PEOPLE OF THE PHILIPPINES vs.
FEDERICO On July 16, 1995, Fajardo learned that the knife used by accused-
ABRAZALDO @ "PEDING”
For automatic review is the Decision1 dated November 15, 1995 of
the Regional Trial Court, Branch 44, Dagupan City in Criminal
Case No. 95-01052-D, finding accused-appellant Federico
Abrazaldo guilty beyond reasonable doubt of the crime of murder
and sentencing him to suffer the supreme penalty of death and to
indemnify the heirs of the deceased Delfin Guban the amount of
₱50,000.00 as indemnity and ₱27,000.00 as actual damages, plus
costs.
In the Information dated August 3, 1995 filed with the trial court,
accused-appellant was charged with the crime of murder
committed as follows:
"That on or about July 15, 1995 in the evening at barangay Pogo,
Municipality of Mangaldan, province of Pangasinan, Philippines
and within the jurisdiction of this Honorable Court, the above-
named accused armed with a bolo, with intent to kill, treachery and
evident premeditation, did, then and there wilfully, unlawfully and
feloniously stabbed DELFIN GUBAN Y GUINTO inflicting upon
him a stab wound which caused his death to the damage and
prejudice of his heirs.
"CONTRARY to Art. 248, Revised Penal Code, as amended by
R.A. 7659."2
Upon arraignment, accused-appellant entered a plea of not
guilty.3 Forthwith, trial on the merits ensued. The prosecution
presented as its witnesses Rosendo Fajardo, SPO1 Ramie Petrache,
SP02 Roberto Fernandez, Dr. Alberto Gonzales and Gregorio
Guban. Accused-appellant and his sister, Marites Abrazaldo, took
the witness stand for the defense.
The facts of the case as presented by the prosecution witnesses are
as follows:
On July 15, 1995, at about 10:00 o’clock in the evening, at
Barangay Pogo, Mangaldan, Pangasinan, accused-appellant, then
intoxicated,4 attempted to hack his uncle, Bernabe Quinto, but
instead, hit the post of the latter’s house.5 The incident was reported
to the barangay authorities, prompting Delfin Guban, Rosendo
Fajardo, Sr., Alejandro Loceste (all are members of the barangay
tanod), and Cesar Manaois to rush to the scene. Upon reaching the
place, Fajardo heard accused-appellant shouting at his uncle, "I
will kill you!" Thereafter, he saw accused-appellant coming out of
Quinto’s house with blood oozing from his forehead.6 At that time,
the place was well lighted by a flourescent lamp. Guban tried to
assist accused-appellant. However, for unknown reason, accused-
apellant and Guban shouted at each other and grappled "face to
face." Accused-appellant pulled out his knife, stabbed Guban at the
abdomen7 and ran away. When Fajardo got hold of Guban, the
latter said, "I was stabbed by Feding Abrazaldo."8 Fajardo, together
with the other barangay tanod, rushed Guban to the Gov. Teofilo
Sison Memorial Hospital where he was operated by Dr. Alberto
Gonzales, a Medical Officer III. But after a few hours, Guban died.
Dr. Gonzales issued a Medico-Legal Certificate stating that the
cause of death was "stab wound, epigastrium, massive hemothorax
right."9
Gregorio Guban, the victim’s father, testified that he was the one
who spent for his son’s funeral expenses. For the burial, he spent
₱10,000.00;10 for the 10-day funeral wake, ₱10,000.00;11 for the 9th
day novena, ₱3,000.00;12 and for the hospitalization, ₱4,000.00,13 or
1
a total of ₱27,000.00.
Page
appellant in stabbing Guban was in Salay, Pangasinan. Together
with SPO2 Roberto Fernandez, Fajardo went to the house of
Francisca Velasquez, accused-appellant’s aunt, and recovered the
knife. 14
Invoking self-defense, accused-appellant presented a different
version. On July 15, 1995 at about 10:00 in the evening, he was
making fans inside his house at Barangay Pogo, Mangaldan,
Pangasinan.15 His wife Lydia and children Mary Jane, Melvin and
Christelle were with him. Suddenly, Delfin Guban, who was then
drunk, went to his house and shouted at him, saying, "Get out
Feding I will kill you!"16 When accused-appellant went out, Guban
hit him with an iron pipe. Accused-appellant ran towards his house
and got his two children. Guban, now armed with a knife, followed
him and they grappled for its possession. In the course thereof,
both fell down.17 It was then that the knife held by Guban
accidentally hit him. Accused-appellant did not know which part of
Guban’s body was hit. Thereafter, he got the knife in order to
surrender it to the police.18
Marites Abrazaldo testified that accused-appellant is his
brother.19 On July 15, 1992, at about 6:00 in the evening, accused-
appellant, Guban and Juan Quinto were engaged in a "drinking
spree."20 At about 10:00 o’clock in that evening, accused-appellant
caused trouble at the house of his uncle, Bernabe Quinto. 21 He
attempted to hack his uncle, but instead hit the post of the latter’s
house.22 While running away from his uncle’s place, he bumped an
artesian well, causing a wound on his forehead.23 Afterwards,
accused-appellant killed Guban.24
On November 15, 1995, the trial court rendered a Decision, the
decretal portion of which reads:
"WHEREFORE, premises considered, the Court finds accused
Federico Abrazaldo @ Peding guilty beyond reasonable doubt of
the crime of Murder under Article 248 of the Revised Penal Code,
as amended by Republic 7659, and in view of the presence of the
aggravating circumstances that the crime was committed while the
public authorities were engaged in the discharge of their duties and
that the crime was committed at nighttime, which aggravating
circumstances are not offset by any mitigating circumstance,
accused Federico Abrazaldo is hereby sentenced to suffer the
penalty of Death.
"Accused Federico Abrazaldo is ordered to pay an indemnity of
₱50,000.00 to the heirs of the deceased Delfin Guban. Accused is
also ordered to pay the heirs of the deceased Delfin Guban the total
sum of ₱27,000.00 as actual expenses, plus costs.
"SO ORDERED."
In appreciating treachery and the aggravating circumstances under
paragraphs (5) and (6) of Article 14,25 Revised Penal Code, the trial
court held:
"We now come to the issue of whether or not evident premeditation
was present. The prosecution’s evidence is wanting on this
point. However, there is no question that there was treachery as
the accused embraced Delfin Guban and suddenly stabbed him
with a knife. The victim was not in a position to defend himself
at the time of the attack. The deceased was stabbed without
any warning. He was given no chance to defend himself.
Treachery, therefore, qualifies the killing of the victim and
raises it to the category of murder.
"The prosecution has established thru the testimony of Gregorio
Guban that at the time of the incident on July 15, 1995, the
members of the barangay tanod, namely: Rosendo Fajardo, Sr.,
Delfin Guban and Alfredo Laceste were performing their duties as
members of the barangay tanod. (See p. 6 tsn September 18,
1995). This is an aggravating circumstance under paragraph 5,
Article 14 of the Revised Penal Code. The members of the
barangay tanod who are public authorities were engaged in the
discharge of their duties at the time of the stabbing
incident. Besides, the incident was committed during nighttime,
that was 10:00 in the evening. Accused took advantage of the
darkness of the night for the successful consummation of his plan
to kill Delfin Guban."
Accused-appellant, in his Appellant’s Brief, ascribes to the trial
court the following errors:
"I
THE HONORABLE TRIAL COURT ERRED IN NOT
APPRECIATING THE CLAIM OF SELF-DEFENSE BY THE
ACCUSED TAKING INTO CONSIDERATION THE
CIRCUMSTANCE OF THE CASE.
II
THE HONORABLE TRIAL COURT ERRED IN FINDING THAT
THE RECOVERY OF THE ALLEGED WEAPON USED IN
STABBING VICTIM AT THE HOUSE OF THE AUNT OF
ACCUSED BOLSTERED THE CASE AGAINST HIM DESPITE
LACK OF SUFFICIENT EVIDENCE TO PROVE ITS
VERACITY.
III
THE HONORABLE TRIAL COURT ERRED IN
APPRECIATING THE TESTIMONY EXTRACTED BY THE
PROSECUTION FROM DEFENSE WITNESS MARITESS
ABRAZALDO WHICH HAD NO SUFFICIENT BASIS AT ALL.
IV
THE HONORABLE TRIAL COURT ERRED IN FINDING THAT
TREACHERY ATTENDED THE STABBING OF THE VICTIM
WITHOUT SUFFICIENT BASIS TO PROVE THE SAME.
V Q When you grappled with Delfin Guban, who was
THE HONORABLE TRIAL COURT ERRED IN ASSUMING
THAT ACCUSED-APPELLANT TOOK ADVANTAGE OF
NIGHTTIME IN CONSUMING THE ACT.
VI
THE HONORABLE TRIAL COURT ERRED IN FINDING THAT
THE CHARGE AGAINST ACCUSED-APPELLANT IS
AGGRAVATED BY THE FACT THAT THE VICTIM WAS IN
THE PERFORMANCE OF HIS DUTY."
The Solicitor General, in the Appellee’s Brief, asserts that in
pleading self-defense, accused-appellant admitted he killed the
victim and, therefore, he must rely on the strength of his own
evidence and not on the weakness of that of the prosecution.
Moreover, accused-appellant’s version of the incident is completely
contradicted by the testimony of his sister. Also, the aggravating
circumstance, under par. (5) of Article 14, Revised Penal Code,
was clearly established because during the incident, Guban, as the
Assistant Chief Tanod, was on duty and engaged in the
maintenance of peace and order.
The Solicitor General though agrees with accused-appellant that
there was no treachery. Evidence shows that he and Guban shouted
at each other and struggled "face to face" before the stabbing
incident. Thus, the assault was not sudden. Likewise, the Solicitor
General is convinced that accused-appellant did not purposely and
deliberately seek nighttime to perpetrate the commission of the
crime.
Consistent is the jurisprudence that where self-defense is invoked,
it is incumbent upon the accused to prove by clear and convincing
2
evidence that (1) he is not the unlawful aggressor; (2) there was
lack of sufficient provocation on his part; and (3) he employed
Page
reasonable means to prevent and repel an aggression. On appeal,
the burden becomes even more difficult as the accused must show
that the court below committed reversible error in appreciating the
evidence.26
Accused-appellant miserably failed to discharge the burden. To
show that he was not the unlawful aggressor, he testified that it was
Guban who went to his house, threatened to kill him,27 hit him with
an iron pipe,28 and attacked him with a knife.29 We quote accused-
appellant’s testimony, thus:
"ATTY. CAMPOS:
xxxxxx
Q You said a while ago that on July 15, 1995 at about 10:00 in
the evening you were in your house engaging in fan making,
do you know of any unusual incident that happened during
that time?
A Delfin Guban came to my house and he was under the
influence of liquor and he shouted at me, sir.
Q And what did Delfin Guban shout at you?
A He said, "Get out Feding I will kill you."
Q After this Delfin Guban shouted at you, what happened
next?
A When I went out of the house, I was already there infront of
the house then he hit me, sir.
Q You said Delfin Guban hit you, what instrument did he
use in hitting you?
A He hit me with a pipe , sir.
xxxxxx
Q After Delfin Guban hit you with that pipe, what happened
next?
A I ran towards my house inside, then got my two children
while Delfin Guban followed me inside my house, sir.
Q When Delfin Guban followed you inside your house, what
happened again?
A He was holding a knife and we grappled and during that
time both of us fell down, sir.
holding a knife, what again happened?
A We grappled for the possession of the knife then we fell
down and the knife he was then holding pointed towards
him and hit him. x x x.30 " (Emphasis supplied)
The foregoing testimony bears not only the vice of falsity but also
isolation. It is uncorroborated and even opposed by Marites,
accused-appellant’s own sister and lone witness. Contrary to his
testimony that Guban hit him on his forehead with a pipe, Marites
declared that accused-appellant sustained the wound on his
forehead when he accidentally bumped an artesian well. Instead of
fortifying her brother’s defense, she virtually affirmed the
prosecution’s story by testifying that he created trouble in their
compound, attempted to kill his uncle Bernabe Quinto and killed
Guban. 31
Ingrained in our jurisprudence is the doctrine that the plea of self-
defense cannot be justifiably entertained where it is not only
uncorroborated by any separate competent evidence but in itself is
extremely doubtful.32 In the present case, accused-appellant’s
tendency to invoke a melange of defenses renders his testimony
dubious. While he admitted the commission of the crime in order
to preserve his own life, he maintained that Guban accidentally
stabbed himself. This shows ambivalence. Accident presupposes
lack of intention to stab the victim, while self-defense presumes
voluntariness, induced only by necessity.33 Indeed, if there is truth
to either of his claim, his natural course of action was to assist the
victim, or at the very least, report the incident to the authorities.
Certainly, the justifying circumstance of self-defense 34 or the
exempting circumstance of accident cannot be appreciated
considering accused-appellant’s flight from the crime scene and his
failure to inform the authorities of the incident. Furthermore, that
he did not surrender the knife to the authorities is inconsistent with
a clean conscience and, instead, indicates his culpability of the
crime charged.35
In a last-ditch effort to exculpate himself, accused-appellant assails
Fajardo’s testimony as tainted with inconsistencies and is "contrary
to the normal course." Accused-appellant cannot invoke these
alleged weaknesses in view of the principle that one who pleads
self-defense must rely on the strength of his own evidence and not
on the weakness of that of the prosecution. Even if the
prosecution’s evidence is weak, it is still credible considering
accused-appellant’s admission that he killed the victim. It bears
emphasis that Fajardo’s testimony clearly points to him as the
culprit. Not only did he pull out his knife, stabbed Guban36 and ran
away.37 Fajardo also reiterated what Guban uttered to him, i.e., "I
was stabbed by Feding Abrazaldo."38
As Guban had succumbed to death and his opportunity to divulge
the truth on his demise had been lost, we cannot but cast a
quizzical glance on accused-appellant’s uncorroborated testimony.
More so, when such testimony was contradicted by his own
witness who happened to be his sister. Standing alone against the
testimonies of the prosecution witnesses, accused-appellant’s own
account of the killing must necessarily fail. We hold that his guilt
has been established to a degree of moral certainty. The trial court
did not err in relying on the testimony of Fajardo, an eyewitness.
Time and again, we have said that we will not interfere with the
judgment of the trial court in determining the credibility of
witnesses unless there appears on record some facts or
circumstances of weight and influence which have been
overlooked or the significance of which has been misinterpreted.
This is so because the trial court has the advantage of observing the
witnesses through the different indicators of truthfulness or
falsehood.39
However, we find that the trial court erred in concluding that
treachery attended the commission of the crime. There is treachery
when the offender commits any of the crimes against persons
employing means, methods or forms in the execution thereof,
which tend directly and specially to insure its execution, without
risk to himself arising from defense which the offended party
might make. Treachery cannot be presumed, it must be proved by
clear and convincing evidence or as conclusively as the killing
itself. Fajardo testified that accused-appellant and Guban were
"grappling with each other" and that prior to the stabbing, they
were shouting at each other. In this scenario, it cannot be said that
Guban was unprepared to put up a defense, such as hitting accused-
appellant, or that the latter’s assault was sudden. We quote in
verbatim the testimony of Fajardo, thus:
"ATTY. CAMPOS:
Q They were not then fighting?
A They were grappling with each other and then he
stabbed Delfin Guban.
xxxxxx
Q In fact, they were shouting each other?
A Yes, sir.
Q What were they shouting against another?
A I could no longer understand because it was already
night.
Q But they were shouting loudly, am I correct?
A Yes and there were many people."40 (Emphasis supplied)
3
Page
The trial court likewise erred in appreciating the aggravating
circumstance of nocturnity or nighttime. For nocturnity to be
properly appreciated, it must be shown that it facilitated the
commission of the crime and that it was purposely sought for by
the offender. By and itself, nighttime is not an aggravating
circumstance.41 In the instant case, no sufficient evidence was
offered to prove that accused-appellant deliberately sought the
cover of darkness to accomplish his criminal design. In fact,
Fajardo testified that there was a fluorescent lamp sufficiently
illuminating the scene of the crime.42
Neither can we sustain the trial court’s finding that the aggravating
circumstance under paragraph (5) of Article 14, Revised Penal
Code, i.e., that the crime was committed in a place where public
authorities were engaged in the discharge of their duties, is present.
It must be pointed out that this aggravating circumstance is based
on the greater perversity of the offender, as shown by the place of
the commission of the crime, which must be respected. 43In this
case, the crime was committed at the compound of the accused-
appellant where no public function was being held. The arrival of
the barangay authorities was precisely due to the trouble that had
commenced prior to the stabbing incident. Clearly, the said
aggravating circumstance cannot be considered. Moreover, under
the present Rules,44 aggravating circumstances must be alleged,
otherwise, they cannot be appreciated. Being favorable to the
accused, this new procedure may be given retroactive
effect.45 Except treachery, the other aggravating circumstances
mentioned have not been alleged in the Information.
In the absence of any circumstance that would qualify the crime at
bar to murder, accused-appellant can only be held liable for
homicide defined and penalized under Article 249 of the Revised
Penal Code. The prescribed penalty is reclusion temporal.
Considering that there was neither mitigating nor aggravating
circumstance that attended the commission of the crime, the
penalty has to be imposed in its medium period, ranging from 14
years, 8 months and 1 day to 17 years and 4 months. Applying the
provisions of the Indeterminate Sentence Law, he should be
sentenced to an indeterminate penalty, the minimum of which is
within the range of prision mayor, or 6 years and 1 day to 12 years.
The maximum thereof is within the range of reclusion temporal in
its medium period, which is 14 years, 8 months and 1 day to 17
years and 4 months. 46
On the trial court’s award of actual damages in the amount of
₱27,000.00, we find the same to be unsubstantiated. To be entitled
to such 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 to the injured party. 47 In
the case at bar, the prosecution failed to present any receipt to
prove the claim for expenses incurred.48 Gregorio Guban, the father
of the victim, who shouldered the expenses for the wake and burial
failed to submit receipts to show the amount of such
expenses.49 However, as the heirs of Guban did actually incur
funeral expenses, we are justified in awarding ₱25,000.00, not for
purposes of indemnification, but by way of temperate damages. 50
Thus, we now hold that where the amount of the actual damages
cannot be determined because of the absence of receipts to prove
the same, but it is shown that the heirs are entitled thereto,
temperate damages may be awarded. Such temperate damages,
taking into account the current jurisprudence fixing the indemnity
for death at ₱ 50,000.00, should be one-half thereof, or ₱25,000.00.
This makes temperate damages equal to the award of exemplary
damages, which is likewise fixed at ₱25,000.00 in cases where its
award is justified.
WHEREFORE, the assailed judgment in Criminal Case No. 95-
01052-D is AFFIRMED with MODIFICATION. Accused-
appellant Federico Abrazaldo is declared guilty beyond reasonable
doubt of homicide defined and penalized under Article 249 of the
Revised Penal Code and is sentenced to suffer an indeterminate
penalty of six (6) years and 1 day of prision mayor, as minimum, to
fourteen (14) years, eight (8) months and one (1) day of reclusion
temporal in its medium period, as maximum. He is ordered to pay
the heirs of the late Delfin Guban ₱50,000.00 as indemnity and
₱25,000.00 as temperate damages.
PEOPLE OF THE PHILIPPINES vs. PAUL DURAN, JR. y
MIRABUENO
Before this Court is an appeal1 filed under Section 13, Rule 124 of
the Rules of Court from the Decision2 dated June 2, 2014 (assailed
Decision) of the Court of Appeals (CA), First Division in CA-G.R.
CR-HC No. 05496. The assailed Decision affirmed the
Decision3 dated February 22, 2012 of the Regional Trial Court of
Cavite City, Branch 88 (RTC), in Crim. Case No. 160-09, finding
herein accused-appellant Paul M. Duran, Jr. (Duran) guilty of the
crime of Murder under Article 248 of the Revised Penal Code
(RPC).
The Information charging Duran with Murder states as follows:
That on or about the 9th day of January, 2009, in the Municipality
of Rosario, Cavite, Philippines, a place within the jurisdiction of
this Honorable Court, the above-named accused, with intent to
kill, using an unlicensed firearm, employing treachery and
nocturnity, did, then and there, wilfully, unlawfully and feloniously
shoot GILBERT GRIMALDO Y NERA on the back of his head and
thereafter as the victim lay helpless and wounded on the ground
with abuse of superior strength shot him another three times,
inflicting upon the latter multiple gunshot wounds which cause
(sic) his instantaneous death, to the damage and prejudice of the
latter's heirs.
CONTRARY TO LAW.4
Upon his arraignment, Duran entered a plea of "not guilty." 5
The Facts
Version of the Prosecution
The prosecution presented three witnesses, namely: Beverly C.
Quilana (Quilana), eyewitness; Berly L. Grimaldo (Mrs.
Grimaldo), the widow of the victim, Gilbert N. Grimaldo
(Grimaldo), and Dr. Jocelyn Dignos (Dr. Dignos), the municipal
health officer who performed the autopsy on the victim.
Quilana's testimony, as summarized by the RTC, is as follows:
Beverly C. Quilana testified that on January 9, 2009 at around 1:48
in the morning, she was awakened by someone calling for her,
uttering "Ninang". At that time she was inside her house located in
Ligtong 3, Rosario, Cavite. She recognized the voice of the person
as her godson named Gilbert Grimaldo. She then asked why.
Grimaldo replied from outside saying "Ninang tulungan mo ako
yung taong ito ay kinukursunada ako," "kinukursunada ako ng
taong ito, me dala siyang baril". Then she opened the door for her
godson. She then saw the accused Paul Duran shot Grimaldo with a
.38 caliber revolver from behind at a distance of 2 1/2 feet.
Grimaldo was hit at the nape, and then fell to the ground lying with
his face down. Duran then left the place passing between their
4
houses. Moments later accused returned and shot Grimaldo three
Page
more times to make sure that the latter was dead. Witness then
started shouting and asking for help. At this point in time, witness
saw the accused Duran ran away. They then called the police.
According to this witness, Grimaldo was hit on the nape, back and
head.
Witness further clarified that Grimaldo did not know that Duran
was behind him because he was surprised when he was shot.
Witness identified the accused in open court. She is familiar with
the accused for they were neighbors for six (6) years. She clarified,
that she was able to see the accused because the place was
illuminated by a fluorescent bulb placed outside the house. 6
Mrs. Grimaldo's testimony was stipulated upon and dispensed with
as her testimony covered only her claim for damages. 7 Dr. Dignos'
testimony regarding the autopsy, the findings as to the cause of
death and nature, location, and gravity of the injuries sustained by
the victim, and the preparation and issuance of the death certificate,
were also stipulated upon and admitted by the defense. 8
Version of the Defense
Duran invoked self-defense. His testimony, as summarized by the
RTC, is as follows:
Witness testified that he used to peddle fish in Rosario, Cavite. On
January 9, 2009 at around 2:15 to 2:45 a.m. while on his way to
buy fish in Parañaque, he was blocked by two persons whose
identity he did not know. One of this (sic) men who turned out to
be the victim Gilbert Grimaldo poked a gun at him, and said that
they only needed his money. That when Grimaldo attempted to get
the money from his belt bag, he was able to hold the victim's right
hand which was then holding the gun. Grimaldo then used his left
hand to box his nape. Then they wrestled for the possession of the
gun for more or less thirty seconds. Then he (Duran) was able to
take the gun away from Grimaldo. When Grimaldo moved
backward, he pulled the trigger of the gun and hit Grimaldo. At that
time he was worried that the other guy might retaliate and that's the
reason why he was able to pull the trigger of the .38 caliber
revolver gun.9
Ruling of the RTC
The RTC found Duran guilty of the crime of Murder, qualified by
treachery, and sentenced him to reclusion perpetua.10 In arriving at
its decision, the trial court ruled:
Like alibi, self-defense is inherently a weak defense and can easily
be fabricated. When the accused interposes self-defense, he thereby
admits having caused the injuries of the victim. The burden of
proof then shifts on him to prove, with clear and convincing
evidence, the confluence of the essential requisites for such a
defense, namely: a.) unlawful aggression on the part of the victim;
b.) reasonable necessity of the means employed and to prevent or
repel it; and c.) lack of sufficient provocation on the part of the
person defending himself. The accused must rely on the strength of
his own evidence and not on the prosecution's, for even if the latter
is weak, it cannot be disbelieved after the accused has admitted the
killing xxx.
xxxx
This Court is convinced that there was no unlawful aggression.
Assuming that Grimaldo and his unidentified companion really
tried to hold-up Duran, the latter's testimony shows that the
aggression had already ceased when he (Duran) was able to
successfully take the gun from the possession of Grimaldo.
Having now the possession of the gun, there was obviously no
reason for him to shoot the victim successively because the
unlawful aggression from the victim has stopped. Duran by his
own admission stated that he shot Grimaldo four times. Hence, no
unlawful aggression by the victim was shown. Be it remembered
that the presence of said primary requisite is a condition sine qua
non of the justifying circumstance of self-defense. Absent such,
there could be no self[-] defense to speak of. The other two
requisites need not be discussed.
On the part of the prosecution, it clearly proved the presence of
intent to kill on the part of the accused. The fact that the shots fired
by the accused were directed to the vital body parts of the victim,
namely on the head and the chest, shows intent to kill.
In addition thereto, the testimony of eye witness Quilana is very
credible. Witness saw vividly how the shooting incident happened,
who the victim was - Gilbert Grimaldo and the perpetrator of the
crime - herein accused Paul Duran.
xxxx
The qualifying circumstance of treachery is present in this case
because accused shot the victim in a manner that the latter would
not be able to defend himself, and the location and severity of the
wounds inflicted on the victim belies the claim of self-defense. 11
Duran was further ordered to pay the heirs of the victim One
Hundred Thousand (₱100,000.00) as moral damages and Fifty
Thousand Pesos (₱50,000.00) in exemplary damages.12
Duran appealed to the CA via Notice of Appeal13 dated March 12,
2012. Duran then filed his Brief14 dated September 25, 2012, while
the plaintiff-appellee, through the Office of the Solicitor General
(OSG), filed its Brief15dated February 4, 2013. Thereafter, the
appeal was submitted for decision.16
Ruling of the CA
The CA affirmed Duran's conviction in toto.17 On June 26, 2014,
Duran brought the instant case before this Court via Notice of
Appeal18 of even date.
In lieu of supplemental briefs, Duran and plaintiff-appellee filed
separate manifestations respectively dated April 13, 2015 19 and
April 15, 2015,20 foregoing their right to file the same.
Issue
Whether or not Duran's guilt for the crime of Murder was proven
beyond reasonable doubt.
The Court's Ruling
The appeal is partly meritorious.
There was no unlawful aggression
An accused who pleads self-defense admits the commission of the
act charged as a crime. The burden of proving self-defense rests on
the accused. He must prove by clear and convincing evidence the
concurrence of the following elements: (1) unlawful aggression;
(2) reasonable necessity of the means employed to prevent or repel
the unlawful aggression; and (3) lack of sufficient provocation on
5
the part of the person defending himself or at least any provocation
Page
executed by the accused claiming self-defense was not the
proximate and immediate cause of the victim's aggression. 21
Unlawful aggression is an indispensable element of self-defense.
Without unlawful aggression, self-defense cannot and will not be
appreciated, even if the other elements are present. 22 As held
in People v. Dolorido23 :
Unlawful aggression is an actual physical assault, or at least a
threat to inflict real imminent injury, upon a person.1âwphi1 In
case of threat, it must be offensive and strong, positively showing
the wrongful intent to cause injury. It "presupposes actual, sudden,
unexpected or imminent danger - not merely threatening and
intimidating action." It is present "only when the one attacked faces
real and immediate threat to one's life." x x x24
In People v. Nugas,25 the Court expounded on the kinds of unlawful
aggression:
Unlawful aggression is of two kinds: (a) actual or material
unlawful aggression; and (b) imminent unlawful aggression. Actual
or material unlawful aggression means an attack with physical
force or with a weapon, an offensive act that positively determines
the intent of the aggressor to cause the injury. Imminent unlawful
aggression means an attack that is impending or at the point of
happening; it must not consist in a mere threatening attitude, nor
must it be merely imaginary, but must be offensive and positively
strong (like aiming a revolver at another with intent to shoot or
opening a knife and making a motion as if to attack). Imminent
unlawful aggression must not be a mere threatening attitude of the
victim, such as pressing his right hand to his hip where a revolver
was holstered, accompanied by an angry countenance, or like
aiming to throw a pot.26
The Court agrees with the RTC and CA that Duran was unable to
prove the presence of unlawful aggression on the part of the victim.
Even if Duran's account of an attempted robbery against him is to
be believed, his testimony also shows that Grimaldo, albeit the
initial aggressor, ceased to be the aggressor as Duran had
successfully wrested the weapon from him. Thereafter, Duran shot
the gun at Grimaldo four times; three of which hit Grimaldo on
vital parts of his body.27 At this moment, actions of the accused
were already done in retaliation and not self-defense. In retaliation,
the aggression initiated by the victim had already ceased when the
accused attacked him; in self-defense, the aggression from the
victim is continuing.28
Duran's own testimony is illustrative of the absence of unlawful
aggression:
[Atty. Marjorie Ann C. Toledo (on direct examination)]
Q Before the killing incident, do you recall any unusual event that
transpired?
A Yes, Ma'am, there was.
Q And, what was that?
A When my way was blocked by two persons, Ma'am.
Q Do you know these two persons?
A No, Ma'am.
Q What did they do when they blocked you?
A One of them poked the gun at me, Ma'am.
Q Who poked the gun at you?
A That Grimaldo, I think, Grimaldo, Ma'am.
Q And that was the victim in this case?
A Yes, Ma'am.
Q When he poked the gun at you, what happened next?
A He said that he only needed my money, Ma'am.
Q And then, what was your reply when he uttered those words?
A I was not able to immediately reply, Ma'am.
Q What happened next?
A When he was about or attempting to get the money from my belt
bag, that was the time when I was able to hold to the gun, Ma'am.
Q Meaning to say that, he was the one who was getting your belt
bag, you did not voluntarily give it to him?
A Yes, Ma'am.
Q And then you were able to grab the gun?
A Yes, Ma'am.
xxxx
[Prosecutor Ferdinand H. Palafox (cross-examination)]
Q So, Mr. Witness, it is now your testimony indeed on January 9,
2009, you met the victim in this case Gilbert Grimaldo y Nera?
A If he is the victim, then he is the one that I was able to meet that
night, Sir.
Q It is your version, however, that it was him who actually tried to
hold you up and was armed with a firearm?
A Yes, Sir, that is the truth.
Q When he tried to grab your belt bag, which according to you
contained money, you fought back and tried to take away his gun?
A Yes, Sir.
Q And you were able to successfully take away this firearm from
your hold upper?
A Yes, Sir.
Q Can you describe the type of weapon which you got from your
attacker?
A 38 revolver, Sir.
Q 38 revolver?
A Yes, Sir.
Q So, after you got the 38 revolver, you shot this person?
A I was able to shoot him, Sir.
Q Where was he initially hit?
A I am not sure but it was frontal, Sir.
Q After you shot this person, what happened then?
A After shooting him twice, he turned around and then I shot him
again, Sir.
xxxx
COURT:
xxxx
Q What you are trying to say to the Court is that, this Grimaldo
tried to rob you?
A Yes, your Honor.
Q But you were able to grab the gun away from him?
A Yes, your Honor.
Q After you grabbed the gun from Grimaldo, he was no longer
armed?
A After I was able to grab the gun away from him and then he
moved a little backward and he was in the act of attacking me
again, that was the time I was able to shoot him successively, your
Honor.29(Emphasis supplied)
xxxx
[Prosecutor Ferdinand H. Palafox (continued)]
Q You mentioned that the reason you panicked and started
squeezing your trigger was that you were afraid that the companion
of Grimaldo would also attack you, what happened to him?
A He disappeared, Sir.30 (Emphasis supplied)
Duran's claim of self-defense is belied by his own testimony. As
admitted by Duran himself, the unlawful aggression from
Grimaldo had ceased when he had been disarmed and had been
shot. Moreover, the alleged companion of Grimaldo had already
run away, posing no threat to Duran. In the similar case of People
v. Escarlos,31 the Court held:
Even assuming arguendo that there was an altercation before the
stabbing incident and that some danger did in fact exist, the
imminence of that danger had already ceased the moment appellant
disarmed the victim by wresting the knife from the latter. After the
former had successfully seized it, there was no longer any unlawful
aggression to speak of that would have necessitated the need to kill
6
the latter. Hence, appellant became the unlawful aggressor when he
stabbed the victim.
Page
When an unlawful aggression that has begun no longer exists,
the one who resorts to self-defense has no right to kill or even
to wound the former aggressor. x x x32 (Emphasis supplied)
Notably, after Grimaldo was disarmed, he had attempted to escape
from Duran and sought help from his godmother, Quilana, as the
altercation took place on the street in front of her house.
Quilana, the sole eyewitness to the shooting, testified:
[Prosecutor Ferdinand H. Palafox (direct examination)]
Q Madame witness, if you can recall where were you on January 9,
2009 at around 1:48 in the morning?
A At home, Sir.
Q And where is your house located?
A In Ligtong 3, Rosario, Cavite, Sir.
xxxx
Q What time did you wake up, Madame witness?
A I was awakened by the call of somebody at the house, Sir.
Q You heard someone calling you?
A Yes, Sir.
Q What exactly were the words you heard?
A I was called "Ninang", Sir
Q You are named Beverly C. Quilana, Madame witness, and you
heard the word "Ninang", why are you now claiming that when
you heard the word "Ninang" that person shouting was calling
you?
A I recognized the voice, Sir.
Q And when you heard the voice, to whom does it belong?
A Gilbert Grimaldo, Sir.
Q Who is Gilbert Grimaldo?
A My godson, Sir.
Q That is why he was referring to you as "Ninang"?
A Yes, Sir.
Q So when you heard the word "Ninang" and you were assuming
that the person shouting the word "Ninang" was Gilbert Grimaldo,
what did you do?
A I asked him why, Sir.
Q You were inside your house then when you heard Gilbert
Grimaldo shouting the word "Ninang", calling you "Ninang",
where was Gilbert at the time he was shouting?
A By my door, Sir.
Q And your door was closed or open at that time?
A Closed, Sir.
Q While shouting the word "Ninang", what else was Gilbert
shouting?
A "Meron po sa aking kumukursunada sa labas'', Sir.
Q And according to you, you asked him why, or what is it he
wants, when you asked Gilbert and Gilbert answered back, you
were still inside your home?
A Yes, Sir.
COURT:
Q Gilbert was still outside the door of your house?
A Yes, your Honor.
Q And what was the reply of Gilbert when you asked him why?
A "Meron po sa kanyang kumukurs[ u ]nada sa labas, Barangay
Tanod po namen na nagtitinda ng isda", Sir.
Q What were the exact words of Gilbert?
A His words were, "Ninang tulungan mo ako yung taong ito ay
kinukursunada ako", your Honor.
xxxx
Q What words did he say?
A What he said was, "Kinursunada ako ng taong ito, me dala
siyang baril", your Honor.
xxxx
Q Then what did you do?
A I opened the door for him, your Honor.
COURT:
Continue.
[Prosecutor Ferdinand H. Palafox (continuation):]
Q And when you opened the door, did you ask any other question
to Gilbert?
A No more, your Honor.
Q What happened then?
A And then I saw this Paul Duran shoot this Gilbert Grimaldo, Sir.
Q When you opened the door of your house, Madame witness,
were (sic) was Gilbert Grimaldo then?
A Still by my door, Sir.
Q And according to you, you also saw the accused Paul Duran?
A Yes, your Honor.
Q When you saw Paul Duran where was he in relation to Gilbert
Grimaldo?
A In front, your Honor.
COURT:
Q In front of Gilbert Grimaldo?
A Behind, your Honor.
Q How far behind?
A About this, your Honor.
Q Only about 2 1h feet away?
A Yes, your Honor.
COURT:
Alright, continue.
[Prosecutor Ferdinand H. Palafox (continuation):]
Q And when you opened the door and you saw Gilbert and also
Duran just feet away, what happened then, Madame witness?
A He already shot him, Sir.
Q Who shot who?
A Paul Duran shot Gilbert Grimaldo, Sir.33
As can be gleaned from the above testimonies, at the time that
Duran shot Grimaldo, there was no unlawful aggression on the part
of the latter. Time and again, this Court has held that when an
unlawful aggression that has begun has ceased to exist, the one
who resorts to self-defense has no right to kill or even to wound the
former aggressor.34 Aggression, if not continuous, does not
constitute aggression warranting defense of one's self. 35 The
condition sine qua non of unlawful aggression being absent, self-
defense cannot be appreciated in favor of the accused.
The prosecution failed to prove treachery
The Court modifies the findings of the RTC as affirmed by the CA,
with regard to the qualifying circumstance of treachery. Under
Article 14, paragraph 16 of the RPC, there is treachery when the
offender commits any of the crimes against persons, employing
means and methods or forms in the execution thereof which tend to
directly and specially ensure its execution, without risk to himself
arising from the defense which the offended party might make. To
qualify an offense, the following conditions must exist: (1) the
assailant employed means, methods or forms in the execution of
the criminal act which give the person attacked no opportunity to
defend himself or to retaliate; and (2) said means, methods or
forms of execution were deliberately or consciously adopted by the
assailant.36 The essence of treachery is the sudden and unexpected
attack by an aggressor on the unsuspecting victim, depriving the
latter of any chance to defend himself and thereby ensuring its
commission without risk of himself.37
It was error for the RTC to rule that treachery was present as said
finding is not supported by the evidence. Moreover, the RTC did
not fully discuss its appreciation of the circumstance of treachery.
The trial court merely held:
x x x [T]reachery is present in this case because accused shot
the victim in a manner that the latter would not be able to
defend himself, and the location and severity of the wounds
inflicted on the victim belies the claim of self-defense. 38 (Emphasis
supplied)
7
Treachery must be unequivocally proven as the crime itself. As
Page
held in the case of People v. Obzunar39 :
x x x It is an almost immutable rule of evidence that treachery
must be proven as clearly as the crime itself, and "absent any
particulars as to the manner in which the aggression
commenced or how the act which resulted in the death of the
victim unfolded, as in this case, treachery cannot be
appreciated." The prosecution's sole eyewitness Lydia Zilmar saw
what transpired only from the time the victim was already being
chased by the accused-appellants. Hence, not having seen how the
assailants commenced the execution of the felony, she gave no
testimony as to, and there is no sufficient evidence available to
prove conclusively, the use of treachery in the commission thereof.
x x x40 (Emphasis supplied)
The prosecution did not prove that Duran intentionally sought the
victim for the purpose of killing him. The confrontation between
Duran and Grimaldo appears to have been a chance encounter. It
was also not proven that Duran deliberately and consciously
employed means, methods, or forms in the execution of the
criminal act to ensure that Grimaldo could not defend himself.
In People v. Caratao,41 the Court held:
Repeatedly upheld has been the rule that chance encounters,
impulse killing or crimes committed at the spur of the moment, x x
x are generally not attended by treachery, for lack of opportunity of
the accused deliberately to employ a treacherous mode of attack. x
x x42
Notably, eyewitness Quilana only witnessed the moment of the
actual shooting but did not witness the inception of the fatal
altercation. The prosecution failed to establish that Duran had
deliberately adopted a treacherous mode of attack for the purpose
of depriving the victim of a chance to fight or retreat. In this case,
Grimaldo was aware of the impending attack and was even able to
seek help from eyewitness Quilana.
As the Court held in People v. Latag43 :
Treachery cannot be presumed where the lone witness has not
actually seen the commencement of the attack, as we held
in People v. Narit:
"x x x [Treachery] cannot be presumed; it must be proved by clear
and convincing evidence or as conclusively as the killing itself.
For, as held in U.S. vs. Perdon where no particulars are known as
to the manner in which aggression was made or how the act which
resulted in the death of the victim began and developed, it can in
no way be established from mere suppositions, drawn from
circumstances prior to the very moment of the aggression, that an
accused perpetrated the killing with treachery. Accordingly,
treachery cannot be considered where the lone witness did not
see the commencement of the assault."44 (Emphasis supplied)
In the case of People v. Rapanut,45 the Court held:
xxx [W]here the lone eyewitness did not see how the attack was
carried out and he can not testify on how it began, the trial
court cannot merely surmise from the circumstances of the
case that treachery attended the commission of the
crime.46 (Emphasis supplied)
In this case, there was no other circumstance attendant to the
shooting that shows that Duran carefully and deliberately planned
the killing in a manner that would ensure his safety and success. It
was not proven that he had deliberately chosen the place, time, and
method of killing, or that the meeting between him and Grimaldo
was planned. In fact, the location was disadvantageous to him, as it
was right in front of the house of Quilana, Grimaldo's godmother.
The prosecution had attempted to prove treachery with the law, and the court may even consider issues which were not raised
testimony of Quilana who stated that Duran had shot Grimaldo by the parties as errors.51
from behind. Thereafter, he left the crime scene yet returned to
shoot Duran three more times. However, upon questions from the With the removal of the qualifying circumstance of treachery, the
Court, the statement was clarified: crime is Homicide and not Murder. The penalty for Homicide
under Article 249 of the RPC is reclusion temporal. In the absence
COURT [(clarificatory questions for eyewitness Quilana)]: of any modifying circumstance, the penalty shall be imposed in its
medium period. Applying the Indeterminate Sentence Law, the
Q What do you mean returned, you mean to say that after shooting penalty next lower in degree is prision mayor with a range of six
Gilbert Grimaldo this Paul Duran left away and then returned later (6) years and one (1) day to twelve (12) years.52
on?
A Yes, your Honor, he made sure that this Gilbert was already Thus, the appellant shall suffer the indeterminate penalty of eight
dead. (8) years and one (1) day of prision mayor, as minimum, to
Q Where did Paul Duran go after shooting Gilbert Grimaldo at the fourteen (14) years, eight (8) months, and one (1) day of reclusion
nape? temporal, as maximum.53
A In between our houses, your Honor.
xxxx Finally, in view of the Court's ruling in People v. Jugueta,54 the
Q Between your house and whose house? damages awarded in the questioned Decision are hereby modified
A And my nephew's house, your Honor. to civil indemnity, moral damages, and temperate damages of
Q And how far is that spot from the place where he shot Gilbert ₱50,000.00 each.
Grimaldo?
A One step away only, your Honor.
Q So Paul Duran made one step back and then moved forward WHEREFORE, in view of the foregoing, the
again to shoot Gilbert Grimaldo? Court DECLARES accused-appellant Paul M. Duran,
A Yes, your Honor.47 (Emphasis supplied) Jr. GUILTY of HOMICIDE, for which he is sentenced to suffer
Quilana's testimony that Duran left and "returned" after shooting the indeterminate penalty of eight (8) years and one (1) day
Grimaldo is contradicted by her own testimony that Duran only of prision mayor, as minimum, to fourteen (14) years, eight (8)
made one step. Duran could not have left the scene of the crime by months, and one (1) day of reclusion temporal, as maximum. He is
only taking one step backward. further ordered to pay the heirs of Gilbert N. Grimaldo the amount
In this regard, Duran's testimony as to the manner in which he shot of Fifty Thousand Pesos (₱50,000.00) as civil indemnity, Fifty
Grimaldo is more credible as it is corroborated by the Post Mortem Thousand Pesos (₱50,000.00) as moral damages, and Fifty
Report. Duran testified: Thousand Pesos (₱50,000.00) as temperate damages. All monetary
Q So, after you got the 38 revolver, you shot this person? awards shall earn interest at the legal rate of six percent (6%) per
A I was able to shoot him, Sir. annum from the date of finality of this Decision until fully paid.
Q Where was he initially hit?
A I am not sure but it was frontal, Sir.
Q After you shot this person, what happened then?
A After shooting him twice, he turned around and then I shot him
again, Sir.
COURT:
Q How many times?
A Once only, your Honor. SHERWIN DELA CRUZ vs. PEOPLE OF THE PHILIPPINES
Q So, all in all you shot Grimaldo 3 times? and CARLOS ALBERTO L. GONZALES
A 4 times, your Honor.
Q When did you fire the fourth shot?
A 3 times frontally, your Honor. This is a petition for review on certiorari under Rule 45 of the
Q And one at the back? Rules of Court, seeking to annul and set aside the May 7, 2009
A Yes, your Honor. Decision1 of the Court of Appeals, in CA-G.R. CV No. 89257,
Q And after firing him 4 times, what happened to Grimaldo? finding petitioner Sherwin Dela Cruz guilty beyond reasonable
A I saw him fall down, your Honor.48 (Emphasis and underscoring doubt of the crime of Homicide, and its August 19, 2009
supplied) Resolution2 denying his motion for reconsideration.

