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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

L-20089 December 26, 1964

BEATRIZ P. WASSMER, plaintiff-appellee, vs. FRANCISCO X. VELEZ, defendant-appellant. Jalandoni & Jamir for defendant-appellant. Samson S. Alcantara for plaintiff-appellee. BENGZON, J.P., J.: The facts that culminated in this case started with dreams and hopes, followed by appropriate planning and serious endeavors, but terminated in frustration and, what is worse, complete public humiliation. Francisco X. Velez and Beatriz P. Wassmer, following their mutual promise of love, decided to get married and set September 4, 1954 as the big day. On September 2, 1954 Velez left this note for his bride-to-be: Dear Bet Will have to postpone wedding My mother opposes it. Am leaving on the Convair today. Please do not ask too many people about the reason why That would only create a scandal. Paquing But the next day, September 3, he sent her the following telegram: NOTHING CHANGED REST ASSURED RETURNING VERY SOON APOLOGIZE MAMA PAPA LOVE . PAKING Thereafter Velez did not appear nor was he heard from again. Sued by Beatriz for damages, Velez filed no answer and was declared in default. Plaintiff adduced evidence before the clerk of court as commissioner, and on April 29, 1955, judgment was rendered ordering defendant to pay plaintiff P2,000.00 as actual damages; P25,000.00 as moral and exemplary damages; P2,500.00 as attorney's fees; and the costs. On June 21, 1955 defendant filed a "petition for relief from orders, judgment and proceedings and motion for new trial and reconsideration." Plaintiff moved to strike it cut. But the court, on August 2, 1955, ordered the parties and their attorneys to appear before it on August 23, 1955 "to explore at this stage of the proceedings the possibility of arriving at an amicable settlement." It added that should any of them fail to appear "the petition for relief and the opposition thereto will be deemed submitted for resolution." On August 23, 1955 defendant failed to appear before court. Instead, on the following day his counsel filed a motion to defer for two weeks the resolution on defendants petition for relief. The counsel stated that he would confer with defendant in Cagayan de Oro City the latter's residence on the possibility of an amicable element. The court granted two weeks counted from August 25, 1955. Plaintiff manifested on June 15, 1956 that the two weeks given by the court had expired on September 8, 1955 but that defendant and his counsel had failed to appear. Another chance for amicable settlement was given by the court in its order of July 6, 1956 calling the parties and their attorneys to appear on July 13, 1956. This time. however, defendant's counsel informed the court that chances of settling the case amicably were nil.

On July 20, 1956 the court issued an order denying defendant's aforesaid petition. Defendant has appealed to this Court. In his petition of June 21, 1955 in the court a quo defendant alleged excusable negligence as ground to set aside the judgment by default. Specifically, it was stated that defendant filed no answer in the belief that an amicable settlement was being negotiated. A petition for relief from judgment on grounds of fraud, accident, mistake or excusable negligence, must be duly supported by an affidavit of merits stating facts constituting a valid defense. (Sec. 3, Rule 38, Rules of Court.) Defendant's affidavit of merits attached to his petition of June 21, 1955 stated: "That he has a good and valid defense against plaintiff's cause of action, his failure to marry the plaintiff as scheduled having been due to fortuitous event and/or circumstances beyond his control." An affidavit of merits like this stating mere conclusions or opinions instead of facts is not valid. (Cortes vs. Co Bun Kim, L-3926, Oct. 10, 1951; Vaswani vs. P. Tarrachand Bros., L15800, December 29, 1960.) Defendant, however, would contend that the affidavit of merits was in fact unnecessary, or a mere surplusage, because the judgment sought to be set aside was null and void, it having been based on evidence adduced before the clerk of court. In Province of Pangasinan vs. Palisoc, L-16519, October 30, 1962, this Court pointed out that the procedure of designating the clerk of court as commissioner to receive evidence is sanctioned by Rule 34 (now Rule 33) of the Rules of Court. Now as to defendant's consent to said procedure, the same did not have to be obtained for he was declared in default and thus had no standing in court (Velez vs. Ramas, 40 Phil. 787; Alano vs. Court of First Instance, L-14557, October 30, 1959). In support of his "motion for new trial and reconsideration," defendant asserts that the judgment is contrary to law. The reason given is that "there is no provision of the Civil Code authorizing" an action for breach of promise to marry. Indeed, our ruling in Hermosisima vs. Court of Appeals (L-14628, Sept. 30, 1960), as reiterated in Estopa vs. Biansay (L-14733, Sept. 30, 1960), is that "mere breach of a promise to marry" is not an actionable wrong. We pointed out that Congress deliberately eliminated from the draft of the new Civil Code the provisions that would have it so. It must not be overlooked, however, that the extent to which acts not contrary to law may be perpetrated with impunity, is not limitless for Article 21 of said Code provides that "any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage." The record reveals that on August 23, 1954 plaintiff and defendant applied for a license to contract marriage, which was subsequently issued (Exhs. A, A-1). Their wedding was set for September 4, 1954. Invitations were printed and distributed to relatives, friends and acquaintances (Tsn., 5; Exh. C). The bride-to-be's trousseau, party drsrses and other apparel for the important occasion were purchased (Tsn., 7-8). Dresses for the maid of honor and the flower girl were prepared. A matrimonial bed, with accessories, was bought. Bridal showers were given and gifts received (Tsn., 6; Exh. E). And then, with but two days before the wedding, defendant, who was then 28 years old,: simply left a note for plaintiff stating: "Will have to postpone wedding My mother opposes it ... " He enplaned to his home city in Mindanao, and the next day, the day before the wedding, he wired plaintiff: "Nothing changed rest assured returning soon." But he never returned and was never heard from again. Surely this is not a case of mere breach of promise to marry. As stated, mere breach of promise to marry is not an actionable wrong. But to formally set a wedding and go through all the above-described preparation and publicity, only to walk out of it when the matrimony is about to be solemnized, is quite different. This is palpably and unjustifiably contrary to good customs for which defendant must be held answerable in damages in accordance with Article 21 aforesaid. Defendant urges in his afore-stated petition that the damages awarded were excessive. No question is raised as to the award of actual damages. What defendant would really assert hereunder is that the award of moral and exemplary damages, in the amount of P25,000.00, should be totally eliminated. Per express provision of Article 2219 (10) of the New Civil Code, moral damages are recoverable in the cases mentioned in Article 21 of said Code. As to exemplary damages, defendant contends that the same could not be adjudged against him because under Article 2232 of the New Civil Code the condition precedent is that "the defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner." The argument is devoid of merit as under the above-narrated circumstances of this case defendant clearly acted in a "wanton ... , reckless [and] oppressive manner." This Court's opinion, however, is that considering the particular circumstances of this case, P15,000.00 as moral and exemplary damages is deemed to be a reasonable award. PREMISES CONSIDERED, with the above-indicated modification, the lower court's judgment is hereby affirmed, with costs. Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala, Makalintal, and Zaldivar, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-24918 March 20, 1968

FELIX DE VILLA, plaintiff-appellee, vs. ANACLETO TRINIDAD, ETC., ET AL., defendants, DEVELOPMENT BANK OF THE PHILIPPINES and MARIANO S. TRINIDAD, defendants-appellants. Jesus A. Avancea and Hilario G. Orsolino for defendant-appellant Development Bank of the Philippines. Gaudioso Tena for defendant-appellant Mariano S. Trinidad. Gonowon & Estrella for plaintiff-appellee. BENGZON, J.P., J.: Cesario Fabricante owned 5,724,415 square meters of land designated as Lot No. 9, Plan PSU, located in Sitio Salog, Barrio San Agustin, Municipality of Iriga, Camarines Sur, covered by Transfer Certificate of Title No. 50, decree No. 86989, issued in his name. To secure a loan of P150,000, Japanese currency, he mortgaged on April 18, 1944 this land, together with another lot, 1 in favor of Felix de Villa to whom he surrendered his duplicate certificate, and with whom it remained until it was lost. The mortgage was for a period of four years, redeemable within two years thereafter. On November 3, 1945, Cesario Fabricante petitioned 2 the Court of First Instance of Camarines Sur for the issuance of a new duplicate of Transfer Certificate of Title No. 50 upon the alleged ground that his duplicate was lost. Felix de Villa, the mortgage creditor was not notified. The petition was granted on November 10, 1945, and a new duplicate certificate of Transfer Certificate of Title No. 50, was issued to Fabricante. 3 Several days after, on November 27, 1945, Fabricante sold the land for P10,000 to Eustaquio Palma who, on the same day, secured in his name Transfer Certificate of Title No. 12 covering said lot. 4 In 1946, to secure two loans of P10,000 each, Palma mortgaged the property covered by Transfer Certificate of Title No. 12 in favor of the Agricultural and Industrial Bank, which later became the Rehabilitation Finance Corporation and is now the Development Bank of the Philippines (DBP). When Palma failed to pay the loan, DBP foreclosed the mortgage extrajudicially pursuant to Act No. 3135 and, as highest bidder at the public auction held on April 17, 1951, bought the land and possessed it by virtue of a writ of possession issued on September 26, 1951 in its favor. Later, it obtained Transfer Certificate of Title No. 1115 covering said land. On October 11, 1951, Palma assigned his right of redemption to Anacleto Trinidad who, though he failed to pay, was allowed by the DBP later to buy the land in consideration of P27,005.11 payable on installments. 5 Trinidad then took possession of the land. Meanwhile, Felix de Villa, having lost the duplicate of Transfer Certificate of Title No. 50 surrendered to him by Fabricante and learning that the original was lost in the Register of Deeds, filed before the Court of First Instance of Camarines Sur, 6 on June 12, 1948 a petition to reconstitute Transfer Certificate of Title No. 50, pursuant to Republic Act No. 26, in favor of Cesario Fabricante with the annotation of the mortgage in his favor as was allegedly contained in the original lost. 7 After hearing, notice of which was served on Fabricante, the Court of First Instance ordered 8 the reconstitution, with the annotation of the mortgage in De Villa's favor. Said reconstitution was based on the photostatic copy of the deed of mortgage 9 in which the copy of Transfer Certificate of Title No. 50 appeared. Seven days later, the Register of Deeds moved for reconsideration and cancellation of the orders of reconstitution on the ground that Transfer Certificate of Title No. 50 was found intact in the office but was already cancelled by Transfer Certificate of Title No. 12 in the name of Eustaquio Palma who had mortgaged the same to the Agricultural and Industrial Bank. 10 The Register of Deeds also pointed out that in Transfer Certificate of Title No. 50, was not annotated the mortgage alleged by Felix de Villa. 11 From the records of the hearing of the motion for reconsideration, 12 it appears that the Transfer Certificate of Title found to be "intact" designated the land to be Lot No. 2 which certificate originated from Original Certificate of Title No. 34. The title sought to be reconstituted covered Lot No. 9 originating from Original Certificate of Title No. 183. The Court of First Instance denied the motion for reconsideration on February 26, 1949, ruling that

