G.R. No.

142396 February 11, 2003

KHOSROW MINUCHER, petitioner,

vs.
HON. COURT OF APPEALS and ARTHUR SCALZO, respondents.

DECISION

VITUG, J.:

Sometime in May 1986, an Information for violation of Section 4 of Republic Act No. 6425, otherwise also known as
the "Dangerous Drugs Act of 1972," was filed against petitioner Khosrow Minucher and one Abbas Torabian with the
Regional Trial Court, Branch 151, of Pasig City. The criminal charge followed a "buy-bust operation" conducted by
the Philippine police narcotic agents in the house of Minucher, an Iranian national, where a quantity of heroin, a
prohibited drug, was said to have been seized. The narcotic agents were accompanied by private respondent Arthur
Scalzo who would, in due time, become one of the principal witnesses for the prosecution. On 08 January 1988,
Presiding Judge Eutropio Migrino rendered a decision acquitting the two accused.

On 03 August 1988, Minucher filed Civil Case No. 88-45691 before the Regional Trial Court (RTC), Branch 19, of
Manila for damages on account of what he claimed to have been trumped-up charges of drug trafficking made by
Arthur Scalzo. The Manila RTC detailed what it had found to be the facts and circumstances surrounding the case.

"The testimony of the plaintiff disclosed that he is an Iranian national. He came to the Philippines to study in the
University of the Philippines in 1974. In 1976, under the regime of the Shah of Iran, he was appointed Labor Attaché
for the Iranian Embassies in Tokyo, Japan and Manila, Philippines. When the Shah of Iran was deposed by Ayatollah
Khomeini, plaintiff became a refugee of the United Nations and continued to stay in the Philippines. He headed the
Iranian National Resistance Movement in the Philippines.

"He came to know the defendant on May 13, 1986, when the latter was brought to his house and introduced to him
by a certain Jose Iñigo, an informer of the Intelligence Unit of the military. Jose Iñigo, on the other hand, was met by
plaintiff at the office of Atty. Crisanto Saruca, a lawyer for several Iranians whom plaintiff assisted as head of the anti-
Khomeini movement in the Philippines.

"During his first meeting with the defendant on May 13, 1986, upon the introduction of Jose Iñigo, the defendant
expressed his interest in buying caviar. As a matter of fact, he bought two kilos of caviar from plaintiff and paid
P10,000.00 for it. Selling caviar, aside from that of Persian carpets, pistachio nuts and other Iranian products was his
business after the Khomeini government cut his pension of over $3,000.00 per month. During their introduction in that
meeting, the defendant gave the plaintiff his calling card, which showed that he is working at the US Embassy in the
Philippines, as a special agent of the Drug Enforcement Administration, Department of Justice, of the United States,
and gave his address as US Embassy, Manila. At the back of the card appears a telephone number in defendant’s
own handwriting, the number of which he can also be contacted.

"It was also during this first meeting that plaintiff expressed his desire to obtain a US Visa for his wife and the wife of
a countryman named Abbas Torabian. The defendant told him that he [could] help plaintiff for a fee of $2,000.00 per
visa. Their conversation, however, was more concentrated on politics, carpets and caviar. Thereafter, the defendant
promised to see plaintiff again.

"On May 19, 1986, the defendant called the plaintiff and invited the latter for dinner at Mario's Restaurant at Makati.
He wanted to buy 200 grams of caviar. Plaintiff brought the merchandize but for the reason that the defendant was
not yet there, he requested the restaurant people to x x x place the same in the refrigerator. Defendant, however,
came and plaintiff gave him the caviar for which he was paid. Then their conversation was again focused on politics
and business.

"On May 26, 1986, defendant visited plaintiff again at the latter's residence for 18 years at Kapitolyo, Pasig. The
defendant wanted to buy a pair of carpets which plaintiff valued at $27,900.00. After some haggling, they agreed at
$24,000.00. For the reason that defendant did not yet have the money, they agreed that defendant would come back
the next day. The following day, at 1:00 p.m., he came back with his $24,000.00, which he gave to the plaintiff, and
the latter, in turn, gave him the pair of carpets.
1awphi1.nét

"At about 3:00 in the afternoon of May 27, 1986, the defendant came back again to plaintiff's house and directly
proceeded to the latter's bedroom, where the latter and his countryman, Abbas Torabian, were playing chess. Plaintiff
opened his safe in the bedroom and obtained $2,000.00 from it, gave it to the defendant for the latter's fee in obtaining
a visa for plaintiff's wife. The defendant told him that he would be leaving the Philippines very soon and requested him
to come out of the house for a while so that he can introduce him to his cousin waiting in a cab. Without much ado,
and without putting on his shirt as he was only in his pajama pants, he followed the defendant where he saw a parked
cab opposite the street. To his complete surprise, an American jumped out of the cab with a drawn high-powered gun.
He was in the company of about 30 to 40 Filipino soldiers with 6 Americans, all armed. He was handcuffed and after
about 20 minutes in the street, he was brought inside the house by the defendant. He was made to sit down while in
handcuffs while the defendant was inside his bedroom. The defendant came out of the bedroom and out from
defendant's attaché case, he took something and placed it on the table in front of the plaintiff. They also took plaintiff's
wife who was at that time at the boutique near his house and likewise arrested Torabian, who was playing chess with
him in the bedroom and both were handcuffed together. Plaintiff was not told why he was being handcuffed and why
the privacy of his house, especially his bedroom was invaded by defendant. He was not allowed to use the telephone.
In fact, his telephone was unplugged. He asked for any warrant, but the defendant told him to `shut up.’ He was
nevertheless told that he would be able to call for his lawyer who can defend him.

"The plaintiff took note of the fact that when the defendant invited him to come out to meet his cousin, his safe was
opened where he kept the $24,000.00 the defendant paid for the carpets and another $8,000.00 which he also placed
in the safe together with a bracelet worth $15,000.00 and a pair of earrings worth $10,000.00. He also discovered
missing upon his release his 8 pieces hand-made Persian carpets, valued at $65,000.00, a painting he bought for
P30,000.00 together with his TV and betamax sets. He claimed that when he was handcuffed, the defendant took his
keys from his wallet. There was, therefore, nothing left in his house.

"That his arrest as a heroin trafficker x x x had been well publicized throughout the world, in various newspapers,
particularly in Australia, America, Central Asia and in the Philippines. He was identified in the papers as an
international drug trafficker. x x x

In fact, the arrest of defendant and Torabian was likewise on television, not only in the Philippines, but also in America
and in Germany. His friends in said places informed him that they saw him on TV with said news.

"After the arrest made on plaintiff and Torabian, they were brought to Camp Crame handcuffed together, where they
were detained for three days without food and water."1

During the trial, the law firm of Luna, Sison and Manas, filed a special appearance for Scalzo and moved for extension
of time to file an answer pending a supposed advice from the United States Department of State and Department of
Justice on the defenses to be raised. The trial court granted the motion. On 27 October 1988, Scalzo filed another
special appearance to quash the summons on the ground that he, not being a resident of the Philippines and the
action being one in personam, was beyond the processes of the court. The motion was denied by the court, in its
order of 13 December 1988, holding that the filing by Scalzo of a motion for extension of time to file an answer to the
complaint was a voluntary appearance equivalent to service of summons which could likewise be construed a waiver
of the requirement of formal notice. Scalzo filed a motion for reconsideration of the court order, contending that a
motion for an extension of time to file an answer was not a voluntary appearance equivalent to service of summons
since it did not seek an affirmative relief. Scalzo argued that in cases involving the United States government, as well
as its agencies and officials, a motion for extension was peculiarly unavoidable due to the need (1) for both the
Department of State and the Department of Justice to agree on the defenses to be raised and (2) to refer the case to
a Philippine lawyer who would be expected to first review the case. The court a quo denied the motion for
reconsideration in its order of 15 October 1989.

Scalzo filed a petition for review with the Court of Appeals, there docketed CA-G.R. No. 17023, assailing the denial.
In a decision, dated 06 October 1989, the appellate court denied the petition and affirmed the ruling of the trial court.
Scalzo then elevated the incident in a petition for review on certiorari, docketed G.R. No. 91173, to this Court. The
petition, however, was denied for its failure to comply with SC Circular No. 1-88; in any event, the Court added, Scalzo
had failed to show that the appellate court was in error in its questioned judgment.

Meanwhile, at the court a quo, an order, dated 09 February 1990, was issued (a) declaring Scalzo in default for his
failure to file a responsive pleading (answer) and (b) setting the case for the reception of evidence. On 12 March 1990,
Scalzo filed a motion to set aside the order of default and to admit his answer to the complaint. Granting the motion,
the trial court set the case for pre-trial. In his answer, Scalzo denied the material allegations of the complaint and
raised the affirmative defenses (a) of Minucher’s failure to state a cause of action in his complaint and (b) that Scalzo
had acted in the discharge of his official duties as being merely an agent of the Drug Enforcement Administration of
the United States Department of Justice. Scalzo interposed a counterclaim of P100,000.00 to answer for attorneys'
fees and expenses of litigation.

Then, on 14 June 1990, after almost two years since the institution of the civil case, Scalzo filed a motion to dismiss
the complaint on the ground that, being a special agent of the United States Drug Enforcement Administration, he
was entitled to diplomatic immunity. He attached to his motion Diplomatic Note No. 414 of the United States Embassy,
dated 29 May 1990, addressed to the Department of Foreign Affairs of the Philippines and a Certification, dated 11
June 1990, of Vice Consul Donna Woodward, certifying that the note is a true and faithful copy of its original. In an
order of 25 June 1990, the trial court denied the motion to dismiss.

On 27 July 1990, Scalzo filed a petition for certiorari with injunction with this Court, docketed G.R. No. 94257 and
entitled "Arthur W. Scalzo, Jr., vs. Hon. Wenceslao Polo, et al.," asking that the complaint in Civil Case No. 88-45691
be ordered dismissed. The case was referred to the Court of Appeals, there docketed CA-G.R. SP No. 22505, per
this Court’s resolution of 07 August 1990. On 31 October 1990, the Court of Appeals promulgated its decision
sustaining the diplomatic immunity of Scalzo and ordering the dismissal of the complaint against him. Minucher filed
a petition for review with this Court, docketed G.R. No. 97765 and entitled "Khosrow Minucher vs. the Honorable Court
of Appeals, et. al." (cited in 214 SCRA 242), appealing the judgment of the Court of Appeals. In a decision, dated 24
September 1992, penned by Justice (now Chief Justice) Hilario Davide, Jr., this Court reversed the decision of the
appellate court and remanded the case to the lower court for trial. The remand was ordered on the theses (a) that the
Court of Appeals erred in granting the motion to dismiss of Scalzo for lack of jurisdiction over his person without even
considering the issue of the authenticity of Diplomatic Note No. 414 and (b) that the complaint contained sufficient
allegations to the effect that Scalzo committed the imputed acts in his personal capacity and outside the scope of his
official duties and, absent any evidence to the contrary, the issue on Scalzo’s diplomatic immunity could not be taken
up.

The Manila RTC thus continued with its hearings on the case. On 17 November 1995, the trial court reached a
decision; it adjudged:

"WHEREFORE, and in view of all the foregoing considerations, judgment is hereby rendered for the plaintiff, who
successfully established his claim by sufficient evidence, against the defendant in the manner following:

"`Adjudging defendant liable to plaintiff in actual and compensatory damages of P520,000.00; moral damages in the
sum of P10 million; exemplary damages in the sum of P100,000.00; attorney's fees in the sum of P200,000.00 plus
costs.

`The Clerk of the Regional Trial Court, Manila, is ordered to take note of the lien of the Court on this judgment to
answer for the unpaid docket fees considering that the plaintiff in this case instituted this action as a pauper litigant.’"2

While the trial court gave credence to the claim of Scalzo and the evidence presented by him that he was a diplomatic
agent entitled to immunity as such, it ruled that he, nevertheless, should be held accountable for the acts complained
of committed outside his official duties. On appeal, the Court of Appeals reversed the decision of the trial court and
sustained the defense of Scalzo that he was sufficiently clothed with diplomatic immunity during his term of duty and
thereby immune from the criminal and civil jurisdiction of the "Receiving State" pursuant to the terms of the Vienna
Convention.

Hence, this recourse by Minucher. The instant petition for review raises a two-fold issue: (1) whether or not the doctrine
of conclusiveness of judgment, following the decision rendered by this Court in G.R. No. 97765, should have precluded
the Court of Appeals from resolving the appeal to it in an entirely different manner, and (2) whether or not Arthur
Scalzo is indeed entitled to diplomatic immunity.

The doctrine of conclusiveness of judgment, or its kindred rule of res judicata, would require 1) the finality of the prior
judgment, 2) a valid jurisdiction over the subject matter and the parties on the part of the court that renders it, 3) a
judgment on the merits, and 4) an identity of the parties, subject matter and causes of action. 3 Even while one of the
issues submitted in G.R. No. 97765 - "whether or not public respondent Court of Appeals erred in ruling that private
respondent Scalzo is a diplomat immune from civil suit conformably with the Vienna Convention on Diplomatic
Relations" - is also a pivotal question raised in the instant petition, the ruling in G.R. No. 97765, however, has not
resolved that point with finality. Indeed, the Court there has made this observation -

"It may be mentioned in this regard that private respondent himself, in his Pre-trial Brief filed on 13 June 1990,
unequivocally states that he would present documentary evidence consisting of DEA records on his investigation and
surveillance of plaintiff and on his position and duties as DEA special agent in Manila. Having thus reserved his right
to present evidence in support of his position, which is the basis for the alleged diplomatic immunity, the barren self-
serving claim in the belated motion to dismiss cannot be relied upon for a reasonable, intelligent and fair resolution of
the issue of diplomatic immunity."4

Scalzo contends that the Vienna Convention on Diplomatic Relations, to which the Philippines is a signatory, grants
him absolute immunity from suit, describing his functions as an agent of the United States Drugs Enforcement Agency
as "conducting surveillance operations on suspected drug dealers in the Philippines believed to be the source of
prohibited drugs being shipped to the U.S., (and) having ascertained the target, (he then) would inform the Philippine
narcotic agents (to) make the actual arrest." Scalzo has submitted to the trial court a number of documents -

1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990;

2. Exh. '1' - Certification of Vice Consul Donna K. Woodward dated 11 June 1990;

3. Exh. '5' - Diplomatic Note No. 757 dated 25 October 1991;

4. Exh. '6' - Diplomatic Note No. 791 dated 17 November 1992; and

5. Exh. '7' - Diplomatic Note No. 833 dated 21 October 1988.

6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia, Legal Adviser, Department of Foreign Affairs, dated
27 June 1990 forwarding Embassy Note No. 414 to the Clerk of Court of RTC Manila, Branch 19 (the trial
court);

7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st Indorsement (Exh. '3'); and
 8. Exh. '8' - Letter dated 18 November 1992 from the Office of the Protocol, Department of Foreign Affairs,
through Asst. Sec. Emmanuel Fernandez, addressed to the Chief Justice of this Court.5

The documents, according to Scalzo, would show that: (1) the United States Embassy accordingly advised the
Executive Department of the Philippine Government that Scalzo was a member of the diplomatic staff of the United
States diplomatic mission from his arrival in the Philippines on 14 October 1985 until his departure on 10 August 1988;
(2) that the United States Government was firm from the very beginning in asserting the diplomatic immunity of Scalzo
with respect to the case pursuant to the provisions of the Vienna Convention on Diplomatic Relations; and (3) that the
United States Embassy repeatedly urged the Department of Foreign Affairs to take appropriate action to inform the
trial court of Scalzo’s diplomatic immunity. The other documentary exhibits were presented to indicate that: (1) the
Philippine government itself, through its Executive Department, recognizing and respecting the diplomatic status of
Scalzo, formally advised the "Judicial Department" of his diplomatic status and his entitlement to all diplomatic
privileges and immunities under the Vienna Convention; and (2) the Department of Foreign Affairs itself authenticated
Diplomatic Note No. 414. Scalzo additionally presented Exhibits "9" to "13" consisting of his reports of investigation
on the surveillance and subsequent arrest of Minucher, the certification of the Drug Enforcement Administration of the
United States Department of Justice that Scalzo was a special agent assigned to the Philippines at all times relevant
to the complaint, and the special power of attorney executed by him in favor of his previous counsel6 to show (a) that
the United States Embassy, affirmed by its Vice Consul, acknowledged Scalzo to be a member of the diplomatic staff
of the United States diplomatic mission from his arrival in the Philippines on 14 October 1985 until his departure on
10 August 1988, (b) that, on May 1986, with the cooperation of the Philippine law enforcement officials and in the
exercise of his functions as member of the mission, he investigated Minucher for alleged trafficking in a prohibited
drug, and (c) that the Philippine Department of Foreign Affairs itself recognized that Scalzo during his tour of duty in
the Philippines (14 October 1985 up to 10 August 1988) was listed as being an Assistant Attaché of the United States
diplomatic mission and accredited with diplomatic status by the Government of the Philippines. In his Exhibit 12,
Scalzo described the functions of the overseas office of the United States Drugs Enforcement Agency, i.e., (1) to
provide criminal investigative expertise and assistance to foreign law enforcement agencies on narcotic and drug
control programs upon the request of the host country, 2) to establish and maintain liaison with the host country and
counterpart foreign law enforcement officials, and 3) to conduct complex criminal investigations involving international
criminal conspiracies which affect the interests of the United States.

The Vienna Convention on Diplomatic Relations was a codification of centuries-old customary law and, by the time of
its ratification on 18 April 1961, its rules of law had long become stable. Among the city states of ancient Greece,
among the peoples of the Mediterranean before the establishment of the Roman Empire, and among the states of
India, the person of the herald in time of war and the person of the diplomatic envoy in time of peace were universally
held sacrosanct.7 By the end of the 16th century, when the earliest treatises on diplomatic law were published, the
inviolability of ambassadors was firmly established as a rule of customary international law.8Traditionally, the exercise
of diplomatic intercourse among states was undertaken by the head of state himself, as being the preeminent
embodiment of the state he represented, and the foreign secretary, the official usually entrusted with the external
affairs of the state. Where a state would wish to have a more prominent diplomatic presence in the receiving state, it
would then send to the latter a diplomatic mission. Conformably with the Vienna Convention, the functions of the
diplomatic mission involve, by and large, the representation of the interests of the sending state and promoting friendly
relations with the receiving state.9

The Convention lists the classes of heads of diplomatic missions to include (a) ambassadors or nuncios accredited to
the heads of state,10 (b) envoys,11 ministers or internuncios accredited to the heads of states; and (c) charges d'
affairs12 accredited to the ministers of foreign affairs.13 Comprising the "staff of the (diplomatic) mission" are the
diplomatic staff, the administrative staff and the technical and service staff. Only the heads of missions, as well as
members of the diplomatic staff, excluding the members of the administrative, technical and service staff of the
mission, are accorded diplomatic rank. Even while the Vienna Convention on Diplomatic Relations provides for
immunity to the members of diplomatic missions, it does so, nevertheless, with an understanding that the same be
restrictively applied. Only "diplomatic agents," under the terms of the Convention, are vested with blanket diplomatic
immunity from civil and criminal suits. The Convention defines "diplomatic agents" as the heads of missions or
members of the diplomatic staff, thus impliedly withholding the same privileges from all others. It might bear stressing
that even consuls, who represent their respective states in concerns of commerce and navigation and perform certain
administrative and notarial duties, such as the issuance of passports and visas, authentication of documents, and
administration of oaths, do not ordinarily enjoy the traditional diplomatic immunities and privileges accorded diplomats,
mainly for the reason that they are not charged with the duty of representing their states in political matters. Indeed,
the main yardstick in ascertaining whether a person is a diplomat entitled to immunity is the determination of whether
or not he performs duties of diplomatic nature.

Scalzo asserted, particularly in his Exhibits "9" to "13," that he was an Assistant Attaché of the United States diplomatic
mission and was accredited as such by the Philippine Government. An attaché belongs to a category of officers in the
diplomatic establishment who may be in charge of its cultural, press, administrative or financial affairs. There could
also be a class of attaches belonging to certain ministries or departments of the government, other than the foreign
ministry or department, who are detailed by their respective ministries or departments with the embassies such as the
military, naval, air, commercial, agricultural, labor, science, and customs attaches, or the like. Attaches assist a chief
of mission in his duties and are administratively under him, but their main function is to observe, analyze and interpret
trends and developments in their respective fields in the host country and submit reports to their own ministries or
departments in the home government.14 These officials are not generally regarded as members of the diplomatic
mission, nor are they normally designated as having diplomatic rank.
In an attempt to prove his diplomatic status, Scalzo presented Diplomatic Notes Nos. 414, 757 and 791, all issued
post litem motam, respectively, on 29 May 1990, 25 October 1991 and 17 November 1992. The presentation did
nothing much to alleviate the Court's initial reservations in G.R. No. 97765, viz:

"While the trial court denied the motion to dismiss, the public respondent gravely abused its discretion in dismissing
Civil Case No. 88-45691 on the basis of an erroneous assumption that simply because of the diplomatic note, the
private respondent is clothed with diplomatic immunity, thereby divesting the trial court of jurisdiction over his person.

"x x x x x x x x x

"And now, to the core issue - the alleged diplomatic immunity of the private respondent. Setting aside for the moment
the issue of authenticity raised by the petitioner and the doubts that surround such claim, in view of the fact that it took
private respondent one (1) year, eight (8) months and seventeen (17) days from the time his counsel filed on 12
September 1988 a Special Appearance and Motion asking for a first extension of time to file the Answer because the
Departments of State and Justice of the United States of America were studying the case for the purpose of
determining his defenses, before he could secure the Diplomatic Note from the US Embassy in Manila, and even
granting for the sake of argument that such note is authentic, the complaint for damages filed by petitioner cannot be
peremptorily dismissed.

"x x x x x x x x x

"There is of course the claim of private respondent that the acts imputed to him were done in his official capacity.
Nothing supports this self-serving claim other than the so-called Diplomatic Note. x x x. The public respondent then
should have sustained the trial court's denial of the motion to dismiss. Verily, it should have been the most proper and
appropriate recourse. It should not have been overwhelmed by the self-serving Diplomatic Note whose belated
issuance is even suspect and whose authenticity has not yet been proved. The undue haste with which respondent
Court yielded to the private respondent's claim is arbitrary."

A significant document would appear to be Exhibit No. 08, dated 08 November 1992, issued by the Office of Protocol
of the Department of Foreign Affairs and signed by Emmanuel C. Fernandez, Assistant Secretary, certifying that "the
records of the Department (would) show that Mr. Arthur W. Scalzo, Jr., during his term of office in the Philippines (from
14 October 1985 up to 10 August 1988) was listed as an Assistant Attaché of the United States diplomatic mission
and was, therefore, accredited diplomatic status by the Government of the Philippines." No certified true copy of such
"records," the supposed bases for the belated issuance, was presented in evidence.

Concededly, vesting a person with diplomatic immunity is a prerogative of the executive branch of the government. In
World Health Organization vs. Aquino,15 the Court has recognized that, in such matters, the hands of the courts are
virtually tied. Amidst apprehensions of indiscriminate and incautious grant of immunity, designed to gain exemption
from the jurisdiction of courts, it should behoove the Philippine government, specifically its Department of Foreign
Affairs, to be most circumspect, that should particularly be no less than compelling, in its post litem motam issuances.
It might be recalled that the privilege is not an immunity from the observance of the law of the territorial sovereign or
from ensuing legal liability; it is, rather, an immunity from the exercise of territorial jurisdiction. 16 The government of
the United States itself, which Scalzo claims to be acting for, has formulated its standards for recognition of a
diplomatic agent. The State Department policy is to only concede diplomatic status to a person who possesses an
acknowledged diplomatic title and "performs duties of diplomatic nature." 17 Supplementary criteria for accreditation
are the possession of a valid diplomatic passport or, from States which do not issue such passports, a diplomatic note
formally representing the intention to assign the person to diplomatic duties, the holding of a non-immigrant visa, being
over twenty-one years of age, and performing diplomatic functions on an essentially full-time basis.18 Diplomatic
missions are requested to provide the most accurate and descriptive job title to that which currently applies to the
duties performed. The Office of the Protocol would then assign each individual to the appropriate functional category.19

But while the diplomatic immunity of Scalzo might thus remain contentious, it was sufficiently established that, indeed,
he worked for the United States Drug Enforcement Agency and was tasked to conduct surveillance of suspected drug
activities within the country on the dates pertinent to this case. If it should be ascertained that Arthur Scalzo was acting
well within his assigned functions when he committed the acts alleged in the complaint, the present controversy could
then be resolved under the related doctrine of State Immunity from Suit.

The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of customary
international law then closely identified with the personal immunity of a foreign sovereign from suit20 and, with the
emergence of democratic states, made to attach not just to the person of the head of state, or his representative, but
also distinctly to the state itself in its sovereign capacity.21 If the acts giving rise to a suit are those of a foreign
government done by its foreign agent, although not necessarily a diplomatic personage, but acting in his official
capacity, the complaint could be barred by the immunity of the foreign sovereign from suit without its consent. Suing
a representative of a state is believed to be, in effect, suing the state itself. The proscription is not accorded for the
benefit of an individual but for the State, in whose service he is, under the maxim - par in parem, non habet imperium
- that all states are sovereign equals and cannot assert jurisdiction over one another.22 The implication, in broad terms,
is that if the judgment against an official would require the state itself to perform an affirmative act to satisfy the award,
such as the appropriation of the amount needed to pay the damages decreed against him, the suit must be regarded
as being against the state itself, although it has not been formally impleaded.23
In United States of America vs. Guinto,24 involving officers of the United States Air Force and special officers of the
Air Force Office of Special Investigators charged with the duty of preventing the distribution, possession and use of
prohibited drugs, this Court has ruled -

"While the doctrine (of state immunity) appears to prohibit only suits against the state without its consent, it is also
applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of
their duties. x x x. It cannot for a moment be imagined that they were acting in their private or unofficial capacity when
they apprehended and later testified against the complainant. It follows that for discharging their duties as agents of
the United States, they cannot be directly impleaded for acts imputable to their principal, which has not given its
consent to be sued. x x x As they have acted on behalf of the government, and within the scope of their authority, it is
that government, and not the petitioners personally, [who were] responsible for their acts."25

This immunity principle, however, has its limitations. Thus, Shauf vs. Court of Appeals26 elaborates:

"It is a different matter where the public official is made to account in his capacity as such for acts contrary to law and
injurious to the rights of the plaintiff. As was clearly set forth by Justice Zaldivar in Director of the Bureau of
Telecommunications, et al., vs. Aligaen, et al. (33 SCRA 368): `Inasmuch as the State authorizes only legal acts by
its officers, unauthorized acts of government officials or officers are not acts of the State, and an action against the
officials or officers by one whose rights have been invaded or violated by such acts, for the protection of his rights, is
not a suit against the State within the rule of immunity of the State from suit. In the same tenor, it has been said that
an action at law or suit in equity against a State officer or the director of a State department on the ground that, while
claiming to act for the State, he violates or invades the personal and property rights of the plaintiff, under an
unconstitutional act or under an assumption of authority which he does not have, is not a suit against the State within
the constitutional provision that the State may not be sued without its consent. The rationale for this ruling is that the
doctrine of state immunity cannot be used as an instrument for perpetrating an injustice.

"x x x x x x x x x

"(T)he doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in
his private and personal capacity as an ordinary citizen. The cloak of protection afforded the officers and agents of
the government is removed the moment they are sued in their individual capacity. This situation usually arises where
the public official acts without authority or in excess of the powers vested in him. It is a well-settled principle of law
that a public official may be liable in his personal private capacity for whatever damage he may have caused by his
act done with malice and in bad faith or beyond the scope of his authority and jurisdiction."27

A foreign agent, operating within a territory, can be cloaked with immunity from suit but only as long as it can be
established that he is acting within the directives of the sending state. The consent of the host state is an indispensable
requirement of basic courtesy between the two sovereigns. Guinto and Shauf both involve officers and personnel of
the United States, stationed within Philippine territory, under the RP-US Military Bases Agreement. While evidence is
wanting to show any similar agreement between the governments of the Philippines and of the United States (for the
latter to send its agents and to conduct surveillance and related activities of suspected drug dealers in the Philippines),
the consent or imprimatur of the Philippine government to the activities of the United States Drug Enforcement
Agency, however, can be gleaned from the facts heretofore elsewhere mentioned. The official exchanges of
communication between agencies of the government of the two countries, certifications from officials of both the
Philippine Department of Foreign Affairs and the United States Embassy, as well as the participation of members of
the Philippine Narcotics Command in the "buy-bust operation" conducted at the residence of Minucher at the behest
of Scalzo, may be inadequate to support the "diplomatic status" of the latter but they give enough indication that the
Philippine government has given its imprimatur, if not consent, to the activities within Philippine territory of agent
Scalzo of the United States Drug Enforcement Agency. The job description of Scalzo has tasked him to conduct
surveillance on suspected drug suppliers and, after having ascertained the target, to inform local law enforcers who
would then be expected to make the arrest. In conducting surveillance activities on Minucher, later acting as the
poseur-buyer during the buy-bust operation, and then becoming a principal witness in the criminal case against
Minucher, Scalzo hardly can be said to have acted beyond the scope of his official function or duties.

All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of the United States Drug
Enforcement Agency allowed by the Philippine government to conduct activities in the country to help contain the
problem on the drug traffic, is entitled to the defense of state immunity from suit.

WHEREFORE, on the foregoing premises, the petition is DENIED. No costs.

SO ORDERED.

G.R. No. L-35131 November 29, 1972

THE WORLD HEALTH ORGANIZATION and DR. LEONCE VERSTUYFT, petitioners,

vs.
HON. BENJAMIN H. AQUINO, as Presiding Judge of Branch VIII, Court of First Instance of Rizal, MAJOR
WILFREDO CRUZ, MAJOR ANTONIO G. RELLEVE, and CAPTAIN PEDRO S. NAVARRO of the Constabulary
Offshore Action Center (COSAC), respondents.
Sycip, Salazar, Luna, Manalo and Feliciano for petitioners.

Emilio L. Baldia for respondents.

TEEHANKEE, J.:p

An original action for certiorari and prohibition to set aside respondent judge's refusal to quash a search warrant issued
by him at the instance of respondents COSAC (Constabulary Offshore Action Center) officers for the search and
seizure of the personal effects of petitioner official of the WHO (World Health Organization) notwithstanding his being
entitled to diplomatic immunity, as duly recognized by the executive branch of the Philippine Government and to
prohibit respondent judge from further proceedings in the matter.

Upon filing of the petition, the Court issued on June 6, 1972 a restraining order enjoining respondents from executing
the search warrant in question.

Respondents COSAC officers filed their answer joining issue against petitioners and seeking to justify their act of
applying for and securing from respondent judge the warrant for the search and seizure of ten crates consigned to
petitioner Verstuyft and stored at the Eternit Corporation warehouse on the ground that they "contain large quantities
of highly dutiable goods" beyond the official needs of said petitioner "and the only lawful way to reach these articles
and effects for purposes of taxation is through a search warrant." 1

The Court thereafter called for the parties' memoranda in lieu of oral argument, which were filed on August 3, 1972
by respondents and on August 21, 1972 by petitioners, and the case was thereafter deemed submitted for decision.

It is undisputed in the record that petitioner Dr. Leonce Verstuyft, who was assigned on December 6, 1971 by the
WHO from his last station in Taipei to the Regional Office in Manila as Acting Assistant Director of Health Services, is
entitled to diplomatic immunity, pursuant to the Host Agreement executed on July 22, 1951 between the Philippine
Government and the World Health Organization.

Such diplomatic immunity carries with it, among other diplomatic privileges and immunities, personal inviolability,
inviolability of the official's properties, exemption from local jurisdiction, and exemption from taxation and customs
duties.

When petitioner Verstuyft's personal effects contained in twelve (12) crates entered the Philippines as unaccompanied
baggage on January 10, 1972, they were accordingly allowed free entry from duties and taxes. The crates were
directly stored at the Eternit Corporation's warehouse at Mandaluyong, Rizal, "pending his relocation into permanent
quarters upon the offer of Mr. Berg, Vice President of Eternit who was once a patient of Dr. Verstuyft in the Congo." 2

Nevertheless, as above stated, respondent judge issued on March 3, 1972 upon application on the same date of
respondents COSAC officers search warrant No. 72-138 for alleged violation of Republic Act 4712 amending section
3601 of the Tariff and Customs Code 3 directing the search and seizure of the dutiable items in said crates.

Upon protest of March 6, 1972 of Dr. Francisco Dy, WHO Regional Director for the Western Pacific with station in
Manila, Secretary of Foreign Affairs Carlos P. Romulo, personally wired on the same date respondent Judge advising
that "Dr. Verstuyft is entitled to immunity from search in respect of his personal baggage as accorded to members of
diplomatic missions" pursuant to the Host Agreement and requesting suspension of the search warrant order "pending
clarification of the matter from the ASAC."

Respondent judge set the Foreign Secretary's request for hearing and heard the same on March 16, 1972, but
notwithstanding the official plea of diplomatic immunity interposed by a duly authorized representative of the
Department of Foreign Affairs who furnished the respondent judge with a list of the articles brought in by petitioner
Verstuyft, respondent judge issued his order of the same date maintaining the effectivity of the search warrant issued
by him, unless restrained by a higher court. 4

Petitioner Verstuyft's special appearance on March 24, 1972 for the limited purpose of pleading his diplomatic
immunity and motion to quash search warrant of April 12, 1972 failed to move respondent judge.

At the hearing thereof held on May 8, 1972, the Office of the Solicitor General appeared and filed an extended
comment stating the official position of the executive branch of the Philippine Government that petitioner Verstuyft is
entitled to diplomatic immunity, he did not abuse his diplomatic immunity, 5 and that court proceedings in the receiving
6
or host State are not the proper remedy in the case of abuse of diplomatic immunity.

The Solicitor General accordingly joined petitioner Verstuyft's prayer for the quashal of the search warrant.
Respondent judge nevertheless summarily denied quashal of the search warrant per his order of May 9, 1972 "for the
same reasons already stated in (his) aforesaid order of March 16, 1972" disregarding Foreign Secretary Romulo's
plea of diplomatic immunity on behalf of Dr. Verstuyft.
Hence, the petition at bar. Petitioner Verstuyft has in this Court been joined by the World Health Organization (WHO)
itself in full assertion of petitioner Verstuyft's being entitled "to all privileges and immunities, exemptions and facilities
accorded to diplomatic envoys in accordance with international law" under section 24 of the Host Agreement.

The writs of certiorari and prohibition should issue as prayed for.

1. The executive branch of the Philippine Government has expressly recognized that petitioner Verstuyft is entitled to
diplomatic immunity, pursuant to the provisions of the Host Agreement. The Department of Foreign Affairs formally
advised respondent judge of the Philippine Government's official position that accordingly "Dr. Verstuyft cannot be the
subject of a Philippine court summons without violating an obligation in international law of the Philippine Government"
and asked for the quashal of the search warrant, since his personal effects and baggages after having been allowed
free entry from all customs duties and taxes, may not be baselessly claimed to have been "unlawfully imported" in
violation of the tariff and customs code as claimed by respondents COSAC officers. The Solicitor-General, as principal
law officer of the Government, 7 likewise expressly affirmed said petitioner's right to diplomatic immunity and asked for the
quashal of the search warrant.

It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity
is essentially a political question and courts should refuse to look beyond a determination by the executive branch of
the government, 8 and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the
government as in the case at bar, it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion
by the principal law officer of the government, the Solicitor General in this case, or other officer acting under his
direction. 9 Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction by seizure and
detention of property, as to embarrass the executive arm of the government in conducting foreign relations, it is accepted
doctrine that "in such cases the judicial department of (this) government follows the action of the political branch and will
not embarrass the latter by assuming an antagonistic jurisdiction." 10

2. The unfortunate fact that respondent judge chose to rely on the suspicion of respondents COSAC officers "that the
other remaining crates unopened contain contraband items" 11 rather than on the categorical assurance of the Solicitor-
General that petitioner Verstuyft did not abuse his diplomatic immunity, 12 which was based in turn on the official positions
taken by the highest executive officials with competence and authority to act on the matter, namely, the Secretaries of
Foreign Affairs and of Finance, could not justify respondent judge's denial of the quashal of the search warrant.

As already stated above, and brought to respondent court's attention, 13 the Philippine Government is bound by the
procedure laid down in Article VII of the Convention on the Privileges and Immunities of the Specialized Agencies of the
United Nations 14 for consultations between the Host State and the United Nations agency concerned to determine, in the
first instance the fact of occurrence of the abuse alleged, and if so, to ensure that no repetition occurs and for other
recourses. This is a treaty commitment voluntarily assumed by the Philippine Government and as such, has the force and
effect of law.

Hence, even assuming arguendo as against the categorical assurance of the executive branch of government that
respondent judge had some ground to prefer respondents COSAC officers' suspicion that there had been an abuse
of diplomatic immunity, the continuation of the search warrant proceedings before him was not the proper remedy. He
should, nevertheless, in deference to the exclusive competence and jurisdiction of the executive branch of government
to act on the matter, have acceded to the quashal of the search warrant, and forwarded his findings or grounds to
believe that there had been such abuse of diplomatic immunity to the Department of Foreign Affairs for it to deal with,
in accordance with the aforementioned Convention, if so warranted.

3. Finally, the Court has noted with concern the apparent lack of coordination between the various departments
involved in the subject-matter of the case at bar, which made it possible for a small unit, the COSAC, to which
respondents officers belong, seemingly to disregard and go against the authoritative determination and
pronouncements of both the Secretaries of Foreign Affairs and of Finance that petitioner Verstuyft is entitled to
diplomatic immunity, as confirmed by the Solicitor-General as the principal law officer of the Government. Such
executive determination properly implemented should have normally constrained respondents officers themselves to
obtain the quashal of the search warrant secured by them rather than oppose such quashal up to this Court, to the
embarrassment of said department heads, if not of the Philippine Government itself vis a vis the petitioners. 15

The seriousness of the matter is underscored when the provisions of Republic Act 75 enacted since October 21, 1946
to safeguard the jurisdictional immunity of diplomatic officials in the Philippines are taken into account. Said Act
declares as null and void writs or processes sued out or prosecuted whereby inter alia the person of an ambassador
or public minister is arrested or imprisoned or his goods or chattels are seized or attached and makes it a penal
offense for "every person by whom the same is obtained or prosecuted, whether as party or as attorney, and every
officer concerned in executing it" to obtain or enforce such writ or process. 16

The Court, therefore, holds that respondent judge acted without jurisdiction and with grave abuse of discretion in not
ordering the quashal of the search warrant issued by him in disregard of the diplomatic immunity of petitioner Verstuyft.

ACCORDINGLY, the writs of certiorari and prohibition prayed for are hereby granted, and the temporary restraining
order heretofore issued against execution or enforcement of the questioned search warrant, which is hereby declared
null and void, is hereby made permanent. The respondent court is hereby commanded to desist from further
proceedings in the matter. No costs, none having been prayed for.
The clerk of court is hereby directed to furnish a copy of this decision to the Secretary of Justice for such action as he
may find appropriate with regard to the matters mentioned in paragraph 3 hereof. So ordered.

G.R. No. 100311 May 18, 1993

JUANITO LIM, petitioner,

vs.

THE COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES, respondents.

Armando S. Kho for petitioner.

MELO, J.:
What makes the case at bar an interesting subject for study is the dearth of jurisprudence involving violations of the
Anti-Fencing Law of 1979 or Presidential Decree No. 1612.

Inasmuch as the appellant below was not able to overthrow the presumption of fencing embodied under Section 5 of
the law in point, his conviction for the misdeed, as rendered by the trial court, was affirmed by respondent Court of
Appeals, through Justice Gloria Paras with whom Justices Elbinias and Abad Santos, Jr. concurred (p. 27, Rollo).

Hence, the petition before us which resolves on the ensuing backdrop culled from the text of the decision appealed
from:

From the decision dated March 20, 1989 in Criminal Case No. 7526 entitled "People of the
Philippines vs. Juanito Lim," the dispositive portion of which states:

WHEREFORE, premises considered, judgment is hereby rendered finding accused

guilty beyond reasonable doubt of violating PD 1612 (Anti-Fencing Law) and
consequently, pursuant to Sec. 3 (a) of said PD 1612 and the provisions of the
Indeterminate Sentence Law, he is hereby sentenced to serve imprisonment ranging
from 8 years of Prision Mayor as minimum to 14 years, 8 months and 1 day of reclusion
temporal as maximum with the accessories of the law and to pay the private offended
party the sum of P206,320.00 minus the value of the spare parts recovered and in the
possession of Sgt. Dabaitan, without however, subsidiary imprisonment in case of
insolvency.

SO ORDERED.

the accused appealed to this Court.

Juanito Lim, the accused, was charged in an information with violation of PD 1612 (Anti-Fencing Law)
which was allegedly committed as follows:

That on or about March, 1986, in the City of Cagayan de Oro, Philippines, and within
the jurisdiction of this Honorable Court, the abovenamed accused, with intent to gain
for himself or for another, did then and there willfully, unlawfully and feloniously
receive, possess, keep and acquire, or deal with the following spare parts and item, to
wit:

xxx xxx xxx

the said spare parts and items being owned by and belonging to one Loui Anton Bond,
well knowing that the same were stolen or should be known to him to have been
derived from the proceeds of the crime of Theft, but inspite of such knowledge,
accused allowed the same to be stored or kept in his bodega and subsequently bought
or disposed of the nine (9) pieces of tires with rims, to the damage and prejudice of
the offended party Loui Anton Bond in the total amount of P206,320.00, Philippine
Currency.

Contrary to and in violation of P.D. 1612.

A plea of "not guilty" was entered by the accused upon the arraignment.

The evidence of the prosecution tried to establish that Sergio Pabilona had vacated his house in
Barangay Tiglimao, Cagayan de Oro City, because of the worsening communist insurgency problem
in that barangay, of which he used to be the barangay captain; that he had taken temporary residence
in Barangay Pagatpat, also of Cagayan de Oro City (t.s.n., September 22, 1987, p. 1); that on or about
noon of March 1, 1986, Pabilona and the eight men he had requested to help him retrieve his
belongings in his house in Barangay Tiglimao, converged at the residence his Sgt. Delfin Bacalso at
Lapasan, Cagayan de Oro City; that Sgt. Bacalso and nine other constabulary soldiers, with the former
as leader, were to escort Pabilona and his men in going to Barangay Tiglimao; that Pabilona had
earlier requested for such a military escort (id., p. 5); that soon after, a Mercedes Benz truck, owned
by accused Juanito Lim, arrived; that it was Sgt. Bacalso who contracted for the truck because,
according to him, he too had some lumber to load in Barangay Taglimao; that Pabilona had earlier
given Sgt. Bacalso P600.00 for truck rental (id., p. 6); that at about 2:00 p.m. Pabilona, his men and
their military escort left Lapasan on board the Mercedes Benz truck for Barangay Taglimao, arriving
thereat at about 5:00 o'clock that same afternoon; that after they have rested for a while, Pabilona
then ordered his men to gather his belongings inside his house, but he was stopped by Sgt. Bacalso
who wanted that they first proceed to the next barangay, Barangay Tuburan, because his lumber were
allegedly there; that Pabilona protested because his request for military escort was only up to
Barangay Taglimao; that he was prevailed upon by Sgt. Bacalso to first proceed to Barangay Tuburan
(tsn., id., p. 7); that upon arriving in Barangay Tuburan, Sgt. Bacalso ordered the men of Pabilona to
 proceed to the compound of ECG Mining Corporation and to remove from the heavy equipment found
therein their parts; that he also ordered them to unload and to carry with them the acetylene equipment
owned by accused-appellant Juanito Lim which was covered by canvass on board the truck; that as it
was already dark, and afraid of being bitten by snakes, the men of Pabilona started removing the parts
of the heavy equipment only in the early morning the following day, March 2, 1986; that their job having
been done, they brought the various heavy equipment parts, among which were nine tires with rims,
to the Mercedes Benz truck and loaded them thereon; that Pabilona, his men and their military escort
repaired back to Barangay Taglimao and loaded the personal belongings of Pabilona; that they then
drove back to Lapasan, stopping at the "bodega" of accused Juanito Lim which was located a few
meters away from the residence of Sgt. Bacalso; that long after their arrival, accused Juanito Lim also
arrived on board his pick-up vehicle; that Sgt. Bacalso then ordered the men of Pabilona to unload
acetylene equipment and the various heavy equipment parts and to deposit them inside the "bodega"
of accused Juanito Lim, after which the latter ordered that his "bodega" be closed; that Pabilona and
his men then rode on the truck again and proceeded to barangay Pagatpat where they unloaded the
personal belongings of Pabilona; that the following morning, the men of Pabilona went to the house of
Sgt. Bacalso, as they were told by the latter to do so, but Sgt. Bacalso was out of his house; that while
waiting for Sgt. Bacalso, the men of Pabilona saw the accused arrived at his "bodega" on board his
yellow pick-up vehicle; that they then saw the accused remove from his "bodega" the nine tires with
rims, load them on his yellow pick-up vehicle and then drive away; that soon after, Sgt. Bacalso arrived,
only to tell the men waiting for him that they have nothing more to collect from him because they
already incurred an overdraft, so, the men left for their respective homes; that at the time the heavy
equipment was being cannibalized, the President and General Manager of BCG Mining Corporation,
Loui Anton Bond, an Australian national, was being held captive by the New People's Army, however,
after his release in June 1986, he immediately reported to the police authorities the thievery committed
in his company's compound in Barangay Tuburan; that he also caused to be estimated by Engr.
Kionisala the value of the items taken from the heavy equipment; that Engr. Kionisala placed the total
value of the items taken at P470,310.00; and that Sgt. Dabatian, of the Cagayan de Oro City Police,
conducted an investigation, which culminated in the filing of the instant case by the City Fiscal against
accused Juanito Lim for violation of Presidential Decree No. 1612.

Aside from denying the commission of the offense charged, the accused also set up the defense of
alibi, which the lower court did not believe.

The trial court found the accused guilty as charged and sentence him accordingly.

A reconsideration of the aforesaid decision, which was sought by the accused, was denied by the
lower court in its Order dated May 3,
1989. . . (pp. 27-30, Rollo.)

Inculpation of petitioner was anchored on the principal observation that the witnesses who testified against him had
no ulterior motive to prevaricate which rendered their testimony worthy of credence when juxtaposed with petitioner's
defense of denial and alibi. Respondent court also did not see it fit to reverse the court of origin just because the
witnesses against petitioner were not included as co-defendants because as observed also by the trial court, petitioner
did not bother to impugn the resolution of the inquest fiscal who conducted the preliminary investigation.

On the absence of the so-called evidence to indicate that it was petitioner who sold or disposed of the spare parts
recovered from a store named Basic Diesel Parts, respondent court remarked:

In the case at bar, the prosecution has duly proved that the appellant had dealt with the stolen items
and had possession of the same because the said spare parts and tires which were the subject of
thievery or robbery for they were removed from the heavy equipment of Loui Bond, the private
complainant, without the latter's knowledge and consent, were unloaded from the truck of the appellant
and kept in his bodega. And appellant was present during such unloading and had even ordered the
bodega closed after such unloading to his bodega.

Under such duly proven facts and circumstances, there is the presumption of fencing on the part of
the appellant as provided in the aforequoted Sec. 5 of PD 1612.

The appellant has not destroyed the aforesaid presumption. And the charge against him was further
strengthened by the facts and circumstances that he owned the truck that transported the removed
spare parts from barangay Tuburan to his bodega; that the said vehicle which was allegedly hired to
transport the belongings of Pabilona at Barangay Taglimao to his place at Pagatpat did not
immediately proceed to Pagatpat to unload Pabilona's things; instead, from Taglimao the truck
proceeded immediately to the appellant's bodega; that he owned the acetylene equipment that was
used to detach the spare parts from the heavy equipment of the private complainant and the said
acetylene equipment was also unloaded at the bodega of the appellant; that the following morning
after the said spare parts, acetylene equipment and tires were deposited in his bodega, he brought
out the said tires from his bodega and loaded them in his pick-up vehicle; and his bodega in near the
house of Sgt. Bacalso. (p. 32, Rollo.)
With respect to petitioner's argument that the Anti-Fencing Law does not contemplate the inclusion of civil liability as
part of the penalty for violation thereof, respondent court opined that when he was instructed to pay the sum of
P206,320.00 less the value of the spare parts recovered, such imposition refers to his civil liability, in line with the
penal axiom that a person criminally liable is also civilly liable.

Did respondent court err in upholding the judgment of the trial court?

In his efforts to impress an affirmative response to this basic query, petitioner formulates four propositions which all
boil down to the ultimate issue of proof beyond reasonable doubt to support conviction.

Petitioner entertains a different perception on the alleged intrinsic substance of the People's evidence by suggesting
that the prosecution witnesses testified against him so that the private complainant would not press charges against
the prosecution witnesses. It is difficult to grasp petitioner's logic along this line because if this were so, then, every
accusing finger collectively pointed towards a single individual will have to be construed as a mere ploy to save one's
own skin against prosecution. Independently of petitioner's cold aspersion and delusion of paranoia, the pleadings
submitted to this Court hardly support his pretense. An unwarranted assumption expressed by petitioner must perforce
deserve scant consideration especially so when he candidly admitted that he does not know Navarro, Bahian and
Pabilona who took the witness stand (p. 31, Rollo).

To bolster petitioner's claim that the prosecution witnesses were the perpetrators of the crime of theft or robbery and
are thus polluted, a portion of private complainant Loui Anton Bond's statement was even lifted from the stenographic
notes:

Court:

Q. The NPA's told you about the cannibalization of your heavy equipment(s) ?

A. Correct, they told me that my heavy equipment(s) were cannibalized. When I was
released and came back to Cagayan de Oro City and lots of people from the Tuburan
informed me that my heavy equipment(s) were cannibalized by Sgt. Bacalso and
Barangay Captain Pabilona. (TSN, 2/2/89, p. 9; Emphasis supplied)

but the foregoing open-court declaration does not exclude petitioner's culpability subsequent to the loss of the heavy
equipment. It may convey the message that it was Sgt. Bacalso and Barangay Captain Pabilona who carted away the
spare parts, but it does not necessarily follow that petitioner did not get his other end of the bargain, more so when it
was established that the things ripped off were loaded on thence unloaded from his truck and kept in his bodega
whose door was even closed thereafter per his instructions (p. 32, Rollo).

Further to the argument concerning the non-inclusion of the prosecution witnesses as additional accused in the case
for violation of the Anti-Fencing Law, it may be observed that this bare assertion overlooks the fact that it is the fiscal,
as a quasi-judicial officer, who assumes full discretion and control of the case and this faculty may not be interfered
with, for a prosecutor may not be compelled by mandamus to file a criminal information where he is convinced that
he does not have the necessary evidence against an individual (Section 5, Rule 110, Revised Rules on Criminal
Procedure; Quizo vs. Sandiganbayan, 149 SCRA 108 [1987]; 2 Regalado, Remedial Law Compendium, Sixth Rev.
Ed., 1989, p. 195). Verily, the matter of prosecuting witnesses (Reyes vs. Camilon, 192 SCRA 445 [1990];
4 Herrera, Remedial Law, 1992 Ed., p. 39).

On the aspect of animus furandi, petitioner is of the belief that this element was not clearly established by the People's
evidence and he, therefore, draws the conclusion that respondent court seriously erred in presuming the existence of
intent to gain. Again, this supposition ignores the fact that intent to gain is a mental state, the existence of which is
demonstrated by the overt acts of a person (Soriano vs. People, 88 Phil., 368 [1951]; 1 Reyes, Revised Penal Code,
Eleventh Rev. Ed., 1991, p. 45; 1 Aquino, Revised Penal Code, 1988 Ed., p. 197). And what was the external
demeanor which petitioner showed from the which the trial court and respondent court inferred animus furandi? These
circumstances were vividly spelled in the body of the judgment which petitioner chose to blandly impugn and over
which he remains indifferent even at this crucial stage. Withal, the sinister mental state is presumed from the
commission of an unlawful act in bringing out the tires from his bodega which were loaded on his pick-up (People vs.
Sia Teb Ban, 54 Phil., 52 [1929]; 1 Reyes, supra at p. 46; Section 3(b), Rule 131, Revised Rules on Evidence). At any
rate, dolo is not required in crimes punished by a special statute like the Anti-Fencing Law of 1979 (U.S. vs. Go Chico,
14 Phil. 128 [1909]; 1 Reyes, supra at p. 58) because it is the act alone, irrespective of the motives which constitutes
the offense (U.S. vs. Siy Cong Bieng, et al., 30 Phil., 577 (1915); 1 Reyes, supra, at p. 59; 1 Aquino, supra, at p. 52).
Verily, when it was proved that petitioner committed the unlawful acts alleged in the information, it was properly
presumed that they were committed with full knowledge and with criminal intent, and it was incumbent upon him to
rebut such a presumption — a burden which petitioner regrettably failed to discharge (United States vs. Tria, 17 Phil.,
303 (1910); 1 Aquino, supra, at p. 45). Moreover, the presumption of fencing under Section 5 of Presidential Decree
No. 1612 that:

Mere possession of any good, article, item, object, or anything of value which has been the subject of
robbery or thievery shall be prima facie evidence of fencing.
 must be upheld in the light of petitioner's shallow demurrer premised on a denial and abili, since a disputable
presumption on this score is sufficient until overcome by contrary evidence (Sibal and Salazar, Compendium
on Evidence, Second Ed., 1988, p. 290).

Lastly, it is puerile for petitioner to contend that the order for him to pay the sum of P206,320.00, less the value of the
spare parts recovered in the possession of Sgt. Pabatian, as civil indemnity is unauthorized under Presidential Decree
No. 1612, because Section 3 (a) thereof includes the accessory penalty pertaining thereto vis-a-vis Article 104 of the
Revised Penal Code:

Sec. 3. Penalties. — Any person guilty of fencing shall be punished as hereunder indicated:

a) The penalty of prision mayor, if the value of the property involved is more than 12,000 pesos but
not exceeding 22,000 pesos; if the value of such property exceeds the latter sum, the penalty provided
in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000
pesos; but the total penalty which may be imposed shall not exceed twenty years. In such cases, the
penalty shall be termed reclusion temporal and the accessory penalty pertaining thereto provided in
the Revised Penal Code shall also be imposed.

There is thus no ambiguity to speak of considering that the message of the aforequoted section is too clear to need
clarification.

WHEREFORE, the petition is hereby dismissed and the decision of the Court of Appeals dated February 15, 1991 is
hereby AFFIRMED.

SO ORDERED.

G.R. No. 120898-99 May 14, 1998

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ALFONSO BAUTISTA, accused-appellant.

REGALADO, J.:

In a joint decision, the Regional Trial Court, Branch 48, of Urdaneta, Pangasinan rendered two verdicts of conviction
in Criminal Cases Nos. U-8191 and U-8192, finding accused-appellant Alfonso Bautista, alias "Poldo," guilty of the
charge of illegal possession of firearm and ammunition and of the complex crime of murder with frustrated murder
and attempted murder, respectively. Appellant insists in this present appellate review that the trial court should not
have granted affirmative weight to the testimonies of prosecution witnesses Ferdinand Datario and Rolando
Nagsagaray as the bases for his conviction, considering that, inter alia, after they allegedly caught a glimpse of
appellant at the scene of the crime, they broke their silence about his supposed participation only after more than
sixteen months and under dubious circumstances.

The initiatory criminal information in Criminal Case No. U-8191 was lodged on June 13, 1994 with Branch 48 of the
Regional Trial Court of Urdaneta, Pangasinan, 1 while that in Criminal Case No. U-8192, dated June 16, 1994, was
assigned to Branch 49 of said court. On motion of the Office of the Provincial Prosecutor, these cases were subsequently
consolidated and assigned to Branch 48 for trial. 2 Appellant was indicted for the commission of the aforestated crimes, as
follows:

Criminal Case No. U-8191

That on or about the 18th day of May, 1992, at Barangay Dilan, municipality of Pozorrubio, province of
Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did
then and there willfully, unlawfully and feloniously have in his possession, control and custody one (1) long
firearm of unknown caliber or make, without authority of law, and which he used in shooting Barangay Captain
Eduardo Datario, Bernabe Bayona and Cinderella Estrella. 3

Criminal Case No. U-8192

That on or about the 18th day of May, 1992, at Barangay Dilan, municipality of Pozorrubio, province of
Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with
intent to kill and with treachery, did then and there willfully, unlawfully and feloniously, attack and sho(o)t on(e)
Eduardo Datario hitting the latter's face with the bullet exiting through his neck, which wound caused his death,
and further hitting the ear of Bernabe Bayona and the bullet exiting through his mouth, which wound would
have caused the death of said Bernabe Bayona had it not been for the timely medical assistance rendered to
him, and the bullet finally hitting (the) right leg of Cinderella Estrella, (through) which wound accused
commenced the commission of the crime of Murder directly by overt act but did not produce it by reason of
some cause other than his spontaneous resistance, all to the damage and prejudice of the heirs of the
deceased and the two other victims 4 (Corrections supplied)

At the arraignment of appellant on November 10, 1994 wherein he was duly assisted by counsel, negative pleas to
the charges were entered for him pursuant to his indication in open court. 5 Pre-trial having been waived by appellant,
trial proceeded thereafter with the presentation of several prosecution witnesses, particularly the alleged eyewitnesses
Ferdinand Datario and Rolando Nagsagaray on whose testimonies the court below principally anchored its judgment of
conviction. On the other hand, appellant himself appeared in his defense, and one Norma Reyes, a neighbor, partly
corroborated his assertions.

Professedly convinced by the evidence for the prosecution, the trial court found appellant guilty as charged and
imposed on him the penalty of life imprisonment, with costs, in Criminal Case No. U-8191. In Criminal Case No. U-
8192, appellant was sentenced to suffer the penalty of reclusion perpetua and to pay civil indemnity of P50,000.00,
actual damages in the sum of P20,000.00, and the prescribed costs. 6

According to the evidence of the prosecution, 7 Eduardo Datario, Barangay Captain of Dilan in Pozorrubio, Pangasinan,
was fatally shot by an assassin on the night of May 18, 1992 at around ten o'clock. At the time of the treacherous assault,
the victim was watching the sideshows of their barangay fiesta which were being held within the school campus of the Dilan
Elementary School. Ferdinand Datario, younger brother of the deceased, recounted that when he arrived and took his place
beside his brother at the school premises, the latter was with Rolando Nagsagaray, Bernabe Bayona and Cinderella Estrella,
among others, watching a sideshows game.

