1
G.R. No. 111484 June 2, 1995
MARIANO DE LUNA Y ROLDAN, petitionier,
vs.
THE HON. COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondent.
VITUG, J.:
Petitioner, Mariano De Luna y Roldan received a verdict of guilt from the Regional Trial Court, later
sustained by the Court of Appeals, for the killing of Demetrio Rodelas. The trial court 1 imposed upon De
Luna the indeterminate penalty of "FOUR (4) YEARS, TWO (2) MONTHS . . . to EIGHT (8) YEARS and
ONE (1) DAY (prision correctional medium to prision mayor
minimum)"2 after appreciating in his favor the privileged mitigating circumstance of incomplete self-defense.
The appellate court3 disagreed on the range of the penalty, holding that De Luna was not entitled to the
privileged mitigating circumstance; hence, it decreed-an indeterminate sentence of "SIX (6) years and ONE
(1) day of prision mayor, as minimum, to SEVENTEEN (17) years and FOUR (4) months of reclusion
temporal as maximum."4
Contesting both his conviction and the sentence pronounced by the appellate court, De Luna has come to
us via this petition for review on certiorari.
De Luna was accused of, and charged with, the crime of murder for the death, on 12 April 1982, of Demetrio
Rodelas at Barangay Hupi, Municipality of Sta. Cruz, Marinduque. When arraigned, on 15 March 1985, De
Luna pleaded "not guilty."
The appellate court summarized the evidence adduced by the prosecution and the defense thusly:
The prosecution evidence consisted mainly of the testimonies of Sergio Tagbago and
Dr. Thelma Principe. Tagbago's testimony is as follows:
At 7:00 o'clock in the evening of April 12, 1982, while the witness Sergio Tagbago
was in the balcony of his house at Barangay Hupi, Sta. Cruz, Marinduque, relaxing
with his wife and daughter, who were playing sungka, Demetrio Rodelas arrived for a
chat. (Rodelas was the son-in-law of Nemesio Piramide, who is Tagbago's brother-in-
law. Nemesio Piramide is the brother of Tagbago's wife Estrella.) In a moment, they
heard someone calling out, "Hudas, lumabas ka diyan, ninakaw mo ang manok ko"
("Judas, come out and fight. You stole my gamecock"). The one who shouted was
about 70 meters away. Sergio recognized him to be Mariano de Luna. Afterward
Demetrio Rodelas decided to go home and bade goodbye to Sergio and his family.
(TSN, pp. 2-7, April 24, 1984; Id., pp. 8-16, Nov. 7, 1984) But as he was about to step
out of the gate, Demetrio was met by accused Mariano de Luna who stabbed him
(Demetrio) on the upper left side of the right thigh with a bladed weapon. At that
moment, Demetrio was lifting his right leg over a foot-high hurdle (tarangkahan) at the
gate. Demetrio managed to take a few steps backward and then fell on the ground by
the wall. His assailant fled immediately. (TSN, pp. 8-11, April 24, 1984; Id., p. 18,
Nov. 7, 1984; Id., pp. 2-11, Mar. 7, 1985; Id., pp. 2-7, July 25, 1985).
Demetrio was taken to the Sta. Cruz Hospital where he was treated by the resident
Physician, Dr. Thelma Principe. He died at around 10:30 o'clock of the same night.
According to the medical certificate of Dr. Principe, Demetrio Rodela suffered the
following wounds:
1. Stab Wound 1 1/2 inches long x 1/4 wide x 2 1/2 inches deep directed upwards
severing the subcutaneous tissues, muscles, and femoral vein active bleeding.
2. Contusion with Hematoma 1 1/2 inches in diameter associated with severe pain and
tenderness.
The following day Sergio Tagbago reported the incident to the police.
The next witness of the prosecution was Dr. Thelma Principe who testified that the
contusions on the back of the victim must have been caused by the fall while the stab
wound on the left thigh must have been inflicted while his-legs were apart. (Annex 1-
A and 1-B)
Mariano De Luna denied the accusation against him. He claimed that on April 12,
1982, at around 8:30 in the evening, while he was passing by the house of Sergio
Tagbago, on his way to work at the Marcopper Mining, he heard someone say,
"Nariyan na" ("Here he comes") and then he was hit, on the side. He saw Demetrio
Rodelas with a bladed weapon in his right hand who confronted him, "Mariano,
talagang papatayin ka namin." ("Mariano, we are really going to kill you!") According
to the accused-appellant, Demetrio tried to stab him but he was able to parry the blow.
They then grappled for possession of the weapon. While they were fighting, Andres
Rodelas struck him with a piece of wood, hiding him on the left knee. He claimed that
he fell but that he was able to wrest the weapon from Demetrio. The accused did not
say how Demetrio was wounded. instead, he said, Demetrio ran towards the house of
Tagbago. (TSN, pp. 4-17, May 28, 1987; Id., pp. 4-10, Jan. 28, 1988).
The accused said he ran home and told his wife about the incident. Later, a policeman
arrived and took him to the station for questioning. Accussed-appellant turned over the
fatal weapon to the police but refused to give any statement. He was later taken to the
Sta. Cruz Hospital where he was treated by Dr. Principe. (TSN, pp. 18-22, May 28,
1987; Id., pp. 3-6, Oct. 7, 1987; Id., pp. 11-13, Jan. 28, 1988) He claimed that he
wanted to file charges against Andres Rodelas but was told that since it had been three
months since the incident occurred, the crime had already prescribed. (TSN, pp. 14-16,
Jan. 28, 1988)
Mariano de Luna said that Demetrio Rodelas had a grudge against him because the
year before, in 1981, he (De Luna) had filed charges against Demetrio for the
destruction of his two gamecocks and for attempting to hit him and burn his house.
Rodelas filed a counter charge against him for wounding him on the left side of the
head. According to De Luna, although the cases were settled and dismissed, Demetrio
told others that he would someday take revenge. (TSN pp. 4-9, July 21, 1988)
The defense also presented Dr. Thelma Principe, the resident physician on duty at the
Sta. Cruz Hospital on April 12, 1982. Her testimony is summarized on the following
portion of the decision of the trial court.
[O]n April 12, 1982 she was on duty at around 9:30 when patient Mariano De Luna
arrived; and found on him — (1) abrasion with contusion, 1/2 inch in diameter
superficial anterior chest wall; (2) contusion with pain located at the left lateral aspect
of the left knee caused by the use of a blunt instrument. They cleaned them and applied
dressing and antiseptic by I.M.; 2 oral medicines, one antibiotic and one, anti-
inflammatory. She identified Exh. 2 marked by the court as Exh. X and X-l with the
explanation that the two medical certificates were issued for purposes of sick leave to
be filed with Marcopper.
She explained that Exh. 2 was prepared by the nursing attendant and then by herself.
The findings on the document were her handwriting including the date "4-12-82", the
date of issuance was an error — pointing to Exh. 2-A. Clarifying the notation in Exh. 2
and Exh. 2-A where it stated that Mariano De Luna was treated from April 19, 1982 to
April 26, 1982 — she stated the medical certificate was issued only for the purposes of
sick leave. The second one — April 27 to 30 was because the patient Mariano de Luna
extended his leave as he was still recuperating from his injuries. The writing of the
dates "April 19 to 26" is only for the purpose of securing sick leave.5
The Regional Trial Court and the Court of Appeals both found De Luna guilty beyond reasonable doubt of
homicide; however, their findings differed on the applicability to the case of the privileged mitigating
circumstance of incomplete self-defense which, according to the appellate court, was incorrectly considered
by the trial court. The appellate court, likewise, increased the indemnity to the heirs of Rodelas from
P30,000.00 to P50,000.00.
In his petition, De Luna prays for his acquittal or, in the alternative, that he should be credited with the
privileged mitigating circumstance of incomplete self-defense and be sentenced to an indeterminate prison
term of only (4) months and one (1) day of arresto mayor to four (4) year and two (2) months of prision
correccional.6
The court need not belabor the fact that the accused-appellant did take the life of his victim. There is more
than enough evidentiary basis to sustain the findings of both the trial court and the appellate court on the
commission of the crime and the guilt of appellant. Instead, our review will focus, by and large, on whether
the privileged mitigating circumstance of incomplete self-defense, favorably considered; by the trial court but
rejected by the appellate court, should be appreciated in favor of appellant.
Article 11, paragraph I of the Revised Penal Code provides:
Art. 11. Justifying circumstance. — The following do not incur any criminal liability:
1. Any one who acts in defense of his person or rights, provided that the following
circumstances concur:
First. Unlawful aggression.
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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.
When the foregoing requisites concur, there can be a legitimate claim of self-defense and no
criminal liability attaches. Where, upon the other hand, only one or two but not all three of the
above requisites essential to justify the act or to exempt one from criminal liability are attendant
(termed "incomplete self-defense"), the accused still incurs, albeit entitled to a mitigation of,
criminal liability. We did repeatedly say-before that, whether complete or, incomplete, self-
defense, by its very nature and essence, always would require the attendance of unlawful
aggression initiated by the victim which must clearly be shown.7 When unlawful aggression on
the victim's part is alone established, incomplete self-defense is so appreciated merely as an
ordinary mitigating circumstance under Article 13, paragraph 1,8 of the Code. When such
unlawful aggression is coupled with still another element of self-defense, incomplete self-defense
becomes a privileged mitigating circumstance, referred to in Article 69 9 of the Revised Penal
Code, that entitles the accused to a reduction of the penalty imposed by law for the felony by one
or two degrees depending on the conditions and circumstances therein obtaining. 10
The trial court has rationalized that the deceased must have been the unlawful aggressor because of the
prosecution's failure to present Policeman Dionisio Ricaplaza (who would appear to have fetched and
accompanied De Luna to the hospital for treatment) in order to discredit De Luna's claim of having first been
hit by the victim with a hard object below the left nipple. We agree with the appellate court that the
eyewitness account of Tagbago on the incident is sufficient to belie appellant's allegation. Below is a portion
of Tagbago's testimony:
Q So you want to impress the Honorable Court that Demetrio
stayed also in the balcony where he, according to you watched
the sungka playing by your wife and daughter?
A Yes, sir.
Q And while you and Demetrio as well as your wife and
daughter were in the balcony, do you remember of any unusual
incident that happened?
A Yes, sir, there was.
Q What was that unusual incident?
A Somebody shouted, sir.
Q Do you still remember what was shouted?
A Yes, sir.
A Judas, lumabas ka diyan, ninakaw mo ang manok ko.
Q Did you recognize the person who shouted those words?
A Yes, sir.
Q Who shouted those words?
A Mariano de Luna, sir.
Q Why could you tell that it was Mariano who shouted those
words?
A I know his voice, sir, because I am from Hupi and he is also
from Hupi.
Q How many times did Mariano shout those words?
A Once only, sir, in front of the house.
Q Was there any second shouting at any place?
A First, sir, he shouted near their house, the house of the
accused and the second time was in front of our house.
Q How far is the house of Mariano de Luna to your house?
A More or less, 70 meters, sir.
Q So you want to improve (sic) the Hen. Court that the first time
you heard the shout: Judas, lumabas ka diyan... was near the
house of the accused, and the second time that you heard the
shout was when he was in front of your house, is that correct?
A Yes, sir.
Q Now, is it not a fact that your house is fronted by a bamboo
fence?
A Yes, sir.
Q And fronting your bamboo fence is a road?
A Yes, sir.
Q How far is the bamboo fence fronting your house to the side
of your house facing the bamboo fence?
A More or less, 2 and 1/2 meters.
Q And after you heard the second shout, what happened?
A There was silence.
Q And after the silence, what did Demetrio do?
A He bade goodbye and he said he will go home.
Q Was Demetrio able to go home?
A No, sir.
Q Why was Demetrio not able to go home?
A Because he was stabbed by Mariano, sir.
Q By Mariano, you are referring to Mariano de Luna whom you
identified while ago inside the courtroom?
A Yes, sir.
Q Where was Demetrio when he was stabbed by Mariano?
A He was at the gate of the door of our fence.
Q What was Demetrio exactly doing by the door of your fence
when he was stabbed by Mariano?
A He was going out, sir.
Q Will you please demonstrate to the Honorable Court the exact
position of Demetrio when he was stabbed by Mariano?
A He opened the door and then he stepped his right foot forward
(witness demonstrates).
Q What is the height of your gate?
A More or less 5 foot, sir.
xxx xxx xxx
Q Now, if you have to come from the house you have to go out
of that door of your fence, do you have to pass this what we call
"tarangkahan?"
A Yes, sir.
Q How high is your tarangkahan from the ground?
A Less than a foot.
xxx xxx xxx
Q How about the height of the fence, how high is it?
A More or less, 5 meters high.
Q And what happened while Demetrio was already at the door
or gate?
A Mariano suddenly appeared.
Q And what did he do upon his sudden appearance?
A He suddenly stabbed Demetrio.
Q How many times did you see Mariano stab Demetrio?
A Only once, sir.
Q Will you please get out of the witness stand again and
demonstrate to the Hon. Court how you saw Mariano stabbed
Demetrio?
A Mariano suddenly appeared from the side of the fence and
suddenly stabbed Demetrio.
FISCAL NARITO:
The witness in an upward thrust with the right arm (describing
demonstration of witness)
Q You demonstrated awhile ago that Mariano suddenly
appeared and then suddenly stabbed Demetrio with your
demonstrating with your right arm on an upward thrust, with
what hand did Mariano stab Demetrio?
A What I saw, sir, is that Mariano's right hand.
Q According to you Mariano stabbed Demetrio only once, and
after Mariano had stabbed Demetrio, what did Mariano do?
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A He moved backward to the road, sir.
Q How about Demetrio, after he was stabbed once, what did he
do?
A He moved backward then he fell. 11
The defense would rather that Tagbago be discredited allegedly because of "glaring" inconsistencies in his
testimony. Not only have the supposed inconsistencies been sufficiently explained by the appellate court but
that, indeed, they concern less than significant details that do not detract from the credibility of Tagbago and
credulity of his eyewitness account. The appellate court, scrutinizing the case closely has aptly observed:
Although accused-appellant studiously avoided admitting that he had stabbed the
victim, it is clear that he inflicted the mortal wound on Demetrio Rodelas. The
eyewitness account of Sergio Tagbago clearly shows that accused appellant stabbed
the victim. Tagbago said he heard defendant-appellant shout angry words at the victim.
He later saw accused-appellant stab Rodelas. Although the defense tried hard to show
that Tagbago did not see the incident happen, accused appellant's admission that the
incident happened in front of Tagbago's house makes it more probable that Tagbago
really witnessed the stabbing of Demetrio.
Tagbago's testimony was not given credit by the trial court because of what it
considered glaring inconsistencies and improbabilities. The trial court said:
It appeared from Tagbago's oral testimony on direct
examination that he was at his balcony when Mariano de Luna
stabbed Demetrio Rodelas and went inside only after the latter's
fall.
On cross examination, however, he admitted that he was inside
his house when Mariano de Luna suddenly appeared and
delivered the stabbing blow.
There is no inconsistency here. Tagbago testified on cross-examination that he was
about an arm's length from the place where his wife and daughter were playing
"sungka" in the balcony. (TSN; on. 14-16, November 7, 1984) Hence, as he testified
on direct-examination, he was near the balcony at the time of the incident.
The trial court further said:
On one occasion, Tagbago relayed that Mariano de Luna
stabbed Demetrio Rodelas while at a distance of five (5) feet in
his demonstration however he showed that Mariano de Luna
with the use of his right hand made an upward thrust of the
bladed weapon hitting the left side of Demetrio Rodelas' right
upper leg. If it is so, then a fully stretched right arm which is
more or less three (3) feet will not reach the body of the victim.
More so when in this case, prosecution did not establish that
Mariano de Luna's hand was fully stretched forward when the
bladed instrument about eight (8) inches hit Demetrio Rodelas
"right thigh".
As the Solicitor General states in his brief for the appellee:
This is explicable. In the first place, the approximate distance of
about five (5) feet is still possible. It finds support in the
testimony of witness Tagbago who claimed that the victim was
standing and in the act of lifting his right foot over the one-foot
high bamboo gate (tarangkahan) when he was stabbed by
appellant who made an upward thrust of his right arm and then
hitting the upper thigh. In other words, the victim's legs were
not only apart from each other but the right leg was raised
upward at the time of the attack.
Be that as it may, it can not be expected of witness Tagbago to
recollect with precision the actual measurement considering the
manner, place and time the stabbing incident occurred. What is
important is that Tagbago's demonstration by making an upward
thrust of his right arm and hitting with a bladed weapon the left
side of the victim's right upper leg was corroborated both by the
physical evidence showing the fatal wound sustained and the
testimony of the attending physician.
"(Appellee's Brief, pp. 23-24)"
Finally, it was pointed out:
In his direct testimony, Tagbago portrayed that Demetrio
Rodelas made a step backward from the gate (tarangkahan) then
fell. When confronted, however, with his affidavit, admitted that
Demetrio Rodelas was able to run and fell at his balisbisan. The
conclusion therefore should be that Demetrio Rodelas came
from a distance farther than the tarangkahan. Since
the tarangkahan is only 2-1/2 meters away from the balisbisan.