Meanwhile, the Post-Mortem Report49 prepared by Dr. Dignos Petitioner was charged with the crime of Homicide in an
states that Duran was hit by three bullets. One bullet hit his face Information3 dated March 2, 2005, which alleged:
near his lower lip and exited at the back of his head; another bullet
hit his chest and exited his back; and another bullet hit his back,
That on or about the 1st day of January 2005, in the City of Makati,
near his right shoulder, which exited near his right neck. Thus,
Philippines and within the jurisdiction of this Honorable Court, the
Duran's testimony that he was able to wound Grimaldo twice in the
abovenamed accused, with intent to kill and with the use of an
front and once in the back is consistent with the Post-Mortem
unlicensed firearm, did then and there wilfully, unlawfully and
Report.
feloniously attack, assault and shoot one JEFFREY WERNHER
GONZALES Y LIM on the head, thereby inflicting upon the latter
Generally, findings of fact of the trial courts are accorded great serious and moral gunshot wound which directly caused his death.
weight, particularly in the determination of credibility of witnesses
as said courts have the opportunity to observe the witness and the
CONTRARY TO LAW.4
manner in which they testified. However, this can be disregarded
when it appears on the record that the trial court may have
overlooked, misapprehended, or misapplied some significant fact According to the prosecution, on January 1, 2005, at around 2:30 in
or circumstance which if considered, would have altered the the afternoon, petitioner went to the office of Sykes Asia Inc.
8

result.50 This is axiomatic in appeals in criminal cases where the located at the 25th Floor of Robinson’s Summit Center,Ayala
Page

