SECOND DIVISION

EXEQUIEL SENOJA, G.R. No. 160341

Petitioner,
Present:
PUNO, J., Chairman,
AUSTRIA-MARTINEZ,
- versus - CALLEJO, SR.,
TINGA, and
CHICO-NAZARIO, JJ.

Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent. October 19, 2004
x--------------------------------------------------x

DECISION

CALLEJO, SR., J.:

Before us is a petition for review on certiorari of the Decision[1] of the Court of Appeals (CA) in People v. Exequiel Senoja, docketed as CA-
G.R. CR No. 26564, affirming with modification the Decision[2] of the Regional Trial Court (RTC) of Baler, Aurora, Branch 96, in Criminal Case
No. 2259, for homicide.

The Case For the People

As culled by the Office of the Solicitor General (OSG) in its comment on the petition, the case stemmed from the following:

1. On April 16, 1997, petitioner Exequiel Senoja, Fidel Senoja, Jose Calica, and Miguel Lumasac were drinking
gin in the hut of Crisanto Reguyal in Barangay Zarah, San Luis, Aurora. An angry Leon Lumasac suddenly arrived at the
said place, holding a bolo in his right hand and looking for his brother Miguel. Petitioner and Jose tried to pacify
Leon. But when petitioner approached Leon, the latter tried to hack him so he embraced Leon and Jose took Leons
bolo. Then, Leon and petitioner talked things out and later reconciled (pp. 2-4, TSN, November 16, 1998; pp. 2-4, TSN,
August 30, 2002; p. 2, TSN, April 21, 1998; p. 5, TSN, March 14, 2001; p. 2, CA Decision).

2. Subsequently, Leon walked out of Crisantos hut followed by petitioner. Suddenly, about ten meters from the
hut, petitioner stabbed Leon at the back. When Leon turned around, petitioner continued stabbing him until he fell to
the ground. Then, petitioner ran towards the barangay road and threw away the kolonial knife he used in stabbing
Leon. The latter died on the spot (pp. 2-6, TSN, November 22, 2000; p. 5, TSN, August 30, 2002; p. 3, CA Decision).

3. Dr. Pura Deveza Valenzuela-Uy, San Luis Municipal Health Officer, examined the cadaver of Leon and found
multiple lesions on his body and five fatal wounds on his chest. Dr. Uy issued a medico-legal report and death certificate
(Exhibits A and B, pp. 13-14, Records; pp. 3-5, TSN, November 20, 1997).[3]

On August 13, 1997, an Information was filed charging petitioner Exequiel Senoja with homicide, the accusatory portion of which
reads:

That on April 16, 1997 at around 11 oclock in the morning in Barangay Zarah, San Luis, Aurora, Philippines, and
within the jurisdiction of this Honorable Court, the said accused, did then and there, willfully, unlawfully, and feloniously,
with intent to kill, attack, assault, and use personal violence upon the person of one Leon Lumasac by then and there
stabbing him with a bladed weapon locally known as kolonyal at the different parts of his body thereby inflicting upon
the latter mortal stab wounds which were the direct and immediate cause of his death thereafter.

CONTRARY TO LAW.[4]

The petitioner admitted killing the victim but invoked the affirmative defense of self-defense. His version of the fatal incident is set
forth in his petition at bar:

1. On April 16, 1997 at about 11 oclock in the morning, Crisanto Reguyal, Fidel Senoja, Jose Calica, Miguel
Lumasac, and Exequiel Senoja were in the hut of Crisanto Reguyal in Barangay Zarah, San Luis, Aurora, drinking gin;

2. Leon Lumasac suddenly arrived holding a bolo and hacked the doorpost of Crisantos hut, angrily
demanding for his brother, Miguel Lumasac, whom he suspected of drying up the ricefield he was plowing;

3. At this time, Miguel Lumasac was no longer inside the hut but fetching water;

4. To prevent Leon Lumasac from entering the hut, Exequiel Senoja (appellant) and Jose Calica stood by the
door while simultaneously trying to pacify Leon Lumasac;
 5. Exequiel Senoja with a knife then went outside and tried to pacify Leon Lumasac but the latter angered by
the gestures of the former tried to hack Exequiel Senoja;

6. To avoid any injury, Exequiel Senoja embraced Leon which gave an opportunity to disarm the duo. Jose
Calica got the bolo of Leon and threw it away while Fidel Senoja took the colonial knife of Exequiel;

7. Jose Calica and Fidel Senoja were able to pacify Leon Lumasac so they invited him to get inside the
hut. Inside the hut, Leon Lumasac tried to box Fidel Senoja for siding with his brother, Miguel, but was prevented by
Exequiel Senoja who held Leons hands;

8. After a while, Leon Lumasac left but returned and angrily demanded for his bolo. Jose Calica gave his own
bolo with a sabbard to replace the bolo of Leon which he threw away;

9. With Jose Calicas bolo in him, Leon Lumasac left but only after leaving a threat that something will happen
to Exequiel Senoja for siding with his brother;

10. After walking for about 10 meters away from the hut, Leon Lumasac turned around and saw Exequiel
Senoja on his way home following him;

11. Leon Lumasac walked back to meet Exequiel Senoja and upon reaching him, the former suddenly and
treacherously hacked the latter at the left side of his head and right thigh;

12. Unable to evade the treacherous attack by Leon Lumasac who persisted in his criminal design, Exequiel
Senoja drew his colonial knife and stabbed Leon Lumasac in self-defense, inflicting upon him multiple wounds which
caused his death.[5]

On June 7, 2002, the trial court rendered judgment against the petitioner, finding him guilty beyond reasonable doubt of the
crime charged. The fallo of the decision reads:

WHEREFORE, premises considered, this Court finds accused Exequiel Senoja GUILTY beyond reasonable doubt
of the crime of Homicide for the death of victim Leon Lumasac and hereby sentences him, applying Article 64,
paragraph 1 of the Revised Penal Code and Section 1 of the Indeterminate Sentence Law, (a) to suffer the penalty of
twelve (12) years of prision mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as
maximum; (b) to pay the heirs of the victim the amount of Fifteen (sic) Thousand Pesos (Php 50,000.00) by way of civil
indemnity; and (c) to pay the costs.

SO ORDERED.[6]

In due course, the petitioner appealed the decision to the CA which rendered judgment affirming, with modification, the decision
of the RTC. The petitioner now seeks relief from this Court, contending that:

The Honorable Court of Appeals failed to appreciate vital facts which, if considered, would probably alter the
result of this case on appeal finding appellants plea of self-defense credible.[7]

The petitioner faults the CA for its analysis of his testimony, as follows:
The injuries suffered by the petitioner at the left side of his head and right thigh was confirmed by Dr. Rodolfo
Eligio in open court. The relative positions of the wounds clearly show that the drunken Leon Lumasac brandished and
executed several hacking blows against Exequiel Senoja before he was stabbed, neutralized and finished by the latter. It
would be physically and highly improbable for the victim if he was treacherously hit at the left buttock and as he turned
around to face the petitioner, the latter stabbed him successively and without let-up hitting him 9 times resulting in 9 fatal
wounds. This did not give a chance to the victim to retaliate and inflict those wounds upon the aggressor. The victim
used Mr. Jose Calicas bolo which was secured by its scabbard. Unless earlier drawn, it would be impossible for the victim
to use it in
defending himself from the surprise attack and stabbing at a lightning fashion inflicting nine (9) fatal wounds. Time
element was the essence of this encounter which, as narrated by the Honorable Court, after the assailant poked the
victim at the left side of the buttock with the use of the colonial knife he stabbed him successively until he fell down
dead. Under these circumstances, how could Exequiel Senoja suffered (sic) those hacking (sic) wounds inflicted by the
victim using Calicas bolo? In all indications, it was Leon Lumasac who attacked his adversary first but lost in the duel
considering that he was older than Exequiel Senoja and drunk.Clearly, therefore, it was Leon Lumasac who was the
aggressor both in the first and second phases of the incident and Exequiel Senoja was compelled to defend himself.

A closer scrutiny of the attending circumstances which resulted in this stabbing incident shows that Exequiel
Senoja has no compelling reasons to kill his godfather. On that same occasion, Mr. Exequiel Senoja was with the brother
of the victim, Miguel Lumasac, which only shows that there was no pre-existing grudge between these families. And still,
what titillates our imagination is the fact that Miguel Lumasac, who was then with the group drinking gin at the hut of
Crisanto Reguyal did not clearly impute this crime to petitioner. On the contrary, when he was presented to the witness
stand, he was very evasive in answering the questions profounded by the prosecutors if he wanted the petitioner to be
imprisoned. Miguel Lumasac could have told the real truth that Senoja murdered his brother.[8]

The CA declared that, based on the evidence on record:

 As seen from appellants testimony, Leon Lumasacs actions can be divided into two (2) phases: the first phase,
when Leon entered Crisanto Reguyals hut, up to the time he and the appellant reconciled. The second phase was when
Leon left to go home. In phase one where Leon entered Reguyals hut, Leon was the aggressor but his aggression was
mostly directed to his brother Miguel who was not inside the hut anymore, although it was also partly directed at the
appellant and even at Fidel Soneja (sic). But Leons aggression against the appellant and Fidel Senoja ceased since, as
appellant testified, when Leon tried to box Fidel Senoja and he (appellant) told Leon Huwag po, Huwag po, Leon was
pacified.

In the second phase, when Leon left the hut to go home, his aggression had already ceased.

It is uncontroverted that the appellant followed the victim when the latter went out of the hut to go
home. Appellants testimony is that when he was two meters outside the hut, Leon turned around to face him saying if
youre not only my godson in a threatening way, then approached and hacked him (with Calicas bolo) inflicting wounds
on the left side of his head and his right thigh, thus, he (appellant) attacked the victim with the kolonial knife he was
holding. That appellant suffered such injuries was corroborated by the testimony of Dr. Rodolfo Eligio.[9]

The petition is denied.

Paragraph 1, Article 11, of the Revised Penal Code provides:

ART. 11. Justifying circumstances. The following do not incur any criminal liability:

1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur;

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

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

The affirmative defense of self-defense may be complete or incomplete. It is complete when all the three essential requisites are
present; it is incomplete if only unlawful aggression on the part of the victim and any of the two essential requisites were present. In fine,
unlawful aggression on the part of the victim is a condition sine qua non to self-defense, complete or incomplete. Whether or not the
accused acted in self-defense is a question of fact. Like alibi, the affirmative defense of self-defense is inherently weak because, as
experience has demonstrated, it is easy to fabricate and difficult to disprove.[10]

The right of self-defense proceeds from necessity and limited by it. The right begins where necessity does, and ends where it
ends.[11] There is,
however, a perceptible difference between necessity and self-defense, which is that, self-defense excuses the repulse of a wrong;
necessity justifies the invasion of a right. Hence, it is essential to self-defense that it should be a defense against a present unlawful attack.[12]

Life can be taken under the plea of necessity, when necessary for the preservation of the life on the party setting up the plea. Self-
defense is an act to save life; hence, it is right and not a crime.[13] There is a need for one, indeed, for it is a natural right for one to defend
oneself when confronted by an unlawful aggression by another. It is a settled rule that to constitute aggression, the person attacked must
be confronted by a real threat on his life and limb; and the peril sought to be avoided is imminent and actual, not merely
imaginary. Absent such an actual or imminent peril to ones life or limb, there is nothing to repel; there is no necessity to take the life or inflict
injuries on another.[14]

But then what is the standard to use to determine whether the person defending himself is confronted by a real and imminent
peril to his life or limb? We rule that the test should be: does the person invoking the defense believe, in due exercise of his reason, his life or
limb is in danger? After all, the rule of law founded on justice and reason: Actus no facit remin, nisi mens sit rea. Hence, the guilt of the
accused must depend upon the circumstances as they reasonably appear to him.[15]

Unlawful aggression presupposes an actual, sudden, unexpected attack or imminent danger thereof, not merely a threatening or
intimidating attitude.[16] Hence, when an inceptual/unlawful aggression ceases to exist, the one making a defense has no right to kill or
injure the former aggressor.[17] After the danger has passed, one is not justified in following up his adversary to take his life.The conflict for
blood should be avoided if possible.[18] An assault on his person, he cannot punish when the danger or peril is over. When the danger is
over, the right of self-defense ceases. His right is defense, not retribution.[19]

When the accused offers the affirmative defense of self-defense, he thereby admits killing the victim or inflicting injuries on
him. The burden of evidence is shifted on the accused to prove, with clear and convincing evidence, that he killed the victim or inflicted
injuries on him to defend himself. The accused must rely on the strength of his own evidence and not on the weakness of that of the
prosecution because if the evidence of the prosecution were weak, the accused can no longer be acquitted.[20]

We agree with the CA that, as gleaned, even from the testimony of the petitioner, there were two separate but interrelated
incidents that culminated in the petitioners stabbing and killing of the victim Leon Lumasac. The first was the arrival of the victim, who was
armed with a bolo, in the hut of Crisanto Reguyal, looking for his brother Miguel Lumasac, whom he was angry at. The victim hacked the
wall of the house in anger. The petitioner, who was armed with a knife, tried to pacify the victim. The victim attempted to hack the
petitioner; nevertheless, the latter embraced and managed to pacify the victim. Forthwith, Jose Calica took the bolo of the victim and
threw it away. For his part, Fidel Senoja took the petitioners knife. As it was, the victim was already pacified. He and the petitioner were
already reconciled.[21] Fidel even gave back the knife to the petitioner.

The second incident took place when the victim demanded that Calica return his bolo as he wanted to go home
already. Because he had thrown away the victims bolo, Calica was, thus, impelled to give his own. The victim then warned the petitioner
three times, May mangyayari sa iyo, kung hindi ngayon, bukas, and left the hut. When the victim had already gone about ten meters from
the hut, the petitioner followed the victim. The victim turned around and told the petitioner, Kung hindi lang kita inaanak. The victim then
hacked the petitioner, hitting the latter on the left side of his head and thigh. Believing that the victim would attack him anew, the
petitioner stabbed the victim frontally several times.[22] He also stabbed the victim on the left buttock. The petitioner could not recall how
many times he stabbed the victim and what parts of the latters body had been hit.

The first episode inside the hut had been completed with the protagonist, the victim, and the petitioner reconciled. The second
episode commenced inside the hut and continued outside, and ended with the petitioner stabbing the victim several times.

The trial and the appellate courts gave no credence and probative weight to the testimony of the petitioner. So do we.

First. The findings of fact of the trial court and its conclusions based on the said findings are accorded by this Court high respect, if
not conclusive effect, especially when affirmed by the CA.This is because of the unique advantage of the trial court of having been able
to observe, at close range, the demeanor and behavior of the witnesses as they testify. This rule, however, is inapplicable if the trial court
ignored, overlooked, or misinterpreted cogent facts and circumstances which, if considered, will alter or reverse the outcome of the case.
We have reviewed the records and found no justification for a reversal of the findings of the trial court and its conclusions based thereon.

Second. The victim sustained six hack wounds and one lacerated wound. This is gleaned from the Necropsy Report of Dr. Pura Uy,
to wit:

FINDINGS: The victim lies in supine position, stocky in built; his clothing completely soaked with fresh blood.

CHEST:
(+) stab wound 2 inches below the L nipple 4 inches deep running medially to the anterior median line.
(+) stab wound 2 inches to the L of the anterior median line at the level of the L nipple 5 inches deep running posteriorly.
(+) stab wound 1 inch above the L nipple 4 inches deep running inferomedially.
(+) stab wound 2 inches to the left of the anterior median line 4 inches deep running inferoposteriorly.
(+) stab wound 1 inch to the right of the anterior median line at the level of the second right intercostal space 0.5 inch in
depth.
(+) stab wound inch to the right of the anterior median line at the level of the xyphoid process 3 inches deep running
superiorly.
(+) stab wound at the level of the L nipple L anterior axillary line 4 inches in depth running superiorly to the left armpit.
(+) hack wound at the left armpit 3 inches long injuring the muscles and the blood vessels.
(+) lacerated wound on the left palm almost cutting off the proximal phalanx of the left thumb.[23]

Five of the wounds of the victim on his chest were fatal.[24] The victim also sustained a stab wound on the left buttock. According
to the doctor, it was unlikely for the victim to have survived even with medical attention.[25] After the doctor made her initial autopsy and
submitted her report, she noted that the victim sustained a stab wound of about two inches deep at the left buttock, thus:

Q In this medico-legal report, you indicated that the cause of death of the victim is Hypovolemic shock 2 to multiple stab
wounds, chest. Will you please explain this?
A Ito pong nakalagay o dahilan ng pagkamatay ng biktima sa sobrang natapon na dugo gawa ng maraming saksak
na tinamo ng biktima sa kanyang dibdib ang nagbigay ng daan sa kanyang kamatayan.

Q Will you please tell us, Dr. Uy, if there is one amont (sic) these lesions that is located at the back of the victim?
A I forgot to tell you that a day after I submitted the report, the funeral parlor which attended the victim has called my
attention because of the wound at the back of the victim and I attended immediately to see these lesions at
the home of the victim. I reviewed for (sic) these lesions and I saw one lesion located at the left buttock of the
victim.

Q What is the nature of the injury?

A Stab wound, about two inches deep.

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

A It is not that fatal.

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

Q How many fatal wounds have (sic) the victim sustained in his chest?
A Five fatal stab wounds on the chest.[26]

Considering the number, nature and location of the wounds sustained by the victim, the petitioners plea of self-defense is
incredible.[27] It bears stressing that the petitioner resolutely denied stabbing the victim at the buttock and insisted that he stabbed the
victim frontally:
 Q As a matter of fact, he sustained an injury at the back of his buttock (pigi) and when he faced you, you stabbed him
again several times?
A That is not true, Sir.

Q But you are admitting that you stabbed him several times frontally?
A Yes, Sir, because I am (sic) defending myself.

Q You also stabbed him in his left armpit?

A I dont know, Sir.

Q But you knew that you stabbed him in his buttock?

A No, Sir.

Q After stabbing him several times and felt that he was already dead, you already left the place?
A Yes, Sir.[28]

The testimony of the petitioner is belied by the physical evidence on record. The settled rule is that physical evidence is evidence
of the highest order; it speaks more eloquently than a hundred witnesses.[29]

Third. The petitioner threw away his knife and failed to surrender it to the policemen; neither did he inform the policemen that he
killed the victim in self-defense. The petitioners claim that the victim was armed with a bolo is hard to believe because he even failed to
surrender the bolo.[30]

Fourth. The petitioners version of the events that transpired immediately before he stabbed the victim does not inspire belief. He
claims that when he saw the victim emerged from the hut, the victim walked towards the petitioner saying, Kung hindi lang kita
inaanak, but hit and hacked the latter on the left buttock.[31] As gleaned from his statement, the victim was not disposed, much less
determined to assault the petitioner. And yet, the petitioner insists that without much ado, the victim, nevertheless, hit him on the head and
on the thigh with his bolo.

Fifth. According to the petitioner, the victim warned him three times before leaving the hut, May mangyayari sa iyo, kung hindi
ngayon, bukas. The petitioner testified that shortly before the victim uttered these words, the latter even touched the blade of the bolo to
see if it was sharp.[32] The petitioner was, thus, aware of the peril to his life if he followed the victim. The petitioner, nevertheless, followed the
victim and left the hut after the victim had gone barely ten meters. He should have waited until after the victim had already gone far from
the hut before going home to avoid any untoward incident.

Sixth. The petitioner presented his brother-in-law Ruben Dulay to corroborate his testimony that the victim stabbed the petitioner
and that this impelled the latter to stab the former. But the testimony of Dulay contradicted the testimony of the petitioner:

Q When Exequiel Senoja stabbed Leon Lumasac several times, he immediately fell to the ground and was fatal[ly]
wounded, immediately died because of several stabs and lay (sic) down?
A I did not see that scene because Exequiel Senoja stabbed Leon Lumasac, I turn (sic) back upon seeing Leon Lumasac
hack Exequiel Senoja, I turn (sic) back because I was afraid then. When I turn (sic) back I saw them embracing
each other, Sir.

Q And that is the time when Exequiel Senoja stabbed Leon Lumasac?
A I did not see the stabbing. What I only saw was that they were embracing each other, Sir.

Q So you are now changing your answer, you actually saw Exequiel Senoja stabbing Leon Lumasac several times, after
he was hack[ed] by Leon Lumasac?
A I did not see that Exequiel Senoja stab Leon Lumasac, Sir.[33]

Seventh. The bare fact that the petitioner sustained a five-centimeter wound at the left temporal region and an eight-centimeter hack
wound on the anterior portion of his right thigh does not preclude the fact that he was the unlawful aggressor; nor buttress his plea that he
acted in self-defense. The petitioner failed to inform the doctor that he sustained the wounds to defend himself. Moreover, the doctor
testified that the wounds the petitioner sustained were slight:

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

Q So, you dont know?

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

Q Were the injuries only slight?

A Yes, Sir.

Q So, it is (sic) possible that these injuries were self-inflicted?

A Probably, Sir, but I cannot comment on that.

Q You said that the patient was under the influence of alcohol? Would you say that the patient was then so drunk at
that time?
 A When I saw him at that time, he was moderately drunk.[34]
The doctor gave the petitioner due medications for 30 minutes and the petitioner then went home:

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

Q Were you hit by the hack made by the victim in this case?
A Yes, Sir.

Q Where?
A Here, Sir.

And Witness is pointing to his left head.

Q Where else?
A (His) right thigh.

Q In what place did this incident happen?

A In the hut of Tata Santos, Sir.

Q What is his real name?

A Crisanto Reguyal, Sir.[35]

If, as claimed by the petitioner, the victim stabbed him frontally, it is incredible that the victim was able to hack the anterior part of his right
thigh.

Eighth. The testimony of the petitioner that the victim stabbed him outside the hut on the left side of his head and the anterior portion of his
right thigh is belied by his testimony on direct examination that the victim stabbed him while still inside the hut of Reguyal:

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

Q Were you hit by the hack made by the victim in this case?
A Yes, Sir.

Q Where?
A Here, Sir.

And Witness is pointing to his left head.

Q Where else?
A (His) right thigh.

Q In what place did this incident happen?

A In the hut of Tata Santos, Sir.

Q What is his real name?

A Crisanto Reguyal, Sir.[36]

But then, after the said incident, the petitioner and the victim had reconciled. We agree with the following findings of the appellate court:
The question that must be resolved is whether or not the victim was the unlawful aggressor as the appellants
testimony pictures him to be. The Court rules in the negative. The victim had already left the hut and was ten (10) meters
away from it. There is no showing that the victim, who was drunk, was aware that appellant was following him, or that
the appellant called out to him so that he (the victim) had to turn around and notice him. It is clear that at that point in
time, the victim was simply walking toward his home; he had stopped being an aggressor. It was the appellant who,
smarting from the earlier incident in the hut where Leon told him hindi ka tatagal, sa loob ng tatlong araw
mayroong mangyayari sa iyo, kung hindi ngayon, bukas repeated three times, wanted a confrontation. Appellant
stabbed or poked the victim in the left buttock resulting in the non-fatal wound, and when the latter turned around,
successively stabbed and hacked the victim in the armpit and chest until he fell. In all, the victim suffered nine (9)
wounds.

It is the well-considered finding of this Court that while Leon Lumasac had ceased being the aggressor after he
left the hut to go home, accused Exequiel Senoja was now the unlawful aggressor in this second phase of their
confrontation. It bears mentioning that appellant contradicted himself with respect for (sic) the reason why he left the
hut. First, it was to pacify Leon and the second reason was that he was going home.

As for appellants injuries, it is clear that they were sustained in the course of the victims attempt to defend
himself as shown by the lacerated wound on the victims left palm, a defensive wound. [37]
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed Decision of the Court of Appeals is AFFIRMED.

SO ORDERED.
G.R. No. L-12963 October 25, 1917

THE UNITED STATES, plaintiff-appellee,

vs.
URBANO DOMEN, defendant-appellant.

Leopoldo Rovira for appellant.

Acting Attorney-General Paredes for appellee.

MALCOLM, J.:

The defendant and appellant frankly admits that a wound inflicted by him with a tuba knife on the right arm of Victoriano Gadlit caused
the death of the latter. The appellant, however, advances the claim, that he should be exempted from criminal liability because of having
acted in defense of his person. Let us, therefore, examine the evidence to ascertain if the decision of the trial court finding the defendant
and appellant guilty of homicide should be sustained or whether as contended by counsel and as recommended by the Attorney-General
the defendant should be acquitted.

The widow took the stand for the prosecution and testified that the accused made an unprovoked attack upon her husband at the foot of
the stairway leading up into their house, and that this attack was also witnessed by a neighbor, Angel Pocong. But Angel Pocong testified
that he was absent from home at the time in question, and that all that he knew of the fight was what was told him by the widow. The
court found that the widow was mistaken in her testimony. Not considering, therefore, her testimony, the prosecution has in addition only
the testimony of Filomeno Antipuesto, who told of the accused having admitted that he had wounded the deceased, and the testimony
of Angel Pocong as to the death of the deceased while being carried in a hammock. We must then perforce rely on the evidence for the
defense. From the testimony of two witnesses who claimed to have seen what occurred and the testimony of the defendant, it appears
that the defendant and the deceased quarrelled about a carabao of the defendant, which the deceased said had gotten into his corn
patch; that the deceased attacked the defendant and struck him with a piece of wood called "Japanese," about a vara in length and
about the size of one's wrist; that the deceased struck at the accused four or five times; and that the accused did not retreat but struck
back wounding the deceased on the forearm.

The facts stated present a close question for the decision. Admitting that there was unlawful aggression on the part of the deceased, the
doubt centers around the point as to whether there was reasonable necessity for the means employed by the defendant to repel the
attack. Resolving, as it is our duty to do, any doubt in favor of the accused, and passing by well known principles of the criminal law, we
come to the case of United States vs. Molina ([1911] 19 Phil., 227), and the doctrines therein enunciated. In the opinion handed down in this
case by Mr. Justice Mapa, it is held that: (1) During an unlawful attack by another and while a struggle is going on and the danger to his
person or to his life continues, the party assaulted has a right to repel the danger by wounding his adversary, and if, necessary, to disable
him; (2) the fact that a person when assaulted does not flee from his assailant is not sufficient reason for declining in a proper case to
uphold the rational necessity of the means employed in repelling the illegal attack. 1awphil.net

The first proposition of the Molina opinion is in accord with the settled jurisprudence of this court. (See U. S. vs. Laurel [1912], 22 Phil., 252; U. S.
vs. Patoto [1914], 28 Phil., 535.) The second proposition dealing with the necessity of retreat by the accused can be further examined in the
light of controlling authorities. The ancient common law rule in homicide was denominated "retreat to the wall." This doctrine makes it the
duty of a person assailed to retreat as far as he can before he is justified in meeting force with force. This principle has now given way in the
United States to the "stand ground when in the right" rule. The Supreme Court of the United States carefully examined the application of the
two doctrines in Beard vs. United States ([1894] 158 U. S., 550). In the opinion handed down by Mr. Justice Harlan reference is made
approvingly to the decision of the Supreme Court of Ohio in Erwin vs. State ([1876] 29 Ohio St., 186) in which it is said:

It is true that all authorities agree that the taking of life in defense of one's person cannot be either justified or excused, except on
the ground of necessity; and that such necessity must be imminent at the time; and they also agree that no man can avail himself
of such necessity if he brings it upon himself. The question, then, is simply this: Does the law hold a man who is violently and
feloniously assaulted responsible for having brought such necessity upon himself, on the sole ground that he failed to fly from his
assailant when he might safely have done so? The law, out of tenderness for human life and the frailties of human nature, will not
permit the taking of it to repel a mere trespass, or even to save life where the assault is provoked; but a true man, who is without
fault, is not obliged to fly from an assailant, who, by violence or surprise, maliciously seeks to take his life or do him enormous bodily
harm.

Justice Harlan then concludes his opinion with these words:

The defendant was where he had the right to be, when the deceased advanced upon him in a threatening manner, and with a
deadly weapon; and if the accused did not provoked the assault and had at the time reasonable grounds to believe and in
good faith believed, that the deceased intended to take his life or do him great bodily harm, he was not obliged to retreat, nor
consider whether he could safely retreat, but was entitled to stand his ground and meet any attack made upon him with a
deadly weapon, in such way and with such force as, under all circumstances, he, at the moment, honestly believed, and had
reasonable grounds to believe, was necessary to save his own life or to protect himself from great bodily injury.
The same Court reexamined and reaffirmed the doctrine in Rowe vs. United States ([1896] 164 U. S., 546).

We can do no better than to paraphrase the language of these well considered opinions for our present purpose. The accused did not
provoke the assault. The accused was where he had a right to be. The law did not require him to retreat when his assailant was rapidly
advancing upon him in a threatening manner with a deadly weapon. The accused was entitled to do whatever he had reasonable
grounds to believe at the time was necessary to save his life or to protect himself from great bodily harm. The element of practicability
made it impossible for him to determine during the heat of a sudden attack whether he would increase or diminish the risk to which
exposed by standing his ground or stepping aside. His resistance was not disproportionate to the assault. The wound was inflicted, not on
what is usually a vital part of the body but on the arm as one would naturally strike to defend himself. Viewed from all angles, we believe
this is a "proper case" for the exemption of the accused from criminal liability because of having acted in legitimate defense of his person.

Agreeable to the recommendation of the Attorney-General and in conformity with the proof, judged in connection with the principles just
stated, we must reverse the judgment of the trial court and acquit the defendant and appellant of the crime charged, with the costs of
both instances de officio. So ordered.

G.R. No. L-43469 August 21, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
BEATRIZ YUMAN, defendant-appellant.

Jose Advinvula and L.P. Hamilton for appellant.

Office of the Solicitor-General Hilado for appellee.

RECTO, J.:

Marciano Martin and Beatriz Yuman without being joined in lawful wedlock, lived as husband and wife for three or four years until February
26, 1935, when Marciano left their common dwelling. On the afternoon of March 5, 1935, Beatriz went to look for him at the cockpit of
Mandaluyong From there they came to Manila in a vehicle and while on the way they talked of "his absence and the many debts they
had". Marciano intimated to Beatriz his determination to end their relations, and urged her to return home alone. When they arrived in the
district of Sampaloc at the corner of Legarda and Bustillos street, they alighted and she suggested that they go home together, to which
Marciano, rude and hostile, objected warning her at the same time not to meddle with his affairs and to do as she pleased, whereupon
Beatriz stabbed him with the penknife she was carrying thereby inflicting a wound in the "right lumbar region which injured the kidney".
When Marciano realized that he had been wounded, he started to rum pursued by Beatriz, weapon in hand. In his flight Marciano ran into
traffic policeman Eduardo Dizon whom he asked to arrest "that woman" who had wounded him. Policeman Dizon saw Beatriz and
commanded her to surrender the penknife, while she did instantly. When asked why she had wounded Marciano she replied that
Marciano "after having taken advantage of her" had abandoned her. Immediately the aggressor was arrested and placed in custody,
where she freely and voluntarily gave to the police officials the statement Exhibit D, from which he took, with respect to the act and
circumstances of the aggression, the foregoing statement of facts because in our opinion the said statement constitutes a true, correct
and spontaneous version of the occurrence.

The following day Marciano Martin died as a result, according to expert testimony, of the wound inflicted upon him by Beatriz Yuman.
Charged in the Court of First Instance of Manila with the crime of homicide, Beatriz Yuman indeterminate penalty ranging from six years
and one day of prision mayor as minimum to twelve years and one day of reclusion temporal as maximum, and to pay to the heirs of the
deceased as indemnity of P1,000, and the costs. From said sentence the defendant appealed, alleging as error the failure of the trial court
to take into consideration the presence of all the elements of legitimate self-defense, or at least certain circumstances mitigating her
criminal liability.

Inasmuch as this court is of the opinion that the act complained of occurred in the manner and under the circumstances stated in the
statement Exhibit D the Spanish translation of which is Exhibit D-1, and not in accordance with the subsequent testimony of the accused
given at the trial as a witness in her favor, it is evident that our conclusion will have to be that her act of mortally wounding her lover
Marciano Martin had not been preceded by aggression on the part of the latter. There is no occasion to speak her of the "reasonable
necessity of the means employed to prevent or repel it", nor is it necessary to inquire whether or not there was "sufficient provocation" on
the part of the one involving legitimate self-defense because both circumstances presuppose unlawful aggression which, we repeat, was
not present in the instant case. Even in her testimony given during the trial, the appellant, momentarily forgetting her theory, admitted that
the act performed by her was not justified:

Q. And was there no motive on your part to justify your assaulting him? — A. There was none.

Q. And why did you stab him? — A. I did not have any intention of attacking him either; as a matter of fact I was looking for him
so that we could live together.

Q. If you had no intention to attack him, and much less to kill him, why did you open that penknife? — A. That penknife was
closed, so much so that I only opened it when I felt dizzy and my sight became dim and in fact I do not know where I hit him.
(Beatriz Yuman, transcript pp. 27-28.).
The obfuscation alleged by the accused was due according to her to the fact and "the deceased compelled me to alight from the
vehicle and pushed my head on account of which I felt dizzy and hit my peg against something which hurt me" and it was then when "I
took from my under-garments the penknife I was carrying and I opened it ... ". We do not think that such an incident took place as no
reference thereto has been made by the accused in her written statement of March 6th, regarding which the only comment she made
during the trial upon being questioned, was that "I was not able to declare very well because they had been intimidating me during the
night", without making any attempt, however, to deny or attack openly its contents.

However, admitting as true the act imputed by the accused to the deceased, — a slight push of the head with the hand — which,
according to her was the cause that led her to stab him, such act does not constitute the unlawful aggression mentioned by the Code, to
repel which it is lawful to employ a means of defense which may be reasonably to necessary. "Considering that an unlawful aggression, as
a fundamental requisite of self-defense is not necessarily implied in any act of aggression against a particular person, when the author of
the same does not persist in his purpose or when he desists therefrom to the extent that the person attacked is no longer in peril: ..."
(Decision of November 30, 1909, Gazette of April 21, 1910.) "Considering that the trial court in finding that the now deceased Manuel Quiros
insulted and gave Jose Izquierdo a hard blow on the head without specifying whether he used his hand or any instrument, and this being
the only act preceding the pulling of the knife and the mortal wounding of his adversary, it is clear that there is no evidence of a situation
calling for legitimate defense by reason of unprovoked aggression, etc." (Decision of November 19, 1883, Gazette of February 3, 1884.)
"Considering that from an examination of the finding of the verdict as a whole, it is evident that from them the existence of unlawful
aggression constituting the first requisite of article 8, No. 4 of said Code cannot be inferred; because the act of the deceased of holding
the appellant by the necktie and of giving him a blow on the neck with the back of the hand without injuring him, are not acts which
would really put in danger the personal safety of the appellant and would justify the defense referred to by the aforesaid provisions, but
were real provocations correctly appreciated by the trial court, whose effects would be restricted to a mitigation of criminal liability, thus
giving them the full extent claimed by the appellant, inasmuch as nowhere in said verdict is found an assertion showing that the deceased
had drawn a weapon or had it in his possession at the time he was provoking the accused with said acts; and because the aforesaid
unlawful aggression did not exist in the criminal act referred to in the verdict, there is no doubt that the appeal cannot be sustained etc."
(Decision of January 25, 1908, Gazette of July 12, 1909.) "Considering that the judicial concept of the exempting circumstance of article 8,
No. 4 of the Penal Code requires, as characteristic elements, an act of violence amounting to an unlawful aggression which would
endanger the personal safety or the rights of the offended party; and this being so, it is evident that neither the shove which the deceased
gave the accused, nor the attempt to strike him with a bench or chair, all which took place in the bar, constitutes a real aggression etc."
(Decision of May 4, 1907, Gazette of October 16 and 22, 1908.)

From the foregoing it may be inferred that, with respect to the question of legitimate self-defense, whether complete or incomplete, the
appeal is without merit. But the appellant prays as an alternative that the following mitigating circumstances be taken into consideration:

(a) Lack on intention to cause so grave an injury as that committed.

In the sentence appealed from, this circumstances was taken into consideration, which we think was an error. The stab-wound
inflicted upon the deceased by the accused was not only mortal, but the victim thus wounded and running away was also
pursued by the accused, knife in had, and the latter would perhaps have inflicted upon him other wounds had it not been for the
timely arrival of policeman Dizon who calmed her bellicose attitude and placed her under arrest. This marked obstinacy of the
accused in her aggression clearly reveals her intention to cause to its full extent the injury she has committed.

(b) That provocation on the part of the deceased has immediately preceded the attack. The appellant claims that the deceased
pushed her head, by reason of which her foot was injured. As stated above, this belated allegation made by the accused at the
trial while testifying as witness in her favor, and of which she made no mention in her statement before the police, is in the opinion
of the court not established by the evidence.

(c) That she acted under obfuscation. We believe that this mitigating circumstance should be taken into consideration in favor of
the accused of the accused, in view of the peculiar circumstances of the case, especially the fact that the accused for three or
four years, and the harsh treatment which the deceased gave the accused on the afternoon of the day in question, a short time
before the aggression. The facts of the instant case are different from those upon which a contrary ruling was laid down by the
court in the cases of United States vs. Hicks (14 Phil., 217), and People vs. Hernandez (43 Phil., 104), cited in the brief for the
prosecution.

(d) Voluntary surrender of the accused to the authorities. The trial court acted correctly in not taking into consideration this
circumstance. (People vs. Siojo, p. 307, ante.)

(e) Lack of Instruction of the accused. This circumstance should be taken into consideration in her favor, it appearing from the
record that she is a mere wage-earner and could not sign her statement before the police and had to affix thereto her
thumbmark.

Except that, in view of the presence of two mitigating circumstances, without any aggravating circumstances, the appropriate
indeterminate penalty to be imposed upon the appellant is from four years of prision correccional as minimum to eight years and one day
of prision mayor as maximum, in all other respects, the sentence appealed from is affirmed with costs. So ordered.

G.R. No. L-51206 August 25, 1989

NORBERTO MASIPEQUINA and JOVENCIO ALAMPAYAN, petitioners,
vs.
HONORABLE COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

Paulino G. Clarin for petitioners.

CORTES, J.:

The extent to which responding peace officers may defend themselves in the face of an attack by the person sought to be apprehended
is the subject of this petition for review.

Petitioners Patrolmen Norberto Mesipequina and Jovencio Alampayan, who were members of the Integrated National Police (INP) of San
Isidro, Bohol, were charged with the crime of homicide for the death of Leopoldo Potane. They were convicted by the trial court and
sentenced to suffer imprisonment of from seven (7) years and one (1) day of prison mayor as minimum to fourteen (14) years, four (4)
months and one (1) day of reclusion temporal as maximum, and to jointly and severally indemnify the heirs of the deceased Leopoldo
Potane in the amount of twelve thousand pesos (P12,000.00).

On appeal, the Solicitor General joined the petitioners in their prayer for acquittal on the theory that petitioners are exempt from liability
because they had acted in self-defense when they shot and killed Leopoldo Potane. But, just the same, the Court of Appeals affirmed the
judgment of the trial court, but modified the penalty of imprisonment to eight (8) years and one (1) day of prison mayor as minimum to
fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as maximum.

Before this Court both the petitioners and the Solicitor General reassert that petitioners should be acquitted because they acted in lawful
self-defense.

There is no dispute about the following facts, which were quoted by the Court of Appeals from the Solicitor General's presentation.

xxx

In the afternoon of December 21, 1976, Barangay Capt. Nicolas Potane of Barrio Abehilan San Isidro, Bohol and his
father, Pedro Potane requested assistance from the Police Sub-station Commander of San Isidro in apprehending
Leopoldo Potane, son of Pedro Potane and elder brother of Nicolas, who has begun to show signs of recurring insanity.
Since his arrival from Mindanao in 1974, Leopoldo had been acting queerly and at times violent. On December 18, 1975,
Leopoldo chased the wife of Nicolas with a bolo and almost hacked her. He always carried a bolo, and had threatened
his own wife, daughter, brothers, and even his parents with death. Fearing for their safety, they transferred temporarily to
the Home Economics building of the barrio school and left Leopoldo alone in the house of his father. Nicolas Potane and
his immediate relatives wanted Leopoldo to be examined and treated by the Provincial Health Officer for his mental
ailment (pp. 19-22, 26-32. t.s.n., Nov. 15, 1976; Exhs. C, C-1 to C-5-A, Folder of Exhibits).lâwphî1.ñèt

Patrolmen Norberto Masipequina and Jovencio Alampayan, the former armed with a 38 cal. revolver and the latter with
the Thompson submachine gun, were ordered by the sub-station commander to arrest Leopoldo. Before proceeding to
the house where Leopoldo was, the policemen passed the store of a certain Ismael Balumia where they had a
conference with Barrio Captain Nicolas Potane; his father, Pedro Potane; his mother, Marganta Potane and others. In
said store a joint affidavit (Exhs. D, D-1 and D-2, Folder of Exhibits), was prepared and signed by Nicolas Potane, Pedro
Potane, Margarita Potane, Clara Potane, Francisca Potane, and Emilia Potane, wife of Leopoldo, authorizing the 'peace
officer of the San Isidro Police Dept. 'to apprehend Leopoldo Potane who was about to run amok.' The document further
stated that if Leopoldo would resist as he is armed with a weapon, the policemen 'have the right to shoot him but not to
kill him ... but if such does not permit, if he resist(s) arrest they have the right to resort to any manner to prevent the fearful
outcome from his running amok' and 'if he would be killed by the police officers on account of his resistance, we, the
parents, brother and sisters, and wife would take no action if something untoward would occur. (pp. 4-8, t.s.n., Dec. 7,
1976).

Thereafter, the two policemen, accompanied by several persons, among whom was Nicolas Potane, went to the house
of Pedro Potane where Leopoldo was. Upon arrival thereat, Pat. Masipequina, a childhood friend of Leopoldo, called
Leopoldo and urged him to come out. He also asked Leopoldo for a drink, but Leopoldo refused to go down the house.
Pat. Masipequina then informed Leopoldo that his father and brother had reported that he (Leopoldo) had chased his
sister-in-law with a bolo and their officer-in-charge sent him to investigate the report. He told Leopoldo to come down so
that they could talk. Leopoldo instead told him to come up (pp. 10-11, t.s.n., Ibid).lâwphî1.ñèt

Pat. Masipequina went up the house followed by Nicolas Potane with a petromax lamp. Patrolman Jovencio
Alampayan and the rest stayed in the yard Although in the yard, Patrolman Alampayan could see what was going on
inside the house because it was a single storey house and had an elevation of only 4 feet (p. 56, t.s.n., Dec. 6, 1976).
Nicolas stayed on the door landing while Masipequina entered the sala and was about to sit down on a rocking chair
when Leopoldo suddenly emerged from an adjacent room and rushed at him swinging a bolo. Masipequina pushed the
rocking chair towards Leopoldo. Leopoldo hit Masipequina on the bridge of the nose (p. 23, t.s.n., Ibid). As the latter
 retracted, he lost his balance and was hit on the right side of his face. At this juncture, Masipequina drew his revolver
and fired three shots. One shot misfired but the other two hit Leopoldo on the chest. Leopoldo continued to advance
towards him. He pushed the rocking chair at Leopoldo and ran out of the house shouting for help. Leopoldo ran after
him. Pat. Masipequina jumped from the house and landed on the ground. In the process he hit his shin on a piece of
stone. Leopoldo also jumped to the ground and continued to pursue Masipequina. As Leopoldo poised to hack Pat.
Masipequina, Pat. Alampayan fired his gun hitting Leopoldo once at the thigh (pp. 25-26, Id., pp. 40, 71, t.s.n., Dec. 6,
1976).

xxx

[CA Decision, pp. 2-4; Rollo, pp. 9-11].

Leopoldo Potane died some thirty (30) minutes later while being brought to the health center for treatment.

The issue is readily apparent: whether or not, given the undisputed facts, petitioner Masipequina had acted in lawful self-defense.
(Petitioner Alampayan's conviction for the crime charged hinges on that of Masipequina as the trial court had found that the two
conspired to kill Leopoldo Potane, as alleged in the information.).

The trial court, however, rejected the defense raised by petitioner. The following reasons, which were cited by the trial court, were adopted
and quoted with approval by the Court of Appeals:

. . . (1) the fact that the accused persisted in their attempts to arrest and/or pick up the victim for almost two (2) hours,
culminating in the tragedy at around nine o'clock that evening; (2) the fact that the victim suffered three gunshot
wounds, two of which were over the heart and admittedly fatal, and the third on the left thigh which was not fatal but
sufficient to cripple him; (3) the fact that all three gunshot wounds bore evidence of gunpowder signs, which is indicative
and conclusive of having been inflicted at close range; (4) the fact that the victim had a 2-inch lacerated wound on his
forehead and another lacerated wound on his right leg which have not been sufficiently explained but are also
indicative of having been inflicted by blunt instruments, like a flashlight or the butts of a revolver or a submachine gun;
and (5) the fact that the alleged injuries of accused Masipequina could not, by any stretch of imagination, be inflicted
by a bolo allegedly wielded by the victim, since they are quite superficial in degree, located in the most improbable
places and may even have been self-inflicted to justify a subsequent claim of self-defense.

xxx

[Rollo, p. 20.]

"The law on self-defense embodied in any penal system in the civilized world finds justification in man's natural instinct to protect, repel, and
save his person and rights from impending danger and peril; it is based on that impulse of self-preservation born to man and part of his
nature as a human being." [People v. Boholst-Caballero, G.R. No. L-23249 November 25,1974,61 SCRA 180, 1 85.] In our jurisdiction it is found
in Article 11 of the Revised Penal Code which provides:

ART. 11. Justifying circumstances. — The following do not incur any criminal liability:

1. Anyone who acts in defense of his person or rights, provided 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.

xxx

It is settled jurisprudence that he who invokes the exempting circumstance of self-defense must prove it during the trial [U.S. v. Coronel, 30
Phil. 112 (1915)]. He must prove the elements enumerated in Article 11 by clear and convincing evidence, the reason being that since he
had admitted having killed or wounded another, which is an act punishable by law, he shall be liable thereof unless he establishes a lawful
defense [People v. Boholst-Caballero, supra]. Thus, the determination of whether or not all the three elements are present in the case.

1. That there was unlawful aggression on the part of the deceased Leopoldo Potane is evident from the established
facts. Leopoldo Potane, who had showed signs of mental illness and had threatened his immediate relatives with a bolo,
suddenly and without provocation attacked with a bolo Masipequina, whom he (Leopoldo Potane) has asked to go
inside the house.

2. That there was reasonable necessity of the means employed by Masipequina to prevent or repel Leopoldo Potane's
attack is also supported by the evidence.
In the leading case of U.S. v. Mojica, 42 Phil. 784 (1922), where a policeman trying to quell a disturbance shot with his revolver and fatally
wounded a man who attacked him with a knife, the Court laid down the following rule:

A police officer, in the performance of his duty, must stand his ground and cannot, like a private individual, take refuge
in flight; his duty requires him to overcome his opponent. The force which he may exert therefore differs somewhat from
that which may ordinarily be offered in self-defense. Bearing this in mind, we do not think that the appellant in using his
revolver against the deceased can be said to have employed unnecessary force. The deceased attacked him with a
deadly weapon; he might, perhaps, have saved himself by running away, but this his duty forbade. Was he to allow
himself to be stabbed before using his arms? It may, perhaps, be argued that the appellant might have used his club,
but a policeman's club is not a very effective weapon as against a drawn knife and a police officer is not required to
afford a person attacking him the opportunity for a fair and equal struggle. (State vs. Phillips, 119 Iowa, 652; 67 L.R.A. 292;
North Carolina vs. Gosnell, 74 Fed., 734; Boykin vs. People, 22 Colo., 496; 45 Pac., 419; Adams vs. State, 72 Ga., 85.) And if
it was necessary for the appellant to use his revolver, he could hardly, under the circumstances, be expected to take
deliberate and careful aim so as to strike a point less vulnerable than the body of his adversary. (U.S. vs. Mack 8 Phil., 701;
U.S. v. Domen 37 Phil., 57.) [Id., p. 787].

Tested by this standard, the means employed by Masipequina in repelling the attack were, under the circumstances, both reasonable and
necessary. He initially tried to defend himself by pushing the rocking chair toward Leopoldo Potane but when that proved futile and he
(Masipequina) was caught in a very precarious position, i.e., his back was on the floor and Leopoldo Potane kept flailing at him with the
bolo, he had no other choice but to use his revolver to defend himself against the attack. Under the circumstances, there was no
opportunity for Masipequina to carefully take aim. He just discharged his weapon at the deceased in the hope that such would save him
from any further injury or death.

It must also be borne in mind that the rule is that the reasonable necessity of the means employed to repel or prevent the attack depends
upon the imminent danger of injury, not on the harm actually done to the accused [U.S. v. Paras, 9 Phil. 367 (1907)]. Thus, that Masipequina
escaped serious injuries does not necessarily imply that the means he used to repel the attack were unreasonable and excessive. The fact
remains that the act of Leopoldo Potane of attacking Masipequina with a bolo was a very real danger to his life that the latter had to repel
the best way he can. That the gunshot wounds he inflicted on Leopoldo Potane proved to be fatal does not make the means he
employed any less reasonable under the circumstances.

3. Then, the lack of sufficient provocation on the part of Masipequina is too plain to even doubt. He, together with Patrolman Alampayan
had been tasked by his superior to apprehend Leopoldo Potane upon complaint of his own father and brother. Thus, petitioners herein,
when they went to apprehend the deceased, were in the performance of their official duties as peace officers. And when they reached
the house where Leopoldo Potane was hiding, Masipequina tried to coax Leopoldo Potane into coming out of the house, but the latter
would not. It was only when Leopoldo Potane asked Masipequina, who was his childhood friend, to enter the house that he did, followed
by Nicolas Potane. Masipequina was about to take a seat, definitely a non-provocative act, when he was suddenly attacked by Leopoldo
Potane with a bolo.

As consistently argued by the Solicitor General before the Court of Appeals and this Court, all the elements of self defense are present in
the instant case:

... (a) [T]here was unlawful aggression on the part of the victim which was a real and imminent threat to the life of Pat.
Masipequina. The victim was brandishing a bolo which he did use in fact to hit the latter; (b) The use of his revolver to
repel the aggression was a reasonable necessity. His life already exposed to danger in the face of a continuous assault,
it is likely that had he not shot the victim, he would have been killed, considering the deranged mind of the aggressor.
Moreover, after he shot the victim, he ran away to avoid being hit farther (sic), an act obviously inconsistent with a
deliberate intent to kill; (c) Pat. Masipequina did not provoke the victim into attacking him. In fact, before he went inside
the house, he asked Leopoldo to come out to talk things over. He even asked for a drink. It was only when the victim
himself asked Pat. Masipequina to go up the house that the latter entered the sala.

xxx

[Manifestation and Motion In Lieu of Respondent People's Brief, p. 12; Rollo, p. 115].

We also hasten to add that, as in the case of People v. Boholst-Caballero, supra, we accord special significance to the wounds inflicted on
the deceased in finding that the elements of self-defense had been established.

According to Dr. Julieta Melicor, who conducted the postmortem examination on the body of the deceased, the trajectory of the two
chest wounds indicate that the person who fired the shots was in a lying and lower position while the deceased was then standing [TSN,
September 2, 1976, pp. 5-6, 10]. This corroborates petitioner Masipequina's testimony that he had his back to the floor when he fired at the
victim who was attacking him with a bolo. The fact that the wounds bore traces of gunpowder, indicating the proximity between the
person who fired the shot and the deceased, also support Masipequina's testimony.

After the elements of self-defense had been established to exculpate petitioners from the charge of homicide, the next question that
arises, albeit only incidentally, is whether or not Alampayan could be separately convicted of the lesser offense of less serious or slight
physical injuries for the gunshot wound he inflicted on Leopoldo Potane's thigh.

Again, we refer to Article 11 of the Revised Penal Code, which provides:

 ART. 11. Justifying circumstances. — The following do not incur any criminal liability:

xxx

3. Anyone who acts in defense of the person or rights of a stranger, provided that the first and second requisites
mentioned in the first circumstance of this article are present and that the person defending be not induced by revenge,
resentment, or other evil motive.

xxx

Thus, the elements of defense of stranger are: (1) unlawful aggression; (2) reasonable necessity of the means employed to prevent or repel
it; and (3) the person defending be not induced by revenge, resentment, or other evil motive.

1. In the instant case, that there was unlawful aggression on the part of Leopoldo Potane had been adequately
established, as discussed earlier with regard to the circumstance of self-defense.

2. Then, that the means employed by Alampayan in trying to prevent Leopoldo Potane from further attacking
Masipequina with a bolo were reasonable is clearly evident, as Alampayan only shot at Leopoldo Potane's thigh to
prevent him from further pursuing Masipequina who was trying to escape Leopoldo Potane's attack.

3. Finally, that Alampayan was not motivated by any evil motive is shown by the fact that he, together with
Masipequina, only proceeded to the place where the incident happened to look for Leopoldo Potane because they
had been ordered by their substation commander to apprehend Leopoldo Potane who had shown signs of mental
derangement and had threatened his relatives with a bolo. In short, the two policemen were in the performance of their
official and lawful duties.

This, the performance of duties, brings to fore another circumstance that would justify Alampayan's wounding of Leopoldo Potane, for the
same Article 11 of the Revised Penal Code exempts from liability [a]ny person who acts in the fulfillment of a duty or in the lawful exercise of
a right or office" [Art. 11, par. 5]. Thus, in one case, the Court acquitted the accused police officers even if their acts constituted the crimes
of discharge of firearm and lesiones graves and menos graves, inflicted upon persons facing criminal charges who were trying to resist
arrest, because the accused officers were in the performance of their official duties [U.S. v. Resaba, 1 Phil. 311 (1902)].

Finally, the small lacerated wounds on Leopoldo Potane's forehead and right leg, which the trial court and the Court of Appeals found
suspicious, can be explained by the fact that Leopoldo Potane dropped to the ground after he was shot on the thigh by Alampayan.
There is nothing on the record to support the conclusion that the wounds were inflicted by a flashlight or gun butt.

In fine, this Court, on the basis of the same facts found by the Court of Appeals, has arrived at a different conclusion. Principally, the Court
of Appeals affirmed the trial court's decision after concluding that one of the elements of self-defense, i.e., reasonable necessity of the
means employed to prevent or repel the attack, was lacking. However, after a careful consideration of the undisputed facts and the rule
on self-defense by police officers enunciated in Mojica, this Court is convinced that said element had been established and that the Court
of Appeals committed a reversible error when it rejected petitioners' defense and affirmed the trial court's judgment of conviction.

WHEREFORE, the petition is GRANTED and the decision of the Court of Appeals is hereby REVERSED. Petitioners Patrolmen Norberto
Masipequina and Jovencio Alampayan are ACQUITTED of the crime charged.

SO ORDERED.

[G.R. No. 135981. September 29, 2000]

PEOPLE OF THE PHILIPPINES, appellee, vs. MARIVIC GENOSA, appellant.

RESOLUTION

PANGANIBAN, J.:

It is a hornbook rule that an appeal in criminal cases opens the entire records to review. The Court may pass upon all relevant issues,
including those factual in nature and those that may not have been brought before the trial court. This is true especially in cases involving
the imposition of the death penalty, in which the accused must be allowed to avail themselves of all possible avenues for their
defense. Even novel theories such as the "battered woman syndrome," which is alleged to be equivalent to self-defense, should be heard,
given due consideration and ruled upon on the merits, not rejected merely on technical or procedural grounds. Criminal conviction must
rest on proof of guilt beyond reasonable doubt.
 The Case

For resolution by the Court is an Urgent Omnibus Motion filed by Appellant Marivic Genosa y Isidro in connection with the automatic
review of the September 25, 1998 "Judgment"[1] of the Regional Trial Court (RTC) of Ormoc City[2] in Criminal Case No. 5016-0. The RTC found
her guilty of parricide aggravated by treachery and sentenced her to death.

In an Information[3] dated November 14, 1996, Provincial Prosecutor I Rosario D. Beleta charged appellant-movant with parricide
allegedly committed 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, blown[ ]up & 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."

After arraignment and trial, the court a quo promulgated its Judgment, the dispositive portion of which 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."

The Antecedents

Prior to the filing of her Appeal Brief, appellant submitted an Urgent Omnibus Motion, [4] to bring "to the attention of the x x x Court
certain facts and circumstances which, if found valid, could warrant the setting aside of [her] conviction and the imposition of the death
penalty."

Appellant alleges that the trial court grievously erred in concluding that she had lied about the means she employed in killing her
husband. On the contrary, she had consistently claimed that she had shot her husband. Yet the trial judge simply ruled that the cause of his
death was "cardiopulmonary arrest secondary to severe intracranial hemorrhage due to a depressed fracture of the occipital bone,"
which resulted from her admitted act of "smashing" him with a pipe. Such conclusion was allegedly unsupported by the evidence on
record, which bore no forensic autopsy report on the body of the victim.

Appellant further alleges that despite the evidence on record of repeated and severe beatings she had suffered at the hands of her
husband, the trial court failed to appreciate her self-defense theory. She claims that under the surrounding circumstances, her act of killing
her husband was equivalent to self-defense. Furthermore, she argues that if she "did not lie about how she killed her husband, then she did
not lie about the abuse she suffered at his hands."

She thus prays for the following reliefs:[5]

"1. The Honorable Court allow an exhumation of the body of the victim, Ben M. Genosa, and a re-examination of the cause of
death.

2. The Honorable Court submit accused-appellant for examination by qualified psychologists and psychiatrists of the Court to
determine her state of mind at the time of the killing of her spouse, Ben M. Genosa.
 3. Thereafter, the Honorable Court allow the reports of the psychologists and psychiatrists to form part of the records of the case
for purposes of the automatic review or, in the alternative, to allow a partial re-opening of the case before a lower court in
Metro Manila to admit the testimony of said psychologists and psychiatrists."

On August 22, 2000, the solicitor general, on behalf of the State, filed his Comment,[6] which substantially objected to the Motion on
the ground that appellant had not been "deprived of her right to due process, substantial or procedural."

The Issues

In brief, the issues for our resolution are (1) whether the body of the victim should be exhumed and reexamined in order to ascertain
the cause of his death, and (2) whether the appellant should be examined by qualified psychologists or psychiatrists in order to determine
her state of mind at the time of the killing.

The Court's Ruling

The Court grants in part the Motion of appellant. We remand the case to the RTC for the reception of evidence from qualified
psychologists or psychiatrists whom the parties may present to establish her state of mind at the time of the killing.

First Issue: No Need for a Reexamination of Cause of Death

Accused-appellant seeks the exhumation of the victim's body to be able to determine his exact cause of death, assailing the court a
quo's conclusion that he was "smashed or beaten at the back of his head" rather than shot, as claimed by appellant.

Considering 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. There is no need to exhume the body at this time and conduct an autopsy thereon for the purpose.

Moreover, the matter of proving the cause of death should have been made before the trial court. Time and again, we have said
that this Court is not a trier of facts. Neither will it authorize the firsthand reception of evidence, where the opportunity to offer the same was
available to the party during the trial stage. Consistent with this principle alone, the prayer sought by appellant for the exhumation of the
victim's body cannot be granted.

Second Issue: The Need to Determine Appellant's State of Mind at the Time of the Killing

In seeking to be "examined and evaluated by psychologists and psychiatrists to bring into evidence the abuse inflicted upon her;
[and] to determine whether such abuse will support the 'battered woman syndrome'," the appellant brings to the fore a novel defense
theory. Through Counsel Katrina Legarda, she asks the Court to "re-evaluate the traditional elements" used in determining self-defense and
to consider the "battered woman syndrome" as a viable plea within the concept of self-defense.

Allegedly, there are four characteristics of the syndrome: (1) the woman believes that the violence was her fault; (2) she has an
inability to place the responsibility for the violence elsewhere; (3) she fears for her life and/or her children's lives; and (4) she has an irrational
belief that the abuser is omnipresent and omniscient.[7] 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.

Appellant further alleges that the syndrome is already a recognized form of self-defense in the United States and in Europe. In the US
particularly, it is classified as a post-traumatic stress disorder, rather than a form of mental illness.[8] It has been held admissible in order to
assess a defendant's perception of the danger posed by the abuser.[9]

In view of the foregoing, Appellant Genosa pleads that she be allowed to present evidence to prove that her relationship with her
spouse-victim had afflicted her with the syndrome. Allegedly, an expert can explain how her experiences as a battered woman had
affected her perception of danger and her honest belief in its imminence, and why she had resorted to force against her batterer.

The records of the case already bear some evidence on domestic violence between appellant and her deceased husband. A
defense witness, Dr. Dino Caing, testified that she had consulted him at least six (6) times due to injuries related to domestic violence and
twenty-three (23) times for severe hypertension due to emotional stress.[10] Even the victim's brother and mother attested to the spouses'
quarrels every now and then. The court a quo, however, simplistically ruled that since violence had not immediately preceded the killing,
self-defense could not be appreciated.
 Indeed, there is legal and jurisprudential lacuna with respect to the so-called "battered woman syndrome" as a possible modifying
circumstance that could affect the criminal liability or penalty of the accused.The discourse of appellant on the subject in her Omnibus
Motion has convinced the Court that the syndrome deserves serious consideration, especially in the light of its possible effect on her very
life. It could be that very thin line between death and life or even acquittal. The Court cannot, for mere technical or procedural objections,
deny appellant the opportunity to offer this defense, for any criminal conviction must be based on proof of guilt beyond reasonable
doubt. Accused persons facing the possibility of the death penalty must be given fair opportunities to proffer all defenses possible that
could save them from capital punishment.

In People v. Parazo,[11] after final conviction of appellant therein, this Court granted his Urgent Omnibus Motion and allowed him to
undergo mental, neurologic and otolaryngologic examination and evaluation to determine whether he was a deaf-mute. Based on
findings that he really was deaf and mute, yet unaided during the trial by an expert witness who could professionally understand and
interpret his actions and mutterings, the Court granted him re-arraignment and retrial. It justified its action on the principle that "only upon
proof of guilt beyond reasonable doubt may [the accused] be consigned to the lethal injection chamber."

More recently in People v. Estrada,[12] we likewise nullified the trial proceedings and remanded the case "to the court a quo for a
conduct of a proper mental examination on accused-appellant, a determination of his competency to stand trial, and for further
proceedings." In that case, the defense counsel had moved to suspend the arraignment of the accused, who could not properly and
intelligently enter a plea because of his mental defect, and to confine him instead in a psychiatric ward. But the trial court denied the
Motion, after simply propounding questions to the accused and determining for itself that he could understand and answer them
"intelligently." After trial, he was convicted of murder aggravated by cruelty and thus sentenced to death.

In nullifying the trial proceedings, this Court noted:[13]

"The trial court took it solely upon itself to determine the sanity of accused-appellant. The trial judge is not a psychiatrist or psychologist or
some other expert equipped with the specialized knowledge of determining the state of a person's mental health. To determine the
accused-appellant's competency to stand trial, the court, in the instant case, should have at least ordered the examination of accused-
appellant, especially in the light of the latter's history of mental illness."

It was held that in denying appellant an examination by a competent medical expert, the trial court practically denied him a fair trial
prior to conviction, in violation of his constitutional rights.

Moreover, proof of insanity could have exempted appellant from criminal liability. If the accused had not performed the act
voluntarily, then he could not have been criminally liable. The Court, through Mr. Justice Reynato S. Puno, emphasized:

"The basic principle in our criminal law is that a person is criminally liable for a felony committed by him. Under the classical theory on which
our penal code is mainly based, the basis of criminal liability is human free will. Man is essentially a moral creature with an absolutely free
will to choose between good and evil. When he commits a felonious or criminal act (delito doloso), the act is presumed to have been
done voluntarily, i.e., with freedom, intelligence and intent. Man, therefore, should be adjudged or held accountable for wrongful acts so
long as free will appears unimpaired."[14]

In the instant case, it is equally important to determine whether Appellant Genosa had acted freely, intelligently and voluntarily when
she killed her spouse. The Court, however, cannot properly evaluate her battered-woman-syndrome defense, absent expert testimony on
her mental and emotional state at the time of the killing and the possible psychological cause and effect of her fatal act. Unlike in Parazo,
we cannot simply refer her for proper psychological or psychiatric examination and thereafter admit the findings and evaluation as part of
the records of the cases for purposes of automatic review. The prosecution has likewise the right to a fair trial, which includes the
opportunity to cross-examine the defense witnesses and to refute the expert opinion given. Thus, consistent with the principle of due
process, a partial reopening of the case is apropos, so as to allow the defense the opportunity to present expert evidence consistent with
our foregoing disquisition, as well as the prosecution the opportunity to cross examine and refute the same.

WHEREFORE, the Urgent Omnibus Motion of Appellant Marivic Genosa is PARTLY GRANTED. The case is hereby REMANDED 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.

SO ORDERED.

C.A. No. 384 February 21, 1946

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NICOLAS JAURIGUE and AVELINA JAURIGUE, defendants.
AVELINA JAURIGUE, appellant.

Jose Ma. Recto for appellant.

Assistant Solicitor General Enriquez and Solicitor Palma for appellee..

DE JOYA, J.:

Nicolas Jaurigue and Avelina Jaurigue were prosecuted in the Court of First Instance of Tayabas, for the crime of murder, of which Nicolas
Jaurigue was acquitted, but defendant Avelina Jaurigue was found guilty of homicide and sentenced to an indeterminate penalty
ranging from seven years, four months and one day of prision mayor to thirteen years, nine months and eleven days of reclusion
temporal, with the accessory penalties provided by law, to indemnify the heirs of the deceased, Amando Capina, in the sum of P2,000,
and to pay one-half of the costs. She was also credited with one-half of the period of preventive imprisonment suffered by her.

From said judgment of conviction, defendant Avelina Jaurigue appealed to the Court of Appeals for Southern Luzon, and in her brief filed
therein on June 10, 1944, claimed —

(1) That the lower court erred in not holding that said appellant had acted in the legitimate defense of her honor and that she
should be completely absolved of all criminal responsibility;

(2) That the lower court erred in not finding in her favor the additional mitigating circumstances that (a) she did not have the
intention to commit so grave a wrong as that actually committed, and that (b) she voluntarily surrendered to the agents of the
authorities; and

(3) That the trial court erred in holding that the commission of the alleged offense was attended by the aggravating circumstance
of having been committed in a sacred place.

The evidence adduced by the parties, at the trial in the court below, has sufficiently established the following facts:

That both the defendant and appellant Avelina Jaurigue and the deceased Amado Capina lived in the barrio of Sta. Isabel, City of San
Pablo, Province of Laguna; that for sometime prior to the stabbing of the deceased by defendant and appellant, in the evening of
September 20, 1942, the former had been courting the latter in vain, and that on one occasion, about one month before that fatal night,
Amado Capina snatched a handkerchief belonging to her, bearing her nickname "Aveling," while it was being washed by her cousin,
Josefa Tapay.

On September 13, 1942, while Avelina was feeding a dog under her house, Amado approached her and spoke to her of his love, which she
flatly refused, and he thereupon suddenly embraced and kissed her and touched her breasts, on account of which Avelina, resolute and
quick-tempered girl, slapped Amado, gave him fist blows and kicked him. She kept the matter to herself, until the following morning when
she informed her mother about it. Since then, she armed herself with a long fan knife, whenever she went out, evidently for self-protection.

On September 15, 1942, about midnight, Amado climbed up the house of defendant and appellant, and surreptitiously entered the room
where she was sleeping. He felt her forehead, evidently with the intention of abusing her. She immediately screamed for help, which
awakened her parents and brought them to her side. Amado came out from where he had hidden under a bed in Avelina's room and
kissed the hand of Nicolas Jaurigue, her father, asking for forgiveness; and when Avelina's mother made an attempt to beat Amado, her
husband prevented her from doing so, stating that Amado probably did not realize what he was doing. Nicolas Jaurigue sent for the barrio
lieutenant, Casimiro Lozada, and for Amado's parents, the following morning. Amado's parents came to the house of Nicolas Jaurigue and
apologized for the misconduct of their son; and as Nicolas Jaurigue was then angry, he told them to end the conversation, as he might not
be able to control himself.

In the morning of September 20, 1942, Avelina received information that Amado had been falsely boasting in the neighborhood of having
taken liberties with her person and that she had even asked him to elope with her and that if he should not marry her, she would take
poison; and that Avelina again received information of Amado's bragging at about 5 o'clock in the afternoon of that same day.

At about 8 o'clock in the evening of the same day, September 20, 1942, Nicolas Jaurigue went to the chapel of the Seventh Day Adventists
of which he was the treasurer, in their barrio, just across the provincial road from his house, to attend religious services, and sat on the front
bench facing the altar with the other officials of the organization and the barrio lieutenant, Casimiro Lozada. Inside the chapel it was quite
bright as there were electric lights.

Defendant and appellant Avelina Jaurigue entered the chapel shortly after the arrival of her father, also for the purpose of attending
religious services, and sat on the bench next to the last one nearest the door. Amado Capina was seated on the other side of the chapel.
Upon observing the presence of Avelina Jaurigue, Amado Capina went to the bench on which Avelina was sitting and sat by her right side,
and, without saying a word, Amado, with the greatest of impudence, placed his hand on the upper part of her right thigh. On observing
this highly improper and offensive conduct of Amado Capina, Avelina Jaurigue, conscious of her personal dignity and honor, pulled out
with her right hand the fan knife marked Exhibit B, which she had in a pocket of her dress, with the intention of punishing Amado's offending
hand. Amado seized Avelina's right hand, but she quickly grabbed the knife with her left hand and stabbed Amado once at the base of
the left side of the neck, inflicting upon him a wound about 4 1/2 inches deep, which was necessarily mortal. Nicolas Jaurigue, who was
seated on one of the front benches, saw Amado bleeding and staggering towards the altar, and upon seeing his daughter still holding the
bloody knife, he approached her and asked: "Why did you do that," and answering him Avelina said: "Father, I could not endure anymore."
Amado Capina died from the wound a few minutes later. Barrio lieutenant Casimiro Lozada, who was also in the same chapel,
approached Avelina and asked her why she did that, and Avelina surrendered herself, saying: "Kayo na po ang bahala sa aquin,"
meaning: "I hope you will take care of me," or more correctly, "I place myself at your disposal." Fearing that Amado's relatives might
retaliate, barrio lieutenant Lozada advised Nicolas Jaurigue and herein defendant and appellant to go home immediately, to close their
doors and windows and not to admit anybody into the house, unless accompanied by him. That father and daughter went home and
locked themselves up, following instructions of the barrio lieutenant, and waited for the arrival of the municipal authorities; and when three
policemen arrived in their house, at about 10 o'clock that night, and questioned them about the incident, defendant and appellant
immediately surrendered the knife marked as Exhibit B, and informed said policemen briefly of what had actually happened in the chapel
and of the previous acts and conduct of the deceased, as already stated above, and went with said policemen to the police
headquarters, where her written statements were taken, and which were presented as a part of the evidence for the prosecution.
The high conception of womanhood that our people possess, however humble they may be, is universal. It has been entertained and has
existed in all civilized communities.

A beautiful woman is said to be a jewel; a good woman, a treasure; and that a virtuous woman represents the only true nobility. And they
are the future wives and mothers of the land. Such are the reasons why, in the defense of their honor, when brutally attacked, women are
permitted to make use of all reasonable means available within their reach, under the circumstances. Criminologists and courts of justice
have entertained and upheld this view.

On the other hand, it is the duty of every man to protect and show loyalty to womanhood, as in the days of chivalry. There is a country
where women freely go out unescorted and, like the beautiful roses in their public gardens, they always receive the protection of all. That
country is Switzerland.

In the language of Viada, aside from the right to life on which rests the legitimate defense of our own person, we have the right to property
acquired by us, and the right to honor which is not the least prized of our patrimony (1 Viada, Codigo Penal, 5th ed., pp. 172, 173).

The attempt to rape a woman constitutes an unlawful aggression sufficient to put her in a state of legitimate defense, inasmuch as a
woman's honor cannot but be esteemed as a right as precious, if not more, than her very existence; and it is evident that a woman who,
thus imperiled, wounds, nay kills the offender, should be afforded exemption from criminal liability, since such killing cannot be considered
a crime from the moment it became the only means left for her to protect her honor from so great an outrage (1 Viada, Codigo Penal, 5th
ed., p. 301; People vs. Luague and Alcansare, 62 Phil., 504). .

As long as there is actual danger of being raped, a woman is justified in killing her aggressor, in the defense of her honor. Thus, where the
deceased grabbed the defendant in a dark night at about 9 o'clock, in an isolated barrio trail, holding her firmly from behind, without
warning and without revealing his identity, and, in the struggle that followed, touched her private parts, and that she was unable to free
herself by means of her strength alone, she was considered justified in making use of a pocket knife in repelling what she believed to be an
attack upon her honor, and which ended in his death, since she had no other means of defending herself, and consequently exempt from
all criminal liability (People vs. De la Cruz, 16 Phil., 344).

And a woman, in defense of her honor, was perfectly justified in inflicting wounds on her assailant with a bolo which she happened to be
carrying at the time, even though her cry for assistance might have been heard by people nearby, when the deceased tried to assault her
in a dark and isolated place, while she was going from her house to a certain tienda, for the purpose of making purchases (United States
vs. Santa Ana and Ramos, 22 Phil., 249).

In the case, however, in which a sleeping woman was awakened at night by someone touching her arm, and, believing that some person
was attempting to abuse her, she asked who the intruder was and receiving no reply, attacked and killed the said person with a pocket
knife, it was held that, notwithstanding the woman's belief in the supposed attempt, it was not sufficient provocation or aggression to justify
her completely in using deadly weapon. Although she actually believed it to be the beginning of an attempt against her, she was not
completely warranted in making such a deadly assault, as the injured person, who turned out to be her own brother-in-law returning home
with his wife, did not do any other act which could be considered as an attempt against her honor (United States vs. Apego, 23 Phil., 391)..

In the instant case, if defendant and appellant had killed Amado Capina, when the latter climbed up her house late at night on
September 15, 1942, and surreptitiously entered her bedroom, undoubtedly for the purpose of raping her, as indicated by his previous acts
and conduct, instead of merely shouting for help, she could have been perfectly justified in killing him, as shown by the authorities cited
above..

According to the facts established by the evidence and found by the learned trial court in this case, when the deceased sat by the side of
defendant and appellant on the same bench, near the door of the barrio chapel and placed his hand on the upper portion of her right
thigh, without her consent, the said chapel was lighted with electric lights, and there were already several people, about ten of them,
inside the chapel, including her own father and the barrio lieutenant and other dignitaries of the organization; and under the
circumstances, there was and there could be no possibility of her being raped. And when she gave Amado Capina a thrust at the base of
the left side of his neck, inflicting upon him a mortal wound 4 1/2 inches deep, causing his death a few moments later, the means
employed by her in the defense of her honor was evidently excessive; and under the facts and circumstances of the case, she cannot be
legally declared completely exempt from criminal liability..

But the fact that defendant and appellant immediately and voluntarily and unconditionally surrendered to the barrio lieutenant in said
chapel, admitting having stabbed the deceased, immediately after the incident, and agreed to go to her house shortly thereafter and to
remain there subject to the order of the said barrio lieutenant, an agent of the authorities (United States vs. Fortaleza, 12 Phil., 472); and the
further fact that she had acted in the immediate vindication of a grave offense committed against her a few moments before, and upon
such provocation as to produce passion and obfuscation, or temporary loss of reason and self-control, should be considered as mitigating
circumstances in her favor (People vs. Parana, 64 Phil., 331; People vs. Sakam, 61 Phil., 27; United States vs. Arribas, 1 Phil., 86).

Defendant and appellant further claims that she had not intended to kill the deceased but merely wanted to punish his offending hand
with her knife, as shown by the fact that she inflicted upon him only one single wound. And this is another mitigating circumstance which
should be considered in her favor (United States vs. Brobst, 14 Phil., 310; United States vs. Diaz, 15 Phil., 123).

The claim of the prosecution, sustained by the learned trial court, that the offense was committed by the defendant and appellant, with
the aggravating circumstance that the killing was done in a place dedicated to religious worship, cannot be legally sustained; as there is
no evidence to show that the defendant and appellant had murder in her heart when she entered the chapel that fatal night. Avelina is
not a criminal by nature. She happened to kill under the greatest provocation. She is a God-fearing young woman, typical of our country
girls, who still possess the consolation of religious hope in a world where so many others have hopelessly lost the faith of their elders and now
drifting away they know not where.

The questions raised in the second and third assignments of error appear, therefore, to be well taken; and so is the first assignment of error
to a certain degree.

In the mind of the court, there is not the least doubt that, in stabbing to death the deceased Amado Capina, in the manner and form and
under the circumstances above indicated, the defendant and appellant committed the crime of homicide, with no aggravating
circumstance whatsoever, but with at least three mitigating circumstances of a qualified character to be considered in her favor; and, in
accordance with the provisions of article 69 of the Revised Penal Code, she is entitled to a reduction by one or two degrees in the penalty
to be imposed upon her. And considering the circumstances of the instant case, the defendant and appellant should be accorded the
most liberal consideration possible under the law (United States vs. Apego, 23 Phil., 391; United States vs. Rivera, 41 Phil., 472; People vs.
Mercado, 43 Phil., 950)..

The law prescribes the penalty of reclusion temporal for the crime of homicide; and if it should be reduced by two degrees, the penalty to
be imposed in the instant case is that of prision correccional; and pursuant to the provisions of section 1 of Act No. 4103 of the Philippine
Legislature, known as the Indeterminate Sentence Law, herein defendant and appellant should be sentenced to an indeterminate penalty
ranging from arresto mayor in its medium degree, to prision correccional in its medium degree. Consequently, with the modification of
judgment appealed from, defendant and appellant Avelina Jaurigue is hereby sentenced to an indeterminate penalty ranging from two
months and one day of arresto mayor, as minimum, to two years, four months, and one day of prision correccional, as maximum, with the
accessory penalties prescribed by law, to indemnify the heirs of the deceased Amado Capina, in the sum of P2,000, and to suffer the
corresponding subsidiary imprisonment, not to exceed 1/3 of the principal penalty, in case of insolvency, and to pay the costs. Defendant
and appellant should also be given the benefit of 1/2 of her preventive imprisonment, and the knife marked Exhibit B ordered confiscated.
So ordered..

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.

G.R. No. L-18660 December 22, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
FELIPE DELIMA, defendant-appellant.

Tancinco & Rosales for appellant.

Attorney-General Villa-Real for appellee.

ROMUALDEZ, J.:

Lorenzo Napilon had escaped from the jail where he was serving sentence.

Some days afterwards the policeman Felipe Delima, who was looking for him, found him in the house of Jorge Alegria, armed with a
pointed piece of bamboo in the shape of a lance, and demanded his surrender. The fugitive answered with a stroke of his lance. The
policeman dodged, it, and to impose his authority fired his revolver, but the bullet did not hit him. The criminal ran away, without parting
with his weapon. These peace officer went after him and fired again his revolver, this time hitting and killing him.

The policeman was tried and convicted for homicide and sentenced to reclusion temporal and the accessory penalties. He appeals from
that judgment which must be reversed.

That killing was done in the performance of a duty. The deceased was under the obligation to surrender, and had no right, after evading
service of his sentence, to commit assault and disobedience with a weapon in the hand, which compelled the policeman to resort to such
an extreme means, which, although it proved to be fatal, was justified by the circumstances.lawphil.net

Article 8, No. 11, of the Penal Code being considered, Felipe Delima committed no crime, and he is hereby acquitted with the costs de
oficio. So ordered.

G.R. Nos. L-30012-15 March 7, 1929

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
JOSEPH L. WILSON and ALFREDO DOLORES, defendants-appellants.

Gregorio Perfecto for appellant Wilson.

Vicente Sotto for appellant Dolores.
Attorney-General Jaranilla for appellee.

OSTRAND, J.:

In criminal cases Nos. 35408, 35426, 25447, and 35473 of the Court of First Instance of Manila, the defendant Joseph L. Wilson was convicted
of the crimes of falsification of a mercantile document, falsification of a mercantile document, and estafa, respectively. He appealed to
this court from the judgments in all four cases. After the cases were submitted, but before the decisions had been rendered, the appellant,
who was admitted to bail, fled the jurisdiction of the court and left the Philippine Islands under an assumed name.

Upon the reliable information as to the defendant Wilson's action, the Attorney-General moved that the appeal taken by said defendant
from the judgments of conviction rendered by the Court of First Instance in the aforesaid four cases be declared withdrawn and that said
judgment be declared final. Counsel for the defendant opposes the motion and, in substance, argues that inasmuch as his client has duly
perfected the appeal and has presented his brief in due time, it is the duty of the court to decide the case on the merits.

The law upon subject is well settled, and the authorities are practically unanimous that in the absence of a statute regulating the practise, it
is within the sound discretion of the appellate court to determine whether the case shall be postponed to await the recapture of the
accused, or the appeal shall be dismissed. And this rule applies whether the accused escapes from custody in jail or is constructively in
custody by being admitted to bail. (Warnick vs. State, 73 Ala., 486; People vs. Redinger, 55 Cal., 290; Bronk vs. Bronk, 46 Fla., 474; McGowan
vs. People, 104 Ill., 100; State vs. Scott, 70 Kan., 692; Wilson vs. Com., 10 Bush [Ky.] 526; State vs. Wright, 32 La. Ann., 1017; People vs. Genet.
59 N. Y., 80; State vs. Jacobs, 107 N. C., 772; Tyler vs. State, 3 Okla. Crim., 179; U. S. vs. Ravidas, 4 Phil., 271. See also note in 3 Ann Cas., 512.)
The principle upon which this rule rest is that a party appealing who flees the jurisdiction, pending the appeal, is in contempt of the
authority of the court and of the law and places himself in position to speculate on the chances for a reversal, meanwhile keeping out of
the reach of justice at his option. Such conduct is intolerable and does not invite leniency on the part of the apellate court.

The defendant has fled to a foreign country, is now a fugitive from justice, and there is a presumption that the judgments of the court below
are in accordance with the law and the facts. Said judgments against Joseph L. Wilson are therefore declared final, and his appeal is
dismissed with the costs against the defendant. So ordered.

G.R. Nos. L-30012-30015 March 9, 1929

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
JOSEPH L. WILSON and ALFREDO DOLORES, defendants-appellants.

Vicente Sotto for appellant Dolores.

Gregorio Perfecto for appellant Wilson.
Attorney-General Jaranilla for appellee.

OSTRAND, J.:

The defendant Alfredo Dolores was accused with Joseph L. Wilson in criminal cases Nos. 35408 (G. R. No. 30012), 35426 (G. R. No. 30013),
and 35447 (G. R. No. 30014) of the crimes of falsification of a telegraphic dispatch, estafa through falsification of mercantile document,
and falsification of a mercantile document, respectively. In the information filed in the criminal case No. 35408, it is alleged that "on or
about the 26th day of September, 1927, in the City of Manila, Philippine Islands, the said accused being then employees of the San Carlos
Milling Company, a business from doing business in this city, conspiring and confederating together, did then and there willfully, unlawfully,
feloniously, with grave abuse of confidence and with intent of gain, falsify a cable or telegraphic dispatch, to wit: a cablegram in the
following manner: the said accused, taking advantage of their positions as employees of the aforesaid San Carlos Milling Company of
which Alfred D. Cooper was then the manager, prepared and caused to be prepared on the front page of a cablegram form used by the
Commercial Pacific Cable Co., of said city, the following code cablegram:

SCARLOSCO HONOLULU

WYSUXMOOJL.

which, deciphered, reads as follows:

SCARLOSCO — San Carlos Milling Co., Ltd.

HONOLULU — Honolulu
 WYSUX — Deposit Irving Bank — Columbia Trust Co., New York for account China Banking Corporation, Manila, account
San Carlos Milling Co., Ltd., $———; instruct Irving Bank-Columbia Trust Co., advise Manila of deposit by cable.

MOOJL — 100,000

and wrote on the back thereof in typewriter at the space provided for the name and address of the sender the following:

ALFRED D. COOPER

By (Sgd.) ALFREDO DOLORES

227 David, Manila

thereby causing it to appear that the above-mentioned cablegraphic message was prepared and sent by and under the
authority and with the knowledge and consent of Alfred D. Cooper, then manager of the San Carlos Milling Company wherein
the said accused were then employed, when in truth and in fact, as the said accused very well knew, the said Alfred D. Cooper
never authorized, nor had any knowledge of, nor gave his permission to the preparation and sending of the said cablegraphic
message; that the said accused, once having forged and falsified the above- mentioned cablegraphic message in the manner
above described, presented the same to the office of the Commercial Pacific Cable Company for the due transmission.

The information filed in criminal case No. 35426 charges that "on or about September 29, 1927, in the City of Manila, Philippine Islands, the
above named defendants, who were then employees or clerks of a mercantile concern known as "San Carlos Milling Co., Ltd.," duly
organized in this locality, with grave abuse of confidence and with the intention to defraud and prejudice said institution and the local
banking institution known as "Bank of the Philippine Islands," acting upon a common agreement, and cooperating with each other and
conspiring together, falsified a mercantile document, to wit, a check against the Bank of the Philippine Islands for the sum of two hundred
thousand pesos by forging and simulating at the bottom and in the indorsement of said check the signatures of Newland Baldwin,
Manager of the San Carlos Milling Co., Inc., and falsely causing it to appear that said Newland Baldwin intervened in said check, when in
fact said Newland Baldwin never had such intervention, so that the aforesaid check, once falsified, reads as follows:

No. A-352046

THE BANK OF THE PHILIPPINE ISLANDS

OFFICIAL DEPOSITORY OF THE PHILIPPINE GOVERNMENT

MANILA, P. I., September 29, 1927

Pay to San Carlos Milling Co., Ltd., or order Pesos Two Hundred Thousand & 00/100 only (P200,000), Philippine currency.

SAN CARLOS MILLING CO., LTD.

By NEWLAND BALDWIN

For Agent

that once said check was falsified, prepared, and drawn as above stated, the said accused, containing the collusion and
conspiracy plotted by them, presented it for payment to the Bank of the Philippine Islands, falsely and fraudulently stating and
representing to said bank and its officers that the check was authentic and duly signed by Newland Baldwin, manager of said
company, San Carlos Milling Co., Ltd., in the ordinary course of its business, the accused herein having succeeded, through said
falsification and deceitful representations, in collecting the amount of the check aforesaid in the Bank of the Philippine Islands, to
wit, two hundred pesos (P200,000), which said defendants misappropriated and converted to their personal use and benefit, to
the damage and prejudice of said institutions, to wit, the San Carlos Milling Co., Ltd., and the Bank of the Philippine Islands, in the
aforesaid sum of two hundred thousand pesos (P200,000), Philippine currency, equivalent to 1,000,000 pesetas.

The information filed in the criminal case No. 35477 reads as follows:

That on or about September 28, 1927, in the City of Manila, Philippine Islands, the above named defendants, who were then
employees or clerks of a mercantile concern known as San Carlos Milling Co., Ltd., of this locality, with grave abuse of confidence
and with the intention to prejudice said institution, acting upon a common agreement and cooperating with each other and
conspiring together, did willfully, unlawfully and criminally falsify, in a mercantile document, to wit, the "Manager's Check" No.
17444 of the China Banking Corporation, of September 28, 1927, is issued in favor of the San Carlos Milling Co., Ltd., for the sum of
two hundred thousand and one pesos (P200,001), the signature of one Newland Baldwin, Manager of said San Carlos Milling Co.,
Ltd., by forging, simulating, and imitating it in the indorsement on the back of said document, and falsely causing it to appear in
said indorsement that Newland Baldwin intervened therein, when in fact said Newland Baldwin never had such intervention, so
that, once falsified, said indorsement reads as follows:

For deposit only with Bank of the Philippine Islands, to credit of account of San Carlos Milling Co., Ltd.,
 By NEWLAND BALDWIN
For Agent

Upon being arraigned on the above-quoted informations, the defendant Alfredo Dolores pleaded not guilty and, upon motion by the
prosecution, and with the conformity of the attorneys for the defense, a joint trial of the above-mentioned cases with respect to the
defendant Alfredo Dolores was had.

The trial court found the defendant Alfredo A, Dolores guilty as principal, by direct participation and in conspiracy with Joseph L. Wilson, of
the crimes alleged in the informations filed in criminal cases Nos. 35408, 35426 and 35447, and sentenced him in a criminal case No. 35408,
for the crime of falsification of a telegraphic dispatch with the presence of the aggravating circumstance of abuse of confidence, to four
years, nine months, and eleven days of prision correccional, to the corresponding accessory penalties, and to pay one-half of the costs of
the proceedings; in criminal case No. 35426, for the crime of estafa through falsification of a mercantile document, to eight years
of presidio mayor, to the corresponding accessory penalties, and to pay one-half of the costs of the proceedings; and in criminal case No.
35447, for the crime of falsification of a mercantile document, with the presence of the aggravating circumstance of abuse of confidence,
to four years, nine months, and eleven days of prision correccional, to pay a fine of 12,500 pesetas, with subsidiary imprisonment in case of
insolvency, to the corresponding accessory penalties, and to pay one-half of the costs of the proceedings. From these judgment the
defendant Dolores appealed.

The evidence fully sustains the findings of the court below and leaves no doubt whatever as to the appellant's guilt, but his counsel insists
that the court erred (1) in holding that "in preparing and in sending the false cablegram, Exhibit A (case No. 35408), as well as in preparing
and in negotiating the check no less false, Exhibit C (case No. 35426) and in later collecting its value, and in likewise preparing the false
commercial documents, Exhibits A and B, of the criminal case No. 35447, it was the idea of the said accused to benefit himself and
damage another," and (2) in holding that the defendant Alfredo Dolores wanted to defraud and damage or, more correctly, defrauded
and damaged the San Carlos Milling Co., Ltd., and the Bank of the Philippine Islands.

Under the first assignment of error, counsel argues that the defendant Dolores did nothing but carry out the orders of his superior, Joseph L.
Wilson, and that he, consequently, is exempt from criminal responsibility. This argument is entirely groundless. In order to work exemption
from criminal responsibility for obeying the orders of a superior, it must be shown that the person who gives the order and the person who
executes it acting within the limitations prescribed by law. That is not the case here. In his brief, the Attorney-General well and truly says:

The evidence of record clearly shows that the defendant Alfredo Dolores took direct part in, and cooperated with his
codefendant Joseph L. Wilson by means of acts prior to, and simultaneous with, the perpetration of the crimes in question. He
cooperated in the drafting of the checks and other documents for the falsification of which he is now prosecuted, and he was
the one who cashed said check and withdrew the money from the bank. He furthermore received from Joseph L. Wilson the sum
of P10,000 as his share in the embezzled amount. It cannot be maintained, therefore, that Alfredo Dolores merely obeyed his
superiors, and that he was not informed of the fact that his codefendant, Joseph L. Wilson intended to embezzle said money.

Moreover, the behavior of the defendant Alfredo Dolores subsequent to the commission of the crimes in question clearly shows his
guilt. It is proven that after the withdrawal of the amount of P200,000 from the Bank of the Philippine Islands, he was seen in secret
conversation with Joseph L. Wilson in Calle Herran, Paco; that from that day he had been hiding from the authorities; that he had
registered at the Plaza Hotel under the name of Jose Gil; that he went to Sorsogon and Albay, where he represented himself as
Patricio Lopez; that in Albay he attempted to Board a foreign vessel, but did not succeed in his attempt. The flight of a person
after the commission of an offense, while it does not constitute a presumption of guilt, is nevertheless a circumstance indicative of
his guilt (U. S. vs Sarikala, 37 Phil., 486; U. S. vs. Virrey, 37 Phil., 618).

The second assignment of error evidently relates to case G. R. No. 30013 (estafa through falsification of a mercantile document) and
requires no refutation. The conspirators carried away P200,001, and, of course, someone suffered the loss. Whether the loss fell on the San
Carlos Milling Co., Ltd., or on the Bank of the Philippine Islands is immaterial; it is sufficient that it was sustained by a person or persons, other
than the perpetrators of the crime. It is to be observed that the trial court, at the request of the interested parties, made no
pronouncement as to the indemnity and that, therefore, the civil responsibility is not involved in the cases before us.

The judgment appealed from are affirmed with the costs against the appellant. So ordered.

G.R. No. L-52688 October 17, 1980

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
HONORATO AMBAL, accused-appellant.

AQUINO, J.:

Honorato Ambal appealed from the decision of the Court of First Instance of Camiguin convicting him of parricide, sentencing him
to reclusion perpetua and ordering him to pay an indemnity of twelve thousand pesos to the heirs of his deceased wife, Felicula Vicente-
Ambal (Criminal Case No. 155-C).
In the morning of January 20, 1977, the barangay captain found under some flowering plants near the house of Honorato Ambal located in
Barrio Balbagon, Mambajao, Camiguin, Felicula Vicente-Ambal, 48, mortally wounded. She asked for drinking water and medical
assistance.

She sustained seven incised wounds in different parts of her body. She was placed in an improvised hammock and brought to the hospital
where she died forty minutes after arrival thereat (Exh. B and G).

On that same morning, Honorato Ambal, husband of Felicula, after entrusting his child to a neighbor, went to the house of the barangay
captain and informed the latter's spouse that he (Honorato) had killed his wife Feling. After making that oral confession, Ambal took a
pedicab, went to the municipal hall and surrendered to a policeman, also confessing to the latter that he had liquidated his wife.

The policeman confiscated Ambal's long bolo, the tip of which was broken (Exh. F). Ambal was bespattered with blood. His shirt was torn.
He appeared to be weak.

The killing was the climax of a fifteen-year-old marriage featured by quarrels and bickerings which were exacerbated by the fact that the
wife sometimes did not stay in the conjugal abode and chose to spend the night in the poblacion of Mambajao. The couple had eight
children.

The immediate provocation for the assault was a quarrel induced by Felicula's failure to buy medicine for Ambal who was afflicted with
influenza. The two engaged in a heated alteration. Felicula told her husband that it would be better if he were dead ("Mas maayo ka pang
mamatay"). That remark infuriated Ambal and impelled him to attack his wife (Exh. 1).

On January 27, 1977, a police lieutenant charged Ambal with parricide in the municipal court. After a preliminary examination, the case
was elevated to the Court of First Instance where on March 4, 1977 the fiscal filed against Ambal an information for parricide. At the
arraignment, Ambal, assisted by counsel de oficio, pleaded not guilty.

After the prosecution had presented its evidence, accused's counsel de oficio manifested that the defense of Ambal was insanity.

The trial court in its order of September 15, 1977 directed the municipal health officer, Doctor Maximino R. Balbas, Jr., a 1960 medical
graduate who had undergone a six-month training in psychiatry in the National Mental Hospital, to examine Ambal and to submit within
one month a report on the latter's mental condition (p. 65, Record).

Doctor Balbas in his report dated November 3, 1977 found that Ambal was a "passive-aggressive, emotionally unstable, explosive or
inadequate personality" (Exh. 1).

Doctor Balbas testified that during the period form February 1 (twelve days after the killing) to November 3, 1977, when he placed Ambal
under observation, the latter did not show any mental defect and was normal (44-46 tsn November 3,1977).

Asked directly whether Ambal suffered from a mental disease or defect, Doctor Balbas replied: "Before the commission of the crime, he
was normal. After the commission of the crime, normal, but during the commission of the crime, that is what we call "Psychosis" due to short
frustration tolerance" (45 tsn).

Doctor Cresogono Llacuna,a 1937 medical graduate who undertook a two-month observation of mental cases and who in the course of
his long practice had treated around one hundred cases of mental disorders, attended to Ambal in 1975. He found that Ambal suffered
from a psychoneurosis, a disturbance of the functional nervous system which is not insanity (65 November 15, 1977). The doctor concluded
that Ambal was not insane. Ambal was normal but nervous (68 He had no mental disorder.

Ambal, 49, who reached Grade four, testified on November 16, 1977 or about ten months after the incident. He said that at the time of the
killing he did not know what he was doing because he was allegedly not in full possession of his normal mental faculties. He pretended not
to know that he was charged with the capital offense of having killed his wife.

But he admitted that he knew that his wife was dead because he was informed of her death. During his confinement in jail he mopped the
floor and cooked food for his fellow prisoners. Sometimes, he worked in the town plaza or was sent unescorted to buy food in the market.

He said that his wife quarrelled with him. She was irritable. he admitted that he rode on a tricycle when he surrendered on the day of the
killing. He remembered that a week before the incident he got wet while plowing. He feel asleep without changing his clothes. At midnight,
when he woke up, he had chills. That was the commencement, his last illness.

The trial court concluded from Ambal's behavior immediately after the incident that he was not insane and that he acted like a normal
human being. We agree with the court's conclusion.

Courts should be careful to distinguish insanity in law from passion or eccentricity, mental weakness or mere depression
resulting from physical ailment. The State should guard against sane murderers escaping punishment through a general
plea of insanity. (People vs. Bonoan, 64 Phil. 87, 94.)
Article 12 of the Revised Penal Code exempts from criminal liability an imbecile or an insane person unless the latter has acted during a
lucid interval. *

According to the dictionary imbecile is a person marked by mental deficiency while an insane person is one who has an unsound mind or
suffers from a mental disorder. "imbecil vale tanto como escaso de razon y es loco el que ha perdido el juico." An insane person may have
lucid intervals but "el embecil no puede tener, no tiene estos intervalos de Corazon, pues en el no hay una alteracion, sino
una carencia del juico mismo" (1 Viada, Codigo Penal, 4th Ed., p. 92.)

Insanity has been defined as "a manifestation in language or conduct of disease or defect of the brain, or a more or less permanently
diseased or disordered condition of the mentality, functional or organic, and characterized by perversion, inhibition, or disordered function
of the sensory or of the intellective faculties, or by impaired or disordered volition" (Sec. 1039, Revised Administrative Code).

The law presumes that every person is of sound mind, in the absence of proof to the contrary (Art. 800, Civil Code re
Testamentary Succession; U.S. vs. Martinez, 34 Phil. 305, 308). The law always presumes all acts to be voluntary. It is
improper to presume that acts were executed unconsciously (People vs. Cruz, 109 Phil. 288, 292; People vs. Tagasa, 68
Phil. 147, 153; U.S. vs. Guevara, 27 Phil. 547; People vs. Fausto, 113 Phil. 841).

When there is no proof that the defendant was not of sound mind at the time he performed the criminal act charged to
him, or that he performed it at the time of madness or of mental derangement, or that he was generally considered to
be insane — his habitual condition being, on the contrary, healthy — the legal presumption is that he acted in his
ordinary state of mind and the burden is upon the defendant to overcome this presumption (U.S. vs. Zamora, 32 Phil.
218.)

Without positive proof that the defendant had lost his reason or was demented, a few moments prior to or during the
perpetration of the crime, it will be presumed that he was in a normal condition (U.S. vs. Hontiveros Carmona, 18 Phil. 62).

A defendant in a criminal case, who interposes the defense of mental incapacity, has the burden of establishing that fact, meaning that
he was insane at the very moment when the crime was committed (People vs. Bascos, 44 Phil. 204.)

What should be the criterion for insanity or imbecility? We have adopted the rule, based on Spanish jurisprudence, that in order that a
person could be regarded as an imbecile within the meaning of article 12 of the Revised Penal Code, he must be deprived completely of
reason or discernment and freedom of the will at the time of committing the crime (People vs. Formigonez, 87 Phil. 658, 660)

In order that insanity may be taken as an exempting circumstance, there must be complete deprivation of intelligence in the commission
of the act or that the accused acted without the least discernment. Mere abnormality of his mental faculties does not exclude imputability.
(People vs. Cruz, 109 Phil. 288,292; People vs. Renegado, L-27031, May 31,1974,57 SCRA 275, 286.)

A man who could feel the pangs of jealousy and who tried to vindicate his honor by taking violent measures to the extent of killing his wife
(whom he suspected of infidelity) can hardly be regarded as an imbecile (Formigones case).

Where the accused had a passionate nature, with a tendency to having violent fits when angry, his acts of breaking glasses and smashing
dishes are indications of an explosive temper and not insanity, especially considering that he did not turn violent when a policeman
intercepted him after he had killed his wife. (Cruz case.)

There is a vast difference between an insane person and one who has worked himself up into such a frenzy of anger that
he fails to use reason or good judgment in what he does. Persons who get into a quarrel or fight seldom, if ever, act
naturally during the fight. An extremely angry man, often, if not always, acts like a madman. The fact that a person acts
crazy is not conclusive that he is insane. The popular meaning of the word I "crazy" is not synonymous with the legal terms
"insane", "non compos mentis," "unsound mind","idiot", or "lunatic" (U.S. vs. Vaquilar, 27 Phil. 88, 91.)

The heat of passion and feeling produced by motives of anger, hatred, or revenge is not insanity. (People vs. Foy, 138
N.Y. 664, cited in Vaquilar case, on p. 92.)

One who, in possession of a sound and, commits a criminal act under the impulse of passion or revenge, which may
temporarily dethrone reason and for the moment control the will, cannot nevertheless be shielded from the
consequences of the act by the plea of insanity. Insanity will only excuse the commission of a criminal act, when it is
made affirmatively to appear that the person committing it was insane, and that the offense was the direct
consequence of his insanity (State vs. Strickly, 41 Iowa 232, cited in Vaquilar case, on p. 94.)

The defense of insanity was rejected in a case where the accused killed by strangulation a sixteen-year-old girl, who got leaves from his
banana plants, and sliced the flesh of her legs, thighs and shoulders, cooked the flesh and ate it like a cannibal. (People vs. Balondo, L-
27401, October 31, 1969, 30 SCRA 155).

Being weak-minded does not necessarily mean that the accused is insane (People vs. Martin, 120 Phil. 14, 20-21).
Justice Cardozo in his article, "What Medicine Can Do For The Law", traces briefly the origin of the rule regarding insanity as a defense. He
says:

In the early stages of our law, way back in medieval times, insanity was never a defense for crime. The insane killer, like
the man who killed in self-defense, might seek a pardon from the king, and would often get one. He had no defense at
law. Gradually insanity was allowed, but only within narrow limits This was what was become known as the wild-beast
stage of the defense. Then the limits of the defense were expanded, but still slowly and narrowly. The killer was excused if
the disease of the mind was such that he was incapable of appreciating the difference between right and wrong. At
first this meant, not the right and wrong of particular case, but right and wrong generally or in the abstract, the
difference, as it was sometimes said, between good and evil. Later, the rule was modified in favor of the prisoner so that
capacity to distinguish between right and wrong generally would not charge with responsibility if there was no capacity
to understand the difference in relation to the particular act, the subject of the crime.

The rule governing the subject was crystallized in England in 1843 by the answer made by the House of Lords to questions
submitted by judges in the famous case of McNaghten, who was tried for the murder of one Drummond, the secretary of
Sir Robert Peel.

In the M'Naghten case, 8 Eng. Rep. 718, Clark and Finelly 200, the following rule was laid down: "To establish a defense on the ground of
insanity, it must be clearly proved that, at the time of committing the act, the party accused was laboring under such a defect of reason
from disease of the mind, as not, to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was
doing what was wrong."

In the M'Naghten case, it appears that Daniel M'Naghten shot Edward Drummond on January 20, 1843. Drummond died as a
consequence of the gunshot wound on April 25, 1843. Drummond was the private secretary of Sir Robert Peel, prime minister M'Naghten
shot Drummond, thinking he was Sir Robert. M'Naghten labored under the the insane delusion that he was being hounded by his enemies
and that the prime minister was one of them. Medical evidence tended to prove that M'Naghten was affected by morbid delusions which
carried him beyond the power of his own control, leaving him unable to distinguish right and wrong, and that he was incapable of
controlling his conduct in connection with the delusion. The jury found him not guilty by reason of insanity.

As stated in another case, the "test of the responsibility for criminal acts, when insanity is asserted, is the capacity of the accused to
distinguish between right and wrong at the time and with respect to the act which is the subject of the inquiry. (Coleman's case,1 N.Y. Cr.
Rep. 1.)

Another test is the so-called "irresistible impulse" test which means that "assuming defendant's knowledge of the nature and quality of his
act and his knowledge that the act is wrong, if, by reason of disease of the mind, defendant has been deprived of or lost the power of his
will which would enable him to prevent himself from doing the act, then he cannot be found guilty." The commission of the crime is excused
even if the accused knew what he was doing was wrong provided that as a result of mental disease he lacked the power to resist the
impulse to commit the act. (State v. White, 270 Pac. 2d. 727, 730; Leslie Kast, 31 North Dakota Law Review, pp. 170, 173.)

The latest rule on the point is that "the so-called right wrong test, supplemented by the irresistible impulse test, does not alone supply
adequate criteria for determining criminal responsibility of a person alleged mental incapacity." "An accused is not criminally responsible if
his unlawful act is the product of a mental disease or a mental defect. A mental disease relieving an accused of criminal responsibility for
his unlawful act is a condition considered capable of improvement or deterioration; a mental defect having such effect on criminal
responsibility is a condition not considered capable of improvement or deterioration, and either congenital, or the result of injury or of a
physical or mental disease." (Syllabi, Durham v. U.S., 214 F. 2nd. 862, 874, 45 A.L.R. 2d. 1430 [1954].)

As stated in 22 C.J.S. 203, "the general test of criminal responsibility may be stated to be the capacity to understand the nature and
consequences of the act charged and the ability to distinguish between right and wrong as to such act, and in a majority of jurisdictions
this is the exclusive test."

And, as noted in 21 Am Jur 2d. 118, the rule in the M'Naghten case exists along with the "irresistible impulse" test or some other formula
permitting a defendant to be exculpated on the ground that, although he knew the act was wrong, he was unable to refrain from
committing it.

Since the broadest test suggested, which is the Durham or "Product" rule, also permits inability to distinguish between
right and wrong to be considered, even though it refuses to limit the inquiry to that topic, it would appear that insanity
which meets this test is a defense in all Anglo-American jurisdictions and that the only controversy is over whether there
are some cases in which the right-and-wrong test is not met, but in which a defense on grounds of insanity should
nevertheless be recognized. (21 Am Jur 2d 118.)

In the instant case, the alleged insanity of Ambal was not substantiated by any sufficient evidence. The presumption of sanity was not
overthrown. He was not completely bereft of reason or discernment and freedom of will when he mortally wounded his wife. He was not
suffering from any mental disease or defect.

The fact that immediately after the incident he thought of surrendering to the law-enforcing authorities is incontestable proof that he knew
that what he had done was wrong and that he was going to be punished for it.
Ambal is guilty of parricide with the mitigating circumstance of voluntary surrender to the authorities. Article 246 of the Revised Penal Code
punishes parricide with reclusion perpetua to death. The lesser penalty should be imposed because of the presence of one mitigating
circumstance and the absence of aggravating circumstances (Art. 63[3], Revised Penal Code).

WHEREFORE, the trial court's decision is affirmed. Costs against the appellant.

SO ORDERED.

[G.R. No. 112429-30. July 23, 1997]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MICHAEL NUNEZ y SEVILLA, accused.

RODOLFO CAYETANO y PANGILINAN, accused-appellant.

DECISION

ROMERO, J.:

Stealing with intent to gain, from being a simple, uncomplicated act in times past, albeit unlawful, has evolved into more elaborate
schemes guaranteed to filch money from a person with the least risk of being caught on the part of the felon.

Those with grandiose designs of victimizing the wealthy have, with alarming frequency, resorted to kidnapping, snatching not only
their intended victims, but the families of the latter, as well. Within the past few years, so steep has been the incidence in the crime of
kidnapping for ransom that on December 31, 1993, Republic Act No. 7659 went into effect, categorizing the same as a heinous crime
punishable by death.[1]

In the instant case which occurred before said law was passed, two high school lads were duped by the accused into going with
him. One was to be used for purposes of extricating ransom from his businessman father. But the other, the son of impecunious parents, was
subsequently bound hands and feet, gagged and drowned in a river like a rat, with absolutely no chance of survival.

The facts of this shocking case are as follows:

Accused-appellant Rodolfo Cayetano, together with his co-accused Michael Nunez (Nunez) and Ismael Santos alias "Ka Tony," were
charged with the crimes of Kidnapping for Ransom (Criminal Case No. 12778-MN)[2] and Kidnapping with Murder (Criminal Case No. 12779-
MN).[3] Only accused-appellant and Nunez were convicted and accordingly sentenced to reclusion perpetua and to pay
damages. Accused Santos remains at large.

The prosecution was able to establish that at around 1:15 in the afternoon of January 21, 1993 inside the compound of Immaculate
Concepcion Parochial School, accused Nunez persuaded the victim, fourteen-year old high school student Joseph Rivera, to go with him
on the pretext that he would turn over the proceeds of the sale of a gun to the latter's father. He was likewise able to persuade Joseph
Rivera to bring along the latter's classmate, another fourteen year-old student Neil Patrick Quillosa on the pretext that Neil would be
Joseph's companion in going home later.