Only two (2) full stretched steps would be necessary to reach the
point where Demetrio Rodelas fell and not as what was stated in
Tagbago's affidavit (he ran and fell).
But again, as the Solicitor General argues:
There is no basis for the conclusion that when the victim ran
backward after having been stabbed by the appellant, he came
from a distance farther than the gate (tarangkahan). The word
run simply means to move swiftly, make haste or rush. Hence,
the emphasis is not on the distance travelled but on the manner
of movement. Thus, the victim, after having been attacked, was
able to move swiftly reaching the wall by the side of the house
(balisbisan) before he fell (pp. 6-7, TSN, July 25, 1985). Had
the victim come from a place farther from the gate as appellant
wishes to point out, it would not be possible for the former to
even reach the side of the house considering that the wound
inflicted was fatal. The most logical conclusion, therefore,
should have been that the victim was stabbed while lifting his
right foot over the one-foot high bamboo gate (tarangkahan).
After being stabbed, he must have withdrawn his right foot from
over the tarangkahan, then turned around and instinctively
moved swiftly or ran back to the house of Tagbago but fell upon
reaching the balisbisan, the place on the ground below the house
awning.
Indeed, what cannot altogether be disregarded is the fact that Tagbago saw and heard
the incident — in short he witnessed it. There is no question that when the first shout
was heard he was in the balcony of his house, with his family and the victim Demetrio.
It was accused-appellant challenging Demetrio to a fight. Later accused-appellant
himself confirmed what Tagbago said he had heard the accused-appellant say when the
latter said bad blood existed between him and the deceased and he had in fact held him
responsible for the death of his gamecocks.
Moreover, as pointed out by the Solicitor General, there is no question either that
Tagbago was in a position to see the incident because there was no obstruction; the
wall of the balcony was no higher than the height of the waistline and there was an
open space between the window sill and the roofing.
Indeed, the inconsistencies pointed out by the trial court concern minor matters which
do not detract from the credibility of Tagbago as a witness. This credibility of the
witnesses is not affected by the fact that the deceased was the son-in-law of his
brother-in-law. In the ultimate analysis; his testimony must be appraised on its merits
and, as already pointed out, nothing that the accused-appellant has said shows that
Tagbago's testimony is unworthy of belief. 12
VIRGILIO TALAMPAS y G.R. No. 180219
MATIC,
Petitioner,
Present:
CORONA, C.J., Chairperson,
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LEONARDO-DE CASTRO,
-versus- BERSAMIN,
DEL CASTILLO, and
VILLARAMA, JR., JJ.
PEOPLE OF THE PHILIPPINES, Promulgated:
Respondent.
November 23, 2011
x-----------------------------------------------------------------------------------------x
DECISION
BERSAMIN, J.:
By petition for review on certiorari, Virgilio Talampas y Matic (Talampas) seeks the review of the
affirmance of his conviction for homicide (for the killing of the late Ernesto Matic y Masinloc) by the Court of
Appeals (CA) through its decision promulgated on August 16, 2007. [1]
The Regional Trial Court, Branch 25, in Bian, Laguna (RTC) had rejected his pleas of self-defense
and accident and had declared him guilty of the felony under the judgment rendered on June 22, 2004. [2]
Antecedents
The information filed on November 17, 1995, to which Talampas pleaded not guilty, averred as follows:[3]
That on or about July 5, 1995, in the Municipality of Bian, Province of Laguna,
Philippines and within the jurisdiction of this Honorable Court, accused VIRGILIO
TALAMPAS, with intent to kill, while conveniently armed with a short firearm and
without any justifiable cause, did then and there willfully, unlawfully and feloniously
attack, assault and shoot one Ernesto Matic y Masinloc with the said firearm, thereby
inflicting upon him gunshot wound at the back of his body which directly caused his
instantaneous death, to the damage and prejudice of his surviving heirs.
CONTRARY TO LAW.
The State presented as witnesses Jose Sevillo, Francisco Matic, Jerico Matic, Dr. Valentin Bernales, and
Josephine Matic. The CA summarized their testimonies thuswise:[4]
Prosecution witness Jose Sevillo (Jose) who allegedly witnessed the incident in question,
testified that on July 5, 1995 at about 7:00 oclock in the evening, he together with
Eduardo Matic (Eduardo) and Ernesto Matic (Ernesto) were infront of his house, along
the road in Zona Siete (7), Wawa, Malaban, Bian, Laguna, repairing his tricycle when
he noticed the appellant who was riding on a bicycle passed by and stopped. The latter
alighted at about three (3) meters away from him, walked a few steps and brought out a
short gun, a revolver, and poked the same to Eduardo and fired it hitting Eduardo who
took refuge behind Ernesto. The appellant again fired his gun three (3) times, one shot
hitting Ernesto at the right portion of his back causing him (Ernesto) to fall on the ground
with his face down. Another shot hit Eduardo on his nape and fell down on his back
(patihaya).Thereafter, the appellant ran away, while he (Jose) and his neighbors brought
the victims to the hospital. On June 6, 1995, Jose executed a Sworn Statement at the
Bian Police Station.
Another witness, Francisco Matic, testified that prior to the death of his brother Ernesto
who was then 44 years old, he (Ernesto) was driving a tricycle on a boundary system
and earned P100.00 daily, although not on a regular basis because sometimes Ernesto
played in a band for P100.00 per night.
Jerico Matic, eldest son of Ernesto, alleged that he loves his father and his death was so
painful to him that he could not quantify his feelings in terms of money. The death of
his father was a great loss to them as they would not be able to pursue their studies and
that nobody would support them financially considering that the money being sent by
their mother in the amount of P2,000.00 to P2,500.00 every three (3) months, would not
be enough.
Dr. Valentin Bernales likewise, testified that he was the one who conducted the autopsy
on the body of Ernesto and found one gunshot in the body located at the back of the
costal area, right side, sixteen (16) centimeters from the spinal column. This shot was
fatal as it involved the major organs such as the lungs, liver and the spinal column which
caused Ernestos death.
The last witness, Josephine Matic, wife of Ernesto, testified that her husband was laid
to rest on July 18, 1995 and that his untimely death was so painful and that she could
not provide her children with sustenance. She asked for the amount of P200,000.00 for
her to be able to send her children to school.
On his part, Talampas interposed self-defense and accident. He insisted that his enemy had been Eduardo Matic
(Eduardo), not victim Ernesto Matic (Ernesto); that Eduardo, who was then with Ernesto at the time of the
incident, had had hit him with a monkey wrench, but he had parried the blow; that he and Eduardo had then
grappled for the monkey wrench; that while they had grappled, he had notice that Eduardo had held a revolver;
that he had thus struggled with Eduardo for control of the revolver, which had accidentally fired and hit Ernesto
during their struggling with each other; that the revolver had again fired, hitting Eduardo in the thigh; that he
had then seized the revolver and shot Eduardo in the head; and that he had then fled the scene when people had
started swarming around.
Ruling of the RTC
On June 22, 2004, the RTC, giving credence to the testimony of eyewitness Jose Sevilla, found Talampas guilty
beyond reasonable doubt of homicide,[5] anddisposed:
WHEREFORE, premises considered, the court finds the accused guilty beyond
reasonable doubt of the crime of Homicide, with one mitigating circumstance of
voluntary surrender, and hereby sentences him to suffer an indeterminate penalty of
IMPRISONMENT ranging from TEN (10) years and One (1) day of prision mayor, as
minimum, to FOURTEEN (14) years and EIGHT (8) months of reclusion temporal, as
maximum. He is likewise ordered to pay the heirs of Ernesto Matic y Masinloc the
following sums, to wit:
1. P50,000.00 as and for death indemnity;
2. P50,000.00 as and for moral damages;
3. P25,000.00 as and for actual damages; and
4. P30,000.00 as and for temperate damages.
Furnish Public Prosecutor Nofuente, Atty. Navarroza, the private complainant and
accused with a copy of this decision.
SO ORDERED.[6]
Ruling of the CA
Talampas appealed to the CA, contending that:
I
5
THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE
ACCUSED-APPELLANT FOR THE CRIME CHARGED HAS BEEN PROVEN
BEYOND REASONABLE DOUBT.
II
THE COURT A QUO GRAVELY ERRED IN NOT FINDING THAT THE DEATH
OF ERNESTO MATIC WAS MERELY ACCIDENTAL.
III
THE COURT A QUO GRAVELY ERRED IN NOT FINDING THAT THE
ACCUSED-APPELLANT ACTED IN DEFENSE OF HIMSELF WHEN HE
GRAPPLED WITH EDUARDO MATIC.
Still, the CA affirmed the conviction based on the RTCs factual and legal conclusions, and ruled that Talampas,
having invoked self-defense, had in effect admitted killing Ernesto and had thereby assumed the burden of
proving the elements of self-defense by credible, clear and convincing evidence, but had miserably failed to
discharge his burden.[7]
The CA deleted the award of temperate damages in view of the awarding of actual damages,
pointing out that the two kinds of damages were mutually exclusive.[8]
Issue
Hence, Talampas is now before the Court, continuing to insist that his guilt was not proven beyond reasonable
doubt, and that the lower courts both erred in rejecting his claim of self-defense and accidental death.
Ruling
The petition for review is denied for lack of merit.
Firstly, the elements of the plea of self-defense are: (a) unlawful aggression on the part of the victim; (b)
reasonable necessity of the means employed to prevent or repel the unlawful aggression; and (c) lack of
sufficient provocation on the part of the accused in defending himself. [9]
In the nature of self-defense, the protagonists should be the accused and the victim. The established
circumstances indicated that such did not happen here, for it was Talampas who had initiated the attack only
against Eduardo; and that Ernesto had not been at any time a target of Talampas attack, he having only
happened to be present at the scene of the attack. In reality, neither Eduardo nor Ernesto had committed any
unlawful aggression against Talampas. Thus, Talampas was not repelling any unlawful aggression from the
victim (Ernesto), thereby rendering his plea of self-defense unwarranted.
Secondly, Talampas could not relieve himself of criminal liability by invoking accident as a defense. Article
12(4) of the Revised Penal Code,[10] the legal provision pertinent to accident, contemplates a situation where a
person is in fact in the act of doing something legal, exercising due care, diligence and prudence, but in the
process produces harm or injury to someone or to something not in the least in the mind of the actor an
accidental result flowing out of a legal act.[11] Indeed, accident is an event that happens outside the sway of our
will, and although it comes about through some act of our will, it lies beyond the bounds of humanly foreseeable
consequences.[12] In short, accident presupposes the lack of intention to commit the wrong done.
The records eliminate the intervention of accident. Talampas brandished and poked his revolver at Eduardo
and fired it, hitting Eduardo, who quickly rushed to seek refuge behind Ernesto. At that point, Talampas fired
his revolver thrice. One shot hit Ernesto at the right portion of his back and caused Ernesto to fall face down
to the ground. Another shot hit Eduardo on the nape, causing Eduardo to fall on his back. Certainly, Talampas
acts were by no means lawful, being a criminal assault with his revolver against both Eduardo and Ernesto.
And, thirdly, the fact that the target of Talampas assault was Eduardo, not Ernesto, did not excuse his hitting
and killing of Ernesto. The fatal hitting of Ernesto was the natural and direct consequence of Talampas
felonious deadly assault against Eduardo. Talampas poor aim amounted to aberratio ictus, or mistake in the
blow, a circumstance that neither exempted him from criminal responsibility nor mitigated his criminal
liability. Lo que es causa de la causa, es causa del mal causado (what is the cause of the cause is the cause of
the evil caused).[13] Under Article 4 of the Revised Penal Code,[14] criminal liability is incurred by any person
committing a felony although the wrongful act done be different from that which he intended.
Nonetheless, the Court finds the indeterminate sentence of 10 years and one day of prision mayor, as minimum,
to 14 years and eight months, as maximum, legally erroneous.
The penalty for homicide under Article 246 of the Revised Penal Code is reclusion temporal. Under
Section 1 of the Indeterminate Sentence Law,[15] the court, in imposing a prison sentence for an offense
punished by the Revised Penal Code, or its amendments, is mandated to prescribe an indeterminate sentence
the maximum term of which shall be that which, in view of the attending circumstances, could be properly
imposed under the rules of the Revised Penal Code, and the minimum term shall be within the range of the
penalty next lower to that prescribed by the Revised Penal Code for the offense. With the absence of
aggravating or mitigating circumstances, the imposable penalty is reclusion temporal in its medium period, or
14 years, eight months, and one day to 17 years and four months. This is pursuant to Article 64 of the Revised
Penal Code.[16] It is such period that the maximum term of the indeterminate sentence should be reckoned from.
Hence, limiting the maximum term of the indeterminate sentence at only 14 years and eight months
contravened the express provision of the Indeterminate Sentence Law, for such penalty was within the
minimum period of reclusion temporal. Accordingly, the Court must add one day to the maximum term fixed
by the lower courts.
The Court finds to be unnecessary the increment of one day as part of the minimum term of the
indeterminate sentence. It may be true that the increment did not constitute an error, because the minimum
term thus fixed was entirely within the parameters of the Indeterminate Sentence Law. Yet, the addition of one
day to the 10 years as the minimum term of the indeterminate sentence of Talampas may occasion a degree of
inconvenience when it will be time for the penal administrators concerned to consider and determine whether
Talampas is already qualified to enjoy the benefits of the Indeterminate Sentence Law. Hence, in order to
simplify the computation of the minimum penalty of the indeterminate sentence, the Court deletes the one-day
increment from the minimum term of the indeterminate sentence.
WHEREFORE, the Court AFFIRMS the decision promulgated on August 16, 2007 finding VIRGILIO
TALAMPAS y MATIC guilty beyond reasonable doubt of the crime of homicide, and IMPOSES the
indeterminate sentence of 10 years of prision mayor, as minimum, to 14 years, eight months, and one day
of reclusion temporal, as maximum.
PEOPLE OF THE PHILIPPINES, petitioner, vs. COURT OF APPEALS and ELADIO C.
TANGAN, respondents.
[G.R. No. 105830. February 23, 2001]
ELADIO C. TANGAN, petitioner, vs. PEOPLE OF THE PHILIPPINES and COURT OF
APPEALS, respondents.
DECISION
YNARES-SANTIAGO, J.:
At around 11:30 p.m. of December 1, 1984, Navy Captain Eladio C. Tangan was driving alone on Roxas
Boulevard heading south. He had just come from Buendia Avenue on an intelligence operation. At the same
time, Generoso Miranda, a 29-year old optometrist, was driving his car in the same direction along Roxas
Boulevard with his uncle, Manuel Miranda, after coming from the Ramada Hotel. Generoso was moving ahead
of Tangan. Suddenly, firecrackers were thrown in Generosos way, causing him to swerve to the right and cut
Tangans path. Tangan blew his horn several times. Generoso slowed down to let Tangan pass. Tangan
accelerated and overtook Generoso, but when he got in front, Tangan reduced speed. Generoso tried four or
five times to overtake on the right lane but Tangan kept blocking his lane. As he approached Airport Road,
Tangan slowed down to make a U-turn. Generoso passed him, pulled over and got out of the car with his
uncle. Tangan also stopped his car and got out. As the Mirandas got near Tangans car, Generoso loudly
retorted, Putang ina mo, bakit mo ginigitgit ang sasakyan ko? Generoso and Tangan then exchanged
expletives. Tangan pointed his hand to Generoso and the latter slapped it, saying, Huwag mo akong
dinuduro! Sino ka ba, ano ba ang pinagmamalaki mo? Tangan countered, Ikaw, ano ang gusto mo? With this,
Tangan went to his car and got his .38 caliber handgun on the front seat. The subsequent events per account of
the parties respective witnesses were conflicting:
6
According to the prosecution witnesses, particularly, Mary Ann Borromeo, Rosalia Cruz and Manuel
Miranda, the accused pointed his gun at Generoso Miranda and when Manuel Miranda tried to intervene, the
accused pointed his gun at Manuel Miranda, and after that the accused pointed again the gun to Generoso
Miranda, the accused shot Generoso Miranda at a distance of about a meter but because the arm of the
accused was extended, the muzzle of the gun reached to about more or less one foot away from the body of
Generoso Miranda. The shot hit the stomach of Generoso Miranda causing the latter to fall and while still
conscious, Generoso Miranda told Manuel Miranda, his uncle, to get the gun. Manuel Miranda grappled for
the possession of the gun and during their grappling, Rosalia Cruz intervened and took hold of the gun and
after Rosalia Cruz has taken hold of the gun, a man wearing a red T-shirt took the gun from her. The man in
T-shirt was chased by Manuel Miranda who was able to get the gun where the man in red T-shirt placed it.
