People vs. Ural G.R. No.

L-30801; 56 SCRA 138 The judgment of conviction was based on the testimony of
March 27, 1974 Brigido Alberto, a twenty-six year old former detention prisoner in
Buug, Zamboanga del Sur. He had been accused of murder and
Republic of the Philippines then set at liberty on June 9, 1966 after posting bail. He went to
SUPREME COURT Barrio Camongo, Dumalinao where his father resided. On July
Manila 31, 1966, he intended to go to his residence at Barrio Upper
Lamari, Buug but night overtook him in the town. He decided to
SECOND DIVISION sleep in the Buug municipal building where there would be more
security.

Upon arrival in the municipal building at around eight o'clock, he

G.R. No. L-30801 March 27, 1974 witnessed an extraordinary occurrence. He saw Policeman Ural
(with whom he was already acquainted) inside the jail. Ural was
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, boxing the detention prisoner, Felix Napola. As a consequence of
vs. the fistic blows, Napola collapsed on the floor. Ural, the
DOMINGO URAL, accused-appellant. tormentor, stepped on his prostrate body.

Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor
General Antonio A. Torres and Solicitor Vicente P. Evangelista
for plaintiff-appellee.
Vicente Cerilles and Emeliano Deleverio for accused-appellant.
Ural went out of the cell. After a short interval, he returned with a
bottle. He poured its contents on Napola's recumbent body.
Then, he ignited it with a match and left the cell. Napola
screamed in agony. He shouted for help. Nobody came to succor
him.

Much perturbed by the barbarity which he had just seen, Alberto

AQUINO, J.:p
This is an appeal of defendant Domingo Ural from the decision of
Judge Vicente G. Ericta of the Court of First Instance of
Zamboanga del Sur, convicting him of murder, sentencing him to
reclusion perpetua, and ordering him to indemnify the heirs of
Felix Napola in the sum of twelve thousand pesos and to pay the
costs (Criminal Case No. 3280).
left the municipal building. Before his departure, Ural cautioned
him: "You better keep quiet of what I have done" (sic). Alberto did
not sleep anymore that night. From the municipal building, he
went to the crossing, where the cargo trucks passed. He
hitchhiked in a truck hauling iron ore and went home.
Doctor Luzonia R. Bakil, the municipal health officer, certified that
the thirty-year old victim, whom she treated twice, sustained
second-degree burns on the arms, neck, left side of the face and
one-half of the body including the back (Exh. A). She testified that
his dermis and epidermis were burned. If the burns were not
properly treated, death would unsue from toxemia and tetanus
infection. "Without any medical intervention", the burns would
cause death", she said. She explained that, because there was
water in the burnt area, secondary infection would set in, or there
would be complications.
Napola died on August 25, 1966. The sanitary inspector issued a
certificate of death indicating "burn" as the cause of death (Exh.
B).
The trial court fittingly deplored the half-hearted manner in which
the prosecution (represented by Fiscal Roque and the private
prosecutor, Delfin Agbu) handled the case. It bewailed the
prosecution's failure to present as witnesses Juanito de la Serna
and Ernesto Ogoc, the detention prisoners who saw the burning
of Napola. They had executed a joint affidavit which was one of
the bases of the information for murder.1
It noted that Rufina Paler, the victim's widow, who was present in
court, was a vital witness who should have been presented as a
witness to prove the victim's dying declaration or his statements
which were part of the res gestae.2
In this appeal appellant's three assignment of error may be
condensed into the issue of credibility or the sufficiency of the
prosecution's evidence to prove his guilt beyond reasonable
doubt.
His story is that at around nine o'clock in the evening of July 31,
1966 he was in the municipal jail on guard duty. He heard a
scream for help from Napola. He entered the cell and found
Napola's shirt in flames. With the assistance of Ernesto Ogoc and
Anecio Siton, Ural removed Napola's shirt. Ural did not summon
a doctor because, according to Napola, the burns were not
serious. Besides, he (Ural) was alone in the municipal building.
Felicisima Escareal, Ogoc's common-law wife, whom the trial
court branded "as a complete liar", testified that she heard
Napola's scream for help. She saw that Napola's shirt was
burning but she did not know how it happened to be burned. She
said that Ural and Siton removed the shirt of Napola and put out
the fire.
Teofilo Matugas, a policeman, declared that he was relieved as
guard by Ural at eight-thirty in the evening of July 31st. Matugas
denied that Alberio was in the municipal building at eight o'clock.
The trial court held that Ural's denials cannot prevail over the
positive testimony of Alberio. It observed that Ural's alleged act of
removing Napola's burning shirt was at most an indication that he
was "belatedly alarmed by the consequence of his evil act" but
would not mean that he was not the incendiary.
Appellant Ural (he was thirty-four years old in March, 1969), in
assailing the credibility of Alberio, pointed out that he was not
listed as a prosecution witness and that he was convicted of
murder.
Those circumstances would not preclude Alberio from being a
credible witness. It should be noted that the accused was a
policeman. Ordinarily, a crime should be investigated by the
police. In this case, there was no police investigation. The crime
was investigated by a special counsel of the fiscal's office. That
might explain why it was not immediately discovered that Alberio
was an eyewitness of the atrocity perpetrated by Ural.
The testimonies of Felicisima Escareal, Ogoc's common-law wife,
and Policeman Matugas are compatible with the prosecution's
theory that Ural burned Napola's shirt. Ultimately, the factual
issue is: who should be given credence, Alberio or Ural? As
already stated, the trial court which had the advantage of seeing
their demeanor and behavior on the witness stand, chose to
believe Alberio. This Court, after a searching scrutiny of the
whole record, does not find any justification for disbelieving
Alberio.
This case is covered by article 4 of the Revised Penal code which
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 presumption is "that a
person intends the ordinary consequences of his voluntary act"
(Sec. 5[c], Rule 131, Rules of Court).
The rationale of the rule in article 4 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)."Conforme a dicha doctrina no alteran la relacion de
causalidad las condiciones preexistentes (como las condiciones
patologicasdel lesionado, la predisposicion del ofendido, la
constitucion fisica del herido, etc.); ni las condiciones
sobrevenidas (como el tetanos, la pulmonia, o la gangrena
sobrevenidos a consequencia de la herida)" (1 Cuello Calon,
Codigo Penal, 12th Ed., 1968, p. 335-336).
The similar rule in American jurisprudence is that "if the act of the
accused was the cause of the cause of death, no more is
required" (40 C.J.S. 854). So, where during a quarrel, the
accused struck the victim with a lighted lamp, which broke and
fell to the floor, causing the oil to ignite and set fire to the rug,
and, in the course of the scuffle, which ensued on the floor, the
victim's clothes caught fire, resulting in burns from which he died,
there was a sufficient causal relation between the death and the
acts of the accused to warrant a conviction of homicide (Williams
vs. U.S., 20 Fed. 2nd 269, 40 C.J.S. 854, note 90).
There is a rule that "an individual who unlawfully inflicts wounds
upon another person, which result in the death of the latter, is
guilty of the crime of homicide, and the fact that the injured
person did not receive proper medical attendance does not affect
the criminal responsibility" (U.S. vs. Escalona, 12 Phil. 54). In
the Escalona case, the victim was wounded on the wrist. It would
not have caused death had it been properly treated. The victim
died sixty days after the infliction of the wound. It was held that
lack of medical care could not be attributed to the wounded man.
The person who inflicted the wound was responsible for the result
thereof.
The crime committed by appellant Ural was murder by means of
fire (incendio) (Par. 3, Art. 248, Revised Penal Code; People vs.
Masin, 64 Phil. 757; U.S. vs. Burns, 41 Phil. 418, 432, 440).3
The trial court correctly held that the accused took advantage of
his public position (Par. 1, Art. 14, Revised Penal Code). He
could not have maltreated Napola if he was not a policeman on
guard duty. Because of his position, he had access to the cell
where Napola was confined. The prisoner was under his custody.
"The policeman, who taking advantage of his public position
maltreats a private citizen, merits no judicial leniency. The
methods sanctioned by medieval practice are surely not
appropriate for an enlightened democratic civilization. While the
law protects the police officer in the proper discharge of his
duties, it must at the same time just as effectively protect the
individual from the abuse of the police." U.S. vs. Pabalan, 37 Phil.
352).
But the trial court failed to appreciate the mitigating circumstance
"that the offender had no intention to commit so grave a wrong as
that committed" (Par. 3, Art. 13, Revised Penal Code). It is
manifest from the proven facts that appellant Ural had no intent to
kill Napola. His design was only to maltreat him may be because
in his drunken condition he was making a nuisance of himself
inside the detention cell. When Ural realized the fearful
consequences of his felonious act, he allowed Napola to secure
medical treatment at the municipal dispensary.
Lack of intent to commit so grave a wrong offsets the generic
aggravating, circumstance of abuse of his official position. The
trial court properly imposed the penalty of reclusion
perpetua which is the medium period of the penalty for murder
(Arts. 64[4] and 248, Revised Penal Code).
Finding no error in the trial court's judgment, the same is affirmed
with costs against the appellant.
So ordered.
Zaldivar (Chairman) and Fernandez, JJ., concur.
Antonio, J., took no part.
Separate Opinions
BARREDO, J., concurring:
Except for the unnecessary reference to the supposed statement
of the deceased to his wife and the joint affidavit of Ogoc and De
la Serna, all of which were not properly presented in evidence,
hence it is preferable not to mention them in order to avoid any
suspicion that our judgment has been influenced by factors other
than evidence duly presented in court, I concur.
Fernando, J., concurs.
Separate Opinions
BARREDO, J., concurring:
Except for the unnecessary reference to the supposed statement
of the deceased to his wife and the joint affidavit of Ogoc and De
la Serna, all of which were not properly presented in evidence,
hence it is preferable not to mention them in order to avoid any
suspicion that our judgment has been influenced by factors other
than evidence duly presented in court, I concur.
Fernando, J., concurs.
Footnotes
People vs. Amit G.R. No. L-29066; 32 SCRA 95 Due to the gravity of the offense charged, however, the Court
March 25, 1970 required additional evidence from the prosecution, which the
latter presented in the form of (1) the extrajudicial confession of
Republic of the Philippines appellant in Ilocano (exhibit A) and its translation into English
SUPREME COURT (Exhibit A-1) wherein he narrated in detail how the crime was
Manila committed; (2) the autopsy report (Exhibit B) describing the
injuries suffered by the victim as she resisted appellant's criminal
EN BANC advances against her honor; and (3) the medical certificate
(Exhibit C) describing the personal injuries suffered by the
appellant himself during the struggle put up against him by the
victim.
G.R. No. L-29066 March 25, 1970
On the basis of appellant's plea of guilty and the abovementioned
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, evidence, the trial court rendered judgment sentencing him "to
vs. suffer the supreme penalty of death, with the accessories
MARCELO AMIT, defendant-appellant. prescribed by law; to indemnify the heirs of the deceased Rufina
Arellano in the amount of P6,000.00, without subsidiary
Office of the Solicitor General Felix V. Makasiar and Solicitor imprisonment in case of insolvency, and to pay the costs."
Dominador L. Quiros for plaintiff-appellee. Pursuant to the provisions of Section 9, Rule 122 of the Revised
Rules of Court, said judgment was elevated to us for review.
Emilia Vidanes-Balaoing as counsel de officio for defendant-
appellant. While appellant does not question the correctness of the decision
under review in so far as it finds him guilty of the crime charged,
he claims, through his counsel de officio, that the penalty of death
imposed upon him should be reduced to reclusion perpetua in
PER CURIAM: view of the presence of three mitigating circumstances which the
trial court should have considered in his favor, namely: (1) plea of
Marcelo Amit was charged in the court below with the complex guilty; (2) voluntary surrender, and (3) lack of intention to commit
crime of rape with homicide described and penalized in Article so grave a wrong as the one actually committed.
335 of the Revised Penal Code, as amended. Arraigned with the
assistance of a counsel de officio, he pleaded guilty. The Solicitor General admits that the mitigating circumstances of
plea of guilty and voluntary surrender have been proven, but
denies that the mitigating circumstance of lack of intention to
commit so grave a wrong as the one actually committed was A: She bit me on a place a little below
similarly established. We agree with this latter contention. my shoulder and scratched me on my
breast, sir.
Appellant's contention — because of its nature, must necessarily
be judged in the light of the acts committed by him and the Q: When Rufina Arellano put up a little
circumstances under which they were committed. Should they resistance when you placed yourself
show a great disproportion between the means employed to on top of her, what did you do also?
accomplish the criminal act — on the one hand — and its
consequences — on the other — the mitigating circumstance A: I held her on the neck and pressed
under consideration must be considered in favor of the accused it downward, sir.
(U.S. vs. Reyes, 36 Phil. 904, 906-907). Otherwise, it should not.
xxx xxx xxx
In the case at bar, the following excerpts taken from appellant's
extrajudicial confession (Exhibit A-1, translation) give us an idea Q: The left cheek of Rufina Arellano
of the acts committed by him in executing the crime: even swelled, do you know how she
sustained it that caused it to swell?
Q: And what did Rufina Arellano do to
you when you made her lay down and A: I boxed her when she resisted, sir.
you immediately place yourself on top
of her? Q: What hand of yours boxed the left
cheek of Rufina Arellano?
A: She resisted a little, nevertheless I
was able to do sexual intercourse with A: My left hand, sir, for my right hand
her, sir. was holding her neck.

Q: In her act of resisting you, what did Q: So what was the position of Rufina
Rufina Arellano do to you? Arellano when your right hand was
holding her neck as you boxed her on
A: She bit me and scratched me, sir. the cheek with your left hand?

Q: What part of your body did Rufina A: Rufina Arellano was lying down on
Arellano bit and scratched? her back and I was on top of her, sir.
(pp. 23-24, rec.)
At the time of the commission of the crime, appellant was 32 Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar,
years of age, while his victim was 25 years his senior; his victim Castro, Fernando, Teehankee, Barredo and Villamor, JJ., concur.
resisted his attempt to rape her by biting and scratching him; to
subdue her, appellant boxed her and then "held her on the neck
and pressed it down" while she was lying on her back and he was
on top of her. These acts, We believe, were reasonably sufficient
to produce the result that they actually produced — the death of
appellant's victim. Consequently, what we said in People vs. Yu,
G.R. L-13780, promulgated on January 28, 1961, would seem to
apply:

The lack of intention to commit so grave a wrong as

that committed cannot be appreciated in favor of an
accused who employed brute force — choking a 6-
year old girl to death, who tried to shout while he
was raping her — intention being gathered from
and determined only by the conduct and external
acts of the offender, and the results of the acts
themselves.

The penalty of Death prescribed in the last paragraph of Article

335 of the Revised Penal Code, as amended by Republic Acts
Nos. 2632 and 4111 being an indivisible penalty, it has to be
imposed regardless of the presence of mitigating circumstances,
especially in a case like the present where, according to the
evidence of record, the crime was committed with the
aggravating circumstances of nighttime and abuse of superior
strength (first paragraph, Article 63, Revised Penal Code).

Moreover, the civil indemnity awarded by the trial court must be

increased to P12,000.00.

MODIFIED AS ABOVE INDICATED, the judgment appealed from

is affirmed in all other respects. With costs.
People vs. Regato G.R. No. L-36750; 127 SCRA 287
January 31, 1984
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-36750 January 31, 1984
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MIGUEL REGATO and JOSE SALCEDA, defendants-
appellants.
Solicitor General for plaintiff-appellee.
Jose S. Armonio for defendant-appellants.
RELOVA, J.:
For automatic review is the death sentence imposed on accused-
appellants Miguel Regato and Jose Salceda by the then Court of
First Instance of Leyte, Branch IV, in Criminal Case No. 12,
entitled "People vs. Regato, et al." for robbery with homicide.
They were also ordered to indemnify, jointly and severally, the
heirs of Victor Flores the sum of P12,000.00; the further sum of
P870.00; and each to pay one-third of the costs.
Prosecution evidence shows that about nine o'clock in the
evening of November 22, 1969, three persons called at the house
of Victor Flores at sitio Macaranas, Bo. Capierawa, Palo, Leyte
asking if they could buy cigarettes. Felicisima Flores, wife of
Victor, was then maintaining a small sari-sari store inside their
house. Upon hearing them, she stood up and, after lighting a
small kerosene lamp, opened the door of the house and
extended the lamp out to recognize the persons outside. She saw
accused Miguel Regato who was then at the porch and Jose
Salceda. As she kept on exposing the light at them Regato
approached Felicisima and struck her hand holding the lamp,
causing it to fall. Regato then pointed a gun at Felicisima who
moved backwards, towards the kitchen after which she jumped
out and ran to the house of Filomeno Pilmaco, a neighbor. She
told Pilmaco about the three persons who went up their house
and pointed a gun at her. She asked for help and she was told to
simply stay in the house while he and companions would rush to
the poblacion of Palo to inform the police of the incident
happening at sitio Macarinas. After Pilmaco and companions had
left for the poblacion, Felicisima heard and gun explosion from
the direction of their house.
In the meantime, Godofredo Flores, the 12-year old son of
Felicisima, who was sleeping in the sala was awakened by the
voice of the robbers asking the occupants to come down.
Godofredo observed that his mother was not in the house but
saw his father, Victor Flores, being dragged down the stairway by
Rito Ramirez and Miguel Regato. He saw also appellant Jose
Salceda take hold of Florencio (brother of Godofredo) who was at
the stairs, being brought inside the house. Appellant Salceda
then lighted the lamp which was then on the floor of the sala of
the house and then he brought Florencio inside the bedroom
where Godofredo was then hiding. Rito Ramirez and appellant
Regato in turn, brought Victor Flores inside the sala. Thereafter,
Regato hit Victor Flores with the butt of his gun and said: "Where
is your money? Where is your money? When Victor answered
that they did not have any, Rito Ramirez boxed Victor at the
mouth breaking one of his teeth.
The three — Ramirez, Regato and Salceda, did not notice
Godofredo in his hiding place by the door of the bedroom, and
the latter saw everything that transpired inside the house
because of the lighted lamp on the floor about a meter away.
While Victor Flores was being maltreated by Rito Ramirez and
appellant Regato to force him to reveal where their money was,
appellant Salceda was busy ransacking a trunk inside the
bedroom where he found a small box containing P870.00.
Salceda took the money, put out the light and went to the kitchen.
Ramirez then asked Salceda whether he was able to find the
money and upon being told that he did, Ramirez rebuked Victor
Flores: "You old man you are telling a he. You said you have no
money. " Victor Flores retorted: "You robbers With this remark,
Rito Ramirez shot Victor Flores following which the three —
Regato, Salceda and Ramirez rushed out of the house and fled.
After some minutes, Felicisima Flores went back to the house
and found her husband, Victor, bleeding. Things inside the
bedroom were scattered and their trunk opened. She found the
money inside the trunk gone. With the help of a nephew, they
brought Victor Flores to the poblacion of Palo. On the way, they
were met by the police patrol which proceeded to the scene of
the robbery.
The party of Victor Flores reached the municipal building of Palo,
Leyte about midnight of November 22 and few minutes
thereafter, he gave a written statement which is now marked as
Exhibit "C".
The following morning, Victor Flores was admitted at the Leyte
Provincial Hospital but due to severe hemorrhage, secondary to
gunshot wound, he died the same day.
Felicisima Flores was formally investigated by the police to whom
she gave her affidavit now marked as Exhibit "F". Jose Salceda,
on November 26, 1969, was brought to the police department as
a suspect in the case. He was Identified by Felicisima Flores.
Regato was likewise apprehended and a case against the three
— Miguel Regato, Jose Salceda and Rito Ramirez was filed for
Robbery with Homicide. The case was tried against Regato and
Salceda only because Rito Ramirez has remained at large.
The defense is denial and alibi Appellant Miguel Regato claimed
that on the night of November 22, 1969 he was in Bo. Gacao
Palo, Leyte attending to novena prayers for his late father-in- law,
Andres Dotado Among those present were Teodora Espina,
Alberto Maraño Rosario Regato and Nemesis Fuentes who
corroborated his testimony. Prayers started at 7:00 and ended
about 8 o'clock. Supper was then served until about 9:00 after
which they indulged in tuba 9 which lasted up to past 11 o'clock.
After the visitors had left, he (Regato) and family went to sleep.
Appellant Jose Salceda, on the other hand, testified that in the
morning of November 22, 1969 he was in Bo. Gacao, Palo to
transport palay that was to be harvested from the ricefield of
Solomon Castañares. Harvest was finished at 4 o'clock in the
afternoon and they actually left the ricefield an hour later for the
house of Castañares where he was asked to cook supper. After
eating supper, the group — five of them, indulged in a tuba
drinking spree until about 2 o'clock the following morning.
Both appellants denied participation in the acts charged in the
information.
In this appeal, appellants contend that the trial court erred (1)
when it denied Salceda's motion for new trial and did not acquit
him of the crime charged; (2) in convicting Regato of robbery with
homicide and not with simple robbery; (3) in not considering in
their favor the mitigating instance of lack of intent to commit so
grave a wrong as that committed, (4) in consider the aggravating
circumstance of nocturnity against them; and (5) in failing to
consider that the aggravating circumstance of craft is absorbed
by the aggravating circumstance of nocturnity.
Basis of the motion for new trial is the affidavit of appellant Miguel
Regato that his two companions in the commission of the crime
were Loreto Ramirez and Ernesto Mutsamuel (not Jose Salceda).
On this point, suffice it to say that this affidavit of a convicted co-
accused is a forgotten evidence and not a newly discovered one.
Appellants Regato and Salceda were duly represented by
counsel from arraignment until the promulgation of judgment and
all the while this proffered evidence (affidavit of Regato) was
already in existence and available to the defense. After their
conviction by the trial court, Regato would now want to free
Salceda. At any rate, the statement of Regato in the affidavit is
highly unbelievable and bears no earmark of sincerity. It is belied
by the positive declarations of eyewitnesses to the crime.
We find no merit in the second assigned error. Appellants, with
Ramirez, arrived together at the of Victor Flores and pretended to
buy cigarettes. When Felicisima Flores opened the door, they
went inside the house and demanded of Victor Flores to bring out
their money. When he refused, and Regato maltreated him, while
went inside the bedroom and ransacked the trunk where the
money was kept. Ramirez then inquired whether he found the
money and he answered in the affirmative.
It is true that the shooting of Victor Flores took place after the
money had been taken and it was only when Flores called them
"robbers" that Ramirez shot him. As aptly stated by the lower
court, "it is clear that the killing was done by reason or on the
occasion of the robbery, so that the accused are guilty of the
complex crime of robbery with homicide." (p. 18, Decision of
lower court).
Likewise, We find no merit in the contention that there was lack of
intent to commit so grave a wrong as that committed. Intention is
a mental process and is an internal state of mind. The intention
must be judged by the action, conduct and external acts of the
accused. What men do is the best index of their intention. In the
case at bar, the aforesaid mitigating instance cannot be
appreciated consider that the acts employed by the accused
were reasonably sufficient to produce the result that they actually
made — the death of the victim.
With to the fourth and fifth errors: nighttime and craft, the
evidence is clear that the crime was committed past 9:00 in the
evening which "the culprits had sought the hiding mantle of the
night in order to facilitate its commission." (Decision, lower court,
p. 19).
Craft involves intellectual trickery or cunning on the part of the
accused. Herein appellants, in order to enter the house of Flores,
shouted from the outside that they wanted to buy cigarettes
which induced the inmates to open the door for them. As hold
in People vs. Napili, 85 Phil. 521, gaining entrance by pretending
to buy cigarettes or drink water constitutes craft.
By and large, the conspiracy among appellants and Ramirez in
the Commission of the crime is evident upon the facts as proven.
Their acts, collectively and individually executed, have
demonstrated the existence of a common design towards the SO ORDERED.
accomplishment of unlawful purpose and objective. The shooting
and death of Victor Flores bear as direct relation and intimate Fernando, C.J., Teehankee, Makasiar, Aquino, Concepcion, Jr.,
connection between the robbery and killing which occured during Guerrero, Abad Santos, De Castro, Melencio-Herrera, Plana,
and on the occasion of the robbery. Whether the latter be prior or Escolin and Gutierrez, Jr., JJ., concur.
subsequent to the former, there is no doubt that the complex
crime of robbery with homicide has been committed.

On the other hand, appellants' alibi must fall. In the first place,
Regato's submittal that he should have been convicted of simple
robbery with homicide, is an admission of his presence at the
scene of the crime contrary to his testimony that he was in his
house that evening of November 22, 1969 attending to novena
prayers for his late father-in-law. Secondly, to established an
alibi, it is not enough to prove that appellants were at some other
place when the crime was committed but must, likewise,
demonstrate that it was physically impossible for them to have
been at the place of commission at such time. The distance
between the place of the commission of the offense to the place
where appellants were supposed to be at the time is only 1½
kilometers, and these places are connected with passable roads
that could have facilitated the easy negotiation by the appellants
between their respective homes and the scene of the crime.
Appellants evidence on this point is not sufficient to overcome the
positive identification made by the prosecution witnesses —
Felicisima Flores and Godofredo Flores.

For lack of necessary votes, the death penalty cannot be

imposed.

WHEREFORE, the judgment appealed from is AFFIRMED,

except as to the penalty, which is hereby modified to reclusion
perpetua.
People vs. Callet G.R. No. 135701; 382 SCRA 43 May
9, 2002
FIRST DIVISION
G.R. No. 135701 May 9, 2002
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ELBERT CALLET y SABANAL, accused-appellant.
PUNO, J.:
The accused, ELBERT CALLET y SABANAL was charged with
Murder before the Regional Trial Court of Negros Oriental,
Dumaguete City, Branch 30. The crime was allegedly committed
as follows:1
"That on or about 5:00 o'clock in the afternoon of
September 15, 1996, at Barangay Tambulan, Tayasan,
Negros Oriental, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused with
intent to kill, evident premeditation and treachery, did then
and there willfully, unlawfully and feloniously attack,
assault and stab one ALFREDO SENADOR with the use
of a knife with which the said accused was then armed
and provided, thereby inflicting upon said victim the
following injury, to wit:
A stab wound measuring two (2) cm. in length, 0.3
cm. in width and eleven (11) cm. in deepness
located at the left side of the trunk, about two (2)
cm. above the left clavicular bone. The wound was
directed downward and slightly to the right.
which injury or wound caused the death of said ALFREDO
SENADOR shortly thereafter.
Contrary to Article 248 of the Revised Penal Code."
When arraigned on June 11, 1997, the accused pled "not
guilty."2
The prosecution presented the testimonies of Dr. Rogelio Kho,
Lecpoy Senador, Eduardo Perater, Manuel Gabonales and
Francisca Senador. For the defense, the accused, Elbert Callet,
PO3 Roy Balasabas, Barangay Captain Dominador Calijan and
Nilo Callet testified.
The evidence for the prosecution shows that on September 15,
1996, at 5:00 p.m., the victim, Alfredo Senador, his 12-year old
son, Lecpoy Senador, and Eduardo Perater were at the flea
market of barangay Tambulan, Tayasan, Negros Oriental. There
were many people in the vicinity. Some were playing cara y
cruz while others were playing volleyball.
Alfredo, Lecpoy and Eduardo were beside each other as they
watched a cara y cruz game. Alfredo sat close to the ground, with
his buttocks resting on his right foot. Lecpoy and Eduardo sat on
a piece of wood and on a stone, respectively.
Out of nowhere, the accused, Elbert Callet, appeared behind
Alfredo and stabbed the latter on the left shoulder near the base
of the neck with a 9-inch hunting knife. Instinctively, Alfredo stood
up and managed to walk a few meters. When he fell on the
ground, Lecpoy and Eduardo rushed to help him but to no avail.
Alfredo died shortly thereafter.
Manuel Gabonales was also at the flea market at that time. At
5:00 p.m., he saw people running away from the place where
there was a cara y cruz game. Next, he saw Alfredo and the
accused. Alfredo was soaked in blood while the accused was
running towards the basketball court. He asked Alfredo what
happened to him. Alfredo replied that the accused stabbed him.
The accused was then standing at the basketball court. Manuel
helped Lecpoy and Eduardo carry Alfredo under a mango tree.
He thought of bringing Alfredo to the hospital when he saw blood
oozing from his mouth. After a moment, Alfredo died.
Dr. Rogelio Kho, Municipal Health Officer at Tayasan, autopsied
the body of Alfredo on September 16, 1996. The doctor found a
stab wound on the left shoulder of Alfredo, near the base of the
neck. He opined that the victim died due to "severe hemorrhage
and irreversible shock due to stab wound."3
The defense gave a different account of the stabbing incident.
Allegedly, at 3:00 p.m., the accused, Elbert Callet, played
volleyball near the flea market. After two (2) games, he stopped
playing. It was past 4:00 p.m. He stayed at the flea market and
watched as others played volleyball. While watching the game,
he was hit on the left side of the body by Alfredo's elbow. He
asked Alfredo why he hit him. Alfredo retorted, "Are you angry?"
Next, Alfredo grabbed his left arm and tried to twist it. He pleaded
with Alfredo to let go of his arm, but Alfredo warned that he would
be his third victim if he would get angry with him. As Alfredo was
pulling out a hunting knife from his waist, he (the accused)
managed to stab him first. Thereafter, he ran towards the
municipal hall to surrender.
Dominador Calijan, the Barangay Captain of Tayasan, happened
to be at the basketball court near the scene of the crime. He
encountered Alfredo along the road after the stabbing incident.
Alfredo had a stab wound on the lower nape. Calijan asked
Alfredo who stabbed him and the latter gave the name of the
accused. He directed his barangay tanods to arrest the accused.
Barangay tanods Nilo Callet and Jesus Dagodog were able to
catch up with the accused three (3) kilometers away from the
scene of the crime. He was still holding the hunting knife and
refused to surrender it for fear that the relatives of Alfredo would
retaliate. The barangay tanods escorted him to the municipal hall.
Along the way, they asked him why he stabbed Alfredo. The
accused replied that he could not help it and that everything
happened too fast. Upon reaching the municipal hall, the accused
surrendered the hunting knife. He was turned over to PO3 Roy
Balasbas for investigation.
After the trial, the accused was found guilty of murder.
The fallo of the trial court's decision4 states:
"WHEREFORE, finding the accused ELBERT CALLET Y
SABANAL guilty beyond a scintilla of doubt for the crime of
MURDER penalized under Article 248 of the Revised
Penal Code, taking into account the mitigating
circumstance of voluntary surrender without any
aggravating circumstance, the accused is hereby
sentenced to RECLUSION PERPETUA with all the
 accessory penalties provided under Article 41 of the Q: About that time 5:00 'clock in the afternoon on
Revised Penal Code. September 15, 1996, where were you and your
companions situated or stationed since you said you were
Accused is ordered to pay the legal heirs of Alfredo particularly at the flea market?
Senador the sum of Fifty Thousand Pesos (P50,000.00)
as indemnity for his death. xxx xxx xxx

Costs against the accused." A: We were in Tambulan.

Hence, the appeal. The accused contends that:5 Q: In what particular place were you at the flea
market?
"1. THE HONORABLE REGIONAL TRIAL COURT
GRAVELY ERRED AND COMMITTED GRAVE ABUSE IN A: In the place where there was a "cara y cruz".
FINDING THAT THE ACCUSED KILLED THE VICTIM
WITH TREACHERY; xxx xxx xxx

2. THE HONORABLE REGIONAL TRIAL COURT Q: What were you and your father as well as Eduardo
GRAVELY ERRED AND COMMITTED GRAVE ABUSE IN Perater doing at that moment at 5:00 o'clock on
FINDING THAT THE ACCUSED FAILED TO PROVE THE September 15 at the place where there was a game of
ELEMENTS OF SELF-DEFENSE; "cara y cruz"?

3. THE HONORABLE REGIONAL TRIAL COURT A: We were looking at the "cara y cruz".
GRAVELY ERRED IN FAILING TO CONSIDER THE
MITIGATING CIRCUMSTANCE THAT THE ACCUSED Q: While you were looking at the "cara y cruz" game,
DID NOT INTEND TO COMMIT SO GRAVE A WRONG." do you recall if there was an unusual incident that
happened?
We affirm. The conviction of the accused is clearly supported by
the evidence. A: Yes, there was.

Two (2) eyewitnesses positively identified the accused, Elbert Q: What was this unusual incident that
Callet, as the one who fatally stabbed the victim, Alfredo happened?
Senador. Eyewitness Lecpoy Senador testified as follows:6
A: My father was stabbed.
"(PROS. HERMOSA):
Q: Who stabbed your father? Q: And what eventually happened to him?

A: Elbert Callet. A: He fell down.

Q: Elbert Callet whom you just identified a while ago? Q: And then, what happened after he fell down?

A: Yes. A: We carried him to a place where there was a

mango tree.
xxx xxx xxx
xxx xxx xxx
Q: Where was Elbert Callet in relation to your
father when he stabbed your father? Q: What happened or what transpired after you
brought your father towards the mango tree?
A: At the back of my father.
A: My father died.
Q: What was the position of your father when he
was stabbed by the accused? Q: After stabbing your father, what did Elbert Callet
do if he did anything?
A: He was sitting.
A: He ran away.
Q: Where was your father hit if you know?
Q: What did he use in stabbing your father?
A: Left shoulder.
A: Hunting knife."
Q: What happened after Elbert Callet stabbed your
father? (emphases ours)

A: My father walked. Another eyewitness, Eduardo Perater, testified as follows:7

Q: Towards what place? "(PROS. HERMOSA):

A: Towards the area where there was a volleyball Q: All right, at about 5:00 o'clock in the afternoon of
game. that day, can you recall if there was an unusual incident
that happened?
A: Yes, there was. Q: Where was Elbert Callet situated when he
stabbed Alfredo Senador?
Q: What was that unusual incident?
A: At the back of Alfredo Senador.
A: There was a stabbing incident.
Q: Was there any argument between Alfredo
Q: Who was stabbed? Senador and Elbert Callet before Alfredo Senador was
stabbed?
A: Alfredo Senador.
A: There was none.
Q: Who stabbed Alfredo Senador?
xxx xxx xxx
A: Elbert Callet.
Q: How many times did Elbert Callet stab Alfredo
Q: The same Elbert Callet whom you just identified a Senador?
while ago in the courtroom?
A: Only one (1).
A: Yes.
Q: Was Alfredo hit when he was stabbed by Elbert
Q: What was the position of Alfredo Senador Callet?
when he was stabbed by Elbert Callet?
A: Yes.
A: He was sitting down.
Q: In what part of the body of Alfredo Senador
Q: Will you please demonstrate to us the manner how was hit?
Alfredo Senador was sitting down at the time when he was
stabbed by the accused in this case? A: In the left shoulder.

A: (Witness in squatting position, he was sitting with xxx xxx xxx

his buttock on his right foot).
Q: What happened after Alfredo Senador was hit by
xxx xxx xxx the stabbing of Elbert Callet?

A: He stood up.
 Q: What did Elbert Callet use in stabbing Alfredo one who is innocent of the crime."8 Significantly, there is no
Senador? showing that this young eyewitness has any ill motive to testify
falsely against the accused.
A: A hunting knife.
To be sure, even without the testimony of Lecpoy, the
xxx xxx xxx testimonies of Eduardo Perater and Manuel Gabonales would
suffice to convict the accused. They are disinterested
Q: What about Elbert Callet, what did he do after witnesses.9 Their identification of the accused as the assailant is
stabbing Alfredo Senador? beyond question.

A: He ran away. Still assailing the credibility of the eyewitnesses, the accused
points out that in the joint affidavit10 of Lecpoy and Eduardo, it
Q: What did he do with his knife which he used in was stated that the victim was "standing with his back facing
stabbing Alfredo senador? Elbert Callet." However, they contradicted their affidavit when
they testified at the trial that the victim was "sitting, with his
A: He carried it with him." buttocks resting on his right foot."

(emphases ours)
We give full faith and credit to the testimonies of Lecpoy and
Eduardo. Their testimonies were vivid with details. They were
clear and consistent with each other.
The accused laments that Lecpoy Senador is a biased witness,
being a son of the victim. We are not convinced.
The fact that Lecpoy is a son of the victim would not necessarily
make him untrustworthy. This Court has ruled that "(b)lood
relationship between a witness and the victim does not by itself
impair the credibility of witnesses. On the contrary, relationship
may strengthen credibility, for it is unnatural for an aggrieved
relative to falsely accuse someone other than the real culprit. The
earnest desire to seek justice for a dead kin is not served should
the witness abandon his conscience and prudence and blame
The cited inconsistency will not exculpate the accused. We quote
with approval the following observations of the trial court:11
"…In the instant case, the direct and candid testimonies of
eyewitnesses Lecpoy Senador and Eduardo Perater
clearly showed that the killing of Alfredo Senador was
attended by treachery. Alfredo Senador was sitting with his
buttocks on his right foot watching the game of "cara y
cruz" when Elbert Callet who was at the back of the victim
stabbed him using a nine (9) inch hunting knife hitting him
near the base of his neck. The victim … was not in a
position to defend himself from the accused who
deliberately and consciously positioned himself at the back
of the unsuspecting victim to ensure the accomplishment
of his evil desire without risk to himself. The location of the
stab wound at the left side of the trunk about two (2)
centimeters from the base of the neck and four (4)
 centimeters above the left clavicular bone with a deepness
of eleven (11) centimeters directed downward and slightly
to the right also suggests that the accused deliberately
and consciously selected that part of the human body to
ensure the instantaneous death of the victim. Although the
counsel of the accused tried to discredit the testimonies of
the prosecution witnesses by pointing that in their joint
affidavit dated 20 September 1996 Lecpoy Senador and
Eduardo Perater stated that Alfredo Senador was
"standing" when he was stabbed, the said discrepancy
could not in any way affect the categorical, candid,
consistent and straightforward declaration of the said
eyewitnesses made in open court that Alfredo
Senador was sitting when he was stabbed by the
accused. Discrepancies between sworn statements or
affidavits and testimonies made at the witness stand
do no necessarily discredit the witnesses (People vs.
Ferrer, 255 SCRA 19). This is because it is a matter of
judicial experience that an affidavit being taken ex
parte is almost always incomplete and often
inaccurate (People vs. Castillo, 261 SCRA 493).
Moreover, as noted by this Court the word "standing"
was superimposed after the original typewritten word
was erased using a snopic (sic) or white substance."
(emphases ours)
In addition, we note that Lecpoy and Eduardo did not countersign
the superimposition in the subject affidavit. In the absence of
clear proof that they confirmed the change, they should not be
bound by it.
The accused invokes self-defense for his acquittal. In self-
defense, the burden of proof rests upon the accused. Thus, he
must present clear and convincing evidence that the following
elements are present, to wit: (1) unlawful aggression; (2)
reasonable necessity of the means employed to prevent or repel
it; and (3) lack of sufficient provocation on the part of the person
defending himself.12 The accused failed to discharge this task.
The accused alleged that he and the victim had hunting knives
during their encounter. After the victim's elbow hit the left side of
his body, the victim grabbed his left arm and tried to twist it with
his right arm. A verbal exchange ensued between them and then
the victim, using the left arm tried to unsheathe the knife that was
tucked at his left side. However, the victim was not able to pull
out the knife because it got entangled with his shirt tucked in his
pants. In defense, the accused allegedly pulled out his own knife
that was tucked in the right side of his waist using his left arm and
stabbed the victim on the left shoulder. He then retreated and left
as the victim was still trying to approach him.13
The version of the accused does not inspire belief. The incident
happened in plain view of many witnesses at the flea market. He
even claimed he was with a certain Guale and one Sonny Boy at
that time.14 Yet, nobody corroborated his story. Indeed, his
narration on how the victim "attacked" him is improbable. In the
witness chair, he admitted that the victim was bigger than him
and that his left hand was restrained by the victim.15 It is thus
incredible how he could pull out his knife from his right side, with
the use of his left hand,16 raise that knife high enough to hit the
shoulder of the victim and inflict an 11-cm. deep wound upon
him. It is more probable that the victim was sitting down when the
accused attacked him from behind as the prosecution witnesses
testified. Equally incredulous is the claim that after being injured,
the victim still tried to approach and attack him, hence, he had to
retreat. The accused's uncorroborated plea of self-defense
cannot be entertained, especially when it is, in itself, extremely
doubtful.17
The Information charged that evident premeditation and
treachery attended the commission of the crime. The evidence
failed to prove evident premeditation. Evident premeditation
requires proof of: (1) the time when the accused decided to
commit the crime; (2) an overt act manifestly indicating that he
has clung to his determination; and (3) sufficient lapse of time
between the decision and the execution to allow the accused to
reflect upon the consequences of his act.18 The records show
that the prosecution did not adduce any evidence to prove these
elements.
Treachery or alevosia exists 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.19
The trial court correctly held that treachery qualified the killing of
the victim to murder. The stabbing was from behind, done in a
sudden and unexpected manner while the victim was sitting close
to the ground, with his buttocks resting on his right foot, and while
his attention was focused on the on-going cara y
cruz game.20 Clearly, the victim was not able to defend himself
from the mode of attack.
The trial court also correctly credited the accused with voluntary
surrender to mitigate his liability. Voluntary surrender requires
that the offender had not been actually arrested; that he
surrendered himself to a person in authority or to the latter's
agent; and that the surrender was voluntary.
The records reveal that the accused ran toward the municipal
building after the stabbing incident. On his way to the municipal
building, he admitted to Barangay Tanods Nilo Callet and Jesus
Dagodog that he stabbed the victim. Although he did not
immediately turn over his weapon to them for fear of retaliation
from the victim's relatives, he did so as soon as they reached the
municipal building. Undoubtedly, the conduct he displayed was
spontaneous as it shows his interest to give himself up
unconditionally to the authorities, thus saving the State the
trouble and expenses necessarily incurred in his search and
capture.21
The accused also claims that his liability should be mitigated by
the fact that he had no intention to commit so grave a wrong. We
are not persuaded.
The lack of "intent" to commit a wrong so grave is an internal
state. It is weighed based on the weapon used, the part of the
body injured, the injury inflicted and the manner it is inflicted. The
fact that the accused used a 9-inch hunting knife in attacking the
victim from behind, without giving him an opportunity to defend
himself, clearly shows that he intended to do what he actually did,
and he must be held responsible therefor, without the benefit of
this mitigating circumstance.22
As the killing was attended by treachery, the accused is liable for
the crime of murder. The prescribed penalty therefor is reclusion
perpetua to death.23 In view of the presence of the mitigating
circumstance of voluntary surrender, the trial court correctly
meted the penalty of reclusion perpetua against the accused.
The civil indemnity awarded in favor of the legal heirs of the
victim, Alfredo Senador, in the amount of P50,000.00 is in accord
with the Court's current policy.
IN VIEW WHEREOF, the decision appealed from, finding the
accused, ELBERT CALLET, guilty beyond reasonable doubt of
Murder in Criminal Case No. 12995, and sentencing him to
suffer reclusion perpetua and to pay the legal heirs of the victim,
ALFREDO SENADOR, the amount of P50,000.00 as civil
indemnity, and to pay the costs, is AFFIRMED.

Costs against accused-appellant.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Kapunan, Ynares-Santiago, and

Austria-Martinez, JJ., concur.
People vs. Pagal G.R. No. L-32040 79 SCRA 570
October 25, 1977
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-32040 October 25, 1977
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PEDRO PAGAL y MARCELINO and JOSE TORCELINO y
TORAZO, defendants-appellants.
Solicitor General Felix Q. Antonio, Assistant Solicitor General
Crispin V. Bautista and Solicitor Leonardo L. Cruz for appellee.
Ciriaco Lopez, Jr. for appellants.
CONCEPCION, JR. J.:têñ.£îhqwâ£
In Criminal Case No. CCC-VI-5 (70) of the Circuit Criminal Court
of Manila, the accused, Pedro Pagal y Marcelino and Jose
Torcelino y Torazo were charged with the crime of robbery with
homicide, committed as follows: ñé+.£ªwph!1
That on or about December 26, 1969, in the City of
Manila, Philippines, the said accused, conspiring
and confederating together and mutually helping
each other, did then and there wilfully, unlawfully
and feloniously, with intent to gain, and by means of
violence, take away from the person of one Gau
Guan, cash amounting Pl,281.00. Philippine
currency, to the damage and prejudice of the said
Gau Guan in the said sum of Pl,281.00; that on the
occasion of the said robbery and for the purpose of
enabling them to take, steal and carry away the
said amount of P1,281.00, the herein accused, in
pursuance of their conspiracy, did then and there
wilfully, unlawfully and feloniously, with intent to kill
and taking advantage of their superior strength,
treacherously attack, assault and use personal
violence upon the said Gau Guan, by then and
there stabbing him with an icepick and clubbing him
with an iron pipe on different parts of his body,
thereby inflicting upon him mortal wounds which
were the direct and immediate cause of his death
thereafter.
Contrary to law, and with the generic aggravating
circumstances of (1) nightime purposely sought to
better accomplish their criminal design; (2) evident
premeditation; (3) in disregard of the respect due
the offended party; and (4) with abuse of
confidence, the accused being then employees of
the offended party. 1
When the case was called for affaigmnent, counsel de oficio for
the accused infomred said court of their intention to enter a plea
of guilty provided that they be allowed afterwards to prove the
mitigating circumstances of sufficient provocation or threat on the
part of the offended party immediately preceding the act, and that
of having acted upon an impulse so powerful as to produce
passion and obfuscation. 2 Therafter, the trial judge propounded
to them the questions and the accused gave the answers quoted
hereunder: ñé+.£ªwph!1
Court:
Your lawyer here has manifested your
desire to enter a plea of guilty to the
offense charged, robbery with
homicide. Do you know that by
agreeing to that manifestation of your
lawyer, you will be admitting the
commission of the crime charged?
If that is the case, I will give you a
chance.
Accused:
Yes, your honor.
Court:
Do you know that by agreeing to that
manifestation, you will be admitting
the commission of the crime charged,
robbery wit,. homicide?

Accused: Accused:

We agree, your honor, to what our Yes, your honor.

lawyer said, but we would like to
explain something. Court:

Court: And for which this court might

sentence you to death or life
Your lawyer here has stated that you imprisonment?
will still prove mitigating
circumstances. Is that what you like to Accused:
explain?
Yes, your honor.
Accused:
Court:
Yes, your honor.
And notwithstanding what is explained
Court: to you, you still insist in your desire to
enter a plea of guilty to the offense
charged?
 Accused:
Yes, your honor.
Court:
Q Notwithstanding again the warning
of the court that the maximum penalty
impossable is death?
A Yes, your honor.
Court:
Arraign the accused.
(At this stage, both accused were arraigned and
both pleaded guilty to the offense charged). 3
Thereafter, the accused presented evidence to prove the
mitigating circumstances of sufficient provocation on the part of
the victim immediately preceding the act and acting upon an
impulse so powerful as to produce passion and obfuscation. After
the accused had rested their case, the prosecution presented the
statements 4 of the accused, and other pertinent documents
regarding the investigation of the case. 5
After the trial, the court a quo rendered its decision, the
dispositive portion of which reads as follows: ñé+.£ªwph!1
WHEREFORE, both accused are hereby found
guilty beyond reasaonable doubt as principals of
the crime of robbery with homicide and there being
proven the aggravating circumstances of nighttime,
evident premeditation and disregard of respect due
the offended party offset only by the mitigating
circumstance of their plea of guilty, sentences each
one of them to DEATH, jointly and severally
indemnify the heirs of the deceased Gau Guan;
P15,000.00 for moral damages; P15,000.00 for
exemplary damages, all amounts to bear interest
until they shall have been fully paid; the sum of
P1,281.00 represnting the amount taken from the
victim; and to pay proportionately the costs. 6
The case is now before this Court for mandatory review on
account of the death penalty imposed upon the accused.
The appellant Pedro Pagal contends that the trial court erred in
convicting him of the crime of robbery with homicide instead of
declaring him liable only for his individual acts, claiming that the
record is bereft of any proof or evidence that he and his co-
appellant Jose Torcelino conspired to commit the crime of
robbery with homicide.
The appellant's position is not well-taken. His denial of conspiracy
with his co-appellant Jose Torcelino cannot be given credence in
view of the clear and convincing confession of his guilt in his
statement 7 signed by him before the police investigators several
hours after the commission of the crime. Besides, when he
pleaded guilty to the charge, he is deemed to have admitted all
the material facts alleged in the information. 8 By his plea, the
appellant admitted not only the commission of the crime but also
the circumstances surrounding its commission, including the
allegations of conspiracy. A plea of guilty when formally entered
on arraignment, is sufficient to sustain a conviction even for a
capital offense without the introduction of further evidence, 9 the
requisite proofs having been supplied by the accused
himself. 10 We find, therefore, that the trial court did not commit
any error in convicting the appellant Pedro pagal of the crime of
robbery with homicide.
The appellants further assail the trial court in not appreciating in
their favor the mitigating circumstances of sufficient provocation,
and passion or obfuscation.
Again, the appeflants'contention is devoid of merit. Firstly, since
the alleged provocation which caused the obfuscation of the
appellants arose from the same incident, that is, the alleged
maltreatment and/or ill-treatment of the appellants by the
deceased, these two mitigating circumstances cannot be
considered as two distinct and separate circumstances but
should be treated as one. 11 Secondly, the circumstance of
passion and obfuscation cannot be mitigating in a crime which —
as in the case at bar — is planned and calmly meditated before
its execution. Thus, in People vs. Daos, 12 a case of robbery with
homicide, this Court rejected the claim of the appellants therein
that passion and obfuscation should have been estimated in their
favor, because the death of the victim therein took place on the
occasion of a robbery, which, before its execut,.on, had been
planned and calmly meditated by the appellants. Thirdly, the
maltreatment that appellants claim the victim to have committed
against them occurred much earlier than the date of the
commission of the crime. Provocation in order to be a mitigating
circumstance must be sufficient and immediately proceeding the
act. We hold that the trial court did not commit any error in not
appreciating the said mitigating circumstances in favor of the
appellants.
Finally, the appellants claim that the trial court erred in
considering the aggravating circumstances of nighttime, evident
premeditation, and disregard of the respect due the offended
party on account of his rank and age.
Although the trial court correctly considered the aggravating
circumstance of nocturnity because the same was purposely and
deliberately sought by the a,)pellants to facilitate the commission
of the crime, nevertheless, We disagree with its conclusion that
evident premeditation and disregard of the respect due the
offended party were present in the commission of the crime.
Evident premeditation is inherent in the crime of
robbery. 13 However, in the crime of robbery with homicide, if
there is evident premeditation to kill besides stealing, it is
considered as an aggravating circumstance. 14 In other words,
evident premeditation will only be aggravating in a complex crime
of robbery with homicide if it is proved that the plan is not only to
rob, but also to kill. 15 In the case at bar, a perusal of the written
statements 16 of the appellants before the police investigators
show that their original plan was only to rob, and that, they killed
the deceased only when the latter refused to open the "kaha de
yero", and fought with them. The trial court, therefore, erred in
taking into consideration the aggravating circumstance of evident
premeditation.
The aggravating circumstance that the crime was committed with
insult or in disregard of the respect due the offended party on
account of his rank, age or sex may be taken into account only in
crimes against persons or honor, when in the commission of the
crime there is some insult or disrespect shown to rank, age, or
sex. 17 lt is not proper to consider this aggravating circumstance
in crimes against property. 18 Robbery with homicide is primarily a
crime against property and not against persons. Homicide is a
mere incident of the robbery, the latter being the main purpose
and object of the criminal. 19 The trial court erred in taking into
account this aggravating circumstance.
It results that in the commission of the crime, there is only generic
aggravating circumstance, i.e., nighttime or nocturnity.
Robbery with homicide is punished by reclusion perpetua to
death. 20 Since the aggravating circumstance of nighttime is
offset by the mitigating circumstance of plea of guilty, the lesser
penalty, which is reclusion perpetua, should be imposed upon the
appellants. 21
ACCORDINGLY, the judgment of the trial court is modified and
the appellnts Pedro Pagal y Marcelino and Jose Torcefino y
Torazo are hereby sentenced to suffer each the penalty
of reclusion perpetua. In all other respects, the judgment of the
trial court is affirmed. With costs against the appellants.
SO ORDERED.
Castro, C.J., Fernando, Aquino, Martin, Santos, Fernandez and
Guerrero, JJ., concur.1äwphï1.ñët
Teehankee and Makasiar, JJ., concur in the result.
Antonio, J., took no part.
Separate Opinions
MUÑ;OZ PALMA, J., concuring:
I would state however that the rulings in People vs. Parete and
People vs. Santos, et al., cited in page 7 of the Opinion must be
taken in conjunction with recent jurisprudence that extra
solicitous care is required in the admission of a plea of guilty and
that the taking of testimony and other evidence notwithstanding a
plea of guilty is the prudent and proper course to follow by trial
judges. (People vs. Villafuerte, March 28, 1974, citing numerous
cases; People vs. Hondolero, August 25, 1976). These
safeguards appear to have been taken in the instant case.
BARREDO, J., concurring:
While I am not fully satisfied that appellants were entirely aware
of the meaning of their plea of guilty, I find that the rebuttal
evidence of the prosecution proved their guilt, which evidence the
appellants did not dispute.
Separate Opinions
MUÑ;OZ PALMA, J., concuring:
I would state however that the rulings in People vs. Parete and
People vs. Santos, et al., cited in page 7 of the Opinion must be
taken in conjunction with recent jurisprudence that extra
solicitous care is required in the admission of a plea of guilty and
that the taking of testimony and other evidence notwithstanding a
plea of guilty is the prudent and proper course to follow by trial
judges. (People vs. Villafuerte, March 28, 1974, citing numerous
cases; People vs. Hondolero, August 25, 1976). These
safeguards appear to have been taken in the instant case.
BARREDO, J., concurring:
While I am not fully satisfied that appellants were entirely aware
of the meaning of their plea of guilty, I find that the rebuttal
evidence of the prosecution proved their guilt, which evidence the
appellants did not dispute.
Romera vs. People G.R. No. 151978; 434 SCRA 467 sentenced him to imprisonment ranging from one (1) year, eight
July 14, 2004 (8) months and twenty (20) days of prision correccional as
minimum to six (6) years and one (1) day of prision mayor as
maximum. He was also ordered to pay private offended
party P19,361.15 as actual damages and P10,000 as attorney’s
fee.