Shortly thereafter, a gun report caused the people around to scamper in different directions. In the few seconds prior
to the ensuing melee, the deceased slumped to the ground with a gunshot wound in the area of his chin which proved
to be lethal. Bernabe Bayona and Cinderella Estrella, who were beside the victim, were likewise hit apparently by the
same bullet in succession, but they fortunately survived. Bayona sustained only a wound on the left ear followed by a
grazing wound on his left upper lip, and the bullet thereafter lodged in the left thigh of Estrella.

The same prosecution eyewitness recalled that as soon as the lone gun shot rang out, he instinctively turned toward
its source, and it was at the point that he saw the assailant, at an approximate distance of ten meters, holding a long
firearm aimed towards their group. That assailant, according to this witness, was herein appellant who was then on
the other side of a concrete fence which was more than five feet high. The witness then turned his attention to his
brother and with the help of other persons, they brought him to a hospital where the victim expired. 8 Rolando
Nagsagaray, the other key prosecution eyewitness, testified along the same lines. He likewise claimed to have seen
appellant standing at the other side of the concrete fence and holding a long firearm. 9 Both of them admittedly did not call
the attention of the people around them or those near the fence to the fact of the presence of appellant, either for his
identification or apprehension.

Appellant, a farm helper and resident of Lipit, Manaoag, Pangasinan, vehemently denied any involvement in the
shooting incident. He asserted in court that he never knew personally the victims and, although he himself could not
specifically recall where he was at the time of the killing on May 18, 1992, his neighbor, Norma Reyes, testified that
he was then at their house as a guest at the birthday celebration of her husband. Appellant also recalled that when
he was arrested in September, 1993 in San Fabian, Pangasinan, reportedly in connection with another case, he was
actually waiting for one Francisco Periamil at the latter's house to collect payment for his tobacco produce. However,
Periamil instead arrived with two law enforcers who promptly arrested appellant. He was then brought to Lingayen,
Pangasinan where he was detained and it was there where he was tortured and forced to admit participation in some
unsolved killings, one of which was the murder of Eduardo Datario. 10 It was also at the time of his arrest that the two
prosecution eyewitness, Ferdinand Datario and Rolando Nagsagaray, came out into the open to announce what they
allegedly witnessed on the night of May 18, 1992. 11

Appellant faults the trial court for its unwarranted acceptance of the version of the prosecution. He argues that the
very long delay, which took all of sixteen months, on the part of Ferdinand Datario and Rolando Nagsagaray in
reporting to the authorities what they allegedly saw has definitely placed the stamp of doubt, if not incredibility, on
their testimonies. On top of that, there are inherent improbabilities and inconsistencies in their declarations in court
and which, according to appellant, are factors obviously corrosive of the prosecution's cause. With the facts in this
hypothesis, the Court is inclined to agree. For, while it is true that the matter of assigning values and weight to the
testimonies of witnesses is at best the province of the trial court, it is equally the province of appellate courts to
disregard factual findings of the former where certain facts of substance have been plainly overlooked and
misappreciated by the said lower courts. 12

In the case at bar, the aforesaid two eyewitnesses both averred that they feared for their lives, hence they kept silent
for sixteen months. It was only after appellant had been apprehended and had allegedly owned up to the killing of the
victim that they decided to speak and execute sworn affidavits on the matter. The trouble with their posturing is that
they had all the opportunity to pinpoint appellant as the malefactor without having to necessarily place their lives, or
of those of their families, in danger. Thus, as pointedly noted by the defense, both these witnesses could very well
have revealed what they supposedly knew to the town mayor who took a hand in the investigation of the case, or any
of the police investigators or the other barangay officials, some of whom in fact were their personal friends, but they
did not. An anonymous tip to these authorities would also have been a convenient and effective course of action.

Witness these admissions in the testimony of Ferdinand Datario:

Q When was the first time that you reveal(ed) the identity of the accused Alfonso Bautista to
the authorities or did you reveal to anybody the identity of the person who shot your brother
Eduardo Dat(a)rio?

A Only to my father, sir.

Q And when did you tell your father that it was Alfonso Bautista who shot your brother Eduardo
Datario?

A On the fourth day after the incident, sir.

COURT

Q Why did you not tell your father immediately that Alfonso Bautista shot your brother?

A Because my father might get shock(ed), Ma'am.

Q Why did you not reveal immediately that Alfonso Bautista was the one who shot your
brother?

A We were afraid because Alfonso Bautista usually roams around, Ma'am.

Q When did the police go to your house?

A Before we brought home my brother, it was the 19th of May, the day after my brother died,
Ma'am.

xxx xxx xxx

Q When the policeman went to your house on May 19, 1992, you have not seen Alfonso
Bautista yet and yet you did not tell the police that Alfonso Bautista was the one who shot your
brother?

A Yes, Ma'am.

Q Why?
 A We were afraid to tell, Ma'am. 13

xxx xxx xxx

Q You never made any attempt to report what you saw who killed your brother on May 18,
1992?

A No, sir.

Q Now, do you know the Mayor of Pozorrubio at that time in 1992?

A Yes, sir.

Q Considering the fact that you are a barangay captain's brother you are very close to him,
am I right?

A Yes, sir.

Q In spite of that, you never attempt(ed) even to whisper to him what you allegedly saw on
May 18, 1992?

A No, sir.

Q Now, at that time, 1992, do you personally know any policeman in the municipality of
Pozurrubio?

A Yes, sir.

Q Who were they, could you please inform us?

A Investigator Balelo, Pat. Fernandez, sir.

Q You were very close to these policemen, am I right?

A Yes, sir.

Q And in spite of that you never attempted even to whisper to them that it was Alfonso
Bautista alias Poldo was allegedly shot your brother?

A I did not, sir.

xxx xxx xxx

Q Who called you at the police headquarters at Lingayen, Pangasinan?

A SPO1 Jaime Fernandez went to our house, sir.

xxx xxx xxx

Q Now, what did SPO1 Jaime Fernandez tell you when he went to your house and convinced
you to give your sworn statement?

A He told us to go to the police headquarters, sir?

Q Did you ask him why they were calling you at the headquarters?

A Yes, sir.

Q And what was his reason?

A He told us that the one who shot the barangay captain was already arrested, sir.

xxx xxx xxx

Q And what did you do when SPO1 Fernandez told you that Alfonso Bautista admitted that he
was the one who allegedly killed your brother?
 A That is why we filed a case on behalf of my deceased brother, sir.

Q So that was the only evidence you relied on when you filed this complaint only in 1993?

A Yes, sir. 14 (Emphasis and corrections in parentheses ours).

The veritable cock-and-bull account of witness Rolando Nagsagaray, which was obviously patterned after and to
corroborate that of Ferdinand Datario, was even worse. Thus:

Q At the time of gunwielder shot Eduardo Datario, you already knew him?

A Yes, Ma'am.

Q So, what is the name?

A Alfonso Bautista, Ma'am.

xxx xxx xxx

Q Now, at what time did you go home after delivering the late Barangay Captain Datario at the
Sacred Heart Hospital?

A 1:00 o'clock in the morning because he died at 1:00 o'clock, sir.

Q Were you alone when you went home at that time?

A There were two (2) of us, sir.

Q Who is your companion?

A Reynaldo Datario, the brother of Eduardo Datario, Ma'am.

Q You never informed Reynaldo Datario of what you allegedly saw that night?

A No, sir.

COURT

Q Why did you not inform Reynaldo Datario about what you saw?

A Because I was then afraid, Ma'am.

Q Reynaldo Datario is the brother of Eduardo?

A Yes, Ma'am.

Q Now, could you please inform this Honorable Court what was the physical condition or
situation of Reynaldo Datario when you went home.

A He cried, sir.

Q And am I right to say while he was crying he was crying for justice for his brother at that
time?

A Yes, sir.

Q And in spite of you never informed him of what you saw that night?

A No, sir.

xxx xxx xxx

Q You do not know any barangay official at that time?

A Napoleon Sales, sir.

 xxx xxx xxx

Q How far is the house of Napoleon Sales to your house?

A Around 100 meters, sir.

Q Did you inform Napoleon Sales what you saw at that particular night?

A No, sir.

Q Do you know of any policeman stationed at Pozorrubio, Pangasinan?

A Yes, sir.

Q Could you please tell us the name of that policeman?

A Balelo, sir.

xxx xxx xxx

Q You are very close to him, am I right?

A Yes, sir.

Q In spite of that, you never informed him of what you saw on that particular night?

A No, Ma'am.

Q Who is the incumbent Mayor at that time in Pozorrubio?

A Manuel Venezuela, sir.

Q You know him very well, am I right?

A Yes, sir.

Q And in spite of that, you never informed him, whispered to him, of what you know that night?

A No, sir.

xxx xxx xxx

Q Do you have any parent?

A Yes, sir.

Q You were living with them that particular time.

A Yes, sir.

Q And did you ever tell them of what you allegedly saw on that particular night?

A No, sir. 15

Ferdinand Datario even saw appellant passing near their house during the victim's wake but he never bothered to
sound the alarm, so to speak. This is an inconceivable reaction on his part, considering that there was at that time
sufficient manpower in the persons of fourteen male relatives and friends then in attendance who could have physically
overpowered appellant and placed him in the custody of the law. 16 More perplexing is the fact that while the witness is
an aggrieved consanguineous brother of the victim, yet he inexplicably remained tight-lipped over his avowed knowledge
of the identity of his own brother's killer. His behavior is certainly unnatural for one who had just lost a sibling under the
circumstances in this case, despite the opportunities under which he could have relayed what he now alleges to have known
all along and which, if true, could secure retributive justice for his brother.

The rule is ordinarily to the effect that delay by a witness in divulging what he or she knows about the commission of
a crime, such as the identity of the offender, is not by itself a setback to the evidentiary value of such a witness'
testimony. 17 The courts, however, have been quick to deny evidentiary weight where such delay is not sufficiently justified
by any acceptable explanation.
For instance, well-founded fear of reprisal, or the unpredictable manner by which individuals react when confronted
by a gruesome event as to place the viewer in a state of shock for sometime, have been considered as permissible
situations resulting in delay. 18 Invariably, however, even under the foregoing circumstances the delay must not be undue
in point of time. Thus, failure to reveal what one had witnessed about a crime for a number of days, or weeks, or even a
number of months, is allowable. But, that will not hold true where, as in the case now being reviewed, the delay had
unreasonably stretched all too far out into a year and four months, especially in the absence of any compelling or rational
basis for such self-imposed and lengthly silence.

In similar situations, the pronouncements of this Court have laid down guidelines applying foursquare to the instant
case. The holding in People vs. Cunanan, et al. 19 was emphatic that —

The natural reaction of one who witnesses a crime is to reveal it to the authorities, unless, of course, he is the
author thereof. It defies credulity that not one or two but five such witnesses made no effort to expose Cunanan
if they really knew that he was the author thereof. This stultified silence casts grave doubts as to their veracity.

In the end, we have her a specific case where evidence of identification is thoroughly unreliable. Reason: No
valid explanation was given why the People's witnesses did not report the identity of appellant Cunanan to the
authorities during a long period of time.

Thereafter, People vs. Cruz 20 reiterated that ruling and trenchantly stressed as follows:

2. It took forty-two (42) days after the incident for Modesto Alipio to come out and give his sworn statement,
Exhibit "B", to the Philippine Constabulary narrating therein what he saw on that occasion. . . . Failure on the
part of Alipio to report to the authorities immediately — a very essential detail in the solution of the crime —
engenders a suspicion that he was not altogether candid and truthful in his testimony. At any rate, the long
delay, which is not caused by threat, intimidation or coercion by herein appellant or anybody for that matter,
in reporting the matter to the authorities — the mayor, barangay captain, police or the Philippine Constabulary,
by one who himself was once an army man has rendered the evidence for the prosecution insufficient to
establish appellant's guilty connection to the requisite of moral certainty. . . .

More recently, People vs. Gonzales, et al. 21 gave another instructive illustration, to wit:

Additionally, Huntoria's credibility as a witness is likewise tarnished by the fact that he only came out to testify
in October 1981, or eight long months since he allegedly saw the killing on February 21, 1981. While ordinarily
the failure of a witness to report at once to the police authorities the crime he had witnessed should not be
taken against him and should not affect his credibility, here, the unreasonable delay in Huntoria's coming out
engenders doubt on his veracity. If the silence of an alleged eyewitness for several weeks renders his
credibility doubtful, the more it should be for one who was mute for eight months. Further, Huntoria's long
delay in revealing what he allegedly witnessed has not been satisfactorily explained. His lame excuse that he
feared his life would be endangered is too pat to be believed. There is no showing that he was threatened by
the accused or by anybody. . . .

Even then, by themselves, the testimonies of these two prosecution witnesses are replete with material
inconsistencies and incongruities. Thus, to cite just a few, Ferdinand Datario narrated that he in fact divulged to his
father, Bernardino Datario, the identity of his brother's assailant four days after the incident. 22 He claims that he deferred
that revelation in order not to shock his father, but he does not explain why the death of the victim would not shock his
father, but he identity of the killer would. Contrarily, Bernardino Datario, declared that he came to know about appellant's
participation in the crime from Ferdinand on the very same night that Eduardo was killed but that he (the father), likewise
opted for silence allegedly on account of fear at that time. 23

Rolando Nagsagaray, on his part, asserted in court that after shooting the deceased, appellant then merely walked
away from the concrete fence with rifle in hand. 24 Now, said witness could not have spoken the truth since the height of
the fence was about a foot more than appellant's admitted height, hence the witness could not have really seen appellant
walking away from the crime
scene. 25 Besides, it sounds somewhat absurd that if appellant had to quickly duck behind the fence immediately after firing
the single shot in order to avoid recognition, he would then nonchalantly walk away although there were many people on
both sides of the fence who would recognize him. His bringing a rifle would also naturally attract attention.

Ferdinand Datario also admitted, and this is not disputed by the parties, that between the concrete fence and the
place where their group was then watching the sideshow, there were people milling around and structures erected for
other sideshows, which collectively obstructed his view. 26 Although the other prosecution eyewitness, Rolando
Nagsagaray, hedged on the effect of such obstructions to their vantage location, there are considerations hereafter
explained showing the correctness of Ferdinand Datario's testimony. Actually, the prosecution does not seriously question
the existence of those structures being used by the other sideshows.

There is likewise in Nagsagaray's version an evident taint of falsity. If he is to be believed, within the swift span of a
few seconds after hearing the gun report, he first glanced at his watch and thus recalled that it was 10:30 in the
evening when it happened; that in the process he also saw the victims Eduardo Datario, Bernabe Bayona and
Cinderella Estrella fall one after the other; that, at the same time, he observed the frightened crowd running away in
different directions, although he could not name any of them; and, on top of all these, he still managed to further obtain
an excellent view of appellant behind the concrete fence. 27 This exaggerated narration of the facts simultaneously taking
place is certainly beyond human experience. No person could have had the capacity to see all these events taking place
during those fleeting seconds, considering the rapidity of their occurrence as this witness himself represents.

There are also a number of unexplained or inexplicable facts that enshroud the testimonies of these witnesses in
uncertainty and doubt. As ordered by the lower court, an ocular inspection of the premises was conducted by its
branch clerk of court, designated as commissioner therefor, and the salient findings are as follows:

1. The height of the fence is 1.7 meters and the distance between the fence and the center of the basketball
court is 12 meters.

2. The distance between the center of the basketball court and the place where the victim fell down is 18
meters.

3. Between the basketball court and the fence are two full-grown acacia trees and one star-apple tree very
close to the fence. Immediately behind the fence is a house with two mango trees nearby. 28

What these physical features of the crime scene reveal is that, although the place was illuminated for the "barangay
feria," the presence of the big trees naturally cast shadows on wide portions thereof, especially along parts of the
concrete fence. There was no specification made by the two alleged eyewitnesses of the particular portion of the fence
where they supposedly saw appellant, except by way of a vague general direction in relation to their own variant
positions, such as, to the left or right of some of them. It cannot, therefore, be said that appellant was so clearly
exposed as to be easily visible to the so-called eyewitnesses.

At the trial, it was ascertained that appellant was 5 feet 4 inches in

height, 29 obviously lower than the height of the fence. Yet, witness Nagsagaray described appellant's presence at the fence
in various positions, such as "holding the gun at breast level," 30 or "putting down the gun" and then "walking towards the
east," 31 despite the fact that he was obscured by the shadows and the view was blocked by the fence. An attempt was
made to show that appellant must have been standing on top of a water container behind the fence so he could aim his gun
above it, but the records are barren of competent evidence showing whether those containers were really there that night,
or who placed them there, and on which portion along the fence they were located. In fine, we are presented with a
situational problem created by a surmise founded upon a conjecture.

The prosecution belittles appellant's supposed alibi since it is easy of fabrication and is always viewed with suspicion.
However, the prosecution's own evidence which supposedly identifies appellant as the malefactor falls far short of the
requisite quantum of evidence, as earlier explained, not to speak of the absence of any firearm presented in court nor
satisfactory evidence of appellant's possession thereof. While the defense of alibi must stand searching scrutiny, it
acquires commensurate strength where no proper and positive identification has been made. 32 The identity of the
offender, like the crime itself, must be proved beyond reasonable doubt. 33 After all, as a paramount element for conviction,
the prosecution's evidence must stand on its own merits and cannot draw strength from the weakness of the defense. 34

Strictly speaking, however, when viewed from another angle with a little more perception, it does not appear that
appellant really resorted to alibi. As conveniently understood, this exculpation is invoked by an accused who
represents, often with proffered corroboration, that at the time the offense was committed he was elsewhere at a
specific place, hence he could not have participated therein. In the instant case, the peculiarity is that appellant
steadfastly denied being at the scene of the crime but candidly admitted that he could not remember or did not know
whether at the time of the killing he was then in his tobacco field in Barangay Macayog, San Jacinto since he did not
even know about the crime in question. 35 Withal, he could remember the dates of other events where he personally
participated, such as when he was arrested, when he was detained in San Fabian, and when he was brought to Lingayen.

It is of general knowledge that in rural areas where farmers live a humdrum working existence, and where the quotidian
routine of every day is just like the last, one cannot expect them or even their families to keep diaries or records which
would enable them to honestly state where they were on particular dates, unless there was an important reason
therefor. Thus, it appeals more to common sense and realistic truth that the innocent answer of appellant reflects
more honesty than that of one who could easily fix his definite whereabouts just to subserve his defense of alibi. The
latter practice is much a matter of judicial experience and repudiation.

It is also notworthy that no motive was ever attributed to appellant as to why he should kill the deceased or shoot the
other victims since the evidence shows beyond cavil that he did not even know any of them personally or had any
previous association or dealings with them. The rule is that proof of motive is unnecessary to impute a crime to the
accused if the evidence concerning his identification is convincing. A converso, if the evidence of identification is
unclear, then the jurisprudential doctrine is that proof of motive is a paramount necessity. 36

At the trial, the witnesses from the Philippine National Police harped on the fact that, after his arrest for another alleged
crime, herein appellant was linked to a number of long unsolved killings in the region, including the present case. This
was an unfair proposition, such that the defense was forced to rejoin that appellant was actually being made a
scapegoat in order to camouflage official incompetence by going through the motions of wiping clean the slate of
unsolved crimes through the expedient of indicting appellant for all of them. A sober note is interjected by the Solicitor
General who points out that those other cases should not be taken up here for being immaterial. Indeed, entangling
those other charges with one at bar would run afoul of the second branch of the rule of res inter alios acta 37 since,
even taken altogether, they could not constitute an exception thereto.

ACCORDINGLY, on reasonable doubt irresistibly created by the foregoing premises, the consolidated judgments of
the court a quo in Criminal Case Nos. U-8191 and U-8192 are hereby REVERSED and SET ASIDE. Accused-
appellant Alfonso Bautista is hereby ACQUITTED of the present charges against him and, unless otherwise detained
for some other lawful cause, his release from confinement is consequently directed. Costs de oficio.

SO ORDERED.

G.R. No. L-5272 March 19, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
AH CHONG, defendant-appellant.

Gibb & Gale, for appellant.

Attorney-General Villamor, for appellee.

CARSON, J.:

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

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

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

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

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

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

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

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

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

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

Article 8 of the Penal Code provides that —

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

xxx xxx xxx

4 He who acts in defense of his person or rights, provided there are the following attendant circumstances:
 (1) Illegal aggression.

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

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

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

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

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

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

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

Article 1 of the Penal Code is as follows:

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

Acts and omissions punished by law are always presumed to be voluntarily unless the contrary shall appear.
 An person voluntarily committing a crime or misdemeanor shall incur criminal liability, even though the
wrongful act committed be different from that which he had intended to commit.

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

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

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

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

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

It is necessary that this act, in order to constitute a crime, involve all the malice which is supposed from the
operation of the will and an intent to cause the injury which may be the object of the crime.

And again in its sentence of March 16, 1892, wherein it held that "considering that, whatever may be the civil effects
of the inscription of his three sons, made by the appellant in the civil registry and in the parochial church, there can
be no crime because of the lack of the necessary element or criminal intention, which characterizes every action or
ommission punished by law; nor is he guilty of criminal negligence."

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

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

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

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

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

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

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

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

The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in meaning the word "willful"
as used in English and American statute to designate a form of criminal intent. It has been said that while the word
"willful" sometimes means little more than intentionally or designedly, yet it is more frequently understood to extent a
little further and approximate the idea of the milder kind of legal malice; that is, it signifies an evil intent without
justifiable excuse. In one case it was said to mean, as employed in a statute in contemplation, "wantonly" or
"causelessly;" in another, "without reasonable grounds to believe the thing lawful." And Shaw, C. J., once said that
ordinarily in a statute it means "not merely `voluntarily' but with a bad purpose; in other words, corruptly." In English
and the American statutes defining crimes "malice," "malicious," "maliciously," and "malice aforethought" are words
indicating intent, more purely technical than "willful" or willfully," but "the difference between them is not great;" the
word "malice" not often being understood to require general malevolence toward a particular individual, and signifying
rather the intent from our legal justification. (Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases cited.)

But even in the absence of express words in a statute, setting out a condition in the definition of a crime that it be
committed "voluntarily," willfully," "maliciously" "with malice aforethought," or in one of the various modes generally
construed to imply a criminal intent, we think that reasoning from general principles it will always be found that with
the rare exceptions hereinafter mentioned, to constitute a crime evil intent must combine with an act. Mr. Bishop, who
supports his position with numerous citations from the decided cases, thus forcely present this doctrine:

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

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

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

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

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

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

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

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

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

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

Parson, C.J., in the Massachusetts court, once said:

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

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

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

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

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

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

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

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

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

Johnson Moreland and Elliott, JJ., concur.

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

Separate Opinions

TORRES, J., dissenting:

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

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

G.R. No. L-47722 July 27, 1943

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-appellants.

Antonio Z. Oanis in his own behalf.

Maximo L. Valenzuela for appellant Galanta.
Acting Solicitor-General Ibañez and Assistant Attorney Torres for appellee.

MORAN, J.:

Charged with the crime of murder of one Serapio Tecson, the accused Antonio Z. Oanis and Alberto Galanta, chief of
police of Cabanatuan and corporal of the Philippine Constabulary, respectively, were, after due trial, found guilty by
the lower court of homicide through reckless imprudence and were sentenced each to an indeterminate penalty of
from one year and six months to two years and two months of prison correccional and to indemnify jointly and severally
the heirs of the deceased in the amount of P1,000. Defendants appealed separately from this judgment.

In the afternoon of December 24, 1938. Captain Godofredo Monsod, Constabulary Provincial Inspector at
Cabanatuan, Nueva Ecija, received from Major Guido a telegram of the following tenor: "Information received escaped
convict Anselmo Balagtas with bailarina and Irene in Cabanatuan get him dead or alive." Captain Monsod accordingly
called for his first sergeant and asked that he be given four men. Defendant corporal Alberto Galanta, and privates
Nicomedes Oralo, Venancio Serna and D. Fernandez, upon order of their sergeant, reported at the office of the
Provincial Inspector where they were shown a copy of the above-quoted telegram and a newspaper clipping containing
a picture of Balagtas. They were instructed to arrest Balagtas and, if overpowered, to follow the instruction contained
in the telegram. The same instruction was given to the chief of police Oanis who was likewise called by the Provincial
Inspector. When the chief of police was asked whether he knew one Irene, a bailarina, he answered that he knew one
of loose morals of the same name. Upon request of the Provincial Inspector, the chief of police tried to locate some
of his men to guide the constabulary soldiers in ascertaining Balagtas' whereabouts, and failing to see anyone of them
he volunteered to go with the party. The Provincial Inspector divided the party into two groups with defendants Oanis
and Galanta, and private Fernandez taking the route to Rizal street leading to the house where Irene was supposedly
living. When this group arrived at Irene's house, Oanis approached one Brigida Mallare, who was then stripping
banana stalks, and asked her where Irene's room was. Brigida indicated the place and upon further inquiry also said
that Irene was sleeping with her paramour. Brigida trembling, immediately returned to her own room which was very
near that occupied by Irene and her paramour. Defendants Oanis and Galanta then went to the room of Irene, and an
seeing a man sleeping with his back towards the door where they were, simultaneously or successively fired at him
with their .32 and .45 caliber revolvers. Awakened by the gunshots, Irene saw her paramour already wounded, and
looking at the door where the shots came, she saw the defendants still firing at him. Shocked by the entire scene.
Irene fainted; it turned out later that the person shot and killed was not the notorious criminal Anselmo Balagtas but a
peaceful and innocent citizen named Serapio Tecson, Irene's paramour. The Provincial Inspector, informed of the
killing, repaired to the scene and when he asked as to who killed the deceased. Galanta, referring to himself and to
Oanis, answered: "We two, sir." The corpse was thereafter brought to the provincial hospital and upon autopsy by Dr.
Ricardo de Castro, multiple gunshot wounds inflicted by a .32 and a .45 caliber revolvers were found on Tecson's
body which caused his death.

These are the facts as found by the trial court and fully supported by the evidence, particularly by the testimony of
Irene Requinea. Appellants gave, however, a different version of the tragedy. According to Appellant Galanta, when
he and chief of police Oanis arrived at the house, the latter asked Brigida where Irene's room was. Brigida indicated
the place, and upon further inquiry as to the whereabouts of Anselmo Balagtas, she said that he too was sleeping in
the same room. Oanis went to the room thus indicated and upon opening the curtain covering the door, he said: "If
you are Balagtas, stand up." Tecson, the supposed Balagtas, and Irene woke up and as the former was about to sit
up in bed. Oanis fired at him. Wounded, Tecson leaned towards the door, and Oanis receded and shouted: "That is
Balagtas." Galanta then fired at Tecson.

On the other hand, Oanis testified that after he had opened the curtain covering the door and after having said, "if you
are Balagtas stand up." Galanta at once fired at Tecson, the supposed Balagtas, while the latter was still lying on bed,
and continued firing until he had exhausted his bullets: that it was only thereafter that he, Oanis, entered the door and
upon seeing the supposed Balagtas, who was then apparently watching and picking up something from the floor, he
fired at him.

The trial court refused to believe the appellants. Their testimonies are certainly incredible not only because they are
vitiated by a natural urge to exculpate themselves of the crime, but also because they are materially contradictory.
Oasis averred that be fired at Tecson when the latter was apparently watching somebody in an attitudes of picking up
something from the floor; on the other hand, Galanta testified that Oasis shot Tecson while the latter was about to sit
up in bed immediately after he was awakened by a noise. Galanta testified that he fired at Tecson, the supposed
Balagtas, when the latter was rushing at him. But Oanis assured that when Galanta shot Tecson, the latter was still
lying on bed. It is apparent from these contradictions that when each of the appellants tries to exculpate himself of the
crime charged, he is at once belied by the other; but their mutual incriminating averments dovetail with and corroborate
substantially, the testimony of Irene Requinea. It should be recalled that, according to Requinea, Tecson was still
sleeping in bed when he was shot to death by appellants. And this, to a certain extent, is confirmed by both appellants
themselves in their mutual recriminations. According, to Galanta, Oanis shot Tecson when the latter was still in bed
about to sit up just after he was awakened by a noise. And Oanis assured that when Galanta shot Tecson, the latter
was still lying in bed. Thus corroborated, and considering that the trial court had the opportunity to observe her
demeanor on the stand, we believe and so hold that no error was committed in accepting her testimony and in rejecting
the exculpatory pretensions of the two appellants. Furthermore, a careful examination of Irene's testimony will show
not only that her version of the tragedy is not concocted but that it contains all indicia of veracity. In her cross-
examination, even misleading questions had been put which were unsuccessful, the witness having stuck to the truth
in every detail of the occurrence. Under these circumstances, we do not feel ourselves justified in disturbing the
findings of fact made by the trial court.

The true fact, therefore, of the case is that, while Tecson was sleeping in his room with his back towards the door,
Oanis and Galanta, on sight, fired at him simultaneously or successively, believing him to be Anselmo Balagtas but
without having made previously any reasonable inquiry as to his identity. And the question is whether or not they may,
upon such fact, be held responsible for the death thus caused to Tecson. It is contended that, as appellants acted in
innocent mistake of fact in the honest performance of their official duties, both of them believing that Tecson was
Balagtas, they incur no criminal liability. Sustaining this theory in part, the lower court held and so declared them guilty
of the crime of homicide through reckless imprudence. We are of the opinion, however, that, under the circumstances
of the case, the crime committed by appellants is murder through specially mitigated by circumstances to be
mentioned below.

In support of the theory of non-liability by reasons of honest mistake of fact, appellants rely on the case of U.S. v. Ah
Chong, 15 Phil., 488. The maxim is ignorantia facti excusat, but this applies only when the mistake is committed
without fault or carelessness. In the Ah Chong case, defendant therein after having gone to bed was awakened by
someone trying to open the door. He called out twice, "who is there," but received no answer. Fearing that the intruder
was a robber, he leaped from his bed and called out again., "If you enter the room I will kill you." But at that precise
moment, he was struck by a chair which had been placed against the door and believing that he was then being
attacked, he seized a kitchen knife and struck and fatally wounded the intruder who turned out to be his room-mate.
A common illustration of innocent mistake of fact is the case of a man who was marked as a footpad at night and in a
lonely road held up a friend in a spirit of mischief, and with leveled, pistol demanded his money or life. He was killed
by his friend under the mistaken belief that the attack was real, that the pistol leveled at his head was loaded and that
his life and property were in imminent danger at the hands of the aggressor. In these instances, there is an innocent
mistake of fact committed without any fault or carelessness because the accused, having no time or opportunity to
make a further inquiry, and being pressed by circumstances to act immediately, had no alternative but to take the
facts as they then appeared to him, and such facts justified his act of killing. In the instant case, appellants, unlike the
accused in the instances cited, found no circumstances whatsoever which would press them to immediate action. The
person in the room being then asleep, appellants had ample time and opportunity to ascertain his identity without
hazard to themselves, and could even effect a bloodless arrest if any reasonable effort to that end had been made,
as the victim was unarmed, according to Irene Requinea. This, indeed, is the only legitimate course of action for
appellants to follow even if the victim was really Balagtas, as they were instructed not to kill Balagtas at sight but to
arrest him, and to get him dead or alive only if resistance or aggression is offered by him.

Although an officer in making a lawful arrest is justified in using such force as is reasonably necessary to secure and
detain the offender, overcome his resistance, prevent his escape, recapture him if he escapes, and protect himself
from bodily harm (People vs. Delima, 46 Phil, 738), yet he is never justified in using unnecessary force or in treating
him with wanton violence, or in resorting to dangerous means when the arrest could be effected otherwise (6 C.J.S.,
par. 13, p. 612). The doctrine is restated in the new Rules of Court thus: "No unnecessary or unreasonable force shall
be used in making an arrest, and the person arrested shall not be subject to any greater restraint than is necessary
for his detention." (Rule 109, sec. 2, par. 2). And a peace officer cannot claim exemption from criminal liability if he
uses unnecessary force or violence in making an arrest (5 C.J., p. 753; U.S. vs. Mendoza, 2 Phil., 109). It may be true
that Anselmo Balagtas was a notorious criminal, a life-termer, a fugitive from justice and a menace to the peace of
the community, but these facts alone constitute no justification for killing him when in effecting his arrest, he offers no
resistance or in fact no resistance can be offered, as when he is asleep. This, in effect, is the principle laid down,
although upon different facts, in U.S. vs. Donoso (3 Phil., 234, 242).

It is, however, suggested that a notorious criminal "must be taken by storm" without regard to his right to life which he
has by such notoriety already forfeited. We may approve of this standard of official conduct where the criminal offers
resistance or does something which places his captors in danger of imminent attack. Otherwise we cannot see how,
as in the present case, the mere fact of notoriety can make the life of a criminal a mere trifle in the hands of the officers
of the law. Notoriety rightly supplies a basis for redoubled official alertness and vigilance; it never can justify precipitate
action at the cost of human life. Where, as here, the precipitate action of the appellants has cost an innocent life and
there exist no circumstances whatsoever to warrant action of such character in the mind of a reasonably prudent man,
condemnation — not condonation — should be the rule; otherwise we should offer a premium to crime in the shelter
of official actuation.

The crime committed by appellants is not merely criminal negligence, the killing being intentional and not accidental.
In criminal negligence, the injury caused to another should be unintentional, it being simply the incident of another act
performed without malice. (People vs. Sara, 55 Phil., 939). In the words of Viada, "para que se celifique un hecho de
imprudencia es preciso que no haya mediado en el malicia ni intencion alguna de dañar; existiendo esa intencion,
debera calificarse el hecho del delito que ha producido, por mas que no haya sido la intencion del agente el causar
un mal de tanta gravedad como el que se produjo." (Tomo 7, Viada Codigo Penal Comentado, 5.a ed. pag. 7). And,
as once held by this Court, a deliberate intent to do an unlawful act is essentially inconsistent with the idea of reckless
imprudence (People vs. Nanquil, 43 Phil., 232; People vs. Bindor, 56 Phil., 16), and where such unlawful act is wilfully
done, a mistake in the identity of the intended victim cannot be considered as reckless imprudence (People vs. Gona,
54 Phil., 605) to support a plea of mitigated liability.

As the deceased was killed while asleep, the crime committed is murder with the qualifying circumstance of alevosia.
There is, however, a mitigating circumstance of weight consisting in the incomplete justifying circumstance defined in
article 11, No. 5, of the Revised Penal Code. According to such legal provision, a person incurs no criminal liability
when he acts in the fulfillment of a duty or in the lawful exercise of a right or office. There are two requisites in order
that the circumstance may be taken as a justifying one: (a) that the offender acted in the performance of a duty or in
the lawful exercise of a right; and (b) that the injury or offense committed be the necessary consequence of the due
performance of such duty or the lawful exercise of such right or office. In the instance case, only the first requisite is
present — appellants have acted in the performance of a duty. The second requisite is wanting for the crime by them
committed is not the necessary consequence of a due performance of their duty. Their duty was to arrest Balagtas or
to get him dead or alive if resistance is offered by him and they are overpowered. But through impatience or over-
anxiety or in their desire to take no chances, they have exceeded in the fulfillment of such duty by killing the person
whom they believed to be Balagtas without any resistance from him and without making any previous inquiry as to his
identity. According to article 69 of the Revised Penal Code, the penalty lower by one or two degrees than that
prescribed by law shall, in such case, be imposed.

For all the foregoing, the judgment is modified and appellants are hereby declared guilty of murder with the mitigating
circumstance above mentioned, and accordingly sentenced to an indeterminate penalty of from five (5) years of prision
correctional to fifteen (15) years of reclusion temporal, with the accessories of the law, and to pay the heirs of the
deceased Serapio Tecson jointly and severally an indemnity of P2,000, with costs.

Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur.

Separate Opinions

PARAS, J., dissenting:

Anselmo Balagtas, a life termer and notorious criminal, managed to escape and flee form Manila to the provinces.
Receiving information to the effect that he was staying with one Irene in Cabanatuan, Nueva Ecija, the office of the
Constabulary in Manila ordered the Provincial Inspector in Cabanatuan by telegram dispatched on December 25,
1938, to get Balagtas "dead or alive". Among those assigned to the task of carrying out the said order, were Antonio
Z. Oanis, chief of police of Cabanatuan, and Alberto Galanta, a Constabulary corporal, to whom the telegram received
by the Provincial Inspector and a newspaper picture of Balagtas were shown. Oanis, Galanta and a Constabulary
private, after being told by the Provincial Inspector to gather information about Balagtas, "to arrest him and, if
overpowered, to follow the instructions contained in the telegram," proceeded to the place where the house of Irene
was located. Upon arriving thereat, Oanis approached Brigida Mallari, who was then gathering banana stalks in the
yard, and inquired for the room of Irene. After Mallari had pointed out the room, she was asked by Oanis to tell where
Irene's paramour, Balagtas, was, whereupon Mallari answered that he was sleeping with Irene. Upon reaching the
room indicated, Oanis and Galanta, after the former had shouted "Stand up, if you are Balagtas," started shooting the
man who was found by them lying down beside a woman. The man was thereby killed, but Balagtas was still alive,
for it turned out that the person shot by Oanis and Galanta was one Serapio Tecson.

Consequently, Oanis and Galanta were charged with having committed murder. The Court of First Instance of Nueva
Ecija, however, convicted them only of homicide through reckless imprudence and sentenced them each to suffer the
indeterminate penalty of from 1 year and 6 months to 2 years and 2 months of prision correctional, to jointly and
severally indemnify the heirs of Serapio Tecson in the amount of P1,000, and to pay the costs. Oanis and Galanta
have appealed.

In accomplishing the acts with which the appellants were charged, they undoubtedly followed the order issued by the
Constabulary authorities in Manila requiring the Provincial Inspector in Cabanatuan to get Balagtas dead or alive, in
the honest belief that Serapio Tecson was Anselmo Balagtas. As the latter became a fugitive criminal, with revolvers
in his possession and a record that made him extremely dangerous and a public terror, the Constabulary authorities
were justified in ordering his arrest, whether dead or alive. In view of said order and the danger faced by the appellants
in carrying it out, they cannot be said to have acted feloniously in shooting the person honestly believed by them to
be the wanted man. Conscious of the fact that Balagtas would rather kill than be captured, the appellants did not want
to take chances and should not be penalized for such prudence. On the contrary, they should be commended for their
bravery and courage bordering on recklessness because, without knowing or ascertaining whether the wanted man
was in fact asleep in his room, they proceeded thereto without hesitation and thereby exposed their lives to danger.

The Solicitor-General, however, contends that the appellants were authorized to use their revolvers only after being
overpowered by Balagtas. In the first place, the alleged instruction by the Provincial Inspector to that effect, was in
violation of the express order given by the Constabulary authorities in Manila and which was shown to the appellants.
In the second place, it would indeed be suicidal for the appellants or, for that matter, any agent of the authority to have
waited until they have been overpowered before trying to put our such a character as Balagtas. In the third place, it is
immaterial whether or not the instruction given by the Provincial Inspector was legitimate and proper, because the
facts exist that the appellants acted in conformity with the express order of superior Constabulary authorities, the
legality or propriety of which is not herein questioned.

The theory of the prosecution has acquired some plausibility, though quite psychological or sentimental, in view only
of the fact that it was not Balagtas who was actually killed, but an "innocent man . . . while he was deeply asleep."
Anybody's heart will be profoundly grieved by the trade, but in time will be consoled by the realization that the life of
Serapio Tecson was not vainly sacrificed, for the incident will always serve as a loud warning to any one desiring to
follow in the footsteps of Anselmo Balagtas that in due time the duly constituted authorities will, upon proper order,
enforce the summary forfeiture of his life.

In my opinion, therefore, the appellants are not criminally liable if the person killed by them was in fact Anselmo
Balagtas for the reason that they did so in the fulfillment of their duty and in obedience to an order issued by a superior
for some lawful purpose (Revised Penal Code, art. 11, pars. 5 and 6). They also cannot be held criminally liable even
if the person killed by them was not Anselmo Balagtas, but Serapio Tecson, because they did so under an honest
mistake of fact not due to negligence or bad faith. (U.S. vs. Ah Chong, 15 Phil., 488).

It is true that, under article 4 of the Revised Penal Code, criminal liability is incurred by any person committing a felony
although the wrongful act done be different from that which he intended; but said article is clearly inapplicable since
the killing of the person who was believed to be Balagtas was, as already stated, not wrongful or felonious.
The case of U.S. vs. Mendieta (34 Phil., 242), cited by the Solicitor-General, is not in point, inasmuch as the defendant
therein, who intended to injure Hilario Lauigan with whom he had a quarrel, but killed another by mistake, would not
be exempted from criminal liability if he actually injured or killed Hilario Lauigan, there being a malicious design on his
part. The other case involved by the prosecution is U.S. vs. Donoso (3 Phil., 234). This is also not in point, as it
appears that the defendants therein killed one Pedro Almasan after he had already surrendered and allowed himself
to be bound and that the said defendants did not have lawful instructions from superior authorities to capture Almasan
dead or alive.

The appealed judgment should therefore be reversed and the appellants, Antonio Z. Oanis and Alberto Galanta,
acquitted, with costs de oficio.

HONTIVEROS, J., dissenting:

According to the opinion of the majority, it is proper to follow the rule that a notorious criminal "must be taken by storm
without regard to his life which he has, by his conduct, already forfeited," whenever said criminal offers resistance or
does something which places his captors in danger of imminent attack. Precisely, the situation which confronted the
accused-appellants Antonio Z. Oanis and Alberto Galanta in the afternoon of December 24, 1938, was very similar to
this. It must be remembered that both officers received instructions to get Balagtas "dead or alive" and according to
the attitude of not only the said appellants but also of Capt. Monsod, constabulary provincial inspector of Nueva Ecija,
it may be assumed that said instructions gave more emphasis to the first part; namely, to take him dead. It appears
in the record that after the shooting, and having been informed of the case, Capt. Monsod stated that Oanis and
Galanta might be decorated for what they had done. That was when all parties concerned honestly believed that the
dead person was Balagtas himself, a dangerous criminal who had escaped from his guards and was supposedly
armed with a .45 caliber pistol Brigida Mallari, the person whom the appellants met upon arriving at the house of Irene
Requinea, supposed mistress of Balagtas, informed them that said Balagtas was upstairs. Appellants found there
asleep a man closely resembling the wanted criminal. Oanis said: If you are Balagtas stand up," But the supposed
criminal showed his intention to attack the appellants, a conduct easily explained by the fact that he should have felt
offended by the intrusion of persons in the room where he was peacefully lying down with his mistress. In such
predicament, it was nothing but human on the part of the appellants to employ force and to make use of their weapons
in order to repel the imminent attack by a person who, according to their belief, was Balagtas It was unfortunate,
however that an innocent man was actually killed. But taking into consideration the facts of the case, it is, according
to my humble opinion, proper to apply herein the doctrine laid down in the case of U.S. vs. Ah Chong (15 Phil., 488).
In the instant case we have, as in the case supra, an innocent mistake of fact committed without any fault or
carelessness on the part of the accused, who having no time to make a further inquiry, had no alternative but to take
the facts as they appeared to them and act immediately.

The decision of the majority, in recognition of the special circumstances of this case which favored the accused-
appellants, arrives at the conclusion that an incomplete justifying circumstance may be invoked, and therefore,
according to Article 69 of the Revised Penal Code, the imposable penalty should be one which is lower by one or two
degrees than that prescribed by law. This incomplete justifying circumstance is that defined in Article 11, No. 5 of the
Revised Penal Code, in favor of "a person who acts in the fulfillment of a duty or in the lawful exercise of a right or
office." I believe that the application of this circumstance is not proper. Article 69 of the Revised Penal Code provides
as follows:

Art. 69. Penalty to be imposed when the crime committed is not wholly excusable. — A penalty lower by one
or two degrees than that prescribed by law shall be imposed if the deed is not wholly excusable by reason of
the lack of some of the conditions required to justify the same or to exempt from criminal liability in the several
cases mentioned in articles 11 and 12, provided that the majority of such conditions be present. The courts
shall impose the penalty in the period which may be deemed proper, in view of the number and nature of the
conditions of exemption present or lacking.

This provision has been copied almost verbatim from Article 84 of the old Penal Code of the Philippines, and which
was also taken from Article 87 of the Spanish Penal Code of 1870.

Judge Guillermo Guevara, one of the members of the Committee created by Administrative Order No. 94 of the
Department of Justice for the drafting of the Revised Penal Code, in commenting on Article 69, said that the justifying
circumstances and circumstances exempting from liability which are the subject matter of this article are the following:
self-defense, defense of relatives, defense of strangers, state of necessity and injury caused by mere accident.
Accordingly, justifying circumstance No. 5 of Article 11 dealing with the fulfillment of a duty or the lawful exercise of a
right, calling or office, cannot be placed within its scope.

The eminent treatiser of criminal law Mr. Groizard, in his commentary of Article 87 of the Spanish Penal Code of 1870
which is the source of Article 69 of our Code says:

Ni tratandose de la imbecilidad, ni de la locura, ni de la menor edad, ni del que obra violentado por una fuerza
inrresistible o impulsado por miedo insuperable de un mal igual o mayor, o en cumplimiento de un deber, o
 en el ejercito legitimo de un derecho, oficio o cargo, o en virtud de obediencia debida, ni del que incurre en
alguna omision hallandose impedido por causa legitima o insuperable, puede tener aplicacion al articulo que
comentamos. Y la razon es obvia. En ninguna de estas execiones hay pluralidad de requisitos. La
irrespondabilidad depende de una sola condicion. Hay o no perturbacion de la razon; el autor del hecho es o
no menor de nueve años; existe o no violencia material o moral irresistible, etc., etc.; tal es lo que
respectivamente hay que examinar y resolver para declarar la culpabilidad o inculpabilidad. Es, por lo tanto,
imposible que acontezca lo que el texto que va al frente de estas lineas rquiere, para que se imponga al autor
del hecho la penalidad excepcional que establece; esto es, que falten algunos requisitos de los que la ley
exige para eximir de responsabilidad, y que concurran el mayor numero de ellos, toda vez que, en los casos
referidos, la ley no exige multiples condiciones.

It must be taken into account the fact according to Article 69 a penalty lower by one or two degrees than that prescribed
by law shall be imposed if the deed is not wholly excusable by reason of the lack of some of the conditions required
by the law to justify the same or exempt from criminal liability. The word "conditions" should not be confused with the
word "requisites". In dealing with justifying circumstance No. 5 Judge Guevara states: "There are two requisites in
order that this circumstance may be taken into account: (a) That the offender acted in the performance of his duty or
in the lawful exercise of a right; and (b) That the injury or offense committed be the necessary consequence of the
performance of a duty or the lawful exercise of a right or office." It is evident that these two requisites concur in the
present case if we consider the intimate connection between the order given to the appellant by Capt. Monsod, the
showing to them of the telegram from Manila to get Balagtas who was with a bailarina named Irene, the conduct of
said appellants in questioning Brigida Mallari and giving a warning to the supposed criminal when both found him with
Irene, and the statement made by Capt. Monsod after the shooting.

If appellant Oanis is entitled to a reversal of the decision of the court below, there are more reasons in favor of the
acquittal of appellant Galanta. According to the evidence no bullet from the gun fired by this accused ever hit Serapio
Tecson. Galanta was armed in the afternoon of December 24, 1938, with a .45 caliber revolver (Exhibit L). He so
testified and was corroborated by the unchallenged testimony of his superior officer Sgt. Valeriano Serafica. According
to this witness, since Galanta was made a corporal of the Constabulary he was given, as part of his equipment,
revolver Exhibit L with a serial No. 37121. This gun had been constantly used by Galanta, and, according to Sgt.
Pedro Marasigan, who accompanied said accused when he took it from his trunk in the barracks on the night of
December 24, 1938, upon order of Captain Monsod, it was the same revolver which was given to the witness with five
.45 caliber bullets and one empty shell. Fourteen unused bullets were also taken from Galanta by Sergeant Serafica,
thus completing his regular equipment of twenty bullets which he had on the morning of December 24, 1938, when
Sergeant Serafica made the usual inspection of the firearms in the possession of the non-commissioned officers and
privates of the constabulary post at Cabanatuan. Galanta stated that he had fired only one shot and missed. This
testimony is corroborated by that of a ballistic expert who testified that bullets exhibits F and O, — the first being
extracted from the head of the deceased, causing wound No. 3 of autopsy report Exhibit C and the second found at
the place of the shooting, — had not been fired from revolver Exhibit L nor from any other revolver of the constabulary
station in Cabanatuan. It was impossible for the accused Galanta to have substituted his revolver because when
Exhibit L was taken from him nobody in the barracks doubted that the deceased was none other than Balagtas.
Moreover, Exhibit L was not out of order and therefore there was no reason why Galanta should carry along another
gun, according to the natural course of things. On the other hand, aside from wound No. 3 as above stated, no other
wound may be said to have been caused by a .45 caliber revolver bullet. Doctor Castro's record gives the conclusion
that wound No. 2 must have been caused by a .45 caliber revolver bullet. Doctor Castro's record gives the conclusion
that wound No. 2 must have been caused by a .45 caliber bullet, but inasmuch as the diameter of the wound's entrance
was only 8 mm., the caliber should be .32 and not .45, because according to the medico-legal expert who testified in
this case, a bullet of a .45 caliber will produce a wound entrance with either 11 mm. or 12 mm. diameter. All other
wounds found by the surgeon who performed the autopsy appeared to have been caused by bullets of a lesser caliber.
In consequence, it can be stated that no bullet fired by Galanta did ever hit or kill Serapio Tecson and therefore there
is no reason why he should be declared criminally responsible for said death.
G.R. No. 116524 January 18, 1996

PEOPLE OF THE PHILIPPINES plaintiff-appellee,

vs.
LYNDON FLORES y MALARAYAP, accused-appellant.

DECISION

MELO, J.:

Charged with murder in an Information reading as follows:

That on or about the 20th day of June 1993, at around 12:00 o'clock noon, in barangay Malusak, Municipality
of Boac, Province of Marinduque, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, did then and there, wilfully, unlawfully and feloniously, with deliberate intent to kill, and with
treachery, assault, attack, maim and violently kick the vital parts of the body of one Manuel Lazarte y Malvar,
while he was lying dead-drunk and unconscious on the pavement, inflicting upon him the following fatal
injuries:

Ruptured Small Intestine (jejunum) with spillage of the Intestinal content Intraperitoneally

Cause of Death:

Ruptured Viscus, allegedly secondary to mauling

(p. 3, Rollo.)
Lyndon Flores, upon arraignment, entered a plea of not guilty, and after trial on the merits, he was found guilty by the
court a quo in a decision which accordingly disposed:

In view of the above observations and findings, this Court found Lyndon Flores y Malarayap guilty beyond
reasonable doubt of the crime of Murder without any mitigating nor aggravating circumstance attendant to its
commission.

Under the rule on application of penalty and as enunciated in People vs. Muñoz, et al., G.R. No. L-38969-70,
February 9, 1989, 170 SCRA 107, reiterated in People vs. Sadia, Jr., G.R. No. 92633, Oct. 17, 1991, 203
SCRA 62-71, the proper penalty imposable is reclusion perpetua. Hence, Lyndon Flores y Malarayap is hereby
sentenced to suffer the penalty of RECLUSION PERPETUA together with the accessory penalty thereof
(People vs. Penilles, et al., G.R. No. 65673, 30 Jan. 1992; People vs. Catubig, G.R. No. 89732, Jan. 31, 1992).

The accused shall be credited with the full extent of his preventive imprisonment in accordance with the
provision of the Revised Penal Code.

The accused is hereby ordered to pay the heirs of the victim the surn of P50,000.00 as and for death indemnity;
the further sum of P30,000.00 for hospitalization and medicines and for the coffin and burial of Manuel Lazarte.

The body of the accused is hereby committed to the custody of the Director of Prisons, National Penitentiary,
Muntinlupa, Metro Manila, thru the Provincial Jail Warden of Marinduque.

Let the mittimus be prepared for the accused's immediate commitment.

(p. 25, Rollo.)

From said decision, the instant present appeal has been interposed, with accused-appellant putting up the general
allegations or, shot-gun type of arguments that the trial court erred in finding him guilty of murder instead of simple
homicide. In consequence, accused-appellant submits that the trial court erred when it imposed the penalty
of reclusion perpetua. We find no merit in the first argument. With regard to the second argument, we sustain accused-
appellant but on the basis of grounds other than those he proffers. But first to the background facts which were
capsulized by the trial court in this wise:

Cesar Lanot pointed to the accused who is in court and declared that at 12:00 noon of June 20, 1993, while
he was at the ground floor of their residence he saw Manuel Lazarte alias Ato being kicked by Lyndon Flores
alias Jojo (accused). Ato was then opposite Rustico Malvar's house lying on the pavement seven arms length
from him dead drunk. Thereafter, Ato Lazarte was brought to the hospital.

He explained that the accused hit Ato Lazarte at his stomach twice with the use of the right foot with Topsider
leather shoes.

He relayed that on that noon Ato's mother Emperatriz Lazarte had an altercation with the accused due to a
cassette belonging to the former. He was attracted by a commotion outside prompting him to go out so he
saw Lyndon kicking Manuel Lazarte who had been lying on the pavement five (5) minutes before the kicking.

Of the persons present around he can remember only Popong Mendoza, Taba, whose exact name he does
not know and Lydia Vargas. Thereafter, Ato Lazarte was brought to the hospital where he died two days after
the incident. He even dissuaded Jojo, saying "that is enough because Manuel will not fight back as he
remained lying", thereafter Flores left Ato.

Dr. Dante Osmillo of the Marinduque Provincial Hospital attended to Manuel Lazarte on June 20, 1993
identifying Exh. B, explaining that there was no swelling nor abrasion but found tenderness at the epigastric
area. The exploration of the intestine was done by Dr. Edgardo Marquez (Exh. B-2) without his assistance.

That at the time of admission the patient Manuel Lazarte was positive of alcoholic breath complaining of
epigastric pain. He did not see any abnormal physical appearance and no sign of external illness. The whole
body appeared to be normal However, in the afternoon of June 21, the victim complained of epigastric pain
such that believing it to be merely gas pain he gave medicine for such. He endorsed the patient normally to
another physician (Dr. Sevilla) there being no alarming sign and symptom.

Alfredo Alvarez declared that at 12:00 noon of June 20, 1993 after hearing a commotion outside their
residence at Malvar and Madrigal Streets, Boac, Marinduque he went out and found Emperatriz Lazarte
arguing with Lyndon Flores. Later he saw Lyndon kick Manuel Lazarte who was lying on the pavement dead
drunk in front of Malvar's residence about 4 armslenght away from him. Flores hit Lazarte three times at the
breast and stomach with Lyndon's left and right feet wearing leather shoes. Chic-Chic, Lyndon's companion,
held Manuel's breast shirt, slapped Manuel and dropped him. That it was Cesar Lanot who first pacified Lyndon
while Chic-Chic was just looking. Police arrived and together with others carried (inusong) Ato upstairs of their
residence, after which he went to the cockpit and did not know anything that transpired.
 He described that the kicking was by dropping the feet on the stomach, first by the right foot which landed on
the chest while the second and third at the stomach. He did not hear anything from Manuel Lazarte.

Emperatriz Lazarte, mother of the victim, claimed that at 12:00 noon on 20 June 1993 while watering her
plants she saw people outside their residence with her son lying prostrate on the pavement but did not know
why. She saw the accused Lyndon looking straight to her rubbing his hands. She recalled having lost her
cassette and was able to trace it at Salvo's Pawnshop pawned by the accused in his name. When Mrs. Salvo
refused to give it back she redeemed it for P20.00 and instructed Mrs. Salvo to inform anybody who will
complain to see her. Confronting the accused, exchange of words ensued which made Lyndon mad. Accused
Lyndon turned to her son and lacked him three times then pulled him by the shirt lifting his son then left him
fall. She got nervous because she heard the head hit the pavement. The accused was with other man, one of
whom was a certain Chic-Chic. That the accused was pacified by Cesar Lanot up to the time her son was
brought to her residence. Ato Lazarte was brought to the hospital that Sunday afternoon and died in the
evening of the following day, Monday.

That the victim was married with six children. She allegedly spent P30,000.00 for the hospital, coffin, church
and medicines.

Her son has no permanent occupation but earns. That the victim was not suffering from any illness before the
death but did not know why he was lying on the pavement that day.

Dr. Edgardo Marquez was consulted on June 21, 1993 to evaluate Manuels' condition whose abdomen was
distended and tender There was no clear hematoma on the abdomen. X-ray showed presence of air intra-
abdominally. Suspecting that there was ruptured viscus, they operated on and found ruptured intestines,
duodenum, with two (2) ruptured areas intra-abdominally with the abdomen body (chocolate color) with
alcoholic contents. He opined that it must have been caused by a strong blow, like repeated kicking on the
abdomen. Before the surgery the patient can communicate. The proximate cause of loss of fluid was intestinal
infection. He did not find any ulcer on the small intestines since there was no perforation. However, the
ruptures appeared to be about 2 or 3 days but there was no abscess.

(pp. 1-5, Decision; pp. 14-18, Rollo.)

Accused-appellant denies having kicked the victim. He asserts that he merely touched, with his right foot, the victim
who was lying dead drunk on the pavement to wake him up so that the victim could explain the circumstances of the
loss of Emperatriz Lazarte's cassette recorder. Emperatriz imputed to accused-appellant the loss of her cassette
recorder which she eventually found in a pawnshop from where she redeemed it. Accused-appellant insists that it was
the victim Manuel Lazarte who pawned the cassette recorder and so he was trying to wake up the victim so that the
latter could inform his mother that it was he who pawned the cassette recorder.

Accused-appellant's denial that he kicked the victim runs counter to the evidence on record. Prosecution witness
Cesar Lanot categorically testified that accused-appellant kicked the victim in the belly, thusly:

Q. What happened to Manuel Lazarte when he was kicked by the accused Lyndon Flores alias "Jojo"?

A. He was brought to the hospital, sir.

Q. When the accused kicked Manuel Lazarte, do you know if he was hit?

A. Yes, sir.

COURT:

Q. In what part of the body was he hit?

A. On the stomach, sir.

Q. How many times?

A. Two (2) times, sir.

Q. With what foot?

A. Right foot, sir.

FISCAL, OPIZ:

Q. What was the appearance of the accused at the time he kicked Manuel Lazarte?
 A. He was wearing shoes, sir.

Q. What kind of shoes?

A. He was wearing a topsider leather shoes, sir.

(p. 5, tsn., Oct. 5, 1993)

Cesar Lanots' testimony was corroborated by Alfredo Azaula who testified as follows:

Q. Who kicked Manuel Lazarte?

A. Lyndon Flores, sir.

Q. Who is this Lyndon Flores?

A. The accused, sir.

Q. Where was Manuel Lazarte when he was kicked by Lyndon Flores?

A. He was lying on the pavement in front of the house of the Malvars, sir.

Q. How far were you from Manuel Lazarte at that time?

A. More or less four arms length, sir.

Q. Where was Manuel Lazarte hit by the kicks of Lyndon Flores?

A. On the chest and stomach, sir.

Q. Did you observe the appearance of the feet of the accused which he used in kicking Manual Lazarte?

A. Yes, sir.

Q. Was he wearing anything?

A. Shoes, sir.

xxx xxx xxx

Q. Aside from kicking Manuel Lazarte what happened before the accused left the scene?

A. He held the collar of Manuel Lazarte and delivered a slapping blow on the face and then dropped
Manuel Lazarte on the cemented pavement, sir.