On the other hand, the defense, particularly the accused and his witness by the name of Nelson Pante claimed
that after the gun was taken by the accused from inside his car, the Mirandas started to grapple for possession
of the gun and during the grappling, and while the two Mirandas were trying to wrest away the gun from the
accused, they fell down at the back of the car of the accused. According to the accused, he lost the possession
of the gun after falling at the back of his car and as soon as they hit the ground, the gun fell, and it exploded
hitting Generoso Miranda.[1]
After the gun went off, Tangan ran away. Meanwhile, Generoso lay on the ground bloodied. His uncle,
Manuel, looked for the gun and ran after Tangan, joining the mob that had already pursued him. Tangan found
a policeman who allowed him to enter his patrol car. Manuel arrived and told the policeman that Tangan had
just shot his nephew. Then he went back to where Generoso lay and there found two ladies, later identified as
Mary Ann Borromeo and Rosalina Cruz, helping his nephew board a taxi. Manuel suggested that Generoso be
brought to the hospital in his car. He was rushed to the Philippine General Hospital but he expired on the way.
Tangan was charged with the crime of murder with the use of an unlicensed firearm. [2] After a
reinvestigation, however, the information was amended to homicide with the use of a licensed firearm, [3] and
he was separately charged with illegal possession of unlicensed firearm. [4] On arraignment, Tangan entered a
plea of not guilty in the homicide case, but moved to quash the information for illegal possession of unlicensed
firearm on various grounds. The motion to quash was denied, whereupon he filed a petition for certiorari with
this Court.[5] On November 5, 1987, said petition was dismissed and the joint trial of the two cases was
ordered.[6]
During the trial, the prosecution and the defense stipulated on the following: that the amount of
P126,000.00 was incurred for the funeral and burial expenses of the victim; [7] that P74,625.00 was incurred for
attorneys fees; and that the heirs of Generoso suffered moral damages, the amount of which is left for the courts
to determine. After trial, the lower court acquitted Tangan of illegal possession of firearm, but convicted him
of homicide. The privileged mitigating circumstance of incomplete self-defense and the ordinary mitigating
circumstances of sufficient provocation on the part of the offended party and of passion and obfuscation were
appreciated in his favor; consequently, the trial court ordered him to suffer an indeterminate penalty of two (2)
months of arresto mayor, as minimum, to two (2) years and four (4) months of prision correccional, as
maximum, and to indemnify the heirs of the victim.[8] Tangan was released from detention after the
promulgation of judgment[9] and was allowed bail in the homicide case.
Private complainants, the heirs of Generoso Miranda, filed a petition for review with this Court,
docketed as G.R. No. 102677, challenging the civil aspect of the court a quos decision, but the same was
dismissed for being premature. On the other hand, Tangan appealed to the Court of Appeals, which affirmed
the judgment of the trial court but increased the award of civil indemnity to P50,000.00. [10] His subsequent
motion for reconsideration and a motion to cite the Solicitor General in contempt were denied by the Court of
Appeals.[11]
The Office of the Solicitor General, on behalf of the prosecution, alleging grave abuse of discretion,
filed a petition for certiorari under Rule 65, docketed as G.R. No. 103613, naming as respondents the Court
of Appeals and Tangan, where it prayed that the appellate courts judgment be modified by convicting accused-
appellant of homicide without appreciating in his favor any mitigating circumstance. [12] Subsequently, the
Office of the Solicitor General, this time acting for public respondent Court of Appeals, filed a motion for
extension to file comment to its own petition for certiorari.[13] Discovering its glaring error, the Office of the
Solicitor General later withdrew its motion for extension of time. [14] Tangan filed a Reply asking that the case
be submitted for decision.[15]
Meanwhile, Tangan filed a separate petition for review under Rule 45, docketed as G.R. No.
105830.[16] Since the petition for certiorari filed by the Solicitor General remained unresolved, the two cases
were consolidated.[17] The Office of the Solicitor General filed a manifestation in G.R. No. 105830, asking that
it be excused from filing a comment to Tangans petition for review, in order to avoid taking contradictory
positions.[18]
In the recent case of People v. Velasco and Galvez,[19] we held that the prosecution cannot avail of the
remedies of special civil action on certiorari, petition for review on certiorari, or appeal in criminal
cases. Previous to that, we categorically ruled that the writ of certiorari cannot be used by the State in a
criminal case to correct a lower courts factual findings or evaluation of the evidence.[20]
Rule 117, Section 7, of the Revised Rules of Criminal Procedure, is clear:
Former conviction or acquittal; double jeopardy. - When an accused has been convicted or acquitted, or the
case against him dismissed or otherwise terminated without his express consent by a court of competent
jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to
sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the
accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any
attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is
necessarily included in the offense charged in the former complaint or information.
However, the conviction of the accused shall not be a bar to another prosecution for an offense which
necessarily includes the offense charged in the former complaint or information under any of the following
instances:
(a) the graver offense developed due to supervening facts arising from the same act or omission constituting
the former charge;
(b) the facts constituting the graver charge became known or were discovered only after a pleas was entered
in the former complaint or information; or
(c) the plea of guilty to the lesser offense was made without the consent of the fiscal and of the offended
party, except as provided in section 1(f) of Rule 116.
In any of the foregoing cases, where the accused satisfies or serves in whole or in part the judgment, he shall
be credited with the same in the event of conviction for the graver offense.
Based on the foregoing, the Solicitor Generals petition for certiorari under Rule 65, praying that no
mitigating circumstance be appreciated in favor of accused-appellant and that the penalty imposed on him be
correspondingly increased, constitutes a violation of Tangans right against double jeopardy and should be
dismissed.
We now come to the petition for review filed by Tangan. It is noteworthy that during the trial, petitioner
Tangan did not invoke self-defense but claimed that Generoso was accidentally shot.As such, the burden of
proving self-defense,[21] which normally would have belonged to Tangan, did not come into play. Although
Tangan must prove his defense of accidental firing by clear and convincing evidence,[22] the burden of proving
the commission of the crime remained in the prosecution.
Both the trial court and the Court of Appeals appreciated in favor of Tangan the privileged mitigating
circumstance of incomplete self-defense under Article 13 (1), in relation to Article 11 (1), of the Revised Penal
Code, to wit:
ARTICLE 11. Justifying circumstances. - The following do not incur any criminal liability:
1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur:
First. Unlawful aggression.
Second. Reasonable necessity of the means employed to prevent or repel it.
Third. Lack of sufficient provocation on the part of the person defending himself.
xxxxxxxxx
ARTICLE 13. Mitigating Circumstances. The following are mitigating circumstances:
1. Those mentioned in the preceding Chapter, when all the requisites necessary to justify the act or to exempt
from criminal liability in the respective cases are not attendant.
Incomplete self-defense is not considered as a justifying act, but merely a mitigating circumstance;
hence, the burden of proving the crime charged in the information is not shifted to the accused.[23] In order that
it may be successfully appreciated, however, it is necessary that a majority of the requirements of self-defense
be present, particularly the requisite of unlawful aggression on the part of the victim.[24] Unlawful aggression
by itself or in combination with either of the other two requisite suffices to establish incomplete self-
defense. Absent the unlawful aggression, there can never be self-defense, complete or incomplete,[25] because
if there is nothing to prevent or repel, the other two requisites of defense will have no basis. [26]
There is no question that the bullet which hit the victim was fired from the caliber. 38, which was issued
to Tangan by the Philippine Navy. The cause of death was severe hemorrhage secondary to gunshot wound of
the abdomen, caused by the bullet fired from a gun of the said caliber. The prosecution claimed that Tangan
shot the victim point-blank in the stomach at a distance of about one foot. On the other hand, Tangan alleged
that when he grappled with Generoso and Manuel Miranda for possession of the gun, it fell to the ground and
accidentally fired, hitting the victim.
7
When the testimonies of witnesses in open court are conflicting in substantial points, the calibration of
the records on appeal becomes difficult. It is the word of one party against the word of the other. The reviewing
tribunal relies on the cold and mute pages of the records, unlike the trial court which had the unique opportunity
of observing first-hand that elusive and incommunicable evidence of the witness deportment on the stand while
testifying.[27] The trial courts assessments of the credibility of witnesses is accorded great weight and respect
on appeal and is binding on this Court,[28] particularly when it has not been adequately demonstrated that
significant facts and circumstances were shown to have been overlooked or disregarded by the court below
which, if considered, might affect the outcome hereof.[29] The rationale for this has been adequately explained
in that,
The trial court has the advantage of observing the witnesses through the different indicators of truthfulness or
falsehood, such as the angry flush of an insisted assertion or the sudden pallor of a discovered lie or the
tremulous mutter of a reluctant answer or the forthright tone of a ready reply; or the furtive glance, the blush
of conscious shame, the hesitation, the sincere or the flippant or sneering tone, the heat, the calmness, the
yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, and carriage
and mien.[30]
Equally, when a person fabricates a story, he usually adopts a simple account because a complex one
might lead to entanglement from which he may find it hard to extricate himself. Along the same line, the
experience of the courts and the general observations of humanity teach us that the natural limitations of our
inventive faculties are such that if a witness delivers in court a false narrative containing numerous details, he
is almost certain to fall into fatal inconsistencies, to make statements which can be readily refuted, or to expose
in his demeanor the falsity of his message.[31] Aside from this, it is not also unusual that the witness may have
been coached before he is called to the stand to testify.
Somewhere along the painstaking review of the evidence on record, one version rings the semblance of
truth, not necessarily because it is the absolute truth, but simply because it is the best approximation of the
truth based on the declarations of witnesses as corroborated by material evidence. Perforce, the other version
must be rejected. Truth and falsehood, it has been well said, are not always opposed to each other like black
and white, but oftentimes, and by design, are made to resemble each other so as to be hardly
distinguishable.[32] Thus, after analyzing the conflicting testimonies of the witnesses, the trial court found that:
When the accused took the gun from his car and when he tried to get out of the car and the two Mirandas saw
the accused already holding the gun, they started to grapple for the possession of the gun that it went off
hitting Generoso Miranda at the stomach. The court believes that contrary to the testimony of the accused, he
never lost possession of the gun for if he did and when the gun fell to the ground, it will not first explode or if
it did, somebody is not holding the same, the trajectory of the bullet would not be perpendicular or
horizontal.[33]
The Court of Appeals agreed -
The finding of the lower court that Generoso Miranda III was shot while the accused and the Mirandas were
grappling for the possession of the gun immediately after the accused had taken his gun from inside his car
and before the three allegedly fell to the ground behind the car of the accused is borne out by the record. The
court also agrees with the court below that it was the accused-appellant who shot and killed Generoso
Miranda III. If the accused-appellant did not shoot Generoso III during the scuffle, he would have claimed
accidental killing by alleging that his gun exploded during the scuffle instead of falsely testifying that he and
the Mirandas fell to the ground behind his car and the gun exploded in the possession of Manuel
Miranda. The theory of the prosecution that the shooting took place while the three were grappling for the
possession of the gun beside the car of appellant is completely in harmony with the findings and testimony of
Dr. Ibarrola regarding the relative position of the three and the precarious nearness of the victim when
accused-appellant pulled the trigger of his gun. Dr. Ibarrola explained that the gun was about two (2) inches
from the entrance wound and that its position was almost perpendicular when it was fired. It was in fact the
closeness of the Mirandas vis--vis appellant during the scuffle for the gun that the accused-appellant was
compelled to pull the trigger in answer to the instinct of self-preservation.[34]
No convincing reason appears for the Court to depart from these factual findings, the same being ably
supported by the evidence on record. In violent deaths caused by gunshot wounds, the medical report or the
autopsy on the cadaver of the victim must as much as possible narrate the observations on the wounds
examined. It is material in determining the truthfulness of the events narrated by the witnesses presented. It is
not enough that the witness looks credible and assumes that he indeed witnessed the criminal act. His narration
must be substantiated by the physical evidence available to the court.
The medical examiner testified that the distance between the muzzle of the gun and the target was about
2 inches but definitely not more than 3 inches. Based on the point of exit and the trajectory transit of the wound,
the victim and the alleged assailant were facing each other when the shot was made and the position of the gun
was almost perpendicular when fired.[35] These findings disprove Tangans claim of accidental shooting. A
revolver is not prone to accidental firing because of the nature of its mechanism, unless it was already first
cocked and pressure was exerted on the trigger. If it were uncocked, then considerable pressure had to be
applied on the trigger to fire the revolver.[36]
Having established that the shooting was not accidental, the next issue to be resolved is whether Tangan
acted in incomplete self-defense. The element of unlawful aggression in self-defense must not come from the
person defending himself but from the victim.
A mere threatening or intimidating attitude is not sufficient.[37] Likewise, the exchange of insulting
words and invectives between Tangan and Generoso Miranda, no matter how objectionable, could not be
considered as unlawful aggression, except when coupled with physical assault. [38] There being no lawful
aggression on the part of either antagonists, the claim of incomplete self-defense falls. Tangan undoubtedly
had possession of the gun, but the Mirandas tried to wrestle the gun from him. It may be said that the former
had no intention of killing the victim but simply to retain possession of his gun. However, the fact that the
victim subsequently died as a result of the gunshot wound, though the shooter may not have the intention to
kill, does not absolve him from culpability. Having caused the fatal wound, Tangan is responsible for all the
consequences of his felonious act. He brought out the gun, wrestled with the Mirandas but anticipating that the
gun may be taken from him, he fired and fled.
The third requisite of lack of sufficient provocation on the part of the person defending himself is not
supported by evidence. By repeatedly blocking the path of the Mirandas for almost five times, Tangan was in
effect the one who provoked the former. The repeated blowing of horns, assuming it was done by Generoso,
may be irritating to an impatient driver but it certainly could not be considered as creating so powerful an
inducement as to incite provocation for the other party to act violently.
The appreciation of the ordinary mitigating circumstances of sufficient provocation and passion and
obfuscation under Article 13, paragraphs 4 and 6,[39] have no factual basis. Sufficient provocation as a requisite
of incomplete self-defense is different from sufficient provocation as a mitigating circumstance. As an element
of self-defense, it pertains to its absence on the part of the person defending himself; while as a mitigating
circumstance, it pertains to its presence on the part of the offended party. Besides, only one mitigating
circumstance can arise out of one and the same act.[40] Assuming for the sake of argument that the blowing of
horns, cutting of lanes or overtaking can be considered as acts of provocation, the same were not sufficient. The
word sufficient means adequate to excite a person to commit a wrong and must accordingly be proportionate
to its gravity.[41] Moreover, Generosos act of asking for an explanation from Tangan was not sufficient
provocation for him to claim that he was provoked to kill or injure Generoso. [42]
For the mitigating circumstance of passion and obfuscation to be appreciated, it is required that (1) there
be an act, both unlawful and sufficient to produce such a condition of mind; and (2) said 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. [43]
In the case at bar, Tangan could not have possibly acted upon an impulse for there was no sudden and
unexpected occurrence which wuld have created such condition in his mind to shoot the victim. Assuming that
his path was suddenly blocked by Generoso Miranda due to the firecrackers, it can no longer be treated as a
startling occurrence, precisely because he had already passed them and was already the one blocking their
path. Tangans acts were done in the spirit of revenge and lawlessness, for which no mitigating circumstance of
passion or obfuscation can arise.
With respect to the penalty, under the laws then existing, homicide was penalized with reclusion
temporal,[44] but if the homicide was committed with the use of an unlicensed firearm, the penalty shall be
death.[45] The death penalty, however, cannot be imposed on Tangan because in the meantime, the 1987
Constitution proscribed the imposition of death penalty; and although it was later restored in 1994, the
retroactive application of the death penalty is unfavorable to him. Previously, the accused may be prosecuted
for two crimes: (1) homicide or murder under the Revised Penal Code and (2) illegal possession of firearm in
its aggravated form under P.D. 1866.[46]
P.D. 1866 was amended by R.A. No. 8294,[47] which provides that if an unlicensed firearm is used in
murder or homicide, such use of unlicensed firearm shall be appreciated as an aggravating circumstance and
no longer considered as a separate offense,[48] which means that only one offense shall be punished murder or
homicide. However, this law cannot apply retroactively because it will result in the imposition on Tangan of
the maximum period of the penalty. Moreover, under Rule 110, Section 8 of the Revised Rules of Criminal
Procedure,[49] the aggravating circumstance must be alleged in the information. Being favorable, this new rule
can be given retroactive effect as they are applicable to pending cases.[50] In any case, Tangan was acquitted of
the illegal possession case.
8
Consequently, Tangan should be sentenced to suffer the penalty of reclusion temporal. Pursuant to
Article 64 of the Revised Penal Code, if the prescribed penalty is composed of three periods, and there is neither
mitigating nor aggravating circumstance, the medium period shall be applied. Applying the Indeterminate
Sentence law, the maximum of the indeterminate penalty shall be that which, in view of the attendant
circumstances, may be properly imposed, which in this case is reclusion temporal medium with an
imprisonment range of from fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and
four (4) months. The minimum of the indeterminate sentence shall be the next lower degree which is prision
mayor with a range of from six (6) years and one (1) day to twelve (12) years. [51] Hence, petitioner Tangan is
sentenced to an indeterminate penalty of six (6) 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.