Transfer Certificate of Title No. 50 which was found to be "intact" in the Registrar's office covered Lot No. 2 and originated from Original Certificate of Title No. 34 and was therefore different from the title certificate sought to be reconstituted, which covered Lot No. 9 and originated from Original Certificate of title No. 183. Thus, reconstituted Transfer Certificate of Title No. RT-29 (50) was issued in the name of Cesario Fabricante with the mortgage in De Villa's favor annotated thereon. 13 When Fabricante failed to redeem the land, De Villa foreclosed the mortgage 14 and bought the land in public auction as highest bidder. He obtained a writ of possession in his favor 15 on January 6, 1961 and took possession of the land three days later from the incumbent possessor, Anacleto Trinidad. On January 30, 1961 De Villa secured Transfer Certificate of Title No. 3347 in his name 16 and Transfer Certificate of Title No. RT-29 (50) was cancelled. Subsequently, Anacleto Trinidad filed a forcible entry case against Felix de Villa 17 resulting in the issuance of a writ of preliminary injunction by the Justice of the Peace of Iriga against De Villa and in his consequent dispossession of the property in favor of Anacleto Trinidad who, since March 2, 1961, repossessed the land. 18 On January 26, 1962, Felix de Villa filed the present complaint in the Court of First Instance of Camarines Sur against Anacleto Trinidad for declaration of ownership, recovery of the land, and payment of P500 a day the value of products allegedly being received by Trinidad as well as P10,000 worth of abaca plants alleged to have been improperly cut, and the costs of the suit. Later, the complaint was amended to include the Development Bank of the Philippines.
19

In answer, Anacleto Trinidad alleged his sale 20 from DBP, which had Transfer Certificate of Title No. 1115 in its favor, and his possession of the land by virtue thereof, since December 29, 1951, until De Villa dispossessed him of it; that De Villa's claim is barred by estoppel and res judicata, as the issue was already decided in Special Proceeding No. 258; that the Transfer Certificate of Title No. 3347 of De Villa was null and void. As a counterclaim he alleged the purchase price of the land which was P27,005.11; P60,000 spent in planting abaca, P35,000 for coconuts, P2,000 for buildings, P1,500 as settlement of squatters' claim, P1,200 for relocation, P8,000 for taxes or a total of P134,705.11; that when the plaintiff took possession, the latter gathered P5,500 worth of abaca and coconuts and destroyed P30,000 worth of plants; that to preserve the plants, defendants spent P50 per hectare a year for 300 hectares or P15,600 annually; that plaintiff cut timber worth P5,944. Recovery of litigation expenses worth P5,000 and P10,000 as moral damages, were further sought. The Development Bank of the Philippines also answered asserting its right resulting from the foreclosure of Palma's mortgage, and claiming that the Transfer Certificate of Title No. 3347 of De Villa was void; that the claim was barred by laches, as plaintiff had not done anything from 1948 to 1962; that plaintiff was barred from asserting that the lot covered by Transfer Certificate of Title No. 1115 of the DBP is the same as the lot covered by Transfer Certificate of Title No. 3347 because he claimed otherwise when he petitioned for reconstitution. DBP prayed for the dismissal of the complaint plus P5,000 as expenses of litigation. On January 10, 1963, Anacleto Trinidad died and the complaint was amended to substitute in his place his children as his heirs Romulo, Corazon, Gloria, Regina, Mariano and Leon. However, Romulo, Corazon, Gloria, Regina and Leon disclaimed interest on June 29, 1963 over the land, stating that the same had been adjudicated in the extrajudicial partition of the estate of their deceased father, to Mariano Trinidad. 21 The Court of First Instance, in its decision of June 5, 1964, found that the mortgage in De Villa's favor had been annotated at the back of both the original and the duplicate of Transfer Certificate of Title No. 50; that Transfer Certificate of Title No. RT-29(50), the reconstituted title from which De Villa derived Transfer Certificate of Title No. 3347, covers Lot No. 9, Plan PSU 1185, and originated from Original Certificate of Title No. 183, issued on January 30, 1920, while the duplicate title issued to Fabricante on which Palma's Transfer Certificate of Title No. 12 was based, as well as the Transfer Certificate of Title No. 1115 of DBP, covers Lot No. 2, Plan PSU 11885, and originated from Original Certificate of Title No. 34, issued on November 25, 1920; that the two title certificates were issued covering the same land and the rule is that the earlier in date Original Certificate of Title No. 183 prevails; that the heirs of Trinidad acquired only whatever right DBP had acquired; that the stigma of Fabricante's bad faith extended to Palma and to DBP; that there was no prescription, for plaintiff's action was not one for recovery of title or possession but for a judicial determination of ownership as to which of them, both with valid certificates of title, really owns the land. Accordingly, it stated in the dispositive portion: WHEREFORE, judgment is hereby rendered declaring the plaintiff the exclusive and absolute owner of the property described in paragraph 2 of the amended complaint and ordering the defendants to vacate and deliver the same to the plaintiff, to pay to the plaintiff damages at the sum of P48,000.00 per annum representing the value of the abaca fibers derived from the land plus the further sum of P360.00 every two months representing the value of the harvests from coconuts, starting from the period beginning March 2, 1961 until possession of the property is restored to the plaintiff and to pay the costs. The value of the useful improvements introduced on the land by the defendants shall be appraised and deducted from the value of the damages to be paid.

The defendants appealed this decision to the Court of Appeals which in turn certified the case to Us on the ground that the amount involved is more than P200,000. The main points at issue for Our consideration is the ownership of the land, the presence of laches or estoppel and the propriety of the award of damages by the lower court. Upon a misrepresentation, Cesario Fabricante was able to obtain a duplicate certificate. The order 22 granting such certificate expressly stated that the original of the title was still kept in the office of the Register of Deeds and ordered the issuance of a new duplicate covering the land as described in the petition. Unfortunately, the new duplicate issued is not in the records. However, its contents may be known from Transfer Certificate of Title No. 12 issued in favor of Eustaquio Palma which was based on Fabricante's newly-issued duplicate certificate. Transfer Certificate of Title No. 12 covers and describes 5,724,415 square meters of land, designated as Lot No. 2, Plan PSU 11885 surveyed on October 29 to November 11, 1917 and is indicated to originate from Original Certificate of Title No. 34, Decree No. 89686, registered on November 25, 1920. Upon the other hand, the reconstituted Transfer Certificate of Title RT-29(50) on which Transfer Certificate of Title No. 3347 was based, also describes the same 5,724,415 square meters of land but designated it as Lot No. 9, Plan PSU 11885 surveyed also on October 29 to November 11, 1917, but said certificate is shown to originate from Original Certificate of Title No. 183, Decree No. 89686, registered on January 30, 1920. While it is possible that a mistake could have been made with regard to the lot numbers, it is unlikely that a mistake as to origin of the titles and their dates of registration could also have been made. This is undoubtedly a case where two certificates of title were issued over the same land in the name of different persons who were both in good faith in their, acquisition. There having been two titles, it is understandable that the original upon which Fabricante's newly-issued duplicate certificate was based did not contain the mortgage annotation in favor of De Villa. We have laid the rule that where two certificates of title are issued to different persons covering the same land in whole or in part, the earlier in date must prevail as between original parties and in case of successive registrations where more than one certificate is issued over the land, the person holding under the prior certificate is entitled to the land as against the person who rely on the second certificate. The purchaser from the owner of the later certificate and his successors, should resort to his vendor for redress, rather than molest the holder of the first certificate and his successors, who should be permitted to rest secure in their title. 23 Consequently, since Original Certificate of Title No. 183 was registered on January 30, 1920, De Villa's claim which is based on said title should prevail, as against Trinidad's whose original title was registered on November 25, 1920. And from the point of equity, this is the proper solution, considering that unlike the titles of Palma and the DBP, De Villa's title was never tainted with fraud. When, as a result of the sale at public auction, Felix de Villa was able to secure Transfer of Certificate of Title No. 3347 in his name, his rights were already protected and he had the right to feel secure in them. Upon his dispossession by Anacleto Trinidad, he had all the right to come to the courts to seek redress and We do not see any reason why he should be estopped from doing so. Nor has his right of action been barred by laches. He possessed the land from January 9, 1961 until Trinidad obtained possession on March 2, 1961. Within a reasonable time thereafter, on January 26, 1962, De Villa filed the present case for determination of ownership with damages. These facts do not show that De Villa slept on his rights. With regard to appellants' claim that the lower court erred in holding that the mortgage was properly annotated and registered, suffice it to say that the matter is one of fact over which We find no strong reason for reversing the lower court which gave credence to De Villa's testimony to that effect. The facts and circumstances, however, do not call for assessment of damages against appellants until after the filing of the present suit on January 26, 1962 for only then could they be positively adjudged in bad faith in view of their knowledge, that there was an adverse claimant to the land. Trinidad's repossession of the land on March 2, 1961 cannot be deemed in bad faith as it was pursuant to a court order legally obtained, and as his possession before that time was in good faith. Appellant does not question the specific amounts of the damages awarded in De Villa's favor and the same, at any rate, is borne out by the records. Said damages, however should be offset against the value of whatever necessary and useful expenses and improvements were made or incurred by Trinidad with respect to the land, provided that in the case of useful expenses or improvements these were made or incurred prior to the filing of the present action. Such reimbursable amount due to Trinidad must, therefore, first be determined before the aforesaid award of damages in De Villa's favor can be executed. And its determination shall be by way of supplementary proceedings in aid of execution in the lower court. WHEREFORE, with the modification that the damages recoverable by De Villa against Trinidad should date from and after the filing of the complaint on January 26, 1962 until the property is restored to the plaintiff, the judgment appealed from is hereby affirmed in all other respects; and, accordingly, prior to the payment of the damages in De Villa's favor, supplementary proceedings in aid of execution are hereby ordered to be forthwith held

by the court a quo, to appraise and determine the value of improvements and expenses reimbursable to Trinidad, and thereafter to offset the two amounts respectively due to the parties to the extent that one covers the other. No costs. So ordered. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 183975 September 20, 2010