The Information against petitioner reads:

On October 4, 1998, at about 7:00 o’clock in the evening,

at Sitio Puntod, Barangay Balagnan, Balingasag, Misamis
SECOND DIVISION Oriental, within the jurisdiction of the Honorable Court, the
above-named accused, with intent to kill, did, then and
G.R. No. 151978 July 14, 2004 there, willfully, unlawfully, and feloniously attack, assault,
and stab one Roy Mangaya-ay with the use of a bolo,
ARTURO ROMERA, petitioner, thus, inflicting a mortal wound on the abdomen of the
vs. latter; accused thereby performed all the acts of execution
PEOPLE OF THE PHILIPPINES, respondent. which would have produced the felony of Homicide which
was not produced because of the timely and effective
medical attendance administered on the said victim.

CONTRARY TO and in violation of Article 249, in relation

DECISION with Article 6 of the Revised Penal Code.3

When arraigned, petitioner pleaded not guilty and trial thereafter

ensued.

QUISUMBING, J.:
For review on certiorari is the Decision1 dated January 11, 2002
of the Court of Appeals, in CA-G.R. CR. No. 23753, affirming the
August 16, 1999 Order2 of the Regional Trial Court of Cagayan
de Oro City, Branch 24, in Criminal Case No. 98-1089. The RTC
convicted petitioner Arturo Romera of frustrated homicide and
The facts, as summarized by the Court of Appeals and borne by
the records, are as follows:
In the afternoon of October 4, 1998, petitioner Arturo Romera
was with the victim, Roy Mangaya-ay, and five other men
namely, Eligario "Beboy" Acenas, Dennis "Bobong" Mangaya-ay,
Ric Mangaya-ay, Bebing Zulueta and Franklin Generol. They
were all headed for Biasong to play volleyball. When they
reached Biasong, it was raining, so they decided to while away
time at the house of Ciriaca Capil. Franklin Generol hung a string
made of cigarette foil on Bebing Zulueta’s pants and said,
"There’s a monkey among us." Everybody laughed except Roy
Mangaya-ay, who got angry and chided Franklin Generol to stop
lest he make enemies. Bebing Zulueta also got angry and
pointed a finger at Franklin Generol and said, "Even if you are
stronger and older, if you will be hit by my fist, you will crawl."
Petitioner then stood up and warned everyone, "You all watch out
in Balaguan." He pulled Franklin Generol to join him and said,
"Let’s go, there are many boastful people here." Thereafter,
petitioner and Franklin left the group.
At six o’clock in the evening, Roy and his companions arrived in
Balaguan. On their way home, they passed by the house of one
Antonio Mangaya-ay. In said house, which is about one kilometer
away from petitioner’s own, they saw petitioner already carrying a
bolo waiting for them.
Suddenly, raising the bolo with his right hand, petitioner uttered,
"Here are the brave ones." Roy and his companions ran away but
Roy slipped on the muddy ground. Petitioner approached Roy
and said, "Come here, brave one." He held Roy up by the collar
and stabbed him in the stomach. Roy fell unconscious. When he
woke up, he found himself at the provincial hospital where he
underwent surgery and stayed for more than three weeks.
After the stabbing incident, petitioner voluntarily surrendered to a
certain Tibo Ramoso of the Citizen’s Armed Force Geographical
Unit (CAFGU). Ramoso accompanied petitioner to the
Balingasay police station.
For his part, petitioner testified on what happened as follows:
Petitioner and his family were having dinner in their house at
around seven o’clock in the evening. Thereafter, they went to
bed. While lying in bed, they heard Roy call petitioner and his
wife, asking if they had beer and a fighter for sale. He did not
answer Roy because he knew that Roy was already drunk. Roy
asked for petitioner but when the latter’s wife told him that
petitioner was already asleep, he told her to wake her husband
up. Petitioner went down the house and asked who was at the
door. Just as he opened the door for Roy, Roy thrust his bolo at
him. He successfully parried the bolo and asked Roy what it was
all about. Roy answered he would kill petitioner. Petitioner tried to
prevent Roy from entering, so he pushed the door shut. As Roy
was hacking at the wall, petitioner’s wife held the door to allow
petitioner to exit in another door to face Roy. He hurled a stone at
Roy, who dodged it. Roy rushed to him and hacked him, but he
parried the blow. Petitioner grappled for the bolo and stabbed
Roy in the stomach. Wounded, Roy begged petitioner for
forgiveness. According to petitioner, he ceased harming Roy for
fear he might kill him.
The trial court discounted petitioner’s story of self-defense. It
found that when petitioner got hold of the bolo, there was no
more danger to his life. Petitioner was convicted of frustrated
homicide. The dispositive part of its decision reads:
WHEREFORE, premises considered, judgment is hereby
rendered, finding accused ARTURO ROMERA guilty
beyond reasonable doubt as principal of the offense
charged. Consequently, taking into consideration the
mitigating circumstance of voluntary surrender and the
provisions of the [I]ndeterminate Sentence Law, he is
hereby sentenced to a penalty ranging from One (1) year
Eight (8) months and Twenty (20) days of Prision
Correccional as minimum to Six (6) years and one (1) day
 of Prision Mayor as maximum and to pay the private
offended party as actual damages, P19,361.15 and
another sum of P10,000.00 as attorneys fee without,
however, subsidiary imprisonment in case of insolvency.
SO ORDERED.4
Petitioner appealed to the Court of Appeals assigning to the trial
court the following assignments of error:
1. FAILURE TO APPRECIATE THE THEORY OF SELF
DEFENSE.
2. IN THE ALTERNATIVE, FAILURE TO APPRECIATE
SPECIAL PRIVILEGED MITIGATING CIRCUMSTANCE
OF INCOMPLETE SELF DEFENSE, ARTICLE 69,
REVISED PENAL CODE WHICH LOWER THE PENALTY
BY TWO DEGREES.
3. FURTHER ALTERNATIVE, FAILURE TO APPLY
ARTICLE 62 (5) REVISED PENAL CODE, WHICH
LOWER THE PENALTY BY ONE DEGREE LOWER
WITH THE PRESENCE OF TWO OR MORE MITIGATING
CIRCUMSTANCES.5
The Court of Appeals affirmed the trial court’s judgment. It
pointed out that assuming arguendo that it was the victim who
was the aggressor at the start, the unlawful aggression ceased to
exist when petitioner took possession of the bolo from the victim.
Absent unlawful aggression, the justifying circumstance of self-
defense becomes unavailing.
The appellate court also ruled that Article 696 of the Revised
Penal Code finds no application in this case. It explained that
there can be no self-defense, complete or incomplete, unless the
victim has committed unlawful aggression against the person
defending himself. It held, however, that petitioner is entitled to
the mitigating circumstance of voluntary surrender as it was
established during trial that after the incident he surrendered
himself to the CAFGU and later on to the police authorities.
Undeterred, petitioner filed the instant petition for review on the
sole ground that both the RTC and the Court of Appeals
erroneously failed to apply Article 64 (5) of the Revised Penal
Code, which lowers the imposable penalty by one degree when
two or more mitigating circumstances are present.
Petitioner contends that the victim provoked him to a fit of anger
when the latter woke him up and thrust a bolo at him without
warning as petitioner opened the door. Moreover, by hacking and
destroying the bamboo wall of his house, and endangering the
lives of his children, the victim also obfuscated his thinking and
reasoning processes, says the petitioner.
For public respondent, the Office of the Solicitor General (OSG)
counters that the mitigating circumstances of provocation and
passion or obfuscation are unavailing to petitioner since it was he
who initiated the attack. The OSG insists that it was not the victim
who went to petitioner’s house, but petitioner who went to where
the victim was resting.
We note that while both the RTC and the Court of Appeals did
not categorically state who started the attack, it can be
reasonably gleaned from their decisions that it was the victim
who initiated the aggressive encounter. This finding of fact is
amply supported by the evidence on record.
Are the mitigating circumstances of provocation and passion or
obfuscation present in this case?
Thrusting his bolo at petitioner, threatening to kill him, and
hacking the bamboo walls of his house are, in our view, sufficient
provocation to enrage any man, or stir his rage and obfuscate his
thinking, more so when the lives of his wife and children are in
danger. Petitioner stabbed the victim as a result of those
provocations, and while petitioner was still in a fit of rage. In our
view, there was sufficient provocation and the circumstance of
passion or obfuscation attended the commission of the offense.
But, we must stress that provocation and passion or obfuscation
are not two separate mitigating circumstances. Well-settled is the
rule that if these two circumstances are based on the same facts,
they should be treated together as one mitigating
circumstance.7 From the facts established in this case, it is clear
that both circumstances arose from the same set of facts
aforementioned. Hence, they should not be treated as two
separate mitigating circumstances.
Nonetheless, we hold that since the mitigating circumstance of
voluntary surrender is also present, Article 64 (5) of the Revised
Penal Code should be applied, to wit:
ART. 64. Rules for the application of penalties which
contain three periods. –…
...
5. When there are two or more mitigating circumstances
and no aggravating circumstances are present, the court
shall impose the penalty next lower to that prescribed by
law, in the period that it may deem applicable, according to
the number and nature of such circumstances.
...
The penalty for frustrated homicide, pursuant to Article 508 of the
Revised Penal Code, is the penalty next lower in degree than that
prescribed by law for consummated homicide. The penalty for
consummated homicide is reclusion temporal, hence the penalty
next lower in degree is prision mayor. There being two mitigating
circumstances and no aggravating circumstance, pursuant to
Article 64 (5) of the Revised Penal Code, the next lower
penalty, prision correccional, is the next statutory penalty. But
following the Indeterminate Sentence Law herein applicable, the
minimum term of the penalty that should be imposed on petitioner
for frustrated homicide should be within the range of arresto
mayor in any of its periods or from one (1) month and one (1) day
to six (6) months, while the maximum term should be within the
range of prision correccional in its medium period or two (2)
years, four (4) months and one (1) day to four (4) years and two
(2) months.
WHEREFORE, the Decision dated January 11, 2002 of the Court
of Appeals affirming the Order of the Regional Trial Court of
Cagayan de Oro City, Branch 24, is MODIFIED as far as the
penalty imposed is concerned. Petitioner ARTURO ROMERA is
hereby sentenced to suffer the indeterminate penalty of six (6)
months of arresto mayor, as minimum, to four (4) years and two
(2) months of prision correccional, as maximum. He is also
ORDERED to pay the private offended party P19,361.15 as
actual damages, and P10,000.00 as attorney’s fees. Costs de
oficio.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga,
JJ., concur.
US vs. Ampar G.R. No. L-12883; 37 Phil. 201 squatting down, the accused came up behind him and struck him
on the head with an ax, causing death the following day.
November 26, 1917
As the case turns entirely on the credibility of witnesses, we
Republic of the Philippines should of course not interfere with the findings of the trial court. In
SUPREME COURT ascertaining the penalty, the court, naturally, took into
Manila consideration the qualifying circumstance of alevosia. The court,
however, gave the accused the benefit of a mitigating
EN BANC circumstance which on cursory examination would not appear to
be justified. This mitigating circumstance was that the act was
G.R. No. L-12883 November 26, 1917 committed in the immediate vindication of a grave offense to the
one committing the felony.
THE UNITED STATES, plaintiff-appellee,
vs. The authorities give us little assistance in arriving at a conclusion
CLEMENTE AMPAR, defendant-appellant. as to whether this circumstance was rightly applied. That there
was immediate vindication of whatever one may term the
Filemon A. Cosio for appellant. remarks of Patobo to the accused is admitted. Whether these
Acting Attorney-General Paredes for appellee. remarks can properly be classed as "a grave offense" is more
uncertain. The Supreme court of Spain has held the words "gato
que arañaba a todo el mundo," "landrones," and "era tonto, como
toda su familia" as not sufficient to justify a finding of this
mitigating circumstance. (Decisions of January 4, 1876; May 17,
MALCOLM, J.: 1877; May 13, 1886.) But the same court has held the words "tan
landron eres tu como tu padre" to be a grave offense. (Decision
A fiesta was in progress in the barrio of Magbaboy, municipality of October 22, 1894.) We consider that these authorities hardly
of San Carlos, Province of Occidental Negros. Roast pig was put the facts of the present case in the proper light. The offense
being served. The accused Clemente Ampar, a man of three which the defendant was endeavoring to vindicate would to the
score and ten, proceeded to the kitchen and asked Modesto average person be considered as a mere trifle. But to this
Patobo for some of the delicacy. Patobo's answer was; "There is defendant, an old man, it evidently was a serious matter to be
no more. Come here and I will make roast pig of you." The effect made the butt of a joke in the presence of so many guests.
of this on the accused as explained by him in his confession was, Hence, it is believed that the lower court very properly gave
"Why was he doing like that, I am not a child." With this as the defendant the benefit of a mitigating circumstance, and correctly
provocation, a little later while the said Modesto Patobo was sentenced him to the minimum degree of the penalty provided for
the crime of murder. lawph!1.net
Judgment of the trial court sentencing the defendant and
appellant to seventeen years four months and one day of cadena
temporal, with the accessory penalties provided by law, to
indemnify the heirs of the deceased, Modesto Patobo, in the
amount of one thousand pesos, and to pay the costs is affirmed,
with the costs of this instance against the appellant. So ordered.

Arellano, C.J., Torres, and Araullo, JJ., concur.

Johnson, J., concurs in the result.
Street, J., did not sign.

Separate Opinions

CARSON, J., concurring:

I concur. I think, however, that the extenuating circumstances

attending the commission of the crime fall under the provisions of
section 7 of the Penal Code rather than under the provisions of
section 5 of that Code as indicated in the opinion.
People vs. Parana G.R. No. L-45373; 64 Phil. 331 March 31,
1937
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-45373 March 31, 1937
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PRIMO PARANA, defendant-appellant.
Lorenzo Sumulong for appellant.
Office of the Solicitor-General Tuason for appellee.
AVANCEÑA, C.J.:
The accused Primo Parana appeals from the judgment of the
Court of First Instance of Occidental Negros sentencing him, for
the crime of murder committed on the person of Manuel
Montinola, to the penalty of reclusion perpetua and to indemnify
the heirs of the deceased in the sum of P1,000, with the costs.
On the morning of May 19, 1936, in the municipality of Silay,
Occidental Negros, the deceased, who was taking part in a game
of monte in the house of Jose Lapuos, was informed by the
chauffeur Valentin Poblacion that his brother Glicerio Montinola's
car, which he had ordered for his trip to the municipality of Cadiz,
was ready to start. Five minutes later the deceased came
downstairs and upon reaching the street, he turned towards the
car which was waiting or him. As the moment the chauffeur
Poblacion, who saw the appellant behind the deceased in the
attitude of stabbing him with a dagger, shouted to warn him of the
danger, and the deceased, looking behind, really saw the
appellant about to stab him. The deceased, really saw the
appellant about to stab him. The deceased, defending himself,
retreated until he fell on his back into a ditch two meters wide and
1.7 meter deep. Without lessening the aggression the appellant
mounted astride of the deceased and continued to stab him with
the dagger. As the chauffeur Poblacion had been making on
alarm from the beginning, Liboro Montelibano, who was in nearby
drug store, about fifty meters away, went to said place and found
the appellant astride of the deceased who was defending himself
with his hands and feet from the blows the appellant gave him
with the dagger. Montelibano wrested the dagger from the hands
of the appellant who, finding himself disarmed, seized the
revolver which the deceased carried in his belt and tried to fire at
the latter without succeeding in his attempt because Montelibano
likewise wrested said weapon from him. After the appellant and
the deceased had been separated, the former still asked
Montelibano for the weapon taken from him, but at that moment a
policeman arrived and the appellant was placed under arrest.
When the deceased was later removed from the ditch into which
he had fallen, he was found wounded and was taken to the
municipal building. He was later transferred to the provincial
hospital where he was treated by Dr. Ochoa, expiring six days
later, as a result of general peritonitis produced by one of his
wounds.
Then preceding night, at about 11 o'clock, monte had also been
played in the house of Glicerio Montinola, brother of the
deceased. The deceased took part in said game where the
appellant was designated to attend to the players. One Lamay,
who was also taking part in the game, gave the appellant the sum
of P2 to buy beer. For failure of the appellant to immediately
comply with this request, a discussion ensued between him and
Lamay and, as both raised their voices, they were admonished
by the deceased. As the appellant left and went to Lapuos' house
where he lived, where the deceased took part in another game
on the following day, and where said deceased came from when
he was attacked.
At about 7 o'clock in the morning of the crime, the appellant
purchased from the store of the Japanese Matzu Akisama a
hunting knife (Exhibit F), which is the same knife used by him in
attacking the deceased.
On the same morning, at about seven thirty, the appellant went to
the house of Crispin Espacio for whom he used to work, to ask to
be excused from work that day as he intended to wreak
vengeance on somebody. Espacio advised him against it as he
might again go to Bilibid prison, inasmuch as he had already
served a term for the crime of homicide.
These are the facts found by this court to have been established
in this case, proving beyond all doubt that it was the intention of
the appellant to kill the deceased, judging not only from the
condition of the weapon with which he provided himself but also
by the manner and circumstances under which he committed the
aggression.
The appellant's testimony is the only evidence in his defense.
According to him, on the morning of the crime he saw the
deceased taking part in the game in Lapuos' house where he
lived. The deceased then uttered threatening words to him, which
he disregarded, leaving the house and going to a nearby Chinese
store. Sometime, later, as he was on his way to Lapuos' house,
he saw the deceased coming down and, approaching the latter,
he spoke to him about the incident of the previous night and of
their meeting a few minutes before, asking said deceased to
forgive and not wreak vengeance on him. The deceased, by way
of an answer, drew the revolver which he carried in his belt, and
the appellant, in their face of such attitude, attempted to wrest the
weapon from him. In the struggle the deceased fell on his back
into a ditch and the appellant mounted astride of him, tried to
wrest the revolver from him, attacking the deceased therewith.
When the appellant had succeeded in taking possession of the
revolver the deceased got up and walked towards the car. At that
moment Liboro Montelibano appeared and the appellant turned
over the knife and the revolver to him.
This version of the incident given by the appellant in his
testimony, without any corroboration, is contradicted by the
testimony of the chauffer Poblacion and of Liboro Montelibano.
Furthermore it is improbable, taking into consideration the fact
that he was the offended party, suffering from the justice of the
offense received, provided himself with a lethal weapon and
approached the deceased, which circumstances do not agree
with his attitude according to his testimony.
The court correctly found that the qualifying circumstance of
treachery was present in the commission of the crime.
The appellant, in inspite of having seen the deceased in the
upper story of Lapuos' house, did not wish to attack the latter
there undoubtedly to avoid his being defended by the many
players who were with him. Instead, he waited for the deceased
at a merely store until the latter came down, and attacked him
while he had his back turned and could not see the appellant. All
these, which were the beginning of the execution of the
appellant's design to kill the deceased, constitute treachery
inasmuch as they tended to avoid every risk to himself arising
from the defense which the deceased might make (U. S. vs.
MacMann, 4 Phil., 561; U. S. vs. Pendleton, 7 Phil., 457; U. S. vs.
Mercoleta, 17 Phil., 317; U. S. vs. Cabanog, 34 Phil., 620). It
matters not that the deceased accidentally turned around upon
hearing Poblacion's warning and was able to defend himself from
the elbow which, at that moment, the appellant was about to give
with a dagger, because the treacherous character of a means
employed in the aggression does not defend upon the result
thereof but upon the means itself, in connection with the
aggressor's purpose in employing it. Otherwise this reason the
law does not require that the treacherous risk to the person of the
aggressor arising from the defense which the offended party
might make, it being sufficient that it tend to this end.
However, even considering at the moment the deceased turned
around and saw the appellant in the attitude of stabbing him, this
court also finds therein the elements of treachery inasmuch as
the aggression, under the circumstances, was so sudden that the
deceased, who carried a revolver in his belt, had no chance to
defend himself with it.
Considering the incident at the moment the appellant mounted
astride of the deceased, who defend himself only with his feet
and hands without having been able to use the revolver carried
by him in his belt, when said appellant, in such situation, inflicted
the wound which caused the death of the deceased, he likewise
acted with treachery on the ground that, under the
circumstances, he was not running, as in fact he did not run, any
risk arising from the defense which the deceased might make.
And so, whether the beginning and the end of the aggression be
considered singly, or the development thereof be considered as a
whole, it is evident that the aggravating circumstance of treachery
was present.
The aggravating circumstance that the appellant is a recidivist
must be taken into consideration. The mitigating circumstance
that he had acted in the immediate vindication of a grave offense
committed against him a few hours before, when he was slapped
by the deceased in the presence of many persons, must likewise
be taken into consideration. Although this offense, which
engenders perturbation of mind, was not so immediate, this court
is of the opinion that the influence thereof, by reason of its gravity
and the circumstances under which it was inflicted, lasted until
the moment the crime was committed. Lastly, the other mitigating
circumstance that the appellant had voluntarily surrendered
himself to the agents of the authorities must be considered.
For the foregoing considerations, this court finds the appellant
guilty of the crime of murder qualified by treachery, and, taking
into consideration the presence of one aggravating and two
mitigating circumstances in the commission of the crime, and
applying the Indeterminate Sentence Law, Act No. 4103, he is
sentenced to the penalty of from ten years of prision mayor, as
the minimum, to seventeen years, four months and one day
of reclusion temporal, as the maximum, affirming the appealed
sentence in all other respects, with the costs. So ordered.
Abad Santos, Imperial and Diaz, JJ., concur.
Separate Opinions
VILLA-REAL, J., dissenting:
I regret to have to dissent from the worthy opinion of the majority
in so far as it finds the circumstance of treachery established and
takes it into consideration in order to qualify as murder the crime
committed by the herein accused-appellant Primo Parana.
The accused-appellant, testifying on the aggression said:
"And when I went home, it was the precise moment when
Manuel Montinola was coming down and we met on the
way. I then called him saying: Please, I have to tell you
something. I approached him and said: Maning, last night
you slapped me and you still continue to talk against me;
you do not pity me. It was you who took me to serve in that
gambling house; if you take revenge upon me I shall lose
the job and there is not other person to whom I can apply
for help. I would die of hunger. Have compassion wrong
against you and if I have committed an offense please
forgive me. You used to give me something when you won
in the game. By way of an answer he said to me: Go
away, you are a fool, and immediately drew his revolver
from his pocket. When I saw him take his revolver from his
pocket, I held him by wrist and he persisted in his effort. I
then jerked his hand and in the struggle he retreated until
he fell into the ditch. I released him because he slipped
from my grasp. He then pulled his revolver out of his
pocket and I jumped into the ditch and seized his hand
holding the revolver pressing it against his breast. With my
left hand I took the revolver and with my right I unsheated
the hunting knife, which I carried in my belt. I warned him
saying: Do not fire your revolver seizing the barrel of the
revolver with my left hand, twisting it with my right hand
which carried the hunting knife. We struggled for the
possession of the revolver and I succeeded in taking it
away. I then left him and withdrew to a distance of about
one braza from him while he got up and ran towards the
car. Then Benito Abellar arrived and said to me: Give me
your hunting knife and the revolver. Liboro Montelibano
later arrived and said to me: Primo, do you know me? I
answered: Yes, I know you. You are one of my friends. He
told me: Turn over to me the revolver and the hunting
knife.
Valentin Poblacion, a witness for the prosecution, testifying on
the aggression stated briefly as follows:
As the deceased Manuel Montinola had borrowed his brother
Glicerio Montinola's car, which was being driven by the witness
as Glicerio Montinola's chauffeur, he (Poblacio) brought it at 10
o'clock in the morning of the day of the crime to the house of
Jose Lapous, where said Manuel Montinola was playing monte.
The accused-appellant Primo Parana was also in said house
playing monte. The witness left the car parked in front of Jose
Lapuos' house and went up to notify Manuel Montinola. As
Manuel Montinola told him to wait, the witness left the house and
went to the car to do as he was told. About five minutes after he
had left, he saw the deceased Manuel Montinola also coming
downstairs. The latter told him to wait because he had yet to go
to his house. The witness then called out to Manuel Montinola,
saying: "Maning, Maning, Primo is going to stab you." Upon a
hearing this, Manuel Montinola turned around and, seeing the
accused in the attitude of stabbing him, retreated defending
himself. He fell on his back in the street near a ditch and in his
position he continued to defend himself with his feet and hands
until he finally fell into the ditch, which was a braza wide and
three-fourths of a meter deep, without ceasing to defend himself.
This struggle lasted only about two minutes, in the course of
which, the accused succeeded in inflicting a slight wound in the
left side of Manuel Montinola's breast. Liboro Montelibano then
came and, seizing the accused by his left side, wrested from him
the dagger, Exhibit F, with which he stabbed the deceased, and
took the accused to the municipal building. The witness saw no
revolver on the person of the deceased.
It will be noted that between the testimony of the accused-
appellant and that of Valentin Poblacion, there is a discrepancy
as to the commencement of the aggression. While the accused-
appellant states that he had a conversation with the deceased
during which the latter called him a "fool" and drew his revolver
from his pocket, which said accused-appellant tried to wrest from
him, Valentin Poblacion stated that after he had informed Manuel
Montinola that his brother Glicerio's car was at his disposal and
Manuel told him to wait because he would first go home, he
(Poblacion) went to his car, and, upon turning around, he saw the
accused-appellant behind the deceased in the attitude of
stabbing him. The testimony of the accused-appellant relative to
the conversation had between him and Manuel Montinola is very
probable inasmuch as on the morning in question both were at
the house of Jose Lapuos from which they came down. This
conversation was not contradicted by anybody.
Article 14 of the Revised Penal Code provides 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."
If, as the defense claims, before the fight a conversation was had
between the deceased and the accused, during which the
deceased called the accused a "fool" and drew his revolver, it
cannot be stated that the accused employed means, methods
and forms in the fight which tended directly and specially to
insure the infliction of the wound, without risk to himself arising
from the defense which the offended party might have made, on
the ground that the deceased was not only the provoker but also
the aggressor.
But even granting, for the sake of argument that the latter's back
was turned, but he did not succeed in his attempt due to Valentin
Poblacion's shouts of warning, it can not be said that he acted
with treachery in wounding the deceased while the latter lay upon
his back in the ditch, inasmuch as he had been defending himself
with his feet and hands and his defense was so effective that the
accused succeeded in wounding him only slightly. The attempted
treachery disappeared from the moment Manuel Montinola
became aware of the danger from the knife of the accused, to
which his person was exposed, and was able to evade it by
retreating until he fell into a ditch from which, as a cat upon its
back, he defended himself with his feet and hands. In order that
treachery may exist, it is necessary that the means, methods, or
forms employed in the commission of any of the crimes against
persons be made use of simultaneously or in such a combination
as to afford the offended party no defense that may endanger the
person of the aggressor. If in the development of a fight
commenced treacherously by the aggressor, the offended party
comes upon a chance to defend himself and is wounded, it
cannot be juridically stated that he was wounded treacherously.
In view of the foregoing considerations, we are, therefore, of the
opinion that treachery, as a circumstance qualifying the crime of
murder, was not present in this case. The crime resulting from
the facts established during the trial should be considered as a
simple homicide and punished with the penalties prescribed
therefor by the law.
Concepcion, J., concurs.
LAUREL, J., concurring and dissenting:
I yield to the next conclusion of guilt of the appellant. I also
accept the concurrence of the mitigating circumstance of
vindication of a grave offense in favor of the appellant (par. 5, art.
13, Rev. Penal Code). I however join in the dissent from the
opinion of the majority that treachery was present in the
commission of the offense. I really do not think that the appellant
had adopted a method or form of execution which tended directly
and especially to insure the accomplishment of his purpose
without risk to himself arising from any defense which Manuel
Montinola could have made. The evidence for the prosecution is
to the effect that the appellant was seen by the chauffeur
Poblacion behind the deceased in the attitude of stabbing the
latter. Poblacion called out to Manuel warning him and the latter
turned around and, seeing the attitude of the appellant, retreated
and in so doing fell on his back into a ditch (pp. 24, 26, 30, t. s.
n., Set II). Seeing this the chauffeur cried out for help and brought
to the scene Liboro Montelibano who was at the time at a drug
store. Montelibano wrested from the defendant the knife, Exhibit
F, and the revolver which the defendant had taken from the
deceased. Whatever may be the rule as to the continuity of an
attack, whether treachery must precede it (U. S. vs. Balagtas and
Jaime, 19 Phil., 164) or may be considered if present at any time
thereafter in the interval before the termination (U. S. vs. Baluyot,
40 Phil., 385), I express the opinion that upon the facts of this
case there was no treachery. Although the defendant was in the
attitude of stabbing the deceased from behind, that was at most a
mere attempt, ineffectual, and the wound was actually inflicted
while the appellant and the deceased were struggling in the ditch
and in the course of which the deceased made quite an effective
defense.
I believe that the appellant should be convicted of simple
homicide with the aggravating circumstance of recidivism, he
having been previously convicted by final judgment of the Court
of First Instance of Zamboanga in criminal case 2143 for the
crime of homicide on July 20, 1921, which circumstance is
compensated by the mitigating circumstance of immediate
vindication of a grave offense. Considering the mitigating
circumstance of voluntary surrender in his favor, he should be
sentenced to an indeterminate penalty ranging from six years and
one day, prision mayor to twelve years and one day, reclusion
temporal, with the accessory penalties provided, the indemnity,
and the costs.
People vs. Diokno G.R. No. L-45100; 63 Phil. 601 October
26, 1936
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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
gestæ because 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 temporal in
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 of prision mayor.
Both accused should be granted the benefits of the indeterminate
sentence provided in Act No. 4103, as amended by Act No. 4225,
which prescribes a penalty the minimum of which shall be taken
from that next lower to prision mayor, or prision correccional of
from six months and one day to six years. Taking into account
the circumstances of the case, the indeterminate penalty to which
each of said accused must be sentenced is fixed at from two
years and one day of prision correccional to eight years and one
day of prision mayor, crediting each with one-half of the time
during which they have undergone preventive imprisonment (art.
29, Revised Penal Code).
Wherefore, this court declares the accused Epifanio Diokno and
Roman Diokno guilty of the crime of homicide and sentences
each of them to an indeterminate penalty from two years and one
day of prision correccional to eight years and one day of prision
mayor, crediting them with one-half of the time during which they
have undergone preventive imprisonment, and to indemnify the
heirs of the deceased in the sum of P1,000, with the costs of both
instances. So ordered.
Avanceña, C. J. Abad Santos, and Imperial, JJ., concur.
Separate Opinions
LAUREL, J., concurring and dissenting:
I accept the conclusion of the majority of my brethren that the
crime committed by the defendants and appellants was simple
homicide as the existence of either the qualifying circumstance of
evident premeditation (art. 14, par. 13, Revised Penal Code) or
that of abuse of superior strength (art. 14, par. 15, Revised Penal
Code), has not been clearly established. The mere fact that the
two appellants were both armed with balisong knives and that the
deceased knelt before them and implored forgiveness for what he
had done is not in my opinion, necessarily conclusive of the
concurrence of abuse of superior strength in the commission of
the crime (besides U. S. vs. Devela, 3 Phil., 625, 629, vide I
Viada, Codigo Penal, pp. 278, 279). To constitute abuse of
superior strength, it is necessary to show with sufficient clearness
(People vs. Trumata and Baligasa, 49 Phil., 192, 194), that the
aggressors, individually and collectively, were greatly superior in
strength to the offended party (People vs. Dayug and Bannaisan,
49 Phil., 423, 427).
For the reason given in the majority opinion, I also agree to the
taking into account of the mitigating circumstance of the
appellants having acted upon an impulse powerful as natural to
have produced passion or obfuscation (art. 13, par. 6, Revised
Penal Code).
I also agree in according to the appellant, Epifanio Diokno, the
mitigating circumstance of voluntary surrender. (Art. 13, par. 7,
Revised Penal Code.)
I am of the opinion, however, that the mitigating circumstance of
immediate vindication of a grave offense (art. 13, par. 5, Revised
Penal Code) should not be considered in favor of the appellants.
It should be observed that the proximate cause of the tragedy
was the elopement of Salome, the daughter of Epifanio and the
sister of Roman. Salome and the deceased had been engaged
for about a year and the evidence shows that the elopement took
place at the instance of Salome herself. Under existing
legislation, a woman eighteen years of age or over, can contract
marriage without the consent of her parents. If she leaves the
parental home for this purpose, neither she nor her lover commits
any offense. Under the doctrine laid down by the majority in the
present case, if a woman thirty or more years of age should leave
the parental home for the purpose of marrying or for some kind or
species of that romance described by Tennyson in his Idylls of
the King or by Scott in his Lay of the Last Minstrel, against the
wishes of her parents, and her father or brother should, in hot
pursuit, overtake the impassioned Romeo and kill him on the
spot, the enraged assailant or assailants would be accorded the
benefit of the mitigating circumstance of having acted in
immediate vindication of a "grave offense" committed against
them, notwithstanding the maturity or overmaturity in age of the
woman and the fact that the elopement was had at her instance
and upon her invitation. It seems to me that the interpretation is
not in keeping with the mores of the times. Filial respect and
family traditions are best conserved by home education or
environment, not to speak of other factors, rather than by the rigid
or liberal application of the penal laws. The act of the deceased in
eloping with Salome, at the invitation of the latter was not a
"grave offense" which called for or justified immediate vindication.
Disregarding the mitigating circumstance of immediate
vindication, considering, furthermore, that there are no
aggravating circumstances attendant in the commission of the
offense, and applying the provisions of article 64 of the Revised
Penal Code and those of the Indeterminate Sentence Law,
Epifanio Diokno, having in his favor two mitigating circumstances,
should be sentenced to an indeterminate prison term ranging
from four years, two months and one day of prision
correccional to ten years and one day of prision mayor, and
Roman Diokno, having in his favor only one mitigating
circumstance, should be sentenced to an indeterminate prison
term ranging from six years and one day of prision mayor to
twelve years and one day of reclusion temporal.
DIAZ, J., dissenting:
I am firmly convinced that the crime committed by the appellants
is not simply homicide but murder. It is so qualified by the proven
fact that abuse of superior strength, which is one of the
circumstances raising homicide, if committed to the category of
murder, was present in the commission thereof (art. 248, subsec.
1, of the Revised Penal Code).
From Juan Alcantara's testimony to which the court gives
absolute credit, so that it is stated in the majority opinion that he
saw the appellants pursue the deceased, Yu Hiong, on said
occasion, and that he fired shots in the air in order to call the
police for help, it appears that upon looking out of the window of
his house, almost fronting that of Antonio Layco on the landing of
whose stairs the crime was committed, he saw the deceased
running along Hermanos Belen Street pursued at close range by
the appellants, anxious to enter Layco's house about twenty or
twenty-five meters away (t. s. n., page 57), in order to escape
from the aggression of which he was the victim. It likewise
appears that as he saw, upon arriving at the landing of the stairs
of Layco's house, that the same was closed and that he had no
other means of escape, not having as he, in fact, did not then
have any instrument to defend himself, he fell on his knees, and
in that position asked the appellants, his pursuers, to forgive him.
It finally appears that instead of stopping before such attitude of
the deceased, which clearly indicated surrender and
acknowledgment of his helplessness, said appellants attacked
him with their respective weapons, wounding him in the back, in
the side and in other parts of the body, giving him no peace until
they saw him down and bathed in his own blood. I am of the
opinion that when two armed persons attack another who is not
armed, as the appellants did to Yu Hiong who was then
completely unarmed and showed signs of submission to them by
falling on his knees and imploring their forgiveness, the
circumstance of abuse of superior strength clearly and
undeniably exists. It is because one who flees, falls on his knees
later when he can no longer evade his pursuers, and immediately
asks forgiveness, shows not only his desire not to resist but his
conviction that he is powerless to offer resistance, thereby
admitting his inferiority and the superiority of his assailants. The
Supreme Court of Spain, after whose Penal Code ours is
patterned, settled a similar question substantially in this sense, in
its decision of June 17, 1872.
In a decision of January 23, 1887, said court, resolving the
question whether or not the circumstance of abuse of superior
strength should be taken into consideration in a case where two
persons attack another, there being no disparity in physical
strength between the attackers and the attacked, and the former
committed the aggression with arms, the latter having only a
small rod to defend himself, sustained the affirmative.
In another decision of January 14, 1899, the question whether or
not there was abuse of superior strength in a case where two
persons, one armed with a cane and the other with a big stone,
attacked another who was unarmed, was likewise resolved by
said court in the affirmative.
Considering the act committed by the appellants a manifest
murder, and not homicide, due to the presence of the qualifying
circumstance of abuse of superior strength, and it being a fact
that the mitigating circumstances stated in the majority opinion
were present in the commission thereof, I am of the opinion that
the penalty that should be imposed upon them, under article 64,
rule 5, of the Revised Penal Code, is from ten years and one day
of prision mayor to seventeen years and four months of reclusion
temporal, said penalty being next lower to that prescribed for the
crime of murder, or at least, the indeterminate penalty of from five
years of prision correccional to ten years and one day of prision
mayor, in accordance with Act No. 4103. With due respect to the
majority opinion, I dissent therefrom and vote as herein stated.

The question whether or not the accused, who simultaneously

pursued their completely unarmed victim, overtook, surrounded
and attacked him later with steel weapons, mortally wounding
him, acted with abuse of superior strength, was similarly
determined in the decision of January 17, 1919, the court having
held therein that singleness of action and purpose was present in
taking advantage of the victim's lack of means of defense, with
the correlative odds in favor of the aggressors.

Abuse of superior strength is generally determined by the excess

of the aggressor's natural strength over that of the victim, taking
into consideration the momentary positions of both and the
employment of means weakening the defense , although not
annulling it (decision of the Supreme Court of Spain of March 6,
1928). If the case under consideration were to be considered in
this light, the conclusion must be that the appellants really acted
with abuse of superior strength.
People vs. Torpio G.R. No. 138984; 431 SCRA 9 June 4,
2004
SECOND DIVISION
G.R. No. 138984 June 4, 2004
PEOPLE OF THE PHILIPPINES, appellee,
vs.
DENNIS TORPIO y ESTRERA, appellant.
DECISION
CALLEJO, SR., J.:
This is an appeal from the Decision1 of the Regional Trial Court of
Ormoc City, Branch 35, in Criminal Case No. 5217-0, finding
appellant Dennis Torpio y Estrera guilty beyond reasonable doubt
of murder. The trial court sentenced him to suffer reclusion
perpetua and ordered him to pay the victim’s heirs the total
amount of ₱200,000 as civil indemnity, actual damages and
attorney’s fees.
The appellant and his father Manuel Torpio were charged with
murder for the killing of Anthony Rapas in an Amended
Information that reads:
That on or about the 11th day of October 1997, at around
12:00 o’clock midnight at Zone 3, Brgy. Camp Downes,
Ormoc City, and within the jurisdiction of this Honorable
Court, the above-named accused: DENNIS TORPIO y
Estrera and MANUEL TORPIO, conspiring together,
confederating with and mutually helping and aiding one
another, with treachery, evident premeditation and intent
to kill, did then and there wilfully, unlawfully and feloniously
stab, hit and wound the victim herein ANTHONY RAPAS,
without giving the latter sufficient time to defend himself,
thereby inflicting upon said Anthony Rapas mortal wounds
which caused his instantaneous death. Autopsy report is
hereto attached.
In violation of Article 248, RPC, as amended by RA 7659.
Ormoc City, November 4, 1987.2
At their arraignment, the two accused, assisted by counsel,
pleaded not guilty to the charge. Trial ensued.
The Case for the Prosecution
As culled by the trial court from the evidence on record, the case
for the prosecution is as follows:
As found by the Court, it was October 11, 1997 in Zone 3,
Barangay Camp Downes, Ormoc City. A family of seven,
Manuel Torpio and wife included, together with an old
woman visitor named Fausta Mariaca, were taking their
supper. Anthony Rapas knocked and asked for Dennis
Torpio who, after eating, went and left home with Anthony
upon the latter’s invitation for a drinking spree. They have
(sic) some round of drinks at a nearby store together with
another companion. Not contented, they left and
proceeded to the seashore where in a cottage there were
people also drinking. Joining the group, Anthony and
Dennis again drank. Later, the two and their companion
transferred to another cottage and there they again drank
now with gin liquor except Dennis who did not anymore
drink. For one reason or another, because Dennis did not
drink, Anthony got angry and he then bathed Dennis with
gin, and boxed or mauled him and tried to stab him with
a batangas knife but failed to hit Dennis as the latter was
crawling under the table. He got up and ran towards home.
His family was awaken[ed], his mother shouted as Dennis
was taking a knife and appearing (sic) bloodied. Manuel
Torpio woke up and tried to take the knife from Dennis but
failed and, in the process, wounded or cut himself in his
left hand. Dennis left with the knife, passed by another
route towards the seashore and upon reaching the cottage
where Anthony and their companion Porboy Perez were,
looked for Anthony. Anthony upon seeing Dennis sensed
danger and he fled by taking the seashore. But Dennis,
being accustomed to the place and having known the
terrain despite the dark (sic) knew, upon being suggested
by somebody whom Dennis claimed to be Rey Mellang,
that there is only one exit Anthony could make and, thus,
he went the other way through the nipa plantation and he
was able to meet and block Anthony. Upon seeing the
shining knife of Dennis, Anthony tried to evade by turning
to his left and Dennis thus hit the back portion of Anthony.
Anthony ran farther but he was caught in a fishing net
across the small creek and he fell on his back. It is at this
juncture (sic) Dennis mounted on (sic) Anthony and
continued stabbing the latter. He left the place but did not
proceed to (sic) home, instead, he went to the grassy
meadow near the camp and there slept until morning. He
then went to a certain police officer to whom he voluntarily
surrendered and together they went to the police
headquarters.3
The case for the accused is, likewise, summarized by the trial
court in its decision based on the evidence, as follows:
… [O]n October 11, 1997 at about 7:00 o’clock in the
evening, while he and his family, Manuel, his father and
mother and an old woman visitor named Fausta Mariaca
included, were having dinner, Anthony Rapas knocked at
their door. Anthony invited Dennis for a drinking spree.
Both left after dinner, went to the store of a certain Codog
and there started drinking. The store was about 70 meters
away from Dennis’ house, in Barangay Camp Downes,
Ormoc City. They consumed a half gallon of tuba, drinking
with a companion named Porboy Perez. Two small bottles
of Red Horse beer were added, after which the three
proceeded to the seashore, in a cottage of a beach resort
there named Shoreline. Arriving there, there were some
people drinking also and they offered them drinks and the
two obliged. Afterwards, they went to a cottage and later
Porboy arrived bringing with him a liquor gin. Dennis did
not drink the gin, only Anthony and Porboy did. [T]hen
after drinking the gin, Anthony tried to let Dennis drink the
gin and as the latter still refused, Anthony allegedly bathed
Dennis with gin and mauled him several times. Dennis
crawled beneath the table and Anthony tried to stab him
with a 22 fan knife but did not hit him. Dennis got up and
ran towards their home. Upon reaching home, he got a
knife and as his mother was alarmed and shouted, a
commotion ensued. Manuel, his father, awoke and tried to
scold Dennis and confiscate from him the knife but he
failed, resulting to Manuel’s incurring a wound on his hand
 (see TSN of October 8, 1998, p. 7 et seq.). He went back
to the cottage by another route and upon arrival Porboy
and Anthony were still there. Upon seeing Dennis,
Anthony allegedly avoided Dennis and ran by passing the
shore towards the creek. Rey Mellang went out of his
house at this time and said "meet him ‘Den,’" alluding to
Anthony and to Dennis, respectively (TSN of October 8,
1998, p. 31 et seq.). Dennis did meet him, virtually blocked
him and stabbed him. When he was hit, Anthony ran but
then he got entangled with a fishing net beside the creek
and Anthony fell on his back, and Dennis mounted on (sic)
him and continued stabbing him. After stabbing (sic),
Dennis left and went to the grassy meadow at Camp
Downes and slept there. At about 7:00 in the morning, he
went to a known police officer named Boy Estrera in San
Pedro Street, Ormoc City and to whom he voluntarily
surrendered. He was later turned over to the police
headquarters (TSN, supra, pp. 31-38).4
The trial court rendered judgment acquitting accused Manuel
Torpio but convicting the appellant of murder qualified by
treachery or evident premeditation and appreciating in his favor
the following mitigating circumstances: (a) sufficient provocation
on the part of the offended party (the deceased Anthony)
preceded the act; (b) the accused acted to vindicate immediately
a grave offense committed by the victim; and, (c) voluntary
surrender. The decretal portion of the decision reads:
Wherefore, from all of the foregoing, the Court finds the
accused Dennis Torpio guilty beyond reasonable doubt of
the crime of murder and hereby sentences him after
appreciating the existence of mitigating circumstances, to
the imprisonment of forty (40) years reclusion perpetua,
and to pay the offended party ₱50,000.00 as indemnity,
₱100,000.00 as actual damages, ₱50,000.00 for and as
attorney’s fees. If said accused is detained, [the] period of
imprisonment shall be credited to him in full if he abides in
writing by the term for convicted prisoners, otherwise, for
only four-fifths (4/5) thereof.
On the accused Manuel Torpio, the Court finds him not
guilty of the crime charged and hereby acquits him
therefrom. If he is detained, he shall be discharged
immediately from prison unless he is held for other lawful
cause.
SO ORDERED.5
Dennis Torpio, now the appellant, appealed the judgment of the
trial court alleging as sole error that –
THE TRIAL COURT GRAVELY ERRED IN FINDING
THAT TREACHERY AND EVIDENT PREMEDITATION
ATTENDED THE COMMISSION OF THE CRIME, THUS,
QUALIFYING THE SAME TO MURDER.6
According to the appellant, treachery was not attendant when he
killed the victim because he did not consciously adopt a mode of
attack to ensure the accomplishment of his criminal purpose
without any risk to himself arising from the defense that the victim
might offer. He posits that his act of stabbing Anthony was
preceded by a quarrel between them; hence, the victim had been
forewarned of the danger to his life and limb.
The appellant asserts that evident premeditation was not,
likewise, attendant because the prosecution failed to prove that
he had planned and prepared any plot to kill the victim. Further,
no direct and positive evidence had been shown that sufficient
time had elapsed between his determination to commit the crime
and its execution to enable him to reflect upon the consequences
of his act. He argues that he is guilty only of homicide as defined
in Article 249 of the Revised Penal Code, as amended.
The appeal is meritorious.
Significantly, apart from its statement that "[f]rom the evidence
adduced, the Court is of the considered opinion that the killing of
Anthony by Dennis Torpio was attended with treachery and
evident premeditation as to qualify it to murder,"7 the trial court
did not state the factual basis for its conclusion.
It is axiomatic that qualifying and aggravating circumstances, like
treachery and evident premeditation, must be proven with equal
certainty as the commission of the crime charged.8 Such
circumstances cannot be presumed; nor can they be based on
mere surmises or speculations.9 In case of doubt, the same
should be resolved in favor of the accused.10
There is treachery when the offender employs means, methods
or forms in the execution of the crime which tends directly and
specially to insure its execution without risk to himself arising
from the defense which the offended party might make.11 There
must be evidence showing that the mode of attack was
consciously or deliberately adopted by the culprit to make it
impossible or difficult for the person attacked to defend himself or
retaliate.12 Further, the essence of treachery is the swift and
unexpected attack without the slightest provocation by the
victim.13
In this case, the record is barren of evidence showing any
method or means employed by the appellant in order to ensure
his safety from any retaliation that could be put up by the victim.
The appellant acted to avenge Anthony’s felonious acts of
mauling and stabbing him. Although the appellant bled from his
stab wound, he ran home, armed himself with a knife and
confronted Anthony intentionally. When the latter fled, the
appellant ran after him and managed to stab and kill the victim.
To warrant a finding of evident premeditation, the prosecution
must establish the confluence of the following requisites:
... (a) the time when the offender [was] determined to
commit the crime; (b) an act manifestly indicating that the
offender clung to his determination; and (c) a sufficient
interval of time between the determination and the
execution of the crime to allow him to reflect upon the
consequences of his act.14
The qualifying circumstance of evident premeditation requires
that the execution of the criminal act by the accused be preceded
by cool thought and reflection upon a resolution to carry out the
criminal intent during the space of time sufficient to arrive at a
calm judgment.15 Evident premeditation needs proof of the time
when the intent to commit the crime is engendered in the mind of
the accused, the motive which gives rise to it, and the means
which are beforehand selected to carry out that intent. All such
facts and antecedents which make notorious the pre-existing
design to accomplish the criminal purpose must be proven to the
satisfaction of the court.16
Nothing in the records supports the trial court’s conclusion that
evident premeditation attended the commission of the crime in
this case. It was not shown by the prosecution that, in killing
Anthony, the appellant had definitely resolved to commit the
offense and had reflected on the means to bring about the
execution following an appreciable length of time.
According to Manuel, the father of the appellant, the latter told
him, "I have to kill somebody, ’Tay, because I was boxed." To the
Court’s mind, this utterance is not sufficient to show that the
crime was a product of serious and determined reflection. The
interval between the time when the appellant made this
statement and when he actually stabbed Anthony was not
sufficient or considerable enough as to allow him to reflect upon
the consequences of his act. There was no sufficient interregnum
from the time the appellant was stabbed by the victim, when the
appellant fled to their house and his arming himself with a knife,
and when he stabbed the victim. In a case of fairly recent vintage,
we ruled that there is no evident premeditation when the fracas
was the result, not of a deliberate plan but of rising tempers, or
when the attack was made in the heat of anger.17
Without any proof of any circumstance that would qualify it, the
killing could not amount to murder. The appellant should, thus, be
held liable only for homicide for the death of Anthony.
The Court agrees with the trial court that mitigating
circumstances should be considered in the appellant’s favor.
However, only two out of the three mitigating
circumstances18 considered by the trial court can be credited to
the appellant. The trial court properly appreciated the mitigating
circumstance of voluntary surrender as it had been established
that the appellant, after he killed Anthony, lost no time in
submitting himself to the authorities by going to Boy Estrera, a
police officer.
The mitigating circumstance of having acted in the immediate
vindication of a grave offense was, likewise, properly
appreciated. The appellant was humiliated, mauled and almost
stabbed by the deceased. Although the unlawful aggression had
ceased when the appellant stabbed Anthony, it was nonetheless
a grave offense for which the appellant may be given the benefit
of a mitigating circumstance.19 But the mitigating circumstance of
sufficient provocation cannot be considered apart from the
circumstance of vindication of a grave offense. These two
circumstances arose from one and the same incident, i.e., the
attack on the appellant by Anthony, so that they should be
considered as only one mitigating circumstance.20
Under Article 249 of the Revised Penal Code, homicide is
punishable by reclusion temporal. However, considering that
there are two mitigating circumstances and no aggravating
circumstance attendant to the crime, the imposable penalty,
following Article 64(5)21 of the Revised Penal Code, is prision
mayor, the penalty next lower to that prescribed by law, in the
period that the court may deem applicable. Applying the
Indeterminate Sentence Law, the maximum penalty to be
imposed shall be taken from the medium period of prision mayor,
while the minimum shall be taken from within the range of the
penalty next lower in degree, which is prision correccional.
Hence, the imposable penalty on the appellant is imprisonment
from six (6) years of prision correccional, as minimum, to eight (8)
years and one (1) day of prision mayor, as maximum.
It is, likewise, necessary to modify the damages awarded by the
trial court. The award of ₱100,000 as actual damages
representing funeral and wake expenses should be deleted as
there were no receipts or any other tangible documents
presented to support the said award.22 However, the award of
attorney’s fees in the amount of ₱50,000 is proper considering
that the records showed that the heirs of the victim engaged the
services of a private prosecutor. The recovery of attorney’s fees
in the concept of actual or compensatory damages is allowed
under the circumstances provided in Article 2208 of the Civil
Code, one of which is when the court deems it just and equitable
that attorney’s fees and expenses of litigation should be
recovered.23 The award of ₱50,000 as civil indemnity24 to the
heirs of Anthony, as well as ₱25,000 as temperate damages, 25 is,
likewise, warranted pursuant to prevailing jurisprudence.

WHEREFORE, the Decision dated March 18, 1999 of the

Regional Trial Court of Ormoc City, Branch 35, in Criminal Case
No. 5217-0 is AFFIRMED WITH MODIFICATIONS. The appellant
Dennis Torpio y Estrera is found guilty beyond reasonable doubt
of Homicide under Article 249 of the Revised Penal Code and is
sentenced to suffer an indeterminate penalty from six (6) years of
prision correccional, as minimum, to eight (8) years and one (1)
day of prision mayor in its medium period, as maximum. He is
further ordered to pay the heirs of the said victim, the amounts of
Fifty Thousand Pesos (₱50,000) as civil indemnity, Twenty-Five
Thousand Pesos (₱25,000) as temperate damages and Fifty
Thousand Pesos (₱50,000) as attorney’s fees.

SO ORDERED.

Puno, Quisumbing, Austria-Martinez, and Tinga, JJ., concur.

