Republic of the Philippines

5TH Judicial Region

3rd MUNICIPAL CIRCUIT TRIAL COURT
Panganiban-Viga-Bagamanoc
Panganiban, Catanduanes

PEOPLE OF THE
PHILIPPINES, Criminal Case No. V-1256
Plaintiff,

- versus - - for -

JOSE T. DOMINGUEZ JR. GRAVE THREATS

Accused
.
X--------------------
x

COUNTER AFFIDAVIT
(with Motion to Dismiss)

I, JOSE T. DOMINGUEZ JR., of legal age, Filipino, married, and

a resident of Asuncion, Viga, Catanduanes, having been duly sworn in
accordance with law, hereby depose and state:

1. That I am the accused in the above-captioned case;

2. That I categorically and vehemently deny all the material

allegations in the complaint and its supporting affidavits for being
false, perverse, fabricated, and an overstatement of what truly
transpired during the incident in the afternoon of May 25, 2014. I
did not intrude on complainant AMOR BORAGAY SR. and his
group, and instantly provoke and punch him. The truth is that I
went calmly to complainant, even put his hand on my forehead in
respect for his being an elderly, and confronted him about the
report he’s spreading that I was driving, accordingly, without a
professional driver’s license. But to my surprise and dismay, he
took from his wallet a one hundred peso (P100.00) bill, handed it
to me and sarcastically said, “LIMOS KO!” Shocked and insulted
about what he has just said and done, my temper rose
unexpectedly so I responded and asked him, for what? He pulled
back his statement and insultingly said that what he means is that
he’s handing me the money for me to buy their alcoholic drinks.
But, I heard him said clearly, and I asked myself why he would
direct me to buy their drinks if he’s with a group from whom
anyone could do such favor. Still in the heat of anger, I went home
and took my bolo, returned to the place and uttered challenging
 words upon him out of anger. But I did not persist in the idea
involved in my threat as I allowed myself to be pacified especially
by our Punong Barangay. Nothing else happened thereafter. And
contrary to complainant and his witnesses’ allegation, never did I
attempt to climb the steel gate to get inside the premises.

3. The acts punishable as grave threats are: (1) by threatening

another with the infliction upon his person, honor or property or
that of his family of any wrong amounting to a crime and
demanding money or imposing other condition, even though not
unlawful, and the offender attained his purpose; (2) by making
such threat without the offender attaining his purpose; and (3)
by threatening another with the infliction upon his person, honor
or property or that of his family of any wrong amounting to a
crime, the threat not being subject to a condition. The first and
second forms of grave threats are absolutely not applicable
here as there appears clearly that “no demand for money or
imposition of any condition” is present in the acts alleged in the
complaint and its supporting documents. The third form of
grave threats is also not applicable in this case, as this form
requires that the “threats must be serious in the sense that
it is deliberate and that the offender persists in the idea
involved in his threats". The threats of the third form are
those made with the deliberate purpose of creating in the mind
of the person threatened the belief that the threats will be
carried into effect (U.S. vs. Paguirigan, 14, Phil. 453).

Moreover, the threat to fall on the third form should not be

made in the heat of anger, because such threat is punished not
as grave threats under Art. 282, but only as other light threats
under Art. 285, par. 2, which provides that, “the penalty of
arresto menor in its minimum period or a fine not exceeding
200 pesos shall be imposed upon: x x x Any person who, in the
heat of anger, shall orally threaten another with some harm
(not) constituting a crime, and who by subsequent acts shows
that he did not persist in the idea involved in his threat. The
phrase “shall orally threaten another with some harm not
constituting a crime” is employed in paragraph 2 of Article 285.
But there is accordingly a mistake in the English translation of
the law. The word "not" should, therefore, be eliminated from
the statute – in English. Hence, a person who, in the heat of
anger, threatened to kill another without persisting in the idea
involved in his threat is liable under paragraph 2 of Art. 285
(People vs. Untalan, 1 C.A. Rep. 243). In another case, in a
quarrel between the wife of the accused and the offended party,
the accused took part, threatening to kill the offended party.
The accused went home to get his revolver and returned to the
place, looking for the offended party, who in the meantime had
 concealed himself in his house. Later, the accused called at the
house of the brother of the offended party and implored pardon,
alleging that the threat was uttered without premeditation. It
was held that the offense was light threat (U.S. vs. Estrada, 10
Phil. 583), because the accused by subsequent acts showed
that he did not persist in the idea involved in his threat. Also in
People vs. Padayhag, 36 O.G. 3265, May 15, 1937, in a heated
argument between him and the offended party, the accused
said that he would cut her to pieces, making aggressive
gestures and trying to attack her with a bolo. A person present
caught his wrist and held it up tightly. Nothing more happened.
The accused was guilty of other light threats [only] under Art.
285, par. 2.