GREGORIO DIMARUCOT y GARCIA, Petitioner vs. PEOPLE OF THE PHILIPPINES, Respondent. RESOLUTION VILLARAMA, JR., J.: For resolution in this petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, is the Resolution1 dated July 23, 2008 of the Court of Appeals (CA) in CA-G.R. CR No. 30466 denying petitioners omnibus motion to reconsider the August 29, 2007 Resolution dismissing his appeal, to expunge the same from the Book of Entries of Judgment, and to give petitioner a period of thirty (30) days within which to file the appellants brief. The antecedents: Petitioner is the accused in Criminal Case No. 98-M-98 for Frustrated Murder in the Regional Trial Court (RTC) of Malolos, Bulacan, under the following Information: That on or about the 18th day of August, 1997, in the municipality of Malolos, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with an iron pipe and with intent to kill one Angelito Rosini y Go, did then and there wilfully, unlawfully and feloniously, with treachery and evident premeditation, attack, assault and hit with the said iron pipe the said Angelito Rosini y Go, hitting him on his head, thereby inflicting upon him physical injuries, which ordinarily would have caused the death of the said Angelito Rosini y Go, thus performing all acts of execution which should have produced the crime of murder as a consequence, but nevertheless did not produce it by reason of causes independent of his will, that is, by the timely and able medical assistance rendered to the said Angelito Rosini y Go which prevented his death. Contrary to law.2 After trial, on September 11, 2006, the RTC promulgated its Decision 3 convicting petitioner of frustrated homicide, and sentencing him as follows: WHEREFORE, finding accused GREGORIO aka GEORGE DIMARUCOT y GARCIA liable of (sic) the lesser offense of Frustrated Homicide, this Court hereby sentences him to an indeterminate penalty of four (4) years and two (2) months and one (1) day, as minimum, to eight (8) years and one (1) day, as maximum, of imprisonment. Accused is further directed to pay complainant Angelito Rosini y Go, actual damages broken down as follows: the amount of Nineteen Thousand One Hundred Ten Pesos and Sixty Five Centavos (P19,110.65) for the hospitalization/medical bills and the amount of Thirty Six Thousand Pesos (P36,000.00) as loss of income. With costs against the accused. SO ORDERED.4 Upon receiving the notice to file appellants brief, petitioner thru his counsel de parte requested and was granted additional period of twenty (20) days within which to file said brief. 5 This was followed by three (3) successive motions for extension which were all granted by the CA.6 On August 29, 2007, the CA issued a Resolution dismissing the appeal, as follows:

Considering the JRD verification report dated July 24, 2007 that the accused-appellant failed to file his appellants brief within the reglementary period which expired on June 6, 2007, his appeal is considered ABANDONED and thus DISMISSED, pursuant to Sec. 1 (e), Rule 50, 1997 Revised Rules of Civil Procedure. SO ORDERED.7 Petitioner filed a motion for reconsideration,8 his counsel admitting that he was at fault in failing to file the appellants brief due to "personal problems emanating from his [counsels] wifes recent surgical operation." It was thus prayed that the CA allow petitioner to file his appellants brief which counsel undertook to submit within seven (7) days or until October 4, 2007. By Resolution9 dated November 27, 2007, the CA, finding the allegations of petitioner unpersuasive and considering that the intended appellants brief was not at all filed on October 4, 2007, denied the motion for reconsideration. As per Entry of Judgment, the Resolution of August 29, 2007 became final and executory on January 4, 2008.10 On May 8, 2008, petitioner filed an Omnibus Motion (1) To Reconsider August 29, 2007 Resolution, (2) To Expunge The Same From Book Of Entries Of Judgment, and (3) To Give Accused-Appellant A Final Period Of Thirty Days To File Appellants Brief. Petitioner reiterated that his failure to file the appeal brief was solely the fault of his lawyer who is reportedly suffering from personal problems and depression. He also cited his advanced age (he will turn 76 on May 30, 2008) and medical condition (hypertension with cardiovascular disease and pulmonary emphysema), attaching copies of his birth certificate, medical certificate and certifications from the barangay and church minister.11 In the assailed Resolution dated July 23, 2008, the CA denied the omnibus motion holding that petitioner is bound by the mistakes and negligence of his counsel, such personal problems of a counsel emanating from his wifes surgical operation are not considered mistake and/or negligence contemplated under the law as to warrant reconsideration of the dismissal of petitioners appeal for failure to file appellants brief. Thus, when appellant did not file a petition before this Court to assail the validity of the August 29, 2007 and November 27, 2007 resolutions, the August 29, 2007 resolution attained finality and entry of judgment thereof is in order. 12 The petition has no merit. Section 8, paragraph 1, Rule 124 of the Revised Rules of Criminal Procedure, as amended, provides: SEC. 8. Dismissal of appeal for abandonment or failure to prosecute. The Court of Appeals may, upon motion of the appellee or motu proprio and with notice to the appellant in either case, dismiss the appeal if the appellant fails to file his brief within the time prescribed by this Rule, except where the appellant is represented by a counsel de oficio. xxxx It is clear under the foregoing provision that a criminal case may be dismissed by the CA motu proprio and with notice to the appellant if the latter fails to file his brief within the prescribed time. The phrase "with notice to the appellant" means that a notice must first be furnished the appellant to show cause why his appeal should not be dismissed.13 In the case at bar, there is no showing that petitioner was served with a notice requiring him to show cause why his appeal should not be dismissed for failure to file appellants brief. The purpose of such a notice is to give an appellant the opportunity to state the reasons, if any, why the appeal should not be dismissed because of such failure, in order that the appellate court may determine whether or not the reasons, if given, are satisfactory. 14 Notwithstanding such absence of notice to the appellant, no grave abuse of discretion was committed by the CA in considering the appeal abandoned with the failure of petitioner to file his appeal brief despite four (4) extensions granted to him and non-compliance to date. Dismissal of appeal by the appellate court sans notice to the accused for failure to prosecute by itself is not an indication of grave abuse. Thus, although it does not appear that the appellate court has given the appellant such notice before dismissing the appeal, if the appellant has filed a motion for reconsideration of, or to set aside, the order dismissing the appeal, in which he stated the reasons why he failed to file his brief on time and the appellate court denied the motion after considering said reasons, the dismissal was held proper. Likewise, where the appeal was dismissed without prior notice, but the appellant took no steps either by himself or through counsel to have the appeal reinstated, such an attitude of indifference and inaction amounts to his abandonment and renunciation of the right granted to him by law to prosecute his appeal. 15 Here, the Court notes the repeated non-observance by petitioner and his counsel of the reglementary periods for filing motions and perfecting appeal. While still at the trial stage, petitioners motion to admit and demurrer to evidence was denied as it was not seasonably filed (petitioner was granted fifteen (15) days from August 8, 2001 within which to file demurrer to evidence but filed his motion to dismiss only on September 4, 2001), in accordance with Section 23, Rule 119 of the Revised Rules of Criminal Procedure, as amended.16 Before the CA, petitioner and

his counsel filed no less than four (4) motions for extension to file brief, which was never filed nor attached in the motion for reconsideration of the August 29, 2007 Resolution dismissing the appeal. The last extension given expired on June 6, 2007, without any brief submitted by petitioner or his counsel. And even when he filed the Omnibus Motion on May 8, 2008, still no appellants brief was attached by petitioner. Neither did petitioner file any petition before this Court questioning the validity of the August 29, 2007 resolution and the November 27, 2007 denial of his motion for reconsideration. The dismissal of his appeal having become final, it was indeed too late in the day for petitioner to file the Omnibus Motion on May 8, 2008, which was four (4) months after the finality of the resolution dismissing the appeal. Having been afforded the opportunity to seek reconsideration and setting aside of the motu proprio dismissal by the CA of his appeal for non-filing of the appeal brief, and with his subsequent inaction to have his appeal reinstated after the denial of his motion for reconsideration, petitioner cannot impute error or grave abuse on the CA in upholding the finality of its dismissal order. Non-compliance with the requirement of notice or show cause order before the motu proprio dismissal under Section 8, paragraph 1 of Rule 124 had thereby been cured.17 Under the circumstances, the petitioner was properly declared to have abandoned his appeal for failing to diligently prosecute the same. Petitioner cannot simply harp on the mistakes and negligence of his lawyer allegedly beset with personal problems and emotional depression. The negligence and mistakes of counsel are binding on the client. 18 There are exceptions to this rule, such as when the reckless or gross negligence of counsel deprives the client of due process of law, or when the application of the general rule results in the outright deprivation of ones property or liberty through a technicality. However, in this case, we find no reason to exempt petitioner from the general rule. 19 The admitted inability of his counsel to attend fully and ably to the prosecution of his appeal and other sorts of excuses should have prompted petitioner to be more vigilant in protecting his rights and replace said counsel with a more competent lawyer. Instead, petitioner continued to allow his counsel to represent him on appeal and even up to this Court, apparently in the hope of moving this Court with a fervent plea for relaxation of the rules for reason of petitioners age and medical condition. Verily, diligence is required not only from lawyers but also from their clients. 20 Negligence of counsel is not a defense for the failure to file the appellants brief within the reglementary period. Thus, we explained in Redea v. Court of Appeals:21 In seeking exemption from the above rule, petitioner claims that he will suffer deprivation of property without due process of law on account of the gross negligence of his previous counsel. To him, the negligence of his former counsel was so gross that it practically resulted to fraud because he was allegedly placed under the impression that the counsel had prepared and filed his appellants brief. He thus prays the Court reverse the CA and remand the main case to the court of origin for new trial. Admittedly, this Court has relaxed the rule on the binding effect of counsels negligence and allowed a litigant another chance to present his case (1) where the reckless or gross negligence of counsel deprives the client of due process of law; (2) when application of the rule will result in outright deprivation of the clients liberty or property; or (3) where the interests of justice so require. None of these exceptions obtains here. For a claim of counsels gross negligence to prosper, nothing short of clear abandonment of the clients cause must be shown. Here, petitioners counsel failed to file the appellants brief. While this omission can plausibly qualify as simple negligence, it does not amount to gross negligence to justify the annulment of the proceeding below. (Emphasis supplied.)1avvphi1 The right to appeal is not a natural right and is not part of due process. It is merely a statutory privilege, and may be exercised only in accordance with the law. The party who seeks to avail of the same must comply with the requirements of the Rules. Failing to do so, the right to appeal is lost. 22 Strict compliance with the Rules of Court is indispensable for the orderly and speedy disposition of justice. The Rules must be followed, otherwise, they will become meaningless and useless.23 WHEREFORE, the petition is DENIED for lack of merit. The Resolution dated July 23, 2008 of the Court of Appeals in CA-G.R. CR No. 30466 is AFFIRMED. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 175605