People vs. Muit G.R. No. L-48875; 117 SCRA 696 Tinamban, Camarines Sur. 1 Because of said stage play and the
October 21, 1982 fact that Mrs. Muit was the Barangay Zone President while
Torrero was the Zone Auditor 2 they used to meet frequently.
Republic of the Philippines These meetings spawned rumors around the barrio that they
SUPREME COURT were having an affair, which eventually reached the ear of the
Manila accused, Delfin Muit, sometime in December of 1975. 3

FIRST DIVISION
G.R. No. L-48875 October 21, 1982
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DELFIN MUIT, defendant-appellant.
The Solicitor General for appellee.
Luis General, Jr., for appellant.
MELENCIO-HERRERA, J.:
Appeal from the Decision of the Court of First Instance of
Camarines Sur, Branch I (Naga City), in Criminal Case No. R-7
(1847), convicting the accused Delfin Muit, a retired PC 2nd
Lieutenant, of Murder, and sentencing him to suffer the penalty
of reclusion perpetual for the gunning down of the victim, Rodolfo
Torrero.
Before said victim was shot and killed, he and the accused's wife,
Rosario Muit, played as the leading man and the leading lady in a
drama presentation staged in barrio Tamban, municipality of
In the afternoon of February 26, 1976, at around 3:00 o'clock,
Rodolfo Torrero was killed in the front yard of the house of the
accused in Barrio Tamban, Camarines Sur. Said victim suffered
three (3) gunshot wounds, the one on his chest proving fatal. 4
The prosecution narrated the tragic incident as follows:
On February 26, 1976 at about 2:45 o'clock in the
afternoon, while the deceased Rodolfo Torrero, his
wife Purificacion Nidea-Torrero, mother-in-law
Maria Bataller, friend Benigno Gubatan and i child
Francis Tresvalles, were passing by the house of
accused Delfin Muit at barrio Tamban, Tinambac,
Camarines Sur, on their Nay home from a picnic,
the accused invited them to his house to take a rest
(pp. 42, 44 tsn., Sept. 6, 1976; p. 130 tsn., Sept. 9,
1976). At that time Muit was alone as his wife and
children were not around pp. 5 & 24, tsn., Oct. 24,
1977). Once the group was inside his house,
accused Muit who is a retired PC lieutenant
remarked that his invitation showed that he had no
ill-feeling against the Torreros and that he knew the
latter had no ill-feeling also against him (p. 5, tsn.,
Sept. .1976; p. 131, tsn., Sept. 9, 1976). As they
engaged in some amenities, a group of barangay
members and PC authorities in !barge of the
sanitation and cleanliness program on that
particular lay, which was Community Day, paid
them a visit, and after a short talk, said group left (p.
57, tsn., Sept. 6, 1976). The deceased Torrero
conducted the group on their way out and upon his
return, accused Muit requested him to take a seat
(p. 58, Id).
The accused then confronted Rodolfo Torrero why
the latter always visits his wife even during
nighttime and why he often invites her out. Torrero
replied that being the barangay zone auditor, he
had to confer with the accused's wife on barangay
matters as the latter was the barangay zone
president (pp. 135-136, tsn., Sept. 9, 1976). .The
accused then asked why Torrero even gave food
and money to his (accused's) children if he had no
bad intention at all on his wife (id). Torrero's wife
answered that they did it out of pity because there
were times when they would see the accused's
children in need of food and money (id). The
accused, however, angrily stood up and countered,
"Why should you give when your husband had also
a family to support?" (p. 138, Id). To avoid any
trouble, the deceased Torrero likewise stood up and
said, 'If that is the way we talked about this will end
to nothing, so it is better that I should leave'(p.
139, Id), and he proceeded to move out of the
house (id).
When Torrero was already outside the house of the
accused and while walking along the pathway, the
accused followed him and on reaching the door the
accused shouted, "Wait because we have not yet
finished". At that instant, the accused raised his left
hand towards Torrero and with his right hand, he
pulled out his .45 caliber pistol and aimed it at the
deceased (pp. 140-141, Id). Angrily, he fired his gun
at Torrero who was just 3½ meters away, hitting the
latter at the lower left side below the nape (pp. 22-
24, & 44, tsn., Sept. 6 & 9, 1976; Necropsy Report,
Exh. "A", Rec.).<äre||anº•1àw> On being hit by the
bullet, Torrero spun from his left to the right, with his
two hands inclined to the right, his face writhing in
pain, his left elbow raised parallel to his armpit and
his right hand placed on his breast (pp. 65-66, tsn.,
Sept. 6, 1976).
Upon hearing the gunshot, witness Gubatan
immediately grabbed and held the accused from
behind with an embrace, and said, "Manoy Delfin,
why are you like that?"(pp. 63-64, Id). But as soon
as Gubatan embraced the accused from behind, a
second shot was fired, this time hitting the elevated
left hand of Torrero, with the bullet penetrating
through the breast (pp. 11-12, & 88, Id; Necropsy
Report, Exh. "A", Rec.). Consequently, Torrero fell
on his knees, bent forward with face downward and
body in a prone position his left elbow supporting
him on his left lap while his right hand extended to
the ground (p. 145, tsn., Sept. 9, 1976). Witness
Gubatan on the other hand tightened his grip
around the accused as he tried to wrestle with him
(p. 67, tsn., Sept. 6, 1976).
The wife of Torrero, who was shocked by the first
shot thereupon rushed towards her fallen husband
(p. 143, 145-146, tsn., Sept. 9, 1976). But the
accused on seeing Mrs. Torrero rushed towards the
 deceased, aimed his gun at her (p. 68, tsn., Sept. 6,
1976). Fortunately, witness Gubatan quickly
grabbed the right forearm of the accused that held
the gun and jerked it upward so that the third shot
was fired towards the sky, thus missing its target
Id). Witness Gubatan then said, "Manoy Delfin, that
is enough" (id). Gubatan thereafter moved the
accused away and brought him near a coconut tree
(id.). Mrs. Torrero, on the other hand, hugged her
husband and cried for help, even as blood was
oozing out from the deceased's body and mouth
(pp. 67, 146-147, Id). Shortly thereafter, Torrero
died (Exh. "B", Rec.).
Near the coconut tree, the accused tried to free
himself from the hold of Gubatan. He even pointed
his gun at Gubatan and said, "Set me free Benny or
I will shoot you." (p. 69, tsn., Sept. 6, 1976). When
Gubatan could no longer hold the accused as the
latter kept on struggling, he let him go and said,
"Alright Kuya Delfin, shoot me, after all I have no
fault"(pp. 69-70, Id). Slowly, the accused put down
his arm, his eyes at static condition (id). He
(appellant) then started to move away, and as he
did, he made a short last look at his victim, after
which, he continued on his way (id)... 5
The evidence discloses that the accused surrendered himself
and turned in the pistol he had used to the Detachment
Commander of the Tamban Police Patrol Base soon after the
incident.
On the other hand, the defense presented this version:
... At about 2:45 p.m., 26 February 1976, the late
Rodolfo Torrero, accompanied by his wife,
Purificacion Nidea-Torrero, Benigno Gubatan,
Frances Tresvalles, and his mother, Maria Bataller,
had come from a picnic (it was a Sunday), when
they passed by the house of Muit (in barrio
Tamban, Tinambac, Camarines Sur). Muit was at
the door of his house, because he was about to
leave to visit his farm and had tucked his 45-caliber
pistol in his front waistline, under his T-shirt. Muit
invited Torrero and his companions to drop by. The
invitation was accepted. Muit was alone in his
house, because his wife and children were in Naga
City at that time.
After the usual amenities between host and guests,
another group, which was conducting an inspection
of the houses in the zone in connection with
community activities, arrived. This second group
soon left, and Muit and the group of Torrero
resumed their conversation.
Torrero was carrying a bolo which was slung in its
scabbard and was hanging from his right shoulder.
He was left-handed.
When the conversation was resumed, Torrero took
offense at what Muit brought up and, in a huff,
stood up and walked toward the door. Muit followed
him, asking Torrero not to leave, then a shot was
fired. Other shots — the number is controverted —
were fired and Torrero fell.
Gubatan embraced Muit from behind before or after
— this is also controversial — the second shot.
Torrero suffered from 3 gunshot wounds: 1) on the
left arm; 2) on the chest, the fatal one, the bullet
entering from the front and exiting at the back; and
3) a superficial one on the nape.
These wounds were inflicted by shots fired from the
.45-caliber pistol licensed in the name of Muit as a
retired PC second lieutenant. The first shot,
deliberately fired by Muit, hit Torrero on the left arm;
the second shot, fired while the gun was still held by
Muit, hit Torrero on the chest; while the third wound
was obviously inflicted last, although none of the
witnesses could ten the precise moment of its
infliction. It was, however, the opinion of Dr.
Froyalde (TSN-trial of 6 Sept. 1976, p. 23) that this
wound was inflicted when Torrero was already lying
on the ground.
The bolo of Torrero was already drawn from its
scabbard when the sketch of the scene was drawn
by Patrolman Darilay, minutes after the shooting,
and was also shown in the photographs taken of
the body of Torrero where it fell (Exhs. 1, 1-B & 1-
C). This fact was also confirmed by Gubatan (TSN-
trial of 6 Sept. 1976, p. 79), and by Mrs. Torrero
(TSN-trial of 9 Sept. 1976, p. 159).
Muit did not get near the body of Torrero after the
latter fell, but immediately proceeded to the PC
detachment to surrender himself and his gun. 6
The Trial Court accorded credence to the version of the
prosecution and, on July 24, 1978, rendered its Decision with the
following dispositive portion:
WHEREFORE, the Court finds the accused, Delfin
Muit, guilty beyond reasonable doubt of the crime of
Murder for having gunned down the late Rodolfo
Torrero treacherously to death (People vs. Aguilar,
86 Phil. 693), with the aggravating circumstances of
evident premeditation (People vs. Causi, G. R. No.
L-16498, June 29, 1963). However, the accused
Delfin Muit, after the deadly incident surrendered
himself including the 45 caliber pistol and its license
to the detachment commander of Tamban, which
act is considered a mitigating circumstance which
offsets the aggravating circumstance of evident
premeditation, hereby sentences him to suffer the
penalty of RECLUSION PERPETUA (life) and to
pay the following damages to the heirs of the victim,
as itemized, to wit:
(a) P12,000.00 by reason of the death of the victim,
Rodolfo Torrero;
(b) P5,000.00 in concept of actual and moral
damages; and
(c) P5,000.00 in concept of exemplary damages,
and to pay the costs. 7
In this appeal, appellant maintains that the Trial Court erred:
1. In denying the accused his right to be heard by
refusing to allow the accused to present a vital
 witness in his defense who could have proved that
the principal witness for the prosecution, far from
being the disinterested person that he claimed to
be, was actually interested personally in
prosecuting the accused;
2. In denying the accused his right to due process
of law, by —
2.1 — Ignoring facts established clearly in
evidence, and relying instead on baseless
presumptions;
2.2 — Violating the accused's right to remain silent;
and
2.3 — Being palpably biased against the accused;
and
3. In rejecting the accused's plea of self-defense
and accident; and in convicting the accused. 8
The appeal is without merit.
1. After trial had terminated and within the period to file
memoranda, the defense moved to reopen trial "so that Jesus
Evangelista may be allowed to testify and the defense could
prove the bias of the said principal witness (Benigno Gubatan) for
the prosecution." Jesus Evangelista was to testify on the alleged
illicit relations between prosecution witness Benigno Gubatan
and Mrs. Evangelista, formerly the victim's wife, who remarried
after she was widowed. The Trial Court denied reopening on the
ground that even assuming such liaison, it had happened in 1977
whereas Gubatan had submitted himself as government witness
as early as March 4, 1976, besides the fact that it would not
prove bias on the part of Gubatan, who was an eyewitness to the
tragic incident, nor the culpability or non-culpability of the
accused.
We find no reversible error. The reopening of a case for the
reception of further evidence lies within the sound discretion of
the Trial Court. 9 Besides, as pointed out by said Court, it is very
possible that Jesus Evangelista was merely smitten with
jealousy, and the alleged illicit relationship pure conjecture.
Additionally, even if Jesus Evangelista's testimony could prove
bias on the part of Benigno Gubatan, the latter was not the only
prosecution witness who testified as to the culpability of
appellant. It should also be noted that Benigno Gubatan, was
subjected to rigid cross-examination by the defense counsel, who
was thereby given all the opportunity to impeach the credibility of
said declarant. 10
2. Contrary to the defense posture, the accused was fully
afforded his right to be heard and to present his defense. The
criterion is:
... if an accused has been heard in a court of
competent jurisdiction, and proceeded against
under the orderly processes of law, and only
punished after inquiry and investigation, upon
notice to him, with an opportunity to be heard, and a
judgment awarded within the authority of a
constitutional law, then he has had due process of
law,... 11
The appealed Decision sufficiently meets that standard. The
judgment of the Trial Court is substantiated by the evidence. The
contention that it had ignored and unreasonably rejected the
testimonies of defense witnesses Herminigildo Bermido and
Alfredo Martinez is untenable. Bermido's story that he had gone
to barrio Tamban, precisely to see the accused in connection with
the purchase of railroad ties; that he had witnessed the shooting
incident from a distance and that he saw the deceased try to
hack the accused, but that he left immediately after; that he never
mentioned the incident to the authorities, nor did he approach the
accused after the incident, is unnatural behavior and does not
inspire belief. Having gone precisely to meet with the accused he
could have shown concern at the very least. Martinez did not
witness the actual incident because he was buying a cigarette but
merely corroborated Bermido's story that they had gone to Barrio
Tamban precisely to see the accused. A reading of their
declarations, indeed, casts doubt as to their presence near the
scene of the crime. Their version was unconvincing compared to
the forthright testimonies of the prosecution witnesses. Besides,
the appraisal by a Trial Court of the credibility of witnesses is
entitled to the greatest respect in the absence of established
exceptions.
The defense faults the Trial Court for having violated the
accused's right to remain silent in that the Court took against the
latter his failure to report to the Detachment Commander at the
time of his surrender his plea of self-defense. What the Trial
Judge did, however, was merely to draw an inference from the
accused's failure to volunteer that information, which would have
been the most natural reaction. It should also be noted that the
accused was neither under investigation nor interrogation so that
his right against self-incrimination was never endangered.
The alleged bias of the Trial Judge against the accused is without
basis. The clarificatory questions propounded by him during the
trial were intended to test the credibility of witnesses and to
extract the truth. That the Trial Judge had ordered the accused
transferred to Muntinlupa after conviction is no manifestation of
bias considering that this Tribunal had upheld said action in its
Resolution dated February 21, 1979.
3. The accused's plea of self-defense and accident is unavailing
for being inconsistent with the environmental milieu of the case.
Having invoked self-defense, he has the burden of proving
it, 12 and must establish the same by clear, satisfactory and
convincing evidence. 13
The defense submission is that the accused had no intent to kill
and that he drew his gun in self-defense and to disarm the victim
of his bolo; that the first short, which he had deliberately fired, hit
the victim on his left arm; that the fatal second shot which hit the
victim on his chest, was fired accidentally as a direct
consequence of Gubatan's embracing the accused from behind;
while the third shot hit the victim at the nape of the neck when the
victim was already prostrate on the ground.
That was not the sequence of the occurrence as established by
the evidence. The victim did not try to hack the accused with his
(victim's) bolo that hung from his right shoulder. There was no
reason for him to physically harm the accused having already
decided to leave the accused's house in order to avoid
trouble. 14 He was already out of the front yard of the accused's
house, about four meters more or less from its "lean to," 15 when
he was shot at. The fact that the bolo was found lying on the
victim's side out of its scabbard is no proof that the victim had
used it. It must have dropped as the accuse(. fell to the ground
after having been hit. What is established by the evidence is that
the victim was hit by a bullet at the nape or back portion of the
neck at the first shot. The victim spinned around from left to right
involuntarily, at which point he was hit by the second shot on the
left arm and on his chest. The third shot did not hit its mark as it
was deflected upward by Gubatan who jerked the accused's
hand skyward. Clearly, therefore, the accused had treacherously
shot the victim at the back thereby disproving the element of
unlawful aggression on the victim's part, which the defense seeks
to establish as an essential element of self-defense.
Appellant's submission that the fatal second shot was
unintentional and was the direct consequence of the act of
Gubatan in embracing him from behind is also untenable. As
demonstrated by Gubatan during the trial, Gubatan had
embraced appellant around the chest in such a way that
appellant was still free to use his right hand which was holding
the gun.
COURT
Q How come that he was able to fire
for the second time when you were
holding the accused?
A You noticed, sir, that in my
demonstration I was holding him like
this, instead of down there, so this
was free, the right hand. (witness
referring to the right hand) 16
Treachery has been undeniably proven. The accused was armed
with a 45Treachery has been undeniably proven. The accused
was armed with a .45 caliber pistol and made full use of it. The
victim was first hit at the nape or back portion of the neck 17 He
was fired at suddenly and unexpectedly, devoid of any
opportunity to defend himself or to retaliate.
COURT
Q When he was shot at, was the back
of your husband towards Mr. Muit or
Mr. Muit was facing your husband or
your husband facing Mr. Muit?
A His back was towards Mr. Muit.
Q In other words, he was shot at the
back?
A Yes, sir.
xxx xxx xxx
COURT
Q The first time you said he was hit on
the side, will you indicate that?
A Her (witness touching the lower part
of the neck at the back of the
interpreter).
Q That was the first time he was hit
there at the first Shot?
A Yes, sir. 18
There should be no question then that the crime committed is
Murder with the qualifying aggravating circumstance of treachery.
We agree with the defense, however, that evident premeditation
as a generic aggravating circumstance, has not been adequately
shown. To properly appreciate that circumstance, it is necessary
to establish: (1) the time when the offender determined to commit Costs against the accused-appellant, Delfin Muit.
the crime; (2) an act manifestly indicating that the culprit has
clung to this determination; and (3) a sufficient lapse of time SO ORDERED.
between the determination and the execution to allow him to
reflect. 19 As there is dearth of evidence as to when appellant first Teehankee (Chairman), Makasiar, Plana, Vasquez, Relova and
conceived of killing the deceased and that he was afforded Gutierrez, Jr., JJ., concur.
sufficient time to reflect on the consequences of his contemplated
crime before its final execution, the circumstance of evident
premeditation cannot be appreciated.

On the other side of the coin, to be appreciated in favor of the

accused are the mitigating circumstances of voluntary surrender,
and passion and obfuscation. There can be no question that the
accused was driven strongly by jealousy because of the rumors
regarding the amorous relationship between his wife and the
victim. The feeling of resentment resulting from rivalry in amorous
relations with a woman is a powerful stimulant to jealousy and is
sufficient to produce loss of reason and self-control. In other
words, it is a powerful instigator of jealousy and prone to produce
anger and obfuscation. 20

The crime of Murder, under Article 248 of the Revised Penal

Code, is punishable by reclusion temporal in its maximum period
to death. Considering the two mitigating circumstances present,
without any aggravating circumstances to offset them, the penalty
next lower to that prescribed is imposable, or, prision mayor in its
maximum period to reclusion temporal in its medium period,

WHEREFORE, modifying the judgment appealed from, the

accused Delfin Muit, is hereby sentenced to suffer the
indeterminate penalty of eight (8) years of prision mayor, as
minimum, to fourteen (14) years and eight (8) months of reclusion
temporal, as maximum, with the judgment being affirmed in an
other respects.
US vs. Hicks G.R. No. 4971; 14 Phil. 217 in her room with Corporal Current, and after conversing with her
September 23, 1909 in the Moro dialect for a few minutes, asked the corporal to come
out of said room; in response thereto the corporal appeared at
Republic of the Philippines the door of the room, and after a short conversation, Current
SUPREME COURT approached Hicks and they shook hands, when Hicks asked him
Manila the following question: "Did I not tell you to leave this woman
alone?," to which Current replied: "That is all right, she told me
EN BANC that she did not want to live with you any longer, but if she
wishes, she may quit me, and you can live with her." The
G.R. No. 4971 September 23, 1909 accused then replied: "God damn, I have made up my mind;" and
as Corporal Current saw that Hicks, when, he said this, was
THE UNITED STATES, plaintiff, drawing a revolver from his trousers' pocket, he caught him by
vs. the hand, but the latter, snatching his hand roughly away, said:
AUGUSTUS HICKS, defendant. "Don't do that," whereupon Current jumped into the room, hiding
himself behind the partition, just as Hicks drew his revolver and
Office of the Solicitor-General Harvey for plaintiff. fired at Agustina Sola who was close by in the sala of the house.
Jose Robles Lahesa for defendant. The bullet struck her in the left side of the breast; she fell to the
ground, and died in a little more than an hour later.
TORRES, J.:
Upon hearing the shot Edward Robinson, who was also in the
For about five years, from September, 1902, to November, 1907, house, went to render assistance and wrested the weapon from
Augustus Hicks, an Afro-American, and Agustina Sola, a the hand of the accused. The latter immediately fled from the
Christian Moro woman, illicitly lived together in the municipality of house and gave himself up to the chief of police of the town, H. L.
Parang, Cotabato, Moro Province, until trouble arising between Martin, asking him to lock him up in jail; and, when a few minutes
them in the last-mentioned month of 1907, Agustina quitted later a policeman came running in and reported that Hicks had
Hick's house, and, separation from him, went to live with her fired a shot at Agustina, the said chief of police caused Hicks to
brother-in-law, Luis Corrales. A few days later she contracted be arrested. The latter, when once in jail, threw eight revolver
new relations with another negro named Wallace Current, a cartridges out of the window; these were picked up by a
corporal in the Army who then went to live in the said house. policeman who reported the occurrence and delivered the
cartridges to his chief.
On the 21st of December following, at about 7:30 p. m., Augustus
Hicks together with a soldier named Lloyd Nickens called at said In view of the foregoing the provincial fiscal on the 8th of
house, and from the sala called out to his old mistress who was February, 1908, filed a complaint with the Court of First Instance
of said province charging Augustus Hicks with the crime of
murder. Proceedings were instituted, the trial court, after hearing
the evidence adduced, entered judgment on the 10th of
September of the same year, sentencing the accused to the
penalty of death, to be executed according to the law, to
indemnify the heirs of the deceased in the sum of P1,000, and to
pay the costs. The case has been submitted to this court for
review.
The above-stated facts, which have been fully proven in the
present case, constitute the crime of murder, defined and
punished by article 403 of the Penal Code, in that the woman
Agustina Sola met a violent death, with the qualifying
circumstance of treachery (alevosia), she being suddenly and
roughly attacked and unexpectedly fired upon with a 45-caliber
revolver, at close, if not point blank range, while the injured
woman was unarmed and unprepared, and at a time when she
was listening to a conversation, in which she was concerned,
between her aggressor and third person, and after usual and
customary words had passed between her and her aggressor.
From all of the foregoing it is logically inferred that means,
manners, and forms were employed in attack that directly and
specially insured the consummation of the crime without such risk
to the author thereof as might have been offered by the victim
who, owing to the suddenness of the attack, was doubtless
unable to flee from the place where she was standing, or even
escape or divert the weapon.
The accused, Augustus Hicks, pleaded not guilty, but
notwithstanding his exculpatory allegations which were certainly
not borne out at the trial, the evidence in the case is absolutely at
variance therewith and conclusively establishes, beyond
peradventure of doubt, his culpability as the sole fully convicted
author of the violent and treacherous death of his former
mistress, Agustina Sola.
It is alleged by the accused that when he withdrew his hand from
that of Current, who had seized him, he fell backward but
managed to support himself on his two hands, and when he got
up again the said corporal threatened him with a revolver thrust
into his face; whereupon he also drew his revolver, just as
Edward Robinson caught him from behind, when his revolver
went off, the bullet striking the deceased.
This allegation appears to be at variance with the testimony of
the witnesses Wallace Current, Edward Robinson, Luis Corrales,
and Lloyd Nickens in their respective declaration, especially with
that of the second and third, who witnessed the actual firing of
the shot by the aggressor at the deceased, as shown by the fact
that Robinson immediately approached the accused in order to
take his weapon away from him which he succeeded in doing
after a brief struggle, whereupon the aggressor ran out of the
house. Thus, the shot that struck the deceased in the breast and
caused her death was not due to an accident but to a willful and
premeditated act on the part of the aggressor with intent to
deprive the victim of her life.
In addition to the qualifying circumstance of treachery, as above
referred to, the presence of other aggravating circumstances,
such as premeditation, and the fact that the crime was committed
in the dwelling of the deceased should be taken into
consideration. The last-mentioned circumstances appears proven
from the testimony of several witnesses who were examined at
the trial of the case.
Inasmuch as in the present case the crime has already been
qualified as committed with treachery, the circumstance of
premeditation should only be considered as a merely generic
one. Premeditation is, however, manifest and evident by reason
of the open acts executed by the accused. According to the
testimony of Charles Gatchery and Eugenio R. Whited, Hicks
asked leave from the former to be absent from the canteen where
he was working on the morning of the day when the affray
occurred, alleging that his mind was unsettled and that he feared
getting into trouble. It is also shown by the fact that Whited, who
was in Hicks' house about noon upon the latter's invitation, and
while both where drinking gin, and while the revolver, the
instrument of the crime, was lying on the table on which were
also several loaded cartridges, heard the accused repeatedly
say, referring to the deceased, that her time had come, adding
that he would rather see her dead than in the arms of another
man, and when the accused went to bed apparently very much
worried, and refusing to answer when called, the witness left him.
On the day after the crime the police found on a table in the
cuprit's house several loaded cartridges, a bottle of oil and a
piece of cloth used undoubtedly for cleaning the revolver.
inasmuch as the only causes which mitigate the criminal
responsibility for the loss of self-control are such as originate
from legitimate feelings, not those which arise from vicious,
unworthy, and immoral passions.
From the foregoing considerations, and as the judgment
appealed from is in accordance with the law, it is our opinion that
the same should be affirmed, as we do hereby affirm it with costs,
provided, however, that the death penalty shall be executed
according to the law in force, and that in the event of a pardon
being granted, the culprit shall suffer the accessory penalties of
article 53 of the Penal Code unless the same be expressly
remitted in the pardon. So ordered.
Arellano, C. J., Johnson, Carson, and Moreland, JJ., concur.

All the foregoing circumstances conclusively prove that the

accused, deliberately and after due reflection had resolved to kill
the woman who had left him for another man, and in order to
accomplish his perverse intention with safety, notwithstanding the
fact that he was already provided with a clean and well-prepared
weapon and carried other loaded cartridges besides those
already in his revolver, he entered the house, greeting everyone
courteously and conversed with his victim, in what appeared to
be a proper manner, disguising his intention and claiming her by
his apparent repose and tranquility, doubtless in order to
successfully accomplish his criminal design, behaving himself
properly as he had planed to do beforehand.

As against the two foregoing aggravating circumstances no

mitigating circumstances is present, not even that mentioned in
paragraph 7 of article 9 of the Penal Code, to wit loss of reason
and self-control produced by jealousy as alleged by the defense,
US vs. dela Cruz G.R. No. L-7094; 22 Phil. 429
March 29, 1912
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-7094 March 29, 1912
THE UNITED STATES, plaintiff-appellee,
vs.
HILARIO DE LA CRUZ, defendant-appellant.
F.C. Fisher for appellant.
Acting Attorney-General Harvey for appellee.
CARSON, J.:
The guilt of the defendant and appellant of the crime of homicide
of which he was convicted in the court below is conclusively
established by the evidenced of record.
The trial court was of opinion that its commission was not marked
by either aggravating or extenuating circumstances, and
sentenced the convict to fourteen years eight months and one
day of reclusion temporal, the medium degree of the penalty
prescribed by the code. Burt we are of opinion that the
extenuating circumstance set out in subsection 7 of article 9
should have been taken into consideration, and that the
prescribed penalty should have been imposed in its minimum
degree. Subsection 7 of article 9 is as follows:
The following are extenuating circumstances:
xxx xxx xxx
That of having acted upon an impulse so powerful as
naturally to have produced passion and obfuscation.
The evidence clearly discloses that the convict, in the heat of
passion, killed the deceased, who had theretofore been
his querida (concubine or lover) upon discovering her in
flagrante in carnal communication with a mutual acquaintance.
We think that under the circumstances the convict was entitled to
have this fact taken into consideration in extenuation of his
offense under the provisions of the above-cited article.
This was the view taken by the Court of Spain upon a similar
state of facts as set forth in its sentence of July 4, 1892, which is
summarized by Viada (p. 69, in question 19, art. 9 of vol. 6) as
follows:
Shall he who kills a woman with whom he is living in
concubinage for having caught her in her underclothes
with another party and afterwards shoots himself, inflicting
a serious wound, be responsible for that crime with the
extenuating circumstance of having acted with violent
passion and obfuscation? The Audiencia of Santiago de
Cuba did not so hold and its judgment was reversed by the
supreme court for the improper disregard of article 9,
number 8, of the Penal Code for Cuba and Puerto Rico:
"The facts held to be true by the trial court, and which were
the immediate cause of the crime by producing in the
accused strong emotion which impelled him to the criminal
act and even to attempt his own life, were a sufficient
impulse in the natural and ordinary course to produce the
 violent passion and obfuscation which the law regards as
a special reason for extenuation, and as the judgment did
not take into consideration the 8th circumstance of article
9 of the code, the Audiencia rendering it seems to have
violated this legal provision."
It is true that in the case of U.S. vs. Hicks (14 Phil. Rep.., 217),
we held that the "causes which mitigate the criminal responsibility
for the loss of self-control are such as originate from legitimate
feelings, not those which arise from vicious, unworthy, and
immoral passions," and declined to give the benefit of the
provisions of this article to the convict in that case on the ground
that the alleged causes for his loss of self-control did not
"originate from legitimate feelings." But in that case we found as
facts that:
All the foregoing circumstances conclusively prove that the
accused, deliberately and after due reflection had resolved
to kill the woman who had left him for another man, and in
order to accomplish his perverse intention with safety,
notwithstanding the fact that he was already provided with
a clean and well-prepared weapon and carried other
loaded cartridges besides those already in his revolver, he
entered the house, greeting everyone courteously and
conversed with his victim, in what appeared to be in a
proper manner, disguising his intention and calming her by
his apparent repose and tranquility, doubtless in order to
successfully accomplish his criminal design, behaving
himself properly as he had planned to do beforehand.
In the former case the cause alleged "passion and obfuscation" of
the aggressor was the convict's vexation, disappointment and
deliberate anger engendered by the refusal of the woman to
continue to live in illicit relations with him, which she had a perfect
right to do; his reason for killing her being merely that he had
elected to leave him and with his full knowledge to go and live
with another man. In the present case however, the impulse upon
which defendant acted and which naturally "produced passion
and obfuscation" was not that the woman declined to have illicit
relations with him, but the sudden revelation that she was untrue
to him, and his discovery of her in flagrante in the arms of
another. As said by the supreme court of Spain in the above-cited
decision, this was a "sufficient impulse" in the ordinary and
natural course of things to produce the passion and obfuscation
which the law declares to be one of the extenuating
circumstances to be taken into consideration by the court.
Modified by a finding that the commission of the crime was
marked with the extenuating circumstance set out in subsection 7
of article 9, and by the reduction of the penalty of fourteen years
eight months and one day of reclusion temporal to twelve years
and one day of reclusion temporal, the judgment of conviction
and the sentence imposed by the trial court should be and are
hereby affirmed, with the costs of this instance against the
appellant.
Arellano, C.J., Torres, Johnson and Trent, JJ., concur.
People vs. Germina G.R. No. 120881; 290 SCRA 146
May 19, 1998
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 120881 May 19, 1998
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ELPIDIO GERMINA y MALDO, accused-appellant,
MARTINEZ, J.:
Charged with, tried for and thereafter convicted or murder under
an information reading:
That on or about the 9th day of November, 1994 in
Valenzuela, Metro Manila and within the jurisdiction
of this Honorable Court, the above-named accused,
without any juristifiable cause, with treachery,
evident premeditation and with deliberate intent to
kill, did then and there willfully, unlawfully and
feloniously attack and shot (sic) with a handgun one
RAYMUNDO ANGELES Y VILLAMOR hitting him
on the back of his body thereby inflicting upon said
victim serious physical injuries which directly
caused his death.
Contrary to law. 1
herein accused-appellant Elpidio Germina y Maldo was
sentenced by the Regional Trial Court, Branch 171, of
Valenzuela, Metro Manila to suffer the penalty
of Reclusion Perpetua and to pay the victim's heirs
P50,000.00 as indemnity, funeral expenses amounting to
P51,000.00 and costs. 2
The prosecution, based on eye witness accounts of Marcelino
Almazan, 3 Gaudencio Angeles 4 and Ramil Regencia 5 (victim's
brother-in-law, father and neighbor, respectively), detailed a
treacherous killing of Reymundo Angeles (hereafter, Raymund.).
Culled from their individual testimonies, it appears that at around
7:30 o'clock in the evening of November 9, 1994, appellant,
armed with a revolver, arrived at the Angeles residence at
Engracia Street, Bahay Pare, Marulas, Valenzuela looking for
Raymund who was no there at that time. A heated conversation
took place between Raymund's relatives (parent, brothers and
sisters) and appellant concerning a quarrel that transpired earlier
between appellant's brother and Raymund. Moments later,
Raymund arrived. Appellant, upon spotting him, drew his gun
which prompted Raymund and his relatives to scamper for safety.
Hardly had Raymund gained momentum in his retreat when he
stumbled on a street hump and fell on the ground face down.
Appellant easily caught up with and then fired at his
defenselessly positioned prey — the single bullet finding its mark
on the back of Raymund's neck. Raymund was rushed to the
Santisimo Rosario General Hospital for medical treatment as
soon as appellant darted away from the crime scene, but to no
avail.
The autopsy report 6 and testimony 7 of prosecution witness Dr.
Valentin Bernales of the NBI revealed that Raymund succumbed
to a gunshot wound found at the back right side of his buttock
measuring 0.8 x 0.7 cms., without any exit wound. Dr. Bernales
clarified that as the death bullet has a downward trajectory, the
victim must have been in a lying, face-down position when fired
upon by the assailant.
Raymund's mother, Nenita Angeles, testified that the family spent
P51,700.00 for her son's funeral. 8
Appellant, for his part, did not deny having shot Raymund, but his
story, 9 corroborated by his wife Nida Germina, 10 painted a
picture of self-defense. Appellant's story is that he sought
Raymund on the night of November 9, 1994 to verify news that
the latter mauled and stabbed his mentally retarded brother,
Rafael. At the Angeles residence, appellant, together with his
wife Nida and Rafael, talked to Raymund's relatives about the
mauling/stabbing incident. Shortly thereafter, Raymund
appeared, joined the group and with a double-bladed weapon in
his right hand, cursed appellant: "Putang ina mo, papatayin ko
kayo!" (You son of a bitch, I will kill you all!) The relatives of
raymund tried to hold him at bay but to no avail. Appellant then
attempted to run away but as he found himself cornered against
a wall and when Raymund was about to strike him with the
bladed weapon, he fired at Raymund. Appellant left the place
immediately thereafter and voluntarily gave himself up to SPO2
Henry Marteja.
The trial court was of the impression that the prosecution's story
and witnesses were more credible than those of the defense. It
struck down appellant's tale of self-defense — particularly of a
frontal encounter with Raymund — in the face of the fact, as duly
established by testimonial evidence and the autopsy report, that
Raymund was shot at the back while lying face down on the
ground. Treachery qualified Raymund's killing to murder for it is
apparent, said the court, that appellant took advantage of the
helpless condition of Raymund to insure its execution without risk
to himself. Reclusion Perpetua, and not death, 11 was the penalty
meted appellant due to the mitigating circumstances of voluntary
surrender and passion which the trial court appreciated in this
wise:
The accused voluntarily giving up himself to the
police authorities immediately after the commission
of the offense to which the prosecution did not
refute, shows act of repentance, respect for the law
and his willingness to suffer and pay for the
consequences of his criminal acts and a clear
indication of his moral disposition favorable to his
reform. The lack of proof of previous conviction or
having (sic) charged of similar or of any felony, lead
to the conclusion that the accused is not beyond
correction or reformation. Not to mention the fact
that he committed the serious crime due to the
maltreatment/physical injuries inflicted by the victim
on his mentally retarded brother, that triggered his
anger which diminish (sic)/weaken (sic) the
exercise of his will power, persuaded the Court to
believe that the imposition of the penalty next lower
to death is reasonable and justified. 12
Appellant comes to us praying, not for his acquittal, but that he be
convicted of homicide only and thus be made to suffer a reduced
penalty corresponding thereto. He claims that there is no
treachery even if it be conceded that he gunned down Raymund
from behind.
There is merit in appellant's plea.
It is true that in a host of cases, this Court has found fatal
assaults from behind as earmarks of treachery, among which are
"People vs. Muyano" 13 and "People vs. Apolonia" 14 cited by the
Solicitor General in the appellee's brief. This should not be
mistaken, however, as a hard and fast rule. The peculiarities of
each case must be taken into account, carefully calibrated, and
the cases of "People vs. Flores" 15 relied upon by appellant and
"People vs. Nemeria" 16 are illuminative examples of a contrary
finding.
In "Flores," the victim Edwin and his companion Demetrio were
innocently passing by a bed factory when the accused, a security
guard of said establishment, apparently drunk, emerged
therefrom and fired at them. Sensing danger, Edwin and
Demetrio ran for their lives but accused gave chase. Accused
fired another round, this time hitting Edwin at the back. This
Court, in negating the existence of treachery, made this
clarification:
The mere fact that the victim was shot at the back
while attempting to run away from his assailant
would not per se qualify the crime to murder. . . .
[w]ith the first gunshot, the victim has been placed
on guard and has, in fact, attempted to flee. There
could thus be no treachery since, prior to the attack,
the victim has been forewarned of the danger to his
life and has even attempted, albeit unsuccessfully,
to escape. Moreover, there was absolutely no
evidence to show that accused-
appellant consciously and deliberately employed a
specific form of attack which would specially and
directly ensure its commission without impunity.
(Emphasis ours)
Accused therein was thus found guilty of homicide and not
murder.
The "Nemeria" case is no less enlightening. Accused therein
attacked the victim from behind with a bolo in the presence of at
least five (5) persons all situated at the same portion of the
feeder road where the assault took place. This Court ruled that
the killing was not qualified by treachery, saying, inter alia, that
the accused "has perpetuated the crime in the presence of other
people in the area who, if willing, could have lent support." As in
"Flores", the accused was convicted only of homicide.
This case cannot be treated differently from "Flores" and
"Nemeria." Raymund was well-aware of the danger to his life
since he even managed to run away — without success, however
— before appellant shot him to death. Moreover, in the
immediate vicinity of the crime scene, the front gate of the house
of the victim, were his relatives who certainly were in a position to
give the latter moral and physical support.
If murder was his bent, appellant would not have gone to the
house of the victim. Moreover, if appellant had in mid a way to
attack the victim to insure his death without risk arising from the
latter, why would he engage his (victim) relatives in heated
arguments? If his intention was ambuscade, he could have just
kept his silence and waited for the proper time. Engaging the
relatives in a useless debate would only put the victim on his
guard.
What appears to be the coup de grace to a finding of treachery in
this case is the appreciation by the trial court of the mitigating
circumstance of passion. Passion cannot co-exist with treachery
because in passion, the offender loses his control and reason
while in treachery the means employed are consciously adopted.
One who loses his reason and self-control could not deliberately
employ a particular means, method or form of attack in the
execution of the crime. 17
We end the discussion on treachery by emphasizing that its
presence under the attendant facts has not been proven as fully
and convincingly as the crime itself. The doubt must, therefore,
be resolved in favor of appellant. 18 But while the trial court may
have erred on this issue, its findings as to the presence of the
mitigating circumstances of voluntary surrender and passion,
nonetheless, deserve affirmance. Voluntary surrender was
correctly appreciated because it appeared spontaneous and
unconditional, 19 as appellant's claim that he voluntarily gave
himself up to SPO2 Marteja right after shooting Raymund
remains undisputed. Passion also existed as it clearly arose from
lawful sentiments or legitimate feelings. 20 The trial court's
observation on this point is worth reiterating:
should be within the range of prison correccional, and the
maximum thereof, within the range of prision mayor.
WHEREFORE, premises considered, accused-appellant
ELPIDIO GERMINA y MALDO is hereby found guilty beyond
reasonable doubt of homicide and is thus sentenced to suffer the
indeterminate penalty of six (6) years of prision
correccional maximum as minimum, to ten (10) years of prision
mayor medium as minimum. The Fifty Thousand Pesos
(P50,000.00) indemnity and the Fifty One Thousand Seven
Hundred Pesos (P51,700.00) funeral expenses awarded to the
victim's heirs by the trial court are AFFIRMED. No costs.
SO ORDERED.
Regalado, Melo, Puno and Mendoza, JJ., concur.

. . . he [appellant] committed the serious crime due

to the maltreatment/physical injuries inflicted by the
victim on his mentally retarded brother, that
triggered his anger which diminish (sic)/weaken
(sic) the exercise of his power, . . .