whole case is thrown open for review on issues of both fact and Avenue, Makati City. When petitioner was already inside the
building, he went to the work station of the deceased victim,
Jeffrey Wernher L. Gonzales (Jeffrey), who, by the configuration
of the eye witness Antonette Managbanag’s sketch, was seated
fronting his computer terminal, with his back towards the aisle. As
petitioner approached Jeffrey from the back, petitioner was already
holding a gun pointed at the back of Jeffrey’s head. At the last
second, Jeffrey managed to deflect the hand of petitioner holding
the gun, and a short struggle for the possession of the gun ensued
thereafter. Petitioner won the struggle and remained in possession
of the said gun. Petitioner then pointed the gun at Jeffrey’s face,
pulled the trigger four (4) times, the fourth shot finally discharging
the bullet that hit Jeffrey in the forehead, eventually killing him.
Finally, after shooting Jeffrey, petitioner fled the office.
The defense recounted a different version of the facts.
Petitioner claimed that on January1, 2005, at around 2:30 in the
afternoon, more or less, petitioner, together with his children, went
to Sykes Asia, the workplace of his wife, Darlene Dela Cruz
(Darlene), located at the 25th Floor of Robinson’s Summit
Building in Makati City, to fetch the latter so that their family
could spend time and celebrate together the New Year’s Day.
Before entering the Robinson’s Summit Building, petitioner
underwent the regular security check-up/procedures. He was
frisked by the guards-on-duty manning the main entrance of said
building and no firearm was found in his possession. He registered
his name at the security logbook and surrendered a valid I.D.
Upon reaching the 25th Floor of the same building, a security
guard manning the entrance once again frisked petitioner and,
likewise, found no gun in his possession; hence, he was allowed to
enter the premises of Sykes Asia. The security guard also pointed
to him the direction towards his wife’s table.
However, as Darlene was then not on her table, petitioner
approached a certain man and asked the latter as to the possible
whereabouts of Darlene. The person whom petitioner had talked
towas the deceased-victim, Jeffrey. After casually introducing
himself as the husband of Darlene, Jeffrey curtly told him, "Bakit
mo hinahanap si Darlene?"to which he answered, "Nagpapasundo
kasi sa akin."The response given by Jeffrey shocked and appalled
petitioner: "Ayaw na nga ng asawa mo sayo sinusundo mo pa!"
Shocked by the words and reaction of Jeffrey, petitioner tried to
inquire from Jeffrey who he was. But Jeffrey suddenly cursed
petitioner. Then, Jeffrey suddenly picked up something in his chair
which happened to be a gun and pointed the same at petitioner’s
face followed by a clicking sound. The gun, however, did not fire.
Seeing imminent danger to his life,petitioner grappled with Jeffrey
for the possession of the gun.While grappling, the gunclicked for
two (2) to three (3) more times. Again, the gun did not fire.
Petitioner was able to wrest away the gun from Jeffrey and tried to
run away to avoid any further confrontation with the
latter.However, Jeffrey immediately blocked petitioner’s path and
shouted, "Guard! Guard!" Immediately then, Jeffrey took hold ofa
big fire extinguisher, aimed and was about to smash the same on
petitioner’s head.
Acting instinctively, petitioner parried the attack while still holding
the gun. While in the act of parrying, the gun accidentally fired due
to the reasonable force and contact that his parrying hand had made
with the fire extinguisher and the single bullet discharged hit the
forehead of Jeffrey, which caused the latter to fall on the floor and
die.
9
Petitioner left the gun and went out ofthe premises of Sykes Asia
Page
and proceeded towards the elevator. On his way to the elevator, he
heard Darlene shout, "Sherwin anong nangyari?", but he was not
able to answer.
After said incident, Darlene abandoned petitioner and brought with
her their two (2) young children. Petitioner later learned that
Darlene and Jeffrey had an illicit relationship when he received a
copy of the blog of Darlene, dated January 30, 2005, sent by his
friend.
During his arraignment, on August 22, 2005, petitioner, with the
assistance of counsel, pleaded "Not Guilty" to the charge.
Thereafter, pretrial conference was conducted on even date and
trial on the merits ensued thereafter.
During the trial of the case, the prosecution presented the oral
testimonies of Marie Antonette Managbanag (Managbanag), Maria
Angelina Pelaez (Pelaez) and Carlos Alberto Lim Gonzales
(Gonzales), respectively. The prosecution likewise formally offered
several pieces of documentary evidence to support its claim.
For its part, the defense presented aswitnesses, petitioner himself;
his brother, Simeon Sander Dela Cruz III (Cruz), Greg Lasmarias
Elbanvuena (Elbanvuena) and Managbanag, who was recalled to
the witness stand as witness for the defense.
On February 26, 2007, the Regional Trial Court (RTC)of Makati
City, Branch 147, rendered a Decision5 finding petitioner guilty
beyond reasonable doubt of the crime of Homicide, as defined and
penalized under Article 249 of the Revised Penal Code (RPC), the
fallo thereof reads:
WHEREFORE, Judgment is rendered finding herein accused
Sherwin Dela Cruz y Gloria Guilty beyond reasonable doubt of the
crime of Homicide as defined and penalized under Art. 249 of the
Revised Penal Code, and sentencing him to suffer the
indeterminate penalty of Eight (8) years and One (1) day of prision
mayor medium as Minimum to Fourteen (14) years eight (8)
months and one (1) day of reclusion temporal medium as
Maximum; to indemnify the Heirs of Jeffrey Wernher Gonzales y
Lim in the amount of ₱50,000.00 plus moral damages in the
amount of ₱1 Million, and to pay the costs.
SO ORDERED.6
On March 28, 2007, petitioner filed a Notice of Appeal, while
private respondent, through the private prosecutor, filed a Notice of
Appeal on April 11, 2007 insofar as the sentence rendered against
petitioner is concerned and the civil damages awarded.
After the denial of their motion for reconsideration, petitioner
elevated the case to the Court of Appeals (CA). However, the latter
denied their appeal and affirmed the RTC decision with
modification on the civil liability of petitioner. The decretal portion
of the Decision7 reads: WHEREFORE, we hereby AFFIRM the
Decision of the Regional Trial Court of Makati, Branch 147 dated
26 February 2007 finding accused-appellant Sherwin Dela Cruz y
Gloria GUILTY beyond reasonable doubt of the crime ofHomicide
with the following MODIFICATIONS:
(1) to pay the heirs of the victim the amount of
₱50,000.00 as civil indemnity;
(2) the amount of ₱50,000.00 as moral damages;
(3) the amount of ₱25,000.00 as temperate damages;
(4) the amount of ₱3,022,641.71 as damages for loss of
earning capacity.
(5) to pay the costs of the litigation.
SO ORDERED.8
Petitioner's motion for reconsideration was denied. Hence, the
present petition.
Raised are the following issues for resolution:
1. WHETHER ALL THE REQUISITES OF THE
JUSTIFYING CIRCUMSTANCE OF SELF-DEFENSE, AS
PROVIDED FOR BY LAW AND SETTLED
JURISPRUDENCE, ARE PRESENT IN THIS CASE.
2. WHETHER THE FIRING OF THE GUN WHEREIN ONLY
A SINGLE BULLET WAS DISCHARGED THEREFROM
WAS MERELY ACCIDENTAL WHICH OCCURRED
DURING THE TIME THAT THE PETITIONER-
APPELLANT WAS STILL IN THE ACT OF DEFENDING
HIMSELF FROM THE CONTINUOUS UNLAWFUL
AGGRESSION OF THE DECEASED VICTIM.
3. WHETHER THE PROSECUTION WAS ABLE TO PROVE
ALL THE ESSENTIAL ELEMENTS CONSTITUTING THE
CRIME OF HOMICIDE.
4. WHETHER THE PRIVILEGED MITIGATING
CIRCUMSTANCE OF SELF-DEFENSE IS APPLICABLE IN
THIS CASE.
5. WHETHER PETITIONER-APPELLANT MAY BE HELD
CIVILLY LIABLE FOR THE DEATH OF THE VICTIM
ARISING FROM THE ACCIDENT THAT TRANSPIRED.9
There is no question that petitioner authored the death of the
deceased-victim, Jeffrey. What is leftfor determination by this
Court is whether the elements of self-defenseexist to exculpate
petitioner from the criminal liability for Homicide.
The essential requisites of self-defense are the following: (1)
unlawful aggression on the part of the victim; (2) reasonable
necessity of the means employed to prevent or repel such
aggression; and (3) lackof sufficient provocation on the part of the
person resorting to self-defense.10 In other words, there must have
been an unlawful and unprovoked attack that endangered the life of
the accused, who was then forced to inflict severe wounds upon the
assailant by employing reasonable means to resist the attack. 11
Considering that self-defense totally exonerates the accused from
any criminal liability, it is well settled thatwhen he invokes the
same, it becomes incumbent upon him to prove by clear and
convincing evidence that he indeed acted in defense of
himself.12 The burden of proving that the killing was justified and
that he incurred no criminal liability therefor shifts upon him. 13 As
such, he must rely on the strength of his own evidence and not on
the weakness of the prosecution for, even if the prosecution
evidence is weak, it cannot be disbelieved after the accused himself
has admitted the killing.14
Measured against this criteria, wefind that petitioner's defense is
sorely wanting. Hence, his petition must be denied.
First. The evidence on record does not support petitioner's
contention that unlawful aggression was employed by the
deceased-victim, Jeffrey, against him.
Unlawful aggression is the most essential element of self-defense.
It presupposes actual, sudden, unexpected or imminent danger —
not merely threatening and intimidating action. 15 There is
aggression, only when the one attacked faces real and immediate
threat to his life.16 The peril sought to be avoided must be imminent
and actual, not merely speculative.17 In the case at bar, other than
petitioner’s testimony, the defense did not adduce evidence to show
10
that Jeffrey condescendingly responded to petitioner’s questions or
initiated the confrontation before the shooting incident; that Jeffrey
pulled a gun from his chair and tried to shoot petitioner but failed
Page
— an assault which may have caused petitioner to fear for his life.
Even assuming arguendothat the gun originated from Jeffrey and
an altercation transpired, and therefore, danger may have in fact
existed, the imminence of that danger had already ceased the
moment petitioner disarmed Jeffrey by wresting the gun from the
latter. After petitioner had successfully seized it, there was no
longer any unlawful aggression to speak of that would have
necessitated the need to kill Jeffrey. As aptly observed by the RTC,
petitioner had every opportunity to run away from the scene and
seek help but refused to do so, thus:
In this case, accused and the victim grappled for possession of the
gun.1avvphi1 Accused admitted that he wrested the gun from the
victim. From that point in time until the victim shouted "guard,
guard", then took the fire extinguisher, there was no unlawful
aggression coming from the victim. Accused had the opportunity to
run away. Therefore, even assuming that the aggression with use of
the gun initially came from the victim, the fact remains that it
ceased when the gun was wrested away by the accused from the
victim. It is settled that when unlawful aggression ceases, the
defender no longer has any right to kill or wound the former
aggressor, otherwise, retaliation and not self-defense is committed
(Peo Vs. Tagana, 424 SCRA 620). A person making a defense has
no more right to attack an aggressor when the unlawful aggression
has ceased (PeoVs. Pateo, 430 SCRA 609).
Accused alleged that the victimwas about to smash the fire
extinguisher on his (accused’s) headbut he parried it with his hand
holding the gun. This is doubtful as nothing in the records is or
would be corroborative of it.In contrast, the two (2) Prosecution
witnesses whose credibility was not impeached, both gave the
impression that the victim got the fire extinguisher to shieldhimself
from the accused who was then already in possession of the gun. 18
Thus, when an unlawful aggression that has begun no longer exists,
the one who resorts to self-defense has no right to kill or even
wound the former aggressor.19 To be sure, when the present victim
no longer persisted in his purpose or action to the extent that the
object of his attack was no longer in peril, there was no more
unlawful aggression that would warrant legal self-defense on the
part of the offender.20 Undoubtedly, petitioner went beyond the call
of self-preservation when he proceeded to inflict excessive,
atrocious and fatal injuries on Jeffrey, even when the allegedly
unlawful aggression had already ceased.
More, a review of the testimony of the prosecution witness, Pelaez,
will show that if there was unlawful aggression in the instant case,
the same rather emanated from petitioner, thus: DIRECT
EXAMINATION
Atty. Mariano:
Q: Can you relate to the Court, Ms. Witness, how did this incident
happen?
A: We were still at work, we were expecting calls but there were no
calls at the moment and I was standing at my work station and then
Sherwin approached Jeff and he pointed a gun at the back of the
head of Jeff.
Q: And then what happened?
A: And then Jeff parried the gun and they started struggling for the
possession of the gun.
Q: How far were you from this struggle when you witnessed it?
A: Probably 10 to 12 feet.
Q: Going back to your story, Ms. Witness, you mentioned that after
Jeffrey warded off the gun, they started to struggle, what happened
after that, if any?
A: After they struggled, the gun clicked three times and then after
that Jeff tried to get hold of the fire extinguisher and the fourth shot
went off and then Jeffrey fell down.
Q: And who was holding the gun?
A: Sherwin was holding the gun. (TSN, Oct. 17, 2005, pp. 12-14)
CROSS-EXAMINATION: Atty. Agoot:
Q: So you did not see when Sherwin approached Jeffrey because
he came from the other side? Atty. Mariano:
Objection, your Honor, witness already answered that.
Atty. Agoot:
I am on cross examination, your Honor.
COURT
You didn’t not see when he approached Jeffrey? A: No, as I said, I
saw him point the gun at the back of Jeff and he did not come from
my side so that means…
COURT
No, the question is, You did not actually see Sherwin approached
Jeffrey?
A: I saw him already at the back of Jeffrey.
Atty. Agoot
He was already at the back of Jeffrey when you saw him?
A: Yes, Sir.
(TSN, Oct. 17, 2005, pp. 26-27)21
Clearly, petitioner's allegation that when he approached Jeffrey, the
latter pulled a gun from his chair and tried to shoot him, is not
corroborated by separate competent evidence. Pitted against the
testimony of prosecution witnesses, Managbanag and Pelaez, it
pales incomparison and loses probative value. We have, on more
thanone occasion, ruled that the plea of self-defense cannot be
justifiably entertained where it is not only uncorroborated by any
separate competent evidence but also extremely doubtful in itself. 22
In addition, other than petitioner’s testimony, there is dearth of
evidence showing that the alleged unlawful aggression on the part
of Jeffrey continued when he blocked the path of petitioner while
the latter tried to run away to avoid further confrontation with
Jeffrey. We also agree with the findings of the RTC that there was
no proof evincing that Jeffrey aimed and intended to smash the big
fire extinguisher on petitioner’s head. Alternatively, the prosecution
witnesses maintained an impression that Jeffrey used the same to
shield himself from petitioner who was then in possession of the
gun, a deadly weapon. An excerpt of the testimony of Managbanag
bares just that, to wit:
Atty. Agoot
Q: And then after pulling the fire extinguisher from the wall Jeffrey
again faced the person who was holding the gun already?
Witness:
A: He was holding the fire extinguisher like this.
COURT
For the record.
Atty. Mariano:
Witness demonstrating how the victim Jeffrey Gonzales was
holding the fire extinguisher upright with his right hand above the
fire extinguisher and his left hand below the fire extinguisher.
Witness:
The left hand would support the weight basically.
Atty. Agoot
Q: And then he used that fire extinguisher to protect himself from
the slapping of that person who was in possession of the gun?
Witness
A: Yes, sir.
Atty. Agoot
Q: And then after that there was again a grappling?
Witness
A: No more grappling for possession. Because Jeffrey was still
holding the fire extinguisher at thattime. And then he fell holding
on to the fire extinguisher.
Atty. Agoot
Q: You said here which I quote "binaril siya ng lalaki ng sunod-
11
sunod pero hindi pumutok" Do you affirmand confirm this
statement?
Page
Witness
A: Yes, sir. They were pushing each other. The other person was
trying to point the gun at Jeffrey and Jeffrey was trying to cover
himself with the fire extinguisher so nagkakatulakan sila at the
same time.
Atty. Agoot
Q: You said that the gun clicked, how many times did the gun click
without firing?
Witness
A: Three (3) times, sir.
Atty. Agoot
Q: And what did the late Jeffrey do when the gun clicked but did
not fire?
Witness
A: They were still pushing each other at that time.
Atty. Agoot
Q: Using the fire extinguisher, heused that to push against the
person…
Witness
A: Basically trying to cover himself and trying to push away the
person who was pointing the gun at him.
Atty. Agoot
Q: And why do you know that Jeffrey was trying hard to push the
fire extinguisher?
Witness
A: Because I was seated roughly about 5 to 6 feet away from them.
So I clearly saw what was going on at that time.
(Direct Examination of Marie Antonette Managbanag for the
Defense, TSN dated 04 September 2006, pp. 12-17, emphasis
supplied)23
Petitioner’s contention that Jeffrey’s unlawful aggression was
continuous and imminent is, therefore, devoid of merit.
Given that the criteria of unlawful aggression is indubitably absent
in the instant case, the severe wounds inflicted by petitioner upon
Jeffrey was unwarranted and, therefore, cannot be considered a
justifying circumstance under pertinent laws and jurisprudence.
Second. Even assuming that the unlawful aggression emanated
from the deceased victim, Jeffrey, the means employed by
petitioner was not reasonably commensurate to the nature and
extent of the alleged attack, which he sought to avert. As held by
the Court in People v. Obordo:24
Even assuming arguendo that there was unlawful aggression on the
part of the victim, accused-appellant likewise failed to prove that
the means he employed to repel Homer's punch was reasonable.
The means employed by the person invoking self-defense
contemplates a rational equivalence between the means of attack
and the defense. Accused appellant claimed that the victim
punched him and was trying to get something from his waist, so he
(accused-appellant) stabbed the victim with his hunting knife. His
act of immediately stabbing Homer and inflicting a wound on a
vital part ofthe victim's body was unreasonable and unnecessary
considering that, as alleged by accused-appellant himself, the
victim used his bare fist in throwing a punch at him. 25
Indeed, the means employed by a person resorting to self-defense
must be rationally necessary to prevent or repel an unlawful
aggression. The opposite was, however, employed by petitioner, as
correctly pointed out by the RTC, thus:
The victim was holding the fire extinguisher while the second was
holding the gun. The gun and the discharge thereof was
unnecessary and disproportionate to repel the alleged aggression
with the use of fire extinguisher. The rule is that the means
employed by the person invoking self-defense contemplates a
rational equivalence between the means of attack and the defense
(Peo vs. Obordo, 382 SCRA 98).
It was the accused who was in a vantage position as he was armed
with a gun, as against the victim who was armed, so to speak, with
a fire extinguisher, which is not a deadly weapon. Under the
circumstances, accused’s alleged fear was unfounded. The
Supreme Court has ruled that neither an imagined impending attack
nor an impending or threatening attitude is sufficient to constitute
unlawful aggression (Catalina Security Agency Vs. Gonzales-
Decano, 429 SCRA 628). It is a settled rule that to constitute
aggression, the person attacked must be confronted by a real threat
on his lifeand limb; and the peril sought to be avoided is imminent
and actual, not merely imaginary (Senoja v. Peo., 440 SCRA
695).26
If petitioner had honestly believed that Jeffrey was trying to kill
him, he should have just run, despite any obstruction, considering
that he was already in possession of the gun. He could have also
immediately sought help from the people around him, specifically
the guard stationed at the floor where the shooting incident
happened. In fact, he could have reported the incident to the
authorities as soon as he had opportunity to do so, if it was indeed
an accident or a cry of self-preservation. Yet, petitioner never did
any of that.
We find it highly specious for petitioner to go through the process
of tussling and hassling with Jeffrey, and inthe end, shooting the
latter on the forehead, not only once, but four times, the last shot
finally killing him, if he had no intention to hurt Jeffrey. Thus:
Moreover, the Prosecution’s eyewitnesses were consistent in
declaring that while there was prior struggle for the possession of
the gun, it was nevertheless accused who was holding the gun at
the time of the actual firing thereof (TSN, p. 30, October 10, 2005;
TSN, p. 14, October 17, 2005). Witness Managbanag even alleged
that while the victim (Jeffrey), who was in possession of the fire
extinguisher, and the accused were pushing each other, accused
pointed the gun at the victim. She heard three (3) clicks and on the
4th , the gun fired (TSN, p. 12, October 10, 2005). Under the
circumstances, it cannot be safely said that the gun was or could
have been fired accidentally. The discharge of the gun which led to
the victim’s death was no longer made in the course of the grapple
and/or struggle for the possession of the gun.27
The observation of the RTC dispels any doubt that the gun may
have been shot accidentally to the detriment of Jeffrey. The fire
was neither a disaster nor a misfortune of sorts. While petitioner
may nothave intended to kill Jeffrey at the onset, at the time he
clicked the trigger thrice consecutively, his intent to hurt (or even
kill) Jeffrey was too plain to be disregarded. We have held in the
pastthat the nature and number of wounds are constantly and
unremittingly considered important indicia which disprove a plea
of self-defense.28 Thus, petitioner’s contention that an accident
simultaneously occurred while hewas in the act of self-defense is
simply absurd and preposterous at best. There could nothave been
an accident because the victim herein suffered a gunshot wound on
his head, a vital part of the body and, thus, demonstrates a criminal
mind resolved to end the life of the victim.
Besides, petitioner’s failure to inform the police of the unlawful
aggression on the part of Jeffrey and to surrender the gun that he
used to kill the victim militates against his claim of self-defense. 29
In view of the foregoing, we find it illogical to discuss further the
third element of self-defense since it is recognized that unlawful
aggression is a conditio sine qua nonfor upholding the justifying
circumstance of self-defense.30 If there is nothing to prevent or
repel, the other two requisites of self-defense will have no
12
basis.31 Hence, there is no basis to entertain petitioner’s argument
that a privileged mitigating circumstance of selfdefense is
Page
applicable in this case, because unless the victim has committed
unlawful aggression against the other, there can be no self-defense,
complete or incomplete, on the part of the latter. 32
Anent petitioner’s argument thatthe RTC erred when it failed to
consider as suppression of evidence the prosecution’s alleged
deliberate omission to present the testimonies of the security
guards-on-duty at the time of the shooting incident, the same fails
to persuade. We concur with the decision of the CA on this point,
to wit:
Having admitted the killing of the victim, the burden of evidence
that he acted in self-defense, shifted to accused-appellant Dela
Cruz. He must rely on the strength of his own evidence and not on
the weakness of the prosecution’s evidence, for, even if the latter
were weak, it could not be disbelieved after his open admission of
responsibility for the killing.
The security guards on duty at the time of the subject incident were
at the disposal of both the prosecution and the defense. The defense
did not proffer proof that the prosecution prevented the security
guards from testifying. There is therefore no basis for it to
conclude that the prosecution is guilty of suppression of evidence.
The defense could have easily presented the security guards if it is
of the opinion that their [the security guards] testimonies were vital
and material to the case of the defense. It could have compelled the
security guards on duty to appear before the court. xxx. 33
It is worthy to note that the question of whether petitioner acted in
self-defense is essentially a question of fact. 34 It is the peculiar
province of the trial court to determine the credibility of witnesses
and related questions of fact because of its superior advantage in
observing the conduct and demeanor of witnesses while
testifying.35 This being so and in the absence of a showing that the
CA and the RTC failed to appreciate facts or circumstances of such
weight and substance that would have merited petitioner's
acquittal, this Court finds no compelling reason to disturb the
ruling of the CA that petitioner did not act in self-defense. 36
In this regard, we do not subscribe to petitioner’s contention that
since the incident transpired in Jeffrey’s office, and the witnesses
presented by the prosecution are known officemates of Jeffrey, the
witnesses are expected to testify in favor of Jeffrey and against
petitioner. Ascorrectly pointed out by respondent, there appears no
motive on the part of the prosecution witnesses to falsely testify
against petitioner.37 The fact that they are officemates of Jeffrey
does not justify a conclusion that Managbanag and Pelaez would
concoct or fabricate stories in favorof Jeffrey for the mere purpose
of implicating petitioner with such a serious crime, especially since
they are testifying under oath.
All told, we find no basis to doubt ordispute, much less overturn,
the findings of the RTC and the CA that the elements of homicide
are present in the instant case as amply shown by the testimonies of
the prosecution eyewitnesses, and they constitute sufficient proof
of the guilt of petitioner beyond cavil or doubt.
Nevertheless, with regard to the appreciation of the aggravating
circumstance of use of an unlicensed firearm, we deviate from the
findings of the CA. A perusal of the Information will show that the
use of unlicensed firearm was expressly alleged in the killing of
Jeffrey. This allegation was further proved during trial by the
presentation of the Certification from the PNP Firearms and
Explosives Division, dated November 11, 2005, certifying that
petitioner is not a licensed/registered firearm holder of any kind
and calibre, per verification from the records of the said Division.
Accordingly, under Paragraph 3 of Section 1 of Republic Act
(R.A.) No. 8294, amending Section 1 of Presidential Decree (P.D.)
No. 1866, such use of an unlicensed firearm shall be considered as
an aggravating circumstance, to wit:
 xxxx
If homicide or murder is committed with the use of an unlicensed
firearm, such use of an unlicensed firearm shall be considered as an
aggravating circumstance.
x x x x.
Under Article 249 of the RPC, the penalty for homicide is reclusion
temporal. There being an aggravating circumstance of use of
unlicensed firearm, the penalty imposable on petitioner should be
in its maximum period.38Applying the Indeterminate Sentence Law,
the petitioner shall be sentenced to an indeterminate penalty of
from ten (10) years and one (1) day of prision mayor maximum, as
the minimum penalty, to seventeen (17) years, four (4) months and
one (1) day of reclusion temporal maximum, as the maximum
penalty.
As to the award of civil indemnity, moral damages, and damages
for loss of earning capacity in favor ofprivate respondent, we
sustain the findings of the CA in so far as they are in accordance
with prevailing jurisprudence. In addition, we find the grant of
exemplary damages in the present case in order, since the presence
of special aggravating circumstance of use of unlicensed firearm
has been established.39 Based on current jurisprudence, the award
of exemplary damages for homicide is ₱30,000.00.40
Finally, pursuant to this Court’s ruling in Nacar v. Gallery
Frames,41 an interest of six percent (6%) per annum on the
aggregate amount awarded for civil indemnity and damages for
loss of earning capacity shall be imposed, computed from the time
of finality of this Decision until full payment thereof.
WHEREFORE, the petition is DENIED. The May 7, 2009
Decision and August 19, 2009 Resolution of the Court of Appeals
in CA-G.R. CV No. 89257, finding petitioner Sherwin Dela Cruz
guilty beyond reasonable doubt of the crime of Homicide, are
hereby AFFIRMED with MODIFICATIONS, to wit:
(1) Petitioner shall be sentenced to an indeterminate penalty of
from ten (10) years and one (1) day of prision mayor maximum, as
the minimum penalty, to seventeen (17) years, four (4) months and
one (1) day of reclusion temporal maximum, as the maximum
penalty;
(2) Petitioner is likewise ORDERED to pay the heirs of the victim
the following:
a. the amount of ₱50,000.00 as civil indemnity;
b. the amount of ₱50,000.00 as moral damages;
c. the amount of ₱25,000.00 as temperate damages;
d. the amount of ₱30,000.00 as exemplary damages;
e. the amount of ₱3,022,641.71 as damages for loss of earning
capacity;
f. for the civil indemnity and the damages for loss of earning
capacity, an interest of six percent (6%) per annum, computed
from the time of finality of this Decision until full payment
thereof; and
g. the costs of the litigation.
PEOPLE OF THE PHILIPPINES vs. MAMERTO NARVAEZ
13
This is an appeal from the decision of the Court of First Instance of
South Cotabato, Branch I, in Criminal Cases Nos. 1815 and 1816
for murder which, after a joint trial, resulted in the conviction of
Page
the accused in a decision rendered on September 8, 1970, with the
following pronouncement:
Thus, we have a crime of MURDER qualified by treachery
with the aggravating circumstance of evident premeditation
offset by the mitigating circumstance of voluntary surrender.
The proper penalty imposable, therefore, is RECLUSION
PERPETUA (Arts. 248 and 64, Revised Penal Code).
Accordingly, finding Mamerto Narvaez guilty beyond
reasonable doubt of the crime of murder,
(a) In Criminal Case No. 1815, he is hereby sentenced to
RECLUSION PERPETUA, to indemnify the heirs of the
deceased Davis Q. Fleischer in the sum of P 12,000.00 as
compensatory damages, P 10,000.00 as moral damages, P
2,000.00 as attorney's fees, the offended party having been
represented by a private prosecutor, and to pay the costs;
(b) In Criminal Case No. 1816, he is hereby sentenced to
RECLUSION PERPETUA, to indemnify the heirs of the
deceased Flaviano Rubia in the sum of P12,000.00 as
compensatory damages, P10,000.00 as moral damages,
P2,000.00 as attorney's fees, the offended party having been
represent by a private prosecutor, and to pay the costs (p. 48,
rec.).
The facts are summarized in the People's brief, as follows:
At about 2:30 in the afternoon of August 22, 1968, Graciano
Juan, Jesus Verano and Cesar Ibanez together with the two
deceased Davis Fleischer and Flaviano Rubia, were fencing
the land of George Fleischer, father of deceased Davis
Fleischer. The place was in the boundary of the highway and
the hacienda owned by George Fleischer. This is located in the
municipality of Maitum, South Cotabato. At the place of the
fencing is the house and rice drier of appellant Mamerto
Narvaez (pp. 179-182, t.s.n., Pieza II). At that time, appellant
was taking his rest, but when he heard that the walls of his
house were being chiselled, he arose and there he saw the
fencing going on. If the fencing would go on, appellant would
be prevented from getting into his house and the bodega of his
ricemill. So he addressed the group, saying 'Pare, if possible
you stop destroying my house and if possible we will talk it
over what is good,' addressing the deceased Rubia, who is
appellant's compadre. The deceased Fleischer, however,
answered: 'No, gademit, proceed, go ahead.' Appellant
apparently lost his equilibrium and he got his gun and shot
Fleischer, hitting him. As Fleischer fell down, Rubia ran
towards the jeep, and knowing there is a gun on the jeep,
appellant fired at Rubia, likewise hitting him (pp. 127-133,
t.s.n., Defense transcript). Both Fleischer and Rubia died as a
result of the shotting' (pp. 9-14, t.s.n., Pieza I, pp. 8-9,
Appellant's Brief, p.161, rec.).
It appears, however, that this incident is intertwined with the long
drawn out legal battle between the Fleischer and Co., Inc. of which
deceased Fleischer was the secretary-treasurer and deceased Rubia
the assistant manager, on the one hand, and the land settlers of
Cotabato, among whom was appellant.
From the available records of the related cases which had been
brought to the Court of Appeals (CA-G.R. Nos. 28858-R and
50583-R) and to this Court on certiorari (G.R. No. L-26757 and L-
45504), WE take judicial notice of the following antecedent facts:
Appellant was among those persons from northern and central
Luzon who went to Mindanao in 1937 and settled in Maitum, a
former sitio of Kiamba and now a separate municipality of South
Cotabato. He established his residence therein, built his house,
cultivated the area, and was among those who petitioned then
President Manuel L. Quezon to order the subdivision of the defunct
Celebes Plantation and nearby Kalaong Plantation totalling about
2,000 hectares, for distribution among the settlers.
Shortly thereafter, Fleischer and Company, headed by George W.
Fleischer, an American landowner in Negros Oriental, filed sales
application No. 21983 on June 3, 1937 over the same area formerly
leased and later abandoned by Celebes Plantation Company,
covering 1,017.2234 hectares.
Meanwhile, the subdivision was ordered and a public land surveyor
did the actual survey in 1941 but the survey report was not
submitted until 1946 because of the outbreak of the second world
war. According to the survey, only 300 hectares Identified as Lots
Nos. 22, 26 and 38, Ps. 176 Kiamba, were set aside for Sales
Application No. 21983, while the rest were subdivided into sublots
of 5 to 6 hectares each to be distributed among the settlers (pp. 32-
33, G.R. No. L-45504).
The 300 hectares set aside for the sales application of Fleischer and
Company was declared open for disposition, appraised and
advertised for public auction. At the public auction held in Manila
on August 14, 1948, Fleischer and Company was the only bidder
for P6,000.00. But because of protests from the settlers the
corresponding award in its favor was held in abeyance, while an
investigator was sent by the Director of Lands to Kiamba in the
person of Atty. Jose T. Gozon Atty. Gozon came back after ten days
with an amicable settlement signed by the representative of the
settlers. This amicable settlement was later repudiated by the
settlers, but the Director of Lands, acting upon the report of Atty.
Gozon, approved the same and ordered the formal award of the
land in question to Fleischer and Company. The settlers appealed to
the Secretary of Agriculture and Natural Resources, who, however,
affirmed the decision in favor of the company.
On May 29, 1950, the settlers filed Civil Case No. 240 in the Court
of First Instance of Cotabato which then consisted only of one sala,
for the purpose of annulling the order of the Secretary of
Agriculture and Natural Resources which affirmed the order of the
Director of Lands awarding the contested land to the company. The
settlers as plaintiffs, lost that case in view of the amicable
settlement which they had repudiated as resulting from threats and
intimidation, deceit, misrepresentation and fraudulent machination
on the part of the company. They appealed to the Court of Appeals
(CA-G.R. No. 28858-R) which likewise affirmed on August 16,
1965 the decision of the Court of First Instance in favor of the
company.
This resulted in the ouster of the settlers by an order of the Court of
First Instance dated September 24, 1966, from the land which they
had been occupying for about 30 years. Among those ejected was
the appellant who, to avoid trouble, voluntarily dismantled his
house, built in 1947 at a cost of around P20,000.00, and transferred
to his other house which he built in 1962 or 1963 near the highway.
The second house is not far from the site of the dismantled house.
Its ground floor has a store operated by Mrs. June Talens who was
renting a portion thereof. He also transferred his store from his
former residence to the house near the highway. Aside from the
store, he also had a rice mill located about 15 meters east of the
house and a concrete pavement between the rice mill and the
house, which is used for drying grains and copra.
On November 14, 1966, appellant was among the settlers on whose
behalf Jose V. Gamboa and other leaders filed Civil Case No. 755
in the Court of First Instance of Cotabato, Branch I. to obtain an
injunction or annulment of the order of award with prayer for
preliminary injunction. During the pendency of this case, appellant
14
on February 21, 1967 entered into a contract of lease with the
company whereby he agreed to lease an area of approximately 100
Page
to 140 square meters of Lot No. 38 from the company (Exh. 9, p. 1,
Folder of Exhibits for Defense) for a consideration of P16.00
monthly. According to him, he signed the contract although the
ownership of the land was still uncertain, in order to avoid trouble,
until the question of ownership could be decided. He never paid the
agreed rental, although he alleges that the milling job they did for
Rubia was considered payment. On June 25, 1968, deceased
Fleischer wrote him a letter with the following tenor:
You have not paid six months rental to Fleischers & Co., Inc.
for that portion of land in which your house and ricemill are
located as per agreement executed on February 21, 1967. You
have not paid as as even after repeated attempts of collection
made by Mr. Flaviano Rubia and myself.
In view of the obvious fact that you do not comply with the
agreement, I have no alternative but to terminate our
agreement on this date.
I am giving you six months to remove your house, ricemill,
bodega, and water pitcher pumps from the land of Fleischers
& Co., Inc. This six- month period shall expire on December
31, 1966.
In the event the above constructions have not been removed
within the six- month period, the company shall cause their
immediate demolition (Exhibit 10, p. 2, supra).
On August 21, 1968, both deceased, together with their laborers,
commenced fencing Lot 38 by putting bamboo posts along the
property line parallel to the highway. Some posts were planted
right on the concrete drier of appellant, thereby cutting diagonally
across its center (pp. 227-228, t.s.n., Vol. 2), with the last post just
adjacent to appellant's house (p. 231, t.s.n., supra). The fence,
when finished, would have the effect of shutting off the
accessibility to appellant's house and rice mill from the highway,
since the door of the same opens to the Fleischers' side. The
fencing continued on that fateful day of August 22, 1968, with the
installation of four strands of barbed wire to the posts.
At about 2:30 p.m. on the said day, appellant who was taking a nap
after working on his farm all morning, was awakened by some
noise as if the wall of his house was being chiselled. Getting up
and looking out of the window, he found that one of the laborers of
Fleischer was indeed chiselling the wall of his house with a
crowbar (p. 129, t.s.n., Vol. 6), while deceased Rubia was nailing
the barbed wire and deceased Fleischer was commanding his
laborers. The jeep used by the deceased was parked on the
highway. The rest of the incident is narrated in the People's Brief as
above-quoted. Appellant surrendered to the police thereafter,
bringing with him shotgun No. 1119576 and claiming he shot two
persons (Exh. Pp. 31, Defense Exhibits).
Appellant now questions the propriety of his conviction, assigning
the following errors:
First Assignment of Error: That the lower court erred in
convicting defendant-appellant despite the fact that he acted in
defense of his person; and
Second Assignment of Error: That the court a quo also erred in
convicting defendant-appellant although he acted in defense
of his rights (p. 20 of Appellant's Brief, p. 145, rec.).
The act of killing of the two deceased by appellant is not disputed.
Appellant admitted having shot them from the window of his house
with the shotgun which he surrendered to the police authorities. He
claims, however, that he did so in defense of his person and of his
rights, and therefore he should be exempt from criminal liability.
Defense of one's person or rights is treated as a justifying
circumstance under Art. 11, par. 1 of the Revised Penal Code, but
in order for it to be appreciated, the following requisites must
occur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to
prevent or repel it;
Third. Lack of sufficient provocation on the part of the person
defending himself (Art. 11, par. 1, Revised Penal Code, as
amended).
The aggression referred to by appellant is the angry utterance by
deceased Fleischer of the following words: "Hindi, sigue, gademit,
avante", in answer to his request addressed to his compadre, the
deceased Rubia, when he said, "Pare, hinto mona ninyo at pag-
usapan natin kung ano ang mabuti" (pp. 227-229, t.s.n., Vol. 6).
This was in reaction to his having been awakened to see the wall of
his house being chiselled. The verbal exchange took place while
the two deceased were on the ground doing the fencing and the
appellant was up in his house looking out of his window (pp. 225-
227, supra). According to appellant, Fleischer's remarks caused
this reaction in him: "As if, I lost my senses and unknowingly I
took the gun on the bed and unknowingly also I shot Mr. Fleischer,
without realizing it, I shot Mr. Fleischer" (p. 132, supra). As for the
shooting of Rubia, appellant testified:
When I shot Davis Fleischer, Flaviano Rubia was nailing and
upon hearing the shot, Mr. Rubia looked at Mr. Fleischer and
when Mr. Fleischer fell down, Mr. Rubia ran towards the jeep
and knowing that there was a firearm in the jeep and thinking
that if he will take that firearm he will kill me, I shot at him
(p. 132, supra, Emphasis supplied).
The foregoing statements of appellant were never controverted by
the prosecution. They claim, however, that the deceased were in
lawful exercise of their rights of ownership over the land in
question, when they did the fencing that sealed off appellant's
access to the highway.
A review of the circumstances prior to the shooting as borne by the
evidence reveals that five persons, consisting of the deceased and
their three laborers, were doing the fencing and chiselling of the
walls of appellant's house. The fence they were putting up was
made of bamboo posts to which were being nailed strands of
barbed wire in several layers. Obviously, they were using tools
which could be lethal weapons, such as nail and hammer, bolo or
bamboo cutter, pliers, crowbar, and other necessary gadgets.
Besides, it was not disputed that the jeep which they used in going
to the place was parked just a few steps away, and in it there was a
gun leaning near the steering wheel. When the appellant woke up
to the sound of the chiselling on his walls, his first reaction was to
look out of the window. Then he saw the damage being done to his
house, compounded by the fact that his house and rice mill will be
shut off from the highway by the fence once it is finished. He
therefore appealed to his compadre, the deceased Rubia, to stop
what they were doing and to talk things over with him. But
deceased Fleischer answered angrily with 'gademit' and directed his
men to proceed with what they were doing.
The actuation of deceased Fleischer in angrily ordering the
continuance of the fencing would have resulted in the further
chiselling of the walls of appellant's house as well as the closure of
15
the access to and from his house and rice mill-which were not only
imminent but were actually in progress. There is no question,
therefore, that there was aggression on the part of the victims:
Page
Fleischer was ordering, and Rubia was actually participating in the
fencing. This was indeed aggression, not on the person of
appellant, but on his property rights.
The question is, was the aggression unlawful or lawful? Did the
victims have a right to fence off the contested property, to destroy
appellant's house and to shut off his ingress and egress to his
residence and the highway?
Article 30 of the Civil Code recognizes the right of every owner to
enclose or fence his land or tenements.
However, at the time of the incident on August 22, 1968, Civil
Case no. 755 for annulment of the order of award to Fleischer and
Company was still pending in the Court of First Instance of
Cotabato. The parties could not have known that the case would be
dismissed over a year after the incident on August 22, 1968, as it
was dismissed on January 23, 1970 on ground of res judicata, in
view of the dismissal in 1965 (by the Court of Appeals) of Civil
Case No. 240 filed in 1950 for the annulment of the award to the
company, between the same parties, which the company won by
virtue of the compromise agreement in spite of the subsequent
repudiation by the settlers of said compromise agreement; and that
such 1970 dismissal also carried the dismissal of the supplemental
petition filed by the Republic of the Philippines on November 28,
1968 to annul the sales patent and to cancel the corresponding
certificate of title issued to the company, on the ground that the
Director of Lands had no authority to conduct the sale due to his
failure to comply with the mandatory requirements for publication.
The dismissal of the government's supplemental petition was
premised on the ground that after its filing on November 28, 1968,
nothing more was done by the petitioner Republic of the
Philippines except to adopt all the evidence and arguments of
plaintiffs with whom it joined as parties-plaintiffs.
Hence, it is reasonable to believe that appellant was indeed hoping
for a favorable judgment in Civil Case No. 755 filed on November
14, 1966 and his execution of the contract of lease on February 21,
1967 was just to avoid trouble. This was explained by him during
cross-examination on January 21, 1970, thus:
It happened this way: we talked it over with my Mrs. that we
better rent the place because even though we do not know who
really owns this portion to avoid trouble. To avoid trouble we
better pay while waiting for the case because at that time, it was
not known who is the right owner of the place. So we decided
until things will clear up and determine who is really the owner,
we decided to pay rentals (p. 169, t.s.n., Vol.6).
In any case, Fleischer had given him up to December 31, 1968
(Exh.10, p. 2, Defense Exhibits) within which to vacate the land.
He should have allowed appellant the peaceful enjoyment of his
properties up to that time, instead of chiselling the walls of his
house and closing appellant's entrance and exit to the highway.
The following provisions of the Civil Code of the Philippines are
in point:
Art. 536. In no case may possession be acquired through force
or intimidation as long as there is a possessor who objects
thereto. He who believes that he has an action or a right to
deprive another of the holding of a thing must invoke the aid
of the competent court, if the holder should refuse to deliver
the thing.
Art. 539. Every possessor has a right to be respected in his
possession; and should he be disturbed therein he shall be
protected in or restored to said possession by the means
established by the laws and the Rules of Court (Articles 536
and 539, Civil Code of the Philippines).
Conformably to the foregoing provisions, the deceased had no right
to destroy or cause damage to appellant's house, nor to close his
accessibility to the highway while he was pleading with them to
stop and talk things over with him. The assault on appellant's
property, therefore, amounts to unlawful aggression as
contemplated by law.
Illegal aggression is equivalent to assault or at least threatened
assault of immediate and imminent kind (People vs.
Encomiendas, 46 SCRA 522).
In the case at bar, there was an actual physical invasion of
appellant's property which he had the right to resist, pursuant to
Art. 429 of the Civil Code of the Philippines which provides:
Art. 429. The owner or lawful possessor of a thing has the
right to exclude any person from the enjoyment and disposal
thereof. For this purpose, he may use such force as may be
reasonably necessary to repel or prevent an actual or
threatened unlawful physical invasion or usurpation of his
property (Emphasis supplied).
The reasonableness of the resistance is also a requirement of the
justifying circumstance of self-defense or defense of one's rights
under paragraph 1 of Article 11, Revised Penal Code. When the
appellant fired his shotgun from his window, killing his two
victims, his resistance was disproportionate to the attack.
WE find, however, that the third element of defense of property is
present, i.e., lack of sufficient provocation on the part of appellant
who was defending his property. As a matter of fact, there was no
provocation at all on his part, since he was asleep at first and was
only awakened by the noise produced by the victims and their
laborers. His plea for the deceased and their men to stop and talk
things over with him was no provocation at all.
Be that as it may, appellant's act in killing the deceased was not
justifiable, since not all the elements for justification are present.
He should therefore be held responsible for the death of his
victims, but he could be credited with the special mitigating
circumstance of incomplete defense, pursuant to paragraph 6,
Article 13 of the Revised Penal Code.
The crime committed is homicide on two counts. The qualifying
circumstance of treachery cannot be appreciated in this case
because of the presence of provocation on the part of the deceased.
As WE held earlier in People vs. Manlapaz (55 SCRA 598), the
element of a sudden unprovoked attack is therefore lacking.
Moreover, in order to appreciate alevosia, "it must clearly appear
that the method of assault adopted by the aggressor was
deliberately chosen with a special view to the accomplishment of
the act without risk to the assailant from any defense that the party
assailed might have made. This cannot be said of a situation where
the slayer acted instantaneously ..." (People vs. Cañete, 44 Phil.
481).
WE likewise find the aggravating (qualifying) circumstance of
evident premeditation not sufficiently established. The only
evidence presented to prove this circumstance was the testimony of
Crisanto Ibañez, 37 years old, married, resident of Maitum, South
Cotabato, and a laborer of Fleischer and Company, which may be
summarized as follows:
16
On August 20, 1968 (two days before the incident) at about
7:00 A.M., he was drying corn near the house of Mr. and Mrs.
Mamerto Narvaez at the crossing, Maitum, South Cotabato,
Page
when the accused and his wife talked to him. Mrs. Narvaez
asked him to help them, as he was working in the hacienda.
She further told him that if they fenced their house, there is a
head that will be broken. Mamerto Narvaez added 'Noy, it is
better that you will tell Mr. Fleischer because there will be
nobody who will break his head but I will be the one.' He
relayed this to Mr. Flaviano Rubia, but the latter told him not
to believe as they were only Idle threats designed to get him
out of the hacienda (pp. 297-303, t.s.n., Vol. 2).
This single evidence is not sufficient to warrant appreciation of the
aggravating circumstance of evident premeditation. As WE have
consistently held, there must be "direct evidence of the planning or
preparation to kill the victim, .... it is not enough that premeditation
be suspected or surmised, but the criminal intent must be evidenced
by notorious outward acts evincing the determination to commit
the crime" (People vs. Ordioles, 42 SCRA 238). Besides, there
must be a "showing" that the accused premeditated the killing; that
the culprit clung to their (his) premeditated act; and that there was
sufficient interval between the premeditation and the execution of
the crime to allow them (him) to reflect upon the consequences of
the act" (People vs. Gida, 102 SCRA 70).
Moreover, the obvious bias of witness Crisanto Ibañez, as a laborer
of the deceased Davis Fleischer, neutralizes his credibility.
Since in the case at bar, there was no direct evidence of the
planning or preparation to kill the victims nor that the accused
premeditated the killing, and clung to his premeditated act, the trial
court's conclusion as to the presence of such circumstance may not
be endorsed.
Evident premeditation is further negated by appellant pleading with
the victims to stop the fencing and destroying his house and to talk
things over just before the shooting.
But the trial court has properly appreciated the presence of the
mitigating circumstance of voluntary surrender, it appearing that
appellant surrendered to the authorities soon after the shooting.
Likewise, We find that passion and obfuscation attended the
commission of the crime. The appellant awoke to find his house
being damaged and its accessibility to the highway as well as of his
rice mill bodega being closed. Not only was his house being
unlawfully violated; his business was also in danger of closing
down for lack of access to the highway. These circumstances,
coming so near to the time when his first house was dismantled,
thus forcing him to transfer to his only remaining house, must have
so aggravated his obfuscation that he lost momentarily all reason
causing him to reach for his shotgun and fire at the victims in
defense of his rights. Considering the antecedent facts of this case,
where appellant had thirty years earlier migrated to this so-called
"land of promise" with dreams and hopes of relative prosperity and
tranquility, only to find his castle crumbling at the hands of the
deceased, his dispassionate plea going unheeded-all these could be
too much for any man-he should be credited with this mitigating
circumstance.
Consequently, appellant is guilty of two crimes of homicide only,
the killing not being attended by any qualifying nor aggravating
circumstance, but extenuated by the privileged mitigating
circumstance of incomplete defense-in view of the presence of
unlawful aggression on the part of the victims and lack of sufficient
provocation on the part of the appellant-and by two generic
mitigating circumstance of voluntary surrender and passion and
obfuscation.
Article 249 of the Revised Penal Code prescribes the penalty for
homicide as reclusion temporal. Pursuant to Article 69, supra, the
penalty lower by one or two degrees shall be imposed if the deed is
not wholly excusable by reason of the lack of some of the
conditions required to justify the same. Considering that the
majority of the requirements for defense of property are present,
the penalty may be lowered by two degrees, i.e., to prision
correccional And under paragraph 5 of Article 64, the same may
further be reduced by one degree, i.e., arresto mayor, because of
the presence of two mitigating circumstances and no aggravating
circumstance.