The two boys were brought to a nipa hut in the middle of a fishpond in Dampalit, Malabon to await a certain "Ka Tony." As the two
boys attempted to go home, they were told to go back as "Ka Tony" was coming. When they were asked in jest about their preference if
they were to be killed either with a knife or with a gun, Neil answered that he would prefer a gun pointed at his head.

Thereafter, accused Nunez told them that "Ka Tony" would not enter the hut unless they were blindfolded and tied. They protested but
were assured by accused Nunez that they would not be harmed. Both victims' hands and feet were tied with wire and rope.

Accused-appellant came and checked if the two victims were tied securely, after which, accused Nunez played a tape demanding
three million pesos in five hundred and one thousand peso bills from the parents of Rivera in exchange for his release. Rivera was likewise
made to record his own voice pleading to his parents to pay the ransom demanded. Thereafter, accused Nunez, who was then in
possession of a gun, fired the same towards the window, hitting the casette recorder.

The victims were then brought to the river by accused and accused-appellant. Accused Nunez dragged Neil by the neck towards
the middle of the river and left him there to drown while accused-appellant stood guard over Rivera. Quillosa's cries for help and Rivera's
pleas for their captors to save Quillosa went unheeded.

In the nipa hut, Rivera was made to record his own voice saying, "Mommy, Daddy, para makilala ninyo na sanay silang pumatay,
pinatay na nila si Neil." Thereafter, he managed to untie his feet and asked accused-appellant to remove the wire around his hands on the
assurance that he would not escape. The following morning, accused Nunez went to deliver the tape to Rivera's house.

While accused-appellant was busy cutting grass near the river, Rivera escaped and proceeded to the house of accused Nunez
where he called up his grandmother. Thereupon, he was fetched by his grandmother and with his father, they proceeded to the Malabon
Police Station and reported the kidnapping. The policemen who responded recovered the casette recorder from the nipa hut but failed to
find both accused and accused-appellant.
 Neil Patrick Quillosa's body was recovered on January 23, 1993 at Chungkang River, Malabon with both hands and feet still bound
with wires and his mouth gagged. Dr. Juanito Sacdalan testified that the cause of death was asphyxia due to strangulation and that the
wire tied around the hands of the victim was the same wire tied around the neck.

Accused-appellant, however, denied the accusation against him claiming that on the day he arrived at the nipa hut, accused
Nunez poked a gun at him and threatened to kill him if he squeals. He also claimed that accused Nunez recorded something on a casette
and he saw two children with him whose hands and feet were tied with wires. Thereafter, accused Nunez instructed one of the children,
whom he came to know during the trial of this case to be Joseph Rivera, to record something which he did not hear as accused Nunez
ordered him to keep his distance. He averred that when Nunez brought the children to the river, he was just watching and following them;
that from his position atop the paddy, he saw accused Nunez in the middle of the river release one of the children, whom he came to
know during the trial to be Neil Patrick Quillosa, as a result of which the latter drowned.

The following morning, accused Nunez told him to guard Rivera after which the former left. However, he claimed that he left Rivera
inside the nipa hut to cut grass around the fishpond. When accused Nunez returned and learned from him that Rivera had left, the former
likewise disappeared. Moments later, accused Nunez' father arrived and told him that he would get the casette. He was likewise told to
leave as policemen will be coming. As a result, he left and went to his grandmother's place, after which he was surrendered by his uncle to
Vice President Joseph Estrada. He likewise claims that he does not know how to read and that he can write only his name and count up to
fifty only. He claims to know Michael Nunez as he usually sees him when he buys "kakanin" from the latter's family.

The lower court in a joint decision[4] convicted both accused and accused-appellant with Kidnapping for Ransom and accordingly
sentenced both to reclusion perpetua. Both were also found to have committed the complex crime of Kidnapping with Murder and
sentenced each of them to suffer the penalty of reclusion perpetua. They were also ordered to indemnify the heirs of the victims in the
amount of P50,000.00, to pay actual damages in the amount of P41,700.00 and the sum of P50,000.00 as moral damages, as well as the
costs of the suit.

Hence, this appeal. Accused-appellant claims that the lower court erred:

1. In not finding that accused-appelants low level of intelligence/state of embecility exempts him from any criminal liability.

2. In not finding that the records of the case are not sufficient to hold a finding of conspiracy against the accused-appellant.

3. In not acquitting the accused by reason of an exempting circumstance of uncontrollable fear of an equal or greater injury.

In the first submission of error, accused-appellant claims that he possesses a very low level of intelligence as revealed in his direct
testimony and cross-examination, indicating a mental age of between six (6) to ten (10) years of age. To prove his imbecility, he cited his
act of cutting grass when he should be guarding his victim. As such, he should be exempted from criminal liability under the Revised Penal
Code. Even assuming that he is liable, the lower court should have proceeded against him pursuant to the Child and Youth Welfare Code.

In his second submission, accused-appellant declares that he could not have conspired with accused Nunez for the following
reasons: (1) accused-appellant would rather cut grass than guard his victim, as indicative of his low mental age; (2) the act of kidnapping
itself was already executed and perfected by accused Nunez when the accused-appellant arrived in the nipa hut several hours after the
kidnapping; (3) the testimonies of private complainant Joseph Rivera and the accused-appellant were consistent with the fact that
accused-appellant was nowhere near accused Nunez when he was recording the alleged demand for payment.

In his third submission, accused-appellant testified that accused Nunez poked a gun at him and threatened him with death; so he
had no alternative but to follow the orders of accused Nunez, specially considering his mental capacity.

The Court is not persuaded by such remonstrations. The defense counsel's attribution of imbecility is not supported by
evidence. Imbecility, one of the exempting circumstances under Article 12 of the Revised Penal Code, is defined as feeblemindedness or a
mental condition approaching that of one who is insane. It is analogous to childishness and dotage. An imbecile, within the meaning of
Article 12, is one who must be deprived completely of reason or discernment and freedom of will at the time of committing the crime.[5] He
is one who, while advanced in age, has a mental development comparable to that of children between two and seven years of age.[6]

Accused-appellant's act of cutting grass rather than guarding his victim could hardly be indicative of imbecility. Rather, it may be
considered as negligence but definitely not childishness or even that of one completely deprived of reason or discernment and freedom of
the will. In fact, accused-appellant admitted on cross-examination that he can tell what is right and what is wrong.[7] Assuming arguendo
that accused-appellant is an imbecile or a feebleminded person, in the case of People v. Formigones,[8] it was held that feeblemindedness
is not exempting, because the offender could distinguish right from wrong. An imbecile or an insane cannot. In any case, Article 800 of the
Civil Code provides that "the law presumes that every person is of sound mind, in the absence of proof to the contrary." The allegation of
insanity or imbecility must be clearly proved. Moreover, the law presumes all acts to be voluntary. It is improper to presume that acts were
executed unconsciously."[9]

Neither will this Court subscribe to accused-appellant's third submission that he was prompted to act the way he did due to
uncontrollable fear of an equal or greater injury. Accused-appellant's claim that accused Nunez poked a gun at him and threatened him
with death is belied by testimonial evidence. Granting that accused-appellant was forced to do what he did on account of fear, duress or
intimidation such that he could not possibly have any opportunity to defend himself in equal combat, testimonial evidence show that he
had at least four opportunities to escape. The first was when accused Nunez allegedly brought the two victims to the river while he
remained on the rice paddy.[10] The second was when accused Nunez and the victim Joseph Rivera were sleeping in the nipa hut.[11] The
third was when accused Nunez asked him to look for the necklace of Neil Patrick Quillosa on the river bank while the former was in the nipa
hut together with the victim Joseph Rivera.[12] The fourth was when accused Nunez left him and the victim the following morning to deliver
the taped or recorded ransom demand to the victim's family.[13] Accused-appellant could have easily taken advantage of any of these
opportunities considering that only accused Nunez threatened him. By not availing of these chances to escape, his allegation of fear or
duress becomes incredible under the circumstances.
 In People v. Villanueva,[14] this Court stated that:

"Duress, force, fear or intimidation to be available as a defense, must be present, imminent and impending, and of such a nature
as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done.A threat of future injury is not
enough. (16 C.J., 91).

To be available as a defense, the fear must be well-founded, an immediate and actual danger of death or great bodily harm
must be present and the compulsion must be of such a character as to leave no opportunity to accused for escape or self-
defense in equal combat. It would be a most dangerous rule if a defendant could shield himself from prosecution for crime by
merely setting up a fear from or because of a threat of a third person. (Wharton's Criminal Law, Vol. 1, Sec. 384).

Fear as an excuse for crime has never been received by the law. No man, from fear or circumstances to himself has the right to
make himself a party to committing mischief upon mankind. (Lord Denman in Reg. vs. Tyler, 8 Car. and P. [Eng.] 616, vs. Duddely,
L.R. 14, Q.B. Div. [Eng.] 273)."

Accused-appellant's knowledge of what is right or wrong, as well as his failure to escape bolsters the prosecution's evidence that he
conspired with accused Nunez to commit the crimes being charged against them, contrary to the former's second submission. The records
show the presence of conspiracy. First, when accused-appellant arrived at the hut where the victims were being held, the first thing he did
was to check if the victims were securely tied.[15] Second, accused-appellant carried the victim Neil Patrick Quillosa to the river.[16] Third,
accused-appellant kicked the victim Joseph Rivera when the latter was ordered to go to the river.[17] It may be deduced from those acts
by accused-appellant that he conspired with accused Nunez to commit the crimes. While it is true that a finding of criminal conspiracy
must be supported by evidence constituting proof beyond reasonable doubt, it is equally true that such evidence need not be 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.[18]

To exempt himself from criminal liability, the conspirator must have performed an overt act to dissociate or detach himself from the
unlawful plan to commit the felony.[19] Nowhere in the records does it show that accused-appellant ever did anything to dissuade accused
Nunez from killing Neil Patrick Quillosa or to escape in order to report the crime despite at least four opportunities to do so.

This Court fully agrees with the lower court that Kidnapping for Ransom was committed against Joseph Rivera, as the essential
element that the victim must have been restrained or deprived of his liberty was present when both victims were tied and when the gun
was brandished and fired to intimidate them.[20] In addition, accused Nunez and accused-appellant recorded a ransom demand with the
intention of sending it to Rivera's parents.[21] The records indicate that accused Nunez and accused-appellant intended to detain only
Rivera and hold him for ransom as he was the son of a gasoline owner having a net income of P24,000.00 a month and owning several
properties.[22]

The same, however, cannot be said of Neil Patrick Quillosa. The records show that the intent of accused Nunez and that of accused-
appellant was to kill Quillosa and not to detain him for ransom. Quillosa was a stranger to them and they merely persuaded Rivera to take
him along so he could have a companion in going home.[23] In any case, they could not have possibly intended to detain Quillosa and
hold him for ransom as he was only a son of a jeepney driver.[24]

Thus, the crime committed by accused Nunez and accused-appellant with respect to the victim Quillosa should be Homicide and
not Kidnapping with Murder since they never intended to hold Quillosa for ransom. Nunez' query as to Quillosa's preference on the manner
of his death shows the formers' intention to kill the latter. As treachery was not alleged in the information, then it could not have qualified
the crime to murder.

However, treachery should be appreciated as a generic aggravating circumstance. Article 14, Paragraph 16 of the Revised Penal
Code states that there is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms
in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the
offended party might make. In the instant case, treachery was evident when the accused Nunez led the victims to believe that it was
necessary for them to be blindfolded and tied first with wires and a rope before a certain Ka Tony would agree to meet them. Having thus
placed the victims, particularly Quillosa, in a helpless condition, accused Nunez and accused-appellant were able to carry out with ease
their common design to kill Quillosa without any risk to themselves arising from any struggle the boy might make.

Craft should also be appreciated as aggravating the crime of homicide since it was shown that the victims, particularly the
unsuspecting Quillosa, were lured by the accused into coming with them on the pretext that the former would only accompany Rivera to
accept the proceeds of the sale of a gun.

With respect to accused-appellant, the mitigating circumstance of voluntary surrender should be appreciated in his favor.

WHEREFORE, in Criminal Case No. 12778-MN, the decision of the trial court is AFFIRMED. In Criminal Case No. 12779-MN, the decision of
the trial court is MODIFIED in that accused-appellant Rodolfo Cayetano y Pangilinan is CONVICTED of the crime of homicide and IMPOSING
upon him the prison term ranging from 10 years and 1 day to 12 years, prision mayor maximum, as minimum up to 18 years, 6 months and 1
day of reclusion temporal maximum, as maximum.

Costs against accused-appellant.

SO ORDERED.

JOEMAR ORTEGA, G.R. No. 151085

Petitioner,
Present:

YNARES-SANTIAGO, J.,
Chairperson,
 AUSTRIA-MARTINEZ,
- versus - CORONA,*
CHICO-NAZARIO, and
NACHURA, JJ.

Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent.
August 20, 2008

x--------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

Before this Court is a Petition[1] for Review on Certiorari under Rule 45 of the Rules of Civil Procedure seeking the reversal of the Court of
Appeals (CA) Decision[2] dated October 26, 2000 which affirmed in toto the Decision[3] of the Regional Trial Court (RTC) of Bacolod City,
Branch 50, dated May 13, 1999, convicting petitioner Joemar Ortega[4] (petitioner) of the crime of Rape.
The Facts

Petitioner, then about 14 years old,[5] was charged with the crime of Rape in two separate informations both dated April 20, 1998, for
allegedly raping AAA,[6] then about eight (8) years of age. The accusatory portions thereof respectively state:

Criminal Case No. 98-19083

That sometime in August, 1996, in the Municipality of XXX, Province of YYY, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, by means of force, violence and intimidation, did then and there, (sic)
willfully, unlawfully and feloniously (sic) had carnal knowledge of and/or sexual intercourse with the said AAA, a minor,
then about 6 years old, against her will.

CONTRARY TO LAW.[7]

Criminal Case No. 98-19084

That on or about the 1st day of December, 1996, in the Municipality of XXX, Province of YYY, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, by means of force, violence and intimidation, did then
and there, (sic) willfully, unlawfully and feloniously (sic) had carnal knowledge of and/or sexual intercourse with the said
AAA, a minor, then about 6 years old, against her will.

CONTRARY TO LAW.[8]

Upon arraignment on September 10, 1998, petitioner pleaded not guilty to the offense charged.[9] Thus, trial on the merits ensued. In the
course of the trial, two varying versions arose.

Version of the Prosecution

On February 27, 1990, AAA was born to spouses FFF and MMM.[10] Among her siblings CCC, BBB, DDD, EEE and GGG, AAA is the only girl in
the family. Before these disturbing events, AAA's family members were close friends of petitioner's family, aside from the fact that they were
good neighbors. However, BBB caught petitioner raping his younger sister AAA inside their own home.BBB then informed their mother MMM
who in turn asked AAA.[11] There, AAA confessed that petitioner raped her three (3) times on three (3) different occasions.

The first occasion happened sometime in August 1996. MMM left her daughter AAA, then 6 years old and son BBB, then 10 years old, in the
care of Luzviminda Ortega[12] (Luzviminda), mother of petitioner, for two (2) nights because MMM had to stay in a hospital to attend to her
other son who was sick.[13] During the first night at petitioner's residence, petitioner entered the room where AAA slept together with
Luzviminda and her daughter. Petitioner woke AAA up and led her to the sala. There petitioner raped AAA. The second occasion occurred
the following day, again at the petitioner's residence. Observing that nobody was around, petitioner brought AAA to their comfort room
and raped her there. AAA testified that petitioner inserted his penis into her vagina and she felt pain. In all of these instances, petitioner
warned AAA not to tell her parents, otherwise, he would spank her.[14] AAA did not tell her parents about her ordeal.

The third and last occasion happened in the evening of December 1, 1996. Petitioner went to the house of AAA and joined her and her
siblings in watching a battery-powered television. At that time, Luzviminda was
conversing with MMM. While AAA's siblings were busy watching,
petitioner called AAA to come to the room of CCC and BBB. AAA obeyed. While inside the said room which was lighted by a kerosene
lamp, petitioner pulled AAA behind the door, removed his pants and brief, removed AAA's shorts and panty, and in a standing position
inserted his penis into the vagina of AAA.[15] AAA described petitioner's penis as about five (5) inches long and the size of two (2) ballpens.
She, likewise, narrated that she saw pubic hair on the base of his penis.[16]

This last incident was corroborated by BBB in his testimony. When BBB was about to drink water in their kitchen, as he was passing by his
room, BBB was shocked to see petitioner and AAA both naked from their waist down in the act of sexual intercourse. BBB saw petitioner
holding AAA and making a pumping motion. Immediately, BBB told petitioner to stop; the latter, in turn, hurriedly left. Thereafter, BBB
reported the incident to his mother, MMM.[17]

MMM testified that when she asked AAA about what BBB saw, AAA told her that petitioner inserted his fingers and his penis into her vagina.
MMM learned that this was not the only incident that petitioner molested AAA as there were two previous occasions. MMM also learned
that AAA did not report her ordeal to them out of fear that petitioner would spank her. MMM testified that when BBB reported the matter to
her, petitioner and Luzviminda already left her house. After waiting for AAA's brothers to go to sleep, MMM, with a heavy heart, examined
AAA's vagina and she noticed that the same was reddish and a whitish fluid was coming out from it. Spouses FFF and MMM were not able
to sleep that night. The following morning, at about four o'clock, MMM called Luzviminda and petitioner to come to their house. MMM
confronted Luzviminda about what petitioner did to her daughter, and consequently, she demanded that AAA should be brought to a
doctor for examination.[18]
MMM, together with Luzviminda, brought AAA to Dr. Lucifree Katalbas[19] (Dr. Katalbas), the Rural Health Officer of the locality who
examined AAA and found no indication that she was molested.[20] Refusing to accept such findings, on December 12, 1996, MMM went to
Dr. Joy Ann Jocson (Dr. Jocson), Medical Officer IV of the Bacolod City Health Office. Dr. Jocson made an unofficial written
report[21] showing that there were abrasions on both right and left of the labia minora and a small laceration at the posterior fourchette. She
also found that the minor injuries she saw on AAA's genitals were relatively fresh; and that such abrasions were superficial and could
disappear after a period of 3 to 4 days. Dr. Jocson, however, indicated in her certification that her findings required the confirmation of the
Municipal Health Officer of the locality.

Subsequently, an amicable settlement[22] was reached between the two families through the DAWN Foundation, an organization that helps
abused women and children. Part of the settlement required petitioner to depart from their house to avoid contact with AAA. [23] As such,
petitioner stayed with a certain priest in the locality. However, a few months later, petitioner went home for brief visits and in order to bring
his dirty clothes for laundry. At the sight of petitioner, AAA's father FFF was infuriated and confrontations occurred. At this instance, AAA's
parents went to the National Bureau of Investigation (NBI) which assisted them in filing the three (3) counts of rape. However, the
prosecutor's office only filed the two (2) instant cases.

Version of the Defense

Petitioner was born on August 8, 1983 to spouses Loreto (Loreto) and Luzviminda Ortega.[24] He is the second child of three siblings ― an
elder
brother and a younger sister. Petitioner denied the accusations made against him. He testified that: his parents and AAA's parents were
good friends; when MMM left AAA and her brothers to the care of his mother, petitioner slept in a separate room together with BBB and
CCC while AAA slept together with Luzviminda and his younger sister; he never touched or raped AAA or showed his private parts to her;
petitioner did not threaten AAA in any instance; he did not rape AAA in the former's comfort room, but he merely accompanied and
helped AAA clean up as she defecated and feared the toilet bowl; in the process of washing, he may have accidentally touched AAA's
anus; on December 1, 1996, petitioner together with his parents, went to AAA's house;[25] they were dancing and playing together with all
the other children at the time; while they were dancing, petitioner hugged and lifted AAA up in a playful act, at the instance of which BBB
ran and reported the matter to MMM, who at the time was with Luzviminda, saying that petitioner and AAA were having sexual
intercourse;[26] petitioner explained to MMM that they were only playing, and that he could not have done to AAA what he was accused
of doing, as they were together with her brothers, and he treated AAA like a younger sister; [27] BBB was lying; AAA's parents and his parents
did not get angry at him nor did they quarrel with each other; petitioner and his parents peacefully left AAA's house at about nine o'clock
in the evening; however, at about four o'clock in the morning, petitioner and his parents were summoned by MMM to go to the latter's
house; upon arriving there they saw BBB being maltreated by his father as AAA pointed to BBB as the one who molested her; and MMM
and Luzviminda agreed to bring AAA to a doctor for examination.[28]

Luzviminda corroborated the testimony of her son. She testified that: her son was a minor at the time of the incident; CCC and BBB were
the children of MMM in her first marriage, while AAA andthe rest of her

siblings were of the second marriage; CCC and BBB are half-brothers of AAA; when MMM entrusted AAA and her brothers to her sometime
in August of 1996, she slept with AAA and her youngest daughter in a separate room from petitioner; on December 1, 1996, she was at
AAA's house watching television and conversing with MMM, while FFF and Loreto were having a drinking spree in the kitchen; from where
they were seated, she could clearly see all the children, including petitioner and AAA, playing and dancing in the dining area; she did not
hear any unusual cry or noise at the time; while they were conversing, BBB came to MMM saying that petitioner and AAA were having
sexual intercourse; upon hearing such statement, Luzviminda and MMM immediately stood up and looked for them, but both mothers did
not find anything unusual as all the children were playing and dancing in the dining area; Luzviminda and MMM just laughed at BBB's
statement; the parents of AAA, at that time, did not examine her in order to verify BBB's statement nor did they get angry at petitioner or at
them; and they peacefully left AAA's house. However, the following day, MMM woke Luzviminda up, saying that FFF was spanking BBB with
a belt as AAA was pointing to BBB nor to petitioner as the one who molested her. At this instance, Luzviminda intervened, telling FFF not to
spank BBB but instead, to bring AAA to a doctor for examination. Luzviminda accompanied MMM to Dr. Katalbas who found no indication
that AAA was molested. She also accompanied her to Dr. Jocson. After getting the results of the examination conducted by Dr. Jocson,
they went to the police and at this instance only did Luzviminda learn that MMM accused petitioner of raping AAA. Petitioner vehemently
denied to Luzviminda that he raped AAA. Thereafter, MMM and Luzviminda went to their employer who recommended that they should
seek advice from the Women's Center. At the said Center, both agreed on an amicable settlement wherein petitioner would stay away
from AAA. Thus, petitioner stayed with a certain priest in the locality for almost two (2) years. But almost every Saturday, petitioner would
come home to visit his parents and to bring his dirty clothes for laundry. Every time petitioner came home, FFF bad-mouthed petitioner,
calling him a rapist. Confrontations occurred until an altercation erupted wherein FFF allegedly slapped Luzviminda. Subsequently, AAA's
parents filed the instant cases.[29]

The RTC's Ruling

On May 13, 1999, the RTC held that petitioner's defenses of denial cannot prevail over the positive identification of petitioner as the
perpetrator of the crime by AAA and BBB, who testified with honesty and credibility. Moreover, the RTC opined that it could not perceive
any motive for AAA's family to impute a serious crime of Rape to petitioner, considering the close relations of both families. Thus,
the RTC disposed of this case in this wise:

FOR ALL THE FOREGOING, the Court finds the accused Joemar Ortega Y Felisario GUILTY beyond reasonable doubt as
Principal by Direct Participation of the crime of RAPE as charged in Criminal Cases Nos. 98-19083 and 98-19084 and
there being no aggravating or mitigating circumstance, he is sentenced to suffer the penalty of Two (2) Reclusion
Temporal in its medium period. Applying the Indeterminate Sentence Law, the accused shall be imprisoned for each
case for a period of Six (6) years and One (1) day of Prision Mayor, as minimum, to Fifteen (15) years of Reclusion
Temporal, as maximum. The accused is condemned to pay the offended party AAA, the sum of P100,000.00 as
indemnification for the two (2) rapes (sic).

Aggrieved, petitioner appealed the RTC Decision to the CA.[30]

Taking into consideration the age of petitioner and upon posting of the corresponding bail bond for his provisional liberty in the amount
of P40,000.00, the RTC ordered the petitioner's release pending appeal.[31]

The CA's Ruling

On October 26, 2000, the CA affirmed in toto the ruling of the RTC, holding that the petitioner's defense of denial could not prevail over the
positive identification of the petitioner by the victim AAA and her brother BBB, which were categorical, consistent and without any showing
of ill motive. The CA also held that the respective medical examinations conducted by the two doctors were irrelevant, as it is established
that the slightest penetration of the lips of the female organ consummates rape; thus, hymenal laceration is not an element of rape.
Moreover, the CA opined that petitioner acted with discernment as shown by his covert acts. Finally, the CA accorded great weight and
respect to the factual findings of the RTC, particularly in the evaluation of the testimonies of witnesses.

Petitioner filed his Motion for Reconsideration[32] of the assailed Decision which the CA denied in its Resolution[33] dated November 7, 2001.

Hence, this Petition based on the following grounds:

I.
THE HONORABLE COURT OF APPEALS HAS OVERLOOKED CERTAIN FACTS OF SUBSTANCE AND VALUE WHICH IF
CONSIDERED MIGHT AFFECT THE RESULT OF THE CASE.

II.
THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ERROR WHEN IT FAILED TO APPRECIATE THE MEDICAL FINDINGS
OF DR. LUCIFREE KATALBAS.

III.

THE FINDINGS OF THE LOWER COURT, AFFIRMED BY THE APPELLATE COURT, THAT PETITIONER-APPELLANT IN
FACT COMMITTED AND IS CAPABLE OF COMMITTING THE ALLEGED
RAPE WITHIN THE RESIDENCE OF THE VICTIM WHERE SEVERAL OF THE ALLEGED VICTIM'S FAMILY MEMBERS AND THEIR
RESPECTIVE MOTHERS WERE PRESENT IS IMPROBABLE AND CONTRARY TO HUMAN EXPERIENCE.

IV.

THE HONORABLE APPELLATE COURT ERRED IN UPHOLDING THE FACTS SET FORTH BY THE ALLEGED VICTIM REGARDING THE
CIRCUMSTANCES ATTENDING THE COMMISSION OF RAPE SOMETIME IN AUGUST 1996.[34]

Petitioner argues that, while it is true that the factual findings of the CA are conclusive on this Court, we are not prevented from overturning
such findings if the CA had manifestly overlooked certain facts of substance and value which if considered might affect the result of the
case. Petitioner stresses that from the testimonies of AAA and BBB, it can be deduced that penetration was achieved; thus, AAA felt pain.
Petitioner contends that assuming the allegations of AAA are true that petitioner inserted his fingers and his penis into her vagina, certainly
such acts would leave certain abrasions, wounds and/or lacerations on the genitalia of AAA, taking into consideration her age at the time
and the alleged size of petitioner's penis. However, such allegation is completely belied by the medical report of Dr. Katalbas who, one
day after the alleged rape, conducted a medical examination on AAA and found that there were no signs or indications that AAA was
raped or molested. Petitioner submits that the CA committed a grave error when it disregarded such medical report since it disproves the
allegation of the existence of rape and, consequently, the prosecution failed to prove its case; thus, the presumption of innocence in favor
of the petitioner subsists. Moreover, petitioner opines that like AAA, petitioner is also a child of the barrio who is innocent, unsophisticated
and lacks sexual experience. As such, it is incredible and contrary to human reason that a 13- year-old boy would commit such act in the
very dwelling of AAA, whose reaction to pain, at the age of six, could not be controlled or subdued. Petitioner claims that poverty was
MMM's motive in filing the instant case,
as she wanted to extort money from the parents of the petitioner. Petitioner points out that the medical report of Dr. Jocson indicated that
the abrasions that were inflicted on the genitalia of AAA were relatively fresh and the same could disappear within a period of 3 to 4 days.
Considering that Dr. Jocson conducted the medical examination on December 12, 1996, or after the lapse of eleven (11) days after the
alleged incident of rape, and that AAA's parents only filed the instant case after almost a year, in order to deter Luzviminda from filing a
case of slander by deed against FFF, it is not inconceivable that MMM inflicted said abrasions on AAA to prove their case and to depart
from the initial confession of AAA that it was actually BBB who raped her. Finally, petitioner submits that AAA and BBB were merely coached
by MMM to fabricate these stories.[35]

On the other hand, respondent People of the Philippines through the Office of the Solicitor General (OSG) contends that: the arguments
raised by the petitioner are mere reiterations of his disquisitions before the CA; the RTC, as affirmed by the CA, did not rely on the
testimonies of both doctors since despite the absence of abrasions, rape is consummated even with the slightest penetration of the lips of
the female organ; what is relevant in this case is the reliable testimony of AAA that petitioner raped her in August and December of 1996;
even in the absence of force, rape was committed considering AAA's age at that time; as such, AAA did not have any ill motive in
accusing petitioner; and it is established that the crime of rape could be committed even in the presence of other people
nearby. Moreover, the OSG relies on the doctrine that the evaluation made by a trial court is accorded the highest respect as it had the
opportunity to observe directly the demeanor of a witness and to determine whether said witness was telling the truth or not. Lastly, the
OSG claims that petitioner acted with discernment when he committed the said crime, as manifested in his covert acts.[36]

However, Republic Act (R.A.) No. 9344,[37] or the Juvenile Justice and Welfare Act of 2006, was enacted into law on April 28, 2006 and it
took effect on May 20, 2006.[38] The law establishes a comprehensive system to manage children in conflict with the law [39] (CICL) and
children at risk[40] with child-appropriate procedures and comprehensive programs and services such as prevention, intervention, diversion,
rehabilitation, re-integration and after-care programs geared towards their development. In order to ensure its implementation, the law,
particularly Section 8[41] thereof, has created the Juvenile Justice and Welfare Council (JJWC) and vested it with certain duties and
functions[42] such as the formulation of policies and strategies to prevent juvenile delinquency and to enhance the administration of juvenile
justice as well as the treatment and rehabilitation of the CICL. The law also

provides for the immediate dismissal of cases of CICL, specifically Sections 64, 65, 66, 67 and 68 of R.A. No. 9344's Transitory Provisions.[43]

The said Transitory Provisions expressly provide:

Title VIII
Transitory Provisions

SECTION 64. Children in Conflict with the Law Fifteen (15) Years Old and Below. Upon effectivity of this Act, cases of
children fifteen (15) years old and below at the time of the commission of the crime shall immediately be dismissed and
the child shall be referred to the appropriate local social welfare and development officer. Such officer, upon thorough
assessment of the child, shall determine whether to release the child to the custody of his/her parents, or refer the child
to prevention programs, as provided under this Act. Those with suspended sentences and undergoing rehabilitation at
the youth rehabilitation center shall likewise be released, unless it is contrary to the best interest of the child.

SECTION 65. Children Detained Pending Trial. If the child is detained pending trial, the Family Court shall also determine
whether or not continued detention is necessary and, if not, determine appropriate alternatives for detention. If
detention is necessary and he/she is detained with adults, the court shall immediately order the transfer of the child to a
youth detention home.
SECTION 66. Inventory of "Locked-up" and Detained Children in Conflict with the Law. The PNP, the BJMP and the
BUCOR are hereby directed to submit to the JJWC, within ninety (90) days from the effectivity of this Act, an inventory
of all children in conflict with the law under their custody.

SECTION 67. Children Who Reach the Age of Eighteen (18) Years Pending Diversion and Court Proceedings. If a child
reaches the age of eighteen (18) years pending diversion and court proceedings, the appropriate diversion authority in
consultation with the local social welfare and development officer or the Family Court in consultation with the Social
Services and Counseling Division (SSCD) of the Supreme Court, as the case may be, shall determine the appropriate
disposition. In case the appropriate court executes the judgment of conviction, and unless the child in conflict with the
law has already availed of probation under Presidential Decree No. 603 or other similar laws, the child may apply for
probation if qualified under the provisions of the Probation Law.

SECTION 68. Children Who Have Been Convicted and are Serving Sentences. Persons who have been convicted and
are serving sentence at the time of the effectivity of this Act, and who were below the age of eighteen (18) years at
the time of the commission of the offense for which they were convicted and are serving sentence, shall likewise
benefit from the retroactive application of this Act. They shall be entitled to appropriate dispositions provided under this
Act and their sentences shall be adjusted accordingly. They shall be immediately released if they are so qualified under
this Act or other applicable laws.

Ostensibly, the only issue that requires resolution in this case is whether or not petitioner is guilty beyond reasonable doubt of the crime of
rape as found by both the RTC and the CA. However, with the advent of R.A. No. 9344 while petitioner's case is pending before this Court,
a new issue arises, namely, whether the pertinent provisions of R.A. No. 9344 apply to petitioner's case, considering that at the time he
committed the alleged rape, he was merely 13 years old.

In sum, we are convinced that petitioner committed the crime of rape against AAA. In a prosecution for rape, the complainant's candor is
the single most important factor. If the complainant's testimony meets the test of credibility, the accused can be convicted solely on that
basis.[44] The RTC, as affirmed by the CA, did not doubt AAA's credibility, and found no ill motive for her to charge petitioner of the heinous
crime of rape and to positively identify him as the malefactor. Both courts also accorded respect to BBB's testimony that he saw petitioner
having sexual intercourse with his younger sister. While petitioner asserts that AAA's poverty is enough motive for the imputation of the
crime, we discard such assertion for no mother or father like MMM and FFF would stoop so low as to subject their daughter to the
tribulations and the embarrassment of a public trial knowing that such a traumatic experience would damage their daughter's psyche and
mar her life if the charge is not true.[45] We find petitioner's claim that MMM inflicted the abrasions found by Dr. Jocson in the genitalia of
AAA, in order to extort money from petitioners parents, highly incredible. Lastly, it must be noted that in most cases of rape committed
against young girls like AAA who was
only 6 years old then, total penetration of the victim's organ is improbable due to the small vaginal opening. Thus, it has been held that
actual penetration of the victim's organ or rupture of the hymen is not required.[46] Therefore, it is not necessary for conviction that the
petitioner succeeded in having full penetration, because the slightest touching of the lips of the female organ or of the labia of the
pudendum constitutes rape.[47]

However, for one who acts by virtue of any of the exempting circumstances, although he commits a crime, by the complete absence of
any of the conditions which constitute free will or voluntariness of the act, no criminal liability arises. [48] Therefore, while there is a crime
committed, no criminal liability attaches. Thus, in Guevarra v. Almodovar,[49] we held:

[I]t is worthy to note the basic reason behind the enactment of the exempting circumstances embodied in Article 12 of
the RPC; the complete absence of intelligence, freedom of action, or intent, or on the absence of negligence on the
part of the accused. In expounding on intelligence as the second element of dolus, Albert has stated:

"The second element of dolus is intelligence; without this power, necessary to determine the morality
of human acts to distinguish a licit from an illicit act, no crime can exist, and because . . . the infant
(has) no intelligence, the law exempts (him) from criminal liability."

It is for this reason, therefore, why minors nine years of age and below are not capable of performing a criminal act.

In its Comment[50] dated April 24, 2008, the OSG posited that petitioner is no longer covered by the provisions of Section 64 of R.A. No. 9344
since as early as 1999, petitioner was convicted by the RTC and the conviction was affirmed by the CA in 2001. R.A. No. 9344 was passed
into law in 2006, and with the petitioner now approximately 25 years old, he no longer qualifies as a child as defined by R.A. No. 9344.
Moreover, the OSG claimed that the retroactive effect of Section 64 of R.A. No. 9344 is
applicable only if the child-accused is still below 18 years old as explained under Sections 67 and 68 thereof. The OSG also asserted that
petitioner may avail himself of the provisions of Section 38[51]of R.A. No. 9344 providing for automatic suspension of sentence if finally found
guilty. Lastly, the OSG argued that while it is a recognized principle that laws favorable to the accused may be given retroactive
application, such principle does not apply if the law itself provides for conditions for its application.

We are not persuaded.

Section 6 of R.A. No. 9344 clearly and explicitly provides:

SECTION 6. Minimum Age of Criminal Responsibility. A child fifteen (15) years of age or under at the time of the
commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an
intervention program pursuant to Section 20 of this Act.

A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and
be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be
subjected to the appropriate proceedings in accordance with this Act.

The exemption from criminal liability herein established does not include exemption from civil liability, which shall be
enforced in accordance with existing laws.

Likewise, Section 64 of the law categorically provides that cases of children 15 years old and below, at the time of the commission of the
crime, shall immediately be dismissed and the child shall be referred to the appropriate local social welfare and development officer
(LSWDO). What is
controlling, therefore, with respect to the exemption from criminal liability of the CICL, is not the CICL's age at the time of the promulgation
of judgment but the CICL's age at the time of the commission of the offense. In short, by virtue of R.A. No. 9344, the age of criminal
irresponsibility has been raised from 9 to 15 years old.[52]

Given this precise statutory declaration, it is imperative that this Court accord retroactive application to the aforequoted provisions of R.A.
No. 9344 pursuant to the well-entrenched principle in criminal law - favorabilia sunt amplianda adiosa restrigenda. Penal laws which are
favorable to the accused are given retroactive effect.[53] This principle is embodied in Article 22 of the Revised Penal Code, which provides:

Art. 22. Retroactive effect of penal laws. Penal laws shall have a retroactive effect insofar as they favor the persons
guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at
the time of the publication of such laws, a final sentence has been pronounced and the convict is serving the same.

We also have extant jurisprudence that the principle has been given expanded application in certain instances involving special
laws.[54] R.A. No. 9344 should be no exception.

In fact, the legislative intent for R.A. No. 9344's retroactivity is even patent from the deliberations on the bill in the Senate, quoted as follows:

Sections 67-69 On Transitory Provisions

Senator Santiago. In Sections 67 to 69 on Transitory Provisions, pages 34 to 35, may I humbly propose that we should
insert, after Sections 67 to 69, the following provision:

ALL CHILDREN WHO DO NOT HAVE CRIMINAL LIABILITY UNDER THIS LAW PENDING THE CREATION OF THE OFFICE OF
JUVENILE WELFARE AND RESTORATION (OJWR) AND THE LOCAL COUNCIL FOR THE PROTECTION OF CHILDREN (LCPC)
WITHIN A YEAR, SHALL BE IMMEDIATELY TRANSFERRED TO DSWD INSTITUTIONS, AND DSWD SHALL UNDERTAKE DIVERSION
PROGRAMS FOR THEM, PRIORITIZING THE YOUNGER CHILDREN BELOW 15 YEARS OF AGE AND THE LIGHTER OFFENSES.

The only question will be: Will the DSWD have enough facilities for these adult offenders?

Senator Pangilinan, Mr. President, according to the CWC, the DSWD does not have the capability at the moment. It will
take time to develop the capacity.

Senator Santiago. Well, we can say that they shall be transferred whenever the facilities are ready.

Senator Pangilinan. Yes. Mr. President, just a clarification. When we speak here of children who do not have criminal
liability under this law, we are referring here to those who currently have criminal liability, but because of the retroactive
effect of this measure, will now be exempt. It is quite confusing.

Senator Santiago. That is correct.

Senator Pangilinan. In other words, they should be released either to their parents or through a diversion program, Mr.
President. That is my understanding.

Senator Santiago. Yes, that is correct. But there will have to be a process of sifting before that. That is why I was
proposing that they should be given to the DSWD, which will conduct the sifting process, except that apparently, the
DSWD does not have the physical facilities.

Senator Pangilinan. Mr. President, conceptually, we have no argument. We will now have to just craft it to ensure that
the input raised earlier by the good Senator is included and the capacity of the DSWD to be able to absorb these
individuals. Likewise, the issue should also be incorporated in the amendment.

The President. Just a question from the Chair. The moment this law becomes effective, all those children in conflict with
the law, who were convicted in the present Penal Code, for example, who will now not be subject to incarceration
under this law, will be immediately released. Is that the understanding?

Senator Pangilinan. Yes, Mr. President.

Senator Santiago. They would immediately fall under . . . .

Senator Pangilinan. The diversion requirements, Mr. President.

Senator Santiago. Yes.

The President. But since the facilities are not yet available, what will happen to them?

Senator Santiago. Well, depending on their age, which has not yet been settled . . . . . provides, for example, for
conferencing family mediation, negotiation, apologies, censure, et cetera. These methodologies will apply.They do not
necessarily have to remain in detention.

Senator Pangilinan. Yes, that is correct, Mr. President. But it will still require some sort of infrastructure, meaning,
manpower. The personnel from the DSWD will have to address the counseling. So, there must be a transition in terms of
building the capacity and absorbing those who will benefit from this measure.

The President. Therefore, that should be specifically provided for as an amendment.

Senator Pangilinan. That is correct, Mr. President.

The President. All right. Is there any objection? [Silence] There being none, the Santiago amendment is accepted.[55]

xxxx

PIMENTEL AMENDMENTS

xxxx

Senator Pimentel.

xxxx

Now, considering that laws are normally prospective, Mr. President, in their application, I would like to suggest to the
Sponsor if he could incorporate some kind of a transitory provision that would make this law apply also to those who
might already have been convicted but are awaiting, let us say, execution of their penalties as adults when, in fact, they
are juveniles.

Senator Pangilinan. Yes, Mr. President. We do have a provision under the Transitory Provisions wherein we address the
issue raised by the good Senator, specifically, Section 67. For example, Upon effectivity of this Act, cases of children
 fifteen (15) years old and below at the time of the commission of the crime shall immediately be dismissed and the child
shall be referred to the appropriate local social welfare and development officer. So that would be giving retroactive
effect.

Senator Pimentel. Of cases that are still to be prosecuted.

Senator Pangilinan. Yes.

Senator Pimentel. What about those that have already been prosecuted? I was trying to cite the instance of juvenile
offenders erroneously convicted as adults awaiting execution.

Senator Pangilinan. Mr. President, we are willing to include that as an additional amendment, subject to style.

Senator Pimentel. I would certainly appreciate that because that is a reality that we have to address, otherwise injustice
will really be . . .

Senator Pangilinan. Yes, Mr. President, we would also include that as a separate provision.

The President. In other words, even after final conviction if, in fact, the offender is able to prove that at the time of the
commission of the offense he is a minor under this law, he should be given the benefit of the law.

Senator Pimentel. Yes, Mr. President. That is correct.

Senator Pangilinan. Yes, Mr. President. We accept that proposed amendment.[56]

The Court is bound to enforce this legislative intent, which is the dominant factor in interpreting a statute. Significantly, this Court has
declared in a number of cases, that intent is the soul of the law, viz.:

The intent of a statute is the law. If a statute is valid it is to have effect according to the purpose and intent of the
lawmaker. The intent is the vital part, the essence of the law, and the primary rule of construction is to ascertain and
give effect to the intent. The intention of the legislature in enacting a law is the law itself, and must be enforced when
ascertained, although it may not be consistent with the strict letter of the statute. Courts will not follow the letter of a
statute when it leads away from the true intent and purpose of the legislature and to conclusions inconsistent with the
general purpose of the act. Intent is the spirit which gives life to
a legislative enactment. In construing statutes the proper course is to start out and follow the true intent of the
legislature and to adopt that sense which harmonizes best with the context and promotes in the fullest manner the
apparent policy and objects of the legislature.[57]

Moreover, penal laws are construed liberally in favor of the accused.[58] In this case, the plain meaning of R.A. No. 9344's unambiguous
language, coupled with clear lawmakers' intent, is most favorable to herein petitioner. No other interpretation is justified, for the simple
language of the new law itself demonstrates the legislative intent to favor the CICL.

It bears stressing that the petitioner was only 13 years old at the time of the commission of the alleged rape. This was duly proven by the
certificate of live birth, by petitioner's own testimony, and by the testimony of his mother. Furthermore, petitioners age was never assailed in
any of the proceedings before the RTC and the CA. Indubitably, petitioner, at the time of the commission of the crime, was below 15 years
of age. Under R.A. No. 9344, he is exempted from criminal liability.

However, while the law exempts petitioner from criminal liability for the two (2) counts of rape committed against AAA, Section 6 thereof
expressly provides that there is no concomitant exemption from civil liability. Accordingly, this Court sustains the ruling of the RTC, duly
affirmed by the CA, that petitioner and/or his parents are liable to pay AAA P100,000.00 as civil indemnity. This award is in the nature of
actual or compensatory damages, and is mandatory upon a conviction for rape.

The RTC, however, erred in not separately awarding moral damages, distinct from the civil indemnity awarded to the rape victim. AAA is
entitled to moral damages in the amount of P50,000.00 for each count of rape, pursuant to Article 2219 of the Civil Code, without the
necessity of additional pleading or proof other than the fact of rape. Moral damages are granted in recognition of the victim's injury
necessarily resulting from the odious crime of rape.[59]

A final note. While we regret the delay, we take consolation in the fact that a law intended to protect our children from the harshness of
life and to alleviate, if not cure, the ills of the growing number of CICL and children at risk in our country, has been enacted by Congress.
However, it has not escaped us that major concerns have been raised on the effects of the law. It is worth mentioning that in the Rationale
for the Proposed Rule on Children Charged under R.A. No. 9165, or the Comprehensive Dangerous Drugs Act of 2002, it was found that:

The passage of Republic Act No. 9344 or the Juvenile Justice and Welfare Act of 2006 raising the age of criminal
irresponsibility from 9 years old to 15 years old has compounded the problem of employment of children in the drug
trade several times over. Law enforcement authorities, Barangay Kagawads and the police, most particularly, complain
that drug syndicates have become more aggressive in using children 15 years old or below as couriers or foot soldiers in
the drug trade. They claim that Republic Act No. 9344 has rendered them ineffective in the faithful discharge of their
duties in that they are proscribed from taking into custody children 15 years old or below who openly flaunt possession,
 use and delivery or distribution of illicit drugs, simply because their age exempts them from criminal liability under the
new law. [60]

The Court is fully cognizant that our decision in the instant case effectively exonerates petitioner of rape, a heinous crime committed
against AAA who was only a child at the tender age of six (6) when she was raped by the petitioner, and one who deserves the laws
greater protection. However, this consequence is inevitable because of the language of R.A. No. 9344, the wisdom of which is not subject
to review by this Court.[61] Any perception that the result reached herein appears unjust or unwise should be addressed to Congress.
Indeed, the Court has no discretion to give statutes a meaning detached from the manifest intendment and language of the law. Our task
is constitutionally confined only to applying the law and jurisprudence to the proven facts, and we have done so in this case.[62]

WHEREFORE, in view of the foregoing, Criminal Case Nos. 98-19083 and 98-19084 filed against petitioner Joemar F. Ortega are
hereby DISMISSED. Petitioner is hereby referred to the local social welfare and development officer of the locality for the appropriate
intervention program. Nevertheless, the petitioner is hereby ordered to pay private complainant AAA, civil indemnity in the amount of One
Hundred Thousand Pesos (P100,000.00) and moral damages in the amount of One Hundred Thousand Pesos (P100,000.00). No costs.

Let a copy of this Decision be furnished the two Houses of Congress and the Juvenile Justice and Welfare Council (JJWC).

SO ORDERED.

NIEL F. LLAVE, G.R. No. 166040

Petitioner,

Present:

PANGANIBAN, C. J., Chairperson,

YNARES-SANTIAGO,

- versus - AUSTRIA-MARTINEZ,

CALLEJO, SR., and

CHICO-NAZARIO, JJ. *

PEOPLE OF THE PHILIPPINES,

Respondent. Promulgated:

April 26, 2006

x-----------------------------------------------------------------------------------------x

DECISION

CALLEJO, SR., J.:

Before the Court is a Petition for Review of the Decision[1] of the Court of Appeals (CA) in CA-G.R. CR No. 26962 affirming, with modification,
the Decision[2] of the Regional Trial Court (RTC) of Pasay City, Branch 109, in Criminal Case No. 02-1779 convicting Petitioner Neil F. Llave of
rape.

On September 27, 2002, an Information charging petitioner (then only 12 years old) with rape was filed with the RTC of Pasay
City. The inculpatory portion of the Information reads:
 That on or about the 24th day of September 2002, in Pasay City, Metro Manila, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, NEIL LLAVE Y FLORES, aka NIEL F. LLAVE, a minor over
nine (9) years of age and under fifteen (15) but acting with discernment, by means of force threat and intimidation, did
then and there willfully, unlawfully, feloniously have carnal knowledge of the complainant, DEBBIELYN SANTOS y
QUITALES, a minor, seven (7) years of age, against her will and consent.

Contrary to law.[3]

The Case for the Prosecution

The spouses Domingo and Marilou Santos were residents of Pasay City.[4] One of their children, Debbielyn, was born on December 8,
1994.[5] In 2002, she was a Grade II student at the Villamor Air Base Elementary School in Pasay City[6] and attended classes
from 12:00 noon to 6:00 p.m.[7]

Domingo eked out a living as a jeepney driver, while Marilou sold quail eggs at a nearby church. [8] Adjacent to their house was
that of Teofisto Bucud, a barbecue vendor who would usually start selling at 6:30 p.m.[9] Next to Teofistos residence was a vacant house.[10]

Debbielyn testified that on September 24, 2002, she arrived home at past 6:00 p.m. She changed her clothes and proceeded to her
mothers store. Marilou asked her daughter to bring home the container with the unsold quail eggs. [11] Debbielyn did as told and went on
her way. As she neared the vacant house, she saw petitioner, who suddenly pulled her behind a pile of hollow blocks which was in front of
the vacant house. There was a little light from the lamp post.[12] She resisted to no avail.[13] Petitioner ordered her to lie down on the
cement. Petrified, she complied. He removed her shorts and underwear then removed his own. He got on top of her.[14] She felt his penis
being inserted into her vagina. He kissed her.[15] She felt pain and cried.[16] She was sure there were passersby on the street near the vacant
house at the time.

It was then that Teofisto came out of their house and heard the girls cries. He rushed to the place and saw petitioner on top of Debbielyn,
naked from the waist down. Teofisto shouted at petitioner, and the latter fled from the scene. Teofisto told Debbielyn to inform her parents
about what happened.[17] She told her father about the incident.[18] Her parents later reported what happened to the police
authorities.[19] Debbielyn told the police that petitioner was a bad boy because he was a rapist.[20]

Teofisto testified that at about 6:25 p.m. on September 24, 2002, he went out of their house to get his barbecue grill. He heard someone
moaning from within the adjacent vacant house.[21] He rushed to the place and saw petitioner, naked from waist down, on top of
Debbielyn, making pumping motions on her anus.[22] The girl was crying. He shouted at petitioner, Hoy, bakit ginawa mo yan?[23]Petitioner
hurriedly put his shorts on and fled.[24] Neighbors who had heard Teofisto shouting arrived.[25] Later, Teofisto gave a written statement to the
police investigator regarding the incident.[26]

Domingo Santos testified that at about 6:30 p.m. that day, he was inside their house. His daughter, Kimberly Rose, suddenly told him that
Debbielyn had been raped near the vacant house by petitioner.[27] He rushed to the place and found her daughter crying. When he asked
her what happened, she replied that she had been abused. He brought Debbielyn to their house and then left.[28] He then looked for
petitioner and found him at his grandmothers house. A barangay tanod brought petitioner to the barangay hall.[29] On September 25, 2002,
he brought her daughter to the Philippine General Hospital Child Protection Unit at Taft Avenue, Manila where she was examined by Dr.
Mariella S. Castillo.

Dr. Castillo declared on the witness stand that she was a physician at the Child Protection Unit of the Philippine General Hospital.
On September 25, 2002, she interviewed the victim who told her Masakit ang pepe ko, Ni-rape ako.[30] Dr. Castillo also conducted a genital
examination on the child, and found no injury on the hymen and perineum, but found scanty yellowish discharge between the labia
minora.[31] There was also a fresh abrasion of the perineal skin at 1 oclock position near the anal opening.[32] She declared that the findings
support the theory that blunt force or penetrating trauma (such as an erect penis, finger, or any other foreign body [33]) was applied to the
perineal area[34] not more than six or seven days before.[35] The abrasion could have been caused on September 24, 2002. She found no
spermatozoa in the vaginal area or injury at the external genitalia;[36] neither did she find any other injury or abrasion on the other parts of
the victims body.[37] She concluded that her findings were consistent with the victims claim that she was sexually abused by petitioner.
Barangay Tanod Jorge Dominguez, for his part, testified that on September 24, 2002, Marilou Santos arrived at the barangay hall and
reported that her daughter had been raped by petitioner who was then in his aunts house at Cadena de Amor Street. Barangay Captain
Greg Florante ordered him and Barangay Tanod Efren Gonzales to proceed to Cadena de Amor Street and take the boy into custody,
and they did as they were told.[38]

The Case for the Accused

Petitioner, through counsel, presented Dr. Castillo as witness. She declared that the abrasions in the perineal area could have
been caused while the offender was on top of the victim.[39] She explained that the distance between the anus and the genital area is
between 2.5 to 3 centimeters.[40] The abrasion was located at of an inch from the anal orifice.

Petitioner testified and declared that he was a freshman at the Pasay City South High School.[41] He had been one of the three
outstanding students in grade school and received awards such as Best in Mathematics.[42] He also finished a computer course and
received a Certificate of Completion from the Philippine Air Force Management Information Center.[43] He denied having raped the private
complainant. He declared that at 6:30 p.m. on September 24, 2002, he was outside of their house to buy rice in the carinderia[44] and he
saw her on his way back.[45] He also met his father, who asked him what he had done to their neighbor. He was also told that the victims
father was so angry that the latter wanted to kill him.[46] He did not ask his father for the name of the angry neighbor. He was also told to
pass by Cadena de Amor Street in going to his aunts house. Petitioner also declared that his mother prodded him to go to his aunts
house.[47] Later, Domingo and Barangay Tanod Jorge Dominguez arrived at his aunts house and brought him to the barangay hall. He did
not know of any reason why Debbielyn and her parents would charge him with rape.[48]

Petitioner also declared that he played cards with Debbielyn.[49] While confined at the Pasay City Youth Home during trial, he had
a crush on Issa, a young female inmate. Using a piece of broken glass (bubog) about half-an-inch long, he inscribed her name on his right
thigh, left leg and left arm.[50]

Nida Llave testified and identified her sons Certificate of Live Birth, in which it appears that he was born on March 6, 1990.[51] She
declared that at about 6:30 p.m. on September 24, 2000, Marilou Santos and Marilyn Bucud arrived in their house looking for her son.
According to Marilyn, her son had raped the private complainant. She went to their house to look for her son and came across Domingo
Santos who threatened to kill her son. She and her husband proceeded to the house of his sister Josefina at Cadena de Amor Street where
petitioner had hidden for a while.[52]

At the conclusion of the trial, the court rendered judgment convicting Neil of the crime charged. The decretal portion of the
decision reads:

FROM ALL THE FOREGOING, the Court opines that the prosecution has proven the guilt of the xxx Niel Llave y
Flores beyond reasonable doubt when he forcibly pulled the complainant towards the vacant lot, laid on top of her and
had carnal knowledge with the [complainant] against her will and consent who is only seven (7) years old
(sic). Moreover, he being a minor, he cannot be meted with the Death penalty.

WHEREFORE, the Court finds the CICL [Child in Conflict with the Law] Niel Llave y Flores guilty beyond
reasonable doubt, and crediting him with the special mitigating circumstance of minority, this Court hereby sentences
him to prision mayor minimum, Six (6) years and One (1) day to Eight (8) years, and pay civil indemnity of Fifty Thousand
Pesos (Php50,000.00).[53]

The trial court declared that based on the evidence of the prosecution that petitioner pushed the victim towards the vacant
house and sexually abused her, petitioner acted with discernment. It also considered petitioners declaration that he had been a consistent
honor student.[54]

Petitioner appealed the decision to the CA, where he averred the following in his Brief as appellant therein:
 I

THE LOWER COURT ERRED WHEN IT DISREGARDED THE MATERIAL INCONSISTENCIES OF THE TESTIMONY OF COMPLAINING
WITNESS WITH THAT OF THE MEDICAL REPORT ON THE FACTUAL ALLEGATION OF BLEEDING.

II

THE LOWER COURT ERRED WHEN IT GAVE CREDENCE TO THE TESTIMONY OF THE PROSECUTION WITNESS TEOFISTO BUCUD
WHO HAS REASON TO FABRICATE A SCENARIO AGAINST ACCUSED-APPELLANT BECAUSE HE HAS PERSONAL VENDETTA
AGAINST THE LATTERS FAMILY/RELATIVES.

III

THE LOWER COURT ERRED IN UPHOLDING THE THEORY OF THE PROSECUTION OF RAPE BY HAVING CARNAL KNOWLEDGE,
BEING CONTRARY TO THE PHYSICAL EVIDENCE.[55]

The CA rendered judgment affirming the decision with modification as to the penalty meted on him.

WHEREFORE, the decision subject of the instant appeal is hereby MODIFIED in that the accused-appellant is
sentenced to an indeterminate penalty of two (2) years and four (4) months of prision correccionalmedium as the
minimum to eight (8) years and one (1) day of prision mayor medium as the maximum. Additionally, the accused-
appellant is ordered to pay the complaining witness the amount of P50,000 by way of moral damages and P20,000 by
way of exemplary damages.

SO ORDERED.[56]

Petitioner filed a Motion for the Reconsideration,[57]contending that the prosecution failed to adduce proof that he acted with
discernment; hence, he should be acquitted. The appellate court denied the motion in a Resolution [58] dated November 12, 2004 on the
following finding:

As regards the issue of whether the accused-appellant acted with discernment, his conduct during and after
the crime betrays the theory that as a minor, the accused-appellant does not have the mental faculty to grasp the
propriety and consequences of the act he made. As correctly pointed out by the prosecution, the fact that forthrightly
upon discovery, the accused-appellant fled the scene and hid in his grandmothers house intimates that he knew that he
did something that merits punishment.

Contrary to the urgings of the defense, the fact that the accused-appellant is a recipient of several academic
awards and is an honor student further reinforces the finding that he [is] possessed [of] intelligence well beyond his years
and is thus poised to distinguish, better at least than other minors his age could, which conduct is right and which is
morally reprehensible.[59]

Petitioner now raises the following issues and arguments in the instant petition before this Court:

ISSUES

I
 WHETHER OR NOT EVIDENCE WAS SUFFICIENT TO CONVICT PETITIONER BEYOND REASONABLE DOUBT.

II

WHETHER OR NOT PETITIONER, WHO WAS A MINOR ABOVE 9 YEARS BUT BELOW 15 YEARS OF AGE AT THE TIME OF THE
CRIME, ACTED WITH DISCERNMENT.

III

WHETHER OR NOT PETITIONER WAS DENIED DUE PROCESS OF LAW.

ARGUMENTS

THE MATERIAL INCONSISTENCIES BETWEEN THE TESTIMONY OF COMPLAINING WITNESS WITH THE MEDICAL REPORT BELIE THE
FINDING OF RAPE.

II

PRIVATE COMPLAINANT IS NOT A CREDIBLE WITNESS.

III

PETITIONER ACTED WITHOUT DISCERNMENT.

IV

THE TESTIMONY RELIED UPON BY THE PROSECUTION IS HEARSAY.

THE COMPLAINT IS FABRICATED.

VI

PETITIONER WAS DENIED DUE PROCESS OF LAW.[60]

The issues raised by the petitioner in this case may be summarized as follows: (1) whether he was deprived of his right to a
preliminary investigation; (2) whether he had carnal knowledge of the private complainant, and if in the affirmative, whether he acted with
discernment in perpetrating the crime; (3) whether the penalty imposed by the appellate court is correct; and (4) whether he is liable to
pay moral damages to the private complainant.

On the first issue, petitioner avers that he was deprived of his right to a preliminary investigation before the Information against him
was filed.

On the second issue, petitioner claims that the prosecution failed to prove beyond reasonable doubt that he had carnal
knowledge of Debbielyn. He insists that her testimony is inconsistent on material points. He points out that she claimed to have felt pain in
her vagina when petitioner inserted his penis to the point that she cried; this, however, is negated by Dr. Castillos report stating that there
was no evidence of injury on the victims external genitalia. Petitioner maintains that as against the victims testimony and that of Dr. Castillos
report, the latter should prevail.

According to petitioner, mere touching of the female organ will not suffice as factual basis of conviction for consummated
rape. Moreover, the victims testimony lacks credibility in view of her admission that, while she was being allegedly ravished by him, there
were passersby along the street. Besides, petitioner avers, an abrasion may be caused by an invasion of the body through the protective
covering of the skin. Petitioner insists that the prosecution failed to prove the cause of the abrasion.

Petitioner also claims that the victim was tutored or coached by her parents on her testimony before the trial court. Dr. Castillo
testified that when she interviewed Debbielyn, the latter admitted to her that she did not understand the meaning of the word rape and its
Filipino translation, hinalay, and that the genital examination of the girl was at the insistence of the latters parents.

Petitioner avers that Teofisto Bucuds testimony has no probative weight because and had an ill-motive to testify against him.
Petitioner stated, on cross-examination, that his uncle, Boy, had the house rented by Teofisto demolished. Petitioner avers that the witness
persuaded the victims parents to complain against him, as gleaned from the testimony of Police Investigator Milagros Carroso.

For its part, the Office of the Solicitor General (OSG) avers that petitioner was subjected to an inquest investigation under Section
7, Rule 112 of the Revised Rules of Criminal Procedure, as gleaned from the Certification of the City Prosecutor incorporated in the
Information. It avers that the absence of external injuries does not negate rape; neither is it necessary that lacerations be found on the
hymen of a victim. Rape is consummated if there is some degree of penetration within the vaginal surface. Corroborative evidence is not
necessary to prove rape. As long as the testimony of the victim is credible, such testimony will suffice for conviction of consummated
rape. When the victim testified that she was raped, she was, in effect, saying all that is necessary to prove that rape was
consummated. Petitioners evidence to prove ill-motive on the part of Teofisto Bucud in testifying against him is at best flimsy. Moreover, it is
incredible that the victim and her parents would charge petitioner with rape solely on Teofistos proddings.

The OSG insists that the petitioner acted with discernment before, during, and after the rape based on the undisputed facts. The
submission of the OSG follows:

Petitioner argues that since he was only 12 years old at the time of the alleged rape incident, he is presumed to
have acted without discernment under paragraph 3 of Article 12 of the Revised Penal Code. Under said provision, the
prosecution has the burden of proving that he acted with discernment. In the instant case, petitioner insists that there
was no evidence presented by the prosecution to show that he acted with discernment. Hence, he should be exempt
from criminal liability.

Petitioners arguments are bereft of merit.

Discernment, as used in Article 12(3) of the Revised Penal Code is defined as follows: the discernment that constitutes an
exception to the exemption from criminal liability of a minor under fifteen (15) years of age but over nine (9), who
commits an act prohibited by law, is his mental capacity to understand the difference between right and wrong (People
v. Doquena, 68 Phil. 580 [1939]). For a minor above nine but below fifteen years of age, he must discern the rightness or
wrongness of the effects of his act (Guevarra v. Almodova, G.R. No. 75256, January 26, 1989).

Professor Ambrocio Padilla, in his annotation of Criminal Law (p. 375, 1998 Ed.), writes that discernment is more than the
mere understanding between right and wrong. Rather, it means the mental capacity of a minor between 9 and 15 years
of age to fully appreciate the consequences of his unlawful act (People v. Navarro, [CA] [51 O.G. 4062]). Hence, in
judging whether a minor accused acted with discernment, his mental capacity to understand the difference between
right and wrong, which may be known and should be determined by considering all the circumstances disclosed by the
record of the case, his appearance, his attitude and his behavior and conduct, not only before and during the
commission of the act, but also after and even during the trial should be taken into consideration (People v. Doquena,
supra).
 In the instant case, petitioners actuations during and after the rape incident, as well as his behavior during the trial
showed that he acted with discernment.

The fact appears undisputed that immediately after being discovered by the prosecutions witness, Teofisto
Bucud, petitioner immediately stood up and ran away. Shortly thereafter, when his parents became aware of the
charges against him and that private complainants father was looking for him, petitioner went into hiding. It was not until
the Barangay Tanod came to arrest him in his grandmothers house that petitioner came out in the open to face the
charges against him. His flight as well as his act of going into hiding clearly conveys the idea that he was fully aware of
the moral depravity of his act and that he knew he committed something wrong. Otherwise, if he was indeed innocent
or if he was not least aware of the moral consequences of his acts, he would have immediately confronted private
complainant and her parents and denied having sexually abused their daughter.

During the trial, petitioner submitted documentary evidence to show that he was a consistent honor student
and has, in fact, garnered several academic awards. This allegation further bolstered that he acted with discernment,
with full knowledge and intelligence. The fact that petitioner was a recipient of several academic awards and was an
honor student further reinforces the finding that he was possessed of intelligence well beyond his years and thus was
able to distinguish, better than other minors of his age could, which conduct is right and which is morally
reprehensible. Hence, although appellant was still a minor of twelve years of age, he possessed intelligence far beyond
his age. It cannot then be denied that he had the mental capacity to understand the difference between right and
wrong. This is important in cases where the accused is minor. It is worthy to note that the basic reason behind the
enactment of the exempting circumstances under Article 12 of the Revised Penal Code is the complete absence of
intelligence, freedom of action, or intent on the part of the accused. In expounding on intelligence as the second
element of dolus, the Supreme Court has stated: The second element of dolus is intelligence; without this power,
necessary to determine the morality of human acts to distinguish a licit from an illicit act, no crime can exist, and
because the infant has no intelligence, the law exempts (him) from criminal liability (Guevarra v. Aldomovar, 169 SCRA
476 [1989], at page 482).

The foregoing circumstances, from the time the incident up to the time the petitioner was being held for trial,
sufficiently satisfied the trial court that petitioner acted with discernment before, during and after the rape incident. For a
boy wanting in discernment would simply be gripped with fear or keep mum. In this case, petitioner was fully aware of
the nature and illegality of his wrongful act. He should not, therefore, be exempted from criminal liability. The prosecution
has sufficiently proved that petitioner acted with discernment.[61]

In reply, petitioner asserts that the only abrasion found by Dr. Castillo was on the peri-anal skin and not in the labia of the hymen.
He further insists that there can be no consummated rape absent a slight penetration on the female organ. It was incumbent on the
prosecution to prove that the accused acted with discernment but failed. The mere fact that he was an honor student is not enough
evidence to prove that he acted with discernment.

The petition is not meritorious.

On the first issue, petitioners contention that he was deprived of his right to a regular preliminary investigation is barren of factual
and legal basis. The record shows that petitioner was lawfully arrested without a warrant. Section 7, Rule 112 of the Revised Rules of Criminal
Procedure provides:

SEC. 7. When accused lawfully arrested without warrant. When a person is lawfully arrested without a warrant
involving an offense which requires a preliminary investigation, the complaint or information may be filed by a
prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing
rules. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a
peace officer directly with the proper court on the basis of the affidavit of the offended party or arresting officer or
person.
 Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in
accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as
amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must
be terminated within fifteen (15) days from its inception.

After the filing of the complaint or information in court without a preliminary investigation, the accused may,
within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce
evidence in his defense as provided for in this Rule.

As gleaned from the Certification[62] of the City Prosecutor which was incorporated in the Information, petitioner did not execute any
waiver of the provisions of Article 125 of the Revised Penal Code before the Information was filed. He was arraigned with the assistance of
counsel on October 10, 2002, and thereafter filed a petition for bail.[63] Petitioners failure to file a motion for a preliminary investigation within
five days from finding out that an Information had been filed against him effectively operates as a waiver of his right to such preliminary
investigation.[64]

On the second issue, a careful review of the records shows that the prosecution adduced evidence to prove beyond reasonable doubt
that petitioner had carnal knowledge of the private complainant as charged in the Information. In People v. Morata[65] the Court ruled that
penetration, no matter how slight, or the mere introduction of the male organ into the labia of the pudendum, constitutes carnal
knowledge. Hence, even if the penetration is only slight, the fact that the private complainant felt pains, points to the conclusion that the
rape was consummated.[66]

From the victims testimony, it can be logically concluded that petitioners penis touched the middle part of her vagina and
penetrated the labia of the pudendum. She may not have had knowledge of the extent of the penetration; however, her straightforward
testimony shows that the rape passed the stage of consummation.[67] She testified that petitioner dragged her behind a pile of hollow
blocks near the vacant house and ordered her to lie down. He then removed her shorts and panty and spread her legs. He then mounted
her and inserted his penis into her vagina:

Fiscal Barrera:

Q: From what time up to what time?

A: From 12:00 oclock noon up to 6:00 p.m.

Q: September 24, 2002 and going over the calendar, it was Tuesday. Did you go to school from 12:00 oclock noon up
to 6:00 p.m.?

A: Yes, Sir, on the same date I went to school.

Q: At about 6:00 p.m., Sept. 24, 2002, where were you?

A: I went home.

Q: And by whom you are referring to your house at 1-C Carnation St., R. Higgins, Maricaban, Pasay City?

A: Yes, Sir.

Q: And what did you do after you went home?

A: I changed my clothes and then I proceeded to the store of my mother.

Q: And where is that store of your mother where you went?

A: It is near our house, walking distance.

Q: What is your mother selling in that store?

A: She sells quail eggs.

Q: And were you able to immediately go to the store of your mother where she was selling quail eggs?

A: Yes, sir.

Q: And that was past 6:00 p.m. already?

A: Yes, sir.

Q: And what happened when you went to the store where your mother is selling quail eggs past 6:00 p.m.?

A: My mother asked me to bring home something.

Q: What were these things you were asked by your mother to bring home?

A: The things she used in selling.

Q: And did you obey what your mother told you to bring home something?

A: Yes, Sir.

Q: And what happened to you in going to your house?

A: Totoy pulled me.

Q: Pulled you where?

A: Totoy pulled me towards an uninhabited house.

Q: What happened after Totoy pulled you in an uninhabited house?

A: He told me to lie down on the cement.

Q: What happened after he laid you down on the cement?

A: He removed my shorts and panty. He also removed his shorts.

Q: After Totoy removed your shorts and panty and he also removed his shorts, what happened next?

A: He inserted his penis inside my vagina.

 Q: What did you feel when Totoy inserted his penis inside your vagina?

A: It was painful.

Q: Aside from inserting his penis inside your vagina, what else did you do to you?

A: He kissed me on my lips.

Q: After Totoy inserted his penis inside your vagina and kissed you on your lips, what did you do?

A: I cried.

Q: What happened when you were crying when he inserted his penis inside your vagina and kissed you on your lips.
What happened next?

A: Somebody heard me crying.

Q: Who heard you crying?

A: Kuya Teofe, Sir.

Q: What happened after you cried and when somebody heard you crying?

A: Totoy ran away.

Q: After Totoy ran away, what happened next?

A: When Totoy ran away, I was left and Kuya Teofe told me to tell the matter to my parents.

Q: Did you tell your parents what Totoy did to you?

A: Yes, Sir.[68]

On cross-examination, the victim was steadfast in her declarations:

ATTY. BALIAD:

Q: Again, in what particular position were you placed by Totoy when he inserted his penis inside your vagina?

A: I was lying down.

 Q: Aside from lying down, how was your body positioned at that time?

A: He placed on top of me.

Q: After he placed on top of you, what else did he do to you, if any?

A: He started to kiss me and then he inserted his penis inside my vagina.

Q: Did you feel his penis coming in into your vagina?

A: Yes, Sir.

Q: Are you sure that his penis was inserted inside your vagina?

A: Yes, Sir.[69]

When questioned on cross-examination whether she could distinguish a vagina from an anus, the victim declared that she could and
proceeded to demonstrate. She reiterated that the penis of petitioner penetrated her vagina, thus, consummating the crime charged:

Atty. Baliad:

Q: Do you recall having stated during the last hearing that the accused, Neil Llave or Totoy inserted his penis in your
vagina, do you recall that?

A: Yes, Sir.

Q: And likewise, you testified that you feel that the penis of Neil entered your vagina?

A: Yes, Sir.

Q: Could you distinguish vagina from your anus?

A: Yes, Sir.

Q: Where is your pepe?

A: (Witness pointing to her vagina.)

Q: Where is your anus?

A: (Witness pointing at her back, at the anus.)

Q: In your statement, am I correct to say that Neil, the accused in this case penetrated only in your vagina and not in
your anus?

A: Yes, Sir.

Q: So that, your anus was not even touched by the accused neither by his penis touched any part of your anus?
 A: He did not insert anything on my anus, Sir.[70]

While it is true that Dr. Castillo did not find any abrasion or laceration in the private complainants genitalia, such fact does not negate the
latters testimony the petitioner had carnal knowledge of her. The absence of abrasions and lacerations does not disprove sexual abuses,
especially when the victim is a young girl as in this case.[71] According to Dr. Castillo, the hymen is elastic and is capable of stretching and
reverting to its original form.[72] The doctor testified that her report is compatible with the victims testimony that she was sexually assaulted by
petitioner:

Atty. Baliad:

Q: Do you recall having stated during the last hearing that the accused, Neil Llave or Totoy inserted his penis in your
vagina, do you recall that?

A: Yes, Sir.

Q: And likewise, you testified that you feel (sic) that the penis of Neil entered your vagina?

A: Yes, Sir.

Q: Could you distinguish vagina from your anus?

A: Yes, Sir.

Q: Where is your pepe?

A: (Witness pointing to her vagina.)

Q: Where is your anus?

A: (Witness pointing at her back, at the anus.)

Q: In your statement, am I correct to say that Neil, the accused in this case penetrated only in your vagina and not in
your anus?

A: Yes, Sir.

Q: So that, your anus was not even touched by the accused neither by his penis touched any part of your anus?

A: He did not insert anything on my anus, Sir.

xxxx

Fiscal Barrera:

Q: Based on your testimony doctor, and the medico genital examination propounded on the report that the victim here,
Debbielyn Santos is complaining that around 6:00 in the evening of September 24, 2002, she was sexually
abused and that on the following day, September 25, you interviewed her and stated to you that her genitalia
was hurting and in binocular (sic) masakit ang pepe ko, ni-rape ako, would your findings as contained in this
Exh. B and C be compatible with the allegation if the minor victim that she was sexually abused on September
24. 2002 at around 6:00 p.m.?

Atty. Baliad:

Objection, Your Honor. The one who narrated the incident is the mother.
 Court:

What is your objection?

Atty. Baliad:

The objection, Your Honor, is the question propounded is that it was the minor who made the complaint
regarding the allegation.

Fiscal Barrera:

The answer were provided..

Court:

The doctor is being asked whether or not her findings is compatible with the complaint of the
minor. Overruled. Answer.

Witness:

A It is compatible with the allegation of the minor.

Fiscal Barrera:

Confronting you again with your two (2) medico-genital documents, the Provincial and Final Report mark[ed] in
evidence as Exhs. B and C, at the lower portion of these two exhibits there appears to be a signature above
the typewritten word, Mariella Castillo, M.D., whose signature is that doctor?

A Both are my signatures, Sir.[73]

Dr. Castillo even testified that the abrasion near the private complainants anal orifice could have been caused by petitioner while
consummating the crime charged:

Fiscal Barrera:

Q: With your answer, would it be possible doctor that in the process of the male person inserting his erect penis inside the
vagina, in the process, would it be possible that this abrasion could have been caused while in the process of
inserting the penis into the vagina touch the portion of the anus where you find the abrasion?

A: It is possible, Sir.

Q: Now, are you aware, in the course of your examination, that the alleged perpetrator is a 12-year-old minor?

A: I only fount it out, Sir, when I testified.

Q: Do you still recall your answer that a 12-year-old boy could cause an erection of his penis?

A: Yes, sir.
 Q: To enlight[en] us doctor, we, not being a physician, at what age could a male person can have erection?

A: Even infants have an erection.[74]

Petitioners contention that the private complainant was coached by her parents into testifying is barren of merit. It bears stressing
that the private complainant testified in a straightforward and spontaneous manner and remained steadfast despite rigorous and intensive
cross-examination by the indefatigable counsel of the petitioner. She spontaneously pointed to and identified the petitioner as the
perpetrator.

It is inconceivable that the private complainant, then only a seven- year old Grade II pupil, could have woven an intricate story of
defloration unless her plaint was true.[75] The Presiding Judge of the trial court observed and monitored the private complainant at close
range as she testified and found her testimony credible. Case law is that the calibration by the trial court of the evidence on record and its
assessment of the credibility of witnesses, as well as its findings of facts and the conclusions anchored on said findings, are accorded
conclusive effect by this Court unless facts and circumstances of substance were overlooked, misconstrued or misinterpreted, which, if
considered would merit a nullification or reversal of the decision. We have held that when the offended party is young and immature, from
the age of thirteen to sixteen, courts are inclined to give credence to their account of what transpired, considering not only their relative
vulnerability but also the shame and embarrassment to which they would be exposed if the matter to which they testified is not true.[76]

Neither do we lend credence to petitioners claim that the charge against him is but a fabrication and concoction of the private
complainants parents. Indeed, petitioner admitted in no uncertain terms that the spouses had no ill-motive against him. Thus, Neil testified
as follows:

Fiscal Barrera:

Q: As you testified earlier that you have played post cards with Debbielyn Santos alias Lyn-lyn and you have no quarrel
or misunderstanding with Lyn-lyn. Do you know of any reason why Lyn-lyn complaint (sic) against you for sexual
abuse?

A: I dont know of any reason, Sir.

Q: You also testified that you do not have any quarrel or misunderstanding with Lyn-lyns parents, spouses Domingo
Santos, Jr. and Marilou Santos, do you think of any reason as to why they would file a complaint against you for
molesting their 7-year-old daughter?

A: I do not know of any reason why they filed a complaint against me, Sir.

Fiscal Barrera:

That would be all, Your Honor.[77]

There is no evidence that the parents of the offended party coached their daughter before she testified. No mother or father
would stoop so low as to subject their daughter to the tribulations and the embarrassment of a public trial knowing that such a traumatic
experience would damage their daughters psyche and mar her life if the charge is not true.[78]

On the other hand, when the parents learned that their daughter had been assaulted by petitioner, Domingo tried to locate the
offender and when he failed, he and his wife reported the matter to the barangay authorities. This manifested their ardent desire to have
petitioner indicted and punished for his delictual acts.

That petitioner ravished the victim not far from the street where residents passed by does not negate the act of rape committed
by petitioner. Rape is not a respecter of time and place. The crime may be committed by the roadside and even in occupied
premises.[79] The presence of people nearby does not deter rapists from committing the odious act.[80] In this case, petitioner was so daring
that he ravished the private complainant near the house of Teofisto even as commuters passed by, impervious to the fact that a crime was
being committed in their midst.
Case law has it that in view of the intrinsic nature of rape, the only evidence that can be offered to prove the guilt of the offender is the
testimony of the offended party. Even absent a medical certificate, her testimony, standing alone, can be made the basis of conviction if
such testimony is credible. Corroborative testimony is not essential to warrant a conviction of the perpetrator. [81] Thus, even without the
testimony of Teofisto Bucud, the testimonies of the offended party and Dr. Castillo constitute evidence beyond reasonable doubt
warranting the conviction of petitioner.

Teofistos testimony cannot be discredited by petitioner simply because his uncle caused the demolition of the house where Teofisto and his
family were residing. It bears stressing that Teofisto gave a sworn statement to the police investigator on the very day that the petitioner
raped Debbielyn and narrated how he witnessed the crime being committed by the petitioner.[82] In the absence of proof of improper
motive, the presumption is that Teofisto had no ill-motive to so testify, hence, his testimony is entitled to full faith and credit.[83]

The trial court correctly ruled that the petitioner acted with discernment when he had carnal knowledge of the offended party; hence, the
CA cannot be faulted for affirming the trial courts ruling.

Article 12, paragraph 3 of the Revised Penal Code provides that a person over nine years of age and under fifteen is exempt from
criminal liability, unless he acted with discernment. The basic reason behind the exempting circumstance is complete absence of
intelligence, freedom of action of the offender which is an essential element of a felony either by dolus or by culpa. Intelligence is the
power necessary to determine the morality of human acts to distinguish a licit from an illicit act. [84] On the other hand, discernment is the
mental capacity to understand the difference between right and wrong. The prosecution is burdened to prove that the accused acted
with discernment by evidence of physical appearance, attitude or deportment not only before and during the commission of the act, but
also after and during the trial.[85] The surrounding circumstances must demonstrate that the minor knew what he was doing and that it was
wrong. Such circumstance includes the gruesome nature of the crime and the minors cunning and shrewdness.

In the present case, the petitioner, with methodical fashion, dragged the resisting victim behind the pile of hollow blocks near the vacant
house to insure that passersby would not be able to discover his dastardly acts. When he was discovered by Teofisto Bucud who shouted at
him, the petitioner hastily fled from the scene to escape arrest. Upon the prodding of his father and her mother, he hid in his grandmothers
house to avoid being arrested by policemen and remained thereat until barangay tanods arrived and took him into custody.

The petitioner also testified that he had been an outstanding grade school student and even received awards. While in Grade I,
he was the best in his class in his academic subjects. He represented his class in a quiz bee contest.[86] At his the age of 12, he finished a
computer course.

In People v. Doquea,[87] the Court held that the accused-appellant therein acted with discernment in raping the victim under the
following facts:

Taking into account the fact that when the accused Valentin Doquea committed the crime in question, he
was a 7th grade pupil in the intermediate school of the municipality of Sual, Pangasinan, and as such pupil, he was one
of the brightest in said school and was a captain of a company of the cadet corps thereof, and during the time he was
studying therein he always obtain excellent marks, this court is convinced that the accused, in committing the crime,
acted with discernment and was conscious of the nature and consequences of his act, and so also has this court
observed at the time said accused was testifying in his behalf during the trial of this case.[88]

The CA ordered petitioner to pay P50,000.00 as moral damages and P20,000.00 as exemplary damages. There is no factual basis
for the award of exemplary damages. Under Article 2231, of the New Civil Code, exemplary damages may be awarded if the crime was
committed with one or more aggravating circumstances. In this case, no aggravating circumstance was alleged in the Information and
proved by the People; hence, the award must be deleted.
 IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The decision of the Court of Appeals in CA-G.R. CR No.
26962 is AFFIRMED WITH MODIFICATION that the award of exemplary damages is DELETED.

SO ORDERED.

G.R. No. L-6897 February 15, 1912

THE UNITED STATES, plaintiff-appellee,

vs.
POLICARPIO TAYONGTONG, defendant-appellant.

Jose M. Arroyo for appellant.

Acting Attorney-General Harvey for appellee.

MORELAND, J.:

The defendant in this case was convicted of the crime of homicide by negligence (homicidio por imprudencia temeraria). He appealed,
basing his whole case here upon the proposition that the evidence does not warrant the conviction.

It appears that on the 19th day of January, 1911, one Severino Resume was engaged in painting telephones poles located along the
highway between Jaro and Iloilo. On that day he was killed by being run over by an automobile driven by the defendant. The highway at
the point where Severino met his death was straight, of considerable width, and in good condition. The telephone pole upon which
Severino was at work at the time of the accident was outside of the beaten portion of the highway and located about 2 feet into the grass
at the side. Between it and the edge of the road was a pathway used by people traveling on foot. The machine which caused the death
of the deceased is a large passengers, and having upon each side and extending about 2 feet out beyond the wheels a rack or other
contrivance for the carrying of parcels, baggage, and freight. It is used solely for the purpose of carrying passengers back and forth
between Iloilo and Jaro.

The accident happened at about 10 o' clock in the morning. The automobile was then engaged in making its third trip from Iloilo at Jaro,
and was loaded to its fullest capacity. There were several people who claim to have witnessed the accident. One of them, the principal
witness for the prosecution, and its only witness who saw the occurrence, named Pablo Tayson, is alleged to have been standing within a
few feet of the deceased, talking with him, at the time he was run down. Another person, who was near by at the time of the accident,
was Basilio Severaldo, who was engaged in the same work as the deceased but, just prior to the passage of the automobile, had gone
away from the locality where the accident occurred and saw nothing of what happened. Two other persons, who have been produced
as witnesses for the defendant, allege that they were present and saw the whole occurrence.

Pablo Tayson, who, as we have said, is the only witness for the prosecution testifying directly to the facts and substantially the only witness
upon whom the prosecution relies for a conviction, testified that at the time of the accident he and the deceased were located on the
left-hand side of the highway going from Iloilo at Jaro; that he was standing a few feet from the deceased who was also on the same side
of the highway; that the deceased was standing up painting the side of the telephone pole toward Jaro; that the telephone pole was,
therefore, between the deceased and Iloilo, the direction from which the automobile was coming; that the road on that day was very
dusty and the automobile, as he saw it coming from Iloilo toward him and the deceased, was raising a cloud of dust which he was drifting
to the side of the road upon which he and the deceased were located. This witness further asserted that he saw the automobile when it
was within about 1,200 feet of the place where he stood; that it was coming at a rate of speed variously termed by him "very fast" and "at
full speed;" that, on observing the machine as it approached, he saw that the driver, the accused, was turning the steering wheel first in
one direction and then the other, as if uncertain what course he was going to pursue; that the machine, as a consequence, was darting
first to one side of the road and then to the other, thus zigzagging back and forth across the traveled portion of the highway; that just
before reaching the place where deceased was painting the telephone pole it crossed to the side of the road opposite to him and then
suddenly started back across the road opposite to him and then suddenly started back across the road, striking the deceased as he stood
painting; that by the impact the deceased was thrown upon the ground somewhat toward the front of the machine, which was going so
fast that, although the accused was not within the reach of its wheels, nevertheless, the "suction," as the witness called it, created by the
swift passage of the machine drew the deceased under its wheels where he was run over and crushed.

From the testimony of the witness it does not appear that the deceased moved or stirred in any way until he was hit by the automobile.

The accused testified, and produced several witnesses to support his testimony, that at the time of the accident he was driving the
machine, which was loaded to its fullest capacity with passengers and baggage, at about 10 to 15 miles an hour; that he was driving in or
near the center of the road and pas to either side; that the machine was under full control and was going steadily and smoothly without
deviating to the right or to the left; that on approaching the place where the witness Pablo Tayson stood he saw him turn his back toward
the road and place his cap over his face in such a way as to cover his nose, mouth and eyes, evidently to protect them from the cloud of
dust which was rolling from behind the machine over toward the side of the road on which he was; that the deceased, as the machine
approached, probably seeing the cloud of dust which it was raising and which would inevitably drift in his direction, and observing his
companion, Pablo Tayson, under the necessity of protecting himself from the dust in the manner described, just before the machine
reached a point opposite him, started to cross the road to the other side, evidently to escape the dust; that he misjudged the distance and
started too late; that in attempting to cross he placed himself squarely in front of the machine; that his movement was so sudden and
unexpected and, when he reached the road, he was so close to the machine that it was impossible to stop it in time to avert the
catastrophe; that he did everything that was possible to be done to avoid the accident; that he put on both brakes as hard as possible
and turned the machine as much as could be done under the circumstances; that in proof thereof he shows that only the front wheel of
the machine passed over the body of the deceased, it having been turned by him sufficiently so that the mind wheel missed him, and that
the machine was stopped a very few feet beyond the point where the accident occurred. The accused testified, and his evidence in this
regard is uncontradicted, that he was thoroughly qualified as a driver, having served his apprenticeship on this very road and this very
machine before being employed.

The accused denies absolutely that portion of the story told by Pablo Tayson in which he alleges that the accused was driving at a high
rate of speed; that he was zigzagging from one side of the road to the other; and that he struck the deceased while he stood painting the
telephone pole.

We are satisfied that the evidence is not sufficient to convict. On the contrary, we believe that, under all of the facts and circumstances of
the case, the fair preponderance of the evidence indicates that the deceased met his death in substantially the manner described by the
accused. In the first place, the testimony of Pablo Tayson is affected by an attack made upon his credibility during the progress of the trial.
It was shown that, on the preliminary investigation had by the justice of the peace, this witness testified, precisely as the accused asserted
in his evidence, that just as the machine was arriving at a point in the highway opposite him, he, desiring to avoid the unpleasantness of the
dust, turned his back toward the road and covered his face with his cap, thereby excluding the dust from his mouth, eyes, and nostrils. That
he so testified on the preliminary investigation, according to the record thereof, is admitted. In his testimony on the trial of this case he
stated, at first, that he turned his right side to the road and placed his hand over the side of his face. leaving his eyes uncovered, so that he
was able to see and did see the deceased at the time he was run down. Upon cross-examination he changed this testimony to the extent
of saying that he covered the right side of his face with his cap instead of his hand, maintaining, however, that he did not cover his eyes
and that he was able to see the deceased and all that transpired. When confronted with the evidence which he gave on the preliminary
examination, he sought to explain the difference between his two declarations by stating that the testimony before the justice of the
peace, which was reduced to writing and signed by him, was in a different language from that which he was able to speak and to speak
and that it was not translated so that he knew what he was signing.

In the second place, the testimony of this witness is unreasonable. It is improbable that a machine as large as the one in question, going at
the rate of speed described by Pablo Tayson, could zigzag from one side of the highway to the other in the manner described by the
witness. It is still more improbable that this machine could have dodged from the right-hand side of the road to the left and, in some
unknown manner, picked the deceased out from behind the telephone pole, dragged him into the highway and there run over him. It is
not clear how an automobile can run over a man when it is admitted that he is on the opposite side of a telephone post from the machine
which ruins him down, with only a portion of his body extending beyond it. Even if the machine had started toward him in the manner
described he would undoubtedly have seen it quickly enough to have passed around the other side of the post and save himself from
being touched. This is especially evident when we observe that it is admitted that the deceased stood facing the automobile all the time
and could see it plainly and its every movement. It is difficult to believe that a machine of the size of the one in question, driven at the high
rate of speed alleged by the witness, could have turned suddenly, darted toward the ditch, and struck the deceased while located partly
on the opposite side of a post from the machine without having collided with the post or gone into the ditch, it being remembered that the
post was not more than 6 feet from the ditch.

From the transcription given of the machine it appears, as we have already seen, that there were certain portions of the body of the
machine extending over and beyond the wheels, which were used as receptacles for the baggage and bundles of passengers. This
projection, under the theory of the prosecution, would necessarily have been the portion of the machine to hit the deceased for the
reason that no other part of the machine could have come in contact with him without the projection referred to striking the telephone
pole. If this projection is that which struck the deceased first, then he would have been thrown into the ditch away from the machine and
not into the highway under the machine. This is what would necessarily have happened when we remember that at the time the
deceased was struck the machine was going at full speed toward the ditch. It was apparently to avoid the contradiction of his previous
testimony inherent in this necessary result that the witness testified that the force which prevented the deceased from going into the ditch
and drew him under the machine was the "suction" created by its rapid passage along the highway.

It is undisputed evidence of the case that that portion of the machine which struck the deceased first was the mudguard over the left
wheel. This fact alone shows the impossibility of the machine having hit the deceased while standing at the post, as it is admitted that no
part of the automobile collided with the post. If the deceased had been at the post, as described by Tayson, the guard could not possibly
have struck him without the extended portions described having struck the post itself.

On the otherhand, the story told by the accused and supported by some of the passengers who saw the accident is entirely reasonable,
accords with common sense and ordinary experience. It was clearly told, in a manner frank and straightforward, was free from
contradictions and needs no explanation or excuses.

We have read with detention the opinion upon which the judgment of conviction is based. In spite of careful study, we are unable to
discover anything therein that alters our views in relation to the merits. As between the two theories, the one of the prosecution and the
other of the defense, we cannot have, under the evidence and record, any hesitation in choosing. The evidence presented by the
prosecution itself, and it is upon that evidence alone that the conviction must stand, every other fact in the record being conspicuously in
exculpation of the accused, shows the deceased standing upon the east side of a telephone pole facing an automobile coming toward
him from the west, about half of his body extending beyond the pole toward the highway on his left. On his right was the highway drainage
ditch. The pole was outside of the travelled portion of the highway so far that a footpath lay between it and said traveled portion. The
automobile was coming toward him at a high rate of speed, to judge from the evidence of this witness, at least 40 miles an hour, possibly
more. The machine was not proceeding in a straight line but it was going from one side of the road to the other. Just before arriving
opposite the deceased it darted to the right-hand side of the road and then, turning, it started toward the left-hand side directly at the
deceased. All of these things the deceased saw, yet he did not move or attempt to save himself in any way. On the contrary, he stood still
and permitted the machine to strike him upon his left side. Having collided with him, the machines turned back toward the center of the
highway, carrying the deceased with it, depositing him within the traveled portion of the highway, where it ran over him. On the other
hand, the evidence of the defendant shows that he was driving the machine at a moderate rate of speed within the usually traveled
portion of the highway, guiding it in a substantially straight line and handling it in the usual and ordinary manner. The machine, one of
extraordinary size and capable of carrying 35 passengers with their baggage and effects, was incapable of running at the rate of speed
described by the prosecution. Arriving at a point in the highway just in front of the deceased, the latter, to avoid the cloud of dust which
was drifting to his side of the road, started to cross the road to the other side. He miscalculated the time and distance and as a result was
struck by the automobile and run over. His action in starting across the road was so sudden and unexpected and, when he reached the
road, he was so close to the automobile, that it was impossible to stop the machine in time to save him. The body was picked up within the
traveled portion of the highway.

Which of these two stories is the most reasonable? We have no hesitation in answering. The story of the prosecution presents so many things
that are unreasonable and incredible and for which there exists in the record no explanation whatever, and concerning which no
reasonable explanation can give, that it must necessarily be rejected. Even if, going at such a high rate of speed, the accused could have
driven the automobile from one side of the road to the other as alleged, what could possibly be his reason for so doing? It was market day
at Jaro; this was his third trip; the machine was loaded to its utmost capacity, both with passengers and with baggage; he was doubtedly
running according to a schedule and would have no time to waste in going from one side of the road to the other; no reason is suggested
and one can be supplied why a driver should handle his machine in the manner described by the only witness for the prosecution who saw
the whole occurrence. Instead of Kepping to the travelled portion of the highway, which was admittedly in fine condition, why should the
accused go outside of it, across a foothpath used by pedestrians, and skin alongside of the telephone poles located on that side? What
object could he have had in thus exposing himself, his passengers, and his machine to the risks and dangers of plunging into the drainage
ditch or driving against the telephone poles or meeting the other disasters and dangers which might be encountered outside of the usually
traveled portion of the highway? No explanation of such extraordinary conduct is given in the record and none can be conceived. He was
not engaged in taking a party of hilarious companions on a "joy" ride, nor in giving an exhibition of his skill in handling an automobile of that
size and class. It does not appear that he was drunk or foolish. He was engaged in a business enterprise, employed by a businessman
purposes. What could possibly have been his purpose when, or arriving at a point in front of the deceased, he turned his automobile across
the road and started squarely toward the telephone pole and the deceased? That he saw the deceased and that the deceased saw him
is admitted. What spirit or purpose could have animated him in driving his automobile outside of the highway directly toward not only a
telephone post but the drainage ditch itself in order to run down an unoffending person? What motive can be assigned by the prosecution
when it asserts that the accused did this unaccountable thing? What purpose does the prosecution allege the accused sought to subserve
when, by this conduct, he placed the safety of his passengers and of his machine, as well as of himself, at stake in thus driving directly
toward a place of great danger? Above all, why did the deceased stand still, instead of stepping around behind the post, and permit
himself to be crushed to death by the machine which he clearly saw bearing down upon him? These unreasonable and accountable
things must be satisfactorily explained by the prosecution when it is confronted by the statement of the accused, supported by a number
of disinterested witnesses, that none of those things ever occurred. We have already pointed out that, giving the story as told by the
prosecution credence, it would have been little short of an impossibility for the body of the deceased to have found itself in the travelled
portion of the highway after the accident. He would inevitably have been driven further away from the highway and toward the ditch by
the blow from the machine going in the direction in which it was alleged by the prosecution to have been going.

Turning to the story of the event as given by the defendant and his witnesses, we meet nothing that requires explanation. There can,
therefore, be no hesitation on our part in accepting the truth of the story told by the defendant.

Although we have held in a recent case (U. S. vs. Reyes, 10 Off. Gaz., 1045), a criminal action for homicide by imprudencia temeraria, that
contributory negligence on the part of the person killed is no defense, provided the driver of automobile himself was negligent and that
negligence was the proximate cause of the death, nevertheless, that doctrine does not in any way inveigh against the proposition which
we here assert that, where death is due to the negligence of the decedent himself and not to the negligence of the driver of the
automobile, the latter cannot be held for homicide. In this case the death of the deceased was due entirely to his own negligence. There is
not sufficient reliable proof in the record to establish negligence on the part of the accused. There being no negligence, he is not
responsible, no matter what the result of the accident may have been.

The judgment of conviction is reversed and the accused acquitted.

[G.R. No. 157933. August 10, 2004]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ESMER MONTENEGRO; FREDDIE MACA (At Large); KIKING SALAHAY (At Large); BADIL
SALAHAY (At Large); MAMA MONTENEGRO (At Large); and FLORIE MEDRANO (At Large), accused;

ESMER MONTENEGRO, accused-appellant.

DECISION
AZCUNA, J.:

Appellant Esmer Montenegro was charged together with Freddie Maca, Kiking Salahay, Badil Salahay, Mama Montenegro and Florie
Medrano before the Regional Trial Court of Tandag, Surigao del Sur, Branch 27, for Kidnapping and Serious Illegal Detention on October 22,
2001. Inasmuch as all the other accused were at large, the trial proceeded only with respect to herein appellant Esmer Montenegro who
had surrendered and who has been detained by the authorities. After trial, he was found guilty by the lower court and sentenced to death.

The case is before us on automatic review.

The Information

Appellant and his co-accused were charged under an information that reads, as follows:

The undersigned prosecutor hereby accuses KIKING SALAHAY, alias ENRIQUE MENDOZA, FREDDIE MACA, BADIL SALAHAY, ESMER
MONTENEGRO, MAMA MONTENEGRO, and FLORIE MEDRANO, with the crime of KIDNAPPING AND SERIOUS ILLEGAL DETENTION, committed
as follows:

That on the 23rd day of August 2001, about 7:30 in the morning, more or less, at Umalag, San Miguel, Surigao del Sur, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, did, then
and there, willfully, unlawfully and feloniously kidnap and forcibly bring one Gerardo Mag-isa, 42 years old, to an undisclosed place for the
purpose of extorting ransom, wherein the latter was detained and deprived of his liberty for a period of seven (7) days, to the damage and
prejudice of said victim.

CONTRARY TO LAW. (In violation of Article 267 as amended by R.A. 7659).[1]

Upon arraignment, appellant pleaded not guilty.[2]

Pre-Trial

On July 5, 2002 a pre-trial hearing was conducted and terminated on the same day, where the following admissions were made by
appellant and recorded in a Pre-Trial Order:[3]

1. His identity as Esmer Montenegro;

2. the date and place of the incident, namely, August 23, 2001 at about 7:30 in the morning at Umalag, San Miguel, Surigao del Sur;

3. that with him were his co-accused Kiking Salahay, alias Enrique Mendoza, Freddie Maca, Badil Salahay, Mama Montenegro and
Florie Montenegro;

4. the existence of the four-page letter of the victim addressed to his wife Rose;

5. that the victim Gerry Mag-isa was kidnapped and detained for seven days; appellant however alleged that he acted under the
compulsion of an irresistible force;

6. the one-page letter also dated August 23, 2001 by the victim addressed to Rose.

Appellant, however, proposed for admission by the prosecution the defense of having acted under the compulsion of an irresistible
force. The prosecution rejected the proposal.

The Prosecutions Evidence

The prosecution offered the following as its exhibits:

Exhibit A - 4-page letter dated August 23, 2001

signed by Gerry Mag-isa and addressed

 to his wife Rose;

Exhibit B - 1-page letter signed by Gerry and

addressed to his wife Rose.

The prosecution did not present any witness nor any other evidence and relied mainly on the admissions made by appellant during
the pre-trial hearing and on Exhibits A and B which it formally offered in evidence.

On July 5, 2002, the trial court issued the following Order:[4]

After the pre-trial and considering the admission of the defense in so far as the accused Esmer Montenegro is concerned, Assistant
Provincial Prosecutor Elpidio I. Digaum moved to be allowed to formally offer his evidence and rest his case. Granted. Formally offered in
evidence are the following exhibits namely: the 4-page letter dated August 23, 2001 signed by Gerry the victim in this case addressed to his
wife Rose marked as Exhibit A and the 1-page letter also dated August 23, 2001 signed by the same victim Gerry addressed to his wife Rose.
The alleged purpose is to prove demand for money by the alleged kidnappers. The defense admitted the existence of Exhibits A and B and
denied the purposes for which the same are offered.

Considering the admission of the existence of Exhibits A and B, the same are ordered admitted. The purpose of the offer and objection
thereto will be evaluated in the appreciation of the evidence. The prosecution having rested its case, the reception of defense is set for
August 13, 2002 at 8:30 in the morning. x x x

Evidence For The Defense

Appellant, in his defense, testified that in the early morning of August 23, 2001, he was fetched from his house located at Barangay
Caromata, San Miguel, Surigao del Sur, by his uncle Freddie Maca, who asked him to accompany him to collect money from a certain
person and who told him that he will give him P500. They proceeded to Barangay Umalag and when they reached the place, he was
made to wait at the waiting shed while his uncle went to the house of a certain councilor to fetch a relative by the name of Mama
Montenegro. When Freddie Maca came back, he was accompanied by Mama Montenegro and Kiking Salahay and Badil Salahay whom
he noticed to be all armed with .45 and .38 caliber guns. Then they all proceeded to the mountain of Umalag.

They proceeded to the mountain of Umalag because the person who was indebted to Freddie Maca was invited to that area. When
they reached their destination, Kiking Salahay pointed his gun at a person who later turned out to be Gerry Mag-isa.

Appellant asked Freddie Maca for permission to go home because he was afraid of what the group did. Freddie Maca relayed his
request to Kiking Salahay. Fearing that he would report the matter to the police, Kiking Salahay said that it would be better for all of them if
they just killed appellant. Appellant then begged for his life and stayed with the group.

The group proceeded to Barangay Bitaugan and stayed there for one day and two nights. On the second night, however, at about
11:00 oclock in the evening, they discovered that Gerry Mag-isa had escaped. Seizing the opportunity to leave the group, he asked
permission to go home to which the group agreed.[5]

Upon reaching Barangay Caromata, he immediately reported the incident to Barangay Captain Felicula Gran who promised to assist
him. She accompanied him in surrendering to Sgt. Nacional of the Philippine Army who picked him up and brought him to the Municipal
Hall of San Miguel where he was detained until the case was filed.[6]

The Trial Courts Decision

After trial, the lower court, finding that the prosecution had established the crime charged, rendered its decision on November 20,
2002 convicting appellant of the crime of Kidnapping with Serious Illegal Detention and sentencing him to death.[7]

In its decision, the trial court presented the following facts:[8]

Evidence for the prosecution show[s] that on August 23, 2001, at about 7:30 in the morning, at Umalag, San Miguel, Surigao del Sur, the
victim Gerry Mag-isa was at the mining site together with Arsenio L. Darasan, Ricardo P. Cabangbang, and Joseph C. Flores. At that
moment, a man arrived who said that he was instructed by the Barangay Captain of Umalag, San Miguel, Surigao del Sur, by the name of
Kapitan Piling, to invite Gerry Mag-isa and to bring him to her residence because it was the fiesta of her Barangay. Because they were so
busy at that time, Gerry Mag-isa refused to go with him and instead handed him an amount of P200.00 when he left. Not long after fifteen
minutes had passed, after said person left, three men arrived with the same intention of inviting him to the house of Kapitan Piling. However,
when the three men were at the makeshift hut they suddenly pulled out their .45 and .38 caliber handguns and ordered Gerry Mag-isa,
Arsenio L. Darasan, Ricardo P. Cabangbang and Joseph C. Flores to drop to the ground. That while still lying face on the ground, they saw
Kiking Salahay, the leader of the group, hand over a piece of paper to Gerry Mag-isa and [Kiking Salahay] ordered him to write a note to
his wife, telling her to give the amount of Two Million Pesos (P2,000,000.00) for the release of her husband. That soon after the note was
written, they instructed Arsenio Darasan, Joseph C. Flores and Ricardo P. Cabangbang to bring said note to the wife of the victim. That
after they left with Gerry Mag-isa, they immediately went to Tandag, Surigao del Sur (See Joint Affidavit of Arsenio L. Darasan, et al. in page
24 of the record).
The allegation of the victim Gerry Mag-isa (See Affidavit on page 23 of the record) shows that he was forcibly abducted and kidnapped
about 7:00 in the morning of August 23, 2001, at Barangay Umalag, San Miguel, Surigao del Sur. He stated, that he was treated well by the
kidnappers, except that when he answered to the call of nature, he was watched closely and they were asking money from his family. The
kidnappers also took from him the amount of P320.00 which was spent for their food in the mountains and his chainsaw amounting
to P18,000.00. After spending 7 days at the hands of the captors, specifically on August 30, 2001, at about 1:00 oclock in the morning, while
they were asleep, he was able to escape and reached Barangay Bagyang, San Miguel. He was able to know the leader of the kidnappers
by the name of Kiking Salahay, alias Enrique Mendoza because they called him kumander. They were armed with a .45 caliber, two .38
caliber handguns and sharp bladed military knives.

Appellant in his brief assigns a single error, to wit;

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANT OF THE CRIME CHARGED.

In support of his sole assignment of error, appellant seeks exemption from criminal liability under Article 12, Paragraph 5 of the Revised
Penal Code which provides that any person who acts under the compulsion of an irresistible force is exempt from criminal liability. He cites
the following circumstances which would place him under the umbrella of this exemption:

1. He was forced to join the kidnappers because he was threatened with bodily harm and death.

2. He did not attempt to escape because the leader Kiking Salahay and his companions carried with them .45 and .38 caliber
firearms.

3. He was not allowed to leave the group because Salahay feared that the accused would report the matter to the police. [9]

The specific act which allegedly constitutes this irresistible force is the statement of Kiking Salahay that it would be better for the group
if they just killed appellant in response to his request to be allowed to go home. Appellant thus begged for his life and was left with no
choice but to stay with the group.[10]

As a result, appellant argues that he was reduced to a mere instrument. He did not act of his own volition and the fear of being killed
and the fact that his uncle Freddie Maca had moral ascendancy over him forced him to stay with the group. These circumstances,
therefore, he contends, exempt him from criminal liability. In support, appellant cites the ruling in People v. Del Rosario.[11]

The Solicitor Generals Recommendation

The Solicitor General filed a Manifestation and Motion (In Lieu of Brief), [12] recommending the acquittal of appellant on the ground
that the exacting proof of guilt beyond reasonable doubt was not met, thus:

xxx

13. The appeal is meritorious

14. Under the criminal justice system, the burden of proof lies with the prosecution. (Rule 115, Section 1, Revised Rules of Criminal
Procedure). That burden must be discharged on the strength of the prosecutions own evidence, without relying on the weakness of the
defense. Proof beyond reasonable doubt, or that quantum of proof sufficient to produce a moral certainty that would convince and satisfy
the conscience of those who are to act in judgment, is indispensable to overcome the constitutional presumption of innocence (People v.
Batocoy, G.R. Nos. 137458-59, prom. April 24, 2003).

15. Such proof is lacking in this case.

16. The prosecution merely offered in evidence the following documents:

1. A 4-page letter dated August 23, 2001 signed by Gerry Mag-isa, addressed to his wife. The letter contained a demand of
P150,000.00 ransom instead of P2M;

2. A 1-page letter dated August 23, 2001 signed by Gerry Mag-isa, This letter was addressed to Rose informing her that he was
a hostage and that the kidnappers were demanding a P2M ransom.

17. Sadly, the prosecution did not present testimonial evidence to prove the guilt of appellant of the crime charged. The evidence of the
prosecution does not measure up to the requisite moral certainty, notwithstanding the admission by the defense of the existence of the
four-page letter of the victim Gerry Mag-isa addressed to his wife (Exh. A). Furthermore, the admissions of appellant were not reduced into
writing and signed by him and his counsel in violation of Section 2, Rule 118 of the Revised Rules of Criminal Procedure. This means that the
admissions, assuming that these are incriminating, cannot be used against appellant.
18. Even as appellant testified that he was with the other accused, there is no evidence that he conspired with them to kidnap the victim,
detain him for more than three (3) days, and demand for ransom in exchange for his release.

19. In view of the abject failure of the prosecution to present witnesses to prove the guilt of appellant, his testimony, therefore, remains
undisturbed.

xxx

20. From [appellants] declaration, it appears that appellant had no idea of the kidnapping scheme because he was just invited by his
uncle to accompany him in collecting an obligation from a certain person. Likewise, significant are the acts of appellant in reporting the
incident to the authorities and turning himself in. These were not disputed by the prosecution.