All told, appellant should be convicted of the lesser crime of

Homicide which, under Article 249 of the Revised Penal Code,
carries with it the penalty of reclusion temporal. Considering the
presence of two (2) mitigating circumstances and the absence of
any aggravating circumstance, the imposable penalty is prision
mayor. 21 Applying the Indeterminate Sentence Law, the
minimum of the indeterminate sentence to be meted appellant
People vs. Gonzalez G.R. No. 139542; 359 SCRA 352
June 21, 2001
EN BANC
G.R. No. 139542 June 21, 2001
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
INOCENCIO GONZALEZ, JR., accused-appellant.
DISSENTING OPINION
GONZAGA-REYES, J.:
Many unfortunate tragedies would not have happened if the
improvident use of a firearm did not exacerbate a simple
altercation over traffic. This is one of them.
On a day intended to pay homage to the dead, a pregnant
woman was shot to death in the course of her husband’s
altercation with the accused-appellant and his son along the
Garden of Remembrance within the Loyola Memorial Park in
Marikina. The trial court found the accused guilty of the complex
crime of murder and two counts of frustrated murder and
accordingly sentenced him to death. This case is before us on
automatic review.
The details of what actually transpired in the few seconds
immediately preceding the shooting are controverted by both
parties but the events leading to this tragedy are not disputed.
In the afternoon of October 31, 1998 at about 2:30 p.m. both the
families of the private complainant Noel Andres and that of the
accused-appellant Inocencio Gonzalez were on their way to the
exit of the Loyola Memorial Park. The appellant was driving a
white Isuzu Esteem with his grandson and three housemaids,
while the private complainant was driving a maroon Toyota FX
with his pregnant wife Feliber Andres, his two year old son,
Kenneth, his nephew Kevin and his sister-in-law, Francar Valdez.
At the intersection near the Garden of Remembrance, while the
accused-appellant Gonzalez was turning left towards the exit and
the complainant Noel Andres was headed straight along the road
to the exit their two vehicles almost collided. Noel Andres was
able to timely step on the brakes. The appellant continued driving
along his way while Noel Andres drove behind the appellant’s
vehicle for some time and cut him off when he found the
opportunity to do so.1 Noel Andres then got out of his vehicle and
knocked on the appellant’s car window.2 This is as far as their
versions of the incident coincide.
The prosecution’s version of the incident is that Noel Andres
calmly told the appellant to be careful with his driving and
informed the latter that he, Andres, is with his family and to this
Gonzalez allegedly replied, "Accidents are accidents, what’s your
problem." Andres stated that he saw the appellant turning red in
anger so he decided to go back to his vehicle when he was
blocked by the appellant’s son who said, "Anong problema mo sa
erpat ko." Andres testified that he felt threatened and so he
immediately boarded his vehicle, sat at the driver’s seat, closed
the door, and partially opened the car window just wide enough
to talk back to appellant’s son, Dino. Suddenly, one of his
passengers said "Binaril kami". He turned to his wife Feliber
Andres and saw her bloodied and unconscious. He turned
around and saw his son Kenneth and nephew Kevin were also
wounded. Andres admitted in court that he and Dino were
shouting at each other so that he did not hear the shot. Andres
then got out of his vehicle to warn the appellant not to flee. He
then took the wounded members of his family to the exit where
there was an ambulance standing by. The three were then taken
to the Sta. Monica Hospital and were later transferred to the
Quezon City Medical Center.
The defense’s version of the incident is that Andres cut the
appellant’s path by positioning his FX obliquely along the
appellant’s lane from the latter’s left side. Andres then got out of
his vehicle, stood beside the appellant’s car window, and
repeatedly cursed the appellant, "Putang ina mo, ang tanda-
tanda mo na hindi ka pa marunong magmaneho. Ang bobo-bobo
mo."3 The appellant stayed inside his car and allegedly replied,
"Pasensiya ka na hindi kita nakita, nasilaw ako. Aksidente lang."
The appellant Gonzalez and another witness for the defense,
Quidic, testified that Noel Andres went back to his vehicle to
move it in such a way that it is straight in front of the appellant’s
car. Andres allegedly got out of his vehicle again and continued
shouting and cursing at the appellant.4 Dino, the appellant’s son,
who rode in another vehicle decided to go back when he did not
see his father’s car behind him. When Dino arrived at the scene
he confronted Andres and the two had an altercation. Both Dino
and the appellant stated that Andres remained outside his vehicle
during the altercation with Dino. When Andres suddenly reached
for something inside his vehicle, Dino froze on the spot where he
stood. This prompted the appellant to get his gun from the glove
compartment and feeling that his son was threatened he got out
of his car ready to shoot. When he saw that Andres did not have
a weapon he put down his hand holding the gun. This is when the
appellant’s daughter Trisha who was riding in Dino’s car arrived
at the scene, walked past Dino and Andres, and pushed the
appellant away. She hugged her father and in the process held
his hand holding the gun. The appellant tried to free his hand and
with Trisha’s substantial body weight pushing against him the
appellant lost his balance and the gun accidentally fired. The
accused stated that he did not know he shot somebody until the
private complainant’s sister-in-law, Francar Valdez, got out of the
vehicle carrying a bloodied small boy. The defense claims that
the appellant did not try to flee and even told the complainant’s
sister-in-law to take the wounded to the hospital.
On November 4, 1998 an Information for the complex crime of
Murder, Double Frustrated Murder and Attempted Murder was
filed against herein accused-appellant:
"That on or about the 31st day of October 1998, in the city
of Marikina, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, did then and
there willfully, unlawfully and feloniously with intent to kill,
attack, assault and employ personal violence by means of
treachery and abuse of superior strength upon the person
of Noel Andres y Tomas, by then and there shooting him
with a Glock cal. 9mm pistol but instead hitting one Feliber
Andres y Ordoño, on the left back portion of her head,
thereby inflicting upon her serious and mortal wound which
directly caused her death, as well as hitting John Kenneth
Andres y Ordoño and Kevin Valdez y Ordoño physical
injuries which ordinarily would have caused their death,
thus performing all the acts of execution which would have
produced the crime of murder as a consequence, but
 nevertheless did not produce it by reason of some cause
or causes, independent of their will, that is, the timely and
able medical assistance rendered to John Kenneth Andres
y Ordoño and Kevin Valdez y Ordoño to their damage and
prejudice as well as to the damage and prejudice of the
heirs of Feliber Andres y Ordoño."
On arraignment the accused-appellant pleaded "not guilty" to the
crimes charged.
The case records show that Feliber Andres, the wife of Noel
Andres did not die instantaneously. She lived to give birth to a
baby girl5 by caesarian section and died the following morning on
November 1, 1998. The Autopsy Report6 states:
"FINDINGS: Fairly nourished, fairly developed female
cadaver, with post mortem lividity. Conjunctivae are pale.
Lips and nail beds are cyanotic. Surgical incisions were
noted at left tempero-parietal region. Surgical incisions is
also noted at the abdominal region secondary to a
caesarian section.
HEAD: (1) gunshot wound, point of entry, left fronto-
temporal region, measuring 1 by 0.9 cm, 9 cm from the
anterior midline, with a uniform abraided collar measuring
0.2 cm., directed posteriorwards, slightly downwards, and
medialwards, fracturing the frontal, and left temporal
bones, lacerating the left cerebral hemisphere, with a
deformed slug fragment embedded and recovered at the
posterior lobe of the left cerebral hemisphere. (2)
hematoma, left orbital region, measuring 4.5 by 2 cm, 4
cm from the anterior midline. There are subdural and
subarachnoidal hemorrages. Stomach contains 1 ½
glassful of partially digested food particles mostly rice and
meaty material.
CONCLUSION: Cause of death is gunshot wound on the
head."
Kenneth and Kevin were treated for extraction of metallic
fragments on their faces. They were discharged from the hospital
six days later or on November 6, 1998.
On June 25, 1999 the trial court rendered judgement finding that
the shooting was attended by the qualifying circumstance of
treachery and held the appellant guilty of the complex crime of
murder for the death of Feliber Andres and for two counts of
frustrated murder for the injuries sustained by Kenneth Andres
and Kevin Valdez and sentenced the appellant to the maximum
of the imposable penalty which is death. The trial court held:
"Beforehand, the Court takes note of the judicial
admissions on the verbal declarations of the accused that
the court ‘a quo’ has jurisdiction over the case; that he
owns the black Gluck 9 mm. automatic pistol; that the said
gun will never fire even if he drops it; that only one bullet
was fired from his gun; and that the victim Feliber Andres
is already dead. With this exegesis and the declarations in
open court of the eyewitness of both the prosecution and
some of the defense, there is no real dispute on the
antecedent facts showing that the accused fired on Noel
Andres but instead hit and caused the fatal injuries to the
victims John Kenneth Andres, Kevin Valdez and Feliber
Andres resulting to the ultimate death of the latter. The
court takes further judicial admissions of the accused
made in their memorandum demonstrating the existence
of five (5) sequences of events leading to the death of
Feliber Andres and the wounding of John Kenneth Andres
and Kevin Valdez which are as follows: First is when Noel
Andres overtook the car driven of the accused and cut
cross his path; Second is when Noel Andres alighted from
his vehicle and confronted Inocencio; Third is when Noel
had an argument with Dino Gonzalez, the son of the
accused; Forth is when, Inocencio seeing his son having
confrontation with Noel, got his gun to protect Dino; and
Fifth is when Inocencio had a struggle with his daughter.
Trisha Gonzalez, who tried to reach for the gun and as a
result of which Inocencio lost his balance and as he was
falling backward to his side, his right arm holding the gun
hit the rear window of the Tamaraw FX van and the gun
accidentally went off hitting the victim, who were all then
inside the van.
The court likewise take judicial notice on the feature of the
automatic pistol used in this case which is capable of
unquestionable demonstration or ought to be known to
judges because of their judicial functions. Practically, the
stages before an automatic firearm would be capable of
firing are as follows: 1) the loading of a bullet into the
chamber of the gun; 2) the cocking of the hammer, if
uncocked; 3) the releasing of the safety pin; 4) the
pressing of the trigger to unleash the hammer so that the
firing pin will hit the cartridge to propel the bullet out to hit
the target. Realistically, it demonstrates that a gun will not
fire even if the bullet is loaded in its chamber if the
hammer is uncocked; or even if cocked if the safety pin is
engaged; or even if the safety pin is disengaged if the
trigger will not be pressed. However, even if the gun is
fired if it is not aimed and leveled to the target, the purpose
of firing it shall not be achieved. Contrarily, once a gun is
drawn against a person, the means methods and forms
employed for its execution is already conceived. And once
it is tended directly and specifically to insure its execution,
it consequently produces the conscious and deliberate
intention. Finally if all the acts of execution had been
effectively done without risk on the part of the offender
arising from any defense coming from the offended party,
treachery results. In brief, there is treachery when the
offender commits any crime against persons, employing
means, methods and forms in the execution thereof which
tend directly and specially to insure its execution, without
risk to himself arising from any defense which the offended
party might make (People vs. Mesa 276 SCRA 407;
People vs. Carlos Patrolla, Jr. G. R. No. 112445, March 7,
1996). To appreciate treachery two (2) conditions must be
present, to wit: 1) the employment of means of execution
that give the person attacked no opportunity to defend
himself or retaliate; and 2) the means of execution were
deliberately or consciously adopted. (People vs. Azugue,
268 SCRA 711; People vs. Peña, G. R. No. 116022, July
1, 1998, p. 1)
In the case at bar and guided with the above-quoted
doctrinal cases, logically, the accused is positive of the
crime charged against him. When he alighted with a drawn
gun to protect his son and released all the safety
measures of his gun as he fired and missed at Noel who
was then unarmed, but instead hit Kevin Valdez, John
Kenneth Andres and Feliber Andres which resulted to the
death of the latter, demonstrate that the accused has
executed the two (2) conditions to generate treachery
enough to qualify the crime committed to murder."
XXXX XXXXX XXXX
"WHEREFORE, foregoing premises considered, the
accused Inocencio Gonzalez, Jr., y Esquivel is hereby
found guilty beyond reasonable doubt of the complex
crime of Murder with Double Frustrated Murder and
Attempted Murder penalized under Art. 248, as amended
by Republic Act No. 7659 in relation to Article 48 of the
Revised Penal Code and is sentenced to suffer the
maximum penalty of Death by lethal injection.
The accused is further ordered to pay the following civil
liabilities:
1. To the private complainant Noel Andres:
a) the amount of P50,000.00 as indemnity for the
death of Feliber Andres;
b) the amount of P3,363,663.60 as indemnity for
the loss of earning capacity of the deceased Feliber
Andres;
c) the amount of P98,384.19 as funeral expenses;
d) the amount of P271,800.56 for the hospitalization
expenses incurred for the injuries sustained by the
deceased Feliber Andres and the amount of
P23,622.58 representing the expenses for the
untimely delivery of the child Ma. Clarisse Andres;
e) the amount of P51,566.00 representing the
hospitalization expenses for the injuries sustained
by the victim John Kenneth Andres;
f) the amount of P150,000.00 as moral damages
suffered for the untimely death of his wife Feliber
Andres and for the injuries caused to his son John
Kenneth Andres;
g) the amount of P50,000.00 as and by way of
attorney’s fees and a fee of P2,000.00 per
appearance; and
h) the costs of the suit.
2. To the private complainant Nicasio Valdez:
a) the amount of P73,824.75 as actual damages for
the injuries sustained by the victim Kevin Valdez;
and
b) the amount of P75,000.00 as and by way of
moral damages.
SO ORDERED."
In his appeal, Gonzalez submits the following assignments of
error:
"1. The trial court committed reversible error when it found
that treachery was present.
2. The trial court committed reversible error when it
presumed that there was treachery by taking judicial notice
of the feature of the automatic pistol involved in this case.
3. The trial court committed reversible error when it
violated the constitutional right of the accused-appellant to
 due process when it took judicial notice of the feature of
the automatic pistol involved in this case without notice.
4. The trial court committed reversible error when it found
Accused-Appellant guilty beyond reasonable doubt of the
complex crime of Murder with Double Frustrated Murder.
5. The trial court committed reversible error when it failed
to appreciate the mitigating circumstances of passion or
obfuscation, lack of intention to commit so grave a wrong,
provocation or threat on the part of the offended party
immediately preceded the act, incomplete defense of
relative, and voluntary surrender.
6. The trial court committed reversible error when it failed
to find that the shooting incident was accidental.
7. The trial court committed reversible error when it gave
credence to the testimonies of prosecution witnesses
Elmer Ramos and Moises Castro.
8. The trial court committed reversible error when it
disregarded the basic principle that the accused is
presumed innocent and his guilt must be proven beyond
reasonable doubt.
9. The trial court committed reversible error when it
ordered Accused-Appellant to pay for the civil liabilities."
The appellant seeks a reversal and prays that judgment be
rendered exempting him from criminal and civil liabilities.
Appellant declared that he had no intention to shoot Noel Andres
much less his wife nor the children. He lost his balance when his
daughter Trisha approached and pushed him backwards to stop
him from joining Dino and Noel Andres but the appellant tried to
free his right hand holding the gun and it accidentally fired. The
single bullet fired hit the last window on the left side of the
Tamaraw FX. The appellant claims that he did not see the
passengers inside the vehicle at the time of the shooting. This is
corroborated by the testimony of two witnesses for the
prosecution who testified that the windows of Andres’ vehicle are
heavily tinted so that a person outside the vehicle would not be
able to see if there are people inside. It is also argued that had
the appellant intended to shoot Noel Andres he could have
simply done so by shooting at him directly. The defense asserts
that the evidence for the prosecution failed to establish the
attendance of treachery and without the attendance of the said
qualifying circumstance the crime committed is homicide, not
murder.
The appellant also points out that the trial court made the factual
finding that the shooting happened in a matter of seconds and
that it was preceded by a heated argument between the parties.
Such being the case, it is argued that the shooting could not have
been attended by treachery. There was no time for the appellant
to consciously and deliberately employ the mode of attack
against Noel Andres, nor against any one of the actual victims, to
insure its execution and at the same time to eliminate any form of
retaliation from the alleged intended victim. And yet, the trial
court, contrary to the evidence on record, held that the loading of
the bullet into the chamber of the gun, the cocking of the
hammer, the release of the safety pin and the pulling of the
trigger by the appellant of his automatic pistol constitute
conscious and deliberate effort to employ the gun as a means of
committing the crime and resultantly, qualified its commission by
treachery. Such a finding presupposes that the appellant loaded
the gun to shoot Noel Andres only that very moment when his
son Dino and Noel Andres were arguing. This conclusion has no
basis on record. The appellant testified that his gun was loaded
before he left the house and two witnesses for prosecution stated
in court that a few seconds after Noel Andres and Dino started
shouting at each other, the appellant got out of his car and shot
at the last window on the left side of the complainant’s vehicle.
Further, the appellant assigns as error the procedure adopted by
the trial court in taking judicial notice that the gun used by the
appellant is an automatic pistol and as such, it will not fire unless
aimed at the intended target. The procedure taken by the trial
court is contrary to Section 3, Rule 129 of the Rules of
Court.7 The trial court should have given both parties the
opportunity to present evidence, expert evidence, if necessary, to
inform the court on the subject matter. The appellant argues that
the factual finding borne by such erroneous procedure is equally
erroneous. The gun used by the appellant is a semi-automatic
and not an automatic pistol which means that the pistol used has
no external safety pin to be released and that the hammer need
not be cocked. The pulling of the trigger, intentional or not, will
fire the gun. The use of a semi-automatic pistol does not
necessarily imply treachery.
Appellant also argues that the testimonies of prosecution
witnesses Castro and Ramos were improperly given credence by
the trial court. The appellant contends that a reading of their
testimonies would show that their narration of the incident is
rather absurd and would show that they did not witness the actual
shooting. Defense witnesses, Gonzalez and his daughter, Trisha,
on the other hand, testified that Castro and Ramos arrived at the
scene only after the shooting.
As regards the injuries sustained by Kevin and Kenneth, it is
argued that considering that there was no intent to kill and that
they stayed in the hospital only for six days, the crime committed
is physical injuries. It is argued that the trial court erred in
awarding damages. The bunch of receipts allegedly representing
the medical expenses incurred for the injuries sustained by the
victims was erroneously admitted in evidence, without first
requiring the prosecution to establish the authenticity of the
receipts. The appellant also points out that the award for loss of
earning capacity has no basis as the deceased was unemployed
at the time of the incident.
Finally, the appellant assigns as error the trial court’s rejection of
the mitigating circumstances pleaded by the defense which
allegedly attended the commission of the crime, i.e., lack of intent
to commit so grave a wrong, passion and obfuscation, incomplete
defense of a relative and voluntary surrender. The appellant
asserts that these mitigating circumstances were duly proven
during the trial and are supported by the evidence on record. The
private complainant Noel Andres testified that he saw the
appellant getting red in anger after they, Andres and the
appellant, had a heated argument immediately prior to the
shooting. These admitted circumstances show that the appellant
was not in his proper state of mind at the time of the shooting.
First, he was angered by Andres’ abusive language and later he
got out of his car with a loaded gun to protect his son from a
perceived danger. The appellant clams that his willingness to
help the injured and his voluntary surrender to the police should
likewise be considered as mitigating circumstances in the
imposition of penalties.
The Solicitor-General agrees with the appellant that the crime
was not attended by the qualifying circumstance of treachery and
hence the crime committed by the appellant for the death of
Feliber Andres is homicide, not murder. The appellee takes into
consideration that the shooting was preceded by a heated
argument and that the supposed victim was placed on guard that
attack was imminent. It also appears that the shooting was done
impulsively. There is no evidence that the appellant deliberately
employed the means of attack to insure execution of the crime
and at the same time eliminate the risk of retaliation from the
private complainant. The appellee also agrees with the appellant
that the trial court erred in equating the use of an automatic pistol
with treachery. The trial court made the factual finding that the
appellant’s automatic pistol would not fire unless aimed and the
trigger is deliberately pulled and hence treachery attended the
shooting. The appellee submits that if we follow the reasoning of
the trial court it would appear that the appellant intended to shoot
at the complainant’s vehicle only as the shot was fired at the last
window on the left side of the FX away from where Andres was
allegedly seated. The fact that the gun was drawn and fired does
not mean that the mode of attack was consciously and
deliberately employed.
However, with respect to the injuries sustained by Kevin and
Kenneth, the appellee disagrees with the contention that the
appellant is liable only for slight physical injuries. The injuries
sustained by both children are head injuries and could have
caused their death if not for the immediate medical attention
given them. The number of days spent in the hospital is not
determinative of the severity of the wounds. Their nature and
location should instead be considered. The appellant cannot
escape liability for frustrated homicide for the injuries of the two
children on the ground that he fired a single shot at the vehicle of
Noel Andres. He is liable for all the consequences of his unlawful
act even if the crime committed is different from that intended.
As regards the pleaded mitigating circumstances, appellee
asserts that none can be considered in favor of the appellant.
There is evidence on record that the appellant did not voluntarily
surrender to the police and it appears from the testimonies of
witnesses that he entertained the possibility of flight but his car
was stuck in traffic along the exit of the memorial park. His
pretense of incomplete defense of a relative is belied by his own
admission that when he saw that Noel Andres did not have a gun
he lowered his hand holding the gun. There was allegedly no
threat on the life of his son at the time of the shooting, no
uncontrollable fear nor irresistible force that would mitigate the
commission of the offense.
The Solicitor-General also seeks to uphold the pecuniary awards
granted by the trial court. The appellee alleges that it is not
denied by the appellant that Feliber Andres was a 38 year old
registered nurse at the time of the shooting. Although she was
then unemployed on account of her pregnancy, she still had
earning capacity and the trial court properly applied the salary of
a government nurse under the salary standardization scheme in
the computation of damages for the loss of earning capacity. The
receipts presented in evidence by the prosecution to establish
hospitalization and other medical expenses incurred by the
private complainants by reason of the injuries suffered by the
victims were duly authenticated by the prosecution witnesses and
there is no dispute that they are exact copies of the original
receipts presented in court. The objections raised by the
appellant in this regard were duly met by the evidence presented
by the private complainants.
In sum, the appellee asserts that considering that the appellant
fired a single shot and in the process committed four offenses the
appellant should be held liable for the complex crime of homicide
for the death of Feliber Andres, double frustrated homicide
against Kevin and Kenneth and attempted homicide against Noel
Andres. Under the rules on complex crimes the penalty for the
gravest offense, i.e., reclusion temporal for homicide, should be
imposed in its maximum period.
The appeal has merit.
Treachery under par.16 of Article 14 of the Revised Penal Code
is defined as the deliberate employment of means, methods or
forms in the execution of a crime against persons which tend
directly and specially to insure its execution, without risk to the
offender arising from the defense which the intended victim might
raise. For treachery to be appreciated two elements must concur:
1) the employment of means of execution that would insure the
safety of the accused from retaliatory acts of the intended victim
and leaving the latter without an opportunity to defend himself
and 2) the means employed were deliberately or consciously
adopted by the offender.8 The suddenness of the attack, the
infliction of the wound from behind the victim, the vulnerable
position of the victim at the time the attack was made or the fact
that the victim was unarmed do not by themselves render the
attack as treacherous.9 This is of particular significance in a case
of an instantaneous attack made by the accused whereby he
gained an advantageous position over the victim when the latter
accidentally fell and was rendered defenseless.10 The means
employed for the commission of the crime or the mode of attack
must be shown to have been consciously or deliberately adopted
by the accused to insure the consummation of the crime and at
the same time eliminate or reduce the risk of retaliation from the
intended victim.11 Accordingly, it has been consistently held by
this court that chance encounters, impulse killing or crimes
committed at the spur of the moment or that were preceded by
heated altercations are generally not attended by treachery for
lack of opportunity of the accused to deliberately employ a
treacherous mode of attack.12 Thus, the sudden attack made by
the accused due to his infuriation by reason of the victim’s
provocation was held to be without treachery. Sudden attacks
made by the accused preceded by curses and insults by the
victim or acts taunting the accused to retaliate or the rebellious or
aggressive behavior of the victim were held to be without
treachery as the victim was sufficiently forewarned of
reprisal.13 For the rules on treachery to apply the sudden attack
must have been preconceived by the accused, unexpected by
the victim and without provocation on the part of the latter.14
This Court has also had occasion to state that whether or not the
attack succeeds against its intended victim or injures another or
whether the crime committed is graver than that intended is
immaterial, as long as it is shown that the attack is attended by
treachery, the said qualifying circumstance may still be
considered by the court.15 Thus, the determining factor on
whether or not the commission of a crime is attended by
treachery is not the resulting crime committed but the mode of
attack employed in its execution.16
Treachery is never presumed. It is required that the manner of
attack must be shown to have been attended by treachery as
conclusively as the crime itself.17
We affirm the recommendation of the Solicitor-General that the
shooting was not attended by treachery and accordingly the
crime committed for the death of Feliber Andres is homicide and
not murder.
The encounter between Noel Andres and the appellant was a
chance encounter. They were total strangers before their vehicles
almost collided at an intersection inside the memorial park.
Unfortunately, heated exchange of remarks that followed the near
collision was fanned by a short temper, which in the case of the
appellant, was augmented by the improvident use of a firearm.
From a reading of the transcript of the testimonies of the
witnesses, it would appear that Noel Andres, who had his
pregnant wife and child with him, among others, on board the
Tamaraw FX provoked the altercation. After the near collision of
his vehicle with that of the appellant, he tailed behind the latter’s
car towards the exit until he had the chance to cut him off to scold
him for his failure to observe traffic rules.18 Andres stated in court
that he calmly told the appellant to be careful with his driving and
denied that he was angry when he alighted from his vehicle to
confront the appellant.19 His statement is belied by the witnesses,
two prosecution witnesses included, who uniformly testified that
Andres quarreled with or shouted and cursed at the appellant for
the latter’s recklessness at the intersection.20 The appellant
narrated in court that Andres repeatedly shouted at him, "Putang
ina mo, ang tanda-tanda mo na gago ka pa".21 Andres’ hostile
behavior towards the appellant is evident from his statement in
court that he noticed the appellant turning red in anger.22 It is
highly improbable for Gonzalez to have turned red in anger had
Andres been polite, as he claims he was, in scolding Gonzalez.
Andres could have simply communicated to the appellant his
disgust for the latter’s bad driving when he overtook the
appellant’s car near the scene of the shooting but instead he
chose to block the appellant’s path, insult and virtually provoke
the appellant to retaliate.
Andres stated in court that when he noticed Gonzalez’ infuriation
he immediately walked towards his vehicle, because according to
him the altercation was over. On his way to his FX he met
another man, whom he later found out to be the appellant’s son,
Dino. It appears that the altercation was far from over because
again Andres had a shouting match this time with Dino.23 In a
matter of seconds, the appellant alighted from his car and fired a
single shot at the last window on the left side of Andres’ vehicle
at an angle away from Noel Andres. The single bullet fired hit
Feliber Andres on the forehead near the temporal region above
the left eye and the two children with metallic fragments of the
bullet on their faces, one at the cheek and the other below his left
eye.
The prosecution did not present evidence as to the exact seating
arrangement of the victims inside the vehicle; suffice it to say,
that an examination of the pictures of the vehicle24 one of which
shows a mass of blood stains on the left side (towards the
driver’s seat) of the white seat cover below the head rest25, would
show that the deceased Feliber must have been seated at the
front passenger’s seat and the children at the middle row behind
the driver’s seat.26 Another picture shows a bullet hole on the last
window on the left side of the vehicle27 and another shows that
the front windshield appears undamaged.28 A ballistics expert
appeared in court for the prosecution and testified that the bullet
fired at the FX came from the appellant’s gun, which fact was
admitted by the defense. The prosecution did not inquire from the
ballistics expert regarding the trajectory of the bullet or the
approximate distance of the appellant from the FX when he fired
his gun to establish whether or not the appellant aimed for Noel
or Feliber or simply fired indiscriminately at the latter’s vehicle.29
At first blush it would seem that the shooting of Feliber Andres
was attended by treachery as she was inside the FX witnessing
her husband’s altercation, first, with the appellant then with the
appellant’s son, totally defenseless from the shot that came
suddenly from her left side. Public outrage over the death of
Feliber was heightened by the fact that she was then pregnant
with her second child and her death left a new born baby girl and
a two year old boy motherless.
However, a meticulous review of the evidence prevents a
conclusive finding of treachery and any doubt must be resolved,
like the fact of the commission of an offense, in favor of the
accused. The pictures indicate that Gonzalez fired at the FX at an
angle away from Noel Andres and that Gonzalez was not aiming
at anybody in particular. It is not disputed that the appellant’s car
was directly behind the complainant’s FX and that Gonzalez who
was then seated at the driver’s seat alighted from his car, took a
few steps then fired at the left side of the FX. Whether Noel
Andres was seated at the driver’s seat inside his vehicle when
Gonzalez fired at the FX, as the prosecution asserts, or was
standing by the door of the driver’s seat outside his vehicle, as
the defense submits, it is clear that the shot was fired away from
Noel Andres. The bullet hit Feliber near her temple above the left
eye indicating that she was facing left towards her husband when
the shot was fired.30 The direct hit on Feliber’s head shows that
the angle of the shot was indeed away from Noel Andres. Even
the eyewitness for the prosecution testified that had the appellant
intended to kill Noel Andres he could have shot directly at him,
considering that Noel Andres was just a few steps away from
him31 and that Noel Andres was visible from the outside because
his window was partially open.32 The pictures show that the bullet
hole was on the third window on the left side of the Tamaraw
FX33 belying any attempt to shoot Noel Andres. Two prosecution
witnesses Ramos and Castro unequivocally declared that
"nothing or no one" prevented Gonzalez from shooting directly at
Noel Andres and that Gonzalez could have simply done so if he
wanted to. But after alighting from his car, Gonzalez took a few
steps and shot at the left side window of the FX.34
The fact that the appellant fired his gun from behind the victim
does not by itself amount to treachery. There is no evidence on
record that the appellant deliberately positioned himself behind
the victim to gain advantage over him when he fired the shot. On
the contrary, the evidence before us reveals that the position of
the appellant’s car was not of his own doing but it became so
when Noel Andres overtook his car and cut off his path.
We note further, that the appellant did not act belligerently
towards Noel Andres even after the latter cut off the appellant’s
path. Andres stated in court that the appellant did not alight from
his car nor opened his window until he, Andres, tapped on
it.35 For his part Gonzalez categorically stated in court that he did
not point his gun nor threatened Andres during their short
spat.36 Gonzalez, although he had his gun in his car, did not react
to Andres’ cursing until the latter was having an altercation with
the appellant’s son, Dino. Gonzalez claimed that he perceived
that his son was in imminent danger.37 Whether he overreacted
or he shot at Andres’ vehicle out of rage over Andres’ aggressive
behavior, one thing appears clear to us, that the shooting was not
done in cold blood. It is undisputed that the windows of the FX
are heavily or darkly tinted so that a person outside would not
see if anybody was inside.38 The pictures of the FX39 on record
confirm the testimonies of both prosecution and defense
witnesses that the other passengers of the FX were not visible
from the outside. Gonzalez admitted in court that Noel Andres
mentioned that he has passengers with him while he was
shouting and cursing at Gonzalez but there is no indication that
Gonzalez had any opportunity to see the passengers when he
fired the shot. The totality of the evidence on record fails to
support a conclusion that Gonzalez deliberately employed the
mode of attack to gain undue advantage over the intended nor
the actual victim. Without any decisive evidence to the contrary,
treachery cannot be considered; thus the crime committed is
homicide.40
The trial court’s finding that the loading of the gun, the cocking of
the hammer and finally the pulling of the trigger constitute a
deliberate effort on the part of appellant to use the gun as a
means of a treacherous attack is patently erroneous. A single
and continuous attack cannot be divided into stages to make it
appear that treachery was involved.41 The entire incident
happened in a matter of minutes, as testified to by witnesses, and
as noted by the trial court.42 It was error to our mind for the trial
court to divide the assault in stages to arrive at the conclusion
that the mode of attack was consciously employed by the
appellant. Contrary to the finding of the trial court that the
appellant prepared the gun before getting out of his car, the
appellant testified that he loaded his gun before he left the house
and that it was ready to fire when he alighted his car. There was
no time for him to reflect on the mode of attack since he just
picked up his gun and alighted from his car and shot at the FX a
few seconds after Dino and Noel Andres started shouting at each
other.43 We note further that the trial court pointed out that from
the fact that the appellant prepared his gun to shoot, this was an
indication of the deliberate employment of the gun as a means to
kill; i.e. that the use of an automatic pistol shows that the
shooting was attended by treachery.
We do not agree that the weapon used, by itself, is determinative
of treachery, unless it is shown, and it is not herein shown, that
the appellant deliberately used the gun to insure the commission
of the crime and to render the unarmed victim defenseless. As
discussed above, the encounter between the appellant and the
Andresses was a chance encounter and the appellant’s gun was
in the glove compartment of his car even before he left his house.
The shooting was clearly a spur of the moment or impulsive
decision made by the appellant preceded by a heated altercation
at the instance of the private complainant. Jurisprudence teaches
us that under the circumstances, treachery is not obtaining. In the
case of People vs. Valles,44 the accused, a security guard, fired
his Armalite and mortally wounded the victim when the latter
approached the accused four times insisting on entering the
workplace wearing improper uniform, then cursed and insulted
and challenged the accused to a fight. We held that the shooting
was not attended by treachery as the shooting was preceded by
a heated altercation at the instance of the victim. It is to be noted
that the kind of weapon used against an unarmed victim was not
taken into consideration in determining the attendance of
treachery; it is the mode of attack employed by the accused
under the particular circumstances of a case that determines its
attendance in the commission of a crime. We find that the
prosecution has not discharged its burden to show that the
shooting was attended by treachery and we are convinced that
the crime committed for the death of Feliber Andres is homicide.
As regards the injuries sustained by the two children we find that
the crime committed are two counts of slight physical injuries.
The intent to kill determines whether the crime committed is
physical injuries or homicide and such intent is made manifest by
the acts of the accused which are undoubtedly intended to kill the
victim.45 In a case wherein the accused did not know that a
person was hiding behind a table who was hit by a stray bullet
causing superficial injuries requiring treatment for three days, the
crime committed is slight physical injuries.46 In case of doubt as
to the homicidal intent of the accused, he should be convicted of
the lesser offense of physical injuries.47 We have earlier pointed
out that the intent to kill is absent in this case. It was also found
that one small metallic fragment was extracted from Kenneth
below his left eye while another fragment was extracted from
Kevin "immediately below the level of his skin before the cheek
bone".48 An examination of the testimonies of the attending
physicians, showed that the wounds sustained by the two
children from the metallic fragments are not in themselves fatal
but may cause death if left untreated. One of the attending
physician testified in court that the fragments themselves "will not
cause complication, it is the entry of the fragment" or the open
wound that is susceptible to infection.49 Two small fragments
were no longer extracted from the face of Kevin Valdez, as the
doctor deemed it to be without danger of complication.50 We note
that the various sizes of the metallic fragments were not
established, at least to give an indication of the severity of the
wounds sustained. Both children were discharged after six days
of treatment and there is no showing that they required
subsequent treatment or that they were immobilized for a greater
number of days by reason of the injuries sustained. Considering
the nature and location of their injuries and the number of days
required for their treatment, we find that the crime committed for
the injuries sustained by the children are two counts of slight
physical injuries under Art. 266 of the Revised Penal Code which
imposes a penalty of arresto menor or imprisonment for 1 to 30
days for injuries sustained that has incapacitated the victim for
one to nine days or required medical attendance for the same
period. For evident lack of criminal intent to kill the complainant,
Noel Andres, as above stated, the information for attempted
homicide must fail.
The mitigating circumstances of voluntary surrender, passion and
obfuscation, incomplete defense of a relative and lack of intent to
commit so grave a wrong, pleaded by the defense, were not
convincingly proved and none can be considered in the
imposition of penalties. The testimony of prosecution witness
contradicts the appellant’s pretense of voluntary surrender.
Witness Ramos testified that the appellant drove away towards
the gate of the memorial park while he was questioning him after
the shooting and had not Noel Andres and onlookers blocked his
path the appellant could have fled the scene of the crime.51
The mitigating circumstance of passion and obfuscation is also
not obtaining. For this mitigating circumstance to be considered,
it must be shown that (1) an unlawful act sufficient to produce
passion and obfuscation was committed by the intended victim;
(2) that the crime was committed within a reasonable length of
time from the commission of the unlawful act that produced the
obfuscation in the accused’s mind; and that (3) "the passion and
obfuscation arose from lawful sentiments and not from a spirit of
lawlessness or revenge".52 Noel Andres’ act of shouting at the
appellant’s son, who was then a nurse and of legal age, is not
sufficient to produce passion and obfuscation as it is claimed by
the accused. Besides, the appellant’s son, Dino was shouting
back at Noel Andres. It was not a case wherein the appellant’s
son appeared helpless and oppressed that the appellant lost his
reason and shot at the FX of Noel Andres. The same holds true
for the appellant’s claim of provocation on the part of Noel
Andres. Provocation must be sufficient to excite a person to
commit the wrong committed and that the provocation must be
commensurate to the crime committed. The sufficiency of
provocation varies according to the circumstances of the
case.53 The aggressive behavior of Noel Andres towards the
appellant and his son may be demeaning or humiliating but it is
not sufficient provocation to shoot at the complainant’s vehicle.
The plea for the appreciation of the mitigating circumstance of
incomplete defense of a relative is also unmeritorious since the
act of Andres in cursing and shouting at the appellant and his son
do not amount to an unlawful aggression against them, Dino
Gonzalez. Finally, the plea for the appreciation of the mitigating
circumstance of lack of intent to commit so grave a wrong is
likewise devoid of merit. This mitigating circumstance is obtaining
when there is a notable disparity between the means employed
by the accused to commit a wrong and the resulting crime
committed. The intention of the accused at the time of the
commission of the crime is manifested from the weapon used,
the mode of attack employed and the injury sustained by the
victim.54 The appellant’s use of a gun, although not deliberately
sought nor employed in the shooting, should have reasonably
placed the appellant on guard of the possible consequences of
his act. The use of a gun is sufficient to produce the resulting
crimes committed.
For the death of Feliber Andres, and in the absence of any
mitigating circumstance, the appellant is hereby sentenced to an
indeterminate sentence of 8 years and 1 day of prision mayor, in
its medium period, as minimum to 14 years 8 months and 1 day
of reclusion temporal in its medium period, as maximum. For
each count of the slight physical injuries committed against
Kenneth Andres and Kevin Valdez, the appellant is hereby
sentenced to 20 days of arresto menor in its medium period.
The rules on the imposition of penalties for complex crimes under
Art. 48 of the Revised Penal Code are not applicable in this case.
Art. 48 applies if a single act constitutes two or more grave and
less grave felonies or when an offense is a necessary means of
committing another; in such a case, the penalty for the most
serious offense shall be imposed in its maximum period. Art. 9 of
the Revised Penal Code in relation to Art. 25 defines grave
felonies as those to which the law attaches the capital
punishment or afflictive penalties from reclusion perpetua to
prision mayor; less grave felonies are those to which the law
attaches a penalty which in its maximum period falls under
correctional penalties; and light felonies are those punishable by
arresto menor or fine not exceeding two hundred pesos.
Considering that the offenses committed by the act of the
appellant of firing a single shot are one count of homicide, a
grave felony, and two counts of slight physical injuries, a light
felony, the rules on the imposition of penalties for complex
crimes, which requires two or more grave and/or less grave
felonies, will not apply.
The pecuniary award granted by the trial court for actual
damages was duly established by the testimonies of the
prosecution witnesses as supported by the original receipts for
hospitalization and other medical expenses presented in
evidence by the prosecution. The award for loss of earning
capacity is likewise sustained for the reason that while Feliber
Andres was pregnant and was unemployed at the time of death,
it is not disputed that she was a registered nurse and had earning
capacity. Noel Andres also testified that he and his wife had
plans to go back to Saudi Arabia to work after Feliber had given
birth to their second baby. While there is no evidence as to
Feliber’s actual income at the time of her death, in view of her
temporary separation from work because of her pregnancy, we
do not consider it reversible error for the trial court to peg her
earning capacity to that of the salary of a government nurse
under the salary standardization law, as a fair estimate or
reasonable assessment of her earning capacity at the time of her
death. It would be grossly inequitous to deny her spouse and her
minor children damages for the support that they would have
received, considering clear evidence on record that she did have
earning capacity at the time of her death.
The awards for moral damages for the death of Feliber Andres
and for the injuries sustained by the two children, which under the
circumstances are reasonable, are likewise sustained.
WHEREFORE, the decision of the trial court is hereby
MODIFIED. The appellant is hereby found guilty of homicide for
the death of Feliber Andres and is sentenced to an indeterminate
sentence of 8 years and 1 day of prision mayor in its medium
period, as minimum, to 14 years 8 months and 1 day of reclusion
temporal in its medium period, as maximum. For each count of
the slight physical injuries committed against Kenneth Andres
and Kevin Valdez, the appellant is hereby sentenced to 20 days
of arresto menor.
The pecuniary awards granted by the trial court are hereby
sustained.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Vitug, Mendoza, Quisumbing,

Buena, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez,
JJ., concur.

Pardo, J., dissenting opinion.

Puno, Kapunan, Panganiban, JJ., joins the dissenting opinion of

J. Pardo.
People vs. Lab-eo G.R. No. 133438; 373 SCRA 461 Before this Court is an appeal from the Decision1 of the Regional
January 16, 2002 Trial Court, First Judicial Region, Branch 35, Bontoc, Mountain
Province, convicting the appellant Wilson Lab-eo of the crime of
murder. The appellant postulates that he should only be
convicted of the lesser crime of homicide.

The Charge

The appellant was indicted for murder under Article 248 of the
Revised Penal Code, as amended by RA No. 7659, under the
following Information2 :
THIRD DIVISION
"That on or about October 21, 1996, at the Barangay Hall,
G.R. No. 133438 January 16, 2002 Poblacion, Tadian, Mountain Province, and within the
jurisdiction of this Honorable Court, the above-named
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, accused with intent to kill and with the use of a sharp knife,
vs. did then and there willfully, unlawfully and feloniously
WILSON LAB-EO, accused-appellant. attack, assault, strike and stab Segundina Cay-no with a
well-honed and pointed knife and thereby inflicting a
CARPIO, J.: mortal stab wound upon the victim as reflected in that
medico-legal certificate, to wit:
An Information to be sufficient must contain all the elements
required by the Rules on Criminal Procedure. In the crime of Stab wound infrascapular area left, penetrating with
murder, the qualifying circumstance raising the killing to the massive hemathorax, which caused the death of the victim
category of murder must be specifically alleged in the thereafter.
Information. The Information is sufficient as long as the qualifying
circumstance is recited in the Information, regardless of whether That the aggravating circumstances of evident
designated as aggravating or qualifying, or whether written premeditation, treachery, abuse of superior strength and
separately in another paragraph or lumped together with the craft attended the commission of the offense.
general averments in a single paragraph.
Contrary to law."
The Case
Arraignment and Plea
When arraigned on June 19, 1997, the appellant, duly assisted
by his counsel, entered a plea of not guilty. Thereafter, trial on
the merits ensued.
The Trial
The prosecution presented the oral testimonies of the following:
(1) Nancy Gaoan, Julie Dang-la and Nelson Apyoten,
eyewitnesses to the actual stabbing of Segundina Cay-no; (2)
Jerry Cay-no, son of the deceased; (3) Police Officers Leonardo
Cea and Angelito Beddy who were in-charge of the investigation
of the stabbing incident; and (4) Drs. Elizabeth Tican and
Milagros Inhumang, the attending physicians at the Luis Hora
Memorial Hospital where the deceased was brought. For its part,
the defense presented the appellant himself as well as Inspector
Eleuterio Camtugan and Mrs. Gantula Latap, as witnesses.
Version of the Prosecution
The Office of the Solicitor General summarized the facts of the
prosecution as follows:
"Segundina Cayno was engaged in the business of selling
rummage goods. Early in the morning of October 21,
1996, her son, Jerry Cayno, went to the "dap-ayan" or
barangay hall, in front of the Tadian Public Market at
Tadian, Mountain Province, to display the goods for sale
while his mother was still at their boarding house. After
displaying the goods, Segundina arrived and took over
while he proceeded to their new boarding house to do
some cleaning (TSN, July 16, 1997, pp. 3-15, 28).
At about 9 o'clock that morning, Nancy Gaoan and Julie
Dangla went to see Segundina to be massaged by the
latter ("hilot") (TSN, July 16, 1997, p. 3; TSN, July 29,
1997, p. 68).
At about 11:20 a.m., Nelson Apyoten arrived in order to
wait for a ride going to Masla. He saw Nancy and
Segundina and sat with them while waiting for his ride
(TSN, July 30, 1997, pp. 2-4).
Before noontime, while Nancy and Julie were plucking the
white hair strands of Segundina, appellant Wilson Lab-eo
arrived and approached his aunt, Segundina. Upon seeing
him, Nancy went to a distance of about 2 meters while
Julie was still near Segundina. Appellant sat down in front
of his aunt and uttered something to her in a very soft
voice. Nancy did not hear what he said because of her
distance from them while Julie could not make out the
conversation because of the sound coming from a running
motor engine. What they only heard was Segundina's
answer which was uttered in a loud angry voice "koma-an
ka tay baka mahigh bloodac" ("you get out because I might
suffer high blood). They saw appellant leave (TSN, July
16, 1997, pp. 8-9, 16, 19; TSN, July 29, 1997, pp. 72, 78-
79).
When appellant left, Nancy and Julie were looking at some
of the clothes being sold by Segundina (TSN, July 29,
1997, p. 72).1âwphi1.nêt
In the meantime, appellant proceeded to the market place,
which was just about 5 meters away. Thereat, he saw at
the butcher's shop of a certain Gaskiw, a 15-inch knife with
a 9-inch blade with a width of 1 inch at its widest and 1 cm.
at its point. He took it and right away returned to the "dap-
ayan" (TSN, September 11, 1997, p. 4).
When appellant returned about 3-5 minutes after,
Segundina was sitting on a low rattan stool. In front of her
were Nancy and Julie, as she was showing to them how to
repair and put garter on the pants Nancy had bought for
her child. Engrossed, they did not notice appellant's return,
especially Segundina who had her back to appellant.
When Julie saw appellant approach Segundina from the
back, Julie thought that he would just box his aunt
because she did not see the knife, which was wrapped in
his blue jacket. Then appellant suddenly made a thrusting
motion and he stabbed Segundina on the left portion of
her back. He then ran away leaving the knife at the victim's
back with the jacket he had covered it with, hanging by the
knife's handle. The entire length of the knife's 9-inch blade
had penetrated the victim's body. Upon seeing that
Segundina was stabbed, Julie removed the knife with the
jacket from the victim's back and placed them down on the
pavement while Nancy, Nelson and the other people who
saw the incident shouted for help (TSN, July 16, 1997, pp.
4, 6-8, 11, 20, 24-26; TSN, July 29, 1997, pp. 72, 76, 80-
81, 83-84; TSN, July 30, 1997, pp. 5-6, 21).
Seeing that appellant had ran in the direction of the
Municipal Hall, Nelson, together with one Mario Talicwad,
and some other people, went after him to find out if he was
going to the police station. They saw him enter the office
of Inspector Leonardo Cea, the then Chief of Police of
Tadian Police Station. Upon his surrender, the police
authorities took custody of him. The fact of his surrender
was entered in the police blotter as Entry # 21, page 86.
Because of the report of the stabbing incident, Police
Officer Angelito Beddy proceeded to the crime scene.
Thereat, he recovered the knife wrapped with the jacket,
which bore a hole as the knife pierced it (TSN, July 30,
1997, p. 6; TSN, July 29, 1997, p. 58, 60-64; TSN,
September 9, 1997, pp. 1-2; TSN, July 17, 1997, pp. 42-
44).
In the meantime, Julie had ran towards the boarding
house where Segundina was staying and she informed the
latter's son, Jerry, of what happened to his mother. When
they returned to the "dap-ayan", they saw Segundina
aboard the Dolidoan Trans enroute to the Luis Hora
Memorial Hospital in Abatan, Bauko, Mountain Province.
Hence, Jerry, along with Nelson and some other people,
packed the dry goods Segundina was selling and
thereafter followed his mother to the hospital (TSN, July
16, 1997, p. 29-30; TSN, July 29, 1997, p. 73; TSN, July
30, 1997, pp. 6-7; TSN, August 26, 1997, p. 99).
Upon her admission at the Luis Hora Hospital, she was
attended by Dr. Milagros B. Inhumang. The latter found
that the victim had a 2.5 cm stab wound at her back, left
scapula, which penetrated the left lung. X-ray revealed
that she had suffered massive bleeding in the thorax
cavity. Before she could be transferred to the Baguio
General Hospital for more specialized treatment,
Segundina died in the morning of the following day
(October 22, 1996). The cause of death was determined to
be "hypovolomic shock secondary to massive
hemorrhage" (TSN, July 31, 1997, pp. 92-93; TSN, August
26, 1997, pp. 100-106)."3
Version of the Accused
The appellant does not deny stabbing Segundina Cay-no.
However, he maintains that neither treachery nor evident
premeditation attended the commission of the crime. The
appellant contends that the crime committed should only be
homicide and not murder.
Stripped of the details that led to the actual stabbing of the
deceased, the appellant's version of the incident is similar to that
of the prosecution. The appellant recounted the incident in this
wise:
"Appellant Wilson Lab-eo testified that on October 21,
1996, at Dap-ayan, Tadian, Mountain Province, he was
teasing Segundina Cayno that he be her baggage boy of
the clothes that she was vending. Segundina got mad and
berated herein accused in front of many people. She told
accused to go away because she does not want to see his
face there. The accused felt so bad and left the place.
Humiliated, he returned to where Segundina was selling
clothes and then and there stabbed her at the back with a
knife. Thereafter, he surrendered to the Chief of Police
(TSN, Decision, pp. 5-6)."4
The Trial Court's Ruling
After evaluating the testimonies of the witnesses, together with
the object evidence presented, the trial court found the appellant
guilty of the crime of murder in its Decision5 dated January 16,
1998. The dispositive portion of the Decision reads:
"WHEREFORE, the accused Wilson Lab-eo having been
found guilty of the crime of Murder as charged and defined
and penalized under Article 248 of the Revised Penal
Code beyond reasonable doubt, he is hereby sentenced to
suffer the penalty of reclusion perpetua and to indemnify
the heirs of the victim Segundina Cay-no in the amount of
P50,000 in consonance with the current case law and
policy in death indemnity; to pay the victim the actual
expenses that the said heirs incurred relative to the death
of the same victim in the total sum of ONE HUNDRED
TWENTY FIVE THOUSAND FIVE HUNDRED
(P125,500.00) PESOS, Philippine currency; and to pay the
cost of this suit.
SO ORDERED."
The Issues
In this appeal, appellant Wilson Lab-eo asks this Court to declare
him guilty of the crime of homicide instead of murder as found by
the lower court. The appellant assigns as errors the following:
I.
THE LOWER COURT GRAVELY ERRED IN
CONVICTING THE ACCUSED-APPELLANT OF
MURDER.
II.
THE LOWER COURT GRAVELY ERRED IN FINDING
THAT THE QUALIFYING CIRCUMSTANCE OF
TREACHERY IS ATTENDANT IN THE CASE AT BAR.
III.
THE LOWER COURT GRAVELY ERRED IN NOT
FINDING THAT THE MITIGATING CIRCUMSTANCE OF
PASSION AND OBFUSCATION AND SUFFICIENT
PROVOCATION ATTENDED THE COMMISSION OF
THE CRIME CHARGED.
 IV.
GRANTING THAT THE ACCUSED-APPELLANT IS
GUILTY OF THE CRIME CHARGED, THE LOWER
COURT FAILED TO APPLY THE INDETERMINATE
SENTENCE LAW.6
The Court's Ruling
We affirm the conviction of appellant Wilson Lab-eo for the crime
of murder.
In the first assigned error, the appellant faults the lower court for
finding him guilty of murder even when the Information, as
written, could only have charged him with the crime of homicide.
The appellant points out that although the Information 7 is
captioned as murder, the allegations in the body of the
Information are constitutive only of the elements of the crime of
homicide.
The Information, as written, consists of two paragraphs. The first
paragraph contains the allegations of the date, time, place, the
acts constituting the offense, and the name of the victim. Written
in a separate paragraph are the "aggravating circumstances" of
evident premeditation, treachery, abuse of superior strength and
craft, alleged as attending the commission of the crime. The
appellant insists that the circumstances enumerated in the
second paragraph should be considered merely as generic
aggravating circumstances, not qualifying circumstances, for two
reasons. First, the circumstances are not part of the recital of
facts constituting the offense as charged in the first paragraph.
Second, the circumstances are designated merely as generic
aggravating circumstances.
The arguments of the appellant find no basis in law.
The Information was correctly captioned as one for murder since
the Information actually recited the qualifying circumstances that
attended the commission of the crime. Article 248 of the Revised
Penal Code, as amended by RA No. 7659, provides:
"Article 248. Murder. - Any person who, not falling within
the provision 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 the aid of armed men, or employing means to weaken
the defense, or of means or persons to insure or afford
impunity;
xxx
5. With evident premeditation;
xxx." (Emphasis supplied)
The fact that the qualifying circumstances were recited in the
second paragraph and not in the first paragraph of the
Information, as commonly done, is a matter of form or style for
which the prosecution should not be faulted. That the Provincial
Prosecutor decided to write the Information differently did not
impair its sufficiency. Nothing in the law prohibits the prosecutor
from adopting such a form or style. As long as the requirements
of the law are observed, the Information will pass judicial scrutiny.
The prosecution is correct in its argument that although the recital
of facts constituting the crime charged was contained in two
separate paragraphs, the two must be "read in (their) entirety and
not just truncated portions thereof."8 The Information is not just
the first, second or third paragraph of the prosecutor's sworn
accusation taken individually or separately, but all the allegations
made therein taken together in their entirety.
The fact that the circumstances were described as "aggravating"
instead of "qualifying" does not take the Information out of the
purview of Article 248 of the Revised Penal Code. Article 248
does not use the word "qualifying" or "aggravating" in
enumerating the circumstances that raise a killing to the category
of murder. Article 248 merely refers to the enumerated
circumstances as the "attendant circumstances." In the instant
case, the Information specifically alleges that evident
premeditation, treachery, and abuse of superior
strength "attended the commission of the offense." This is
more than sufficient to comply with the requirements of Article
248. Well-settled is the rule that when evident premeditation,
treachery, or abuse of superior strength is present and alleged in
the Information, it qualifies the killing and raises it to the category
of murder.9
Moreover, there are four kinds of aggravating circumstances,
namely: (1) generic or those that can generally apply to all
crimes; (2) specific or those that apply only to particular crimes;
(3) qualifying or those that change the nature of the crime; and
(4) inherent or those that must of necessity accompany the
commission of the crime.10 Thus, except for scoffing at the
victim's corpse, all the qualifying circumstances enumerated in
Article 248 of the Revised Penal Code are also aggravating
circumstances because they are likewise found in Article 14 of
the same Code enumerating the aggravating circumstances.11
The rule on sufficiency of information is found in Section 6, Rule
110 of the 1985 Rules on Criminal Procedure.12 This was the
applicable rule at the time of the commission of the crime.
Section 6 of Rule 110 states:
SEC. 6. Sufficiency of Information - A complaint or
information is sufficient if it states the name of the
accused; the designation of the offense given by the
statute; the acts or omissions complained of as
constituting the offense; the name of the offended party;
the approximate date of the commission of the offense;
and the place where the offense was committed.
When an offense is committed by more than one person,
all of them shall be included in the complaint or
information. (6a)
Under Section 6, the Information is sufficient if it contains the full
name of the accused, the designation of the offense given by the
statute, the acts or omissions constituting the offense, the name
of the offended party, the approximate date, and the place of the
offense. The Information in this case complied with these
conditions.13 The Information included the specific allegation that
the "aggravating circumstances of evident premeditation,
treachery, abuse of superior strength and craft attended the
commission of the offense."14 With the allegation of these
aggravating circumstances, the first three of which qualify the
killing to murder, the Information correctly used murder as the
proper designation given by law pursuant to Article 248 of the
Revised Penal Code.
The test of sufficiency of Information is whether it enables a
person of common understanding to know the charge against
him, and the court to render judgment properly.15 The rule is that
qualifying circumstances must be properly pleaded in the
Information in order not to violate the accused's constitutional
right to be properly informed of the nature and cause of the
accusation against him.16 The purpose is to allow the accused to
fully prepare for his defense, precluding surprises during the trial.
Significantly, the appellant never claimed that he was deprived of
his right to be fully apprised of the nature of the charges against
him because of the style or form adopted in the Information.
The New Rules on Criminal Procedure, which took effect on
December 1, 2000, re-enacted verbatim Section 6, Rule 110 of
the old Rules on sufficiency of the Information. Sections 8 and 9,
Rule 11017 of the new Rules, moreover, now require that both the
qualifying and aggravating circumstances must be specifically
alleged in the Information to be appreciated as such. Under the
old Rules, only the qualifying circumstances were required to be
alleged in the Information, and aggravating circumstances, even
if not alleged, could still be appreciated, except in cases where
an aggravating circumstance would result in the imposition of the
death penalty.18 In any event, even if Sections 8 and 9, Rule 110
of the new Rules, which are more favorable to the accused, are
applied to this case, the Information for murder against the
appellant would still remain sufficient and valid. Three of the
circumstances enumerated in Article 248 of the Revised Penal
Code raising a killing to murder are specifically alleged in the
Information in this case, satisfying Sections 8 and 9 of Rule 110
of the new Rules.
On the second assigned error, the appellant argues that
treachery was not employed in the stabbing of the victim.
However, the prosecution counters that treachery attended the
commission of the crime because the appellant stabbed the
victim from behind, without warning and without an opportunity to
defend herself.
We hold that treachery19 attended the stabbing of the victim
Segundina Cay-no.
As a rule, a sudden attack by the assailant, whether frontally or
from behind, is treachery if he deliberately adopted such mode of
attack with the purpose of depriving the victim of a chance to
either fight or retreat.20
To constitute treachery, two conditions must concur: (1) the
employment of means of execution which tend directly and
specially to insure the accomplishment of the crime without risk to
the assailant arising from the defense the victim might make; and
(2) a deliberate or conscious adoption of the means of
execution.21 When a victim is unexpectedly attacked from behind,
depriving him of any opportunity to defend himself, undeniably
there is alevosia.22 The essence of treachery is that the attack is
deliberate and without warning, done in a swift and unexpected
manner, affording the hapless, unarmed and unsuspecting victim
no chance to resist or escape.23
In this case, the victim was stabbed, undoubtedly from behind.
Dr. Milagros Inhumang, the physician who attended to the victim
at the time of the incident, testified that the wound inflicted on the
victim was found at the back, left side portion.24 The testimonies
of the prosecution witnesses substantiate this medical finding.
The appellant was behind the victim when he stabbed her. Nancy
Gaoan, a 26-year old farmer, resident of Kayan, Tadian,
Mountain Province, and an eyewitness to the stabbing of the
victim, testified:
"Q. While you were at the market on that day having
hilot do you remember of any unusual incident that
happened?
A. There is sir. A. Knife, sir."25

Q. And what is that incident, madam witness? Based on the foregoing, it was established that the appellant
emerged from behind the victim when he stabbed her.
A. They stabbed Mrs. Segundina Cayno. Furthermore, not only did the appellant deliberately attack from
behind, he did it without any warning to the victim. The appellant
Q. Who stabbed Mrs. Segundina Cayno? executed the assault in a manner that left the victim defenseless
and without any opportunity to even escape or flee, at the same
A. Wilson Labeo sir. time avoiding risk to himself from any defense the victim might
make.
Q. When Wilson Labeo stabbed Segundina Cayno,
where were you? The fact that the appellant used a very sharp butcher's knife, 15
inches long with a 9-inch blade,26 shows that the appellant had
A. I was facing both of them. chosen well his weapon of attack. The deadly nature of the
weapon used, the traitorous manner of the assault, and the
Q. And about how far were you from them? location of the wound inflicted upon the victim, conjointly
demonstrate a deliberate and determined assault with intent to
A. About one meter away. kill.27

Q. And what part of the body of Segundina Cayno was We also affirm the lower court's finding that abuse of superior
stabbed? strength was absorbed in treachery.28

A. At her back sir. Likewise, the lower court correctly held that craft was absorbed in
treachery as shown by the fact that the appellant hid the knife
Q. You said that you were in front of Segundina Cayno under his jacket to prevent the victim from seeing it and from
when she was stabbed, where did this Wilson Labeo come being alerted of an impending assault. Craft may be absorbed in
from? treachery if it is deliberately adopted as the means, method or
form for the treacherous strategy.29 It may co-exist independently
A. From the back of Mrs. Segundina Cayno. from treachery only when both circumstances are adopted for
different purposes in the commission of the crime.30 In this case,
Q. And you said Madam Witness, that the accused craft could not be appreciated independently from treachery
Wilson Labeo stabbed Segundina Cayno at her back, did because the appellant deliberately utilized it as a means of
you see with what weapon he stabbed Segundina Cayno? accomplishing his treacherous plan. The appellant made sure
that the knife he was carrying was totally unseen by the victim
and the people around her, thereby giving the victim no
forewarning and leaving her utterly defenseless.
In his third assigned error, the appellant argues for the
appreciation of the mitigating circumstances of passion and
obfuscation, as well as of sufficient provocation, in his favor.
There is no justification for this.
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.31
For a person to be motivated by passion and obfuscation, there
must first exist an unlawful act that would naturally produce an
impulse sufficient to overcome reason and self-control.32 There is
passional obfuscation when the crime is committed due to an
uncontrollable burst of passion provoked by prior unjust or
improper acts, or due to a legitimate stimulus so powerful as to
overcome reason.33 In asking the appellant to leave, the victim
did not do anything unlawful. There is an absolute lack of proof
that the appellant was utterly humiliated by the victim's utterance.
Nor was it shown that the victim made that remark in an insulting
and repugnant manner. The victim's utterance was not the
stimulus required by jurisprudence to be so overwhelming as to
overcome reason and self-restraint.
Neither was the mitigating circumstance of sufficient provocation
by the victim proven. From the testimonies of witnesses, it was
shown that it was in fact the appellant who provoked the victim.
All the witnesses testified that when the appellant initially
approached the victim, he said something to her that prompted
the latter to raise her voice at him.
Moreover, this Court has held that the provocation sufficient to
mitigate an offense must be proportionate to the gravity of the
retaliatory act.34 In People vs. Leonor35 , this Court rejected the
plea of the accused that a push and "bad words" justified
retaliation with a knife, the provocation being insufficient to
deserve the benefit of the mitigating circumstance of prior
provocation by the offended party.36 In this case, the victim
merely shouted at the appellant and asked him to leave. Stabbing
her to death could hardly be proportionate in gravity to her act of
shouting, no matter how loud.
There is, however, the mitigating circumstance of voluntary
surrender duly proven during the trial which must be considered
in favor of the accused. It was established that shortly after the
incident, the appellant went to the municipal hall and surrendered
to the authorities. This fact was admitted by Inspector Cea, Chief
of Police of the Tadian Police Station, to whom the appellant
voluntarily surrendered on the day of the incident.37
Treachery attended the stabbing of Segundina Cay-no, thereby
qualifying the killing to murder which is punishable by reclusion
perpetua to death38 . However, with the mitigating circumstance
of voluntary surrender, the lower of the two indivisible penalties
of reclusion perpetua and death shall be meted out in accordance
with Article 6339 of the Revised Penal Code. Consequently, for
the murder of Segundina Cay-no, the appellant shall suffer the
penalty of reclusion perpetua.
As his final assigned error, the appellant would also fault the
lower court for its failure to apply to him the Indeterminate
Sentence Law.1âwphi1.nêt
The Indeterminate Sentence Law40 is not applicable in this case. Segundina Cay-no ₱50,000.00 as civil indemnity, ₱82,500.00 as
Section 2 of the Indeterminate Sentence Law states that it shall actual damages, and ₱50,000.00 as moral damages.
not apply to persons convicted of offenses punishable by death
or life imprisonment. In the case of People vs. Aquino41 , this SO ORDERED.
Court held that the appellant could not avail of the benefits of the
Indeterminate Sentence Law because this law does not apply to Melo, Vitug, Panganiban, and Sandoval-Gutierrez, JJ., concur.
persons convicted of offenses punishable with reclusion
perpetua.