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ARNOLD GARCHITORENA Y CAMBA a.k.a. JUNIOR; JOEY PAMPLONA a.k.a. NATO and JESSIE GARCIA Y ADORINO, Accused-Appellants. DECISION LEONARDO-DE CASTRO, J.: For automatic review is the Decision1 of the Court of Appeals (CA) in CA-G.R. CR.-HC No. 00765 which affirmed an earlier Decision2 of the Regional Trial Court (RTC) of Binan City, Branch 25 in Criminal Case No.9440-B, finding accused-appellants Arnold Garchitorena y Gamba, a.k.a. "Junior," Joey Pamplona, a.k.a. "Nato," and Jessie Garcia y Adorino guilty beyond reasonable doubt of murder and sentencing them to suffer the penalty of death and to indemnify jointly and severally the heirs of the victim in the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages, P50,000.00 as exemplary damages, P16,700.00 as actual damages, P408,000.00 for loss of earning capacity and to pay the costs of the suit. The conviction of accused-appellants stemmed from an Information3 dated January 22, 1996, filed with the RTC for the crime of Murder, the accusatory portion of which reads: That on or about September 22, 1995, in the Municipality of Binan, Province of Laguna, Philippines and within the jurisdiction of this Honorable Court, accused Arnold Garchitorena y Gamba, alias "Junior", Joey Pamplona alias "Nato" and Jessie Garcia y Adorino, conspiring, confederating together and mutualy helping each other, with intent to kill, while conveniently armed with a deadly bladed weapon, with abuse of superior strength, did then and there willfully, unlawfully and feloniously attack, assault and stab one Mauro Biay y Almarinez with the said weapon, thereby inflicting upon him stab wounds on the different parts of his body which directly caused his death, to the damage and prejudice of his surviving heirs. That the crime was committed with the qualifying aggravating circumstance of abuse of superior strength. CONTRARY TO LAW. When arraigned, accused-appellants, duly assisted by their counsel, pleaded not guilty to the charge. Thereafter, trial ensued. The prosecution presented three (3) witnesses; namely, Dulce Borero, elder sister of the victim Mauro Biay and eyewitness to the killing of her brother; Dr. Rolando Poblete, who conducted an autopsy on the body of the victim and prepared the post-mortem report; and Amelia Biay, the victims widow. The evidence for the prosecution, as culled from the CA Decision under review, is as follows: In the proceedings before the trial court, witness for the prosecution Dulce Borero testified that on September 22, 1995, at around 9:00 oclock in the evening, she was selling "balut" at Sta. Inez, Almeda Subdivision, Brgy. Dela Paz, Binan, Laguna. Her brother, Mauro Biay, also a "balut" vendor", was also at the area, about seven (7) arms length away from her when she was called by accused Jessie Garcia. Borero testified that when her brother Mauro approached Jessie, the latter twisted the hand of her brother behind his back and Jessies companions- accused Arnold Garchitorena and Joey Pamplona began stabbing her brother Mauro repeatedly with a shiny bladed instrument. Joey was at the right side of the victim and was strangling Mauro from behind. Witness saw her brother Mauro struggling to free himself while being stabbed by the three (3) accused., until her brother slumped facedown on the ground. Arnold then instructed his two co-accused to run away. During cross-examination, Borero claims that she wanted to shout for help but nothing came out from her mouth. When the accused had left after the stabbing incident, witness claimed that she went home to call her elder brother Teodoro Biay, but when they returned to the scene, the victim was no longer there as he had already been brought to the Perpetual Help Hospital. They learned from the tricycle driver who brought Mauro top the hospital that their brother was pronounced dead on arrival. Dr. Rolando Poblete, the physician who conducted an autopsy on victim Mauro Biay and prepared the post-mortem report, testified that the victims death was caused by "hypovolemic shock secondary to multiple stab wounds." Witness specified the eight (8) stab wounds suffered by the victim one in the neck, two in the chest, one below the armpit, two on the upper abdomen, one at the back and one at the left thigh and also a laceration at the left forearm of Mauro. According to the expert witness, the nature of stab wounds indicate that it may have been caused by more than one bladed instrument. The victims widow, Amelia Biay, testified that she incurred burial expenses amounting to P16,700.00 due to the death of her husband. Also, her husband allegedly earned a minimum of P300.00 a day as a "balut" vendor and P100.00 occasionally as a part-time carpenter.

The accused-appellants denied the charge against them. Specifically, accused-appellant Joey Pamplona denied that he participated in the stabbing of Mauro Bay, accused-appellant Jessie Garcia interposed the defense of alibi, while accused-appellant Arnold Garchitorena interposed the defense of insanity. Succinctly, the CA Decision summed up their respective defenses: On the other hand, accused Joey Pamplona denied that he participated in the stabbing of Mauro Biay. Joey Pamplona claims that he was seated on a bench when co-accused Arnold came along. Then the "balut" vendor arrived and Joey saw Arnold stand up, pull something from the right side of his pocket and stab the "balut" vendor once before running away. Joey Pamplona testified that after the stabbing incident, due to fear that Arnold might also stab him, he also ran away to the store of a certain Mang Tony, a barangay official and related the incident to Aling Bel, the wife of Mang Tony. Joey Pamplona said that he stayed at Mang Tonys store until his father arrived and told him to go home. Danilo Garados testified that on Septemebr 22, 1995, he was at the store of Mang Tony to buy cigarettes and saw Arnold and Joey seated on the bench near the artesian well. Arnold and Joey allegedly called Mauro Biay and he saw Arnold stabbing Mauro. Jessie Garcia was not there and Joey allegedly ran away when Arnold stabbed Mauro. Clavel Estropegan testified that on September 22, 1995, around 9:00 p.m. Joey Pamplona entered her store and told her that Junior or Arnold Garchitorena was stabbing somebody. She did not hear any commotion outside her house which is just four houses away from the artesian well. However, she closed her store for fear that Arnold will enter her house. Barangay Captain Alfredo Arcega testified that he investigated the stabbing incident and, although he had no personal knowledge, he found out that it was Arnold Garchitorena who stabbed Mauro Biay. Upon questioning Arnold, the latter admitted that he did stab Mauro. Defense witness Miguelito Gonzalgo testified that on September 22, 1995, he was in his shoe factory at his house located at 186 Sta. Teresita Street, Almeda Subdivision, Binan when he heard Mauro Biay shouting, and so he went out of his house. He allegedly saw two persons "embracing" each other near the artesian well. He recognized these two persons as Mauro and Arnold. He saw Arnold pulling out a knife from the body of Mauro and the latter slowly fell down on his side. After Arnold washed his hands at the artesian well and walked away towards the house of his aunt, this witness approached Mauro and seeing that the victim was still breathing, went to get a tricycle to bring Mauro to the hospital. When he got back to the area, there were many people who helped board Mauro in the tricycle and they brought him to the Perpetual Help Hospital in Binan. The other co-accused Jessie Garcia took the stand and claimed that on September 22, 1995, between 8:00 and 9:00 in the evening, he was still riding a bus from his work in Blumentritt. He arrived at his home in Binan only at 11:00 p.m. On September 24, 1995, he was fetched by two (2) policemen and two (2) Barangay Tanods from his house and brought to the Binan Police Station for questioning. Thereafter, he was put in jail and incarcerated for six (6) months without knowing the charges against him. He was only informed that he was one of the suspects in the killing of Mauro Biay by his mother. With respect to Arnold Garchitorena, Dr. Evelyn Belen, Medical Officer III and resident physician of the National Center for Mental Health, testified that she examined the accused Arnold and based on the history of the patient, it was found that he had been using prohibited drugs like shabu and marijuana for two (2) years prior to the stabbing incident in 1995. The patient is allegedly suffering from schizophrenia, wherein he was hearing auditory voices, seeing strange things and is delusional. However, Dr. Belen also testified that the accused Garchitorena had remissions or exaservation and understands what he was doing and was aware of his murder case in court. 4 On May 9, 2001, the trial court rendered a Decision,5 as follows: WHEREFORE, IN THE LIGHT OF ALL THE FOREGOING CONSIDERATIONS, the Court finds accused Arnold Garchitorena y Gamboa alias Junior, Joey Pamplona alias Nato and Jessie Garcia y Adorino GUILTY beyond reasonable of the crime of "MURDER" as defined and penalized under Article 248 of the Revised Penal Code, as amended, by Republic Act 7659, (Heinous Crimes). Accordingly, all of them are hereby sentenced to suffer the penalty of DEATH. Furthermore, all of the accused are hereby ordered to pay jointly and severally Amelia Biay, widow of the victim Mauro Biay, the following sums: a) 50,000.00 as and for civil indemnity b) 50,000.00 as and for moral damages c) 50,000.00 as and for exemplary damages

