SECOND DIVISION

[G.R. No. 124212. June 5, 1998]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. WILFREDO FELOTEO, accused-appellant.

DECISION
PUNO, J.:
Accused WILFREDO FELOTEO was charged with and convicted of the crimes of Murder, as defined and
penalized under Article 248 of the Revised Penal Code, and Illegal Possession of Firearm, a violation of Section
1 of Presidential Decree No. 1866.
The Informations against accused read:
In Criminal Case No. 11109
"That on or about the 6th day of May, 1993, in the evening, at Sitio Nagbaril, Barangay Bintuan, Municipality
of Coron, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the said
accused, with evident premeditation and treachery, while armed with a firearm and with intent to kill, did
then and there willfully, unlawfully and feloniously shoot with his firearm, to wit: an armalite rifle, one SONNY
SOTTO, hitting him on the vital part of his body and inflicting upon him a gunshot wound on the left side of his
chest, thru and thru, which injury was the direct and immediate cause of his instantaneous death. (emphasis
ours)
"CONTRARY TO LAW and committed with aggravating circumstance of treachery."
In Criminal Case No. 11644
"That on or about the 6th day of May, 1993, and prior thereto, at Sitio Nagbaril, Barangay Bintuan,
Municipality of Coron, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court,
the said accused did then and there willfully, unlawfully and feloniously have in his possession, custody and
control, one armalite rifle with Serial No. 9035914 and ammunitions, without any license or permit to possess
the same and that this firearm was used in shooting to death one SONNY SOTTO in a case of Murder filed with
the RTC of Palawan and Puerto Princesa City, docketed as Criminal Case No. 11109 and that this crime have
no relation or in furtherance of the crime of rebellion or subversion. (emphasis ours)
"CONTRARY TO LAW."
When arraigned, accused pled not guilty. Trial ensued.
The records show that in the evening of May 6, 1993, the victim, SONNY SOTTO, and his friends, ARNEL
ABELEDA and JOHNNY ABREA, were walking along the highway in Barangay Bintuan, Coron, Province of
Palawan. They had a few drinks earlier that day and were on their way home to Sitio Nagbaril. Abrea walked
ahead of the group, about thirteen meters away from Sotto, followed by Abeleda. They were in a lively mood
as Abeleda playfully walked backwards, facing Sotto.[1]

The accused, WILFREDO FELOTEO, appeared on the opposite side of the road and walked past Abrea and
Abeleda. He was armed with an armalite rifle. Abeleda and Abrea recognized the accused, their barriomate,
as the moon was shining brightly. They did not pay much attention to the accused as Abeleda was playing
"habulan" with Sotto. Without uttering a word, the accused aimed the armalite at Sotto and pressed its
trigger. Sotto was hit above the left chest and fell on the ground, face down. Abeleda and Abrea scampered
away to find help, while the accused fled from the crime scene. [2] Ten (10) minutes later, Abeleda and Abrea,
accompanied by Barangay Tanod Tito Abrina and a certain Inyong Adion, returned to the locus criminis. They
found Sotto dead.
Sotto was brought to the hospital for autopsy. The Autopsy Report showed that he sustained a gunshot
wound, with the bullet entering the left side of his collarbone and exiting at the spinal cord. The bullet came
from an M-16 armalite rifle. He also had abrasions on the knees and face. Dr. Hew G. Curameng of the
Palawan Provincial Hospital opined that Sotto fell on his knees before he slumped on the ground, face
down. There were no powder burns on his body, indicating that the victim was shot from a distance. The
cause of death was massive blood loss secondary to gunshot wound.[3]
The firearm used in the shooting incident belongs to SPO2 Roman Adion. On May 6, 1993, SPO2 Adion
went to the house of Teofisto Alaquin in Sitio Nagbaril. He brought with him his official service firearm, an M16 armalite rifle,[4] as he has been ordered to go to Jandanao the next day to investigate a land dispute. He
slept early. At around 6:30 p.m., Alaquin woke him up and informed him that the accused stole his armalite.
SPO2 Adion, together with Nazario Adion and Frank Adion, immediately looked for the accused. They heard a
gunshot coming from a distance of about four hundred (400) meters and rushed to the place where it
emanated. They saw Sotto lying prostrate on the road, shot on the chest. SPO2 Adion suspected that his
armalite was used in the shooting incident and he continued his hunt for the accused. The next day, May 7,
1993, at 5:00 a.m., he nabbed the accused in Sitio Cabugao, five (5) kilometers away from the crime
scene. The accused surrendered the armalite to him. Upon inspection, SPO2 Adion found nineteen (19)
bullets left in the armalite. There were twenty (20) bullets inside the armalite chamber and magazine before it
was stolen.[5]
SPO4 Jose Ansay, Chief of the Firearm and Explosive Unit of the Philippine National Police (PNP) in
Tiniguiban, Puerto Princesa City, Palawan, affirmed that the accused was not duly licensed to carry a
firearm.[6]
The accused denied that he stole SPO2 Adion's armalite and alleged that the shooting of Sotto was an
accident. He averred that on May 6, 1993, he was in his sister's house in Barangay Bintuan, Coron, when SPO2
Adion passed by and invited him over to the place of Teofisto Alaquin in Nagbaril. They boarded SPO2 Adion's
tricycle and arrived at Nagbaril at about 3:00 p.m. Frank Adion dropped by the house of Alaquin and
borrowed the tricycle of SPO2 Adion. Frank Adion later returned on foot and told SPO2 Adion that the
tricycle's engine broke down so he left it along the road. SPO2 Adion checked on his tricycle and left behind
his armalite rifle. Before leaving, he instructed the accused to wait for him at Alaquin's house. [7]
After thirty minutes, the accused decided to follow SPO2 Adion. He took the armalite and walked the
road leading to Bintuan. At about 7:00 p.m., he met Sonny Sotto's group. They zigzagged as they walked. In
jest, the accused said to Sotto, "Boots, don't get near me, I'll shoot you." He pointed the armalite to Sotto and
pressed its trigger, allegedly unaware that it was loaded. It fired and hit Sotto. The accused fled but was
apprehended by SPO2 Adion the following day. He told SPO2 Adion that he accidentally shot Sotto.[8]
After trial, the accused was found guilty as charged.[9] He was sentenced to suffer the penalties
of reclusion perpetua, for murder, and imprisonment of twenty (20) years, for illegal possession of firearm. He
was further ordered to pay the heirs of Sotto the amount of fifty thousand pesos (P50,000.00), as civil
indemnity.

In this appeal, appellant contends:

"THE TRIAL COURT ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCE OF TREACHERY AS ATTENDING
THE COMMISSION OF THE CRIME ALLEGED AND IN HOLDING ACCUSED-APPELLANT GUILTY OF MURDER IN
THE KILLING OF SONNY SOTTO."
We affirm the judgment of conviction.
We reject the argument of the appellant that he should not have been convicted for murder as treachery
was not duly established by the prosecution. Allegedly, Sotto knew of the impending attack for it was frontal.
Moreover, Sotto was warned, albeit jokingly, that he was going to be shot.
Under par. 16, Article 14 of the Revised Penal Code, the qualifying circumstance of treachery is present
when the offender employs means, methods, or forms in the execution of the crime which tend directly and
especially to insure its execution without risk to himself arising from any defensive or retaliatory act which the
victim might make.[10] The settled rule is that treachery can exist even if the attack is frontal if it is sudden and
unexpected, giving the victim no opportunity to repel it or defend himself. What is decisive is that the
execution of the attack, without the slightest provocation from a victim who is unarmed, made it impossible
for the victim to defend himself or to retaliate.[11]
In the case at bar, treachery is present for there was a sudden attack against the unarmed Sotto. When
Sotto and his friends encountered appellant on the road, they were in a "jovial mood" as they just came from
a drinking spree. Although they saw appellant carrying an armalite, they did not suspect anything untoward to
happen. However, without any provocation, appellant shot Sotto. The fact that the attack was frontal cannot
negate treachery. The shooting was unexpected. There is no showing that the alleged warning given by
appellant to Sotto afforded the latter sufficient time to defend himself. Indeed, Sotto could not defend
himself as he was unarmed and a bit drunk-- as observed by the appellant himself, the victim was walking in a
zigzag manner. There was no way for Sotto to avoid the armalite bullets.
We now come to the penalty imposed on appellant for the illegal possession of firearm in view of the
recent amendments to P.D. No. 1866 by R.A. No. 8294.
Appellant was convicted under Section 1 of P.D. No. 1866, the governing law at the time the crime was
committed. It provides:
"SEC. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms, Ammunition or
Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition.- The penalty
of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall
unlawfully manufacture, deal in, acquire, dispose or possess any firearm, part of firearm, ammunition of
machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be
imposed." (emphasis ours)
The penalty for the aggravated form of illegal possession of firearm under P.D. No. 1866 is death. Since
at that time, the death penalty cannot be enforced in view of Article III (19) (1) of the 1987 Constitution,
appellant should have been sentenced to serve the penalty of reclusion perpetua,[12] not twenty (20) years of
imprisonment.
Nonetheless, Republic Act No. 8294, amended P.D. No. 1866, by reducing the penalties for simple and
aggravated forms of illegal possession of firearms.[13] The law now provides:

"Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or

Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition.- The penalty of
prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000.00)
shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any
low powered firearm such as rimfire handgun, .380 or .32 and other firearm of similar firepower, ammunition,
or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or
ammunition: Provided, That no other crime was committed.
The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000.00) shall be
imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter
than .38 caliber and 9 millimeter such as caliber .40, .41, .45 and also lesser caliber firearms but considered
powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of
full automatic and by burst of two or three: Provided, however, That no other crime was committed by the
person arrested.
If homicide or murder is committed with the use of unlicensed firearm, such use of an unlicensed firearm shall
be considered as an aggravating circumstance. (emphasis ours)
xxx

xxx

xxx

Sec. 5. Coverage of the Term Unlicensed Firearm. - The term unlicensed firearm shall include:
1) firearms with expired license, or
2) unauthorized use of licensed firearm in the commission of the crime."
Clearly, the penalty for illegal possession of high powered firearm is prision mayor in its minimum period and a
fine of P30,000.00. In case homicide or murder is committed with the use of unlicensed firearm, such use of
unlicensed firearm shall be merely considered as an aggravating circumstance.
The enactment of R.A. No. 8294 can be given retroactive effect as it favors the appellant. [14] So we held in
People vs. Simon,[15] viz:
"Since obviously, the favorable provisions of Republic Act 7659 could neither have been involved or invoked in
the present case, a corollary question would be whether this court, at the present stage, can sua sponte apply
the provisions of Article 22 to reduce the penalty to be imposed on appellant. That issue has likewise been
resolved in the cited case of People vs. Moran, et al., ante., thus:
`x x x. The plain precept contained in article 22 of the Penal Code, declaring the retroactivity of penal laws in
so far as they are favorable to persons accused of a felony, would be useless and nugatory if the courts of
justice were not under obligation to fulfill such duty, irrespective of whether or not the accused has applied
for it, just as would also all provisions relating to the prescription of the crime and the penalty.'
If the judgment which could be affected and modified by the reduced penalties provided in Republic Act No.
7659 has already become final and executory or the accused is serving sentence thereunder, then practice,
procedure and pragmatic consideration would warrant and necessitate the matter being brought to the
judicial authorities for relief under a writ ofhabeas corpus." (footnote omitted)

As mentioned above, the penalty for simple illegal possession of high powered firearm is prision mayor
in its minimum period.[16] This penalty was taken from the Revised Penal Code, hence, although P.D. No.
1866, as amended by RA 8294, is a special law, the rules in said Code for graduating penalties by degrees or
determining the proper period should be applied.[17]
In the case at bar, an unlicensed firearm was used in committing murder, thus, aggravating the crime and
increasing the imposable penalty to the maximum period of prision mayor minimum, the duration of which
ranges from seven (7) years, four (4) months and one (1) day to eight (8) years. [18]
We determine the minimum and maximum sentence pursuant to the first part of Section 1 of the
Indeterminate Sentence Law[19] which directs that "in imposing a prison sentence for an offense punished by
the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate
sentence, the maximum term of which shall be that which, in view of the attending circumstances, could be
properly imposed under the rules of said Code, and the minimum of which shall be within the range of the
penalty next lower to that prescribed by the Code for the offense."
Accordingly, the minimum range of the indeterminate sentence shall be taken from any of the periods
of prision correccional maximum, the penalty next lower in degree to the penalty of prision
mayor minimum. Prision correccional maximum has a duration of four (4) years, two (2) months and one (1)
day to six (6) years. On the other hand, the maximum penalty to be imposed, taking into consideration the
aggravating circumstance attending the commission of the crime, shall be taken from the maximum period of
prision mayor minimum which ranges from seven (7) years, four (4) months and one (1) day to eight (8) years.
IN VIEW WHEREOF, the judgment against appellant in Criminal Case Nos. 11109 (for Murder) and
Criminal Case No. 11644 (for Illegal Possession of Firearm) is AFFIRMED, with the MODIFICATION that, in
Criminal Case No. 11644, appellant should be sentenced, as he is hereby sentenced, to an indeterminate
penalty of six (6) years of prision correccional, as the minimum term, and eight (8) years of prision
mayor minimum, as the maximum term. No costs.
SO ORDERED.
Regalado (Chairman), Mendoza and Martinez, JJ., concur.
Melo, J., on leave.

[1]

TSN, September 12, 1994, pp. 11-12, 18, 27-28, 33.

TSN, September 12, 1994, pp. 18, 26, 35.
[3]
Exhibit "F"; TSN, March 28, 1995, pp. 15-16, 20-22, 24-27.
[4]
Bearing serial number 9035914.
[5]
TSN, September 13, 1994, pp. 7-8, 11-12, 15-21, 24, 27, 30-37, 59.
[6]
Exhibit "C"; TSN, February 27, 1996, p. 7.
[7]
TSN, November 13, 1995, pp. 5-6, 9-12.
[8]
Ibid., pp. 13-16.
[9]
Decision, dated December 6, 1995; Penned by Presiding Judge Eustaquio Z. Gacott, Jr.
[10]
People vs. Santos, G.R. No. 94545, April 4, 1997, 270 SCRA 650.
[11]
People vs. Apongan, G.R. No. 112369, April 4, 1997, 270 SCRA 713; People vs. Javier, G.R. No. 84449,
March 4, 1997, 269 SCRA 181.
[12]
People vs. De Gracia, G.R. Nos. 102009-10, July 6, 1994, 233 SCRA 716; People vs. Somooc, G.R. No.
100921, June 2, 1995, 244 SCRA 731.
[13]
It was approved on June 6, 1997 and published in the newspapers on June 21, 1997, thus taking effect
fifteen (15) days thereafter.
[2]

[14]

See Article 22 of the Revised Penal Code.

G.R. No. 93028, July 29, 1994, 234 SCRA 555, 570-571.
[16]
It ranges from six (6) years and one day to eight (8) years.
[17]
People vs. Simon, supra. See also People vs. Lian, G.R. No. 115988, March 29, 1996, 255 SCRA 532 and
People vs. Padilla, G.R. No. 121917, March 12, 1997, 269 SCRA 402.
[18]
The medium period ranges from 6 years, 8 months and 1 day to 7 years and 4 months, while
the minimum period ranges from 6 years and 1 day to 6 years and 8 months.
[15]

[19]

See People vs. Simon, supra, where we held:

"6.
The final query is whether or not the Indeterminate Sentence Law is applicable to the case now
before us. x x x The more important aspect, however, is how the indeterminate sentence shall be
ascertained.
"It is true that Section 1 of said law, after providing for indeterminate sentence for an offense under the
Revised Penal Code, states that `if the offense is punished by any other law, the court shall sentence the
accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by
said law and the minimum shall not be less than the minimum term prescribed by the same.' We hold that
this quoted portion of the section indubitably refers to an offense under a special law wherein the penalty
imposed was not taken from and is without reference to the Revised Penal Code, as discussed in the preceding
illustrations, such that it may be said that the `offense is punished' under the law."

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. Nos. 104238-58

June 3, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
CORA ABELLA OJEDA, appellant.
DECISION
CORONA, J:
For review is the decision1 dated June 21, 1991 of the Regional Trial Court of Manila, Branch 38, the dispositive
portion of which read:
WHEREFORE, the Court finds accused Cora Abella Ojeda guilty beyond reasonable doubt of the crime
of Estafa as defined and penalized under paragraph 2(d) of Article 315 of the Revised Penal Code, as
amended by Rep. Act 4885, in Criminal Case No. 88-66228 and hereby sentences her to suffer a
penalty of reclusion perpetua, with the accessories provided by law and with credit for preventive
imprisonment undergone, if any, in accordance with Article 29 of the Revised Penal Code as amended,
and to pay complainant Ruby Chua the amount of Two Hundred Twenty Eight Thousand Three
Hundred Six (P228,306.00) Pesos with interests thereon from the time of demand until fully paid.
Likewise, the Court also finds the said accused guilty for Violation of Batas Pambansa Blg. 22 in Criminal
Cases Nos. 88- 66230, 88-66232, 88-66235 to 88-66240, 88-66242, 88-66243, 88- 66245 to 88-66248
(14) counts and hereby sentences her to suffer a penalty of one year of imprisonment for each count.
On the other hand, the other charges docketed as Criminal Cases Nos. 88- 66229, 88-66231, 88-66233,
88-66234, 88-66241 and 88-66244 are hereby dismissed for insufficiency of evidence.
Costs against accused in all instances.2
Appellant Cora Abella Ojeda was charged in 21 separate Informations for estafa in Criminal Case No. 88-66228
and for violation of Batas Pambansa (BP) 22 in Criminal Case Nos. 88-66229 to 88-66248.
The Information charging Ojeda with estafa read:
That on or about the first week of November, 1983, in the City of Manila, Philippines, the said accused did
then and there willfully, unlawfully and feloniously defraud RUBY CHUA in the following manner, to wit: the
said accused, well knowing that she did not have sufficient funds in the bank and without informing the said
Ruby Chua of such fact drew, made out and issued to the latter the following post-dated Rizal Commercial
Banking Corporation checks, to wit:
Check No. Date
1. 033550

Amount

Nov.
P17,100.00
5,

1983
Nov.
2. 041782 5,
5,392.34
1983
Nov.
3. 042935 6,
1,840.19
1983
Nov.
4. 041799 9,
11,953.38
1983
Nov.
5. 033530 10, 19,437.34
1983
Nov.
6. 041714 10, 26, 890.00
1983
Nov.
7. 042942 10, 1,941.59
1983
Nov.
8. 041783 12, 5,392.34
1983
Nov.
9. 041800 14, 11,953.39
1983
Nov.
10. 041788 15, 3,081.90
1983
Nov.
11. 033529 15, 19,437.34
1983
Nov.
12. 041784 18, 5,392.34
1983
Nov.
13. 042901 18, 11,953.38
1983
Nov.
14. 042902 23, 11,953.38
1983
Nov.
15. 041785 25, 5,392.34
1983

Nov.
16. 042903 29, 11,953.38
1983
Nov.
17. 033532 29, 13,603.22
1983
Nov.
18. 041786 30, 5,392.34
1983
Dec.
19. 042905 8,
11,953.39
1983
Dec.
20. 043004 10, 2,386.25
1983
Dec.
21. 042907 15, 11,953.38
1983
Dec.
22. 042906 18, 11,953.39
1983
P228,306.60
in payment of various fabrics and textile materials all in the total amount of P228,306.60 which the said
accused ordered or purchased from the said RUBY CHUA on the same day; that upon presentation of the said
checks to the bank for payment, the same were dishonored and payment thereof refused for the reason
Account Closed, and said accused, notwithstanding due notice to her by the said Ruby Chua of such dishonor
of the said checks, failed and refused and still fails and refuses to deposit the necessary amount to cover the
amount of the checks to the damage and prejudice of the said RUBY CHUA in the aforesaid amount
of P228,306.60, Philippine currency.
Contrary to law.
The Informations charging Ojeda for violation of BP 22 were similarly worded except for the amounts of the
checks, the check numbers and the dates of the checks:
That on or about the first week of November 1983, in the City of Manila, Philippines, the said accused
did then and there wilfully, unlawfully and feloniously make or draw and issue to RUBY CHUA to apply
on account or for value Rizal Commercial Banking Corp. Check No. 041784 dated November 18, 1983
payable to Ruby Chua in the amount of P5,392.34, said accused well knowing that at the time of issue
he/she/they did not have sufficient funds in or credit with the drawee bank or payment of such check
in full upon its presentment, which check, when presented for payment within ninety (90) days from
the date thereof was subsequently dishonored by the drawee bank for insufficiency of funds, and
despite receipt of notice of such dishonor, said accused failed to pay said complainant the amount of
said check or to make arrangement for full payment of the same within five (5) banking days after
receiving said notice.

Contrary to law.
The pertinent facts of the case follow.
Appellant Cora Abella Ojeda used to buy fabrics (telas) from complainant Ruby Chua. For the three years
approximately she transacted business with Chua, appellant used postdated checks to pay for the fabrics she
bought. On November 5, 1983, appellant purchased from Chua various fabrics and textile materials
worthP228,306 for which she issued 22 postdated checks bearing different dates and amounts.
Chua later presented to the bank for payment check no. 033550 dated November 5, 1983 in the amount
ofP17,1003 but it was dishonored due to "Account Closed."4 On April 10, 1984, Chua deposited the rest of the
checks but all were dishonored for the same reason.5 Demands were allegedly made on the appellant to make
good the dishonored checks, to no avail.
Estafa and BP 22 charges were thereafter filed against appellant. The criminal cases were consolidated and
appellant, on arraignment, pleaded not guilty to each of the charges.
On the whole, appellants defense was grounded on good faith or absence of deceit, lack of notice of dishonor
and full payment of the total amount of the checks.
With the exception of six checks6 which did not bear her signature, appellant admitted that she issued the
postdated checks which were the subject of the criminal cases against her. She, however, alleged that she told
Chua not to deposit the postdated checks on maturity as they were not yet sufficiently funded. Appellant also
claimed that she made partial payments to Chua in the form of finished garments worth P50,000. This was not
rebutted by the prosecution.
The trial court convicted appellant of the crime of estafa as defined and penalized under paragraph 2(d) of
Article 315 of the Revised Penal Code (RPC), and sentenced her to reclusion perpetua. The trial court also
convicted appellant of violation of BP 22 for issuing bouncing checks. However, the court a quo held her guilty
of only 14 counts out of the 22
bouncing checks issued. The court reasoned:
xxx This is due to the fact that of the 22 checks, two of them are not covered by the indictment. This
refers to Check No. 042935 dated November 6, 1983 in the amount of P1,840.19 (Exhibit D) and Check
No. 042942 dated November 10, 1983 in the amount of P1,941.59 (Exhibit F). And of the total number
of checks, six of them were not signed by the accused but by the latters husband (Exhibits C,H,J,M,R
and O). The accused should not be liable for the issuance of the 6 checks in the absence of any showing
of conspiracy.7
Appellant appealed to this Court, seeking acquittal. Her counsel, however, failed to file the appellants brief
within the prescribed period. Her appeal was thus dismissed in a resolution of this Court dated October 14,
1992.8
In her motion for reconsideration, appellant asked this Court to reverse its order of dismissal in the interest of
substantial justice and equity.9 We initially found no compelling reason to grant her motion and resolved to
deny with finality appellants MR in a resolution dated February 3, 1993.10 Appellant thereafter filed a "Second
and Urgent Motion for Reconsideration," attaching thereto an "Affidavit of Desistance" of complainant Ruby
Chua which stated in part:

xxx

xxx

x x x.

2. that the defendant Mrs. Cora Ojeda has already fully paid her monetary obligation to me in the
amount ofP228,306.00 which is the subject of the aforementioned cases;
xxx

xxx

x x x.

5. That as the private complainant, I am now appealing to the sense of compassion and humanity of
the good justices of the Supreme Court to reconsider the appeal of Mrs. Cora Ojeda and I solemnly
pray that the criminal liability be extinguished with her civil liability.11
In a resolution dated March 17, 1993,12 this Court denied the second MR for having been filed without leave of
court. In the same resolution, this Court ordered the entry of judgment in due course.
Appellant thereafter filed another motion dated April 21, 1993, praying that she be recommended to then
President Fidel V. Ramos for executive clemency. In support of such motion, she once more attached the
affidavit of desistance13 of complainant Ruby Chua which categorically declared that "the defendant, Ms. Cora
Ojeda, (had) already fully paid her monetary obligations to (Chua) in the amount of P228,306 which (was) the
subject of the aforementioned cases."14
In view of such special circumstances, this Court issued a resolution dated June 9, 1993 15 recalling its
resolutions dated October 14, 1992, February 3, 1993 and March 17, 1993 for humanitarian reasons and in the
interest of justice, and in order that this Court may resolve appellants appeal on the merits. 16
Hence, the instant appeal with the following assignments of error:
I.
THE LOWER COURT ERRED IN FINDING THAT DECEIT WAS EMPLOYED BY ACCUSED APPELLANT WHEN
SHE ISSUED THE CHECKS TO THE PRIVATE COMPLAINANT.
II.
THE LOWER COURT ERRED IN NOT FINDING THAT THE ISSUANCE BY THE ACCUSED-APPELLANT OF THE
CHECKS TO THE PRIVATE COMPLAINANT WAS MERELY A MODE OF PAYMENT WHICH ARRANGEMENT
HAD BEEN THEIR PRACTICE FOR THREE (3) YEARS.
III.
THE LOWER COURT ERRED IN NOT FINDING THAT GOOD FAITH IS A VALID DEFENSE AGAINST ESTAFA
BY POSTDATING A CHECK
IV.
THE LOWER COURT ERRED IN CONVICTING THE ACCUSED OF FOURTEEN (14) COUNTS OF B.P. 22
WHEN THERE WAS NO PROOF OF NOTICE OF DISHONOR TO THE ACCUSED.
V.

THE LOWER COURT ERRED IN NOT FINDING THAT SINCE 13 OF THE 14 CHECKS WERE DEPOSITED ONLY
AFTER THE LAPSE OF THE 90 DAY PERIOD, HENCE, THE PRIMA FACIE PRESUMPTION OF KNOWLEDGE
DOES NOT APPLY.17
Appellant firmly denies any criminal liability for estafa. She argues there was no deceit employed when she
issued the checks because she never assured Chua that the checks were funded. Chua allegedly knew all along
that the checks were merely intended to guarantee future payment by appellant.
Appellant further claims good faith in all her transactions with Chua for three years. She explained that her
failure to fund the checks was brought about by the collapse of the countrys economy in the wake of the
Aquino assassination in 1983. The capital flight and financial chaos at that time caused her own business to
shut down when her customers also failed to pay her. Despite the closure of her business, appellant maintains
that she did her best to continue paying Chua what she owed and, when she could no longer pay in cash, she
instead paid in kind in the form of finished goods. But these were not enough to cover her debts.
Nevertheless, she spared no effort in complying with her financial obligations to Chua until she was gradually
able to pay all her debts, a fact fully admitted as true by complainant in her affidavit.
From the foregoing, appellant contends that the element of deceit thru abuse of confidence or false pretenses
was not present. Thus, her guilt was not established with satisfactory proof. Appellant asserts that good faith
on her part was a valid defense to rebut the prima facie presumption of deceit when she issued the checks
that subsequently bounced.
Furthermore, out of the 14 checks cited in the decision of the trial court, only one check was deposited within
90 days from due date. This was check no. 033550 dated November 5, 1983. The rest of the checks were
deposited only on April 10, 1984 or more than 90 days from the date of the last check.18
Appellant also denies she received any notice of dishonor of the checks, contrary to the findings of the trial
court. She was not even aware that cases had already been filed against her for violation of BP 22. Since there
was allegedly no proof of notice19 of the dishonor of the checks, appellant claims that she cannot be convicted
of violation of BP 22.
On the other hand, the Solicitor General contends that appellant was criminally liable for issuing worthless
checks. Complainant Chua accepted the postdated checks as payment because of appellants good credit
standing. She was confident that appellants checks were good checks. Thus, no assurances from appellant
that the checks were sufficiently funded were needed for Chua to part with her goods. And when the checks
later bounced, appellant betrayed the confidence reposed in her by Chua.
The Solicitor General also argues that there was a simultaneous exchange of textile materials and checks
between complainant and appellant. Complainant Chua would not have parted with her telas had she known
that appellants checks would not clear. Appellant obtained something in exchange for her worthless checks.
When she issued them, she knew she had no funds to back up those checks because her account had already
been closed. Yet, she did not inform Chua that the checks could not be cashed upon maturity. She thus
deceived Chua into parting with her goods and the deceit employed constituted estafa.
We grant the appeal.
DECEIT AND DAMAGE AS ELEMENTS OF ESTAFA

Under paragraph 2 (d) of Article 315 of the RPC, as amended by RA 4885, 20 the elements of estafa are: (1) a
check is postdated or issued in payment of an obligation contracted at the time it is issued; (2) lack or
insufficiency of funds to cover the check; (3) damage to the payee thereof. Deceit and damage are essential
elements of the offense and must be established by satisfactory proof to warrant conviction. 21 Thus, the
drawer of the dishonored check is given three days from receipt of the notice of dishonor to cover the amount
of the check. Otherwise aprima facie presumption of deceit arises.
The prosecution failed to prove deceit in this case. The prima facie presumption of deceit was successfully
rebutted by appellants evidence of good faith, a defense in estafa by postdating a check.22 Good faith may be
demonstrated, for instance, by a debtors offer to arrange a payment scheme with his creditor. In this case,
the debtor not only made arrangements for payment; as complainant herself categorically stated, the debtorappellant fully paid the entire amount of the dishonored checks.
It must be noted that our Revised Penal Code was enacted to penalize unlawful acts accompanied by evil
intent denominated as crimes mala in se. The principal consideration is the existence of malicious intent.
There is a concurrence of freedom, intelligence and intent which together make up the "criminal mind" behind
the "criminal act." Thus, to constitute a crime, the act must, generally and in most cases, be accompanied by a
criminal intent.Actus non facit reum, nisi mens sit rea. No crime is committed if the mind of the person
performing the act complained of is innocent. As we held in Tabuena vs. Sandiganbayan:23
The rule was reiterated in People v. Pacana, although this case involved falsification of public
documents and estafa:
"Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non facit
reum, nisi mens sit rea. There can be no crime when the criminal mind is wanting."
American jurisprudence echoes the same principle. It adheres to the view that criminal intent in
embezzlement is not based on technical mistakes as to the legal effect of a transaction honestly entered into,
and there can be no embezzlement if the mind of the person doing the act is innocent or if there is no
wrongful purpose.
The accused may thus prove that he acted in good faith and that he had no intention to convert the money or
goods for his personal benefit.24 We are convinced that appellant was able to prove the absence of criminal
intent in her transactions with Chua. Had her intention been tainted with malice and deceit, appellant would
not have exerted extraordinary effort to pay the complainant, given her own business and financial reverses.
LACK OF NOTICE OF DISHONOR
We also note that the prosecution presented virtually no evidence to show that the indispensable notice of
dishonor was sent to and received by appellant. Excerpts from the following testimony of complainant are
significant:
ATTY. ANGELES:
Q Now, Mrs. Witness, when these checks from Exhibits A to V have bounced, what steps, did you
do?
A I consulted my lawyer and she wrote a Demand Letter.

COURT:
Q What is the name of that lawyer?
A Atty. Virginia Nabora.
ATTY. ANGELES:
Q Now, you mentioned a Demand Letter sent by Atty. Virginia Nabor, I am showing to you this Demand
Letter dated March 16, 1988, will you kindly examine the same if this is the same Demand Letter you
mentioned a while ago?
A Yes, sir.
Q Now, on this second page of this Demand Letter there is a signature above the printed name Virginia
Guevarra Nabor, do you know the signature, Mrs. Witness?
A Yes, that is the signature of my lawyer.
ATTY. ANGELES:
May we request that this Demand Letter dated March 16, 1988 consisting of two (2) pages, Your
Honor, be marked as Exhibit W and that the signature on the second page of this letter of Virginia
Guevarra Nabor be encircled and be marked as Exhibit W-1 and that the attached Registry Receipt,
Your Honor, be marked as Exhibit W-2.
COURT:
Mark them.
ATTY. ANGELES:
Q Now, Mrs. Witness, why do you know that this is the signature of Virginia Guevarra Nabor?
A After preparing that I saw her sign the letter.
Q Now, after sending this Demand Letter, do you know
If the accused herein made payments or replaced
the checks that were issued to you?
COURT:
Q Of course, you assumed that the accused received that letter, that is his basis on the premise that
the accused received that letter?
ATTY. ANGELES:
A Yes, Your Honor.

COURT:
Q What proof is there to show that accused received the letter because your question is premises (sic)
on the assumption that the accused received the letter?
ATTY. ANGELES:
Q Now, do you know Mrs. Witness if the accused received the letter?
A There is a registry receipt.
COURT:
Q Now, later on after sending that letter, did you have communication with the accused?
A I kept on calling her but I was not able to get in touch
with her.
Q But do you know if that letter of your lawyer was received by the accused?
A I was not informed by my lawyer but I presumed that
the same was already received by the accused.
ATTY. ANGELES:
Q Now, aside from sending this Demand Letter, do you know what your lawyer did?
A We filed a case with the Fiscals.25
Aside from the above testimony, no other reference to the demand letter was made by the prosecution. The
prosecution claimed that the demand letter was sent by registered mail. To prove this, it presented a copy of
the demand letter as well as the registry return receipt bearing a signature which was, however, not even
authenticated or identified. A registry receipt alone is insufficient as proof of mailing. 26 "Receipts for
registered letters and return receipts do not prove themselves; they must be properly authenticated in order
to serve as proof of receipt of the letters."27
It is clear from the foregoing that complainant merely presumed that appellant received the demand letter
prepared and sent by her lawyer. She was not certain if appellant indeed received the notice of dishonor of
the checks. All she knew was that a demand letter was sent by her lawyer to the appellant. In fact, right after
complainant made that presumption, her lawyer filed the criminal cases against appellant at the Fiscals
office28without any confirmation that the demand letter supposedly sent through registered mail was actually
received by appellant.
With the evident lack of notice of dishonor of the checks, appellant cannot be held guilty of violation of BP 22.
The lack of such notice violated appellants right to procedural due process. "It is a general rule that when
service of notice is an issue, the person alleging that the notice was served must prove the fact of

service."29 The burden of proving receipt of notice rests upon the party asserting it and the quantum of proof
required for conviction in this criminal case is proof beyond reasonable doubt.
When, during the trial, appellant denied having received the demand letter, it became incumbent upon the
prosecution to prove that the demand letter was indeed sent through registered mail and that the same was
received by appellant. But it did not. Obviously, it relied merely on the weakness of the evidence of the
defense.
This Court therefore cannot, with moral certainty, convict appellant of violation of BP 22. The evident failure
of the prosecution to establish that she was given the requisite notice of dishonor justifies her acquittal. 30
As held in Lao vs. Court of Appeals:31
"It has been observed that the State, under this statute, actually offers the violator a compromise by
allowing him to perform some act which operates to preempt the criminal action, and if he opts to
perform it the action is abated. This was also compared to certain laws allowing illegal possessors of
firearms a certain period of time to surrender the illegally possessed firearms to the Government,
without incurring any criminal liability. In this light, the full payment of the amount appearing in the
check within five banking days from notice of dishonor is a complete defense. The absence of a notice
of dishonor necessarily deprives an accused an opportunity to preclude a criminal prosecution.
Accordingly, procedural due process clearly enjoins that a notice of dishonor be actually served on
petitioner. Petitioner has a right to demand and the basic postulates of fairness require -- that the
notice of dishonor be actually sent to and received by her to afford her the opportunity to avert
prosecution under B.P. 22.
Stated otherwise, responsibility under BP 22 was personal to appellant; hence, personal knowledge of the
notice of dishonor was necessary. Consequently, while there may have been constructive notice to appellant
regarding the insufficiency of her funds in the bank, it was not enough to satisfy the requirements of
procedural due process.
Finally, it is worth mentioning that notice of dishonor is required under both par. 2(d) Art. 315 of the RPC and
Sec. 2 of BP 22. While the RPC prescribes that the drawer of the check must deposit the amount needed to
cover his check within three days from receipt of notice of dishonor, BP 22, on the other hand, requires the
maker or drawer to pay the amount of the check within five days from receipt of notice of dishonor. Under
both laws, notice of dishonor is necessary for prosecution (for estafa and violation of BP 22). Without proof of
notice of dishonor, knowledge of insufficiency of funds cannot be presumed and no crime (whether estafa or
violation of BP 22) can be deemed to exist.
WHEREFORE, the decision of the trial court is hereby REVERSED and SET ASIDE. Appellant Cora Abella Ojeda
is ACQUITTED in Criminal Case No. 88-66228 for estafa and in Criminal Case Nos. 88-66230, 88-66232, 8866235 to 88-66240, 88-66242, 88-66243, 88-66245 to 88-66248 for violation of BP 22.
SO ORDERED.
Vitug, Sandoval-Gutierrez, and Carpio-Morales, JJ., concur.
Footnotes
1

Penned by Judge Arturo U. Barias, Jr.

Rollo, p. 40.

Exhibit "A".

Exhibit "Y".

Exhibits "X", "Y", "AA", "BB" and "CC".

Exhibits "C", "H", "J", "M", "O" and "R".

Record, p. 139.

Rollo, p. 47.

Rollo, p. 49.

10

Rollo, p. 52.

11

Ibid., p. 61.

12

Rollo, p. 62.

13

Rollo, p. 70.

14

Ibid.

15

Rollo, p. 76.

16

Rollo, p. 76.

17

Rollo, pp. 87-88.

18

Section 2 of BP 22 states:
SEC. 2. Evidence of knowledge of insufficient funds. The making, drawing and issuance of a
check payment of which is refused by the drawee because of insufficient funds in or credit with
such bank, when presented within ninety (90) days from the date of the check, shall be prima
facie evidence of knowledge of such insufficiently of funds or credit unless such maker or
drawer pays the holder thereof the amount due thereon, or makes arrangements for payment
in full by the drawee of such check within five (5) banking days after receiving notice that such
check has not been paid by the drawee.

19

Ibid.

20

Art. 315 par. 2(d) of the Revised Penal Code states:

(d) By postdating a check, or issuing a check in payment of an obligation when the offender had
no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of
the check. The failure of the drawer of the check to deposit the amount necessary to cover his
check within three (3) days from receipt of notice from the bank and/or the payee or holder

that said check has been dishonored for lack or insufficiency of funds shall
be prima facie evidence of deceitconstituting false pretense or fraudulent act.
21

People vs. Chua, 315 SCRA 326 [1999].

22

People vs. Gulion, 349 SCRA 610 [2001]; Vallarta vs. Court of Appeals, 150 SCRA 336 [1987]; People
vs.Villapando, 56 Phil. 31 [1931].
23

268 SCRA 332 [1997].

24

Lecaroz vs. Sandiganbayan, 305 SCRA 396 [1999].

25

TSN, December 7, 1989, pp. 37-43.

26

Ting vs. Court of Appeals, 344 SCRA 551 [2000], citing Central Trust Co. vs. City of Des Moines, 218
NW 580.
27

Ting vs. Court of Appeals, ibid.

28

TSN, December 7, 1989, pp. 42-23.

29

Ting vs. Court of Appeals, supra, citing 58 Am Jur 2d, Notice, 45.

30

Caras vs. Court of Appeals, 366 SCRA 371 [2001].

31

Lao vs. Court of Appeals, 274 SCRA 572 [1997].

EN BANC

[G.R. Nos. 115008-09. July 24, 1996]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DANIEL QUIJADA Y CIRCULADO, accused-appellant.

DECISION
DAVIDE, JR., J.:
Accused-appellant Daniel Quijada appeals from the decision of 30 September 1993 of Branch 1
of the Regional Trial Court (RTC) of Bohol convicting him of the two offenses separately charged in two
informations, viz., murder under Article 248 of the Revised Penal Code and illegal possession of firearm in its
aggravated form under P.D. No. 1866, and imposing upon him the penalty of reclusion perpetua for the first
crime and an indeterminate penalty ranging from seventeen years, four months, and one day, as minimum, to
twenty years and one day, as maximum, for the second crime.[1]
The appeal was originally assigned to the Third Division of the Court but was later referred to the
Court en banc in view of the problematical issue of whether to sustain the trial court's judgment in conformity
with
the
doctrine
laid
down
in People vs. Tac[2]
[3]
[4]
[5]
[6]
an, People vs. Tiozon, People vs. Caling, People vs. Jumamoy, People vs. Deunida, Peoplevs. Tiongco,[
7]
People vs. Fernandez,[8] and People vs. Somooc,[9] or to modify the judgment and convict the appellant only
of illegal possession of firearm in its aggravated form pursuant to People vs. Barros,[10] which this Court
(Second Division) decided on 27 June 1995.
The informations read as follows:
CRIMINAL CASE NO. 8178
That on or about the 30th day of December, 1992, in the municipality of Dauis, province of Bohol, Philippines,
and within the jurisdiction of this Honorable Court, the abovenamed accused, with intent to kill and without
any justifiable motive, with treachery and abuse of superior strength, the accused being then armed with a .38
cal. revolver, while the victim was unarmed, suddenly attacked the victim without giving the latter the
opportunity to defend himself, and with evident premeditation, the accused having harbored a grudge against
the victim a week prior to the incident of murder, did then and there willfully, unlawfully and feloniously
attack, assault and shoot Diosdado Iroy y Nesnea with the use of the said firearm, hitting the latter on his head
and causing serious injuries which resulted to his death; to the damage and prejudice of the heirs of the
deceased.
Acts committed contrary to the provision of Art. 248 of the Revised Penal Code, with aggravating circumstance
of nighttime being purposely sought for or taken advantage of by the accused to facilitate the commission of
the crime.[11]
CRIMINAL CASE NO. 8179
That on or about the 30th day of December, 1992, in the municipality of Dauis, province of Bohol, Philippines,
and within the jurisdiction of this Honorable Court, the abovenamed accused, did then and there willfully,
unlawfully and feloniously keep, carry and have in his possession, custody and control a firearm (hand gun)
with ammunition, without first obtaining the necessary permit or license to possess the said firearm from
competent authorities which firearm was carried by the said accused outside of his residence and was used by

him in committing the crime of Murder with Diosdado Iroy y Nesnea as the victim; to the damage and
prejudice of the Republic of the Philippines.
Acts committed contrary to the provisions of P.D. No. 1866.[12]
Having arisen from the same incident, the cases were consolidated, and joint hearings were had. The
witnesses presented by the prosecution were SPO4 Felipe Nigparanon (Acting Chief of Police of Dauis, Bohol),
SPO Gondalino Inte, Dr. Greg Julius Sodusta, Rosita Iroy, and Teodula Matalinis. The defense presented as
witnesses Alfred Aranzado, Edwin Nistal, Julius Bonao, Saturnino Maglupay, and the appellant himself.
The evidence for the prosecution is summarized by the Office of the Solicitor General in the Brief for the
Appellee as follows:
On 25 December 1992, a benefit dance was held at the Basketball Court of Barangay Tinago, Dauis,
Bohol. On this occasion, a fist fight occurred between Diosdado Iroy and appellant Daniel Quijada as the latter
was constantly annoying and pestering the former's sister. Rosita Iroy (TSN, Crim. Cases 8178 & 8179, June
8, 1993, pp. 32-35; August 5, 1993, pp. 14-15).
In the evening of 30 December 1992, another benefit dance/disco was held in the same place. This
benefit dance was attended bv Rosita Iroy, Ariel Dano, Teodora Badayos, Ado Aranzado, Largo Iroy and
Diosdado Iroy.
While Rosita Iroy and others were enjoying themselves inside the dancing area, Diosdado Iroy, Eugene
Nesnea and Largo Iroy, who were then sitting at the plaza (the area where they positioned themselves was
duly lighted and was approximately four meters from the dancing hall), decided to just watch the activities in
the dance hall directly from the plaza.
After dancing, Rosita Iroy decided to leave and went outside the gate of the dance area. Subsequently, or
around 11:30 of the same night, while facing the direction of Diosdado Iroy, Rosita lroy saw appellant
surreptitiously approach her brother Diosdado Iroy from behind. Suddenly, appellant fired his revolver at
Diosdado Iroy, hitting the latter at the back portion of the head. This caused Rosita Iroy to spontaneously
shout that appellant shot her brother; while appellant, after shooting Diosdado Iroy, ran towards the
cornfield.
Diosdado Iroy was immediately rushed by Elmer Nigparanon and Largo Iroy to the hospital but the injury
sustained was fatal. In the meantime, Rosita Iroy went home and relayed to her parents the unfortunate
incident (TSN, Crim Case Nos. 8178 & 8179, June 8, 1993, pp. 9-22, inclusive of the preceding paragraphs).
At around midnight, the incident was reported to then Acting Chief of Police Felipe Nigparanon by Mrs.
Alejandra Iroy and her daughter Teodula Matalinis. The police officer made entries in the police blotter
regarding the shooting and correspondingly, ordered his men to pick up the appellant. But they were unable
to locate appellant on that occasion (TSN, Crim. Case Nos. 8178 & 8179, June 9, 1993, pp. 2-6).
In the afternoon of 31 December 1992, appellant, together with his father Teogenes Quijada went to the
police station at Dauis, Bohol. There and then, appellant was pinpointed by Elenito Nistal and Rosita Iroy as
the person who shot Diosdado Iroy. These facts were entered in the police blotter as Entry No. 1151 (TSN,
Crim. Case Nos. 8178 & 8179, ibid. p. 14, June 14, 1993, pp. 4-6).[13]
The slug was embedded at the midbrain.[14] Diosdado Iroy died of Cardiorespiratory arrest, secondary to
tonsillar herniation, secondary to massive intracranial hemorrhage, secondary to gunshot wound, 1 cm. left
occipital area, transacting cerebellum up to midbrain.[15]

The firearm used by the appellant in shooting Diosdado Iroy was not licensed. Per certifications issued on
26 April 1993, the appellant was not a duly licensed firearm holder as verified from a consolidated list of
licensed firearm holders in the province[16] and was not authorized to carry a firearm outside his residence.[17]
The appellant interposed the defense of alibi, which the trial court rejected because he was positively
identified by prosecution witness Rosita Iroy. It summarized his testimony in this wise:
Daniel Quijada y Circulado, the accused in the instant cases, declared that in the afternoon of December
30, 1992 he was in their house At 6:00 o'clock in the afternoon he went to Tagbilaran City together with Julius
Bonao in a tricycle No. 250 to solicit passengers. They transported passengers until 10:30 o'clock in the
evening. They then proceeded to the Tagbilaran wharf waiting for the passenger boat Trans Asia
Taiwan. Before the arrival of Trans Asia Taiwan they had a talk with Saturnino Maglopay. They were able to
pick up two passengers for Graham Avenue near La Roca Hotel. They then returned to the Tagbilaran wharf
for the arrival of MV Cebu City that docked at 12:10 past midnight. They had a talk with Saturnino Maglopay
who was waiting for his aunties scheduled to arrive aboard MV Cebu City. They were not able to pick up
passengers which, as a consequence, they went home. They had on their way home passengers for the Agora
Public Market. They arrived at the house of Julian Bonao at Bil-isan, Panglao, Bohol at 3:00 o'clock in the
morning of December 31, 1992 where he passed the night. He went home to Mariveles, Dauis, Bohol at 9:00
o'clock in the morning.[18]
The trial court gave full faith and credit to the version of the prosecution and found the appellant guilty
beyond reasonable doubt of the crimes charged and sentenced him accordingly. It appreciated the presence
of the qualifying circumstance of treachery considering that the appellant shot the victim at the back of the
head while the latter was watching the dance. The dispositive portion of the decision dated 30 September
1993 reads as follows:
PREMISES CONSIDERED, in Criminal Case No. 8178, the court finds the accused Daniel Quijada guilty of the
crime of murder punished under Article 248 of the Revised Penal Code and hereby sentences him to suffer an
imprisonment of Reclusion Perpetua, with the accessories of the law and to pay the cost.
In Criminal Case No. 8179, the Court finds the accused Daniel Quijada guilty of the crime of Qualified
Illegal Possession of Firearm and Ammunition punished under Sec. 1 of R.A. No. 1866 as amended, and hereby
sentences him to suffer an indeterminate sentence from Seventeen (17) years Four (4) months and One (1) day,
as minimum, to Twenty (20) years and One (1) day, as maximum, with the accessories of the law and to pay
the cost.
The slug or bullet which was extracted from the brain at the back portion of the head of the victim
Diosdado Iroy is hereby ordered forfeited in favor of the government.
It appearing that the accused Daniel Quijada has undergone preventive imprisonment he is entitled to the
full time he has undergone preventive imprisonment to be deducted from the term of sentence if he has
executed a waiver otherwise he will only be entitled to 4/5 of the time he has undergone preventive
imprisonment to be deducted from his term of sentence if he has not executed a waiver. [19]
On 29 October 1993, after discovering that it had inadvertently omitted in the decision an award of civil
indemnity and other damages in Criminal Case No. 8178, the trial court issued an order directing the appellant
to pay the parents of the victim the amount of P50,000.00 as indemnity for the death of their son and
P10,000.00 for funeral expenses.[20] The order was to form an integral part of the decision.
The decision was promulgated on 29 October 1993.[21]
The appellant forthwith interposed the present appeal, and in his Brief, he contends that the trial court
erred

I
. . . IN CONVICTING ACCUSED-APPELLANT AND GIVING CREDENCE TO THE TESTIMONY OF PROSECUTION
WITNESSES ROSITA IROY AND FELIPE NIGPARANON.
II
. . . IN NOT CONSIDERING THE TESTIMONIES OF DEFENSE WITNESSES EDWIN NISTAL AND ALFRED ARANZADO,
AND IN DISREGARDING THE PICTORIAL EXHIBITS OF THE ACCUSED-APPELLANT PARTICULARLY THE RELATIVE
POSITIONS OF DIOSDADO IROY, ROSITA IROY, EDWIN NISTAL, AND ALFRED ARANZADO.
III
. . . IN FAILING TO CONSIDER THAT PROSECUTION WITNESSES ROSITA IROY AND SP04 FELIPE NIGPARANON
HAD MOTIVES IN FALSELY TESTIFYING AGAINST ACCUSED-APPELLANT.[22]
The appellant then submits that the issue in this case boils down to the identity of the killer of Diosdado
Iroy. To support his stand that the killer was not identified, he attacks the credibility of prosecution witnesses
Rosita Iroy and SP04 Felipe Nigparanon. He claims that the former had a motive "to put him in a bad light"
and calls our attention to her direct testimony that her brother Diosdado, the victim, boxed him on the night
of 25 December 1992 because he allegedly "bothered her." He further asserts that Rosita could not have seen
the person who shot Diosdado considering their respective positions, particularly Rosita who, according to
defense witnesses Nistal and Aranzado, was still inside the dancing area and ran towards the crime scene only
after Diosdado was shot. And, the appellant considers it as suppression of evidence when the prosecution did
not present as witnesses Diosdado's companions who were allegedly seated with Diosdado when he was shot.
As to SPO4 Nigparanon, the appellant intimates improper motives in that the said witness is a neighbor of
the Iroys, and when he testified, a case for arbitrary detention had already been filed against him by the
appellant. The appellant further claims of alleged omissions and unexplained entries in the police blotter.
Finally, the appellant wants us to favorably consider his defense of alibi which, according to him, gained
strength because of the lack of evidence on the identity of the killer. Furthermore, he stresses that his conduct
in voluntarily going to the police station after having been informed that he, among many others, was
summoned by the police is hardly the actuation of the perpetrator of the killing of Diosdado Iroy -- specially so
if Rosita Iroy's claim is to be believed that moments after the shooting she shouted that Daniel Quijada shot
Diosdado Iroy.
In its Appellee's Brief, the People refutes every argument raised by the appellant and recommends that
we affirm in toto the challenged decision.
After a careful scrutiny of the records and evaluation of the evidence adduced by the parties, we find this
appeal to be absolutely without merit.
The imputation of ill-motive on the part of Rosita Iroy and the basis therefor hardly persuade. The
appellant was the one who was boxed by and lost to Diosdado Iroy in their fight on the night of 25 December
1992. It is then logical and consistent with human experience that it would be the appellant who would have
forthwith entertained a grudge, if not hatred, against Diosdado. No convincing evidence was shown that
Rosita had any reason to falsely implicate the appellant in the death of her brother Diosdado.
The claim that Rosita could not have seen who shot her brother Diosdado because, as testified to by
defense witnesses Nistal and Aranzado, she was inside the dancing hall and rushed to her brother only after

the latter was shot is equally baseless. The following testimony of Rosita shows beyond cavil that she saw the
assailant:
Q You said that you were initially dancing inside the dancing place and you went out, about what time
did you get out?
A

11:00 o'clock.

Q And you were standing about two (2) meters from Diosdado Iroy until 11:30 when the incident
happened?
A

Yes, I was standing.

Q And where did you face, you were facing Diosdado Iroy or the dancing area?
A

I was intending to go near my brother. I was approaching and getting near going to my brother
Diosdado Iroy and while in the process I saw Daniel Quijada shot my brother Diosdado Iroy. [23]
xxx

xxx

xxx

Q And in your estimate, how far was your brother Diosdado Iroy while he was sitting at the plaza to the
dancing place?
A

More or less four (4) meters distance.

COURT:
From the dancing hall?
A

Yes, your honor.

Q And in your observation, was the place where Diosdado Iroy was sitting lighted or illuminated?
A

Yes, sir.

Q What kind of light illuminated the place?

A

I do not know what kind of light but it was lighted.

Q Was it an electric light?

A

It is electric light coming from a bulb.

Q Where is that electric bulb that illuminated the place located?

A

It was placed at the gate of the dancing place and the light from the house.

Q You said gate of the dancing place, you mean the dancing place was enclosed at that time and there
was a gate, an opening?
A

Yes, sir.

Q What material was used to enclose the dancing place?

A

Bamboo.

Q And how far was the bulb which was placed near the entrance of the dancing place to the place where
Diosdado Iroy was sitting?
A

Five (5) meters.

Q You mentioned also that there was a light coming from the house, now whose house was that?

The house of spouses Fe and Berto, I do not know the family name.

Q Was the light coming from the house of spouses Fe and Berto an electric light?
A

Yes sir.

Q And in your estimate, how far was the source of light of the house of Fe and Berto to the place where
Diosdado Iroy was sitting?
A

About six (6) meters distance.[24]

xxx

xxx

xxx

Q What was the color of the electric bulb in the gate of the dancing place?
A

The white bulb.[25]

The trial court disbelieved the testimony of Nistal and Aranzado. It explicitly declared:
The factual findings of the Court in the instant case is anchored principally in ". . . observing the attitude and
deportment of witnesses while listening to them speak (People vs. Magaluna, 205, SCRA 266).
thereby indicating that on the basis of the witnesses' deportment and manner of testifying, the declarations of
Nistal and Aranzado failed to convince the trial court that they were telling the truth. Settled is the rule that
the factual findings of the trial court, especially on the credibility of witnesses, are accorded great weight and
respect. For, the trial court has the advantage of observing the witnesses through the different indicators of
truthfulness or falsehood, such as the angry flush of an insisted assertion or the sudden pallor of a discovered
lie or the tremulous mutter of a reluctant answer or the forthright tone of a ready reply; [26] or the furtive
glance, the blush of conscious shame, the hesitation, the sincere or the flippant or sneering tone, the heat, the
calmness, the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath,
the carriage and mien.[27] The appellant has miserably failed to convince us that we must depart from this rule.
Neither are we persuaded by the claimed suppression of evidence occasioned by the non-presentation as
prosecution witnesses any of the companions of Diosdado who were seated with him when he was shot. In
the first place, the said companions could not have seen from their back the person who suddenly shot
Diosdado. In the second place, the testimony of the companions would, at the most, only corroborate that of
Rosita Iroy. Besides, there is no suggestion at all that the said companions were not available to the
appellant. It is settled that the presumption in Section 3 (e), Rule 131 of the Rules of Court that evidence
willfully suppressed would be adverse if produced does not apply when the testimony of the witness is merely
corroborative or where the witness is available to the accused.[28]
The alleged improper motive on the part of SP04 Nigparanon simply because he is a neighbor of the Iroy;
remains purely speculative, as no evidence was offered to establish that such a relationship affected SP04
Nigparanon's objectivity. As a police officer, he enjoyed in his favor the presumption of regularity in the
performance of his official duty.[29] As to the alleged omissions and unexplained entries in the police blotter,
the same were sufficiently clarified by SP04 Nigparanon.
The defense of alibi interposed by the appellant deserves scant consideration. He was positively identified
by a credible witness. It is a fundamental judicial dictum that the defense of alibi cannot prevail over the
positive identification of the accused.[30] Besides, for that defense to prosper it is not enough to prove that the
accused was somewhere else when the crime was committed; he must also demonstrate that it was physically
impossible for him to have been at the scene of the crime at the time of its commission.[31] As testified to by
defense witness Julian Bonao, the Tagbilaran wharf, where the appellant said he was, is only about eight to
nine kilometers away from the crime scene and it would take only about thirty minutes to traverse the distance

with the use of a tricycle.[32] It was, therefore, not physically impossible for the appellant to have been at the
scene of the crime at the time of its commission.
Finally, the appellant asserts that if he were the killer of Diosdado Iroy, he would not have voluntarily
proceeded to the police station. This argument is plain sophistry. The law does not find unusual the voluntary
surrender of offenders; it even considers such act as a mitigating circumstance. [33] Moreover, non-flight is not
conclusive proof of innocence.[34]
The evidence for the prosecution further established with moral certainty that the appellant had no
license to possess or carry a firearm. The firearm then that he used in shooting Diosdado Iroy was
unlicensed. He, therefore, committed the crime of aggravated illegal possession of firearm under the second
paragraph of Section 1 of P.D. No. 1866, which reads:
SEC.
1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms, Ammunition or Instruments
Used or Intended to be Used in the Manufacture of Firearms or Ammunition -- The penalty
of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who
shall unlawfully manufacture, deal in, acquire, dispose or possess any firearm, part of firearm, ammunition or
machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be
imposed.
In
light
of
the
doctrine
enunciated
in People vs. Tac-an,[35] and
reiterated
in People vs. Tiozon,[36] People vs. Caling,[37] People vs. Jumamoy,[38] People vs. Deunida,[39]People vs. Tiongco,[4
0]
People vs. Fernandez,[41] and People vs. Somooc,[42] that one who kills another with the use of an unlicensed
firearm commits two separate offenses of (1) either homicide or murder under the Revised Penal Code, and (2)
aggravated illegal possession of firearm under the second paragraph of Section 1 of P.D. No. 1866, we sustain
the decision of the trial court finding the appellant guilty of two separate offenses of murder in Criminal Case
No. 8178 and of aggravated illegal possession of firearm in Criminal Case No. 8179.
Although Tac-an and Tiozon relate more to the issue of whether there is a violation of the constitutional
proscription against double jeopardy if an accused is prosecuted for homicide or murder and for aggravated
illegal possession of firearm, they at the same time laid down the rule that these are separate offenses, with
the first punished under the Revised Penal Code and the second under a special law; hence, the constitutional
bar against double jeopardy will not apply. We observed in Tac-an:
It is elementary that the constitutional right against double jeopardy protects one against a second or later
prosecution for the same offense, and that when the subsequent information charges another and different
offense, although arising from the same act or set of acts, there is no prohibited double jeopardy. In the case
at bar, it appears to us quite clear that the offense charged in Criminal Case No. 4007 is that of unlawful
possession of an unlicensed firearm penalized under a special statute, while the offense charged in Criminal
Case No. 4012 was that of murder punished under the Revised Penal Code. It would appear self-evident that
these two (2) offenses in themselves are quite different one from the other, such that in principle, the
subsequent filing of Criminal Case No. 4012 is not to be regarded as having placed appellant in a prohibited
second jeopardy.
And we stressed that the use of the unlicensed firearm cannot serve to increase the penalty for homicide or
murder; however, the killing of a person with the use of an unlicensed firearm, by express provision of P.D.
No. 1866, shall increase the penalty for illegal possession of firearm.

In Tiozon, we stated:
It may be loosely said that homicide or murder qualifies the offense penalized in said Section 1 because it is a
circumstance which increases the penalty. It does not, however, follow that the homicide or murder is
absorbed in the offense; otherwise, an anomalous absurdity results whereby a more serious crime defined
and penalized in the Revised Penal Code is absorbed by a statutory offense, which is just
amalum prohibitum. The rationale for the qualification, as implied from the exordium of the decree, is to
effectively deter violations of the laws on firearms and to stop the "upsurge of crimes vitally affecting public
order and safety due to the proliferation of illegally possessed and manufactured firearms, x x x." In fine then,
the killing of a person with the use of an unlicensed firearm may give rise to separate prosecutions for (a)
violation of Section 1 of P.D. No. 1866 and (b) violation of either Article 248 (Murder) or Article 249 (Homicide)
of the Revised Penal Code. The accused cannot plead one as a bar to the other; or, stated otherwise, the rule
against double jeopardy cannot be invoked because the first is punished by a special law while the second,
homicide or murder, is punished by the Revised Penal Code.
In People vs. Doriguez, [24 SCRA 163, 171], We held:
It is a cardinal rule that the protection against double jeopardy may be invoked only for the same offense or
identical offenses. A simple act may offend against two (or more) entirely distinct and unrelated provisions of
law, and if one provision requires proof of an additional fact or element which the other does not, an acquittal
or conviction or a dismissal of the information under one does not bar prosecution under the other. Phrased
elsewise, where two different laws (or articles of the same code) defines two crimes, prior jeopardy as to one
of them is not obstacle to a prosecution of the other, although both offenses arise from the same fact, if each
crime involves some important act which is not an essential element of the other.
In People vs. Bacolod [89 Phil. 621], from the act of firing a shot from a sub-machine gun which caused public
panic among the people present and physical injuries to one, informations of physical injuries through reckless
imprudence and for serious public disturbance were filed. Accused pleaded guilty and was convicted in the
first and he sought to dismiss the second on the ground of double jeopardy. We ruled:
The protection against double jeopardy is only for the same offense. A simple act may be an offense against
two different provisions of law and if one provision requires proof of an additional fact which the other does
not, an acquittal or conviction under one does not bar prosecution under the other.
Since the informations were for separate offense[s] -- the first against a person and the second against public
peace and order -- one cannot be pleaded as a bar to the other under the rule on double jeopardy.
In Caling, we explicitly opined that a person charged with aggravated illegal possession of firearm under
the second paragraph of Section 1 of P.D. No. 1866 can also be separately charged with and convicted of
homicide or murder under the Revised Penal Code and punished accordingly. Thus:
It seems that the Court a quo did indeed err in believing that there is such a thing as "the special complex
crime of Illegal Possession of Unlicensed Firearm Used in Homicide as provided for and defined under the 2nd
paragraph of Sec. 1 of P.D. 1866 as amended," and declaring Caling guilty thereof. The legal provision invoked,
"Sec. 1 of P.D. 1866, as amended," reads as follows:
"SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms [or] Ammunition
or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. - The penalty
of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who

shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearm, part of firearm, ammunition or
machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be
imposed."
What is penalized in the first paragraph, insofar as material to the present case is the sole, simple act of a
person who shall, among others, "unlawfully possess any firearm x x x (or) ammunition x x x." Obviously,
possession of any firearm is unlawful if the necessary permit and/or license therefor is not first obtained. To
that act is attached the penalty of reclusion temporal, maximum, to reclusion perpetua. Now, if "with the use
of (such) an unlicensed firearm, a "homicide or murder is committed," the crime is aggravated and is more
heavily punished, with the capital punishment.
The gravamen of the offense in its simplest form is, basically, the fact of possession of a firearm without licens
e. The crime may be denominated simple illegal possession, to distinguish it from its aggravatedform. It is Agg
ravated if the unlicensed firearm is used in the commission of a homicide or murder under the Revised Penal C
ode. But the homicide or murder is not absorbed in the crime of possession of anunlicensed firearm; neither i
s the latter absorbed in the former. There are two distinct crimes that are here spoken of. One is unlawful po
ssession of a firearm, which may be either simple or aggravated,defined and punished respectively by the first
and second paragraphs of Section 1 of PD 1866. The other is homicide or murder, committed with the use of a
n unlicensed firearm. The mere possession of afirearm without legal authority consummates the crime under
P.D. 1866, and the liability for illegal possession is made heavier by the firearm's use in a killing. The killing, wh
ether homicide or murder, isobviously distinct from the act of possession, and is separately punished and defi
ned under the Revised Penal Code. (emphasis supplied)
In Jumamoy, we reiterated Caling and amplified the rationale on why an accused who kills another with
an unlicensed firearm can be prosecuted and punished for the two separate offenses of violation of the
second paragraph of Section 1 of P.D. No. 1866 and for homicide or murder under the Revised Penal
Code. Thus:
Coming to the charge of illegal possession of firearms, Section 1 of P.D. No. 1866 penalizes, inter alia, the
unlawful possession of firearms or ammunition with reclusion temporal in its maximum period
toreclusion perpetua. However, under the second paragraph thereof, the penalty is increased to death if
homicide or murder is committed with the use of an unlicensed
firearm. It may thus be loosely said thathomicide or murder qualifies the offense because both are circumstan
ces which increase the penalty. It does not, however, follow that the homicide or murder is absorbed in the of
fense. If these were to beso, an anomalous absurdity would result whereby a more serious crime defined and
penalized under the Revised Penal Code will be absorbed by a statutory offense, one which is merely malum p
rohibitum. Hence, the killing of a person with the use of an unlicensed firearm may give rise to separate prose
cutions for (a) the violation of Section 1 of P.D. No. 1866 and (b) the violation of either Article 248 (Murder)or
Article 249 (Homicide) of the Revised Penal Code. The accused cannot plead one to bar the other; stated
otherwise, the rule against double jeopardy cannot be invoked as the first is punished by a special law while
the second - Murder or Homicide - is punished by the Revised Penal Code. [citing People vs. Tiozon, 198 SCRA
368, 379 (1991); People vs. Doriguez, 24 SCRA 163 (1968)]. Considering, however, that the imposition of the
death penalty is prohibited by the Constitution, the proper imposable penalty would be the penalty next lower
in degree, or reclusion perpetua. (emphasis supplied)

In Deunida, in discussing the propriety of the Government's action in withdrawing an information for
murder and pursuing only the information for "Qualified Illegal Possession of Firearm," this Court categorically
declared:
At the outset, it must be stressed that, contrary to the prosecution's legal position in withdrawing the
information for murder, the offense defined in the second paragraph of Section 1 of P.D. No. 1866 does not
absorb the crime of homicide or murder under the Revised Penal Code and, therefore, does not bar the
simultaneous or subsequent prosecution of the latter crime. The 1982 decision in Lazaro vs.People, involving
the violation of P.D. No. 9, which the investigating prosecutor invokes to justify the withdrawal, is no longer
controlling in view of our decisions in People vs. Tac-an, People vs. Tiozon, andPeople vs. Caling.
In Somooc, we once more ruled:
The offense charged by the Information is clear enough from the terms of that document, although both the
Information and the decision of the trial court used the term "Illegal Possession of Firearm with Homicide," a
phrase which has sometimes been supposed to connote a "complex crime as used in the Revised Penal
Code. Such nomenclature is, however, as we have ruled in People vs. Caling, a misnomer since there is no
complex crime of illegal possession of firearm with homicide. The gravamen of the offense penalized in P.D.
No. 1866 is the fact of possession of a firearm without a license or authority for such possession. This offense
is aggravated and the imposable penalty upgraded if the unlicensed firearm is shown to have been used in the
commission of homicide or murder, offenses penalized under the Revised Penal Code. The killing of a human
being, whether characterized as homicide or murder, is patently distinct from the act of possession of an
unlicensed firearm and is separately punished under the provisions of the Revised Penal Code.
The foregoing doctrine suffered a setback when in our decision of 27 June 1995
in People vs. Barros,[43] we set aside that portion of the appealed decision convicting the appellant of the
offense of murder and affirmed that portion convicting him of illegal possession of firearm in its aggravated
form. We therein made the following statement:
[A]ppellant may not in the premises be convicted of two separate offenses [of illegal possession of firearm in
its aggravated form and of murder], but only that of illegal possession of firearm in its aggravated form, in light
of the legal principles and propositions set forth in the separate opinion of Mr. Justice Florenz D. Regalado, to
which the Members of the Division, the ponente included, subscribe.
The pertinent portions of the separate opinion of Mr. Justice Florenz D. Regalado referred to therein read
as follows:
This premise accordingly brings up the second query as to whether or not the crime should properly be the
aggravated illegal possession of an unlicensed firearm through the use of which a homicide or murder is
committed. It is submitted that an accused so situated should be liable only for the graver offense of
aggravated illegal possession of the firearm punished by death under the second paragraph of Section 1,
Presidential Decree No. 1866, and it is on this point that the writer dissents from the holding which would
impose a separate penalty for the homicide in addition to that for the illegal possession of the firearm used to
commit the former.
If the possession of the unlicensed firearm is the only offense imputable to the accused, the Court has
correctly held that to be the simple possession punished with reclusion temporal in its maximum period
toreclusion perpetua in the first paragraph of Section 1. Where, complementarily, the unlicensed firearm is
used to commit homicide or murder, then either of these felonies will convert the erstwhile simple illegal

possession into the graver offense of aggravated illegal possession. In other words, the homicide or murder
constitutes the essential element for integrating into existence the capital offense of the aggravated form of
illegal possession of a firearm. Legally, therefore, it would be illogical and unjustifiable to use the very same
offenses of homicide or murder as integral elements of and to create the said capital offense, and then treat
the former all over again as independent offenses to be separately punished further, with penalties
immediately following the death penalty to boot.
The situation contemplated in the second query is, from the punitive standpoint, virtually of the nature of the
so-called, special complex crimes," which should more appropriately be called composite crimes, punished in
Article 294, Article 297 and Article 335. They are neither of the same legal basis as nor subject to the rules on
complex crimes in Article 48, since they do not consist of a single act giving rise to two or more grave or less
grave felonies nor do they involve an offense being a necessary means to commit another. However, just like
the regular complex crimes and the present case of aggravated illegal possession of firearms, only a single
penalty is imposed for each of such composite crimes although composed of two or more offenses.
On the other hand, even if two felonies would otherwise have been covered by the conceptual definition of a
complex crime under Article 48, but the Code imposes a single definite penalty therefor, it cannot also be
punished as a complex crime, much less as separate offense, but with only the single penalty prescribed by
law. Thus, even where a single act results in two less grave felonies of serious physical injuries and serious
slander by deed, the offense will not be punished as a delito compuesto under Article 48 but as less serious
physical injuries with ignominy under the second paragraph of Article 265. The serious slander by deed is
integrated into and produces a graver offense, and the former is no longer separately punished.
What is, therefore, sought to be stressed by such alternative illustration, as well as the discussion on complex
and composite crimes, is that when an offense becomes a component of another, the resultant crime being
correspondingly punished as thus aggravated by the integration of the other, the former is not to be further
separately punished as the majority would want to do with the homicide involved in the case at bar.
With the foregoing answers to the second question, the third inquiry is more of a question of classification for
purposes of the other provisions of the Code. The theory in Tac-an that the principal offense is the aggravated
form of illegal possession of firearm and the killing shall merely be included in the particulars or, better still, as
an element of the principal offense, may be conceded. After all, the plurality of crimes here is actually source
from the very provisions of Presidential Decree No. 1866 which sought to "consolidate, codify and integrate"
the various laws and presidential decrees to harmonize their provision" which must be updated and revised
in order to more effectively deter violators of said laws.
This would be akin to the legislative intendment underlying the provisions of the Anti-Carnapping Act of 1972,
wherein the principal crime to be charged is still carnapping, although the penalty therefore is increased when
the owner, driver or occupant of the carnapped vehicle is killed. The same situation, with escalating punitive
provisions when attended by a killing, are found in the Anti-Piracy and Anti-Highway Robbery Law of 1974 and
the Anti-Cattle Rustling Law of 1974, wherein the principal crimes still are piracy, highway robbery and cattle
rustling. Also, in the matter of destructive arson, the principal offense when, inter alia, death results as a
consequence of the commission of any of the acts punished under said article of the Code.
In the present case, the academic value of specifying whether it is a case of illegal possession of firearm
resulting in homicide or murder, or, conversely, homicide or murder through the illegal possession and use of
an unlicensed firearm, would lie in the possible application of the provision on recidivism. Essentially, it would
be in the theoretical realm since, taken either way, the penalty for aggravated illegal possession of a firearm is
the single indivisible penalty of death, in which case the provision on recidivism would not apply. If, however,

the illegal possession is not established but either homicide or murder is proved, then the matter of recidivism
may have some significance in the sense that, for purposes thereof, the accused was convicted of a crime
against persons and he becomes a recidivist upon conviction of another crime under the same title of the
Code.
Lastly, on the matter of the offense or offenses to be considered and the penalty to be imposed when the
unlawful killing and the illegal possession are charged in separate informations, from what has been said the
appropriate course of action would be to consolidate the cases and render a joint decision thereon, imposing
a single penalty for aggravated illegal possession of firearm if such possession and the unlawful taking of life
shall have been proved, or for only the proven offense which may be either simple illegal possession, homicide
or murder per se. The same procedural rule and substantive disposition should be adopted if one information
for each offense was drawn up and these informations were individually assigned to different courts or
branches of the same court.
Indeed, the practice of charging the offense of illegal possession separately from the homicide or murder
could be susceptible of abuse since it entails undue concentration of prosecutorial powers and
discretion. Prefatorily, the fact that the killing was committed with a firearm will necessarily be known to the
police or prosecutorial agencies, the only probable problem being the determination and obtention of
evidence to show that the firearm is unlicensed.
Now, if a separate information for homicide or murder is filed without alleging therein that the same was
committed by means of an unlicensed firearm, the case would not fall under Presidential Decree No.
1866. Even if the use of a firearm is alleged therein, but without alleging the lack of a license therefor as
where that fact has not yet been verified, the mere use of a firearm by itself, even if proved in that case,
would not affect the accused either since it is not an aggravating or qualifying circumstance.
Conversely, if the information is only for illegal possession, with the prosecution intending to file thereafter
the charge for homicide or murder but the same is inexplicably delayed or is not consolidated with the
information for illegal possession, then any conviction that may result from the former would only be for
simple illegal possession. If, on the other hand, the separate and subsequent prosecution for homicide or
murder prospers, the objective of Presidential Decree No. 1866 cannot be achieved since the penalty
imposable in that second prosecution will only be for the unlawful killing and further subject to such modifying
circumstances as may be proved.
In any event, the foregoing contingencies would run counter to the proposition that the real offense
committed by the accused, and for which sole offense he should be punished, is the aggravated form of illegal
possession of a firearm. Further, it is the writer's position that the possible problems projected herein may be
minimized or obviated if both offenses involved are charged in only one information or that the trial thereof, if
separately charged, be invariably consolidated for joint decision. Conjointly, this is the course necessarily
indicated since only a single composite crime is actually involved and it is palpable error to deal therewith and
dispose thereof by segregated parts in piecemeal fashion.
If we follow Barros, the conviction of the appellant for murder in Criminal Case No. 8178 must have to be
set aside. He should only suffer the penalty for the aggravated illegalpossession of firearm in Criminal Case
No. 8179.
The Court en banc finds in this appeal an opportunity to reexamine the existing conflicting doctrines
applicable to prosecutions for murder or homicide and for aggravated illegal possession of firearm in instances
where an unlicensed firearm is used in the killing of a person. After a lengthy deliberation thereon, the

Court en banc arrived at the conclusion that the rule laid down in Tac-an, reiterated
in Tiozon, Caling, Jumamoy, Deunida, Tiongco, Fernandez, and Somooc is the better rule, for it applies the laws
concerned according to their letter and spirit, thereby steering this Court away from a dangerous course which
could have irretrievably led it to an inexcusable breach of the doctrine of separation of powers through
Judicial legislation. That rule upholds and enhances the lawmaker's intent or purpose in aggravating the crime
of illegal possession of firearm when an unlicensed firearm is used in the commission of murder or
homicide. Contrary to the view of our esteemed brother, Mr. Justice Florenz D. Regalado, in his Concurring
and Dissenting Opinion in the case under consideration, Tac-an did not enunciate an unfortunate doctrine or
a "speciously camouflaged theory" which "constitutes an affront on doctrinal concepts of penal law and assails
even the ordinary notions of common sense."
If Tac-an did in fact enunciate such an "unfortunate doctrine," which this Court has reiterated in a
convincing number of cases and for a convincing number of years, so must the same verdict be made in our
decision in People vs. De Gracia,[44] which was promulgated on 6 July 1994. In the latter case, we held that
unlawful possession of an unlicensed firearm in furtherance of rebellion may give rise to separate
prosecutions for a violation of Section 1 of P.D. No. 1866 and also for a violation of Articles 134 and 135 of the
Revised Penal Code on rebellion. A distinction between that situation and the case where an unlicensed
firearm is used in homicide or murder would have no basis at all. In De Gracia, this Court, speaking through
Mr. Justice Florenz D. Regalado, made the following authoritative pronouncements:
III. As earlier stated, it was stipulated and admitted by both parties that from November 30, 1989 up to and
until December 9, 1989, there was a rebellion. Ergo, our next inquiry is whether or not appellant's possession
of the firearms, explosives and ammunition seized and recovered from him was for the purpose and in
furtherance of rebellion.
The trial court found accused guilty of illegal possession of firearms in furtherance of rebellion pursuant to
paragraph 2 of Article 135 of the Revised Penal Code which states that "any person merely participating or
executing the command of others in a rebellion shall suffer the penalty of prision mayor in its minimum
period." The court below held that appellant De Gracia, who had been servicing the personal needs of Col.
Matillano (whose active armed opposition against the Government, particularly at the Camelot Hotel, was well
known), is guilty of the act of guarding the explosives and "molotovbombs for and in behalf of the latter. We
accept this finding of the lower court.
The above provision of the law was, however, erroneously and improperly used by the court below as a basis
in determining the degree of liability of appellant and the penalty to be imposed on
him. It mustbe made clear that appellant is charged with the qualified offense of illegal possession of firearms
in furtherance of rebellion under Presidential Decree No. 1866 which, in law, is distinct from the crime ofrebel
lion punished under Article 134 and 135 of the Revised Penal Code. There are two separate statutes penalizin
g different offenses with discrete penalties. The Revised Penal Code treats rebellion as acrime apart from mur
der, homicide, arson, or other offenses, such as illegal possession of firearms, that might conceivably be comm
itted in the course of a rebellion. Presidential Decree No. 1866 defines andpunishes, as a specific offense, the
crime of illegal possession of firearms committed in the course or as part of a rebellion.
As a matter of fact, in one case involving the constitutionality of Section 1 of Presidential Decree No. 1866, the
Court has explained that said provision of the law will not be invalidated by the mere fact thatthe same act is
penalized under two different statutes with different penalties, even if considered highly advantageous to the
prosecution and onerous to the accused. It follows that, subject to the presence ofrequisite elements in each
case, unlawful possession of an unlicensed firearm in furtherance of rebellion may give rise to separate prosec
utions for a violation of Section 1 of Presidential Decree No. 1866, andalso a violation of Articles 134 and 135 o

f the Revised Penal Code on rebellion. Double jeopardy in this case cannot be invoked because the first is an o
ffense punished by a special law while the second is afelony punished by the Revised Penal Code with variant e
lements.
We cannot justify what we did in De Gracia with a claim that the virtue of fidelity to a controlling
doctrine, i.e., of Tac-an, had compelled us to do so. Indeed, if Tac-an enunciated an "unfortunate doctrine"
which is "an affront on doctrinal concepts of penal law and assails even the ordinary notions of common
sense," then De Gracia should have blazed the trail of a new enlightenment and forthwith set aside the
"unfortunate doctrine" without any delay to camouflage a judicial faux pas or a doctrinal
quirk. De Gracia provided an excellent vehicle for an honorable departure from Tac-an because no attack on
the latter was necessary as the former merely involved other crimes to which the doctrine in Tac-an might
only be applied by analogy. De Gracia did not even intimate the need to reexamine Tac-an; on the contrary, it
adapted the latter to another category of illegal possession of firearm qualified by rebellion precisely because
the same legal principle and legislative purpose were involved, and not because De Gracia wanted to
perpetuate an "unfortunate doctrine" or to embellish "the expanding framework of our criminal law from
barnacled ideas which have not grown apace with conceptual changes over time," as the concurring and
dissenting opinion charges.
The majority now reiterates the doctrine in Tac-an and the subsequent cases not because it has become
hostage to the "inertia of time [which] has always been the obstacle to the virtues of change," as the
concurring and dissenting opinion finds it to be, but rather because it honestly believes that Tac-an laid down
the correct doctrine. If P.D. No. 1866 as applied in Tac-an is an "affront on doctrinal concepts of penal laws
and assails even the ordinary notions of common sense," the blame must not be laid at the doorsteps of this
Court, but on the lawmaker's. All that the Court did in Tac-an was to apply the law, for there was nothing in
that case that warranted an interpretation or the application of the niceties of legal hermeneutics. It did not
forget that its duty is merely to apply the law in such a way that shall not usurp legislative powers by judicial
legislation and that in the course of such application or construction it should not make or supervise
legislation, or under the guise of interpretation modify, revise, amend, distort, remodel, or rewrite the law, or
give the law a construction which is repugnant to its terms.[45]
Murder and homicide are defined and penalized by the Revised Penal Code[46] as crimes against
persons. They are mala in se because malice or dolo is a necessary ingredient therefor.[47] On the other hand,
the offense of illegal possession of firearm is defined and punished by a special penal law, [48] P.D. No. 1866. It
is a malum prohibitum[49]which the lawmaker, then President Ferdinand E. Marcos, in the exercise of his
martial law powers, so condemned not only because of its nature but also because of the larger policy
consideration of containing or reducing, if not eliminating, the upsurge of crimes vitally affecting public order
and safety due to the proliferation of illegally possessed and manufactured firearms, ammunition, and
explosives. If intent to commit the crime were required, enforcement of the decree and its policy or purpose
would be difficult to achieve. Hence, there is conceded wisdom in punishing illegal possession of firearm
without taking into account the criminal intent of the possessor. All that is needed is intent to perpetrate
the act prohibited by law, coupled, of course, by animus possidendi. However, it must be clearly understood
that this animus possidendi is without regard to any other criminal or felonious intent which an accused may
have harbored in possessing the firearm.[50]
A long discourse then on the concepts of malum in se and malum prohibilum and their distinctions is an
exercise in futility.
We disagree for lack of basis the following statements of Mr. Justice Regalado in his Concurring and
Dissenting Opinion, to wit:

The second paragraph of the aforestated Section 1 expressly and unequivocally provides for such illegal
possession and resultant killing as a single integrated offense which is punished as such. The majority not only
created two offenses by dividing a single offense into two but, worse, it resorted to the unprecedented and
invalid act of treating the original offense as a single integrated crime and then creating another offense by
using a component crime which is also an element of the former.
It would already have been a clear case of judicial legislation if the illegal possession with murder punished
with a single penalty have been divided into two separate offenses of illegal possession and murder with
distinct penalties. It is consequently a compounded infringement of legislative powers for this Court to now,
as it has done, treat that single offense as specifically described by the law and
imposereclusion perpetua therefor (since the death penalty for that offense is still proscribed), but then
proceed further by plucking out therefrom the crime of murder in order to be able to impose the death
sentence. For indeed, on this score, it is beyond cavil that in the aggravated form of illegal possession, the
consequential murder (or homicide) is an integrated element or integral component since without the
accompanying death, the crime would merely be simple illegal possession of a firearm under the first
paragraph of Section 1.
The second paragraph of Section 1 of P.D. No. 1866 does not warrant and support a conclusion that it
intended to treat "illegal possession and resultant killing" (emphasis supplied) "as a single and integrated
offense"
of
illegal
possession
with
homicide
or
murder. It
does
not
use
the
clause as a result or on the occasion of to evince an intention to create a single integrated crime. By its
unequivocal and explicit language, which we quote to be clearly understood:
If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be
imposed. (emphasis supplied)
the crime of either homicide or murder is committed NOT AS A RESULT OR ON THE OCCASION of the
violation of Section 1, but WITH THE USE of an unlicensed firearm, whose possession is penalized
therein. There is a world of difference, which is too obvious, between (a) the commission of homicide or
murder as a result or on the occasion of theviolation of Section 1, and (b) the commission of homicide or
murder with the use of an unlicensed firearm. In the first, homicide or murder is not the original purpose or
primary objective of the offender, but a secondary event or circumstance either resulting from or perpetrated
on the occasion of the commission of that originally or primarily intended. In the second, the killing, which
requires a mens rea, is the primary purpose, and to carry that out effectively the offender uses an unlicensed
firearm.
As to the question then of Mr. Justice Regalado of whether this Court should also apply the rule
enunciated here to P.D. No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974), P.D. No. 533 (Anti-Cattle
Rustling Law of 1974), and P.D. No. 534 (Defining Illegal Fishing and Prescribing Stiffer Penalties Therefor), the
answer is resoundingly in the negative. In those cases, the lawmaker clearly intended a single integrated
offense or a special complex offense because the death therein occurs as a result or on the occasion ofthe
commission of the offenses therein penalized or was not the primary purpose of the offender, unlike in the
second paragraph of Section 1 of P.D. No. 1866. Thus, (a) Section 3 of P.D. No. 532 provides:
SEC. 3. Penalties. -- Any person who commits piracy or highway robbery/brigandage as herein defined, shall,
upon conviction by competent court be punished by:
a. Piracy. - The penalty of reclusion temporal in its medium and maximum periods shall be imposed. If
physical injuries or other crimes are committed as a result or on the occasion thereof, the penalty

ofreclusion perpetua shall be imposed. If

rape, murder or homicide is committed as a result or on the occasion of piracy, or when the offenders
abandoned the victims without means of saving themselves, or when the seizure is accomplished by firing
upon or boarding a vessel, the mandatory penalty of death shall be imposed.
b. Highway Robbery/Brigandage.-- The penalty of reclusion temporal in its minimum period shall be
imposed. If physical injuries or other crimes are committed during or on the occasion of the commission of
robbery or brigandage, the penalty of reclusion temporal in its medium and maximum periods shall be
imposed. If kidnapping for ransom or extortion, or murder or homicide, or
rape is committed as aresult or on the occasion thereof, the penalty of death shall be imposed. (emphasis
supplied)
(b) Section 8 of P.D. No. 533 reads in part as follows:
SEC. 8. Penal provisions. -- Any person convicted of cattle rustling as herein defined shall, irrespective of the
value of the large cattle involved, be punished by prision mayor in its maximum period toreclusion temporal in
its medium period if the offense is committed without violence against or intimidation of persons or force
upon things. If the offense is committed with violence against or intimidation of persons or force upon things,
the penalty of reclusion temporal in its maximum period to reclusion perpetua shall be
imposed. If a person is seriously injured
or killed as a result or on the occasion of thecommission of cattle rustling, the penalty of reclusion perpetua to
death shall be imposed. (emphasis supplied)
and (c) Section 3 of P.D. No. 534 reads as follows:
SECTION. 3. Penalties.-- Violations of this Decree and the rules and regulations mentioned in paragraph (f) of
Section 1 hereof shall be punished as follows:
a. by imprisonment from 10 to 12 years, if explosives are used: Provided, that if the explosion results (1) in
physical injury to person, the penalty shall be imprisonment from 12 to 20 years, or
(2) in the lossof human life, then the penalty shall be imprisonment from 20 years to life, or death;
b. by imprisonment from 8 to 10 years, if obnoxious or poisonous substances are
used: Provided, that if the use of such substances results (1) in physical injury to any person, the penalty shall
be imprisonment from 10 to 12 years, or
(2) in the loss of human life, then the penalty shall be imprisonment from 20 years to life, or death; x x x
(emphasis supplied)
The unequivocal intent of the second paragraph of Section 1 of P.D. No. 1866 is to respect and preserve
homicide or murder as a distinct offense penalized under the Revised Penal Code and to increase the penalty
for illegal possession of firearm where such a firearm is used in killing a person. Its clear language yields no
intention of the lawmaker to repeal or modify, pro tanto, Articles 248 and 249 of the Revised Penal Code, in
such a way that if an unlicensed firearm is used in the commission of homicide or murder, either of these
crimes, as the case may be, would only serve to aggravate the offense of illegal possession of firearm and
would not anymore be separately punished. Indeed, the words of the subject provision are palpably clear to
exclude any suggestion that either of the crimes of homicide and murder, as crimes mala in se under the
Revised Penal Code, is obliterated as such and reduced as a mere aggravating circumstance in illegal
possession of firearm whenever the unlicensed firearm is used in killing a person. The only purpose of the
provision is to increase the penalty prescribed in the first paragraph of Section 1 -- reclusion temporal in its

maximum period to reclusion perpetua -- to death, seemingly because of the accused's manifest arrogant
defiance and contempt of the law in using an unlicensed weapon to kill another, but never, at the same time,
to absolve the accused from any criminal liability for the death of the victim.
Neither is the second paragraph of Section 1 meant to punish homicide or murder with death if either
crime is committed with the use of an unlicensed firearm, i.e., to consider such use merely as
a qualifying circumstance and not as an offense. That could not have been the intention of the lawmaker
because the term "penalty" in the subject provision is obviously meant to be the penalty for illegal possession
of firearm and not the penalty for homicide or murder. We explicitly stated in Tac-an:
There is no law which renders the use of an unlicensed firearm as an aggravating circumstance in homicide
or murder. Under an information charging homicide or murder, the fact that the death weapon was an
unlicensed firearm cannot be used to increase the penalty for the second offense of homicide or murder to
death .... The essential point is that the unlicensed character or condition of the instrument used in
destroying human life or committing some other crime, is not included in the inventory of aggravating
circumstances set out in Article 14 of the Revised Penal Code.
A law may, of course, be enacted making the use of an unlicensed firearm as a qualifying circumstance. This
would not be without precedent. By analogy, we can cite Section 17 of B.P. Blg. 179, which amended the
Dangerous Drugs Act of 1972 (R.A. No. 6425). The said section provides that when an offender commits a
crime under a state of addiction, such a state shall be considered as a qualifying aggravating circumstance in
the definition of the crime and the application of the penalty under the Revised Penal Code.
In short, there is nothing in P.D. No. 1866 that manifests, even vaguely, a legislative intent to
decriminalize homicide or murder if either crime is committed with the use of an unlicensed firearm, or to
convert the offense of illegal possession of firearm as a qualifying circumstance if the firearm so illegally
possessed is used in the commission of homicide or murder. To charge the lawmaker with that intent is to
impute an absurdity that would defeat the clear intent to preserve the law on homicide and murder and
impose a higher penalty for illegal possession of firearm if such firearm is used in the commission of homicide
or murder.
Evidently, the majority did not, as charged in the concurring and dissenting opinion, create two offenses
by dividing a single offense into two. Neither did it resort to the "unprecedented and invalid act of treating
the original offense as a single integrated crime and then creating another offense by using a component
crime which is also an element of the former." The majority has always maintained that
the killing of a person with the use of an illegally possessed firearm gives rise to two separate offenses of (a)
homicide or murder under the Revised Penal Code, and (b) illegal possession of firearm in its aggravated form.
What then would be a clear case of judicial legislation is an interpretation of the second paragraph of
Section 1 of P.D. No. 1866 that would make it define and punish a single integrated offense and give to the
words WITH THE USE OF a similar meaning as the words AS A RESULT OR ON THE OCCASION OF, a meaning
which is neither born out by the letter of the law nor supported by its intent. Worth noting is the rule in
statutory construction that if a statute is clear, plain, and free from ambiguity, it must be given its literal
meaning and applied without attempted interpretation,[51] leaving the court no room for any extended
ratiocination or rationalization of the law.[52]
Peregrinations into the field of penology such as on the concept of a single integrated crime or composite
crimes, or into the philosophical domain of integration of the essential elements of one crime to that of
another would then be unnecessary in light of the clear language and indubitable purpose and intent of the
second paragraph of Section 1 of P.D. No. 1866. The realm of penology, the determination of what should be
criminalized, the definition of crimes, and the prescription of penalties are the exclusive prerogatives of the

legislature. As its wisdom may dictate, the legislature may even create from a single act or transaction various
offenses for different purposes subject only to the limitations set forth by the Constitution. This Court cannot
dictate upon the legislature to respect the orthodox view concerning a single integrated crime or composite
crimes.
The only apparent obstacle to the imposition of cumulative penalties for various acts is the rule on double
jeopardy. This brings us to the proposition in the dissenting opinion of Mr. Justice Regalado that the majority
view offends the constitutional bar against double jeopardy under the "same-evidence" test enunciated
in People vs. Diaz.[53] He then concludes:
In the cases now before us, it is difficult to assume that the evidence for the murder in the first charge of
aggravated illegal possession of firearm with murder would be different from the evidence to be adduced in
the subsequent charge for murder alone. In the second charge, the illegal possession is not in issue, except
peripherally and inconsequentially since it is not an element or modifying circumstance in the second charge,
hence the evidence therefor is immaterial. But, in both prosecutions, the evidence on murder is essential, in
the first charge because without it the crime is only simple illegal possession, and, in the second charge,
because murder is the very subject of the prosecution. Assuming that all the other requirements under
Section 7, Rule 117 are present, can it be doubted that double jeopardy is necessarily present and can be
validly raised to bar the second prosecution for murder?
In fact, we can extrapolate the constitutional and reglementary objection to the cases of the other composite
crimes for which a single penalty is imposed, such as the complex, compound and so-called special complex
crimes. Verily, I cannot conceive of how a person convicted of estafa through falsification under Article 48 can
be validly prosecuted anew for the same offense or either estafa or falsification; or how the accused convicted
of robbery with homicide under Article 294 can be legally charged again with either of the same component
crimes of robbery or homicide; or how the convict who was found guilty of rape with homicide under Article
335 can be duly haled before the court again to face charges of either the same rape or homicide. Why, then,
do we now sanction a second prosecution for murder in the cases at bar since the very same offense was an
indispensable component for the other composite offense of illegal possession of firearm with murder? Why
would the objection of non bis in idim as a bar to a second jeopardy lie in the preceding examples and not
apply to the cases now before us?
We are unable to agree to the proposition. For one, the issue of double jeopardy is not raised in this
case. For another, the so-called "same-evidence" test is not a conclusive, much less exclusive, test in double
jeopardy cases of the first category under the Double Jeopardy Clause which is covered by Section 21, Article
III of the Constitution and which reads as follows:
No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and
an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same
act.
Note that the first category speaks of the same offense. The second refers to the same act. This was explicitly
distinguished in Yap vs. Lutero,[54] from where People vs. Relova[55]quotes the following:
Thirdly, our Bill of Rights deals with two (2) kinds of double jeopardy. The first sentence of clause 20, Section
1, Article III of the Constitution, ordains that "no person shall be twice put in jeopardy of punishment for the
same offense." (italics in the original) The second sentence of said clause provides that "if an act is punishable
by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution
for the same act." Thus, the first sentence prohibits double jeopardy of punishment for the same offense

whereas, the second contemplates double jeopardy of punishment for the same act. Under the first sentence,
one may be twice put in jeopardy of punishment of the same act, provided that he is charged with different
offenses, or the offense charged in one case is not included in, or does not include, the crime charged in the
other case. The second sentence applies, even if the offenses charged are not the same, owing to the fact that
one constitutes a violation of an ordinance and the other a violation of a statute. If the two charges are based
on one and the same act, conviction or acquittal under either the law or the ordinance shall bar a prosecution
under the other. Incidentally, such conviction or acquittal is not indispensable to sustain the plea of double
jeopardy of punishment for the same offense. So long as jeopardy has been attached under one of the
informations charging said offense, the defense may be availed of in the other case involving the same
offense, even if there has been neither conviction nor acquittal in either case.
Elsewise stated, where the offenses charged are penalized either by different sections of the same statute or
by different statutes, the important inquiry relates to the identity ofoffenses charged. The constitutional
protection against double jeopardy is available only where an identity is shown to exist between the earlier
and the subsequent offenses charged.[56] The question of identity or lack of identity of offenses is addressed
by examining the essential elements of each of the two offenses charged, as such elements are set out in the
respective legislative definitions of the offenses involved.[57]
It may be noted that to determine the same offense under the Double Jeopardy Clause of the Fifth
Amendment of the Constitution of the United States of America which reads:
[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .
the rule applicable is the following: "where the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there are two offenses or only one, is
whether each provision requires proof of an additional fact which the other does not." [58]
The Double Jeopardy Clause of the Constitution of the United States of America was brought to the
Philippines through the Philippine Bill of 1 July 1902, whose Section 5 provided, inter alia:
[N]o person for the same offense shall be twice put in jeopardy of punishment . . . .
This provision was carried over in identical words in Section 3 of the Jones Law of 29 August 1916. [59] Then
under the 1935 Constitution, the Jones Law provision was recast with the addition of a provision referring
to the same act. Thus, paragraph 20, Section 1, Article III thereof provided as follows:
No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law
and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the
same act.
This was adopted verbatim in Section 22, Article IV of the 1973 Constitution and in Section 21, Article III of the
present Constitution.
This additional-element test in Lutero and Relova and in Blockburger, Gore, and Missouri would safely
bring the second paragraph of Section 1 of P.D. No. 1866 out of the proscribed double jeopardy principle. For,
undeniably, the elements of illegal possession of firearm in its aggravated form are different from the
elements of homicide or murder, let alone the fact that these crimes are defined and penalized under
different laws and the former is malum prohibitum, while both the latter are mala in se. Hence, the fear that
the majority's construction of the subject provision would violate the constitutional bar against double
jeopardy is unfounded.

The penalty which the trial court imposed in Criminal Case No. 8179 for illegal possession of firearm in its
aggravated form must, however, be modified. The penalty prescribed by P.D. No. 1866 is death. Since Section
19(1), Article III of the Constitution prohibits the imposition of the death penalty, the penalty next lower in
degree, reclusion perpetual must be imposed.
WHEREFORE, the instant appeal is DISMISSED, and the challenged decision of 30 September 1993 of
Branch 1 of the Regional Trial Court of Bohol finding accused-appellant DANIEL QUIJADA y CIRCULADO guilty
beyond reasonable doubt of the crime of murder in Criminal Case No. 8178 and of illegal possession of firearm
in its aggravated form in Criminal Case No. 8179 is AFFIRMED. The penalty imposed in the first case, as
amended by the Order of 29 October 1993, is sustained; however, the penalty imposed in the second case is
changed to Reclusion Perpetua from the indeterminate penalty ranging from Seventeen (17) years, Four (4)
months, and One (1) day, as minimum, to Twenty (20) years and One (1) day, as maximum.
Costs de oficio.
SO ORDERED.
Padilla, Bellosillo, Melo, Francisco, Panganiban, and Torres, Jr., JJ., concur.
Narvasa, C.J., Romero, Puno, Vitug, Kapunan, Mendoza, JJ., joined J. Regalado in his concurring and
dissenting opinion.
Regalado, J., see concurring and dissenting opinion.
Hermosisima, J., see concurring opinion.

[1]

Original Records (OR), Criminal Case No. 8178, 71-80; Rollo, 7-15. Per Judge Antonio H. Bautista.

[2]

182 SCRA 601 [1990].

[3]

198 SCRA 368 [1991].

[4]

208 SCRA 821 [1992.]

[5]

221 SCRA 333 [1993].

[6]

231 SCRA 520 [1994].

[7]

236 SCRA 458 [1994].

[8]

239 SCRA 174 [1994].

[9]

244 SCRA 731 [1995].

[10]

245 SCRA 312 [1995].

[11]

OR, Criminal Case No. 8178, 31-32; Rollo, 3.

[12]

Id., Criminal Case No. 8179, 14; Id., 4.

[13]

Rollo, 81-85.

[14]

Exhibit A (Medico-Legal Certificate issued by Dr. Gregg Julius Sodusta), Folder of Exhibits, 1.

[15]

Exhibit A, Folder of Exhibits, 1 (see note 14).

[16]

Exhibit C-1, Id., 4.

[17]

Exhibit C, Id., 3.

[18]

OR, Criminal Case No. 8178, 76; Rollo, 11.

[19]

OR, Criminal Case No. 8178, 79-80; Rollo, 14-15.

[20]

OR, Criminal Case No. 8178, 81.

[21]

Id., 82.

[22]

Rollo, 42-43.

[23]

TSN, 8 June 1993, 29.

[24]

TSN, 8 June 1993, 10-12.

[25]

Id., 31.