As civil indemnity for the death of Segundina Cay-no, the

accused shall pay the amount of ₱50,000 to the victim's heirs.
Consistent with settled rule, the amount is awarded without need
of proof other than the commission of the crime42 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.43 Therefore, we modify the award
of ₱125,500.00 as actual damages made by the lower court and
instead reduce it to ₱82,500.00. 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.44 Since all the receipts
presented in evidence add up to only ₱82,500.00, then only this
reduced amount shall be awarded. We also award ₱50,000.00 as
moral damages for the wounded feelings and moral shock45 of
the heirs, as testified to by Jerry Cay-no, son of the
deceased.1âwphi1.nêt

WHEREFORE, the appealed decision convicting WILSON LAB-

EO of the crime of murder and sentencing him to suffer the
penalty of RECLUSION PERPETUA is hereby AFFIRMED, with
the MODIFICATION that appellant is ordered to pay the heirs of
People vs. Bates G.R. No. 139907; 400 SCRA 95 MARCELO BATES, JR., conspiring together and
March 28, 2003 confederating with and mutually helping and aiding one
another, with treachery, evident premeditation and intent
to kill, being then armed with long bolos, did then and
there willfully, unlawfully and feloniously stab and hack to
death the person of the victim herein, JOSE BOHOLST
without giving the latter sufficient time to defend himself,
thereby inflicting upon him multiple wounds which caused
his instantaneous death. Death Certificate and Autopsy
Report are hereto attached. In violation of Article 248,
Revised Penal Code.1
SECOND DIVISION
Upon arraignment, Marcelo Bates entered a plea of not guilty.
G.R. No. 139907 March 28, 2003
The version of the prosecution:
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. Around 2:00 in the afternoon of November 28, 1995, Edgar
MARCELO BATES, accused-appellant. Fuentes, Simon Fuentes and Jose Boholst left Barangay
MARCELO BATES, JR. (At-Large), accused. Esperanza, Ormoc City to deliver copra to a certain Fely Rodado
at Barangay Green Valley, Ormoc City. After delivering copra
AUSTRIA-MARTINEZ, J.: around 5:00 in the afternoon, the three men headed back to
Barangay Esperanza. While they were along a trail leading to the
Before us is an appeal taken by accused Marcelo Bates from the house of Carlito Bates, the latter suddenly emerged from the
Judgment of the Regional Trial Court of Ormoc City (Branch 35) thick banana plantation surrounding the trail, aiming his firearm at
finding him guilty beyond reasonable doubt of the crime of Jose Boholst who was then walking ahead of his companions.
Murder and sentencing him to suffer imprisonment of "forty years Jose grabbed Carlito’s right hand and elbow and tried to wrest
of reclusion perpetua". possession of the firearm. While the two were grappling for
possession, the gun fired, hitting Carlito who immediately fell to
The Information states: the ground. At that instant, Marcelo Bates and his son Marcelo
Bates, Jr., brother and nephew of Carlito, respectively, emerged
That on or about the 28th day of November 1995, at from the banana plantation, each brandishing a bolo. They
around 5:30 o’clock in the afternoon, in Brgy. Esperanza, immediately attacked Jose hacking him several times. Jose fell to
Ormoc City, and within the jurisdiction of this Honorable the ground and rolled but Marcelo and his son kept on hacking
Court, the above-named accused MARCELO BATES and him. Marcelo, then, turned to Simon and Edgar and shouted
"huwes de kutsilyo". Upon hearing the same, Simon and Edgar
ran.2
Around 5:30 of the same afternoon, Concepcion Boholst, wife of
Jose, was at their home preparing dinner. Upon being informed
by a certain Violeta Fuentes that Jose was waylaid, she
immediately went to the place where the incident reportedly
happened which is less than a hundred meters from their house.
There, she saw Marcelo Bates and his son Marcelo, Jr. hacking
Jose who was lying face up. She pleaded for them to stop but
they did not listen. She did not see Carlito. She went home
fearing for her life, thinking that Marcelo and his son might turn
their ire on her.3
The version of the defense:
Around 5:00 in the afternoon of November 28, 1995, Ponciano
Sano went to the house of Marcelo Bates. Ponciano was sent by
Barangay Captain Feliseo Sano to get a chicken from Marcelo.
While they were trying to catch a chicken, they noticed Jose
Boholst, Edgar Fuentes, and Simon Fuentes approach the house
of Carlito Bates which is about twenty meters away from
Marcelo’s house. Thereafter, they saw Jose drag Carlito out of
the latter’s house while both were arguing and grappling. Marcelo
immediately ran towards Jose and Carlito but when Marcelo was
about to approach them, Jose shot Carlito with a gun. Edgar and
Simon ran away. Upon seeing Carlito fall to the ground, Marcelo
attacked Jose but the latter also fired a shot at him. However,
Marcelo was able to duck and avoid being shot. Jose was about
to shoot Marcelo a second time but the latter retaliated by
hacking Jose with a bolo hitting him on his neck and causing him
to fall to the ground. Marcelo then went to the aid of his brother
Carlito but upon seeing that he was already dead, he went back
to where Jose was lying and again hacked him. Thereafter,
Ponciano picked up the gun used by Jose and surrendered it to
Barangay Captain Sano. Marcelo also surrendered himself to the
said barangay captain. During the whole incident Marcelo Bates,
Jr. was not present.4
Upholding the prosecution evidence, the trial court rendered its
Judgment, dated June 4, 1999, the dispositive portion of which
reads as follows:
Wherefore, all the foregoing considered, the Court finds
the accused Marcelo Bates GUILTY beyond reasonable
doubt of the crime of murder as charged and hereby
sentences him to suffer imprisonment of forty (40)
years reclusion perpetua after appreciating the mitigating
circumstance of voluntary surrender, and to pay the
offended party the sum of P50,000.00 as indemnity and
another sum of P50,000.00 as moral damages.
If the accused is a detainee, the period of his
imprisonment shall be credited to him in full provided he
abides in writing by the terms and conditions for convicted
prisoners, otherwise, for only four-fifths (4/5) thereof.
SO ORDERED.
Aggrieved, Marcelo Bates brought the present appeal. He raises
the following:
ASSIGNMENT OF ERRORS
I
 THE TRIAL COURT GRAVELY ERRED IN NOT GIVING
EXCULPATORY WEIGHT TO THE DEFENSE
INTERPOSED BY ACCUSED APPELLANT.
II
THE TRIAL COURT GRAVELY ERRED IN GIVING FULL
WEIGHT AND CREDENCE TO THE INCREDIBLE AND
INCONSISTENT TESTIMONIES OF THE PROSECUTION
WITNESSES.
III
THE TRIAL COURT GRAVELY ERRED IN
APPRECIATING THE QUALIFYING CIRCUMSTANCE OF
TREACHERY DESPITE FAILURE OF THE
PROSECUTION TO PROVE ITS ATTENDANCE IN THE
COMMISSION OF THE CRIME CHARGED ON THE
ASSUMPTION THAT ACCUSED-APPELLANT DID NOT
ACT IN SELF-DEFENSE.
IV
THE TRIAL COURT GRAVELY ERRED IN NOT
CONSIDERING PASSION AND OBFUSCATION AS A
MITIGATING CIRCUMSTANCE IN FAVOR OF
ACCUSED-APPELLANT ON ASSUMPTION THAT THE
LATTER DID NOT ACT IN SELF-DEFENSE.5
Appellant claims self-defense. Under Article 11 of the Revised
Penal Code, anyone who acts in defense of his person or rights
do not incur any criminal liability provided that the following
circumstances concur: First, unlawful aggression on the part of
the victim; second, reasonable necessity of the means employed
to prevent or repel it; and third, lack of sufficient provocation on
the part of the person defending himself.6 It is a settled rule that
when an accused admits killing the victim but invokes self-
defense, it is incumbent upon him to prove by clear and
convincing evidence that he acted in self-defense; and as the
burden of the evidence is thus shifted to him, he must rely on the
strength of his own evidence and not on the weakness of the
prosecution.7
After scrutiny of the evidence presented, we agree with the trial
court that self-defense was not established by appellant. He
testified that he initially inflicted only a single hack wound on the
neck of Jose causing the latter to fall to the ground. He then went
to the aid of his brother Carlito but upon finding that he was
already dead, he went back to where Jose fell. Appellant
admitted that at that time, Jose was in a lying position still alive
but hardly moving.8 Under such a situation, Jose could have
hardly put up any defense, much less, make an aggressive move
against appellant. Despite Jose’s condition, appellant repeatedly
hacked Jose. Granting that Jose was the one who first committed
unlawful aggression, appellant was no longer justified in further
inflicting wounds upon Jose because at that time, the latter was
already lying helpless on the ground. At that moment, unlawful
aggression on the part of Jose had ceased. It is a settled rule that
when unlawful aggression ceases, the defender has no longer
any right to kill or wound the former aggressor, otherwise,
retaliation and not self-defense is committed.9 Hence, the fact
that unlawful aggression on the part of Jose already ceased
when Marcelo repeatedly hacked him rules out the possibility of
self-defense, whether complete or incomplete.10 Thus, the first
assigned error is without merit.
In his second assigned error, appellant questions the credibility of
the prosecution witnesses. We have time and again, held that the
issue of credibility is a question best addressed to the province of A. This Jose Boholst dragged my elder brother from
the trial court because of its unique position of having observed the door to the yard.
that elusive and incommunicable evidence of the witnesses’
deportment on the stand while testifying which opportunity is Q. And how far were you at that time when you
denied to the appellate courts; and absent any substantial reason noticed that Jose Boholst drag your brother?
which would justify the reversal of the trial court’s assessments
and conclusions, the reviewing court is generally bound by the A. At the same distance of about 20 meters from our
former’s findings, particularly when no significant facts and house.
circumstances were shown to have been overlooked or
disregarded which when considered would have affected the Q. While you said that Jose Boholst dragged your
outcome of the case.11 In the present case, the trial court found brother Carlito Bates, were they arguing with each other?
the testimonies of the prosecution witnesses to be more credible
than those of the defense witnesses. A. Yes, sir and they were grabbling(sic).

We find no cogent reason to depart from the findings of the trial Q. Do you know what they were arguing about?
court.
A. I’ve heard that they were arguing about the palm of
Prosecution witness Edgar Fuentes testified that Jose and Carlito the coconut tree.
grappled for possession of the gun. Appellant insists that this is
belied by the absence of gunpowder burns on the wound of Q. What else did you know if you notice that Carlito
Carlito. Appellant cites the medical findings and the testimony of Bates was arguing as a matter of fact they were
Dr. Rogelio Mercado who conducted the autopsy on the bodies of grabbling(sic) each other, what did you do?
Jose and Carlito, to the effect that the absence of gunpowder
burns on the wound of Carlito would indicate that he and Jose did A. Jose Boholst shot my elder brother.
not fight for the possession of the gun. We are not convinced.
Q. My question is, after you noticed that Jose Boholst
The finding of the physician is not certain and conclusive as it is and Carlito Bates were arguing, what if any did you do?
contradicted by no less than appellant himself when he testified,
as follows: A. I approached them.

Q. After you noticed Jose Boholst with two Q. Why?

companions went to your house of your elder brother,
what did you notice if there was any? A. I was about to settle them down, but when I arrived
and my brother already fell down.
 Q. What happened to your brother, why did he fell
down?
A. Because he was shot by Jose Boholst.12
Further, appellant claims that the testimony of Concepcion
Boholst should not be given credence. He argues that if
Concepcion really witnessed the killing of her husband, she
should have seen the body of Carlito Bates who was then lying
dead on the ground at the place where her husband was
allegedly being hacked and stabbed. We are not persuaded.
We agree with the Office of the Solicitor General that it was
natural for Concepcion to fail to notice the body of Carlito when
she was faced with the shocking scene of her husband being
hacked and stabbed to death by appellant and his son. The
Supreme Court has long recognized that different people react
differently to a given type of situation, and there is no standard
form of behavioral response when one is confronted with a
strange, startling or frightful experience.13 In the present case, it
is perfectly normal for Concepcion to be oblivious of the persons
who were present at the crime scene at that time because of the
frightening sight that confronted her.
Appellant points out inconsistencies in the testimonies of
prosecution witnesses Edgar and Concepcion. However, it is
more apparent than real. Edgar and Concepcion witnessed the
crime at different stages of its execution. The failure of Edgar and
Concepcion to see each other at the crime scene can be
gathered from their testimonies that at the time Concepcion
arrived at the scene of the crime, Edgar, together with his brother
Simon, already left. Granting that there was indeed an
inconsistency in the testimonies of Edgar and Concepcion such is
only a minor flaw that does not affect their credibility. Both did not
detract from the main fact at issue and were consistent in
positively identifying appellant and his son as the ones who killed
Jose. Discrepancies and inconsistencies in the testimonies of
witnesses referring to minor details, and not in actuality touching
upon the central fact of the crime, do not impair their credibility.14
As to the failure of the prosecution to present other witnesses,
the rule is settled that the prosecution is imbued with the
discretion to choose whom to present as witnesses.15 The
prosecution need not present each and every witness but only as
may be needed to meet the quantum of proof necessary to
establish the guilt of the accused beyond reasonable doubt. The
testimonies of the other witnesses may, therefore, be dispensed
with for being merely corroborative in nature. This Court has
ruled that the non-presentation of corroborative witnesses would
not constitute suppression of evidence and would not be fatal to
the prosecution’s cause.16 Hence, the non-presentation of Violeta
Fuentes, Simon Fuentes and Junior Comesyon as witnesses for
the prosecution is not fatal to its cause nor may it be considered
suppression of evidence, as their testimonies would merely
corroborate the earlier testimonies of Edgar and Concepcion.
However, we agree with the contention of the appellant that the
trial court erred in appreciating the qualifying circumstance of
treachery.
The pertinent provision of Article 14 of the Revised Penal Code
reads:
Art. 14. Aggravating circumstances. – The following are
aggravating circumstances:
…
 16. That the act be committed with treachery (alevosia).
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.
Under established jurisprudence, two conditions must concur to
establish treachery: (1) the employment of means of execution
that gives the person attacked no opportunity to defend himself or
retaliate, and (2) the means of execution was deliberately or
consciously adopted.17 We have held in a line of cases that:
[c]ircumstances which qualify criminal responsibility, such
as treachery, cannot rest on mere conjecture, no matter
how reasonable or probable such conjecture may be. They
must be based on facts of unquestionable existence. Such
circumstances must be proved as indubitably as the crime
itself. Treachery as a qualifying circumstance should be
established by proof beyond reasonable doubt.18
In the present case, the only evidence presented by the
prosecution to prove that there was treachery was the testimony
of Edgar Fuentes that while Jose and Carlito were grappling, he
saw appellant and his son emerge from the thick banana
plantation and attack Jose with the bolos they were carrying.
This, alone, does not prove treachery. In People vs. Albao,19 we
held that:
As a rule a sudden attack by the assailant, whether
frontally or from behind, is treachery, if such mode of
attack was coolly and deliberately adopted by him with the
purpose of depriving the victim of a chance to either fight
or retreat. The rule does not apply, however, where the
sudden attack was not preconceived and deliberately
adopted but was just triggered by the sudden infuriation on
the part of the accused because of the provocative act of
the victim, or where their meeting was purely accidental.
In People vs. Magaro,20 we held that:
The circumstance that an attack was sudden and
unexpected to the person assaulted did not constitute the
element of alevosia necessary to raise homicide to
murder, where it did not appear that the aggressor
consciously adopted such mode of attack to facilitate the
perpetration of the killing without risk to himself. Treachery
cannot be appreciated if the accused did not make any
preparation to kill the deceased in such manner as to
insure the commission of the killing or to make it
impossible or difficult for the person attacked to retaliate or
defend himself.
There is nothing to indicate from the testimony of Edgar that
appellant and his son employed means and methods to insure
that they will be able to attack Jose without risk to themselves
arising from any defense that Jose might make. There is no
evidence to show that they purposely remained hidden in the
thick banana plantation awaiting for the opportune time to attack
Jose with impunity.
Hence, for failure of the prosecution to prove treachery or any
other circumstance which would qualify the killing of Jose to
murder, appellant should only be held liable for the crime of
homicide punishable under Article 249 of the Revised Penal
Code.
Appellant was able to prove the mitigating circumstance of
voluntary surrender, as shown by the testimony of Barangay
Captain Feliseo Sano.21
Passion and obfuscation may not be properly appreciated in
favor of appellant. To be considered as a mitigating
circumstance, passion or obfuscation must arise from lawful
sentiments and not from a spirit of lawlessness or revenge or
from anger and resentment.22 In the present case, clearly,
Marcelo was infuriated upon seeing his brother, Carlito, shot by
Jose. However, a distinction must be made between the first time
that Marcelo hacked Jose and the second time that the former
hacked the latter. When Marcelo hacked Jose right after seeing
the latter shoot at Carlito, and if appellant refrained from doing
anything else after that, he could have validly invoked the
mitigating circumstance of passion and obfuscation. But when,
upon seeing his brother Carlito dead, Marcelo went back to Jose,
who by then was already prostrate on the ground and hardly
moving, hacking Jose again was a clear case of someone acting
out of anger in the spirit of revenge.
Concepcion Boholst testified that the death of her husband, Jose,
caused her deep anguish and sleepless nights.23 The award of
moral damages in the amount of P50,000.00 is therefore justified.
And pursuant to existing jurisprudence, the heirs of the deceased
are entitled to civil indemnity in the amount of P50,000.00 as
correctly awarded by the trial court plus P25,000.00 for temperate
damages, representing the expenses they incurred for the wake
and burial of the deceased.24
Under Article 249 of the Revised Penal Code, homicide is
punishable by reclusion temporal. Applying the Indeterminate
Sentence Law and appreciating the mitigating circumstance of
voluntary surrender which is not offset by any aggravating
circumstance, the maximum period of the penalty to be imposed
shall be taken from the minimum of reclusion temporal which is
12 years and 1 day to 14 years and 8 months; while the minimum
period shall be taken from the penalty next lower in degree which
is prision mayor or 6 years and 1 day to 12 years.
For the guidance of both the bench and bar, it must be mentioned
that the trial court committed an error in imposing the penalty of
"forty (40) years of reclusion perpetua". We reiterate our earlier
pronouncements in a number of cases that while Section 21 of
RA No. 7659 amended Article 27 of the Revised Penal Code by
fixing the duration of reclusion perpetua from 20 years and 1 day
to 40 years, reclusion perpetua remains to be an indivisible
penalty in the absence of a clear legislative intent to alter its
original classification as an indivisible penalty.25 Hence, in
applicable cases such as the present case, "reclusion perpetua"
should simply be imposed without specifying its duration.
WHEREFORE, the decision of the Regional Trial Court of Ormoc
City, Branch 35, is MODIFIED. Appellant Marcelo Bates is hereby
found guilty beyond reasonable doubt of the crime of Homicide
and is sentenced to suffer the indeterminate penalty of six (6)
years and one (1) day of prision mayor as the minimum to twelve
(12) years and one (1) day of reclusion temporal as the
maximum; and is ordered to pay the Heirs of Jose Boholst the
amounts of P50,000.00 as civil indemnity for the latter’s death,
P50,000.00 for moral damages and P25,000.00 as temperate
damages.
SO ORDERED.
Bellosillo, Mendoza, Quisumbing, and Callejo, Sr., JJ., concur.
People vs. Pinca G.R. No. 129256; 318 SCRA 270
November 17, 1999
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 129256 November 17, 1999
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JOEL PINCA y HUARDE, accused-appellant.
PANGANIBAN, J.:
Republic Act 7659 defines the so-called heinous crimes. Not all
convictions involving such crimes automatically warrant the
imposition of the death penalty. There are specific qualifying
and/or aggravating circumstances that must both be alleged in
the information and proven during the trial, before the criminal
offenders may be sentenced to death. Absent any of these
specific qualifying and/or aggravating circumstances, the capital
penalty cannot be imposed. Accordingly, in the present case,
while the appellant can be convicted of murder on the basis of
the established facts, the penalty must be reduced to reclusion
perpetua, because the prosecution failed to prove any
aggravating circumstance.
The Case
In an Information 1 dated May 22, 1995 filed by 2nd Assistant
Provincial Prosecutor Reinerio S. Namocatcat, Appellant Joel
Pinca y Huarde was charged with murder, committed as follows:
That on or about the 16th day of January, 1995, in
the [M]unicipality of Balilihan, [P]rovince of Bohol,
Philippines and within the jurisdiction of this
Honorable Court, the above-named accused,
armed with a round piece of wood, with intent to kill,
and without justifiable motive, with evident
premeditation, treachery and abuse of superior
strength, did then and there willfully, unlawfully and
feloniously and suddenly attack, assault and strike
one Conrado Angcahan who was unarmed and
unaware of the said attack, hitting the latter on the
vital parts of his body resulting [in] his death, and
without giving the victim an opportunity to defend
himself; to the damage and prejudice of the heirs of
the deceased in the amount to be prove[n] during
the trial.
Upon his arraignment on August 11, 1995, the accused-appellant
duly assisted by his counsel, Atty. Alfonso Damalerio, pleaded
not guilty to the charge. 2 Thereafter, trial ensued. 3 On January
8, 1997, the 3-page "Judgment" 4 was promulgated, finding
accused-appellant guilty as charged but, quite faultily, sentencing
him to the penalty of "reclusion perpetua to death." The
dispositive portion of the Judgment reads:
WHEREFORE, premises considered, the Court
finding accused Joel Pinca GUILTY beyond
reasonable doubt of the crime of murder, hereby
 sentences him to suffer the penalty of reclusion
perpetua to death qualified by treachery and
evident premeditation punishable under Art. 248 of
the Revised Penal Code in relation to Sec. 6 of R.A.
7659, [an] [A]ct to impose the death penalty on
certain heinous crimes, and to indemnify the heirs
of the victim [in] the amount of P50,000.00, with
cost de oficio.
The case was elevated to this Court for automatic review, in view
of the death sentence. 5
The Facts
Version of the Prosecution
The trial court summarized the prosecution evidence as follows:
Evidence for the prosecution disclosed that in the
afternoon of January 16, 1995, witness Gerry
Abenir after disembarking from a passenger bus
which he rode from Tagbilaran City to Balilihan,
Bohol, together with a friend, entered the Madona's
Bake Shop located at the public market of Balilihan,
Bohol. Upon entering, Gerry Abenir saw accused
Joel Pinca [who] made a remark that somebody
splashed [him with] liquor [and that] if it were not for
the presence of the shop owner, he would have
inflicted injuries to the person responsible. At about
7:00 P.M. Gerry and the accused rode on a
passenger motorcycle (habal-habal) driven by one
Wilfredo Lumantas on their way home to Del
Carmen Weste and Dorol, Balilihan, Bohol. When
they were about to reach Gerry's place, they
passed by the victim, Conrado Angcahan walking
on the road in an unsteady manner. The motorcycle
stopped and both Gerry and the accused
disembarked. The accused told Gerry that he would
wait for the victim for he was the person who
splashed [on] him liquor earlier in the afternoon.
The accused got a piece of wood, waited for the
victim and once near, the accused suddenly and
without warning, struck the victim hitting the latter
on the head rendering the victim unconscious and
deprived of a chance to defend himself. Gerry
Abenir, who was gripped with fear, ran away
towards his house and never reported the matter to
the police. However, at 5:00 o'clock in the morning
of the next day, he started to dress up to report the
incident but police officer Victor Llano arrived and
6 made an inquiry fo [sic] the incident of which he
(Gerry) obliged. After receiving the report, police
officer Llano together with Gerry Abenir proceeded
to the house of the accused. The accused denied
any participation. Gerry Abenir went home to his
house but moments later, two (2) police officers
arrived and again they returned to the house of the
accused, who was no longer around. They
proceeded to the police station and took down the
written statements of Gerry Abenir.
Version of the Defense
On the other hand, the testimony of accused-appellant was
summed up in this wise: 7
For his defense, the accused declared that at
around 6:30 in the evening of January 16, 1995,
Gerry Abenir together with a friend entered
Madona's Bake Shop and ordered beer and then
offered to drink with them. While drinking, Conrado
Angcahan approached Gerry Abenir and asked for
cigarettes. Gerry Abenir refused to give the victim
causing the latter to murmur and went away. At
about 7:00 in the evening, the accused and Gerry
Abenir rode on a passenger motorcycle driven by
Wilfredo Lumantas and proceeded to their home.
While on their way, they passed by the victim and
Gerry remarked that the said person Conrado
Angcahan was the one who asked him cigarette.
The motorcycle stopped and both Gerry Abenir and
the accused disembarked. Gerry Abenir called the
victim and once the victim got near to Gerry, the
two boxed each other. Gerry ran and got a piece of
wood and used it in hitting the victim. The victim fell
to the ground despite defending himself using his
forearm. While the victim was [on] the ground,
Gerry Abenir struck the latter hitting the head. He
was told by Gerry not to talk. The following morning,
police officer Llano arrived at his residence together
with Gerry Abenir. Because Gerry made signs not
to talk, the accused did not give information to the
police. After the police investigation, he proceeded
to Tagbilaran City to fetch his wife. While in
Tagbilaran City, he received an information that the
police of Balilihan, Bohol were looking for him. He
presented himself to the police and he was placed
in jail.
Ruling of the Trial Court
To justify his conviction of the accused, the trial judge summarily
wrote: 8
The Court, after evaluating the conflicting versions
of the prosecution and the defense, is inclined to
give credence to the former. Firstly, there was
motive on the part of the accused to inflict injuries to
the victim considering that the victim was
responsible in splashing liquor [on] the accused a
few hours before the incident. There was therefore
a score [to settle] on the part of the
accused. Secondly, Gerry Abenir's testimony that
the victim was hit on the nape was ably supported
by the Autopsy Report (Exhibit "C") made by Dr.
Jude Doblas. There is no showing in the autopsy
report that the forearms of the victim suffered
injuries which [was] contrary to the claim made by
the accused that the victim used his forearm in
defending himself from the striking blows made by
Gerry Abenir. Thirdly, it contrary to human
experience for Gerry Abenir to assault the victim,
who did nothing wrong nor provoked him.
With nary a discussion, the judge peremptorily concluded, "[T]he
crime was committed [with] treachery, thus, qualifying the crime
of murder."
Issues
In his 27-page Brief, 9 appellant through his counsel de
oficio 10 submits the following assignment of errors:
I. The trial court's decision is
inconsistent with the evidence.
A. the trial court erred in finding that
there was motive on the part of the
accused to inflict injuries on the victim.
B. the trial court erred in finding that
only the testimony of the prosecution
witness, Gerry Abenir, [was]
supported by the autopsy report.
C. the trial court erred in finding that
there was no motive on the part of the
prosecution witness, Gerry Abenir, to
assault the victim.
II. The trial court's decision is
inconsistent with law and
jurisprudence.
A. the trial court erred in appreciating
the qualifying circumstance of
treachery.
B. the trial court erred in appreciating
the aggravating circumstance of
evident premeditation.
C. the trial court erred in not
appreciating voluntary surrender as a
mitigating circumstance.
III. The trial court violated the
constitutional presumption of
innocence as it resolved all doubts
against the appellant.
IV. The sentence of death imposed by
the trial court is an unconstitutional
penalty and thus void.
A. murder as defined by R.A. No.
7659 is not a heinous crime.
B. there is no compelling reason to
reimpose the death penalty for
murder.
In his Reply Brief, 11 appellant further submits that in the event his
conviction is upheld, intoxication should be appreciated as a
mitigating circumstance.
In sum, there are really three issues being raised by the
appellant: (1) the credibility of the witnesses and the sufficiency
of the prosecution evidence; (2) the presence of the modifying
circumstances of treachery, evident premeditation, voluntary
surrender and/or intoxication; and (3) the constitutionality of the
death penalty for the crime of murder.
The Court's Ruling
We affirm that Appellant Joel Pinca is guilty of murder. However,
there being no aggravating circumstance warranting the
imposition of death, the proper penalty is reclusion perpetua.
Since the factual circumstances do not merit the death penalty as
prescribed under RA 7659, the Court finds it unnecessary to
tackle the constitutional question raised by appellant. In addition,
we grant actual damages to the heirs of the victim, consistent
with current jurisprudence.
First Issue:
 Credibility of the Witnesses and Other than the victim who has been muted forever, there were
only two eyewitnesses to the crime. One was the principal
Sufficiency of the Prosecution Evidence prosecution witness, Gerry Abiner; 18 the other was appellant
himself. Interestingly, each points to the other as the culprit. Their
The issues of which witnesses and whose testimonies are to be respective testimonies must, therefore, be carefully evaluated in
believed are best addressed by the trial judge, who had the detail to find out which one is truthful and credible.
unique opportunity to observe the witnesses firsthand and to note
their demeanor, conduct and attitude on the witness The following is Prosecution Witness Abiner's version of the
stand. 12 Undeniably, these are significant factors in evaluating a incident: 19
witness' honesty, sincerity and credibility; and in unearthing the
truth, especially in the face of conflicting testimonies. Because of Q. On January 16, 1995 did you
his direct observations of the entire proceedings, the trial judge is report to your work at Quad Motors
in the best position to determine reasonably whose testimonies to here in the City of Tagbilaran?
accept and which witnesses to believe or disbelieve. 13
A. Yes, Sir.
Thus, the trial court's assessment of the credibility of witnesses
and their testimonies is generally entitled to great respect and will xxx xxx xxx
not be disturbed on appeal, 14 unless (1) it is found to be clearly
arbitrary or unfounded; (2) some substantial fact or circumstance Q. Did you also go home at the
that could materially affect the disposition of the case was afternoon of that day?
overlooked, misunderstood or misinterpreted; 15 (3) the trial judge
gravely abused his or her discretion; 16 or (4) the judge who A. Yes.
penned the appealed decision was not the same one who had
presided over the trial and heard the witnesses testify. 17 Q. And about what time did you arrive
at Balilihan, Bohol?
In view of the scanty discussion in the assailed Decision, we
thoroughly perused the transcripts of the witnesses' testimonies A. At about 6:00 o'clock in the
and examined the other pieces of evidence on record. After evening.
evaluating the evidence proffered by both the prosecution and
the defense, we see no reason to reverse or modify the trial Q. Upon arriving at Balilihan did you
court's findings on the credibility of the prosecution witnesses and immediately go home to your place at
their testimonies. Del Carmen, Balilihan, Bohol?

A. Not yet, Sir.

Q. Where did you go instead?
A. I entered in the bakeshop or bakery
yet.
Q. Who is the owner of that bakery?
A. Bebbie Chatto.
Q. And what did you do there?
A. [I] and my companion Mer entered
the bakery in order to drink.
Q. And what did you drink there?
A. We dr[a]nk beer.
Q. Did you see the accused Joel
Pinca at the bakery?
A. Yes.
Q. And then, what did you do to Joel
Pinca?
A. I offered my glass [of] beer and he
also drank.
Q. How long did you, together with
Mer and the accused drink at the
bakery?
A. Almost one (1) hour.
Q. While drinking beer at the bakery,
what did accused Joel Pinca tell you,
if any?
A. Joel Pinca said: "[A] while ago
Pare, kanina Pare, someone splashed
on me some drink".
Q. What else did the accused tell
you?
A. He said that if not because of
Bebbie he would have boxed
(banatan) that person.
Q. Did Joel Pinca tell this in Visayan
or Tagalog?
A. In the Tagalog language.
Q. Now, you said that you drank beer
at the bakery of Bebbie Chatto, for
about one (1) hour from 6:00 o'clock
in the early evening of January 16,
1995[;] one (1) hour after where did
you proceed?
A. We rode on the Habalhabal driven
by Fredo Lumantas in . . . going home
[— I] and Joel Pinca.
Q. Do I understand correctly that his
habalhabal is an improvised
motorcycle for the purpose of public
riding?
A. That is correct.
Q. Now, you told the court a while ago
that you and the accused Joel Pinca
rode on the habalhabal driven by one
Fredo Lumantas[;] towards where, did
the two of you ride on the habalhabal?
A. We were on our way home.
Q. By the way, what place in Balilihan
is this Joel Pinca residing?
A. He is residing at Dorol, Balilihan,
Bohol.
Q. Which is nearer to the Poblacion,
Balilihan, your barangay of Del
Carmen Weste or Dorol?
A. Their barangay Dorol is farther than
my barrio.
Q. But . . . did he pass in Del Carmen,
Balilihan?
A. That is correct.
Q. This is the reason why the two of
you, you and the accused were riding
on the habal-habal, motorcycle?
A. That is correct.
Q. While you were nearing the place
where you would disembark at Del
Carmen, whom did you see, if any?
A. While the habal-habal was still
running we passed by at Dodong
Conrado Angcahan.
Q. Now, you are telling this Honorable
Court that Dodong Conrado
Angcahan was walking on the road
towards Del Carmen, [E]ste?
A. Yes, he was walking.
Q. Did you notice the manner he was
walking?
A. Yes, I saw him walking as if he was
dragging and sometimes he
stumble[d], as if he was dr[u]nk.
Q. Eventually, did you reach the place
of that road where you would
disembark?
A. We disembarked at the corner in
going home.
Q. Were you only the one who
disembarked at that time?
A. We disembarked both of us and he
told me, "I will disembark here Pare,
because the person who splashed
drink on me is in this place."
Q. To whom was the accused
referring as the person who splashed
drink on him?
A. This Conrado Angcahan.
Q. Why do you know that he was
referring to Conrado Angcahan?
A. Because he was the very person
whom we passed and there is no
other person except Conrado
Angcahan.
xxx xxx xxx
Q. After both of you disembarked from
the habal-habal driven by Fredo
Lumantas, what happened if any?
A. Joel picked up something to strike
and struck this Dodong Conrado.
Q. What was that something that the
accused got and later on struck on
Conrado Angcahan?
A. He picked-up a piece of wood, he
used this piece of wood in striking
Conrado Angcahan.
Q. Where did the accused get that
piece of wood?
A. Joel got that piece of wood from
the pile of woods right at that place.
Q. Right at the side of the road where
you disembarked?
A. Yes.
Q. What is the distance of the place
from the very place [where] you
disembarked?
A. About two (2) meters.
Q. You actually saw that piece of
wood?
A. Yes.
Q. You said that with that piece of
wood Joel Pinca struck Dodong
Conrado Angcahan[;] was Conrado
Angcahan hit?
A. Yes.
Q. What portion of Conrado A. It was moonlight night.
Angcahan's body was hit?
Q. And what happened to Conrado
A. Hit right on the back side of his Angcahan after he was hit at the back
neck. of his head?

INTERPRETER: A. What I saw after Dodong was hit,

he staggered towards the ground.
Witness is touching the back portion
of his neck. Q. What about you, what did you do
upon seeing the accused beat the
FISCAL UCAT: victim?

Q. How far were you from the victim A. I ran towards our house.
and the accused at the very time the
accused beat the victim with the piece The consistency and the coherence of Abiner's tale are easily
of wood? perceptible. In contrast, appellant's version is as follows: 20

A. About ten (10) meters. Q. On January 16, 1995 in the

afternoon of that date where were
Q. What was the probable time when you?
the incident happened?
A. I was at the store of Madona's
A. More or less [at] 7:00 o'clock in the Bakery.
evening.
Q. Where is this Madona's Bakery
Q. Of January 16, 1995? located?

A. Yes. A. It is situated at Poblacion, Balilihan,

Bohol.
Q. So, that beating incident happened
in the evening[;] how [were] you able Q. What were you doing at Madona's
to see Joel Pinca beating the victim Bakery at that time?
with the piece of wood?
A. I was working.
Q. May we know what is your work at
Madona's Bakeshop?
A. Sometimes I [bake] bread and I
help in the bakery.
Q. Do you know a certain Gerry
Abiner of Balilihan, Bohol?
A. I do not know his name yet but I
know his face.
Q. On January 16, 1995 in the
afternoon thereof, can you recall if this
Gerry Abiner was in the Madona's
bakeshop of Poblacion, Balilihan,
Bohol?
A. He was there.
Q. About what time did you see Gerry
Abiner at the bakeshop?
A. About 6:30 in the evening.
xxx xxx xxx
Q. And when Gerry Abiner entered
the bakeshop what did he do?
A. When Gerry Abiner entered the
store on the bakeshop Dodong asked
cigarettes from him.
Q. Do you know the real name of
Dodong and [his] family name?
A. The name is Conrado Angcahan.
Q. When this Conrado Angcahan
asked cigarettes from Gerry Abiner
how far were you?
A. About where I am [seated] now to
the place of the Interpreter measuring
1 1/2 meters.
xxx xxx xxx
Q. Is that within your hearing
distance[,] that 1 1/2 meters?
A. Yes.
Q. This Gerry Abiner what did he say
when he asked cigarettes from
Conrado Angcahan?
A. Gerry asked Conrado saying
"[W]hat are you, are you a policeman
that you are asking cigarettes from
me?"
Q. Did Conrado Angcahan answer
that statement from Gerry Abiner?
A. Conrado Angcahan murmured and
immediately thereafter went out.
Q. And after Conrado Angcahan went
out what did Gerry Abiner do?
A. Gerry ordered drinks.
Q. What drinks [did] Gerry Abiner
[ordered]?
A. He ordered beer.
xxx xxx xxx
Q. So after Gerry Abiner ordered the
drinks do you know what time did
Gerry Abiner [go] out [of] the store?
A. I cannot remember the time.
Q. Did you somehow have some
conversation with Gerry Abiner?
A. No, he just called me and offered
me saying "let us have the shot Pare."
Q. When Gerry Abiner stated "Pare
have a shot" were you asked what
may that shot [be]?
A. He offered [it] to me.
Q. Did you accept the offer of Gerry
Abiner?
A. Yes.
Q. And did you ha[ve] any
conversation after you accept[ed] the
offer of Gerry Abiner?
A. No more, but I just accepted the
offer.
Q. After drinking in the bakeshop what
[did] Gerry Abiner do?
A. He also [drank] with his companion.
Q. Until what time?
A. [Until about] 7:00 o'clock in the
evening.
Q. What time did the store close?
A. About 7:00 o'clock, that was the
moment I was about to close the
store.
xxx xxx xxx
Q. Do you know where [does] Gerry
Abiner live?
A. He goes home [to] Carmen.
Q. What mode of transportation did
you take in going home?
A. I rode on a motorcycle service,
habal-habal.
Q. What about Gerry Abiner do you
know what mode of transportation did
he take in going home?
A. We rode together in the motor
service called habal-habal.
Q. When you stated you rode
together, you mean you and Gerry
Abiner rode on the same motor
service in going to the respective
places?
A. Yes.
Q. How many passengers were there
in the habal-habal together with you
and Gerry Abiner?
A. We were three; myself, Gerry and
the driver.
Q. Upon riding the habal-habal, you
will be going to your place in Dorol, is
that correct?
A. Yes, this is correct.
xxx xxx xxx
Q. On January 16, 1995 at about 7:00
o'clock in the evening together with
Gerry Abiner riding on the motor
service [do] you remember if there
was anything that happened?
A. When we were riding going home
to Dorol we passed by a person.
Q. The person that you passed by [—]
where was this particular place when
you saw a certain person you passed
by?
A. Near the place where Gerry Abiner
disembarked.
Q. When you passed by that person
with Gerry Abiner did any unusual
event [happen]?
A. Not yet.
Q. You said nothing happened yet,
[was] there anything [that] happened?
A. When we passed by that person
while Gerry disembarked he called
that person by saying, 'shit-shit, he
called by sound which is in the
vernacular sitsit.
Q. After Gerry called shitshit that
person did the person response[d]?
A. That person answered.
Q. What did that person answer?
A. That person said "what?".
Q. And then Gerry Abiner, what [did
he] say if any?
A. What I saw [was] they boxed each
other already.
Q. This person whom Gerry called,
[when] you disembarked [from] the
motor service did you recognize that
person?
A. I kn[e]w his name but I did not
know his face.
Q. What is the name of that person?
A. Dodong.
Q. Do you know the family name of
Dodong?
A. Angcahan.
Q. You stated earlier that when Gerry
Abiner entered the Madona's
Bakeshop one person by the name of
Dodong Angcahan approached Gerry
Abiner and asked for cigarettes,
please tell the Honorable Court what
[is the] relation, if any, [of] this Dodong
Angcahan whom you saw in Madona's
Bakeshop [to the] Dodong Angcahan
whom you said you passed by and
later on have fist fight with Gerry
Abiner?
A. He is the very same person.
xxx xxx xxx
Q. And then while they were having
the fist fight what did Gerry Abiner do?
A. Gerry Abiner ran to get a piece of
wood.
Q. Then what did Gerry Abiner do with
his piece of wood?
A. He used it in striking Dodong.
Q. When Gerry Abiner struck [Dodong
Angcahan with] a piece of [wood] . . .
where was Conrado Angcahan hit?
A. Dodong was parrying the blow but
Gerry Abiner continued to strike . . .
Dodong and when Dodong [fell] to the
ground this Gerry continued to strike
him using the wood on his back.
Q. When Gerry Abiner struck Conrado
Angcahan who was already on the
ground can you please tell the
Honorable Court . . . what particular
part of the body was Conrado
Angcahan hit?
A. Right here, he was hit on the back
side of his neck.
INTERPRETER:
Witness is touching . . . the back side
of his neck.
Q. Now, what about you[,] upon
seeing Gerry Abiner striking at
Conrado Angcahan what did you do?
A. I sat down because I was afraid.
Q. Did you not help Conrado
Angcahan so that he [would] be able
to escape from the striking of Gerry
Abiner?
A. No, because I was [in] shock
because of my fear.
Q. Now, after Gerry Abiner struck at
Conrado Angcahan what next did
Gerry Abiner do?
A. After the striking blow made by
Gerry Abiner on Dodong Gerry
advised me not to report about the
incident.
Q. Upon being told by Gerry
Angcahan not to report the incident
what did you do?
A. I went home.
Q. What about Gerry Abiner where did
he go?
A. That I don't know because I already
went home.
Even a cursory reading of the above testimony immediately casts
doubts on its veracity. Such doubts swell as one goes through
appellant's statements during the cross-examination, which we
quote at length as follows: 21
Q. Who made [the] arrangement with
Alfredo Lumantas that you and Gerry
Abiner would ride on his motorcycle?
A. I also requested Alfredo Lumantas
that I . . . ride his motorcycle.
Q. Do I therefore understand correctly
that you told Alfredo Lumantas that
you were to disembark at Dorol?
A. Yes sir.
Q. You told Alfredo Lumantas that you
were to disembark at Dorol because
that was your destination, correct?
A. That is correct.
Q. By the way, how far is Dorol from
Del Carmen Weste?
A. More than one kilometer.
Q. That place where [G]erry Abiner
disembarked from the motorcycle, that
was already part of del Carmen
Weste, correct?
A. Yes sir.
Q. And so if Gerry Abiner
disembarked from the motorcycle, it
was because he had arrived at his
destination, correct?
A. That is correct.
Q. Did I get you right that near the
place where Gerry Abiner
disembarked, you passed by a certain
person?
A. That is correct.
Q. That person turned out to be
Conrado An[g]cahan nicknamed
Dodong, the victim in this case?
A. That is correct.
Q. And what was Dodong doing at the
precise time that you and Gerry
Abiner, together of course with Alfredo
Lumantas passed by him?
A. He was walking.
Q. Did you notice that Dodong could
not walk straight?
A. I did not notice but we passed by
him.
Q. That place where you saw Dodong,
how far is it from the place where
Gerry disembarked?
A. A distance of less than ten meters.
Q. Immediately before Gerry Abener
disembarked from the motorcycle,
what did he tell you if any?
A. He asked cigarette from me.
Q. Besides asking cigarette from you,
did Gerry Abener do anything to you?
A. Gerry said that person we passed
by was the person who asked
cigarette from me.
Q. That was all that Gerry Abener told
you, correct?
A. Yes sir.
Q. Did he do anything to you
immediately before he disembarked?
A. None.
Q. After Gerry Abener disembarked
from the motorcycle, what did he do to
you if any?
A. None.
Q. After Gerry Abener disembarked
from the motorcycle, what did he tell
you if any?
A. None.
Q. After Gerry Abener disembarked
form the motorcycle at del Carmen
Weste, did Alfredo Lumantas continue
driving towards Dorol with you riding
on the motorcycle?
A. No more sir because at the time
Gerry Abener disembarked from the
motorcycle, it was also the time when
the victim passed and Gerry called by
whistling [at] the victim.
Q. You mean to tell this Honorable
Court that after Gerry Abener
disembarked from the motorcycle, you
also disembarked?
A. Yes I also disembarked.
Q. How did it happen that you
disembarked at del Carmen Weste
when according to you earlier, you
even told Alfredo Lumantas that your
destination was Dorol more than one
kilometer still from del Carmen
Weste?
A. Because Gerry Abener told me that
we [would] just [disembark] here in
this place.
xxx xxx xxx
Q. Was that all Gerry Abener told you
'Let us just [disembark] here?
 A. [Those were] the only words Gerry
A[b]ener told me and when he was
about to disembark, that was also the
time the victim passed by and
immediately thereafter, he whistled
[at] the victim, and that was the time
they were boxing each other.
Q. And when Gerry A[b]ener told you
"Let us just disembark here", what did
you tell him if any?
xxx xxx xxx
A. I did not make an answer.
Q. In other words you did not even tell
Gerry Abener that [your] destination
was just yet Dorol?
ATTY. DAMALERIO:
The witness said I just did not tell Gerry Abener
anything.
COURT: For clarification.
Witness:
I was not able to tell him.
(Fiscal Ucat to witness)
Q. So why did you consent to Gerry
Abener when he told you to
disembark at del Carmen Weste when
your destination was Dorol?
A. He told me that we [would] just
disembark here, but I was not able to
say any word because the person
passed by which he called by
whistling.
Despite the paraphrasing of the question several times, appellant
could not give a clear and categorical answer. In fact, at some
point the trial court castigated him for being evasive and
admonished him to give truthful answers to the questions
asked. 22 At another time, the public prosecutor, exasperated that
he could not get a responsive answer from him, simply opted to
proceed to another topic. 23
Indeed, appellant equivocated when queried by the public
prosecutor. He failed to answer satisfactorily why he
disembarked together with Abiner, when his destination was still
a kilometer away. His vague reply bolsters apprehensions about
his credibility. Why indeed would he readily disembark a
kilometer away from his destination, simply because Abiner had
told him to? He neither protested, nor even remarked that he had
earlier contracted with the habal-habal driver to bring him farther
to Dorol, Balilihan, Bohol. What stunning effect did the sight of
Angcahan and the sound of Abiner's whistling have on him that
prevented him from uttering any word?
Moreover, the statement of appellant ("when [Abiner] was about
to disembark, that was also the time the victim passed by and
immediately thereafter, he whistled [at] the victim, and that was
the time they were boxing each other") could only be pure Abener ran he picked up a piece of
fallacy. First, he stated earlier that Abiner disembarked about ten wood and used it in striking Dodong.
meters from the place where they had seen and passed by
Angcahan. Second, appellant stated during his direct Q. Do I therefore understand from you
examination that in calling the attention of the victim, Abiner said correctly that the forearms of Dodong
"shit-shit," or "sit-sit" in the vernacular. On cross-examination, [were] not hit by the pi[e]ce of wood
however, appellant alleged that Abiner had whistled. Third, the which Gerry Abener used?
alleged fistfight between Abiner and Angcahan could not have
occurred immediately after the former disembarked because, if A. While Gerry Abener kept on striking
that were so, the habal-habal driver would have witnessed at Dodong, Dodong continued to parry
least part of the incident. However, the driver, who testified for the blow.
the prosecution, stated that he did not know what transpired after
his two passengers disembarked. 24 Q. So from your answer, do I get you
right that the forearms of Dodong
Furthermore, the alleged fistfight that led to the death of Conrado were hit by that piece of wood?
Angcahan was detailed by appellant as follows: 25
A. Yes because he kept on parrying
Q. In the fight between Gerry Abener the blow.
and Dodong, was Dodong able to
defend himself? Q. The forearms of Dodong were hit
several times by that piece of wood?
A. Yes because they continued
fighting and boxing. A. I did not count how many blows,
more than once.
Q. And using both their hands?
Q. Were the blows which landed on
A. Yes sir. the forearm of Dodong hard blows?

Q. And Dodong even used both his A. Yes because he fell.

arms when he was beaten by Gerry
Abener with a piece of wood? Appellant's statements are not supported by the autopsy report of
Municipal Health Officer Jude Doblas, which stated: 26
A. They ha[d] fist fight and Gerry
Abener ran away[,] then when Gerry
 FINDINGS: 1) on him was at that place, thus indicating that he had a definite
LACERATED WOUND purpose in mind against that person.
ABOUT 3 INCHES IN
LENGTH OVER THE Appellant then proceeded to pick up a piece of wood before
RIGHT OCCIPITO- approaching and then hitting the back of the head of Angcahan
PARIETAL REGION OF who was wobbling like a drunk, causing the latter to fall face
THE HEAD down immediately.

2) CONTUSION WITH This blow explains the laceration found on the back of the head
HEMATOMA OVER of Angcahan, the contusion on his face as reported by Dr.
THE ANTERIOR FACE Doblas, and the bloodied piece of wood found by the police that
same evening near his body. 27 The interval of time that elapsed
CASE OF DEATH: 1) CARDIO-RESPIRATORY from the moment appellant got down from the habal-habal,
ARREST picked up a piece of wood about two meters away, until he
approached the victim allowed the habal-habal driver to leave the
2) INTRA-CEREBRAL HEMORRHAGE premises without witnessing the murder incident.