21. Absent any overt act of appellant which would be construed as necessary or essential to the perpetration of the kidnapping for ransom
and serious illegal detention, mere presence at the locus criminis cannot by itself be a valid basis for conviction. Mere knowledge,
acquiescence to 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. Conspiracy transcends
companionship (People v. James Patano, et al., G.R. No. 129306, prom. March 14, 2003). Conspiracy must be proved as convincingly as the
criminal act itself, which may be deducted from the acts of appellant pointing to a joint purpose, concerted action and community of
interest (People v. Guittap, G.R. No. 144621, prom. May 9, 2003). It is hornbook doctrine that conspiracy must be proved by positive and
convincing evidence (People v. Patano, G.R. No. 129306, prom. March 14, 2003), the same quantum of evidence as the crime itself, that is,
by proof beyond reasonable doubt (People v. Caballero, G.R. Nos. 149028-30, prom. April 2, 2003; People v. Gregorio, G.R. No. 153781,
prom. September 24, 2003).

22. To be sure, the trial court could not rely on the affidavits not affirmed by the affiants court testimony. The admission of hearsay evidence
would be a violation of the constitutional provision that the accused shall enjoy the right to confront and cross-examine the witness
testifying against him (People v. Feliciano Ulit, G.R. Nos. 131799-801, prom. February 23, 2004).

23. Consequently, it was egregious error for the trial court to consider the joint affidavit of Arsenio Darasin, Ricardo Cabanbang and Joseph
Flores, as well as the affidavit of the victim. Affidavits of persons who are not presented to testify on the truth of the contents thereof are
hearsay evidence (Vallarta v. Court of Appeals, 163 SCRA 587 [1989]).

x x x.[13]

The Courts Decision

We have reviewed the entire records of this case and we fully agree with the position taken by the Solicitor General. As the Solicitor
General recognizes, we operate under a system that unshakeably puts the burden of proof on the prosecution.[14]

This burden has not been discharged, and was hardly even attempted to be discharged, by the prosecution in this case. It was
content to rely on the admissions made at the pre-trial hearing and the introduction and offer in evidence of the two letters allegedly
written by the victim to his wife.

The admissions at the pre-trial hearing, however, showed only that:

1. Gerry Mag-isa was kidnapped and detained for seven days;

2. appellant Esmer Montenegro was among the group at the mountains of Umalag where the victim was brought, which consisted of
Kiking Salahay, alias Enrique Mendoza, Freddie Maca, Badil Salahay, Mama Montenegro and Florie Montenegro;

3. the letters informed the victims wife of his kidnapping and detention and the amount demanded for his release;

The pre-trial admissions do not show that appellant participated in the kidnapping of Gerry Mag-isa.

The evidence on record of appellants participation is his own narration of how he found himself with the group without knowing that
a kidnapping had transpired and, in his defense, he insists that he stayed with the group because of the compulsion of an irresistible force
exerted on him when Kiking Salahay stated in reply to his request to be allowed to go home, that it would be better for all of them if they
just killed appellant.

If the prosecution had proved conspiracy as alleged in the information, these admissions would be relevant and material in
determining the guilt of appellant. However, no proof to this effect was presented. Hence, it cannot be determined what the specific role
of appellant was in the commission of the crime. No conspiracy having been proved, appellant cannot be convicted for a crime where his
participation is not established. As noted by the Solicitor General in his brief, absent any overt act of appellant which would be construed
as necessary or essential to the perpetration of the kidnapping for ransom and serious illegal detention, mere presence at the locus
criminis cannot by itself be a valid basis for conviction. Mere knowledge, acquiescence to 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.[15]
 The trial court utilized the affidavit of the victim Gerry Mag-isa as well as the joint affidavit of Arsenio L. Darasin, Ricardo P.
Cabangbang, Joseph C. Flores and Roy I. Tante to support its findings of appellants participation and culpability.

The record is bereft of any evidence to show that these affidavits were ever presented or offered as evidence for the prosecution, nor
were the persons who executed them ever presented to affirm what was in the affidavits nor to offer oral testimony on the circumstances
of the alleged kidnapping. Hence, they are of no value in the determination of the guilt of appellant. As we said in Osias v. Court of
Appeals,[16]allegations in an affidavit not testified upon in the trial are mere hearsay evidence and have no substantial evidential value.
In People v. Santos,[17] we ruled:

Indeed it appears that the only source of the above findings of fact of the trial court is Exhibit C, the sworn statement of Romeo Fernandez.
Since the affiant himself never took the stand during the trial, his sworn statement is absolutely inadmissible in evidence for being hearsay.
The admission of such hearsay evidence and the conviction of the accused on the basis thereof gravely violated their constitutional right
to meet their witnesses face to face and to subject them to the rigid test of cross-examination. As we said in an earlier case, the
constitutional right to confrontation precludes reliance on such affidavits. Such a constitutional safeguard cannot be satisfied unless the
opportunity is given the accused to test the credibility of any person, who, by affidavit or deposition would impute the commission of an
offense to him.

Furthermore, Section 34, Rule 132 of the Rules of Court specifically provides that the court shall consider no evidence which has not
been formally offered. The purpose for which the evidence is offered must be specified.

Again, we find nothing in the record that would show that these affidavits were offered in evidence.

Lastly, without going into the validity of appellants defense of having acted under the compulsion of an irresistible force, the fact
established by his own testimony which was not rebutted by the prosecution, was that he had no idea that a kidnapping had been
committed as he was just invited by his uncle to go with him to collect money from someone. When he tried to leave the group, he was
threatened with death. Nowhere in all the evidence of the prosecution does it show that appellant performed any overt act that would
implicate him as an accomplice or participant in the crime.

The trial court brushed away this defense as not sufficiently proved. It also refused to believe the testimonies of appellant and of the
Barangay Captain of Caromate, Felicula Gran, that he reported the incident after he was released, as mere afterthought. Yet what the
trial court failed to perceive was that the evidence for the prosecution was weak, if not nil. Consequently, the trial court, in an untenable
lapse of judgment, decided to consider only the alleged weaknesses of the defense to arrive at the conclusion that appellant is guilty and
not the strength or weaknesses of the prosecutions case. From our review of the records, we find that the prosecution in this case has utterly
failed in its duty to overcome by proof beyond reasonable doubt the presumption of innocence of appellant.

WHEREFORE, the decision of the Regional Trial Court of Tandag, Surigao del Sur, Branch 27, dated November 20, 2002, in Criminal Case
No. 4306, is REVERSED and SET ASIDE and appellant Esmer Montenegro is hereby ACQUITTED.

The National Bureau of Investigation is DIRECTED to assist in the arrest of the other accused in this case who are at large, for them to
undergo arraignment and trial. Let a copy of this Decision be furnished its Director.

No costs.

SO ORDERED.

G.R. No. L-29481 October 31, 1928

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
PAMBAYA BAYAMBAO, defendant-appellant.

Gullas, Misa, Gullas and Tuano for appellant.

Attorney-General Jaranilla for appellee.

ROMUALDEZ, J.:

Pambaya Bayambao was charged with the crime of murder, was found guilty thereof by the Court of First Instance of Lanao and
sentenced to twenty years' cadena temporal, the accessories of law, costs and to indemnify the heirs of the deceased in the sum of
P1,000.

He does not deny having caused the deceased's death. He alleges, however, that he did it by mistake, believing the deceased
malefactor who attacked him in the dark. He thus related the occurence:

A. While my wife was cooking she called out to me saying, "Pambaya, Pambaya, someone has thrown a stone at the house." So I
took my revolver and went down. Having gone under the house, I looked around, but did not see anybody; however, I did not go
far because I was alone. Then, while I was near the staircase, about to ascend, I heard a noise and saw a black figure that rushed
at me, with hands lifted up as if to strike me, and becoming frightened, I fired at it. 1awph!l.net
 Q. Why did you shoot him? — A. Because I thought he was an outlaw and he also thought that I was another outlaw, but found
out later that it was my brother-in-law.

Q. Why did you not shout before shooting? — A. I had no time because the man was already near, when I saw that black figure
with uplifted arms behind a pillar, and fearing he would attack me with his kampilan or dagger, I shot him before he would kill me.

Q. Why did you think that black figure was an outlaw? — A. Because my wife screamed that there were evildoers below, and in
our place ther are many outlaws, and those outlaws hate me because I help the Government to collect taxes. Some days before,
there was killing near my house, a soldier killing two outlaws.

Q. After you had fired at that black figure, what did you do? — A. After having fired, I waited a moment to see if he had other
outlaw companions, and I was prepared to go up and get my gun. As I did not see anybody else, I cried out, "Brother-in-law,
come down, Imo, bring a light." At that Imo and Morid came down with a light and we discovered that the person who was
moaning was my brother- in-law. Upon seeing him I ran towards him, embracing and kissing him, saying: "Forgive me, I thought
you were an outlaw," and he answered: "And I also thought you were an outlaw." (Pages 33-34, t.s.n.)

The wife of the victim gives another version of the occurrence. She testified that when the accused's wife informed him that someone had
thrown a stone at the house, the accused suggested that the deceased go down and see who was throwing stones at them; that the
deceased went down and told the accused that there was no one under the house; that thereupon the accused, telling him to wait there
for he was going to use his flashlight, went down carrying an automatic revolver in his right hand and a flashlight in the left; that, on coming
downstairs the accused asked the deceased if the hens there belonged to him, and the latter asked the accused to focus his light there in
order to gather all the hens together; that at this the accused shot the deceased, whose wife peered out of the door and saw her husband
with the accused focusing his flashlight on him and then firing at him again; that the deceased told Pambaya that he was wounded; that
the deceased's wife upbraided the accused telling him that he did wrong, and asked why he had shot the deceased; that the accused
turned upon her telling her to shut up or he would shoot her also.

Morid, widow of the deceased, is the only witness testifying to these facts. Her testimony is uncorroborated. The alleged ante-
mortem declaration contained in the document Exhibit B, is of doubtful authenticity, because, while the justice of the peace and the
witness Urunaga state that such statement was made by the deceased, Constabulary Lieutenant Cramer, who arrived at where the
deceased was a few moments before said justice of the peace positively states that the deceased could no longer speak. Consequently,
he could not very well have the alleged statement. Of Course, it appears that it was not the deceased who wrote it, but Urunaga, and
upon a typewriter. It does not appear that the deceased read it or that it was read to him, or that the deceased acknowledge it as his own
statement. This proof of identity is indispensible for the admissibility of such an ante-mortem declaration as evidence. (People vs. Dizon, 44
Phil., 267.) We cannot give any probatory value to document Exhibit B.

Alone and uncorroborated, therefore, stands the testimony of Morid, which, besides being incongruous in parts, is flatly and shoutly denied
by the accused and his wife. Considering the circumstances of the case, it is very improbable that, without a previous dispute or even an
exchange of words, the accused should suddenly and unexpectedly attack the deceased. The disagreement that, according to the
latter's widow, arose between the accused and the deceased ten days before the incident, has not been proven in the record, and it is
inconsistent with the conduct of the two during the subsequent days up to time of the incident, with both living peacefully and sleeping
together in the same house on the night in question, a few moments before the occurrence, according to the testimony of Morid herself.

On the other hand, the accused's narration seems natural. And as it is corroborated not only by his wife's testimony, but on some points by
that of Lieutenant Cramer and Sergeant Tumindog, to the effect that immediately after the occurrence the accused betook himself to the
commanding officer of the place in order to give an account of the incident, and to ask for prompt medical help for his unexpected
victim, it cannot but produce in the mind a conviction that what happened to the unfortunate Mangutara was an accident, without fault
or guilt on the part of the herein appellant.

The latter, on that occasion, acted from the impulse of an uncontrollable fear of an ill at least equal in gravity, in the belief that the
deceased was a malefactor who attacked him with a kampilan or dagger in hand, and for this reason, he was guilty of no crime and is
exempt from criminal liability (art. 8, No. 10, Penal Code.)

Furthermore, his ignorance or error of fact was not due to negligence or bad faith, and this rebuts the presumption of malicious, intent
accompanying the act of killing. In an case, this court acquitted the accused (U.S. vs. Ah Chong, 15 Phil., 488), and we deem the doctrine
laid down in that case applicable to this one.

The judgment appealed from is reversed and the appellant acquitted, with costs de officio, and the other pronouncements in his favor. So
ordered.

[G.R. No. 125299. January 22, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FLORENCIO DORIA y BOLADO, and VIOLETA GADDAO y CATAMA @ "NENETH," accused-
appellants.
 DECISION

PUNO, J.:

On December 7, 1995, accused-appellants Florencio Doria y Bolado and Violeta Gaddao y Catama @ "Neneth" were charged with
violation of Section 4, in relation to Section 21 of the Dangerous Drugs Act of 1972.[1] The information reads:

"That on or about the 5th day of December, 1995 in the City of Mandaluyong, Philippines, a place within the jurisdiction of this Honorable
Court, the above-named accused, conspiring, confederating and mutually helping and aiding one another and without having been
authorized by law, did, then and there willfully, unlawfully and feloniously sell, administer, deliver and give away to another eleven (11)
plastic bags of suspected marijuana fruiting tops weighing 7,641.08 grams in violation of the above-cited law.

CONTRARY TO LAW."[2]

The prosecution contends the offense was committed as follows: In November 1995, members of the North Metropolitan District,
Philippine National Police (PNP) Narcotics Command (Narcom), received information from two (2) civilian informants (CI) that one "Jun"
was engaged in illegal drug activities in Mandaluyong City. The Narcom agents decided to entrap and arrest "Jun" in a buy-bust operation.
As arranged by one of the CI's, a meeting between the Narcom agents and "Jun" was scheduled on December 5, 1995 at E. Jacinto Street
in Mandaluyong City.

On December 5, 1995, at 6:00 in the morning, the CI went to the PNP Headquarters at EDSA, Kamuning, Quezon City to prepare for
the buy-bust operation. The Narcom agents formed Team Alpha composed of P/Insp. Nolasco Cortes as team leader and PO3 Celso
Manlangit, SPO1 Edmund Badua and four (4) other policemen as members. P/Insp. Cortes designated PO3 Manlangit as the poseur-buyer
and SPO1 Badua as his back-up, and the rest of the team as perimeter security. Superintendent Pedro Alcantara, Chief of the North
Metropolitan District PNP Narcom, gave the team P2,000.00 to cover operational expenses. From this sum, PO3 Manlangit set
aside P1,600.00-- a one thousand peso bill and six (6) one hundred peso bills[3]-- as money for the buy-bust operation. The market price of
one kilo of marijuana was then P1,600.00. PO3 Manlangit marked the bills with his initials and listed their serial numbers in the police
blotter.[4] The team rode in two cars and headed for the target area.

At 7:20 of the same morning, "Jun" appeared and the CI introduced PO3 Manlangit as interested in buying one (1) kilo of marijuana.
PO3 Manlangit handed "Jun" the marked bills worth P1,600.00. "Jun" instructed PO3 Manlangit to wait for him at the corner of Shaw
Boulevard and Jacinto Street while he got the marijuana from his associate.[5] An hour later, "Jun" appeared at the agreed place where
PO3 Manlangit, the CI and the rest of the team were waiting. "Jun" took out from his bag an object wrapped in plastic and gave it to PO3
Manlangit. PO3 Manlangit forthwith arrested "Jun" as SPO1 Badua rushed to help in the arrest. They frisked "Jun" but did not find the marked
bills on him. Upon inquiry, "Jun" revealed that he left the money at the house of his associate named "Neneth."[6] "Jun" led the police team
to "Neneth's" house nearby at Daang Bakal.

The team found the door of "Neneth's" house open and a woman inside. "Jun" identified the woman as his associate.[7] SPO1 Badua
asked "Neneth" about the P1,600.00 as PO3 Manlangit looked over "Neneth's" house. Standing by the door, PO3 Manlangit noticed a
carton box under the dining table. He saw that one of the box's flaps was open and inside the box was something wrapped in plastic. The
plastic wrapper and its contents appeared similar to themarijuana earlier "sold" to him by "Jun." His suspicion aroused, PO3 Manlangit
entered "Neneth's" house and took hold of the box. He peeked inside the box and found that it contained ten (10) bricks of what
appeared to be dried marijuana leaves.

Simultaneous with the box's discovery, SPO1 Badua recovered the marked bills from "Neneth."[8] The policemen arrested "Neneth."
They took "Neneth" and "Jun," together with the box, its contents and the marked bills and turned them over to the investigator at
headquarters. It was only then that the police learned that "Jun" is Florencio Doria y Bolado while "Neneth" is Violeta Gaddao y Catama.
The one (1) brick of dried marijuana leaves recovered from "Jun" plus the ten (10) bricks recovered from "Neneth's" house were examined at
the PNP Crime Laboratory.[9] The bricks, eleven (11) in all, were found to be dried marijuana fruiting tops of various weights totalling 7,641.08
grams.[10]

The prosecution story was denied by accused-appellants Florencio Doria and Violeta Gaddao. Florencio Doria, a 33-year old
carpenter, testified that on December 5, 1995, at 7:00 in the morning, he was at the gate of his house reading a tabloid newspaper. Two
men appeared and asked him if he knew a certain "Totoy." There were many "Totoys" in their area and as the men questioning him were
strangers, accused-appellant denied knowing any "Totoy." The men took accused-appellant inside his house and accused him of being a
pusher in their community. When accused-appellant denied the charge, the men led him to their car outside and ordered him to point out
the house of "Totoy."For five (5) minutes, accused-appellant stayed in the car. Thereafter, he gave in and took them to "Totoy's" house.

Doria knocked on the door of "Totoy's" house but no one answered. One of the men, later identified as PO3 Manlangit, pushed open
the door and he and his companions entered and looked around the house for about three minutes. Accused-appellant Doria was left
standing at the door. The policemen came out of the house and they saw Violeta Gaddao carrying water from the well. He asked Violeta
where "Totoy" was but she replied he was not there.Curious onlookers and kibitzers were, by that time, surrounding them. When Violeta
entered her house, three men were already inside. Accused-appellant Doria, then still at the door, overheard one of the men say that they
found a carton box. Turning towards them, Doria saw a box on top of the table. The box was open and had something inside. PO3
Manlangit ordered him and Violeta to go outside the house and board the car. They were brought to police headquarters where they
were investigated.

Accused-appellant Doria further declared that his co-accused, Violeta Gaddao, is the wife of his acquaintance, Totoy Gaddao. He
said that he and Totoy Gaddao sometimes drank together at the neighborhood store. This closeness, however, did not extend to Violeta,
Totoy's wife.[11]

Accused-appellant Violeta Gaddao, a 35-year old rice vendor, claimed that on December 5, 1995, she was at her house at Daang
Bakal, Mandaluyong City where she lived with her husband and five (5) children, namely, Arvy, aged 10, Arjay, aged 8, the twins Raymond
and Raynan, aged 5, and Jason, aged 3. That day, accused-appellant woke up at 5:30 in the morning and bought pan de sal for her
children's breakfast. Her husband, Totoy, a housepainter, had left for Pangasinan five days earlier. She woke her children and bathed
them. Her eldest son, Arvy, left for school at 6:45 A.M. Ten minutes later, she carried her youngest son, Jayson, and accompanied Arjay to
school. She left the twins at home leaving the door open. After seeing Arjay off, she and Jayson remained standing in front of the school
soaking in the sun for about thirty minutes. Then they headed for home. Along the way, they passed the artesian well to fetch water. She
was pumping water when a man clad in short pants and denim jacket suddenly appeared and grabbed her left wrist. The man pulled her
and took her to her house. She found out later that the man was PO3 Manlangit.

Inside her house were her co-accused Doria and three (3) other persons. They asked her about a box on top of the table. This was the
first time she saw the box. The box was closed and tied with a piece of green straw. The men opened the box and showed her its
contents. She said she did not know anything about the box and its contents.

Accused-appellant Violeta Gaddao confirmed that her co-accused Florencio Doria was a friend of her husband, and that her
husband never returned to their house after he left for Pangasinan. She denied the charge against her and Doria and the allegation that
marked bills were found in her person.[12]

After trial, the Regional Trial Court, Branch 156, Pasig City convicted the accused-appellants. The trial court found the existence of an
"organized/syndicated crime group" and sentenced both accused-appellants to death and pay a fine of P500,000.00 each. The dispositive
portion of the decision reads as follows:

"WHEREFORE, the guilt of accused, FLORENCIO DORIA y BOLADO @ "Jun" and VIOLETA GADDAO y CATAMA @ "Neneth" having been
established beyond reasonable doubt, they are both CONVICTED of the present charge against them.

According to the amendatory provisions of Sec. 13 of Republic Act No. 7659 which cover violations of Sec. 4 of Republic Act No. 6425 and
which was exhaustively discussed in People v. Simon, 234 SCRA 555, the penalty imposable in this case is reclusion perpetua to death and a
fine ranging from five hundred thousand pesos to ten million pesos. Taking into consideration, however, the provisions of Sec. 23, also of
Republic Act No. 7659 which explicitly state that:

'The maximum penalty shall be imposed if the offense was committed by any person who belongs to an organized/syndicated crime
group.

An organized/syndicated crime group means a group of two or more persons collaborating, confederating or mutually helping one
another for purposes of gain in the commission of any crime.'

the Court is hereby constrained to sentence (hereby sentences) said FLORENCIO DORIA y BOLADO @ "Jun" and VIOLETA GADDAO y
CATAMA @ "Neneth" to DEATH and to pay a fine of Five Hundred Thousand Pesos (P500,000.00) each without subsidiary imprisonment in
case of insolvency and to pay the costs.

The confiscated marijuana bricks (7,641.08 grams) shall be turned over to the Dangerous Drugs Board, NBI for destruction in accordance
with law.

Let a Commitment Order be issued for the transfer of accused DORIA from the Mandaluyong City Jail to the New Bilibid Prisons, Muntinlupa
City and also for accused GADDAO for her transfer to the Correctional Institute for Women, Mandaluyong City.

Let the entire records of this case be forwarded immediately to the Supreme Court for mandatory review.

SO ORDERED."[13]

Before this Court, accused-appellant Doria assigns two errors, thus:

"I

THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT TO THE TESTIMONY OF THE WITNESSES FOR THE PROSECUTION WHEN THEIR TESTIMONIES
WERE SHOT WITH DISCREPANCIES, INCONSISTENCIES AND THAT THE CORPUS DELICTI OF THE MARIJUANA ALLEGEDLY TAKEN FROM APPELLANT
WAS NOT POSITIVELY IDENTIFIED BY THE POSEUR-BUYER.

II

THE COURT A QUO GRAVELY ERRED IN ADMITTING AS EVIDENCE THE MARIJUANA FRUITINGS FOUND INSIDE THE CARTON BOX AS THESE WERE
OBTAINED THROUGH A WARRANTLESS SEARCH AND DOES NOT COME WITHIN THE PLAIN VIEW DOCTRINE."[14]

Accused-appellant Violeta Gaddao contends:

"I

THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY DESPITE THE INCREDIBILITY OF THE POLICE VERSION OF THE MANNER THE ALLEGED
BUY-BUST AS CONDUCTED.
 II

THE PNP OFFICERS' VERSIONS AS TO WHERE THE BUY-BUST MONEY CAME FROM ARE INCONSISTENT WITH ONE ANOTHER AND ALSO REEKS WITH
INCREDIBILITY.

III

THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY AND SENTENCING HER TO DEATH DESPITE THE MANIFESTLY IRRECONCILABLE
INCONSISTENCIES IN THE VERSIONS OF THE POLICE AS TO HOW AND BY WHOM THE ALLEGED BUY-BUST MONEY WAS RECOVERED FROM HER,
WHICH IN CONSEQUENCE RESULTS IN THE EVIDENCE, OF RETRIEVAL FROM HER OF THE SAME, NEBULOUS, AT BEST, NIL, AT WORST.

IV

THE LOWER COURT ERRED IN UPHOLDING THE VALIDITY OF THE WARRANTLESS SEARCH LEADING TO THE SEIZURE OF THE MARIJUANA
ALLEGEDLY FOUND INSIDE THE HOUSE OF ACCUSED-APPELLANT."[15]

The assigned errors involve two principal issues: (1) the validity of the buy-bust operation in the apprehension of accused-appellant
Doria; and (2) the validity of the warrantless arrest of accused-appellant Gaddao, the search of her person and house, and the admissibility
of the pieces of evidence obtained therefrom.

Accused-appellants were caught by the police in a buy-bust operation. A buy-bust operation is a form of entrapment employed by
peace officers as an effective way of apprehending a criminal in the act of the commission of an offense.[16] Entrapment has received
judicial sanction when undertaken with due regard to constitutional and legal safeguards.[17]

Entrapment was unknown in common law. It is a judicially created twentieth-century American doctrine that evolved from the
increasing use of informers and undercover agents in the detection of crimes, particularly liquor and narcotics offenses. [18] Entrapment
sprouted from the doctrine of estoppel and the public interest in the formulation and application of decent standards in the enforcement
of criminal law.[19] It also took off from a spontaneous moral revulsion against using the powers of government to beguile innocent but
ductile persons into lapses that they might otherwise resist.[20]

In the American jurisdiction, the term "entrapment" has a generally negative meaning because it is understood as the inducement of
one to commit a crime not contemplated by him, for the mere purpose of instituting a criminal prosecution against him. [21] The classic
definition of entrapment is that articulated by Justice Roberts in Sorrells v. United States,[22] the first Supreme Court decision to acknowledge
the concept: "Entrapment is the conception and planning of an offense by an officer, and his procurement of its commission by one who
would not have perpetrated it except for the trickery, persuasion or fraud of the officer."[23] It consists of two (2) elements: (a) acts of
persuasion, trickery, or fraud carried out by law enforcement officers or the agents to induce a defendant to commit a crime; and (b) the
origin of the criminal design in the minds of the government officials rather than that of the innocent defendant, such that the crime is the
product of the creative activity of the law enforcement officer.[24]

It is recognized that in every arrest, there is a certain amount of entrapment used to outwit the persons violating or about to violate
the law. Not every deception is forbidden. The type of entrapment the law forbids is the inducing of another to violate the law, the
"seduction" of an otherwise innocent person into a criminal career.[25] Where the criminal intent originates in the mind of the entrapping
person and the accused is lured into the commission of the offense charged in order to prosecute him, there is entrapment and no
conviction may be had.[26] Where, however, the criminal intent originates in the mind of the accused and the criminal offense is
completed, the fact that a person acting as a decoy for the state, or public officials furnished the accused an opportunity for commission
of the offense, or that the accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute him,
there is no entrapment and the accused must be convicted.[27] The law tolerates the use of decoys and other artifices to catch a criminal.

Entrapment is recognized as a valid defense[28] that can be raised by an accused and partakes of the nature of a confession and
avoidance.[29] It is a positive defense. Initially, an accused has the burden of providing sufficient evidence that the government induced
him to commit the offense. Once established, the burden shifts to the government to show otherwise. [30] When entrapment is raised as a
defense, American federal courts and a majority of state courts use the "subjective" or "origin of intent" test laid down in Sorrells v. United
States[31] to determine whether entrapment actually occurred. The focus of the inquiry is on the accused's predisposition to commit the
offense charged, his state of mind and inclination before his initial exposure to government agents. [32] All relevant facts such as the
accused's mental and character traits, his past offenses, activities, his eagerness in committing the crime, his reputation, etc., are
considered to assess his state of mind before the crime.[33] The predisposition test emphasizes the accused's propensity to commit the
offense rather than the officer's misconduct[34] and reflects an attempt to draw a line between a "trap for the unwary innocent and the
trap for the unwary criminal."[35] If the accused was found to have been ready and willing to commit the offense at any favorable
opportunity, the entrapment defense will fail even if a police agent used an unduly persuasive inducement. [36] Some states, however, have
adopted the "objective" test.[37] This test was first authoritatively laid down in the case of Grossman v. State[38] rendered by the Supreme
Court of Alaska. Several other states have subsequently adopted the test by judicial pronouncement or legislation. Here, the court
considers the nature of the police activity involved and the propriety of police conduct.[39] The inquiry is focused on the inducements used
by government agents, on police conduct, not on the accused and his predisposition to commit the crime. For the goal of the defense is to
deter unlawful police conduct.[40] The test of entrapment is whether the conduct of the law enforcement agent was likely to induce a
normally law-abiding person, other than one who is ready and willing, to commit the offense;[41] for purposes of this test, it is presumed that
a law-abiding person would normally resist the temptation to commit a crime that is presented by the simple opportunity to act
unlawfully.[42] Official conduct that merely offers such an opportunity is permissible, but overbearing conduct, such as badgering, cajoling
or importuning,[43] or appeals to sentiments such as pity, sympathy, friendship or pleas of desperate illness, are not. [44] Proponents of this test
believe that courts must refuse to convict an entrapped accused not because his conduct falls outside the legal norm but rather because,
even if his guilt has been established, the methods employed on behalf of the government to bring about the crime "cannot be
countenanced." To some extent, this reflects the notion that the courts should not become tainted by condoning law enforcement
improprieties.[45] Hence, the transactions leading up to the offense, the interaction between the accused and law enforcement officer and
the accused's response to the officer's inducements, the gravity of the crime, and the difficulty of detecting instances of its commission are
considered in judging what the effect of the officer's conduct would be on a normal person.[46]

Both the "subjective" and "objective" approaches have been criticized and objected to. It is claimed that the "subjective" test creates
an "anything goes" rule, i.e., if the court determines that an accused was predisposed to commit the crime charged, no level of police
deceit, badgering or other unsavory practices will be deemed impermissible.[47] Delving into the accused's character and predisposition
obscures the more important task of judging police behavior and prejudices the accused more generally. It ignores the possibility that no
matter what his past crimes and general disposition were, the accused might not have committed the particular crime unless confronted
with inordinate inducements.[48] On the other extreme, the purely "objective" test eliminates entirely the need for considering a particular
accused's predisposition. His predisposition, at least if known by the police, may have an important bearing upon the question of whether
the conduct of the police and their agents was proper.[49] The undisputed fact that the accused was a dangerous and chronic offender or
that he was a shrewd and active member of a criminal syndicate at the time of his arrest is relegated to irrelevancy. [50]

Objections to the two tests gave birth to hybrid approaches to entrapment. Some states in the United States now combine both the
"subjective" and "objective" tests.[51] In Cruz v. State,[52] the Florida Supreme Court declared that the permissibility of police conduct must first
be determined. If this objective test is satisfied, then the analysis turns to whether the accused was predisposed to commit the
crime.[53] In Baca v. State,[54] the New Mexico Supreme Court modified the state's entrapment analysis by holding that "a criminal defendant
may successfully assert a defense of entrapment, either by showing lack of predisposition to commit the crime for which he is charged, or,
that the police exceeded the standards of proper investigation.[55] The hybrid approaches combine and apply the "objective" and
"subjective" tests alternatively or concurrently.

As early as 1910, this Court has examined the conduct of law enforcers while apprehending the accused caught in flagrante
delicto. In United States v. Phelps,[56] we acquitted the accused from the offense of smoking opium after finding that the government
employee, a BIR personnel, actually induced him to commit the crime in order to prosecute him. Smith, the BIR agent, testified that Phelps'
apprehension came after he overheard Phelps in a saloon say that he liked smoking opium on some occasions. Smith's testimony was
disregarded. We accorded significance to the fact that it was Smith who went to the accused three times to convince him to look for an
opium den where both of them could smoke this drug.[57] The conduct of the BIR agent was condemned as "most
reprehensible."[58] In People v. Abella,[59] we acquitted the accused of the crime of selling explosives after examining the testimony of the
apprehending police officer who pretended to be a merchant. The police officer offered "a tempting price, xxx a very high one" causing
the accused to sell the explosives. We found that there was inducement, "direct, persistent and effective" by the police officer and that
outside of his testimony, there was no evidence sufficient to convict the accused.[60] In People v. Lua Chu and Uy Se Tieng,[61] we convicted
the accused after finding that there was no inducement on the part of the law enforcement officer. We stated that the Customs secret
serviceman smoothed the way for the introduction of opium from Hongkong to Cebu after the accused had already planned its
importation and ordered said drug. We ruled that the apprehending officer did not induce the accused to import opium but merely
entrapped him by pretending to have an understanding with the Collector of Customs of Cebu to better assure the seizure of the
prohibited drug and the arrest of the surreptitious importers.[62]

It was also in the same case of People v. Lua Chu and Uy Se Tieng[63] we first laid down the distinction between entrapment vis-a-vis
instigation or inducement. Quoting 16 Corpus Juris,[64] we held:

"ENTRAPMENT AND INSTIGATION. -- While it has been said that the practice of entrapping persons into crime for the purpose of instituting
criminal prosecutions is to be deplored, and while instigation, as distinguished from mere entrapment, has often been condemned and has
sometimes been held to prevent the act from being criminal or punishable, the general rule is that it is no defense to the perpetrator of a
crime that facilities for its commission were purposely placed in his way, or that the criminal act was done at the 'decoy solicitation' of
persons seeking to expose the criminal, or that detectives feigning complicity in the act were present and apparently assisting in its
commission. Especially is this true in that class of cases where the offense is one of a kind habitually committed, and the solicitation merely
furnishes evidence of a course of conduct. Mere deception by the detective will not shield defendant, if the offense was committed by
him, free from the influence or instigation of the detective. The fact that an agent of an owner acts as a supposed confederate of a thief is
no defense to the latter in a prosecution for larceny, provided the original design was formed independently of such agent; and where a
person approached by the thief as his confederate notifies the owner or the public authorities, and, being authorised by them to do so,
assists the thief in carrying out the plan, the larceny is nevertheless committed. It is generally held that it is no defense to a prosecution for
an illegal sale of liquor that the purchase was made by a 'spotter,' detective, or hired informer; but there are cases holding the contrary."[65]

The distinction above-quoted was reiterated in two (2) decisions of the Court of Appeals. In People v. Galicia,[66] the appellate court
declared that "there is a wide difference between entrapment and instigation." The instigator practically induces the would-be accused
into the commission of the offense and himself becomes a co-principal. In entrapment, ways and means are resorted to by the peace
officer for the purpose of trapping and capturing the lawbreaker in the execution of his criminal plan. [67] In People v. Tan Tiong,[68] the Court
of Appeals further declared that "entrapment is no bar to the prosecution and conviction of the lawbreaker." [69]

The pronouncement of the Court of Appeals in People v. Galicia was affirmed by this Court in People v. Tiu Ua.[70] Entrapment, we
further held, is not contrary to public policy. It is instigation that is deemed contrary to public policy and illegal.[71]

It can thus be seen that the concept of entrapment in the American jurisdiction is similar to instigation or inducement in Philippine
jurisprudence. Entrapment in the Philippines is not a defense available to the accused. It is instigation that is a defense and is considered an
absolutory cause.[72] To determine whether there is entrapment or instigation, our courts have mainly examined the conduct of the
apprehending officers, not the predisposition of the accused to commit the crime. The "objective" test first applied in United States v.
Phelps has been followed in a series of similar cases.[73] Nevertheless, adopting the "objective" approach has not precluded us from likewise
applying the "subjective" test. In People v. Boholst,[74] we applied both tests by examining the conduct of the police officers in a buy-bust
operation and admitting evidence of the accused's membership with the notorious and dreaded Sigue-Sigue Sputnik Gang. We also
considered accused's previous convictions of other crimes[75] and held that his opprobrious past and membership with the dreaded gang
strengthened the state's evidence against him. Conversely, the evidence that the accused did not sell or smoke marijuana and did not
have any criminal record was likewise admitted in People v. Yutuc[76] thereby sustaining his defense that led to his acquittal.
 The distinction between entrapment and instigation has proven to be very material in anti-narcotics operations. In recent years, it has
become common practice for law enforcement officers and agents to engage in buy-bust operations and other entrapment procedures
in apprehending drug offenders. Anti-narcotics laws, like anti-gambling laws are regulatory statutes.[77] They are rules of convenience
designed to secure a more orderly regulation of the affairs of society, and their violation gives rise to crimes mala prohibita.[78] They are not
the traditional type of criminal law such as the law of murder, rape, theft, arson, etc. that deal with crimes mala in se or those inherently
wrongful and immoral.[79] Laws defining crimes mala prohibita condemn behavior directed, not against particular individuals, but against
public order.[80] Violation is deemed a wrong against society as a whole and is generally unattended with any particular harm to a definite
person.[81] These offenses are carried on in secret and the violators resort to many devices and subterfuges to avoid detection. It is rare for
any member of the public, no matter how furiously he condemns acts mala prohibita, to be willing to assist in the enforcement of the law. It
is necessary, therefore, that government in detecting and punishing violations of these laws, rely, not upon the voluntary action of
aggrieved individuals, but upon the diligence of its own officials. This means that the police must be present at the time the offenses are
committed either in an undercover capacity or through informants, spies or stool pigeons.[82]

Though considered essential by the police in enforcing vice legislation, the confidential informant system breeds abominable
abuse. Frequently, a person who accepts payment from the police in the apprehension of drug peddlers and gamblers also accept
payment from these persons who deceive the police. The informant himself may be a drug addict, pickpocket, pimp, or other petty
criminal. For whatever noble purpose it serves, the spectacle that government is secretly mated with the underworld and uses underworld
characters to help maintain law and order is not an inspiring one.[83] Equally odious is the bitter reality of dealing with unscrupulous, corrupt
and exploitative law enforcers.Like the informant, unscrupulous law enforcers' motivations are legion-- harassment, extortion, vengeance,
blackmail, or a desire to report an accomplishment to their superiors. This Court has taken judicial notice of this ugly reality in a number of
cases[84] where we observed that it is a common modus operandi of corrupt law enforcers to prey on weak and hapless persons,
particularly unsuspecting provincial hicks.[85] The use of shady underworld characters as informants, the relative ease with which illegal
drugs may be planted in the hands or property of trusting and ignorant persons, and the imposed secrecy that inevitably shrouds all drug
deals have compelled this Court to be extra-vigilant in deciding drug cases.[86] Criminal activity is such that stealth and strategy, although
necessary weapons in the arsenal of the police officer, become as objectionable police methods as the coerced confession and the
unlawful search. As well put by the Supreme Court of California in People v. Barraza,[87]

"[E]ntrapment is a facet of a broader problem. Along with illegal search and seizures, wiretapping, false arrest, illegal detention and the
third degree, it is a type of lawless enforcement. They all spring from common motivations. Each is a substitute for skillful and scientific
investigation. Each is condoned by the sinister sophism that the end, when dealing with known criminals of the 'criminal classes,' justifies the
employment of illegal means."[88]

It is thus imperative that the presumption, juris tantum, of regularity in the performance of official duty by law enforcement agents raised by
the Solicitor General be applied with studied restraint. This presumption should not by itself prevail over the presumption of innocence and
the constitutionally-protected rights of the individual.[89] It is the duty of courts to preserve the purity of their own temple from the prostitution
of the criminal law through lawless enforcement.[90] Courts should not allow themselves to be used as an instrument of abuse and injustice
lest an innocent person be made to suffer the unusually severe penalties for drug offenses.[91]

We therefore stress that the "objective" test in buy-bust operations demands that the details of the purported transaction must be
clearly and adequately shown. This must start from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the
promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale.[92] The
manner by which the initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of the
"buy-bust" money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be the subject of strict
scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense. Criminals must be caught but not at
all cost. At the same time, however, examining the conduct of the police should not disable courts into ignoring the accused's
predisposition to commit the crime. If there is overwhelming evidence of habitual delinquency, recidivism or plain criminal proclivity, then
this must also be considered. Courts should look at all factors to determine the predisposition of an accused to commit an offense in so far
as they are relevant to determine the validity of the defense of inducement.

In the case at bar, the evidence shows that it was the confidential informant who initially contacted accused-appellant Doria. At the
pre-arranged meeting, the informant was accompanied by PO3 Manlangit who posed as the buyer of marijuana. PO3 Manlangit handed
the marked money to accused-appellant Doria as advance payment for one (1) kilo of marijuana. Accused-appellant Doria was
apprehended when he later returned and handed the brick of marijuana to PO3 Manlangit.

PO3 Manlangit testified in a frank, spontaneous, straighforward and categorical manner and his credibility was not crumpled on
cross-examination by defense counsel. Moreover, PO3 Manlangit's testimony was corroborated on its material points by SPO1 Badua, his
back-up security. The non-presentation of the confidential informant is not fatal to the prosecution. Informants are usually not presented in
court because of the need to hide their identity and preserve their invaluable service to the police.[93] It is well-settled that except when the
appellant vehemently denies selling prohibited drugs and there are material inconsistencies in the testimonies of the arresting officers,[94] or
there are reasons to believe that the arresting officers had motives to testify falsely against the appellant, [95] or that only the informant was
the poseur-buyer who actually witnessed the entire transaction,[96] the testimony of the informant may be dispensed with as it will merely be
corroborative of the apprehending officers' eyewitness testimonies.[97] There is no need to present the informant in court where the sale was
actually witnessed and adequately proved by prosecution witnesses.[98]

The inconsistencies in PO3 Manlangit's and SPO1 Badua's testimonies and the other police officers' testimonies are minor and do not
detract from the veracity and weight of the prosecution evidence. The source of the money for the buy-bust operation is not a critical fact
in the case at bar. It is enough that the prosecution proved that money was paid to accused-appellant Doria in consideration of which he
sold and delivered the marijuana.

Contrary to accused-appellant Doria's claim, the one kilo of marijuana "sold" by him to PO3 Manlangit was actually identified by PO3
Manlangit himself before the trial court. After appellants' apprehension, the Narcom agents placed this one (1) brick of marijuana
recovered from appellant Doria inside the carton box lumping it together with the ten (10) bricks inside. This is why the carton box
contained eleven (11) bricks of marijuana when brought before the trial court. The one (1) brick recovered from appellant Doria and each
of the ten (10) bricks, however, were identified and marked in court. Thus:
 "ATTY. ARIAS, Counsel for Florencio Doria:

Mr. Police Officer, when you identified that box,. Tell the court, how were you able to identify that box?

A This is the box that I brought to the crime laboratory which contained the eleven pieces of marijuana brick we confiscated from the
suspect, sir.

Q Please open it and show those eleven bricks.

PROSECUTOR Witness bringing out from the said box...

ATTY. VALDEZ, Counsel for Violeta Gaddao:

Your Honor, I must protest the line of questioning considering the fact that we are now dealing with eleven items when the
question posed to the witness was what was handed to him by Jun?

COURT So be it.

ATTY. ARIAS May we make it of record that the witness is pulling out item after item from the box showed to him and brought in front of
him.

COURT Noted.

Q Now tell the court, how did you know that those are the eleven bricks?

x x x.

A I have markings on these eleven bricks, sir.

Q Point to the court, where are those markings?

A Here, sir, my signature, my initials with the date, sir.

PROSECUTOR Witness showed a white wrapper and pointing to CLM and the signature.

Q Whose signature is that?

ATTY VALDEZ Your Honor, may we just limit the inquiry to the basic question of the fiscal as to what was handed to him by the accused
Jun, your Honor?

PROSECUTOR Your Honor, there is already a ruling by this Honorable Court, your Honor, despite reconsideration.

COURT Let the prosecution do its own thing and leave the appreciation of what it has done to the court.

ATTY. VALDEZ We submit, your Honor.

A This brick is the one that was handed to me by the suspect Jun, sir.

COURT Why do you know that that is the thing? Are you sure that is not "tikoy?"

A Yes, your Honor.

Q What makes you so sure?

A I am sure that this is the one, your Honor. This is the Exhibit "A" which I marked before I brought it to the PCCL, your Honor.

Q What are you sure of?

A I am sure that this is the brick that was given to me by one alias Jun, sir.

Q What makes you so sure?

A Because I marked it with my own initials before giving it to the investigator and before we brought it to the PCCL, your Honor.

x x x.

PROSECUTOR May we request that a tag be placed on this white plastic bag and this be marked as Exhibit "D?"

COURT Mark it as Exhibit "D."

Q To stress, who made the entries of this date, Exhibit "A" then the other letters and figures on this plastic?

A This one, the signature, I made the signature, the date and the time and this Exhibit "A."

Q How about this one?

A I don't know who made this marking, sir.

PROSECUTOR May it be of record that this was just entered this morning.

Q I am asking you about this "itim" and not the "asul."

A This CLM, the date and the time and the Exhibit "A," I was the one who made these markings, sir.
 PROSECUTOR May we place on record that the one that was enclosed...

ATTY. ARIAS Your Honor, there are also entries included in that enclosure where it appears D-394-95, also Exhibit "A," etc. etc., that was
not pointed to by the witness. I want to make it of record that there are other entries included in the enclosure.

COURT Noted. The court saw it.

Q Now, and this alleged brick of marijuana with a piece of paper, with a newspaper wrapping with a piece of paper inside which
reads: "D-394-95, Exhibit A, 970 grams SSL" be marked as our Exhibit "D-2?"

COURT Tag it. Mark it.

Q This particular exhibit that you identified, the wrapper and the contents was given to you by whom?

A It was given to me by suspect Jun, sir.

Q Whereat?

A At the corner of Boulevard and Jacinto St., sir.

Q How about the other items that you were able to recover?

x x x.

A These other marijuana bricks, because during our follow-up, because according to Jun the money which I gave him was in the hands
of Neneth and so we proceeded to the house of Neneth, sir.

x x x."[99]

The first brick identified by P03 Manlangit was the brick of marijuana "given to [him] by suspect Jun" at the corner of Boulevard and Jacinto
Streets. This brick, including the newspaper and white plastic wrapping were marked as Exhibits "D," "D-1," and "D-2" and described as
weighing nine hundred seventy (970) grams.[100]

We also reject appellant's submission that the fact that PO3 Manlangit and his team waited for almost one hour for appellant Doria to
give them the one kilo of marijuana after he "paid" P1,600.00 strains credulity. Appellant cannot capitalize on the circumstance that the
money and the marijuana in the case at bar did not change hands under the usual "kaliwaan" system. There is no rule of law which requires
that in "buy-bust" operations there must be a simultaneous exchange of the marked money and the prohibited drug between the poseur-
buyer and the pusher.[101] Again, the decisive fact is that the poseur-buyer received the marijuana from the accused-appellant.[102]

We also hold that the warrantless arrest of accused-appellant Doria is not unlawful. Warrantless arrests are allowed in three instances
as provided by Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure, to wit:

"Sec. 5. Arrest without warrant; when lawful. -- A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an
offense;

(b) 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; and

(c) When the person to be arrested is a prisoner who escaped from a penal establishment or place where he is serving final
judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to
another.

x x x."[103]

Under Section 5 (a), as above-quoted, a person may be arrested without a warrant if he "has committed, is actually committing, or is
attempting to commit an offense." Appellant Doria was caught in the act of committing an offense. When an accused is apprehended in
flagrante delicto as a result of a buy-bust operation, the police are not only authorized but duty-bound to arrest him even without a
warrant.[104]

The warrantless arrest of appellant Gaddao, the search of her person and residence, and the seizure of the box of marijuana and
marked bills are different matters.

Our Constitution proscribes search and seizure without a judicial warrant and any evidence obtained without such warrant is
inadmissible for any purpose in any proceeding.[105] The rule is, however, not absolute. Search and seizure may be made without a warrant
and the evidence obtained therefrom may be admissible in the following instances:[106] (1) search incident to a lawful arrest;[107] (2) search
of a moving motor vehicle;[108] (3) search in violation of customs laws;[109] (4) seizure of evidence in plain view;[110] (5) when the accused
himself waives his right against unreasonable searches and seizures.[111]

The prosecution admits that appellant Gaddao was arrested without a warrant of arrest and the search and seizure of the box of
marijuana and the marked bills were likewise made without a search warrant. It is claimed, however, that the warrants were not necessary
because the arrest was made in "hot pursuit" and the search was an incident to her lawful arrest.

To be lawful, the warrantless arrest of appellant Gaddao must fall under any of the three (3) instances enumerated in Section 5 of
Rule 113 of the 1985 Rules on Criminal Procedure as aforequoted. The direct testimony of PO3 Manlangit, the arresting officer, however
shows otherwise:
 "ATTY VALDEZ, Counsel for appellant Gaddao:

We submit at this juncture, your Honor, that there will be no basis for that question.

Q This particular exhibit that you identified, the wrapper and the contents was given to you by whom?

A It was given to me by suspect Jun, sir.

Q Whereat?

A At the corner of Boulevard and Jacinto Street, sir.

Q How about the other items that you were able to recover?

ATTY. VALDEZ: We submit at this juncture, your Honor, that there will be no basis for that question.

COURT There is. Answer.

A These other marijuana bricks, because during our follow-up, because according to Jun the money which I gave him was in the hands
of Neneth and so we proceeded to the house of Neneth, sir.

Q Whereat?

A At Daang Bakal near the crime scene at Shaw Boulevard, sir.

Q And what happened upon arrival thereat?

A We saw alias Neneth inside the house and we asked him to give us the buy-bust money, sir.

Q You mentioned "him?"

A Her, sir. We asked her to give us the money, the marked money which Jun gave her, sir.

Q And what happened?

A At this instance, it was SPO1 Badua who can testify regarding this buy-bust money, sir.

x x x."[112]

SPO1 Badua testified on cross-examination that:

Q What was your intention in going to the house of Aling Neneth?

A To arrest her, sir.

Q But the fact is, Mr. Witness, when you reached the house of Aling Neneth, Aling Neneth was there?

A Yes, sir.

Q As far as you can see, she was just inside her house?

A I saw her outside, sir.

Q She was fetching water as a matter of fact?

A She was `sa bandang poso.'

Q Carrying a baby?

A No, sir.

Q At that particular time when you reached the house of Aling Neneth and saw her outside the house, she was not committing any
crime, she was just outside the house?

A No, sir.

Q She was not about to commit any crime because she was just outside the house doing her daily chores. Am I correct?

A I just saw her outside, sir.

Q And at that point in time you already wanted to arrest her. That is correct, is it not?

A Yes, sir.

Q Now, if any memory of your testimony is correct, according to you SPO1 Manlangit approached her?

A PO3 Manlangit, sir.

Q You did not approach her because PO3 Manlangit approached her?

A Yes, sir.

Q During all the time that this confrontation, arrest or whatever by SPO3 Manlangit was taking place, you were just in the side lines?
 A I was just watching, sir.

Q So you were just an on-looker to what Manlangit was doing, because precisely according to you your role in this buy-bust operation
was as a back-up?

A Yes, sir.

Q Who got the alleged marijuana from inside the house of Mrs. Neneth?

A PO3 Manlangit, sir.

Q Manlangit got the marijuana?

A Yes, sir.

Q And the money from Aling Neneth?

A I don't know, sir.

Q You did not even know who got the money from Aling Neneth?

PROSECUTOR:

There is no basis for this question, your Honor. Money, there's no testimony on that.

ATTY. VALDEZ:

I was asking him precisely.

PROSECUTOR:

No basis.

COURT:

Sustained.

Q Alright. I will ask you a question and I expect an honest answer. According to the records, the amount of P1,600.00 was recovered
from the person of Aling Neneth. That's right?

A Yes, sir, the buy-bust money.

Q What you are now saying for certain and for the record is the fact that you were not the one who retrieved the money from Aling
Neneth, it was Manlangit maybe?

A I saw it, sir.

Q It was Manlangit who got the money from Aling Neneth?

A The buy-bust money was recovered from the house of Aling Neneth, sir.

Q It was taken from the house of Aling Neneth, not from the person of Aling Neneth. Is that what you are trying to tell the Court?

A No, sir.

ATTY. VALDEZ: I am through with this witness, your Honor."[113]

Accused-appellant Gaddao was not caught red-handed during the buy-bust operation to give ground for her arrest under Section 5
(a) of Rule 113. She was not committing any crime. Contrary to the finding of the trial court, there was no occasion at all for appellant
Gaddao to flee from the policemen to justify her arrest in "hot pursuit." [114] In fact, she was going about her daily chores when the
policemen pounced on her.

Neither could the arrest of appellant Gaddao be justified under the second instance of Rule 113. "Personal knowledge" of facts in
arrests without warrant under Section 5 (b) of Rule 113 must be based upon "probable cause" which means an "actual belief or reasonable
grounds of suspicion."[115] The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the
suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by
circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. [116] A reasonable
suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest.[117]

Accused-appellant Gaddao was arrested solely on the basis of the alleged identification made by her co-accused. PO3 Manlangit,
however, declared in his direct examination that appellant Doria named his co-accused in response to his (PO3 Manlangit's) query as to
where the marked money was.[118] Appellant Doria did not point to appellant Gaddao as his associate in the drug business, but as the
person with whom he left the marked bills. This identification does not necessarily lead to the conclusion that appellant Gaddao conspired
with her co-accused in pushing drugs. Appellant Doria may have left the money in her house,[119] with or without her knowledge, with or
without any conspiracy. Save for accused-appellant Doria's word, the Narcom agents had no reasonable grounds to believe that she was
engaged in drug pushing. If there is no showing that the person who effected the warrantless arrest had, in his own right, knowledge of
facts implicating the person arrested to the perpetration of a criminal offense, the arrest is legally objectionable.[120]

Since the warrantless arrest of accused-appellant Gaddao was illegal, it follows that the search of her person and home and the
subsequent seizure of the marked bills and marijuana cannot be deemed legal as an incident to her arrest. This brings us to the question of
whether the trial court correctly found that the box of marijuana was in plain view, making its warrantless seizure valid.
 Objects falling in plain view of an officer who has a right to be in the position to have that view are subject to seizure even without a
search warrant and may be introduced in evidence.[121] The "plain view" doctrine applies when the following requisites concur: (a) the law
enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular
area; (b) the discovery of the evidence in plain view is inadvertent; (c) it is immediately apparent to the officer that the item he observes
may be evidence of a crime, contraband or otherwise subject to seizure.[122] The law enforcement officer must lawfully make an initial
intrusion or properly be in a position from which he can particularly view the area. [123] In the course of such lawful intrusion, he came
inadvertently across a piece of evidence incriminating the accused.[124] The object must be open to eye and hand[125] and its discovery
inadvertent.[126]

It is clear that an object is in plain view if the object itself is plainly exposed to sight. The difficulty arises when the object is inside a
closed container. Where the object seized was inside a closed package, the object itself is not in plain view and therefore cannot be
seized without a warrant. However, if the package proclaims its contents, whether by its distinctive configuration, its transparency, or if its
contents are obvious to an observer, then the contents are in plain view and may be seized. [127] In other words, if the package is such that
an experienced observer could infer from its appearance that it contains the prohibited article, then the article is deemed in plain
view.[128] It must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband or
otherwise subject to seizure.[129]

PO3 Manlangit, the Narcom agent who found the box, testified on cross-examination as follows:

"ATTY. VALDEZ:

So here we are. When you and Badua arrived, Aling Neneth was inside the house?

A Yes, sir.

Q Badua demanded from Aling Neneth the buy-bust money?

A Yes, sir.

Q At that particular instance, you saw the carton?

A Yes, sir.

Q This carton, according to you was under a table?

A Yes, sir, dining table.

Q I noticed that this carton has a cover?

A Yes, sir.

Q I ask you were the flaps of the cover raised or closed?

A It was open, sir. Not like that.

COURT

Go down there. Show to the court.

INTERPRETER

Witness went down the witness stand and approached a carton box.

A Like this, sir.

PROSECUTOR

Can we describe it?

ATTY. VALDEZ

Yes.

PROSECUTOR

One flap is inside and the other flap is standing and with the contents visible.

COURT

Noted.

Q At this juncture, you went inside the house?

A Yes, sir.

Q And got hold of this carton?

A Yes, sir.

Q Did you mention anything to Aling Neneth?

A I asked her, what's this...

Q No, no. no. did you mention anything to Aling Neneth before getting the carton?

A I think it was Badua who accosted Aling Neneth regarding the buy-bust money and he asked "Sa iyo galing ang marijuanang ito,
nasaan ang buy-bust money namin?" sir.

Q Making reference to the marijuana that was given by alias Jun?

A Yes, sir.

Q When you proceeded to take hold of this carton, Aling Neneth was not yet frisked, is it not [sic]?

A I just don't know if she was frisked already by Badua, sir.

Q Who got hold of this?

A I was the one, sir.

Q You were the one who got this?

A Yes, sir.

Q At that particular point in time, you did not know if the alleged buy-bust money was already retrieved by Badua?

A Yes, sir.

Q You went inside the house?

A Yes, sir.

Q You did not have any search warrant?

A Yes, sir.

Q In fact, there was nothing yet as far as you were concerned to validate the fact that Mrs. Gadao was in possession of the buy-bust
money because according to you, you did not know whether Badua already retrieved the buy-bust money from her?

A Yes, sir.

Q How far was this from the door?

A Two and a half meters from the door, sir. It was in plain view.

Q Under the table according to you?

A Yes, sir, dining table.

Q Somewhere here?

A It's far, sir.

PROSECUTOR

May we request the witness to place it, where he saw it?

A Here, sir.

Q What you see is a carton?

A Yes, sir, with plastic.

Q Marked "Snow Time Ice Pop?"

A Yes, sir.

Q With a piece of plastic visible on top of the carton?

A Yes, sir.

Q That is all that you saw?

A Yes, sir.

PROSECUTOR

For the record, your Honor...

Q You were only able to verify according to you...

PROSECUTOR

Panero, wait. Because I am objecting to the words a piece of plastic. By reading it...

ATTY. VALDEZ
 That's a piece of plastic.

PROSECUTOR

By reading it, it will connote... this is not a piece of plastic.

ATTY. VALDEZ

What is that? What can you say, Fiscal? I'm asking you?

PROSECUTOR

With due respect, what I am saying is, let's place the size of the plastic. A piece of plastic may be big or a small one, for record
purposes.

COURT

Leave that to the court.

PROSECUTOR

Leave that to the court.

Q The only reason according to you, you were able to... Look at this, no even Superman... I withdraw that. Not even a man with very kin
[sic] eyes can tell the contents here. And according to the Court, it could be "tikoy," is it not [sic]?

A Yes, sir.

Q Siopao?

A Yes, sir.

Q Canned goods?

A Yes, sir.

Q It could be ice cream because it says Snow Pop, Ice Pop?

A I presumed it was also marijuana because it may ...

Q I am not asking you what your presumptions are. I'm asking you what it could possibly be.

A It's the same plastic, sir.

ATTY. VALDEZ

I'm not even asking you that question so why are you voluntarily saying the information. Let the prosecutor do that for you.

COURT

Continue. Next question.

x x x."[130]

PO3 Manlangit and the police team were at appellant Gaddao's house because they were led there by appellant Doria. The Narcom
agents testified that they had no information on appellant Gaddao until appellant Doria named her and led them to her. [131] Standing by
the door of appellant Gaddao's house, PO3 Manlangit had a view of the interior of said house. Two and a half meters away was the dining
table and underneath it was a carton box. The box was partially open and revealed something wrapped in plastic.

In his direct examination, PO3 Manlangit said that he was sure that the contents of the box were marijuana because he himself
checked and marked the said contents.[132] On cross-examination, however, he admitted that he merely presumed the contents to be
marijuana because it had the same plastic wrapping as the "buy-bust marijuana." A close scrutiny of the records reveals that the plastic
wrapper was not colorless and transparent as to clearly manifest its contents to a viewer. Each of the ten (10) bricks of marijuana in the box
was individually wrapped in old newspaper and placed inside plastic bags-- white, pink or blue in color.[133] PO3 Manlangit himself
admitted on cross-examination that the contents of the box could be items other than marijuana. He did not know exactly what the box
contained that he had to ask appellant Gaddao about its contents.[134] It was not immediately apparent to PO3 Manlangit that the content
of the box was marijuana. The marijuana was not in plain view and its seizure without the requisite search warrant was in violation of the law
and the Constitution.[135] It was fruit of the poisonous tree and should have been excluded and never considered by the trial court.[136]

The fact that the box containing about six (6) kilos of marijuana [137] was found in the house of accused-appellant Gaddao does not
justify a finding that she herself is guilty of the crime charged.[138] Apropos is our ruling in People v. Aminnudin,[139] viz:

"The Court strongly supports the campaign of the government against drug addiction and commends the efforts of our law enforcement
officers against those who would inflict this malediction upon our people, especially the susceptible youth. But as demanding as this
campaign may be, it cannot be more so than the compulsions of the Bill of Rights for the protection of the liberty of every individual in the
realm, including the basest of criminals. The Constitution covers with the mantle of its protection the innocent and the guilty alike against
any manner of high-handedness from the authorities, however praiseworthy their intentions.
Those who are supposed to enforce the law are not justified in disregarding the right of the individual in the name of order. Order is too high
a price for the loss of liberty. As Justice Holmes, again, said, 'I think it a less evil that some criminals should escape than that the government
should play an ignoble part.' It is simply not allowed in the free society to violate a law to enforce another, especially if the law violated is
the Constitution itself."[140]

Section 4 of Republic Act No. 6425, the Dangerous Drugs Act of 1972, as amended by Section 13 of Republic Act No. 7659 punishes
the "sale, administration, delivery, distribution and transportation of a prohibited drug" with the penalty of reclusion perpetua to death and
a fine ranging from P500,000.00 to P10 million, to wit:

"Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs.-- The penalty of reclusion perpetua to death, and
a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall
sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of
such transactions.

x x x."

In every prosecution for illegal sale of dangerous drugs, what is material is the submission of proof that the sale took place between the
poseur-buyer and the seller thereof and the presentation of the drug, i.e., the corpus delicti, as evidence in court.[141] The prosecution has
clearly established the fact that in consideration of P1,600.00 which he received, accused-appellant Doria sold and delivered nine
hundred seventy (970) grams of marijuana to PO3 Manlangit, the poseur-buyer. The prosecution, however, has failed to prove that
accused-appellant Gaddao conspired with accused-appellant Doria in the sale of said drug. There being no mitigating or aggravating
circumstances, the lower penalty of reclusion perpetua must be imposed.[142]

IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch 156, Pasig City acting as a Special Court in Criminal Case No. 3307-
D is reversed and modified as follows:

1. Accused-appellant Florencio Doria y Bolado is sentenced to suffer the penalty of reclusion perpetua and to pay a fine of five
hundred thousand pesos (P500,000.00).

2. Accused-appellant Violeta Gaddao y Catama is acquitted.

SO ORDERED.

G.R. No. 111484 June 2, 1995

MARIANO DE LUNA Y ROLDAN, petitionier,

vs.
THE HON. COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondent.

VITUG, J.:

Petitioner, Mariano De Luna y Roldan received a verdict of guilt from the Regional Trial Court, later sustained by the Court of Appeals, for
the killing of Demetrio Rodelas. The trial court1 imposed upon De Luna the indeterminate penalty of "FOUR (4) YEARS, TWO (2) MONTHS . . .
to EIGHT (8) YEARS and ONE (1) DAY (prision correctional medium to prision mayor
minimum)"2 after appreciating in his favor the privileged mitigating circumstance of incomplete self-defense. The appellate
court3 disagreed on the range of the penalty, holding that De Luna was not entitled to the privileged mitigating circumstance; hence, it
decreed-an indeterminate sentence of "SIX (6) years and ONE (1) day of prision mayor, as minimum, to SEVENTEEN (17) years and FOUR (4)
months of reclusion temporal as maximum."4

Contesting both his conviction and the sentence pronounced by the appellate court, De Luna has come to us via this petition for review
on certiorari.

De Luna was accused of, and charged with, the crime of murder for the death, on 12 April 1982, of Demetrio Rodelas at Barangay Hupi,
Municipality of Sta. Cruz, Marinduque. When arraigned, on 15 March 1985, De Luna pleaded "not guilty."

The appellate court summarized the evidence adduced by the prosecution and the defense thusly:

The prosecution evidence consisted mainly of the testimonies of Sergio Tagbago and Dr. Thelma Principe. Tagbago's
testimony is as follows:

At 7:00 o'clock in the evening of April 12, 1982, while the witness Sergio Tagbago was in the balcony of his house at
Barangay Hupi, Sta. Cruz, Marinduque, relaxing with his wife and daughter, who were playing sungka, Demetrio Rodelas
arrived for a chat. (Rodelas was the son-in-law of Nemesio Piramide, who is Tagbago's brother-in-law. Nemesio Piramide
is the brother of Tagbago's wife Estrella.) In a moment, they heard someone calling out, "Hudas, lumabas ka diyan,
ninakaw mo ang manok ko" ("Judas, come out and fight. You stole my gamecock"). The one who shouted was about 70
meters away. Sergio recognized him to be Mariano de Luna. Afterward Demetrio Rodelas decided to go home and
bade goodbye to Sergio and his family. (TSN, pp. 2-7, April 24, 1984; Id., pp. 8-16, Nov. 7, 1984) But as he was about to
 step out of the gate, Demetrio was met by accused Mariano de Luna who stabbed him (Demetrio) on the upper left
side of the right thigh with a bladed weapon. At that moment, Demetrio was lifting his right leg over a foot-high hurdle
(tarangkahan) at the gate. Demetrio managed to take a few steps backward and then fell on the ground by the wall.
His assailant fled immediately. (TSN, pp. 8-11, April 24, 1984; Id., p. 18, Nov. 7, 1984; Id., pp. 2-11, Mar. 7, 1985; Id., pp. 2-7,
July 25, 1985).

Demetrio was taken to the Sta. Cruz Hospital where he was treated by the resident Physician, Dr. Thelma Principe. He
died at around 10:30 o'clock of the same night. According to the medical certificate of Dr. Principe, Demetrio Rodela
suffered the following wounds:

1. Stab Wound 1 1/2 inches long x 1/4 wide x 2 1/2 inches deep directed upwards severing the subcutaneous tissues,
muscles, and femoral vein active bleeding.

2. Contusion with Hematoma 1 1/2 inches in diameter associated with severe pain and tenderness.

The following day Sergio Tagbago reported the incident to the police.

The next witness of the prosecution was Dr. Thelma Principe who testified that the contusions on the back of the victim
must have been caused by the fall while the stab wound on the left thigh must have been inflicted while his-legs were
apart. (Annex 1-A and 1-B)

Mariano De Luna denied the accusation against him. He claimed that on April 12, 1982, at around 8:30 in the evening,
while he was passing by the house of Sergio Tagbago, on his way to work at the Marcopper Mining, he heard someone
say, "Nariyan na" ("Here he comes") and then he was hit, on the side. He saw Demetrio Rodelas with a bladed weapon in
his right hand who confronted him, "Mariano, talagang papatayin ka namin." ("Mariano, we are really going to kill you!")
According to the accused-appellant, Demetrio tried to stab him but he was able to parry the blow. They then grappled
for possession of the weapon. While they were fighting, Andres Rodelas struck him with a piece of wood, hiding him on
the left knee. He claimed that he fell but that he was able to wrest the weapon from Demetrio. The accused did not say
how Demetrio was wounded. instead, he said, Demetrio ran towards the house of Tagbago. (TSN, pp. 4-17, May 28,
1987; Id., pp. 4-10, Jan. 28, 1988).

The accused said he ran home and told his wife about the incident. Later, a policeman arrived and took him to the
station for questioning. Accussed-appellant turned over the fatal weapon to the police but refused to give any
statement. He was later taken to the Sta. Cruz Hospital where he was treated by Dr. Principe. (TSN, pp. 18-22, May 28,
1987; Id., pp. 3-6, Oct. 7, 1987; Id., pp. 11-13, Jan. 28, 1988) He claimed that he wanted to file charges against Andres
Rodelas but was told that since it had been three months since the incident occurred, the crime had already
prescribed. (TSN, pp. 14-16, Jan. 28, 1988)

Mariano de Luna said that Demetrio Rodelas had a grudge against him because the year before, in 1981, he (De Luna)
had filed charges against Demetrio for the destruction of his two gamecocks and for attempting to hit him and burn his
house. Rodelas filed a counter charge against him for wounding him on the left side of the head. According to De Luna,
although the cases were settled and dismissed, Demetrio told others that he would someday take revenge. (TSN pp. 4-9,
July 21, 1988)

The defense also presented Dr. Thelma Principe, the resident physician on duty at the Sta. Cruz Hospital on April 12, 1982.
Her testimony is summarized on the following portion of the decision of the trial court.

[O]n April 12, 1982 she was on duty at around 9:30 when patient Mariano De Luna arrived; and found on him — (1)
abrasion with contusion, 1/2 inch in diameter superficial anterior chest wall; (2) contusion with pain located at the left
lateral aspect of the left knee caused by the use of a blunt instrument. They cleaned them and applied dressing and
antiseptic by I.M.; 2 oral medicines, one antibiotic and one, anti-inflammatory. She identified Exh. 2 marked by the court
as Exh. X and X-l with the explanation that the two medical certificates were issued for purposes of sick leave to be filed
with Marcopper.

She explained that Exh. 2 was prepared by the nursing attendant and then by herself. The findings on the document
were her handwriting including the date "4-12-82", the date of issuance was an error — pointing to Exh. 2-A. Clarifying the
notation in Exh. 2 and Exh. 2-A where it stated that Mariano De Luna was treated from April 19, 1982 to April 26, 1982 —
she stated the medical certificate was issued only for the purposes of sick leave. The second one — April 27 to 30 was
because the patient Mariano de Luna extended his leave as he was still recuperating from his injuries. The writing of the
dates "April 19 to 26" is only for the purpose of securing sick leave.5

The Regional Trial Court and the Court of Appeals both found De Luna guilty beyond reasonable doubt of homicide; however, their findings
differed on the applicability to the case of the privileged mitigating circumstance of incomplete self-defense which, according to the
appellate court, was incorrectly considered by the trial court. The appellate court, likewise, increased the indemnity to the heirs of Rodelas
from P30,000.00 to P50,000.00.
In his petition, De Luna prays for his acquittal or, in the alternative, that he should be credited with the privileged mitigating circumstance of
incomplete self-defense and be sentenced to an indeterminate prison term of only (4) months and one (1) day of arresto mayor to four (4)
year and two (2) months of prision correccional.6

The court need not belabor the fact that the accused-appellant did take the life of his victim. There is more than enough evidentiary basis
to sustain the findings of both the trial court and the appellate court on the commission of the crime and the guilt of appellant. Instead, our
review will focus, by and large, on whether the privileged mitigating circumstance of incomplete self-defense, favorably considered; by the
trial court but rejected by the appellate court, should be appreciated in favor of appellant.

Article 11, paragraph I of the Revised Penal Code provides:

Art. 11. Justifying circumstance. — The following do not incur any criminal liability:

1. Any one who acts in defense of his person or rights, provided that the following circumstances concur:

First. Unlawful aggression.

Second. Reasonable necessity of the means employed to prevent or repel it.

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

When the foregoing requisites concur, there can be a legitimate claim of self-defense and no criminal liability attaches. Where,
upon the other hand, only one or two but not all three of the above requisites essential to justify the act or to exempt one from
criminal liability are attendant (termed "incomplete self-defense"), the accused still incurs, albeit entitled to a mitigation of,
criminal liability. We did repeatedly say-before that, whether complete or, incomplete, self-defense, by its very nature and
essence, always would require the attendance of unlawful aggression initiated by the victim which must clearly be shown.7 When
unlawful aggression on the victim's part is alone established, incomplete self-defense is so appreciated merely as an ordinary
mitigating circumstance under Article 13, paragraph 1,8 of the Code. When such unlawful aggression is coupled with still another
element of self-defense, incomplete self-defense becomes a privileged mitigating circumstance, referred to in Article 699 of the
Revised Penal Code, that entitles the accused to a reduction of the penalty imposed by law for the felony by one or two degrees
depending on the conditions and circumstances therein obtaining. 10

The trial court has rationalized that the deceased must have been the unlawful aggressor because of the prosecution's failure to present
Policeman Dionisio Ricaplaza (who would appear to have fetched and accompanied De Luna to the hospital for treatment) in order to
discredit De Luna's claim of having first been hit by the victim with a hard object below the left nipple. We agree with the appellate court
that the eyewitness account of Tagbago on the incident is sufficient to belie appellant's allegation. Below is a portion of Tagbago's
testimony:

Q So you want to impress the Honorable Court that Demetrio stayed also in the balcony where he,
according to you watched the sungka playing by your wife and daughter?

A Yes, sir.

Q And while you and Demetrio as well as your wife and daughter were in the balcony, do you
remember of any unusual incident that happened?

A Yes, sir, there was.

Q What was that unusual incident?

A Somebody shouted, sir.

Q Do you still remember what was shouted?

A Yes, sir.

A Judas, lumabas ka diyan, ninakaw mo ang manok ko.

Q Did you recognize the person who shouted those words?

A Yes, sir.

Q Who shouted those words?

A Mariano de Luna, sir.

Q Why could you tell that it was Mariano who shouted those words?

A I know his voice, sir, because I am from Hupi and he is also from Hupi.

Q How many times did Mariano shout those words?

A Once only, sir, in front of the house.

Q Was there any second shouting at any place?

A First, sir, he shouted near their house, the house of the accused and the second time was in front of
our house.

Q How far is the house of Mariano de Luna to your house?

A More or less, 70 meters, sir.

Q So you want to improve (sic) the Hen. Court that the first time you heard the shout: Judas, lumabas
ka diyan... was near the house of the accused, and the second time that you heard the shout was
when he was in front of your house, is that correct?

A Yes, sir.

Q Now, is it not a fact that your house is fronted by a bamboo fence?

A Yes, sir.

Q And fronting your bamboo fence is a road?

A Yes, sir.

Q How far is the bamboo fence fronting your house to the side of your house facing the bamboo
fence?

A More or less, 2 and 1/2 meters.

Q And after you heard the second shout, what happened?

A There was silence.

Q And after the silence, what did Demetrio do?

A He bade goodbye and he said he will go home.

Q Was Demetrio able to go home?

A No, sir.

Q Why was Demetrio not able to go home?

A Because he was stabbed by Mariano, sir.

Q By Mariano, you are referring to Mariano de Luna whom you identified while ago inside the
courtroom?

A Yes, sir.

Q Where was Demetrio when he was stabbed by Mariano?

A He was at the gate of the door of our fence.

Q What was Demetrio exactly doing by the door of your fence when he was stabbed by Mariano?

A He was going out, sir.

Q Will you please demonstrate to the Honorable Court the exact position of Demetrio when he was
stabbed by Mariano?

A He opened the door and then he stepped his right foot forward (witness demonstrates).

Q What is the height of your gate?

A More or less 5 foot, sir.

xxx xxx xxx

Q Now, if you have to come from the house you have to go out of that door of your fence, do you
have to pass this what we call "tarangkahan?"

A Yes, sir.

Q How high is your tarangkahan from the ground?

A Less than a foot.

xxx xxx xxx

Q How about the height of the fence, how high is it?

A More or less, 5 meters high.

Q And what happened while Demetrio was already at the door or gate?

A Mariano suddenly appeared.

Q And what did he do upon his sudden appearance?

A He suddenly stabbed Demetrio.

Q How many times did you see Mariano stab Demetrio?

A Only once, sir.

Q Will you please get out of the witness stand again and demonstrate to the Hon. Court how you saw
Mariano stabbed Demetrio?

A Mariano suddenly appeared from the side of the fence and suddenly stabbed Demetrio.

FISCAL NARITO:

The witness in an upward thrust with the right arm (describing demonstration of witness)

Q You demonstrated awhile ago that Mariano suddenly appeared and then suddenly stabbed
Demetrio with your demonstrating with your right arm on an upward thrust, with what hand did
Mariano stab Demetrio?

A What I saw, sir, is that Mariano's right hand.

Q According to you Mariano stabbed Demetrio only once, and after Mariano had stabbed Demetrio,
what did Mariano do?
 A He moved backward to the road, sir.

Q How about Demetrio, after he was stabbed once, what did he do?

A He moved backward then he fell. 11

The defense would rather that Tagbago be discredited allegedly because of "glaring" inconsistencies in his testimony. Not only have the
supposed inconsistencies been sufficiently explained by the appellate court but that, indeed, they concern less than significant details that
do not detract from the credibility of Tagbago and credulity of his eyewitness account. The appellate court, scrutinizing the case closely
has aptly observed:

Although accused-appellant studiously avoided admitting that he had stabbed the victim, it is clear that he inflicted the
mortal wound on Demetrio Rodelas. The eyewitness account of Sergio Tagbago clearly shows that accused appellant
stabbed the victim. Tagbago said he heard defendant-appellant shout angry words at the victim. He later saw
accused-appellant stab Rodelas. Although the defense tried hard to show that Tagbago did not see the incident
happen, accused appellant's admission that the incident happened in front of Tagbago's house makes it more
probable that Tagbago really witnessed the stabbing of Demetrio.

Tagbago's testimony was not given credit by the trial court because of what it considered glaring inconsistencies and
improbabilities. The trial court said:

It appeared from Tagbago's oral testimony on direct examination that he was at his balcony when
Mariano de Luna stabbed Demetrio Rodelas and went inside only after the latter's fall.

On cross examination, however, he admitted that he was inside his house when Mariano de Luna
suddenly appeared and delivered the stabbing blow.

There is no inconsistency here. Tagbago testified on cross-examination that he was about an arm's length from the place
where his wife and daughter were playing "sungka" in the balcony. (TSN; on. 14-16, November 7, 1984) Hence, as he
testified on direct-examination, he was near the balcony at the time of the incident.

The trial court further said:

On one occasion, Tagbago relayed that Mariano de Luna stabbed Demetrio Rodelas while at a
distance of five (5) feet in his demonstration however he showed that Mariano de Luna with the use of
his right hand made an upward thrust of the bladed weapon hitting the left side of Demetrio Rodelas'
right upper leg. If it is so, then a fully stretched right arm which is more or less three (3) feet will not
reach the body of the victim. More so when in this case, prosecution did not establish that Mariano de
Luna's hand was fully stretched forward when the bladed instrument about eight (8) inches hit
Demetrio Rodelas "right thigh".

As the Solicitor General states in his brief for the appellee:

This is explicable. In the first place, the approximate distance of about five (5) feet is still possible. It
finds support in the testimony of witness Tagbago who claimed that the victim was standing and in the
act of lifting his right foot over the one-foot high bamboo gate (tarangkahan) when he was stabbed
by appellant who made an upward thrust of his right arm and then hitting the upper thigh. In other
words, the victim's legs were not only apart from each other but the right leg was raised upward at
the time of the attack.

Be that as it may, it can not be expected of witness Tagbago to recollect with precision the actual
measurement considering the manner, place and time the stabbing incident occurred. What is
important is that Tagbago's demonstration by making an upward thrust of his right arm and hitting with
a bladed weapon the left side of the victim's right upper leg was corroborated both by the physical
evidence showing the fatal wound sustained and the testimony of the attending physician.

"(Appellee's Brief, pp. 23-24)"

Finally, it was pointed out:

In his direct testimony, Tagbago portrayed that Demetrio Rodelas made a step backward from the
gate (tarangkahan) then fell. When confronted, however, with his affidavit, admitted that Demetrio
Rodelas was able to run and fell at his balisbisan. The conclusion therefore should be that Demetrio
Rodelas came from a distance farther than the tarangkahan. Since the tarangkahan is only 2-1/2
meters away from the balisbisan. Only two (2) full stretched steps would be necessary to reach the
point where Demetrio Rodelas fell and not as what was stated in Tagbago's affidavit (he ran and fell).
 But again, as the Solicitor General argues:

There is no basis for the conclusion that when the victim ran backward after having been stabbed by
the appellant, he came from a distance farther than the gate (tarangkahan). The word run simply
means to move swiftly, make haste or rush. Hence, the emphasis is not on the distance travelled but
on the manner of movement. Thus, the victim, after having been attacked, was able to move swiftly
reaching the wall by the side of the house (balisbisan) before he fell (pp. 6-7, TSN, July 25, 1985). Had
the victim come from a place farther from the gate as appellant wishes to point out, it would not be
possible for the former to even reach the side of the house considering that the wound inflicted was
fatal. The most logical conclusion, therefore, should have been that the victim was stabbed while
lifting his right foot over the one-foot high bamboo gate (tarangkahan). After being stabbed, he must
have withdrawn his right foot from over the tarangkahan, then turned around and instinctively moved
swiftly or ran back to the house of Tagbago but fell upon reaching the balisbisan, the place on the
ground below the house awning.

Indeed, what cannot altogether be disregarded is the fact that Tagbago saw and heard the incident — in short he
witnessed it. There is no question that when the first shout was heard he was in the balcony of his house, with his family
and the victim Demetrio. It was accused-appellant challenging Demetrio to a fight. Later accused-appellant himself
confirmed what Tagbago said he had heard the accused-appellant say when the latter said bad blood existed
between him and the deceased and he had in fact held him responsible for the death of his gamecocks.

Moreover, as pointed out by the Solicitor General, there is no question either that Tagbago was in a position to see the
incident because there was no obstruction; the wall of the balcony was no higher than the height of the waistline and
there was an open space between the window sill and the roofing.

Indeed, the inconsistencies pointed out by the trial court concern minor matters which do not detract from the credibility
of Tagbago as a witness. This credibility of the witnesses is not affected by the fact that the deceased was the son-in-law
of his brother-in-law. In the ultimate analysis; his testimony must be appraised on its merits and, as already pointed out,
nothing that the accused-appellant has said shows that Tagbago's testimony is unworthy of belief. 12

There is no cogent reason for us to disturb the above findings of the appellate court.

WHEREFORE, judgment is hereby rendered DISMISSING the instant appeal and AFFIRMING in toto the decision appealed from. Costs against
appellant.

SO ORDERED.

VIRGILIO TALAMPAS y G.R. No. 180219

MATIC,
Petitioner,
Present:

CORONA, C.J., Chairperson,

LEONARDO-DE CASTRO,
-versus- BERSAMIN,
DEL CASTILLO, and
VILLARAMA, JR., JJ.

PEOPLE OF THE PHILIPPINES, Promulgated:

Respondent.
November 23, 2011
x-----------------------------------------------------------------------------------------x

DECISION

BERSAMIN, J.:

By petition for review on certiorari, Virgilio Talampas y Matic (Talampas) seeks the review of the affirmance of his conviction for
homicide (for the killing of the late Ernesto Matic y Masinloc) by the Court of Appeals (CA) through its decision promulgated on August 16,
2007.[1]

The Regional Trial Court, Branch 25, in Bian, Laguna (RTC) had rejected his pleas of self-defense and accident and had declared
him guilty of the felony under the judgment rendered on June 22, 2004.[2]

Antecedents

The information filed on November 17, 1995, to which Talampas pleaded not guilty, averred as follows:[3]
 That on or about July 5, 1995, in the Municipality of Bian, Province of Laguna, Philippines and within the jurisdiction of this
Honorable Court, accused VIRGILIO TALAMPAS, with intent to kill, while conveniently armed with a short firearm and
without any justifiable cause, did then and there willfully, unlawfully and feloniously attack, assault and shoot one Ernesto
Matic y Masinloc with the said firearm, thereby inflicting upon him gunshot wound at the back of his body which directly
caused his instantaneous death, to the damage and prejudice of his surviving heirs.

CONTRARY TO LAW.

The State presented as witnesses Jose Sevillo, Francisco Matic, Jerico Matic, Dr. Valentin Bernales, and Josephine Matic. The CA
summarized their testimonies thuswise:[4]

Prosecution witness Jose Sevillo (Jose) who allegedly witnessed the incident in question, testified that on July 5, 1995 at
about 7:00 oclock in the evening, he together with Eduardo Matic (Eduardo) and Ernesto Matic (Ernesto) were infront of
his house, along the road in Zona Siete (7), Wawa, Malaban, Bian, Laguna, repairing his tricycle when he noticed the
appellant who was riding on a bicycle passed by and stopped. The latter alighted at about three (3) meters away from
him, walked a few steps and brought out a short gun, a revolver, and poked the same to Eduardo and fired it hitting
Eduardo who took refuge behind Ernesto. The appellant again fired his gun three (3) times, one shot hitting Ernesto at the
right portion of his back causing him (Ernesto) to fall on the ground with his face down. Another shot hit Eduardo on his
nape and fell down on his back (patihaya). Thereafter, the appellant ran away, while he (Jose) and his neighbors
brought the victims to the hospital. On June 6, 1995, Jose executed a Sworn Statement at the Bian Police Station.

Another witness, Francisco Matic, testified that prior to the death of his brother Ernesto who was then 44 years old, he
(Ernesto) was driving a tricycle on a boundary system and earned P100.00 daily, although not on a regular basis
because sometimes Ernesto played in a band for P100.00 per night.

Jerico Matic, eldest son of Ernesto, alleged that he loves his father and his death was so painful to him that he could not
quantify his feelings in terms of money. The death of his father was a great loss to them as they would not be able to
pursue their studies and that nobody would support them financially considering that the money being sent by their
mother in the amount of P2,000.00 to P2,500.00 every three (3) months, would not be enough.

Dr. Valentin Bernales likewise, testified that he was the one who conducted the autopsy on the body of Ernesto and
found one gunshot in the body located at the back of the costal area, right side, sixteen (16) centimeters from the spinal
column. This shot was fatal as it involved the major organs such as the lungs, liver and the spinal column which caused
Ernestos death.

The last witness, Josephine Matic, wife of Ernesto, testified that her husband was laid to rest on July 18, 1995 and that his
untimely death was so painful and that she could not provide her children with sustenance. She asked for the amount
of P200,000.00 for her to be able to send her children to school.

On his part, Talampas interposed self-defense and accident. He insisted that his enemy had been Eduardo Matic (Eduardo), not victim
Ernesto Matic (Ernesto); that Eduardo, who was then with Ernesto at the time of the incident, had had hit him with a monkey wrench, but
he had parried the blow; that he and Eduardo had then grappled for the monkey wrench; that while they had grappled, he had notice
that Eduardo had held a revolver; that he had thus struggled with Eduardo for control of the revolver, which had accidentally fired and hit
Ernesto during their struggling with each other; that the revolver had again fired, hitting Eduardo in the thigh; that he had then seized the
revolver and shot Eduardo in the head; and that he had then fled the scene when people had started swarming around.

Ruling of the RTC

On June 22, 2004, the RTC, giving credence to the testimony of eyewitness Jose Sevilla, found Talampas guilty beyond reasonable doubt of
homicide,[5] and disposed:

WHEREFORE, premises considered, the court finds the accused guilty beyond reasonable doubt of the crime of
Homicide, with one mitigating circumstance of voluntary surrender, and hereby sentences him to suffer an
indeterminate penalty of IMPRISONMENT ranging from TEN (10) years and One (1) day of prision mayor, as minimum, to
FOURTEEN (14) years and EIGHT (8) months of reclusion temporal, as maximum. He is likewise ordered to pay the heirs of
Ernesto Matic y Masinloc the following sums, to wit:

1. P50,000.00 as and for death indemnity;

2. P50,000.00 as and for moral damages;
3. P25,000.00 as and for actual damages; and
4. P30,000.00 as and for temperate damages.

Furnish Public Prosecutor Nofuente, Atty. Navarroza, the private complainant and accused with a copy of this decision.

SO ORDERED.[6]

Ruling of the CA

Talampas appealed to the CA, contending that:

I
 THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANT FOR THE CRIME CHARGED
HAS BEEN PROVEN BEYOND REASONABLE DOUBT.

II
THE COURT A QUO GRAVELY ERRED IN NOT FINDING THAT THE DEATH OF ERNESTO MATIC WAS MERELY ACCIDENTAL.

III
THE COURT A QUO GRAVELY ERRED IN NOT FINDING THAT THE ACCUSED-APPELLANT ACTED IN DEFENSE OF HIMSELF WHEN
HE GRAPPLED WITH EDUARDO MATIC.

Still, the CA affirmed the conviction based on the RTCs factual and legal conclusions, and ruled that Talampas, having invoked self-
defense, had in effect admitted killing Ernesto and had thereby assumed the burden of proving the elements of self-defense by credible,
clear and convincing evidence, but had miserably failed to discharge his burden.[7]

The CA deleted the award of temperate damages in view of the awarding of actual damages, pointing out that the two kinds of
damages were mutually exclusive.[8]
Issue

Hence, Talampas is now before the Court, continuing to insist that his guilt was not proven beyond reasonable doubt, and that the lower
courts both erred in rejecting his claim of self-defense and accidental death.

Ruling

The petition for review is denied for lack of merit.

Firstly, the elements of the plea of self-defense are: (a) unlawful aggression on the part of the victim; (b) reasonable necessity of the means
employed to prevent or repel the unlawful aggression; and (c) lack of sufficient provocation on the part of the accused in defending
himself.[9]

In the nature of self-defense, the protagonists should be the accused and the victim. The established circumstances indicated
that such did not happen here, for it was Talampas who had initiated the attack only against Eduardo; and that Ernesto had not been at
any time a target of Talampas attack, he having only happened to be present at the scene of the attack. In reality, neither Eduardo nor
Ernesto had committed any unlawful aggression against Talampas. Thus, Talampas was not repelling any unlawful aggression from the
victim (Ernesto), thereby rendering his plea of self-defense unwarranted.

Secondly, Talampas could not relieve himself of criminal liability by invoking accident as a defense. Article 12(4) of the Revised Penal
Code,[10] the legal provision pertinent to accident, contemplates a situation where a person is in fact in the act of doing something legal,
exercising due care, diligence and prudence, but in the process produces harm or injury to someone or to something not in the least in the
mind of the actor an accidental result flowing out of a legal act.[11] Indeed, accident is an event that happens outside the sway of our will,
and although it comes about through some act of our will, it lies beyond the bounds of humanly foreseeable consequences. [12] In short,
accident presupposes the lack of intention to commit the wrong done.

The records eliminate the intervention of accident. Talampas brandished and poked his revolver at Eduardo and fired it, hitting Eduardo,
who quickly rushed to seek refuge behind Ernesto. At that point, Talampas fired his revolver thrice. One shot hit Ernesto at the right portion
of his back and caused Ernesto to fall face down to the ground. Another shot hit Eduardo on the nape, causing Eduardo to fall on his back.
Certainly, Talampas acts were by no means lawful, being a criminal assault with his revolver against both Eduardo and Ernesto.

And, thirdly, the fact that the target of Talampas assault was Eduardo, not Ernesto, did not excuse his hitting and killing of Ernesto. The fatal
hitting of Ernesto was the natural and direct consequence of Talampas felonious deadly assault against Eduardo. Talampas poor aim
amounted to aberratio ictus, or mistake in the blow, a circumstance that neither exempted him from criminal responsibility nor mitigated his
criminal liability. Lo que es causa de la causa, es causa del mal causado (what is the cause of the cause is the cause of the evil
caused).[13] Under Article 4 of the Revised Penal Code,[14]criminal liability is incurred by any person committing a felony although the
wrongful act done be different from that which he intended.

Nonetheless, the Court finds the indeterminate sentence of 10 years and one day of prision mayor, as minimum, to 14 years and eight
months, as maximum, legally erroneous.

The penalty for homicide under Article 246 of the Revised Penal Code is reclusion temporal. Under Section 1 of the Indeterminate
Sentence Law,[15] the court, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, is
mandated to prescribe an indeterminate sentence the maximum term of which shall be that which, in view of the attending
circumstances, could be properly imposed under the rules of the Revised Penal Code, and the minimum term shall be within the range of
the penalty next lower to that prescribed by the Revised Penal Code for the offense. With the absence of aggravating or mitigating
circumstances, the imposable penalty is reclusion temporal in its medium period, or 14 years, eight months, and one day to 17 years and
four months. This is pursuant to Article 64 of the Revised Penal Code.[16] It is such period that the maximum term of the indeterminate
sentence should be reckoned from. Hence, limiting the maximum term of the indeterminate sentence at only 14 years and eight months
contravened the express provision of the Indeterminate Sentence Law, for such penalty was within the minimum period of reclusion
temporal. Accordingly, the Court must add one day to the maximum term fixed by the lower courts.

The Court finds to be unnecessary the increment of one day as part of the minimum term of the indeterminate sentence. It may
be true that the increment did not constitute an error, because the minimum term thus fixed was entirely within the parameters of
the Indeterminate Sentence Law. Yet, the addition of one day to the 10 years as the minimum term of the indeterminate sentence of
Talampas may occasion a degree of inconvenience when it will be time for the penal administrators concerned to consider and
determine whether Talampas is already qualified to enjoy the benefits of the Indeterminate Sentence Law. Hence, in order to simplify the
computation of the minimum penalty of the indeterminate sentence, the Court deletes the one-day increment from the minimum term of
the indeterminate sentence.
WHEREFORE, the Court AFFIRMS the decision promulgated on August 16, 2007 finding VIRGILIO TALAMPAS y MATIC guilty beyond
reasonable doubt of the crime of homicide, and IMPOSES the indeterminate sentence of 10 years of prision mayor, as minimum, to 14
years, eight months, and one day of reclusion temporal, as maximum.

The petitioner shall pay the costs of suit.

SO ORDERED.

[G.R. No. 103613. February 23, 2001]

PEOPLE OF THE PHILIPPINES, petitioner, vs. COURT OF APPEALS and ELADIO C. TANGAN, respondents.

[G.R. No. 105830. February 23, 2001]

ELADIO C. TANGAN, petitioner, vs. PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, respondents.

DECISION

YNARES-SANTIAGO, J.:

At around 11:30 p.m. of December 1, 1984, Navy Captain Eladio C. Tangan was driving alone on Roxas Boulevard heading south. He
had just come from Buendia Avenue on an intelligence operation. At the same time, Generoso Miranda, a 29-year old optometrist, was
driving his car in the same direction along Roxas Boulevard with his uncle, Manuel Miranda, after coming from the Ramada
Hotel. Generoso was moving ahead of Tangan. Suddenly, firecrackers were thrown in Generosos way, causing him to swerve to the right
and cut Tangans path. Tangan blew his horn several times. Generoso slowed down to let Tangan pass. Tangan accelerated and overtook
Generoso, but when he got in front, Tangan reduced speed. Generoso tried four or five times to overtake on the right lane but Tangan kept
blocking his lane. As he approached Airport Road, Tangan slowed down to make a U-turn. Generoso passed him, pulled over and got out
of the car with his uncle. Tangan also stopped his car and got out. As the Mirandas got near Tangans car, Generoso loudly
retorted, Putang ina mo, bakit mo ginigitgit ang sasakyan ko? Generoso and Tangan then exchanged expletives. Tangan pointed his hand
to Generoso and the latter slapped it, saying, Huwag mo akong dinuduro! Sino ka ba, ano ba ang pinagmamalaki mo? Tangan
countered, Ikaw, ano ang gusto mo? With this, Tangan went to his car and got his .38 caliber handgun on the front seat. The subsequent
events per account of the parties respective witnesses were conflicting:

According to the prosecution witnesses, particularly, Mary Ann Borromeo, Rosalia Cruz and Manuel Miranda, the accused pointed his gun
at Generoso Miranda and when Manuel Miranda tried to intervene, the accused pointed his gun at Manuel Miranda, and after that the
accused pointed again the gun to Generoso Miranda, the accused shot Generoso Miranda at a distance of about a meter but because
the arm of the accused was extended, the muzzle of the gun reached to about more or less one foot away from the body of Generoso
Miranda. The shot hit the stomach of Generoso Miranda causing the latter to fall and while still conscious, Generoso Miranda told Manuel
Miranda, his uncle, to get the gun. Manuel Miranda grappled for the possession of the gun and during their grappling, Rosalia Cruz
intervened and took hold of the gun and after Rosalia Cruz has taken hold of the gun, a man wearing a red T-shirt took the gun from
her. The man in T-shirt was chased by Manuel Miranda who was able to get the gun where the man in red T-shirt placed it.

On the other hand, the defense, particularly the accused and his witness by the name of Nelson Pante claimed that after the gun was
taken by the accused from inside his car, the Mirandas started to grapple for possession of the gun and during the grappling, and while the
two Mirandas were trying to wrest away the gun from the accused, they fell down at the back of the car of the accused. According to the
accused, he lost the possession of the gun after falling at the back of his car and as soon as they hit the ground, the gun fell, and it
exploded hitting Generoso Miranda.[1]

After the gun went off, Tangan ran away. Meanwhile, Generoso lay on the ground bloodied. His uncle, Manuel, looked for the gun
and ran after Tangan, joining the mob that had already pursued him. Tangan found a policeman who allowed him to enter his patrol
car. Manuel arrived and told the policeman that Tangan had just shot his nephew. Then he went back to where Generoso lay and there
found two ladies, later identified as Mary Ann Borromeo and Rosalina Cruz, helping his nephew board a taxi. Manuel suggested that
Generoso be brought to the hospital in his car. He was rushed to the Philippine General Hospital but he expired on the way.

Tangan was charged with the crime of murder with the use of an unlicensed firearm. [2] After a reinvestigation, however, the
information was amended to homicide with the use of a licensed firearm,[3] and he was separately charged with illegal possession of
unlicensed firearm.[4] On arraignment, Tangan entered a plea of not guilty in the homicide case, but moved to quash the information for
illegal possession of unlicensed firearm on various grounds.The motion to quash was denied, whereupon he filed a petition for certiorari with
this Court.[5] On November 5, 1987, said petition was dismissed and the joint trial of the two cases was ordered.[6]

During the trial, the prosecution and the defense stipulated on the following: that the amount of P126,000.00 was incurred for the
funeral and burial expenses of the victim;[7] that P74,625.00 was incurred for attorneys fees; and that the heirs of Generoso suffered moral
damages, the amount of which is left for the courts to determine. After trial, the lower court acquitted Tangan of illegal possession of
firearm, but convicted him of homicide. The privileged mitigating circumstance of incomplete self-defense and the ordinary mitigating
circumstances of sufficient provocation on the part of the offended party and of passion and obfuscation were appreciated in his favor;
consequently, the trial court ordered him to suffer an indeterminate penalty of two (2) months of arresto mayor, as minimum, to two (2)
years and four (4) months of prision correccional, as maximum, and to indemnify the heirs of the victim.[8] Tangan was released from
detention after the promulgation of judgment[9] and was allowed bail in the homicide case.

Private complainants, the heirs of Generoso Miranda, filed a petition for review with this Court, docketed as G.R. No. 102677,
challenging the civil aspect of the court a quos decision, but the same was dismissed for being premature. On the other hand, Tangan
appealed to the Court of Appeals, which affirmed the judgment of the trial court but increased the award of civil indemnity to
P50,000.00.[10] His subsequent motion for reconsideration and a motion to cite the Solicitor General in contempt were denied by the Court
of Appeals.[11]

The Office of the Solicitor General, on behalf of the prosecution, alleging grave abuse of discretion, filed a petition for certiorari under
Rule 65, docketed as G.R. No. 103613, naming as respondents the Court of Appeals and Tangan, where it prayed that the appellate courts
judgment be modified by convicting accused-appellant of homicide without appreciating in his favor any mitigating
circumstance.[12] Subsequently, the Office of the Solicitor General, this time acting for public respondent Court of Appeals, filed a motion for
extension to file comment to its own petition for certiorari.[13] Discovering its glaring error, the Office of the Solicitor General later withdrew its
motion for extension of time.[14] Tangan filed a Reply asking that the case be submitted for decision.[15]

Meanwhile, Tangan filed a separate petition for review under Rule 45, docketed as G.R. No. 105830. [16] Since the petition
for certiorari filed by the Solicitor General remained unresolved, the two cases were consolidated.[17] The Office of the Solicitor General filed
a manifestation in G.R. No. 105830, asking that it be excused from filing a comment to Tangans petition for review, in order to avoid taking
contradictory positions.[18]

In the recent case of People v. Velasco and Galvez, [19] we held that the prosecution cannot avail of the remedies of special civil
action on certiorari, petition for review on certiorari, or appeal in criminal cases. Previous to that, we categorically ruled that the writ
of certiorari cannot be used by the State in a criminal case to correct a lower courts factual findings or evaluation of the evidence.[20]

Rule 117, Section 7, of the Revised Rules of Criminal Procedure, is clear:

Former conviction or acquittal; double jeopardy. - When an accused has been convicted or acquitted, or the case against him dismissed
or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other
formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction
or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to
commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the
former complaint or information.

However, the conviction of the accused shall not be a bar to another prosecution for an offense which necessarily includes the offense
charged in the former complaint or information under any of the following instances:

(a) the graver offense developed due to supervening facts arising from the same act or omission constituting the former charge;

(b) the facts constituting the graver charge became known or were discovered only after a pleas was entered in the former complaint or
information; or

(c) the plea of guilty to the lesser offense was made without the consent of the fiscal and of the offended party, except as provided in
section 1(f) of Rule 116.

In any of the foregoing cases, where the accused satisfies or serves in whole or in part the judgment, he shall be credited with the same in
the event of conviction for the graver offense.

Based on the foregoing, the Solicitor Generals petition for certiorari under Rule 65, praying that no mitigating circumstance be
appreciated in favor of accused-appellant and that the penalty imposed on him be correspondingly increased, constitutes a violation of
Tangans right against double jeopardy and should be dismissed.

We now come to the petition for review filed by Tangan. It is noteworthy that during the trial, petitioner Tangan did not invoke self-
defense but claimed that Generoso was accidentally shot. As such, the burden of proving self-defense,[21] which normally would have
belonged to Tangan, did not come into play. Although Tangan must prove his defense of accidental firing by clear and convincing
evidence,[22] the burden of proving the commission of the crime remained in the prosecution.

Both the trial court and the Court of Appeals appreciated in favor of Tangan the privileged mitigating circumstance of incomplete
self-defense under Article 13 (1), in relation to Article 11 (1), of the Revised Penal Code, to wit:

ARTICLE 11. Justifying circumstances. - The following do not incur any criminal liability:
1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur:

First. Unlawful aggression.

Second. Reasonable necessity of the means employed to prevent or repel it.

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

xxxxxxxxx

ARTICLE 13. Mitigating Circumstances. The following are mitigating circumstances:

1. Those mentioned in the preceding Chapter, when all the requisites necessary to justify the act or to exempt from criminal liability in the
respective cases are not attendant.

Incomplete self-defense is not considered as a justifying act, but merely a mitigating circumstance; hence, the burden of proving the
crime charged in the information is not shifted to the accused.[23] In order that it may be successfully appreciated, however, it is necessary
that a majority of the requirements of self-defense be present, particularly the requisite of unlawful aggression on the part of the
victim.[24] Unlawful aggression by itself or in combination with either of the other two requisite suffices to establish incomplete self-
defense. Absent the unlawful aggression, there can never be self-defense, complete or incomplete,[25] because if there is nothing to
prevent or repel, the other two requisites of defense will have no basis.[26]

There is no question that the bullet which hit the victim was fired from the caliber. 38, which was issued to Tangan by the Philippine
Navy. The cause of death was severe hemorrhage secondary to gunshot wound of the abdomen, caused by the bullet fired from a gun of
the said caliber. The prosecution claimed that Tangan shot the victim point-blank in the stomach at a distance of about one foot. On the
other hand, Tangan alleged that when he grappled with Generoso and Manuel Miranda for possession of the gun, it fell to the ground and
accidentally fired, hitting the victim.

When the testimonies of witnesses in open court are conflicting in substantial points, the calibration of the records on appeal
becomes difficult. It is the word of one party against the word of the other. The reviewing tribunal relies on the cold and mute pages of the
records, unlike the trial court which had the unique opportunity of observing first-hand that elusive and incommunicable evidence of the
witness deportment on the stand while testifying.[27] The trial courts assessments of the credibility of witnesses is accorded great weight and
respect on appeal and is binding on this Court,[28] particularly when it has not been adequately demonstrated that significant facts and
circumstances were shown to have been overlooked or disregarded by the court below which, if considered, might affect the outcome
hereof.[29] The rationale for this has been adequately explained in that,

The trial court has the advantage of observing the witnesses through the different indicators of truthfulness or falsehood, such as the angry
flush of an insisted assertion or the sudden pallor of a discovered lie or the tremulous mutter of a reluctant answer or the forthright tone of a
ready reply; or the furtive glance, the blush of conscious shame, the hesitation, the sincere or the flippant or sneering tone, the heat, the
calmness, the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, and carriage and mien.[30]

Equally, when a person fabricates a story, he usually adopts a simple account because a complex one might lead to entanglement
from which he may find it hard to extricate himself. Along the same line, the experience of the courts and the general observations of
humanity teach us that the natural limitations of our inventive faculties are such that if a witness delivers in court a false narrative containing
numerous details, he is almost certain to fall into fatal inconsistencies, to make statements which can be readily refuted, or to expose in his
demeanor the falsity of his message.[31] Aside from this, it is not also unusual that the witness may have been coached before he is called to
the stand to testify.

Somewhere along the painstaking review of the evidence on record, one version rings the semblance of truth, not necessarily
because it is the absolute truth, but simply because it is the best approximation of the truth based on the declarations of witnesses as
corroborated by material evidence. Perforce, the other version must be rejected. Truth and falsehood, it has been well said, are not always
opposed to each other like black and white, but oftentimes, and by design, are made to resemble each other so as to be hardly
distinguishable.[32] Thus, after analyzing the conflicting testimonies of the witnesses, the trial court found that:

When the accused took the gun from his car and when he tried to get out of the car and the two Mirandas saw the accused already
holding the gun, they started to grapple for the possession of the gun that it went off hitting Generoso Miranda at the stomach. The court
believes that contrary to the testimony of the accused, he never lost possession of the gun for if he did and when the gun fell to the
ground, it will not first explode or if it did, somebody is not holding the same, the trajectory of the bullet would not be perpendicular or
horizontal.[33]

The Court of Appeals agreed -

The finding of the lower court that Generoso Miranda III was shot while the accused and the Mirandas were grappling for the possession of
the gun immediately after the accused had taken his gun from inside his car and before the three allegedly fell to the ground behind the
car of the accused is borne out by the record. The court also agrees with the court below that it was the accused-appellant who shot and
killed Generoso Miranda III. If the accused-appellant did not shoot Generoso III during the scuffle, he would have claimed accidental killing
by alleging that his gun exploded during the scuffle instead of falsely testifying that he and the Mirandas fell to the ground behind his car
and the gun exploded in the possession of Manuel Miranda. The theory of the prosecution that the shooting took place while the three
were grappling for the possession of the gun beside the car of appellant is completely in harmony with the findings and testimony of Dr.
Ibarrola regarding the relative position of the three and the precarious nearness of the victim when accused-appellant pulled the trigger of
his gun. Dr. Ibarrola explained that the gun was about two (2) inches from the entrance wound and that its position was almost
perpendicular when it was fired. It was in fact the closeness of the Mirandas vis--vis appellant during the scuffle for the gun that the
accused-appellant was compelled to pull the trigger in answer to the instinct of self-preservation.[34]

No convincing reason appears for the Court to depart from these factual findings, the same being ably supported by the evidence
on record. In violent deaths caused by gunshot wounds, the medical report or the autopsy on the cadaver of the victim must as much as
possible narrate the observations on the wounds examined. It is material in determining the truthfulness of the events narrated by the
witnesses presented. It is not enough that the witness looks credible and assumes that he indeed witnessed the criminal act. His narration
must be substantiated by the physical evidence available to the court.

The medical examiner testified that the distance between the muzzle of the gun and the target was about 2 inches but definitely not
more than 3 inches. Based on the point of exit and the trajectory transit of the wound, the victim and the alleged assailant were facing
each other when the shot was made and the position of the gun was almost perpendicular when fired. [35] These findings disprove Tangans
claim of accidental shooting. A revolver is not prone to accidental firing because of the nature of its mechanism, unless it was already first
cocked and pressure was exerted on the trigger. If it were uncocked, then considerable pressure had to be applied on the trigger to fire
the revolver.[36]

Having established that the shooting was not accidental, the next issue to be resolved is whether Tangan acted in incomplete self-
defense. The element of unlawful aggression in self-defense must not come from the person defending himself but from the victim.

A mere threatening or intimidating attitude is not sufficient.[37] Likewise, the exchange of insulting words and invectives between
Tangan and Generoso Miranda, no matter how objectionable, could not be considered as unlawful aggression, except when coupled
with physical assault.[38] There being no lawful aggression on the part of either antagonists, the claim of incomplete self-defense
falls. Tangan undoubtedly had possession of the gun, but the Mirandas tried to wrestle the gun from him. It may be said that the former had
no intention of killing the victim but simply to retain possession of his gun. However, the fact that the victim subsequently died as a result of
the gunshot wound, though the shooter may not have the intention to kill, does not absolve him from culpability. Having caused the fatal
wound, Tangan is responsible for all the consequences of his felonious act. He brought out the gun, wrestled with the Mirandas but
anticipating that the gun may be taken from him, he fired and fled.

The third requisite of lack of sufficient provocation on the part of the person defending himself is not supported by evidence. By
repeatedly blocking the path of the Mirandas for almost five times, Tangan was in effect the one who provoked the former. The repeated
blowing of horns, assuming it was done by Generoso, may be irritating to an impatient driver but it certainly could not be considered as
creating so powerful an inducement as to incite provocation for the other party to act violently.