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

of Zulueta vs. Pan American World Airways (43 SCRA 397), the
award for moral damages was reduced because the plaintiff
contributed to the gravity of defendant's reaction. In the case at bar,
the victims not only contributed but they actually provoked the
attack by damaging appellant's properties and business.
Considering appellant's standing in the community, being married
to a municipal councilor, the victims' actuations were apparently
designed to humiliate him and destroy his reputation. The records
disclose that his wife, councilor Feliza Narvaez, was also charged VICKY C. TY vs. PEOPLE OF THE PHILIPPINES
in these two cases and detained without bail despite the absence of
evidence linking her to the killings. She was dropped as a
defendant only upon motion of the prosecution dated October 31,
1968. (p. 14, CFI rec. of Crim. Case No. 1816), but acted upon on
November 4, 1968 (p. 58, CFI rec. of Criminal Case No. 1815). Petitioner Vicky C. Ty ("Ty") filed the instant Petition for
Review under Rule 45, seeking to set aside the Decision1 of the
Court of Appeals Eighth Division in CA-G.R. CR No. 20995,
Moreover, these cases arose out of an inordinate desire on the part
promulgated on 31 July 2001. The Decisionaffirmed with
of Fleischer and Company, despite its extensive landholdings in a
modification the judgment of the Regional Trial Court (RTC) of
Central Visayan province, to extend its accumulation of public
Manila, Branch 19, dated 21 April 1997, finding her guilty of seven
lands to the resettlement areas of Cotabato. Since it had the
(7) counts of violation of Batas Pambansa Blg. 222 (B.P. 22),
capability-financial and otherwise-to carry out its land
otherwise known as the Bouncing Checks Law.
accumulation scheme, the lowly settlers, who uprooted their
families from their native soil in Luzon to take advantage of the
government's resettlement program, but had no sufficient means to This case stemmed from the filing of seven (7) Informations for
fight the big landowners, were the ones prejudiced. Thus, the moral violation of B.P. 22 against Ty before the RTC of Manila.
and material suffering of appellant and his family deserves The Informations were docketed as Criminal Cases No. 93-130459
leniency as to his civil liability. to No. 93-130465. The accusatory portion of the Information in
Criminal Case No. 93-130465 reads as follows:
Furthermore, Article 39 of the Revised Penal Code requires a
person convicted of prision correccional or arrests mayor and fine That on or about May 30, 1993, in the City of Manila,
who has no property with which to meet his civil liabilities to serve Philippines, the said accused did then and there willfully,
a subsidiary imprisonment at the rate of one (1) day for each P unlawfully and feloniously make or draw and issue to
2.50. However, the amendment introduced by Republic Act No. Manila Doctors’ Hospital to apply on account or for
5465 on April 21, 1969 made the provisions of Art. 39 applicable value to Editha L. Vecino Check No. Metrobank 487712
to fines only and not to reparation of the damage caused, dated May 30, 1993 payable to Manila Doctors Hospital
indemnification of consequential damages and costs of in the amount of ₱30,000.00, said accused well knowing
proceedings. Considering that Republic Act 5465 is favorable to that at the time of issue she did not have sufficient funds
the accused who is not a habitual delinquent, it may be given in or credit with the drawee bank for payment of such
retroactive effect pursuant to Article 22 of the Revised Penal Code. check in full upon its presentment, which check when
presented for payment within ninety (90) days from the
date hereof, was subsequently dishonored by the drawee
WHEREFORE, FINDING APPELLANT GUILTY BEYOND
bank for "Account Closed" and despite receipt of notice
REASONABLE DOUBT OF ONLY TWO (2) HOMICIDES,
of such dishonor, said accused failed to pay said Manila
MITIGATED BY THE PRIVILEGED EXTENUATING
Doctors Hospital the amount of the check or to make
CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE AS
arrangement for full payment of the same within five (5)
WELL AS BY TWO (2) GENERIC MITIGATING
banking days after receiving said notice.
CIRCUMSTANCES OF VOLUNTARY SURRENDER AND
OBFUSCATION, WITHOUT ANY AGGRAVATING
CIRCUMSTANCE, APPELLANT IS HEREBY SENTENCED TO Contrary to law.3
SUFFER AN IMPRISONMENT OF FOUR (4) MONTHS OF
ARRESTO MAYOR, TO INDEMNIFY EACH GROUP OF The other Informations are similarly worded except for the number
HEIRS OF DAVIS FLEISCHER AND OF FLAVIANO RUBIA IN of the checks and dates of issue. The data are hereunder itemized as
THE SUM OF FOUR THOUSAND (P 4,000.00) PESOS, follows:
WITHOUT SUBSIDIARY IMPRISONMENT AND WITHOUT
ANY AWARD FOR MORAL DAMAGES AND ATTORNEY'S
FEES. xxx

CONSIDERING THAT APPELLANT HAS BEEN UNDER The cases were consolidated and jointly tried. At her arraignment,
DETENTION FOR ALMOST FOURTEEN (14) YEARS NOW Ty pleaded not guilty.5
SINCE HIS VOLUNTARY SURRENDER ON AUGUST 22,1968,
17

HIS IMMEDIATE RELEASE IS HEREBY ORDERED. NO The evidence for the prosecution shows that Ty’s mother Chua Lao
COSTS. So Un was confined at the Manila Doctors’ Hospital (hospital)
from 30 October 1990 until 4 June 1992. Being the patient’s
Page