Q. How many times did the accused kick Manuel Lazarte?

A. Three times, sir.

(pp. 14-16, tsn., Oct. 7, 1993)

(pp. 10-12, Appellee's Brief; p. 70, Rollo.)

There is no reason to doubt the credibility of these prosecution witness and the veracity of their testimony. Their
statements are not tainted with any contradiction, inconsistency, or prevarication. As the trial court observed,
witnesses testified in a candid, categorical, and consistent manner, lending much credibility to their declarations and
making their testimony deserving of full faith and credit (People vs. Barte, 230 SCRA 401 [1994]).

Likewise, there being nothing on the record to show that said witnesses were actuated by any improper motive, their
testimony shall be entitled to full faith and credit (People vs. Dela Cruz, 229 SCRA 754 [1994]). Moreover, it is settled
that when the credibility of witnesses is at issue, appellate courts will not disturb the findings of the trial court, the latter
being in a better position to decide the question, having heard the witnesses and observed their deportment and
manner of testifying during the trial, unless certain facts of substance and value had been overlooked which, if
considered, might affect the result of the case (People vs. Gomes, 230 SCRA 270 [1994]). Much as one way may
scour the record, no such fact of substance or value seems to surface. Accused-appellant's denial is a feeble defense
which cannot stand against the positive testimony of the eyewitnesses to the crime (People vs. Gomes, 229 SCRA
138 [1994]). The findings of fact of the trial court, therefore, stands.
The testimony of accused-appellant that he merely touched or nudged with his foot the victim as the victim was lying
dead drunk on the pavement in order to wake him up so that he may explain to his mother the circumstances
concerning the pawning of a cassette recorder is totally negated by the extent of the injuries suffered by the victim.
Had accused-appellant merely poked or nudged the victim with his foot, the latter would not have suffered any injury,
much less deadly damage to internal organs. Verily, the foot jabs delivered by accused-appellant to the victim were
more than nudges, but severe kicks which ruptured the intestines of the victim, later resulting in his death. Dr. Edgardo
Marquez, the attending physician, had this to say on the point:

Q. Did you make any surgery?

A. We had an impression that there is rupture of the viscus pre-operatively so, we did an emergency
surgery, exploratory laparatomy on the patient.

Q. What step was done next?

A. We did an exploratory laparatomy and the operative findings are the following:

There is ruptured small intestines in particular the jejunum with two ruptured areas intra abdominally. The
abdomen was filled with bloody chocolate colored fluid with alcoholic scent. The whole intestines are soaked
with spilled intestinal contents.

Q. What could have caused the ruptures viscus, Doctor?

A. This was possibly caused by a very strong blow.

Q. Could repeated kicks to the abdomen have caused the injuries?

A. Possible, sir.

(p. 4, tsn., Dec. 3, 1993)

(pp. 12-13, Appellee's Brief; p. 70, Rollo.)

Accused-appellant's finally contends that the crime he committed is homicide and not murder.

Such contention is devoid of merit. The evidence clearly establishes the fact that the victim was totally unconscious,
dead drunk, lying on the pavement, when accused-appellant administered strong, vicious, and as borne out later,
killing kicks at the belly of the victim. Totally unconscious at the time of the attack, the victim could not have put up
any defense whatsoever against the sudden assault by the accused-appellant. Unquestionably, the attack was
characterized by treachery. An attack upon an unconscious victim who could not have put up any defense whatsoever
is treacherous. There was absolutely no risk to accused-appellant from any defense that the victim might have make.
There is treachery when the offender commits any of the crimes against the person, employing means, methods or
forms in the execution thereof which tends directly and specially to insure its execution, without risk to himself arising
from the defense which the offended party may make (No. 16, Article 14, Revised Penal Code).

Nonetheless. we believe the trial court erred when it imposed the penalty of reclusion perpetua on accused-appellant.

Under Paragraph 1, Article 4 of the Revised Penal Code, criminal liability is incurred by any person committing a
felony (delito) although the wrongful act done be different from that which he intended. Thus, anyone who inflicts
injuries voluntarily and with intent is liable for all the consequences of his criminal act, such as death that supervenes
as a consequence of the injuries. Here, accused-appellant is liable for the demise of the victim for such was caused
by the violent kicks which he inflicted on the vital parts of the victim's body. And, as earlier discussed, since the assault
was qualified by treachery the crime committed is murder and not homicide as suggested by accused-appellant.

However, the mitigating circumstance of lack of intent to commit so grave a wrong as that committed (Paragraph 3,
Article 13, Revised Penal Code) should be appreciated in favor of accused-appellant for he had no intent to kill when
he attacked the victim. His intention was merely to inflict injuries on the victim.

Thus, the trial court erred in imposing the penalty of reclusion perpetua for it failed to appreciate the mitigating
circumstance of lack of intent to commit so grave a wrong as that committed in favor of the accused-appellant. Under
Article 248 of the Revised Penal Code, the penalty for the crime of murder is reclusion temporal in its maximum period
to death. There being no aggravating circumstance to offset the mitigating circumstance of lack of intent to commit so
grave a wrong as that committed, the imposable penalty is reclusion temporal in its maximum period, or 17 years, 4
months, and 1 day, to 20 years, the minimum of the penalty provided for by law (Paragraph 2, Article 64, Revised
Penal Code). Applying the Indeterminate Sentence Law, the penalty next lower in degree is prision mayor in its
maximum period to reclusion temporal in its medium period or 10 years and 1 day of prision mayor to 17 years and 4
months of reclusion temporal (People vs. Espinosa, 243 SCRA 7 [1995] citing People vs. Roel Ponayo Y Villanueva,
G. R. No. 111523, August 10, 1994).
The Court is not unaware of the New Death Penalty Law (Republic Act No. 7659) which took effect on December 31,
1993 (People vs. David, 235 SCRA 366 [1994]), amending Article 248 of the Revised Penal Code by increasing the
imposable penalty for murder to reclusion perpetua to death. But such amendment cannot be applied to the present
case for the crime was committed on June 20, 1993, before the effectivity of the Republic Act No. 7659.

WHEREFORE, the decision appealed from is HEREBY AFFIRMED with the modification that accused-appellant IS
HEREBY SENTENCED to an indeterminate prison term of ten (10) years and one (1) day of prision mayor, as
minimum, to seventeen (17) years and four (4) months, and one (1) day of reclusion temporal (People vs. Sarol, 139
SCRA 125 [1985]), as maximum.

No special pronouncement is made as to costs.

SO ORDERED.

G.R. No. 177223 November 28, 2007

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
CASTOR BATIN, Accused-Appellant.

DECISION

CHICO-NAZARIO, J.:

We are reviewing herein the Decision1 of the Court of Appeals dated 6 February 2007, in CA-G.R. CR HC No. 01396,
affirming the Decision of the Regional Trial Court (RTC) of Quezon City, convicting father and son, Castor and Neil
Batin, of the crime of murder. The conviction was for the killing of one Eugenio Refugio, who was shot in the afternoon
of 21 October 1994, while he was leaning against a mango tree near his house on St. Peter Street, San Paolo
Subdivision, Nagkakaisang Nayon, Novaliches, Quezon City.

The Information2 against Castor and Neil Batin was filed by the Office of the City Prosecutor of Quezon City on 11
April 1995, alleging as follows:

That on or about the 21st day of October, 1994, in Quezon City, Philippines, the above-named accused, conspiring
together, confederating with and mutually helping each other, did, then and there, wilfully, unlawfully and feloniously,
with intent to kill, with treachery, taking advantage of superior strength, and with evident premeditation, attack, assault
and employ personal violence upon the person of one EUGENIO REFUGIO y ZOSA, by then and there shooting him
with a handgun, hitting him on the right side of his stomach, thereby inflicting upon him serious and mortal wounds
which were the direct and immediate cause of his untimely death, to the damage and prejudice of the heirs of said
Eugenio Refugio y Zosa, in such amount as may be awarded under the provisions of the Civil Code.

Castor and Neil Batin entered pleas of not guilty.

The prosecution, presented as its witnesses Eusebio Farrales, Vilma Juadinez Rodriguez, Florante Baltazar,
Josephine Refugio, PO3 Marifor Segundo and Police Inspector Solomon Segundo, offered the following version of
the facts, as summarized by the trial court:
Eugenio’s wife, Josephine Refugio, was with him when he was shot, facing him as he leaned against the mango tree
and, in fact, had her arms resting on his shoulders. She recalled that before the shooting, she was at home at No. 4-
A St. Peter Street that afternoon when, looking out of the window, she caught sight of Castor Batin washing his feet
at a nearby faucet. Castor was angrily muttering, and she distinctly heard him say, among the other things he said:
"Mga matatandang kunsintidor, dapat manahimik na." Then, being through with washing himself, Castor moved
towards the street. Seeing this, she went down and also went to the street because of a feeling of uneasiness ("Para
po akong kinakabahan, kasi, ganoon naman ang ginagawa nila lagi, eh, pag nalalasing"). Finding her husband leaning
against the mango tree on the side of St. Peter Street, she went to him. She tried to talk Eugenio into going home with
her because Castor was again into one of his wild ways ("Nagwawala na naman, daldal ng daldal"). As he was talking
with Eugenio, she glanced to her left and saw Neil Batin standing at the gate to their (Batins’) compound, looking
towards her and her husband. A few moments later, Neil went to one of the parked cars, opened its door, and took a
gun from inside. She next noticed Castor going towards Neil as the latter stood at the side of the car and shouting:
"Huwag!" Castor grabbed the gun from Neil. After the gun was taken from him, Neil just proceeded towards the right
rear of the car. Castor followed Neil and handed the gun back to him.

When she shifted her glance from the Batins, Josephine heard Castor ordering his son: "Sige, banatan mo na." Neil
responded by drawing the gun from his waistline, raising and aiming it at her and her husband, and firing twice from
his eye-level. Both Josephine and Eugenio fell to the ground, the former, backwards, and the latter landing on top of
her. As they tried to get up, Eugenio uttered to her: "Nanay, may tama ako." She then pulled her husband by the
shoulder of his shirt so that she could take him to their house as he was already slumped to the right. She later rushed
her husband to the Quezon City General Hospital, where he underwent surgery, but later expired.

Other eyewitnesses from the neighborhood were presented and they substantially corroborated her testimonial
account.

One of them, Eusebio Farrales, a resident of No. 7 St. Paul Street, in relation to which St. Peter Street was
perpendicular, recalled being at the barangay outpost near the corner of St. Peter Street and St. Paul Street between
3:00 and 3:30 pm of the afternoon of October 21, 1994 – engaged in the clearing of the debris of the recent typhoon
– when he heard someone cursing and challenging to a fight. Walking towards St. Peter Street where the voice came,
he saw that it was Castor. He also saw other neighbors, namely, Eugenio, Josephine, and Eugenio’s mother, Emilia
Refugio. According to Farrales, Castor was moving aimlessly for around five minutes ("Walang direktion at pa-ikot ikot
lang siya doon") while cussing: "Putang ina ninyo, sino ang matapang lumabas."

Farrales stated that a white car and a white-and-yellow colored taxicab were parked on the side portion of the street
fronting the gate to the compound of the Batins and near where Eugenio and Josephine stood. Emilia, the mother of
Eugenio, then came towards him, but he advised her to seek assistance from the barangay tanod. After Emilia
proceeded towards St. Paul Street to do so, Neil came out through the gate, opened the door of the white car, took
out a gun from inside, and handed the gun to Castor, but the latter returned the gun to Neil. Upon getting back the
gun, Neil reentered the yard through the gate.

Farrales asserted that in the meanwhile Eugenio remained leaning against the mango tree with Josephine facing him
and her arms resting on his shoulders. They were in this position when Neil again came out through the gate a few
moments later and proceeded to the right side of the car, still holding the handgun. From there, Neil fired twice at the
Refugios. The Refugios both fell to the left of the mango tree. Farrales saw both Castor and Neil quickly enter the
compound. At that point, Farrales decided to run home in order to summon Alfredo Dizon, his tenant, who was a police
officer because he feared that the Batins might escape from the scene by car.

Farrales and Dizon lost no time in going to the place of the Batins. After Dizon talked with Castor at the gate of the
latter’s compound, the latter entered the house of his nephew, Ricky Basilio, which was beside Castor’s own house.
A few moments later, Castor came out of Basilio’s house to let Dizon in through the gate. It was about this time that
the responding police officers arrived at the scene. The victim had been rushed to the hospital immediately.

Another neighbor, Vilma Juadines Rodriguez, resident of No. 7-A St. Peter Street, declared that while she was at
home taking care of her baby at between 3:00 and 3:30 pm of October 21, 1994, she heard someone challenging
others to a fight; that looking out of her window ("dungaw"), she saw that it was Boy Batin – Castor – and he was then
walking about on St. Peter Street; that just then, her child cried, and so she went to him; that upon returning to the
window to call her other child, she saw Castor hand over a handgun to Neil, and the latter thereafter entered through
their gate; that she next saw Neil load bullets into the gun and then tucking it in his right waistline; that after loading,
Neil went out to the street, went between the parked white car and yellow taxicab, aimed the gun at Eugenio and
Josephine who were at the mango tree, and then asked Castor: "Tay, banatan ko na?"; that Castor replied: "Sige,
anak, banatan mo na." that, at that instant, Neil fired two shots; that as she went down to get her other child upon
hearing the gunshots, she heard Josephine say: "Tay, may tama ka"; that she later reentered her house; and that she
knew that Eugenio died afterwards.

Although Eugenio was rushed to the Quezon City General Hospital right after the shooting and was operated on, he
expired the next day. His remains were properly identified in writing by his brother, Tito Eugenio.3

The medico-legal officer of the PNP Crime Laboratory Service, Dr. Florante Baltazar, conducted an autopsy on
Eugenio’s remains. In his Medico-Legal Report No. M-1715-94,4 he indicated that Eugenio sustained one gunshot
wound, which was, however, fatal, because "it went slightly upward, slightly anteriorward from the right to the left of
the body, fracturing the right to [the] left [of the] thoracic region, lacerating the right lumbar region." Dr. Baltazar made
the certification as to the cause of death in the death certificate.5

Upon a written request6 from the Novaliches Police Station, Quezon City, Police Inspector Solomon Segundo, Chief
of the Firearms Identification Branch of the Central Crime Laboratory, Northern Police District Command, Quezon
City, conducted the ballistics examination to ascertain whether or not the bullet recovered from the victim was fired
from the specimen firearm submitted for examination. P/Insp. Segundo prepared Ballistics Report No. B-042-
94,7 wherein he certified that the bullet from the recovery box8 and the bullet recovered from the victim’s body9 were
fired from the same specimen firearm.10 This conclusion was arrived at after a test fire and a comparison under the
bullet comparison microscope.

The defense, on the other hand, presented accused Neil Batin, Castor’s common-law wife Maricon Pantoja, and one
Restituto Paller. Neil Batin’s testimony is summarized by the trial court as follows:

Neil substantially claimed that it was his responsibility to conduct his younger brothers to school and fetch them by
car; that he also drove their taxicab; that it was about 7:00 o’clock in morning of October 21, 1994, while he was
cleaning the family-owned taxicab, that he found a short gun ("de bola") underneath it beside the right rear wheel; that
he picked the gun and concealed it in the compartment of the taxicab; that he continued with his chore of cleaning;
that as soon as he finished cleaning the taxicab, he drove the white Datsun car to Tondo to fetch his six-year old
brother Mark, the son of his father with Maricon Pantoja; that Mark was a pupil at the Magat Salamat Elementary
School in Tondo; that after picking up Mark, they drove to the house of his uncle, Domingo Batin, in Marulas,
Valenzuela, to get his clothes from his cousin; that they arrived there at 11:00 am, and spent around two hours there;
that from Marulas, they went home, arriving at St. Peter Street at around 2:30 pm; that he parked the car on the road
in front of their fence; that he and Mark first entered the house to deposit Mark’s school things and later went outside
to await the arrival of Mark’s mother; that his other brothers were outside; that Castor was also outside talking with a
man whose name he did not know but whom he had seen thrice before as well as with Boy Iñigo in front of the latter’s
house; that Iñigo’s house was 15 meters from their gate; that Pantoja soon arrived at around 2:45 pm; that he
continued talking and playing with his brothers; and that at that point he decided to take the gun from the compartment
of the taxicab – then parked around 2 ½ meters away from where he and his brothers were – and tucked it in his
waistline.

Having thus tucked the gun, Neil went to stand at the right rear side of the Datsun car which was parked facing the
mango tree ("halos magkatapat lang po"). Maricon came out to the street at that point to ask him about the time he
had fetched Mark. It was while he was standing there with the others that, according to Neil, he suddenly felt the
impulse of drawing the gun from his waistline ("Bigla kong naisipang bunutin ang baril"). He thus drew the gun and
turned around, but, as he did so, he accidentally pulled the trigger, causing the gun to fire twice ("Tumalikod po ako,
tapos nakalabit ko, pumutok ng dalawang beses").

Neil admitted knowing the late Eugenio Refugio and his wife Josephine because they were his neighbors with only a
high wall separating their houses; but denied seeing them that afternoon beside the mango tree.

At the sound of gunfire, Castor rushed towards Neil from where he was in front of Iñigo’s house, shouting twice to his
son: "Huwag!" Pantoja, for her part, forced Neil to enter the compound, where she brought him inside the house of his
aunt. Neil concealed the gun in the ceiling of the aunt’s house.

Neil said that he and his father did not grapple inside the Datsun car for possession of the gun; that his father did not
wrest the gun from him; that he did not enter the compound to put bullets in the gun; that his father did not order him
to shoot Eugenio; and that his father was not drunk and challenging others to a fight. He insisted that he and the
Refugios, with whom he was acquainted since 1987, had no misunderstandings, for he even had shared drinks with
the late Eugenio before October 21, 1994.11

As regards the testimonies of the defense’s two other witnesses, the trial court could not make an intelligible narrative
of the version of the facts presented by them, considering the contradictions it found in their testimonies. The trial
court found glaring Maricon Pantoja’s "self-contradiction" as to where she and the accused were when Eugenio was
shot. During the trial, Maricon testified that she, Neil and Castor were outside their house when Neil drew the gun and
accidentally fired. However, in her affidavit,12 she alleged that they went outside their house upon hearing a gun
explosion and saw "Eugenio Refugio alone holding his stomach x x x we have no any knowledge whether he was hit
by a bullet."13

On 8 June 1998, the trial court rendered its Decision finding both accused guilty of murder, qualified by treachery, to
wit:

WHEREFORE, judgment is hereby rendered finding the accused CASTOR BATIN and NEIL BATIN guilty beyond
reasonable doubt of the crime of MURDER as defined and penalized under Art. 248, Revised Penal Code, as
amended, and they are hereby each sentenced to suffer reclusion perpetua; and ordered to pay the heirs of EUGENIO
REFUGIO, through his wife, JOSEPHINE REFUGIO, as follows:

1] P50,000.00, as death indemnity;

 2] P61,500.00, as actual damages;

3] P500,000.00, as moral damages;

4] P307,920.00, as indemnity for lost of earning capacity; and

5] The costs of suit.14

Neil and Castor Batin filed an appeal with the Court of Appeals. However, on 13 November 2000, accused Neil Batin
filed an Urgent Motion to Withdraw Appeal. The People interposed no objection to the Motion, which was granted.

On 6 February 2007, the Court of Appeals rendered the assailed Decision affirming, with modification, the Decision
of the trial court, to wit:

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Quezon City, Metro Manila in
Criminal Case No. Q-95-61003 is hereby AFFIRMED with MODIFICATION as to civil liabilities. With the exception of
the award of moral damages which is reduced to P100,000.00 and the indemnity for loss of earning capacity which is
increased to P723,840.00, the awards for death indemnity and actual damages are retained.15

Castor Batin now comes before this Court, assigning the following errors:

THE HONORABLE COURT OF APPEALS AND THE TRIAL COURT GRAVELY ERRED IN FINDING THE
ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT AS PRINCIPAL FOR INDUCEMENT
FOR THE CRIME CHARGED.

II

THE HONORABLE COURT OF APPEALS AND THE TRIAL COURT GRAVELY ERRED IN APPRECIATING
THE AGGRAVATING CIRCUMSTANCE OF TRACHERY.16

Castor Batin prays that the Decision of the Court of Appeals be reversed and set aside and a new one entered
acquitting him of the crime charged. In the alternative, he prays that he be held liable for the crime of homicide only,
arguing that the qualifying circumstance of treachery was not sufficiently stated in the Information.

Whether there was conspiracy in the killing of Eugenio Refugio

It is evident from Castor’s Supplemental Brief and all his other issuances after the withdrawal of Neil’s appeal that he
had already discarded Neil’s theory of accidental shooting. Instead, his arguments are geared toward his distancing
himself from the act of Neil in shooting Eugenio Refugio.

We cannot, however, dispose of the discussion of Neil’s theory of accidental shooting. As Neil’s testimony had been
the only evidence presented by the defense to rebut the prosecution’s evidence concerning the acts of Castor during
the incident, we should carefully scrutinize Neil’s testimony to determine his credibility.

Neil claims that while his back was still turned against the Refugios, he suddenly felt the impulse to draw the gun from
his waistline. He drew the gun, turned around with the gun in hand, and accidentally fired it twice without aiming it at
anyone.

As held by the trial court, this account is plainly far-fetched and incredible. As observed by the trial court,

The revolver involved herein was a mechanical firearm which belonged to the so-called double-action type of guns.
This type has a firing mechanism which permits two methods of firing – the first is by manually cocking or retracting
the hammer and then pressing the trigger to release the hammer; the second is by applying continuous pressure on
the trigger in order to cock the hammer and then releasing the trigger. The drop of the hammer by either method
propels the firing pin forward so that its other end strikes the primer cap to explode the propellant charge inside the
shell which then forces out the bullet through the gun barrel. From the nature of the firing mechanism of Exhibit O,
and there being no evidence showing that the hammer was manually cocked before the gun fired, it was absolutely
physically impossible for the gun to fire accidentally.

In order to determine for himself how much pressure was necessary to cock the hammer into firing position, the
undersigned presiding judge personally tested the trigger pull of Exhibit O. Even assuming that the passage of time
from the date of the shooting caused some change on the efficiency of the firing mechanism, such change can only
show up by way of a weakening of the hammer spring. Nonetheless, it was not surprising for the undersigned presiding
judge to find heavy resistance at each trigger pull, such that he exerted some force to cock the hammer. This actual
testing easily validated the conclusion that firing the gun accidentally and unintentionally was impossible.17
Neil’s claim that he accidentally fired the gun twice in quick succession is, thus, even more incredible. Given the
difficulty of pulling the trigger to cock the hammer into firing position, it is inconceivable how the gun could have been
fired by Neil twice in quick succession except by a deliberate and intentional pulling of the trigger.

Given the physical attributes and condition of the gun involved in the case at bar, the testimony of Eusebio Farrales
is likewise observed to be much more credible than that of Neil. Whereas Neil claims that he accidentally fired the gun
twice using only one hand, Eusebio Farrales testified that Neil fired at the Refugios while holding the gun with both
hands and from a standing position.

While the maxim falsus in uno falsus in omnibus is not an absolute rule of law and is in fact rarely applied in modern
jurisprudence,18 Neil’s credibility has been severely tarnished by the foregoing portion of his testimony. Thus, we
should likewise take with a grain of salt the following parts of his testimony which tend to refute the account of the
prosecution concerning the acts of Castor during the incident: (1) that Neil and Castor did not grapple inside the
Datsun car for possession of the gun; (2) that Castor did not wrest the gun from him; (3) that Neil did not enter the
compound to put bullets in the gun; (4) that Castor did not order Neil to shoot Eugenio; and (5) that Castor was not
drunk and challenging others to a fight.

As stated above, Castor has already discarded Neil’s theory of accidental shooting and, instead, focuses on distancing
himself from the act of Neil in shooting Eugenio Refugio. Castor’s principal defense in this appeal is that the conviction
of a person as a principal by inducement requires (1) that the inducement be made with the intention of procuring the
commission of the crime; and (2) that such inducement be the determining cause of the commission by the material
executor.19

Castor claims that there is no conclusive proof that he participated in the shooting, and that "(h)is alleged utterance
of the words ‘Sige, banatan mo na’" cannot be considered as the moving cause of the shooting. According to Castor,
if he had wanted his son to shoot Eusebio Refugio, he would not have shouted "Huwag" and struggled for possession
of the gun.

We are not persuaded.

First of all, the theory presented by the prosecution in both the Information and in their arguments before the courts is
not Castor’s being a principal by inducement, but rather his being a co-conspirator. If conspiracy is proven, the act of
one is the act of all. As stated above, the widow, Josephine Refugio, and the neighbors -- Eusebio Farrales and Vilma
Juadinez Rodriguez -- testified to the fact that Castor handed the gun to Neil and urged the latter to fire at the Refugio
spouses. The trial court, whose assessment of the credibility of witnesses deserves great respect, since it had the
important opportunity to observe first-hand the expression and demeanor of the witnesses at the trial,20 found these
witnesses credible, thus:

From its careful and thorough evaluation of the record, the Court finds that Castor and Neil conspired in shooting
Eugenio. This finding is inexorable because the testimonies of the Prosecution witnesses – that Castor returned the
gun back to Neil; that he instigated Neil to shoot by shouting: "Sige, banatan mo na"; and that Neil then fired his gun
twice – were credible and sufficed to prove Castor’s indispensable cooperation in the killing of Eugenio. Accordingly,
Castor was as much liable criminally for the death of Eugenio as Neil, the direct participant in the killing, was.

The reliability of witnesses Farrales and Rodriguez, for one, cannot be doubted. Being the neighbors of both the Batins
and the Refugios, their claim of witnessing the events that culminated into the shooting of Eugenio was unassailable.
The accused, in fact, could not provide any reason or motive for them to testify against the Batins unless it was upon
the truth.21

While Castor was indeed heard to have shouted "Huwag," this cannot be considered as reliable evidence that he tried
to dissuade Neil from firing the gun. It was established by credible testimony that he handed back the gun to Neil and
urged him to shoot the Refugio spouses. Josephine Refugio plainly stated on cross-examination that Castor shouted
"Huwag" while inside the car grappling for possession of the gun, and not when Neil was aiming the gun at the
spouses. Thus:

(Atty. Siobal Cross-examining)

Q The second time around that you saw him was when he moved towards the right rear of the car?

A I did not remove my sight at Neil Batin as he moved towards this car, sir.

Q Also, without moving your glance or gaze at Neil Batin, you saw him proceed to the right rear portion of the car and
open the right rear door of said car, is it not?

A Yes, sir.

Q And without also removing your gaze or sight at Neil Batin, you saw him open and get a gun inside the car?
A I saw Neil Batin opened the right rear door, as if he is putting all his body inside the car, when Mang Boy took hold
of Neil, they were grappling for possession of the gun, and raised it above, and that was the time when my husband
saw the gun raised, and I also saw the gun.

Court

So they were both inside the car, their arms were both inside the car and the gun was inside the car when you and
your husband saw this particular scene?

A Yes, your Honor.

Atty. Siobal

So you saw Castor Batin and Neil Batin grappling for the gun when they were inside the car?

A Yes, sir, and then Castor Batin shouted "huwag."

Q And at that time they were grappling for the gun inside the car and Castor Batin shouted "huwag," after that, you
and your husband saw the gun atop the roof of the car, is that what you want to convey to the Court?

A The gun was still inside the car, only we saw it through the glass window, sir.

Q And what happened after that?

A Neil Batin got out of the car, followed by Castor Batin and then Castor gave the gun to Neil, and after receiving the
gun, Neil placed the gun at his waist, sir.

Q You said Neil Batin got out of the car ahead of Castor Batin, where did Neil Batin go or proceed, to what direction?

A He proceeded to that place labeled as Exhibit G-7, sir.

Q And you said Castor Batin followed Neil Batin to the place where he proceeded here at Exhibit G-7?

A Yes, sir.

Q Of course, when Neil Batin got out of the car ahead, his back, he must have turned his back from you?

A He was sidewise in relation to me, sir.

Q How about Castor Batin, when he got out of the car, he must have turned his back from you?

A Yes, sir.

Q And where was Castor Batin facing when you said he gave the gun to Neil Batin?

A He was facing Neil, sir.22

As concluded by the trial court, the circumstances surrounding Castor’s utterance of "Huwag!" shows beyond doubt
that Castor shouted the same, not to stop Neil from firing the gun, but to force him to leave the use of the gun to
Castor. These circumstances only confirm the conspiracy between the Batins in committing the crime: after the Batins
grappled for the gun and Castor shouted "Huwag," Castor finally decided to give the gun to Neil – a crystal-clear
expression of the agreement of the Batins concerning the commission of a felony.

Conspiracy may also be deduced from the acts of the appellants before, during, and after the commission of the crime
which are indicative of a joint purpose, concerted action, and concurrence of sentiments.23 Prosecution witnesses
Josephine Refugio and Eusebio Farrales positively indicated in their testimonies that prior to the shooting of Eugenio
Refugio, Castor was drunk, was openly challenging others to a fight, and was uttering angry words. It was at this
juncture that witnesses saw Neil retrieve his gun from the parked car, after which Castor grabbed the gun from his
son, grappled with it, returned it to his son, and ordered the latter to shoot the Refugios.

Secondly, even if we pursue the theory that the defense is trying to stir us to, the results would be the same. Castor’s
argument is that "(h)is alleged utterance of the words ‘Sige, banatan mo na’ cannot be considered as the moving
cause of the shooting and, therefore, he cannot be considered a principal by inducement.

Inducement may be by acts of command, advice or through influence or agreement for consideration. The words of
advice or the influence must have actually moved the hands of the principal by direct participation. We have held that
words of command of a father may induce his son to commit a crime. In People v. Tamayo,24 we held that the moral
influence of the words of the father may determine the course of conduct of a son in cases in which the same words
coming from a stranger would make no impression.

There is no doubt in our minds that Castor’s words were the determining cause of the commission of the crime. As
stated above, Vilma Juadines Rodriguez testified that the eighteen-year-old Neil Batin asked his father before
shooting: "Tay, banatan ko na?" Neil Batin was clearly seeking the consent of his father before proceeding with the
act, and it was Castor’s words "Sige, banatan mo na"25 that sealed Eugenio Refugio’s fate.

Whether treachery was specifically alleged in the Information

There is treachery when the offender commits any of the crimes against a person, employing means, methods, or
forms in the execution thereof which tend directly and specially to ensure its execution, without risk to himself arising
from the defense which the offended party might make.26

According to the trial court, treachery was attendant in the killing of Eugenio because Castor ordered Neil to fire at
Eugenio after they clearly saw that he was still leaning against the mango tree and being restrained by Josephine who
had her arms on his shoulders. Thereby, "the accused insured their safety from any defensive or retaliatory act of
Eugenio who, in that position of helplessness and unpreparedness, obviously had no opportunity to defend himself or
to retaliate even if he wanted to. The accused thus consciously used the firearm to assault from a distance, all the
more to enhance the chances of killing the victim without risk to themselves."27

Castor does not refute the above findings of the trial court that treachery was sufficiently proven during the trial. All
that Castor claims before us is that the qualifying circumstance of treachery was not specifically alleged in the
Information. The Information filed against the Batins states that "the accused, conspiring together, confederating with
and mutually helping each other, did, then and there, wilfully, unlawfully and feloniously, with intent to kill, with
treachery, taking advantage of superior strength, and with evident premeditation, attack, assault and employ personal
violence upon the person of one EUGENIO REFUGIO y ZOSA, by then and there shooting him with a handgun, hitting
him on the right side of his stomach, thereby inflicting upon him serious and mortal wounds which were the direct and
immediate cause of his untimely death."28 Castor claims that this charge does not allege the specific treacherous acts
of the accused. According to Castor, the allegation therein that the accused "with treachery x x x, attack, assault and
employ personal violence" is a mere conclusion of law by the one who drafted the said Information. Hence, it did not
satisfy the test of sufficiency of Information as provided in Sections 8 and 9 of Rule 110 of the Rules of Court.

Sections 8 and 9 of Rule 110 provides:

SEC. 8. Designation of the offense.—The complaint or information shall state the designation of the offense given by
the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating
circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the
statute punishing it.

SEC. 9. Cause of the accusation.—The acts or omissions complained of as constituting the offense and the qualifying
and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language
used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being
charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment.

Pertinently, we have held in Balitaan v. Court of First Instance of Batangas29 that the main purpose of requiring the
various elements of a crime to be set forth in an Information is to enable the accused to suitably prepare his defense.
He is presumed to have no independent knowledge of the facts that constitute the offense. We added in said case
that

[I]t is often difficult to say what is a matter of evidence, as distinguished from facts necessary to be stated in order to
render the information sufficiently certain to identify the offense. As a general rule, matters of evidence, as
distinguished from facts essential to the description of the offense, need not be averred. For instance, it is not
necessary to show on the face of an information for forgery in what manner a person is to be defrauded, as that is a
matter of evidence at the trial.

We hold that the allegation of treachery in the Information is sufficient. Jurisprudence is replete with cases wherein
we found the allegation of treachery sufficient without any further explanation as to the circumstances surrounding it.
Here are some of the cases:

In People v. Lab-eo,30 Wilson Lab-eo was indicted for murder under the following Information:

That on or about October 21, 1996, at the Barangay Hall, Poblacion, Tadian, Mountain Province, and within the
jurisdiction of this Honorable Court, the above-named accused with intent to kill and with the use of a sharp knife, did
then and there willfully, unlawfully and feloniously attack, assault, strike and stab Segundina Cay-no with a well-honed
and pointed knife and thereby inflicting a mortal stab wound upon the victim as reflected in that medico-legal certificate,
to wit:
Stab wound infrascapular area left, penetrating with massive hemathorax, which caused the death of the victim
thereafter.

That the aggravating circumstances of evident premeditation, treachery, abuse of superior strength and craft attended
the commission of the offense.

The accused in this case argued that the Information above, while captioned as "Murder," only charged him with
homicide as written. This Court found nothing wrong with the Information, and ruled that the Information sufficiently
charged the accused with murder, not even considering the absence of an explanation of the treachery stated therein,
thus:

The fact that the qualifying circumstances were recited in the second paragraph and not in the first paragraph of the
Information, as commonly done, is a matter of form or style for which the prosecution should not be faulted. That the
Provincial Prosecutor decided to write the Information differently did not impair its sufficiency. Nothing in the law
prohibits the prosecutor from adopting such a form or style. As long as the requirements of the law are observed, the
Information will pass judicial scrutiny.

xxxx

The test of sufficiency of Information is whether it enables a person of common understanding to know the charge
against him, and the court to render judgment properly. The rule is that qualifying circumstances must be properly
pleaded in the Information in order not to violate the accused’s constitutional right to be properly informed of the nature
and cause of the accusation against him. The purpose is to allow the accused to fully prepare for his defense,
precluding surprises during the trial. Significantly, the appellant never claimed that he was deprived of his right to be
fully apprised of the nature of the charges against him because of the style or form adopted in the Information.31

This Court went on to affirm the conviction of the accused therein with murder qualified by treachery.

The allegation in the Information of treachery as a qualifying circumstance was similarly assailed in People v.
Opuran,32 wherein the charge was as follows:

Criminal Case No. 4693

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

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

This Court again rejected the argument of the defense by finding the allegation of treachery sufficient, and later on
finding the accused therein guilty of murder qualified by treachery:

We do not find merit in appellant’s contention that he cannot be convicted of murder for the death of Demetrio, Jr.
because treachery was not alleged with "specificity" as a qualifying circumstance in the information. Such contention
is belied by the information itself, which alleged: "All contrary to law, and with the attendant qualifying circumstance
of treachery." In any event, even after the recent amendments to the Rules of Criminal Procedure, qualifying
circumstances need not be preceded by descriptive words such as qualifying or qualified by to properly qualify an
offense.33

Finally, the following constitutes the Information in People v. Bajar34 :

That on or about the 16th day of August 1999, at about 8:00 o’clock in the evening, at sitio Mohon, Barangay
Mambayaan, Municipality of Balingasag, Province of Misamis Oriental, Republic of the Philippines, and within the
jurisdiction of this Honorable Court, the above named accused, then armed with a sharp bolo, with intent to kill, and
with evident premeditation, and treachery, did then and there willfully, unlawfully and feloniously stab one 85 year old
Aquilio Tiwanak, accused’s father-in-law, hitting him on the different parts of his body, which caused his instantaneous
death, to the damage and prejudice of the heirs of Aquilio Tiwanak in such amounts as may be allowed by law.

The aggravating circumstances of dwelling, taking advantage of superior strength, disregard of the respect due the
victim on account of his age, habitual intoxication and relationship attended the commission of the crime.

CONTRARY to Article 248 of the Revised Penal Code, in relation [to] Article 14, paragraph 3 and 15, and Article 15
of the Revised Penal Code.
Like in the previous two cases, this Court found the Information to have sufficiently alleged treachery as a qualifying
circumstance. Evidentiary facts need not be alleged in the information because these are matters of defense.
Informations need only state the ultimate facts; the reasons therefor could be proved during the trial.35

Whether the civil liabilities of the accused were correctly awarded by the lower courts

The trial court ordered the accused, Neil and Castor Batin, to pay the heirs of Eugenio Refugio in the following
amounts:

1) P50,000.00, as death indemnity;

2) P61,500.00, as actual damages;

3) P500,000.00, as moral damages;

4) P307,920.00, as indemnity for loss of earning capacity; and

5) the costs of suit.36

Jurisprudence pegs the death indemnity in the above amount (P50,000.00) pursuant to the current judicial policy on
the matter. No proof thereof is required. The P61,500.00 in actual damages consists of the expenses incurred by the
family of Eugenio Refugio, which Josephine Refugio testified to and was summarized in Exhibit H: 37 (1) P25,000.00
for medicines, surgery and other expenses for the hospitalization and emergency treatment;38 (2) P20,000.00 for
funeral expenses, inclusive of the costs of coffin, funeral services, and expenses during the wake;39 and (3) P6,500.00
as for burial expenses.

The Court of Appeals also modified the trial court’s computation of the indemnity for loss of earning capacity. The trial
court, finding the work of Eugenio Refugio to be hazardous, reduced his life expectancy to 20 years.

This modification is in accord with our ruling in Pleyto v. Lomboy.40 Pleyto offers the following computation for the
award for loss of earning capacity:

Net Earning = 2/3 x (80 – Age at x (Gross Annual

Capacity time of death) Income – Reasonable

& Necessary Living

Expenses)

Eugenio Refugio, who was 31 years old at the time of his death, had a daily income of P145.00. The Court of Appeals
multiplied this amount by 26 working days to get Eugenio Refugio’s monthly income of P3,770.00. The Court of
Appeals thus applied the Pleyto formula as follows:

Net Earning = 2/3 x (80 – 31) x [(P3770 x 12) – (P3770 x 12)]

Capacity

Net Earning = 2/3 x (49) x [(P45,240) – (P22,620)]

Capacity

Net Earning = 32 x [P22,620]

Capacity

Net Earning = P723,84041

Capacity

Lastly, the Court of Appeals found the award of P500,000.00 as moral damages to be excessive, and instead fixed
the amount at P100,000.00. In accord with prevailing jurisprudence, however, we further reduce this amount
to P50,000.00.42

WHEREFORE, the Decision of the Court of Appeals affirming with modification the conviction of accused-appellant
Castor Batin for murder is AFFIRMED with FURTHER MODIFICATION as to the amount of the moral damages, which
is hereby reduced to P50,000.00.

SO ORDERED.
G.R. Nos. 113511-12 July 11, 1997

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
DANILO SINOC y SUMAYLO, accused-appellant.

NARVASA, C.J.:

In a decision handed down on October 7, 1993 by Branch 30 of the Regional Trial Court of Surigao City, Danilo Sinoc
was found guilty beyond reasonable doubt in two cases jointly tried: 1 one, of the special complex crime of kidnapping
with murder (under Article 267 in relation to Articles 248 2 and
48 of the Revised Penal Code) — in Criminal Case No. 3564; and the other, of the complex crime of kidnapping with
3

frustrated murder (under Articles 267, 248, 6, 4 and 48 of the same Code) — in Criminal Case No. 3565. In each case, the
penalty of reclusion perpetua was imposed on him. 5

The amended informations under which Sinoc was tried and convicted, both dated January 23, 1992, included five
(5) other accused, namely: Vicente Salon @ "Dodong," Benjamin Espinosa @ "Benji," Jaime Jornales @ "James,"
Victorino Delegencia @ "Jun-Gren," and one Roger Doe @ "Ram" (at-large). 6 However, only Sinoc and Vicente Salon
were arraigned, on July 14, 1992, the other accused being then at large, as they still appear to be to this day. Assisted by
their respective counsel, both Sinoc and Salon entered pleas of not guilty and were thereafter jointly tried. The joint trial
resulted in Salon's acquittal in both cases. The Court agreed with him that "none of the witnesses presented by the
prosecution remotely implicate . . (him in) the crimes charged," and that "(i)ndeed, the only piece of evidence pointing to . .
(him [Salon]) as the mastermind is contained in the affidavit of confession of accused Danilo Sinoc;" hence, conspiracy not
having been proved, the case against Salon "has to be dismissed." Only Sinoc, therefore, is concerned in the appeal at bar.

Respecting the essential facts constituting the corpus delicti, there appears to be no serious dispute. It appears that
on September 20, 1991, at about 6 o'clock in the morning, Isidoro Viacrusis, manager of Taganito Mining Corporation,
was motoring from the company compound (at Taganito, Claver, Surigao del Norte) to Surigao City. He was riding on
a company vehicle, a Mitsubishi Pajero (with Plate No. DFX-397), driven by Tarcisio Guijapon. As Viacrusis and
Guijapon were approaching the public cemetery of Claver, they were stopped by several armed men. The latter,
identifying themselves as members of the New People's Army (NPA), boarded the Pajero and ordered Guijapon to
proceed. When they reached Barobo, Surigao del Norte, the armed men ordered Viacrusis and Guijapon to alight, led
them, their hands bound behind their back, to a coconut grove some six meters from the road, and after making them
lie face down on the ground, shot them several times. Viacrusis miraculously survived. The driver, Guijapon, was not
as lucky; he died on the spot.

These facts are set forth in, among others, a sworn statement given to the police by Sinoc, infra, and an affidavit
executed and sworn to by Viacrusis on October 17, 1991, about a month later. 7 In that affidavit, Viacrusis described the
armed men who had kidnapped and shot him and Guijapon. The only malefactor he was able to identify by name, however,
was Danilo Sinoc who, he said, had "curly hair, (was) known as 'Colot' (Danilo Sinoc), (and was known to) driver Tarcing .
. ."

Two prosecution witnesses gave germane testimony at the trial of the consolidated cases: Marlyn Legaspi, a resident
of San Vicente, Barobo, Surigao del Sur; and Barangay Captain Terencio Jamero, also of Barangay San Vicente.

Marlyn testified that she was startled by the sound of gunshots that morning of September 20, 1991. She ran towards
the direction of the gunfire and as she neared the place, heard the moaning of a man. She moved quickly to the
highway and saw a blue "Pajero" parked at the barangay road, its engine idling; and moments later, she saw the same
vehicle running fast towards San Francisco, Agusan del Sur. She lost no time in reporting the incident to Barangay
Councilor Terencio Jamero.

Jamero testified that on receiving Marlyn's report, he and another Councilor, Alberto Saliling, at once proceeded to
the place indicated. There they came upon the slain driver, and Isidoro Viacrusis, lying on the ground, sorely wounded,
crying out for help. With the assistance of policemen of Barobo, they brought Viacrusis to the Agusan del Sur Provincial
Hospital at Patin-ay. Timely medical attention enabled Viacrusis to recover from his grievous wounds.

The evidence of the prosecution further establishes that in the morning of the following day, September 21, 1991, at
about 7 o'clock, a secret informant (known as a "civilian asset") named Boyet reported to the Police Station at
Monkayo, Davao del Norte that the stolen ("carnapped") "Pajero" was parked behind the apartment of a certain
Paulino Overa at the Bliss Housing Project at Poblacion, Monkayo. On instructions of the Station Commander, a police
team 8 went to the place. They saw the "Pajero" and, their initial inquiries having yielded the information that the man who
had brought it there would return that morning, posted themselves in such a manner as to keep it in view. Some three hours
later, at about 10:30 o'clock, they saw a man approach the "Pajero" who, on seeing them, tried to run away. They stopped
him. They found out that the man, identified as Danilo Sinoc, of Surigao del Norte, 9 had the key of the "Pajero," and was
acting under instructions of certain companions who were waiting for him at the Star Lodge at Tagum, Davao del Norte.
Riding on the recovered "Pajero," the police officers brought Sinoc to the Star Lodge only to discover that his companions
were no longer there. They later turned over Sinoc to the 459(th) Mobile Force, together with the "Pajero."

Four months afterwards, in the afternoon of January 21, 1993, SPO1 Roger A. Basadre and two other officers (of the
CIS) brought Danilo Sinoc to the Public Attorneys' Office at Curato Street, Butuan City. They asked one of the
attorneys there, Atty. Alfredo Jalad, for permission to take Sinoc's statement in writing in his office. Sinoc asked Jalad
to assist him because he wished to make an "affidavit of confession."

Atty. Jalad told Sinoc that he had the right to choose his own counsel, and to remain silent. Sinoc said he wanted to
make the affidavit nonetheless, and be assisted by Jalad in doing so. The latter then had Sinoc narrate the occurrence
in question in "Cebuano/Visayan," a dialect with which Sinoc was familiar. That done, Jalad asked Sinoc if the CIS
had promised him anything for the affidavit he would execute. Sinoc said no. Only then did the CIS officers commence
to take Sinoc's statement, typing their questions and Sinoc's answers — as well as the initial apprisal of his
constitutional rights — on a typewriter in Atty. Jalad's office.

In his sworn statement, 10 Sinoc declared that he knew the victims, Isidoro Viacrusis and Tarcisio Guijapon because he
was "formerly working at Taganito Mining Company" (TAMICO); that in June, 1991, he learned that Benjamin Espinosa (@
Benji), Jaime Jornales (@ James), Victorino Delegencia (@ Jun-Gren), and a certain "Ram" had been monitoring the
activities of TAMICO Manager Viacrusis whom they planned to kidnap and rob of his "Pajero," and make it appear to be an
act of the NPA; that the criminal undertaking was planned by a certain Vicente Salon (@ Dodong), who made available the
needed funds and two (2) hand guns; that in September, 1991, at a meeting of the group at the boarding house of "Jun-
Gren" to which he (Sinoc) was invited. Sinoc was offered P20,000.00 to join in the "kidnapping and carnapping" operation;
that he agreed "because of poverty;" that in the morning of September 20, 1991, at about 6:30 o'clock, he, "Ram" and
Benjamin Espinosa stopped the "Pajero" driven by Tarcisio Guijapon in which Viacrusis was riding, brandishing two .38
caliber revolvers, and a piece of wood shaped like a rifle; that they boarded the vehicle, identifying themselves as NPA
(soldiers of the New People's Army) and had the driver proceed towards Surigao City; that at the bridge of Tres de Mayor,
they had the "Pajero" stop to pick up two other companions, "James" (Jaime Jornales) and "Jun-gren" (Victor Delegencia);
that "Ram" took over the wheel and drove towards Butuan City; that at San Vicente, Barobo "Ram" turned into a feeder road
and stopped about seven (7) meters from the highway; that there, Viacrusis and Guijapon, whose hands had been tied
behind their back, were made to get down; that "James" Jornales shot Viacrusis four times after which "Jun-gren"
Delegencia, Jr. fired at Guijapon four times, too; that when Sinoc remonstrated at the shootings, he was told it was on
Dodong Salon's orders; that the malefactors then proceeded to the "Bliss" Housing Project at Monkayo where they left the
"Pajero," this being the place where the mastermind, Vicente Salon, was supposed to get the vehicle and pay Sinoc the
promised sum of P20,000.00; that they then all went to Tagum; that on the following day, Sinoc was instructed by Jungren
and James to return to Monkayo with the key of the "Pajero" and deliver it to "Ram," and that when he arrived at the place
at about 9 o'clock in the morning, he was apprehended by soldiers and brought to the "459(th) PNP Mobile Company."
During the entire period of Sinoc's interrogation, which commenced at about 3:00 P.M., Atty. Jalad remained seated
beside him; and at its conclusion, Jalad read to Sinoc the contents of his statement from beginning to end. The
statement was thereafter signed by Sinoc and by Jalad, the latter being described as "witness to signature. " 11

Sinoc was next brought to the home of Butuan City Prosecutor Ernesto M. Brocoy so that he might take oath on his
statement. This was at about 7:00 P.M. After going over the statement, City Fiscal Brocoy told Sinoc that it was "very
damaging," briefly discussing the contents thereof in Cebuano. The latter stood by his answers, however, averring
that they had been voluntarily given. Evidently satisfied of the authenticity and voluntariness of the statement, Brocoy
administered the oath to Sinoc, and signed the certification typed at the left hand margin of page 4 thereof, reading:
"SUBSCRIBED AND SWORN to before me this 21st day of January 1992, at Butuan City, Philippines. I hereby certify
that I personally examined the herein affiant and that I am satisfied that he voluntarily executed and understood his
statement." He also initialed every page of the statement. 12

While under detention at the Provincial Jail, awaiting trial, Sinoc wrote two (2) letters to the Trial Judge dated June
and July, 1992, in both of which he asked that he be transferred to the City Jail because he had heard that Vicente
Salon, who had been arrested on the strength of his sworn statement, had made plans to kill him. He sent the Judge
a third letter — dated August 11, 1993, consisting of four (4) pages — which is described by His Honor as "substantially
a repetition of the contents of his affidavit of confession." All the letters were handwritten in block letters in the Cebuano
dialect. 13

Sinoc proffered the defense of alibi. His claim, as summarized by his counsel, was that "on September 19, 1991, he
was in Sibagat, Agusan del Sur together with his wife and prepared on that early morning to sell tableya (native
chocolate) in Tagum, Davao del Norte. On the same day they reached Tagum and they sold tableya and on the same
day there were not able to sell the tableya; on September 20, 1991 they were again selling tableya in Tagum, Davao
del Norte. It was while in Tagum that . . (they met) a certain Darves, they did not know exactly the name, he offered
to them the money to accompany the said driver of Darves who is name(d) Ram. He was offered . . money to
accompany this Ram in prior (sic) to allegedly get the Pajero vehicle from Moncayo together with Ram, and while in
Moncayo he was first apprehended by the police and detained at Moncayo, first . . (by) the 459 Mobile Force of . .
Moncayo and on January 14, 1992 to January 24, 1992 he was detained by the CIS authorities in Butuan City."

Elaborating, Sinoc testified that he saw Darves with three companions at "a certain restaurant in Tagum;" that Darves
introduced himself, and offered to give him P1,000.00) if he would accompany his driver to get a vehicle at Moncayo;
that he agreed, and at 6 o'clock in the morning of September 21, 1991 he went to the Star Lodge where Darves was
staying; that there, he was introduced to the latter's driver, Ram, given P1,000.00, and told to go with Ram; and that
he went out of the Star Lodge, gave his wife P800.00, and then went with Ram to Moncayo on board a bus.

In Moncayo, they went to where the Pajero was parked. Sinoc went towards the vehicle. Ram lagged behind, having
paused to buy some cigarettes. When Sinoc reached the Pajero, five persons suddenly pointed guns at him, searched
him, and found on him the key to the "Pajero" which Darves had given to him. The five persons, who were led by Sgt.
Michael Aringgo of the PNP, brought him to the Moncayo police station where they investigated him without informing
him of his constitutional rights.

In the afternoon of that day, September 21, 1991, he was surrendered to the 459th Mobile Force Company which
detained him until January 14, 1992. On this date he was taken by CIS personnel and brought to the CIS Compound
at Butuan City, at which place he was confined up to January 24, 1992, and subjected to interrogation without being
informed that he had a right to remain silent. He was told, however, that he had the right to counsel, but although he
told the investigators that his lawyer was Atty. Gavino Samontina, they never called the latter.

The investigators wished him to sign an affidavit. When he refused, they maltreated him by repeatedly submerging
his head in a toilet bowl full of excrement, as well as by tying him on a bed, raising the bed on one end so that his feet
were up and his head down, and keeping him in that position for hours.

On January 20, 1992, his wife and Efren Dak-ang came to see him at the CIS Compound. He talked to them and
revealed what was being done to him while under investigation.

On January 21, 1992, after having been interrogated the whole night, he finally agreed to sign the affidavit because
the CIS officers told him, "(W)e will kill you or salvage you." In fact, the night before, police officers had brought him
to an uninhabited place near the bridge and, with guns pointed at his head, commanded him to run. He refused, of
course. So, in the afternoon of that day, at around 4 o'clock, he was brought to the office of Public Attorney Jalad,
where the police investigators "hurriedly typed" his affidavit and made him sign it. He denied that Atty. Jalad informed
him of his constitutional rights. He asserted that when he told Jalad he had his own lawyer, Jalad merely remarked,
"Never mind, all attorneys are just the same as long as it is attorney." He was next brought to Fiscal Brocoy who,
without talking to him, "right away signed that document" (his confession).

Sinoc also explained how he had come to write the letter of August 11, 1992 to the Judge some seven months after
his confession. That letter — it will be recalled and as is evident from a comparison of both documents — was
described by the latter as "substantially a repetition of the contents of his affidavit of confession," supra. 14 He said:
"(T)here were persons who visited me while at the Provincial Jail and told me to accept the crime . . because if I will not
accept the crime my wife and children (and) my parents, they will liquidate all of them . . ."
Sinoc's wife, Jovita, testified for the defense, and sought to corroborate his testimony. She affirmed that she had seen
her husband at the CIS on September 20, 1992, at about 8:30 in the evening, and he had told her then to "keep . .
silent, not to tell anybody that he will be accompan(ied) by the CIS." Efren Dak-ang also gave corroborating testimony.

For some undisclosed reason, the surviving victim, Isidoro Viacrusis, did not testify; this, despite the fiscal's
assurances to the Trial Judge that he was "very interested" in giving evidence. Obviously because of Viacrusis' failure
to testify, his affidavit of October 17, 1991 was not formally offered, being obviously hearsay, although it is attached
to the record.

Be this as it may, the Trial Court was satisfied that the evidence actually presented by the Government sufficed to
establish Sinoc's guilt beyond reasonable doubt of the two felonies with which he stood charged.

Sinoc has taken an appeal to this Court and ascribes to the Trial Court the following errors: (1) convicting him of the
offenses charged although conspiracy had not been independently proven to exist among him and the other persons
named in the indictment: (2) not rejecting the evidence obtained after he had been "arrested without any warrant of
arrest," and (3) not rejecting his confession after he had been illegally arrested and had thereafter been "under
custodial investigation . . without a counsel of choice" from September 21, 1991 to January 20, 1992, first by the
Monkayo 459th Mobile Force, and later by the C.I.S., Butuan City.

As regards Sinoc's claim of illegal arrest, the law provides that an arrest without warrant may be licitly effected by a
peace officer, inter alia, "When an offense has in fact just been committed, and he has personal knowledge of facts
indicating that the person to be arrested has committed it." 15

There is no question that the police officers in this case were aware that an offense had just been committed: i.e., that
some twelve hours earlier, a "Pajero" belonging to a private company had been stolen ("carnapped") and its driver
and passenger shot, the former having died and the latter being on the verge of death. Nor is there any doubt that an
informer ("asset") had reported that the stolen "Pajero" was at the Bliss Housing Project at Moncayo. It was precisely
to recover the "Pajero" that a team composed of SPO1 Michael Aringo and "joint elements of 459 PNP MFC and
Monkayo Police Stn led by Insptr Eden T. Ugale," went to that place and, on taking custody of the "Pajero," forthwith
dispatched a radio message to "Higher Headquarters" advising of that fact. 16

There is no question either that when SPO1 Aringo and his companions reached the place where the "Pajero" was
parked, they were told by Paulino Overa, owner of the apartment behind which the vehicle was parked, that the man
who had brought the "Pajero" would be back by 12:00 noon; that the person thus described did in fact show up at
about 10:00 A.M., and was immediately identified by Overa as "the one who rode on that car 'pajero;'" 17 just as there
is no question that when the police officers accosted him, Sinoc had the key to the stolen "Pajero" and was in the act of
moving toward it admittedly to take possession of it (after having arrived by bus from Tagum together with another suspect,
"Ram"). Sinoc's link to the stolen vehicle (and hence to the kidnapping and killing accompanying its asportation) was thus
palpable.

The foregoing circumstances left the police officers no alternative save to arrest Sinoc and take possession of the
"Pajero." His arrest without warrant was justified; indeed, it was in the premises the officers' clear duty to apprehend
him; their omission to do so would have been inexcusable.

Sinoc's assault against the propriety of his interrogation after his warrantless arrest, because conducted without advice
to him of his constitutional rights, is pointless. It is true that, as candidly admitted by the arresting officers, their initial
interrogation of Sinoc was made without his first being told of his corresponding rights. This is inconsequential, for the
prosecution never attempted to prove what he might have said on that occasion.

The confession made by him some time afterwards at the Public Attorneys' Office at Butuan City is altogether a
different matter, however. The record adequately shows it to have been executed voluntarily and under applicable
safeguards, apart from being confirmed by, or consistent with, other evidence.

Sinoc does not dispute that he was taken to the Public Attorney's Office; that he spoke to Atty. Alfredo Jalad and it
was in the latter's office that his confession was prepared by the CIS investigator. Nor does he deny that he was then
brought to the home of City Prosecutor Ernesto M. Brocoy who certified that the confession had been subscribed and
sworn to before him and that he was satisfied that Sinoc had voluntarily executed and understood his statement. Sinoc
nonetheless claims that he was under intimidation at that time and never advised of his constitutional rights.