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d) 16,700.00 as and for actual damages e) 408,000.00 as and for loss of the earning capacity of Mauro Biay; and f) To pay the costs of suit. Likewise, the Provincial Warden of the Provincial Jail, Sta. Cruz, Laguna, is hereby ordered to transfer/commit the three (3) accused to the New Bilibid Prisons, Muntinlupa City, immediately upon receipt hereof. Considering that death penalty was meted against all of the accused, let the entire records of the above-entitled case be forwarded to the Supreme Court for automatic review and judgment pursuant to Rule 122, Sec.10 of the Revised Rules of Criminal Procedure. SO ORDERED.6 Accused-appellants appealed to the CA. Pamplona and Garcia reiterated their denial of the charge against them. Garchitorena who never denied his participation in the killing, insisted, however, insisted that he is exempt from criminal liability because he was suffering from a mental disorder before, during and after the commission of the crime. On May 31, 2006, the CA rendered the Decision7 now under review, affirming RTCs Decision in toto, thus: WHEREFORE, based on the foregoing premises, the instant appeal is DISMISSED. Accordingly, the appealed March 9, 2001 Decuision of the Regional Trial Court of Binan, Laguna, Branch 25, in Criminal Case No. 9440-B finding herein accused-appellants guilty beyond reasonable doubt of the crime of murder is AFFIRMED in its entirety. SO ORDERED. In arriving at the assailed Decision, the CA ratiocinated as follows: After studying the records of this case, we do not find any reason to overturn the ruling of the trial court. Despite the testimony of defense witnesses that it was only accused-appellant Arnold Garchitorena who stabbed the victim Mauro Biay, we find reason to uphold the trial courts giving credence to prosecution witness Dulce Borero who testified as an eyewitness on the circumstances surrounding the incident and the manner by which the crime committed. Defense witness Garados testified that he was at the store and saw both Arnold and Joey at the vicinity where the stabbing incident happened, seated on a bench near the artesian well, when they called the victim Mauro. Defense witness Gonzalgo was in his house when he heard the commotion and went outside to see Arnold and Mauro "embracing" near the artesian well and the former pulling a knife from the body of the latter. On the other hand, prosecution witness Borero was merely seven arms length away from the incident and could easily see the victim Mauro overpowered and attacked by his assailants, Arnold Garchitorena, Joey Pamplona and Jessie Garcia. She witnessed the stabbing incident in its entirely and positively identified the accused and their criminal acts. It is a well-settled rule that the evaluation of testimonies of witnesses by the trial court is received on appeal with the highest respect because such court has the direct opportunity to observe the witnesses on the stand and determine if they are telling the truth or not. (People vs. Cardel, 336 SCRA 144) Evidence presented by the prosecution shows that the accused conspired to assault the victim Mauro Biay. Accused Jessie Garcia was the one who called the victim and prompted the latter to approach their group near the artesian well. When the victim was near enough, accused Jessie Garcia and co-accused Joey Pamplona restrained Mauro Biay and overpowered him. Witness Borero then saw the two accused, Jessie Garcia and Joey Pamplona, together with their co-accused Arnold Garchitorena instructed his two co-accused to run. Conspiracy is apparent in the concerted action of the three accused. There is conspiracy when two or more persons come to an agreement concerning the commission of a felony and decide to commit it (People vs. Pendatun, 434 SCRA 148). Conspiracy may be deduced from the mode and manner in which the offense was perpetrated or inferred from the acts of the accused which show a joint or common purpose and design, a concerted action and community of interest among the accused (People vs. Sicad, et al., 391 SCRA 19). Likewise, we affirm the trial courts appreciation of the aggravating circumstance of abuse of superior strength to qualify the crime into murder. "While it is true that superiority in number does not per se mean superiority in strength, the appellants in this case did not only enjoy superiority in number, but were armed with a weapon, while the victim had no means with which to defend himself. Thus, there was obvious physical disparity between the protagonists and abuse of superior strength attended the killing when the offenders took advantage of their combined

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strength in order to consummate the offense." (People of the Phils. vs. Parreno, 433 SCRA 591). In the case at bar, the victim was rendered helpless when he was assaulted by the three accused. He was restrained and overpowered by the combined strength and the weapons used by his assailants. We do not find improbable Boreros failure to act or shout for help upon witnessing the stabbing of her brother Mauro Biay. It is an accepted maxim that different people react differently to a given situation or type of situation and there is no standard form of behavioral response when one is confronted with a strange or startling experience. xxx There is no standard form of behavior when one is confronted by a shocking incident. The workings of the human mind when placed under emotional stress are unpredictable. (People of the Philippines vs. Aspuria, 391 SCRA 404) Accused-appellant Jessie Garcias denial of any involvement cannot prevail over Boreros positive identification. As ruled by the trial court, allegations that accused Jessie Garcia was somewhere else when the crime was committed is not enough. He must likewise demonstrate that he could not have been present at the crime scene, or in its vicinity. He also could have sought the help of his co-worker, employer or anyone in the area to support his defense of alibi. Indeed, we affirm that accused Jessie Garcias allegation that he was elsewhere when the crime was committed is not substantiated by evidence. Alibi can easily be fabricated. Well-settled is the rule that alibi is an inherently weak defense which cannot prevail over the positive identification of the accused by the victim. (People of the Phils. vs. Cadampog, 428 SCRA 336) Finally, the defense of insanity cannot be given merit when the expert witness herself, Dr. Belen, attested that accused Arnold Garchitorena was experiencing remission and was even aware of his murder case in court. The trial court had basis to conclude that during the commission of the crime, Arnold was not totally deprived of reason and freedom of will. In fact, after the stabbing incident, accused Arnold Garchitorena instructed his co-accused to run away from the scene. We agree that such action demonstrates that Arnold possessed the intelligence to be aware of his and his co-accuseds criminal acts. A defendant in a criminal case who interpose the defense of mental incapacity has the burden of establishing the fact that he was insane at the very moment when the crime was committed. There must be complete deprivation of reason in the commission of the act, or that the accused acted without discernment, which must be proven by clear and positive evidence. The mere abnormality of his mental faculties does not preclude imputability. Indeed, a man may act crazy but it does not necessarily and conclusively prove that he is legally so. (People of the Philippines vs. Galigao, 395 SCRA 195) Having found the court a quos decision to be supported by the evidence on record, and for being in accord with prevailing jurisprudence, we find no reason to set it aside. WHEREFORE, based on the foregoing premises, the instant appeal is DISMISSED. Accordingly, the appealed March 9, 2001 Decision of the Regional Trial Court of Bian, Laguna, Branch 25, in Criminal Case No. 9440-B finding herein accused-appellants guilty beyond reasonable doubt of the crime of murder is AFFIRMED in its entirely. SO ORDERED. The case was elevated to this Court for automatic review. The People and the accused-appellants opted not to file any supplemental brief. The respective assignments of errors contained in the briefs that they filed with the CA are set forth hereunder. For accused-appellant Pamplona: I THE TRIAL COURT ERRED IN GIVING FULL AND TOTAL CREDENCE TO THE TESTIMONY OF PROSECUTION WITNESS DULCE BORERO II THE TRIAL COURT ERRED IN FAILING TO APPRECIATE THE EVIDENCE IN FAVOR OF THE APPELLANT III THE TRIAL COURT ERRED IN CONVICTING APPELLANT WHEN HIS GUILT HAS NOT BEEN DULY PROVEN BEYOND REASONABLE DOUBT For accused-appellant Garcia:

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I THE TRIAL COURT ERRED IN GIVING UNDUE WEIGHT AND CREDENCE TO THE ALLEGED EYEWITNESS ACCOUNT GIVEN BY DULCE BORERO, ELDER SISTER OF THE VICTIM AND PROSECUTION WITNESS, IN RESPECT OF THE PARTICIPATION OF THE HEREIN ACCUSED DESPITE GLARING INCONSISTENCIES, INHERENT IMPROBABILITIES AND UNRELIABLE DECLARATION ATTENDING THE SAME; AND, ON THE OTHERHAND, IN DISREGARDING THE COHERENT, CONSISTENT AND CREDIBLE EYEWITNESS ACCOUNT OF DEFENSE WITNESSES ALL IN CONTRAVENTION OF THE RULES GOVERNING QUANTUM OF PROOF IN CRIMINAL CASES AND THE PRESUMPTION OF INNOCENSE EXISTING IN FAVOR OF ACCUSED GARCIA; II THE TRIAL COURT ERRED IN COMPLETELY DISREGARDING THE DEFENSE OF ALIBI INTERPOSED BY ACCUSED-APPELLANT JESSIE GARCIA WHO WAS SOMEWHERE ELSE AT THE TIME AS TO RENDER IT PHYSICALLY IMPOSSIBLE FOR HIM TO HAVE BEEN AT THE SCENE OF THE CRIME AND EVEN IF THE SAME IS SUBSTANTIATED BY CLEAR AND CONVINCING EVIDENCE, THAT IS, THE TESTIMONIES OF OITHER DEFENSE WITNESSES WHO WERE ONE IN SAYING THAT HE WAS NOT PRESENT THEREAT; III THE LOWER COURT ERRED IN ENTERING A VERDICT OF CONVICTION FOR JESSIE GARCIA INSTEAD OF ACQUITTAL WHEN NONE OF THE OTHER ACCUSED, AFTER HAVING ADMITTED THEIR PARTICIPATION IN THE CRIME, IMPLICATED HIM; IV THE LOWER COURT ERRED, IN AWARDING MORAL AND EXEMPLARY DAMAGES IN THE ABSENCE OF EVIDENCE THEREFOR. For accused-appellant Garchitorena: I THE COURT ERRED IN NOT GIVING WEIGHT AND CREDENCE OVER THE TESTIMONY OF AN EXPERT WITNESS. II THE COURT ERRED IN FINDING ACCUSED ARNOLD GARCHITORENA TO HAVE WILLFULLY EXECUTED THE ACTS COMPLAINED OF. Accused-appellant Pamplona capitalized on Dulce Boreros inaction at the time when she had supposedly witnessed the slaying of her younger brother. He argued that if she really witnessed the crime, she would have had readily helped her brother Mauro instead of fleeing. Accused-appellant Garcia anchored his acquittal on his defense of alibi, while accused-appellant Garchitorena used his alleged mental disorder, specifically, schizophrenia, as a ground to free himself from criminal liability. The core issues raised by the both accused-appellants Pamplona and Garcia are factual in nature and delve on the credibility of the witnesses. Since the accused-appellants raise factual issues, they must use cogent and convincing arguments to show that the trial court erred in appreciating the evidence. They, however, have failed to do so. Accused-appellant Pamplona contends that the trial courts decision was rendered by a judge other than the one who conducted trial. Hence, the judge who decided the case failed to observe the demeanor of the witnesses on the stand so as to gauge their credibility. This argument does not convince the Court for the reason it has consistently maintained, to wit: We have ruled in People v. Sadiangabay (G.R. No. 87214, March 30, 1993, 220 SCRA 551), that the circumstance alone that the judge who wrote the decision had not heard the testimonies of the prosecution witnesses would not taint his decision. After all, he had the full record before him, including the transcript of stenographic notes which he could study. The efficacy of a decision is not necessarily impaired by the fact that its writer only took over from a