daughter, Ty signed the "Acknowledgment of Responsibility for

Payment" in the Contract of Admission dated 30 October 1990. 6 As
of 4 June 1992, the Statement of Account7 shows the total liability
of the mother in the amount of ₱657,182.40. Ty’s sister, Judy Chua,
was also confined at the hospital from 13 May 1991 until 2 May
1992, incurring hospital bills in the amount of ₱418,410.55.8 The
total hospital bills of the two patients amounted to ₱1,075,592.95.
On 5 June 1992, Ty executed a promissory note wherein she
assumed payment of the obligation in installments. 9 To assure
payment of the obligation, she drew several postdated checks
against Metrobank payable to the hospital. The seven (7) checks,
each covering the amount of ₱30,000.00, were all deposited on
their due dates. But they were all dishonored by the drawee bank
and returned unpaid to the hospital due to insufficiency of funds,
with the "Account Closed" advice. Soon thereafter, the
complainant hospital sent demand letters to Ty by registered mail.
As the demand letters were not heeded, complainant filed the seven
(7) Informations subject of the instant case.10
For her defense, Ty claimed that she issued the checks because of
"an uncontrollable fear of a greater injury." She averred that she
was forced to issue the checks to obtain release for her mother
whom the hospital inhumanely and harshly treated and would not
discharge unless the hospital bills are paid. She alleged that her
mother was deprived of room facilities, such as the air-condition
unit, refrigerator and television set, and subject to inconveniences
such as the cutting off of the telephone line, late delivery of her
mother’s food and refusal to change the latter’s gown and
bedsheets. She also bewailed the hospital’s suspending medical
treatment of her mother. The "debasing treatment," she pointed out,
so affected her mother’s mental, psychological and physical health
that the latter contemplated suicide if she would not be discharged
from the hospital. Fearing the worst for her mother, and to comply
with the demands of the hospital, Ty was compelled to sign a
promissory note, open an account with Metrobank and issue the
checks to effect her mother’s immediate discharge. 11
Giving full faith and credence to the evidence offered by the
prosecution, the trial court found that Ty issued the checks subject
of the case in payment of the hospital bills of her mother and
rejected the theory of the defense.12Thus, on 21 April 1997, the trial
court rendered a Decision finding Ty guilty of seven (7) counts of
violation of B.P. 22 and sentencing her to a prison term. The
dispositive part of the Decision reads:
CONSEQUENTLY, the accused Vicky C. Ty, for her acts of
issuing seven (7) checks in payment of a valid obligation,
which turned unfounded on their respective dates of maturity, is
found guilty of seven (7) counts of violations of Batas
Pambansa Blg. 22, and is hereby sentenced to suffer the penalty
of imprisonment of SIX MONTHS per count or a total of forty-
two (42) months. SO ORDERED.13
Ty interposed an appeal from the Decision of the trial court. Before
the Court of Appeals, Ty reiterated her defense that she issued the
checks "under the impulse of an uncontrollable fear of a greater
injury or in avoidance of a greater evil or injury." She also argued
that the trial court erred in finding her guilty when evidence
showed there was absence of valuable consideration for the
issuance of the checks and the payee had knowledge of the
insufficiency of funds in the account. She protested that the trial
court should not have applied the law mechanically, without due
regard to the principles of justice and equity. 14
In its Decision dated 31 July 2001, the appellate court affirmed the
judgment of the trial court with modification. It set aside the
penalty of imprisonment and instead sentenced Ty "to pay a fine of
sixty thousand pesos (₱60,000.00) equivalent to double the amount
18
of the check, in each case."15
Page
In its assailed Decision, the Court of Appeals rejected Ty’s
defenses of involuntariness in the issuance of the checks and the
hospital’s knowledge of her checking account’s lack of funds. It
held that B.P. 22 makes the mere act of issuing a worthless check
punishable as a special offense, it being a malum prohibitum. What
the law punishes is the issuance of a bouncing check and not the
purpose for which it was issued nor the terms and conditions
relating to its issuance.16
Neither was the Court of Appeals convinced that there was no
valuable consideration for the issuance of the checks as they were
issued in payment of the hospital bills of Ty’s mother.17
In sentencing Ty to pay a fine instead of a prison term, the
appellate court applied the case of Vaca v. Court of
Appeals18 wherein this Court declared that in determining the
penalty imposed for violation of B.P. 22, the philosophy underlying
the Indeterminate Sentence Law should be observed, i.e.,
redeeming valuable human material and preventing unnecessary
deprivation of personal liberty and economic usefulness, with due
regard to the protection of the social order.19
Petitioner now comes to this Court basically alleging the same
issues raised before the Court of Appeals. More specifically, she
ascribed errors to the appellate court based on the following
grounds:
A. THERE IS CLEAR AND CONVINCING EVIDENCE
THAT PETITIONER WAS FORCED TO OR COMPELLED IN
THE OPENING OF THE ACCOUNT AND THE ISSUANCE
OF THE SUBJECT CHECKS.
B. THE CHECKS WERE ISSUED UNDER THE IMPULSE OF
AN UNCONTROLLABLE FEAR OF A GREATER INJURY OR
IN AVOIDANCE OF A GREATER EVIL OR INJURY.
C. THE EVIDENCE ON RECORD PATENTLY
SHOW[S] ABSENCE OF VALUABLE CONSIDERATION IN
THE ISSUANCE OF THE SUBJECT CHECKS.
D. IT IS AN UNDISPUTED FACT THAT THE PAYEE
OF THE CHECKS WAS FULLY AWARE OF THE LACK OF
FUNDS IN THE ACCOUNT.
E. THE HONORABLE COURT OF APPEALS, AS WELL AS
THE HONORABLE TRIAL COURT [,] SHOULD NOT HAVE
APPLIED CRIMINAL LAW MECHANICALLY, WITHOUT
DUE REGARD TO THE PRINCIPLES OF JUSTICE AND
EQUITY.
In its Memorandum,20 the Office of the Solicitor General (OSG),
citing jurisprudence, contends that a check issued as an evidence of
debt, though not intended to be presented for payment, has the
same effect as an ordinary check; hence, it falls within the ambit of
B.P. 22. And when a check is presented for payment, the drawee
bank will generally accept the same, regardless of whether it was
issued in payment of an obligation or merely to guarantee said
obligation. What the law punishes is the issuance of a bouncing
check, not the purpose for which it was issued nor the terms and
conditions relating to its issuance. The mere act of issuing a
worthless check is malum prohibitum.21
We find the petition to be without merit and accordingly sustain
Ty’s conviction.
Well-settled is the rule that the factual findings and conclusions of
the trial court and the Court of Appeals are entitled to great weight
and respect, and will not be disturbed on appeal in the absence of
any clear showing that the trial court overlooked certain facts or
circumstances which would substantially affect the disposition of
the case.22Jurisdiction of this Court over cases elevated from the
Court of Appeals is limited to reviewing or revising errors of law
ascribed to the Court of Appeals whose factual findings are
conclusive, and carry even more weight when said court affirms
the findings of the trial court, absent any showing that the findings
are totally devoid of support in the record or that they are so
glaringly erroneous as to constitute serious abuse of discretion. 23
In the instant case, the Court discerns no compelling reason to
reverse the factual findings arrived at by the trial court and
affirmed by the Court of Appeals.
Ty does not deny having issued the seven (7) checks subject of this
case. She, however, claims that the issuance of the checks was
under the impulse of an uncontrollable fear of a greater injury or in
avoidance of a greater evil or injury. She would also have the Court
believe that there was no valuable consideration in the issuance of
the checks.
However, except for the defense’s claim of uncontrollable fear of a
greater injury or avoidance of a greater evil or injury, all the
grounds raised involve factual issues which are best determined by
the trial court. And, as previously intimated, the trial court had in
fact discarded the theory of the defense and rendered judgment
accordingly.
Moreover, these arguments are a mere rehash of arguments
unsuccessfully raised before the trial court and the Court of
Appeals. They likewise put to issue factual questions already
passed upon twice below, rather than questions of law appropriate
for review under a Rule 45 petition.
The only question of law raised--whether the defense of
uncontrollable fear is tenable to warrant her exemption from
criminal liability--has to be resolved in the negative. For this
exempting circumstance to be invoked successfully, the following
requisites must concur: (1) existence of an uncontrollable fear; (2)
the fear must be real and imminent; and (3) the fear of an injury is
greater than or at least equal to that committed. 24
It must appear that the threat that caused the uncontrollable fear is
of such gravity and imminence that the ordinary man would have
succumbed to it.25 It should be based on a real, imminent or
reasonable fear for one’s life or limb.26 A mere threat of a future
injury is not enough. It should not be speculative, fanciful, or
remote.27 A person invoking uncontrollable fear must show
therefore that the compulsion was such that it reduced him to a
mere instrument acting not only without will but against his will as
well.28 It must be of such character as to leave no opportunity to the
accused for escape.29
In this case, far from it, the fear, if any, harbored by Ty was not real
and imminent. Ty claims that she was compelled to issue the
checks--a condition the hospital allegedly demanded of her before
her mother could be discharged--for fear that her mother’s health
might deteriorate further due to the inhumane treatment of the
hospital or worse, her mother might commit suicide. This is
speculative fear; it is not the uncontrollable fear contemplated by
law.
To begin with, there was no showing that the mother’s illness was
so life-threatening such that her continued stay in the hospital
suffering all its alleged unethical treatment would induce a well-
grounded apprehension of her death. Secondly, it is not the law’s
intent to say that any fear exempts one from criminal liability much
less petitioner’s flimsy fear that her mother might commit suicide.
In other words, the fear she invokes was not impending or
insuperable as to deprive her of all volition and to make her a mere
instrument without will, moved exclusively by the hospital’s
threats or demands.
19
Ty has also failed to convince the Court that she was left with no
Page
choice but to commit a crime. She did not take advantage of the
many opportunities available to her to avoid committing one. By
her very own words, she admitted that the collateral or security the
hospital required prior to the discharge of her mother may be in the
form of postdated checks or jewelry.30 And if indeed she was
coerced to open an account with the bank and issue the checks, she
had all the opportunity to leave the scene to avoid involvement.
Moreover, petitioner had sufficient knowledge that the issuance of
checks without funds may result in a violation of B.P. 22. She even
testified that her counsel advised her not to open a current account
nor issue postdated checks "because the moment I will not have
funds it will be a big problem."31 Besides, apart from petitioner’s
bare assertion, the record is bereft of any evidence to corroborate
and bolster her claim that she was compelled or coerced to
cooperate with and give in to the hospital’s demands.
Ty likewise suggests in the prefatory statement of
her Petition and Memorandum that the justifying circumstance of
state of necessity under par. 4, Art. 11 of the Revised Penal Code
may find application in this case.
We do not agree. The law prescribes the presence of three
requisites to exempt the actor from liability under this paragraph:
(1) that the evil sought to be avoided actually exists; (2) that the
injury feared be greater than the one done to avoid it; (3) that there
be no other practical and less harmful means of preventing it. 32
In the instant case, the evil sought to be avoided is merely expected
or anticipated. If the evil sought to be avoided is merely expected
or anticipated or may happen in the future, this defense is not
applicable.33 Ty could have taken advantage of an available option
to avoid committing a crime. By her own admission, she had the
choice to give jewelry or other forms of security instead of
postdated checks to secure her obligation.
Moreover, for the defense of state of necessity to be availing, the
greater injury feared should not have been brought about by the
negligence or imprudence, more so, the willful inaction of the
actor.34 In this case, the issuance of the bounced checks was
brought about by Ty’s own failure to pay her mother’s hospital
bills.
The Court also thinks it rather odd that Ty has chosen the
exempting circumstance of uncontrollable fear and the justifying
circumstance of state of necessity to absolve her of liability. It
would not have been half as bizarre had Ty been able to prove that
the issuance of the bounced checks was done without her full
volition. Under the circumstances, however, it is quite clear that
neither uncontrollable fear nor avoidance of a greater evil or injury
prompted the issuance of the bounced checks.
Parenthetically, the findings of fact in the Decision of the trial court
in the Civil Case35 for damages filed by Ty’s mother against the
hospital is wholly irrelevant for purposes of disposing the case at
bench. While the findings therein may establish a claim for
damages which, we may add, need only be supported by a
preponderance of evidence, it does not necessarily engender
reasonable doubt as to free Ty from liability.
As to the issue of consideration, it is presumed, upon issuance of
the checks, in the absence of evidence to the contrary, that the same
was issued for valuable consideration.36 Section 2437 of the
Negotiable Instruments Law creates a presumption that every party
to an instrument acquired the same for a consideration 38 or for
value.39 In alleging otherwise, Ty has the onus to prove that the
checks were issued without consideration. She must present
convincing evidence to overthrow the presumption.
A scrutiny of the records reveals that petitioner failed to discharge
her burden of proof. "Valuable consideration may in general terms,
be said to consist either in some right, interest, profit, or benefit
accruing to the party who makes the contract, or some forbearance,
detriment, loss or some responsibility, to act, or labor, or service
given, suffered or undertaken by the other aide. Simply defined,
valuable consideration means an obligation to give, to do, or not to
do in favor of the party who makes the contract, such as the maker
or indorser."40
In this case, Ty’s mother and sister availed of the services and the
facilities of the hospital. For the care given to her kin, Ty had a
legitimate obligation to pay the hospital by virtue of her
relationship with them and by force of her signature on her
mother’s Contract of Admission acknowledging responsibility for
payment, and on the promissory note she executed in favor of the
hospital.
Anent Ty’s claim that the obligation to pay the hospital bills was
not her personal obligation because she was not the patient, and
therefore there was no consideration for the checks, the case
of Bridges v. Vann, et al.41 tells us that "it is no defense to an action
on a promissory note for the maker to say that there was no
consideration which was beneficial to him personally; it is
sufficient if the consideration was a benefit conferred upon a third
person, or a detriment suffered by the promisee, at the instance of
the promissor. It is enough if the obligee foregoes some right or
privilege or suffers some detriment and the release and
extinguishment of the original obligation of George Vann, Sr., for
that of appellants meets the requirement. Appellee accepted one
debtor in place of another and gave up a valid, subsisting
obligation for the note executed by the appellants. This, of itself, is
sufficient consideration for the new notes."
At any rate, the law punishes the mere act of issuing a bouncing
check, not the purpose for which it was issued nor the terms and
conditions relating to its issuance.42 B.P. 22 does not make any
distinction as to whether the checks within its contemplation are
issued in payment of an obligation or to merely guarantee the
obligation.43 The thrust of the law is to prohibit the making of
worthless checks and putting them into circulation. 44 As this Court
held in Lim v. People of the Philippines,45 "what is primordial is
that such issued checks were worthless and the fact of its
worthlessness is known to the appellant at the time of their
issuance, a required element under B.P. Blg. 22."
The law itself creates a prima facie presumption of knowledge of
insufficiency of funds. Section 2 of B.P. 22 provides:
Section 2. Evidence of knowledge of insufficient funds. - The
making, drawing and issuance of a check payment of which is
refused by the drawee bank because of insufficient funds in or
credit with such bank, when presented within ninety (90) days
from the date of the check, shall be prima facie evidence of
knowledge of such insufficiency of funds or credit unless such
maker or drawer pays the holder thereof the amount due thereon,
or makes arrangements for payment in full by the drawee of such
check within five (5) banking days after receiving notice that
such check has not been paid by the drawee.
Such knowledge is legally presumed from the dishonor of the
checks for insufficiency of funds.46 If not rebutted, it suffices to
sustain a conviction.47
Petitioner likewise opines that the payee was aware of the fact that
she did not have sufficient funds with the drawee bank and such
knowledge necessarily exonerates her liability.
20
The knowledge of the payee of the insufficiency or lack of funds of
the drawer with the drawee bank is immaterial as deceit is not an
Page
essential element of an offense penalized by B.P. 22. The gravamen
of the offense is the issuance of a bad check, hence, malice and
intent in the issuance thereof is inconsequential. 48
In addition, Ty invokes our ruling in Magno v. Court of
Appeals49 wherein this Court inquired into the true nature of
transaction between the drawer and the payee and finally acquitted
the accused, to persuade the Court that the circumstances
surrounding her case deserve special attention and do not warrant a
strict and mechanical application of the law.
Petitioner’s reliance on the case is misplaced. The material
operative facts therein obtaining are different from those
established in the instant petition. In the 1992 case, the bounced
checks were issued to cover a "warranty deposit" in a lease
contract, where the lessor-supplier was also the financier of the
deposit. It was a modus operandiwhereby the supplier was able to
sell or lease the goods while privately financing those in desperate
need so they may be accommodated. The maker of the check thus
became an unwilling victim of a lease agreement under the guise of
a lease-purchase agreement. The maker did not benefit at all from
the deposit, since the checks were used as collateral for an
accommodation and not to cover the receipt of an actual account or
credit for value.
In the case at bar, the checks were issued to cover the receipt of an
actual "account or for value." Substantial evidence, as found by the
trial court and Court of Appeals, has established that the checks
were issued in payment of the hospital bills of Ty’s mother.
Finally, we agree with the Court of Appeals in deleting the penalty
of imprisonment, absent any proof that petitioner was not a first-
time offender nor that she acted in bad faith. Administrative
Circular 12-2000,50 adopting the rulings in Vaca v. Court of
Appeals51 and Lim v. People,52 authorizes the non-imposition of the
penalty of imprisonment in B.P. 22 cases subject to certain
conditions. However, the Court resolves to modify the penalty in
view of Administrative Circular 13-200153 which clarified
Administrative 12-2000. It is stated therein:
The clear tenor and intention of Administrative Circular
No. 12-2000 is not to remove imprisonment as an
alternative penalty, but to lay down a rule of preference
in the application of the penalties provided for in B.P.
Blg. 22.
Thus, Administrative Circular 12-2000 establishes a rule
of preference in the application of the penal provisions of
B.P. Blg. 22 such that where the circumstances of both
the offense and the offender clearly indicate good faith or
a clear mistake of fact without taint of negligence, the
imposition of a fine alone should be considered as the
more appropriate penalty. Needless to say, the
determination of whether circumstances warrant the
imposition of a fine alone rests solely upon the Judge.
Should the judge decide that imprisonment is the more
appropriate penalty, Administrative Circular No. 12-2000
ought not be deemed a hindrance.
It is therefore understood that: (1) Administrative
Circular 12-2000 does not remove imprisonment as an
alternative penalty for violations of B.P. 22; (2) the
judges concerned may, in the exercise of sound
discretion, and taking into consideration the peculiar
circumstances of each case, determine whether the
imposition of a fine alone would best serve the interests
of justice, or whether forbearing to impose imprisonment
would depreciate the seriousness of the offense, work
violence on the social order, or otherwise be contrary to
the imperatives of justice; (3) should only a fine be
imposed and the accused unable to pay the fine, there is
 no legal obstacle to the application of the Revised Penal
Code provisions on subsidiary imprisonment.54
WHEREFORE, the instant Petition is DENIED and the
assailed Decision of the Court of Appeals, dated 31 July 2001,
finding petitioner Vicky C. Ty GUILTY of violating Batas
Pambansa Bilang 22 is AFFIRMED with MODIFICATIONS.
Petitioner Vicky C. Ty is ORDERED to pay a FINE equivalent to
double the amount of each dishonored check subject of the seven
cases at bar with subsidiary imprisonment in case of insolvency in
accordance with Article 39 of the Revised Penal Code. She is also
ordered to pay private complainant, Manila Doctors’ Hospital, the
amount of Two Hundred Ten Thousand Pesos (₱210,000.00)
representing the total amount of the dishonored checks. Costs
against the petitioner.
PEOPLE OF THE PHILIPPINES vs. JESUS DOMINGO
Appellant Jesus Domingo assails the Decision1 of the Court of
Appeals dated 30 April 2008 in CA-G.R. CR No. 30511, modifying
the Decision2 dated 13 November 2006 of Branch 13 of the
Regional Trial Court (RTC) of Malolos, Bulacan. The Court of
Appeals found appellant guilty beyond reasonable doubt of murder
in Criminal Cases No. 1496-M-2000 and No. 1497-M-2000,
attempted murder in Criminal Cases No. 1498-M-2000 and No.
1501-M-2000, frustrated murder in Criminal Case No. 1500-M-
2000, and frustrated homicide in Criminal Case No. 1499-M-2000.
On 7 March 2003, six Informations3 were filed before the RTC
charging appellant with the following offenses:
Criminal Case No. 1496-M-2000 for Murder
"That on or about the 29th day of March 2000, in the municipality
of San Rafael, Province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused,
armed with a kitchen knife and screw driver and with intent to kill
one Marvin G. Indon, with evident premeditation, treachery and
taking advantage of superior strength, did then and there willfully,
unlawfully and feloniously attack, assault, stab and hit with the
kitchen knife and screw driver said Marvin G. Indon, hitting him
on his body thereby inflicting thereon mortal wounds which
directly caused his death."
Criminal Case No. 1497-M-2000 for Murder
"That on or about the 29th day of March 2000, in the municipality
of San Rafael, Province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused,
armed with a kitchen knife and screw driver and with intent to kill
one Melissa G. Indon, with evident premeditation, treachery and
taking advantage of superior strength, did then and there willfully,
unlawfully and feloniously attack, assault, stab and hit with the
kitchen knife and screw driver said Melissa G. Indon, hitting her
on different parts of her body thereby inflicting thereon mortal
wounds which directly caused her death."
Criminal Case No. 1498-M-2000 for Frustrated Murder
"That on or about the 29th day of March 2000, in the municipality
of San Rafael, Province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused,
armed with kitchen knife and screw driver, did then and there
21
willfully, unlawfully and feloniously, with evident premeditation
and treachery attack, assault and hit with the said screw driver one
Michelle G. Indon, a minor of 9 years old, hitting her on her back
Page
and buttocks, thereby inflicting on her serious physical injuries
which ordinarily would have caused the death of the said Michelle
G. Indon, thus performing all the acts of execution which should
have produced the crime of murder as a consequence, but
nevertheless did not produce it by reason of causes independent of
his will, this is, by the timely and able medical assistance rendered
to said Michelle G. Indon."
Criminal Case No. 1499-M-2000 for Frustrated Murder
"That on or about the 29th day of March 2000, in the municipality
of San Rafael, Province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused,
armed with a kitchen knife and screw driver, did then and there
willfully, unlawfully and feloniously, with evident premeditation
and treachery, attack, assault, stab and hit with the said kitchen
knife and screw driver one Ronaldo Galvez, hitting him on
different part of his body, thereby inflicting on him serious physical
injuries which ordinarily would have caused the death of Ronaldo
Galvez, thus performing all the acts of execution which should
have produced the crime of murder as a consequence, but
nevertheless did not produce it by reason of causes independent of
his will, that is, by the timely and able medical assistance rendered
to said Ronaldo Galvez."
Criminal Case No. 1500-M-2000 for Frustrated Murder
"That on or about the 29th day of March 2000, in the municipality
of San Rafael, Province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused,
armed with a kitchen knife and screw driver, did then and there
willfully, unlawfully and feloniously, with evident premeditation
and treachery, attack, assault, stab and hit with the said kitchen
knife and screw driver one Raquel Gatpandan Indon, hitting her on
the different parts of her body, thereby inflicting on her serious
physical injuries which ordinarily would have caused the death of
the said Raquel Gatpandan Indon, thus performing all the acts of
execution which should have produced the crime of murder as a
consequence, but nevertheless did not produce it by reason of
causes independent of his will, that is, by the timely and able
medical assistance rendered to said Raquel Gatpandan Indon."
Criminal Case No. 1501-M-2000 for Attempted Murder
"That on or about the 29th day of March 2000, in the municipality
of San Rafael, Province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused,
armed with a kettle and with intent to kill one Jeffer G. Indon, did
then and there willfully, unlawfully and feloniously, with evident
premeditation and treachery, commence the commission of murder
directly by overt acts, that is by attacking, assaulting, and hitting
the said Jeffer G. Indon, a 2 year old boy, with the kettle, hitting the
latter on his head, thereby inflicting upon him physical injuries and
if the accused was not able to accomplish his purpose, that is to kill
the said Jeffer G. Indon, it was not because of his voluntary
desistance but due to the timely intervention of third persons."
On 7 September 2000, appellant, with the assistance of counsel,
was arraigned and he entered separate pleas of "Not Guilty" to the
crimes charged. Thereafter, pre-trial conference was held, and trial
ensued accordingly.4
Evidence for the prosecution consisted of the testimonies of
complainants Raquel Indon, Jeffer Indon, and Michelle Indon; Dr.
Jacinto Caluag; Police Officer (PO) 3 Asher Villegas and PO2
Rogelio Santos.
Complainant Raquel Indon testified that between 1:00 a.m. and
2:00 a.m. of 29 March 2000, she and her minor children Melissa,
Michelle, Marvin and Jeffer were sleeping inside their house in
Caingin, San Rafael, Bulacan, when she was awakened by the
sound of appellant kicking their door open. Raquel narrated that
she immediately recognized the accused, since the kitchen light
illuminated his face. Armed with a screwdriver and a kitchen knife,
appellant cut the cord of the mosquito net and repeatedly stabbed
her, using the six-inch screwdriver, and hit her right arm three
times. She screamed and was heard by her sister-in-law, whose
house was contiguous to theirs. When her sister-in-law asked her
for the identity of the assailant, she immediately identified herein
appellant as "Doser," a name by which he is known in the
community. Appellant was angered by her reply and said, "Anong
Doser?" and thereafter pulled a kitchen knife from his right side
and stabbed her on the stomach. When she tried to escape from the
room, four-year-old Marvin rushed towards her. She then grabbed
him and ran towards the gate. However, before reaching the gate,
she fell down and appellant stabbed her right leg. The appellant
then proceeded to stab Marvin, hitting the latter twice on the arm
and twice on his left chest. Marvin died on 3 April 2000 as a result
of these injuries. After stabbing Marvin, appellant returned back to
the house, towards Raquel’s two daughters Michelle and Melissa.
When Raquel pleaded that the appellant spare her daughters’ lives,
he retorted: "Ngayon pa, nagawa ko na." Melissa died because of
the stab wounds that the appellant inflicted on her; while Michelle,
who was able to hide under the papag merely sustained serious
physical injuries. The appellant also attacked two-year-old Jeffer
by striking him on the head with the screwdriver, but the latter
managed to run to the house of Raquel’s sister-in-law. Raquel got
up and ran for help, but the appellant followed her. Their neighbor,
Ronaldo Galvez, came to their rescue and tried to subdue the
appellant. Raquel, thereafter, lost consciousness. She also relayed
that she was later informed that a struggle ensued between
appellant and Galvez. Appellant inflicted wounds on Galvez’s
upper left chest and arms, after which Galvez was able to hit
appellant with a piece of wood, which rendered the latter
unconscious. Raquel, Melissa, Marvin, Jeffer, Galvez and the
appellant were taken to the hospital.5
Raquel also testified that she spent ₱15,000.00 for the casket of
Melissa Indon, ₱27,000.00 for the burial expenses of Melissa
Indon and Marvin Indon, and approximately ₱30,000.00 for the
food served during their wake. She also stated that because of her
stab wounds, she spent ₱90,000.00 for hospitalization expenses
and medicines. However, the receipts were lost except those issued
by Sagrada Familia Hospital and Bulacan Provincial Hospital. 6
Jeffer Indon, who was five years old at the time he testified, stated
that the scar on his forehead was the result of the stab wound
inflicted by Doser. However, on cross-examination, he admitted
that he did not know who stabbed him.7
Michelle Indon identified the appellant as the man who stabbed her
mother, her brother Marvin and her sister Melissa. She testified that
the appellant stabbed her in the back once. Thereafter, she hid
under the papag. She related that she did not go to the hospital
anymore, because a certain Nanang Ella had already seen to her
stab wound.8
Dr. Jacinto Caluag stated under oath that he treated Raquel Indon
for multiple stab wounds. He testified that he also assisted in the
operation on Raquel to repair her liver and gallbladder, which were
damaged. He also disclosed that Raquel would have gone into
shock and died had she not been given medical attention. 9
Police officers Asher Villegas and Rogelio Santos testified that
they proceeded to the scene of the crime after the neighbors of the
complainant reported the incident. When they arrived at the crime
scene, appellant was already tied up. They took pictures of the
22
victims, while the kitchen knife and the screwdriver allegedly used
by the appellant were turned over to Police Officer Villegas. The
complainants and the appellant were then brought to the hospital.
Page
They recorded the incident in the Police Blotter and prepared the
statements of the witnesses. After the accused was treated for
injuries, he was brought to the police station and detained. When
asked why he committed the crime, accused denied knowledge of
what happened.101avvphi1.zw+
In an Order dated 10 July 2003, the trial court ordered that Ronaldo
Galvez’s testimony during his direct examination be stricken off
the records due to his absences on the days he was scheduled to be
cross-examined.11
The documentary evidence offered by the prosecution included the
following: (1) the sketches of Raquel Indon’s house, to prove that
the light from the kitchen allowed her to identify the appellant,
marked as Exhibits "A to A-6;" (2) the Death Certificate of Marvin
Indon marked as Exhibit "D;" (3) the Medico-Legal Certificates of
Raquel Indon, Marvin Indon, Jeffer Indon, and Ronaldo Galvez
marked as Exhibits "E," "F," "H," and "L," respectively; (4) the
Birth Certificates of Marvin Indon and Michelle Indon marked as
Exhibits "B" and "N;" (5) pictures of Melissa Indon’s lifeless body
marked as Exhibits "G" and "O;" (6) Sworn Statements of Ronaldo
Galvez and Michelle Indon marked as Exhibits "K" and "M;" (7)
Statement of Account of the Medical Expenses incurred by Raquel
Indon, issued by Sagrada Familia Hospital in the amount of
₱38,500.00, marked as Exhibit "I;" and (8) Statement of Account
of the Medical Expenses incurred by Raquel Indon, issued by the
Bulacan Provincial Hospital, in the amount of ₱7,843.00, marked
as Exhibit "J."12
In his defense, appellant testified that prior to the incident, he was
in good terms with the Indon family and that he had no record of
mental illness. However on 20 March 2000, he went to East
Avenue Medical Center for a medical check-up, and he was
advised to have an operation. He suffered from sleeplessness, lack
of appetite, and nervousness. Occasionally, a voice would tell him
to kill. He averred that when he regained his memory, one week
had already passed since the incidents, and he was already
detained. He only came to know of the incidents from his sister and
his children who visited him. On cross-examination he admitted
that when he regained his memory, he did not even ask the police
officers why he was incarcerated.13
Dr. Regienald Afroilan, a witness for the defense, also testified that
appellant was first brought to the National Center for Mental
Health (Center) in August 2004 for a psychiatric evaluation,
psychological examination and final testing to determine if he
could stand trial. Dr. Afroilan stated that based on his evaluation,
appellant suffered from Schizophrenia, a mental disorder
characterized by the presence of delusions and or hallucinations,
disorganized speech and behavior, poor impulse control and low
frustration tolerance. He could not find out when the appellant
started to suffer this illness, but the symptoms of Schizophrenia
which were manifested by the patient indicated that he suffered
from the illness six months before the Center examined the
appellant. On cross-examination, he clarified that the evaluation
finding that appellant suffered from Schizophrenia covered the
period when the appellant submitted himself to examination. 14
In a Decision dated 13 November 2006, the RTC decreed that the
appellant was guilty beyond reasonable doubt of homicide in
Criminal Cases No. 1496-M-00 and No. 1497-M-00, frustrated
homicide in Criminal Cases No. 1499-M-00 and No. 1500-M-00,
and attempted homicide in Criminal Cases No. 1498-M-00 and No.
1501-M-00. The RTC gave credence to the principal eyewitness,
Raquel Indon, whose testimony was corroborated by Michelle
Indon, regarding appellant’s attack on 29 March 2000. The trial
court found the appellant’s defense of insanity unmeritorious, since
what was presented was proof of appellant’s mental disorder that
existed five years after the incident, but not at the time the crimes
were committed. The RTC also considered it crucial that appellant
had the presence of mind to respond to Raquel Indon’s pleas that
her daughters be spared by saying, "Ngayon pa, nagawa ko na." It
also noted that based on the psychiatrist’s findings, the appellant
was competent to stand trial. However, the trial court declared that
there were no qualifying circumstances to support the charges of
Murder, Frustrated Murder or Attempted Murder.15 The dispositive
part of the Decision dated 13 November 2006 reads:
WHEREFORE, premises considered, the Court finds the accused
guilty beyond reasonable doubt of the crime of:
a) In Crim. Case No. 1496-M-00, Homicide, for the death of
Marvin G. Indon, minor and hereby sentences him to suffer
the indeterminate penalty of seven (7) years of prision mayor
as minimum to thirteen (13) years of reclusion temporal as
maximum; and to indemnify the heirs of the deceased in the
amount of ₱75,000.00.
b) In Crim. Case No. 1497-M-00, Homicide, for the death of
Melissa Indon, and hereby sentences him to suffer the
indeterminate penalty of seven (7) years of prision mayor as
minimum to thirteen (13) years of reclusion temporal as
maximum; and to indemnify the heirs of the deceased in the
amount of ₱75,000.00.
c) In Crim. Case No. 1498-M-00, Attempted Homicide, and
hereby sentences him to suffer the indeterminate penalty of
six (6) months of aresto mayor as minimum to five (5) years
of prision correccional as maximum; and to indemnify the
private complainant in the amount of ₱10,000.00.
d) In Crim. Case No. 1499-M-00, Frustrated Homicide, and
hereby sentences him to suffer the indeterminate penalty of
five (5) years of prision correccional as minimum to eight (8)
years of prision correccional as maximum; and to indemnify
the private complainant Ronaldo Galvez in the amount of
₱30,000.00.
e) In Crim. Case No. 1500-M-00, Frustrated Homicide, and
hereby sentences him to suffer the indeterminate penalty of
five (5) years of prision correccional as minimum to eight (8)
years of prision correccional as maximum; and to indemnify
the private complainant Raquel Gatpandan Indon in the
amount of ₱30,000.00. Likewise, accused is further directed
to pay to the private complainant herein the sum of
₱90,000.00 to cover hospitalization and medical expenses;
₱42,000.00 to cover the casket and burial expenses for
Melissa and Marvin, and ₱30,000.00 for food expenses, all by
way of actual damages.
f) In Crim. Case No. 1501-M-00, Attempted Homicide, and
hereby sentences him to suffer the indeterminate penalty of
six (6) months of aresto mayor as minimum to five (5) years
of prision correccional as maximum, and to indemnify the
private complainant in the amount of ₱10,000.00.16
The appellant filed an appeal before the Court of Appeals docketed
as CA-G.R. CR No. 30511, wherein he faulted the RTC for not
taking note of the inconsistencies in Raquel Indon’s testimony and
for not giving due weight to his defense of insanity.17 In a Decision
dated 30 April 2008, the appellate court adjudged that Raquel
Indon’s testimony was credible, and that the inconsistency pointed
out by appellant—whether or not Raquel was standing up or lying
down when appellant stabbed her legs—referred to minor details.