The death indemnity of P30,000.00 was correctly increased by the appellate court to P50,000.00 in line
with jurisprudence.[52] Moral damages are awarded in criminal cases involving injuries if supported by evidence
on record,[53] but the stipulation of the parties in this case substitutes for the necessity of evidence in support
thereof. Though not awarded below, the victims heirs are entitled to moral damages in the amount of
P50,000.00 which is considered reasonable considering the pain and anguish brought by his death. [54]
WHEREFORE, the petition in G.R. No. 103613 is DISMISSED. The appealed decision subject of G.R.
No. 105830 is AFFIRMED with the following MODIFICATIONS:
(1) Tangan is sentenced to suffer an indeterminate penalty of six (6) 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, with all the accessory penalties.
(2) Tangan is ordered to pay the victims heirs P50,000.00 as civil indemnity, P42,000.00 as funeral and
burial expenses, P5,000.00 as attorneys fees, and P50,000.00 as moral damages.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.
G.R. No. L-45100 October 26, 1936
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
EPIFANIO DIOKNO and ROMAN DIOKNO, defendants-appellants.
Ramon Diokno and Gabriel N. Trinidad for appellants.
Office of the Solicitor-General Hilado for appellee.
VILLA-REAL, J.:
Epifanio Diokno and Roman Diokno appeal to this court from the judgment of the Court of First Instance of
Laguna, the dispositive part of which reads as follows:
In view of the foregoing considerations, the court finds the accused Epifanio Diokno and Roman
Diokno guilty of the crime of murder, beyond a reasonable doubt, and sentences each of them
to reclusion perpetua, to indemnify jointly and severally the heirs of the deceased in the sum of
P1,000 and to pay the costs of the suit. It is so ordered.
In support of their appeal, the appellants assign the following alleged errors as committed by the court a
quo in its judgment in question, to wit:
1. The lower court erred in accepting Exhibit E as evidence.
2. The lower court erred in admitting Exhibit K as evidence.
3. The lower court erred in not acquitting the appellant Roman.
4. The lower court erred in sentencing the appellant Epifanio to reclusion perpetua.
The following facts have been proven beyond a reasonable doubt during the trial:
The deceased Yu Hiong was a vendor of sundry goods in Lucena, Tayabas. At about 7 o'clock in the morning
of January 4, 1935, Salome Diokno, to whom Yu Hiong was engaged for about a year, invited the latter to go
with her. Yu Hiong accepted the invitation but he told Salome that her father was angry with him. Salome
answered him: "No matter, I will be responsible." At about 6 o'clock in the afternoon of said day, Yu Hiong
and Salome Diokno took an automobile and went to the house of Vicente Verina, Salome's cousin, in
Pagbilao. As they found nobody in the house, they went on their way up to San Pablo, Laguna. On January
5th or 6th of said year, Roman Diokno telegraphed his father Epifanio Diokno, who was in Manila,
informing him that Salome had eloped with the Chinese Yu Hiong. On the morning of January 7, 1935,
Epifanio Diokno and Roman Diokno went to San Pablo, Laguna, in search of the elopers. Having been
informed that the latter were stopping at the house of Antonio Layco, they went there. Upon arriving near the
house, they saw Yu Hiong coming down the stairs. When Yu Hiong saw them, he ran upstairs and they
pursued him. As the Chinese found the door of the house locked, he shouted that it be opened for him. At that
moment, he was overtaken by the accused who carried knives locally known as balisong, of different sizes.
Yu Hiong fell on his knees and implored pardon. In that situation Roman Diokno stabbed him with the knife
in the back and later in the left side. Epifanio Diokno also stabbed him once. Yu Hiong fell on the landing of
the stairs in the balcony, and there he was again stabbed repeatedly. Then Roman Diokno said: "Enough,
father." Yu Hiong lost consciousness. Juan Alcantara, who lived on the same street, Hermanos Belen, in front
of Antonio Layco's house, saw the accused pursue Yu Hiong and fired shots for the police to come. Upon
hearing the shots, municipal policeman Francisco Curabo appeared and found Yu Hiong pale and lying on
the landing of the stairs. He then asked who had wounded the Chinese and the accused Epifanio Diokno
answered that it was he. The policeman took the knife (Exhibit C) which Epifanio Diokno carried in his right
hand and brought him to police headquarters. Roman Diokno had left before the policeman arrived and he
was not located until after three days. The municipal president of San Pablo, Laguna, also went to the scene
of the crime, found the Chinese almost unconscious and questioned him, putting down his answers in Exhibit
E. The Chinese was brought to the provincial hospital of San Pablo where he was examined by Drs. David
Evangelista and Manuel Quisumbing, who found that he had five incised wounds in different parts of the
body, one of them at the back and about three and a half inches long, piercing the pleura and penetrating the
lower lobe of the right lung about an inch, which wound was necessarily mortal and which caused the death
of the victim. On January 8, 1935, while the said Chinese was in a serious condition in the hospital, he made
a statement telling how he was attacked by the accused (Exhibit K).
The accused, testifying as witnesses in their own behalf, stated that they had not gone to San Pablo together
on the day in question; that when Roman Diokno arrived, his father Epifanio Diokno was coming down the
stairs of Antonio Layco's house with a knife in his hand; that Epifanio Diokno told his son Roman to go
home and tell their relatives what had happened; that when Epifanio Diokno overtook Yu Hiong on the
landing of the stairs of Antonio Layco's house, he asked Yu Hiong whether he was willing to marry his
daughter; that the Chinese answered him in the negative and at the same time tried to take something from
his pocket; that as Epifanio knew that Yu Hiong carried a revolver, he feared the Chinese might harm him; he
became obfuscated, drew his knife and knew not what happened afterwards.
The first question to be decided in the present appeal is whether or not the court a quo erred in admitting as
evidence Exhibit E, consisting in the investigation conducted by the municipal president of San Pablo in the
same place where Yu Hiong had fallen a few minutes before, at about 1.30 p. m. on January 7, 1935, and
wherein Yu Hiong, answering the questions asked by said municipal president, stated that it was Ramon
Diokno and Epifanio Diokno who had wounded him.
It is argued by the defense that said document Exhibit E should not be admitted on the ground that some
words had been altered and because it has not been proven that declarant had a sense of impending death.
It does not appear that said document was altered after it had been signed, but on the contrary, municipal
president Jacinto Peñaflor, upon being cross-examined by the defense, declared that he neither erased any
word nor put another in its place after said document had been finished.
The fact that Yu Hiong failed to state that he had given up all hope of life, in answering the municipal
president's questions, does not make his declaration inadmissible. It is enough if, from the circumstances of
the case, it can be inferred with certainty that such must have been his state of mind (People vs. Chan Lin
Wat, 50 Phil., 182). In the present case, Yu Hiong was semiconscious as a result of the wounds received by
him and, consequently, he could not have the hope to live when he made his declaration immediately after he
was mortally wounded. But even if the document Exhibit E were not admissible as an ante
mortem declaration, it is admissible as a part of the res gestæbecause it was made under circumstances so
proximate to the incident that it may be considered as a part thereof. (People vs. Portento and Portento, 48
Phil., 971; People vs. Palamos, 49 Phil., 601.)
The first assignment of alleged error is, therefore, untenable.
With respect to the second assignment of alleged error consisting in that the court a quo erred in admitting
Exhibit K as an ante mortem declaration of Yu Hiong, because it does not appear that when the declarant
made it he was aware of impending death and that he did not die until three days after making it, all that has
been said relative to Exhibit E, which is the subject matter of the first assignment of alleged error, may be
repeated in connection with said Exhibit K, in the sense that it is admissible as an ante mortem declaration.
Furthermore, when the deceased made the declaration Exhibit K, he complained of great difficulty in
breathing and of being very ill. The fact that he did not die until three days later neither implies that he had
no sense of impending death when he made his declaration because he did not improve thereafter but became
worse until he died; nor detracts from its character of an ante mortem declaration because what gives the
declaration such character is the declarant's conviction, upon making it, that he is not going to live (U.
S. vs. Mallari, 29 Phil., 14).
9
The third assignment of alleged error consists in the failure of the court a quo to acquit the appellant, Roman
Diokno.
The testimony of the eyewitnesses Juan Alcantara and Antonio Layco corroborated by the different
dimensions of the wounds which, according to Dr. Manuel Quisumbing, were caused by two instruments of
different sizes, and the ante mortem declarations (Exhibits E and K) of the deceased, leave no room for doubt
that Roman Diokno cooperated with his father and stabbed the deceased Yu Hiong with a knife in different
parts of the body. Furthermore, the deceased stated in his ante mortem declaration (Exhibit K) that it was
Roman Diokno who inflicted the necessarily mortal wound in his back, which caused his death.
We find the fourth assignment of alleged error well founded. The circumstance of abuse of superior strength,
qualifying the crime of murder, which the trial court found to have been proven, has not been established
beyond a reasonable doubt. In the case of United States vs. Devela (3 Phil., 625), this court said that "the
mere fact that the number of the assailants is superior to that of those attacked by them is not sufficient to
constitute the aggravating circumstance of abuse of superiority." In this case we have the photographs of the
body of the deceased (Exhibits D and D-1) showing that he had a strong constitution: but there is no evidence
of the physical constitution of the accused Epifanio Diokno and Roman Diokno. Therefore, we cannot
determine whether or not said accused were physically stronger than the deceased and whether or not they
abused such superiority.
Neither does this court find the existence of the other circumstance qualifying murder, that is, evident
premeditation, proven beyond a reasonable doubt because, even assuming that both the accused went to San
Pablo, Laguna, each carrying the knife used by him in attacking Yu Hiong, it being customary for the people
of said province to carry it, it cannot be inferred with certainty from the mere fact that they carried knives
that their intention in going to San Pablo was to look for the deceased in order to kill him. In order that
premeditation may be considered either as an aggravating circumstance or as a qualifying circumstance, it
must be evident, that is, the intention to kill must be manifest and it must have been planned in the mind of
the offender and carefully meditated. It is not enough that it arose at the moment of the aggression.
Therefore, there having been neither abuse of superior strength nor evident premeditation, the crime
committed by the accused is simple homicide.lâwphi1.nêt
The presence of the fifth mitigating circumstance of article 13 of the Revised Penal Code, that is, immediate
vindication of a grave offense to said accused, may be taken into consideration in favor of the two accused,
because although the elopement took place on January 4, 1935, and the aggression on the 7th of said month
and year, the offense did not cease while Salome's whereabouts remained unknown and her marriage to the
deceased unlegalized. Therefore, there was no interruption from the time the offense was committed to the
vindication thereof. Our opinion on this point is based on the fact that the herein accused belong to a family
of old customs to whom the elopement of a daughter with a man constitutes a grave offense to their honor
and causes disturbance of the peace and tranquility of the home and at the same time spreads uneasiness and
anxiety in the minds of the members thereof.
The presence of the sixth mitigating circumstance of said article 13, consisting in having acted upon an
impulse so powerful as naturally to have produced passion or ofuscation, may also be taken into
consideration in favor of the accused. The fact that the accused saw the deceased run upstairs when he
became aware of their presence, as if he refused to deal with them after having gravely offended them, was
certainly a stimulus strong enough to produce in their mind a fit of passion which blinded them and led them
to commit the crime with which they are charged, as held by the Supreme Court of Spain in similar cases in
its decisions of February 3, 1888, July 9, 1898, February 8, 1908, May 25, 1910, July 3, 1909, and in other
more recent ones.
The seventh circumstance of article 13 of the Revised Penal Code, consisting in having surrendered himself
immediately to the agents of persons in authority, should also be taken into consideration in favor of the
accused Epifanio Diokno.
In view of the foregoing considerations, this court concludes that the accused are guilty beyond a reasonable
doubt of the crime of homicide defined and punished in article 249 of the Revised Penal Code, the penalty
prescribed therein being reclusion temporal in its full extent. Three mitigating circumstances must be taken
into consideration in favor of the accused Epifanio Diokno and two in favor of the accused Roman Diokno,
with no aggravating circumstance, thus authorizing the imposition of the penalty next lower to that
prescribed by law (reclusion temporalin its full extent), or prision mayor in its full extent, in the period that
this court deems applicable, which is the medium period in this case, in accordance with the provisions of
article 64, rule 5, that is eight years and one day ofprision mayor.
Both accused should be granted the benefits of the indeterminate sentence provided in Act No. 4103, as
amended by Act No. 4225, which prescribes a penalty the minimum of which shall be taken from that next
lower to prision mayor, or prision correccional of from six months and one day to six years. Taking into
account the circumstances of the case, the indeterminate penalty to which each of said accused must be
sentenced is fixed at from two years and one day of prision correccional to eight years and one day
of prision mayor, crediting each with one-half of the time during which they have undergone preventive
imprisonment (art. 29, Revised Penal Code).
Wherefore, this court declares the accused Epifanio Diokno and Roman Diokno guilty of the crime of
homicide and sentences each of them to an indeterminate penalty from two years and one day of prision
correccional to eight years and one day of prision mayor, crediting them with one-half of the time during
which they have undergone preventive imprisonment, and to indemnify the heirs of the deceased in the sum
of P1,000, with the costs of both instances. So ordered.
Avanceña, C. J. Abad Santos, and Imperial, JJ., concur.
Separate Opinions
LAUREL, J., concurring and dissenting:
I accept the conclusion of the majority of my brethren that the crime committed by the defendants and
appellants was simple homicide as the existence of either the qualifying circumstance of evident
premeditation (art. 14, par. 13, Revised Penal Code) or that of abuse of superior strength (art. 14, par. 15,
Revised Penal Code), has not been clearly established. The mere fact that the two appellants were both armed
with balisong knives and that the deceased knelt before them and implored forgiveness for what he had done
is not in my opinion, necessarily conclusive of the concurrence of abuse of superior strength in the
commission of the crime (besides U. S. vs.Devela, 3 Phil., 625, 629, vide I Viada, Codigo Penal, pp. 278,
279). To constitute abuse of superior strength, it is necessary to show with sufficient clearness
(People vs. Trumata and Baligasa, 49 Phil., 192, 194), that the aggressors, individually and collectively, were
greatly superior in strength to the offended party (People vs. Dayug and Bannaisan, 49 Phil., 423, 427).
For the reason given in the majority opinion, I also agree to the taking into account of the mitigating
circumstance of the appellants having acted upon an impulse powerful as natural to have produced passion or
obfuscation (art. 13, par. 6, Revised Penal Code).
I also agree in according to the appellant, Epifanio Diokno, the mitigating circumstance of voluntary
surrender. (Art. 13, par. 7, Revised Penal Code.)
I am of the opinion, however, that the mitigating circumstance of immediate vindication of a grave offense
(art. 13, par. 5, Revised Penal Code) should not be considered in favor of the appellants. It should be
observed that the proximate cause of the tragedy was the elopement of Salome, the daughter of Epifanio and
the sister of Roman. Salome and the deceased had been engaged for about a year and the evidence shows that
the elopement took place at the instance of Salome herself. Under existing legislation, a woman eighteen
years of age or over, can contract marriage without the consent of her parents. If she leaves the parental home
for this purpose, neither she nor her lover commits any offense. Under the doctrine laid down by the majority
in the present case, if a woman thirty or more years of age should leave the parental home for the purpose of
marrying or for some kind or species of that romance described by Tennyson in his Idylls of the King or by
Scott in his Lay of the Last Minstrel, against the wishes of her parents, and her father or brother should, in hot
pursuit, overtake the impassioned Romeo and kill him on the spot, the enraged assailant or assailants would
be accorded the benefit of the mitigating circumstance of having acted in immediate vindication of a "grave
offense" committed against them, notwithstanding the maturity or overmaturity in age of the woman and the
fact that the elopement was had at her instance and upon her invitation. It seems to me that the interpretation
is not in keeping with the mores of the times. Filial respect and family traditions are best conserved by home
education or environment, not to speak of other factors, rather than by the rigid or liberal application of the
penal laws. The act of the deceased in eloping with Salome, at the invitation of the latter was not a "grave
offense" which called for or justified immediate vindication.
Disregarding the mitigating circumstance of immediate vindication, considering, furthermore, that there are
no aggravating circumstances attendant in the commission of the offense, and applying the provisions of
article 64 of the Revised Penal Code and those of the Indeterminate Sentence Law, Epifanio Diokno, having
in his favor two mitigating circumstances, should be sentenced to an indeterminate prison term ranging from
four years, two months and one day of prision correccional to ten years and one day of prision mayor, and
Roman Diokno, having in his favor only one mitigating circumstance, should be sentenced to an
10
indeterminate prison term ranging from six years and one day of prision mayor to twelve years and one day
of reclusion temporal.
DIAZ, J., dissenting:
I am firmly convinced that the crime committed by the appellants is not simply homicide but murder. It is so
qualified by the proven fact that abuse of superior strength, which is one of the circumstances raising
homicide, if committed to the category of murder, was present in the commission thereof (art. 248, subsec. 1,
of the Revised Penal Code).