[26]

People vs. De Guzman, 188 SCRA 407 [1990]; People vs. De Leon, 245 SCRA 538 [1995]; People vs.
Delovino, 247 SCRA 637 [1995].
[27]

People vs. Delovino, supra, note 26, citing Creamer vs. Bivert, 214 MO 473, 474 [1908], cited in M.
FRANCES MCNAMARA, 200 Famous Legal Quotations [1967], 548.
[28]

People vs. Fernandez, 209 SCRA 1 [1992]; People vs. Pablo, 213 SCRA 1 [1992]; People vs. Casinillo, 213
SCRA 777 [1992]; People vs. Gomez, 235 SCRA 444 [1994].
[29]

Section 3 (m), Rule 13, Rules of Court.

[30]

People vs. Taneo, 218 SCRA 494 [1993]; People vs. Kyamko, 222 SCRA 183 [1993]; People vs. Enciso, 223
SCRA 675 [1993]; People vs. Pamor, 237 SCRA 462 [1994].
[31]

People vs. Penillos, 205 SCRA 546 [1992]; People vs. Florida 214 SCRA 227 [1992]; People vs. Castor, 216
SCRA 410 [1992]
[32]

TSN, 30 July 1993, 3-4.

[33]

Article 13 (7), Revised Penal Code.

[34]

People vs. Comia, 236 SCRA 185 [1994]; People vs. Enciso, supra, note 30.

[35]

Supra note 2.

[36]

Supra note 3.

[37]

Supra note 4.

[38]

Supra note 5.

[39]

Supra note 6.

[40]

Supra note 7.

[41]

Supra note 8.

[42]

Supra note 9.

[43]

Supra note 10.

[44]

233 SCRA 716 [1994].

[45]

50 Am. Jur., Statutes, 229, 214-215. See RUPERTO G. MARTIN, Statutory Construction [1979], 2.

[46]

Articles 248 and 249, respectively, Revised Penal Code.

[47]

Article 3, Id.

[48]

Any penal law punishing acts which are not treated and penalized by the Revised Penal Code is a special
penal
law
(U.S. vs. Serapio,
23
Phil.
584
[1912];
GUILLERMO
B.
GUEVARRA, Penal Sciences andPhilippine Criminal Law [1974], 24).
[49]

Veroy vs. Layague, 210

Gracia, supra, note 44.

SCRA

97

[1992];

[50]

People vs. De Gracia, supra note 44.

[51]

Victoria vs. COMELEC, 229 SCRA 269 [1994].

[52]

Libanan vs. Sandiganbayan, 233 SCRA 163 [1994].

[53]

94 Phil. 714 [1954].

[54]

105 Phil. 1307 [1959].

[55]

148 SCRA 292, 303-304 [1987].

[56]

People vs. Relova, supra note 55.

[57]

Id., at 306.

People vs.

Jumamoy, supra, note 5;

People vs. De

[58]

Blockburger vs. United States, 284 U.S. 299-305 [1932]; Gore vs. U.S., 357 U.S. 386, 2 L ed 2d 1405, 78 S Ct
1280 [1958]; Missouri vs. Hunter, 459 U.S., 359, 74 L Ed 2d 535, 103 S Ct 673 [1983].
[59]

People vs. Relova, supra, note 55, at 301. See also, VICENTE M. MENDOZA, From Mckinley's Instructions to
the New Constitution: Documents on the Philippine Constitutional System [1978], 80, 118.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-42288

February 16, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
CORNELIO BAYONA, defendant-appellant.
Gervasio Diaz for appellant.
Office of the Solicitor-General Hilado for appellee.
VICKERS, J.:
This is an appeal from a decision of Judge Braulio Bejasa in the Court of First Instance of Capiz, finding the
defendant guilty of a violation of section 416 of the Election Law and sentencing him to suffer imprisonment
for thirty days and to pay a fine of P50, with subsidiary imprisonment in case of insolvency, and to pay the
costs.
The facts as found by the trial judge are as follows:
A eso de las once de la maana del dia 5 de junio de 1934, mientras se celebrahan las elecciones
generales en el precinto electoral numero 4, situado en el Barrio de Aranguel del Municipio de Pilar,
Provincia de Capiz, el aqui acusado fue sorprendido por Jose E. Desiderio, que era entonces el
representante del Departamento del Interior para inspecionar las elecciones generales en la Provincia
de Capiz, y por el comandante de la Constabularia F.B. Agdamag que iba en aquella ocasion con el
citado Jose E. Desiderio, portando en su cinto el revolver Colt de calibre 32, No. 195382, Exhibit A,
dentro del cerco que rodeaba el edificio destinado para el citado colegio electoral numero 4 y a una
distancia de 22 metros del referido colegio electoral. Inmediatament Jose E. Desiderio se incauto del
revolver en cuestion.
La defensa, por medio del testimonio de Jose D. Benliro y de Dioscoro Buenvenida, trato de establecer
que el aqui acusado paro en la calle que daba frente al colegio electoral numero 4 a invitacion de dicho
Jose D. Benliro y con el objeto de suplicarle al mencionado acusado para llevar a su casa a los electores
del citado Jose D. Benliro que ya habian terminado de votar, y que cuando llegaron Jose E. Desidierio y
el comadante F.B. Agdamag, el aqui acusado estaba en la calle. Desde el colegio electoral hasta el sitio
en que, segun dichos testigos, estaba el acusado cuando se le quito el revolver Exhibit a, hay una
distancia de 27 metros.
Appellant's attorney makes the following assignments of error:
1. El Juzgado a quo erro al declarar que el apelante fue sorprendido con su revolver dentro del cerco de
la casa escuela del Barrio de Aranguel, Municipio de Pilar, que fue habilitado como colegio electoral.

2. El Juzgado a quo erro al declarar al apelante culpable de la infraccion de la Ley Electoral querrellada
y, por consiguiente, al condenarle a prision y multa.
As to the question of fact raised by the first assignment of error, it is sufficient to say that the record shows
that both Jose E. Desiderio, a representative of the Department of the Interior, and Major Agdamag of the
Philippine Constabulary, who had been designated to supervise the elections in the Province of Capiz, testified
positively that the defendant was within the fence surrounding the polling place when Desiderio took
possession of the revolver the defendant was carrying. This also disposes of that part of the argument under
the second assignment of error based on the theory that the defendant was in a public road, where he had a
right to be, when he was arrested. The latter part of the argument under the second assignment of error is
that if it be conceded that the defendant went inside of the fence, he is nevertheless not guilty of a violation
of the Election Law, because he was called by a friend and merely approached him to find out what he wanted
and had no interest in the election; that there were many people in the public road in front of the polling place,
and the defendant could not leave his revolver in his automobile, which he himself was driving, without
running the risk of losing it and thereby incurring in a violation of the law.
As to the contention that the defendant could not leave his revolver in his automobile without the risk of
losing it because he was alone, it is sufficient to say that under the circumstances it was not necessary for the
defendant to leave his automobile merely because somebody standing near the polling place had called him,
nor does the record show that it was necessary for the defendant to carry arms on that occasion.
The Solicitor-General argues that since the Government does not especially construct buildings for electoral
precincts but merely utilizes whatever building there may be available, and all election precincts are within
fifty meters from some road, a literal application of the law would be absurd, because members of the police
force or Constabulary in pursuit of a criminal would be included in that prohibition and could not use the road
in question if they were carrying firearms; that people living in the vicinity of electoral precincts would be
prohibited from cleaning or handling their firearms within their own residences on registration and election
days;
That the object of the Legislature was merely to prohibit the display of firearms with intention to influence in
any way the free and voluntary exercise of suffrage;
That if the real object of the Legislature was to insure the free exercise of suffrage, the prohibition in question
should only be applied when the facts reveal that the carrying of the firearms was intended for the purpose of
using them directly or indirectly to influence the free choice of the electors (citing the decision of this court in
the case of People vs. Urdeleon [G.R. No. 31536, promulgated November 20, 1929, not reported], where a
policeman, who had been sent to a polling place to preserve order on the request of the chairman of the
board of election inspectors, was acquitted); that in the case at bar there is no evidence that the defendant
went to the election precinct either to vote or to work for the candidacy of anyone, but on the other hand the
evidence shows that the defendant had no intention to go to the electoral precinct; that he was merely passing
along the road in front of the building where the election was being held when a friend of his called him; that
while in the strict, narrow interpretation of the law the defendant is guilty, it would be inhuman and
unreasonable to convict him.
We cannot accept the reasons advanced by the Solicitor-General for the acquittal of the defendant. The law
which the defendant violated is a statutory provision, and the intent with which he violated it is immaterial. It
may be conceded that the defendant did not intend to intimidate any elector or to violate the law in any other
way, but when he got out of his automobile and carried his revolver inside of the fence surrounding the polling
place, he committed the act complained of, and he committed it willfully. The act prohibited by the Election

Law was complete. The intention to intimidate the voters or to interfere otherwise with the election is not
made an essential element of the offense. Unless such an offender actually makes use of his revolver, it would
be extremely difficult, if not impossible, to prove that he intended to intimidate the voters.
The rule is that in acts mala in se there must be a criminal intent, but in those mala prohibita it is sufficient if
the prohibited act was intentionally done. "Care must be exercised in distinguishing the difference between the
intent to commit the crime and the intent to perpetrate the act. ..." (U.S. vs. Go Chico, 14 Phil., 128.)
While it is true that, as a rule and on principles of abstract justice, men are not and should not be held
criminally responsible for acts committed by them without guilty knowledge and criminal or at least
evil intent (Bishop's New Crim. Law, vol. I, sec. 286), the courts have always recognized the power of
the legislature, on grounds of public policy and compelled by necessity, "the great master of things", to
forbid in a limited class of cases the doing of certain acts, and to make their commission criminal
without regard to the intent of the doer. (U.S. vs. Go Chico, 14 Phil., 128; U.S. vs. Ah Chong, 15 Phil.,
488.) In such cases no judicial authority has the power to require, in the enforcement of the law, such
knowledge or motive to be shown. (U.S. vs. Siy Cong Bieng and Co Kong, 30 Phil., 577.)
The cases suggested by the Solicitor-General do not seem to us to present any difficulty in the enforcement of
the law. If a man with a revolver merely passes along a public road on election day, within fifty meters of a
polling place, he does not violate the provision of law in question, because he had no intent to perpetrate the
act prohibited, and the same thing would be true of a peace officer in pursuing a criminal; nor would the
prohibition extend to persons living within fifty meters of a polling place, who merely clean or handle their
firearms within their own residences on election day, as they would not be carrying firearms within the
contemplation of the law; and as to the decision in the case of People vs. Urdeleon, supra, we have recently
held in the case of People vs. Ayre, and Degracia (p. 169, ante), that a policeman who goes to a polling place
on the request of the board of election inspectors for the purpose of maintaining order is authorized by law to
carry his arms.
If we were to adopt the specious reasoning that the appellant should be acquitted because it was not proved
that he tried to influence or intended to influence the mind of any voter, anybody could sell intoxicating liquor
or hold a cockfight or a horse race on election day with impunity.
As to the severity of the minimum penalty provided by law for a violation of the provision in question, that is a
matter for the Chief Executive or the Legislature.
For the foregoing reasons, the decision appealed from is affirmed, with the costs against the appellant.
Avancea, C.J., Street, Abad Santos, and Hull, JJ., concur.

EN BANC

[G.R. No. 134362. February 27, 2002]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EMELITO SITCHON y TAYAG, accused-appellant.
DECISION
KAPUNAN, J.:
For beating to death the two-year old son of his common-law wife, accused-appellant Emelito
Sitchon y Tayag was convicted of murder and sentenced to death by the Regional Trial Court of Manila. His
case is now before this Court on automatic review.
Appellant was charged in an information stating:
That on or about June 12, 1996, in the City of Manila, Philippines, the said accused did then and there
willfully, unlawfully and feloniously, with intent to kill and with treachery and evident premeditation, attack,
assault and use personal violence upon one MARK ANTHONY FERNANDEZ y TABORA a minor, 2 years old, by
then and there mauling and clubbing him on the different parts of his body with the use of a steel hammer
and a wooden stick, approximately 18 inches long, thereby inflicting upon the latter mortal wounds which
were the direct and immediate cause of his death thereafter.
CONTRARY TO LAW.[1]
Appellant pleaded not guilty to the above charge.[2] However, before testifying in his own defense
on June 4, 1998, appellant admitted that he killed the victim and changed his plea to guilty.[3]
Five witnesses testified for the prosecution, namely, Lilia Garcia, a neighbor; the victim's eight-year old
brother Roberto; the investigating officer, PO3 Paul Dennis Javier; Dr. Manuel Lagonera, medico-legal officer
of the National Bureau of Investigation (NBI); and Felicisima Francisco, a forensic chemist of the same agency.
Appellant lived in the second floor of a three-square meter house located at 2001 Batangas Street,
Tondo, Manila. His neighbor of two months, Lilia Garcia, resided in the first floor of the same house.
At about 10:00 in the morning of June 12, 1996, Lilia was in front of the house attending to her children
when she heard the sound of a boy crying. Curious, Lilia went up the stairway, her children in tow. The open
door of the upper floor allowed Lilia to witness appellant beating two-year old Mark Anthony Fernandez.
From a distance of less than three arms length, Lilia saw appellant hit various parts of the boys body with a
piece of wood, about 14 inches in length and 2 inches in diameter. Appellant also banged the head of the
boy against the wooden wall.
The beating went on for about one hour. Lilia then saw appellant carry the boy down the house to bring
him to the hospital. The two-year old was already black and no longer moving.[4]
Eight-year old Roberto Fernandez is the elder brother of the victim, also known as Macky. According to
Roberto, Macky had scattered his feces all over the house. Appellant, whom Roberto called Kuya Chito, thus
beat Macky with a belt, a hammer and a 2x2 piece of wood. Roberto could not do anything to help his

brother because he was afraid KuyaChito might also beat him up. When Kuya Chito brought Macky to the
hospital, his little brother, who could barely talk, was not crying anymore. [5]
Roberto identified the two pieces of wood[6] that appellant allegedly used in beating the victim. He also
identified the T-shirt[7] that Macky wore when he died.
A certain Alice Valerio from the Galang Medical Hospital informed PO3 Paul Dennis Javier that a boy had
been admitted there. When PO3 Javier went to the hospital, he found the boy already dead. He observed
that the child had wounds on the left middle finger, the right index finger and both feet. The child also had
lacerations in the upper lip and contusions all over his head and body.
PO3 Javier proceeded to appellants house at No. 2001, Batangas Ext., Tondo, Manila. Human feces and
fresh blood splattered on the floor. PO3 Javier recovered from the house the broken wooden sticks, the steel
hammer,[8] which were allegedly used to beat up the boy, as well as a bloodstained white T-shirt.
PO3 Javier then went to the house of appellants sister in Del Fierro St., Tondo, who informed him of
matters relative to appellants identification. Thereafter, the police conducted a search operation
in Cavite where appellants mother lived but they did not find him there. Later that afternoon, PO3 Javier
learned that appellant had surrendered to Station 3 of their district.
The following day, a staff member of the television program Magandang Gabi Bayan turned over to PO3
Javier a brown belt which appellant allegedly also used in beating the victim. Roberto Fernandez, the victims
brother, had given the belt to the staff member.[9]
Dr. Manuel Lagonera, medico-legal officer of the NBI, conducted the postmortem examination of the
victims body on June 12, 1996 at 4:40 p.m. He found that the boy had suffered many injuries, including three
wounds at the head and the anterior chest, which could have been inflicted with the use of blunt objects such
as a piece of wood or a fist. The child could have been dead three to four hours, or not more than eight hours,
prior to the postmortem examination. Dr. Lagonera concluded that the victim died of bilateral pneumonia
secondary to multiple blunt traversal injuries or complication of the lungs due to said injuries.[10] The autopsy
report of Dr. Lagonera shows that Mark Anthony Fernandez sustained the following injuries:
EXTERNAL FINDINGS:
1. Multiple old scars, forehead.
2. Healing lacerated wound, left forehead.
3. Healed lacerated wound, above the left eyebrow, measuring 1.2x0.2 cm.
4. Healed linear abrasions, left cheek.
5. Lacerated wound, extending up to the mucous membrane of the upper lip, measuring 2 x0.3 cm.
6. Contussion (sic), left temporo-parietal region, measuring 6x5 cms.
7. Healing lacerated wound, left zygomatic region, measuring 0.5x0.3 cm.
8. Contussion (sic), left jaw, measuring 1.5x1 cm.
9. Contussion (sic), right anterior thorax, measuring 17x12 cms.
10.

Contussion (sic), right anterior forearm.

11.

Lacerated wound, tip of the forefinger, right.

12.

Old scar, upper 3rd , right anterior thigh.

13.

Contussion (sic), right lower leg, above and below the knee measuring 9x5 cms.

14.

Contussion (sic), left lower leg, above and below the knee, measuring 13x6 cms.

15.

Hematoma, big toe, under the nail bed, right.

16.

Contusso-abrasion, dorsum of the left foot, measuring 6x2 cms.

17.

Contussion (sic), left posterior thorax, measuring 17x6 cms.

18.
Contussion (sic), right postero-lateral thorax, extending up to the right lumbar region,
measuring 13x6 cms.
19.

Contussion (sic), right posterior forearm, measuring 24x8 cms.

20.

Contussion (sic), left posterior forearm, measuring 22x7 cms.

21.

Healing abrasion, right buttocks, measuring 2x0.5 cm.

22.

Plucked finger nail, left middle finger, with hematoma of the nail bed.

23.

Posterior hand, both swollen.

INTERNAL FINDINGS:

1. Presence of left sub-aponeurotic hematoma, temporo-parietal region and over the mid-occipital
region.
2. Hematoma over the sternum and pectoralis muscles.
3. Both lungs showed patcy and confluent consolidations.
4. Small amount of rice porridge was recovered from the stomach.[11]
Felicisima M. Francisco, NBI forensic chemist, conducted an examination to determine the presence and
grouping of human blood found on the steel hammer, the wooden sticks, and the T-shirt that were sent to
his office by P/Sr. Inspector Pedro Ramos Angulo, Jr. of the Western Police District in Manila.[12] She prepared
Report No. B-96-941 stating that Specimen No. 1 or the steel hammer, was positive for human blood but
insufficient for blood group. Specimen Nos. 2 (the broken wooden sticks) and 3 (the white T-shirt) were also
positive for human blood showing reactions of Group A.[13]
Only appellant, 40, a sidewalk vendor, testified for the defense. As stated earlier, appellant admitted
killing the two-year old victim, the son of his live-in partner. He and the boys mother had lived together for
two years before the incident, starting when the boy was about a year old. He claimed he enjoyed a
harmonious relationship with his partner and that he killed the boy only because he was under the influence
of shabu, marijuana and Valium 10 at that time. Appellant professed that he began using drugs in 1974 and
that he had also taken drugs two weeks before the incident.
On June 12, 1996, appellant came upon Macky playing with his feces, scattering them all over the pillow,
the bed sheets and the curtains. Appellant scolded the boy, Putang-ina ka Macky! Bakit mo ikinalat ng
ganyan ang tae mo? Halika, dadalhin kita sa baba para hugasan! Appellant got hold of Macky but the boy
struggled to free himself from appellants grasp. Appellant, still reeling from the Valium 10 he had just taken,
became so angry that he picked up a broom with a wooden handle, and hit the boy. Appellant did not realize
that he had hit Macky hard until he saw the boy sprawled on the floor, breathing with difficulty. He dressed
Macky and brought him to the Galang Medical Center at the corner of Abad Santos Avenue and Tayabas
Street, Manila. He prayed to God that nothing serious would happen to the boy.

A lady doctor immediately attended to Macky. Appellant pleaded to the lady doctor to do all she can to
save the child; otherwise, he would be in serious trouble. After examining the child, the doctor told appellant
that she could not do anything more Macky was dead. The same day, appellant surrendered to the
police. He was brought to the Homicide Section at 3:00 p.m.
Explaining his change of plea, appellant clarified that the killing of the boy was "accidental." He reiterated
that he was under the influence of drugs, which he had taken one after the other. He was a drug dependent
and, in fact, had been confined at the Tagaytay Rehabilitation Center. He said he was conscious when the
incident happened but he simply did not realize that he had hit the child hard with the brooms wooden
handle. He denied having hit the boy with a hammer or having banged his head against the wall. He hoped
the trial court would be lenient with him because of his voluntary surrender. He prayed that the court would
not impose upon him the death penalty.[14]
Nevertheless, on July 3, 1998, the trial court promulgated its decision, the dispositive portion of which
reads:
WHEREFORE, this Court finds the accused, Emelito Sitchon y Tayag, guilty beyond reasonable doubt of the
crime of murder and is sentenced to suffer the death penalty and to pay the costs. The accused is further
ordered to pay the mother of the victim Christina Tabora, moral and nominal damages in the respective sums
of P100,000.00 and P50,000.00, plus death compensation in the sum of P50,000.00, with interest thereon at
the legal rate from this date until fully paid.
SO ORDERED.[15]
The Court entertains little doubt that appellant is guilty of the killing of Mark Anthony
Fernandez. Appellants guilt was adequately established by the testimonies of Lilia Garcia and Roberto
Fernandez, who both saw appellant beat Macky. These testimonies were further corroborated by those of
PO3 Paul Dennis Javier, Dr. Manuel Lagonera and Felicisima Francisco, as well as the various pieces of object
evidence. Indeed, appellant in open court admitted beating the poor child, which beating resulted in the
latters death.
That appellant purportedly did not intend to kill the toddler would not exculpate him from liability. Article
4(1) of the Revised Penal Code provides that criminal liability shall be incurred by any person committing a
felony (delito) although the wrongful act done be different from that which he intended. The rationale of the
rule is found in the doctrine that el que es causa de la causa es causa del mal causado (he who is the cause of
the cause is the cause of the evil caused).[16]
Thus, where the accused violently kicked the sleeping victim in vital parts of the latters body, the
accused is liable for the supervening death as a consequence of the injuries.[17]Assuming, therefore, that
appellant merely intended to inflict physical injuries upon the boy, he is nevertheless liable for the death of
the victim caused by such injuries.
The killing in this case was attended by treachery. There is treachery when the offender commits any of
the crimes against persons, employing means, methods or forms in the execution thereof which tend directly
and especially to insure its execution without risk to himself arising from the defense which the offended party
might make.[18] It is beyond dispute that the killing of minor children who, by reason of their tender years,
could not be expected to put up a defense, is treacherous.[19]
Evident premeditation is absent. For the court to appreciate evident premeditation, the prosecution must
prove: (a) the time the accused decided to commit the crime; (b) an overt act manifestly indicating that he
clung to his determination; and (c) sufficient lapse of time between the decision and the execution to allow

the accused to reflect upon the consequence of his act.[20] The prosecution failed to establish any of these
requisites.
The trial court incorrectly appreciated cruelty against the accused. The test in appreciating cruelty as an
aggravating circumstance is whether the accused deliberately and sadistically augmented the wrong by
causing another wrong not necessary for its commission, or inhumanly increased the victims suffering or
outraged or scoffed at his person or corpse.[21] The nature of cruelty lies in the fact that the culprit enjoys and
delights in making his victim suffer slowly and gradually, causing him moral and physical pain which is
unnecessary for the consummation of the criminal act which he intended to commit. [22] The sheer number of
wounds, however, is not a test for determining whether cruelty attended the commission of a crime. [23]
The prosecution did not show that appellant enjoyed inflicting injuries upon the victim. The inordinate
force employed by appellant appears to have been caused not by any sadistic bend but rather by the drugs
that diminished his capacity.
The trial court also considered intoxication as an aggravating circumstance. The Solicitor General defends
this ruling, contending that appellants habitual drug addiction is an alternative circumstance analogous to
habitual intoxication under Article 15 of the Revised Penal Code:
Intoxication of the offender shall be taken into consideration as a mitigating circumstance when the offender
has committed a felony in a state of intoxication, if the same is not habitual or subsequent to the plan to
commit said felony; but when the intoxication is habitual or intentional, it shall be considered as an
aggravating circumstance.
The Court does not agree. Article 13 of the Revised Penal Code provides a list of mitigating circumstances,
which work to reduce the accuseds penalty. Article 13(10) allows courts to consider any other circumstance
of a similar nature and analogous to those mentioned therein. Neither Article 14 of the same Code on
aggravating circumstances[24] nor Article 15 on alternative circumstances,[25] however, contain a provision
similar to Article 13(10). Accordingly, the Court cannot consider appellants drug addiction as an aggravating
circumstance. Criminal statutes are to be strictly construed and no person should be brought within their
terms who is not clearly within them.[26]
Appellant maintains that his plea of guilt mitigates his criminal liability. On this matter, this Court said
in People v. Ramos:[27]
To effectively alleviate the criminal liability of an accused, a plea of guilt must be made at the first opportunity,
indicating repentance on the part of the accused. In determining the timeliness of a plea of guilty, nothing
could be more explicit than the provisions of the Revised Penal Code requiring that the offender voluntarily
confess his guilt before the court prior to the presentation of the evidence for the prosecution. It is wellsettled that a plea of guilty made after arraignment and after trial had begun does not entitle the accused to
have such plea considered as a mitigating circumstance.
As appellant changed his plea only after the prosecution had rested its case and just when he was just about
to testify, said mitigating circumstance is unavailing.
The trial court credited appellant with the mitigating circumstance of voluntary surrender. For voluntary
surrender to be appreciated, these elements must be established: (1) the offender has not been actually
arrested; (2) he surrendered himself to a person in authority or an agent of a person in authority; and (3) his
surrender was voluntary.[28] It is sufficient that the surrender be spontaneous and made in a manner clearly
indicating the intent of the accused to surrender unconditionally, either because he acknowledges his guilt or

he wishes to save the authorities the trouble and expense which will necessarily be incurred in searching for
and capturing him.[29]
Appellant has failed to adequately prove voluntary surrender. While he claimed that he surrendered to
the police on the same day that the victim was killed, he did not detail the circumstances like the time and
place of such surrender. Neither did appellant state to whom he surrendered. He did not indicate if the
person was a person in authority or an agent of the latter. PO3 Javiers testimony that he learned of
appellants alleged surrender is hearsay and does not serve to corroborate appellants claim.
The Court, however, discerns no intention on the part of appellant to commit so grave a wrong against his
victim. Appellants intention was merely to maltreat the victim, not to kill him. When appellant realized the
horrible consequences of his felonious act, he immediately brought the victim to the hospital. [30] Sadly, his
efforts were for naught.
In view of the attendance of the aggravating circumstance of treachery, the killing of the victim is qualified
to murder, punishable under Article 248 of the Revised Penal Code byreclusion perpetua to death. The
murder was attended by the mitigating circumstance of lack of intention to commit so grave a wrong and
there is no aggravating circumstance. Hence, the lesser penalty of reclusion perpetua must be imposed upon
appellant.[31]
Appellant is liable for civil indemnity of P50,000.00 without proof of damages.[32] Moral damages that are
recoverable for the mental anguish or emotional distress suffered by the heirs of the victim cannot be
awarded here as the prosecution did not present any evidence to justify its award.[33]
WHEREFORE, accused-appellant Emelito Sitchon y Tayag is found GUILTY beyond reasonable doubt of
Murder, as defined and punished by Article 248 of the Revised Penal Code, and is sentenced to suffer the
penalty of reclusion perpetua. He is ordered to pay the heirs of Mark Anthony Fernandez civil indemnity in
the amount of P50,000.00.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Buena, Ynares-Santiago,
De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.

[1]

Records, p. 1.

[2]

Id., at 17.

[3]

TSN, June 4, 1998, p. 3.

[4]

TSN, October 15, 1996, pp. 2-11.

[5]

TSN, October 29, 1996, pp. 14-19.

[6]

Exhs. F and F-1.

[7]

Exh. H.

[8]

Exh. G.

[9]

TSN, October 29, 1996, pp. 3-11.

[10]

TSN, November 12, 1996, pp. 2-5.

[11]

Exh. "K."

[12]

Exh. "I."

[13]

Exh. N.

[14]

TSN, June 4, 1998, pp. 4-9.

[15]

Records, p. 111.

[16]

People vs. Ural, 56 SCRA 138 (1974).

[17]

People vs. Flores, 252 SCRA 31 (1996).

[18]

REVISED PENAL CODE, ARTICLE 14 (16).

[19]

People vs. Palomar, 278 SCRA 114 (1997); People vs. Gonzales, 311 SCRA 547 (1999).

[20]

People v. Bias, 320 SCRA 22 (1999).

[21]

People v. Iligan, 369 Phil. 1005 (1999).

[22]

People v. Tanzon, 320 SCRA 762 (1999).

[23]

People vs. Panida, 310 SCRA 66 (1999).

[24]

ART. 14. Aggravating circumstances. The following are aggravating circumstances:

1. That advantage be taken by the offender of his public position.

2. That the crime be committed in contempt of or with insult to the public authorities.
3. That the act be committed with insult or in disregard of the respect due to the offended party on account
of his rank, age, or sex, or that it be committed in the dwelling of the offended party, if the latter has
not given provocation.
4. That the act be committed with abuse of confidence or obvious ungratefulness.
5. That the crime be committed in the palace of the Chief Executive, or in his presence, or where public
authorities are engaged in the discharge of their duties, or in a place dedicated to religious worship.
6. That the crime be committed in the nighttime, or in an uninhabited place, or by a band, whenever such
circumstances may facilitate the commission of the offense.
Whenever more than three armed malefactors shall have acted together in the commission of an offense, it
shall be deemed to have been committed by a band.
7. That the crime be committed on the occasion of a conflagration, shipwreck, earthquake, epidemic, or other
calamity or misfortune.
8. That the crime be committed with the aid of armed men or persons who insure or afford impunity.
9. That the accused is a recidivist.
A recidivist is one who, at the time of his trial for one crime, shall have been previously convicted by final
judgment of another crime embraced in the same title of this Code.
10. That the offender has been previously punished for an offense to which the law attaches an equal or
greater penalty or for two or more crimes to which it attaches a lighter penalty.
11. That the crime be committed in consideration of a price, reward, or promise.

12. That the crime be committed by means of inundation, fire, poison, explosion, stranding of a vessel or
intentional damage thereto, derailment of a locomotive, or by the use of any other artifice involving
great waste and ruin.
13. That the act be committed with evident premeditation.
14. That craft, fraud, or disguise be employed.
15. That advantage be taken of superior strength, or means be employed to weaken the defense.
16. That the act be committed with treachery (alevosia).
There is treachery when the offender commits any of the crimes against the person, employing means,
methods, or forms in the execution thereof which tend directly and specially to insure its execution,
without risk to himself arising from the defense which the offended party might make.
17. That means be employed or circumstances brought about which add ignominy to the natural effects of
the act.
18. That the crime be committed after an unlawful entry.
There is an unlawful entry when an entrance is effected by a way not intended for the purpose.
19. That as a means to the commission of a crime a wall, roof, floor, door, or window be broken.
20. That the crime be committed with the aid of a persons under fifteen years of age or by means of motor
vehicles, motorized watercraft, airships, or other similar means.
21. That the wrong done in the commission of the crime be deliberately augmented by causing other wrong
not necessary for its commission.
[25]

ART. 15. The concept. Alternative circumstances are those which must be taken into consideration as
aggravating or mitigating according to the nature and effects of the crime and the other conditions
attending its commission. They are the relationship, intoxication and the degree of instruction and
education of the offender.
The alternative circumstance of relationship shall be taken into consideration when the offended
party is the spouse, ascendant, descendant, legitimate, natural, or adopted brother or sister, or relative
by affinity in the same degrees of the offender.
The intoxication of the offender shall be taken into consideration as a mitigating circumstance
when the offender has committed a felony in a state of intoxication, if the same is not habitual or
subsequent to the plan to commit said felony; but when the intoxication is habitual or intentional, it
shall be considered as an aggravating circumstance.

[26]

United States vs. Abad Santos, 36 Phil. 243 (1917).

[27]

296 SCRA 559 (1998).

[28]

People v. Aquino, 314 SCRA 543 (1999).

[29]

People v. Sambulan, 289 SCRA 500 (1998); People v. Ramos, supra.

[30]

People vs. Ural, supra.

[31]

REVISED PENAL CODE, ARTICLE 63(3).

[32]

People v. Borreros, 306 SCRA 680 (1999).

[33]

People v. Langres, 316 SCRA 769 (1999).

SECOND DIVISION
[G.R. No. 125909. June 23, 2000]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HERMOGENES FLORA AND EDWIN FLORA, accusedappellants.
DECISION
QUISUMBING, J.:
Accused-appellants seek the reversal of the decision[1] dated November 7, 1995, of the Regional Trial Court,
Branch 26, Santa Cruz, Laguna, in Criminal Case Nos. SC-4810, 4811 and 4812, finding them guilty beyond
reasonable doubt of the crimes of double murder and attempted murder, and sentencing them to reclusion
perpetua, payment of P50,000.00 for indemnity, P14,000.00 for burial expenses and P619,800.00 for loss of
earning capacity in Crim. Case SC-4810 for the death of Emerita Roma; reclusion perpetua, payment of
P50,000.00 as indemnity, P14,000.00 for burial expenses and P470,232.00 for loss of earning capacity for the
death of Ireneo Gallarte in Crim. Case SC-4811; and imprisonment from 2 years, 4 months and 1 day of prision
correccional as minimum to 10 years of prision mayor and payment of P15,000.00 to Flor Espinas for injuries
sustained in Crim. Case SC-4812.
On February 26, 1993, Prosecution Attorney Joselito D.R. Obejas filed three separate informations charging
appellants as follows:
Criminal Case No. 4810

"That on or about January 10, 1993, at around 1:30 oclock in the morning thereof, in Sitio Silab,
Barangay Longos, municipality of Kalayaan, province of Laguna, and within the jurisdiction of
this Honorable Court, accused Hermogenes Flora @ Bodoy, conspiring and confederating with
accused Edwin Flora @ Boboy, and mutually helping one another, while conveniently armed
then with a caliber .38 handgun, with intent to kill, by means of treachery and with evident
premeditation, did then and there wilfully, unlawfully and feloniously attack, assault and shoot
with the said firearm one EMERITA ROMA y DELOS REYES, thereby inflicting upon the latter
gunshot wounds on her chest which caused her immediate death, to the damage and prejudice
of her surviving heirs.
That in the commission of the crime, the aggravating circumstances of treachery and evident
premeditation are present."[2]
Criminal Case No. 4811
"That on or about January 10, 1993, at around 1:30 oclock in the morning thereof, in Sitio Silab,
Barangay Longos, municipality of Kalayaan, province of Laguna, and within the jurisdiction of
this Honorable Court, accused HERMOGENES FLORA @ Bodoy, conspiring and confederating
with accused Erwin [Edwin] Flora @ Boboy, and mutually helping one another, while
conveniently armed then with a caliber .38 handgun, with intent to kill, by means of treachery
and with evident premeditation, did then and there willfully, unlawfully and feloniously attack,
assault and shoot with the said firearm one IRENEO GALLARTE y VALERA, thereby inflicting
upon the latter gunshot wounds on his chest which caused his immediate death, to the damage
and prejudice of his surviving heirs.
That in the commission of the crime, the aggravating circumstances of treachery and evident
premeditation are present."[3]
Criminal Case No. 4812
"That on or about January 10, 1993, at around 1:30 oclock in the morning thereof, in Sitio Silab,
Barangay Longos, municipality of Kalayaan, province of Laguna, and within the jurisdiction of
this Honorable Court, accused Hermogenes Flora @ Bodoy, conspiring and confederating with
accused Erwin [Edwin] Flora @ Boboy, and mutually helping one another, while conveniently
armed then with a caliber .38 handgun, with intent to kill, by means of treachery and with
evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault
and shoot with the said firearm one FLOR ESPINAS y ROMA, hitting the latter on her shoulder,
and inflicting upon her injuries which, ordinarily, would have caused her death, thus, accused
performed all the acts of execution which could have produced the crime of Murder as a
consequence but which, nevertheless did not produce it by reason of a cause independent of
their will, that is, by the timely and able medical attendance given the said Flor Espinas y Roma,
which prevented her death, to her damage and prejudice."[4]
During arraignment, both appellants pleaded not guilty. Trial thereafter ensued. Resolving jointly Criminal
Cases Nos. SC-4810, SC-4811 and SC-4812, the trial court convicted both appellants for the murder of Emerita
Roma and Ireneo Gallarte, and the attempted murder of Flor Espinas. The dispositive portion of the decision
reads:
"WHEREFORE, in the light of the foregoing, this Court finds as follows:

In CRIMINAL CASE NO. SC-4810, for the death of Emerita Roma, the Court finds both accused
Hermogenes Flora and Edwin Flora guilty beyond reasonable doubt of the crime of Murder
qualified by treachery and sentences each of them to suffer the penalty of reclusion perpetua,
with all the accessory penalties of the law, and to indemnify the heirs of the victim the sums of
(a) P50,000.00 as death indemnity; (b) P14,000.00 as expenses for wake and burial; and (c)
P619,800 for lost (sic) of earning capacity, without any subsidiary imprisonment in case of
insolvency and to pay the costs.
In CRIMINAL CASE NO. SC-4811, for the death of Ireneo Gallarte, the Court finds both accused
Hermogenes Flora and Edwin Flora guilty beyond reasonable doubt of the crime of Murder,
qualified by treachery and with the aggravating circumstance of evident premeditation and
sentences each of them to suffer the penalty of reclusion perpetua, with all the accessory
penalties of the law, and to indemnify the heirs of the victim the sums of (a) P50,000.00 as
death indemnity; (b) P14,000.00 as expenses for wake and burial; and (c) P470,232.00 for lost
(sic) of earning capacity, without any subsidiary imprisonment in case of insolvency and to pay
the costs.
In CRIMINAL CASE NO. SC-4812, for the injuries sustained by Flor Espinas, the Court finds both
accused Hermogenes Flora and Edwin Flora guilty beyond reasonable doubt of the crime of
Attempted Murder and sentences each of them to suffer an indeterminate penalty of
imprisonment from two (2) years, four (4) months and one (1) day of prision correccional, as
minimum, to ten (10) years of prision mayor, as maximum, and to pay P15,000.00 to Flor
Espinas as indemnity for her injuries and to pay the costs.
SO ORDERED."[5]
The facts of the case, borne out by the records, are as follows:
Days before the incident, appellant Hermogenes Flora alias "Bodoy," had a violent altercation with a certain
Oscar Villanueva. Oscars uncle, Ireneo Gallarte, pacified the two.
On the evening of January 9, 1993, a dance party was held to celebrate the birthday of Jeng-jeng Malubago in
Sitio Silab, Barangay Longos, Kalayaan, Laguna. Appellant Hermogenes Flora, allegedly a suitor of Jeng-jeng
Malubago, attended the party with his brother and co-appellant Edwin Flora, alias "Boboy". Also in
attendance were Rosalie Roma, then a high school student; her mother, Emerita Roma, and her aunt, Flor
Espinas. Ireneo Gallarte, a neighbor of the Romas, was there too.
The dancing went on past midnight but at about 1:30, violence erupted. On signal by Edwin Flora, Hermogenes
Flora fired his .38 caliber revolver twice. The first shot grazed the right shoulder of Flor Espinas, then hit
Emerita Roma, below her shoulder. The second shot hit Ireneo Gallarte who slumped onto the floor. Rosalie,
was shocked and could only utter, "siBodoy, si Bodoy", referring to Hermogenes Flora. Edwin Flora
approached her and, poking a knife at her neck, threatened to kill her before he and his brother, Hermogenes,
fled the scene.
The victims of the gunfire were transported to the Rural Health Unit in Longos, Kalayaan, Laguna, where
Emerita and Ireneo died.[6]
Early that same morning of January 10, 1993, the police arrested Edwin Flora at his rented house in Barangay
Bagumbayan, Paete, Laguna. Hermogenes Flora, after learning of the arrest of his brother, proceeded first to

the house of his aunt, Erlinda Pangan, in Pangil, Laguna but later that day, he fled to his hometown in Pipian,
San Fernando, Camarines Sur.
The autopsy conducted by the medico-legal officer, Dr. Ricardo R. Yambot, Jr., revealed the following fatal
wounds sustained by the deceased:
EMERITA ROMA
"a) Gunshot of entrance at the posterior chest wall near the angle of the axillary
region measuring 1 cm. in diameter with clean cut inverted edges involving deep
muscles, and subcutaneous tissues and travel through both lobes of the lungs,
including the great blood vessels.
About 400 cc of clotted blood was extracted from the cadaver. The bullet caliver
38 was extracted from the lungs.
The cause of her death was attributed to Hypovolemic shock secondary to
massive blood loss secondary to gunshot wound of the posterior chest wall." [7]
IRENEO GALLARTE
"Gunshot wound of entrance at the left arm, measuring 1 cm. in diameter with
clean cut inverted edges involving the deep muscles, subcutaneous tissues
traveling through the anterior chest wall hitting both lobes of the lungs and each
great blood vessels obtaining the bullet fragments.
About 500 cc. of clotted blood was obtained from the cadaver."
His cause of death was attributed to Hypovelemic shock secondary to massive
blood loss secondary to gunshot wound of the left arm."[8]
Flor Espinas submitted herself to a medical examination by Dr. Dennis Coronado. Her medical
certificate [9] disclosed that she sustained a gunshot wound, point of entry, 2 x 1 cm. right supra scapular area
mid scapular line (+) contusion collar; and another gunshot wound with point of exit 1 x 1 cm. right deltoid
area.
Three criminal charges were filed against the Flora brothers, Hermogenes and Edwin, before Branch 26 of the
Regional Trial Court of Sta. Cruz, Laguna. During the trial, the prosecution presented two eyewitnesses,
namely, (1) Rosalie Roma, daughter of one of the victims, Emerita Roma, and (2) Flor Espinas, the injured
victim. Rosalie narrated the treacherous and injurious attack by Hermogenes Flora against the victims. Flor
detailed how she was shot by him.
Felipe Roma, the husband of Emerita, testified that his wife was forty-nine (49) years old at the time of her
death and was a paper mache maker, earning an average of one thousand (P1,000.00) pesos a week. He
claimed that his family incurred fourteen thousand (P14,000.00) pesos as expenses for her wake and burial.
Ireneo Gallartes widow, Matiniana, testified that her husband was fifty-two (52) years old, a carpenter and a
substitute farmer earning one hundred (P100.00) to two hundred (P200.00) pesos a day. Her family spent
fourteen thousand (P14,000.00) pesos for his wake and burial.

The defense presented appellants Hermogenes and Edwin Flora, and Imelda Madera, the common-law wife of
Edwin. Appellants interposed alibi as their defense, summarized as follows:
Version of Edwin Flora:
"Edwin Flora, 28 years old, testified that accused Hermogenes Flora is his brother. On January
10, 1993, around 1:30 in the morning, he was at Barangay Bagumbayan, Paete, Laguna in the
house of Johnny Balticanto, sleeping with his wife. Policemen came at said house looking for his
brother Hermogenes. Replying to them that his brother was not living there, policemen took
him instead to the Municipal building of Paete and thereafter transferred and detained him to
(sic) the Municipal building of Kalayaan.
He recalled that on January 9, 1993, after coming from the cockpit at about 3:00 p.m. he and
his accused brother passed by the house of Julito Malubago. His brother Hermogenes was
courting the daughter of Julito Malubago. At about 6:00 p.m. he went home but his brother
stayed behind since there would be a dance party that night."[10]
Version of Hermogenes Flora:
"Hermogenes Flora, 21 years old, testified that he did not kill Ireneo Gallarte and Emerita Roma
and shot Flor Espina on January 10, 1993 at about 1:30 in the morning of Silab, Longos Kalayaan
Laguna.
On said date, he was very much aslept (sic) in the house of his sister Shirley at Sitio
Bagumbayan, Longos, Kalayaan. From the time he slept at about 8:00 in the evening to the time
he woke up at 6:00 in the morning, he had not gone out of her sisters house. He knew the
victims even before the incident and he had no severe relation with them.
xxx
He also testified that in the morning of January 10, 1993, Imelda Madera came to their house
and told him that his brother Edwin was picked-up by the policemen the night before. Taken
aback, his sister told him to stay in the house while she would go to the municipal hall to see
their brother Edwin. Thereafter, his aunt and sister agreed that he should go to Bicol to inform
their parents of what happened to Edwin."[11]
Madera corroborated the testimony of her husband.[12]
As earlier stated, the trial court convicted accused-appellants of the crime of double murder and attempted
murder. Appellants now raise this sole assigned error:
"THE TRIAL COURT ERRED IN CONVICTING THE TWO ACCUSED-APPELLANTS DESPITE THE
FAILURE OF THE PROSECUTION TO MORALLY ASCERTAIN THEIR IDENTITIES AND GUILT FOR THE
CRIMES CHARGED."
At the outset, it may be noted that the trial court found both appellants have been positively identified.
However, they challenge the courts finding that they failed to prove their alibi because they did not establish
that it was physically impossible for them to be present at the crime scene. According to the trial court, by
Hermogenes own admission, the house of his sister Shirley, where appellants were allegedly sleeping, was

only one (1) kilometer away from Sitio Silab, where the offenses allegedly took place. The sole issue here, in
our view, concerns only the plausibility of the appellants alibi and the credibility of the witnesses who
identified them as the perpetrators of the crimes charged.
For the defense of alibi to prosper, it is imperative that the accused establish two elements: (1) he was not at
the locus delicti at the time the offense was committed, and (2) it was physically impossible for him to be at
the scene at the time of its commission.[13] The defense of alibi and the usual corroboration thereof are
disfavored in law since both could be very easily contrived.[14] In the present case, appellants alibi is patently
self-serving. Although Edwins testimony was corroborated by his common-law wife, it is ineffectual against
the positive testimonies of eyewitnesses and surviving victims who contradicted his alibi. Moreover, an alibi
becomes less plausible as a defense when it is invoked and sought to be crafted mainly by the accused himself
and his immediate relative or relatives.[15] Appellants defense of alibi should have been corroborated by a
disinterested but credible witness.[16]Said uncorroborated alibi crumbles in the face of positive identification
made by eyewitnesses.[17]
In their bid for acquittal, appellants contend that they were not categorically and clearly identified by the
witnesses of the prosecution. They claim that the testimonies of the said witnesses were not entitled to
credence. They assail the credibility of two eyewitnesses, namely Rosalie Roma and Flor Espinas, because of
the alleged inconsistencies in their testimonies. For instance, according to appellants, Rosalie Roma testified
she was in the dance hall when the gunshots were heard, and that she was dancing in the middle of the dance
hall when Hermogenes shot Emerita Roma, Ireneo Gallarte and Flor Espinas,
"Q....Where were you when Hermogenes Roma shot these Ireneo Gallarte, Emerita Roma and
Flor Espinas?
A....I was dancing, sir. (Emphasis ours.)
Q....And how far were you from Hermogenes Flora when he shot these persons while you were
dancing?
A....Two armslength from me only, sir."[18]
However, to a similar question, later in her testimony, she replied,
"Q....And where were these Emerita Roma, Your mother, Ireneo Gallarte and Flor Espinas when
Hermogenes Flora shot at them?
A....They were beside each other.
Q....And how far were you from these 3 persons?
A....Because they were standing beside the fence and I was only seated near them,
sir."[19] (Emphasis ours.)
On this issue, we do not find any inconsistency that impairs her credibility or renders her entire testimony
worthless. Nothing here erodes the effectiveness of the prosecution evidence. What counts is the witnesses
admitted proximity to the appellants. Was she close enough to see clearly what the assailant was doing? If so,
is there room for doubt concerning the accuracy of her identification of appellant as one of the malefactors?

Appellants argue that since the attention of witness Flor Espinas was focused on the dance floor, it was
improbable for her to have seen the assailant commit the crimes. On cross-examination, said witness testified
that while it was true she was watching the people on the dance floor, nonetheless, she also looked
around (gumagala) and occasionally looked behind her and she saw both appellants who were known to
her.[20] Contrary to appellants contention that Flor did not have a sufficient view to identify the assailants, the
trial court concluded that Flor was in a position to say who were in the party and to observe what was going
on. On this point, we concur with the trial court.
Well-settled is the rule that findings of the trial court on the credibility of witnesses deserve respect, for it had
the opportunity to observe first-hand the deportment of witnesses during trial.[21] Furthermore, minor
inconsistencies do not affect the credibility of witnesses, as they may even tend to strengthen rather than
weaken their credibility.[22] 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.[23] Such minor flaws may even enhance the worth of a testimony, for they guard
against memorized falsities.
Appellants assert that Flor Espinas and Rosalie Roma were biased because they are relatives of the victim
Emerita Roma. However, unless there is a showing of improper motive on the part of the witnesses for
testifying against the accused, the fact that they are related to the victim does not render their clear and
positive testimony less worthy of credit. On the contrary, their natural interest in securing the conviction of
the guilty would deter them from implicating other persons other than the culprits, for otherwise, the latter
would thereby gain immunity.[24]
Here, appellants did not present any proof of improper motive on the part of the eyewitnesses in pointing to
the Flora brothers as the perpetrators of the crime. There is no history of animosity between them. Emerita
Roma and Flor Espinas were merely innocent bystanders when hit by gunfire. Where eyewitnesses had no
grudge against the accused, their testimony is credible.[25] In the absence of ulterior motive, mere relationship
of witnesses to the victim does not discredit their testimony.[26]
Coming now to the criminal responsibility of appellants. In the present case, when Hermogenes Flora first fired
his gun at Ireneo, but missed, and hit Emerita Roma and Flor Espinas instead, he became liable for Emeritas
death and Flors injuries. Hermogenes cannot escape culpability on the basis of aberratio ictus principle.
Criminal liability is incurred by any person committing a felony, although the wrongful act be different from
that which he intended.[27]
We find that the death of Emerita and of Ireneo were attended by treachery. In order for treachery to exist,
two conditions must concur namely: (1) the employment of means, methods or manner of execution which
would ensure the offenders safety from any defense or retaliatory act on the part of the offended party; and
(2) such means, method or manner of execution was deliberately or consciously chosen by the
offender.[28] When Hermogenes Flora suddenly shot Emerita and Ireneo, both were helpless to defend
themselves. Their deaths were murders, not simply homicides since the acts were qualified by treachery. Thus,
we are compelled to conclude that appellant Hermogenes Flora is guilty beyond reasonable doubt of double
murder for the deaths of Emerita Roma and Ireneo Gallarte, and guilty of attempted murder of Flor Espinas.
Is the other appellant, Edwin Flora, equally guilty as his brother, Hermogenes? For the murder of Ireneo
Gallarte, was there conspiracy between appellants? For conspiracy to exist, it is not required that there be an
agreement for an appreciable period prior to the occurrence. It is sufficient that at the time of the commission
of the offense, the accused and co-accused had the same purpose and were united in execution.[29] Even if an
accused did not fire a single shot but his conduct indicated cooperation with his co-accused, as when his

armed presence unquestionably gave encouragement and a sense of security to the latter, his liability is that
of a co-conspirator.[30] To hold an accused guilty as a co-conspirator by reason of conspiracy, it must be shown
that he had performed an overt act in pursuance or furtherance of the conspiracy. [31] Edwins participation as
the co-conspirator of Hermogenes was correctly appreciated by the trial court, viz.:
"Edwin Flora demonstrated not mere passive presence at the scene of the crime. He stayed
beside his brother Hermogenes, right behind the victims while the dance party drifted late into
the night till the early hours of the morning the following day. All the while, he and his brother
gazed ominously at Ireneo Gallarte, like hawks waiting for their prey. And then Edwins flick of
that lighted cigarette to the ground signaled Hermogenes to commence shooting at the hapless
victims. If ever Edwin appeared acquiescent during the carnage, it was because no similar
weapon was available for him. And he fled from the crime scene together with his brother but
not after violently neutralizing any obstacle on their way. While getting away, Edwin grabbed
Rosalie Roma and poked a knife at her neck when the latter hysterically shouted "si Bodoy, Si
Bodoy," in allusion to Hermogenes Flora, whom she saw as the gunwielder. All told, Edwin, by
his conduct, demonstrated unity of purpose and design with his brother Hermogenes in
committing the crimes charged. He is thus liable as co-conspirator."[32]
However, we cannot find Edwin Flora similarly responsible for the death of Emerita Roma and the injury of
Flor Espinas. The evidence only shows conspiracy to kill Ireneo Gallarte and no one else. For acts done outside
the contemplation of the conspirators only the actual perpetrators are liable. In People v. De la Cerna, 21 SCRA
569, 570 (1967), we held:
"x x x And the rule has always been that co-conspirators are liable only for acts done pursuant
to the conspiracy. For other acts done outside the contemplation of the co-conspirators or
which are not the necessary and logical consequence of the intended crime, only the actual
perpetrators are liable. Here, only Serapio killed (sic) Casiano Cabizares. The latter was not even
going to the aid of his father Rafael but was fleeing away when shot."
To conclude, appellant Edwin Flora is guilty beyond reasonable doubt only of the murder of Ireneo Gallarte.
He has no liability for the death of Emerita Roma nor for the injuries of Flor Espinas caused by his co-accused
Hermogenes Flora.
WHEREFORE, the decision of the trial court is hereby MODIFIED as follows:
(1)....Appellants Hermogenes Flora and Edwin Flora are found GUILTY beyond reasonable doubt
of the MURDER of Ireneo Gallarte and sentenced to each suffer the penalty of reclusion
perpetua and to pay jointly and severally the heirs of Ireneo Gallarte in the sum of P50,000.00
as death indemnity; P14,000.00 compensatory damages for the wake and burial; and
P470,232.00 representing loss of income without any subsidiary imprisonment in case of
insolvency.
(2)....Hermogenes Flora is found GUILTY beyond reasonable doubt of the MURDER of Emerita
Roma and the ATTEMPTED MURDER of Flor Espinas. For the MURDER of EMERITA ROMA,
Hermogenes Flora is sentenced to suffer the penalty of reclusion perpetua, to indemnify the
heirs of Emerita Roma in the sum of P50,000.00 as death indemnity, P14,000.00 as expenses for
wake and burial, and P619,800.00 for loss of earning capacity, without any subsidiary
imprisonment in case of insolvency. For the ATTEMPTED MURDER of Flor Espinas, Hermogenes
Flora is sentenced to suffer the penalty of imprisonment from two (2) years, four (4) months

and one (1) day of prision correccional as minimum to ten (10) years of prision mayor, as
maximum, and to pay P15,000.00 to Flor Espinas as indemnity for her injuries.
(3)....Appellant Edwin Flora is ACQUITTED of the murder of Emerita Roma and the attempted
murder of Flor Espinas.
Costs against appellants.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

[1]

Rollo, pp. 32 - 51.

Id. at 5.
[3]
Id. at 6.
[4]
Id. at 7.
[5]
Id. at 49-51.
[6]
TSN, February 1, 1995, pp. 14-15; Records, pp. 2-3.
[7]
Records, SC-4810, p. 3.
[8]
Records, SC-4811, p. 3.
[9]
Records, SC-4812, p. 5.
[10]
Rollo, p. 70.
[11]
Id. at 71.
[12]
TSN, January 18, 1995, pp. 2-13.
[13]
People vs. Batulan, 253 SCRA 52, 53 (1996)
[14]
People vs. De Castro, 252 SCRA 341, 352 (1996)
[15]
People vs. Danao, 253 SCRA 146, 147 (1996)
[16]
People vs. Fabrigas Jr., 261 SCRA 436, 437 (1996)
[17]
People vs. Ferrer, 255 SCRA 19, 35 (1996)
[18]
TSN, June 9, 1993, p. 4.
[19]
Id. at 6. A fair reading could reconcile Rosalies answers to mean having a seat for herself while the dance
was ongoing.
[20]
TSN, July 19, 1993, pp. 15-16.
[21]
People vs. Ramos, 240 SCRA 191, 192 (1995)
[22]
People vs. Lorenzo, 240 SCRA 624, 626 (1995)
[23]
People vs. Nicolas, 241 SCRA 67, 68 (1995)
[24]
People vs. Alcantara, 33 SCRA 812, 821 (1970)
[25]
People vs. Asil, 141 SCRA 286, 288 (1986)
[26]
People vs. Radomes, 141 SCRA 548, 549 (1986)
[27]
Revised Penal Code, Art. 4.
[28]
People vs. Estillore, 141 SCRA 456, 460 (1986)
[2]

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-35574 September 28, 1984
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
VALENTINA MANANQUIL Y LAREDO, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Herminio Sugay for defendant-appellant.

CUEVAS, J.:

In an amended Information 1 filed before the then Court of First Instance of Rizal, VALENTINA MANANQUIL y
LAREDO was accused of PARRICIDE allegedly committed as follows:
That on or about the 6th day of March, 1965, in Pasay City, Philippines, and within the
jurisdiction of this Hon. Court, the abovenamed accused, did then and there wilfully, unlawfully
and feloniously, with evident premeditation, that is, having conceived and deliberated to kill
her husband, Elias Day y Pablo, with whom she was united in lawful wedlock, enter (sic) the
NAWASA building situated at Pasay City, where said Elias Day y Pablo was working as a security
guard; and the said accused, having in her possession a bottle containing gasoline suddenly and
without warning, poured the contents on the person of her husband, Elias Day y Pablo, ignited
the gasoline, as a result of which, said Elias Day y Pablo suffered burns and injuries which
subsequently caused his death.
Contrary to law 2
Tried after pleading "NOT GUILTY" upon arraignment, accused was convicted and thereafter sentenced
toreclusion perpetua to indemnify the heirs of the deceased in the amount of P12,000.00; and to pay costs.
From the aforesaid judgment, she ventilated an appeal to the then Court of Appeals (which referred the
appeal to us considering that the penalty imposed was reclusion perpetua, assailing her aforesaid conviction
and contending that the trial court erred: 1) in convicting her solely on the basis of the alleged extrajudicial
confession; 2) in finding that Pneumonia was a complication of the burns sustained by the victim; 3) in not
finding her not to have cause the death of the deceased; and 4) in not acquitting her at least on ground of
reasonable doubt.
The prosecution's version of the incident as summarized in the People's Brief is as follows:
On March 6, 1965, at about 11:00 o'clock in the evening, appellant went to the NAWASA
Building at Pasay City where her husband was then working as a security guard. She had just
purchased ten (10) centavo worth of gasoline from the Esso Gasoline Station at Taft Avenue
which she placed in a coffee bottle (t.s.n., p. 13, January 13, 1969). She was angry of her
husband, Elias Day y Pablo, because the latter had burned her clothing, was maintaining a
mistress and had been taking all the food from their house. Upon reaching the NAWASA
Building, she knocked at the door. Immediately, after the door was opened, Elias Day shouted
at the appellant and castigated her saying, "PUTA BUGUIAN LAKAW GALIGAON" (t.s.n., p.
14, Id). The appellant tired of hearing the victim, then got the bottle of gasoline and poured the
contents thereof on the face of the victim (t.s.n., p. 14, Id). Then, she got a matchbox and set
the polo shirt of the victim a flame. (Exhs. "A" and "A-1", p. 197, Rec.)
The appellant was investigated by elements of the Pasay City Police to whom she gave a written
statement (Exh. "A", p. 197, Rec.) where she admitted having burned the victim.
Upon the other hand, the victim was taken first to the Philippine General Hospital and then to
the Trinity General Hospital at Sta. Ana, Manila, when he died on March 10, 1965. (Exh. "C", p.
208, rec.) due to pneumonia, lobar bilateral Burns 2 secondary. 3
Appellant's story on the other hand runs, thus:

It was before 10:00 o'clock p.m. when appellant returned from Olongapo City. She fed her
grandson and put him to bed. After filing the tank with water, she remembered that the next
day was a Sunday and she had to go to church. Her shoes were dirty but there was no gasoline
with which to clean them. Taking with her an empty bottle of Hemo, she left for a nearby
gasoline station and bought ten centavos worth of gasoline. Then she remembered that her
husband needed gasoline for his lighter so she dropped by his place of work. (p. 13, Ibid.)
Appellant saw her husband inside a bonding of the NAWASA standing by the window. As the
iron grille was open, she entered and knocked at the wooden door. Elias opened the door, but
when he saw his wife he shouted at her. Appellant said that she had brought the gasoline which
he needed for his lighter, but Elias, who was under the influence of liquor, cursed her thus:
"PUTA BUGUIAN LAKAW GALIGAON". Elias continued shouting and cursing even as appellant
told him that she had come just to bring the gasoline that he wanted. Appellant trembled and
became dizzy. She was beside herself and did not know that she was sprinkling the gasoline on
her husband's face. She was tired and dizzy and had to sit down for a while. Then she
remembered her grandson who was alone in the house so she went home leaving her husband
who was walking to and fro and not paying attention to her. (pp. 13-14, Ibid., p. 2, March 20,
1969)
She went to bed but could not sleep. She went back to the NAWASA compound to apologize to
her husband. Upon reaching the NAWASA, however, she found that police officers were
present. Her husband was walking all around still fuming mad, and when he saw her he chased
her. A policeman pulled appellant aside and asked if she was the wife of Elias. When she replied
in the affirmative, the police officer accused her of burning her husband. She denied the
accusation. But the police took her to the headquarters, and prepared a written statement,
Exhibits A, A-1. Appellant was made to sign said statement upon a promise that she would be
released if she signed it. Although she did not know the contents, she signed it because of the
promise. (pp. 14-16. Id.; p. 5, March 20,1969) 4
Appellant's assigned errors boil down to two (2) main issues: (1) whether or not appellant's extrajudicial
confession was voluntarily given; and (2) whether or not the burns sustained by the victim contributed to
cause pneumonia which was the cause of the victim's death.
Right after the burning incident, appellant was picked up by the police operatives of Pasay City. She was
thereafter investigated by Sgt. Leopoldo Garcia of the Pasay City Police who took her statement in Tagalog and
in Question and Answer form which was reduced into writing. 5 After Sgt. Garcia was through taking her
statement, she was brought to Fiscal Paredes who asked her questions regarding the said statement and its
execution and before whom said statement was subscribed and sworn to by her. In that investigation,
appellant categorically admitted having thrown gasoline at her husband and thereafter set him aflame as
evidenced by this pertinent portion of her statementT Ano ang nangyari at iyong binuksan ng gasolina ang iyong asawa na si Elias
Day?
S Dahil may sala siya, at sinunog niya ang aking mga damit, at may babae pa, at
saka lahat ng aming pagkain sa bahay ay hinahakot.
T Ng dahil dito sa mga binanggit mong ito ay ano ang ginawa mo sa iyong asawa?

S Ako po ay nagdilim ang aking isipan at ang ginawa ko ay naisip kong buhusan
ng gasolina, kaya ang aking ginawa ay bumili ako ng halagang 10 sentimos sa
Esso Gasoline Station sa Tall Avenue at inilagay ko sa isang boti.
T Pagkatapos na ikaw ay makabili ng gasolina sa station ng Esso sa Taft Avenue
dito sa Pasay City, ay ano ang ginawa mo?
S Ako po ay nagpunta sa kanya na pinaggoguardiahan sa Nawasa at pagdating ko
nuon ay kumatok ako sa pintuan ng Nawasa, at nang marinig niya ang aking
katok sa pinto ay binuksan niya ang pintuan, at pagkabukas ng pintuan ay nakita
niya ako, at nagalit siya at ako ay minura ng puta putan Ina mo, lalakad ka ng
gabi, at namumuta raw ako, at pagkatapos na ako ay mamura ay hinahabol pa
ako ng suntok, kayat ang ginawa ko po kinuha ko ang aking dalang bote na may
gasolina at aking ibinuhos sa kanyang katawan at aking kinuha ang posporo at
aking sinindihang at hangang magliyab ang suot niyang polo shirt, na may guhit
na itim at puti.
T Alam mo ba na kung ano ang iyong ginawa sa iyong asawa kanginang humigit
kumulang na mag-iika alas 11:00 ng gabi Marzo 6, 1965?
S Opo, aking sinunog ang aking asawa. (Exhs. A & A-1 Emphasis supplied)
She would now like her aforesaid extrajudicial confession discredited by asserting that she did not understand
its contents because she is not a Tagala aside from having reached only the primary grades; and furthermore,
that said statement was signed by her merely upon the promise of the policemen that she will later be
released.
We find appellant's aforesaid assertions a mere pretense too flimsy to be accepted as true. For the truth is
that appellant knew and understood Tagalog despite her not being a Tagala, having stayed in Manila since
1951, continuously up to the time of the burning incident in question for which she was investigated. During
this period of almost fourteen years, she was in daily association with Tagalogs communicating with them in
Pilipino. This is clear from her admission on cross-examination which runs thusQ But you can understand Tagalog because of the length of time that you litem
been living here in Manila?
A Yes.
Q And as a matter of fact, when you buy something from the store, you speak
Tagalog?
A Yes.
Q And when you ride in a jeep or bus, you speak Tagalog?
A Yes.
Q And you were well understood by these Tagalog people?

A Yes.
Q And as a matter of fact, you can understand Tagalog?
A Yes,
Q And you can also read Tagalog?
A Yes.
Q You can read?
A Yes, but I do not litem interest to read. TSN, March 29, 1969, pp. 11-12).
All through shout the entire investigation and even at the time appellant A as before Fiscal Paredes, before
whom she subscribed and swore to the truth of an what appeared in her statement, 6 no denunciation of any
sort was made nor levelled by her against the police investigators. Neither was there any complaint aired by
her to the effect that she merely affixed her signatures thereto because of the promise by the police that she
will be released later. We therefore find her aforesaid claim highly incredible and a mere concoction. For why
will the police still resort to such trickery when the very sworn statement given by her proved by its contents
that appellant was indeed very cooperative. In fact, almost all the recitals and narrations appearing in the said
statement were practically repeated by her on the witness stand thus authenticating the truth and veracity of
her declarations contained therein. Moreover, We find said statement replete with details which could not
litem been possibly supplied by the police investigators who litem no previous knowledge of, nor
acquaintance with her and the victim, especially with respect to the circumstances and incidents which
preceded the fatal incident that brought about the death of the latter. We therefore find no error in the trial
court's pronouncement that appellant's sworn statement was voluntarily given by her; that she fully
understood its contents; and that she willingly affixed her signatures thereto.
Well settled is the rule that extrajudicial confession may be regarded as conclusive proof of guilt when taken
without maltreatment or intimidation 7 and may serve as a basis of the declarant's conviction. 8 It is presumed
to be voluntary until the contrary is proven. The burden of proof is upon the person who gave the
confession. 9 That presumption has not been overcome in the instant case.
Indeed the trial court could not be faulted for relying heavily on accused-appellant's sworn statement in
assessing her guhit since it was given shortly after the incident took place. By then, she had yet no time to
concoct any fabrication favorable to her. Shock by the aftermath consequences of her criminal design she
must litem been motivated by no other purpose except to admit the undeniable. On the other hand, when she
took the witness stand, disclaiming any responsibility for the burning of her husband, it was already January
13, 1969 . . . more than five years after the incident and decidedly after she had the benefit of too many
consultations.
That appellant has murder in her heart and meant to do harm to her husband when she went to the latter's
place of work on that fatal night and intended an the consequences of her nefarious act finds clearer
manifestation and added support in her total indifference and seemingly unperturbed concern over the fate
that had befallen the victim . . . her husband . . . especially at times when he needed her most. Being the wife,
she must be the closest to him and the hardest hit by the mishap if she has not authored the same nor
voluntarily participated therein. She was then reasonably expected to come to his succor and alleviate him
from his sufferings. And yet, the records do not show her having seen her husband even once while the latter

lay seriously ill at the hospital hovering between life and death. Neither did she attend his funeral nor was she
ever present during the wake while the victim's remains lay in state. That she was under detention does not
excuse nor justify those glaring and significant omissions. For she could litem asked the court's permission for
any of the enumerated undertakings which we believe would not litem been denied. But she did not even
attempt.
Indeed, the more we scrutinize appellant's alibi and explanation, we become more convinced of the falsity and
incredibility of her assertions. For instance, her claim that her purpose in buying gasoline at so an unholy hour
of the night, past ten o clock in the evening, solely for the purpose of cleaning her shoes which she would
wear in going to church the following Sunday, hardly recommend acceptance. That she dropped at her
husband's place of work also at the middle of the night for no other purpose except to deliver to him gasoline
for his cigarette lighter, is likewise too taxing upon one's credulity . . . more so if we litem to consider the
previous spat she had with the deceased in the morning of that fatal day.
In her vain attempt to exculpate herself, appellant would like Us to believe that her husband died of
pneumonia because the latter drank liquor as shown by the toxicology report indicating presence of alcohol in
the victim's body. Hence, assuming she set her husband on fire, she is not criminally liable for her husband's
death.
We are not persuaded by appellant's aforesaid ratiocination
The claim that the victim drank liquor while confined in the hospital would not suffice to exculpate the
appellant. For as testified by Dr. Reyes, pneumonia could not be caused by taking alcohol. In fact, alcohol,
according to him, unless taken in excessive dosage so as to produce an almost comatose condition would not
cause suffocation nor effect a diminution of the oxygen content of the body. 10 In fine, as correctly pointed
out by the Hon. Solicitor General, the victim's taking of liquor was not an efficient supervening cause of his
death which took place on March 10, 1965, just four days after the burning.
The cause of death as shown by the necropsy report is pneumonia, lobar bilateral. Burns 2' secondary. There is
no question that the burns sustained by the victim as shown by The post-mortem findings immunity about
62% of the victim's entire body. The evidence shows that pneumonia was a mere complication of the burns
sustained. While accepting pneumonia as the immediate cause of death, the court a quo held on to state that
this could not litem resulted had not the victim suffered from second degree burns. It concluded, and rightly
so, that with pneumonia having developed, the burns became as to the cause of death, merely contributory.
We agree.
Appellant's case falls squarely under Art, 4, Par. 1 of the Revised Penal Code which provides:
Art. 4. Criminal Liability. Criminal liability shall be incurred.
1. By any person committing a felony (delito) although the wrongful act done be different from
that which he intended.
the essential requisites of which are: (a) that an intentional felony has been committed; and (b) that the
wrong done to the aggrieved party be the direct, natural and logical consequence of the felony committed by
the offender. 11
The reason for the rule as spelled out in the earlier cases of PP vs. Moldes, 61 Phil. 1, 3 & 4; and PP vs.
Quianzon, 62 Phil. 162, citing 13 RCL 748, 751 is as follows

One who inflicts injury on another is deemed guilty of homicide if the injury contributes
immediately or immediately to the death of such other. The fact that other causes contribute to
the death does not relieve the actor of responsibility. He would still be liable "even if the
deceased might litem recovered if he had taken proper care of himself, or submitted to surgical
operation, or that unskilled or improper treatment aggravated the wound and contributed to
the death, or that death was men." caused by a surgical operation rendered necessary by the
condition of the wound. The principle on which this rule is founded is one of universal
application. It lies at the foundation of criminal jurisprudence. It is that every person is held to
contemplate and be responsible for the natural consequences of his own acts. If a person
inflicts a wound with a deadly weapon in a manner as to put life in jeopardy, and death follows
as a consequence of this felonious and wicked act, it does not alter its nature or diminish its
criminality to prove that other causes cooperated in producing the fatal result. Neglect of the
wound or its unskilled and improper treatment which are themselves consequences of the
criminal act, must in law be deemed to litem been among those which are in contemplation of
the guilty party and for which he must be responsible The rule has its foundation on a wise and
practical policy. A different doctrine would tend to give immunity to crime and to take away
from human life a salutary and essential safeguard. Amidst the conflicting theories of medical
men and the uncertainties attendant upon the treatment of bodily ailments and injuries it
would be easy in many cases of homicide to raise a doubt as to the immediate cause of death,
and thereby open a wide door by which persons guilty of the highest crime might escape
conviction and punishment.
In convicting the accused, the trial court imposed upon her the obligation to indemnify the heirs of the
deceased only in the amount of P12,000.00. That should now be increased to P30,000.00.
WHEREFORE, except as thus modified, the judgment appealed from is hereby AFFIRMED with costs against
appellant.
It appearing however that appellant Valentina Mananquil is now 71 years of age, this Court recommends her
for executive clemency. For the purpose, let His Excellency, President Ferdinand E. Marcos, be furnished with
a copy of this decision thru the Hon. Minister of Justice.
SO ORDERED.
Makasiar (Chairman), Aquino, Abad Santos and Escolin, JJ., concur.
Concepcion, Jr. and Guerrero, JJ., are on leave.

Footnotes
1 Appellant was accused merely of Frustrated Parricide in the original information filed on
March 8, 1965.
2 Pages 44-45, Record.

3 Appellee's Brief, pp. 1 and 2.

4 Pages 4, 5 and 6, Appellant's Brief.
5 Exhibits "A" and "A-1".
6 Exhibits "A" and "A-1".
7 PP vs. Pincalin 102 SCRA 137; PP vs. Carias, 122 SCRA 783.
8 PP vs. Perez, 102 SCRA 313.
9 PP. vs. dela Cruz, 115 SCRA 154.
10 TSN, February 6, 1974, page 30.
11 US vs. Brobst, 14 Phil. 310: US vs. Mallare, 29 Phil. 14.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 39519 November 21, 1991
PEOPLE OF THE PHILIPPINES, petitioner-appellee
vs.
DANIEL PINTO, JR. and NARCISO BUENAFLOR, JR., defendants-appellants.
The Solicitor General for petitioner-appellee.
K.V. Faylona & Associates for defendants-appellants.
FERNAN, C.J.:p
As an aftermath of the mission of the Legazpi City Police Department to serve on Christmas day in 1970 a
search warrant on Francisco Bello who was allegedly training a private army, patrolmen Daniel Pinto, Jr. and
Narciso Buenaflor, Jr. were found guilty beyond reasonable doubt by the then Circuit Criminal Court in said
city, of killing not only Bello but also 9-year-old Richard Tiongson and Rosalio Andes and seriously wounding
Maria Theresa Tiongson. The dispositive portion of the decision of June 13, 1974. 1 reads:
WHEREFORE, the Court finds the accused Narciso Buenaflor, Jr. and Daniel Pinto, Jr. GUILTY
beyond reasonable doubt of crime of:
(a) MURDER in CCC-X-288-Albay, and hereby sentences each of them to suffer
imprisonment for the rest of their lives (Reclusion Perpetua); to indemnify the
heir of Rosalie Andes in the amount of Twenty-five Thousand (P25,000.00)
Pesos, jointly and severally; and to pay the costs;
(b) MURDER in CCC-X-289-Albay, and hereby sentences each of them to suffer
imprisonment for the rest of their lives (Reclusion Perpetua); to indemnify the
heirs of Francisco Bello in the amount of Twenty-five Thousand (P25,000.00)
Pesos, jointly and severally; and to pay the costs;
(c) MURDER in CCC-X-298-Legazpi City, and hereby sentences each of them to
suffer imprisonment for the rest of their lives (Reclusion Perpetua); to indemnify
the heirs of Richard Tiongson in the amount of Twenty-five Thousand
(P25,000.00) Pesos, jointly and severally; and to pay the costs;
(d) FRUSTRATED MURDER in CCC-X-299 Legazpi City, and hereby sentences each
of them to imprisonment of from Six (6) Years and One (1) Day of Prision Mayor
as Minimum, to Twelve (12) Years and One (1) Day of Reclusion Temporal as
Maximum; to indemnify the victim, Maria Theresa Tiongson, in the amount of
Eight Thousand (P8,000.00) Pesos, jointly and severally; and to pay the costs.

In addition to the foregoing the accused are sentenced to suffer perpetual disqualification from
public office.
According to the prosecution, on December 25, 1970, the Legazpi City Police secured from the City Court of
Legazpi a warrant for the search of the house and premises of Francisco Bello in Mariawa, Legazpi City on the
ground that the police had probable cause to believe that Bello illegally possessed a garand rifle, a thompson
submachinegun and two automatic pistols. 2 The police had earlier undertaken a surveillance of Bello on the
basis of information it had received that he was conducting an "obstacle course" or training men for combat
since October, 1970. 3
Upon receipt of the search warrant, the Chief of Police, Dr. Solomon Adornado, 4 called his officers to a
"confidential conference" at the residence of Mayor Gregorio Imperial. Present at the said conference were
the mayor, his secretary, and the officers of the patrol division, secret service and the administration of the
city police. The Chief of Police was assisted by Major Alfredo Molo, head of the intelligence division of the city
police, in briefing the group on how to serve the search warrant and to arrest Bello as the latter had been
identified as the one who shot Salustiano Botin the night before. At the time of the briefing, no warrant of
arrest had yet been issued against Bello. 5
The policemen were divided into three teams and around five members of the Philippine Constabulary (PC)
who were also present were assigned to the different teams. 6 Team 3 was placed under the charge of Sgt.
Salvador de la Paz with a policeman named Luna and appellants Buenaflor and Pinto as members. Wilfredo
Romero was the PC member assigned to the team. 7 Except for Romero and Pinto who were each armed with
a carbine, the policemen of Team 3 each carried a .38 caliber pistol. 8
Loaded in four vehicles, the three teams proceeded from the residence of the Mayor to barrio Homapon
arriving there at around seven o'clock in the evening. The four vehicles met at the junction of Homapon and
the road to Mariawa. They had decided to ride on the way to Mariawa when one of the jeeps bogged down
because of the muddy road. Hence, the three teams had to walk in single file on the right side of the road with
the teams had to walk in single file on the right side of the road with the teams maintaining a distance o
around ten meters between them. 9
Suddenly, Romero noticed the members of his team running. He ran with them and then he heard someone
shout, "Pondo!" (stop). The shout was followed by a shot and then a burst of gunfire. The team had by then
deployed to the right side of the road. When Romero checked the men by shouting the agreed password of
"bayawas" for which the person challenged answered "santol", 10 he found that Buenaflor was 5 meters in
front of him "at the bank of the road", Pinto was two meters to the right of Buenaflor, Sgt. de la Paz was two
meters to his (Romero's) right, Luna who was holding a walkie-talkie was to his left and another policeman
was in front of Luna. 11 When Romero heard the gunburst, he saw "flashes of fire" "just in front" of him or
from the place where Buenaflor was. 12
The area where the team deployed was lower in elevation than the road but Romero heard the rumbling of a
jeep going towards the direction of Homapon when he heard the burst of gunfire and saw the flashes of fire
from the direction of Buenaflor. 13
On the jeep which passed by the deployed policemen were Fr. Felix Cappellan, Mrs. Zenaida Stilianopolous
Tiongson, her six children and the driver. They had just come from a lechonada party in the hacienda in
Mariawa of Mrs. Purificacion Napal Anduiza, the mother of Francisco Bello. Fr. Capellan had celebrated mass
to commemorate the death anniversary of Mrs. Anduiza's father. When Fr. Capellan decided to go back to his
parish, the Anduiza's offered their jeep for his transportation. 14 Seated on the front seat of the "McArthur

type" jeep which had only a canvass top but no cover on the sides and back, 15 were the driver, Mrs. Tiongson
with a child on her lap and Fr. Capellan. 16 Richard Tiongson was seated on the steel seat behind the driver
while his sister Maria Theresa was beside him. 17 The three other children were also seated at the back.
After crossing the creek on their way to Homapon and as the driver "changed to high gear with a
dual", 18 Mrs. Tiongson saw blinking lights some 300 yards ahead. 19 Fearing that there might be "people with
bad intentions" or hold-uppers, Fr. Capellan told the driver to go faster. 20 Then Fr. Capellan heard one shot
and after a few seconds and around 50 meters ahead, there was rapid firing with some of the bullets hitting
the jeep. 21 According to Mrs. Tiongson, the widow of Col. Angel Tiongson of the PC, the rapid firing sounded
"automatic". 22 The firing came from the left rear side of the jeep. 23
Before they were fired upon, Maria Theresa saw a man lying flat on his stomach while holding a gun on the
left side of the road just ahead of the jeep. 24 Through the light of the jeep, Maria Theresa noticed that the
man was wearing a jacket and a hat and he was on the shoulder of the road. 25 After passing the man, the
rapid firing ensued. Richard said "ugh" and fell on the floor of the jeep. Maria Theresa was about to hold
Richard when she felt herself hit at the buttocks. Then they all screamed. 26
The jeep continued its fast uphill climb until it reached a level area and almost fell into a ditch were it not for a
clump of banana plants. The jeep came to a full stop. Fr. Capellan saw three men with flashlights but he could
not distinguish their faces as it was dark and their flashlights were focused on the ground. 27 Mrs. Tiongson
saw a PC jeep and some cars and, believing that one of the cars was that of the Mayor, she called Tia Citang,
the mother of the mayor, at the same time identifying herself.28 She must have managed to take Richard
from the jeep and was cuddling him on the ground near the left rear end of the jeep when she requested Fr.
Capellan to administer extreme unction on Richard. As Fr. Capellan had no holy oil, he gave the boy
absolution. 29
Even after Mrs. Tiongson had identified herself as the widow of Col. Tiongson to the men around, nobody
listened to her appeal for help. When she approached Chief of Police Adornado, she hit him and asked him
why they shot her and her companions. The Chief of Police replied that the shooting was no longer his fault
because Mrs. Tiongson and her companions did not stop when told to do so. She requested the Chief of Police
for a car in which to take Richard to the hospital or for a driver and even for a walkie-talkie so she could talk to
Mayor Imperial but the Chief of Police did not heed her pleas. 30 (TSN, February 9, 1972, pp. 17-22).
A few minutes later, a jeep driven by Fernando Anduiza arrived. Mrs. Tiongson and her children boarded the
jeep. At the intersection of the road to Legazpi City proper and the road to Mariawa, the area was brightly
lighted and armed men ordered them to put their hands up. They were told to alight from the jeep to be
searched but Mrs. Tiongson begged the lieutenant manning the area to let them pass so they could bring her
two children to the hospital. 31
Richard and Maria Theresa were brought to the Sacred Heart Clinic in Legazpi City. Thirteen-year-old Maria
Theresa was treated for a gunshot wound at the "right upper quadrant of the right buttocks." 32 Her pelvis
and abdomen were x-rayed. One of the x-ray plates 33 revealed an oval spot indicating a foreign body in Maria
Theresa's pelvis. The attending physician decided not to extract the foreign body as Maria Theresa was not a
"very good surgical risk".34 The hospital charged P282.90 for Theresa's hospitalization. 35 She was later
brought by an army plane to the PC Station Hospital in Camp Crame, Quezon City for further treatment and
hospitalization 36 but the foreign body was never removed from her pelvic area.
Richard sustained a gunshot wound at the back about the level of the 5th lumbar vertebrae. The bullet
travelled obliquely to the left kidney, the lesser sac, the liver and the right auricle.37 Richard was operated at

the hospital but he died at 8:45 the following morning due to massive hemorrhage caused by the gunshot
wound. 38 When he was autopsied, a lead slug was found embedded in his heart.39 His mother paid
P862.35 40 for his hospitalization and was charged P200 by the church. Mayor Imperial paid P500 to Funeraria
Oro for Richard's burial.41
Meanwhile, according to Chief of Police Adornado, after the shooting incident involving the Tiongsons, the
police pursued their mission to serve the search warrant on Bello. When they reached Bello's residence in
Mariawa, they were met by a "volley of fire." Suddenly, the house was lighted and a certain Escober met him.
Although Bello and his parents, Mr. and Mrs. Anduiza, were not around, the police searched the area and
found a Japanese Springfield rifle, ammunition of a garand rifle, ammunition of a carbine, live ammunition for
a .38 caliber pistol and 380 bullets for an automatic pistol. 42 Thereafter, the Chief of Police declared the
search terminated and the entire searching party left for headquarters. 43 The following day, he issued Special
Order No. 24 which states:
December 26, 1970
To All Concerned:
The following men mentioned below are hereby assigned at Homapon until their mission is
accomplished, effective as of today, December 26, 1970:
1 Sgt. Salvador de la Paz, In-charge
2. Pfc. Carlos Barbin, member
3. Pat. Eduardo Arcinue, member
4. Pat. Juan Luna, member
5. Pat. Daniel Pinto, member
6. Pat. Celedonio Abordo, member
7. Pat. Narciso Buenaflor, member
Report progress of mission any time of day through the radio system. For strict compliance.
(Sgd.)
SOLOMON B.
ADORNADO
Chief of Police
Copy furnished: The Honorable City Mayor, The Patrol Command, LCPD, the OIC and file .44
The mission was to keep peace and order in the specified place and to determine the whereabouts of
Bello.45 It was not necessary to specify the mission in the order itself because the Chief of Police "had a close
understanding with the squad that went to Homapon". 46For a "convenient tactical deployment," Sgt. De la
Paz further divided Team 3 into three groups with patrolmen Buenaflor and Pinto composing Group II.47

At noontime of December 26, 1970, Francisco Bello, more popularly known as Paquito, arrived at the residence
of Inocencia Malbas in sitio Ando, Talahib, Daraga, Albay. He was with Inocencia's brother, Francisco Andes,
Francisco's son Ananias, and Leoncio Mostoles. Rosalio, another son of Francisco, also arrived with the
group. 48Bello requested Inocencia and her husband that he and his group be allowed to spend the night in
Inocencia's house. 49
Inocencia woke up at around 5:00 o'clock in the morning of December 27, 1970. At the sala, on her way from
her room to the kitchen, she saw Bello sleeping alone. From the kitchen, Inocencia went to the balcony
through the sala. On her way back to the kitchen, she noticed that Bello, who was wearing a red shirt and an
underwear, had awakened. Bello opened the window, spat out and went to the balcony. He reentered the sala
and saying that it was cold, Bello put on his clothes and pants. He also wore his jacket. He went back to the
balcony and asked for water. Inocencia's husband gave Bello a glass of water. After gurgling, Bello placed the
glass on the window sill and ask Inocencia's husband for a cup of coffee.50
Inocencia's husband was about to offer Bello a cup of coffee when she heard a successive burst of gunfire.
Bello, who was the balcony facing the copra kiln ("agonan") with his back towards the pili tree, gradually fell to
the floor with his hands above his head. Then there was another burst of gunfire. From the kitchen, Inocencia
rushed to the door from where she saw a man holding a long firearm, whom she later identified as Pinto, near
the pili tree which was around eight meters from where Bello was, and another man, also holding a gun,
crouching near the stairs. 51
Inocencia, with her two-year-old child in her arms, 52 was about to rush to Bello when her husband pulled
her. Just then a man, whom Inocencia identified as Buenaflor, came up the house, pointed a gun at Inocencia
and her husband and told them to lay flat on the floor. The man asked them where the gun was. Inocencia
told him that there was no gun in the house but then, when she looked around, she saw a long firearm with its
muzzle pointed upward leaning against the wall near the door around two meters from where Bello laid flat
on his back. Bello himself had a gun but it was in its holster tucked on his waist. 53 It was Buenaflor who took
both the long firearm and the gun in Bello's holster.54
When Francisco Andes went up the house, he told Inocencia that Rosalio was dead. 55 Inocencia went near
the pili tree where Rosalio's body was, knelt down and asked the man with a long firearm why he killed
Rosalio. The man answered that Rosalio fought back. However, Inocencia did not notice any weapon near
Rosalio's body. 56
Bello's hands and feet were tied together and a bamboo pole was inserted between them so that two men,
one of them being Francisco Andes, could carry the cadaver. 57 Bello died because of "shock secondary to
massive hemorrhage due to multiple gunshot wounds". 58 A former pilot and 28 years old at the time of his
death, Bello sustained a gunshot wound at the left temple, an inch above the highest point of the pinna of the
left ear. The bullet which entered his head through the squamous temporal bone travelled towards the
occipital region down to the floor of the left middle cranial fosa until it reached the base of the tongue.
Bello had three gunshot wounds on his chest. One bullet entered the superior part of the right scapular area
about the level of the third thoracic vertebrae. The bullet travelled to the right inna in a slightly upward
direction making its exit at the lateral part of the right supraclavicular fossa above the clavicle. The second
gunshot wound was at the left side interscapular area. The bullet travelled upwards and to the right fracturing
the 7th rib, entered the lower lobe of the left lung, punctured the pulmonary conus, went through the
junction of the right auricular appendage and the right auricle, the anteromedial side of the pericardium,
grazed the medial surface of the middle lobe of the right lung and exited at the right side of the chest. The
third gunshot wound was below the right nipple. The bullet went to the chest cavity, the lower lobe of the

right lung, the dome of the diaphragm, the right lobe of the liver, the 8th thoracic vertebrae and exited at the
left of the midline at the inferior interscapular area. 59
While Bellos corpse was being autopsied, a slug fell from his jacket. A bullet jacket and lead fragments were
found at the base of his skull and a slug was extracted from the floor of his mouth. 60
Rosalio Andes, 23 years old, also died of shock due to multiple gunshot wounds. A bullet entered his right
temporal area, macerated the brain, fractured both parietal bones and exited at the left parietal bone.
Another bullet entered the left scapular area below the level of the 6th rib, travelled to the dome of the left
diaphragm, the left lobe of the liver, the pancreas, the small intestines, and the perineum below the ramus of
the right pubis. The slug was found at the gluteoperineal junction about 2 inches below the tip of the coccys
and 2 1/2 inches above the gluteal line. A third bullet entered the left knee and exited at the medial side of the
leg. 61
The slugs and parts of bullets which were extracted from the bodies of the victims were turned over to the
National Bureau of Investigation (NBI) on December 29, 1970 by Fiscal Aquilino Bonto for safekeeping
purposes. 62 The empty shells and slugs which both the PC and the Legazpi City police found in Talahib were
also turned over to the NBI 63 in the same manner that the four empty carbine shells 64 found by the PC near
the coconut tree a meter from the shoulder of the road to Mariawa were also turned over to the NBI. 65Also
submitted to the NBI for ballistic examination were twelve Smith & Wesson caliber .38 revolvers, two Smith &
Wesson "paltik" caliber .22, four Tell caliber revolvers, one Bosque automatic pistol caliber .380, four carbine
Inland rifles caliber .30, three US Springfield rifles caliber.30, one Thompson submachine gun caliber .45 and
one Colt automatic pistol caliber.45. 66
Defendants Pinto and Buenaflor both denied having fired at the jeep bearing the Tiongson family.67 Pinto,
who admitted carrying a caliber .30 carbine during the incident, 68 testified that the shooting occurred
because the Tiongsons' jeep "was going towards" them.69
According to Pinto, when they reached Mariawa, it was he who fired one shot in the air. 70 After the search
had been conducted in Bello's premises, Team 3 was instrued by a "superior officer" "to remain and maintain
peace and order in (the) vicinity including Mariawa".71 While he and Buenaflor were patrolling the area, at
around midnight, they "chanced upon a house" wherein Bello and his group were staying. They captured four
of Bello's bodyguards and tied them to a pili tree with the torn shirt of one of the captives.72
At daybreak, Pinto saw Bello smoking at the porch. Buenaflor, who was behind him, called Bello. Then a single
shot coming from the house rang out. It was answered by a burst of fire which Pinto "presumed" came from
Buenaflor. By reflex action, Pinto transferred from the pili tree to a nearby coconut tree. But before he
reached the coconut tree, he saw a man with a bolo in his hand running towards him. As the man was
menacingly near him, Pinto shot him. 73
After a lull in the firing, he went up the house to look for Bello's other companions. He saw the body of Bello
on the porch and "near" it was a garand which he took. He also got Bello's short firearm "from a holster." He
turned over both the garand and the short firearm to Buenaflor. One of the captured persons kicked Bello's
body saying that if not for Bello, his son would not have been killed. Thereafter, the two dead persons were
carried by the captured bodyguards to Mariawa. 74
In Mariawa, Pinto contacted (through the radio) police outpost No. 5 in Banquerohan and two jeeps arrived.
When they reached the junction in Homapon, Major Molo, who was with Fiscal Benito Se, told Pinto to go
back with him to Talahib. Although Pinto warned Major Molo that it would be dangerous to go back because

one of Bello's men had escaped, they nevertheless proceeded to Talahib. With three other policemen, they
arrived there between eight and nine in the morning where they were instructed to "look for evidence
specifically . . . for a thompson." He found in the porch two shells and the others found a hat and a flashlight.
Thereafter, they returned to Mariawa and later, to Legazpi City proper. 75
On cross-examination, Pinto stated that he did not know that they found Bello in an area which was beyond
the jurisdiction of Legazpi City. He admitted that while they were instructed patrol the area, they were also
told to effect the arrest of Bello even if no complaint had been lodged against him. 76 According to Pinto, of
the fifteen bullets in the magazine of his carbine, only two remained. He fired "most" of the thirteen shots
during the "Bello incident". 77
Pinto shot the man later identified as Rosalio Andes when he was at a distance of around three meters.
Rosalio was "face to face" with him when Pinto shot him. As Rosalio did not fall from the first shot, Pinto
continued shooting him. 78 When he went up the porch he saw the garand "lying on the floor" but the gun
tucked on Bello's waist was still in its holster. 79
On the Tiongson incident, Pinto asserted that he did not fire his carbine. 80 When he saw the headlight of the
Tiongsons' jeep, he also saw a flashlight being waved. A little later, he heard a shout ordering the jeep to stop.
Then he heard one shot and immediately after, the volley of fire as the jeep was going towards his direction.
As it passed by him, he heard the jeep's passengers shriek. 81
For his part, Buenaflor declared that during the mission to serve the search warrant on Bello, he carried the
".38 caliber revolver Tel." (sic) which had been issued to him by the Legazpi City Police Department. He did not
fire his gun at the Tiongsons and, "as a matter of fact," he surrendered his firearm for ballistic
examination. 82 In the afternoon of December 26, however, Major Molo issued him a Thompson
submachinegun. 83
While patrolling Homapon, he and Pinto "chanced upon" some persons who told them that they could guide
them to where Bello was. At the place which they later found to be Talahib, they went near a pili tree from
where they saw a house "below." Then he saw a man who turned out to be Mostoles. Buenaflor apprehended
Mostoles because the latter was Bello's bodyguard and he had a .22 caliber firearm with him. He came by
another man with a bolo, named "Banteque" and apprehended him also. Then, from behind the pili tree, Pinto
appeared with yet another man. They waited for a while until another man, who turned out to be Francisco
Andes, came within four meters of him. Buenaflor pointed his submachinegun at him so Andes approached
him. Buenaflor confiscated Andes' .22 caliber firearm. 84
From the group, Buenaflor learned that Bello provided them with firearms and that Bello himself had a pistol
tucked in his holster as well as a garand. He and Pinto then tied the men to the pili tree. Later, he saw a person
in the balcony of the house below and Buenaflor shouted twice: "Paquito, mag-surrender ka!" Then Buenaflor
heard a "a shot coming from the direction of the balcony followed by successive shots." He sought cover
behind the pili tree and, while in a crouching position, fired his submachinegun towards the balcony. Pinto was
then behind him. As Pinto shifted his position while firing his carbine, Buenaflor went down to the "elevated
portion going down to the nipa shack" until he was near the coconut tree. There he found a person lying with
his face down. He later found out that the person was the son of Francisco Andes. 85
After the firing had stopped, Pinto told him that Bello was dead. Pinto then went up the house. Buenaflor
went back to the pili tree, untied the four persons they had captured, and told them to do something so they
could carry the bodies of Bello and (Rosalio) Andes. 86

Like Pinto, on cross-examination, Buenaflor also asserted that he did not fire his gun at the jeep carrying the
Tiongsons. 87 While admitting that the person who led them to Bello had told them that the latter was in
Talahib, Buenaflor did not know that Talahib was a barrio of Daraga, Albay and not of Legazpi City.88 He
reiterated that he shouted at Bello urging him to surrender 89 but he was not able to fire a warning shot or
identify himself as a member of the police force "because after the second shot there was already a burst of
gunfire".90
Buenaflor affirmed that the first shot emanating from the balcony of the house in Talalib which was around
fifteen meters from the pili tree, came from a "high caliber firearm". 91 After they had found out that Bello
was dead, Pinto went up the house. Later, Pinto gave him Bello's 380 automatic pistol and
garand. 92 Although he looked at those firearms, he did not determine whether they had been fired. 93 He
noticed, however, that the magazine of the garand was "intact". 94 Aside from Bello's firearms, Buenaflor and
Pinto confiscated two .22 caliber revolvers and two bolos found on Bello's bodyguards. 95
Buenaflor stated that his Thompson submachinegun had two clips with each clip containing 30 bullets. When
he gave back the firearm to Major Molo, only four bullets were left of the one clip he had used. 96 He
remembered having squeezed twice the trigger of his Thompson submachinegun or automatic rifle in
Talahib.97 His service revolver was still with him then. 98
As a result of this series of events, four separate informations were filed against Pinto and Buenaflor. The
information charging Pinto and Buenaflor for the murder of Andes which was filed on July 26, 1971 reads:
That on or about the 27th day of December, 1970, in sitio Ando, Barrio Talahib, Daraga, Albay
and within the jurisdiction of this Honorable Court the accused, conspiring and confederating
together and mutually helping one another, without any justifiable cause or motive, with intent
to kill, did, then and there, willfully, unlawfully and feloniously, with treachery and evident
premeditation, accused Pat. Narciso Buenaflor, Jr. and Pat. Daniel Pinto, Jr., and by means of a
Cal. 45 Thompson Sub-Machine Gun, SN-213436 and a US Carbin Inland, Cal. 30, SN-5099407,
owned respectively by said accused, shoot one Rosalio Andes, inflicting upon him gunshot
wounds as described in the attached Autopsy Report marked as Annex "A" and being made an
integral part of this Information, thereby causing upon said Rosalio Andes serious and mortal
wounds which led to his instantaneous death.
Contrary to law.
The information charging Pinto and Buenaflor with having murdered Bello contains basically the same
allegations as the above and it was filed on the same date. On August 24, 1971 two other informations were
filed against Pinto and Buenaflor: one for the murder of Richard Tiongson and another for the frustrated
murder of Maria Theresa Tiongson. On arraignment, Pinto and Buenaflor both pleaded not guilty to all the
charges.
After trial, the trial court rendered the aforementioned judgment of conviction. For the killing of Bello and
Andes, the trial court appreciated evident premeditation as a qualifying circilmstance and treachery, nighttime
and use of public position as aggravating circumstances. For the incident involving the Tiongson children, it
considered the crimes as qualified by treachery and aggravated by the use of public position.
Pinto and Buenaflor instituted the instant appeal praying for exoneration mainly on the basis of their claim
that the killings were perpetrated in the course of the performance of their official duties as peace officers in
obedience to the lawful order of their superiors.