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colleague who had earlier presided at the trial, unless there is a clear showing of a grave abuse of discretion in the factual findings reached by him.8 A perusal of the trial courts decision readily shows that it was duly based on the evidence presented during the trial. It is evident that he thoroughly examined the testimonial and documentary evidence before him and carefully assessed the credibility of the witnesses. This Court finds no plausible ground to set aside the factual findings of the trial court, which were sustained by the CA.lavvph!l The eyewitness Dulce Boreros testimony clearly established Pamplona and Garcias participation and, consequently, their culpability in the appalling murder of Mauro Biay: 9 "Fiscal Nofuente (To the witness) Q: Madam witness, do you know Mauro Biay? A: Yes sir. xxx Q: Do you know likewise the cause of his death? A: Yes sir. Q: What was the cause of his death? A: He was repeatedly stabbed sir. Q: You said that Mauro Biay was repeatedly stabbed, who stabbed Mauro Biay repeatedly? A: Arnold Gatchitorena, was stabbing repeatedly the victim sir. Q: Was Arnold Gatchitorena alone when he stabbed Mauro Biay? A: They were three (3) who were stabbing Mauro Biay, sir. Q: You said that they were three who were stabbing Mauro Biay, who are the other two? A: Jessie Garcia and Joey Pamplona sir. Q: So that when you said three, you are referring to Arnold Gatchitorena, Joey Pamplona and Jessie Garcia? A: Yes sir. Q: Now, when [did] this stabbing incident [happen]? A: On September 22, 1995 sir. Q: Do you know what was [the] time when this incident happened on September 22, 1995? A: 9:00 oclock in the evening sir. Q: Where [did] this stabbing [happen]? A: At Sta. Inez, Almeda Subdivision, dela Paz, Bian, Laguna sir. Q: Could you tell Madam Witness, where in particular place in Sta. Inez, Almeda Subdivision this stabbing incident happened? A: In the street near the artesian well sir. Q: Do you know where is that street?

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A: Sta Inez St., Almeda Subdivision, dela Paz, Bian, Laguna sir. Q: You said a while ago that accused Arnold Gatchitorena, Jessie Garcia, Joey Pamplona repeatedly [stabbed] Mauro Biay, do you know these three accused? A: Yes sir. xxx Q: Will you kindly step down from your seat and tap the three accused that you have pointed to us to be the persons who stabbed and killed your brother Mauro Biay? Court: Police Officer Dionisio will you kindly accompany the witness. P02 Dionisio: Yes sir. Fiscal: I would like to manifest Your Honor, that the witness was crying when she was pointing to the three accused, uttering that "Sila ang pumatay sa aking kapatid!". xxx Q: What is the name of that person wearing that blue t-shirts? A: Arnold Gatchitorena sir. Q: We would like to confirm if he is really Arnold Gatchitorena pointed to by the witness? Interpreter: The person pointed to by the witness wearing blue t-shirts identified himself as Arnold Gatchitorena. Fiscal: Do you know the name of second person whom you tapped on his side wearing white t-shirts? A: Yes sir. Q: What is his name? A: Jessie Garcia sir. Interpreter: The person pointed to by the witness identified himself as certain Jessie Garcia. Fiscal: Likewise Madam Witness, do you know the name of a person in longsleeves polo shirts-checkered? A: Yes sir, Joey Pamplona sir. Interpreter: The person pointed by the witness identified himself as certain Joey Pamplona. xxx Q: How far were you from Mauro Biay when he was being stabbed by the three accused Joey Pamplona, Jessie Garcia, and Arnold Gatchitorena? A: Seven (7) arms length sir. Q: You said that your brother was stabbed successively by the three accused, how did it [happen] Madam Witness? A: They called him sir. Q: Who was called? A: Mauro Biay sir.

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Q: Who called Mauro Biay? A: It was Jessie who called sir. Q: When you said Jessie, are you referring to Jessie Garcia, one of the accused in this case? A: Yes sir. Q: When Mauro Biay was called by Jessie Garcia, what was [M]auro Biay doing there? A: Mauro Biay approached sir. Q: By the way Madam Witness, do you know why Mauro Biay was in that place where the incident happened? A: Yes sir. Atty. Pajares: Witness would be incompetent Your Honor. Court: Witness may answer. Fiscal: Why was he there? A: He was selling "balot" sir. xxx Fiscal: When Mauro Biay approached Jessie Garcia, what [did] Mauro Biay do, if any? A: Jessie Garcia twisted the hand of my brother and placed the hand at his back sir. Q: Who were the companions of Jessie Garcia when he called [M]auro Biay? A: Joey Pamplona and Jr. Gatchitorena sir. Q: When you said Jr. Gatchitorena are you referring to Arnold Gatchitorena? A: Yes sir. Q: So that when Jessie Garcia called Mauro Biay, he was together with Arnold Gatchitorena and Joey Pamplona? A: Yes sir. Q: If you know Madam Witness, what did Joey Pamplona and Arnold Gatchitorena do after Jessie Garcia twisted the arm of Mauro Biay on his back? A: Arnold Gatchitorena repeatedly stabbed [M]auro Biay at his back and also Jessie Garcia also stabbed my brother sir. xxx Q: Were you able to know the weapon used to stab Mauro Biay? A: It was like a shiny bladed instrument sir. Q: Now, what was the position of Mauro Biay when being stabbed by the three accused? A: He was struggling to free himself sir. Q: You said that he was struggling to free himself, why did you say that he was struggling to free himself?

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A: Because I could see sir. Q: You see what? A: Because that three were repeatedly stabbing Mauro Biay sir. Q: Aside from stabbing Mauro Biay, what was Joey Pamplona doing to Mauro Biay, if you can still remember? A: He was also repeatedly stabbing my brother sir. Q: Aside from that stabbing, what else if any Joey Pamplona was doing to Mauro Biay? A: Aside from stabbing Mauro Biay Joey Pamplona was also struggling [strangling] the neck of Mauro Biay sir. Q: You said that Mauro Biay was stabbed by the three accused successively, was Mauro Biay hit by these stabbing? A: Yes sir. Q: Why do you know that he was hit by stabbing of the three? A: Because I saw the blood oozing from the part of his body sir. Q: Now, what happened to Mauro Biay, when he was stabbed and hit by the successive stabbing of the three accused? A: The victim Mauro Biay was suddenly slumped face down on the ground sir. xxx Q: What did you learn if any when you went to the hospital to see your brother [M]auro Biay? A: He was already dead sir. Even under cross-examination, Dulce Borero was unwavering, straightforward, categorical and spontaneous in her narration of how the killing of her brother Mauro took place. 10 Notably, her testimony as to the identification of Garchitorena as the one who stabbed Mauro Biay was even corroborated by defense witness Miguelito Gonzalgo,11 thus: Q: From the time you saw these two persons near the artesian well, what happened after that, mr. witness? A: Mauro Biay slumped on the floor and I saw Junior stabbed once more the victim but I am not sure if the victim was hit at the back, maam. Q: How far were you from the two when you saw the incident, mr. witness? A: More or less 7 to 8 meters, maam. Q: Were there anything blocking your sight from the place where you were standing to the place of incident, mr. witness? A: None, maam. Absent any showing of ill motive on the part of Borero, we sustain the lower court in giving her testimony full faith and credence. Moreover, the prosecutions version is supported by the physical evidence.12 Boreros testimony that the victim was successively stabbed several times conforms with the autopsy report that the latter suffered multiple stab wounds.13 Accused-appellant Pamplonas argument that there were inconsistencies in the testimony of prosecution witnesses Borero is not convincing. He specifically points out that in the direct examination of Borero, she stated that it was Jessie Garcia who twisted the hand of Mauro Biay backwards when the latter approached the former. 14 In the cross-