The appreciation of the ordinary mitigating circumstances of sufficient provocation and passion and obfuscation under Article 13,
paragraphs 4 and 6,[39] have no factual basis. Sufficient provocation as a requisite of incomplete self-defense is different from sufficient
provocation as a mitigating circumstance. As an element of self-defense, it pertains to its absence on the part of the person defending
himself; while as a mitigating circumstance, it pertains to its presence on the part of the offended party. Besides, only one mitigating
circumstance can arise out of one and the same act.[40] Assuming for the sake of argument that the blowing of horns, cutting of lanes or
overtaking can be considered as acts of provocation, the same were not sufficient. The word sufficient means adequate to excite a
person to commit a wrong and must accordingly be proportionate to its gravity. [41] Moreover, Generosos act of asking for an explanation
from Tangan was not sufficient provocation for him to claim that he was provoked to kill or injure Generoso. [42]

For the mitigating circumstance of passion and obfuscation to be appreciated, it is required that (1) there be an act,
both unlawful and sufficient to produce such a condition of mind; and (2) said act which produced the obfuscation was not far removed
from the commission of the crime by a considerable length of time, during which the perpetrator might recover his normal equanimity.[43]

In the case at bar, Tangan could not have possibly acted upon an impulse for there was no sudden and unexpected occurrence
which wuld have created such condition in his mind to shoot the victim. Assuming that his path was suddenly blocked by Generoso
Miranda due to the firecrackers, it can no longer be treated as a startling occurrence, precisely because he had already passed them and
was already the one blocking their path. Tangans acts were done in the spirit of revenge and lawlessness, for which no mitigating
circumstance of passion or obfuscation can arise.

With respect to the penalty, under the laws then existing, homicide was penalized with reclusion temporal,[44] but if the homicide was
committed with the use of an unlicensed firearm, the penalty shall be death.[45] The death penalty, however, cannot be imposed on
Tangan because in the meantime, the 1987 Constitution proscribed the imposition of death penalty; and although it was later restored in
1994, the retroactive application of the death penalty is unfavorable to him. Previously, the accused may be prosecuted for two crimes: (1)
homicide or murder under the Revised Penal Code and (2) illegal possession of firearm in its aggravated form under P.D. 1866. [46]

P.D. 1866 was amended by R.A. No. 8294,[47] which provides that if an unlicensed firearm is used in murder or homicide, such use of
unlicensed firearm shall be appreciated as an aggravating circumstance and no longer considered as a separate offense,[48] which means
that only one offense shall be punished murder or homicide. However, this law cannot apply retroactively because it will result in the
imposition on Tangan of the maximum period of the penalty. Moreover, under Rule 110, Section 8 of the Revised Rules of Criminal
Procedure,[49] the aggravating circumstance must be alleged in the information. Being favorable, this new rule can be given retroactive
effect as they are applicable to pending cases.[50] In any case, Tangan was acquitted of the illegal possession case.

Consequently, Tangan should be sentenced to suffer the penalty of reclusion temporal. Pursuant to Article 64 of the Revised Penal
Code, if the prescribed penalty is composed of three periods, and there is neither mitigating nor aggravating circumstance, the medium
period shall be applied. Applying the Indeterminate Sentence law, the maximum of the indeterminate penalty shall be that which, in view
of the attendant circumstances, may be properly imposed, which in this case is reclusion temporal medium with an imprisonment range of
from fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months. The minimum of the indeterminate
sentence shall be the next lower degree which is prision mayor with a range of from six (6) years and one (1) day to twelve (12)
years.[51] Hence, petitioner Tangan is sentenced to an indeterminate penalty of six (6) years and one (1) day of prision mayor, as minimum,
to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum.
 The death indemnity of P30,000.00 was correctly increased by the appellate court to P50,000.00 in line with jurisprudence.[52] Moral
damages are awarded in criminal cases involving injuries if supported by evidence on record, [53] but the stipulation of the parties in this
case substitutes for the necessity of evidence in support thereof. Though not awarded below, the victims heirs are entitled to moral
damages in the amount of P50,000.00 which is considered reasonable considering the pain and anguish brought by his death. [54]

WHEREFORE, the petition in G.R. No. 103613 is DISMISSED. The appealed decision subject of G.R. No. 105830 is AFFIRMED with the
following MODIFICATIONS:

(1) Tangan is sentenced to suffer an indeterminate penalty of six (6) years and one (1) day of prision mayor, as minimum, to fourteen
(14) years, eight (8) months and one (1) day of reclusion temporal, as maximum, with all the accessory penalties.

(2) Tangan is ordered to pay the victims heirs P50,000.00 as civil indemnity, P42,000.00 as funeral and burial expenses, P5,000.00 as
attorneys fees, and P50,000.00 as moral damages.

SO ORDERED.

G.R. No. L-45100 October 26, 1936

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
EPIFANIO DIOKNO and ROMAN DIOKNO, defendants-appellants.

Ramon Diokno and Gabriel N. Trinidad for appellants.

Office of the Solicitor-General Hilado for appellee.

VILLA-REAL, J.:

Epifanio Diokno and Roman Diokno appeal to this court from the judgment of the Court of First Instance of Laguna, the dispositive part of
which reads as follows:

In view of the foregoing considerations, the court finds the accused Epifanio Diokno and Roman Diokno guilty of the crime of
murder, beyond a reasonable doubt, and sentences each of them to reclusion perpetua, to indemnify jointly and severally the
heirs of the deceased in the sum of P1,000 and to pay the costs of the suit. It is so ordered.

In support of their appeal, the appellants assign the following alleged errors as committed by the court a quo in its judgment in question, to
wit:

1. The lower court erred in accepting Exhibit E as evidence.

2. The lower court erred in admitting Exhibit K as evidence.

3. The lower court erred in not acquitting the appellant Roman.

4. The lower court erred in sentencing the appellant Epifanio to reclusion perpetua.

The following facts have been proven beyond a reasonable doubt during the trial:

The deceased Yu Hiong was a vendor of sundry goods in Lucena, Tayabas. At about 7 o'clock in the morning of January 4, 1935, Salome
Diokno, to whom Yu Hiong was engaged for about a year, invited the latter to go with her. Yu Hiong accepted the invitation but he told
Salome that her father was angry with him. Salome answered him: "No matter, I will be responsible." At about 6 o'clock in the afternoon of
said day, Yu Hiong and Salome Diokno took an automobile and went to the house of Vicente Verina, Salome's cousin, in Pagbilao. As they
found nobody in the house, they went on their way up to San Pablo, Laguna. On January 5th or 6th of said year, Roman Diokno
telegraphed his father Epifanio Diokno, who was in Manila, informing him that Salome had eloped with the Chinese Yu Hiong. On the
morning of January 7, 1935, Epifanio Diokno and Roman Diokno went to San Pablo, Laguna, in search of the elopers. Having been informed
that the latter were stopping at the house of Antonio Layco, they went there. Upon arriving near the house, they saw Yu Hiong coming
down the stairs. When Yu Hiong saw them, he ran upstairs and they pursued him. As the Chinese found the door of the house locked, he
shouted that it be opened for him. At that moment, he was overtaken by the accused who carried knives locally known as balisong, of
different sizes. Yu Hiong fell on his knees and implored pardon. In that situation Roman Diokno stabbed him with the knife in the back and
later in the left side. Epifanio Diokno also stabbed him once. Yu Hiong fell on the landing of the stairs in the balcony, and there he was
again stabbed repeatedly. Then Roman Diokno said: "Enough, father." Yu Hiong lost consciousness. Juan Alcantara, who lived on the same
street, Hermanos Belen, in front of Antonio Layco's house, saw the accused pursue Yu Hiong and fired shots for the police to come. Upon
hearing the shots, municipal policeman Francisco Curabo appeared and found Yu Hiong pale and lying on the landing of the stairs. He
then asked who had wounded the Chinese and the accused Epifanio Diokno answered that it was he. The policeman took the knife
(Exhibit C) which Epifanio Diokno carried in his right hand and brought him to police headquarters. Roman Diokno had left before the
policeman arrived and he was not located until after three days. The municipal president of San Pablo, Laguna, also went to the scene of
the crime, found the Chinese almost unconscious and questioned him, putting down his answers in Exhibit E. The Chinese was brought to
the provincial hospital of San Pablo where he was examined by Drs. David Evangelista and Manuel Quisumbing, who found that he had
five incised wounds in different parts of the body, one of them at the back and about three and a half inches long, piercing the pleura and
penetrating the lower lobe of the right lung about an inch, which wound was necessarily mortal and which caused the death of the victim.
On January 8, 1935, while the said Chinese was in a serious condition in the hospital, he made a statement telling how he was attacked by
the accused (Exhibit K).

The accused, testifying as witnesses in their own behalf, stated that they had not gone to San Pablo together on the day in question; that
when Roman Diokno arrived, his father Epifanio Diokno was coming down the stairs of Antonio Layco's house with a knife in his hand; that
Epifanio Diokno told his son Roman to go home and tell their relatives what had happened; that when Epifanio Diokno overtook Yu Hiong
on the landing of the stairs of Antonio Layco's house, he asked Yu Hiong whether he was willing to marry his daughter; that the Chinese
answered him in the negative and at the same time tried to take something from his pocket; that as Epifanio knew that Yu Hiong carried a
revolver, he feared the Chinese might harm him; he became obfuscated, drew his knife and knew not what happened afterwards.

The first question to be decided in the present appeal is whether or not the court a quo erred in admitting as evidence Exhibit E, consisting
in the investigation conducted by the municipal president of San Pablo in the same place where Yu Hiong had fallen a few minutes before,
at about 1.30 p. m. on January 7, 1935, and wherein Yu Hiong, answering the questions asked by said municipal president, stated that it
was Ramon Diokno and Epifanio Diokno who had wounded him.

It is argued by the defense that said document Exhibit E should not be admitted on the ground that some words had been altered and
because it has not been proven that declarant had a sense of impending death.

It does not appear that said document was altered after it had been signed, but on the contrary, municipal president Jacinto Peñaflor,
upon being cross-examined by the defense, declared that he neither erased any word nor put another in its place after said document
had been finished.

The fact that Yu Hiong failed to state that he had given up all hope of life, in answering the municipal president's questions, does not make
his declaration inadmissible. It is enough if, from the circumstances of the case, it can be inferred with certainty that such must have been
his state of mind (People vs. Chan Lin Wat, 50 Phil., 182). In the present case, Yu Hiong was semiconscious as a result of the wounds
received by him and, consequently, he could not have the hope to live when he made his declaration immediately after he was mortally
wounded. But even if the document Exhibit E were not admissible as an ante mortem declaration, it is admissible as a part of the res
gestæbecause it was made under circumstances so proximate to the incident that it may be considered as a part thereof.
(People vs. Portento and Portento, 48 Phil., 971; People vs. Palamos, 49 Phil., 601.)

The first assignment of alleged error is, therefore, untenable.

With respect to the second assignment of alleged error consisting in that the court a quo erred in admitting Exhibit K as an ante
mortem declaration of Yu Hiong, because it does not appear that when the declarant made it he was aware of impending death and
that he did not die until three days after making it, all that has been said relative to Exhibit E, which is the subject matter of the first
assignment of alleged error, may be repeated in connection with said Exhibit K, in the sense that it is admissible as an ante
mortem declaration. Furthermore, when the deceased made the declaration Exhibit K, he complained of great difficulty in breathing and
of being very ill. The fact that he did not die until three days later neither implies that he had no sense of impending death when he made
his declaration because he did not improve thereafter but became worse until he died; nor detracts from its character of an ante
mortem declaration because what gives the declaration such character is the declarant's conviction, upon making it, that he is not going
to live (U. S. vs. Mallari, 29 Phil., 14).

The third assignment of alleged error consists in the failure of the court a quo to acquit the appellant, Roman Diokno.

The testimony of the eyewitnesses Juan Alcantara and Antonio Layco corroborated by the different dimensions of the wounds which,
according to Dr. Manuel Quisumbing, were caused by two instruments of different sizes, and the ante mortem declarations (Exhibits E and
K) of the deceased, leave no room for doubt that Roman Diokno cooperated with his father and stabbed the deceased Yu Hiong with a
knife in different parts of the body. Furthermore, the deceased stated in his ante mortem declaration (Exhibit K) that it was Roman Diokno
who inflicted the necessarily mortal wound in his back, which caused his death.

We find the fourth assignment of alleged error well founded. The circumstance of abuse of superior strength, qualifying the crime of murder,
which the trial court found to have been proven, has not been established beyond a reasonable doubt. In the case of United States vs.
Devela (3 Phil., 625), this court said that "the mere fact that the number of the assailants is superior to that of those attacked by them is not
sufficient to constitute the aggravating circumstance of abuse of superiority." In this case we have the photographs of the body of the
deceased (Exhibits D and D-1) showing that he had a strong constitution: but there is no evidence of the physical constitution of the
accused Epifanio Diokno and Roman Diokno. Therefore, we cannot determine whether or not said accused were physically stronger than
the deceased and whether or not they abused such superiority.

Neither does this court find the existence of the other circumstance qualifying murder, that is, evident premeditation, proven beyond a
reasonable doubt because, even assuming that both the accused went to San Pablo, Laguna, each carrying the knife used by him in
attacking Yu Hiong, it being customary for the people of said province to carry it, it cannot be inferred with certainty from the mere fact
that they carried knives that their intention in going to San Pablo was to look for the deceased in order to kill him. In order that
premeditation may be considered either as an aggravating circumstance or as a qualifying circumstance, it must be evident, that is, the
intention to kill must be manifest and it must have been planned in the mind of the offender and carefully meditated. It is not enough that it
arose at the moment of the aggression.

Therefore, there having been neither abuse of superior strength nor evident premeditation, the crime committed by the accused is simple
homicide.lâwphi1.nêt

The presence of the fifth mitigating circumstance of article 13 of the Revised Penal Code, that is, immediate vindication of a grave offense
to said accused, may be taken into consideration in favor of the two accused, because although the elopement took place on January 4,
1935, and the aggression on the 7th of said month and year, the offense did not cease while Salome's whereabouts remained unknown
and her marriage to the deceased unlegalized. Therefore, there was no interruption from the time the offense was committed to the
vindication thereof. Our opinion on this point is based on the fact that the herein accused belong to a family of old customs to whom the
elopement of a daughter with a man constitutes a grave offense to their honor and causes disturbance of the peace and tranquility of the
home and at the same time spreads uneasiness and anxiety in the minds of the members thereof.

The presence of the sixth mitigating circumstance of said article 13, consisting in having acted upon an impulse so powerful as naturally to
have produced passion or ofuscation, may also be taken into consideration in favor of the accused. The fact that the accused saw the
deceased run upstairs when he became aware of their presence, as if he refused to deal with them after having gravely offended them,
was certainly a stimulus strong enough to produce in their mind a fit of passion which blinded them and led them to commit the crime with
which they are charged, as held by the Supreme Court of Spain in similar cases in its decisions of February 3, 1888, July 9, 1898, February 8,
1908, May 25, 1910, July 3, 1909, and in other more recent ones.

The seventh circumstance of article 13 of the Revised Penal Code, consisting in having surrendered himself immediately to the agents of
persons in authority, should also be taken into consideration in favor of the accused Epifanio Diokno.

In view of the foregoing considerations, this court concludes that the accused are guilty beyond a reasonable doubt of the crime of
homicide defined and punished in article 249 of the Revised Penal Code, the penalty prescribed therein being reclusion temporal in its full
extent. Three mitigating circumstances must be taken into consideration in favor of the accused Epifanio Diokno and two in favor of the
accused Roman Diokno, with no aggravating circumstance, thus authorizing the imposition of the penalty next lower to that prescribed by
law (reclusion temporalin its full extent), or prision mayor in its full extent, in the period that this court deems applicable, which is the medium
period in this case, in accordance with the provisions of article 64, rule 5, that is eight years and one day ofprision mayor.

Both accused should be granted the benefits of the indeterminate sentence provided in Act No. 4103, as amended by Act No. 4225, which
prescribes a penalty the minimum of which shall be taken from that next lower to prision mayor, or prision correccional of from six months
and one day to six years. Taking into account the circumstances of the case, the indeterminate penalty to which each of said accused
must be sentenced is fixed at from two years and one day of prision correccional to eight years and one day of prision mayor, crediting
each with one-half of the time during which they have undergone preventive imprisonment (art. 29, Revised Penal Code).

Wherefore, this court declares the accused Epifanio Diokno and Roman Diokno guilty of the crime of homicide and sentences each of
them to an indeterminate penalty from two years and one day of prision correccional to eight years and one day of prision mayor,
crediting them with one-half of the time during which they have undergone preventive imprisonment, and to indemnify the heirs of the
deceased in the sum of P1,000, with the costs of both instances. So ordered.

G.R. No. L-32042 December 17, 1976

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ALBERTO BENITO y RESTUBOG accused-appellant.

RESOLUTION

AQUINO, J.:

Alberto Benito was sentenced to death by the Circuit Criminal Court of Manila after he pleaded guilty to the charge of murder for having
shot with a .22 caliber revolver Pedro Moncayo, Jr. on December 12, 1969. The killing was qualified by treachery and aggravated by
premeditation and disregard of rank. It was mitigated by plea of guilty.

After a mandatory review of the death sentence, this Court in its decision of February 13, 1975 affirmed the judgment of conviction. It
appreciated in Benito's favor the mitigating circumstance of voluntary surrender. The penalty was reduced to reclusion perpetua. (People
vs. Benito, 62 SCRA 351).

Benito filed a motion for reconsideration. He contends that he is entitled to the mitigating circumstance of immediate vindication of a
grave offense and that the aggravating circumstances of disregard of rank should not be appreciated against him.
Benito, 26, a native of Naga City, in his sworn statement , which was taken, about five hours after the shooting, by Corporal E. Cortez and
Patrolmen J. de la Cruz, Jr., and
H. Roxas of the Manila Police, recounted the background and circumstances of the tragic incident in this manner (Exh. A):

... alam ninyo ho, ako ay dating empleyado ng Civil Service Commission sa kalye P. Paredes, Sampaloc, Maynila, at ako
ay Clerk 2 sa Administrative Division at ako ay nagumpisa ng pagtratrabaho sa Civil Service magmula pa noong
November, 1965 ng ako ay nasuspende sa aking trabaho dahil kinargohan nila ako ng "DISHONESTY" at nasuspende ako
ng 60 days at nabalik ako sa trabaho noong January 1966 pero kinarguhan uli nila ako ng "MALVERSARTION OF PUBLIC
FUNDS, QUALIFIED THEFT, ESTAFA at FALSIFICATION OF PUBLIC DOCUMENT at dinimanda din ako ng Civil Service ng
Administrative case ng "DISHONESTY" at dinismiss na ako sa trabaho ni Commissioner Subido noong February 16, 1966.

At magmula noon ay nawalan na ako ng trabaho pero lahat ho noong kinargo nila sa akin na sinabi ko sa inyo ay
"fabricated" lang ang mga evidensiya at ang gumawa ho noong ay ang binaril ko kanina na si PEDRO MONCAYO JR. Y
RAMOS at naka pending pa ngayon sa City Fiscal ng Maynila kay Asst. Fiscal Magat at iyon namang "dismissal order" ni
Commissioner Subido ay inapela ko sa Civil Service Board of Appeals.

Magmula noong Idinismiss nila ako sa aking trabaho dahil sa "fabricated" charges ay naghirap na ko sa aking buhay at
nahihiya ako sa mga kaibigan ko. Ako ay assign(ed) sa collecting department noon at nagagalit sa akin ang mga
empleyado ng Civil Service dahil mahigpit ako sa kanila.

Noong bandang alas 7:00 ng gabi noong Dec. 11, 1969, ako ay nagpunta sa Civil Service sa kalye Paredes at nakita ko
si PEDRO MONCAYO, Jr. at kinausap ko siya at tinanong ko siya na iyong kaso ko ay matagal na at hindi pa natatapos
at baka matulungan niya ako at ang sagot niya ay "UMALIS KA NA NGA DIYAN BAKA MAY MANGYARI PA SA IYO AT
BAKA IPAYARI KITA DITO" at umalis na ko.

Kaninang bandang alas 11:00 ng umaga ay nagkita kami ni PEDRO MONCAYO Jr. sa loob ng compound ng Civil
Service at sa harapan ng maraming tao sinabi niya na "NAGIISTAMBAY PALA DITO ANG MAGNANAKAW" kaya ang
ginawa ko ay umalis na ako.

Kaninang bandang alas 5:25 ng hapon, nitong araw na ito, Desiyembre 12, 1969, nakita ko si PEDRO MONCAYO Jr. na
nagmamanejo noong kotse niya sa kalye P. Paredes sa tapat ng Civil Service, sinundan ko siya at pagliko ng kotse niya
sa kanto ng P. Paredes at Lepanto, Sampaloc, Maynila, ay binaril ko siya ng walong beses at tinamaan siya at
napatumba siya sa kaniyang upuan sa kotse.

Pagkatapos ay tumawag ako sa telepono sa MPD Headquarters para sumurender at kayo nga ang dumating kasama
ninyo iyong mga kasama ninyo.

Benito surrendered to the police the revolver (Exh. C) used in the shooting with the eight empty shells of the bullets which he had fired at
Moncayo.

The Police report contains the following background and description of the killing (Exh. B):

According to the suspect, he was a former employee of the Civil Service Commission at its main office located at P.
Paredes, Sampaloc. Mla., and was assigned as Clerk 2 in the Administrative Division from Nov. 1963 continuously up to
Nov. 1965 when he was suspended for "DISHONESTY".

After two months, he was reinstated but was criminally charged for QUALIFIED THEFT, MALVERSATION OF PUBLIC FUNDS,
ESTAFA and FALSIFICATION OF PUBLIC DOCUMENTS and administratively charged for "DISHONESTY" culminating in his
dismissal from the Civil Service on February 1966.

The aforecited criminal charges against the suspect was allegedly investigated by Asst. Fiscal MAGAT. Records from the
CRID, MPD, reveals that on Dec. 6, 1966, Hon. Judge ROAN of the City Court of Mla. issued a Warrant No. E-316758 for
the arrest of the suspect for the crime of ESTAFA.

On May 24, 1969, Hon. Judge JUAN O. REYES of the CFI of Mla. issued an order No. OA-87409 for the arrest of the suspect
for the crime of MALVERSATION OF PUBLIC FUNDS. According to the suspect, the aforecited criminal and administrative
charges filed him were allegedly instigated and contrived by the victim and since the time of his dismissal, he was
allegedly jobless.

On Dec. 11, 1969, the suspect went to the Civil Service at P. Paredes st. and requested the victim to help him in his cases
but the former allegedly uttered to the suspect "UMALIS KA NGA DIYAN BAKA MAY MANGYARI PA SA IYO AT BAKA
IPAYARI KITA DITO".

The suspect left and returned the following morning at 11:00 a.m. of Dec. 12, 1969, and when they met again, the victim
allegedly remarked in the presence of many people, "NAGIISTAMBAY PALA DITO ANG MAGNANAKAW". The suspect who
was humiliated and incensed, left.
 At about 5:25 p.m. of that same day, Dec. 12, 1969, the suspect who was armed with an unlicensed Cal. 22 black
revolver (w/ SN - P-5317, Trademarked "SENTINEL", SQUIRES BINGHAM MFG. CO. INC. MLA. P.I.) loaded with nine (9) live
Cal. 22 bullets in its cylinder, waited for the victim outside the Civil Service compound at P. Paredes st. Sampaloc, Mla.

The victim showed up and drove his green Chevrolet 2 door car (w/ Plate No.
L-10578 Mla. 69) along P. Paredes st. The suspect with evident premeditation, surreptitiously followed the victim and when
the latter's car was at a full stop at the corner of Lepanto and P. Paredes sts. due to heavy traffic of motor vehicles, the
suspect without any warning or provocation, suddenly and treacherously shot the victim eight (8) times on the head and
different parts of the body at closer range which consequently caused the latter's death on the spot inside his car.

The suspect then fled while the victim was conveyed on board a red private car (w/ Plate No. L-55117) by his co-
employees (composed of VICTOR VILLAR, ELEUTERIO MENDOZA & FORTUNATO JOSE Jr.) to the FEU Hospital.
Unfortunately, the victim was pronounced DOA by Dr. P. PAHUTAN, SOD, at 5:40 p.m. of Dec. 12, 1969.

The thirty-six year old victim, a certified public accountant, was the Assistant Chief of the Personnel Transactions Division and Acting Chief,
Administrative Division of the Civil Service Commission (Exh. E to E-2). The accused was a clerk in the cash section, Administrative Division of
the Commission, receiving P1,884 per annum (Exh. D). He started working in the Commission on November 7, 1963.

On October 21, 1965 Moncayo, as an administrative officer, reported to the Commissioner of Civil Service that Benito admitted having
malversed an amount between P4,000 and P5,000 from his sales of examination fee stamps. Moncayo's report reads as follows (Exh. F):

MEMORANDUM for
The Commissioner
Through Proper Channels

This refers to the case of Mr. ALBERTO R. BENITO, Clerk II in the Administrative Division of this Commission, who, as had
previously been reported, malversed public funds in the amount of approximately P5,000.00 out of his collections from
the sale of examination fee stamps.

I wish to state that this matter came to my attention on the evening of March 1, 1965 when Mr. Teodoro Abarquez,
Acting Cashier I, reported to me that fifty (50) money orders at P2.00 each with a total vlaue of P100.00 were missing
from a bundle of money orders received from the Provincial Treasurer of Cotabato, which were kept by him in one of the
cabinets inside the Cashier's Cashier' room.

At the same time he also informed me that he suspected that Mr. Benito stole the missing money orders. His suspicion
arose from the fact that he found several money orders marked "Cotabato" as their place of issue among the cash
receipts turned over to him by Mr. Benito that afternoon as his collection from the sale of examination fee stamps. Mr.
Abarquez showed to me the said money orders issued in Cotabato which were turned over to him by Mr. Benito and
after checking their serial numbers with the records of list of remittances on file, we were able to establish definitely the
fact that the said money orders were those missing.

It may be stated that at that time, Mr. Benito was assigned to work in the Cash Section and one of his duties was to sell
examination fee stamps to applicants for examinations. It was then the practice of the cashier to issue to Mr. Benito in
the morning examination fee stamps to be sold during the day and in the afternoon he turned over to the Cashier the
proceeds from the sale of stamps including the unsold stamps issued to him. After considering the work performed by Mr.
Benito, it became evident that he succeeded in malversing the amount of P100.00 by substituting equivalent amount of
money orders in the place of the cash extracted by him from his daily collections from the sale of examination fee
stamps when he clears his accountability with the Cashier.

The following day, I confronted Mr. Benito in the presence of Mr. Abarquez and ask him whether he had something to do
with the loss of the fifty (50) money orders at P2.00 each. At first he denied, but when I asked him where he obtained the
money orders issued in Cotabato which were included in his collections the day preceding, he admitted having stolen
the missing money orders.

Having confessed his guiltk, I then asked Mr. Benito when he started committing the said irregularity and how much in all
did he actually malversed out of his daily collections from the time that he started the anomaly. He stated in the
presence of Mr. Abarquez that he started in January, 1965 and that although he did not know exactly the total amount
malversed by him, he believed the amount to be between P4,000.00 to P5,000.00. He also confessed that he used the
money orders remitted by the Provincial Treasurer of Negros Occidental in the amount of P3,436.00 in substituting various
amounts extracted by him from his daily cash collections and used by him for personal purposes.

It appears from the records that the List of Remittances covering the money orders received from the Provincial Treasurer
of Negros Occidental was duly receipted by Mr. Benito. He was supposed to issue an Official Receipt therefor in favor of
the said Provincial Treasurer and then turn over to the Cashier the amount involved for deposit to the National Treasurer.
The said List of Remittances, duly signed by Mr. Benito, is enclosed for use as evidence in this case.
 I told Mr. Benito that I cannot do anything but report the matter to the Commissioner. However, he pleaded that he be
given first an opportunity to restore the amount before I make my report in order that the penalty that may be imposed
upon him may be lessened to a certain degree. As I thought it wise in the interest of the service to recover the amount
involved, I allowed him to go and see his parents in Naga City to raise the amount in question.

After two weeks, Mr. Benito informed me that his parents filed an application for a loan with the Government Service
Insurance System and that the proceeds of the said loan which he intended to use in restoring the amount malversed by
him were expected to be released during the last week of May, 1965. However, when the month of May, 1965 elapsed
without the amount involved having been restored, I conferred with Mr. del Prado, my immediate superior and asked
him whether we should wait further for the release of the said loan in order that the amount involved may be recovered.
Mr. Prado consented to giving him a little more time.

When Mr. Benito still failed to restore the amount in question by the end of June, 1965, I got hold of him on July 5, 1965
and together with Messrs. del Prado, Abarquez and Gatchalian, also of this Commission, brought him before Deputy
Commissioner A. L. Buenaventura and reported the entire matter to the Deputy Commissioner. In the presence of Messrs.
del Prado, Abarquez, Gatchalian and myself, Mr. Benito admitted readily and voluntarily before the Deputy
Commissioner the commission of the offense of malversation of public funds as stated above.

In view of the foregoing, it is recommended that Mr. Benito be charged formally and that he be suspended from office
immediately considering the gravity of the offense committed by him.

(Sgd.) PEDRO R. MONCAYO

Administrative Officer II

Benito was charged with dishonesty. He had admitted to Deputy Commissioner Alipio Buenaventura that he had misappropriated his
collections and spent the amount in nightclubs and pleasure spots and for personal purposes. The decision dismissing him from the service
reads as follows (Exh. G):

This is an administrative case against Mr. Alberto R. Benito, Clerk I, Cash Section, Administrative Division of this Office, for
dishonesty.

The following excerpts from the letter dated October 22, 1965 of the Commissioner of Civil Service connect respondent
with the alleged misappropriation of public funds representing his collection from the sale of examination fee stamps
and constitute the basis of the instant case against him:

An investigation made by this Commission shows that you malversed public funds in the amount of
P3,536.00 out of your collections from the sale of examination fee stamps while in the performance of
your official duties as Clerk II in the Cash Section, Administrative Division of this Office. It appears that
you succeeded in malversing the above-stated amount from your cash collections by substituting in
lieu thereof money orders worth P3,436.00 remitted to this Commission by the Provincial Treasurer of
Negros Occidental which were duly receipted for by you. It also appears that you extracted from a
bundle of money orders remitted by the Provincial Treasurer of Cotabato the amount of P100.00 in
money orders which were kept in one of the cabinets in the Cashier's room.

Respondent denied the charge. He explained, among others, that money orders were always kept in the Cashier's safe
and he had no access to them. Although he admitted having received money orders amounting to P3,436.00 remitted
by the Provincial Treasurer of Negros Occidental and another remittance of the Provincial Treasurer of Cotabato he,
however, disclaimed having substituted the same for cash collections in his sale of examination fee stamps. He reasoned
out further that he could not be charged with malversation of public funds inasmuch as he was not then an
accountable officer.

It appears that respondent, as Clerk in the Cash Section, performs, among other duties, the selling of examination fee
stamps, receiving payments therefor, and receiving remittances in form of cash and/or money orders from provincial
treasurers in connection with examinations held in the provinces. It was also his duty to issue official receipts for said
remittances. In the course of the performance of his duties, he received said remittances from the Provincial Treasurers of
Negros Occidental and Cotabato, but no official receipts were issued by him, as shown by the reply telegrams
pertaining thereto. While records disclose that remittances from the province of Cotabato were submitted to the Cashier
of the Civil Service Commission, there is no evidence showing that remittances from Negros Occidental were likewise
submitted.

Investigation further reveals that 50 money orders were discovered missing from the remittances of Cotabato Provincial
Treasurer which were kept in the cabinet of the Cashier. On or about March 2, 1965, the Cashier of the Commission
noticed that 15 money orders turned over by respondent as part of his collections in the sale of examination fee stamps
were among the missing money orders. This triggered off the filing of this case against the respondent.

On July 5, 1965, respondent admitted before the then Deputy Commissioner Alipio Buenaventura having
misappropriated an aggregate amount ranging from P3,000 to P7,000, which he spent in night clubs, pleasure spots and
 other personal benefits. Despite the testimonies of several witnesses regarding his confession, including that of the then
Deputy Commissioner himself, respondent, when asked to take the stand, denied his previous admission.

Instead, he argued that the cash and accounts of the Cashier of the Civil Service Commission, when examined by
representatives of the Auditor's Office, did not indicate any shortage and therefore there was no irregularity involved.
This argument is not well taken. Inasmuch as the remittances received by respondent from said Provincial Treasurers of
Negros Occidental and Cotabato were not in turn given corresponding official receipts, naturally, the same were not
reflected on the Cashier's cash book.

The weakness of respondent's defense lies not so much on its failure to establish convincingly his innocence as its
irreconciliability with established facts. Obviously, none of the circumstances in this case is consistent with his claim of
innocence. On the contrary, all of them put together produce reasonable assurance of respondent's guilt.

In view of the foregoing, this Office finds respondent Alberto R. Benito guilty as charged. Wherefore, he is dismissed from
the service effective upon his receipt of this decision.

In the interest of the service this decision is executed also on the date of his receipt of this decision.

Benito appealed to the Civil Service Board of Appeals from the Commissioner's decision dismissing him. The appeal was pending at the
time when he assassinated Moncayo (Exh. I).

The foregoing antecedents of the assassination shed light on the remark which the victim, Moncayo, allegedly made upon seeing Benito in
the compound of the Civil Service Commission near the canteen at eleven o'clock in the morning of December 12, 1969 (about six hours
before the shooting): "Nagiistambay pala dito and magnanakaw." (Exh. A or 1); or, as Benito testified, Moncayo said: "Hindi ko alam na
itong Civil Service pala ay istambayan ng magnanakaw." (27 tsn December 26, 1969).

Mitigating circumstance of immediate vindication of a grave offense. — Benito contends that Moncayo insulted him when he (Moncayo)
remarked that a thief was loitering in the premises of the Civil Service Commission. Benito argues that that remark "was tantamount to
kicking a man already down and to rubbing salt into a raw wound" and that, as it was made publicly and in a loud voice, he was exposed
to ridicule in the presence of his officemates.

Benito attached to his motion a copy of the decision of Judge Jose C. Colayco dated January 16, 1975, acquitting him of the charge of
malversation in connection with his alleged misappropriation of the fees collected from the examinees of the 1974 patrolman examination.
That same decision makes reference to Benito's exoneration from the administrative charge. The court's decision reads as follows:

The accused is charged with malversation under the following information:

That on or about and during the period comprised between October 17, 1964, to February, 1965,
inclusive, in the City of Manila Philippines, the said accused being then employed as Clerk I of the Civil
Service Commission, a branch of the government of the Republic of the Philippines, among whose
duties were to accept payments of fees collected from the examinees of the 1964 Patrolman
examination, and by reason of his said position received the total amount of P3,536.00, with the duty
to turn over and/or account for his collections to the cashier of the Civil Service Commission
immediately or upon demand but the said accused once in possession of the said amount of
P3,536.00, with intent to defraud, despite repeated demands made upon him to turn over and to
account for the same, did then and there willfully, unlawfully and feloniously misappropriate, misapply
and convert and malverse the said amount to his own personal use and benefit, to the detriment of
public interest and to the damage and prejudice of the said Civil Service Commission in the said
amount of P3,536.00, Philippine currency.

Contrary to law.

The evidence shows that the accused had an appointment as clerk in the Civil Service Commission from May 27, 1964,
as clerk I, range 23 from June 1, 1965 and as clerk I, range 26 from July 23, 1965 (Exhibits A, A-1, A-2). He had the duty,
among others, of selling Civil Service examination- fee stamps and to receive payment therefor, as well as to receive
remittances of money orders and checks from the provincial treasurers for payments of examination fee stamps (Exhibit
B).

Teodoro Abarquez, a cashier of the Civil Service Commission during the period alleged in the information, testified in his
direct examination that Benito was working in his office; that one of the duties that he assigned to him was to sell
examination fee stamps; that it was customary for him to give stamps to Benito at the start of office hours in the morning
and that Benito turned over to him the proceeds of the sale, as well as the unsold stamps, at the close of office hours in
the afternoon; that one afternoon he noticed that Benito turned over to him 50 money orders from Cotabato, together
with some cash, as proceeds of the sale of stamps for that day; that he remembered that he was missing money orders
from one of his cabinets where he kept them; that when he discovered that the 50 money orders were those which were
missing, he reported the matter to Pedro Moncayo, the chief administrative officer; on March 1, 1965; that the money
orders were for P2.00 each, and were payments of the examination fees from Cotabato (Exhibit F); that he discovered
 the loss of the 50 money orders on February 28, 1965 and reported it to Moncayo on March 1, 1965, together with the list
of missing orders (Exhibit M); that after receiving the report, Moncayo called Benito to the office of Abarquez where he
admitted taking the missing money orders; that Moncayo submitted a memorandum to the Commissioner, dated
October 21, 1965, after giving Benito a chance to refund the value of the money orders (Exhibit O). Alipio Buenaventura,
acting Deputy Commissioner at the time, and Eliseo S. Gatchalian, budget officer, testified that when Benito was
confronted with the report of Moncayo and Abarquez, he admitted that he misappropriated about P3,000.00 because
of bad company and that he asked for a chance to refund the money.

Under cross-examination, Abarquez elucidated his testimony in his direct examination and explained that when Benito
turned over the proceeds of the sale of stamps for that particular day, he kept the sum of P100.00 and replaced it with
the 50 money orders that he had taken from the cashier's office to cover up the money that he had pocketed. When he
was asked when he discovered that Benito substituted the 50 money orders from Cotabato, he answered that he
checked them the following night (March 2, 1965) with the list of money orders remitted by the Provincial treasurer
(Exhibits F, F-1); but when he was confronted with his affidavit which he executed on April 18, 1966 (Exhibit R), he
reluctantly admitted that he had only verified 15 money orders missing as of April 18, 1966 and that he did not keep any
record of the money and the money orders given to him by Benito on March 1, 1965.

He also admitted that the room where he kept the money orders in an unlocked drawer was also occupied by two other
persons, and that this was the first time that he had not followed the usual procedure of keeping them in the safe. He
further admitted that, although regular examinations were conducted during the period of October 1, 1964 to February
28, 1965 by the examiners of the Civil Service Commission and the auditors of the General Auditing Office, they did not
find any shortage in the accounts of Benito.

Finally, when the Court asked him what happened to the 50 money orders, at first he hinted that they were not
deposited with the Bureau of Treasury because they were reported missing; but when pressed further, he said that he
deposited them, but did not issue any official receipt for them. When asked if he had any evidence to show that they
were actually deposited, he admitted that he could not even remember when he deposited them.

The testimony of Teodoro Abarquez upon which the prosecution has built its case, is too weak and shaky to sustain a
finding of guilt because of his glaring inconsistencies, contradictions and gaps in memory. The prosecution has failed to
present convincing evidence that the 50 money orders were even lost: According to Abarquez he had only verified the
loss of 15 on April 18, 1966, although he testified earlier that he determined the loss of 50 the night after March 1, 1965.

The examiners of the Civil Service Commission and the auditors of the General Auditing Office did not find any irregularity
in the cash accountability of Benito, according to Abarquez. This was corroborated by Romeo Jarabelo, auditor of the
Commission on Audit and Miguel Games, auditing examiner assigned to the Civil Service Commission, who testified for
the accused. Benito was in fact exonorated the administrative charge filed against him for the time same
transaction (Exhibit E).

In fact, the testimony of Abarquez under cross-examination that he has not issued any official receipt for the 50 money
orders and his inability to prove that he deposited them with the bureau of Treasury gives rise to the suspicion that other
persons, not the accused, may have stolen the 50 missing money orders. Even without taking into account the testimony
of the accused, who denied the testimonies of the witnesses for the prosecution, the court believes that the prosecution
has failed to prove the guilt of the accused.

WHEREFORE, judgment is hereby rendered acquitting the accused, with costs de oficio.

The Solicitor General argues that the defamatory remark imputed to Moncayo cannot give rise to the mitigating circumstance of
vindication of a grave offense because it was not specifically directed at Benito. The prosecution notes that the remark was uttered by
Moncayo at eleven o'clock in the morning. According to Benito's testimony (not consistent with his confession), he saw Moncayo three
hours later or at two o'clock in the afternoon and inquired from him about his case and Moncayo said that he had already submitted his
report and he could not do anything more about Benito's case (26 tan). As already stated, the assassination was perpetrated at around
five o'clock in the afternoon of the same day.

Assuming that Moncayo's remark was directed at Benito, we see no justification under the circumstances recited above for changing our
prior opinion that the mitigating circumstance of "haber ejecutado el hecho en vindicacion proxima de una ofensa grave, causada al
autor del delito," cannot be appreciated in Benito's favor. As aptly stated by the ponente, Justice Esguerra, Benito "had more than
sufficient time to suppress his emotion over said remark if he ever did resent it."

"La apreciacion de la proximidad queda al arbitrio del tribunal; el Tribunal Supremo (de España) no ha apreciado la proximidad ... cuando
la ofensa se realizo por la mañana y el delito tuvo lugar por la tarde (Sentencia de 11 noviembre 1921); por regla general no es proxima
cuando transcurre tiempo suficiente para la razon recobre su imperio sobreponiendose a la pasion (Sentencias de 28 mayo 1882, 4
noviembre 1893, 24 junio 1908, etc.) ... Si falta el requisito de la proximidad debe desestimarse (Sentencia de 3 julio 1950). Exige gravedad
en la ofensa y proximada en la reaccion." (Note 9, 1 Cuello Calon, Derecho Penal. 1975 Ed., p. 564).

The Spanish Supreme Court also held that "no puede apreciarse esta circunstancia atenuante en favor del autor de un homicidio
cometido 'algunas horas despues de haberle invitado el interfecto a renir y golpeado en el pecho con las manos', porque el tiempo
transcurrido entre los golpes y la muerte fue suficiente para que el animo del reo se serenase (Sentencia de 24 Junio 1908, Gaceta 28
Agosto 1909, IV-V Enciclopedia Juridica Española 1182).

The six-hour interval between the alleged grave offense committed by Moncayo against Benito and the assassination was more than
sufficient to enable Benito to recover his serenity. But instead of using that time to regain his composure, he evolved the plan of liquidating
Moncayo after office hours. Benito literally ambushed Moncayo just a few minutes after the victim had left the office. He acted with
treachery and evident premeditation in perpetrating the cold-blooded murder.

The facts of the case strongly suggest that what really impelled Benito to assassinate Moncayo was not the latter's alleged defamatory
remark that the Civil Service Commission compound was a hangout for a thief or for thieves but the refusal of Moncayo to change his
report so as to favor Benito. Benito did not act primarily to vindicate an alleged grave offense to himself but mainly to chastise Moncayo for
having exposed the alleged anomalies or defraudation committed by Benito and for obstinately refusing to change his report.

Aggravating circumstance of disregard of rank.— Benito contends that disregard of rank should not be considered against him because
there was no evidence that he "deliberately intended to offend or insult the rank" of Moncayo. That contention has no merit.

It should be borne in mind that the victim was a ranking official of the Civil Service Commission and that the killer was a clerk in the same
office who resented the victim's condemnatory report against him. In that situation, the existence of the aggravating circumstance of
"desprecio del respeto que por la dignidad mereciere el ofendido" is manifest.

The instant case is similar to a case where the chief of the secret service division killed his superior, the chief of police (People vs. Hollero, 88
Phil. 167) and to the killing of the acting Spanish consul by his subordinate, the chancellor of the consulate, who had misappropriated the
funds of the consulate, which misappropriation was discovered by the victim (People vs. Martinez Godinez, 106 Phil, 597, 606). In these two
cases the murder was aggravated by disregard of rank.

WHEREFORE, the motion for reconsideration is denied.

SO ORDERED.

[G.R. Nos. 62295-96. March 22, 1984.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ROMEO PACOT Y BABAD, Defendant-Appellant.

The Solicitor General for Plaintiff-Appellee.

Victor N. Alimurung (Counsel de Oficio), for Defendant-Appellant.

SYLLABUS

1. CRIMINAL LAW; MITIGATING CIRCUMSTANCES; VOLUNTARY SURRENDER; REQUISITES THEREOF; CASE AT BAR. — In order that the mitigating
circumstance of voluntary surrender may be properly appreciated in favor of the accused, it must appear that (a) he had not been
actually arrested; (b) he surrendered himself to a person in authority or his agent; and (c) his surrender is voluntary, which circumstances are
not present in this case (People v. Molo, 88 SCRA 22). For, while appellant did not try to escape, he did nothing to place himself in the
custody of authorities.

2. ID.; ID.; PASSION AND OBFUSCATION; CANNOT BE INVOKED WHEN NOT PRODUCED BY ANY UNLAWFUL AND SUFFICIENT ACT ON THE PART
OF THE CIVIL VICTIMS; CASE AT BAR. — The mitigating circumstance of passion and obfuscation cannot also be invoked in favor of
appellant considering that this relationship with Yolanda, the common-law wife of Noel Siozon, is illegitimate. The victims did not do
anything which were unlawful and sufficient to produce the passion and obfuscation contemplated by law. Appellant’s claim that
Yolanda kicked him in the genital area was not corroborated; and even if true, the same could not have resulted in depriving him of
reason that has driven him to kill Yolanda and Dennis, and to almost kill Dianne.

DECISION

RELOVA, J.:

Automatic review of the decision dated March 15, 1982 of the then Circuit Criminal Court of Cebu City in Criminal Cases Nos. CCC-XIV-
2539-Cebu, for Murder; CCC-XIV-2541-Cebu, for Murder; and CCC-XIV-2542-Cebu, for Frustrated Murder, the dispositive portion of which
reads:jgc:chanrobles.com.ph

"WHEREFORE, the Court finds the accused Romeo Pacot guilty beyond reasonable doubt of the crime of MURDER charged in Criminal
Case No. 2539. Finding the presence of the following aggravating circumstances: disregard of sex; (2) dwelling; (3) abuse of confidence or
obvious ungratefulness; (4) abuse of superior strength; and (5) evident premeditation, while only the mitigating circumstance of plea of
guilty serves to extenuate the crime, the Court is constrained to sentence, as it hereby sentences, the accused to suffer the extreme
penalty of death, with the accessories of the law; to indemnify the heirs of the deceased Yolanda Margate in the sum of P12,000.00, and to
pay the costs.

"As to Criminal Case No. 2541, while We find the presence of the following aggravating circumstances: (1) disregard of the tender age of
the offended party; (2) dwelling; (3) abuse of confidence or obvious ungratefulness; (4) abuse of superior strength; and (5) evident
premeditation, only the mitigating circumstance of plea of guilty serves to extenuate the crime. Consequently, the accused Romeo Pacot
should be, as he is, hereby sentenced to suffer the extreme penalty of death, with the accessories of the law; to indemnify the heirs of the
deceased Dennis Siozon in the sum of P12,000.00, and to pay the costs.

"As to Criminal Case No. 2542, while We find the presence of the following aggravating circumstances: (1) evident premeditation; (2) abuse
of superior strength; (3) disregard of tender age and sex; and (4) dwelling, only the mitigating circumstance of plea of guilty serves to
extenuate the crime. Consequently, the accused Romeo Pacot should be, as he is, hereby sentenced to the indeterminate penalty of,
from EIGHT (8) YEARS and ONE (1) DAY of prision mayor, as minimum, to FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of
reclusion temporal, as maximum, with the accessory penalties of the law; to indemnify the offended party Diane Siozon in the sum of
P5,000.00, without subsidiary imprisonment in case of insolvency; and to pay the costs." (pp. 97-98, Rollo)

Records show that the victim Yolanda Margate is the common-law wife Noel Siozon who is married to Ophelia Ofinado. In 1970, Ophelia
left Noel taking their daughter with her. Subsequently, he met Yolanda Margate who became his common-law wife and with whom he has
two (2) children, namely: Diane and Dennis. After three (3) years, they left Tacloban City and moved to Cebu City where they established
their new residence at Oliva Street. It was on July 21, 1980 when appellant Romeo Pacot, 23 years old, a native of Butuan City and a civil
engineering student at the Cebu Institute of Technology, met Yolanda. Appellant fell in love with Yolanda whom he found to be still single
but has two (2) children with her common-law husband, Noel a businessman from Tacloban City.

According to appellant, by August 1980, Yolanda agreed to go out with him — to the beach, to the movies and, at times, to dinner. He
found her also showing signs of affection for him and, on August 15, 1980, in a moviehouse, he proposed and she accepted him.
Thereafter, they had frequent dates, specially at times when Noel was out of town for business which was often.

On October 1, 1980, appellant and Yolanda had their first intercourse at the D’ Inn Hotel and thereafter they would meet as often as four
times a week. About four months after, or in February 1981, Noel came to know about the love affair of appellant and Yolanda and he
confronted Romeo who promised not to see Yolanda again. However, according to Romeo, Yolanda continued to call him by phone and
so in March 1981 their relationship was again resumed. The matter was brought to the attention of Barrio Captain Jose Navarro upon
complaint of Noel that appellant was always pestering them, courting Yolanda and following her wherever she went. The barrio captain
was able to settle the matter when he suggested that appellant leave Cebu City so that his relationship with Yolanda would be cut off.
Pacot promised to leave Cebu City for Butuan City. It was sometime in July 1981 when appellant returned to Cebu and, upon meeting
Yolanda at the Seiko Service Center, they went to Queensland Hotel where they made love and, thereafter, at the Siozon residence,
whenever Noel left for Tacloban City.

On October 14, 1981, appellant went to the Siozon residence at about 2:00 in the afternoon, using the back door as suggested by Yolanda
over the telephone. Yolanda and Dennis were asleep while Diane and the maid Delia were watching the television. Yolanda woke up and
asked Diane for the time. As the clock was in the kitchen, Diane went down and saw that it was 2:14. On her way back, Diane saw
appellant in the sala reading a newspaper. He followed her to the bedroom, closed the windows and turned on the air conditioning unit.
Yolanda then ordered the maid to get some refreshment, Yolanda asked appellant if he was ready to marry her. Appellant would not
commit himself giving the excuse that he was not yet economically stable and that his parents would disown him if they would know that
he is married. According to appellant, Yolanda became furious and suddenly kicked his genitals causing him to suffer in pain. He blacked
out, took the knife which was on top of the cabinet and stabbed Yolanda several times, then the children until he thought all of them had
died. However, Diane did not die and, upon regaining consciousness, she went down to open the door for the police to enter.

Three cases were filed against appellant Romeo Pacot y Babad. Upon arraignment on November 9, 1981, Pacot, assisted by counsel
pleaded "not guilty" to each of the informations filed against him. However, when the trial started on February 8, 1982, Pacot, again assisted
by counsel, moved to withdraw his plea of not guilty and to enter instead a plea of guilty. The trial court admonished him of the
consequences of a plea of guilty but, notwithstanding, he insisted in his motion which the court granted. He was re arraigned and pleaded
guilty to the three charges filed against him.

Considering the gravity of the offenses, the trial court required the prosecution to present evidence and the defense the opportunity to
prove any mitigating circumstance.chanrobles virtual lawlibrary

On March 15, 1982, the lower court rendered its decision finding Romeo Pacot guilty of each of the crimes charged and sentenced him
accordingly.

In this appeal, appellant contends that the lower court erred (1) in not giving the defendant the benefit of the mitigating circumstances of
voluntary surrender, passion, and obfuscation; (2) in holding that the aggravating circumstances alleged in the informations should be
applied against the defendant; and (3) in imposing the extreme penalty of death against the defendant.

Appellant’s claim that he is entitled to the mitigating circumstance of voluntary surrender is without merit. In order that the same may be
properly appreciated in favor of the accused, it must appear that (a) he had not been actually arrested; (b) he surrendered himself to a
person in authority or his agent; and (c) his surrender is voluntary, which circumstances are not present in this case (People v. Molo, 88 SCRA
22). For, while appellant did not try to escape, he did nothing to place himself in the custody of the authorities.

The mitigating circumstance of passion and obfuscation cannot also be invoked in favor of appellant considering that his relationship with
Yolanda, the common-law wife of Noel Siozon, is illegitimate. The victims did not do anything which were unlawful and sufficient to
produce the passion and obfuscation contemplated by law. Appellant’s claim that Yolanda kicked him in the genital area was not
corroborated; and, even if true, the same could not have resulted in depriving him of reason that has driven him to kill Yolanda and Dennis,
and to almost kill Diane.
Neither did the lower court err in appreciating the qualifying circumstance of treachery alleged in the three informations, and in
considering the sex and age of the helpless victims.

The court properly considered in his favor the mitigating circumstance of plea of guilty. Thus, the maximum penalty of death was properly
imposed in each of the cases where Yolanda and Dennis were the victims. However, for lack of necessary votes, the death penalties in
said cases are both reduced to reclusion perpetua.

WHEREFORE, in Criminal Case No. CCC-XIV-2539-Cebu, the judgment is AFFIRMED but modified in the sense that appellant is sentenced
to reclusion perpetua, to indemnify the heirs of Yolanda Margate in the sum of P30,000.00, and to pay the costs.

In Criminal Case No. CCC-XIV-2541-Cebu, judgment is AFFIRMED but modified in the sense that appellant is also sentenced to reclusion
perpetua, to indemnify the heirs of Dennis Siozon in the sum of P30,000.00, and to pay the costs.chanrobles.com:cralaw:red

In Criminal Case No, CCC-XIV-2542-Cebu, the judgment is AFFIRMED with the modification that appellant is to indemnify Diane Siozon in the
sum of P15,000.00, without subsidiary imprisonment in case of insolvency.

SO ORDERED.

[G. R. No. 140634. September 12, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERTO PANSENSOY, accused-appellant.

DECISION

CARPIO, J.:

The Case

Before this Court is an appeal from the Decision[1] dated September 13, 1999 in Criminal Case No. 94-11527 of the Regional Trial Court
of Antipolo City, Branch 73, convicting appellant Roberto Pansensoy (appellant for brevity) of the crime of murder and sentencing him to
suffer the penalty of reclusion perpetua. The trial court also ordered appellant to pay the heirs of the victim P50,000.00 as civil indemnity,
P40,000.00 as actual damages and P20,000.00 as moral damages.

The Charge

Asst. Provincial Prosecutor Rolando L. Gonzales filed an Information [2] charging appellant with the crime of murder, committed as
follows:

That on or about the 8th day of May, 1994, in the Municipality of Antipolo, Province of Rizal, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, armed with a handgun, with intent to kill and by means of treachery and evident
premeditation, did, then and there willfully, unlawfully and feloniously attack, assault and shoot one Hilario Reyes y Inovero, hitting him on
his forehead, thereby inflicting upon him a mortal gunshot wound, which directly caused his death.

CONTRARY TO LAW.

Arraignment and Plea

When arraigned on February 20, 1995, the appellant, assisted by his counsel, entered a plea of not guilty.[3] Thereafter, trial on the
merits followed.

The Trial
 The prosecution presented the following witnesses: (1) Analie Pansensoy, eyewitness to the actual shooting of the victim; (2) Dr.
Emmanuel Aranas, the medico-legal officer who conducted the autopsy on the victim; (3) SPO1 Reynaldo Anclote, the police officer who
conducted the investigation of the incident; (4) Gregoria Reyes, mother of the victim; and (5) Rogelio Fullente, neighbor of the victim. For its
part, the defense presented the appellant as its lone witness.

Version of the Prosecution

Analie Pansensoy (Analie for brevity), twenty-eight years old, is the legitimate wife of appellant. She testified that she had been living-
in with the victim, Hilario Reyes (Hilario for brevity), since February 1994.On May 8, 1994, she and Hilario were in the house they were renting
at Lumang Bayan, Antipolo, Rizal. Hilario was lying down inside the house. She stood up when she heard a knocking on the door. As she
opened the door, she saw appellant holding a gun. She embraced appellant and tried to wrest the gun away from him but she
failed. Hilario went out of the house and sat on a bench. Appellant approached Hilario and asked him if he really loves his wife. Hilario
answered in the affirmative. Appellant next asked Hilario if he was still single. Hilario answered yes. Appellant counted one to three and at
the count of three shot Hilario. Hilario was hit on the forehead and sprawled on the ground.[4]

Dr. Emmanuel Aranas, physician, conducted the autopsy on the victim at the St. James Funeral Parlor at past midnight on May 9,
1994. He found a single gunshot wound on the forehead which was the cause of death. He opined that the entry shows the area of
smudging which indicates that Hilario was shot at close range. The distance of the muzzle of the gun from the forehead could be less than
three inches. He also opined that the person who fired the shot and Hilario were facing each other.[5]

SPO1 Reynaldo Anclote, member of the Philippine National Police, conducted the investigation on the shooting of Hilario. He took the
statements of Gregoria Reyes and Analie in the police station a day after the incident. He did not conduct an ocular inspection at the
scene of the crime.[6]

Gregoria Reyes (Gregoria for brevity), mother of Hilario, testified that she came to know about the death of her son through a
neighbor, Roger. She found out that her son was dead upon arrival at the hospital and was taken to the funeral parlor. She saw the gunshot
wound on the forehead of her son. On the same night of May 8, 1994, she went to the police station where she saw Analie give her
statement to the police.She also gave her statement to the police. As a result of the death of her son, she incurred expenses in the amounts
of P10,000.00 and P30,000.00 for the funeral and the burial, respectively. At the time of his death, her son was managing two passenger
jeepneys, one of which he was also driving. He was earning P800.00 a day.[7]

Rogelio Fullente (Rogelio for brevity), fifty-six years old, is a co-driver of Hilario in the Antipolo-Marikina route. He was the neighbor
referred to by Gregoria in her testimony as Roger, who reported to her the shooting incident. He has known Hilario for ten to fifteen years. In
the evening of May 8, 1994, he was in his home in Lumang Bayan which was about ten meters away from where Hilario was
staying. According to him, their houses were separated by a driveway which could accommodate one jeep. He heard several knocks and
opened the door of his house. When he opened the door he found out that somebody wasknocking on the door of Hilario and ordering
him to come out. The first time he saw the man knocking on Hilarios door, the man was not carrying anything. When he heard a gunshot,
he opened the door again and saw the man carrying something before he left. Rogelio further narrated that when the man asked Hilario
to come out, Hilario was standing by the door. The man asked Hilario if he loved his wife and Hilario answered yes. The man then fired a
shot and Hilarios head bent forward before he fell down. He does not know the caliber of the gun but just heard the gunshot. He went to
the parents of Hilario to report the incident. On cross-examination, Rogelio testified that when appellant knocked on the door, it was Hilario
who opened the door. Hilario sat on the bench by the door. When Hilario answered yes to appellants question of whether he loved his wife,
appellant immediately fired a shot. Rogelio testified that he watched appellant fire the shot and then left to report the incident to the
parents of Hilario.[8]

Version of the Defense

As expected, the defense had a different version as told by the appellant himself.

Appellant, twenty-eight years old and a security guard, invoked self-defense in his testimony. He testified that Analie is his wife and
they have three children. According to him, their relationship as husband and wife was normal.

On May 8, 1994, at about 6:30 p.m., a certain Amadong Bisaya (Bisaya for brevity) told him that he saw his wife with their youngest
child and Tisoy, referring to Hilario, board a jeep on their way to Lumang Bayan. He had met Bisaya before when the latter told him some
time in April 1994 that he always saw appellants wife with another man. He asked Bisaya to accompany him to Lumang Bayan where
Bisaya pointed to the room where his wife and Tisoy entered.

The appellant kicked the door of the room and there he found his wife and Tisoy lying beside each other. They were only clad in their
underwear. He dragged his wife out of the room by her hair and while doing so, he saw Tisoy pull a gun from the table which was covered
with clothes. He let go of his wife and jumped on Tisoy to grab the gun.

While they struggled for possession of the gun he hit the testicles of Tisoy with his knees. Tisoy fell on his knees but was still holding the
gun. Still grappling for possession of the gun, appellant held on to the back portion of the gun and part of the trigger, while his other hand
held Hilarios hand which was holding the butt of the gun. When Hilario knelt down, appellant was able to twist Hilarios hand and to point
the barrel of the gun towards the latter.

The gun suddenly went off. At that moment, Tisoy was holding the trigger of the gun. Tisoy was shot on the head and fell down. It was
Tisoy who was holding the trigger when the gun fired and hit him on the head. Tisoy was still holding the gun when he fell to the floor.
 He confronted his wife and pulled her hair and slapped her. His wife was just seated in the corner of the room. He asked her where
their child was. But before she could answer, their child went inside the room and embraced her mother very tightly. He tried to pull their
daughter away from Analie but the latter did not let go of the child. He told Analie that he would kill her too if she did not release the
child. He started to count one, two, which made his wife release their daughter. He left the room with the child and proceeded to their
house. Tisoy was still sprawled on the ground face down when he left.[9]

The Trial Courts Ruling

The trial court accorded full faith and credence to the testimony of Analie and rejected the version of the appellant that he acted in
self-defense. It found the testimony of Analie credible and observed that she remained unperturbed during the cross-examination. The trial
court also noted that appellant, who was then a security guard, was charged by his employer with the crime of qualified theft for the loss
of a .38 caliber revolver. Appellant allegedly committed the theft on May 8, 1994, the very same day the shooting incident happened. The
gun used in shooting the victim was not found at the scene of the crime but the slug recovered was that of a .38 caliber revolver. Although
appellant was subsequently acquitted of the charge, the trial court considered this as evidence of a circumstance connected with the
crime. The trial court further noted that appellant went into hiding from the time the shooting incident happened until the case was filed in
court on August 24, 1994.

The trial court pronounced judgment thus:

WHEREFORE, premises considered, the accused is hereby found guilty beyond reasonable doubt with the crime of murder and is hereby
sentenced to the penalty of reclusion perpetua. The accused is hereby further ordered to pay the heirs of Hilario Reyes y Inovero the
amount of P50,000.00 as death indemnity and P40,000.00 and P20,000.00 as actual or compensatory and moral damages, respectively.

Costs against the accused.

SO ORDERED.[10]

Hence, the instant appeal.

The Issues

Appellant is before this Court raising the following assignment of errors:

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED.

II

THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED OF THE CRIME OF MURDER DESPITE FAILURE OF THE PROSECUTION TO
PROVE ANY OF THE QUALIFYING CIRCUMSTANCES.

The Courts Ruling

The appeal is partly meritorious.

First Issue: Self-Defense

Appellant insists that he acted in self-defense. Self-defense as a justifying circumstance may exempt an accused from criminal liability
when the following requisites are met, namely: (1) there has been an unlawful aggression on the part of the victim; (2) the means
employed to prevent or repel such aggression are reasonably necessary; and (3) the person defending himself has not provoked the victim
into committing the act of aggression.[11] The burden of proving by clear and convincing evidence that the killing was justified is on the
accused.[12] In doing so, he must rely on the strength of his own evidence and not on the weakness of that of the prosecution.[13]

Appellant asserts that the unlawful aggressor was the victim and his death could be attributed to himself alone. By his own testimony,
appellant tried to prove unlawful aggression on the part of Hilario.According to him, he kicked the door, and when it opened he saw his
wife and Hilario inside the room clad in their underwear. He pulled the hair of his wife and dragged her outside while she was embracing
him.At this point, Hilario pulled a gun from the table. He let go of his wife, jumped on Hilario and grappled for possession of the gun. While
trying to wrest the gun from Hilario, he hit Hilarios testicles with his knees.Hilario fell on the floor but was still holding the gun. When Hilario
knelt down, appellant was able to hold and twist Hilarios hand, pointing the gun towards the latter. The gun suddenly went off and Hilario
was hit on the head.

On the other hand, Analie testified that when she opened the door to their room, she saw appellant holding a gun. She embraced
appellant and tried to wrest the gun from him but failed. Hilario went out and sat on a bench. Appellant approached him and asked him
questions. Appellant counted and, at the count of three, shot Hilario in the head.

The conflicting versions of the prosecution and of the defense as to who initiated the aggression was settled by the trial court which
gave full faith and credence to the testimony of Analie over that of appellant.The trial court, which had the opportunity to observe the
demeanor of the witnesses on the stand, was convinced of the truthfulness of Analies testimony and not that of appellants.

Undeterred, appellants first assignment of error is focused on the sufficiency of the evidence for the prosecution, questioning in
particular the trial courts assessment of the credibility of the prosecutions eyewitness, Analie. According to him, Analies testimony is flawed
as she insisted that she and appellant had been separated for more than three years but this is belied by the fact that their youngest
daughter is barely a year old. He also points out that appellants version that he dragged his wife outside by pulling her hair was more
believable and in accord with human behavior rather than Analies version that appellant took time to interrogate the victim regarding
how much the latter loved his wife and other personal circumstances before shooting him.

We find no reason to reverse or alter the evaluation of the trial court. We reiterate the time tested doctrine that a trial courts
assessment of the credibility of a witness is entitled to great weight even conclusive and binding if not tainted with arbitrariness or oversight
of some fact or circumstance of weight and influence.[14] The alleged flaws in the testimony of Analie do not serve to impair her credibility
or diminish the truthfulness of her remarks as to who initiated the aggression and fired the shot.

The allegedly incredible statements do not pertain to the act of killing, but rather to minor or incidental matters which happened
before and after the fact of killing. Analies testimony that she had been separated from appellant for three years which, as pointed out by
appellant, was belied by the age of their youngest daughter, does not necessarily impair her credibility. Analies 3-year separation from
appellant does not preclude Analies still having a child with appellant. As to Analies version that appellant interrogated Hilario before
shooting him, suffice it to say that it is a matter of common observation that the reaction of a person when confronted with a shocking or
unusual incident varies.[15] As admitted by appellant himself, it was the first time he saw his wife and Hilario together, veritably confirming
what Bisaya had told him some time in April 1994 that Bisaya always saw his wife with someone else. It was not at all strange for appellant to
have asked Hilario if he really loved his wife. Were we to agree with the appellant and treat each strange or unusual event in the
occurrence of a crime, such as appellants interrogation of the victim, as basis for reasonable doubt, no criminal prosecution would
prevail.[16]

In any event, a thorough evaluation of the transcript of stenographic notes indicates that Analie, as observed by the trial court,
testified in a candid and straightforward manner as follows:

Q: Why do you know said Hilario Reyes?

A: He is my live-in partner.

Q: When did you start to be the live-in partner of Hilario Reyes?

A: February 1994.

Q: Up to what time did you become to be the live-in partner of Hilario Reyes?

A: Three months.

Q: What was the reason why your live-in relationship lasted only three months?

A: Because Roberto killed Hilario Reyes.

Q: When was this Hilario Reyes killed?

A: May 8, 1994.

Q: Where was he killed?

A: At Lumang Bayan.

Q: In what municipality?

A: Lumang Bayan, Antipolo, Rizal.

Q: How did you know that he was killed?

A: He was shot by Roberto Pansensoy.

Q: How did you know that he was shot by Roberto Pansensoy?

A: Because Roberto went there and he was holding a gun.

Q: On May 8, 1994 that you said Hilario Reyes was shot by Roberto Pansensoy, where were you?

A: Inside the house, sir.

Q: Whose is that house you are referring to?

A: We are renting that house.

Q: With whom?

A: Hilario Reyes.

Q: Before this Hilario Reyes was shot, what was he doing?

A: He was already lying down.

Q: Lying down where?

A: Inside the house, sir.

Q: How long was he lying down?

A: Around fifteen minutes.

Q: After lying down for fifteen minutes, what did you do next?

A: I stood up because Roberto knocked on the door.

Q: What happened next after this Roberto knocked on the door?

A: I opened the door and I saw Roberto holding a gun.

Q: After you opened the door and you saw Roberto holding a gun, what happened next?

A: I embraced Roberto and tried to wrestle the gun away from him but I did not succeed.

Q: When you were not able to succeed in taking the gun away from him, what happened next?

A: Hilario went out, sat on the bench and Roberto approached him.

Q: And after Hilario went out and sat on the bench and Roberto approached him, what happened next?

A: Roberto asked Hilario; do you really love my wife? And Hilario said, Yes.

Q: Who was this wife Roberto was referring to when he asked Hilario?

A: Thats me.

Q: After Hilario answered that he really loved his wife which is you that is being referred to, what happened next?

A: Roberto asked Hilario; are you still single, are you not married?

Q: What was the response of Hilario if there was any?

A: He answered yes.

Q: What happened next?

A: Roberto counted one to three and at the count of 3 he shot Hilario.

Q: Was Hilario hit by the shot that was made by Roberto?

A: Hilario was hit on the forehead and he sprawled on the ground.[17]

Analie remained straightforward and consistent all throughout her cross-examination:

Q: Madam witness, you stated that you are the wife of the accused Roberto Pansensoy, is that correct?

A: Yes, sir.

Q: Are you legally married to accused Roberto Pansensoy?

A: Yes, sir.

Q: And if you remember, when were you married?

A: 1990.

Q: Where were you married?

A: At Negros Occidental.

Q: You stated that on May 8, 1994, you were at Lumang Bayan, Antipolo, Rizal, am I correct?

A: Yes, sir.

Q: In what particular place at Lumang Bayan is that?

A: Inside the village.

 Q: What were you doing then inside the village?

A: We are renting a house there.

Q: Who is your companion while renting that house?

A: Hilario Reyes.

Q: And who is this Hilario Reyes?

A: The victim.

Q: What is your relation with the victim?

A: Live-in partner.

Q: How long have you been living in together, Madam Witness?

A: Three months.

Q: On that date May 8, 1994 you stated a while ago that you were resting together with Hilario Reyes, is that correct?

A: Yes, sir.

Q: Inside the room of the house being rented by Hilario Reyes?

A: Yes, sir.

Q: What was Hilario Reyes doing then?

A: He was laying (sic).

Q: Lying where?

A: Inside.

Q: Thereafter, what happened next while Hilario Reyes was resting?

A: I heard Roberto knock on the door.

Q: After which, what happened next, Madam Witness?

A: I opened the door and I saw Roberto.

Q: What did you do upon seeing Roberto on the door?

A: He was holding a gun and I embraced him, because I wanted to take the gun away from him.

Q: Is it not because you feel that Roberto Pansensoy might inflict harm on your living in partner, is that correct?

A: Yes, sir, I wanted to avoid trouble.[18]

From Analies testimony, it is all too apparent that the first requisite of self-defense is absent. The unlawful aggression did not come from
the victim but from appellant himself. The aggression not having come from the victim, appellants claim of self-defense cannot
prosper. The trial court relied on Analies testimony to convict appellant and we find that her testimony is sufficient to support appellants
conviction.

As the legitimate wife of appellant, Analies testimony would have been disregarded had appellant timely objected to her
competency to testify under the marital disqualification rule. Under this rule, neither the husband nor the wife may testify for or against the
other without the consent of the affected spouse, except in a civil case by one against the other, or in a criminal case for a crime
committed by one against the other or the latters direct descendants or ascendants.[19] However, objections to the competency of a
husband and wife to testify in a criminal prosecution against the other may be waived as in the case of other witnesses generally.[20] The
objection to the competency of the spouse must be made when he or she is first offered as a witness. [21] In this case, the
incompetency was waived by appellants failure to make a timely objection to the admission of Analies testimony.

We note that Rogelio was presented to corroborate Analies testimony, but he gave a rather confusing account of what he allegedly
saw or heard on the night of the shooting. During his direct examination, he claimed that he heard a gunshot, but on cross-examination he
claimed that he opened the door of his house and actually saw appellant shoot Hilario. In any event, it is well-settled that the testimony of
a lone eyewitness, if credible and positive, is sufficient to convict an accused.[22] On the other hand, a plea of self-defense cannot be
justifiably appreciated, if it is not only uncorroborated by independent and competent evidence, but also extremely doubtful by itself [23] as
in the instant case.

Moreover, appellants behavior after the incident runs contrary to his proclaimed innocence. Appellants act of fleeing from the scene
of the crime instead of reporting the incident to the police authorities are circumstances highly indicative of guilt and negate his claim of
self-defense.[24]

Lastly, we find it unnecessary to consider as corroborative evidence the charge of qualified theft for the loss of a .38 caliber revolver
filed against appellant by his employer security agency. The trial court discussed at length that the offense was committed on the same
day the shooting incident happened and that the slug recovered from the scene of the crime was from a .38 caliber revolver. According
to the trial court, while the gun was not recovered from the scene of the crime, it was safe to assume that the accused had a gun when he
went to the place of the victim. While SPO1 Anclote testified regarding the nature of the slug, he admitted that he never inspected the
scene of the crime and that the slug was merely handed to him by SPO2 Catanyag who was not presented in court to testify. Hence,
reliance on this as evidence of a circumstance connected with the crime rests on shaky ground and is superfluous in light of
Analies credible eyewitness account.

Second Issue: Passion and Obfuscation

Appellant argues for the appreciation of the mitigating circumstance of passion and obfuscation in his favor. According to appellant,
when he confirmed with his own two eyes that his wife was cheating on him, he lost his self-control and that his actuation arose from a
natural instinct that impels a husband to protect his wounded feelings. There is basis for this claim.

In order to be entitled to the mitigating circumstance of passion and obfuscation, the following elements should concur: (1) there
should be an act both unlawful and sufficient to produce such condition of mind; (2) the act which produced the obfuscation was not far
removed from the commission of the crime by a considerable length of time, during which the perpetrator might recover his normal
equanimity.[25]

Appellant was on his way home from his duty as a security guard when he met Bisaya who told him that he saw his wife and youngest
child board a jeepney with the victim, Hilario. Appellant and Bisaya followed them. Appellant claims that he saw his wife and the victim
lying beside each other, clad only in their underwear. Analie claims that they were just resting inside the house at the time appellant
arrived.Under any of these two circumstances, it is easy to see how appellant acted with obfuscation because of jealousy upon
discovering his legitimate wife in the company of another man and the brazen admission by this man that he loved his wife. The situation
was aggravated by the fact that Analie brought their child along to her trysting place with Hilario. Extreme emotional pain could result from
such a situation and produce such passion and anguish in the mind of a betrayed husband as to deprive him of self-control. To be blinded
by passion and obfuscation is to lose self-control.[26] In this case, there is a clear showing that there were causes naturally tending to
produce such powerful passion as to deprive the accused of reason and self-control.[27]

Furthermore, the act producing the obfuscation was not far removed from the commission of the crime by a considerable length of
time, during which the appellant might have regained his equanimity. It appears that only a few minutes elapsed between the time
appellant discovered the two in the room and the killing. Thus, appellant can be given the benefit of this mitigating circumstance.

Third Issue: Qualifying Circumstances

The Information alleges two qualifying circumstances: treachery and evident premeditation. If appreciated, any one of these will
qualify the killing to murder. However, the trial court convicted appellant of murder without stating the circumstance which qualified the
killing to murder.

In view of our earlier pronouncement crediting in favor of appellant the mitigating circumstance of passion and obfuscation, we
have to rule out treachery and evident premeditation as qualifying circumstances.Treachery cannot co-exist with passion and
obfuscation.[28] The reason for this is that in passion, the offender loses his control while in treachery the means employed are consciously
adopted. One who loses reason and self-control cannot deliberately employ a particular means, method or form of attack in the
execution of the crime.[29]

Similarly, the aggravating circumstance of evident premeditation cannot co-exist with the circumstance of passion and
obfuscation.[30] The essence of premeditation is that the execution of the criminal act must be preceded by calm thought and reflection
upon the resolution to carry out the criminal intent during the space of time sufficient to arrive at a composed judgment. [31]

In its Brief, the Office of the Solicitor General (OSG for brevity) submits that evident premeditation is present to qualify the killing to
murder. According to the OSG, premeditation is apparent from the fact that appellant went to the scene of the crime already carrying the
gun which he used to shoot the victim. The OSG argues that while appellant may have been a security guard, he had no legal justification
for bringing the gun to the victims residence. His act of bringing the gun to the crime scene is a clear indication of his preconceived plan to
kill his wifes lover. The elements of evident premeditation as a qualifying circumstance are: (1) the time when the offender determined to
commit the crime; (2) an act manifestly indicating that the culprit has clung to his determination; and (3) a sufficient lapse of time between
the determination and execution, to allow him to reflect upon the consequences of his act and to allow his conscience to overcome the
resolution of his will.[32]

Verily, a finding that there was a preconceived plan to kill would negate passion and obfuscation.

However, nothing in the records shows how and when appellant hatched his plan to kill, or how much time had elapsed before
appellant carried out his plan. On the contrary, appellant was on his way home from his duty as a security guard when he chanced upon
Bisaya who told him that he saw his wife and child with Hilario. The mere fact that he brought his gun along or happened to have it in his
person does not, by itself, necessarily indicate a preconceived plan to kill. The carrying of arms, if customary, does not indicate the
existence of the second requisite. In People vs. Diokno,[33] the Court held that the accused being from the province of Laguna and it being
customary on the part of the people of Laguna to carry knives, it cannot be inferred with certainty that the intention of the accused who
carried knives was to look for the deceased in order to kill him. In like manner, it cannot be inferred with certainty that appellant already
had the intention to kill Hilario when appellant carried his gun on his way home after his duty as a security guard.

Fourth Issue: Damages and Penalty

 In view of the foregoing, the crime proven in this case is not murder, but only homicide [34] with the mitigating circumstance of passion
and obfuscation. The penalty for homicide under Article 249 of the Revised Penal Code is reclusion temporal. With the mitigating
circumstance of passion and obfuscation, the penalty which may be imposed pursuant to the second paragraph of Article 64 of the
Revised Penal Code is reclusion temporal in its minimum period. Appellant is entitled to the benefit of the Indeterminate Sentence Law as
well, which allows the imposition of an indeterminate sentence, with the minimum period within the range of the penalty next lower to that
prescribed by law and the maximum period within the range of the latter after appreciating any modifying circumstances. Appellant can
thus be sentenced to an indeterminate penalty ranging from eight (8) years of prision mayor as minimum to fourteen (14) years and eight
(8) months of reclusion temporal as maximum.[35]

As for damages, the trial court ordered appellant to pay the heirs of the victim the following amounts: P50,000.00 as indemnity;
P40,000.00 as actual damages; P20,000.00 as moral damages; and to pay the costs.

Consistent with prevailing jurisprudence, we sustain the award of P50,000.00 to the heirs of Hilario. The amount is awarded without
need of proof other than the commission of the crime[36] and the consequent death of the victim.

An appeal in a criminal proceeding throws the whole case open for review and it becomes the duty of this Court to correct any error
in the appealed judgment, whether it is made the subject of an assignment of error or not.[37] Therefore, we delete the award of P40,000.00
as actual damages. To seek recovery of actual damages, it is necessary to prove the actual amount of loss with a reasonable degree of
certainty, premised upon competent proof and on the best evidence obtainable.[38] Since the prosecution did not present receipts to
prove the actual losses suffered, such actual damages cannot be awarded. We raise the award of moral damages from P20,000.000 to
P50,000.00 in line with current jurisprudence[39] for the pain wrought by Hilarios death as testified to by Gregoria, mother of the victim.[40]

The trial court overlooked the award for loss of earning capacity despite the testimony of Gregoria on her sons daily income. The
absence of documentary evidence to substantiate the claim for the loss will not preclude recovery of such loss. [41] Gregoria testified that
her son had been earning P800.00 daily as manager and driver of two passenger jeepneys.[42] This amounts to P19,200.00 monthly excluding
Sundays.The defense did not object to Gregorias testimony on her sons earning capacity. The rule is that evidence not objected to is
deemed admitted and may be validly considered by the court in arriving at its judgment. [43] It was also established that at the time of his
death, Hilario was thirty-six (36) years old.[44] Loss of earning capacity is computed based on the following formula:[45]

Net = life expectancy x Gross Annual - living expenses

Earning Income (GAI) (50% of GAI)
Capacity [2/3(80-age
at death)]
x = 2(80-36) x GAI - [50%of GAI]
3
x = 2(44) x P 230,400 - P 115,200
3
x = 88 x P 115,200
3
x = 29.33 x P 115,200

Net earning capacity = P 3,379,200.00

WHEREFORE, the judgment of Branch 73 of the Regional Trial Court of Antipolo City in Criminal Case No. 94-11527 is
MODIFIED. Appellant ROBERTO PANSENSOY is found guilty beyond reasonable doubt of the crime of HOMICIDE as defined and penalized
under Article 249 of the Revised Penal Code, instead of murder. Applying the Indeterminate Sentence Law and taking into account the
mitigating circumstance of passion and obfuscation, appellant is hereby sentenced to suffer an indeterminate penalty ranging from Eight
(8) years of prision mayor minimum, as minimum, to Fourteen (14) years and Eight (8) months of reclusion temporal minimum, as maximum.
The award of actual damages of P40,000.00 is DELETED, but appellant is ordered to pay the heirs of the victim moral damages in the
amount of P50,000.00 and loss of earning capacity in the amount of P3,379,200.00.

SO ORDERED.

[G.R. No. L-11074. February 27, 1960.]

THE PEOPLE OF THE PHILIPPINES, plaintiff and appellee, v. RUFELINO ZAPATA and FERNANDICO TUBADEZA, defendants and appellants.

Ernesto P. Laurel for Appellant.

Solicitor General A. Padilla and Solicitor General I. C. Borromeo for Appellee.

SYLLABUS

1. EVIDENCE; CREDIBILITY; MISTAKE OF WITNESSES AS TO EXACT SPOTS OF BLOWS ON DECEASED NOT FATAL TO TESTIMONY. — The two eye-
witnesses who testified that they saw one of the accused beat the deceased on the back and on the nape, although the medical officer
who examined the deceased did not find any ecchymosis, discoloration or laceration at the back and nape, could not be expected to
tell the exact spots where the blows had landed, considering that it was nighttime and those fleeting moments cannot be recalled with
exact precision.

2. MURDER; PRINCIPALS BY DIRECT PARTICIPATION; ACTS THAT INDICATE UNITY OF PURPOSE. — Where one of the accused accompanied the
other in going to the houses of the deceased, held both hands of the deceased while his co-accused was hitting her and pulled the
deceased by the hands while his co-accused continued clubbing her, there was clearly a concert of design between the two accused or
unity of purpose in the execution of the act. Hence, both were principals.

3. ID.; AGGRAVATING CIRCUMSTANCES; DISREGARD OF SEX AND AGE WHERE DECEASED WAS FRAIL AND OLD WOMAN. — Where the
evidence positively demonstrates that the accused disregarded the age and sex of the deceased, it appearing that she was a frail
woman 65 years of age, weighing only around 100 pounds and only 4 feet 8 inches in height, while the accused were young men, the
aggravating circumstance of disregard of sex and age should be considered against them.

4. ID.; MITIGATING CIRCUMSTANCES; OBFUSCATION DUE TO BELIEF OF ACCUSED THAT DECEASED WAS A WITCH. — The mitigating
circumstances of obfuscation should be appreciated in favor of the accused who committed murder in the belief that the deceased had
cast a spell of witchcraft upon the wife of one of them which caused her serious illness.

DECISION

ENDENCIA, J.:

Appeal from the decision of the Court of First Instance of Abra convicting Rufelino Zapata and Fernandico Tubadeza of the crime of
murder, as principal and accomplice, respectively, and sentencing the former to reclusion perpetua, and the latter to an indeterminate
penalty of from 6 years, 1 month and 11 days of prisión mayor, as minimum, to 12 years, 5 months and 11 days of reclusión temporal, as
maximum, both to indemnify the heirs of the deceased in the sum of P6,000.

It appears from the evidence on record that on the evening of February 15, 1951, at about eight o’clock, while Fausta Tubadeza, a
sexagenarian, was cutting firewood near her house at the barrio of Camcamiring, municipality of Dolores, Abra, appellants Rufelino Zapata
and Fernandico Tubadeza approached her, and Zapata, after telling her ‘You are the old woman who bewitched my wife," repeatedly
beat her with a piece of wood about 2 1/2 feet long and 3 inches in diameter, on different parts of her body, while Fernandico Tubadeza
dragged her by the arms. Her husband Mariano Bondame, also a sexagenarian, attracted by the noise outside their house, looked out of
the window and saw his wife being dragged by Fernandico Tubadeza and clubbed by Rufelino Zapata. Mariano Bondame immediately
set to go down to help his wife, but Zapata met him at the stairs and threatened him bodily harm should he intervene. Bondame helplessly
saw his wife being beaten and dragged towards the direction of the house of councilor Simeon Tubadeza. Bondame then went to the
house of Estanislao Elvena to ask for help and followed appellants to the house of councilor Tubadeza, where he saw his wife already
sprawled on the yard uttering, "I am going to die now," so he approached and embraced her. Fausta then told her husband she had been
maltreated and that some of her teeth were broken.

The evidence further shows that Fausta was taken to the house of councilor Tubadeza, who told appellant Zapata and one Florencio Pilor
to go to Fausta’s house, and upon their return they brought a bottle of wine and a bottle of oil and told the councilor, "Here are the
ingredients for witchcraft that we took from her house." The councilor then wrote on a piece of paper (Exhibit A) a statement that Fausta
practiced witchcraft on Zapata’s wife and had the same thumbmarked by Fausta. Likewise Bondame was forced to sign it. Fausta died
that same evening at the house of councilor Tubadeza.

Dr. Paterno Millare who made a post-mortem examination of Fausta’s body, found that the cause of her death was:jgc:chanrobles.com.ph

"Fracture, compound, complicating, Rib 5th, postero-lateral portion, right; Hemorrhage, internal, acute; Wound, lacerated, lung, right; and
Contusion, multiple and ecchymosis, abrasion evulsion, teeth, upper incisor, canine, jaw, left, and etc."cralaw virtua1aw library

Appellant Fernandico Tubadeza submitted a defense of alibi, attempting to show that on the night of February 15, 1951, he was in Bantay,
Ilocos Sur, in the house of the parents of his wife; while Rufelino Zapata offered the following defense: That on the night in question, his wife
Carolina Mercurio was seriously ill; that in view of the barking of dogs and whining of pigs in his yard he, went down and saw Fausta
Tubadeza, who had a reputation in their barrio of being a witch, run away; that while he was chasing her, she fell face down; that when he
overtook her, she confessed that she had bewitched his wife, whereupon Zapata took her to the house of councilor Simeon Tubadeza; that
the latter, being a near relative of Fausta and ashamed of her admission of having practiced witchcraft, kicked her a number of times in
her right side; that councilor Tubadeza then ordered appellant Zapata to fetch her husband Mariano Bondame, and when Bondame
arrived and knew of his wife’s admission, he became angry and also kicked her a number of times on the right side, below the armpit; and
that councilor Tubadeza then wrote affidavit Exhibit A whereby Fausta assumed responsibility should Zapata’s wife die.

By and large, the issue in this appeal is credibility of witnesses.

Referring to the alibi put up by Fernandico Tubadeza, we give it little or no evidence at all not only because this kind of defense can be
fittingly conceived and conveniently adjusted to suit any time and place ad libitum but that his witnesses are all his relatives. On the other
hand, prosecution witnesses Salvador Turqueza, Relito Claro and Mariano Bondame positively identified and pointed him as the one who
dragged the deceased while his co-defendant Rufelino Zapata clubbed her.

Appellant Zapata’s defense that the deceased died from the hands of Simeon Tubadeza, Florendo Pilor and her own husband Mariano
Bondame, who all kicked her, is likewise unworthy of belief. Although it is true that, originally, Simeon Tubadeza and Florendo Pilor were
included as defendants in the complaint filed before the justice of the peace, upon reinvestigation of the case, however, the same was
dismissed as against them for lack of evidence and the fiscal had to exclude them from the information. Besides, Mariano Bondame was
not among those originally indicted. It is hard to believe that Mariano Bondame, the aged husband of the deceased, would ever attempt
to harm his wife, let alone kick her several times in the presence of many people, just for the flimsy reason of having admitted that she was
a witch. On the contrary, Bondame positively testified that he tried in vain to rescue his wife from the hands of appellants when he saw her
being beaten up, only to be confronted by Zapata at the stairs and threatened with bodily harm.
Zapata further contends that prosecution witnesses Salvador Turqueza and Relito Claro who testified having seen him beat the deceased
on the back and on the nape, did not tell the truth because Dr. Millare contradicted them by saying that he did not find any ecchymosis,
discoloration or laceration at the back and nape. We do not, however find any inconsistency between the two versions, rather they
complement each other, for while these eye witnesses said that they saw appellant Zapata beat the deceased on the back, Dr. Millare, in
his post-mortem examination found:jgc:chanrobles.com.ph

"External: The body is cold and in rigor mortis. The height is about 4 ft. and 8 inches. The weight is about 100 pounds more or less. There is
presence of contusions and abrasions with ecchymosis on the left face and with avulsion of the teeth, upper incisor and canine, left upper
jaw. Presence of a compound complicating fracture of the 5th rib at the right postero-lateral portion of the chest wall. Presence of
contusions on the anterior portions of the legs and thighs.

"Internal: On opening the chest wall, there is a fracture, compound, complicating, of the 5th rib, right, postero-lateral portion of the chest;
with wound, lacerated on the right lung and internal hemorrhage of the right-lung. There is approximately 150 cc of unclotted blood on the
right chest cavity. Heart and left lung are apparently normal"

which evidently shows that the deceased was beaten mercilessly not only on the head but also on different parts of the body as shown by
the avulsion of the teeth, abrasions and ecchymosis on the left face, the compound fracture of the 5th rib, on the postero-lateral portion.
These two eyewitnesses could not be expected to tell the exact spots where the blows had landed, considering that it was nighttime and
those fleeting moments cannot be recalled with exact precision. At all events, both witnesses are agreed that it was appellant Zapata who
clubbed the deceased.

The Solicitor-General points out that Fernandico Tubadeza should not be held merely as an accomplice as found by the lower court but as
coprincipal, because.

"It is to be observed that while it may be true as the trial court has stated, that ‘there is no showing in what manner Fernandico took part in
the torture, so much so that the evidence discloses that only the accused Rufelino Zapata was provided with a club,’ yet the established
facts that (a) Fernandico accompanied Zapata in going to the house of the deceased; (b) he held both hands of the deceased while
Zapata was hitting her and (c) he pulled the deceased by the hands while Zapata continued clubbing her clearly show the existence of
concert of design between the two. At any rate, even granting that there existed no previous understanding between the two appellants,
yet it may be implied from the acts of Fernandico, as stated above, that they had the same unity of purpose in the execution of the act
(People v. Ging Sam, Et. Al. 94 Phil., 139; People v. Binasing, Et Al., 98 Phil., 902).

We agree with the Solicitor-General.

We likewise agree with his observation that evident premeditation is not present in this case, but that abuse of superior strength should be
taken in its stead as the qualifying circumstance for murder, considering that the deceased was a frail and undersized woman
sexagenarian.

As to the aggravating circumstances of disregard of sex and age and nocturnity alleged in the information, we find that while the
evidence fails to show that nighttime was purposely sought by appellants to commit the crime, it positively demonstrates that they
disregarded the age and sex of the deceased, it appearing that she was a frail woman of 65, weighing only around 100 pounds and only 4
feet and 8 inches in height, while Zapata and Tubadeza were 32 and 27 years of age, respectively, when the crime was committed.

On the other hand, we believe that appellants are entitled to the mitigating circumstance of lack of intention to commit so grave a wrong
as that committed, as it was evident that they merely wanted to denounce her as a witch before councilor Tubadeza when she was
beaten and dragged to the councilor’s house, but that she received a beating more than she could take, for which she died that same
evening. In addition, the mitigating circumstance of obfuscation should be appreciated in their favor, as we so held in U. S. v. Macalintal, 2
Phil., 448, and People v. Balneg, Et Al., 79 Phil., 805, for it clearly appears that appellants committed the crime in the belief that the
deceased had cast a spell of witchcraft upon the wife of Zapata which caused her serious illness.

Considering that there are two mitigating circumstances as against one aggravating in the case, appellants are entitled to the minimum
penalty prescribed by Art. 248 of the Revised Penal Code which is reclusión temporal in its maximum period. Applying the Indeterminate
Sentence Law, the penalty that should be imposed is 10 years and 1 day of prisión mayor as minimum, and 17 years, 4 months and 1 day of
reclusión temporal as maximum.

With the above modifications, the decision appealed from is affirmed in all other respects.

RUJJERIC Z. PALAGANAS,[1] G.R. No. 165483

Petitioner,
Present:

PANGANIBAN, C.J.
Chairperson,
YNARES-SANTIAGO,
AUSTRIA-MARTINEZ,

CALLEJO, SR., and

- versus -
CHICO-NAZARIO, JJ.
 Promulgated:

September 12, 2006

PEOPLE OF THE PHILIPPINES,

Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

For what is a man, what has he got?

If not himself, then he has naught.
To say the things he truly feels;
And not the words of one who kneels.
The record shows I took the blows -
And did it my way!

The song evokes the bitterest passions. This is not the first time the song My Way[2] has triggered violent behavior resulting in people coming
to blows. In the case at bar, the few lines of the song depicted what came to pass when the victims and the aggressors tried to outdo
each other in their rendition of the song.

In this Petition for Review on Certiorari[3] under Rule 45 of the Revised Rules of Court, petitioner Rujjeric Z. Palaganas prays for the
reversal of the Decision of the Court of Appeals in CA-G.R. CR No. 22689 dated 30 September 2004,[4] affirming with modification the
Decision of the Regional Trial Court (RTC), Branch 46, of Urdaneta, Pangasinan, in Criminal Cases No. U-9608, U-9609, and U-9610 and U-
9634, dated 28 October 1998,[5] finding petitioner guilty beyond reasonable doubt of the crime of Homicide under Article 249 of the Revised
Penal Code, and two (2) counts of Frustrated Homicide under Article 249 in relation to Articles 6 and 50 of the same Code.

On 21 April 1998, petitioner and his older brother, Ferdinand Z. Palaganas (Ferdinand), were charged under four (4)
separate Informations[6] for two (2) counts of Frustrated Murder, one (1) count of Murder, and one (1) count for Violation of COMELEC
Resolution No. 2958[7] relative to Article 22, Section 261, of the Omnibus Election Code,[8] allegedly committed as follows:

CRIMINAL CASE NO. U-9608

That on or about January 16, 1998, in the evening at Poblacion, Manaoag, Pangasinan and within the
jurisdiction of this Honorable Court, the above-named accused armed with an unlicensed firearm, with intent to kill,
treachery and evident premeditation, conspiring together, did then and there willfully, unlawfully and feloniously shoot
SERVILLANO FERRER, JR. y Juanatas, inflicting upon him gunshot wound penetrating perforating abdomen, urinary
bladder, rectum bullet sacral region, the accused having thus performed all the acts of execution which would have
produced the crime of Murder as a consequence, but which nevertheless, did not produce it by reason of the causes
independent of the will of the accused and that is due to the timely medical assistance rendered to
said Servillano J. Ferrer, Jr. which prevented his death, to his damage and prejudice.

CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the Revised Penal Code, as amended.

CRIMINAL CASE NO. U-9609

 That on or about January 16, 1998, in the evening at Poblacion, Manaoag, Pangasinan and within the
jurisdiction of this Honorable Court, the above-named accused armed with an unlicensed firearm, with intent to kill,
treachery and evident premeditation, conspiring together, did then and there willfully, unlawfully and feloniously shoot
MICHAEL FERRER alias Boying Ferrer, inflicting upon him gunshot wound on the right shoulder, the accused having thus
performed all the acts of execution which would have produced the crime of murder as a consequence, but which
nevertheless, did not produce it by reason of the causes independent of the will of the accused and that is due to the
medical assistance rendered to said Michael Boying Ferrer which prevented his death, to his damage and prejudice.

CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the Revised Penal Code, as amended.

CRIMINAL CASE NO. U-9610

That on or about January 16, 1998, in the evening at Poblacion, Manaoag, Pangasinan and within the
jurisdiction of this Honorable Court, the above-named accused armed with an unlicensed firearm, with intent to kill,
treachery and evident premeditation, conspiring together, did then and there willfully, unlawfully and feloniously shoot
MELTON FERRER alias TONY FERRER, inflicting upon him mortal gunshot wounds in the head and right thigh which caused
the instantaneous death of said Melton Tony Ferrer, to the damage and prejudice of his heirs.

CONTRARY to Art. 248 of the Revised Penal Code, as amended by R.A. 7659.

CRIMINAL CASE NO. U-9634

That on or about January 16, 1998 which is within the election period at Poblacion, Manaoag, Pangasinan,
and within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully, unlawfully and
feloniously bear and carry one (1) caliber .38 without first securing the necessary permit/license to do the same.

CONTRARY to COMELEC RES. 2958 in relation with SEC. 261 of the OMNIBUS ELECTION CODE, as
amended.[9] (Underscoring supplied.)

When arraigned on separate dates,[10] petitioner and Ferdinand entered separate pleas of Not Guilty. Upon motion of
Ferdinand,[11] the four cases were consolidated and were assigned to Branch 46 of the RTC in Urdaneta, Pangasinan.[12]

The factual antecedents as viewed by the prosecution, are summarized in the Comment dated 18 April 2005 of the Office of the
Solicitor General,[13] to wit:

On January 16, 1998, around 8:00 in the evening, brothers Servillano, [Melton] and Michael, all
surnamed Ferrer were having a drinking spree in their house because [Melton], who was already living in San Fernando,
La Union, visited his three brothers and mother at their house in Sitio Baloking, Poblacion, Manaoag, Pangasinan. At 9:45 in
the evening, the three brothers decided to proceed to Tidbits Videoke bar located at the corner
of Malvar and Rizal Streets, Poblacion, Manaoag to continue their drinking spree and to sing. Inside the karaoke bar, they
were having a good time, singing and drinking beer.

Thereafter, at 10:30 in the evening, Jaime Palaganas arrived together with

Ferdinand Palaganas and Virgilio Bautista. At that time, only the Ferrer brothers were the customers in the bar. The two
groups occupied separate tables. Later, when Jaime Palaganas was singing, [Melton] Ferrer sang along with him as he
was familiar with the song [My Way]. Jaime however, resented this and went near the table of the Ferrer brothers and
said in Pangasinan dialect As if you are tough guys. Jaime further said You are already insulting me in that way. Then,
Jaime struck Servillano Ferrer with the microphone, hitting the back of his head. A rumble ensued between
the Ferrer brothers on the one hand, and the Palaganases, on the other hand. Virgilio Bautista did not join the fray as he
left the place. During the rumble, Ferdinand went out of the bar. He was however pursued by
 Michael. When Servillano saw Michael, he also went out and told the latter not to follow Ferdinand. Servillano and
Michael then went back inside the bar and continued their fight with Jaime.

Meantime, Edith Palaganas, sister of Jaime and the owner of the bar, arrived and pacified
them. Servillano noticed that his wristwatch was missing. Unable to locate the watch inside the bar, the Ferrer brothers
went outside. They saw Ferdinand about eight (8) meters away standing at Rizal Street. Ferdinand was pointing at them
and said to his companion, later identified as petitioner [Rujjeric] Palaganas, Oraratan paltog mo lara, meaning They are
the ones, shoot them. Petitioner then shot them hitting Servillano first at the left side of the abdomen, causing him to fall
on the ground, and followed by [Melton] who also fell to the ground. When Servillano noticed that [Melton] was no longer
moving, he told Michael Bato, bato. Michael picked up some stones and threw them at petitioner and Ferdinand. The
latter then left the place. Afterwards, the police officers came and the Ferrer brothers were brought to
the Manaoag Hospital and later to Villaflor Hospital in Dagupan. Servillano later discovered that [Melton] was fatally hit in
the head while Michael was hit in the right shoulder.

On the other hand, the defense, in its Appellants Brief dated 3 December 1999,[14] asserted the following set of facts:

On January 16, 1998, at around 11:00 in the evening, after a drinking session at their house, the brothers Melton
(Tony), Servillano (Junior) and Michael (Boying), all surnamed Ferrer, occupied a table inside the Tidbits Caf
and Videoke Bar and started drinking and singing. About thirty minutes later, Jaime Palaganas along with his nephew
Ferdinand (Apo) and friend Virgilio Bautista arrived at the bar and occupied a table near that of the Ferrers.

After the Ferrers turn in singing, the microphone was handed over to Jaime Palaganas, who then started to
sing. On his third song [My Way], Jaime was joined in his singing by Tony Ferrer, who sang loudly and in an obviously
mocking manner. This infuriated Jaime, who then accosted Tony, saying, You are already insulting us. The statement
resulted in a free for all fight between the Ferrers, on one hand, and the Palaganaseson the other. Jaime was mauled
and Ferdinand, was hit on the face and was chased outside of the bar by Junior and Boying Ferrer.

Ferdinand then ran towards the house of the appellant Rujjeric Palaganas, his brother, and sought the help of
the latter. Rujjeric, stirred from his sleep by his brothers shouts, went out of his house and, noticing that the van of his uncle
was in front of the Tidbits Videoke Bar, proceeded to that place. Before reaching the bar, however, he was suddenly
stoned by the Ferrer brothers and was hit on different parts of his body, so he turned around and struggled to run
towards his house. He then met his brother, Ferdinand, going towards the bar, so he tugged him and urged him to run
towards the opposite direction as the Ferrer brothers continued pelting them with large stones. Rujjeric then noticed that
Ferdinand was carrying a gun, and, on instinct, grabbed the gun from the latter, faced the Ferrer brothers and fired one
shot in the air to force the brothers to retreat. Much to his surprise, however, the Ferrer brothers continued throwing stones
and when (sic) the appellant was again hit several times. Unable to bear the pain, he closed his eyes and pulled the
trigger.

On 28 October 1998, the trial court rendered its Decision finding petitioner guilty only of the crime of Homicide and two (2) counts
of Frustrated Homicide.[15] He was, however, acquitted of the charge of Violation of COMELEC Resolution No. 2958 in relation to Section 261
of the Omnibus Election Code.[16] On the other hand, Ferdinand was acquitted of all the charges against him.[17]

In holding that petitioner is liable for the crimes of Homicide and Frustrated Homicide but not for Murder and Frustrated Murder,
the trial court explained that there was no conspiracy between petitioner and Ferdinand in killing Melton and wounding Servillano and
Michael.[18] According to the trial court, the mere fact that Ferdinand pointed to where the Ferrer brothers were and uttered to
petitioner Araratan, paltog mo lara! (They are the ones, shoot them!), does not in itself connote common design or unity of purpose to kill. It
also took note of the fact that petitioner was never a participant in the rumble inside the Tidbits Cafe Videoke Bar (videoke bar) on the
night of 16 January 1998. He was merely called by Ferdinand to rescue their uncle, Jaime, who was being assaulted by
the Ferrer brothers. It further stated that the shooting was instantaneous and without any prior plan or agreement with Ferdinand to
execute the same. It found that petitioner is solely liable for killing Melton and for wounding Servillano and Michael, and that Ferdinand is
not criminally responsible for the act of petitioner.

Further, it declared that there was no treachery that will qualify the crimes as murder and frustrated murder since
the Ferrer brothers were given the chance to defend themselves during the shooting incident by stoning the petitioner and Ferdinand.[19] It
reasoned that the sudden and unexpected attack, without the slightest provocation on the part of the victims, was absent. In addition, it
ratiocinated that there was no evident premeditation as there was no sufficient period of time that lapsed from the point where Ferdinand
called the petitioner for help up to the point of the shooting of the Ferrer brothers.[20] Petitioner was sleeping at his house at the time he
heard Ferdinand calling him for help. Immediately, petitioner, still clad in pajama and sleeveless shirt, went out of his room to meet
Ferdinand. Thereafter, both petitioner and Ferdinand went to the videoke bar where they met the Ferrer brothers and, shortly afterwards,
the shooting ensued. In other words, according to the trial court, the sequence of the events are so fast that it is improbable for the
petitioner to have ample time and opportunity to then plan and organize the shooting.

Corollarily, it also stated that petitioner cannot successfully invoke self-defense since there was no actual or imminent danger to
his life at the time he and Ferdinand saw the Ferrer brothers outside the videoke bar.[21] It noted that when petitioner and Ferdinand saw
the Ferrer brothers outside the videoke bar, the latter were not carrying any weapon. Petitioner then was free to run or take cover when
the Ferrer brothers started pelting them with stones. Petitioner, however, opted to shoot the Ferrer brothers. It also stated that the use by
petitioner of a gun was not a reasonable means to prevent the attack of the Ferrer brothers since the latter were only equipped with
stones, and that the gun was deadlier compared to stones. Moreover, it also found that petitioner used an unlicensed firearm in shooting
the Ferrer brothers.[22]

As regards the Violation of COMELEC Resolution No. 2958, in relation to Section 261 of the Omnibus Election Code, the trial court
acquitted the petitioner of the offense as his use and possession of a gun was not for the purpose of disrupting election activities.[23] In
conclusion, the trial court held:

WHEREFORE, JUDGMENT is hereby rendered as follows:

1. Under CRIM. CASE NO. U-9610, [Rujjeric] PALAGANAS is hereby CONVICTED beyond reasonable
doubt of the crime of HOMICIDE (Not Murder) with the use of an unlicensed firearm. The penalty
imposable is in its maximum period which is 20 years. The Court sentences [Rujjeric] Palaganas to suffer
the penalty of Reclusion Temporal in its maximum period or 20 years of imprisonment; and to pay the
heirs of [MELTON] Ferrer the sum of P7,791.50 as actual medical expenses of
[MELTON] Ferrer; P500,000.00 as moral damages representing unearned income of
[MELTON]; P50,000.00 for the death of [MELTON]; P50,000.00 for exemplary damages and P100,000.00
for burial and funeral expenses.

Ferdinand Palaganas is hereby ACQUITTED for failure of the prosecution to prove conspiracy and
likewise, for failure to prove the guilt of Ferdinand Palaganas beyond reasonable doubt.

2. Under CRIM. CASE NO. U-9608, [Rujjeric] PALAGANAS is hereby CONVICTED beyond reasonable
doubt of the crime of FRUSTRATED HOMICIDE (Not Frustrated Murder), with the use of an unlicensed
firearm, the Court sentences him to suffer the penalty of Prision Mayor in its maximum period or 12
years of imprisonment and to pay Servillano Ferrer the sum of P163,569.90 for his medical expenses
and P50,000.00 for exemplary damages;

Ferdinand Palaganas is ACQUITTED for failure of the prosecution to prove conspiracy and likewise, for
failure to prove the guilt of Ferdinand Palaganas beyond reasonable doubt.

3. Under CRIM. CASE NO. U-9609, [Rujjeric] PALAGANAS is hereby CONVICTED beyond reasonable
doubt of the crime of FRUSTRATED HOMICIDE (Not Frustrated Murder), with the use of an unlicensed
firearm, the Court sentences him to suffer the penalty of Prision Mayor in its maximum period or 12
years of imprisonment; and to pay Michael Ferrer the sum of P2,259.35 for his medical expenses
and P50,000.00 for exemplary damages;

Ferdinand Palaganas is ACQUITTED for failure of the prosecution to prove conspiracy and likewise, for
failure to prove the guilt of Ferdinand Palaganas beyond reasonable doubt.

Ordering accused [Rujjeric] Palaganas to pay Mrs. Elena Ferrer, the mother of the Ferrer brothers, the
amount of P100,000.00 as attorneys fees in CRIM. CASES NOS. U-9608, U-9609, U-9610.

4. Under CRIM. CASE NO. U-9634, for failure of the prosecution to prove the guilt of
[Rujjeric] Palaganas beyond reasonable doubt of the crime of Violation of COMELEC Resolution No.
2958 in relation with Section 261 of the Omnibus Election Code, the Court ACQUITS [RUJJERIC]
PALAGANAS.[24]

Aggrieved, the petitioner appealed the foregoing Decision of the RTC dated 28 October 1998, before the Court of
Appeals. In its Decision dated 30 September 2004, the Court of Appeals affirmed with modifications the assailed RTC Decision. In
modifying the Decision of the trial court, the appellate court held that the mitigating circumstance of voluntary surrender under Article
13, No. 7, of the Revised Penal Code should be appreciated in favor of petitioner since the latter, accompanied by his counsel,
voluntarily appeared before the trial court, even prior to its issuance of a warrant of arrest against him. [25] It also stated that the
Indeterminate Sentence Law should be applied in imposing the penalty upon the petitioner.[26] The dispositive portion of the Court of
Appeals Decision reads:

WHEREFORE, the judgment of conviction is hereby AFFIRMED, subject to the MODIFICATION that the penalty to
be imposed for the crimes which the appellant committed are as follows:

(1) For Homicide (under Criminal Case No. U-9610), the appellant is ordered to suffer imprisonment of ten (10)
years of prision mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as
maximum. Appellant is also ordered to pay the heirs of Melton Ferrer civil indemnity in the amount of P50,000.00, moral
damages in the amount of P50,000.00 without need of proof and actual damages in the amount of P43,556.00.

(2) For Frustrated Homicide (under Criminal Case No. U-9609), the appellant is hereby ordered to suffer
imprisonment of four (4) years and two (2) months of prision correcional as minimum to ten (10) years of prision mayor as
maximum. Appellant is also ordered to pay Michael Ferrer actual damages in the amount of P2,259.35 and moral
damages in the amount of P30,000.00.