In order that the justifying circumstance of fulfillment of a duty under Article 11 of the Revised Penal Code may
be successfully invoked, the defense has to prove that these two requisites are present: (a) the offender acted
in the performance of a duty and (b) the injury or offense committed be the necessary consequence of the due
performance or lawful exercise of such duty. In the absence of the second requisite, the justification becomes
an incomplete one thereby converting it into a mitigating circumstance under Articles 13 and 69 of the same
Code. 99
Admittedly, the appellants and the rest of the police force involved, originally set out to perform a legal duty:
the service of a search warrant on Bello. In the process, however, appellants abused their authority resulting
in unauthorized and unlawful moves and consequences. Armed with only a search warrant and the oral
order to apprehend Bello, they went beyond the ambit of their mission and deprived Bello and two other
persons of their lives.
While the defense presented proofs that Bello had a string of record in the police blotter for misdeeds ranging
from taking the harvest of their hacienda without the permission of his parents to assaulting his stepfather,
and that he was "dangerous while under the influence of liquor", 100 there was no proof that he had been
convicted of any offense or that he was a dangerous fugitive from justice which would warrant a "shoot to-kill"
order from police authorities. Proof of bad moral character of the victim only establishes a probability that he
committed a crime but it certainly cannot be the reason for annihilating him nor may it prevail over facts
proven showing that the same victim had been cold-bloodedly killed. 101 As such, the suspicion that Bello was
maintaining a private army was not a sufficient justification for his being rubbed out without due process of
law.
The police theory that Bello authored the shooting of one Salustiano Botin on Christmas eve is neither a
justification for his arrest without a warrant. It should be observed that while the police had obtained a search
warrant for illegal possession of firearms against Bello even on Christmas day which was supposed to be a
holiday, no such effort was made in securing warrant of arrest for Bello's alleged frustrated killing of Botin. The
improbability of the defense evidence through the testimony of Botin himself that Bello had shot him in the
evening of December 24, 1970 is bolstered by the same testimony showing that while he was shot by Bello in
the presence of the police force who were converging at the junction of Homapon and Mariawa, the same law
enforcers were unable to arrest Bello. Besides the fact that no other eyewitness corroborated Botin's testimony
even in the face of his own admission that Bello had no reason to shoot him, no complaint was ever lodged
against Bello for the alleged shooting. 102
On the other hand, the prosecution, through eyewitness Rogelio Escober, tried to establish that during said
shooting incident the police were looking for Bello at the store of a certain Serrano. 103 Unable to find Bello,
the police, specifically Pinto, mauled Escober while asking him to testify against Bello for allegedly shooting
Botin. 104 The police had focused their vehicles' headlights near the bodega of ex-Mayor Los Baos in their
effort to flush out Bello who, unknown to the police, had earlier left the vicinity. It was when the police fired at
the said bodega that Botin must have been accidentally shot. 105 This story was uncorroborated but if true,
would show the police's dangerous propensity for using otherwise official operations in an unlawful manner.
A propensity for rash judgment was likewise amply shown at the incident involving the Tiongson children. Since
the jeep coming towards them was owned by the Anduizas, the appellants acted obviously in the belief that
Bello was its passenger and posthaste they fired upon it even without any inquiry as to the identity of its
passengers. 106Granting that the police indeed fired a warning shot, sound discretion and restraint dictated
that, there being no responding shots from its passengers after the alleged warning shot and considering the
condition of the road which was not only muddy but uphill, instead of directing aimless gunburst at the jeep,
the most that they could have done was to render the jeep immobile by shooting its tires. That way, they

could have verified the identity of the passengers. As it were, they riddled the jeep with bullets injuring in the
process innocent passengers who were completely unaware of what they were up against.
Appellants' stark denial of firing their guns upon the Tiongson family falls flat in the face of various
circumstantial evidence which point to their culpability. There is the unflinching testimony of Sgt. Romero that
he saw "flashes of fire" from the direction of Buenaflor as the jeep bearing the Tiongsons passed by. Said
testimony was corroborated by that of Rafael Jacob, the PC member of team 2, that while no one in his team
fired his gun, the "sporadic firing" came from team 3 after the first of fire which occurred while the jeep was
"abreast of team 2". 107Even defense witness Mariano Rico, a policeman who led team 1, was "sure" that he
heard gunshots at the moment when "the jeep had just passed team 2". 108
Then there are the four empty .30 caliber carbine shells which were found near the coconut tree where,
according to Romero, Pinto was deployed. While he himself carried a carbine, Romero did not fire it and his
testimony was never contradicted. The four empty shells were compared with the test shells which were fired
from the US carbine, caliber .30 Inland Division, SN-5099407, which, according to the aforequoted information
charging appellant with having killed Andes, was used by Pinto, they were found to have "significant similar
individual characteristics". 109
While it is true that the ballistic report reveals that the lead bullet taken from the body of Richard was fired
from a Smith & Wesson type firearm 110 and Buenaflor was proven to be carrying a .38 caliber Tell revolver,
the findings of expert witnesses or, in this case, the ballistic report pointing to another kind of caliber .38
weapon as the source of Richard's wound only serves as a guide for the courts after considering all the facts of
the case.111 The undisputed fact is that Buenaflor was specifically pointed by Romero as the one who fired his
firearm as the Anduiza jeep bearing the Tiongsons passed by. Inasmuch as no evidence that Romero would
prevaricate to pin responsibility on Buenaflor was ever presented, there is, therefore, no reason to discredit
his testimony. 112
In addition to all these, Buenaflor's motive for wanting to do away with Bello has been established. Such
motive provided a circumstantial evidence leading to the inference that indeed he fired his gun. 113 According
to the unrebutted testimony of Rogelio Escober, an overseer of the Napal hacienda and constant companion
of Bello, on November 1, 1970, Buenaflor and another policeman named Santos Urbana, Jr. borrowed Bello's
jeep on the pretext that they needed it to transfer Moscoso, the suspect in the Perez killing, to the Albay
Police Headquarters. When it was returned, the jeep had bloodstains. Bello and Escober later learned from a
PC officer that the jeep had been used in dumping in Guinobatan the body of Moscoso. Confronted by the PC
officer, Bello admitted that the jeep was borrowed by Buenaflor and Urbina and agreed to execute a sworn
statement on the matter. Consequently, the PC authorities notified Mayor Imperial of the solution of the
Moscoso killing.
Three days later, Escober and Bello met Urbina who warned Bello, "Kit, if you want to give your statement,
just say that I borrowed your jeep for thirty minutes. This is a brotherly advice because something might
happen to you." Bello retorted that he would do what was right and that was to tell the truth. Urbina said that
it was up to Bello but he repeated that he was giving Bello a brotherly warning that something might happen
to him 114 (TSN, August 23, 1973, pp. 4-20). These facts were of course denied by Buenaflor. However, as
between the positive declaration of a prosecution witness and the negative denial of the accused, the former
deserves more credence. 115
All these pieces of circumstantial evidence point to no other inference than that Pinto and Buenaflor fired their
guns in defiance of their superior officer's order only "to find the whereabouts" of Bello 116 and to desist from
using their weapons "without clearance from the Chief of Police". 117 Since there is more than one

circumstance and the facts from which the inferences are derived are proven, the combination of all the
circumstances is such as to produce a conviction beyond reasonable doubt. 118
The fact that the victims were different from the ones the appellants intended to injure cannot save them from
conviction. Aberratio ictus or mistake in the identity of the victim carries the same gravity as when the
accused zeroes in on his intended victim. The main reason behind this conclusion is the fact that the accused
had acted with such a disregard for the life of the victim(s) without checking carefully the latter's identity as
to place himself on the same legal plane as one who kills another willfully, unlawfully and
feloniously. 119 Neither may the fact that the accused made a mistake in killing one man instead of another be
considered a mitigating circumstance. 120
It is not even necessary to pinpoint who between Pinto and Buenaflor actually caused the death of Richard or
the wounding of Maria Theresa in the presence of proof beyond reasonable doubt that they acted in
conspiracy with each other. 121 Prior agreement between the appellants to lull their intended victim is not
essential to prove conspiracy as the same may be inferred from their own acts showing joint purpose and
design. 122 In this case, such unity of purpose and design is shown by the fact that only the two of them fired
their guns when the Anduiza jeep with the Tiongsons passed by. This they did in defiance of the order of their
superior not to shoot unless ordered to do so. Conspiracy having been proved, the guilt or culpability is
imposable on both appellants in equal degrees. 123
The same conspiracy was evident in the killing of Bello and Andes. The appellants' concerted action was shown
by the manner by which they killed the two. In this incident, however, they invoke self-defense as a justifying
circumstance. Evidence at hand, however, do not favor their claim.
Under Article 11 (1) of the Rules of Court, an accused must prove the presence of all the following elements of
said exempting circumstance: (a) unlawful aggression, (b) reasonable necessity of the means employed to
prevent or repel it, and (c) lack of sufficient provocation on the part of the person defending himself. 124 The
presence of unlawful aggression is a condition sine qua non. There can be no self-defense, complete or
incomplete, unless
the victim has committed an unlawful aggression on the person defending himself. 125
In this case, Buenaflor insists that he fired at Bello because, after calling out to him to surrender, his shout was
answered by a gunshot. Pinto corroborates his story but the principal prosecution eyewitness in this incident,
Inocencia Malbas, swears that she heard no such shout to surrender nor a gunshot from Bello's direction
before Bello was fired upon by the appellants. Physical evidence as well as the testimonies of Buenaflor
himself and Pinto show that Inocencia, and not the appellants, was telling the truth.
Rafael Seora, the NBI agent who went to Talahib and the road to Mariawa to investigate as well as to take
pictures, found no bullet marks at the crime scene which would pertain to a .22 caliber "paltik" firearm which
Bello's men allegedly used. 126 As no other "paltik" firearms were recovered from the crime scene other than
the two which Buenaflor confiscated from Mostoles and Francisco Andes, the possibility of said firearms or
one of its kind having been used by Bello's men against the appellant particularly the one who escaped is nil.
Buenaflor claimed that the shot after his call to Bello belonged to a high-powered gun 127 obviously referring
to the firearms recovered from Bello himself. According to Buenaflor however, when he found the rifle, its
magazine was "intact" and he did not manipulate the rifle to know how many of its bullets had been
used. 128 Moreover, if Bello indeed fired a gun, it must be the firearm in his holster and not the garand which
was found a couple of meters from where Bello had fallen. That Bello did not fire any of his two firearms is
buttressed by Pinto's own testimony that Bello was smoking with his back towards them when he was shot at

and that at that moment, he did not see Bello holding a gun. 129 We cannot help, therefore, but conclude that
the defense claim that Buenaflor's call to Bello was answered by a gunshot is but a figment of their
imagination designed for their own exoneration.
Appellants' claim of unlawful aggression on the part of Bello or his men would have been clarified had any of
Bello's men whom they had captured been presented in court. These men, Leoncio Mostoles, Francisco Andes,
Domingo Bantique and Ananias Andes had executed statements before the Legazpi City police to the effect
that they heard Buenaflor's call for Bello to surrender and that Bello fired his gun at the appellants. However,
all four of them later executed statements before the NBI retracting said earlier statements in view of the fact
that the police had threatened them to make the statements favorable to the appellants. 130
As regards the unlawful aggression of Rosalio Andes against Pinto, we find that if we are to believe Pinto, we
have to stamp full credibility on his statement alone. Even Buenaflor admitted that he did not see Rosalio
Andes attack Pinto. 131 Inocencia swore that she did not see any weapon near the fallen Rosalio. Indeed, if
the aggression did occur, Pinto would not have lost time in presenting in court the bolo which Andes
threatened to use on him. But granting that Rosalio had a bolo, Pinto was not justified in inflicting the wounds
sustained by Rosalio because a mere threatening attitude of the victim will not constitute unlawful
aggression. 132 Moreover, Pinto's testimony that Rosalio menacingly approached him with a
bolo after Buenaflor had released a sunburst directed at the house where Bello was, is contrary to human
behavior if not totally ridiculous. On the contrary, by his own admission, Pinto continued firing until he saw
Rosalio fell.
An accused who admits inflicting fatal injury on his victim and invokes self-defense must rely on the strength
of his own evidence and not only on the weakness of that of the prosecution for, even if weak, the
prosecution evidence gains more credibility. 133 Unfortunately, in this case, inspire of the fact that the
prosecution had only one eyewitness to the killing of Bello and Andes, the appellants had not presented
sufficiently strong evidence to shore up their claim of self-defense.
We agree with the trial court that treachery attended the commission of all four crimes in this case. The killing
of Richard Tiongson, Francisco Bello and Rosalio Andes as well as the wounding of Maria Theresa Tiongson
were all so sudden that all of them were left defenseless. This is shown not only by the testimonial evidence
on the commission of the crimes but also by the nature and location of the wounds of all the victims. 134 The
presence of treachery qualifies the killings to murder and the wounding of Maria Theresa to frustrated
murder. Nighttime, however, may not be appreciated as there is no proof that it was specifically sought in the
commission of the crime and therefore we deem it absorbed by treachery.
Evident premeditation has not been proven beyond reasonable doubt in this case but we find that the
appellants indeed took advantage of their public position in perpetrating the crime. Under Article 248 of the
Revised Penal Code, murder is punishable by reclusion temporal in its maximum period to death. There being
no mitigating circumstance to temper the penalty and there being only the aggravating circumstance of taking
advantage of their public office under Article 14 (1) of the said Code, the proper penalty is death. 135 However,
in view the constitutional abolition of the death penalty, the penalty of reclusion perpetua shall be imposed on
the appellants for each of the three murders they committed.
For the wounding of Maria Theresa, the penalty imposable, applying Article 50 of the Revised Penal Code,
isprision mayor maximum to reclusion temporal medium. There being no reason to further lower the penalty
by one degree pursuant to the provision of Article 250, and there being one aggravating circumstance and no
mitigating circumstance, the penalty should be within the range of prision mayor maximum to reclusion
temporal medium. Applying the Indeterminate Sentence Law, 136 the proper penalty for the frustrated

murder of Maria Theresa is six (6) years of prision correccional maximum as minimum to ten (10) years and
one (1) day of prision mayor maximum as maximum. The indemnity of eight thousand pesos imposed by the
lower court should be respected considering that while there is evidence as to the actual amount she spent
while confined at the Sacred Heart Hospital in Legazpi City, there is no proof as to the expenses she incurred
after she was transferred to the Camp Crame Hospital in Quezon City.
As in all cases wherein peace officers are accused, this case creates a feeling of frustration in everyone. The
crimes committed here ought to have no place in this democratic and civilized society. True it is that a police
officer is sometimes left in a quandary when faced with a situation where a decisive but legal action is needed.
But, as this Court said in Calderon vs. People and Court of Appeals (96 Phil. 216, 225 [1954]), "(t)he judgment
and discretion of public officers, in the performance of their duties, must be exercised neither capriciously nor
oppressively, but within reasonable limits. In the absence of a clear and legal provision to the contrary, they
must act in conformity with the dictates of a sound discretion, and with the spirit and purpose of the law."
Police officers must always bear in mind that although they are dealing with criminal elements against whom
society must be protected, these criminals are also human beings with human rights. In the words of then
Justice Moran in theOanis case (Supra):
It is, however, suggested that a notorious criminal "must be taken by storm" without regard to
his right to life which he has by such notoriety already forfeited. We may approve of this
standard of official conduct where the criminal offers resistance or does something which
places his captors in danger of imminent attack. Otherwise, we cannot see how, as in the
present case, the mere fact of notoriety can make the life of a criminal a mere trifle in the
hands of officers of the law. Notoriety rightly supplies a basis for redoubled official alertness an
vigilance; it never can justify precipitate action at the cost of human life. Where, as here, the
precipitate action of the appellants has cost an innocent life and there exist no circumstances
whatsoever warrant action of such character in the mind of a reasonably prudent man,
condemnationnot condonation should be the rule; otherwise we would offer a premium to
crime in the shelter of official actuation.
WHEREFORE, the decision of the lower court is hereby affirmed subject to the modifications that appellants
shall solidarily be liable for the amount of Fifty Thousand (P50,000) for each of the three murders they
committed and, for the frustrated murder of Maria Theresa Tiongson, each of them shall suffer the
indeterminate penalty of from six (6) years of prision correccional maximum as minimum to ten (10) years and
one (1) day of prision mayormaximum as maximum.
Inasmuch as appellant Daniel Pinto, Jr. had been a police officer for only five months 137 when the crimes
were committed, let a copy of this decision be furnished the Office of the President for whatever action may
be proper to temper his penalty. 138
SO ORDERED.
Davide, Jr. and Romero, JJ., concur.
Gutierrez, Jr., J., I concur but agree with Justice Bidin.

Separate Opinions

Bidin, J., concurs:

Since appellants had been sentenced to suffer three (3) life imprisonments, the Indeterminate Sentence Law
should no longer be applied.

# Separate Opinions
Bidin, J., concurs :
Since appellants had been sentenced to suffer three (3) life imprisonments, the Indeterminate Sentence Law
should no longer be applied.
# Footnotes
1 Penned by Judge Ricardo Payumo.
2 Exh. Q.
3 TSN, March 15, 1972, p. 4.
4 He was surprisingly presented as a prosecution witness.
5 Ibid., pp. 6-10.
6 bid., pp. 14-15.
7 TSN, March 13,1972.
8 Ibid., p. 61.
9 Ibid., pp. 62-66.
10 TSN, March 14, 1972, p. 22.
11 TSN, March 13, 1972, pp. 67-70.
12 Ibid., p. 71; Exh. O.
13 Ibid., p. 72.
14 TSN, Feb 9, 1972, p. 6.
15 Ibid., Exh. B.
16 TSN, January 27, 1972, p. 7.

17 TSN, March 13, 1972, p. 42.

18 TSN, January 27, 1972.
19 TSN February 9, 1972, p. 8.
20 TSN, January 27, 1972, p. 7
21 Ibid., p. 8.
22 TSN, February 9, 1972, p. 9.
23 Ibid., p. 10; TSN, January 27, 1972, p. 8; TSN, March 13, 1972, p. 42.
24 TSN, March 13, 1972, pp. 49-50.
25 Ibid., p. 52.
26 Ibid., pp. 42-43.
27 TSN, January 27, 1972, pp. 8-10.
28 TSN, February 9, 1972, pp. 11-13.
29 TSN, January 27, 1972, pp. 8-10.
30 According to Fr. Capellan, Mayor Imperial was in a car parked in the vicinity and he asked Fr.
Capellan why he went to Mariawa when there was a "raid" that night. Fr. Capellan replied that
he said Mass and did not know that there would be a raid. After pointing out to the mayor that
he had lost his right shoe, the mayor jokingly retorted that he owed Fr. Capellan a shoe. The
mayor then sent back Fr. Capellan to his parish in Bangkerohan in the former's car (TSN,
January 27, 1972, pp. 13-14).
31 Ibid., pp. 23-25.
32 Exh. V.
33 Exh. U-2.
34 TSN, October 4, 1973, p. 16.
35 Exh. E.
36 TSN, February 9,1972, pp. 40-41.
37 Exh. K.
38 Exh. C.
39 Exh. M or J (Annex FF).

40 Exh. F.
41 TSN, February 9, 1972, pp. 35-37.
42 TSN, March 15, 1972, pp. 17-20.
43 Ibid., pp. 22-23.
44 Ibid., p. 25.
45 Ibid., pp, 26-27.
46 Ibid., p. 42.
47 Exh. O or R or M, p. 2.
48 TSN, February 11, 1972, p. 17.
49 TSN, February 10, 1972, pp. 4-5.
50 Ibid., pp. 6-10.
51 Ibid., pp. 11-14.
52 TSN, February 11, 1972, p. 11.
53 TSN, February 10, 1972, pp. 23-28.
54 Ibid., p. 28; TSN, February 11, 1972, p. 27.
55 TSN, February 10, 1972, p. 31.
56 TSN, February 11, 1972, pp. 19-20.
57 TSN, February 10, 1972, pp. 29-30.
58 Exh. F (Annex TT).
59 Exh. H (Annex RR).
60 Exh. M of J (Annex FF).
61 Exh. I (Annex SS).
62 Exh, M or J (Annex FF).
63 TSN, January 28,1972, pp. 22-23.
64 RT-1, RT-2, RT-3 & RT-4, Exh. D; TSN, March 13, 1975, pp. 36-37.

65 TSN, April 6, 1972, pp. 28-39.

66 Exh. E or I.
67 TSN, January 16, 1974, p.13; February 12,1974, p. 6.
68 TSN, January 16, 1974, p. 12.
69 Ibid., pp. 11-12.
70 Ibid., p. 15.
71 Ibid., pp. 18-19.
72 Ibid., pp. 19-22.
73 Ibid., pp. 22-25.
74 Ibid., pp. 26-29.
75 Ibid., pp. 30-33.
76 Ibid., pp. 45-47.
77 TSN, January 16,1974 (p.m.), pp. 3-4.
78 Ibid., pp. 5-8.
79 Ibid., pp. 13-14.
80 Ibid., p. 36.
81 Ibid., pp. 37-40.
82 TSN, February 12, 1974, pp. 5-6.
83 Ibid., p. 12.
84 Ibid., pp. 13-15.
85 Ibid., pp. 17-19.
86 Ibid., pp. 19-220.
87 Ibid., p. 27.
88 Ibid., pp. 31-32.
89 Ibid., p. 35.

90 Ibid., p. 46.
91 Ibid., p. 45.
92 Ibid., pp. 59-60.
93 Ibid., pp. 61 & 65.
94 Ibid., p. 64.
95 TSN, February 12, 1974 (p.m.), pp. 22-23.
96 TSN, February 12, 1974, pp. 48-49.
97 TSN, February 12,1974 (p.m.), pp. 27-29.
98 Ibid., p. 35.
99 Aquino, The Revised Penal Code, Vol. II, 1987 ed., p. 200.
100 TSN, December 12, 1973, p. 15.
101 See: People v. Sazon, G.R. No. 89684, September 18,1990; 189 SCRA 700, 711.
102 TSN, October 5, 1973, pp. 33-37; 42; 44-46; 70.
103 TSN, August 23, 1973, p. 29.
104 TSN, September 6, 1973, pp. 22-26.
105 Ibid., pp. 27, 42-43.
106 People v. Oanis, 74 Phil. 257, 262 (1943).
107 TSN, April 5,1972, pp. 16-17, 37.
108 TSN, January 17, 1974, pp. 41-42.
109 Supplementary Ballistics Report No. B-219-171, Exh. E-1 or I-1.
110 Ballistic Report No. B-219-171, Exh. E or I.
111 People v. Aldana, G.R. No. 81817, July 27, 1989,175 SCRA 635.
112 People v. Jutie, G.R. No. 72975, March 31, 1989, 171 SCRA 586.
113 People v. Gallo, G.R. Nos. 70193-96, January 11, 1988, 157 SCRA 17.
114 According to the trial court, Urbana was one of the two policemen accused of murder in
Criminal Cases Nos. CCC-X-165 & X-225 before the said court but both cases were dismissed as

to Urbina died from multiple gunshot wounds sustained in an encounter with elements of the
PC in Legazpi City (Decision, p. 57).
115 People v. Juanga, G.R. No. 83903, August 30, 1990, 189 SCRA 226.
116 TSN, March 15, 1972, p. 26.
117 TSN, December 13, 1973, pp. 8-9.
118 People v. Madriaga IV, G.R. No. 73057, March 8, 1989, 171 SCRA 103 citing Sec. 5, Rule 133,
Rules of Court.
119 Calderon v. People and Court of Appeals, 96 Phil. 216 (1954) citing People v. Canis, 74 Phil.
257 (1943).
120 People v. Gona, 54 Phil. 605 (1930).
121 People v. Espiritu, G.R. No. 80406 November 20, 1990, 191 SCRA 503; People v.
Sazon, supraat pp. 713 and 714; People v. Salcedo, G.R. No. 78774, April 12, 1989, 172 SCRA 78;
People v. Basilan, G.R. No. 66257, June 20,1989,174 SCRA 115.
122 People v. Tachado, 170 SCRA 611.
123 People v. Macalino, G.R. No. 79387, August 31, 1989, 177 SCRA 155.
124 People v. Batas, G.R. Nos. 84277-78, August 2, l989, 176 SCRA 46.
125 People v. Sazon, supra at p. 704 citing People v. Batas, supra.
126 TSN, January 28, 1972, pp. 22-23.
127 TSN, February 12, 1974, p. 45.
128 Ibid., p. 64.
129 TSN, January 16,1970 (p.m.), p. 13.
130 Exhs. S, T, U & V.
131 TSN, February 12,1974, p. 25.
132 Araneta, Jr. v. Court of Appeals, G.R. No. 43537, July 3,1990, 187 SCRA 123,130; People v.
Bayocot, G.R. No. 55285, June 28,1989, 174 SCRA 285.
133 Araneta, Jr. v. Court of Appeals, supra at p. 130, People v. Sazon, supra; People v. Lamosa,
G.R. Nos. 74291-93, May 23, 1989, 173 SCRA 518.
134 People v. Maralit, G.R. No. 71142, September 19, 1988, 165 SCRA 425 citing People v.
Abubakar, G.R. No. 32102, February 10, 1986,141 SCRA 286.

135 Article 64(3), Revised Penal Code.

136 People v. Flores, G.R. No. 71980, March 18, 1991 citing People v. Manalang, G.R. No.
67622, February 9, 1989,170 SCRA 149.
137 He entered the police force on July 22, 1970 (Exh. B).
138 Calderon v. People and Court of Appeals, supra.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. L-1896

February 16, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RAFAEL BALMORES Y CAYA, defendant-appellant.
Felixberto B. Viray for appellant.
Assistant Solicitor General Ruperto Kapunan, Jr. and Solicitor Adolfo Brillantes for appellee.
OZAETA, J.:
Appellant, waiving the right to be assisted by counsel, pleaded guilty to the following information filed against
him in the Court of First Instance of Manila:
The undersigned accuses Rafael Balmores y Caya of attempted estafa through falsification of a security,
committed as follows:
That on or about the 22nd day of September, 1947, in the City of Manila, Philippines, the said accused
did then and there wilfully, unlawfully and feloniously commence the commission of the crime of
estafa through falsification of a security directly by overt acts, to wit; by then and there tearing off at
the bottom in a cross-wise direction a portion of a genuine 1/8 unit Philippine Charity Sweepstakes
ticket thereby removing the true and real unidentified number of same and substituting and writing in
ink at the bottom on the left side of said ticket the figure or number 074000 thus making the said ticket
bear the said number 074000, which is a prize-winning number in the Philippine Charity Sweepstakes
draw last June 29, 1947, and presenting the said ticket so falsified on said date, September 22, 1947, in
the Philippine Charity Sweepstakes Office for the purpose of exchanging the same for the
corresponding cash that said number has won, fraudulently pretending in said office that the said 1/8
unit of a Philippine Charity Sweepstakes ticket is genuine and that he is entitled to the corresponding
amount of P359.55 so won by said ticket in the Philippine Charity Sweepstakes draw on said date, June
29, 1947, but the said accused failed to perform all the acts of execution which would have produce
the crime of estafa through falsification of a security as a consequence by reason of some causes other
than this spontaneous desistance, to wit: one Bayani Miller, an employee to whom the said accused
presented said ticket in the Philippine Charity Sweepstakes Office discovered that the said ticket as
presented by the said accused was falsified and immediately thereafter he called for a policeman who
apprehended and arrested the said accused right then and there.
Contrary to law.
(Sgd.) LORENZO RELOVA
Assistant City Fiscal
and was sentenced by Judge Emilio Pena to suffer not less than 10 years and 1 day of prision mayor and not
more than 12 years and 1 day of reclusion temporal, and to pay a fine of P100 and the costs.
From that sentence he appealed to this court, contending (1) that the facts and (2) that the trial court lacked
jurisdiction to convict him on a plea of guilty because, being illiterate, he was not assisted by counsel.
In support of the first contention, counsel for the appellant argues that there could be so could be no genuine
1/8 unit Philippine Charity Sweepstakes ticket for the June 29, 1947, draw; that this court has judicial notice

that the Philippine Charity Sweepstakes Office issued only four 1/4 units for each ticket for the said draw of
June 29, 1947; that the information does not show that the true and real unidentified number of the ticket
alleged to have been torn was not and could not be 074000; that the substitution and writing in ink of the said
number 074000 was not falsification where the true and real number of the ticket so torn was 074000.
This contention is based on assumption not borne out by the record. The ticket alleged to have been falsified
is before us and it appears to be a 1/8 unit. We cannot take judicial notice of what is not of common
knowledge. If relevant, should have been proved. But if it is true that the Philippine Charity Sweepstakes
Office did not issue 1/8 but only 1/4 units of tickets for the June 29, 1947, draw, that would only strengthen
the theory of the prosecution that the 1/8 unit of a ticket which appellant presented to the Philippine Charity
Sweepstakes Office was spurious. The assumption that the true and real unidentified number of the ticket
alleged to have been torn was the winning number 074000, is likewise not supported by the record. The
information to which appellant pleaded guilty alleged that the appellant removed the true and real
unidentified number of the ticket and substituted and wrote in ink at the bottom on the left side of said ticket
the figure or number 074000. It is obvious that there would have been no need of removal and substitution if
the original number on the ticket was the same as that which appellant wrote in ink in lieu thereof.
The second contention appears to be based on a correct premises but wrong conclusion. The fact that
appellant was illiterate did not deprive the trial court of jurisdiction assisted by counsel. The decision expressly
states that appellant waived the right to be assisted by counsel, and we know of no law against such waiver.
It may be that appellant was either reckless or foolish in believing that a falsification as patent as that which
he admitted to have perpetrated would succeed; but the recklessness and clumsiness of the falsification did
not make the crime impossible within the purview of paragraph 2, article 4, in relation to article 59, of the
Revised Penal Code. Examples of an impossible crime, which formerly was not punishable but is now under
article 59 of the Revised Penal Code, are the following: (1) When one tries to kill another by putting in his soup
a substance which he believes to be arsenic when in fact it is common salt; and (2) when one tries to murder a
corpse. (Guevara, Commentaries on the Revised Penal Code, 4th ed., page 15; decision, Supreme Court of
Spain, November 26, 1879; 12 Jur. Crim., 343.) Judging from the appearance of the falsified ticket in question,
we are not prepared to say that it would have been impossible for the appellant to consummate the crime of
estafa thru falsification of said ticket if the clerk to whom it was presented for the payment had not exercised
due care.
The penalty imposed by article 166 for the forging or falsification of "treasury or bank notes or certificates
or other obligations and securities" is reclusion temporal in its minimum period and a fine not to exceed
P10,000, if the document which has been falsified, counterfeited, or altered is an obligation or security of the
United States or of the Philippine Islands. This being a complex crime of attempted estafa through falsification
of an obligation or security of the Philippines, the penalty should be imposed in its maximum period in
accordance with article 48. Taking into consideration the mitigating circumstance of lack of instruction, and
applying the Indeterminate Sentence Law, the minimum cannot be lower than prision mayor in its maximum
period, which is 10 years and 1 day to 12 years. It results, therefore, that the penalty imposed by the trial
court is correct.
The alteration, or even destruction, of a losing sweepstakes ticket could cause no harm to anyone and would
not constitute a crime were it not for the attempt to cash the ticket so altered as a prize-winning number. So
in the ultimate analysis appellant's real offense was the attempt to commit estafa (punishable with eleven
days of arresto menor); but technically and legally he has to suffer for the serious crime of falsification of a
government obligation. We realize that the penalty is too severe, considering all the circumstances of the

case, but we have no discretion to impose a lower penalty than authorized by law. The exercise of clemency
and not in this court.
We are constrained to affirm the sentence appealed from, with costs against the appellant.
Moran, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes and Torres, JJ., concur.
Separate Opinions
PARAS, J., dissenting:
The accused-appellant, instead of being the victimizer, had become the victim. He was accused of having
falsified a genuine 1/8 unit of the Philippine Charity Sweepstakes ticket for the June, 1947, draw by tearing off
at its bottom in a cross-wise direction a portion, thereby removing the true and unidentified number of said
ticket and substituting and writing in ink at the bottom on the left side the number 074000, thus making said
ticket bear a prize-winning number. He was convicted of attempted estafa thru falsification of an obligation or
security and sentenced to an indeterminate penalty of from 10 years and 1 day of prision mayor 12 years and
1 day ofreclusion temporal, and to pay a fine of P100 plus the costs. He waived the right to be assisted by
counsel and merely pleaded guilty to the information.
The appellant is admittedly an illiterate and, in my opinion, had committed only an impossible crime now
punishable under paragraph 2, article 4, in relation to article 59, of the Revised Penal Code. I say impossible,
because in the way the alleged falsification was done, it was inherently inadequate or ineffective and
according certain to be detected. Stated otherwise, the appellant could not have succeeded in cashing the
ticket. Flor who would cash a ticket which, in the first place, has a missing portion and, in the second place,
contains a number written in ink. Not even boy agents who conduct their trades on street sidewalks, and
much less the employee of the Sweepstakes Office to whom it was presented. As a matter of fact, the
falsification was readily detected by said employee. The crime is just as impossible as passing a counterfeit
paper bill concocted in regular newsprint and in ordinary handwriting.
A doubt also arises from the fact that the ticket is a 1/8 unit, in the face of the contention of attorney for
appellant in this instance that the tickets for the June, 1947, Sweepstakes draw consisted of only four units. Of
course, this may not be a matter of judicial notice, but the point remains that if appellant was assisted by
competent counsel in the trial court, the fact might have been duly proven. It is true that the appellant waived
his right to be assisted by counsel, but we cannot help pointing out that a miscarriage of justice may sometime
result by force of circumstances. In such cases, any capital doubt should be resolved in favor of the accused.
My vote, therefore, is to reverse the appealed judgment and to release the appellant immediately as he has
been in prison since November 11, 1947.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 152589 & 152758

January 31, 2005

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANTONIO MENDOZA Y BUTONES, accused-appellant.
RESOLUTION
PER CURIAM:
Before Us is the Motion for Reconsideration filed by herein accused-appellant of our Decision dated 24
October 2003 in G.R. No. 152589 and No. 152758.1 In said decision, we modified the ruling of the Regional
Trial Court (RTC), Branch 61, Gumaca, Quezon, in Crim. Case No. 6636-G finding accused-appellant guilty of
rape under Articles 266-A and 266-B of the Revised Penal Code and instead, we adjudged him guilty only of
attempted rape. We, however, upheld the ruling of the court a quo with regard to Crim. Case No. 6637-G
finding accused-appellant guilty of incestuous rape of a minor under Art. 266-B of the Revised Penal Code as
amended by Republic Act No. 8353 and for this, we sentenced accused-appellant to suffer the ultimate
penalty of death.
Anent Crim. Case No. 6636-G, accused-appellant submits that our pronouncement that Under these circumstances, while incestuous rape can be rationally ruled out since there is no evidence of the
introduction of the penis of appellant into the aperture or within the pudendum of the vagina of private
complainant, accused-appellant is positive for having an intent to lie with his victim. He is guilty of attempted
rape.
...
Appellant's unclothed being which he rubbed against the torso of his daughter whom he had also stripped of
clothing, his acts of kissing and touching the victim's breasts while the latter was flat on the bed and rendered
purposely unconscious by appellant, evidently demonstrate the intent of appellant to have carnal knowledge
of her against her will.2fails to support our conclusion that he is guilty of attempted rape.1He argues that at
most, he should only be convicted of acts of lasciviousness, defined and punished under Art. 336 of the
Revised Penal Code, as the above-quoted portion of our decision does not establish his intent to have carnal
knowledge with private complainant.
In its Comment dated 15 September 2004, the Office of the Solicitor General (OSG), on behalf of the
government, points to the following portion of private complainant's testimony as the basis for establishing
accused-appellant's intent to lie with the former, thus:
PROSECUTOR MATA:

Q And how were you raped by your father?

A He removed my clothes, Ma'am.<
Q When he removed your clothes, where was your sister?
A She was outside, Ma'am.
Q And after he removed your clothes, what else did he do?
A He placed himself on top of me, Ma'am.
Q When he placed himself on top of you, was he fully clothed or without clothes?
A None, Ma'am.
Q And after he placed himself on top of you, were both of you naked?
A Yes, Ma'am.
Q And what did he do when he was on top of you?
A He kissed me, Ma'am.
Q Aside from kissing you, what else did he do?
A He touched me, Ma'am.
Q Where were you touched?
A On my breast, Ma'am.
Q Where else? What else did he do aside from touching your breast?
A He threatened me, Ma'am.
Q How were you threatened?
A He told me that if I will tell somebody, he will kill us, Ma'am.
Q After he threatened you and he was on top of you, he touched your breast, what did he do next?
You said you were raped. Both of you were naked. He was on top of you. What happened next?
A He boxed me on my stomach, Ma'am.
Q After boxing you on your stomach, what else did he do?
A I do not know already, Ma'am.
Q Why did you not know?

A Because I lost consciousness, Ma'am.

Q You lost consciousness and when you regained consciousness, what did you notice about your body?
A I saw blood, Ma'am.
Q Where did you see blood?
A On my thigh, Ma'am.
Q And where was the blood coming?
A From my vagina, Ma'am.
Q And what did you feel in your vagina?
A It was painful, Ma'am.
Q Was that your first sexual experience?
A Yes, Ma'am.
Q And who caused your vagina to bleed?
A My father, Ma'am.
Q And when you regained consciousness, where was your sister?
A She was at my side, Ma'am.
Q What did she do, if any, when she saw your condition?
A None, Ma'am.
Q How about you? What did you do? I withdraw that question, Your Honor.
Q When you regained consciousness, were you still naked?
A Yes, Ma'am.3
After a thorough review and evaluation of the records of this case, we find no sufficient basis to modify our
earlier decision convicting accused-appellant of attempted rape in Crim. Case No. 6636-G.
There is an attempt to commit rape when the offender commences its commission directly by overt acts but
does not perform all the acts of execution which should produce the felony by reason of some cause or accident
other than his own spontaneous desistance.4 The elements, therefore, of an attempted felony are the
following: (1) the offender commences the commission of the felony directly by overt acts; (2) he does not
perform all the acts of execution which should produce the felony; (3) the offender's act be not stopped by his
own spontaneous desistance; and (4) the non-performance of all acts of execution was due to cause or
accident other than his spontaneous desistance.5

Upon the other hand, Article 366 of the Revised Penal Code states: "(a)ny person who shall commit any act of
lasciviousness upon the other person of either sex, under any of the circumstances mentioned in the
preceding article, shall be punished by prision correccional." The elements of this crime are: (1) that the
offender commits any act of lasciviousness or lewdness; (2) that it is done (a) by using force and intimidation,
or (b) when the offended party is deprived of reason or otherwise unconscious, or (c) when the offended party
is under 12 years of age; and (3) that the offended party is another person of either sex. 6 As explained by an
eminent author of criminal law, rape and acts of lasciviousness have the same nature. There is, however, a
fundamental difference between the two. In rape, there is the intent to lie with a woman whereas this
element is absent in acts of lasciviousness.7
In this case, the series of appalling events which took place on the night of 18 March 1998 inside the humble
home of private complainant and of accused-appellant, establish beyond doubt that the latter intended to
ravish his very own flesh and blood. As vividly narrated by private complainant before the trial court, accusedappellant, taking advantage of the cover of darkness and of the absence of his wife, removed her (private
complainant's) clothing and thereafter placed himself on top of her. Accused-appellant, who was similarly
naked as private complainant, then proceeded to kiss the latter and he likewise touched her breasts until
finally, he rendered private complainant unconscious by boxing her in the stomach.8 These dastardly acts of
accused-appellant constitute "the first or some subsequent step in a direct movement towards the commission
of the offense after the preparations are made."9 Far from being mere obscenity or lewdness, they are
indisputably overt acts executed in order to consummate the crime of rape against the person of private
complainant.
Indeed, had private complaint given a categorical statement that the penis of accused-appellant had in fact
penetrated her vagina or that it had at least touched her labia, we would have definitely affirmed the accusedappellant's conviction for consummated rape in Crim. Case No. 6636-G. Unfortunately, the records are bereft
of any indication to this effect thus, we are constrained to find accused-appellant guilty only of attempted rape
as far as Crim. Case No. 6636-G is concerned lest we obliterate the fine distinction between an attempted and
consummated rape.
Worthy of note also is the fact that when confronted with the above-mentioned circumstances during his turn
at the witness stand, accused-appellant miserably failed to proffer a credible defense on his behalf. All that
accused-appellant managed to do during that time was to deny the accusations hurled against him in the
following manner:
Q Mr. Witness, your daughter Maricar, complained that in the night time of March 18, 1998, while her
mother was not in the house, and you were sleeping there, you raped her, what can you say about
that?
A That is not true.
Q And if it is not true, what is the truth about it[?]
A I was sending my children to school and she always come home late.
Q In what school was she enrolled prior to March 18, 1998?
A At Barangay Malusak, Atimonan, Quezon, sir.

Q Do you know of any reason why your daughter Maricar should file a complaint against you if it is not
true that you raped her on March 18, 1998 at night time?
A According to the person who informed me, my daughter was just using me.
Q And who was that person who informed you that your daughter just accused you?
A Erlinda Rivera, sir.
Q From what place is this Erlinda Rivera?
A From Malusak, Atimonan, Quezon.
Q And what did this Erlinda Rivera tell you about that?
A I was informed by Erlinda Rivera that my daughter was always going with several men.
Q In what place did this Erlinda Rivera tell you that your daughter always go with several men?
A In her house when I went there.
Q When was that if you can still remember?
A I could not exactly recall.
Q Was it when you were already incarcerated or was it before you were incarcerated when Erlinda
Rivera told you about that fact that your daughter was always going with other men?
A She told me that when I was already incarcerated.
Q In what place, was it in the Provincial Jail or where?
A Here in court.10
It is well-settled that denial is essentially the weakest form of defense and it can never overcome an
affirmative testimony particularly when it comes from the mouth of a credible witness. 11 Accused-appellant's
bare assertion that private complainant was just "using" him to allow her to freely frolic with other men,
particularly with a certain Renato Planas, begs the credulity of this Court. This is especially true in the light of
our consistent pronouncement that "no decent and sensible woman will publicly admit being a rape victim and
thus run the risk of public contempt - the dire consequence of a rape charge - unless she is, in fact, a rape
victim."12 More in point is our pronouncement in People v. Canoy,13 to wit:
It is unthinkable for a daughter to accuse her own father, to submit herself for examination of her
most intimate parts, put her life to public scrutiny and expose herself, along with her family, to shame,
pity or even ridicule not just for a simple offense but for a crime so serious that could mean the death
sentence to the very person to whom she owes her life, had she really not have been aggrieved. Nor do
we believe that the victim would fabricate a story of rape simply because she wanted to exact revenge
against her father, appellant herein, for allegedly scolding and maltreating her.14

With regard to Crim. Case No. 6637-G, accused-appellant posits the argument that due to the inconsistencies
in the testimony of private complainant, the prosecution failed to establish his guilt beyond reasonable doubt.
The argument fails to persuade.
This Court will not disturb the findings of facts of trial courts unless there is a showing that it failed to consider
facts and circumstances, which if taken into account, would materially affect the resolution of a case. 15 In the
case at bar, the alleged inconsistencies in private complainant's testimonies pertain to the number of times
when she was raped by accused-appellant and the date when her mother, Leonida Mendoza, actually came
back from San Narciso, Quezon, to their house at Barangay Lakip, Atimonan, Quezon. In her testimony on 29
March 2001, private complainant claimed that her mother returned to their house on 19 March 1998 - the day
after the first incident of rape. On the other hand, Leonida testified that she stayed in San Narciso for one
week.16
Needless to state, these supposed inconsistencies deal with minor matters and should not affect the
genuineness of private complainant's version of how her harrowing experience came to be. They do not deal
with the basic aspects of the who, the how, and the when, of the crime committed. 17 As we have declared
before, "inconsistencies on matters of minor details do not detract from the actual fact of rape." 18 Verily,
private complainant's consistent retelling of the relevant details regarding the violation of her person by her
own father far outweighs the latter's persistent assault on her credibility and candor.
In any case, it is a doctrine in criminal law that minor inconsistencies in testimonies strengthen rather than
weaken the witness' credibility for they eliminate the impression of a rehearsed testimony. Particularly in rape
cases, this court does not expect a rape victim to recall every minute detail that occurred during her horrible
ordeal. As we declared in People v. Abiera,19 "a rape victim cannot push out of her mind the violent attack upon
her chastity but she is nevertheless not expected to remember all the sordid details of that traumatic
experience."20
WHEREFORE, the instant motion for reconsideration is DENIED for lack of merit and our decision dated 24
October 2003 is hereby AFFIRMED.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, AustriaMartinez, Corona, Carpio-Morales, Azcuna, Tinga, Chico-Nazario, and Garcia, JJ., concur.
Callejo, Sr., J., on official leave.

Footnotes
1

Rollo, pp. 151-166.

Rollo, pp. 167-168; emphasis in the original.

Comment, pp. 2-4; TSN, 29 March 2001, pp. 4-5.

Article 6, The Revised Penal Code.

1 L. B. Reyes, The Revised Penal Code, 98 (1981).

People v. Caingat, G.R. No. 137963, 06 February 2002; 376 SCRA 387, citing 2 L. B. Reyes, The Revised
Penal Code 781 (1993).
7

Aquino, Revised Penal Code, Vol. III, p. 412, 1988 edition.

See People of the Philippines v. Alcoreza, G.R. Nos. 135452-53, 05 October 2001, 366 SCRA 655 and
People of the Philippines v. Bugarin, G.R. Nos. 110817-22, 13 June 1997, 273 SCRA 384.
9

People of the Philippines v. Lizada, G.R. Nos. 143468-71, 24 January 2003, 396 SCRA 62, citing People
v. Gibson, 94 Cal. App. 2d. 468.
10

TSN, 18 April 2001, pp. 6-8.

11

People v. Serrano, G.R. No. 137480, 28 February 2001, 353 SCRA 161.

12

People v. Ulili, G.R. No. 103403, 24 August 1993, 225 SCRA 594, citing People v. Paringit, 189 SCRA
478.
13

G.R. Nos. 148139-43, 15 October 2003, 413 SCRA 490.

14

Id. at pp. 498-499.

15

People v. Canoy, G.R. Nos. 148139-43, 15 October 2003, 413 SCRA 490.

16

TSN, 29 March 2001, p. 24.

17

Supra, note 18 at 605.

18

Supra, note 14 at 447.

19

G.R. No. 93947, 21 May 1993, 222 SCRA 378.

20

Id. at 383.

EN BANC

[G. R. No. 149028-30. April 2, 2003]

THE PEOPLE OF THE PHILIPPINES, appellee, vs. ARMANDO CABALLERO, RICARDO CABALLERO, MARCIANO
CABALLERO, JR., and ROBITO CABALLERO, accused.
ARMANDO CABALLERO, RICARDO CABALLERO, and MARCIANO CABALLERO, JR., appellants.
DECISION
CALLEJO, SR., J.:
Before the Court on automatic review is the Decision [1] of the Regional Trial Court of San Carlos City,
Negros Occidental, Branch 57, convicting appellants Armando Caballero, Ricardo Caballero and Marciano
Caballero, Jr. of murder in Criminal Cases Nos. RTC-1217 and RTC-1218 and meting on each of them the
supreme penalty of death and ordering them to pay damages; and of frustrated murder in Criminal Case No.
RTC-1219 and imposing on them the penalty of reclusion perpetua.

The Antecedents
Teresito (Dodong) Mondragon and his family lived in a compound surrounded by a barbed-wire fence at
New Sumakwel, Broce Street, San Carlos City, Negros Occidental. Living in the same compound were Ricardo
Caballero and his family; and Myrna Bawin, the sister of Eugene Tayactac, and her family. Beside the
compound was the house of Leonilo Broce, a nephew of Wilma Broce.
In the afternoon of August 3, 1994, Armando (Baby), Robito (Bebot) and Marciano, Jr. (Jun), all surnamed
Caballero, were having a drinking spree in the house of their brother Ricardo in the Mondragon Compound. At
about 7:00 p.m. of said date, Eugene Tayactac and Arnold Barcuma arrived in the sari-sari store of Wilma
Broce which was across the Mondragon Compound. Eugene had dinner in the store while Arnold proceeded to
the house of Susana Broce, Eugenes girlfriend, for a chat. Susanas house was about 15 meters away from the
store of Wilma. Momentarily, Armando arrived in the store and asked Eugene in an angry tone: Gene mopalit

ka? (Gene, will you buy?). Eugene replied: What is this all about? We dont have any quarrel between
us. Armando left the store but stood by the gate of the barbed-wired fence of the Mondragon Compound.
His brothers Ricardo, Robito and Marciano, Jr. joined him. Ricardo and Robito were armed with knives. When
Wilma told Eugene that she was closing the store already, he stood up and left the store on his way to
Susanas house. At that time, Myrna Bawin, who was standing by the window of their house saw her brother
Eugene going out of the store and proceeding to the house of Susana. She called out to him and advised him
to go home. Myrna then left the window to pacify her crying baby.
As Eugene walked by the gate of the Mondragon Compound, Armando suddenly grabbed Eugene towards
the compound. Eugene resisted. Spontaneously, Ricardo, Marciano, Jr. and Robito joined Armando and
assaulted Eugene. Armando took the wooden pole supporting the clothesline and hit Eugene with it. The
latter tried to parry the blows of the Caballero brothers, to no avail. In the process, Eugene was stabbed three
times. As Eugene was being assaulted, Myrna returned to the window of her house and saw the Caballero
brothers assaulting Eugene. She shouted for help for her hapless brother. Wilma, who witnessed the whole
incident, was shocked to immobility at the sudden turn of events.
From the nearby house of Susana, Arnold saw the commotion and rushed to the scene to pacify the
protagonists. Arnold told the Caballero brothers: Bay, what is the trouble between you and
Eugene? However, Ricardo accosted Arnold and stabbed the latter on the left side of his body. Forthwith,
Robito, Marciano, Jr. and Armando ganged up on Arnold. Two of them stabbed Arnold on his forearm. Arnold
fled for his life and hid under the house of a neighbor.
For his part, Leonilo rushed from his house to where the commotion was. He was, however, met by
Robito who stabbed him on the chest. Wounded, Leonilo retreated and pleaded to his uncle Lucio Broce for
help: Tio, help me because I am hit. The commotion stopped only upon the arrival of Teresito Mondragon
who was able to pacify the Caballero brothers. They all returned to the compound.
In the meantime, Lucio Broce, the uncle of Leonilo brought the injured Eugene, Leonilo and Arnold to the
Planters Hospital for medical treatment. Eugene and Leonilo eventually died from the stab wounds they
sustained.
Dr. Filped A. Maisog performed an autopsy on the cadaver of Eugene. He signed a postmortem report
containing the following findings:
POST-MORTEM EXAMINATION
Name: Eugenio Tayactac, 22 years old, male, single
Address: New Sumakwel, San Carlos City, Neg. Occ.
Place of Incident: New Sumakwel, San Carlos City, Neg. Occ.
Place of Examination: San Carlos City Hospital
Date & Time of Incident: August 3, 1994 @ 8:30 P.M.
Date & Time Examined: August 3, 1994 @ 10:40 P.M.
Post-Mortem Findings:
= Stab wound (L) anterior chest 2 cm. 5th ICS MCL directed postero laterally, lacerating (L) auricle of
the heart, and the (L) pulmonary artery and the left middle lobe of the lungs;

=
=

Stab wound (R) anterior chest 2 cm. long 5th ICS parasternal line directed posteriorly;
Stab wound (R) posterior chest level 7th ICS 2 cm. long directed anteriorly.

CAUSE OF DEATH: Severe Hemorrhage secondary to Multiple Stab wounds with Massive
Hemothorax (L) and Hemopneumothorax (R).[2]
He testified that the stab wounds could have been caused by a sharp-edged single-bladed or doublebladed instrument, or by three instruments.[3]
Dr. Jose Carlos L. Villarante performed an autopsy on the cadaver of Leonilo. He signed a postmortem
report containing the following findings:
POST-MORTEM EXAMINATION
Name: Leonilo Broce, 22 years old, male, married
Address: New Sumakwel, San Carlos City, Neg. Occ.
Place of Incident: New Sumakwel, San Carlos City, Neg. Occ.
Place of Examination: San Carlos City Hospital
Date & Time of Incident: Aug. 3, 1994 @ 8:30 P.M.
Date & Time Examined: Aug. 3, 1994 @ 8:45 P.M.
Post-mortem findings:
=

Stab wound, (R) post chest, about the level of the 6 th and 7th RICS, post. axillary line.

CAUSE OF DEATH: Hypovolemic shock secondary to multiple organ injury.[4]

Dr. Edgardo B. Quisumbing attended to and operated on Arnold Barcuma. He signed a medical certificate
stating that Arnold sustained the following injuries:
=

Lacerated wound 2 cm. (R) forearm middle 3rd

Incised wound 2 inches (L) forearm middle 3rd

=

Stabbed wound, 2 inches in length (L) chest, anterior axillary line at the level of the
7th intercostal space, penetrating thoracic cavity and abdominal cavity.
... [5]

On the witness stand, Dr. Quisumbing testified that the wounds sustained by Arnold could have been
caused by three different sharp-pointed instruments.[6] He further testified that Arnold would have died
because of the stab wound on his chest, were it not for the timely medical intervention.
On August 5, 1994, Armando, Ricardo, Marciano, Jr. and Robito, were charged with Murder for the death
of Leonilo Broce. The Information, docketed as Criminal Case No. RTC 1217 reads:

That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San Carlos City, Negros Occidental,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together
and helping one another, armed with pieces of wood and hunting knives, and with intent to kill, with
treachery and evident premeditation, did, then and there, wilfully, unlawfully and feloniously, with the use of
said weapons, attack, assault and use personal violence upon the person of one LEONILO BROCE, by striking
the latter with the use of pieces of wood and stabbing him, thereby inflicting upon said Leonilo Broce physical
injury described as follows:
= Stabbed wound (R) chest penetrating thoracic cavity.
and which injury caused massive hemorrhage which resulted to the death of Leonilo Broce.
That an aggravating circumstance of abuse of superior strength is attendant in the commission of the offense.
CONTRARY TO LAW.[7]
They were also charged with the same crime for the death of Eugene Tayactac in an Information docketed
as Criminal Case No. RTC-1218, which reads:
That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San Carlos City, Negros Occidental,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together
and helping one another, armed with pieces of wood and hunting knives, and with intent to kill, with
treachery and evident premeditation, did, then and there, wilfully, unlawfully and feloniously, with the use of
said weapons, attack, assault and use personal violence upon the person of one EUGENE TAYACTAC, by
striking the latter with use of pieces of wood and stabbing him thereby inflicting upon said Eugene Tayactac
physical injuries which resulted to the death of the latter.
That an aggravating circumstances of abuse of superior strength is attendant in the commission of the offense.
CONTRARY TO LAW.[8]
Another Information was filed against the Caballero brothers for frustrated murder for the injuries of
Arnold Barcuma. Docketed as Criminal Case No. RTC-1219, it reads:
That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San Carlos City, Negros Occidental,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together
and helping one another, armed with pieces of wood and hunting knives, with intent to kill, with treachery
and evident premeditation, did, then and there, wilfully, unlawfully and feloniously attack, assault and use
personal violence upon the person of one ARNOLD BARCUMA, by striking him with the use of pieces of wood
and stabbing him, thereby inflicting upon the latter physical injuries which would have resulted to the death of
said Arnold Barcuma, thus performing all the acts of execution, which would have produced the crime of
Murder, as a consequence, but nevertheless did not produce it, by reason of causes independent of the will
of the accused that is, the timely medical assistance rendered to said Arnold Barcuma.
That an aggravating circumstance of abuse of superior strength is attendant in the commission of the
offense.[9]
Ricardo, Armando and Marciano, Jr., assisted by counsel, were arraigned on September 15, 1994. They
pleaded not guilty to all the charges. Robito Caballero remained at-large.

Ricardo, Armando and Marciano, Jr. invoked the defenses of denial and alibi. They adduced evidence that
Ricardo was employed as electrician in the Office of the City Engineer of San Carlos City. Armando was a
motor cab driver. Robito resided in H.C. Rigor Street, San Carlos City while Marciano, Jr. was a resident of Don
Juan Subdivision, San Carlos City and was employed with the Victorias Milling Corporation.
On August 3, 1994, at 8:00 a.m., Robito left San Carlos City and went to Bacolod City. Armando went to
the house of his brother Ricardo to help in the construction of the latters house and to take care of Ricardos
fighting cocks while he was in his office. Ricardo arrived home at 8:00 p.m. and had dinner with his family and
Armando. Momentarily, their sister Mila and their younger brother Marciano, Jr. arrived in the house of
Ricardo. Marciano, Jr. allegedly was mauled by a group of men and sustained an abrasion, a contusion and
swelling of the left side of his face. Ricardo and Armando brought their brother Marciano, Jr. to the hospital
for treatment. On August 4, 1994, Marciano, Jr. was treated for:
=

Linear abrasion (L) scapula region;

Contusion (R) lower lip lateral side;

Swelling left face.

No. of days of healing: 5-7 days barring complication.[10]

Ricardo, Armando and Marciano, Jr. denied killing Eugene and assaulting Arnold. They also denied having
any altercation with the victims. They also denied stabbing Leonilo. They had no idea why Wilma, Arnold and
Myrna would implicate them for the deaths of Leonilo and Eugene and for the injuries of Arnold.
After due proceedings, the trial court rendered judgment on May 7, 2001 finding all the three accused,
now appellants guilty beyond reasonable doubt as principals of the crimes charged, the decretal portion of
which reads:
WHEREFORE, accused Armando Caballero, alias Baby, Ricardo Caballero, alias Ricky and Marciano
Caballero, Jr., alias Jun, having been found GUILTY beyond reasonable doubt of the offenses charged them
as principals, are hereby sentenced to suffer:
1. In Criminal Case No. RTC-1217 for the murder of Leonilo Broce, there being no mitigating circumstance
present, with the attendant aggravating circumstances of treachery and abuse of superior strength, the
maximum penalty of death and to pay the heirs of Leonilo Broce the sum of P75,000.00 as indemnity;
2. In Criminal Case No. RTC-1218, for the murder of Eugene or Eugenio Tayactac, there being no mitigating
circumstance present, with the attendant aggravating circumstances of treachery and abuse of superior
strength, the maximum penalty of death; and to pay the heirs of Eugene Tayactac the sum of P75,000.00 as
indemnity; and
3. In Criminal Case No. RTC-1219, for Frustrated Murder, for having seriously inflicted injuries upon the
person of Arnold Barcuma which nearly resulted to his death, there being no mitigating circumstance present,
an imprisonment of twelve (12) years, as minimum, to seventeen (17) years, four (4) months and one (1) day,
with no award as to damages, no evidence having been introduced to establish, the same; and
4. To pay the costs in all three (3) cases.
SO ORDERED.[11]

In convicting the accused, the trial court found that all of them conspired to kill Eugene and Leonilo and
cause injuries to Arnold. While the trial court stated that it was only appellant Armando who stabbed Eugene,
and only the accused Robito who stabbed Leonilo, however, it concluded that all of them were equally liable
for the deaths of Leonilo and Eugene and for the injuries of Arnold.
In their Brief, the accused, now appellants assail the decision of the trial court contending that:
I
THE TRIAL COURT ERRED IN NOT ACQUITTING ACCUSED-APPELLANTS IN CRIMINAL CASES NOS. 1217-1219
DESPITE THE FACT THAT THEIR GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.
II
THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE AGGRAVATING CIRCUMSTANCES OF TREACHERY
AND ABUSE OF SUPERIOR STRENGTH ON THE ASSUMPTION THAT INDEED ACCUSED-APPELLANTS KILLED THE
VICTIMS.
III
THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH PENALTY UPON ACCUSED-APPELLANTS ON THE
ASSUMPTION THAT INDEED THEY KILLED THE VICTIMS.[12]
The Court will delve into and resolve the first two assignments of errors.
The appellants aver that the prosecution failed to prove beyond reasonable doubt their respective guilt
for the deaths of Eugene and Leonilo and for the injuries sustained by Arnold. They assert that the trial court
committed reversible error in rejecting their defenses of denial and alibi. They claim that at the time of the
incident they were in the San Carlos Hospital for the treatment of the injuries of appellant Marciano, Jr.
The appellants are partly correct.
The trial court correctly found that all the appellants conspired to kill Eugene and assault Arnold; hence,
they are criminally liable for the death of Eugene and for the injuries sustained by Arnold. Article 8 of the
Revised Penal Code provides that there is conspiracy when two or more persons agree to commit a felony and
decide to commit it. Conspiracy is always predominantly mental in composition because it consists primarily
of a meeting of minds and intent.[13] Conspiracy must be proved with the same quantum of evidence as the
crime itself, that is, by proof beyond reasonable doubt.[14] However, direct proof is not required. Conspiracy
may be proved by circumstantial evidence. Conspiracy may be proved through the collective acts of the
accused, before, during and after the commission of a felony, all the accused aiming at the same object, one
performing one part and another performing another for the attainment of the same objective, their acts
though apparently independent were in fact concerted and cooperative, indicating closeness of personal
association, concerted action and concurrence of sentiments.[15] The overt act or acts of the accused may
consist of active participation in the actual commission of the crime itself or may consist of moral assistance to
his co-conspirators by moving them to execute or implement the criminal plan. [16] Direct proof of a person in
agreement to commit a crime is not necessary. It is enough that at the time of the commission of a crime, all
the malefactors had the same purpose and were united in their execution.[17] Once established, all the
conspirators are criminally liable as co-principals regardless of the degree of participation of each of them for
in contemplation of the law, the act of one is the act of all. [18]
Criminal conspiracy must always be founded on facts, not on mere inferences, conjectures and
presumptions.[19] Mere knowledge, acquiescence to or approval of the act without cooperation or agreement

to cooperate, is not enough to constitute one party to a conspiracy absent the intentional participation in the
act with a view to the furtherance of the common objective and purpose.[20] Moreover, one is not criminally
liable for his act done outside the contemplation of the conspirators. Co-conspirators are criminally liable only
for acts done pursuant to the conspiring on how and what are the necessary and logic consequence of the
intended crime.[21]
In this case, when appellant Armando asked Eugene at the store of Wilma whether the latter was going to
buy something from the store, Eugene was peeved and remonstrated that he and Armando had no quarrel
between them. Appellant Armando was likewise irked at the reaction of Eugene because from the store,
appellant Armando stationed himself by the gate of the Mondragon Compound near the sari-sari store of
Wilma. Appellants Ricardo, Marciano, Jr. and Robito joined their brother, appellant Armando at the
gate. Appellant Ricardo and accused Robito were armed with knives. When Eugene passed by the gate to the
compound, appellant Armando pulled Eugene to the gate but when the latter resisted, all the appellants
ganged up on Eugene. Appellant Armando took the wooden support of the clothesline and hit Eugene with
it. Eugene was stabbed three times on his chest even as he tried to parry the thrusts. When Arnold rushed to
the situs criminis to pacify the appellants and accused Robito, appellant Ricardo stabbed him on the left side of
his body. The other appellants and accused Robito joined appellant Ricardo and ganged up on Arnold. They
stabbed Arnold anew twice on his forearm. Teresito Mondragon, the father-in-law of appellant Ricardo
intervened and forthwith, all the appellants, including accused Robito returned to the Mondragon Compound.
Patently, all the appellants by their simultaneous collective acts before and after the commission of the crimes
were united in one common objective, to kill Eugene, and cause injuries to Arnold for trying to intervene and
prevent bloodshed. Hence, all the appellants are criminally liable for the death of Eugene and for the injuries
of Arnold. It does not matter who among the appellants stabbed Eugene or inflicted injuries on Arnold. The
act of one is the act of the others.
However, for the death of Leonilo, the Court believes that the appellants are not criminally liable. The
prosecution failed to adduce evidence that the appellants and the accused Robito conspired to kill
Leonilo. The appellants did not actually see Leonilo rushing out from his house to the situs criminis. They had
no foreknowledge that the accused Robito would stab Leonilo. There was no evidence presented by the
prosecution to prove that all the appellants assisted the accused Robito in killing Leonilo. It must be recalled
that Leonilo rushed out of his house when he saw the commotion, with the intention of aiding the victim or
pacifying the protagonists. He was, however, stopped by accused Robito who suddenly stabbed him on the
chest. Leonilo retreated and asked for help. Wilma Broce testified that only the accused Robito stabbed
Leonilo:
Q After that, what happened next?
A

Leonilo Broce came out of his house.

Q Where is the house of Leonilo Broce?

A

Still located at Sumakwel.

Q In that case, the very house where Eugene Tayaktak leaned on when he was ganged up by the
four?
A

Yes.

Q What happened after that?

A

When he came out from the house and saw that it was Eugene Tayaktak, he proceeded to
approach them but he was not able to approach them because he was met by Robit Bebot
Caballero and stabbed by Robito Caballero.

Q Was LeoniloBroce (sic) hit when he was stabbed by Robito Caballero?

A

Yes. He immediately ran back and said: Tio, help me because I am hit.

INTERPRETERS (observation)
Witness demonstrating by holding her left armpit.
Q Was Eugene Tayaktak able to escape from the attach (sic) of the Caballero brothers?
A

Not (sic).

Q Now what happened to Eugene Tayaktak?

A

He appeared very weak and he was staggering.

Q Do you know where Eugene Tayaktak now?

A

Already dead.

Q What happened to Leonilo Broce, where is he now?

A

The two of them were (sic) already dead.

Q Now, when did the trouble stop if it stopped?

A

It stopped when Dodong Mondragon arrived.

Q What did the accused do after the trouble was stopped?

A

They went inside the compound of his (sic) father.

Q What happened next?

A

Nothing happened. Both of them were brought to the hospital.[22]

In sum, the trial court committed reversible error in convicting the appellants of murder for the death of
Leonilo. As this Court held in People v. Flora:[23]
However, we cannot find Edwin Flora similarly responsible for the death of Emerita Roma and the injury of
Flor Espinas. The evidence only shows conspiracy to kill Ireneo Gallarte and no one else. For acts done
outside the contemplation of the conspirators only the actual perpetrators are liable. In People v. De la
Cerna, 21 SCRA 569, 570 (1967), we held:
... And the rule has always been that co-conspirators are liable only for acts done pursuant to the
conspiracy. For other acts done outside the contemplation of the co-conspirators or which are not the
necessary and logical consequence of the intended crime, only the actual perpetrators are liable. Here, only
Serapio killed (sic) Casiano Cabizares. The latter was not even going to the aid of his father Rafael but was
fleeing away when shot.
To conclude, appellant Edwin Flora is guilty beyond reasonable doubt only of the murder of Ireneo
Gallarte. He has no liability for the death of Emerita Roma nor the injuries of Flor Espinas caused by his coaccused Hermogenes Flora.

Crimes Committed by Appellants

In Criminal Case No. RTC-1218, the appellants are guilty as co-principals by direct participation of murder,
qualified by treachery. In order that treachery may be considered as a qualifying circumstance, the
prosecution is burdened to prove that:
.... (1) the employment of means of execution that give the person attacked no opportunity to defend himself
or to retaliate; and (2) the means of execution was deliberately or consciously adopted.[24]
Even a frontal attack is treacherous if it is sudden and the victim is unarmed. The essence of treachery is a
swift and unexpected attack on the unarmed victim.[25]
In this case, Eugene was unarmed. He had no inkling that he would be waylaid as he sauntered on his way
to his girlfriend Susanas house. On the other hand, appellant Armando was armed with a wooden pole while
appellant Ricardo and accused Robito were armed with knives. The attack on the hapless Eugene was swift
and unannounced. Undeniably, the appellants killed Eugene with treachery.
In Criminal Case No. RTC-1219, the appellants are guilty of frustrated murder under Article 248 in relation
to Article 6, first paragraph of the Revised Penal Code which reads:
A felony is consummated when all the elements necessary for its execution and accomplishment are present;
and it is frustrated when the offender performs all the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the
perpetrator.
The essential elements of a frustrated felony are as follows:
Elements:
1.

The offender performs all the acts of execution;

2.

All the acts performed would produce the felony as a consequence;

3.

But the felony is not produced;

4.

By reason of causes independent of the will of the perpetrator.[26]

In the leading case of United States v. Eduave,[27] Justice Moreland, speaking for the Court, distinguished
an attempted from frustrated felony. He said that to be an attempted crime the purpose of the offender must
be thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment
when he has performed all the acts which should produce the crime as a consequence, which act it is his
intention to perform.
The subjective phase in the commission of a crime is that portion of the acts constituting the crime
included between the act which begins the commission of the crime and thelast act performed by the
offender which, with prior acts, should result in the consummated crime. Thereafter, the phase is objective.
In case of an attempted crime, the offender never passes the subjective phase in the commission of the
crime. The offender does not arrive at the point of performing all of the acts of execution which should
produce the crime. He is stopped short of that point by some cause apart from his voluntary desistance.
On the other hand, a crime is frustrated when the offender has performed all the acts of execution which
should result in the consummation of the crime. The offender has passed the subjective phase in the
commission of the crime. Subjectively, the crime is complete. Nothing interrupted the offender while passing
through the subjective phase. He did all that is necessary to consummate the crime. However, the crime is not

consummated by reason of the intervention of causes independent of the will of the offender. In homicide
cases, the offender is said to have performed all the acts of execution if the wound inflicted on the victim is
mortal and could cause the death of the victim barring medical intervention or attendance. [28]
If one inflicts physical injuries on another but the latter survives, the crime committed is either
consummated physical injuries, if the offender had no intention to kill the victim or frustrated or attempted
homicide or frustrated murder or attempted murder if the offender intends to kill the victim. Intent to kill
may be proved by evidence of: (a) motive; (b) the nature or number of weapons used in the commission of
the crime; (c) the nature and number of wounds inflicted on the victim; (d) the manner the crime was
committed; and (e) words uttered by the offender at the time the injuries are inflicted by him on the victim.
In this case, appellant Armando was armed with a wooden pole. Appellant Ricardo and accused Robito
used knives. Dr. Quisumbing, who attended to and operated on Arnold, testified that the stab wound
sustained by Arnold on the left side of his body was mortal and could have caused his death were it not for the
timely and effective medical intervention:
Q And how about the size and the depth of the wounds and how big is each wound and how deep.
A

The first wound is 2 cm. and the 2nd is about 2 inches and the 3rd is 2 inches in the left,
penetrating the chest near the thorax along the lateral line.

Q So, aside from the 3rd wound there are wounds which are not really very serious?
A

As I said before, the most serious is the 3rd wound.

Q So even without the other wounds the 3rd wound - - it could be the cause of the death of the
victim?
A

Yes, Sir.[29]

It cannot be denied that the appellants had the intention to kill Arnold. The appellants performed all the
acts of execution but the crime was not consummated because of the timely medical intervention.
Treachery attended the stabbing of Arnold because he was unarmed and the attack on him was swift and
sudden. He had no means and there was no time for him to defend himself. In sum, the appellants are guilty
of frustrated murder.
The appellants denial of the crimes charged in Criminal Case Nos. RTC-1218 and RTC-1219 cannot prevail
over Wilmas and Arnolds positive and straightforward testimonies that the appellants killed Eugene and
stabbed Arnold. Moreover, Wilma and Arnold had no motive to falsely implicate the appellants for the said
crimes; hence, their testimony must be accorded full probative weight.[30]
Equally barren of merit is appellants defense of alibi. Alibi as a defense is inherently weak for it is easy to
fabricate and difficult to disprove. To merit approbation, the appellants were burdened to prove with clear
and convincing evidence that at the time the crimes were committed, they were in a place other than
the situs of the crimes such that it was physically impossible for them to have committed said crimes. [31] The
appellants dismally failed in this respect. They testified that they were at the house of appellant Ricardo,
which was conveniently near the place where Eugene was killed and Arnold was assaulted. Moreover, the
records show that Marciano, Jr. was treated for his superficial injuries on August 4, 1996, a day after the
incident. This belies the claim of appellants Ricardo and Armando that they were allegedly in the hospital at
the time of the incident.

Penalties Imposable on Appellants

The trial court imposed the death penalty on appellants in Criminal Case No. RTC-1218 on its finding that
treachery and abuse of superior strength were attendant in the killing of Eugene. The Solicitor General does
not agree with the trial court and contends that abuse of superior strength was absorbed by treachery; hence,
should not be considered as a separate aggravating circumstance in the imposition of the penalty on the
appellants. The Court agrees with the Solicitor General. Abuse of superior strength, concurring with treachery
is absorbed by treachery.[32]
The penalty for murder under Article 248 of the Revised Penal Code, as amended by Republic Act 7659,
is reclusion perpetua to death. Since aside from the qualified circumstance of treachery, no other modifying
circumstance was attendant in the commission of the crime, the proper penalty for the crime is reclusion
perpetua conformably with Article 63 of the Revised Penal Code.
In Criminal Case No. RTC-1219, for frustrated murder, the Solicitor General contends that the
indeterminate penalty of from 12 years of reclusion temporal as minimum, to 17 years, 4 months and 1 day
of reclusion temporal as maximum, imposed on the appellants is not correct. The Court agrees with the
Solicitor General. The penalty for frustrated murder is one degree lower than reclusion perpetua to death,
which is reclusion temporal.[33] The latter penalty has a range of 12 years and 1 day to 20 years. The maximum
of the indeterminate penalty should be taken from reclusion temporal, the penalty for the crime taking into
account any modifying circumstances in the commission of the crime. The minimum of the indeterminate
penalty shall be taken from the full range of prision mayor which is one degree lower than reclusion
temporal. Since there is no modifying circumstance in the commission of frustrated murder, the appellants
should be meted an indeterminate penalty of from nine (9) years and four (4) months of prision mayor in its
medium period as minimum to seventeen (17) years and four (4) months of reclusion temporal in its medium
period, as maximum.

Civil Liabilities of Appellants

The trial court ordered the appellants in Criminal Case No. RTC-1218 to pay in solidum the heirs of the
victim Eugene Tayactac, the amount of P75,000 by way of indemnity. The trial court did not award moral
damages to said heirs. This is erroneous. Since the penalty imposed on the appellants is reclusion perpetua,
the civil indemnity should be onlyP50,000. The heirs of the victim should also be awarded the amount
of P50,000 as moral damages.[34]
In Criminal Case No. RTC-1219, the trial court did not award moral damages to the victim Arnold Barcuma
on its finding that the prosecution failed to adduce any evidence to prove said damages. The Court disagrees
with the trial court. The victim Arnold Barcuma himself testified on his injuries.[35] He is entitled to moral
damages in the amount of P25,000.[36] Having suffered injuries and undergone medical treatment he is, as well
entitled to actual damages, which in the absence of evidence would, nevertheless, entitle him to an award of
temperate or moderate damages, herein fixed at P10,000.

The Verdict of the Court

IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of San Carlos City (Negros
Occidental), Branch 57, in Criminal Cases Nos. RTC-1217 up to RTC-1219 is AFFIRMED with the following
MODIFICATIONS:

1. In Criminal Case No. RTC-1217, the Court, finding the appellants not guilty of the crime charged for
failure of the prosecution to prove their guilt beyond reasonable doubt, REVERSES the judgment of
the trial court and ACQUITS them of the said charge.
2. In Criminal Case No. RTC-1218, the appellants are found guilty beyond reasonable doubt of murder
under Article 248 of the Revised Penal Code, qualified by treachery, and are sentenced to suffer
the penalty of reclusion perpetua and ordered to pay in solidum the heirs of the victim Eugene
Tayactac, the amounts of P50,000 as civil indemnity and P50,000 as moral damages.
3. In Criminal Case No. RTC-1219, the appellants are found guilty beyond reasonable doubt of
frustrated murder under Article 248 in relation to Article 6, first paragraph of the Revised Penal
Code and are hereby sentenced to suffer an indeterminate penalty of from nine (9) years and four
(4) months of prision mayor in its medium period, as minimum, to seventeen (17) years and four
(4) months of reclusion temporal in its medium period, as maximum. The appellants are hereby
ordered to pay in solidum to the victim Arnold Barcuma the amount of P25,000 as moral damages
and P10,000 as temperate or moderate damages.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, andAzcuna, JJ., concur.

[1]

Penned by Acting Presiding Judge Roberto S. Javellana.

[2]

Records, Criminal Case No. RTC-1218, p. 8.

[3]

TSN, December 5, 1996, pp. 5-6 & 20.

[4]

Records, Criminal Case No. RTC-1217, p. 8.

[5]

Id., at 202.

[6]

TSN, December 8, 1996, p. 8.

[7]

Id., at 1-2.

[8]

Records, Criminal Case No. RTC-1218, p. 1.

[9]

Id., at 403-404.

[10]

Records, Criminal Case No. RTC 1217, p. 387.

[11]

Id., at 415-416.

[12]

Rollo, pp. 68-69.

[13]

People v. Medina, 292 SCRA 436 (1998).

[14]

Fernandez v. People, 341 SCRA 277 (2000).

[15]

See note 13, supra.

[16]

People v. Ponce, 341 SCRA 352 (2000).

[17]

People v. Sualog, 344 SCRA 690 (2000); People v. Buluran, 325 SCRA 476 (2000).

[18]

See note 16, supra.

[19]

People v. Campos, 202 SCRA 387 (1991).

[20]

People v. Bragaes, 203 SCRA 555, (1991).

[21]

People v. Flora, 334 SCRA 262 (2000).

[22]

TSN, September 26, 1995, pp. 15-16.

[23]

See note 21, supra.

[24]

People v. Azugue, 268 SCRA 711 (1997).

[25]

People v. Floro, 316 SCRA 304 (1999).

[26]

REYES, REVISED PENAL CODE, 1998 ed., Vol. I, p. 99.

[27]

36 Phil. 209.

[28]

People v. Maguikay, 237 SCRA 587 (1994); People v. Sumalpong, et al., 284 SCRA 464 (1998).

[29]

TSN, December 5, 1996, pp. 9-10.

[30]

People v. Milliam, 324 SCRA 155 (2000).

[31]

People v. Blanco, 324 SCRA 280 (2000).

[32]

People v. Riglos, 339 SCRA 562 (2000).

[33]

REVISED PENAL CODE, Article 61, par. 2.

[34]

People v. Marlon Delim, et al., G.R. No. 142773, January 28, 2003.

[35]

TSN, July 19, 1995, pp. 22-25; TSN, March 11, 1997, pp. 7-9, 26-28.

[36]

NEW CIVIL CODE, Article 2219, par. 1.

FIRST DIVISION

[G.R. No. 99838. October 23, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ERNESTO ENRIQUEZ y ROSALES and WILFREDO ROSALES
y YUCOT, accused-appellants.
DECISION
VITUG, J.:
Ernesto Enriquez y Rosales and Wilfredo Rosales y Yucot were charged with having violated Section 4,
Article II, of Republic Act ("R.A.") No. 6425 (Dangerous Drugs Act of 1972), as amended, in an information that
read:
That on or about June 5, 1990, in the City of Manila, Philippines, the said accused, conspiring and
confederating together and mutually helping each other, not being authorized by law to sell, deliver, give
away to another or distribute any prohibited drug, did then and there wilfully and unlawfully sell or offer for
sale six (6) kgrms of dried flowering tops of marijuana stuffed in a plastic sack, which is a prohibited drug.
"Contrary to law.[1]
The antecedent facts leading to the filing of the information, according to the prosecution, are hereunder
narrated.
At around eleven oclock in the morning of 05 June 1990, Sgt. Pedro I. Cerrillo, Jr., the Officer-in-Charge of
the Intelligence and Drug Law Enforcement Unit of Police Station No. 2 (located in Tondo, Manila) of the
Western Police District, was in the vicinity of North Harbor routinely scouting for information from his civilian
informants. Near the gate fronting Pier 10, Danny, a porter and member of the Anti-Drug Abuse Movement
("ADAM"), approached and informed Sgt. Cerrillo that a free-lance porter at the North Harbor, a.k.a. Bulag,
was looking for prospective buyers of marijuana. Sgt. Cerrillo instructed Danny to say that he had come across
a couple who would be interested in buying the prohibited drug. Sgt. Cerrillo had then in mind a possible buybust operation.
The buy-bust plan was broached to Patrolwoman Shirley Maramot who was manning Police Station No.
2. Fellow police officers were at the time on duty at the U.S. Embassy where a "rally" by certain activists was
in progress. Using his own owner-type jeep, Sgt. Cerrillo repaired to his house at 727 Moriones St., Tondo,
Manila, to procure ten (10) pieces of one hundred peso bills[2] to be used in the projected buy-bust
operation.[3] He thereupon had, at a store near the police station, xerox copies made of the bills that can
readily show the serial numbers which he had also noted down in his personal notebook. [4]

Back at the police station, Sgt. Cerrillo handed the buy-bust money to Pat. Maramot. Since there were no
other "operatives" at the station available for the operation, Sgt. Cerrillo sought the assistance of ADAM
members Joseph Mendoza, Amado Betita and Alex Trinidad. The team, including "Danny," were briefed by
Sgt. Cerrillo. The plan called for Pat. Maramot and Mendoza to pose as the couple interested in buying
marijuana and for Trinidad, Betita and Sgt. Cerrillo to act as the "back-up" men. Pat. Maramot was to nod her
head as soon as the sale was consummated.[5]
At about 11:35 a.m., the group, using two vehicles, proceeded to the vicinity of Pier 10 at the North
Harbor. At the corner of Moriones Street and Radial Road 10, Pat. Maramot and Mendoza sat on a bench by a
store to wait for the return of Danny, who had meanwhile left to fetch Bulag, while Sgt. Cerrillo, Trinidad
and Betita strategically positioned themselves at a billiard hall, mingling with spectators and pretending to be
bystanders. The billiard hall was only about ten meters away from Pat. Maramots group, and it afforded a
good view of the place.[6]
Moments later, Danny arrived with accused Wilfredo Rosales, a.k.a. Bulag. Rosales talked with the
poseur-buyers. After about five minutes, the poseur-buyers, Rosales and the informant entered an alley,
walking along shanties, until they reached a house numbered 1349.
A half-naked man in green shorts emerged from one of the doors of the house. The man, later identified
to be accused Ernesto Enriquez, a.k.a. Nene, asked Pat. Maramot in Visayan accent, Dala mo ba ang
pera? Pat. Maramot took out from her pocket the bundle of the marked money and showed it to
Enriquez. The latter allowed Maramots group to enter the house.[7] Minutes later, as so pre-arranged, Sgt.
Cerrillo followed and proceeded to house No. 1349. Finding the door closed, he went around the house. Sgt.
Cerrillo saw Pat. Maramot, Mendoza and the informant exit through the back door. Rosales, carrying a plastic
bag, was with them. Again, Sgt. Cerrillos group followed Pat. Maramot and Rosales until the latter reached a
nearby waiting shed for jeepney passengers. At this point, Pat. Maramot announced that she was a
policewoman. Sgt. Cerrillo held Rosales and took his bag. Sgt. Cerrillo opened the sack, and inside it was
another sack containing marijuana wrapped in plastic.
The group hurriedly returned to house No. 1349 only to find that Enriquez had by then left the
premises. The team boarded the police service jeep and moved on to Kagitingan Street at the Lakandula
detachment. Sgt. Cerrillo interviewed Rosales. Upon being informed that Enriquez would usually visit the Pier
10 area, Sgt. Cerrillo proceeded to the place. After scouring the area, a security guard supervisor at the pier,
who accompanied the group, spotted Enriquez walking near the pier. Sgt. Cerrillo picked up Enriquez and
brought him to the Lakandula detachment for investigation. Later, Minda, the wife of Enriquez, arrived.
Someone, at the request of Enriquez, had fetched her to "bring the money." Enriquez told her to return the
amount to Sgt. Cerrillo. She took out from her wallet its contents three of which were the 100-peso marked
bills.[8] Minda became hysterical. She embraced Sgt. Cerrillo and begged him to forgive her husband. Sgt.
Cerrillo told her to instead see the station commander.[9]
Sgt. Cerrillo apprised Enriquez and Rosales of their constitutional rights. Sgt. Cerrillo advised Enriquez, in
front of the latters wife, that he should look for a lawyer so that his statement could be taken. Sgt. Cerrillo
prepared the request for the examination of the evidence taken from the accused and the affidavit [10] of the
latter's arrest.[11]
On the evening of 05 June 1990, Minda and other relatives of Enriquez approached Sgt. Cerrillo for the
possibility of "settling" the case. During the trial, another relative, a senior supervising agent of the Napolcom,
also approached and requested Sgt. Cerrillo to help out.[12]
Patrolwoman Shirley Maramot, 37 years old, assigned at Police Station No. 2, corroborated Sgt.
Cerrillo. She testified that she was requested by Sgt. Cerrillo to be the poseur-buyer in the buy-bust operation
conducted in the morning of 05 June 1990 along Alinian Street, Tondo, Manila. After Sgt. Cerrillo had

conducted a briefing and provided her with the buy-bust money, Pat. Maramot went with Mendoza, who
portrayed the role of her husband, and the informer to Radial 10 at Pier 14. When Wilfredo Rosales turned
up, he asked if she had cash with her. After being shown the money, Rosales led her to a house numbered
1349. The poseur-buyers were made to wait momentarily while Rosales talked to Ernesto Enriquez. Rosales
later signaled Pat. Maramot, who was around four (4) meters away, to again show her money. Forthwith, Pat.
Maramot was led to the house of Enriquez. Once inside a small room, Enriquez locked the door. Enriquez
asked Pat. Maramot how much money she had. She replied that she only had P1,000.00 since she was not
sure that she could get as much as the one-half sack of the contraband shown to her. Pat. Maramot was told
she could get the lot for P4,500.00. She said she was willing to get the lot if she could be trusted with the
balance of the price. Enriquez agreed. Pat. Maramot handed over the P1,000.00 to Enriquez. The latter was
about to hand over the marijuana when he decided to, instead, have Rosales personally deliver the marijuana.
Pat. Maramot followed Rosales until Maramot finally introduced herself as a policewoman. Rosales
posthaste attempted to board a passing passenger jeep but Pat. Maramot and Sgt. Cerrillo, who had rushed in,
were able to timely get hold of Rosales.[13]
NBI Forensic Chemist George J. de Lara issued, on 06 June 1990, a certification to the effect that the
specimen submitted to him was positive for marijuana.[14] Sgt. Cerrillo prepared a case report[15] and the
respective booking sheet and arrest report.[16] The official report of the NBI forensic chemist, dated 07 June
1990, disclosed the following findings:
Weight of specimen = 6.00 kilograms (before examination)
5.999 kilograms (after examination)
Microscopic, chemical and chromatographic examinations made on the above-mentioned specimen gave
POSITIVE RESULTS for MARIHUANA.[17]
On the same day, Station Commander Benjamin de Jesus endorsed the case against Enriquez and Rosales to
the City Prosecutor for further proceedings. The inquest fiscal recommended [18] that the two accused be
charged with violation of Section 4, Article II, Republic Act No. 6425, as amended.
The defense gave a different version of the incident.
Accused Rosales testified that he had come from Bohol to Manila in April of 1990 and stayed with accused
Enriquez, his cousin, while working as an extra porter of William Lines. At around 11:30 in the morning of 05
June 1990, he was on his way home from work when a male person whom he recognized only by face sought
his assistance in carrying a sack to a place where jeepney commuters would take their ride. The sack was
colored white and emitted the smell of dried fish. He was promised P20 in exchange for his help. At a
junction, a security guard whom he later identified to be Homer Ciesta, blocked and pushed him inside a
vehicle where he was promptly handcuffed. During the commotion, the owner of the sack
disappeared.[19] Rosales was brought to a house near the slum area in Parola where P20,000 was quoted for
his release by Sgt. Cerrillo.[20] When Rosales did not heed the demand, he was brought first to the Lakandula
detachment and then to Station No. 2 of the Western Police District.
On his part, Enriquez, a resident of 1349-C Alinian Street, Tondo, Manila, claimed that he was in the
business of purchase and sale of oil at the North Harbor, under the business name of Nie-Men R. Enriquez
Enterprises,[21] being the grantee of a permit to operate an oil sludge collection service. [22] He was under
contract by the Lorenzo Shipping Corporation from January 1983 to April 1984. He was also the Vice-President
of the Kapisanan ng Maralitang Naninirahan ng Tondo, Inc. a civic organization and a recipient of a
certification of merit from the National Steel Corporation.[23]

Recounting his whereabouts in the morning of 05 June 1990, Enriquez said he left his house at around
11:45 a.m. for Pier 10 of the North Harbor, barely a thirty-minute walk away from his residence, to meet his
brother, Victor Enriquez, at the pier. He had with him P2,000 in P100 denominations stacked in his wallet.
Robinson Lumbis, a neighbor who was road testing his cab along North Harbor, saw and greeted
Enriquez.[24] Betty Quimbo, another neighbor, later saw Enriquez with his brother.[25] Appellant took his lunch
at home and thereafter hurriedly returned to the pier. He was not able to spend the night in his house. The
following day, 06 June 1990, at around two oclock in the afternoon, Enriquez went to the maintenance
section of the Lorenzo Shipping Lines to pay for the oil he had obtained from its vessels. Homer Ciesta, the
officer-in-charge of the security guards of the shipping line, invited Enriquez, and the latter agreed, to join him
(Ciesta) earn some "extra money." The two left for the squatters area in Parola and, once there, Ciesta told
Enriquez to approach a certain person, later identified to be Sgt. Cerrillo, who instantly handcuffed him. Sgt.
Cerrillo demanded P20,000 in exchange for his freedom. When he refused to give in to the demand, Enriquez
was brought to the Lakandula detachment where the P2,000 he had in his wallet was taken and presented in
evidence as the amount used in the buy-bust operation. He was brought to Station No. 2 of the WPD for
investigation.[26] Homer Ciesta went to tell Arminda, the wife of Enriquez, to bring some money to the
Lakandula police detachment. Arriving at the detachment, someone approached Arminda and asked her
whether she had the money. She replied in the affirmative. The person then grabbed her wallet, took its
contents and later returned the empty wallet.[27]
On 24 January 1991, the trial court, giving credence to the evidence submitted by the prosecution, found
both accused guilty beyond reasonable doubt of the crime charged and sentenced each of them to life
imprisonment and to pay a fine of P30,000.
In their appeal to this Court, Rosales and Enriquez have filed separate briefs.
Appellant Enriquez insists on his innocence and faults the trial court for giving too much credence to the
testimony of Sgt. Cerrillo and Pat. Maramot who, Enriquez asserts, have merely framed them up for selfish
motives. He theorizes that it would seem incredible for either Pat. Maramot or Sgt. Cerrillo to have left and
abandoned Station No. 2 considering that the Station Commander and his men have all been posted in the
then on-going rally at the U.S. Embassy. He downgrades the prosecutions asseveration that Pat. Maramot,
being unarmed, could not effect his immediate arrest, and that Sgt. Cerrillo has so used his personal funds as
marked money. Enriquez also questions the six-day delay in the filing of the information.
The Court is scarcely impressed.
Simply said, appellant Enriquez would assail the credibility of the two prosecution witnesses. Almost
always, the evaluation made by the trial court on the credibility of witnesses is viewed with respect. The trial
judge, who has the distinct advantage of being able to observe closely the demeanor and deportment of
witnesses on the stand as well as the manner in which they testify, undoubtedly can better determine than
anyone else if such witnesses are telling or are not telling the truth. He is in an ideal position to weigh
conflicting testimonies and unless, as so repeatedly said, he has obviously discarded or missed certain facts of
substance and significance that, otherwise, would have altered his judgment, an assessment on credibility
made by him should indeed deserve approbation by an appellate court.[28]
The Court, in the case at bench, has scrutinized the records, and it finds no justification for holding
differently from the findings made by the trial court.
In drug related cases, particularly in a buy-bust operation, the contention that the accused has merely
been framed up by law enforcement personnel for selfish motives is quite often raised by the defense. For
this claim to prosper, the evidence adduced must be clear and convincing[29] in order to overcome the
presumption that government officials have performed their duties in a regular and proper
manner.[30] Appellant, regrettably, has miserably failed to substantiate his allegations in this respect.

Enriquez questions the six-day delay in the filing of the information against him which he attributes to an
extortion attempt made on him. Like an alleged frame-up, a supposed extortion by police officers has, too,
been a standard defense in drug cases. Appellants failure to offer evidence, independently of his bare claim of
extortion, suggests that this defense could either be a fabrication or an afterthought. If, truly, the arresting
police officers have tried to extort money from him, it should have behooved Enriquez to come forward with
the proper charges against the erring police officers.[31] No criminal or administrative charges appear to have
been filed by him. It is equally strange that the supposed extortions neither appeared in appellant's counteraffidavit[32] nor in his affidavit[33] both prepared by his counsel of choice. In any event, the Court does not see
any real undue delay on the part of the police. The station commander filed the case with the prosecutor on
07 June 1990, the same day that the NBI forensic chemists official report was released. The transmittal
letter,[34] of the station commander, bears the recommendation, likewise dated 07 June 1990, of the inquest
fiscal finding a violation of Section 4, Article II, of R.A. No. 6425.
Appellant Enriquez surmised that it was strange for Sgt. Cerrillo and Pat. Maramot to have left the police
station unmanned just to conduct a buy-bust operation. Sgt. Cerrillo explained that, being the Intelligence
Officer in Station No. 2, he would spend most of his duty hours in the field. [35] He chose Pat. Maramot to be
the poseur-buyer because she was not well known in the place of operation. While she had a desk job she
could also be assigned elsewhere when the situation would demand. Furthermore, the buy-bust operation
was conducted in an area not far from the police station (testified to be at an approximate distance of
between the Manila City Hall and the Luneta Park[36]).
On cross-examination, Pat. Maramot explained why she could not arrest Enriquez when he received the
money. She testified:
ATTY. ESMERO:
"During the time that you were in that room together with Enriquez and you said that
Enriquez took up a half sack of marijuana under the table, did it not occur to your mind to arrest
him immediately during that time and introduced yourself as a policewoman together with your
husband?
"WITNESS:
"If you will place yourself in my situation, I am so small to arrest a person and I am not so
big so I have to wait for my companions, sir.
"INTERPRETER:
"Witness pointed to the Accused.
"ATTY. ESMERO:
"How about your supposed husband?
"WITNESS:
"Besides we did not bring anything even a gun because they are outside, sir.
"ATTY. ESMERO:
"You could have immediately went (sic) out of the door and after that contacted Cerrillo.
You could have told him immediately because he was about seven (7) meters from that room?
"WITNESS:
"The door was locked, sir.

"ATTY. ESMERO:
"You could have knocked at the door if you want to call him?
"WITNESS:
"It could not be heard because in that alley there were adjacent rooms, sir, `kuwartokuwarto.'
"ATTY. ESMERO:
"Now, you said that you went out through the back door. Who was together with you when
you went out at the back door?
"WITNESS:
"Joseph, the one who pretended to be my husband, sir.
"ATTY. ESMERO:
"How about Rosales?
"WITNESS:
"He passed through the front door together with the informant, sir.
"ATTY. ESMERO:
"And the front door was where Pat. Cerrillo was positioned?
"WITNESS:
"No, sir. Cerillo was positioned at the side. He could not meet them immediately because when
you go out at that door, it is already a street.[37]
The use of Sgt. Cerrillos own money in the buy-bust operation could be expected. Police Station No. 2
was not logistically funded.[38] In the buy-bust operation, only three 100-peso bills of the marked money
were recovered which, unfortunately, were lost to thieves when Sgt. Cerrillo had momentarily parked his jeep
within the vicinity of the police station on 11 July 1990.[39] He reported this loss along with the loss of an
ammunition belt pack with six (6) live cal. .38 bullets and his Parker ballpen. [40] At any rate, the nonpresentation of the buy-bust money could not adversely affect the case against appellants.[41]
Alibi is definitely a weak defense although it may occasionally prove to be a good plea. In order to be
effective, however, this defense requires proof that it would be physically impossible for the accused to be at
the locus criminis at the time of the commission of the crime. Where there is even the least chance for the
accused to be present at the crime scene, the alibi seldom will hold water.[42] Most significantly, the defense
of alibi crumbles in the face of a positive identification of the malefactor.[43]
In his case, appellant Rosales argues that to sustain a conviction for the crime of selling marijuana, the
sale must be clearly established which, he asserts, the prosecution has failed to do.
The Court cannot sustain the argument.
Under Section 4, Article II, of R.A. No. 6425,[44] as amended, the law penalizes not only the sale but also
the delivery of prohibited drugs.
Section 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. The penalty of
life imprisonment to death and a fine ranging from twenty thousand to thirty thousand pesos shall be imposed
upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute,

dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions. If the
victim of the offense is a minor, or should a prohibited drug involved in any offense under this Section be the
proximate cause of the death of a victim thereof, the maximum penalty herein provided shall be imposed.
(Italics supplied.)
Selling is only one of the acts covered by the statutory provision. The law defines the word deliver as a
persons act of knowingly passing a dangerous drug to another personally or otherwise, and by any manner
with or without consideration. Delivery, although not incidental to a sale, is a punishable act by itself; while
sale may involve money or any other material consideration,[45] delivery may be with or without
consideration.
Appellant Rosales contends that while criminal intent need not generally be proved in crimes that
are mala prohibita, knowledge that the sack in his possession contained a prohibited drug must nevertheless
be established. Indeed, Section 2(f) of the Dangerous Drugs Law requires that a person who delivers a
prohibited drug must knowingly pass such contraband to another person. Thus, in one case, the Court has
said:
x x x. While it is true that the non-revelation of the identity of an informer is a standard practice in drug
cases, such is inapplicable in the case at bar as the circumstances are different. The would-be buyers
testimony was absolutely necessary because it could have helped the trial court in determining whether or not
the accused-appellant had knowledge that the bag contained marijuana, such knowledge being an essential
ingredient of the offense for which he was convicted. The testimony of the poseur-buyer (not as an informer
but as a `buyer) as to the alleged agreement to sell therefore became indispensable to arrive at a just and
proper disposition of this case.[46]
In this case, the trouble appears to be that appellant Rosales incorrectly assumes to be, or gives an impression
of being, unaware of the prohibited drug involved in the questioned transaction with appellant Enriquez; in
point of fact, however, it is sufficiently shown that Rosales has known all along that the deal between Enriquez
and the poseur-buyers had only to do with marijuana.
Appellant Rosales believes that his act of carrying the sack of marijuana is a mere attempt to deliver the
prohibited drug. In other words, the sack being still within his control, he could, he states, have easily refused
to deliver the item to the poseur-buyer. Here, he seeks to capitalize on his being supposedly still in
the subjective phase of the crime. Appellant Rosales thus submits that, if found guilty, he should only be held
accountable for attempted delivery of a prohibited drug.
Article 6 of the Revised Penal Code provides:
"ART. 6. Consummated, frustrated, and attempted felonies. - Consummated felonies, as well as those which
are frustrated and attempted, are punishable.
"A felony is consummated when all the elements necessary for its execution and accomplishment are present;
and it is frustrated when the offender performs all the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the
perpetrator.
"There is an attempt when the offender commences the commission of a felony directly by overt acts, and
does not perform all the acts of execution which should produce the felony by reason of some cause or
accident other than his own spontaneous desistance."

The subjective phase in the commission of a felony is that portion of its execution starting from the point where
the offender begins by overt acts to pursue the crime until he is prevented, against his will, by some outside
cause from performing all of the acts which would produce the offense. If the subjective phase has not yet
passed, then the crime is only attempted. If that phase has been done but the felony is not produced, the crime
is frustrated.[47] The crime is consummated if, following the subjective phase, the last of the elements of the
felony meets to concur. These rules are inapplicable to offenses governed by special laws.[48]
Unfortunately for appellant, the crime with which he is being charged is penalized by a special law. The
incomplete delivery claimed by appellant Rosales, granting that it is true, is thus inconsequential. The act of
conveying prohibited drugs to an unknown destination has been held to be punishable, [49] and it is immaterial
whether or not the place of destination of the prohibited drug is reached.[50]
In sum, the facts proven beyond reasonable doubt in this case were that: (a) Two police officers, one of
them a woman, conceived of and executed a buy-bust operation; (b) the operation led to the red-handed
apprehension of appellant Rosales just as he delivered the illegal drug; and (c) appellant Enriquez who had
peddled the same to the poseur-buyer was himself later arrested shortly thereafter. The sale and delivery of
marijuana constituted punishable acts under Section 4, Article II, of R.A. No. 6425, as amended. Appellants
Enriquez and Rosales should bear the consequences of their trifling with the law. The two evidently
confederated towards the common purpose of selling and delivering marijuana. Conspiracy could be inferred
from the acts of the accused, whose conduct before, during and after the commission of the crime would
show its existence.[51] It was appellant Rosales who brought the poseur-buyer to appellant Enriquez for the
purchase of marijuana. It was upon the instruction of appellant Enriquez, apparently to retain control of the
unpaid portion of the six-kilogram contraband, that appellant Rosales was to carry the sack to the supposed
residence of the poseur-buyers. In conspiracy, the act of one conspirator could be held to be the act of the
other.[52]
R.A. No. 7659, amending the Dangerous Drugs Law, now provides that if the quantity of drugs involved in
any of the punishable acts is more than any of the amounts specified in the law, the penalty of reclusion
perpetua to death[53] must be imposed. Considering that the marijuana involved here weighed more than 750
grams, the maximum specified amount for marijuana, appellants, ordinarily, are to be meted that penalty. An
amendatory law, however, may only be applied retroactively if it proves to be beneficial to the appellants. In
this case, it would not be that favorable to them; hence, like in People vs. Ballagan,[54] the Court could only
impose the penalty of life imprisonment upon appellants. The penalty ofreclusion perpetua would mean that
the accused would also have to suffer the accessories carried by that penalty, as well as the higher fine,
provided for by R.A. No. 7659.[55]Appellants must, accordingly, still bear the penalty imposed on them by the
trial court.
WHEREFORE, the questioned Decision of 21 January 1991 of the Regional Trial Court of Manila, finding
appellants Ernesto Enriquez and Wilfredo Rosales guilty beyond reasonable doubt of the crime punished by
Section 4, Article II, of R.A. No. 6425, as amended, and imposing on them the penalty of life imprisonment and
the payment of the fine ofP30,000 is AFFIRMED. Costs against appellants.
SO ORDERED.
Davide, Jr., Acting Chief Justice, (Chairman), Bellosillo, and Kapunan, JJ., concur.

[1]

Rollo, p. 7.

[2]

Exhs. E-1 to E-10, Records, p. 40.

[3]

Sgt. Pedro I. Cerrillo, Jr., TSN, 22 August 1990, pp. 13-19.

[4]

Exh. J, Records, p. 47.

[5]

TSN, 22 August 1990, pp. 20-25.

[6]

Ibid., pp. 26-35.

[7]

Ibid., pp. 36-41.

[8]

TSN, 26 September 1990, pp. 4-7.

[9]

Ibid., p. 13.