Moreover, insanity exempts the accused only when the finding of
mental disorder refers to appellant’s state of mind immediately
before or at the very moment of the commission of the crime. This
was not the case when appellant was first medically examined
23
more than four years after the commission of the crimes.
Appellant’s response to Raquel Indon’s pleas also proved that his
faculties of reasoning were unimpaired at the time of the attack
Page
against Raquel’s children.18
The Court of Appeals nevertheless modified the RTC’s Decision
dated 13 November 2006 and declared that the qualifying
circumstance of treachery, which was alleged in the six
Informations along with evident pre-meditation, was adequately
proven by the prosecution. Raquel Indon, Michelle Indon, Melissa
Indon, Marvin Indon, and Jeffer Indon were merely sleeping inside
their bedroom and had not even given the slightest provocation
when appellant attacked them without warning. Furthermore, the
killing of Marvin Indon and Melissa Indon, both minors who could
not be expected to defend themselves against an adult, was
considered treacherous, and would sustain a conviction for murder.
The penalties imposed were adjusted accordingly. Appellant’s
conviction for frustrated homicide in Criminal Case No. 1499-M-
2000 was affirmed, since prosecution failed to prove appellant’s
treachery or evident premeditation in his assault against Rolando
Galvez, who came to the scene of the crime to subdue the
appellant.19
The Court of Appeals also modified the trial court’s award of
damages. It reduced the civil indemnity of ₱75,000.00 awarded by
the trial court, occasioned by the deaths of Marvin Indon and
Melissa Indon, to ₱50,000.00 and awarded the heirs of each
murder victim moral damages in the amount of ₱50,000.00. The
awards for funeral expenses of ₱42,000.00 and food expenses of
₱30,000.00 were deleted by the appellate court for lack of
sufficient evidence to support the same. The appellate court
awarded Raquel Indon civil indemnity of ₱30,000.00 and moral
damages of ₱25,000.00, but reduced the actual damages of
₱90,000.00 awarded by the RTC to ₱46,343.00, in accordance with
the Statement of Accounts from Sagrada Familia Hospital and
Bulacan Provincial Hospital. It affirmed the trial court’s award for
moral damages of ₱10,000.00 in favor of Michelle Indon and
₱10,000.00 in favor of Jeffer Indon. Moral damages of ₱25,000.00
were also awarded by the appellate court in favor of Ronaldo
Galvez. 20
In the Decision dated 30 April 2008, the fallo reads:
WHEREFORE, the appealed Decision dated November 13, 2006
of the trial court is modified as follows:
1) In Criminal Case No. 1496-M-2000, accused-appellant Jesus
Domingo is convicted of the crime of murder and sentenced to
suffer the penalty of reclusion perpetua and to indemnify the
heirs of the deceased Marvin Indon the amounts of ₱50,000.00
as civil indemnity and ₱50,000.00 as moral damages. The trial
court’s award of funeral and food expenses of ₱42,000.00 and
₱30,000.00 respectively, are hereby deleted.
2) In Criminal Case No. 1497-M-2000, accused-appellant Jesus
Domingo is convicted of the crime of murder and is sentenced to
suffer the penalty of reclusion perpetua and to indemnify the
heirs of the deceased Melissa Indon the amounts of ₱50,000.00
as civil indemnity and ₱50,000.00 as moral damages.
3) In Criminal Case No. 1498-M-2000, accused-appellant Jose
Domingo is convicted of the crime of attempted murder and is
sentenced to an indeterminate penalty of six (6) years of prision
correccional maximum, as the minimum penalty, to ten (10)
years of prision mayor medium, as the maximum penalty and to
pay Michelle Indon ₱10,000.00 as moral damages.
4) In Criminal Case No. 1499-M-2000, accused-appellant Jose
Domingo is convicted of the crime of frustrated homicide and is
sentenced to an indeterminate penalty of five (5) years of prision
correccional as minimum to eight (8) years of prision mayor as
maximum and to pay Ronaldo Galvez ₱25,000.00 as moral
damages.
 5) In Criminal Case No. 1500-M-2000, accused-appellant Jose
Domingo is convicted of the crime of frustrated murder and is
sentenced to an indeterminate penalty of twelve (12) years of
prision mayor maximum, as the minimum penalty, to seventeen
(17) years and four (4) months of reclusion temporal medium, as
the maximum penalty and to pay Raquel Indon the amount of
₱30,000.00 as civil indemnity, ₱46, 343.00 as actual damages
and ₱25,000.00 as moral damages.
6) In Criminal Case No. 1501-M-2000, accused-appellant Jose
Domingo is convicted of the crime of attempted murder and is
sentenced to an indeterminate penalty of six (6) years of prision
correccional maximum, as the minimum penalty, to ten (10)
years of prision mayor medium, as the maximum penalty and to
pay Jefferson (sic) Indon ₱10,000.00 as moral damages.21
Hence, the present petition where the appellant reiterates the
assignment of errors that were raised before the Court of Appeals,
to wit:
I he or she was insane immediately before or at the moment the
THE TRIAL COURT GRAVELY ERRED IN FINDING THAT
THE GUILT OF THE ACCUSED-APPELLANT FOR THE
CRIMES CHARGED HAS BEEN PROVEN BEYOND
REASONABLE DOUBT; and
II
ASSUMING THAT THE ACCUSED-APPELLANT
COMMITTED THE CRIMES CHARGED, THE TRIAL COURT
GRAVELY ERRED IN NOT EXEMPTING HIM FROM
CRIMINAL LIABILITY IN VIEW OF HIS INSANITY AT THE
TIME OF THE COMMISSION OF THE SAME.22
This Court affirms the judgment of conviction.
The testimony of the principal witness of the prosecution, Raquel
Indon, is assailed by appellant for not being credible due to an
inconsistency in her testimony and a lack of conformity with the
experience of ordinary men.
Appellant refers to Raquel’s testimony during cross-examination
wherein she narrated that after the appellant entered her bedroom,
she screamed. Her sister-in-law, who lived next door, responded by
asking Raquel who her assailant was, and the latter identified the
appellant. Appellant claims that the conversation between Raquel
and her sister-in-law was contrary to the ordinary course of things,
and that the initial reaction of people in such a situation would be
to ask for help from other people in order to save those who are in
danger. Secondly, Raquel also testified during cross-examination
that the appellant stabbed the front of her legs when she fell down.
It is also argued that the appellant could not have stabbed the front
of her legs, since she would be lying on front of her legs when she
fell down.
This Court finds no merit in these arguments. To begin with, there
was nothing out of the ordinary as regards Raquel’s testimony on
these two matters. First, there was nothing unusual about the sister-
in-law’s query as to who was attacking Raquel. Considering that
the exchange merely consisted of this question and the reply to it, it
would not even be accurate to refer to it as a "conversation."
Secondly, it was not impossible for the appellant to stab the front of
Raquel’s legs, had her legs been positioned sideways when she fell.
But more importantly, these are peripheral details that do not affect
the substantial aspects of the incident. Raquel clearly and
positively testified that she was carrying her son Marvin when she
rushed to the gate and fell down, and the appellant stabbed her legs
24
and thereafter proceeded to stab Marvin who later died from the
stab wounds. Her testimony was supported by the Medico-Legal
Reports marked as Exhibits "E" and "F." Any inconsistencies in
Page
such peripheral details would not exculpate the appellant.
Appellant also asserts that he was insane or completely deprived of
intelligence during the commission of the alleged crimes, and
therefore should be exempted from criminal liability in accordance
with Article 12, Chapter 2 of the Revised Penal Code. 23 However,
this claim is not supported by evidence.
Appellant offers his uncorroborated testimony as the only proof
that he was insane at the time he committed the crime. He testified
that nine days before he committed the crime, he suffered from
lack of appetite, sleeplessness, and anxiety. In addition, he
allegedly heard voices ordering him to kill bad people. He claims
that he does not remember anything that happened on 29 March
2000, when the crimes were committed, and that he was already
detained when he became conscious of his surroundings.
The law presumes every man to be of sound mind. Otherwise
stated, the law presumes that all acts are voluntary, and that it is
improper to presume that acts are done unconsciously. Thus, a
person accused of a crime who pleads the exempting circumstance
of insanity has the burden of proving beyond reasonable doubt that
crime was committed.24
Insanity exists when there is a complete deprivation of intelligence
while committing the act; i.e., when the accused is deprived of
reason, he acts without the least discernment because there is a
complete absence of power to discern, or there is total deprivation
of freedom of the will. Mere abnormality of the mental faculties is
not enough, especially if the offender has not lost consciousness of
his acts. Insanity is evinced by a deranged and perverted condition
of the mental faculties and is manifested in language and conduct.
An insane person has no full and clear understanding of the nature
and consequences of his or her acts.25
Even assuming that appellant’s testimony is credible, his
sleeplessness, lack of appetite, nervousness and his hearing
imaginary voices, while suggestive of an abnormal mental
condition, cannot be equated with a total deprivation of will or an
absence of the power to discern. Mere abnormality of mental
faculties will not exclude imputability. The popular conception of
the word "crazy" is used to describe a person or an act unnatural or
out of ordinary. Testimony that a person acted in a crazy or
deranged manner days before the commission of the crime does not
conclusively prove that he is legally insane and will not grant him
or her absolution.26
Raquel Indon’s narration of the events presents evidence that is
more revealing of appellant’s mental state at the time the crime was
committed. Appellant’s reply to her pleas that her daughters’ lives
be spared, "Ngayon pa, nagawa ko na," was a positive sign that he
was aware of what he was doing, and that his reasoning faculties
were unimpaired.
The trial court found the testimony of Raquel Indon more credible
than that of the accused, and its findings were affirmed by the
Court of Appeals. It is settled that when the trial court’s findings
have been affirmed by the appellate court, said findings are
generally conclusive and binding upon this Court. This Court does
not generally disturb the findings of fact of the trial court because it
is in a better position to examine real evidence, as well as to
observe the demeanor of witnesses while testifying on the stand.
Unless there is a clear showing that it overlooked certain facts and
circumstances that might alter the result of the case, the findings of
fact made by the trial court will be respected and even accorded
finality by this Court.27
It is also remarkable that appellant’s testimony is not supported by
his family’s or intimate friends’ accounts of his purported insanity.
Appellant testified that he had been suffering from symptoms of
insanity nine days before the incident. Insanity may be shown by
the surrounding circumstances fairly throwing light on the subject,
such as evidence of the allegedly deranged person’s general
conduct and appearance, his conduct consistent with his previous
character and habits, his irrational acts and beliefs, as well as his
improvident bargains.28 It is difficult to believe that appellant’s
behavior, conduct and appearance, which would denote mental
disturbance, escaped the notice of his family and friends.
Appellant draws attention to the results of the medical examination
conducted by Dr. Regienald Afroilan in 2004, showing that he was
suffering from Schizophrenia. It should be noted however that the
examination was taken four years after the crimes were committed,
and that Dr. Afroilan admitted that his findings did not include the
mental state of petitioner four years before. The alleged insanity of
an accused should relate to the period immediately before or at the
very moment the felony is committed, not at any time thereafter.
Medical findings of mental disorder, referring to a period after the
time the crime was committed, will not exempt him from criminal
liability. 29
Appellant emphasizes the fact that he was a friend of the Indon
family and would not have committed such atrocities against them,
unless he was totally deprived of reason. In People v.
Madarang,30 this Court ruled that the fact that the accused had no
quarrel with his victim prior to the killing does not prove the
unstable mental condition of the accused. Jurisprudence is replete
with cases in which lives have been terminated for the flimsiest
reasons.
This Court will now discuss the imposition of penalties and modify
those imposed by the Court of Appeals. Appellant is guilty of
Murder in Criminal Cases No. 1496-M-2000 and No. 1497-M-
2000. The penalty for murder is reclusion perpetua to death. There
being neither mitigating nor aggravating circumstances, the penalty
for murder should be imposed in its medium period, or reclusion
perpetua.31 Thus, for the murder of Marvin Indon and Melissa
Indon, the penalty imposed on appellant is two sentences of
reclusion perpetua.
When death occurs due to a crime, the following damages may be
awarded: (1) civil indemnity ex delicto for the death of the victim;
(2) actual or compensatory damages; (3) moral damages; (4)
exemplary damages; and (5) temperate damages. 32
Civil indemnity is mandatory and granted to the heirs of the victim
without need of proof other than the commission of the
crime.33 Under prevailing jurisprudence, the award of ₱50,000.00
to the heirs of the victim as civil indemnity is in order. 34 Thus,
₱50,000.00 is awarded to the heirs of Marvin Indon and
₱50,000.00 to the heirs of Melissa Indon.
The heirs of Marvin Indon and Melissa Indon are not entitled to
actual damages, because said damages were not adequately proved.
The party seeking actual damages must produce competent proof
or the best evidence obtainable, such as receipts, to justify an
award therefor.35 The funeral expenses, to which Raquel Indon
referred in her testimony, were not supported by receipts.
Nevertheless, the award of ₱25,000.00 in temperate damages for
homicide or murder cases is proper when no evidence of burial or
funeral expenses is presented in the trial court. 36Under Article 2224
of the Civil Code, temperate damages may be recovered, as it
cannot be denied that the heirs of the victim suffered pecuniary loss
although the exact amount was not proved.37 Thus, the heirs of
Marvin Indon and Melissa Indon are entitled to temperate damages
of ₱25,000.00 for each death.
25
In cases of murder and homicide, the award of moral damages is
mandatory, without need of allegation and proof other than the
Page
death of the victim.38 The award of ₱50,000.00 as moral damages is
in order for the death for Marvin Indon, and likewise for that of
Melissa Indon.
Exemplary damages of ₱25,000.00 should also be awarded, since
the qualifying circumstance of treachery was firmly
established.39 Marvin Indon and Melissa Indon were both minors
when they were killed by the appellant. The killing by an adult of a
minor child is treacherous.40 Moreover, the victims in this case
were asleep when appellant barged into their house and attacked
their family. The attack was clearly unprovoked, and they were
defenseless against him.
In Criminal Cases No. 1498-M-2000 and No. 1501-M-2000,
appellant is guilty of the Attempted Murder of Michelle Indon and
Jeffer Indon. The penalty for Attempted Murder is prision
correccional maximum to prision mayor medium. Thus, the penalty
imposed on the appellant is two sentences of six years of prision
correccional, as minimum, to ten years of prision mayor medium,
as maximum, for the attempted murder of Michelle Indon and
Jeffer Indon. In addition to the moral damages of ₱10,000.00 for
each victim, which the Court of Appeals imposed, appellant is also
ordered to pay civil indemnity of ₱20,000.0041 and exemplary
damages of ₱25,000.00.42
In Criminal Case No. 1499-M-2000, appellant is convicted of the
crime of frustrated homicide of Ronaldo Galvez. The penalty for
frustrated homicide, there being no other mitigating or aggravating
circumstances attending the same, is five years of prision
correccional as minimum to eight years and one day of prision
mayor as maximum. Moral damages in the amount of ₱25,000.00,
awarded by the Court of Appeals, are affirmed.
Appellant is guilty of Frustrated Murder in Criminal Case No.
1500-M-2000. The penalty for Frustrated Murder is reclusion
temporal, which must be imposed in its medium period,
considering that there were neither aggravating nor mitigating
circumstances that were proven in this case. Applying the
Indeterminate Sentence Law, appellant should be sentenced to
suffer the penalty of twelve years of prision mayor, as minimum, to
seventeen years and four months of reclusion temporal medium, as
the maximum penalty. This Court affirms the award by the Court of
Appeals of (1) Civil Indemnity in the amount of ₱30,000.00;43 (2)
actual damages of ₱46,343.00 for medical expenses, which are
supported by receipts marked as Exhibits "I" and "J"; and (3) moral
damages of ₱25,000.00. Appellant is also ordered to pay exemplary
damages of ₱25,000.00 based on the finding that the assault against
Raquel Indon was attended by treachery.44 The essence of treachery
is that the attack is deliberate and without warning, done in a swift
and unexpected manner of execution, affording the hapless and
unsuspecting victim no chance to resist or escape. 45 At the time
Raquel was attacked, she was in her home, unarmed and sleeping
with her children. She was undoubtedly unprepared and
defenseless to resist appellant’s attack on her and her young
children.
All the sums of money awarded to the victims and their heirs will
accrue a 6% interest from the time of this Decision until fully paid.
WHEREFORE, the instant appeal is DENIED. The Decision of the
Court of Appeals dated 30 April 2008 in CA-G.R. CR No. 30511 is
MODIFIED in accordance with the hereinabove discussion on
penalties and award of damages, to wit:
1. In Criminal Case No. 1496-M-2000, this Court additionally awards
₱25,000.00 as temperate damages and ₱25,000.00 as exemplary damages to the
heirs of Marvin Indon.
2. In Criminal Case No. 1497-M-2000, this Court additionally awards
₱25,000.00 as temperate damages and ₱25,000.00 as exemplary damages to the
heirs of Melissa Indon.
3. In Criminal Case No. 1498-M-2000, the Court additionally awards civil
indemnity of ₱20,000.00 and exemplary damages of ₱25,000.00 to Michelle
Indon.
 4. In Criminal Case No. 1499-M-2000, the appellant is sentenced to serve an
indeterminate penalty of five years of prision correccional as minimum to eight
years and one day of prision mayor as maximum.
5. In Criminal Case No. 1500-M-2000, this Court additionally awards
exemplary damages of ₱25,000.00 to Raquel Indon.
6. In Criminal Case No. 1501-M-2000, this Court additionally awards civil
indemnity of ₱20,000.00 and exemplary damages of ₱25,000.00 to Jeffer Indon.
NIEL F. LLAVE vs. PEOPLE OF THE PHILIPPINES
Before the Court is a Petition for Review of the Decision 1 of the
Court of Appeals (CA) in CA-G.R. CR No. 26962 affirming, with
modification, the Decision2 of the Regional Trial Court (RTC) of
Pasay City, Branch 109, in Criminal Case No. 02-1779 convicting
Petitioner Neil F. Llave of rape.
On September 27, 2002, an Information charging petitioner (then
only 12 years old) with rape was filed with the RTC of Pasay City.
The inculpatory portion of the Information reads:
That on or about the 24th day of September 2002, in Pasay City,
Metro Manila, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, NEIL LLAVE Y
FLORES, aka NIEL F. LLAVE, a minor over nine (9) years of age
and under fifteen (15) but acting with discernment, by means of
force threat and intimidation, did then and there willfully,
unlawfully, feloniously have carnal knowledge of the complainant,
DEBBIELYN SANTOS y QUITALES, a minor, seven (7) years of
age, against her will and consent.
Contrary to law.3
The Case for the Prosecution
The spouses Domingo and Marilou Santos were residents of Pasay
City.4 One of their children, Debbielyn, was born on December 8,
1994.5 In 2002, she was a Grade II student at the Villamor Air Base
Elementary School in Pasay City6 and attended classes from 12:00
noon to 6:00 p.m.7
Domingo eked out a living as a jeepney driver, while Marilou sold
quail eggs at a nearby church.8 Adjacent to their house was that of
Teofisto Bucud, a barbecue vendor who would usually start selling
at 6:30 p.m.9 Next to Teofisto’s residence was a vacant house. 10
Debbielyn testified that on September 24, 2002, she arrived home
at past 6:00 p.m. She changed her clothes and proceeded to her
mother’s store. Marilou asked her daughter to bring home the
container with the unsold quail eggs.11 Debbielyn did as told and
went on her way. As she neared the vacant house, she saw
petitioner, who suddenly pulled her behind a pile of hollow blocks
which was in front of the vacant house. There was a little light
from the lamp post.12 She resisted to no avail.13 Petitioner ordered
her to lie down on the cement. Petrified, she complied. He removed
her shorts and underwear then removed his own. He got on top of
her.14 She felt his penis being inserted into her vagina. He kissed
her.15 She felt pain and cried.16 She was sure there were passersby
on the street near the vacant house at the time.
It was then that Teofisto came out of their house and heard the
girl’s cries. He rushed to the place and saw petitioner on top of
Debbielyn, naked from the waist down. Teofisto shouted at
26
petitioner, and the latter fled from the scene. Teofisto told
Debbielyn to inform her parents about what happened. 17 She told
her father about the incident.18 Her parents later reported what
Page
happened to the police authorities.19 Debbielyn told the police that
petitioner was a bad boy because he was a rapist. 20
Teofisto testified that at about 6:25 p.m. on September 24, 2002, he
went out of their house to get his barbecue grill. He heard someone
moaning from within the adjacent vacant house.21 He rushed to the
place and saw petitioner, naked from waist down, on top of
Debbielyn, making pumping motions on her anus.22 The girl was
crying. He shouted at petitioner, "Hoy, bakit ginawa mo
’yan?"23 Petitioner hurriedly put his shorts on and fled.24 Neighbors
who had heard Teofisto shouting arrived.25 Later, Teofisto gave a
written statement to the police investigator regarding the incident. 26
Domingo Santos testified that at about 6:30 p.m. that day, he was
inside their house. His daughter, Kimberly Rose, suddenly told him
that Debbielyn had been raped near the vacant house by
petitioner.27 He rushed to the place and found her daughter crying.
When he asked her what happened, she replied that she had been
abused. He brought Debbielyn to their house and then left. 28 He
then looked for petitioner and found him at his grandmother’s
house. A barangay tanod brought petitioner to the barangay
hall.29 On September 25, 2002, he brought her daughter to the
Philippine General Hospital Child Protection Unit at Taft Avenue,
Manila where she was examined by Dr. Mariella S. Castillo.
Dr. Castillo declared on the witness stand that she was a physician
at the Child Protection Unit of the Philippine General Hospital. On
September 25, 2002, she interviewed the victim who told her
"Masakit ang pepe ko," "Ni-rape ako."30 Dr. Castillo also
conducted a genital examination on the child, and found no injury
on the hymen and perineum, but found scanty yellowish discharge
between the labia minora.31 There was also a fresh abrasion of the
perineal skin at 1 o’clock position near the anal opening. 32 She
declared that the findings support the theory that blunt force or
penetrating trauma (such as an erect penis, finger, or any other
foreign body33) was applied to the perineal area34 not more than six
or seven days before.35 The abrasion could have been caused on
September 24, 2002. She found no spermatozoa in the vaginal area
or injury at the external genitalia;36 neither did she find any other
injury or abrasion on the other parts of the victim’s body. 37 She
concluded that her findings were consistent with the victim’s claim
that she was sexually abused by petitioner.
Barangay Tanod Jorge Dominguez, for his part, testified that on
September 24, 2002, Marilou Santos arrived at the barangay hall
and reported that her daughter had been raped by petitioner who
was then in his aunt’s house at Cadena de Amor Street. Barangay
Captain Greg Florante ordered him and Barangay Tanod Efren
Gonzales to proceed to Cadena de Amor Street and take the boy
into custody, and they did as they were told.38
The Case for the Accused
Petitioner, through counsel, presented Dr. Castillo as witness. She
declared that the abrasions in the perineal area could have been
caused while the offender was on top of the victim. 39 She explained
that the distance between the anus and the genital area is between
2.5 to 3 centimeters.40 The abrasion was located at ¼ of an inch
from the anal orifice.
Petitioner testified and declared that he was a freshman at the
Pasay City South High School.41 He had been one of the three
outstanding students in grade school and received awards such as
Best in Mathematics.42 He also finished a computer course and
received a Certificate of Completion from the Philippine Air Force
Management Information Center.43 He denied having raped the
private complainant. He declared that at 6:30 p.m. on September
24, 2002, he was outside of their house to buy rice in the
carinderia44 and he saw her on his way back.45 He also met his
father, who asked him what he had done to their neighbor. He was
also told that the victim’s father was so angry that the latter wanted
to kill him.46 He did not ask his father for the name of the angry
neighbor. He was also told to pass by Cadena de Amor Street in
going to his aunt’s house. Petitioner also declared that his mother
prodded him to go to his aunt’s house.47 Later, Domingo and
Barangay Tanod Jorge Dominguez arrived at his aunt’s house and
brought him to the barangay hall. He did not know of any reason
why Debbielyn and her parents would charge him with rape. 48
Petitioner also declared that he played cards with
Debbielyn.49 While confined at the Pasay City Youth Home during
trial, he had a crush on "Issa," a young female inmate. Using a
piece of broken glass (bubog) about half-an-inch long, he inscribed
her name on his right thigh, left leg and left arm. 50
Nida Llave testified and identified her son’s Certificate of Live
Birth, in which it appears that he was born on March 6, 1990. 51 She
declared that at about 6:30 p.m. on September 24, 2000, Marilou
Santos and Marilyn Bucud arrived in their house looking for her
son. According to Marilyn, her son had raped the private
complainant. She went to their house to look for her son and came
across Domingo Santos who threatened to kill her son. She and her
husband proceeded to the house of his sister Josefina at Cadena de
Amor Street where petitioner had hidden for a while. 52
At the conclusion of the trial, the court rendered judgment
convicting Neil of the crime charged. The decretal portion of the
decision reads:
FROM ALL THE FOREGOING, the Court opines that the
prosecution has proven the guilt of the xxx Niel Llave y Flores
beyond reasonable doubt when he forcibly pulled the complainant
towards the vacant lot, laid on top of her and had carnal knowledge
with the [complainant] against her will and consent who is only
seven (7) years old (sic). Moreover, he being a minor, he cannot be
meted with the Death penalty.
WHEREFORE, the Court finds the CICL [Child in Conflict with
the Law] Niel Llave y Flores guilty beyond reasonable doubt, and
crediting him with the special mitigating circumstance of minority,
this Court hereby sentences him to prision mayor minimum, Six
(6) years and One (1) day to Eight (8) years, and pay civil
indemnity of Fifty Thousand Pesos (Php50,000.00).53
The trial court declared that based on the evidence of the
prosecution that petitioner pushed the victim towards the vacant
house and sexually abused her, petitioner acted with discernment.
It also considered petitioner’s declaration that he had been a
consistent honor student.54
Petitioner appealed the decision to the CA, where he averred the
following in his Brief as appellant therein:
I WHETHER OR NOT PETITIONER WAS DENIED DUE
THE LOWER COURT ERRED WHEN IT DISREGARDED
THE MATERIAL INCONSISTENCIES OF THE
TESTIMONY OF COMPLAINING WITNESS WITH THAT
OF THE MEDICAL REPORT ON THE FACTUAL
ALLEGATION OF BLEEDING.
II
THE LOWER COURT ERRED WHEN IT GAVE
CREDENCE TO THE TESTIMONY OF THE
PROSECUTION WITNESS TEOFISTO BUCUD WHO HAS
REASON TO FABRICATE A SCENARIO AGAINST
ACCUSED-APPELLANT BECAUSE HE HAS PERSONAL
VENDETTA AGAINST THE LATTER’S
FAMILY/RELATIVES.
III
27
THE LOWER COURT ERRED IN UPHOLDING THE
THEORY OF THE PROSECUTION OF RAPE BY HAVING
CARNAL KNOWLEDGE, BEING CONTRARY TO THE
Page
PHYSICAL EVIDENCE.55
The CA rendered judgment affirming the decision with
modification as to the penalty meted on him.
WHEREFORE, the decision subject of the instant appeal is hereby
MODIFIED in that the accused-appellant is sentenced to an
indeterminate penalty of two (2) years and four (4) months of
prision correccional medium as the minimum to eight (8) years and
one (1) day of prision mayor medium as the maximum.
Additionally, the accused-appellant is ordered to pay the
complaining witness the amount of ₱50,000 by way of moral
damages and ₱20,000 by way of exemplary damages.
SO ORDERED.56
Petitioner filed a Motion for the Reconsideration, 57contending that
the prosecution failed to adduce proof that he acted with
discernment; hence, he should be acquitted. The appellate court
denied the motion in a Resolution58dated November 12, 2004 on
the following finding:
As regards the issue of whether the accused-appellant acted with
discernment, his conduct during and after the "crime" betrays the
theory that as a minor, the accused-appellant does not have the
mental faculty to grasp the propriety and consequences of the act
he made. As correctly pointed out by the prosecution, the fact that
forthrightly upon discovery, the accused-appellant fled the scene
and hid in his grandmother’s house intimates that he knew that he
did something that merits punishment.
Contrary to the urgings of the defense, the fact that the accused-
appellant is a recipient of several academic awards and is an honor
student further reinforces the finding that he [is] possessed [of]
intelligence well beyond his years and is thus poised to distinguish,
better at least than other minors his age could, which conduct is
right and which is morally reprehensible.59
Petitioner now raises the following issues and arguments in the
instant petition before this Court:
ISSUES
I
WHETHER OR NOT EVIDENCE WAS SUFFICIENT TO
CONVICT PETITIONER BEYOND REASONABLE
DOUBT.
II
WHETHER OR NOT PETITIONER, WHO WAS A MINOR
ABOVE 9 YEARS BUT BELOW 15 YEARS OF AGE AT
THE TIME OF THE CRIME, ACTED WITH
DISCERNMENT.
III
PROCESS OF LAW.
ARGUMENTS
I
THE MATERIAL INCONSISTENCIES BETWEEN THE
TESTIMONY OF COMPLAINING WITNESS WITH THE
MEDICAL REPORT BELIE THE FINDING OF RAPE.
II
PRIVATE COMPLAINANT IS NOT A CREDIBLE
WITNESS.
III
PETITIONER ACTED WITHOUT DISCERNMENT.
IV
THE TESTIMONY RELIED UPON BY THE
PROSECUTION IS HEARSAY.
V
THE COMPLAINT IS FABRICATED.
VI
PETITIONER WAS DENIED DUE PROCESS OF LAW.60
The issues raised by the petitioner in this case may be summarized
as follows: (1) whether he was deprived of his right to a
preliminary investigation; (2) whether he had carnal knowledge of
the private complainant, and if in the affirmative, whether he acted
with discernment in perpetrating the crime; (3) whether the penalty
imposed by the appellate court is correct; and (4) whether he is
liable to pay moral damages to the private complainant.
On the first issue, petitioner avers that he was deprived of his right
to a preliminary investigation before the Information against him
was filed.
On the second issue, petitioner claims that the prosecution failed to
prove beyond reasonable doubt that he had carnal knowledge of
Debbielyn. He insists that her testimony is inconsistent on material
points. He points out that she claimed to have felt pain in her
vagina when petitioner inserted his penis to the point that she cried;
this, however, is negated by Dr. Castillo’s report stating that there
was no evidence of injury on the victim’s external genitalia.
Petitioner maintains that as against the victim’s testimony and that
of Dr. Castillo’s report, the latter should prevail.
According to petitioner, mere touching of the female organ will not
suffice as factual basis of conviction for consummated rape.
Moreover, the victim’s testimony lacks credibility in view of her
admission that, while she was being allegedly ravished by him,
there were passersby along the street. Besides, petitioner avers, an
abrasion may be caused by an invasion of the body through the
protective covering of the skin. Petitioner insists that the
prosecution failed to prove the cause of the abrasion.
Petitioner also claims that the victim was tutored or coached by her
parents on her testimony before the trial court. Dr. Castillo testified
that when she interviewed Debbielyn, the latter admitted to her that
she did not understand the meaning of the word "rape" and its
Filipino translation, "hinalay," and that the genital examination of
the girl was at the insistence of the latter’s parents.
Petitioner avers that Teofisto Bucud’s testimony has no probative
weight because and had an ill-motive to testify against him.
Petitioner stated, on cross-examination, that his uncle, Boy, had the
house rented by Teofisto demolished. Petitioner avers that the
witness persuaded the victim’s parents to complain against him, as
gleaned from the testimony of Police Investigator Milagros
Carroso.
For its part, the Office of the Solicitor General (OSG) avers that
petitioner was subjected to an inquest investigation under Section
7, Rule 112 of the Revised Rules of Criminal Procedure, as gleaned
from the Certification of the City Prosecutor incorporated in the
Information. It avers that the absence of external injuries does not
negate rape; neither is it necessary that lacerations be found on the
hymen of a victim. Rape is consummated if there is some degree of
penetration within the vaginal surface. Corroborative evidence is
not necessary to prove rape. As long as the testimony of the victim
is credible, such testimony will suffice for conviction of
consummated rape. When the victim testified that she was raped,
she was, in effect, saying all that is necessary to prove that rape
was consummated. Petitioner’s evidence to prove ill-motive on the
part of Teofisto Bucud in testifying against him is at best flimsy.
Moreover, it is incredible that the victim and her parents would
charge petitioner with rape solely on Teofisto’s proddings.
The OSG insists that the petitioner acted with discernment before,
during, and after the rape based on the undisputed facts. The
28
submission of the OSG follows:
Petitioner argues that since he was only 12 years old at the time of
Page
the alleged rape incident, he is presumed to have acted without
discernment under paragraph 3 of Article 12 of the Revised Penal
Code. Under said provision, the prosecution has the burden of
proving that he acted with discernment. In the instant case,
petitioner insists that there was no evidence presented by the
prosecution to show that he acted with discernment. Hence, he
should be exempt from criminal liability.
Petitioner’s arguments are bereft of merit.
Discernment, as used in Article 12(3) of the Revised Penal Code is
defined as follows: "the discernment that constitutes an exception
to the exemption from criminal liability of a minor under fifteen
(15) years of age but over nine (9), who commits an act prohibited
by law, is his mental capacity to understand the difference between
right and wrong" (People v. Doquena, 68 Phil. 580 [1939]). For a
minor above nine but below fifteen years of age, he must discern
the rightness or wrongness of the effects of his act (Guevarra v.
Almodova, G.R. No. 75256, January 26, 1989).
Professor Ambrocio Padilla, in his annotation of Criminal Law (p.
375, 1998 Ed.), writes that "discernment is more than the mere
understanding between right and wrong. Rather, it means the
mental capacity of a minor between 9 and 15 years of age to fully
appreciate the consequences of his unlawful act" (People v.
Navarro, [CA] [51 O.G. 4062]). Hence, in judging whether a minor
accused acted with discernment, his mental capacity to understand
the difference between right and wrong, which may be known and
should be determined by considering all the circumstances
disclosed by the record of the case, his appearance, his attitude and
his behavior and conduct, not only before and during the
commission of the act, but also after and even during the trial
should be taken into consideration (People v. Doquena, supra).
In the instant case, petitioner’s actuations during and after the rape
incident, as well as his behavior during the trial showed that he
acted with discernment.
The fact appears undisputed that immediately after being
discovered by the prosecution’s witness, Teofisto Bucud, petitioner
immediately stood up and ran away. Shortly thereafter, when his
parents became aware of the charges against him and that private
complainant’s father was looking for him, petitioner went into
hiding. It was not until the Barangay Tanod came to arrest him in
his grandmother’s house that petitioner came out in the open to
face the charges against him. His flight as well as his act of going
into hiding clearly conveys the idea that he was fully aware of the
moral depravity of his act and that he knew he committed
something wrong. Otherwise, if he was indeed innocent or if he
was not least aware of the moral consequences of his acts, he
would have immediately confronted private complainant and her
parents and denied having sexually abused their daughter.
During the trial, petitioner submitted documentary evidence to
show that he was a consistent honor student and has, in fact,
garnered several academic awards. This allegation further bolstered
that he acted with discernment, with full knowledge and
intelligence. The fact that petitioner was a recipient of several
academic awards and was an honor student further reinforces the
finding that he was possessed of intelligence well beyond his years
and thus was able to distinguish, better than other minors of his age
could, which conduct is right and which is morally reprehensible.
Hence, although appellant was still a minor of twelve years of age,
he possessed intelligence far beyond his age. It cannot then be
denied that he had the mental capacity to understand the difference
between right and wrong. This is important in cases where the
accused is minor. It is worthy to note that the basic reason behind
the enactment of the exempting circumstances under Article 12 of
the Revised Penal Code is the complete absence of intelligence,
freedom of action, or intent on the part of the accused. In
expounding on intelligence as the second element of dolus, the
Supreme Court has stated: "The second element of dolus is
intelligence; without this power, necessary to determine the
morality of human acts to distinguish a licit from an illicit act, no
crime can exist, and because … the infant has no intelligence, the
law exempts (him) from criminal liability" (Guevarra v.
Aldomovar, 169 SCRA 476 [1989], at page 482).
The foregoing circumstances, from the time the incident up to the
time the petitioner was being held for trial, sufficiently satisfied the