From Juan Alcantara's testimony to which the court gives absolute credit, so that it is stated in the majority
opinion that he saw the appellants pursue the deceased, Yu Hiong, on said occasion, and that he fired shots in
the air in order to call the police for help, it appears that upon looking out of the window of his house, almost
fronting that of Antonio Layco on the landing of whose stairs the crime was committed, he saw the deceased
running along Hermanos Belen Street pursued at close range by the appellants, anxious to enter Layco's
house about twenty or twenty-five meters away (t. s. n., page 57), in order to escape from the aggression of
which he was the victim. It likewise appears that as he saw, upon arriving at the landing of the stairs of
Layco's house, that the same was closed and that he had no other means of escape, not having as he, in fact,
did not then have any instrument to defend himself, he fell on his knees, and in that position asked the
appellants, his pursuers, to forgive him. It finally appears that instead of stopping before such attitude of the
deceased, which clearly indicated surrender and acknowledgment of his helplessness, said appellants
attacked him with their respective weapons, wounding him in the back, in the side and in other parts of the
body, giving him no peace until they saw him down and bathed in his own blood. I am of the opinion that
when two armed persons attack another who is not armed, as the appellants did to Yu Hiong who was then
completely unarmed and showed signs of submission to them by falling on his knees and imploring their
forgiveness, the circumstance of abuse of superior strength clearly and undeniably exists. It is because one
who flees, falls on his knees later when he can no longer evade his pursuers, and immediately asks
forgiveness, shows not only his desire not to resist but his conviction that he is powerless to offer resistance,
thereby admitting his inferiority and the superiority of his assailants. The Supreme Court of Spain, after
whose Penal Code ours is patterned, settled a similar question substantially in this sense, in its decision of
June 17, 1872.
In a decision of January 23, 1887, said court, resolving the question whether or not the circumstance of abuse
of superior strength should be taken into consideration in a case where two persons attack another, there
being no disparity in physical strength between the attackers and the attacked, and the former committed the
aggression with arms, the latter having only a small rod to defend himself, sustained the affirmative.
In another decision of January 14, 1899, the question whether or not there was abuse of superior strength in a
case where two persons, one armed with a cane and the other with a big stone, attacked another who was
unarmed, was likewise resolved by said court in the affirmative.
The question whether or not the accused, who simultaneously pursued their completely unarmed victim,
overtook, surrounded and attacked him later with steel weapons, mortally wounding him, acted with abuse of
superior strength, was similarly determined in the decision of January 17, 1919, the court having held therein
that singleness of action and purpose was present in taking advantage of the victim's lack of means of
defense, with the correlative odds in favor of the aggressors.
Abuse of superior strength is generally determined by the excess of the aggressor's natural strength over that
of the victim, taking into consideration the momentary positions of both and the employment of means
weakening the defense , although not annulling it (decision of the Supreme Court of Spain of March 6, 1928).
If the case under consideration were to be considered in this light, the conclusion must be that the appellants
really acted with abuse of superior strength.
Considering the act committed by the appellants a manifest murder, and not homicide, due to the presence of
the qualifying circumstance of abuse of superior strength, and it being a fact that the mitigating
circumstances stated in the majority opinion were present in the commission thereof, I am of the opinion that
the penalty that should be imposed upon them, under article 64, rule 5, of the Revised Penal Code, is from
ten years and one day of prision mayor to seventeen years and four months of reclusion temporal, said
penalty being next lower to that prescribed for the crime of murder, or at least, the indeterminate penalty of
from five years of prision correccional to ten years and one day of prision mayor, in accordance with Act
No. 4103. With due respect to the majority opinion, I dissent therefrom and vote as herein stated.
G.R. No. L-32042 December 17, 1976
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ALBERTO BENITO y RESTUBOG accused-appellant.
RESOLUTION
AQUINO, J.:
Alberto Benito was sentenced to death by the Circuit Criminal Court of Manila after he pleaded guilty to the
charge of murder for having shot with a .22 caliber revolver Pedro Moncayo, Jr. on December 12, 1969. The
killing was qualified by treachery and aggravated by premeditation and disregard of rank. It was mitigated by
plea of guilty.
After a mandatory review of the death sentence, this Court in its decision of February 13, 1975 affirmed the
judgment of conviction. It appreciated in Benito's favor the mitigating circumstance of voluntary surrender.
The penalty was reduced to reclusion perpetua. (People vs. Benito, 62 SCRA 351).
Benito filed a motion for reconsideration. He contends that he is entitled to the mitigating circumstance of
immediate vindication of a grave offense and that the aggravating circumstances of disregard of rank should
not be appreciated against him.
Benito, 26, a native of Naga City, in his sworn statement , which was taken, about five hours after the
shooting, by Corporal E. Cortez and Patrolmen J. de la Cruz, Jr., and
H. Roxas of the Manila Police, recounted the background and circumstances of the tragic incident in this
manner (Exh. A):
... alam ninyo ho, ako ay dating empleyado ng Civil Service Commission sa kalye P.
Paredes, Sampaloc, Maynila, at ako ay Clerk 2 sa Administrative Division at ako ay
nagumpisa ng pagtratrabaho sa Civil Service magmula pa noong November, 1965 ng
ako ay nasuspende sa aking trabaho dahil kinargohan nila ako ng "DISHONESTY" at
nasuspende ako ng 60 days at nabalik ako sa trabaho noong January 1966 pero
kinarguhan uli nila ako ng "MALVERSARTION OF PUBLIC FUNDS, QUALIFIED
THEFT, ESTAFA at FALSIFICATION OF PUBLIC DOCUMENT at dinimanda din
ako ng Civil Service ng Administrative case ng "DISHONESTY" at dinismiss na ako
sa trabaho ni Commissioner Subido noong February 16, 1966.
At magmula noon ay nawalan na ako ng trabaho pero lahat ho noong kinargo nila sa
akin na sinabi ko sa inyo ay "fabricated" lang ang mga evidensiya at ang gumawa ho
noong ay ang binaril ko kanina na si PEDRO MONCAYO JR. Y RAMOS at naka
pending pa ngayon sa City Fiscal ng Maynila kay Asst. Fiscal Magat at iyon namang
"dismissal order" ni Commissioner Subido ay inapela ko sa Civil Service Board of
Appeals.
Magmula noong Idinismiss nila ako sa aking trabaho dahil sa "fabricated" charges ay
naghirap na ko sa aking buhay at nahihiya ako sa mga kaibigan ko. Ako ay assign(ed)
sa collecting department noon at nagagalit sa akin ang mga empleyado ng Civil
Service dahil mahigpit ako sa kanila.
Noong bandang alas 7:00 ng gabi noong Dec. 11, 1969, ako ay nagpunta sa Civil
Service sa kalye Paredes at nakita ko si PEDRO MONCAYO, Jr. at kinausap ko siya
at tinanong ko siya na iyong kaso ko ay matagal na at hindi pa natatapos at baka
matulungan niya ako at ang sagot niya ay "UMALIS KA NA NGA DIYAN BAKA
MAY MANGYARI PA SA IYO AT BAKA IPAYARI KITA DITO" at umalis na ko.
Kaninang bandang alas 11:00 ng umaga ay nagkita kami ni PEDRO MONCAYO Jr.
sa loob ng compound ng Civil Service at sa harapan ng maraming tao sinabi niya na
"NAGIISTAMBAY PALA DITO ANG MAGNANAKAW" kaya ang ginawa ko ay
umalis na ako.
Kaninang bandang alas 5:25 ng hapon, nitong araw na ito, Desiyembre 12, 1969,
nakita ko si PEDRO MONCAYO Jr. na nagmamanejo noong kotse niya sa kalye P.
Paredes sa tapat ng Civil Service, sinundan ko siya at pagliko ng kotse niya sa kanto
ng P. Paredes at Lepanto, Sampaloc, Maynila, ay binaril ko siya ng walong beses at
tinamaan siya at napatumba siya sa kaniyang upuan sa kotse.
Pagkatapos ay tumawag ako sa telepono sa MPD Headquarters para sumurender at
kayo nga ang dumating kasama ninyo iyong mga kasama ninyo.
Benito surrendered to the police the revolver (Exh. C) used in the shooting with the eight empty shells of the
bullets which he had fired at Moncayo.
The Police report contains the following background and description of the killing (Exh. B):
According to the suspect, he was a former employee of the Civil Service Commission
at its main office located at P. Paredes, Sampaloc. Mla., and was assigned as Clerk 2 in
the Administrative Division from Nov. 1963 continuously up to Nov. 1965 when he
was suspended for "DISHONESTY".
11
After two months, he was reinstated but was criminally charged for QUALIFIED
THEFT, MALVERSATION OF PUBLIC FUNDS, ESTAFA and FALSIFICATION
OF PUBLIC DOCUMENTS and administratively charged for "DISHONESTY"
culminating in his dismissal from the Civil Service on February 1966.
The aforecited criminal charges against the suspect was allegedly investigated by Asst.
Fiscal MAGAT. Records from the CRID, MPD, reveals that on Dec. 6, 1966, Hon.
Judge ROAN of the City Court of Mla. issued a Warrant No. E-316758 for the arrest
of the suspect for the crime of ESTAFA.
On May 24, 1969, Hon. Judge JUAN O. REYES of the CFI of Mla. issued an order
No. OA-87409 for the arrest of the suspect for the crime of MALVERSATION OF
PUBLIC FUNDS. According to the suspect, the aforecited criminal and administrative
charges filed him were allegedly instigated and contrived by the victim and since the
time of his dismissal, he was allegedly jobless.
On Dec. 11, 1969, the suspect went to the Civil Service at P. Paredes st. and requested
the victim to help him in his cases but the former allegedly uttered to the suspect
"UMALIS KA NGA DIYAN BAKA MAY MANGYARI PA SA IYO AT BAKA
IPAYARI KITA DITO".
The suspect left and returned the following morning at 11:00 a.m. of Dec. 12, 1969,
and when they met again, the victim allegedly remarked in the presence of many
people, "NAGIISTAMBAY PALA DITO ANG MAGNANAKAW". The suspect who
was humiliated and incensed, left.
At about 5:25 p.m. of that same day, Dec. 12, 1969, the suspect who was armed with
an unlicensed Cal. 22 black revolver (w/ SN - P-5317, Trademarked "SENTINEL",
SQUIRES BINGHAM MFG. CO. INC. MLA. P.I.) loaded with nine (9) live Cal. 22
bullets in its cylinder, waited for the victim outside the Civil Service compound at P.
Paredes st. Sampaloc, Mla.
The victim showed up and drove his green Chevrolet 2 door car (w/ Plate No.
L-10578 Mla. 69) along P. Paredes st. The suspect with evident premeditation,
surreptitiously followed the victim and when the latter's car was at a full stop at the
corner of Lepanto and P. Paredes sts. due to heavy traffic of motor vehicles, the
suspect without any warning or provocation, suddenly and treacherously shot the
victim eight (8) times on the head and different parts of the body at closer range which
consequently caused the latter's death on the spot inside his car.
The suspect then fled while the victim was conveyed on board a red private car (w/
Plate No. L-55117) by his co-employees (composed of VICTOR VILLAR,
ELEUTERIO MENDOZA & FORTUNATO JOSE Jr.) to the FEU Hospital.
Unfortunately, the victim was pronounced DOA by Dr. P. PAHUTAN, SOD, at 5:40
p.m. of Dec. 12, 1969.
The thirty-six year old victim, a certified public accountant, was the Assistant Chief of the Personnel
Transactions Division and Acting Chief, Administrative Division of the Civil Service Commission (Exh. E to
E-2). The accused was a clerk in the cash section, Administrative Division of the Commission, receiving
P1,884 per annum (Exh. D). He started working in the Commission on November 7, 1963.
On October 21, 1965 Moncayo, as an administrative officer, reported to the Commissioner of Civil Service
that Benito admitted having malversed an amount between P4,000 and P5,000 from his sales of examination
fee stamps. Moncayo's report reads as follows (Exh. F):
MEMORANDUM for
The Commissioner
Through Proper Channels
This refers to the case of Mr. ALBERTO R. BENITO, Clerk II in the Administrative
Division of this Commission, who, as had previously been reported, malversed public
funds in the amount of approximately P5,000.00 out of his collections from the sale of
examination fee stamps.
I wish to state that this matter came to my attention on the evening of March 1, 1965
when Mr. Teodoro Abarquez, Acting Cashier I, reported to me that fifty (50) money
orders at P2.00 each with a total vlaue of P100.00 were missing from a bundle of
money orders received from the Provincial Treasurer of Cotabato, which were kept by
him in one of the cabinets inside the Cashier's Cashier' room.
At the same time he also informed me that he suspected that Mr. Benito stole the
missing money orders. His suspicion arose from the fact that he found several money
orders marked "Cotabato" as their place of issue among the cash receipts turned over
to him by Mr. Benito that afternoon as his collection from the sale of examination fee
stamps. Mr. Abarquez showed to me the said money orders issued in Cotabato which
were turned over to him by Mr. Benito and after checking their serial numbers with the
records of list of remittances on file, we were able to establish definitely the fact that
the said money orders were those missing.
It may be stated that at that time, Mr. Benito was assigned to work in the Cash Section
and one of his duties was to sell examination fee stamps to applicants for
examinations. It was then the practice of the cashier to issue to Mr. Benito in the
morning examination fee stamps to be sold during the day and in the afternoon he
turned over to the Cashier the proceeds from the sale of stamps including the unsold
stamps issued to him. After considering the work performed by Mr. Benito, it became
evident that he succeeded in malversing the amount of P100.00 by substituting
equivalent amount of money orders in the place of the cash extracted by him from his
daily collections from the sale of examination fee stamps when he clears his
accountability with the Cashier.
The following day, I confronted Mr. Benito in the presence of Mr. Abarquez and ask
him whether he had something to do with the loss of the fifty (50) money orders at
P2.00 each. At first he denied, but when I asked him where he obtained the money
orders issued in Cotabato which were included in his collections the day preceding, he
admitted having stolen the missing money orders.
Having confessed his guiltk, I then asked Mr. Benito when he started committing the
said irregularity and how much in all did he actually malversed out of his daily
collections from the time that he started the anomaly. He stated in the presence of Mr.
Abarquez that he started in January, 1965 and that although he did not know exactly
the total amount malversed by him, he believed the amount to be between P4,000.00 to
P5,000.00. He also confessed that he used the money orders remitted by the Provincial
Treasurer of Negros Occidental in the amount of P3,436.00 in substituting various
amounts extracted by him from his daily cash collections and used by him for personal
purposes.
It appears from the records that the List of Remittances covering the money orders
received from the Provincial Treasurer of Negros Occidental was duly receipted by
Mr. Benito. He was supposed to issue an Official Receipt therefor in favor of the said
Provincial Treasurer and then turn over to the Cashier the amount involved for deposit
to the National Treasurer. The said List of Remittances, duly signed by Mr. Benito, is
enclosed for use as evidence in this case.
I told Mr. Benito that I cannot do anything but report the matter to the Commissioner.
However, he pleaded that he be given first an opportunity to restore the amount before
I make my report in order that the penalty that may be imposed upon him may be
lessened to a certain degree. As I thought it wise in the interest of the service to
recover the amount involved, I allowed him to go and see his parents in Naga City to
raise the amount in question.
After two weeks, Mr. Benito informed me that his parents filed an application for a
loan with the Government Service Insurance System and that the proceeds of the said
loan which he intended to use in restoring the amount malversed by him were expected
to be released during the last week of May, 1965. However, when the month of May,
1965 elapsed without the amount involved having been restored, I conferred with Mr.
del Prado, my immediate superior and asked him whether we should wait further for
the release of the said loan in order that the amount involved may be recovered. Mr.
Prado consented to giving him a little more time.
When Mr. Benito still failed to restore the amount in question by the end of June,
1965, I got hold of him on July 5, 1965 and together with Messrs. del Prado, Abarquez
and Gatchalian, also of this Commission, brought him before Deputy Commissioner
A. L. Buenaventura and reported the entire matter to the Deputy Commissioner. In the
presence of Messrs. del Prado, Abarquez, Gatchalian and myself, Mr. Benito admitted
12

readily and voluntarily before the Deputy Commissioner the commission of the An investigation made by this Commission shows that you
offense of malversation of public funds as stated above. malversed public funds in the amount of P3,536.00 out of your
In view of the foregoing, it is recommended that Mr. Benito be charged formally and collections from the sale of examination fee stamps while in the
that he be suspended from office immediately considering the gravity of the offense performance of your official duties as Clerk II in the Cash
committed by him. Section, Administrative Division of this Office. It appears that
( you succeeded in malversing the above-stated amount from your
S cash collections by substituting in lieu thereof money orders
g worth P3,436.00 remitted to this Commission by the Provincial
d Treasurer of Negros Occidental which were duly receipted for
. by you. It also appears that you extracted from a bundle of
) money orders remitted by the Provincial Treasurer of Cotabato
P the amount of P100.00 in money orders which were kept in one
E of the cabinets in the Cashier's room.
D Respondent denied the charge. He explained, among others, that money orders were
R always kept in the Cashier's safe and he had no access to them. Although he admitted
O having received money orders amounting to P3,436.00 remitted by the Provincial
R Treasurer of Negros Occidental and another remittance of the Provincial Treasurer of
. Cotabato he, however, disclaimed having substituted the same for cash collections in
M his sale of examination fee stamps. He reasoned out further that he could not be
O charged with malversation of public funds inasmuch as he was not then an accountable
N officer.