[10]

Exh. F, Records, p. 41.

[11]

TSN, 26 September 1990, pp. 16-17.

[12]

Ibid., 23-24.

[13]

TSN, 31 October 1990, pp. 4-21.

[14]

Exh. B, Records, p. 38.

[15]

Exh. H, Records, p. 45.

[16]

Exhs. I & M, Records, pp. 48 and 52.

[17]

Exh. C, Records, p. 39.

[18]

Exh. K, Records, p. 50.

[19]

TSN, 17 December 1990, pp. 36-42.

[20]

Ibid., pp. 43-44.

[21]

Exh. 4, Records, p. 115.

[22]

Exh. 7, Ibid., p. 118.

[23]

Exh. 5, Ibid., p. 116.

[24]

Exh. 9, Ibid., p. 120.

[25]

Exh. 8, Ibid., p. 119.

[26]

TSN, 26 November 1990, pp. 7-12.

[27]

Ibid., pp. 21-23.

[28]

See People vs. Gabris, 258 SCRA 663.

[29]

People vs. Lua, 256 SCRA 539.

[30]

People vs. Jain, 254 SCRA 686.

[31]

People vs. Doroja, 235 SCRA 238.

[32]

Exh. O, Records, p. 121.

[33]

Exh. P, Ibid., p. 62.

[34]

Exh. K, Ibid., p. 50.

[35]

TSN, 24 October 1990, p. 3.

[36]

TSN, 31 October 1990, pp. 28-31.

[37]

TSN, 31 October 1990, pp. 43-45.

[38]

TSN, 24 October 1990, p. 9.

[39]

Ibid., p. 11.

[40]

Exh. N, Records, p. 53.

[41]

People vs. Ang Chun Kit, 251 SCRA 660; People vs. Ganguso, 250 SCRA 268; People vs. Herrera, 247 SCRA
433; People vs. Nicolas, 241 SCRA 67.
[42]

People vs. Bracamonte, 257 SCRA 380; Enriquez himself admitted that his residence was only half a
kilometer away from Pier 10 and negotiable by a bare thirty-minute walk (TSN, 26 November 1990, p. 15).
[43]

People vs. Compendio, Jr., 258 SCRA 254.

[44]

The offense was committed prior to the effectivity of R.A. No. 7659.

[45]

Sec. 2(f), Art. I, Dangerous Drugs Act.

[46]

People vs. Libag, 184 SCRA 707, 715.

[47]

U.S. vs. Eduave, 36 Phil. 209.

[48]

See Aquino, The Revised Penal Code, Vol. I, 1987 ed., p. 97 citing U.S. vs. Basa, 8 Phil. 89 and People vs.
Ngan Te, 62 Phil. 588.
[49]

People vs. Leangsiri, 252 SCRA 213.

[50]

People vs. Lo Ho Wing, 193 SCRA 122.

[51]

People vs. Leangsiri, supra.

[52]

People vs. Alberca, 257 SCRA 613; People vs. Leangsiri, supra.

[53]

Secs. 4 and 20 of Rep. Act No. 6425 as amended by Rep. Act No. 7659.

[54]
[55]

247 SCRA 535.

One of the reasons pointed out in the Ballagan case for the imposition of life imprisonment and
not reclusion perpetua is the now abandoned ruling in People vs. Lucas (232 SCRA 537) fixing the duration
ofreclusion perpetua at twenty (20) years and one (1) day to forty (40) years. On 09 January 1995, however,
the Court issued a Resolution in the Lucas case clarifying that reclusion perpetua is not a divisible penalty
considering that Congress did not amend Arts. 63 and 76 of the Revised Penal Code (240 SCRA 66).

EN BANC

[G.R. No. 125017. March 12, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GERARDO BACUNGAY Y CAINDOY, ERIC RICAFRANCO Y
MALABANA, CRIS IGLESIA Y OGNALA and RENATO MENDEZ Y DE LEON, accused-appellants.
DECISION
PER CURIAM:
We view with grave concern the proliferation across the country of criminal syndicates and even loose
aggroupments fueling an alarming and unprecedented wave of kidnappings in recent years. Preying mostly on
affluent members of the Filipino-Chinese community, and even on foreign tourists, they rake in millions of
pesos in ransom, virtually transforming kidnapping into a lucrative industry in this part of the world. Despite
the determined and intensified efforts of various law enforcement agencies to dismantle and neutralize these
outlaws, their illegal activities continue unabated. By any conceivable legal measure, kidnapping for ransom
must be contained and its perpetrators dealt with with the full force of the law, not only because by its nature
it is despicable, but more importantly, for reasons of maintaining public order, safety and security, so crucial
to the social and economic progress of the country. Yet, the enormous burden of repressing this plague is not
exclusive to the police and military arms of the State. It requires likewise a coordinated participation of the
courts and an uncompromising cooperation of the elements of civil society.
The Decision of the Regional Trial Court of Makati City in Crim. Cases Nos. 95-786, 95-787 and 95-788
finding accused-appellants GERARDO BACUNGAY, ERIC RICAFRANCO, CRIS IGLESIA and RENATO MENDEZ
guilty of three (3) counts of kidnapping for ransom and imposing upon them the penalty of death for each
count[1] is before us on automatic review.
The inculpatory evidence against the four (4) accused-appellants shows that at around 8:00 oclock in the
evening of 12 March 1995 Ivonne Keh[2] was driving her car along Galaxy Street, Bel-Air Subdivision, Makati
City, with her mother Chinya Hwang who was seated beside her and uncle Alberto Drit Chua who was at the

back seat. All of a sudden a red car overtook them and blocked their path, forcing Ivonne Keh to stop. Three
(3) armed men two (2) of whom were later identified as accused-appellants Gerardo Bacungay and Eric
Ricafranco, while the third remained unknown -alighted from the red car and started banging the windows of
the car of Ivonne Keh, ordering her to unlock the doors. Ivonne Keh who was now gripped with fear yielded.
One of the men dragged her out of the car and shoved her to the back seat. Eric Ricafranco and his
unidentified companion then squeezed themselves at the back seat together with the victims while Gerardo
Bacungay took the drivers seat and drove the car out of Bel-Air Subdivision, followed by the red car.
The victims were ordered to close their eyes as they were divested of their money, jewelry and other
personal belongings. But Ivonne Keh would occasionally peek to find out where they were being taken and
noticed that they were somewhere in Pasay City, later on, in Bicutan, Taguig. Before long, the cars stopped at
a vacant lot in an unknown location. This time all three (3) victims were blindfolded and Alberto Drit Chua was
taken out of the car and commanded to make a phone call to his family to produce P5,000,000.00 for their
release.[3] It was already daybreak when accused-appellants and the victims left the place. Later, they
momentarily stopped at an undetermined gasoline station where Ivonne Keh was separated from her mother
and uncle, and then proceeded on their way.
After a long drive, Ivonne Keh sensed that they entered an apartelle where she was reunited with her
mother and uncle in one of the rooms.[4] The victims later found out that they were somewhere in Tagaytay.
Thereafter, their abductors conferred and deliberated on who should go to Manila to get the money and who
should stay. Apparently, it was agreed upon that accused-appellant Eric Ricafranco would stay and guard
Ivonne Keh, while the rest of accused-appellants would go to Manila with Ivonne Kehs mother and uncle to
withdraw money from a bank.[5]
As soon as the group left, Ivonne Keh pleaded to Eric Ricafranco to allow her to use the telephone. Eric
initially refused but, after repeated entreaties, finally acceded and accompanied Ivonne Keh to the telephone
outside the room.[6] The victim then immediately called a friend, conversed with her in Chinese, and informed
her of the situation and her whereabouts.
Meanwhile, the abduction was reported to the Philippine National Police. At about 7:00 oclock in the
morning of 13 March 1995 Police Inspector Rolando Bijasa of Camp Gen. Ricardo Papa, Bicutan, Taguig, Metro
Manila, received orders from then Police Chief Superintendent Jewel Canson to conduct a search and rescue
operation.
Two (2) teams were organized and deployed to Tagaytay City, the last known whereabout of victim
Ivonne Keh. The police operatives scoured the vicinity and eventually tracked down the victim inside the
apartelle. They stormed the room where the victim was detained and rescued her from one of her abductors,
Eric Ricafranco, who was then apprehended while watching television. When subjected to a tactical
interrogation, he disclosed to the police that his co-accused Gerardo Bacungay would be back at the apartelle
as soon as he secured the ransom.[7]
Consequently, the police rescue teams set up a dragnet for the returning kidnappers. At about 6:30 in the
evening police spotters positioned outside the building radioed the rescue teams inside about two (2) men
on board a white car, later identified as accused-appellants Cris Iglesia and Renato Mendez, entering the
apartelle compound. The two (2) men went to the front desk of the hotel and, after inquiring from the
attendant, proceeded to the room of Ivonne Keh and Eric Ricafranco. The waiting policemen immediately
nabbed the two (2) as soon as they entered the room. Cris Iglesia and Renato Mendez vehemently denied any
knowledge of the kidnapping, claiming that they were simply hired by Bacungay to pick-up an eloping couple
in Tagaytay City who turned out to be kidnap victim Ivonne Keh and Eric Ricafranco who was guarding her.
Gerardo Bacungay was apprehended when another police team headed by a certain Capt. Agbayalde
arrived at his place in Better Living, Paraaque, Metro Manila, and effected his arrest. [8] The third member of

the kidnap group eluded arrest and remained at large to date. No evidence exists on record as to how the
other victims, Chinya Hwang and Alberto Drit Chua, were rescued or whether ransom had in fact been paid,
since after the incident these two (2) victims hurriedly left the country and decided to settle in Canada, and
thus failed to testify during the trial.
Accused-appellants were charged with kidnapping for the purpose of extorting ransom under three (3)
separate Informations. They pleaded innocent to the charges. Gerardo Bacungay and Eric Ricafranco proffered
a general denial; while Cris Iglesia and Renato Mendez banked heavily on the lack of positive identification by
complaining witness Ivonne Keh. As earlier stated, the trial court convicted accused-appellants as charged, and
sentenced all of them to death. In rejecting their defenses, the trial court held in the main The Court rejects the defense of accused Renato Mendez and Cris Iglesia as ridiculous and without factual
basis. In the first place, there was no couple that eloped. Ivonne Keh did not elope with Eric Ricafranco. The
latter was arrested in a room of an apartelle in Tagaytay City guarding Ivonne Keh. Besides, common sense will
tell us that relatives of an eloping couple will not hire any person to fetch them specially when they were not
known to the couple. On the other hand, the evidence clearly shows that kidnap victims Ivonne Keh, Alberto
Chua and Chinya Hwang pointed to the accused during the police investigation and by Ivonne Keh during the
hearing as one among those who kidnapped them.[9]
Accused Eric Ricafranco was also positively identified by kidnap victims Ivonne Keh during the trial and by
Alberto Chua and Chinya Hwang during the police identification line-up as among those who kidnapped them
x x x x Finally, accused Gerardo Bacungay was also positively identified by the victims Ivonne Keh, Chinya
Hwang and Alberto Chua during the police identification line-up at the police station and by Ivonne Keh during
the trial as one of those who kidnapped them x x x x From the recitation of findings of facts of the Court, there
is sufficient evidence on record to prove that the purpose of kidnapping was for extorting ransom from the
victims.[10]
In the present recourse, accused-appellants insist on the reversal of the judgment of conviction and
impute the following errors to the court below: (a) The trial court erred in convicting accused-appellants
Gerardo Bacungay and Eric Ricafranco on the basis of the doubtful identification by complainant Ivonne Keh,
who was blindfolded at the time of the purported kidnapping, and given the poor lighting condition of the
area where she was allegedly abducted; and, (b) The trial court erred in convicting Cris Iglesia and Renato
Mendez in the absence of a real and direct evidence linking them to the kidnapping.
After a careful review of the records and the arguments of the prosecution and defense, we are satisfied
with the finding of the court a quo that all four (4) accused-appellants are indeed guilty of the crimes charged
for which they must be punished accordingly.
We deal first with the merits of the appeal of Gerardo Bacungay and Eric Ricafranco.
Complaining witness Ivonne Keh positively identified accused-appellants Gerardo Bacungay and Eric
Ricafranco as two (2) of those who abducted them on 12 March 1995. In the police line-up conducted during
the criminal investigation of the case, and more significantly during the trial, she pointed to accusedappellants Bacungay and Ricafranco as part of the group of men who kidnapped them, thus ATTY. FERNANDEZ: Now you stated that three (3) persons approached you from the car that blocked yours,
could you remember the faces of those three (3) persons who drove the car?
WITNESS: Yes, two of them are here, sir.
COURT:

(To the witness) And?

WITNESS: The third one is not here.

COURT:

You said that two (2) of them are here?

WITNESS: Yes and the other one is not here, your Honor.
COURT: Yes, is not here because he was able to escape. Can you point out who are those two, who
among the three (3) blocked your way?
WITNESS: Yes your Honor, there.
COURT:

(To the accused) What is your name?

WITNESS: Eric Ricafranco, your Honor.

COURT:

And the other one?

ATTY. FERNANDEZ: (Butted in to the witness) You said two, how about the other one? x x x x [11]
COURT: (To the witness) The whole duration, that is what you mean. The whole duration that you were
brought and held in that apartelle, can you identify the people who were there?
WITNESS: Yes, sir.
COURT:

Who are they?

WITNESS: Him and him and the other one is not here, your Honor.
COURT:

(To both accused) Your name?

ACCUSED: Eric Ricafranco, sir.

COURT:

How about you?

ACCUSED: Gerardo Bacungay, sir x x x x[12]

In the face of the positive identification by the complaining witness, accused-appellants denial vanishes
into thin air. Indeed, denial, like alibi, is an insipid and weak defense, being easy to fabricate and difficult to
disprove. A positive identification of the accused, when categorical, consistent and straightforward, and
without any showing of ill motive on the part of the eyewitness testifying on the matter, prevails over this
defense. When there is no evidence to show any dubious reason or improper motive why a prosecution
witness would testify falsely against an accused or falsely implicate him in a heinous crime, the testimony is
worthy of full faith and credit.[13]
Accused-appellants made much of the following testimony on cross-examination of complaining witness
Ivonne Keh:
ATTY. ELEVASO: Ms. Witness will you tell this Honorable Court again at what time were you blocked by the
kidnappers?
WITNESS: At 8:00 oclock, sir.
Q: In the evening?
A: Yes, in the evening, sir x x x x
Q: And how would you say was the lighting at the place?
A: It was dark, sir.
Q: And these three (3) persons who came banging at the window of your car and then you said later that
one of them sat at the drivers seat and two (2) of them sat beside you and your uncle?

A: Two of them sat at the back with us, sir.

Q: Yes, one of them was beside your uncle and one was beside you, could you tell this Honorable Court
who was driving the car?
A: He, sir.
COURT:

Witness pointing to accused Gerry Bacungay.

Q: And who was seated beside your uncle?

A: There, sir.
COURT:

Witness pointing to accused Eric Ricafranco.[14]

Q: This skin mask, how was it placed over the head of the driver?
A: I was shocked, sir. I did not notice that anymore, I did not mind it, sir.
Q: So you did not notice what was he wearing?
A: No, sir.
Q: How about the other one seated beside you, what was he wearing at that time?
A: They were normal, what color, I do not remember.
Q: How about the other person?
A: I do not remember, sir. It was really dark inside the car.
Q: And when you arrived at the... You said you were taken to a village area and at that place, were you
able to see the person inside the car?
A: No, sir it was dark and I couldnt see their faces.
Q: When you were at that dark area you said you were blindfolded?
A: Yes, correct x x x x
Q: You stated repeatedly that the place was dark and that you were blindfolded, could you tell this court
why were you able to identify the four (4) accused here?
A: Because my blindfold was really lose, I saw Eric.
Q: How about the others?
A: I also saw them when I went to the apartelle, Gerardo Bacungay.
COURT:

Are you referring to him?

A: Yes, sir. I was still blindfolded at that time (underscoring supplied).[15]

Accused-appellants postulated that the darkness of the place where the victims were intercepted and
kidnapped, coupled by the fact that the victims were blindfolded, rendered their identification of accusedappellants open to serious doubt.
We are not persuaded. It must be stressed that those conditions did not perdure throughout the duration
of the victims captivity as to effectively render impossible the positive identification of accused-appellants.
The records bear out that: (a) The victims were transported by accused-appellants from one place to another,
and in such instance the lighting condition on the road inevitably improved as to permit the victims to see the
faces of their kidnappers; (b) The victims, moreover, were not blindfolded at the time they were spirited out of

Bel-Air Village, Makati City, as they were merely instructed to close their eyes. [16] In fact, Ivonne Keh was even
able to determine, by occasionally opening her eyes, the directions they were heading to - Pasay City and
Bicutan. It was only when they finally stopped at an undetermined vacant lot that accused-appellants placed
the blindfolds on them;[17] and, (c) Ivonne Keh was locked for several hours in one of the rooms of an apartelle
in Tagaytay City with Eric Ricafranco, during which time she undoubtedly had a clear picture of accusedappellants face.
Certainly, the identification of accused-appellants by Ivonne Keh, who had ample opportunity to see and
imprint their faces in her memory, more than satisfies the judicial mind and conscience. In People v.
Candelario[18] we ruled that it is the most natural reaction for victims of crimes to strive to remember the faces
of their assailants and the manner in which they committed the crime. Hence, there is no reason for us to
disbelieve her testimony or to suspect her motives.
As in all criminal prosecutions where conviction or acquittal depends almost entirely on the victims
positive identification of the culprits, the arguments presented by accused-appellants in their individual appeal
briefs go into the credibility of the complaining witness.[19] As we have held in a legion of cases, the
assessment by the trial court of the witness credibility is accorded the highest degree of respect from the
appellate courts which do not deal with live witnesses but rely solely on the cold pages of a written
record.[20] We do not have the least doubt that the court a quo in the instant case prudently fulfilled its
obligation as a factual assessor and legal adjudicator.
Article 267 of The Revised Penal Code, as amended by RA 7659, defines the crime of kidnapping thus Art. 267. Kidnapping and serious illegal detention. - Any private individual who shall kidnap or detain another,
or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death;
1.

If the kidnapping or detention shall have lasted more than three days.

2.

If it shall have been committed simulating public authority.

3.
If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or if
threats to kill him shall have been made.
4.
If the person kidnapped or detained shall be a minor, except when the accused is any of the parents,
female or a public officer.
The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting
ransom from the victim or any other person, even if none of the circumstances abovementioned were present
in the commission of the offense.
When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture or
dehumanizing acts, the maximum penalty shall be imposed (Sec. 8, RA 7659).
The essence of the crime is the actual deprivation of the victims liberty coupled with an indubitable proof
of intent of the accused to effect the same. In the instant case, there is no mistaking the clear, overwhelming
evidence that accused-appellants Gerardo Bacungay and Eric Ricafranco abducted Ivonne Keh and the other
victims at gunpoint and deprived them of their freedom. They were blindfolded to prevent them from knowing
the place where they were transported and, in order to prevent Ivonne Keh from escaping, she was assigned an
armed guard inside the room of the apartelle where she was detained. All these facts more than satisfy the
elements necessary to constitute kidnapping.

We likewise find abundant evidence that the kidnapping was committed for the purpose of extorting
ransom from the victims, as to warrant the mandatory imposition of the death penalty. Complaining witness
Ivonne Keh testified WITNESS: I stayed in the car, he took my uncle in and I and my Mom were left in the car. They ordered my
uncle to call and send money.
ASST. PROSECUTOR DE JOYA: Why were they asking money?
WITNESS: They were asking for 5 Million, sir.
ASST. PROSECUTOR DE JOYA: For what?
WITNESS: That is for our release, sir x x x x[21]
ATTY. ELEVASO: When you said they were asking for ransom, how did you know that they were asking for
ransom?
WITNESS: They were asking only money to (sic) us, sir.
ATTY. ELEVASO: From whom?
WITNESS: From my mom, sir.[22]
Prosecution witness P/Supt. Arthur Castillo, one of the arresting officers, confirmed that accusedappellants demanded ransom from the victims ATTY. FERNANDEZ: And you also asked Eric Ricafranco about his companion?
WITNESS: Well, he confirmed what Ivonne told us. That Gerry (Bacungay) brought them there and the
instruction was just to wait because they were coming back as soon as they got the ransom
money(underscoring supplied).[23]
It is immaterial that no direct evidence exists on record on the actual payment of the ransom money.
After all, actual payment of ransom is not necessary for the crime to be committed, it being enough that there
be at least an overt act of demanding ransom from the victim or any other person as in this case. [24] Our
pronouncement in People v. Salimbago[25] is relevant Neither actual demand for nor actual payment of ransom is necessary for the crime to be committed. It is
enough if the crime was committed for the purpose of extorting ransom. Considering therefore that the
kidnapping was committed for such purpose, it is not necessary that one or any of the four circumstances be
present x x x x
As regards the appeal of accused-appellants Cris Iglesia and Renato Mendez, the Solicitor General
suggests that they be acquitted on the ground that there is no clear-cut evidence on how they became part of
the criminal conspiracy. Evidently, the Solicitor General believed accused-appellants story that they had no
knowledge of the kidnapping of the victims, and they merely went to Tagaytay City on an errand, for a fee,
from Gerardo Bacungay purportedly to pick up a couple who eloped, and bring them back to Bicutan In this case, appellants Cris Iglesia and Gerardo Bacungay, due to sheer promise of money in the amount
of P1,000.00 once they fetch two (2) lovers in Tagaytay City, proved themselves to be at the wrong place and
at the wrong time x x x x it would appear nonetheless that it is appellant Cris Iglesia and Renato De Leons (sic)
incidental acquaintance to appellant Gerardo Bacungay that plunged them deeper into the assumed
conspiracy. What initially appeared to them as an errand for a fee was intertwined to a conspiracy which they

immediately denied any knowledge of. An assumed intimacy, or in this case, acquaintance, however, has no
legal bearing to the charge of conspiracy as conspiracy transcends companionship.
In this case, however, there is a gnawing dearth of evidence that should satisfactorily show that appellants Cris
Iglesia and Renato De Leon (Mendez?) agreed to the kidnapping scheme. Without evidence as to how
appellants Cris Iglesia and Renato Mendez participated in its perpetration, conspiracy cannot be, appreciated
against them. Evidence of intentional participation is indispensable, as appellants mere presence at the scene
of the crime cannot be considered as proof of conspiracy.[26]
We disagree with the conclusions of the Solicitor General. Indeed, it is difficult to accept accusedappellants feeble and anemic excuse that they had nothing to do with the kidnapping of Ivonne Keh, her
mother Chinya Hwang and uncle Alberto Drit Chua. As observed by the trial court to which we agree,
common sense will tell us that relatives of an eloping couple will not hire any person to fetch them especially
when they were not known to the couple.[27] Moreover, it is inconceivable that members of a kidnapping
syndicate would entrust the performance of an essential and sensitive phase of their well-planned criminal
scheme to people not in cahoots with them, and who had no knowledge whatsoever of the details of their
nefarious plan. Obviously, Cris Iglesia and Renato Mendez mission in going to Tagaytay City was not as
innocent as they claimed it to be; instead, it was part and parcel of the elaborate plot to kidnap the victims
and extort ransom from them. In fact, they virtually admitted their participation in the crime, i.e., to fetch
Ivonne from her place of detention in Tagaytay City and transfer her to another place in Bicutan, although
they were dissociating themselves therefrom by proclaiming lack of knowledge of the criminal design. It would
therefore be putting too much strain on the imagination that they were not privy to the plot of Gerardo
Bacungay and Eric Ricafranco and that they did not participate in carrying out the criminal conspiracy.
Undoubtedly, conspiracy exists among accused-appellants in perpetrating the kidnapping for ransom.
Their individual participation, viewed in its totality, points to a joint purpose and criminal design. Thus, Gerardo
Bacungay and Eric Ricafranco snatched the victims from Bel-Air Village, Makati, Metro Manila, and
transported and detained them in an apartelle in Tagaytay City; Eric Ricafranco guarded Ivonne Keh to prevent
her from escaping, while Gerardo Bacungay and his unidentified companion were busy securing the ransom
money in Manila; and, Cris Iglesia and Renato Mendez were designated to pick up Ivonne Keh in Tagaytay City
and transfer her to Bicutan to avoid early detection until the payment of ransom money and her eventual
release. These acts were complementary to one another and geared toward the attainment of a common
ultimate objective: to extort a ransom of P5 million in exchange for the victims freedom.
There is conspiracy when two (2) or more persons come to an agreement concerning the commission of a
felony and decide to commit it. Proof of agreement to commit a felony, in view of the secrecy by which it is
usually hatched, need not rest on direct evidence as the agreement itself may be inferred from the conduct of
the accused, disclosing a common understanding among them with respect to the commission of the offense.
Thus, if it is proved that two (2) or more persons aimed their acts toward the accomplishment of the same
unlawful object, each doing a part so that their acts, though apparently independent, were in fact connected
and cooperative, indicating closeness of personal association and a concurrence of sentiment, then conspiracy
may be inferred though no actual meeting among them to concert means is proved.[28] Consequently, in the
instant case, accused-appellants Cris Iglesia and Renato Mendez are equally liable for the crime and they
should not be allowed to escape the full force of the rule that in a conspiracy the act of one is the act of all.
Finally, in what perhaps is his final bid at exoneration, accused-appellant Renato Mendez enumerated in
his brief his alleged numerous religious activities and accomplishments, suggesting thereby that he was not
capable of committing the crime imputed to him. However, the fact that accused-appellant is endowed with
sterling qualities hardly justifies the conclusion that he is innocent of the charges against him or that he is
incapable of committing them. Manifestations of devotion or piety supposedly equated with religious fervor

are not always emblems of good conduct and do not guarantee that an accused cannot commit a crime. An
accused is not entitled to an acquittal simply because of his previous, or even present, good moral character
and exemplary conduct. The affirmance or reversal of his conviction must be resolved on the basic issue of
whether his guilt has been proved beyond any peradventure of doubt.
WHEREFORE, the Decision of the court a quo finding accused-appellants GERARDO BACUNGAY Y
CAINDOY, ERIC RICAFRANCO Y MALABANA, CRIS IGLESIA Y OGNALA and RENATO MENDEZ Y DE LEON guilty
beyond reasonable doubt of kidnapping for ransom defined and penalized under Art. 267 of The Revised Penal
Code, as amended by RA 7659, and imposing upon each of them the supreme penalty of death, is AFFIRMED.
Three (3) Justices of the Court maintain their position that RA 7659 is unconstitutional insofar as it
prescribes the death penalty; nevertheless, they submit to the ruling of the majority that the law is
constitutional and the death penalty can lawfully be imposed in the instant case.
Upon finality of this Decision and pursuant to Art. 83 of The Revised Penal Code as amended by Sec. 25 of
RA 7659, let the records of this case be forthwith forwarded to Her Excellency, the President of the
Philippines, for the possible exercise of her pardoning power.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Buena,
Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.

[1]

Decision penned by Judge Eriberto D. Rosario, Jr., RTC-Br. 66, Makati City.

[2]

Also spelled Yvonne Keh in some parts of the records.

[3]

TSN, 15 August 1995, pp. 17-18.

[4]

Id., p. 25.

[5]

Id., p. 26.

[6]

Id., pp. 27-28.

[7]

Id., p. 11.

[8]

Id., p. 17.

[9]

TSN, 15 September 1995, pp. 18-19, 52-53; 15 August 1995, pp. 58-66,

[10]

TSN, 25 August 1995, pp. 18-22.

[11]

TSN, 15 August 1995, pp. 44-45.

[12]

Id., pp. 54-55.

[13]

People v. Geralde, G.R. No. 128622, 14 December 2000.

[14]

TSN, 15 August 1995, pp. 77-80.

[15]

Id., pp. 81, 87.

[16]

Id., p. 15.

[17]

Id., p. 16.

[18]

G.R. No. 125550, 28 July 1999, 311 SCRA 475.

[19]

See Records, pp. 202-214, 257-271.

[20]

People v. Obzunar, et al., G.R. No. 92153, 16 December 1996, 265 SCRA 547; People v. Perez, et al., G.R.
Nos. 110100-02, 11 December 1996, 265 SCRA 506; People v. Escandor, et al., G.R. No. 95049, 9 December
1996, 265 SCRA 444; People v. Pareja, et al., G.R. No. 88043, 9 December 1996, 265 SCRA 429;
People v. Gondora, G.R. No. 118770, 6 December 1996, 265 SCRA 408.
[21]

TSN, 15 August 1995, pp. 17-18.

[22]

Id., p. 85.

[23]

Id., 19 September 1995, p. 48.

[24]

People v. Ong, No. L-34497, 30 January 1975, 62 SCRA 174.

[25]

G.R. No. 121365, 14 September 1999, 314 SCRA 282.

[26]

See Solicitor Generals Consolidated Brief for the Appellee, pp. 25, 27-28; Rollo, pp. 315, 317-318.

[27]

Rollo, p. 105.

[28]

See People v. Layno, et al., G.R. No. 110833, 21 November 1996, 264 SCRA 558.

THIRD DIVISION

[G.R. Nos. 147814-15. September 16, 2003]

RAUL ZAPATOS Y LEGASPI, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION

SANDOVAL-GUTIERREZ, J.:
Since the olden times, no impulse has been proven so powerful than that of self-preservation. Thus, the
law, out of tenderness for humanity, permits the taking of life of another in defense of ones person in times
of necessity. In the words of the Romans of ancient history: Quod quisque ob tutelam corporis sui fecerit, jure
suo fecisse existimetur.[1]
Assailed in this petition for review on certiorari is the Decision[2] dated March 27, 2001 of the
Sandiganbayan in Criminal Cases Nos. 17015 and 17016 finding Raul Zapatos, petitioner herein, guilty beyond
reasonable doubt of the crimes of murder and frustrated murder and sentencing him as follows:
WHEREFORE, under Criminal Case No. 17015, the accused RAUL ZAPATOS, is hereby found GUILTY beyond
reasonable doubt of the crime of MURDER, defined and penalized under Article 248, Revised Penal Code and,
considering the presence of one (1) mitigating circumstance with no generic aggravating circumstance, he is
hereby sentenced to suffer the penalty of imprisonment ofRECLUSION PERPETUA and to indemnify the heirs
of the late Mayor Leonardo Cortez in the amount of P50,000.00;
Under Criminal Case No. 17016, the same accused, RAUL ZAPATOS, is hereby found GUILTY beyond
reasonable doubt of the crime of FRUSTRATED MURDER, defined and penalized under Article 248 in relation
to Article 6 of the Revised Penal Code, and, considering the presence of one (1) ordinary mitigating
circumstance of voluntary surrender which is not offset by any generic aggravating circumstance, applying the
Indeterminate Sentence Law he is hereby sentenced to suffer the penalty of from Six (6) Years and One (1)
day of prision mayor, as minimum to Twelve (12) Years and One (1) day to Fourteen (14) years and Eight (8)
Months of reclusion temporal, as maximum, and to indemnify SOCRATES PLATERO in the amount
of P25,000.00 by way of civil indemnity.
The accused shall pay the costs.
SO ORDERED. (Emphases supplied)
In two separate Informations, Special Prosecution Officer Gualberto J. Dela Llana charged both petitioner
and Victoriano Vidal[3] with murder and frustrated murder, committed as follows:
Criminal Case No. 17015 (Murder)
That on or about January 14, 1990, at Bayugan, Agusan del Sur, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, both public officers, being then an employee and Community
Environment Natural Resources Officer, respectively of the Department of Environment and Natural
Resources, assigned at Bayugan, Agusan del Sur, and committing the crime herein charged in relation to their
office, with treachery and evident premeditation and with intent to kill and with the use of firearm, did then
and there willfully, unlawfully and feloniously attack and shoot Leonardo Cortez, Municipal Mayor of Bayugan,
Agusan del Sur, hitting him at the vital parts of his body and inflicting upon said Leonardo Cortez mortal
wounds which caused his instantaneous death, to the damage and prejudice of the victims heirs.
CONTRARY TO LAW.[4]
Criminal Case No. 17016 (Frustrated Murder)
That on or about January 14, 1990, at Bayugan, Agusan del Sur, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, both public officers, being then an employee and Community

Environment Natural Resources Officer, respectively of the Department of Environment and Natural
Resources, assigned at Bayugan, Agusan del Sur and committing the crime herein charged in relation to their
office, with intent to kill and with the use of firearm, did then and there willfully, unlawfully and feloniously
attack and shoot one Socrates Platero, hitting him at his left leg and inflicting upon said Socrates Platero
mortal wound which could have caused his death had it not been for the timely medical assistance given him
to the damage and prejudice of said victim.
CONTRARY TO LAW.
On arraignment, petitioner pleaded not guilty.[5] Forthwith, trial ensued.[6]
The case for the prosecution is woven basically on the testimony of Socrates Platero as follows: On
January 14, 1990, at 8:00 oclock in the evening, witness Platero and Mayor Leonardo Cortez of Bayugan,
Agusan Del Sur were on their way home from Butuan City.[7] En route, the patrol car they were riding ran out
of gasoline, prompting them to stop at the Bureau of Internal Revenue (BIR) Monitoring Station, Barangay
Maygatasan, Bayugan. With no gasoline to spare, Station Guard Pfc. Michael Gatillo accompanied them to the
nearby Department of Environment and Natural Resources (DENR) checkpoint.[8] There, they found Pacheco
Tan. Pfc. Gatillo approached Tan and requested for extra gasoline. Suddenly, Tan ran towards the
guardhouse.[9] After a few seconds, Platero heard a gunshot originating therefrom. The bullet hit Mayor
Cortez, causing him to collapse to the ground.[10] Thereupon, Platero saw petitioner Raul Zapatos, holding an
armalite in a firing position. Platero immediately retaliated and an exchange of gunfire ensued. During this
time, Platero tried to pull Mayor Cortez away from the crossfire. Plateros foot was hit.[11] He did not see who
shot him.[12] He then took cover on the other side of the highway.
Pfc. Gatillo testified that he was the policeman assigned at the BIR Monitoring Station on January
14,1990.[13] At about 8:00 oclock in the evening, he accompanied Platero and Mayor Cortez to the DENR
checkpoint to ask for some gasoline.[14] Upon seeing Tan, he asked him about petitioners whereabouts. Tan
replied that petitioner was sleeping inside the guardhouse.[15] Mayor Cortez also inquired from Tan where
petitioner was. Tan merely reiterated his answer.[16] Then Tan walked towards the guardhouse and in a
matter of seconds, he (witness Gatillo) saw petitioner firing his gun at Mayor Cortez. [17] Mayor Cortez fell to
the ground with blood oozing from his mouth.[18]Platero attempted to pull Mayor Cortez but another shot was
fired and this time, the Mayor was hit on the leg. While running across the highway to take cover, Platero was
also hit on the leg.[19] When the shooting stopped, he (Gatillo) brought Platero and Mayor Cortez to Bayugan
Community Hospital.[20]
Dr. Romeo Cedeo, Chief of the Bayugan Community Hospital, declared that when he attended to Mayor
Cortez on January 14, 1990,[21] the latter was already dead. He did not conduct an autopsy or examine the
wounds. He merely conducted a superficial examination which showed that four (4) wounds had been
inflicted upon Mayor Cortez one in the vicinity of the left nipple, one on the right axillary region, one on the
right knee, and another on the left iliac region.[22]
Building his case on the justifying circumstance of self-defense, petitioner presented a different
version. He testified that he was the Team Leader of the DENR Sentro Striking Force whose primary duty is to
seize illegally-cut forest products.[23] He held office at the DENR checkpoint, Barangay Maygatasan, Bayugan,
Agusan del Sur. On January 14, 1990, at about 7:00 oclock in the evening, he instructed Pacheco Tan, his coworker, to man the checkpoint as he was sleepy. He also directed Tan to wake him up should there be any
problem.[24] While sleeping, a burst of gunshots awakened him. He saw that the guardhouse was being
riddled with bullets,[25] piercing the walls and hitting some objects inside. Immediately he dropped to the floor
and took the armalite rifle from the locker located under his bed.[26] Hiding behind a barricade, he fired at his
attackers. Thereafter, fearing for his life, he broke the flooring of the guardhouse and crawled through the
hollow portion underneath to reach its back door.[27] He walked away until he reached Nilo Libres' house

where he stayed overnight.[28] The next day, he heard the news that Mayor Cortez was killed.[29] He
immediately surrendered himself and his armalite rifle to Sgt. Benjamin Amorio of the Philippine Army
Brigade, Prosperidad, Agusan del Sur.[30]
Pacheco Tan corroborated petitioners testimony. On the same date and time, petitioner, who was about
to sleep, instructed Tan to take the first shift. While petitioner was sleeping, Pfc. Gatillo, Mayor Cortez and
Platero arrived.[31] Pfc. Gatillo approached Tan and inquired where petitioner was. He replied that
petitioner was sleeping inside the guardhouse.[32] Pfc. Gatillo returned to the parked patrol car where Mayor
Cortez and Platero were waiting. Tan noticed that there were other policemen within the vicinity.[33] Then,
Mayor Cortez and Platero, each carrying an M-16 rifle, alighted from the vehicle and approached the
guardhouse. Again, Mayor Cortez asked Tan where petitioner was. Again Tan gave him the same
answer.[34] Mayor Cortez reacted in disbelief, saying ah. Suddenly, Tan heard a burst of gunshots directed at
the guardhouse. He immediately ducked on the ground and then ran towards the pasillo leading to the back
of the guardhouse.[35] Seized by fear, he was not able to wake petitioner.[36] He ran away and, upon reaching a
banana plantation, stayed there until morning.[37] The next day, he went to the Chief of Police of Sibagat,
Agusan del Sur.[38] He was brought to the Bayugan Police Station so that he could give a statement regarding
the incident. But he refused to sign the typewritten statement prepared by the Bayugan Police because it
pinpoints to petitioner as the killer of Mayor Cortez. He was against such statement because he did not see
petitioner shot Mayor Cortez.[39]
NBI Agent Virgilio Decasa testified that upon inspecting the DENR checkpoint at Maygatasan, Bayugan, he
observed that it was riddled with bullets.[40] The locations of the bullet holes showed that those responsible
surrounded the building.[41] From his investigation, it was Mayor Cortez, together with Platero and Pfc. Gatillo,
who approached the DENR checkpoint. They were followed by several policemen who were instructed by
Mayor Cortez to prepare for any eventuality.[42] He was not able to collect the guns and have them tested by
the NBIs ballistic technician because the policemen refused to submit themselves to an investigation. [43] He
recommended that the cases filed against petitioner be reviewed and/or investigated to prevent injustice. [44]
Lazarito Estorque recounted that on January 14, 1990, at about 5:30 oclock in the afternoon, he and
Mayor Cortez were having a drinking session at the house of his compadreBong Kadao. Mayor Cortez,
together with his three (3) policemen, left Kadaos house at 7:00 o clock in the evening.[45]
Consequently, two Informations for frustrated murder and murder, docketed as Criminal Cases Nos. 414
and 415, were filed with the Regional Trial Court (RTC), Branch VII, Bayugan Agusan del Sur. Pursuant to this
Courts Resolution dated August 2, 1990, the venue was transferred to the RTC, Branch V, Butuan City where
the cases were docketed as Criminal Cases Nos. 4194 and 4195. Before petitioner could be arraigned, the
private prosecutor filed with the RTC a motion to refer the cases to the Sandiganbayan but it was denied in an
Order dated March 11, 1991.[46] Petitioner was then arraigned and pleaded not guilty to both charges.[47]
The private prosecutor filed with this Court a petition for certiorari questioning the order of the RTC, but
the same was dismissed.[48] This time, the public prosecutor filed with the RTC an Omnibus Motion to
Dismiss[49] on the ground of lack of jurisdiction. On August 9, 1991, the RTC issued an Omnibus
Order[50] granting the motion and dismissing Criminal Cases Nos. 4194 and 4195. This prompted Special
Prosecution Officer Dela Llana to file with the Sandiganbayan the two Informations quoted above.
In this petition, petitioner ascribes to the Sandiganbayan the following errors:
A. THE HONORABLE SANDIGANBAYAN GRAVELY ERRED IN NOT FINDING THAT DOUBLE JEOPARDY
HAS ALREADY ATTACHED AND THAT IT HAD NO JURISDICTION OVER THE CASES;

B. THE HONORABLE SANDIGANBAYAN ERRED IN FINDING THAT PETITIONER IS GUILTY OF THE

CRIMES CHARGED DESPITE OVERWHELMING ABSENCE OF PHYSICAL EVIDENCE TO ESTABLISH HIS
GUILT BEYOND REASONABLE DOUBT;
C. THE HONORABLE SANDIGANBAYAN GRAVELY ERRED IN NOT GIVING DUE CREDENCE TO THE
FINDINGS OF THE NATIONAL BUREAU OF INVESTIGATION AS WELL AS THE TESTIMONY OF NBI
INVESTIGATING AGENT VIRGILIO M. DECASA;
D. THE HONORABLE SANDIGANBAYAN ERRED IN GIVING FULL FAITH AND CREDENCE TO THE
CONTRADICTING TESTIMONIES OF PROSECUTION WITNESSES SOCRATES PLATERO AND MICHAEL
GATILLO;
E. THE HONORABLE SANDIGANBAYAN GRAVELY ERRED IN FINDING THAT THERE EXISTS PROOF
BEYOND REASONABLE DOUBT THAT PETITIONER IS GUILTY OF THE CRIMES CHARGED;
F. GRANTING WITHOUT ADMITTING LIABILITY FOR THE CRIMES CHARGED, THE HONORABLE
SANDIGANBAYAN GRAVELY ERRED IN NOT FINDING THAT PETITIONER ACTED IN SELF-DEFENSE;
AND
G. GRANTING WITHOUT ADMITTING GUILT FOR THE CRIMES CHARGED, THE HONORABLE
SANDIGANBAYAN GRAVELY ERRED IN FINDING THE EXISTENCE OF TREACHERY.
The People counters that since petitioner was on a 24-hour duty as Team Leader of the DENR Sentro
Striking Force when the crimes took place, it follows that his acts were committed in relation to his
office. Necessarily, the previous dismissal of his cases by the RTC could not result in double jeopardy.[51] The
presentation of petitioners weapon or the autopsy report is immaterial considering that both Pfc. Gatillo and
Platero positively identified petitioner as the culprit.[52] Moreover, the inconsistencies in the testimonies of the
prosecution witnesses do not in any manner affect their credibility for they merely involve immaterial
matters.[53] Lastly, petitioners plea of self-defense cannot be sustained because of the absence of all its
requisites.[54]
The petition is impressed with merit.
First, we shall resolve the issues of jurisdiction and double jeopardy. Petitioner assails the jurisdiction of
the Sandiganbayan over his cases on the ground that the crimes imputed to him were not committed in
relation to his office.
Well-settled is the principle that the jurisdiction of a court to try a criminal case is determined by the law
in force at the time of the institution of the action. [55] Here, the applicable law is Presidential Decree (P.D.) No.
1606,[56] as amended by P.D. No. 1861.[57] Section 4, paragraph (a) thereof provides:
SECTION 4. Jurisdiction. The Sandiganbayan shall exercise:
a)

Exclusive original jurisdiction in all cases involving:

(1) Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code;
(2) Other offenses or felonies committed by public officers and employees in relation to their
office, including those employed in government-owned or controlled corporations, whether simple or

complexed with other crimes, where the penalty prescribed by law is higher than prision correccional or
imprisonment for six (6) years, or a fine of P6,000.00 x x x. (Emphasis supplied)
In a catena of cases decided under the aegis of P.D. No. 1606, such as Aguinaldo vs. Domagas,[58] Sanchez
vs. Demetriou,[59] Natividad vs. Felix,[60] and Republic vs. Asuncion,[61] we ruled that two requirements must
concur under Sec. 4 (a) (2) for an offense to fall under the Sandiganbayan's jurisdiction, namely: (1) the
offense committed by the public officer must be in relation to his office; and (2) the penalty prescribed must
be higher than prision correccional or imprisonment for six (6) years, or a fine of P6,000.00. Obviously, the first
requirement is the present cause of discord between petitioner and the People.
An offense is deemed to be committed in relation to the accuseds office when such office is an element
of the crime charged or when the offense charged is intimately connected with the discharge of the official
function of the accused.[62] In Cunanan vs. Arceo,[63] we held:
In Sanchez vs. Demetriou [227 SCRA 627 (1993)], the Court elaborated on the scope and reach of the term
offense committed in relation to *an accused's+ office by referring to the principle laid down inMontilla vs.
Hilario [90 Phil 49 (1951)], and to an exception to that principle which was recognized in People vs.
Montejo [108 Phil 613 (1960)]. The principle set out in Montilla vs. Hilario is that an offense may be
considered as committed in relation to the accused's office if the offense cannot exist without the office
such that the office [is] a constituent element of the crime x x x. In People vs. Montejo, the Court,
through Chief Justice Concepcion, said that although public office is not an element of the crime of murder
in [the] abstract, the facts in a particular case may show that x x x the offense therein charged
is intimately connected with [the accused's] respective offices and was perpetrated while they were in the
performance, though improper or irregular, of their official functions. Indeed, [the accused] had no personal
motive to commit the crime and they would not have committed it had they not held their aforesaid offices.
. . .
The Informations filed with the Sandiganbayan allege that petitioner, then a public officer, committed
the crimes of murder and frustrated murder in relation to his office, i.e., as Community Environment and
Natural Resources Officer of the DENR.[64] It is apparent from this allegation that the offenses charged are
intimately connected with petitioners office and were perpetrated while he was in the performance of his
official functions. In its Resolution[65] dated August 25, 1992, the Sandiganbayan held that petitioner was on
duty during the incident; that the DENR Checkpoint was put up in order to prevent incursions into the forest
and wooded area; and that petitioner, as a guard, was precisely furnished with a firearm in order to resist
entry by force or intimidation. Indeed, if petitioner was not on duty at the DENR checkpoint on January 14,
1990, he would not have had the bloody encounter with Mayor Cortez and his men. [66] Thus, based on the
allegations in the Informations, the Sandiganbayan correctly assumed jurisdiction over the cases.
Significantly, while petitioner had already pleaded not guilty before the RTC, jeopardy did not attach as
it did not acquire jurisdiction. There can be no double jeopardy where the accused entered a plea in court
that had no jurisdiction.[67]
We now go to the substantial merits of the case.
After considering the records very closely, we are constrained to reject the evidence for the
prosecution. Jurisprudence is settled that whatever is repugnant to the standards of human knowledge,
observation and experience becomes incredible and lies outside judicial cognizance. Consistently, we ruled
that evidence, to be believed, must proceed not only from the mouth of a credible witness but must be
credible in itself as to hurdle the test of conformity with the knowledge and common experience of
mankind.[68] Here, the prosecution witnesses, Platero and Pfc. Gatillo, are not credible. Indeed, their
testimonies bear the earmarks of falsehood.

First, Plateros tale that Pacheco Tan, who was then on first shift at the DENR checkpoint that day,
suddenly ran towards the DENR Checkpoint when Pfc. Gatillo asked him for some gasoline simply does not
make sense. Why would a person run away with fear for such a simple request? Even former Sandiganbayan
Justice Regino Hermosisima, Jr.[69]was mystified by such a reaction, constraining him to delve deeper into the
matter, thus:
Q And you want the Court to understand that immediately after Gatillo asked for gasoline,
Pacheco Tan ran towards inside the BFD monitoring center?
A

Yes, he ran away, ran inside.

JUSTICE HERMOSISIMA:
Look, a person would not run away in fear without any reason why he did. Tell me now why did
Pacheco Tan run away?
A

I do not know.
xxx

xxx

xxx

Q Will you tell me whether Cael or you pointed your guns at Pacheco Tan?
A

No.

Q You did not. You cannot tell me why Pacheco Tan ran inside, why was he scared?
A

I do not know.[70]

Surely, we cannot accept a story that defies reason and leaves much to the imagination. Plateros failure
to lend a touch of realism to his tale leads us to the conclusion that he was either withholding an incriminating
information or was not telling the truth. As it turned out, Tan rushed towards the back of the guardhouse
because of the sudden burst of gunfire directed at that place. In short, he fled for his life.
Second, it is highly doubtful that obtaining some gasoline was the real object of Mayor Cortez, Platero and
Pfc. Gatillo in going to the DENR checkpoint. Strangely, their conduct, upon arriving at that place, showed
their concern more on the whereabouts of petitioner than whether there was gasoline to spare. Pfc. Gatillo,
testifying for the prosecution, admitted during cross-examination that he did not hear Mayor Cortez and
Platero ask for gasoline. All that he heard was Mayor Cortez inquiry regarding petitioners whereabouts, thus:
Q You said that Pacheco Tan went inside to get Raul Zapatos, is it not a fact that when Mayor
Cortez arrived at the DENR monitoring station, he asked Pacheco Tan where Raul Zapatos was?
A

Yes, sir.

Q And precisely Pacheco Tan told Mayor Cortez that Raul Zapatos is inside the room sleeping?
A

Yes sir.
xxx

xxx

xxx

Q But you did not hear at any time the conversation between Pacheco Tan and the late Mayor
Cortez, with Mayor Cortez asking Pacheco Tan for gasoline, is that right?
A

No, more Sir.

Q And at any time before the shooting incident you did not hear Socrates Platero asking Pacheco
Tan for gasoline, is that right?
A

No, sir.

xxx

xxx

xxx

Q As a matter of fact, the only thing you heard in reference to the accused Raul Zapatos was that
Mayor Cortez was looking for Zapatos because he wanted to talk with Zapatos, is that right?
A

Yes, sir.[71]

The above testimony strongly confirms Tans narration that Pfc. Gatillo and Mayor Cortez only asked him
where petitioner was.[72] Nothing was ever mentioned about the gasoline. Notably, Platero, in his Affidavit
executed the day after the incident, stated that he and the Mayor went to the DENR checkpoint because
Mayor Cortez wanted to see Raul Zapatos because he is the team leader of the DENR Monitoring Station.
Again, the gasoline was not alluded to.
Corollarily, this brings us into a quandary what could have been the reason why Mayor Cortez, Platero
and Pfc. Gatillo were looking for petitioner on the night of January 14, 1990? The records bear out that the
relationship between Mayor Cortez and petitioner was not friendly. There were several occasions when their
interests clashed Mayor Cortez, as the owner of a sawmill, and petitioner, as a forest law enforcer. In his
Sworn Statement[73] dated March 17, 1990, petitioner declared, among others, that previously, he
apprehended the Mayors men several times for illegally cutting and transporting flitches belonging to the
Mayor and his family, thus:
Q 20: After realizing that Mayor CORTEZ was the one who led the attack of the DENR CENTRO
Strike Force Headquarters, what could be the reason why the Mayor and his men attacked
your headquarters?
A

20: I believe that Mayor CORTEZ became angry with me because of the previous
apprehensions of illegally cut and transported flitches which belonged to them, I mean, to that
of Mayor CORTEZ family.

Q 21:
A

Why, did the then Mayor also engaged (sic) in logging?

21: In one instance, we apprehended a truckload of illegally transported flitches and the
document presented showed that they were consigned to the CORTEZ sawmill in Bayugan,
Agusan del Sur.

Q 22: Are there instances also that the mayor intervened in any way in the apprehensions of
these illegally cut and transported logs?
A

22: Sometime in September, 1989, when we apprehended a truck load of illegally cut and
transported flitches, Mayor CORTEZ requested that the truck carrying the flitches be turned
over to his custody which truck was the regular carrier of flitches consigned to their
sawmill. The request was granted by CENRO VIDAL and the proper documents for the turn
over of custody were properly made. After that, during the month of October, 1989, we again
apprehended the same truck previously turned over to the custody of Mayor again carrying
illegally cut and transported flitches which I believe angered the Mayor.
Also, three (3) days before the incident at the CENRO Strike Force Headquarters in Maygatasan, I
also had a confrontation with an Army soldier acting as Security of Mayor CORTEZ, one named
DANNY GESTA.

Q 23:
A

Will you narrate what that confrontation was all about?

23: On January 11, 1990, while I was outside of the DENR CENRO Strike Force Headquarters
repairing my motorcycle, a truck loaded with illegally cut flitches just passed our Headquarters
without stopping at our headquarters for inspection so when the truck came back, I stopped the

same truck and called the driver and asked him who is the owner of the flitches. The driver told
me that the flitches belonged to DANNY GESTA and when I asked him where he took the
flitches, he told me that he took the flitches to the sawmill of the CORTEZ. When I asked him
who escorted it, the driver told me that it was one named NONO so I told the driver to tell
NONO to come to our Headquarters so we could talk. On the following day, when I went to a
shop owned by MAWE RABUYA for consultation of my motorcycle, DANNY GESTA was there. I
requested MAWE RABUYA to take a look of my motorcycle for any defect and it was at this
instance that DANNY GESTA approached me and told me and to quote: UNSA MANG KA NGA
IMO MANG KONG IPAREPORT-REPORT SA IMO. WALA MANG GANI MAKAPA-REPORT ANG
CORONEL SA AKO. I then told and explained to DANNY GESTA that it was not him whom I
wanted to talk and report to me but NONO. DANNY GESTA suddenly stood up and told me and
to quote: PUTANG INA KA! BUK-ON NAKO NANG ULO NIMO. To avoid further argument, I told
MAWE that I better go and I left.
Q 24:
A

What did you do after that confrontation with DANNY GESTA?

24: Because of what DANNY GESTA told me, I stayed at the Headquarters at Maygatasan,
Bayugan until the incident on January 14, 1990 when our Headquarters was attacked.

Even NBI Agents Atty. Decasa and Ali C. Vargas found that Mayor Cortez had an ulterior motive of
revenge against petitioner, thus:
x x x The investigating agents are inclined to believe that the late Mayor Cortez must have some ulterior
motive of revenge in going to the headquarters at that late hour of the night, armed with high-powered
guns, together with policemen and bodyguards, and under the influence of liquor, especially so that it is of
public knowledge that he had been harboring hatred towards ZAPATOS who had exhibited antagonism to
his illegal activities.[74]
Third, the account of Pfc. Gatillo and Platero that petitioner suddenly came out of the guardhouse and
shot Mayor Cortez a matter of seconds after Tan ran towards the place is incredible.[75] For one, both the
prosecution and the defense witnesses testified that petitioner was sleeping inside the guardhouse. For
another, Tan did not have the chance to wake petitioner prior to the shoot-out. The prosecution witnesses
admitted this fact.
Even before Tan could enter the guardhouse, he already heard the burst of gunfire coming from outside
of the checkpoint, prompting him to immediately run towards the backside of the guardhouse. Now, to say
that petitioner suddenly sprang from his slumber and shot Mayor Cortez without any reason is certainly at
odds with common experience.
Contrary to the findings of the Sandiganbayan, the totality of the contradictions, inconsistencies and flaws
in the declarations of Platero and Pfc. Gatillo does not simply refer to minor or inconsequential details which
may be justifiably overlooked, nor are they honest lapses which do not affect or impair the intrinsic value of
their testimony. They relate instead to points material and essential to establish petitioners culpability. The
obliquity that pervades the prosecutions account of the incident creates the impression that it was rehearsed
and concocted.
In contrast, the consistent testimonies of the defense witnesses, as well as the existing physical evidence,
lend strong support to petitioners plea of self-defense.
It is basic that for self-defense to prosper, the following requisites must concur: (1) there must be
unlawful aggression by the victim; (2) that the means employed to prevent or repel such aggression were

reasonable; and (3) that there was lack of sufficient provocation on the part of the person defending
himself.[76]
All the aforestated requisites are present in this case. That there was unlawful aggression is clearly shown
by the bullet-riddled guardhouse. It speaks eloquently than a hundred witnesses.[77] We are convinced that
Mayor Cortez, Platero and Pfc. Gatillo insisted to know petitioners whereabouts and that upon learning that
he was sleeping, executed the tyrannical attack. That they went to the DENR checkpoint with ready police
back-up for any eventuality was proven not only by Pacheco Tan, but also by Lazarito Estorque and NBI
Agent Decasa. Clearly, they proceeded to the checkpoint not on a mission of peace.
Taking into consideration the number of the aggressors, the nature and quality of their weapons, and the
manner of the assault and the fact that petitioner was alone, we believe that petitioners use of an armalite
rifle to defend himself is reasonable.
Finally, that there was lack of sufficient provocation on petitioners part is evidenced by the testimonies of
the defense witnesses that he was sleeping inside the guardhouse prior to the initial shooting. Significantly,
no evidence whatsoever was presented showing that he assaulted or provoked his aggressors into attacking
him.
Petitioners act of surrendering himself and his weapon to the authorities immediately the day after the
incident dissipates any conjecture that he had a criminal mind when he fired his gun upon the victims. His
courage to face his accuser, in spite of the opportunity to flee, indicates his innocence.
Thus, while it is true that the "factual findings of the trial court are entitled to great weight and are even
conclusive and binding to this Court, this principle does not apply here. The findings of facts of the
Sandiganbayan are not sufficiently established by evidence, leaving serious doubts in our minds regarding the
culpability of petitioner.
In sum, we find that the prosecution failed to prove by evidence beyond reasonable doubt the guilt of
herein petitioner for murder and frustrated murder. What is apparent is that Mayor Cortez and his men were
the aggressors. Petitioner, who was just awakened by the gunfire, was justified in firing back at them. His act
is in accordance with mans natural instinct to save his life from impending danger. We cannot expect him to
simply retreat or wait for the bullet to hit and kill him.
WHEREFORE, the Decision dated March 27, 2001 of the Sandiganbayan is REVERSED and petitioner is
ACQUITTED of the crimes of murder and frustrated murder.
The Director of Prisons is hereby directed to cause the release of petitioner unless the latter is being
lawfully held for another crime and to inform this Court accordingly within ten (10) days from notice.
SO ORDERED.
Puno, (Chairman), Panganiban, Corona, and Carpio-Morales, JJ., concur.

[1]

"That which anyone should do for the safety of his own person is to be adjudged as having been done justly
in his own favor." See 1 Viada, 172, 5th edition.

[2]

Penned by Justice Nicodemo T. Ferrer and concurred in by Associate Justices Narciso S. Nario and Rodolfo G.
Palattao, Rollo at 46-81.

[3]

In the Sandiganbayan Order dated March 25, 1992, Victoriano Vidal was dropped from the Information
upon Motion of the Prosecution, thus:

Upon motion made in open court by Special Prosecution Officer Robert E. Kallos on the ground that the
Ombudsman has approved his finding and recommendation for the dropping of accused Victoriano
Vidal from the informations in Criminal Cases Nos. 17015 and 17016, let these cases be provisionally
dismissed with the express consent of the accused. x x x. Records at 337.
[4]

Records at 1-2.

[5]

TSN, March 26, 1992 at 19.

[6]

The prosecution presented Socrates Platero, Pfc. Michael Gatillo, Dr. Romeo Cedeo, and Marlyn Cortez as
its witnesses. Petitioner himself, Pacheco Tan, Atty. Virgilio Decasa, S/Sgt. Romulo Abelleja, and
Lazarito Estorque took the witness stand for the defense.

[7]

TSN, June 9, 1992 at 18.

[8]

Id. at 19-20.

[9]

Id. at 25.

[10]

Id. at 26-27.

[11]

Id. at 28.

[12]

Id. at 29.

[13]

TSN, March 26, 1992 at 20.

[14]

Id. at 24. The DENR Checkpoint was just 100 meters away from the BIR Monitoring Station.

[15]

Id. at 26-27.

[16]

Id. at 44.

[17]

Id. at 29.

[18]

Id. at 39.

[19]

Id. at 39.

[20]

Id. at 43-44.

[21]

TSN, June 9, 1992 at 7.

[22]

Id. at 8.

[23]

TSN, November 23, 1993 at 3.

[24]

Id. at 6.

[25]

Id. at 7.

[26]

Id. at 8-9.

[27]

Id. at 15.

[28]

Id. at 16.

[29]

Id. at 18.

[30]

Id. at 25.

[31]

Id. at 58-59.

[32]

Id. at 60.

[33]

Id. at 67.

[34]

Id. at 61.

[35]

Id. at 62.

[36]

Id. at 63.

[37]

Id. at 64.

[38]

Id. at 69.

[39]

Id. at 70.

[40]

TSN, July 14, 1993 at 7.

[41]

Id. at 9-10.

[42]

Id. at 11.

[43]

Id. at 17-18.

[44]

Id. at 21.

[45]

TSN, November 22, 1993 at 34-36.

[46]

Records at 123-133.

[47]

Id. at 137.

[48]

Resolution dated April 25, 1991, Records at 140.

[49]

Records at 147.

[50]

Id. at 149.

[51]

Rollo at 145-146.

[52]

Id. at 147-148.

[53]

Id. at 154.

[54]

Id. at 156-158.

[55]

Alarilla vs. Sandiganbayan, G.R. No. 136806, August 22, 2000, 338 SCRA 485.

Presidential Decree No. 1486 created the Sandiganbayan. It took effect on June 11, 1978. Thereafter, the
following laws on the Sandiganbayan, in chronological order, were enacted:
1)

P.D. No. 1606 which took effect on December 10, 1978.

2)

Section 20 of Batas Pambansa Bilang 129.

3)

P.D. No. 1860 which took effect on January 14, 1983.

4)

P.D. No. 1861 which took effect on March 23, 1983.

5)

Republic Act No. 7975 which was approved on March 30, 1995 and took effect on May 16, 1995.

6)

R.A. No. 8249 which was approved on February 5, 1997.

[56]

REVISING PRESIDENTIAL DECREE NO. 1486 CREATING A SPECIAL COURT TO BE KNOWN AS

SANDIGANBAYAN AND FOR OTHER PURPOSES. It took effect on December 10, 1978; See Republic vs.
Asuncion, G.R. No. 108208, March 11, 1994, 231 SCRA 211.

[57]

AMENDING THE PERTINENT PROVISIONS OF PRESIDENTIAL DECREE NO. 1606 AND BATAS PAMBANSA BLG.
129 RELATIVE TO THE JURISDICTION OF THE SANDIGANBAYAN AND FOR OTHER PURPOSES. It took
effect on March 23, 1983.

[58]

En Banc Resolution, G.R. No. 98452, September 26, 1991.

[59]

G.R. Nos. 111771-77, November 9, 1993, 227 SCRA 627.

[60]

G.R. No. 111616, February 4, 1994, 229 SCRA 680.

[61]

Supra.

[62]

Alarilla vs. Sandiganbayan, supra.

[63]

G.R. No. 116615, March 1, 1995, 242 SCRA 88.

[64]

The jurisdiction of a court is determined by the allegation in the complaint or information. (People vs.
Cawaling, G.R. No. 117970, July 28, 1998, 293 SCRA 267, citing Lim vs. Court of Appeals, G.R. No.
107898, December 19, 1995, 251 SCRA 408; Tamano vs. Ortiz, G.R. No. 126603, June 29, 1998, 291
SCRA 584; Chico vs. Court of Appeals, G.R. No. 122704, January 5, 1998, 284 SCRA 33.)

[65]

Records at 383-390.

[66]

With marked significance is petitioners revelation to Nilo Libres that the DENR check point was attacked by
the NPAs. When asked why he suspected the NPAs as the attackers, he said that Agusan del Sur was a
very critical area and that there were already many incidents that the NPAs made several attacks.
(TSN, November 23, 1993 at 16) Undoubtedly, even petitioner himself believed that he was firing back
at the NPAs in defense of the DENR Checkpoint.

[67]

Binay vs. Sandiganbayan, G.R. Nos. 120681-83 and 128136, October 1, 1999, 316 SCRA 65.

[68]

People vs. Perez, G.R. No. 119014, October 15, 1996, 263 SCRA 206.

[69]

Now a member of the Judicial and Bar Council.

[70]

TSN, June 9, 1992 at 38 and 43.

[71]

TSN, March 26, 1992 at 44-45.

[72]

TSN, November 22,1993 at 60-61.

[73]

Folder of Exhibits at 201.

[74]

Exh. 3, Progress Report dated April 19, 1990 of Agts. Virgilio M. Decasa and Ali C. Vargas at 4.

[75]

Pfc. Gatillo testified:

JUSTICE AMORES:
Q

When Mayor Cortez arrived, did the accused wake up?

No, sir, Mayor Cortez and Pacheco Tan were still talking.

And what was Zapatos doing while they were talking?

After Mayor Cortez and Pacheco Tan talked and then Pacheco Tan went inside, then suddenly Zapatos
came out and shot Mayor Cortez.

How many minutes had elapsed from the time Pacheco Tan entered that place to the time that the
accused shot Mayor Cortez?

A matter of seconds. As a matter of fact when Pacheco Tan pushed the door opened then I saw the
accused holding the gun and shot Mayor Cortez.

When Tan pushed the door what did Tan say if any to Zapatos?

None, sir. (TSN, March 26, 1992 at 29.)

[76]

People vs. Bernal, G.R. No. 101332, March 13, 1996, 254 SCRA 659; People vs. Gregorio, G.R. Nos.
109614-15, March 29, 1996, 255 SCRA 380.

[77]

People vs. Sacabin, G.R. No. L-36638, June 28, 1974, 57 SCRA 707; People vs. Demeterio, G.R. No. L-48255,
September 30, 1983, 124 SCRA 914.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-23734

April 27, 1967

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
TEODORO SABIO, defendant-appellant.
Antonio T. de Jesus for defendant and appellant.
Office of the Solicitor General for plaintiff and appellee.
BENGZON, J.P. J.:
At about six p.m. of April 12, 1963, Teodoro Sabio was squatting with a friend, Irving Jurilla, in the plaza of
Central Manapla, Manapla, Negros Occidental. Romeo Bacobo and two others Ruben Miosa and Leonardo
Garcia approached them. All of them were close and old friends.
Romeo Bacobo then asked Sabio where he spent the holy week. At the same time, he gave Sabio a "footkick
greeting", touching Sabio's foot with his own left foot. Sabio thereupon stood up and dealt Romeo Bacobo a
fist blow, inflicting upon him a lacerated wound, inch long, at the upper lid of the left eye. It took from 11 to
12 days to heal and prevented Romeo Bacobo from working during said period as employee of Victorias
Milling Co., Inc.
Sabio was thereafter prosecuted for less serious physical injuries. In the municipal court he was found guilty
and sentenced to imprisonment of 5 months and 10 days plus costs. In the Court of First Instance, however, to
which he appealed, he was found guilty but with the mitigating circumstance of provocation, so that the
penalty imposed was one (1) month and five (5) days of arresto mayor plus indemnity of P100 and
costs.1wph1.t
Defendant appealed from this judgment to Us to raise as a pure question of law the sole issue of whether,
under the facts is determined below, a fist blow delivered in retaliation to a "foot-kick greeting" is an act of
self-defense and/or justifying circumstance entitling the accused to acquittal and relief from all liabilities, civil
and criminal.
A primordial requisite for self-defense is unlawful aggression (Art. 11, Rev. Penal Code). And for unlawful,
aggression to be present, there must be real danger to life or personal safety (People vs. Beatriz Yuman, 61
Phil. 786). For this reason, a mere push or a shove, not followed by other acts, has been held insufficient to
constitute unlawful aggression (People vs. Yuman, supra). A playful kick the lower court rejected
defendant's claim that it was a "vicious kick" at the foot my way of greeting between friends may be a
practical joke, and may even hurt; but it is not a serious or real attack on a person's safety. Appellant's
submission that it amounts to unlawful aggression cannot therefore be sustained. As rightly found by the
Court of First Instance, such kick was only a mere slight provocation.

Reference is made to a decision of the Supreme Court of Spain (prom. Jan. 20, 1904, 72 Jur. Crim. 123-125),
considering a slap on the face an unlawful aggression. No parity lies between said case and the present. Since
the face represents a person and his dignity, slapping, it is a serious personal attack. It is a physical assault
coupled with a willful disregard, nay, a defiance, of in individual's personality. It may therefore be frequently
regarded as placing in real danger a person's dignity, rights and safety. A friendly kick delivered on a person's
foot obviously falls short of such personal aggression.
Wherefore, the judgment appealed from is hereby affirmed in toto. Costs against appellant. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-65913 July 28, 1986
RENATO B. TORRES, petitioner,
vs.
THE HONORABLE SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, respondents.
FERIA, J.:
This is a petition for review on certiorari of the decision of the Sandiganbayan dated December 12, 1983,
convicting petitioner Renato B. Torres of homicide, the dispositive portion of which reads as follows:
WHEREFORE, accused Patrolman Renato B. Torres y Barcena is hereby found guilty beyond
reasonable doubt as principal of the crime of Homicide, defined and penalized under Article
249 of the Revised Penal Code. Appreciating the mitigating circumstances of voluntary
surrender and the victim's sufficient provocation or threat immediately preceeding the act sued
upon and without any aggravating circumstance to offset the same, the penalty of reclusion
temporal prescribed by law is reduced by one degree to prision mayor, pursuant to paragraph 5
of Article 64 of the Revised Penal Code. Applying the Indeterminate Sentence Law, the said
accused is hereby sentenced to suffer an indeterminate penalty, ranging from FOUR (4) YEARS
and TWO (2) MONTHS of prision correccionalas minimum, to EIGHT (8) YEARS and ONE (1) DAY
of prision mayor, as maximum; to pay the legal heirs of the deceased, Danilo Rivera y Pumicpic,
the amount of P2,920.00 as actual damages; P24,000.00 for the unrealized net income or lost
earning capacity of said deceased for a period of ten (10) years; and P15,000.00 as indemnity
for the death of the latter.
The statement of facts summarized by the Solicitor General in his Comment, which was later considered as his
Memorandum, is not disputed by petitioner.
Petitioner Renato Torres became a member of the Metropolitan Police Force, Southern Police District on
March 16, 1980. In the afternoon of April 5, 1982, he and another policeman, Corporal Ruben Onelia, were
assigned to direct traffic at the corner of C. Jose Street and Epifanio de los Santos Avenue (EDSA) in Pasay City.
At about 5:30 p.m., petitioner saw the victim Danilo Rivera his motorcycle in a zigzag manner along C. Jose
Street and then along EDSA. Shortly after the victim came out of C. Jose Street, petitioner called his attention
and commanded him to pull over to the side. The victim questioned his apprehension. Petitioner approached
him and pointed out that he was driving in a zigzag fashion. He observed that the victim was either drunk or
high on drugs because of his red eyes. The victim replied that he was not violating any traffic regulation. At
this juncture, the discussion between the two became more heated. Petitioner required the victim to produce
his driver's license. The victim refused to hand it over. Petitioner threatened to take him to the police station.
He went closer to the victim who then dismounted from his motorcycle. Petitioner insisted that the victim go
with him to the police station but the victim refused to budge. When petitioner reiterated his command, the

victim retorted that he was delaying him in his work. Nevertheless, petitioner disregarded his remark and
continued trying to force the victim to go with him to the police station.
At this point, the victim defied the petitioner by pulling out from his pants pocket a bladed knife commonly
known as "tusok", which is six inches in length, including the two-inch handle. The victim lunged at petitioner
who was two meters away. Petitioner moved back, drew his gun and warned the victim that he will shoot if he
(the victim) attacked again. Petitioner noticed that the victim was not standing steady. When he attempted a
second thrust, the victim lost his balance. At that instant, petitioner shot him at the back. When the victim fell,
petitioner immediately hailed a taxi and took the victim to the Pasay City General Hospital. He then left for the
police headquarters to surrender. He placed himself under the custody of Colonel Alfredo Angeles, chief of the
Investigation Division. He turned over to him his service revolver and the knife carried by the victim. In the
meantime, the victim died and was duly autopsied by Dr. Renato C. Bautista. He noted the cause of death in
his report (Exh. A): Hemorrhage, profuse, secondary to gunshot wound; Back, left side. After due investigation,
petitioner was charged with homicide two days later, or on April 7, 1982 (tsn, pp. 4-7, July 28, 1982; pp. 4-20,
24-29, 31-32; May 9, 1983; pp. 9-10, July 19, 1983; Rec. p. 1).
On April 7, 1982, petitioner was charged with homicide to which he pleaded not guilty. On December 12,
1983, respondent Sandiganbayan convicted petitioner. It ruled that the shooting and killing of the deceased
was not attended by any justifying circumstance; that the true happenings preceding the shooting belie and
militate against self-defense or fulfillment of duty; that at most, petitioner was entitled to the mitigating
circumstance of sufficient provocation or threat, apart from voluntary surrender, but not to total absolution of
liability.
Petitioner did not file any motion for reconsideration with respondent Sandiganbayan. Instead, he filed with
this Court a petition for review on certiorari on January 30, 1984 alleging that the Sandiganbayan erred (a)
when it failed to consider in favor of petitioner the elements of unlawful aggression and reasonable necessity
of the means used to repel it; (b) when it dismissed outright petitioner's theory of self-defense just because he
did not suffer any scratch; and (c) when it convicted petitioner despite the fact that there was doubt as to his
guilt, hence no civil damages should be awarded.
The Solicitor General submits that the facts prove the existence of unlawful aggression on the part of the
deceased, since it is undisputed that the deceased attacked petitioner twice with a four-inch bladed knife; that
unlawful aggression is clearly manifest since the physical assaults against petitioner placed his life in actual
peril (People vs. Sumicad, 56 Phil. 647); that in determining the existence of unlawful aggression, it does not
matter if the attacks have no predictable success; that, moreover, it is not necessary for petitioner to be
wounded first to prove the existence of unlawful aggression, it being sufficient that the aggression be
attempted so as to give rise to the right to prevent it (People vs. Batungbacal, 37 Phil. 382; People vs. Hitosis,
55 Phil. 298).
We agree with petitioner and the Solicitor General that the first requisite of the justifying circumstance of selfdefense unlawful aggression - is present in the case at bar (Article 11 [l] of the Revised Penal Code). There is
no question that the third requisite - lack of sufficient provocation on the part of the person defending himself
- is also present. Petitioner was merely acting in the performance of his duty as a traffic policeman when he
tried to arrest the deceased for violating a traffic regulation. In fact, respondent Sandiganbayan appreciated
the victim's sufficient provocation or threat immediately preceding the act sued upon as a mitigating
circumstance together with petitioner's voluntary surrender.
The principal issue is whether or not the second requisite reasonable necessity of the means employed to
prevent or repel the unlawful aggression - is present. On this point the Solicitor General agrees with

respondent Sandiganbayan that petitioner did not use reasonable means to repel the attack of the deceased.
When the deceased lunged at petitioner the second time, he stumbled and even went past petitioner. At that
instant, petitioner could have just struck at the deceased with his gun, or at worse, aimed his gun at a nonvital part of his body to overcome his resistance to arrest. However, petitioner chose to fire at the back of the
deceased, thus killing him almost instantly. The Solicitor General invokes the ruling in People vs. Oanis (74 Phil.
257, 262), to the effect that a peace officer is never justified in using unnecessary force in effecting arrests or
in treating with wanton violence the arrested person or in resorting to dangerous means when the arrest
could be effected otherwise. This doctrine was restated in the Rules of Court thus: "No unnecessary or
unreasonable force shall be used in making an arrest, and the person arrested shall not be subject to any
greater restraint than is necessary for his detention. " (Sec. 2 of Rule 109, subsequently Rule 113). It is
worthwhile noting that the rule was made stricter in Sec. 2, Rule 113 of the 1985 Rules on Criminal Procedure
thus: "No violence or unnecessary force shall be used in making an arrest . . . "
We agree with the Solicitor General. In the case of People vs. De Jesus, this Court ruled that:
With the deceased shown to be the aggressor as against Yalong, the reasonableness of the
means used by Yalong to repel the aggression may however, not be assessed in his favor. The
deceased was in a state of drunkenness, so he was not as dangerous as he would if he had been
sober. His aim proved faulty and easily evaded as shown by the fact that Yalong was not hit by
the stab attempts blows directed against him. At best, We can grant incomplete self-defense in
his favor, the necessity of the means he used to repel the aggression not appearing to Us clearly
reasonable.11 (People vs. De Jesus, November 19, 1982, 118 SCRA 616, 627)
In the case at bar, petitioner testified as follows:
Q What happened after he stabbed you?
A I moved back and then I drew my gun. I shouted at him, 'don't continue doing
that., I will shoot you.'
Q Then what did he do?
A But he did not heed my warning and he continued lunging at me. And maybe
because he was somewhat drunk or somewhat high in drugs, he was not steady
and he was - outbalanced and so, when he made that thrust, he lost his balance
in which time I simultaneously shot him." (TSN, pp. 13-14, May 9, 1983)
Under such circumstances, there was no need for petitioner to fire his gun at the deceased.
The penalty prescribed by law for homicide is reclusion temporal Considering the fact that two out of the three
requisites for the justifying circumstance of self-defense are present, Article 69 of the Revised Penal Code is
applicable and a penalty lower by two degrees may be imposed. The mitigating circumstance of sufficient
provocation on the part of the deceased may no longer be considered because it is deemed absorbed by his
unlawful aggression. But the mitigating circumstance of voluntary surrender may still be considered. Two
degrees lower than reclusion temporal is prison correccional
Applying the Indeterminate Sentence Law and in accordance with the recommendation of the Solicitor
General, petitioner is sentenced to suffer imprisonment for a minimum period of six months of arresto mayor
and a maximum period of two years of prision correccional.

WHEREFORE, with the modification of the penalty as above provided, the decision appealed from is affirmed,
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., Cruz and Paras, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 135981

January 15, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
MARIVIC GENOSA, appellant.
DECISION
PANGANIBAN, J.:
Admitting she killed her husband, appellant anchors her prayer for acquittal on a novel theory -- the "battered
woman syndrome" (BWS), which allegedly constitutes self-defense. Under the proven facts, however, she is
not entitled to complete exoneration because there was no unlawful aggression -- no immediate and
unexpected attack on her by her batterer-husband at the time she shot him.
Absent unlawful aggression, there can be no self-defense, complete or incomplete.
But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a form of cumulative
provocation that broke down her psychological resistance and self-control. This "psychological paralysis" she
suffered diminished her will power, thereby entitling her to the mitigating factor under paragraphs 9 and 10 of
Article 13 of the Revised Penal Code.
In addition, appellant should also be credited with the extenuating circumstance of having acted upon an
impulse so powerful as to have naturally produced passion and obfuscation. The acute battering she suffered
that fatal night in the hands of her batterer-spouse, in spite of the fact that she was eight months pregnant
with their child, overwhelmed her and put her in the aforesaid emotional and mental state, which overcame
her reason and impelled her to vindicate her life and her unborn child's.
Considering the presence of these two mitigating circumstances arising from BWS, as well as the benefits of
the Indeterminate Sentence Law, she may now apply for and be released from custody on parole, because she
has already served the minimum period of her penalty while under detention during the pendency of this
case.
The Case
For automatic review before this Court is the September 25, 1998 Decision1 of the Regional Trial Court (RTC) of
Ormoc City (Branch 35) in Criminal Case No. 5016-0, finding Marivic Genosa guilty beyond reasonable doubt of
parricide. The decretal portion of the Decision reads:
"WHEREFORE, after all the foregoing being duly considered, the Court finds the accused, Marivic
Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of Parricide as provided under Article
246 of the Revised Penal Code as restored by Sec. 5, RA No. 7659, and after finding treachery as a

generic aggravating circumstance and none of mitigating circumstance, hereby sentences the accused
with the penalty of DEATH.
"The Court likewise penalizes the accused to pay the heirs of the deceased the sum of fifty thousand
pesos (P50,000.00), Philippine currency as indemnity and another sum of fifty thousand pesos
(P50,000.00), Philippine currency as moral damages."2
The Information3 charged appellant with parricide as follows:
"That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of Isabel,
Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, with intent to kill, with treachery and evident premeditation, did then and there wilfully,
unlawfully and feloniously attack, assault, hit and wound one BEN GENOSA, her legitimate husband,
with the use of a hard deadly weapon, which the accused had provided herself for the purpose,
[causing] the following wounds, to wit:
'Cadaveric spasm.
'Body on the 2nd stage of decomposition.
'Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes protruding from its
sockets and tongue slightly protrudes out of the mouth.
'Fracture, open, depressed, circular located at the occipital bone of the head, resulting [in]
laceration of the brain, spontaneous rupture of the blood vessels on the posterior surface of
the brain, laceration of the dura and meningeal vessels producing severe intracranial
hemorrhage.
'Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of the
epidermis.
'Abdomen distended w/ gas. Trunk bloated.'
which caused his death."4
With the assistance of her counsel,5 appellant pleaded not guilty during her arraignment on March 3, 1997.6 In
due course, she was tried for and convicted of parricide.
The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG) summarizes the prosecution's version of the facts in this wise:
"Appellant and Ben Genosa were united in marriage on November 19, 1983 in Ormoc City. Thereafter,
they lived with the parents of Ben in their house at Isabel, Leyte. For a time, Ben's younger brother,
Alex, and his wife lived with them too. Sometime in 1995, however, appellant and Ben rented from
Steban Matiga a house at Barangay Bilwang, Isabel, Leyte where they lived with their two children,
namely: John Marben and Earl Pierre.

"On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving their salary. They
each had two (2) bottles of beer before heading home. Arturo would pass Ben's house before reaching
his. When they arrived at the house of Ben, he found out that appellant had gone to Isabel, Leyte to
look for him. Ben went inside his house, while Arturo went to a store across it, waiting until 9:00 in the
evening for the masiaorunner to place a bet. Arturo did not see appellant arrive but on his way home
passing the side of the Genosas' rented house, he heard her say 'I won't hesitate to kill you' to which
Ben replied 'Why kill me when I am innocent?' That was the last time Arturo saw Ben alive. Arturo also
noticed that since then, the Genosas' rented house appeared uninhabited and was always closed.
"On November 16, 1995, appellant asked Erlinda Paderog, her close friend and neighbor living about
fifty (50) meters from her house, to look after her pig because she was going to Cebu for a pregnancy
check-up. Appellant likewise asked Erlinda to sell her motorcycle to their neighbor Ronnie Dayandayan
who unfortunately had no money to buy it.
"That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus going to Ormoc
when he saw appellant going out of their house with her two kids in tow, each one carrying a bag,
locking the gate and taking her children to the waiting area where he was. Joseph lived about fifty (50)
meters behind the Genosas' rented house. Joseph, appellant and her children rode the same bus to
Ormoc. They had no conversation as Joseph noticed that appellant did not want to talk to him.
"On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor emanating from
his house being rented by Ben and appellant. Steban went there to find out the cause of the stench but
the house was locked from the inside. Since he did not have a duplicate key with him, Steban
destroyed the gate padlock with a borrowed steel saw. He was able to get inside through the kitchen
door but only after destroying a window to reach a hook that locked it. Alone, Steban went inside the
unlocked bedroom where the offensive smell was coming from. There, he saw the lifeless body of Ben
lying on his side on the bed covered with a blanket. He was only in his briefs with injuries at the back of
his head. Seeing this, Steban went out of the house and sent word to the mother of Ben about his son's
misfortune. Later that day, Iluminada Genosa, the mother of Ben, identified the dead body as that of
[her] son.
"Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at the police station at
Isabel, Leyte, received a report regarding the foul smell at the Genosas' rented house. Together with
SPO1 Millares, SPO1 Colon, and Dr. Refelina Cerillo, SPO3 Acodesin proceeded to the house and went
inside the bedroom where they found the dead body of Ben lying on his side wrapped with a bedsheet.
There was blood at the nape of Ben who only had his briefs on. SPO3 Acodesin found in one corner at
the side of anaparador a metal pipe about two (2) meters from where Ben was, leaning against a wall.
The metal pipe measured three (3) feet and six (6) inches long with a diameter of one and half (1 1/2)
inches. It had an open end without a stop valve with a red stain at one end. The bedroom was not in
disarray.
"About 10:00 that same morning, the cadaver of Ben, because of its stench, had to be taken outside at
the back of the house before the postmortem examination was conducted by Dr. Cerillo in the
presence of the police. A municipal health officer at Isabel, Leyte responsible for medico-legal cases,
Dr. Cerillo found that Ben had been dead for two to three days and his body was already decomposing.
The postmortem examination of Dr. Cerillo yielded the findings quoted in the Information for parricide
later filed against appellant. She concluded that the cause of Ben's death was 'cardiopulmonary arrest
secondary to severe intracranial hemorrhage due to a depressed fracture of the occipital [bone].'

"Appellant admitted killing Ben. She testified that going home after work on November 15, 1995, she
got worried that her husband who was not home yet might have gone gambling since it was a payday.
With her cousin Ecel Arao, appellant went to look for Ben at the marketplace and taverns at Isabel,
Leyte but did not find him there. They found Ben drunk upon their return at the Genosas' house. Ecel
went home despite appellant's request for her to sleep in their house.
"Then, Ben purportedly nagged appellant for following him, even challenging her to a fight. She
allegedly ignored him and instead attended to their children who were doing their homework.
Apparently disappointed with her reaction, Ben switched off the light and, with the use of a chopping
knife, cut the television antenna or wire to keep her from watching television. According to appellant,
Ben was about to attack her so she ran to the bedroom, but he got hold of her hands and whirled her
around. She fell on the side of the bed and screamed for help. Ben left. At this point, appellant
packed his clothes because she wanted him to leave. Seeing his packed clothes upon his return home,
Ben allegedly flew into a rage, dragged appellant outside of the bedroom towards a drawer holding her
by the neck, and told her 'You might as well be killed so nobody would nag me.' Appellant testified that
she was aware that there was a gun inside the drawer but since Ben did not have the key to it, he got a
three-inch long blade cutter from his wallet. She however, 'smashed' the arm of Ben with a pipe,
causing him to drop the blade and his wallet. Appellant then 'smashed' Ben at his nape with the pipe as
he was about to pick up the blade and his wallet. She thereafter ran inside the bedroom.
"Appellant, however, insisted that she ended the life of her husband by shooting him. She supposedly
'distorted' the drawer where the gun was and shot Ben. He did not die on the spot, though, but in the
bedroom."7 (Citations omitted)
Version of the Defense
Appellant relates her version of the facts in this manner:
"1. Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to her marriage,
Marivic had graduated from San Carlos, Cebu City, obtaining a degree of Bachelor of Science in
Business Administration, and was working, at the time of her husband's death, as a Secretary to the
Port Managers in Ormoc City. The couple had three (3) children: John Marben, Earl Pierre and Marie
Bianca.
"2. Marivic and Ben had known each other since elementary school; they were neighbors in Bilwang;
they were classmates; and they were third degree cousins. Both sets of parents were against their
relationship, but Ben was persistent and tried to stop other suitors from courting her. Their closeness
developed as he was her constant partner at fiestas.
"3. After their marriage, they lived first in the home of Ben's parents, together with Ben's brother, Alex,
in Isabel, Leyte. In the first year of marriage, Marivic and Ben 'lived happily'. But apparently, soon
thereafter, the couple would quarrel often and their fights would become violent.
"4. Ben's brother, Alex, testified for the prosecution that he could not remember when Ben and
Marivic married. He said that when Ben and Marivic quarreled, generally when Ben would come home
drunk, Marivic would inflict injuries on him. He said that in one incident in 1993 he saw Marivic holding
a kitchen knife after Ben had shouted for help as his left hand was covered with blood. Marivic left the
house but after a week, she returned apparently having asked for Ben's forgiveness. In another
incident in May 22, 1994, early morning, Alex and his father apparently rushed to Ben's aid again and

saw blood from Ben's forehead and Marivic holding an empty bottle. Ben and Marivic reconciled after
Marivic had apparently again asked for Ben's forgiveness.
"Mrs. Iluminada Genosa, Marivic's mother-in-law, testified too, saying that Ben and Marivic married in
'1986 or 1985 more or less here in Fatima, Ormoc City.' She said as the marriage went along, Marivic
became 'already very demanding. Mrs. Iluminada Genosa said that after the birth of Marivic's two
sons, there were 'three (3) misunderstandings.' The first was when Marivic stabbed Ben with a table
knife through his left arm; the second incident was on November 15, 1994, when Marivic struck Ben on
the forehead 'using a sharp instrument until the eye was also affected. It was wounded and also the
ear' and her husband went to Ben to help; and the third incident was in 1995 when the couple had
already transferred to the house in Bilwang and she saw that Ben's hand was plastered as 'the bone
cracked.'
"Both mother and son claimed they brought Ben to a Pasar clinic for medical intervention.
"5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 'After we collected our
salary, we went to the cock-fighting place of ISCO.' They stayed there for three (3) hours, after which
they went to 'Uniloks' and drank beer allegedly only two (2) bottles each. After drinking they bought
barbeque and went to the Genosa residence. Marivic was not there. He stayed a while talking with
Ben, after which he went across the road to wait 'for the runner and the usher of the masiao game
because during that time, the hearing on masiao numbers was rampant. I was waiting for the ushers
and runners so that I can place my bet.' On his way home at about 9:00 in the evening, he heard the
Genosas arguing. They were quarreling loudly. Outside their house was one 'Fredo' who is used by Ben
to feed his fighting cocks. Basobas' testimony on the root of the quarrel, conveniently overheard by
him was Marivic saying 'I will never hesitate to kill you', whilst Ben replied 'Why kill me when I am
innocent.' Basobas thought they were joking.
"He did not hear them quarreling while he was across the road from the Genosa residence. Basobas
admitted that he and Ben were always at the cockpits every Saturday and Sunday. He claims that he
once told Ben 'before when he was stricken with a bottle by Marivic Genosa' that he should leave her
and that Ben would always take her back after she would leave him 'so many times'.
"Basobas could not remember when Marivic had hit Ben, but it was a long time that they had been
quarreling. He said Ben 'even had a wound' on the right forehead. He had known the couple for only
one (1) year.
"6. Marivic testified that after the first year of marriage, Ben became cruel to her and was a habitual
drinker. She said he provoked her, he would slap her, sometimes he would pin her down on the bed,
and sometimes beat her.
"These incidents happened several times and she would often run home to her parents, but Ben would
follow her and seek her out, promising to change and would ask for her forgiveness. She said after she
would be beaten, she would seek medical help from Dr. Dino Caing, Dr. Lucero and Dra. Cerillo. These
doctors would enter the injuries inflicted upon her by Ben into their reports. Marivic said Ben would
beat her or quarrel with her every time he was drunk, at least three times a week.
"7. In her defense, witnesses who were not so closely related to Marivic, testified as to the abuse and
violence she received at the hands of Ben.

'7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, testified that on November
15, 1995, he overheard a quarrel between Ben and Marivic. Marivic was shouting for help and through
the open jalousies, he saw the spouses 'grappling with each other'. Ben had Marivic in a choke hold. He
did not do anything, but had come voluntarily to testify. (Please note this was the same night as that
testified to by Arturo Busabos.8)
'7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe Barrientos, testified that he
heard his neighbor Marivic shouting on the night of November 15, 1995. He peeped through the
window of his hut which is located beside the Genosa house and saw 'the spouses grappling with each
other then Ben Genosa was holding with his both hands the neck of the accused, Marivic Genosa'. He
said after a while, Marivic was able to extricate he[r]self and enter the room of the children. After that,
he went back to work as he was to go fishing that evening. He returned at 8:00 the next morning.
(Again, please note that this was the same night as that testified to by Arturo Basobas).
'7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were living in Isabel, Leyte.
His house was located about fifty (50) meters from theirs. Marivic is his niece and he knew them to be
living together for 13 or 14 years. He said the couple was always quarreling. Marivic confided in him
that Ben would pawn items and then would use the money to gamble. One time, he went to their
house and they were quarreling. Ben was so angry, but would be pacified 'if somebody would come.'
He testified that while Ben was alive 'he used to gamble and when he became drunk, he would go to
our house and he will say, 'Teody' because that was what he used to call me, 'mokimas ta,' which
means 'let's go and look for a whore.' Mr. Sarabia further testified that Ben 'would box his wife and I
would see bruises and one time she ran to me, I noticed a wound (the witness pointed to his right
breast) as according to her a knife was stricken to her.' Mr. Sarabia also said that once he saw Ben had
been injured too. He said he voluntarily testified only that morning.
'7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified that in the afternoon
of November 15, 1995, Marivic went to her house and asked her help to look for Ben. They searched in
the market place, several taverns and some other places, but could not find him. She accompanied
Marivic home. Marivic wanted her to sleep with her in the Genosa house 'because she might be
battered by her husband.' When they got to the Genosa house at about 7:00 in the evening, Miss
Arano said that 'her husband was already there and was drunk.' Miss Arano knew he was drunk
'because of his staggering walking and I can also detect his face.' Marivic entered the house and she
heard them quarrel noisily. (Again, please note that this is the same night as that testified to by Arturo
Basobas) Miss Arano testified that this was not the first time Marivic had asked her to sleep in the
house as Marivic would be afraid every time her husband would come home drunk. At one time when
she did sleep over, she was awakened at 10:00 in the evening when Ben arrived because the couple
'were very noisy in the sala and I had heard something was broken like a vase.' She said Marivic ran
into her room and they locked the door. When Ben couldn't get in he got a chair and a knife and
'showed us the knife through the window grill and he scared us.' She said that Marivic shouted for
help, but no one came. On cross-examination, she said that when she left Marivic's house on
November 15, 1995, the couple were still quarreling.
'7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at PHILPHOS, Isabel,
Leyte. Marivic was his patient 'many times' and had also received treatment from other doctors. Dr.
Caing testified that from July 6, 1989 until November 9, 1995, there were six (6) episodes of physical
injuries inflicted upon Marivic. These injuries were reported in his Out-Patient Chart at the PHILPHOS
Hospital. The prosecution admitted the qualifications of Dr. Caing and considered him an expert
witness.'

xxx

xxx

xxx

'Dr. Caing's clinical history of the tension headache and hypertention of Marivic on twenty-three (23)
separate occasions was marked at Exhibits '2' and '2-B.' The OPD Chart of Marivic at the Philphos Clinic
which reflected all the consultations made by Marivic and the six (6) incidents of physical injuries
reportedwas marked as Exhibit '3.'
"On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say whether the
injuries were directly related to the crime committed. He said it is only a psychiatrist who is qualified to
examine the psychological make-up of the patient, 'whether she is capable of committing a crime or
not.'
'7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided, testified that about
two (2) months before Ben died, Marivic went to his office past 8:00 in the evening. She sought his
help to settle or confront the Genosa couple who were experiencing 'family troubles'. He told Marivic
to return in the morning, but he did not hear from her again and assumed 'that they might have settled
with each other or they might have forgiven with each other.'
xxx

xxx

xxx

"Marivic said she did not provoke her husband when she got home that night it was her husband who
began the provocation. Marivic said she was frightened that her husband would hurt her and she
wanted to make sure she would deliver her baby safely. In fact, Marivic had to be admitted later at the
Rizal Medical Centre as she was suffering from eclampsia and hypertension, and the baby was born
prematurely on December 1, 1995.
"Marivic testified that during her marriage she had tried to leave her husband at least five (5) times,
but that Ben would always follow her and they would reconcile. Marivic said that the reason why Ben
was violent and abusive towards her that night was because 'he was crazy about his recent girlfriend,
Lulu x x x Rubillos.'
"On cross-examination, Marivic insisted she shot Ben with a gun; she said that he died in the bedroom;
that their quarrels could be heard by anyone passing their house; that Basobas lied in his testimony;
that she left for Manila the next day, November 16, 1995; that she did not bother anyone in Manila,
rented herself a room, and got herself a job as a field researcher under the alias 'Marvelous Isidro'; she
did not tell anyone that she was leaving Leyte, she just wanted to have a safe delivery of her baby; and
that she was arrested in San Pablo, Laguna.
'Answering questions from the Court, Marivic said that she threw the gun away; that she did not know
what happened to the pipe she used to 'smash him once'; that she was wounded by Ben on her wrist
with the bolo; and that two (2) hours after she was 'whirled' by Ben, he kicked her 'ass' and dragged
her towards the drawer when he saw that she had packed his things.'
"9. The body of Ben Genosa was found on November 18, 1995 after an investigation was made of the
foul odor emitting from the Genosa residence. This fact was testified to by all the prosecution
witnesses and some defense witnesses during the trial.
"10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel, Leyte at the time of
the incident, and among her responsibilities as such was to take charge of all medico-legal cases, such

as the examination of cadavers and the autopsy of cadavers. Dra. Cerillo is not a forensic pathologist.
She merely took the medical board exams and passed in 1986. She was called by the police to go to the
Genosa residence and when she got there, she saw 'some police officer and neighbor around.' She saw
Ben Genosa, covered by a blanket, lying in a semi-prone position with his back to the door. He was
wearing only a brief.
xxxxxxxxx
"Dra. Cerillo said that 'there is only one injury and that is the injury involving the skeletal area of the
head' which she described as a 'fracture'. And that based on her examination, Ben had been dead 2 or
3 days. Dra. Cerillo did not testify as to what caused his death.
"Dra. Cerillo was not cross-examined by defense counsel.
"11. The Information, dated November 14, 1996, filed against Marivic Genosa charged her with the
crime of PARRICIDE committed 'with intent to kill, with treachery and evidence premeditation, x x x
wilfully, unlawfully and feloniously attack, assault, hit and wound x x x her legitimate husband, with the
use of a hard deadly weapon x x x which caused his death.'
"12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and 23 September 1997,
12 November 1997, 15 and 16 December 1997, 22 May 1998, and 5 and 6 August 1998.
"13. On 23 September 1998, or only fifty (50) days from the day of the last trial date, the Hon.
Fortunito L. Madrona, Presiding Judge, RTC-Branch 35, Ormoc City, rendered a JUDGMENT finding
Marivic guilty 'beyond reasonable doubt' of the crime of parricide, and further found treachery as an
aggravating circumstance, thus sentencing her to the ultimate penalty of DEATH.
"14. The case was elevated to this Honorable Court upon automatic review and, under date of 24
January 2000, Marivic's trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a Motion to Withdraw as
counsel, attaching thereto, as a precautionary measure, two (2) drafts of Appellant's Briefs he had
prepared for Marivic which, for reasons of her own, were not conformed to by her.
"The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the entry of
appearance of undersigned counsel.
"15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20 January 2000, to the
Chief Justice, coursing the same through Atty. Teresita G. Dimaisip, Deputy Clerk of Court of Chief
Judicial Records Office, wherein she submitted her 'Brief without counsels' to the Court.
"This letter was stamp-received by the Honorable Court on 4 February 2000.
"16. In the meantime, under date of 17 February 2000, and stamp-received by the Honorable Court on
19 February 2000, undersigned counsel filed an URGENT OMNIBUS MOTION praying that the
Honorable Court allow the exhumation of Ben Genosa and the re-examination of the cause of his
death; allow the examination of Marivic Genosa by qualified psychologists and psychiatrists to
determine her state of mind at the time she killed her husband; and finally, to allow a partial reopening of the case a quo to take the testimony of said psychologists and psychiatrists.

"Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then the only qualified
forensic pathologist in the country, who opined that the description of the death wound (as culled
from the post-mortem findings, Exhibit 'A') is more akin to a gunshot wound than a beating with a lead
pipe.
"17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly granted Marivic's
URGENT OMNIBUS MOTION and remanded the case 'to the trial court for the reception of expert
psychological and/or psychiatric opinion on the 'battered woman syndrome' plea, within ninety (90)
days from notice, and, thereafter to forthwith report to this Court the proceedings taken, together
with the copies of the TSN and relevant documentary evidence, if any, submitted.'
"18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the Hon. Fortunito L.
Madrona, RTC-Branch 35, Ormoc City.
"Immediately before Dra. Dayan was sworn, the Court a quo asked if she had interviewed Marivic
Genosa. Dra. Dayan informed the Court that interviews were done at the Penal Institution in 1999, but
that the clinical interviews and psychological assessment were done at her clinic.
"Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years with her own
private clinic and connected presently to the De La Salle University as a professor. Before this, she was
the Head of the Psychology Department of the Assumption College; a member of the faculty of
Psychology at the Ateneo de Manila University and St. Joseph's College; and was the counseling
psychologist of the National Defense College. She has an AB in Psychology from the University of the
Philippines, a Master of Arts in Clinical [Counseling], Psychology from the Ateneo, and a PhD from the
U.P. She was the past president of the Psychological Association of the Philippines and is a member of
the American Psychological Association. She is the secretary of the International Council of
Psychologists from about 68 countries; a member of the Forensic Psychology Association; and a
member of the ASEAN [Counseling] Association. She is actively involved with the Philippine Judicial
Academy, recently lecturing on the socio-demographic and psychological profile of families involved in
domestic violence and nullity cases. She was with the Davide Commission doing research about
Military Psychology. She has written a book entitled 'Energy Global Psychology' (together with Drs.
Allan Tan and Allan Bernardo). The Genosa case is the first time she has testified as an expert on
battered women as this is the first case of that nature.
"Dra. Dayan testified that for the research she conducted, on the socio-demographic and psychological
profile of families involved in domestic violence, and nullity cases, she looked at about 500 cases over a
period of ten (10) years and discovered that 'there are lots of variables that cause all of this marital
conflicts, from domestic violence to infidelity, to psychiatric disorder.'
"Dra. Dayan described domestic violence to comprise of 'a lot of incidents of psychological abuse,
verbal abuse, and emotional abuse to physical abuse and also sexual abuse.'
xxx

xxx

xxx

"Dra. Dayan testified that in her studies, 'the battered woman usually has a very low opinion of herself.
She has a self-defeating and self-sacrificing characteristics. x x x they usually think very lowly of
themselves and so when the violence would happen, they usually think that they provoke it, that they
were the one who precipitated the violence, they provoke their spouse to be physically, verbally and

even sexually abusive to them.' Dra. Dayan said that usually a battered x x x comes from a
dysfunctional family or from 'broken homes.'
"Dra. Dayan said that the batterer, just like the battered woman, 'also has a very low opinion of
himself. But then emerges to have superiority complex and it comes out as being very arrogant, very
hostile, very aggressive and very angry. They also had (sic) a very low tolerance for frustrations. A lot of
times they are involved in vices like gambling, drinking and drugs. And they become violent.' The
batterer also usually comes from a dysfunctional family which over-pampers them and makes them
feel entitled to do anything. Also, they see often how their parents abused each other so 'there is a lot
of modeling of aggression in the family.'
"Dra. Dayan testified that there are a lot of reasons why a battered woman does not leave her
husband: poverty, self-blame and guilt that she provoked the violence, the cycle itself which makes her
hope her husband will change, the belief in her obligations to keep the family intact at all costs for the
sake of the children.
xxx

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xxx

"Dra. Dayan said that abused wives react differently to the violence: some leave the house, or lock
themselves in another room, or sometimes try to fight back triggering 'physical violence on both of
them.' She said that in a 'normal marital relationship,' abuses also happen, but these are 'not
consistent, not chronic, are not happening day in [and] day out.' In an 'abnormal marital relationship,'
the abuse occurs day in and day out, is long lasting and 'even would cause hospitalization on the victim
and even death on the victim.'
xxx

xxx

xxx

"Dra. Dayan said that as a result of the battery of psychological tests she administered, it was her
opinion that Marivic fits the profile of a battered woman because 'inspite of her feeling of selfconfidence which we can see at times there are really feeling (sic) of loss, such feelings of humiliation
which she sees herself as damaged and as a broken person. And at the same time she still has the
imprint of all the abuses that she had experienced in the past.'
xxx

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xxx

"Dra. Dayan said Marivic thought of herself as a loving wife and did not even consider filing for nullity
or legal separation inspite of the abuses. It was at the time of the tragedy that Marivic then thought of
herself as a victim.
xxx

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xxx

"19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed away, appeared and
testified before RTC-Branch 35, Ormoc City.
"Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the Philippine Board of
Psychiatry and a Fellow of the Philippine Psychiatry Association. He was in the practice of psychiatry for
thirty-eight (38) years. Prior to being in private practice, he was connected with the Veterans Memorial
Medical Centre where he gained his training on psychiatry and neurology. After that, he was called to
active duty in the Armed Forces of the Philippines, assigned to the V. Luna Medical Center for twenty

six (26) years. Prior to his retirement from government service, he obtained the rank of Brigadier
General. He obtained his medical degree from the University of Santo Tomas. He was also a member of
the World Association of Military Surgeons; the Quezon City Medical Society; the Cagayan Medical
Society; and the Philippine Association of Military Surgeons.
"He authored 'The Comparative Analysis of Nervous Breakdown in the Philippine Military Academy
from the Period 1954 1978' which was presented twice in international congresses. He also authored
'The Mental Health of the Armed Forces of the Philippines 2000', which was likewise published
internationally and locally. He had a medical textbook published on the use of Prasepam on a ParkeDavis grant; was the first to use Enanthate (siquiline), on an E.R. Squibb grant; and he published the
use of the drug Zopiclom in 1985-86.
"Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind and neurology
deals with the ailment of the brain and spinal cord enlarged. Psychology, on the other hand, is a
bachelor degree and a doctorate degree; while one has to finish medicine to become a specialist in
psychiatry.
"Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had already encountered
a suit involving violent family relations, and testified in a case in 1964. In the Armed Forces of the
Philippines, violent family disputes abound, and he has seen probably ten to twenty thousand cases. In
those days, the primordial intention of therapy was reconciliation. As a result of his experience with
domestic violence cases, he became a consultant of the Battered Woman Office in Quezon City under
Atty. Nenita Deproza.
"As such consultant, he had seen around forty (40) cases of severe domestic violence, where there is
physical abuse: such as slapping, pushing, verbal abuse, battering and boxing a woman even to an
unconscious state such that the woman is sometimes confined. The affliction of Post-Traumatic Stress
Disorder 'depends on the vulnerability of the victim.' Dr. Pajarillo said that if the victim is not very
healthy, perhaps one episode of violence may induce the disorder; if the psychological stamina and
physiologic constitutional stamina of the victim is stronger, 'it will take more repetitive trauma to
precipitate the post-traumatic stress disorder and this x x x is very dangerous.'
"In psychiatry, the post-traumatic stress disorder is incorporated under the 'anxiety neurosis or
neurologic anxcietism.' It is produced by 'overwhelming brutality, trauma.'
xxx

xxx

xxx

"Dr. Pajarillo explained that with 'neurotic anxiety', the victim relives the beating or trauma as if it were
real, although she is not actually being beaten at that time. She thinks 'of nothing but the suffering.'
xxx

xxx

xxx

"A woman who suffers battery has a tendency to become neurotic, her emotional tone is unstable, and
she is irritable and restless. She tends to become hard-headed and persistent. She has higher
sensitivity and her 'self-world' is damaged.
"Dr. Pajarillo said that an abnormal family background relates to an individual's illness, such as the
deprivation of the continuous care and love of the parents. As to the batterer, he normally 'internalizes
what is around him within the environment.' And it becomes his own personality. He is very

competitive; he is aiming high all the time; he is so macho; he shows his strong faade 'but in it there
are doubts in himself and prone to act without thinking.'
xxx

xxx

xxx

"Dr. Pajarillo emphasized that 'even though without the presence of the precipator (sic) or the one
who administered the battering, that re-experiencing of the trauma occurred (sic) because the
individual cannot control it. It will just come up in her mind or in his mind.'
xxx

xxx

xxx

"Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to defend themselves, and
'primarily with knives. Usually pointed weapons or any weapon that is available in the immediate
surrounding or in a hospital x x x because that abound in the household.' He said a victim resorts to
weapons when she has 'reached the lowest rock bottom of her life and there is no other recourse left
on her but to act decisively.'
xxx

xxx

xxx

"Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview he conducted for two (2)
hours and seventeen (17) minutes. He used the psychological evaluation and social case studies as a
help in forming his diagnosis. He came out with a Psychiatric Report, dated 22 January 2001.
xxx

xxx

xxx

"On cross-examination by the private prosecutor, Dr. Pajarillo said that at the time she killed her
husband Marivic'c mental condition was that she was 're-experiencing the trauma.' He said 'that we
are trying to explain scientifically that the re-experiencing of the trauma is not controlled by Marivic. It
will just come in flashes and probably at that point in time that things happened when the reexperiencing of the trauma flashed in her mind.' At the time he interviewed Marivic 'she was more
subdued, she was not super alert anymore x x x she is mentally stress (sic) because of the predicament
she is involved.'
xxx

xxx

xxx

"20. No rebuttal evidence or testimony was presented by either the private or the public prosecutor.
Thus, in accord with the Resolution of this Honorable Court, the records of the partially re-opened trial
a quo were elevated."9
Ruling of the Trial Court
Finding the proffered theory of self-defense untenable, the RTC gave credence to the prosecution evidence
that appellant had killed the deceased while he was in bed sleeping. Further, the trial court appreciated the
generic aggravating circumstance of treachery, because Ben Genosa was supposedly defenseless when he was
killed -- lying in bed asleep when Marivic smashed him with a pipe at the back of his head.
The capital penalty having been imposed, the case was elevated to this Court for automatic review.
Supervening Circumstances

On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this Court allow (1) the
exhumation of Ben Genosa and the reexamination of the cause of his death; (2) the examination of appellant
by qualified psychologists and psychiatrists to determine her state of mind at the time she had killed her
spouse; and (3) the inclusion of the said experts' reports in the records of the case for purposes of the
automatic review or, in the alternative, a partial reopening of the case for the lower court to admit the
experts' testimonies.
On September 29, 2000, this Court issued a Resolution granting in part appellant's Motion, remanding the
case to the trial court for the reception of expert psychological and/or psychiatric opinion on the "battered
woman syndrome" plea; and requiring the lower court to report thereafter to this Court the proceedings
taken as well as to submit copies of the TSN and additional evidence, if any.
Acting on the Court's Resolution, the trial judge authorized the examination of Marivic by two clinical
psychologists, Drs. Natividad Dayan10 and Alfredo Pajarillo,11 supposedly experts on domestic violence. Their
testimonies, along with their documentary evidence, were then presented to and admitted by the lower court
before finally being submitted to this Court to form part of the records of the case. 12
The Issues
Appellant assigns the following alleged errors of the trial court for this Court's consideration:
"1. The trial court gravely erred in promulgating an obviously hasty decision without reflecting on the
evidence adduced as to self-defense.
"2. The trial court gravely erred in finding as a fact that Ben and Marivic Genosa were legally married
and that she was therefore liable for parricide.
"3. The trial court gravely erred finding the cause of death to be by beating with a pipe.
"4. The trial court gravely erred in ignoring and disregarding evidence adduced from impartial and
unbiased witnesses that Ben Genosa was a drunk, a gambler, a womanizer and wife-beater; and
further gravely erred in concluding that Ben Genosa was a battered husband.
"5. The trial court gravely erred in not requiring testimony from the children of Marivic Genosa.
"6. The trial court gravely erred in concluding that Marivic's flight to Manila and her subsequent
apologies were indicia of guilt, instead of a clear attempt to save the life of her unborn child.
"7. The trial court gravely erred in concluding that there was an aggravating circumstance of treachery.
"8. The trial court gravely erred in refusing to re-evaluate the traditional elements in determining the
existence of self-defense and defense of foetus in this case, thereby erroneously convicting Marivic
Genosa of the crime of parricide and condemning her to the ultimate penalty of death." 13
In the main, the following are the essential legal issues: (1) whether appellant acted in self-defense and in
defense of her fetus; and (2) whether treachery attended the killing of Ben Genosa.
The Court's Ruling

The appeal is partly meritorious.

Collateral Factual Issues
The first six assigned errors raised by appellant are factual in nature, if not collateral to the resolution of the
principal issues. As consistently held by this Court, the findings of the trial court on the credibility of witnesses
and their testimonies are entitled to a high degree of respect and will not be disturbed on appeal in the
absence of any showing that the trial judge gravely abused his discretion or overlooked, misunderstood or
misapplied material facts or circumstances of weight and substance that could affect the outcome of the
case.14
In appellant's first six assigned items, we find no grave abuse of discretion, reversible error or misappreciation
of material facts that would reverse or modify the trial court's disposition of the case. In any event, we will
now briefly dispose of these alleged errors of the trial court.
First, we do not agree that the lower court promulgated "an obviously hasty decision without reflecting on the
evidence adduced as to self-defense." We note that in his 17-page Decision, Judge Fortunito L. Madrona
summarized the testimonies of both the prosecution and the defense witnesses and -- on the basis of those
and of the documentary evidence on record -- made his evaluation, findings and conclusions. He wrote a 3page discourse assessing the testimony and the self-defense theory of the accused. While she, or even this
Court, may not agree with the trial judge's conclusions, we cannot peremptorily conclude, absent substantial
evidence, that he failed to reflect on the evidence presented.
Neither do we find the appealed Decision to have been made in an "obviously hasty" manner. The Information
had been filed with the lower court on November 14, 1996. Thereafter, trial began and at least 13 hearings
were held for over a year. It took the trial judge about two months from the conclusion of trial to promulgate
his judgment. That he conducted the trial and resolved the case with dispatch should not be taken against
him, much less used to condemn him for being unduly hasty. If at all, the dispatch with which he handled the
case should be lauded. In any case, we find his actions in substantial compliance with his constitutional
obligation.15
Second, the lower court did not err in finding as a fact that Ben Genosa and appellant had been legally
married, despite the non-presentation of their marriage contract. In People v. Malabago,16 this Court held:
"The key element in parricide is the relationship of the offender with the victim. In the case of parricide
of a spouse, the best proof of the relationship between the accused and the deceased is the marriage
certificate. In the absence of a marriage certificate, however, oral evidence of the fact of marriage may
be considered by the trial court if such proof is not objected to."
Two of the prosecution witnesses -- namely, the mother and the brother of appellant's deceased spouse -attested in court that Ben had been married to Marivic.17 The defense raised no objection to these
testimonies. Moreover, during her direct examination, appellant herself made a judicial admission of her
marriage to Ben.18Axiomatic is the rule that a judicial admission is conclusive upon the party making it, except
only when there is a showing that (1) the admission was made through a palpable mistake, or (2) no admission
was in fact made.19Other than merely attacking the non-presentation of the marriage contract, the defense
offered no proof that the admission made by appellant in court as to the fact of her marriage to the deceased
was made through a palpable mistake.

Third, under the circumstances of this case, the specific or direct cause of Ben's death -- whether by a gunshot
or by beating with a pipe -- has no legal consequence. As the Court elucidated in its September 29, 2000
Resolution, "[c]onsidering that the appellant has admitted the fact of killing her husband and the acts of
hitting his nape with a metal pipe and of shooting him at the back of his head, the Court believes that
exhumation is unnecessary, if not immaterial, to determine which of said acts actually caused the victim's
death." Determining which of these admitted acts caused the death is not dispositive of the guilt or defense of
appellant.
Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben was a drunk, gambler,
womanizer and wife-beater. Until this case came to us for automatic review, appellant had not raised the
novel defense of "battered woman syndrome," for which such evidence may have been relevant. Her theory
of self-defense was then the crucial issue before the trial court. As will be discussed shortly, the legal
requisites of self-defense under prevailing jurisprudence ostensibly appear inconsistent with the surrounding
facts that led to the death of the victim. Hence, his personal character, especially his past behavior, did not
constitute vital evidence at the time.
Fifth, the trial court surely committed no error in not requiring testimony from appellant's children. As
correctly elucidated by the solicitor general, all criminal actions are prosecuted under the direction and
control of the public prosecutor, in whom lies the discretion to determine which witnesses and evidence are
necessary to present.20 As the former further points out, neither the trial court nor the prosecution prevented
appellant from presenting her children as witnesses. Thus, she cannot now fault the lower court for not
requiring them to testify.
Finally, merely collateral or corroborative is the matter of whether the flight of Marivic to Manila and her
subsequent apologies to her brother-in-law are indicia of her guilt or are attempts to save the life of her
unborn child. Any reversible error as to the trial court's appreciation of these circumstances has little bearing
on the final resolution of the case.
First Legal Issue:
Self-Defense and Defense of a Fetus
Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes self-defense and/or defense of her
unborn child. When the accused admits killing the victim, it is incumbent upon her to prove any claimed
justifying circumstance by clear and convincing evidence.21 Well-settled is the rule that in criminal cases, selfdefense (and similarly, defense of a stranger or third person) shifts the burden of proof from the prosecution
to the defense.22
The Battered Woman Syndrome
In claiming self-defense, appellant raises the novel theory of the battered woman syndrome. While new in
Philippine jurisprudence, the concept has been recognized in foreign jurisdictions as a form of self-defense or,
at the least, incomplete self-defense.23 By appreciating evidence that a victim or defendant is afflicted with the
syndrome, foreign courts convey their "understanding of the justifiably fearful state of mind of a person who
has been cyclically abused and controlled over a period of time."24
A battered woman has been defined as a woman "who is repeatedly subjected to any forceful physical or
psychological behavior by a man in order to coerce her to do something he wants her to do without concern
for her rights. Battered women include wives or women in any form of intimate relationship with men.

Furthermore, in order to be classified as a battered woman, the couple must go through the battering cycle at
least twice. Any woman may find herself in an abusive relationship with a man once. If it occurs a second time,
and she remains in the situation, she is defined as a battered woman." 25
Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs about the
home, the family and the female sex role; emotional dependence upon the dominant male; the tendency to
accept responsibility for the batterer's actions; and false hopes that the relationship will improve. 26
More graphically, the battered woman syndrome is characterized by the so-called "cycle of violence,"27 which
has three phases: (1) the tension-building phase; (2) the acute battering incident; and (3) the tranquil, loving
(or, at least, nonviolent) phase.28
During the tension-building phase, minor battering occurs -- it could be verbal or slight physical abuse or
another form of hostile behavior. The woman usually tries to pacify the batterer through a show of kind,
nurturing behavior; or by simply staying out of his way. What actually happens is that she allows herself to be
abused in ways that, to her, are comparatively minor. All she wants is to prevent the escalation of the violence
exhibited by the batterer. This wish, however, proves to be double-edged, because her "placatory" and
passive behavior legitimizes his belief that he has the right to abuse her in the first place.
However, the techniques adopted by the woman in her effort to placate him are not usually successful, and
the verbal and/or physical abuse worsens. Each partner senses the imminent loss of control and the growing
tension and despair. Exhausted from the persistent stress, the battered woman soon withdraws emotionally.
But the more she becomes emotionally unavailable, the more the batterer becomes angry, oppressive and
abusive. Often, at some unpredictable point, the violence "spirals out of control" and leads to an acute
battering incident.29
The acute battering incident is said to be characterized by brutality, destructiveness and, sometimes, death.
The battered woman deems this incident as unpredictable, yet also inevitable. During this phase, she has no
control; only the batterer may put an end to the violence. Its nature can be as unpredictable as the time of its
explosion, and so are his reasons for ending it. The battered woman usually realizes that she cannot reason
with him, and that resistance would only exacerbate her condition.
At this stage, she has a sense of detachment from the attack and the terrible pain, although she may later
clearly remember every detail. Her apparent passivity in the face of acute violence may be rationalized thus:
the batterer is almost always much stronger physically, and she knows from her past painful experience that it
is futile to fight back. Acute battering incidents are often very savage and out of control, such that innocent
bystanders or intervenors are likely to get hurt.30
The final phase of the cycle of violence begins when the acute battering incident ends. During this tranquil
period, the couple experience profound relief. On the one hand, the batterer may show a tender and
nurturing behavior towards his partner. He knows that he has been viciously cruel and tries to make up for it,
begging for her forgiveness and promising never to beat her again. On the other hand, the battered woman
also tries to convince herself that the battery will never happen again; that her partner will change for the
better; and that this "good, gentle and caring man" is the real person whom she loves.
A battered woman usually believes that she is the sole anchor of the emotional stability of the batterer.
Sensing his isolation and despair, she feels responsible for his well-being. The truth, though, is that the
chances of his reforming, or seeking or receiving professional help, are very slim, especially if she remains with

him. Generally, only after she leaves him does he seek professional help as a way of getting her back. Yet, it is
in this phase of remorseful reconciliation that she is most thoroughly tormented psychologically.
The illusion of absolute interdependency is well-entrenched in a battered woman's psyche. In this phase, she
and her batterer are indeed emotionally dependent on each other -- she for his nurturant behavior, he for her
forgiveness. Underneath this miserable cycle of "tension, violence and forgiveness," each partner may believe
that it is better to die than to be separated. Neither one may really feel independent, capable of functioning
without the other.31
History of Abuse
in the Present Case
To show the history of violence inflicted upon appellant, the defense presented several witnesses. She herself
described her heart-rending experience as follows:
"ATTY. TABUCANON
Q How did you describe your marriage with Ben Genosa?
A In the first year, I lived with him happily but in the subsequent year he was cruel to me and a
behavior of habitual drinker.
Q You said that in the subsequent year of your marriage, your husband was abusive to you and cruel.
In what way was this abusive and cruelty manifested to you?
A He always provoke me in everything, he always slap me and sometimes he pinned me down on the
bed and sometimes beat me.
Q How many times did this happen?
A Several times already.
Q What did you do when these things happen to you?
A I went away to my mother and I ran to my father and we separate each other.
Q What was the action of Ben Genosa towards you leaving home?
A He is following me, after that he sought after me.
Q What will happen when he follow you?
A He said he changed, he asked for forgiveness and I was convinced and after that I go to him and he
said 'sorry'.
Q During those times that you were the recipient of such cruelty and abusive behavior by your
husband, were you able to see a doctor?
A Yes, sir.

Q Who are these doctors?

A The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.
xxx

xxx

xxx

Q You said that you saw a doctor in relation to your injuries?

A Yes, sir.
Q Who inflicted these injuries?
A Of course my husband.
Q You mean Ben Genosa?
A Yes, sir.
xxx

xxx

xxx

[Court] /to the witness

Q How frequent was the alleged cruelty that you said?
A Everytime he got drunk.
Q No, from the time that you said the cruelty or the infliction of injury inflicted on your occurred, after
your marriage, from that time on, how frequent was the occurrence?
A Everytime he got drunk.
Q Is it daily, weekly, monthly or how many times in a month or in a week?
A Three times a week.
Q Do you mean three times a week he would beat you?
A Not necessarily that he would beat me but sometimes he will just quarrel me." 32
Referring to his "Out-Patient Chart"33 on Marivic Genosa at the Philphos Hospital, Dr. Dino D. Caing bolstered
her foregoing testimony on chronic battery in this manner:
"Q So, do you have a summary of those six (6) incidents which are found in the chart of your clinic?
A Yes, sir.
Q Who prepared the list of six (6) incidents, Doctor?
A I did.

Q Will you please read the physical findings together with the dates for the record.
A 1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower eyelid and redness of eye.
Attending physician: Dr. Lucero;
2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area, pain and contusion (R) breast.
Attending physician: Dr. Canora;
3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;
4. August 1, 1994 - Pain, mastitis (L) breast, 2o to trauma. Attending physician: Dr. Caing;
5. April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending physician: Dr. Canora; and
6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion Pregnancy. Attending physician:
Dr. Canora.
Q Among the findings, there were two (2) incidents wherein you were the attending physician, is that
correct?
A Yes, sir.
Q Did you actually physical examine the accused?
A Yes, sir.
Q Now, going to your finding no. 3 where you were the one who attended the patient. What do you
mean by abrasion furuncle left axilla?
A Abrasion is a skin wound usually when it comes in contact with something rough substance if force is
applied.
Q What is meant by furuncle axilla?
A It is secondary of the light infection over the abrasion.
Q What is meant by pain mastitis secondary to trauma?
A So, in this 4th episode of physical injuries there is an inflammation of left breast. So, [pain] meaning
there is tenderness. When your breast is traumatized, there is tenderness pain.
Q So, these are objective physical injuries. Doctor?
xxx
Q Were you able to talk with the patient?
A Yes, sir.
Q What did she tell you?

xxx

xxx

A As a doctor-patient relationship, we need to know the cause of these injuries. And she told me that it
was done to her by her husband.
Q You mean, Ben Genosa?
A Yes, sir.
xxx

xxx

xxx

ATTY. TABUCANON:
Q By the way Doctor, were you able to physical examine the accused sometime in the month of
November, 1995 when this incident happened?
A As per record, yes.
Q What was the date?
A It was on November 6, 1995.
Q So, did you actually see the accused physically?
A Yes, sir.
Q On November 6, 1995, will you please tell this Honorable Court, was the patient pregnant?
A Yes, sir.
Q Being a doctor, can you more engage at what stage of pregnancy was she?
A Eight (8) months pregnant.
Q So in other words, it was an advance stage of pregnancy?
A Yes, sir.
Q What was your November 6, 1995 examination, was it an examination about her pregnancy or for
some other findings?
A No, she was admitted for hypertension headache which complicates her pregnancy.
Q When you said admitted, meaning she was confined?
A Yes, sir.
Q For how many days?
A One day.
Q Where?

A At PHILPHOS Hospital.
xxx

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xxx

Q Lets go back to the clinical history of Marivic Genosa. You said that you were able to examine her
personally on November 6, 1995 and she was 8 months pregnant.
What is this all about?
A Because she has this problem of tension headache secondary to hypertension and I think I have a
record here, also the same period from 1989 to 1995, she had a consultation for twenty-three (23)
times.
Q For what?
A Tension headache.
Q Can we say that specially during the latter consultation, that the patient had hypertension?
A The patient definitely had hypertension. It was refractory to our treatment. She does not response
when the medication was given to her, because tension headache is more or less stress related and
emotional in nature.
Q What did you deduce of tension headache when you said is emotional in nature?
A From what I deduced as part of our physical examination of the patient is the family history in line of
giving the root cause of what is causing this disease. So, from the moment you ask to the patient all
comes from the domestic problem.
Q You mean problem in her household?
A Probably.
Q Can family trouble cause elevation of blood pressure, Doctor?
A Yes, if it is emotionally related and stressful it can cause increases in hypertension which is
unfortunately does not response to the medication.
Q In November 6, 1995, the date of the incident, did you take the blood pressure of the accused?
A On November 6, 1995 consultation, the blood pressure was 180/120.
Q Is this considered hypertension?
A Yes, sir, severe.
Q Considering that she was 8 months pregnant, you mean this is dangerous level of blood pressure?
A It was dangerous to the child or to the fetus." 34

Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in Isabel, Leyte, testified that he
had seen the couple quarreling several times; and that on some occasions Marivic would run to him with
bruises, confiding that the injuries were inflicted upon her by Ben.35
Ecel Arano also testified36 that for a number of times she had been asked by Marivic to sleep at the Genosa
house, because the latter feared that Ben would come home drunk and hurt her. On one occasion that Ecel
did sleep over, she was awakened about ten o'clock at night, because the couple "were very noisy and I
heard something was broken like a vase." Then Marivic came running into Ecel's room and locked the door.
Ben showed up by the window grill atop a chair, scaring them with a knife.
On the afternoon of November 15, 1995, Marivic again asked her help -- this time to find Ben -- but they were
unable to. They returned to the Genosa home, where they found him already drunk. Again afraid that he
might hurt her, Marivic asked her to sleep at their house. Seeing his state of drunkenness, Ecel hesitated; and
when she heard the couple start arguing, she decided to leave.
On that same night that culminated in the death of Ben Genosa, at least three other witnesses saw or heard
the couple quarreling.37 Marivic relates in detail the following backdrop of the fateful night when life was
snuffed out of him, showing in the process a vivid picture of his cruelty towards her:
"ATTY. TABUCANON:
Q Please tell this Court, can you recall the incident in November 15, 1995 in the evening?
A Whole morning and in the afternoon, I was in the office working then after office hours, I boarded
the service bus and went to Bilwang. When I reached Bilwang, I immediately asked my son, where was
his father, then my second child said, 'he was not home yet'. I was worried because that was payday, I
was anticipating that he was gambling. So while waiting for him, my eldest son arrived from school, I
prepared dinner for my children.
Q This is evening of November 15, 1995?
A Yes, sir.
Q What time did Ben Genosa arrive?
A When he arrived, I was not there, I was in Isabel looking for him.
Q So when he arrived you were in Isabel looking for him?
A Yes, sir.
Q Did you come back to your house?
A Yes, sir.
Q By the way, where was your conjugal residence situated this time?
A Bilwang.

Q Is this your house or you are renting?

A Renting.
Q What time were you able to come back in your residence at Bilwang?
A I went back around almost 8:00 o'clock.
Q What happened when you arrived in your residence?
A When I arrived home with my cousin Ecel whom I requested to sleep with me at that time because I
had fears that he was again drunk and I was worried that he would again beat me so I requested my
cousin to sleep with me, but she resisted because she had fears that the same thing will happen again
last year.

Q Who was this cousin of yours who you requested to sleep with you?
A Ecel Arao, the one who testified.
Q Did Ecel sleep with you in your house on that evening?
A No, because she expressed fears, she said her father would not allow her because of Ben.
Q During this period November 15, 1995, were you pregnant?
A Yes, 8 months.
Q How advance was your pregnancy?
A Eight (8) months.
Q Was the baby subsequently born?
A Yes, sir.
Q What's the name of the baby you were carrying at that time?
A Marie Bianca.
Q What time were you able to meet personally your husband?
A Yes, sir.
Q What time?
A When I arrived home, he was there already in his usual behavior.
Q Will you tell this Court what was his disposition?

A He was drunk again, he was yelling in his usual unruly behavior.

Q What was he yelling all about?
A His usual attitude when he got drunk.
Q You said that when you arrived, he was drunk and yelling at you? What else did he do if any?
A He is nagging at me for following him and he dared me to quarrel him.
Q What was the cause of his nagging or quarreling at you if you know?
A He was angry at me because I was following x x x him, looking for him. I was just worried he might be
overly drunk and he would beat me again.
Q You said that he was yelling at you, what else, did he do to you if any?
A He was nagging at me at that time and I just ignore him because I want to avoid trouble for fear that
he will beat me again. Perhaps he was disappointed because I just ignore him of his provocation and he
switch off the light and I said to him, 'why did you switch off the light when the children were there.' At
that time I was also attending to my children who were doing their assignments. He was angry with me
for not answering his challenge, so he went to the kitchen and [got] a bolo and cut the antenna wire to
stop me from watching television.
Q What did he do with the bolo?
A He cut the antenna wire to keep me from watching T.V.
Q What else happened after he cut the wire?
A He switch off the light and the children were shouting because they were scared and he was already
holding the bolo.
Q How do you described this bolo?
A 1 1/2 feet.
Q What was the bolo used for usually?
A For chopping meat.
Q You said the children were scared, what else happened as Ben was carrying that bolo?
A He was about to attack me so I run to the room.
Q What do you mean that he was about to attack you?
A When I attempt to run he held my hands and he whirled me and I fell to the bedside.
Q So when he whirled you, what happened to you?

A I screamed for help and then he left.

Q You said earlier that he whirled you and you fell on the bedside?
A Yes, sir.
Q You screamed for help and he left, do you know where he was going?
A Outside perhaps to drink more.
Q When he left what did you do in that particular time?
A I packed all his clothes.
Q What was your reason in packing his clothes?
A I wanted him to leave us.
Q During this time, where were your children, what were their reactions?
A After a couple of hours, he went back again and he got angry with me for packing his clothes, then he
dragged me again of the bedroom holding my neck.
Q You said that when Ben came back to your house, he dragged you? How did he drag you?
COURT INTERPRETER:
The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)
A And he dragged me towards the door backward.
ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted to get something and then he kept on shouting at me that 'you
might as well be killed so there will be nobody to nag me.'
Q So you said that he dragged you towards the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
COURT INTERPRETER:
(At this juncture the witness started crying).

ATTY. TABUCANON:
Q Were you actually brought to the drawer?
A Yes, sir.
Q What happened when you were brought to that drawer?
A He dragged me towards the drawer and he was about to open the drawer but he could not open it
because he did not have the key then he pulled his wallet which contained a blade about 3 inches long
and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade
fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about
to pick-up the wallet and the blade, I smashed him then I ran to the other room, and on that very
moment everything on my mind was to pity on myself, then the feeling I had on that very moment was
the same when I was admitted in PHILPHOS Clinic, I was about to vomit.
COURT INTERPRETER:
(The witness at this juncture is crying intensely).
xxx

xxx

xxx

ATTY. TABUCANON:
Q Talking of drawer, is this drawer outside your room?
A Outside.
Q In what part of the house?
A Dining.
Q Where were the children during that time?
A My children were already asleep.
Q You mean they were inside the room?
A Yes, sir.
Q You said that he dropped the blade, for the record will you please describe this blade about 3 inches
long, how does it look like?
A Three (3) inches long and 1/2 inch wide.
Q Is it a flexible blade?
A It's a cutter.
Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?
A Yes, sir, that was the object used when he intimidate me." 38
In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert witness to assist it in
understanding the psyche of a battered person. She had met with Marivic Genosa for five sessions totaling
about seventeen hours. Based on their talks, the former briefly related the latter's ordeal to the court a quo as
follows:
"Q: What can you say, that you found Marivic as a battered wife? Could you in layman's term describe
to this Court what her life was like as said to you?
A: What I remember happened then was it was more than ten years, that she was suffering emotional
anguish. There were a lot of instances of abuses, to emotional abuse, to verbal abuse and to physical
abuse. The husband had a very meager income, she was the one who was practically the bread earner
of the family. The husband was involved in a lot of vices, going out with barkadas, drinking, even
womanizing being involved in cockfight and going home very angry and which will trigger a lot of
physical abuse. She also had the experience a lot of taunting from the husband for the reason that the
husband even accused her of infidelity, the husband was saying that the child she was carrying was not
his own. So she was very angry, she was at the same time very depressed because she was also aware,
almost like living in purgatory or even hell when it was happening day in and day out." 39
In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but wittingly or unwittingly put
forward, additional supporting evidence as shown below:
"Q In your first encounter with the appellant in this case in 1999, where you talked to her about three
hours, what was the most relevant information did you gather?
A The most relevant information was the tragedy that happened. The most important information
were escalating abuses that she had experienced during her marital life.
Q Before you met her in 1999 for three hours, we presume that you already knew of the facts of the
case or at least you have substantial knowledge of the facts of the case?
A I believe I had an idea of the case, but I do not know whether I can consider them as substantial.
xxx

xxx

xxx

Q Did you gather an information from Marivic that on the side of her husband they were fond of
battering their wives?
A I also heard that from her?

Q You heard that from her?

A Yes, sir.
Q Did you ask for a complete example who are the relatives of her husband that were fond of battering
their wives?
A What I remember that there were brothers of her husband who are also battering their wives.
Q Did she not inform you that there was an instance that she stayed in a hotel in Ormoc where her
husband followed her and battered [her] several times in that room?
A She told me about that.
Q Did she inform you in what hotel in Ormoc?
A Sir, I could not remember but I was told that she was battered in that room.
Q Several times in that room?
A Yes, sir. What I remember was that there is no problem about being battered, it really happened.
Q Being an expert witness, our jurisprudence is not complete on saying this matter. I think that is the
first time that we have this in the Philippines, what is your opinion?
A Sir, my opinion is, she is really a battered wife and in this kind happened, it was really a self-defense.
I also believe that there had been provocation and I also believe that she became a disordered person.
She had to suffer anxiety reaction because of all the battering that happened and so she became an
abnormal person who had lost she's not during the time and that is why it happened because of all the
physical battering, emotional battering, all the psychological abuses that she had experienced from her
husband.
Q I do believe that she is a battered wife. Was she extremely battered?
A Sir, it is an extreme form of battering. Yes.40
Parenthetically, the credibility of appellant was demonstrated as follows:
"Q And you also said that you administered [the] objective personality test, what x x x [is this] all
about?
A The objective personality test is the Millon Clinical Multiaxial Inventory. The purpose of that test is to
find out about the lying prone[ne]ss of the person.
Q What do you mean by that?
A Meaning, am I dealing with a client who is telling me the truth, or is she someone who can
exaggerate or x x x [will] tell a lie[?]

Q And what did you discover on the basis of this objective personality test?
A She was a person who passed the honesty test. Meaning she is a person that I can trust. That the
data that I'm gathering from her are the truth."41
The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on his Psychiatric
Report,42which was based on his interview and examination of Marivic Genosa. The Report said that during
the first three years of her marriage to Ben, everything looked good -- the atmosphere was fine, normal and
happy -- until "Ben started to be attracted to other girls and was also enticed in[to] gambling[,] especially
cockfighting. x x x. At the same time Ben was often joining his barkada in drinking sprees."
The drinking sprees of Ben greatly changed the attitude he showed toward his family, particularly to his wife.
The Report continued: "At first, it was verbal and emotional abuses but as time passed, he became physically
abusive. Marivic claimed that the viciousness of her husband was progressive every time he got drunk. It was a
painful ordeal Marivic had to anticipate whenever she suspected that her husband went for a drinking [spree].
They had been married for twelve years[;] and practically more than eight years, she was battered and
maltreated relentlessly and mercilessly by her husband whenever he was drunk."
Marivic sought the help of her mother-in-law, but her efforts were in vain. Further quoting from the Report,
"[s]he also sought the advice and help of close relatives and well-meaning friends in spite of her feeling
ashamed of what was happening to her. But incessant battering became more and more frequent and more
severe. x x x."43
From the totality of evidence presented, there is indeed no doubt in the Court's mind that Appellant Marivic
Genosa was a severely abused person.
Effect of Battery on Appellant
Because of the recurring cycles of violence experienced by the abused woman, her state of mind
metamorphoses. In determining her state of mind, we cannot rely merely on the judgment of an ordinary,
reasonable person who is evaluating the events immediately surrounding the incident. A Canadian court has
aptly pointed out that expert evidence on the psychological effect of battering on wives and common law
partners are both relevant and necessary. "How can the mental state of the appellant be appreciated without
it? The average member of the public may ask: Why would a woman put up with this kind of treatment? Why
should she continue to live with such a man? How could she love a partner who beat her to the point of
requiring hospitalization? We would expect the woman to pack her bags and go. Where is her self-respect?
Why does she not cut loose and make a new life for herself? Such is the reaction of the average person
confronted with the so-called 'battered wife syndrome.'"44
To understand the syndrome properly, however, one's viewpoint should not be drawn from that of an
ordinary, reasonable person. What goes on in the mind of a person who has been subjected to repeated,
severe beatings may not be consistent with -- nay, comprehensible to -- those who have not been through a
similar experience. Expert opinion is essential to clarify and refute common myths and misconceptions about
battered women.45
The theory of BWS formulated by Lenore Walker, as well as her research on domestic violence, has had a
significant impact in the United States and the United Kingdom on the treatment and prosecution of cases, in
which a battered woman is charged with the killing of her violent partner. The psychologist explains that the
cyclical nature of the violence inflicted upon the battered woman immobilizes the latter's "ability to act

decisively in her own interests, making her feel trapped in the relationship with no means of escape."46 In her
years of research, Dr. Walker found that "the abuse often escalates at the point of separation and battered
women are in greater danger of dying then."47
Corroborating these research findings, Dra. Dayan said that "the battered woman usually has a very low
opinion of herself. She has x x x self-defeating and self-sacrificing characteristics. x x x [W]hen the violence
would happen, they usually think that they provoke[d] it, that they were the one[s] who precipitated the
violence[; that] they provoke[d] their spouse to be physically, verbally and even sexually abusive to them."48
According to Dra. Dayan, there are a lot of reasons why a battered woman does not readily leave an abusive
partner -- poverty, self-blame and guilt arising from the latter's belief that she provoked the violence, that she
has an obligation to keep the family intact at all cost for the sake of their children, and that she is the only
hope for her spouse to change.49
The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had previously testified in suits
involving violent family relations, having evaluated "probably ten to twenty thousand" violent family disputes
within the Armed Forces of the Philippines, wherein such cases abounded. As a result of his experience with
domestic violence cases, he became a consultant of the Battered Woman Office in Quezon City. As such, he
got involved in about forty (40) cases of severe domestic violence, in which the physical abuse on the woman
would sometimes even lead to her loss of consciousness.50
Dr. Pajarillo explained that "overwhelming brutality, trauma" could result in posttraumatic stress disorder, a
form of "anxiety neurosis or neurologic anxietism."51 After being repeatedly and severely abused, battered
persons "may believe that they are essentially helpless, lacking power to change their situation. x x x [A]cute
battering incidents can have the effect of stimulating the development of coping responses to the trauma at
the expense of the victim's ability to muster an active response to try to escape further trauma. Furthermore,
x x x the victim ceases to believe that anything she can do will have a predictable positive effect."52
A study53 conducted by Martin Seligman, a psychologist at the University of Pennsylvania, found that "even if a
person has control over a situation, but believes that she does not, she will be more likely to respond to that
situation with coping responses rather than trying to escape." He said that it was the cognitive aspect -- the
individual's thoughts -- that proved all-important. He referred to this phenomenon as "learned helplessness."
"[T]he truth or facts of a situation turn out to be less important than the individual's set of beliefs or
perceptions concerning the situation. Battered women don't attempt to leave the battering situation, even
when it may seem to outsiders that escape is possible, because they cannot predict their own safety; they
believe that nothing they or anyone else does will alter their terrible circumstances."54
Thus, just as the battered woman believes that she is somehow responsible for the violent behavior of her
partner, she also believes that he is capable of killing her, and that there is no escape. 55 Battered women feel
unsafe, suffer from pervasive anxiety, and usually fail to leave the relationship.56 Unless a shelter is available,
she stays with her husband, not only because she typically lacks a means of self-support, but also because she
fears that if she leaves she would be found and hurt even more.57
In the instant case, we meticulously scoured the records for specific evidence establishing that appellant, due
to the repeated abuse she had suffered from her spouse over a long period of time, became afflicted with the
battered woman syndrome. We, however, failed to find sufficient evidence that would support such a
conclusion. More specifically, we failed to find ample evidence that would confirm the presence of the
essential characteristics of BWS.

The defense fell short of proving all three phases of the "cycle of violence" supposedly characterizing the
relationship of Ben and Marivic Genosa. No doubt there were acute battering incidents. In relating to the
court a quo how the fatal incident that led to the death of Ben started, Marivic perfectly described the
tension-building phase of the cycle. She was able to explain in adequate detail the typical characteristics of
this stage. However, that single incident does not prove the existence of the syndrome. In other words, she
failed to prove that in at least another battering episode in the past, she had gone through a similar pattern.
How did the tension between the partners usually arise or build up prior to acute battering? How did Marivic
normally respond to Ben's relatively minor abuses? What means did she employ to try to prevent the situation
from developing into the next (more violent) stage?
Neither did appellant proffer sufficient evidence in regard to the third phase of the cycle. She simply
mentioned that she would usually run away to her mother's or father's house; 58 that Ben would seek her out,
ask for her forgiveness and promise to change; and that believing his words, she would return to their
common abode.
Did she ever feel that she provoked the violent incidents between her and her spouse? Did she believe that
she was the only hope for Ben to reform? And that she was the sole support of his emotional stability and
well-being? Conversely, how dependent was she on him? Did she feel helpless and trapped in their
relationship? Did both of them regard death as preferable to separation?
In sum, the defense failed to elicit from appellant herself her factual experiences and thoughts that would
clearly and fully demonstrate the essential characteristics of the syndrome.
The Court appreciates the ratiocinations given by the expert witnesses for the defense. Indeed, they were able
to explain fully, albeit merely theoretically and scientifically, how the personality of the battered woman
usually evolved or deteriorated as a result of repeated and severe beatings inflicted upon her by her partner
or spouse. They corroborated each other's testimonies, which were culled from their numerous studies of
hundreds of actual cases. However, they failed to present in court the factual experiences and thoughts that
appellant had related to them -- if at all -- based on which they concluded that she had BWS.
We emphasize that in criminal cases, all the elements of a modifying circumstance must be proven in order to
be appreciated. To repeat, the records lack supporting evidence that would establish all the essentials of the
battered woman syndrome as manifested specifically in the case of the Genosas.
BWS as Self-Defense
In any event, the existence of the syndrome in a relationship does not in itself establish the legal right of the
woman to kill her abusive partner. Evidence must still be considered in the context of self-defense.59
From the expert opinions discussed earlier, the Court reckons further that crucial to the BWS defense is the
state of mind of the battered woman at the time of the offense 60 -- she must have actually feared imminent
harm from her batterer and honestly believed in the need to kill him in order to save her life.
Settled in our jurisprudence, however, is the rule that the one who resorts to self-defense must face a real
threaton one's life; and the peril sought to be avoided must be imminent and actual, not merely
imaginary.61 Thus, the Revised Penal Code provides the following requisites and effect of self-defense:62
"Art. 11. Justifying circumstances. -- The following do not incur any criminal liability:

"1. Anyone who acts in defense of his person or rights, provided that the following circumstances
concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself."
Unlawful aggression is the most essential element of self-defense.63 It presupposes actual, sudden and
unexpected attack -- or an imminent danger thereof -- on the life or safety of a person.64 In the present case,
however, according to the testimony of Marivic herself, there was a sufficient time interval between the
unlawful aggression of Ben and her fatal attack upon him. She had already been able to withdraw from his
violent behavior and escape to their children's bedroom. During that time, he apparently ceased his attack and
went to bed. The reality or even the imminence of the danger he posed had ended altogether. He was no
longer in a position that presented an actual threat on her life or safety.
Had Ben still been awaiting Marivic when she came out of their children's bedroom -- and based on past
violent incidents, there was a great probability that he would still have pursued her and inflicted graver harm - then, the imminence of the real threat upon her life would not have ceased yet. Where the brutalized person
is already suffering from BWS, further evidence of actual physical assault at the time of the killing is not
required. Incidents of domestic battery usually have a predictable pattern. To require the battered person to
await an obvious, deadly attack before she can defend her life "would amount to sentencing her to 'murder by
installment.'"65 Still, impending danger (based on the conduct of the victim in previous battering episodes)
prior to the defendant's use of deadly force must be shown. Threatening behavior or communication can
satisfy the required imminence of danger.66 Considering such circumstances and the existence of BWS, selfdefense may be appreciated.
We reiterate the principle that aggression, if not continuous, does not warrant self-defense.67 In the absence
of such aggression, there can be no self-defense -- complete or incomplete -- on the part of the victim.68 Thus,
Marivic's killing of Ben was not completely justified under the circumstances.
Mitigating Circumstances Present
In any event, all is not lost for appellant. While she did not raise any other modifying circumstances that would
alter her penalty, we deem it proper to evaluate and appreciate in her favor circumstances that mitigate her
criminal liability. It is a hornbook doctrine that an appeal in a criminal case opens it wholly for review on any
issue, including that which has not been raised by the parties. 69
From several psychological tests she had administered to Marivic, Dra. Dayan, in her Psychological Evaluation
Report dated November 29, 2000, opined as follows:
"This is a classic case of a Battered Woman Syndrome. The repeated battering Marivic experienced
with her husband constitutes a form of [cumulative] provocation which broke down her psychological
resistance and natural self-control. It is very clear that she developed heightened sensitivity to sight of
impending danger her husband posed continuously. Marivic truly experienced at the hands of her
abuser husband a state of psychological paralysis which can only be ended by an act of violence on her
part." 70

Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect of "repetitious pain taking,
repetitious battering, [and] repetitious maltreatment" as well as the severity and the prolonged
administration of the battering is posttraumatic stress disorder.71 Expounding thereon, he said:
"Q What causes the trauma, Mr. Witness?
A What causes the trauma is probably the repetitious battering. Second, the severity of the battering.
Third, the prolonged administration of battering or the prolonged commission of the battering and the
psychological and constitutional stamina of the victim and another one is the public and social support
available to the victim. If nobody is interceding, the more she will go to that disorder....
xxx

xxx

xxx

Q You referred a while ago to severity. What are the qualifications in terms of severity of the
postraumatic stress disorder, Dr. Pajarillo?
A The severity is the most severe continuously to trig[g]er this post[t]raumatic stress disorder is injury
to the head, banging of the head like that. It is usually the very very severe stimulus that precipitate
this post[t]raumatic stress disorder. Others are suffocating the victim like holding a pillow on the face,
strangulating the individual, suffocating the individual, and boxing the individual. In this situation
therefore, the victim is heightened to painful stimulus, like for example she is pregnant, she is very
susceptible because the woman will not only protect herself, she is also to protect the fetus. So the
anxiety is heightened to the end [sic] degree.
Q But in terms of the gravity of the disorder, Mr. Witness, how do you classify?
A We classify the disorder as [acute], or chronic or delayed or [a]typical.
Q Can you please describe this pre[-]classification you called delayed or [atypical]?
A The acute is the one that usually require only one battering and the individual will manifest now a
severe emotional instability, higher irritability remorse, restlessness, and fear and probably in most
[acute] cases the first thing will be happened to the individual will be thinking of suicide.
Q And in chronic cases, Mr. Witness?
A The chronic cases is this repetitious battering, repetitious maltreatment, any prolonged, it is longer
than six (6) months. The [acute] is only the first day to six (6) months. After this six (6) months you
become chronic. It is stated in the book specifically that after six (6) months is chronic. The [a]typical
one is the repetitious battering but the individual who is abnormal and then become normal. This is
how you get neurosis from neurotic personality of these cases of post[t]raumatic stress disorder." 72
Answering the questions propounded by the trial judge, the expert witness clarified further:
"Q But just the same[,] neurosis especially on battered woman syndrome x x x affects x x x his or her
mental capacity?
A Yes, your Honor.

Q As you were saying[,] it x x x obfuscated her rationality?

A Of course obfuscated."73
In sum, the cyclical nature and the severity of the violence inflicted upon appellant resulted in "cumulative
provocation which broke down her psychological resistance and natural self-control," "psychological
paralysis," and "difficulty in concentrating or impairment of memory."
Based on the explanations of the expert witnesses, such manifestations were analogous to an illness that
diminished the exercise by appellant of her will power without, however, depriving her of consciousness of her
acts.There was, thus, a resulting diminution of her freedom of action, intelligence or intent. Pursuant to
paragraphs 974and 1075 of Article 13 of the Revised Penal Code, this circumstance should be taken in her favor
and considered as a mitigating factor. 76
In addition, we also find in favor of appellant the extenuating circumstance of having acted upon an impulse
so powerful as to have naturally produced passion and obfuscation. It has been held that this state of mind is
present when a crime is committed as a result of an uncontrollable burst of passion provoked by prior unjust
or improper acts or by a legitimate stimulus so powerful as to overcome reason.77 To appreciate this
circumstance, the following requisites should concur: (1) there is an act, both unlawful and sufficient to
produce such a condition of mind; and (2) this act is not far removed from the commission of the crime by a
considerable length of time, during which the accused might recover her normal equanimity. 78
Here, an acute battering incident, wherein Ben Genosa was the unlawful aggressor, preceded his being killed
by Marivic. He had further threatened to kill her while dragging her by the neck towards a cabinet in which he
had kept a gun. It should also be recalled that she was eight months pregnant at the time. The attempt on her
life was likewise on that of her fetus.79 His abusive and violent acts, an aggression which was directed at the
lives of both Marivic and her unborn child, naturally produced passion and obfuscation overcoming her
reason. Even though she was able to retreat to a separate room, her emotional and mental state continued.
According to her, she felt her blood pressure rise; she was filled with feelings of self-pity and of fear that she
and her baby were about to die. In a fit of indignation, she pried open the cabinet drawer where Ben kept a
gun, then she took the weapon and used it to shoot him.
The confluence of these events brings us to the conclusion that there was no considerable period of time
within which Marivic could have recovered her normal equanimity. Helpful is Dr. Pajarillo's testimony 80 that
with "neurotic anxiety" -- a psychological effect on a victim of "overwhelming brutality [or] trauma" -- the
victim relives the beating or trauma as if it were real, although she is not actually being beaten at the time.
She cannot control "re-experiencing the whole thing, the most vicious and the trauma that she suffered." She
thinks "of nothing but the suffering." Such reliving which is beyond the control of a person under similar
circumstances, must have been what Marivic experienced during the brief time interval and prevented her
from recovering her normal equanimity. Accordingly, she should further be credited with the mitigating
circumstance of passion and obfuscation.
It should be clarified that these two circumstances -- psychological paralysis as well as passion and obfuscation
-- did not arise from the same set of facts.
On the one hand, the first circumstance arose from the cyclical nature and the severity of the battery inflicted
by the batterer-spouse upon appellant. That is, the repeated beatings over a period of time resulted in her
psychological paralysis, which was analogous to an illness diminishing the exercise of her will power without
depriving her of consciousness of her acts.

The second circumstance, on the other hand, resulted from the violent aggression he had inflicted on her prior
to the killing. That the incident occurred when she was eight months pregnant with their child was deemed by
her as an attempt not only on her life, but likewise on that of their unborn child. Such perception naturally
produced passion and obfuscation on her part.
Second Legal Issue:
Treachery
There is treachery when one commits any of the crimes against persons by employing means, methods or
forms in the execution thereof without risk to oneself arising from the defense that the offended party might
make.81 In order to qualify an act as treacherous, the circumstances invoked must be proven as indubitably as
the killing itself; they cannot be deduced from mere inferences, or conjectures, which have no place in the
appreciation of evidence.82 Because of the gravity of the resulting offense, treachery must be proved as
conclusively as the killing itself.83
Ruling that treachery was present in the instant case, the trial court imposed the penalty of death upon
appellant. It inferred this qualifying circumstances merely from the fact that the lifeless body of Ben had been
found lying in bed with an "open, depressed, circular" fracture located at the back of his head. As to exactly
how and when he had been fatally attacked, however, the prosecution failed to establish indubitably. Only the
following testimony of appellant leads us to the events surrounding his death:
"Q You said that when Ben came back to your house, he dragged you? How did he drag you?
COURT:
The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)
A And he dragged me towards the door backward.
ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted to get something and then he kept on shouting at me that 'you
might as well be killed so there will be nobody to nag me'
Q So you said that he dragged you towards the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
COURT INTERPRETER
(At this juncture the witness started crying)

ATTY. TABUCANON:
Q Were you actually brought to the drawer?
A Yes, sir.
Q What happened when you were brought to that drawer?
A He dragged me towards the drawer and he was about to open the drawer but he could not open it
because he did not have the key then he pulled his wallet which contained a blade about 3 inches long
and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade
fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about
to pick-up the wallet and the blade, I smashed him then I ran to the other room, and on that very
moment everything on my mind was to pity on myself, then the feeling I had on that very moment was
the same when I was admitted in PHILPHOS Clinic, I was about to vomit.
COURT INTERPRETER
(The witness at this juncture is crying intensely).
xxx

xxx

xxx

Q You said that he dropped the blade, for the record will you please describe this blade about 3 inches
long, how does it look like?
A Three (3) inches long and inch wide.
Q It is a flexible blade?
A It's a cutter.
Q How do you describe the blade, is it sharp both edges?
A Yes, because he once used it to me.
Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?
A Yes, sir, that was the object used when he intimidate me.
xxx

xxx

ATTY. TABUCANON:
Q You said that this blade fell from his grip, is it correct?
A Yes, because I smashed him.

xxx

Q What happened?
A Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I smashed him and I ran to the
other room.
Q What else happened?
A When I was in the other room, I felt the same thing like what happened before when I was admitted
in PHILPHOS Clinic, I was about to vomit. I know my blood pressure was raised. I was frightened I was
about to die because of my blood pressure.
COURT INTERPRETER:
(Upon the answer of the witness getting the pipe and smashed him, the witness at the same
time pointed at the back of her neck or the nape).
ATTY. TABUCANON:
Q You said you went to the room, what else happened?
A Considering all the physical sufferings that I've been through with him, I took pity on myself and I felt
I was about to die also because of my blood pressure and the baby, so I got that gun and I shot him.
COURT
/to Atty. Tabucanon
Q You shot him?
A Yes, I distorted the drawer."84
The above testimony is insufficient to establish the presence of treachery. There is no showing of the victim's
position relative to appellant's at the time of the shooting. Besides, equally axiomatic is the rule that when a
killing is preceded by an argument or a quarrel, treachery cannot be appreciated as a qualifying circumstance,
because the deceased may be said to have been forewarned and to have anticipated aggression from the
assailant.85
Moreover, in order to appreciate alevosia, the method of assault adopted by the aggressor must have been
consciously and deliberately chosen for the specific purpose of accomplishing the unlawful act without risk
from any defense that might be put up by the party attacked.86 There is no showing, though, that the present
appellant intentionally chose a specific means of successfully attacking her husband without any risk to herself
from any retaliatory act that he might make. To the contrary, it appears that the thought of using the gun
occurred to her only at about the same moment when she decided to kill her batterer-spouse. In the absence
of any convincing proof that she consciously and deliberately employed the method by which she committed
the crime in order to ensure its execution, this Court resolves the doubt in her favor. 87
Proper Penalty

The penalty for parricide imposed by Article 246 of the Revised Penal Code is reclusion perpetua to death.
Since two mitigating circumstances and no aggravating circumstance have been found to have attended the
commission of the offense, the penalty shall be lowered by one (1) degree, pursuant to Article 64 of paragraph
588 of the same Code.89 The penalty of reclusion temporal in its medium period is imposable, considering that
two mitigating circumstances are to be taken into account in reducing the penalty by one degree, and no
other modifying circumstances were shown to have attended the commission of the offense. 90 Under the
Indeterminate Sentence Law, the minimum of the penalty shall be within the range of that which is next lower
in degree -- prision mayor -- and the maximum shall be within the range of the medium period of reclusion
temporal.
Considering all the circumstances of the instant case, we deem it just and proper to impose the penalty
of prision mayor in its minimum period, or six (6) years and one (1) day in prison as minimum; to reclusion
temporal in its medium period, or 14 years 8 months and 1 day as maximum. Noting that appellant has already
served the minimum period, she may now apply for and be released from detention on parole. 91
Epilogue
Being a novel concept in our jurisprudence, the battered woman syndrome was neither easy nor simple to
analyze and recognize vis--vis the given set of facts in the present case. The Court agonized on how to apply
the theory as a modern-day reality. It took great effort beyond the normal manner in which decisions are
made -- on the basis of existing law and jurisprudence applicable to the proven facts. To give a just and proper
resolution of the case, it endeavored to take a good look at studies conducted here and abroad in order to
understand the intricacies of the syndrome and the distinct personality of the chronically abused person.
Certainly, the Court has learned much. And definitely, the solicitor general and appellant's counsel, Atty.
Katrina Legarda, have helped it in such learning process.
While our hearts empathize with recurrently battered persons, we can only work within the limits of law,
jurisprudence and given facts. We cannot make or invent them. Neither can we amend the Revised Penal
Code. Only Congress, in its wisdom, may do so.
The Court, however, is not discounting the possibility of self-defense arising from the battered woman
syndrome. We now sum up our main points. First, each of the phases of the cycle of violence must be proven
to have characterized at least two battering episodes between the appellant and her intimate partner. Second,
the final acute battering episode preceding the killing of the batterer must have produced in the battered
person's mind an actual fear of an imminent harm from her batterer and an honest belief that she needed to
use force in order to save her life. Third, at the time of the killing, the batterer must have posed probable -not necessarily immediate and actual -- grave harm to the accused, based on the history of violence
perpetrated by the former against the latter. Taken altogether, these circumstances could satisfy the
requisites of self-defense. Under the existing facts of the present case, however, not all of these elements
were duly established.
WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED. However, there
being two (2) mitigating circumstances and no aggravating circumstance attending her commission of the
offense, her penalty is REDUCED to six (6) years and one (1) day of prision mayor as minimum; to 14 years, 8
months and 1 day of reclusion temporal as maximum.
Inasmuch as appellant has been detained for more than the minimum penalty hereby imposed upon her, the
director of the Bureau of Corrections may immediately RELEASE her from custody upon due determination
that she is eligible for parole, unless she is being held for some other lawful cause. Costs de oficio.

SO ORDERED.
Puno, Carpio, Corona, Carpio-Morales, Callejo, Sr., Azcuna and Tinga, JJ., concur.
Davide, Jr., C.J., Sandoval-Gutierrez, and Austria-Martinez, JJ., join Justice Santiago in her dissent.
Vitug and Quisumbing JJ., in the result.
Ynares-Santiago J., see dissenting opinion.
DISSENTING OPINION
YNARES-SANTIAGO, J.:
In convicting Marivic Genosa of the crime of parricide, our esteemed colleague Mr. Justice Artemio V.
Panganiban found that there was no factual basis to conclude that Marivic was suffering from "Battered
Woman Syndrome" (BWS) at the time she took the life of her husband. With due respect, I register my dissent.
The novel theory of "Battered Woman Syndrome" is recognized in foreign jurisprudence as a form of selfdefense. It operates upon the premise that a woman who has been cyclically abused and controlled over a
period of time develops a fearful state of mind. Living in constant danger of harm or death, she knows that
future beatings are almost certain to occur and will escalate over time. Her intimate knowledge of the violent
nature of her batterer makes her alert to when a particular attack is forthcoming, and when it will seriously
threaten her survival. Trapped in a cycle of violence and constant fear, it is not unlikely that she would
succumb to her helplessness and fail to perceive possible solutions to the problem other than to injure or kill
her batterer. She is seized by fear of an existing or impending lethal aggression and thus would have no
opportunity beforehand to deliberate on her acts and to choose a less fatal means of eliminating her
sufferings.1
As exhaustively discussed in the ponencia, the "Battered Woman Syndrome" has three phases, to wit: (1) the
tension-building phase, where minor batterings in the form of verbal or slight physical abuse occurs. Here, the
woman tries to pacify the batterer through a show of kind, nurturing behavior; or by simply staying out of his
way; (2) the acute battering incident phase which is characterized by brutality, destructiveness and
sometimes, death. The battered woman usually realizes that she cannot reason with him and that resistance
would only exacerbate her condition; and (3) the tranquil period, where the couple experience a compound
relief and the batterer may show a tender and nurturing behavior towards his partner.
Contrary to the findings in the ponencia, the defense was able to establish the occurrence on more than one
occasion of the "tension-building phase" of the cycle. The various testimonies of appellant's witnesses clearly
reveal that she knew exactly when she would once again be subjected to acute battery. Her cousin, Ecel
Arano, testified that she often asked the latter to sleep in her house as she was afraid every time her husband
came home drunk. Clearly, whenever appellant requested for Arano's company, she was experiencing a
tension-building phase. The barangay captain, Panfilo Tero, also testified that appellant sought his help two
months before she killed her husband, again demonstrating that she was in the tension-building phase and
was attempting to prevent another incident of acute battery. Appellant presented evidence to prove that the
tension-building phase would occur whenever her husband would go out looking for other women, would lose
at cockfights or would come home drunk. She often tried to ignore her husband's attitude or, as testified to by
some witnesses for the prosecution, even shouted back, fought off or even injured her husband during the
tension-building phase, if only to prevent the onset of acute battery.
Appellant was able to perfectly describe the tension-building phase of the cycle immediately prior to the death
of her husband, i.e., when she knew or felt that she was going to be killed by the deceased. She could not

possibly have testified with clarity as to prior tension-building phases in the cycle as she had never tried to kill
her husband before this time.
It was shown by the testimonies of appellant and even witnesses for the prosecution that appellant would
seek shelter in her mother's or her father's house after an acute battering incident, after which would begin
the process of begging for forgiveness, promises of change in behavior and return to the conjugal home, only
for the same cycle to begin all over again.
To require appellant to prove the state of mind of the deceased, as seems to be required in
the ponencia, would mean that no person would ever be able to prove self-defense in a battered woman case.
Appellant could not possibly prove whether the deceased felt provoked into battering by any act or omission
of appellant. She cannot possibly prove that she felt herself to be the sole support of the deceased's
emotional stability and well-being. Nevertheless, appellant felt trapped and helpless in the relationship as, in
the end, she resorted to killing her husband as no one could or did help her, whether out of fear or
insensitivity, during the violent marriage she endured.
The "acute battering incident stage" was well demonstrated by the severe beatings suffered by Marivic in the
hands of the deceased as well as the threats to kill her using a bolo or a cutter.2 The physical abuses occurred
at least 3 times a week in the 11 miserable years of their marriage, 3 six incidents of which were documented
by the 1990-1995 medical records of Marivic. They included, among others, hematoma, contusion, and pain
on the breasts; multiple contusions and trauma on the different parts of her body even during her pregnancy
in 1995.4The tranquil period underwent by Marivic was shown by the repeated "kiss and make-up" episodes of
their relationship. On more than 5 occasions, Marivic ran to her parents' house after violent fights with the
deceased only to forgive the latter every time he would fetch her and promise to change. 5
All these recurring phases of cycle of violence, repentance and forgiveness developed a trauma in the mind of
Marivic making her believe that a forthcoming attack from the deceased would cause her death. This state of
mind of Marivic was revealed in her testimony given way back in 1998, before she was examined by experts
on BWS. Unaware of the significance of her declarations, she candidly narrated how she felt immediately
before she killed the deceased, thus ATTY. TABUCANON
Q So you said that he dragged you towards the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
xxx

xxx

xxx

Q What happened when you were brought to the drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not open it
because he did not have the key. [T]hen he pulled his wallet which contained a blade about 3 inches
long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the
blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was

about to pick-up the wallet and the blade, I smashed him then I ran to the room, and on that very
moment everything on my mind was pity on myself, then the feeling I had on that very moment was
the same when I was admitted in PHILPHOS Clinic, I was about to vomit.
xxx

xxx

xxx6

Q What else happened?

A When I was in the room, I felt the same thing like what happened before I was admitted in PHILPHOS
Clinic, I was about to vomit. I know my blood pressure has raised. I was frightened I was about to die
because of my blood pressure.
xxx

xxx

xxx

A Considering all the physical sufferings that I've been through him, I took pity on myself and I felt I was
about to die also because of my blood pressure and the baby, so I got the gun and shot him. 7
It must be stressed that the defense of "Battered Woman Syndrome" was not raised by Marivic before the
lower court but only here on automatic review. This makes the foregoing testimony more worthy of great
weight and credence considering that the same could not have been cunningly given to suit or conform to the
profile of a battered woman.
Moreover, there was indeed basis for Marivic to fear death because of her medical history. Dr. Dino Caing
testified that he treated Marivic for hypertension due to domestically related emotional stress on 23 separate
occasions. The latest one was on November 6, 1995 when she suffered from severe hypertension and had a
blood pressure of 180/120 on the 8th month of her pregnancy.8
Furthermore, Dr. Natividad A. Dayan, a clinical psychologist and an expert on BWS who examined Marivic,
assessed the effects of the repeated violence on the latter as follows:
A What I remember ... was it was more than ten years that she was suffering from emotional anguish.
There were a lot of instance of abuses, ... emotional abuse...verbal abuse and... physical abuse. The
husband had very meager income, she was the one who was practically the bread earner of the family.
The husband was involved in a lot of vices, going out with barkadas, drinking, even womanizing, being
involved in cockfighting and in going home very angry which... triggered a lot of physical abuse. She
also had the experience of taunting from the husband for the reason that the husband even accused
her of infidelity, the husband was saying that the child she was carrying was not his own. So she was
very angry, she was at the same time very depressed because she .. .[felt] almost like living in
purgatory or even in hell when it was happening day in and day out.
xxx

xxx

xxx

Q And what was it that triggered ... that tragedy in your opinion?
A I think for several weeks, she was already having all those tensions, all those anxieties, they were not
enough, that the husband was even going to cockfighting x x x
A She was angry with him, he was angry with her and I think he dragged her and even spun her around.
She tried to fight him so there was a lot of fight and when she was able to escape, she went to another

room and she locked herself with the children. And when the husband was for a while very angry he
calms down then and then (sic). But I remember before that the husband was looking for the gun and I
think he was not able to open the cabinet because she had the key. So during that time, I remember,
that she was very much afraid of him, so when the husband calmed down and he was asleep, all she
was concerned was to end up her misery, to save her child which she was carrying and to save her two
children. I believe that somehow she's not rational.9
xxx

xxx

xxx

PROS. TRUYA
Q Mrs. Witness, being an expert witness, giving more the facts and circumstances on this case that the
books you studied in the expertise in line and in the 77 hour contact with appellant Mrs. Genosa, could
you say that this is not ordinary self-defense but a survival on her part?
A Yes, sir.
Q To what she did to her husband (sic)?
A Yes, sir this is not an ordinary self-defense, but this [is] a need to survive, a need to survive with her
two sons and [the] child she's bringing.
Q Had she not able to kill her husband, would she still be in the very short moment with the victim
(sic)?
A If she did not do that she believes that she will be the one who would be killed. 10
There is no doubt therefore that Marivic was afflicted with the "Battered Woman Syndrome" and that it was
an apprehension of death and the instinct to defend her and her unborn child's life that drove her to kill her
husband.
The ponente further refused to sustain the self-defense proffered by Marivic because there was allegedly no
aggression or danger posed on her life by the victim at the time she attacked the latter. Again, I beg to
disagree.
Traditionally, in order that self-defense may be appreciated, the unlawful aggression or the attack must be
imminent and actually in existence. This interpretation must, however, be re-evaluated vis-a-vis the
recognized inherent characteristic of the psyche of a person afflicted with the "Battered Woman Syndrome."
As previously discussed, women afflicted by this syndrome live in constant fear for their life and thus respond
in self-defense. Once BWS and an impending danger based on the conduct of the deceased in previous
battering episodes are established, actual occurrence of an assault is no longer a condition sine qua
non before self defense may be upheld. Threatening behavior or communication can satisfy the required
imminence of danger. As stated in theponencia, to require the battered person to await an obvious deadly
attack before she can defend her life would amount to sentencing her to murder by installment.
In the case at bar, the cycle of violence perpetrated by the deceased, which culminated in the physical assaults
and an attempt to shoot Marivic when she was 8 months pregnant, took the place of unlawful aggression,
thus entitling her to a complete self defense even if there was no actual employment of violence by the
deceased at the time of the killing. Marivic had every reason to believe that the deceased would kill her that

night not only because the latter was verbally threatening to kill her while attempting to get a gun from the
drawer, but more importantly because the deceased wounded her on the wrist with a bolo, and because of
the deceased's previous conduct of threatening to cut her throat with a cutter which he kept in his wallet.
Quoted hereunder are the relevant testimonies of Marivic A When I arrived home, he was already in his usual behavior.
xxx

xxx

xxx

A He was drunk again, he was yelling in his usual unruly behavior.

xxx

xxx

xxx

A He was nagging ... me at that time and I just ignore[d] him because I want to avoid trouble for fear
that he will beat me again. Perhaps he was disappointed because I just ignore[d] hi[s] provocation and
he switch off the light and I said to him, "why did you switch off the light when the children were
there." At that time I was also attending to my children who were doing their assignments. He was
angry with me for not answering his challenge, so he went to the kitchen and g[o]t a bolo and cut the
antenna wire to stop me from watching television.
xxx

xxx

xxx

A He switch[ed] off the light and the children were shouting because they were scared and he was
already holding a bolo.
Q How do you describe this bolo?
A 1 1/2 feet.
xxx

xxx

xxx

Q You said the children were scared, what else happened as Ben was carrying that bolo?
A He was about to attack me so I ran to the room.
Q What do you mean that he was about to attack you?
A When I attempted] to run he held my hands and he whirled me and I fell [on] the bedside. 11
xxx

xxx

xxx

xxx

xxx

xxx

COURT
To the witness

Q The bolo that you said which Ben was holding at that time, [was] it a bolo or a knife?
A Bolo.

Q Were you wounded or were there inflictions on your body when he was holding and trying to
frighten you [with] that bolo?
A No, only here.
COURT INTERPRETER
(The witness pointed to her wrist).
COURT
To the witness
Q You were demonstrating a motion, whirling, did your husband really whirl you?
A Yes, your Honor.
Q How did he whirl you?
A Whirled around.
Q Just like spinning.
xxx

xxx

xxx

Q Where did he whirl you, was it inside the bedroom or outside?

A In our bedroom.
Q Then after the whirling what happened?
A He kicked my ass and then I screamed.12
xxx

xxx

xxx

Q You screamed for help and he left, do you know where he was going?
A Outside perhaps to drink more.
Q When he left what did you do...?
A I packed all his clothes.
Q What was your reason in packing his clothes?
A I wanted him to leave us.13
A I was frightened that my husband would hurt me, so I packed all his things then on the following day
I will leave, I was afraid and I want to make sure I would deliver my baby safely.14

xxx

xxx

xxx

A After a couple of hours, he went back again and got angry with me for packing his clothes, then he
dragged me again outside of the bedroom holding my neck.
ATTY. TABUCANON
Q You said that when Ben came back to your house, he dragged you? How did he drag... you?
COURT INTERPRETER
(The witness demonstrated to the Court by using her right hand flexed forcibly in her front
neck)
A And he dragged me towards the door backwards.
ATTY. TABUCANON
Q Where did he bring you?
A Outside the bedroom and he wanted to get something and then he kept shouting at me that "you
might as well be killed so there will be nobody to nag me.
Q So you said that he dragged you towards the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
xxx

xxx

xxx

Q What happened when you were brought to the drawer?

A He dragged me towards the drawer and he was about to open the drawer but he could not open it
because he did not have the key. [T]hen he pulled his wallet which contained a blade about 3 inches
long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the
blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was
about to pick-up the wallet and the blade, I smashed him then I ran to the room, and on that very
moment everything on my mind was pity on myself, then the feeling I had on that very moment was
the same when I was admitted in PHILPHOS Clinic, I was about to vomit.
xxx

xxx

xxx

Q You said that he dropped the blade, for the record will you please
describe this blade about 3 inches long, how does it look like?
A Three (3) inches long and 1/2 inch wide.

Q Is it a flexible blade?
A It's a cutter.
Q How do you describe the blade, is it sharp both edges?
A Yes, because he once used it to me.
Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?
A Yes sir, that was the object used when he intimidate me.15
RE-DIRECT BY ATTY. TABUCANON
Q In other words, there were two (2) incidents, the first incident and then he left and then two (2)
hours after he came back?
A Yes, sir.
Q And the whirling happened in the first incident?
A Yes, sir.
Q And the dragging with arms flexed in her neck and on that blade
happened on the second incident (sic)?
A Ye, sir.
xxx
COURT
To the witness
Q Why, what is that blade about?
A A cutter about 3 inches long.
Q Who used that?
A Ben.
Q He used that on you?
A He scared me on that (sic).

xxx

xxx

xxx

xxx

xxx

Q But he did not hit you with that?

A Yes, because I managed to run every time he scared (sic).16
There are many things which cannot be proved by direct evidence. One of this is state of mind. In the case at
bar, there is more than sufficient physical evidence presented by the appellant from which her mental state
can be inferred. The prosecution did not object to the presentation of these physical and testimonial pieces of
evidence, namely, the medical records of 23 instances of domestic violence-related injuries and the
testimonies of neighbors, cousins and even the barangay captain. Indeed, no person would endure 23
reported instances of beatings if she were planning to kill her spouse in the first place. The majority need not
worry that women around the country will mastermind the killings of their husbands and then use this
Decision to bolster their attempts to employ the BWS defense.
Moreover, as found in the ponencia, appellant should be allowed the mitigating circumstance of passion and
obfuscation. This, at the very least, supports a finding that the acts of violence and battery committed by the
deceased were illegal and unlawful and were committed immediately before appellant could recover her
natural equanimity. But what is the natural equanimity of a battered woman? Appellant was not a normal
married woman. She can never be in a state of natural equanimity as she was in a constant state of alertness
and hypersensitivity to the next phase of acute battery. The esteemed ponente also correctly found that the
appellant acted with diminished will-power. However, he failed to go further. In the case of People v.
Javier,17 it was held:
Since accused-appellant has already admitted to the killing, it is incumbent upon him to prove the claimed
mitigating circumstance of illness. In this case, however, aside from the testimony of the accused that his mind
went blank when he killed his wife due to loss of sleep, no medical finding was presented regarding his mental
condition at the time of the killing. This Court can hardly rely on the bare allegations of accused-appellant, nor
on mere presumptions and conjectures. No clear and convincing evidence was shown that accused-appellant
was suffering an illness which diminished his exercise of will-power at the time of the killing.18
In the case at bar, appellant was allowed and did in fact present clear and convincing evidence that she was a
battered woman for 13-14 years and that she suffered from the "Battered Woman Syndrome". Expert
testimony was presented and admitted to this effect, such that the ponente ably discussed the causes and
effects of the syndrome. To ignore the testimony and the evidence thus presented is to make impossible the
proof of mental state. Evidence as to the mental state need not be also "beyond reasonable doubt."
Verily, the requirement of threatening behavioral pattern of the batterer in previous violent episodes was
sufficiently satisfied in the present case. This, juxtaposed to Marivic's affliction with BWS justified the killing of
the deceased. The danger posed or created in her mind by the latter's threats using bladed weapons, bred a
state of fear, where under the circumstances, the natural response of the battered woman would be to
defend herself even at the cost of taking the life of the batterer.
The ponencia's acknowledgement of "Battered Woman Syndrome" as a valid form of self-defense, is a noble
recognition of the plight of, and a triumph for battered women who are trapped in a culture of silence, shame,
and fear. This would however be an empty victory if we deliberately close our eyes to the antecedents of this
case. The facts are simple. Marivic was suffering from the "Battered Woman Syndrome" and was defending
herself when she killed her husband. Her acquittal of the charge of parricide is therefore in order.

IN VIEW WHEREOF, I vote to ACQUIT Marivic Genosa.

Footnotes
1

Penned by Judge Fortunito L. Madrona.

Assailed Decision, p. 17; rollo, p. 43.

Signed by Provincial Prosecutor I Rosario D. Beleta.

Rollo, p. 9.

Atty. Joventino Isidro. The accused was also represented later by Atty. Gil Marvel P. Tabucanon.

Records, p. 65.

Appellee's Brief, pp. 5-13; rollo, pp. 435-443. Signed by Solicitor General Alfredo L. Benipayo,
Assistant Solicitor General Karl B. Miranda, and Solicitor Ma. Ana C. Rivera.
8

Spelled as "Basobas" in some parts of the record.

Appellant's Brief, pp. 10-71; rollo, pp. 284-345; signed by Atty. Katrina Legarda. Citations omitted.

10

Qualifying her expertise, Dra. Dayan stated that she had been a practising clinical psychologist for
over twenty (20) years. Currently, she is a professor at the De La Salle University. Prior thereto, she was
the head of the Psychology Department of the Assumption College; a member of the faculty of
Psychology of the Ateneo de Manila University and St. Joseph's College; and the counseling
psychologist of the National Defense College. She obtained her bachelor's degree in psychology from
the University of the Philippines (UP), her Master of Arts in Clinical Counseling from Ateneo, and her
Ph.D. also from UP. She is the secretary of the International Council of Psychologists, comprised of
members from about 68 countries; and was the past president of the Psychological Association of the
Philippines. She is a member of the Forensic Psychology Association, the American Psychological
Association, and the ASEAN Counseling Association. She authored the book entitled Energy Global
Psychology (together with Drs. Allen Tan and Allan Bernardo). Dra. Dayan also lectures at the Philippine
Judicial Academy, recently on the socio-demographic and psychological profiles of families involved in
domestic violence cases. On the subject, she had conducted, for over a period of ten years, research on
the profiles of about 500 families involved in domestic violence.
11

Dr. Pajarillo obtained his medical degree from the University of Santo Tomas and has been in the
practice of psychiatry for thirty-eight years. He honed his practice in psychiatry and neurology during
his stint with the Veterans Memorial Medical Centre. Thereafter, he was called to active duty in the
Armed Forces of the Philippines and was assigned at the V. Luna Medical Center for twenty-six years.
He was a diplomate of the Philippine Board of Psychiatry; and a fellow of the Philippine Board of
Psychiatry and the Philippine Psychiatry Association. He was also a member of the World Association of
Military Surgeons; the Quezon City Medical Society; the Cagayan Medical Society; and the Philippine
Association of Military Surgeons. He authored The Comparative Analysis of Nervous Breakdown in the
Philippine Military Academy from the Period 1954-1978, which was presented twice in international
congresses. He also authored "The Mental Health of the Armed Forces of the Philippines 2000," which

was likewise published internationally and locally. On a Parke-Davis grant, he published a medical
textbook on the use of Prasepam; on an ER Squibb grant, he was the first to use Enanthate (siquiline);
and he published the use of the drug Zopiclom in 1985-86. Prior to his retirement from government
service, he obtained the rank of Brigadier General. (TSN, February 9, 2001, pp. 6-9; Exhibits "F"-"F-9"Appellant (Bio-Data of Dr. Pajarillo).
12

This case was deemed submitted for resolution on April 4, 2003, upon receipt by this Court of
appellee's Brief. Appellant's Brief was filed on December 2, 2002.
13

Appellant's Brief, rollo, pp. 346-347. Original in upper case.

14

Caca v. Court of Appeals and People, 341 Phil. 114, July 7, 1997; People v. Paragua, 326 Phil. 923,
May 24, 1996; People v. Tanoy, 387 Phil. 750, May 12, 2000; People v. Magaro, 353 Phil. 862, July 2,
1998.
15

15 of Art. VIII of the Constitution provides:

"Sec. 15. (1) All cases or matters filed after the effectivity of this Constitution must be decided or
resolved within x x x three months for all other lower courts.
"(2) A case or matter shall be deemed submitted for decision or resolution upon the filing of the last
pleading, brief, or memorandum required by the Rules of Court or by the court itself."
16

333 Phil. 20, December 2, 1996, per Puno, J.

17

TSN, September 23, 1997, pp. 11-12 & 14; TSN, November 12, 1997, pp. 29 & 33.

18

TSN, August 6, 1998, pp. 7-8.

19

People v. Sarabia, 376 Phil. 32, October 29, 1999.

20

Appellee's Brief, p. 26, citing People v. De los Reyes, 229 SCRA 439, January 21, 1994. See also 5 of
Rule 110 of the New Rules of Criminal Procedure and People v. Vergara, 221 SCRA 560, April 28, 1993.
21

People v. Rabanal, 349 SCRA 655, January 19, 2001; People v. Cario, 351 Phil. 644, March 31, 1998;
People v. Baniel, 341 Phil. 471, July 15, 1997.
22

People v. Peralta, 350 SCRA 198, January 24, 2001.

23

See Ibn-Tamas v. US, 477 A.2d 626, 1979 DC App. LEXIS 457; McLuckie v. Abbott, 337 F.3d 1193;
2003 US App. LEXIS 15240; DePetris v. Kuykendall, 239 F.3d 1057; 2001 US App. LEXIS 1062; State v.
Kelley, 478 A.2d 364 (1984); McMaugh v. State, 612 A.2d 725 (RI 1992); State v. Frost, 577 A.2d 1282
(NJ Super. Ct. App. Div. 1990); State v. Gallegos, 719 P.2d 1268 (NM Ct. App. 1986); R. v. Lavallee (1990)
1 SCR; Reilly v. The Queen, (1984) 2 SCR 396.
24

Symposium on Domestic Violence. Article: "Providing Legal Protection for Battered Women: An
Analysis of State Statutes and Case Law," LEXSEE 21 Hofstra L. Rev. 801 (Summer 1993), 1161.
25

McMaugh v. State, 612 A.2d 725, 731, quoting L. Walker, The Battered Woman, at XV (1979).

26

People v. Torres, 128 Misc2d, 129, 488 NYS2d 358; McMaugh v. State, 612 A.2d 725.

27

Walker, Lenore, The Battered Woman Syndrome (1984), pp. 95-96. Dr. Walker, a clinical
psychologist, is an acknowledged expert on BWS in the United States. She is a pioneer researcher in
the field. In this book, she reports the results of her study involving 400 battered women. Her research
was designed to test empirically the theories expounded in her earlier book, The Battered
Woman (1979). In 1989, she also wrote Terrifying Love: Why Battered Women Kill and How Society
Responds.
28

Walker, Terrifying Love: Why Battered Women Kill and How Society Responds (Harper Perennial,
1989), p. 42.
29

Ibid. See also R. v. Lavallee, supra; Ibn-Tamas v. US, supra.

30

Ibid.

31

Ibid.

32

TSN, August 6, 1998, pp. 12-19.

33

Exhibits 1 & 1-A; records, p. 44.

34

TSN, August 5, 1998, pp. 14-23, 27-31.

35

TSN, December 16, 1997, pp. 15-17 & 20-21.

36

TSN, May 22, 1998, pp. 2-20.

37

TSN (Arturo Basobas), July 21, 1997, pp. 13, 15 & 21; TSN (Jose Barrientos), December 15, 1997, pp.
17-20; TSN (Junnie Barrientos), December 15, 1997, pp. 35-37; TSN (Ecel Arano), May 22, 1998, pp. 10
& 20.
38

TSN, August 6, 1998, pp. 19-32.

39

TSN, January 15, 2001, pp. 37-38.

40

Id., pp. 51-53.

41

Id., p. 36.

42

Exhibits "G"-"G-3" - Appellant.

43

Ibid.

44

In R. v. Lavallee, supra.

45

Ibid.

46

Fiona E. Raitt and M. Suzanne Zeedyk, The Implicit Relation of Psychology and Law: Women and
Syndrome Evidence, pp. 66-67 (Exh. D).

47

Walker, Terrifying Love, p. 47.

48

TSN, January 15, 2001, p. 18.

49

Id., p. 20.

50

TSN, February 9, 2001, pp. 11-13.

51

Id., p. 14.

52

Walker, Terrifying Love, p. 48.

53

Id., pp. 49-50.

54

Ibid.

55

Dr. Lenore Walker's testimony before the court in Ibn-Tamas, supra.

56

Psychologist Nancy Kaser-Boyd testifying as an expert on the battered woman syndrome in Depetris,
supra.
57

Dr. Lenore Walker's testimony before the court in Ibn-Tamas, supra.

58

Her biological parents lived separately.

59

State v. Kelly, 655 P.2d 1202, 1203 (1982).

60

"The case would rise or fall on whether . . . [appellant] acted in actual fear of imminent harm from
her husband when she shot [or injured] him . . . ." Depetris v. Kuykendall, supra. See also People v.
Torres, 128 Misc2d 129, 488 NYS.2d 358.
61

People v. PO3 Langres, 375 Phil. 240, 258, October 13, 1999.

62

See also People v. Plazo, 350 SCRA 433, January 29, 2001; People v. Cario, 351 Phil. 644, March 31,
1998; People v. Timblor, 348 Phil. 847, January 27, 1998.
63

People v. Saul, 372 SCRA 636, December 19, 2001.

64

People v. Galapin, 355 Phil. 212, July 31, 1998; People v. Panes, 343 Phil. 878, August 29, 1997.

65

State v. Gallegos, 104 NM 247, 719 P.2d 1268, citing Eber, The Battered Wife's Dilemma: To Kill or To
Be Killed, 32 Hasting LJ 895, 928 (1981).
66

Id., citing State v. Walker, 40 Wash.App. 658, 700 P.2d 1168 (1985).

67

People v. Saul, supra.

68

People v. Bato, 348 SCRA 253, December 15, 2000.

69

People v. Maquiling, 368 Phil. 169, June 21, 1999; People v. Discalsota, GR No. 136892, April 11,
2002.
70

Exhibits "B" et seq. - Appellant, p. 10.

71

TSN, February 9, 2001, p. 19.

72

Id., pp. 15-17.

73

Id., p. 54.

74

"Art. 13. Mitigating Circumstances. The following are mitigating circumstances:

xxx

xxx

xxx

"9. Such illness of the offender as would diminish the exercise of the will-power of the offender
without however depriving him of the consciousness of his acts."
75

"10. And, finally, any other circumstances of a similar nature and analogous to those above
mentioned."
76

See People v. Javier, 370 Phil. 596, July 28, 1999; People v. Amit, 82 Phil. 820, February 15, 1949;
People v. Francisco, 78 Phil. 694, July 16, 1947; People v. Balneg, 79 Phil. 805, January 9, 1948.
77

People v. Lobino, 375 Phil. 1065, October 28, 1999; People v. Valles, 334 Phil. 763, January 28, 1997.

78

I Reyes, The Revised Penal Code, p. 272 (1998).

79

According to Dr. Lenore Walker, batterers commonly "escalate their abusiveness" when their wives
are pregnant.
80

Id., pp. 17-18.

81

People v. Cabande, 381 Phil. 889, February 8, 2000.

82

People v. Llanes, 381 Phil. 733, February 4, 2000.

83

People v. Albao, 383 Phil. 873, March 2, 2000; People v. Aguilar, 354 Phil. 360, July 10, 1998.

84

TSN, August 6, 1998, pp. 26-32.

85

People v. Buluran, 382 Phil. 364, February 15, 2000; People v. Ereo, 383 Phil. 30, February 22, 2000.

86

People v. Caete, 44 Phil. 478, February 5, 1923; People v. Narvaez, 206 Phil. 314, April 20, 1983.

87

People v. Aguilar, supra.

88

"Art. 64. Rules for the application of penalties which contain three periods.
xxx

xxx

xxx

"5. When there are two or more mitigating circumstances and no aggravating circumstances
are present, the court shall impose the penalty next lower to that prescribed by law, in the
period that it may deem applicable, according to the number and nature of such
circumstances."
xxx

xxx

xxx

89

People v. Narvaez, 206 Phil. 314, April 20, 1983; Guevarra v. Court of Appeals, 187 SCRA 484, July 16,
1990.
90

Basan v. People, 61 SCRA 275, November 29, 1974.

91

5, Indeterminate Sentence Law (Act 4103, as amended).

YNARES-SANTIAGO, J.:
1

People v. Genosa, G.R. No. 135981, 29 September 2000, 341 SCRA 493, 498.

TSN, August 6, 1998, pp. 22-30; 47-49; 50-51.

Id., pp. 8-13, 18.

Exhibit 1, Compilation of Exhibits, p. 44.

TSN, August 6, 1998, pp. 12-13; 36-37.

Id., pp. 27-28.

Id., pp. 31-32.

TSN, August 5, 1998, pp. 21-31.

TSN, January 15, 2001, pp. 38-40.

10

Id., pp. 74-75.

11

TSN, August 6, 1998, pp. 22-25.

12

Id., pp. 47-49.

13

Id., pp. 25-26.

14

Id., p. 34.

15

Id., pp. 26-30.

16

Id., pp. 50-51.

17

G.R. No. 130654, 28 July 1999.

18

Supra, at 581-582.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-8924

November 18, 1913

THE UNITED STATES, plaintiff-appellee,

vs.
DOMINGO RIVERA, ANTONIO RIVERA, and CANUTO BATOON, defendants-appellants.
Julio Borbon Villamor, for appellants.
Office of the Solicitor-General Harvey, for appellee.

CARSON, J.:
This is an appeal from a judgment of the Court of First Instance of the Province of Ilocos Sur, convicting the
three defendants and appellants of the crime of homicide and sentencing them to fourteen years eight
months and one day of reclusion temporal, together with the accessory penalties prescribed by law.
The information charging the commission of the crime is as follows: "That the said Domingo Rivera, Antonio
Rivera, and Canuto Botoon, the defendants above named, on December 27, 1912, in the municipality of Vigan
Province of Ilocos Sur, P. I., did willfully, criminally, and unlawfully, and with abuse of superior strength, wound
and beat Cayetano Peralta, inflicting upon him various injuries as the result of which the said Cayetano Peralta
died on December 31 of the same year; a deed committed in violation of the law."
The evidence of record discloses that on the morning of December 27, 1912, a dispute arose between the wife
of the deceased and the wife of the defendants Domingo Rivera, over some question as to the loan of a pair of
scissors and the failure to return them. Heated and insulting language passed between the women from the
windows of their houses, which were located quite close together. The deceased appears to have been drawn
into the wordy dispute, and as result of an offensive remark made by him to Rivera and his wife, Rivera went
down from his house into the street, and standing in front of the house of the deceased with two stones in his
hands, challenged him to come down and prove which was the better man. The deceased when he heard his
challenge from the street became greatly enraged, picked up a large bolo, rushed out of his house and
advanced on Rivera, who being a much smaller man and seeing his adversary approaching him with wih a
large bolo in his hand, took to flight. The deceased pursued him and inflicted upon him two wounds, one in
the back and one in the side. Rivera ran into the lot of one of the neighbors and finding himself stopped by a
fence, turned and endeavored to defend himself from the onslaught of the deceased with a small knife or
bolo. At that moment the father of Rivera (his coaccused Antonio Rivera) and Canuto Botoon (the other
coaccused) rushed to his assistance. The father with a blow of a heavy piece of cane succeeded in disarming
the deceased and at the same moment Botoon leaped upon him from behind and caught him around the
waist. In the melee, which only lasted a second or two, the accused Domingo Rivera inflicted three wounds
upon the deceased, two in the arms and one in the abdomen. The parties were separated almost immediately
and the wounded man was carried to the municipal building, where he died four days thereafter. Domingo
Rivera, who inflicted the fatal wounds gave himself up to the local authorities, claiming that what he had done
had been done in self-defense. The deceased, in his ante-mortem statement, charged Domingo Rivera with

having inflicted the fatal blow, and Antonio Rivera and Botoon with having joined in the assault by disarming
and holding him while the fight was in progress.
There is considerable conflict in the testimony of the witnesses called at the trial. The story told by the widow
of the deceased, who claimed to have seen all that occured from the window of her house, was substantially
as above related, except that she asserted that when her husband went down-stairs with a bolo in his hand
Domingo Rivera met him in the street and with his bolo inflicted two wounds in his arms; that her husband
then took to flight and ran away from Rivera until he was stopped by the fence in the neighbor's yard, where
the fatal blow was struck, all three of the accused there joining in the attack.
For an examination of all the evidence of record as well as from a consideration of the inherent improbability
of this story, we are well satisfied that the window of the deceased deliberately inverted the facts with the
intention of increasing the criminal liability of the accused.
It is fully and conclusively established that when Domingo Rivera stood in the street challenging her husband
to come down and prove which was the better man, he had two stones in his hands, and it may fairly be
inferred from this fact that at that moment he was not armed with a bolo. The bolo with which the fatal
wound was inflicted was produced at the trial in the court below and was shown to be, by comparison with
the bolo used by the deceased, a relatively small weapon, referred to indifferently by the witnesses as a knife
or a bolo (cuchillo o bolo). It does not appear clearly from the record just where or when Domingo Rivera
secured this bolo, but it seems clear that it must either have been handed to him by some person after the
accused had rushed upon him and put him to flight, or that he drew it from its sheath while he was
endeavoring to make his escape. The deceased was shown to be a much larger and more powerful man than
his adversary, and it would seem to be contrary to the inherent probabilities of the situation to hold that the
smaller man, unarmed or at most armed with a very short small bolo, would succeed in putting to flight his
adversary, who by the window's own statement rushed down from the house to the attack with a large and
dangerous bolo in his hand. Moreover the wounds in the back of Domingo Rivera almost conclusively
corroborate his story and the story of various witnesses who testified that they saw him endeavoring to make
his escape from the deceased.
The accused themselves undertook at the trial to relieve themselves of all criminal responsibility: Domingo
Rivera insisting that he struck the fatal blow in self-defense at the moment when the deceased had left
himself open to attack by a slip as he approached the fenced place where he (Rivera) turned to await him; and
the other two accused insisting that they did not come up to the party until a few moments after the fight
took place, and that they intervened only to help to carry away the wounded man. Their account of the fight
at the fence is in our opinion completely disaproven by the testimony of the witnesses called for both the
prosecution and the defense, and we are satisfied that in declining to tell the truth as to all that occured,
Rivera and Batoon were actuated by the fear that if they had taken an active part in the fight they might be
punished on the charge of unlawfully killing the deceased.
The trial judge accepted the story as told by the window and, erroneously as we are convinced, convicted all
three defendants of the crime of homicide. As to the accused Antonio Rivera (the father of Domingo, who
inflicted the fatal wound) and Canuto Batoon, we think that they were clearly entitled to acquittal on the
ground that their intervention if the affray was actuated solely by a desire to save their kinsman and friend
from imminent danger of death at the hands of his much stronger and better-armed adversary. It seems quite
clear that in striking the bolo from the hands of the deceased and grasping him around the waist, they did no
more than the manifest necessities of the occasion demanded, and that under all the circumstances they
cannot be held criminally liable for their intervention on his behalf. It is not contended that they took any part

in the original dispute which resulted in the fatal affray, nor that they were actuated by revenge, resentment
or any other evil motive. Article 8 of the Penal Code provides that:
The following are exempt from criminal liability:
xxx

xxx

xxx

4. Anyone who acts in defense of his person or rights, provided that the following circumstances
concur:
(1) Unlawful aggression.
(2) Reasonable necessity for the means employed to prevent or repel it.
(3) Lack of sufficient provocation on the part of the person defending himself. lawph!1.net
5. Anyone who acts in defense of the person or rights of his spouse, ascendants, or legitimate, natural,
or adopted brothers or sisters, or of his relatives by affinity in the same degrees, and those by
consanguinity within the fourth civil degree, provided that the first and second circumstances
prescribed in the next preceding paragraph are present, and the further circumstance, in case the
provocation was given by the person attacked, that the one making defense had no part therein.
6. Anyone who acts in defense of the person or rights of a stranger, provided that the first and second
circumstances mentioned in paragraph four are present, and the further circumstance that the person
defending be not actuated by revenge, resentment, or other evil motive.
As to the accused Domingo Rivera, we are of the opinion that in view of the provocation given by him
to the deceased he cannot be said to have established his claim of absolute exemption from criminal
liability on the ground that the killing of the deceased was done in lawful self-defense. The evidence of
record leaves no room for doubt that he provoked the quarrel which resulted in the death of his
adversary.
Article 86 of the Penal Code provides as follows: "A penalty lower by one or two degrees than that
prescribed by law shall be imposed if the deed were not wholly excusable by reason of the lack of
some of the conditions required for exemption from criminal liability in the several cases mentioned in
article 8, provided that the majority thereof be present. The courts shall impose the penalty in the
degree which may be deemed proper, in view of the number and weight of the conditions of
exemption present or lacking."
Under all the circumstances of this case we are of the opinion that the appellant Domingo Rivera,
although guilty of the crime of homicide, should be given the benefit of the provisions of this article, it
appearing that but for the fact that he himself provoked the fatal quarrel, he would be exempt from all
criminal liability, on the ground that he struck the fatal blow in self-defense. The penalty which should
have been imposed upon him is, therefore, the penalty lower by one degree than that prescribed for
the crime of homicide.
The judgment of conviction and the sentence imposed by the trial court upon all the defendants and
appellants should be and is reversed. The appellants Antonio Rivera and Canuto Batoon should be and
are acquitted of the crime with which they are charged, with their proportionate share of the costs in

both instances de oficio, and they will be set at liberty forthwith. But the defendant Domingo Rivera is
hereby declared to be guilty of the crime of homicide with which he was charged, modified
nevertheless by the fact that the fatal blow would have been struck in lawful self-defense but for the
fact that he himself provoked the assault of his adversary. He should therefore be, and he is hereby,
sentenced to six years and one day ofprision correccional, together with the accessory penalties
prescribed by law, and to the payment of his proportionate share of the cost in both instances.
Arellano, C.J., Torres, Moreland and Trent, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-65762 June 23, 1984
JOSE FRIAS, JR. and GERVACIO TACAS, petitioners-appellants,
vs.
PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN, respondents-appellees.
Marcelino P. Arias for petitioners-appellants.
The Solicitor General for respondents-appellees.