(3) For Frustrated Homicide (under Criminal Case No. U-9608), the appellant is hereby penalized with
imprisonment of four (4) years and two (2) months of prision correcional as minimum to ten (10) years of prision mayor as
maximum. Appellant is also ordered to pay Servillano Ferrer actual damages in the amount of P163,569.90 and moral
damages in the amount of P30,000.00.[27]

On 16 November 2004, petitioner lodged the instant Petition for Review before this Court on the basis of the following
arguments:

I.
THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE JUDGMENT OF CONVICTION OF THE TRIAL COURT.

II.
THE HONORABLE COURT OF APPEALS ERRED IN NOT ACQUITTING ACCUSED-APPELLANT ON THE GROUND OF LAWFUL SELF-
DEFENSE.[28]

Anent the first issue, petitioner argued that all the elements of a valid self-defense are present in the instant case and, thus, his
acquittal on all the charges is proper; that when he fired his gun on that fateful night, he was then a victim of an unlawful aggression
perpetrated by the Ferrer brothers; that he, in fact, sustained an injury in his left leg and left shoulder caused by the stones thrown by
the Ferrer brothers; that the appellate court failed to consider a material evidence described as Exhibit O; that Exhibit O should have
been given due weight since it shows that there was slug embedded on the sawali wall near the sign Tidbits Caf and Videoke Bar; that
the height from which the slug was taken was about seven feet from the ground; that if it was true that petitioner and Ferdinand were
waiting for the Ferrer brothers outside the videoke bar in order to shoot them, then the trajectory of the bullets would have been either
straight or downward and not upward considering that the petitioner and the Ferrer brothers were about the same height (56-58); that
the slug found on the wall was, in fact, the warning shot fired by the petitioner; and, that if this exhibit was properly appreciated by the
trial court, petitioner would be acquitted of all the charges.[29]

Moreover, petitioner contended that the warning shot proved that that the Ferrer brothers were the unlawful aggressors since
there would have been no occasion for the petitioner to fire a warning shot if the Ferrer brothers did not stone him; that the testimony of
Michael in the trial court proved that it was the Ferrer brothers who provoked petitioner to shoot them; and that the Ferrer brothers
pelted them with stones even after the warning shot.[30]

Petitioners contention must fail.

Article 11, paragraph (1), of the Revised Penal Code provides for the elements and/or requisites in order that a plea of self-
defense may be validly considered in absolving a person from criminal liability, viz:

ART. 11. Justifying circumstances. The following do not incur any criminal liability:

1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur;

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself. x x x.

As an element of self-defense, unlawful aggression refers to an assault or attack, or a threat thereof in an imminent and
immediate manner, which places the defendants life in actual peril.[31] It is an act positively strong showing the wrongful intent of the
aggressor and not merely a threatening or intimidating attitude.[32] It is also described as a sudden and unprovoked attack of
immediate and imminent kind to the life, safety or rights of the person attacked.[33]
 There is an unlawful aggression on the part of the victim when he puts in actual or imminent peril the life, limb, or right of the
person invoking self-defense. There must be actual physical force or actual use of weapon.[34] In order to constitute unlawful aggression,
the person attacked must be confronted by a real threat on his life and limb; and the peril sought to be avoided is imminent and
actual, not merely imaginary.[35]

In the case at bar, it is clear that there was no unlawful aggression on the part of the Ferrer brothers that justified the act of
petitioner in shooting them. There were no actual or imminent danger to the lives of petitioner and Ferdinand when they proceeded
and arrived at the videoke bar and saw thereat the Ferrer brothers. It appears that the Ferrer brothers then were merely standing
outside the videoke bar and were not carrying any weapon when the petitioner arrived with his brother Ferdinand and started firing his
gun.[36]

Assuming, arguendo, that the Ferrer brothers had provoked the petitioner to shoot them by pelting the latter with stones, the
shooting of the Ferrer brothers is still unjustified. When the Ferrerbrothers started throwing stones, petitioner was not in a state of actual or
imminent danger considering the wide distance (4-5 meters) of the latter from the location of the former.[37] Petitioner was not cornered
nor trapped in a specific area such that he had no way out, nor was his back against the wall. He was still capable of avoiding the
stones by running away or by taking cover. He could have also called or proceeded to the proper authorities for help. Indeed,
petitioner had several options in avoiding dangers to his life other than confronting the Ferrer brothers with a gun.

The fact that petitioner sustained injuries in his left leg and left shoulder, allegedly caused by the stones thrown by
the Ferrer brothers, does not signify that he was a victim of unlawful aggression or that he acted in self-defense.[38] There is no evidence
to show that his wounds were so serious and severe. The superficiality of the injuries sustained by the petitioner is no indication that his
life and limb were in actual peril.[39]

Petitioners assertion that, despite the fact that he fired a warning shot, the Ferrer brothers continued to pelt him with
stones,[40] will not matter exonerate him from criminal liability. Firing a warning shot was not the last and only option he had in order to
avoid the stones thrown by the Ferrer brothers. As stated earlier, he could have run away, or taken cover, or proceeded to the proper
authorities for help. Petitioner, however, opted to shoot the Ferrer brothers.

It is significant to note that the shooting resulted in the death of Melton, and wounding of Servillano and Michael. With regard
to Melton, a bullet hit his right thigh, and another bullet hit his head which caused his instant death. [41] As regards Servillano, a bullet
penetrated two of his vital organs, namely, the large intestine and urinary bladder.[42] He underwent two (2) surgeries in order to survive
and fully recover.[43] Michael, on the other hand, sustained a gunshot wound on the right shoulder.[44] It must also be noted that
the Ferrer brothers were shot near the videoke bar, which contradict petitioners claim he was chased by the Ferrer brothers. Given the
foregoing circumstances, it is difficult to believe that the Ferrer brothers were the unlawful aggressors. As correctly observed by the
prosecution, if the petitioner shot the Ferrer brothers just to defend himself, it defies reason why he had to shoot the victims at the vital
portions of their body, which even led to the death of Melton who was shot at his head.[45] It is an oft-repeated rule that the nature and
number of wounds inflicted by the accused are constantly and unremittingly considered important indicia to disprove a plea of self-
defense.[46]

Let it not be forgotten that unlawful aggression is a primordial element in self-defense.[47] It is an essential and indispensable
requisite, for without unlawful aggression on the part of the victim, there can be, in a jural sense, no complete or incomplete self-
defense.[48] Without unlawful aggression, self-defense will not have a leg to stand on and this justifying circumstance cannot and will not
be appreciated, even if the other elements are present.[49] To our mind, unlawful aggression, as an element of self-defense, is wanting in
the instant case.

The second element of self-defense requires that the means employed by the person defending himself must be reasonably
necessary to prevent or repel the unlawful aggression of the victim. The reasonableness of the means employed may take into account
the weapons, the physical condition of the parties and other circumstances showing that there is a rational equivalence between the
means of attack and the defense.[50] In the case at bar, the petitioners act of shooting the Ferrer brothers was not a reasonable and
necessary means of repelling the aggression allegedly initiated by the Ferrerbrothers. As aptly stated by the trial court, petitioners gun
was far deadlier compared to the stones thrown by the Ferrer brothers.[51]

Moreover, we stated earlier that when the Ferrer brothers allegedly threw stones at the petitioner, the latter had other less
harmful options than to shoot the Ferrer brothers. Such act failed to pass the test of reasonableness of the means employed in
preventing or repelling an unlawful aggression.

With regard to the second issue, petitioner asserts that the Court of Appeals erred in not acquitting him on the ground of lawful
self-defense.

Petitioners argument is bereft of merit.

In resolving criminal cases where the accused invokes self-defense to escape criminal liability, this Court consistently held that
where an accused admits killing the victim but invokes self-defense, it is incumbent upon the accused to prove by clear and
convincing evidence that he acted in self-defense.[52] As the burden of evidence is shifted on the accused to prove all the elements of
self-defense, he must rely on the strength of his own evidence and not on the weakness of the prosecution.[53]

As we have already found, there was no unlawful aggression on the part of the Ferrer brothers which justified the act of
petitioner in shooting them. We also ruled that even if the Ferrer brothers provoked the petitioner to shoot them, the latters use of a gun
was not a reasonable means of repelling the act of the Ferrer brothers in throwing stones. It must also be emphasized at this point that
both the trial court and the appellate court found that petitioner failed to established by clear and convincing evidence his plea of
self-defense. In this regard, it is settled that when the trial courts findings have been affirmed by the appellate court, said findings are
generally conclusive and binding upon this Court.[54] In the present case, we find no compelling reason to deviate from their
findings. Verily, petitioner failed to prove by clear and convincing evidence that he is entitled to an acquittal on the ground of lawful
self-defense.

On another point, while we agree with the trial court and the Court of Appeals that petitioner is guilty of the crime of Homicide
for the death of Melton in Criminal Case No. U-9610, and Frustrated Homicide for the serious injuries sustained by Servillano in Criminal
Case No. U-9608, we do not, however, concur in their ruling that petitioner is guilty of the crime of Frustrated Homicide as regards to
Michael in Criminal Case No. U-9609. We hold that petitioner therein is guilty only of the crime of Attempted Homicide.

Article 6 of the Revised Penal Code states and defines the stages of a felony in the following manner:

ART. 6. Consummated, frustrated, and attempted felonies. Consummated felonies, as well as those which are
frustrated and attempted, are punishable.

A felony is consummated when all the elements necessary for the for its execution and accomplishment are
present; and it is frustrated when the offender performs all the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason or causes independent of the will of the perpetrator.

There is an attempt when the offender commences the commission of a felony directly by overt acts, and does
not perform all the acts of execution which should produce the felony by reason of some cause or accident other than
his own spontaneous desistance (italics supplied).

Based on the foregoing provision, the distinctions between frustrated and attempted felony are summarized as follows:

1.) In frustrated felony, the offender has performed all the acts of execution which should produce the felony as a
consequence; whereas in attempted felony, the offender merely commences the commission of a felony directly by
overt acts and does not perform all the acts of execution.
2.) In frustrated felony, the reason for the non-accomplishment of the crime is some cause independent of the will of the
perpetrator; on the other hand, in attempted felony, the reason for the non-fulfillment of the crime is a cause or
accident other than the offenders own spontaneous desistance.

In addition to these distinctions, we have ruled in several cases that when the accused intended to kill his victim, as
manifested by his use of a deadly weapon in his assault, and his victim sustained fatal or mortal wound/s but did not die because of
timely medical assistance, the crime committed is frustrated murder or frustrated homicide depending on whether or not any of the
qualifying circumstances under Article 249 of the Revised Penal Code are present.[55] However, if the wound/s sustained by the victim in
such a case were not fatal or mortal, then the crime committed is only attempted murder or attempted homicide. [56] If there was no
intent to kill on the part of the accused and the wound/s sustained by the victim were not fatal, the crime committed may be serious,
less serious or slight physical injury.[57]

Based on the medical certificate of Michael, as well as the testimony of the physician who diagnosed and treated Michael,
the latter was admitted and treated at the Dagupan Doctors-VillaflorMemorial Hospital for a single gunshot wound in his right shoulder
caused by the shooting of petitioner.[58] It was also stated in his medical certificate that he was discharged on the same day he was
admitted and that the treatment duration for such wound would be for six to eight days only.[59] Given these set of undisputed facts, it is
clear that the gunshot wound sustained by Michael in his right shoulder was not fatal or mortal since the treatment period for his wound
was short and he was discharged from the hospital on the same day he was admitted therein. Therefore, petitioner is liable only for the
crime of attempted homicide as regards Michael in Criminal Case No. U-9609.

With regard to the appreciation of the aggravating circumstance of use of an unlicensed firearm, we agree with the trial court
and the appellate court that the same must be applied against petitioner in the instant case since the same was alleged in
the informations filed against him before the RTC and proven during the trial. However, such must be considered as a special
aggravating circumstance, and not a generic aggravating circumstance.

Generic aggravating circumstances are those that generally apply to all crimes such as those mentioned in Article 14,
paragraphs No. 1, 2, 3, 4, 5, 6, 9, 10, 14, 18, 19 and 20, of the Revised Penal Code. It has the effect of increasing the penalty for the
crime to its maximum period, but it cannot increase the same to the next higher degree. It must always be alleged and charged in the
information, and must be proven during the trial in order to be appreciated. [60] Moreover, it can be offset by an ordinary mitigating
circumstance.

On the other hand, special aggravating circumstances are those which arise under special conditions to increase the penalty
for the offense to its maximum period, but the same cannot increase the penalty to the next higher degree. Examples are quasi-
recidivism under Article 160 and complex crimes under Article 48 of the Revised Penal Code. It does not change the character of the
offense charged.[61] It must always be alleged and charged in the information, and must be proven during the trial in order to be
appreciated.[62] Moreover, it cannot be offset by an ordinary mitigating circumstance.

It is clear from the foregoing that the meaning and effect of generic and special aggravating circumstances are exactly the
same except that in case of generic aggravating, the same CAN be offset by an ordinary mitigating circumstance whereas in the case
of special aggravating circumstance, it CANNOT be offset by an ordinary mitigating circumstance.

Aside from the aggravating circumstances abovementioned, there is also an aggravating circumstance provided for under
Presidential Decree No. 1866,[63] as amended by Republic Act No. 8294,[64] which is a special law. Its pertinent provision states:

If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall
be considered as an aggravating circumstance.
 In interpreting the same provision, the trial court reasoned that such provision is silent as to whether it is generic or
qualifying.[65] Thus, it ruled that when the law is silent, the same must be interpreted in favor of the accused. [66] Since a generic
aggravating circumstance is more favorable to petitioner compared to a qualifying aggravating circumstance, as the latter changes
the nature of the crime and increase the penalty thereof by degrees, the trial court proceeded to declare that the use of an
unlicensed firearm by the petitioner is to be considered only as a generic aggravating circumstance. [67] This interpretation is erroneous
since we already held in several cases that with the passage of Republic Act. No. 8294 on 6 June 1997, the use of an unlicensed firearm
in murder or homicide is now considered as a SPECIAL aggravating circumstance and not a generic aggravating
circumstance.[68] Republic Act No. 8294 applies to the instant case since it took effect before the commission of the crimes in 21 April
1998. Therefore, the use of an unlicensed firearm by the petitioner in the instant case should be designated and appreciated as a
SPECIAL aggravating circumstance and not merely a generic aggravating circumstance.

As was previously established, a special aggravating circumstance cannot be offset by an ordinary mitigating
circumstance. Voluntary surrender of petitioner in this case is merely an ordinary mitigating circumstance. Thus, it cannot offset the special
aggravating circumstance of use of unlicensed firearm. In accordance with Article 64, paragraph 3 of the Revised Penal Code, the
penalty imposable on petitioner should be in its maximum period.[69]

As regards the civil liability of petitioner, we deem it necessary to modify the award of damages given by both courts.

In Criminal Case No. U-9610 for Homicide, we agree with both courts that the proper amount of civil indemnity is P50,000.00, and
that the proper amount for moral damages is P50,000.00 pursuant to prevailing jurisprudence.[70] However, based on the receipts for
hospital, medicine, funeral and burial expenses on record, and upon computation of the same, the proper amount of actual damages
should be P42,374.18, instead of P43,556.00. Actual damages for loss of earning capacity cannot be awarded in this case since there was
no documentary evidence to substantiate the same.[71] Although there may be exceptions to this rule,[72] none is availing in the present
case. Nevertheless, since loss was actually established in this case, temperate damages in the amount of P25,000.00 may be awarded to
the heirs of Melton Ferrer. Under Article 2224 of the New Civil Code, temperate or moderate damages may be recovered when the court
finds that some pecuniary loss was suffered but its amount cannot be proved with certainty. Moreover, exemplary damages should be
awarded in this case since the presence of special aggravating circumstance of use of unlicensed firearm was already
established.[73] Based on prevailing jurisprudence, the award of exemplary damages for homicide is P25,000.00.[74]

In Criminal Cases No. U-9608 and U-9609, we agree with both courts as to the award of actual damages and its corresponding
amount since the same is supported by documentary proof therein.The award of moral damages is also consistent with prevailing
jurisprudence. However, exemplary damages should be awarded in this case since the presence of special aggravating circumstance of
use of unlicensed firearm was already established. Based on prevailing jurisprudence, the award of exemplary damages for both the
attempted and frustrated homicide shall be P25,000.00 for each.

WHEREFORE, premises considered, the decision of the Court of Appeals dated 30 September 2004 is hereby AFFIRMED with the
following MODIFICATIONS:

(1) In Criminal Case No. U-9609, the petitioner is found guilty of the crime of attempted homicide. The penalty imposable on the
petitioner is prision correccional under Article 51 of the Revised Penal Code.[75] There being a special aggravating circumstance of the use
of an unlicensed firearm and applying the Indeterminate Sentence of Law, the penalty now becomes four (4) years and two (2) months
of arresto mayor as minimum period to six (6) years of prision correccional as maximum period. As regards the civil liability of petitioner, the
latter is hereby ordered to pay Michael Ferrerexemplary damages in the amount of P25,000.00 in addition to the actual damages and
moral damages awarded by the Court of Appeals.

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

(3) In Criminal Case No. U-9610, the penalty imposable on petitioner for the homicide is reclusion temporal under Article 249 of the
Revised Penal Code.[77] There being a special aggravating circumstance of the use of an unlicensed firearm and applying the
Indeterminate Sentence Law, the penalty now is twelve (12) years of prision mayor as minimum period to twenty (20) years of reclusion
temporal as maximum period. As regards the civil liability of petitioner, the latter is hereby ordered to pay Melton Ferrer exemplary
damages in the amount of P25,000.00 in addition to the actual damages and moral damages awarded by the Court of Appeals. The
actual damages likewise awarded by the Court of Appeals is hereby reduced to P42,374.18.

SO ORDERED.

G.R. No. 135784 December 15, 2000

RICARDO FORTUNA Y GRAGASIN, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION
BELLOSILLO, J.:

Perhaps no other profession in the country has gone through incessant maligning by the public in general than its own police force. Much
has been heard about the notoriety of this profession for excessive use and illegal discharge of power. The present case is yet another
excuse for such vilification.

On 21 July 1992 at about 5:00 o’clock in the afternoon, while Diosdada Montecillo and her brother Mario Montecillo were standing at the
corner of Mabini and Harrison Streets waiting for a ride home, a mobile patrol car of the Western Police District with three (3) policemen on
board stopped in front of them. The policeman seated on the right at the front seat alighted and without a word frisked Mario. He took
Mario’s belt, pointed to a supposedly blunt object in its buckle and uttered the word "evidence."1 Then he motioned to Mario to board the
car. The terrified Mario obeyed and seated himself at the back together with another policeman. Diosdada instinctively followed suit and
sat beside Mario.

They cruised towards Roxas Boulevard. The driver then asked Mario why he was carrying a "deadly weapon," to which Mario answered, "for
self-defense since he was a polio victim."2 The driver and another policeman who were both seated in front grilled Mario. They frightened
him by telling him that for carrying a deadly weapon outside his residence he would be brought to the Bicutan police station where he
would be interrogated by the police, mauled by other prisoners and heckled by the press. As they approached Ospital ng Maynila, the
mobile car pulled over and the two (2) policemen in front told the Montecillos that the bailbond for carrying a "deadly weapon" was
₱12,000.00. At this point, the driver asked how much money they had. Without answering, Mario gave his ₱1,000.00 to Diosdada who
placed the money inside her wallet.

Diosdada was then made to alight from the car. She was followed by the driver and was told to go behind the vehicle. There, the driver
forced her to take out her wallet and rummaged through its contents. He counted her money. She had ₱5,000.00 in her wallet. The driver
took ₱1,500.00 and left her ₱3,500.00. He instructed her to tell his companions that all she had was ₱3,500.00. While going back to the car
the driver demanded from her any piece of jewelry that could be pawned. Ruefully, she removed her wristwatch and offered it to him. The
driver declined saying, "Never mind,"3 and proceeded to board the car. Diosdada, still fearing for the safety of her brother, followed and sat
beside him in the car.

Once in the car, Diosdada was directed by the policeman at the front passenger seat to place all her money on the console box near the
gearshift. The car then proceeded to Harrison Plaza where the Montecillos were told to disembark. From there, their dreadful experience
over, they went home to Imus, Cavite.

The following day Diosdada recounted her harrowing story to her employer Manuel Felix who readily accompanied her and her brother
Mario to the office of General Diokno where they lodged their complaint. Gen. Diokno directed one of his men, a certain Lt. Ronas, to assist
the complainants in looking for the erring policemen. They boarded the police patrol car and scoured the Mabini area for the culprits. They
did not find them.

When they returned to the police station, a line-up of policemen was immediately assembled. Diosdada readily recognized one of them as
the policeman who was seated beside them in the back of the car. She trembled at the sight of him. She then rushed to Lt. Ronas and told
him that she saw the policeman who sat beside them in the car. He was identified by Lt. Ronas as PO2 Ricardo Fortuna. A few minutes later,
Gen. Diokno summoned the complainants. As they approached the General, they at once saw PO2 Eduardo Garcia whom they
recognized as the policeman who frisked Mario. The following day, they met the last of their tormentors, the driver of the mobile car who
played heavily on their nerves - PO3 Ramon Pablo.

The three (3) policemen were accordingly charged with robbery. After trial, they were found guilty of having conspired in committing the
crime with intimidation of persons. They were each sentenced to a prison term of six (6) years and one (1) day to ten (10) years of prision
mayor, to restitute in favor of private complainants Diosdada Montecillo and Mario Montecillo the sum of ₱5,000.00, and to indemnify them
in the amount of ₱20,000.00 for moral damages and ₱15,000.00 for attorney’s fees.4

The accused separately appealed to the Court of Appeals. On 31 March 1997 the appellate court affirmed the lower court's
verdict.5 Accused-appellant Ricardo Fortuna moved for reconsideration but the motion was denied. Hence, this petition by Fortuna alone
under Rule 45 of the Rules of Court. He contends that the appellate court erred in holding that private complainants gave the money to
the accused under duress, the same being negated by the prosecution’s evidence, and in affirming the decision of the court below. He
argued that the evidence presented by the prosecution did not support the theory of conspiracy as against him.6

The issues raised by accused-appellant, as correctly observed by the Solicitor General, are purely factual. We have consistently stressed
that in a petition for review on certiorari this Court does not sit as an arbiter of facts. As such, it is not our function to re-examine every
appreciation of facts made by the trial and appellate courts unless the evidence on record does not support their findings or the judgment
is based on a misappreciation of facts.7 The ascertainment of what actually happened in a controverted situation is the function of the
lower courts. If we are to re-examine every factual finding made by them, we would not only be prolonging the judicial process but would
also be imposing upon the heavily clogged dockets of this Court.

We do not see any infirmity in the present case justifying a departure from this well-settled rule. On the contrary, we are convinced that the
trial and appellate courts did not err in holding that accused-appellant Fortuna conspired with the accused Pablo and Garcia in
intimidating private complainants to give them their money.

We are convinced that there was indeed sufficient intimidation applied on the offended parties as the acts performed by the three (3)
accused, coupled with the circumstances under which they were executed, engendered fear in the minds of their victims and hindered
the free exercise of their will. The three (3) accused succeeded in coercing them to choose between two (2) alternatives, to wit: to part
with their money or suffer the burden and humiliation of being taken to the police station.

To our mind, the success of the accused in taking their victims' money was premised on threats of prosecution and arrest. This intense
infusion of fear was intimidation, plain and simple.

Accused-appellant further argues that assuming arguendo that the element of intimidation did exist, the lower court erred in holding that
he conspired with his companions in perpetrating the offense charged.

This indeed is easy to assert, for conspiracy is something which exists only in the minds of the conspirators, which can easily be denied.
However, conspiracy may be detected and deduced from the circumstances of the case which when pieced together will indubitably
indicate that they form part of a common design to commit a felony; and, to establish conspiracy, it is not essential that there be actual
proof evincing that all of the conspirators took a direct part in every act, it being sufficient that they acted in concert pursuant to the same
objective.8

In the present case, accused-appellant would want to impress upon this Court that his silence inside the car during Mario’s interrogation
confirmed his claim that he did not participate in the offense.

We do not agree. As a police officer, it is his primary duty to avert by all means the commission of an offense. As such, he should not have
kept his silence but, instead, should have protected the Montecillos from his mulcting colleagues. This accused-appellant failed to do. His
silence then could only be viewed as a form of moral support which he zealously lent to his co-conspirators.1âwphi1

In one case, we ruled that in conspiracy all those who in one way or another helped and cooperated in the consummation of a felony
were co-conspirators.9 Hence, all of the three (3) accused in the present case should be held guilty of robbery with intimidation against
persons.

We however observe that the courts below failed to appreciate the aggravating circumstance of "abuse of public position." 10 The mere
fact that the three (3) accused were all police officers at the time of the robbery placed them in a position to perpetrate the offense. If
they were not police officers they could not have terrified the Montecillos into boarding the mobile patrol car and forced them to hand
over their money. Precisely it was on account of their authority that the Montecillos believed that Mario had in fact committed a crime and
would be brought to the police station for investigation unless they gave them what they demanded.

Accordingly, the penalty imposed should be modified. Under Art. 294, par. (5), of The Revised Penal Code, the penalty for simple robbery
is prision correccional in its maximum period to prision mayor in its medium period. In view of the aggravating circumstance of abuse of
public position, the penalty should be imposed in its maximum period11 while the minimum shall be taken from the penalty next lower in
degree, which is arresto mayor maximum to prision correccional medium in any of its periods the range of which is four (4) months and one
(1) day to four (4) years and two (2) months.

WHEREFORE, the Decision of the Court of Appeals which affirmed that of the trial court finding accused-appellant Ricardo Fortuna guilty of
robbery and ordering him to pay complaining witnesses Diosdada Montecillo and Mario Montecillo ₱5,000.00 representing the money
taken from them, ₱20,000.00 for moral damages and ₱15,000.00 for attorney's fees, is AFFIRMED with the modification that accused-
appellant Ricardo Fortuna is SENTENCED to the indeterminate prison term of two (2) years four (4) months and twenty (20) days of the
medium period of arresto mayor maximum to prision correccional medium, as minimum, to eight (8) years two (2) months and ten (10) days
of the maximum period of prision correccional maximum to prision mayor medium, as maximum.

Costs against accused-appellant Ricardo Fortuna.

SO ORDERED.

G.R. No. 76338-39 February 26, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RENATO TAC-AN Y HIPOS, accused-appellant.

The Office of the Solicitor General for plaintiff-appellee.

Amadeo D. Seno for accused-appellant.

FELICIANO, J.:
Accused Renato Tac-an appeals from the decision of the Regional Trial Court of Tagbilaran City, convicting him of qualified illegal
possession of a firearm and ammunition in Criminal Case No. 4007 and of murder in Criminal Case No. 4012 and imposing upon him the
penalty of death in both cases.

On 18 December 1984, appellant was charged with violation of Section 1, paragraph (2), of Presidential Decree No. 1866, committed as
follows:

That, on or about the 14th day of December 1984, in the City of Tagbilaran Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, while acting under the influence of drugs and without any license or
permit from the proper authorities, did then and there willfully, unlawfully and feloniously have ill his possession, custody
and control an unlicensed firearm, a SMITH & WESSON Airweight caliber .38 revolver with Serial Number 359323 with Five
(5) spent shells and Five (5) live ammunitions and without any justifiable cause and with intent to kill, used the said firearm
and ammunitions to shoot one Francis Ernest Escano III hitting and inflicting upon the latter the following gunshot wounds
or injuries, to wit:

MULTIPLE GUNSHOT WOUNDS — Head & Chest (through and through);

Head Entrance — 1.4 x 2.2 cm., Left Fronto-Temporal Area; Port — 1.3 x 0.3 cm.; Right Cheek. 3.5 cm.
above the right external meatus;

Chest Entrance — 0.3 x 1 cm. — Right Infrascapular Area at the level of the 7th Intercostal Rib (Back);
Exist — 0.3 cm. dia; above the right nipple;

Y-shape laceration, check at the right angle of the mouth, Right

Dimensions: 3 x 1.2 cm. x 1.8

which gunshot wounds or injuries directly caused his death, to the damage and prejudice of the Republic of the
Philippines.

Acts committed contrary to the provisions of Section 1, paragraph 2 of the Presidential Decree No. 1866. 1

On 11 January 1985, an amended information 2 for murder was also filed against appellant reading as follows:

That, on or about the 14th day of December, 1984 in the City of Tagbilaran, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, without any justifiable cause and with intent to kill, evident pre-meditation
treachery, while acting under the influence of drugs, with cruelty and deliberately augmenting the suffering of the
victim, did then and there willfully, unlawfully and feloniously attack, assault and shot one Francis Ernest Escano with the
use of an unlicensed SMITH & WESSON Airweight caliber .38 revolver with Serial Number 359323 hitting and inflicting upon
the latter the following gunshot wounds or injuries, to wit:

MULTIPLE GUNSHOT WOUNDS — Head and Chest (Through & Through);

Head Entrance — 14 x 2.2 cm., Left Fronto-temporal Area; Port — l.3 x 0.3 cm., Right Cheek, 3.5 cm.,
above the right external meatus;

Chest Entrance — 0.3 x 1 cm. — right Infrascapular Area at the level of the 7th Inter-Costal Rib (back);
exit — 0.3 cm. dia; above the right nipple

Y-shape laceration, cheek at the angle of the mouth, Right

Dimensions: 3 x 1.2 cm. x 1.8.

which gunshot wounds or injuries directly caused his death, to the damage and prejudice of the heirs of the deceased
namely: Judge & Mrs. Francisco Rey H. Escano, in the amount to be proved during the trial of the case.

Acts committed contrary to the provisions of Article 248 of the Revised Penal Code, in relation to Section 17 of Batas
Pambansa Blg. 179, with the qualifying aggravating circumstances of evident premeditation, treachery and acting
under the influence of dangerous drugs and cruelty.

Appellant entered a plea of not guilty in both cases. The two (2) criminal cases were consolidated upon motion of the prosecution and
tried jointly. On 31 July 1986, the trial court rendered a decision 3 convicting appellant under both informations. The dispositive portion of the
decision read as follows:
 WHEREFORE, all the foregoing premises considered, decision is hereby rendered in Criminal Case No. 4007 finding the
accused Renato Tac-an y Hipos GUILTY beyond reasonable doubt of Illegal Possession of Firearms and Ammunitions
qualified with Murder under Section 1, paragraphs 1 and 2 of Presidential Decree No. 1866 and hereby sentences said
Renato Tac-an y Hipos to suffer the penalty of DEATH. Further, decision is also rendered in Criminal Case No. 4012 finding
the same accused Renato Tac-an y Hipos GUILTY beyond reasonable doubt of Murder under Article 248 of the Revised
Penal Code, in relation to Batas Pambansa Blg. 179 and P.D. 1866. Appreciating the aggravating circumstance of
evident premeditation (treachery used to qualify the crime to murder) and the special aggravating circumstances of
acting while under the influence of dangerous drugs and with the use of an unlicensed firearm and with insult to a
person in authority and there being no mitigating circumstance to offset them, and sentences the said Renato Tac-an y
Hipos to suffer the penalty of DEATH. The accused is likewise ordered to indemnify the heirs of the deceased Francis
Ernest Escano in the amount of THIRTY THOUSAND PESOS (P30,000.00); to pay actual compensatory damages in the
amount of ONE HUNDRED EIGHT THOUSAND THREE HUNDRED TEN PESOS (P108,310.00); to pay moral damages to Judge
Francisco Escano, Jr., the sum of ONE HUNDRED THOUSAND PESOS (P100,000.00) and to Mrs. Lydia Escano the sum of
ONE HUNDRED THOUSAND PESOS (P100,000.00) for the mental anguish and suffering each experienced because of the
death of Francis Ernest. All such amount shall earn legal interest from the time this decision shall become final and
executory until fully satisfied. The accused shall also pay the costs.

SO ORDERED.

Immediately after promulgation of the decision, appellant signified his intention to appeal to this Court, although the same was subject to
automatic review by this Court.

In his brief, appellant assigned the following as errors allegedly committed by the trial court:

I. The lower court erred in believing the prosecution's version of the case instead of according full faith and credence to
the defendant's version.

II. The trial court erred in not holding that Renato Tac-an was justified in shooting the deceased.

III. The trial court erred in not holding that in (sic) the least the defendant acted in incomplete self-defense in shooting
the deceased.

IV. The trial court erred in not holding that P.D. 1866 is inapplicable to the defendant inasmuch as said decree was
enforceable only during the existence of the Martial Law Regime.

V. The trial court erred in not holding that the defendant was placed twice in jeopardy for having been prosecuted for
violation of P.D. 1866 despite his being prosecuted for murder in an information which alleges that the accused used an
unlicensed firearm in killing the deceased.

VI. The trial court erred in not adjudging the defendant innocent of murder.

From the record, the facts may be collated and summarized as follows:

Appellant Renato Tac-an, then eighteen (18) years and seven (7) months of age, and the deceased Francis Ernest Escano III, fifteen (15)
years old, were classmates in the third year of high school of the Divine Word College in Tagbilaran City. They were close friends, being not
only classmates but also members of the same gang, the Bronx gang. Renato had been to the house where Francis and his parents lived,
on one or two occasions. On those occasions, Francis' mother noticed that Renato had a handgun with him. Francis was then advised by
his mother to distance himself from Renato. 4

Francis withdrew from the Bronx gang. The relationship between Renato and Francis turned sour. Sometime in September 1984, Renato and
Francis quarrelled with each other, on which occasion Francis bodily lifted Arnold Romelde from the ground. Arnold was friend and
companion to Renato. The quarrel resulted in Renato and Francis being brought to the high school principal's office. The strained
relationship between the two (2) erstwhile friends was aggravated in late November 1984 when Francis teamed that Renato, together with
other members of the Bronx gang, was looking for him, apparently with the intention of beating him up. Further deterioration of their
relationship occurred sometime in the first week of December 1984, when graffiti appeared on the wall of the third year high school
classroom and on the armrest of a chair in that classroom, deprecating the Bronx gang and describing Renato as
"bayot" (homosexual) 5 Renato attributed the graffiti to Francis.

At about 2:00 o'clock in the afternoon of 14 December 1984, Renato entered Room 15 of the high school building to attend his English III
class. Renato placed his scrapbook prepared for their Mathematics class on his chair, and approached the teacher, Mrs. Liliosa Baluma, to
raise a question. Upon returning to his chair, he found Francis sitting there, on the scrapbook. Renato was angered by what he saw and
promptly kicked the chair on which Francis was seated. Francis, however, explained that he had not intentionally sat down on Renato's
scrapbook. A fistfight would have ensued but some classmates and two (2) teachers, Mrs. Baluma and Mr. Damaso Pasilbas, intervened
and prevented them from assaulting each other. After the two (2) had quieted down and apparently shaken hands at the instance of Mrs.
Baluma, the latter resumed her English III class. Francis sat on the last row to the extreme right of the teacher while Renato was seated on
the same last row at the extreme left of the teacher. While the English III class was still going on, Renato slipped out of the classroom and
went home to get a gun. He was back at the classroom approximately fifteen (15) minutes later. 6
The Mathematics class under Mr. Damaso Pasilbas scheduled for 3:00 p.m. had just started in Room 15 when Renato suddenly burst into the
room, shut the door and with both hands raised, holding a revolver, shouted "Where is Francis?" Upon sighting Francis seated behind and to
the light of student Ruel Ungab, Renato fired at Francis, hitting a notebook, a geometry book and the armrest of Ruel's chair. Francis and
Ruel jumped up and with several of their classmates rushed forward towards the teacher's platform to seek protection from their teacher.
Renato fired a second time, this time hitting the blackboard in front of the class. Francis and the other students rushed back towards the
rear of the room. Renato walked towards the center of the classroom and fired a third time at Francis, hitting the concrete wall of the
classroom. Francis and a number of his classmates rushed towards the door, the only door to and from Room 15. Renato proceeded to the
teacher, s platform nearest the door and for the fourth time fired at Francis as the latter was rushing towards the door. This time, Francis was
hit on the head and he fell on the back of Ruel and both fell to the floor. Ruel was pulled out of the room by a friend; Francis remained
sprawled on the floor bleeding profusely. 7

Renato then went out of Room 15, and paced between Rooms 14 and 15. A teacher, Mr. Pablo Baluma, apparently unaware that it was
Renato who had gunned down Francis, approached Renato and asked him to help Francis as the latter was still alive inside the room.
Renato thereupon re-entered Room 15, closed the door behind him, saying: "So, he is still alive. Where is his chest?" Standing over Francis
sprawled face down on the classroom floor, Renato aimed at the chest of Francis and fired once more. The bullet entered Francis' back
below the right shoulder, and exited on his front chest just above the right nipple. 8

Renato then left with two (2) remaining students and locked Francis alone inside Room 15. Renato proceeded to the ground floor and
entered the faculty room. There, he found some teachers and students and ordered them to lock the door and close the windows, in
effect holding them as hostages. He also reloaded his gun with five (5) bullets. After some time, a team of Philippine Constabulary troopers
led by Capt. Larino Lazo arrived and surrounded the faculty room. With a hand-held public address device, Capt. Lazo called upon
Renato to surrender himself Renato did not respond to this call. Renato's brother approached Capt. Lazo and volunteered to persuade his
brother to give up. Renato's father who, by this time had also arrived, pleaded with Renato to surrender himself Renato then turned over his
gun to his brother through an opening in the balustrade of the faculty room. Capt. Lazo took the gun from Renato's brother, went to the
door of the faculty room, entered and placed Renato under arrest. 9

Meantime, as soon as Renato left Room 15, some teachers and students came to rescue Francis but could not open the door which
Renato had locked behind him. One of the students entered the room by climbing up the second floor on the outside and through the
window and opened the door from the inside. The teachers and students brought Francis down to the ground floor from whence the PC
soldiers rushed him to the Celestino Gallares Memorial Hospital. 10 Francis died before reaching the hospital.

Capt. Lazo brought Renato to the PC Headquarters at Camp Dagohoy, Tagbilaran City. The officer deposited the revolver recovered from
Renato which was an Airweight Smith and Wesson .38 caliber revolver, with Serial No. 359323, as well as the five (5) live bullets removed
from the said revolver, and the five (5) empty cartridges which Renato had turned over to him. Ballistic examination conducted by
Supervising Ballistician, Artemio Panganiban, National Bureau of Investigation, Cebu, showed that the empty cartridge cases had been
fired from the revolver recovered from Renato. 11

Appellant at the outset assails the trial court for having believed the prosecution's version of the facts instead of the version offered by the
appellant. The trial court took into account, inter alia, the positive and direct testimony of:

1. Mrs. Liliosa Baluma who testified as to, among other things, the events which took place inside her English III classroom
immediately before the shooting;

2. Ruel Ungab — a fifteen (15) year old classmate of Renato and Francis, who had fallen on the floor with Francis when
the latter was finally hit by Renato;

3. Damaso Pasilbas — the Mathematics teacher who was holding his class when Renato had burst into Room 15 and
started firing at Francis; and

4. Napoleon Jumauan — another sixteen (16) year old, classmate of Renato and Francis who was inside the classroom
when Renato had started firing at Francis and who was only about a foot away from the head of Francis when Renato,
having re-entered Room 15, had fired at Francis as the latter was sprawled on the floor of the classroom.

After careful examination of the record, we find no reason to disagree with the conclusion of the trial court that Renato had indeed shot
and killed Francis under the circumstances and in the manner described by these witnesses.

1. The claim of self-defense.

Renato claimed that he was acting in self-defense, or at least in incomplete self-defense, when he shot Francis. For a claim of self-defense
to be sustained, the claimant must show by clear and convincing evidence that the following requisites existed:

a) unlawful aggression on the part of the victim;

b) reasonable necessity of the means employed by the accused to repel the aggression; and

c) lack of sufficient provocation on the part of the accused. 12

Testifying in his own behalf, Renato said that a few minutes before the end of Mrs. Baluma's English III class, Francis had approached him:

(Atty. Seno, Defense Counsel)

Q: How did it happened (sic) that you had a conversation with Francis?

(Renato)

A: While the class was going on, Mrs. Baluma was writing on the blackboard.

Q: Then what happened?

A: While our teacher was writing on the blackboard Francis suddenly got near me.

Q: And what happened when Francis approached you?

A: He said, 'So you are brave now you had a (sic) guts to fight against me.'

Q: And what else did he say?

A: He said, 'Go home, get your firearm because I will go home to get a gun.'

Q: Was that all that he told you?

A: He further said, 'You go home get your firearm, if you won't go home and get a gun, I will go to your
place and kill you including your parents, brothers and sisters.'

Q: And after that where did Francis go?

A: Before the bell rang he went ahead. 13

(Emphasis supplied)

We note at the outset that there was no evidence before the Court, except Renato's own testimony, that Francis had uttered the above
statements attributed to him by Renato. Although there had been about twenty-five (25) other students, and the teacher, in the classroom
at the time, no corroborating testimony was offered by the defense. In the second place, assuming (arguendo merely) that Francis had
indeed made those statements, such utterances cannot be regarded as the unlawful aggression which is the first and most fundamental
requirement of self-defense. Allegedly uttered in a high school classroom by an obviously unarmed Francis, such statements could not
reasonably inspire the "well grounded and reasonable belief" claimed by Renato that "he was in imminent danger of death or bodily
harm." 14 Unlawful aggression refers to an attack that has actually broken out or materialized or at the very least is clearly imminent: it
cannot consist in oral threats or a merely threatening stance or posture. 15Further as pointed out by the Solicitor General, Francis was
obviously without a firearm or other weapon when Renato returned and burst into Room 15 demanding to know where Francis was and
forthwith firing at him repeatedly, without the slightest regard for the safety of his other classmates and of the teacher. There being no
unlawful aggression, there simply could not be self-defense whether complete or incomplete, 16 and there is accordingly no need to refer
to the other requirements of lawful self-defense.

2. The claim that P.D. No. 1866 is inapplicable.

As pointed out at the outset, appellant was charged with unlawful possession of an unlicensed firearm, a Smith and Wesson Airweight.38
caliber revolver with five (5) spent bullets and five (5) live ones and with having used such firearm and ammunition to shoot to death Francis
Ernest Escano III, in violation of Section 1 of P.D. No. 1866.

Section 1 of P.D. No. 1866 provides, in relevant part, that:

Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments
Used or Intended to be Used in the Manufacture of Firearms or Ammunition. — The penalty of reclusion temporal in its
maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in,
acquire, dispose, or possess any firearms, part of firearm, ammunition, or machinery, tool or instrument used or intended
to be used in the manufacture of any firearm or ammunition.

If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be
imposed. (Emphasis supplied)
Appellant urges that P.D. No. 1866 is inapplicable to him "considering that the reason for its [P.D. No. 1866] issuance no longer exists." He
argues that P.D. No. 1866 was enforceable only during the existence of martial law, and that when martial law was "lifted in 1979," the
reason for the "existence" of P.D. No. 1866 faded away, with the result that the "original law on firearms, that is, Section 2692 of the [Revised]
Administrative Code, together with its pre-martial law amendments, came into effect again thereby replacing P.D. No. 1866." 17

There is nothing in P.D. No. 1866 (which was promulgated on 29 June 1983) which suggests that it was intended to remain in effect only for
the duration of the martial law imposed upon the country by former President Marcos. Neither does the statute contain any provision that
so prescribes its lapsing into non-enforceability upon the termination of the state or period of martial law. On the contrary, P.D. No. 1866 by
its own terms purported to "consolidate, codify and integrate" all prior laws and decrees penalizing illegal possession and manufacture of
firearms, ammunition and explosives in order "to harmonize their provisions as well as to update and revise certain provisions and prior
statutes "in order to more effectively deter violators of the law on firearms, ammunitions and explosives." 18 Appellant's contention is thus
without basis in fact.

3. The claim of double jeopardy.

It is also contended by appellant that because he had already been charged with illegal possession of a firearm and ammunition in
Criminal Case No. 4007, aggravated by the use of such unlicensed firearm to commit a homicide or murder, he was unconstitutionally
placed in jeopardy of punishment for the second time when he was charged in Criminal Case No. 4012 with murder "with the use of an
unlicensed [firearm]," in violation of Article 248 of the Revised Penal Code in relation to Section 17 of B.P. Blg. 179.

It is elementary that the constitutional right against double jeopardy protects one against a second or later prosecution for the same
offense, and that when the subsequent information charges another and different offense, although arising from the same act or set of
acts, there is no prohibited double jeopardy. In the case at bar, it appears to us quite clear that the offense charged in Criminal Case No.
4007 is that of unlawful possession of an unlicensed firearm penalized under a special statute, while the offense charged in Criminal Case
No. 4012 was that of murder punished under the Revised Penal Code. It would appear self-evident that these two (2) offenses in themselves
are quite different one from the other, such that in principle, the subsequent filing of Criminal Case No. 4012 is not to be regarded as having
placed appellant in a prohibited second jeopardy.

We note that the information in Criminal Case No. 4007 after charging appellant with unlawful possession of an unlicensed firearm and
ammunition, went on to state that said firearm and ammunition had been used to shoot to death Francis Ernest Escaño III. We note also
that the amended information in Criminal Case No. 4012 after charging appellant with the unlawful killing of Francis Ernest Escaño III, stated
that the killing had been done with the use of an unlicensed firearm. We believe these additional allegations in the two (2) informations
did not have the effect of charging appellant with having committed the same offense more than once.

However, in sentencing Renato to suffer the penalty of death for the crime of murder, the trial court did take into account as a "special
aggravating circumstance" the fact that the killing of Francis had been done "with the use of an unlicensed firearm." In so doing, we
believe and so hold, the trial court committed error. There is no law which renders the use of an unlicensed firearm as an aggravating
circumstance in homicide or murder. Under an information charging homicide or murder, the fact that the death weapon was an
unlicensed firearm cannot be used to increase the penalty for the second offense of homicide or murder to death (or reclusion
perpetua under the 1987 Constitution). The essential point is that the unlicensed character or condition of the instrument used in destroying
human life or committing some other crime, is not included in the inventory of aggravating circumstances set out in Article 14 of the
Revised Penal Code. 19

In contrast, under an information for unlawful possession (or manufacture, dealing in, acquisition or disposition) of a firearm or
ammunition, P.D. No. 1866 authorizes the increase of the imposable penalty for unlawful possession or manufacture, etc. of the unlicensed
firearm where such firearm was used to destroy human life. Although the circumstance that human life was destroyed with the use of the
unlicensed firearm is not an aggravating circumstance under Article 14 of the Revised Penal Code, it may still be taken into account to
increase the penalty to death (reclusion perpetua, under the 1987 Constitution) because of the explicit provisions of P.D. No. 1866. As noted
earlier, the unlawful possession of an unlicensed firearm or ammunition is an offense punished under a special law and not under the
Revised Penal Code.

4. The claim that there was no treachery.

Appellant contends that there was no treachery present because before any shot was fired, Renato had shouted "where is Francis?"
Appellant in effect suggests his opening statement was a warning to Francis and that the first three (3) shots he had fired at Francis were
merely warning shots. Moreover, building upon his own testimony about the alleged threat that Francis had uttered before he (Renato) left
his English III class to go home and get a gun, appellant argues that Francis must have anticipated his return and thus had sufficient time to
prepare for the coming of the appellant. 20 Appellant's contention, while ingenious, must be rejected. The trial court made a finding of
treachery taking explicit account of the following factors:

1. Room 15 of the Divine Word College High School Department Tagbilaran City, is situated in the second floor of the
building. It is a corner room and it has only one (1) door which is the only means of entry and exit;

2. At the time of the attack, the deceased was seated on his chair inside his classroom and was writing on the armrest of
his chair and also talking to Ruel Ungab and while their teacher, Mr. Damaso Pasilbas was checking the attendance. The
deceased was not aware of any impending assault neither did he have any means to defend himself;
 3. The accused used an airweight Smith & Wesson .38 caliber revolver in shooting to death the defenseless and helpless
Francis Ernest Escaño;

4. The attack was so sudden and so unexpected. the accused consciously conceived that mode of attack;

5. The accused fired at Francis again and again and did not give him a chance to defend himself. After the deceased
was hit on the head and fell to the floor while he was already sprawled and completely defenseless the accused fired at
him again and the deceased was hit on the chest;

6. The deceased was not armed. He was totally defenseless. He was absolutely not aware of any coming attack. 21

The Court also pointed out that Renato must have known that Francis while inside Room 15 had no means of escape there being only one
(1) door and Room 15 being on the second floor of the building. Renato in effect blocked the only exit open to Francis as he stood on the
teacher's platform closest to the door and fired as Francis and Ruel sought to dash through the door. Renato's question "where is Francis?"
cannot reasonably be regarded as an effort to warn Francis for he shot at Francis the instant he sighted the latter, seated and talking to
Ruel Ungab. That Renato fired three (3) shots before hitting Francis with the fourth shot, can only be ascribed to the indifferent markmanship
of Renato and to the fact that Francis and the other students were scurrying from one part of the room to the other in an effort to evade
the shots fired by Renato. The cumulative effect of the circumstances underscored by the trial court was that the attack upon Francis had
been carried out in a manner which disabled Francis from defending himself or retaliating against Renato. Finally, the circumstance that
Renato, having been informed that Francis was still alive, re-entered Room 15 and fired again at Francis who lay on the floor and bathed
with his own blood, manifested Renato's conscious choice of means of execution which directly and especially ensured the death of his
victim without risk to himself. 22 We are compelled to agree with the trial court that treachery was here present and that, therefore, the
killing of Francis Ernest Escaño III was murder.

5. The claim that there was no evident premeditation.

The trial court also found the presence of evident premeditation and appreciated the same as a generic aggravating circumstance. Here,
it is the urging of the appellant that the requisites of evident premeditation had not been sufficiently shown. In order that evident
premeditation may be taken into account, there must be proof of (a) the time when the offender formed his intent to commit the crime;
(b) an action manifestly indicating that the offender had clung to his determination to commit the crime; and (c) of the passage of a
sufficient interval of time between the determination of the offender to commit the crime and the actual execution thereof, to allow him to
reflect upon the consequences of his act. 23 The defense pointed out that barely fifteen (15) minutes had elapsed from the time Renato left
his English III class and the time he returned with a gun. While there was testimony to the fact that before that fatal day of 14 December
1984, anger and resentment had welled up between Francis and Renato, there was no evidence adequately showing when Renato had
formed the intention and determination to take the life of Francis. Accordingly, we must discard evident premeditation as an aggravating
circumstance.

6. The claim that the killing was not done under the influence of a dangerous drug.

Section 17 of B.P. Blg. 179 which was promulgated on 2 March 1982 provides as follows:

SEC. 17. The provisions of any law to the contrary notwithstanding, when a crime is committed by an offender who is
under the influence of dangerous drugs, such state shall be considered as a qualifying aggravating circumstance in the
definition of a crime and the application of the penalty provided for in the Revised Penal Code.

The trial court found that Francis was killed by Renato while the later was under the influence of a dangerous drug, specifically marijuana,
and took that into account as a "special aggravating circumstance". No medical evidence had been submitted by the prosecution to
show that Renato had smoked marijuana before gunning down Francis. Fourteen (14) days had elapsed after December 14, 1984 before
Renato was medically examined for possible traces of marijuana; the results of the examination were negative. Defense witness Dr. Rogelio
Ascona testified that in order to have a medically valid basis for determining the presence of marijuana in the human system, the patient
must be examined within twenty-four (24) hours from the time he is supposed to have smoked marijuana. 24 The prosecution had presented
Orlando Balaba, a student at the Divine Word College, High School Department, who testified that he found Renato and one Jaime Racho
inside the men's room of the High School Department sucking smoke from a hand-rolled thing that look like a cigarette, that he had asked
Renato what that was and that Renato had replied damo (marijuana). 25 While the testimony of Orlando Balaba was corroborated by two
(2) other prosecution witnesses, we believe that Orlando Balaba's testimony was incompetent to show that what Renato and Jaime Racho
were smoking inside the men's room was indeed marijuana. It was pointed out by apellant that Orlando Balaba had never smoked nor
smelled marijuana.

In the absence of medical evidence, the Court took into account certain detailed factors as circumstantial evidence supporting the
testimony of Orlando Balaba. These circumstances were:

The circumstance of place where the killing was committed, the circumstance of the manner of the attack, the
circumstance of holding hostage some teachers and students inside the faculty room, the circumstance of terrifying an
entire school, the circumstance that sitting on a scrapbook is too insignificant as to arouse passion strong enough to
motivate a killing, are circumstantial evidences that gave the court no room for doubt that prosecution witnesses
Orlando Balaba, Benjamin Amper and Allan de la Serna truthfully told the court that they saw the accused smoking
marijuana inside the comfort room at 1:45 in the afternoon of December 14, 1984. ... . 26
The above circumstances pointed to by the trial court may be indicative of passionate anger on the part of Renato; we do not believe
that they necessarily show that Renato had smoked marijuana before entering his English III class. In the absence of competent medical or
other direct evidence of ingestion of a dangerous drug, courts may be wary and critical of indirect evidence, considering the severe
consequences for the accused of a finding that he had acted while under the influence of a prohibited drug. The Court considers that the
evidence presented on this point was simply inadequate to support the ruling of the trial court that Renato had shot and killed Francis while
under the influence of a prohibited drug.

7. The claim that appellant had voluntarily surrendered.

Appellant contends that he had voluntarily surrendered and that the trial court should have considered that mitigating circumstance in his
favor. The trial court did not, and we consider that it correctly refused to do so. Firstly, Renato surrendered his gun, not himself, 27 by handing
over the weapon through the balustrade of the faculty room. Secondly, he surrendered the gun to his brother, who was not in any case a
person in authority nor an agent of a person in authority. 28 Thirdly, Renato did not surrender himself he was arrested by Capt. Lazo. The fact
that he did not resist arrest, did not constitute voluntary surrender. 29 Finally, if it be assumed that Renato had surrendered himself, such
surrender cannot be regarded as voluntary and spontaneous. Renato was holed up in the faculty room, in effect holding some teachers
and students as hostages. The faculty room was surrounded by Philippine Constabulary soldiers and there was no escape open to him. He
was not entitled to the mitigating circumstance of voluntary surrender.

8. Whether or not the crime was committed in contempt of or with insult to the public authorities.

The trial court held that the shooting to death of Francis had been done "in contempt of or with insult to the public authorities:

Under Republic Act 1978, as amended, a teacher of a public or private school is considered a person in authority. The
fact that Mr. Damaso Pasilbas, the teacher in mathematics, was already checking the attendance did not deter the
accused from pursuing his evil act, The accused ignored his teacher's presence and pleas. Not yet satisfied with the
crime and terror he had done to Francis and the entire school, the accused entered the faculty room and held hostage
the teachers and students who were inside that room. To the court, this act of the accused was an insult to his teachers
and to the school, an act of callus disregard of other's feelings and safety and completely reprehensible. 30

We believe the trial court erred in so finding the presence of a generic aggravating circumstance. Article 152 of the Revised Penal Code,
as amended by Republic Act No. 1978 and Presidential Decree No. 299, provides as follows:

Art. 152. Persons in authority and agents of persons in authority. — Who shall be deemed as such. — In applying the
provisions of the preceding and other articles of this Code, any person directly vested with jurisdiction, whether as an
individual or as a member of some court or government corporation, board, or commission, shall be deemed a person in
authority. A barrio captain and a barangay chairman shall also be deemed a person in authority.

A person who by direct provision of law or by election or by appointment by competent authority, is charged with the
maintenance of public order and the protection and security of life and property, such as a barrio councilman, barrio
policeman and barangay leader and any person who comes to the aid of persons in authority, shall be deemed an
agent of a person in authority.

In applying the provisions of Articles 148 and 151 of this Code, teachers, professors and persons charged with the
supervision of public or duly recognized private schools, colleges and universities, and lawyers in the actual performance
of their professional duties or on the occasion of such performance, shall be deemed persons in authority. (As amended
by P.D. No. 299, September 19, 1973 and Batas Pambansa Blg. 873, June 12, 1985).

Careful reading of the last paragraph of Article 152 will show that while a teacher or professor of a public or recognized private school is
deemed to be a "person in authority," such teacher or professor is so deemed only for purposes of application of Articles 148 (direct assault
upon a person in authority), and 151 (resistance and disobedience to a person in authority or the agents of such person) of the Revised
Penal Code. In marked contrast, the first paragraph of Article 152 does not identify specific articles of the Revised Penal Code for the
application of which any person "directly vested with jurisdiction, etc." is deemed "a person in authority." Because a penal statute is not to
be given a longer reach and broader scope than is called for by the ordinary meaning of the ordinary words used by such statute, to the
disadvantage of an accused, we do not believe that a teacher or professor of a public or recognized private school may be regarded as
a "public authority" within the meaning of paragraph 2 of Article 14 of the Revised Penal Code, 31 the provision the trial court applied in the
case at bar.

ACCORDINGLY, the decision of the trial court dated 31 July 1986 is hereby MODIFIED in the following manner and to the following extent
only:

1. In Criminal Case No. 4007, appellant shall suffer the penalty of reclusion perpetua;

2. In Criminal Case No. 4012 — (a) the aggravating circumstances of evident premeditation and of having acted with
contempt of or insult to the public authorities shall be DELETED and not taken into account; and (b) the special
aggravating circumstances of acting while under the influence of dangerous drugs and with the use of an unlicensed
firearm shall similarly be DELETED and not taken into account. There being no generic aggravating nor mitigating
circumstances present, the appellant shall suffer the penalty of reclusion perpetua.
The two (2) penalties of reclusion perpetua shall be served successively in accordance with the provisions of Article 70 of the Revised Penal
Code. As so modified, the decision of the trial court is hereby AFFIRMED. Costs against appellant.

SO ORDERED.

G.R. No. 142564 September 26, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
HILGEM NERIO Y GIGANTO, accused-appellant.

PER CURIAM:

This case is here on appeal from the decision1 rendered on January 31, 2000 by the Regional Trial Court of Bacolod City, Branch 47, finding
accused-appellant guilty beyond reasonable doubt of the crime of rape and sentencing him accordingly.

Complainant Vilma M. Concel was, at the time material to this case, 70 years old, a widow, and a retired public school teacher living in
Purok Mahimaya-on, Brgy. Bata, Bacolod City. She had eleven children by her late husband Clemente B. Concel.2 She was the recipient of
an award as one of the outstanding mothers of the province of Negros Occidental.3

Accused-appellant Hilgem Nerio was, at the time of the alleged commission of the crime, 28 years old, single, and also a resident of Purok
Mahimaya-on, Brgy. Bata, Bacolod City. He worked as a Field Coordinator of ABS-CBN Radio.4 Complainant was his teacher in Grade 1.

The Informations5 in this case charged:

"That on or about the 1st day of April, 1999, in the City of Bacolod, Philippines, and within the jurisdiction of the Honorable Court,
the herein accused, being armed with a bladed weapon, by means of force and intimidation, did, then and there, willfully,
unlawfully and feloniously have carnal knowledge of the herein offended party Vilma Concel y Mijares, against the will of the
latter.

That the crime was committed with the aggravating circumstance of insult or disregard of the respect due the offended party on
account of her rank, being a retired school teacher, and her age, being 70 years old.

Act contrary to law."

Upon his arraignment, accused-appellant pleaded not guilty to the charge and was thereafter tried. The following facts were stipulated
upon during the pre-trial conference:

"1. The victim Vilma C. Mijares is 70 years old (Corrected in the Order of November 22, 1999 to: The name of the victim is Vilma
Concel y Mijares.)

2. Private Complainant is the teacher of the accused when he was in grade 1.

3. That the incident which led to the filing in this case happened inside the bedroom and the house of the complainant which is at
Brgy. Bata, Bacolod City (Corrected in the Order of November 22, 1999 to: The incident happened inside the bedroom of the
victim located at the store which is outside and far from the house of the complainant.)

4. Both private complainant and the accused Hilgem Nerio are living in the same area known as Purok Mahimaya-on, Brgy. Bata,
Bacolod City."6

The prosecution presented evidence showing the following: On April 1, 1999, at around 3:30 a.m., complainant Vilma Concel was sleeping
in her room inside her "sari-sari" store in Purok Mahimaya-on in Barangay Bata, Bacolod City. At that time, two of her daughters, Carmen
Concel, 40 years old, single and Velmita Concel-Plaza, 42 years old, married, were living with her in their house. It is not clear from the
records if there were other people, aside from the two daughters, in their house that time. Complainant was awakened when she felt
someone touching her breast and private part. She asked who the man was as she tried to get up. The man was armed with a knife and
warned her not to make any noise or he would kill her. Complainant said she would give him what he wanted as long as he did not harm
her, but he said he did not need anything because what he wanted was to have sex with her.7

According to complainant, the man, whom she identified as accused-appellant Hilgem Nerio, undressed her, took off his own clothes, and
went on top of her, while poking a knife on her left side. Complainant said she grappled with accused-appellant for the knife, as a result of
which she suffered cuts in the palm of her right hand. Complainant was overpowered by accused-appellant, who succeeded in ravishing
her. Complainant testified that accused-appellant asked how many single daughters she had, but she did not answer because she was
afraid that he might harm them. Complainant cried and almost lost consciousness.8
After he was through, accused-appellant lay on complainant's bed as complainant put on her housedress. Accused-appellant then stood
up and put on his clothes. He told complainant to open the main gate and then fled. But before he left, accused-appellant told her that
he would be back the next day at the same time.9

After accused-appellant had left, complainant went to the main house where her daughter Carmen was sleeping and told her what had
happened. The two went to BAC-UP 3 (Police Station 3) that morning and reported the incident. Complainant went to BAC-UP 3 three
times in connection with the incident. On her first visit, she did not report to the Dolice that she had been raped. Instead, she only filed a
complaint for qualified trespass to dwelling, physical injuries, and grave threats10 But on April 3, 1999, at 11 a.m., she went back to the police
station with another daughter, Vilma Plaza, and reported that she had been raped. Later, when shown a photograph of accused-
appellant, complainant identified him as the same man who had raped her. The photograph had been given by accused-appellant's
father upon the request of a certain SPO3 Puentebella.11

That same afternoon, complainant was examined by Dr. Cherry! Gumahin of the Corazon Locsin Montelibano Memorial Regional Hospital.
Dr. Gumahin found on complainant's external genitalia a 0.2 cm. partial tear at the 11 o'clock position as well as a .5 cm. and a .2 cm.
hyperemia in the hymenal area and lacerations on her right hand. She testified that the tear noted in the hymenal region and the
reddening of the vulvar area could have possibly been caused by a foreign blunt object, such as a penis. On the other hand, the
lacerations in the palm of complainant's right hand could have been caused bya sharp instrument like a knife.12

SPO3 Lina Faith Mojica conducted an ocular inspection of complainant's house on April 5, 1999. Complainant's house is a two-story affair
with an extension on the ground floor area where complainant's store was located. SPO3 Mojica theorized that accused-appellant gained
entry to the house by scaling the six-foot high concrete wall which surrounded the house. Once he was inside the lot, he detached three
(3) glass louvers of the jalousie window of the bathroom located on the ground floor. Accused-appellant passed through the window, then
went to the second floor passing by the room of Carmen Cancel and, through a vacant room, went downstairs and, through the main
door, entered the store where complainant was sleeping. The store was separated from the main house by a concrete wall. Complainant's
room was in the store. The room had a window covered with bamboo slats. Accused-appellant probably inserted his hand through the
bamboo slats and succeeded in opening the door which led to complainant's room.13

Accused-appellant denied the charge against him. He admitted having sex with complainant in the early morning of April 1, 1999, but he
claimed that their sexual relation was voluntary and consensual. Accused-appellant said he and complainant were sweethearts and that
in fact they already had two sexual encounters before April 1, 1999, the first on the first week of December 1998 and the second on the
second week of February 1999.

Concerning the first incident, accused-appellant said that, as a Field Coordinator of ABS-CBN Radio, he made the rounds of Purok
Mahimaya-on in search of talents for ABS-CBN Radio. He passed by complainant's house, who was his Grade 1 teacher, and greeted her.
According to accused-appellant, complainant was pleased to see him and asked him to transfer a potted plant beside the door of her
store to the door near her room. Accused-appellant claimed that after obliging his former teacher and while he was washing his hands to
remove the dirt, he was surprised because complainant grabbed his groin, embraced him, and pulled him inside her room. She caressed
his chest and unzipped his pants. Accused- appellant said that, as he lay on the bed, complainant held his penis and performed oral sex
on him. When accused-appellant said that he felt pain, complainant removed her false teeth and continued what she was doing.
Complainant then went on top of him, inserted his penis into her vagina, and they had sexual intercourse.14

Accused-appellant said the second sexual encounter between him and complainant took place in the second week of February 1999. At
that time, accused-appellant said he needed money and so he went to see complainant. Accused-appellant said she let him in the house
and they again engaged in sexual intercourse. Afterward, complainant gave him P300.00.15

The third sexual encounter allegedly took place on April 1, 1999. Accused-appellant was on his way home after a drinking spree with a
friend, Allan Imbong, in the latter's house in Banago. Accused-appellant passed by complainant's house between 1:00 and 2:00 a.m. When
he knocked on the door, complainant opened it and let him in. According to accused-appellant, they again had a tryst. He claimed that,
because he could not have an erection, complainant performed oral sex on him, mounted him, and rubbed his penis against her private
part. They then had sexual intercourse. Accused-appellant asked for water as he was thirsty. Hence, complainant put on her dress, went to
the store, and came back with a glass of water. He asked her for money and was given P100.00, with a promise that she would give him
more if he came back.16

The other witnesses for the defense were Allan Imbong and PO3 Althamar Tupas. Allan Imbong corroborated accused-appellant's claim
that at around 7 p.m. of March 31. 1999, they had a drinking spree at Brgy, Bata. They proceeded to Banago an hour and a half later
where they continued drinking. When they finished at around 1 a.m. of April1, 1999, they returned to Brgy. Bata. Before they reached
accused-appellant's house, accused-appellant invited Imbong to have some snacks at the Burger Junction. They were not able to eat,
however, as accused-appellant did not have money. They decided to go home to accused-appellant's house. But, Imbong said, at the
corner of DYCP, accused-appellant decided to stay behind because he wanted to pass by a particular house. Imbong was shown a
photograph (Exh. 6) of complainant's house which he identified as the one they had been to. Accused-appellant told Imbong to wait, but
the latter said he wanted to go home and left.17

Witness PO3 Tupas testified that on April 1, 1999, at around 4:38 p.m., complainant and her two daughters went to their office and filed a
complaint for Trespass to Dwelling, Grave Threats, and Physical Injuries. After recording the incident in the police blotter, he went with two
other policemen to complainant's house and conducted an investigation. They discovered that the intruder had gained entry to
complainant's house by breaking the sliding window of the bathroom. The intruder proceeded to the second floor, where the room of
complainant's daughter, Carmen, was located, and then passed through the main door of the house to go to complainant's room inside
the store located outside the main house.18
On rebuttal, complainant vehemently denied accused-appellant's claim that they had a relationship. She testified that in December 1998,
when accused-appellant claimed they had a tryst, she was in Manila for a medical check-up and that she did not return to Bacolod until
mid-January of the following year. She claimed that, since accused-appellant was in her class in Grade 1, she did not meet him again until
the morning of April 1, 1999, when the rape took place.19

SPO3 Mojica testified that accused-appellant fled to his mother's hometown in Tapaz, Capiz upon learning that a complaint for rape
against him was filed. He stayed there until he was arrested on October 11, 1999 by members of the Presidential Anti-Organized Crime
Commission.20

The trial court found the prosecution evidence more credible and held accused-appellant guilty of rape. The dispositive portion of its
decision states:

"WHEREFORE, finding accused Hilgem Nerio y Giganto guilty beyond reasonable doubt of Rape under Republic Act 8353
(Amending Article 335 of the Revised Penal code and Republic Act 7659), judgment is hereby rendered sentencing him to suffer
Reclusion Perpetual as well as the accessory penalty provided by law. Accused is further ordered to pay the private offended
party Vilma Concel y Mijares: P50,000.00 as civil indemnity for the rape; P50,000.00 moral damages; and P50,000.00 exemplary
damages.

Accused being detained by reason of the instant case, the period of his preventive imprisonment shall be credited in his favor
and deducted fully from the service of his sentence even if penalized with reclusion perpetua (People vs. Corpuz, 231 SCRA 480),
provided he has agreed in writing to abide by the same disciplinary rules imposed upon convicted prisoners in accordance with
Article 29 of the Revised Penal Code.

SO ORDERED."21

Hence this appeal.

Accused-appellant contends:

"I. THE COURT A QUO ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANT HAS BEEN PROVEN BEYOND REASONABLE
DOUBT DESPITE THE EXISTENCE OF DOUBT AS TO HOW PRIVATE COMPLAINANT POSITIVELY IDENTIFIED ACCUSED-APPELLANT.

"II. THE COURT A QUO ERRED IN APPRECIATING THE AGGRAVATING CIRCUMSTANCE OF INSULT OR IN DISREGARD OF THE RESPECT
DUE TO THE OFFENDED PARTY ON ACCOUNT OF HER RANK AND AGE." 22

FIRST. Accused-appellant contends that he was not identified as the man who had raped complainant on the night of April 1, 1999 and
that there are grave doubts whether she really recognized him on that occasion. Although complainant said that she recognized accused-
appellant as the person who had raped her, she did not describe the man who had abused her to the investigating officer when she
reported the incident to the police. In fact, accused-appellant claims, complainant even testified that she did not recognize the face of
her abuser.23

Accused-appellant also finds it unbelievable that complainant can identify him as her abuser when she claimed on rebuttal that she only
saw him in the morning of April 1, 1999. Even if he was complainant's pupil in Grade 1, he argues that his physical appearance had
changed considerably since then. He maintains that complainant was able to identify him only through the picture which was supplied by
his (accused- appellant's) father and shown to her at the police station.24

Finally, accused-appellant claims that complainant has poor eyesight. She could not even read the affidavit that she executed (Exh. 4)
when it was shown to her in court. Considering her defective eyesight and the fact that it was improbable that she was wearing glasses
when she was raped, it is doubtful whether she really recognized the assailant's face.25

As the Solicitor General points out, however, complainant did not say that she did not recognize the face of her rapist. Her testimony on this
point is as follows:

"COURT:

Q The question of the counsel is why did you not tell the police that it was the accused who raped you instead you said you
did not recognize?

A I knew him by face.

ATTY. DE LA FUENTE:

Q: Is it not a fact that you earlier said that you already knew him as Hilgem Nerio?

A: By face.
 FISCAL YNGSON:

We object there is no mention of the name.

ATTY. DE LA FUENTE:

He said earlier. He already knew him as Hilgem Nerio.

COURT:

He even pointed to the accused. Let the witness answer.

A Upon seeing his face I alreadv knew his name as Hilgem Nerio.

ATTY. DE LA FUENTE

Q So you know his face and his name as Hilgem Nerio, is that correct?

A Yes, ma'am.26

Thus, complainant was able to see the face of her accused-appellant. Indeed, her testimony is consistent with the two complaints she filed.
In her first complaint for qualified trespass to dwelling, physical injuries, and grave threats, complainant stated that an unidentified person
broke into her house, went into her room, poked a knife at her, and threatened to kill her if she shouted. In her second complaint with the
additional charge of rape, complainant again stated that she did not know the identity of her abuser but said that she would be able to
positively identify him if she saw him again. When SPO3 Mojica showed her a photograph of accused-appellant, she broke down and
stated that the man in the photograph was the same man who had raped her.27 Complainant recalled to SPO3 Mojica that some of her
neighbors had been victimized in the same manner by an unidentified person, but they did not file complaints against him. Complainant
wanted to be sure the intruder who had raped her was the person her neighbors complained against. Acting upon this lead, SPO3
Puentebella made inquiries and asked accused-appellant's father for a photograph of his son. SPO3 Puentebella made this request so he
could show the picture to complainant.28

Accused-appellant's contention that complainant could not have identified him after he became her pupil in Grade 1 because his
physical appearance had changed since then is without merit. Complainant recognized accused-appellant not because he was once
her former pupil but because she had seen his face on the date in question. This is the reason she was able to identify accused-appellant
when his photograph was shown to her.

Accused-appellant's claim that complainant's poor eyesight made it impossible for her to see her assailant's face clearly is flimsy. Accused-
appellant made this conclusion on the basis of complainant's inability to read the affidavit shown to her during the trial of November 22,
1999 because she did not have her eyeglasses. It does not necessarily follow, however, that if complainant was unable to read without her
eyeglasses, I she would likewise be unable to see the face of her attacker, especially if he was on top of her as he raped her. Complainant
testified that after accused-appellant undressed her, she saw him remove his clothes. Accused-appellant held a knife in his left hand and
poked it at her.29 She likewise stated in her complaint that she would be able to positively identify her abuser if she saw him again. Thus,
complainant saw accused-appellant's face on the night that she was sexually abused.

Accused-appellant also cites alleged inconsistencies in the testimony of complainant. Accused-appellant asks why she did not tell I
everything to the police the first time she reported the incident. And if she had been told the whole story, why did Carmen, complainant's
daughter, not disclose the rape to the police if her mother was reluctant to do so? From these questions, which allegedly were not
answered satisfactorily by the prosecution, accused-appellant makes the inference that both complainant and her daughter in fact knew
the person who entered their house that morning but they hid his identity and did not immediately report the incident to the police.30

Accused-appellant's arguments have been sufficiently answered by the trial court which held:

"The fact that in her first report to the police of the incident as entered in the police blotter of April 1, 1999 (Exh. "1") did not
mention the rape did not in any way mean that the crime was not committed since the sexual contact was insolently admitted
by accused Nerio. Besides, it was satisfactorily explained by complainant that during first report, she and her daughter Carmen
who went with her to the police station were extremely nervous and she was overwhelmed by her traumatic experience that she
failed to mention about the rape, This was heightened by the inexpressible shame and embarrassment of reporting the sordid
detail of her ravishment from the hands of her attacker to a male police officer, PO3 Althamar Tupas who made the booking. xx
xx xx 31

Complainant, an old lady, was ashamed to tell the police that she had been raped. She went to the police station three times, but it was
only on the third time, on April 3, 1999, when she mustered enough courage to tell her story.

This Court has upheld the conviction of an accused for rape even if the complainant disclosed the incident only after several days or even
months after the occurrence.32 The two-day delay in reporting the rape incident in this case cannot undermine the charge against
accused- appellant as it was shown that the delay is grounded on his threats that he would kill complainant if she shouted and that he
would return the next day.33

Accused-appellant alleges that there are glaring inconsistencies between complainant's affidavit and her testimony in court. The alleged
inconsistencies are minor and merely refer to trivial details which may have been caused by the natural fickleness of memory. They tend to
strengthen, rather than weaken, the credibility of the prosecution witness because they erase any suspicion of a rehearsed testimony.34

Indeed, the details contained in complainant's affidavit (Exh. "4") and in her testimony on direct and cross-examination are substantially
consistent with one another. What is crucial is that complainant's affidavit and testimony on direct and cross-examination as a whole agree
on all the essential facts and give a coherent picture of the sordid events that happened in the morning of April 1, 1999.

Accused-appellant alleges that complainant added other details during her cross-examination although she affirmed the contents of her
affidavit. There is actually no inconsistency. Complainant was more detailed in her testimony in court because more questions were asked.
In one case, we ruled:

"Generally an affidavit is not prepared by the affiant himself, but by another person who uses his own language in writing the
affiant's statements. Omissions and misunderstandings by the writer are not infrequent particularly under circumstances of hurry
and impatience. For this reason, the infirmity of affidavits as a species of evidence is much a matter of judicial experience."35

We have many times ruled that when the question of credence as to which of the conflicting versions of the prosecution and defense
should be believed the trial court's findings are generally accorded with respect because it has seen the way the witnesses testified and
observed them while testifying.36 Unless shown that it has overlooked some facts which would affect the result of the case, the trial court's
factual findings will not be disturbed by the appellate court.37 The trial court arrived at a judgment of conviction by relying on the testimony
of complainant. The trial court held:

"Prudently, judiciously, objectively and meticulously evaluating, analyzing, calibrating and going through the finer points of the
evidence adduced by the contending parties on the charge of rape by complainant Vilma Concel viz-a-viz the audacious
admission by accused Hilgem Nerio of voluntary sexual tryst with complainant anchored on "sweetheart defense," we find in favor
of the prosecution. There is a total dearth of raison d' etre for us to be skeptical of the credibility of private complainant who is a
venerable grandmother of 70, a retired public school teacher, a purok president and a recipient of the plum as one of the 1994
Outstanding Mothers of Negros Occidental (province)."38

The trial court, characterizing complainant's testimony as simple but candid, straightforward, and sincere, found it more worthy of belief
than accused-appellant's testimony. This is in keeping with settled jurisprudence that since rape is essentially an offense of secrecy, not
generally attempted except in dark or deserted and secluded places away from prying eyes, a complaint arising from the crime usually
commences solely upon the word of the woman herself, and conviction invariably hangs only upon her credibility as the People's single
witness of the actual occurrence.

Accused-appellant asserts that the trial court showed its bias by believing complainant's explanation that the reason she did not initially
report the rape to the police was because she was ashamed. Her claim that she did not want to make a report to a policeman was flimsy
because she could have been referred to a female investigator at the Women's and Children's Desk, which was specifically set up to
handle cases of this nature.39 But did complainant know this? Could she have asked for a female investigator when by doing so she would
be letting the male investigators know exactly what she did not want them to know? These are questions which she should have been
asked during the cross-examination and not only now on appeal.

Indeed, complainant's testimony that accused-appellant forced himself upon her, that he threatened her with a knife, and that she tried to
protect herself and in so doing suffered cuts in the palm of her right hand remain unchallenged despite all of accused-appellant's sophistry.
As the trial court found:

"The circumstances of force and intimidation with the use of a bladed weapon in the perpetration of rape as charged in the
Information attending the instant case were manifested clearly not merely in the victim's testimony but also in the physical
evidence presented during trial, i.e., the medico-legal report showing three (3) lacerations in the right palm of the said victim.
These injuries were sustained by her while trying to wrest away the knife from her sexual attacker and exerting efforts to disengage
herself from the sexual anchorage. Such piece of evidence is more eloquent than a hundred witnesses. The fact of carnal
knowledge is not disputed; it is in fact admitted. Moreover, it was positively established through the offended party's own
testimony and corroborated by that of her examining physician."40

In her medical report (Exh. B), Dr. Cherryl C. Gumahin stated that complainant had a 0.2 cm. partial tear at the 11 o'clock position in the
hymenal area with hyperenia of the vulvar area (Exh. B-1).41 She testified that these could have been caused by a blunt object, such as a
penis. She also found lacerations measuring .2 cm., .5 cm., and .3 cm. on complainant's right hand. According to Dr. Gumahin, these
lacerations could have been caused by a sharp instrument, like a knife.42

Indeed, the defense has utterly failed to show why complainant, a septuagenarian in the twilight of her life, a widow, and a mother of
eleven children, who testified not knowing accused-appellant except when she was his Grade 1 teacher, would file such a malicious
charge against him. Verily, a rape victim would not publicly disclose that she has been raped and undergo the trouble and humiliation of a
trial if her motive was not to bring to justice the person who had abused her.43
In this case, complainant was 70 years old when the attack occurred. She was, and is, respected not only in the community, having once
been a candidate of their barangay, but in the entire province of Negros Occidental, being one of the recipients of an award as
Outstanding Mother of the said province. Why would she take interest in prurient matters and even want to engage in a sexual liaison when
ladies of her age and station in life are turning their thoughts to virtues? Accused-appellant would want this Court to believe that
complainant was a sex-starved old woman who found accused-appellant, then 28 years of age, so virile and irresistible that she showed
sexual aggressiveness even in their first encounter. She allegedly grabbed his groin and helped him attain erection by performing oral sex
on him. Indeed, the picture painted of her by accused-appellant is that of the equivalent of the dirty old man. We cannot believe this
fantasy.

The same thoughts appear to have crossed the mind of the trial judge. Now, accused-appellant asks why a young and exceedingly virile
male like him would prefer to have sex with a 70-year old woman when her younger daughter was easily accessible. The answer is:
Probably he would not have done this had he not just been to a drinking bout with a friend which lasted from 7:00 p.m. of the previous
night up to 1:00 a.m. of the next day, when he committed the crime.

As to why accused-appellant did not molest complainant's daughter, whose room he passed in going to the store, SPO3 Mojica found that
the intruder had first tried to open the door of complainant's daughter's room on the second floor. Finding that it was locked, he
proceeded to open the door of the next room. After seeing that it was empty, he proceeded to the ground floor.44 Thus, accused-
appellant did indeed try to reach complainant's daughter first, contrary to what he claims. Finding her to be inaccessible, accused-
appellant opted to look for complainant.

As to why he took a longer route going to complainant, a possible reason can be given for such behavior. He could have had robbery in
mind when he entered the main house. In fact, his companion, Allan Imbong, testified that they wanted to eat after their drinking spree,
but accused-appellant did not have money. Accused-appellant told him to wait while he dropped by complainant's house.45 SPO3 Mojica
theorized that accused-appellant tried to enter several rooms in the house before finally going to complainant's room because he wanted
to rob the place.

SECOND. It is charged that the trial court was so prejudiced against accused-appellant that it ignored and even refused to listen to the
latter's version of the incident and placed on him the burden of proving his innocence. Accused-appellant avers that the court erred in
finding that the bathroom window through which the intruder passed was made of louvers of jalousies, as testified to by SPO3 Mojica,
when, according to PO3 Tupas, it was an old single glass window with a wooden cross brace. According to accused-appellant, because
of these conflicting descriptions of the window, the court should have conducted an ocular inspection of the house. Accused-appellant
filed a Motion for Ocular Inspection, which would have shown that neither of the two police officers' descriptions of the bathroom window
was correct and that it was in fact made out of a single broken glass which would not allow entrance even of a child's head. Accused-
appellant argues that such finding would also have proved his defense that he was familiar with the interior of complainant's room
because he was a frequent visitor there.46

SPO3 Mojica categorically stated that the bathroom window was of the jalousie type and that the intruder gained entry into the house by
detaching three glass louvers of the jalousie window. Accused-appellant was given the opportunity to controvert this fact and he, in fact,
did so by describing in detail the features of complainant's room. But the trial court was not convinced. It denied accused-appellant's
motion for ocular inspection in the interest of conducting a speedy trial. The trial court had the opportunity to hear accused-appellant's
testimony and to observe his demeanor while testifying. It did not attach any significance to these particular defenses presented by
accused-appellant. We find no cogent reason to disturb the trial court's findings on these points.

THIRD. Accused-appellant makes much of the statement in the medical report that complainant "claims to have had no penile penetration
but the penis was noted to enter only on vaginal opening. No ejaculation." Accused-appellant argues that, if there was neither penile
penetration by force nor ejaculation, then there was no rape. Suffice it to say that neither complete penetration nor ejaculation is required
to consummate rape. What is material is that there is penetration no matter how slight of the female organ. 47 The mere introduction of the
male organ into the labia of the pudendum is sufficient. That there was penetration in this case was proven by the testimony of the
complainant. She testified that accused-appellant inserted his penis into her vagina and made the coital movement for about five to ten
minutes. As we have long held, when a woman says that she has been raped, she says in effect all that is necessary to show that rape has
been committed. Her testimony is credible where she has no motive to testify falsely against the accused, as in the case at bar.

In any event, even granting that he and complainant had really been sweethearts, that fact alone would not negate the commission of
rape. A sweetheart cannot be forced to have sex against her will. Love is not a license for lust.48Not even a past sexual relationship
between the parties is a defense to a rape.49

The conduct of complainant immediately after the alleged rape as well as accused-appellant's behavior upon learning that a complaint
for rape had been filed against him is significant. Immediately after the sexual assault, complainant told her daughters about the incident,
went with them to the police station to file a complaint, and submitted herself to a difficult and humiliating physical examination during
which she exposed her private parts to a stranger. This fact belies accused-appellant's claim that complainant agreed to have sexual
intercourse with him.50

Accused-appellant, on the other hand, upon learning that a complaint for rape had been filed against him on April 5, 1999, fled and went
into hiding in his mother's hometown and later stayed with his sister. He hid there for six months and six days until he was arrested on
October 11, 1999. Accused-appellant claims that he fled and hid because he was afraid. We are not convinced by accused-appellant's
self-serving explanation. We have repeatedly held that the flight of an accused signifies an awareness of guilt and a consciousness that he
had no tenable defense against the rape charge.51
FOURTH. Accused-appellant contends that the trial court erred in appreciating the aggravating circumstance of insult or disregard of the
respect due to the offended party on account of her rank and age. He claims that, other than the bare allegation that she is 70 years old
and a retired public school teacher, there is no proof that he deliberately intended to offend or insult complainant's rank or age.

We hold that the trial court properly appreciated the existence of the aggravating circumstance of insult or disregard of the respect due to
the offended party on account of her rank and age. Accused-appellant knew that complainant was his Grade 1 public school teacher
and was already quite old. Indeed, these facts were admitted by accused-appellant in the stipulation of facts embodied in the pre-trial
order which he signed.52 As the Solicitor General observes, accused-appellant was fully aware that he was raping his old teacher. That
complainant had already retired from the service as a teacher did not diminish the respect due her rank as a former Grade 1 teacher of
accused-appellant.

In analogous cases, rank aggravated the murder by a pupil of his teacher53 and the assault upon a 66-year old District Judge of the Court
of First Instance by a justice of the peace.54 On the other hand, age aggravated the murder of the victim, who was 65 years old, by her
offenders, aged 32 and 27.55 It was also appreciated in the killing of a 73- year old man bya 27-year old assailant.56

Under Art. 266-A, par. 1 (a) of the Revised Penal Code, as amended by R.A. No. 7659 and R.A. No. 8353, rape is committed by a man who
shall have carnal knowledge of a woman through force, threat, or intimidation. Article 266-8 provides that rape under paragraph 1 of
Article 266-A shall be punished with reclusion perpetua to death whenever the rape is committed with the use of a deadly weapon. The
use by accused-appellant of a bladed weapon when he raped complainant was alleged in the information and sufficiently proven in this
case. Under Article 63 of the Revised Penal Code, in all cases in which the law prescribes a penalty composed of two indivisible penalties,
and the crime was committed with the presence of one aggravating circumstance, the greater penalty shall be applied. Considering the
presence in this case of the aggravating circumstance of insult or disregard of the respect due the offended party on account of her age
and rank, the sentence of reclusion perpetua imposed by the trial court should be changed to the penalty of death.

Four (4) members of the Court, although maintaining their adherence to the separate opinions expressed in People vs. Echagaray57 that
R.A. No. 7659, insofar as it prescribes the penalty of death, is unconstitutional, nevertheless submit to the ruling of the majority that the law is
constitutional and that the death penalty should accordingly be imposed.

The award of civil indemnity of accused-appellant in the amount of P50,000.00 should be increased to P75,000.00. This is in line with current
case law,58 that if the crime is qualified by circumstances which warrant the imposition of the death penalty by applicable amendatory
laws, the accused should be ordered to pay the complainant the amount of P75,000.00 as civil indemnity. The award of P50,000.00 as
moral damages is in accordance with recent rulings.59 As to the award of exemplary damages, we held in People vs. Catubig60 that the
presence of an aggravating circumstance, whether ordinary or qualifying, entitles the offended party to an award of exemplary damages.
Hence, the award of exemplary damages by the trial court is proper, but the same should be reduced to P25,000.00 in line with the ruling
in Catubig.

WHEREFORE, the decision of the trial court is AFFIRMED with the MODIFICATION that accused-appellant is sentenced to suffer the maximum
penalty of DEATH. He is likewise ordered to pay complainant P75,000.00 as civil indemnity, and, in addition, P50,000.00 as moral damages,
P25,000.00 as exemplary damages, and the costs.

In accordance with Section 25 of R.A. No. 7659, amending Art. 83 of the Revised Penal Code, upon the finality of this decision, let the
records of this case be forthwith forwarded to the President of the Philippines for the possible exercise of the pardoning power.

SO ORDERED.1âwphi1.nêt

G.R. No. 132632 June 19, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANGEL RIOS, accused-appellant.

PUNO, J.:

If capital punishment is justified, it serves as a deterrent; if injudiciously imposed, it generates resentment. 1 This truism underscores the
wisdom of the admonition that any decision authorizing the State to take life must be as error-free as possible. 2 At stake in the case at bar is
life itself, hence, we shall strictly adhere to our bounden duty to exercise extreme caution in the review of the parties evidence.

For the death of Ambrocio Benedicto due to a fatal stab wound, appellant Angel Rios was charged with the crime of murder in an
information that reads:

That on or about the 7th day of February 1996, in the municipality of San Jose del Monte, province of Bulacan, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, armed with bladed instrument and with intent to kill
one Ambrocio Benedicto, did then and there wilfully, unlawfully and feloniously, with evident premeditation, abuse of superior
strength and treachery, attack, assault and stab with the said bladed instrument the said Ambrocio Benedicto, hitting the latter
on his body, thereby causing him serious physical injuries which directly caused his death.
 Contrary to law.

Appellant Rios, assisted by counsel de oficio, entered a plea of "not guilty" to the charge against him. 3 Thereupon, trial on the merits of the
case ensued.

Ambrocio and Anacita Benedicto owned a sari-sari store in their house in Marigold Subdivision, San Jose del Monte, Bulacan. According to
Anacita, at around 6:30 in the evening of February 7, 1996, appellant Angel Rios, a neighbor, hurled stones at their house. A few minutes
later, and while the Benedicto spouses were tending their store, appellant bought cigarettes. Ambrocio confronted appellant about the
stoning incident and an altercation ensued between them. 4

As the two engaged in a verbal tussle, Joselino Mesa and his fellow barangay tanods named Amorsolo Dayao, Rivera and Espino who
were roving the vicinity, chanced upon the disputants. Having heard the appellant shout at Ambrocio, Mesa intervened and requested
the two to part ways. He even escorted them to their respective residences. 5

A few minutes later, appellant went back to the store. 6 Just then, Anacita saw her husband go to the terrace of their house. Appellant
suddenly approached Ambrocio and stabbed his right stomach. Anacita was only a meter away from the antagonists; she was facing her
husband's back while appellant was standing in front of Ambrocio. As Anacita started shouting, appellant fled. 7

Mesa and his group saw Anacita weeping while Ambrocio was lying lifeless in the terrace of their house. Anacita told the tanods that
appellant had stabbed her husband. One of the tanods assisted Ambrocio but the latter succumbed to death even before they could
reach the hospital. The postmortem certificate of death shows that Ambrocio died of "shock due to a stab wound at the chest around 3
cm. penetrating the right auricle (heart)." 8

Mesa and his companions arrested appellant in his brother's house thirty (30) minutes after the crime happened. 9The following day,
Anacita and Mesa executed sworn statements before the police. 10

With only appellant testifying, the defense interposed alibi. Appellant, a 39-year-old laborer from San Fernando, Romblon who had been
staying for two decades with his brother in Graceville, Marilao, Bulacan, had reported to his job in San Jose del Monte, Bulacan at 7:00 a.m.
of February 7, 1996. He stopped working at 5:00 p.m. and returned to his brother's house, reaching it at around 8:00 p.m. Moments later,
Joselino Mesa, accompanied by some barangays tanods, arrived and brought him to the municipal hall of San Jose del Monte. They did
not inform him that he was a suspect in the killing of Ambrocio Benedicto. 11 Appellant knew Ambrocio because they had built a house
near the Benedictos' residence and it was from the latter's store that they would buy their cooking needs. He denied having seen Amborcio
on that fateful day of February 7, 1996. 12

On December 3, 1997, the Regional Trial Court of Bulacan, Branch 22,1 rendered a Decision finding appellant guilty beyond reasonable
doubt for the murder of Ambrocio Benedicto. It found that the killing of Ambrocio was attended by the qualifying circumstance of
treachery but that abuse of superior strength is "comprehended" by said circumstance. It ruled out the presence of evident premeditation.
However, it considered dwelling as aggravating to the effect that even if the accused did not enter the victim's house, such as when he
shot the victim from under the house or when he fired the shot that fell the victim who was inside his house, said circumstance is
aggravating. The trial court thus disposed of Criminal Case No. 572-M-96 as follows:

WHEREFORE, in view of the foregoing, judgment is hereby rendered as follows:

1. finding the accused, ANGEL RIOS, GUILTY beyond reasonable doubt of the crime of murder as penalized under Art.
248, of the Revised Penal Code (as amended by Rep. Act No. 7659) and is hereby sentenced to suffer the death
penalty;

2. accused is ordered to pay the following amounts to the heirs of Ambrocio Benedicto:

P50,000.00 — for the life of the victim (Ambrocio Benedicto)

P32,892.00 — actual damages (supported by Exhibits C, D, E and E-1 and based on Table I) P82,892.00

With 6% interest on all amounts due from the filling of the information on April 24, 1996 until said amounts have been fully
paid.

SO ORDERED.

Appellant is now before this Court on automatic review of said Decision, with the following assignments of error:

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED
DESPITE INSUFFICIENCY OF EVIDENCE.
 II

THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE EXISTENCE OF TREACHERY AS A QUALIFYING CIRCUMSTANCE.

III

THE TRIAL COURT GRAVELY ERRED IN CONSIDERING DWELLING AS A GENERIC AGGRAVATING CIRCUMSTANCE.

IV

THE COURT A QUO GRAVELY ERRED IN AWARDING P32,892.00 AS ACTUAL DAMAGES.

The appeal is partly meritorious. While there is proof beyond reasonable doubt that appellant dealt the fatal stab wound upon Ambrocio
Benedicto, the trial court erroneously appreciated the qualifying circumstance of treachery. Hence, appellant cannot be held liable for
the crime of murder but for the lesser crime of homicide.

No cogent reason exists to overturn the trial court's assessment that Anacita Benedicto positively and unequivocally identified appellant as
the felon who stabbed her husband. It is doctrinal that the trial court's evaluation of the credibility of a testimony is accorded the highest
respect, for the trial court has an untrammeled opportunity to observe directly the demeanor of a witness and thus, to determine whether
he or she is telling the truth. 14 Anacita's testimony on the matter clearly supports the trial court's finding on the matter. Thus:

Fiscal:

q — Where is this Ambrocio Benedicto, your husband now?

a — He's already dead.

q — Tell us, what is the cause of death of your husband?

a — He was stabbed.

q — By whom madam witness?

a — By Angel Rios.

Fiscal:

q — Madam witness, if Angel Rios, is around in this courtroom will you be able to identify him?

Witness:

a — Yes, sir.

Fiscal:

Will you please stand up and look around and point him to us.

(Witness pointed to man in yellow shirt who gave the name of Angel Rios.)

Court:

q — Why do you say that it was Angel Rios who stabbed your husband?

a — Because I saw him.

Fiscal:

q — When was your husband stabbed by Angel Rios?

a — He was stabbed on February 7, 1996.

 Court:

q — At what time?

a — More or less 8:00 in the evening.

Fiscal:

q — Where?

a — In the terrace of our house.

q — Where is your house located?

a — In Muzon, San Jose del Monte, Bulacan. (Emphasis supplied.) 15

There is no doubt therefore, that Anacita had a good look at her husband's assailant and that she actually saw appellant stab Ambrocio as
she was only a meter away from them, behind her husband who was facing appellant. She could not have mistaken another man for
appellant because being neighbors, he was familiar to her. 16 Aside from being her neighbor, appellant even admitted that he used to be
a customer in the Benedictos' sari-sari store where he would buy cooking needs. Familiarity with the physical features, particularly those of
the face, is the best way to identify a person. 17 Thus, in the absence of an established ill motive on the part of Anacita, her identification of
appellant as her husband's killer should be given full faith and credit, her relationship with the victim notwithstanding. Relationship with the
victim per se is not proof of prejudice. 18

Anacita's failure to name the weapon used by appellant and to recall his position as he stabbed Ambrocio cannot diminish her credibility.
Her relative position to the two accounts for Anacita's failure to see the details surrounding the incident. Witnesses are not expected to
remember every single detail of an incident with perfect or total recall. 19Nevertheless, Anacita's one-meter distance from the two enabled
her to observe the manner by which appellant stabbed Ambrocio — he did so in a manner described in the dialect as
"pakadyot," 20 meaning the bladed instrument came from underneath.

Appellant's positive identification of appellant as the perpetrator of the crime was thus proven beyond reasonable doubt by the consistent
and firm testimony of Anacita Benedicto. Consequently, such positive identification effectively effaced appellant's alibi. 21 That she was the
only eyewitness to the killing presented by the prosecution did not in any way dilute the evidentiary value of her credible testimony. It is
entrenched in jurisprudence that the testimony of a single witness, if found convincing and credible by the trial court, is sufficient to support
a finding of guilt beyond reasonable doubt. 22

However, appellant is correct in arguing that treachery did not attend the commission of the crime. Its presence was not established
beyond reasonable doubt. As this Court said in People v. Derilo:

It is an ancient but revered doctrine that qualifying and aggravating circumstance before being taken into consideration for the
purpose of increasing the degree of the penalty to be imposed must be proved with equal certainty and clearness as that which
establishes the commission of the act charged as a criminal offense. It is not only the central fact of a killing that must be shown
beyond reasonable doubt; every qualifying and aggravating circumstance alleged to have been present and to have attended
such killing, must similarly be shown by the same degree of proof. 2

In this case, the prosecution failed to discharge its duty under the law as regards the qualifying circumstance of treachery. There is
treachery when the offender commits any of the crimes against persons, employing means, methods or forms in the execution thereof
which tend directly and specifically to insure its execution without risk to himself arising from the defense which the offended party may
make. To constitute treachery, these two conditions must be present: (1) employment of means of execution that gives the person
attacked no opportunity to defend himself or retaliate; and (2) the means of execution were deliberately or consciously adopted. 24

Treachery may not be appreciated where, as in this case, the attack against the victim cannot be categorized as unexpected and
unforeseen so as to deprive him the opportunity to defend himself. By the facts of the case, where the incident of the victim berating the
accused for throwing stones at his residence preceded the fatal assault, a possible retaliation by the accused was not remote. As this Court
has repeatedly held, there is no treachery when the victim is placed on guard, as when a heated argument preceded the attack,
especially when the victim was standing face to face with his assailant. In that instance, the initial assault could not have been
unforeseen. 25

Moreover, where treachery is alleged, the manner of attack must be proven. Absent any particulars as to the manner in which the
aggression commenced or how the act which resulted in the death of the victim unfolded, treachery cannot be appreciated. 26 It cannot
be presumed or concluded merely on the basis of the resulting crime. 27 In the case at bar, the prosecution presented Anacita's ambiguous
testimony on how the attack began to support its claim that treachery attended the commission of the crime. Thus:

q — Before the stabbing was there conversation between them?

a — My husband went outside our terrace.

 q — Then what happened?

a — Then I saw him stabbed.

q — By whom?

a — By Angel.

q — What weapon?

a — I did not see the weapon used.

Court:

q — How many times?

a — Only once.

q — What did you do?

a — I shouted.

q — How far were you from the stabbing?

a — More or less one (1) meter.

Fiscal:

q — Madam witness, when your husband was stabbed by Angel Rios, what was his position at that time?

a — My husband was standing at that time.

q — Where was your husband hit by the stab of Angel Rios?

a — In his right stomach.

q — What is the position of the accused when he stabbed your husband?

a — I did not see.

q — You did not see who stabbed your husband? What I mean to say is was the accused also fronting your husband?

a — What I only saw, Your Honor, was my husband was stabbed." (Emphasis supplied) 28

On cross-examination, Anacita testified as follows:

q — Madam witness, I will be showing to you transcript of stenographic notes taken down on May 31, 1996. . .

Court:

What is the defense?

Atty. Tolentino:

He did not do it, Your Honor.

q — . . . by the question of the court, "What was the position of the accused when he stabbed your husband"?

Witness:
 a — "I did not see." It was "pakadyot" ma'am.

q — You said that the accused stabbed your husband in the manner that you said "pakadyot." Will you tell the court when your
husband was stabbed by the accused how was he positioned in relation to your husband?

a — He was facing my husband.

Court:

q — Sitting down or standing up?

a — They were standing up.

q — What about you, what was the position of the accused in relation to you when you said you saw the incident?

a — I cannot understand where I was.

q — What about your position in relation to your husband when the incident was happening?

a — I only saw it when I went out.

xxx xxx xxx

q — Will you tell the honorable court the position of your husband in relation to you? Was your husband's back towards you or was
your husband facing you?

a — My husband's back was in front of me.

q — What about the accused? How was he positioned in relation to you?

a — The accused was facing me frontally.

Atty. Tolentino:

q — And you said you were just one meter away from them?

a — I cannot remember because I did not see how he was stabbed. 29

From this testimony, it is indubitable that Anacita saw the stabbing incident but she could not describe exactly how it was commenced
notwithstanding what appears to be her conclusion that the stabbing was done in a "pakadyot" manner. This may perhaps be blamed on
the frailty of human memory but it does not obliterate the fact the she actually saw the stabbing incident. The doubt as to its manner or
mode of execution should therefore be resolved in favor of the appellant.

The trial court correctly appreciated the aggravating circumstance of dwelling or morada in this case. The word dwelling includes every
dependency of the house that forms an integral part thereof 30 and therefore it includes the staircase of the house 31 and much more, its
terrace. When a crime is committed in the dwelling of the offended party and the latter has not given provocation, dwelling may be
appreciated as an aggravating circumstance. 32Provocation in the aggravating circumstance of dwelling must be: (a) given by the
offended party, (b) sufficient, and (c) immediate to the commission of the crime. 3

We hold that the altercation between appellant and Ambrocio that immediately preceded the latter's fatal stabbing is not within the
purview of the concept of provocation under Article 14 (3) of the Revised Penal Code. The unrebutted facts established by the prosecution
show that it was the appellant who started the events that led to his unfortunate killing of Ambrocio, by stoning the latter's house. In an
apparent show of unmitigated braggadocio, appellant even went to the victim's house on the pretext of buying cigarettes after the stone-
throwing incident. The victim naturally confronted appellant about that incident. As the two engaged in heated argument, the roving
tanods interved and two parted ways. However, a few minutes later, appellant returned to the victim's house and right at the latter's
terrace, dealt him the fatal stab wound. Under these circumstances, to cater to appellant's claim that the victim provoked him would
amount to erasing the duly established fact that by stoning the victim's house, appellant himself instigated the heated argument that
resulted in his physical assault upon the victim.

The presence of the aggravating circumstance of dwelling warrants the imposition of exemplary damages against the appellant. 34 Such
damages, the award of which depends upon the Court's discretion, shall be a part of the civil liability that may be imposed upon the
appellant. 35 However, we agree with the Solicitor General that the trial court overlooked certain evidentiary requirements in the award of
actual damages. Actual damages cannot be allowed unless supported by evidence on record. 36 The trial court mainly based its award of
P32,892.00 on the photocopy of the receipt issued by the funeral parlor 37 and on a receipt issued by a livestock agricultural
corporation. 38 The prosecution reserved its right to present the original copy of the receipt of the funeral parlor evidencing payment of the
amount of P27,000.00 39 but it does not appear on record that it indeed presented that original copy. On the other hand, the receipt issued
by the Broadway Livestock Agricultural Corporation in favor of one Sotero Espiritu was in full payment of the amount of P5,092.00 for an
undecipherable purpose which the prosecution claimed was for "expenses." 40 However, considering that these "expenses" were not
explained and the absence of a duly established connection between the death of the victim and the "expenses" paid to a livestock
agricultural corporation, the receipt can not be given evidentiary weight.

It is necessary for a party seeking the award of actual damages to produce competent proof or the best evidence obtainable to justify
such award. Only substantiated and proven expenses, or those that appear to have been genuinely incurred in connection with the
death, wake or burial of the victim will be recognized in courts. The courts will not rely merely on suppositions or conjectures. 41 Hence, only
the amount of eight hundred pesos (P800.00) spent for the niche and funeral mass that is evidenced by an original receipt 42 shall be
awarded to the victim's heirs.

Under Article 249 of the Revised Penal Code, the penalty for the crime of homicide is reclusion temporal. In view of the presence of the
aggravating circumstance of dwelling or morada, the penalty should be imposed in its maximum period. 4 Applying the Indeterminate
Sentence Law, the imposable penalty shall be twelve (12) years of prision mayor, maximum to twenty (20) years of reclusion
temporal maximum.

WHEREFORE, the Decision appealed from is MODIFIED and appellant is found guilty of the crime of homicide and is meted to suffer an
indeterminate sentence of twelve (12) years prision mayor maximum to twenty (20) years reclusion temporal maximum, to indemnify the
heirs of Ambrocio Benedicto in the amount of P50,000.00, to pay exemplary damages of P20,000.00, and actual damages of
P800.00.1âwphi1.nêt

SO ORDERED.

[G.R. Nos. 137370-71. September 29, 2003]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SPO1 ARMANDO LOZANO @ AMID, (acquitted) DAVE SAMSON, (acquitted) EUTIQUIANO
PACAA, JR., @ TOKING PACAA, (acquitted) and RAUL OCO @ BOY USHER, accused,

RAUL OCO @ BOY USHER, appellant.

DECISION

PUNO, J.:

This is an Automatic Review of the Decision[1] of the Regional Trial Court of Cebu City, Branch 7, in Criminal Cases Nos. CBU- 46172-73
finding appellant Raul Boy Usher Oco guilty beyond reasonable doubt of the crimes of murder and frustrated murder, and imposing the
supreme penalty of death. The antecedent facts are as follows:

On January 19, 1998, the appellant, together with Armando Amid Lozano, Dave Samson and Eutiquiano[2] Toking Pacaa, Jr. were
charged with murder and frustrated murder in the Regional Trial Court of Cebu City, Branch 7. The Information for murder reads as follows:

That on or about the 24th day of November, 1997 at about 9:30 oclock in the evening, in the City of Cebu, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, riding on two motorcycles, conniving and confederating together and mutually
helping one another, together with Peter Doe, John Doe and Jane Doe, whose cases will be separately considered as soon as procedural
requirements are complied with, armed with unlicensed firearms, did then and there willfully, unlawfully and feloniously, with intent to kill,
and with treachery and evident premeditation and abuse of superior strength, attack, assault and use personal violence upon one Alden
Abiabiby shooting him with the use of said unlicensed firearms, hitting him on the different parts of his body, thereby inflicting upon the
latter mortal wounds which were the direct and immediate cause of his death thereafter.

CONTRARY TO LAW. [3]

The Information for the frustrated murder case reads:

That on or about the 24th day of November, 1997, at about 9:30 oclock in the evening, in the City of Cebu, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, riding on two motorcycles, conniving and confederating together and mutually
helping one another, together with Peter Doe, John Doe and Jane Doe, whose cases will be separately considered as soon as procedural
requirements are complied with, armed with unlicensed firearms, with deliberate intent, with intent to kill,
with treachery and evident premeditation and grave abuse of superior strength, did then and there suddenly attack, assault and use,
personal violence upon the person of one Herminigildo Damuag by shooting him with the use of said unlicensed firearms, hitting him on the
different vital parts of his body, thereby inflicting upon said Herminigildo Damuag serious physical injuries, which injuries under ordinary
circumstances would cause the death of the victim, thus performing all the acts of execution which would have produced the crime of
Murder as a consequence, but which nevertheless did not produce it by reason of causes independent of the will of the herein accused,
that is, by the timely and able medical assistance rendered to said Herminigildo Damuag which prevented his death.

CONTRARY TO LAW. [4]

Forthwith, the trial court issued a warrant for the arrest of the appellant and his co-accused. On January 20, 1998, upon learning of the
issuance of the warrant for his arrest, accused PO2 Armando Lozano turned himself to the authorities and filed an Urgent Motion[5] praying
that he be detained at the PNP Jail in Camp Sotero Cabahug, Gorordo Avenue, Cebu City. He feared that he might be a victim of reprisal
and vengeance in Bagong Buhay Rehabilitation Center (BBRC) since many of the persons he has arrested as a police officer were
detained in the facility. On January 21, 1998, appellant Raul Oco surrendered to the authorities and filed an Urgent Motion [6] praying similar
relief sought by accused Lozano. Police Senior Inspector Pablo Gayacan Labra II returned to the court the unserved warrants. [7]

In the afternoon of January 21, 1998, Judge Martin A. Ocampo issued an Order [8] acting favorably on the request of the appellant
and his co-accused to be detained at Camp Sotero Cabahug instead of at the BBRC.

Accused Dave Samson was arrested that same day,[9] while accused Eutiquiano Pacaa voluntarily surrendered to the police
authorities on January 26, 1998.[10]

On January 29, 1998, Judge Martin issued an Omnibus Order[11] directing the detention of all accused at the BBRC for the duration of
the trial. That same day, the appellant and his co-accused were arraigned in both cases. Assisted by their respective counsels, all of them
entered a plea of not guilty to both charges.[12] The cases were tried jointly pursuant to Rule 119, sec. 14 of the Rules on Criminal Procedure.

During the trial, the prosecution presented twelve (12) witnesses while the defense presented thirty-one (31) witnesses.