After carefully considering the evidence, this Court is convinced that the Trial Judge was correct in accepting the
account of the execution of Sinoc's confession (Exhs. K, K-1 to K-5) narrated by Public Atty. Alfredo Jalad and City
Prosecutor Ernesto Brocoy, to the effect that the confession was voluntarily given after he had been duly informed of
his constitutional rights. No reason whatever is discernible in the record for these Government officials to give false
evidence against Sinoc, or testify otherwise than to the truth.

Sinoc's confession of January 21, 1992 is confirmed by the letter

he admittedly wrote to the Trial Judge more than a year later, on August 11, 1993, 18 the contents of which are, as
observed by the Trial Judge, substantially identical with those of the confession. In said letter, in which he narrates in no
little detail the same story contained in his confession, he apologizes for "bothering you again at this time" (obviously
referring to his prior letters to the Judge of June and July 1992), and gives his reasons for writing the latest letter: to ask for
the Judge's assistance and take account of his allegation that his agreement with his co-accused was only to stop the
"Pajero," that it was poverty that impelled him to join the plotters (Vicente Salon, et al.); to see that Tarcisio Guijapon and
Viacrucis be given justice; and to plead that the Judge take pity on him, and not give him too heavy a penalty.

The confession is also consistent with Sinoc's testimony at his trial in which he admitted that he had indeed traveled
from Tagum to Moncayo where he was arrested; and that he had made the trip, together with his co-accused, "Ram,"
precisely to get the stolen "Pajero" the key of which he had on his person at the time. It contains details (e.g., the use
of two (2) hand guns and a wooden rifle, the bringing of the Pajero from the scene of the killing to Moncayo, the
identities of the individual malefactors who shot the victims) which it is improbable to think were conjured out of thin
air by the police investigators or deduced from other evidence. The confession is consistent, too, with the other proofs,
particularly the testimony of Marlyn Legaspi and Barangay Councilor Jamero as regards the time and place of the
shooting of the hapless victims.

In any event, the Trial Judge appears to have carefully assessed the demeanor of the witnesses for the prosecution
and those for the defense, in relation to the documents on record, and on this basis and from his vantage point, found
that the prosecution's proofs were more credible than the defense, and that their combined weight established beyond
reasonable doubt the appellant's culpable participation in the crimes charged.

It must additionally be pointed out that apart from Sinoc's protestations that his extrajudicial confession was the result
of torture and threats, no competent evidence exists on record to substantiate that claim. He made no such claim to
either Public Attorney Alfredo Jalad or City Prosecutor Ernesto Brocoy although there is absolutely nothing in the
record to indicate any cause for him to distrust either government officer, much less believe they were in conspiracy
with the police officers to concoct a case against him. In fact, although he professes to have disclosed his supposed
maltreatment to his wife when she visited him at the place of his detention, the latter made no mention of it in her
testimony, nor did she ever attempt to have him medically examined to confirm such a revelation, if it had been made.
Moreover, the counsel he said he wanted to represent him during his interrogation at Public Attorney Jalad's office,
Atty. Gavino Samontina, was never presented to confirm his statement.

While the evidence does show that Sinoc became embroiled in a criminal conspiracy 19 — he agreed (out of poverty,
he says) to join in a crime being planned by certain men named by him and decided to commit it with them — the agreement,
as far as he was concerned, was to waylay Viacrusis, the Manager of the Tagum Mining Company, and rob him of his
"Pajero," for which his share would be P20,000.00; but it did not include the shooting of Viacrusis or any one else. In fact,
he raised a protest when Viacrusis and Guijapon were shot. In other words, as far as Sinoc understood it, and as far as
may in fact be deduced from the evidence, the plan was not so much to capture Viacrusis and deprive him of liberty, even
less to assassinate him, but to steal his "Pajero" by violent means. The "kidnapping" was not the principal objective; it was
merely incidental to the forcible taking of the vehicle. Unfortunately, by reason or on the occasion of the seizure of the
"Pajero" — and (as far as the proofs demonstrate) without fore-knowledge on Sinoc's part — its driver was killed, and the
lone passenger seriously injured.

There was thus no kidnapping as the term is understood in Article 267 of the Revised Penal Code — the essential
object of which is to "kidnap or detain another, or in any other manner deprive him of his liberty." The idea of
"kidnapping" in this case appears to have been the result of the continuous but uninformed use of that term by the
peace officers involved in the investigation, carelessly carried over into the indictments and the record of the trial, and
even accepted by His Honor. 20

The offense actually committed in Criminal Case No. 3564 —where the killing of Tarcesio Guijapon accompanied the
taking of the "Pajero" — is that defined and penalized by Article 294 of the Criminal Code, 21 viz.:

Art. 294. Robbery with violence against or intimidation of persons-Penalties. — Any person guilty of
robbery with the use of violence against any person shall suffer:

1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime
of homicide shall have been committed, or when the robbery shall have been accompanied by rape
or intentional mutilation or arson.

xxx xxx xxx

It is germane to observe that even if the intent to deprive of liberty were as important or primordial an objective as the
asportation of the "Pajero," the kidnapping would be absorbed in the robbery with homicide; 22 and that the term,
"homicide," is used in the quoted article in the generic sense — i.e., as also including murder, the nature of the offense not
being altered by the treacherous character, or the number, of the killings in connection with the robbery. 23

On the other hand, the wrongful acts actually proven to have been committed by the defendants in Criminal Case
No. 3565 are: (1) robbery, of course, as above described, and (2) frustrated murder on the occasion thereof — gunshot
wounds having been inflicted on Isidoro Viacrusis, while bound and prostrate on the ground, utterly unable to put up
any defense, the wounds being of such a nature as would have resulted in his death were it not for timely medical
intervention. Obviously, these acts do not fall within the ambit of Article 294, which treats of the special complex crime
of robbery with violence against or intimidation of persons, but NOT robbery with attempted or frustrated homicide (or
murder), although the law does punish the crime of attempted and frustrated robbery with homicide. 24
Neither do the crimes come within the operation of Article 48 of the Criminal Code which, speaking of complex crimes,
provides that when "a single act constitutes two or more grave or less grave felonies, or when an offense is a
necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be
applied in its maximum period." In this case, the two crimes of "carnapping" and frustrated murder did not result from
"a single act." Nor was either offense a "necessary means for committing the other." The shooting of the victim was
not necessary to commit the "carnapping;" indeed at the time the victim was shot, the "carnapping" had already been
consummated. And, of course, the "carnapping" which, according to the evidence, was the conspirators' principal
objective, was not necessary to perpetrate the shooting.

It follows then that the malefactors' felonious acts in Criminal Case No. 3565 cannot be regarded as juridically fused
into a "complex crime" under Article 48. They should be considered separate offenses, separately punishable.

Now, Sinoc admittedly entered into a conspiracy with his co-accused; but he insists that as far as he was concerned,
the conspiracy was to "carnap" the "Pajero," and did not include any killing or assault against persons. His theory is
that the slaying of the driver and passenger might conceivably have been contemplated from the outset by one or
some or all his co-conspirators; but Sinoc himself never had that intention. Indeed, he says he had no inkling that the
shooting would take place; had no opportunity to prevent it, and could only remonstrate about it after it was done; and
he invokes the doctrine that conspirators may only be held accountable for the acts embraced in the criminal
agreement; and as regards felonious acts not included, only the author thereof would be liable. 25

Sinoc's disclaimers notwithstanding, it is this Court's view that the crime that may properly be ascribed to him in Case
No. 3564 is robbery with homicide under Article 294 of the Revised Penal Code. For unfortunately for him, there is no
avoiding the fact that a homicide — although not agreed to or expected by him — was committed on the occasion of
the robbery of the "Pajero;" and he could not but have realized or anticipated the possibility of serious harm, even
death, being inflicted on the person or persons in the "Pajero" targeted for robbery, since two of his companions were
armed with guns, even if in his mind, to repeat, his agreement with them did not include killing. 26 The most that can be
conceded is to credit him with the mitigating circumstance of having "no intention to commit so grave a wrong as that
committed." 27

Sinoc may not be held liable in Case No. 3565 for the separate offense of frustrated murder as regards Viacrusis, for
the reasons already mentioned; in this particular case, the evidence shows that he agreed only to the plan to "carnap"
the "Pajero," but not to any assault or killing. 28 Nor is it logical to convict him twice of robbery of the same property under
the same circumstances. Hence, he may not be pronounced responsible for the separate offense of robbery of the same
"Pajero," in addition to being declared guilty of robbery (of that same "Pajero") with homicide under Article 294.

The penalty imposable on Sinoc is that provided in Article 294 of the Penal Code, which is reclusion perpetua to death.
Appreciating in his favor the mitigating circumstance of lack of intention to commit so grave a wrong as that done, the
penalty that should be applied to him is reclusion perpetua.

WHEREFORE, in Criminal Case No. 3564, appellant Danilo Sinoc, being guilty beyond reasonable doubt of the
offense of robbery with homicide defined and punished by Article 294 of the Revised Penal Code, is sentenced
to reclusion perpetua. Criminal Case No. 3565 is DISMISSED as to him.

SO ORDERED.
G.R. No. 112990 May 28, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LEMUEL COMPO @ DODONG and MAURICIO GONZAGA @ LONGLONG, accused.

LEMUEL COMPO @ DODONG, accused-appellant.

PARDO, J.:

Accused Lemuel Compo appeals from the decision of the Regional Trial Court, Bohol, Branch 1, Tagbilaran City,
finding him guilty beyond reasonable doubt of murder and sentencing him to reclusion perpetua and to indemnify the
heirs of Procopio Dales in the amount of fifty thousand pesos (P50,00.00) and twenty thousand pesos (P20,000.00)
as moral and exemplary damages.1

On March 17, 1992, Second Assistant Provincial Prosecutor of Bohol Rodolfo R. Ligason filed with the Regional Trial
Court, an information charging Mauricio Gonzaga and Lemuel Compo with murder, committed as follows:

"That on or about the 1st day of March, 1992, in the municipality of Loboc, province of Bohol, Philippines and
within the jurisdiction of this Honorable Court, the above named accused, conspiring, confederating and
mutually helping with one another, with intent to kill and without justifiable cause, with evident premeditation,
treachery and abuse of superior strength, did then and there willfully, unlawfully and feloniously attack, assault
and shoot with the use of a small arrow locally known as "Indian Pana" and stab with the use of a small sharp-
pointed bolo one Procopio Dales who was unarmed and unaware of the attack, thereby inflicting mortal injuries
on the victim's body which resulted in the death of the said Procopio Dales; to the damage and prejudice of
the heirs of the deceased in the amount to be proved during the trial. 1âwphi 1.nêt

"Acts committed contrary to the provisions of Article 248 of the Revised Penal Code, as amended."2

Upon arraignment on July 9, 1992, the two accused pleaded not guilty.3 Trial on the merits ensued.

In the evening of February 29, 1992, Gilberto Libardo4, a conductor of a passenger bus, went to a disco place located
at sitio Tambis, barangay Oy, Loboc, Bohol. On March 1, 1992, around 1:00 in the morning, Libardo with three
companions left the disco house and while they were walking toward his house, Mauricio Gonzaga alias "Lolong" and
Lemuel Compo alias "Dodong" suddenly accosted him and asked whether he had seen Procopio
Dales alias "Opiong". He answered that Opiong was still in the disco house. Mauricio was carrying a small bolo in his
right hand and a scabbard in his left hand. Accused Compo was holding an "Indian Pana" and a flashlight. On their
way home to Calunasan, Norte, Loboc, Bohol, they saw Procopio Dales standing in the middle of the road holding a
piece of wood. Lemuel lighted his flashlight toward the direction where Procopio was standing. When Procopio Dales
tried to attack Mauricio with a piece of wood, he picked up a piece of stone and hit Dales in the right shoulder causing
the latter to stagger and rush toward him with small bolo in his hand. He took another piece of stone and hit Dales
again causing the small bolo to drop to the ground. Mauricio picked up the small bolo and stabbed Procopio Dales
several times until he fell to the ground. Finding several "Indian Pana" in the possession of Procopio Dales, he took
one of them and hit Dales with the "Indian Pana," which imbedded in his neck. At the time of the stabbing incident,
Lemuel Compo was not lighting his flashlight toward the body of Procopio Dales. Lemuel Compo only used the
flashlight when Mauricio Gonzaga threw a stone at Procopio Dales.5

PO3 Pedro Wate of Lila Police Station testified that at around 2:30 in the morning of March 1, 1992, Antonina Gonzaga,
the mother of Mauricio Gonzaga, went to the house of PO3 Wate at Barangay Calunasan, Loboc, Bohol, asking his
help in surrendering her son who had stabbed someone. While on their way to the Gonzaga's residence, they met
Mauricio and Lemuel. Mauricio immediately confessed that he killed Procopio Dales. After Mauricio handed the bolo
to PO3 Wate, the latter brought Mauricio and Lemuel to Loboc Police Station and turned them over to station guard
PO3 Aliceto Torreon.6

Dr. Evangeline B. Delfin who examined the victim testified that he sustained 13 wounds five (5) were classified as
fatal wounds while seven (7) were non-fatal wounds.7 The autopsy report8 states:

"xxx xxx xxx

"II. Post-Mortem Findings:

"A male, fairly nourished, fairly developed, about 5 ft. or less in height, lying in supine position with
multiple stab wounds on his face, neck, chest, abdomen and back.

"III. Regional Findings:

"Face: a) At the left side a stab wound, entrance 1.5 cm. in dia. at mandibular area.

"b) Stab wound 2.5 cm. in dia. at the left side of the face near auricle.

"Neck: a) Stab wound 2 cm. in dia. at anterior triangle of the neck left side hitting the common caroted artery,
jugular vein, vagus nerve.

"b) Punctured wound .5 cm. in dia. at left supraclavicular fossa hitting the left subclavian artery,
common caroted artery.

"Chest: a) Stab wound 2.5 cm. in dia. left, chest, anterior axillary hitting the lateral side of the heart.

"Abdomen: a) Stab wound 2.5 cm. in dia. Left hypochondrium.

"b) Stab wound 2 cm. in dia. at left lumbar hitting the descending colon.

"c) Stab wound 1 cm. in dia. at right subcostal area through and through to the back, exit, hitting the
transverse colon, partly the right, lobe of the liver.

"Back: a) Stab wound 1 cm. in diameter at posterior axillary area.

b) Left Scapular Area

a) 2cm. in dia. – superior angle

b) 3cm. in dia. – body of the scapula

c) 2.5 cm. in dia. – inferior angle

"Conclusion:

Cause of death: Hypovolemic shock secondary to severe hemorrhage due to laceration of the blood
vessels that supply the brain, heart, & destruction of the liver (partly), transverse colon, Descending
colon."

Accused Lemuel Compo interposed the defense of alibi and denial. He claimed that on March 1, 1992, at around 7:00
p. m., he was in the store of Pedro Wate to watch a betamax show. Mauricio Gonzaga invited him to go to the disco
house. They arrived at the disco house at around 12:00 midnight, shortly afterwhich, they decided to go home. On
their way home, they saw a person standing in the middle of the road whom Mauricio identified as Opiong. Lemuel
focused his flashlight on the person and he recognized Procopio Dales before the latter got lost on the road. When
they reached the corner of the road, they met Gilberto Libardo together with three companions. Mauricio asked Libardo
whether he saw Procopio Dales and the former answered no. Lemuel and Mauricio walked toward a lower portion of
the road where Lemuel focussed his flashlight and they saw Procopio Dales carrying a piece of wood. They moved
backward while Lemuel focused his flashlight toward Procopio Dales whom he saw. Suddenly Lemuel stumbled. He
ran away and went home. He took his supper and went to sleep. In the meantime, Mauricio Gonzaga arrived at his
house and woke him up telling him that he stabbed to death Procopio Dales. Mauricio Gonzaga asked him to
accompany him to surrender to the authorities when Pedro Wate and Mauricio's mother arrived.9

On May 11, 1993, the trial court rendered a decision, the dispositive portion of which reads as follows:

"PREMISES CONSIDERED, the Court finds the accused Mauricio Gonzaga and Lemuel Compo guilty of the
crime of murder punished under Article 248 of the Revised Penal Code and hereby sentences each one of
them to suffer an imprisonment of Reclusion Perpetua, with the accessories of the law and to pay the cost.

"The accused Mauricio Gonzaga and Lemuel Compo are further ordered each to indemnify the heirs of the
late Procopio Dales in the amount of Fifty Thousand Pesos (P50,000.00) each, and Twenty Thousand Pesos
(P20,000.00) each representing moral and exemplary damages and in both instance without subsidiary
imprisonment in case of insolvency, with the accessories of the law and to pay cost.

"The bolo used in the commission of the crime is hereby ordered forfeited in favor of the government.

"SO ORDERED.

"(Sgd.)

"Antonio H. Bautista
"Judge."10

On May 26, 1993, accused Lemuel Compo filed with the trial court a notice of appeal.11

In this appeal, accused-appellant imputes a single assignment of error to the trial court,12thus: "The trial court erred in
finding the accused-appellant guilty beyond reasonable doubt of the crime of murder."13

Lemuel, as related by witness Mauricio Gonzaga, was merely present before the stabbing incident, holding a flashlight.
No other overt act was established to prove that Lemuel shared and concurred with the criminal design of Mauricio.
The mere presence of Lemuel, who was not shown to be armed, at the scene of the crime does not connote
conspiracy. Singularity of purpose and unity in the execution of the unlawful objective are essential to establish
conspiracy.14

Mere knowledge, acquiescence, or agreement to cooperate, is not enough to constitute one as a party to a conspiracy,
absent any active participation in the commission of the crime, with a view to the furtherance of the common design
and purpose.15 Conspiracy transcends companionship.16 The presence and company of Lemuel were not necessary
or essential to the perpetration of the murder.

Neither can Lemuel be considered an accomplice. Article 18 of the Revised Penal Code provides that an accomplice
is one who, not being a principal, cooperates in the execution of the offense by previous or simultaneous acts. To be
convicted as such, it is necessary that he be aware of the criminal intent of the principal and then cooperate knowingly
or intentionally by supplying material or moral aid for the efficacious execution of the crime. 17 The prosecution,
however, failed to present convincing evidence establishing that accused-appellant Lemuel knew of the other
accused's intent to kill Dales. Again, his mere presence at the scene of the crime and his flight therefrom with the
other accused are not proof of his participation in the crime. The quantum of proof required in criminal prosecution to
support a conviction has not been reached with regard to accused-appellant Lemuel. The oft-repeated truism that the
conviction of an accused must rest not on the weakness of the defense but on the strength of the prosecution's
evidence applies.18 He must, therefore, be acquitted on reasonable doubt.

We are convinced that the prosecution failed to overcome the constitutional presumption of innocence. Basically,
accused-appellant Lemuel was convicted based on the testimony of the conductor of passenger bus Gilberto Libardo
who saw Lemuel carrying an "Indian Pana" and a flashlight. Without any testimony positively identifying accused-
appellant as the assailant nor any evidence directly linking him as the author of the crime, Lemuel Compo can not be
convicted of the murder of Dales. The accused-appellant deserves an acquittal and must forthwith be given back his
liberty.
1âw phi 1.nêt

WHEREFORE, on reasonable doubt, the appealed decision is REVERSED and accused-appellant Lemuel Compo
@ Dodong is hereby ACQUITTED and ordered RELEASED immediately, unless he is detained for some other legal
cause. 1âwphi1.nêt

The Director, Bureau of Corrections is ordered to show to this Court proof of compliance herewith within ten (10) days.

Costs de oficio.
SO ORDERED.

G.R. No. 88301 October 28, 1991

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BENJAMIN RAMOS, JR. y YABUT, accused-appellant.

The Solicitor General for plaintiff-appellee.

Ricardo A. Mamaclay for accused-appellant.

MEDIALDEA, J.:p

On the basis of a "buy-bust" operation, led by Cabanatuan City, NARCOM District Commander, Capt. Maximo Dilla,
appellant Benjamin Ramos, Jr. was arrested and charged with violation of the Dangerous Drugs Act (RA 6245, Art. II,
Sec. 4) in Criminal Case No. 5128, before the Regional Trial Court, 1 Third Judicial Region, Branch 29, Cabanatuan City, in an information
filed by the City Fiscal, as follows:

that on or about the 17th day of May, 1986, in the City of Cabanatuan, Republic of the Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law,
did then and there willfully, unlawfully and feloniously deliver and sell to another 2.5 grams of dried
marijuana leaves or Indian hemp. (p. 16, Rollo)

Upon arraignment, appellant Ramos pleaded "not guilty." After trial, the court rendered its decision on March 3, 1989,
the dispositive portion of which reads as follows:

IN VIEW OF ALL the foregoing, judgment is hereby rendered finding the accused, BENJAMIN
RAMOS, JR. y. YABUT, guilty beyond reasonable doubt (sic) of the crime of violation of Section 4, of
Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, to suffer
imprisonment of reclusion perpetua or life imprisonment, and to pay a fine of TWENTY THOUSAND
(P20,000.00) PESOS, together with the costs of these proceedings, without subsidiary imprisonment
in case of insolvency.

Let this be a stern warning and serve as a deterrent to others who, in the future, may trifle with our
dangerous drug law.

SO ORDERED. (p. 20, Rollo)

From the judgment of conviction, Ramos appealed, assigning a single error:

 THE COURT ERRED IN RULING THAT THE ACCUSED IS GUILTY OF VIOLATION OF SEC. 4 OF
R.A. 6425 AS AMENDED, OTHERWISE, KNOWN AS THE DANGEROUS (DRUGS) ACT OF 1972.
(p. 1, Appellant's Brief, p. 26, Rollo)

The Solicitor General summarized the People's version thus:

On May 17, 1986 at about 9:00 o'clock in the evening, a civilian informant (whose identity was not
divulged for tactical and security reasons) went to the NARCOM Office in Bitas, Cabanatuan City,
Nueva Ecija, with the information that there was a person selling marijuana leaves or Indian Hemp at
the "Hang Out" restaurant located at the diversion road in Cabanatuan City. Upon hearing such
information, Capt. Maximo Dilla, the NARCOM District Commander, organized a team of operation
consisting of himself, Sgt. Danilo Maulon, AIC Francisco Cabiao and the said informant. (TSN, p. 4,
Dec. 9, 1986; p. 4, Dec. 3, 1986)

The team, as planned, would proceed to the place indicated by the informant for surveillance. Sgt.
Maulon was designated by Capt. Dilla to pose as a buyer and was accordingly given a marked P10.00
bill. Sgt. Maulon was directed to light a cigarette once a purchase was made.

The group proceeded to the "Hang Out" restaurant. Sgt. Maulon, together with the informant, went
inside, while Capt. Dilla and AIC Cabiao positioned themselves in a strategic place where they could
not be seen. While inside the restaurant, the informant approached appellant, whispering to the latter
that he had with him a man who wanted to buy marijuana leaves, indicating Sgt. Maulon to be the
buyer. After a brief conversation, appellant left for a while and thereafter returned with a plastic teabag
containing marijuana which he gave to Sgt. Maulon. Sgt. Maulon, after ascertaining that what was
given him was indeed marijuana leaves, gave the marked 10-peso bill to the appellant. Sgt. Maulon
then lighted a cigarette to alert his teammates. Thereupon, Capt. Dilla and AIC Cabiao rushed toward
the appellant, arrested him and brought him to the NARCOM District Office for booking and
investigation. (TSN, pp. 4-7, Dec. 9, 1986; pp. 5-7, Dec. 3, 1986)

The plastic teabag containing the marijuana leaves purchased by Sgt. Maulon was marked and sent
to the Phil. Constabulary Crime Laboratory at Camp. Olivas, San Fernando, Pampanga for analysis.
A chemical analysis of the specimen conducted by Forensic Analyst Captain Marlene Salangad
showed that the specimen (Exhibit 'C' contents of the plastic teabag) was positive for marijuana. (TSN,
pp. 2-4, July 28, 1987). (pp. 49-51, Rollo)

Before Us, Ramos denies any "buy-bust" operation, claiming that the marijuana leaves were planted evidence, that
he was arrested because of a heated argument with the restaurant owner, Dr. Melvin Garcia, over an alleged P30.00-
unpaid account.

We find the prosecution's version more credible. The prosecution was able to establish the "buy-bust" operation
through the testimonies of the arresting officers, Sgt. Danilo Maulon and Airman First Class Francisco Cabiao, then
members of the Narcotics Command stationed at Cabanatuan City, who, as rightly pointed out by the Solicitor General,
are entitled to full faith and credence as they are presumed to have acted in the regular performance of official duty
(People v. Policarpio, G.R. No. 69844, February 23, 1988, 158 SCRA 85; People v. Andiza, G.R. Nos. 71986-87,
August 19, 1988, 164 SCRA 642).

Thus, Sgt. Maulon testified that he acted as the poseur-buyer to whom Ramos sold marijuana leaves, which were
placed in a plastic teabag, after which he handed over to the latter a marked P10.00 bill (Exh. 'A') which he
subsequently identified, with serial number TX824409 (Exh. 'A-1') and the signature thereon of Capt. M. Dilla (Exh.
'A-2') (TSN, pp. 5-6, Dec. 3, 1986).

AFC Cabiao testified that he witnessed the delivery by Ramos to Sgt. Maulon of the plastic teabag containing the
marijuana leaves after which the latter handed the P10.00-marked bill to Ramos. (TSN, pp. 6-7, December 9, 1986).

Capt. Marlene Salangad, a forensic chemist at the PC Crime Laboratory at Camp Olivas, San Fernando, Pampanga,
testified that the contents of the plastic teabag were positively found to be "marijuana, a prohibited drug," identifying
in the course of her testimony the request for Laboratory Examination (Exh. "D"), signed by Capt. Dilla, and the
Technical Report HB-167-8 (not Exh. "C," Initial Laboratory Examination Report, as erroneously stated in the RTC
decision) (TSN, pp. 2-3, July 28, 1987).

The defense did not present Dr. Melvin Garcia, the restaurant owner, or Boyet Corpuz (TSN, p. 5, November 12,
1987) (not Boy Sanchez, as stated in the RTC decision), the alleged companion of Ramos at the restaurant/beerhouse
to corroborate Ramos' contention that he was arrested because of a heated argument he had with Dr. Garcia. Neither
did he present Danilo Martin whom Ramos had stated on cross-examination, to be the owner of the mini-component
allegedly confiscated by the arresting officers (TSN, p. 3, December 9, 1987). Instead, the defense presented Samuel
Ancheta, Danilo Martin's brother-in-law, who had testified as the "owner" of the mini-component, and who claimed to
have redeemed the same from Sgt. Maulon, upon payment of P1,000.00 (TSN, p. 5, April 27, 1988).
The absence of these corroborative witnesses leads Us to conclude that the defense version was simply a concoction
devoid of any credibility. Thus, We note the trial court's observation of "the direct and straight forward testimonies of
the prosecution witnesses" (People v. Aset, G.R. No. L-35781, January 28, 1980, 95 SCRA 553) as against the mere
denials by the accused" (People v. Alharico, et al., G.R. Nos. L-38339, L-38340, L-38341, October 10, 1980, 100
SCRA 280) (RTC decision, p. 9, Rollo).

The case of the prosecution is clear and positive. Ramos was caught in flagranti selling marijuana. As correctly
pointed out by the trial court, the "buy-bust operation" or entrapment, resorted to by the Narcotics agents has long
been recognized as an effective means of apprehending drug peddlers. It is a procedure or operation sanctioned by
the Revised Penal Code, (People v. Valmores, et al., G.R. No. 58635, June 28, 1983, 122 SCRA 922.) In the case
of People v. Y. Gatong-o, et al., G.R. No. 78698, December 29, 1988, 168 SCRA 716, We defined entrapment as the
"employment of such ways and means for the purpose of trapping or capturing a lawbreaker" (also People v.
Valmores, et al.).

"In entrapment, the idea to commit the crime originates from the accused. Nobody induces or prods him into
committing the offense. This act is distinguished from inducement or instigation wherein the criminal intent originates
in the mind of the instigator and the accused is lured into the commission of the offense charged in order to prosecute
him. The instigator practically induces the would-be accused into the commission of the offense and himself becomes
a co-principal." (Ibid)

The fact that government witnesses made the purchase of marijuana do not make them accomplices, for their only
purpose is to secure evidence to convict the violator. Their testimonies stand on the same footing as that of any other
witnesses in the case (U.S. v. Chiong-Chuico, et al., 11 Phil. 106).

Moreover, the Solicitor General has pointed out that the arresting officers were not shown to have had any ulterior
motive to falsely accuse Ramos with a serious offense, but that they were simply bent on apprehending violators of
the law. The presumption has always been that NARCOM agents are performing their functions when they conduct
buy-bust operations and entrap and arrest violators (People v. E. Ansing, G.R. No. 86641, April 26, 1991). The
conviction of accused Ramos is therefore in order.

The defense attacks the prosecution's failure to present as witness, Capt. Maximo Dilla. Suffice it to say that it is up
to the prosecution to determine who should be presented as witnesses on the basis of its own assessment of its
necessity (People v. M. Ruedas, G.R. No. 83372, February 27, 1991; Tugbang v. CA, et al., G.R. No. 56679, June
29, 1989, 174 SCRA 424; People v. Somera, G.R. No. 65589, May 31, 1989, 173 SCRA 684; People v. Orita, G.R.
No. 88724, April 3, 1990, 184 SCRA 105).

The defense has also claimed that Ramos was maltreated by Sgt. Maulon. This issue, as well as the alleged
confiscation of a mini-component/stereo cassette by Sgt. Maulon are irrelevant to the offense of which Ramos was
convicted.

Likewise, the defense claims that Tirso Y. Reyes did not hear the case, but Judge Nathanael Gorospe (now Associate
Justice of Sandiganbayan), and therefore did not see the demeanor of the witnesses. We have ruled that "the fact
that the judge who heard the evidence is not the one who rendered the judgment and that for that reason the latter
did not have the opportunity to observe the demeanor of witnesses during the trial, but merely relied on the records
of the case does not render the judgment erroneous (Co Tan v. CA, et al., 101 Phil. 188).

One last observation, the penalty of "reclusion perpetua or life imprisonment." among others. imposed by the trial
court (p. 20, Rollo) is improper as it is not the penalty provided by law for the offense. Under Section 4 of R.A. 6425,
as amended by PD 1675, which become effective on February 17, 1980, the penalty for the sale, delivery or giving
away to another of a prohibited drug is life imprisonment to death, and a fine ranging from P20,000.00 to
P30,000.00. The penalty of reclusion perpetua, a penalty provided in the Revised Penal Code which carries accessory
penalties is completely different from life imprisonment (People v, Ruedas, supra; People v. Valmores, et
al., supra; People v. Nillos, G.R. No. 66161, January 30, 1984, 127 SCRA 207).

ACCORDINGLY, the appealed decision of the Regional Trial Court of Cabanatuan City is AFFIRMED insofar as it
imposed "a fine of P20,000.00 together with the costs of these proceedings, without subsidiary imprisonment in case
of insolvency," but MODIFIED with respect to the main penalty of "reclusion perpetua or life imprisonment," which is
changed to life imprisonment solely.

SO ORDERED.
G.R. No. 99258 September 13, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FRANCISCO ARROYO and RITO MINA, accused-appellants.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellants.

REGALADO, J.:p

With the imposition of the penalty of reclusion perpetua by the Court of Appeals on one of the herein accused-
appellants in their appeal thereto, this case has been certified and the entire record thereof elevated to us in
accordance with Section 13, Rule 124 of the 1985 Rules on Criminal Procedure.

Accused-appellants Francisco Arroyo, alias 'Diotay,' and Rito Mina, alias "Tano," were indicted for murder in an
information 1 filed on August 30,1988 alleging:

That on or about July 10, 1988 in the morning thereof, at Tumalonton, Barangay Guinbanwahan,
Municipality of Balud, Province of Masbate, Philippines, and within the jurisdiction of this Court, the
said accused, with intent to kill, evident premeditation, treachery, conspiring together and helping one
another, did then and there wilfully, unlawfully and feloniously attack, assault and stab with a deadly
weapon one Nonito Villarosa, hitting the latter on the different parts of the body, thereby inflicting
wounds which directly caused instantaneous death. 2

After the trial, the court a quo rendered the following judgment:

WHEREFORE, it having been established beyond reasonable doubt that accused Francisco Arroyo
alias 'Diotay and Rito Mina alias 'Tano' committed the offense charged, employing superior strength
qualified by treachery in the process, which aggravating circumstance is offset by one mitigating
circumstance of voluntary surrender in the case of Francisco Arroyo, who is pen under Article 248 of
the Revised Penal Code and is hereby sentenced to suffer an indeterminate imprisonment of from
FOUR (4) YEARS, TWO (2) MONTHS and ONE (1) DAY of prision correccional in its maximum period
as the minimum of the indeterminate penalty to TEN (10) YEARS of prision mayor in its maximum of
the indeterminate penalty, while Rito Mina is hereby sentenced under the same article to suffer an
 indeterminate imprisonment of from TEN (1) YEARS and ONE (1) DAY of prision mayor in its
maximum period as the minimum of the indeterminate penalty to FOURTEEN (14) YEARS and FOUR
(4) MONTHS of reclusion temporal as maximum of the indeterminate penalty; and that both Francisco
Arroyo and Rito Mina are further sentenced each to indemnify the heirs of the victim in the sum of
P30,000.00 without subsidiary imprisonment in case of insolvency; to suffer the accessory penalties
provided for by law; and to pay the costs. 3

In their appeal to the Court of Appeals, docketed as CA-G.R. No. C.R. 08618, appellants argued that the court a
quo erred (1) in giving weight to the partial and biased testimonies of the prosecution witnessed and in disregarding
the evidence for the defense; (2) in relying on the weakness of the defense rather than on the strength of the
prosecution's evidence; and (3) in convicting accused-appellants of the crime charged despite the failure of the
prosecution to prove their guilt beyond reasonable doubt. 4

According to the decision of the Court of Appeals, 5 the evidence shows that on July 9, 1988, there was a dance party in
Barangay Guinbanwahan, Balud, Masbate. Among those who attended the party were appellants Arroyo and Mina, who
are first cousins, the victim Nonito Villarosa, and one Giddy Diaz. All four were acquaintances.

After the dance party at around 2:00 A.M. of July 10, 1989, the four proceeded to walk home to Barangay Dao. Along
the way, appellant Mina had a heated altercation with Villarosa regarding the former's indebtedness to the latter. They
continued walking but upon reaching sitio Tumalonton, Diaz heard Villarosa shout that he had been stabbed by
appellant Mina. Diaz and appellant Arroyo were then following the duo by a few meters. Diaz ran towards Villarosa to
render assistance but he failed to do so since Arroyo pushed him away. Appellant Arroyo then stabbed Villarosa twice
at the latter's back while Villarosa's left arm was being held by appellant Mina.

Diaz ran to Barangay Dao and reported the incident to Villarosa's parents. It being around 4:00 A.M., Villarosa's father
waited for daybreak and then informed the police authorities of Balud about the incident. At around 6:30 A.M.,
appellant Arroyo surrendered at the Balud Police Station and gave to the policemen the knife used in the stabbing of
Villarosa. Patrolmen Leo Arguelles and Salvador Ado proceeded to the scene of the crime and, together with the
victim's parents and some other persons, they searched for the body of the victim. After three (3) hours, they found
the body under burl palms some two hundred (200) meters away from the crime scene. 6

As established by the findings in the post-mortem report of Dr. Oscar Acuesta, the victim sustained these injuries:

1. Wound, Stabbed at the third Intercostal space left parasternal line 1.8 cm. length; 0.6 cm. width; 8.7
cm. depth

2. Wound, Stabbed, neck left anterior triangle about 0.7 cm. length, 0.4 cm. width, 5.2 cm. depth

3. Lacerated wound left supraclavicular area about 5 cm. in length, 1 cm. width, 0.3 cm. depth

4. Stabbed wound back at the level of the thoracic vertebra about 0.7 cm. width, 1.6 cm. length, 10.6
cm. depth

5. Stabbed wound about 1.5 cm. in length, 0.6 cm. width, 11.3 cm. depth at left posterior axillary fold
at the level of sixth Intercostal space probably penetrating the thoracic cavity

and the cause of death was stated as: "Hemorrhage, severe, secondary to stabbed WD, at the 3rd intercostal space
left parasternal line 1.8 cm. length, 0.6 cm. width, 8.7 cm. depth." 7 Appellant Mina denies any participation in the crime,
alleging that at around 3:00 A.M. on July 10, 1988, he was sleeping in their house in Barangay Dao, Balud, which is around
five (5) kilometers from Guinbanwahan, Balud, Masbate, the scene of the killing. 8 Such denial and disclaimer necessarily
constitute the defense of alibi.

Appellant Arroyo's story, on the other hand, is that on July 10, 1988, he met Nonito Villarosa at the dancing hall in
Guinbanwahan at about 12:00 o'clock midnight and that the latter was drinking. He was then asked by Villarosa to go
to the latter's home. They dropped by at Villarosa's brother- in-law where Villarosa got a chicken and they then
proceeded to Dao, Balud, Masbate. On the way, Arroyo told the victim that they should kill the chicken for "pulutan."
Villarosa struck Arroyo with the chicken and this led to an altercation where the victim allegedly unsheathed his knife.
They thereupon grappled and Arroyo was able to wrest the knife from Villarosa, after which this was what allegedly
transpired:

Q What did you do with the knife?

A Because I was nabigla'1 stabbed him.

Q And was he hit when you stabbed. him? A Yes, sir.

Q How many times?

A When he was about to grab the knife I stabbed him twice.

 Q Before you were able to grab the knife from him, was he already wounded during
the process of grappline.

A Yes, sir.

Q What part of his body?

A (Witness pointed to his left chest ... left part of his body.)

Q Now after he was hit, as you said, what else took place?

A He ran. 9

Contrary to the defense posture, we find the testimony of witness Diaz credible. It was he who was with the victim
immediately before the latter was killed. The general rule has always been that the trial court's findings on the
witnesses' credibility should be given the highest respect because it has the advantage of observing the demeanor of
the witnesses and can discern if such witnesses are telling the truth. 10 While there may be settled exceptions to said
rule, we do not discern that any of them obtain in this case.

Furthermore, findings of fact of trial courts are accorded great weight by an appellate tribunal for the latter can only
read in cold print the testimony of the witnesses which commonly is translated from the local dialect into English. In
the process of converting into written form the statements of living human beings, not only fine nuances but a world
of meaning apparent to the judge present, watching and listening, may escape the reader of the written translated
words. 11

Appellants expectedly seek to discredit the testimony of the star prosecution witness, Giddy Diaz, on the ground that
Diaz did not see Nina pull a knife from his body, neither did he see Mina stab the victim. It was only when the victim
was stabbed for the second time that Diaz ran towards the victim and, when asked why he did not run to the victim
when the deceased first shouted, Diaz answered by saying, "What will I do there when he was stabbed? 12

Appellants seize upon this statement as a supposed irregular behavior of Diaz in not rescuing a friend when the latter
was being attacked or in such a predicament that may cause him life or limb. Per contra, we have repeatedly held,
and this is a matter of common observation and knowledge, that the reaction or behavior of persons when confronted
with a shocking incident varies. 13 Thus, we heretofore explained under similar circumstances in People vs. Bolima 14 that:

As to the alleged failure of witness Nipolo to come to the aid of Lelis, the Court observes that this is
not unnatural. He must have been caught by surprise by the turn of events and the better part of
discretion prevented him to come to his aid as it may jeopardize his own life thereby.

Also, even inconsistencies such as in the sequence of the events narrated by the prosecution witnesses have been
held to be trivial and need not impair their credibility, especially when such testimonies are corroborated on material
points in establishing that a crime was committed, 15 and much more so when we consider the rapidity of the acts of the
participants during the incident. We have thoroughly scrutinized the testimony of Diaz and we do not see any of the purported
serious inconsistencies imputed by defense counsel.

Appellants also make capital of the supposed inconsistencies in the testimonies of the other prosecution witnesses,
a stance again adopted to cast doubt on the finding of appellants' guilt. To repeat, this is untenable for, as invariably
stressed by this Court, minor inconsistencies are not sufficient to blur or cast doubt on straightforward attestations.
Far from being badges of fraud and fabrications of the truthfulness on material points of the prosecution witnesses,
these little deviations also confirm that the witnesses had not been rehearsed. The most candid witness oftentimes
makes mistakes but such honest lapses do not necessarily impair his intrinsic credibility. 16

The defense belabors the fact that the initial report of the incident only implicated appellant Arroyo who admitted
having stabbed the victim, but said report failed to include appellant Mina therein. Only the police blotter, they insist,
mentions the name of Rito Mina. It will be noted however, that the said initial report was based only on the facts
gathered by the police during their investigation at the scene of the crime. It should also be made clear, on this point,
that the conviction of both appellants was not based solely on the testimony of the police. The unimpeached testimony
of Diaz categorically established the criminal participation of both appellants. Said positive testimony, as corroborated
by the medicolegal examination of the victim's corpse was correctly relied upon by the appellate court.

Appellant Arroyo invokes self-defense, thereby admitting the fact that he did stab the deceased on that fatal day.
Correspondingly, if an accused invokes self-defense, it is incumbent upon him to prove by clear and convincing
evidence that he acted in self-defense. He must rely on the strength of his own evidence and not on the weakness of
that of the prosecution for, even if the prosecution evidence is weak, it could not be disbelieved after the accused
himself admitted the killing. 17

Accordingly, on the incontrovertible facts of record, the Court cannot but agree with the Solicitor General who found
the strained and uncorroborated self-defense version of Arroyo unworthy of credence on these considerations:
 In the first place, it is hard to believe that appellant Arroyo was able to wrest the fatal knife from the
victim with only a little scratch he allegedly sustained on his finger. For that matter, his version that the
victim sustained the fatal wounds on his chest while grappling for possession of the knife cannot inspire
belief, considering the locations and seriousness of said wounds. In fact, by his own version, appellant
Arroyo stabbed the victim three (3) more times after he had already wrested the knife from the victim
who turned his back to run (tsn, pp. 159-161, Records).

Upon the other hand, the testimony of eyewitness Giddy Diaz is categorical and positive that appellant
Arroyo stabbed the victim at the back while the latter was being held by appellant Rito Mina, who
himself had stabbed the victim ahead. This was corroborated by the extent and number of stab wounds
(5 in all) sustained by the victim indicating that they were inflicted not by one defending himself but by
an aggressor.

Indeed, if the victim were the aggressor, appellant Arroyo would have divulged this at the first
opportunity when he surrendered voluntarily to Pat. Leo Arguelles of the Balud Police Station
immediately after the incident. Instead, he surrendered the weapon he allegedly used in stabbing the
victim with nary a statement that he wrested the same from the victim, much less claim that he acted
in self-defense.

Since the appellant Arroyo failed to establish aggression on the part of the victim, his plea of self-
defense must perforce fail, as there was nothing to repel or prevent to speak of. Hence, there is no
necessity of discussing the other elements thereof. 18

Verily, the number of stab wounds, five (5) of them, which appellants were proved to have inflicted on the victim, their
location on the chest and back, and their depth and penetration constitute ample physical evidence belying self-
defense. 19 In fact, even indulging appellant Arroyo his claim that he wrested the knife from Villarosa, he likewise agreed
20
that his life was consequently thereby no longer in danger, but he still stabbed the victim twice at the back.

Turning now to appellant Mina, as earlier stated he interposed the defense of alibi. Eyewitness Giddy Diaz, however,
positively identified Mina and the latter's participation in the crime, in this wise:

Q And you said, you were going home to Dao, what happened on the way?

A While we were walking to Dao, this Rito Mina and Nonito Villarosa has (sic) a hated
arguments (sic).

Q What was their argument?

A Regarding the indebtedness of Tano Mina to Nonito Villarosa.

Q And what happened when they exchanging (sic) words?

A When we reached Tumalonton, this Nonito Villarosa shouted, why did you stab me
Tano?

Q And what did you do when this Nonito Villarosa Id Nano kay sinaksak mo ako Tano?'

A I ran towards them but when I arrived there Arroyo pushed me and stabbed Nonito
Villarosa.

xxx xxx xxx

Q At that time that Francisco Arroyo stabbed Nonito Villarosa, what was Rito Mina
doing?

A He was holding him.

Q You mean Rito Mina was holding Nonito?

A Yes, sir.

xxx xxx xxx

Q You also said, Rito Nina help(ed) in holding Nonito Villarosa, aside from that, what
did Rito Mina do?

A He stabbed him with a long knife.

 Q Nonito Villarosa was stab(bed) also by Rito Mina?

A Yes, sir.

Q For how many times?

A Twice.

Q And where was Nonito Villarosa stabbed?

A Witness pointed to his right side of his stomach and left side on his breast.

Q And when Rito Mina stabbed Nonito Villarosa, what was his position in relation to
Nonito Vinarosa?

A (Witness demonstrating that both of them were walking on the trail and witness
demonstrating by thrusting his hands).

Q And did you see the weapon used by Rito to (sic) Nonito?

A Yes, sir.

Q Can you descibed that weapon?

A (Witness demonstrating at about 8 inches)

Q After you saw Francisco Arroyo and Rito Mina stabbed Nonito Villarosa, what else
happen(ed)?

A Nothing, I left them there. 21

Alibi is undeniably a weak defense. In the face of the dear and positive testimony of the prosecution witness, regarding
the participation of the accused in the crime, the accused's alibi dwindles into nothingness. 22 For the positive
identification of the accused by the witness as the perpetrator of the crime cannot be overcome by the mere denial of the
accused himself and the defense witnesses. Positive Identification of the accused by the witnesses that he killed the victim
establishes the guilt of the accused to moral certainty. 23 Parenthetically, as observed by the trial court, appellant Mina
himself conceded that Diaz has no ill reason to testify against him. 24

Furthermore, the place of the incident is merely five (5) kilometers away from Mina's residence in Barangay Dao. Said
appellant utterly failed to prove that it was physically impossible for him to be in Tumalonton. The trial court held that
the distance could be negotiated easily by hiking or motorbiking. This Court has time and again held that if there is no
physical impossibility for the accused to be at the scene of the crime, alibi will not prosper as a defense. 25

Accordingly, with the guilt of both appellants having been established beyond per-adventure of a doubt, the only issue
left for determination is the extent of their respective participations and the corresponding penalties therefor. The trial
court convicted both appellants as co-conspirators in the commission of the offense charged. From the testimony of
Giddy Diaz, both appellants aided each other in stabbing the victim to death. There is conspiracy since the evidence
presented by the prosecution clearly indicates that the acts and behavior of both appellants reveal their common
purpose to assault and inflict harm upon the deceased and that there was a concerted execution of that common
purpose, 26 apparently triggered by the preceding altercation between Mina and the victim.

A conspiracy in the statutory language exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. The objective then on the part of the conspirators is to perform an act
or omission punishable by law. What is required is assent to the perpetration of such misdeed. That must be their
intent. There is a need for concurrence of wills or unity of action or purpose, or common and joint purpose and design.
At times, reference is made to previous concert of the criminal design. Its manifestation could be shown by united and
concerted action. Thus, a conspiracy need not be proved by direct evidence. It may be deduced from the mode and
manner in which the offense was perpetrated. The conditions attending its commission and the acts executed may be
indicative of the common design to accomplish a criminal purpose and objective. If there is a chain of circumstances
to that effect, then conspiracy has been established. If such be the case then, the act of one is the act of all the others
involved and each is to be held to the same degree of liability as the others. 27

Herein appellants are undoubtedly guilty of murder as they took advantage of superior strength when the killing was
committed or, as the information states, "conspiring together and helping one another," with both of them being armed
and the victim being unarmed. However, there is some doubt as to whether treachery can be appreciated, which doubt
we resolve in their favor, since treachery depends on the suddenness of the attack by which the victim is rendered hors
de combat, as in an ambuscade, or any manner in which the victim is deprived of an defense, and in which the
malefactors face no risk to themselves. 28 Such a manner of attack must have been chosen by them.
The fact that Mina held the victim while the latter was being stabbed by Arroyo does not necessarily demonstrate
treachery as there is no showing that it was a mode of commission deliberately adopted by them. Defenitely however,
what it proves is the qualifying circumstance of abuse of superiority, since both appellants acted in unison to overpower
the victim by deliberately pooling their combined strength and weapons, and taking advantage of such superior
strength to consummate their nefarious intent with impunity.

Hence, in view of the foregoing, the Court of Appeals acted correctly in finding appellants guilty of murder beyond
reasonable doubt and, modifying the judgment of the court below, in imposing the proper penalty therefor, to wit:

The penalty imposed by the trial court is erroneous. Accused-appellant Arroyo has in his favor the
mitigating circumstance of voluntary surrender and should be sentenced to an indeterminate penalty
of imprisonment, the minimum of which should be within the range of prision mayor in its maximum
period to reclusion temporal in its medium period and the maximum of which should be within the
range of reclusion temporal, in its maximum period. On the other hand, accused- appellant Mina
should be meted out the medium period prescribed by Article 248 of the Revised Penal Code or
reclusion perpetua, there being no mitigating circumstance in his favor. The indemnity awarded to the
heirs of the victim should be increased from P30,000.00 to P50,000.00 in accordance with the ruling
of the Honorable Supreme Court in People vs. Sison, G.R. No. 86455, September 14, 1990.

IN VIEW WHEREOF, We affirm the finding of guilt of accuse-appellants Francisco Arroyo and Rito
Mina in Crim. Case No. 5520 for Murder. Accused-appellant Arroyo is sentenced to suffer
imprisonment the minimum of which is 10 years and 1 day of prision mayor maximum and the
maximum of which is 17 years, 4 months and 1 day of reclusion temporal in its maximum period.
Accused-appellant Mina on the other hand, is sentenced to suffer an imprisonment of reclusion
perpetua. Both accused-appellants are directed to indemnify the heirs of the victim in the sum of
P50,000.00 without subsidiary imprisonment in case of insolvency and to suffer the accessory
penalties provided by law as well as the cost of the suit. 29

WHEREFORE, the judgment of the Court of Appeals is hereby AFFIRMED in toto.

SO ORDERED.
G.R. No. 96368-69 October 17, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ERUBIEN Z. NABAYRA, accused-appellant.

The Solicitor General for plaintiff-appellee.

Liberato R. Ibadlit for accused-appellant.

GUTIERREZ, JR., J.:p

In two (2) separate informations filed by the Provincial Prosecutor's Office of Aklan, appellant Erubien Z. Nabayra,
was charged with the crimes of murder and illegal possession of firearm and ammunition in the Regional Trial Court
of Kalibo, Aklan. The offenses were allegedly committed as follows:

a) For Murder

That on or about the 14th day of December, 1989, in the morning, in Barangay Pinonoy, Municipality
of Libacao, Province of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, armed with a deadly weapon consisting of a fighting bolo, with
evident premeditation and treachery, and with intent to kill, did then and there wilfully, unlawfully and
feloniously attack, assault and wound REMY NABAYRA, thereby inflicting upon the latter physical
injuries, to wit:

1. Incised wounds — a) Forehead 3"L 0.5 Depth;

b) Left forearm-mid-lateral 2" L—1" Depth;

c) Rt. forearm-anterior surface just above the wrist;

2. Stab wounds — a) Rt. iliac region 1.5"L — severing the descending colon.

b) Left hypochondriac region severing part of the liver and transverse colon.

3. Incised wounds — Occipital portion of head — 1.5"L 0.5" depth

— Back at level of the thoracic vertebea (sic) a (sic) severing the vertebrae;

— Level of the right elbow — 1.5"L-1" Depth

 — Rt. lumbar region — 2"L-1.5" Depth

— Left elbow — 1 "L-0.5: Depth.

as per Medico-Legal Report on Physical Injuries issued by Dr. Chedy S. Bueno, Rural Health
Physician, Libacao, Aklan, hereto attached and made an integral part of this information, which injuries
caused the death of REMY NABAYRA. (Information, pp. 1-2)

b) For illegal possession of firearm and ammunition defined and penalized under Presidential Decree
No. 1866:

That on or about the 14th day of December, 1989, in the morning. in the Poblacion, Municipality of
Libacao, Province of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, did then and there wilfully, unlawfully and feloniously have in his
possession and under his custody and control one (1) handgun, locally known as "Paltik or Pugakang"
and two (2) 12 gauge live ammunitions, without having obtained the proper license, permit or lawful
authority to carry and/or possess the same.

CONTRARY TO LAW. (Joint Decision, p. 2)

The two cases arose from a continuing occasion on the same date, hence they were jointly tried by the trial court.

When arraigned, the appellant in both cases pleaded not guilty.

As regards the murder charge, the appellant admitted killing the victim, his uncle, Remy Nabayra. He, however,
interposed self-defense. With this admission, the prosecution did not anymore present evidence to prove that the
accused killed the victim. However, since the defense would not admit all the injuries enumerated in the information,
the prosecution presented the government doctor to testify on the injuries suffered by the victim resulting in his death.

As regards the charge for illegal possession of firearm and ammunition, the prosecution presented the testimonies of
two (2) police officers of the Libacao Police Force who apprehended the appellant and found in his possession a
handbag (Exhibit "C") containing a handgun (Exhibit C-1); an ammunition which was red in color (Exhibit C-2); another
ammunition (Exhibit C-3) and a sack.

The trial court narrates the prosecution's evidence as follows:

At about 11 o'clock in the morning of December 14, 1989 in the bank of the Aklan river in Barangay
Pinonoy, Libacao, Aklan, where there was a ferry service from poblacion Libacao on the other side of
the said river, the accused Erubien Z. Nabayra boloed and killed his uncle Remy Nabayra. The
prosecution, as already stated above, had dispensed with the presentation of evidence to prove this
fact as the accused had admitted that he was the one who inflicted the wounds on the said victim
during the said incident which resulted in the latter's death. At about that time, Pfc. Alberto Villorente
and Pat. Elmer de Jose were patrolling the vicinity of the ferry zone and saw a group of persons near
the opposite bank of the Aklan river which is already within the territory of Barangay Pinonoy. The said
barangay is separated by the Aklan river from poblacion Libacao. The said policemen met Ulysses
Ortega, Jr., 12 years old and boatman of the ferry boat, who informed them that there was a hacking
incident at the other side of the river. The policemen proceeded on their way to the scene of the
incident and they met the accused Erubien Nabayra in the river bank, poblacion side, who was walking
towards poblacion Libacao. They saw the clothes and bolo of Erubien Nabayra stained with fresh
blood, so they told him to stop and put down his bag and bolo, which he heeded. The policemen
noticed a gun inside the handbag as its barrel was protruding by one and one-half inches through the
hole in the bag. They confiscated the handgun (Exhibit "C" for Crim. Case No. 2999), including the
bag (Exhibit "B" for Crim. Case No. 2999), and also the bolo (Exhibit "C" for Crim. Case No. 2998) and
its scabbard (Exhibit "C-1", Crim. Case No. 2998). When the policemen opened the handbag and took
out the gun (a homemade handgun or "paltik"), they found out that it was loaded with one ammunition
(Exhibit "C-1" for Crim. Case No. 2999), and another ammunition (Exhibit "C-2") was found in the sack
(Exhibit "C-3"). When asked by the policemen at the time they met why his clothes were stained with
blood, the accused answered that he hacked his uncle Remy Nabayra. Pat. Elmer de Jose went to
the scene of the incident while Pfc. Alberto Villorente kept watch over the accused. Pat. de Jose found
the victim about 50 meters from the river. The policemen caused the victim to be brought to the Libacao
Medicare Hospital, then they proceeded to the police station with the accused where they opened the
handbag containing the gun. When the policemen apprehended the accused in the river bank, the
accused admitted ownership of the gun. He was not however able to present any license or permit to
carry any firearm. When the policemen confronted the accused about his bloodstained clothes and
bolo, the accused did not tell them that he was surrendering because he hacked his uncle Remy
Nabayra. (Joint Decision, pp. 3-5)

On the other hand, the appellant's version of the incident is summarized by the trial court as follows:
 After plowing his corn field in Barangay Pinonoy, Libacao, Aklan, at past 10 o'clock in the morning of
December 14, 1989, the accused went to the Aklan River, about 30 meters from his farm, to wash. In
the river bank, he met the victim Remy Nabayra, his uncle. The said victim got a bag from inside the
sack he was carrying and after opening the bag, he took out a gun, a "paltik" pistol, and aimed it at the
.accused, saying, "I will shoot, I will kill you." At this juncture, the accused drew his bolo from its
scabbard tied to the left side of his waist and hacked Remy Nabayra, hitting the latter on the left temple.
Remy Nabayra turned around after being hit, and the accused hacked him again hitting him at the
back. Then the victim ran away and the accused chased him. The victim fell to the ground and the
accused stabbed him again. The accused got the gun which the victim was holding with his right hand
beneath his back. The victim was not able to fire his gun even once. The accused place the gun inside
the bag which the victim was also holding and crossed the river by wading, with the intention of going
to the municipal hall of Libacao in order to surrender the gun. On the way, the accused met Pfc. Alberto
Villorente and Pat. Elmer de Jose who told him to put down the gun and bolo, which he did. The
accused identified the bolo, Exhibit "C" (for Crim. Case No. 2998), and admitted it was the same bolo
he used in hacking and stabbing Remy Nabayra (tsn., p. 9, April 20, 1990, M.V. Quimpo). He
surrendered the gun and the bolo to the policemen. The accused was not in good terms with Remy
Nabayra before December 14, 1989 because the latter was accusing him of having stolen the carabao
of Anunciacion Orbista Nabayra. mother of Remy Nabayra and grandmother of the accused. On cross-
examination, the accused said the police stopped him and arrested him; that he did not tell the
policemen he was surrendering to them; that it was already while he was in the hands of the policemen
and the gun was already in the possession of the policemen when he told them he was going to the
municipal building (tsn., pp. 3-5, May 2, 1990, M.V. Quimppo). (Joint Decision, p. 5)

The appellant was found guilty in both cases, to wit:

WHEREFORE, after a meticulous assessment of the evidence on record, this Court finds, and so
holds, that the accused Erubien Z. Nabayra is guilty beyond reasonable doubt, as principal, of the
crime of Murder in Criminal Case No. 2998, defined and penalized in Article 248 of the Revised Penal
Code, and of Illegal Possession of Firearm and Ammunition in Criminal Case No. 2999, defined and
penalized by Presidential Decree No. 1866, and hereby sentences him as follows:

For the crime of Murder, the penalty of Reclusion Perpetua, to indemnify the heirs of Remy Nabayra
the sum of P50,000.00, as death indemnity.