RELOVA, J.:
In this petition for review by certiorari, petition appellants seek reversal of the decision of the Sandiganbayan,
the dispositive part of which reads:
WHEREFORE, accused P/Cpl. GERVACIO TACAS and JOSE FRIAS, JR. are hereby found guilty
beyond reasonable doubt as principals of the crime of Murder, qualified by taking advantage of
superior strength, defined and penalized under Article 248 of the Revised Penal Code. Taking
into account the mitigating circumstance of voluntary surrender without any aggravating
circumstance to offset the same and applying the Indeterminate Sentence Law, both accused
are each sentenced to an indeterminate penalty ranging from ELEVEN (11) YEARS and ONE (1)
DAY of prision mayor, as minimum to EIGHTEEN (18) YEARS and SIX (6) MONTHS of reclusion
temporal as maximum; to pay to the heirs of the deceased Bartolome Arellano, jointly and
severally, P15,000.00 for the death of said victim; P5,311.45 as actual damages; P15,000.00 as
moral damages; compensatory damages of P40,000.00, by way of unrealized earnings; and to
pay the costs.
Subject homemade "bulldog" gin marked Exhibit 1-a is hereby confiscated in favor of the state;
but let the armalite marked Exhibit 1-a which was issued as official service firearm of P/Cpl.
Gervacio Tacas be returned to Sta. Teresita, Cagayan police station for proper disposition. (pp.
96-97, Rollo)
Appellant Gervacio Tacas is a member of the police force of Sta. Teresita, Cagayan; has been a policeman for
24 years and was on duty on August 3, 1980. He admitted having shot Bartolome Arellano on August 3, 1980.
However, he claims that he did so in self-defense and/or in the fulfillment of duty or lawful exercise of a right
or office. As aptly stated by respondent court, "[t]o avoid criminal liability therefor, he has to show to the
satisfaction of the Court the attendance of justifying circumstance or circumstances and must rely on the
strength of his own evidence. He can not depend on the weakness of the prosecution's evidence for even if
weak, it could not be disbelieved after the accused himself owned the killing." (p. 81, Rollo)

Respondent court based its finding of guilt of herein appellants on the testimony of Edita Arellano, daughter of
the deceased, and the testimonies of Francisco Arellano and Ricardo Bilag who both claimed to have
witnessed the killing. Their testimonies, as summarized by the trial court, are as follows:
Testimony of Edita Arellano
"Second witness for the People was Edita Arellano y Pajela, daughter of the deceased Bartolome Arellano. She
testified that her father was a farmer by occupation, planting rice to a 3 hectare land with an average yield of
80 sacks per harvest every semester at P50.00 per sack. According to her, her late father was an early riser. On
August 3, 1980, he was up at 4:00 in the morning and after preparing food, he went out to the field, as he
usually did, to see his carabao. He was in short pants and sweater and unarmed.
"Then, at around 5:30 that fateful morning, she heard a single gunfire followed by three 'bang, bang, bang'
and a series of gunshots thereafter, after which somebody who was running told her that her father was dead.
So, she rushed to the highway and found her dead father lying face down with hands and feet stretched and
right forearm supporting the forehead. Many people were around the cadaver and even as she went nearer,
she saw policemen taking photographs of the deceased. Then, Cpl. Tabarrejo turned the cadaver face upward
and placed over the abdomen a gun and knife afterwhich pictures thereof were again taken; but she did not
see where Cpl. Tabarrejo got the said gun and knife.
"Pointing to accused Gervacio Tacas in Court, this prosecution witness also testified that she did not know
what to do and was crying hysterically in front of Tabarrejo when the aforementioned acts were being done
with her dead father. She was the only one left at home because her mother went to Laoag City. Ignorant,
helpless, shocked, and speechless, she just. watched what the policemen were doing to the mortal body of her
late 56 year-old father." (pp. 38-39, Rollo)
Testimony of Francisco Arellano
"According to him, on the night of August 2, 1980, he was in the dance hall within the poblacion of Sta.
Teresita, Cagayan. He slept there and went home at about 5:00 the following morning, reaching Simpatuyo by
jeep an hour later. He met accused Gervacio Tacas on the bridge. Tacas, in under wears, was holding an
armalite and was with Jose Frias, Jr. who was armed with a carbine. Being still a second cousin of Tacas, he
was not afraid. He trailed Tacas just one and a half meter on the same side of the barangay road while Frias
walked eight meters from them on the other side of the road. From such vantage position, he saw Frias aiming
a carbine at Bartolome Arellano who was then facing Tacas and eight meters from Frias. Bartolome Arellano
was unarmed and was walking slowly in a stooping manner at the place reflected in the sketch (Exhibit F). It
was Tacas who first shot Arellano before Frias also fired at the latter but he could not ten if Bartolome was hit
then. Thereafter, Bartolome Arellano ran and Tacas moved such that the latter was about to meet the former.
However, when Bartolome Arellano noticed the approaching Tacas, Arellano turned around and ran back to
where he was formerly (the spot marked B. Arellano in Exhibit F) even as Frias moved to the 'RIC' which is
made of hollow blocks and Tacas returned to the edge of the LB canteen. He was beside Tacas when Tacas and
Frias fired. Both Tacas and Frias fired twice but more reports came from Tacas who touched the automatic
lever of his gun. After the firing was over, Arellano whirled around and fell face down in the place where there
is a palm tree, witness recounted.
"Elaborating on how he managed to observe the happening in question, he explained that he was only a meter
away from Tacas and five to six meters from Frias when the assailants shot the victim. Being still a second
cousin to Tacas, he even commented to Tacas 'No more, Manong' but this was after the victim fell and was
dead already. Upon seeing his dead cousin, fear seized him because Tacas might also turn against him. Before

leaving the scene, however, he tried to go closer to the fallen victim but only to be told by Tacas 'Get away
from there; otherwise, I will pulverize your face.' Apprehensive of what could happen to him in such a perilous
situation, he left, witness narrated.
"This prosecution witness also identified Exhibits E and E-1 to be the pictures of the deceased Bartolome
Arellano, a first cousin of his. He admitted that he was never investigated by the police and did not present
himself to the PC authorities in Aparri or elsewhere for investigation in connection with the incident under
inquiry; and that it was only before Fiscal Ferrer the day before he testified in court that he executed an
affidavit for the first time in relation to this case. He never moved to another place since the time of the
shooting at bar took place but he was not able to present himself as a witness earlier for the reason that some
people in their locality made him understand that he is disqualified to be a witness in the case involving a first
cousin of his. He was still at the scene of the crime when police probers arrived but because he was never
asked, he did not volunteer any information. However, he told Edita, daughter of the deceased, that he
witnessed the shooting but she said 'Never mind, Tatang.' During the burial, he also informed other relatives,
like his Uncles Mando Arellano and Tolentino Arellano, of what he saw in the same way that he told the
bereaved widow of the victim. During the wake, there were also police investigators but inasmuch as nobody
inquired as to who shot the victim, he did not tell anything to the investigators; besides, he was out for work,
witness who insisted that he witnessed the shooting complained of, pointed out.
"Finally, this witness divulged that the victim was not carrying anything at the time the two accused shot him
(victim).lwphl@it In fact, the victim was only wearing short pants and 'bad shirt,' he added." (pp. 40-43, Rollo)
Testimony of Ricardo Bilag
"Ricardo Bilag y Sotelo, security guard by occupation and who stayed in barangay Simpatuyo, Sta. Teresita,
Cagayan from July 23, 1980 to January 1981, was the fourth People's witness in this case. Among other things,
he declared that during the aforesaid period, he sojourned with his cousin, Ernesto Lazo, whose house is
located in the place indicated with initial 'EL' (Exhibit F-1) in Exhibit F. On August 3, 1980, he was, therefore, in
the house of Ernesto Lazo. Waking up at 5:45 a.m. on Id date, he was by the window facing the national road
to San Vicente when he witnessed the unusual incident wherein Bartolome Arellano was killed. Before
Bartolome Arellano was fatally shot, the latter was walking on the national road and was being followed by
accused Gervacio Tacas who was with an armalite. Tacas was wearing brief and sleeveless shirt. Standing by
the road behind Tacas was accused Jose Frias, Jr. who was with a carbine. At the far end of the barangay road
walking to and fro around four meters from Tacas was Francisco Arellano. Bartolome Arellano was without
any weapon. He was wearing dark shoes and brown long sleeves shirt.
"According to this witness, when Tacas was following Bartolome Arellano, the latter went to hide behind the
'RIC' concrete marker even as Tacas was aiming the gun at him (Bartolome Arellano). After Tacas fired twice,
Bartolome Arellano ran towards a 'silag' tree about 12 meters from the 'RIC' concrete market but he was again
followed by Tacas who crossed the national road and went near the same 'silag' tree; and when Bartolome
Arellano tried to go to the national road and was passing by the store, the latter was shot by Tacas, at which
precise time, Frias was at the roadside, lying with stomach down and aiming also his gun at Bartolome
Arellano. Frias maintained such position while Bartolome Arellano was behind the 'RIC' concrete marker and
fired once at the latter. Then, when Bartolome Arellano went to the place of the 'silag' tree, Frias remained
thereat and when Bartolome Arellano was moving to the national road, Frias stood in the middle of the road
and fired again but he (witness) could not tell if the victim was hit. After Bartolome Arellano was shot by
Tacas, said victim slowly slumped to the ground and thereafter, Frias went home. It was Tacas who first fired
at the victim where the victim was passing near the store. Frias fired later at the victim who was then slowly

slumping to the ground. He subsequently saw Edita, daughter of the deceased, crying by the side of her fallen
father, so this witness recollected.
"He likewise divulged that he executed his affidavit (Exhibit G) on September 14, 1980 before Provincial Fiscal
Bello in Aparri, Cagayan. Afraid that the culprits might kin him, he motored 30 kilometers to Aparri subscribe
and swear to such sworn statement of his. He is not related in anyway to the. deceased. He actually saw
Francisco Arellano at the crime scene. He even told Sianing Arellano, a brother. of the deceased, of that fact.
"On cross-examination, this prosecution witness testified further that his permanent place of abode is
Dapdap, Amulong, Cagayan, more or less 80 kilometers from Simpatuyo, Sta. Teresita. However, he used to go
to Sta. Teresita for vacation. He only does not know if the people of said place know him well. In the last week
of July 1980, he was staying in the house of his cousin, Ernesto Lazo, four houses from Gervacio Tacas' house.
Before July 23, 1980, he did not personally know Bartolome Arellano. Although he knows Raymundo Arellano,
supposed to be one of the richest resident in the place, he was not aware that Raymundo is the father of
Bartolome. Reminiscing how he happened to be a witness in the case, this witness disclosed that upon the
request of Sianing Arellano, Ernesto Lazo asked him if he was really present during the happening of the
incident in question and he answered his cousin affirmatively. He admitted, however, that he was never
investigated by the police. Not having been asked by the police officers who were at the crime scene, he did
not volunteer any information. Neither did he let Edita, daughter of the deceased, know what he saw. He only
decided to give his written statement on September 14, 1980 in Aparri in which statement he was not able to
mention the presence of Francisco Arellano at the crime scene. Said affidavit of his was made by Atty. Jose
Brillantes in Bugey, Cagayan in the presence of another witness and a brother of the deceased. Prior thereto,
he was also called once by Mayor Bernoli Arquero of Sta. Teresita and requested by the Mayor to testify for
the prosecution; but the sole reason for him to testify in court is to help the court gather the truth regarding
the shooting incident under inquiry.
"This witness also narrated that it was only after the incident at bar that he learned that Jaime Yerre, Jr. and
Manuel Pajela were also shot on August 3, 1980 and he heard that it was Bartolome Arellano who shot the
two during a mahjong game; but he does not know if the buckshot used by Bartolome Arellano in shooting
said victims was recovered by the police authorities. According to him, Bartolome Arellano was not carrying
anything when he saw him after hearing the first burst of gunfire." (pp. 43-47, Rollo) The trial court said:
Obviously, unlawful aggression is the main ingredient of self-defense. Without unlawful
aggression, there can be no self-defense, complete or incomplete. And it is unlawful aggression
which imperils one's life, limb or right either actually or imminently, that makes the invocation
of self-defense feasible. In short, before he was shot to death, did the victim create or
constitute any menace to the accused? Painstakingly evaluating the gamut of evidence at hand,
We can not divine how an unarmed person could have done unlawful aggression against two
heavily armed men. To be sure, the showing that Bartolome Arellano was without any deadly
weapon when he met his violent death is too overwhelming to be overlooked. Waking up at
4:00 in the morning of August 3, 1980, as was his daily routine, he cooked food for his family
after which, with short pants and "bad shirt" to cover his body, he went down for the nearby
ricefield to attend to his working animal. It does not appear that he had any gun or even a bolo.
Indeed, from all appearances, he did not go out to do violence against anybody. In fact, he was
seen later by the prosecution witnesses, notably Francisco Arellano, Jr. and Ricardo Bilag, going
from one place to another in a determined effort to save dear life from the advancing Gervacio
Tacas and Jose Frias, Jr. who were combat-ready and armed to the teeth. Said prosecution
witnesses succinctly testified that Bartolome Arellano was not holding anything at that unlucky
moment. If he had a bulldog gun and a bolo tucked to the waist, considering that it was already

6:00 in the morning at the time, bright enough for everybody to observe the happening under
inquiry, it would be easy for the prosecution witnesses to detect any weapon in the possession
of the victim but the truth is he had none and could not have been a real to the life and limb of
Tacas and Frias who were respectively armed with an armalite and a carbine. As a matter of
fact, the victim was actually running away. Then, too, if there was any cap for him to sender by
the heavily armed Tacas who was assisted by Frias, Bartolome Arellano would have meekly
heeded the same, no doubt.
All things considered, We find the victim incapable of unlawful aggression. The situation he was
in belies self-defense.
Absent unlawful aggression on the part of the victim it is needless for Us to discuss lengthily the
other requirements for valid self-defense. As aptly held in a recent decision of Ours, when there
is no unlawful aggression to speak of, there is nothing to defend against or repel And the
requisites that there be reasonable necessity in the means employed to repel unlawful
aggression and lack of sufficient provocation on the part of the person defending himself have
no room for application.
Neither is the justifying circumstance of fulfilment of duty under paragraph 5 of Article 11 of
the Revised Penal Code availing, it appearing that the victim was truly unarmed and it was not
necessary to shoot him. Peace officers are never justified in using unnecessary force, wanton
violence or dangerous means. Not even a hardened criminal should be handled in the manner
complained of. (pp. 82-84, Rollo)
However, the Solicitor General, in his Comment, said that the findings of the trial court are not supported by
the evidence; that an objective analysis of the evidence in fact discloses overwhelming proof that Bartolome
Arellano was armed and shot certain persons, including appellant Tacas. He recommends acquittal of
petitioners-appellants.
Manuel Pajela and Jaime Yerre, Jr. testified that while they were playing mahjong at about 5:30 in the morning
of August 3, 1980, they were fired at with a shotgun by Bartolome Arellano. Prosecution witness Ricardo Bilag
confirms the version of the defense that Bartolome Arellano shot and wounded Pajela and Yerre with a
shotgun. Hereunder is Bilag's testimony on this point
ATTY. PAZ:
Q And you heard that first shot before you saw Jose Frias, is that right?
WITNESS:
A Yes, sir.
ATTY. PAZ:
Q Now, tell the truth Mr. witness. Did you come to know that on the morning of
August 3, 1980, BARTOLOME Arellano shot at the persons who were playing
mahjong at Simpatuyo and wounded two of them?
WITNESS:

A After the incident I came to know there were two persons hit.
ATTY. PAZ:
Q And these persons whom you came to know who were hurt were Jaime Yerre,
Jr. and Manuel Pajela?
WITNESS:
A Yes, sir.
ATTY. PAZ:
Q And you even heard after the incident that it was Bartolome Arellano who
shot Jaime Yerre and Manuel Pajela which cause their injury?
WITNESS:
A After that incident I also heard the same thing that he shot Jaime Yerre and
Manuel Pajela.
ATTY. PAZ:
Q And you heard also that Bartolome Arellano shot them on August 3, 1980 with
a buckshot?
PRESIDING JUSTICE PAMARAN:
You are assuming that he knows what a buckshot is.
ATTY. PAZ:
I will lay the basis.
JUSTICE ESCAREAL:
Q Do you know what a buckshot is known in Cagayan?
WITNESS:
A Yes, sir.
JUSTICE ESCAREAL:
Q What is it?
WITNESS:
A A gun with 13 cage bullets.

JUSTICE ESCAREAL:
Q Meaning a shotgun using 12 bullets that is usually used in some parts of
Cagayan even before Martial Law?
WITNESS:
A Yes, sir. (pp. 50-62, tsn., hearing November 19, 1981)
Further, he admitted that when he (Bilag) saw appellant Tacas that early morning, the latter was wearing only
a brief and sleeveless shirt. This supports the testimony of Tacas that he was sleeping when he was suddenly
awakened by the sound of gunfire followed by cries of Pajela's wife for help; that looking at the window, he
saw Pajela bleeding and about to be carried inside his house; and that he then grabbed his service armalite
and went down in his brief and undershirt. As observed by the Solicitor General, if Tacas did plan the killing of
Arellano, he would have put on a more respectable attire. The fact that he went out in the street in his brief
confirms the truth of his testimony that he merely responded to an urgent call for help.
Dr. Ferdinand Cario of the Ponce Enrile Memorial Hospital testified that on August 3, 1980 he treated Manuel
Pajela and Jaime Yerre for gunshot wounds and were thereafter confined at the hospital.
With respect to the testimony of Francisco Arellano, the Solicitor General claims that the same is "so
unbelievable that no one hardly knows where to begin in pointing out the falsity of his declaration. Thus:
1. The improbability of F. Arellano's testimony is no more manifest than from his claim that he
was present when the crane was committed. Could it be believed that Tacas, a veteran
policeman for 24 years would be so rash as to ambush the deceased in the presence of his first
degree cousin? (pp. 22-24, tsn., October 28, 1981).
2. The testimony of F. Arellano that Bartolome Arellano was shot while unarmed and in
coldblood is rendered more improbable by the time and place of the incident. The road is
hardly the place to court murder, especially when it is 'already bright.' (pp. 20, 27, tsn., October
29, 1981).
3. F. Arellano testified that before the shooting, there were many people near the bridge who
witnessed the shooting. They were "Edring, Dianong, Mr. Consejal Pagarigan, Macario Soliven,
Ernesto Gallardo" and the father of the victim (pp. 32-34, tsn, October 29, 1981). Why would
Tacas kill B. Arellano under the circumstances depicted by the prosecution? Common sense
dictates against acceptance of a story that pictures a lawman killing an old and defenseless man
for no apparent reason and in the presence of so many witnesses.
4. F. Arellano could not even be consistent. On direct examination, he declared that he was
beside Tacas when the latter shot and killed B. Arellano (p. 8, Decision).lwphl@it On crossexamination,. he was no longer beside Tacas but five to six meters away (p. 9, Decision).
5. F. Arellano declared that Tacas was wearing 'short pants (P. 11, Decision). What the other
eyewitness for the prosecution saw was something else. According to Bilag, Tacas was wearing
only a "brief" (p. 11, Decision). If indeed Tacas was wearing a brief, Bilag's testimony
complements the testimony of Tacas that he was sleeping when awakened by the sound of

gunfire and hurriedly went down ' to investigate. Either F. Arellano or Bilag is lying. Both can
not be right.
6. F. Arellano's testimony was that Tacas and Frias were walking when they met B. Arellano (p.
8, Decision). What Bilag saw was B. Arellano being followed by Tacas (p. 11, Decision).
7. F. Arellano declared that Tacas shot B. Arellano upon seeing him (p. 8, Decision appended to
Petition). Bilag's testimony is different. Although on direct examination, Bilag declared that
Tacas fired two shots when B. Arellano hid behind the 'RIC' concrete marker, he clarified this on
cross-examination, declaring that when Tacas fired his first shot, the gun was aimed upwards
(p. 64, tsn., November 19, 1981). Bilag further testified that when B. Arellano reached the silag
tree, Tacas fired another shot aimed "upwards" (p. 69, Id.)
xxx xxx xxx
8. F. Arellano was not listed as one of the prosecution witnesses. He simply appeared out of the
blue as a witness for the prosecution on October 28, 1981, one year, two months after the
incident and while the trial was in progress. In fact, his affidavit was executed only the day
before he testified, or on October 27, 1981.
His appearance only at the trial is unnatural because, according to him, he had told the widow
of the victim and his uncles, Raymundo and Tolentino Arellano at the wake that he witnessed
the incident (p. 33, tsn., October 28, 1981; pp. 12-15, tsn., October 29, 1981). He also claims to
have told Edita, the victim's daughter, after the burial (p. 32, tsn., October 28 , 1981). And yet
he was not investigated. Nor did he present himself for investigation to the police, PC or fiscal.
Plainly, he was a conjured witness for the prosecution.
xxx xxx xxx
9. There is paucity of material details in the testimony of F. Arellano. Thus, Bilag who was
farther away from Tacas heard more of Tacas' words and saw more of Tacas' movements and
actions than F. Arellano who claims to have been only a few meters distant from Tacas.
10. F. Arellano testified that he saw Ricardo Bilag before and after the shooting near or at the
scene of the crime (pp. 30-34, tsn., October 29, 1981).
According to Bilag, he was not investigated by the police; because he "did not get near the
scene of the crime" (p. 38, tsn., November 19, 1981).
11. The testimony of F. Arellano starts only from. the time Tacas and Frias were about to shoot
B. Arellano. It does not therefore refute the testimony of the defense witnesses that before
Arellano was killed, he shot Manuel Pajela and Jaime Yerre Jr. with a shotgun. (pp. 129-131,
134-135, Rollo)
On the other hand, appellant Gervacio Tacas testified that at about 5:00 in the morning of August 3, 1980, he
was awakened from his sleep by the sound of gunfire, that hearing a woman shouting for help east of his
house, he opened the window and saw Pajela slumped on a table, blood oozing from his body, that he
grabbed his armalite rifle, went out and saw Bartolome Arellano with a gun proceeding towards the RIC
marker (p. 20-26, tsn., January 11, 1983." (pp. 126-127, Rollo)

Appellant Jose Frias testified that "at about 5:30 in the morning of August 3, 1980, he was awakened when he
heard a loud explosion coming from the eastern side of his house. that he looked out of the window and saw
Pajela lying on a table, bleeding, that he went down and saw Tacas, his father-in-law, calling upon Bartolome
Arellano to surrender; and that Bartolome Arellano was in the street proceeding towards the RIC marker, and
that Bartolome Arellano was armed with a "bulldog" shotgun (pp. 5-9, tsn., March 14, 1983)." (p. 127, Rollo)
The testimonies of petitioners-appellants were corroborate by Teodoro Paguirigan, a nephew of Bartolome
Arellano; Modesto Macarubbo, Station Commander of Sta. Teresita Police Station, and Cpl. Silvino Tabarrejo.
Teodoro Paguirigan declared that when he heard gunfires at about 5:00 in the morning of August 3, 1980, he
stood-up, looked out of the window and saw Bartolome Arellano leaving the house of Pajela with a shotgun on
his hand and a bolo on his waist. Later, Paguirigan saw Bartolome Arellano point his gun and shot at Tacas.
Modesto Macarubbo testified that when he arrived at the scene of the incident, he recovered a shotgun and a
bolo from under the body of Bartolome Arellano. The gun had one (1) empty shell in its chamber,
Corporal Silvino Tabarrejo, who arrived at the place with Commander Macarubbo, said Bartolome Arellano's
right hand was holding a homemade shot gun while on his waist was tucked a knife.
The above testimonies find corroboration on the fact that pellets, gauge 12 (Exhibits 1b2 and 1b3 were
extracted by the police from one of the posts of Eny Peralta's store where appellant Tacas sought cover. These
pellets match the empty shell, which is also gauge 12, found in the shotgun's chamber (Exhibit 1b As correctly
observed by the Solicitor General, "these items, taken together with the testimonies of both the defense and
prosecution witnesses, indubitably prove that Bartolome Arellano was armed and he shot at appellant Tacas."
(p, 128, Rollo)
The law recognizes the non-existence of a crime when it expressly stated in the opening sentence of Article 11
of the Revised Penal Code that the persons therein mentioned "do 4 not incur any criminal liability." If there is
a circumstance justifying the defendant's act, he is exempt from both criminal and civil liability, except in
paragraph 4 of this Article 11, where the civil liability is borne by the persons benefited by the act.
The fifth justifying circumstance which exempts a person from criminal liability is found in this provision: "Any
person who acts in the fulfillment of a duty or in the lawful exercise of a right or office." The requisites of the
defense of fulfillment of duty are: (1) that the accused acted in the performance of a duty or in the lawful
exercise of a right or duty; (2) that the injury caused or the offense committed be the necessary consequence
of the due performance of duty or the lawful exercise of such right.
The Solicitor General expressed the view, with reason, that Tacas acted in the performance of his duty. Again,
We quote from the brief of the Solicitor General:
... The information clearly states so, thus: "That the crime was committed by the accused
Gervacio Tacas in relation to his office as a policeman" (p. 2, Decision). And so do the facts
he was awakened from his sleep by the sound of gunfire followed by cries of a neighbor for
help; he stood up, look out of the window, saw Pajela bleeding on top of a table about to be
carried to his house; he grabbed his armalite rifle, went out of the house, saw Bartolome
Arellano with a shotgun leaving Pajela's yard, went after him, fired warning shots and asked
him to surrender undisputed facts which clearly show that Tacas acted in the performance of
his duty.

Anent the second requisite that the injury caused or the offense committed be the necessary
consequence of duty or the lawful exercise of right or office it is difficult not to give Tacas the
benefit of the doubt. It is shown by the evidence that B. Arellano was armed with a shotgun. It
is undisputed that Tacas fired a warning shot, asked B. Arellano to surrender, and then fired
another warning shot. So when B. Arellano refused to surrender but tried to elude arrest and
pointed his gun at Tacas, first at the RIC marker and then at the silag tree, Tacas had very little
choice but to use his weapon. In fact, according to Paguirigan, B. Arellano and Tacas fired
"simultaneously" (p. 24, Decision).lwphl@it
While there are limits to the lawful exercise of a right or duty, at the same time, it should not be
required of a policeman to unnecessarily expose himself to peril. In this case, B. Arellano was
armed, refused to surrender, tried to elude arrest, pointed his shotgun at Tacas and later shot
at him. As it was the duty of Tacas to arrest B. Arellano and to prevent him from escaping,
sooner or later, it would come to the point where the lawman and the suspect had to face each
other. In that crucial moment when Tacas and B. Arellano, both armed, faced each other, they
had to make a split decision of putting their guns down or firing. They both elected to fire and
B. Arellano was killed while Tacas survived. Under these circumstances, it can hardly be said
that Tacas should not have fired at all. As his life was in peril, his judgment can not be
questioned. (pp. 148-149, Rollo)
With respect to the case of appellant Frias, the Solicitor General submits that "apart from the dubious and
false testimonies of F. Arellano and Bilag, the prosecution has not shown any positive and convincing evidence
of conspiracy." He divulged that
1. There is total absence of motive for Frias to shoot B. Arellano, a fact plainly overlooked by
the trial court. In the absence of motive, it is difficult to assume that Frias conspired with Tacas
in murdering B. Arellano.
2. There is total absence of evidence that Frias and Tacas planned to kill B. Arellano. In fact, the
circumstances surrounding the death of B. Arellano simply point only to one question, that is,
whether the killing was justified by the defense of fulfillment of duty.
3. Assuming arguendo that Frias also shot at B. Arellano, his participation in the incident was
purely accidental and unforeseen, geared most probably to the protection of Tacas, his fatherin-law, as the trial court itself assumed (p. 58. Decision). That negates conspiracy.
4. The relationship of Frias and Tacas is no proof of conspiracy (People vs. Geronimo, 53 SCRA
246). (p. 156, Rollo)
It is settled rule that conspiracy can not be presumed, but must be proven as convincingly as
the crane itself. The crime of murder has not beer proven. There is therefore hardly any reason
to convict Frias as a co-conspirator of Tacas. (p. 157, Rollo)
ACCORDINGLY, as recommended by the Solicitor General on the ground that Gervacio Tacas acted in the
fulfillment of a duty and in the legitimate exercise of his authority, said appellant is hereby ACQUITTED of the
crime charged.
For insufficiency of evidence, appellant Jose Frias, Jr. is also ACQUITTED.

SO ORDERED.
Makasiar, Concepcion, Jr., Guerrero, Melencio-Herrera, Plana Escolin, Gutierrez, Jr., De la Fuente and Cuevas,
JJ., concur.
Fernando, C.J., Teehankee, Aquino and Abad Santos, JJ., took no part.

FIRST DIVISION

[G.R. Nos. 149430-32. February 23, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. CARMELO CATBAGAN, appellant.

DECISION
PANGANIBAN, J.:
There can be no self-defense, whether complete or incomplete, unless the victim had committed unlawful
aggression against the person who resorted to self-defense.

The Case
Carmelo Catbagan appeals the May 19, 1999 Decision[1] of the Regional Trial Court (RTC) of Malolos,
Bulacan (Branch 21), in Criminal Case Nos. 1082-M-98, 1083-M-98 and 1099-M-98. In these cases, he was
convicted of homicide, murder and frustrated murder, respectively.
The decretal portion of the RTC Decision reads as follows:
In sum and considering the foregoing findings, the Court hereby resolves and so states that the defense has
not been able to overcome the moral certainty established upon the accuseds culpability. Stated otherwise,
the prosecution has successfully discharged its undertaking herein. Accordingly, this Court finds and so holds
that accused Carmelo Catbagan is GUILTY beyond reasonable doubt of the crimes of Homicide in Crim. Case
No. 1082-M-98, Murder in Crim. Case No. 10[8]3-M-98 and Frustrated Murder in Crim. Case No. 1099-M-98.
In Criminal Case No. 1082-M-98, the Court hereby credits the accused with the mitigating circumstance of
incomplete self-defense pursuant to Article 13, paragraph 1 of the Revised Penal Code. In which event, what
should be imposable as penalty is the minimum of Reclusion Temporal. Considering the application of the
Indeterminate Sentence Law, accused Carmelo Catbagan is hereby sentenced to suffer the indeterminate
prison term of ten (10) years and one (1) day of Prision Mayor maximum to fourteen (14) years of Reclusion
Temporal minimum.
In Criminal Case No. 1083-M-98, absent any circumstance that would aggravate the commission of the crime,
the accused is sentenced to suffer the penalty of Reclusion Perpetua together with the accessory penalties.
In Criminal Case No. 1099-M-98, since the crime committed is Murder in its frustrated stage, it is the penalty
next lower in degree that should be imposed, which is Reclusion Temporal. However, with the application of

the Indeterminate Sentence Law, accused Carmelo Catbagan is hereby sentenced to suffer the indeterminate
prison term of ten (10) years of Prision Mayor medium to fifteen (15) years ofReclusion Temporal medium.
In addition to the foregoing, the accused is also directed to pay the heirs of deceased Celso Suico the sum
of P500,000.00 in loss of earning capacity, P50,000.00 as indemnity for Suicos death, and the further sum
of P100,000.00 as and for moral damages. With respect to deceased Danilo Lapidante, the accused is ordered
to pay his heirs the sum P400,000.00 in loss of earning capacity, the sum ofP50,000.00 as indemnity for
Lapidantes death, the sum of P100,000.00 as moral damages, and also the amount of P50,000.00 x x x for
actual damages. Finally, respecting complainant Ernesto Lacaden, the accused is directed to pay him the sum
of P50,000.00 as and for moral damages and the sum of P6,400.86 as actual damages.
With costs against the accused.[2]
Except for the names of the victims, two (2) similarly worded criminal Informations [3] in Criminal Case Nos.
1082-M-98[4] and 1083-M-98,[5] both dated July 21, 1998, charged appellant as follows:
That on or about the 15th day of March, 1998, in the [M]unicipality of San Jose del Monte, [P]rovince of
Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed
with a gun, caliber .9MM pistol, and with intent to kill one x x x, did then and there wilfully, unlawfully and
feloniously, with evident premeditation and treachery, attack, assault and shoot with the said caliber .9MM
pistol said x x x, hitting the latter on the different parts of his body, thereby inflicting upon him mortal wounds
which directly caused the death of the said x x x.[6]
For the third crime, the Information,[7] also dated July 21, 1998, charged appellant with frustrated murder
allegedly committed in this manner:
That on or about the 15th day of March, 1998, in the [M]unicipality of San Jose del Monte, [P]rovince of
Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed
with a caliber .9MM pistol, did then and there wilfully, unlawfully and feloniously, with intent to kill, evident
premeditation and treachery, attack, assault and shoot with the said caliber .9MM pistol one Ernesto Lacaden
y Tacata, thereby inflicting upon him physical injuries, which ordinarily would have caused the death of the
said Ernesto Lacaden y Tacata, thus performing all the 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 said Ernesto Lacaden y Tacata which
prevented his death.[8]
Appellant was arraigned on August 26, 1998 in Criminal Case Nos. 1082-M-98 and 1083-M-98. With the
assistance of counsel de oficio,[9] he pleaded not guilty to both charges.[10] Thereafter, he was arraigned in
Criminal Case No. 1099-M-98, in which, with the assistance of his counsel de oficio,[11] he also pleaded not
guilty.[12]
Upon motion of appellant, the three cases were consolidated. After pretrial, trial on the merits ensued,
and the lower court eventually promulgated its assailed Decision. Counsel[13] for appellant filed the Notice of
Appeal[14] on July 5, 1999, but upon discovering that it contained an error in the designation of the court to
which the case was being appealed, he filed an amended Notice of Appeal on September 10, 1999. [15]

The Facts
Version of the Prosecution

In its Brief,[16] the Office of the Solicitor General (OSG) presents the prosecutions version of the facts as
follows:
Danilo Lapidante, an employee of the Manila Water Company, held his birthday party on March 15, 1998,
one day in advance of his actual birthdate. That was intended to accommodate his many relatives and friends
who trooped to his residence that Sunday at Block 5, Lot 28, Phase C-1 Francisco Homes, Barangay Mulawin,
San Jose del Monte, Bulacan Province. As it was already summertime, and on account of the big attendance,
the party had to be held in a vacant space within the fenced perimeter, with vehicular and pedestrian steel
gates. In front thereof was a narrow concrete street.
Inasmuch as Lapidante saw to it that drinks like gin and beer and appetizers were plenty, even before 10:00
A.M., inevitably, the revelers were already displaying excitement. Some were engaged in singing over a
karaoke, while one Sgt. Celso Suico of the Philippine Air Force and of the elite Presidential Security Group,
who lived in another phase of the subdivision, demonstrated his exuberance by firing shots into the air with
his Armalite rifle. Since the gunshots continued to ring out, and election gun ban was then in effect, the
attention of Carmelo Catbagan, an investigator of the Criminal Investigation Service, Philippine National
Police, whose residential unit was just one block away south of the Lapidantes, was called.
When, by 5:00 p.m., Catbagan went there to verify from the group who among them had been firing the rifle,
no one of those within the fenced area gave a positive answer. The embar[r]assed Catbagan left the
place. Coincidentally, some minutes before that, Lapidante, driving his owner-type jeep, conducted home
some of his guests. Accompanying him were Sgt. Suico and his companion Ernesto Jun Lacaden. Even as
they returned the Armalite to the PSGs residence at Phase M, Suico substituted it with a government-issued
Springfield .45 caliber pistol which he tucked to his waistband as they went back to rejoin the party.
By about 5:30 p.m., while the celebrants were being entertained with a song by the eldest daughter of
Lapidante, Catbagan with *Zosimo+ (Jess) Fababier returned to Lapidantes place on board a motorized
tricycle. This time, after he alighted on the street in front, when Catbagan inquired about the gunshots of the
Armalite, Sgt. Suico answered that Its nothing; its just a part of the celebration. Suddenly, a piece of stone
hurled from the direction of the celebrants house landed on a tree and thence to the body of
Catbagan. Irritated and reacting thereto, the CIS agent directed Fababier to look for the one who threw the
stone.
At that moment, Sgt. Suico got out of the pedestrian steel gate and extended his hand towards Catbagan in
the street as he introduced himself as being a PSG. Completely ignoring the gesture of the latter, Catbagan
drew out his .9mm automatic pistol and with both hands holding the gun, fired successively at Suico, who
when hit stretched out his hand, shouting Huwag (Dont) Pare. Despite this Catbagan fired more shots at the
victim who fell on the pavement, bloodied and dying from mortal wounds.
As the shots were fired, Jun Lacaden who was taking a nap on the front seat of the owner-type jeep parked
on the other side of the street, in front of the residential unit of Aida Villanueva, was abruptly awakened. Not
fully aware of what happened, he disembarked therefrom without knowing what to do. Unexpectedly, two
shots were also fired at him by Catbagan. One bullet found its mark in the body of Jun Lacaden who then fell
down.
Almost simultaneously, Catbagan directed his attention to Lapidante who was then inside their compound in
the vicinity of their steel main gate. Upon the prompting of his wife Rosita for him to run and evade the
assailant, the celebrant turned towards the main door of their house. But before he could reach the safety of

their abode, two rapid shots were aimed by Catbagan at him, one of which hit him in the upper part of his
body.
After causing the mayhem, Catbagan then proceeded eastward to the main road. Thereupon, Charles
Lacaden picked up the weapon of the PSG man and threw it to a vacant lot somewhere at the rear of the
house and lot of Lapidante. As a consequence of the injuries they sustained, Sgt. Suico died on the spot;
Lapidante later died in the hospital in Lagro, Quezon City; whereas Jun Lacaden had to be treated and
confined at the East Avenue Medical Center, Quezon City.
Police investigators went to the scene and there recovered some pieces of evidence.
The .45 caliber Springfield pistol of Suico was retrieved in a place at the back of the Lapidante residence. With
a bullet vertically standing on the chamber, it had misfired due to some vital defects. There were six (6) live
ammunitions of the .45 caliber pistol excluding the vertical one. No empty shell of .45 caliber pistol were
recovered. There were nine (9) empty shells of the .9 mm pistol; and a deformed slug of the same weapon,
aside from many shells from the Armalite rifle.
Upon examination of Sgt. Suicos body, Dr. Dominic Aguda of the National Bureau of Investigation found four
(4) gunshot wounds, to wit:
No. 1 - left upper chest;
No. 2 - left chest above left nipple;
No. 3 - left anterior portion of forearm;
No. 4 - right palm (inside)
Dr. Aguda concluded that the victim died from massive bleeding of the four injuries. The most fatal was
wound No. 1 as it perforated the aorta and the right upper lung. Death therefrom was instantaneous. He
opined that this wound was inflicted in a level from a higher plane, whereas the others may have been
inflicted on some level with the victim. Suico died of massive bleeding.
As regards the victim Lapidante, as shown by Dr. Agudas schematic sketch and the post-mortem autopsy
report, the entry wound was at the left side of the back, exiting at the right anterior portion of the chest in a
forward and upward trajection. The bullet hit the upper left tube of the left lung and then penetrated the
upper lobe of the right lung. The victim also died from massive bleeding.
From the shapes and measurement of the wound of entry, Dr. Aguda stated that the (weapon) firearm used
in the shooting of the two victims were probably the same, they being approximately 1 x 1 cm.
With respect to Jun Lacaden, Dr. Cristina Atienza of the East Avenue Medical Center found that he was hit at
the right side of the back, the scapular and the bullet exited at the uppermost part of the left arm, near the
armpit. She said that as the slug entered the thoracic cavity, they had to insert a tube to evacuate blood. Said
victim was confined for more than one week, and it would have taken another 30 days for the victim to
resume his usual activity.[17]

Version of the Defense

Appellant argues that he was justified in shooting the victims, as he was merely defending himself and
fulfilling his sworn duties. On the basis of these justifying circumstances, he insists on his acquittal. In his
Brief,[18] he summarizes his version of the facts as follows:
The defense had a different version of the circumstances that led to the shooting incident on March 15,
1998. On said date, between 9:00 and 11:00 in the morning, ERNESTO PURBOS heard successive gunshots
coming from the residence of Danilo Lapidante at San Francisco Homes, San Jose del Monte, Bulacan. The
gunshots numbered about ten (10) in the span of two (2) hours. Alarmed and scared, as there were children
then playing in the vicinity, he went to the house of Carmelo Catbagan to report the gun firing incident. He
pleaded Catbagan, known in their place as a policeman, to maintain the peace in the neighborhood. He was
worried that the children might be hit accidentally by the revelry. Catbagan retorted not to mind the revelers,
as they were just drinking. He then went home.
At around 4:00 in the afternoon, he again heard successive gunshots coming from the house of the
Lapidantes. The gunshots were louder and rapid in succession. Fearing for the safety of the children playing
in the vicinity, he again proceeded to the house of Catbagan, pleading the latter to pacify or maintain order in
the place. Catbagan replied that he would call the attention of the Barangay Captain and advised him to go
home.
ZOSIMO PAVABIER corroborated the testimony of witness Ernesto Purbos. On March 15, 1998, between the
hours of 9:00 and past 11:00 in the morning, he heard several gunshots coming from the house of Danilo
Lapidante. The reverberating gunshots were again heard at around 4:00 in the afternoon, prompting him to
go out to the street to observe the commotion. In the street, he saw children playing as well as a group of his
neighbors talking about the gunshots coming from the house of the Lapidantes. The neighbors were
complaining that the children might be accidentally hit and that there was a gunban. On his way home, he met
Carmelo Catbagan, who asked if he would accompany him to the barangay captain to report the
incident. Catbagan was then limping and there was something bulging in his waist. They proceeded to the
house of the barangay captain onboard a tricycle. Upon reaching the place, the wife of the barangay captain
informed them that her husband left for the police precinct and instructed them to proceed to the house of
the Lapidantes as the barangay captain might be already there. Catbagan then told him to proceed to the
barangay hall to call upon the tanods, but the place was closed. They then proceeded to the house of Danilo
Lapidante.
At the residence of the Lapidantes, they found several persons engaged in a drinking session. Catbagan then
introduced himself as a CIS and inquired who fired the firearm. The merrymakers ignored Catbagan and
continued their merrymaking. Seconds later, somebody threw a fist sized stone at Catbagan, hitting the
lat[t]er on the shoulder. The stone came from the side of the kitchen of the Lapidantes. Catbagan directed
him to find out who threw the stone. After he had taken five steps, he saw Danilo Lapidante emerge from the
side of the kitchen, rushing towards Catbagan. About the same moment, Jun Lacaden and Celso Suico were
likewise proceeding towards the gate. Lacaden then went on the side of Catbagan, who was stepping
backward, while Suico, uttering that he is a PSG, drew his .45 caliber pistol and cocked it. Instinctively,
Catbagan drew his gun and fired at Suico, hitting the latter with three shots. Lacaden, who was attacking
Catbagan from the side, was shot by the latter once. Seeing what happened to his companion, Danilo
Lapidante hurriedly retreated towards his house, shouting repeatedly akina iyong mahaba. Catbagan made
one shot upward, yelling at Lapidante, pare, pare, huwag kang tatakbo. As Lapidante continued proceeding
towards his house, Catbagan fired at him once. Taken aback by the sudden turn of events, he retreated
towards his house and just peeped over the window. He then saw Catbagan rushing towards his own house,
gather his children and leave. At around 6:30 in the evening, he was picked-up by police authorities for
investigation.

JONATHAN BELLOSILLO, the Barangay captain of Barangay Mulawin, Francisco Homes San Jose del Monte,
Bulacan, confirmed that a complaint/report was made by Carmelo Catbagan at his home office, anent a
gunfiring incident, at around 4:30 in the afternoon of March 15, 1998. The Barangay Captain likewise testified
on the several complaints he received against Danilo Lapidante, for conducting gambling and Jun Lacaden, for
mauling incidents.
The accused, CARMELO CATBAGAN, testifying on his behalf, averred that he is a regular agent of the Criminal
Investigation and Detection Group (CIDG), with a rank of Crime Investigator I. As a regular agent of the CIDG,
he was issued two (2) official firearms, a 9MM Jericho pistol and a.38 caliber revolver. His principal duties
were to protect the innocent against deception, [and] against violence, arrest felons, and in general, to
respond to all calls for public assistance.
On March 15, 1998, he was at his residence at Block 5, Lot 11, Phase 6-1, Francisco Homes, San Jose del
Monte, Bulacan, tending to his five (5) children. His wife was then in the province. At around 9:00 to 11:00 in
the morning, he heard several burst[s] of gunfire coming from the direction of the rear portion of his house. A
neighbor, Ernesto Purbos, then came to his house complaining about the gunshots. Manong Erning wailed
that the gunshots might accidentally hit the children playing in the street. Having told from where the
gunshots came from, he pacified the complainant telling him that the revelers were just engaged in
merrymaking and that they will just stop later on. Ernesto Purbos then went home.
The peace in the vicinity was again disturbed at around 4:00 in the afternoon of the same day. Loud burst of
rapid gunshots, to the tune of the song Lets Go, were again heard coming from the same direction as that in
the morning. From his experience, he knew that the firearm used was an armalite (M-16). Two of their
neighbors came to him complaining about the gunshots. He advised them to go to the barangay captain and
he will just follow after finishing his chores. He then heard a woman scream, complaining that the shots were
being directed towards the firewall of the house neighboring that of the Lapidantes. Ernesto Purbos likewise
returned, echoing his previous complaint about the gunshots. He assured Purbos that he would act on his
complaint, but first he would go to the barangay captain to report the incident. He then got his service
firearm and went out. On his way to the house of the barangay captain, he met Zosimo Pavabier, who
likewise complained of the gunshots. He asked Pavabier to accompany him and the two of them proceeded to
the house of the said official. When they reached their destination, however, the wife of the barangay official
told them that her husband has gone to the Police on the Block Headquarter. Learning the purpose of their
visit, the wife told them to just proceed to the vicinity in question as her husband might already be there. On
their way, they went by the barangay hall to fetch some tanods, but the place was closed. They then
proceeded to the house of the Lapidantes.
Upon reaching the house of the Lapidantes, Catbagan and Pavabier noticed that the Barangay Captain was
not yet there. They likewise noticed that there were several persons having a drinking spree inside the
compound. Catbagan introduced himself as a CIS and inquired upon the group who fired the gunshots. The
merrymakers, however, ignored him and laughed. As he was telling the group that: Dont you know there
are many residents here and you might hit somebody, a fist sized stone was thrown which hit his left
shoulder. The stone came from the rear of the house of the Lapidantes. Alerted by the hostility of the crowd,
he instructed Pavabier to look for the one who threw the stone at him. As Pavabier was about to comply with
his instructions, Danilo Lapidante emerged from the side of his house and rushed to where he was standing,
uttering: ano ba ang problema pare? About the same time, two more persons suddenly came out of the
compound of the Lapidantes, rushing and encircling him. One of the aggressors, Ernesto Lacaden, was toting
an ice-pick on one hand and positioned himself at his side. The other, whose identity he did not kn[o]w at that
moment, went straight to him, drew a gun from his waist and cocked it, after which, aimed the pistol at him,

uttering Pare PSG ito, in an arrogant voice. Threatened of his safety, he drew his own gun while stepping
backward and fired at the aggressors.
Simultaneously, Danilo Lapidante retreated towards his house, shouting: Akina yung mahaba, yung mahaba,
while Jun Lacaden attacked him coming from the side, with the ice-pick. Catbagan side stepped and fired a
shot at Lacaden before turning his attention at Lapidante. He fired a warning shot, uttering: Tumigil ka,
huwag kang kikilos. Lapidante, however, did not heed Catbagans warning and continued rushing towards his
house, as if to get something. Fearing that Lapidante might be able to get hold of the long gun, Catbagan fired
a shot at him once.
Concerned for his safety and that of his family, Catbagan brought his five children to the house of his sister in
Malabon, Metro Manila. He then surrendered himself and his firearms to his superior officer at the CIDG
Office.
ATTY. VIRGILIO PABLICO Y TABALBA, Chief of the CIDG Legal Office and immediate superior of the accused,
testified on the latters official duties and functions as well as his voluntary surrender on March 16,
1998[.] Accordingly, accused Carmelo Catbagan was appointed as a regular and non-organic member of the
CIDG, with a rank of Criminal Investigator I. His official functions include the authority to conduct investigation
of cases involving violations of the Revised Penal Code and other special laws, to effect arrest and to conduct
search in accordance with existing rules, to take sworn statements and to appear as a witness in appropriate
forum. As a regular agent, Catbagan was issued and authorized to carry a firearm. The issued firearm to
Catbagan was a 9MM Jericho pistol, with Serial No. 000748. Catbagan, as a CIDG agent, was likewise
deputized by the COMELEC and granted an exemption to carry firearm during election period.
On March 15, 1998, at around 8:00 to 10:00 in the evening, he received a telephone call from Agent
Catbagan, informing him that he was involved in a shooting incident, wherein he was able to shoot three (3)
persons. Two (2) of the protagonists allegedly died and the other was wounded and taken to a
hospital. Catbagan intimated that he wanted to be put under his custody as soon as a he made arrangements
for his childrens security. On March 16, 1998, at around 1:00 in the afternoon, Catbagan presented himself to
Police Superintendent Edgardo Acua together with his service firearm.[19]

Ruling of the Trial Court

The RTC held that appellant did not know who had fired the gunshots at Lapidantes party; thus, he could
not claim that he had gone there to perform his duty to make an arrest. Consequently, it brushed aside his
defense of fulfillment of duty, or lawful exercise of a right or office. It did not give credence, either, to his
invocation of self-defense.
With respect to Celso Suico in Criminal Case No. 1082-M-98, the trial court ruled that there was unlawful
aggression on the part of the victim, but that the means employed to repel such aggression was unreasonable.
It entertain*ed+ serious doubts on the right of the *appellant+ to continue firing at Suico after the latter was
dispossessed of his gun due to the injuries received from the gunfire of the assailant. [20] It credited appellant
with incomplete self-defense, because he supposedly lost the right to kill or even wound the victim after the
unlawful aggression had ceased.
The RTC refused to qualify the crime against Suico. Ruling that there had been no evident premeditation
and treachery in the killing, it found appellant guilty only of the crime of homicide.

As regards the victim Danilo Lapidante in Criminal Case No. 1083-M-98, he was undisputedly unarmed, as
he was inside his own premises -- within his fenced front yard -- at the time of the incident. Thus, the lower
court found no act of aggression on his part. It held that the belief on the part of *appellant+ that the victim
was about to retrieve a rifle from the doorside of the house, existed only in his imagination. [21] Consequently,
there was no moment for *appellant+ to validly state that his own life [was] in imminent danger from
Lapidante.[22]
Aside from rejecting self-defense, the trial court also held that treachery had attended the killing, because
the unarmed victim had unexpectedly been shot while his back was towards appellant.
Finally, in Criminal Case No. 1099-M-98, the court a quo found that Ernesto Lacaden had been shot in the
back, apparently while in the act of fleeing from the fury of gunfire from *appellant+.[23] It did not accept the
allegation that the victim had been carrying an ice pick at the time of the shooting. Nonetheless, it explained
that even if he indeed had one at the time, he could not have done any real harm to appellant who was just
too far from him. Absent any clear and convincing proof that Lacaden committed unlawful aggression, selfdefense -- whether complete or incomplete -- could not be appreciated.
The RTC found the crime against Lacaden to be qualified by treachery, as he had not posed any imminent
danger to appellant. It ruled that treachery was proven by the following circumstances: (1) the fact that the
victim was running away from the scene of the crime; and (2) appellants use of his .9 mm automatic pistol, a
lethal weapon used to wound the formers vital organs. Since death did not ensue by reason of causes
independent of the will of appellant, the court a quo found him guilty of frustrated murder.
Hence, this appeal.[24]

The Issues
Before us, appellant assigns to the trial court the following alleged errors for our consideration:
I
The court a quo gravely erred in finding accused-appellant Carmelo Catbagan guilty beyond reasonable doubt
of the offenses charged in Criminal Case Nos. 1082-M-98, 1083-M-98 and 1099-M-98, respectively.
II
The court a quo gravely erred in failing to rule that accused-appellant Carmelo Catbagan acted in the
fulfillment of his sworn duties and/or acted in self-defense in the commission of the offenses charged.
III
Granting arguendo that the accused-appellants guilt was proven beyond reasonable doubt, the court a quo
still committed a reversible error in not considering the attendance of the mitigating circumstance of
voluntary surrender in the imposition of the appropriate penalties for the offenses proved during the trial.[25]
In sum, the issues to be resolved are as follows: 1) whether appellant was justified in shooting the victims
as a direct result of his fulfillment of a lawful duty and self-defense; 2) whether he could be credited with
the mitigating circumstance of voluntary surrender; and 3) whether the characterization of the crimes and
penalties imposed by the trial court was correct.

The Courts Ruling

The appeal is partly meritorious.

First Issue:
Fulfillment of a Lawful Duty
In criminal cases, the prosecution has the burden of establishing the guilt of the accused beyond
reasonable doubt. But once the commission of the act charged is admitted, the burden of proof shifts to the
accused, who must now prove the elements of the justifying circumstances cited.[26]
Appellant invokes his lawful performance of duty as one such circumstance, arguing that his presence at
the scene of the incident, prompted by the complaints in their neighborhood and his own personal knowledge
relative to the wanton discharge of a firearm, the effectivity of the election gun ban, his coordination with the
authorities of the barangay, and the inquiry he made to the revellers, were all in consonance with the
legitimate performance of a sworn duty.[27] Citing these specific facts, he argues that he was justified in
shooting the victims. In effect, his contention is that, being a regular agent of the Criminal Investigation and
Detection Group (CIDG) of the Philippine National Police (PNP), he was justified in maintaining public order, as
well as in protecting and securing life and property.
Although he is correct in arguing that he had the legal obligation to maintain peace and order, he was not
justified in shooting the victims. Article 11 of the Revised Penal Code (RPC) provides that a person who acts in
the fulfillment of a duty or in the lawful exercise of a right or office does not incur any criminal liability. Two
requisites must concur before this defense can prosper: 1) the accused must have acted in the performance of
a duty or in the lawful exercise of a right or office; and 2) the injury caused or the offense committed should
have been the necessary consequence of such lawful exercise.[28]
These requisites are absent in this case. Appellant was not performing his duties at the time of the
shooting, because the men he shot had not been indiscriminately firing guns in his presence, as he
alleges. Further, as found by the RTC, nothing was mentioned in *his+ direct testimony that he was there to
effect an arrest.[29] Said the trial court:
While he might have heard of gunfire, since there is no proof to the effect that Catbagan had personal
knowledge that it was Suico who had been firing the Armalite, under no circumstances may it be said that the
accused was justifiably there to perform the duty of making the arrest in accordance with existing laws and
rules.[30]
At most, appellant was in the house of the Lapidantes to determine who had fired the gunshots that were
heard by the neighborhood. But the fatal injuries that he inflicted on the victims were not a necessary
consequence of the performance of his duty as a police officer.
Indeed, his presence at the scene of the incident *was+ all in the legitimate performance and fulfillment
of a sworn duty.[31] He was duty-bound to find out who had fired the gun that day and to maintain peace and
order in the neighborhood. But his act of shooting of the victims cannot be justified. His presence at the
scene of the incident should be distinguished from his act of shooting them.
Appellant cites People v. Cabrera[32] to support his argument that he was performing his duty and was
thus justified in shooting the victims. There is an important distinction between the present case
and Cabrera. In the latter, the disturbance had been created by the victim in the presence of the accused, who

therefore had the duty to immediately intervene and subdue the former, who was causing danger. In the
present case, appellant had no personal knowledge of who had fired the gunshots. Thus, his duty at the time
was simply to determine who was the subject of the complaints of the residents of the village. It was never
shown, though, that the shooting was in furtherance of or was a necessary consequence of his performance of
such duty.
To be sure, the right to kill an offender is not absolute, and may be used only as a last resort, and under
circumstances indicating that the offender cannot otherwise be taken without bloodshed. The law does not
clothe police officers with authority to arbitrarily judge the necessity to kill. It may be true that police officers
sometimes find themselves in a dilemma when pressured by a situation where an immediate and decisive, but
legal, action is needed. However, it must be stressed that the judgment and discretion of police officers in the
performance of their duties must be exercised neither capriciously nor oppressively, but within reasonable
limits. In the absence of a clear and legal provision to the contrary, they must act in conformity with the
dictates of a sound discretion, and within the spirit and purpose of the law. [33]

Second Issue:
Self-Defense
Appellant also invokes the principle of standing ones ground when in the right. Allegedly, since he had
the right to be where he was, the law does not require him to step aside when his assailant is rapidly
advancing upon him with a deadly weapon.[34] We clarify. Article 11 of the RPC provides:
ART. 11. Justifying circumstances. The following do not incur any criminal liability:
1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur:
First.

Unlawful aggression;

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

Third. Lack of sufficient provocation on the part of the person defending himself."
In self-defense, proof by clear and convincing evidence is incumbent upon the accused.[35] Appellant
cannot rely on the weakness of the evidence for the prosecution, which can hardly be disbelieved after he
himself admitted that he had shot the victims.[36] A judicial confession constitutes evidence of a high order, on
the presumption that no sane person would deliberately confess to the commission of an act unless moved by
the desire to reveal the truth.[37]
As the RTC correctly did, we should look at the circumstances of the shooting in the case of each victim.

Circumstances Surrounding
the Death of Suico
The first requisite of self-defense is unlawful aggression by the person who is eventually injured or killed
by the accused.
This Court is convinced that the RTCs finding of unlawful aggression on the part of Suico is supported by
the records, and we see no reason to disturb those findings. Ruled the lower court:

Under the given situation wherein the Sergeant cocking the pistol was one who was trained, and skilled in the
handling of guns, plus the fact that he was drunk, the Court cannot blame accused Catbagan to believe and
fear that Suico would attack him in that mock introduction.[38]
The prosecution presented, in fact, conflicting accounts of how Suico had been shot. The shooting
allegedly happened after he had offered a handshake to appellant, [39]according to Rosita Lapidante, the wife
of another victim. On the other hand, Charlie Lacaden, the brother of still another victim, gave testimony that
conflicted with hers. Suico was allegedly shot by appellant when the former turned his back to the latter.
On the other hand, appellant[40] and Defense Witness Zosimo Pavabier[41] positively and consistently
testified that it was Suico who had first drawn and aimed his gun at appellant. This assertion was confirmed
by the physical evidence that the victims gun had a live bullet sandwiched between its breechblock and
chamber.[42] This fact proves that the gun was cocked and fired, but that the bullet was jammed in the process.
The prosecution tried to explain this occurrence by inconsistent and incongruous statements. According
to the testimony of Rosita, Charlie took the gun from Suicos belly then aimed it at appellant, but the gun did
not fire because it was defective.[43] According to the testimony of Charlie, on the other hand, he took the gun
because he was afraid that appellant would come back, but that he later threw it towards the rear portion of
the house.[44] Thus, the RTC concluded:
As regards the proof that Suicos gun misfired due to vital defects in its mechanism, the Court suspects
that the firearm was tampered with to create the scenario that the PSG man was without fault. In fact, Mrs.
Lapidante and Charles Lacadens testimonies regarding what was done to the gun after the incident are in
conflict with each other.[45] (Italics supplied)
Unlawful aggression is an actual physical assault, or at least a threat to inflict real imminent injury, upon a
person.[46] In case of threat, it must be offensive and strong, positively showing the wrongful intent to cause
injury -- as in this case. Thus, Suicos act of aiming a cocked gun at appellant is sufficient unlawful aggression.
The second element of self-defense -- reasonable necessity of the means employed to prevent or repel it - requires the following: 1) a necessity of the course of action taken by the person making the defense and 2) a
necessity of the means used. Both the course of action taken and the means used must be reasonable. [47]
Appellant argues that he was justified in wounding Suico, because the latter was armed with a deadlier
weapon and was still persistently aggressive after being shot the first time. The former maintains that *t+he
fact that [he] struck one blow more than [what] was absolutely [necessary] to save his own life, or that he
failed to hold his hand so as to avoid inflicting a fatal wound where a less severe stroke might have served the
purpose, would not [negate] self-defense, because [he], in the heat of an encounter at close quarters, was not
in a position to reflect coolly or to wait after each blow to determine the effects thereof. [48]
The means employed by the person invoking self-defense is reasonable if equivalent to the means of
attack used by the original aggressor.[49] Whether or not the means of self-defense is reasonable depends
upon the nature or quality of the weapon, the physical condition, the character, the size and other
circumstances of the aggressor; as well as those of the person who invokes self-defense; and also the place
and the occasion of the assault.[50]
The RTC made a definitive finding on the unreasonableness of the means employed by appellant as
follows:
However, what followed, as testified by witnesses was that Catbagan continued firing even while Suico was
pleading Huwag pare! with outstretched hand and open palm of his right hand. While the accused asserted
that he had to fire his gun and hit Suico with more shots to totally disable him, the same cannot be believed by

the Court, if we take stock of Dr. Agudas testimony that with the injured arm and that on the chest being
inflicted with the first double tap shots; the victim would have had much difficulty to retaliate. In fact,
Catbagan himself stated on clarification questions that the .45 caliber gun of the victim fell already so that the
threat of continued aggression was no longer present.
xxx

xxx

xxx

On this point, the Court entertains serious doubts on the right of the accused to continue firing at Suico after
the latter was dispossessed of his gun due to the injuries received from the gunfire of the
assailant. Additionally, we cannot accept as credible Catbagans statement that he had to fire again at Suico
inasmuch as the latter had stooped acting to pick up his own pistol from the pavement. If ever the victim was
positioned that way, it was more of the impact of the bullets that hit him. The logical explanation can be
derived from the presence of the entry wound in the inside of Suicos right palm. [51]
These findings are well-supported by the evidence on record. Clearly, the nature and the number of
gunshot wounds -- debilitating, fatal and multiple -- inflicted by appellant on the deceased shows that the
means employed by the former was not reasonable and commensurate to the unlawful aggression of the
latter. The unreasonableness becomes even more apparent from the fact, duly admitted by appellant himself,
that Suico had obviously been inebriated at the time of the aggression. It would have thus been easier for the
former to have subdued the victim without resorting to excessive means.
Finally, as to the element of lack of sufficient provocation on the part of the person resorting to selfdefense, appellant has sufficiently established that he went to the house of the Lapidantes to find out who
had fired the gunshots earlier that day. There was therefore absolutely no provocation from him, either by
unjust conduct or by incitement, that would justify Suicos acts of cocking and aiming a gun at him.
Not having proven all the elements of self-defense, appellant cannot use it to justify sufficiently his fatal
shooting of Suico. Having proven a majority of the elements, however, the former may still be credited with a
mitigating circumstance in accordance with Article 13[52] of the RPC.

Circumstances Surrounding
the Shooting of Lapidante
With respect to Lapidante, he allegedly rushed towards his house to get hold of the mahaba, so
appellant had no other recourse but to shoot him. The purpose of the victim in rushing towards his house was
supposedly to recover the advantage he had previously enjoyed. Hence, it is argued that unlawful aggression
was present.
We disagree with appellants averments. Unlawful aggression presupposes an actual, sudden and
unexpected attack or imminent danger thereof. Such aggression refers to an attack that has actually broken
out or materialized or is at the very least clearly imminent; it cannot consist merely of any oral threat or
intimidating stance or posture. [53]
In this case, the RTC was categorical in ruling that the perceived danger was more in the mind of appellant
than in reality. The circumstances did not point to any actual or imminent peril to his life, limb or right. On
the part of Lapidante, the act of running towards his house can hardly be characterized as unlawful
aggression. It could not have imperiled appellants life.
In a previous case,[54] this Court ruled that a threat even if made with a weapon or the belief that a
person [is] about to be attacked, is not sufficient, but that it is necessary that the intent be ostensibly revealed

by an act of aggression or by some external acts showing the commencement of actual and material unlawful
aggression.[55] We agree with the RTCs ratiocination, which we quote:
With respect to the incident involving the victim Lapidante, it is not disputed that he was unarmed as he was
inside his own premises within the fenced area in front of his house. What acts of aggression against
Catbagan which he did are not apparent to us. To this Court, the belief on the part of Catbagan that the victim
was about to retrieve a rifle from the doorside of the house, existed only in his imagination.
Aside from its intrinsic ambiguity, the claims of the defense witnesses about the alleged utterance of
Lapidante about Ang mahaba! an*g+ mahaba! do not sit well with this Court. Indeed, we are not convinced
that he could have uttered that statement since the evidence points to the fact that he and his friends had just
arrived from another phase of the subdivision upon having delivered thereat, the Armalite of Suico. On the
contrary, Lapidante appeared to have been gripped by fear and was obviously trying to escape from
harm. Indeed, there was no moment for Catbagan to validly state that his own life [was] in imminent danger
from Lapidante.[56]
Neither do we accept the contention that unlawful aggression by Lapidante was shown by his act of
rushing towards his house for the purpose of taking a more advantageous position. Referred to here is the
rule that if it is clear that the purpose of the aggressor in retreating -- or, as in this case, Lapidantes rushing
towards his house -- is to take a more advantageous position to ensure the success of the attack already
begun, the unlawful aggression is considered still continuing; and the one resorting to self-defense has a right
to pursue and disable the former.[57]
Obviously, this rule does not apply to Lapidante, because 1) there was no clear purpose in his act of
retreating to take a more advantageous position; and 2) since he never attacked appellant in the first place,
the former could not have begun any unlawful aggression and, hence, would not have had any reason to take
a more advantageous position. How could there have been a continuation of something that had never been
started? If any aggression was begun in this case, it was by Suico, not by Lapidante.
Hence, no unlawful aggression by Lapidante was shown. Because the presence thereof is a statutory and
doctrinal conditio sine qua non of the justifying circumstance of self-defense[58] -- complete or incomplete -we need not examine the presence of the other requisites.

Circumstances Surrounding
the Shooting of Lacaden
Appellant asserts that Lacaden attacked him with an ice pick from the side. Allegedly, this act clearly
showed unlawful aggression on the latters part. All the pieces of evidence on record, however, point to the
absence thereof.
Most crucial is the position of the gunshot wound. As testified to by the doctor who had treated the
victim, its point of entry was on the right side of the back, just below the scapula. [59] This incontestable fact
belies the claim of appellant that he was attacked by Lacaden with an ice pick. Such attack would have
required the latter to face him; and, logically, a gunshot entry wound would have been in the front -- not in
the back -- portion of Lacadens body. The wound in the back of the victim clearly shows that he was shot
while his back was turned to appellant. Hence, there was no unlawful aggression on the part of the former.
Neither was any ice pick presented in the proceedings before the RTC. Appellant maintains that his
testimony, coupled with that of Pavabier, is sufficient to establish the existence of the weapon. But the

prosecution witnesses, including the victim himself, testified otherwise -- that there was no unlawful
aggression during the incident, much less with the use of an ice pick. The RTC held thus:
In the case of Jun Lacaden, he was shot in the back which could only corroborate the evidence to the effect
that he was also in the act of fleeing from the fury of gunfire from Catbagan. As to the allegation of the latter
that Jun Lacaden had an icepick, that claim is rather nebulous. Firstly, as veteran criminal investigator, he
should have taken, kept and presented that said instrument to augment his legal excuse. Secondly, if really
there was one, it is rather surprising why he did not demand Jun Lacaden for its surrender initially as he
passed thru the pedestrian steel door and subsequently while the latter had positioned himself near the
owner-type jeep.
More importantly, granting that Jun Lacaden had an icepick, and/or had any design to launch an attack
against Catbagan, the former was just too far a distance away to do real harm to the accused. From 6-7
meters, as clarified from the accused himself, it is ridiculous for us to believe that Jun Lacaden could stab him.
More so because the accused himself testified that the two arms of Jun Lacaden were raised upward which is
not to mention that Catbagan had already demonstrated his proficiency and accuracy in the use of his .9 mm
automatic pistol. Thus, there was, like that of Lapidante, no occasion to find as existing, the element of
unlawful aggression.[60]
Appellant has presented no sufficient reason to overturn these conclusive findings of the trial
court. Aside from being completely in accord with logic and human experience, they are too solid to be
debunked by him.

Third Issue:
Voluntary Surrender
Finally, appellant argues that even on the assumption that his guilt was proven beyond reasonable doubt,
he is still entitled to a mitigating circumstance. According to him, he voluntarily surrendered to the authorities
after the occurrence of the incident, a fact not only uncontroverted but even admitted by the prosecution.
For voluntary surrender to mitigate criminal liability, the following elements must concur: 1) the offender
has not been actually arrested; 2) the offender surrendered himself to a person in authority; and 3) the
surrender was voluntary.[61] It is sufficient that that act be spontaneous and clearly indicative of the intent of
the accused to surrender unconditionally, because there is either an acknowledgement of guilt or a desire to
save the authorities the trouble and the expense that would necessarily be incurred in searching for and
capturing the culprit.[62]
It was established that on the night after the shooting incident, appellant called up his immediate
supervisor, Atty. Virgilio Pablico, to tell him about the incident that had occurred that afternoon and to convey
the formers intention to surrender.[63] The following day, appellant surrendered himself and his firearm to
Police Supt. Edgardo Acua, the chief of the Assistant Directorate for Intelligence. [64] This surrender is
evidenced by a Progress Report[65] signed by Police Chief Superintendent Efren Quimpo Fernandez.
At the time of his surrender, appellant had not actually been arrested. He surrendered himself and his
firearm to a person in authority, the chief of the Assistant Directorate for Intelligence of the Philippine
National Police. Finally, the surrender was voluntary and spontaneous; it thus showed an intent to surrender
unconditionally to the authorities. In fact, in the aforementioned Progress Report, appellant had given the
same narration of events he later gave in court; moreover, he owned responsibility for the shooting. Thus, we
credit him with the mitigating circumstance of voluntary surrender.

Final Issue:
Crimes and Penalties
Appellant was convicted of homicide, murder, and frustrated murder for the shooting of Suico, Lapidante
and Lacaden, respectively. In determining the crimes committed and in imposing the proper penalties, it is
necessary to look into the qualifying circumstances alleged in the three Informations. Treachery and evident
premeditation were both alleged; thus, there is a need to ascertain their presence or absence in the
commission of the acts, in order to determine the crimes committed by appellant.
To establish treachery, the following must be proven: 1) the employment of such means of execution as
would give the person attacked no opportunity for self-defense or retaliation; and 2) the deliberate and
conscious adoption of the means of execution.[66] It is also the running case law that where treachery is
alleged, the manner of attack must be proven.[67] Such attack must be sudden and unexpected and without
the slightest provocation on the part of the victim, who is thus deprived of any real chance for self-defense,
thereby ensuring the commission of the crime without risk to the aggressor.[68]
With respect to the shooting of Suico, there was no treachery. The shooting was perpetrated in a frontal
encounter as shown by the location of his wounds. Appellant did not make any deliberate, surprise attack
against him or consciously adopt a treacherous mode thereof. As established, he shot the victim after the
latter had aimed, cocked and fired a gun at him.
As to the shooting of Lapidante, the RTC qualified the crime to murder because of the presence of
treachery. According to the trial court, the shooting was unexpected, he was unarmed, and his back was
turned towards appellant when the incident occurred. Treachery was also appreciated in the shooting and
wounding of Lacaden, since he had been shot at the back. Further, even if he had posed no imminent danger
to appellant, the former was nevertheless shot with a .9 mm automatic pistol -- a lethal weapon. For this act,
the latter was convicted of frustrated murder.
The mere fact that the attack against Lapidante and Lacaden was perpetrated when their backs were
turned did not by itself constitute treachery or alevosia.[69] Whether the mode of attack was consciously
adopted, and whether there was risk to the offender, must be taken into account. [70] Treachery cannot be
considered when there is no evidence that the accused had resolved to commit the crime prior to the moment
of the killing; or that the death of the victim was the result of premeditation, calculation or reflection.[71]
In this case, it is evident that the decision to shoot Lapidante and Lacaden was suddenly arrived at after
the confrontation with Suico had already occurred. Even if the positions of the victims were vulnerable, there
was still no treachery, as appellant did not deliberately adopt such mode of attack. Its presence was negated
by the fact that the shootings had sprung from the unexpected turn of events. The treacherous character of
the means employed does not depend upon its result, but upon the means itself -- upon appellants purpose
in employing it.[72]
Treachery cannot be appreciated where, as in this case, there is nothing in the records that shows that
appellant pondered upon the mode or method of attack to ensure the wounding and the killing of the victims;
or to remove or diminish any risk to himself that might arise from the defense that they might make. [73] His
decision to shoot them was clearly sudden. In the absence of treachery, the killing of Lapidante and the
wounding of Lacaden cannot be qualified to murder and frustrated murder, respectively.
The allegation of evident premeditation was correctly rejected by the lower court. For this aggravating
circumstance to be appreciated, the following must be proven: 1) the time when the accused decided to
commit the crime; 2) an overt act manifestly indicating that the accused clung to such determination; and, 3)
between the decision and the execution, a sufficient lapse of time that allowed time to reflect upon the
consequences of the act contemplated.[74] None of these elements has been established in the case at bar.

Undeniably, the shooting of the victims was done without any prior plan to kill or attack them. As
previously stated, appellant began shooting at them after a cocked gun had been aimed and fired at him. This
fact negates any finding that he had already previously conceived the shooting, and that he then manifestly
clung to his determination to commit the crime after a sufficient lapse of time.
Having rejected both treachery and evident premeditation in the killing of Suico and Lapidante, we hold
appellant guilty only of homicide in both cases. But for the shooting of Lacaden, a careful review must be
made of the crime that was actually committed. The RTC charged him with frustrated murder and found him
guilty thereof; but, as ruled above, no qualifying circumstance was proven. Thus, his crime can only be
frustrated homicide, in which evidence of intent to kill is essential, however. [75] It bears stressing that such
intent determines whether the infliction of injuries should be punished as attempted or frustrated murder,
homicide or parricide; or as consummated physical injuries.[76]
Homicidal intent must be evidenced by acts that, at the time of their execution, are unmistakably
calculated to produce the death of the victim by adequate means.[77]
The principal and essential element of attempted or frustrated homicide or murder is the assailants
intent to take the life of the person attacked.[78] Such intent must be proved clearly and convincingly, so as to
exclude reasonable doubt thereof.[79]
Although the injury sustained by Lacaden was inflicted by appellant, the facts do not support a finding
that the latter had been impelled by an intent to injure to the point of killing the former. The intent to kill is
absent in this case. It was found that the shooting was sudden and unexpected, having been brought about by
a confrontation between appellant and Suico and the commotion that ensued. The absence of such intent
was, in fact, even more apparent in the testimony of appellant, who said therein that he did not even look at
the victim anymore. The formers attention was concentrated on the latter, who was shouting, Ang mahaba,
ang mahaba![80]
The intent to kill, an essential element of the offense of frustrated or attempted homicide, must be
proved by clear and convincing evidence and with the same degree of certainty as that required of the other
elements of the crime.[81] The inference that such intent existed should not be drawn in the absence of
circumstances sufficient to prove it beyond reasonable doubt. If it was absent but wounds were inflicted, the
crime is not frustrated murder, but only physical injuries.[82] In this case, the expert opinion of the doctor who
treated Lacaden was that it would take the latter thirty days to heal and recover from the lone gunshot wound
and to resume his normal work.[83] Thus, a finding of less serious physical injuries[84] is proper.
Although the charge in the instant case is frustrated murder, a finding of guilt for the lesser offense of less
serious physical injuries may be made, considering that the essential ingredients of this lesser offense are
necessarily included in or form part of those constituting the graver one. [85] In the same manner, a conviction
may be for slight or serious physical injuries in a prosecution for homicide or murder, inasmuch as the
infliction of the former, when carried out to the utmost degree, could lead to the latter offense. Such
conviction may be made, without intent to kill -- an essential element of the crime of homicide or murder.[86]
To summarize, in Criminal Case No. 1082-M-98, appellant is found guilty of homicide, for which the
penalty prescribed is reclusion temporal.[87] Since he proved a majority of the elements of self-defense -unlawful aggression and lack of sufficient provocation -- the penalty prescribed by law may be lowered by two
degrees[88] to prision correccional. Considering further the presence of the generic mitigating circumstance of
voluntary surrender without any aggravating circumstance, the penalty shall be imposed in its minimum
period.[89] The Indeterminate Sentence Law is applicable in this case. Hence appellant should be sentenced to
an indeterminate sentence, the maximum term of which shall be that which may properly be imposed under
the Revised Penal Code; and the minimum of which shall be within the range of the penalty next lower than
that prescribed by the Code -- in this case, arresto mayor.

In Criminal Case No. 1083-M-98, appellant is found guilty of homicide, for which the penalty prescribed by
law is reclusion temporal.[90] Again, considering the presence of the generic mitigating circumstance of
voluntary surrender without any aggravating circumstance, the penalty shall be imposed in its minimum
period.[91] The Indeterminate Sentence Law is also applicable to this case. Hence, appellant should be
sentenced to an indeterminate sentence, the maximum term of which shall be that which may properly be
imposed under the Revised Penal Code; and the minimum of which shall be within the range of the penalty
next lower than that prescribed by the Code -- in this case, prision mayor.
Finally, as to Criminal Case No. 1099-M-98, appellant is found guilty of less serious physical injuries, for
which the penalty prescribed by law is arresto mayor. Again, considering the presence of the generic
mitigating circumstance of voluntary surrender without any aggravating circumstance, the penalty shall be
imposed in its minimum period
Coming now to pecuniary liabilities, the heirs of the victims Suico and Lapidante in Criminal Case Nos.
1082-M-98 and 1083-M-98, respectively, are entitled to a fixed sum representing civil indemnity for
death. Death indemnity is currently fixed at P50,000.[92] This kind of civil indemnity is separate and distinct
from other forms of indemnity for damages and is automatically awarded without need of further proof other
than the fact of death and the responsibility of the accused therefor.
Proof of moral damages was presented through the testimony of Lapidantes wife. The RTCs award of
such damages herein is excessive, however, considering that it is not meant to enrich an injured
party. [93] Hence, in Criminal Case No. 1083-M-98, the amount thereof should be reduced to P50,000. In the
other two cases, there being no proof of moral damages, the award therefor is deleted. Moral damages
cannot be granted in the absence of proof.[94]
It is also proper to award compensation to the heirs of the victims for loss of earning capacity, pursuant to
Article 2206 of the Civil Code.[95] The documents presented, coupled with the testimonies of Elsie Suico and
Rosita Lapidante, are sufficient bases for the award.
At the time of his death, Suico, forty-four (44) years old,[96] was receiving a monthly take-home pay
of P942.70,[97] as proven and admitted. To compute his net earnings, we multiply this amount by 12 to get his
annual income; then deduct the reasonable and necessary living expenses which, in the absence of contrary
evidence, is pegged at 50 percent of the earnings. Applying the formula Net earning capacity = *2/3 x (80
age at time of death) x (gross annual income reasonable and necessary living expenses)],[98] we arrive at a
loss of earning capacity of P135,748.80.
Applying the same formula to Lapidante who was thirty-five (35) years old[99] at the time of his death, with
a monthly take-home pay of P10,004.24[100] and an additional income ofP1,000.00 for slaughtering pigs,[101] we
arrive at a loss of earning capacity of P1,980,763.20. His heirs are also entitled to actual damages in the
amount of P13,850 for hospital and funeral expenses. These expenses are supported by receipts.[102] The
receipt[103] for the amount of P6,000 -- which also mentions a remaining payable balance of P6,500 -- was not
properly identified and characterized; thus, we should exclude it from the award of actual damages.
Finally, with respect to the civil indemnities for Lacaden, the award for actual damages -- for
hospitalization and medicines -- should be P4,589.86, as only this amount was properly covered by
receipts.[104] The amount of P1,831, allegedly for hospital services, was included in a list presented by the
victim, but was not properly supported by any receipt or record; thus, we cannot grant such amount.
WHEREFORE, the appeal is partly GRANTED and the assailed Decision MODIFIED. In Criminal Case No.
1082-M-98, Appellant Carmelo Catbagan is found guilty beyond reasonable doubt of homicide and
is SENTENCED to a prison term of one (1) month and one (1) day arresto mayor as minimum; to one (1) year
and six (6) months of prision correccional as maximum. In Criminal Case No. 1083-M-98, he is found guilty
beyond reasonable doubt of homicide and SENTENCED to a prison term of six (6) years and one (1) day

of prision mayor as minimum; to twelve (12) years and one (1) day of reclusion temporal as maximum. In
Criminal Case No. 1099-M-98, he is found guilty of less serious physical injuries and SENTENCED to a prison
term of one (1) month and one (1) day of arresto mayor.
Appellant is also ORDERED to pay the following amounts: 1) to the legal heirs of Suico, P50,000 as
indemnity ex delicto and P135,748.80 for loss of earning capacity; 2) to the legal heirs of Lapidante, P13,850
for actual damages, P50,000 as indemnity ex delicto, P50,000 as moral damages, and P1,980,763.20 for loss of
earning capacity; and 3) to Lacaden, P4,589.86 for actual damages. Costs against appellant.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio, and Azcuna, JJ., concur.

[1]

Rollo, pp. 36-48; records, pp. 225-237. Penned by Judge Cesar M. Solis.

[2]

Assailed RTC Decision, pp. 12-13; rollo, pp. 47-48; records, pp. 236-237.

[3]

Signed by 3rd Asst. Provincial Prosecutor Lucita E. Marcelo; rollo, pp. 4-7; records, pp. 22-23 & 32-33.

[4]

The victim was Celso Suico y Veloria.

[5]

The victim was Danilo Lapidante y Pamunag.

[6]

Informations dated July 21, 1998; rollo, pp. 4 & 6; records, pp. 22 & 32.

[7]

Signed by 3rd Asst. Provincial Prosecutor Lucita E. Marcelo; id., pp. 8-9; id., pp. 1-2.

[8]

Information dated July 21, 1998; id., p. 8; id., p. 1.

[9]

Atty. Alfredo de la Cruz of the Public Attorneys Office (PAO).

[10]

Order dated August 26, 1998; records, p. 40.

[11]

Atty. Arsenio Bumacod of the PAO.

[12]

Order dated August 27, 1998; records, p. 9. See also Certificate of Arraignment; records, p. 10.

[13]

Atty. Joselito B. Flores.

[14]

Records, p. 249.

[15]

See Order dated September 10, 1999; id., p. 255.

[16]

Signed by Assistant Solicitors General Carlos N. Ortega and Magdangal M. de Leon and Solicitor Bernard G.
Hernandez.

[17]

Appellees Brief, pp. 9-19. Citations omitted.

[18]

Signed by Attys. Amelia C. Garchitorena, Marvin R. Osias and Nestor P. de Los Reyes of the PAO.

[19]

Appellants Brief, pp. 11-17; rollo, pp. 90-96. Citations omitted.

[20]

Assailed RTC Decision, p. 9; rollo, p. 44; records, p. 233.

[21]

Ibid.

[22]

Ibid.

[23]

Id., pp. 10, 45 & 234.

[24]

This case was deemed submitted for decision upon the Courts receipt of appellants Reply Brief on
September 19, 2002. Earlier, appellants Brief was received by the Court on April 11, 2002, and
appellees Brief on August 22, 2002.

[25]

Appellants Brief, p. 1; rollo, p. 80.

[26]

Angcaco v. People, 378 SCRA 297, February 28, 2002; Balanay v. Sandiganbayan, 344 SCRA 1, October 20,
2000.

[27]

Appellants Brief, p. 27; rollo, p. 106.

[28]

People v. Peralta, 350 SCRA 198, January 24, 2001; People v. Ulep, 340 SCRA 688, September 20,
2000; People v. Belbes, 389 Phil. 500, June 21, 2000.

[29]

Assailed RTC Decision, p. 7; rollo, p. 42; records, p. 231.

[30]

Ibid.

[31]

Appellants Brief, p. 27; rollo, p. 106.

[32]

100 SCRA 424, October 28, 1980.

[33]

People v. Ulep, supra, p. 700.

[34]

Appellants Brief, p. 28; rollo, p. 107.

[35]

People v. Caguing, 347 SCRA 374, December 6, 2000; People v. Calabroso, 340 SCRA 332, September 14,
2000; People v. Belbes, supra.

[36]

People v. Bonifacio, 376 SCRA 134, February 5, 2002; People v. Domingo, 414 Phil. 628, August 8,
2001; People v. Camacho, 411 Phil. 715, June 20, 2001.

[37]

Angcaco v. People, supra.

[38]

Assailed RTC Decision, p. 8; rollo, p. 43; records, p. 232.

[39]

TSN, November 4, 1998, p. 9.

[40]

Id., March 24 & April 14, 1999, pp. 26-28 & 35.

[41]

Id., March 1 & 8, 1999, pp. 12 & 24-25.

[42]

Id., January 20 & 27, 1999, pp. 6-13 & 9.

[43]

Id., November 6, 1998, p. 6.

[44]

Id., November 18, 1998, pp. 8-9.

[45]

Assailed RTC Decision, p. 8; rollo, p. 43; records, p. 232.

[46]

People v. Basadre, supra.

[47]

Reyes, The Revised Penal Code; Book I, (2001 ed.), p.171.

[48]

Appellants Brief, p. 36; rollo, p. 114.

[49]

People v. Obordo, 382 SCRA 98, May 9, 2002.

[50]

Reyes, The Revised Penal Code; supra, p. 178.

[51]

Assailed RTC Decision, p. 9; rollo, p. 44; records, p. 233.

[52]

Art. 13. Mitigating circumstances. The following are mitigating circumstances:

1.

Those mentioned in the preceding chapter, when all the requisites necessary to justify the act or
to exempt from criminal liability in the respective cases are not attendant.
x x x

xxx

x x x

[53]

People v. Tac-an, 182 SCRA 601, February 26, 1990; People v. Lachica, 132 SCRA 230, September 28,
1984; People v. Adlawan, 375 SCRA 188, January 30, 2002; People v. Geneblazo, 414 Phil. 103, July 20,
2001; Calim v. CA, 351 SCRA 559, February 13, 2001.

[54]

US v. Carrero, 9 Phil. 544, January 10, 1908.

[55]

Id., p. 547, per Torres, J.

[56]

Assailed RTC Decision, p. 9; rollo, p. 44; records, p. 233.

[57]

Reyes, The Revised Penal Code; supra, p. 161.

[58]

People v. Campomanes, 376 SCRA 307, February 6, 2002; People v. Saul, 372 SCRA 636, December 19,
2001; People v. Peralta, supra; People v. Sambulan, 352 Phil. 336, April 24, 1998.

[59]

Scapillar in the TSN, January 25, 1999, p. 3.

[60]

Assailed RTC Decision, p. 10; rollo, p. 45; records, p. 234.

[61]

Reyes, The Revised Penal Code; supra, p. 290.

[62]

People v. Tambis, 370 Phil. 459, July 28, 1999; People v. Sambulan, supra.

[63]

TSN, March 26, 1999, p. 6.

[64]

Id., p. 7.

[65]

Records, p. 184.

[66]

People v. Casingal, 337 SCRA 100, August 1, 2000; People v. Aquino, 379 Phil. 845, January 20, 2000.

[67]

People v. Parba, 416 Phil. 902, September 5, 2001; People v. Samudio, 353 SCRA 746, March 7, 2001.

[68]

People v. Tejero, 381 SCRA 382, April 19, 2002; People v. Castillano, 377 SCRA 79, February 15, 2002; People
v. Medios, 371 SCRA 120, November 29, 2001.

[69]

Reyes, The Revised Penal Code; supra, p. 435.

[70]

People v. Calago, 381 SCRA 448, April 22, 2002; People v. Guzman, 372 SCRA 344, December 14, 2001.

[71]

People v. Recto, 419 Phil. 674, October 17, 2001.

[72]

Reyes, The Revised Penal Code; supra, p. 411.

[73]

People v. Mazo, 419 Phil. 750, October 17, 2001; People v. Santillana, 367 Phil. 373, June 9, 1999.

[74]

People v. Calago, 381 SCRA 448, April 22, 2002.

[75]

People v. Fortich, 346 Phil. 596, November 13, 1997.

[76]

People v. Listerio, 335 SCRA 40, July 5, 2000.

[77]

Ibid.

[78]

People v. Pagador, 357 SCRA 299, April 20, 2001.

[79]

Ibid.

[80]

Id., p. 4.

[81]

People v. Fortich, supra.

[82]

People v. Pagador, supra.

[83]

TSN, January 25, 1999, p. 4.

[84]

Revised Penal Code, Art. 265.

[85]

5, R120, Revised Rules of Criminal Procedure; People v. Vicente, 372 SCRA 765, December 21, 2001.

[86]

Ibid.

[87]

Revised Penal Code, Art. 249.

[88]

Id., p. 741; see also Revised Penal Code, Art. 69.

[89]

Revised Penal Code, Art. 64(2).

[90]

Id., Art. 249.

[91]

Id., Art. 64(2).

[92]

People v. Callet, 382 SCRA 43, May 9, 2002; People v. Dumalahay, 380 SCRA 37, April 2, 2002; People v.
Kinok, 368 SCRA 510, November 13, 2001.

[93]

People v. Manlansing, 378 SCRA 685, March 11, 2002.

[94]

People v. Escarlos, GR No. 148912, September 10, 2003; People v. Villanueva, GR No. 139177, August 11,
2003.

[95]

Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three
thousand pesos, even though there may have been mitigating circumstances. In addition:

(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall
be paid to the heirs of the latter; such indemnity in every case shall be assessed and awarded by the
court, unless the deceased on account of permanent physical disability not caused by the defendant,
had no earning capacity at the time of his death;
xxx

xxx

xxx

[96]

TSN, November 9, 1998, p. 6.

[97]

Id., p. 7; see also Exhibit I; CA rollo, p. 53.

[98]

People v. Yatco, 379 SCRA 432, March 19, 2002; People v. Bantiling, 420 Phil. 849, November 15,
2001; People v. Cabilto, 414 Phil. 615, August 8, 2001; People v. Templo, 346 SCRA 626, December 1,
2000;People v. Reanzares, 334 SCRA 624, June 29, 2000.

[99]

Id., November 6, 1998, p. 19.

[100]

Exhibit D, CA rollo.

[101]

TSN, November 6, 1998, p. 19.

[102]

Exhibits E and E-2; CA rollo, p. 48.

[103]

Exhibit E-1; CA rollo, p. 48.

[104]

Exhibits P-2 to P-18; CA rollo, p. 65.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-4445

February 28, 1955

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MANUEL BERONILLA, FILIPINO VELASCO, POLICARPIO PACULDO, and JACINTO ADRIATICO, defendantsappellants.
Agripino A. Brillantes, Valera, Eufemio and Bernardez for appellants.
Prospero C. Sanidad and Claro M. Recto for defendant.
Office of the Solicitor General Juan R. Liwag and Solicitor Jaime R. de los Angeles and Martiniano P. Vivo for
appellee.
REYES, J.B.L., J.:
This is an appeal by accused Manuel Beronilla, Policarpio Paculdo, Filipino Velasco, and Jacinto Adriatico from
the judgment of the Court of First Instance of Abra (Criminal Case No. 70) convicting them of murder for the
execution of Arsenio Borjal in the evening of April 18, 1945, in the town of La Paz , Province of Abra.
Arsenio Borjal was the elected mayor of La Paz, Abra, at the outbreak of war, and continued to serve as Mayor
during the Japanese occupation, until March 10, 1943, when he moved to Bangued because of an attempt
upon his life by unknown persons. On December 18, 1944, appellant Manuel Beronilla was appointed Military
Mayor of La Paz by Lt. Col. R. H. Arnold, regimental commander of the 15th Infantry, Philippine Army,
operating as a guerrilla unit in the province of Abra. Simultaneously with his appointment as Military Mayor,
Beronilla received copy of a memorandum issued by Lt. Col. Arnold to all Military Mayors in Northern Luzon,
authorizing them "to appoint a jury of 12 bolomen to try persons accused of treason, espionage, or the aiding
and abetting (of ) the enemy" (Exhibit 9). He also received from the Headquarters of the 15th Infantry a list of
all puppet government officials of the province of Abra (which included Arsenio Borjal, puppet mayor of La
Paz), with a memorandum instructing all Military Mayors to investigate said persons and gather against them
complaints from people of the municipality for collaboration with the enemy (Exhibit 12-a).
Sometime in March, 1945, while the operations for the liberation of the province of Abra were in progress,
Arsenio Borjal returned to La Paz with his family in order to escape the bombing of Bangued. Beronilla,
pursuant to his instructions, placed Borjal under custody and asked the residents of La Paz to file complaints
against him. In no time, charges of espionage, aiding the enemy, and abuse of authority were filed against
Borjal; a 12-man jury was appointed by Beronilla, composed of Jesus Labuguen as chairman, and Benjamin
Adriatico, Andres Afos, Juanito Casal, Santiago Casal, Benjamin Abella, Servillano Afos, Mariano Ajel, Felimon
Labuguen, Felix Murphy, Pedro Turqueza, and Delfin Labuguen as members; while Felix Alverne and Juan
Balmaceda were named prosecutors, Policarpio Paculdo as clerk of the jury, and Lino Inovermo as counsel for
the accused. Later, Atty. Jovito Barreras voluntarily appeared and served as counsel for Borjal. Sgt. Esteban
Cabanos observed the proceedings for several days upon instructions of Headquarters, 15th Infantry. The trial
lasted 19 days up to April 10, 1945; the jury found Borjal guilty on all accounts and imposed upon him

instruction from his superiors. Mayor Beronilla forwarded the records of the case to the Headquarters of the
15th Infantry for review. Said records were returned by Lt. Col. Arnold to Beronilla on April 18, 1945 with the
following instructions:
HEADQUARTERS 3RD MILITARY DISTRICT
15TH INFANTRY, USAFIP
In the Field
16 April 1945
Msg. No. 337
Subject: Arsenio Borjal, Charges Against
To: Military Mayor of La Paz, Abra.
1. Returned herewith are the papers on the case of Arsenio Borjal.
2. This is a matter best handled by your government and whatever disposition you make of the case is
hereby approved.
(Sgd.) R. H. ARNOLD
Lieut.-Colonel, 15th Inf., PA
Commanding
Received April 18, 1945, 10:35 a.m.
(Sgd.) MANUEL BERONILLA
Military Mayor, La Paz, Abra
(Exhibit 8, 8-a)
and on the night of the same day, April 18, 1945, Beronilla ordered the execution of Borjal. Jacinto Adriatico
acted as executioner and Antonio Palope as grave digger. Father Luding of the Roman Catholic Church was
asked to administer the last confession to the prisoner, while Father Filipino Velasco of the Aglipayan Church
performed the last rites over Borjal's remains. Immediately after the execution, Beronilla reported the matter
to Col. Arnold who in reply to Beronilla's report, sent him the following message:
HEADQUARTERS 3RD MILITARY DISTRICT
15TH INFANTRY, USAFIP
In the Field
22 April 1945
Msg. No. 398
Subject: Report and information Re Borjal case
To: Military Mayor Beronilla
1. Received your letter dated 18 April 1945, subject, above.
2. My request that you withhold action in this case was only dictated because of a query from Higher
Headquarters regarding same. Actually, I believe there was no doubt as to the treasonable acts of the

accused Arsenio Borjal and I know that your trial was absolutely impartial and fair. Consequently, I Can
only compliment you for your impartial independent way of handling the whole case.
(Sgd.) R. H. ARNOLD
Lieut.-Colonel, 15th Inf., PA
Commanding
Received April 26, 1947 7:00 a.m.
(Sgd.) MANUEL BERONILLA
Military Mayor, La Paz, Abra
(Exhibit 21, 21-a)
Two years thereafter, Manuel Beronilla as military mayor, Policarpio Paculdo as Clerk of the jury, Felix Alverne
and Juan Balmaceda as prosecutors, Jesus Labuguen, Delfin Labuguen, Filemon Labuguen, Servillano Afos,
Andres Afos, Benjamin Adriatico, Juanito Casel, Santiago Casel, Mariano Ajel, Felix Murphy, Benjamin Abella,
and Pedro Turqueza as members of the jury, Jacinto Adriatico as executioner, Severo Afos as grave digger, and
Father Filipino Velasco as an alleged conspirator, were indicted in the Court of First Instance of Abra for
murder, for allegedly conspiring and confederating in the execution of Arsenio Borjal. Soon thereafter, the late
President Manuel A. Roxas issued Executive Proclamation No. 8, granting amnesty to all persons who
committed acts penalized under the Revised Penal Code in furtherance of the resistance to the enemy against
persons aiding in the war efforts of the enemy. Defendant Jesus Labuguen, then a master sergeant in the
Philippine Army, applied for and was granted amnesty by the Amnesty Commission, Armed Forces of the
Philippines (Records, pp. 618-20). The rest of the defendant filed their application for amnesty with the
Second Guerrilla Amnesty Commission, who denied their application on the ground that the crime had been
inspired by purely personal motives, and remanded the case to the Court of First Instance of Abra for trial on
the merits.
Upon motion of defense counsel, the case against defendant Jesus Labuguen, who had been granted amnesty
by the Amnesty Commission of the Armed Forces of the Philippines, was ordered provisionally dismissed:
defendant Juan Balmaceda was discharged from the information so that he might be utilized as state witness,
although actually he was not called to testify; while the case against defendants Antonio Palope (the grave
digger) and Demetrio Afos( a boloman) was dismissed for lack of sufficient evidence.
Trial proceeded against the rest of the defendants; and on July 10, 1950, the Court below rendered judgment,
acquitting the members of the jury and the grave digger Antonio Palope on the ground that they did not
participated in the killing of Arsenio Borjal; acquitting defendants Jesus Labuguen, Felix Alverne, Severo Afos,
and Lauro Parado upon insufficiency of evidence to establish their participation in the crime; but convicting
defendants Manuel Beronilla, Policarpio Paculdo, Filipino Velasco, and Jacinto Adriatico as conspirator and coprincipals of the crime of murder, and sentencing them to suffer imprisonment of from 17 years, 4 months
and 1 day ofreclusion temporal to reclusion perpetua, to indemnify the heirs of Arsenio Borjal jointly and
severally in the amount of P4,000 with subsidiary imprisonment in case of insolvency, and each to pay one
fourth of the costs. In convicting said defendants the Court a quo found that while the crime committed by
them fell within the provisions of the Amnesty Proclamation, they were not entitled to the benefits thereof
because the crime was committed after the expiration of the time limit fixed by the amnesty proclamation;:
i.e., that the deceased Arsenio Borjal was executed after the liberation of La Paz, Abra.

In view of the sentence meted by the Court below, the accused Beronilla, Paculdo, Velasco and Adriatico
appealed to this Court.
The records are ample to sustain the claim of the defense that the arrest, prosecution and trial of the late
Arsenio Borjal were done pursuant to express orders of the 15th Infantry Headquarters. (Exhibit 9 and 12-a),
instructing all military mayors under its jurisdiction to gather evidence against puppet officials and to appoint
juries of at least 12 bolomen to try the accused and find them guilty by two thirds vote. It is to be noted that
Arsenio Borjal was specifically named in the list of civilian officials to be prosecuted (Exhibit 12-b).
In truth, the prosecution does not seriously dispute that the trial and sentencing of Borjal was done in
accordance with instructions of superior military authorities, altho it point to irregularities that were due more
to ignorance of legal processes than personal animosity against Borjal. The state, however, predicates its case
principally on the existence of the radiogram Exhibit H from Col. Volckmann, overall area commander, to Lt.
Col. Arnold, specifically calling attention to the illegality of Borjal's conviction and sentence, and which the
prosecution claims was known to the accused Beronilla. Said message is as follows:
"Message:
VOLCKMANN TO ARNOLD CLN UNDERSTAND THAT MUNICIPALITIES OF ABRA HAVE ORGANIZED JURY
SYSTEM PD BELIEVE THAT THIS BODY IS ILLEGAL AND CANNOT TRY PUNISHMENTS THEREOF PD
SPECIFIC INSTANCE IS BROUGHT TO YOUR ATTENTION FRO PROPER AND IMMEDIATE ACTION ON ONE
ARSENIO BORJAL OF LA PAZ WHO HAS BEEN TRIED CMA CONVICTED AND SENTENCED TO BE HANGED
PD REPORT ACTION TAKEN BY YOU ON THIS MATTER PD MSG BEGINS CLN"
(EXH. H)
The crucial question thus becomes whether or not this message, originally sent to Arnold's quarters in San
Esteban, Ilocos Sur, was relayed by the latter to appellant Beronilla in La Paz, Abra, on the morning of April 18,
1945, together with the package of records of Borjal's trial that was admittedly returned to and received by
Beronilla on that date, after review thereof by Arnold (Exhibit 8-8-a). Obviously, if the Volckmann message
was known to Beronilla, his ordering the execution of Borjal on the night of April 18, 1945 can not be justified.
We have carefully examined the evidence on this important issue, and find no satisfactory proof that Beronilla
did actually receive the radiogram Exhibit H or any copy thereof. The accused roundly denied it. The
messenger, or "runner", Pedro Molina could not state what papers were enclosed in the package he delivered
to Beronilla on that morning in question, nor could Francisco Bayquen (or Bayken), who claimed to have been
present at the delivery of the message, state the contents thereof.
The only witness who asserted that Beronilla received and read the Volckmann message, Exhibit H, was Rafael
Balmaceda, a relative of Borjal, who claimed to have been, as Beronilla's bodyguard, present at the receipt of
the message and to have read it over Beronilla's shoulder. This testimony, however, can not be accorded
credence, for the reason that in the affidavit executed by this witness before Fiscal Antonio of Abra (Exhibit 4),
Balmaceda failed to make any mention of the reading, or even the receipt, of the message. In the affidavit, he
stated:
Q. In your capacity as policeman, do you know of any usual occurrence that transpired in La Paz, Abra?
A. Yes, sir.