Here, I had no intention or even premeditation to carry into

effect the threats that I only uttered in the heat of anger. My
subsequent conduct clearly showed that I did not persist in the
idea involved in the threat. Otherwise, I would not have asked
him anymore to get out of the premise. I could have pursued
him then and there without warning.

The circumstances clearly show that there was no grave threat

committed as the threat, if any, was uttered in the heat of anger
and my subsequent acts show that I did not persist in the idea
involved in the threat.

4. Moreover, the instant complaint must be dismissed outright for

failure to comply properly with the condition precedent of prior
referral to the barangay Lupon for conciliation which is required in
this case, considering that although a seemingly regularly
issued CERTIFICATE TO FILE ACTION is attached to the
complaint, contrary to what has been certified to therein, there
had been no actual confrontation between us before the
barangay as, for two times, complainant willfully refused to
appear and/or confront me personally in the presence of the
Punong Barangay, for everytime I arrived at the barangay hall
he would immediately leave the place after he signed on the
record book. Copies of barangay records of the two scheduled
hearings dated May 30, 2014 and June 23, 2014, noting to this
effect are attached hereto as ANNEXES “1” and “1-A”,
respectively;

Also, he insisted on the outright issuance of the CERTIFICATE

TO FILE ACTION notwithstanding the absence of such actual
confrontation, and even harassed the Punong Barangay when
the latter refused to issue the same by filing a clearly
unfounded administrative complaint for GROSS NEGLIGENCE,
DERELICTION OF DUTY AND/OR ABUSE OF AUTHORITY
 against the Punong Barangay. And he in fact succeeded in
having said CERTIFICATE TO FILE ACTION issued by merely
using the administrative case as a tool for compromise in
exchange for the dismissal of said administrative case. Copy of
the Certification from the Office of the Sangguninang Bayan
attesting to the dismissal of the admin case on condition that
the punong barangay shall issue the certificate to file action is
even attached to complaint and still attached hereto as ANNEX
“1”;

Such willful refusal of complainant to personally appear before

the Punong Barangay notwithstanding my presence and
willingness for mediation conference, which resulted in the
failure to refer us to the Lupon for subsequent conciliation,
should bar him from seeking judicial recourse for the same
cause of action.

5. Thus, I execute this affidavit to attest to the truth of the foregoing,

SPECIFICALLY, FOR THE DISMISSAL OF THE PRESENT
COMPLAINT FOR NOT HAVING COMPLIED WITH THE
CONDITION PRECEDENT AND FOR UTTER LACK OF MERIT.

IN WITNESS WHEREOF, I have set my hand this 24 th day of

October, 2014 at Virac, Catanduanes, Philippines.

JOSE T. DOMINGUEZ JR.

Accused

SUBSCRIBED AND SWORN to before me this 24th day of

October, 2014 at Virac, Catanduanes. I hereby certify that I have
examined the Affiant and that I am fully satisfied that he has voluntarily
executed and understood the contents of this Affidavit.

MERLIN I. ABADA
Public Attorney I
Pursuant to R.A. 9406

Copy Furnished:

Mr. AMOR T. BORAGAY SR.

San Pedro, Viga, Catanduanes