For the crime of Illegal Possession of Firearm and Ammunition, the penalty of imprisonment ranging
from EIGHTEEN (18) YEARS, EIGHT (8) MONTHS AND ONE (1) DAY of Reclusion Temporal as
minimum to TWENTY (20) YEARS of Reclusion Temporal as maximum, and to pay the costs.

The firearm and ammunition, Exhibits C, C-1 and C-2, are ordered forfeited in favor of the government
to be disposed of according to law.

The appellant now contends:

1. THE LOWER COURT ERRED IN FINDING THAT THE ACCUSED IS THE AGGRESSOR.

2. THE LOWER COURT ERRED IN FINDING THAT THE GUN WHICH IS THE SUBJECT OF
CRIMINAL CASE 2990 BELONGS TO THE ACCUSED. (P. 3, Brief for the Accused-Appellant).

The appellant insists that he killed his uncle Remy Nabayra in self-defense. In view of this admission it is incumbent
upon him to proffer strong clear evidence to prove this justifying circumstance to be relieved of any criminal liability.
(People v. Bayocot, 174 SCRA 285 [1989]; People v. Masangkay, 157 SCRA. 320 [1988]; People v. Abagon, 161
SCRA 255 [1988]; People v. Tesorero, 71 SCRA 579 [1976]; People v. Llamera, 51 SCRA 48, [1973]; People v.
Bauden, 77 Phil. 105 [1946]; People v. Ansoyon, 75 Phil. 772 [1946] cited in People v. Bausing, et al., G.R. No. 64965
July 18, 1991.

Legitimate self-defense is acceptable only when the following requisites are present: 1) unlawful aggression on the
part of the victim; 2) reasonable necessity of the means employed to prevent or repel it; and 3) lack of sufficient
provocation on the part of the person defending himself. (par. 1, Article 11, Revised Penal Code).

The appellant claims that the victim was the unlawful aggressor since the latter was the first to draw his gun and tried
to shoot him. Unluckily for the victim, the gun did not fire prompting him to draw his bolo and hacked him in self-
defense.

The circumstances as related by the appellant as regards the encounter between him and the victim and the physical
evidence on record however, belie the above asseverations.

According to the appellant, he met the victim at the bank of the river who was carrying a sack. The victim then got a
bag from the sacks. The victim opened the bag and took out a gun which he aimed at him saying "I will shoot you, I
will kill you." At this precise time, the appellant drew his bolo from its scabbard and began hacking the victim.
The scenario depicted by the appellant is incredulous. Human instinct to preserve one's life demands that at time the
victim took out the gun from his bag, the appellant should have reacted to repel the imminent danger that he found
himself in. The appellant would not have stood there watching and waiting for the victim to open a bag, take out a gun
and aim at him. He would not have awaited the shout "I will kill you" before he started to repel the action of the victim.
Such action of the victim against the appellant could have been foreseen by a rational man considering that according
to the appellant, he and the victim were not on good terms as he was accused by the victim to have stolen the carabao
of the mother of the victim. Well-settled is the rule that "evidence to be believed must not only proceed from the mouth
of a credible witness, but must be credible in itself such as the common experience and observation of mankind can
approve as probable under the circumstances." (People v. Flores, 125 SCRA 244 [1983]; People v. Torio, 126 SCRA
265 [1983]; Borromeo v. Court of Appeals, 131 SCRA 318 [1984].

Moreover, the manner of infliction and the number of physical injuries sustained by the victim during the incident
negate the self-defense posture of the appellant. As the lower court correctly stated:

If the intention of the accused was only to defend himself, and he was already able to hack the victim
on the left temple, which wound was fatal according to the doctor, he would not have inflicted further
injuries on the victim who was his uncle. The accused continued to hack the victim on his back and
even chased the victim when he ran away to escape from further torture. When the victim fell to the
ground, the accused inflicted more injuries on him, as according to him, he wanted to kill the victim
and get the gun from him (tsn., p. 7, April 20, 1990, M.V. Quimpo). The accused acted with murderous
ferocity when he finished the victim off. The victim appeared helpless at the hands of the accused. He
was at the complete mercy of the accused. Even Ludovico Asiong, a witness for the defense,
confirmed the fact that the victim went to the public market of Libacao that fateful day of December
14, 1989 as it was the market day of the town and was carrying that sack on his way home. (Joint
Decision, p. 7)

However, we agree with the Solicitor General that the crime committed by the appellant was homicide and not murder.

The information alleges the existence of treachery and evident premeditation qualifying the crime committed by the
appellant to murder. However, the prosecution did not present any evidence to prove the presence of any of these
qualifying circumstances. It did not present eyewitnesses to the incident. The doctor presented as witness testified
only on the number of physical injuries sustained by the victim as a result of the hacking incident. The two policemen
presented as witnesses did not testify on the circumstances before or during the hacking incident.

In view of these circumstances the lower court erred in appreciating treachery or evident premeditation to qualify the
crime to murder. The well-entrenched principle is that "treachery cannot be presumed. It must be proven as
conclusively as the act of killing itself." (People vs. Caldito, 182 SCRA 66 [1990] citing People v. Manalo, 148 SCRA
98 [1987]). As regards the qualifying circumstance of evident premeditation, the following elements must be
established: 1) the time when the offender determined to commit the crime; 2) an act manifestly indicating that he has
clung to his determination; 3) sufficient lapse of time between determination and execution to allow himself to reflect
upon the consequences of his act. (People v. Quintos, 186 SCRA 14 [1990] citing People v. Talla, 181 SCRA 133
[1990].

Anent the charge of illegal possession of firearm and ammunition, the appellant reiterates his stance that the gun and
the ammunition taken from him belonged to the victim. He testified that at the time the two policemen apprehended
him, he was on his way to surrender himself, the bolo he used in hacking the victim, and the gun he took from the
victim to the police authorities.

The appellant's claim was, however, denied by the two policemen who apprehended him. When confronted by Pfc.
Villorente and Pat. de Jose, the appellant did not state that the gun was taken by him from Remy Nabayra and that
he was surrendering the same to them. It was only after the two policemen apprehended the appellant that the latter
told them that he was on his way to the municipal hall. In fact, according to Pfc. Villorente, the appellant admitted that
he owned the unlicensed gun. Villorente testified:

xxx xxx xxx

Q After finding out that he was carrying a handgun locally known as "paltik", did you
ask him if he has any license for the possession of the same?

A I did not ask him, instead we just brought him to our station.

xxx xxx xxx

Q Did he produce any license in your presence authorizing him to have that firearm?

A There is none, sir.

Q Even in the station he did not present any license to carry said firearm?
 A No, sir.

xxx xxx xxx

(TSN, February 26, 1990, pp. 7-8).

Q Did the accused in this case have any companion during the time that you arrested
him?

A None.

Q Did he accept ownership of this handbag as well as the handgun?

A Yes, sir. He took hid (sic) by putting it down.

xxx xxx xxx

(TSN, February 27, 1990, p. 7; emphasis supplied).

As between these two conflicting testimonies, we rule in favor of the police officers. The appellant did not show
evidence that the police officers were prejudiced against him. Between the biased testimony of the appellant and the
unprejudiced testimony of the police officers, the latter's testimony should prevail. (People v. Canizares, 107 SCRA
296 [1981]).

WHEREFORE, the Court renders judgment as follows:

1. The decision in G.R. No. 96368 is MODIFIED by holding appellant Erubien Z. Nabayra guilty of HOMICIDE. There
being neither generic mitigating nor an aggravating circumstance present, the appellant shall suffer the penalty of
imprisonment for an indeterminate period ranging from TEN (10) YEARS of prision mayor as minimum to
SEVENTEEN (17) YEARS and FOUR (4) MONTHS of reclusion temporal as maximum.

2. In G.R. No. 96369, the questioned decision is AFFIRMED; and

In all other respects, the questioned joint decision is AFFIRMED.

SO ORDERED.
G.R. No. 115233 February 22, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
WILSON GUTUAL Y REMOLLENA and JOAQUIN NADERA Y APOSTOL, accused.

DECISION

DAVIDE, JR., J.:

On 26 June 1991, an information1 was filed with the Regional Trial Court (RTC) of Tagum, Davao del Norte, Branch
1, charging Wilson Gutual and Joaquin Nadera with the crime of murder (Criminal Case No. 7851). The accusatory
portion thereof read:

That on or about December 29, 1990, in the Municipality of San Vicente, Province of Davao, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and
mutually helping with one another, with treachery and evident premeditation, with intent to kill, armed with [a]
garand rifle and [an] M14 rifle, did then and there wilfully, unlawfully and feloniously attack, assault and shoot
one Celestino Maglinte, thereby inflicting upon him wounds which caused his death, and further causing
actual, moral and compensatory damages to the heirs of the victim.

Contrary to law.

The accused, members of the Civilian Armed Forces Geographic Unit (CAFGU) in the Municipality of San Vicente,
Davao,2 pleaded not guilty on arraignment.3 Thereafter, trial on the merits ensued.

Judge Marcial Fernandez received the testimonies of all the witnesses except that of the surrebuttal witness, which
was received by his successor, Judge Bernardo V. Saludares.4

At trial, the prosecution presented six witnesses, five of whom were related to the victim by affinity. The defense, in
turn, presented nine witnesses, including the two accused and two barangay council officers. As might be expected,
the prosecution and defense had conflicting versions of the event.

According to the prosecution, on 29 December 1990, at around 1:30 p.m., the victim Celestino Maglinte was walking
along the barangay road of Belmonte in San Vicente, Davao, carrying his four-year old child. The victim had just come
from his farm and had a bolo with him, which was placed in its scabbard. Maglinte was then surprised by the sound
of an exploding firecracker; thus, he left his child by the road and ran towards the store of Barangay Captain Wayne
Gutual, calling to the latter, who did not, however, cone out of the store. Maglinte headed for the nearby basketball
court, apparently still searching for the Barangay Captain. All the while the bolo remained in its scabbard. Suddenly,
accused Wilson Gutual and Joaquin Nadera appeared, armed with a Garand rifle and an M-14 rifle, respectively.
Gutual fired around three warning shots into the air and Maglinte dropped to the ground. Gutual then went near
Maglinte and shouted "surrender," thus Maglinte raised his right arm as a sign of submission. At that time, Gutual fired
some five shots at Maglinte. Although already injured, Maglinte managed to stand. Thus, Gutual and Nadera fired
again, and the victim toppled over, mortally wounded. Gutual and Nadera left the scene at once. Immediately the
following morning, the victim was buried upon the Barangay Captain's order.5

The defense claims that the killing was committed in self-defense or defense of a relative or stranger. It tried to prove
that on the aforementioned date and time, the victim was running amuck or berserk,6 chasing Barangay Captain
Wayne Gutual in front of the latter's house. Drawn by shouts for help from onlookers, accused Gutual and Nadera
rushed to the scene, with Gutual firing warning shots into the air. Maglinte stopped pursuing the barangay captain,
turned towards the accused, then started approaching them. Although Gutual continued to fire warning shots, Maglinte
kept walking towards him, while Gutual kept retreating to put some distance between him and the victim. The two
moved some ten meters, crossed the road in front of the barangay captain's house, and ended up near the barangay
hall. Finally, Gutual was, pinned against the staircase of the barangay hall. Maglinte was now about one to three
meters from Gutual and pressing on, unceasingly hacking away at Gutual, who, however, managed to evade the
blows. Nadera fired warning shots into the air, but Maglinte continued his attack. Gutual then fired at the victim's hand
to disarm him, but unfortunately the bullet pierced Maglinte's bolo-wielding arm, went through his chest, and came out
his back.

Gutual and Nadera were arrested on 29 January 1991.7 Nearly two months after the killing, some 200 residents of
Barangay Belmonte held a rally in front of the police station to demand the release of the two accused.8 The rallyists
brought with them a "manifesto"9 signed by barangay council officials and members which stated, among other
matters, that they knew Celestino Maglinte to be a dangerous person and that the accused fired at the victim only
after knowing that he would be killed by the latter.

On 2 January 1994, the trial court, per Judge Saludares, promulgated its decision 10 acquitting Nadera but convicting
Gutual. The dispositive portion of the decision read:

WHEREFORE, premises considered, this Court finds the accused Wilson Gutual y Remollena, 43 years of
age, married, and a resident of Belmonte, San Vicente, Davao, farmer by occupation, guilty beyond
reasonable doubt of the crime of Murder as penalized under Article 248 of the Revised Penal Code, as charged
in the information, and is therefore hereby sentenced to suffer the penalty of reclusion perpetua, with all the
accessory penalties provided by law, and jointly and severally with his co-accused Joaquin Nadera y Apostol,
42 years of age, married and a resident of Belmonte, San Vicente, Davao, and a farmer by occupation, who
is hereby acquitted of the criminal charge on the ground of reasonable doubt, is/are hereby ordered to
indemnify the widow, Virginia Ayendo Vda. de Maglinte, and heirs of the victim, Celestino Maglinte, in the
amount of Fifty Thousand (P50,000.00) Pesos by way of compensatory damages for such death, Twenty
Thousand (P20,000.00) Pesos by way of moral damages, Ten Thousand (P10,000.00) Pesos by way of
exemplary damages, and Five Thousand (P5,000.00) Pesos as funeral and burial expenses. 11

Gutual (hereinafter, accused-appellant) seasonably appealed from the decision and alleges that the lower court
committed the following errors:

. . . IN FINDING BEYOND REASONABLE DOUBT ACCUSED WILSON GUTUAL GUILTY FOR MURDER
AND IN IMPOSING CIVIL LIABILITY ON ACCUSED JOAQUIN NADERA.

II

. . . IN NOT ACQUITTING ACCUSED WILSON GUTUAL ON GROUNDS OF EITHER SELF-DEFENSE OR

DEFENSE OF A RELATIVE, OR IN NOT CONSIDERING IN FAVOR OF ACCUSED WILSON GUTUAL [THE]
INCOMPLETE JUSTIFYING CIRCUMSTANCE OF SELF-DEFENSE OR DEFENSE OF [A] STRANGER.

III

. . . IN IMPOSING CIVIL LIABILITY ON ACCUSED JOAQUIN NADERA INSPITE OF HIS ACQUITTAL.

IV

. . . IN NOT HOLDING THAT SELF-DEFENSE OR DEFENSE OF [A] RELATIVE HAS BEEN PROVEN BY
EVIDENCE SUFFICIENTLY ENOUGH TO MEET THE REQUIREMENTS OF MORAL CERTAINTY. 12

These assigned errors may be reduced to two issues:

I. Whether or not Joaquin Nadera should be held civilly liable despite his acquittal; and

II. Whether or not Wilson Gutual has sufficiently proved self-defense or defense of a relative or of a stranger,
or, at the very least, the incomplete justifying circumstance of self-defense or defense of a stranger.

In the alternative, the accused-appellant contends that should he be convicted of any crime, it should be of homicide
only, as the prosecution failed to prove the qualifying circumstances of treachery and evident
premeditation. 13 Moreover, the mitigating circumstance of incomplete self-defense or defense of a relative should be
considered in the imposition of the penalty. 14
As to the first issue, the Office of the Solicitor General correctly points out that the "[a]ppellant lacks the standing to
question the court's decision as it is Nadera who is affected thereby,"' and Nadera did not appeal from the said
decision. 15 Section 11(a), Rule 122 of the Rules of Court provides that an appeal taken by one or more of several
accused shall not affect those who did not join in the appeal.

The second issue involves a question of fact.

Since the judge who penned the questioned decision, Judge Saludares, heard only one of the witnesses and only at
the surrebuttal stage, the respect ordinarily accorded the trial court's findings of fact does not apply in this
instance. 16 We are thus compelled to sift through the transcripts of the stenographic notes of the testimonies of the
witnesses.

After a painstaking evaluation of the evidence, we find the version of the prosecution unworthy of credence. First, it is
scarcely believable for the victim who was already thirty-two years of age to be "afraid of" the mere sound of an
exploding firecracker, as the prosecution witness intimated. 17 New Year's Day was then only two days away, such
that people, even those in the provinces, were already accustomed to hearing such sound.

Second, it likewise seems unusual for the victim to leave his four-year old daughter by the road; 18 if he was really
afraid of the sound of a firecracker, he would have probably thought that his child likewise was, and should have
therefore put her in a safe place before searching for the barangay captain.

Third, if the deceased's bolo was indeed in its scabbard, there was no reason then for the two accused to fire three
warning shots into the air. Having allegedly laid flat on the ground with his right arm raised, 19 the victim posed no
threat to the accused as would prompt the latter to fire at him. Besides, it was only around half past one o'clock in the
afternoon, and a lot of people were in the vicinity. 20

Fourth, if it were true that what transpired was a cold-blooded murder, the family or relatives of the victim would have
insisted that the victim's corpse be autopsied. Instead, they buried him immediately the following morning. 21

Finally, the Death Certificate dated 17 January 1991 22 belies the testimonies of the prosecution witnesses that the
accused was shot several times. 23 Although the doctor who signed the death certificate did not actually examine the
victim's corpse, the entry regarding the cause of the victim's death, i.e., "Hypovolemia secondary to gunshot wond,
anterior chest, R forearm per informant's report," may be deemed conclusive, since it was admittedly supplied by a
relative of the deceased. Esmeraldo Miñoza, a first cousin of the victim's wife, whose name and signature appears in
the said certificate as the informant, was presented by the defense as a hostile witness. He admitted to having signed
the certificate on behalf of Mrs. Virginia Maglinte, the victim's wife. 24 He, howver, stated that the ones who gave the
information regarding the injuries sustained by the victim were the witnesses themselves, namely, "Eutiquio Iyana and
Jose de Leon, the one who cleaned up the wounds of victim Celestino Meglinte and some BHW (Barangay Health
Workers] of Barangay Belmonte." 25

At the rebuttal stage, Eutiquio Iyana, the husband of a first cousin of Mrs. Maglinte, admitted to having given the doctor
the information anent the wounds suffered by the victim and seen the doctor write down the said information. 26 In fact,
the victim's wife was concededly present when the doctor filled up and signed the death certificate, and she was even
the one who secured that document . 27 If the entry made by the doctor was different from what the informant reported,
then it should have been questioned right then and there by either Mr. Iyana or Mrs. Maglinte.

At any rate, since the accused-appellant owned up to killing the victim, the burden of evidence shifted to him. He must
then show by clear and convincing evidence that he indeed acted in self-defense or in defense of a relative or a
stranger. For that purpose, he must rely on the strength of his own evidence and not on the weakness of the
prosecution's evidence. 28

As correctly posited by the Appellee, the defense of a relative or a stranger is unavailing in this case. The accused-
appellant shot the victim while the latter, after having stopped chasing the barangay captain, was approaching the
former. At that instance then, the barangay captain's life was no longer in danger as the accused-appellant admitted.
Thus, on questions proposed by the court, the accused-appellant responded:

Q When Maglinte was chasing the barangay captain, you said that you were concentrating on him alone.
Is that correct?

A I was looking at Maglinte and I ordered him to stop, Your Honor.

Q What were the exact words you used?

A I told him "pare, stop. Do not bring a bolo with you because the people are afraid of you."

Q Did Maglinte obey you?

A No, Your Honor. He did not speak and he did not put down the bolo.
 Q What did he do after you cautioned him or warned him?

A After he stopped, he faced me and he slowly went towards me.

Q So, he discontinued chasing the barangay captain?

A Yes. He discontinued chasing the barangay captain and he slowly went towards me, Your Honor.

Q At that time, the barangay captain's life was no longer in danger?

A Yes, because he already ceased chasing him.

Q And you insisted he approached you. Did Maglinte approach you?

A Yes, while he was going towards me, I was also stepping backward.

Q Did you warn him while he was chasing you?

A When he was slowly going towards me, I fired a warning shot, Your Honor. 29 (emphasis supplied)

Clearly then, what might have been unlawful aggression on the part of the victim against the barangay captain had
ceased, and there was nothing more to prevent or repel. Hence, the second requisite of the defense of a relative or a
stranger under Article 11 of the Revised Penal Code, viz., reasonable necessity of the means employed to prevent or
repel the unlawful aggression, cannot be present.

Consequently, the accused-appellant has to rely solely on the justifying circumstance of self-defense.

The requisites of self-defense are: (1) unlawful aggression; (2) reasonable necessity of the means employed to
prevent or repel it; and (3) lack of sufficient provocation on the part of the person defending himself. 30

It was sufficiently established that the unlawful aggression came from the victim. Indeed, since he was running amuck,
he did not care anymore whom to attack or whether the person to be attacked was unarmed or armed with a high-
powered rifle. Significantly, the entry in the Death Certificate corroborates the theory of the defense that the victim
was in the act of hacking the accused-appellant when the latter "shot deceased's right hand for the purpose only of
throwing the bolo out of his hand, but the bullet pierced through and hit the deceased's breast. 31

There can be, as well, no doubt in the mind of the Court that there was lack of sufficient provocation on the part of the
accused-appellant.

Whether the means employed by the accused-appellant were reasonable depends on the circumstances of this case.

The trial court observed that a bolo-wielder did not stand a chance against a CAFGU member "trained in the art of
self-defense and close-in fighting [and] armed with a Garand rifle." 32 As observed by the trial court, the accused-
appellant.

[C]ould just have easily parried the alleged bolo-hacking of Celestino Maglinte, if ever such version was true,
with the use of his Garand Rifle, and could have applied close fighting techniques which he was trained to do
as a CAFGU member, and disarm Maglinte of his bolo instead of shooting the victim. 33

It has, however, been duly established that the victim had a predilection for violence. 34 Barangay Captain Wayne
Gutual testified that on at least three previous occasions, he had disarmed the victim:

Q Now, Mr. witness, may we know from you if you know the reason why the deceased Celestino Maglinte
would take your life?

A Regarding Celestino Maglinte, we have no grudge with each other. But because I am the barangay
captain, there were times that his wife Virginia will not yield to carnal relation, that is why he would be violent
and threaten her with bolo. That is why I disarmed him three times already.

xxx xxx xxx

Q What did you disarm from Celestino?

A First, I was able to disarm him with hunting knife; second with bolo; and third with a piece of hard wood. 35

The accused-appellant became the target of the victim's violent nature when, after the victim stopped chasing the
barangay captain, he turned to and vented his ire against the accused-appellant. The victim menacingly walked
towards the latter who, in turn, kept walking backwards until he was pinned against the staircase of the barangay hall.
At that point, the victim unceasingly hacked away at the accused-appellant and continued to move closer to him.
When the victim was then only one meter away, he raised the bolo, ready to strike the accused-appellant.

Plainly, the accused-appellant could no longer retreat from the continuing assault by the victim who, as inexorably
shown by his relentless advance towards the accused-appellant, was poised to kill the latter. The danger to the
accused-appellant's life was clearly imminent. It would not then be proper nor reasonable to claim that he should have
fled or selected a less deadly weapon, because in the emergency in which, without any reason whatever, he was
placed, there was nothing more natural than to use the weapon he had to defend himself. In the natural order of things,
following the instinct of self-preservation, he was compelled to resort to a proper defense. 36 It is settled that reasonable
necessity of the means employed does not imply material commensurability between the means of attack and
defense. What the law requires is rational equivalence, in the consideration of which will enter the principal factors the
emergency, the imminent danger to which the person attacked is exposed, and the instinct, more than the reason,
that moves or impels the defense, and the proportionateness thereof does not depend upon the harm done, but rests
upon the imminent danger of such injury. 37

The accused-appellant has convincingly and sufficiently shown that he killed the victim in the legitimate exercise of
self-defense, a justifying circumstance. Pursuant to paragraph 1, Article 11 of the Revised Penal Code, the accused-
appellant incurred no criminal liability.

WHEREFORE, the instant appeal is GRANTED. That portion of the challenged decision of Branch 1 of the Regional
Trial Court of Tagum, Davao in Criminal Case No. 7851 finding accused-appellant WILSON GUTUAL Y REMOLLENA
guilty beyond reasonable doubt of the crime of murder and sentencing him to suffer the penalty of reclusion
perpetua and to pay the civil liabilities therein mentioned is REVERSED and SET ASIDE and another is hereby
entered ACQUITTING him of the charge. He should forthwith be released from detention, unless his further detention
is warranted for any other legal or valid ground.

Costs de oficio.

Narvasa, C.J., Melo, Francisco and Panganiban, JJ., concur.

G.R. No. 135981 January 15, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
MARIVIC GENOSA, appellant.

DECISION

PANGANIBAN, J.:

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

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

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

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

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

The Case

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

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

The Information3 charged appellant with parricide as follows:

"That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of Isabel, Province of
Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to
kill, with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack,
assault, hit and wound one BEN GENOSA, her legitimate husband, with the use of a hard deadly weapon,
which the accused had provided herself for the purpose, [causing] the following wounds, to wit:

'Cadaveric spasm.

'Body on the 2nd stage of decomposition.

'Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes protruding from its sockets and
tongue slightly protrudes out of the mouth.

'Fracture, open, depressed, circular located at the occipital bone of the head, resulting [in] laceration
of the brain, spontaneous rupture of the blood vessels on the posterior surface of the brain, laceration
of the dura and meningeal vessels producing severe intracranial hemorrhage.

'Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of the epidermis.

'Abdomen distended w/ gas. Trunk bloated.'

which caused his death."4

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

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) summarizes the prosecution's version of the facts in this wise:

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

"On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving their salary. They each
had two (2) bottles of beer before heading home. Arturo would pass Ben's house before reaching his. When
they arrived at the house of Ben, he found out that appellant had gone to Isabel, Leyte to look for him. Ben
went inside his house, while Arturo went to a store across it, waiting until 9:00 in the evening for
the masiao runner to place a bet. Arturo did not see appellant arrive but on his way home passing the side of
the Genosas' rented house, he heard her say 'I won't hesitate to kill you' to which Ben replied 'Why kill me
when I am innocent?' That was the last time Arturo saw Ben alive. Arturo also noticed that since then, the
Genosas' rented house appeared uninhabited and was always closed.

"On November 16, 1995, appellant asked Erlinda Paderog, her close friend and neighbor living about fifty (50)
meters from her house, to look after her pig because she was going to Cebu for a pregnancy check-up.
Appellant likewise asked Erlinda to sell her motorcycle to their neighbor Ronnie Dayandayan who
unfortunately had no money to buy it.

"That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus going to Ormoc when he
saw appellant going out of their house with her two kids in tow, each one carrying a bag, locking the gate and
taking her children to the waiting area where he was. Joseph lived about fifty (50) meters behind the Genosas'
rented house. Joseph, appellant and her children rode the same bus to Ormoc. They had no conversation as
Joseph noticed that appellant did not want to talk to him.

"On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor emanating from his
house being rented by Ben and appellant. Steban went there to find out the cause of the stench but the house
was locked from the inside. Since he did not have a duplicate key with him, Steban destroyed the gate padlock
with a borrowed steel saw. He was able to get inside through the kitchen door but only after destroying a
 window to reach a hook that locked it. Alone, Steban went inside the unlocked bedroom where the offensive
smell was coming from. There, he saw the lifeless body of Ben lying on his side on the bed covered with a
blanket. He was only in his briefs with injuries at the back of his head. Seeing this, Steban went out of the
house and sent word to the mother of Ben about his son's misfortune. Later that day, Iluminada Genosa, the
mother of Ben, identified the dead body as that of [her] son.

"Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at the police station at Isabel,
Leyte, received a report regarding the foul smell at the Genosas' rented house. Together with SPO1 Millares,
SPO1 Colon, and Dr. Refelina Cerillo, SPO3 Acodesin proceeded to the house and went inside the bedroom
where they found the dead body of Ben lying on his side wrapped with a bedsheet. There was blood at the
nape of Ben who only had his briefs on. SPO3 Acodesin found in one corner at the side of an aparador a
metal pipe about two (2) meters from where Ben was, leaning against a wall. The metal pipe measured three
(3) feet and six (6) inches long with a diameter of one and half (1 1/2) inches. It had an open end without a
stop valve with a red stain at one end. The bedroom was not in disarray.

"About 10:00 that same morning, the cadaver of Ben, because of its stench, had to be taken outside at the
back of the house before the postmortem examination was conducted by Dr. Cerillo in the presence of the
police. A municipal health officer at Isabel, Leyte responsible for medico-legal cases, Dr. Cerillo found that
Ben had been dead for two to three days and his body was already decomposing. The postmortem
examination of Dr. Cerillo yielded the findings quoted in the Information for parricide later filed against
appellant. She concluded that the cause of Ben's death was 'cardiopulmonary arrest secondary to severe
intracranial hemorrhage due to a depressed fracture of the occipital [bone].'

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

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

"Appellant, however, insisted that she ended the life of her husband by shooting him. She supposedly
'distorted' the drawer where the gun was and shot Ben. He did not die on the spot, though, but in the
bedroom."7 (Citations omitted)

Version of the Defense

Appellant relates her version of the facts in this manner:

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

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

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

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

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

"Both mother and son claimed they brought Ben to a Pasar clinic for medical intervention.

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

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

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

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

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

"7. In her defense, witnesses who were not so closely related to Marivic, testified as to the abuse and violence
she received at the hands of Ben.

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

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

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

'7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified that in the afternoon of
November 15, 1995, Marivic went to her house and asked her help to look for Ben. They searched in the
market place, several taverns and some other places, but could not find him. She accompanied Marivic home.
Marivic wanted her to sleep with her in the Genosa house 'because she might be battered by her husband.'
When they got to the Genosa house at about 7:00 in the evening, Miss Arano said that 'her husband was
already there and was drunk.' Miss Arano knew he was drunk 'because of his staggering walking and I can
also detect his face.' Marivic entered the house and she heard them quarrel noisily. (Again, please note that
this is the same night as that testified to by Arturo Basobas) Miss Arano testified that this was not the first time
Marivic had asked her to sleep in the house as Marivic would be afraid every time her husband would come
home drunk. At one time when she did sleep over, she was awakened at 10:00 in the evening when Ben
arrived because the couple 'were very noisy in the sala and I had heard something was broken like a vase.'
She said Marivic ran into her room and they locked the door. When Ben couldn't get in he got a chair and a
knife and 'showed us the knife through the window grill and he scared us.' She said that Marivic shouted for
help, but no one came. On cross-examination, she said that when she left Marivic's house on November 15,
1995, the couple were still quarreling.

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

xxx xxx xxx

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

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

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

xxx xxx xxx

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

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

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

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

"9. The body of Ben Genosa was found on November 18, 1995 after an investigation was made of the foul
odor emitting from the Genosa residence. This fact was testified to by all the prosecution witnesses and some
defense witnesses during the trial.
"10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel, Leyte at the time of the
incident, and among her responsibilities as such was to take charge of all medico-legal cases, such as the
examination of cadavers and the autopsy of cadavers. Dra. Cerillo is not a forensic pathologist. She merely
took the medical board exams and passed in 1986. She was called by the police to go to the Genosa residence
and when she got there, she saw 'some police officer and neighbor around.' She saw Ben Genosa, covered
by a blanket, lying in a semi-prone position with his back to the door. He was wearing only a brief.

xxxxxxxxx

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

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

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

"12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and 23 September 1997, 12
November 1997, 15 and 16 December 1997, 22 May 1998, and 5 and 6 August 1998.

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

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

"The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the entry of appearance of
undersigned counsel.

"15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20 January 2000, to the Chief
Justice, coursing the same through Atty. Teresita G. Dimaisip, Deputy Clerk of Court of Chief Judicial Records
Office, wherein she submitted her 'Brief without counsels' to the Court.

"This letter was stamp-received by the Honorable Court on 4 February 2000.

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

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

"17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly granted Marivic's URGENT
OMNIBUS MOTION and remanded the case 'to the trial court for the reception of expert psychological and/or
psychiatric opinion on the 'battered woman syndrome' plea, within ninety (90) days from notice, and, thereafter
to forthwith report to this Court the proceedings taken, together with the copies of the TSN and relevant
documentary evidence, if any, submitted.'

"18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the Hon. Fortunito L.
Madrona, RTC-Branch 35, Ormoc City.

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

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

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

"Dra. Dayan described domestic violence to comprise of 'a lot of incidents of psychological abuse, verbal
abuse, and emotional abuse to physical abuse and also sexual abuse.'

xxx xxx xxx

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

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

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

xxx xxx xxx

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

xxx xxx xxx

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

xxx xxx xxx

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

xxx xxx xxx

"19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed away, appeared and testified
before RTC-Branch 35, Ormoc City.

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

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

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

"Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had already encountered a
suit involving violent family relations, and testified in a case in 1964. In the Armed Forces of the Philippines,
violent family disputes abound, and he has seen probably ten to twenty thousand cases. In those days, the
primordial intention of therapy was reconciliation. As a result of his experience with domestic violence cases,
he became a consultant of the Battered Woman Office in Quezon City under Atty. Nenita Deproza.

"As such consultant, he had seen around forty (40) cases of severe domestic violence, where there is physical
abuse: such as slapping, pushing, verbal abuse, battering and boxing a woman even to an unconscious state
such that the woman is sometimes confined. The affliction of Post-Traumatic Stress Disorder 'depends on the
vulnerability of the victim.' Dr. Pajarillo said that if the victim is not very healthy, perhaps one episode of
violence may induce the disorder; if the psychological stamina and physiologic constitutional stamina of the
victim is stronger, 'it will take more repetitive trauma to precipitate the post-traumatic stress disorder and this
x x x is very dangerous.'

"In psychiatry, the post-traumatic stress disorder is incorporated under the 'anxiety neurosis or neurologic
anxcietism.' It is produced by 'overwhelming brutality, trauma.'

xxx xxx xxx

"Dr. Pajarillo explained that with 'neurotic anxiety', the victim relives the beating or trauma as if it were real,
although she is not actually being beaten at that time. She thinks 'of nothing but the suffering.'

xxx xxx xxx

"A woman who suffers battery has a tendency to become neurotic, her emotional tone is unstable, and she is
irritable and restless. She tends to become hard-headed and persistent. She has higher sensitivity and her
'self-world' is damaged.

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

xxx xxx xxx

"Dr. Pajarillo emphasized that 'even though without the presence of the precipator (sic) or the one who
administered the battering, that re-experiencing of the trauma occurred (sic) because the individual cannot
control it. It will just come up in her mind or in his mind.'

xxx xxx xxx

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

xxx xxx xxx

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

xxx xxx xxx

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

xxx xxx xxx

"20. No rebuttal evidence or testimony was presented by either the private or the public prosecutor. Thus, in
accord with the Resolution of this Honorable Court, the records of the partially re-opened trial a quo were
elevated."9

Ruling of the Trial Court

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

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

Supervening Circumstances

On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this Court allow (1) the exhumation of
Ben Genosa and the reexamination of the cause of his death; (2) the examination of appellant by qualified
psychologists and psychiatrists to determine her state of mind at the time she had killed her spouse; and (3) the
inclusion of the said experts' reports in the records of the case for purposes of the automatic review or, in the
alternative, a partial reopening of the case for the lower court to admit the experts' testimonies.

On September 29, 2000, this Court issued a Resolution granting in part appellant's Motion, remanding the case to the
trial court for the reception of expert psychological and/or psychiatric opinion on the "battered woman syndrome" plea;
and requiring the lower court to report thereafter to this Court the proceedings taken as well as to submit copies of the
TSN and additional evidence, if any.

Acting on the Court's Resolution, the trial judge authorized the examination of Marivic by two clinical psychologists,
Drs. Natividad Dayan10 and Alfredo Pajarillo,11 supposedly experts on domestic violence. Their testimonies, along with
their documentary evidence, were then presented to and admitted by the lower court before finally being submitted to
this Court to form part of the records of the case.12

The Issues

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

"1. The trial court gravely erred in promulgating an obviously hasty decision without reflecting on the evidence
adduced as to self-defense.

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

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

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

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

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

"7. The trial court gravely erred in concluding that there was an aggravating circumstance of treachery.
 "8. The trial court gravely erred in refusing to re-evaluate the traditional elements in determining the existence
of self-defense and defense of foetus in this case, thereby erroneously convicting Marivic Genosa of the crime
of parricide and condemning her to the ultimate penalty of death."13

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

The Court's Ruling

The appeal is partly meritorious.

Collateral Factual Issues

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

In appellant's first six assigned items, we find no grave abuse of discretion, reversible error or misappreciation of
material facts that would reverse or modify the trial court's disposition of the case. In any event, we will now briefly
dispose of these alleged errors of the trial court.

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

Neither do we find the appealed Decision to have been made in an "obviously hasty" manner. The Information had
been filed with the lower court on November 14, 1996. Thereafter, trial began and at least 13 hearings were held for
over a year. It took the trial judge about two months from the conclusion of trial to promulgate his judgment. That he
conducted the trial and resolved the case with dispatch should not be taken against him, much less used to condemn
him for being unduly hasty. If at all, the dispatch with which he handled the case should be lauded. In any case, we
find his actions in substantial compliance with his constitutional obligation.15

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

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

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

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

Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben was a drunk, gambler, womanizer
and wife-beater. Until this case came to us for automatic review, appellant had not raised the novel defense of
"battered woman syndrome," for which such evidence may have been relevant. Her theory of self-defense was then
the crucial issue before the trial court. As will be discussed shortly, the legal requisites of self-defense under prevailing
jurisprudence ostensibly appear inconsistent with the surrounding facts that led to the death of the victim. Hence, his
personal character, especially his past behavior, did not constitute vital evidence at the time.
Fifth, the trial court surely committed no error in not requiring testimony from appellant's children. As correctly
elucidated by the solicitor general, all criminal actions are prosecuted under the direction and control of the public
prosecutor, in whom lies the discretion to determine which witnesses and evidence are necessary to present.20As the
former further points out, neither the trial court nor the prosecution prevented appellant from presenting her children
as witnesses. Thus, she cannot now fault the lower court for not requiring them to testify.

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

First Legal Issue:

Self-Defense and Defense of a Fetus

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

The Battered Woman Syndrome

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

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

Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs about the home, the
family and the female sex role; emotional dependence upon the dominant male; the tendency to accept responsibility
for the batterer's actions; and false hopes that the relationship will improve.26

More graphically, the battered woman syndrome is characterized by the so-called "cycle of violence,"27 which has
three phases: (1) the tension-building phase; (2) the acute battering incident; and (3) the tranquil, loving (or, at least,
nonviolent) phase.28

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

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

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

At this stage, she has a sense of detachment from the attack and the terrible pain, although she may later clearly
remember every detail. Her apparent passivity in the face of acute violence may be rationalized thus: the batterer is
almost always much stronger physically, and she knows from her past painful experience that it is futile to fight back.
Acute battering incidents are often very savage and out of control, such that innocent bystanders or intervenors are
likely to get hurt.30

The final phase of the cycle of violence begins when the acute battering incident ends. During this tranquil period,
the couple experience profound relief. On the one hand, the batterer may show a tender and nurturing behavior
towards his partner. He knows that he has been viciously cruel and tries to make up for it, begging for her forgiveness
and promising never to beat her again. On the other hand, the battered woman also tries to convince herself that the
battery will never happen again; that her partner will change for the better; and that this "good, gentle and caring man"
is the real person whom she loves.

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

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

History of Abuse
in the Present Case

To show the history of violence inflicted upon appellant, the defense presented several witnesses. She herself
described her heart-rending experience as follows:

"ATTY. TABUCANON

Q How did you describe your marriage with Ben Genosa?

A In the first year, I lived with him happily but in the subsequent year he was cruel to me and a behavior of
habitual drinker.

Q You said that in the subsequent year of your marriage, your husband was abusive to you and cruel. In what
way was this abusive and cruelty manifested to you?

A He always provoke me in everything, he always slap me and sometimes he pinned me down on the bed
and sometimes beat me.

Q How many times did this happen?

A Several times already.

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

A I went away to my mother and I ran to my father and we separate each other.

Q What was the action of Ben Genosa towards you leaving home?

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

Q What will happen when he follow you?

A He said he changed, he asked for forgiveness and I was convinced and after that I go to him and he said
'sorry'.

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

A Yes, sir.

Q Who are these doctors?

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

xxx xxx xxx

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

A Yes, sir.
 Q Who inflicted these injuries?

A Of course my husband.

Q You mean Ben Genosa?

A Yes, sir.

xxx xxx xxx

[Court] /to the witness

Q How frequent was the alleged cruelty that you said?

A Everytime he got drunk.

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

A Everytime he got drunk.

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

A Three times a week.

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

A Not necessarily that he would beat me but sometimes he will just quarrel me." 32

Referring to his "Out-Patient Chart"33 on Marivic Genosa at the Philphos Hospital, Dr. Dino D. Caing bolstered her
foregoing testimony on chronic battery in this manner:

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

A Yes, sir.

Q Who prepared the list of six (6) incidents, Doctor?

A I did.

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

A 1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower eyelid and redness of eye. Attending
physician: Dr. Lucero;

2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area, pain and contusion (R) breast.
Attending physician: Dr. Canora;

3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;

4. August 1, 1994 - Pain, mastitis (L) breast, 2o to trauma. Attending physician: Dr. Caing;

5. April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending physician: Dr. Canora; and

6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion Pregnancy. Attending physician: Dr.
Canora.

Q Among the findings, there were two (2) incidents wherein you were the attending physician, is that correct?

A Yes, sir.

Q Did you actually physical examine the accused?

A Yes, sir.
Q Now, going to your finding no. 3 where you were the one who attended the patient. What do you mean by
abrasion furuncle left axilla?

A Abrasion is a skin wound usually when it comes in contact with something rough substance if force is applied.

Q What is meant by furuncle axilla?

A It is secondary of the light infection over the abrasion.

Q What is meant by pain mastitis secondary to trauma?

A So, in this 4th episode of physical injuries there is an inflammation of left breast. So, [pain] meaning there
is tenderness. When your breast is traumatized, there is tenderness pain.

Q So, these are objective physical injuries. Doctor?

xxx xxx xxx

Q Were you able to talk with the patient?

A Yes, sir.

Q What did she tell you?

A As a doctor-patient relationship, we need to know the cause of these injuries. And she told me that it was
done to her by her husband.

Q You mean, Ben Genosa?

A Yes, sir.

xxx xxx xxx

ATTY. TABUCANON:

Q By the way Doctor, were you able to physical examine the accused sometime in the month of November,
1995 when this incident happened?

A As per record, yes.

Q What was the date?

A It was on November 6, 1995.

Q So, did you actually see the accused physically?

A Yes, sir.

Q On November 6, 1995, will you please tell this Honorable Court, was the patient pregnant?

A Yes, sir.

Q Being a doctor, can you more engage at what stage of pregnancy was she?

A Eight (8) months pregnant.

Q So in other words, it was an advance stage of pregnancy?

A Yes, sir.

Q What was your November 6, 1995 examination, was it an examination about her pregnancy or for some
other findings?

A No, she was admitted for hypertension headache which complicates her pregnancy.

Q When you said admitted, meaning she was confined?

 A Yes, sir.

Q For how many days?

A One day.

Q Where?

A At PHILPHOS Hospital.

xxx xxx xxx

Q Lets go back to the clinical history of Marivic Genosa. You said that you were able to examine her personally
on November 6, 1995 and she was 8 months pregnant.

What is this all about?

A Because she has this problem of tension headache secondary to hypertension and I think I have a record
here, also the same period from 1989 to 1995, she had a consultation for twenty-three (23) times.

Q For what?

A Tension headache.

Q Can we say that specially during the latter consultation, that the patient had hypertension?

A The patient definitely had hypertension. It was refractory to our treatment. She does not response when the
medication was given to her, because tension headache is more or less stress related and emotional in nature.

Q What did you deduce of tension headache when you said is emotional in nature?

A From what I deduced as part of our physical examination of the patient is the family history in line of giving
the root cause of what is causing this disease. So, from the moment you ask to the patient all comes from the
domestic problem.

Q You mean problem in her household?

A Probably.

Q Can family trouble cause elevation of blood pressure, Doctor?

A Yes, if it is emotionally related and stressful it can cause increases in hypertension which is unfortunately
does not response to the medication.

Q In November 6, 1995, the date of the incident, did you take the blood pressure of the accused?

A On November 6, 1995 consultation, the blood pressure was 180/120.

Q Is this considered hypertension?

A Yes, sir, severe.

Q Considering that she was 8 months pregnant, you mean this is dangerous level of blood pressure?

A It was dangerous to the child or to the fetus." 34

Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in Isabel, Leyte, testified that he had
seen the couple quarreling several times; and that on some occasions Marivic would run to him with bruises, confiding
that the injuries were inflicted upon her by Ben.35

Ecel Arano also testified36 that for a number of times she had been asked by Marivic to sleep at the Genosa house,
because the latter feared that Ben would come home drunk and hurt her. On one occasion that Ecel did sleep over,
she was awakened about ten o'clock at night, because the couple "were very noisy … and I heard something was
broken like a vase." Then Marivic came running into Ecel's room and locked the door. Ben showed up by the window
grill atop a chair, scaring them with a knife.
On the afternoon of November 15, 1995, Marivic again asked her help -- this time to find Ben -- but they were unable
to. They returned to the Genosa home, where they found him already drunk. Again afraid that he might hurt her,
Marivic asked her to sleep at their house. Seeing his state of drunkenness, Ecel hesitated; and when she heard the
couple start arguing, she decided to leave.

On that same night that culminated in the death of Ben Genosa, at least three other witnesses saw or heard the couple
quarreling.37 Marivic relates in detail the following backdrop of the fateful night when life was snuffed out of him,
showing in the process a vivid picture of his cruelty towards her:

"ATTY. TABUCANON:

Q Please tell this Court, can you recall the incident in November 15, 1995 in the evening?

A Whole morning and in the afternoon, I was in the office working then after office hours, I boarded the service
bus and went to Bilwang. When I reached Bilwang, I immediately asked my son, where was his father, then
my second child said, 'he was not home yet'. I was worried because that was payday, I was anticipating that
he was gambling. So while waiting for him, my eldest son arrived from school, I prepared dinner for my
children.

Q This is evening of November 15, 1995?

A Yes, sir.

Q What time did Ben Genosa arrive?

A When he arrived, I was not there, I was in Isabel looking for him.

Q So when he arrived you were in Isabel looking for him?

A Yes, sir.

Q Did you come back to your house?

A Yes, sir.

Q By the way, where was your conjugal residence situated this time?

A Bilwang.

Q Is this your house or you are renting?

A Renting.

Q What time were you able to come back in your residence at Bilwang?

A I went back around almost 8:00 o'clock.

Q What happened when you arrived in your residence?

A When I arrived home with my cousin Ecel whom I requested to sleep with me at that time because I had
fears that he was again drunk and I was worried that he would again beat me so I requested my cousin to
sleep with me, but she resisted because she had fears that the same thing will happen again last year.

Q Who was this cousin of yours who you requested to sleep with you?

A Ecel Araño, the one who testified.

Q Did Ecel sleep with you in your house on that evening?

A No, because she expressed fears, she said her father would not allow her because of Ben.

Q During this period November 15, 1995, were you pregnant?

A Yes, 8 months.

Q How advance was your pregnancy?

A Eight (8) months.

Q Was the baby subsequently born?

A Yes, sir.

Q What's the name of the baby you were carrying at that time?

A Marie Bianca.

Q What time were you able to meet personally your husband?

A Yes, sir.

Q What time?

A When I arrived home, he was there already in his usual behavior.

Q Will you tell this Court what was his disposition?

A He was drunk again, he was yelling in his usual unruly behavior.

Q What was he yelling all about?

A His usual attitude when he got drunk.

Q You said that when you arrived, he was drunk and yelling at you? What else did he do if any?

A He is nagging at me for following him and he dared me to quarrel him.

Q What was the cause of his nagging or quarreling at you if you know?

A He was angry at me because I was following x x x him, looking for him. I was just worried he might be overly
drunk and he would beat me again.

Q You said that he was yelling at you, what else, did he do to you if any?

A He was nagging at me at that time and I just ignore him because I want to avoid trouble for fear that he will
beat me again. Perhaps he was disappointed because I just ignore him of his provocation and he switch off
the light and I said to him, 'why did you switch off the light when the children were there.' At that time I was
also attending to my children who were doing their assignments. He was angry with me for not answering his
challenge, so he went to the kitchen and [got] a bolo and cut the antenna wire to stop me from watching
television.

Q What did he do with the bolo?

A He cut the antenna wire to keep me from watching T.V.

Q What else happened after he cut the wire?

A He switch off the light and the children were shouting because they were scared and he was already holding
the bolo.

Q How do you described this bolo?

A 1 1/2 feet.

Q What was the bolo used for usually?

A For chopping meat.

Q You said the children were scared, what else happened as Ben was carrying that bolo?

A He was about to attack me so I run to the room.

Q What do you mean that he was about to attack you?

A When I attempt to run he held my hands and he whirled me and I fell to the bedside.

Q So when he whirled you, what happened to you?

A I screamed for help and then he left.

Q You said earlier that he whirled you and you fell on the bedside?

A Yes, sir.

Q You screamed for help and he left, do you know where he was going?

A Outside perhaps to drink more.

Q When he left what did you do in that particular time?

A I packed all his clothes.

Q What was your reason in packing his clothes?

A I wanted him to leave us.

Q During this time, where were your children, what were their reactions?

A After a couple of hours, he went back again and he got angry with me for packing his clothes, then he
dragged me again of the bedroom holding my neck.

Q You said that when Ben came back to your house, he dragged you? How did he drag you?

COURT INTERPRETER:

The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept on shouting at me that 'you might
as well be killed so there will be nobody to nag me.'

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER:

(At this juncture the witness started crying).

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not open it because
he did not have the key then he pulled his wallet which contained a blade about 3 inches long and I was aware
that he was going to kill me and I smashed his arm and then the wallet and the blade fell. The one he used to
open the drawer I saw, it was a pipe about that long, and when he was about to pick-up the wallet and the
 blade, I smashed him then I ran to the other room, and on that very moment everything on my mind was to
pity on myself, then the feeling I had on that very moment was the same when I was admitted in PHILPHOS
Clinic, I was about to vomit.

COURT INTERPRETER:

(The witness at this juncture is crying intensely).

xxx xxx xxx

ATTY. TABUCANON:

Q Talking of drawer, is this drawer outside your room?

A Outside.

Q In what part of the house?

A Dining.

Q Where were the children during that time?

A My children were already asleep.

Q You mean they were inside the room?

A Yes, sir.

Q You said that he dropped the blade, for the record will you please describe this blade about 3 inches long,
how does it look like?

A Three (3) inches long and 1/2 inch wide.

Q Is it a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes, sir, that was the object used when he intimidate me." 38

In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert witness to assist it in understanding
the psyche of a battered person. She had met with Marivic Genosa for five sessions totaling about seventeen hours.
Based on their talks, the former briefly related the latter's ordeal to the court a quo as follows:

"Q: What can you say, that you found Marivic as a battered wife? Could you in layman's term describe to this
Court what her life was like as said to you?

A: What I remember happened then was it was more than ten years, that she was suffering emotional anguish.
There were a lot of instances of abuses, to emotional abuse, to verbal abuse and to physical abuse. The
husband had a very meager income, she was the one who was practically the bread earner of the family. The
husband was involved in a lot of vices, going out with barkadas, drinking, even womanizing being involved in
cockfight and going home very angry and which will trigger a lot of physical abuse. She also had the experience
a lot of taunting from the husband for the reason that the husband even accused her of infidelity, the husband
was saying that the child she was carrying was not his own. So she was very angry, she was at the same time
very depressed because she was also aware, almost like living in purgatory or even hell when it was happening
day in and day out." 39
In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but wittingly or unwittingly put forward,
additional supporting evidence as shown below:

"Q In your first encounter with the appellant in this case in 1999, where you talked to her about three hours,
what was the most relevant information did you gather?

A The most relevant information was the tragedy that happened. The most important information were
escalating abuses that she had experienced during her marital life.

Q Before you met her in 1999 for three hours, we presume that you already knew of the facts of the case or
at least you have substantial knowledge of the facts of the case?

A I believe I had an idea of the case, but I do not know whether I can consider them as substantial.

xxx xxx xxx

Q Did you gather an information from Marivic that on the side of her husband they were fond of battering their
wives?

A I also heard that from her?

Q You heard that from her?

A Yes, sir.

Q Did you ask for a complete example who are the relatives of her husband that were fond of battering their
wives?

A What I remember that there were brothers of her husband who are also battering their wives.

Q Did she not inform you that there was an instance that she stayed in a hotel in Ormoc where her husband
followed her and battered [her] several times in that room?

A She told me about that.

Q Did she inform you in what hotel in Ormoc?

A Sir, I could not remember but I was told that she was battered in that room.

Q Several times in that room?

A Yes, sir. What I remember was that there is no problem about being battered, it really happened.

Q Being an expert witness, our jurisprudence is not complete on saying this matter. I think that is the first time
that we have this in the Philippines, what is your opinion?

A Sir, my opinion is, she is really a battered wife and in this kind happened, it was really a self-defense. I also
believe that there had been provocation and I also believe that she became a disordered person. She had to
suffer anxiety reaction because of all the battering that happened and so she became an abnormal person
who had lost she's not during the time and that is why it happened because of all the physical battering,
emotional battering, all the psychological abuses that she had experienced from her husband.

Q I do believe that she is a battered wife. Was she extremely battered?

A Sir, it is an extreme form of battering. Yes.40

Parenthetically, the credibility of appellant was demonstrated as follows:

"Q And you also said that you administered [the] objective personality test, what x x x [is this] all about?

A The objective personality test is the Millon Clinical Multiaxial Inventory. The purpose of that test is to find
out about the lying prone[ne]ss of the person.

Q What do you mean by that?

A Meaning, am I dealing with a client who is telling me the truth, or is she someone who can exaggerate or x
x x [will] tell a lie[?]
 Q And what did you discover on the basis of this objective personality test?

A She was a person who passed the honesty test. Meaning she is a person that I can trust. That the data that
I'm gathering from her are the truth."41

The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on his Psychiatric Report, 42which
was based on his interview and examination of Marivic Genosa. The Report said that during the first three years of
her marriage to Ben, everything looked good -- the atmosphere was fine, normal and happy -- until "Ben started to be
attracted to other girls and was also enticed in[to] gambling[,] especially cockfighting. x x x. At the same time Ben was
often joining his barkada in drinking sprees."

The drinking sprees of Ben greatly changed the attitude he showed toward his family, particularly to his wife. The
Report continued: "At first, it was verbal and emotional abuses but as time passed, he became physically abusive.
Marivic claimed that the viciousness of her husband was progressive every time he got drunk. It was a painful ordeal
Marivic had to anticipate whenever she suspected that her husband went for a drinking [spree]. They had been married
for twelve years[;] and practically more than eight years, she was battered and maltreated relentlessly and mercilessly
by her husband whenever he was drunk."

Marivic sought the help of her mother-in-law, but her efforts were in vain. Further quoting from the Report, "[s]he also
sought the advice and help of close relatives and well-meaning friends in spite of her feeling ashamed of what was
happening to her. But incessant battering became more and more frequent and more severe. x x x."43

From the totality of evidence presented, there is indeed no doubt in the Court's mind that Appellant Marivic Genosa
was a severely abused person.

Effect of Battery on Appellant

Because of the recurring cycles of violence experienced by the abused woman, her state of mind metamorphoses. In
determining her state of mind, we cannot rely merely on the judgment of an ordinary, reasonable person who is
evaluating the events immediately surrounding the incident. A Canadian court has aptly pointed out that expert
evidence on the psychological effect of battering on wives and common law partners are both relevant and necessary.
"How can the mental state of the appellant be appreciated without it? The average member of the public may ask:
Why would a woman put up with this kind of treatment? Why should she continue to live with such a man? How could
she love a partner who beat her to the point of requiring hospitalization? We would expect the woman to pack her
bags and go. Where is her self-respect? Why does she not cut loose and make a new life for herself? Such is the
reaction of the average person confronted with the so-called 'battered wife syndrome.'"44

To understand the syndrome properly, however, one's viewpoint should not be drawn from that of an ordinary,
reasonable person. What goes on in the mind of a person who has been subjected to repeated, severe beatings may
not be consistent with -- nay, comprehensible to -- those who have not been through a similar experience. Expert
opinion is essential to clarify and refute common myths and misconceptions about battered women.45

The theory of BWS formulated by Lenore Walker, as well as her research on domestic violence, has had a significant
impact in the United States and the United Kingdom on the treatment and prosecution of cases, in which a battered
woman is charged with the killing of her violent partner. The psychologist explains that the cyclical nature of the
violence inflicted upon the battered woman immobilizes the latter's "ability to act decisively in her own interests, making
her feel trapped in the relationship with no means of escape."46 In her years of research, Dr. Walker found that "the
abuse often escalates at the point of separation and battered women are in greater danger of dying then."47

Corroborating these research findings, Dra. Dayan said that "the battered woman usually has a very low opinion of
herself. She has x x x self-defeating and self-sacrificing characteristics. x x x [W]hen the violence would happen, they
usually think that they provoke[d] it, that they were the one[s] who precipitated the violence[; that] they provoke[d] their
spouse to be physically, verbally and even sexually abusive to them."48

According to Dra. Dayan, there are a lot of reasons why a battered woman does not readily leave an abusive partner
-- poverty, self-blame and guilt arising from the latter's belief that she provoked the violence, that she has an obligation
to keep the family intact at all cost for the sake of their children, and that she is the only hope for her spouse to
change.49

The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had previously testified in suits involving
violent family relations, having evaluated "probably ten to twenty thousand" violent family disputes within the Armed
Forces of the Philippines, wherein such cases abounded. As a result of his experience with domestic violence cases,
he became a consultant of the Battered Woman Office in Quezon City. As such, he got involved in about forty (40)
cases of severe domestic violence, in which the physical abuse on the woman would sometimes even lead to her loss
of consciousness.50

Dr. Pajarillo explained that "overwhelming brutality, trauma" could result in posttraumatic stress disorder, a form of
"anxiety neurosis or neurologic anxietism."51 After being repeatedly and severely abused, battered persons "may
believe that they are essentially helpless, lacking power to change their situation. x x x [A]cute battering incidents can
have the effect of stimulating the development of coping responses to the trauma at the expense of the victim's ability
to muster an active response to try to escape further trauma. Furthermore, x x x the victim ceases to believe that
anything she can do will have a predictable positive effect."52

A study53 conducted by Martin Seligman, a psychologist at the University of Pennsylvania, found that "even if a person
has control over a situation, but believes that she does not, she will be more likely to respond to that situation with
coping responses rather than trying to escape." He said that it was the cognitive aspect -- the individual's thoughts --
that proved all-important. He referred to this phenomenon as "learned helplessness." "[T]he truth or facts of a situation
turn out to be less important than the individual's set of beliefs or perceptions concerning the situation. Battered women
don't attempt to leave the battering situation, even when it may seem to outsiders that escape is possible, because
they cannot predict their own safety; they believe that nothing they or anyone else does will alter their terrible
circumstances."54

Thus, just as the battered woman believes that she is somehow responsible for the violent behavior of her partner,
she also believes that he is capable of killing her, and that there is no escape.55 Battered women feel unsafe, suffer
from pervasive anxiety, and usually fail to leave the relationship.56 Unless a shelter is available, she stays with her
husband, not only because she typically lacks a means of self-support, but also because she fears that if she leaves
she would be found and hurt even more.57

In the instant case, we meticulously scoured the records for specific evidence establishing that appellant, due to the
repeated abuse she had suffered from her spouse over a long period of time, became afflicted with the battered
woman syndrome. We, however, failed to find sufficient evidence that would support such a conclusion. More
specifically, we failed to find ample evidence that would confirm the presence of the essential characteristics of BWS.