trial court that petitioner acted with discernment before, during and
after the rape incident. For a boy wanting in discernment would
simply be gripped with fear or keep mum. In this case, petitioner
was fully aware of the nature and illegality of his wrongful act. He
should not, therefore, be exempted from criminal liability. The
prosecution has sufficiently proved that petitioner acted with
discernment.61
In reply, petitioner asserts that the only abrasion found by Dr.
Castillo was on the peri-anal skin and not in the labia of the hymen.
He further insists that there can be no consummated rape absent a
slight penetration on the female organ. It was incumbent on the
prosecution to prove that the accused acted with discernment but
failed. The mere fact that he was an honor student is not enough
evidence to prove that he acted with discernment.
The petition is not meritorious.
On the first issue, petitioner’s contention that he was deprived of
his right to a regular preliminary investigation is barren of factual
and legal basis. The record shows that petitioner was lawfully
arrested without a warrant. Section 7, Rule 112 of the Revised
Rules of Criminal Procedure provides:
SEC. 7. When accused lawfully arrested without warrant. – When a
person is lawfully arrested without a warrant involving an offense
which requires a preliminary investigation, the complaint or
information may be filed by a prosecutor without need of such
investigation provided an inquest has been conducted in
accordance with existing rules. In the absence or unavailability of
an inquest prosecutor, the complaint may be filed by the offended
party or a peace officer directly with the proper court on the basis
of the affidavit of the offended party or arresting officer or person.
Before the complaint or information is filed, the person arrested
may ask for a preliminary investigation in accordance with this
Rule, but he must sign a waiver of the provisions of Article 125 of
the Revised Penal Code, as amended, in the presence of his
counsel. Notwithstanding the waiver, he may apply for bail and the
investigation must be terminated within fifteen (15) days from its
inception.
After the filing of the complaint or information in court without a
preliminary investigation, the accused may, within five (5) days
from the time he learns of its filing, ask for a preliminary
investigation with the same right to adduce evidence in his defense
as provided for in this Rule.
As gleaned from the Certification62 of the City Prosecutor which
was incorporated in the Information, petitioner did not execute any
waiver of the provisions of Article 125 of the Revised Penal Code
before the Information was filed. He was arraigned with the
assistance of counsel on October 10, 2002, and thereafter filed a
petition for bail.63Petitioner’s failure to file a motion for a
preliminary investigation within five days from finding out that an
Information had been filed against him effectively operates as a
waiver of his right to such preliminary investigation. 64
29
On the second issue, a careful review of the records shows that the
Page
prosecution adduced evidence to prove beyond reasonable doubt
that petitioner had carnal knowledge of the private complainant as
charged in the Information. In People v. Morata65 the Court ruled
that penetration, no matter how slight, or the mere introduction of
the male organ into the labia of the pudendum, constitutes carnal
knowledge. Hence, even if the penetration is only slight, the fact
that the private complainant felt pains, points to the conclusion that
the rape was consummated.66
From the victim’s testimony, it can be logically concluded that
petitioner’s penis touched the middle part of her vagina and
penetrated the labia of the pudendum. She may not have had
knowledge of the extent of the penetration; however, her
straightforward testimony shows that the rape passed the stage of
consummation.67 She testified that petitioner dragged her behind a
pile of hollow blocks near the vacant house and ordered her to lie
down. He then removed her shorts and panty and spread her legs.
He then mounted her and inserted his penis into her vagina:
Fiscal Barrera:
Q: From what time up to what time?
A: From 12:00 o’clock noon up to 6:00 p.m.
Q: September 24, 2002 and going over the calendar, it was
Tuesday. Did you go to school from 12:00 o’clock noon up to 6:00
p.m.?
A: Yes, Sir, on the same date I went to school.
Q: At about 6:00 p.m., Sept. 24, 2002, where were you?
A: I went home.
Q: And by whom you are referring to your house at 1-C Carnation
St., R. Higgins, Maricaban, Pasay City?
A: Yes, Sir.
Q: And what did you do after you went home?
A: I changed my clothes and then I proceeded to the store of my
mother.
Q: And where is that store of your mother where you went?
A: It is near our house, walking distance.
Q: What is your mother selling in that store?
A: She sells quail eggs.
Q: And were you able to immediately go to the store of your
mother where she was selling quail eggs?
A: Yes, sir.
Q: And that was past 6:00 p.m. already?
A: Yes, sir.
Q: And what happened when you went to the store where your
mother is selling quail eggs past 6:00 p.m.?
A: My mother asked me to bring home something.
Q: What were these things you were asked by your mother to bring
home?
A: The things she used in selling.
Q: And did you obey what your mother told you to bring home
something?
A: Yes, Sir.
Q: And what happened to you in going to your house?
A: Totoy pulled me.
Q: Pulled you where?
A: Totoy pulled me towards an uninhabited house.
Q: What happened after Totoy pulled you in an uninhabited house?
A: He told me to lie down on the cement.
Q: What happened after he laid you down on the cement?
A: He removed my shorts and panty. He also removed his shorts.
Q: After Totoy removed your shorts and panty and he also removed
his shorts, what happened next?
A: He inserted his penis inside my vagina.
Q: What did you feel when Totoy inserted his penis inside your
vagina?
A: It was painful.
Q: Aside from inserting his penis inside your vagina, what else did
you do to you?
A: He kissed me on my lips.
Q: After Totoy inserted his penis inside your vagina and kissed you
on your lips, what did you do?
A: I cried.
Q: What happened when you were crying when he inserted his
penis inside your vagina and kissed you on your lips. What
happened next?
A: Somebody heard me crying.
Q: Who heard you crying?
A: Kuya Teofe, Sir.
Q: What happened after you cried and when somebody heard you
crying?
A: Totoy ran away.
Q: After Totoy ran away, what happened next?
A: When Totoy ran away, I was left and Kuya Teofe told me to tell
the matter to my parents.
Q: Did you tell your parents what Totoy did to you?
A: Yes, Sir.68
On cross-examination, the victim was steadfast in her declarations:
ATTY. BALIAD:
Q: Again, in what particular position were you placed by Totoy
when he inserted his penis inside your vagina?
A: I was lying down.
Q: Aside from lying down, how was your body positioned at that
time?
A: He placed on top of me.
Q: After he placed on top of you, what else did he do to you, if
any?
A: He started to kiss me and then he inserted his penis inside my
vagina.
Q: Did you feel his penis coming in into your vagina?
A: Yes, Sir.
Q: Are you sure that his penis was inserted inside your vagina?
A: Yes, Sir.69
When questioned on cross-examination whether she could
distinguish a vagina from an anus, the victim declared that she
could and proceeded to demonstrate. She reiterated that the penis
of petitioner penetrated her vagina, thus, consummating the crime
charged:
Atty. Baliad:
Q: Do you recall having stated during the last hearing that the
accused, Neil Llave or "Totoy" inserted his penis in your vagina,
do you recall that?
A: Yes, Sir.
Q: And likewise, you testified that you feel that the penis of Neil
entered your vagina?
A: Yes, Sir.
Q: Could you distinguish vagina from your anus?
A: Yes, Sir.
Q: Where is your "pepe"?
A: (Witness pointing to her vagina.)
Q: Where is your anus?
A: (Witness pointing at her back, at the anus.)
Q: In your statement, am I correct to say that Neil, the accused in
this case penetrated only in your vagina and not in your anus?
A: Yes, Sir.
Q: So that, your anus was not even touched by the accused neither
by his penis touched any part of your anus?
A: He did not insert anything on my anus, Sir.70
While it is true that Dr. Castillo did not find any abrasion or
laceration in the private complainant’s genitalia, such fact does not
negate the latter’s testimony the petitioner had carnal knowledge of
her. The absence of abrasions and lacerations does not disprove
sexual abuses, especially when the victim is a young girl as in this
case.71 According to Dr. Castillo, the hymen is elastic and is
capable of stretching and reverting to its original form. 72 The
doctor testified that her report is compatible with the victim’s
testimony that she was sexually assaulted by petitioner:
Atty. Baliad:
Q: Do you recall having stated during the last hearing that the
accused, Neil Llave or "Totoy" inserted his penis in your vagina,
do you recall that?
30
A: Yes, Sir.
Q: And likewise, you testified that you feel (sic) that the penis of
Page
Neil entered your vagina?
A: Yes, Sir.
Q: Could you distinguish vagina from your anus?
A: Yes, Sir.
Q: Where is your "pepe"?
A: (Witness pointing to her vagina.)
Q: Where is your anus?
A: (Witness pointing at her back, at the anus.)
Q: In your statement, am I correct to say that Neil, the accused in
this case penetrated only in your vagina and not in your anus?
A: Yes, Sir.
Q: So that, your anus was not even touched by the accused neither
by his penis touched any part of your anus?
A: He did not insert anything on my anus, Sir.
xxxx
Fiscal Barrera:
Q: Based on your testimony doctor, and the medico genital
examination propounded on the report that the victim here,
Debbielyn Santos is complaining that around 6:00 in the evening of
September 24, 2002, she was sexually abused and that on the
following day, September 25, you interviewed her and stated to
you that her genitalia was hurting and in binocular (sic) "masakit
ang pepe ko, ni-rape ako," would your findings as contained in this
Exh. B and C be compatible with the allegation if the minor victim
that she was sexually abused on September 24. 2002 at around 6:00
p.m.?
Atty. Baliad:
Objection, Your Honor. The one who narrated the incident is the
mother.
Court:
What is your objection?
Atty. Baliad:
The objection, Your Honor, is the question propounded is that it
was the minor who made the complaint regarding the allegation.
Fiscal Barrera:
The answer were provided…..
Court:
The doctor is being asked whether or not her findings is compatible
with the complaint of the minor. Overruled. Answer.
Witness:
A It is compatible with the allegation of the minor.
Fiscal Barrera:
Confronting you again with your two (2) medico-genital
documents, the Provincial and Final Report mark[ed] in evidence
as Exhs. B and C, at the lower portion of these two exhibits there
appears to be a signature above the typewritten word, Mariella
Castillo, M.D., whose signature is that doctor?
A Both are my signatures, Sir.73
Dr. Castillo even testified that the abrasion near the private
complainant’s anal orifice could have been caused by petitioner
while consummating the crime charged:
Fiscal Barrera:
Q: With your answer, would it be possible doctor that in the
process of the male person inserting his erect penis inside the
vagina, in the process, would it be possible that this abrasion could
have been caused while in the process of inserting the penis into
the vagina touch the portion of the anus where you find the
abrasion?
A: It is possible, Sir.
Q: Now, are you aware, in the course of your examination, that the
alleged perpetrator is a 12-year-old minor?
A: I only fount it out, Sir, when I testified.
Q: Do you still recall your answer that a 12-year-old boy could
cause an erection of his penis?
A: Yes, sir.
Q: To enlight[en] us doctor, we, not being a physician, at what age
could a male person can have erection?
A: Even infants have an erection.74
Petitioner’s contention that the private complainant was coached
by her parents into testifying is barren of merit. It bears stressing
that the private complainant testified in a straightforward and
spontaneous manner and remained steadfast despite rigorous and
intensive cross-examination by the indefatigable counsel of the
petitioner. She spontaneously pointed to and identified the
petitioner as the perpetrator.
It is inconceivable that the private complainant, then only a seven-
year old Grade II pupil, could have woven an intricate story of
defloration unless her plaint was true.75 The Presiding Judge of the
trial court observed and monitored the private complainant at close
range as she testified and found her testimony credible. Case law is
that the calibration by the trial court of the evidence on record and
its assessment of the credibility of witnesses, as well as its findings
of facts and the conclusions anchored on said findings, are
accorded conclusive effect by this Court unless facts and
circumstances of substance were overlooked, misconstrued or
misinterpreted, which, if considered would merit a nullification or
reversal of the decision. We have held that when the offended party
is young and immature, from the age of thirteen to sixteen, courts
are inclined to give credence to their account of what transpired,
considering not only their relative vulnerability but also the shame
and embarrassment to which they would be exposed if the matter to
which they testified is not true.76
Neither do we lend credence to petitioner’s claim that the charge
against him is but a fabrication and concoction of the private
complainant’s parents. Indeed, petitioner admitted in no uncertain
terms that the spouses had no ill-motive against him. Thus, Neil
testified as follows:
Fiscal Barrera:
Q: As you testified earlier that you have played post cards with
Debbielyn Santos alias Lyn-lyn and you have no quarrel or
misunderstanding with Lyn-lyn. Do you know of any reason why
Lyn-lyn complaint (sic) against you for sexual abuse?
A: I don’t know of any reason, Sir.
Q: You also testified that you do not have any quarrel or
misunderstanding with Lyn-lyn’s parents, spouses Domingo
Santos, Jr. and Marilou Santos, do you think of any reason as to
why they would file a complaint against you for molesting their 7-
year-old daughter?
A: I do not know of any reason why they filed a complaint against
me, Sir.
Fiscal Barrera: That would be all, Your Honor.77
There is no evidence that the parents of the offended party coached
their daughter before she testified. No mother or father would
stoop so low as to subject their daughter to the tribulations and the
embarrassment of a public trial knowing that such a traumatic
experience would damage their daughter’s psyche and mar her life
if the charge is not true.78
On the other hand, when the parents learned that their daughter had
been assaulted by petitioner, Domingo tried to locate the offender
and when he failed, he and his wife reported the matter to the
barangay authorities. This manifested their ardent desire to have
petitioner indicted and punished for his delictual acts.
That petitioner ravished the victim not far from the street where
residents passed by does not negate the act of rape committed by
petitioner. Rape is not a respecter of time and place. The crime may
be committed by the roadside and even in occupied premises. 79 The
presence of people nearby does not deter rapists from committing
the odious act.80 In this case, petitioner was so daring that he
ravished the private complainant near the house of Teofisto even as
commuters passed by, impervious to the fact that a crime was being
committed in their midst.
31
Case law has it that in view of the intrinsic nature of rape, the only
evidence that can be offered to prove the guilt of the offender is the
Page
testimony of the offended party. Even absent a medical certificate,
her testimony, standing alone, can be made the basis of conviction
if such testimony is credible. Corroborative testimony is not
essential to warrant a conviction of the perpetrator. 81 Thus, even
without the testimony of Teofisto Bucud, the testimonies of the
offended party and Dr. Castillo constitute evidence beyond
reasonable doubt warranting the conviction of petitioner.
Teofisto’s testimony cannot be discredited by petitioner simply
because his uncle caused the demolition of the house where
Teofisto and his family were residing. It bears stressing that
Teofisto gave a sworn statement to the police investigator on the
very day that the petitioner raped Debbielyn and narrated how he
witnessed the crime being committed by the petitioner. 82 In the
absence of proof of improper motive, the presumption is that
Teofisto had no ill-motive to so testify, hence, his testimony is
entitled to full faith and credit.83
The trial court correctly ruled that the petitioner acted with
discernment when he had carnal knowledge of the offended party;
hence, the CA cannot be faulted for affirming the trial court’s
ruling.1âwphi1
Article 12, paragraph 3 of the Revised Penal Code provides that a
person over nine years of age and under fifteen is exempt from
criminal liability, unless he acted with discernment. The basic
reason behind the exempting circumstance is complete absence of
intelligence, freedom of action of the offender which is an essential
element of a felony either by dolus or by culpa. Intelligence is the
power necessary to determine the morality of human acts to
distinguish a licit from an illicit act.84 On the other hand,
discernment is the mental capacity to understand the difference
between right and wrong. The prosecution is burdened to prove
that the accused acted with discernment by evidence of physical
appearance, attitude or deportment not only before and during the
commission of the act, but also after and during the trial. 85 The
surrounding circumstances must demonstrate that the minor knew
what he was doing and that it was wrong. Such circumstance
includes the gruesome nature of the crime and the minor’s cunning
and shrewdness.
In the present case, the petitioner, with methodical fashion, dragged
the resisting victim behind the pile of hollow blocks near the
vacant house to insure that passersby would not be able to discover
his dastardly acts. When he was discovered by Teofisto Bucud who
shouted at him, the petitioner hastily fled from the scene to escape
arrest. Upon the prodding of his father and her mother, he hid in his
grandmother’s house to avoid being arrested by policemen and
remained thereat until barangay tanods arrived and took him into
custody.
The petitioner also testified that he had been an outstanding grade
school student and even received awards. While in Grade I, he was
the best in his class in his academic subjects. He represented his
class in a quiz bee contest.86At his the age of 12, he finished a
computer course.
In People v. Doqueña,87 the Court held that the accused-appellant
therein acted with discernment in raping the victim under the
following facts:
Taking into account the fact that when the accused Valentin
Doqueña committed the crime in question, he was a 7th grade pupil
in the intermediate school of the municipality of Sual, Pangasinan,
and as such pupil, he was one of the brightest in said school and
was a captain of a company of the cadet corps thereof, and during
the time he was studying therein he always obtain excellent marks,
this court is convinced that the accused, in committing the crime,
acted with discernment and was conscious of the nature and
consequences of his act, and so also has this court observed at the
time said accused was testifying in his behalf during the trial of this
case.88
The CA ordered petitioner to pay ₱50,000.00 as moral damages
and ₱20,000.00 as exemplary damages. There is no factual basis
for the award of exemplary damages. Under Article 2231, of the
New Civil Code, exemplary damages may be awarded if the crime
was committed with one or more aggravating circumstances. In
this case, no aggravating circumstance was alleged in the
Information and proved by the People; hence, the award must be
deleted.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED
for lack of merit. The decision of the Court of Appeals in CA-G.R.
CR No. 26962 is AFFIRMED WITH MODIFICATION that the
award of exemplary damages is DELETED.
ALVIN JOSE vs. PEOPLE OF THE PHILIPPINES
This is a petition for review on certiorari of the Decision1 of the
Court of Appeals (CA) in CA-G.R. CR No. 22289 affirming with
modification the Decision2 of the Regional Trial Court of Calamba,
Laguna, Branch 36, convicting the accused therein of violation of
Section 21(b), Article IV in relation to Section 29, Article IV of
Republic Act No. 6425, as amended.
The records show that Alvin Jose and Sonny Zarraga were charged
with the said crime in an Information, the accusatory portion of
which reads:
That on or about November 14, 1995, in the municipality of
Calamba, Province of Laguna, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring,
confederating and mutually helping one another, not being licensed
or authorized by law, did then and there willfully, unlawfully and
feloniously sell and deliver to other person
METHAMPHETAMINE HYDROCHLORIDE (or shabu)
weighing 98.40 grams, a regulated drug, and in violation of the
aforestated law.
CONTRARY TO LAW.3
The accused, assisted by counsel, pleaded not guilty to the charge.
As culled by the trial court, the evidence of the prosecution
established the following:
… [O]n November 14, 1995, P/Supt. Joseph R. Castro of the
Fourth Regional Narcotics Unit received an information from an
unnamed informant. Said unnamed informant was introduced to
him by former Narcom P/Senior Inspector Recomono. The
information was that a big time group of drug pushers from
Greenhills will deliver 100 grams of shabu at Chowking
Restaurant located at Brgy. Real, Calamba, Laguna.
Acting on such report, SPO1 Bonifacio Guevarra was assigned to
act as the poseur-buyer. SPO2 William Manglo and SPO2 Wilfredo
Luna were the other members of the team. SPO1 Guevarra was
provided with marked money consisting of a ₱1,000.00 bill on top
of a bundle of make-believe "money bills" supposedly amounting
to ₱100,000.00. P/Supt. Joseph R. Castro, SPO2 William Manglo
and Wilfredo Luna went to the place on a Mitsubishi Lancer while
SPO1 Guevarra and the informant boarded an L-300 van. They
arrived at the Chowking Restaurant at about 11:00 in the morning.
They positioned their cars at the parking area where they had a
32
commanding view of people going in and out (TSN, October 3,
1996, pp. 2-8 and TSN, July 11, 1996, pp. 4-7).
Page
It was about 4 o’clock in the afternoon when a Toyota Corolla with
Plate No. UBV-389 arrived. Sonny Zarraga was the driver with
Alvin Jose. The unnamed informant approached and talked to
Sonny Zarraga. Then, the informant called SPO1 Bonifacio
Guevarra and informed the latter that Sonny Zarraga had with him
100 grams of shabu. SPO1 Bonifacio Guevarra offered to buy
the shabu. Sonny Zarraga asked SPO1 Bonifacio Guevarra if he
had the money to buy 100 grams of shabu. Guevarra responded in
the affirmative. He showed the aforecited bundle of "money bills."
Sonny Zarraga then asked Alvin Jose to bring out the shabu and
handover (sic) to Bonifacio Guevarra. SPO1 Bonifacio Guevarra,
in turn, handed the bundle of "money bills."
Guevarra scratched his head, the pre-arranged signal to signify that
the transaction was consummated (TSN, July 30, 1996, pp. 3-8).
Immediately thereafter, William Manglo and Wilfredo Luna
approached and introduced themselves as Narcom Operatives.
They arrested Sonny Zarraga and Alvin Jose. The buy-bust bundle
of "money bills" and the shabu were recovered. The two were
brought to Camp Vicente Lim for investigation. Edgar Groyon
conducted the investigation. The shabu was brought to the PNP
Crime Laboratory for examination (TSN, July 30, 1996, pp. 9-10
and TSN, October 3, 1996, pp. 9-13). P/Senior Inspector Mary Jean
Geronimo examined the shabu. She reported and testified that the
specimen, indeed, was a second or low grade methamphetamine
hydrochloride (TSN, July 30, 1996, pp. 31-36).4
On the other hand, the accused therein were able to establish the
following facts:
Sonny Zarraga and Alvin Jose claimed that, on November 13,
1995, they were at SM Mega Mall (sic), Mandaluyong, Metro
Manila, to change money. Suddenly, a person with a hand bag
appeared and ordered them to handcuff themselves. They were
later able to identify three of these people as Police Supt. Joseph
Roxas Castro, SPO3 Noel Seno and a certain Corpuz. They were
all in civilian clothes.
They proceeded to where Sonny Zarraga’s car was parked. Sonny
Zarraga was forced to board another car while another person
drove Sonny Zarraga’s car with Alvin Jose as passenger. They
drove towards Greenhills. They were eventually blindfolded. On
the way to Greenhills, one of the men opened the gloves
compartment of Sonny Zarraga’s car. One of the men saw a
substance inside the said compartment. He tasted it. Said person
asked Sonny Zarraga if he could come up with ₱1.5 Million
peso (sic). Col. Castro even showed the picture of Sonny Zarraga’s
mother-in-law who was supposed to be a rich drug pusher.
They ended up inside a room with a lavatory. While inside the said
room, Sonny Zarraga’s cellular phone rung. It was a call from
Sonny Zarraga’s wife. Col. Castro talked to Pinky Zarraga and
asked her if she could pay ₱1.5 Million as ransom for the release of
Sonny Zarraga. Sonny Zarraga instead offered to withdraw money
from the bank in the amount of ₱75,000.00. The agreement was
that in the bank, Pinky Zarraga would withdraw the money and
deliver it to Col. Castro in exchange for Sonny Zarraga’s release.
The agreement did not materialize. Col. Castro and Pinky Zarraga
met inside the bank but Pinky Zarraga refused to withdraw the
money as Sonny Zarraga was nowhere to be seen. There was a
commotion inside the bank which prompted the bank manager to
call the police.
Col. Castro left the bank in a hurry, passed by for Alvin Jose who
was left at the room and brought them to Camp Vicente Lim.
There, they were investigated.1awphi1.nét
The defense claimed that SPO3 Noel Seno got Sonny Zarraga’s
jewelry, ₱85,000.00 in cash and Sonny Zarraga’s car spare tire,
jack and accessories. Noel Seno was even able to withdraw the
₱2,000.00 using Sonny Zarraga’s ATM card.5
On June 10, 1998, the trial court rendered judgment convicting
both accused of the crime charged and sentencing each of them to
an indeterminate penalty. The fallo of the decision reads:
WHEREFORE, this Court finds both the accused Sonny Zarraga
and Alvin Jose guilty beyond reasonable doubt, for violation of
R.A. 6425, as amended, and is hereby sentenced to suffer the
penalty of imprisonment of, after applying the Indeterminate
Sentence Law, six (6) years and one (1) day to ten (10) years.
Both accused are hereby ordered to pay the fine of ₱2 million each
and to pay the cost of suit.
In the service of sentence, the preventive imprisonment undergone
both by the accused shall be credited in their favor.
Atty. Christopher R. Serrano, Branch Clerk of Court, is hereby
ordered to deliver and surrender the confiscated Methamphetamine
Hydrochloride to the Dangerous Drugs Board.
SO ORDERED.6
On appeal to the CA, the accused-appellants averred that the trial
court erred as follows:
I allege specifically in the Information that the petitioner so acted. It
THE TRIAL COURT GRAVELY ERRED IN GIVING FULL
CREDENCE TO THE EVIDENCE PRESENTED BY THE
PROSECUTION.
II
THE TRIAL COURT GRAVELY ERRED IN NOT
CONSIDERING THAT THE MERE PRESENTATION OF
THE SHABU IN COURT IS NOT SUFFICIENT TO FIND, WITH
ABSOLUTE CERTAINTY, THAT THE APPELLANTS
COMMITTED THE CRIME OF SELLING PROHIBITED
DRUGS, ESPECIALLY WHEN THE IDENTITY OF THE DRUG
WAS NOT PARTICULARLY SET OUT IN THE TESTIMONY
OF THE PROSECUTION WITNESSES.
III
EVEN GRANTING THAT THE TRIAL COURT CORRECTLY
FOUND THE APPELLANTS GUILTY OF THE CRIME
CHARGED AGAINST THEM:
(a) THE TRIAL COURT DID NOT IMPOSE THE
PROPER PENALTY AGAINST THEM.
(b) EACH OF THE APPELLANTS CANNOT BE
MADE TO PAY A FINE IN THE AMOUNT OF ₱2
MILLION PESOS (SIC) AND THE COST OF THE
SUIT.7
The CA rendered judgment affirming the decision appealed from
with modification. The appellate court reduced the penalty imposed
on appellant Alvin Jose, on its finding that he was only thirteen
(13) years old when he committed the crime; hence, he was entitled
to the privileged mitigating circumstance of minority and to a
reduction of the penalty by two degrees. The appellant filed a
motion for reconsideration, alleging that since the Information
failed to allege that he acted with discernment when the crime was
committed and that the prosecution failed to prove the same, he
should be acquitted. The appellate court denied the motion.
Appellant Jose, now the petitioner, filed his petition for review
33
on certiorari, alleging that –
THE COURT OF APPEALS GRAVELY ERRED IN NOT
Page
ACQUITTING PETITIONER DESPITE (1) THE FAILURE OF
THE PROSECUTION TO PROVE BEYOND REASONABLE
DOUBT THAT PETITIONER, WHO WAS ONLY 13 YEARS
OLD WHEN THE CRIME WAS ALLEGEDLY COMMITTED
BY HIM IN CONSPIRACY WITH CO-ACCUSED SONNY
ZARRAGA, ACTED WITH DISCERNMENT, AND (2) THE
ABSENCE OF A DECLARATION BY THE TRIAL COURT
THAT PETITIONER SO ACTED WITH DISCERNMENT,
PURSUANT TO THE APPLICABLE PROVISIONS OF THE
REVISED PENAL CODE AND THE ESTABLISHED
JURISPRUDENCE.8
The petitioner asserts that, under paragraph 3, Article 12 of the
Revised Penal Code, a minor over nine (9) and under fifteen (15)
years of age at the time of the commission of the crime is exempt
from criminal liability unless he acted with discernment, in which
case he shall be proceeded against in accordance with Article 192
of Presidential Decree (P.D.) No. 603, as amended by P.D. No.
1179, as provided for in Article 68 of the Revised Penal Code. He
avers that the prosecution was burdened to allege in the
Information and prove beyond reasonable doubt that he acted with
discernment, but that the prosecution failed to do so. The petitioner
insists that the court is mandated to make a finding that he acted
with discernment under paragraph 1, Article 68 of the Revised
Penal Code and since the CA made no such finding, he is entitled
to an acquittal.
For its part, the Office of the Solicitor General (OSG) asserts that
the allegation in the Information that the petitioner and his co-
accused conspired and confederated to sell the shabu subject of the
Information sufficiently avers that the petitioner acted with
discernment; hence, there was no need for the public prosecutor to
contends that it is not necessary for the trial and appellate courts to
make an express finding that the petitioner acted with discernment.
It is enough that the very acts of the petitioner show that he acted
knowingly and was sufficiently possessed with judgment to know
that the acts he committed were wrong.
The petition is meritorious.
Under Article 12(3) of the Revised Penal Code, a minor over nine
years of age and under fifteen is exempt from criminal liability if
charged with a felony. The law applies even if such minor is
charged with a crime defined and penalized by a special penal law.
In such case, it is the burden of the minor to prove his age in order
for him to be exempt from criminal liability. The reason for the
exemption is that a minor of such age is presumed lacking the
mental element of a crime – the capacity to know what is wrong as
distinguished from what is right or to determine the morality of
human acts; wrong in the sense in which the term is used in moral
wrong.9 However, such presumption is rebuttable.10 For a minor at
such an age to be criminally liable, the prosecution is burdened 11 to
prove beyond reasonable doubt, by direct or circumstantial
evidence, that he acted with discernment, meaning that he knew
what he was doing and that it was wrong.12 Such circumstantial
evidence may include the utterances of the minor; his overt acts
before, during and after the commission of the crime relative
thereto; the nature of the weapon used in the commission of the
crime; his attempt to silence a witness; his disposal of evidence or
his hiding the corpus delicti.
In the present case, the prosecution failed to prove beyond
reasonable doubt that the petitioner, who was thirteen (13) years of
age when the crime charged was committed, acted with
discernment relative to the sale of shabu to the poseur-buyer. The
only evidence of the prosecution against the petitioner is that he
was in a car with his cousin, co-accused Sonny Zarraga, when the
latter inquired from the poseur-buyer, SPO1 Bonifacio Guevarra, if
he could afford to buy shabu. SPO1 Guevarra replied in the
affirmative, after which the accused Zarraga called the petitioner to
bring out and hand over the shabu wrapped in plastic and white
soft paper. The petitioner handed over the plastic containing
the shabu to accused Zarraga, who handed the same to the poseur-
buyer:
Q Whom did you approach to buy the shabu?
A The two of them, Sir.
Q While the two of them was (sic) sitting inside the car, what
did you tell them?
A They asked me if I can afford to buy the 100 grams, Sir.
Q And what was your response?
A I answer in (sic) affirmative, Sir.
Q And what happened next?
A After that I showed my money, Sir.
Q Now, tell us when you said they reply (sic) in the
affirmative specifically…. I withdraw that.
Q When you said they asked you whether you can afford to
buy 100 grams tell us who asked you that question?
A Sonny Zarraga, Sir.
Q And after you answer (sic) in the affirmative, what was his
response?
A He let his companion to (sic) bring out the shabu, Sir.
Q Did his companion bring out the shabu?
A Yes, Sir.
Q What happened to the shabu?
A Alvin Jose handed the shabu to his companion Sonny
Zarraga.
Q After that, what did Sonny Zarraga do with the shabu?
A He handed it to me, Sir.
Q After this shabu was handed to you, what happened next?
A After examining the shabu, I put it in my pocket and then I
handed to him the money, Sir.
Q When you say money, which money are you referring to?
A The ₱1,000.00 bill with the bundle of boodle money, Sir.
Q Now, after you handed the money to the accused, what
happened next?
A I made signs to my companions, Sir.
Q What signs did you give?
A I acted upon our agreement by scratching my head, Sir.
Q And how did your companions respond to your signal?
A After scratching my head, my companions approached us
and arrested them.
Q Now, tell us, do you know, in particular, who arrested
Sonny Zarraga?
A Yes, Sir.
Q Tell us.
A SPO1 William Manglo and PO3 Wilfredo Luna, Sir.
Q Can you describe to us the manner by which Sonny Zarraga
was arrested by these police officers?
A Yes, Sir.
Q Please tell us.
A They introduced themselves as NARCOM operatives, Sir.
Q And after that, what happened?
A They recovered the money from Sonny Zarraga, Sir. 13
… A No, Sir.
Q What happened to the shabu which was handed to you by
the accused?
A It was brought by our office to the crime laboratory, Sir.
Q Who made the request for its examination?
A SPO3 Edgar Groyon, Sir.
Q Earlier, you said that the shabu was handed to you. What
did you do with the shabu?
A While we were at the area, I handed it to SPO1 William
Manglo, Sir.
Q Tell us, when this shabu was handed to you by the accused,
in what container was it contained?
A When it was handed to me by Sonny Zarraga it was
wrapped in a plastic and white soft paper, Sir.14
34
It was accused Zarraga who drove the car and transacted with
Page
the poseur-buyer relative to the sale of shabu. It was also
accused Zarraga who received the buy-money from the
poseur-buyer. Aside from bringing out and handing over the
plastic bag to accused Zarraga, the petitioner merely sat inside
the car and had no other participation whatsoever in the
transaction between the accused Zarraga and the poseur-
buyer. There is no evidence that the petitioner knew what was
inside the plastic and soft white paper before and at the time
he handed over the same to his cousin. Indeed, the poseur-
buyer did not bother to ask the petitioner his age because he
knew that pushers used young boys in their transactions for
illegal drugs. We quote the testimony of the poseur-buyer:
ATTY. VERANO:
Q Did you try to find out if they were friends of your
informant?
A No, Sir.
Q Did you find out also the age of this Mr. Alvin Yamson?
A I don’t know the exact age, what I know is that he is a
minor, Sir.
Q Eventually, you find (sic) out how old he is (sic)?
A I don’t know, Sir.
Q Mr. Guevarra, may I remind you that, in your affidavit, you
stated the age of the boy?
A I cannot recall anymore, Sir.
Q Were you not surprised from just looking at the boy at his
age, were you not surprised that a young boy like that would
be in a group selling drugs?
FISCAL:
It calls for an opinion, Your Honor.
ATTY. VERANO:
May I ask, Your Honor, if he did not further interrogate why
or how this very young boy (sic) selling 100 grams of shabu.
COURT:
The witness may answer.
WITNESS:
A No more, Sir, because I know that young boys are being
used by pushers.15
Even on cross-examination, the public prosecutor failed to
elicit from the petitioner facts and circumstances showing his
capacity to discern right from wrong. We quote the questions
of the public prosecutor on cross-examination and the
petitioner’s answers thereto:
FISCAL:
Cross, Your Honor. May I proceed.
COURT:
Please proceed.
FISCAL:
Q Mr. Witness, you started your narration that it started on
November 13, 1995 and did I hear it right that you went to
Manuela at 5 o’clock in the afternoon?
WITNESS:
A Yes, Sir.
Q Now, when you went to Manuela, you came from Filinvest,
Quezon City? You left Filinvest, Quezon City, at 12 o’clock?
Q What time did you leave?
A After lunch, Sir.
Q Now, on the second day which you claimed that you were
in the custody of the police, you said that at one occasion on
that day, you have (sic) a chance to be with your cousin in a
[L]ancer car and it was inside that [L]ancer car when your
cousin saw his own cellular phone on one of the seats of the
car, is that correct?
A Yes, Sir.
Q Did your cousin tell you that that was his first opportunity
to make a call to anybody since the day that you were
arrested?
A He did not say anything, he just get (sic) the cellular
phone.1a\^/phi1.net
Q Did you come to know the reason how that cellular phone
appeared inside that [L]ancer car?
A No, Sir.
Q Now, going back to the first day of your arrest. You said
that you were accosted by a male person at the workshop and
 then you went out of Megamall and when you went outside, of Calamba, Laguna, Branch 36, is SET ASIDE. The petitioner is
this man saw the key of the car dangling at the waist. At ACQUITTED of the crime charged for insufficiency of evidence. 1
whose waist?
A From my cousin.
Q And at that time, that person did not have any knowledge
where your car was?
A No, Sir.
Q And your cousin told him that your car was parked at the
third level parking area of SM Megamall, is that correct?
A Yes, Sir.
Q And at that time, that man did not make any radio call to
anybody?
A No, Sir.
Q Until the time that you reached the third level parking of
Megamall, he had not made any call?
A No, Sir.
Q And yet when you reach (sic) the third level parking of the
Megamall, you claimed that there was already this group
which met you?
A Yes, Sir.
Q And this group were the policemen who are the companions
of the male person who arrested you?
A Yes, Sir.
Q Do you know the reason why they were there at that time?
A No, Sir.
Q These people do not know your car?
A No, Sir.
FISCAL:
No further question, Your Honor.
ATTY. VERANO:
No re-direct, Your Honor.
COURT:
Q Mr. Witness, earlier you stated that you are not a drug user
nor have you seen any shabu. In support of your claim, are
you willing to submit yourself to an examination?
WITNESS:
A Yes, Your Honor.
Q Are you willing to submit a sample of your urine to this
Court?
A Yes, Sir.
COURT:
The witness is discharged.16