Surviving victim Herminigildo Damuag testified that at around 9:30 p.m. of November 24, 1997, he was driving his motorcycle (referred
to as the first motorcycle in the Records) along V. Rama Avenue, Cebu City with the late Alden Abiabi riding with him at the back. When
they reached the vicinity of Pica Lumber, a white Tamaraw FX AUV overtook their motorcycle (first motorcycle) and blocked their path,
forcing him to slow down.[13] Another motorcycle (second motorcycle), with two (2) riders on it, appeared behind the first motorcycle. From
a distance of about two (2) to three (3) meters, one of the riders of the second motorcycle suddenly fired two (2) shots in close succession.
Damuag attempted to look at the tires of his motorcycle, thinking that they have exploded. Suddenly, Abiabi pushed him with his
body. Abiabi fell from the first motorcycle and slumped on the pavement face down. The Tamaraw FX AUV sped away.[14]

As Damuag was trying to control his motorcycle, he noticed another motorcycle (third motorcycle) passed by from behind him. His
motorcycle zigzagged towards the gutter. Damuag was thrown off and hit the ground. He stood up and realized that he was hit at the right
side of his body. He then heard a burst of gunfire from behind.[15]

Damuag saw the third motorcycle at about two (2) to three (3) meters. It was on a stop. Appellant was at the back of the third
motorcycle, holding a short firearm in his right hand. Appellant fired his gun at him but missed. Although wounded, Damuag was able to
run. However, the third motorcycle chased him. Upon reaching the vicinity of Five Brothers restaurant, Damuag stopped because he could
not pass anymore.From a distance of about four (4) to five (5) meters, the appellant again fired two (2) more shots at Damuag.[16] The third
motorcycle sped away towards B. Rodriguez Street.[17] Damuag was initially rushed to the Southern Islands Hospital. About three (3) hours
later, his wife brought him to the Sacred Heart Hospital. He survived the attack due to the timely medical attention given to him at the latter
hospital.[18]

The attending physician, Dr. Dale Pasco, testified that when Damuag was brought to the hospital, the latter was bleeding profusely
from the four (4) gunshot wounds at his back, two (2), at the side of his chest, and one (1), at the abdominal area. Damuag was
immediately operated on. The doctor opined that without the surgery, Damuag would have died due to the gunshot wounds he
sustained.[19]

Damuag was confined at the Sacred Heart Hospital from November 25, 1997 to December 10, 1997. [20] Subsequently, he was moved
to CIG hospital. His hospitalization bills allegedly amounted to P160,000.00.[21] He likewise spent five thousand pesos (P 5,000.00) for
medicines after having been discharged from the hospital. Prior to the shooting incident, he was earning P 150.00 a day as a driver of
Marilou Aznar. The incident made him feel fearful for his life.[22]

Alden Abiabi did not survive the ambush. He sustained eight (8) gunshot wounds on the different parts of his body. Dr. Jesus P.
Cerna testified that a bullet was deeply embedded in Abiabis thoracic vertebrae and had not been retrieved despite diligent efforts to
extract the same. Necropsy Report No. N-97-191 revealed that he died due to shock, secondary to multiple gunshot wounds, face, body
and extremities.[23] At the time of his death, Abiabi was working as a legal researcher at Clear, Inc., with a monthly income
of P 8,000.00.[24] Mrs. Amelia Abiabi testified that she spent a total of P 250,000.00 for funeral services; P50,000.00 of which was spent for the
coffin alone.[25]

Damuag testified that he did not recognize the driver and the passenger of the second motorcycle and the driver of the third
motorcycle because they were wearing their helmets.[26] He, however, recognized the appellant as one of the triggermen because the
appellant was not wearing helmet at the time of the shooting incident. Instead, he had a towel tied around his forehead. The appellant was
wearing a sleeveless undershirt (sando) and maong short pants. [27]

Ronald Barellano, a sixteen-year (16) old candle and flower vendor, corroborated Damuags identification of the appellant as the
second gunman. He testified that on the night of the shooting incident, he was in the company of eight other (8) children, [28] including
another eyewitness, 14-year old Salem Tenebroso. They were buying barbeque in a store across the cemetery when a blue colored
motorcycle (first motorcycle) driven by Herminigildo Damuag, with Alden Abiabi as a backrider, passed by them. Suddenly, a white
Tamaraw FX blocked the first motorcycle, causing it to reduce its speed. Then, a black-colored motorcycle (second motorcycle) passed
from behind the first motorcycle, and its backrider fired two shots at Abiabi. Abiabi fell from the motorcycle while Damuag continued
driving in a zigzag manner. Damuag eventually fell to the ground five (5) meters away from Abiabi.[29]

Moments later, another motorcycle (third motorcycle) arrived at the scene. The motorcycle stopped and its backrider stepped his
right foot on the ground. Without alighting from the third motorcycle, the backrider, whom Barellano recognized as the appellant, fired
three (3) successive shots at Abiabi who was still sprawled on the ground face down.[30] Damuag tried to get near Abiabi but the appellant
also fired at him. Damuag ran away, but the third motorcycle was able to catch up with him near the Five Brothers Restaurant. Appellant
again shot Damuag twice. The third motorcycle then sped away.[31]

Barellano claimed that when the first shooting occurred, he and his companions walked towards the fallen Abiabi and stayed at a
distance of around four (4) to five (5) meters. Thus, he had a good look at the face of the appellant when he arrived aboard the third
motorcycle and shot Abiabi and Damuag.[32] Furthermore, the place was illuminated by a lamp post.[33] He recalled that the appellant had
a towel wrapped around his forehead.[34] He knew the appellant even prior to the shooting incident. He used to accompany his friend,
Salem Tenebroso, whenever the latter would go to the residence of the appellant to feed the latters roosters. Barellano,
however, failed to recognize the three (3) other riders of the motorcycles because they were wearing helmets.[35] After the shooting
incident, people milled at the crime scene. Barellano recognized barangay tanods Nato Maraveles and Zaldy Regodo in the crowd.[36]

For his part, Magno Ybanez, Jr. claimed that several minutes before the shooting incident, he saw the appellant and the three (3)
accused (Dave Samson, Lorenzo Amid Lozano, and Eutiquiano Toking Pacaa) beside two (2) motorcycles parked along the sidewalk near
the cemetery. At that time, the three (3) accused were not yet wearing their helmets. At 9:00 p.m., Ybanez, Jr. was walking along V. Rama
Avenue, in front of Pica Lumber, when a motorcycle went past him. Although the two (2) riders were wearing their helmets, Ybanez, Jr.
claimed that accused Samson was driving the second motorcycle, with accused Lozano as his passenger. Lozano allegedly shot twice at
Abiabi, the passenger of the first motorcycle. Shortly thereafter, the third motorcycle, driven by Pacaa, appeared at the scene and its
passenger, the appellant, fired at Abiabi and Damuag. Pacaa was then wearing his helmet while the appellant only had a towel tied
around his forehead.[37]

Virginia Gamboa claimed that she also saw the three (3) accused and the appellant a couple of hours or so before the shooting
incident along V. Rama Avenue. [38] Samson was wearing a black jacket and a puruntong short pants, Lozano was wearing a
white sando and maong pants, while Pacaa was in short pants and maong jacket. The appellant was in a sleeveless undershirt, with a
towel tied around his forehead.[39] The accused were not yet wearing their helmets. She recognized the three (3) accused and the
appellant because she was only about five (5) to six (6) meters away from them and there was a bright light coming from the VECO
post. She got curious why the accused and the appellant were there but she shrugged the thought off and went home.[40]

After dinner, Gamboa went out and proceeded towards Pica Lumber. She waited at a nearby store for her husband to come home
from work. She then saw the accused and the appellant near the cemetery.They drove their motorcycles toward Lucio Drive and came
back towards Nadelas compound. Gamboa claimed she recognized the three (3) accused although they wore their helmets because the
front covers of the helmets were transparent. Samson was driving the motorcycle, with Lozano riding behind him. The motorcycle driven by
Pacaa, with the appellant as passenger, was right behind Samson and Lozanos motorcycle. They were following the motorcycle of
Damuag and Abiabi that was cruising at normal speed along V. Rama Avenue.[41]

Suddenly, a white Tamaraw FX AUV cut-off Damuags motorcycle. Without much ado, Lozano, then riding another motorcycle, shot
Abiabi twice. The latter fell on the ground. Damuags motorcycle zigzagged and hit the ground. Lozano and Samson fled on board their
motorcycle. The motorcycle of Pacaa and the appellant stopped near Abiabi who was then sprawled on the ground face down. The
appellant fired several shots at Abiabi. Thereafter, the appellant fired at Damuag while the latter was trying to stand up. Damuag was
hit. He tried to run, but Pacaa and the appellant chased him on board their motorcycle. The appellant again shot Damuag until he fell on
the ground. The appellant and Pacana sped towards the direction where the other two (2) accused had earlier fled.[42]

Gamboa personally knew the three (3) accused and the appellant even before the shooting incident. Lozano is known as a
policeman in their locality. The appellant, also known as Boy Usher in their place, was a barkada of her late husband, Rene Gamboa, while
Pacaa is the brother-in-law of her brother-in-law. She also knew Samson since 1992 as she had seen him in the cockpit when she went there
to fetch her husband.[43]

The prosecution theorized that the shooting incident was drug-related. The late Abiabi was a known anti-drug advocate while the
appellant was a suspected drug lord. The other accused, on the other hand, allegedly had connections with the drugs trade.[44]

The appellant and his co-accused denied any participation in the shooting incident.

The appellant testified that at the time of the shooting incident, he was inside a chapel in Sambagan. He claimed that on November
24, 1997, he played mahjong from 3:00 p.m.- 9:00 p.m.[45] At around 9:00 p.m., he proceeded home to have supper and thereafter, went
out to look for his five- year old son.[46] Not able to find his son, the appellant proceeded to Sambagan to meet Boy Misa and inform the
latter that he could not lend him some money. On his way to Sambagan, he passed by a sari-sari store in A. Lopez St. and bought a bottle
of Red Bull. The appellant also passed by the Our Lady of Lourdes Chapel. He noticed that the door was slightly opened so he went in to
look at the clothes of the Virgin[47] for he intended to change the Virgins clothes for the forthcoming fiesta celebration.

Upon entering the chapel, the appellant saw a group of women who informed him that the scheduled meeting that night in the
chapel in connection with the forthcoming fiesta celebration was postponed. He recognized one of them as the wife of his co-accused
Toking Pacaa. Appellant was seated at the cement floor for a few minutes when he heard an unusual burst. However, he did not bother to
investigate the origin or nature of the unusual burst. He asked some people inside the chapel if they had seen Boy Misa but none of them
did. He went out of the chapel, proceeded to a store across the chapel, and inquired from a group of persons milling around the store the
whereabouts of Misa. Appellant was told that Misa was there earlier but had left however, and they did not notice where he went. [48]

The appellant proceeded home and went to bed. His son and daughter soon arrived and slept with him. A few minutes later, his wife,
along with his sister-in-law and some neighbors, awakened him and told him that his kumpadre and good friend, Alden Abiabi, was shot at
V. Rama St. He was shocked upon learning the information because the victim had no known enemy.[49]

The appellant changed his shirt and went towards Sambagan to inquire about the incident. On his way to Sambagan, he saw a
group of women who told him that his good friend Alden was shot. He met another group who relayed the same information when he
arrived in Sambagan. The appellant proceeded to A. Lopez and stayed at the barbeque stand until past 2:00 a.m.[50]

The appellant was thus surprised when he learned that he was implicated in the shooting of Alden. He and Abiabi were good
neighbors and friends and he had no motive to kill the victim. He denied that he was a drug lord. [51] He also said that he was not in good
terms with his three co-accused, hence, there was no basis for the alleged conspiracy. The appellant also charged Magno Ybaez with bias
as he was one of the suspects in the killing of the latters older brother.[52] Lolita Mosqueda,[53] Ernesto Herhuela[54] and Herminia
Ferraren[55] were presented to corroborate appellants defense of alibi.

Accused Armando Lozano, on the other hand, claimed that on November 24, 1997, he was training fighting cocks in the cockpit
arena from 9:00 p.m. until 1:00 a.m. of the next day. Accused Lozanos companions, Vic Lozano, [56] Prospero Lozano, [57] Ritchie
Ho,[58] Ramon Tabares[59] and Bendicto Orge,[60] corroborated his alibi. Accused Dave Samson asserted that he was in Larena, Siquijor on
the night of November 24, 1997. His alibi was corroborated by Felizardo Balmadres.[61] Accused Eutiquio Toking Pacaa alleged that he was
sleeping at his house at the time of the incident.[62]

The defense also presented Salem Tenebroso, Jr., Patsy Bolls, and PO1 Bienvenido Arlan, Jr. to prove that none of the alleged
eyewitnesses recognized any of the perpetrators of the crime. Tenebroso, 14-year old, is one of Barellanos companion on the eve of
November 24, 1997. Previously, he issued an Affidavit wherein he identified the appellant as one of the malefactors in the shooting
incident.[63] Thereafter, he executed an Affidavit of Recantation,[64] claiming that he did not recognize any of the perpetrators because all
of them were wearing helmets. Tenebroso testified in court that shortly after the incident, he and Junnie Quigao were brought to the CIG
Office at Camp Sotero Cabahug and were interviewed by a policeman. The two of them told the police officer that they could not
recognize the persons who shot Abiabi because they were all wearing helmets. However, they were told by the investigator to state that
the appellant was the one who killed Abiabi.[65]

For her part, Patsy Bolls, a reporter of Sunstar Super Balita Daily, testified that on December 7, 1997, she interviewed Damuag at the
Sacred Heart Hospital where the latter was confined.[66] During the course of the interview, Damuag told her that he did not see who shot
him and Abiabi.[67] The contents of the interview were printed on the December 8, 1997 issue of the SunStar Super Balita.[68] Bolls further
testified that the interview was witnessed by another reporter, Garry Cabotaje of Sunstar Daily, and photographer Alex
Badayos.[69] Damuags wife, a lady whom she surmised as Damuags neighbor, other patients, and the policemen guarding Damuag were
also inside the room during the interview.[70]

PO1 Arlan, Jr. corroborated Bolls testimony. He told the court that he was inside Damuags room during his interview. PO1 Arlan, Jr.
claims that he heard Damuag telling the reporter that he did not recognize any of his assailants. His curiosity was aroused by Damuags
answer. So after Bolls interview, he asked Damuag if the latter really did not recognize who shot him and Abiabi. Damuag confirmed that
he did not recognize any of the assailants.[71]

Teresita Bunal[72] and Eduardo Nabua[73] testified that prosecution witness Virgilia Gamboa was not present during the shooting
incident. Rosalia Ybanez Nadela[74] and Christy Labistre,[75] on the other hand, contradicted Magno Ybanezs claim that he was within the
vicinity of the incident and saw the tragic event.

After the trial, the trial court found the appellant guilty of murder and frustrated murder. The trial court disregarded Salem Tenebrosos
Affidavit of Recantation and gave full credence to his previous Affidavit identifying the appellant as one of the gunmen. Further, the court
doubted the credibility of eyewitnesses Gamboa and Ybanez, Jr. who claimed to have seen not only the face of the appellant but of his
three (3) co-accused as well. Thus, the appellants co-accused were acquitted. The dispositive portion of the trial courts Judgment, dated
December 16, 1998, provides:

WHEREFORE, this Court hereby makes the following dispositions:

1). In Crim. Case No. CBU-46172: the Court finds accused Raul Oco alias Boy Usher Guilty beyond reasonable doubt as principal in the
crime of Murder defined and penalized by Article 248 of the Revised Penal Code in relation to Article 7659 and hereby sentences him to
Death. Said accused is further ordered to indemnify the heirs of the deceased Alden Abiabi in the sum of One Million Pesos (P1,000,000.00);

2). In Crim. Case No. CBU-46173: the Court finds accused Raul Oco alias Boy Usher Guilty beyond reasonable doubt as principal in the
crime of Frustrated Murder defined and penalized by Article 248 in relation to Article 50 of the Revised Penal Code and hereby sentences
him to suffer the penalty of Reclusion Perpetua and to indemnify the victim Herminigildo Damuag in the sum of Five Hundred Thousand
Pesos (P500,000.00);

3). In Crim. Case Nos. CBU-46172 for Murder and CBU-46173 for Frustrated Murder on the ground of reasonable doubt- accused SPO2
Armando Lozano alias Amid Lozano, Dave Samson, and Eutiquiano Pacaa alias Toking Pacaa are ACQUITTED-because there is no moral
certainty in the unprejudiced mind of this Court that said three (3) other accused had participated in the commission of the crimes with
which they were charged (Rule 133, Rules of Court).

Costs de officio.

SO ORDERED.

The case is now with this Court for review.

The appellant insists that he has no motive to kill Abiabi, a known anti-drug advocate, because he is not a drug lord as the
prosecution depicted him to be during trial.[76] In fact, Mrs. Abiabi admitted during trial that she has a debt of gratitude to the appellant as
the latter lent her some money in the past.[77] Furthermore, Damuag is his close friend and he has no reason to injure.[78]

The appellant also assails that his identification as one of the assailants of Abiabi and Damuag is incredulous because it is against
human experience for an assassin to kill without covering his face to prevent his identification. He claims that the fact that his co-accused
used helmets to hide their identities would make it more logical for him to use also a helmet while shooting at Abiabi and Damuag in plain
view of many witnesses.[79] The appellant insists on his alibi that he was inside a chapel in Sambagan, Cebu City, while the shooting incident
was in progress.
 We affirm the judgment of conviction.

Motive is not an essential element of a crime, and hence, need not be proved for purposes of conviction. [80] Standing alone, the
failure of the prosecution to adduce proof of the appellants motive to kill Abiabi and injure Damuag would not exculpate him, especially
since he was positively identified by at least two credible witnesses as one of the assailants.

To be sure, the fact that the appellants companions wore helmets does not make his identification by the eyewitnesses
incredulous. We agree with the Solicitor Generals observation that criminals carry out their criminal designs differently. Some cover their
faces, but others boldly perform their criminal acts in full view of the public. The records show that appellant belongs to the latter category.

Ronald Barellano gave a detailed account of the incident, and emphatically claimed that he saw the appellant when he shot
Abiabi, viz:

ATTY. SENO:

Q: In other words, Master Barellano, when you turned your eyes towards where Abiabi was, the first two (2) shots which you
heard were already fired?

WITNESS:

A: Yes, sir.

Q: And what you saw when you turned your eyes towards where the two (2) shots, the first two (2) shots were fired, was Abiabi
who fell on the ground?

A: Yes, sir.

Q: In other words, you did not witness the actual firing of the first two (2) shots. Is that correct?

WITNESS:

A: I saw when he was shot twice.

COURT TO WITNESS:

Q: You mean before he was shot by Raul Oco you saw somebody else shooting Abiabi while he was riding at the back of the
motorcycle?

WITNESS:

A: I saw when he was shot.

Q: You actually saw Abiabi being shot while he was still riding on a motorcycle?

A: Yes, Your Honor.

Q: And you saw him fell down with (sic) the motorcycle as a result of the shooting?

A: Yes, Your Honor.

Q: Who shot him?

A: I do not know the person, Your Honor.

Q: Where was he located, the person who first shot Abiabi?

A: The person was backriding on a motorcycle.

Q: There were two (2) persons on that motorcycle?

A: Yes, Your Honor.

Q: You said you saw Raul Oco in (sic) that crime scene. When did you first see Raul Oco? When he was still riding on a
motorcycle?

A: I saw Raul Oco at the time he shot (Abiabi).

Q: You did not see him riding a motorcycle before the shooting?

A: No, Your Honor.

Q: You never saw him riding a motorcycle before the shooting started or before you saw him shooting Abiabi?

A: While Raul Oco was riding a motorcycle I did not see his face. I saw his face at the time he shot Abiabi.

Q: You saw his face at the time he shot Abiabi?

A: Yes, Your Honor.

Q: Did you see Raul Oco while he was still riding a motorcycle before the shooting or before he shot Abiabi?

A: Yes, Your Honor.

 Q: Did you see his face while he was seated in the motorcycle?

A: No, Your Honor, I did not see his face.

Q: How did you know that it was Raul Oco if you did not see his face?

A: When the motorcycle stopped and he stepped his right foot on the ground and shot I saw his face.

Q: So, that was the only time that the person you saw riding that motorcycle before was Raul Oco?

A: Yes, Your Honor.

Q: Because the person you saw riding in (sic) the motorcycle have (sic) the same clothes as Raul Oco when he was shooting
Abiabi?

A: Yes, Your Honor.

Q: And you saw that person riding the motorcycle wearing that towel around his head that you described before?

A: Yes, Your Honor. [81]

Barellanos testimony on how the appellant shot Damuag is equally clear. His testimony reads as follows:

COURT:

So let us ask him again

Q: Do you mean that Raul Oco, when you saw him shooting Abiabi, was still on the top of the motorcycle?

A: Yes, Your Honor.

ATTY. SENO:

Q: So, after that person who fired the three (3) successive shots space(d) at less than a second from each other completely fired
the three (3) shots, he sat back straight on the motorcycle and sped away? Is that not correct?

A: No, sir.

Q: What did he do?

A: He still shot Damuag.

Damuags testimony identifying Raul Oco as his gunman was unequivocal, direct and leaves no room for doubt. He related in open
court how he was able to identify the appellant that tragic night, thus:

COURT TO WITNESS:

Q: Alright that first shot that hit you, did you glance back already and saw Raul Oco immediately after you were hit?

WITNESS:

A: I saw him and I face (sic) him.

Q: You saw him immediately after the first shot was fired that hit you?

A: Yes, Your Honor.

Q: Did he fire another shot at you afterwards?

A: At the time I ran away he fired another shot, Your Honor.

Q: And that second shot hit you?

A: No, Your Honor.

Q: So, you glanced back and saw the accused Raul Oco in between the first and the second shot. Is that correct?

A: When I stood up after I was slumped I saw Raul Oco, Your Honor.

Q: I thought you said you glanced back after you were hit by the first shot. You did not. So when you were hit by the first shot,
did you glance back immediately at Raul Oco?

A: I saw Raul Oco, Your Honor.

Q: After you were hit?

A: Yes, Your Honor.[82]

The appellants identity as one of the assailants became even more apparent after a series of clarificatory questions propounded by
Judge Ocampo on Damuag, to wit:

COURT:
 Q: Alright lets ask him again for the last time. Were you hit by the first shot?

WITNESS:

A: At the time when my motorcycle was in a zigzag manner I was already hit, Your Honor.

Q: Did you see who fired that shot at you that hit you?

A: No, Your Honor.

Q: You did not. So after you were hit you immediately glanced back and saw Raul Oco?

A: When my motorcycle was in a zigzag manner I slumped to the gutter then stood up and I saw Raul Oco.

Q: You saw him after you were hit by the first shot?

A: Yes, Your Honor.

Q: So that is very clear- he saw Raul Oco when he glanced back after he was hit by the first shot. So what happened? Did he
shoot you again?

A: Yes, Your Honor.

Q: You saw him shooting at you?

A: Yes, Your Honor?

Q: You actually saw Raul Oco shooting at you the second shot he fired?

A: Yes, Your Honor.

Q: But that second shot did not hit you?

A: Yes, Your Honor, I was not hit.

Q: And then you ran away?

A: Yes, I ran away, Your Honor.

Q: And you suffered three (3) other gunshot wounds. Is that correct?

A: Yes, Your Honor.

Q: Did you see actually Raul Oco fire those three (3) other shots at you?

A: Yes, Your Honor.

Q: So you actually saw him shooting at you those three (3) shots?

A: Yes, Your Honor.[83]

Despite the cross-examination by the defense counsel, Damuag was unmoved. He firmly asserted that notwithstanding the wounds
he sustained from the first shot, he glanced back and saw appellant Oco fire his gun at him.

ATTY. BRAGAT:

Q: After the shot that did not hit you, your instinct was to run away with all immediacy because you feared for your life. Correct?
Having been wounded earlier?

A: Yes, sir.

Q: And you are telling the Honorable Court that while running away for fear of (sic) your life you still turned your back to see
what was at your back so that you could see Oco firing those three (3) shots hitting you?

A: I did not run fast because I was already hit.

COURT:

That does not answer the question.

WITNESS:

Yes, sir, I saw Raul Oco.

COURT TO WITNESS:

Q: So inspite of the three (3) hits you still looked at? (sic)

A: Yes, Your Honor.[84]

We stress the rule that findings of the trial court on the credibility of witnesses must be respected and not disturbed on appeal, unless
there is a compelling reason to revise them. The trial court is in the best position to calibrate the credibility of the eyewitnesses, having seen
and heard them testify in court as they recount events that took place that fateful evening.[85]
 We see no reason to deviate from this rule.

It is to be noted that Damuag is not just an ordinary eyewitness. He is a survivor of that tragic incident. His identification of his attacker
deserves full credit. It is the natural reaction of victims of criminal violence to strive to see the looks and faces of their assailants and observe
the manner in which the crime was committed. Most often, the face of the assailant and the body movements create lasting impression
that cannot be easily erased from their memory.[86] The Court finds Damuags testimony credible as it is replete with details and
corroborated on material points by Ronald Barellano, also a credible witness. These two eyewitnesses had no ulterior motive to be
untruthful in their identification of appellant as one of the culprits. Where there is nothing to indicate that a witness was actuated by
improper motive, his positive identification and categorical declarations on the witness stand under solemn oath deserve full faith and
credence.[87]

The failure of Damuag to reveal the identity of his assailants shortly after the shooting incident does not taint his credibility. He was in
critical condition when rushed to the Sacred Heart Hospital. Dr. Dale Pasco opined that Damuag would have died due to the wounds he
sustained if he were not immediately operated on. He was placed in the intensive care unit (ICU) until November 30, 1997 and stayed at
the hospital until December 10, 1997 without adequate security.

In her testimony, Patsy Bolls revealed that on December 7, 1997, she was sent by her editor to verify Congressman Cuencos complaint
that there were no policemen guarding Damuag at the Sacred Heart Hospital. She interviewed some people and was able to verify the
complaint, thus:

Q: Why did you go to that hospital?

A: Because earlier Congressman Cuenco called the police informing us that nobody, no policeman was guarding Damuag in
his room and we were assigned by our Editor-in-Chief, Atty. Seares to see and for us to confirm how true the information of
Cong. Cuenco (is).

Q: Were you able to interview the police officers?

A: Yes sir, I asked them how true (is) the allegation that earlier on the day there were no policemen assigned there to guard
Damuag.

Q: And what was the answer of the police officers?

A: They said it was true because the duty in the hospital was from 8:00 to 4:00; 4:00 to 12:00; 12:00 to 8:00. So those policemen-
when we went there those policemen were assigned on the 4:00 to 12:00 shifting. So it was true that there were no
policemen assigned during the 8:00 to 4:00 shifting.

Q: Were there other matters that you interviewed the police about?
A: Actually, I did not interview the policemen, it was them who divulged the information that earlier a certain Junjun, brother of
Abiabi went to see and almost he made a scene in the room and almost according to the policemen almost choke him
but I didntit was alleged that was their statement and it was confirmed by Damuag and his wife that it was true because
this certain Junjun was really angry with Damuag thinking that Damuag was part of the crime. [88]

PO1 Bienvenido Arlan, Jr. also admitted before the court that there was no one guarding Damuag in the morning of December 7,
1997. He also testified that Damuags life was in danger, viz:

COURT TO WITNESS

Q: How did you come to know that the person you are going to guard is one of the victims in the shooting incident?
A: Your Honor, when we were ordered by Sinugbuhan to guard Damuag, we were also informed that Damuag was one of the
victims and his life is (sic) in danger.

Q: Did you know or come to know why nobody was guarding Damuag prior to your shift?
A: I do (sic) not know, Your Honor.

Q: But those police officers in that shift failed to appear?

A: Yes, Your Honor.

(PROS. GALANIDA)

Q: Did you come to know who were those tasked to guard Damuag before your shift at 4:00 oclock of December 7?
A: Yes, mam, it was PO3 Teves and PO1 Baquerquer.

Q: They were not there in their post? Correct?

A: Yes, mam.

Q: Did you come to know what happened to them?

A: No, mam.

Q: You did not hear that they were sanctioned or what?

A: They were sanctioned, mam. Teves is now in the Detachment of Cebu City Mobile Group and Baquerquer is now in Sta.
Catalina, Negros Oriental. [89]

Given the circumstances, it is but natural for Damuag not to disclose the identity of his assailants. It would be unfair to expect
Damuag, a surviving witness to a tragic incident, to further expose himself to the danger possibly accompanying his revelation of the
appellants identity.

As against his positive identification by the prosecution witnesses, the appellants alibi is worthless. For alibi to prosper, the requirements
of time and distance must be strictly met. It is not enough to prove that the accused was somewhere else when the crime was committed;
he must also demonstrate by clear and convincing evidence that it was physically impossible for him to be at the scene of the crime during
its commission.[90] Ferraren, who allegedly saw the appellant at the chapel at the time of the shooting incident testified that the distance
between the chapel and the crime scene can be negotiated on foot within five minutes. [91] Given this distance, it is not impossible for
appellant to be at the scene when the crime was committed.

That the other accused were acquitted does not necessarily mean that the appellant likewise deserves an acquittal. Accused
Lozano, Pacaa and Samson were acquitted based on reasonable doubt as to their identity. This does not negate the trial courts findings on
the existence of the acts constituting the crimes alleged in the Informations. In any event, appellants conviction does not only result from
the trial courts finding of conspiracy but from his own act of shooting Abiabi and Damuag.

We come now to the proper designation of the crimes committed by the accused and the corresponding penalties for these crimes.

We agree with the trial court that treachery attended the killing of Abiabi and the wounding of Damuag. There is treachery when the
offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly
and specially to insure its execution, without risk to himself arising from the defense which the offended party might take. [92] For treachery to
exist, two conditions must be found: (1) that at the time of the attack, the victim was not in a position to defend himself; and (2) the
offender consciously adopted the particular means, method or form of attack employed by him.[93] In the case at bar, the motorcycle
driven by Damuag (first motorcycle) was suddenly blocked by a white Tamaraw FX. Without any warning, the backrider of the second
motorcycle, coming from behind, suddenly fired successive shots at Damuag and Abiabi. While Abiabi was helplessly laid at the pavement
face down due to the wounds he sustained, appellant mercilessly shot at him. On the other hand, Damuag, already wounded, tried to
escape but appellant pursued him and shot at him three more times. The unexpected and sudden attack on the victims, rendering them
unable and unprepared to defend themselves, such suddenness having been meant to ensure the safety of the gunman as well as the
success of the attack clearly constitutes alevosia.[94]

The trial court also found that the offenses were committed with abuse of superior strength. The malefactors not only outnumbered
the victims; at least two of them were armed. More, the circumstances clearly show that the assailants deliberately took advantage of their
combined strength in order to consummate the crime. Nevertheless, the aggravating circumstance of abuse of superior strength is
absorbed by treachery.[95]

We also agree with the trial court that the generic aggravating circumstance of use of motor vehicle is present. The appellant and his
companions used motor bicycles in going to the place of the crime, in carrying away the effects thereof, and in facilitating their escape.

We do not agree with the trial court, however, in its appreciation of the aggravating circumstance of nighttime. This circumstance is
considered aggravating only when it facilitated the commission of the crime, or was especially sought or taken advantage of by the
accused for the purpose of impunity. The essence of this aggravating circumstance is the obscuridad afforded by, and not merely the
chronological onset of, nighttime.[96] Although the offense was committed at night, nocturnity does not become a modifying factor when
the place is adequately lighted, and thus could no longer insure the offenders immunity from identification or capture. [97] In this case at bar,
a lamp post illuminated the scene of the crime.

Likewise, we find that the offenses were not committed by a band. A crime is deemed to have been committed by a band or en
cuadrilla when more than three armed malefactors take part in its commission.[98]The four armed persons contemplated in this
circumstance must all be principals by direct participation who acted together in the execution of the acts constituting the crime. The
Code does not define or require any particular arms or weapons; any weapon which by reason of its intrinsic nature or the purpose for
which it was made or used by the accused, is capable of inflicting serious or fatal injuries upon the victim of the crime may be considered
as arms for purposes of the law on cuadrilla. In the case at bar, the prosecution alleged that the accused and his three other co-
conspirators used unlicensed firearms in the perpetration of the offenses. However, the evidence on record shows that only two of them
carried firearms. En cuadrilla, as an aggravating circumstance, cannot therefore be appreciated.

There was also no evidence presented to show that the offenses were committed with the aid of armed men. Aid of armed men or
persons affording immunity requires that the armed men are accomplices who take part in minor capacity, directly or indirectly.[99] We note
that all four accused were charged as principal. The remaining suspects --- John Doe, Jane Doe and Peter Doe--- were never identified
and charged. Neither was proof adduced as to the nature of their participation.

There was also a paucity of proof to show that evident premeditation attended the commission of the crimes. For this circumstance to
be appreciated, there must be proof, as clear as that of the killing, of the following elements: (1) the time when the offender determined to
commit the crime; (2) an act indicating that he clung to his determination; and (3) sufficient lapse of time between determination and
execution to allow himself time to reflect upon the consequences of his act. [100] Evident premeditation must be based on external facts
which are evident, not merely suspected, which indicate deliberate planning. There must be direct evidence showing a plan or
preparation to kill, or proof that the accused meditated and reflected upon his decision to kill the victim. [101] No such evidence was
presented to prove the presence of this circumstance.

In the same vein, no evidence was adduced to prove that the firearms used in the shooting incident were unlicensed, hence, this
circumstance cannot be appreciated.

The presence of treachery qualified the killing of Abiabi to Murder punishable by reclusion perpetua to death under Art. 248 of the
Revised Penal Code, as amended by Rep. Act. No. 7659, viz:

ART. 248. Murder.- Any person who, not falling within the provisions of Article 246 shall kill another, shall be guilty of murder and shall be
punished by reclusion perpetua to death if committed with any of the following attendant circumstances:

1. With treachery, taking advantage of superior strength, with aid of armed men, or employing means to weaken the defense or of means
or persons to insure or afford impunity. (emphasis supplied)

The presence of the aggravating circumstance of the use of motor vehicle would have raised the penalty to death, pursuant to Art.
63 of the Revised Penal Code, if not for the presence of the mitigating circumstance of voluntary surrender which the trial court failed to
appreciate.
 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 latters agent; and (3) the surrender was voluntary. [102] Further, the
surrender must be spontaneous in such a manner that it shows the interest of the accused to surrender unconditionally to the authorities,
either because he acknowledged his guilt or because he wishes to save them the trouble and expenses necessarily incurred in search and
capture.[103] All these requisites have been complied with in the case at bar.

The records reveal that the warrant for the appellants arrest was issued on January 19, 1998. Immediately upon learning its issuance,
and without having been served on him, the appellant contacted his co-accused PO2 Lozano and communicated his desire to surrender.
PO2 Lozano called City Director, Police Superintendent Alejandro Carpio Lapinid and voluntarily surrendered himself at around 7:00 p.m. of
January 20, 1998. As per their agreement, the appellant was fetched by SPO2 Perfecto Silvederio Codiera at around 12:15 a.m. of January
21, 1998, and was directly brought to the PNP Jail at Camp Sotero Cabahug, Gorordo Ave., Cebu City. Police Senior Inspector Pablo
Gayacan Labra II issued a compliance report attaching thereto the unserved warrants, and explaining the attendant circumstances, viz:

The COMPLIANCE/RETURN OF WARRANT OF ARREST

That on the 20th day of January 1998 this office received the original copy of the Warrant of Arrest against Police Officer 2 Armando
LOZANO, Raul OCO @ Boy Usher, Dave SAMSON and Eutiquio PACAA, Jr., all residents of A. Lopez St., Lobangon, Cebu City for Violation of
Murder and Frustrated Murder issued and signed by that Honorable Court dated 19 January 1998.

However, at about 7:00 oclock in the evening of January 20, 1998, Police Officer 2 Armando LOZANO voluntarily surrendered to City
Director, Police Superintendent Alejandro Carpio LAPINID while at around 12:15 oclock in the morning of January 21, 1998, Raul OCO @ Boy
Usher was fetched by Senior Police Officer 2 Perfecto Silvederio Codiera and immediately brought to this office. [104]

Moreover, one of the reasons cited by Judge Ocampo in acting favorably to the request of the appellant and accused Lozano to be
detained at the PNP Jail at Camp Sotero Cabahug, Gorordo Avenue, Cebu City instead of the Bagong Buhay Rehabilitation Center
(BBRC) was their voluntary surrender, viz:

In the meantime and until further orders of this Court- since this case is now under the jurisdiction of Branch 7 presided by undersigned
judge- and since the said accused had voluntarily surrendered to the authorities anyway- they may continue to be detained at the PNP
Jail where they have been brought after their surrender- since their transfer to the BBRC forthwith would obviously expose them to the harm
or danger that they are precisely adverting to and explained by them in their aforesaid Urgent Motions. [105] (emphasis supplied)

Finally, the appellants testimony as to the circumstances of his voluntary surrender was never rebutted. He testified as follows:

Q: When did you see him (accused Dave Samson) again from that last time you said 1993 when you saw him last?

A: At the time I surrendered at Gorordo.

Q: When you said you surrendered, you surrendered to whom?

A: At first, I approached Atty. Bragat and I also approached Dodong Lozano and Dodong Lozano called up thru telephone at
the camp.

Q: And did you in effect voluntarily surrender at the camp?

A: Yes, sir.

Q: Do you recall when was that?

A: On January 21, 1998.

Q: You said you surrendered voluntarily at the camp on January 21, 1998. Was that voluntary surrender in relation to these two
cases for which you now stand trial?

A: Yes, sir.[106]

Like any other common criminal, the appellant could have opted to go on hiding. But he chose to surrender himself to the authorities
and face the allegations leveled against him. True, he did not admit his complicity to the crimes charged against him but he nonetheless
spared the government of time and expense. For this, he should be credited with the mitigating circumstance of voluntary surrender. This
offsets the aggravating circumstance of the use of motor vehicle, and pursuant to Art. 63(4) of the Revised Penal Code, the appellant
should be meted the lesser of the two penalties, i.e., reclusion perpetua.

For the serious wounding of Damuag, the appellant committed frustrated murder, the same having been committed with intent to kill
and with treachery, as afore explained. A crime is at its frustrated stagewhen the offender performs all the acts of execution which would
produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the
perpetrator. The means and method employed by the appellant clearly show intent to kill. Indeed, Damuag could have died as a result of
the gunshot wounds he sustained if it were not for the timely operation performed on him. Under Art. 50 of the Revised Penal Code, the
penalty next lower in degree than that prescribed by law for the consummated felony shall be imposed upon the principal in a frustrated
felony. Applying the same offsetting of the aggravating circumstance of the use of motor vehicle and of the mitigating circumstance of
voluntary surrender, the penalty should have been reclusion temporal in its medium period. However, under the Indeterminate Sentence
Law, the court shall sentence the accused to an indeterminate sentence the maximum of which shall be that which, in view of the
attending circumstances, could be properly imposed under the rules of the said Code, and the minimum of which shall be within the range
of the penalty lower to that prescribed by the Code for the offense.[107] Considering all the circumstances, the indeterminate penalty of six
(6) years and one (1) day of prision mayor as minimum, and fourteen (14) years and eight (8) months of reclusion temporal as maximum
would be proper.

We come to the award of damages. The trial court ordered the appellant to indemnify the heirs of Abiabi and the victim Herminigildo
Damuag the amount of P1,000,000.00 and P500,000.00, respectively, without specifying what these amounts represent.

In line with the recent jurisprudence, we modify the amount due the heirs of Abiabi as follows: (a) P50,000.00 as actual damages
representing the duly receipted expense for the purchase of the coffin, (b) P50,000.00 as civil indemnity, and (c) P25,000.00 as temperate
damages.

Except for the cost of the coffin, the remainder of P250,000.00, which Mrs. Abiabi claimed to have spent for funeral and burial
services, is unsubstantiated and therefore, cannot be awarded.

Furthermore, although Mrs. Abiabi testified that her husband earned P8,000.00 monthly as a legal researcher of Clear, Inc., we cannot
award indemnity for loss of earning capacity in the absence of documentary evidence.[108] There are only two exceptions to the general
rule requiring documentary evidence for claims for damages for loss of earning capacity: (1) if the deceased is self-employed earning less
than the minimum wage under current labor laws, and judicial notice may be taken of the fact that in the victims line of work no
documentary evidence is available; or (2) if the deceased is employed as a daily wage worker earning less than the minimum wage under
current labor laws.[109] Clearly, this case does not fall under the exceptions.

We reduce the amount due the victim Herminigildo Damuag. Damuag cannot recover actual damages for aside from his bare
allegations that he spent P160,000.00 for hospitalization and P5,000.00 for medicinal needs, there is nothing on the record to substantiate his
claim. In lieu of this, we award the amount of P25,000.00 as temperate damages since it cannot be denied that he has suffered some
pecuniary loss because of the incident.

IN VIEW WHEREOF, the joint decision on review is hereby AFFIRMED with the following MODIFICATIONS.

(1) In Crim. Case No. CBU-46172, appellant RAUL OCO @ BOY USHER is found GUILTY beyond reasonable doubt of MURDER under Art.
248 of the Revised Penal Code, as amended by Rep. Act No. 7659, and is sentenced to suffer the penalty of reclusion
perpetua. He is ORDERED to pay the heirs of Alden Abiabi the amount of P50,000.00 as actual damages, P50,000.00 as
civil indemnity, andP25,000.00 as temperate damages.

(2) In Crim. Case No. CBU-46173, appellant RAUL OCO @ BOY USHER is found GUILTY beyond reasonable doubt of FRUSTRATED
MURDER and is sentenced to suffer an indeterminate penalty of six (6) years and one (1) day of prision mayor as
minimum, to fourteen (14) years and eight (8) months of reclusion temporal as maximum. He is ORDERED to indemnify
Herminigildo Damuag the amount of P25,000.00 as temperate damages.

Costs de officio.

SO ORDERED.

PEOPLE OF THE PHILIPPINES, G. R. No. 170470

Ap p e l l e e ,
Present:

P AN G AN I B AN , C . J . ,

PUNO,

Q U I S U M BI N G ,
- versus -
Y N AR E S - S AN T I AG O ,

S AN D O V AL - G U T I E R R E Z ,

C AR P I O ,

AU S T R I A- M AR T I N E Z ,

EDNA MALNGAN y MAYO, C O R O N A,

Ap p e l l a n t . C AR P I O M O R AL E S ,

C AL L E J O , S R . ,

AZ C U N A,

T I N G A,

C H I C O - N AZ AR I O ,
 G AR C I A, a n d

V E L AS C O , J R . , J J .

Promul gated:

September 26, 2006

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N

CHICO-NAZARIO, J.:

The Case

F o r r e v i e w i s t h e D e c i s i o n [ 1 ] o f t h e C o u r t o f Ap p e a l s i n C A- G . R . C R H C N o . 0 1 1 3 9 p r o m u l g a t e d o n 2
S e p t e m b e r 2 0 0 5 , a f f i r m i n g w i t h m o d i f i c a ti o n t h e Ju d g m e n t [ 2 ] o f t h e R e g i o n a l T r i a l C o u r t ( R T C ) o f M a n i l a , B r a n c h
41, i n Cri mi nal Case No. 01 -188424 promul gated on 13 October 2003, fi ndi ng appellant Edna Mal ngan y M ayo
( E d n a ) g u i l t y b e y o n d r e a s o n a b l e d o u b t o f t h e c r i m e o f Ar s o n w i t h M u l ti p l e H o m i ci d e o r Ar s o n r e s u l ti n g t o t h e
death of si x (6) peopl e, and sentenci ng her to suffer the penal ty of death.

The Facts

As s u m m a r i z e d [ 3 ] b y t h e C o u r t o f Ap p e a l s , t h e a n t e c e d e n t f a c t s a r e a s f o l l ow s :

From the personal account of Remi gi o Bernardo, the Barangay Chai rman in the area, as
w ell as the personal account of the pedi cab dri ver named Rolando Gruta, i t w as at around 4:45
a.m. on January 2, 2001 w hen Remi gi o Bernardo and hi s tanods saw the accused -appell ant
E D N A, o n e h i r e d a s a h o u s e m a i d b y R o b e r t o S e p a r a , S r . , w i t h h e r h e a d t u r n i n g i n d i f f e r e n t
di recti ons, hurr i edl y leaving the house of her employer at No. 172 M oderna Street, Bal ut, Tondo,
M a n i l a . S h e w a s s e e n t o h a v e b o a r d e d a p e d i c a b w h i c h w a s d r i v e n b y a p e r s o n l a t e r i d e n ti f i e d
as Rol ando Gruta. She w as heard by the pedi cab dri ver to have instructe d that she be brought
to Ni pa Street, but upon her arri val there, she changed her mi nd and asked that she be brought
i nstead to Bal asan Street w here she fi nally alighted, after payi ng for her fare.

Thi rty mi nutes l ater, at around 5:15 a .m. Bara ngay Chai rman Bernard os group later
di scovered that a fi re gutted the house of the empl oyer of the housemaid. Barangay Chai rman
Bernardo and hi s tanods responded to the fi re upon heari ng shouts from the resi dents and
thereafter, fi remen from the Fi re Di stri ct 1 -N CR arri ved at the fi re scene to contai n the fi re.

Wh e n B a r a n g a y C h a i r m a n B e r n a r d o r e t u r n e d t o t h e B a r a n g a y H a l l , h e r e ce i v e d a r e p o r t
from pedi cab dri ver Rolando Gru ta, w ho w as also a tanod , tha t shortl y before the occu rrence
of the fi re, he saw a woman (the housemaid ) comi ng out of the house at No. 172 M oderna
Street, Bal ut, Tondo, M anila and he recei ved a call from hi s w ife telling hi m of a w oman (the
s a m e h o u s e m a i d ) w h o w a s a c t i n g s t r a n g e l y a n d s u s p i ci o u s l y o n B a l a s a n S t r e e t . B a r a n g a y
Chai rman Bernardo, Rolando Grut a and the other tanods proceeded to Bal asan Street and
f o u n d t h e w o m a n w h o w a s l a t e r i d e n ti f i e d a s t h e a c c u s e d - a p p e l l a n t . Af t e r R o l a n d o G r u t a
p o s i ti v e l y i d e n t i f i e d t h e w o m a n a s t h e s a m e p e r s o n w h o l e f t N o . 1 7 2 M o d e r n a S t r e e t , B a l u t ,
Tondo, M anila, Barangay Chai rman Bernardo and hi s tanods apprehended her and brought her
t o t h e B a r a n g a y H a l l f o r i n v e s t i g a ti o n . At t h e B a r a n g a y H a l l , M e r c e d i t a M e n d o z a , n e i g h b o r o f
R o b e r t o S e p a r a , S r . a n d w h o s e h o u s e w a s a l s o b u r n e d , i d e n ti f i e d t h e w o m a n a s a c c u s e d -
appellant EDN A w ho w as the housemai d of Roberto Separa, Sr. Upon i nspecti on, a di sposabl e
l i g h t e r w a s f o u n d i n s i d e a c c u s e d - a p p e l l a n t E D N As b a g . T h e r e a f t e r , a c c u s e d - a p p e l l a n t E D N A
confessed to Barangay Chai rman Bernardo i n the presence of mul ti tudes of angry resi dents
outsi de the Barangay Ha ll that she se t her empl oyers house on fi re because she had not been
pai d her sal ary for about a year and tha t she w anted to go home to her provi nce but her
empl oyer tol d her to just ri de a broomsti ck i n going home.
 Ac c u s e d - a p p e l l a n t E D N A w a s t h e n t u r n e d o v e r t o a r s o n i n v e s t i g a t o r s h e a d e d b y
S[F] O4 Danilo Talusan, w ho brought her to the Sa n Lazaro Fi re Sta ti on i n Sta . Cruz, M anilaw here
she was further i nvesti gated and then detai ned.

Wh e n M e r c e d i t a M e n d o z a w e n t t o t h e S a n L a z a r o F i r e S t a t i o n t o g i v e h e r sw o r n
statement, she had the opportuni ty to ask accused -appell ant EDNA at the l atters detenti on cell
w hy she di d the burni ng of her empl oyers house and accused -appell ant EDN A repli ed that she
set the house on fi re beca use w hen she asked permi ssi on to go home to her provi nce, the w ife
o f h e r e m p l o y e r R o b e r t o S e p a r a , S r . , n a m e d V i r g i n i a S e p a r a ( s i c ) s h o u t e d a t h e r : S i g e u m u wi k a ,
p a g d a t i n g m o m a p u t i k a n a . S u m a k a y k a s a wa l i s , p a g d a t i n g m o m a p u t i k a n a ( T S N , J a n u a r y 2 2 ,
2002, p .6) ( Go ahead, w hen you arri ve your col or w oul d be fai r al ready. Ri de a broomsti ck,
w h e n y o u a r r i v e y o u r c o l o r w o u l d b e f a i r a l r e a d y . ) An d w h e n M e r c e d i t a M e n d o z a a s k e d
accused-appellant EDNA how she burned the house, accused -appell ant EDN A tol d
her: Naglukot ako ng ma raming diya ryo, sinindihan ko ng disposable lighter at hinagis ko sa
i b a b a w n g l a m e s a s a l o o b n g b a h a y ( T S N , J a n u a r y 2 2 , 2 0 0 2 , p . 7 . ) ( I c r u m p l e d n ew s p a p e r s ,
li ghted them w i th a di sposable li ghter and threw them on top of the tabl e i nsi de the house.)

Wh e n i n t e r v i ew e d b y C a r m e l i t a V a l d e z , a r e p o r t e r o f AB S - C B N N e t w o r k , a c c u s e d -
appellant EDN A w hile under detenti on (si c) w as heard by SFO4 ( si c) Da nilo Tal usan as havi ng
admi tted the cri me and even narrated the manner how she accompli shed i t. SFO4 (si c) Danilo
Tal usan w as abl e to hear the same confessi on, thi s ti me at hi s home, w hile w atchi ng the
t e l e v i s i o n p r o g r a m T r u e C r i m e h o s t e d b y G u s Ab e l g a s a l s o o f AB S - C B N N e t w o r k .

The fi re resul ted i n [the] destructi on of the house of Roberto Separa, Sr. and o ther
adjoi ni ng houses and the death of Roberto Separa, Sr. and Vi rgi nia Separa together w i th thei r
f o u r ( 4 ) c h i l d r e n , n a m e l y : M i c h a e l , D a p h n e , P r i s ci l l a a n d R o b e r t o , J r .

On 9 January 2001, an I nformati on [4] w as filed before the RTC of M anila, Branch 41, chargi ng accused -
a p p e l l a n t w i t h t h e c r i m e o f A r s o n wi t h Mu l t i p l e H o m i c i d e . T h e c a s e w a s d o c k e t e d a s C r i m i n a l C a s e N o . 0 1 -
188424. The accusatory porti on of sai d I nformati on provi des:

That on or about January 2, 2001, i n the Ci ty of M anila, Phili ppi nes, the sai d accused,
wi th i ntent to cause damage, di d then and there w illfull y, unl aw fully, fel oniousl y and
d e l i b e r a t e l y s e t f i r e u p o n t h e tw o - s t o r e y r e s i d e n t i a l h o u s e o f R O B E R T O S E P AR A a n d f a m i l y m o s t l y
made of w ooden material s l ocated at No. 172 M oderna St., Bal ut, Tond o, thi s ci ty, by li ghti ng
c r u m p l e d n ew s p a p e r w i th t h e u s e o f d i s p o s a b l e l i g h t e r i n s i d e s a i d h o u s e k n o w i n g t h e s a m e t o
be an i nhabi ted house and si tuated i n a thi ckl y popul ated pl ace and as a consequence thereof
a confl agrati on ensued and the sai d buil di ng, toge ther w i th some seven (7) adjoi ni ng
r e s i d e n ti a l h o u s e s , w e r e r a z e d b y f i r e ; t h a t b y r e a s o n a n d o n t h e o c c a s i o n o f t h e s a i d f i r e , t h e
f o l l ow i n g , n a m e l y ,

1. Roberto Separa, Sr., 45 years of age

2. Vi rgi nia Separa y M endoza, 40 years of age
3. Michael Separa, 24 years of age
4. Daphne Separa, 18 years of age
5. Pri scil la Separa, 14 years of age
6. Roberto Separa, Jr., 11 years of age

sustai ned burn i njuries whi ch w ere the di rect cau se of thei r death i mmediatel y thereafter. [5]

Wh e n a r r a i g n e d , a c c u s e d - a p p e l l a n t w i t h a s s i s t a n c e o f c o u n s e l d e o f i c i o , p l e a d e d [ 6 ] N o t G u i l t y t o t h e
cri me charged. Thereafter, tri al ensued. [7]

The prosecuti on presented fi ve (5) w i tnesses, namel y, SPO4 [8] Danil o Talusan, Rol ando Gruta, Re mi gio
Bernardo, M ercedi ta Mendoza and Rodol fo Movilla to establi sh i ts charge tha t accused -ap pell ant Edna
c o m m i t t e d t h e c r i m e o f a r s o n w i t h m u l ti p l e h o m i c i d e .

SPO4 Danil o Tal usan, arson i nvesti gator, testi fi ed that he w as one of those w ho responded to th e fi re
tha t occu rred on 2 January 2001 and w hi ch started at No. 172 M oderna St., Bal ut, Tondo, M anila. He sta ted
tha t the fi re killed Roberto Separa, Sr. and all the other members of hi s family, namel y hi s w ife, Vi rgini a, and hi s
chil dren, Mi chael , Daphne, Pri scilla and Roberto, Jr.; the fi re al so destroyed thei r abode as w ell as si x
n e i g h b o r i n g h o u s e s . H e l i k e w i s e t e s t i f i e d t h a t h e tw i c e h e a r d a c c u s e d - a p p e l l a n t o n c e w h i l e t h e l a t t e r w a s
b e i n g i n t e r v i e w e d b y C a r m e l i t a V a l d e z , a r e p o r t e r o f AB S - C B N , a n d t h e o t h e r t i m e w h e n i t w a s s h o w n o n
c h a n n e l 2 o n t e l e v i s i o n d u r i n g t h e a i r i n g o f t h e t e l e v i s i o n p r o g r a m e n t i tl e d T r u e C r i m e h o s t e d b y G u s Ab e l g a s
confess to havi ng committed the cri me charged, to w i t:

Pros. Rebagay:
Based on your i nvesti gati on, was there any occasi on when the accused Edna M al ngan
admi tted to the burni ng of the house of the Separa Famil y?
 x x x x

Wi t n e s s :
Yes, sir.

Pros. Rebagay:
Wh e n w a s t h a t ?

A: O n J a n u a r y 2 s h e w a s i n t e r v i e w e d b y t h e m e d i a , s i r . T h e o n e w h o t o o k t h e c o v e r a g e w a s
C a r m e l i t a V a l d e z o f C h a n n e l 2 , AB S - C B N . T h e y h a v e a f o o t a g e t h a t E d n a a d m i t t e d
before them, si r.

Q : An d w h e r e w e r e y o u w h e n E d n a M a l n g a n m a d e t h a t s t a t e m e n t o r a d m i s s i o n t o C a r m e l i ta
V a l d e z o f AB S - C B N ?

A: I w a s a t o u r o f f i c e , s i r .

Q : Wa s t h e r e a n y o t h e r o c c a s i o n w h e r e i n t h e a c c u s e d m a d e a n o t h e r c o n f e s s i o n r e l a ti v e t o t h e
admi ssi on of the cri me?

A: Y e s , s i r .

Q : Wh e n w a s t h a t ?

A: L a s t F r i d a y , s i r . I t w a s s h o w n i n T r u e C r i m e o f G u s Ab e l g a s . S h e w a s i n t e r v i e w e d a t t h e C i t y
Jail and she admi tted that she w as the one w ho authored the cri me, si r.

Pros. Rebagay:
An d w h e r e w e r e y o u w h e n t h a t a d m i s s i o n t o G u s Ab e l g a s w a s m a d e ?

A: I w a s i n t h e h o u s e a n d I j u s t s a w i t o n t v , s i r .

Q : Wh a t w a s t h a t a d m i s s i o n t h a t y o u h e a r d p e r s o n a l l y , w h e n y o u w e r e p r e s e n t , w h e n t h e
accused made the confessi on to Carmeli ta Val dez?

A: N a g l u k o t p o s i y a n g p a p e l , s i n i d i h a n n i y a n g l i g h t e r a t i n i l a g a y n i y a s a i b a b a w n g m e s a y u n g
mga di yaryo at sinunog niya.

x x x x

Q : As i d e f r o m t h a t s t a t e m e n t , w a s t h e r e a n y o t h e r s t a t e m e n t m a d e b y t h e a c c u s e d E d n a
Mal ngan?

A: Y e s , s i r . K a y a p o n i y a n a g a wa y o n g a l i t p o s i y a s a k a n y a n g a m o n a s i V i r g i n i a , h i n d i s i y a
p i n a s u we l d o a t g u s t o n a p o n i y a n g u m u wi n a (s i c ) a y a w s i y a n g p a y a g a n . N a g s a l i t a p a
p o s a k a n y a n a , S u m a k a y k a n a l a n g s a wa l i s . P a g b a l i k m o d i t o m a p u t i k a n a . (s i c ) Y o n
po ang sinabi ng kanyang amo.

Atty. M asw eng:

That w as a statement of an all eged dead person, your Honor.

Court:
Sabi ni Valdes, ha?

Pros. Rebagay:
S a b i n i E d n a Ma l n g a n k a y C a r m e l i t a V a l d e z , Y o u r H o n o r .

Court:
Double hearsay na yon.

Pros. Rebagay:
N o , Y o u r H o n o r , t h e w i tn e s s w a s p r e s e n t , Y o u r H o n o r , w h e n t h a t c o n f e s s i o n w a s m a d e b y t h e
accused to Carmeli ta Val dez. [9]

Rol ando Gruta, the pedicab dri ver and one of the barangay tanods i n the area, testi fi ed:

Pros. Rebagay:

M r . Wi t n e s s , w h a t i s y o u r p r o f e s s i o n ?
A: S i d e c a r d r i v e r , s i r .

Q: On January 2, 2001 a t around 4:45 i n the morning, do you recall w here w ere (si c) you?

A: I w a s a t t h e c o r n e r o f M o d e r n a S t r e e t , s i r .

Pros. Rebagay:

An d w h i l e y o u w e r e a t t h e c o r n e r o f M o d e r n a S t . , w h a t h a p p e n e d i f a n y , M r . Wi t n e s s ?

A: I s a w E d n a c o m i n g o u t f r o m t h e d o o r o f t h e h o u s e o f R o b e r t o S e p a r a , s i r .

Q: Do you know the number of the house of the Separa Family?

A: 1 7 2 M o d e r n a S t . , B a l u t , T o n d o , M a n i l a , s i r .

x x x x

Q : An d y o u s a i d y o u s a w E d n a c o m i n g o u t f r o m t h e h o u s e o f t h e S e p a r a F a m i l y . H o w f a r i s t h a t
house from the pl ace where you w ere w ai ti ng at the corner of M oderna and Paulino
Streets?

A: Ab o u t t h r e e m e t e r s f r o m M o d e r n a a n d P a u l i n o S t r e e t s w h e r e m y p e d i c a b w a s p l a c e d . M y
di stance was about three meters, si r.

x x x x

Q : An d h o w d i d y o u k n o w t h a t t h e h o u s e w h e r e E d n a c a m e o u t i s t h a t o f t h e h o u s e o f t h e
Separa Family?

A: M i s m o n g n a k i t a p o n g d a l a wa n g m a t a k o n a d o o n s i y a g a l i n g s a b a h a y n g S e p a r a F a m i l y .

Q: How l ong have you know n the Separa Famil y, i f you know them?

A: Ab o u t t w o y e a r s , s i r .

Q: How about thi s Edna, the one you just poi nted ( to) aw hile ago? Do you know her pri or
to January 2, 2001?

A: Y e s , s i r . I k n e w ( s i c ) h e r f o r t w o y e a r s .
Court:

Wh y ?

Wi t n e s s :

Madal as ko po si yang magi ng pasahero ng aki ng pedi cab.

Pros. Rebagay:

H o w a b o u t t h e S e p a r a f a m i l y ? Wh y d o y o u k n o w t h e m ?

A: T h e y w e r e t h e e m p l o y e r s o f E d n a , s i r .

Q : Y o u s a i d y o u s a w E d n a c o m i n g o u t f r o m t h e h o u s e o f t h e S e p a r a Fa m i l y . Wh a t h a p p e n e d
w hen you saw Edna coming out from the house of the Separa Famil y?

A: Wa l a p a p o n g a n o y a n n a i s a k a y k o n a s i y a s a s i d e c a r .

Q : An d w h a t d i d y o u o b s e r v e f r o m E d n a w h e n y o u s a w h e r c o m i n g o u t f r o m t h e h o u s e o f t h e
Separa family?

A: N a g m a m a d a l i p o s i y a n g l u m a k a d a t p a l i n g a - l i n g a .

x x x x

Q : Af t e r s h e b o a r d e d y o u r p e d i c a b , w h a t h a p p e n e d , i f a n y ?

A: N a g p a h a t i d p o s i y a s a a k i n .

Q : Wh e r e ?

A: T o N i p a S t r e e t , s i r .

Q: Di d you bri ng her to Nipa Street as she requested?

A: Y e s , s i r .

x x x x
Q : Y o u s a i d t h a t y o u b r o u g h t h e r t o N i p a S t r e e t . Wh a t h a p p e n e d w h e n y o u g o ( s i c ) t h e r e
at Ni pa Street, i f any?

A: N a g p a h i n t o p o s i y a d o o n n g s a g l i t , m g a t a t l o n g m i n u t o p o .

Q : Wh a t d i d s h e d o w h e n s h e a s k e d ( y o u ) t o s t o p t h e r e f o r t h r e e m i n u t e s ?

A: Af t e r t h r e e m i n u t e s s h e r e q u e s t e d m e t o b r i n g h e r d i r e c t l y t o B a l a s a n S t r e e t , s i r .

x x x x

Q : Wh a t h a p p e n e d a f t e r t h a t ?

A: W h e n w e a r r i v e d t h e r e , s h e a l i g h t e d a n d p a y ( s i c ) P 5 . 0 0 , s i r .

Q An d t h e n w h a t t r a n s p i r e d a f t e r s h e a l i g h t e d f r o m y o u r p e d i c a b ?

Wi t n e s s :

I went home and I looked for another passenger, si r.

Pros. Rebagay:

Af t e r t h a t , w h a t h a p p e n e d w h e n y o u w e r e o n y o u w a y t o y o u r h o u s e t o l o o k f o r p a s s e n g e r s ?

A N a k i t a k o n a n g a p o n a p a g d a t i n g k o s a Mo d e r n a , n a g l a l a g a b l a b n a a p o y .

Q: From w hat place w as that fi re comi ng out?

A: F r o m t h e h o u s e o f R o b e r t o S e p a r a F a m i l y , s i r .

x x x x

Pros. Rebagay:

Af t e r y o u n o t i c e d t h a t t h e r e w a s a f i r e f r o m t h e h o u s e o f R o b e r t o S e p a r a F a m i l y , w h a t d i d y o u
do if any?

A: S i y e m p r e p o , i s a n g B a r a n g a y Ta n o d p o a k o , n a g r e s p o n d e n a p o k a m i s a s u n o g . B i n u k s a n n a
po ng Chairman naming yung tangke, binomba na po naming yung apoy ng tubig.
Q : Af t e r t h a t i n c i d e n t , M r . Wi t n e s s , h a v e y o u s e e n E d n a Ag a i n ( s i c ) .

A: N o , s i r .

Pros. Rebagay:

An d a f t e r t h a t i n c i d e n t , d i d y o u c o m e t o k n o w i f E d n a w a s a p p r e h e n d e d o r n o t ?

x x x x

A: I w a s c a l l e d b y o u r B a r a n g a y C h a i r m a n i n o r d e r t o i d e n t i f y E d n a , s i r .

x x x x[10]

Remi gi o Bernardo, Baran gay Chai rman of the area w here the fi re occurred, s ta ted:

Pros. Rebagay:

On January 2, 2001, do y ou recall i f there i s a fi re tha t occurred somew here i n your area
of juri sdi cti on, parti cul arly M oderna Street?

A: Y e s , s i r .

Q: Now , w here w ere you w hen thi s inci dent happened?

A: K a s i u g a l i k o n a p o t u wi n g u m a g a n g - u m a g a p o a k o n a p u p u n t a s a b a r a n g a y H a l l m g a
s i g u r o 6 :0 0 o r 5 : 0 0 o c l o c k , m e s u m i g a w n g s u n o g n i r e s p o n d e h a n n a m i n i y o n g s u n o g e h
me dala kaming fire.

Court:

Y o u j u s t a n s w e r t h e q u e s t i o n . Wh e r e w e r e y o u w h e n t h i s i n ci d e n t h a p p e n e d ?

Wi t n e s s :

I was at the Barangay Hall , Your Honor.

Pros. Rebagay:

An d y o u s a i d t h a t t h e r e w a s a f i r e t h a t o c c u r r e d , w h a t d i d y o u d o ?
Wi t n e s s :

Iyon nga nagresponde kami doon sa sunog eh nakita ko iyong sunog mukha talagang
arson dahil napakalaki kaagad, meron pong mga tipong Iyong nama ta y po contractor
po iyon eh kaya s iguro napakaraming kalat ng mga pintura, mga container, kaya hindi
po namin naapula kaagad iyong apo y, nasunog ultimo i yong fi re tank n amin sa lakas,
sir.

Pros. Rebagay:

Now , will you please tell us w here thi s fi re occurred?

A: At t h e h o u s e o f t h e s i x v i c t i m s , s i r .

Q : Wh o s e h o u s e i s t h a t ?

A: T h e h o u s e o f t h e v i c t i m s , s i r .

x x x x

Pros. Rebagay:

You said that you responded to the pl ace, w hat transpi red after you responded to the
pl ace?

A: I y o n n g a p o a n g n a g s a b i m a y l u m a b a s n a i s a n g b a b a e p o n o o n s a b a h a y n a n a g m a m a d a l i
habang may sunog, me isang barangay tanod po akong nagsabi may humahangos na
isang babae na may dalang bag papunta po roon palabas ng sasakyan, sir.

Q : An d s o w h a t h a p p e n e d ?

A: S i y e m p r e h i n d i n a m a n a k o n a g t a n o n g k u n g s i n o n g a y o n m a y d u m a t i n g g a l i n g n a s a b a h a y
n a m i n g , m a y t u m a wa g , t u m a wa g p o s i K o n s e h a l a A l f o n s o n a m a y i s a n g b a b a e n a h i n d i
mapakali doon sa Calle Pedro Alfonso, ke konsehal na baka ito sabi niya iyong ganito
ganoon nirespondehan ko po, sir.

Q : Wh e r e d i d y o u r e s p o n d ?

A: At B a l a s a n , s i r , b u t i t s n o t t h e a r e a o f m y j u r i s d i c t i o n .

x x x x

Q : Wh a t h a p p e n e d w h e n y o u r e a c h e d t h a t p l a c e ?
A: S i y a p o a n g n a h u l i k o d o o n , s i r .

Court:

Wi t n e s s p o i n t i n g t o a c c u s e d E d n a M a l n g a n .

Pros. Rebagay:

An d w h a t h a p p e n e d ?

A: I b r o u g h t h e r t o t h e b a r a n g a y h a l l , s i r .

Q : An d w h a t h a p p e n e d a t t h e b a r a n g a y h a l l ?

A: I n e m b e s t i g a h a n k o , k i n u h a n a m i n g i y o n g b a g n i y a , m e l i g h t e r s i y a e h . I n a m i n n i y a p o s a
amin na kaya ni ya sinu nog hindi siya pinasasahod ng more or less isa ng taon na eh.
N g a y o n s a b i k o b a k i t e h g u s t o k o n g u m u wi n g p r o b i n s y a a n g s a b i s a a k i n n g a m o k o
s u m a k a y n a l a n g d a w p o a k o n g wa l i s t i n g t i n g p a r a m a k a u wi , s i r .

Atty. Herman:

We w o u l d l i k e t o o b j e c t , Y o u r H o n o r o n t h e g r o u n d t h a t t h a t i s h e a r s a y .

Pros. Rebagay:

That i s not a hearsay statement, Your Honor, strai ght from the mouth of the accused.

Atty. Herman:

I ts not under the exempti on under the Rul es of Court, Your Honor. He i s testi fyi ng
accordi ng to w hat he has heard.

Court:

T h a t s p a r t o f t h e n a r r a t i o n . Wh e t h e r i t i s t r u e o r n o t , t h a t s a n o t h e r m a t t e r . L e t i t r e m a i n .

Pros. Rebagay:

Now , w ho w ere present w hen the accused are telling you thi s?

A: I y o n n g a i y o n g m g a t a n o d k o , m a m a m a y a n d o o n n a k a p a l i g i d , s i y e m p r e m a y s u n o g
nagkakagulo, gusto nga siyang kunin ng mga mama ma yan para saktan hindi ko
m a i b i g a y p a p a t a y i n s i y a g a wa n g m a y n a m a t a y e h a n i m n a t a o a n d n a m a t a y , k a y a
i y o n g m g a t a o k i n o k o n t r o l s i y a m a d i d i s g r a s y a s i y a d a h i l p i n - p o i n t e d p o s i y a , Yo u r H o n o r ,
iyong dami na iyon libo iyong nakapaligid doon sa barangay hall napakahirap
a wa t i n . G u s t o n g - g u s t o s i y a n g k u n i n n g m g a t a o n g - b a y a n , n a g a l i t d a h i l a n g d a m i n g
bahay hong nasunog. [11]
 For her part, M ercedi ta Mendoza, one of the neighbors of the Separa Fa mily and w hose house was one
of those destroyed by th e fi re, recounted :

Pros. Rebagay:

M a d a m Wi t n e s s , o n J a n u a r y 2 , 2 0 0 1 , d o y o u r e c a l l w h e r e w e r e y o u r e s i d i n g t h e n ?

A: Y e s , s i r .

Q : Wh e r e w e r e y o u r e s i d i n g a t ?

A: At N o . 1 7 0 M o d e r n a S t . , B a l u t , T o n d o , M a n i l a , s i r .

Q : Wh y d i d y o u t r a n s f e r y o u r r e s i d e n c e ? Aw h i l e a g o y o u t e s t i f i e d t h a t y o u a r e n o w r e s i d i n g
at 147 M oderna St., Bal ut, Tondo, M anil a?

A: B e c a u s e o u r h o u s e w a s b u r n e d , s i r .

Q : M o r e o r l e s s , h o w m u c h d i d t h e l o s s i n c u r r e d o n t h e b u r n i n g o f y o u r h o u s e ( s i c )?

A: M o r e o r l e s s , P 1 0 0 , 0 0 0 . 0 0 , s i r

Q: Do you know the accused i n thi s case Edna Mal ngan?

A: Y e s , s i r .

Q : Wh y d o y o u k n o w h e r ?

A: S h e i s t h e h o u s e h e l p e r o f t h e f a m i l y w h o w e r e ( s i c ) b u r n e d , s i r .

Q : Wh a t f a m i l y ?

A: C i f a r a ( s i c ) f a m i l y , s i r .

Q : Wh o i n p a r t i c u l a r d o y o u k n o w a m o n g Ci f a r a ( s i c ) f a m i l y ?

A: T h e w o m a n , s i r .
Q : Wh a t i s t h e n a m e ?

A: V i r g i n i a M e n d o z a Ci f a r a ( s i c ) , s i r .

Q : Ar e y o u r e l a t e d t o V i r g i n i a M e n d o z a C i f a r a ( s i c )?

A: M y h u s b a n d , s i r .

Q : Wh a t i s t h e r e l a ti o n s h i p o f y o u r h u s b a n d t o t h e l a t e V i r g i n i a M e n d o z a C i f a r a ( s i c )?

A: T h e y w e r e f i r s t c o u s i n s , s i r .

Q: How far i s your house from the house of the Ci fara (si c) famil y?

A: M a g k a d i k i t l a n g p o . P a d e r l a n g a n g p a g i t a n .

Q : Y o u s a i d t h a t E d n a M a l n g a n w a s w o r k i n g w i t h t h e C i f a r a ( s i c ) f a m i l y . Wh a t i s t h e w o r k o f
Edna M al ngan?

A: N a n g a n g a m u h a n p o . H o u s e h e l p e r , s i r .

Q: How l ong do you know Edna M alngan as h ouse hel per of the Ci fara (sic) fami l y?

A: I c a n n o t e s t i m a t e b u t s h e s t a y e d t h e r e f o r t h r e e t o f o u r y e a r s , s i r .

Q: Do you know w ho caused the burni ng of the house of the Ci fara (si c) fa mily?

Wi t n e s s :

Edna M al ngan, si r.

Pros. Rebagay:

Wh y d o y o u k n o w t h a t i t w a s E d n a M a l n g a n w h o b u r n e d t h e h o u s e o f t h e C i f a r a ( s i c ) f a m i l y ?

A: W h e n t h e f i r e i n ci d e n t h a p p e n e d , s i r , o n J a n u a r y 3 , w e w e n t t o S a n L a z a r o F i r e S t a t i o n a n d I
saw Edna M al ngan detained there, si r.

Q : An d s o w h a t i s y o u r b a s i s i n p o i n ti n g t o E d n a M a l n g a n a s t h e c u l p r i t o r t h e o n e w h o b u r n e d
the house of the Ci fara (si c) famil y?
 A: I t a l k e d t o h e r w h e n w e w e n t t h e r e a t t h a t d a y , s i r .

Q : Wh a t t r a n s p i r e d t h e n ?

A: I t a l k e d t o h e r a n d I t o l d h e r , E d n a , b a k i t m o n a m a n g i n a wa y u n g g a n u n ?

Q : An d w h a t w a s t h e a n s w e r o f E d n a ?

A: S h e a n s w e r e d , K a s i p a g n a g p a p a a l a m a k o s a k a n y a n g u m u wi n g p r o b i n s y a , n a g p a p a a l a m
p o s i y a n g u m u wi n g p r o b i n s y a a n g s i n a s a b i d a w p o s a k a n y a n i B a b y C i f a r a ( s i c ) n a ,
( s i c )S i g e u m u wi k a , p a g d a t i n g m o m a p u t i k a n a . S u m a k a y k a s a w a l i s p a g d a t i n g m o
maputi ka na.

Pros. Rebagay:

Wh a t i s t h e b a s i s t h e r e t h a t s h e w a s t h e o n e w h o b u r n e d t h e h o u s e o f t h e C i f a r a ( s i c ) f a m i l y ?

A: I a l s o a s k e d h e r , P a a n o m o g i n a wa y u n g s u n o g ? S h e t o l d m e , N a g l u k o t a k o n g m a r a m i n g
diyaryo, sinindihan ko ng disposable lighter at hinagis niya sa ibaba w ng l amesa sa loob
ng bahay. (si c)[12]

Lastl y, the prosecu ti on presented Rodol fo M ovilla, ow ner of the house si tuated besi de that of
the Separa famil y. He testi fied that hi s house w as al so gutted by the fi re that killed the Separa family and that
he tri ed to hel p said vi ctims but to no avail .

The prosecuti on presented other documentary evidence [13] and thereafter rested i ts case.

Wh e n i t c a m e t i m e f o r t h e d e f e n s e t o p r e s e n t e x c u l p a t o r y e v i d e n c e , i n s t e a d o f d o i n g s o , a c c u s e d -
a p p e l l a n t f i l e d a Mo t i o n t o A d m i t D e m u r r e r t o E v i d e n c e [ 1 4 ] a n d t h e c o r r e s p o n d i n g D e m u r r e r t o E v i d e n c e [ 1 5 ] w i t h
the former expressl y sta ti ng tha t sai d Demurrer to Evidence w as bei ng filed x x x w i thout express l eave of court
x x x.[16]

In her Demurrer to E vidence , a ccused-appell ant asserts tha t the prosecu ti ons evi dence w as i nsuffici ent
to prove her guil t beyond reasona ble doubt for the follow ing reasons: [17] ( a ) tha t she i s charged w ith cri me not
d e f i n e d a n d p e n a l i z e d b y l a w ; ( b ) t h a t c i r c u m s t a n t i a l e v i d e n c e w a s i n s u f f i ci e n t t o p r o v e h e r g u i l t b e y o n d
reasonable doubt; and ( c) tha t the testi monies gi ven by the w i tnesses of the prosecu ti on w ere hearsay, thus,
i nadmi ssi ble i n evi dence agai nst her.

The prosecuti on filed i ts Commen t/Opposition to accused-appellants Demurrer to E vidence .

 O n 1 3 O c t o b e r 2 0 0 3 , a c t i n g o n t h e D e m u r r e r t o E v i d e n c e , t h e R T C p r o m u l g a t e d i t s Ju d g m e n t [ 1 8 ] w h e r e i n
i t proceeded to resol ve the subject case based on the evi dence of the prosecuti on. The RTC consi dered
accused-appellant to have w ai ved her ri ght to present evi dence, havi ng filed the Demurrer to
Evidence w i thout l eave of court.

I n f i n d i n g a c c u s e d - a p p e l l a n t E d n a g u i l t y b e y o n d r e a s o n a b l e d o u b t o f t h e c r i m e o f Ar s o n w i t h M u l ti p l e
Homi ci de, the RTC rul ed tha t:

The fi rst argument of th e accused that she i s charged w i th an act not defi ned and
penali zed by law i s w i thout meri t. x x x the capti on w hi ch charges the accused w i th the cri me of
Ar s o n w i t h M u l ti p l e H o m i ci d e i s m e r e l y d e s c r i p t i v e o f t h e c h a r g e o f Ar s o n t h a t r e s u l t e d t o
M u l t i p l e H o m i ci d e . T h e f a c t i s t h a t t h e a c c u s e d i s c h a r g e d w i t h Ar s o n w h i c h r e s u l t e d t o M u l ti p l e
Homi ci de (death of vi cti ms) and tha t char ge i s embodied and sta ted i n the body of the
i n f o r m a t i o n . Wh a t i s c o n t r o l l i n g i s t h e a l l e g a ti o n i n t h e b o d y o f t h e I n f o r m a t i o n a n d n o t t h e t i t l e
or capti on thereof. x x x.

x x x x

The second and thi rd arguments w ill be di scussed joi ntl y as they are i nt errel ated w i th
each other. x x x.

x x x x

[ W] h i l e t h e r e i s n o d i r e c t e v i d e n c e t h a t p o i n t s t o t h e a c c u s e d i n t h e a c t o f b u r n i n g t h e h o u s e o r
actuall y starti ng the subject fi re, the foll ow ing ci rcumstances that show that the accused
i ntenti onally caused or was responsi ble for the subject fi re have been dul y establi shed:

1 . t h a t i m m e d i a t e l y b e f o r e t h e b u r n i n g o f t h e h o u s e , t h e a c c u s e d h u r r i e d l y a n d w i th
head turni ng i n di fferent di recti ons (palinga -li nga ) w ent out of the sa i d house and rode a
pedi cab apparentl y not know ing w here to go x x x;

2. tha t i mmedi atel y after the fi re, upon a report tha t there w as a w oman i n Bal asan St.
w ho appears confused and apprehensi ve (bali sa), the Ba rangay Chai rman and hi s tanods w ent
there, found the accuse d and apprehen ded her and brought her to the barangay hall as show n
by the tes ti mony of Barangay Chai rman Remi gi o Bernardo ; and

3. tha t w hen she w as apprehended and i nvesti gated by the barangay offi ci al s and w hen
her bag w as opened, the same contai ned a di sposable lig hter as likew ise show n by the
testi mony of the Barangay Chai rman.

[T] he ti ming of her hurri ed departure and nervou s demeanor i mmedi atel y before the fi re w hen
s h e l e f t t h e h o u s e a n d r o d e a p e d i c a b a n d h e r s a m e d e m e a n o r , p h y s i c a l a n d m e n t a l c o n d i ti o n
w hen found and apprehended at the same place w here she alighted from the pedi cab and the
di scovery of the li ghter in her bag thereafter w hen i nvesti gated i ndi sputabl y show her guil t as
charged.

I f t h e r e i s a n y d o u b t o f h e r g u i l t t h a t r e m a i n s w i th t h e c i r c u m s t a n t i a l e v i d e n c e a g a i n s t h e r , t h e
s a m e i s r e m o v e d o r o b l i te r a t e d w i t h t h e c o n f e s s i o n s / a d m i s s i o n s o f t h e c o m m i s s i o n o f t h e o f f e n s e
and the manner thereof tha t she made to the prosecuti on w i tnesses Barangay Chai rman
Remi gi o Bernardo, Mercedi ta M endoza and to the medi a, respecti vel y.

x x x x
 [ H ] e r c o n f e s s i o n s / a d m i s s i o n s a r e p o s i ti v e a c k n o w l e d g m e n t o f g u i l t o f t h e c r i m e a n d a p p e a r t o
have been vol untaril y and i ntelli gentl y gi ven. These confessi ons/admi ssi ons, especi all y the one
gi ven to her nei ghbor Mercedi t a M endoza and the media, al bei t uncounselled and made w hile
she w as al ready under the custody of au thori ti es, i t i s believed, are not vi olati ve of her ri ght
under the Consti tuti on.

T h e d e c r e t a l p a r t o f t h e R T C s Ju d g m e n t r e a d s :

WH E R E F O R E , t h e D e m u r r e r t o E v i d e n c e i s h e r e b y d e n i e d a n d j u d g m e n t i s h e r e b y
r e n d e r e d f i n d i n g t h e a cc u s e d E D N A M AL N G AN Y M AY O g u i l t y b e y o n d r e a s o n a b l e d o u b t o f t h e
c r i m e o f Ar s o n w i t h M u l t i p l e H o m i ci d e o r Ar s o n r e s u l ti n g t o t h e d e a t h o f s i x ( 6 ) p e o p l e a n d
sentenci ng her to suffer t he mandatory penal ty of death, and orderi ng her to pay the hei rs of
the vi cti ms Roberto Sepa ra, Sr. and Vi rgi ni a Separa and chil dren Mi chael , Daphne, Pri scilla and
Roberto, Jr., the amount of Fi fty Thousand (P50,000.00) Pesos for each vi cti m and the amount of
One Hundred Thousand (P100,000.00) Pesos as te mperate damages for thei r burned house or a
to tal of Four Hundred Thousand (P400,000.00) Pes os and to Rodol fo Movilla the amount of One
Hundred [Thousand] (P100,000.00) Pesos.

D u e t o t h e d e a t h p e n a l t y i m p o s e d b y t h e R T C, t h e c a s e w a s d i r e c t l y e l e v a t e d t o t h i s C o u r t f o r
a u t o m a t i c r e v i e w . C o n f o r m a b l y w i t h o u r d e ci s i o n i n P e o p l e v . E f r e n Ma t e o y G a r c i a , [ 1 9 ] h o w e v e r , w e r e f e r r e d
t h e c a s e a n d i t s r e c o r d s t o t h e C A f o r a p p r o p r i a t e a c t i o n a n d d i s p o s i ti o n .

O n 2 S e p t e m b e r 2 0 0 5 , t h e C o u r t o f Ap p e a l s a f f i r m e d w i t h m o d i f i c a t i o n t h e d e c i s i o n o f t h e R T C ,
the fallo of w hi ch reads:

WH E R E F O R E , p r e m i s e s co n s i d e r e d , t h e a s s a i l e d O c t o b e r 1 3 , 2 0 0 3 J u d g m e n t o f t h e
Regi onal Tri al Court of Manil a, Branch 41 , fi nding accused -appell ant Edna M alngan y Mayo
g u i l t y b e y o n d r e a s o n a b l e d o u b t o f Ar s o n w i t h m u l ti p l e h o m i ci d e a n d s e n t e n c i n g h e r t o s u f f e r
t h e D E AT H P E N AL T Y i s h e r e b y AF F I R M E D w i t h M O D I F I C AT I O N i n t h a t s h e i s f u r t h e r o r d e r e d t o p a y
P50,000.00 as moral damages and another P50,000.00 as exempl ary damages for ea ch of the
vi cti ms w ho peri shed i n the fi re, to be paid to thei r hei rs. She i s ordered to pay Rodol fo M ovilla,
one w hose house w as al so burned, the sum of P50,000.00 as exempl ary damage.

Pursuant to Se cti on 13 (a), Rul e 124 of the 2000 R ules of Cri mi nal P rocedure as amended
b y A. M . N o . 0 0 - 5 - 0 3 - S C d a t e d S e p t e m b e r 2 8 , 2 0 0 4 , w h i c h b e c a m e e f f e c t i v e o n O c t o b e r 1 5 ,
2 0 0 4 , t h e C o u r t o f Ap p e a l s , a f t e r r e n d e r i n g j u d g m e n t , h e r e b y r e f r a i n s f r o m m a k i n g a n e n t r y o f
judgment and forthw i th certi fi es the case and elevates the enti re record of thi s case to the
Supreme Court for review.[20]

I t i s the contenti on of accused -appellant that the evi dence presented b y the prosecuti on i s not
s u f f i ci e n t t o e s t a b l i s h h e r g u i l t b e y o n d r e a s o n a b l e d o u b t a s t h e p e r p e t r a t o r o f t h e c r i m e c h a r g e d . I n s u p p o r t
o f s a i d e x c u l p a t o r y p r o p o s i ti o n , s h e a s s i g n s t h e f o l l o w i n g e r r o r s [ 2 1 ] :

I.

T H E H O N O R AB L E C O U R T E R R E D I N R U L I N G T H AT T H E CI R C U M S T AN T I AL E V I D E N C E P R E S E N T E D B Y T H E
P R O S E C U T I O N I S S U F F I CI E N T T O C O N V I C T T H E AC C U S E D ; a n d

II.

T H E H O N O R AB L E C O U R T E R R E D I N AL L O WI N G AN D G I V I N G C R E D E N C E T O T H E H E AR S AY E V I D E N C E
AN D U N C O U N S E L L E D A D M I S SI O N S AL L E G E D L Y G I V E N BY T H E AC C U S E D T O T H E WI T N E S S E S
B AR AN G AY C H AI R M AN R E M I GI O B E R N AR D O , M E R CE D I T A M E N D O Z A AN D T H E M E D I A.
 THERE IS NO COMPLEX CRIME OF ARSON WITH (MULTIPLE) HOMICIDE.

The Informa tion i n thi s case erroneousl y charged accused -appell ant w i th a complex crime , i.e., Arson
wi t h M u l t i p l e H o m i c i d e . P r e s e n t l y , t h e r e a r e t w o ( 2 ) l a w s t h a t g o v e r n t h e c r i m e o f a r s o n w h e r e d e a t h
r e s u l t s t h e r e f r o m A r t i c l e 3 2 0 o f t h e R e v i s e d P e n a l C o d e (R P C ), a s a m e n d e d b y R e p u b l i c A c t ( R A ) N o .
7 6 5 9 , [ 2 2 ] a n d S e c t i o n 5 o f P r e s i d e n t i a l D e c r e e (P D ) N o . 1 6 1 3 [ 2 3 ] , q u o t e d h e r e u n d e r , t o w i t :

Revised Penal Code:

AR T . 3 2 0 . D e s t r u c t i v e A r s o n . x x x x

I f as a consequence of the commission of any of the acts penalized under this

Article, death results, the mandatory penal ty of death shall be imposed. [Emphasi s supplied.]

Presidential Decree No. 1613:

S E C . 5 . Wh e r e D e a t h R e s u l t s f r o m A r s o n . I f b y r e a s o n o f o r o n t h e o c c a s i o n o f t h e a r s o n
d e a t h r e s u l t s , t h e p e n a l t y o f r e c l u s i o n p e r p e t u a t o d e a t h s h a l l b e i m p o s e d . [ E m p h a s i s s u p p l i e d .]

Art. 320 of the RPC, a s a m e n d e d , w i t h r e s p e c t t o d e s t r u c t i v e a r s o n , a n d t h e p r o v i s i o n s o f P D N o.

1613 respecti ng other c a s e s o f a r s o n p r o v i d e o n l y o n e p e n a l t y f o r t h e c o m m i s s i o n o f a r s o n , wh e t h e r
considered destructive o r o t h e r wi s e , wh e r e d e a t h r e s u l t s t h e r e f r o m . T h e r a i s o n d ' t r e i s t h a t a r s o n i s i t s e l f t h e
end and death i s si mply the consequence. [24]

Wh e t h e r t h e c r i m e o f a r s o n w i l l a b s o r b t h e r e s u l t a n t d e a t h o r w i l l h a v e t o b e a s e p a r a t e c r i m e a l t o g e t h e r , t h e
j o i n t d i s c u s s i o n [ 2 5 ] o f t h e l a t e M r . C h i e f J u s t i c e R a m o n C . Aq u i n o a n d M m e . J u s t i c e C a r o l i n a C . G r i o - Aq u i n o , o n
t h e s u b j e c t o f t h e c r i m e s o f a r s o n a n d m u r d e r / h o m i ci d e , i s h i g h l y i n s t r u c t i v e :

Groi zard says tha t w hen fi re i s used w i th the i ntent to kill a parti cular person w ho may be
i n a h o u s e a n d t h a t o b j e c t i v e i s a t t a i n e d b y b u r n i n g t h e h o u s e , t h e c r i m e i s m u r d e r o n l y . Wh e n
t h e P e n a l C o d e d e cl a r e s t h a t k i l l i n g c o m m i t t e d b y m e a n s o f f i r e i s m u r d e r , i t i n t e n d s t h a t f i r e
shoul d be purp osely adopted as a means to tha t end. There can be no murder w i thout a desi gn
t o t a k e l i f e . [ 2 6 ] I n o t h e r w o r d s , i f t h e m a i n o b j e ct o f t h e o f f e n d e r i s t o k i l l b y m e a n s o f f i r e , t h e
o f f e n s e i s m u r d e r . B u t i f th e m a i n o b j e c t i v e i s t h e b u r n i n g o f t h e b u i l d i n g , t h e r e s u l t i n g h o m i ci d e
may be absorbed by the cri me of arson. [27]

x x x x

I f the house w as set on fi re after the vi cti ms therei n w ere killed, fi re w ould not be a quali fyi ng
ci rcumstance . The accused w oul d be li abl e for the separate offenses of murder or homi ci de, as
the case may be, and arson.[28]

Ac c o r d i n g l y , i n c a s e s w h e r e b o t h b u r n i n g a n d d e a t h o c c u r , i n o r d e r t o d e t e r m i n e w h a t c r i m e / c r i m e s w a s /w e r e
p e r p e t r a t e d w h e t h e r a r s o n , m u r d e r o r a r s o n a n d h o m i ci d e / m u r d e r , i t i s d e r i g u e u r t o a s c e r t a i n t h e m a i n
o b j e c t i v e o f t h e m a l e f a c t o r : ( a ) i f t h e m a i n o b j e ct i v e i s t h e b u r n i n g o f t h e b u i l d i n g o r e d i f i c e , b u t d e a t h r e s u l t s
b y r e a s o n o r o n t h e o c c a s i o n o f a r s o n , t h e c r i m e i s s i m p l y a r s o n , a n d t h e r e s u l ti n g h o m i ci d e i s a b s o r b e d ; ( b ) i f ,
on the other hand, the mai n objecti ve i s to ki l l a parti cul ar person w ho may be i n a bui l di ng or edi fi ce, w hen
fi re is resorted to as the means to accompli sh such goal the cri me commi tted i s murder onl y; l astly, (c) i f the
o b j e c t i v e i s , l i k ew i s e , t o k i l l a p a r t i c u l a r p e r s o n , a n d i n f a c t t h e o f f e n d e r h a s a l r e a d y d o n e s o , b u t f i r e i s
resorted to as a means to cover up the killing, then there are tw o separate and di sti nct cri mes
commi tted homicide/murder and arson .

Wh e r e t h e n d o e s t h i s c a s e f a l l u n d e r ?

From a readi ng of the body of the I nformati on:

That on or about January 2, 2001, i n the Ci ty of M anila, Philippi nes, the sai d
accused, wi th intent to cause damage , di d then and there w illfully, unlaw full y, fel oni ousl y
a n d d e l i b e r a t e l y s e t f i r e u p o n t h e t wo - s t o r e y r e s i d e n t i a l h o u s e o f R O B E R T O S E P AR A a n d f a m i l y
mostl y made of wooden materi al s l ocated at No. 172 M oderna St., Bal ut, Tondo, thi s ci ty, by
l i g h ti n g c r u m p l e d n e w s p a p e r w i t h t h e u s e o f d i s p o s a b l e l i g h t e r i n s i d e s a i d h o u s e k n o w i n g t h e
same to be an i nhabited house and si tuate d i n a thi ckl y populated pl ace and as a
consequence thereof a confl agrati on ensued and the sai d buil ding, together w i th some seven
(7) adjoi ni ng resi denti al h ouses, w ere razed by fire; that b y reason and on the occasion of the
said fire , the foll ow ing, namel y,

1. Roberto Separa, Sr., 45 years of age

2. Vi rgi ni a Separa y Mendoza, 40 years of age
3. Michael Separa, 24 years of age
4. Daphne Separa, 18 years of age
5. P r i s ci l l a Separa, 14 years of age
6. Roberto Separa, Jr., 11 years of age

sustai ned burn i njuries w hi ch were the direct cause of thei r death i mmedi atel y
t h e r e a f t e r . [ 2 9 ] [ E m p h a s i s s u p p l i e d .]

a c c u s e d - a p p e l l a n t i s b e i n g c h a r g e d w i t h t h e c r i m e o f a r s o n . I t i t i s cl e a r f r o m t h e f o r e g o i n g t h a t h e r i n t e n t w a s
merel y to destroy her empl oyers house through th e use of fi re.

We n o w g o t o t h e i s s u e s r a i s e d . U n d e r t h e f i r s t a s s i g n m e n t o f e r r o r , i n a s s e r t i n g t h e i n s u f f i ci e n c y o f t h e
prosecuti ons evi dence to establi sh her guil t beyond reasonabl e doubt, accused -appell ant argues that the
p r o s e c u t i o n w a s o n l y a b l e t o a d d u c e ci r c u m s t a n t i a l e v i d e n c e h a r d l y e n o u g h t o p r o v e h e r g u i l t b e y o n d
r e a s o n a b l e d o u b t . S h e r a t i o c i n a t e s t h a t t h e f o l l ow i n g ci r c u m s t a n c e s :

1. That i mmedi atel y before the burni ng of the house , the accu sed hurri edl y and w ith
head turni ng i n di fferent di recti ons (pali nga -li nga ) w ent out of the sai d house and rode
a p e d i c a b a p p a r e n tl y n o t k n o w i n g w h e r e t o g o f o r s h e f i r s t r e q u e s t e d t o b e b r o u g h t t o
Ni pa St. bu t upon reaching there requested again to be brought to Bal asan St. as show n
by the testi mony of prosecuti on w i tness Rolando Gruta ;

2. That i mmediatel y after the fi re, upon a report tha t there w as a w oman i n Bal asan St.
w ho appears confused and apprehensi ve ( balisa), the Barangay Ch ai rman and hi s
tanods w ent there, found the accused and a pprehended her and brought her to the
barangay hall as show n by the tes ti mony of Barangay Chai rman Remi gi o Bernardo ; and

3 . T h a t w h e n s h e w a s a p p r e h e n d e d a n d i n v e s t i g a t e d b y t h e b a r a n g a y o f f i ci a l s a n d w h e n h e r
bag w as opened, the same contai ned a di sposa ble lighter as likewi se show n by the
testi mony of the Barangay Chai rman. [30]

fall short of provi ng tha t she had any i nvol vement i n setti ng her empl oyers house on fi re, much l ess show guil t
beyond reasonabl e doubt, gi ven that i t i s a fact that housemai ds are the fi rst persons i n the house to w ake up
earl y to perform routi ne chores for thei r empl oyers, [31] one of w hi ch i s prepari ng and cooki ng the morni ng meal
for the members of the househol d; and necessi ty requi res her to go out earl y to l ook for open stores or even
nearby marketpl aces to buy thi ngs that w i l l compl ete the earl y meal for the day. [32] She then concl udes that i t
w as normal for her to have been seen going o ut of her empl oyers house in a hurry at that ti me of the day and
t o l o o k a t a l l d i r e c t i o n s t o i n s u r e t h a t t h e h o u s e i s s e c u r e a n d t h a t t h e r e a r e n o o t h e r p e r s o n s i n t h e v i ci n i t y . [ 3 3 ]

We a r e f a r f r o m p e r s u a d e d .

True, by the na ture of thei r jobs, housemai ds are requi red to sta rt the day earl y; how ever, contra ry to
sai d asserti on, the actuati ons and the demeanor of accused -appell ant on that fa teful earl y morni ng as
o b s e r v e d f i r s t h a n d b y R o l a n d o G r u t a , o n e o f t h e w i t n e s s e s o f t h e p r o s e c u t i o n , b e l i e h e r cl a i m o f n o r m a l c y , t o
wi t:

Q : Y o u s a i d y o u s a w E d n a c o m i n g o u t f r o m t h e h o u s e o f t h e S e p a r a Fa m i l y . Wh a t h a p p e n e d
w hen you saw Edna coming ou t from the house of the Separa Famil y?

A: Wa l a p a p o n g a n o y a n n a i s a k a y k o n a s i y a s a s i d e c a r .

Q : An d w h a t d i d y o u o b s e r v e f r o m E d n a w h e n y o u s a w h e r c o m i n g o u t f r o m t h e h o u s e o f t h e
Separa family?

A: N a g m a m a d a l i p o s i y a n g l u m a k a d a t p a l i n g a - l i n g a .

x x x x

Q : Af t e r s h e b o a r d e d y o u r p e d i c a b , w h a t h a p p e n e d , i f a n y ?

A: N a g p a h a t i d p o s i y a s a a k i n .

Q : Wh e r e ?

A: T o N i p a S t r e e t , s i r .

Q: Di d you bri ng her to Nipa Street as she requested?

A: Y e s , s i r .

x x x x

Q : Y o u s a i d t h a t y o u b r o u g h t h e r t o N i p a S t r e e t . Wh a t h a p p e n e d w h e n y o u g o ( s i c ) t h e r e
at Ni pa Street, i f any?
 A: N a g p a h i n t o p o s i y a d o o n n g s a g l i t , m g a t a t l o n g m i n u t o p o .

Q : Wh a t d i d s h e d o w h e n s h e a s k e d ( y o u ) t o s t o p t h e r e f o r t h r e e m i n u t e s ?

A: Af t e r t h r e e m i n u t e s s h e r e q u e s t e d m e t o b r i n g h e r d i r e c t l y t o B a l a s a n S t r e e t , s i r .

x x x x

We q u o t e w i t h a p p r o v a l the pronouncement of the RTC in d i s cr e d i ti n g accused -appellants

aforementi oned rati onale:

[O] bvi ousl y i t i s never normal , common or ordi nary to l eave the house i n such a di sturbed,
n e r v o u s a n d a g i t a t e d m a n n e r , d e m e a n o r a n d co n d i ti o n . T h e ti m i n g o f h e r h u r r i e d d e p a r t u r e
and nervous demeanor i mmedi atel y before the fi re w hen she l eft the house and rode
a pedi cab and her same demeanor, physi cal and mental condi ti on w hen foun d and
apprehended at the same pl ace w here she alighted from the pedi cab and the di scovery of the
l i g h t e r i n h e r b a g t h e r e a f t e r w h e n i n v e s ti g a t e d i n d i s p u t a b l y s h o w h e r g u i l t a s c h a r g e d . [ 3 4 ]

Al l t h e w i t n e s s e s a r e i n a c c o r d t h a t a c c u s e d - a p p e l l a n t s agi tated appearance was out of the

ordi nary. Remarkabl y, she has never denied thi s observati on.

We g i v e g r e a t w e i g h t t o t h e f i n d i n g s o f t h e R T C a n d s o a c c o r d c r e d e n c e t o t h e t e s t i m o n i e s o f t h e
prosecuti on w i tnesses as i t had the opportuni ty to observe them di rectl y. The credi bili ty gi ven by trial courts to
prosecuti on w i tnesses i s an i mportant aspect of evi dence w hi ch appell ate courts can rel y on because of i ts
unique opportuni ty to observe them, parti cul arl y thei r demeanor, conduct, and atti tude, duri ng the di rect and
cross-exami nati on by counsel s. Here, Remi gi o Bernardo, Rol ando Gru ta and Mercedi ta Mendoza are
di si nterested w i tnesses and there i s not an i ota of evi dence i n the records to i ndi cate tha t they are suborned
wi tnesses. The records of the RTC even show that Remi gio Bernardo, the Barangay Chai rman, kept accused -
appellant from bei ng mauled by the angry crow d outsi de of the barangay hall :

Pros. Rebagay:

Now , w ho w ere present w hen the accused are (sic) telli ng you thi s?

A: I y o n n g a i y o n g m g a t a n o d k o , m a m a m a y a n d o o n n a k a p a l i g i d , s i y e m p r e m a y s u n o g
nagkakagulo, gusto nga siyang kunin ng mga mama ma yan para saktan hindi ko
m a i b i g a y p a p a t a y i n s i y a g a wa n g m a y n a m a t a y e h a n i m n a t a o a n d n a m a t a y , k a y a
i y o n g m g a t a o k i n o k o n t r o l s i y a m a d i d i s g r a s y a s i y a d a h i l p i n - p o i n t e d p o s i y a , Yo u r H o n o r ,
i y o n g d a m i n a i y o n l i b o i y o n g n a k a p a l i g i d d o o n s a b a r a n g a y h a l l n a p a k a h i r a p a wa t i n .
Gusting -gusto si yang kun in ng mga taong-ba yan, nagalit dahil ang daming bahay hong
nasunog.[35]

Ac c u s e d - a p p e l l a n t h a s n o t s h o w n a n y c o m p e l l i n g r e a s o n w h y t h e w i t n e s s e s p r e s e n t e d w o u l d o p e n l y ,
p u b l i cl y a n d d e l i b e r a t e l y l i e o r c o n c o c t a s t o r y , t o s e n d a n i n n o c e n t p e r s o n t o j a i l a l l t h e w h i l e k n o w i n g t h a t
t h e r e a l m a l e f a c t o r r e m a i n s a t l a r g e . S u c h p r o p o s i ti o n d e f i e s l o g i c . An d w h e r e t h e d e f e n s e f a i l e d t o s h o w a n y
evil or i mproper moti ve on the part of the prosecuti on w i tnesses, the presumpti on i s that thei r testi moni es are
true and thus enti tl ed to full fai th and credence. [36]
 Wh i l e t h e p r o s e c u t i o n w i t n e s s e s d i d n o t s e e a c c u s e d - a p p e l l a n t a c t u a l l y s t a r t i n g t h e f i r e t h a t b u r n e d
several houses and killed the Separa famil y, her guil t may still be established through ci rcumstan ti al evi dence
p r o v i d e d t h a t : ( 1 ) t h e r e i s m o r e t h a n o n e ci r c u m s t a n c e ; ( 2 ) t h e f a c t s f r o m w h i c h t h e i n f e r e n c e s a r e d e r i v e d
a r e p r o v e n ; a n d , ( 3 ) t h e c o m b i n a ti o n o f a l l t h e ci r c u m s t a n c e s i s s u c h a s t o p r o d u c e c o n v i c t i o n b e y o n d
reasonable doubt.[37]

Ci rcumstan ti al evi dence i s that evi dence w hi ch proves a fact or se ri es of facts from w hi ch the facts i n
i s s u e m a y b e e s t a b l i s h e d b y i n f e r e n c e . [ 3 8 ] I t i s f o u n d e d o n e x p e r i e n c e a n d o b s e r v e d f a c t s a n d c o i n ci d e n c e s
e s t a b l i s h i n g a c o n n e c t i o n b e tw e e n t h e k n ow n a n d p r o v e n f a c t s a n d t h e f a c t s s o u g h t t o b e p r o v e d . [ 3 9 ] I n o r d e r
to bri ng about a convi cti on, the ci rcumstanti al evi dence presented must consti tute an unbroken chai n, w hi ch
leads to one fai r and reasonabl e concl usi on pointi ng to the accused, to the excl usi on of others, as the gui l ty
person.[40]

In thi s case, the i nterl ocki ng testi monies of th e prosecuti on w i tnesses, taken together, exempli fy a case
w h e r e c o n v i c t i o n c a n b e u p h e l d o n t h e b a s i s o f c i r c u m s t a n t i a l e v i d e n ce . F i r s t , p r o s e c u t i o n w i t n e s s R o l a n d o
Gru ta, the dri ver of the pedi cab that accused-a ppell ant rode on, testi fied that he knew for a fact tha t she
w o r k e d a s a h o u s e m a i d o f t h e v i c t i m s , a n d t h a t h e p o s i t i v e l y i d e n ti f i e d h e r a s t h e p e r s o n h u r r i e d l y l e a v i n g t h e
house of the vi cti ms on 2 January 2001 a t 4 :45 a.m., and acti ng i n a nervous manner. That w hile ri di ng on
the pedi cab, accused-appell ant w as unsure of her i ntended desti nati on. Upon reachi ng the place w here he
o r i g i n a l l y p i ck e d u p a c c u s e d - a p p e l l a n t o n l y a f e w m i n u t e s a f t e r d r o p p i n g h e r o f f , R o l a n d o G r u t a s a w
the Separas house bei ng gutted by a blazi ng fi re. Second , Remi gi o Bernardo testi fi ed that he and hi s tanods,
i n cl u d i n g R o l a n d o G r u t a , w e r e t h e o n e s w h o p i c k e d u p a c c u s e d - a p p e l l a n t E d n a a t B a l a s a n S t r e e t ( w h e r e
Rol ando Gruta dropped her off ) af ter recei vi ng a call that there w as a w oman acti ng strangel y at sai d street
and w ho ap peared to have now here to go. Thi rd, SPO4 Danil o Talusan overheard accused -appell ant admi t to
C a r m e l i t a V a l d e z , a r e p o r t e r o f C h a n n e l 2 ( AB S - C B N ) t h a t s a i d a c c u s e d - a p p e l l a n t s t a r t e d t h e f i r e , p l u s t h e f a c t
t h a t h e w a s a b l e s e e t h e t e l e c a s t o f G u s Ab e l g a s s h o w w h e r e a c c u s e d - a p p e l l a n t , w h i l e b e i n g i n t e r v i e w e d ,
c o n f e s s e d t o t h e c r i m e a s w e l l . T h e f o r e g o i n g t e s t i m o n i e s j u x t a p o s e d w i t h t h e t e s t i m o n y o f M e r c e d i t a M e n d o za
vali dati ng the fact tha t accused -appellant confessed to havi ng started the fi re w hi ch killed the Separa famil y
a s w e l l a s b u r n e d s e v e n h o u s e s i n cl u d i n g t h a t o f t h e v i c t i m s , c o n v i n c i n g l y f o r m a n u n b r o k e n c h a i n , w h i c h l e a d s
t o t h e u n a s s a i l a b l e c o n c l u s i o n p i n p o i n ti n g a c c u s e d - a p p e l l a n t a s t h e p e r s o n b e h i n d t h e c r i m e o f s i m p l e a r s o n .

In her second assi gned error, a ccused -appell ant questi ons the admi ssi bili ty of her uncounselled
e x t r a j u d i c i a l c o n f e s s i o n g i v e n t o p r o s e c u t i o n w i tn e s s e s , n a m e l y R e m i g i o B e r n a r d o , M e r c e d i t a M e n d o z a , a n d t o
t h e m e d i a . Ac c u s e d - a p p e l l a n t E d n a c o n t e n d s t h a t b e i n g u n c o u n s e l l e d e x t r a j u d i ci a l c o n f e s s i o n , h e r a d m i s s i o n s
to havi ng commi tted th e cri me charged should have been excluded i n evi dence agai nst her for bei ng
v i o l a ti v e o f Ar t i c l e I I I , S e c t i o n 1 2 ( 1 ) o f t h e C o n s t i t u t i o n .

Parti cul arl y, she takes excepti on to the testi mony of p rosecuti on w i tnesses Remi gio Bernardo and
Mercedi ta Mendoza for bei ng hearsay and in the nature of an uncounselled admi ssi on.

Wi t h t h e a b o v e v i t a l p i e c e s o f e v i d e n c e e x c l u d e d , a c c u s e d - a p p e l l a n t i s o f t h e p o s i t i o n t h a t t h e
remai ni ng proof of her alleged g uil t, consi sti ng i n the mai n of ci rcumstan ti al evi dence, i s i nadequate to
establi sh her guil t beyond reasonabl e doubt.

We p a r t l y d i s a g r e e .

Ar t i c l e I I I , S e c t i o n 1 2 o f t h e C o n s t i t u t i o n i n p a r t p r o v i d e s :

( 1 ) An y p e r s o n u n d e r i n v e s t i g a t i o n f o r t h e c o m m i s s i o n o f a n o f f e n s e s h a l l h a v e t h e r i g h t
to be i nformed of hi s ri ght to remai n silent and to have competent and independent counsel
preferabl y of hi s ow n choi ce. I f the person cannot afford the servi ces of counsel , he must be
p r o v i d e d w i t h o n e . T h e s e r i g h t s c a n n o t b e w a i v e d e x c e p t i n w r i ti n g a n d i n t h e p r e s e n c e o f
counsel.

x x x x
 ( 3 ) An y c o n f e s s i o n o r a d m i s s i o n o b t a i n e d i n v i o l a t i o n o f t h i s S e c t i o n o r S e c t i o n 1 7 h e r e o f
shall be inadmi ssi ble in evi dence.