C It appears that respondent, as Clerk in the Cash Section, performs, among other duties,
A the selling of examination fee stamps, receiving payments therefor, and receiving
Y remittances in form of cash and/or money orders from provincial treasurers in
O connection with examinations held in the provinces. It was also his duty to issue
A official receipts for said remittances. In the course of the performance of his duties, he
d received said remittances from the Provincial Treasurers of Negros Occidental and
m Cotabato, but no official receipts were issued by him, as shown by the reply telegrams
i pertaining thereto. While records disclose that remittances from the province of
n Cotabato were submitted to the Cashier of the Civil Service Commission, there is no
i evidence showing that remittances from Negros Occidental were likewise submitted.
s Investigation further reveals that 50 money orders were discovered missing from the
t remittances of Cotabato Provincial Treasurer which were kept in the cabinet of the
r Cashier. On or about March 2, 1965, the Cashier of the Commission noticed that 15
a money orders turned over by respondent as part of his collections in the sale of
t examination fee stamps were among the missing money orders. This triggered off the
i filing of this case against the respondent.
v On July 5, 1965, respondent admitted before the then Deputy Commissioner Alipio
e Buenaventura having misappropriated an aggregate amount ranging from P3,000 to
O P7,000, which he spent in night clubs, pleasure spots and other personal benefits.
f Despite the testimonies of several witnesses regarding his confession, including that of
f the then Deputy Commissioner himself, respondent, when asked to take the stand,
i denied his previous admission.
c Instead, he argued that the cash and accounts of the Cashier of the Civil Service
e Commission, when examined by representatives of the Auditor's Office, did not
r indicate any shortage and therefore there was no irregularity involved. This argument
I is not well taken. Inasmuch as the remittances received by respondent from said
I Provincial Treasurers of Negros Occidental and Cotabato were not in turn given
Benito was charged with dishonesty. He had admitted to Deputy Commissioner Alipio Buenaventura that he corresponding official receipts, naturally, the same were not reflected on the Cashier's
had misappropriated his collections and spent the amount in nightclubs and pleasure spots and for personal cash book.
purposes. The decision dismissing him from the service reads as follows (Exh. G): The weakness of respondent's defense lies not so much on its failure to establish
This is an administrative case against Mr. Alberto R. Benito, Clerk I, Cash Section, convincingly his innocence as its irreconciliability with established facts. Obviously,
Administrative Division of this Office, for dishonesty. none of the circumstances in this case is consistent with his claim of innocence. On the
The following excerpts from the letter dated October 22, 1965 of the Commissioner of contrary, all of them put together produce reasonable assurance of respondent's guilt.
Civil Service connect respondent with the alleged misappropriation of public funds In view of the foregoing, this Office finds respondent Alberto R. Benito guilty as
representing his collection from the sale of examination fee stamps and constitute the charged. Wherefore, he is dismissed from the service effective upon his receipt of this
basis of the instant case against him: decision.
13
In the interest of the service this decision is executed also on the date of his receipt of
this decision.
Benito appealed to the Civil Service Board of Appeals from the Commissioner's decision dismissing him.
The appeal was pending at the time when he assassinated Moncayo (Exh. I).
The foregoing antecedents of the assassination shed light on the remark which the victim, Moncayo,
allegedly made upon seeing Benito in the compound of the Civil Service Commission near the canteen at
eleven o'clock in the morning of December 12, 1969 (about six hours before the shooting): "Nagiistambay
pala dito and magnanakaw." (Exh. A or 1); or, as Benito testified, Moncayo said: "Hindi ko alam na itong
Civil Service pala ay istambayan ng magnanakaw." (27 tsn December 26, 1969).
Mitigating circumstance of immediate vindication of a grave offense. — Benito contends that Moncayo
insulted him when he (Moncayo) remarked that a thief was loitering in the premises of the Civil Service
Commission. Benito argues that that remark "was tantamount to kicking a man already down and to rubbing
salt into a raw wound" and that, as it was made publicly and in a loud voice, he was exposed to ridicule in the
presence of his officemates.
Benito attached to his motion a copy of the decision of Judge Jose C. Colayco dated January 16, 1975,
acquitting him of the charge of malversation in connection with his alleged misappropriation of the fees
collected from the examinees of the 1974 patrolman examination. That same decision makes reference to
Benito's exoneration from the administrative charge. The court's decision reads as follows:
The accused is charged with malversation under the following information:
That on or about and during the period comprised between
October 17, 1964, to February, 1965, inclusive, in the City of
Manila Philippines, the said accused being then employed as
Clerk I of the Civil Service Commission, a branch of the
government of the Republic of the Philippines, among whose
duties were to accept payments of fees collected from the
examinees of the 1964 Patrolman examination, and by reason of
his said position received the total amount of P3,536.00, with
the duty to turn over and/or account for his collections to the
cashier of the Civil Service Commission immediately or upon
demand but the said accused once in possession of the said
amount of P3,536.00, with intent to defraud, despite repeated
demands made upon him to turn over and to account for the
same, did then and there willfully, unlawfully and feloniously
misappropriate, misapply and convert and malverse the said
amount to his own personal use and benefit, to the detriment of
public interest and to the damage and prejudice of the said Civil
Service Commission in the said amount of P3,536.00, Philippine
currency.
Contrary to law.
The evidence shows that the accused had an appointment as clerk in the Civil Service
Commission from May 27, 1964, as clerk I, range 23 from June 1, 1965 and as clerk I,
range 26 from July 23, 1965 (Exhibits A, A-1, A-2). He had the duty, among others, of
selling Civil Service examination- fee stamps and to receive payment therefor, as well
as to receive remittances of money orders and checks from the provincial treasurers for
payments of examination fee stamps (Exhibit B).
Teodoro Abarquez, a cashier of the Civil Service Commission during the period
alleged in the information, testified in his direct examination that Benito was working
in his office; that one of the duties that he assigned to him was to sell examination fee
stamps; that it was customary for him to give stamps to Benito at the start of office
hours in the morning and that Benito turned over to him the proceeds of the sale, as
well as the unsold stamps, at the close of office hours in the afternoon; that one
afternoon he noticed that Benito turned over to him 50 money orders from Cotabato,
together with some cash, as proceeds of the sale of stamps for that day; that he
remembered that he was missing money orders from one of his cabinets where he kept
them; that when he discovered that the 50 money orders were those which were
missing, he reported the matter to Pedro Moncayo, the chief administrative officer; on
March 1, 1965; that the money orders were for P2.00 each, and were payments of the
examination fees from Cotabato (Exhibit F); that he discovered the loss of the 50
money orders on February 28, 1965 and reported it to Moncayo on March 1, 1965,
together with the list of missing orders (Exhibit M); that after receiving the report,
Moncayo called Benito to the office of Abarquez where he admitted taking the missing
money orders; that Moncayo submitted a memorandum to the Commissioner, dated
October 21, 1965, after giving Benito a chance to refund the value of the money orders
(Exhibit O). Alipio Buenaventura, acting Deputy Commissioner at the time, and Eliseo
S. Gatchalian, budget officer, testified that when Benito was confronted with the report
of Moncayo and Abarquez, he admitted that he misappropriated about P3,000.00
because of bad company and that he asked for a chance to refund the money.
Under cross-examination, Abarquez elucidated his testimony in his direct examination
and explained that when Benito turned over the proceeds of the sale of stamps for that
particular day, he kept the sum of P100.00 and replaced it with the 50 money orders
that he had taken from the cashier's office to cover up the money that he had pocketed.
When he was asked when he discovered that Benito substituted the 50 money orders
from Cotabato, he answered that he checked them the following night (March 2, 1965)
with the list of money orders remitted by the Provincial treasurer (Exhibits F, F-1); but
when he was confronted with his affidavit which he executed on April 18, 1966
(Exhibit R), he reluctantly admitted that he had only verified 15 money orders missing
as of April 18, 1966 and that he did not keep any record of the money and the money
orders given to him by Benito on March 1, 1965.
He also admitted that the room where he kept the money orders in an unlocked drawer
was also occupied by two other persons, and that this was the first time that he had not
followed the usual procedure of keeping them in the safe. He further admitted that,
although regular examinations were conducted during the period of October 1, 1964 to
February 28, 1965 by the examiners of the Civil Service Commission and the auditors
of the General Auditing Office, they did not find any shortage in the accounts of
Benito.
Finally, when the Court asked him what happened to the 50 money orders, at first he
hinted that they were not deposited with the Bureau of Treasury because they were
reported missing; but when pressed further, he said that he deposited them, but did not
issue any official receipt for them. When asked if he had any evidence to show that
they were actually deposited, he admitted that he could not even remember when he
deposited them.
The testimony of Teodoro Abarquez upon which the prosecution has built its case, is
too weak and shaky to sustain a finding of guilt because of his glaring inconsistencies,
contradictions and gaps in memory. The prosecution has failed to present convincing
evidence that the 50 money orders were even lost: According to Abarquez he had only
verified the loss of 15 on April 18, 1966, although he testified earlier that he
determined the loss of 50 the night after March 1, 1965.
The examiners of the Civil Service Commission and the auditors of the General
Auditing Office did not find any irregularity in the cash accountability of Benito,
according to Abarquez. This was corroborated by Romeo Jarabelo, auditor of the
Commission on Audit and Miguel Games, auditing examiner assigned to the Civil
Service Commission, who testified for the accused. Benito was in fact exonorated the
administrative charge filed against him for the time same transaction (Exhibit E).
In fact, the testimony of Abarquez under cross-examination that he has not issued any
official receipt for the 50 money orders and his inability to prove that he deposited
them with the bureau of Treasury gives rise to the suspicion that other persons, not the
accused, may have stolen the 50 missing money orders. Even without taking into
account the testimony of the accused, who denied the testimonies of the witnesses for
the prosecution, the court believes that the prosecution has failed to prove the guilt of
the accused.
WHEREFORE, judgment is hereby rendered acquitting the accused, with costs de
oficio.
The Solicitor General argues that the defamatory remark imputed to Moncayo cannot give rise to the
mitigating circumstance of vindication of a grave offense because it was not specifically directed at Benito.
The prosecution notes that the remark was uttered by Moncayo at eleven o'clock in the morning. According
to Benito's testimony (not consistent with his confession), he saw Moncayo three hours later or at two o'clock
14
in the afternoon and inquired from him about his case and Moncayo said that he had already submitted his
report and he could not do anything more about Benito's case (26 tan). As already stated, the assassination
was perpetrated at around five o'clock in the afternoon of the same day.
Assuming that Moncayo's remark was directed at Benito, we see no justification under the circumstances
recited above for changing our prior opinion that the mitigating circumstance of "haber ejecutado el hecho en
vindicacion proxima de una ofensa grave, causada al autor del delito," cannot be appreciated in Benito's
favor. As aptly stated by the ponente, Justice Esguerra, Benito "had more than sufficient time to suppress his
emotion over said remark if he ever did resent it."
"La apreciacion de la proximidad queda al arbitrio del tribunal; el Tribunal Supremo (de España) no ha
apreciado la proximidad ... cuando la ofensa se realizo por la mañana y el delito tuvo lugar por
la tarde (Sentencia de 11 noviembre 1921); por regla general no es proxima cuando transcurre tiempo
suficiente para la razon recobre su imperio sobreponiendose a la pasion (Sentencias de 28 mayo 1882, 4
noviembre 1893, 24 junio 1908, etc.) ... Si falta el requisito de la proximidad debe desestimarse (Sentencia de
3 julio 1950). Exige gravedad en la ofensa y proximada en la reaccion." (Note 9, 1 Cuello Calon, Derecho
Penal. 1975 Ed., p. 564).
The Spanish Supreme Court also held that "no puede apreciarse esta circunstancia atenuante en favor del
autor de un homicidio cometido 'algunas horas despues de haberle invitado el interfecto a renir y golpeado en
el pecho con las manos', porque el tiempo transcurrido entre los golpes y la muerte fue suficiente para que el
animo del reo se serenase (Sentencia de 24 Junio 1908, Gaceta 28 Agosto 1909, IV-V Enciclopedia Juridica
Española 1182).
The six-hour interval between the alleged grave offense committed by Moncayo against Benito and the
assassination was more than sufficient to enable Benito to recover his serenity. But instead of using that time
to regain his composure, he evolved the plan of liquidating Moncayo after office hours. Benito literally
ambushed Moncayo just a few minutes after the victim had left the office. He acted with treachery and
evident premeditation in perpetrating the cold-blooded murder.
The facts of the case strongly suggest that what really impelled Benito to assassinate Moncayo was not the
latter's alleged defamatory remark that the Civil Service Commission compound was a hangout for a thief or
for thieves but the refusal of Moncayo to change his report so as to favor Benito. Benito did not act primarily
to vindicate an alleged grave offense to himself but mainly to chastise Moncayo for having exposed the
alleged anomalies or defraudation committed by Benito and for obstinately refusing to change his report.
Aggravating circumstance of disregard of rank.— Benito contends that disregard of rank should not be
considered against him because there was no evidence that he "deliberately intended to offend or insult the
rank" of Moncayo. That contention has no merit.
It should be borne in mind that the victim was a ranking official of the Civil Service Commission and that the
killer was a clerk in the same office who resented the victim's condemnatory report against him. In that
situation, the existence of the aggravating circumstance of "desprecio del respeto que por la dignidad
mereciere el ofendido" is manifest.
The instant case is similar to a case where the chief of the secret service division killed his superior, the chief
of police (People vs. Hollero, 88 Phil. 167) and to the killing of the acting Spanish consul by his subordinate,
the chancellor of the consulate, who had misappropriated the funds of the consulate, which misappropriation
was discovered by the victim (People vs. Martinez Godinez, 106 Phil, 597, 606). In these two cases the
murder was aggravated by disregard of rank.
WHEREFORE, the motion for reconsideration is denied.
SO ORDERED.
Teehankee, Makasiar, Antonio, Concepcion, Jr. and Martin, JJ., concur.
Castro, C. J., Fernando and Muñoz Palma, JJ., concur in the result.
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ROMEO PACOT Y BABAD, Defendant-
Appellant.
The Solicitor General for Plaintiff-Appellee.
Victor N. Alimurung (Counsel de Oficio), for Defendant-Appellant.
SYLLABUS
1. CRIMINAL LAW; MITIGATING CIRCUMSTANCES; VOLUNTARY SURRENDER; REQUISITES
THEREOF; CASE AT BAR. — In order that the mitigating circumstance of voluntary surrender may be
properly appreciated in favor of the accused, it must appear that (a) he had not been actually arrested; (b) he
surrendered himself to a person in authority or his agent; and (c) his surrender is voluntary, which
circumstances are not present in this case (People v. Molo, 88 SCRA 22). For, while appellant did not try to
escape, he did nothing to place himself in the custody of authorities.
2. ID.; ID.; PASSION AND OBFUSCATION; CANNOT BE INVOKED WHEN NOT PRODUCED BY
ANY UNLAWFUL AND SUFFICIENT ACT ON THE PART OF THE CIVIL VICTIMS; CASE AT BAR.
— The mitigating circumstance of passion and obfuscation cannot also be invoked in favor of appellant
considering that this relationship with Yolanda, the common-law wife of Noel Siozon, is illegitimate. The
victims did not do anything which were unlawful and sufficient to produce the passion and obfuscation
contemplated by law. Appellant’s claim that Yolanda kicked him in the genital area was not corroborated;
and even if true, the same could not have resulted in depriving him of reason that has driven him to kill
Yolanda and Dennis, and to almost kill Dianne.
DECISION
RELOVA, J.:
Automatic review of the decision dated March 15, 1982 of the then Circuit Criminal Court of Cebu City in
Criminal Cases Nos. CCC-XIV-2539-Cebu, for Murder; CCC-XIV-2541-Cebu, for Murder; and CCC-XIV-
2542-Cebu, for Frustrated Murder, the dispositive portion of which reads:jgc:chanrobles.com.ph
"WHEREFORE, the Court finds the accused Romeo Pacot guilty beyond reasonable doubt of the crime of
MURDER charged in Criminal Case No. 2539. Finding the presence of the following aggravating
circumstances: disregard of sex; (2) dwelling; (3) abuse of confidence or obvious ungratefulness; (4) abuse of
superior strength; and (5) evident premeditation, while only the mitigating circumstance of plea of guilty
serves to extenuate the crime, the Court is constrained to sentence, as it hereby sentences, the accused to
suffer the extreme penalty of death, with the accessories of the law; to indemnify the heirs of the deceased
Yolanda Margate in the sum of P12,000.00, and to pay the costs.
"As to Criminal Case No. 2541, while We find the presence of the following aggravating circumstances: (1)
disregard of the tender age of the offended party; (2) dwelling; (3) abuse of confidence or obvious
ungratefulness; (4) abuse of superior strength; and (5) evident premeditation, only the mitigating
circumstance of plea of guilty serves to extenuate the crime. Consequently, the accused Romeo Pacot should
be, as he is, hereby sentenced to suffer the extreme penalty of death, with the accessories of the law; to
indemnify the heirs of the deceased Dennis Siozon in the sum of P12,000.00, and to pay the costs.