Q. Will you state what is the event? A. On April 17, 1945, I was assigned as guard at the Presidencia
where Mayor Arsenio Borjal is confined. On the 18th of April, 1945, six bolomen came to me while I
was on duty as guard, that Mayor Borjal should be tied, on orders of Mayor Beronilla, Mayor Borjal
wanted to know the reason why he would be tied, as he had not yet learned of the decision of the jury
against him. Mayor Borjal wrote a note to Mayor Beronilla, asking the reason for his being ordered to
be tied. I personally delivered the note of Borjal to Mayor Beronilla. Mayor Beronilla did not answer
the note, but instead told me that I should tie Mayor Borjal, as tomorrow he would die, as he cannot
escape. I returned to the Presidencia, and Mayor Borjal was tied, as that was the ordered of Mayor
Beronilla.
The plain import of the affidavit is that the witness Rafael Balmaceda was not with Beronilla when the
message arrived, otherwise Beronilla would have given him his orders direct, as he (Balmaceda) testified later
at the trial. Moreover, it is difficult to believe that having learned of the contents of the Volckmann message,
Balmaceda should not have relayed it to Borjal , or to some member of the latter's family, considering that
they were relatives. In addition to Balmaceda was contradicted by Bayken, another prosecution witness, as to
the hatching of the alleged conspiracy to kill Borjal. Balmaceda claimed that the accused-appellants decided to
kill Borjal in the early evening of April 18, while Bayken testified that the agreement was made about ten
o'clock in the morning, shortly after the accused had denied Borjal's petition to be allowed to hear mass.
Upon the other hand, Beronilla's conduct belies his receipt of the Volckmann message. Had he executed Borjal
in violation of superior orders, he would not have dared to report it to Arnold's headquarters on the very same
day, April 18th, 1945, as he did (Exhibit 20), half an hour after the execution. And what is even more
important, if Borjal was executed contrary to instructions, how could Lt. Colonel Arnold on April 21, 1945,
write in reply (Exhibit 21, 21-a) "I can only compliment you for your impartial but independent way of handling
the whole case" instead of berating Beronilla and ordering his court martial for disobedience?
Our conclusion is that Lt. Col. Arnold, for some reason that can not now be ascertained, failed to transmit the
Volckmann message to Beronilla. And this being so, the charge of criminal conspiracy to do away with Borjal
must be rejected, because the accused had no need to conspire against a man who was, to their knowledge,
duly sentenced to death.
The state claims that the appellants held grudges against the late Borjal. Even so, it has been already decided
that the concurrence of personal hatred and collaboration with the enemy as motives for a liquidation does
not operate to exclude the case from the benefits of the Amnesty claimed by appellants, since then "it may
not be held that the manslaughter stemmed from purely personal motives" (People vs. Barrioquinto,* G. R.
Nos. L-2011 and 2267, June 30, 1951). Actually, the conduct of the appellants does not dispose that these
appellants were impelled by malice (dolo). The arrest and trial of Borjal were made upon express orders of the
higher command; the appellants allowed Borjal to be defended by counsel, one of them (attorney Jovito
Barreras) chosen by Borjal's sister; the trial lasted nineteen (19) days; it was suspended when doubts arose
about its legality, and it was not resumed until headquarters (then in Langangilang, Abra) authorized its
resumption and sent an observer (Esteban Cabanos, of the S-5) to the proceedings, and whose suggestions on
procedure were followed; and when the verdict of guilty was rendered and death sentence imposed, the
records were sent to Arnold's headquarters for review, and Borjal was not punished until the records were
returned eight days later with the statement of Arnold that "whatever disposition you make of the case is
hereby approved" (Exhibit 8), which on its face was an assent to the verdict and the sentence. The lower
Court, after finding that the late Arsenio Borjal had really committed treasonable acts, (causing soldiers and
civilians to be tortured, and hidden American officers to be captured by the Japanese) expressly declared that
"the Court is convinced that it was not for political or personal reason that the accused decided to kill Arsenio
Borjal" (Decision, p. 9; Record, p. 727).

It appearing that the charge is the heinous crime of murder, and that the accused-appellants acted upon
orders, of a superior officers that they, as military subordinates, could not question, and obeyed in good faith,
without being aware of their illegality, without any fault or negligence on their part, we can not say that
criminal intent has been established (U. S. vs. Catolico, 18 Phil., 507; Peo. vs. Pacana, 47 Phil., 48; Sent. of the
Tribunal Supremo of Spain, 3 July 1886; 7 January 1901; 24 March 1900; 21 Feb. 1921; 25 March 1929). Actus
non facit reum nisi mens si rea.
To constitute a crime, the act must, except in certain crimes made such by statute, be accompanied by
a criminal intent, or by such negligence or indifference to duty or to consequence, as, in law, is
equivalent to criminal intent. The maxim is, actus non facit reum, nisi mens rea-a crime is not
committed if the minds of the person performing the act complained of be innocent. (U. S. vs. Catolico,
18 Phil., 507).
But even assuming that the accused-appellant did commit crime with they are charged, the Court below
should not have denied their claim to the benefits of the Guerrilla Amnesty Proclamation No. 8 (42 Off. Gaz.,
2072)on the ground that the slaying of Arsenio Borjal took place after actual liberation of the area from enemy
control and occupation. The evidence on record regarding the date of liberation of La Paz, Abra, is
contradictory. The Military Amnesty Commission that decided the case of one of the original accused Jesus
Labuguen, held that La Paz, Abra, was liberated on July 1, 1945, according to its records; and this finding was
accepted by Judge Letargo when he dismissed the case against said accused on March 15, 1949. On the other
hand, Judge Bocar and Hilario, who subsequently took cognizance of the case, relied on Department Order No.
25, of the Department of the Interior, dated August 12, 1948, setting the liberation of the Province of Abra on
April 4, 1945, fifteen days before Borjal was slain. The two dates are not strictly contradictory; but given the
benefit of the Presidential directive to the Amnesty Commissions (Adm. Order No. 11, of October 2, 1946) that
"any reasonable doubt as to whether a given case falls within the (amnesty) proclamation shall be resolved in
favor of the accused" (42 Off. Gaz., 2360), as was done in People vs. Gajo, Phil., 107 46 Off. Gaz., (No. 12) p.
6093.
For the reasons stated, the judgment appealed from is reversed and the appellants are acquitted, with
costs de oficio.
Paras, C. J., Pablo, Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo and Concepcion, JJ.,concur.

Footnotes
*

89 Phil., 414.

EN BANC

[G.R. Nos. 150542-87. February 3, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. OLIVER AREVALO JR. y ABANILLA, and HERMINIGILDO
ORGANISTA y ANDRES,appellants.
DECISION
PANGANIBAN, J.:
Appellant is accused of multiple rape by two or more persons, for which Article 266-B of the Revised
Penal Code prescribes the penalty of reclusion perpetua to death. Since the Information did not allege any
aggravating circumstance, the proper penalty to be imposed is reclusion perpetua, not death.

The Case
For automatic review before this Court is the October 26, 2001 Decision [1] of the Regional Trial Court (RTC)
of Makati City (Branch 62) in Criminal Case Nos. 01-419 to 01-464, finding Oliver Arevalo Jr. and Herminigildo
Organista guilty beyond reasonable doubt of 42 and 32 counts of rape, respectively. The decretal portion of
the Decision is worded as follows:
WHEREFORE, premises considered, the Court finds accused Oliver A. Arevalo in Criminal Cases Nos. 01-419 to
01-423, 01-425 to 01-428, 01-430 to 01-441, 01-442 to 01-446, 01-448 to 01-451, 01-453 to 01-464, and
accused Herminigildo A. Organista in Criminal Cases Nos. 01-419 to 01-422, 01-442 to 01-445, and 01-441 and
01-464 GUILTY beyond reasonable doubt of the crime of rape defined under Art. 266-A, par. 1(a) in relation to
Art. 266-B, par. 2 of the Revised Penal Code, as amended by Republic Act 8353, and imposes upon them the
maximum penalty of death in each case. Each of the two accused is hereby ordered to pay complainants
Regina G. Acu[]a and Ruth F. Acosta P75,000.00 each as civil indemnity.
Considering the outrage, humiliation, distress and trauma suffered by the two complainants from the
dastardly act of the two accused, the Court orders the accused Arevalo to pay Regina Acu[]a and Ruth
Acosta P200,000.00 each and accused Organista to pay the two complainants P50,000.00 each as moral
damages pursuant to Article 2219(3) in relation to Article 2217 of the Civil Code.
Accused Arevalo is further ordered to pay exemplary damages in the amount of P100,000.00 to each of the
two complainants to deter others with perverse tendencies or aberrant sexual behaviors from committing the
act.
For failure of the prosecution to establish the guilt beyond reasonable doubt of accused Oliver A. Arevalo in
Criminal Cases Nos. 01-424 and 01-447, and 01-429 and 01-452, and accused Herminigildo A. Organista in
Criminal Cases Nos. 01-423 to 01-440 and 01-446 to 01-463, they are hereby ACQUITTED in said cases.[2]
A total of forty-six (46) separate Informations[3] were filed against appellants. For the rape of Regina
Acua, they were charged as follows:

Criminal Case No. 01-419

That on or about the 23rd day of January, 2001, in the City of Makati, Metro Manila, Philippines, a place
within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating
together with John Does and mutually helping and aiding with one another, by means of force and
intimidation, did then and there willfully, unlawfully [and] feloniously have carnal knowledge of the
complainant REGINA ACU[]A y GUTIERREZ, without her consent and against her will.[4]
The Informations[5] in Criminal Case Nos. 01-420 to 01-441 contain allegations identical to the above
Information, differing only with respect to the dates of the commission of the alleged rapes.
For the rape of Ruth Acosta, appellants were charged as follows:

Criminal Case No. 01-442

That on or about the 23rd day of January, 2001, in the City of Makati, Metro Manila, Philippines, a place
within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating
together with John Does and mutually helping and aiding with one another, by means of force and
intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of the
complainant RUTH ACOSTA y FILLAS, without her consent and against her will.[6]
Again, the Informations[7] in Criminal Case Nos. 01-443 to 01-464 contain allegations identical to the
above Information, differing only with respect to the dates of the commission of the alleged rapes.
Upon their arraignment on March 19, 2001,[8] appellants, with the assistance of their counsel,[9] pleaded
not guilty to all charges. After trial in due course, the court a quo rendered the assailed Decision.

The Facts
Version of the Prosecution
In its Brief, the Office of the Solicitor General (OSG) presents the prosecutions version of the facts in the
following manner:
Regina G. Acu[]a was a jobless 22-year old married woman residing in Payatas, Quezon City. On January 23,
2001, between three oclock and four oclock in the afternoon, she was walking down Manggahan St. in
Fairview, Quezon City, looking for a job. As she went along, appellant Arevalo, a stranger, approached and
asked her what her problem was. She replied that she was looking for a job. Appellant Arevalo told Regina
that he could get her a job as saleslady. Regina said that if the place of work was far, she was not
interested. Appellant Arevalo told her not to worry, as the workplace was not far, and that nothing wrong
would happen to her. Regina did not believe him.
While they were talking, a car stopped in front of them. Suddenly, appellant Arevalo placed a white
handkerchief on Reginas face and boarded her on the vehicle. Regina could not remember what happened
next. She could not even recall whether she slept or lost consciousness. All she knew was that when she
woke up, she was already lying on a bed inside a room. It was nighttime.

In the room, Regina saw appellant Arevalo and a fat lady whom he identified as Rose, his atsay or
helper. Regina later learned that Roses real name was Ruth Acosta. Ruth looked like she was in a state of
shock, or, tulala.
Appellant Arevalo left momentarily. When he came back, he forcibly took off Reginas clothes. Regina asked
him what he was doing, and he replied that what he would do would only take a while. Appellant Arevalo then
undressed himself. When Regina saw this, she pleaded with him to take pity on her and to release her, as her
husband may have been worrying for her already. Appellant Arevalo repeated that it would not take
long. Regina shouted for help. But nobody heard her, as appellant Arevalo had closed the door and
windows. While she was shouting, appellant Arevalo raised her feet and forcibly inserted his penis into her
vagina.
As Regina lay on the bed, she kept on shouting and resisting appellant Arevalos sexual assault. At one point,
she was able to free herself from him and run. But he caught up with her, grabbed her hair, banged her head
against the wall and threw her back to the bed, where he continued to ravish her. Rose, or Ruth Acosta, was
looking on helplessly, crying while Regina was being violated.
From that night onward until February 14, 2001, Regina would be wearing nothing almost all the time, for she
would be ravished for what seemed like almost every day and every hour.
On January 24, 2001, an unidentified man raped Regina in the same room. Before raping her[,] however, the
man paid appellant Arevalo a sum of money. Regina could not see the mans face, as appellant Arevalo had
blindfolded her. But she heard the man tell appellant Arevalo, Pare, itong bayad.
The unidentified man made Regina take different sexual positions even as she resisted. At one time, he
inserted his penis into her anus; at another, he inserted his finger and later, his penis, into her vagina.
Thereafter, appellant Arevalo made her eat the mans penis. Regina struggled hard to free herself from the
mans clutches, but she was no match for him.
When the man had left, appellant Arevalo took off Reginas blindfold. Regina saw him counting the money
the man had paid him. Thereafter, appellant Arevalo ravished Regina himself. When he was finished,
appellant Arevalo again sold Regina to another unidentified man, who proceeded to have sex with her. By this
time, Regina was no longer shouting for help because no one could hear or help her anyway.
On January 25, 2001, appellant Arevalo again blindfolded Regina and let other men ravish her for a fee while
he stood guard outside the door of his house. The first man who had sex with Regina inserted his penis into
her vagina while he was on top of her, covering her mouth with his hand because she was noisy. Regina kept
shouting for help, but nobody heard her. So she just cried and cried and threw punches at the man, but he
would not stop ravishing her. To keep her from resisting, the man pointed a knife at her neck and threatened
to kill her. When the man was through, another man followed. By then, Regina was no longer putting up any
resistance because she was afraid and at the same time, already very weak. Around six (6) men raped her in
succession that day, but she could only recognize appellant Arevalo among them.
On January 26, 2001, appellant Arevalo forced the two (2) women to take drugs. Appellant Arevalo made
Regina sniff the smoke of a powdered substance or tawas wrapped in a foil. When she refused, he
threatened to slash her neck. He also made the girls take tablets which Regina later discovered to be birth
control pills.

Thereafter, appellant Arevalo inserted his penis into Reginas vagina. While he was raping her, he ran the
point of his knife up and down her body, from her breasts to her vagina. Regina was very afraid.
After appellant Arevalo had reached a climax, he blindfolded Ruth and made her have sex with many other
men.
On January 27, 2001, appellant Arevalo ravished Regina again in a similar manner as the previous days. By
then, Regina was very weak.
On many occasions during her first five (5) days in captivity, and even thereafter, Regina tried to escape, but
appellant Arevalo would always catch up with her and hurt her. He would tie up her hands and hang her while
having sex with her. Whenever he left the house, he would lock it from the outside to prevent Regina and
Ruth from leaving. Although appellant Arevalo would buy the girls food, Regina oftentimes refused to eat,
because she knew that the food was bought with the money appellant Arevalo earned from peddling their
bodies.
On January 28, 2001, appellant Arevalo brought Regina to another place. She did not know where the place
was because she was dizzy with the drugs he had made her use.
On January 29, 2001, appellant Arevalo drugged Regina again. Thereafter, he had sexual intercourse with
her. Regina begged him to let her go home because her husband was waiting for her, but her plea fell on deaf
ears. Many other men ravished Regina that day.
On January 30, 2001, appellant Arevalo forced Regina to make a choice between marijuana and
tawas. When Regina refused to choose, he threatened to slash her throat. Afraid, Regina finally chose
tawas. Appellant Arevalo told her to take it so that she would not feel the pain in her vagina, which was
already bleeding. Thereafter, appellant Arevalo raped her.
On January 31, 2001, appellant Arevalo had forcible sexual intercourse with Regina again. Thereafter, not
content with putting his fingers into her private part, appellant Arevalo inserted a lighted cigarette
inside. Although Regina was taking the drug appellant Arevalo forced her to use, she still felt the pain in her
vagina caused by the hot cigarette.
On February 1, 2001, after forcibly copulating with Regina yet another time, appellant Arevalo sold her again
to other men.
On the night of February 2, 2001, appellant Arevalo again moved Regina to another place which she could not
remember, because she was dizzy then. Although there were other passengers on the public utility jeepney
that they took on the way to the place, Regina could not ask for help, as appellant Arevalo was poking a knife
at her back inside her t-shirt the whole time and had earlier warned her that he would kill her if she
shouted. They arrived at a concrete house which had a vulcanizing shop at the ground floor. When they were
inside the building, appellant Arevalo blindfolded Regina and hanged her by the hands. Regina heard womens
voices, but she was not sure whether they were real or came from the television set in the room. That night,
Regina was again raped by unidentified persons. Appellant Arevalo and Regina left the place at half past
midnight.
From February 3 up to February 5, 2001, appellant Arevalo continued to subject *her+ to his bestial
designs. Each time, he succeeded in inserting his penis into her vagina and in consummating the

intercourse. Regina no longer put up any resistance because her body had been rendered very weak from her
days of endless ravishment.
On February 6, 2001, Regina fell ill with fever, and Ruth took care of her. Reginas illness did not stop
appellant Arevalo from molesting her that day. Before she was raped, Regina begged appellant Arevalo to
allow her to call her parents and even offered him any sum of money as he desired, but he slapped her, saying
that he needed her body and not her money. He also told Ruth to slap her, and so Ruth slapped her.
On February 7, 2001, Regina could only beg appellant Arevalo to take pity on her. She was chilling and she
tried to push him away, to no avail, for once again, appellant Arevalo successfully penetrated her private
organ.
On February 8, 2001, Regina discovered that she had a venereal disease, or tulo. But this did not spare her
from appellant Arevalos carnal greed. She stopped resisting him, for her body had long been worn down by
ceaseless abuse.
Reginas ordeal continued from February 9 up to February 14, 2001. Every single day, appellant Arevalo
would ravish her without letup.
On February 14, 2001, appellant Organista, a friend and neighbor of appellant Arevalo, also had a taste of
Reginas flesh. After appellant Arevalo stripped her naked, appellant Organista made his move. Regina pushed
him away as he approached her, but appellant Arevalo teased him, saying, kaya mo yan pre. Appellant
Organista proceeded to insert his penis into Reginas vagina while she lay down on the floor, with appellant
Arevalo looking on. After appellant Organista was finished, appellant Arevalo took over in ravishing Regina
and succeeded in penetrating her as well.
Ruth F. Acosta, a native of Bukidnon, left her family for Manila when she was about eighteen (18) years
old. Her highest educational attainment was the third grade of primary school. Unable to find any relatives in
Manila, she ended up loitering and sleeping on the streets of Luneta.
On January 23, 2001, about a year she had left the province, Ruth Acosta met appellant Oliver Arevalo at the
Luneta park. It was around six oclock in the evening. Appellant Arevalo told Ruth that he could help her find
a job and invited her to go with him. Ruth went with appellant Arevalo and they boarded a jeepney. They
arrived at (what turned out to be) appellant Arevalos house in Pembo, Makati, a few hours later.
Upon entering the house, appellant Arevalo pushed Ruth Acosta to the bed and stripped off her
clothes. Thereafter, appellant Arevalo removed his own clothes and forcibly inserted his penis into her
vagina. Ruth could not recall what happened immediately thereafter, except that she felt pain in her private
part. She was also bleeding badly, for she had just lost her virginity to her assailant.
That same evening, after she was ravished by appellant Arevalo, Ruth was raped by appellant Arevalos friend
and neighbor, herein appellant Organista, in the same room.
The following day, January 24, 2001, appellant Arevalo raped Ruth Acosta again. He took off his clothes,
undressed Ruth, and inserted his penis into her vagina, causing her to feel pain. While she was being raped,
Ruth attempted to resist appellant Arevalo by pulling backwards her two hands with clenched fists, but her
resistance was futile.

On January 25, 2001, appellant Arevalo forcibly had sexual intercourse with Ruth again on his bed. He
inserted his organ into her private part, and once more, she felt pain. Many other men raped Ruth in the
same room that night after paying a fee to appellant Arevalo, but she could not identify said men because she
was blindfolded by him. She recognized appellant Organista, though, as one of those who raped her while she
was blindfolded because she was able to hold his beard while he was ravishing her and she was already
familiar with his face.
On January 26, 2001, appellants Organista and Arevalo took turns in raping Ruth. Appellant Organista
removed Ruths clothes, after which, appellant Arevalo had forcible sexual intercourse with her. Try as she
might to resist the two (2) men, she was easily overpowered by them. After appellant Arevalo was through
with Ruth, he left the room. Appellant Organista then proceeded to defile her, inserting his penis into her
vagina. As a result of her ravishment by the two (2) men, Ruth experienced pain whenever she urinated.
The next day, January 27, 2001, appellant Arevalo blindfolded Ruth. Thereafter, she was raped successively
by several unidentified men.
On January 28, 2001, appellants Arevalo and Organista forced Ruth to take drugs. Next, appellant Arevalo
blindfolded Ruth. Thereafter, several unidentified men raped Ruth, one after the other, in appellant Arevalos
room. Before sexually abusing her, each of these men paid a fee to appellant Arevalo. Ruth knew this,
because she would hear the men say to him, Pare bayad or Pare ito na ang pambayad.
On January 29, 2001, appellant Arevalo vented his carnal desire on Ruth again. After undressing Ruth, he had
forcible sexual intercourse with her on his bed.
On January 30, 2001, appellant Arevalo forced himself upon Ruth once more. While appellant Arevalo was
raping her, appellant Organista, who was visiting, merely looked on and did nothing to stop his friend and
neighbor. After appellant Arevalo had ejaculated, appellant Organista took over, ravishing Ruth until he, too,
succeeded in discharging his semen on her. While this was going on, appellant Arevalo merely stood by,
laughing.
On January 31, 2001, appellant Arevalo sexually abused Ruth yet another time, piercing her womanhood and
bringing himself to a climax. Other men followed in raping her that night in appellant Arevalos room, but she
could not see them because appellant Arevalo had covered her eyes.
The following day, February 1, 2001, five (5) men raped Ruth in succession in the same room after paying a
sum to appellant Arevalo. Once again, she could not see their faces because appellant Arevalo had
blindfolded her.
On February 2, 2001, appellants Arevalo and Organista took turns in raping Ruth in appellant Arevalos
room. Ruth knew that both men had reached a climax after forcibly copulating with her, for her vagina was
very wet with their semen.
On February 3, 2001, appellant Arevalo slapped Ruth, pulled her hair, inserted his penis into her vagina and
ravished her until he ejaculated. Appellant Organista followed, similarly unleashing his seminal fluid on the
hapless woman upon reaching a climax, while appellant Arevalo looked on and held her down. Ruths ordeal
did not end at this point, for she was subsequently raped by several other men after paying appellant Arevalo
one hundred pesos (P100.00) each.

On February 4, 2001, appellants Arevalo and Organista again raped Ruth in the same room. Appellant
Organista had forcible sexual intercourse with Ruth until he ejaculated; he also forced her to eat his
penis. Appellant Arevalo followed, inserting his penis into her private part, causing it to hurt. He also
ejaculated his semen on her.
In addition, appellant Arevalo, as with previous dates, sold Ruth to many other men that day. All of them
sexually abused her after each paying appellant Arevalo one hundred pesos (P100.00).
On February 5, 2001, appellant Arevalo once more peddled Ruth and Regina to unidentified persons who
each paid him one hundred pesos (P100.00). Appellant Arevalo also forcibly copulated with the two (2)
women that day. Additionally, appellant Organista ravished Ruth to the point of ejaculation while appellant
Arevalo watched. Ruth could only lie helpless while she was being raped by appellants, as they were too
strong for her.
On February 6, 2001, appellants Arevalo and Organista raped Ruth again. Appellant Organista ravished Ruth
first, undressing her, inserting his manhood into her as she lay on appellant Arevalos bed, and helping himself
to an orgasm while leaving Ruth in pain. Appellant Arevalo then took over, defiling her as well. Thereafter, he
blindfolded her and sold her for sex to other unidentified men.
On February 7 and 8, 2001, appellant Arevalo repeated his ravishment of the helpless woman until he
ejaculated on her.
Thereafter, appellant Arevalo blindfolded Ruth and sold her flesh to many other men. Again, Ruth knew this,
for she heard them say to him, Pare bayad and she also heard him talking to them.
On February 9, 2001, appellant Arevalo blindfolded the two (2) women and sold their sexual services to
several men. Appellant Arevalo warned Ruth that he had already killed a man before, and she believed him;
hence, she did not dare remove her blindfold because she was afraid of him.
On February 10, 2001, appellant Arevalo forcibly consummated his lust on Ruth once more. He also let other
men ravish her for a fee.
On February 11, 2001, several men paid appellant Arevalo to have sex with the two (2) women. Appellant
Arevalo himself did not spare Ruth, penetrating her maidenhood yet another time until he was satisfied.
On February 12, 13, and 14, 2001, appellant Arevalo again peddled the women to other men for
sex. Appellants Arevalo and Organista were not to be outdone, for they, too, ravished Ruth on February 12
and 13, 2001.
On the night of February 14, 2001, after they had fulfilled their lustful designs on the two (2) women and
prostituted them to other men, appellants Arevalo and Organista had a drinking spree in the formers
room. Thereafter, they fell asleep. Regina Acu[]a got the key to the door from appellant Arevalos pocket,
dragged Ruth Acosta with her, and together they escaped. Regina and Ruth then reported their horrifying
ordeal to the Makati police. It was around 9:30 in the evening.
That same evening, a team of Makati policemen and barangay tanods went to appellant Arevalos house
accompanied by the Regina and Ruth. They knocked on the door. When appellant Arevalo opened the door,
he was immediately identified by the women as their ravisher. Appellant Arevalo tried to escape, but he was
quickly arrested by the police. Thereafter, the police and the two (2) women proceeded to appellant

Organistas residence which appellant Arevalo had readily pinpointed to them. The police knocked on the
door and appellant Organista opened it. Again, the two (2) women quickly identified him as their other
rapist. The moment he saw the policemen and the women, appellant Organista also tried to escape, but the
police immediately apprehended him.
The following day, the private complainants were physically examined by Dr. Miriam S. Guialani, the deputy
chief of the Womens Crisis and Child Protection Center of the Philippine National Police (PNP) in Camp Crame,
Quezon City.
Dr. Guialani found infected erosions or abrasions at the 8 and 9 oclock positions in the labial fold of Reginas
external genitalia, most likely caused by constant friction. She also noted hematoma, infection and fresh
lacerations in the hymen at the 2 and 4 oclock positions. In addition, the hymen was very very red and
swollen, indicating that it had been subjected to force and violence. There was also a foul-smelling yellowish
vaginal discharge strongly indicative of a sexually transmitted disease. On the whole, Dr. Guialani noted that
the genital findings show clear evidence of previous penetrating trauma.
On the other hand, Dr. Guialani found healed lacerations at the 4, 7 and 8 oclock positions in Ruths
hymen. She also noted edema and swelling at the hymenal rim and its mucosal tissues. Dr. Guialani similarly
reported that Ruths genital findings show clear evidence of previous trauma. [10] (Citations omitted)

Version of the Defense

On the other hand, the defense presented the following version of the facts:
OLIVER AREVALO testified that since December 27, 2000, he was in Ormoc, Leyte with his wife and two (2)
children. On February 10, 2001, he went back to Manila to borrow money from his brother Tony to put up a
sari-sari store but he was asked by his brothers secretary to come back on February 13, 2001 so he went back
to his brothers house but his brother referred him to their elder brother at Project 6, Quezon City. He was
only given P500.00. At around 4:00 oclock p.m., he proceeded to Luneta where policemen were arresting
vagrants at that time. The two (2) women, Ruth and Apple, referring to complainants Acosta and Acu[]a,
were arrested. He helped them by giving them food and clothing. They went with him to Makati and arrived
at their house at around 11:30 p.m. The next day, February 12, 2001, the two (2) women were hungry again
and Acosta was asking for transportation fare. He brought them to Organistas house and the latter
gave P10.00 to Acosta. The two (2) women left at around 1:30 in the afternoon. He had a drinking spree with
Organista at his house. At around 1:00 in the morning, he saw policemen together with the two (2) women
and one of the policemen boxed him, so he pointed Organistas house to them.
HERMINIGILDO ORGANISTA could not remember where he was from January 23, to 26, 2001 because he was
treated with ECI for about five (5) times at the National Mental Health Hospital since 1983. He claimed that
said treatment has the tendency of weakening or affecting ones memory. He corroborated the testimony of
accused Arevalo that he only gave P10.00 for the food of Acosta.
AVELINA ORGANISTA testified that her son was treated at the National Mental Health in 1983. His last
examination was in 1997. After said examination, her son could no longer work because they have to bind
him because he was uncontrollable. He even threatened her that he would kill her when she opposed what
he was doing. On the dates of the alleged rapes, her son was at home with her.

DR. PIA ALMA DE JESUS of the National Center for Mental Health testified that she first saw accused
Organista for treatment on April 11, 2001. She learned from the hospital records that said accused had been
mentally ill since 1982 or 1983 and had 23 admissions at the mental hospital. During his last admission, he
was given oral medication to control his psychotic symptoms like illusions and hallucination. Failure to
regularly take said medication could cause a relapse that would render him [unfit] for trial.
JESUS OCAMPO, driver and all around helper of accused Arevalos brother, Tony, testified that he usually see
Arevalo on Tuesdays as the latter used to ask money from Tony. [11] (Citations omitted)

Ruling of the Trial Court

The RTC found Arevalo and Organista guilty beyond reasonable doubt of 42 and 32 counts of rape,
respectively -- committed from January 23, 2001 to February 14, 2001.
The positive and straightforward testimonies of the victims, corroborated by medical reports, sufficiently
proved the guilt of appellants. Having closely observed the demeanor of the victims during trial, the lower
court found them credible. It found evidence that they had suffered extreme trauma, pain, humiliation and
distress. It held that there was no ill motivation on their part to impute such serious offenses to appellants.
The RTC found many inconsistencies in the defenses of denial and alibi resorted to by Arevalo. First, he
could not state with certainty whether he and his family had left for Ormoc City or for Valencia, Leyte, when
the rapes were committed. He failed to present bus tickets to support his claim, notwithstanding his
manifestation during the trial that he would present them before the court. Second, the trial court was
puzzled by his testimony that, because his brother came home early from work on Tuesdays, on those days he
had to go to the latters house, which served as both office and residence. Third, on cross-examination, the
brothers helper contradicted Arevalo by testifying that the former had not seen the latter in the house on
February 10, 2001, the date on which one of the rapes had supposedly taken place. Fourth, the residence of
the brother of Arevalo turned out to be located in Project 2, Quezon City, not in Project 3 as the latter
repeatedly testified to.
The defense of insanity proffered by Organista likewise failed to convince the trial court. He presented his
mother who testified that he was not of sound mind, and that he had never left her side ever since he was a
young boy. He contradicted her, however, when he declared on the stand that he was an electrician and a
mason by vocation. According to him, during the period 1999 to March 2001 when he engaged in his
vocation, he never received any complaints on his behavior from the people he constantly worked or
associated with.
Although Organista was indeed confined at the National Center for Mental Health, the period of his
confinement did not include the period of the commission of the rapes, as he was last discharged from the
Center in 1997. Moreover, he failed to prove his claimed insanity during or near the time of the commission
thereof.
On the contrary, when the arresting policemen, together with the victims, proceeded to his house,
Organista tried to escape. His reaction was indicative of guilt and awareness of the wrong he had inflicted on
the victims.
Hence, this automatic review before us.[12]

The Issues

Appellants raise the following errors for our consideration:

I
The lower court erred in not appreciating the exempting circumstance of insanity interposed by Accusedappellant Herminigildo Organista despite strong and convincing evidence presented to prove the same.
II
The lower court erred in finding that conspiracy existed between the Accused-appellants.
III
The lower court erred in imposing upon x x x Accused-appellant Herminigildo Organista the supreme penalty
of death notwithstanding the presence of a mitigating circumstance.
IV
The lower court erred in imposing the supreme penalty of death upon Accused-appellants on the assumption
that they are guilty of the crime charged.[13]
Simply put, appellants arguments hinge on the following: (1) the trial court failed to appreciate
Organistas defense of insanity; (2) no conspiracy existed between appellants; and (3) they should have been
found guilty of simple, not qualified, rape.
For clarity, we shall discuss in reverse order the issues raised by appellants.

The Courts Ruling

Appellants are guilty of simple, not qualified, rape; hence, the penalty for each count should be reduced
from death to reclusion perpetua.

First Issue:
Proper Crime and Penalty
Appellants maintain that the evidence of the prosecution is weak, and that their defense of alibi and denial
should have entitled them to an acquittal. Organista adds that, assuming they were guilty, he should have
been entitled to the mitigating circumstance of illness that diminishes an offenders exercise of will power,
pursuant to Article 13(9)[14] of the Revised Penal Code.
In addition, appellants contend that the Informations did not allege with specificity that two persons had
raped the victims. Therefore, they argue, the rapes should not have been qualified and they should not have
been sentenced to death, which is the higher penalty provided under Article 266-B of the Revised Penal
Code. Accordingly, the penalty for each conviction of rape should have been reclusion perpetua.
The contentions of appellants are partly meritorious. While their respective defenses of denial, alibi and
insanity must fail, we find them guilty only of simple, not qualified, rape.

Alibi and Denial

The positive, consistent and straightforward testimonies of the victims sufficiently established appellants
culpability. Well-settled is the rule that denial and alibi, being weak defenses, cannot overcome the positive
testimonies of the offended parties.[15]
In order to merit credibility, denial must be buttressed by strong evidence of non-culpability,[16] which
herein appellants failed to show. And in order for alibi to prosper, the accused must prove not only that they
were at some other place at the time of the commission of the crime, but also that it was physically impossible
for them to be at the locus delictior its immediate vicinity.[17]
In the present case, appellants failed to demonstrate this fact. Without presenting any evidence to
support his bare assertion,[18] Arevalo merely testified that he was in Ormoc, Leyte, from December 27, 2000,
to February 10, 2001. He said that the bus ticket evidencing his trip to Leyte on December 27, 2000, was with
his wife, while the return ticket to Manila on February 10, 2001, was with his brother. To corroborate his
testimony, he manifested that he would present the tickets in court after retrieving them,[19] but he failed to
do so.
On the other hand, the mother of Organista averred that her son had stayed with her during the entire
period of the commission of the rapes. But since their house was near Arevalos, or the place where the rapes
were committed, then it would not have been unlikely for him to be in the vicinity at the time of the rapes.
The victims testimonies, corroborated by the results of the medical examination, convincingly proved
that appellants were the perpetrators. It is a time-tested rule that the evaluation of the credibility of
witnesses and their testimonies is best undertaken by the trial court, because it had the opportunity to
observe them firsthand and to note their demeanor and conduct on the witness stand. [20] For this reason, its
findings on such matters, absent any arbitrariness or oversight of facts or circumstances of weight and
substance, are final and conclusive upon this Court.[21] It is likewise well-settled that when a woman declares
that she has been raped, she says in effect all that is necessary to show that rape has been committed; and
when her testimony passes the test of credibility, the accused can be convicted on the basis thereof. [22]
On the rapes committed against her on January 23 and 24, 2001, Acua testified as follows:
Q: You said you were raped on January 23, 2001 and it was Oliver Arevalo who raped you. Will you
kindly tell the Honorable Court how this was done?
A: During that night when Oliver came back, he forcibly took off my clothes including my short
pants.
Q: And after Oliver took off your clothes and short pants, what else did he do, if he did anything?
A: I asked him Kuya, what will you do? Why are you taking off my clothes?
xxx

xxx

xxx

Q: After that, what did he do when you shouted for help?

A: He approached me and he forcibly raised my feet and inserted his penis into my vagina. I
shouted, pleaded for help.
Q: Was Oliver successful in having his penis penetrate your female organ?
A: Yes, sir. x x x.
xxx

xxx

xxx

Q: So do you recall how long you were raped by Oliver?

A: It started January 23 up to February 14, 2001, sir.
Q: And where did these other sexual assaults after January 23, 2001 meaning January 23, 24, 25, 26,
27, 28, 29, 30, 31, February 1 up to Feb[ruary] 14, 2001 happened?
A: In the house of Oliver.
xxx

xxx

xxx

Q: At noon, ikaw ay walang damit mula ulo hanggang paa?

A: Opo.
Q: Iyon din ang gumahasa sa iyo?
A: Si Oliver po.
Q: Paano mo nalaman, nakapiring ka?
A: Noong tina[n]ggalan niya ako ng piring ay si Oliver naman po ang sumunod.
Court:
Q: Ang ibig mong sabihin ay matapos yung ibang tao na gahasain ka ay sumunod naman si Oliver
noong January 24?
A: Opo.[23]
On the rapes that occurred from January 25 to 27, 2001, she testified thus:
Q: So on January 25, 2001, you are saying that it was not Oliver Arevalo who raped you but
somebody else only that person whom you could not identify gave payment to Oliver to have
sexual intercourse with you? Is that what you are saying?
A: Yes, sir. But after that person, he was the one who would follow in raping me, sir.
xxx

xxx

xxx

Q: Who sexually assaulted you on January 26, 2001?

A: Oliver Arevalo, sir.
INTERPRETER:
Witness pointing to accused Oliver Arevalo.
FISCAL NAOLA:
Q: And how did he sexually assault you on January 26, 2001?
A: I was naked at that time and he was poking the knife on me.
INTERPRETER:
Witness demonstrating pointing from her breast down to her private part.
FISCAL NAOLA:
Q: At that time that Oliver Arevalo, Jr. was poking a knife from your breast down to your private
organ, were you wearing anything?

A: None, sir.
Q: So what else happened after that poking of a bladed weapon?
A: After that, he raped me.
Q: When you said [he] raped you, you mean he inserted his penis into your female organ?
A: Yes, sir.
Q: And was he able to reach climax? Meaning, was he able to complete the copulation?
A: Yes, sir.
xxx

xxx

xxx

Q: Lets go now to the incident on January 27, 2001 which is the 5 th day. Tell us, was any rape
committed on you on January 27, 2001?
A: Yes, sir, everyday. I do not know whats happening already because patang-pata na ang katawan
ko.
Q: And could you recall if Oliver Arevalo, Jr. raped you on January 27, 2001, the 5 th day of your being
in his house?
A: Yes, sir.
Q: And could you recall how did this happen?
A: I could recall that everyday he was raping me.
Q: At what time was this rape being committed?
A: I do not know because from what I could recall, everytime somebody would use me, he would
follow.
xxx

xxx

xxx

Q: So you are positively certain that on January 27, 2001, the 5 th day of your being in the house of
Oliver Arevalo that accused Oliver Arevalo raped you?
A: Yes, sir.[24]
On the rapes from January 29 to February 14, 2001, she narrated the events as follows:
Q: Mrs. Witness, you stopped last time on the date January 29, 2001 which is the 7 th day of your
being in the house of accused Oliver Arevalo, Jr., the question is, please tell the Honorable Court
what happened to you on January 29, 2001 in the house of Oliver Arevalo, Jr. in Makati City?
A: Oliver Arevalo forced me to take drugs and then he used me, they were plenty, sir.
Q: And when you said you were used, are you referring [to] being abused sexually?
A: Yes, sir.
Q: Was Oliver Arevalo successful in having sexual intercourse with you?
A: Yes, sir.
xxx

xxx

xxx

Q: And was Oliver Arevalo successful in having sexual intercourse with you on January 30, 2001?

A: Yes, sir.
Q: Did he finish having sexual intercourse with you?
A: Yes, sir.
Q: Lets now go to January 31, 2001. Now, what happened to you on January 31, 2001?
A: He also used me during that day, sir, x x x.
xxx

xxx

xxx

Q: Lets now go to February 1, 2001, what happened to you on February 1, 2001?

A: He again raped me and then sold me again to other male persons.
Q: And was Oliver Arevalo, Jr. successful in having sexual intercourse with you on February 1, 2001?
A: Yes, sir.
Q: And did he finish?
A: Yes, sir.
xxx

xxx

xxx

Q: What happened to you on February 3 at the house of Oliver Arevalo in Makati City?
A: I was also raped, sir, by Oliver Arevalo.
Q: Was he successful in raping you?
A: Yes, sir.
Q: Did he finish?
A: Yes, sir.
Q: What were you wearing at the time you [were] being raped?
A: None, sir, nothing.
Q: What about Oliver Arevalo, what was he wearing?
A: Nothing also, sir.
Q: Were you lying down when you were being raped?
A: Yes, sir.
Q: Did you resist him when you were being raped?
A: I did not resist him already, sir, because I was patampata na po ang katawan ko.
Q: How about on February 4, 2001, what happened to you?
A: Also the same, sir, I am not resisting already I am just crying.
Q: Were you raped on February 4, 2001?
A: Yes, sir.
Q: Who raped you?
A: Oliver Arevalo, sir.

Q: What were you wearing at the time that you [were] being raped?
A: Nothing, sir.
Q: How about Oliver Arevalo, what was he wearing?
A: Nothing also, sir.
Q: Did he finish?
A: Yes, sir.
Q: On February 5, 2001, what happened to you?
A: The same with February 4, sir.
Q: Meaning, Oliver Arevalo raped you also?
A: Yes, sir.
Q: What were you wearing at the time that you [were] being raped?
A: Nothing also, sir.
Q: How about Oliver Arevalo, what was he wearing?
A: Nothing also, sir.
Q: Did he finish and fulfilled raping you on February 5, 2001?
A: Yes, sir.
Q: Meaning he was able to insert and penetrate his penis to your private parts, is that what you
mean?
A: Yes, sir.
Q: On February 6, 2001, what happened to you, Mrs. Witness?
A: I was sick last February 6, sir.
Q: February 6, you got sick. Do you recall what illness or sickness is this?
A: I had fever during that time and it was Rose who was taking care of me.
Q: Were you raped on February 6, 2001?
A: Yes, sir.
Q: Who raped you?
A: Oliver, sir.
Q: What were you wearing when you [were] raped?
A: Nothing, sir.
Q: What about Oliver Arevalo, what was he wearing?
A: Nothing also, sir.
Q: Before you were raped, did you tell him that you were sick?
A: No, sir.

xxx

xxx

xxx

Q: How about on February 7, 2001, what happened to you?

A: I was also raped by Oliver.
Q: Was he successful?
A: Yes, sir.
Q: Did he finish?
A: Yes, sir.
Q: What were you wearing at the time that he raped you?
A: Nothing, sir.
Q: How about Oliver Arevalo, what was he wearing?
A: Nothing also, sir.
Q: What position were you at the time that you [were] being raped, were you lying down?
A: Lying down, sir.
Q: On the floor or on the bed?
A: On the bed, sir.
Q: Did you resist him on February 7, 2001?
A: Yes, sir.
Q: What did you do to him on February 7, 2001?
A: I told him to pity me parang awa mo na.
INTERPRETER:
Witness demonstrating that she was chilling and she was pushing the accused.
FISCAL NAOLA:
Q: Were you successful in pushing him?
A: No, sir.
Q: And Oliver Arevalo was able to have his penis penetrate you private parts?
A: Yes, sir.
Q: How about on February 8, 2001, what happened to you?
A: I had a disease, sir, tulo.
Q: Aside from having that vaginal disease on February 8, 2001, what else if any happened to you if
you recall?
A: I was used again by Oliver, sir.
Q: Did he finish?
A: Yes, sir.

Q: What were you wearing at the time that he raped you?

A: Nothing, sir.
Q: How about Oliver Arevalo, what was he wearing?
A: Nothing also, sir.
Q: Did you resist him?
A: No, sir.
Q: Why, why not?
A: Patampata na po ang katawan ko nanghihina na po ako.
Q: How about on February 9, 2001, what happened to you if any did happen to you?
A: Also like that, sir, up to February 14, I was being raped everyday.
Q: So, from words you are saying the remaining days February 9 to February 14 you were not
allowed to leave the house of Oliver Arevalo, Jr.?
A: Yes, sir.
Q: And during those days aside from you and Rose, were there any other person who were able to
enter that house?
A: Yes, sir.
Q: Who?
COURT:
Witness pointing to a man also in yellow shirt and when asked he identified himself as
Herminigildo Organista.
FISCAL NAOLA:
Q: Could you recall, Mrs. Witness, on what date did Herminigildo Organista enter the house of Oliver
Arevalo, Jr. in Makati City?
A: On February 14, sir.
Q: Do you know that February 14 is Valentines Day?
A: Yes, sir.
Q: So what happened to you on February 14, 2001 in the house of Oliver Arevalo, Jr. *on+ Valentines
Day?
A: I was raped by two (2) persons, Oliver and Herminigildo.
xxx

xxx

Q: Who first raped you on February 14, 2001, Valentines Day?

A: Herminigildo, sir.
Q: He was the first one?
A: Yes, sir.

xxx

Q: Who were present if any when he raped you?

A: Oliver Arevalo, sir.
Q: The two (2) of them were there?
A: Yes, sir.
Q: And how did Herminigildo Organista raped you on February 14, 2001?
A: He inserted his private parts to my vagina, sir.
Q: Before that, did you resist him?
A: Yes, sir.
Q: How did you resist Herminigildo Organista?
A: I pushed him, sir.
Q: Were you successful in pushing him?
A: Yes, sir.
Q: And after pushing him, what happened next if anything else happened?
A: Oliver said kaya mo yan pre, then what he did was he inserted his private parts to my private
parts, sir.
Q: Now tell us, what were you wearing at the time that Herminigildo Organista inserted his penis to
your private parts?
A: Nothing, sir.
Q: Who removed your clothing before Herminigildo Organista was able to have his penis x x x
insert[ed] to your private parts?
A: Oliver Arevalo, sir.
Q: Oliver Arevalo removed your clothing?
A: Yes, sir.
Q: Were you wearing bra and panty at that time before you [were] raped?
A: None, sir.
Q: Only your clothes?
A: Yes, sir.
Q: What kind of clothes is this, duster or pants and blouse?
A: T-shirt only, sir.
Q: How about your lower portion, what were you wearing?
A: Nothing, sir.
Q: Only T-shirt?
A: Yes, sir.
Q: And after Oliver Arevalo, Jr. removed your T-shirt, what happened to you?

A: I was raped by Herminigildo Organista.

Q: In what position were you at the time that you [were] being raped by Herminigildo Organista?
A: Lying down on the floor, sir.
Q: Not on the bed?
A: Yes, sir.
Q: Was Herminigildo Organista successful in having you raped on February 14, 2001?
A: Yes, sir.
Q: Did he finish?
A: Yes, sir.
Q: At the time that you [were] being raped, were you blindfolded?
A: No, sir.
Q: How about Oliver Arevalo, where was he at the time that you [were] being raped by Herminigildo
Organista?
A: At the bed, sir.
Q: And what was he doing?
A: He [was] just looking, sir.
Q: Looking at the both of you?
A: Yes, sir.
Q: And he did not do anything to prevent Herminigildo Organista from completing and successfully
penetrating his penis to your private parts?
A: Nothing, sir.
Q: So, after Herminigildo Organista finished and successfully completed having intercourse with you,
what else happened if anything happened on February 14, 2001?
A: It was followed by Oliver Arevalo, Jr.
Q: Was he successful in having you raped on February 14, 2001?
A: Yes, sir.
Q: Was his penis able to penetrate your private parts?
A: Yes, sir.[25]
On the other hand, on the rapes committed against her from January 23 to February 13, 2001, Acosta
testified as follows:
COURT:
Sabihin mo nga sa hukuman kung papano ka o bakit nandoon sa bahay ni Oliver nuong 23 ng
Enero taong kasalukuyan?
A

Naglalakad po ako sa Luneta nakasalubong ko siya. Ang sabi po niya sa akin ipapasok niya ako sa
trabaho.

Q Ano ang sumunod na pangyayari ng sabihin sa iyo ni Oliver na ipapasok ka niya ng trabaho
samantalang ikaw ay nasa Luneta?
A

Ihahanap daw po niya ako ng trabaho.

Q Proceed.
FISCAL NAOLA:
Q Nung sabihin niya sa iyo na ihahanap ka niya ng trabaho, ano pa ang sumunod na pangyayari?
A

Sinakay po niya ako sa jeep.

Q Nung nakasakay na kayo sa jeep, saan kayo nagtungo? Saan kayo pumunta?
A

Sa bahay po ni Oliver.

Q Sabihin mo sa [kagalang-galang] na Hukom kung alam mo kung saan yung bahay ni Oliver.
A

Sa Makati, Cembo.

Q Nung dumating kayo sa bahay ni Oliver doon sa Makati, ano ang nangyari kung meron man?
A

Tinulak po ako sa kama.

COURT:
Q Anong oras ka dumating sa bahay ni Oliver?
A

Hindi ko na po maalala.

Q Maari mo bang sabihin kung gabi o araw?

A

Gabi, po.

Q Ikaw ba nung makasalubong mo si Oliver sa Luneta ay gabi rin?

A

Opo.

Q Proceed.
FISCAL NAOLA:
Q Pagkatapos kang itulak ni Oliver sa kama, ano pa ang sumunod na nangyari kung meron pa?
A

Hinubad po yung t-shirt ko, shorts, panty at bra.

Q Ikaw bay lumaban sa kanya habang hinuhubad ang iyong shorts, panty at bra?
A

Malakas po siya.

Q Ano pa ang sumunod na pangyayari matapos kang hubaran ni Oliver ng iyong shorts, panty at
bra?
A

Pinasok po niya yung titi niya sa ano ko.

Q Yung sinasabi mong ano mo, ito ba yung iyong ari?

A

Opo.

Q At matapos ipasok ni Oliver ang kanyang titi sa iyong ari, ano pa ang sumunod na nangyari?
A

Hindi ko po matandaan.

Q Ano ang iyong naramdaman nung ipinasok ni Oliver ang kanyang titi sa iyong ari?
A

Masakit, po.

Q Si Oliver naman, naaalala mo pa ba kung ano ang suot ni Oliver, kung meron man nuong
pinagsasamantalahan ka niya?
A

Wala po.

Q Ibig mong sabihin siya ay hubo at hubad?

A

Opo.

Q Pagkatapos nitong Enero 23 taong kasalukuyan 2001, meron pa bang ibang pagkakataon na ikaw
ay ginahasa ni Oliver?
A

Opo.

Q Ilang beses kung natatandaan mo?

A

Maraming beses, po.

Q Pagkatapos nitong Enero 23 taong kasalukuyan, kinabukasan January 24, 2001, masasabi mo ba
sa kagalang-galang na Hukom kung nanatili ka roon sa bahay ni Oliver?
A

Opo.

Q Puede bang sabihin mo sa kagalang-galang na Hukom kung mayroong nangyari sa iyo

kinabukasan January 24, 2001?
A

Opo.

Q Ano ang nangyari sa iyo?

A

Ni-rape po ako.

Q Nino?
A

Oliver po.

Q Itong Oliver na sinasabi mo, ito rin ba yung Oliver na itinuro mo kanina?
A

Opo.

Q Nung ni-rape ka ni Oliver sino ang nandoon sa bahay niya kung natatandaan mo?
A

Wala po.

Q Kilala mo ba itong isang taong nagngangalang Herminigildo Organista?

A

Opo.

Q Kung narito siya sa loob, puede bang ituro mo siya?

A

(Witness pointing to accused Organista.)

Q Itong si Herminigildo Organista, naroon ba sa bahay ni Oliver nang dumating ka noong January 23,
2001?
A

Opo.

Q May kinalaman ba siya, kung meron man, sa ginawang panggagahasa sa iyo ni Oliver nuong
January 23, 2001?

Ni-rape rin po niya ako.

Q Kailan?
A

Nuon pong January 23.

Q Sinong naunang mang-rape sa iyo, si Oliver o si Herminigildo noong January 23, 2001?
A

Si Oliver po.

Q Pagkatapos ni Oliver sinong sumunod?

A

Si Lito po.

Q Itong sinasabi mong Lito, nandirito ba sa loob ng hukuman?

A

Opo.

Q Puede bang ituro mo yung sinasabi mong taong nang-rape sa iyo na ang ngalan ay Lito?
A

(Witness pointing to accused Herminigildo Organista again.)

Q Ibig mong sabihin ay dalawang beses kang ginahasa nuong January 23, 2001. Una ni Oliver
Arevalo at pangalawa Herminigildo Organista, tama ba yon?
A

Opo.

Q Sinabi mo rin na nung sumunod na araw January 24, ginahasa ka rin ni Oliver, tama ba?
A

Opo.
xxx

xxx

xxx

Q Pagkatapos nuong January 24, 2001, meron pa bang nangyari kung meron man nuong January
25?
A

Opo.

Q Sabihin mo sa kagalang-galang na Hukom kung ano ang nangyari sa iyo?

A

Ni-rape po niya ako.

Q Sinong nang-rape sa iyo?

A

Si Lito po.

Q Ito rin yung Litong itinuro mo kanina?

A

Opo.

COURT:
Q Paano mo nalaman na Lito ang palayaw niya?
A

Nung nahuli na po sila.

Q Continue.
FISCAL NAOLA:
Q Pero ang mukha niya natatandaan mo?
A

Opo may balbas po siya.

Q Nung ni-rape ka ni Lito o ni Herminigildo Organista nuong January 25, 2001, meron bang ibang
tao doon sa bahay?
A

Meron po.

Q Sabihin mo sa Hukom kung sino?

A

Hindi ko po kilala kasi po nakapiring ang mga mata ko.

Q Papaano mo nasabi na si Lito ang gumahasa sa iyo kung nakapiring ang mga mata mo?
A

May balbas po siya.

Q Nakita mo ba siya nitong January 25, 2001?

A

Nahawakan ko lang po ang balbas niya.

Q Oo nahawakan mo nga pero nakita mo ba siya nuong January 25, 2001, itong sinasabi mong Lito?
A

Opo.

Q Bukod kay Lito meron pa bang gumahasa sa iyo nuong January 25, 2001?
A

Binebenta po kami.

Q Si Oliver Arevalo, Jr., ginahasa ka rin ba niya nuong January 25, 2001?
A

Opo.

Q Sinong nauna, si Lito o Herminigildo Organista o si Oliver Arevalo?

A

Si Oliver po.

Q At ang sumunod si Lito o si Herminigildo Organista?

A

Opo.

Q Nung sinabi mong si Oliver ang naunang nanggahasa, nagtagumpay ba siya sa kanyang
panggagahasa?
A

Opo.

Q Anong naramdaman mo nuong ginagahasa ka ni Oliver?

A

Masakit po ang ari ko.

Q Nasaan ka nung ginagahasa ka niya, sa kama ba o nasa sahig?

A

Nasa kama po.

Q Ilan kayo sa kama nung ginagahasa ka ni Oliver?

A

Isa po.

Q Ibig mong sabihin ikaw lang at si Oliver?

A

Opo.

Q Nung sumunod na araw January 26, puede bang sabihin mo sa kagalang-galang na Hukom kung
may nangyari sa iyo?
A

Opo.

Q Anong nangyari sa iyo?

Ni-rape po.

Q Sinong nang-rape sa iyo?

A

Si Oliver po.

Q Bukod kay Oliver, bukod sa pangre-rape ni Oliver, meron pa bang nangyari sa iyo?
A

Opo.

Q Ano yon, pakisabi mo sa hukuman?

A

Si Lito po.

Q Anong ginawa niya sa iyo?

A

Rape din po.

Q Ikaw bay nakahubad noon nang ni-rape ka ni Oliver?

A

Opo.

Q Sino ang naghubad sa iyo?

A

Si Lito po.

Q Matapos kang hubaran ni Lito ni-rape ka ni Oliver, yon ba ang ibig mong sabihin?
A

Opo.

Q Ikaw ba ay lumaban kay Lito o kay Oliver?

A

Malakas po silang dalawa.

Q Matapos kang gahasain ni Oliver sino ang sumunod?

A

Si Lito po.

Q Nagtagumpay ba si Lito sa panggagahasa sa iyo?

A

Opo.

Q Ibig mong sabihin naipasok niya ang ari niya sa ari mo ganoon ba?
A

Opo.

Q Ano ang naramdaman mo nung ipasok ang ari niya sa ari mo?
A

Masakit po ang pag-ihi ko.

xxx

xxx

xxx

Q Nuong January 29, may naaalala ka ba kung may nangyari sa iyo?

A

Rape din po.

Q Sino ang nang-rape sa iyo nung January 29, 2001?

A

Oliver po.

Q Bukod kay Oliver meron pa bang ibang nang-rape sa iyo nuong January 29?
A

Hindi ko po nakilala.

Q Nagtagumpay ba si Oliver sa panggagahasa sa iyo nung January 29?

Opo.

Q Ikaw bay hubad nung nangyari yon?

A

Opo.

Q Sino ang naghubad ng iyong damit nuong January 29?

A

Si Oliver po.

Q Nung ginahasa ka ni Oliver nung January 29, ano naman ang suot mo, kung meron man?
A

Wala po.

Q Sino ang nag-alis ng iyong kasuotan nung January 29?

A

Si Oliver po.

Q Lumaban ka ba kay Oliver nung ginagahasa ka niya nung January 29?

A

Malakas po siya.

Q Bukod kay Oliver meron pa bang ibang gumahasa sa iyo nung January 29?
A

Hindi ko po kilala kasi may takip po ang mga mata ko.

Q Ang nakilala mo lang ay si Oliver?

A

Opo.

Q Saan ka ginahasa ni Oliver, sa sahig ba, sa kama o saan?

A

Sa kama po.

Q Dumako tayo sa January 30. Natatandaan mo ba kung may gumahasa sa iyo nuong January 30?
A

Opo.

Q Sabihin mo nga sa kagalang-galang na Hukom kung ano nangyari sa iyo nuong January 30, 2001?
A

Rape po.

Q Sino ang nang-rape sa iyo?

A

Oliver po.

Q Sino pa bukod kay Oliver, kung meron man?

A

Si Lito po.

Q Sino ang naunang nang-rape sa iyo nung January 30, si Lito o si Oliver?
A

Si Oliver po.

Q Nung nire-rape ka ni Oliver nung January 30, natatandaan mo ba kung nasaan si Lito?
A

Opo.

Q Nasaan siya?
A

Pumunta po siya sa bahay ni Oliver?

Q Habang nire-rape ka ni Oliver sa kama, nasaan si Lito?

A

Nanonood po.

Q Bakit mo nasabing nanonood siya, nakita mo ba siya?

A

Opo.

Q Pinigilan ba niya si Oliver habang ginagahasa ka niya?

A

Hindi po.

Q Ikaw, hinawakan ka ba ni Lito habang nire-rape ka ni Oliver?

A

Opo.

Q Saan ka hinawakan ni Lito habang ginagahasa ka ni Oliver?

A

Sa kamay po.

Q Ilang kamay ang hinawakan sa iyo ni Lito?

A

Dalawa po.

Q At nakatapos ba si Oliver ng panggagahasa sa iyo nung January 30?

A

Opo.

Q Papano mo nasabing nakatapos si Oliver?

A

Basa na po.

Q Alin ang basa na?

A

Ang ari ko po.

Q Matapos kang gahasain ni Oliver at naramdaman mong basa na ang ari mo, ang sumunod namang
gumahasa sa iyo ay si Lito, ganon ba?
A

Opo.

Q Nagtagumpay ba si Lito sa panggagahasa sa iyo?

A

Opo.

Q Nakatapos ba siya?
A

Opo.

Q Papano mo nalaman na nakatapos si Lito ng panggagahasa sa iyo?

A

Nilabasan din po.

Q Si Lito?
A

Opo.

Q Habang ginagahasa ka ni Lito nandon din ba si Oliver?

A

Opo.

Q Anong ginawa sa iyo ni Oliver habang ginagahasa ka ni Lito?

A

Tumatawa po.

Q Bukod sa tumatawa si Oliver habang ginagahasa ka ni Lito, hinawakan ka ba niya sa kamay o sa

ibang bahagi ng iyong katawan kung natatandaan mo?

Kamay po at paa.

Q Hinawakan ni Oliver?
A

Opo.

Q Matapos kang gahasain ni Lito nong January 30, 2001, natatandaan mo ba kung may nangyari sa
iyo nung sumunod na araw nung January 31, 2001?
A

Opo.

Q Ano ang nangyari sa iyo nung January 31, 2001?

A

Rape din po.

Q Sinong nang-rape sa iyo?

A

Oliver po.

Q Nagtagumpay ba siya sa panggagahasa sa iyo nung January 31, 2001?

A

Opo.

Q Nakatapos ba siya?
A

Opo.

Q Papano mo nasabi na natapos si Oliver ng panggagahasa sa iyo?

A

Basa na po ang ari ko.

Q Bukod kay Oliver Arevalo, meron pa bang nanggahasa sa iyo nung January 31, 2001?
A

Opo.

Q Sino ang nanggagahasa sa iyo bukod kay Oliver?

A

Hindi ko po makilala kasi may takip ang mga mata ko.

Q So ang natatandaan mo lang ay si Oliver?

A

Opo.

Q Nung sinabi mong nagtagumpay at natapos si Oliver sa panggagahasa sa iyo, puede bang sabihin
mo sa Hukom kung ang ari niya ay naipasok niya sa ari mo?
A

Opo.

Q Naramdaman mo ba nang ipasok ni Oliver yung ari niya sa ari mo?

A

Opo.

Q Itinulak mo ba siya habang ginagahasa ka niya?

A

Malakas po siya.

Q Hindi mo siya naitulak?

A

Hindi po.

Q Meron ka bang damit noon o hubot hubad ka habang ginagahasa ka nung January 31, 2001.
A

Wala na po.

Q Sinong nag-alis sa iyo ng damit mo nung January 31, 2001?

A

Si Oliver po.

Q Si Oliver naman ano ang damit niya, siya ba ay may damit o wala nung January 31, 2001.
A

Wala po.

Q So ibig mong sabihin ikaw at si Oliver ay parehong hubot hubad nung ginagahasa ka niya*?+
A

Opo.

Q Saan ka niya ginahasa, sa kama ba o sa sahig, o sa anong lugar ng bahay?

A

Sa kama po.
xxx

xxx

xxx

Q Sino ang nanggahasa sa iyo noong February 2, 2001?

A

Si Oliver at si Lito po.

Q Nagtagumpay ba si Oliver ng panggagahasa sa iyo?

A

Opo kaming dalawa po ni Regina.

Q Matapos kang gahasain ni Oliver, at nagtagumpay siya, sino pa ang gumahasa sa iyo, kung meron
man?
A

Hindi ko po kilala kasi may takip ang mga mata ko.

Q Natatandaan mo ba kung nandoon si Herminigildo Organista noong February 2, 2001, habang

ginagahasa ka ni Oliver Arevalo?
A

Opo.

Q Anong ginagawa niya habang ginagahasa ka ni Oliver?

A

Wala po.

Q Nanonood siya?
A

Opo.

Q Hinawakan ba niya ang kamay mo o paa, ni Herminigildo?

A

Opo.

Q Noong February 2, 2001?

A

Opo.

Q Meron ka ba noong piring o takip sa mata?

A

Opo.

Q Papano mo nalaman na hinawakan ang kamay mo o paa ni Herminigildo gayong may takip ang
iyong mga mata?
A

Naramdaman ko po.

Q Ikaw bay may suot na damit habang ginagahasa ka ni Oliver nung February 2, 2001?
A

Wala po.

Q Sinong nag-alis ng damit mo?

A

Si Oliver po.

Q Lumaban ka ba sa kanya habang inalisan ka ng damit?

A

Malakas po siya.

Q Ano naman ang suot ni Oliver nung ginahasa ka niya nung February 2?
A

Wala po.

Q Nakatapos ba si Oliver sa panggagahasa sa iyo nung February 2?

A

Opo.

Q Papano mo nalaman na nakatapos si Oliver?

A

Basa na po ang ari ko.

Q Ano naman ang nararamdaman mo habang pinapasok ni Oliver ang ari niya sa ari mo?
A

Masakit po.

Q Bukod kay Oliver meron pa bang gumahasa sa iyo nuong February 2, 2001?
A

Opo. Si Lito po.

Q Pagkatapos ni Oliver ginahasa ka ni Lito?

A

Opo.

Q Nagtagumpay ba si Lito o Herminigildo Organista sa panggagahasa sa iyo nung February 2, 2001?

A

Opo.

Q Nakatapos ba siya?
A

Opo.

Q Bakit mo nasabi na nakatapos si Lito ng panggagahasa sa iyo?

A

Naramdaman ko pong basa.

Q Ang ano?
A

Ang ari ko po.

Q Nasaan si Oliver habang ginagahasa ka ni Herminigildo?

A

Nanonood po.

Q Bukod sa panonood, meron ba siyang ginawa kung meron man habang ginagahasa ka ni Lito?
A

Hinawakan po ang kamay ko.

Q Dumako tayo sa sumunod na araw February 3, 2001. Natatandaan mo ba kung may nangyari sa
iyo nuong February 3, 2001?
A

Opo.

Q Ano ang nangyari sa iyo?

A

Ni-rape po kami ni Regina.

Q Sino ang nang-rape sa inyo?

A

Si Oliver at si Lito po.

Q Nuong February 3, 2001, sino ang unang nang-rape sa iyo?

A

Oliver po.

Q Saang lugar ka niya ni-rape?

A

Sa bahay po niya.

Q Saang parte ng bahay?

A

Cembo, Makati.

Q Oo, pero saan ba sa kama, sa sahig.?

A

Sa kama po.

Q Lumaban ka ba kay Oliver bago ka niya ginahasa nuong February 3?

A

Malakas po siya.

Q Sinasaktan ka ba niya?
A

Opo.

Q Sa papanong paraan?
A

Sampal po.

Q Ano pa kung meron?

A

Sabunot po.

Q Ano pa kung meron?

A

Wala na po.

Q Pagkatapos kang sampalin at sabunutan ano ang ginagawa sa iyo ni Oliver?

A

Ni-rape po niya ako.

Q Sigurado ka ba diyan?
A

Opo.

Q Si Oliver naman, meron ba siyang damit nung ginagahasa ka niya?

A

Wala na po.

Q Nakita mo ba nung nag-alis siya ng damit?

A

Nakita ko po wala na siyang damit.

Q Matapos kang hubaran at nakita mo siyang wala ng damit, ano naman ang sumunod na nangyari?
A

Pinasok po ang ari niya sa akin.

Q Nakatapos ba siya?
A

Opo.

Q Papano mo nasabi na nakatapos si Oliver sa panggagahasa sa iyo nung February 3, 2001?

Basa na po ang ari ko.

Q Pagkatapos na naramdaman mo na basa na ang ari mo ano ang sumunod na nangyari?

A

Ni-rape po ako.

Q Nino?
A

Lito, po.

Q Meron ba siyang suot na damit nuong ni-rape ka ni Lito?

A

Wala na po.

Q Nakita mo ba ng maghubad si Lito?

A

Opo.

Q Nakatapos ba si Lito ng panggagahasa sa iyo?

A

Opo.

Q Papano mo nalaman na nakatapos si Lito ng panggagahasa sa iyo?

A

Basa na po ang ari ko.

Q Nasaan naman si Oliver habang ginagahasa ka ni Lito?

A

Nanonood po.

Q Hinawakan ba niya ang kamay mo o paa mo?

A

Opo.
xxx

xxx

Q Sino ang nang-rape sa iyo nuong February 4, 2001?

A

Si Oliver po.

Q Nagtagumpay ba si Oliver nuong February 4?

A

Opo.

Q Saang lugar ka ng bahay niya ni-rape?

A

Sa kama po.

Q May damit ka ba ng gahasain ka ni Oliver?

A

Wala na po.

Q Sino ang nag-alis sa iyo ng iyong damit?

A

Si Oliver po.

Q Si Oliver, meron ba siyang damit nang gahasain ka noong February 4?

A

Wala na po.

Q Nagtagumpay ba siya ng panggagahasa sa iyo nung February 4?

A

Opo.

Q Nakatapos ba siya?

xxx

Opo.

Q Papano mo nasabi na nakatapos siya sa panggagahasa sa iyo nuong February 4?

A

Basa na po ang ari ko.

Q Papano mo nasabi na basa na ang ari mo?

A

Naramdaman ko po.

Q Naipasok ba ni Oliver ang ari niya sa ari mo nuong February 4?

A

Opo.

Q Papano mo nasabi na napasok niya yung ari niya sa ari mo?

A

Masakit na po.

Q Masakit ang alin?

A

Ang ari ko po.

Q Lumaban ka ba sa kaniya habang ginagahasa ka niya?

A

Malakas po siya.
xxx

xxx

xxx

Q Hindi ka ginahasa ni Herminigildo nung February 4?

A

Opo.

Q Opo ginahasa o opo hindi?

A

Opo ginahasa po.

Q Ginahasa din?
A

Opo.

Q Sinong nauna, si Oliver o si Herminigildo?

A

Si Lito po ang nauna.

Q Pagkatapos ni Lito si Oliver?

A

Opo.
xxx

xxx

xxx

Q Si Lito o Herminigildo, ni-rape ka ba niya nung February 5, 2001?

A

Opo.

Q Nagtagumpay ba si Oliver sa pag-rape sa iyo nung February 5, 2001?

A

Opo.

Q Paano mo nalaman na nakatapos ng panggagahasa sa iyo?

A

Basa na po ang ari ko.

Q Sinabi mo na ni-rape ka ni Lito nung February 5, 2001, nagtagumpay ba si Lito?

A

Opo.

Q Nakatapos ba siya ng panggagahasa sa iyo?

A

Opo.

Q Pano mo nalaman na nakatapos siya nung February 5, 2001?

A

Basa na po ang ari ko.

Q Pano mo nalaman na basa na ang ari mo?

A

Naramdaman ko po.
xxx

xxx

xxx

Q Dumako tayo sa February 6, 2001. Natatandaan mo ba kung may nangyari sa iyo nung araw na
iyon?
A

Dalawa po kami ni Regina.

Q Ano ang nangyari sa iyo at kay Regina?

A

Rape po.

Q Sino ang nang-rape sa iyo at kay Regina?

A

Si Oliver at si Lito po.

Q Sino ang naunang nang-rape sa iyo nung February 6 si Oliver o si Herminigildo?

A

Si Lito po.

Q Nagtagumpay ba si Herminigildo sa panggagahasa sa iyo nung February 6, 2001?

A

Opo.

Q Nakatapos ba siya?
A

Opo.

Q May damit ka ba o hubad ka nung ginagahasa ka nung February 6, 2001?

A

Wala na po.

Q Sinong nagtanggal sa iyo ng damit?

A

Lito po.

Q Lumaban ka ba sa kaniya habang tinatanggalan ka niya ng damit?

A

Malakas po siya.

Q Matapos kang tanggalan ng damit ni Lito nung February 6, ano ang ginawa niya sa iyo?
A

Pinasok po ang ari niya sa ari ko.

Q Ikaw bay nasa kama o sa sahig, o sang lugar ka ng bahay nandon?

A

Sa kama po.

Q Matapos maipasok ni Lito ang ari niya sa ari mo ano ang naramdaman mo?
A

Masakit po.

Q Nakatapos ba si Lito sa panggagahasa nung February 6, 2001?

Opo.

Q Bakit mo nasabing nakatapos siya?

A

Basa po ang ari ko.

Q Sino ang sumunod na gumahasa sa iyo nung February 6 pagkatapos ni Lito, kung meron man?
A

Si Regina na po.

Q Ang ginahasa?
A

Opo.

Q Nino?
A

Ni Lito.

Q Doon muna tayo sa panggagahasa sa iyo. Nung pagkatapos ni Lito na gahasain ka, meron pa bang
ibang gumahasa sa iyo?
A

Opo.

Q Sinong gumahasa sa iyo matapos kang gahasain ni Lito?

A

Oliver po.

Q Nagtagumpay ba si Oliver ng panggagahasa sa iyo?

A

Opo.

Q Nakatapos ba siya?
A

Opo.

Q Papano mo nalaman na nakatapos si Oliver ng panggagahasa sa iyo?

A

Nabasa po ang ari ko.

Q Lumaban ka ba kay Oliver?

A

Malakas po sila.
xxx

xxx

xxx

Q Dumako tayo sa February 7. Natatandaan mo ba kung may nangyari sa iyo nuong February 7,
2001?
A

Opo.

Q Ano ang nangyari sa iyo nuong February 7, 2001?

A

Ni-rape po kami ni Regina.

Q Sinong nang-rape sa inyo?

A

Oliver at Lito po.

Q Sino ang naunang nang-rape sa iyo nuong February 7, 2001, si Oliver o si Herminigildo?
A

Oliver po.

Q Nakatapos ba siya?

Opo.

Q Paano mo nalaman na nakatapos siya nuong February 7, 2001?

A

Basa na po.

Q Ang alin?
A

Ang ari ko po.

xxx

xxx

xxx

Q Dumako tayo sa February 8. Natatandaan mo ba kung may nangyari sa iyo nuong February 8?
A

Kami po ni Regina.

Q Anong nangyari sa inyong dalawa ni Regina[?]

A

Magdamag po.

Q Magdamag na ano ang nangyari?

A

Rape po.

Q Sinong nang-rape?
A

Si Oliver at si Lito po.

Q Sinong naunang mang-rape sa iyo noong February 8, 2001?

A

Si Oliver po.

Q Nagtagumpay ba si Oliver ng pangre-rape sa iyo noong February 8, 2001?

A

Opo.

Q Nakatapos ba siya?
A

Opo.

Q Papano mo nalaman na nakatapos siya?

A

Basa na po ang ari ko.

xxx

xxx

xxx

Q Dumako tayo sa February 10, 2001. Natatandaan mo ba kung may nangyari sa iyo?
A

Ginagahasa kami ni Regina gabi-gabi.

Q Nino?
A

Yung mga nagbayad po.

Q Ginahasa ka ba ni Oliver nuong February 10, 2001?

A

Opo.

Q Nagtagumpay ba si Oliver sa panggagahasa sa iyo noong February 10?

A

Opo.

Q Nakatapos ba siya?
A

Opo.

Q Saan ka niya ginahasa, sa sahig, sa kama, saan?

A

Sa kama.

Q May damit ka ba nung ginahasa ka ni Oliver?

A

Wala po.

Q Sinong nag-alis sa iyo ng damit nuong February 10?

A

Oliver po.

Q Lumaban ka ba sa kaniya habang inaalisan ka ng damit noong February 10?

A

Malakas po siya.
xxx

xxx

xxx

Q Ginahasa ka ba ni Oliver nuong February 11, 2001?

A

Opo.

Q Nagtagumpay ba si Oliver sa panggagahasa sa iyo noong February 11?

A

Opo.

Q Nakatapos ba siya?
A

Opo.

Q Saan ka niya ginahasa, sa sahig, sa kama, saan?

A

Sa kama po.
xxx

xxx

xxx

Q Anong natatandaan mong nangyari sa iyo noong February 12?

A

Ginagahasa kami ni Regina.

COURT:
Q Ilan ang nang-rape sa inyo nong February 12?
A

Marami po.

Q Noong February 11, 13.

A

Marami po.

Q Noong February 14?

A

Marami rin po.

Q Samakatuwid, yung ginawa sa inyo nuong February 11 ay ginawa rin sa inyo noong February 12,
13 and 14?
A

Opo.

Q Proceed.
FISCAL NAOLA:

Q Nitong February 12, natatandaan mo ba kung doon sa maraming iyon ay kasama si Oliver
Arevalo?
A

Opo.

Q Si Herminigildo o si Lito, kasama ba si Lito sa marami?

A

Opo.
xxx

xxx

xxx

Q Noong February 13, 2001, natatandaan mo ba kung merong nangyari sa iyo?

A

Opo.

Q Sabihin mo nga sa kagalang-galang na Hukom kung ano ang nangyari sa iyo nuong February 13,
2001?
A

Binenta po kami ni Regina.

Q Sino ang nagbenta sa inyo?

A

Si Oliver po.

Q Pero ginahasa ka ba ni Oliver bukod sa taong pinagbentahan niya?

A

Opo.

Q Nagtagumpay ba si Oliver sa panggagahasa sa iyo noong February 13?

A

Opo.

Q Si Lito ginahasa ka ba noong February 13?

A

Opo.

Q Nung matapos kang gahasain ni Oliver, noong February 13, 2001, ang ibig mong sabihin binenta
ka?
A

Opo.[26]

After a painstaking review of the records of the case, we find no cogent reason to disturb the trial courts
findings on the credibility of the witnesses. When in open court they positively identified appellants as their
rapists, the trial court rightly declared:
The Court has closely observed the demeanor of the two complainants and did not find any ill-motive on
their part to impute a serious offense against the two accused. Clearly evident were the trauma, pain,
humiliation and distress on the part of Acu[]a and the state of daze or shock Acosta was in. x x x.[27]
Nevertheless, though appellants are guilty of raping the victims, modifications have to be made regarding
the counts of rape for which each of them should be held liable.
From January 23 to 26, 2001,[28] only Arevalo, not Organista, should be held liable for the rapes of
Acua. A careful review of the records[29] shows that she identified only Arevalo as her rapist on those dates.
For the rapes committed against Acosta on January 23, 25 and 26, 2001,[30] her testimony confirmed that
both appellants had raped her separately.[31] It was not established, however, that Organista had raped her on
January 24, 2001;[32] therefore, only Arevalo should have been convicted for the rape on that date.

Acua, on the other hand, clearly testified[33] that Organista had raped her only on February 14,
2001.[34] She further testified that after raping her, Organista had subsequently raped Acosta.[35] But Acosta
was silent on whether she was raped by Organista on that date. [36] Because she was the best person to say
whether he had raped her on that date, and she was silent on the matter, we resolve the doubt in his favor
and acquit him of the offense that he allegedly committed on that date.
Regarding the other counts of rape, we find no reason to disturb the trial courts findings. For the rape of
Acua, Arevalo is found guilty of simple rape under Criminal Case Nos. 01-419 to 423, 01-425 to 01-428 and
01-430 to 01-441. He is likewise found guilty of the rape of Acosta in Criminal Case Nos. 01-442 to 01-446, 01448 to 01-451 and 01-0453 to 01-464.
On the other hand, for the rape of Acua, Organista is found guilty of simple rape under Criminal Case
Nos. 01-441. He is also found guilty of the rape of Acosta in Criminal Case Nos. 01-442, 01-444 to 01-445 and
01-464.

Criminal Liability
The trial court erred, however, in imposing the penalty of death upon appellants when it appreciated the
circumstance of rape by two or more persons twice -- once as a qualifying, then as an aggravating,
circumstance.
Article 266-B of the Revised Penal Code provides:
ART. 266-B. Penalties. Rape under paragraph 1 of the next preceding article shall be punished by reclusion
perpetua.
Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the penalty
shall be reclusion perpetua to death.
xxx

xxx

x x x.

From the above, whenever the crime committed is simple rape, the penalty to be imposed is the single
penalty of reclusion perpetua. On the other hand, whenever the rape is committed with the use of a deadly
weapon or by two or more persons, the penalty shall be reclusion perpetua to death.
We must note, however, that the Revised Rules of Criminal Procedure, which took effect on December 1,
2000, requires that the complaint or information should state the qualifying and the aggravating
circumstances with specificity.[37] In the present case, no aggravating circumstance was alleged in the
Informations. Hence, the lesser penalty should be applied, as the Court held in People v. Sabredo:[38]
The imposable penalty for rape under Article 335 of the Revised Penal Code, as amended by R.A. No. 7659,
is reclusion perpetua. But where the rape is committed with the use of deadly weapon or by two or more
persons, the imposable penalty ranges from reclusion perpetua to death. The use of the bladed weapon
already qualified the rape. Under Article 63 of the Revised Penal Code, the crucial factor in determining
whether appellant should be meted the death penalty is the presence of an aggravating circumstance which
attended the commission of the crime. A perusal of the records shows that none of the aggravating
circumstances enumerated in Article 14 of the Revised Penal Code was alleged and proven by the
prosecution. Where there is no aggravating circumstance proved in the commission of the offense, the lesser
penalty shall be applied.[39]

Second Issue:
Conspiracy
Appellants contend that conspiracy did not attend the rapes committed from January 23 to 26 and on
February 14, 2001.
This contention is partly meritorious.
Without specifying whether it was referring to Acua or Acosta, the trial court declared that appellants
were in conspiracy in the rapes committed from January 23 to 26 and on February 14, 2001. From the
records, however, it seems that no such conspiracy took place when appellants separately raped Acosta on
those dates. To be appreciated, conspiracy must be shown to have been committed as clearly and
convincingly as the offense itself.[40]

The Rape of Regina Acua

As regards Acua, there was conspiracy only during the rape that occurred on February 14, 2001. We
reiterate that, from the records,[41] her account of the rapes that happened from January 23 to 26, 2001 shows
that only Arevalo, not Organista, raped her. Furthermore, no conspiracy attended the rapes on those dates.
On February 14, 2001, both appellants raped her.[42] It was Arevalo who removed her clothes before
Organista raped her.[43] Moreover, when the latter advanced towards her and she pushed him away, Arevalo -who was standing inside the same room all the while -- kept egging him on by saying, Kaya mo yan pre. The
latter continued until he consummated his bestial attack upon the victim.
We have held that an overt act in furtherance of conspiracy may consist of lending moral assistance to the
co-conspirators even through ones mere presence at the scene of the crime. [44] In the present case (Criminal
Case No. 01-441), Arevalos presence and words encouraged Organista to pursue his savage designs.

The Rape of Ruth Acosta

The records of the rape of Acosta from January 23 to 26 and on February 14, 2001, do not support the
finding of conspiracy.
On January 23, 2001,[45] appellants separately raped her one after the other, but only Arevalo raped her
on January 24, 2001.[46] On January 25[47] and 26,[48] appellants again separately raped her one after the other,
but it was only Arevalo who raped her on February 14, 2001.[49]

Third Issue:
Insanity
Organista argues that the trial court erred in not exempting him from criminal liability, even though he
was insane or completely deprived of intelligence during the commission of the rapes. He avers that his
insanity may be deduced from the following:

First, he cannot remember the events that transpired from January 23 to February 14, 2001, because the
treatments he has been undergoing at the National Center for Mental Health since 1983 have weakened his
memory.
Second, Dr. Pia Alma de Jesus of the National Center for Mental Health testified that he had displayed
psychotic symptoms like hallucinations and delusions. She opined that his failure to take his medications
regularly could have caused his relapse.
Third, the behavior and actuations he exhibited before and after the rapes were manifestations of mental
instability. As testified to by his mother, he was violent and destructive to the extent of habitually setting their
home furniture on fire. He even threatened to kill her when she confronted him on his behavior.
Fourth, the New Bilibid Prison, where he is presently locked up, certified that he still suffers from chronic
schizophrenia.
We are not persuaded.
The law presumes everyone to be sane.[50] The accused who pleads the exempting circumstance of
insanity incurs the burden of proving it.[51] To be adjudged insane under Article 12 of the Revised Penal Code,
he or she must have been completely deprived of reason or discernment and freedom of the will at the time
the crime was committed.[52] For such deprivation to be ascertained, it is but proper to receive evidence
during a reasonable period before or after the commission of the crime, for the mind -- its thoughts, motives
and emotions -- may be fathomed only by examining whether the external acts conform with those of people
of sound minds.[53]
In the present case, while Organista had indeed been confined at the National Center for Mental Health
for treatment, it does not necessarily follow that he still suffered from schizophrenia during the period of the
rapes. No convincing evidence was presented by the defense to show that he had not been in his right mind,
or that he had acted under the influence of a sudden attack of insanity, or that he had generally been
regarded as insane around the time of the commission of the acts attributed to him. Well-settled is the rule
that an inquiry into the mental state of the accused should relate to the period immediately before or at the
very moment the act under prosecution was committed.[54] Mere prior confinement in a mental institution
does not prove that the perpetrator was deprived of reason at the time the crimes were committed. [55]
It must be noted that Organista had been discharged from the mental hospital well before the period of
the rapes. We have held that if the insanity is only occasional or intermittent, the presumption of its
continuance does not arise.[56] One who relies on insanity proved at another time must prove its existence also
at the time of the commission of the offense.[57]
To prove his claimed insanity, Organista presented, as an expert witness on his mental condition, Dr. Pia
Alma S. de Jesus of the National Center for Mental Health. It is important to note that she only began treating
him beginning April 2001, or two months after the rape incidents, [58] upon orders of the trial court. Referring
to hospital records, she narrated that he had been mentally ill since 1982 or 1983 and had been admitted to
the Center a total of 23 times.[59] Prior to the rapes, his last confinement had been from October 27 to
December 1, 1997,[60] again for schizophrenia. Likewise noteworthy is the fact that this period covering his
last admission and discharge prior to the rapes was outside that of the commission thereof -- January 23 to
February 14, 2001. Dr. De Jesus further testified that Organista had already been considered treated on the
date of his discharge in 1997.[61]Though she opined that a patient who did not continue to take medications
could suffer a relapse, she did not categorically state whether Organista had suffered such a relapse before
the commissions of the rape.
On the other hand, the prosecution has sufficiently established that Organista knew exactly what he was
doing. His going to the house of Arevalo and either directly or indispensably cooperating with him -- day after

day to ravish the victims -- could not have been the act of one so insane as to be incapable of entertaining a
criminal intent. On February 14, 2001, specifically, Organista continued to ravish Acua after being coaxed by
Arevalo, Kaya mo yan pre.[62] That Organista persisted in the act all the way to its consummation leaves no
doubt that it was voluntary, conscious and deliberate. Moreover, his attempt to flee when the police officers
came to arrest him shows that he knew that what he had done was condemnable.
Furthermore, Organistas claimed amnesia does not preclude culpability. This charade is evidently a
desperate ploy for exculpation. Failure to remember does not in itself prove the existence of such mental
condition at the time the crime was committed.[63]
The testimony of Organista himself militates against his credibility and puts his purported amnesia into
serious question. During trial, he said that he could not remember where he had been from January 23 to 26,
2001. Surprisingly, he could remember perfectly well the number of times he had been treated at the
National Center for Mental Health since 1983, what procedure he had gone through each time he was treated,
the kind of medicine he had been given, the number of times Appellant Arevalo had borrowed money from
him without paying, the total amount of money he had lent the former, and the resentment the latter had
often felt whenever his friend would not repay him. Moreover, he could narrate in complete detail his
fabricated story of how he had allegedly met the victims on February 14, 2001, and lent them money only to
be later arrested for rape.[64] The prosecution aptly point out that his selective amnesia and mental dishonesty
speak eloquently of his total lack of credibility on the witness stand.
Finally, Organista is not entitled to the mitigating circumstance under Article 13(9) of the Revised Penal
Code, because it was not shown that his mental illness at the time immediately preceding or at the very
moment of the commission of the crime diminished his will power.

Civil Liability
The trial courts award of damages should be modified. Prevailing jurisprudence holds that for each count
of simple rape, the victim should be awarded P50,000 as civil indemnity and another P50,000 as moral
damages for the injury evidently suffered.[65] This Court has granted moral damages to victims of rape without
need of proof other than the fact of rape, which by itself shows the factual basis for the award. [66] The award
of P100,000 to each of the victims by way of exemplary damages should be deleted, because no aggravating
circumstance was proven.
WHEREFORE, the October 26, 2001 Decision of the Regional Trial Court of Makati City (Branch 62), finding
appellants guilty of qualified rape, is MODIFIED.
The Court finds Oliver Arevalo y Abanilla Jr. GUILTY beyond reasonable doubt of SIMPLE RAPE. He is
sentenced to suffer the penalty of reclusion perpetua for each count of rape in Criminal Case Nos. 01-419 to
01-423, 01-425 to 01-428, 01-430 to 01-446, 01-448 to 01-451 and 01-453 to 01-464. Furthermore, he is
hereby ordered to pay the following:
1. To Regina Acua, the amount of P50,000 as civil indemnity and P50,000 as moral damages for each
count of rape in Criminal Case Nos. 01-419 to 01-423, 01-425 to 01-428, and 01-430 to 01-441
2. To Ruth Acosta, the amount of P50,000 as civil indemnity and P50,000 as moral damages for each
count of rape in Criminal Case Nos. 01-442 to 01-446, 01-448 to 01-451 and 01-453 to 01-464
Herminigildo Organista y Andres is found GUILTY beyond reasonable doubt of SIMPLE RAPE and is
sentenced to suffer the penalty of reclusion perpetua for each count of rape in Criminal Case Nos. 01-441 to
01-442 and 01-444 to 01-445. He is likewise ordered to pay the following:

1. To Regina Acua the amount of P50,000 as civil indemnity and P50,000 as moral damages for each
count of rape in Criminal Case No. 01-441
2. To Ruth Acosta, the amount of P50,000 as civil indemnity and P50,000 by way of moral damages for
each count of rape in Criminal Case Nos. 01-442, 01-444 and 01-445
With respect to Criminal Case No. 01-441, both appellants are found guilty of two (2) counts of rape, for
which the penalty of reclusion perpetua for each count is meted out to them.
Finally, Herminigildo Organista y Andres is ACQUITTED in Criminal Case Nos. 01-419 to 01-422 and 01-443
and 01-464.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez,
Corona, Carpio-Morales, Callejo Sr., and Tinga, JJ., concur.
Azcuna, J., on official leave official business.

[1]

Rollo, pp. 67-77. Written by Judge Roberto C. Diokno.

[2]

RTC Decision, pp. 10-11; rollo, pp. 76-77.

[3]

Not 45 as stated in the assailed October 26, 2001 Decision as well as the March 19, 2001 Order. All the
Informations were signed by Assistant City Prosecutor Nora C. Sibucao.

[4]

Information dated February 16, 2001; rollo, p. 6.

[5]

Rollo, pp. 7-28.

[6]

Information dated February 16, 2001; rollo, p. 29.

[7]

Rollo, pp. 30-51.

[8]

See Orders dated March 19, 2001; records, pp. 119-120.

[9]

Atty. Rainald Paggao.

[10]

Appellees Brief, pp. 5-25; rollo, pp. 174-194. Signed by Solicitor General Alfredo L. Benipayo, Assistant
Solicitor General Amparo M. Cabotaje-Tang and Associate Solicitor Derek Anthony P. Lim.

[11]

Appellants Brief, pp. 21-22; rollo, pp. 120-121. Signed by Attys. Amelia C Garchitorena, Elpidio C. Bacuyag
and Ma. Vanessa B. Donato-Balmaceda of the Public Attorneys Office (PAO).

[12]

This case was deemed submitted for decision on March 25, 2003, upon receipt by this Court of appellants
Manifestation in Lieu of Reply Brief filed by Atty. Ma. Vanessa B. Donato-Balmaceda of PAO. Earlier,
appellants Brief was received by this Court on August 27, 2002, while appellees Brief was submitted
on February 4, 2003.

[13]

Appellants Brief, pp. 1-2; rollo, pp. 100-101. Original in upper case.

[14]

ART. 13. Mitigating circumstances The following are mitigating circumstances:

xxx

xxx

xxx

9. Such illness of the offender as would diminish the exercise of the will-power of the offender without
however depriving him of consciousness of his acts.

[15]

People v. Lachica, 382 SCRA 162, May 9, 2002; People v. Lozano, 371 SCRA 546, December 7, 2001.

[16]

People v. Palaa, 379 SCRA 553, March 20, 2002.

[17]

People v. Lachica, supra; People v. Cana, 381 SCRA 435, April 22, 2002.

[18]

TSN, August 30, 2001, pp. 3, 6-9 & 21.

[19]

Id., p. 22.

[20]

People v. Baldosa, 381 SCRA 712, May 7, 2002; People v. Santos, 380 SCRA 608, April 11, 2002; People v.
Viernes, 372 SCRA 231, December 13, 2001.

[21]

People v. Santos, supra; People v. Viernes, supra.

[22]

People v. Baluya, 380 SCRA 532, April 11, 2002; People v. Daramay Jr., 382 SCRA 119, May 9, 2002.

[23]

TSN, August 6, 2001, pp. 12-24.

[24]

TSN, August 8, 2001, pp. 3-16.

[25]

TSN, August 13, 2001, pp. 2-25.

[26]

TSN, August 17, 2001, pp. 3-50.

[27]

RTC Decision, p. 8; rollo, p. 74.

[28]

Covered under Criminal Case Nos. 01-419 to 01-422.

[29]

TSN, August 6, 2001, pp. 12-24; TSN, August 8, 2001, pp. 2-14.

[30]

Covered under Criminal Case Nos. 01-442, 01-444 and 01-445.

[31]

TSN, August 17, 2001, pp. 5-12.

[32]

Covered under Criminal Case No. 01-443.

[33]

TSN, August 8, 2001, p. 9.

[34]

Covered under Criminal Case No. 01-441.

[35]

TSN, August 13, 2001, p. 25.

[36]

Covered under Criminal Case No. 01-464.

[37]

Section 8 of Rule 110 reads:

SEC. 8. Designation of the offense. The complaint or information shall state the designation of the offense
given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and
aggravating circumstances. If there is no designation of the offense, reference shall be made to the
section or subsection of the statute punishing it.
[38]

331 SCRA 682, May 11, 2000.

[39]

Id., p. 691, per Quisumbing, J.

[40]

People v. Aquino, 366 SCRA 266, September 28, 2001; People v. Listerio, 335 SCRA 40, July 5, 2000.

[41]

See TSN, August 6, 2001, pp. 12-25, for the rapes committed on January 23-24, 2001; TSN, August 8, 2001,
pp. 2-3, 8, for the rape committed on January 25, 2001; TSN, August 8, 2001, pp. 11-14, for the rape
committed on January 26, 2001.

[42]

TSN, August 15, 2001, pp. 21-26.

[43]

TSN, August 13, 2001, p. 22.

[44]

People v. Arofo, 380 SCRA 663, April 11, 2002.

[45]

TSN, August 17, 2001, pp. 6-7.

[46]

Id., pp. 7-8.

[47]

Id., pp. 9-10.

[48]

Id., pp. 10-11.

[49]

Id., p. 48.

[50]

People v. Condino, 369 SCRA 325, November 19, 2001; People v. Mengote, 364 Phil. 874, March 25,
1999; People v. Tabugoca, 349 Phil. 236, January 28, 1998.

[51]

Ibid.

[52]

People v. Legaspi, 357 SCRA 234, April 20, 2001; People v. Austria, 328 Phil. 1208, July 31, 1996.

[53]

People v. Austria, supra.

[54]

Ibid., People v. Condino, supra.

[55]

People v. Legaspi, supra.

[56]

Ibid.

[57]

Ibid.

[58]

TSN, September 10, 2001, p. 5.

[59]

Ibid.

[60]

Id., p. 12.

[61]

Id., p. 6.

[62]

TSN, August 13, 2001, p. 22.

[63]

People v. Tabugoca, supra.

[64]

TSN, September 3, 2001, pp. 50-75.

[65]

People v. Legaspi, supra; People v. Rodriguez, 376 SCRA 408, February 6, 2002; People v. Garcia, 381 SCRA
722, May 7, 2002.

[66]

People v. Arofo, supra; People v. Cana, 381 SCRA 435, April 22, 2002; People v. Lachica, 382 SCRA 162, May
9, 2002.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 46539

September 27, 1939

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
VALENTIN DOQUEA, defendant-appellant.
Primicias, Abad, Mencias and Castillo for appellant.
Assistant Solicitor-General Concepcion and Assistant Attorney Paredes, Jr., for appellee.
DIAZ, J.:
The accused-appellant, who is a minor, was prosecuted for homicide in the Court of First Instance of
Pangasinan, for having killed Juan Ragojos by stabbing him in the breast with a knife on November 19, 1938, in
the municipality of Sual, Pangasinan. The court, after trying the case, held that the accused acted with
discernment in committing the act imputed to him and, proceeding in accordance with the provisions of
article 80 of the Revised Penal Code, as amended by Commonwealth Act No. 99, ordered him to be sent to the
Training School for Boys to remain therein until he reaches the age of majority. From this order the accused
interposed an appeal alleging that the court erred in holding that he had acted with discernment and in not
having dismissal the case.
On the date of the crime, the appellant was exactly thirteen years, nine months and five days old. The incident
that gave rise to the aggression committed by him on the deceased is narrated in the appealed order as
follows:
Between 1 and 2 o'clock in the afternoon of November 19, 1938, the now deceased Juan Ragojos and
one Epifanio Rarang were playing volleyball in the yard of the intermediate school of the municipality
of Sual, Province of Pangasinan. The herein accused, who was also in said yard, intervened and,
catching the ball, tossed it at Juan Ragojos, hitting him on the stomach. For this act of the accused,
Juan Ragojos chased him around the yard and, upon overtaking him, slapped him on the nape. Said
accused then turned against the deceased assuming a threatening attitude, for which the reason said
deceased struck him on the mouth with his fist, returning immediately to the place where Epifanio
Rarang was in order to continue playing with him. The accused, offended by what he considered an
abuse on the part of Juan Ragojos, who was taller and more robust than he, looked around the yard for
a stone with which to attack the now deceased Juan Ragojos, but finding none, he approached a cousin
of his named Romualdo Cocal, to ask the latter to lend him his knife. Epifanio Rarang, who had heard
what the accused had been asking his cousin, told the latter not to give the accused his knife because
he might attack Juan Ragojos with it. The accused, however, succeeded in taking possession of the
knife which was in a pocket of his cousin's pants. Once in possession of the knife, Valentin Doquea
approached Juan Ragojos and challenged the latter to give him another blow with his fist, to which the
deceased answered that he did not want to do so because he (Juan Ragojos) was bigger that the
accused. Juan Ragojos, ignorant of the intentions of the accused, continued playing and, while he was
thus unprepared and in the act of stopping the ball with his two hands, the accused stabbed him in the
chest with the knife which he carried.

The order also contains the following conclusions and findings of fact which we are not at liberty to alter, not
being called upon or authorized to do so, in view of the nature of the appeal before us, by section 138 of the
Administrative Code, as amended by Commonwealth Act No. 3:
Taking into account the fact that when the accused Valentin Doquea committed the crime in
question, he was a 7th grade pupil in the intermediate school of the municipality of Sual, Pangasinan,
and as such pupil, he was one of the brightest in said school and was a captain of a company of the
cadet corps thereof, and during the time he was studying therein he always obtained excellent marks,
this court is convinced that the accused, in committing the crime, acted with discernment and was
conscious of the nature and consequences of his act, and so also has this court observed at the time
said accused was testifying in his behalf during the trial of this case.
The proven facts, as stated by the lower court in the appealed order, convinces us that the appeal taken from
said order is absolutely unfounded, because it is error to determine discernment by the means resorted to by
the attorney for the defense, as discussed by him in his brief. He claims that to determine whether or not a
minor acted with discernment, we must take into consideration not only the facts and circumstances which
gave rise to the act committed by the minor, but also his state of mind at the time the crime was committed,
the time he might have had at his disposal for the purpose of meditating on the consequences of his act, and
the degree of reasoning he could have had at that moment. It is clear that the attorney for the defense
mistakes the discernment referred to in article 12, subsection 3, of the Revised Penal Code, for premeditation,
or at least for lack of intention which, as a mitigating circumstance, is included among other mitigating
circumstances in article 13 of said Code. The discernment that constitutes an exception to the exemption from
criminal liability of a minor under fifteen years of age but over nine, who commits an act prohibited by law, is
his mental capacity to understand the difference between right and wrong, and such capacity may be known
and should be determined by taking into consideration all the facts and circumstances afforded by the records
in each case, the very appearance, the very attitude, the very comportment and behaviour of said minor, not
only before and during the commission of the act, but also after and even during the trial (U.S. vs. Maralit, 36
Phil., 155). This was done by the trial court, and the conclusion arrived at by it is correct.
Wherefore, the appealed order is affirmed, with the costs to the appellant. So ordered.
Avancea, C.J., Villa-Real, Imperial, Laurel, and Concepcion, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-482

February 25, 1947

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BIENVENIDO NOCUM, defendant-appellant.
Severino P. Izon for appellant.
Assistant Solicitor General Kapunan, Jr. and Solicitor Umali for appellee.
BENGZON, J.:
For having discharged a gun and accidentally killed Eugenio Francisco, the defendant Bienvenido
Nocum, aliasBembe, was tried in the Court of First Instance Manila, before the Honorable Alfonso Felix, judge.
Found guilty of homicide through reckless negligence, he appealed in due course.
According to the evidence, about 9 o'clock in the evening of November 21, 1945, there was a fistic fight
between Federico Bautista and Vicente Aurencio at the corner of Mayhaligue and Magdalena Streets, City of
Manila. Desiring to stop the encounter, defendant shouted at the combatants. As these paid him no attention,
he drew a .45 caliber pistol and shot twice at the air. The bout continued, however; so he fired another shot at
the ground, but unfortunately the bullet ricocheted and hit Eugenio Francisco, an innocent by-stander,
resident of the place. The wounded man was promptly carried to the St. Luke's Hospital where he expired
soon after.
The above paragraph is a composite and abridged statement of the declarations of several witnesses (Jesus
Santos, Vicente and Juan Aurencio and Ramon Gagui) in connection with defendant's confession Exhibit F. 1 But
his attorney, assailing the validity of said confession in the ground of involuntariness, contends in this Court
that in asmuch as the corpus delicti had not been demonstrated by evidence dehors that document, his client
should be absolved, pursuant to several pertinent decisions. (United States vs. De la Cruz, 2 Phil., 148; and
People vs. Bantagan, 54 Phil., 834.) Particular attention has been given to these points. Yet there is competent
proof establishing the fact that, during the affray, pistol detonations were heard, and that one of the bullets
produced the tragic death of Eugenio Francisco, whose photograph is Exhibit B. That is proof of the corpus
delicti, i. e.,proof of violent death, whether or not feloniously caused. (See Moran, Law of Evidence, Revised
Edition, pp. 108, 109; People vs. Mones, 58 Phil., 46.) The confession Exhibit F served to identify the person
who fired those shots and committed the offense.
We feel no inclination to reject such confession, because the uncorroborated and implausible testimony of the
accused, alleging he had been manhandled before signing this document, about which he knew nothing, could
not definitely overcome the positive assertions of Pablo Montilla of the Manila Police Department (before
whom Exhibit F had been executed) that no force or intimidation had been employed on Nocum, who willingly
signed it "after propounding to him all the questions and explaining to him the contents" thereof. The
impartiality of that officer of the law has not been shaken by the lone testimony of herein appellant, which, as
explained in the People's brief, deserves no credence. Nocum said in court that he signed Exhibit F when
Montilla told him "it was simply a proof that they arrested me" (p. 27, t.s.n.). This is inconsistent with the

alleged third-degree methods. If he was forced, deceit was unneccessary. And yet, he could not be deceived
thusly, because he was no illiterate, being seventh grader.
Anyway, the trial judge had the chance to see the opposing witnesses, and to observe their demeanor on the
stand; and in the conflict of their statements we will not interfere with his judgment, unless the record
discloses some important circumstance which was overlooked, (United States vs. Remigio, 37 Phil., 599;
United States vs. Maralit, 36 Phil., 155), it being the peculiar province of trial courts to resolve questions
relating to the credibility of witnesses. (United States vs. Pico, 15 Phil., 549.)
The mishap should be classed as homicide through reckless imprudence, the slaying having been unintentional
(cf. People vs. Sara, 55 Phil., 939; and United States vs. Reodique, 32 Phil., 458). It is apparent the defendant
wilfully discharged his gun for which he exhibited no license, by the way without taking the precautions
demanded by the circumstance that the district was populated, and the likehood that his bullet would glance
over the hard pavement of the Manila thoroughfare.
A landowner surprise a youngster in the act of stealing some fruit in his orchard. To scare the intruder he fired
a shotgun aiming at the foliage of a cherry tree. The shot scattered and a pellet injured the boy, who was
standing under the tree. That was reckless negligence, the Spanish Supreme Court decided. (Sent. June 20,
1900, Viada, 5th ed., Vol. 7, p. 14.)
The penalty imposed on the appellant is 2 months and 1 day to 1 year and 1 day, indemnity of P2,000 with
subsidiary imprisonment, and costs. It is within the limits authorized by law. (Article 365, Rev. Penal Code, and
Act No. 4103.) (Act No. 284.)
Wherefore, the appealed judgment is affirmed, with costs against appellant.
Moran, C.J., Feria, Pablo, Hilado, Briones, Hontiveros, Padilla and Tuason, JJ., concur.