We h a v e h e l d t h a t t h e a b o v e q u o t e d p r o v i s i o n a p p l i e s t o t h e s t a g e o f c u s t o d i a l i n v e s t i g a t i o n w h e n t h e
i n v e s ti g a t i o n i s n o l o n g e r a g e n e r a l i n q u i r y i n t o a n u n s o l v e d c r i m e b u t s t a r t s t o f o c u s o n a p a r t i c u l a r p e r s o n a s
a suspect.[41] Sai d consti tuti onal guarantee has also been extended to si tuati ons i n w hi ch an i ndi vidual has not
been formall y arrested but has merel y been invi ted for questi oni ng. [42]

T o b e a d m i s s i b l e i n e v i d e n c e a g a i n s t a n a c c u s e d , t h e e x t r a j u d i ci a l c o n f e s s i o n s m a d e m u s t s a t i s f y t h e
f o l l ow i n g r e q u i r e m e n t s :

(1) i t must be voluntary;

(2) i t must be made w i th the assi stance of competent and i ndependent counsel ;

(3) it must be express; and

( 4 ) i t m u s t b e i n w r i ti n g . [ 4 3 ]

A r g u a b l y , t h e b a r a n g a y t a n o d s , i n cl u d i n g t h e B a r a n g a y C h a i r m a n , i n t h i s p a r t i c u l a r i n s t a n c e , m a y b e
d e e m e d a s l a w e n f o r c e m e n t o f f i c e r f o r p u r p o s e s o f a p p l y i n g Ar t i c l e I I I , S e c t i o n 1 2 ( 1 ) a n d ( 3 ) , o f t h e
C o n s t i t u t i o n . Wh e n a c c u s e d - a p p e l l a n t w a s b r o u g h t t o t h e b a r a n g a y h a l l i n t h e m o r n i n g o f 2 J a n u a r y 2 0 0 1 , s h e
w as al ready a suspect, actuall y the onl y one, in the fi re that destroye d several houses as w ell as killed the
w h o l e f a m i l y o f R o b e r t o S e p a r a , S r . S h e w a s , t h e r e f o r e , a l r e a d y u n d e r cu s t o d i a l i n v e s t i g a t i o n a n d t h e r i g h t s
g u a r a n t e e d b y Ar t i c l e I I I , S e c t i o n 1 2 ( 1 ) , o f t h e C o n s t i t u t i o n s h o u l d h a v e a l r e a d y b e e n o b s e r v e d o r a p p l i e d t o
h e r . Ac c u s e d - a p p e l l a n t s c o n f e s s i o n t o B a r a n g a y C h a i r m a n R e m i g i o B e r n a r d o w a s m a d e i n r e s p o n s e t o t h e
i nterrogati on made by the l atte r admi ttedl y conducted w i thout fi rst i nformi ng accused -appell ant of her ri ghts
under the Consti tuti on or done i n the presence of counsel . For thi s reason, the confessi on of accused -
appellant, gi ven to Barangay Chai rman Remi gio Bernardo , as w ell as the li gh ter found by the l atter i n her bag
are i nadmi ssi ble i n evi dence agai nst her as such w ere obtai ned i n vi ol ati on of her consti tu ti onal ri ghts .

Be that as i t may, the inadmi ssibili ty of accused -appellants confessi on to Barangay Chai rman Remi gio
Bernardo and the li ghter as evi dence do not automa ti call y lead to her acqui ttal . I t shoul d w ell be recall ed
t h a t t h e c o n s t i t u t i o n a l s a f e g u a r d s d u r i n g c u s t o d i a l i n v e s ti g a t i o n s d o n o t a p p l y t o t h o s e n o t e l i ci t e d t h r o u g h
questi oni ng by the police or thei r agents but gi ve n in an ordi nary manner w hereby the accused verbally
admi ts to havi ng commi tted the offense as w hat happened i n the case at bar w hen accused -appell ant
admi tted to M ercedi ta Mendoza, one of the ne i ghbors of Roberto Separa, Sr., to ha vi ng started the fi re i n
the Separas house. The testi mony of Mercedi ta Mendoza recounti ng sai d admissi on i s, unfortunatel y for
a c c u s e d - a p p e l l a n t , a d m i s s i b l e i n e v i d e n c e a g a i n s t h e r a n d i s n o t c o v e r e d b y t h e a f o r e s a i d c o n s t i t u t i o n al
g u a r a n t e e . Ar t i c l e I I I o f t h e C o n s t i t u t i o n , o r t h e B i l l o f R i g h t s , s o l e l y g o v e r n s t h e r e l a t i o n s h i p b e tw e e n t h e
i ndi vidual on one hand and the Sta te (and i ts agents ) on the other; i t does not concern i tsel f with the rel ati on
b e tw e e n a p r i v a t e i n d i v i d u a l a n d a n o t h e r p r i v a t e i n d i v i d u a l a s b o t h a c c u s e d - a p p e l l a n t a n d p r o s e c u t i o n
wi tness Mercedi taM endoza undoubtedl y are. [44] H ere, there i s no evi dence on record to show that sai d w i tness
w a s a c t i n g u n d e r p o l i c e a u t h o r i t y , s o a p p r o p r i a t e l y , a c c u s e d - a p p e l l a n t s u n c o u n s e l l e d e x t r a j u d i ci a l c o n f e s s i o n
to sai d w i tness w as properl y admi tted by the RTC.

Ac c u s e d - a p p e l l a n t likewise assail s the admi ssi on of the testi mony of

SPO4 Danil o Tal usan. Contendi ng th at [w ]hen SPO4 Danilo Talusan testi fied i n court, hi s story i s more of
e v e n t s , w h i c h a r e n o t w i t h i n h i s p e r s o n a l k n ow l e d g e b u t b a s e d f r o m a c c o u n t s o f w i t n e s s e s w h o d e r i v e d
i nformati on allegedl y from the accused or some other persons x x x . I n other w ords, she objects to the
t e s t i m o n y f o r b e i n g m e r e l y h e a r s a y . Wi t h t h i s i m p u t a t i o n o f i n a d m i s s i b i l i t y , w e a g r e e w i t h w h a t t h e C o u r t o f
Ap p e a l s h a d t o s a y :

Al t h o u g h t h i s t e s t i m o n y o f S F O 4 D a n i l o T a l u s a n i s h e a r s a y b e c a u s e h e w a s n o t p r e s e n t
w h e n G u s Ab e l g a s i n t e r v i e w e d a c c u s e d - a p p e l l a n t E D N A, i t m a y n e v e r t h e l e s s b e a d m i t t e d i n
evi dence as an i ndependentl y rel evant sta tement to establi sh not the tru th but the tenor of the
sta tement o r the fact th at the s ta tement w as made [People v. M allari , G.R. No. 103 547 , J ul y 20,
 1 9 9 9 , 3 1 0 S C R A 6 2 1 c i t i n g P e o p l e v . C u s i , J r . , G . R . N o . L - 2 0 9 8 6 , Au g u s t 1 4 , 1 9 6 5 , 1 4 S C R A 9 4 4 . ] .
In People vs. Velasquez, G.R. Nos. 132635 & 143872 -75, February 21, 2001, 352 SCRA 455, the
Supreme Court rul ed that:

U n d e r t h e d o c t r i n e o f i n d e p e n d e n tl y r e l e v a n t s t a t e m e n t s , r e g a r d l e s s o f
thei r tru th or fal si ty, the fact tha t such sta tements have been made i s relevant.
The hearsay rule does not appl y, and the s ta tements a re admi ssi ble as evidence.
Evi dence as to the making of such statement i s not sec ondary but pri mary, for
the statement i tsel f may consti tute a fact i n i ssue or be ci rcumstanti ally rel evant
as to the exi stence of such a fact. [45]

As r e g a r d s t h e c o n f e s s i o n g i v e n b y a c c u s e d - a p p e l l a n t t o t h e m e d i a , w e n e e d n o t d i s c u s s i t f u r t h e r f o r
the reporters w ere never presented to tes ti fy i n court.

As a f i n a l a t t e m p t a t e x c u l p a ti o n , a c c u s e d - a p p e l l a n t a s s e r t s t h a t s i n c e t h e i d e n ti t i e s o f t h e b u r n e d
bodi es w ere never conclusi vely establi shed, she cannot be responsi ble for thei r deaths.

Such asserti on i s bereft of meri t.

I n t h e c r i m e o f a r s o n , t h e i d e n t i ti e s o f t h e v i c t i m s a r e i m m a t e r i a l i n t h a t i n t e n t t o k i l l t h e m p a r t i c u l a r l y i s
n o t o n e o f t h e e l e m e n t s o f t h e c r i m e . As w e h a v e c l a r i f i e d e a r l i e r , t h e k i l l i n g o f a p e r s o n i s a b s o r b e d i n t h e
charge of arson, si mpl e or destructi ve. The prosecuti on need onl y prove, tha t the burni ng w as i ntenti onal and
t h a t w h a t w a s i n t e n t i o n a l l y b u r n e d i s a n i n h a b i t e d h o u s e o r d w e l l i n g . Ag a i n , i n t h e c a s e o f P e o p l e
v. Soriano, [46] w e explai ned that:

Al t h o u g h i n t e n t m a y b e a n i n g r e d i e n t o f t h e c r i m e o f A r s o n , i t m a y b e i n f e r r e d f r o m t h e
acts of the accused. There i s a presumpti on that one i ntends the natural consequences of hi s
act; and w hen i t i s shown tha t one has deli beratel y set fi re to a buil ding, the prosecu ti on i s not
bound to produce further evi dence of hi s w rongful i ntent. [ 47]

T h e u l ti m a t e q u e r y n o w i s w h i c h k i n d o f a r s o n i s a cc u s e d - a p p e l l a n t g u i l t y o f ?

As p r e v i o u s l y d i s c u s s e d , t h e r e a r e tw o ( 2 ) c a t e g o r i e s o f t h e c r i m e o f a r s o n : 1 ) d e s t r u c t i v e a r s o n ,
u n d e r Ar t . 3 2 0 o f t h e R e v i s e d P e n a l C o d e , a s a m e n d e d b y R e p u b l i c Ac t N o . 7 6 5 9 ; a n d 2 ) s i m p l e a r s o n ,
u n d e r P r e s i d e n t i a l D e c r e e N o . 1 6 1 3 . S a i d cl a s s i f i c a t i o n i s b a s e d o n t h e k i n d , c h a r a c t e r a n d l o c a t i o n o f t h e
property burned, regardless of the val ue of the damage caused, [48] to wi t:

Ar t i c l e 3 2 0 o f Th e R e v i s e d P e n a l C o d e , a s a m e n d e d b y R A 7 6 5 9 , c o n t e m p l a t e s t h e
m a l i ci o u s b u r n i n g o f s t r u c t u r e s , b o t h p u b l i c a n d p r i v a t e , h o t e l s , b u i l d i n g s , e d i f i c e s , t r a i n s ,
vessels, aircraft, factories and other military, government or commercial establishments by any
p e r s o n o r g r o u p o f p e r s o n s . [ [ 4 9 ] ] T h e c l a s s i f i c a ti o n o f t h i s t y p e o f c r i m e i s k n o w n a s D e s t r u c t i v e
Arson, w hi ch i s puni shable by reclusion perpetua to death. The reason for the l aw i s self -evi dent:
to effecti vel y di scourage and deter the commissi on of thi s dastardl y cri me, to prevent the
destru cti on of properti es and prote ct the l i ves of i nnocent peopl e. Exposure to a b rew i ng
confl agrati on leaves onl y de structi on and despai r in i ts w ake; hence, the Sta te mandates
g r e a t e r r e t r i b u ti o n t o a u t h o r s o f t h i s h e i n o u s c r i m e . T h e e x c e p t i o n a l l y s e v e r e p u n i s h m e n t
i mposed for thi s cri me takes i nto consi derati on the extreme danger to human li ves exposed by
t h e m a l i ci o u s b u r n i n g o f t h e s e s t r u c t u r e s ; t h e d a n g e r t o p r o p e r t y r e s u l ti n g f r o m t h e
confl agrati on; the fact that i t i s normally di ffi cult to adopt precau ti ons agai nst i ts commi ssi on,
and the di ffi cul ty i n pinpoi nti ng the perpetrators; and , the grea ter impact on the s oci al ,
economi c, securi ty and poli ti cal fabri c of the nati on. [Emphasi s supplied.]

I f a s a c o n s e q u e n c e o f t h e c o m m i s s i o n o f a n y o f t h e a c t s p e n a l i z e d u n d e r Ar t . 3 2 0 ,
death shoul d resul t, the mandatory penal ty of death shall be i mposed.

O n t h e o t h e r h a n d , P D 1 6 1 3 w h i c h r e p e a l e d Ar t s . 3 2 1 t o 3 2 6 - B o f T h e R e v i s e d P e n a l C o d e
r e m a i n s t h e g o v e r n i n g l a w f o r S i m p l e A r s o n . T h i s d e c r e e c o n t e m p l a t e s t h e m a l i ci o u s b u r n i n g o f
p u b l i c a n d p r i v a t e s t r u c t u r e s , r e g a r d l e s s o f s i z e , n o t i n c l u d e d i n Ar t . 3 2 0 , a s a m e n d e d b y R A
7 6 5 9 , a n d c l a s s i f i e d a s o t h e r c a s e s o f a r s o n . T h e s e i n cl u d e h o u s e s , d w e l l i n g s , g o v e r n m e n t
buildings, farms, mills, plantations, railways, bus stations, airports, wharves and other industrial
e s t a b l i s h m e n t s . [ [ 5 0 ] ] Al t h o u g h t h e p u r p o s e o f t h e l a w o n S i m p l e Ar s o n i s t o p r e v e n t t h e h i g h
i n ci d e n c e o f f i r e s a n d o t h e r c r i m e s i n v o l v i n g d e s t r u c t i o n , p r o t e c t t h e n a t i o n a l e c o n o m y a n d
 preserve the soci al , economi c and pol i ti cal stabi l i ty of the nati on, PD 1613 tempers the penal ty
t o b e m e t e d t o o f f e n d e r s . T h i s s e p a r a t e c l a s s i f i ca t i o n o f S i m p l e Ar s o n r e c o g n i z e s t h e n e e d t o
lessen the severi ty of puni shment commensurate to the act or acts commi tted, dependi ng o n
the parti cul ar facts and ci rcumstances of each case. [Emphasi s supplied.]

To emphasi ze:

T h e n a t u r e o f D e s t r u c t i v e Ar s o n i s d i s t i n g u i s h e d f r o m S i m p l e Ar s o n b y t h e d e g r e e o f
perversi ty or vi ciousness of the cri mi nal offender. The acts commi tted under A rt. 320 of the
Revi sed Penal Code (as amended) consti tuti ng Destructi ve Ar s o n a r e c h a r a c t e r i z e d
as hei nous crimes for being gri evous, odi ous and hateful offenses and w hich, by reason of thei r
i n h e r e n t o r m a n i f e s t w i c k e d n e s s , v i ci o u s n e s s , a t r o c i t y a n d p e r v e r s i t y a r e r e p u g n a n t a n d
o u t r a g e o u s t o t h e c o m m o n s t a n d a r d s a n d n o r m s o f d e c e n c y a n d m o r a l i t y i n a j u s t , c i v i l i ze d a n d
ordered soci ety.[51] On the other hand, acts commi tted under PD 1613 consti tuti ng Si mple
Ar s o n a r e c r i m e s w i t h a l e s s e r d e g r e e o f p e r v e r s i t y a n d v i ci o u s n e s s t h a t t h e l a w p u n i s h e s w i t h a
l e s s e r p e n a l t y . I n o t h e r w o r d s , S i m p l e Ar s o n c o n t e m p l a t e s c r i m e s w i t h l e s s s i g n i f i c a n t s o c i a l ,
e c o n o m i c , p o l i ti c a l a n d n a t i o n a l s e c u r i t y i m p l i ca t i o n s t h a n D e s t r u c t i v e Ar s o n . H o w e v e r , a c t s
f a l l i n g u n d e r S i m p l e Ar s o n m a y n e v e r t h e l e s s b e co n v e r t e d i n t o D e s t r u c t i v e Ar s o n d e p e n d i n g o n
t h e q u a l i f y i n g ci r c u m s t a n c e s p r e s e n t . [ E m p h a s i s s u p p l i e d .] [ 5 2 ]

Presci ndi ng from the above cl ari fi cati on vis--vis the descri pti on of the cri me as stated i n the
accusatory porti on of the I nformati on, i t i s q uite evi dent that accuse d -appell ant w as charged wi th the
cri me of Simple Arson fo r havi ng deliberately set fire upon the two-sto rey residential ho use o f ROBER TO
S E P A R A a n d f a m i l y x x x k n o wi n g t h e s a m e t o b e a n i n h a b i t e d h o u s e a n d s i t u a t e d i n a t h i c k l y p o p u l a t e d
p l a c e a n d a s a c o n s e q u e n c e t h e r e o f a c o n f l a g r a t i o n e n s u e d a n d t h e s a i d b u i l d i n g , t o g e t h e r wi t h s o m e
s e v e n (7 ) a d j o i n i n g r e s i d e n t i a l h o u s e s , we r e r a z e d b y f i r e . [ E m p h a s i s s u p p l i e d . ]

The facts of the case at bar i s somew hat si milar to the facts of th e case of People v. Soriano.[53] The
accused i n the l atter case caused the burni ng of a parti cul ar house. Unfortunatel y, the bl aze spread and
g u t t e d d o w n f i v e ( 5 ) n e i g h b o r i n g h o u s e s . T h e R T C t h e r e i n f o u n d t h e a cc u s e d g u i l t y o f d e s t r u c t i v e a r s o n
u n d e r p a r a g r a p h 1 [ 5 4 ] o f Ar t . 3 2 0 o f t h e R e v i s e d P e n a l C o d e , a s a m e n d e d b y R e p u b l i c Ac t N o . 7 6 5 9 . T h i s
Court, through M r. Justi ce Bell osillo, how ever, decl ared that:

x x x [T] he applicable provi si on of law should be Sec. 3 , par. 2 , of PD 1613 , w hi ch i mposes a

penal ty of recl usion temporal to recl usi on perpetua for other cases of arson as the properti es
b u r n e d b y a c c u s e d - a p p e l l a n t a r e s p e c i f i c a l l y d e s c r i b e d a s h o u s e s , c o n t e m p l a ti n g i n h a b i t e d
houses or dw ellings under the aforesai d law . The descripti ons as alleged in the second
Am e n d e d I n f o r m a t i o n p a r t i c u l a r l y r e f e r t o t h e s t r u c t u r e s a s h o u s e s r a t h e r t h a n a s b u i l d i n g s o r
e d i f i c e s . T h e a p p l i c a b l e l a w s h o u l d t h e r e f o r e b e S e c . 3 , P a r . 2 , o f P D 1 6 1 3 , a n d n o t Ar t . 3 2 0 ,
p a r . 1 o f t h e P e n a l C o d e . I n c a s e o f a m b i g u i t y i n c o n s t r u c t i o n o f p e n a l l aw s , i t i s w e l l - s e t t l e d
that such l aw s shall be construed stri ctl y agai nst the government, and liberall y i n favor of the
accused.

The elements of arson under Sec. 3, par. 2, of PD 1613 are: (a) there i s intenti onal
b u r n i n g ; a n d ( b ) w h a t i s i n t e n t i o n a l l y b u r n e d i s a n i n h a b i t e d h o u s e o r d w e l l i n g . I n ci d e n t a l l y ,
these elements concur i n the case at bar. [55]

As s t a t e d i n t h e b o d y o f t h e I n f o r m a t i o n , a c c u s e d - a p p e l l a n t w a s c h a r g e d w i t h h a v i n g i n t e n t i o n a l l y
b u r n e d t h e t w o - s t o r e y r e s i d e n t i a l h o u s e o f R o b e r t S e p a r a . S a i d c o n f l a g r a t i o n l i k ew i s e s p r e a d a n d d e s t r o y e d
seven (7) adjoi ni ng houses. Consequentl y, i f proved, as i t w as proved, at the tri al , she may be convi cted, and
s e n t e n c e d a c c o r d i n g l y , o f t h e c r i m e o f s i m p l e a r s o n . S u c h i s t h e c a s e n o tw i t h s t a n d i n g t h e e r r o r i n t h e
d e s i g n a ti o n o f t h e o f f e n s e i n t h e i n f o r m a t i o n , t h e i n f o r m a t i o n r e m a i n s e f f e c t i v e i n s o f a r a s i t s t a t e s t h e f a c t s
c o n s t i t u t i n g t h e c r i m e a l l e g e d t h e r e i n . [ 5 6 ] Wh a t i s c o n t r o l l i n g i s n o t t h e t i t l e o f t h e c o m p l a i n t , n o r t h e
d e s i g n a ti o n o f t h e o f f e n s e c h a r g e d o r t h e p a r t i c u l a r l a w o r p a r t t h e r e o f a l l e g e d l y v i o l a t e , x x x , b u t t h e
d e s c r i p t i o n o f t h e c r i m e c h a r g e d a n d t h e p a r t i c u l a r f a c t s t h e r e i n r e ci t e d . [ 5 7 ]

There i s, thus, a need to modi fy the penal ty i mposed by the RTC as Sec. 5 of PD No. 1613 ca tegori cally
provi des that the penal ty to be i mposed for si mple arson i s:

S E C . 5 . Wh e r e D e a t h R e s u l t s f r o m A r s o n . - I f b y r e a s o n o f o r o n t h e o c c a s i o n o f a r s o n
d e a t h r e s u l t s , t h e p e n a l t y o f r e c l u s i o n p e r p e t u a t o d e a t h s h a l l b e i m p o s e d . [ E m p h a s i s s u p p l i e d .]

Ac c o r d i n g l y , t h e r e b e i n g n o a g g r a v a t i n g c i r c u m s t a n c e a l l e g e d i n t h e I n f o r m a t i o n , t h e i m p o s a b l e
penal ty on accused -appell ant i s reclusion perpetua.

Apropos the ci vil liabiliti es of accused -appellant, curren t juri sprudence [58] di cta te that the ci vil
i ndemni ty due from accused -appell ant i s P50,000.00 for the death of each of the vi cti ms. [59] H ow ever, the
m o n e t a r y a w a r d s f o r m o r a l a n d e x e m p l a r y d a m a g e s g i v e n b y t h e C o u r t o f Ap p e a l s , b o t h i n t h e a m o u n t
of P50,000.00, due the hei rs of the vi cti ms, have to be deleted for l ack of materi al basi s. Si mi l arl y, the Court of
Ap p e a l s a w a r d o f e x e m p l a r y d a m a g e s t o R o d o l f o M o v i l l a i n t h e a m o u n t o f P 5 0 , 0 0 0 . 0 0 f o r t h e d e s t r u c t i o n o f h i s
house, al so has to be deleted, but i n thi s i nstance for bei ng i mproper. M oral damages cannot be aw ard by this
Court i n the absence of proof of mental or physi cal sufferi ng on the part of the hei rs of the
v i c t i m s . [ 6 0 ] C o n c e r n i n g t h e a w a r d o f e x e m p l a r y d a m a g e s , t h e r e a s o n f o r t h e d e l e ti o n b e i n g t h a t n o
a g g r a v a t i n g ci r c u m s t a n c e h a d b e e n a l l e g e d a n d p r o v e d b y t h e p r o s e c u t i o n i n t h e c a s e a t b a r . [ 6 1 ]

To summari ze, accused -appellants al ternati ve pl ea that she be acqui tted of the cri me must be
r e j e c t e d . Wi t h t h e e v i d e n c e o n r e c o r d , w e f i n d n o c o g e n t r e a s o n t o d i s t u r b t h e f i n d i n g s o f t h e R T C a n d t h e
C o u r t o f Ap p e a l s . I t i s i n d u b i t a b l e t h a t a c c u s e d - a p p e l l a n t i s t h e a u t h o r o f t h e c r i m e o f s i m p l e a r s o n . Al l t h e
ci rcumstan ti al evi dence presented before the RTC, vi ew ed in i ts enti rety, i s as convi nci ng as di rect evi dence
a n d , a s s u c h , n e g a t e s a c c u s e d - a p p e l l a n t s i n n o ce n c e , a n d w h e n c o n s i d e r e d c o n c u r r e n t l y w i t h h e r a d m i s s i o n
g i v e n t o M e r c e d i t a M e n d o z a , t h e f o r m e r s g u i l t b e y o n d r e a s o n a b l e d o u b t i s tw i c e a s e v i d e n t . H e n c e , h e r
convi cti on i s effecti vel y justi fi ed. M ore so, as i t i s propi ti ous to note that i n stark contrast to the factual
ci rcumstances presented by the prosecuti on, accused -appell ant nei ther mustered a deni al nor an alibi except
for the proposi ti on that her guil t had not been establi shed beyond reasonabl e doubt.

I N V I E W WH E R E O F , t h e D e c i s i o n o f t h e C o u r t o f A p p e a l s d a t e d 2 S e p t e m b e r 2 0 0 5 , i n C A G . R . C R H C N o .
0 1 1 3 9 , i s h e r e b y AF F I R M E D i n s o f a r a s t h e c o n v i c t i o n o f a c c u s e d - a p p e l l a n t E D N A M AL N G A N Y M AY O i s
c o n c e r n e d . T h e s e n t e n c e t o b e i m p o s e d a n d t h e a m o u n t o f d a m a g e s t o b e a w a r d e d , h o w e v e r , a r e M O D I FI E D .
I n a c c o r d a n c e w i t h S e c . 5 o f P r e s i d e n ti a l D e c r e e N o . 1 6 1 3 , a c c u s e d - a p p e l l a n t i s h e r e b y s e n t e n c e d
t o R E C L U S I O N P E R P E TU A . Ac c u s e d - a p p e l l a n t i s h e r e b y o r d e r e d t o p a y t h e h e i r s o f e a c h o f t h e
vi cti ms P50,000.00 as ci vil i ndemni ty.

SO ORDERED.

[G.R. No. 153559. June 8, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. ANTONIO COMADRE, GEORGE COMADRE and DANILO LOZANO, appellants.

DECISION

PER CURIAM:

Appellants Antonio Comadre, George Comadre and Danilo Lozano were charged with Murder with Multiple Frustrated Murder in an
information which reads:

That on or about the 6th of August 1995, at Brgy. San Pedro, Lupao, Nueva Ecija, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring, confederating and mutually helping one another, with intent to kill and by means of
treachery and evident premeditation, availing of nighttime to afford impunity, and with the use of an explosive, did there and then willfully,
unlawfully and feloniously lob a hand grenade that landed and eventually exploded at the roof of the house of Jaime Agbanlog trajecting
deadly shrapnels that hit and killed one ROBERT AGBANLOG, per the death certificate, and causing Jerry Bullanday, Jimmy Wabe, Lorenzo
Eugenio, Rey Camat, Emelita Agbanlog and Elena Agbanlog to suffer shrapnel wounds on their bodies, per the medical certificates; thus,
to the latter victims, the accused commenced all the acts of execution that would have produced the crime of Multiple Murder as
consequences thereof but nevertheless did not produce them by reason of the timely and able medical and surgical interventions of
physicians, to the damage and prejudice of the deceaseds heirs and the other victims.

CONTRARY TO LAW.[1]

On arraignment, appellants pleaded not guilty.[2] Trial on the merits then ensued.

As culled from the records, at around 7:00 in the evening of August 6, 1995, Robert Agbanlog, Jimmy Wabe, Gerry Bullanday, [3] Rey
Camat and Lorenzo Eugenio were having a drinking spree on the terrace of the house of Roberts father, Barangay Councilman Jaime
Agbanlog, situated in Barangay San Pedro, Lupao, Nueva Ecija. Jaime Agbanlog was seated on the banister of the terrace listening to the
conversation of the companions of his son.[4]

As the drinking session went on, Robert and the others noticed appellants Antonio Comadre, George Comadre and Danilo Lozano
walking. The three stopped in front of the house. While his companions looked on, Antonio suddenly lobbed an object which fell on the roof
of the terrace. Appellants immediately fled by scaling the fence of a nearby school.[5]
 The object, which turned out to be a hand grenade, exploded ripping a hole in the roof of the house. Robert Agbanlog, Jimmy
Wabe, Gerry Bullanday, Rey Camat and Lorenzo Eugenio were hit by shrapnel and slumped unconscious on the floor.[6] They were all
rushed to the San Jose General Hospital in Lupao, Nueva Ecija for medical treatment. However, Robert Agbanlog died before reaching the
hospital.[7]

Dr. Tirso de los Santos, the medico-legal officer who conducted the autopsy on the cadaver of Robert Agbanlog, certified that the
wounds sustained by the victim were consistent with the injuries inflicted by a grenade explosion and that the direct cause of death was
hypovolemic shock due to hand grenade explosion.[8] The surviving victims, Jimmy Wabe, Rey Camat, Jaime Agbanlog and Gerry
Bullanday sustained shrapnel injuries.[9]

SPO3 John Barraceros of the Lupao Municipal Police Station, who investigated the scene of the crime, recovered metallic fragments
at the terrace of the Agbanlog house. These fragments were forwarded to the Explosive Ordinance Disposal Division in Camp Crame,
Quezon City, where SPO2 Jesus Q. Mamaril, a specialist in said division, identified them as shrapnel of an MK2 hand grenade. [10]

Denying the charges against him, appellant Antonio Comadre claimed that on the night of August 6, 1995, he was with his wife and
children watching television in the house of his father, Patricio, and his brother, Rogelio. He denied any participation in the incident and
claimed that he was surprised when three policemen from the Lupao Municipal Police Station went to his house the following morning of
August 7, 1995 and asked him to go with them to the police station, where he has been detained since.[11]

Appellant George Comadre, for his part, testified that he is the brother of Antonio Comadre and the brother-in-law of Danilo
Lozano. He also denied any involvement in the grenade-throwing incident, claiming that he was at home when it happened. He stated
that he is a friend of Rey Camat and Jimmy Wabe, and that he had no animosity towards them whatsoever. Appellant also claimed to be
in good terms with the Agbanlogs so he has no reason to cause them any grief.[12]

Appellant Danilo Lozano similarly denied any complicity in the crime. He declared that he was at home with his ten year-old son on
the night of August 6, 1995. He added that he did not see Antonio and George Comadre that night and has not seen them for quite
sometime, either before or after the incident. Like the two other appellants, Lozano denied having any misunderstanding with Jaime
Agbanlog, Robert Agbanlog and Jimmy Wabe.[13]

Antonios father, Patricio, and his wife, Lolita, corroborated his claim that he was at home watching television with them during the
night in question.[14] Josie Comadre, Georges wife, testified that her husband could not have been among those who threw a hand
grenade at the house of the Agbanlogs because on the evening of August 6, 1995, they were resting inside their house after working all
day in the farm.[15]

After trial, the court a quo gave credence to the prosecutions evidence and convicted appellants of the complex crime of Murder
with Multiple Attempted Murder,[16] the dispositive portion of which states:

WHEREFORE, in view of the foregoing, judgment is hereby rendered:

1. Finding accused Antonio Comadre, George Comadre and Danilo Lozano GUILTY beyond reasonable doubt of the complex crime
of Murder with Multiple Attempted Murder and sentencing them to suffer the imposable penalty of death;

2. Ordering Antonio Comadre, George Comadre and Danilo Lozano to pay jointly and severally the heirs of Robert Agbanlog
P50,000.00 as indemnification for his death, P35,000.00 as compensatory damages and P20,000.00 as moral damages;

3. Ordering accused Antonio Comadre, George Comadre and Danilo Lozano to pay jointly and severally Jimmy Wabe, Rey Camat,
Gerry Bullanday and Jaime Agbanlog P30,000.00 as indemnity for their attempted murder.

Costs against the accused.

SO ORDERED.

Hence, this automatic review pursuant to Article 47 of the Revised Penal Code, as amended. Appellants contend that the trial court
erred: (1) when it did not correctly and judiciously interpret and appreciate the evidence and thus, the miscarriage of justice was obviously
omnipresent; (2) when it imposed on the accused-appellants the supreme penalty of death despite the evident lack of the quantum of
evidence to convict them of the crime charged beyond reasonable doubt; and (3) when it did not apply the law and jurisprudence for the
acquittal of the accused-appellants of the crime charged.[17]

Appellants point to the inconsistencies in the sworn statements of Jimmy Wabe, Rey Camat, Lorenzo Eugenio and Gerry Bullanday in
identifying the perpetrators. Wabe, Camat and Eugenio initially executed a Sinumpaang Salaysay on August 7, 1995 at the hospital
wherein they did not categorically state who the culprit was but merely named Antonio Comadre as a suspect. Gerry Bullanday declared
that he suspected Antonio Comadre as one of the culprits because he saw the latters ten year-old son bring something in the nearby store
before the explosion occurred.

On August 27, 1995, or twenty days later, they went to the police station to give a more detailed account of the incident, this time
identifying Antonio Comadre as the perpetrator together with George Comadre and Danilo Lozano.

A closer scrutiny of the records shows that no contradiction actually exists, as all sworn statements pointed to the same perpetrators,
namely, Antonio Comadre, George Comadre and Danilo Lozano.Moreover, it appears that the first statement was executed a day after
the incident, when Jimmy Wabe, Rey Camat and Lorenzo Eugenio were still in the hospital for the injuries they sustained. Coherence could
not thus be expected in view of their condition. It is therefore not surprising for the witnesses to come up with a more exhaustive account of
the incident after they have regained their equanimity. The lapse of twenty days between the two statements is immaterial because said
period even helped them recall some facts which they may have initially overlooked.
 Witnesses cannot be expected to remember all the details of the harrowing event which unfolded before their eyes. Minor
discrepancies might be found in their testimony, but they do not damage the essential integrity of the evidence in its material whole, nor
should they reflect adversely on the witness credibility as they erase suspicion that the same was perjured. [18] Honest inconsistencies on
minor and trivial matters serve to strengthen rather than destroy the credibility of a witness to a crime, especially so when, as in the instant
case, the crime is shocking to the conscience and numbing to the senses.[19]

Moreover, it was not shown that witnesses Jimmy Wabe, Rey Camat, Lorenzo Eugenio and Gerry Bullanday had any motive to testify
falsely against appellants. Absent evidence showing any reason or motive for prosecution witnesses to perjure, the logical conclusion is that
no such improper motive exists, and their testimony is thus worthy of full faith and credit.

The trial court is likewise correct in disregarding appellants defense of alibi and denial. For the defense of alibi to prosper, the accused
must prove not only that he was at some other place at the time of the commission of the crime but also that it was physically impossible
for him to be at the locus delicti or within its immediate vicinity.[20]

Apart from testifying with respect to the distance of their houses from that of Jaime Agbanlogs residence, appellants were unable to
give any explanation and neither were they able to show that it was physically impossible for them to be at the scene of the crime. Hence,
the positive identification of the appellants by eyewitnesses Jimmy Wabe, Jaime Agbanlog, Rey Camat and Gerry Bullanday prevails over
their defense of alibi and denial.[21]

It was established that prior to the grenade explosion, Rey Camat, Jaime Agbanlog, Jimmy Wabe and Gerry Bullanday were able to
identify the culprits, namely, appellants Antonio Comadre, George Comadre and Danilo Lozano because there was a lamppost in front of
the house and the moon was bright.[22]

Appellants argument that Judge Bayani V. Vargas, the Presiding Judge of the Regional Trial Court of San Jose City, Branch 38 erred in
rendering the decision because he was not the judge who heard and tried the case is not well taken.

It is not unusual for a judge who did not try a case to decide it on the basis of the record for the trial judge might have died, resigned,
retired, transferred, and so forth.[23] As far back as the case of Co Tao v. Court of Appeals[24] we have held: 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 the witnesses during the trial but merely relied on the records of the case does not render the judgment erroneous. This
rule had been followed for quite a long time, and there is no reason to go against the principle now.[25]

However, the trial courts finding of conspiracy will have to be reassessed. The undisputed facts show that when Antonio Comadre
was in the act of throwing the hand grenade, George Comadre and Danilo Lozano merely looked on without uttering a single word of
encouragement or performed any act to assist him. The trial court held that the mere presence of George Comadre and Danilo Lozano
provided encouragement and a sense of security to Antonio Comadre, thus proving the existence of conspiracy.

We disagree.

Similar to the physical act constituting the crime itself, the elements of conspiracy must be proven beyond reasonable doubt. Settled
is the rule that to establish conspiracy, evidence of actual cooperation rather than mere cognizance or approval of an illegal act is
required.[26]

A conspiracy must be established by positive and conclusive evidence. It must be shown to exist as clearly and convincingly as the
commission of the crime itself. Mere presence of a person at the scene of the crime does not make him a conspirator for conspiracy
transcends companionship.[27]

The evidence shows that George Comadre and Danilo Lozano did not have any participation in the commission of the crime and
must therefore be set free. Their mere presence at the scene of the crime as well as their close relationship with Antonio are insufficient to
establish conspiracy considering that they performed no positive act in furtherance of the crime.

Neither was it proven that their act of running away with Antonio was an act of giving moral assistance to his criminal act. The
ratiocination of the trial court that their presence provided encouragement and sense of security to Antonio, is devoid of any factual
basis. Such finding is not supported by the evidence on record and cannot therefore be a valid basis of a finding of conspiracy.

Time and again we have been guided by the principle that it would be better to set free ten men who might be probably guilty of
the crime charged than to convict one innocent man for a crime he did not commit.[28] There being no conspiracy, only Antonio Comadre
must answer for the crime.

Coming now to Antonios liability, we find that the trial court correctly ruled that treachery attended the commission of the crime. For
treachery to be appreciated two conditions must concur: (1) the means, method and form of execution employed gave the person
attacked no opportunity to defend himself or retaliate; and (2) such means, methods and form of execution was deliberately and
consciously adopted by the accused. Its essence lies in the adoption of ways to minimize or neutralize any resistance, which may be put up
by the offended party.

Appellant lobbed a grenade which fell on the roof of the terrace where the unsuspecting victims were having a drinking spree. The
suddenness of the attack coupled with the instantaneous combustion and the tremendous impact of the explosion did not afford the
victims sufficient time to scamper for safety, much less defend themselves; thus insuring the execution of the crime without risk of reprisal or
resistance on their part. Treachery therefore attended the commission of the crime.

It is significant to note that aside from treachery, the information also alleges the use of an explosive [29] as an aggravating
circumstance. Since both attendant circumstances can qualify the killing to murder under Article 248 of the Revised Penal Code, [30] we
should determine which of the two circumstances will qualify the killing in this case.

When the killing is perpetrated with treachery and by means of explosives, the latter shall be considered as a qualifying
circumstance. Not only does jurisprudence[31] support this view but also, since the use of explosives is the principal mode of attack, reason
dictates that this attendant circumstance should qualify the offense instead of treachery which will then be relegated merely as a generic
aggravating circumstance.[32]

Incidentally, with the enactment on June 6, 1997 of Republic Act No. 8294 [33] which also considers the use of explosives as an
aggravating circumstance, there is a need to make the necessary clarification insofar as the legal implications of the said amendatory law
vis--vis the qualifying circumstance of by means of explosion under Article 248 of the Revised Penal Code are concerned. Corollary thereto
is the issue of which law should be applied in the instant case.

R.A. No. 8294 was a reaction to the onerous and anachronistic penalties imposed under the old illegal possession of firearms law, P.D.
1866, which prevailed during the tumultuous years of the Marcos dictatorship. The amendatory law was enacted, not to decriminalize
illegal possession of firearms and explosives, but to lower their penalties in order to rationalize them into more acceptable and realistic
levels.[34]

This legislative intent is conspicuously reflected in the reduction of the corresponding penalties for illegal possession of firearms, or
ammunitions and other related crimes under the amendatory law. Under Section 2 of the said law, the penalties for unlawful possession of
explosives are also lowered. Specifically, when the illegally possessed explosives are used to commit any of the crimes under the Revised
Penal Code, which result in the death of a person, the penalty is no longer death, unlike in P.D. No. 1866, but it shall be considered only as
an aggravating circumstance. Section 3 of P.D. No. 1866 as amended by Section 2 of R.A. 8294 now reads:

Section 2. Section 3 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows:

Section 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives. The penalty of prision mayor in its maximum period
to reclusion temporal and a fine of not less than Fifty thousand pesos (P50,000.00) shall be imposed upon any person who shall unlawfully
manufacture, assemble, deal in, acquire, dispose or possess hand grenade(s), rifle grenade(s), and other explosives, including but not
limited to pillbox, molotov cocktail bombs, fire bombs, or other incendiary devices capable of producing destructive effect on contiguous
objects or causing injury or death to any person.

When a person commits any of the crimes defined in the Revised Penal Code or special law with the use of the aforementioned explosives,
detonation agents or incendiary devises, which results in the death of any person or persons, the use of such explosives, detonation agents
or incendiary devices shall be considered as an aggravating circumstance. (shall be punished with the penalty of death is DELETED.)

x x x x x x x x x.

With the removal of death as a penalty and the insertion of the term xxx as an aggravating circumstance, the unmistakable import is
to downgrade the penalty for illegal possession of explosives and consider its use merely as an aggravating circumstance.

Clearly, Congress intended R.A. No. 8294 to reduce the penalty for illegal possession of firearms and explosives. Also, Congress clearly
intended RA No. 8294 to consider as aggravating circumstance, instead of a separate offense, illegal possession of firearms and explosives
when such possession is used to commit other crimes under the Revised Penal Code.

It must be made clear, however, that RA No. 8294 did not amend the definition of murder under Article 248, but merely made the use
of explosives an aggravating circumstance when resorted to in committing any of the crimes defined in the Revised Penal Code. The
legislative purpose is to do away with the use of explosives as a separate crime and to make such use merely an aggravating
circumstance in the commission of any crime already defined in the Revised Penal Code. Thus, RA No. 8294 merely added the use of
unlicensed explosives as one of the aggravating circumstances specified in Article 14 of the Revised Penal Code. Like the aggravating
circumstance of explosion in paragraph 12, evident premeditation in paragraph 13, or treachery in paragraph 16 of Article 14, the new
aggravating circumstance added by RA No. 8294 does not change the definition of murder in Article 248.

Nonetheless, even if favorable to the appellant, R.A. No. 8294 still cannot be made applicable in this case. Before the use of
unlawfully possessed explosives can be properly appreciated as an aggravating circumstance, it must be adequately established that the
possession was illegal or unlawful, i.e., the accused is without the corresponding authority or permit to possess. This follows the same
requisites in the prosecution of crimes involving illegal possession of firearm [35] which is a kindred or related offense under P.D. 1866, as
amended. This proof does not obtain in the present case. Not only was it not alleged in the information, but no evidence was adduced by
the prosecution to show that the possession by appellant of the explosive was unlawful.

It is worthy to note that the above requirement of illegality is borne out by the provisions of the law itself, in conjunction with the
pertinent tenets of legal hermeneutics.

A reading of the title[36] of R.A. No. 8294 will show that the qualifier illegal/unlawful ...possession is followed by of firearms, ammunition,
or explosives or instruments... Although the term ammunition is separated from explosives by the disjunctive word or, it does not mean that
explosives are no longer included in the items which can be illegally/unlawfully possessed. In this context, the disjunctive word or is not used
to separate but to signify a succession or to conjoin the enumerated items together.[37] Moreover, Section 2 of R.A. 8294,[38] subtitled:
Section 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives, clearly refers to the unlawful manufacture, sale, or
possession of explosives.

What the law emphasizes is the acts lack of authority. Thus, when the second paragraph of Section 3, P.D. No. 1866, as amended by
RA No. 8294 speaks of the use of the aforementioned explosives, etc. as an aggravating circumstance in the commission of crimes, it refers
to those explosives, etc. unlawfully manufactured, assembled, dealt in, acquired, disposed or possessed mentioned in the first paragraph of
the same section. What is per se aggravating is the use of unlawfully manufactured or possessed explosives. The mere use of explosives is
not.

The information in this case does not allege that appellant Antonio Comadre had unlawfully possessed or that he had no authority to
possess the grenade that he used in the killing and attempted killings. Even if it were alleged, its presence was not proven by the
prosecution beyond reasonable doubt. Rule 110 of the 2000 Revised Rules on Criminal Procedure requires the averment of aggravating
circumstances for their application.[39]

The inapplicability of R.A. 8294 having been made manifest, the crime committed is Murder committed by means of explosion in
accordance with Article 248 (3) of the Revised Penal Code. The same, having been alleged in the Information, may be properly
considered as appellant was sufficiently informed of the nature of the accusation against him.[40]

The trial court found appellant guilty of the complex crime of murder with multiple attempted murder under Article 48 of the Revised
Penal Code, which 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 of committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum
period.

The underlying philosophy of complex crimes in the Revised Penal Code, which follows the pro reo principle, is intended to favor the
accused by imposing a single penalty irrespective of the crimes committed. The rationale being, that the accused who commits two
crimes with single criminal impulse demonstrates lesser perversity than when the crimes are committed by different acts and several
criminal resolutions.

The single act by appellant of detonating a hand grenade may quantitatively constitute a cluster of several separate and distinct
offenses, yet these component criminal offenses should be considered only as a single crime in law on which a single penalty is imposed
because the offender was impelled by a single criminal impulse which shows his lesser degree of perversity.[41]

Under the aforecited article, when a single act constitutes two or more grave or less grave felonies the penalty for the most serious
crime shall be imposed, the same to be applied in its maximum period irrespective of the presence of modifying circumstances, including
the generic aggravating circumstance of treachery in this case.[42] Applying the aforesaid provision of law, the maximum penalty for the
most serious crime (murder) is death. The trial court, therefore, correctly imposed the death penalty.

Three justices of the Court, however, continue to maintain the unconstitutionality of R.A. 7659 insofar as it prescribes the death
penalty. Nevertheless, they submit to the ruling of the majority to the effect that the law is constitutional and that the death penalty can be
lawfully imposed in the case at bar.

Finally, the trial court awarded to the parents of the victim Robert Agbanlog civil indemnity in the amount of P50,000.00, P35,000.00 as
compensatory damages and P20,000.00 as moral damages. Pursuant to existing jurisprudence[43] the award of civil indemnity is
proper. However, the actual damages awarded to the heirs of Robert Agbanlog should be modified, considering that the prosecution was
able to substantiate only the amount of P18,000.00 as funeral expenses.[44]

The award of moral damages is appropriate there being evidence to show emotional suffering on the part of the heirs of the
deceased, but the same must be increased to P50,000.00 in accordance with prevailing judicial policy.[45]

With respect to the surviving victims Jaime Agbanlog, Jimmy Wabe, Rey Camat and Gerry Bullanday, the trial court awarded
P30,000.00 each for the injuries they sustained. We find this award inappropriate because they were not able to present a single receipt to
substantiate their claims. Nonetheless, since it appears that they are entitled to actual damages although the amount thereof cannot be
determined, they should be awarded temperate damages of P25,000.00 each.[46]

WHEREFORE, in view of all the foregoing, the appealed decision of the Regional Trial Court of San Jose City, Branch 39 in Criminal
Case No. L-16(95) is AFFIRMED insofar as appellant Antonio Comadre is convicted of the complex crime of Murder with Multiple Attempted
Murder and sentenced to suffer the penalty of death. He is ordered to pay the heirs of the victim the amount of P50,000.00 as civil
indemnity, P50,000.00 as moral damages and P18,000.00 as actual damages and likewise ordered to pay the surviving victims, Jaime
Agbanlog, Jimmy Wabe, Rey Camat and Gerry Bullanday, P25,000.00 each as temperate damages for the injuries they sustained.
Appellants Gregorio Comadre and Danilo Lozano are ACQUITTED for lack of evidence to establish conspiracy, and they are hereby
ordered immediately RELEASED from confinement unless they are lawfully held in custody for another cause. Costs de oficio.

In accordance with Section 25 of Republic Act 7659 amending Article 83 of the Revised Penal Code, upon finality of this Decision, let
the records of this case be forwarded to the Office of the President for possible exercise of pardoning power.

SO ORDERED.

[G.R. No. 133191-93. July 11, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. WILFREDO ALARCON, EDDIE TOMPONG and EDUARDO GUMAWA, accused.

EDDIE TOMPONG and EDUARDO GUMAWA, accused-appellants.

DECISION

PER CURIAM:
 In the joint decision[1] of 26 January 1998, of the Regional Trial Court of Bugasong, Antique, Branch 64, in Criminal Case No.
5630, for rape with homicide, Criminal Case No. 5631, for rape, and Criminal Case No. 5632, for rape, accused Wilfredo Alarcon,
Eddie Tompong, and Eduardo Gumawa, hereafter ALARCON, TOMPONG and GUMAWA, respectively, were found guilty
beyond reasonable doubt of the crimes charged therein. The victim in these cases was Aisha Dava (hereafter AISHA). The
decretal portion of the decision reads as follows:

In view thereof, this court finds the accused WILFREDO ALARCON, EDDIE TOMPONG AND EDUARDO GUMAWA, guilty beyond reasonable
doubt as co-conspirators in three (3) crimes with their corresponding penalties, as follows:

1. Criminal Case No. 5630, for RAPE WITH HOMICIDE: EDDIE TOMPONG AND EDUARDO GUMAWA are sentenced to DEATH. WILFREDO
ALARCON being a minor of 17 years old at the time of commission of the offense is sentenced to Reclusion Perpetua with the accessories
imposed by law.

Accused are ordered to pay, jointly and solidarily, Lucia Dava, the offended party, the amount of P50,000 as indemnity for the death of
Aisha Dava; P50,000 as exemplary damages and P150,000 as moral damages.

2. Criminal Case No. 5631, for RAPE, resulting to the death of Aisha Dava, committed by more than two (2) persons, aggravated by superior
strength, EDDIE TOMPONG and EDUARDO GUMAWA are sentenced to Death; WILFREDO ALARCON is sentenced to Reclusion Perpetua
with the accessories imposed by law.

Accused are ordered to pay the offended party, jointly and solidarily, the amount of P50,000 as exemplary damages and P100,000 as
moral damages.

3. Criminal Case No. 5632, for RAPE, resulting to the death of Aisha Dava committed by more than two (2) persons, aggravated by superior
strength, EDDIE TOMPONG and EDUARDO GUMAWA are sentenced to Death. WILFREDO ALARCON is sentenced to Reclusion Perpetua
with the accessories imposed by law.

Accused are ordered to pay the offended party, jointly and solidarily, the amount of P50,000 as exemplary damages and P100,000 as
moral damages.[2]

In the Information[3] in Criminal Case No. 5630, the crime of rape with homicide was allegedly committed in this manner:

That on or about May 26, 1995, in the Municipality of Bugasong, Province of Antique, Republic of the Philippines and within the jurisdiction of
this Honorable Court, the above-named accused surprised one Aisha Dava who was alone at a tree-covered hillside, conspiring,
confederating, mutually helping each other and one after the other, by means of force and intimidation, willfully, unlawfully and feloniously
did lie and succeed in having carnal knowledge of said Aisha Dava who was then only eleven (11) years old and by reason or on the
occasion thereof, the accused willfully, unlawfully and feloniously stabbed and slashed the neck of the victim with a knife/scythe and killed
her in the process.

Contrary to the provisions of Article 335 of the Revised Penal Code in relation to Article 249 of the same code and Republic Act 7659.[4]

The Informations[5] in Criminal Case No. 5631 and Criminal Case No. 5632 each charged the crime of rape and are similarly
worded with the crime allegedly committed in this manner:

That on or about May 26, 1995, in the Municipality of Bugasong, Province of Antique, Republic of the Philippines and within the jurisdiction of
this Honorable Court, the above-named accused being then armed with a knife/scythe surprised one Aisha Dava who was alone at a
trees-covered [sic] hillside, conspiring, confederating and mutually helping each other and one after the other, by means of force and
intimidation, willfully, unlawfully and feloniously did lie and succeed in having carnal knowledge of said Aisha Dava who was then only
eleven (11) years old, against her will.

Contrary to the provisions of Article 335 of the Revised Penal Code and as amended by R.A. 7659.

Upon their arraignment ALARCON, TOMPONG and GUMAWA each pleaded not guilty. Joint trial on the merits ensued. The
prosecution presented five witnesses, namely: Dr. Irma J. Adayon, Lucia Dava, Melita Cancer, Ostimiano Untalan and Amador
Martinesio and rebuttal witness Pedro Enque.

The evidence for the prosecution is faithfully summarized in the Appellees' Brief, as follows:

On May 26, 1995 at around 7:00 o'clock in the morning, accused Wilfredo Alarcon, 17 years of age, was proceeding to Sitio Casoy,
Bagtason, Bugasong, Antique to gather firewood (pp. 3 to 4 & 15, tsn. May 8, 1997). On his way, he met "Lola Magang", the grandmother of
the eleven [ 11 ] year old victim Aisha Dava (p. 5, tsn. May 8, 1997; Exh. B; pp. 5, 14, t7 & 18, tsn. June 14, 1996), carrying goods to be sold at
the market in Valderrama (p. 5, tsn. May 8, 1997).

Upon reaching Sitio Casoy, Alarcon saw appellant Eddie Tompong, 42 years old, with her wife Gloria Tompong, and appellant Eduardo
Gumawa gathering firewood and tying them in bundles (p. 6, tsn. May 8, 1997; p. 2, tsn. July 2, 1997). The victim was also there watching
the group bundle the firewood (p. 6, tsn. May 8, 1997). As the victim watched, appellants Tompong and Gumawa were teasing her telling
her that they will court her. The victim reacted by throwing pebbles at both appellants, and left the place saying that she will just look for
the carabao she was tending (pp. 7-8, tsn. May 8, 1997).

After finishing her task, Gloria Tompong left, leaving appellants and Alarcon behind (p. 8, ibid.). Appellant Tompong approached Alarcon
and said that they will follow the victim. Appellants and Alarcon then proceeded to the place where the victim was grazing her carabao
(pp. 8-9, id,).

The victim saw them approaching and she stood up and looked at them (pp. 9-10, id.). Upon reaching the place where the victim was
standing, appellant Tompong suddenly pushed Alarcon towards the victim causing them both to fall to the ground and roll together (p.
10, id.). As they rolled, the victim scratched the face of Alarcon to defend herself (pp. 22 to 23, tsn. July 15, 1997). But while the victim was
lying flat on her back Tompong ran towards her and got the knife tucked on her waist. The victim shouted and cried as appellants and
Alarcon ganged upon her (p. 11, tsn. May 8, 1997).

At that instant, prosecution eyewitness Melita Cancer heard the cry of the victim. Cancer was on her way home after coming from the
victim's house which is situated at around 80 meters from the crime scene. She had gone there to collect money from the victim's mother
Lucia Dava, but left after discovering that nobody was around. Hearing the victim's cry, Cancer looked around and saw, around 40 meters
away, appellants Tompong and Gumawa, and their co-accused Alarcon, holding and undressing the victim. Cancer immediately fled the
area startled and afraid of what she saw (vide: pp. 2-6, tsn. June 6, 1996).

Another person, Ostimiano Untalan, 68 years old, a retired PC officer, saw the incident. He was on his way to the bamboo plantation of Mr.
Salvador Dava in Sitio Sio, to inquire into the availability of bamboo poles he intended to buy. While walking along a pathway in Sitio Sio,
Untalan heard the shouts of the victim (pp. 5-8, tsn. Sept. 18, 1996). Untalan felt afraid and took cover and concealed himself inside a thick
"bungargar" bush around four [4] feet tall (pp. 8, 25, 51 & 52, ibid.). He saw three [3] malefactors about seven [7] meters away from him
sexually molesting the victim (pp. 8-9 & 40, tsn. Id.). Untalan saw the victim lying flat on her back with both hands being held by one of the
malefactors whose name he later learned to be Wilfredo Alarcon. The other malefactor, whose name he later learned to be Eddie
Tompong, laid on top of the victim. And the third malefactor, whose name he later learned to be Eduardo Gumawa, was covering the
victim's mouth. Untalan saw Tompong, Gumawa and Alarcon took turns in sexually abusing the victim for about half an hour. Thereafter,
Alarcon struck the neck of the victim with a piece of wood and slashed further the throat and left cheek of the victim using a knife about
six (6) or seven (7) inches long. Gumawa dragged the body of the victim towards the canal. Tompong and Alarcon followed and covered
it with twigs of "bungargar". Gumawa told his companions that "they will separate and nobody will tell what happened". Untalan left his
hiding place and went home five (5) minutes after the malefactors had fled (vide: pp. 9-16, 38-41, & 47-53, id.; see also pp. 11-16, tsn. May
8, 1997).

Three [3] days thereafter, on May 29, 1995, the cadaver of the victim in the state of decomposition was found by the police in Sitio Sio (pp.
32-33, tsn. May 30, 1996; Exhs. C to C-7, Brown Envelope pasted on Folder I, Crim. Case No. 5630). An autopsy was performed by Dr. Irma J.
Adayon, Rural Health Physician of Bugasong, Antique, at about 3:30 o'clock in the afternoon that same day (Exh. A, pp. 17-18, Folder I,
Crim. Case No. 5630). The Autopsy Report dated May 30, 1995 prepared by Dr. Adayon disclosed the following findings:

1. General Appearance:

Dead; lying with his head and trunk slightly elevated from the rest of the body; supine position; both arms slightly flexed and perpendicular
to the body; both thighs and knees flexed; knees separated from each other 40 cms. apart; wearing T-shirt stained with blood and rolled
upward to the level just below the nipples; wearing panty and short pants stained with blood; short pants rolled upwards to the inguinal
area.

2. Wound, 6 cms. long, gaping, neck, right, involving right sternocleidomastoid muscle, right common carotid artery and vein.

3. Wound, stabbed, 2.5 cms. long, gaping, left buccinator area, running mediolaterally, involving buccinator muscle thru and
thru.

4. Labia majora and labia minora;

Medical borders not prominent because it is markedly covered by a swollen clittoris; gaping.

5. Clittoris:

Swollen and elevated by 2.5 cms.; 6.5 cms. long; 3 cms. wide; oblong in shape; presence of somewhat fresh blood in the superior third;
wound in the inferior half.

5. Vaginal canal:

Presence of old mucuslike material in the opening, left, lower quadrant; edges irregular; rugosities not discint; admits one finger.

6. Fourchette:

Rounded base.
 7. Hymen:

Not clearly identified because of the extremely swollen clittoris.

(Exh. A, [supra])

On May 30, 1995, at 8:00 o'clock in the morning, a certain Jose Pacete executed his sworn statement before the Chief of Police, Bugasong
Police Station pointing to Tompong, Gumawa and Alarcon as the victims assailants (pp. 6-9, Folder I, Crim. Case No. 5630). At 12:00 noon of
the same day, a certain Margarita Pacete y Magbanua likewise appeared at said police station and executed his sworn statement
pointing to the same culprits (pp. 10-13, Ibid). The following day, on May 31, 1995 at 4:25 p.m., a certain Luther Valenzuela went to the
police station also attesting to the fact that he saw Tompong, Gumawa and Alarcon rape and kill the victim (pp. 4-5, id.). On June 5, 1995,
prosecution eyewitness Melita Cancer also executed an affidavit also identifying appellants and Alarcon as the assailants (p. 3, Id.). These
sworn statements supported the criminal complaint for rape and homicide filed against appellants and Alarcon (p. 1, id.).

On June 5, 1995, appellants and Alarcon were arrested and detained by the police (p. 20, id.)

Upon the other hand, ALARCON testified on his behalf. The witnesses presented for TOMPONG and GUMAWA were
TOMPONG himself, Richard Bernabe and Edna Apolinario. The testimony of GUMAWA was dispensed with since it would only
corroborate that of TOMPONG.

ALARCON, 19 years old, single and resident of Sitio Sio, Bagtason, Bugasong, Antique, testified that at around seven
o'clock in the morning of 26 May 1995 he went to Sitio Casoy in Barangay Bagtason to gather firewood. He met Lola Magang on
the way. Upon reaching Sitio Casoy he saw TOMPONG, GUMAWA, Gloria Tompong and AISHA. The first three were bundling
firewood while AISHAwas watching them. TOMPONG and GUMAWA were teasing AISHA telling her they would court her. AISHA
threw pebbles at the two while ALARCON and Gloria Tompong remained silent. After bundling the firewood, Gloria went home.
After she left, TOMPONG and GUMAWA kept on teasing AISHA, but the latter grew weary of their teasing and left them to look
for her carabao. After AISHA left, TOMPONG and GUMAWA approached ALARCON and told him to go with them to follow
AISHA. He refused but TOMPONG pushed him. He fell on the root of a santol tree and he was leaning on it when GUMAWA
approached him. GUMAWA pointed a bolo at him and threatened him that if he did not go with them, GUMAWA would hack
him. Scared, ALARCON went with TOMPONG and GUMAWA to follow AISHA. Upon finding AISHA, TOMPONG pushed ALARCON
toward her. ALARCON fell on AISHA, and both fell to the ground. TOMPONG then ran towards them and got the knife tucked in
AISHAs waist. TOMPONG covered AISHAs mouth while ALARCON rose to run away, but GUMAWA held him and pointed the bolo
at him. GUMAWA instructed him to hold the hands of AISHA. ALARCON could not refuse because the bolo was still pointed at
him, and TOMPONG also pointed his bolo at ALARCON's neck while covering AISHA's mouth. ALARCON was thus forced to hold
both of AISHA's hands. GUMAWA held AISHA's feet and removed her shorts while she was lying on her back. TOMPONG told
GUMAWA that he (TOMPONG) would go first. ALARCON understood this to mean TOMPONG would be the first to have sex with
AISHA. TOMPONG spread the legs of AISHA, and inserted his finger then his organ into her vagina. TOMPONG got AISHA's shorts
and wiped her sexual organ with it. ALARCON saw blood on AISHA's vagina when TOMPONG wiped it. Then GUMAWA took his
turn to rape AISHA. While GUMAWA was raping AISHA, TOMPONG was pointing his bolo at ALARCON and after GUMAWA
finished raping AISHA, TOMPONG faced ALARCON and told him to take his turn, but ALARCON cried and said that he would not
do it. Because he did not, TOMPONG told GUMAWA: "We cannot do otherwise." GUMAWA then took a piece of wood beside
him and struck the neck of AISHA, put on her shorts and pulled her towards a hole near some shrubs. GUMAWA warned
ALARCON not to tell anybody about what happened. TOMPONG then slashed AISHA's neck with the knife he took from her
waist and dropped the knife beside AISHA's body. TOMPONG approached ALARCON and told him not to tell anybody about
the incident and, if he was caught, to just admit it. GUMAWA and TOMPONG each promised to pay ALARCON P500 if the latter
admitted to the crime.[6]

ALARCON further testified that he was arrested without a warrant by Quioyo, a policeman, the following Monday, 29 May
1995. He was brought to the Municipal Building where after one night he implicated his co-accused. He told AISHA'S uncle that it
was TOMPONG and GUMAWA who killed AISHA. He was made to sign some papers, but he did not know what he signed. [7]

Richard Bernabe, first witness for TOMPONG and GUMAWA, declared that at around noon of 26 May 1995, his neighbor
ALARCON went to his house to ask for help as he had raped a child. ALARCON confessed to him that he did it alone. He
accompanied ALARCON to the place of the incident and there he saw the dead body of AISHA. On their way back, he again
asked ALARCON who his companions were in raping AISHA. ALARCON replied that he was alone. He also admitted that he
killed AISHA by slashing her head. ALARCON spent the night at Bernabe's house. Bernabe then reported ALARCON's confession
to his father, who then later narrated the incident to Gloria Tompong, TOMPONG's wife, at the time of the apprehension of
GUMAWA and TOMPONG. Richard Bernabe further declared that GUMAWA and TOMPONG told him that they were leaving
Sitio Sio on 26 May 1995 to work at Apgahan, Patnongon, Antique. He did not see the two at Sitio Sio from 26 May to 28 May
1995.[8]

Edna Apolinario, the second witness for TOMPONG and GUMAWA, testified that on 22 May 1995, TOMPONG, GUMAWA
and her husband began the construction of her house in Apgahan, Patnongon, Antique. TOMPONG and GUMAWA worked
continuously from 22 May up to 27 May 1995. At six o'clock in the morning of 28 May 1995, the two went home. She expected
them to come back the following Monday as the house was not yet finished but then she heard over the radio that the two
were arrested by police. As laborers, TOMPONG and GUMAWA worked the whole day, from 7:30 in the morning to about 4:30 or
5:00 in the afternoon, and slept in her old house adjacent to the one being constructed.[9]

Accused TOMPONG testified that he was 42 years old, married, a carpenter and resident of Sitio Sio, Bagtason, Bugasong,
Antique. In May 1995, he and GUMAWA worked as carpenters in the construction of the house of Edna Apolinario. The two left
Bagtason for Apgahan, Patnongon, Antique, on 21 May 1995 at 7:30 a.m. Before he left Bagtason, he met Richard Bernabe and
informed the latter that he was going to Apgahan to work on the house of Edna Apolinario. He and GUMAWA began working
on the house of Edna on 22 May 1995. Their work schedule was from 7:30 to 11:00 a.m. and 1:00 to 5:00 p.m. everyday. They
spent the nights at the old house of Edna. They worked for six days, and went home to Bagtason on the morning of 28 May 1995.
On 26 May 1995, when the crimes in question were allegedly committed, he and GUMAWA were working on Edna's house and
they never left the site.[10]

TOMPONG further declared that in the morning of 29 May 1995, he and GUMAWA were apprehended by policemen in
Bugasong and brought to the Municipal Building of Bugasong. They were released that night at eight o'clock but were re-
arrested on 30 May 1995. They were told that they had committed the crime of rape and they had been detained from that
date until the time he testified. He denied raping AISHA, forcing ALARCON to have sexual intercourse with AISHA, and meeting
ALARCON in the morning of 26 May 1995.[11]

The prosecution presented Pedro Engue as rebuttal witness. He testified that he had resided in Sitio Sio for the last five years
and TOMPONG is his neighbor. TOMPONG's usual work was selling firewood which he gathered from the land owned by the
Davas. Engue did not know whether TOMPONG had ever constructed a house in Sitio Sio for other people. He added though
that GUMAWA is also a firewood gatherer in Sitio Sio.[12]

ALARCON was recalled to rebut the testimony of Richard Bernabe and TOMPONG. ALARCON denied that he asked
anybody for help or to accompany him to bury AISHA at Sitio Casoy at around 12:00 noon of 26 May 1995. He admitted seeing
Richard Bernabe on 26 May 1995 at his house chopping firewood but he did not talk to him. He contradicted TOMPONG's claim
that he, TOMPONG and GUMAWA were in Patnongon on said date. On the contrary, ALARCON maintained that the two were
at Sitio Sio gathering and bundling firewood. ALARCON also declared that TOMPONG and GUMAWA are not carpenters. He
likewise admitted that the scratches on his face on 26 May 1995 were caused by AISHA's nails when the girl tried to push him
away after TOMPONG pushed him towards her.[13]

After evaluating all the evidence before it, the trial court found the theory of TOMPONG and GUMAWA hard to believe. It
disregarded the defense of alibi interposed by them in the face of the positive identification by prosecution witnesses Ostimiano
Untalan, Melita Cancer and ALARCON, their co-accused. The trial court also believed it was not impossible for TOMPONG and
GUMAWA to be at the scene of the crimes at the time of their commission. It explained that "Apgahan to Ibaures is only
seventeen (17) kilometers in distance. Ibaures to Barangay Bagtason is four (4) kilometers and Bagtason to Sitio Sio is only one (1)
kilometer away. There are jeepneys plying along this route including motorized tricycles. From Apgahan, Ilaures could be
reached in thirty (30) minutes and five minutes from Ilaures to Bagtason."

Accordingly, it rendered the appealed judgment earlier quoted.

The judgment against TOMPONG and GUMAWA is before us on automatic review pursuant to Article 47 of the Revised
Penal Code, as amended by Section 22 of R.A. No. 7659. ALARCON did not appeal from the judgment. A notice of appeal
should have been filed pursuant to Section 3, Rule 122 of the Rules of Court. As to him, the decision has become final.

This decision then treats only of the review of the judgment against TOMPONG and GUMAWA.

We quote verbatim the assignment of errors in the Appellants' Brief:

I. THE LOWER COURT ERRED IN BASING ITS DECISION ON THE CONTRADICTORY AND OUT OF THIS WORLD TESTIMONIES OF THE TWO
(2) ALLEGED EYE WITNESS, MELITA CANCER AND OSTIMIANO UNTALAN AND OTHER PROSECUTION WITNESSES.

II. THE LOWER COURT ERRED IN DISREGARDING THE DEFENSE OF THE ACCUSED EDDIE TOMPONG AND EDUARDO GUMAWA OF
ALIBI.

TOMPONG and GUMAWA find incredible Melita Cancer's failure to do anything to help the victim who was only 10-1/2
years old and the daughter of her good friend, secure help for the girl, and report the incident immediately upon arriving home.
They also found the testimony of Ostimiano Untalan improbable and contradictory. Finally, they fault the trial court for not giving
any weight to their defense of alibi.

In the Brief for the Plaintiff-Appellee filed on 26 January 2000, the Office of the Solicitor General debunks the claims of
TOMPONG and GUMAWA and urges us to affirm the challenged judgment, except as to the civil liabilities which, pursuant to our
rulings in People vs. Victor,[14] People v. Robles,[15] and People v. Maglente,[16] should be modified: the civil indemnity in Criminal
Case No. 5630 should be increased from P50,000 to P100,000, and in each of Criminal Case No. 5631 and Criminal Case No.
5632, civil indemnity of P75,000 and moral damages of P50,000 should be awarded but the exemplary damages should be
vacated.

After a thorough review of the evidence on record, we affirm the judgment of conviction of accused-appellants
TOMPONG and GUMAWA.

Once again, as is often the case in appeals from convictions in criminal cases, at the core of this petition is the credibility
of eyewitnesses. The trial court found worthy of belief the accounts of Melita Cancer, Ostimiano Untalan and co-accused
ALARCON. We can do no less. Appellate courts accord the highest respect to the trial court's assessment of the testimonies of
eyewitnesses by the trial court because of its unequaled opportunity to observe on the stand their demeanor and manner of
testifying and to detect whether they are telling the truth or not.[17] This rule admits of exceptions, such as when the evaluation
was reached arbitrarily or when the trial court overlooked, misunderstood, or misapplied some facts or circumstances of weight
and substance which could affect the result of the case.[18]None of the exceptions obtains in these cases.

TOMPONG and GUMAWA capitalize on Melita Cancer's running away, not attempting to secure help for AISHA, and not
telling anybody what she had witnessed, as attributes of the falsity of her testimony.

We do not agree. As clearly and candidly explained by Melita Cancer she was afraid when she saw what was happening.
As for not telling anybody, this was adequately explained when she testified:
Q: You did not tell anybody about the incident which you have witnessed?

A: No, sir.

Q: Why?

A: I was frightened so my mind was empty, sir.

Q: What was the reason why you are afraid?

A: I cannot understand why I was afraid of what I know, sir.

Q: Afraid of what?

A: I cannot understand my mind why I was afraid.

Q: Up to now are you afraid?

A: I am afraid, sir.[19]

There is no accounting for the varied reactions an eyewitness might have relative to what he might be seeing. There is no
standard form of human behavioral response when one is confronted with a strange, startling or frightful experience. [20] Fear has
been known to render some people immobile, if not useless, in some life-and-death situations.[21] At any rate, Melita Cancer
firmly attested to the following: GUMAWA held the thighs of AISHA, TOMPONG removed AISHA's panty and ALARCON held
AISHA's hands.

TOMPONG and GUMAWA impute the same lack of credibility on Ostimiano Untalan for his failure to report the matter to
the police and for inconsistencies in his testimony. But Untalan explained his lapse thus:

Q: Now since you are interested in this case you did not volunteer to any policeman in Bugasong, Antique telling them to take your
affidavit in order that you will be believed upon during the trial of this case?

A: No, I just went to Salvador Dava, Sir.

Q: When was that when you went to Salvador Dava?

A: Three (3) months after the incident in the month of September, 1995, Sir.

ATTY. SALVANI (Cont'd.)

In other words you kept it for yourself about this incident and the only person whom you revealed this incident for the first time is
Salvador Dava three (3) months after the incident?

A: Yes, Sir, because I was afraid that they might go against me, Sir.[22]

It is not uncommon for a witness to a crime to show some reluctance about getting involved in a criminal case, and in fact
the natural reticence of most people to get involved is of judicial notice.[23] It is understandable for a witness to fear for his safety
especially when townmates are involved in the commission of the crime.[24] Moreso in Untalan's circumstances: he is old and
disabled.

Neither is there merit to the alleged inconsistency that Untalan made it appear that only TOMPONG and GUMAWA had
sexual intercourse with AISHA, while ALARCON merely stood and hit AISHA with a piece of wood, yet under examination by the
court, he testified that three persons raped AISHA. Untalan never did categorically state that ALARCON did not rape AISHA.
Accused- appellants failed to elevate this supposed inconsistency to the level sufficient to strip the witness of credibility. [25] In any
case, Untalan was unswerving in his identification of TOMPONG and GUMAWA as the perpetrators of the rape and killing of
AISHA. What is vital is his testimony that he saw the victim being raped and killed. We find no contradiction or hesitancy in
Untalan's detailed account of the rape and killing which conforms with the medical findings of Dr. Irma Adayon.

Lastly, TOMPONG and GUMAWA controvert ALARCON's admission in court that they raped the victim. They point out that
ALARCON's admission that he sustained scratches on his face from AISHA is proof that he was the one who attacked her and he
was acting alone, as he supposedly confessed to Richard Bernabe. They are clutching at straws. We note that ALARCON
testified that he sustained scratches on his face as a result of his being pushed by TOMPONG towards AISHA. Even without
considering the testimony of ALARCON there were two other credible witnesses to the episode. These witnesses identified
TOMPONG and GUMAWA, as well as ALARCON, as the perpetrators of the crimes. The record being bereft of any evidence that
the prosecution witnesses were motivated by ill considerations and intent, their testimony must be accorded full probative
value.[26]

Let us now address the defense of alibi put up by TOMPONG and GUMAWA. They claim that they could not have raped
AISHA since they were working that day in Apgahan constructing the house of Edna Apolinario. To establish alibi, an accused
must show that he was at some other place for such a period of time that it was impossible for him to have been at the place
where the crime was committed at the time of its commission.[27] The trial court, after noting the distance between Apgahan to
Sitio Sio in Barangay Bagtason where the crimes were committed, held that it was not physically impossible for TOMPONG and
GUMAWA to be present in Bagtason at the commission of the offenses. The burden of proving alibi lies with TOMPONG and
GUMAWA and they have failed to discharge this burden. Justifiably, courts have always looked upon the defense of alibi with
suspicion and have received the same with caution, not only because it is inherently weak and unreliable but also because of
its easy fabrication.[28] It cannot prevail over, and is worthless in the face of, positive identification by credible witnesses that the
accused perpetrated the crime.[29] In light of the positive identification of TOMPONG and GUMAWA by credible eyewitnesses
Melita Cancer and Ostimiano Untalan, as well as the testimony of their co-accused ALARCON, their defense of alibi cannot be
given any weight. As for Richard Bernabe's assertion that TOMPONG told him they would be working in Apgahan, the same has
 little value as Bernabe did not actually see for himself that TOMPONG and GUMAWA were indeed in Apgahan working on the
morning of 26 May 1995.

We are convinced beyond any doubt that TOMPONG, GUMAWA and ALARCON each raped AISHA. Since the facts
adduced prove beyond doubt that they conspired and mutually helped each other in committing the rapes, each should be
held criminally liable for these rapes. Since AISHA was killed on the occasion thereof, each should be liable for three complex
crimes of rape with homicide.

Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, provides, inter alia:

when by reason or on the occasion of the rape, homicide is committed, the penalty shall be death.

Fortunately for TOMPONG and GUMAWA it was only in Criminal Case No. 5630 that they were charged with ALARCON
with the crime of rape with homicide. They were charged only with rape in Criminal Case Nos. 5631 and 5632. The trial court
imposed on them in each of such cases the penalty of death because the crime in each case was "committed by more than
two (2) persons, aggravated by superior strength." We do not agree with the trial court on this issue. While it may be true that
Article 335 of the Revised Penal Code, as amended by R.A. No. 7659 provides, inter alia, that:

whenever the rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to
death.

and that the presence of an aggravating circumstance would justify the imposition of the graver penalty of death, the fact of
commission "by two or more persons," which partake of the nature of a qualifying circumstance, was not alleged in the
information in Criminal Cases Nos. 5631 and 5632. The mere fact that three were accused therein did not amount to a
specification of the qualifying circumstance in question and was insufficient for the purpose of complying with the constitutional
requirement that the accused be informed of the nature and cause of the accusation against them.[30]

Also, abuse of superior strength as a generic aggravating circumstance, which may be appreciated against the accused
even if not alleged, was not proven in this case. Mere superiority in number is not enough, there must be proof of deliberate
intent to take advantage of superior strength.[31]

It follows then that in Criminal Cases Nos. 5631 and 5632, there being no evidence of any modifying circumstance, the
penalty to be imposed pursuant to Article 63 of the Revised Penal Code, is reclusion perpetua, the lesser of the penalties
prescribed by Article 335 of the Revised Penal Code as amended by R.A. No. 7659.

As regards the imposition of the death penalty in Criminal Case No. 5630, four Members of the Court have continued to
maintain their view that R.A. No. 7659 is unconstitutional insofar as it prescribes the death penalty. Nevertheless, they submit to
the ruling of the majority that this law is constitutional and that the death penalty was lawfully imposed in this case.

As to the damages awarded, modifications thereof are in order. In Criminal Case No. 5630 for rape with homicide, the
indemnity should be increased from P50,000 to P100,000,[32] while the moral damages and exemplary damages should be
reduced from P150,000 to P50,000 and from P50,000 to P25,000,33[33] respectively.

In each of Criminal Cases nos. 5631 and 5630, there should be an award of P50,000 as indemnity, while the award of moral
and exemplary damages should be reduced from P100,000 to P50,000, and from P50,000 to P25,000, respectively.

WHEREFORE, in view of all the foregoing, judgment is hereby rendered affirming the decision of the Regional Trial Court of
Bugasong, Antique, Branch 34, finding accused-appellants EDDIE TOMPONG and EDUARDO GUMAWA guilty beyond
reasonable doubt as principal of the crimes of rape with homicide in Criminal Case No. 5630, rape in Criminal Case No. 5631
and rape in Criminal Case No. 5632, and

1) IMPOSING upon each of them the penalty of death in Criminal Case No. 5630, but modifying the damages awarded by
increasing the civil indemnity from P50,000 to P100,000 and reducing the awards of moral damages from P 150,000
to P50,000 and exemplary damages from P50,000 to P25,000;

2) IMPOSING upon each of them in Criminal Case No. 5631 and Criminal Case No. 5632 the penalty of reclusion perpetua,
thereby modifying the sentence of death imposed by the trial court, and modifying further the awards of damages in each
of said cases by ordering each of them to pay P50,000 as indemnity, and reducing the awards of moral damages from
P100,000 to P50,000 and of exemplary damages from P50,000 to P25,000.

Costs de oficio.

SO ORDERED.

G.R. No. 151834 June 8, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
JUAN G. ESCOTE, JOEY VIC PERAS (Acquitted), ROLAND GARCIA (Acquitted), ANGELITO R. LISONA (Acquitted), and "BUBOY," accused.
JUAN G. ESCOTE, appellant.

DECISION
DAVIDE, JR., C.J.:

Appellant Juan G. Escote appeals from the decision1 dated 15 October 2001 of the Regional Trial Court of Malolos, Bulacan, Branch 78, in
Criminal Case No. 193-M-2000, which found him guilty beyond reasonable doubt of the crime of murder and sentenced him to suffer the
penalty of reclusion perpetua and to pay the heirs of the victim ₱50,000 as death indemnity and ₱50,000 as indemnity ex delicto.

On 31 January 2000, Escote, together with Roland Garcia, Angelito Lisona, Joey Vic Peras, and one alias Buboy, was charged with Murder
for the death of Carlos Dueñas. The accusatory portion of the information reads:

That on or about the 16th day of June 1999, in the municipality of Meycauayan, province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, armed with firearms and with intent to kill one Carlos DueÔas,
conspiring, confederating and mutually helping one another, did then and there willfully, unlawfully and feloniously, with evident
premeditation, abuse of superior strength and treachery, attack, assault and shoot with the said firearms they were then provided
the said Carlos DueÔas, hitting him in his body, thereby causing him serious physical injuries which directly caused his death.2

Upon their arraignment on different dates, all the accused pleaded not guilty except the one alias Buboy whose true name and identity
were never known.

The evidence for the prosecution established the following facts:

On the evening of 16 June 1999, while Liza de la Cruz, a resident of Pandayan, Meycauyan, Bulacan, was on her way to buy
bread, she noticed a gray Lancer box-type car parked alongside the Pandayan Memorial Cemetery. She became suspicious of
the men inside the car, as she observed them to bow their heads whenever light from oncoming vehicles hit them. Curious, she
approached the car and met the eyes of the man on the driver’s seat. The man glared at her ("pinandilatan ng mata"). Very
much intimidated, she ran away. Upon arriving home, she heard gunshots.3

Meanwhile, Allan Manalo was watching TV at his home. During the commercial break, he went outside and saw a gray Lancer box-type
car at about eight meters away and near the Pandayan Memorial Cemetery. Suspicious that the car’s engine was running while parked,
he wrote down the car’s plate number.4

At the gate of the memorial cemetery, Ricardo Caitum was having a conversation with the guard when he saw a man alight from a gray
Lancer box-type car, which was parked at the side of the cemetery. The man flagged down an approaching orange Honda Civic car.
When the orange car stopped, the man asked its driver to alight, but the latter refused. Using a short firearm, the man shot the driver of the
orange car, who thereafter attempted to escape the assault by speeding away. The man, however, fired again at the driver of the orange
car.5

The driver of the orange car was Carlos Dueñas, who died of hypovolemic shock as a result of a gunshot wound in the left lower extremity.6

In open court, Liza de la Cruz identified Escote as the driver of the gray Lancer box-type car who glared at her.7Ricardo Caitum likewise
identified Escote as the person who alighted from the gray Lancer box-type car and shot the driver of the orange Honda Civic car.8

For its part, the defense presented Escote as its lone witness. He testified that on 19 July 1999, when the crime was committed, he was
already in hiding at Camiguin Island, being an escaped death convict from the Provincial Jail of Malolos, Bulacan. He lived with his cousins
and worked as a fisherman from 30 September 1998 to 18 August 1999. Unable to bear rural life, he went to Quezon City, Metro Manila,
where he was arrested on 26 September 1999. He vehemently denied the charge against him. He also denied knowing the other accused
prior to his arrest. He claimed that he was merely implicated by a certain Willy who was tortured by the Criminal Investigation and
Detection Group.9

In its decision, the trial court gave full faith and credit to the witnesses for the prosecution. It upheld the witnesses’ positive identification of
Escote as the author of the crime and rejected his uncorroborated denial and alibi. It therefore convicted him of murder, with treachery as
the qualifying circumstance. Finding no proof of the participation of the other accused in the execution of the crime, the trial court
acquitted the three other named accused.10

Before us, Escote challenges the decision of the trial court convicting him of the murder of Carlos Dueñas on the ground of reasonable
doubt. Escote would like us to believe his defenses of alibi and frame-up. He additionally contends that the darkness of the night and the
dimly lighted locus criminis precluded a clear identification of the assailant; hence, the prosecution witnesses were merely making wild
guesses. He further questions the credibility of prosecution witness Liza de la Cruz by pointing out her inconsistent statements about the
assailant having a thin moustache and no moustache.11

The Office of the Solicitor General (OSG) maintains that Escote’s guilt has been proved beyond reasonable doubt by the positive
testimonies of the prosecution witnesses. They could not have erred in their identification of Escote as the assailant, since the place where
the crime took place was adequately illuminated by the lights coming from the residential houses nearby. Besides, these prosecution
witnesses had no improper motive to implicate him, and therefore, the finding of the trial court on the credibility of witnesses should not be
disturbed. Further, the OSG asserts that Escote’s defense of alibi is unsubstantiated. It also agrees with the trial court’s appreciation of
treachery.12
The appeal is without merit. We find no cogent or compelling reason to overturn the trial court’s decision.

Well-entrenched in our jurisprudence is the doctrine that the assessment of the credibility of witnesses lies within the province and
competence of trial courts. This doctrine is based on the time-honored rule that the matter of assigning values to declarations on the
witness stand is best and most competently performed by the trial judge who, unlike appellate magistrates, can weigh the testimony in the
light of the declarant’s demeanor, conduct, and attitude at the trial and is thereby placed in a more competent position to discriminate
between truth and falsehood. Thus, appellate courts will not disturb the credence accorded by the trial court to the testimonies of
witnesses unless it is clearly shown that the trial court has overlooked or disregarded arbitrarily facts and circumstances of significance in the
case.13 None of the exceptions was shown in the case at bar.

Verily, we find no reason to doubt the identification by the prosecution witnesses of Escote as the perpetrator of the crime despite the
dimly-lighted condition of the place where the crime was committed. Visibility is indeed a vital factor in the determination of whether an
eyewitness could have identified the perpetrator of a crime. We have consistently held that the illumination produced by kerosene lamp,
flashlight, wick lamps, moonlight, or starlight in proper situations is considered sufficient to allow identification of persons. In this case, the
light coming from the electric bulbs of nearby houses was sufficient to illumine the place where Escote was, and to enable the eyewitness
to identify him as the person who shot Carlos Dueñas. Settled is the rule that when conditions of visibility are favorable and the witnesses do
not appear to be biased, their assertion as to the identity of the malefactor should normally be accepted.14

Moreover, Escote failed to offer adequate proof that the prosecution witnesses held a grudge against him or that they had a score to
settle with him so as to give them motive to falsely testify against him. Where there is nothing to indicate that the witnesses for the
prosecution were actuated by improper motive, the presumption is that they were not so actuated and their testimonies are entitled to full
faith and credit.15

The alleged inconsistent statements of Liza de la Cruz in her sworn statement and testimony in open court are not relevant and material to
overturn the positive identification of Escote. Minor discrepancies or inconsistencies in the declarations or testimonies of a witness do not
affect, but even enhance, the witness’ credibility, for they remove any suspicion that the testimonies were contrived or rehearsed. What is
important is that the testimonies agree on the essential facts and substantially corroborate a consistent and coherent whole.16

Necessarily, the defenses of denial and alibi interposed by Escote must fail. We view them with disfavor for being unsubstantiated and
uncorroborated. Being negative and self-serving evidence, they cannot secure worthiness more than that placed upon the testimonies of
the prosecution witnesses who testified on clear and positive evidence17 and who positively identified Escote as the perpetrator of the
crime.18

Treachery was properly appreciated by the trial court. There is treachery when the offender commits any of the crimes against persons,
employing means, methods, or forms in the execution thereof which tend directly and especially to ensure the execution of the crime
without risk to himself arising from the defense which the offended party might make.19 The essence of treachery is that the attack is
deliberately without warning – done in a swift and unexpected manner, affording the hapless, unarmed, and unsuspecting victim no
chance to resist or to escape.20Carlos Dueñas was completely unarmed and totally unaware of what Escote wanted or planned to do. He
was suddenly shot by Escote, causing a gunshot wound which resulted to his death.

There being no other aggravating or mitigating circumstances alleged in the information and proved during the trial, 21 we sustain the
penalty imposed by the trial court, which is reclusion perpetua, the lower of the two indivisible penalties prescribed by law for murder. Other
circumstances like quasi-recidivism and the use of an unlicensed firearm were intimated in the records, but were not alleged in the
information. They cannot, therefore, affect the determination of the proper penalty to be imposed upon Escote.

As to the civil aspect of the case, the trial court awarded in favor of the victim’s heirs "the amounts of ₱50,000.oo as indemnity for [the
victim’s] death and ₱50,000.oo as indemnity ex delicto." Such an award is duplicitous. Article 2206 of the Civil Code authorizes an award of
civil indemnity for death caused by a crime, which current jurisprudence has set at ₱50,000. We, therefore, modify the decision by deleting
the other award of ₱50,000. However, an award of exemplary damages in the sum of ₱25,000 is warranted because of the presence of the
aggravating circumstance of treachery.22 Exemplary damages is awarded when the commission of the offense is attended by an
aggravating circumstance, whether ordinary or qualifying.23

WHEREFORE, in view of all the foregoing, judgment is hereby rendered AFFIRMING the 15 October 2001 Decision of the Regional Trial Court,
Malolos, Bulacan, Branch 78, in Criminal Case No. 193-M-2000, finding appellant Juan G. Escote guilty beyond reasonable doubt of the
crime of murder and sentencing him to suffer the penalty of reclusion perpetua with the MODIFICATION that he is ordered to indemnify the
heirs of the victim Carlo Dueñas ₱50,000 as death indemnity or civil indemnity ex delicto and ₱25,000 as exemplary damages.

SO ORDERED.

G.R. No. 143935 June 4, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
WILLIAM ANCHETA, EDGARDO AREOLA, ANTOS DACANAY, LITO DE LA CRUZ, FELIPE ULEP @ BOY ULEP AND ELY CALACALA, accused.
FELIPE ULEP @ BOY ULEP, appellant.

DECISION
CORONA, J.:

This is an appeal from the decision1 dated October 16, 1998 of the Regional Trial Court of Cabanatuan City, Branch 30, convicting the
appellant Felipe "Boy" Ulep of the crime of robbery with homicide and sentencing him to suffer the penalty of reclusion perpetua.

Appellant, together with William Ancheta, Edgardo "Liling" Areola, Antos Dacanay, Lito dela Cruz and Ely Calacala, was charged with the
crime of robbery with multiple homicide and frustrated murder in an Information dated November 2,1987:

That on or about the 20th day of March, 1987, at 12:00 o’clock to 1:00 o’clock in the afternoon, at Manggahan, Bicos, Rizal,
Nueva Ecija, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating
and helping one another, did then and there wilfully, unlawfully and feloniously, through force and intimidation upon persons,
take, rob and carry away thirty (30) cavans of clean palay valued at ₱4,500.00 belonging to Alfredo Roca, to his damage and
prejudice, and in order to successfully carry out the robbery, the above-named accused, pursuant to the same conspiracy,
wilfully, unlawfully and feloniously, with evident premeditation and with treachery, and with intent to kill, fired their guns at Marjune
Roca, which caused his death, shot at Benita Avendaño Roca and Febe Roca and hurled a grenade against them and both of
them died as consequence of the wounds they sustained; and also fired upon Alfredo Roca with their firearms, thus performing all
the acts of execution which would produce the crime of murder as a consequence but which, nevertheless, did not produce it by
reason of the timely running for cover by the said Alfredo Roca.

That in the commission of the crime, the generic aggravating circumstances of treachery, disregard of the respect due the
deceased Febe Roca and Benita Avendaño Roca on account of their age and sex and that the crime was committed by a
band.

ALL CONTRARY TO LAW.2

All of the accused remain at large to this day except for appellant who was arrested on January 5, 1990. He pleaded not guilty during
arraignment on January 25, 1990. In order to expedite the hearing of his case, appellant was granted a separate trial.

The prosecution presented Alfredo Roca, Virgilita Roca-Laureaga, Dr. Aurora Belsa and Emilio Roca as its witnesses. The prosecution
anchored its case principally on the testimony of Alfredo Roca who saw how appellant and his companions robbed them of 35 sacks
of palay after killing his son Marjun Roca, his wife Benita Roca and his mother Febe Roca.

Alfredo Roca testified that between 12:00 noon and 1:00 p.m. of March 20, 1987, he was in his farm in Manggahan, Rizal, Nueva Ecija to
thresh palay. With him at that time were Marjun Roca, Benita Roca, Febe Roca and daughter Virgilita Roca-Laureaga. He, Benita and Febe
were about to take their lunch inside his hut. Marjun and Virgilita were done eating and were standing outside. At this point, Alfredo
noticed the arrival of an owner-type jeep with trailer which stopped at a spot not far from his hut. He recognized the occupants as
accused Antos Dacanay, Edgardo "Liling" Areola, William Ancheta, Lito de la Cruz, Ely Calacala and appellant Felipe "Boy" Ulep who all
alighted from the jeep. Dacanay, Areola and Ancheta stood on one side of the irrigation canal facing Marjun Roca who was standing on
the other side. From a distance of 10 to 12 meters, Alfredo saw Dacanay suddenly pull out a gun and shoot Marjun on the head, causing
the latter to fall to the ground. As he lay on the ground, Marjun was again shot, this time by Areola and Ancheta. Thereafter, Ulep, de la
Cruz and Calacala started firing at Alfredo’s hut. Alfredo was not hit, however, because he was able to get out of the hut and dive into the
irrigation canal in the nick of time. However, Benita and Febe were fatally hit by the initial volley of gunfire. The assailants fired at Alfredo in
the canal but they did not hit him. Ancheta then hurled a grenade which exploded near the hut. When the group ran out of bullets,
Alfredo emerged from the canal and hid inside his hut. He saw the group load onto the trailer 35 sacks of palay, each containing an
average of 50 kilos valued at ₱4.50 per kilo. Alfredo owned the stolen palay. Appellant Ulep and his companions then boarded their jeep
and left.

Virgilita Roca-Laureaga corroborated the eyewitness account of her father Alfredo Roca. She declared that, from a distance of 10 meters,
she saw her brother Marjun fall to the ground after being shot by Dacanay. Following the grenade explosion, Areola aimed his gun at her
and pulled the trigger but the gun did not fire because he had apparently run out of bullets. She also saw appellant Ulep fire his gun at her
father’s hut.

Dr. Aurora Belsa, assistant provincial health officer of Rizal, Nueva Ecija, conducted the autopsy on the bodies of Marjun, Benita and Febe.
Her report showed that: (1) Marjun sustained gunshot wounds in the head, stomach and chest; (2) Benita suffered gunshot wounds that
punctured her small and large intestines and (3) Febe’s gunshot wounds in her chest damaged her lungs, heart and liver. Dr. Belsa
declared that all the gunshot wounds sustained by the victims were fatal, causing their immediate death.

Emilio Roca, 81 years old and husband of Febe Roca, testified on the civil aspect of the case. He stated that, as a result of the death of
Febe, Marjun and Benita, the family incurred expenses for the wake and funeral in the amount of ₱85,000. Likewise, the death of his wife,
sister-in-law and grandson caused him to suffer a fit of depression. He lived in fear and was forced to sell his house. He transferred residence
because the perpetrators might return to kill him.

The defense had a different story.

Appellant Ulep, a cogon-gatherer in the farm of Edgardo Areola, alleged that at around 10:30 a.m. on March 20, 1987, he went to Areola’s
farm to check whether the palay crops had adequate water. The farm was located just beside Alfredo Roca’s. When he saw that the
crops were almost withered, appellant diverted the flow of water from Alfredo’s farm to that of Areola’s. While he was beside the irrigation
ditch, he noticed 10 male strangers in the vicinity of Alfredo’s hut. He saw Alfredo attempting to throw a grenade at the other side of the
canal but two women prevented him from doing so by embracing him. As a result of the struggle, Alfredo dropped the grenade.
Whereupon Alfredo immediately jumped into the irrigation canal to take cover. The grenade then exploded. He never saw his co-accused
in the vicinity nor did he hear any gunshots. After witnessing these events, appellant walked away and continued irrigating Areola’s farm.

At about 1:00 p.m., he had lunch in the house of his in-laws in Bicos, Rizal, Nueva Ecija and returned to the farm at 2:00 p.m. He worked until
5:00 p.m. and spent the night in the house of his in-laws. The next morning, he went home to Villa Paraiso, Rizal, Nueva Ecija.

Federico Catalan, appellant’s neighbor and a barangay captain, testified that at around 11:00 a.m. on March 20, 1987, he went to his
farm which was about 100 meters away from Edgardo Areola’s farm. Between 12:00 noon and 12:30 p.m., he saw appellant walking
towards the irrigation canal and joined him to go there. At 1:00 p.m., they both went home to eat lunch and later returned to continue
irrigating their farms up to 5:00 p.m. After work, they proceeded home to Villa Paraiso. He also testified that the wife of appellant was his
niece. On cross-examination, he declared that he heard a gunshot at around 1:00 p.m.

On October 16, 1998, the trial court found appellant guilty beyond reasonable doubt of the crime of robbery with homicide. The dispositive
portion of the decision read:

WHEREFORE, in view of the foregoing consideration and finding that the accused, FELIPE ULEP, is guilty of the special complex
crime of ROBBERY WITH HOMICIDE, he is hereby sentenced to suffer imprisonment of RECLUSION PERPETUA; to indemnify the heirs
of Marjun Roca, Benita Avendaño-Roca and Febe Roca ₱50,000.00 each for their deaths; to pay the sum of ₱50,000.00 for
expenses incurred for the burial of Marjun Roca and Benita Avedaño-Roca; to pay the sum of ₱50,000.00 to Emilio Roca for burial
expenses incurred; and to pay the heirs of Marjun Roca, Benita Avendaño-Roca and Febe Roca, ₱50,000.00 each by way of
moral damages; to pay Alfredo Roca the sum of ₱7,877.00 for the 35 cavans of palay taken on the occasion of the robbery; and
to pay the cost of this suit.

SO ORDERED.3

Thus, the instant appeal based on the following assignments of error:

THE COURT A QUO GRAVELY ERRED IN ADMITTING AND GIVING WEIGHT AND CREDENCE TO THE TESTIMONY OF THE PROSECUTION
WITNESSES DESPITE THE FAILURE OF THE PROSECUTION TO MAKE A FORMAL OFFER BEFORE THEY (WITNESSES) TESTIFIED.

II

THE COURT A QUO ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANT FOR THE CRIME CHARGED HAS BEEN PROVEN
BEYOND REASONABLE DOUBT.

III

THE COURT A QUO ERRED IN DISREGARDING THE EVIDENCE ADDUCED BY THE DEFENSE.4

In the first assignment of error, appellant alleges that the trial court erred in admitting as evidence the testimonies of the prosecution
witnesses despite the failure of the prosecution to make a formal offer thereof in violation of Rule 132, Section 34 of the Rules of Court:

Sec. 34. Offer of Evidence ― The Court shall consider no evidence which has not been formally offered. xxx.

Corollarily, Section 35 of the same Rule 132 states that:

Sec. 35. When to make offer. ― As regards the testimony of a witness, the offer must be made at the time the witness is called to
testify.

This formal offer of testimonial evidence is necessary in order to enable the court to rule intelligently on any objections to the
questions asked. As a general rule, the proponent must show its relevance, materiality and competence. Where the proponent
offers evidence deemed by counsel of the adverse party to be inadmissible for any reason, the latter has the right to object. But
such right can be waived. Necessarily, the objection must be made at the earliest possible time lest silence, when there is an
opportunity to speak, operates as a waiver of the objection.5

The records show that the prosecution failed to formally offer the questioned testimonies of witnesses Alfredo Roca and Virgilita Roca-
Laureaga. However, appellant waived this procedural error by failing to make a timely objection, i.e., when the ground for objection
became reasonably apparent the moment said witnesses were called to testify without any prior offer having been made by the
proponent. He even impliedly acquiesced to the materiality, competence and relevance of the prosecution witnesses’ testimonies by
cross-examining them. Since appellant failed to raise before the trial court the issue of the prosecution’s failure to formally offer the
testimonies of its witnesses, an objection on this score raised for the first time on appeal will not be entertained.
The second and third assignments of error, being interrelated, shall be discussed jointly.

Appellant assails the testimonies of prosecution witnesses, Alfredo and Virgilita, for being unbelievable and contrary to human nature.
According to appellant, the natural tendency of a person being fired at is to take cover. Thus, it was inconceivable for Alfredo to still
attempt to take a look at his assailants as he was at risk of being shot and killed. Besides, he could not have witnessed the killing of Marjun if
he himself was being attacked at the same time.

It is apparent that appellant’s defense rests mainly on the credibility of the prosecution witnesses. It is settled, however, that, when the issue
of credibility of a witness is involved, the appellate courts will generally not disturb the findings of the trial court, considering that the latter
was in a better position to resolve the matter, having heard the witness and observed his deportment during trial, unless certain facts of
value were plainly ignored, which if considered might affect the result of the case.6

We find the trial court’s evaluation of the facts and its conclusions fully supported by the evidence. Alfredo and Virgilita were
straightforward and categorical in their narration of how appellant and his cohorts killed Marjun, Febe and Benita, and thereafter took 35
cavans of palay from their farm. Despite the grueling cross-examination, they never wavered in their testimonies regarding the details of the
crime.

What made their testimonies even more credible was the fact that both Alfredo and Virgilita had no ill-motive to testify against appellant
and his co-accused. It has been our consistent ruling that a witness’ testimony deserves full faith and credit where there exists no evidence
to show any improper motive why he should testify falsely against the accused, or why he should implicate the accused in a serious
offense.7 Further, the relationship of Alfredo and Virgilita to the victims all the more bolstered their credibility as they naturally wanted the
real culprits to be punished. It would be unnatural for the relatives of the victims in search of justice to impute the crime to innocent persons
and not those who were actually responsible therefor.

Appellant also points out the glaring inconsistencies in the testimonies of Alfredo and Virgilita. Appellant cites the testimony of Virgilita that
the assailants waited for about five minutes after they stopped firing at Marjun before they started shooting at her father Alfredo. This,
according to appellant, contradicted Alfredo’s testimony that the perpetrators started firing at him immediately after Marjun was killed.
Likewise, while Virgilita declared that Ancheta threw the grenade before her father jumped into the irrigation canal, Alfredo testified that
Ancheta threw the grenade when he was already in the canal. Appellant insists that these inconsistencies tainted the credibility of both
Alfredo and Virgilita.

The alleged discrepancies in the testimonies of Alfredo and Virgilita referred only to minor matters. There was no inconsistency as far as the
principal occurrence and the positive identification of the assailants were concerned. Both Alfredo and Virgilita positively identified
appellant’s group as the persons who attacked and robbed them. The court a quo correctly cited the case of People vs. Fabros8 where we
held that:

Inconsistencies among witnesses testifying on the same incident may be expected because different persons may have different
impressions or recollections of the same incident. One may remember a detail more clearly than another. Witnesses may have
seen that same detail from different angles or viewpoints. That same detail may be minimized by one but considered important
by another. Nevertheless, these disparities do not necessarily taint the witnesses’ credibility as long as their separate versions are
substantially similar or agree on the material points. Thus, although it may be conceded that there are some variations in the
separate testimonies xxx, these do not, in our view, detract from the integrity of their declarations. On the contrary, they represent
a believable narration, made more so precisely because of their imperfections, of what actually happened. xxx

Moreover, the testimonies of Alfredo and Virgilita were supported by the medical findings of Dr. Belsa. The presence of gunshot
wounds in the bodies of the victims materially corroborated the prosecution witnesses’ testimonies that appellant and his co-
accused repeatedly fired their guns at their hapless victims.

Appellant also interposes the defense of alibi. The time-tested rule is that alibi cannot prevail over the positive assertions of prosecution
witnesses9, more so in this case where appellant failed to prove that he was at another place at the time of the commission of the crime
and that it was physically impossible for him to be at the crime scene. Appellant’s claim that he was in Edgardo Areola’s farm from 10:30
a.m. to 5:00 p.m. did not negate the possibility that he had gone to Alfredo’s farm between 10:30 a.m. and 5:00 p.m. to commit the crime,
considering the fact that Areola’s farm was just beside Alfredo’s farm, the scene of the crime.

It was, on the contrary, appellant’s alibi that was considerably weakened by the major inconsistencies between his and Federico Catalan’s
supposedly corroborating testimony. While appellant testified that he did not hear any gunshot the entire day on March 20, 1987, Catalan
contradicted this by attesting that he heard a gunshot at about 1:00 p.m. Likewise, appellant claimed that after working in the farm, he
proceeded to the house of his in-laws in Bicos and only went home to Villa Paraiso the next day Catalan, on the other hand, stated that
after work that same day, they went home to Villa Paraiso together.

Appellant also contends that the prosecution failed to prove the special complex crime of robbery with homicide. He insists that there was
no showing that the perpetrators killed the victims in order to steal the palay.

There is robbery with homicide when there is a direct relation or an intimate connection between the robbery and the killing, whether the
killing takes place prior or subsequent to the robbery or whether both crimes are committed at the same time.10
Based on the facts established, the Court is convinced that the prosecution adequately proved the direct relation between the robbery
and the killing. Immediately after shooting the victims, the assailants loaded the sacks of palayonto the trailer of the jeep. As they did so, no
conversation took place and there was no hesitation on their part, indicating that they were proceeding from a common, preconceived
plan. In fact, why would they bring a trailer if their only purpose was to massacre the Roca family? The series of overt acts executed by
appellant and his companions, in their totality, showed that their intention was not only to kill but to rob as well. The group tried to kill all the
members of the Roca family to ensure lack of resistance to their plan to take Alfredo’s palay. Whenever homicide is perpetrated with the
sole purpose of removing opposition to the robbery or suppressing evidence thereof, the crime committed is robbery with homicide.11

Further, in order to sustain a conviction for robbery with homicide, robbery must be proven as conclusively as the killing itself.12 A review of
the entire records of this case leads us to conclude that robbery was established beyond reasonable doubt. As long as the killing is
perpetrated as a consequence or on the occasion of the robbery, the special complex crime of robbery with homicide is committed.

Of the aggravating circumstances alleged in the information,13 only treachery and band were established.

There was treachery as the events narrated by the eyewitnesses pointed to the fact that the victims could not have possibly been aware
that they would be attacked by appellant and his companions. There was no opportunity for the victims to defend themselves as the
assailants, suddenly and without provocation, almost simultaneously fired their guns at them. The essence of treachery is the sudden and
unexpected attack without the slightest provocation on the part of the person attacked.14

We deem it necessary to reiterate the principle laid down by the Court en banc in the case of People vs. Escote, Jr.15 on the issue of
whether treachery may be appreciated in robbery with homicide which is classified as a crime against property. This Court held:

xxx (t)reachery is a generic aggravating circumstance to robbery with homicide although said crime is classified as a crime
against property and a single and indivisible crime. xxx

xxx xxx xxx

xxx xxx xxx

xxx xxx xxx

In fine, in the application of treachery as a generic aggravating circumstance to robbery with homicide, the law looks at the
constituent crime of homicide which is a crime against persons and not at the constituent crime of robbery which is a crime
against property. Treachery is applied to the constituent crime of "homicide" and not to the constituent crime of "robbery" of the
special complex crime of robbery with homicide.

The crime of robbery with homicide does not lose its classification as a crime against property or as a special complex and single
and indivisible crime simply because treachery is appreciated as a generic aggravating circumstance. Treachery merely
increases the penalty for the crime conformably with Article 63 of the Revised Penal Code absent any generic mitigating
circumstance.

xxx xxx xxx

xxx xxx xxx

xxx xxx xxx

In sum then, treachery is a generic aggravating circumstance in robbery with homicide when the victim of homicide is killed by
treachery.

The offense was also proven to have been executed by a band. A crime is committed by a band when at least four armed malefactors
act together in the commission thereof. In this case, all six accused were armed with guns which they used on their victims. Clearly, all the
armed assailants, including appellant, took direct part in the execution of the robbery with homicide.

Under Article 294 (1) of the Revised Penal Code, the crime of robbery with homicide carries the penalty of reclusion perpetua to death.
Inasmuch as the crime was committed on March 20, 1987 which was prior to the effectivity of RA 7659 on December 31, 1993, the penalty
of death cannot be imposed even if the aggravating circumstances of treachery and band attended its commission. Only the single
indivisible penalty of reclusion perpetua is imposable on appellant.

With respect to damages, we affirm the award of ₱50,000 as civil indemnity each for the death of Marjun, Febe and Benita Roca. In
addition, moral damages must be granted in the amount of ₱50,000 for each of the deceased victims. The amount of ₱7,875 is also due to
Alfredo Roca as reparation for the 35 sacks of palay stolen from him, each valued at ₱225. The heirs of the victims are likewise entitled to
exemplary damages in the sum of ₱20,000 for each of the three victims due to the aggravating circumstances that attended the
commission of the crime. However, the award of burial expenses cannot be sustained because no receipts were presented to substantiate
the same. Nonetheless, the victims’ heirs are entitled to the sum of ₱25,000 as temperate damages in lieu of actual damages, pursuant to
the case of People vs. Abrazaldo.16
WHEREFORE, the decision of the Regional Trial Court of Cabanatuan City, Branch 30, convicting appellant Felipe "Boy" Ulep of the crime of
robbery with homicide and sentencing him to suffer the penalty of reclusion perpetua is hereby AFFIRMED with MODIFICATION. Appellant is
also ordered to pay the heirs of the victims: (1) ₱50,000 as civil indemnity for each of the three victims; (2) ₱50,000 as moral damages for
each of the three victims; (3) ₱7,875 as reparation for the 35 stolen sacks of palay; (4) ₱20,000 as exemplary damages for each of the three
victims and (5) ₱25,000 as temperate damages.