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examination, she stated that it was Joey Pamplona who strangled the victim when the latter approached Jessie Garcia. The seeming inconsistencies between her direct testimony and her cross-examination testimonies are not sufficient ground to disregard them. In People v. Alberto Restoles y Tuyo, Roldan Noel y Molet and Jimmy Alayon y De la Cruz,15 we ruled that: minor inconsistencies do not affect the credibility of witnesses, as they may even tend to strengthen rather than weaken their credibility. Inconsistencies in the testimony of prosecution witnesses with respect to minor details and collateral matters do not affect either the substance of their declaration, their veracity, or the weight of their testimony. Such minor flaws may even enhance the worth of a testimony, for they guard against memorized falsities. Moreover, such inconsistencies did not contradict the credibility of Borero or her narration of the incident. On the contrary, they showed that her account was the entire truth. In fact, her narration was in harmony with the account of defense witness Gonzalgo. We note further that both the Sworn Statement 16 of Borero and her testimony before the lower court17 were in complete congruence. Undoubtedly, accused-appellants identities as the perpetrators were established by the prosecution. The prosecution witness was able to observe the entire incident, because she was there. Thus, we find no reason to differ with the trial courts appreciation of her testimony. Positive identification, where categorical and consistent, and not attended by any showing of ill motive on the part of the eyewitnesses on the matter, prevails over alibi and denial. 18 Accused-appellant Garcias alibi has no leg to stand on. In People v. Desalisa, 19 this Court ruled that: for the defense of alibi to prosper, the accused must prove not only that he was at some other place when the crime was committed, but also that it was physically impossible for him to be at the scene of the crime or its immediate vicinity through clear and convincing evidence. Here, the crime was committed at Binan, Laguna. Although Garcia testified that he was still riding a bus from his work in Blumentritt and arrived in Binan only at 11:00 P.M. or two hours after the killing incident, still, he failed to prove that it was physically impossible for him to be at the place of the crime or its immediate vicinity. His alibi must fail. Accused-appellant Garchitorenas defense of insanity has also no merit. Unlike other jurisdictions, Philippine courts have established a more stringent criterion for the acceptance of insanity as an exempting circumstance. 20 As aptly argued by the Solicitor General, insanity is a defense in the nature of confession and avoidance. As such, it must be adequately proved, and accused-appellant Garchitorena utterly failed to do so. We agree with both the CA and the trial court that he was not totally deprived of reason and freedom of will during and after the stabbing incident, as he even instructed his co-accused-appellants to run away from the scene of the crime. Accused-appellant Garcia also argues that there was no conspiracy, as "there was no evidence whatsoever that he aided the other two accused-appellants or that he participated in their criminal designs." 21 We are not persuaded. In People v. Maldo,22 we stated: "Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Direct proof is not essential, for conspiracy may be inferred from the acts of the accused prior to, during or subsequent to the incident. Such acts must point to a joint purpose, concert of action or community of interest. Hence, the victim need not be actually hit by each of the conspirators for the act of one of them is deemed the act of all." (citations omitted, emphasis ours) In this case, conspiracy was shown because accused-appellants were together in performing the concerted acts in pursuit of their common objective. Garcia grabbed the victims hands and twisted his arms; in turn, Pamplona, together with Garchitorena, strangled him and straddled him on the ground, then stabbed him. The victim was trying to free himself from them, but they were too strong. All means through which the victim could escape were blocked by them until he fell to the ground and expired. The three accused-appellants prior act of waiting for the victim outside affirms the existence of conspiracy, for it speaks of a common design and purpose. Where there is conspiracy, as here, evidence as to who among the accused rendered the fatal blow is not necessary. All conspirators are liable as co-principals regardless of the intent and the character of their participation, because the act of one is the act of all.23 The aggravating circumstance of superior strength should be appreciated against the accused-appellants. Abuse of superior strength is present whenever there is inequality of forces between the victim and the aggressor, considering that a situation of superiority of strength is notoriously advantageous for the aggressor and is selected or taken advantage of by him in the commission of the crime. 24 This circumstance was alleged in the Information and was proved during the trial. In the case at bar, the victim certainly could not defend himself in any way. The accused-

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appellants, armed with a deadly weapon, immobilized the victim and stabbed him successively using the same deadly weapon. All told, the trial court correctly convicted the accused-appellants of murder, considering the qualifying circumstance of abuse of superior strength. Since an aggravating circumstance of abuse of superior strength attended the commission of the crime, each of the accused-appellants should be sentenced to suffer the penalty of death in accordance with Article 6325 of the Revised Penal Code. Murder, under Article 248 26 of the Revised Penal Code, is punishable by reclusion perpetua to death. Following Article 63 of the same code, the higher penalty of death shall be applied. In view, however, of the passage of R.A. No. 9346, 27 otherwise known as the Anti-Death Penalty Law, which prohibits the imposition of the death penalty, reclusion perpetua without eligibility for parole should instead be imposed. Accordingly, accused-appellants shall be sentenced to reclusion perpetua without eligibility for parole in lieu of the penalty of death. While the new law prohibits the imposition of the death penalty, the penalty provided for by law for a heinous offense is still death and the offense is still heinous.28 Consequently, the civil indemnity for the victim is still P75,000.00. In People v. Quiachon,29 we explained that even if the penalty of death was not to be imposed on appellant because of the prohibition in Republic Act No. 9346, the civil indemnity of P75,000.00 was still proper. Following the ratiocination in People v. Victor,30 the said award is not dependent on the actual imposition of the death penalty, but on the fact that qualifying circumstances warranting the imposition of the death penalty attended the commission of the crime. Hence, we modify the award of civil indemnity by the trial court from P50,000.00 to P75,000.00. Civil indemnity is mandatory and granted to the heirs of the victim without need of proof other than the commission of the crime. Likewise the award of P50,000.00 for moral damages is modified and increased to P75,000.00, consistent with recent jurisprudence31 on heinous crimes where the imposable penalty is death, it is reduced to reclusion perpetua pursuant to R.A. 9346. The award of moral damages does not require allegation and proof of the emotional suffering of the heirs, since the emotional wounds from the vicious killing of the victim cannot be denied. 32 The trial courts award of exemplary damages in the amount of P50,000.00 shall, however, be reduced to P30,000.00, also pursuant to the latest jurisprudence on the matter.33 As to the award of actual damages amounting to P16,700.00, we modify the same. In People v. Villanueva, 34 this Court declared that "when actual damages proven by receipts during the trial amount to less than P25,000.00, as in this case, the award of temperate damages for P25,000.00 is justified in lieu of actual damages of a lesser amount." In the light of such ruling, the victims heirs in the present case should, therefore, be awarded temperate damages in the amount of P25,000.00. The award of P408,000.00 for loss of earning capacity is justified. As a rule, documentary evidence should be presented to substantiate the claim for damages for loss of earning capacity. By way of exception, damages for loss of earning capacity may be awarded despite the absence of documentary evidence when (1) the deceased is selfemployed and earning less than the minimum wage under current labor laws, in which case judicial notice may be taken of the fact that in the deceaseds line of work no documentary evidence is available; or (2) the deceased is employed as a daily wage worker earning less than the minimum wage under current labor laws.35 It cannot be disputed that the victim, at the time of his death, was self-employed and earning less than the minimum wage under current labor laws. The computation arrived at by the trial court was in accordance with the formula for computing the award for loss of earning capacity.36 Thus, Award for lost earnings = 2/3 [80-age at time of death] x [gross annual income 50% (GAI)] = 2/3 [80-29] x P24,000.00 P12,000.00 = (34) x (P12,000.00) = P408,000.00 WHEREFORE, the appealed decision of the CA in CA-G.R. CR HC No. 00765, finding the three-accused appellants guilty beyond reasonable doubt of murder is hereby AFFIRMED WITH the following MODIFICATIONS: (1) the penalty of death imposed on accused-appellants is REDUCED to RECLUSION PERPETUA without eligibility for parole pursuant to RA 9346; (2) the monetary awards to be paid jointly and severally by the accused-appellants to the heirs of the victim are as follows: P75,000.00 as civil indemnity, P75,000.00 as moral damages, P30,000.00 as exemplary damages, and P25,000.00 as temperate damages in lieu of actual damages; (3) P408,000.00 for loss of earning capacity; and (4) interest is imposed on all the damages awarded at the legal rate of 6% from this date until fully paid.37 No costs.

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SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-16997 April 25, 1962

RAMCAR INCORPORATED, Plaintiff-Appellee, vs. DOMINGO GARCIA, Defendant-Appellant. PAREDES, J.: In May 1959, Domingo Garcia obtained the services of Ramcar Inc. for the repair of his two cars. The total cost of the repair, in labor and material, amounted to P1,610.82, which, according to their agreement, was payable within the first ten days of the month. As Domingo Garcia failed to pay his obligation, despite demands, Ramcar Inc. on October 9, 1959, filed an action in the Municipal Court of Manila for the recovery of said amount. Judgment was entered in favor of Ramcar Inc., against Garcia who appealed to the CFI of Manila (being Civ. Case No. 41853). The lower court set the hearing of the case on January 28, 1960. On January 27, 1960, appellant's motion to postpone, as his counsel had to appear in a hearing in Pampanga - Crim. Case No. 3297, was denied. The lower court forthwith received plaintiff's evidence in the absence of the defendant and entered judgment, condemning defendant to pay the amount of P1,610.82 at 12% interest per annum from October 9, 1959, until fully paid, plus 25% of the said sum as attorney's fees and the costs in both instances. Defendant's motion for new trial was denied. He directly appealed to this Court, alleging that (1) the lower court erred, in ordering him to pay, on the basis of the evidence presented by appellee, in view of article 1715, in relation to article 1169 of the new Civil Code; and (2) the decision of the trial court is contrary to law. The position of the appellant may be stated as follows: . The contract between the parties is one for lease of work or service to execute a piece of work (Art. 1644, N.C.C.) appellant in paragraph 3 of his answer avers Defendant denies the allegations in Paragraph 4 of the complaint, the truth being that if he is at all indebted to the plaintiff, his obligation has not become due and demandable for the reason that plaintiff has not complied with defendant's request to correct defects in the repair services done by it. Under the contract, it was appellee's obligation to do the work or repair without defects that would destroy or lessen the value or fitness of the cars for their ordinary or stipulated use, pursuant to the provisions of Article 1715, N.C.C. which provides Art. 1715. The contractor shall execute the work in such a manner that it has the qualities agreed upon and has no defects which destroy or lessen its value or fitness for its ordinary or stipulated use. Should the work be not of such quality, the employer may require that the contractor remove the defect or execute another work. If the contractor fails or refuses to comply with this obligation, the employer may have the defect removed or another work executed, at the contractor's cost. As the principal issue raised by the pleadings was whether the repairs made by the appellee were not defective, the appellee has the burden of proof (onus probandi) of establishing that the repairs were not defective. In other words, defendant-appellant contends that plaintiff-appellee runs the risk of losing its case, if it fails to prove that the repairs were without defect, considering the provision of said article 1715; that plaintiff merely proved the allegations in its complaint, in the absence of the defendant, notwithstanding the allegation in his answer that the repairs were defective and as appellee had failed to prove that it performed the repairs without an defect, appellant's obligation to pay such repairs is not yet due and demandable. Defendant-appellant in support of his theory, cites Art. 1169, N.C.C., which provides that in reciprocal obligations, neither party incurs in delay in the other does not comply or is not ready to comply in proper manner with what is incumbent upon him. The plaintiff in a civil case, is called upon only to prove the material allegations in his complaint constituting his cause of action. In the case at bar, plaintiff's cause of action relates to the prestation of repair services to the appellant for which the latter in turn obligated himself to pay for the value thereof. Appellee proved his allegations. It is not enough that a defendant interposes affirmative or special defense, in order to relieve him of his liability to the plaintiff; he must establish by preponderant evidence such affirmative defense (Kesler Electric Co. v. Rodriguez, 44 Phil. 19; Alvarez v. Vargas, 35 Phil. 1). Although appellant herein, filed his answer, alleging that the repairs made by the appellee were defective, he presented no evidence in support of the same, because he failed to appear at