3) LACERATED HEAD WOUND
Significantly, no contusions were found on the other parts of the
victim's body, particularly his arms. Certainly, there should have
been some if there was truth to appellant's account that the victim
parried Abiner's successive hard blows with his forearms. We can
only conclude that, altogether, appellant's testimony was full of
material inconsistencies and equivocations. It was not
creditworthy.
On the other hand, Witness Abiner's clear and unequivocal
account is more compatible with the evidence on record and
consistent with experience and reason. When he got down at his
home from the habal-habal, the appellant also did although his
point of destination was the next barrio. The latter told him that
the person (referring to Angcahan) who had earlier spilled liquor
Based on the foregoing, the Court concludes that the prosecution
evidence has established beyond reasonable doubt the guilt of
the appellant as the perpetrator of the murder of Conrado
Angcahan.
Second Issue:
Attendance of Modifying Circumstances
Treachery
For treachery to be considered a qualifying circumstance, two
conditions must concur: (1) the offender employed such means,
method or manner of execution as to ensure his or her safety
from the defensive or retaliatory acts of the victim; and (2) the
said means, method or manner of execution was deliberately
adopted. The essence of treachery is the deliberateness and the
unexpectedness of the attack, which give the hapless, unarmed
and unsuspecting victim no chance to resist or to escape. 28
In the case at bar, the victim, Conrado Angcahan, was just
walking by the roadside unsteadily, seemingly drunk. On
the other hand, appellant who recognized him as he
passed by, first picked up a piece of wood then used it to
whack the unsuspecting victim from behind, hitting him at
the back of his head. With the severe force of the blow, the
totally oblivious Angcahan simply slumped to the ground
face down.
The appellant's attack from behind, being sudden and deliberate,
was treacherous indeed. The victim was utterly unsuspecting,
thus, unable to put up any resistance or defense. These elements
make up the very essence of treachery. 29
Evident Premeditation
For evident premeditation to be appreciated as an aggravating
circumstance, there must be clear and convincing proof of the
following: (1) the time when the offender determined to commit
the crime, (2) an act manifestly indicating that he clung to his
determination, and (3) a sufficient lapse of time between such
determination and the execution that allowed the criminal to
reflect upon the consequences of his act. 30
The above elements were not established by the evidence. It was
not shown that appellant had resolved to kill Angcahan well
before the habal-habal that transported him passed by the victim.
Rather, it seems that there was no sufficient period of time within
which appellant was able to reflect upon the grave consequences
of his evil intent. Evident premeditation could not, therefore,
aggravate his commission of the offense.
Voluntary Surrender
For voluntary surrender to be appreciated as a mitigating
circumstance, the following requisites must concur: (1) the
offender has not been actually arrested, (2) the offender
surrendered to a person in authority, and (3) the surrender was
voluntary. 31 If the only reason for the supposed surrender is to
ensure the safety of the accused whose arrest is inevitable, the
surrender is not spontaneous and hence not voluntary. 32
According to appellant himself, when the police came to his
house the morning after the incident, he completely denied any
knowledge of the murder incident. He learned that he was a
suspect when he was in Tagbilaran City later that morning to
fetch his wife, who told him that the police had come looking for
him at her place of work. It was only when he got back to
Balilihan, Bohol that he proceeded to the police station "to clear
his name." But being the prime suspect, he was instead
incarcerated. 33
Appellant's actions after the incident are not marks of voluntary
surrender. Denying to the police any personal knowledge of the
crime, he even tried to distance himself from the place of the
incident by going to Tagbilaran City. It was only when he learned
that he had become a suspect and that the police were looking
for him even in Tagbilaran that he finally went to the police
station, but only "to clear his name." Such acts do not show any
intent to surrender unconditionally to the authorities.
Intoxication
Ordinarily, intoxication may be considered either aggravating or
mitigating, depending upon the circumstances attending the
commission of the crime. Intoxication has the effect of decreasing
the penalty, if it is not habitual or subsequent to the plan to
commit the contemplated crime; on the other hand, when it is
habitual or intentional, it is considered an aggravating
circumstance. 34 A person pleading intoxication to mitigate
penalty must present proof of having taken a quantity of alcoholic
beverage prior to the commission of the crime, sufficient to
produce the effect of obfuscating reason. At the same time, that
person must show proof of not being a habitual drinker and not
taking the alcoholic drink with the intention to reinforce his
resolve to commit the crime. 35
Appellant belatedly pleads in his Reply Brief that intoxication
should mitigate his penalty. He relies merely on the prosecution's
narration of facts which supposedly "indicate that the accused-
appellant himself was intoxicated at the moment of the attack,"
and "there was no evidence presented that [his] state of
intoxication was 'not habitual or subsequent to the plan to commit
said felony.'"
Appellant cannot simply rely on those statements of the
prosecution. He himself must present convincing proof of the
nature and the effect of his intoxication. What appears
undisputed in the records, however, is that he had a glass of beer
prior to the murder incident. Under normal circumstances, a glass
of beer is not so intoxicating as to diminish a man's rational
capacity. It was not proven at all that such amount of alcohol
blurred his reason. This element is essential for intoxication to be
considered mitigating.
Third Issue:
Constitutionality of the Reimposition of
the Death Penalty on the Crime of Murder
Appellant additionally avers that RA 7659, insofar as it classifies
murder as a heinous crime and metes the death penalty therefor,
is unconstitutional.
The Court does not find the resolution of this issue the very lis
mota of the case. 36 Absent any aggravating circumstance in
appellant's commission of murder, the death penalty as
prescribed under RA 7659 cannot be imposed upon him. In other
words, the determination of the constitutional question is not
essential to the disposition of his appeal. "It is a well established
rule that a court should not pass upon a constitutional question
and decide a law [or part of it] to be unconstitutional or invalid,
unless such question is raised by the parties, and that when it is
raised, if the record also presents some other ground upon which
the court may rest its judgment, that course will be adopted and
the constitutional question will be left for consideration until a
case arises in which a decision upon such question will be
unavoidable." 37
Proper Penalty
The Revised Penal Code, as amended by RA 7659, prescribes
the penalty range of "reclusion perpetua to death" on the crime of
murder. 38 Where the law prescribes a penalty composed of two
indivisible penalties, the applicable rules are as follows: 39
Art. 63. Rules for the application of indivisible
penalties. — In all cases in which the law
prescribes a single indivisible penalty, it shall be
applied by the courts regardless of any mitigating or
aggravating circumstances that have attended the
commission of the deed.
 In all cases in which the law prescribes a penalty
composed of two indivisible penalties, the following
rules shall be observed in the application thereof:
1. When in the commission of the deed there is
present only one aggravating circumstance, the
greater penalty shall be prescribed.
2. When there are neither mitigating nor
aggravating circumstances in the commission of the
deed, the lesser penalty shall be applied.
3. When the commission of the act is attended by
some mitigating circumstances and there is no
aggravating circumstance, the lesser penalty shall
be applied.
4. When both mitigating and aggravating
circumstances attended the commission of the act,
the courts shall reasonably allow them to offset one
another in consideration of their number and
importance, for the purpose of applying the penalty
in accordance with the preceding rules, according
to the result of such compensation.
As discussed earlier, no aggravating or mitigating circumstance
attended the commission of the offense. Hence, pursuant to Item
2 above, the lesser penalty — reclusion perpetua — should be
imposed upon the appellant. 40
Damages
While the appellee does not question the non-award by the trial
court of damages in favor of the heirs of appellant's victim, the
Court takes issue thereon, in the exercise of its power in criminal
appeals to review and correct such errors as may be found in the
appealed judgment even if they have not been raised. 41
The victim's wife submitted and affirmed in the trial court the truth
of the actual expenses incurred by the family during the wake
and the burial of the victim, as well the prayer ceremonies for
him. 42 Consistent with jurisprudence, the Court gives credence to
those expenses that appear to have been genuinely incurred in
connection with the death, the wake and the burial of the
victim. 43 Based on the evidence, these expenses add up to
P4,600.
WHEREFORE, the Decision appealed from is hereby
AFFIRMED, with the MODIFICATION that Appellant Joel Pinca y
Huarde shall serve the penalty of reclusion perpetua, not death,
and shall pay the heirs of Conrado Angcahan P50,000 as
indemnity ex delicto and P4,600 as actual damages. No
pronouncement as to costs.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Quisumbing, Purisima, Pardo, Buena, Gonzaga-
Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.
People vs. Amaguin G.R. Nos. 54344-45; 229 SCRA 166
January 10, 1994
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. Nos. 54344-45 January 10, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
WILLIE AMAGUIN, GILDO AMAGUIN AND CELSO
AMAGUIN, accused.
WILLIE AMAGUIN AND GILDO AMAGUIN, accused-appellants.
The Solicitor General for plaintiff-appellee.
Sixto P. Demaisip for accused-appellants.
BELLOSILLO, J.:
The coup de main on the Oro brood sent two brothers to the
mortuary and a third to medical care. The bloodbath resulted in
the brothers Willie, Gildo and Celso, all surnamed Amaguin,
being charged with the murder of the Oro brothers Pacifico and
Diosdado. Willie and Gildo went through trial while Celso to this
date remains a fugitive.
The culpability of the Amaguin brothers was recounted by
Hernando Oro, a younger brother of Pacifico and Diosdado.
Hernando narrated that in the afternoon of 24 May 1977, he and
his brothers Diosdado and Danilo, brother-in-law Rafael
Candelaria, an first cousin Sergio Argonzola were invited by their
eldest brother Pacifico to the latter's house in the interior of
Divinagracia Street, La Paz, Iloilo City, for a small gathering to
celebrate the town fiesta.1 At about five o'clock in the afternoon,
after partaking of the meager preparations put together by
Pacifico, he (Hernando) and his companions decided to leave.
They were accompanied by their host to the plaza where they
could get a ride.
On their way, while traversing Divinagracia Street, Pacifico was
called by accused Celso Amaguin : "Pare, come here." But
Pacifico answered : "Pare, not yet because I have to conduct my
guests first." Immediately, Celso, with a butcher's knife in hand,
rushed towards Pacifico. Gildo, Celso's younger brother, with a
knife tucked to his waist, followed with a slingshot known as
"Indian pana" or "Indian target". While Gildo aimed the dart from
his slingshot at Danilo, which hit the latter on the chest, Celso
hacked Pacifico. Gildo then stabbed Diosdado with a knife.
Thereafter, Willie, the eldest of the Amaguin brothers, appeared
with a handgun and successively shot the brothers Pacifico,
Diosdado and the fleeing Danilo. Diosdado, own kneeling,
gasping for breath and pleading for his life, was again shot by
Willie who next fired anew at Pacifico. Meanwhile, Gildo and
Celso repeatedly stabbed Pacifico who already lying prostrate
and defenseless.2
Danilo Oro, the youngest of the Oros, likewise testified. He said
that at around five o'clock in the afternoon of 24 May 1977, while
walking along Divinagracia Street on their way to the plaza for
ride home with his three brothers and two others, they were
waylaid by Celso, Willie and Gildo, their cousin Danny, all
surnamed Amaguin, and several others. Celso placed an arm on
the shoulder of Pacifico and stabbed him with a knife. 3 Then
there was a clash between the two groups. In a split second, he
(Danilo) was hit on the left chest by a dart from the slingshot of
Gildo whom he saw aiming at him. He (Danilo) pulled the dart
from his chest and ran away but was hit on the lips by a bullet.
Then he was pushed by Hernando to seek cover.4
Rafael Candelaria, a brother-in-law of the Oros, also took the
witness stand. His version was that while he, his brothers-in-law
and one Sergio Argonzola were walking along Divinagracia
Street that afternoon, two men approached them. Without any
provocation, one suddenly stabbed him. After being hit on the left
arm, he immediately fled to the plaza where he flagged down a
passing cab to take him to the hospital. He did not see what
happened next to his companions.5
The defense however maintains that it was the Oro brothers who
started the fight. Accused Gildo Amaguin recounted that on 24
May 1977, at about five o'clock in the afternoon, Pacifico with five
others went to their house in Divinagracia Street, La Paz, Iloilo
City, and approached his brother Celso, who was waiting for his
wife at the foot of the stairs. While Pacifico was talking to Celso,
a companion of Pacifico came forward, held Celso by the
shoulder and said : "This is the bravest man in Divinagracia
Street, the Amaguin." Meanwhile, another companion of Pacifico
gave Celso a flying kick that sent him reeling. Gildo then went
down the house shouting : "Don't fight." However, the attackers
drew their knives and slingshots. In return, Celso pulled out his
knife. Since one of the companions of Pacifico lunged at him,
Gildo retreated to the other side of the road and threw stones at
his attackers.
Meanwhile, he saw his cousin Danny hit Danilo Oro with a dart
from a slingshot. But later Danny himself was stabbed from
behind by one of Pacifico's companions. Then Ernie Ortigas, a
guest of Celso, emerged from the Amaguin residence holding a
revolver. Ernie initially fired three warning shots, after which he
successively shot Pacifico and a person who tried to stab the
former as well as an identified companion of Pacifico. Later, both
Ernie Ortigas and Celso Amaguin escaped towards the railway
tracks.6 The following day, he was brought by his uncle to the PC
authorities in Fort San Pedro for "safe-keeping" and turned over
to the local police after a week.
The story of Gildo was confirmed by Vicente Belicano7 and Nilda
Tagnong,8 long-time residents of Divinagracia Street, and Nenita
Amaguin, mother of the accused brothers, who even affirmed that
her son Celso was indeed troublesome,9 but added that Willie
"never had any brush with the
law." 10
On his part, Willie related that he was in the house of his uncle
along Divinagracia Street that afternoon drinking with some
friends. He left the group after hearing some explosions coming
from the direction of his mother's house and then seeing his
cousin Danny, with a stab wound at the back, being taken by two
policemen, and his wounded brother Gildo running towards the
plaza. Thus, he went to his mother's residence to find out what
happened. But when he got there, the incident had already
ended. As a consequence, he was told by his mother to look for
his two brothers who were wounded in the fight and to take them
to the hospital.11 He turned himself in after five days, upon
learning that law enforcers were looking for him.
Ulpiano Vencer, Rogelio de la Paz and Pat Jereos all confirmed
that accused Willie only left their gathering after the explosions
were heard, and only after seeing his wounded brother Gildo and
his cousin Danny, who was in the company of two policemen,
pass by.
Perla Belleza, a vegetable vendor in the La Paz Public Market,
also testified that after hearing six explosions, she saw an
unidentified man with a revolver running away from the scene of
the crime, followed by accused Celso who was holding a knife.
She was certain that the unidentified man was not accused Willie
as the latter was very well known to her, she being a former
neighbor of the Amaguins. 12
Dr. Tito Doromal, Asst. Medico-Legal Officer, Iloilo Metropolitan
District Command, INP, conducted an autopsy on Pacifico and
Diosdado. He declared that out of the 15 stab wounds and one
gunshot wound Pacifico sustained, five of the stab wounds were
fatal. With regard to Diosdado, four (4) stab wounds, out of the
ten (10), and the lone bullet he had sustained were considered
fatal. 13
After a joint trial, and finding the version of the prosecution to be
more credible, the then Court of First Instance of Iloilo, Br.
II, 14 found the accused Gildo Amaguin, also known as "Tigib,"
guilty beyond reasonable doubt of the crime of Murder, and . . .
sentenced (him) to Reclusion Perpetua, both in Criminal Cases
Nos. 8041 and 8042, together with all the accessory penalties,
and to pay the costs."
As regards Willie Amaguin alias "Tikboy," the trial court found him
guilty "as accomplice in both Criminal Cases 8041 and 8042, and
. . . sentenced (him) to an indeterminate penalty of Seventeen
(17) Years, Four (4) Months, and One (1) Day to Twenty (20)
Years each in said cases together with all the accessory
penalties, and to pay the costs."
Both accused were "further sentenced to indemnify the heirs of
the late Pacifico Oro and Diosdado Oro, jointly and severally in
the total sum of P24,000.00 as death compensation; P20,000.00
(as) moral damages; P10,000.00 (as) exemplary damages; and
P5,000.00 for burial expenses, in both Criminal cases nos. 8041
and 8042."
In this appeal, accused Willie Amaguin and Gildo Amaguin claim
that the court a quo erred: (a) in categorizing the offense/s as
murder; (b) in finding Willie Amaguin to be the person involved in
the incident; (c) in holding that there was conspiracy between the
brothers Gildo and Celso Amaguin (the latter is at large); (d) in
finding Gildo Amaguin to be armed with a knife and an Indian
target when he was only armed with stones; and, (e) even
assuming the accused to be guilty, in not holding them
responsible for their individual acts, and in not appreciating the
mitigating circumstance of voluntary surrender. 15
Before disposing of the other issues raised by appellants, we
resolve the second and fourth assigned errors first to determine
which of the two conflicting versions of the incident deserves
credence. Their resolution rests upon the credibility of the
witnesses who have come forward, a matter addressed to the
sound judgment of the trial court which is in a better position to
decide them, it having heard the witnesses and observed their
deportment and manner of testifying during the trial.
Consequently, the assessment of the trial judge is usually
received with respect, if not conclusiveness, on appeal unless
there is a showing of arbitrariness. Always, this has been the
familiar rule. 16
In the instant case, the trial court has accepted as credible the
testimonies of Hernando and Danilo Oro who positively identified
accused Celso and Gildo Amaguin as having started the assault
on the Oro brothers with the use of a knife and an "Indian pana,"
and accused Willie Amaguin as the gunwielder who shot the
brothers Pacifico, Diosdado and Danilo during the fray. We see
no reason to disregard the assessment. We simply cannot set
aside the factual findings of the trial court absent any showing of
capriciousness on its part.
The defense belittles the testimony of Hernando Oro pointing to
accused Willie Amaguin as the gunman as it stands "singly and
alone," in contrast to the declaration of the defense witnesses
exonerating Willie and Gildo. While the defense may have
presented a number of witnesses who, as the trial court puts it,
"virtually 'sang' in a chorus that the killers (Celso and Danny
Amaguin and a certain Ernie Ortigas) not the two accused herein
(Willie and Gildo
Amaguin)," 17 still the trial judge had the opportunity, as well as
the right and responsibility, to assess their credibility — just like
all other witnesses. After all, there is no law which requires that
the testimony of a single witness needs corroboration except
when the law so expressly requires. As it is often said, witnesses
are to be weighed, not numbered. If credible and positive, the
testimony of a single witness is sufficient to convict. 18 Indeed the
determination of the credibility of witnesses is the trial court's
domain, hence, we respect its factual findings.
For, even the respective defenses of the accused, i.e., accused
Willie Amaguin's alibi that he did not participate in the fray and
that he was in the nearby house of his uncle drinking with his
friends, and accused Gildo Amaguin's denial that he was
unarmed but later forced to hurl stones to defend himself, are
without sound basis. Alibi is one of the weakest defenses that
can be resorted to especially where there is direct testimony of
an eyewitness, not only because it is inherently weak and
unreliable but also because of the ease of its fabrication and the
difficulty of checking and rebutting it.19 Besides, alibi to be
believed must be supported by the physical impossibility of the
accused to have been at the scene of the crime. 20 And as in an
alibi, a denial, if unsubstantiated by clear and convincing
evidence, is a negative and self-serving evidence which deserves
no weight in law and cannot be given greater evidentiary value
over the testimony of credible witnesses who testify on affirmative
matters.21 Thus, as between a mere denial of the accused and
the positive identification and detailed declarations of the
prosecution witnesses, the trial court committed no error in
according heavier weight to the latter. 22
Hence, this version of the prosecution prevails: Celso and Gildo,
together with others, attacked the Oros. During the fray, Gildo
was armed with a knife and an "Indian target." And just as they
were about to finish off the Oro brothers, Willie, the eldest of the
Amaguins, appeared with a revolver and delivered the coup de
grace.
The factual setting having been settled, we now go to the first
assigned error , i.e., thwt the lower court erred in categorizing the
offense as murder there being no treachery since "the
combatants were face to face" and "[c]onfronting each other
frontally . . . that each will know each other's next
move." 23 Except for appellants' premise, the argument has merit.
The killing of Pacifico and Diosdado cannot be qualified by
treachery.
While we have already ruled that even a frontal attack can be
treacherous, as when it is sudden and unexpected and the victim
is unarmed, 24 here, it appears that the aggressors did not
employ means tending directly and specially to ensure the
execution of the crime without risk to themselves arising from the
defense which the offended parties might take.
It must be noted that the assailants attacked a group of six (6)
individuals who could have been armed.
It is highly probable that at least one of those attacked could offer
resistance and could put the lives of the aggressors in danger, as
what indeed happened when accused-appellant Gildo Amaguin
and his cousin Danny suffered injuries as a result of the fight
which, from all indications, ended in a free-for-all. That Pacifico
sustained 15 stab wounds and a gunshot wound, and Diosdado,
ten stab wounds and a bullet wound, does not necessarily mean
that treachery attended the killings. As already adverted to, for
treachery to be appreciated, the offender must employ means,
methods, or forms in the commission of the crime which tend
directly and specially to insure its execution without risk to himself
arising from the defense which the offended party might
take.25 Here, there is serious doubt.
On the third assigned error, i.e., that there was conspiracy
between Gildo and Celso, who remains at large, the evidence
shows how Celso and Gildo simultanously assaulted the Oro
brothers. While Celso lunged at Pacifico, Gildo aimed his
slingshot at Danilo who was hit by its dart, and immediately
attacked Pacifico with a knife. Under the circumstances, it is
evident that Gildo and Celso acted in unison and cooperated with
each other toward the accomplishment of a common felonious
objective. Certainly, there was conspiracy between the brothers
Gildo and Celso, and it was not necessary to prove a previous
agreement to commit the crime since from their overt acts, it was
clear that they acted in concert in the pursuit of their unlawful
design.
However, it was error to rule that accused Willie was an
accomplice to his brothers. There being no sufficient evidence to
link him to the conspiracy, he should be liable for the natural and
logical consequence of his own felonious acts. Hence, we take
exception to the conclusion of the trial court that Pacifico and
Diosdado did not die due to the gunshot wounds inflicted by
Willie.
Dr. Tito Doromal, the medico-legal officer who autopsied the
bodies of Pacifico and Diosdado, testified that while the gunshot
wound sustained by Pacifico was not fatal, that suffered by
Diosdado was fatal.26
Consequently, in Crim. Case No. 8041, where Willie mortally shot
Diosdado, he should be liable for homicide. And, since Diosdado
was already on bended knees and pleading for his life when
fatally shot, the aggravating circumstance of the abuse of
superior strength, although not alleged in the information but
proven during the trial, may be considered as a generic
aggravating circumstance. 27
In Crim. Case No. 8042, where Willie shot Pacifico while lying
prostrate already with numerous fatal stab wounds, Willie should
be liable for frustrated homicide it appearing that the gunshot
wound was not fatal although his intent to kill was evident.
Likewise, the aggravating circumstance of abuse of superior
strength may be appreciated as a generic aggravating
circumstance.
Finally, we agree with accused-appellants' view that voluntary
surrender should be appreciated in their favor. While it may have
taken both Willie and Gildo a week before turning themselves in,
the fact is, they voluntarily surrendered to the police authorities
before arrest could be effected. For voluntary surrender to be
appreciated as a mitigating circumstance, the following elements
must be present: (a) the offender has not been actually arrested;
(b) the offender surrendered himself to a person in authority; and
(c) the surrender must be voluntary. 28 All these requisites appear
to have attended their surrender.
Now, we turn to the penalties.
In Crim. Cases Nos. 8041 and 8042, Gildo Amaguin is guilty of
two (2) separate crimes of homicide for the death of Diosdado
and Pacifico, respectively. The penalty prescribed by law for
homicide is reclusion
temporal. 29 Applying the Indeterminate Sentence Law, and
appreciating the mitigating circumstance of voluntary surrender
with no aggravating circumstance, the maximum penalty to be
imposed on accused Gildo Amaguin for each of the homicide he
has committed, which he must serve successively, should be
taken from the minimum of the imposable penalty, which
is reclusion temporal the range of the minimum period of which is
twelve (12) years and one (1) day to fourteen (14) years and
eight (8) months, while the minimum should be taken from the
penalty next lower in degree, which is prision mayor the full range
of which is six (6) years and one (1) day to twelve (12) years, in
any of its periods.
In Crim. case No. 8041, Willie Amaguin is guilty of homicide
aggravated by abuse of superior strength but offset by the
mitigating circumstance of voluntary surrender, and in Crim. Case
No. 8042, he is guilty of frustrated homicide likewise aggravated
by abuse of superior strength but offset by voluntary surrender.
For the homicide, applying the Indeterminate Sentence Law and
taking into account the mitigating circumstance of voluntary
surrender which, as earlier mentioned, offsets the aggravating
circumstance of abuse of superior strength, the maximum penalty
should be taken from the medium of the imposable penalty,
which is reclusion temporal the range of the medium period of
which is fourteen (14) years eight (8) months and one (1) day to
seventeen (17) years and four (4) months, while the minimum
should be taken from the penalty next lower in degree which
is prision mayor in any of its periods.
For the frustrated homicide, the imposable penalty is one degree
lower than the penalty prescribed by law for the consummated
offense, and one degree lower than reclusion temporal is prision
mayor. Applying the Indeterminate Sentence Law and the
attending circumstances which offset each other, the maximum
penalty to be imposed should be taken from the medium of the
imposable penalty, which is prision mayor the range of the
medium period of which is eight (8) years and one (1) day to ten
(10) years, while the minimum should be taken from the penalty
next lower in degree, which is prision correccional the full range
of which is six (6) months and one (1) day to six (6) years, in any
of its periods.
WHEREFORE, the decision of the court a quo finding the
accused-appellants WILLIE AMAGUIN and GILDO AMAGUIN
guilty in Crim. Cases Nos. 8041 and 8042 is MODIFIED as
follows:
(a) accused-appellant WILLIE AMAGUIN is found guilty of
HOMICIDE in Crim. Case No. 8041 and is sentenced to six (6)
years, two (2) months and one (1) day of prision mayor minimum
as minimum, to fourteen (14) years, eight (8) months and twenty
(20) days of reclusion temporal medium as maximum, and of
FRUSTRATED HOMICIDE in Crim. Case No. 8042 and is
sentenced to six (6) months and twenty (20) days of prision
correccional minimum as minimum, to eight (8) years, four (4)
months and ten (10) days of prision mayor as maximum, to be
served successively;.

(b) accused-appellant GILDO AMAGUIN is found guilty of two (2)

separate crimes of HOMICIDE in Crim. Cases Nos. 8041 and
8042 and is sentenced to six (6) years two (2) months and one
(1) day of prision mayor minimum as minimum, to twelve (12)
years, six (6) months and ten (10) days of reclusion
temporal minimum as maximum, for each homicide, to be served
successively;

(c) in Crim. Case No. 8041, accused-appellants WILLIE

AMAGUIN and GILDO AMAGUIN are declared jointly and
severally liable to the heirs of Diosdado Oro for P50,000.00 as
civil indemnity consistent with prevailing jurisprudence; and,

(d) in Crim. case No. 8042, accused-appellant GILDO AMAGUIN

is liable to the heirs of Pacifico Oro for P50,000.00 as civil
indemnity.

Costs against accused-appellants WILLIE AMAGUIN and GILDO

AMAGUIN in both cases.

SO ORDERED.

Cruz, Davide, Jr. and Quiason, JJ., concur.

People vs. Dulos G.R. No. 107328; 237 SCRA 141 evident premeditation and with intent to kill, did then
September 26, 1994 and there willfully, unlawfully and feloniously attack,
assault and shoot with firearm one Apolinario
Republic of the Philippines Tamse, thereby inflicting upon the latter mortal
SUPREME COURT wounds which caused his death.
Manila
CONTRARY TO LAW. 1
FIRST DIVISION
On arraignment held on March 9, 1988, accused pleaded not
guilty to the offense charged. 2

G.R. No. 107328 September 26, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EFREN DULOS, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Midpantao L. Adil for accused-appellant.
After examining and assessing the evidence respectively
adduced by the prosecution and the defense, the trial court found
Efren Dulos guilty beyond reasonable doubt of the crime of
murder and was accordingly adjudged as follows:
WHEREFORE, the Court finds that accused Efren
Dulos guilty beyond reasonable doubt of the crime
of Murder committed with treachery, as charged in
the Information and hereby sentences him to suffer
the penalty of Reclusion Perpetua and to indemnify
the heirs of the victim the amount of P50,000.00.

KAPUNAN, J.: SO ORDERED. 3

In Criminal Case No. 1114 of the Regional Trial Court of
Cotabato City, Branch 13, Efren Dulos was charged with murder
allegedly committed in this wise:
That on or about March 15, 1987, in the City of
Cotabato, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused,
armed with a caliber. 45 pistol, with treachery and
The operative facts of this case are as follows:
At around ten o'clock in the evening of March 15, 1987, Susan
Almazar and Alice Tipudan, both professional entertainers, were
sitting at the lobby of the New Imperial Hotel in Cotabato City,
waiting for prospective clients. 4 Moments later, a certain Mr.
Gara, a Military Police assigned at the said hotel as watchman,
approached them and told them that the accused-appellant,
Efren Dulos, had some male guests who wishes to be
entertained. 5 Thereafter, they were introduced to herein
accused-appellant. Both parties agreed to a charge of P100.00
each for Susan and Alice as fee for their services. 6
The parties then proceeded to the Sampaguita Disco located at
the Old Imperial Hotel to join the accused-appellant's
guests. 7 Alice Tipudan left early and decided to wait for Susan
Almazar at the lobby of the New Imperial Hotel. 8
Apparently, Susan, who stayed until midnight to entertain
accused-appellant, decided to check in with one of the latter's
guests at the upper floor of the disco house for an additional fee
of P500.00 9 When she received the money, she changed her
mind, thus, spawning a fight with her customer. 10 When Alice
learned of the disagreement, she requested MP Gara to
intervene and buy
peace. 11
In the meantime, Susan came down to the lobby of the Imperial
Hotel to meet her boyfriend, Apolinario "Paul" Tamse 12 who was
waiting for her. Upon hearing about the reneged deal, the irate
accused-appellant confronted Susan and Paul. 13 Paul
apologized to the accused-appellant saying that his girlfriend
does not accept intimate dates. 14 Then, they, together with Alice
and another female companion, proceeded to go home to the
Federal Lodging House which was only a few meters away from
the hotel. 15
Accused-appellant, angered by the aforesaid incident, quickly
followed the group. 16 Upon noticing the accused-appellant who
then drew his .45 caliber pistol, Alice shouted a warning of the
threat to Susan and Paul, who were walking ahead. 17 They tried
to run but they were overtaken by the accused-
appellant. 18 Accused-appellant demanded the return of his
money. Susan handed the P100.00 to accused-appellant, at the
same time shielding Paul with her body. 19 She denied having
received P500.00 from accused-appellant's guest lest her
boyfriend would find out that she agreed to check in with a
customer. 20 Susan pleaded with the latter's gun still pointed
towards them, she tried to grapple with him for possession of the
same 21 but she was violently pushed. 22 She fell to the
ground. 23 At this juncture, Paul pleaded for mercy by kneeling
down and raising both his hands up. 24 His plea fell on deaf ears
as accused-appellant fired his gun hitting Paul on the left
breast. 25 Paul fell face down to the ground. Accused-appellant
then fired another shot at Paul's back, killing him on the spot. 26
The autopsy conducted on the victim revealed the following
findings, viz:
1. Wound with smooth edges at the chest along the
left anterior clavicular line at the level of the 4th
intercostal space;
2. Wound with rough edges just above the left
nipple;
3. Wound with smooth edges at the left palm;
4. Wound with rough edges at the posterior portion
of the base of the left thumb; and
5. Wound with smooth edges at the post axillary
line 3 inches below the armpit.
CAUSE OF DEATH:
 Cardio-Respiratory Arrest Secondary to Massive
Hemorrhage due to gunshot wounds. 27
Accordingly, accused-appellant was charged with murder. After
arraignment where he pleaded not guilty, accused-appellant was
tried and found guilty of the crime charged as previously stated.
Now before us on appeal, accused-appellant raises the following
assignment of errors, to wit:
I. THE TRIAL COURT ERRED IN ASSUMING
JURISDICTION OVER PERSON OF APPELLANT,
A MEMBER OF THE AFP AT THE TIME OF THE
INCIDENT;
II. THE TRIAL COURT ERRED IN CONVICTING
APPELLANT OF MURDER AND NOT HOMICIDE
AND SENTENCING HIM TO RECLUSION
PERPETUA DESPITE THE SUDDENNESS OF
KILLING AND PROOFS OF UNLAWFUL
AGGRESSION ON THE PART OF THE
DECEASED AND LACK OF SUFFICIENT
PROVOCATION ON THE PART OF APPELLANT
AND THE MITIGATING CIRCUMSTANCE OF
VOLUNTARY SURRENDER; and
III. THE TRIAL COURT ERRED IN NOT
CONSIDERING SELF-DEFENSE OR AT LEAST
INCOMPLETE SELF-DEFENSE IN FAVOR OF
APPELLANT.28
The appeal lacks merit.
In his first assigned error, accused-appellant contends that the
trial court did not acquired jurisdiction to try him, hence, the
decision rendered against him should be declared null and void.
He vigorously claims that as a member of the 12th MSSU AFP
(Military Southern Support Command, Armed Forces of the
Philippines), he should be tried by the military courts pursuant to
Presidential Decree No. 1850, and not by civil courts.
Section 1 of Presidential Decree No. 1850, as amended by
Presidential Decree No. 1952, reads in full:
Sec. 1. Court-Martial Jurisdiction over Integrated
National Police and Members of the Armed Forces.
— Any provision of law to the contrary
notwithstanding — (a) uniformed members of the
Integrated National Police who commit any crime or
offense cognizable by the civil courts shall
henceforth be exclusively tried by courts-martial
pursuant to and in accordance with Commonwealth
Act No. 408, as amended, otherwise known as the
Articles of War; (b) all persons subject to military
law under Article 2 of the aforecited Articles of War
who commit any crime or offense shall be
exclusively tried by courts-martial or their case
disposed of under the said Articles of
War; Provided, that, in either of the aforementioned
situations, the case shall be disposed of or tried by
the proper civil or judicial authorities when court-
martial jurisdiction over the offense has prescribed
under Article 38 of Commonwealth Act Numbered
408, as amended, or court-martial jurisdiction over
the person of the accused military or Integrated
National Police personnel can no longer be
exercised by virtue of their separation from the
 active service without jurisdiction having duly
attached before hand unless otherwise provided by
law: Provided further, that the president may, in the
interest of justice order or direct, at any time before
arraignment, that a particular case be tried by the
appropriate civil court. (Emphasis ours)
While it is true that the foregoing provision vests exclusively upon
courts-martial trial of criminal offenses committed by members of
the Armed Forces of the Philippines, whether or not done in the
actual performance of their official duties, accused-appellant’s
case falls under the exception contained in the proviso of the
section which allows civil courts to assume jurisdiction over
criminal offenses and over the person of the accused where the
latter was discharged from active military service without military
jurisdiction having duly attached on him before his separation.
In the case at bench, accused-appellant himself concedes that he
was readily discharged from active military service as soon as he
was made to answer for the criminal offense without any initiative
on the part of the military to try and prosecute him for the offense
charged. Verily, it was the civil court which first acquired
jurisdiction over his person.
In an attempt to elude civil court jurisdiction, accused-appellant
seeks refuge in the case of Abadilla v. Ramos. 29 Said case,
however, cannot apply here. In Abadilla, Colonel Rolando
Abadilla was dropped from the roll of officers for his alleged
participation in several criminal offenses. Before his separation
from the service, however, Abadilla was subjected to military
investigation, hence, military jurisdiction had fully attached on his
person. In contrast, when accused-appellant was discharged
from the service, no initiatory proceedings nor any investigation
were conducted, consequently, military jurisdiction did not attach
on his person.
Besides, records reveal that the issue of jurisdiction was not
raised by the accused-appellant in the trial court. Such being the
case, raising it at this point would be useless and futile. It is well
settled that when the question of jurisdiction over the person was
not raised in the trial, the same cannot be belatedly raised on
appeal, thus, in People v. Lozano, 30 we held that:
The record shows that the issue of jurisdiction in the
trial court was not raised by the accused-appellant
Lozano, so much so that if the issue be raised at
this point in time it would be useless and futile
because the question of jurisdiction over the person
which was not raised in the trial court cannot be
raised on appeal (Vda. de Alberto v. Court of
Appeals, 173 SCRA 436 [1989]).
Besides, a party is estopped from assailing the
jurisdiction of a court after voluntarily submitting
himself to its jurisdiction (Tejones v. Gironella, 159
SCRA 100 [1988]). Accused-appellant Lozano's
appearance in the arraignment and pleading not
guilty to the crime charged, is an sign that he
voluntarily submitted himself to the jurisdiction of
the court, so that jurisdiction has been acquired by
the court over his person and continues until the
termination of his case.
In the second and third assigned errors, accused-appellant
questions the findings of fact of the court a quo. However, as we
have consistently ruled in a long line of cases, findings of the trial
court as to credibility of witnesses are accorded great weight and
respect by the appellate court. 31 Unless there is a showing that
the trial court had overlooked, misunderstood or misapplied some
fact or circumstance of weight and substance that would have
altered the outcome of the case, the appellate court will not
disturb the factual findings of the lower court. 32
Accused-appellant disputes the trial court finding that the killing
was committed in a treacherous manner. He maintains that the
horizontal trajectory of the bullet wound and the fact the victim
was facing him when the gun was discharged, negate the
existence of treachery.
We are not persuaded.
There is treachery when the victim is shot, albeit frontally, with his
hands raised to show that he would not fight, or because of fright,
or to try to ward off the shots that were to come. 33 This
circumstance constitutes treachery because the victim was
clearly in a defenseless position. In the case at bench, the
prosecution eyewitnesses Susan Almazar and Alice Tipudan,
categorically testified that when the accused-appellant fired his
first shot, Paul Tamse was on his knees with his hands up
pleading for mercy. 34 Evidently, the victim was in a defenseless
position when accused-appellant shot him. While the victim was
already lying prostrate on the ground in prone position, accused-
appellant pumped one more bullet on his back. This constituted
teachery and qualified the offense to murder.
Accused-appellant's lengthy argument on the absence of the
qualifying circumstance of evident premeditation in the
commission of the crime serves no purpose as the trial court
never considered such circumstance against him. In fact, the trial
court declared that the prosecution failed to establish and prove
the existence of the said qualifying circumstance. Thus:
From the facts as determined by the court, the court
is of the view that the prosecution failed to establish
the qualifying circumstance of evident
premeditation’s alleged in the information. It failed
to establish that the criminal act of shooting the
deceased with a handgun was preceded by cool
thought and reflection on the part of the accused to
carry out such a criminal intent to kill within a space
of time sufficient to arrive at a calm judgment. 35
The generic mitigating circumstance of voluntary surrender
cannot be appreciated in accused-appellant's favor. In order that
voluntary surrender may be appreciated, it is necessary that "it
must be spontaneous and made in such manner that it shows the
intent of the accused to surrender unconditionally to the
authorities, either because he acknowledges his guilt or because
he wishes to save them the trouble and expenses necessarily
incurred in his search and capture." 36 Here, there was no
conscious effort on the part of accused-appellant to voluntarily
surrender to the military authorities when he went to Camp
Siongco, Dinaig, Maguindanao after the fate incident. As he
himself admitted in his testimony, he was not placed under
custody by the military authorities as he was free to roam around
as he pleased. He declared:
Q. And no one was guarding you? In
other words you can get in and out at
the BOQ (Bachelor's Officers
Quarters) at your will?
A. Yes, sir.
Q. You could even leave Camp
Siongco at your will?
 A. Yes, sir.37
Verily, he went to the said camp to take up residence, not to
voluntarily surrender to the authorities. Likewise, his claim that he
surrendered his 0.45 caliber pistol to a certain Major Bermones,
one of his guests at the Old Imperial Hotel, is not substantiated
by evidence. Assuming that the gun was surrendered, that fact
cannot be appreciated in his favor. This Court in the case
of People v. Palo 38 held that where an accused merely
surrendering his person to the authorities, there is no voluntary
surrender.
suffered no harm or injury physically. The number and nature of
the wounds inflicted on the victim prove that the attack came from
the accused-appellant and that the victim had no chance to
defend himself as he was not armed at the time of the
incident. 41 In addition, the victim never manifested a posture of
belligerence. When he saw accused-appellant approaching him
menacingly with a gun, Apolinario knelt down, raised his two
hands and pleaded with accused-appellant to spare his life.
All told, we find no cogent reason to reverse the assailed
judgment of conviction.

Finally, accused-appellant avers that he shot Paul Tamse in self- WHEREFORE, premises considered, the decision appealed from
defense. He contends that: is AFFIRMED and the appeal DISMISSED.

(1) There was unjust provocation on the part of the SO ORDERED.

deceased when he refused to refund the P600 of
the accused, and instead he and his girlfriend Cruz, Davide, Jr., Bellosillo and Quiason, JJ., concur.
Susana Almazar tried to run away to avoid returning
said amount;

(2) There was an unlawful aggression on the part of

the deceased when he tried to grab the pistol of the
accused, as earlier stated; and,

(3) There was reasonable necessity of the means

used by the accused to repel or prevent the
aggression.39

This contentions belied by the evidence adduced by the

prosecution. In fact, accused-appellant did not present any
evidence to sustain his plea of self-defense. Not only were the
elements of self-defense absent, but the claim is likewise
negated by the physical evidence. 40 The accused-appellant
Andrada vs. People G.R. No. 135222; 452 SCRA 685
March 04, 2005
Republic of the Philippines
SUPREME COURT
THIRD DIVISION
G.R. No. 135222. March 04, 2005
PETER ANDRADA, Petitioners,
vs.
THE PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
Before us is a petition for review on certiorari filed by Peter
Andrada, petitioner, assailing the Decision1 of the Court of
Appeals dated September 18, 1997 in CA-G.R. CR No. 15851
and its Resolution2 dated August 13, 1998.
In an Information dated January 7, 1987, the Office of the City
Prosecutor of Baguio City charged petitioner with frustrated
murder committed as follows:
That on or about the 24th day of September 1986, in the City of
Baguio, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused with intent to kill, with evident
premeditation and with treachery, did then and there willfully,
unlawfully, and feloniously attack, assault and hack one
ARSENIO UGERIO on the head twice with a bolo thereby
inflicting upon latter: hacking wound, head, resulting in 1) skull
and scalp avulsion vertex; 2) depressed comminuted skull
fracture, right parieto occipital with significant brain laceration;
operation done; craniectomy; vertex debridement; craniectomy;
right parieto occipital; dural repair; debridement, thus performing
all the acts of execution which would produce the crime of Murder
as a consequence thereof, but nevertheless, the felony was not
consummated by reason of causes independent of the will of the
accused, that is, by the timely medical attendance extended to
Arsenio Ugerio which prevented his death.
CONTRARY TO LAW.3
When arraigned on February 9, 1987, petitioner, with the
assistance of counsel de parte, pleaded not guilty to the crime
charged. The hearing of the case ensued.
Evidence for the prosecution shows that on September 23, 1986,
at around 11:30 in the evening, T/Sgt. Teodolfo Sumabong, of
the defunct Philippine Constabulary (PC), was resting in the PC
barracks at Camp Dado Dangwa, La Trinidad, Benguet when one
Rommel Alcate called up requesting police assistance. Alcate
claimed that a group of persons was suspiciously roaming around
his boarding house in Ferguson Street, Baguio City.
Sgt. Sumabong and two of his companions, Sgt. Gaces and Cpl.
Arsenio Ugerio, went to Alcete’s boarding house, arriving there
past midnight. However, according to Alcate, the suspicious
persons have left.
On their way back to the camp at around 1:15 in the morning, the
group dropped by Morlow’s Restaurant, Bokawkan Street, Baguio
City, for a snack. They ordered coffee and sandwiches.
While they were waiting to be served, a woman passed by their
table. While Cpl. Ugerio was talking to her, a man, later identified
as Peter Andrada, herein petitioner, approached the former and
scolded him. Sgt. Sumabong, identifying himself as a PC non-
commissioned officer, advised petitioner to pay his bill and go
home as he was apparently drunk.
Petitioner heeded Sgt. Sumabong’s advice for he paid his bill and
left the restaurant with his companions. While Sgt. Sumabong
was paying his bill, he heard Cpl. Ugerio, seated about a meter
away, moaning in pain. When Sgt. Sumabong turned around, he
saw Cpl. Ugerio sprawled on the floor. Petitioner was hacking
him on the head with a bolo. Sgt. Sumabong approached them
but petitioner ran away, followed by a companion. Sgt.
Sumabong chased them but to no avail.
Upon Sgt. Sumabong’s instruction, Sgt. Gaces brought Cpl.
Ugerio, the victim, to the St. Louis University Hospital. Then Sgt.
Sumabong reported the incident to the police station at Camdas
Road and thereafter proceeded to the hospital. When he returned
to the police station, he learned that petitioner was arrested in a
waiting shed at the corner of Camdas Road and Magsaysay
Avenue.
The arresting officers then brought petitioner back to the
restaurant where they recovered the bolo used in hacking the
victim. Witnesses to the incident were interviewed by the police
and they pointed to petitioner as the culprit.
Dr. Francisco Fernandez, a neuro-surgery consultant, found that
the victim suffered two (2) major injuries. The first was a "scalping
avulsion," around 5 centimeters wide, i.e., the chopping off of a
part of the victim’s skull. The second was a depressed fracture,
about 6 centimeters wide, found on the right parieto occipital area
of the skull. Either wound, being fatal, would have caused the
death of the victim had it not been for a timely medical treatment.
After three (3) days, the victim was transferred to the V. Luna
Hospital in Quezon City. Because of the injuries he sustained, he
has remained incapable to remember or recall visual stimuli or
information.
Petitioner interposed self-defense and invoked the mitigating
circumstance of voluntary surrender. His version is that he and
one Romy Ramos were drinking beer with a hospitality girl
named "Liza" inside Morlow’s Restaurant, when three military
men occupied the table next to them. They had pistols tucked in
their waists. Without any warning or provocation, two of the men,
whom he identified as Cpl. Ugerio and Sgt. Sumabong,
approached him, slapped his face several times and pointed their
guns to his head. They cursed him and threatened to summarily
execute him because he was "so boastful." Cpl. Ugerio then
"collared" him and dragged him outside the restaurant, while Sgt.
Sumabing followed. Fearful that he might be killed, petitioner
pulled out his bolo, wrapped in a newspaper, from his waist and
swung it at the two military men. He did not see if he hit any of
them. Then he ran to his house in Camdas Subdivision. He
checked to see if his mother or grandmother was at home so
either of them could assist him in surrendering to the police. But
neither was present. On his way to surrender to the police, he
met his mother accompanied by a policeman. They then
proceeded to the police sub-station at Magsaysay Avenue where
he surrendered.
After hearing, the trial court rendered its Decision, the dispositive
portion of which is quoted below, thus:
WHEREFORE, premises considered, the Court finds the accused
PETER ANDRADA guilty beyond reasonable doubt of the crime
of frustrated murder.
The Court hereby sentences him to suffer the penalty of
imprisonment of 8 years and 20 days as MINIMUM to 14 years,
10 months and 20 days as MAXIMUM; to indemnify the sum of
P3,000.00, representing part of the victim’s expenses for medical
services and medicine, and to pay the costs.
SO ORDERED.4
On appeal, the Court of Appeals affirmed with modification the
trial court’s Decision, thus:
WHEREFORE, THE DECISION APPEALED FROM IS HEREBY
AFFIRMED WITH THE MODIFICATION THAT THE APPELLANT
IS SENTENCED TO AN INDETERMINATE PENALTY OF FOUR
(4) YEARS AND TWO (2) MONTHS OF PRISION
CORRECIONAL, AS MINIMUM, TO EIGHT (8) YEARS AND
TWENTY (20) DAYS OF PRISION MAYOR, AS MAXIMUM.
SO ORDERED.5
The Court of Appeals, in modifying the imposable penalty, found
that petitioner is entitled to the privileged mitigating circumstance
of minority as he was only 17 years, 9 months and 20 days old at
the time of the incident.
Petitioner then filed a motion for reconsideration, but this was
denied by the Appellate Court in its Resolution dated August 13,
1998.
Hence, the instant petition.
The issues for our resolution are: (1) whether petitioner’s right to
due process was violated; (2) whether his plea of self-defense is
in order; (3) whether the crime committed is frustrated murder or
frustrated homicide; and (4) whether he is entitled to any
mitigating circumstance, assuming he is guilty.
On the first issue, petitioner argues that the Court of Appeals
erred in not holding that the trial court violated his constitutional
right to due process. He contends that his counsel:
1. Failed to present all the witnesses who could have testified
that he is innocent of the crime charged;
2. Failed to present the medical certificate showing the injuries
inflicted upon him by the victim;
3. Did not notify him to attend the hearing when Sgt. Sumabong
was cross-examined; and
4. Failed to submit a memorandum.
In sum, petitioner ascribes gross incompetence or gross
negligence to his counsel.
The Office of the Solicitor General (OSG) counters that there was
no violation of petitioner’s right to due process. Petitioner was
represented by counsel of his choice. If the latter’s performance
and competence fell short of petitioner’s expectations, then he
should not blame either the trial court or the Court of Appeals.
In criminal cases, the negligence or incompetence of counsel to
be deemed gross must have prejudiced the constitutional right of
an accused to be heard.6
In the following cases, we held that there has been gross
negligence or incompetence on the part of counsel for the
accused, thus:
In US v. Gimenez,7 we remanded a criminal case for new trial
when counsel for an accused inadvertently substituted a plea of
guilty for an earlier plea of not guilty, thus resulting in the
precipitate conviction of his client.
In Aguilar v. Court of Appeals and People,8 we ordered a
dismissed appeal from a conviction for estafa to be reinstated
after it was shown that the failure to file the appellant’s brief on
time was due to sheer irresponsibility on the part of appellant’s
counsel.
In De Guzman v. Sandiganbayan,9 we remanded the case for
reception of evidence after counsel for the accused filed a
demurrer to the evidence notwithstanding that his motion for
leave of court was denied, thus precluding the accused to
present his evidence.
In Reyes v. Court of Appeals,10 we ordered a new trial after a
showing that counsel for the accused abandoned her without
explanation.
In People v. Bascuiguin,11 we held that the arraignment is not
valid. The accused was not properly represented by counsel de
officio since he merely conferred with his client for a few minutes
and advised him to plead guilty to the crime of rape with
homicide.
None of the foregoing incidents is present in the instant case.
Instead, records show that counsel for petitioner actively
participated in the cross-examination of the witnesses for the
prosecution to test their credibility. At any rate, the fact that he did
not choose to present other witnesses did not affect any of
petitioner’s substantial rights. Besides, said counsel might have
valid reasons why he did not call to the witness stand those
witnesses.
We note that petitioner was present during the hearing. If he
believed that his counsel de parte was not competent, he could
have secured the services of a new counsel. He did not. Having
decided to retain the services of his counsel during the entire
proceedings, petitioner must be deemed bound by any mistake
committed by him. For if an accused feels that his counsel is
inept, he should take action by discharging him earlier, instead of
waiting until an adverse decision is rendered and thereupon
blame his counsel for incompetence.12
The long-standing rule in this jurisdiction is that a client is bound
by the mistakes of his lawyer. Mistakes of attorneys as to the
competency of a witness, the sufficiency, relevancy or irrelevancy
of certain evidence, the proper defense or the burden of proof,
failure to introduce evidence, to summon witnesses, and to argue
the case, unless they prejudice the client and prevent him from
properly presenting his case, do not constitute gross
incompetence or negligence.13
Having found that petitioner’s counsel was not so inept or
motivated by bad faith, or so careless and negligent of his duties
as to seriously prejudice the substantial rights of petitioner or
prevent him from putting up a proper defense, we hold that he is
bound by the decisions of his counsel regarding the conduct of
the case.14
On the second issue, petitioner invokes self-defense. Hence, it is
incumbent upon him to prove by clear and convincing evidence
that he indeed acted in defense of himself. For in invoking self-
defense, the accused admits killing or seriously wounding the
victim and thus, has the burden to justify his act.15 The requisites
of self-defense are: (1) unlawful aggression; (2) reasonable
necessity of the means employed to repel or prevent it; and (3)
lack of sufficient provocation of the part of the person defending
himself.16
We find that the petitioner has not adequately discharged his
burden of proving the elements of self-defense. The trial court
and the Court of Appeals found that at the time he hacked the
victim, the latter was still seated while he (petitioner) was
behind him. Indeed, how could there be an unlawful aggression
on the part of the victim at that instance? Petitioner’s bare
assertions that the victim slapped him, poked a handgun at him,
and threatened to "salvage" him were not duly proved by the
evidence for the defense. Rather, the prosecution established
that it was petitioner who unexpectedly attacked the victim from
behind. Clearly, the aggressor was petitioner. Since the first
element of self-defense is not present here, such defense must
fail.
On the third issue, petitioner contends that assuming he is guilty,
he should only be convicted of frustrated homicide, not frustrated
murder. He insists that treachery was not present. His hacking
the victim was a "spur-of-the-moment" act prompted by self-
preservation.
We are not persuaded. There is alevosia 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 from any defense which the offended party might
make.17 We agree with the lower courts that the petitioner
planned to kill the victim with treachery in mind. At that time, the
victim was seated, having just finished a meal at a late hour. His
back was towards petitioner when the latter, without warning,
hacked him twice on his head with a bolo. The attack was so
sudden and unexpected that the victim had no opportunity either
to avert the attack or to defend himself.
Considering that petitioner had performed all the acts of
execution which would have resulted in the death of the victim,
had it not been for timely medical assistance, a cause not of the
will of the petitioner, and considering further the presence of
treachery, then, the crime committed is frustrated murder, not
frustrated homicide.
On the fourth issue, petitioner insists that the mitigating
circumstance of voluntary surrender should have been
appreciated in his favor.
Evidence for the prosecution shows that petitioner, after attacking
the victim, ran away. He was apprehended by responding police
officers in the waiting shed at the corner of Cambas Road and
Magsaysay Avenue. For voluntary surrender to be appreciated,
the surrender must be spontaneous, made in such a manner
that it shows the interest of the accused to surrender
unconditionally to the authorities, either because he
acknowledges his guilt or wishes to save them the trouble and
expenses that would be necessarily incurred in his search and
capture.18 Here, the surrender was not spontaneous.
Anent the modification of the penalty by the Court of Appeals, the
same is in order.
WHEREFORE, the petition is DENIED. The Decision of the Court
of Appeals dated September 18, 1997 and its Resolution dated
August 13, 1998 in CA-G.R. CR No. 15851 are AFFIRMED.
Costs against petitioner.

SO ORDERED.