SO ORDERED.

G.R. No. L-36941 June 29, 1984

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RAFAEL SAYLAN alias PAEL, accused-appellant.

The Solicitor General for plaintiff-appellee.

Federico Y. Alikpala, Jr., for accused-appellant.

ABAD SANTOS, J.:

This is an automatic review of the decision of the defunct Court of First Instance of Misamis Oriental in Criminal Case No. 52-M which
imposed the death penalty.

RAFAEL SAYLAN was accused of the crime of rape in the sworn complaint of Eutropia Agno said to have been committed as follows:

That on or about the 23rd day of January, 1972, at more or less 7:00 o'clock in the evening, at Sitio Craser, Malinao, Jingo
City, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, with deliberate intent to
have sexual intercourse, did then and there wilfully, unlawfully and criminally with the use of a dagger, force and
intimidate Eutropia Agno y Arcay, to remove her pantie and to lay down on the ground and with the use of a dagger,
force and intimidation succeeded in having sexual intercourse with Eutropia Agno y Arcay, a woman of good
reputation and against her will. That the commission of the foregoing offense was attended by the aggravating
circumstances of: abuse of superior strength, nighttime, uninhabited place, ignominy and reiteracion. (Expediente, p.
27.)

The accused entered a plea of "not guilty" and after trial the court rendered the following judgment:

WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of the crime of rape, penalized under Article
335 of the Revised Penal Code as amended by Republic Act No. 4111, and the commission of the offense having been
attended by three aggravating without any mitigating circumstance, hereby sentences him to suffer the supreme
penalty of death, to indemnify the offended party in the amount of Six Thousand Pesos (P6,000.00), and to pay the costs.
In view of the fact that the offended party is a married woman, aside from the fact that she has not become pregnant
as a result of the commission of the rape, the Court makes no pronouncement as to acknowledgment and support of
offspring. (Id., p. 64.)

The factual version of the prosecution is summarized in the People's brief as follows:

The complaining witness, Eutropia A. Agno, a married woman and a resident of Barrio Malinao, Gingoog City, was a
classroom teacher of the Malinao Elementary School (pp. 2, 3, tsn., Feb. 22, 1973).

In the afternoon of January 23, 1971, Eutropia went to the public market in Gingoog City to buy foodstuffs for her family
and thereafter, she proceeded to the store of her mother to fetch her five-year old daughter Nilsonita (p. 4, tsn., Id.). On
their way home, Eutropia and Nilsonita boarded a passenger jeepney and while inside the vehicle she (Eutropia)
noticed that the other passengers were Rudy Gonzales, a grade I pupil of the Malinao Elementary School, the appellant,
Rafael Saylan, and a couple whom she did not know (pp, 5, 6, tsn., Id.). The jeepney went only as far as Malinas citrus
farm because the road to Barrio Malinao was not passable by vehicles (p. 5, tsn., Id.). It was almost 6:30 o'clock in the
evening when the jeepney arrived at the Malinas citrus farm and so all the passengers alighted and had to walk all the
way to Barrio Malinao which was about three and a half kilometers away (p. 5, tsn., Id.). After walking some distance
and upon reaching a junction, the couple separated from the group and took the road leading to their house while
Eutropia's group took the opposite road (p. 9, tsn., Id.).lwphl@itç The appellant, however, joined the group of Eutropia
and when they reached the place where the road was plain, appellant who was then walking side by side with Eutropia
suddenly pulled out a dagger about eight inches long and pointing it at the latter said, "Do not shout, Nang, I will kill
you!" (pp. 11, 12, tsn., Id.). At this juncture, appellant placed his right arm around the neck of Eutropia with the dagger
pointed at her left breast (p. 12, tsn., Id.), after which he dragged Eutropia at some distance. When they reached the
junction of the trail for men and a trail for carabaos, he ordered everybody to stop and told the children (Nilsonita and
Rudy Gonzales) to stay behind and threatened to kill them if they persisted in following them (pp. 17, 18, tsn., Id.).
Thereafter, appellant again dragged Eutropia by her hand and brought her towards a creek near a coconut tree which
was about five meters away from where Nilsonita and Rudy Gonzales were (pp. 14, 15, 16, tsn., Id.).lwphl@itç The
appellant then ordered Eutropia to remove her panty which she refused at first, but appellant threatened to kill her, so
she removed her panty after which appellant ordered her to lie down (pp. 18, 19, tsn., Id.). Subsequently, appellant
placed himself on top of the victim and inserted his penis into her vagina and succeeded in having sexual intercourse
with her by moving his buttocks up and down (pp. 20,21, tsn., Id.).

After the first sexual act, appellant ordered Eutropia to standup which the latter helplessly and grudgingly followed (p.
23, tsn., Id.). Appellant again inserted his penis into her vagina and then performed a push and puli movement (pp. 23,
24, 25, tsn., Id.). Not satisfied with the second intercourse, appellant ordered Eutropia to lie down again preparatory to a
third intercourse (p. 26, tsn., Id.). Appellant again performed the sexual act with her (pp. 26, 27, tsn., Id.).

After the third intercourse, appellant ordered Eutropia to stand up and then he bent her body downwards with her
hands and knees resting on the ground (p. 28, tsn., Id.). When the latter was already in this position, appellant then
placed himself behind her, inserted his penis into her vagina and executed a push and puli movement in the dog's way
of sexual intercourse (pp. 27, 28, tsn., Id.)

After performing this uncommon way of sexual intercourse, appellant ordered Eutropia to he down again which the
latter reluctantly obeyed because appellant's dagger was always pointed at her and thereafter he had carnal
knowledge of her for the fifth time (pp. 29, 30, tsn., Id.).

After the fifth intercourse, and after satisfying his sexual lust, appellant asked Eutropia if she will tell her husband what he
did to her and the latter answered, "I will not tell" (p. 31, tsn., Id.). But she only said this so that appellant would let her go
home (p. 33, tsn., Id.).

Afterwards, Eutropia and appellant returned to the place where the children were left and upon arriving thereat, they
found Nilsonita (Eutropia's daughter) asleep with Rudy seated dozing beside her (pp. 32, 33, tsn., Id.). Nilsonita who was
sleeping was carried by the appellant and then they all proceeded to Malinao (pp. 33, 34, tsn., Id.).

After walking some distance, Eutropia saw the house of her friend "Ben" and upon approaching the said house, she
shouted, "Ben, Ben, please give me hot water" (p. 34, tsn., Id.). Upon hearing her voice, Ben, who was still awake at the
time, opened the door of his house and allowed Eutropia to come up (p. 34, tsn., Id.). Eutropia immediately went upstairs
and went straight to the room of Ben as she was feeling very bad (p. 34, tsn., Id.). Appellant, who was then carrying
Nilsonita and Rudy Gonzales, were also allowed to go upstairs (p. 35, tsn., Id.). Meanwhile, Eutropia requested Ben to
fetch her husband (p. 35, tsn., Id.).

When Eutropia woke up between 9:00 and 10:00 o'clock that evening, her husband was already there (p. 36, tsn., Id.).
She then asked him whether the appellant was stin around, and in reply, he told her that appellant had already left (p.
37, tsn., Id.). Eutropia then told her husband that she was raped by the appellant (p. 37, tsn., Id.). Upon learning of the
dastardly act committed by the appellant, he advised his wife to submit herself to a medical examination (p. 37,
tsn., Id.).

The following morning, the offended party was brought to the office of the City Health Department of Gingoog City
where she was examined by Dr. Ireneo O. Pascual who after conducting a thorough physical examination, issued a
medical certificate with the following findings, to wit:

(1) Multiparous.

(2) Presence of viscid whitish secretions at vaginal fornix

(3) Microscopic examination of secretions reveals epithelial cells, but no spermatozoa Identified.

(pp. 10, 11, 12, t.s.n., Feb. 24, 1973; Exh. "A").

Rudy Gonzales, a grade I pupil of the Malinao Elementary School and one of the witnesses for the prosecution, testified
that he met Mrs. Eutropia Agno in the afternoon of January 23, 1972 at the public market of Gingoog City buying
foodstuffs for her family (pp. 2, 3, tsn., Feb. 26, 1973). On their way back to Barrio Malinao, they boarded a passenger
jeepney and while he was inside the vehicle, he noticed that the other passengers aside from Mrs. Agno, her daughter,
and himself were the appellant and a couple whose names he did not know ( p. 4, tsn., Id.). The jeepney, however,
could only travel up to the Marinas Citrus farm and so they had to walk all the way to Barrio Malinao (p. 4, tsn., Id.) After
was some distance and upon reaching a trail for carabaos, the appellant suddenly pulled a dagger and placed his
arms around the neck of Mrs. Agno and then dragged her towards the carabao trail (pp. 4, 5, tsn., Id.). Meanwhile, he
and Nilsonita were left behind and they fell asleep because it took a long time for the appellant and Mrs. Agno to come
back for them (p. 5, tsn., Id.). When Mrs. Agno and the appellant returned, he was already awake while Nilsonita was still
asleep and so appellant had to carry her in going home to Man (p. 6, tsn., Id.).lwphl@itç After was some distance, Mrs.
Agno saw the house of Mang Ben and because she was feeling bad, they all went to the house of Mang Ben where Mrs.
 Agno spent the night (p. 7, tsn., Id.). Afterwards, he and the appellant left the house of Mang Ben and then they
proceeded to his house at Malinao where both of them slept (pp. 7, 21, tsn., Id.). (At pp. 2-8.)

The accused did not deny having had sexual intercourse with Mrs. Agno; in fact he admitted that he copulated with her for three
successive times in the early evening of January 23, 1972, but he claimed that it was with her consent. Accordingly, he now claims that:

I. THE COURT A QUO ERRED IN FINDING THAT THE SEXUAL INTERCOURSE HAD BEEN COMMITTED AGAINST THE WILL AND
CONSENT OF THE COMPLAINANT.

II. THE COURT A QUO ERRED IN FINDING THAT AGGRAVATING CIRCUMSTANCES HAD ACCOMPANIED THE COMMISSION
OF THE OFFENSE. (Brief, p. 5.)

The appeal must fail for the reasons stated hereunder.

This is a typical rape case. Only the participants could directly testify on the alleged sexual abuse and the accused alleges consent on the
part of the complainant. The question of credibility arises and under the circumstances We have to rely heavily on the determination made
by the trial judge who observed the demeanor of the witnesses while before Us is only the cold transcript of what they said.

We accept the conclusions and findings of fact of the trial court that the complainant was in fact raped by the appellant. There is no fact
or circumstance in the record which will justify a different action.

The claim of the appellant that the sexual intercourse was mutually agreed is utterly incredible. If it were true that Mrs. Agno consented to
have coitus with the appellant, her conduct thereafter defies understanding because it is contrary to reason and it has not been shown
that Mrs. Agno, a school teacher, was bereft of common sense. For if it was true that the sexual act was indeed mutually desired and
performed why did she complain not only to her husband but also to the authorities? An affair such as that claimed by the appellant is
carried out in a discreet manier. On the other hand, the version of the complainant has indicia of credibility. For her version bared her
shame to a small community and her exposure was necessary only because she had to reveal the truth. No, We simply cannot believe the
appellant's version.

We have said above that the findings and conclusions of the trial court are entitled to great respect. In finding the appellant guilty, this is
what the court a quo said in part:

The testimony of the accused is incredible. When he told his love to the offended party for the first time, they were only
two in the latter's house. He had more time with her then. She refuse him because she is married. He tried for the second
time. He was again refused because she is married. It is unthinkable and highly improbable that on the evening of
January 23, 1972, after only three minutes, the offended party would rush to accept his love and go to the extent of
thanking him for his considering her daughter as his own, unless she was coerced, threatened, forced and intimidated.

It is highly improbable for a school teacher with several children to exchange her husband only 40 years old and with a
good means of livelihood for one whom she does not know and whom she has observed as doing nothing except to
play basketball. It is subversive of the traits, character and nature of Filipino women to say that the offended party, a
school teacher and a girl scout accepted the love of a man who is good for nothing and surrendered her whole body
and virtue to him after an accidental courtship of only three minutes. The offended party is an unsophisticated and
conservative woman, fixing her hair the old fashion way. She does not apply make-up on her face, and her dress is up to
her knees. This makes the pretensions of the accused all the more incredible. (Expediente, p. 59.)

The complaint alleges the following aggravating circumstances: abuse of superior strength, nocturnity, despoblado,ignominy,
and reiteracion.

The trial court disregarded superiority because it "is inherent in the crime of rape or is absorbed in the element of force." It also did not
consider nocturnity "there being no evidence that the accused purposely sought it to facilitate the commission of this rape." (Id, p. 63.)

Despoblado was present according to the trial court because: "The accused dragged the offended party, at the point of a dagger, to the
carabao trail, about 10 meters from the junction, but 40 to 50 meters below to better attain his purpose without interference, and to better
secure himself from detection and punishment (U.S. vs. Vitug, 17 Phil. 1). Even the junction where the two children were left is already 400
meters from the nearest house. While there maybe occasional passersby, this does not destroy its being an uninhabited place. (People vs.
Bangug, 52 Phil. 87)." (Id, p. 62.) We hold that the trial court for the reasons stated correctly held that the crime was committed in an
uninhabited place.

The trial court held that there was ignominy because the appellant used not only the missionary position, i.e. male supenor female inferior,
but also "The same position as dogs do" i.e., entry from behind. The appellant claims there was no ignominy because "The studies of many
experts in the matter have shown that this 'position' is not novel and has repeatedly and often been resorted to by couples in the act of
copulation. (Brief, p. 24.) This may well be if the sexual act is performed by consenting partners but not otherwise.
The trial court also held that "there is no reiteracion because one of the offenses, namely Robbery in Band, for which the accused has been
penal was committed after the commission of this rape case, and the penalty imposed on the other offense of Frustrated Homicide, is
lighter than the penalty for rape." (Id, P. 63.)

Although not alleged in the complaint, the trial court stated that the offense was aggravated by disregard of rank because it was a fact
knowm to the appellant that Mrs. Agno was a school teacher. The appellant claims that this circumstance cannot be assigned to him
because there was no deliberate intent to offend or insult the rank of Mrs. Agno. The Solicitor General agrees with the appellant for the
same reason.

The judgment of the trial court is in accordance with the facts and the law but it cannot be affirmed completely because of the lack of the
necessary number of votes.

WHEREFORE, the judgment under review is modified in the sense that the appellant shall suffer the penalty ofreclusion perpetua instead of
death and the indemnity to be paid to the offended party is increased to P20,000.00. Costs against the appellant.

SO ORDERED.

G.R. No. 134815 May 27, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
EDUARDO DE JESUS y ENRILE, appellant.

DECISION

PER CURIAM:

This is an automatic review of the Decision1 of the Regional Trial Court of Makati, Branch 64, convicting the appellant of robbery with
homicide and sentencing him to suffer the death penalty.

The Case for the Prosecution

SPO3 Eugenio Ybasco was a policeman assigned to the Makati Police Station, Substation Block No. 6 since March 16, 1973. 3 After his tour of
duty, he worked on the sly for a money changer in the vicinity of the Intercontinental Hotel and the Rustan’s Supermarket in Makati City. He
delivered money for his employer every afternoon. The money was placed in a plastic bag3 and he used a bicycle for this extra
job.4 Everytime Ybasco delivered money to his employer, he passed by Yolanda dela Rapa who was selling cigarettes in the vicinity of the
Rustan’s Supermarket and the Kimpura Restaurant, Ayala Center, Makati City.5 Ybasco was a familiar face among the other cigarette
vendors in the area, namely, Lydia, Gina, Jing and Romy.6 Dela Rapa called him "Sir Ybasco."7

Sometime in February 1994, Dante Manansala, a native of Barangay Canlubang, Calamba, Laguna,8 appellant Eduardo de Jesus, a native
of Barangay Tabuyok, Apalit, Pampanga,9 and Crispin Del Rosario, the appellant’s brother-in-law10 and a native of Barangay Tadloc, Los
Baños, Laguna,11 agreed to stage a robbery in the afternoon of March 7, 1994. On February 15, 1994, the appellant told Del Rosario of the
planned robbery.12 Del Rosario was told that the financier for the heist was Christopher Nash, a British national residing in the
Philippines.13 The appellant knew that Ybasco was to deposit US$250,000 in the bank every afternoon for his employer. They decided to
waylay Ybasco on his way to the bank.

At 8:00 a.m. on March 7, 1994, upon Nash’s instructions, Del Rosario and the appellant took a Toyota Corolla car with Plate No. TAX 732
from Rolando Fajardo in Tanauan, Batangas. The car was owned by Nash.14 While the appellant, Del Rosario and Manansala were on
board the car, their confederate, Tonton, had lunch somewhere in Batangas. The group arrived in the vicinity of the parking lot at the
Ayala Center near the Rustan’s Supermarket and the Kimpura Restaurant on board the same car.15 The appellant was armed with a
caliber .45 handgun.16Manansala, the appellant and Del Rosario alighted, and conducted a surveillance of the area. Tonton remained in
the car. Manansala instructed Del Rosario to position himself as a lookout at the corner of the Rustan’s Supermarket, and for the appellant
to position himself within the vicinity.17 Manansala waited Ybasco near the office of the money changer. Dela Rapa, who was then vending
cigarettes, was about five arm’s length away from the car.18

At around 6:30 p.m., Ybasco emerged from the office of his employer holding a plastic bag. Manansala contacted Del Rosario and told
him that Ybasco was on his way out. He reminded Del Rosario to be on the lookout for anybody who might rush to the succor of Ybasco,
while the appellant would take care of Ybasco. Momentarily, Manansala and the appellant confronted Ybasco and told him, "May
warrant of arrest ka." They grabbed Ybasco, handcuffed him and dragged him to the car.19 Manansala and the appellant had a scuffle
with Ybasco when they grabbed the plastic bag from him.20 Roberto Acosta, a roving security guard, saw the incident and pulled out his
.38 caliber gun with Serial No. 172410. On board his motorbike, he sped towards the scene to investigate the incident. Del Rosario
confronted Acosta and grappled with him for the possession of the gun.21 As Del Rosario managed to wrest possession of the gun from
Acosta, Manansala ordered Del Rosario to shoot. Del Rosario did as he was told, and shot Acosta in the mouth. They boarded the car, and
sped towards EDSA.22 Dela Rapa was shocked at the sudden turn of events.23 So was Juanito Mendoza, who had just stepped out from the
Rustan’s Supermarket and saw the shooting incident.24
Wilfredo Delia, another security guard at the Ayala Center, rushed to Acosta’s aid and brought him to the Makati Medical Center. Acosta
expired at about 10:10 p.m.25

Meanwhile, the Toyota Corolla sped towards the direction of Cabuyao, Laguna. Manansala said that they would have no problem
because the mayor was his ninong.26 However, when he looked inside Ybasco’s bag and found that it only contained ₱5,000 instead of the
expected US$250,000, he was enraged. Manansala hit Ybasco on the nape and uttered invectives at the latter. Ybasco explained, "Eh
wala naman akong idinedeliber mga anak na ganyan kalaking pera." Manansala took the ₱5,000 from Ybasco.27

Ybasco was transported to a sugar farm at Barangay Pulo, Cabuyao, Laguna. Manansala and the appellant took him out of the car and
told him that he would be allowed to board a tricycle. The appellant warned Ybasco not to follow them, as he, (the appellant) was a
member of the New People’s Army. Believing that Ybasco would be freed, Del Rosario took ₱80 from the latter’s wallet, but returned ₱50 to
him for his fare.28

The appellant suddenly shot Ybasco on the head. The latter fell to the ground with his hands still handcuffed. 29Manansala, the appellant
and Del Rosario proceeded to Calamba, Laguna, where Del Rosario alighted after receiving ₱100 from the appellant for his fare.30 The
appellant explained that the remaining ₱4,900 would be used for the repair of the car.

In the meantime, police operatives from the Makati Police Station, including SPO4 Tomas Sipin and SPO1 Ramoncito Ocampo, arrived at
the Ayala Center to conduct an on-the-spot investigation of the killing of Acosta and Ybasco’s abduction.31 When Dela Rapa informed the
policemen that she witnessed the incident, she was brought to the police station where she gave a sworn statement.32 At 8:10 p.m., Juanito
Mendoza arrived at the Makati Police Station and gave a sworn statement where he indicated that he witnessed the shooting incident
and saw the get-away car, a Toyota Corolla with Plate No. TAX 732. He also gave a physical description of Acosta’s assailant.33

At 6:20 a.m. of March 8, 1994, Sofronio Entridicho was at his sugar field and saw the cadaver of Ybasco whose hands were still
handcuffed.34 Entridicho reported what he saw to the Cabuyao Police Station.35 SPO2 Reynaldo Arcibal of the Cabuyao Police Station
reported the finding to the Makati Police Station which dispatched a team of police investigators to Barangay Pulo, Cabuyao, Laguna. The
policemen found Ybasco’s body and an empty shell from a .45 caliber pistol.36

In the meantime, the policemen were able to ascertain that the Toyota Corolla car with Plate No. TAX 732 belonged to Cecilia Tan and her
husband Christopher Nash, and that the latter gave the car keys to Rolando Fajardo for car repairs, with instructions to turn it over later to
Del Rosario and the appellant.37 On March 9 and 10, 1994, Rolando Fajardo gave sworn statements38 to the Makati Police Operatives
where he stated that at 8:00 a.m. of March 7, 1994, he turned over the car to the appellant and the latter’s brother-in-law, Del Rosario.
Fajardo also stated that at 9:00 a.m. of March 8, 1994, Manansala told him how Ybasco was abducted and brought to Cabuyao, Laguna,
where he was shot by the appellant.

On March 9, 1994, police operatives arrested Del Rosario at his residence in Barangay Tadloc, Los Baños, Laguna.39 Del Rosario tried to
shoot it out with the policemen using Acosta’s service pistol, a .38 caliber revolver which had six live ammunitions, bearing serial number
172410.40 The gun was turned over to SPO2 Marlon Binotapa at the homicide section of the Makati police department.41 On the same day,
Manansala was arrested at his residence in Barangay Canlubang, Laguna.

On March 12, 1994, Manansala, with the assistance of his counsel, Atty. Sofronio Untalan, Jr., executed an extrajudicial confession in which
he narrated how he, the appellant, Del Rosario and Nash, planned to rob Ybasco of the cash he was carrying, including the details of the
abduction and the killing.42 The policemen attempted to arrest the appellant at his residence, but the latter was nowhere to be found. The
appellant remained at large.43

Tanauan Police Operatives found the white Toyota Corolla with Plate No. TAX 732 in Tanauan, Batangas. 44 The car was turned over to SPO2
Romeo Urbino of the Makati Police Station, who discovered that the said plate number was tampered with and renumbered PTT 134.

From a police line-up of ten persons formed by the Makati Police Station, which included Del Rosario, Dela Rapa was asked to identify
Acosta’s killer and Ybasco’s abductors. Dela Rapa pointed to and positively identified Del Rosario as Acosta’s assailant. Dela Rapa gave a
supplemental statement45 pointing to and identifying Del Rosario as the person whom she saw boarding a white car.46

In the meantime, PNP Medico-Legal Officer Joselito Rodrigo performed an autopsy on the cadaver of Ybasco and issued Medico-Legal
Certificate No. M-006-94 which contained the following findings:

Well-nourished, well-developed male cadaver in rigor mortis with postmortem lividity over the dependent portions of the body.
Pale conjunctivae, cyanotic lips and nailbeds. Both upper extremities were handcuffed.

HEAD AND EXTREMITIES

1. Gunshot wound thru and thru point of entry right zygomatic region measuring 0.9 x 1.2 cms., 10 cms. from its anterior
midline with area of smugging and tattoing measuring 4 x 7 cms. directed posteriorwards, slightly downwards and to the
left fracturing the right zygomatic bone, maxillary bone, and occipital bone making a point of exit at the posterior neck
region measuring 1 x 1.2 cms., 2.5 cms. from its posterior midline.

CONCLUSION:
 Cause of death is hemorrhage as a result of gunshot wound of the head.47

The doctor also issued the victim’s Certificate of Death.48

On May 19, 1995, Del Rosario and Manansala were charged with robbery with homicide in an Information, the accusatory portion of which
reads:

That on or about March 7, 1994, in the Municipality of Makati, Metro Manila, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and confederating with Eduardo de Jesus y Enrile alias "Eddie,"
Christopher John Nash and one alias "Ton Ton" whose real name and present whereabout are still unknown and all of them
mutually helping and aiding one another, with intent of gain and by means of force, violence and intimidation, to wit: dragging,
shoving and pushing inside a Toyota Corolla car, colored white with Plate No. TAX-732 one SPO2 Eugenio Ybasco, did then and
there willfully, unlawfully and feloniously take, steal and carry away the following:

1) One (1) Cal. 38 revolver Smith & Wesson, with

Serial No. AUB-1015;

2) Identification Cards;

3) One (1) wallet containing ₱5,000.00 cash.

belonging to the said SPO2 Eugenio Ybasco, against his will, to the damage and prejudice of the said SPO2 Eugenio Ybasco
and/or his heirs and thereafter, the above-named accused, after handcuffing both hands of the said SPO2 Eugenio Ybasco, with
intent to kill, did then and there willfully, unlawfully and feloniously, shoot and fire at him with a handgun, thereby inflicting upon
the latter a mortal wound which was the direct and immediate cause of his death; that on the occasion of the aforesaid robbery
committed on SPO2 Eugenio Ybasco, the above-named accused, did then and there, willfully, unlawfully and feloniously shoot
and fire at, with a handgun, one Roberto Acosta y Capirao, a roving security guard detailed at the Ayala Center, who came to
the rescue of SPO2 Eugenio Ybasco, thereby inflicting upon him a serious mortal wound which directly caused his death.

CONTRARY TO LAW.49

Del Rosario was arraigned on April 5, 1994, assisted by counsel, and pleaded guilty to the charge.50 On April 15, 1994, Manansala, assisted
by counsel, was arraigned and pleaded not guilty.51 On April 21, 1994, Del Rosario appeared before the court and stated that he wanted
to testify and elucidate on how the crime charged was committed by him and his cohorts. The court granted Del Rosario’s request. With
the assistance of counsel de parte, he forthwith testified on how he, Manansala and the appellant perpetrated the crime.52 The court,
thereafter, rendered judgment convicting Del Rosario of robbery with homicide and sentencing him to suffer reclusion perpetua.53

On motion of the public prosecutor, the court admitted the Amended Information filed by public prosecutor. The amendment consisted of
the inclusion of Christopher John Nash and the appellant as additional accused.54Consequently, the court issued warrants for their arrest.
Christopher Nash filed a petition for review of the resolution of the public prosecutor finding probable cause against him for the crime
charged. On January 25, 1995, the Secretary of Justice granted the petition and ordered the public prosecutor to move for the withdrawal
of the Amended Information as against Christopher Nash only. The public prosecutor filed the motion 55 which the court granted on March
29, 1994.56 Manansala, through counsel, prayed for the inhibition of the Presiding Judge on the ground of partiality. The court granted the
motion. The case was re-raffled to Branch 65 of the court. In the meantime, the prosecution began presenting its evidence against
Manansala.

On November 20, 1995, the police operatives arrested the appellant in Cabuyao, Laguna.57 The appellant was arraigned, with the
assistance of counsel on February 13, 1996, and entered a plea of not guilty.58 On November 6, 1996, Manansala died while under
detention due to a mauling incident.59 The case against him was dismissed,60while trial against the appellant continued. Considering that
Del Rosario was detained at the national penitentiary, the court conducted a trial thereat on May 20, 1997, where Del Rosario testified for
the prosecution and was cross-examined by the appellant’s counsel.61

The appellant, through counsel, admitted the due execution of the sworn statement of Rolando Fajardo,62 Juanito Mendoza,63 Marcelina
Acosta64 and Dolores Ybasco,65 and waived his right to cross-examine the said witnesses.66 The prosecution no longer presented the affiants
as witnesses.

The Evidence for the Appellant

The appellant denied any involvement whatsoever in the crime charged. He did not know of any person named John Nash. He denied
being in the company of Manansala, Del Rosario and a certain Tonton in the evening of March 7, 1994.67

The appellant testified that in February 1994, he purchased a tricycle for ₱46,705 in Calamba, Laguna. He borrowed the amount from his
sister. He had the tricycle registered in his name.68 He drove the tricycle everyday to eke out a living, plying the route in Barangay Tabuyoc,
Apalit, Pampanga, from 6:00 a.m. to 9:00 p.m.69
On March 7, 1994, the appellant took out his tricycle to ply his usual route. At around 5:00 p.m. that day, he dropped off his passenger, Mrs.
Silvina Lumba, at the market. They had agreed that he would pick her up from the market, then drop her off at her house. The distance
from the market to the Lumba residence was about 2-l/2 kilometers. The trip took him about one hour.70 On March 10 or 11, 1994,
policemen raided his house, but failed to arrest him.71

The appellant admitted that he had known Manansala in Pampanga

since he was a boy. He alleged that Del Rosario was the brother of his wife, Cecille; hence, his brother-in-law.72After he and Cecille were
married, they resided in the house of his in-laws where Del Rosario was also staying.73There was a time when he and Del Rosario had a
violent altercation. As he was also a sewing machine mechanic by profession, Del Rosario asked him to alter a pair of pants, but the
appellant refused to do so. Del Rosario then smashed the sewing machine 74 and the two of them exchanged fist blows.75 Since then, Del
Rosario harbored a grudge against him. Later, he and Cecille parted ways. She married a Swedish national and resided in
Sweden,76bringing their daughter Diane Joyce along with her. The appellant had five children with his new partner. Del Rosario was also
mad at him because he had planned on filing a case against his sister for marrying a foreigner.

The appellant was in the house of his aunt on March 11, 1994 when he learned that he had been implicated in the case. A team of
policemen, together with Manansala and Del Rosario, raided his house. He saw his co-accused in a "bugbog-sarado condition."77 He also
received information that Del Rosario and Manansala were tied to a bridge and dipped into the river while under the custody of
policemen.78 Upon the advice of his brother, the appellant decided not to surrender, as he was afraid that he might also be mauled and
hurt by the police.79 The appellant, thereafter, worked in Binangonan, Rizal.80 He was arrested on November 20, 199581 and was brought to
Camp Vicente Lim,82 where he was treated well and subjected to physical examination.

While in prison, Del Rosario told the appellant that he would be impleaded and jailed as he had abandoned his sister, and that Del Rosario
was intending to file a case against him.83 The appellant received a letter with a Christmas card from his daughter in Sweden.84 He also
received a letter from Del Rosario dated December 4, 1997 through Pinky Dizon, the wife of one of the inmates at the penitentiary.85 In the
said letter, Del Rosario stated that the appellant was not involved in the case and apologized for implicating him. The appellant also
received a letter from Del Rosario sometime in Easter, suggesting that he ask for a hearing so that Del Rosario could testify and clear him of
the crime charged. The appellant also alleged that before Manansala died, the latter disclosed that he executed a statement implicating
the appellant because he (Manansala) was tortured by policemen.86

Silvina Lumba corroborated the testimony of De Jesus. She testified that at 5:00 p.m. on March 7, 1994, she contracted the services of the
appellant to transport her in his tricycle, going to and from the market. They arrived at her house at around 6:30 p.m. 87 The appellant asked
her to appear in court and to testify.88

Rosario Dizon Lopez testified that sometime in November or December 1997, she visited her husband Jerry Lopez at the Makati City Jail
where she met Del Rosario. She again met Del Rosario in Muntinlupa where he would ask her to deliver letters 89 to the appellant, who was
then detained at the Makati City Jail.90 The jail warden never knew that the said letters were handed to her; neither were her things
inspected when she left the national penitentiary. Lopez did not course the letters through the jail warden, but would simply go directly to
the jail guards who would inspect the letters and read them. She was then allowed to bring the letters in. Furthermore, the visits in the
Makati City Jail were not recorded in the logbook; nor was she required to sign therein. At times, her forearms were stamped to indicate
that she was a visitor.91 She also recounted that sometime in 1997, the appellant asked for money from Del Rosario, but the latter did not
send any.92

Jennifer Obina, the appellant’s live-in partner, testified that the latter worked as a sewing machine mechanic in a garment factory in
Pasong Tamo Extension, Makati, when they started living together. In 1988, she was engaged in the business of selling fish and tinapa.
Sometime in February 1994, the appellant bought a tricycle and drove it as a means of livelihood. He would start plying his route, usually
around the market and the municipal hall, at 6:00 a.m. until 5:00 p.m. everyday of the week.

On March 10, 1994, Obina was surprised to learn that the appellant was implicated in a kidnapping and killing incident which was aired
over the television and radio.93 Also on the said date, policemen in civilian clothes who were looking for her "husband" raided their
house.94 The appellant, however, was not there, but was within the vicinity of his aunt’s house. The policemen never showed any warrant of
arrest or search warrant. They just went inside the house and poked a gun at her head. They forced her to reveal where the appellant was,
but she refused to do so.95 Neither was she informed why they were looking for him. The policemen merely told her that the appellant was a
criminal and a killer. Although the appellant knew that he was "wanted" for the kidnapping and killing incidents, he just ignored the
matter.96 Obina later learned from the appellant’s cousin that the latter had already left for Manila.97 The appellant did not return for about
a week, and thereafter, stayed with his aunt in Taguig.98

After trial, the court rendered judgment finding De Jesus guilty of the crime charged, the decretal portion of which reads:

WHEREFORE, in view of the foregoing, judgment is rendered finding the accused EDUARDO DE JESUS Y ENRILE GUILTY beyond
reasonable doubt of the crime of Robbery with Homicide and sentencing him to suffer the penalty of DEATH; to indemnify the
heirs of the deceased SPO2 Eugenio Ybasco and Roberto Acosta in the sum of ₱50,000.00 each family; and to pay the heirs of
SPO2 Eugenio Ybasco the sum of ₱500,000.00 by way of moral damages.99

The trial court relied principally on the testimony of Dela Rapa and Del Rosario, corroborated by the other evidence on record, in
convicting the appellant of the crime charged. It considered the testimony of Del Rosario on April 21, 1994 as a judicial confession,
admissible in evidence not only against the confessant (Del Rosario) but also against the appellant.
The appellant now assails the decision of the trial court on the following grounds:

I. THE TRIAL COURT ERRED IN NOT FINDING THAT THE EVIDENCE OF THE PROSECUTION IS INSUFFICIENT TO PROVE THE GUILT OF
ACCUSED-APPELLANT BEYOND REASONABLE DOUBT.

II. THE TRIAL COURT ERRED IN ADMITTING THE JUDICIAL CONFESSION OF ACCUSED CRISPIN DEL ROSARIO AND IN USING THE SAME
AGAINST THE OTHER ACCUSED, INCLUDING ACCUSED-APPELLANT EDUARDO DE JESUS, IMPLICATING THEM TO THE CRIME
CHARGED, DESPITE THE FACT THAT THE SAME IS INADMISSIBLE IN EVIDENCE. MOREOVER, THE AFFIDAVIT OF ACCUSED DANTE
MANANSALA POINTING TO ACCUSED-APPELLANT AS THE ASSAILANT IS LIKEWISE INADMISSIBLE IN EVIDENCE.

III. THE TRIAL COURT ERRED IN DECLARING THAT ACCUSED-APPELLANT CONSPIRED WITH THE OTHER ACCUSED IN COMMITTING THE
CRIME CHARGED.

IV. THE TRIAL COURT ERRED IN OUTRIGHTLY DISREGARDING ACCUSED-APPELLANT’S DEFENSE OF ALIBI AND DENIAL, DESPITE THE FACT
THAT THE SAME IS CREDIBLE AND WAS CORROBORATED BY ANOTHER WITNESS.

V. THE TRIAL COURT ERRED IN APPRECIATING AGAINST THE ACCUSED-APPELLANT THE AGGRAVATING CIRCUMSTANCE OF
TREACHERY.

VI. THE TRIAL COURT ERRED IN HOLDING THAT THE CRIME OF ROBBERY WITH HOMICIDE WAS COMMITTED DESPITE THE FACT THAT NO
ROBBERY ACTUALLY TOOK PLACE.

VII. THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT AND IN IMPOSING UPON HIM THE SUPREME PENALTY OF
DEATH, AND IN NOT ACQUITTING HIM OF THE CRIME CHARGED, DESPITE THE FACT THAT THE PROSECUTION’S EVIDENCE AGAINST
ACCUSED-APPELLANT FAILED TO STAND THE CRUCIBLE TEST OF REASONABLE DOUBT TO OVERTHROW THE CONSTITUTIONALLY
GUARANTEED PRESUMPTION OF INNOCENCE.100

The appellant contends that the prosecution failed to prove the commission of the crime charged beyond reasonable doubt. While the
prosecution may have proved the killing of Acosta and Ybasco, it, however, failed to prove that the appellant divested Ybasco of ₱5,000.

The appellant also avers that the prosecution failed to prove that he was one of the malefactors, and his precise participation in the
commission of the crime charged. He asserts that absent proof of conspiracy, Del Rosario’s judicial confession is admissible in evidence only
against the confessant but not against him. Moreover, the appellant asserts, the said judicial confession came from a "polluted source," as
Del Rosario himself admitted to being one of the malefactors. Thus, his testimony must be scrutinized with care and subjected to grave
suspicion. The appellant further avers that Del Rosario even stated that Manansala was Ybasco’s assailant. He argues that Del Rosario
himself could also have been the assailant, as it was he who shot Acosta when the latter tried to rescue Ybasco.

According to the appellant, Del Rosario implicated him, his own brother-in-law, because they often quarreled with each other. The
appellant had made life miserable and unbearable for Del Rosario, and the latter’s sister, who was later impelled to marry a Swedish
national. As shown by Del Rosario’s letters to the appellant, the former himself apologized to the latter for having falsely implicated him in
the crime charged.

Contrary to the ruling of the trial court, Del Rosario’s letters to the appellant were not hearsay. The prosecution could very well have
presented Del Rosario anew to refute his allegations, but the prosecution failed to do so. The appellant further argues that Manansala’s
extrajudicial confession is hearsay, because the latter died before he could testify and later be cross-examined by the appellant thereon.
Moreover, the affidavits and testimony of Dela Rapa, as well as Del Rosario’s judicial confession, are utterly insufficient on which to anchor
a finding that the appellant was one of the malefactors and that he conspired with the perpetrators of the crime, namely, Manansala and
Del Rosario. Finally, the appellant concludes that Dela Rapa failed to identify him as one of the malefactors.

We have meticulously reviewed the records and we are convinced beyond cavil that the prosecution adduced proof beyond reasonable
doubt that the appellant, Del Rosario and Manansala, conspired to rob Ybasco of US$250,000 through violence and intimidation and that
the appellant was one of the perpetrators thereof; hence, criminally liable therefor as a principal by direct participation.

The Felony of Robbery

With Homicide

Article 294, paragraph 1 of the Revised Penal Code provides:

Art. 294. Robbery with violence against or intimidation of persons – Penalties. - Any person guilty of robbery with the use of
violence against or 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.
For the accused to be convicted of the said crime, the prosecution is burdened to prove the confluence of the following elements:

(1) the taking of personal property is committed with violence or intimidation against persons;

(2) the property taken belongs to another;

(3) the taking is animo lucrandi; and

(4) by reason of the robbery or on the occasion thereof, homicide is committed.101

In robbery with homicide, the original criminal design of the malefactor is to commit robbery, with homicide perpetrated on the occasion
or by reason of the robbery.102 The intent to commit robbery must precede the taking of human life.103 The homicide may take place
before, during or after the robbery. It is only the result obtained, without reference or distinction as to the circumstances, causes or modes
or persons intervening in the commission of the crime that has to be taken into consideration.104

There is no such felony of robbery with homicide through reckless imprudence or simple negligence. The constitutive elements of the crime,
namely, robbery and homicide, must be consummated.

It is immaterial that the death would supervene by mere accident; or that the victim of homicide is other than the victim of robbery, or that
two or more persons are killed or that aside from the homicide, rape, intentional mutilation, or usurpation of authority, is committed by
reason or on the occasion of the crime. Likewise immaterial is the fact that the victim of homicide is one of the robbers; the felony would still
be robbery with homicide. Once a homicide is committed by or on the occasion of the robbery, the felony committed is robbery with
homicide. All the felonies committed by reason of or on the occasion of the robbery are integrated into one and indivisible felony of
robbery with homicide. The word "homicide" is used in its generic sense. Homicide, thus, includes murder, parricide, and infanticide.

Intent to rob is an internal act but may be inferred from proof of violent unlawful taking of personal property. When the fact of asportation
has been established beyond reasonable doubt, conviction of the accused is justified even if the property subject of the robbery is not
presented in court. After all, the property stolen may have been abandoned or thrown away and destroyed by the robber or recovered by
the owner.105 The prosecution is not burdened to prove the actual value of the property stolen or amount stolen from the victim. Whether
the robber knew the actual amount in the possession of the victim is of no moment because the motive for robbery can exist regardless of
the exact amount or value involved.106

When homicide is committed by reason or on the occasion of robbery, all those who took part as principals in the robbery would also be
held liable as principals of the single and indivisible felony of robbery with homicide although they did not actually take part in the killing,
unless it clearly appears that they endeavored to prevent the same.107

If a robber tries to prevent the commission of homicide after the commission of the robbery, he is guilty only of robbery and not of robbery
with homicide. All those who conspire to commit robbery with homicide are guilty as principals of such crime, although not all profited and
gained from the robbery. One who joins a criminal conspiracy adopts the criminal designs of his co-conspirators and can no longer
repudiate the conspiracy once it has materialized.108

Homicide is said to have been committed by reason or on the occasion of robbery if, for instance, it was committed to (a) facilitate the
robbery or the escape of the culprit; (b) to preserve the possession by the culprit of the loot; (c) to prevent discovery of the commission of
the robbery; or, (d) to eliminate witnesses in the commission of the crime. As long as there is a nexus between the robbery and the
homicide, the latter crime may be committed in a place other than the situs of the robbery.

The Prosecution Adduced Proof

Beyond Reasonable Doubt That

The Appellant Conspired With Del

Rosario And Manansala To Commit

Robbery With Violence Against Or

Intimidation Of Persons

Under Article 8 of the Revised Penal Code, there is conspiracy when ten or more offenders agree to commit a felony and decide to
commit it. Conspiracy may be proved by direct evidence or by circumstantial evidence. Conspiracy must be shown as distinctly and
conclusively as the crime itself.109 It may be declared from the acts of the suspect before, during and after the commission of the felony
which are indicative of a joint purpose, concocted action and concurrence of sentiments.110
To be a conspirator, one need not participate in every detail of the execution; he need not even take part in every act or need not even
know the exact part to be performed by the others in the execution of the conspiracy. Each conspirator may be assigned separate and
different tasks which may appear unrelated to one another but, in fact, constitute a whole collective effort to achieve their common
criminal objective.111 Once conspiracy is shown, the act of one is the act of all the conspirators. The precise extent or modality of
participation of each of them becomes secondary,112 since all the conspirators are principals. To exempt himself from criminal liability, a
conspirator must have performed an overt act to dissociate or detach himself from the conspiracy to commit the felony and prevent the
commission thereof.113

In this case, the appellant, Del Rosario and Manansala, intended to abduct Ybasco and divest him of money in the amount of US$250,000,
which they thought Ybasco was about to deposit in the bank. Each of them had specific tasks to perform: the appellant and Manansala
were tasked to abduct Ybasco, handcuff him and board him in their car, while Del Rosario acted as a lookout who would prevent anyone
from interfering with Ybasco’s abduction and the consummation of the robbery. The trio performed their tasks with precision. In the process,
Del Rosario shot and killed Acosta who was on patrol within the vicinity and had rushed to the scene to investigate the incident. The
appellant and Manansala abducted Ybasco, handcuffed him and boarded him in the car. Del Rosario took Acosta’s service gun bearing
serial number 172410 after killing the victim. This is gleaned from the Del Rosario’s testimony, viz:

FISCAL BACULI

Q Isinusumpa mo ba na ang lahat ng sinasabi mo ay pawang katotohanan lamang?

A Oho, sir, siya rin ho ang nagsabi niyan sa akin narinig ko sa kanyang bunganga, ngayon pagdating naming dito ng mga menus
kinse bago magalas-sais dito sa may kotse doon piplano (sic) ni Dante kung paanong posisyon ang gagawin dinala niya ako sa
may kanto ng Rustan’s si Eddie doon niya ipinuwesto sa may banda roon ng aking puwesto tapos ho si Dante dito naman siya sa
may malapit sa money changer siya ang tumitingin at umaagap dito kay sir Ybasco, ngayon ho nong dumating ang oras ng
labas ni sir Ybasco nauna si Dante kasunod si sir Ybasco ngayon ho pagdating sa akin sa may kanto sabi sa akin ni Dante
"nandiyan na bahala ka diyan" sabi sa aking ganon kung meron mang humarang ikaw ang bahala upakan mo sabi sa aking
ganon ako naman ang bahala dito kay tanda kay tatang sabing ganon tutulungan ko si Eddie dito sa pagipit, ngayon ho nong
lumampas sa akin si sir Ybasco dalawa na sila doon si Dante at si Eddie ngayon ho nakita ko dinakot nila si sir Ybasco pinosasan
nila tapos pilit nilang isinakay sa kotse siya naming dating nong guwardiya at tinanong sa akin "bakit anong ibig sabihin niyan" at
nakahawak sa pulohan ng baril ngayon ho natakot naman ako dahil nakahawak sa pulo ng baril baka ako barilin ngayon ho sa
lito ko hindi ko maintindihan kung anong gagawin ko ang ginawa ko ho pagbunot niya ng baril yon pinilit agawan ng baril
habang inaagaw ko ang baril sigaw naman ng mga ito pilitin mong maagaw tapos iputok mo sa kanya.

COURT

Sino ang nag-utos sa iyo non?

A Si Dante po, sir, tapos po di hindi ko naman inintindi yon dahil alam ko naman ang gagawin ko dahil ako naman talaga ang
mamamatay kung bibitawan ko eh yon ho pagkaagaw ko ng baril kaysa ako ang mamatay siya na ho ang pinutukan ko. 114

Del Rosario’s testimony is corroborated by the fact that Acosta’s firearm was found in his possession when he was arrested by the
police,115 and by Dela Rapa’s sworn statements to the Makati police office as well as her testimony:

Q While selling cigarette at that date and time, do you still remember or recall of any unusual incident that happened on that
date and time?

A Yes, sir.

Q Please inform the Court what was that unusual incident that happened on that date and time?

A Mr. Ybasco was forcefully dragged into the white car, sir.

Q Who is this Mr. Ybasco, if you know?

A I called him "Sir Ybasco," sir.

Q Why do you addressed him "Sir Ybasco?"

A Because I know him for a long time and I’m selling cigarette for a long time, sir.

Q Do you know where he was connected?

A Yes, sir.

Q Where?
 A Money Changer, Sir.

Q Do you know also if he is [a] member of [the] Makati Police Headquarters?

A Yes, sir.

Q How long have you know[n] him as [a] member of the Makati Police Headquarters?

A As far as I know I am selling for thirteen years and he is also working at the Makati Police Headquarters for thirteen years.

Q Do you know what was his position or nature of his work at the Makati Police Headquarters?

A I do not know, sir.

Q A while ago, you said that with the same date and time, you saw some persons shoving, dragging and pushing Eugenio Ybasco
inside a white car, do you know the identities of these some (sic) persons?

A I cannot remember the persons who dragged, shoved and pushed Eusebio Ybasco inside the car because it was a little bit
dark, sir.

Q But, were there lights that (sic) date and time?

A Yes, sir.

Q How many lights were there at that place and time?

A There were several lights at that date and time, because it is a parking lot and there were lights in the Kimpura, sir.

Q Do you still recall how many persons were pushing, shoving and dragging Eugenio Ybasco inside a white colored car?

A Around three (3) persons, sir.

Q Are these three (3) persons male or female?

A Male, sir.

Q Now, what happened then when these three male persons pushed, dragged or shoved Eugenio Ybasco inside the white car?

A After Eusebio Ybasco was pushed inside the car he (witness is referring to Crispin Del Rosario) shot Mr. Acosta, a certain Security
Guard.

Q Are you sure that he was the one who shot a certain Security Guard Roberto Acosta?

A Yes, sir.

Q Did you see him actually shoot a certain Roberto Acosta?

A Yes, sir.116

Juanito Mendoza, likewise, corroborated in part the testimonies of Del Rosario and Dela Rapa.117 The barefaced fact that Dela Rapa and
Mendoza did not see the face of the appellant and could not identify him as one of Ybasco’s abductors does not negate the fact that
they witnessed the abduction and the killing of Acosta.

The Prosecution Adduced Proof

Beyond Reasonable Doubt that

the Appellant and his Cohorts

Divested Ybasco of P5,030.00 And

That The Appellant Shot Ybasco And

Acosta To Death On The Occasion

Or By Reason Of Robbery

We reject the appellant’s contention that the prosecution failed to prove that the appellant and his cohorts divested Ybasco of ₱5,030.00,
and his argument that Ybasco was shot by either Manansala or Del Rosario. The prosecutor adduced proof beyond reasonable doubt that
Del Rosario shot Acosta in Makati, that the appellant divested Ybasco of ₱5,000.00, and that Del Rosario divested the victim of ₱30.00. This is
gleaned from the testimony of Del Rosario, viz:

FISCAL BACULI

Ikaw ba ay handang tumestigo laban kay Dante Manansala kung bibistahan uli ang kaso niya?

A Opo, sir, tapos po nakita ko pong naisakay na si sir Ybasco na hindi ko naman alam na pulis pala at pagkakita ko pong
nakasakay na sila ako nama’y takbo tapos may bumaril pa ho sa loob ng kotse kaya nagkaroon ng sira yung likuran ng kotse
hindi ko ho matiyak kung ako ang binaril nila o yong guwardiya dahil ang alam ko talaga ako ang nakabaril sa guwardiya wala
naman silang babarilin kundi ako lang talaga dahil ako nama’y biktima nila ngayon po pagdating naming sa kotse umandar na
kami papunta kami ng expressway sa madalit sabi ho di nasa expressway na kami nong malapit na kami sa Cabuyao ang sabi ni
Dante "nandito na tayo sa Cabuyao ninong ang mayor diyan wala tayong problema dito na lang natin itumba yan" hindi naman
ho ako makapagsalita dahil marami naman ho sila eh di pagdating ho ng Cabuyao doon sa may tubohan tumigil ho ang kotse
at bumaba si Dante, pagbaba ni Dante ang sabi narinig ko "teka muna titingnan ko muna baka may tao" dahil madilim ho ang
lugar tapos ho nong makita niyang walang tao sabi niya kay Eddie "sige Ed ibaba mo na yan si tatang" ngayon bago niya
ibinaba si tatang akala ko pasasakayin niya ng tricycle dahil ang sabi ni Eddie sa loob ng tricycle eh pakakawalan na naming
kayo basta huwag lang kayong hahabol kami’y eh mga NPA sabing ganon pa ni Eddie hindi naman kami NPA si Eddie lang ang
NPA yon ang panakot sabi naman ni sir Ybasco "sige wala tayong problema mga anak sabi niyang ganon" ngayon ho ibinaba
nila si sir Ybasco, si Eddie at si Dante dinala ho sa banda roon, akala ko naman talagang pasasakayin nila ng tricycle dahil yong
pera ho sa bulsa ni sir Ybasco na baryang otsenta pesos ako pa ho ang kumuha non at ako pa ho ang nagbigay ng singkuwenta
pesos kay sir Ybasco ngayon ho nong pagkababang yon nakita ko hong tinututukan ni Eddie kasama si Dante dahil
ipinagmamalaki niya na ninong nga daw niya yong meyor doon at malakas siya sa Cabuyao. Ngayon ho di patay yong tao
nakita ko tagilid siyang bumagsak tapos eh tumihayang ganon tapos eh uulitin ng baril kaya lang hindi na naulit dahil
bumatangal daw yong baril kaya hindi na ho pumutok.

COURT

Sino ang bumaril?

A Si Eddie po ang nakita kong bumaril pero ang nagbaba ho ng tao ay silang dalawa, si Eddie at si Dante, ngayon ho pagdating
naming sa Calamba yon ibinaba na nila ako sa Calamba binigyan niya ako ng pera isangdaang piso.

FISCAL BACULI

Sino ang nagbigay ng pera sa iyo?

A Si Eddie po dahil nasa kanya yong pera eh, ngayon ho di binigyan na ako ng perang isandaang pisong pamasahe at marami
pa raw hong papartihan … (interrupted).

COURT

Magkano bang nakuha n’yo?

A ₱5,000.00 lang, sir, at ipapaayos pa raw ang salamin sa likod dahil sira dahil habang kami’y nananakbo eh nalaglag na yong
salamin ngayon ho hindi ko na alam kung saan nila dinala yong kotse at saka isa pa ho sobra ho galit niya kay sir Ybasco
hinahanap niyang maigi ang pera na $250,000 daw.

FISCAL BACULI

Sino?

A Si Dante ho, sir, nong kami’y nasa expressway galit na galit yan kay sir Ybasco minumura niyang magaling yong matanda at
binabatukan pa ho ng patunog hinahanap yong perang $250,000 bakit daw hindi siya nagdeliber ngayon hinahanap niyang
magaling sabi naman ho ni sir Ybasco "eh wala naman akong idenideliber mga anak na ganyang kalaking pera" ang akala ko
meron ng pera sabi pa niyang ganon eh pagtingin ko naman ho sa bag sa loob ng bag eh wala naman ho ang nakita ko lang
ay baunan nong mga oras na yon.118
It is true that when Del Rosario continued with his testimony during the trial on May 20, 1997, he admitted to having pleaded guilty to
robbery with homicide, but declared that no robbery took place:

PROS. BAGAOISAN

Mr. Witness, do you recall that you pleaded guilty to the offense Robbery with Homicide before Branch 65, Regional Trial Court,
Makati City?

WITNESS

Yes, sir, but there was no robbery that took place on that day.119

Del Rosario even declared on re-direct examination that no money was found in the possession of Ybasco and that when he testified on
April 21, 1994, his mind was confused:

PROS. BAGAOISAN

Yes, Your Honor.

Q Mr. Witness, you testified on cross-examination that there was (sic) no robbery that (sic) was committed, am I correct?

WITNESS

Yes, sir.

PROS. BAGAOISAN

But in the hearing of April 21, 1994, particularly on page 18 of the transcript of stenographic notes, the Court asked you [a]
question and I repeat: Magkano ba ang nakuha ninyo? Five thousand lang, sir. How do you reconcile now your testimony that
there was no robbery to your answer to that question that you were able to take the amount of five thousand pesos?

WITNESS

Well sir, what I know is that their target was the money changer because the money changer where Sir Ybasco has a part time
job but they were thinking that the old man takes the money to the bank…. and Sir Ybasco takes the money to the bank. They
are planning to holdup Sir Ybasco but they were not able to find money from him, sir.

PROS. BAGAOISAN

Now, where did you get then this amount of five thousand pesos?

WITNESS

Well, sir, at that time my mind was confused, I have said that amount five thousand pesos, but the truth is there was no money
found from Sir Ybasco, sir.120

Indeed, Del Rosario’s testimony during the trial on May 20, 1997 is inconsistent with his testimony during the trial of April 21, 1994. But the trial
court rejected the aforequoted testimony of Del Rosario on May 20, 1997, and gave credence to his testimony on April 21, 1994.

We agree with the trial court.

First. When the public prosecutor asked Del Rosario to affirm and confirm the truth of his answers to the questions propounded on him
during the trial of April 21, 1994,121 Del Rosario unequivocably declared that his answers to the said questions were true, and that he was not
coerced, forced or intimidated into answering:

PROS. BAGAOISAN

After you pleaded guilty before Branch 65 Regional Trial Court, Makati City, do you recall that the Presiding Judge and the Fiscal
propounded questions to you regarding that incident?

WITNESS
 Yes, sir.

PROS. BAGAOISAN

In other words, there was a hearing conducted after you pleaded guilty to the offense charged?

WITNESS

Yes, sir.

PROS. BAGAOISAN

Now, Mr. Witness, I am showing to you an official transcript of stenographic notes of Branch 65 Regional Trial Court, Makati City,
certified true and correct by Court Stenographic Reporter Ms. Concepcion Padua, will you please go over the same and tell us if
these are the same questions that were propounded to you and these are the same answers that you have given to the
questions?

WITNESS

Yes, sir, these are the questions that were asked and these are my answers.

PROS. BAGAOISAN

Mr. Witness, under your present oath, do you still affirm and confirm the truthfulness and veracity by (sic) your answers to the
questions propounded to you by the Presiding Judge and the prosecutor?

WITNESS

Yes, sir.

PROS. BAGAOISAN

Were you forced, coerced or intimidated when you made these answers, Mr. Witness?

WITNESS

No, sir.122

Second. We have carefully reviewed the testimonies of Del Rosario on April 21, 1994 and May 20, 1997, and conclude that it is Del Rosario’s
testimony during the hearing of April 21, 1994 which represents the truth. The transcript of stenographic notes taken during that day is
replete with important details, logical and positive in character, and consistent even in light of the clarificatory questions of the trial court.
Del Rosario, who was then assisted by counsel, could not have contrived his April 21, 1994 testimony where he implicated not only the
appellant and Manansala but also confirmed his criminal participation in the crime charged, including his killing of Acosta. His testimony on
April 21, 1994 was not made by one who had a confused mind, but by one who had a clear recollection of what he, the appellant and
Manansala, had done with precision to consummate the crime they had planned so meticulously to accomplish. In contrast, the testimony
of Del Rosario on May 20, 1997, made more than three years after his initial testimony, is frontally inconsistent. He claimed that his mind was
confused when he testified on April 21, 1994, but in the same breath, affirmed and confirmed the truth of his answers to the questions
propounded on him during the said trial.

Del Rosario claimed in his testimony during the hearing of May 20, 1997 that when he pleaded guilty to robbery with homicide, he was not
assisted by counsel. However, the records show that he was, in fact, assisted by his counsel, Atty. Sofronio Untalan, Jr.123 We find it incredible
that Del Rosario would plead guilty to robbery with homicide and accept the penalty of reclusion perpetua imposed on him by the trial
court if, after all, Ybasco was not robbed of ₱5,000. For the court to acquit the appellant of robbery with homicide simply and merely
because Del Rosario made a volte face and disavowed his judicial confession on his bare claim that his mind was confused when he
testified on April 21, 1994 is unacceptable. In People v. Ubiña, et al.,124 we ruled that it would be a dangerous rule for courts to reject
testimonies solely taken before the courts of justice simply because witnesses who had given them later on change their minds for one
reason or another. Such a rule would make some trials a mockery and place the investigation of truths at the mercy of unscrupulous
witnesses. All the expedients devised by men to determine the credibility of witnesses should be utilized to determine which of the
contradictory testimonies represents the truth.125The trial court and this Court reviewed the records and have come to the same conclusion
– it is Del Rosario’s April 21, 1994 testimony which represents the truth.

It is true that Del Rosario was a co-conspirator and that he implicated the appellant and Manansala in the killing of Ybasco and the taking
of ₱5,000 from the latter. However, we have ruled that the testimony of a co-conspirator may be given full probative weight if it is shown to
be candid and straightforward, and is full of details which by its nature could not have been contrived, besides being corroborated by
independent evidence. In People v. Sia,126 we had the occasion to state:
 … [I]n this regard, it must be borne in mind that the fact that a witness may have been a co-conspirator in the commission of the
offense is not in itself sufficient to dilute the credibility of or, much less, be a ground to disregard altogether his testimony. Indeed:

By way of exception, the testimony of a co-conspirator may, even if uncorroborated, be sufficient as when it is shown to
be sincere in itself, because given unhesitatingly and in a straightforward manner, and is full of details which by their
nature could not have been the result of deliberate afterthought.127

The April 21, 1994 testimony of Del Rosario is not only replete with details; it is also corroborated by independent evidence, including the
medico-legal report of Dr. Joselito A. Rodrigo and his testimony that Ybasco was shot once on the right cheek,128 the sworn statement of
Mendoza, the sworn statements and testimony of Dela Rapa, as well as the results of the investigation of the police operatives.

Del Rosario’s letters to the appellant dated October 8, 1997 and December 4, 1997,129 did not weaken his testimony and enfeeble the case
for the prosecution. Neither did they bolster the appellant’s defenses of denial and alibi. The appellant’s contention that his own brother-in-
law, Del Rosario, bore a grudge against him on account of their personal differences, deserves scant consideration.

First. On cross-examination by the defense counsel on May 20, 1997, Del Rosario was asked if he bore a grudge against the appellant on
account of the latter’s separation from his wife, Cecille, Del Rosario’s sister. Del Rosario categorically denied nurturing any grudge against
the appellant:

ATTY. DE LEON

Do you know this person Ed de Jesus?

WITNESS

Yes, sir.

Q Why do you know him?

A He was a former husband of my sister, sir.

Q Is it correct to say that Ed de Jesus and your sister were already separated?

A Yes, sir, almost 17 years.

Q And because they were already separated, you took grudge against Ed de Jesus, is that correct?

A No, sir.

Q Do you have any grudge against Ed de Jesus?

A None, sir.130

Second. In his October 8, 1997 letter, Del Rosario claimed that the appellant was even intending to send money to him and that he, Del
Rosario, was expecting some money from the appellant. Del Rosario even expressed hope that the appellant would help him first:

O cege (sic) Ed hanggang dito nalang at sana lagi kang mag-iingat diyan at ako’y umaasa na magpapadala ka dito sa akin. At
siyempre alam mo na walang Bigas. walang ulam. walang gas. At walang pera. Siguro naman mas higit mo akong dapat na
matulungan. Kaysa sa ibang kakosa natin dito.131

If, as claimed by the appellant, his brother-in-law Del Rosario falsely implicated him in the heinous crime, Del Rosario should have
manifested remorse and sought forgiveness from the appellant for his perfidy. Del Rosario did not do so, and was even expecting financial
help from the appellant, the very person he falsely implicated.

Third. In the Letter dated December 4, 1997, Del Rosario stated that he implicated the appellant in the robbery because of his fear that the
appellant would sue his ex-wife. This was but an afterthought on the part of Del Rosario to inveigle the appellant to send money to him. The
appellant did not adduce evidence to prove that animosity existed between him and his ex-wife, or between him and Del Rosario, on
account of the appellant’s separation from Cecille. The appellant and his ex-wife had mutually agreed to separate more than two
decades ago. In the interim, the appellant and his ex-wife had separate partners and families. The only proof the appellant offered was his
bare testimony, which does not deserve credence.

The appellant’s bare denial of the crime charged and his alibi are intrinsically weak defenses and cannot prevail over the positive and
straightforward identification made by Del Rosario, that the appellant was one of the perpetrators of the crime charged. 132 Alibi is so easy
to concoct and difficult to disprove.133 Furthermore, the appellant’s defenses of denial and alibi were debilitated by his flight after learning
that he was wanted by police authorities for robbery with homicide, and his hiding in Cabuyao, Laguna on November 20, 1994, where he
was arrested. The appellant managed to evade the police authorities from March 10 or 11, 1994134 by working in Cabuyao, Laguna, and in
Binangonan, Rizal,135 while his family remained in Pampanga. We agree with the following disquisitions of the trial court:

Additionally, working against the accused Eduardo de Jesus is his "flight" from justice. After knowing that the police authorities
were after him in connection with this case, he went into hiding. He was brought to Court only after he was arrested by the PNP
Regional Directorate Intelligence, Camp Vicente Lim, Calamba, Laguna, on November 20, 1995. (Records, p. 195). "Flight"
according to the Supreme Court, is an indication of guilt. His reason that he feared for his life has no basis.136

The trial court sentenced the appellant to suffer the death penalty on its finding that Ybasco was shot to death with treachery. The
appellant contends that (a) the prosecution failed to prove that he shot the victim; and, (b) even if he did shoot the victim, the prosecution
failed to prove that he adopted a particular means or method to do so. The Office of the Solicitor General contends that treachery was
attendant because when Ybasco was shot, he was handcuffed; hence, unable to defend himself.

We agree with the trial court and the Office of the Solicitor General. The evidence on record shows that when the appellant and
Manansala abducted Ybasco in Makati, they handcuffed the victim and transported him to a sugar field in Cabuyao, Laguna. The
appellant and Manansala brought Ybasco out of the car. Still handcuffed, Ybasco was shot by the appellant on the right cheek. The
appellant insists that it was Del Rosario who shot Ybasco. However, the identity of the conspirator who shot Ybasco and Acosta is of no
moment.

In People v. Escote, Jr.,137 the trial court ruled that treachery is aggravating in robbery with homicide. The aggravating circumstance of the
use of a vehicle in committing robbery with homicide is also attendant in this case. The appellant and his cohorts used a vehicle when they
abducted Ybasco and transported him to Cabuyao, Laguna. However, the Information does not allege that the appellant and his cohorts
used a vehicle in committing the crime charged as mandated by Section 8, Rule 110 of the Revised Rules of Criminal Procedure. The rule
must be applied retroactively because it is favorable to the appellant.138 However, the additional killing is not an aggravating circumstance
in robbery with homicide. This is in accordance with the ruling of this Court in People v. Regala139which is the prevailing doctrine.

The imposable penalty for robbery with homicide as amended by Rep. Act No. 7659 is reclusion perpetua to death. Considering the
presence of the aggravating circumstance of treachery, and that no mitigating circumstance attended the commission of the crime, the
trial court correctly sentenced the appellant to suffer the death penalty, conformably to Article 63, paragraph 1 of the Revised Penal
Code.

The trial court ordered the appellant to pay ₱50,000 to the heirs of Ybasco and ₱50,000 to the heirs of Acosta as civil indemnity. It also
ordered the appellant to pay to the heirs of Ybasco ₱500,000 as moral damages. The trial court, however, failed to award exemplary
damages. We shall, thus, modify the decision of the trial court.

The heirs of Ybasco are entitled to ₱75,000 as civil indemnity. Although the killing of Acosta was integrated into the single and indivisible
felony of robbery with homicide, the two crimes having no separate juridical existence, nonetheless, the heirs of Acosta are entitled to civil
indemnity.140

The heirs of Ybasco are entitled to exemplary damages in the amount of ₱25,000.141 The heirs of Acosta are, likewise, entitled to ₱25,000 as
exemplary damages. Since Dolores Ybasco, the widow of the victim, testified for the prosecution on the factual basis for moral damages,
the heirs of Ybasco are entitled to, moral damages in the amount of ₱75,000. However, the heirs of Acosta are not entitled thereto, for
failure of the prosecution to present any of the heirs of the victim to testify on the factual basis for the said damages. The appellant is
obliged to return to the heirs of Ybasco the ₱30.00 which Del Rosario took from Ybasco before he was shot.

IN THE LIGHT OF THE FOREGOING, judgment is rendered AFFIRMING WITH MODIFICATION the Decision of the Regional Trial Court of Makati,
Branch 4. The appellant Eduardo de Jesus is found GUILTY of robbery with homicide under Article 294, paragraph 1 of the Revised Penal
Code, as amended by Rep. Act No. 7659, and sentenced to suffer the death penalty. The said appellant is hereby ORDERED to pay to the
heirs of the victim SPO3 Eugenio Ybasco the amount of ₱5,030.00 as actual damages; ₱75,000 as civil indemnity; ₱75,000 as moral
damages, and ₱25,000 as exemplary damages. The appellant is, likewise, ORDERED to pay to the heirs of Roberto Acosta ₱75,000 as civil
indemnity and ₱25,000 as exemplary damages. Costs de oficio.

SO ORDERED.

[G.R. No. 134362. February 27, 2002]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EMELITO SITCHON y TAYAG, accused-appellant.

DECISION

KAPUNAN, J.:
 For beating to death the two-year old son of his common-law wife, accused-appellant Emelito Sitchon y Tayag was convicted of
murder and sentenced to death by the Regional Trial Court of Manila. His case is now before this Court on automatic review.

Appellant was charged in an information stating:

That on or about June 12, 1996, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously,
with intent to kill and with treachery and evident premeditation, attack, assault and use personal violence upon one MARK ANTHONY
FERNANDEZ y TABORA a minor, 2 years old, by then and there mauling and clubbing him on the different parts of his body with the use of a
steel hammer and a wooden stick, approximately 18 inches long, thereby inflicting upon the latter mortal wounds which were the direct
and immediate cause of his death thereafter.

CONTRARY TO LAW.[1]

Appellant pleaded not guilty to the above charge.[2] However, before testifying in his own defense on June 4, 1998, appellant
admitted that he killed the victim and changed his plea to guilty.[3]

Five witnesses testified for the prosecution, namely, Lilia Garcia, a neighbor; the victim's eight-year old brother Roberto; the
investigating officer, PO3 Paul Dennis Javier; Dr. Manuel Lagonera, medico-legal officer of the National Bureau of Investigation (NBI); and
Felicisima Francisco, a forensic chemist of the same agency.

Appellant lived in the second floor of a three-square meter house located at 2001 Batangas Street, Tondo, Manila. His neighbor of two
months, Lilia Garcia, resided in the first floor of the same house.

At about 10:00 in the morning of June 12, 1996, Lilia was in front of the house attending to her children when she heard the sound of a
boy crying. Curious, Lilia went up the stairway, her children in tow. The open door of the upper floor allowed Lilia to witness appellant
beating two-year old Mark Anthony Fernandez. From a distance of less than three arms length, Lilia saw appellant hit various parts of the
boys body with a piece of wood, about 14 inches in length and 2 inches in diameter. Appellant also banged the head of the boy against
the wooden wall.

The beating went on for about one hour. Lilia then saw appellant carry the boy down the house to bring him to the hospital. The two-
year old was already black and no longer moving.[4]

Eight-year old Roberto Fernandez is the elder brother of the victim, also known as Macky. According to Roberto, Macky had
scattered his feces all over the house. Appellant, whom Roberto called Kuya Chito, thus beat Macky with a belt, a hammer and a 2x2
piece of wood. Roberto could not do anything to help his brother because he was afraid Kuya Chito might also beat him
up. When Kuya Chito brought Macky to the hospital, his little brother, who could barely talk, was not crying anymore.[5]

Roberto identified the two pieces of wood[6] that appellant allegedly used in beating the victim. He also identified the T-shirt[7] that
Macky wore when he died.

A certain Alice Valerio from the Galang Medical Hospital informed PO3 Paul Dennis Javier that a boy had been admitted
there. When PO3 Javier went to the hospital, he found the boy already dead. He observed that the child had wounds on the left middle
finger, the right index finger and both feet. The child also had lacerations in the upper lip and contusions all over his head and body.

PO3 Javier proceeded to appellants house at No. 2001, Batangas Ext., Tondo, Manila. Human feces and fresh blood splattered on the
floor. PO3 Javier recovered from the house the broken wooden sticks, the steel hammer,[8] which were allegedly used to beat up the boy,
as well as a bloodstained white T-shirt.

PO3 Javier then went to the house of appellants sister in Del Fierro St., Tondo, who informed him of matters relative to
appellants identification. Thereafter, the police conducted a search operation in Cavitewhere appellants mother lived but they did not
find him there. Later that afternoon, PO3 Javier learned that appellant had surrendered to Station 3 of their district.

The following day, a staff member of the television program Magandang Gabi Bayan turned over to PO3 Javier a brown belt which
appellant allegedly also used in beating the victim. Roberto Fernandez, thevictims brother, had given the belt to the staff member.[9]

Dr. Manuel Lagonera, medico-legal officer of the NBI, conducted the postmortem examination of the victims body on June 12,
1996 at 4:40 p.m. He found that the boy had suffered many injuries, including three wounds at the head and the anterior chest, which
could have been inflicted with the use of blunt objects such as a piece of wood or a fist. The child could have been dead three to four
hours, or not more than eight hours, prior to the postmortem examination. Dr. Lagonera concluded that the victim died of bilateral
pneumonia secondary to multiple blunt traversal injuries or complication of the lungs due to said injuries.[10]The autopsy report of Dr.
Lagonera shows that Mark Anthony Fernandez sustained the following injuries:

EXTERNAL FINDINGS:

1. Multiple old scars, forehead.

2. Healing lacerated wound, left forehead.

3. Healed lacerated wound, above the left eyebrow, measuring 1.2x0.2 cm.

4. Healed linear abrasions, left cheek.

5. Lacerated wound, extending up to the mucous membrane of the upper lip, measuring 2 x0.3 cm.

6. Contussion (sic), left temporo-parietal region, measuring 6x5 cms.

 7. Healing lacerated wound, left zygomatic region, measuring 0.5x0.3 cm.

8. Contussion (sic), left jaw, measuring 1.5x1 cm.

9. Contussion (sic), right anterior thorax, measuring 17x12 cms.

10. Contussion (sic), right anterior forearm.

11. Lacerated wound, tip of the forefinger, right.

12. Old scar, upper 3rd , right anterior thigh.

13. Contussion (sic), right lower leg, above and below the knee measuring 9x5 cms.

14. Contussion (sic), left lower leg, above and below the knee, measuring 13x6 cms.

15. Hematoma, big toe, under the nail bed, right.

16. Contusso-abrasion, dorsum of the left foot, measuring 6x2 cms.

17. Contussion (sic), left posterior thorax, measuring 17x6 cms.

18. Contussion (sic), right postero-lateral thorax, extending up to the right lumbar region, measuring 13x6 cms.

19. Contussion (sic), right posterior forearm, measuring 24x8 cms.

20. Contussion (sic), left posterior forearm, measuring 22x7 cms.

21. Healing abrasion, right buttocks, measuring 2x0.5 cm.

22. Plucked finger nail, left middle finger, with hematoma of the nail bed.

23. Posterior hand, both swollen.

INTERNAL FINDINGS:

1. Presence of left sub-aponeurotic hematoma, temporo-parietal region and over the mid-occipital region.

2. Hematoma over the sternum and pectoralis muscles.

3. Both lungs showed patcy and confluent consolidations.

4. Small amount of rice porridge was recovered from the stomach.[11]

Felicisima M. Francisco, NBI forensic chemist, conducted an examination to determine the presence and grouping of human blood
found on the steel hammer, the wooden sticks, and the T-shirt that were sent to his office by P/Sr. Inspector Pedro Ramos Angulo, Jr. of the
Western Police District in Manila.[12] She prepared Report No. B-96-941 stating that Specimen No. 1 or the steel hammer, was positive for
human blood but insufficient for blood group. Specimen Nos. 2 (the broken wooden sticks) and 3 (the white T-shirt) were also positive for
human blood showing reactions of Group A.[13]

Only appellant, 40, a sidewalk vendor, testified for the defense. As stated earlier, appellant admitted killing the two-year old victim,
the son of his live-in partner. He and the boys mother had lived together for two years before the incident, starting when the boy was about
a year old. He claimed he enjoyed a harmonious relationship with his partner and that he killed the boy only because he was under the
influence of shabu, marijuana and Valium 10 at that time. Appellant professed that he began using drugs in 1974 and that he had also
taken drugs two weeks before the incident.

On June 12, 1996, appellant came upon Macky playing with his feces, scattering them all over the pillow, the bed sheets and the
curtains. Appellant scolded the boy, Putang-ina ka Macky! Bakit mo ikinalat ng ganyan ang tae mo? Halika, dadalhin kita sa baba para
hugasan! Appellant got hold of Macky but the boy struggled to free himself from appellants grasp. Appellant, still reeling from the Valium
10 he had just taken, became so angry that he picked up a broom with a wooden handle, and hit the boy. Appellant did not realize that
he had hit Macky hard until he saw the boy sprawled on the floor, breathing with difficulty. He dressed Macky and brought him to
the Galang Medical Center at the corner of Abad Santos Avenue and Tayabas Street, Manila. He prayed to God that nothing serious
would happen to the boy.

A lady doctor immediately attended to Macky. Appellant pleaded to the lady doctor to do all she can to save the child; otherwise,
he would be in serious trouble. After examining the child, the doctor told appellant that she could not do anything more Macky was
dead. The same day, appellant surrendered to the police. He was brought to the Homicide Section at 3:00 p.m.

Explaining his change of plea, appellant clarified that the killing of the boy was "accidental." He reiterated that he was under the
influence of drugs, which he had taken one after the other. He was a drug dependent and, in fact, had been confined at
the Tagaytay Rehabilitation Center. He said he was conscious when the incident happened but he simply did not realize that he had hit
the child hard with the brooms wooden handle. He denied having hit the boy with a hammer or having banged his head against the
wall. He hoped the trial court would be lenient with him because of his voluntary surrender. He prayed that the court would not impose
upon him the death penalty.[14]

Nevertheless, on July 3, 1998, the trial court promulgated its decision, the dispositive portion of which reads:
WHEREFORE, this Court finds the accused, Emelito Sitchon y Tayag, guilty beyond reasonable doubt of the crime of murder and is
sentenced to suffer the death penalty and to pay the costs. The accused is further ordered to pay the mother of the victim Christina
Tabora, moral and nominal damages in the respective sums of P100,000.00 and P50,000.00, plus death compensation in the sum of
P50,000.00, with interest thereon at the legal rate from this date until fully paid.

SO ORDERED.[15]

The Court entertains little doubt that appellant is guilty of the killing of Mark Anthony Fernandez. Appellants guilt was adequately
established by the testimonies of Lilia Garcia and Roberto Fernandez, who both saw appellant beat Macky. These testimonies were further
corroborated by those of PO3 Paul Dennis Javier, Dr. Manuel Lagonera and Felicisima Francisco, as well as the various pieces of object
evidence.Indeed, appellant in open court admitted beating the poor child, which beating resulted in the latters death.

That appellant purportedly did not intend to kill the toddler would not exculpate him from liability. Article 4(1) of the Revised Penal
Code provides that criminal liability shall be incurred by any person committing a felony (delito) although the wrongful act done be
different from that which he intended. The rationale of the rule is found in the doctrine that el que es causa de la causa es causa del mal
causado (he who is the cause of the cause is the cause of the evil caused).[16]

Thus, where the accused violently kicked the sleeping victim in vital parts of the latters body, the accused is liable for the supervening
death as a consequence of the injuries.[17] Assuming, therefore, that appellant merely intended to inflict physical injuries upon the boy, he is
nevertheless liable for the death of the victim caused by such injuries.

The killing in this case was attended by treachery. There is treachery when the offender commits any of the crimes against persons,
employing means, methods or forms in the execution thereof which tend directly and especially to insure its execution without risk to himself
arising from the defense which the offended party might make.[18] It is beyond dispute that the killing of minor children who, by reason of
their tender years, could not be expected to put up a defense, is treacherous.[19]

Evident premeditation is absent. For the court to appreciate evident premeditation, the prosecution must prove: (a) the time the
accused decided to commit the crime; (b) an overt act manifestly indicating that he clung to his determination; and (c) sufficient lapse of
time between the decision and the execution to allow the accused to reflect upon the consequence of his act.[20] The prosecution failed
to establish any of these requisites.

The trial court incorrectly appreciated cruelty against the accused. The test in appreciating cruelty as an aggravating circumstance is
whether the accused deliberately and sadistically augmented the wrong by causing another wrong not necessary for its commission,
or inhumanly increased the victims suffering or outraged or scoffed at his person or corpse.[21] The nature of cruelty lies in the fact that the
culprit enjoys and delights in making his victim suffer slowly and gradually, causing him moral and physical pain which is unnecessary for the
consummation of the criminal act which he intended to commit.[22] The sheer number of wounds, however, is not a test for determining
whether cruelty attended the commission of a crime.[23]

The prosecution did not show that appellant enjoyed inflicting injuries upon the victim. The inordinate force employed by appellant
appears to have been caused not by any sadistic bend but rather by the drugs that diminished his capacity.

The trial court also considered intoxication as an aggravating circumstance. The Solicitor General defends this ruling, contending that
appellants habitual drug addiction is an alternative circumstance analogous to habitual intoxication under Article 15 of the Revised Penal
Code:

Intoxication of the offender shall be taken into consideration as a mitigating circumstance when the offender has committed a felony in a
state of intoxication, if the same is not habitual or subsequent to the plan to commit said felony; but when the intoxication is habitual or
intentional, it shall be considered as an aggravating circumstance.

The Court does not agree. Article 13 of the Revised Penal Code provides a list of mitigating circumstances, which work to reduce the
accuseds penalty. Article 13(10) allows courts to consider any other circumstance of a similar nature and analogous to those mentioned
therein. Neither Article 14 of the same Code on aggravating circumstances[24] nor Article 15 on alternative circumstances,[25] however,
contain a provision similar to Article 13(10). Accordingly, the Court cannot consider appellants drug addiction as an aggravating
circumstance. Criminal statutes are to be strictly construed and no person should be brought within their terms who is not clearly within
them.[26]

Appellant maintains that his plea of guilt mitigates his criminal liability. On this matter, this Court said in People v. Ramos:[27]

To effectively alleviate the criminal liability of an accused, a plea of guilt must be made at the first opportunity, indicating repentance on
the part of the accused. In determining the timeliness of a plea of guilty, nothing could be more explicit than the provisions of the Revised
Penal Code requiring that the offender voluntarily confess his guilt before the court prior to the presentation of the evidence for the
prosecution. It is well-settled that a plea of guilty made after arraignment and after trial had begun does not entitle the accused to have
such plea considered as a mitigating circumstance.

As appellant changed his plea only after the prosecution had rested its case and just when he was just about to testify, said mitigating
circumstance is unavailing.

The trial court credited appellant with the mitigating circumstance of voluntary surrender. For voluntary surrender to be appreciated,
these elements must be established: (1) the offender has not been actually arrested; (2) he surrendered himself to a person in authority or
an agent of a person in authority; and (3) his surrender was voluntary.[28] It is sufficient that the surrender be spontaneous and made in a
manner clearly indicating the intent of the accused to surrender unconditionally, either because he acknowledges his guilt or he wishes to
save the authorities the trouble and expense which will necessarily be incurred in searching for and capturing him.[29]
 Appellant has failed to adequately prove voluntary surrender. While he claimed that he surrendered to the police on the same day
that the victim was killed, he did not detail the circumstances like the time and place of such surrender. Neither did appellant state to
whom he surrendered. He did not indicate if the person was a person in authority or an agent of the latter. PO3 Javiers testimony that he
learned of appellants alleged surrender is hearsay and does not serve to corroborate appellants claim.

The Court, however, discerns no intention on the part of appellant to commit so grave a wrong against his victim. Appellants intention
was merely to maltreat the victim, not to kill him. When appellant realized the horrible consequences of his felonious act, he immediately
brought the victim to the hospital.[30] Sadly, his efforts were for naught.

In view of the attendance of the aggravating circumstance of treachery, the killing of the victim is qualified to murder, punishable
under Article 248 of the Revised Penal Code by reclusion perpetua to death.The murder was attended by the mitigating circumstance of
lack of intention to commit so grave a wrong and there is no aggravating circumstance. Hence, the lesser penalty of reclusion
perpetua must be imposed upon appellant.[31]

Appellant is liable for civil indemnity of P50,000.00 without proof of damages.[32] Moral damages that are recoverable for the mental
anguish or emotional distress suffered by the heirs of the victim cannot be awarded here as the prosecution did not present any evidence
to justify its award.[33]

WHEREFORE, accused-appellant Emelito Sitchon y Tayag is found GUILTY beyond reasonable doubt of Murder, as defined and
punished by Article 248 of the Revised Penal Code, and is sentenced to suffer the penalty of reclusion perpetua. He is ordered to pay the
heirs of Mark Anthony Fernandez civil indemnity in the amount of P50,000.00.

SO ORDERED.

[G.R. No.134847. December 6, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff- appellee, vs. RUBY MARIANO y LARA and RUTH MARIANO y LARA, accused-appellants.

DECISION

PER CURIAM:

Heinous crimes are grievous, odious and hateful offenses which, by reason of their inherent wickedness, viciousness, atrocity and
perversity, are repugnant to the common standards and norms of decency and morality in a just, civilized and ordered society. [1] To
this genre belong the acts charged in the instant case - a bizarre and nauseating tale of outrageous cruelty and brutality. The Court is now
called upon to determine whether the accused are responsible therefor.

Driven by grinding poverty in her home province and lured by the prospect of a lucrative employment in the big city, Michelle Priol,
then only sixteen (16), left home for Manila in January 1996 to work as a domestic help. Soon enough Michelle found herself hired at the
household of the sisters Ruth Mariano and Ruby Mariano in Bambang, Pasig City.

Jenny Priol, Michelle's older sister, testified that she often visited Michelle at the Mariano.residence. However, whenever she would visit
Michelle, she and her sister could not freely talk as Ruth and Ruby were always hovering about.[2] Apparently unhappy with the manner she
was allowed to visit Michelle - they being constantly watched by the Mariano sisters and denied their privacy - Jenny never went to her
sister again after her last visit in November 1996.[3] Sometime afterwards, Ruth and Ruby brought Michelle to her sister Jenny to complain to
her that their rice cooker no longer functioned and heaped the blame on Michelle. On that occasion Jenny noticed that Michelle's hair
was unevenly cut to the scalp. When asked what happened, Michelle told her that it was Ruby who gave her the ugly
haircut.[4] Concerned with the condition of her sister, Jenny confronted Ruby. But the latter angrily replied: "Why are you so bold to ask me
that question; why don't you ask your sister!"[5] Jenny then told Ruby that she was going to take her sister back from them but the furious
Ruby hurriedly left with Ruth, taking Michelle with them. That was the last time Jenny saw her younger sister alive.

On 17 August 1997 at around 6:00 o'clock in the evening, SPO2 Edgardo Hernandez of the Pasig Police Station received an
anonymous call reporting that a woman was seen in Bambang, Pasig City, carrying a rectangular box with a human leg protruding. The
caller further informed SPO2 Hernandez that the woman then placed the box inside the compartment of a car bearing plate number UPR-
561.[6] On the basis of this information SPO2 Hernandez together with SPO1 Ruben Fidelino immediately conducted a "stake-out and
surveillance operation" in the vicinity of Bambang as reported. After a couple of minutes, the police officers spotted two (2) women
boarding a car with the reported plate number. They turned out to be accused-appellants Ruth Mariano y Lara and Ruby Mariano y
Lara.[7] The vehicle was owned and driven by Ruby. The law enforcers, riding in their patrol car with SPO1 Fidelino on the wheels, followed
the vehicle. But the women, perhaps sensing that they were being trailed, drove fast. Alarmed by the suspects' reaction to their presence,
the policemen sounded their siren. After a brief chase, the officers overtook the suspects' vehicle and blocked its path. SPO2 Hernandez
and SPO1 Fidelino alighted, from their patrol car and introduced themselves as police officers. They ordered Ruth and Ruby to alight from
their vehicle.[8]

The lawmen then announced that they would be conducting a visual search of the luggage compartment of the vehicle. Initially,
Ruby refused saying that only dirty clothes were in the compartment but later relented the police officers insisted. [9] Upon opening the
compartment, SPO2 Hernandez was greeted by a putrid odor emanating from a decomposing body inside the box. Ruth and Ruby
identified the body as that of their maid Michelle Priol.[10] Ruth and Ruby were then arrested and taken to the Pasig Police Station. Their
vehicle was driven to the station by SPO2 Hernandez.
 Senior Police Inspector Emmanuel L. Aranas, Medico-legal Officer of the PNP Crime laboratory, conducted an autopsy on the
cadaver of Michelle. The result was appalling and beyond belief. The body was found to be poorly nourished and already in a state of
decomposition. The skin and underlying soft tissues on the chest appeared to have been gnawed by rats apparently attracted to the
exposed scalded flesh resulting from the repeated splashing of boiling water, and that the victim had died two (2) to three (3) days prior to
the autopsy. The autopsy findings were: (a) healed and healing lacerated wounds on the upper lip caused by hard blunt object or fist
blows healed lacerated wound on the lower lip; (c) multiple lacerated swelling wounds on the right and left ear; (d) two (2) healing
wounds on the left illiac region; and, (e) the cause of death was multiple traumatic wounds, and first and second degree scalding burns on
the head, trunk, upper and lower extremeties comprising about 72% of the body surface, caused by hot liquid within the range of boiling
point inflicted at various times prior to the death of the victim.[11]

With the foregoing findings, Ruth and Ruby were charged with murder. Ruth denied the charge claiming that the victim "died
because she got sick, and not because I mauled her." [12] Nevertheless, by her own narration and admission during the trial, Ruth described
in lurid details what really happened to Michelle. According to Ruth, Michelle was kind, industrious and respectful at first. However,
sometime November 1996 she and her sister Ruby caught Michelle stealing money and jewelry from their bedroom. Thus, they brought her
to the police but later desisted from prosecuting Michelle when she pleaded for a second chance and promised that she would not do it
again.[13] After that incident, Michelle's attitude changed completely. Ruth claimed that she often caught her stealing money from them
and destroying the appliances whenever she cleaned the house, and that whenever she scolded Michelle she would answer back,
triggering a fight between them.[14]

Ruth confessed in her testimony that she doused boiling water on Michelle several times whenever she was angry. [15] In those
occasions, according to her, they were quarrelling and Michelle would fight back.[16] Ruth further said that only by pouring boiling water on
Michelle could she (Ruth) "pacify her (and stop her) from fighting back."[17]

Ruth likewise admitted having pulled Michelle's hair and banged her head (inuumpog ang ulo),[18] and that in the month of July 1997
alone they fought at least six (6) times. She added that she was remorseful afterwards for what she had done and treated Michelle's seared
flesh with antibiotics and washed her wounds with guava leaves. As if explaining the fresh-looking wounds on the body of Michelle, Ruth
said that Michelle sometimes scratched her wounds thereby removing the scabs and exposing the fresh wounds. But by August 1997
Michelle lost her appetite and her condition started to deteriorate. Not long thereafter, she died. Ruth further testified, that when she was
about to wake Michelle up in the morning of 17 August 1997 she discovered Michelle's body already bent and flexed
forward (nakabaluktot) lying in bed, lifeless.[19] So she panicked and hurriedly placed the body in a box, which she then loaded inside the
luggage compartment of Ruby's car. According to Ruth, she was afraid that her 74-year old mother who was suffering from a heart ailment
would see the body, thus she concealed the corpse in the trunk of the vehicle.[20] When Ruby arrived that evening, Ruth met her at the
gate of their house and told her that she had a problem.Ruth then asked Ruby to drive and promised to tell her about it on the way. It was
then that they were apprehended by elements of the Pasig Police force.

On 22 June 1998 Ruth arid Ruby were convicted of murder by the trial court. Accordingly, Ruth was sentenced to death while Ruby
was found guilty as an accomplice and sentenced to reclusion temporal. The trial court explained its Decision -

With such evidence on record, there is no doubt that Ruth was responsible for the death of Michelle Priol and the killing was aggravated
with (sic) cruelty making it a crime of murder. Splashing boiling water six (6) times a month, even when the previous injuries were not yet
healed, is cruelty of the highest order. Splashing boiling water while the previous scalding burns were not yet healed was deliberately
done. Such act was inhumanly augmenting the suffering of the victim. Ruth Mariano admitted this in her oral testimony and in her counter-
affidavit x x x x therefore, Ruth Mariano should be held to answer for the crime of murder as defined and penalized under Article 248 of the
Revised Penal Code x x x x

As to the liability of Ruby Mariano, the evidence appears to be circumstantial. [She] knew of the death of Michelle Priol prior to the time her
body was put in a box and loaded in the car x x x x she [was] living with Ruth in the same apartment and as such, that place is not too big
not to see or know that a member of the household is (sic) dead.

Moreover, as admitted by Ruth Mariano in her testimony in Court that she poured boiling water on Michelle Priol six (6) times a month. That
alone must have been known to Ruby Mariano. For her failure to prevent Ruth from pouring boiling water on Michelle Priol, which
according to Dr. Aranas was the cause of Priol's death, that constitute cooperation on her part in killing Michelle Priol.

All the foregoing circumstances taken together constitute violation of Article 18 of the Revised Penal Code, hence, Ruby Mariano is liable
as an accomplice.

Considering that the act of putting the cadaver of victim Michelle Priol in a box and loading it in the baggage compartment of a car is an
outraging act, or, an act of scoffing at her person or corpse which is an aggravating circumstance coupled with evident premeditation
and taking advantage of superior strength, the fact that the accused Ruth Mariano is a big buxom matured woman while the victim Priol
was a slim teenager, such aggravating circumstances, and there being no mitigating circumstance, the imposition of the death penalty
would be proper as against accused Ruth Mariano y Lara.[21]

Hence, this automatic review of the death penalty imposed by the trial court.

The errors assigned by accused-appellants in their brief may be subsumed under the basic contention that the trial court erred in
convicting them as principal and accomplice to the crime of murder notwithstanding the fact that the prosecution evidence was grossly
insufficient to prove their guilt beyond reasonable doubt.

Aware that the life of a human being is here at stake, we have carefully examined every piece of evidence on record as well as the
arguments raised by accused-appellants in their pleadings no matter how specious and ridiculous they may appear to be, but we fail to
find any compelling reason to overturn the findings of fact and conclusions of the court a quo, except as may be stated hereunder.
 First, on the criminal liability of Ruth Mariano. The defense at once crumbles in the face of accused-appellant's own admission in open
court that she employed violence on Michelle, dousing her with boiling water and battering her into insensibility in the course of their
supposed quarrels. She virtually painted in her testimony a harrowing portrait of the barbaric episode culminating in the death of the victim,
thus -

A: Whenever I scolded her, she became angry and told me that I'm (sic) not the one who is (sic) paying her salary and I am
(sic) "masungit."

Q: And what else transpired, if any?

A: We have (sic) exchanges of word and that started our quarrel.

Q: When you said quarrel, what do you mean quarrel, just by exchanging words or what? You have any physical contact?

A: We were engaged in physical fight.

Q: What else happened, if any?

A: If she fought back and I'm (sic) being hurt and if I'm (sic) already angry, I splashed (nasasabuyan) her with boiling water x x x x[22]

Q: When for the first time did you have any occasion of splashing hot water on the person of Priol?

A: July 1997.

Q: When was the second time?

A: I cannot remember.

Q: Also in the month of July?

A: Every time she fought against me.

Q: When was the third time?

A: I cannot remember anymore.

Q: More or less, how many times did you splash her with hot water?

COURT: Hot or boiling water?

PROSECUTOR LEONARDO: Boiling water.

A: Twice (2x) x x x x[23]

Q: You splashed her frontally?

A: Yes, Ma'am.

Q: Facing each other?

A: Yes, Ma'am xxxx

Q: She does not run away when you saw her holding the airpot?

A: When I splashed her she told me, that is (sic) enough, I will (sic) not fight anymore.[24]

Q: Just answer my question.

A: No, your honor.

Q: She waits (sic) until you poured the boiling water on her?

A: Yes, your honor.

Q: And when she tried to pull your hair, what do you do?

A: I pulled her hair also and sometimes banged (inuumpog) her head.[25]

Accused-appellant's brutality was confirmed by Dr. Emmanuel L. Aranas who concluded in his autopsy report that the cause of death
of the victim was "multiple traumatic wounds, and first and second degree scalding burns covering 72% of the body surface," which were
the very same injuries accused-appellant admitted she had inflicted on the victim. Dr. Aranas testified -

Q: And after conducting the examination, what was the cause of death that you found?

A: Well, the cause of death Ma'am, is the multiple traumatic injuries, as well as the scalding burns, first to second degree recovering 72%
of the surface area.

Q: Combined together?

A: Yes, your honor. All these are contributory to the death of the deceased.[26]

These medical findings when combined with accused-appellant's judicial admission, certainly wove a tight web of evidence as to
accused-appellant's culpability. They clearly established her guilt to a moral certainty, for which she could not escape punishment.
 Accused-appellant however, by way of avoidance, maintains that she did not kill the victim, insisting that the latter "died because
she got sick, and not because I mauled her."

The Court is not persuaded. It is evident that the death of the victim was the direct, natural and logical consequence of the injuries
she sustained in the hands of accused-appellant Ruth Mariano. The wounds inflicted on the victim were of extremely dangerous nature,
i.e., calculated to destroy life, although they did not immediately result in the victim's death. A person is to be held to contemplate and be
responsible for the natural consequences of her own acts. If she inflicts wounds of such gravity as to put the life of the victim in jeopardy,
and death follows as a consequence of her felonious and wicked acts, it does not alter the nature nor diminish the criminality of the acts to
prove that other causes cooperated in producing the fatal result. Es que es causa de la causa es causa del mal causado. He who is the
cause of the cause is the cause of the evil caused.

Accused-appellant further asserts that (a) her acts of'pouring boiling water on Michelle were accidental; (b) she was unaware of the
effects or danger of pouring boiling water on a human being; and, (c) she treated the wounds and burns of the victim with antibiotics
(Bactrim Forte) and washed it with guava leaves until she got well.

The artificiality of these assertions is self-evident. They are but fabrications to explain away the numerous mortal wounds of the
victim. As to the alleged accidental pouring of boiling water, the physical evidence shows that the victim suffered first and second degree
scalding burns covering 72% of the body surface, caused by accused-appellant's repeated acts of pouring boiling water on the victim
while they were allegedly embroiled in a quarrel. Clearly, the sheer number, and severe nature and extent of the wounds suffered by the
victim attest to their deliberate infliction.

As regards her claim that she was unaware of the effects or danger of pouring boiling water on a human being, accused-appellant
must have seen how the boiling water she poured the first time on Michelle seered the flesh of the victim, permanently disfiguring her body
even as she agonized in pain. Accused-appellant, who was thirty-four (34) years old then, was not shown to be a person of diminutive
intelligence as not to realize the lethal effects of repeatedly dousing boiling water on a human being. Neither can we attach any
importance to her pretension that she administered antibiotics and herbal medicine on the burns of Michelle until she recuperated, for it is
contrary to the findings of Dr. Aranas who observed that there was no evidence of medical intervention notwithstanding the character and
number of the victim's injuries.[27]

To compound accused-appellant Ruth Mariano's woes, her confessed act of putting the lifeless body of Michelle in a box and
loading it in the luggage compartment of a car is obviously inconsistent with her profession of innocence. As observed by the Solicitor
General, to which we agree, "an innocent person would have lost no time in reporting to the police her discovery, right in her own house, of
the death of a household member instead of taking pains in concealing it."[28]

Quite obviously, accused appellant exceeded the limits of her credibility, as she was plainly incredible. Her attempts to lessen the
impression of sadism and viciousness of her crime only assault the intelligence of this Court. We are not that naive and gullible as the
defense perhaps thought.

Second, on the complicity of accused-appellant Ruby Mariano. There is no solid evidence on record effectively linking accused-
appellant Ruby Mariano to the gruesome killing of Michelle Priol. There is no showing that she ever laid hands on the deceased nor was she
ever seen helping her sister Ruth on those occasions when Ruth reportedly manhandled Michelle, nor was there any positive act of assent
or cooperation on her part with Ruth ever satisfactorily established or proved by the prosecution. All that can be gathered from evidence
are: (a) Ruth and Ruby were staying with Michelle in the same apartment, together with their 74-year old mother and Ruby's children; (b)
the victim had been dead for two (2) to three (3) days when placed in the car; and, (c) Ruby owns the vehicle where the body of the
victim was concealed and was in fact driving the vehicle when the police intercepted them and found the body of Michelle in the trunk of
their vehicle. While these circumstances strongly indicate that Ruby had knowledge of what her sister Ruth did to Michelle, they are too
insufficient to support a finding that Ruby had something to do with the crime so that she should likewise be answerable. With her nominal
role, we cannot conscientiously declare that Ruby was a principal or even an accomplice in the crime. The presumption of innocence in
her favor has not been overcome by proof beyond reasonable doubt.

We cannot agree with the Solicitor General that Ruby should have been convicted as an accessory after the fact -

x x x x since her act of driving the car where the corpse of Michelle was hidden, her resistance to stop the car when chased by the police
and to immediately open the luggage compartment as requested by the police, her act of lying to the police by claiming that the box in
the compartment contained only dirty clothes, and her refusal to open said box sufficiently indicate knowledge of the crime and
assistance to Ruth Mariano in concealing the corpus delicti to prevent its discovery.

Accused-appellant Ruby Mariano is the sister of accused-appellant Ruth Mariano. As such, their relationship exempts appellant Ruby
Mariano from criminal liability under Art. 20 of The Revised Penal Code -

Art. 20. Accessories who are exempt from criminal liability. - The penalties prescribed for accessories shall not be imposed upon those who
are such with respect to their spouses, ascendants, descendants, legitimate, natural and adopted brothers and sisters, or relatives by
affinity within the same degrees, with the single exception of accessories falling within the provisions of paragraph 1 of the preceding
article (underscoring supplied).

The reason for exemption is obvious; it is based on ties of blood and the preservation of the cleanliness of one's name, which compels
one to conceal crimes committed by relatives so near as those mentioned in the above-quoted article. This Court is thus mandated by law
to acquit accused-appellant Ruby Mariano.

Third, the crime committed by accused-appellant Ruth Mariano was evidently murder, the killing of the victim being qualified by
cruelty. The autopsy report of Dr. Aranas abundantly shows irrefutable evidence of cruelty -
FINDINGS: Poorly nourished, fairly developed female cadaver, in the beginning stage of decomposition. Embalmed. The skin and
underlying soft tissues on the chest gnawed by small animals. HEAD, TRUNK AND EXTREMITIES: Healed lacerated wound, upper lip,
measuring 1 by 0.7 cm., 1.5 cm., right of the anterior midline; Healing lacerated wound, upper lip, measuring .07 by .3 cm., left of the
anterior midline; Healed lacerated wound, non-coaptated, lower lip, measuring 1 by 1 cm., just left of the anterior midline; Multiple
lacerated wounds, right ear, with multiple contusions and swelling; Multiple lacerated wounds, left ear, with multiple contusions and
swelling.

CONCLUSION: Cause of death is multiple traumatic injuries and scalding burns, 1st and 2nd degrees, 72% of the body surface area.

The wounds and scalding burns listed in the autopsy report were inflicted at different times but did not immediately result in death, as
some of the wounds were still in the process of healing at the time of the autopsy. This clearly suggests that the victim was still alive even
after those injuries were sadistically and inhumanly inflicted on her. The nature and extent of those injuries undoubtedly caused terrible
sufferings on the victim for a long period of time resulting in a slow, painful death. Explaining his medical findings on the cadaver of the
victim, Dr. Aranas testified -

Q: In such a situation where there are several injuries, would you tell the Court how long after the infliction of those injuries will the victim
die?

A: Well, your Honor, there is evidence of a slow regression of the physical condition of the deceased, so, the moment that injuries were
inflicted on her a few days or may be a week prior to death, there is already a regression of the body of the deceased
considering the presence or the observation of a collapsed lung and the presence of yellowish fluid on the lungs. This only means
that there was already a slow regression on the physical condition.

COURT: In a layman's language, what do you mean by slow regression?

A: Well, your Honor, there is an evidence of the process of weakening of the system of the body and slowing down the function of the
vital organs of the deceased.

Q: In other words, you would like to tell the Court that the victim has suffered for a long time before she actually died?

A: Precisely, your Honor.

Q: Can you tell the Court, with the injuries that you have found in the body of the victim, how long did that victim suffer before she
died?

A: Well, your Honor, there are healed wounds and these would have been inflicted a week or more prior to the death; and there are
healing wounds and these were inflicted within a week prior to the death; there were fresh wounds which were inflicted may be a
few hours or day prior to the death. So, she has been suffering for quite a long time prior to the death.[29]

Indeed, to the trained eye of medico-legal specialists, the inanimate remains of the dead give an eloquent testimony of their own,
and that is true even of the young victim, Michelle, who in life could not have been as articulate. The test in appreciating cruelty, as a
qualifying circumstance is whether the accused deliberately augmented the wrong by causing another wrong not necessary for its
commission, or inhumanly increased the victim's sufferings or outrage, or scoffed at his person or corpse.[30] The prosecution evidence
surmounted this test beyond any peradventure of doubt.

We also find that the circumstance of abuse of superior strength aggravated the killing of the victim. There was gross physical disparity
between the age, built and strength of accused-appellant Ruth Mariano viz-a-viz the victim Michelle. The former is a big and burly matured
woman in her thirties, several inches taller than the victim, and "who could subdue her [victim] even without a weapon." [31] While the latter
was merely a teenager, five (5) feet tall, slim and poorly nourished and weighed less than 100 pounds according to Dr. Aranas.[32] The
records also show that accused-appellant Ruth Mariano pulled the victim's hair, banged her head, and repeatedly doused boiling water
on her. On those occasions, the victim was not shown to be equipped with reasonable means of defense. Abuse of superior strength
depends upon the age, size and strength of the parties. To take advantage of superior strength is to purposely use excessive force out of
proportion to the means of defense available to the person attacked.[33]

Abuse of superior strength is a generic aggravating circumstance which is capable of being proved and taken into consideration in
imposing the sentence, even if it was not alleged in the information. The evidence of its existence merely forms part of the proof of the
actual commission of the offense and does not violate the constitutional right of the accused to be informed of the nature and cause of
the accusation against him.

We are not in accord with the trial court, however, in appreciating evident premeditation as an aggravating circumstance. The
essential elements of evident premeditation are: (a) the time when the offender determined to commit the crime; (b) an act manifestly
indicating that the culprit had clung to his determination; and, (c) a sufficient interval of time between the determination and execution of
the crime to allow him to reflect upon the consequences of his act.[34] These requisites must be established with equal certainty and clarity
as the criminal act itself before it can be appreciated as an aggravating circumstance.[35] In the instant case, the records are bereft of any
evidence to show the nature of accused-appellant Ruth Mariano's planning and preparation to slay her victim, or how much time had
elapsed before it was carried out.Evident premeditation must be based on external facts which are evident, not merely suspected, and
which indicate deliberate planning. Mere presumptions and inferences, no matter how logical or probable they might be, would not be
enough to sustain a finding of this aggravating circumstance.[36]

Article 248 of The Revised Penal Code, as amended by Sec. 6, RA 7659, punishes murder with reclusion perpetua to death. The
presence of the aggravating circumstance of abuse of superior strength warrants the imposition of the higher penalty of death on
accused-appellant Ruth Mariano in accordance with Art. 63 of The Revised Penal Code.[37] In addition, the same accused-appellant
should be made to pay the heirs of the victim P50,000.00 for civil indemnity, comformably with prevailing jurisprudence,[38] P35,000.00 for
actual damages, and P300,000.00 for moral damages. Moreover, since there is present an aggravating circumstance, and considering the
peculiar circumstances of this case, an award of P50,000.00 for exemplary damages is proper.
 Finally, we cannot write finis to this case without expressing our abhorrence to the manner by which the crime was
perpetrated. Accused-appellant Ruth Mariano's atrocious character, which transfixes the soul with such horror and revulsion, truly merits the
severest condemnation of this Court. By her savagery and ruthlessness - by a woman to another woman - she forfeits her rightful place in
civilized society. Michelle, even in death, is entitled no less to the full measure of justice as any other victim of a gruesome and senseless
killing.

WHEREFORE, the Decision of the court a quo of 22 June 1998 is MODIFIED. Accused-appellant Ruth Mariano is found guilty beyond
reasonable doubt of the crime of MURDER qualified by extreme cruelty and is sentenced to DEATH. She is further ORDERED to pay the heirs
of victim Michelle Priol y Beronio the following amounts: P50,000.00 for civil indemnity, P35,000.00 for actual damages, P300,000.00 for moral
damages, another P50,000.00 for exemplary damages, and to pay the costs.

As for accused-appellant Ruby Mariano, the Court finds the evidence insufficient to establish beyond reasonable doubt her guilt as
an accomplice in the commission of the said crime. Neither can she be held liable as an accessory after the fact, as she is exempt from
criminal liability by reason of her relationship with her co-accused pursuant to Art. 20 of The Revised Penal Code. Consequently, she is
ACQUITTED of the crime charged and her immediate release from custody is ordered unless she is being detained for some other lawful
cause. The Director of Prisons is DIRECTED to report to this Court the action taken hereon within five (5) days from receipt hereof.

Four (4) members of the Court, although maintaining their adherence to the view that RA 7659, insofar as it prescribes the death
penalty, is unconstitutional, nevertheless, bow to the ruling of the Court, by a majority vote, that the law is constitutional and that the death
penalty should accordingly be imposed. In accordance with Sec. 25 of RA 7659, amending Art. 83 of The Revised Penal Code, upon the
finality of this Decision, let the records of this case be forthwith forwarded to the Office of the President for the possible exercise of his
pardoning power.

SO ORDERED.