The defense fell short of proving all three phases of the "cycle of violence" supposedly characterizing the relationship
of Ben and Marivic Genosa. No doubt there were acute battering incidents. In relating to the court a quo how the fatal
incident that led to the death of Ben started, Marivic perfectly described the tension-building phase of the cycle. She
was able to explain in adequate detail the typical characteristics of this stage. However, that single incident does not
prove the existence of the syndrome. In other words, she failed to prove that in at least another battering episode in
the past, she had gone through a similar pattern.

How did the tension between the partners usually arise or build up prior to acute battering? How did Marivic normally
respond to Ben's relatively minor abuses? What means did she employ to try to prevent the situation from developing
into the next (more violent) stage?

Neither did appellant proffer sufficient evidence in regard to the third phase of the cycle. She simply mentioned that
she would usually run away to her mother's or father's house;58 that Ben would seek her out, ask for her forgiveness
and promise to change; and that believing his words, she would return to their common abode.

Did she ever feel that she provoked the violent incidents between her and her spouse? Did she believe that she was
the only hope for Ben to reform? And that she was the sole support of his emotional stability and well-being?
Conversely, how dependent was she on him? Did she feel helpless and trapped in their relationship? Did both of them
regard death as preferable to separation?

In sum, the defense failed to elicit from appellant herself her factual experiences and thoughts that would clearly and
fully demonstrate the essential characteristics of the syndrome.

The Court appreciates the ratiocinations given by the expert witnesses for the defense. Indeed, they were able to
explain fully, albeit merely theoretically and scientifically, how the personality of the battered woman usually evolved
or deteriorated as a result of repeated and severe beatings inflicted upon her by her partner or spouse. They
corroborated each other's testimonies, which were culled from their numerous studies of hundreds of actual
cases. However, they failed to present in court the factual experiences and thoughts that appellant had related to
them -- if at all -- based on which they concluded that she had BWS.

We emphasize that in criminal cases, all the elements of a modifying circumstance must be proven in order to be
appreciated. To repeat, the records lack supporting evidence that would establish all the essentials of the battered
woman syndrome as manifested specifically in the case of the Genosas.

BWS as Self-Defense

In any event, the existence of the syndrome in a relationship does not in itself establish the legal right of the woman
to kill her abusive partner. Evidence must still be considered in the context of self-defense.59

From the expert opinions discussed earlier, the Court reckons further that crucial to the BWS defense is the state of
mind of the battered woman at the time of the offense60 -- she must have actually feared imminent harm from her
batterer and honestly believed in the need to kill him in order to save her life.
Settled in our jurisprudence, however, is the rule that the one who resorts to self-defense must face a real threat on
one's life; and the peril sought to be avoided must be imminent and actual, not merely imaginary.61 Thus, the Revised
Penal Code provides the following requisites and effect of self-defense:62

"Art. 11. Justifying circumstances. -- The following do not incur any criminal liability:

"1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur;

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself."

Unlawful aggression is the most essential element of self-defense.63 It presupposes actual, sudden and unexpected
attack -- or an imminent danger thereof -- on the life or safety of a person.64 In the present case, however, according
to the testimony of Marivic herself, there was a sufficient time interval between the unlawful aggression of Ben and
her fatal attack upon him. She had already been able to withdraw from his violent behavior and escape to their
children's bedroom. During that time, he apparently ceased his attack and went to bed. The reality or even the
imminence of the danger he posed had ended altogether. He was no longer in a position that presented an actual
threat on her life or safety.

Had Ben still been awaiting Marivic when she came out of their children's bedroom -- and based on past violent
incidents, there was a great probability that he would still have pursued her and inflicted graver harm -- then, the
imminence of the real threat upon her life would not have ceased yet. Where the brutalized person is already suffering
from BWS, further evidence of actual physical assault at the time of the killing is not required. Incidents of domestic
battery usually have a predictable pattern. To require the battered person to await an obvious, deadly attack before
she can defend her life "would amount to sentencing her to 'murder by installment.'"65 Still, impending danger (based
on the conduct of the victim in previous battering episodes) prior to the defendant's use of deadly force must be shown.
Threatening behavior or communication can satisfy the required imminence of danger.66 Considering such
circumstances and the existence of BWS, self-defense may be appreciated.

We reiterate the principle that aggression, if not continuous, does not warrant self-defense.67 In the absence of such
aggression, there can be no self-defense -- complete or incomplete -- on the part of the victim.68 Thus, Marivic's killing
of Ben was not completely justified under the circumstances.

Mitigating Circumstances Present

In any event, all is not lost for appellant. While she did not raise any other modifying circumstances that would alter
her penalty, we deem it proper to evaluate and appreciate in her favor circumstances that mitigate her criminal liability.
It is a hornbook doctrine that an appeal in a criminal case opens it wholly for review on any issue, including that which
has not been raised by the parties.69

From several psychological tests she had administered to Marivic, Dra. Dayan, in her Psychological Evaluation Report
dated November 29, 2000, opined as follows:

"This is a classic case of a Battered Woman Syndrome. The repeated battering Marivic experienced with her
husband constitutes a form of [cumulative] provocation which broke down her psychological resistance and
natural self-control. It is very clear that she developed heightened sensitivity to sight of impending danger her
husband posed continuously. Marivic truly experienced at the hands of her abuser husband a state of
psychological paralysis which can only be ended by an act of violence on her part." 70

Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect of "repetitious pain taking, repetitious
battering, [and] repetitious maltreatment" as well as the severity and the prolonged administration of the battering is
posttraumatic stress disorder.71 Expounding thereon, he said:

"Q What causes the trauma, Mr. Witness?

A What causes the trauma is probably the repetitious battering. Second, the severity of the battering. Third,
the prolonged administration of battering or the prolonged commission of the battering and the psychological
and constitutional stamina of the victim and another one is the public and social support available to the victim.
If nobody is interceding, the more she will go to that disorder....

xxx xxx xxx

Q You referred a while ago to severity. What are the qualifications in terms of severity of the postraumatic
stress disorder, Dr. Pajarillo?
 A The severity is the most severe continuously to trig[g]er this post[t]raumatic stress disorder is injury to the
head, banging of the head like that. It is usually the very very severe stimulus that precipitate this
post[t]raumatic stress disorder. Others are suffocating the victim like holding a pillow on the face, strangulating
the individual, suffocating the individual, and boxing the individual. In this situation therefore, the victim is
heightened to painful stimulus, like for example she is pregnant, she is very susceptible because the woman
will not only protect herself, she is also to protect the fetus. So the anxiety is heightened to the end [sic] degree.

Q But in terms of the gravity of the disorder, Mr. Witness, how do you classify?

A We classify the disorder as [acute], or chronic or delayed or [a]typical.

Q Can you please describe this pre[-]classification you called delayed or [atypical]?

A The acute is the one that usually require only one battering and the individual will manifest now a severe
emotional instability, higher irritability remorse, restlessness, and fear and probably in most [acute] cases the
first thing will be happened to the individual will be thinking of suicide.

Q And in chronic cases, Mr. Witness?

A The chronic cases is this repetitious battering, repetitious maltreatment, any prolonged, it is longer than six
(6) months. The [acute] is only the first day to six (6) months. After this six (6) months you become chronic. It
is stated in the book specifically that after six (6) months is chronic. The [a]typical one is the repetitious
battering but the individual who is abnormal and then become normal. This is how you get neurosis from
neurotic personality of these cases of post[t]raumatic stress disorder." 72

Answering the questions propounded by the trial judge, the expert witness clarified further:

"Q But just the same[,] neurosis especially on battered woman syndrome x x x affects x x x his or her mental
capacity?

A Yes, your Honor.

Q As you were saying[,] it x x x obfuscated her rationality?

A Of course obfuscated."73

In sum, the cyclical nature and the severity of the violence inflicted upon appellant resulted in "cumulative provocation
which broke down her psychological resistance and natural self-control," "psychological paralysis," and "difficulty in
concentrating or impairment of memory."

Based on the explanations of the expert witnesses, such manifestations were analogous to an illness that diminished
the exercise by appellant of her will power without, however, depriving her of consciousness of her acts. There was,
thus, a resulting diminution of her freedom of action, intelligence or intent. Pursuant to paragraphs 9 74 and 1075 of
Article 13 of the Revised Penal Code, this circumstance should be taken in her favor and considered as a mitigating
factor. 76

In addition, we also find in favor of appellant the extenuating circumstance of having acted upon an impulse so
powerful as to have naturally produced passion and obfuscation. It has been held that this state of mind is present
when a crime is committed as a result of an uncontrollable burst of passion provoked by prior unjust or improper acts
or by a legitimate stimulus so powerful as to overcome reason.77 To appreciate this circumstance, the following
requisites should concur: (1) there is an act, both unlawful and sufficient to produce such a condition of mind; and (2)
this act is not far removed from the commission of the crime by a considerable length of time, during which the accused
might recover her normal equanimity.78

Here, an acute battering incident, wherein Ben Genosa was the unlawful aggressor, preceded his being killed by
Marivic. He had further threatened to kill her while dragging her by the neck towards a cabinet in which he had kept a
gun. It should also be recalled that she was eight months pregnant at the time. The attempt on her life was likewise
on that of her fetus.79 His abusive and violent acts, an aggression which was directed at the lives of both Marivic and
her unborn child, naturally produced passion and obfuscation overcoming her reason. Even though she was able to
retreat to a separate room, her emotional and mental state continued. According to her, she felt her blood pressure
rise; she was filled with feelings of self-pity and of fear that she and her baby were about to die. In a fit of indignation,
she pried open the cabinet drawer where Ben kept a gun, then she took the weapon and used it to shoot him.

The confluence of these events brings us to the conclusion that there was no considerable period of time within which
Marivic could have recovered her normal equanimity. Helpful is Dr. Pajarillo's testimony80 that with "neurotic anxiety"
-- a psychological effect on a victim of "overwhelming brutality [or] trauma" -- the victim relives the beating or trauma
as if it were real, although she is not actually being beaten at the time. She cannot control "re-experiencing the whole
thing, the most vicious and the trauma that she suffered." She thinks "of nothing but the suffering." Such reliving which
is beyond the control of a person under similar circumstances, must have been what Marivic experienced during the
brief time interval and prevented her from recovering her normal equanimity. Accordingly, she should further be
credited with the mitigating circumstance of passion and obfuscation.

It should be clarified that these two circumstances -- psychological paralysis as well as passion and obfuscation -- did
not arise from the same set of facts.

On the one hand, the first circumstance arose from the cyclical nature and the severity of the battery inflicted by the
batterer-spouse upon appellant. That is, the repeated beatings over a period of time resulted in her psychological
paralysis, which was analogous to an illness diminishing the exercise of her will power without depriving her of
consciousness of her acts.

The second circumstance, on the other hand, resulted from the violent aggression he had inflicted on her prior to the
killing. That the incident occurred when she was eight months pregnant with their child was deemed by her as an
attempt not only on her life, but likewise on that of their unborn child. Such perception naturally produced passion and
obfuscation on her part.

Second Legal Issue:

Treachery

There is treachery when one commits any of the crimes against persons by employing means, methods or forms in
the execution thereof without risk to oneself arising from the defense that the offended party might make.81 In order to
qualify an act as treacherous, the circumstances invoked must be proven as indubitably as the killing itself; they cannot
be deduced from mere inferences, or conjectures, which have no place in the appreciation of evidence.82 Because of
the gravity of the resulting offense, treachery must be proved as conclusively as the killing itself.83

Ruling that treachery was present in the instant case, the trial court imposed the penalty of death upon appellant. It
inferred this qualifying circumstances merely from the fact that the lifeless body of Ben had been found lying in bed
with an "open, depressed, circular" fracture located at the back of his head. As to exactly how and when he had been
fatally attacked, however, the prosecution failed to establish indubitably. Only the following testimony of appellant
leads us to the events surrounding his death:

"Q You said that when Ben came back to your house, he dragged you? How did he drag you?

COURT:

The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)

A And he dragged me towards the door backward.

ATTY. TABUCANON:

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept on shouting at me that 'you might
as well be killed so there will be nobody to nag me'

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

COURT INTERPRETER

(At this juncture the witness started crying)

ATTY. TABUCANON:

Q Were you actually brought to the drawer?

A Yes, sir.

Q What happened when you were brought to that drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not open it because
he did not have the key then he pulled his wallet which contained a blade about 3 inches long and I was aware
that he was going to kill me and I smashed his arm and then the wallet and the blade fell. The one he used to
open the drawer I saw, it was a pipe about that long, and when he was about to pick-up the wallet and the
blade, I smashed him then I ran to the other room, and on that very moment everything on my mind was to
pity on myself, then the feeling I had on that very moment was the same when I was admitted in PHILPHOS
Clinic, I was about to vomit.

COURT INTERPRETER

(The witness at this juncture is crying intensely).

xxx xxx xxx

Q You said that he dropped the blade, for the record will you please describe this blade about 3 inches long,
how does it look like?

A Three (3) inches long and ½ inch wide.

Q It is a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes, sir, that was the object used when he intimidate me.

xxx xxx xxx

ATTY. TABUCANON:

Q You said that this blade fell from his grip, is it correct?

A Yes, because I smashed him.

Q What happened?

A Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I smashed him and I ran to the other
room.

Q What else happened?

A When I was in the other room, I felt the same thing like what happened before when I was admitted in
PHILPHOS Clinic, I was about to vomit. I know my blood pressure was raised. I was frightened I was about to
die because of my blood pressure.

COURT INTERPRETER:

(Upon the answer of the witness getting the pipe and smashed him, the witness at the same time
pointed at the back of her neck or the nape).

ATTY. TABUCANON:

Q You said you went to the room, what else happened?

A Considering all the physical sufferings that I've been through with him, I took pity on myself and I felt I was
about to die also because of my blood pressure and the baby, so I got that gun and I shot him.

COURT
 /to Atty. Tabucanon

Q You shot him?

A Yes, I distorted the drawer."84

The above testimony is insufficient to establish the presence of treachery. There is no showing of the victim's position
relative to appellant's at the time of the shooting. Besides, equally axiomatic is the rule that when a killing is preceded
by an argument or a quarrel, treachery cannot be appreciated as a qualifying circumstance, because the deceased
may be said to have been forewarned and to have anticipated aggression from the assailant.85

Moreover, in order to appreciate alevosia, the method of assault adopted by the aggressor must have been
consciously and deliberately chosen for the specific purpose of accomplishing the unlawful act without risk from any
defense that might be put up by the party attacked.86 There is no showing, though, that the present appellant
intentionally chose a specific means of successfully attacking her husband without any risk to herself from any
retaliatory act that he might make. To the contrary, it appears that the thought of using the gun occurred to her only
at about the same moment when she decided to kill her batterer-spouse. In the absence of any convincing proof that
she consciously and deliberately employed the method by which she committed the crime in order to ensure its
execution, this Court resolves the doubt in her favor.87

Proper Penalty

The penalty for parricide imposed by Article 246 of the Revised Penal Code is reclusion perpetua to death. Since two
mitigating circumstances and no aggravating circumstance have been found to have attended the commission of the
offense, the penalty shall be lowered by one (1) degree, pursuant to Article 64 of paragraph 5 88 of the same
Code.89 The penalty of reclusion temporal in its medium period is imposable, considering that two mitigating
circumstances are to be taken into account in reducing the penalty by one degree, and no other modifying
circumstances were shown to have attended the commission of the offense.90 Under the Indeterminate Sentence Law,
the minimum of the penalty shall be within the range of that which is next lower in degree -- prision mayor -- and the
maximum shall be within the range of the medium period of reclusion temporal.

Considering all the circumstances of the instant case, we deem it just and proper to impose the penalty of prision
mayor in its minimum period, or six (6) years and one (1) day in prison as minimum; to reclusion temporal in its medium
period, or 14 years 8 months and 1 day as maximum. Noting that appellant has already served the minimum period,
she may now apply for and be released from detention on parole.91

Epilogue

Being a novel concept in our jurisprudence, the battered woman syndrome was neither easy nor simple to analyze
and recognize vis-à-vis the given set of facts in the present case. The Court agonized on how to apply the theory as
a modern-day reality. It took great effort beyond the normal manner in which decisions are made -- on the basis of
existing law and jurisprudence applicable to the proven facts. To give a just and proper resolution of the case, it
endeavored to take a good look at studies conducted here and abroad in order to understand the intricacies of the
syndrome and the distinct personality of the chronically abused person. Certainly, the Court has learned much. And
definitely, the solicitor general and appellant's counsel, Atty. Katrina Legarda, have helped it in such learning process.

While our hearts empathize with recurrently battered persons, we can only work within the limits of law, jurisprudence
and given facts. We cannot make or invent them. Neither can we amend the Revised Penal Code. Only Congress, in
its wisdom, may do so.

The Court, however, is not discounting the possibility of self-defense arising from the battered woman syndrome. We
now sum up our main points. First, each of the phases of the cycle of violence must be proven to have characterized
at least two battering episodes between the appellant and her intimate partner. Second, the final acute battering
episode preceding the killing of the batterer must have produced in the battered person's mind an actual fear of an
imminent harm from her batterer and an honest belief that she needed to use force in order to save her life. Third, at
the time of the killing, the batterer must have posed probable -- not necessarily immediate and actual -- grave harm
to the accused, based on the history of violence perpetrated by the former against the latter. Taken altogether, these
circumstances could satisfy the requisites of self-defense. Under the existing facts of the present case, however, not
all of these elements were duly established.

WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED. However, there being
two (2) mitigating circumstances and no aggravating circumstance attending her commission of the offense, her
penalty is REDUCED to six (6) years and one (1) day of prision mayor as minimum; to 14 years, 8 months and 1 day
of reclusion temporal as maximum.

Inasmuch as appellant has been detained for more than the minimum penalty hereby imposed upon her, the director
of the Bureau of Corrections may immediately RELEASE her from custody upon due determination that she is eligible
for parole, unless she is being held for some other lawful cause. Costs de oficio.
SO ORDERED.

Puno, Carpio, Corona, Carpio-Morales, Callejo, Sr., Azcuna and Tinga, JJ., concur.
Davide, Jr., C.J., Sandoval-Gutierrez, and Austria-Martinez, JJ., join Justice Santiago in her dissent.
Vitug and Quisumbing JJ., in the result.
Ynares-Santiago J., see dissenting opinion.

DISSENTING OPINION

YNARES-SANTIAGO, J.:

In convicting Marivic Genosa of the crime of parricide, our esteemed colleague Mr. Justice Artemio V. Panganiban
found that there was no factual basis to conclude that Marivic was suffering from "Battered Woman Syndrome" (BWS)
at the time she took the life of her husband. With due respect, I register my dissent.

The novel theory of "Battered Woman Syndrome" is recognized in foreign jurisprudence as a form of self-defense. It
operates upon the premise that a woman who has been cyclically abused and controlled over a period of time develops
a fearful state of mind. Living in constant danger of harm or death, she knows that future beatings are almost certain
to occur and will escalate over time. Her intimate knowledge of the violent nature of her batterer makes her alert to
when a particular attack is forthcoming, and when it will seriously threaten her survival. Trapped in a cycle of violence
and constant fear, it is not unlikely that she would succumb to her helplessness and fail to perceive possible solutions
to the problem other than to injure or kill her batterer. She is seized by fear of an existing or impending lethal
aggression and thus would have no opportunity beforehand to deliberate on her acts and to choose a less fatal means
of eliminating her sufferings.1

As exhaustively discussed in the ponencia, the "Battered Woman Syndrome" has three phases, to wit: (1) the tension-
building phase, where minor batterings in the form of verbal or slight physical abuse occurs. Here, the woman tries to
pacify the batterer through a show of kind, nurturing behavior; or by simply staying out of his way; (2) the acute
battering incident phase which is characterized by brutality, destructiveness and sometimes, death. The battered
woman usually realizes that she cannot reason with him and that resistance would only exacerbate her condition; and
(3) the tranquil period, where the couple experience a compound relief and the batterer may show a tender and
nurturing behavior towards his partner.

Contrary to the findings in the ponencia, the defense was able to establish the occurrence on more than one occasion
of the "tension-building phase" of the cycle. The various testimonies of appellant's witnesses clearly reveal that she
knew exactly when she would once again be subjected to acute battery. Her cousin, Ecel Arano, testified that she
often asked the latter to sleep in her house as she was afraid every time her husband came home drunk. Clearly,
whenever appellant requested for Arano's company, she was experiencing a tension-building phase. The barangay
captain, Panfilo Tero, also testified that appellant sought his help two months before she killed her husband, again
demonstrating that she was in the tension-building phase and was attempting to prevent another incident of acute
battery. Appellant presented evidence to prove that the tension-building phase would occur whenever her husband
would go out looking for other women, would lose at cockfights or would come home drunk. She often tried to ignore
her husband's attitude or, as testified to by some witnesses for the prosecution, even shouted back, fought off or even
injured her husband during the tension-building phase, if only to prevent the onset of acute battery.

Appellant was able to perfectly describe the tension-building phase of the cycle immediately prior to the death of her
husband, i.e., when she knew or felt that she was going to be killed by the deceased. She could not possibly have
testified with clarity as to prior tension-building phases in the cycle as she had never tried to kill her husband before
this time.

It was shown by the testimonies of appellant and even witnesses for the prosecution that appellant would seek shelter
in her mother's or her father's house after an acute battering incident, after which would begin the process of begging
for forgiveness, promises of change in behavior and return to the conjugal home, only for the same cycle to begin all
over again.

To require appellant to prove the state of mind of the deceased, as seems to be required in the ponencia, would mean
that no person would ever be able to prove self-defense in a battered woman case. Appellant could not possibly prove
whether the deceased felt provoked into battering by any act or omission of appellant. She cannot possibly prove that
she felt herself to be the sole support of the deceased's emotional stability and well-being. Nevertheless, appellant
felt trapped and helpless in the relationship as, in the end, she resorted to killing her husband as no one could or did
help her, whether out of fear or insensitivity, during the violent marriage she endured.

The "acute battering incident stage" was well demonstrated by the severe beatings suffered by Marivic in the hands
of the deceased as well as the threats to kill her using a bolo or a cutter.2 The physical abuses occurred at least 3
times a week in the 11 miserable years of their marriage,3 six incidents of which were documented by the 1990-1995
medical records of Marivic. They included, among others, hematoma, contusion, and pain on the breasts; multiple
contusions and trauma on the different parts of her body even during her pregnancy in 1995.4The tranquil period
underwent by Marivic was shown by the repeated "kiss and make-up" episodes of their relationship. On more than 5
occasions, Marivic ran to her parents' house after violent fights with the deceased only to forgive the latter every time
he would fetch her and promise to change.5

All these recurring phases of cycle of violence, repentance and forgiveness developed a trauma in the mind of Marivic
making her believe that a forthcoming attack from the deceased would cause her death. This state of mind of Marivic
was revealed in her testimony given way back in 1998, before she was examined by experts on BWS. Unaware of
the significance of her declarations, she candidly narrated how she felt immediately before she killed the deceased,
thus -

ATTY. TABUCANON

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

xxx xxx xxx

Q What happened when you were brought to the drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not open it because
he did not have the key. [T]hen he pulled his wallet which contained a blade about 3 inches long and I was
aware that he was going to kill me and I smashed his arm and then the wallet and the blade fell. The one he
used to open the drawer I saw, it was a pipe about that long, and when he was about to pick-up the wallet and
the blade, I smashed him then I ran to the room, and on that very moment everything on my mind was pity on
myself, then the feeling I had on that very moment was the same when I was admitted in PHILPHOS Clinic, I
was about to vomit.

xxx xxx xxx6

Q What else happened?

A When I was in the room, I felt the same thing like what happened before I was admitted in PHILPHOS Clinic,
I was about to vomit. I know my blood pressure has raised. I was frightened I was about to die because of my
blood pressure.

xxx xxx xxx

A Considering all the physical sufferings that I've been through him, I took pity on myself and I felt I was about
to die also because of my blood pressure and the baby, so I got the gun and shot him.7

It must be stressed that the defense of "Battered Woman Syndrome" was not raised by Marivic before the lower court
but only here on automatic review. This makes the foregoing testimony more worthy of great weight and credence
considering that the same could not have been cunningly given to suit or conform to the profile of a battered woman.

Moreover, there was indeed basis for Marivic to fear death because of her medical history. Dr. Dino Caing testified
that he treated Marivic for hypertension due to domestically related emotional stress on 23 separate occasions. The
latest one was on November 6, 1995 when she suffered from severe hypertension and had a blood pressure of
180/120 on the 8th month of her pregnancy.8

Furthermore, Dr. Natividad A. Dayan, a clinical psychologist and an expert on BWS who examined Marivic, assessed
the effects of the repeated violence on the latter as follows:

A What I remember ... was it was more than ten years that she was suffering from emotional anguish. There
were a lot of instance of abuses, ... emotional abuse...verbal abuse and... physical abuse. The husband had
very meager income, she was the one who was practically the bread earner of the family. The husband was
involved in a lot of vices, going out with barkadas, drinking, even womanizing, being involved in cockfighting
and in going home very angry which... triggered a lot of physical abuse. She also had the experience of
taunting from the husband for the reason that the husband even accused her of infidelity, the husband was
saying that the child she was carrying was not his own. So she was very angry, she was at the same time very
depressed because she .. .[felt] almost like living in purgatory or even in hell when it was happening day in
and day out.
 xxx xxx xxx

Q And what was it that triggered ... that tragedy in your opinion?

A I think for several weeks, she was already having all those tensions, all those anxieties, they were not
enough, that the husband was even going to cockfighting x x x

A She was angry with him, he was angry with her and I think he dragged her and even spun her around. She
tried to fight him so there was a lot of fight and when she was able to escape, she went to another room and
she locked herself with the children. And when the husband was for a while very angry he calms down then
and then (sic). But I remember before that the husband was looking for the gun and I think he was not able to
open the cabinet because she had the key. So during that time, I remember, that she was very much afraid of
him, so when the husband calmed down and he was asleep, all she was concerned was to end up her misery,
to save her child which she was carrying and to save her two children. I believe that somehow she's not
rational.9

xxx xxx xxx

PROS. TRUYA

Q Mrs. Witness, being an expert witness, giving more the facts and circumstances on this case that the books
you studied in the expertise in line and in the 77 hour contact with appellant Mrs. Genosa, could you say that
this is not ordinary self-defense but a survival on her part?

A Yes, sir.

Q To what she did to her husband (sic)?

A Yes, sir this is not an ordinary self-defense, but this [is] a need to survive, a need to survive with her two
sons and [the] child she's bringing.

Q Had she not able to kill her husband, would she still be in the very short moment with the victim (sic)?

A If she did not do that she believes that she will be the one who would be killed.10

There is no doubt therefore that Marivic was afflicted with the "Battered Woman Syndrome" and that it was an
apprehension of death and the instinct to defend her and her unborn child's life that drove her to kill her husband.

The ponente further refused to sustain the self-defense proffered by Marivic because there was allegedly no
aggression or danger posed on her life by the victim at the time she attacked the latter. Again, I beg to disagree.

Traditionally, in order that self-defense may be appreciated, the unlawful aggression or the attack must be imminent
and actually in existence. This interpretation must, however, be re-evaluated vis-a-vis the recognized inherent
characteristic of the psyche of a person afflicted with the "Battered Woman Syndrome." As previously discussed,
women afflicted by this syndrome live in constant fear for their life and thus respond in self-defense. Once BWS and
an impending danger based on the conduct of the deceased in previous battering episodes are established, actual
occurrence of an assault is no longer a condition sine qua non before self defense may be upheld. Threatening
behavior or communication can satisfy the required imminence of danger. As stated in the ponencia, to require the
battered person to await an obvious deadly attack before she can defend her life would amount to sentencing her to
murder by installment.

In the case at bar, the cycle of violence perpetrated by the deceased, which culminated in the physical assaults and
an attempt to shoot Marivic when she was 8 months pregnant, took the place of unlawful aggression, thus entitling
her to a complete self defense even if there was no actual employment of violence by the deceased at the time of the
killing. Marivic had every reason to believe that the deceased would kill her that night not only because the latter was
verbally threatening to kill her while attempting to get a gun from the drawer, but more importantly because the
deceased wounded her on the wrist with a bolo, and because of the deceased's previous conduct of threatening to
cut her throat with a cutter which he kept in his wallet. Quoted hereunder are the relevant testimonies of Marivic -

A When I arrived home, he was already in his usual behavior.

xxx xxx xxx

A He was drunk again, he was yelling in his usual unruly behavior.

xxx xxx xxx

A He was nagging ... me at that time and I just ignore[d] him because I want to avoid trouble for fear that he
will beat me again. Perhaps he was disappointed because I just ignore[d] hi[s] provocation and he switch off
the light and I said to him, "why did you switch off the light when the children were there." At that time I was
also attending to my children who were doing their assignments. He was angry with me for not answering his
challenge, so he went to the kitchen and g[o]t a bolo and cut the antenna wire to stop me from watching
television.

xxx xxx xxx

A He switch[ed] off the light and the children were shouting because they were scared and he was already
holding a bolo.

Q How do you describe this bolo?

A 1 1/2 feet.

xxx xxx xxx

Q You said the children were scared, what else happened as Ben was carrying that bolo?

A He was about to attack me so I ran to the room.

Q What do you mean that he was about to attack you?

A When I attempted] to run he held my hands and he whirled me and I fell [on] the bedside.11

xxx xxx xxx

COURT

To the witness

xxx xxx xxx

Q The bolo that you said which Ben was holding at that time, [was] it a bolo or a knife?

A Bolo.

Q Were you wounded or were there inflictions on your body when he was holding and trying to frighten you
[with] that bolo?

A No, only here.

COURT INTERPRETER

(The witness pointed to her wrist).

COURT

To the witness

Q You were demonstrating a motion, whirling, did your husband really whirl you?

A Yes, your Honor.

Q How did he whirl you?

A Whirled around.

Q Just like spinning.

xxx xxx xxx

Q Where did he whirl you, was it inside the bedroom or outside?

A In our bedroom.
Q Then after the whirling what happened?

A He kicked my ass and then I screamed.12

xxx xxx xxx

Q You screamed for help and he left, do you know where he was going?

A Outside perhaps to drink more.

Q When he left what did you do...?

A I packed all his clothes.

Q What was your reason in packing his clothes?

A I wanted him to leave us.13

A I was frightened that my husband would hurt me, so I packed all his things then on the following day I will
leave, I was afraid and I want to make sure I would deliver my baby safely.14

xxx xxx xxx

A After a couple of hours, he went back again and got angry with me for packing his clothes, then he dragged
me again outside of the bedroom holding my neck.

ATTY. TABUCANON

Q You said that when Ben came back to your house, he dragged you? How did he drag... you?

COURT INTERPRETER

(The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)

A And he dragged me towards the door backwards.

ATTY. TABUCANON

Q Where did he bring you?

A Outside the bedroom and he wanted to get something and then he kept shouting at me that "you might as
well be killed so there will be nobody to nag me.

Q So you said that he dragged you towards the drawer?

A Yes, sir.

Q What is there in the drawer?

A I was aware that it was a gun.

xxx xxx xxx

Q What happened when you were brought to the drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not open it because
he did not have the key. [T]hen he pulled his wallet which contained a blade about 3 inches long and I was
aware that he was going to kill me and I smashed his arm and then the wallet and the blade fell. The one he
used to open the drawer I saw, it was a pipe about that long, and when he was about to pick-up the wallet and
the blade, I smashed him then I ran to the room, and on that very moment everything on my mind was pity on
myself, then the feeling I had on that very moment was the same when I was admitted in PHILPHOS Clinic, I
was about to vomit.

xxx xxx xxx

Q You said that he dropped the blade, for the record will you please
 describe this blade about 3 inches long, how does it look like?

A Three (3) inches long and 1/2 inch wide.

Q Is it a flexible blade?

A It's a cutter.

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?

A He wanted to cut my throat.

Q With the same blade?

A Yes sir, that was the object used when he intimidate me.15

RE-DIRECT BY ATTY. TABUCANON

Q In other words, there were two (2) incidents, the first incident and then he left and then two (2) hours after
he came back?

A Yes, sir.

Q And the whirling happened in the first incident?

A Yes, sir.

Q And the dragging with arms flexed in her neck and on that blade

happened on the second incident (sic)?

A Ye, sir.

xxx xxx xxx

COURT

To the witness

Q Why, what is that blade about?

A A cutter about 3 inches long.

Q Who used that?

A Ben.

Q He used that on you?

A He scared me on that (sic).

xxx xxx xxx

Q But he did not hit you with that?

A Yes, because I managed to run every time he scared (sic).16

There are many things which cannot be proved by direct evidence. One of this is state of mind. In the case at bar,
there is more than sufficient physical evidence presented by the appellant from which her mental state can be inferred.
The prosecution did not object to the presentation of these physical and testimonial pieces of evidence, namely, the
medical records of 23 instances of domestic violence-related injuries and the testimonies of neighbors, cousins and
even the barangay captain. Indeed, no person would endure 23 reported instances of beatings if she were planning
to kill her spouse in the first place. The majority need not worry that women around the country will mastermind the
killings of their husbands and then use this Decision to bolster their attempts to employ the BWS defense.

Moreover, as found in the ponencia, appellant should be allowed the mitigating circumstance of passion and
obfuscation. This, at the very least, supports a finding that the acts of violence and battery committed by the deceased
were illegal and unlawful and were committed immediately before appellant could recover her natural equanimity. But
what is the natural equanimity of a battered woman? Appellant was not a normal married woman. She can never be
in a state of natural equanimity as she was in a constant state of alertness and hypersensitivity to the next phase of
acute battery. The esteemed ponente also correctly found that the appellant acted with diminished will-power.
However, he failed to go further. In the case of People v. Javier,17 it was held:

Since accused-appellant has already admitted to the killing, it is incumbent upon him to prove the claimed mitigating
circumstance of illness. In this case, however, aside from the testimony of the accused that his mind went blank when
he killed his wife due to loss of sleep, no medical finding was presented regarding his mental condition at the time of
the killing. This Court can hardly rely on the bare allegations of accused-appellant, nor on mere presumptions and
conjectures. No clear and convincing evidence was shown that accused-appellant was suffering an illness which
diminished his exercise of will-power at the time of the killing.18

In the case at bar, appellant was allowed and did in fact present clear and convincing evidence that she was a battered
woman for 13-14 years and that she suffered from the "Battered Woman Syndrome". Expert testimony was presented
and admitted to this effect, such that the ponente ably discussed the causes and effects of the syndrome. To ignore
the testimony and the evidence thus presented is to make impossible the proof of mental state. Evidence as to the
mental state need not be also "beyond reasonable doubt."

Verily, the requirement of threatening behavioral pattern of the batterer in previous violent episodes was sufficiently
satisfied in the present case. This, juxtaposed to Marivic's affliction with BWS justified the killing of the deceased. The
danger posed or created in her mind by the latter's threats using bladed weapons, bred a state of fear, where under
the circumstances, the natural response of the battered woman would be to defend herself even at the cost of taking
the life of the batterer.

The ponencia's acknowledgement of "Battered Woman Syndrome" as a valid form of self-defense, is a noble
recognition of the plight of, and a triumph for battered women who are trapped in a culture of silence, shame, and
fear. This would however be an empty victory if we deliberately close our eyes to the antecedents of this case. The
facts are simple. Marivic was suffering from the "Battered Woman Syndrome" and was defending herself when she
killed her husband. Her acquittal of the charge of parricide is therefore in order.

IN VIEW WHEREOF, I vote to ACQUIT Marivic Genosa.

G.R. No. 120367 October 16, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANTONIO BARRETA, DANILO BARRETA, LITO BARRETA, DOMINGO BARRETA (At Large), EDGAR
BARRETA, and ROGELIO BARRETA, accused.
ANTONIO BARRETA, LITO BARRETA, EDGAR BARRETA, and ROGELIO BARRETA, accused-appellants

QUISUMBING, J.:

On appeal is the joint decision of the Regional Trial Court of Palo, Leyte, Branch 8, in Criminal Cases Nos. 8459-60,
promulgated on June 2, 1993, finding accused-appellants Antonio, Edgar, Lito, and Rogelio, all surnamed Barreta,
guilty beyond reasonable doubt of robbery in band in Criminal Case No. 8459 and murder in Criminal Case No. 8460,
thus:

WHEREFORE, in view of the foregoing, this Court finds each of the four accused Lito Barreta, Antonio Barreta,
Edgar Barreta and Rogelio Barreta, guilty of the crime of Murder punishable by reclusion perpetua with
accessory penalties provided by law and to indemnify jointly and severally the legal heirs of the deceased
Clemente Tesaluna, Sr.1 in the sum of P50,000.00, plus costs. The imposable penalty being reclusion
perpetua, the provisions of the Indeterminate Sentence Law do not apply.

The prosecution having proved beyond reasonable doubt, the crime of robbery in band in conspiracy, each of
the four accused is likewise guilty for the crime of robbery in band under Article 294 (5) which is (sic) prision
correccional maximum to prision mayor medium or four (4) years two (2) months and one (1) day to ten (10)
years should be imposed.

Applying the Indeterminate Sentence Law, each of the four accused is sentenced to an indeterminate penalty
ranging from four (4) years of prision correccional as minimum to eight (8) years and twenty one (21) days
of prision mayor as maximum. The sum of P700.00 and the properties taken such as hoe, scythe and bolo
should be returned to the private complainants.

Issue Warrants of Arrest to Antonio2 and Danilo3 both surnamed Barreta who are still at large.

SO ORDERED.4

The facts of this case, as gleaned from the records, are as follows:

On January 26, 1988, sometime between 5:00 to 6:00 o'clock in the afternoon, a much-frightened Epifania Balboa
arrived at the farmhouse of her son, Dominador Balboa, in Taguite, Babatngon, Leyte. She informed him that there
were suspicious-looking persons in the house of his half brother, Clemente Tesaluna, Jr., some 200 meters away.
Dominador and his hired hand, named Celso Salas, became concerned. They farmed in a remote part of a
mountainous area accessible only by walking. Strangers were seldom seen there. Dominador dashed off to
Clemente's house.

Near the house he stopped, for he could not get nearer than fifty (50) meters. There he easily recognized the brothers
Antonio, Danilo, Domingo, Edgar, Lito and Rogelio, all surnamed Barreta. Dominador was familiar with the Barretas,
since they resided in Bagong Silang, a neighboring barangay. Three of them, namely Antonio, Lito and Danilo were
holding an unarmed Clemente. They were holding bolos, locally known as "pisao." He saw Antonio, Lito and Danilo
stab Clemente with their bolos. Antonio hit Clemente on the right side of his body. Danilo stabbed him on the left,
followed by a thrust by Lito to Clemente's right. Meanwhile Domingo, Edgar and Rogelio ransacked Clemente's house.
Domingo then took Clemente's hoe, scythe and bolo, then hurriedly left the place. They jumped out of the house and
escaped towards the mountains.5

Clemente died from the wounds inflicted on him by the Barreta brothers. Epifania informed the victim's wife, Renila,
of her husband's fate. Renila asked for help from the barangay chairman. Several barangay officials and some
relatives accompanied her home. They found Clemente dead with three clearly visible wounds. The clothes and
personal effects of the Tesaluna couple were scattered all over the floor. Some P700.00 in cash and farm implements
were missing. The bag where Clemente kept his money was forced open with a bolo. The police investigated the
incident. Dr. Victor Hilarion Cruz, of the Leyte Provincial Hospital, performed an autopsy on Clemente. He reported
on three stab wounds and a hacking wound. He identified the cause of death as "cardiorespiratory arrest (due) to
hacking wound."6

The Provincial Prosecutor's Officer filed the Information, docketed as Criminal Case No. 8460, with the RTC of Palo,
Leyte. He charged Antonio, Danilo, Domingo, Edgar, Lito, and Rogelio, thus:
 That on or about the 26th day of January, 1988 in the municipality of Babatngon, Province of Leyte,
Philippines, within the jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping one another, did, then and there with malice aforethought and with
deliberate intent to take the life of Clemente Tesaluna, Sr., willfully, unlawfully and feloniously suddenly,
unexpectedly and treacherously take advantage of superior strength and with the aid of armed men attack
and hack the latter with long bolos, producing fatal wounds on the body of the said Clemente Tesaluna, Sr.,
thereby causing his direct and immediate death.

Contrary to law.7

A separate Information in Criminal Case No. 8459 also charged the six brothers for robbery in band, allegedly
committed as follows:

That on or about the 26th day of January, 1988, in the Municipality of Babatngon, Province of Leyte,
Philippines, within the jurisdiction of this Honorable Court, the above-named accused who were all armed with
long-bladed bolos conspiring, confederating and mutually helping one another did, then and there, willfully,
unlawfully, and feloniously with intent to gain and with the use of force upon things to wit: by forcibly breaking
open with a bolo the clothes bag belonging to Clemente Tesaluna, Sr., take and carry away money in an
undetermined amount, to the damage and prejudice of the said owner.

Contrary to law.8

Warrants for the arrest of the six Barreta brothers were issued, but only four, namely Antonio, Edgar, Lito and Rogelio
were apprehended. The remaining brothers went into hiding.

On arraignment Antonio, Edgar, Lito and Rogelio pleaded not guilty to the charges of murder and robbery in band.
Criminal Cases Nos. 8459 and 8460 were then jointly tried.

The prosecution's relied on the testimony of Dominador Balboa who positively identified the Barreta brothers as the
malefactors who killed Clemente Tesaluna, Jr., and robbed his house of money and belongings.

The defense averred that it was Lito Barreta alone who killed Clemente. In the afternoon of January 26, 1988,
according to the defense's version, Lito was on his way to buy cigarettes at Taguite. Clemente, who suspected that
Lito gathered tuba from his coconut tree, accosted him. Clemente challenged Lito to a fight. Lito denied Clemente's
accusation. The latter drew his bolo, but since Lito was quicker, he beat Clemente to the draw. Lito stabbed Clemente
twice with his bolo. He immediately went home. Lito denied that his brothers were involved. He also denied that they
robbed Clemente, whom he knew only by name. He could not understand why his brothers were implicated in the
stabbing. He also denied that he knew Dominador Balboa, Celso Salas, and Epifania Balboa. He admitted he hit
Clemente first below his left armpit and then, while Clemente was down, on his face.9

Antonio, Edgar, and Rogelio denied any participation in the murder and robbery. All three testified that at the time of
incident, they were at Barangay Silang, Babatngon, Leyte, carousing and making merry after a hard day's work. They
presented Fausto Rosales, a farmer, who testified that from January 20, 1988 to January 28, 1988, he hired the three
accused to work on his farm from January 20-28, 1988. At the time of the incident, Antonio, Edgar and Rogelio were
working on his farm as hired hands. On January 28, 1988, they had a drinking spree in a residence of a certain
Bunglas. That day, they cut the tall grasses on Fausto's farm from 7:00 A.M. to 5:00 P.M., pausing only at 12:00 noon
to eat lunch. They went home after their work on January 28, 1988 at five o'clock in the afternoon. He was sure that
they were home on January 28, 1988, because when he brought the 1/2 gallon of tuba to Bunglas' house, the three
brothers were with their father, Celestino, in the drinking spree, which lasted until 7:00 P.M. When he went home, he
knew nothing of the incident at sitio Bosque, which is 9 to 10 kilometers distant from Barangay Bagong Silang, and
could only be negotiated by foot. He did not know the deceased Clemente.10

The lower court gave full faith and credence to the prosecution's evidence and, as earlier noted, convicted accused-
appellants of the offenses charged.

Appellants moved for reconsideration of the lower court's judgment with respect to Criminal Case No. 8460, arguing
that since the trial court found that they were all minors at the time of the incident, they were entitled to the privileged
mitigating circumstance of minority under Article 6811 of the Revised Penal Code. They prayed that the penalty
imposed upon them be reduced to four (4) years, two (2) months, and one (1) day of prision correccional as minimum
to twelve (12) years and one (1) day of reclusion temporal as maximum. The prosecution opposed the motion, on the
ground that only Rogelio Barreta could be considered a minor, and doubtfully at that, there being no evidence to
support his claim that he was only seventeen years old at the time of the incident. On November 15, 1993, the trial
court denied the motion.

Hence, the instant case, with appellants assigning the following errors allegedly committed by the trial court:

I
 THE TRIAL COURT GRAVELY ERRED IN FINDING ALL THE ACCUSED GUILTY OF THE CRIMES OF
ROBBERY AND MURDER BEYOND REASONABLE DOUBT.

II

THE TRIAL COURT GRAVELY ERRED IN NOT PRESCRIBING THE CORRECT PENALTY FOR THE
PROPER CRIME AND IN NOT APPRECIATING THE PRIVILEGE(D) MITIGATING CIRCUMSTANCE OF
MINORITY IN FAVOR OF ACCUSED-APPELLANTS.

We find pertinent the following issues: (1) Whether the guilt of appellants of the crimes of robbery in band and murder
were proven by the prosecution beyond reasonable doubt; and (2) Whether minority should be considered as a
privileged mitigating circumstance in favor of appellants.

Appellants assail the testimony of Dominador Balboa for being "incredible."12 They submit that Dominador testified
that it was both late in the afternoon and windy, and the scene "definitely dark and turbulent."13 With poor vision and
being fifty meters away, Dominador could not have positively identified the accused who were inside the house.
Appellants also argue that Epifania Balboa did not know the "six persons" who came to the house of the victim; her
identification of appellants as the perpetrators of the crime is thus doubtful. Appellants suggest that the relatives of
the victim would like to see virtually all the members of the Barreta family suffer because Lito Barreta killed the latter
in a fight. Finally, appellants charge that the trial court erred in refusing to appreciate their alibi, which was corroborated
by Fausto Rosales.

We have carefully examined the records of this case and find nothing in them to support appellants' claim that it was
so dark and turbulent so as to make positive identification difficult. What Dominador testified to was that he decided
not to prepare smoke for copra because it was already late and it was windy.14 Nothing would show that Dominador
had poor vision. Dominador's positive identification was unshaken under rigorous cross-examination. It was
straightforward and candid. As a rule, appellate courts will not interfere with the judgment of the trial court in passing
upon the credibility of a witness, unless there appears in the record some fact or circumstance of weight and influence
which has been overlooked or the significance of which has been misinterpreted or misapprehended. 15 That general
rule holds true in this case.

Nor do we doubt Epifania's identification because she did not know the "six persons." Even if she did not know their
names prior to the incident,16 she was able to identify them in open court. There is nothing in law or jurisprudence
which requires, as a condition sine qua non, that, for a positive identification of a felon by a prosecution witness to be
good, the witness must first know the former personally.17 The witness need not have to know the names of the
accused for so long as she recognizes their faces.18 Besides, the defense did not contradict her identification of
appellants whose presence so frightened her that she ran off to call for help.

Neither are we convinced of any alleged malicious motive on the part of the witnesses who testified against the
appellants. The records are bare of any evidentiary support for such an allegation. The presumption is that no such
improper motive exists and their testimonies should thereby be accorded full faith and credit.19

Appellants insinuate that since Dominador Balboa is a half-brother of the victim, he had motive enough to testify
against them, even falsely. But as often stated, we hold that relatives of a victim would not avenge the death of their
kin by blaming it on persons whom they know to be innocent.20 Family members who have witnessed the killing of
their loved one usually strive to remember the faces of the assailants,21 so that justice would be served.

The alibi of Antonio, Edgar, and Rogelio likewise fails to persuade us against the positive identification made by the
eyewitness. For alibi to prosper, the accused should prove not only that he was at some other place when the crime
was committed but also that it was physically impossible for him to be at the locus criminis at the time of the
commission.22 The distance between Taguite and Bagong Silang, Babatngon is a mere 3.5 kilometers which can be
negotiated by walking in two hours.23 The distance of 3.5 kilometers to the crime scene cannot provide sufficient
credence to appellants' alibi.

That Lito alone killed Clemente in self-defense is less than believable. He said he met the victim in a chance encounter
on the road to Taguite after the latter accused him of stealing tuba from his coconut palm.24 He said he stabbed the
victim twice in self-defense, after which he left the victim.25 Physical evidence, however, does not support Lito's
testimony. For he claimed that he inflicted two stab wounds on the victim. The autopsy report26clearly showed that the
victim suffered three (3) stab wounds and one (1) hacking wound.27 Further Lito's claim that he left the victim dead on
the road is contradicted by the Renila Tesaluna's testimony that she and barangay officials found her husband's
corpse in their kitchen.28 Thus, on the first issue, we must conclude that no errors were committed by the court a quo.

On the second issue, without admitting their guilt, appellants fault the trial court for convicting them of the separate
offenses of murder and robbery in band, instead of the special complex crime of robbery with homicide. They also
claim that said court erred in failing to consider the special privileged mitigating circumstance of minority of appellants
in imposing upon them the penalty of reclusion perpetua for murder.

In robbery with homicide, the prosecution must prove the following elements: (1) the taking of personal property with
the use of violence or intimidation against a person; (2) the property thus taken belongs to another; (3) the taking is
characterized by animus lucrandi; and (4) on the occasion of the robbery or by reason thereof, the crime of homicide,
as used in its generic sense, was committed.29 In robbery with homicide, the principal purpose of the accused must
be shown to be to commit robbery, the homicide being committed either by reason of, or on occasion of the
robbery.30 The homicide may precede or occur after the robbery. What is essential is that there is a nexus, an intimate
connection between robbery and the killing, whether the latter be prior or subsequent to the former, or whether both
crimes be committed at the same time.31

In the instant case, the testimony of prosecution eyewitness Dominador Balboa shows, that the killing of the deceased
took place simultaneously with the robbery.32 While Antonio, Lito, and Danilo attacked the victim in his kitchen, Danilo,
Domingo, and Rogelio were ransacking the house for valuables to steal. These simultaneous events show applicants'
intention to both rob and kill the victim. There is no showing that the robbery was committed after the homicide as an
afterthought or as a minor incident to the homicide. The criminal acts of appellants cannot, thus, be viewed as two
distinct offenses. Hence, appellants should not have been convicted of the separate offenses of murder and robbery
in band under Articles 248 (1)33 and 29634 of the Revised Penal Code, respectively, but of robbery with homicide under
Article 294 (1)35 of the Revised Penal Code.

Finally, appellants, except for Rogelio, are not entitled to the privileged mitigating circumstance of minority. When
appellant Antonio Barreta testified in his defense on January 8, 1991, he admitted that he was 24 years old.36Appellant
Lito Barreta, in turn, declared that he was 22 years of age, when he took the witness stand on September 17,
1990,37 while appellant Rogelio Barreta admitted to being 19 years of age when he testified on November 6,
1990.38 Since the incident in question took place on January 26, 1988, appellant Antonio Barreta must have been 22
years old at that time, appellant Lito Barreta, 20 years old, and appellant Rogelio Barreta 17 years old, if their claims
and admissions are to be taken at face value. Thus, only Rogelio can be deemed a minor at the time of the commission
of the offense. Mitigating circumstances are personal to an accused in whose favor they are determined to exist and
cannot be enjoyed by his co-accused.39 Rogelio, being below 18 years of age at the time the crime was committed, is
entitled to the privileged circumstance of minority pursuant to Article 68 (1) of the Revised Penal Code. The penalty
for robo con homicidio at the time of the commission of the offense is reclusion perpetua to death. At that time, the
imposition of the death penalty was suspended by virtue of Article III, Section 19 (1) of the Constitution. Hence, the
maximum allowable penalty was reclusion perpetua, which the trial court imposed in Criminal Case No. 8460. Under
Article 68 (2) of the Revised Penal Code, where the offender is over 15 and under 18 years of age, "the penalty next
lower than that prescribed by law shall be imposed, but always in the proper period." The penalty next lower
is reclusion temporal. Applying the Indeterminate Sentence Law, the penalty imposable upon Rogelio is prision
mayor maximum to reclusion temporal medium, or from ten (10) years and one (1) day to seventeen (17) years and
four (4) months. The penalty imposed in Criminal Case No. 8459 (robbery in band) should be deleted as this will favor
all the accused, the proper charge being for a special complex crime of robbery with homicide, instead of two separate
offenses of murder and robbery in band.

WHEREFORE, the decision of the Regional Trial Court of Palo, Leyte, Branch 8, in Criminal Cases Nos. 8459-60,
dated June 2, 1993, is MODIFIED. Appellants Antonio, Edgar, Lito and Rogelio, all surnamed Barreta are found
GUILTY beyond reasonable doubt of the special complex crime of ROBBERY WITH HOMICIDE as defined and
penalized under Article 294 (1) of the Revised Penal Code. Antonio, Edgar and Lito, all surnamed Barreta, are hereby
sentenced to suffer the penalty of reclusion perpetua with the accessory penalties provided by law. The privileged
mitigating circumstance of minority being in Rogelio Barreta's favor, he is hereby sentenced to a prison term of ten
(10) years and one (1) day of prision mayor as minimum to twelve (12) years, five (5) months, and ten (10) days
of reclusion temporal as maximum. Appellants are also ordered to jointly and severally pay the heirs of Clemente
Tesaluna, Jr., P50,000.00 as civil indemnity.

No pronouncement as to costs.

SO ORDERED.
G.R. No. 172832 April 7, 2009

ROSARIO T. DE VERA, Petitioner,

vs.
GEREN A. DE VERA, Respondent.

DECISION

NACHURA, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking to reverse the
February 28, 2006 Decision1 of the Court of Appeals (CA) and its May 24, 2006 Resolution2 in CA-G.R. SP No. 91916.

The facts, as found by the CA, are as follows:

Petitioner Rosario T. de Vera accused her spouse Geren A. de Vera (Geren) and Josephine F. Juliano (Josephine)
of Bigamy. They were thus indicted in an Information, the accusatory portion of which reads:

That on or about the 31st day of July, 2003, in the Municipality of San Juan, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the said accused Geren A. De Vera being previously united in lawful marriage
with Rosario Carvajal Tobias-De Vera, and without said marriage having been legally dissolved, did, then and there
willfully, unlawfully and feloniously contract a second marriage with accused Josephine Juliano y Francisco, who
likewise has previous knowledge that accused Geren A. De Vera’s previous marriage with Rosario T. De Vera is still
valid and subsisting, said second marriage having all the essential requisites for its validity.

CONTRARY TO LAW.3

Upon arraignment, Geren pleaded "Guilty." However, in a Motion4 dated April 8, 2005, he prayed that he be allowed
to withdraw his plea in the meantime in order to prove the mitigating circumstance of voluntary surrender. The motion
was opposed5 by petitioner on the ground that not all the elements of the mitigating circumstance of "voluntary
surrender" were present. She added that "voluntary surrender" was raised only as an afterthought, as Geren had
earlier invoked a "voluntary plea of guilty" without raising the former. Finally, she posited that since the case was ready
for promulgation, Geren’s motion should no longer be entertained.

In an Order6 dated June 6, 2005, the Regional Trial Court (RTC) granted Geren’s motion and appreciated the
mitigating circumstance of voluntary surrender in the determination of the penalty to be imposed. Thus, on even date,
the RTC promulgated Geren’s Sentence,7 the dispositive portion of which reads:

WHEREFORE, the court finds accused Geren A. de Vera guilty beyond reasonable doubt of the crime of bigamy as
charged in the Information and there being two (2) mitigating circumstances (Plea of guilty and voluntary surrender),
and no aggravating circumstance and applying the provision of Article 349 in relation to paragraph 5, Article 64,
Revised Penal Code, as amended, and the Indeterminate Sentence Law, accused is hereby sentenced to suffer the
penalty of 6 MONTHS of ARRESTO MAYOR, as minimum to FOUR (4) YEARS, TWO (2) MONTHS of PRISION
CORRECCIONAL, as maximum.

No pronouncement as to cost.

SO ORDERED.

Unsatisfied, petitioner moved for the partial reconsideration8 of the decision but the same was denied in an
Order9 dated August 25, 2005.

In the meantime, on June 8, 2005, Geren applied for probation10 which was favorably acted upon by the RTC by
referring it to the Probation Officer of San Juan, Metro Manila.11

For failure to obtain favorable action from the RTC, petitioner instituted a special civil action for certiorari before the
CA. However, she failed to persuade the CA which rendered the assailed decision affirming the RTC Order and
Sentence, and the assailed resolution denying her motion for reconsideration. In sustaining the appreciation of the
mitigating circumstance of voluntary surrender, the CA maintained that all its requisites were present.

Hence, the instant petition based on the following grounds:

THE HONORABLE COURT OF APPEALS HAS DECIDED QUESTIONS OF SUBSTANCE IN A WAY NOT
PROBABLY IN ACCORD WITH LAW AND WITH APPLICABLE DECISIONS OF THIS HONORABLE COURT WHEN:
 A. IT ERRONEOUSLY FAILED TO APPLY THE RULING IN PEOPLE VS. CAGAS REGARDING THE
REQUISITES OF VOLUNTARY SURRENDER TO BE APPRECIATED IN THE INSTANT CASE.

B. IT INCORRECTLY AFFIRMED THE ORDER AND SENTENCE BOTH DATED JUNE 6, 2005 AND THE
ORDER DATED AUGUST 25, 2005 RENDERED BY THE PUBLIC RESPONDENT IN APPRECIATING THE
MITIGATING CIRCUMSTANCES OF PLEA OF GUILTY AND VOLUNTARY SURRENDER IN FAVOR OF
THE PRIVATE RESPONDENT IN CRIMINAL CASE NO. 130139, AN ACT THAT WARRANTS THIS
HONORABLE COURT TO EXERCISE ITS APPELLATE JUDICIAL DISCRETION.12

The petition lacks merit.

While we are called upon to resolve the sole issue of whether the CA correctly denied the issuance of the writ of
certiorari, we cannot ignore the procedural issues which the trial and appellate courts failed to appreciate.