"As to Criminal Case No. 2542, while We find the presence of the following aggravating circumstances: (1)
evident premeditation; (2) abuse of superior strength; (3) disregard of tender age and sex; and (4) dwelling,
only the mitigating circumstance of plea of guilty serves to extenuate the crime. Consequently, the accused
Romeo Pacot should be, as he is, hereby sentenced to the indeterminate penalty of, 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, with the accessory penalties of the law; to indemnify the
offended party Diane Siozon in the sum of P5,000.00, without subsidiary imprisonment in case of
insolvency; and to pay the costs." (pp. 97-98, Rollo)
Records show that the victim Yolanda Margate is the common-law wife Noel Siozon who is married to
Ophelia Ofinado. In 1970, Ophelia left Noel taking their daughter with her. Subsequently, he met Yolanda
Margate who became his common-law wife and with whom he has two (2) children, namely: Diane and
Dennis. After three (3) years, they left Tacloban City and moved to Cebu City where they established their
new residence at Oliva Street. It was on July 21, 1980 when appellant Romeo Pacot, 23 years old, a native of
Butuan City and a civil engineering student at the Cebu Institute of Technology, met Yolanda. Appellant fell
in love with Yolanda whom he found to be still single but has two (2) children with her common-law
15
husband, Noel a businessman from Tacloban City.
According to appellant, by August 1980, Yolanda agreed to go out with him — to the beach, to the movies
and, at times, to dinner. He found her also showing signs of affection for him and, on August 15, 1980, in a
moviehouse, he proposed and she accepted him. Thereafter, they had frequent dates, specially at times when
Noel was out of town for business which was often.
On October 1, 1980, appellant and Yolanda had their first intercourse at the D’ Inn Hotel and thereafter they
would meet as often as four times a week. About four months after, or in February 1981, Noel came to know
about the love affair of appellant and Yolanda and he confronted Romeo who promised not to see Yolanda
again. However, according to Romeo, Yolanda continued to call him by phone and so in March 1981 their
relationship was again resumed. The matter was brought to the attention of Barrio Captain Jose Navarro upon
complaint of Noel that appellant was always pestering them, courting Yolanda and following her wherever
she went. The barrio captain was able to settle the matter when he suggested that appellant leave Cebu City
so that his relationship with Yolanda would be cut off. Pacot promised to leave Cebu City for Butuan City. It
was sometime in July 1981 when appellant returned to Cebu and, upon meeting Yolanda at the Seiko Service
Center, they went to Queensland Hotel where they made love and, thereafter, at the Siozon residence,
whenever Noel left for Tacloban City.
On October 14, 1981, appellant went to the Siozon residence at about 2:00 in the afternoon, using the back
door as suggested by Yolanda over the telephone. Yolanda and Dennis were asleep while Diane and the maid
Delia were watching the television. Yolanda woke up and asked Diane for the time. As the clock was in the
kitchen, Diane went down and saw that it was 2:14. On her way back, Diane saw appellant in the sala reading
a newspaper. He followed her to the bedroom, closed the windows and turned on the air conditioning unit.
Yolanda then ordered the maid to get some refreshment, Yolanda asked appellant if he was ready to marry
her. Appellant would not commit himself giving the excuse that he was not yet economically stable and that
his parents would disown him if they would know that he is married. According to appellant, Yolanda
became furious and suddenly kicked his genitals causing him to suffer in pain. He blacked out, took the knife
which was on top of the cabinet and stabbed Yolanda several times, then the children until he thought all of
them had died. However, Diane did not die and, upon regaining consciousness, she went down to open the
door for the police to enter.
Three cases were filed against appellant Romeo Pacot y Babad. Upon arraignment on November 9, 1981,
Pacot, assisted by counsel pleaded "not guilty" to each of the informations filed against him. However, when
the trial started on February 8, 1982, Pacot, again assisted by counsel, moved to withdraw his plea of not
guilty and to enter instead a plea of guilty. The trial court admonished him of the consequences of a plea of
guilty but, notwithstanding, he insisted in his motion which the court granted. He was re arraigned and
pleaded guilty to the three charges filed against him.
Considering the gravity of the offenses, the trial court required the prosecution to present evidence and the
defense the opportunity to prove any mitigating circumstance.chanrobles virtual lawlibrary
On March 15, 1982, the lower court rendered its decision finding Romeo Pacot guilty of each of the crimes
charged and sentenced him accordingly.
In this appeal, appellant contends that the lower court erred (1) in not giving the defendant the benefit of the
mitigating circumstances of voluntary surrender, passion, and obfuscation; (2) in holding that the aggravating
circumstances alleged in the informations should be applied against the defendant; and (3) in imposing the
extreme penalty of death against the defendant.
Appellant’s claim that he is entitled to the mitigating circumstance of voluntary surrender is without merit. In
order that the same may be properly appreciated in favor of the accused, it must appear that (a) he had not
been actually arrested; (b) he surrendered himself to a person in authority or his agent; and (c) his surrender
is voluntary, which circumstances are not present in this case (People v. Molo, 88 SCRA 22). For, while
appellant did not try to escape, he did nothing to place himself in the custody of the authorities.
The mitigating circumstance of passion and obfuscation cannot also be invoked in favor of appellant
considering that his relationship with Yolanda, the common-law wife of Noel Siozon, is illegitimate. The
victims did not do anything which were unlawful and sufficient to produce the passion and obfuscation
contemplated by law. Appellant’s claim that Yolanda kicked him in the genital area was not corroborated;
and, even if true, the same could not have resulted in depriving him of reason that has driven him to kill
Yolanda and Dennis, and to almost kill Diane.
Neither did the lower court err in appreciating the qualifying circumstance of treachery alleged in the three
informations, and in considering the sex and age of the helpless victims.
The court properly considered in his favor the mitigating circumstance of plea of guilty. Thus, the maximum
penalty of death was properly imposed in each of the cases where Yolanda and Dennis were the victims.
However, for lack of necessary votes, the death penalties in said cases are both reduced to reclusion
perpetua.
WHEREFORE, in Criminal Case No. CCC-XIV-2539-Cebu, the judgment is AFFIRMED but modified in
the sense that appellant is sentenced to reclusion perpetua, to indemnify the heirs of Yolanda Margate in the
sum of P30,000.00, and to pay the costs.
In Criminal Case No. CCC-XIV-2541-Cebu, judgment is AFFIRMED but modified in the sense that
appellant is also sentenced to reclusion perpetua, to indemnify the heirs of Dennis Siozon in the sum of
P30,000.00, and to pay the costs.chanrobles.com:cralaw:red
In Criminal Case No, CCC-XIV-2542-Cebu, the judgment is AFFIRMED with the modification that
appellant is to indemnify Diane Siozon in the sum of P15,000.00, without subsidiary imprisonment in case of
insolvency.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERTO PANSENSOY, accused-appellant.
DECISION
CARPIO, J.:
The Case
Before this Court is an appeal from the Decision[1] dated September 13, 1999 in Criminal Case No. 94-
11527 of the Regional Trial Court of Antipolo City, Branch 73, convicting appellant Roberto Pansensoy
(appellant for brevity) of the crime of murder and sentencing him to suffer the penalty of reclusion
perpetua. The trial court also ordered appellant to pay the heirs of the victim P50,000.00 as civil indemnity,
P40,000.00 as actual damages and P20,000.00 as moral damages.
The Charge
Asst. Provincial Prosecutor Rolando L. Gonzales filed an Information [2] charging appellant with the
crime of murder, committed as follows:
That on or about the 8th day of May, 1994, in the Municipality of Antipolo, Province of Rizal, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, armed with a handgun, with
intent to kill and by means of treachery and evident premeditation, did, then and there willfully, unlawfully
and feloniously attack, assault and shoot one Hilario Reyes y Inovero, hitting him on his forehead, thereby
inflicting upon him a mortal gunshot wound, which directly caused his death.
CONTRARY TO LAW.
Arraignment and Plea
When arraigned on February 20, 1995, the appellant, assisted by his counsel, entered a plea of not
guilty.[3] Thereafter, trial on the merits followed.
The Trial
The prosecution presented the following witnesses: (1) Analie Pansensoy, eyewitness to the actual
shooting of the victim; (2) Dr. Emmanuel Aranas, the medico-legal officer who conducted the autopsy on the
victim; (3) SPO1 Reynaldo Anclote, the police officer who conducted the investigation of the incident; (4)
Gregoria Reyes, mother of the victim; and (5) Rogelio Fullente, neighbor of the victim. For its part, the defense
presented the appellant as its lone witness.
Version of the Prosecution
Analie Pansensoy (Analie for brevity), twenty-eight years old, is the legitimate wife of appellant. She
testified that she had been living-in with the victim, Hilario Reyes (Hilario for brevity), since February
1994. On May 8, 1994, she and Hilario were in the house they were renting at Lumang Bayan, Antipolo,
Rizal. Hilario was lying down inside the house. She stood up when she heard a knocking on the door. As she
opened the door, she saw appellant holding a gun. She embraced appellant and tried to wrest the gun away
16
from him but she failed. Hilario went out of the house and sat on a bench. Appellant approached Hilario and
asked him if he really loves his wife. Hilario answered in the affirmative. Appellant next asked Hilario if he
was still single. Hilario answered yes. Appellant counted one to three and at the count of three shot
Hilario. Hilario was hit on the forehead and sprawled on the ground. [4]
Dr. Emmanuel Aranas, physician, conducted the autopsy on the victim at the St. James Funeral Parlor
at past midnight on May 9, 1994. He found a single gunshot wound on the forehead which was the cause of
death. He opined that the entry shows the area of smudging which indicates that Hilario was shot at close
range. The distance of the muzzle of the gun from the forehead could be less than three inches. He also opined
that the person who fired the shot and Hilario were facing each other.[5]
SPO1 Reynaldo Anclote, member of the Philippine National Police, conducted the investigation on the
shooting of Hilario. He took the statements of Gregoria Reyes and Analie in the police station a day after the
incident. He did not conduct an ocular inspection at the scene of the crime. [6]
Gregoria Reyes (Gregoria for brevity), mother of Hilario, testified that she came to know about the death
of her son through a neighbor, Roger. She found out that her son was dead upon arrival at the hospital and was
taken to the funeral parlor. She saw the gunshot wound on the forehead of her son. On the same night of May
8, 1994, she went to the police station where she saw Analie give her statement to the police. She also gave her
statement to the police. As a result of the death of her son, she incurred expenses in the amounts of P10,000.00
and P30,000.00 for the funeral and the burial, respectively. At the time of his death, her son was managing two
passenger jeepneys, one of which he was also driving. He was earning P800.00 a day.[7]
Rogelio Fullente (Rogelio for brevity), fifty-six years old, is a co-driver of Hilario in the Antipolo-
Marikina route. He was the neighbor referred to by Gregoria in her testimony as Roger, who reported to her
the shooting incident. He has known Hilario for ten to fifteen years. In the evening of May 8, 1994, he was in
his home in Lumang Bayan which was about ten meters away from where Hilario was staying. According to
him, their houses were separated by a driveway which could accommodate one jeep. He heard several knocks
and opened the door of his house. When he opened the door he found out that somebody was knocking on the
door of Hilario and ordering him to come out. The first time he saw the man knocking on Hilarios door, the
man was not carrying anything. When he heard a gunshot, he opened the door again and saw the man carrying
something before he left. Rogelio further narrated that when the man asked Hilario to come out, Hilario was
standing by the door. The man asked Hilario if he loved his wife and Hilario answered yes. The man then fired
a shot and Hilarios head bent forward before he fell down. He does not know the caliber of the gun but just
heard the gunshot. He went to the parents of Hilario to report the incident. On cross-examination, Rogelio
testified that when appellant knocked on the door, it was Hilario who opened the door. Hilario sat on the bench
by the door. When Hilario answered yes to appellants question of whether he loved his wife, appellant
immediately fired a shot. Rogelio testified that he watched appellant fire the shot and then left to report the
incident to the parents of Hilario.[8]
Version of the Defense
As expected, the defense had a different version as told by the appellant himself.
Appellant, twenty-eight years old and a security guard, invoked self-defense in his testimony. He
testified that Analie is his wife and they have three children. According to him, their relationship as husband
and wife was normal.
On May 8, 1994, at about 6:30 p.m., a certain Amadong Bisaya (Bisaya for brevity) told him that he
saw his wife with their youngest child and Tisoy, referring to Hilario, board a jeep on their way to Lumang
Bayan. He had met Bisaya before when the latter told him some time in April 1994 that he always saw
appellants wife with another man.He asked Bisaya to accompany him to Lumang Bayan where Bisaya pointed
to the room where his wife and Tisoy entered.
The appellant kicked the door of the room and there he found his wife and Tisoy lying beside each
other. They were only clad in their underwear. He dragged his wife out of the room by her hair and while doing
so, he saw Tisoy pull a gun from the table which was covered with clothes. He let go of his wife and jumped
on Tisoy to grab the gun.
While they struggled for possession of the gun he hit the testicles of Tisoy with his knees. Tisoy fell on
his knees but was still holding the gun. Still grappling for possession of the gun, appellant held on to the back
portion of the gun and part of the trigger, while his other hand held Hilarios hand which was holding the butt
of the gun. When Hilario knelt down, appellant was able to twist Hilarios hand and to point the barrel of the
gun towards the latter.
The gun suddenly went off. At that moment, Tisoy was holding the trigger of the gun. Tisoy was shot
on the head and fell down. It was Tisoy who was holding the trigger when the gun fired and hit him on the
head. Tisoy was still holding the gun when he fell to the floor.
He confronted his wife and pulled her hair and slapped her. His wife was just seated in the corner of the
room. He asked her where their child was. But before she could answer, their child went inside the room and
embraced her mother very tightly. He tried to pull their daughter away from Analie but the latter did not let go
of the child. He told Analie that he would kill her too if she did not release the child. He started to count one,
two, which made his wife release their daughter. He left the room with the child and proceeded to their
house. Tisoy was still sprawled on the ground face down when he left. [9]
The Trial Courts Ruling
The trial court accorded full faith and credence to the testimony of Analie and rejected the version of
the appellant that he acted in self-defense. It found the testimony of Analie credible and observed that she
remained unperturbed during the cross-examination. The trial court also noted that appellant, who was then a
security guard, was charged by his employer with the crime of qualified theft for the loss of a .38 caliber
revolver. Appellant allegedly committed the theft on May 8, 1994, the very same day the shooting incident
happened. The gun used in shooting the victim was not found at the scene of the crime but the slug recovered
was that of a .38 caliber revolver. Although appellant was subsequently acquitted of the charge, the trial court
considered this as evidence of a circumstance connected with the crime. The trial court further noted that
appellant went into hiding from the time the shooting incident happened until the case was filed in court on
August 24, 1994.
The trial court pronounced judgment thus:
WHEREFORE, premises considered, the accused is hereby found guilty beyond reasonable doubt with the
crime of murder and is hereby sentenced to the penalty of reclusion perpetua. The accused is hereby
further ordered to pay the heirs of Hilario Reyes y Inovero the amount of P50,000.00 as death indemnity and
P40,000.00 and P20,000.00 as actual or compensatory and moral damages, respectively.
Costs against the accused.
SO ORDERED.[10]
Hence, the instant appeal.
The Issues
Appellant is before this Court raising the following assignment of errors:
I
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME CHARGED.
II
THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED OF THE CRIME OF
MURDER DESPITE FAILURE OF THE PROSECUTION TO PROVE ANY OF THE QUALIFYING
CIRCUMSTANCES.
The Courts Ruling
The appeal is partly meritorious.
First Issue: Self-Defense
Appellant insists that he acted in self-defense. Self-defense as a justifying circumstance may exempt an
accused from criminal liability when the following requisites are met, namely: (1) there has been an unlawful
aggression on the part of the victim; (2) the means employed to prevent or repel such aggression are reasonably
necessary; and (3) the person defending himself has not provoked the victim into committing the act of
aggression.[11] The burden of proving by clear and convincing evidence that the killing was justified is on the
accused.[12] In doing so, he must rely on the strength of his own evidence and not on the weakness of that of
the prosecution.[13]
Appellant asserts that the unlawful aggressor was the victim and his death could be attributed to himself
alone. By his own testimony, appellant tried to prove unlawful aggression on the part of Hilario. According to
him, he kicked the door, and when it opened he saw his wife and Hilario inside the room clad in their
underwear. He pulled the hair of his wife and dragged her outside while she was embracing him. At this point,
Hilario pulled a gun from the table. He let go of his wife, jumped on Hilario and grappled for possession of the
gun. While trying to wrest the gun from Hilario, he hit Hilarios testicles with his knees. Hilario fell on the floor
but was still holding the gun. When Hilario knelt down, appellant was able to hold and twist Hilarios hand,
pointing the gun towards the latter. The gun suddenly went off and Hilario was hit on the head.