The claim of the OSG that the prosecution was able to prove that
the petitioner conspired with his co-accused to sell shabu to the
poseur-buyer, and thereby proved the capacity of the petitioner to
discern right from wrong, is untenable. Conspiracy is defined as an
agreement between two or more persons to commit a crime and
decide to commit it. Conspiracy presupposes capacity of the parties
to such conspiracy to discern what is right from what is wrong.
Since the prosecution failed to prove that the petitioner acted with
discernment, it cannot thereby be concluded that he conspired with
his co-accused. Indeed, in People v. Estepano ,17 we held that:

Clearly, the prosecution did not endeavor to establish Rene’s

mental capacity to fully appreciate the consequences of his
unlawful act. Moreover, its cross-examination of Rene did not, in
any way, attempt to show his discernment. He was merely asked
about what he knew of the incident that transpired on 16 April
1991 and whether he participated therein. Accordingly, even if he
was, indeed, a co-conspirator, he would still be exempt from
criminal liability as the prosecution failed to rebut the presumption
of non-discernment on his part by virtue of his age. The cross-
examination of Rene could have provided the prosecution a good
occasion to extract from him positive indicators of his capacity to
discern. But, in this regard, the government miserably squandered
the opportunity to incriminate him.181awphi1.nét
35

IN LIGHT OF ALL THE FOREGOING, the petition is

Page

GRANTED. The Decision of the Court of Appeals in CA-G.R. CR

No. 22289 which affirmed the Decision of the Regional Trial Court