In filing her motion for reconsideration before the RTC and her petition for certiorari before the CA, petitioner sought
the modification of the court’s judgment of conviction against Geren, because of the allegedly mistaken application of
the mitigating circumstance of "voluntary surrender." The eventual relief prayed for is the increase in the penalty
imposed on Geren. Is this action of petitioner procedurally tenable?

Section 7, Rule 120 of the Revised Rules of Criminal Procedure provides:

Sec. 7. Modification of judgment. – A judgment of conviction may, upon motion of the accused, be modified or set
aside before it becomes final or before appeal is perfected. Except where the death penalty is imposed, a judgment
becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally
satisfied or served, or when the accused has waived in writing his right to appeal, or has applied for probation.

Simply stated, in judgments of conviction, errors in the decision cannot be corrected unless the accused consents
thereto; or he, himself, moves for reconsideration of, or appeals from, the decision.13

Records show that after the promulgation of the judgment convicting Geren of bigamy, it was petitioner (as private
complainant) who moved for the reconsideration14 of the RTC decision. This was timely opposed by Geren, invoking
his right against double jeopardy.15 Although the trial court correctly denied the motion for lack of merit, we would like
to add that the same should have been likewise denied pursuant to the above-quoted provision of the Rules.

As explained in People v. Viernes,16 the rule on the modification of judgments of conviction had undergone significant
changes before and after the 1964 and 1985 amendments to the Rules. Prior to the 1964 Rules of Court, we held in
various cases17 that the prosecution (or private complainant) cannot move to increase the penalty imposed in a
promulgated judgment, for to do so would place the accused in double jeopardy. The 1964 amendment, however,
allowed the prosecutor to move for the modification or the setting aside of the judgment before it became final or an
appeal was perfected. In 1985, the Rules was amended to include the phrase "upon motion of the accused," effectively
resurrecting our earlier ruling prohibiting the prosecution from seeking a modification of a judgment of conviction.
Significantly, the present Rules retained the phrase "upon motion of the accused." Obviously, the requisite consent of
the accused is intended to protect him from having to defend himself anew from more serious offenses or penalties
which the prosecution or the court may have overlooked.18

Equally important is this Court’s pronouncement in People v. Court of Appeals 19 on the propriety of a special civil
action for certiorari assailing a judgment of conviction. In that case, the trial court convicted the accused of homicide.
The accused thereafter appealed his conviction to the CA which affirmed the judgment of the trial court but increased
the award of civil indemnity. The Office of the Solicitor General (OSG), on behalf of the prosecution, then filed before
this Court a petition for certiorari under Rule 65, alleging grave abuse of discretion. The OSG prayed that the appellate
court’s judgment be modified by convicting the accused of homicide without appreciating in his favor any mitigating
circumstance. In effect, the OSG wanted a higher penalty to be imposed. The Court declared that the petition
constituted a violation of the accused’s right against double jeopardy; hence, dismissible. Certainly, we are not inclined
to rule differently.

Indeed, a petition for certiorari may be resorted to on jurisdictional grounds. In People v. Veneracion,20 we entertained
the petition for certiorari initiated by the prosecution to resolve the issue of whether the RTC gravely abused its
discretion in imposing a lower penalty. In that case, the trial judge, fully aware of the appropriate provisions of the law,
refused to impose the penalty of death because of his strong personal aversion to the death penalty law, and imposed
instead reclusion perpetua. In resolving the case in favor of the prosecution, the Court concluded that the RTC gravely
abused its discretion, and remanded the case to the trial court for the imposition of the proper penalty. By so doing,
we allowed a modification of the judgment not on motion of the accused but through a petition initiated by the
prosecution. But it was an exceptional case. Here and now, we reiterate the rule that review is allowed only in
apparently void judgments where there is a patent showing of grave abuse of discretion amounting to lack or excess
of jurisdiction. The aggrieved parties, in such cases, must clearly show that the public respondent acted without
jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction.21

Grave abuse of discretion defies exact definition, but it generally refers to "capricious or whimsical exercise of
judgment as is equivalent to lack of jurisdiction." The abuse of discretion must be patent and gross as to amount to
an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of
law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and
hostility.22 Obviously, no grave abuse of discretion may be attributed to a court simply because of its alleged
misappreciation of the mitigating circumstance of voluntary surrender. Consequently, the trial court’s action cannot
come within the ambit of the writ’s limiting requirement of excess or lack of jurisdiction. Thus, the trial court’s action
becomes an improper object of, and therefore non-reviewable by, certiorari.23

Even if we dwell on the merit of the case, which had already been done by the appellate court, we find no cogent
reason to grant the instant petition.

For voluntary surrender to be appreciated, the following requisites should be present: 1) the offender has not been
actually arrested; 2) the offender surrendered himself to a person in authority or the latter’s agent; and 3) the surrender
was voluntary.24 The essence of voluntary surrender is spontaneity and the intent of the accused to give himself up
and submit himself to the authorities either because he acknowledges his guilt or he wishes to save the authorities
the trouble and expense that may be incurred for his search and capture.25 Without these elements, and where the
clear reasons for the supposed surrender are the inevitability of arrest and the need to ensure his safety, the surrender
is not spontaneous and, therefore, cannot be characterized as "voluntary surrender" to serve as a mitigating
circumstance.26

Petitioner is correct in saying that in People v. Cagas27 and in People v. Taraya,28 the Court added a fourth requisite
before "voluntary surrender" may be appreciated in favor of the accused – that there is no pending warrant of arrest
or information filed. Since the warrant of arrest had been issued, petitioner insists that arrest was imminent and the
"surrender" could not be considered "voluntary."

In Cagas, after the stabbing incident, the accused ran to the upper portion of the cemetery where a police officer
caught up with him. Thereupon, he voluntarily gave himself up. The Court held that if the accused did then and there
surrender, it was because he was left with no choice. Thus, the "surrender" was not spontaneous.

In Taraya, when the accused learned that the police authorities were looking for him (because of a warrant for his
arrest), he immediately went to the police station where he confessed that he killed the victim. Notwithstanding such
surrender and confession to the police, the Court refused to appreciate the mitigating circumstance in his favor.

Lastly, in People v. Barcino, Jr.,29 the accused surrendered to the authorities after more than one year from the incident
in order to disclaim responsibility for the killing of the victim. The Court refused to mitigate the accused’s liability
because there was no acknowledgment of the commission of the crime or the intention to save the government the
trouble and expense in his search and capture; and there was a pending warrant for his arrest.

Certainly, we cannot apply the same conclusion to the instant case. Cagas is not applicable because the accused
therein did not surrender but was caught by the police. In Taraya, the warrant of arrest had, in fact, been issued and
was forwarded to the proper authorities for implementation. In Barcino, it was a year after the commission of the crime
when the accused went to the police station, not for purposes of acknowledging his culpability, nor to save the
government the expense and trouble of looking for and catching him, but actually to deny his culpability.

In this case, it appears that the Information was filed with the RTC on February 24, 2005. On March 1, 2005, the court
issued an Order finding probable cause for the accused to stand trial for the crime of bigamy and for the issuance of
a warrant of arrest. In the afternoon of the same day, Geren surrendered to the court and filed a motion for reduction
of bail. After the accused posted bail, there was no more need for the court to issue the warrant of arrest.30

The foregoing circumstances clearly show the voluntariness of the surrender. As distinguished from the earlier cases,
upon learning that the court had finally determined the presence of probable cause and even before the issuance and
implementation of the warrant of arrest, Geren already gave himself up, acknowledging his culpability. This was
bolstered by his eventual plea of guilt during the arraignment. Thus, the trial court was correct in appreciating the
mitigating circumstance of "voluntary surrender."

We would like to point out that the mere filing of an information and/or the issuance of a warrant of arrest will not
automatically make the surrender "involuntary." In People v. Oco,31 the Court appreciated the mitigating circumstance
because immediately upon learning that a warrant for his arrest was issued, and without the same having been served
on him, the accused surrendered to the police. Thus, it is clear that notwithstanding the pendency of a warrant for his
arrest, the accused may still be entitled to the mitigating circumstance in case he surrenders, depending on the actual
facts surrounding the very act of giving himself up.

WHEREFORE, premises considered, the petition is DENIED. The Court of Appeals February 28, 2006 Decision and
its May 24, 2006 Resolution in CA-G.R. SP No. 91916 are AFFIRMED.

SO ORDERED.

G.R. No. 102772 October 30, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROGELIO DEOPANTE y CARILLO, accused-appellant.

PANGANIBAN, J.:p

In deciding this appeal, the Court finds occasion to reiterate some well-settled doctrines in appreciating evident
premeditation as a qualifying circumstance in the crime of murder, and in evaluating claims of self-defense,
voluntary surrender and physical defect.

This is an appeal from the decision 1 dated September 6, 1991 of the Regional Trial Court of Pasig, Metro Manila,
National Capital Judicial Region, Branch 164, 2 in Criminal Case No. 85155, convicting accused Rogelio Deopante
y Carillo of the crime of murder and sentencing him to reclusion perpetua.

On January 11, 1991, an Information 3 was filed against the appellant charging him as follows:

That on or about the 10th day of January, 1991, in the Municipality of Pasig, Metro Manila, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, armed with a fan knife
(balisong), with intent to kill and with evident premeditation and treachery did then and there willfully,
unlawfully and feloniously stab with a fan knife one Dante Deopante on the different parts of his body,
thereby inflicting upon the latter mortal wounds which directly caused his death.

Contrary to law.

Arraigned on March 8, 1991, the accused, assisted by counsel de oficio, pleaded not guilty to the charge. 4

The Facts

According to the Prosecution

The facts as summarized by the Solicitor General, who added the page references to the transcript of
stenographic notes, are as follows: 5

At around nine o'clock in the evening (9:00 p.m.) of January 10, 1991 at Alkalde Jose Street, Barrio
Kapasigan, Pasig, Metro Manila, Dante Deopante was having a conversation with his friend Renato Molina
when they saw appellant Rogelio Deopante coming towards their direction. Renato noticed that as appellant
was fast approaching, the latter was drawing out an open fan knife (balisong) from his right back pants
pocket. Sensing danger, Renato immediately called out to Dante and told the latter to flee the place. As
Dante took flight, so did Renato in another direction. (pp. 3-4, 6, 8, t.s.n. June 3, 1991)

Appellant ran after Dante and overpowered the latter at a basketball court located in a lot between
Alkalde Jose and Pariancillo Streets. Appellant and victim grappled with each other and both fell on
the ground. Appellant was able to assume the dominant position and as Dante lay flat on his back the
former proceeded to stab the latter twice with his fan knife. Immediately thereafter, appellant stood up
and fled the scene leaving Dante mortally wounded. Bystanders milling around Pariancillo Street then
rushed victim to the Rizal Medical Pariancillo Street then rushed victim to the Rizal Medical Center.
(pp. 3-5, t.s.n., April 25, 1991; pp. 8, 9, 11, t.s.n. June 3, 1991)

At about the same time on the aforesaid date, the Pasig Police Station received a telephone call from
the Rizal Medical Center informing them that a stabbing victim has been brought to said hospital for
treatment. Patrolman Crispin Pio proceeded to the hospital and there received the information that
appellant was the one who stabbed Dante. Said policeman later obtained the sworn statement of
Nestor Deopante indicating that appellant stabbed the victim. Renato refused to give his sworn
statement to the police, but insisted that indeed it was appellant who stabbed Dante. (pp. 5-7, t.s.n.,
May 15, 1991)

At around eleven o'clock (11:00 p.m.) of the same evening, Patrolman Crispin Pio and two (2) other
police officers went to the house of appellant located at No. 12 Alkalde Jose Street, Barrio Kapasigan,
Pasig, Metro Manila. After informing appellant of the allegation against him, they invited the former to
the police station for investigation. Appellant went with the police officers and maintained his innocence
throughout the investigation. Patrolman Crispin Pio recovered a fan knife from appellant measuring
around ten (10") inches when opened. He sent the fan knife to the P.N.P. Crime Laboratory Service
for examination. (pp. 8-9, t.s.n., May 15, 1991)

The autopsy report shows a total of seven (7) wounds all over victim's body. Of these wounds, two (2)
were stab wounds (Wound Nos. 2 & 3) and the rest mere abrasions. Dr. Emmanuel Aranas, the
medico-legal officer of the P.N.P. Crime Laboratory Service who conducted the autopsy testified that
 the stab wounds were caused by a sharp pointed object like a balisong or fan knife. He further declared
that Wound No. 2, a stab wound located at the left side of the chest, lacerated the diaphragm, liver
(left lobe) and stomach of the victim causing the latter's instantaneous death. Moreover, he concluded
that the fan knife sent to him for examination could have been used in stabbing a person since it
showed minute traces of human blood. (pp. 7-8, t.s.n., April 19, 1991; p. 17. t.s.n., May 30, 1991)

The prosecution presented six witnesses. Aside from Dr. Emmanuel L. Aranas, who testified on the results of
the autopsy, the other witnesses included Manolo Angeles and Renato Molina, who gave eyewitness accounts
of the stabbing. Patrolman Crispin Pio of the Pasig Police Station testified that he invited the accused for
investigation after receiving a report on the killing, and that upon frisking the accused, he found and recovered
from him a 10-inch fan knife which he submitted to the crime lab for examination. Alfonso Reyes, barangay
captain of Barangay Kapasigan, Pasig, Metro Manila, testified that on August 19, 1989, Dante Deopante made
a personal complaint to him as barangay captain, that Rogelio Deopante had threatened to kill him (Dante).
He testified that his office kept a logbook of all the incidents that happened in the barangay and that the same
contained a record of the said complaint 6 of Dante Deopante. However, on cross-examination, he admitted that
he was not the one who personally made the entry.

Version of the Defense

In contrast to the prosecution's theory that the victim was killed with evident premeditation, the defense claimed
that the fatal injuries inflicted by accused-appellant upon the victim were done in self-defense. 7 The defense
presented three witnesses, viz.: the accused himself, his longtime friend Benito Carrasco, and the son of the
accused, Vladimir Deopante. Their version of the event was as follows:

On January 10, 1991, at about 9:00 o'clock in the evening, in Alcalde Jose Street, Pasig, Metro Manila,
while the appellant was allegedly on his way home he was seen by his nephew, the victim (Dante
Deopante) and the witness for the prosecution, Renato Molina, who at that time were allegedly both
drunk. (TSN June 6, 1991, page 3). The victim (Dante Deopante) suddenly boxed him and the said
appellant ran away and (was) pursued by the victim and Renato Molina. The appellant was overtaken
by the victim by holding the back portion of his shirt. Both
of them fell. The victim pulled-out a knife which appellant allegedly wrested . . . away from Dante
Deopante. After he (appellant) wrested the knife from the victim, they continued rolling over and over
the ground and he does not know whether he stab (sic) the victim or not. (TSN June 6, 1991, page 4).
Said appellant sustained also injuries on (the) little finger of his right hand and abrasion on his right
leg, left knee and left hand (sic). The said appellant was treated by one Dr. Leonides Pappa on January
11, 1991, and issued medical certificate, marked as Exhibits "1, 1-A, 1-B and 1-C" for the defense.
(TSN June 6, 1991, pages 5-6); Appellant claimed that he placed behind bars (incarcerated) the victim
for being a drug addict when he was still a policeman and member of the Police Department of Pasig.
Renato Molina eluded arrest by him, for being a drug addict too. (TSN June 6, 1991, page 6). 8

On cross-examination, accused Rogelio Deopante testified that he was a former member of the Pasig Police
Department but was discharged for having been absent without leave, by reason of a complaint filed against
him by Manolo Angeles before the National Police Commission, and in which case the victim, Dante Deopante,
was presented as witness for complainant Angeles. He further testified that his left hand was completely
severed at the wrist when it was hacked off by his brother Nestor Deopante.

The Trial Court's Ruling

On September 6, 1991, the trial court rendered a decision convicting the appellant of murder, the decretal
portion of which reads as follows:

ACCORDINGLY, the Court finds the accused Rogelio Deopante y Carillo GUILTY beyond reasonable
doubt of the crime of Murder as charged; and therefore hereby imposes upon him the penalty
of reclusion perpetua, there being no other generic aggravating or mitigating circumstance adduced;
and to indemnify the heirs of the victim the amount of P50,000.00 as well as to pay the costs.

SO ORDERED.

The Issues

In his brief, the appellant charges that the trial court erred:

I. In considering the entry in the (barangay) peace and order chairman's blotter under entry no. 0097,
page 58 (logbook) as a basis in holding the commission of the offense with evident premeditation.

II. In not affording the accused-appellant the mitigating circumstances of voluntary surrender and his
physical condition.

III. In not considering appellant's claim of self-defense.

 IV. In not considering the flaws and inconsistencies of the testimonies of the prosecution's witnesses
and its biased character and wanting of credibility (sic).

V. In not considering the provision of Article 69 of the Revised Penal Code in the imposition of penalty.

The Court's Ruling

First Issue: Evident Premeditation

Very familiar by now to members of the legal profession are the elements which need to be proven before
evident premeditation can be appreciated. These are: (1) the time when the accused decided to commit the
crime; (2) an overt act manifestly indicating that the accused had clung to his determination to commit the
crime; and (3) a sufficient lapse of time between the decision to commit the crime and the execution thereof,
to allow the accused to reflect upon the consequences of his act. Mere lapse of time is not enough, however,
because premeditation is not presumed from the mere lapse of time. 9 It must be "evident" from his overt act.

Considering the evidence on record, and the events leading up to the killing, we cannot agree with appellant's
contention that the lower court based its finding of evident premeditation on the victim's report to the barangay
captain that the accused-appellant had threatened to kill him. We hold that the record contains sufficient basis
for the finding of evident premeditation. The first and third elements were proven by the testimony of the
barangay captain, Alfonso Reyes, as to the report made by the deceased about the threat on his life, taken
together with the record of the report in the barangay logbook, 10 all of which established the time when appellant
decided to commit the crime. The period of time between the said report and the killing (January 10, 1991)
constituted a sufficient lapse of time between the determination to commit the crime and the execution of the same,
the enable the accused to coolly consider and reflect upon his resolution to do away with the victim. Finally, the
second element was proven by the eyewitness testimony of Renato Molina, friend of the victim since childhood,
who was present from the inception to the culmination of the assault launched by appellant against the victim. We
quote with approval the trial court's ratiocination, to wit:

That at around 9:00 o'clock in the evening of January 10, 1991, he (Renato Molina) and Dante
Deopante were conversing at Alkalde Jose St., Pasig, Metro Manila when the accused Rogelio
Deopante arrived. He told Dante Deopante to run away. Both of them ran but in different directions.

That he told Dante Deopante to run away because the latter and the accused had a previous (sic)
misunderstanding and the accused always threatened Dante Deopante after the latter testified against
the accused for shooting a certain Maning Angeles.

That he also told Dante Deopante to run away because he saw the accused carrying a fan knife in his
back pocket. He saw it because the place was lighted as there as a lamp post.

xxx xxx xxx

This witness (Molina) testified that when he saw the accused more than six feet away and was
approaching them, he immediately warned his childhood friend and victim Dante Deopante to run
away which the latter did. At the time, the accused was seen by this witness about to draw a knife from
his back pant's pocket; and that he, too, ran away but took the opposite direction. Having traversed a
short distance, he stopped and looked back and saw the accused chasing his victim and nephew until
the former caught up with the latter, took hold of him and they both fell to the ground.

The accused could have desisted from carrying his plan to kill into effect had he stopped when his
nephew took off and ran away from him. The latter did so because he knew in his heart that his uncle
was about to kill him and this was also felt by eyewitness Molina because of the immediate warning
given by him to his friend.

But then, although he saw his nephew sprinting away, he nevertheless did chase him for a distance
and all the while he could have stopped and go home to his residence situated only a few meters
away.

Again he could have let go the victim when he caught up and took hold of him. He did not, but on the
contrary, when they both fell and rolled on the ground, he grappled with his victim and at the very first
opportune moment, mercilessly stabbed his nephew, not only once but twice, inflicting very serious
blows, one of which was most fatal and could have caused instantaneous death of his prey.

So it is that from this very actuation of the accused at the time, it is obviously clear that he clung to this
determination to kill Dante Deopante when he could have stopped at anytime between the moment
that his nephew ran away until the time that he dealt the fatal blows that ultimately caused the death
of Dante Deopante. 11 (emphasis ours)
The three elements having been duly proven, the presence of evident premeditation in the case at bar is
therefore conclusive.

Second Issue: Voluntary Surrender and Physical Defect

as Mitigating Circumstances?

Contrary to appellant's protestations, the trial court was correct in finding no voluntary surrender in this case.
In order to appreciate voluntary surrender by an accused, the same must be shown to have been
"spontaneous and made in such a manner that it shows the intent of the accused to surrender unconditionally
to the authorities, either because he acknowledges his guilt or he wishes to save them the trouble and expense
necessarily incurred in his search and capture. In the absence of any of these reasons, and in the event that
the only reason for an accused's supposed surrender is to ensure his safety, his arrest being inevitable, the
surrender is not spontaneous and, hence, not voluntary. 12 It will be observed in this case that there was no
conscious effort on the part of the accused — who was fetched from his house by police officers to go to police
headquarters for investigation — to voluntarily surrender and/or acknowledge his guilt. He went with them for the
purpose of clearing his name as he in fact tried to do during the investigation where he professed his innocence.
The fact alone that he did not resist but went peacefully with the lawmen does not mean that he voluntarily
surrendered. 13 On this point, it is apt to quote the decision of this Court in People vs. Flores 14where we stated that:

Neither can we accept accused-appellant's plea of voluntary surrender. He did not surrender to the
police. In fact, the evidence adduced shows that it was the police authorities who came to the factory
looking for him. It was there that accused-appellant was pointed to them. With the police closing in,
accused-appellant actually had no choice but to go with them. Seeing that the police were already
approaching him, accused-appellant did not offer any resistance and peacefully went with them. To
be sure, no surrender was made by accused-appellant.

The fact that appellant suffers from a physical defect, a severed left hand, does not mean that he should
automatically be credited with the mitigating circumstance contained in paragraph 8, Article 13 of the Revised
Penal Code. In order for this condition to be appreciated, it must be shown that such physical defect limited
his means to act, defend himself or communicate with his fellow beings to such an extent that he did not have
complete freedom of action, consequently resulting in diminution of the element of voluntariness. 15 Such
cannot be appreciated in the case at bar where the appellant's physical condition clearly did not limit his means of
action, defense or communication, nor affect his free will. In fact, despite his handicap, appellant nevertheless
managed to attack, overcome and fatally stab his victim.

At this point, one might wonder how a one-handed attacker can open a fan knife and grapple with and
overcome his two-handed prey. This was answered by the testimony of Renato Molina who revealed that at
the time the accused closed in for the kill, his balisong was already open and ready for use in his back pocket,
and that he had already drawn the same even during the chase. Molina's testimony 16 is as follows:

Q You said that this Rogelio Deopante arrived while you were conversing with Dante
Deopante and you ask (asked) Dante Deopante to run away, why did you ask Dante
Deopante to run away?

A Because, Sir I saw the open fan knife on his pocket, Sir at his back.

Q When you said that you have seen an open fan knife at his pocket, to whom are you
referring to?

A Rogelio Deopante's, Sir.

xxx xxx xxx

Q How did you notice the fan knife which is placed at the back if (sic) his pocket?

A Because at the time, Sir he was drawing it out.

Hence, at the time the accused-appellant chased the victim, the former already had the balisong in hand.
Clearly, the fact that he had only one hand in no way limited his freedom of action to commit the crime.

Third Issue: Self-defense

Equally well-known and well-understood by now are the requirements in order for self-defense to be
appreciated. The accused must prove that there was unlawful aggression by the victim, that the means
employed to prevent or repel the unlawful aggression were reasonable, and that there was lack of sufficient
provocation on his part. 17 And having admitted that he killed his nephew Dante Deopante, "the burden of the
evidence that he acted in self-defense was shifted to the accused-appellant. It is hornbook doctrine that when self-
defense is invoked, the burden of evidence shifts to the appellant to show that the killing was justified and that he
incurred no criminal liability therefor. He must rely on the strength of his own evidence and not on the weakness of
the prosecution's evidence, for, even if the latter were weak, it could not be disbelieved after his open admission of
responsibility for the killing. 18 Hence, he must prove the essential requisites of self-defense aforementioned.

In the case at bar, appellant failed to prove unlawful aggression by the victim, hence, his claim of self-defense
cannot be sustained. The self-serving and unsupported allegation of appellant that he wrested the knife away
from the victim while they were struggling and rolling around on the ground (in the process sustaining only a
minor scratch on his little finger and abrasion on the right knee) does not inspire belief, when contrasted with
the positive and categorical eyewitness accounts of Renato Molina and Manolo Angeles that appellant ran
after and stabbed the victim. The latter's testimonies are corroborated by the number and extent of the stab
wounds sustained by the victim.

(Testimony of Manolo Angeles)

Q While you were urinating at a post in Pariancillo, can you remember if there was an
unusual incident that happened at that time?

A Yes, sir.

Q What was that unusual incident?

A Nakita ko po si Rogelio Deopante na tikad-tikad ng saksak si Dante Deopante (I saw

Rogelio Deopante chasing Dante Deopante with intention of stabbing).

COURT:

Q You mean by "tikad-tikad", habol?

A Yes, your Honor.

ATTY. VALERIO:

Q How far were you when you were urinating from the place where the victim was
chased by the accused?

A More or less twenty (20) meters, sir.

Q What happened after that?

A He overtook him and stabbed him.

Q Can you remember how many stabs that the deceased received from the accused?

A Two (2), Sir.

Q Did you see the position of the deceased while he was being stabbed?

A At that time Dante Deopante was lying on his back and this Rogelio Deopante
stabbed him. 19

(Testimony of Renato Molina)

Q If you know, what did Rogelio Deopante do with the knife that he was then carrying?

xxx xxx xxx

COURT:

Witness may answer.

A He used (it) in stabbing Dante Deopante.

Q How did he (use) it?

A They were both lying on the ground when this Rogelio Deopante used that Balisong
or fan knife in stabbing the victim, only I did not know how many stabs he made on the
victim (but witness demonstrating as if he is stabbing somebody from his right hand
going downward). 20
Due to appellant's failure to prove unlawful aggression by the victim, and in view of the prosecution's evidence
conclusively showing that it was appellant who was the unlawful aggressor, appellant's claims of self-defense
must be completely discounted, since even incomplete self-defense "by its very nature and essence, always
would require the attendance of unlawful aggression initiated by the victim which must clearly be shown." 21 We
agree with the finding of the trial court that:

There is no gainsaying the fact that the accused herein was responsible for slaying his nephew and
victim Dante Deopante. Only, by way of avoidance, the accused stated that while he and his nephew
were rolling and grappling on the ground, the latter took a knife out of nowhere but he managed to
wrest it away from his nephew and he stabbed him (Dante Deopante) with it.

Such a posture adopted by the accused deserves scant consideration from the Court.

For one, the victim would not have time to draw a knife from his person and then opened it while at
the same time grappling with his uncle while both were rolling on the ground.

For another, such declaration was self-serving on the part of the accused and remains unsupported
by the evidence. Even the accused's own witness and friend for a long time Benito Carrasco who
professed that he was only about five to seven meters away from the accused and who witnessed the
latter grappling with the victim on the ground, did not see Dante took out a knife and that the accused
manage to wrest it away or else the defense would certainly underscore such an event and made
much of it during his testimony in court. The fact that he did not state such a circumstance gave the
lie to such posture taken by the accused. 22

Furthermore, based on the number of stab wounds sustained by the victim, we are convinced that the accused
did not act in self-defense in killing the former. "It is an oft-repeated rule that the presence of a large number
of wounds on the part of the victim negates self-defense; instead it indicates a determined effort to kill the
victim. 23 Accused, after struggling with the victim, had the latter on his back and in an obviously helpless and
vulnerable position. Even assuming arguendo that it was the deceased who had initiated the attack and accused
was merely defending himself, clearly there could not have been any need for him to stab the victim twice if the
purpose was simply to disable the victim or make him desist from his unlawful assault.

Forth Issue: Credibility of Witnesses

We see no reason to disturb the trial court's evaluation and assessment of the credibility of witnesses, the
same not being tainted by any arbitrariness or palpable error. "Jurisprudence teaches us that the findings of
the trial court judge who tried the case and heard the witnesses are not to be disturbed on appeal unless there
are substantial facts and circumstances which have been overlooked and which, if properly considered, might
affect the result of the case. The trial judge's evaluation of the witness' credibility deserves utmost respect in
the absence of arbitrariness. 24 Furthermore, "conclusions and findings of the trial court are entitled to great weight
on appeal and should not be disturbed unless for strong and valid reasons because the trial court is in a better
position to examine the demeanor of the witnesses while testifying on the case. 25

We reviewed the entire record of the case, and found that the trial court correctly gave credence to the
testimonies of Manolo Angeles and Renato Molina. As aptly stated by it:

So it is that the Court gave full credence to the eyewitnesses accounts of prosecution witnesses
Manolo Angeles and Renato Molina.

Both are disinterested eyewitnesses.

Manolo Angeles would not testify falsely against accused because the latter is the uncle of the full
blood of his wife, being the daughter of the sister of the accused. He would not dare incur the wrath of
his wife and her family, specially of the accused whose temperament he well knew.

The same is true with Renato Molina. He resides nearby and in the same locality as the accused and
the victim, the latter being his childhood friend.

Knowing the accused very well and his reputation, he dare not trifle with the truth and testify falsely
against him. In fact, he was very reluctant to testify and it look coercive process of the Court to bring
him to the witness stand.

Besides his presence at the scene of the stabbing incident was even acknowledged by the accused
himself during the trial so that this witness' testimony is well worth considering. 26

Furthermore, we note and concur in the court a quo's assessment of the testimony of the son of the accused,
which definitely tends to negate the theory of self-defense.
 Again, another defense witness presented was Vladimir Deopante, son of the accused who mentioned
in passing during the course of his testimony that when informed of an on-going quarrel involving his
father, he immediately proceeded to the place where the incident was going on and there and then
saw his father grappling on the ground with his cousin Dante and the latter was holding a weapon with
his left hand so much so that he went back home and informed his mother about the matter and he
was instructed to go back and pacify the protagonists.

This portion of the testimony of Vladimir Deopante sounded incredulous and unbelievable.

Confronted with a like situation, a son, seeing that his father being (beleaguered) and in immediate
danger of being stabbed and possibly killed, would instinctively and intuitively rush in, come (to) succor
and render immediate assistance to his endangered parent and would not turn his back on his father
and go back home to await instructions on what to do under the premises.

It may be that this witness was actually at the scene when he saw his father and cousin were grappling
on the ground and seeing that his father had a knife in his hand and had the upper hand as well as in
control of the situation, he did not interfere but turned back and went home and informed his mother.
This would be more in keeping with the natural course of events. 27

Fifth Issue: Incomplete Self-defense

Appellant argues that the trial court should have applied Art. 69 of the Revised Penal Code which provides for
imposition of a penalty lower by one or two degrees than that prescribed by law where the killing "is not wholly
excusable", as in the case at bar, given the absence of some of the requisites to justify the killing. Appellant
is in error. Said provision of law applies only where a majority of the conditions required to justify a criminal
act or exempt from liability are present. Such is not the situation in the case at bar. Unlawful aggression is
indispensable in self-defense, complete or otherwise. When unlawful aggression (by the victim) alone is
proved, such incomplete self-defense is to be appreciated as an ordinary mitigating circumstance under Article
13, paragraph 1 of the Revised Penal Code. When it is combined with another element of self-defense, such
incomplete self-defense becomes a privileged mitigating circumstance under Article 69 of the same
Code. 28 But in the instant case, as already mentioned above, it was conclusively shown that appellant was the
aggressor.

WHEREFORE, the herein appealed Decision convicting appellant Rogelio Deopante y Carillo of the crime of
murder and imposing on him the penalty of reclusion perpetua and the payment to the victim's heirs of civil
indemnity in the amount of P50,000.00 is hereby AFFIRMED in toto. No costs.

SO ORDERED.

G.R. No. 129676 June 23, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CARLOS BOCO y ALEJO and INOCENTES y CRUZ, accused-appellants.

PANGANIBAN, J.:

The capital penalty is not automatically imposed upon illegal peddlers of dangerous drugs. The penalties under the latest amendments
to the Dangerous Drugs Law, introduced by Republic Act 7659, range from prision correcional to death, depending on the quantity and
the kind of the prohibited or regulated drug involved and on the attendant mitigating and aggravating circumstances. More specifically,
the penalty of reclusion perpetua to death when the amount of shabu involved is 200 grams or more. Since the prosecution did not prove
the presence of any aggravating circumstance in the present case, the trial court indubitably erred in sentencing the appellants to death.
 The Case

Before the Regional Trial Court (RTC) of Pasig City, Branch 163, 1 accused-appellants Carlos Boco and Ronaldo Inocentes were
charged with violation of Section 21, Article IV of Republic Act No. 6425 (RA 6425), as amended, otherwise known as the
Dangerous Drugs Law. The accusatory portion of the Information 2 dated October 24, 1996, filed against them by 3rd
Assistant Provincial Prosecutor Felicitas A. Asinas-Guevarra, reads as follows:

That on or about [the] 22nd day of October, 1996 in the City of Mandaluyong, Philippines, a place within the jurisdiction
of this Honorable Court, the above-named accused, conspiring[,] confederating together and mutually helping one
another, without having been authorized by law, did then and there willfully, unlawfully and feloniously attempt to deliver,
distri[b]ute, transport or sell to another, white crystalline substance weighing 234.84 grams all contained in various
heat-sealed transparent plastic bag[s] found positive to the test for [m]ethamphetamine hydrochloride locally known as
"shabu", a regulated d[ru]g.

During their arraignment on November 12, 1996, the accused-appellants, duly assisted by counsel, pleaded not guilty to the
charge. 3 After trial, the RTC promulgated its herein assailed Decision 4 dated June 5, 1997, the dispositive portion of which
states:

WHEREFORE, premises considered, this Court finds accused Carlos Boco y Alejo @ Caloy and Ronaldo Inocentes
@ Boyet Paa guilty beyond reasonable doubt as principals for violation of Section 21, Art. IV, R.A. 6425, as amended,
and imposes upon them the supreme penalty of death and ... a fine in the sum of P5,000,000.00.

The 234.84 grams of shabu subject of the information in this case is hereby ordered forfeited in favor of the government
and ordered turned over to the Dangerous Dru[gs] Board c/o NBI Manila, for disposal as provided by law.

The Facts

Version of the Prosecution

5
Based on the evidence proffered by the prosecution, the trial court summarized the factual antecedents of the case as follows:

About 2:00 o'clock in the morning on 22 October 1996, a confidential informer arrived in the District Anti-Narcotic Unit,
Eastern Police District (DANU-EPD), Camp Miguel Ver, Capitol Compound, Pasig City and talked with Capt. Rodrigo
Bonifacio [who, in turn,] tol[d] SPO1 Emmanuel Magallanes that the informer [would] come back and if the suspect
[was] available, he [would] act as poseur-buyer. When the confidential informer returned and informed Capt. Bonifacio
that the suspect [was] available, Capt. Bonifacio formed a team to effect a buy-bust operation. The team left their
headquarters about 3:15 a.m. on 22 October 1996 and arrived at the target area about 3:45 a.m. on the same date.
Upon arrival in the place, SPO1 Magallanes with the confidential informer proceeded to the pre-arranged meeting place
located at Martinez St., corner Gen. Kalentong St., Brgy. Vergara, Mandaluyong City. The rest of the team members
placed themselves in strategic places in the area, while SPO1 Magallanes and the confidential informer stood-by in the
designated meeting place. Soon thereafter, a Mitsubishi Lancer car arrived and stopped at where SPO1 Magallanes
and the confidential informer were standing by. On board the car were two (2) men, the driver and a passenger. When
the confidential informer recognized @ Caloy, the man seated in th[e] passenger seat [o]f t[h]e Mitsubishi Lancer, he
introduced SPO1 Magallanes to him telling @ Caloy that he would be a potential regular customer. After a short
conversation, SPO1 Magallanes asked @ Caloy if he ha[d] the shabu which was previously ordered. Alias Caloy told
SPO1 Magallanes that he ha[d] the shabu and it [would] cost him P20.000.00. SPO1 Magallanes then showed @ Caloy
his P20,000.00, but before giving it, he asked [if he could] examine first the shabu. Alias Caloy then asked his
companion, @ Boyet Paa, to get the shabu. Boyet Paa then got one (1) piece of heat sealed plastic from the glove
compartment of the car and handed it to @ Caloy who in turn handed it over to SPO1 Magallanes who examined it and
found that it contained crystalline substance suspected to be shabu. SPO1 Magallanes then made the pre-arranged
signal to his back-up who rushed to where he was and after introducing themselves as policemen, arrested the
suspects. SPO1 Magallanes then frisked @ Caloy and found five (5) pcs. of heat sealed plastic bags neatly taped
around his right leg weighing about 210 grams. SPO1 P[o]ngyan who frisked "Boyet Paa found from his right front
pocket one (1) piece of heat sealed plastic containing crystalline substance weighing about 5 grams. The suspects then
were informed of the offense they ha[d] committed and their constitutional rights. They were also identified as Carlos
Boco y Alejo @ Caloy and Ronaldo Inocentes y Cruz @ Boyet Paa. Thereafter, they were brought to the police
headquarters together with the confiscated items. At the headquarters, the suspects were turned over to the police
investigator and the suspected shabu forwarded to the PNP Crime Laboratory at Camp Crame for examination and
P/Insp. Isidro Cariño to whom the required examination was assigned, found the same positive for Methamphetamine
Hydrochloride (shabu), a regulated drug (Exhibit "C").

Version of the Defense

6
On the other hand, the defense presented the following version of the facts:

On 21 October 1996 before midnight, Carlos Boco, Jr. and Ronaldo Inocentes went to 246 La Torre St., Sta. Ana,
Manila to pic[k]-up the former's live-in partner. They stayed in the place for about three (3) hours. When they boarded
their car and [was] about to leave, men approached them with the[i]r guns drawn, ordered them [t]o alight from their
car and to board a van to bring them to the Eastern Police District. Francis Labutap corroborated Boco on this point.
Before proceeding to said Eastern Police District, they passed by the7-11 Restaurant at New Panaderos, Mandaluyong
City. They stopped there for about half an hour. While in the place, the driver of the van took from Boco his jewelries
consisting of three (3) rings, one (1) necklace, one (1) bracelet and his wrist watch plus 10,000.00 Yen, $100.00 and
P18,500.00. Thereafter, Capt. Bonifacio arrived in the place [and] told them . . . "[Y]ari kayo", shabu was found on board
your car. Boco told Capt. Bonifacio that they d[id] not have any drug. Thereafter, they were brought to the Eastern
Police District and about 2:00 p.m. that day, they were required to fac[e] press people and there, they denied the
charges agai[n]st them. About 7:00 p.m. that [s]ame day, they were transferred to the City Jail of Mandaluyong City.

Ruling of the Trial Court

 7
In giving more credit to the prosecution evidence than the defense, the trial court reasoned:

As between a denial and an alibi [of the accused] and the positive testimonies of the prosecution witnesses, the latter
has more weight than the former .... Moreover, police officers are entitled to the presumption that they have performed
their official duties. Their testimony is entitled to great respect . . . .

In arriving at its conclusion that there was a consummated unauthorized sale of the regulated drug methamphetamine hydrochloride, the
court a quo explained: 8

In buy-bust operations involving drugs, the delivery of the buy-bust money to the seller is not a prerequisite. The fact
that the money was shown to the pusher and the poseur-buyer asked that he be shown the drug before he [would
deliver] the money and said drug was handed to said poseur-buyer, that circumstance is enough for the police to
apprehend accused. Sale transaction of drugs under such circumstances is already perfected. After all, [a] contract of
sale is perfected upon [the] meeting of the minds of the parties to the object and the price thereof (Art. 1475, New Civil
). Therefore, the arrest of the accused is legal, accused having been caught in flagrante delicto pushing prohibited
drugs . . . . Hence, the search subsequent to accused's arrest is also legal (Sec. 12, Rule 126, Rules of Court; . . .).

The trial court also concluded from the acts of both accused-appellants that conspiracy existed between them. "Inocentes was the driver
of the car they were using at the time. When asked by SPO1 Magallanes to allow him to examine the shabu before giving the money,
Boco asked Inocentes to get the shabu and the latter got one heat[-]sealed plastic sachet from the glove compartment of the car and
handed it to Boco who in turn handed it to SPO1 Magallanes. Such acts," the court ruled, "clearly constitute conspiracy." 9

Finally, addressing the variance between the offense (attempted sale or delivery) for which the accused were charged on the one hard
and, on the other, the evidence (of consummated sale) presented by the prosecution during the trial, the lower court said: 10

The evidence shows that a perfected contract of sale [o]f shabu has been entered into between Carlos Boco @ Caloy
and SPO1 Emmanuel Magallanes although SPO1 Magallanes did not deliver the money but instead confiscated the
entire shabu in the possession of accused. Although the evidence shows a perfected buy-bust operation, the
investigating prosecutor played safe. Instead of filing [for] violation of Section 15, Article IV of RA 6425, as amended,
he chose to file the information under Section 21 of the same law. That, nevertheless, did not affect the liability of the
accused because if the evidence is sufficient to support conviction of a consummated offense under Section 15, Article
IV of RA 6425, as amended, there is no reason why the same evidence cannot support conviction for an attempted
offense under Section 21 of the same law. Besides, violation of Section[s] 15 and 21 of the law provides the same
penalty.

Issues

In his Appeal Brief 11 filed by his own counsel, 12

Carlos Boco assigns in the following alleged errors in the RTC Decision:

1. The lower court erred in holding that the prosecution has established the guilt of the accused beyond reasonable
doubt.

a. The lower court erred in holding that what transpired in the arrest of the accused was a buy-bust
operation and not a frame-up.

b. The lower court erred in not considering the buy-bust operation, assuming that it did occur[,] as a
case of instigation and not [of] a valid entrapment.

2. Assuming that the testimonies of the prosecution were true, the court erred in convicting the accused for conspiracy
in committing illegal sale of seven (7) packs of shabu weighing 234.84 grams when only one pack containing about 20
grams appeared to be the object of the sale and the rest having been merely found in the possession of the accused
when they were subjected to body search.

In his separate Brief 13 filed by his counsel de parte, 14

Ronaldo Inocentes makes the following assignment of errors:

I.

THAT THE TRIAL COURT ERRED IN . . . CONCLUDING [THE] EXISTENCE OF CONSPIRACY ON THE BASIS OF
INCONCLUSIVE, UNCLEAR, UNSUBSTANCIATED AND UNCORROBORATED FACT AND EVIDENCE OF THE
MERE PRESENCE OF ACCUSED-APPELLANT INOCENTES AT THE PLACE OF THE INCIDENT WHICH WAS
EXPLAINED AND UNREBUTTED, WHERE THE SPECIFIC TARGET WAS BOCO WHERE [THE] ACTUAL FACT
AND EVIDENCE SHOW CLEAR OR PARTICIPATORY ACT OF INOCENTES OF A CONSCIOUS DESIGN TO
COMMIT AN OFFENSE SAVE THE LONE UNSUPPORTED TESTIMONY OF SPO1 MAGALLANES ABSOLVING
INOCENTES TESTIFYING THAT INOCENTES WAS SIMPLY SEATED AT THE DRIVER'S SEAT AND THAT IT WAS
BOCO WHO TOOK THE SHABU FROM THE COMPARTMENT OF THE CAR HIMSELF.

II.

THAT THE TRIAL COURT ERRED GRIEVIOUSLY IN RENDERING AND PROMULGATING A DECISION
CONVICTING ACCUSED-APPELLANTS BOCO AND INOCENTES FOR THE ALLEGED SALE AND DELIVERY OF
SHABU IN AN INFORMATION CHARGING AND DESCRIBING THE OFFENSE BEING PROSECUTED AS
"WILLFULLY, UNLAWFULLY, AND FELONIOUSLY [AN] ATTEMPT TO DELIVER, DISTRIBUTE TRANSPORT OR
SELL TO ANOTHER, WHITE CRYSTALLINE SUBSTANCE' AND THEREFORE A VERY CLEAR VARIANCE
EXISTED BETWEEN THE CRIME CHARGED AND THE EVIDENCE PRESENTED RESULTING IN THE
PROMULGATION OF AN ERRONEOUS DECISION.
 III.

THAT THE TRIAL COURT ERRED IN HOLDING AND CONVICTING ACCUSED-APPELLANTS ON MERE
INFERENCES AND ASSUMPTIONS OF COMPLETE SALE OR TRANSACTION WHERE EVEN THE EXISTENCE
OF THE SHABU AND THE ALL IMPORTANT BUY-BUST MONEY IS DOUBTFUL CONSIDERING THAT IN OUR
JURISDICTION, NOT ONLY EACH AND EVERY ASPECT AND FACT CLAIMED AS EVIDENCE OF THE
COMMISSION OF A CRIME MUST BE PROVEN BY VERY CLEAR AND CONVINCING EVIDENCE, THE EVIDENCE
OF GUILT MUST BE PROVEN BEYOND REASONABLE DOUBT WHICH SADLY IN THE CASE AT BAR, THE
PROSECUTION FAILED MISERABLY TO PRODUCE.

IV.

THAT THE TRIAL COURT ERRED GRIEVIOUSLY IN NOT RESOLVING ALL DOUBTS, INCONSISTENCIES,
HIGHLY IMPROBABLE AND UNCONVINCING EVIDENCE PRESENTED BY THE PROSECUTION IN FAVOR OF
THE ACCUSED-APPELLANT INOCENTES, TOTALLY IGNORING AND FAILING TO GIVE WEIGHT AND
RECOGNITION TO THE MOST SUPERIOR AND IMPORTANT PRESUMPTION IN LAW AND JURISPRUDENCE,
THAT OF THE PRESUMPTION OF IN[N]OCENCE WHICH OVERRIDES ALL OTHER PRESUMPTIONS, MOST
ESPECIALLY IN THE CASE AT BAR WHERE THE PROSECUTION HA[S] FAILED MISERABLY IN ITS ASSIGNED
TASK OF PRODUCING THAT QUANTUM OF EVIDENCE REQUIRED TO PROVE THE GUILT OF ACCUSED-
APPELLANT RONALDO INOCENTES BEYOND THE SHADOW OF ANY DOUBT.

Furthermore, Aurora Salva Bautista, collaborating counsel who represented both appellants during some part of the trial, submits a
Supplemental Brief 15 in which she makes the following assignment of errors:

1. THE TRIAL COURT ERRED IN NOT RULING THAT THE PROSECUTION FAILED TO IDENTIFY
THE SHABU WHICH CONSTITUTES THE CORPUS DELICTI OF THE OFFENSE CHARGED;

2. THE TRIAL COURT MISERABLY FAILED TO REFUTE THE IRRECONCILIABLE TESTIMONIES

OF THE PROSECUTION WITNESSES SPO1 EMMANUEL MAGALLANES AND SPO1 ROBERT S.
PONGYAN IN RELATION TO THEIR JOINT AFFIDAVIT AS POINTED OUT BY THE ACCUSED-
APPELLANTS IN THEIR MEMORANDUM SUBMITTED BEFORE SAID COURT[;]

3. THE TRIAL COURT ERRED IN RELYING ON THE WEAKNESS OF THE DEFENSE RATHER
THAN ON THE STRENGTH OF THE PROSECUTION EVIDENCE;

4. THE TRIAL COURT ERRED IN RELYING MAINLY ON THE PRESUMPTION OF REGULARITY

OF DUTY PERFORMED RATHER THAN ON THE CONSTITUTIONAL PRESUMPTION OF THE
INNOCENCE OF THE ACCUSED; AND

5. THE TRIAL COURT ERRED IN NOT RULING THAT THE BUY-BUST OPERATION AGAINST
THE ACCUSED-APPELLANTS WAS A MERE FRAME-UP.

In sum, the issues raised by the accused-appellants involve (1) the sufficiency of the prosecution evidence to support their conviction, (2)
the existence of conspiracy between them, (3) the validity of the entrapment ("buy-bust" operation or frame-up), and (4) the alleged
variance between the offense charged and the evidence proffered.

The Court's Ruling

The appeal 16 has no merit. We find, however, that the trial court erred in imposing the proper penalty.

First Issue:

Sufficiency of Prosecution Evidence

The various briefs filed by the appellants similarly aver that the evidence adduced by the prosecution failed to establish their guilty beyond
reasonable doubt. According to them, (1) the money allegedly used by the police to buy the shabu from the appellants was not presented
or identified in court; (2) the shabu itself was not properly identified; and (3) there were material inconsistencies in the testimonies of the
police officers, which could have been clarified by the informant who, however, was not presented as a witness. All these circumstances,
appellants claim, are enough to create doubt as to the occurrence of the alleged crime.

To dispose of the appellants' first argument, we reiterate the rule that the non-presentation of the marked money does not create
a hiatus in the evidence for the prosecution, so long as the sale of the dangerous drugs is adequately proven and the drug itself is
presented before the court. 17 As to the appellants second argument, we hold that the dangerous drugs confiscated from them
during the buy-bust operation were sufficiently identified and offered as evidence. To refresh their memories, it should be
recalled that their counsel 18 during the initial part of the trial agreed to dispense with the direct examination of P/Insp. Isidro
Cariño regarding the test he had conducted on the substances confiscated from the appellants. Thus, the public
prosecutor 19 proceeded to mark the pieces of evidence that were supposed to be presented by said witness: (1) the Request
for Laboratory Examination dated October 22, 1996, submitted to the PNP Crime Laboratory, and the latter's receiving
stamp thereon (as Exhibits B and B-1, respectively); (2) the Physical Sciences Report, stating that such examination yielded
positive results for methamphetamine hydrochloride or shabu (as Exhibit C;) and (3) a sealed blue plastic bag containing
seven (7) plastic sachets, each with undetermined amounts of the methaphemtamine hydrochloride (as Exhibit D). 20 During
its formal offer of evidence, the prosecution submitted said Exhibit D, which was described as the "blue self-sealing envelope
with markings of [']bianchi blue['] containing 232.84 grams of shabu," to "prove the existence of shabu which is the subject
matter of the Information." 21
We deem such offer a substantial compliance with the pertinent rules on evidence. The separate marking of each of the seven sachets,
as insisted by the appellants, is not a must. At any rate, they do not deny that the marked plastic bag contained the packs of shabu that
were confiscated from them.

Material to a prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the
presentation in court of the corpus delicti as evidence. 22 Corpus delicti has two elements: (1) proof of the occurrence of a certain
event — for example, that a man has died or a building has been burned; and (2) some person's criminal responsibility for
the act. 23

The principal witnesses to the commission of the offense for which the appellants are accused clearly established the above elements:
an illegal sale of the regulated drug actually took place both appellants were the authors thereof. The poseur-buyer, SPO1 Emmanuel C.
Magallanes, categorically testified as follows:

Q Now, could you recall . . . any unusual incident that transpired when you were at the office at about
1:00 o'clock in the morning?

A Capt. Bonifacio [was] talking to somebody and told me not to leave.

Q After Capt. Bonifacio talked to that person, what happened?

A He told that the person he [was] talking with will come back and I will be the one to accompany him
to buy [from a certain] Caloy.

Q What else did Capt. Bonifacio [tell] you he talked [about] with that person?

A I [was] the one who talked to that person and Capt. Bonifacio introduced me.

Q So, you were introduced to that informant?

A Yes, ma['a]m.

Q And, were you able to talk to that informant?

A Yes, ma['a]m.

Q What did you talk about?

A The informant told me to wait and the person he [was] talking with [come back and I will return to
the office when I finished talking to, him. The person named Caloy.

Q And, after that, what happened?

A At about 2:10 o'clock, he c[a]me back and told me that [he] already talked to the person named
Caloy.

Q Now, after relaying that information, what did your office do, if any?

A I was ordered to go with that person to meet Caloy.

Q Other than that, what else was the instruction of Capt. Bonifacio?

A Capt. Bonifacio told me to make sure that we will be able to buy shabu.

Q Then, after that, what happened?

A We proceeded [to] Martinez St. cor. Vergara, ma['a]m.

Q Were is that Martinet Street?

A Mandaluyong, ma['a]m.

Q You said that we proceeded to . . . Martinez St., at Mandaluyong[;] who are you referring to as we?

A The informant, ma['a]m.

Q Who else [was] with you, if any?

A Our Team, ma['a]m.

Q Who [were] the members of that Team that you [are] talking about?
A I [was] with SPO4 Basco, SPO1 Pongyan, SPO4 Bernardo, SPO4 Velasco and the others I cannot
remember.

Q Were you able to reach the place, Mr. witness?

A Yes, ma['a]m.

Q Now, what happened when you reached that place?

A A car arrived with two (2) persons.

Q What kind of vehicle . . . arrived?

A It [was] like a Lancer.

Q When the motor vehicle arrived, where were you then positioned?

A We were just standing side by side with the informant because that [was] what we ha[d] agreed
upon.

Q What [were] you wearing at that time, Mr. witness?

A Civilian clothes, ma['a]m.

Q What about the other members of the team, where were they then?

A They were a little bit farther but they saw me.

Q Upon the arrival of the two (2) what happened?

A I was introduced to Caloy Boco.

Q And, how were you introduced by the informant of yours?

A The informant told [me] that "okay ito[,] walang problema[,] gumagamit ito.

Q And, then, what happened after that?

A I asked him if I [could] buy and [he] told me[,] if you have P20,000.00 I will give you.

Q And, what was your response to that [remark of] this Boco?

A I showed him the P20,000. 00, ma['a]m.

Q After you showed the P20,000.00, what happened?

A I asked him if I could examine the shabu.

Q Were you able to examine the shabu?

A He got a pack from the compartment and when I examined it I found it to be positive. I lighted a
cigarette to signal to my companions.

Q What [was] the purpose of lighting a cigarette?

A That [would] be a signal that I [was] holding the evidence.

Q After the pre-arrange[d] signal, what happened?

A I introduced myself that I [was] a police [officer].

Q Then, after introducing yourself as a police officer, what happened?

A My companions approached us, then, pinaligid na po nila, pinaputok na po sila.

Q After ordered him to a shot, who searched?[sic]

A Carlos Boco, ma['am].

Q And, when you searched the question [sic] of Boco, [what] did you [find], if any?
 A Yes, ma['am], on his right leg . . . shabu [was] taped.

Q What else did you find on his body, if any?

A Five (5) pcs. of shabu, ma['am].

Q What about the other person?

24
A Iyong isa po si Pongyan ang nanghuli.

A member of the arresting team, SPO1 Robert Pongyan who personally searched the body of Appellant Inocentes right after his arrest,
testified on the incident as follows:

Q At 1:00 o'clock in the morning of October 22, 1996 could you recall where were you then?

A We were at the headquarters of the District Anti-Narcotics Unit.

Q While you were in your office, could you recall of any unusual incident that transpired?

A Yes, ma['a]m.

Q What was that unusual incident?

A I noticed that our Chief, Sr. Insp. Rodrigo Bonifacio was having a conversation with an informant.

PROSEC. LEONARDO:

Q Did you happen to know what was the nature of the conversation of Bonifacio with that informant?

A It [was] regarding ... narcotics or drug dealing.

Q And after that talk with Bonifacio, what happened?

A Sr. Insp. Bonifacio told us to stand by for possible dispatch.

Q Were you actually dispatch[ed] during that time?

A Yes, ma['a]m.

Q When you were dispatched. you said, "we". Wh[o] [were] you referring [to] as "we"?

A My companions [we]re Sr. Insp. Bonifacio, SPO Bernardo[,] PO3 Enano, SPO Magallanes, Silva
and Sgt. Basco.

Q What was your participation with respect to the team created by Bonifacio?

A I was tasked to be a back-up.

Q How about Magallanes?

A As I know, he was tasked to be the poseur buyer.

Q Now, after dispatching, where did you proceed?

A We proceeded to Mandaluyong City.

Q Where in Mandaluyong City?

A At Brgy. Vergara corner Kalentong.

COURT:

Q Is this Barangay Vergara corner Kalentong or Vergara Street?

A Street, Your Honor.

PROSEC. LEONARDO:

Q Were you able to reach that place of your target?

A Yes, ma['a]m.
Q What happened [when you]; reach[ed] that place?

A Sr. Insp. Bonifacio told us to position our vehicle.

PROSEC. LEONARDO:

Q After positioning your vehicle, what happened?

A We waited.

Q For what?

A Subject.

Q [Did] the subject of your operation [arrive] at the scene?

A Yes, ma['a]m.

Q When the subject person arrived what happened?

A SPO Magallanes together with the informant talked to the subject.

Q You said that the subject arrived[;], did you happen to see how did they arrive in the place?

A They were on hoard a Mitsubishi car.

Q How many were inside that car that arrived?

A Two (2).

Q Two (2) persons?

A Two (2) persons.

Q What [were] their gender[s], male or female persons?

A Two (2) male persons.

Q You said Magallanes and the informant talked to these two (2) male persons. How far were you
when Magallanes and the informant were talking to these male persons[?] How far were you from
them?

A We were about ten (10) to fifteen (15) meters [away].

Q When Magallanes and the informant were talking to the 2 male persons, what happened?

A The subject handed something to SPO Magallanes.

PPOSEC. LEONARDO:

Q How did you know that the subject male person was handling something to Magallanes?

A From our position, we saw their action, their movement from our position.

Q So, it was visible from where you were standing what transpiring [at] the place where Magallanes
and the informant were?

A Yes, ma'am.

Q When you saw that, after that something was handed by the subject to Magallanes, what
happened?

A After that, we saw Magallanes [accost] the subject.

Q After the subject was . . . accosted by Magallanes[,] what happened?

A Our team leader, Sr. Insp. Bonifacio, told us to immediately alight and proceed to where Magallanes
[was].

Q You alighted from the vehicle?

 A Yes, ma['am].

Q After lighting from the vehicle, what happened?

A We rendered assistance to SPO1 Magallanes.

Q When you rendered assistance, what happened?

A I proceeded to the vehicle of the subject together with Enano.

Q Why did you proceed to the vehicle of the subject?

A Because Sr. Insp. Bonifacio told me to secure the car.

Q What did you do after proceeding to the car?

A We introduced ourselves as policemen and frisked the occupant of it.

PROSEC. LEONARDO:

Q You frisked the occupant of the car?

A Yes, ma['am].

Q You mean to tell the Court that you asked the occupant of the car to step out of the car?

A Yes, ma['am].

Q And you said you frisked the persons [—] there were two (2) [—] did you happen to know the
identit[ies] of the persons inside the car?

