicted the ruling in
U.S. vs. Catolico, 18 Phil. 504. It also erred in holding petitioner accountable for
acts notcharged in the amended informations, and in so doing convicted him
without jurisdiction.
E
Erred and committed reviewable error in ruling that petitioner was not entitled to
immunity
as
provided
by
Sec.
17,
Article
VII
of
the
1973
Constitution. The Sandiganbayan therefore had no jurisdiction to try the cases.
F
Erred and committed reviewable error in ruling that proof beyond reasonable doubt
of petitioners guilt was submitted by the prosecution. In so doing, the
Sandiganbayan wrongly shifted the burden of proof and denied petitioner the
benefits of the presumption of innocence, of Secs. 1 and 2, Rule 131, and the
absence of demand under the last paragraph of Art. 217 of the Revised Penal Code.
Peralta for his part claim that:

1. Respondent court grossly and seriously erred in convicting herein accused

despite the absence of proof that he allegedly converted the funds withdrawn to his
own personal benefit as charged in the information in glaring violation of his basic
constitutional right to be presumed innocent.
2. Respondent also grossly erred in convicting herein accused on the basis of mere
assumptions, conjectures and inferences devoid of factual basis in another court
likewise grossly and seriously erred in convicting herein accused for a crime not
charged in the information again in violation of another constitutional right, that is
the right to be informed of the accusation or right to due process.
3. Respondent court serious and glaring violation of his right to be presumed
innocent until his guilt is established by proof beyond reasonable doubt.
4. Respondent court finally erred in refusing to recognize the applicability of the immunity
provision embodied in the Constitution and of the justifying circumstance of
obedience to a lawful order as valid defenses in this case.
[7]
Citing PNB v. Tugab, 66 Phil. 583 and People v. Pascua, 71 O.G. 2474.
[8]
Citing Tubb v. People, 101 Phil. 114.
[9]
197 SCRA 94.
[10]
18 Phil. 504.
[11]
24 Phil. 230.
[12]
47 Phil. 48.
[13]
Lewis v. People, 99 Colo. 102, 60 Pac. [2d] 1089; Lawver v. State, 221 Ind. 101, 46 N.E.
[2d] 592; State v. Schmidt, 72 N. Dak. 719, 10 N.W. [2d] 868. Underhills Criminal
Evidence, 5th Ed., Book 3, p. 1421.
[14]
Federal Lindgren v. United States, 260 Fed. 772. Underhill, ibid.
[15]
Section 8, Article VII of the 1973 Constitution provides:
The President shall have control of all ministries.
[16]
No. 6, Article II, Revised Penal Code.
[17]
Sandiganbayan Decision, pp. 37-38.
[18]
Sandiganbayan Decision, p. 41.
[19]
TSN, March 17, 1989, p. 7; Vol. III, Records, p. 409.
[20]
TSN, March 17, 1989, p. 8; Vol. III, Records, p. 410.
[21]
TSN, March 17, 1989, p. 10; Vol. III, Records, p. 412.
[22]
Gregorio, Fundamentals of Criminal Law, 1988 8th Ed., p. 59.
[23]
78 Phil. 67.
[24]
Padilla, Revised Penal Code, Book One, Vol. I, 7th Ed. 1974., p. 248. See
also: Aquino, The Revised Penal Code, Vol. I, 1987 Ed., p. 207. In the very words of
the Court in the Nassif case:
El mero acto de escribir un empleado de la categoria del recurrente, en el Exhibit B, la
palabra sold, por orden de su principal que le paga el sueldo, sin prueba alguna de
dolo o malicia de su parte, no crea por si solo ninguna responsabilidad. Si antes de
insertar dicha palabra en el referido documento, o al tiempo de hacerlo, el
recurrente hubiese sabido o sospechado de alguna manera que era para justificar
un acto impropio de su principal, cosa que, por cierto, no se ha probado, ni puede
desprenderse de la decision impugnada, indudablemente podria hacersele
responsable a dicho recurrente, de la falsificacion cometida, si no como coautor, por
lo menos como complice. Todo esto y la circunstancia justificativa invocada por el
recurrente, eximen a este de toda responsabilidad.
[25]
Decision, p. 45.
[26]
145 SCRA 435.
[27]
Supra.

[28]

Sandiganbayan Decision, p. 50.

People v. Fabian, No. 10790-CR, March 12, 1973. 69 O.G. 12150, No. 53.
[30]
18 Phil. 428.
[31]
197 SCRA 262.
[32]
Supra, p. 431.
[33]
Supra, p. 273.
[34]
Development Bank of the Philippines v. Pundogar, 218 SCRA 118, 163.
[35]
People v. Exala, Dissenting Opinion, 221 SCRA 494, 503
[36]
People v. Olfindo, 47 Phil. 1, citing U.S. v. Abijan, 1 Phil. 83; People v. Borbano, 76 Phil.
703; Perez v. Court of Appeals, 127 SCRA 636.
[37]
See TSN of March 17, 1989, Records, Vol. III, pp. 408-423.
[38]
See pp. 1-27 TSN of May 2, 1990, Records, Vol. III, pp. 439-465.
[39]
See pp. 32-53 of TSN, of May 2, 1990, Records, Vol. III, pp. 470-490.
[40]
Confrontation.--Confrontation consists of confronting the witness with damaging
facts which he cannot deny and which are inconsistent with his evidence. It is a
destructive technique, but when it fails to destroy it may still succeed in weakening.
Probing.--Probing consists of inquiring thoroughly into the details of the story to
discover the flaws.
Insinuation.--Insinuation consists of leading or forcing the witness by adding facts at one
point and modifying details at another, to give a version of his evidence which is
more favorable to the other side. The Technique of Advocacy, by John H. Munkman,
pp. 66-67; p. 75; pp. 91-92.
[41]
TSN, March 17, 1989, pp. 11-21; Records, Vol. III, pp. 413-423.
[42]
TSN, May 2, 1990, pp. 11-27; Records, Vol. III, pp. 449-465.
[43]
TSN, May 2, 1990, pp. 35-53; Records, Vol. III, pp. 473-490.
[44]
US v. Hudieres, 27 Phil. 45; US v. Lim Kui, 35 Phil. 504; US v. Binayao, 35 Phil. 23.
[45]
People v. Opida, 142 SCRA 295.
[46]
York v. US, 299 Fed. 778.
[47]
TSN, May 2, 1990, pp. 35-53; Records, Vol. III, pp. 473-490.
[48]
People v. Opida, supra.
[49]
Murphy v. State, 13 Ga. App. 431, 79 S.E. 228.
[50]
People v. Bernstein, 250 Ill. 63, 95 N.E. 50.
[51]
Dreyer v. Ershowsky, 156 App. Div. 27, 140 N.Y. Supp. 819.
[52]
Dunn v. People, 172 Ill. 582, 50 N.E. 137.
[53]
Com. v. Myma, 278 Pa. 505, 123 Atl. 786.
[54]
Adler v. US, 104 C.C.A. 608, 108 Fed. 464.
[55]
Campaner v. Alano, CA-G.R. No. 2558-R, December 15, 1948.
[56]
People v. Opida, supra.
[29]