Panganiban, (Chairman), Corona, Carpio-Morales, and Garcia,

JJ., concur.
People vs. Crisostomo G.R. No. L-32243; 160 SCRA 47 April
15, 1988
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-32243 April 15, 1988
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EUGENIO CRISOSTOMO, accused-appellant.
The Solicitor General for plaintiff-appellee.
Jose Ma. Abola for accused- appellant.
GANCAYCO, J.:
On Christmas day, December 25, 1967, between 6:00 and 7:00
o' clock in the evening at Sto. Rosario, Hagonoy, Bulacan, while
Eugenio Crisostomo was passing near the house of Romeo
Geronimo, he met the latter and invited him to have a drink in the
place of a friend. Romeo declined the offer. Suddenly Eugenio
rushed towards Romeo who was then standing near a store
facing the street with his back towards Eugenio and shot him with
a .22 caliber revolver at a distance of one (1) meter. The bullet
entered about two (2) inches below the axilla (armpit) and came
out on the right side of the chest about one (1) inch to the
sternum. Romeo fell to the ground mortally wounded while
Eugenio ran away. By-standers who were near the place such as
Delfin Lopez, Ernesto Trillana Apolonio Santos and Manuel
Tamayo and others who were all friends of both the victim and
assailant came to the aid of the fallen victim and brought him to
the Reyes Hospital at the Poblacion of Hagonoy where the doctor
pronounced the victim dead upon arrival. Thus, they brought the
victim's body to his home.
An information for murder was filed by the provincial fiscal in the
Court of First Instance (CFI) of Bulacan against Eugenio
Crisostomo charging him of the crime of murder as follows:
That on or about the 25th day of December, 1967,
in the municipality of Hagonoy, province of Bulacan,
Philippines, and within the jurisdiction of this
Honorable Court, the said accused Eugenio
Crisostomo, armed with a firearm and with intent to
kill one Romeo Felipe Geronimo, did then and there
unlawfully and feloniously, with evident
premeditation and treachery, attack, assault and
shoot the said Romeo Felipe Geronimo with the
firearms he was then provided, hitting the latter on
the chest, causing serious physical injuries thereon,
which directly caused the death of the said Romeo
Felipe Geronimo.
After the arraignment wherein accused entered a plea of not
guilty and again during the trial, the accused signified his
intention to withdraw his plea of not guilty to the charge of murder
and to substitute it with a plea of guilty to a lesser charge of
homicide and prayed that he be allowed to prove the mitigating
circumstances. The same plea was made by the accused after
the prosecution had rested its case but the fiscal did not agree.
Thus the court denied the petition.
A decision was rendered on March 28, 1969 convicting the
accused of the offense charged, the dispositive portion of which
reads as follows:
IN VIEW OF THE FOREGOING
CONSIDERATIONS, the court finds the accused
EUGENIO CRISOSTOMO guilty beyond
reasonable doubt of the crime of MURDER,
punished under Art. 248 of the Revised Penal
Code, without any modifying circumstance and
hereby sentences him to Reclusion Perpetua, with
the accessories of the law: to indemnify the heirs of
the deceased in the sum of TWELVE THOUSAND
PESOS (P12,000.00); and to pay the costs.
Not satisfied therewith the accused now interposed this appeal
alleging that the trial court committed the following assigned
errors:
I
THE LOWER COURT ERRED IN FINDING THAT
DEFENDANT- APPELLANT HAS ADMITTED
HAVING KILLED ROMEO GERONIMO, INSTEAD
OF LIMITING ITS FINDING TO THE TRUE
EXTENT OF HIS ADMISSION.
II
THE LOWER COURT ERRED IN FINDING THAT
THERE IS EVIDENCE BEYOND REASONABLE
DOUBT THAT DEFENDANT-APPELLANT KILLED
ROMEO GERONIMO, INSTEAD OF FINDING
THAT NO EVIDENCE HAD BEEN PRESENTED
AS TO THE ACTUAL CAUSE OF DEATH, THERE
HAVING BEEN NO AUTOPSY PERFORMED ON
THE BODY OF ROMEO GERONIMO.
III
THE LOWER COURT ERRED IN FINDING THAT
DEFENDANT- APPELLANT HAD ACTED WITH
TREACHERY.
IV
THE LOWER COURT ERRED IN NOT FINDING
THAT DEFENDANT- APPELLANT IS ENTITLED
TO THE MITIGATING CIRCUMSTANCE OF
DRUNKENNESS.
V
THE LOWER COURT ERRED IN NOT
APPRECIATING IN FAVOR OF APPELLANT THE
MITIGATING CIRCUMSTANCE OF VOLUNTARY
SURRENDER.
VI
THE LOWER COURT ERRED IN NOT
APPRECIATING DEFENDANT-APPELLANT'S
OFFER TO PLEAD GUILTY TO THE CHARGE OF
 HOMICIDE (THE TRUE CRIME COMMITTED IF
ONE HAD IN FACT BEEN COMMITTED AS A
MITIGATING CIRCUMSTANCE.
VII
THE LOWER COURT ERRED IN NOT CREDITING
DEFENDANT-APPELLANT WITH THE
PRIVILEGED MITIGATING CIRCUMSTANCE OF
PRESENCE OF TWO ORDINARY MITIGATING
CIRCUMSTANCES WITHOUT THE PRESENCE
OF ANY AGGRAVATING CIRCUMSTANCE.
Under the first assigned error appellant claims that the trial court
erred in finding that he admitted having killed the victim.
Testifying in his defense the appellant claims that at the time of
the incident when he saw the victim he played a joke on him by
drawing his gun from his waist and pointing the same to the
victim but the gun suddenly went off, its bullet hitting the victim.
Taken by surprise he fled.
No doubt from the said version of the appellant he effectively
admitted having shot the victim Romeo Geronimo. In fact he fled
from the scene of the crime upon realizing the gravity of what he
had committed. It is clear that it was that single shot that felled
the victim which was the immediate cause of his death.
Indeed, during the trial and as late as after the prosecution had
rested its case, the appellant offered to withdraw his plea of not
guilty and substitute it with a plea of guilty of the lessor offense of
homicide but the prosecution refused to agree with his proposal.
Under the second assigned error the appellant claims that as no
autopsy was performed on the body of the victim the prosecution
has not established the actual cause of death of the victim. He
contends that the death certificate of the victim (Exhibit A) to
which he offered no objection is admissible only to establish the
fact of death not the cause of the death of the victim. He further
avers that the testimony of Dr. Juan Santos who examined the
body of the victim but did not perform an autopsy shows that he
did not qualify as an expert witness; and even if he were an
expert witness there was no basis for him to render an opinion as
to the cause of death of the victim. Further, appellant alleges that
Dr. Santos mentioned two (2) wounds of different sizes but
otherwise with exactly identical characteristics from which the
possibility may be deduced that the victim may have been shot
twice, the second time by a person other than the appellant.
These arguments are devoid of merit.
Dr. Santos, who was then the municipal health officer of
Hagonoy, Bulacan, categorically testified that the cause of death
of the deceased was a through and through gunshot wound
which was caused by a bullet. 1 Although he may not be an
expert witness, as a physician and health officer he is certainly
qualified to give an opinion as to the cause of death of the victim.
He externally examined the body of the deceased on the same
night of the incident, and found no other sign of external violence
except the shot wound. 2 Under such circumstances, one need
not be an expert to render an opinion that the said gunshot
wound was the cause of death of the victim.
Contrary to the contention of the appellant, Dr. Santos pointed
out the difference between the two (2) wounds on the body of the
victim in that the left axilla wound was only 2.5 milimeters, while
the right chest wound was 8 milimeters in diameter; that the
former was round while the latter was oval; and that the former
was deep while the latter was shallower He denied that the
wounds were of identical appearance. 3 Dr. Santos emphasized
that the left axilla wound is the point of entry of the bullet while
the right chest wound is its point of exit and that the said wounds
were caused by one bullet. The trajectory of the bullet was from
the left axilla to the right chest. 4 The speculation of the appellant
that the victim may have been shot twice is thus totally without
basis.
The death certificate and the notes issued by Dr. Santos after his
external examination of the body of the victim establish the cause
of death of the deceased contrary to the contention of the
appellant. 5 In this jurisdiction such death certificate and notes
issued by said municipal health officer in the regular performance
of his duty are prima facie evidence of the cause of death of the
victim. 6
Moreover, the said death certificate is not only confirmed by the
testimony of Dr. Santos and by two (2) eyewitnesses Manuel
Tamayo and Delfin Lopez who stated that they saw the appellant
rush at the victim and suddenly shoot him; that the victim fell
down after he was hit; and that they brought him to the hospital
but the doctor pronounced him dead on arrival. These two
witnesses are mutual friends of both the deceased and the
appellant so that their testimonies are free from any suspicion of
bias or prejudice.
The appellant assails the findings of the court a quo that he acted
with treachery in the commission of the offense as a third
assigned error. He contends that while it may be true that he
suddenly attacked the victim, it does not appear that he had
consciously adopted the mode of attack intended to facilitate the
perpetuation of the offense without risk to himself. In fact
appellant claims that he was drunk and as such he could not
have reflected on the special means of the execution of the act.
There is treachery when the offender commits any of the crimes
against the person, employing means, method 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. 7
The suddenness of the attack does not, of itself, suffice to
support the findings of alevosia. 8 There must be evidence that
the mode of attack was consciously adopted by the appellant to
make it impossible or hard for the person attacked to defend
himself or retaliate. 9
In the present case, the appellant admitted that he had a
previous altercation with the victim wherein he was hit by the
deceased with a bottle because of certain differences they had in
a billiard hall although he claimed to have resumed friendly
relations with the victim thereafter. 10 Nevertheless, at the time of
the incident, the appellant went through the motion of inviting the
victim to join him in a drinking spree which the victim declined
and then suddenly, without any ceremony, he shot the victim
while his (the victim's) back was turned. The appellant used a
gun, a lethal weapon to insure his design to kill the victim. He
fired at him at a short distance aiming at a vital spot of his body.
The victim was unarmed. From the environmental circumstances
of the case, alevosia has been fully established. 11
Under the fourth assigned error appellant alleges that he is
entitled to the mitigating circumstance of drunkenness. He
asserts that he had been drinking from one o'clock in the
afternoon on that Christmas day and that he had been drunk five
(5) times in his entire life so that it is not habitual.
Under Article 15 of the Revised Penal Code, intoxication of the
offender shall be taken into consideration as a mitigating
circumstance when the offender committed a felony in a state of
intoxication, if the same is not habitual or subsequent to the plan
to commit said felony. Otherwise when habitual or intentional, it
shall be considered as an aggravating circumstance.
The allegation of the appellant that he was drunk when he
committed the offense is self-serving and uncorroborated.
Besides, appellant admitted that at that time he was only
dizzy, 12 and that he was on the way to another drinking spree.
Obviously he had not drunk enough. He remembers the details of
the shooting, the time it started and ended, how much wine he
imbibed and the persons who were with him. He realized the
gravity of the offense he committed so he fled and hid from the
authorities. He sought sanctuary in the chapel of Sto. Rosario,
boarded a tricycle going to the poblacion and took a La Mallorca
bus to Manila. All these are acts of a man whose mental capacity
has not been impaired.
As the fifth assigned error appellant argues that he should be
credited with the mitigating circumstance of voluntary surrender
stating that although he hid himself from the authorities for ten
(10) days, he voluntarily surrendered to the authorities thereafter
upon the advice of his parents.
The requisites of voluntary surrender are: (a) that the offender
had not actually been arrested; (b) that the offender surrendered
himself to a person in authority or the latter's agent; and (c) that
the surrender was voluntary. 13
The testimony of the appellant is not disputed by the prosecution
that while in hiding, upon the advise of his parents, he voluntarily
surrendered on January 4, 1968, so he was detained in the
municipal jail of Hagonoy. 14 The Court agrees that the appellant
is entitled to this mitigating circumstance.
However, he cannot be credited with the mitigating circumstance
of a plea of guilty to a lesser offense of the charge of homicide as
invoked under the sixth assigned error. The requisites of the
mitigating circumstance of voluntary plea of guilty are: (1) that the
offender spontaneously confessed his guilt; (2) that the
confession of guilt was made in open court, that is, before the
competent court that is to try the case; and (3) that the
confession of guilt was made prior to the presentation of
evidence for the prosecution. 15
In the present case the appellant offered to enter a plea of guilty
to the lesser offense of homicide only after some evidence of the
prosecution had been presented. He reiterated his offer after the
prosecution rested its case. This is certainly not mitigating. 16
In the light of the foregoing discussion, the seventh assigned
error where the appellant claims that he should be entitled to the
privileged mitigating circumstance is consequently without merit.
The offense committed is the crime of murder as the killing was
qualified by treachery. 17 Considering that the commission of the
offense is attended by the mitigating circumstance of voluntary
surrender, applying the Indeterminate Sentence Law, the
appellant is hereby imposed the indeterminate penalty of
imprisonment of Ten (10) Years and One (1) Day of prision
mayor as minimum to Seventeen (17) Years, Four (4) Months,
and One (1) Day of reclusion temporal as maximum. The
indemnity for the death of the victim is increased to P30,000.00.
WHEREFORE, with the above modification as to the penalty and Baizas, Alberto and Associates, Andreciano F. Caballero and
indemnity, the decision appealed from is AFFIRMED in all other Lota, Paraiso, Garcia and Dueñas for defendant-appellant Jaime
respects, with costs against accused-appellant. G. Jose.

SO ORDERED. Mabanag, Eliger and Associates for defendant-appellant Basilio

Pineda, Jr.
Teehankee, C.J., Narvasa, Cruz and Griño-Aquino, JJ., concur.
Sycip, Salazar, Luna, Manalo and Feliciano for defendant-
People vs. Jose, et. al. G.R. No. L-28232; 37 SCRA 450 appellant Edgardo P. Aquino.
February 6, 1971
Antonio Coronel Law Office and Roberto J. Ignacio for defendant-
Republic of the Philippines appellant Rogelio S. Canial.
SUPREME COURT
Manila

EN BANC PER CURIAM:

The amended complaint filed in this case in the court below,

reads as follows:
G.R. No. L-28232 February 6, 1971
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JAIME JOSE Y GOMEZ, ET AL., defendants. JAIME JOSE Y
GOMEZ, BASILIO PINEDA, JR., alias "BOY," EDGARDO
AQUINO Y PAYUMO and ROGELIO CAÑAL Y
SEVILLA, defendants-appellants.
Office of the Solicitor General Antonio P. Barredo and Solicitor
Augusto M. Amores for plaintiff-appellee.
The undersigned complainant accuses JAIME
JOSE Y GOMEZ, BASILIO PINEDA, JR. Alias
"BOY," EDUARDO AQUINO Y PAYUMO alias
"EDDIE" and ROGELIO CAÑAL Y SEVILLA alias
"ROGER," as principals, WONG LAY PUENG,
SILVERIO GUANZON Y ROMERO and JESSIE
GUION Y ENVOLTARIO as accomplices, of the
crime of Forcible Abduction with rape, committed as
follows:
That on or about the 26th day of June, 1967, in
Quezon City, and within the jurisdiction of this
Honorable Court, the above-named principal
accused, conspiring together, confederating with
and mutually helping one another, did, then and
there, wilfully, unlawfully and feloniously, with lewd
design, forcibly abduct the undersigned
complainant against her will, and did, then and
there take her, pursuant to their common criminal
design, to the Swanky Hotel in Pasay City, where
each of the four (4) accused, by means of force and
intimidation, and with the use of a deadly weapon,
have carnal knowledge of the undersigned
complainant against her will, to her damage and
prejudice in such amount as may be awarded to her
under the provisions of the civil code.
That WONG LAY PUENG, SILVERIO GUANZON y
ROMERO, and JESSIE GUION y ENVOLTARIO
without taking a direct part in the execution of the
offense either by forcing, inducing the principal
accused to execute, or cooperating in its execution
by an indispensable act, did, then and there
cooperate in the execution of the offense by
previous or simultaneous acts, that is, by
cooperating, aiding, abetting and permitting the
principal accused in sequestering the undersigned
complainant in one of the rooms of the Swanky
Hotel then under the control of the accused Wong
Lay Pueng, Silverio Guanzon y Romero and Jessie
Guion y Envoltario, thus supplying material and
moral aid in the consummation of the offense.
That the aforestated offense has been attended by
the following aggravating circumstances:
1. Use of a motor vehicle.
2. Night time sought purposely to facilitate the
commission of the crime and to make its discovery
difficult;
3. Abuse of superior strength;
4. That means were employed or circumstances
brought about which added ignominy to the natural
effects of the act; and
5. That the wrong done in the commission of the
crime be deliberately augmented by causing other
wrong not necessary for the commission.
CONTRARY TO LAW.
Upon arraignment, Basilio Pineda, Jr. pleaded guilty to the
charge imputed in the above-quoted amended complaint;
however, in an order dated July 11, 1967, the court reserved
judgment "until such time as the prosecution shall have
concluded presenting all of its evidence to prove the aggravating
circumstances listed in the complaint." Upon the other hand, the
rest of the defendants went to trial on their respective pleas of not
guilty. After the merits, the court below rendered its decision on
October 2, 1967, the dispositive portion of which reads as
follows:
WHEREFORE, the Court finds the accused Jaime
Jose, Rogelio Cañal, Eduardo Aquino and Basilio
Pineda, Jr. guilty beyond reasonable doubt of the
crime of forcible abduction with rape as described
under Art. 335 of the Revised Penal Code, as
amended, and hereby sentences each of them to
the death penalty to be executed at a date to be set
 and in the manner provided for by law; and each to
indemnify the complainant in the amount of ten
thousand pesos. On the ground that the
prosecution has failed to establish a prima
facie case against the accomplices Wong Lay
Pueng, Silverio Guanzon y Romero, and Jessie
Guion y Envoltario, the Motion to Dismiss filed for
and in their behalf is hereby granted, and the case
dismissed against the aforementioned accused.
Insofar as the car used in the abduction of the
victim which Jaime Jose identified by pointing to it
from the window of the courtroom and pictures of
which were submitted and marked as Exhibits "M"
and "M-1," and which Jaime Jose in his testimony
admitted belonged to him, pursuant to Art. 45 of the
Revised Penal Code, which requires the
confiscation and forfeiture of the proceeds or
instruments of the crime, the Court hereby orders
its confiscation.
This case is now before us by virtue of the appeal interposed by
Basilio Pineda, Jr., Edgardo Aquino, and Jaime Jose, and for
automatic review as regards Rogelio Cañal. However, for
practical purposes all of them shall hereafter be referred to as
appellants.
The complainant, Magdalena "Maggie" de la Riva, was, at the
time of the incident, 25 years old and single; she graduated from
high school in 1958 at Maryknoll College and finished the
secretarial course in 1960 at St. Theresa's College. Movie
actress by profession, she was receiving P8,000.00 per picture. It
was part of her work to perform in radio broadcasts and television
shows, where she was paid P800.00 per month in permanent
shows, P300.00 per month in live promotional shows, and from
P100.00 to P200.00 per appearance as guest in other shows.
So it was that at about 4:30 o'clock in the morning of June 26,
1967, Miss De la Riva, homeward bound from the ABS Studio on
Roxas Blvd., Pasay City, was driving her bantam car
accompanied by her maid Helen Calderon, who was also at the
front seat. Her house was at No. 48, 12th Street, New Manila,
Quezon City. She was already near her destination when a
Pontiac two-door convertible car with four men aboard (later
identified as the four appellants) came abreast of her car and
tried to bump it. She stepped on her brakes to avoid a collision,
and then pressed on the gas and swerved her car to the left, at
which moment she was already in front of her house gate; but
because the driver of the other car (Basilio Pineda, Jr.) also
accelerated his speed, the two cars almost collided for the
second time. This prompted Miss De la Riva, who was justifiably
annoyed, to ask: "Ano ba?" Forthwith, Pineda stopped the car
which he was driving, jumped out of it and rushed towards her.
The girl became so frightened at this turn of events that she
tooted the horn of her car continuously. Undaunted, Pineda
opened the door of Miss De la Riva's car and grabbed the lady's
left arm.lâwphî1.ñèt The girl held on tenaciously to her car's
steering wheel and, together with her maid, started to scream.
Her strength, however, proved no match to that of Pineda, who
succeeded in pulling her out of her car. Seeing her mistress'
predicament, the maid jumped out of the car and took hold of
Miss De la Riva's right arm in an effort to free her from Pineda's
grip. The latter, however, was able to drag Miss De la Riva
toward the Pontiac convertible car, whose motor was all the while
running.
When Miss De la Riva, who was being pulled by Pineda, was
very near the Pontiac car, the three men inside started to assist
their friend: one of them held her by the neck, while the two
others held her arms and legs. All three were now pulling Miss
De la Riva inside the car. Before she was completely in, appellant
Pineda jumped unto the driver's seat and sped away in the
direction of Broadway Street. The maid was left behind.
The complainant was made to sit between Jaime Jose and
Edgardo Aquino at the back seat; Basilio Pineda, Jr. was at the
wheel, while Rogelio Cañal was seated beside him. Miss De la
Riva entreated the appellants to release her; but all she got in
response were jeers, abusive and impolite language that the
appellants and threats that the appellants would finish her with
their Thompson and throw acid at her face if she did not keep
quiet. In the meantime, the two men seated on each side of Miss
De la Riva started to get busy with her body: Jose put one arm
around the complainant and forced his lips upon hers, while
Aquino placed his arms on her thighs and lifted her skirt. The girl
tried to resist them. She continuously implored her captors to
release her, telling them that she was the only breadwinner in the
family and that her mother was alone at home and needed her
company because her father was already dead. Upon learning of
the demise of Miss De la Riva's father, Aquino remarked that the
situation was much better than he thought since no one could
take revenge against them. By now Miss De la Riva was
beginning to realize the futility of her pleas. She made the sign of
the cross and started to pray. The appellants became angry and
cursed her. Every now and then Aquino would stand up and talk
in whispers with Pineda, after which the two would exchange
knowing glances with Cañal and Jose.
The car reached a dead-end street. Pineda turned the car around
and headed towards Victoria Street. Then the car proceeded to
Araneta Avenue, Sta. Mesa Street, Shaw Boulevard, thence to
Epifanio de los Santos Avenue. When the car reached Makati,
Aquino took a handkerchief from his pocket and, with the help of
Jose, blindfolded Miss De la Riva. The latter was told not to shout
or else she would be stabbed or shot with a Thompson. Not long
after, the car came to a stop at the Swanky Hotel in Pasay City
The blindfolded lady was led out of the car to one of the rooms on
the second floor of the hotel.
Inside the room Miss De la Riva was made to sit on a bed. Her
blindfold was removed. She saw Pineda and Aquino standing in
front of her, and Jose and Cañal sitting beside her, all of them
smiling meaningfully. Pineda told the complainant:
"Magburlesque ka para sa amin." The other three expressed their
approval and ordered Miss De la Riva to disrobe. The
complainant ignored the command. One of the appellants
suggested putting off the light so that the complainant would not
be ashamed. The idea, however, was rejected by the others, who
said that it would be more pleasurable for them if the light was
on. Miss De la Riva was told to remove her stocking in order,
according to them, to make the proceedings more exciting.
Reluctantly, she did as directed, but so slowly did she proceed
with the assigned task that the appellants cursed her and
threatened her again with the Thompson and the
acid.lâwphî1.ñèt They started pushing Miss De la Riva around.
One of them pulled down the zipper of her dress; another
unhooked her brassiere. She held on tightly to her dress to
prevent it from being pulled down, but her efforts were in vain:
her dress, together with her brassiere, fell on the floor.
The complainant was now completely naked before the four men,
who were kneeling in front of her and feasting their eyes on her
private parts. This ordeal lasted for about ten minutes, during
which the complainant, in all her nakedness, was asked twice or
thrice to turn around. Then Pineda picked up her clothes and left
the room with his other companions. The complainant tried to
look for a blanket with which to cover herself, but she could not
find one.
Very soon, Jose reentered the room and began undressing
himself. Miss De la Riva, who was sitting on the bed trying to
cover her bareness with her hands, implored him to ask his
friends to release her. Instead of answering her, he pushed her
backward and pinned her down on the bed. Miss De la Riva and
Jose struggled against each other; and because the complainant
was putting up stiff resistance, Jose cursed her and hit her
several times on the stomach and other parts of the body. The
complainant crossed her legs tightly, but her attacker was able to
force them open. Jose succeeded in having carnal knowledge of
the complainant. He then left the room.
The other three took their turns. Aquino entered the room next. A
struggle ensued between him and Miss De la Riva during which
he hit, her on different parts of the body. Like Jose, Aquino
succeeded in abusing the complainant. The girl was now in a
state of shock. Aquino called the others into the room. They
poured water on her face and slapped her to revive her.
Afterwards, three of the accused left the room, leaving Pineda
and the complainant After some struggle during which Pineda hit
her, the former succeeded in forcing his carnal desire on the
latter. When the complainant went into a state of shock for the
second time, the three other men went into the room again
poured water on the complainant's face and slapped her several
times. The complainant heard them say that they had to revive
her so she would know what was happening. Jose, Aquino and
Pineda then left the room. It was now appellant Canal's turn.
There was a struggle between him and Miss De la Riva. Like the
other three appellants before him, he hit the complainant on
different parts of the body and succeeded in forcing his carnal
lust on her.
Mention must be made of the fact that while each of mention
must be made the four appellants was struggling with the
complainant, the other three were outside the room, just behind
the door, threatening the complainant with acid and telling her to
give in because she could not, after all, escape what with their
presence.
After the appellants had been through with the sexual carnage,
they gave Miss De la Riva her clothes, told her to get dressed
and put on her stockings, and to wash her face and comb her
hair, to give the impression that nothing had happened to her.
They told her to tell her mother that she was mistaken by a group
of men for a hostess, and that when the group found out that she
was a movie actress, she was released without being harmed.
She was warned not to inform the police; for if she did and they
were apprehended, they would simply post bail and later hunt her
up and disfigure her face with acid. The appellants then
blindfolded Miss De la Riva again and led her down from the
hotel room. Because she was stumbling, she had to be carried
into the car. Inside the car, a appellant Jose held her head down
on his lap, and kept it in that position during the trip, to prevent
her from being seen by others.
Meanwhile, the four appellants were discussing the question of
where to drop Miss De la Riva. They finally decided on a spot in
front of the Free Press Building not far from Epifanio de los
Santos Avenue near Channel 5 to make it appear, according to
them, that the complainant had just come from the studio. Pineda
asked Jose to alight and call a taxicab, but to choose one which
did not come from a well-known company. Jose did as requested,
letting several taxicabs pass by before flagging a UBL taxicab.
After they warned again Miss De la Riva not to inform anyone of
what had happened to her, appellant Canal accompanied her to
the taxicab. The time was a little past 6:00 o'clock. When Miss De
la Riva was already inside the cab and alone with the driver,
Miguel F. Campos, she broke down and cried. She kept asking
the driver if a car was following them; and each time the driver
answered her in the negative.
It was 6:30 o'clock — or some two hours after the abduction —
when Miss De la Riva reached home. Her mother, her brother-in-
law Ben Suba, as well as several PC officers, policemen and
reporters, were at the house. Upon seeing her mother, the
complainant ran toward her and said, "Mommy, Mommy, I have
been raped. All four of them raped me." The mother brought her
daughter upstairs. Upon her mother's instruction, the complainant
immediately took a bath and a douche. The older woman also
instructed her daughter to douche himself two or three times daily
with a strong solution to prevent infection and pregnancy. The
family doctor, who was afterwards summoned, treated the
complainant for external physical injuries. The doctor was not,
however, told about the sexual assaults. Neither was Pat. Pablo
Pascual, the police officer who had been sent by the desk officer,
Sgt. Dimla, to the De la Riva residence when the latter received
from a mobile patrol a report of the snatching. When Miss De la
Riva arrived home from her harrowing experience, Pat. Pascual
attempted to question her, but Ben Suba requested him to
postpone the interrogation until she could be ready for it. At that
time, mother and daughter were still undecided on what to do.
On the afternoon of June 28, 1967, the complainant family
gathered to discuss what steps, if any, should be taken. After
some agonizing moments, a decision was reached: the
authorities had to be informed. Thus, early on the morning of
June 29, 1967, or on the fourth day after the incident, Miss De la
Riva, accompanied by her lawyer, Atty. Regina O. Benitez, and
by some members of the family, went to the Quezon City Police
Department Headquarters, filed a complaint and executed a
statement (Exh. "B") wherein she narrated the incident and gave
descriptions of the four men who abused her. In the afternoon of
the same day, the complainant submitted herself ito a medico-
internal examination by Dr. Ernesto Brion, NBI Chief Medico-
Legal Officer.
During the physical examination of the complainant by Dr. Brion
on June 29, 1967, Pat. Pascual was also at the NBI office. There
he received a telephone call from the police headquarters to the
effect that one of the suspects had been apprehended. That
evening, the complainant and Pat. Pascual proceeded to the
headquarters where Miss De la Riva identified appellant Jaime
Jose from among a group of persons inside the Office of the
Chief of Police of Quezon City as one of the four men he
abducted and raped her. She executed another statement (Exh.
"B-1") wherein she made a formal identification of Jose and
related the role played by him.
At about 9:00 o'clock of the same evening, appellant Jose
executed a statement (Exh. "I") before Pat. Marcos G. Viñas. In
his statement, which was duly sworn. Jose admitted that he knew
about, and was involved in, the June 26 incident. He named the
other line appellants as his companions. Jose stated, among
other things, that upon the initiative of Pineda, he and the other
three waited for Miss De la Riva to come out of the ABS Studio;
that his group gave chase to the complainant's car; that it was
Pineda who blindfolded her and that only Pineda and Aquino
criminally assaulted the complainant.
After Exh, "I" was executed by Jose, an informant furnished Pat.
Vinas with a picture of appellant Edgardo Aquino. The picture
was shown to Miss De la Riva, who declared in her sworn
statement (Exh. "B-3") that the man in the picture was one of her
abductors and rapists. The same picture was shown to Jose,
who, in another sworn statement (Exh. "I-l"), identified the man in
the picture as appellant Aquino.
After the apprehension of Jose, the other three soon fell into the
hands of the authorities: Pineda and Cañal on July 1, 1967, in
Lipa City, and Aquino on July 5, 1967, in the province of
Batangas. On the evening of July 1, 1967. Miss De la Riva
pointed to Pineda and Cañal as among the four persons who
abducted and raped her. She picked them out from among
several person in the Office of the Chief of Police of Quezon City.
Later in the same evening, Miss De la Riva executed a sworn
statement (Exh. B-2)wherein she made the same identification of
the two appellants from among a group of persons in the Office of
the Chief of the Detective Bureau, adding that appellant Cañal
had tattoo marks on his right hip. After the identification, one of
the policemen took appellant Cañal downstairs and undressed
him, and he saw, imprinted on the said appellant's right hip, the
words "Bahala na Gang."
Appellant Cañal and Pineda executed and swore to separate
statements on the day of their arrest. In his statement (Exh. "G"),
appellant Cañal confirmed the information previously given by
Jose that the four of them waited for Miss De la Riva to come
down from the ABS Studio, and that they had planned to abduct
and rape her. Appellant Cañal admitted that all four of them
participated in the commission of the crime, but he would make it
appear that insofar as he was concerned the complainant yielded
her body to him on condition that he would release her. Pineda
executed a statement (Exh. "J") stating that he and his other
three companions wept to the ABS Studio, and that, on learning
that Miss De la Riva was there, they made plans to wait for her
and to follow her. He admitted that his group followed her car and
snatched her and took her to the Swanky Hotel. He would make it
appear, however, that the complainant voluntarily acceded to
having sexual intercourse with him.
In his medical report (Exh. "K"), Dr. Brion noted the presence of
multiple contusions and bruises on different parts of the
complainant's body, as well as of genital injuries. On the witness
stand the doctor was shown several photographs of the
complainant taken in his presence and under his supervision.
With the aid of the photographs and the medical reports, the
doctor explained to the court that he found contusions or bruises
on the complainant's chest, shoulders, arms and fore-arms, right
arm index finger, thighs, right knee and legs. He also declared
that when he was examining her, Miss De la Riva complained of
slight tenderness around the neck, on the abdominal wall and at
the sites of the extragenital physical injuries, and that on pressing
the said injuries, he elicited a sigh of pain or tenderness on the
part of the subject. The injuries, according to Dr. Brion, could
have been caused blows administered by a closed fist or by the
palm of the hand, and could have been inflicted on the subject
while she was being raped. It was the doctor's opinion that they
could have been sustained on or about June 26, 1967. In
connection with the genital examination, the doctor declared that
he found injuries on the subject's genitalia which could have been
produced by sexual intercourse committed on June 26, 1967. He
said that he failed to find spermatozoa. He explained, however,
that spermatozoa are not usually found in the vagina after the
lapse of three days from the last intercourse, not to mention the
possibility that the subject might have douched herself.
The three appellants who pleaded not guilty (Jose, Aquino and
Cañal) took the witness stand. We quote hereunder the portions
of the decision under review relative to the theory of the defense:
Their story is that they and their co-accused Pineda
had gone to the Ulog Cocktail Lounge somewhere
in Mabini street in Manila, and there killed time from
9:30 in the evening of June 25 until closing time,
which was about 3:30 in the early morning of the
next day. At the cocktail lounge they had listened to
the music while enjoying some drinks. Between
them they had consumed a whole bottle of whisky,
so much so that at least Aquino became drunk,
according to his own testimony. They had been
joined at their table by a certain Frankie whom they
met only that night. Come time to go home, their
new acquaintance asked to be dropped at his home
in Cubao. The five men piled into the red-bodied,
black topped two-door convertible Plymouth
(Pontiac) car of Jaime Jose, and with Pineda at the
wheel repaired to Cubao After dislodging their new
friend, Pineda steered the car to España Extension
to bring Aquino to his home in Mayon Street. But
somewhere in España Extension before the
Rotonda a small car whizzed to them almost hitting
them. They saw that the driver was a woman.
Pineda gave chase and coming abreast of the small
car he shouted, "Putang ina mo, kamuntik na
kaming mamatay." The woman continued on her
way. Now Pineda saying "let us teach her a lesson,"
sped after her and when she swerved ostensibly to
enter a gate, Pineda stopped his car behind being
hurriedly got down, striding to the small car, opened
the door and started dragging the girl out. Both
Jose and Aquino confirm the presence of another
woman inside the girl's car, who helped the girl
struggle to get free from Pineda's grip; and that the
struggle lasted about ten minutes before Pineda
finally succeeded in pushing the girl into the red
convertible. All the three accused insist they did
nothing to aid Pineda: but they also admit that they
did nothing to stop him.
Now the defense contends that Pineda cruised
around and around the area just to scare the girl
who was in truth so scared that she begged them to
let her be and return her to her home. She turned to
Jose in appeal, but this one told her he could net do
anything as the "boss" was Pineda. Aquino heard
her plead with Jose "do you not have a sister
yourself?" but did not bear the other plea 'do you
not have a mother?' Then Pineda stopped at the
corner of the street where he had forcibly snatched
the girl presumably to return her, but then suddenly
changing his mind he said, 'why don't you do a strip
tease for us. I'll pay you P1,000.00 and the girl
taunted, 'are you kidding?': that after a little while
she consented to do the performance as long as it
would not last too long and provided the spectators
were limited to the four of them.
Pineda sped the car until they got to Swanky Hotel
where he and Maggie alighted first, but not before
Maggie had borrowed a handkerchief from one of
them to cover her face as she went up the
Hotel.lâwphî1.ñèt The three followed, and when
they saw the pair enter a room, they quickly caught
up. All the three accused testify that as soon as
they got into the room, Maggie de la Riva asked the
boys to close the windows before she. undressed in
front of them. They themselves also removed their
clothing. Two of them removed their pants retaining
their briefs, while Boy Pineda and Cañal stripped to
the skin "because it was hot." The three accused
declared that they saw Boy Pineda hand P100.00 to
Maggie and they heard him promise her that he
would pay the balance of P900.00 later.
Whereupon, the show which lasted about 10
minutes began with the naked girl walking back and
forth the room about 4 to 5 times. This
accomplished, all of them dressed up once more
and the three accused (Jaime Jose, Eduardo
Aquino and Rogelio Cañal) left the room to wait in
the car for Boy Pineda and Maggie de la Riva who
were apparently still discussing the mode of
payment of the balance. Three minutes later
Maggie de la Riva and Boy Pineda joined them.
Now, the question of how and where to drop
Maggie came up and it is testified to by the accused
that it was Maggie's idea that they should drop her
near the ABS Studio so that it would appear as if
she had just come from her work.
Jaime Jose was picked by the police on the
morning of June 29 along Buendia Avenue. Aquino
testifies how, on June 29 Pineda went to him with a
problem. He did not have the P900.00 with which to
pay Maggie the balance of her "show" and he was
afraid that if he did not pay, Maggie would have her
goons after him. He wanted Aquino to go with him
to Lipa City where he had relatives and where he
could help raise the money. Aquino readily obliged,
and to make the company complete they invited
Cañal to join them. They used another car of Jaime
Jose, different from the one they had used the day
before. At Lipa, Aquino detached himself from his
compassions and proceeded alone to the barrio
allegedly to visit his relatives. In the meantime his
two companions had remained in the City and had,
according to Canal, gone to live in a house very
close to the municipal hall building. They later
moved to another house where the PC and Quezon
City police posse found and arrested them. Aquino
was the last to be apprehended, when having read
in the newspapers that he was wanted, he
surrendered on July 5 to Mrs. Aurelia Leviste, wife
of the governor of Batangas.
The striptease-act-for-a-fee story on which the defense theory is
anchored, defies one's credulity and reason, and had utterly to
counteract the evidence for the prosecution, particularly the
complainant's testimony and Dr. Brion's medical report and
testimony. We quote with approval the able dissertion of the trial
judge on this point:
As main defense in the charge of rape, the three
accused advance the proposition that nothing
happened in Swanky Hotel except a strip-tease
exhibition which the complaint agreed to do for
them for fee of P1,000.00, P100.00 down and the
balance to be paid "later." The flaw in this
connection lies in its utter inverisimilitude. The
Court cannot believe that any woman exists, even
one habitual engaged in this kind of entertainment
(which Maggie de la Riva has not been proven to
be) who would consent (and as easily and promptly
as defense claims) to do a performance, not even
for all money in the worlds after the rough handling
she experienced from these wolves in men's
clothing who now hungered for a show. There is no
fury to match a woman stirred to indignation. A
woman's pride is far stronger than her yen for
money, and her revenge much more keen. The
Court cannot believe that after the rudeness and
meanness of these men to her, Maggie would in so
short an interval of time forget her indignation and
so readily consent to satisfy their immoral curiosity
about her. The woman in her would urge her to turn
the men's hankering as a weapon of revenge by
denying them their pleasure.
Besides, the manner of payment offered for the
performance is again something beyond even the
wildest expectations. Assuming that the woman
whom the accused had abducted was in this kind of
trade assuming that the price offered was to her
satisfaction, whom woman would be willing to
perform first and be paid later? It is simply
preposterous to believe that Maggie de la Riva
should have consent to do a striptease act for a
measly down-payment of P100.00 and the balance
to be paid God knows when. Since when are
exposition of the flesh paid on the installment
basis? By the very precautious nature of their pitiful
calling, women who sell their attractions are usually
very shrewed and it is to be expected that they
could demand full payment before curtain call. How
was Maggie to collect later when she did not even
know who these man were, where they lived,
whether they could be trusted with a promise to pay
later (!) whether she could ever find them again? If
there is anything that had struck the Court about the
complaint, it is her courage, her intelligence and her
alertness. Only a stupid woman, and a most stupid
one that, could have been persuaded to do what
the defense want this Court to believe Maggie de la
Riva consented to do.
Finally, it is odd that not one of these men should
have mentioned this circumstances during their
interview with anyone, either the press, their police
interrogator, the person who negotiated their
surrender (as in the case of Aquino) or even their
counsel. One cannot escape the very strong
suspicion that this story is a last ditch, desperate
attempt to save the day for the accused. It truly
underscores the hopelessness of their stand and
projects all the more clearly their guilt.
Then there is the incident of the men's stripping
themselves. Why was there need for this? The
Court realizes that in its desperate need of an
explanation for Maggie's positive identification of
Cañal as the man with the tattoo mark on his right
buttock, the defense concocted the sickeningly
incident story that the four men removed their
underclothing in the presence of a woman simply
"because it was hot." What kind of men were these
who were so devoid of any sense of decency that
they thought nothing of adding insult to injury by not
only inducing a woman a strip before them, but for
forcing her to perform before a naked audience?
And then they have gall to argue that "nothing"
happened. For males of cold and phlegmatic blood
and disposition it could be credible, but not for men
of torrid regions like ours where quick passions and
hot tempers are the rule rather than the exception!
All of these consideration set aside, notwithstanding, it is quite
obvious that the version of the defense has not been able to
explain away a very vital piece of evidence of prosecution which,
if unexplained, cannot but reduce any defense unavailing. The
result of the physical (external and internal) examination
conducted on the person of Maggie de la Riva in the afternoon of
June 29, the pertinent findings of which quoted earlier in this
decision, establish beyond doubt that at the time that Maggie de
la Riva was examined she bore on her body traces of physical
and sexual assault.
The only attempt to an explanation made by the
defense is either one of the following: (1) the
insinuation that when Maggie de la Riva and Boy
Pineda were left behind in the hotel room the
bruises and the sexual attack could have taken
place then. But then, the defense itself says that
these two persons rejoined the three after three or
four minutes! It is physically impossible, in such a
short time, for Boy Pineda to have attacked the girl
and inflicted on her all of these injuries; (2) it was
suggested by the defense that Maggie de la Riva
could have inflicted all of those injuries upon herself
just to make out a case against the accused. The
examining physician rules out this preposterous
proposition, verily it does not take much stretch of
the imagination to see how utterly impossible this
would be, and for what purpose? Was P900.00
which she had failed to collect worth that much self-
torture? And what about all the shame,
embarrassment and publicity she would (as she
eventually did) expose herself to? If she really had
not been raped would she have gone thru all of
these tribulation?
A woman does not easily trump up rape charges for
she has much more to lose in the notoriety the case
will reap her, her honor and that of her family, than
in the redress she demands (Canastre 82-480;
Medina, C.A. 1943 O.G. 151; Medina y Puno, CA
O.G. 338; CA 55 O.G. 7666; Galamito, L-6302,
August 25, 1954); (3) it could also be argued that
the contusions and bruises could have been
inflicted on Maggie during her struggle with Pineda
when the latter pulled and pushed her into the red
convertible car. The telltale injuries, however,
discount this possibility, for the location in which
many of the bruises and traumas were located
(particularly on the inner portion of her thighs) could
not have been cause by any struggle save by those
of a woman trying to resists the brutal and bestial
attack on her honor.
In their Memorandum the accused contend that
Maggie's sole and uncorroborated testimony should
not be rated any credence at all as against the
concerted declaration of the the accused. In the first
place, it is not correct to say that Maggie's
declaration was uncorroborated — she has for
corroboration nothing less than the written extra-
judicial statements of Jose and Canal. But even
assuming that Maggie stood alone in her
statements, the cases cited by the accused in their
Memorandum notwithstanding which the Court
does not consider in point anyway, jurisprudence
has confirmed the ruling that numbers is the least
vital element in gauging the weight of evidence.
What is more important is which of the declarations
is the more credible, the more logical, the more
 reasonable, the more prone to be biased or
polluted. (Ricarte 44 OG 2234; Damian CA-GR No.
25523, April 24, 1959). Besides, it should be borne
in maid that in the most detestable crime of rape in
which a man is at his worst the testimony of the
offended party most often is the only one available
to prove directly its commission and that
corroboration by other eyewitnesses would in
certain cases place a serious doubt as to the
probability of its commission, so trial courts of
justice are most often placed in a position of having
to accept such uncorroborated testimony if the
same is in regards conclusive, logical and probable
(Landicho, VIII ACR 530).
We shall now consider the points raised by the appellants in their
briefs.
1. Appellants Jose, Aquino and Cañal deny having had anything
to do with the abduction of Miss De la Riva. They point to Pineda
(who entered a plea of guilty) as the sole author thereof, but they
generously contend that even as to him the act was purged at
any taint of criminality by the complainant's subsequent consent
to perform a striptease show for a fee, a circumstance which, it is
claimed, negated the existence of the element of lewd design.
This line of defense has evidently leg no to stand on. The
evidence is clear and overwhelming that all the appellants
participated in the forcible abduction. Miss De la Riva declared on
the witness stand, as well as in her sworn statements, that they
helped one another in dragging her into the car against her will;
that she did not know them personally; that while inside the car,
Jose and Aquino, between whom she was seated, toyed with her
body, the former forcing his lips on hers, and the latter touching
her thighs and raising her skirt; that meaningful and knowing
glances were in the meanwhile being exchanged among the four;
and that all of them later took turns in ravishing her at the Swanky
Hotel. This testimony, whose evidentiary weight has not in the
least been overthrown by the defense, more than suffices to
establish the crimes charged in the amended complaint. In the
light thereof, appellants' protestation that they were not motivated
by lewd designs must be rejected as absolutely without factual
basis.
2. The commission of rape by each of the appellants has, as held
by the court below, likewise been clearly established. Jose,
Aquino and Canal contend that the absence of semen in the
complainant's vagina disproves the fact of rape. The contention is
untenable. Dr. Brion of the NBI, who testified as an expert,
declared that semen is not usually found in the vagina after three
days from the last intercourse, especially if the subject has
douched herself within that period. In the present case, the
examination was conducted on the fourth day after the incident,
and the complainant had douched herself to avoid infection and
pregnancy. Furthermore, the absence of spermatozoa does not
disprove the consummation of rape, the important consideration
being, not the emission of semen, but penetration
(People vs Hernandez, 49 Phil., 980). Aquino's suggestion that
the abrasions on the cervix were caused by the tough tip of a
noozle deliberately used by the complainant to strengthen her
alleged fabricated tale of rape, is absurd, if not cruel. It is difficult
to imagine that any sane woman, who is single and earning as
much Miss Dela Riva did, would inflict injuries on her genital
organ by puncturing the same with a sharply-pointed instrument
in order to strike back at four strangers who allegedly would not
pay her the sum of P900.00 due her for a striptease act. Besides,
Dr. Brion testified that the insertion of such an instrument in the
genital organ would not result in the kind of injuries he found in
the mucosa of the cervix.
3. Other evidence and considerations exist which indubitably
establish the commission of successive rapes by the four
appellants. Upon Miss De la Riva's arrival at her house in the
morning of June 26, 1967, she immediately told her mother, "
Mommy Mommy, I have been raped. All four of them raped me."
This utterance, which is part of the res gestae, commands strong
probative value, considering that it was made by the complainant
to her mother who, in cases of this nature was the most logical
person in whom a daughter would confide the truth. Aquino and
Canal would make capital of the fact that Miss De la Riva stated
to the reporters on the morning of June 26, that she was not
abused. Her statement to the press is understandable. At that
time the complainant, who had not yet consulted her family on a
matter which concerned her reputation as well as that of her
family, and her career, was not then in a position to reveal
publicly what had happened to her. This is one reason why the
complainant did not immediately inform the authorities of the
tragedy that befell her. Another reason is that she was threatened
with disfiguration. And there were, of course, the traumas found
by Dr. Brion on different parts of the complainant's body. Could
they, too, have been self-inflicted? Or, as suggested, could they
possibly have been inflicted by appellant Pineda alone, when the
story given by the other three is that Pineda and the complainant
were left in the hotel room for only three or four minutes, and that
they came out to join them in what they would picture to be a
cordial atmosphere, the complainant even allegedly suggesting
that she be dropped on a spot where people would reasonably
presume her to have come from a studio? Equally important is
the complainant's public disclosure of her tragedy, which led to
the examination of her private parts and lay her open to risks of
future public ridicule and diminution of popularity and earnings as
a movie actress.
4. Jose and Canal seek the exclusion of their extrajudicial
statements from the mass of evidence on the grounds that they
were secured from them by force and intimidation, and that the
incriminating details therein were supplied by the police
investigators. We are not convinced that the statements were
involuntarily given, or that the details recited therein were
concocted by the authorities. The statements were given in the
presence of several people and subscribed and sworn to before
the City Fiscal of Quezon City, to whom neither of the aforesaid
appellants intimated the use of inordinate methods by the police.
They are replete with details which could hardly be known to the
police; and although it is suggested that the authorities could
have secured such details from their various informers, no
evidence at all was presented to establish the truth of such
allegation. While in their statements Jose and Canal admitted
having waited — together with the two other appellants — for
Miss De la Riva at the ABS Studio, each of them attempted in the
same statements to exculpate himself: appellant Jose stated that
only Pineda and Aquino criminally abused the complainant; while
appellant Canal would make it appear that the complainant
willingly allowed him to have sexual intercourse with her. Had the
statements been prepared by the authorities, they would hardly
have contained matters which were apparently designed to
exculpate the affiants. It is significant, too, that the said two
appellants did not see it fit to inform any of their friends or
relatives of the alleged use of force and intimidation by the police.
Dr. Mariano Nario of the Quezon City Police Department, who
examined appellant Canal after the latter made his statement,
found no trace of injury on any part of the said appellant's body in
spite of the claims that he was boxed on the stomach and that
one of his arms was burned with a cigarette lighter. In the
circumstances, and considering, further, that the police officers
who took down their statements categorically denied on the
witness stand that the two appellants were tortured, or that any
detail in the statements was supplied by them or by anyone other
than the affiants themselves, We see no reason to depart from
the trial court's well-considered conclusion that the statements
were voluntarily given. However, even disregarding the in-
custody statements of Jose and Canal, We find that the mass of
evidence for the prosecution on record will suffice to secure the
conviction of the two.
The admissibility of his extrajudicial statements is likewise being
questioned by Jose on the other ground that he was not assisted
by counsel during the custodial interrogations. He cites the
decisions of the Supreme Court of the United States in Messiah
vs. U.S. (377 U.S. 201), Escobedo vs. Illinois (378 U.S. 478) and
Miranda vs. Arizona (384 U.S. 436).
The provision of the Constitution of the Philippines in point is
Article III (Bill of Rights), Section 1, par. 17 of which provides: "In
all criminal prosecutions the accused shall ... enjoy the right to be
heard by himself and counsel ..." While the said provision is
identical to that in the Constitution of the United States, in this
jurisdiction the term criminal prosecutions was interpreted by this
Court, in U.S. vs. Beecham, 23 Phil., 258 (1912), in connection
with a similar provision in the Philippine Bill of Rights (Section 5
of Act of Congress of July 1, 1902) to mean proceedings before
the trial court from arraignment to rendition of the judgment.
Implementing the said constitutional provision, We have provided
in Section 1, Rule 115 of the Rules of Court that "In all criminal
prosecutions the defendant shall be entitled ... (b) to be present
and defend in person and by attorney at every stage of the
proceedings, that is, from the arraignment to the promulgation of
the judgment." The only instances where an accused is entitled to
counsel before arraignment, if he so requests, are during the
second stage of the preliminary investigation (Rule 112, Section
11) and after the arrest (Rule 113, Section 18). The rule in the
United States need not be unquestioningly adhered to in this
jurisdiction, not only because it has no binding effect here, but
also because in interpreting a provision of the Constitution the
meaning attached thereto at the time of the adoption thereof
should be considered. And even there the said rule is not yet
quite settled, as can be deduced from the absence of unanimity
in the voting by the members of the United States Supreme Court
in all the three above-cited cases.
5. Appellant Pineda claims that insofar as he is concerned there
was a mistrial resulting in gross miscarriage of justice. He
contends that because the charge against him and his co-
appellants is a capital offense and the amended complaint cited
aggravating circumstances, which, if proved, would raise the
penalty to death, it was the duty of the court to insist on his
presence during all stages of the trial. The contention is
untenable. While a plea of guilty is mitigating, at the same time it
constitutes an admission of all the material facts alleged in the
information, including the aggravating circumstances, and it
matters not that the offense is capital, for the admission (plea of
guilty) covers both the crime and its attendant circumstances
qualifying and/or aggravating the crime (People vs. Boyles, et al.,
L-15308, May 29, 1964, citing People vs. Ama, L-14783, April 29,
1961, and People vs. Parete, L-15515, April 29, 1961). Because
of the aforesaid legal effect of Pineda's plea of guilty, it was not
incumbent upon the trial court to receive his evidence, much less
to require his presence in court. It would be different had
appellant Pineda requested the court to allow him to prove
mitigating circumstances, for then it would be the better part of
discretion on the part of the trial court to grant his request. (Cf.
People vs. Arconado, L-16175, February 28, 1962.) The case of
U.S. vs. Agcaoili (31 Phil., 91), cited by Pineda, is not in point, for
there this Court ordered a new trial because it found for a fact
that the accused, who had pleaded guilty, "did not intend to admit
that he committed the offense with the aggravating
circumstances" mentioned in the information. We are not in a
position to make a similar finding here. The transcript of the
proceedings during the arraignment shows that Pineda's counsel,
Atty. Lota prefaced his client's plea of guilty with the statement
that .
I have advised him (Pineda) about the technicalities
in plain simple language of the contents of
aggravating circumstances and apprised him of the
penalty he would get, and we have given said
accused time to think. After a while I consulted him
— for three times — and his decision was still the
same.
Three days after the arraignment, the same counsel stated in
court that he had always been averse to Pineda's idea of
pleading guilty, because "I know the circumstances called for the
imposition of the maximum penalty considering the aggravating
circumstances," but that he acceded to his client's wish only after
the fiscal had stated that he would recommend to the court the
imposition of life imprisonment on his client. To be sure, any such
recommendation does not bind the Court. The situation here,
therefore, is far different from that obtaining in U.S. vs.
Agcaoili, supra.
6. Two of the appellants — Jose and Cañal — bewail the
enormous publicity that attended the case from the start of
investigation to the trial. In spite of the said publicity, however, it
appears that the court a quo was able to give the appellants a fair
hearing. For one thing, three of the seven (7) original accused
were acquitted. For another thing, Jose himself admits in his brief
that the Trial Judge "had not been influenced by adverse and
unfair comments of the press, unmindful of the rights of the
accused to a presumption of innocence and to fair trial."
We are convinced that the herein four appellants have conspired
together to commit the crimes imputed to them in the amended
information quoted at the beginning of this
decision.lâwphî1.ñèt There is no doubt at all that the forcible
abduction of the complainant from in front of her house in
Quezon City, was a necessary if not indispensable means which
enabled them to commit the various and the successive acts of
rape upon her person. It bears noting, however, that even while
the first act of rape was being performed, the crime of forcible
abduction had already been consummated, so that each of the
three succeeding (crimes of the same nature can not legally be
considered as still connected with the abduction — in other
words, they should be detached from, and considered
independently of, that of forcible abduction and, therefore, the
former can no longer be complexed with the latter.
What kind of rape was committed? Undoubtedly, it is that which
is punishable by the penalty of reclusion perpetua to death, under
paragraph 3, Article 335, as amended by Republic Act No. 4111
which took effect on June 20, 1964, and which provides as
follows:
ART. 335. When and how rape committed.—Rape
is committed by having carnal knowledge of a
woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or
otherwise unconscious; and
 3. When the woman is under twelve years of age,
even though neither of the circumstances
mentioned in the two next preceding paragraphs
shall be present.
The crime of rape shall be punished by reclusion
perpetua.
Whenever the crime of rape is committed with the
use of a deadly weapon or by two or more persons,
the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, the
victim has become insane, the penalty shall be
death.
When the rape is attempted or frustrated and a
homicide is committed by reason or on the occasion
thereof, the penalty shall be likewise death.
When by reason or on the occasion of the rape, a
homicide is committed, the penalty shall be death.
As regards, therefore, the complex crime of forcible abduction
with rape, the first of the crimes committed, the latter is definitely
the more serious; hence, pursuant the provision of Art. 48 of the
Revised Penal Code, the penalty prescribed shall be imposed in
its maximum period. Consequently, the appellants should suffer
the extreme penalty of death. In this regard, there is hardly any
necessity to consider the attendance of aggravating
circumstances, for the same would not alter the nature of the
penalty to be imposed.
Nevertheless, to put matters in their proper perspective and for
the purpose of determining the proper penalty to be imposed in
each of the other three crimes of simple rape, it behooves Us to
make a definite finding in this connection to the effect that the
commission of said crimes was attended with the following
aggravating circumstances: (a) nighttime, appellants having
purposely sought such circumstance to facilitate the commission
of these crimes; (b) abuse of superior strength, the crime having
been committed by the four appellants in conspiracy with one
another (Cf. People vs. De Guzman, et al., 51 Phil., 105, 113); (c)
ignominy, since the appellants in ordering the complainant to
exhibit to them her complete nakedness for about ten minutes,
before raping her, brought about a circumstance which tended to
make the effects of the crime more humiliating; and (d) use of a
motor vehicle. With respect to appellants Jose, Aquino and
Ca_¤_al, none of these aggravating circumstances has been
offset by any mitigating circumstance. Appellant Pineda should,
however, be credited with the mitigating circumstance of
voluntary plea of guilty, a factor which does not in the least affect
the nature of the proper penalties to be imposed, for the reason
that there would still be three aggravating circumstances
remaining. As a result, appellants should likewise be made to
suffer the extreme penalty of death in each of these three simple
crimes of rape. (Art. 63, par. 2, Revised Penal Code.)
In refusing to impose as many death penalties as there are
offenses committed, the trial court applied by analogy Article 70
of the Revised Penal Code, which provides that "the maximum
duration of all the penalties therein imposed upon the appellant
shall not be more than threefold the length of time corresponding
to the most severe of the penalties imposed upon the appellant,
which should not exceed forty years." The said court is of the
opinion that since a man has only one life to pay for a wrong, the
ends of justice would be served, and society and the victim would
be vindicated just as well, if only one death penalty were imposed
on each of the appellants.
We cannot agree with the trial court. Article 70 of the Revised
Penal Code can only be taken into account in connection with the
service of the sentence imposed, not in the imposition of the
penalty (People vs. Escares, 55 Off. Gaz., 623). In holding that
only one death penalty should be imposed because man has only
one life, the trial court ignored the principle enunciated in the very
case it cited, namely, U.S. vs. Balaba, 37 Phil., 260, where this
Court, in affirming the judgment of the trial court, found the
accused guilty of two murders and one homicide and imposed
upon him two death sentences for the murders and a prison term
for the homicide. In not applying the said principle, the court a
quo said that the case of Balaba is different from the present
case, for while in the former case the accused was found to have
committed three distinct offenses, here only one offense is
charged, even if complex. As We have explained earlier herein,
four crimes were committed, charged and proved. There is,
therefore, no substantial difference between the two cases
insofar as the basic philosophy involved is concerned, for the fact
remains that in the case of Balaba this Court did not hesitate to
affirm the two death sentences imposed on the accused by the
trial court. In People vs. Peralta, et al., L-19060, October 29,
1968, in which this Court imposed on each of the six accused
three death penalties for three distinct and separate crimes of
murder, We said that "since it is the settled rule that once
conspiracy is established, the act of one conspirator is
attributable to all, then each conspirator must be held liable for
each of the felonious acts committed as a result of the
conspiracy, regardless of the nature and severity of the
appropriate penalties prescribed by law." In the said case (which
was promulgated after the decision of the court a quo had been
handed down) We had occasion to discuss at length the legality
and practicality of imposing multiple death penalties, thus:
The imposition of multiple death penalties is decried
by some as a useless formality, an exercise in
futility. It is contended, undeniably enough, that a
death convict, like all mortals, has only one life to
forfeit. And because of this physiological and
biological attribute of man, it is reasoned that the
imposition of multiple death penalties is impractical
and futile because after the service of one capital
penalty, the execution of the rest of the death
penalties will naturally be rendered impossible. The
foregoing opposition to the multiple imposition of
death penalties suffers from four basic flaws: (1) it
fails to consider the legality of imposing multiple
capital penalties; (2) it fails to distinguish between
imposition of penalty and service of sentence; (3) it
ignores the fact that multiple death sentences could
be served simultaneously; and (4) it overlooks the
practical merits of imposing multiple death
penalties.
The imposition of a penalty and the service of a
sentence are two distinct, though related, concepts.
The imposition of the proper penalty or penalties is
determined by the nature, gravity and number of
offenses charged and proved, whereas service of
sentence is determined by the severity and
character of the penalty or penalties imposed. In the
imposition of the proper penalty or penalties, the
court does not concern itself with the possibility or
practicality of the service of the sentence, since
actual service is a contingency subject to varied
factors like the successful escape of the convict,
grant of executive clemency or natural death of the
prisoner. All that go into the imposition of the proper
penalty or penalties, to reiterate, are the nature,
gravity and number of the offenses charged and
proved and the corresponding penalties prescribed
by law.
Multiple death penalties are not impossible to serve
because they will have to be executed
simultaneously. A cursory reading of article 70 will
show that there are only two moves of serving two
or more (multiple) penalties: simultaneously
or successively. The first rule is that two or more
penalties shall be served simultaneously if the
nature of the penalties will so permit. In the case of
multiple capital penalties, the nature of said penal
sanctions does not only permit but actually
necessitates simultaneous service.
The imposition of multiple death penalties, far from
being a useless formality, has practical importance.
The sentencing of an accused to several capital
penalties is an indelible badge of his extreme
criminal perversity, which may not be accurately
projected by the imposition of only one death
sentence irrespective of the number of capital
felonies for which he is liable. Showing thus the
reprehensible character of the convict in its real
dimensions, the possibility of a grant of executive
clemency is justifiably reduced in no small measure.
Hence, the imposition of multiple death penalties
could effectively serve as deterrent to an
improvident grant of pardon or commutation. Faced
with the utter delinquency of such a convict, the
proper penitentiary authorities would exercise
judicious restraint in recommending clemency or
leniency in his behalf.
Granting, however, that the Chief Executive, in the
exercise of his constitutional power to pardon (one
of the presidential prerogatives which is almost
absolute) deems it proper to commute the multiple
death penalties to multiple life imprisonments, then
the practical effect is that the convict has to serve
the maximum forty (40) years of multiple life
sentences. If only one death penalty is imposed,
and then is commuted to life imprisonment, the
convict will have to serve a maximum of only thirty
years corresponding to a single life sentence.
We are, therefore, of the opinion that in view of the existence of
conspiracy among them and of our finding as regards the nature
and number of the crimes committed, as well as of the presence
of aggravating circumstances, four death penalties should be
imposed in the premises.
————
Before Us is a petition for intervention filed by Filipinas
Investment & Finance Corporation asking for reversal of that
portion of the judgment of the court below ordering the
confiscation of the car used by the appellants in abducting the
complainant. The aforesaid car is a 1965 two-door Pontiac sedan
with Motor No. WT-222410, Serial No. 2376752110777, Plate
No. H-33284, File No. 11584171, alleged by the intervenor to be
in the custody of Major Ernesto San Diego of the Quezon City
Police Department. The car is registered in the name of Mrs.
Dolores Gomez.
On April 4, 1967, Mrs. Dolores Gomez, mother of an appellant
Jaime G. Jose, bought the car from the Malayan Motors
Corporation and simultaneously executed a chattel mortgage
thereon to secure payment of the purchase price of P13,200,
which was stipulated to be payable in 24 monthly installments of
P550 beginning May 4, 1967 up to April 4, 1969. The mortgage
was duly registered with the Land Transportation Commission
and inscribed in the Chattel Mortgage Registry. The mortgage
lien was annotated on the motor registration certificate. On April
17, 1967, for value received and with notice to Mrs. Gomez, the
Malayan Motors Corporation assigned its credit against Mrs.
Gomez, as well as the chattel mortgage, to the intervenor. The
assignment was duly registered with the Land Transportation
Commission and annotated on the registration certificate.
Mrs. Gomez failed to pay any of the installments due, in view of
which the intervenor filed on July 5, 1967, an action for replevin
against her (Civil Case No. 69993, Court of First Instance of
Manila) as a preliminary step to foreclosure of the chattel
mortgage. On July 7, 1967, the court issued an order for the
seizure of the car. The sheriff, however, could not enforce the writ
of replevin because the car was not in Mrs. Gomez' possession,
the same having been used by her son, appellant Jaime G. Jose,
together with the other appellants in this case, in the abduction of
Miss De la Riva, as a result of which the car was seized by the
Quezon City police and placed in the custody of Major San
Diego, who refused to surrender it to the sheriff on the ground
that it would be used as evidence in the trial of the criminal case.
During the pendency of that criminal case in the court below, or
on July 26, 1967, the intervenor filed with the said court a petition
for intervention. The said petition was not, however, acted upon.
On October 2, 1967, the trial court rendered its judgment in the
present case ordering the car's confiscation as an instrument of
the crime. Although not notified of the said decision, the
intervenor filed, on October 17, 1967, a motion for
reconsideration of the order of confiscation; but the same was
denied on October 31, 1967, on the ground that the trial court
had lost jurisdiction over the case in view of the automatic
elevation thereof to this Court. The intervenor then filed a petition
for relief from judgement, but the same was also denied.
On February 5, 1968, judgement was rendered in the replevin
case ordering Mrs. Gomez to deliver the car to the intervenor so
that the chattel mortgage thereon could be foreclosed, or, in the
alternative, to pay the intervenor the sum of P13,200 with interest
thereon at 12% per annum from July 5, 1968, the premium bond,
attorney's fees, and the costs of suit. The judgment became final
and executory. Attempts to execute the judgment against the
properties of Mrs. Gomez were unavailing; the writ of execution
was returned by the sheriff unsatisfied. On July 26, 1968, the
present petition for intervention was filed with this Court, which
allowed the intervenor to file a brief. In his brief the Solicitor
General contends, among others, that the court a quo having
found that appellant Jose is the owner of the car, the order of
confiscation is correct.
Considering that the car in question is registered in the name of
Mrs. Dolores Gomez, who, in the absence of strong evidence to
the contrary, must be considered as the lawful owner thereof; that
the only basis of the court a quo in concluding that the said car
belongs to appellant Jose were the latter's statements during the
trial of the criminal case to that effect; that the said statement
were not, however, intended to be, nor could constitute, a claim
of ownership over the car adverse to his mother, but were made
simply in answer to questions propounded in court for the sole
purpose of establishing the identity of the defendant who
furnished the car used by the appellants in the commission of the
crime; that the chattel mortgage on the car and its assignment in
the favor of the intervenor were made several months before the
date of commission of the crimes charged, which circumstance
forecloses the possibility of collusion to prevent the State from
confiscating the car; that the final judgement in the replevin case
can only be executed by delivering the possession of the car to
the intervenor for foreclosure of the chattel mortgage; and the
Article 45 of the Revised Penal Code bars the confiscation and
forfeiture of an instrument or tool used in the commission of the
crime if such "be the property of a third person not liable for the
offense," it is the sense of this Court that the order of the court
below for confiscation of the car in question should be set aside
and that the said car should be ordered delivered to the
intervenor for foreclosure as decreed in the judgment of the Court
of First Instance of Manila in the replevin case, Civil Case No.
69993.
likewise convicted of three (3) other crimes of rape. As a
consequence thereof, each of them is hereby sentenced to four
(4) death penalties; all of them shall, jointly and severally,
indemnify the complainant of the sum of P10,000.00 in each of
the four crimes, or a total of 40,000.00; and each shall pay one-
fourth (1/4) of the costs.
Insofar as the car used in the commission of the crime is
concerned, the order of the court a quo for its confiscation is
hereby set aside; and whoever is in custody thereof is hereby
ordered to deliver its possession to intervenor Filipinas
Investment & Finance Corporation in accordance with the
judgment of the Court of First Instance of Manila in Civil Case No.
69993 thereof.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar,
Castro, Fernando, Villamor and Makasiar, JJ., concur.
Barredo and Teehankee, JJ., took no part.