A It [was] only a certain Boyet, Ma'am.

Q This Boyet, where was he seated while they were inside the car?

A The driver's sea[t]. Ma'am.

Q He was the one driving the car?

A Yes, Ma'am.

Q And this was the person whom you frisked?

A Yes, Ma'am.

Q When you frisked [him], what did you recover, if any?

A We recovered, [to] my personal knowledge . . . a shabu.

Q How [much] shabu [did] you [recover] from this Boyet[?]

A One (1) pack of approximately five (5) grams.

Q From what part of this person of Boyet did you recover the shabu?

A Right front pocket of his shorts. 25

Apparently, there are no material inconsistencies in the testimonies of the two principal prosecution witnesses. Rather, they complement
each other to give a complete picture of how the accused-appellants' illegal sale of the regulated drug transpired, and how the sale led
to their apprehension in flagrante delicto. At the very least, their testimonies establish beyond doubt that regulated drugs were in the
possession of both appellants, who had no authority to possess or sell them.

Under the circumstances, we do not find any necessity for additional corroborating testimony, particularly that of the confidential informant.
Intelligence agents, due to the nature of their work, are often not called to testify in court so as not to reveal their identities publicly. Once
known, they could no longer be used again, and worse, may be the object of revenge by the criminals they implicate. The prevailing
doctrine is that their testimonies are not essential for conviction, nor are they indispensable to a successful prosecution. With the
testimonies of the arresting officers, they would be, after all, merely corroborative and cumulative. 26

Time and again, this Court has ruled that the trial court's findings on the credibility of witnesses and their testimonies are accorded great
weight and respect, in the absence of a clear showing that some facts or circumstances of weight or substance that could have affected
the result of the case have been overlook, misunderstood or misapplied. This is because the lower court had the opportunity to observe
directly the demeanor of the witnesses they testified. 27
 Second Issue:

Conspiracy

Appellant Inocentes asserts that he had no participation in the commission of the crime and that the prosecution miserably failed to prove
that conspiracy existed between him and his co-appellant. He claims that he merely drove for the latter and that the single pack of shabu
allegedly found in his pocket was planted evidence.

It is settled in our jurisprudence that direct proof is not essential to establish conspiracy, as it may be inferred from the acts of the accused
before, during and after the commission of the crime, all of which indubitably point to or indicate a joint purpose, a concert of action and
a community of interest. 28

In the case at bar, both appellants arrived at the crime scene on board the same vehicle. While only Appellant Boco talked to the informant
and the police officer who posed as the buyer, it was Appellant Inocentes who took out the sample shabu from the glove compartment of
the car and handed it over to Policeman Magallanes. When both were frisked right after their arrest, packs of the regulated substance
were found in their respective bodies. Obviously, their behavior and demeanor were indicative of a joint purpose — to sell the shabu.

One who joins a criminal conspiracy adopts in effect the criminal design of his co-conspirators, and he can no longer repudiate the
conspiracy after it has materialized. 29 Conviction is proper upon proof that the accused-appellants acted in concert. The act of
one then becomes the act of all, and each of the accused will thereby be deemed equally guilty as co-principals of the crime
committed. 30

Third Issue:

Buy-Bust Operation or Frame-up?

A buy-bust operation is a form of entrapment, which in recent years has been accepted as a valid means of arresting violators of the
Dangerous Drugs Law. 31 It is commonly employed by police officers as an effective way of apprehending law offenders in the
act of committing a crime. 32 In a buy-bust operation, the idea to commit a crime originates from the offender, without
anybody inducing or prodding him to commit the offense. 33 Its opposite is instigation or inducement, wherein the police or
its agent lures the accused into committing the offense in order to prosecute him. 34 Instigation is deemed contrary to public
policy and considered an absolutory cause. 35

An allegation of frame-up and extortion by police officers is a common and standard defense in most dangerous drug cases. It is,
36

however, viewed by this Court with disfavor, for it can be easily concocted. 37
To substantiate such defense, including
instigation, the evidence must be clear and convincing. 38

In the case at bar, the appellants merely claimed that they were victims of frame-up and extortion by the narcotics agents of the Eastern
Police District. They, however, failed to present sufficient credible evidence to substantiate their claims. They submitted no plausible
reason or ill motive on the part of the arresting officers that could have spurred the latter to collar them in particular. We have held in
numerous cases that frame-up, often imputed to police officers, requires strong proof when offered as a defense, because of the
presumption that public officers acted in the regular performance of their official duties. 39

Moreover, the defense of instigation asserted by Appellant Boco is incompatible with frame-up. In the former, the crime is actually
performed by the accused, except that the intent originates from the mind of the inducer. In frame-up, however, the offense is not
committed by the accused. Precisely, the accused is only framed or set up in a situation leading to a false accusation against him.
Instigation and frame-up, therefore, cannot be present concurrently.

In the absence of proof of any ill motive or intent on the part of the police authorities to falsely impute a serious crime to the appellants,
what must prevail over the latter's self-serving and uncorroborated claim that they have been framed is the presumption of regularity in
the performance of the former's official duties, as well as the doctrine that the findings of the trial court on the credibility of witnesses are
entitled to great respect. 40

Fourth Issue:

Variance Between Offense Charged

and Evidence Proffered

Finally, appellants argue that the Information charged them with violation of Section 21 of the Dangerous Drugs Law, or merely an attempt
to sell the regulated drug without authority of law. Hence, they contend that they cannot be tried and convicted of consummated sale
under Section 15 of the same law, which the prosecution evidence tried to establish.

Such argument is flawed. More particularly, the accused-appellants were charged with violation of Section 21, Article IV of RA 6425, as
amended, committed by "conspiring[,] confederating together and mutually helping one another, without having been authorized by law,
. . . [in] attempt[ing] to deliver, distri[b]ute, transport or sell to another, white crystalline substance . . . found positive . . . for
[m]ethamphetamine hydrochloride . . . ." Said Section 21 reads:

Sec. 21. Attempt and Conspiracy. — The same penalty prescribed by this Act for the commission of the offense shall
be imposed in case of any attempt or conspiracy to commit the same in the following cases:

(a) Importation of dangerous drugs;

(b) Sale, administration, delivery, distribution and transportation of dangerous drugs;

 (c) Maintenance of a den, dive or resort for prohibited drug users;

(d) Manufacture of dangerous drugs; and

(e) Cultivation or culture of plants which are sources of prohibited drugs.

Clearly, the provision covers attempt and conspiracy, both of which were alleged in the Information. This negates any surprise that could
have adversely affected the appellants in their defense. As said earlier, the prosecution evidence has convincingly established that both
appellants conspired to sell the shabu, without authority of law.

Nevertheless, assuming arguendo that conspiracy was not proven, the appellants may still be convicted of the attempt to sell. A mere
attempt to commit a felony is surely subsumed in the full execution thereof. To attempt is to commence the commission of a crime by
overt acts. 41 If one has been proven to have completely carried out all the acts necessary to commit the crime, he has
certainly been proven to have executed the initial act required in an attempt.

In any case, we quote with approval the trial court's comment that a "violation of Section[s] 15 and 21 of the [Dangerous Drugs] law
provides the same penalty." Thus, the appellants could have suffered no prejudice, had they been tried under either one or the other
section.

Proper Penalty

An automatic appeal of a death sentence such as the present case opens the entire record for review. Hence, though not raised as an
issue by the parties, the propriety of the penalty imposed, among others, was looked into by this Court. We find and so hold that the trial
court wrongly sentenced the appellants to death. The penalty prescribed for an attempt or a conspiracy to sell at least 200 grams of shabu
without authority of law, as well as a consummated sale thereof, is reclusion perpetua to death and a fine ranging from P500,000 to P10
million. 42 In accordance with Article 63 (No. 2) of the Revised Penal Code, the lesser penalty is applied when there are
neither mitigating nor aggravating circumstances in the commission of the offense. 43 In the case at bar, the prosecution did
not allege or prove the attendance of any modifying, much less aggravating, circumstance to justify the imposition of the
extreme penalty. Hence, the prison sentence imposable upon the appellants is only reclusion perpetua.

WHEREFORE, the appealed Decision is hereby AFFIRMED with the MODIFICATION that both appellants shall each serve reclusion
perpetua and pay a fine of one million pesos (P1,000,000). 1âwphi 1.nêt

SO ORDERED.

G.R. Nos. 100382-100385 March 19, 1997

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MARIO TABACO, accused-appellant.

HERMOSISIMA, JR., J.:

In four related informations, Mario Tabaco was charged with four counts of Murder for shooting to death on
March 22, 1987 Capt. Oscar Tabulog (Criminal Case No. 10-259), Ex-Mayor Jorge Arreola (Criminal Case No.
10-270), Felicito Rigunan (Criminal Case No. 10-284) and Pat. Romeo Regunton (Criminal Case No. 10-317).
Except for the names of the victims, the informations in these four (4) cases identically read:

That on or about March 22, 1987, in the Municipality of Aparri, Province of Cagayan, and within
the jurisdiction of this Honorable Court, the said accused Mario Tabaco, armed with a gun, with
 intent to kill, with evident premeditation and with treachery, did then and there wilfully,
unlawfully and feloniously assault, attack and shoot one [name], inflicting upon him several
wounds which caused his death.

Contrary to Law. 1

In Criminal Case No. 10-316, accused was charged in the following information with the complex crime of
Homicide and Frustrated Homicide for shooting to death Jorge Siriban, Jr. and the wounding of Sgt. Benito
Raquepo:

That on or about March 22, 1987, in the municipality of Aparri, province of Cagayan, and within
the jurisdiction of this Honorable Court, the said accused, Mario Tabaco, armed with a gun,
with intent to kill, did then and there wilfully, unlawfully and feloniously assault, attack and
shoot Jorge Siriban, Jr., and S/Sgt. Benito Raquepo, inflicting upon them wounds on their
bodies, which wounds sustained by Jorge Siriban, Jr., caused his death.

That the accused had performed all the acts of execution (with respect to the victim Sgt. Benito
Raquepo) which would have produced the crime of Homicide as a consequence but which
nevertheless, did not produce it by reason of causes independent of his own will. 2

All cases were consolidated before Branch 10 of the Regional Trial Court of Aparri, Cagayan.

The mass of evidence for the prosecution, as found by the trial court, is as follows:

In the evening of March 22, 1987, the 117th PC stationed at Aparri, Cagayan, under then Lt.
James Andres Melad, sponsored a cock derby, under the name of Jose Ting, at the Octagon
Cockpit Arena located at Aparri, Cagayan.

This being so, peace officers in uniform with long firearms were assigned as guards to maintain
peace and order at the cockpit arena namely: (1) Sgt. Benito Raquepo; (2) CIS Roque P.
Datugan, both from the 117th PC and (3) Pat. Andres Semana, INP, Aparri, Cagayan. Accused
Mario Tabaco who was in civilian clothes claims to have been also assigned by his
Commanding Officer of 117th PC, to verify the presence of NPAs and assist in the protection
of VIPs in the cockpit arena, bringing with him his M-14 issued firearm.

Other peace officers who came to participate were: (1) Policeman Mariano Retreta of INP,
Buguey, Cagayan, who arrived with the deceased Jorge Siriban and Licerio Antiporda, Jr.,
Licerio Antiporda II; (2) Sgt. Rogelio Ferrer of 117th PC Company; (3) Policeman Romeo
Regunton (deceased) who was also armed, arrived in company with the deceased Ex-Mayor
Arreola; (4) Fireman Rogelio Guimmayen, INP Buguey; (5) Pat. Barba; and (6) CIC PC Paragas.

At about nine (9) o'clock in the evening of same date, the group of the late Mayor Jorge Arreola
of Buguey, Cagayan, arrived at the cockpit arena. His companions were (1) Antonio Villasin;
(2) Rosario Peneyra; (3) victim Loreto Pita, Jr. and/or five (5) of them including the Mayor. They
occupied and were (4th row) north western part cockpit-gate. Others seated with the Mayor
were: (1) the late Capt. Oscar Tabulog; (2) the late Pat. Romeo Regunton, who was at the back
of the mayor; (3) the late Felicito Rigunan. The accused CIC Tabaco was seated on the arm of
the bench situated at the lower portion of the arena about more than three (3) meters away,
(infront and a little bit in the west), from the place where the late Mayor and his group were
seated (at the 4th row of seats upper portion). During the ocular inspection conducted, the
Court noticed the distance to be more than three (3) meters, and/or probably 4-5 meters.

At about ten (10) o'clock 1987, while the accused Mario Tabaco was seated as described above,
he suddenly without warning or provocation, shot the late mayor Jorge Arreola, with his M-14
rifle, followed by several successive burst of gunfire, resulting in the shooting to death of the
late Mayor Arreola, Capt. Oscar Tabulog, Felicito Rigunan and Pat. Romeo Regunton, although
the latter managed to run passing through the western gate near the gaffers cage but was
chased by accused Tabaco. Regunton was later found dead inside the canteen of Mrs. Amparo
Go inside the Octagon cockpit arena.

Pat. Mariano Retreta of INP Buguey, who was then at the Co's canteen, saw the accused going
out rushing from the cockpit arena, at a distance of one meter. Pat. Retreta is a relative and
neighbor of the accused Tabaco in Buguey, Cagayan. He tried to pacify Tabaco telling him
"what is that that happened again Mario." Meanwhile, Sgt. Benito Raquepo of 117th PC, and
one of those assigned to maintain peace and order at the Octagon cockpit arena, who was at
the canteen taking snacks, heard five (5) successive gun reports coming from inside the
cockpit arena. In a little while, he saw the accused Tabaco coming from inside the cockpit
arena. Raquepo advised Tabaco — "Mario relax ka lang" — "Mario keep calm." They stood face
to face holding their rifles and when Tabaco pointed his gun towards Sgt. Raquepo, Pat. Retreta
 grappled for the possession of the gun to disarm Tabaco, and in the process, the gun went off
hitting Sgt. Raquepo and also the late Jorge Siriban who happened to be near Raquepo. Siriban
died on the spot while Raquepo survived his wounds on his legs due to adequate medical
treatment.

There were other persons injured that evening namely: (1) Antonio Chan — injured on his right
foot; (2) Salvador Berbano — injured on his right forearm and on his right abdomen and (3)
Rosario Peneyra on his Face and right shoulder. But, the three, did not file their complaints. 3

Upon the other hand, the evidence for the defense as stated in the Brief for the Accused-appellant is as
follows:

Ordered by his commanding officer in the 117th PC Company to assist in the maintenance of
peace and order at the Octagon Cockpit Arena located at Talungan, Aparri, Cagayan on March
22, 1987, accused Mario Tabaco with his officially issued M-14 rifle and with the basic load of
ammunition went to the Octagon Cockpit arena on March 22, 1987 in compliance to the orders
of a superior officer arriving thereat at about 12:00 o'clock noon, more or less. He directly went
inside the cockpit arena to make some observations and found out that there were several
persons inside the said cockpit who were in possession of firearms, some short and some
long, and were seen in different places and/or corners of the cockpit. Accused did not bother
to verify as to why the said persons were allowed to carry their firearms because of his
impressions that if they did not have the authority, the guards of the main gate of the cockpit
would surly have confiscated the same from them. It was his belief then that they may have
come from other agencies of the government, assigned to help in the maintenance of peace
and order in the cockpit. Accused thus seated himself at the lowermost seat (first step) of the
slanted bleachers of the Octagon Cockpit arena on March 22, 1987.

At about 9:00 o'clock that very night of March 22, 1987, while accused was seated at the
lowermost seat of the slanted bleachers of the Octagon Cockpit arena, he heard a gun report
fired atop his head. Having been officially assigned to help in the maintenance of peace and
order in the cockpit and that his presence must be known, his immediate reaction upon hearing
the gun report was to fire a warning shot in the air and directed to the ceiling and/or roof of the
Octagon cockpit arena. After firing a warning shot, his warning was answered by burst of gun
fire coming from different directions inside the cockpit arena, for which reason, he forced to
leave and rush outside, holding his M-14 rifle with the muzzle pointed downwards. As he
(accused) rushed towards the main gate of the cockpit arena, Mariano Retreta and Sgt. Benito
Raquepo saw him and who told him, (accused) to relax lang. Accused testified that when
Mariano Retreta and Sgt. Benito Raquepo told him to relax lang, he all the time thought that the
gun reports fired inside the cockpit arena was nothing to said persons. Accused however,
insisted to go out, but in so doing, Mariano Retreta pressed the gun which he was holding
downwards and grabbed said gun from accused. As the gun was pressed by Mariano Retreta,
said gun went off, hitting Sgt. Benito Raquepo and the death of Jorge Siriban, Jr. That because
of such incident, accused had to run away, out of fear to Sgt. Benito Raquepo and the family
of Jorge Siriban who may lay the blame on him. The following morning, accused surrendered
to the police authorities of Lallo, Cagayan, who happened to pass by, not on account of the
death of Ex-Mayor Jorge Arreola, Capt. Oscar Tabulog, Felicito Rigunan and Oscar Regunton
which he did not know at the time he surrendered, but on account of the death of Jorge Siriban,
Jr. and the injury sustained by Sgt. Benito Raquepo. 4

After trial, the court a quo, in a joint decision dated January 14, 1991, found accused-appellant guilty as
charged on all counts. In giving credence to the version of the prosecution over that of accused-appellant, it
found that:

From the evidence adduced, it is easily discernible that the prosecution and defense cannot
agree on what actually transpired that night of March 22, 1987, at the Octagon Cockpit Arena,
Aparri, Cagayan leading to the shooting to death of subject victims. For, while the prosecution
maintains that it was the accused Mario Tabaco who shot the victims, the defense insists that
he is not the assailant, but somebody else or others, since the accused merely fired a warning
shot upwards the roof of the cockpit arena.

In fine, the Court is called upon to resolve the issue of credibility versions. "Where there are
directly conflicting versions of the same incident, the Court, in its search for the truth, perforce
has to look for some facts and circumstances which can be used as valuable tools in evaluating
the probability or improbability of a testimony for after all, the element of probability is always
involved in weighing testimonial evidence. (Carolina Industries, Inc. vs. CMS Stock Brokerage,
Inc., et al., L-46908, May 17, 1980, 97 SCRA 734; Lacsan vs. Court of Appeals, et al., L-46485,
November 21, 1979, 94 SCRA 461, both citing the case of People vs. Boholst Caballero, L-2349,
November 25, 1974, 61 SCRA 180).
 Towards this end, the prosecution presented three (3) eyewitnesses, namely: Antonio Villasin,
Rosario Peneyra and Fireman Rogelio Guimmayen in the shooting to death of the deceased
victims, Ex-Mayor Jorge Arreola, Capt. Oscar Tabulog, Romeo Regunton and Felicito Rigunan.
Also, the prosecution presented Sgt. Benito Raquepo, Pat. Mariano Retreta and PC Sgt. Rogelio
Ferrer, and three (3) eyewitnesses in the shooting to death of Jorge Siriban and the wounding
of Sgt. Raquepo. So too, the prosecution presented PC Sgt. Antonio Domingo, Pat. Andres
Semana, PC Sgt. Jose Algeria and Pat. Merlin Bautista, as corroborative witnesses in both
situational cases/incidents. As well stated in the above findings of facts, prosecution witnesses
Antonio Villasin and Rosario Peneyra actually saw the accused Mario Tabaco stood up from
his seat at the lower front row and in port arm position directed his M-14 rifle towards the place
of the late Mayor Arreola, and his group at the 4th row upper portion of the bleachers and fired
three successive automatic gun shots that felled Mayor Jorge Arreola, Capt. Oscar Tabulog,
Pat. Romeo Regunton and one Felicito Rigunan. This was corroborated by prosecution witness
Fireman Rogelio Guimmayen who was then ten (10) meters away from the accused, which was
not far, considering that the cockpit arena was well lighted at that time.

Not only that, immediately after the gun burst of automatic fire, the accused was seen coming
out rushing from inside the cockpit arena by INP Pat. Mariano Retreta and PC Sgt. Raquepo,
the former being a relative and neighbor, pacified accused Tabaco, telling — "what is that
happened again Mario," while the latter told him — "Mario relax ka lang keep calm." After which
Mariano Retreta grappled for the possession of the gun assisted by PC Sgt. Rogelio Ferrer
when Tabaco refused to stop. Sgt. Ferrer got the gun M-14 and surrendered it to his
Commanding Officer, as corroborated by Sgt. Antonio Domingo, while in the process of
disarming the accused Mario Tabaco, when the gun went of, hitting the deceased victim Jorge
Siriban and Sgt. Raquepo. 5

The accused admitted that the M-14 rifle which he brought with him to the cockpit arena was heavily loaded,
but when the gun was taken from his possession by Pat. Retreta and PC Sgt. Ferrer, the gun's magazine was
already empty.

The court a quo said further:

ATTY. VILLENA:

Q: When you took that M-14 from the accused, do you remember if it had a
magazine that time?

A: Yes, sir with magazine.

Q: Do you have the magazine now?

A: It is with 117th PC Company, sir.

Q: After taking that M-14 from the accused, did you examine the rifle?

A: Yes, sir, I examined it.

Q: Did you examine the magazine of that rifle?

A: Yes, sir.

Q: Did you examine if there are live bullets?

A: No live bullets, sir. (TSN, direct examination, Sgt. Ferrer, pp. 44-45, March 26,
1990 session, stenographer L. Tamayo).

Further, Sgt. Ferrer continued:

PROSECUTOR ATAL:

Q: You likewise mentioned in your direct examination that when you

surrendered this gun, M-14, and this magazine, there were no live ammunitions
in the magazine?

A: There were two remaining bullets, sir.

Q: How many bullets in all?

 A: Twenty, sir.

Q: You said you heard first seven gun reports?

A: Yes, sir I heard seven gun reports. (TSN, continuation of direct examination,
Sgt. Ferrer, May 14, 1990 session, Stenographer L. Tamayo).

MORE, there is evidence that empty/spent shells of bullets were found inside the
cockpit arena (Exh. "R" & "R-l", pp. 157-158, record).

ATTY. ARRIOLA:

Q: Showing to you Exh. "R", do you know whose picture is this?

A: Picture of spent shells.

Q: How about Exh. "R-l", do you know what is this?

A: The same, sir spent shells. (TSN, PC/CIS Sgt. Investigator Jose Algeria, p. 29,
Oct. 1, 1990 session, Stenographer L. Tamayo).

Finally, another circumstance which maybe considered as adverse against the accused, is the
fact that he was really arrested and not that he voluntarily surrendered as appearing in the INP
Lallo Police Blotter, as testified to by Pat. Melin Bautista (Exh. "S", p. 188, record).

Furthermore, it appears that the same accused Mario Tabaco, has still a pending case for
murder before Branch 6, of this Court. (Exh. "T", p. 187, record).

The Court is impressed with the testimonies of the three prosecution eyewitnesses namely:
Antonio Villasin, Rosario Peneyra and INP Fireman Rogelio Guimmayen who narrated their
versions of the incident with ring of truth, which are both clear and convincing, in regard to the
shooting to death by accused Mario Tabaco of the deceased victims Ex-Mayor Jorge Arreola
(Crim. Case No. 10-270), Capt. Oscar Tabulog (Crim. Case No. 1259), Pat Romeo Regunton
(Crim. Case No. 10-317) and the late Felicito Rigunan (Crim. Case No. 10-284).

Such positive testimonies were corroborated by the testimonies of PC Sgt. Raquepo, PC Sgt.
Ferrer and Pat. Mariano Retreta, who saw the accused rushing outside the cockpit arena
holding his M-14 rifle, immediately after the burst of successive and automatic gunfire inside
the cockpit arena. Although they have not seen the accused shoot the four victims (Arreola,
Tabulog, Rigunan and Regunton), yet their corroborative testimonies constitute sufficient
combination of all circumstances, so as to produce a conviction of guilt beyond reasonable
doubt. (People vs. Pimentel, 147 SCRA 251; People vs. Trinidad, 162 SCRA 714), even as such
circumstances proved reasonable leads to the conclusion pointing to the accused Tabaco, to
the exclusion of all others, as the author of the crime. (People vs. Magallanes, 147 SCRA 92;
People vs. Macatana, 161 SCRA 235). And, in the face of all these circumstances, the burden
of proof to establish his innocence LIES on the accused, as the ONUS PROBANDI from that
moment is now shifted to the accused. (Dulpo vs. Sandiganbayan, 150 SCRA 138). A resort to
circumstantial evidence is in the very nature of things, a necessity, and as crimes are usually
committed in secret and under conditions where concealment is highly probable, and to
require direct testimony would in many cases result in freeing criminals and would deny the
proper protection of society. (People vs. ROA, 167 SCRA 116).

As to the death of Jorge Siriban (Crim. Case No. 10-316) and the wounding of Sgt. Raquepo,
there is no adventure of doubt, that accused Mario Tabaco was the author of the crime charged
and thus be held responsible for the same. The evidence adduced in this case is overwhelming,
coming no less from accused's brothers PC personnel, who, aside from their direct
testimonies, are entitled to the settled rule that they have regularly performed their official duty.
(Section 5(M), Rule 131, Revised Rules of Court).

Accordingly, the Court is not impressed with the defense put up by the accused, even as it
does not inspire confidence, hence, the same deserves no credence.

The accused contends that he merely fired his gun up towards the roof, and that he could have
not shot the four (4) deceased victims with the group of Ex-Mayor Arreola considering the
elevation of the 4th step or row in the upper bleachers of the cockpit arena, in relation to where
the accused was, the front row, in much lower elevation. The accused further contends that he
could not have shot aforesaid victims, as maybe gleaned from the testimony of Dr. Rivera,
especially to wound No. 2, inflicted upon the body of the late Mayor Arreola.
 The Court believes otherwise. In the first place, the three (3) eyewitnesses Antonio Villasin,
Rosario Peneyra and INP Fireman Rogelio Guimmayen, testified that they saw the accused
stood up from his seat and directed his gun M-14 towards the group of Ex-Mayor Arreola who
were then at the upper 4th row of cemented seats at the bleachers. They could have been
inaccurate of the distance of meters, as it could have been around 5 meters from where the
accused stood up, which is a little bit west of the group of Ex-Mayor Arreola, who were then
facing south, face to face with the accused. This is true and the same will jibe with the findings
of Dr. Rivera, where the gun shot wounds inflicted upon the body of the late Capt. Tabulog,
were on the left portion of his forehead front to back (Wound No. 1); Wound No. 2, in his left
temple; Wound No. 3, below his right clavicle of his right shoulder and Wound No. 4, on his left
thigh downward.

In the case of the late Mayor Arreola his wounds are: Wound No. 1, is on the left side of his
head above the hairline; Wound No. 2, right base of his neck and exited at the upper shoulder
base through and through. Wound No. 3, was on his left lower abdomen and his lower back as
exit for wound Nos. 1 and 2, the relative position of the assailant and the victim is face to face,
so with Wound No. 3. For wound No. 2, the point of entry is higher than the point of exit, but
there is a possibility that the victim Arreola, probably bent forward and the bullet ricocheted.

It must be noted that the seats in the upper bleachers where the group of the late Mayor stayed
were all cemented including their back rests and the bullets fired from the gun of the accused
must have rebounded or deflected from surface to surface, on the cemented back rests and
seats hitting wound No. 2, on the body of the Mayor and the bodies of Romeo Regunton and
Felicito Rigunan. The bullets RICOCHETED, at the place where the group of the Mayor stayed.
Anent the cemented railguard dividing the lower and upper bleachers, the same is not too high
so as to obviate the possibility of hitting the group of the late Mayor Arreola, especially as in
this case, when the accused stood up from his seat and fired at his victims. Witness Rosario
Peneyra testified that his wound on his face and right abdomen must have been caused by the
debris of the said cemented railguard which was hit by the bullets.

In the case of the death of Jorge Siriban, there is not much dispute as the evidence adduced is
overwhelming and even the defense admits that Siriban died due to gunshot wounds —
inflicted upon him during the grappling of the subject gun (Exh. "K").

The Court believes in the reliability and intrinsic credibility of the prosecution witnesses, there
being no competent evidence presented for them to falsely testify against the accused. There
is no issue of motive, as the accused was clearly and positively identified.

All told, the Court believes and so holds that herein accused Mario Tabaco is the author/culprit
in the shooting to death of the deceased victims, Jorge Arreola, Oscar Tabulog, Felicito
Rigunan and Romeo Regunton, as well as the deceased Jorge Siriban and the wounding of
Benito Raquepo. 6

The dispositive part of the decision reads:

WHEREFORE, prescinding from the foregoing, and fortified by the balm of clear judicial
conscience, the Court finds the accused Mario Tabaco guilty beyond reasonable doubt of all
the crimes charged against him:

1. In Criminal Cases Nos. (a) 10-259 (Oscar Tabulog); (b) No. 10-270 (Jorge Arreola); (c) 10-284
(Felicito Rigunan); and (d) 10-317 (Romeo Regunton), involving four (4) murder victims, but
declared to have been prosecuted in one Information; the same being a complex crime under
Art. 248, Revised Penal Code, the accused Mario Tabaco is sentenced to a single
penalty of RECLUSION PERPETUA, in its maximum period, with all the accessory penalties
provided for by law, and to pay the heirs of the deceased victims — Oscar Tabulog, Felicito
Rigunan and Romeo Regunton, the amount of P50,000.00 each for a total of P150,000.00
subject to the lien herein imposed for payment of the appropriate docket fees if collected,
without subsidiary imprisonment in case of insolvency. However, in Criminal Case No. 10-270,
the accused Mario Tabaco is further ordered to pay the heirs of the late Mayor Jorge Arreola,
the grand total amount of P633,500.00, by way of total civil liability, subject to the lien herein
imposed for payment of the appropriate docket fees, in case of successful collection, both
without subsidiary imprisonment in case insolvency.

2 In Criminal Case No. 10-316 for Homicide with Frustrated Homicide, the accused Mario
Tabaco is sentenced to suffer an indeterminate penalty ranging from, ten (10) years and one
(1) day Prision Mayor as MINIMUM, to Seventeen (17) years, Four (4) months, one (1) day
of RECLUSION TEMPORAL as MAXIMUM, and to pay the heirs of the deceased Jorge Siriban,
the amount of P50,000.00, by way of death indemnity, plus P30,000.00 to Sgt. Benito Raquepo,
by way of medical expenses incurred, subject to the lien herein imposed for payment of the
 appropriate docket fees in case of successful collection; both without subsidiary
imprisonment in case of insolvency.

3. The M-14 rifle (Exh. "K" and "K-2") the corpus delicti, presently deposited with 117th PC
Company, Aparri, Cagayan, is hereby ordered forfeited in favor of the government; Perforce,
the Commanding Officer of the 117th PC, Aparri, Cagayan, is peremptorily ordered to deposit
to the Acting Branch Clerk of Court of this court, the said M-14 rifle with magazines, for proper
disposition in accordance with law and the rules.

4. The accused to pay the costs.

5. In the service hereof, the accused shall be entitled to the full length of time, he underwent
preventive imprisonment (March 23, 1987), provided he voluntarily agreed in writing to abide
by the same disciplinary rules imposed upon convicted prisoners, otherwise, he shall be
credited to only four-fifth (4/5) thereof. (Art. 29, NCC; as amended by RA 6127, June 17, 1970;
U.S. vs. Ortencio, 38 Phil. 341; People vs. Chavez, 126 SCRA 1).

SO ORDERED. 7 (Emphasis ours)

Notwithstanding the single penalty imposed by the trial court, accused still interposed the present appeal on
the following grounds:

(1) The trial court erred in convicting Mario Tabaco of the crime of murder in connection with
the deaths of Oscar Tibulog, Jorge Arreola, Felicito Rigunan, and Romeo Regunton.

(2) The trial court erred in holding Mario Tabaco liable for homicide on the death of Jorge
Siriban and the injury sustained by Benito Raquepo.

(3) The trial court erred in not giving credence to the testimony of accused-appellant Tabaco.

The pivotal issue presented in this case is one of credibility. Time and again, we have ruled that when the
issue hinges on the credibility of witnesses vis-a-vis the accused's denials, the trial court's findings with
respect thereto are generally not disturbed on appeal, 8 unless there appears in the record some fact or
circumstance of weight and influence which has been overlooked or the significance of which has been
misinterpreted. 9 The reason for the rule is eloquently stated in the case of People vs. de Guzman, 10 thus:

In the resolution of factual issues, the court relies heavily on the trial court for its evaluation of
the witnesses and their credibility. Having the opportunity to observe them on the stand, the
trial judge is able to detect that sometimes thin line between fact and prevarication that will
determine the guilt or innocence of the accused. That line may not be discernible from a mere
reading of the impersonal record by the reviewing court. The record will not reveal those tell-
tale signs that will affirm the truth or expose the contrivance, like the angry flush of an insisted
assertion or the sudden pallor of a discovered lie or the tremulous mutter of a reluctant answer
or the forthright tone of a ready reply. The record will not show if the eyes have darted in
evasion or looked down in confession or gazed steadily with a serenity that has nothing to
distort or conceal. The record will not show if tears were shed in anger, or in shame, or in
remembered pain, or in feigned innocence. Only the judge trying the case can see all these and
on the basis of his observations arrive at an informed and reasoned verdict. 11

After a careful examination of the records, we find no ground or reason to set aside or disturb the trial court's
assessment of credibility of the eyewitnesses when they testified pointing to accused-appellant as the
assailant in the shooting of the group of Ex-Mayor Arreola and his companions.

1. Eyewitnesses Antonio Villasin and Rosario Peneyra, who were with the group of Ex-Mayor Arreola on that
fateful night of March 22, 1989, categorically testified that it was accused-appellant, whom they positively
identified in court, who fired his M-14 Rifle at their direction hitting the ex-mayor and his companions.

Villasin's testimony on this point is as follows:

COURT:

Q: You heard gun report, what can you say?

A: I saw that he was the one who made the gun report, sir.

ATTY ARRIOLA:

Q: Who was that "he" you are referring to?

 A: Mario Tabaco, sir. (p. 19, tsn, March 19, 1990)

Q: Why do you say that Mario Tabaco was the one from whom those gun reports
come from?

A: Because he was the only person from whom I saw a gun, sir.

Q: What did you do also upon hearing those gun reports?

A: I had to seek shelter, sir.

Q: What happened to Ex-Mayor Arreola?

A: He was hit, sir.

PROSECUTOR MIGUEL:

Q: You said that the accused shot Ex-Mayor Arreola, what kind of weapon did
he use if you know?

A: M-14, sir.

xxx xxx xxx

Q: After the incident (precedent) have you come to learn what happened to
Regunton?

A: I came to know that he was dead, sir.

Q: Was that all you gathered?

A: Also Capt. Tabulog, sir.

xxx xxx xxx

Q: How many shots did you hear?

A: Three (3) shots, sir.

Q: All those three (3) shots were directed to Ex-Mayor?

A: Yes, sir.

Q: You heard three shots according to you, was that successive or automatic?

A: Successive, sir.

Q: You were seated at the left side of Ex-Mayor Arreola, who was seated on his
right side?

A: None, sir.

xxx xxx xxx

Q: Mr. witness, you said that you saw the deceased holding a gun when you first
heard gun shot, will you please describe the stands (position) of the accused?

A: Like this. (The witness demonstrated that the accused was standing on a forth
(port) arm position).

xxx xxx xxx

Q: What did he do with the gun when you saw him?

A: He fired the gun, sir.

 Q: To what the gun was directed when he fired the gun?

A: To Ex-Mayor Arreola, sir.

ATTY. VILLENA:

Q: You said earlier that after the incident you left the cockpit and returned, when
you returned, what did you see?

A: I saw two dead persons, sir.

Q: Whose cadavers were these that you saw?

A: The cadavers of Ex-Mayor Arreola and Capt. Tabulog, sir.

Q: How far was the cadaver of Tabulog to Arreola?

A: Less than a meter, sir.

xxx xxx xxx

Q: When you saw the corpse of Capt. Tabulog, can you identify the person
passing as you mentioned?

A: They have similarity, sir.

xxx xxx xxx

Q: When you heard first gun shot, can you tell the position of Arreola, you and
your companions?

A: We were sitting at the backrest of the 4th seat, sir.

Q: Where were you facing?

A: We were facing south the arena.

Q: Where did the first gun shot came from?

A: It came from Mario Tabaco, sir.

Q: From what direction?

A: Infront of us, sir.

Q: Where was he, was he in your front?

A: He was in the first row of seats.

Q: After the first gun shot, what happened?

A: Somebody was killed, sir.

Q: Who was that?

A: Ex-Mayor Arreola, sir.

xxx xxx xxx

COURT:

Q: How many gun shot reports did you hear?

A: Many, sir.

ATTY. VILLENA:
 Q: You said that you heard more gun shots, can you tell the nature, was there in
succession or automatic?

A: Automatic, sir.

xxx xxx xxx

Q: Can you tell us your previous occupation?

A: An army man, sir.

Q: How long have you been employed with the army?

A: Five (5) years, sir.

Q: As an army before, have you ever been handled an M-14?

A: Yes, sir.

Q: Can you tell us if you are familiar with a M-14 being fired?

A: Yes, sir.

Q: Now, you said earlier that you heard many more shots after you run, would
you say that these gun shots you heard were fired from M-14 rifle?

A: Those are that came from M-14, sir.

Q: Where were you at the time when you heard the automatic gun shot?

A: I was outside the cockpit, sir. 12

On cross-examination by the defense counsel, witness Villasin testified, thus:

ATTY. CONSIGNA:

Q: You said that after the first gun shot or gun report, Mr. Tabaco was on the
first seat downward, is it not?

A: Mr. Tabaco placed his left foot on the first seat aiming his gun, sir.

Q: Directly toward the first seat, is that what you mean?

A: It was directed to Ex-Mayor Arreola.

xxx xxx xxx

Q: I want to make it clear, Mr. witness, it was the first gun that you went to hide
yourself at the gate of the cockpit, is that correct?

A: After the 3rd gun shot, sir.

Q: And these three (3) gun reports, they were in a single successive shot, is it
not Mr. witness?

A: Yes, sir.

xxx xxx xxx

Q: That person who allegedly passed by you or infront of you prior to the first
gun report, did you notice if he had a gun with him?

A: He passed by our back, sir.

xxx xxx xxx

 Q: And that person according to you was still there when the late Mayor Arreola
was shot?

A: He was directly behind him when the gun reports were made, sir.

Q: You mean to say the first gun report?

A: Yes, sir.

Q: And that first gun report was hit Ex-Mayor Arreola?

A: The three gun reports hit the Mayor, sir. 13

For his part, Peneyra testified as follows:

ATTY. ARRIOLA

Q: Do you remember what particular place of the cockpit when you go with
Mayor Arreola?

A: Yes, sir.

Q: What part of the cockpit?

A: We went up to the bleacher, sir.

Q: Do you remember how the bleachers were arranged inside the cockpit?

A: Yes, sir.

Q: How were they arranged?

A: In rows, step by step, sir.

COURT:

Q: How many rows?

A: Four rows, sir.

ATTY. ARRIOLA:

Q: And what row did you stay together with the late Mayor Arreola?

A: The late Mayor Arreola and Antonio Villasin took the 4th step, sir.

Q: And how about you?

A: We stood at their back west of them, sir.

Q: By the way, can you tell to the court what were your respective position of
the place where you stayed?

A: The late Mayor Arreola and Antonio Villasin sat at the backrest of the fourth
step, sir.

Q: And how about you, where did you stay also?

A: I stood at the right back of Mayor Arreola, sir.

Q: And how about Romeo Regunton?

A: He also stayed at the back of Mayor Arreola, sir.

xxx xxx xxx

 Q: While you were in that position together with your companions, do you
remember if there was untoward incident that happened?

A: Yes, sir.

Q: What was that untoward incident that happened?

A: That was the time when Mario Tabaco shot the late Mayor Arreola, sir.

Q: Do you know what did Mario Tabaco use in shooting the late Arreola?

A: Yes, sir.

Q: What kind of firearm?

A: M-14, sir.

Q: And do you know if Mayor Arreola was hit when Mario Tabaco shot him?

A: Yes, sir.

Q: How do you know that Mayor Arreola was hit?

A: Because I saw it, sir.

Q: What did you do also?

A: When Mayor Arreola was already dead, I sought cover because I was also
wounded.

Q: Do you know what happened also to Romeo Regunton?

A: Yes, sir.

Q: What happened to him?

A: When I was wounded he also said, "uncle I was also wounded."

Q: What did you tell when he told you that?

A: I told him, "you seek cover also my son".

Q: How did Romeo Regunton took cover?

A: He moved slowly by dragging his body along the ground, sir.

xxx xxx xxx

Q: By the way, how far were you from Mario Tabaco who fired upon the person
of Mayor Arreola?

A: Probably more than 3 meters, sir. 14

On cross-examination, this witness testified as follows:

ATTY. CONSIGNA:

Q: When for the first time when you were already in the cockpit arena did you
see the accused Mario Tabaco?

A: Before the shooting, sir.

Q: And approximately how many minutes or seconds did you see Mario Tabaco
for the first time prior to the shooting incident?

A: Probably 5 minutes before, sir.

 Q: And in that place of the cockpit arena have you seen the accused herein Mario
Tabaco?

A: He sat on the first row of the seats.

Q: And sitting on the first row of the bleachers, on what part of the cockpit arena
did Mario Tabaco, the accused sit?

A: He sat a little bit west of us, sir.

COURT:

Q: How far?

A: Probably more than 3 meters, sir.

Q: A little bit to the west, do I get from you that he was seated on the western
part of the cockpit?

A: A little to the west, sir.

Q: An you together with the late Mayor Arreola were also on the western part of
the cockpit?

A: We were on the northwest.

Q: Mario Tabaco, therefore, the accused in these cases was not directly in front
of you?

A: A little bit west of us, sir.

Q: It was on that position of the accused Mario Tabaco and your position with
the late Arreola on the northwest when you according to you saw Mario Tabaco
fired his gun, is that what you mean?

A: Yes, sir.

Q: That the accused Mario Tabaco was on the first row when he allegedly shot
on Mayor Arreola who was on 4th row, is that what you mean?

A: Mario Tabaco stood up and faced us, sir.

Q: So while Mario Tabaco stood up and faced towards the direction where you
were together with the late Mayor Arreola still Mario Tabaco was on the floor of
the cockpit arena?

A: Yes, sir, on the cemented floor.

Q: And immediately after you heard the first shot coming from the accused Mario
Tabaco considering that you were right behind the late Mayor Arreola, as you
have stated in your direct examination you immediately sought cover?

A: I only lay flat to the floor of the cockpit when Mario Tabaco fired three (3)
shots.

xxx xxx xxx

Q: At the time you laid flat facing down and you did not come to know that Mayor
Arreola was dead already?

A: Why not, the first and second shots, I know him that he was already dead.

Q: And the three (3) shots that you heard were all directed towards Mayor
Arreola?

A: Yes, sir, in our place.

 xxx xxx xxx

COURT:

Q: To whom the 3rd shot directed?

A: In our place, sir.

Q: No person was involved on the 3rd shot?

A: That was also the time when Romeo Regunton came toward me and told me
that he was also hit.

xxx xxx xxx

COURT:

Q: You don't know the person who shot him?

A: It was Mario Tabaco because he was still firing then, sir.

Q: You do not know the person who shot him?

A: It was Mario Tabaco because he was still firing then, sir. 15

The above testimonies of Villasin and Peneyra pointing to accused-appellant as the assailant in the shooting
of the ex-mayor and his companions were corroborated further by the testimony of another eyewitness in the
person of Rogelio Guimmayen. His account of the incident is as follows:

PROSECUTOR ABAD:

xxx xxx xxx

Q: How far were you from Tabaco when you saw him holding that gun?

A: More or less ten (10) meters, sir.

Q: Where was he at that specific time and place?

A: Inside the cockpit, sir.

Q: Where were you also?

A: I was at the stairs, sir.

Q: When you saw him what happened if any?

xxx xxx xxx

A: When he entered he stopped and then the gun fired and that was the time
when I got down, sir.

Q: Did you see to whom he was directing the gun?

A: It was directed to the Mayor's place, sir.

Q: How far was the Mayor from the accused Mario Tabaco?

A: More or less three (3) meters only. There was only one bench between them,
sir.

Q: Did you see the accused firing his gun towards the Mayor?

A: With his first shot which was directed to the Mayor that was the time I got
down to hide myself, sir. 16
On cross-examination, this witness testified as follows:

ATTY. CONSIGNA:

Q: So, it was at the time you were inside the cockpit arena that you heard
gunfire?

A: Yes, sir.

Q: And you did not see who fired that gunfire while you were inside the cockpit
arena?

A: When I was inside, I saw Mario Tabaco pointing a gun to the Mayor and the
gun went off and that's the time I took cover, sir.

xxx xxx xxx

Q: And that was the last time you heard burst of gunfire inside the cockpit arena?

A: When I went outside, I heard shots inside and outside. 17

Set over against the foregoing positive and categorical testimonial declaration of the above-named
eyewitnesses for the prosecution is the accused-appellant's bare denial of the charges against him. As
between the positive identification of the accused by the prosecution witnesses and the bare denial of
accused, the choice is not difficult to make. For, it is a settled rule that positive identification by the
prosecution witnesses of the accused as perpetrator of the crime is entitled to greater weight than his bare
denial and explanation. 18

Likewise, there is no evidence from the record, as none was adduced by accused-appellant, of any ill-motive
on the part of the prosecution witnesses as to why would they testify adversely against accused-appellant in
the way that they did. Well settled is the rule that where there is no evidence and nothing to indicate, that the
principal witnesses for the prosecution were actuated by improper motive, the presumption was that they
were not so actuated and their testimonies are entitled to full faith and credit. 19

2. Accused-appellant contends that eyewitnesses Villasin and Peneyra were not telling the truth when they
testified that it was accused-appellant who was the assailant in the shooting of Ex-Mayor Arreola and his
companions considering that Dr. Rivera, who examined the cadaver of Ex-mayor Arreola, testified that the
trajectory of the bullets that hit the ex-mayor shows that the assailant was on the same level as the ex-mayor,
and the trajectory of the third bullet shows that the assailant was at a higher level as the point of entry was
higher than the point of exit. Appellant states that he was seated at the first row which was the lowest while
the ex-mayor and his companions were seated at the fourth row which was the highest. This contention,
however, is untenable.

Eyewitnesses Villasin and Peneyra testified that accused-appellant was at the first row of seats of the slanted
bleachers of the cockpit arena, when he stood up, stepped on one of the seats, aimed his rifle at Ex-Mayor
Arreola and his companions and fired at them. 20

The above-quoted testimonies explain very well why two gunshot wounds found on the cadaver of Ex-mayor
Arreola appear to have been inflicted while he and his assailant were face to face and at the same level.

Upon the other hand, according to Dr. Rivera, one of the gunshot wounds of Ex-Mayor Arreola had a point of
entry higher than the point of exit because he must have already been lying down when his wound was
inflicted. 21

Well established, too, from the evidence on record is accused-appellant's liability for the death of Jorge
Siriban, Jr. and the near-fatal wounding of Sgt. Benito Raquepo.

Not seriously disputed by accused-appellant are the testimonies of Sgt. Benito Raquepo and policeman Mario
Retreta. Sgt. Benito Raquepo testified that at about 9:00 o'clock in the evening of March 22, 1987 while he
was taking his snacks at the canteen of Co located at the left side of the gate of the cockpit arena, he heard
five successive gun reports coming from inside the cockpit arena. While he was on his way inside the cockpit
arena, he saw the accused-appellant coming from inside the cockpit arena. He told the accused "Mario relax
ka lang", after which the accused pointed his gun at him. At that point in time, Mario Retreta who was among
the persons near Mario Tabaco, grabbed the gun from the latter. It was at that point when the gun went off
hitting him on the right thigh and the bullet exiting on his left thigh. He also saw that Jorge Siriban, who was
then about three meters away from his left side, was hit at his testicles.
Mario Retreta, a policeman and relative of accused-appellant, on the other hand corroborated in part the
testimony of Sgt. Raquepo. He testified that at about 10:00 o'clock in the evening of March 22, 1987, he was
at the canteen of Mrs. Co. While thereat, he saw accused-appellant rushing out from the cockpit arena. Before
he saw accused-appellant, he heard a gun report from inside the cockpit arena. He was then about one meter
away from accused-appellant when he noticed Sgt. Raquepo whom he is acquainted with, and Jorge Siriban
who was then standing at the gate of the cockpit arena. Sgt. Raquepo was facing accused-appellant and at
that distance and position, he heard Sgt. Raquepo said: "Mario keep calm". He also told accused-appellant:
"What is that happened again, Mario." When he saw accused-appellant change his gun position from port
arm to horizontal position, he got near accused-appellant and pressed down the muzzle of the gun when
accused appellant squeezed the trigger hitting Sgt. Raquepo on both thighs and also Jorge Siriban. A certain
Sgt. Ferrer joined in the grapple and was able to take away the gun from accused-appellant.

Sgt. Raquepo survived the gunshot wounds due to adequate medical assistance but Siriban was not as lucky.

Accused-appellant claims that he did not have the criminal intent to kill Siriban or wound Sgt. Raquepo, and
that the gun would not have been fired in the first place had Mario Retreta, for no apparent reason, not tried
to grab the gun from him, are without merit.

Retreta testified that he grabbed the gun from accused-appellant because the latter changed his gun from
port arm position to horizontal position, and at that instance he thought accused-appellant might harm Sgt.
Raquepo. 22

Furthermore, even assuming that he lacked criminal intent in the killing of Sgt. Raquepo and the near-fatal
wounding of Siriban, his claim of innocence cannot be sustained. His undisputed act of firing the gun, which
is by itself felonious in total disregard of the consequences it might produce, is equivalent to criminal intent.

Accused-appellant cannot evade responsibility for his felonious acts, even if he did not intend the
consequences thereof for, in accordance with Art. 4 of the Revised Penal Code, criminal liability is incurred
by any person committing a felony although the wrongful act done be different from that which he intended.

We note that while the accused was found guilty in all four (4) murder charges and the penalty of reclusion
perpetua should have been imposed on him in all four (4) murder charges, the trial court imposed the penalty
of reclusion perpetua for all four murder charges. The trial court explained the single sentence for four murder
charges in this wise:

Whether or not the criminal cases Nos. 259, 270, 284 and 317, involving the killings of Oscar
Tabulog, Jorge Arreola, Felicito Rigunan and Romeo Regunton, respectively, should have been
prosecuted under only one Information.

The law provides:

Art. 48. Penalty for complex crimes.

When a single act constitutes two or more grave or less grave felonies, or when
an offense is a necessary means for committing the other, the penalty for the
most serious crime shall be imposed, the same to be applied in its maximum
period. (as amended by Art. No. 400). (Art. 48, Revised Penal Code).

Read as it should be, this article provides for two clauses of crimes where a single penalty is
to be imposed; first, where the single act constitutes two or more grave or less grave felonies
(delito compuesto); and second, when the offense is a necessary means for committing the
other. (delito complejo) and/or complex proper (People vs. Pineda, 20 SCRA 748).

In the cases at bar, the Provincial Prosecutor filed four (4) separate Informations of murder,
which should have been otherwise, as the shooting to death of the four (4) victims should have
been prosecuted under one information, involving four (4) murder victims.

The evidence shows that the four (4) victims were FELLED by one single shot/burst of fire
and/or successive automatic gun fires, meaning continuous. Hence, it is a complex crime
involving four murdered victims, under the first category, where a single act of shooting
constituted two or more grave or less grave felonies (delito compuesto), as decided in the
cases of People vs. Dama, CA 44 O.G. 3339; People vs. Lawas, 97 Phil. 975; People vs. Pineda,
L-26222, July 21, 1967, 20 SCRA 748.

Paraphrasing a more recent decision of the Supreme Court, we say — as the deaths of Oscar
Tahulug, Jorge Arreola, Felicito Rigunan and Romeo Regunton, in Criminal Cases Nos. 259,
270, 284 and 317 respectively, were the result of one single act of the accused Mario Tabaco,
(People vs. Guillen, 85 Phil. 307) the penalty — is the penalty imposed for the more serious
offense. The more serious offense is murder, the killing have been attended by TREACHERY
 because the victims were completely taken by surprise and had no means of defending
themselves against Mario Tabaco's sudden attack. The penalty is imposable in its maximum
degree (People vs. Fernandez, 99 Phil. 515), but as the death penalty is no longer permitted the
same is hereby reduced to a single Penalty of RECLUSION PERPETUA for the four (4) murders.
(People vs. Herson Maghanoy, GR Nos. 67170-72, December 15, 1989).

Accordingly, in Criminal Case No. 10-316, for homicide with Frustrated Homicide and it
appearing also that the death of Jorge Siriban and the wounding of Benito Raquepo, was the
result of one single act of the accused Tabaco, the applicable penalty is the penalty imposed
for the more serious offense. The more serious offense is HOMICIDE, to be imposed in its
maximum degree of reclusion temporal, which is 17 years, 4 months, 1 day to 20 years. There
being no modifying circumstances and applying the Indeterminate Sentence Law, the penalty
that should be imposed, and which is hereby imposed, upon the accused Mario Tabaco is 10
years and 1 day of Prision Mayor as the minimum, to 17 years, 4 months, 1 day of Reclusion
Temporal, as maximum, plus P30,000.00 actual damages for medical expenses of Benito
Raquepo.

It was duly proved beyond doubt that the gun (Exhs. "K", SN No. 1492932, "K-2" — magazine
of M-14 and Exh. "L" — Memo Receipt of M-14 issued to Tabaco), used by the accused, is
admittedly an automatic powerful weapon, more powerful than an M-16 armalite rifle. It is so
powerful that the bullets can penetrate even more than five (5) persons resulting to their
deaths. And, this was proven when, according to witness Rosario Peneyra, the bullets even
destroyed the cemented rail guard separating the lower and upper bleachers of the cockpit
arena, and causing wounds on his face and on his right shoulder. Additionally, we have the
used/spent empty shells (Exh. "R" and "R-1"). 23

We hold that the trial court was in error in imposing only a single penalty of reclusion perpetua for all four
murder cases. The trial court holding that a complex crime was committed since "the evidence shows that
the four (4) victims were FELLED by one single shot/burst of fire and/or successive automatic gun
fires, meaning continuous (emphasis ours) 24 does not hold water.

Of course, to justify the penalty imposed, the trial court relied on the doctrines enunciated in People
vs. Pama 25 (not People vs. Dama, as cited by the trial court), People vs. Lawas, 26 and People vs. Pineda. 27

The trial court misappreciated the facts in People vs. Pama. In said case, there was only one bullet which
killed two persons. Hence, there was only a single act which produced two crimes, resulting in a specie of
complex crime known as a compound crime, wherein a single act produces two or more grave or less grave
felonies. In the case at bench, there was more than one bullet expended by the accused-appellant in killing
the four victims. The evidence adduced by the prosecution show that Tabaco entered the cockpit with a fully
loaded M-14 sub-machine gun. 28 He fired the weapon, which contained 20 rounds of bullets in its magazine,
continuously. When the rifle was recovered from Tabaco, the magazine was already empty. Moreover, several spent
shells were recovered from the scene of the crime. Hence, the ruling enunciated in People vs. Pama cannot be
applied. On the contrary, what is on all fours with the case at bench is the ruling laid down in People
vs. Desierto. 29 The accused in that case killed five persons with a Thompson sub-machine gun, an automatic
firearm which, like the M-14, is capable of firing continuously. As stated therein:

In the case at bar, Article 48 of the Revised Penal Code is not applicable because the death of
each of the five persons who were killed by appellant and the physical injuries inflicted upon
each of the two other persons injured were not caused by the performance by the accused
of one simple act as provided for by said article. Although it is true that several successive
shots were fired by the accused in a short space of time, yet the factor which must be taken
into consideration is that, to each death caused or physical injuries inflicted upon the victims,
corresponds a distinct and separate shot fired by the accused, who thus made himself
criminally liable for as many offenses as those resulting from every single act that produced
the same. Although apparently he perpetrated a series of offenses successively in a matter of
seconds, yet each person killed and each person injured by him became the victim,
respectively, of a separate crime of homicide or frustrated homicide. Except for the fact that
five crimes of homicide and two cases of frustrated homicide were committed successively
during the tragic incident, legally speaking there is nothing that would connect one of them
with its companion offenses. (emphasis ours)

In Desierto, although the burst of shots was caused by one single act of pressing the trigger of the
Thompson sub-machine gun, in view of its special mechanism, the person firing it has only to keep
pressing the trigger with his finger and it would fire continually. Hence, it is not the act of pressing the
trigger which should produce the several felonies, but the number of bullets which actually produced
them. 30

The trial court also misread People vs. Pineda. 31 True, the case of Pineda provided us with a definition of what
a complex crime is. But that is not the point. What is relevant is that Art. 48, was not applied in the said case
because the Supreme Court found that there were actually several homicides committed by the perpetrators. Had
the trial court read further, it would have seen that the Supreme Court in fact recognized the "deeply rooted . . .
doctrine that when various victims expire from separate shots, such acts constitute separate and distinct
crimes." 32 Clarifying the applicability of Art. 48 of the Revised Penal Code, the Supreme Court further stated
in Pineda that "to apply the first half of Article 48, . . . there must be singularity of criminal act; singularity of
criminal impulse is not written into the law." 33 (emphasis supplied) The firing of several bullets by Tabaco,
although resulting from one continuous burst of gunfire, constitutes several acts. Each person, felled by different
shots, is a victim of a separate crime of murder. There is no showing that only a single missile passed through the
bodies of all four victims. The killing of each victim is thus separate and distinct from the other. In People
vs. Pardo 34 we held that:

Where the death of two persons does not result from a single act but from two different shots,
two separate murders, and not a complex crime, are committed.

Furthermore, the trial court's reliance on the case of People vs. Lawas 35 is misplaced. The doctrine enunciated
in said case only applies when it is impossible to ascertain the individual deaths caused by numerous killers. In
the case at bench, all of the deaths are attributed, beyond a shadow of a doubt, to the accused-appellant.

Consequently, the four murders which resulted from a burst of gunfire cannot be considered a complex crime.
They are separate crimes. The accused-appellant must therefore be held liable for each and every death he
has caused, and sentenced accordingly to four sentences of reclusion perpetua.

WHEREFORE, no reversible error having been committed by the trial court in finding accused-appellant guilty
of four (4) counts of Murder and one (1) count of Homicide with Frustrated Homicide, the judgment appealed
from should be, as it is, hereby AFFIRMED, with the MODIFICATION that four sentences of reclusion
perpetua be hereby imposed.

Costs against accused-appellant.

SO ORDERED.