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the trial. The legal issue is not whether the repairs made were defective but rather the determination of who has the burden of proving that the repairs were defective. The burden of proof lies on either side (sec. 70, Rule 123). The plaintiff herein having proven its case, the defendant would run the risk of being defeated, if he did not prove his allegations. It is true that defendant-appellant's averment to the effect that the repair services were defective, is a negative one, but defendant has asserted the affirmative of this issue, hence, he should be made to prove it. It stands to reason that the burden of proof lies on the party who substantially asserts the affirmative of the issue, upon the principle that the suitor who relies upon the existence of a fact should be called upon to prove that fact. Article 1715 in conjunction with Art. 1169 of the N.C.C., may be available only under certain established facts; that is, the proof of the defects in the works, which in the instant case, appellant has failed to do. The trial court found that plaintiff did in fact render repair services to the defendant, and in the absence of proof to the contrary, such repair services are deemed satisfactory. The law presumes that appellee acted in accordance with his commitments, and that the repairs were regularly done (Sec. 69, pars. p & q, Rule 123). And since, in the case at bar, defendantappellant presented no evidence, he is not justified in invoking forecited provisions. Verily, the findings of the lower court, as to facts are now considered final and conclusive. The judgment appealed from being in accordance with the evidence and the law on the matter, is hereby affirmed in toto, with costs against the defendant-appellant. Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Dizon and De Leon, JJ., concur. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. L-37633 January 31, 1975 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. FELICISIMO MEDROSO, JR., Accused-Appellant. MUOZ PALMA, J.: The only question or issue involved in this appeal is the correctness of the judgment rendered by the Court of First Instance of Camarines Sur in Criminal Case No. 403 wherein accused-appellant, Felicisimo Medroso Jr., on a plea of guilty, was convicted of "Homicide through reckless imprudence" and sentenced to suffer the penalty of, from TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY, as minimum, to SIX (6) YEARS, as maximum, of prision correccional and ordered to pay the heirs of the deceased in the sum of P12,000.00 as actual damages, P4,000.00 as moral damages and P4,000.00 as exemplary damages, Philippine currency, and to pay the cost of this proceeding. (p. 11, Rollo) Sometime on August 6, 1971, the Provincial Fiscal of Camarines Sur filed with the local Court of First Instance an Information accusing the herein appellant, Felicisimo Medroso Jr., of "Homicide through reckless imprudence" alleged to have been committed as follows: That on or about the 16th of May, 1971, in the barrio of San Roque, municipality of Bombon, province of Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the said accused without any license to drive motor vehicles issued by competent authority, did then and there wilfully and unlawfully manage and operate a BHP dump truck bearing Plate No. 7329, S. 1969 and with BHP truck No. 14-H3-12P and while passing along the said barrio in a negligent, careless and imprudent manner, without due regard to traffic laws, rules and regulations to prevent accident to persons and damage to property, caused by such negligence and imprudence, said truck driven and operated by him to bump and hit one Iigo Andes thereby causing his death. (p. 4, Rollo) The case was called for trial on July 18, 1972, on which date appellant with the assistance of his counsel pleaded guilty to the charge with two mitigating circumstances in his favor, viz: plea of guilty and voluntary surrender, to which the prosecuting fiscal offered no objection.virtualawlibrary virtual law library

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In its decision, the trial court, presided by Hon. Delfin Vir Sunga, after appreciating the above-mentioned mitigating circumstances and considering as an aggravating circumstance the fact that appellant drove the vehicle in question without a license, sentenced the accused as indicated above.virtualawlibrary virtual law library Not content with the penalty imposed, accused appealed to the Court of Appeals.virtualawlibrary virtual law library On September 19, 1973, the Appellate Court, through its Second Division at the time, certified the case to this Court on the ground that the appeal covers pure questions of law.virtualawlibrary virtual law library Appellant is charged with homicide thru reckless imprudence for which the penalty provided for in Paragraph 6, sub-section 2 of Article 365 of the Revised Penal Code is prision correccional in its medium and maximum periods or from two years, four months and one day to six years.virtualawlibrary virtual law library Appellant now contends that inasmuch as he has two mitigating circumstances in his favor without any aggravating circumstance, as driving without a license is not to be considered such, he is entitled to a penalty one degree lower than that prescribed by law pursuant to Article 64 of the Revised Penal Code 1 or, arresto mayor in its maximum period to correct in its minimum period, that is, from "four months and one day to two years, four months and one day," and that applying the Indeterminate Sentence Law, the trial court should have imposed a minimum within the penalty still one degree lower, which is arresto mayor minimum and medium periods (1 month and 1 day to 4 months) and to a maximum of not more than two years, four months, and one day of prision correccional.virtualawlibrary virtual law library Appellant's proposition would indeed be correct if he were charged with any of the offenses penalized in the Revised Penal Code other than Article 365 thereof, But because appellant is accused under Article 365, he is not entitled as a matter of right to the provisions of Article 64 of the Code.virtualawlibrary virtual law library Paragraph 5 of Article 365 expressly states that in the imposition of the penalties provided for in the Article, the courts shall exercise their sound discretion without regard to the rules prescribed in Article 64. 2 The rationale of the law can be found in the fact that in quasi-offenses penalized under Article 365, the carelessness, imprudence or negligence which characterizes the wrongful act may vary from one situation to another, in nature, extent, and resulting consequences, and in order that there may be a fair and just application of the penalty, the courts must have ample discretion in its imposition, without being bound by what We may call the mathematical formula provided for in Article 64 of the Revised Penal Code. On the basis of this particular provision, the trial court was not bound to apply paragraph 5 of Article 64 in the instant case even if appellant had two mitigating circumstances in his favor with no aggravating circumstance to offset them.virtualawlibrary virtual law library In People vs. Agito, 1958, 103 Phil. 526, the accused, Simplicio Agito, was charged with triple homicide and serious physical injuries thru reckless imprudence before the Court of First Instance of Negros Occidental of Mindoro. He pleaded guilty and the trial court, applying Article 365, paragraph 6, sub-section 2 of the Revised Penal Code, sentenced him to suffer an indeterminate penalty from one year and one day to three years, six months and twenty one days of prison correccional. The accused appealed questioning the propriety of the penalty imposed and appellant contended inter alia that the trial court erred in not considering the mitigating circumstance of plea of guilty so as to reduce the penalty to a minimum period. This contention was held by this Court to be untenable for to uphold it would be contrary to Article 365, paragraph 5, of the Revised Penal Code as amended by R.A. 384 which provides that "(I)n the imposition of these penalties (referring to the penalties defined in Article 365), the courts shall exercise their sound discretion without regard to the rules prescribed in Article 64." (Portion in parenthesis supplied) virtual law library In the case now before Us, the penalty for homicide thru reckless imprudence with violation of the Automobile Law is prision correccional in its medium and maximum periods with a duration from two years, four months, and one day to six years. Applying the Indeterminate Sentence Law to which appellant is entitled 3 the imposable penalty covers a minimum to be taken from the penalty one degree lower than that prescribed by law or arresto mayor in its maximum period to prision correccional in its minimum period, i.e. four months and one day to two years and four months, and a maximum to be taken in turn from the penalty prescribed for the offense the duration of which is from two years, four months and one day to six years. The determination of the minimum and maximum terms is left entirely to the discretion of the trial court, the exercise of which will not be disturbed on appeal unless there is a clear abuse. 4 virtual law library The penalty imposed by the trial court is well within the periods we have given above except for the one day excess in the minimum thereof. The minimum of the indeterminate sentence given by His Honor the trial Judge should have been "two years and four months of prision correccional" instead of "two years, four months and one day", because with the addition of one day the minimum term fell within the range of the penalty prescribed for the offense in contravention of the provisions of the Indeterminate Sentence Law. On this score, there is need to correct the minimum of the indeterminate penalty imposed by the court a quo.virtualawlibrary virtual law library

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As regards the second issue raised by appellant, We do not find any reversible error in the judgment awarding to the heirs of the deceased P4,000.00 as moral damages and another P4,000.00 as exemplary damages in addition to P12,000.00 byway of actual damages.virtualawlibrary virtual law library Moral damages compensate for mental anguish, serious anxiety and moral shock suffered by the victim or his family as the proximate result of the wrongful act, 5 and they are expressly recoverable where a criminal offense result in physical injuries as in the instant case before Us which in fact culminated in the death of the victim. 6 virtual law library In People vs. Pantoja, L-18793, Oct. 11, 1968, 25 SCRA 468, this Court fixed the sum of P12,000.00 as compensatory damages for a death caused by a crime (Art. 2206 of the Civil Code) and it was there stated that, in proper cases, the courts may adjudge additional sums by way of moral damages and exemplary damages.virtualawlibrary virtual law library The determination of the amount which would adequately compensate the victim or his family in a criminal case of this nature is left to the discretion of the trial judge whose assessment will not be disturbed on appeal unless there is a manifest showing that the same is arbitrary or excessive, for it has been said that "(T)here can be no exact or uniform rule for measuring the value of a human life and the measure of damages cannot be arrived at by precise mathematical calculation, but the amount recoverable depends on the particular facts and circumstances of each case." (25 C.J.S., 1241, cited in Alcantara vs. Surro, et al., 93 Phil. 472, 477) virtual law library With respect to the exemplary damages awarded by the trial court, the same are justified by the fact that the herein appellant without having been issued by competent authority a license to drive a motor vehicle, wilfully operated a BHP dump truck and drove it in a negligent and careless manner as a result of which he hit a pedestrian who died from the injuries sustained by him. Exemplary damages are corrective in nature and are imposed by way of example or correction for the public good (Art. 2229, Civil Code), and the situation before Us calls for the imposition of this kind of damages to deter others from taking into their hands a motor vehicle without being qualified to operate it on the highways thereby converting the vehicle into an instrument of death.virtualawlibrary virtual law library WHEREFORE, the appealed decision is hereby MODIFIED in that the minimum term is reduced by one day. The herein appellant is sentenced therefore to an indeterminate penalty ranging from TWO (2) YEARS and FOUR (4) MONTHS of prision correccional as minimum to SIX (6) YEARS also of prision correccional as maximum. In all other respects, the decision stands. Without pronouncement as to costs.

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