————

Before the actual promulgation of this decision, this Court

received a formal manifestation on the part of the Solicitor
General to the effect that Rogelio Cañal, one of the herein
appellants, died in prison on December 28, 1970. As a result of
this development, this case is hereby dismissed as to him alone,
and only insofar as his criminal liability is concerned, with one-
fourth (1/4) of the costs declared de oficio.

WHEREFORE, the judgment under review is hereby modified as

follows: appellants Jaime G. Jose, Basilio Pineda, Jr., and
Edgardo P. Aquino are pronounced guilty of the complex crime of
forcible abduction with rape, and each and every one of them is
People vs. Montinola G.R. Nos. 131856-57; 360 SCRA 631
July 9, 2001
EN BANC
G.R. Nos. 131856-57 July 9, 2001
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
WILLIAM MONTINOLA, accused-appellant.
DAVIDE, JR., C.J.:
The core issue in this case is whether the use of an unlicensed
firearm in the killing perpetrated by reason or on the occasion of
the robbery may be treated as a separate offense or as an
aggravating circumstance in the crime of robbery with homicide.
Accused-appellant William Muyco Montinola (hereafter WILLIAM)
was charged before the Regional Trial Court of Iloilo City with
robbery with homicide in Criminal Case No. 47168 and illegal
possession of firearm in Criminal Case No. 47269. The
accusatory portions of the two informations read as follows:
Criminal Case No. 47168:
That on or about the 18th day of November 1996, in the
City of Iloilo, Philippines, and within the jurisdiction of this
Honorable court, the above named accused, armed with
unlicensed Cal. 380 Pistol "Llama" with Serial No. 170257
did then and there deliberately, willfully and criminally with
violence against or intimidation of persons, with intent of
gain, take and carry away cash amount of P67,500.00
belonging to Jose Eduardo Reteracion, and by reason and
on occasion thereof, the said accused shot to death the
said Jose Eduardo Reteracion; that cash amount of
P48,200.00 was recovered from the herein accused.
Contrary to Law.1
Criminal Case No. 47169 reads as follows:
That on or about the 18th day of November 1996, in the
City of Iloilo, Philippines, and within the jurisdiction of this
Honorable Court, said accused, with deliberate intent and
without any justifiable motive, did then and there willfully,
unlawfully and criminally have in his possession, custody
and control one (1) Pistol Llama, caliber .380 with Serial
No. 170257 with two (2) cal. .380 live ammunition without
having obtained the proper license or permit to carry, to
hold and possess the same, which firearm was used by
the said accused William Muyco Montinola in shooting to
death the victim Jose Eduardo Reteracion.
Contrary to Law.2
Upon his arraignment on 6 January 1997,3 WILLIAM entered a
plea of not guilty to both charges. Joint trial of the two cases was
conducted. However, on 19 February 1997, after the prosecution
had presented three witnesses, WILLIAM moved to withdraw his
previous plea of "not guilty"; and when rearraigned, he pleaded
"guilty" to both charges. Nevertheless, trial on the merits
continued.
The antecedent facts, as summarized by the Office of the
Solicitor General, are as follows:
At noon of November 18, 1996, appellant boarded a
passenger jeepney driven by Jesus Hibinioda bound for
Libertad Plaza, Iloilo City. Among the passengers was
Jose Eduardo Reteracion. All of a sudden, appellant drew
his gun, an unlicensed firearm, .380 caliber pistol Llama
with Serial No. 170257 and directed Reteracion to hand
over his money or else he would be killed (p. 19, TSN,
January 13, 1997). Appellant aimed the firearm at the neck
of Reteracion and fired successive shots at the latter. As a
result Reteracion slumped dead (pp. 22-23, TSN, January
13, 1997).
Police Officer Garcia, who heard the shot, approached the
jeep and met appellant carrying a gun. He chased
appellant who ran away with his jacket bloodstained as he
threw bundles of money. Garcia and the bystanders
picked up the money strewn on the way by appellant.
Police Officer Hollero finally caught up with appellant, who
was brought to the police station with his gun (pp. 5-10,
TSN, January 13, 1997).
The gun used by appellant while robbing and killing
Reteracion was determined by Senior Police Officer Ely
Superio of the PNP Firearms Unit as not licensed.
Appellant had no permit to possess and/or carry the same
(p. 4, TSN, February 18, 1997). The paraffin test made on
the hands of appellant yielded positive for gun powder
nitrate indicating that he had recently fired a gun (p. 7,
TSN, February 19, 1997). The gun confiscated from
appellant [was] the same gun used to shoot and kill the
victim as shown by the comparison of the slugs from the
tested bullets with the slugs recovered from the body of
the victim (pp. 7-8 TSN, February 26, 1997).
The wife of the victim spent for the burial and wake of her
husband an amount of P191,835.00 and failed to recover
P39,500.00 which was a part of the money taken from her
husband. She became depressed, sleepless and not in the
mood to eat because of utter sadness resulting from the
death of her husband (pp. 6-14, TSN, January 14, 1997).4
On 24 April 1996, the trial court rendered a Joint
Judgment5 finding WILLIAM guilty beyond reasonable doubt of
the charges filed against him. It sentenced him to reclusion
perpetua for the robbery with homicide and to the penalty of
death for illegal possession of firearm. It also ordered him to pay
the family of the victim the amounts of P50,000 as death
indemnity; P191,835 for the burial and wake expenses; and
P39,000 for the unrecovered part of the money taken from the
victim and to pay the victim’s wife P100,000 as moral damages.
On 19 May 1997, WILLIAM filed with the trial court a Notice of
Appeal6 stating that he was appealing the decision to the Court of
Appeals. In an order dated 15 May 1997, the trial court directed
the transmission of the records to this Court.
In his appellant’s Brief, WILLIAM imputes this lone error to the
trial court:
IT WOULD BE AN ERROR TO IMPOSE THE DEATH
PENALTY FOR THE CRIME OF ILLEGAL POSSESSION
 OF FIREARM BECAUSE OF THE ENACTMENT OF
REPUBLIC ACT NO. 8294 WHICH AMENDED
PRESIDENTIAL DECREE NO. 1866.
WILLIAM contends that the use of an unlicensed firearm in the
crime of murder or homicide should be appreciated as an
aggravating circumstance and not as a separate offense
pursuant to R.A. No. 8294,7 specifically Section 1 thereof,
amending for that purpose P.D. No. 1866.8 The new law, R.A.
No. 8294, may be retroactively applied, since it is favorable to
him in that it effectively "reduced the penalties for simple and
aggravated forms of illegal possession." For this reason, he prays
that the Court reconsider the challenged decision of the trial court
and order the dismissal of the case for illegal possession of
firearm.
On the other hand, the Office of the Solicitor General (OSG)
maintains that the invocation by WILLIAM of the benefits of the
third paragraph of Section 1 of P.D. No. 1866, as amended by
R.A. 8294, is misplaced. The use of an unlicensed firearm shall
be considered as an aggravating circumstance in the crime of
murder or homicide only, which are classified as crimes against
persons, and not to robbery with homicide, which is classified as
a crime against property under Title X of the Revised Penal
Code. Furthermore, to apply to the present case the provisions of
R.A. No. 8279 and treat the use of an unlicensed firearm as a
special aggravating circumstance would contravene Article 22 of
the Revised Penal Code and Section 22, Article III, of the 1987
Constitution prohibiting the "ex post facto application of law."
Under Article 294 of the Revised Penal Code, the crime of
robbery with homicide is punishable with reclusion perpetua to
death. Should the Court appreciate the use of an unlicensed
firearm as an aggravating circumstance, the higher penalty of
death shall be meted on the accused. Essentially, therefore,
WILLIAM shall be made to suffer a greater and harsher
punishment than that which the law imposed when the act was
committed. Upon the other hand, there is no legal obstacle on the
conviction of WILLIAM of the separate crimes of robbery with
homicide and illegal possession of firearm because such is
supported by our ruling in People v. Cerveto.9
The OSG then sought for the affirmance of the trial court’s ruling
adjudging the accused guilty of two separate crimes of robbery
with homicide and illegal possession of firearm. It recommends,
however, that in the charge of illegal possession of firearm the
accused be given the benefit of the lighter penalty provided in
R.A. No. 8294, i.e., a penalty ranging from four years (4) and two
(2) months, as minimum, to six (6) years, as maximum, of prision
correccional. Furthermore, the accused should be ordered to
return the amount of P19,300 representing the "difference
between the amount taken away and the amount recovered as
alleged in the information."
A few words on procedure and jurisdiction.
WILLIAM’s notice of appeal has not escaped our attention. He
therein stated that he was appealing the trial court’s judgment to
the Court of Appeals. It must be noted that it is the Supreme
Court, and not the Court of Appeals, that has appellate
jurisdiction over all criminal cases in which the penalty imposed
is reclusion perpetua or higher.10 As to judgments in which death
penalty is imposed, such as the judgment in Criminal Case No.
47169, no notice of appeal is necessary, as the same is subject
to automatic review11 pursuant to Article 47 of the Revised Penal
Code, as amended by R.A. No. 7659. But as to judgments
imposing reclusion perpetua, such as that in Criminal Case No.
47168, the appeal to this Court shall be by filing a notice of
appeal with the trial court.12
WILLIAM’s notice of appeal from the judgment in Criminal Cases
Nos. 47168-69, albeit erroneous since it was directed to the
Court of Appeals, may nevertheless be given due course. For
even without that or even if he did not appeal from said judgment,
we would nevertheless review the same conformably with our
ruling in People vs. Alitagtag,13 as affirmed in People vs.
Contreras.14 We ruled therein that where cases have been
consolidated and jointly tried, and only one decision is rendered
sentencing the accused to death in one and to reclusion
perpetua in the others, he would be deemed to have appealed
from the judgment in the latter cases.
Now on the merits of the case.
We find that the prosecution has duly established by evidence
independent from WILLIAM’s plea of guilty and confession of guilt
that he killed the victim after having succeeded in divesting the
latter of his money. The gun he used in shooting the victim, which
was thereafter seized from him and offered in evidence, was
unlicensed. And per the testimony of SPO3 Ely Superio of the
PNP Firearms and Explosive Unit, WILLIAM had no license or
permit to possess or carry the same.
The lone issue thus obtaining in this case is whether in light of
the amendment introduced by R.A. No. 8294 to P.D. No. 1866 he
could be prosecuted for, and convicted of, the separate crimes of
robbery with homicide and illegal possession of firearms.
On 18 November 1996, when the crime was committed, the
pertinent law, P.D. No. 1866, provided in Section 1 thereof as
follows:
Section 1. Unlawful Manufacture, Sale, Acquisition,
Disposition or Possession of Firearms, Ammunition or
Instruments 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 firearm, part of a
firearm, ammunition or machinery, tool or instrument used
or intended to be used in the manufacture of any firearms
or ammunition.
If homicide or murder is committed with the use of an
unlicensed firearm, the penalty of death shall be imposed.
In People v. Alolod,15 the accused therein grabbed from a
passenger of a jeepney a bag containing money. When the latter
resisted and grappled for the possession of the bag, accused
shot him twice with a .38 caliber paltik revolver. In our decision of
7 January 1997, we affirmed the trial court’s judgment convicting
the accused-appellant therein of two separate crimes of robbery
with homicide and illegal possession of firearm and sentencing
him to the penalty of reclusion perpetua in each case. As to the
charge of illegal possession of firearm, we held:
Sec. 1 of P.D. [No.] 1866 provides that "[i]f homicide or
murder is committed with the use of an unlicensed firearm,
the penalty of death shall be imposed." Since the incident
took place on 13 December 1991 when the death penalty
was proscribed and before it was reimposed under R.A.
[No.] 7659, which took effect [on] 31 December 1993, the
sentence is automatically commuted to reclusion perpetua.
The present case has similar set of facts; the only difference is
that the crimes were committed on 18 November 1996 when R.A.
No. 7659 restoring the death penalty was already in effect. Thus,
in line with the ruling in Alolod and applying P.D. No. 1866 and
R.A. No. 7659, WILLIAM could be held guilty of two separate
crimes of robbery with homicide and illegal possession of firearm,
and sentenced to reclusion perpetua for the first crime and to
death for the second.
Fortunately for WILLIAM, on 6 July 1997 while his case was still
pending, R.A. No. 8294 amending P.D. No. 1866 took effect. The
third paragraph of Section 1 of P.D. No. 1866, as amended by
R.A. No. 8294, provides:
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 recentcases,16 we ruled that there could be no separate
conviction for illegal possession of firearm if homicide or murder
is committed with the use of an unlicensed firearm; instead, such
use shall be considered merely as an aggravating circumstance
in the homicide or murder committed. Hence, insofar as the new
law will be advantageous to WILLIAM as it will spare him from a
separate conviction for illegal possession of firearm, it shall be
given retroactive effect.17
We cannot apply to the instant case People v. Cervito,18 which
is relied upon by the OSG. Unlike in the instant case, that case
did not call for the application of the second paragraph of Section
1 of P.D. No. 1866 or the third paragraph of Section 1 of P.D. No.
1866, as amended by R.A. No. 8294, since the unlicensed
firearm which was recovered from the scene of the crime was not
the one used in the homicide committed on the occasion of the
robbery. The prosecution evidence itself disclosed that such gun
had not been fired, as it had no spent shells. The accused-
appellant therein, Freneto Cervito, was, however, seen pointing
that gun at the passengers while the robbery was going on. He
was thus convicted of two crimes of robbery with homicide and
illegal possession of firearm. We affirmed his conviction for both
crimes. Although the crimes were committed on 10 July 1995
before the effectivity of R.A. No. 8294, we applied the said law
with respect to the penalty for the crime of illegal possession of
firearm for being more favorable to the accused in that it provided
a lighter penalty.
The next question that needs to be addressed is whether the use
of an unlicensed firearm in the killing perpetrated by reason or on
the occasion of the robbery may be considered as an aggravating
circumstance in the crime of robbery with homicide.
It is undisputed that, pursuant to the third paragraph of Section 1
of P.D. No. 1866, as amended by R.A. No. 8294, such use of an
unlicensed firearm is a special aggravating circumstance in the
homicide or murder committed. But, may the aggravating
circumstances attending the killing be appreciated in fixing the
appropriate penalty for robbery with homicide? The rulings on this
matter are conflicting.
In People v. Galang19 and People v. Semañada,20 treachery and
cruelty, which attended the killing, were considered as
aggravating circumstances in determining the penalty for robbery
with homicide. In People v. Nismal,21 the circumstance of
disregard of respect due the victim on account of his rank
aggravated the crime of robbery with homicide.
Likewise, in People v. Capillas,22 People v. Ang,23 and People v.
Punzalan,24 we held that when the killing is committed by reason
or on the occasion of the robbery, the qualifying circumstances
attendant to the killing would be considered as generic
aggravating circumstances; thus, in all these three cases the
circumstance of abuse of superior strength25 served to aggravate
the crime. In the third case, evident premeditation was also
considered as aggravating. However, in these three cases, as
well as in People v. Ponciano,26 we said that disregard of age,
sex or rank is not aggravating in robbery with homicide, which is
primarily a crime against property, as the homicide is regarded as
merely incidental to the robbery.
It is worthy to note, however, that in the more recent case
of People v. Salvatiera,27 reiterated in People v.
Cando28 and People v. Macabales,29 we held that when treachery
obtains in the special complex crime of robbery with homicide,
such treachery is to be regarded as a generic aggravating
circumstance, since robbery with homicide is a composite crime
with its own definition and special penalty in the Revised Penal
Code. Having formed part of the circumstances proven
concerning the actual commission of the crime, such treachery
would help determine the penalty to be imposed.
Furthermore, it may not be amiss to state that the special
aggravating circumstance of use of an unlicensed firearm
mentioned in Article 29630 of the Revised Penal Code has been
held to be applicable only to cases of robbery in band under
Article 295 of the same Code. It was not appreciated in fixing the
penalty for robbery with homicide under Article 294 even if
committed by a band with the use of unlicensed firearms (the
element of band was considered merely as an ordinary
aggravating circumstance).31
At any rate, even assuming that the aggravating circumstances
present in the commission of homicide or murder may be counted
in the determination of the penalty for robbery with homicide, we
cannot appreciate in this case the special aggravating
circumstance of "use of an unlicensed firearm" mentioned in the
third paragraph of Section 1 of P.D. No. 1866, as amended by
R.A. No. 8294. Such law was not yet enacted when the crime
was committed by WILLIAM; it cannot, therefore, be given
retroactive effect for being unfavorable to him.
Under Article 294 of the Revised Penal Code, as amended by
R.A. No. 7659, robbery with homicide is punishable by reclusion
perpetua to death, which are both indivisible penalties. Article 63
of the same Code provides that in all cases in which the law
prescribes a penalty composed of two indivisible penalties, the
greater penalty shall be applied when the commission of the
deed is attended by one aggravating circumstance. If we would
apply retroactively the special aggravating circumstance of use of
unlicensed firearm under Section 1 of P.D. No. 1866, as
amended by R.A. No. 8294, the imposable penalty would be
death. Conformably with our ruling in People v.
Valdez,32 reiterated in People v. Macoy,33 insofar as the new law
would aggravate the crime of robbery with homicide and increase
the penalty from reclusion perpetua to death, it would not be
given retroactive application, lest it would acquire the character of
an ex post facto law. Hence, we shall not appreciate that special
aggravating circumstance. There being no modifying
circumstances, the lesser penalty34 of reclusion perpetua shall be
imposed upon accused-appellant WILLIAM.
Parenthetically, the trial court was correct in not crediting in favor
of WILLIAM the mitigating circumstance of plea of guilty, since
the change of his plea from "not guilty" to "guilty" was made only
after the presentation of some evidence for the prosecution.35 To
be entitled to such mitigating circumstance, the accused must
have voluntarily confessed his guilt before the court prior to the
presentation of the evidence for the prosecution.36 The following
requirements must therefore concur: (1) the accused
spontaneously confessed his guilt; (2) the confession of guilt was
made in open court, that is, before a competent court trying the
case; and (3) the confession of guilt was made prior to the (b) The award of P39,000 representing the
presentation of evidence for the prosecution.37 The third requisite unrecovered part of the money taken from the
is wanting in the present case.1âwphi1.nêt victim is REDUCED to P19,300; and

We shall modify the awards of damages. The award of P191,835 (c) The award for moral damages is REDUCED
for burial and wake expenses should be reduced to P117,672.26, from P100,000 to P50,000.
since only the latter amount was evidenced by receipts. Likewise,
considering the allegation in the information and the Costs de oficio.
testimony38 of the victim’s wife that the amount of P48,200 was
recovered from WILLIAM, the award of P39,000 representing the SO ORDERED.
unrecovered part of the money taken from the victim must also
be reduced to P19,300 (the difference between the sum of Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Pardo, Buena,
money taken from the victim [P67,500] and that recovered from De Leon, Jr., Sandoval-Gutierrez, JJ., concur.
accused-appellant [P48,200]). We should also reduce the award
of moral damages from P100,000 to P50,000 in accordance with Panganiban, Quisumbing, Ynares-Santiago, abroad on official
current jurisprudence.39 business.

WHEREFORE, the Joint Judgment of the Regional Trial Court of Gonzaga-Reyes, on leave.
Iloilo City, Branch 25, in Criminal Cases Nos. 47168 and 47269 is
AFFIRMED with MODICATIONS as follows:

1. In Criminal Case No. 47169, accused-appellant

WILLIAM MONTINOLA is ACQUITTED of the crime of
illegal possession of firearm and therefore spared the
penalty of death;

2. In Criminal Case No. 47168, where the penalty

of reclusion perpetua is imposed,

(a) The award of P191,835 for burial and wake

expenses is REDUCED to P117,672.26;
People vs. Dawaton G.R. No. 146247; 389 SCRA 277
September 17, 2002
EN BANC
[G.R. No. 146247. September 17, 2002
PEOPLE OF THE PHILIPPINES, plaintiff, v. EDGAR
DAWATON, accused.
DECISION
BELLOSILLO, J.:
EDGAR DAWATON was found by the trial court guilty of murder
qualified by treachery and sentenced to death, ordered to
indemnify the heirs of the victim P50,000.00 plus the accessory
penalties provided by law, without subsidiary imprisonment in
case of insolvency, and to pay the costs of
suit.1cräläwvirtualibräry
An Information2 for murder qualified by treachery and evident
premeditation was filed against Edgar Dawaton on 11 March
1999. When first arraigned he pleaded not guilty,3 but during the
pre-trial on 7 May 1999, he offered to plead guilty to the lesser
offense of homicide but was rejected by the prosecution, hence,
the case proceeded to trial.
The prosecution presented as witnesses the very persons who
were with the accused and the victim during the incident, namely,
Domingo Reyes and Esmeraldo Cortez. The prosecution also
presented Generosa Tupaz, the mother of the victim, to prove the
civil liability of the accused.
The evidence for the prosecution: On 20 September 1998
Esmeraldo Cortez was entertaining visitors in his house in Sitio
Garden, Brgy. Paltic, Dingalan, Aurora. His brother-in-law Edgar
Dawaton and kumpadre Leonides Lavares dropped by at about
12:00 o'clock noon followed by Domingo Reyes shortly after. All
three (3) guests of Esmeraldo were residents of Sitio Garden.
They started drinking soon after. At about 3:00 o'clock in the
afternoon and after having consumed four (4) bottles of gin, they
went to the house of Amado Dawaton, Edgar's uncle, located
about twenty (20) meters away from Esmeraldo's house. They
stayed at the balcony of the house and continued drinking.
Amado Dawaton was not in.
Already drunk, Leonides decided to sleep on a papag or wooden
bench, lying down on his right side facing Domingo and Edgar
using his right hand for a pillow. Edgar, Domingo and Esmeraldo
continued drinking until they finished another bottle of gin.
At about 3:30 in the afternoon, twenty (20) minutes after
Leonides had gone to sleep, Edgar stood up and left for his
house. When he returned he brought with him a stainless knife
with a blade 2 to 3 inches long. Without a word, he approached
Leonides who was sleeping and stabbed him near the base of his
neck.4 Awakened and surprised, Leonides got up and blurted:
"Bakit Pare, bakit?"5 Instead of answering, Edgar again stabbed
Leonides on the upper part of his neck, spilling blood on
Leonides' arm.
Leonides attempted to flee but Edgar who was much bigger
grabbed the collar of his shirt and thus effectively prevented him
from running away. Edgar then repeatedly stabbed Leonides
who, despite Edgar's firm hold on him, was still able to move
about twenty (20) meters away from the house of Amado
Dawaton before he fell to the ground at the back of Esmeraldo's
house. But even then, Edgar still continued to stab him. Edgar
only stopped stabbing Leonides when the latter already expired.
Edgar then ran away towards the house of his uncle Carlito
Baras situated behind the cockpit.
Domingo and Esmeraldo were positioned a few meters away
from where Leonides was sleeping when he was initially
assaulted by Edgar. They were shocked by what happened but
other than pleading for Edgar to stop they were unable to help
Leonides.
Domingo left for his house soon after the stabbing started as he
did not want to get involved. Nonetheless he felt pity for Leonides
so he returned a few minutes later.
By then, Leonides was already dead and people had already
gathered at the site. The mayor who was in a nearby cement
factory arrived and instructed them not to go near the body. They
pointed to the direction where Edgar fled. Edgar was later
arrested at the house of his uncle, Carlito Baras, at Sitio Aves,
Brgy. Paltic, Dingalan.
Accused-appellant Edgar Dawaton was the sole witness for the
defense. He did not deny that he stabbed Leonides Lavares but
insisted that he was provoked into stabbing him. Edgar claimed
that the night prior to the stabbing incident, or on 19 September
1998, his uncle Armando Ramirez went to his house to welcome
his return from Cavite where he worked as a carpenter. They
started drinking gin at about 7:00 o'clock in the evening and
ended at 3:00 o'clock in the morning of the following day. He
slept and woke up at 6:00 o'clock in the morning of 20 September
1998.
Apparently, he did not have enough of the prior evening's
drinking orgy. He went to his uncle's house early that morning
and after his uncle bought two (2) bottles of gin they started
drinking again. Domingo Reyes arrived at around 7:30 in the
morning and joined them. Esmeraldo Cortez joined them about
12:00 o'clock noon and bought two (2) more bottles of gin. Later,
the group with the exception of Armando Ramirez transferred to
the house of Esmeraldo upon the latter's invitation and drank two
(2) more bottles of gin.
In Edgar's version of the stabbing incident, a drunk and angry
Leonides arrived at about 2:30 in the afternoon and demanded
that they - he and Edgar - return candles (magbalikan [tayo] ng
kandila).6 Leonides was godfather of a son of Edgar. Leonides
also cursed and threatened to hang a grenade on Edgar (P - t -
ng ina mo. Hintayin mo ako. Kukuha ako ng granada at sasabitan
kita!).7cräläwvirtualibräry
According to Edgar, he tried to calm down Leonides but the latter
insisted on going home purportedly to get a grenade. Alarmed
because he knew Leonides had a grenade, Edgar went home to
look for a bladed weapon. He already had a knife with him but he
thought it was short. Not finding another weapon, he returned to
Esmeraldo's house.
When he returned, Leonides was still in Esmeraldo's house and
had joined in the drinking. He sat opposite Leonides who
resumed his tirades against him.
Again Leonides started to leave for his house purportedly to get a
grenade. Afraid that Leonides would make good his threat, Edgar
held on to him and stabbed him. He did not know where and
exactly how many times he struck Leonides but he recalled doing
it three (3) times before his mind went blank (nablangko).8 Edgar
also claimed that he was in this mental condition when he left
Leonides and ran to the house of Carlito Baras. He did not know
that he had already killed Leonides, only that he stabbed him
thrice. He regained his senses only when he reached his uncle
Carlito's house.
Edgar further said that he sought his uncle's help so he could
surrender but he was told to wait because his uncle was then
taking a bath. It was while waiting for his uncle when the
policemen arrived to arrest him. He maintained that he voluntarily
went with them.
The medico-legal certificate dated 24 September 1998 issued by
Dr. Ernesto C. del Rosario9 showed that the victim sustained a
stab wound at the back and ten (10) stab wounds in front. He
also had slash wounds on his left hand and his tongue was cut
off. The immediate cause of death was determined to be
"Hypovolemic Shock due to hemorrhage, multiple stabbed (sic)
wounds."10cräläwvirtualibräry
On 20 October 1999 the parties entered into several stipulations
which were embodied in an Order.11 Specifically, they admitted
the veracity of the Sinumpaang Salaysay dated 21 September
1998 executed by SPO2 Ramil D. Gamboa and PO3 Gerry M.
Fabros,12 the police officers who arrested the accused; the
genuineness and due execution of the medico-legal certificate
issued by Dr. Ernesto C. del Rosario; and, the authenticity of the
certificate of death13 also issued by Dr. del Rosario. Thus, the
presentation of the arresting officers and Dr. del Rosario as
witnesses was dispensed with.
On 20 November 1999 the trial court convicted Edgar Dawaton of
murder qualified by treachery and sentenced him to death.
We affirm the conviction of accused-appellant; we however
modify the penalty imposed on him.
The conclusion that accused-appellant murdered Leonides
Lavares was sufficiently proved by the testimonies of prosecution
witnesses Domingo Reyes and Esmeraldo Cortez who both
witnessed the fatal stabbing. This was not refuted by the accused
himself who admitted that he stabbed the victim three (3) times
before his mind went blank and could no longer recall what he did
after that.
Treachery clearly attended the killing. The accused attacked the
victim while the latter was in deep slumber owing to the
excessive amount of alcohol he imbibed. We are not persuaded
by the version of the accused that the victim threatened to harm
him with a grenade and that it was only to prevent this from
happening that he was forced to stab Leonides. We defer instead
to the judgment of the trial court which gave more credence to
the version of the prosecution witnesses inasmuch as it was in a
better position to decide on the question of credibility, having
heard the witnesses themselves and observed their deportment
during trial.
According to the prosecution witnesses, the victim had no chance
to defend himself as he was dead drunk and fast asleep. He had
no inkling at all of what was going to happen to him since there
was no prior argument or untoward incident between him and the
accused. From all indications they were on friendly terms; as in
fact they were even kumpadres. No one knew nor expected that
when the accused momentarily excused himself, it was for the
purpose of looking for a knife, and without any warning, stabbing
the victim who was sleeping.
There is treachery when the attack is upon an unconscious victim
who could not have put up any defense whatsoever,14 or a
person who was dead drunk and sleeping on a bench and had no
chance to defend himself.15 Clearly, the attack was not only
sudden but also deliberately adopted by the accused to ensure
its execution without risk to himself.
The accused argues that trial court erred in imposing the death
penalty despite the attendance of mitigating and alternative
circumstances in his favor.16 He avers that he is entitled to the
mitigating circumstance of plea of guilty. We disagree. While the
accused offered to plead guilty to the lesser offense of homicide,
he was charged with murder for which he had already entered a
plea of not guilty. We have ruled that an offer to enter a plea of
guilty to a lesser offense cannot be considered as an attenuating
circumstance under the provisions of Art. 13 of The Revised
Penal Code because to be voluntary the plea of guilty must be to
the offense charged.17cräläwvirtualibräry
Furthermore, Sec. 2, Rule 116, of the Revised Rules of Criminal
Procedure requires the consent of the offended party and the
prosecutor before an accused may be allowed to plead guilty to a
lesser offense necessarily included in the offense charged. We
note that the prosecution rejected the offer of the accused.
Nor can the accused avail of the mitigating circumstance of
voluntary surrender as he himself admitted that he was arrested
at his uncle's residence.18 The following elements must be
present for voluntary surrender to be appreciated: (a) the
offender has not been actually arrested; (b) the offender
surrendered himself to a person in authority, and, (c) the
surrender must be voluntary.19cräläwvirtualibräry
Resorting to sophistry, the accused argues that he was not
arrested but "fetched" as he voluntarily went with the policemen
when they came for him. This attempt at semantics is futile and
absurd. That he did not try to escape or resist arrest after he was
taken into custody by the authorities did not amount to voluntary
surrender. A surrender to be voluntary must be spontaneous,
showing the intent of the accused to submit himself
unconditionally to the authorities, either because he
acknowledges his guilt or because he wishes to save them the
trouble and expense necessarily included in his search and
capture.20 It is also settled that voluntary surrender cannot be
appreciated where the evidence adduced shows that it was the
authorities who came looking for the
accused.21cräläwvirtualibräry
Moreover, the evidence submitted by the prosecution belies the
claim of the accused that he intended to submit himself to the
authorities. The joint affidavit of the arresting officers, the veracity
of which was admitted by the parties and evidenced by a 20
October 1999 Order of the trial court, revealed that they chanced
upon the accused trying to escape from the rear of the cockpit
building when they came looking for him.22cräläwvirtualibräry
Similarly, there is no factual basis to credit the accused with the
mitigating circumstance of outraged feeling analogous or
similar23 to passion and obfuscation.24 Other than his self-serving
allegations, there was no evidence that the victim threatened him
with a grenade. Domingo Reyes and Esmeraldo Cortez testified
that there was no prior altercation or disagreement between
Edgar and Leonides during the drinking spree, and they did not
know of any reason for Edgar's hostility and violence. On the
contrary, Esmeraldo Cortez even recalled seeing the two (2) in a
playful banter (lambingan) during the course of their
drinking25 indicating that the attack on the accused was
completely unexpected.
The accused would want us to reconsider the penalty imposed on
him on account of his not being a recidivist. He contends that an
appreciation of this factor calls for a reduction of the penalty.
We are not persuaded. Recidivism is an aggravating
circumstance the presence of which increases the penalty. The
converse however, that is, non-recidivism, is not a mitigating
circumstance which will necessarily reduce the penalty.
Nonetheless, we hold that the trial court erred in not appreciating
the alternative circumstance of intoxication in favor of the
accused. Under Art. 15 of The Revised Penal Code, intoxication
of the offender shall be considered as a mitigating circumstance
when the offender commits a felony in a state of intoxication, if
the same is not habitual or subsequent to the plan to commit said
felony. Otherwise, when habitual or intentional, it shall be
considered as an aggravating circumstance.
The allegation that the accused was drunk when he committed
the crime was corroborated by the prosecution witnesses. The
accused and his drinking companions had consumed four (4)
bottles of gin at the house of Esmeraldo Cortez, each one
drinking at least a bottle.26 It was also attested that while the four
(4) shared another bottle of gin at the house of Amado Dawaton,
it was the accused who drank most of its contents.27 In addition,
Esmeraldo testified that when Edgar and Leonides arrived at his
house that noon, they were already intoxicated.28 There being no
indication that the accused was a habitual drunkard or that his
alcoholic intake was intended to fortify his resolve to commit the
crime, the circumstance of intoxication should be credited in his
favor.
Consequently, we find that the trial court erroneously imposed
the penalty of death. The accused was charged with murder for
which the law provides a penalty of reclusion perpetua to death.
Under Art. 63, par. 3, of The Revised Penal Code, in all cases in
which the law prescribes a penalty composed of two (2)
indivisible penalties, such as in this case, when the commission
of the act is attended by a mitigating circumstance and there is
no aggravating circumstance, the lesser penalty shall be applied.
Since no aggravating circumstance attended the killing but there
existed the mitigating circumstance of intoxication, the accused
should be sentenced only to the lesser penalty of reclusion
perpetua.
The trial court correctly ordered the accused to pay civil
indemnity in the amount of P50,000.00 to the heirs of the victim
without need of proof other than the fact that a crime was
committed resulting in the death of the victim and that the
accused was responsible therefor.29 The heirs are also entitled to
moral damages pursuant to Art. 2206 of the New Civil Code on
account of the mental anguish which they suffered, and the
amount of P50,000.00 is considered reasonable according to
existing jurisprudence.30cräläwvirtualibräry
WHEREFORE, the assailed Decision of the court a quo finding
the accused EDGAR DAWATON guilty of MURDER qualified by
treachery is AFFIRMED with the modification that the penalty is
reduced from death to reclusion perpetua. The accused is
ordered to pay the heirs of Leonides Lavares P50,000.00 in civil
indemnity and P50,000.00 in moral damages.

SO ORDERED.

Davide, Jr., C.J., Puno, Vitug, Mendoza, Panganiban,

Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Morales, and Callejo, Sr., JJ.,
concur.
Emilio Cimafranca vs. Sandiganbayan G.R. No. 94408, The following facts have been sufficiently established:
February 14, 1991 Accused Emiliano Cimafranca, Jr. was the Provincial
Fisheries Inspector of the Province of Bohol from 1980
Republic of the Philippines until his services were first terminated on May 2, 1986. He
SUPREME COURT was reappointed as Fishery Aide effective November 25,
Manila 1987 and again separated from the service on March 15,
1988. (Record, pp. 52 & 54). As a Fisheries Inspector, he
EN BANC was issued on July 12, 1985, a revolver (Smith and
Wesson, Cal. .38, 4" barrel, U.S. make SN 748198),
G.R. No. 94408 February 14, 1991 marked as Exhibit K, valued at P350.00. On September
30, 1985, he was also issued a Briggs and Stratton
EMILIANO CIMAFRANCA, JR., petitioner, engine, 10 HP with Serial Number 02356, valued at
vs. P8,475.00. (Exhibit G).
SANDIGANBAYAN (Second Division) and PEOPLE OF THE
PHILIPPINES, respondents. On May 2, 1986, when his temporary appointment expired,
accused was advised by the Provincial Governor of Bohol
Caballero, Calub, Aumentado & Associates Law Office for to return his property accountabilities. On June 18, 1986,
petitioner. Eufronio M. Pizzaras, Officer-In-Charge of the Office of the
treasurer of Tagbilaran, Bohol, also wrote him a follow up
letter to return the revolver and engine. Although he
received the letter, accused did not comply. (TSN., p. 12,
July 20, 1989).
GANCAYCO, J.:
On July 25, 1986, Teresita M. Sanchez, Provincial Auditor
The question addressed by this petition is whether or not an of Bohol, issued Office Order No. 86-29 directing Atty.
accountable public officer may be criminally liable for Toribio S. Quiwag, Legal Officer III, and Mrs. Maria C.
malversation of public property when he fails to return or produce Longjas Auditor I, to conduct a property audit on ten
the same upon demand, although after the filing of the government officials and employees whose names were
information and during the trial he returned the property to the mentioned therein. Included in the list is the accused
government. Emiliano Cimafranca, Jr. (Exhibit A). Pursuant to the office
order, Mrs. Longjas and Atty. Quiwag conducted a
The facts as found by the respondent Sandiganbayan in its property audit on July 26, 1986. They found out that
questioned decision dated June 26, 1990 are as follows: accused, although already separated from the service on
May 2, 1986, had not yet settled his property
 accountabilities, despite demands made upon him by the
Officer-In-Charge of the City Treasurer's Office. On July
28, 1986, Atty. Quiwag sent a demand letter to the
Provincial Treasurer of Bohol, for the production of the
properties issued to the aforementioned government
officials and employees. (Exhibit C).
For failure of accused to have duly forthcoming the public
properties of which he was accountable upon demand by
a duly authorized officer, he was charged of Malversation
of Public Property, defined and penalized under Article
217 of the Revised Penal Code.1
Upon arraignment, petitioner pleaded not guilty to the information
after which the trial proceeded, and particularly on July 14, 1989,
Mr. Abraham Campos, in-charge of the Record Section of
Tagbilaran City, received from the Provincial Treasurer, the
revolver and engine which are the subject matter of this
prosecution which were returned by petitioner.
After the trial on the merits, the respondent court rendered a
decision on June 26, 1990, convicting the petitioner of the
offense charged in this manner:
WHEREFORE, accused Emiliano Cimafranca, Jr., is
hereby found GUILTY beyond reasonable doubt of the
crime of Malversation of Public Property defined and
penalized under Article 217 of the Revised Penal Code,
and appreciating in his favor the mitigating circumstance of
voluntary restitution or return of the properties malversed,
analogous to voluntary surrender, he is sentenced to an
indeterminate penalty ranging from six (6) years, and one
(1) day of prision mayor, as minimum, to ten (10) years,
and one (1) day of prision mayor, as maximum; to pay a
fine of P8,825.00, equivalent to the total value of the
properties embezzled; to suffer perpetual special
disqualification; to indemnify the Philippine Government in
the amount of P8,475.00, representing the value of the
Briggs and Stratton engine only, and to pay the costs.
Upon finality of this decision, the Deputy Clerk of Court
assigned to the Second Division of this Court is ordered to
return the Smith & Wesson .38 Caliber Revolver, with
Serial No. 748198, involved in this case, to the Provincial
Treasurer of Bohol or his duly authorized representative,
after proper Identification and receipt.
SO ORDERED.2
Hence, this petition for review on certiorari predicated on the
following grounds:
I — THE RESPONDENT SANDIGANBAYAN ERRED IN
CONVICTING THE ACCUSED OF THE CRIME OF
MALVERSATION OF PUBLIC PROPERTY UNDER
ARTICLE 217 OF THE REVISED PENAL CODE.
II — THE RESPONDENT SANDIGANBAYAN ERRED IN
NOT HAVING GIVEN CREDENCE TO THE CREDIBILITY
OF THE ACCUSED.
III — THE RESPONDENT SANDIGANBAYAN ERRED IN
NOT ABSOLVING THE ACCUSED.3
The petition is devoid of merit.
The main thrust of the defense is that the public property
allegedly malversed by petitioner was returned by him during the
trial and this entitles him to an acquittal. While he admitted having
received the engine and revolver for his use as provincial
fisheries inspector while patrolling the high seas against illegal
fishing, he testified that after he finished patrolling he placed the
engine at the back of the convent but it was stolen so he was not
able to return the same upon demand. After a long search he
finally found it at the side of the market but it was no longer
usable.
Similarly, he alleged that the revolver fell from his waist into the
sea while patrolling the high seas.1âwphi1 When he received a
letter of demand to return said property on May 2, 1987, he hired
sea divers to look for the gun. He executed an affidavit of loss on
July 6, 1987.4
After two years of diligent search he found the gun still in good
condition. It did not become rusty as it stayed under the seawater
and was not exposed to the air. He and his son reblued it.
Under Article 217 of the Revised Penal Code the offense of
malversation is defined and penalized as follows:
ART. 217. Malversation of public funds or property. –– Any
public officer who, by reason of the duties of his office, is
accountable for public funds or property, shall appropriate
the same, or shall take or misappropriate or shall consent,
or through abandonment or negligence, shall permit any
other person to take such public funds or property, wholly
or partially, or shall otherwise be guilty of the
misappropriation or malversation of such funds or
property, shall suffer:
1. The penalty of prision correccional in its medium
and maximum periods, if the amount involved in the
misappropriation or malversation does not exceed
two hundred pesos.
2. The penalty of prision mayor in its minimum and
medium periods, if the amount involved is more
than two hundred pesos but does not exceed six
thousand pesos.
3. The penalty of prision mayor in its maximum
period to reclusion temporal in its minimum period,
if the amount involved is more than six thousand
pesos but is less than twelve thousand pesos.
4. The penalty of reclusion temporal in its medium
and maximum periods, if the amount involved is
more than twelve thousand pesos but is less than
twenty-two thousand pesos.
If the amount exceeds the latter, the penalty shall
be reclusion temporal in its maximum period to reclusion
perpetua.
In all cases, persons guilty of malversation shall also suffer
the penalty of perpetual special disqualification and a fine
equal to the amount of the funds malversed or equal to the
total value of the property embezzled.
The failure of a public officer to have duly forthcoming any
public funds or property with which he is chargeable, upon
demand by any duly authorized officer, shall be prima
facie evidence that he has put such missing funds or
property to personal uses. (As amended by Rep. Act No.
1060, approved June 12, 1954.)
 The elements of the offense of malversation are —
a) That the offender be a public officer;
b) That he had the custody or control of funds or
property by reason of the duties of his office;
c) That those funds or property were public funds or
property for which he was accountable;
d) And, that he appropriated, took, misappropriated
or consented or, through abandonment or
negligence, permitted another person to take them.
Petitioner admits that the first three elements are present. He,
however, contends that the fourth element had not been
established as in fact he returned the property during the trial.
The Court is not persuaded.
Under the last paragraph of Article 217 of the Revised Penal
Code above reproduced, the failure of a public officer to have
duly forthcoming any public funds or property with which he is
chargeable, upon demand by any duly authorized officer, shall
be prima facie evidence that he has put such missing funds or
property to personal uses. The burden is on the accused to
overcome this presumption.
In the present case the petitioner failed to overturn this prima
facie evidence of his guilt.1âwphi1
Firstly, when his temporary appointment in the government
expired on May 2, 1986, he was advised by the Provincial
Governor of Bohol to return his property accountabilities but he
failed to do so. On June 18, 1986, Mr. Pizarras of the Office of
the Treasurer of Tagbilaran wrote a follow-up letter asking him to
return the revolver and engine, which he received and yet, he did
not comply with the requirement or reply to the letter.
Secondly, on July 28, 1986, Atty. Quiwag of the Provincial
Auditor's Office sent a demand letter to the Provincial Treasurer
of Bohol to produce said missing property,5 and the latter made
demands on petitioner to return the property but to no avail. In
none of these instances did petitioner reveal the alleged loss of
the revolver and theft of the engine.
Thirdly, the version of petitioner as to why he was not able to
immediately return the property, as correctly observed by the
respondent court, is difficult to believe. He failed to report the
alleged loss of government property to the proper authorities.
While he claimed to have reported the loss of the engine to the
police, said matter was not reflected in the police blotter. He
presented an affidavit of P/Cpl. Crispin Tubayan confirming said
reports6 but petitioner did not present Tubayan as a witness as
the affidavit in itself is hearsay. And although petitioner also
testified that he reported the loss of the revolver to the Provincial
Governor, this fact was not even reflected in the affidavit of loss
he executed. Moreover, he did not ask nor did he present the
Governor to testify in order to confirm his statement.
Fourthly, it took him years to recover the engine and gun, and
this delay makes his tale incredible more so as it is
uncorroborated.
Since petitioner failed to overturn the prima facie evidence of guilt
by his non-production of the government property upon previous
repeated demands, and as he produced it only much later, that
is, after several years, the only logical conclusion is that he
actually misappropriated the property and/or otherwise allowed
other persons to take and appropriate the same. Worst still, when
the engine was returned, it was already scrap and the revolver
was rusty and had to be reblued. The crime of malversation had
been consummated when the property were belatedly returned.
This Court has made the consistent pronouncement that the
return of the funds malversed is not a defense and will not be an
exempting circumstance nor a ground for extinguishing the
criminal liability of the accused.7 At best it can be a mitigating
circumstance.8
respondent court, to eleven (11) years and six (6) months
of prision mayor as maximum.
The fine of P8,825.00 imposed is within the range prescribed by
Article 217, which is the total value of the property malversed,
since the engine returned was no longer in its original good
condition, but scrap.
WHEREFORE, with the above modification as to the penalty, the
judgment subject of the petition is AFFIRMED in all other
respects, with costs against petitioner.

The same principle should apply when the subject matter of the SO ORDERED.
malversation is public property. However, when as in this case, it
took the petitioner several years before he returned the Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz,
government property, such circumstance cannot be considered a Paras, Feliciano, Padilla, Bidin, Sarmiento, Griño-Aquino,
special mitigating circumstance analogous to voluntary surrender, Medialdea and Regalado, JJ., concur.
as the trial court did credit to the petitioner. Said government Davide, Jr., J., took no part.
property appear to be under the control and possession of
petitioner all the time. There was no reason why he could not
return the same promptly if not soonest to the government. The
much delayed return of the property must be a desperate act and
afterthought of petitioner when he realized that all possible hope
of exoneration was lost during the trial.

Under Article 217 of the Revised Penal Code the penalty

of prision mayor in its maximum period to reclusion temporal in its
minimum period is imposed if the amount involved is more than
P6,000.00 but is less than P12,000.00. As there are no modifying
circumstances attending the commission of the offense and
applying the Indeterminate Sentence Law, the penalty that should
be imposed on petitioner is imprisonment of six (6) years and one
(1) day of prision mayor as minimum, as correctly imposed by