On the other hand, Analie testified that when she opened the door to their room, she saw appellant
holding a gun. She embraced appellant and tried to wrest the gun from him but failed. Hilario went out and sat
on a bench. Appellant approached him and asked him questions. Appellant counted and, at the count of three,
shot Hilario in the head.
The conflicting versions of the prosecution and of the defense as to who initiated the aggression was
settled by the trial court which gave full faith and credence to the testimony of Analie over that of appellant. The
17

trial court, which had the opportunity to observe the demeanor of the witnesses on the stand, was convinced of A: Around fifteen minutes.
the truthfulness of Analies testimony and not that of appellants. Q: After lying down for fifteen minutes, what did you do next?
Undeterred, appellants first assignment of error is focused on the sufficiency of the evidence for the A: I stood up because Roberto knocked on the door.
prosecution, questioning in particular the trial courts assessment of the credibility of the prosecutions Q: What happened next after this Roberto knocked on the door?
eyewitness, Analie. According to him, Analies testimony is flawed as she insisted that she and appellant had A: I opened the door and I saw Roberto holding a gun.
been separated for more than three years but this is belied by the fact that their youngest daughter is barely Q: After you opened the door and you saw Roberto holding a gun, what happened next?
a year old. He also points out that appellants version that he dragged his wife outside by pulling her hair was A: I embraced Roberto and tried to wrestle the gun away from him but I did not succeed.
more believable and in accord with human behavior rather than Analies version that appellant took time to Q: When you were not able to succeed in taking the gun away from him, what happened next?
interrogate the victim regarding how much the latter loved his wife and other personal circumstances before A: Hilario went out, sat on the bench and Roberto approached him.
shooting him. Q: And after Hilario went out and sat on the bench and Roberto approached him, what happened next?
We find no reason to reverse or alter the evaluation of the trial court. We reiterate the time tested doctrine A: Roberto asked Hilario; do you really love my wife? And Hilario said, Yes.
that a trial courts assessment of the credibility of a witness is entitled to great weight even conclusive and Q: Who was this wife Roberto was referring to when he asked Hilario?
binding if not tainted with arbitrariness or oversight of some fact or circumstance of weight and A: Thats me.
influence.[14] The alleged flaws in the testimony of Analie do not serve to impair her credibility or diminish the Q: After Hilario answered that he really loved his wife which is you that is being referred to, what
truthfulness of her remarks as to who initiated the aggression and fired the shot. happened next?
The allegedly incredible statements do not pertain to the act of killing, but rather to minor or incidental A: Roberto asked Hilario; are you still single, are you not married?
matters which happened before and after the fact of killing. Analies testimony that she had been separated from Q: What was the response of Hilario if there was any?
appellant for three years which, as pointed out by appellant, was belied by the age of their youngest daughter, A: He answered yes.
does not necessarily impair her credibility. Analies 3-year separation from appellant does not preclude Analies Q: What happened next?
still having a child with appellant. As to Analies version that appellant interrogated Hilario before shooting A: Roberto counted one to three and at the count of 3 he shot Hilario.
him, suffice it to say that it is a matter of common observation that the reaction of a person when confronted Q: Was Hilario hit by the shot that was made by Roberto?
with a shocking or unusual incident varies.[15]As admitted by appellant himself, it was the first time he saw his A: Hilario was hit on the forehead and he sprawled on the ground. [17]
wife and Hilario together, veritably confirming what Bisaya had told him some time in April 1994 that Bisaya Analie remained straightforward and consistent all throughout her cross-examination:
always saw his wife with someone else. It was not at all strange for appellant to have asked Hilario if he really Q: Madam witness, you stated that you are the wife of the accused Roberto Pansensoy, is that correct?
loved his wife. Were we to agree with the appellant and treat each strange or unusual event in the occurrence A: Yes, sir.
of a crime, such as appellants interrogation of the victim, as basis for reasonable doubt, no criminal prosecution Q: Are you legally married to accused Roberto Pansensoy?
would prevail.[16] A: Yes, sir.
In any event, a thorough evaluation of the transcript of stenographic notes indicates that Analie, as Q: And if you remember, when were you married?
observed by the trial court, testified in a candid and straightforward manner as follows: A: 1990.
Q: Why do you know said Hilario Reyes? Q: Where were you married?
A: He is my live-in partner. A: At Negros Occidental.
Q: When did you start to be the live-in partner of Hilario Reyes? Q: You stated that on May 8, 1994, you were at Lumang Bayan, Antipolo, Rizal, am I correct?
A: February 1994. A: Yes, sir.
Q: Up to what time did you become to be the live-in partner of Hilario Reyes? Q: In what particular place at Lumang Bayan is that?
A: Three months. A: Inside the village.
Q: What was the reason why your live-in relationship lasted only three months? Q: What were you doing then inside the village?
A: Because Roberto killed Hilario Reyes. A: We are renting a house there.
Q: When was this Hilario Reyes killed? Q: Who is your companion while renting that house?
A: May 8, 1994. A: Hilario Reyes.
Q: Where was he killed? Q: And who is this Hilario Reyes?
A: At Lumang Bayan. A: The victim.
Q: In what municipality? Q: What is your relation with the victim?
A: Lumang Bayan, Antipolo, Rizal. A: Live-in partner.
Q: How did you know that he was killed? Q: How long have you been living in together, Madam Witness?
A: He was shot by Roberto Pansensoy. A: Three months.
Q: How did you know that he was shot by Roberto Pansensoy? Q: On that date May 8, 1994 you stated a while ago that you were resting together with Hilario Reyes, is
A: Because Roberto went there and he was holding a gun. that correct?
Q: On May 8, 1994 that you said Hilario Reyes was shot by Roberto Pansensoy, where were you? A: Yes, sir.
A: Inside the house, sir. Q: Inside the room of the house being rented by Hilario Reyes?
Q: Whose is that house you are referring to? A: Yes, sir.
A: We are renting that house. Q: What was Hilario Reyes doing then?
Q: With whom? A: He was laying (sic).
A: Hilario Reyes. Q: Lying where?
Q: Before this Hilario Reyes was shot, what was he doing? A: Inside.
A: He was already lying down. Q: Thereafter, what happened next while Hilario Reyes was resting?
Q: Lying down where? A: I heard Roberto knock on the door.
A: Inside the house, sir. Q: After which, what happened next, Madam Witness?
Q: How long was he lying down? A: I opened the door and I saw Roberto.
18
Q: What did you do upon seeing Roberto on the door?
A: He was holding a gun and I embraced him, because I wanted to take the gun away from him.
Q: Is it not because you feel that Roberto Pansensoy might inflict harm on your living in partner, is that
correct?
A: Yes, sir, I wanted to avoid trouble.[18]
From Analies testimony, it is all too apparent that the first requisite of self-defense is absent. The
unlawful aggression did not come from the victim but from appellant himself. The aggression not having come
from the victim, appellants claim of self-defense cannot prosper. The trial court relied on Analies testimony to
convict appellant and we find that her testimony is sufficient to support appellants conviction.
As the legitimate wife of appellant, Analies testimony would have been disregarded had appellant timely
objected to her competency to testify under the marital disqualification rule. Under this rule, neither the
husband nor the wife may testify for or against the other without the consent of the affected spouse, except in
a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the
latters direct descendants or ascendants.[19] However, objections to the competency of a husband and wife to
testify in a criminal prosecution against the other may be waived as in the case of other witnesses
generally.[20] The objection to the competency of the spouse must be made when he or she is first offered as a
witness.[21] In this case, the incompetency was waived by appellants failure to make a timely objection to the
admission of Analies testimony.
We note that Rogelio was presented to corroborate Analies testimony, but he gave a rather confusing
account of what he allegedly saw or heard on the night of the shooting. During his direct examination, he
claimed that he heard a gunshot, but on cross-examination he claimed that he opened the door of his
house and actually sawappellant shoot Hilario. In any event, it is well-settled that the testimony of a lone
eyewitness, if credible and positive, is sufficient to convict an accused.[22] On the other hand, a plea of self-
defense cannot be justifiably appreciated, if it is not only uncorroborated by independent and competent
evidence, but also extremely doubtful by itself[23] as in the instant case.
Moreover, appellants behavior after the incident runs contrary to his proclaimed innocence. Appellants
act of fleeing from the scene of the crime instead of reporting the incident to the police authorities are
circumstances highly indicative of guilt and negate his claim of self-defense.[24]
Lastly, we find it unnecessary to consider as corroborative evidence the charge of qualified theft for the
loss of a .38 caliber revolver filed against appellant by his employer security agency. The trial court discussed
at length that the offense was committed on the same day the shooting incident happened and that the slug
recovered from the scene of the crime was from a .38 caliber revolver. According to the trial court, while the
gun was not recovered from the scene of the crime, it was safe to assume that the accused had a gun when he
went to the place of the victim. While SPO1 Anclote testified regarding the nature of the slug, he admitted that
he never inspected the scene of the crime and that the slug was merely handed to him by SPO2 Catanyag who
was not presented in court to testify. Hence, reliance on this as evidence of a circumstance connected with the
crime rests on shaky ground and is superfluous in light of Analies credible eyewitness account.
Second Issue: Passion and Obfuscation
Appellant argues for the appreciation of the mitigating circumstance of passion and obfuscation in his
favor. According to appellant, when he confirmed with his own two eyes that his wife was cheating on him, he
lost his self-control and that his actuation arose from a natural instinct that impels a husband to protect his
wounded feelings. There is basis for this claim.
In order to be entitled to the mitigating circumstance of passion and obfuscation, the following elements
should concur: (1) there should be an act both unlawful and sufficient to produce such condition of mind; (2)
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.[25]
Appellant was on his way home from his duty as a security guard when he met Bisaya who told him
that he saw his wife and youngest child board a jeepney with the victim, Hilario. Appellant and Bisaya followed
them. Appellant claims that he saw his wife and the victim lying beside each other, clad only in their underwear.
Analie claims that they were just resting inside the house at the time appellant arrived. Under any of these two
circumstances, it is easy to see how appellant acted with obfuscation because of jealousy upon discovering his
legitimate wife in the company of another man and the brazen admission by this man that he loved his wife. The
situation was aggravated by the fact that Analie brought their child along to her trysting place with
Hilario. Extreme emotional pain could result from such a situation and produce such passion and anguish in
the mind of a betrayed husband as to deprive him of self-control. To be blinded by passion and obfuscation is
to lose self-control.[26] In this case, there is a clear showing that there were causes naturally tending to produce
such powerful passion as to deprive the accused of reason and self-control.[27]
Furthermore, the act producing the obfuscation was not far removed from the commission of the crime
by a considerable length of time, during which the appellant might have regained his equanimity. It appears
that only a few minutes elapsed between the time appellant discovered the two in the room and the killing.
Thus, appellant can be given the benefit of this mitigating circumstance.
Third Issue: Qualifying Circumstances
The Information alleges two qualifying circumstances: treachery and evident premeditation. If
appreciated, any one of these will qualify the killing to murder. However, the trial court convicted appellant of
murder without stating the circumstance which qualified the killing to murder.
In view of our earlier pronouncement crediting in favor of appellant the mitigating circumstance of
passion and obfuscation, we have to rule out treachery and evident premeditation as qualifying
circumstances. Treachery cannot co-exist with passion and obfuscation.[28] The reason for this is that in passion,
the offender loses his control while in treachery the means employed are consciously adopted. One who loses
reason and self-control cannot deliberately employ a particular means, method or form of attack in the
execution of the crime.[29]
Similarly, the aggravating circumstance of evident premeditation cannot co-exist with the circumstance
of passion and obfuscation.[30] The essence of premeditation is that the execution of the criminal act must be
preceded by calm thought and reflection upon the resolution to carry out the criminal intent during the space
of time sufficient to arrive at a composed judgment.[31]
In its Brief, the Office of the Solicitor General (OSG for brevity) submits that evident premeditation is
present to qualify the killing to murder. According to the OSG, premeditation is apparent from the fact that
appellant went to the scene of the crime already carrying the gun which he used to shoot the victim. The OSG
argues that while appellant may have been a security guard, he had no legal justification for bringing the gun
to the victims residence. His act of bringing the gun to the crime scene is a clear indication of his preconceived
plan to kill his wifes lover. The elements of evident premeditation as a qualifying circumstance are: (1) the
time when the offender determined to commit the crime; (2) an act manifestly indicating that the culprit has
clung to his determination; and (3) a sufficient lapse of time between the determination and execution, to allow
him to reflect upon the consequences of his act and to allow his conscience to overcome the resolution of his
will.[32]
Verily, a finding that there was a preconceived plan to kill would negate passion and obfuscation.
However, nothing in the records shows how and when appellant hatched his plan to kill, or how much
time had elapsed before appellant carried out his plan. On the contrary, appellant was on his way home from
his duty as a security guard when he chanced upon Bisaya who told him that he saw his wife and child with
Hilario. The mere fact that he brought his gun along or happened to have it in his person does not, by itself,
necessarily indicate a preconceived plan to kill. The carrying of arms, if customary, does not indicate the
existence of the second requisite. In People vs. Diokno,[33] the Court held that the accused being from the
province of Laguna and it being customary on the part of the people of Laguna to carry knives, it cannot be
inferred with certainty that the intention of the accused who carried knives was to look for the deceased in
order to kill him.In like manner, it cannot be inferred with certainty that appellant already had the intention to
kill Hilario when appellant carried his gun on his way home after his duty as a security guard.
Fourth Issue: Damages and Penalty
In view of the foregoing, the crime proven in this case is not murder, but only homicide [34] with the
mitigating circumstance of passion and obfuscation. The penalty for homicide under Article 249 of the Revised
Penal Code is reclusion temporal. With the mitigating circumstance of passion and obfuscation, the penalty
which may be imposed pursuant to the second paragraph of Article 64 of the Revised Penal Code is reclusion
temporal in its minimum period. Appellant is entitled to the benefit of the Indeterminate Sentence Law as well,
which allows the imposition of an indeterminate sentence, with the minimum period within the range of the
penalty next lower to that prescribed by law and the maximum period within the range of the latter after
appreciating any modifying circumstances. Appellant can thus be sentenced to an indeterminate penalty
ranging from eight (8) years of prision mayor as minimum to fourteen (14) years and eight (8) months
of reclusion temporal as maximum.[35]
As for damages, the trial court ordered appellant to pay the heirs of the victim the following
amounts: P50,000.00 as indemnity; P40,000.00 as actual damages; P20,000.00 as moral damages; and to pay
the costs.
Consistent with prevailing jurisprudence, we sustain the award of P50,000.00 to the heirs of Hilario. The
amount is awarded without need of proof other than the commission of the crime[36] and the consequent death
of the victim.
An appeal in a criminal proceeding throws the whole case open for review and it becomes the duty of
this Court to correct any error in the appealed judgment, whether it is made the subject of an assignment of
19

error or not.[37] Therefore, we delete the award of P40,000.00 as actual damages. To seek recovery of actual
damages, it is necessary to prove the actual amount of loss with a reasonable degree of certainty, premised
upon competent proof and on the best evidence obtainable.[38] Since the prosecution did not present receipts to
prove the actual losses suffered, such actual damages cannot be awarded. We raise the award of moral damages
from P20,000.000 to P50,000.00 in line with current jurisprudence[39] for the pain wrought by Hilarios death as
testified to by Gregoria, mother of the victim.[40]
The trial court overlooked the award for loss of earning capacity despite the testimony of Gregoria on
her sons daily income. The absence of documentary evidence to substantiate the claim for the loss will not
preclude recovery of such loss.[41] Gregoria testified that her son had been earning P800.00 daily as manager
and driver of two passenger jeepneys.[42] This amounts to P19,200.00 monthly excluding Sundays. The defense
did not object to Gregorias testimony on her sons earning capacity. The rule is that evidence not objected to is
deemed admitted and may be validly considered by the court in arriving at its judgment. [43] It was also
established that at the time of his death, Hilario was thirty-six (36) years old.[44] Loss of earning capacity is
computed based on the following formula:[45]
Net = life expectancy x Gross Annual - living expenses
Earning Income (GAI) (50% of GAI)
Capacity [2/3(80-age
at death)]
x = 2(80-36) x GAI - [50%of GAI]
3
x = 2(44) x P 230,400 - P 115,200
3
x = 88 x P 115,200
3
x = 29.33 x P 115,200
Net earning capacity = P 3,379,200.00
WHEREFORE, the judgment of Branch 73 of the Regional Trial Court of Antipolo City in Criminal
Case No. 94-11527 is MODIFIED. Appellant ROBERTO PANSENSOY is found guilty beyond reasonable
doubt of the crime of HOMICIDE as defined and penalized under Article 249 of the Revised Penal Code,
instead of murder. Applying the Indeterminate Sentence Law and taking into account the mitigating
circumstance of passion and obfuscation, appellant is hereby sentenced to suffer an indeterminate penalty
ranging from Eight (8) years of prision mayor minimum, as minimum, to Fourteen (14) years and Eight (8)
months of reclusion temporal minimum, as maximum. The award of actual damages of P40,000.00 is
DELETED, but appellant is ordered to pay the heirs of the victim moral damages in the amount of P50,000.00
and loss of earning capacity in the amount of P3,379,200.00.