Separate Opinions
PERFECTO, J., dissenting:
Appellant is indicted for homicide committed on November 21, 1945, which caused the death of Eugenio
Francisco. The lower court sentenced him to from two months and one day of arresto mayor to one year and
one day of prision correccional, to indemnify the heirs of Eugenio Francisco in the sum of P2,000 and to suffer
the corresponding subsidiary imprisonment in case of insolvency, and to pay the costs.
The lower court found appellant guilty of homicide through reckless imprudence, upon the prosecution's
theory, stated in the appealed decision as follows: "On November 21, 1945, at about 9 o'clock in the evening,
and at the corner of Mayhaligue and Magdalena Streets in the District of Sta. Cruz of this City of Manila, a
quarrel developed between Vicente Aurencio and Federico Bautista in which other gangsters intervened. On
that occasion defendant Bienvenido Nocum, one of the members of the gang, desiring to stop the fight,
shouted at the combatants in vain; so he decided to discharge his revolver twice in the air, but seeing that
even this recourse was not taken heed of by his quarrelling friends, he fired another shot to the ground which
unfortunately ricocheted and hit a passer-by named Eugenio Francisco. The wounded man was taken to the
hospital where he expired soon after his arrival therein."

These pronouncement of the lower court are not supported by the evidence. They are based on fantasy.
The prosecution called five witnesses to testify and presented two exhibits as evidence.
Pablo Montilla has no personal knowledge of the incident, because he arrived at the place about thirty
minutes after the incident was over. His testimony, notwithstanding, tends to show alleged admissions of
appellant during the investigation and about the voluntariness of appellant's written statement Exhibit F. Jesus
Santos, another police officer, has no personal knowledge as to how the deceased Eugenio Francisco was shot,
because when he arrived at the place he saw the deceased being held and attended inside the store where
the witness was told that somebody was shot. Ramon Gagui, testified that he never had seen Bienvenido
Nocum, although he was present during the incident in which Federico Bautista and Vicente Aurencio had
been fighting and he heard shots during the fight. Vicente Aurencio and Juan Aurencio did not testify anything
against Nocum. They have not seen him at the place of the incident. They do not know him. The two exhibits
of the prosecution which were admitted are Exhibit B, which is a photograph of the deceased, and Exhibit F,
which is the written statement attributed to appellant.
Appellant, a laborer, 22 years of age, sixth grade, testified that he had never seen the deceased and denied
having been at the place of the incident on November 21, 1945, because at that time he was in the province
where he had been since September. When he signed Exhibit F, he was not asked by Pablo Montilla questions
regarding the killing of Eugenio Francisco. Appellant did not see Exhibit F being typewritten. He denied having
been asked by Montilla the questions appearing in the statement and having given the answer attributed to
him. He never possessed any revolver, be it .45 caliber or any other caliber. Exhibit F was not read or
translated in Tagalog to the appellant, who was told to sign it simply as a proof that he was arrested. Appellant
was not given the opportunity to read the document. "This statement was rolled in such a way that I could not
see the contents; and before I was asked to sign it the policeman hurt me," pointing to Pablo Montilla as the
one who hurt him. Explaining why he appeared in court wearing torn dress, appellant said: "Because when he
boxed me in the stomach I turned towards the right, and he held me by the right arm." The witness was
wearing the same suit when he was compelled to sign Exhibit F. "Afterwards two of his companions arrived,
bringing pieces of wet cloth. They tied them in my neck and, after tying them, they folded their sides and I did
not know what happened to me afterwards," that is, the witness became unconscious "and I fell to the
ground." Only after the lapse of some time, when appellant recovered consciousness, when he was to sign
Exhibit F. Exhibit F appears to have been signed on March 12, 1946, nearly four months after the shooting of
Eugenio Francisco, and about one month after appellant had been arrested on February 14, 1946.
Appellant's testimony as to the torture he underwent before he was made to sign Exhibit F has never been
rebutted by the prosecution. Although police officer Pablo Montilla was present in the court room at the time
appellant testified as to his torture, so much so as he pointed to Montilla as one of the three police officers
who boxed him and tortured him with wet cloth, until the accused lost consciousness and fell down, said
Montilla did not dare to contradict appellant's testimony. The testimony remains unchallenged and should be
given its full value.
We are not willing to lend our support to a sentence convicting a man of a crime and sending him to prison
upon the involuntary evidence of an alleged confession extracted from him by torture. It would simply be
iniquitous. All words of condemnation against the third degree methods are not enough to paint in all its
ugliness the practice compelling a person to sign an involuntary confession through physical sufferings. We
should eradicate completely, once and for all, all traces which symbolize the kempei methods at Fort
Bonifacio, zoning camps, and other torture chambers operated by the sadistic Nippon regime.

The second paragraph of the majority opinion, wherein it appears that appellant fired a bullet which
ricocheted and hit Eugenio Francisco, is represented by the majority as a composite and abridged statement
of the declarations of witnesses Jesus Santos, Vicente Aurencio, Juan Aurencio, and Ramon Gagui. We regret
to disagree. There is absolutely nothing in the declaration of the said persons to show that appellant was
present in the place where the incident took place, much less that he fired any shot at all. It seems to us
beyond all understanding how the majority were able to read in the declarations of said witnesses what no
one will be able to find therein. No one should be convicted on what can be imagined appearing in the
testimonies of witnesses but which, as a matter of fact, does not appear in them. An accused must be
convicted on the strength of actual evidence; never on the hazy creatures of our imaginations. We have read
and re-read the declarations of the four witnesses mentioned in the majority decision, but we were unable to
find any support to the majority position. No one even mentioned the name of appellant Nocum and, as to
Vicente Aurencio, Juan Aurencio and Ramon Gagui, notwithstanding the leading questions propounded by the
fiscal they stated categorically that they had not seen Bienvenido Nocum and that they do not even know him.
Vicente Aurencio testified:
"Q. El acusado Bienvenido Nocum estaba alli en aquella ocasion? A. No setaba alli; no le conozo. Con mayor
razon no estaba. No le conozco a ese."
Juan Aurencio testified equally that "no recuerdo que este acusado Nocum fuera companero de ellos." Asked
if he knows Bienvenido Nocum, he answered, "No seor." Asked if he saw him on the occasion of the incident
he answered, "No senor." Concerning the shots fired he said: "Yo oi una detonacion pero no se quien disparo."
In the whole testimony of Jesus Santos there is absolutely no mention of Nocum.
As to the alleged confession Exhibit F of appellant, because appellant testified that he was told "that it was
simply a proof that they arrested me," the majority would not believe that appellant's signature in the
document was obtained by third degree methods, upon the novel theory of inconsistency of deceit and force
or torture as means to extract involuntary confessions or admissions. Such naive proposition shows lack of
sense of reality. There is absolutely no incompatibility in the use of deceit and torture to secure involuntary
admissions or confessions. As a matter of fact they are complementary, and in many cases they have been
simultaneously used.
The majority do not accept that appellant could have been deceived, "because he was no illiterate, being a
seventh grader." In the first place, literacy has never been an absolute guarantee against deceit. There is no
kind, grade or measure of culture which can be considered absolutely deceit-proof.
We vote to reverse the appealed decision and for the acquittal of appellant.
Paras, J., concurs.
Footnotes
1

Nocum said: "In my efforts to pacify them I shouted at them to quit fighting but they did not give
heed. I then took hold of my .45 caliber pistol and fired two shots into the air, but still they continued
fighting. I then fired another more shot into the ground, without any intention of hitting anybody, but
accidentally it hit Eugenio Francisco who was standing on the other side of the street." (Exhibit F.)

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. L-24781 May 29, 1970

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CARLOS FERNANDO alias COMMANDER "BOB," defendant-appellant.
Maximo V. Cuesta, J and Cipriano Manansala for defendant appellant.
Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Antonio A. Torres and Solicitor
Teodulo R. Dino for plaintiff-appellee.

TEEHANKEE, J.:
Appeal from the sentence of reclusion perpetua imposed by the trial court on the accused-appellant for the
crime of murder.
The accused was charged with the crime of murder before the Court of First Instance of Tarlac under the
following information:
That on or about March 30, 1961, at nighttime, in the Municipality of Bamban, Province of
Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, Carlos Fernando alias "Bob," together with Francisco Ronquillo alias Commander
"Manly," (Deceased) and Mario Salonga (at large), confederating, conspiring and helping one
another, with malice aforethought and the deliberate intent to take the life of Bienvenido
Laxamana, did then and there willfully, unlawfully, feloniously and treacherously attack the
latter with pistols caliber 45, thereby inflicting upon the said Bienvenido Laxamana, mortal
wounds on different parts of his body which directly caused his instantaneous death.
After trial, the trial court found the accused guilty as charged, on the strength of his two confessions,
consisting of his 4-page written sworn statement taken on June 16, 1961 by Capt. Pedro Acierto of the First
Philippine Constabulary Zone, 1 soon after his capture on June 12, 1961 in an encounter in Barrio Balibago
between Dau and Mabalacat, Pampanga, between PC troops and Huks led by HMB Commander Francisco
Ronquillo alias Commander Manly who was killed, and his 3-page testimony at the preliminary examination of
the criminal complaint for murder conducted on July 19, 1961 by Judge Pompeyo S. Tiglao of the Municipal
Court of Bamban, Tarlac, 2 as well as of his own testimony at the hearing of March 11, 1965 as the lone
defense witness on his own behalf, at which he, freely admitted his participation in the murder. 3
The trial court found the facts as follows: "(O) n the evening of March 30, 1961, at about 7:00 o'clock,
Bienvenido Laxamana was inside a store of one Honoria Atienza next to his house on the same side of the

street in the poblacion of Bamban, Tarlac. He was then, sitting and eating peanuts. While in that position,
Mario Salonga alias 'Manding,' who is still at large, and the accused Carlos Fernando alias 'Bob,' without any
warning, suddenly and unexpectedly fired shots with their .45 caliber pistols at Laxamana. The duo then
departed, leaving their victim sprawled outside the store.
Salonga and Fernando were members of the Hukbalahap Organization. Before going to
Bamban, Tarlac, on the evening of the incident, they were somewhere within the jurisdiction of
Angeles City where they received instruction from one of their commanders, Francisco
Ronquillo alias Commander Manly,' to liquidate Laxamana. The motive was that the latter,
while an officer of the civilian guards, had ordered the killing of a relative of Commander
"Manly" and the beating up of the father of Salonga. Fernando and Salonga went to Bamban
from Angeles City by walking all along between sugar cane field. After the killing of Laxamana,
they also decamped together the same route.
The victim, Bienvenido Laxamana, was married to Remedios L. Laxamana. Two daughters were
born out of their wedlock, the elder of whom is 13 years old. Before his death, Laxamana was a
member of the Central Azucareras de Tarlac Planters' Association of that province. When his
brother-in-law, the late Sinforoso Lomboy, was the Municipal Mayor of Bamban sometime in
1950, he became a member of the civilian guards or the Civilian Commando Unit (CCU) in that
town with the rank of captain.
That evening of March 30, 1961, Mrs. Laxamana came from the Catholic church of Bamban with
her elder daughter, Bernadette. While on her way home and when the distance from her house
was about thirty meters, she heard the firing of shots. She took cover in one stores; and after
the firing had ceased, she went out and hurriedly proceeded to her home. In front of the store
of Honoria Atienza she saw her husband sprawled on the ground full of blood. She was not able
to come close to him because somebody held her back. A jeep arrived where her husband was
placed but not long thereafter he was brought back already dead.
Dr. Honorato Navarro, municipal health officer of Bamban Tarlac, made the autopsy of the victim's cadaver or
the same night of the murder, and per his necropsy report, 4 the victim cited of "hemorrhage, massive,
secondary to GUNSHOT WOUNDS, multiple (23) in neck, chest, and back, lumbar region, and upper and lower
extremities," many of which were mortal wounds hitting vital organs in the neck such as the carotid artery and
the vagus nerve, both lungs and the liver, kidneys and intestines in the lumber region.
The trial court rejected the accused's testimony at the trial that he did not fire any shot at the victim but
merely stood guard outside the store, and that his role, after Salonga had ceased firing at the victim was to fire
three shots in the air as a signal for them to depart, thus: "(T)he Court entertains a very serious doubt on the
veracity of the above-mentioned statement of the accused because the same is contrary to what he stated
when he was first investigated by the P.C. after his apprehension. Portion of his written statement (Exh. F-1)
reads as follows:
12. T Natupad ba naman ninyo ang iniutos ni Comdr. FRANCISCO RONQUILLO
na patayin si BIENVENIDO LAXAMANA?
S Opo napatay namin sa pamamagitan ng pagbaril sa kanya nuong gabing iyon
ng ika-30 ng Marzo, 1961.
13. T Anong clase ng baril ang inyong ginamit sa pagpatay kay LAXAMANA?

S Pareho po kaming gumamit ng Pistola calibre 45. Si MARIO SALONGA alias

MANDING na aking kasama ay nakapagpaputok ng humigit kumulang sa labingdalawa at ako naman ay tatlong putok.
14. T Sinabi mong natupad ninyo ang utos ni Comdr. FRANCISCO RONQUILLO
alias Commander MANLY, na patayin si Bienvenido Laxamana, natatandaan mo
ba kung saan lugar ninyo binaril at pinatay ang taong naturan?
S Duon po sa loob ng isang tindahan sa Poblacion, Bamban, Tarlac, na ang
may-ari sa naturang tindahan ay hindi ko kilala.
The answer of the accused to the above-quoted question No. 13 to the effect that he and
Salonga both used .45 caliber pistols in killing Laxamana, with Salonga firing twelve shots and
he, three shots, conveys no other idea, than that the three shots he fired were directed at the
victim and not upwards into the air. The Court is inclined to believe that this statement is the
one in keeping with the truth, taking into consideration the determination of the accused to
participate in the killing of Laxamana and the number of gunshot wounds found on the latter's
body.
At any rate, the trial court further held, there was no doubt as to the existence of conspiracy between the
accused and Salonga, as the accused actively participated in the criminal design of Salonga and acted in
concert with him, granting arguendo that the accused merely stood guard for Salonga and that Salonga alone
inflicted the 23 gunshot wounds on the victim.
The trial court likewise rejected the accused's contention that he should be punished only for the crime of
rebellion as the murder was in pursuance of the Huks rebellion movement, since the motive for the killing of
the victim was personal, to avenge the alleged killing of a relative of Commander Manly and the alleged
maltreatment of the father of Salonga, supposedly ordered by the victim. The trial court further pointed out
that while the victim had been an officer of the civilian guards in Bamban, that was more than ten years ago in
1950, and the victim was an ordinary civilian when he was shot in cold blood.
The trial court found that "(F)rom the testimony of the accused himself on the witness stand, it clearly appears
that the firing of the shots which snuffed out the life of Laxamana was sudden and unexpected, without any
risk to the assailant which might have proceeded from the defense of the victim. The crime, therefore,
committed by the accused is murder, qualified by treachery," and therefore rendered the following verdict:
IN VIEW OF ALL THE FOREGOING, the Court finds the accused CARLOS FERNANDO alias
COMMANDER "BOB" guilty beyond reasonable doubt of the crime of MURDER defined and
penalized under Article 248 of the Revised Penal Code, and in view of the absence of any
mitigating or aggravating circumstance attending the commission of the crime, hereby
sentences him to suffer the penalty of reclusion perpetua with the accessory penalties
prescribed by law, to indemnify the heirs of Bienvenido Laxamana in the sum of P6,000.00,
without subsidiary imprisonment in case of insolvency in view of the nature of the principal
penalty imposed, and to pay the costs.
In this appeal, the accused-appellant assigns as error the trial court's rejection of his contentions that his
participation in the murder was in furtherance of the Huk movement and that he should have been held by
virtue of his Huk membership to have acted under the compulsion of an irresistible force and/or under the
impulse of an uncontrollable fear of an equal or greater injury. He further assigns as error the trial court's

denial of his motion to dismiss the case filed on November 4, 1963, after the prosecution had rested its case,
on the ground of double jeopardy, on the ground of his previous conviction on August 31, 1961 by the
Pampanga Court in another case 5of the crime of simple rebellion, on his entering of plea of guilty.
We find the trial court's rulings to be in accordance with the evidence and the law.
1. Appellant's contention that because he and Salonga as members of the Hukbalahap organization had
received from Commander Manly the order to liquidate the victim, the murder committed by them should
have been held in furtherance of and absorbed by the crime of rebellion, and that they should have been
instead charged for rebellion, is untenable. The record is bereft of any evidence that the murder was
committed as a necessary means to commit rebellion or in furtherance thereof. The victim had no established
connection with the government at the time. 6 As emphasized in People vs. Paz 7 besides, "(T)hat the killing
was in pursuance of the Huk rebellion is a matter of mitigation or defense that the accused has the burden of
proving clearly and satisfactorily." Far from discharging the burden, appellant himself revealed in his
unrepudiated written confessions that the killing was inspired by personal motives of avenging the alleged
killing of a relative of Commander Manly and the alleged maltreatment of Salonga's father, as ordered by the
victim Laxamana, and cannot be deemed absorbed by the rebellion and should be separately prosecuted. 8 As
held inHernandez, supra, 9 the mere fact that the accused is a member of the Hukbalahap organization "is no
reason why all his acts and misdeeds should be considered in furtherance of or absorbed by rebellion."
Appellant's contention that Commander Manly's personal motive did not apply to him and that he merely
obeyed as "a mere 'soldier' of the HMB is of no avail either in the face of his awareness of an acquiescence to
the personal motivation and the void of any evidence that the murder was necessary to the rebellion or in
furtherance thereof.
Accused next asks the Court to "take judicial notice of the fact that the Hukbalahap or HMB organization deal
with its members who disobey or refuse to carry out its orders in the most severe manner. A member who
disobeys or refuses to carry out its order may be liquidated or given another form of severe punishment." On
this tenuous premise, he claims that by virtue of his Huk membership, his participation in the murder of the
victim should have been deemed to be an act under the compulsion of an irresistible force and/or under the
impulse of an uncontrollable fear of an equal or greater injury as to exempt, him from criminal liability. 10
Justice Moreland long set the norm for the application of these exempting circumstances: "...before a force
can be considered to be an irresistible one, it must produce, such an effect upon the individual that, in spite of
all resistance, it reduces him to a mere instrument and, as such, incapable of committing a crime. It must be
such that, in spite of the resistance of the person on whom it operates, it compels his members to act and his
mind to obey. He must act not only without will but against his will. Such a force can never consist in anything
which springs primarily from the man himself; it must be a force which act upon him from the outside and by
means of a third person. In order that one may take advantage of subdivision 10 of article 8 and allege with
success that he acted under the impulse of an uncontrollable fear of an equal or greater injury, it must appear
that the threat that which caused the uncontrollable fear related to a crime of such gravity and so imminent
that it must safely be said that the ordinary run of men would have been governed by it. And the evil
threatened must be greater than, or at least equal to, that which he is compelled to cause." 11
2. Accused dismally failed to show that he acted "not only without will but against will." On the contrary, he
testified that he joined the Hukbalahap organization since, December 28, 1950 "because it is a good
organization." 12 The record is devoid even of any claim of the accused that any threats were made upon him
or that he acted under uncontrollable fear. He was not under any physical or moral compulsion when
according to his own version at the trial, he freely stood on guard outside the store while his companion
Salonga went inside and shot the victim. At his preliminary examination before Judge Tiglao, he further

testified that his role as guard was to fight off any persons who might come to the aid of the victim
Laxamana. 13 And without any physical or moral compulsion, after the killing, he and Salonga, according to his
own testimony at the same preliminary examination, returned to report the same to Commander Manly at
Barrio Kutid, Angeles, Pampanga and accept his congratulations and thanks. 14
3. The last principal error assigned by accused that the trial court should have dismissed the present case by
virtue of his previous conviction for rebellion on August 31, 1961 is without merit.
The accused, even before his apprehension in the encounter with the PC troops on June 12, 1961, already
faced the criminal charge of rebellion in an information filed on October 17, 1960 against him and several
others before the Pampanga Court of First Instance. 15 After his apprehension, he entered a plea of guilty to
the charge and was sentenced to six years, eight months and one day of prision mayor per the decision
handed down by the Pampanga court on August 31, 1961.
The murder of Laxamana for which the accused stands charged in the present case was committed on March
30, 1961. The criminal complaint therefor was filed with the municipal court of Bamban, Tarlac on July 19,
1961 and after the records were forwarded on September 14, 1962 to the trial court, the murder information
was filed on November 29, 1962.
There clearly can be no double jeopardy, because the murder of Laxamana on March 30, 1961 could not have
been possibly included as one of the specific counts in the information for rebellion filed against the accused
on October 17, 1960, as the murder had not yet been committed then. Furthermore, the acts constituting the
crime of rebellion were committed in the province of Pampanga where the accused was charged therefor,
while the murder of Laxamana for which the accused is charged in the present case was committed in the
province of Tarlac over which the Pampanga court had no jurisdiction. 16 Finally, as the murder here had
been shown to have been committed furtherance of the rebellion but for personal vengeance, it could not be
deemed absorbed by the crime of rebellion but had to be separately charged and punished. 17
In resume, even going upon the accused's own version at the trial that he merely stood guard while his
companion Salonga went inside the store and killed the victim, and that thereafter he fired three shots in the
air as a signal for them to part and return to their camp, the trial court correctly held this to constitute more
than adequate. Proof of his participation as conspirator and of his responsibility as co-principal in the
murder. 18 In the absence of evidence that, the killing, qualified by treachery, was attended by any aggravating
or mitigating circumstances, the trial court correctly imposed the penalty of reclusion perpetua. The indemnity
to the heirs of the victim is increased to P12,000.00. 19
WHEREFORE, the judgment appealed from is hereby affirmed, with the modification that the indemnity to the
heirs of the deceased Bienvenido Laxamana is increased to P12,000.00. With costs against the accusedappellant.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Fernando and Villamor, JJ., concur.
Castro, J., is on leave.
Barredo, J., took no part.

Footnotes

1 Exhs. F, F-1, F-2 and F-3.

2 Exhs. D, D-1 and D-2.
3 T.S.N., Junio. pp. 75-107.
4 Exhs. A, A-1, to A-22.
5 Criminal Case No. 4119 entitled "People of the Phil. vs. Filemon David, et al." of the Court of First
Instance of Pampanga.
6 See People vs. Egual, L-13469 and L-14240 and People vs. Hernandez, L-14209; May 27, 1965; 14
SCRA 89.
7 L-17320, May 31, 1965; 14 SCRA 132.
8 People vs. Regado, L-13025, Dec. 29, 1959, cited in Paz, fn. 7.
9 Fn. 6.
10 Art. 12, pars. 5 and 6, Revised Penal Code; Appellant's brief, p. 4.
11 U.S. vs. Elicanal, 35 Phil. 209 (1916), italics supplied. See also People vs. Cabasa, 85 Phil. 758, (1950)
; People vs. Semanada 103 Phil. 790 (1958).
12 T.S.N., Junio, p. 76.
13 Exh. D-1.
14 Exh. D-2.
15 Supra, fn. 5.
16 People vs. Egual, supra, fn. 6.
17 People vs. Kamlon, L-12686, Oct. 24, 1963; 9 SCRA 252; People vs. Geronimo, 100 Phil. 90 (1956).
18 People vs. Paz, supra, fn. 7.
19 People vs. Pantoja, L-18793, Oct. 11, 1968; 25 SCRA 468.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-13025

December 29, 1959

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
TEODULO ROGSDO, ET AL., defendants-appellants.
Solicitor General Edilberto Barot and Solicitor Jorge R. Coquia for appellee.
Alfredo G. Fernando for appellant Teodoro Rogado.
Angel C. Facundo for the appellants.
BAUTISTA ANGELO, J.:
On September 25, 1956, Teodulo Togado, alias Commander Sulit, Isaac Orenia, alias Commander Lawin,
Domingo Golfo, alias Eser, Cresencio Arsenal, alias Sako, Pedro Merin, alias Abling, Francisco
Racoma, aliasManeng, Pio Mercurio, alias Abling, Francisco Racoma, alias Rolando, Nemesio
Arsolacia, alias Noli, and Conrado Devesa, alias Donato, were charged with murder before the Court of First
Instance of Laguna for killing of one Salvador Areza. They all pleaded not guilty.
During the trial and after several witnesses for the prosecution have testified, Francisco Racoma and Conrado
Devesa were excluded from the information upon motion of the fiscal to be utilized as government witnesses.
Later, upon motion also of the fiscal, the charge was dismissed for insufficiency of evidence with respect to
accused Nemesio Arsolacia, Maximo Cerebo and Pedro Merin. Then counsel for the remaining accused filed a
motion to dismiss on the ground that the killing of the deceased was accomplished by them in furtherance of
the huk movement, but the motion was denied.
Upon resumption of the trial, counsel for Teodulo Rogado and Pio Mercurio moved for separate trial on the
ground that their defense is incompatible with the defense of their co-accused, which motion was granted by
the trial court. And when both parties have submitted the case for decision, the trial court found the accused
Rogado, Orenia, Golfeo and Arsenal guilty as principals of the crime charged and sentenced them to suffer the
supreme penalty of death, while it found Pio Mercurio guilty merely as accomplice and sentenced him to the
penalty of from 8 years and 21 days of prision mayor as minimum to 14 years 19 months and 21 days
of reclusion temporal as maximum, with the corresponding accessory penalties provided for by law. Each of
the four principals was also ordered to indemnify the heirs of the deceased in the sum of P6,000.00 and the
accomplice in the amount of P2,000.00, and all to pay their proportionate share of the costs.
Pio Mercurio having failed to file his brief, this case is before this Court only for the review of the decision
rendered against the accused Rogado, Orenia, Golfeo and Arsenal which imposes upon them the penalty of
death.
On July 12, 1956, Salvador Areza, a farmer residing in Lilio, Laguna, left his house carrying with him a bolo on
lots scabbard to gather firewood in his farm in barrio Bubukal. When he failed to return home that day, his
wife Lydia Nudal went out to search for him. She was accompanied by some armed men, the mayor, and a
sanitary health officer, and after a brief search, they found the decapitated body of her husband in an

uninhabited place in Bubukal about half kilometer away from the road. The gruesome find revealed that
Areza's head was totally severed from his body with his hands tied together. The health officer, Dr. Dominador
L. Gomez, found the body to be in state of decomposition, which led him to conclude that the deceased must
have died three to five days prior to his discovery. Areza's bolo and his scabbard were also found near his
body.
It appears that on July 12, 1956, Teodulo Rogado, alias Commander Sulit, Isaac Orenia, alias Commander
Lawin, Domingo Golfeo, alias Eser Cresencio Arsenal, alias Sako, Pedro Merin, alias Nestor, Maximo
Cerebo, aliasManeng, Pio Mercurio, alias Abling, Nemesio Arsolacia, alias Noli, Francisco
Racoma, alias Rolando, and Conrado Devesa, alias Donato, were on their way from barrio Sta. Lucia,
Nagcarlan, to the municipality of Lilio, Laguna. They lost their way, and as they were looking for someone from
whom they should get information as to their whereabouts they met Salvador Areza whom Racoma and
Deveza approached. Upon their inquiry, Areza informed them that they were in barrio Bubukal, municipality of
Lilio; that there was an army camp stationed nearby; and that the soldiers occasionally go on patrol to the
barrios.
The information was reported to commander Sulit (Rogado) who in turn ordered that Areza be brought to
him. After talking with him, Rogado asked Areza to lead the way for them, but Areza refused saying that he
had much work to do, and besides he had a carabao with him. after a brief talk with Orenia, alias Commander
Lawin, rogado told Racoma that they were taking along Areza and that if he should refuse, he should be tied,
which instruction Racoma relayed to his two companions, Merin and arsenal, telling them to be prepared in
case Areza would give them a fight. Thereupon, Racoma approached Areza and asked if he could barrow from
him his bolo. Areza obliged. When Areza refused to go with them, Pio Mercurio dragged him along, and as he
refused, Golfeo struck him with the butt of his gun.
After walking a short distance, Mercurio tied Areza's hands behind him. Areza protested telling Mercurio that
he had not done anything wrong, whereupon Golfeo gave him a fist blow on his stomach. After walking some
distance, a command to stop was heard and so they stopped. Racoma then approached Rogado and told him
that they should release Areza at night but rogado told him that Areza should be killed and when Racoma
returned to the group he found that Areza was being assaulted by Orenia and Golfeo. At this moment, Racoma
heard Rogado saying, in the vernacular, "Kill him now so we can proceed." Areza was then taken to a secluded
place quite far from the road, which was thick forest about 20 or 30 meters away from the group, and there
Golfeo ordered Areza to lie down. With Areza's bolo and ignoring the plea for mercy of their victim, Golfeo
gave him a blow on the neck as he lay face down and with his hands still tied behind. With the same bolo,
Arsenal also gave the victim another blow on the neck which completely severed the head from the body.
On September 20, 1956, Pedro Merin, a member of the group who surrendered to the authorities, made a
sworn statement before the Justice of the Peace of Nagcarlan, Laguna, stating therein that Salvador Areza was
killed by Ezer and Sako upon order of Commander Sulit. Domingo Golfeo also made a sworn statement before
the justice of the Peace of Sta. Cruz, Laguna, admitting his participation in the killing of Areza upon order of
Commander Sulit. On September 21, 1956, Cresencio Arsenal also made a written statement before the
Mayor of Sta. Cruz, Laguna, admitting that he was one of those who killed Areza. Both Domingo Golfeo and
Cresencio Arsenal, while admitting their participation in the killing of the deceased, claimed in exculpation
that they acted under the pressure of an irresistible force in that they merely obeyed the order of their
Commander, Rogado aliasCommander Sulit, who would have killed them if they disobeyed his order. The
other appellants merely contended that the killing was done in furtherance of the huk rebellion.lawphi1.net
Their is no doubt that the unfortunate victim met his death in the hands of the accused who decided to take
his life because of his stubborn refusal to obey their command that he lead their way to the place they wanted

to go in order that they may not be exposed and caught by the agents of the law who were stationed in a
nearby municipality. The only question to be determined is whether the defense they have set up is sufficient
to exonerate them from liability.
As regard accused Domingo Golfeo, The evidence is clear that it was he who first struck Areza with the butt of
his gun hitting him on the side of his body, then gave him a fist blow on his stomach, and after he had been
taken to a secluded place, it was he who ordered Areza to lie down in the fashion adopted by the Kempetai
during the gloomy days of Japanese occupation and in that position gave him a blow on the back of the neck
which almost severed his head from the body. His participation in the killing of Areza cannot therefore be
doubted. His only defense is that he did so in obedience to the order of his commander, and because he acted
under the influence of uncontrollable fear, he should be exempt from criminal responsibility.
The defense of Golfeo is clearly untenable not only because of the well-settled rule that obedience to an order
of a superior will only justify an act which otherwise would be criminal when the order is for a lawful purpose,
but also because the circumstances under which Golfeo participated in the torture and liquidation of Areza
cannot in any way justify his claim that he acted under an uncontrollable fear of being punished by his
superiors if he disobeyed their order. In the first place, at the time of the killing, Golfeo was armed with
automatic carbine such that he could have protected himself from any retaliation on the part of his superiors
if they should threaten to punish him if he disobeyed their order to kill Areza. In the second place, the
evidence shows that Areza was brought to a secluded place quite far from that where his superiors were at
the time and in such a predicament, he and companion Arsenal could have escaped with Areza to void the ire
of their superiors. The fact that he carried out their order although his superiors were at some distance from
him and that without pity and compunction he struck his victim in a Kempetai fashion show that he acted on
the matter not involuntarily or under the pressure of fear of force, as he claims, but out of his own free will
and with the desire to collaborate with the criminal design of his superiors. In the circumstances, we find that
the trial court did not err in finding him responsible for the death of Areza as co-principal by direct
participation.
The same situation obtained with regard to Cresencio Arsenal. It appears that he was one of those ordered by
Rogado to kill Areza and in obedience to such order he had a direct participation in the killing. It was he and
Golfeo who brought Areza to a secluded place and once there he helped Golfeo in killing him with the same
bolo which was taken from the victim himself. Thus, it appears that after Golfeo had given the first blow on
the back of the neck of Areza as he lay face down on the ground, Arsenal took the bolo himself and gave the
fatal blow which completely severed the head of Areza from his body. There is therefore no doubt that
Arsenal directly cooperated with Golfeo in carrying out the concerted plan of killing Areza because of the
hostile attitude he adopted in denying them the help they demanded from him. Since Arsenal to those existing
in the case of Golfeo, his claim of obedience and fear of retaliation if he disobeyed his superiors' order cannot
also be entertained.
The other defense of appellants refers to their theory that they killed Areza not for personal motive but in
furtherance of the huk rebellion and so, if any liability they have, it is only for rebellion and for murder as they
are charged. And having already been prosecuted and convicted of the crime of rebellion in Criminal Case No.
SP-137 of the Court of First Instance of Laguna, their prosecution in the instant case would constitute double
jeopardy.
to begin with, it should be stated that while this Court ruled in People vs. Hernandez, 99 Phil., 515, 52 Off.
Gaz., No. 11, p. 5506, that there is no complex crime of rebellion with murder because the latter offense is
absorbed by the former, however, a distinction was made in the case of People vs. Geronimo, 100 Phil., 90, 53,
Off. Gaz., No. 1, p. 68, where we held that if the killing is inspired by personal motive such killing is not

absorbed by the rebellion but may be the subject of separate prosecution. In the second place, we find that
the acts with which appellants now charged do not appear included in the information for rebellion in Criminal
Case No. SP-137, for in the case they were merely accused of having risen and taken up arms against the
Philippine constabulary, Armed Forces of the Philippines, police forces and other military detachments of the
government, without specifying the particular acts committed against private persons or civilians which may
be said to have been undertaken in furtherance of the huk rebellion. It is not, therefore, correct to say, as
appellants now claim, that the act in question is already included or absorbed in the rebellion charge filed
against them in said criminal case.
On the other hand, the pretense that the killing of Areza by appellants was done in furtherance of the huk
rebellion is preposterous considering the fact that Areza was a mere farmer who had no connection
whatsoever with any law-enforcement agency of the government. The pertinent question that arises is: Why
was he taken killed and brutally beheaded by appellant?
The answer is well given in the following interesting observation of the trial court:
According to the testimony of the prosecution witness, Francisco Racoma, Salvador Areza was
maltreated, tied and killed because the latter refused to lead and guide the group of Rogado to the
road when he was asked by the latter to do so, Rogado's men were lost in the mountains of Lilio and
they needed somebody to help them find the way out of the place. They came upon Areza working in
his farm. Rogado asked him to lead the way and Areza refused saying that he had much work to do and
he could not leave his carabao. Angered and irked by such stubborn refusal, Rogado after conferring
with his co-defendant Orenia gave the order to take Areza along and to kill him. The killing of Areza
was done solely to satisfy the anger of the leader, rogado, who being used to the blind obedience of his
men could not tolerate the refusal of Areza to carry out his wishes and desires. The rebellious
movement of the group had nothing to gain by Atienza's death. On the contrary, Rogado and his group
needed Areza alive in order that they could utilize him as their guide while they were in the mountains
of Lilio. There is no question that they could have easily at the point of their thompsons, carbines and
garands, forced Areza to lead the way. But they did not do so, because at that time Rogado was not so
much interested in finding the path to the road; what concerned him most was to teach a lesson and a
hard one at that, to Salvador Areza for having the timerity of saying "no" to his wish and request.
Surely, to kill a person under those circumstances is obviously outside of the political intent of the
Hukbalahap movement. The huks rise up in arms because they mistakenly believe that by doing so they
can have desired changes in the political, social, and economic life of this country. But to accomplish
such a purpose, the death of innocent civilians like Salvador Areza is unquestionably unnecessary.
When the killing is done solely for the purpose of answering the lust to kill or of satisfying angered
feelings, thwarted desires of leaders and followers of the Hukbalahap movement, such a killing must
receive its due punishment at the hands of our courts which are called upon to do justice not only to
the living but just as well to the dead.
An attempt was made by appellants to show that Areza was killed because he threatened to inform the Army
of their presence in the neighborhood where he met them. Such attempt, however, is ridiculous, for Areza,
being then alone and confronted with a group of armed men, could not have hurled such a threat without
catering immediate death. As the trial court aptly observed: "This Court cannot believe that Areza would have
been such a fool to tell that band of armed Huks that he would give them away to the Army. It is reasonable to
presume that any sane person would have seen the danger of making such statement under the
circumstances, for that would have been sure death."

The trial court found that the crime was committed with the qualifying circumstances of treachery, aggravated
by abuse of superior strength and the fact that it happened in an uninhabited place, for which reason it
imposed upon appellants to supreme penalty of death. While some members of the Court agree to the
existence of the above aggravating circumstances, others however doubt if they could be entertained in the
case of appellants who, as members of the Hukbalahap organization, rightly or wrongly, were of the belief that
they were justified in doing what they had done because Areza committed something inimical to the purposes
of their organization. At any rate, the requisite number of votes for the application of the supreme penalty not
having been obtained, the only alternative is to impose upon them the penalty of reclusion perpetua.
With this modification, we affirm the decision appealed from all other respects, with costs against appellants.
Paras, C.J., Bengzon, Padilla, Montemayor, Labrador, Endencia, Barrera and Guttierrez David, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-6082

March 18, 1911

THE UNITED STATES, plaintiff-appellee,

vs.
ISIDRO VICENTILLO, defendant-appellant.
C.W. Ney for appellant.
Attorney-General Villamor for appellee.
CARSON, J.:
The defendant in this case was found guilty in the court below of the crime of "illegal and arbitrary detention"
of the complaining witness for a period of three days, and sentenced to pay a fine of 625 pesetas, with
subsidiary imprisonment in case of insolvency, and to pay the costs of the trial.
We are of opinion that under all the circumstances of this case there can be no doubt of the lawful authority
of the defendant, in the exercise of his functions as municipal president, to make arrest of the complaining
witness which resulted in his alleged unlawful detention. As we understand the evidence, the alleged offense
with which the complaining witness in this case was charged was committed by him in the presence of the
municipal president, who must be held to have had all the usual powers of a police officer for the making of
arrest without warrant, under the doctrine laid down in the case of U.S. vs. Fortaleza (12 Phil. Rep., 472).
The judgment of conviction of the court below must therefore be reversed, unless the evidence discloses that
having made the arrest, the defendant arbitrarily and without legal authority, as it is alleged, cause the
complaining witness to be detained for a period of three days without having him brought before the proper
judicial authority for the investigation and trial of the charge on which he was arrested. But so far as we can
gather from the extremely meagre record in this case the arrested man was in fact brought before a justice of
the peace as soon as "practicable" after his arrest. True, three days were expended in doing, so, but it was
conclusively proven at the trial that at the time of the arrest neither the local justice of the peace nor his
auxiliary were in the municipality, and to reach the justice of the peace of either of the two adjoining
municipalities, it was necessary to take a long journey by boat. The evidence discloses, moreover, that with all
practicable dispatch, the prisoner was forwarded first to one and then to the other of the adjoining
municipalities for trial, the failure to secure trial on the first occasion being due to the fact that the written
complaint, which was intrusted to the policeman in charge of the prisoner, was either lost or stolen. It does
not appear why the prisoner was not sent to the same municipality on both occasions, but in the absence of
proof we must assume that in this respect the officers in charge were controlled by local conditions, changes
in the weather, or the like, which, as appears from the uncontradicted evidence of record, made the journey
by boats safer and more commodious sometimes to one and sometimes to the other of the two adjoining
municipalities.
It may be that the defendant was not friendly to the arrested man, and that he was not sorry to see him
exposed to considerable inconvenience and delay in the proceedings incident to his trial, but there is nothing
in this record upon which to base a finding that his defendant caused the arrest and the subsequent detention

of the prisoner otherwise than in the due performance of his official duties; and there can be no doubt of his
lawfully authority in the premises. The trial judge lays great stress upon the trivial nature of the offense for
which the arrest was made, but keeping in mind the fact that there was no judicial officer in the remote
community where the incident occurred at the time of the arrest, and no certainty of the early return of the
absent justice of the peace, or his auxiliary, we are not prepared to hold, in the absence of all the evidence on
this point that in a particular case of a defiance of local authority by the willful violation of a local ordinance, it
was not necessary, or at least expedient, to make an arrest and send the offender forthwith to the justice of
the peace of a neighboring municipality, if only to convince all would-be offenders that the forces of law and
order were supreme, even in the absence of the local municipal judicial officers.
The judgment of the lower court convicting and sentencing the defendant must be reversed and he is hereby
acquitted of the offense with which he is charged, with the costs in both instances de oficio. So ordered.
Arellano, C.J., Mapa , Moreland, and Trent, JJ., concur.

THIRD DIVISION

[G.R. No. 139759. January 14, 2005]

DANILO DANNY MENDOZA, petitioner, vs. THE PEOPLE OF THE PHILIPPINES, respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the petition for review on certiorari seeking the modification of the Decision[1] of the
Court of Appeals, dated June 29, 1999, in CA-G.R. CR No. 21536, which affirmed the judgment of the Regional
Trial Court (RTC), Branch 12, Laoag City, in Criminal Case No. 7190. In this case the trial court convicted accused
Danilo Mendoza, petitioner herein, for homicide wherein the victim was Alfonso Nisperos. Petitioner does not
seek an acquittal but merely prays that the privileged mitigating circumstance of incomplete self-defense be
considered in his favor.
The Information charging petitioner with homicide is quoted as follows:
That on 23 November, 1994, in the evening at Brgy. 19, San Nicolas, Ilocos Norte, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with intent to kill, did then and there willfully,
unlawfully and feloniously stab ALFONSO NISPEROS on the different parts of his body which caused his death few
moments thereafter.
CONTRARY TO LAW.
Upon being arraigned on March 23, 1995, petitioner pleaded Not Guilty.
However, on July 11, 1995, petitioner manifested, through counsel, his desire to change his plea to that of
guilty and to prove the privileged mitigating circumstance of incomplete self-defense.
Thus, on July 25, 1995, petitioner was re-arraigned and he entered a plea of guilty.
Evidence for the prosecution show that on November 23, 1994, one Willy Baluyot celebrated his birthday at
his residence in Barangay 19, San Nicolas, Ilocos Norte. Among those invited were Danilo Mendoza, petitioner,
Alfonso Nisperos, Gervacio Pascua, William Kiskis, Manuel dela Cruz, Jr., Erwin Vergara, and Nelson Romana.
During the party, Erwin Vergara got inebriated and had to be brought to a nearby hut by Alfonso Nisperos
and Willy Baluyot to shake off the effects of his intoxication.
When the duo returned, petitioner suddenly smashed a pitcher of water on the table and shouted, Bullshit!
You are always asking us to drink. The group was taken aback. Alfonso Nisperos asked petitioner,
Why, Mang Danny, why should we be the ones to quarrel?
Petitioner then went to his house about 40 to 45 meters away.
The group was still talking about petitioners outburst when Daniel Nisperos, a brother of Alfonso Nisperos,
joined them. Daniel noticed that petitioners mother was displeased since the group was discussing her sons

behavior. She feared that something untoward might happen. This caused the party to break up and the
Nisperos brothers headed for home. They were accompanied by their mother, Loreta Nisperos.
After sometime, Alfonso Nisperos stepped out of his house to get some soup. When he returned, he told his
mother Loreta that he saw a person near their cow tied to a tamarind tree. Alfonso then went out again to check
on the person he saw.
After a short while, Loreta suddenly heard Alfonso screaming, Mother, help me!
Loreta rushed to her son. She found him lying, face down, with petitioner on top of him, stabbing him with a
knife.
Loreta then approached petitioner, pleading to him not to kill her son. But instead of heeding her plea, he
suddenly attacked her with his knife, hitting her right arm. Petitioner then dashed away from the scene.
Danilo brought his brother, Alfonso, to the Batac General Hospital in Batac, Ilocos Norte where he was
pronounced dead on arrival.
Petitioner testified that the victim was the aggressor who attacked him with a knife. Thus, he was forced to
kill him with his own knife in order to defend himself.
On July 8, 1997, the trial court rendered its Decision convicting petitioner of homicide and sentencing him to
suffer six (6) years and one (1) day of prision mayor, as a minimum, to fourteen (14) years and eight (8) months
of reclusion temporal, as a maximum, having taken into consideration his plea of guilty. Petitioner was also
ordered to pay the heirs of the victim P50,000.00 as damages.
On appeal, docketed as CA-G.R. CR No. 21536, the Court of Appeals affirmed the Decision of the trial court.
Hence, the instant recourse.
The sole issue for our resolution is whether or not the Court of Appeals erred in not finding that when
petitioner committed the crime charged, the privileged mitigating circumstance of incomplete self-defense was
present.
Petitioner, in his petition, relies on Article 69 of the Revised Penal Code quoted as follows:
ART. 69. Penalty to be imposed when the crime committed is not wholly excusable. A penalty lower by one or
two degrees than that prescribed by law shall be imposed if the deed is not wholly excusable by reason of the lack
of some of the conditions required to justify the same or to exempt from criminal liability in the several cases
mentioned in articles 11 and 12, provided that the majority of such conditions be present. The courts shall
impose the penalty in the period which may be deemed proper, in view of the number and nature of the
conditions of exemption present or lacking.
Petitioner contends that the trial court erred in holding that the witnesses for the prosecution who are close
relatives of the victim are credible.
Petitioner also contends that the prosecution failed to prove any motive on his part in stabbing the victim.
Petitioner likewise faults the prosecution for its failure to present the knife used in attacking the victim.
In incomplete self-defense, unlawful aggression must be present, it being an indispensable requisite. What is
absent is either one or both of the last requisites, to wit: reasonable necessity of the means employed to prevent
or repel it; and, lack of sufficient provocation on the part of the person defending himself. [2]
Just as in complete self-defense, the burden of proof is upon petitioner to prove the elements of incomplete
self-defense. It follows that he should have proved before the trial court that there was unlawful aggression on

the part of the victim. As found by the trial court, petitioner, to establish this element, testified that during that
drinking spree, he had an altercation with Willy Baluyot, the birthday celebrant. Feeling bad, he (petitioner)
slammed the table with a pitcher containing water. Then he left. At a distance, he heard the victim calling him.
When they were close to each other, the victim blamed him for his conduct. He apologized but the victim started
stabbing him with a knife. He tried to parry the attack as he retreated. That moment, his back was against a
wall. He then grappled for the knife which he was able to wrench from the victim. They rolled over on the
ground. At that point, he repeatedly stabbed the victim with his own knife.
The prosecution, to prove that petitioner was the aggressor presented Loreta Nisperos, victims mother, who
testified as follows:
Q: And when you proceeded to that madre tree, what did you see?
A:

My son was already lying flat on the ground facing the ground and this Danilo was on top of him
and stabbing him.

Q:

You said that you saw Danilo stabbing your son, what instrument did he use in stabbing your son?

A:

Knife (immuko).

Q:

Can you approximate the time, what time was that?

A:

Between the hours of 8:00 and 9:00 oclock.

Q:

It was already nighttime and it was dark?

A:

It was moonlight and there was also a light near the place where they were drinking.

Q:

From the place where you saw Danilo Mendoza stabbing your son and the location of the bulb or
the light, how far was it?

ATTY. BELLO:
There is no need of this question because the accused admitted that he stabbed the victim.
ASST. PROVL PROS. MOLINA:
x x x
Q:

When you saw Danilo Mendoza stabbing your son, what did you tell him?

A:

I pleaded to him saying, Danilo, Danilo, Danilo, please do not kill him.

Q:

Upon saying those words, what happened next?

A:

My son was able to move a little bit northward.

Q:

And where did the accused go?

A:

He still followed him.

Q:

And when the accused followed your son, what did the accused do?

A:

When I went near them, he also stabbed me.

Q:

And what portion of your body was stabbed?

A:

This one, sir. (Witness pointing to her right arm).

As stated by the Solicitor General in the appellees brief, petitioner was not defending himself from any
attack but was himself the aggressor against the victim and his mother.
The trial court did not believe petitioners testimony. Neither did the Court of Appeals. It bears stressing
that factual findings of trial courts are accorded respect by appellate courts unless certain facts have been
overlooked which, if considered, could affect the result of the case.[3] This exception is not present here.
We thus agree with the Court of Appeals that there was no unlawful aggression on the part of the victim.
This element being absent, petitioner cannot be accorded the privileged mitigating circumstance of incomplete
self-defense.
WHEREFORE, the appealed Decision of the Court of Appeals, sustaining the judgment of the trial court, is
AFFIRMED, with costs de oficio.
SO ORDERED.
Panganiban, (Chairman), Corona, Carpio-Morales, and Garcia, JJ., concur.

[1]

Rollo, pp. 11-16. Per Associate Justice Roberto A. Barrios and concurred in by Associate Justices Godardo A.
Jacinto and Eriberto U. Rosario, Jr., retired.

[2]

People v. Ambrocio, et al., G.R. No. 140267, June 29, 2004, p. 18. See Revised Penal Code, Art. 11.

[3]

People v. Agsalog, et al., G.R. No. 141087, March 31, 2004, citing People vs. Samson, 189 SCRA 700 (1990).

SECOND DIVISION

[G.R. Nos. 111168-69. June 17, 1998]

JOAQUIN E. DAVID, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
DECISION
MENDOZA, J.:
This is a petition for review on certiorari of the decision of the Court of Appeals. Petitioner Joaquin E.
David was charged, in two separate informations, with homicide and frustrated homicide for the fatal shooting
of Noel Nora and the serious wounding of the latters brother, Narciso Nora, Jr., on March 28, 1981, in
Malabon, Metro Manila.
After trial, petitioner was found guilty as charged. The dispositive portion of the decision, dated August
17, 1988, of the Regional Trial Court of Kalookan City reads:[1]
WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of the crime of Homicide under
Articles 249 and 64(1) of the Revised Penal Code, and for the crime of Frustrated Homicide under Articles 249
and 50, without any mitigating or aggravating circumstance in both cases, and hereby sentences the accused,
For the crime of Homicide, to suffer an indeterminate sentence of EIGHT (8) YEARS and ONE (1) DAY of prision
mayor medium, as minimum, to SIXTEEN (16) YEARS of reclusion temporal medium, as maximum;
For the crime of Frustrated Homicide, to suffer an indeterminate sentence of TWO (2) YEARS and ONE (1) DAY
of prision correccional as minimum, to EIGHT (8) YEARS and ONE (1) DAY of prision mayor, as maximum.
And ordering the accused:
(1)

To indemnify the heirs of Noel Nora the sum of P30,000.00 for the death of Noel Nora
P37,000.00 for actual damages
P30,000.00 for moral damages
P20,000.00 for and as attorneys fees
or a total sum of P117,000.00;

(2)

Further, to indemnify Narciso Nora the sum of P8,728.00 for actual damages

P20,000.00 for moral damages

or a total sum of P28,000.00
SO ORDERED.
On appeal, the Court of Appeals, in its decision [2] rendered on October 29, 1992, modified the sentence
after crediting petitioner with the mitigating circumstance of voluntary surrender: [3]
The penalty prescribed by law for homicide is reclusion temporal. Since there is one (1) mitigating and no
aggravating circumstance, the penalty should be imposed in the [sic] its minimum period. Applying the
Indeterminate Sentence Law, the range of penalty next lower to that prescribed by the Revised Penal Code for
the offense is prision mayor. For the crime of Homicide, the penalty is therefore modified to a minimum of 10
years and 1 day of prision mayor to a maximum of 14 years and 8 months of reclusion temporal.
As to the crime of Frustrated Homicide, the same is likewise modified to a minimum of 4 years and 1 day
of prision correccional to a maximum of 6 years and 1 day of prision mayor.
WHEREFORE, except for the modifications above indicated, the rest of the appealed judgment is hereby
AFFIRMED in all respects.
SO ORDERED.
On July 29, 1992, the appellate court further modified the sentence on petitioner on the ground that the
evidence did not show that he had a police record or that he was incorrigible. The dispositive portion of the
courts resolution[4] stated:
WHEREFORE, except for the penalties imposed which is hereby modified to read as follows: 1) for the crime of
Homicide with one mitigating circumstance - the penalty ranging from six (6) years and one (1) day of prision
mayor as minimum and twelve (12) years and one (1) day of reclusion temporal as maximum; and 2) for the
crime of frustrated homicide with one mitigating circumstance - six (6) months and one (1) day of prision
correccional as minimum to six (6) years and one (1) day of prision mayor as maximum, the motion for
reconsideration is DENIED for lack of merit.
SO ORDERED.
Still not satisfied, petitioner brought this appeal from the decision, as modified, of the Court of Appeals.
Petitioner contends that[5]I.
THE PUBLIC RESPONDENT COURT OF APPEALS GRIEVOUSLY ERRED IN NOT HOLDING THAT THE
ELEMENTS OF SELF-DEFENSE HAVE BEEN ESTABLISHED BY PETITIONER BY EVIDENCE WHICH IS CLEAR,
SUFFICIENT, SATISFACTORY, CREDIBLE, CONVINCING, COMPETENT AND PERSUASIVE.
II.
THE PUBLIC RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN FAILING TO CONSIDER THE
EXCULPATORY FACTS IN FAVOR OF THE PETITIONER WHICH IF DULY CONSIDERED WOULD HAVE
COMPLETELY EXONERATED PETITIONER FROM THE CRIMES CHARGED.

III.
THE PUBLIC RESPONDENT COURT OF APPEALS GRAVELY ERRED IN NOT HOLDING THAT IF THERE WAS NO
COMPLETE SELF-DEFENSE, THEN AT THE VERY LEAST THERE IS IN THIS CASE AN INCOMPLETE SELFDEFENSE. STILL, IF PETITIONERS DEFENSE IS DISBELIEVED, OTHER MITIGATING CIRCUMSTANCES
SHOULD BE APPRECIATED IN PETITIONERS FAVOR.
IV.
THE DECISION OF THE PUBLIC RESPONDENT COURT OF APPEALS IS NOT IN ACCORDANCE WITH THE
CONSTITUTIONAL PRESUMPTION OF INNOCENCE.
The prosecution evidence in this case is as follows:
On March 28, 1981, at about 10:00 p.m., while the Nora brothers Arturo, Arnel, Noel and Narciso were
walking along Flerida Street in Malabon, Metro Manila on their way home to Capitan Tiago Street, they saw
petitioner near the compound of his house. Noel Nora, the deceased, confronted him about derogatory
remarks allegedly made by the latter. Petitioner ran to his house to get a gun. When the Nora brothers
reached the intersection of Flerida and Capitan Tiago Streets, he shouted at them Putang ina ninyo (You sons
of a bitch) and other epithets, and then fired four times at them. One shot hit Noel, killing him. Another shot
hit Narciso Nora on the ankle. Another nearly hit the zipper of Arturo Nora.
Petitioner claimed self-defense. He alleged that on the night in question, he went to the corner of Flerida and
Capitan Tiago Streets because Noel Nora had earlier challenged him to a fight. However, upon reaching the
place, he found that Noel had brought along his three (3) brothers and other companions who ganged up on
him. Petitioner claimed that Noel Nora stabbed him with a knife, hitting him on the left arm and that the
group could have stabbed him several times more had he not been able to dodge their blows. He said when
he tried to run away, the victims brothers held both his arms while Narciso hit him with a piece of wood on
the thighs and buttocks and the others boxed him on the abdomen. Petitioner said he was able to run away,
but the Nora brothers chased him, shouting, We will enter your house and we will kill you. Petitioner
therefore took the .38 caliber gun of his father (who was a policeman) from the cabinet on the ground floor of
their house.
Petitioner went out of the house. The Nora brothers, who were just five (5) steps away from the door of their
house, ran after seeing that petitioner had a gun. But after running to the other side of the street, they hurled
stones at petitioner and shouted derogatory words at him. Petitioner claimed he afterward went inside the
compound, but he slipped, whereupon the Nora brothers advanced toward him. He warned them not to get
near, but they kept coming closer, for which reason petitioner fired at them. Petitioner was then from four (4)
to five (5) meters away from the group. Petitioner afterward went inside their house and gave the gun to his
mother.
In rejecting petitioners claim of self-defense, the Court of Appeals said:[6]
The bone of contention in this case centers on the issue of self-defense. The trial court, in denying the same,
ruled that since there was no unlawful aggression immediately preceeding [sic] the shooting of the victims, the
claim of self-defense to justify the acts of the accused is unavailing.
For its part, the appellant contends that the lower court erred in its appreciation of the evidence and
testimony of witnesses relative to the locus of the shooting incident. The appellant claims that

notwithstanding the direct contradiction made by defense witnesses regarding the locus of the crime, the
same does not in any way diminish the credibility of appellants story and his claim of self-defense.
The contention is devoid of merit. In this case, the issue with respect to the locus of the crime is
determinative not only of the place of its commission. More importantly, it is decisive in determining the
existence of unlawful aggression as justification for appellants claim of self-defense.
The facts of the case and the evidence presented during the trial reveal that the shooting of the victims
happened outside the residential compound of the accused. No matter how the defense try to belabour the
issue by claiming in its reply brief that there were in fact two (2) compounds - the residence of the accused
being a small compound within the bigger compound of his relatives residence and that the victims were shot
inside this big section albeit outside the residential compound of the accused, the evident fact remains that
the victims were shot not in the vicinity of appellants residence as claimed by the defense but in the streets,
after the accused has taken his fathers gun from their house. Noteworthy is the testimony of defendants
mother to the effect that:
Court:
The Court would like to ask. Was your son outside or inside the gate of your compound when
you went to verify the shots?
Witness:

He was about to enter the gate of our compound.

Court:
When you say he was about to enter the gate of the compound, he was coming from the
outside of the compound of course?
Witness:

He was outside the gate of our compound.

(TSN, 11 November 1987 p. 13)

The accused who claims self-defense must prove its elements clearly and convincingly. The rationale is
because such proceeds from the admission of the accused that he killed or wounded another, which is a
felony, for which he should be criminally liable unless he established to the satisfaction of the Court the fact of
legitimate defense (Castanares v. Court of Appeals, 92 SCRA 567)
As correctly appreciated by the trial court, the evidence established that there was in fact no immediate
unlawful aggression to warrant the acts of the accused in shooting the victims. While the accused was indeed
mauled and beaten up by the deceased and his companions, the aggression stopped when the accused was
able to free himself from the assault of the group and thereafter sought refuge in their house. An act of
aggression, when its author does not persist in his purpose or when he discontinues his attitude to the extent
that the object of his attack is no longer in peril is not unlawful aggression warranting self-defense (People v.
Macariola, 120 SCRA 92)
Having sought refuge in their house after the aggression had ceased, the accused should have desisted from
stepping out of their abode with his fathers gun. In going after the deceased and his companions after the
unlawful aggression ceased to exist, the act of the accused became retaliatory in nature, done for the
purpose of avenging whatever pain and injuries he had suffered from the hands of the
victims. Consequently, the same cannot be considered as constituting self-defense for the act to repel the
unlawful aggression must immediately follow such unlawful aggression (US v. Ferrer, 1 Phil. 56).

First. Petitioner contends that the unlawful aggression of the Noras and their group did not cease and
that the finding of the Court of Appeals that it did is contrary to the evidence, particularly the testimonies of
Inocencio Antonio and Florthelito Vergara.
Petitioner omits to mention the testimonies of his two other witnesses, Eduardo Bartolo and Pilar David,
on which the trial court and the Court of Appeals relied for their finding that there was no longer any unlawful
aggression when petitioner shot the victims. Bartolo testified that on March 28, 1981, he heard shots and the
sound of stones being hurled. When he stepped out of his house to find out what was going on, he saw
petitioner near the gate of their compound, aiming his gun at the Nora brothers. For her part, Pilar David,
mother of petitioner, told the court that because she heard gunshots, she went to the gate of their compound
to see what was going on. She said she saw petitioner getting inside the gate of the compound.
Another defense witness, Inocencio Antonio, testified that the victims were rushing toward petitioner
when they were at the corner of Flerida and Kapitan Tiago Streets. Antonio said:
ATTY. CRESCINI: [Defense Lawyer]
Q

Where were those teenagers numbering 5 to 6 at that time that Jake David was about to fire those two
(2) last shots?

At the corner of Flerida and Kapitan Tiago Streets and they were rushing towards Jake David, sir. [7]

The testimonies of these witnesses belie petitioners claim that he shot the Nora brothers because they
had come dangerously close to getting inside their house, having in fact entered their compound. Indeed, only
Florthelito Vergara corroborated petitioners testimony that he shot the victims because they had come close
to their house by getting inside their compound.
The defense tries to explain the contrary testimonies of the witnesses by pointing out that there are
actually two compounds - a big compound fronting Flerida Street, which is occupied by his uncles houses, and
a small one in which petitioners parents live. It claims that petitioner shot the Noras outside the small, but
inside the big, compound. But, as the Court of Appeals held:[8]
. . . . No matter how the defense try to belabor the issue by claiming in its reply brief that there were in
fact two (2) compounds . . . the evident fact remains that the victims were shot not in the vicinity of
appellants residence as claimed by the defense but in the streets . . .
Petitioner contends that between the prosecution testimony and his testimony which is corroborated by
two disinterested witnesses for the defense, their testimonies should be preferred. He cites the ruling
in People v. Quiritan:[9]
In a serious charge of murder, the guilt of the accused cannot be predicated on delayed and even
inconclusive testimonies of alleged eyewitnesses which manifest signs of fabrication.
But, in that case, the delay in producing the witnesses (two years), coupled with the generally weak and
confusing testimonies given by them, showed that their statements had been concocted. There is nothing to
show that the testimonies of prosecution witnesses in this case were fabricated. The Quiritan case is a very
different case from that at bar.
Findings of the trial court on the credibility of witnesses are entitled to great respect because it has the
opportunity to observe the deportment of the witnesses and their manner of testifying. [10] The decision of the
trial court in this case is notable for its painstaking analysis of the evidence of the parties. Its conclusion that
the prosecution witnesses were more credible than the defense witnesses should be upheld in the absence of
proof that it has overlooked certain important matters as to the credibility of the witnesses.

In shooting the victims, petitioner was not acting to protect himself but retaliating for the insult and
physical violence he had received at the hands of the victims and their group. In retaliation, the aggression
that was begun by the injured party has already ceased when the accused attacks him. In self-defense, the
aggression still exists when the aggressor is injured or disabled by the person making the defense.[11]
In this case, defense witness Inocencio Antonio said that the victims and their companions were already
running away because they saw petitioner armed with a gun. The unlawful aggression had thus already
ceased when the latter fired at them. As Antonio testified:
ATTY. CRESCINI:
Q: Now, what did those teenagers, do after Jake David fired two (2) warning shots in the air?
A:

They were frightened and retreated towards Flerida Street and some at Kapitan Tiago Street, sir.

Q: How about Jake David, what did he do when those teenagers ran some to Flerida Street and other [sic]
at Kapitan Tiago Street?
A:

He advanced up to the corner of Flerida and Capitan Tiago Street, sir.[12]

An act of aggression, when its author does not persist in his purpose, or when he discontinues his
attitude to the extent that the object of his attack is no longer in peril, is not unlawful aggression
warranting self-defense.[13]
Second. Petitioner claims that the appellate court failed to consider exculpatory facts in his favor.
1. Petitioner claims he was injured and that his injuries, although minor, show that he was attacked by
the Noras, for which reason he filed a complaint for frustrated homicide against them in the fiscals office.
This fact was not overlooked by the appellate court. However, it found that While the accused was
indeed mauled and beaten up by the deceased and his companions, the aggression stopped when the accused
was able to free himself from the assault of the group and thereafter sought refuge in his house.[14]
2. Petitioner felt depressed after the shooting. He vomited and could not eat and had to be
hospitalized. These circumstances show that he is not a killer at heart and certainly not the villain that the
lower court pictured him to be. Furthermore, petitioner was so afraid he had to close his eyes in firing his
gun. Proof of this is that Narciso Nora was only hit at the ankle.
The undisputed fact is that the petitioner fired four shots, one a warning shot and three others directed at
the victims. Two (2) of the three (3) shots directed against the victims hit their marks. One bullet killed Noel
Nora and the other almost killed Narciso Nora, Jr. If the testimony of the prosecution witnesses is to be
believed, the third bullet almost hit the zipper of Arturo Nora. This fact belies petitioners assertion that he
fired the gun with his eyes closed and only to defend himself.
The fact that one shot hit Noel Nora on the chest, while the other hit Narciso, Jr. only on the ankle, could
be due to petitioners nervousness and unsteady hand, but not to the fact that he did not really mean to shoot
them.
Petitioner said he fired warning shots even as he warned them not to come near because, up to the last
moment, he did not want to shoot the victims. Both the trial court and the Court of Appeals gave no weight
to this claim, apparently because of the inconsistency in the testimonies of the defense witnesses. Petitioner
said he fired only one warning shot:
ATTY. CRESCINI:
Q: You declared that when you saw them approaching and taking advantage of your having slipped, they
were armed and you felt very afraid and nervous, what did you do when you saw them approaching?

WITNESS JOAQUIN DAVID

A:

I fired the gun upwards.[15]

But defense witness Inocencio Antonio said petitioner fired two warning shots:
ATTY. CRESCINI:
Q: Now according to you, he came out with a gun and fired two (2) shots, in what direction, did he fire
those two (2) shots?
A:

In the air, warning shots.

Q: Now what did those teenagers, do after Jake David fired two (2) warning shots in the air?
A:

They were frightened and retreated towards Flerida Street and some at Kapitan Tiago Street, sir. [16]

Antonio later tried to correct his mistake but in doing so, only succeeded in showing that he had
lied. Testifying again on October 29, 1985, Antonio said:
ATTY. CRESCINI:
Q: You testified during the last hearing that you heard two (2) warning shots on the evening of March 28,
1981, do you remember that?
A:

Yes, sir.

Q: What made you say that there were, I am referring to the first two (2) warning shots, what made you
say that they were warning shots?
A:

I remember that I did not hear two (2) shots but only one, sir.

Q: What made you say that the one (1) shot was a warning shot?
A:

Because the gun was pointing upward, sir.[17]

The inconsistency in the testimonies of the defense witnesses so undermined their credibility that both
trial court and the Court of Appeals disregarded the testimonies.
3. It is claimed that petitioner is effeminate while in contrast, the deceased Noel Nora, his brother Lito,
and a John Doe were bullies who, even at a very young age, had already been charged with slight physical
injuries in two cases filed in the Municipal Court of Malabon.
The purpose is apparently to show the bad moral character and troublesome nature of the deceased and
his brothers, and thereby to show the improbability of the offenses charged pursuant to Rule 130, 51 of the
Revised Rules on Evidence. It is true that where self-defense is claimed and the character of the slaying is
doubtful, evidence of the violent and dangerous character of the deceased is admissible for the purpose of
determining whether the deceased or the accused was the aggressor.[18] The fact, however, is that the cases
filed against the deceased had been dismissed. No inference of the violent character of the victims can be
drawn from the mere fact that criminal cases had been filed against one of them.
Third. It is argued that, at any rate, petitioner should have been given credit for incomplete selfdefense. It is not stated what element of self-defense is absent to make it incomplete. Be that as it may, our
finding that there was no longer any unlawful aggression when petitioner shot the victims rules out the
possibility of self-defense, whether complete or incomplete.
Petitioner further contends that certain mitigating circumstances, besides voluntary surrender, should
have been considered in his favor, to wit: (a) that sufficient provocation or threat on the part of the offended
party immediately preceded the act;[19] (b) that he acted in the immediate vindication of a grave offense

committed against him;[20] (c) that he acted upon an impulse so powerful as to produce passion or
obfuscation.[21]
The mitigating circumstance of having acted in the immediate vindication of a grave offense may be
appreciated. As the trial court and the Court of Appeals found, the petitioner had been beaten up by the
Noras and their companions. Although the unlawful aggression had ceased when petitioner shot the Nora
brothers, it was nonetheless a grave offense for the vindication of which petitioner may be given the benefit
of a mitigating circumstance. As petitioners mother testified:[22]
ATTY. RODRIGUEZ: [Private Prosecutor]
Q: Did you ask your son who fired the shots?
A:

I told him, Ikaw ba, Jake? I told him, Are you the one? Pinagtulung-tulungan nila po ako kasi.

But the mitigating circumstances of passion or obfuscation and sufficient provocation cannot be
considered apart from the circumstance of vindication of a grave offense. These circumstances all arose from
one and the same incident, i.e., the attack on the petitioner by the victims and their companions, so that they
should be considered as one mitigating circumstance.[23]
Nor is the fact that petitioner has not shown himself to be incorrigible a ground for reducing the penalty
on him, as the Court of Appeals held in its resolution on the motion for reconsideration. This is a ground for
suspension of judgment of youthful offenders, i.e., those over 9 but under 18 years of age,[24] which of course
could no longer be ordered since at the time the trial court rendered its decision petitioner was already over
18 years of age. Clearly, this is not a mitigating circumstance and should not be used as basis for reducing the
penalty.
One circumstance not raised by the defense but evident from the record of this case is minority. In his
statement to the police given on April 2, 1981, petitioner gave his personal circumstances as
follows: Joaquin David y Ejercito, 17 taong gulang, 2nd year college, binata at naninirahan sa 12-C Flerida
St., Acacia, Malabon, Metro Manila.[25] At the hearing on November 11, 1987, petitioners mother
stated that he was 16 or 17 years old when the shooting incident happened:
ATTY. RODRIGUEZ:
Q: You know for a fact that your son Jake being only 17 on March . . . .
A:

16 or 17.

Q: Because he was only 16 or 17, as a young man and quite curious, you know for a fact that sometimes
your son got hold of it?
A:

I never saw him hold the gun of his father. I never for an instance saw him hold the gun of his father. [26]

When the petitioner testified on March 11, 1987, he gave his age at that time as 22 years old. [27]
It is thus clear that on March 28, 1981, when the crime was committed, he was only 17 years old. We
have held in many cases[28] that if the accused alleges minority and the prosecution does not disprove his
claim by contrary evidence, such allegation can be accepted as a fact. Thus, in United States v.
Bergantino,[29] the accused testified that she was below 15 when the crime was committed. This was
corroborated by her mother and her husband. No other evidence, such as the baptismal certificate, was
presented to support this claim. The prosecution did not offer any contradictory evidence. This Court held:
While the evidence upon this point is not entirely satisfactory, yet it is sufficient to raise a reasonable
doubt upon this material question in the case, to the benefit of which the defendant is entitled. The
baptismal certificate or other evidence of this character would have been much more satisfactory to

the court, and, if obtainable, should have been introduced. Neither the prosecution nor the defendant
saw fit to introduce such evidence.
Any doubt in respect of the age of the accused is resolved in his favor. In United States v. Barbicho,[30] it
was held:
In regard to the doubt as to whether the accused is over or under 18 years of age, and in the absence of
proof that on the day he committed the crime he was 18 years old, he must perforce be considered as still
under that age, and therefore, the mitigating circumstance mentioned in paragraph No. 2 of article 9 of the
code should be applied in his favor . . . .
In United States v. Agadas,[31] this Court similarly held:
While it is true that in the instant case Rosario testified that he was 17 years of age, yet the trial court
reached the conclusion, judging from the personal appearance of Rosario, that he is a youth 18 or 19 years
old. Applying the rule enunciated in the case just cited, we must conclude that there exists a reasonable
doubt, at least, with reference to the question whether Rosario was, in fact, 18 years of age at the time the
robbery was committed. This doubt must be resolved in favor of the defendant. . . .
There are therefore present in this case the privileged mitigating circumstance of minority and two
ordinary mitigating circumstances (voluntary surrender and immediate vindication of a grave
offense). Because of the presence of the privileged mitigating circumstance of minority, the penalty
of reclusion temporal should be reduced by one degree toprision mayor, pursuant to Art. 68 of the Revised
Penal Code. The penalty of prision mayor should further be reduced to prision correccional because of the
presence of two ordinary mitigating circumstances without any aggravating circumstance, pursuant to Art. 64,
par. 5 of the same Code. Applying the Indeterminate Sentence Law, petitioner should be made to suffer
imprisonment, the minimum of which should be within the range of arresto mayor and the maximum of which
within the range of prision correccional.
On the other hand, for the crime of frustrated homicide, the penalty imposable for the consummated
crime of homicide should be reduced by one degree, i.e., to prision mayor. Because of the presence of one
privileged mitigating circumstance and two ordinary mitigating circumstances and no aggravating
circumstance, the penalty of prision mayor should be reduced by two degrees, i.e., to arresto mayor.
With respect to the award of damages, the amount of P30,000 awarded as indemnity for the death of
Noel Nora should be increased to P50,000.00 pursuant to current rulings.[32]But the award of P37,000.00 for
actual damages should be reduced to P22,000.00. As held in Fuentes, Jr. v. Court of Appeals,[33] only expenses
supported by receipts and which appear to have been actually expended in connection with the death of the
victim should be allowed. The award of actual damages cannot be based on the allegation of a witness
without any tangible document to support such claim. In this case, only P22,000.00 is supported by a receipt
(Exh. X) for funeral expenses.
The amount of moral damages (P30,000.00) and attorneys fees (P20,000.00) appear to be reasonable
and may therefore be allowed.
With respect to the damages awarded for the shooting of Narciso Nora, Jr., the award of P8,728 as actual
damages should be reduced to P1,928.65 as the receipts (Exhs. Y and Z) presented show the payment of this
amount only to the National Orthopedic Hospital.
The award of P20,000.00 as moral damages appears to be just and reasonable and therefore should be
allowed under the circumstances.

WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the MODIFICATION that, for the
crime of homicide, the petitioner is sentenced to suffer an indeterminate penalty of 6 months of arresto
mayor, as minimum, to 6 years of prision correccional, as maximum, and, for the crime of frustrated homicide,
he is sentenced to suffer the penalty of 6 months of arresto mayor.
In addition, petitioner is hereby ordered to pay the following:
1. To the heirs of the deceased Noel Nora, the sums of P50,000.00, as indemnity for the death of
Noel Nora; P22,000.00, as actual damages; P30,000.00, as moral damages, andP20,000.00, as
attorneys fees;
2. The sums of P1,928.65, as actual damages, and P20,000.00, as moral damages and P20,000.00, as
attorneys fees to Narciso Nora, Jr. for wounding the latter.
SO ORDERED.
Regalado (Chairman), Melo, Puno and Martinez, JJ., concur.

[1]

CA Rollo, pp. 289-290.

Per Justice Eduardo R. Bengzon and concurred in by Justice Lorna S. Lombos-de la Fuente chairman) and
Justice Quirino D. Abad Santos, Jr.
[3]
Rollo, pp. 43-44.
[4]
Per Justice Quirino D. Abad Santos, Jr. and concurred in by Justice Manuel Herrera, and Justice Ricardo J.
Francisco.
[5]
Id., p. 21.
[6]
Rollo, pp. 41-42.
[7]
TSN, p. 6, Oct. 29, 1985.
[8]
Rollo, p. 41.
[9]
197 SCRA 32, 43 (1991).
[10]
People v. Cabiles, 248 SCRA 207 (1995).
[11]
1 LUIS B. REYES, THE REVISED PENAL CODE 153-154 (1993).
[12]
TSN, p. 14, July 29, 1985.
[13]
People v. Macariola, 120 SCRA 92 (1983).
[14]
Rollo, p. 42.
[15]
TSN, pp. 28-29, March 25, 1987.
[16]
TSN, p. 14, July 29, 1985.
[17]
TSN, p. 3, Oct. 29, 1985.
[18]
See Ricardo J. Francisco, Evidence: Rules of Court in the Philippines 377 (1994).
[19]
Revised Penal Code, Art. 13, par. 4.
[20]
Id., par. 5.
[21]
Id., par. 6.
[22]
TSN, pp. 26-27, Nov. 11, 1987.
[23]
See People v. De los Santos, 85 Phil. 870 (1950); People v. Dagatan, 106 Phil. 88 (1959).
[24]
Formerly Art. 80 of the Revised Penal Code and now Art. 192 of the Child and Youth Welfare Code (P.D.
No. 603, as amended).
[25]
Exh. 1 for the Defense - Sworn Statement of Joaquin David.
[26]
TSN, p. 25, Nov. 11, 1987.
[27]
TSN, p. 2, March 11, 1987.
[28]
E.g., People v. Villagracia, 226 SCRA 374 (1993); People v. Regalario, 220 SCRA 368 (1993).
[2]

[29]

3 Phil. 118 (1903).

13 Phil. 616, 621 (1909).
[31]
36 Phil. 246 (1917).
[32]
People v. Sumaoy, 263 SCRA 460 (1996).
[33]
253 SCRA 430 (1996).
[30]

SECOND DIVISION

[G.R. No. 149538. July 26, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. VINCENT HENRY CHUA, appellant.

DECISION
CALLEJO, SR., J.:
Alegria Marie Antonette L. Luciano filed a petition with the Regional Trial Court in Angeles City, Pampanga
for the confinement of her son, appellant Vincent Henry Chua, in a drug rehabilitation center for drug
dependents. On May 20, 1994, the trial court issued an Order granting the petition and ordering the
confinement of the dependent at the GabayDiwa Drug Rehabilitation Center in Angeles City.[1] However, on
June 18, 1994, the appellant escaped from the center. The trial court, thereafter, issued an Order
recommitting him to the center on June 24, 1994,[2] but he again escaped.
On August 24, 1994, Magalang, Pampanga celebrated its town fiesta and there was a carnival in Barangay
San Nicolas II, Magalang. A closed structure called Wall of Danger[3] was constructed inside the carnival
grounds where stunts were performed.[4] The operator of the carnival, Alfonso Verances, had a tent inside the
grounds where he and the following helpers slept: Francis Ryan Manabat, who was about twelve years old,
Rodelio Santos, Michael (Vandolph) Santiago, Romeo Ignacio (Verances) and Jun Estanislao. Danilo Bondoc,
who was then about eleven years old, would go to the carnival grounds and would even run errands for the
helpers.
At about 1:00 a.m. on August 28, 1994, Manabat was awakened when he heard a woman shouting,
Magnanakaw! Magnanakaw! Santiago, Ignacio and Estanislao were also roused from their sleep. They
asked who the robber was and the woman replied that the culprit was a boy. Santiago, Estanislao and Ignacio
found Bondoc hiding in the ticket booth. They tied his feet and hands with a rope and forced him to confess,
but Bondoc did not relent.
Momentarily, the appellant arrived and brought Bondoc to a covered structure where he was kept
hanging from the top of the ladder. He placed a live electric wire on Bondocs palms and forced the latter to
confess to stealing from the woman. The boy still refused to confess. The appellant untied Bondoc and
brought him to a booth where darts are thrown at balloons. He then ordered Ignacio, Santiago and Estanislao
to guard Bondoc. The appellant then got a shovel and dug a knee-deep pit near the wall of their house which
abutted the carnival grounds. Bondoc was able to flee, but stepped on a G.I. sheet which created noise. The
appellant ran after him and brought the boy back to the covered structure. The appellant then repeatedly
boxed the boy and hit the latter with a piece of wood (dos por dos) on the neck and jaw. Bondoc fell, barely
conscious.
Santos, who by then, had also been awakened by the commotion, saw the appellant hitting Bondoc with
the piece of wood. The appellant then brought the boy to the pit and buried him alive. The appellant then
ordered Manabat, Ignacio, Santiago, Estanislao and Santos to disperse, and warned them not to divulge the
incident to anyone; otherwise, they would be his next victim. The five helpers went back to sleep.
In the meantime, on August 29, 1994, the RTC issued an Order for the recommitment of the appellant to
the rehabilitation center.[5] A warrant for his arrest for robbery was also issued by the RTC in People vs. Henry
Chua, Criminal Case No. 94-08-58.[6]

On September 1, 1994, Ignacio reported the death of Bondoc, at the hands of the appellant, to Jun Sia, a
radio commentator and a reporter of the Central Luzon Times, and the latters co-worker, Bernie Chavit. He
also reported the killing to the policemen of Police Station No. 1 in Angeles City. Sia, Chavit and SPO2 Celso de
Castro and some policemen of the Magalang police station rushed to the carnival grounds and had the
cadaver of Bondoc exhumed. Photographs of the exhumation and the cadaver were taken.[7] The policemen
then arrested the appellant and brought him to the police station where Ignacio gave a sworn statement to
SPO4 Leonardo C. de Leon identifying and pointing to the appellant as the assailant.[8]
Dr. Suzette Yalung, the Municipal Health Officer, performed an autopsy of the cadaver of Bondoc and
signed her Report containing her findings, viz:
GENERAL APPEARANCE: Body in a state of decomposition.
HEENT: Caved-in fracture of (L) fronto-parietal area of the skull, caved-in fracture of left lower jaw (+) 6-inch
curvilinear abrasion, (longitudinal) on (L) anterior neck, (+) fracture of cervical vertebrae.
CHEST/ABDOMEN: (+) discoloration & bloaching (sic) all over, body in a state of decomposition.
EXTREMITIES: No fracture, all extremities in flexed position.
CAUSE OF DEATH: Cardio-respiratory arrest due to asphyxiation and severe hemorrhage [Fracture of cervical
vertebrae, (L) lower jaw & (L) fronto-parietal area of the skull.][9]
On September 8, 1994, an Information was filed with the Regional Trial Court of Pampanga, Branch 57,
charging Chua with murder. The accusatory portion of the Information reads:
That on or about the 28th day of August 1994, in Brgy. San Nicolas II, Municipality of Magalang, Province of
Pampanga, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with
intent to kill, qualified by treachery, abuse of superior strength and cruelty, did then and there, willfully,
unlawfully and feloniously assault, attack, box and hit with a piece of wood, a 12-year-old minor Danilo
Bondoc y Ponay, without justifiable reason therefor and as a result of the continuous assault on the person
of Danilo Bondoc y Ponay by the accused, said Danilo Bondoc y Ponay sustained fatal and serious physical
injuries all over his body and accused, thereafter, threw the body of said Danilo Bondoc y Ponay into a hole
dug by the accused and covered the same, resulting to the death of said Danilo Bondoc y Ponay shortly
thereafter, to the damage and prejudice of the heirs of Danilo Bondoc y Ponay.
Contrary to law.[10]
The appellant, assisted by counsel, was duly arraigned and entered a plea of not guilty.

The Case for the Appellant

The appellant admitted to being at the scene of the crime, but claimed that Bondocs assailants were
Ignacio, Santiago and Estanislao. He testified that at about past midnight ofAugust 28, 1994, he was in the
office of the manager at the carnival grounds at Marves Subdivision, where he and his parents and the Chief of
Police of Magalang, resided. He was playing tongking with the helpers of the carnival. He left for a while and
when he returned, saw his cousin, Jomar Basa, and Romeo Ignacio, inside the covered structure talking about
Bondoc who was hanging at the top of the ladder. He wanted the boy released, but Ignacio refused and

assured him that nothing would happen to the boy. Ignacio tied up Bondoc and brought him to the dart
balloon booth. Ignacio also kicked Bondoc and ordered Santiago and Estanislao to tie up
Bondoc. Santiago and Estanislao did as they were told, and forced him to lie down on his stomach. When he
remonstrated to Ignacio, the latter went out to the covered structure and took a .45 caliber gun. Ignacio
warned him not to interfere with the carnival helpers. He told Santiago to give biscuits to the boy, but
Estanislao objected and even warned him that he was a police officer.
The appellant then left, hearing Bondocs cries as he walked away. When he returned to the place, he
saw the boy being kicked on his feet and palms by Estanislao andSantiago. He asked that Bondoc be released,
but his request went unheeded. On orders of Ignacio, Estanislao got a shovel, and dug a hole with Santiagos
help, while Ignacio watched over Bondoc. Bondoc was able to run away, but stepped on a G.I. sheet which
created noise and alerted the three. Ignacio, Santiago and Estanislao ran after the boy, collared him and
brought him to the covered structure where he was electrocuted by Ignacio with a wire
that Santiago produced. The appellant protested to this, but Ignacio told him that even if he protested, he
would still be implicated anyway.
By this time, the commotion had attracted several bystanders, male and female. Ignacio covered Bondocs
mouth with a handkerchief which was supplied by Santiago. The boy was then brought to a hole where Ignacio
hit him with a piece of wood. Bondoc fell into the hole, whereupon Ignacio buried him. On orders of
Ignacio, Santiago and Estanislao placed garbage on top of the boys grave. Ignacio warned the appellant that if
he revealed the incident to others, he would be implicated. The appellant then went home and slept. He was
awakened by his uncle, Jerry Luciano, who told him that policemen were looking for him. He was brought to
the police station where he was detained and charged for the death of Bondoc.
Jomar Basa corroborated, in part, the appellants testimony, but testified that the helpers in the carnival
grounds, aside from Ignacio, Santiago and Estanislao, as well as Darwin David and Oliver Santos, witnessed the
crime. He also saw Bondoc being tied and kicked. He asked Ignacio to turn over custody of Bondoc to him, but
Ignacio refused. He left the carnival grounds along with Santos and David. When they returned, they saw
Lovely Ignacio, Romeo Ignacios wife, and asked where the boys body was, and the latter replied that Bondoc
had gone home already.
The appellant presented Rodolfo La Madrid, Geoffrey Alegre, Oliver Santos, Macario Paulino, Jocelyn
Roberto and Rufino Ang, to corroborate his testimony and fortify his defense.
After trial, the court rendered judgment convicting the appellant of the crime charged. The court
declared that the appellant was a minor when the crime was committed; hence, was entitled to the privileged
mitigating circumstance of minority under Article 68 of the Revised Penal Code. The decretal portion of the
decision reads:
WHEREFORE, finding the accused Vincent Henry Chua guilty beyond reasonable doubt of the crime of Murder,
the Court hereby sentences him to suffer the penalty of 17 YEARS, 4 MONTHS and 1 DAY OF RECLUSION
TEMPORAL, as minimum, to RECLUSION PERPETUA, as maximum, with full credit of his preventive
imprisonment.
As to the civil liability, the accused will indemnify the family of the victim as follows:
a. Actual damages in the amount of FIFTY THOUSAND PESOS (P50,000.00);
b. Moral damages in the amount of FIFTY THOUSAND PESOS (P50,000.00);

c. Exemplary damages under Art. 2230 of the Civil Code of an appropriate amount of TWENTY THOUSAND
PESOS (P20,000.00); and
d. Attorneys fees in the amount of FIFTEEN THOUSAND PESOS (P15,000.00).[11]
On appeal, the Court of Appeals rendered judgment affirming the judgment of the trial court, but applied
Article 63 of the Revised Penal Code and increased the penalty toreclusion perpetua. The appellate court
considered the minority of the appellant merely as a generic mitigating circumstance, and concluded that such
minority could not be considered a generic and a privileged mitigating circumstance at the same time. The
appellate court certified the case to this Court for review, conformably to Rule 124, Section 13 of the Revised
Rules of Criminal Procedure.

The Present Appeal

The appellant did not file any supplemental brief with this Court; neither did the appellee.
In his brief with the Court of Appeals, the appellant averred as follows:
I
THE TRIAL COURT ERRED IN DISREGARDING THE FACT THAT THERE WAS A COVER-UP DONE BY THE POLICE
AUTHORITIES OF MAGALANG, PAMPANGA, AS TO THE REAL IDENTITIES OF THE CULPRITS.
II
THE TRIAL COURT ERRED IN NOT HOLDING THAT THE VERSION OF THE PROSECUTION AS TO THE ALLEGED
INCIDENT IS REPLETE WITH IMPROBABILITIES AND CONTRARY TO HUMAN EXPERIENCE.
III
THE TRIAL COURT ERRED IN NOT HOLDING THAT THE PROSECUTION EYEWITNESSES ARE ACTUATED WITH BAD
MOTIVE IN IMPLICATING THE ACCUSED-APPELLANT AS THE PERPETRATOR OF THE CRIME AND IN NOT
DISCREDITING THE EYEWITNESSES OF THE COMMISSION OF THE CRIME.
IV
THE TRIAL COURT ERRED IN DISREGARDING THE TESTIMONY OF DEFENSE WITNESS RODOLFO LA MADRID.
V
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME OF MURDER.
VI
THE TRIAL COURT ERRED IN NOT CONSIDERING THE MITIGATING CIRCUMSTANCE OF VOLUNTARY SURRENDER
IN FAVOR OF THE ACCUSED-APPELLANT.
VII

THE COURT A QUO ERRED IN ORDERING THE ACCUSED-APPELLANT TO PAY P50,000.00 AS ACTUAL
DAMAGES, P50,000.00 AS MORAL DAMAGES, P20,000.00 AS EXEMPLARY DAMAGES AND P15,000.00 AS
ATTORNEYS FEES.[12]
The appellant asserts that the testimonies of Manabat and Sia are incredible. He contends that he was
only seventeen years old when the crime was committed and, as such, he could not have committed the crime
alone. He insists that there must have been others who assisted him in electrocuting the victim and in digging
a knee-deep hole in which the victim was buried. He laments that the trial court even ignored the fact that
Ignacio was convicted of carnapping.[13]
The appellant also avers that he could not have committed the crime in the presence of onlookers, and in
a place which was only a few meters away from the police station. The appellant claims that police officers
Remigio Layug and Leonardo C. de Leon covered-up the investigation because despite reports that
Ignacio, Santiago and Estanislao were involved in the crime, they were not investigated nor included in the
charge of murder against the appellant. The police officers were even administratively sanctioned for their
misconduct.
The appellant contends that the claims of Manabat and Santos, that they refrained from reporting the
crime because they were afraid of the appellant, are incredible. He avers that the prosecution presented
Manabat and Sia as surrebuttal witnesses when Ignacio and Estanislao failed to appear during the preliminary
investigation in the Municipal Trial Court and during the trial in the RTC. Manabats testimony that he was
from Barangay Camias, San Miguel, Bulacan, was belied by Barangay Captain Macario Paulino and his
certification that Manabat and his family were not residents of the said barangay.

The Ruling of the Court

The contention of the appellant has no merit.
First. The trial court gave credence and full probative weight to the testimony of the prosecution
witnesses, Manabat and Santos, viz:
The revelation of Manabat and Santos were confirmed by Dr. Suzette Yalung, the one who made the autopsy
on the cadaver of victim Danilo Bondoc, who testified that the cause of death of the victim was cardiorespiratory arrest and asphyxiation, severe hemorrhage, fracture of cervical vertebrae and left lower jaw and
fracture on the left parietal area of the skull, the very injuries testified to by Manabat and Santos were the
ones found by Dr. Yalung on the body of the victim confirming the authenticity of the formers testimony.
The evidence also disclosed that victim Danilo Bondoc was tortured by the accused when he ran a 110-voltage
electric wire in the palm and feet of the victim and that the victim was also mauled causing severe
hemorrhage in his body.
Viewing the entire testimony of the witnesses for the prosecution, the Court finds the same to be consistent
and corroborated one another, leading this Court to believe the same.
The Court also noted that Francis Ryan Manabat and Rodelito Santos did not waver but stood pat during their
cross-examinations.
The Court did not find any motive for Manabat and Santos to pinpoint the accused as the culprit. There is no
animosity nor bad blood between Manabat and Santos, on one hand, and the accused, on the other hand. In

fact, Manabat and Santos are afraid of the accused because Vincent Henry Chua is a siga and matapang as
per testimony of Rodelito Santos considering the fact that the family of the accused is the owner of the lot
where the peryahan is located.[14]
The Court of Appeals affirmed the findings of the trial court. The well-settled rule is that the findings of
facts of the trial court, especially when affirmed by the Court of Appeals, are conclusive on this Court unless
the trial court ignored, overlooked or misconstrued facts and circumstances which if considered warrants a
revision or reversal of the outcome of the case.[15] We have reviewed the records and find no justification to
deviate from the trial courts findings.
Second. The appellant failed to prove with clear and convincing evidence the physical impossibility of
digging a knee-deep hole in the ground alone, with the use of a shovel. There is no evidence that the soil
where the appellant dug was hard or even strong. At such a youthful age of seventeen years, the appellant
had the physical strength and stamina to dig a knee-deep hole all by himself.
Third. It is futile for the appellant to argue that it was unnatural of him to have committed the crime in full
view of onlookers. Crimes are known to have been brazenly committed by perpetrators undeterred by the
presence of onlookers or even of peace officers, completely impervious of the inevitability of criminal
prosecution and conviction. In this case, the appellant was a drug dependent, an escapee from the
rehabilitation center and had an outstanding warrant for his arrest for robbery, and an Order for his
recommitment to a rehabilitation center.
The appellants bare denials cannot prevail over the positive, straightforward and unwavering
identification made by Santos and Manabat, that the appellant was the sole perpetrator of the crime. Thus,
we agree with the findings and disquisitions of the Court of Appeals, viz:
Accused-appellant further denies having inflicted any injuries on the victim. He claims it was impossible for
him to beat the boy to death and at the same time dig the small grave where the victims body was buried.
The evidence on record does not refute in any manner the capability of the accused to commit such acts of
violence. On the contrary, appellants destructive behavior does not run counter to his psychological profile
brought about by his drug dependency at the time of the incident. The record shows that accused-appellants
own mother Ma. Antoinette L. Luciano had filed with the Regional Trial Court in AngelesCity, a petition for the
voluntary commitment of the accused-appellant in a drug rehabilitation center.

However, accused-appellant escaped from the Gabay Diwa Rehabilitation Center, thereby causing Ronald P.
Balatbat, a psychologist of the said center, to recommend to the Angeles City Regional Trial Court the
recommitment of accused-appellant. Acting on said recommendation, said court in its Order dated June 24,
1994, ordered the recommitment of accused-appellant for continuous treatment. But, again, accused escaped
for the second time, thereby giving rise to another Recommitment Order dated August 29, 1994.

Clearly, on the day of the fatal incident, accused-appellant was a second-time escapee from the drug
dependency rehabilitation program he was sentenced to undergo. This is indicative of accused-appellants
unwillingness to be rehabilitated from his dependency to drugs. Undoubtedly, accused-appellants drug
dependency was responsible for his violent behavior towards the victim.

Accused-appellants drug dependency and troublesome behavior was no surprise to the peryahan workers.
They were aware that the carnival grounds belonged to the family of accused-appellant who resides some fifty
(50) meters away from the peryahan. The proximity of the carnival grounds to the house of accusedappellant made it easy for him to frequent the place during daytime and nighttime as well. The peryahan
workers observed accused-appellant as one that displayed a behavior characterized by them as a bully or
siga. Accused-appellants drug dependency, reputation and influence deterred the peryahan workers,
who were mere transients in Magalang, from intervening while accused-appellant was committing the
crime. This was further bolstered when accused-appellant, who, after burying the victim, threatened the
peryahan workers with harm if they would report what had just transpired to the police authorities. This
explains why prosecution witnesses Romeo Ignacio and Jaime Estanislao were reluctant in divulging any
information relative to the fatal incident while they were still in Magalang, and why they waited until they
were relocated to Angeles before going to the police authorities to report the incident.
Prosecution witnesses Francisco Manabat and Rodelito Santos have positively identified accused-appellant as
the one who inflicted upon the young victim such bodily harm. Manabat vividly recounted the entire incident
from the time the victim was apprehended by the peryahan boys at the instance of a woman vendor to the
time the accused-appellant took custody of the victim and started beating him which led to his untimely
death. Santos who witnessed the accused-appellant struck and hit the victim with a piece of wood on the
neck and jaw, causing the victim to fall down, materially corroborated this. The rule is the detailed testimony
of a witness in a murder or homicide case acquires greater weight and credibility if it corresponds with the
autopsy report.[16]
Fourth. The appellant is not entitled to an acquittal simply because the police investigators did not include
Ignacio, Santiago and Estanislao in their investigation, nor charge them, in tandem with the petitioner, for the
death of Bondoc. The evidence on record shows that the involvement of Ignacio, Santiago and Estanislao was
confined only to the tying of Bondocs hands and feet, on suspicion for robbery. When the appellant arrived
at the scene, he took sole charge, tortured the victim and buried him alive. The policemen found no basis for
charging the other helpers for the death of the victim. In fine, the appellant cannot invoke as basis for his
acquittal the minor and inconsequential involvement of the helpers. We affirm the findings and disquisitions
of the Court of Appeals on this matter, viz:
Anent the first assignment of error, appellant contends that the trial court erred when it totally disregarded
and ignored the March 15, 1995 Decision of the Regional Director of the Philippine National Police Command
III (PNP RECOM 3) in the administrative case filed by the appellants mother, Ma. Antoinette Luciano, against
P/Insp. Romeo Layug and SPO4 Leonardo de Leon of the Magalang Police Station, wherein it found as
haphazard and irregular the investigation conducted by the aforementioned officers involving the death of
Danilo Bondoc.
We do not subscribe to accused-appellants urgings. Precisely, in due course of this case, accused-appellant
had moved for a reinvestigation in order to determine who are the real culprits who killed the 12-yr.-old boy,
which the trial court granted without objection from the prosecution. During the reinvestigation, the
statements of the accused-appellant, together with those of his witnesses, namely, Joemar (sic) Basa and
Oliver Santos, were all re-evaluated. Thereafter, 1st Assistant Provincial Prosecutor Jesus Y. Manarang stood
pat on his finding that a prima facie case for murder exists only with respect to accused-appellant, and
recommended that the Information dated September 2, 1994 filed against the accused ought to be
maintained.[17]

Fifth. The credibility of the testimonies of Manabat and Santos and the probative weight thereof were not
affected by their failure to report the terrifying crime they witnessed, nor by the prosecutions failure to
present Ignacio as witness. As the Court of Appeals declared:
The facts reveal that the peryahan workers were the only witnesses who positively identified the accusedappellant as the one responsible for inflicting the fatal wounds on the victim. The notorious behavior and
influential family background of the accused-appellant were among the reasons, which prevented these
witnesses from reporting the incident to the police authorities in Magalang. Since they were all transients,
they opted to keep their silence until they were able to transfer to Angeles City where the authorities there
were informed of the incident. SPO2 Celso de Castro of the Angeles Police even testified that when the case
was to be turned over to the Magalang Police, Romeo Ignacio was afraid of accompanying them to the
Magalang police station. On the other hand, reporter Jun Sia of the Central Luzon Times testified that when
he asked Romeo Ignacio why he reported the incident to the Angeles Police instead of the Magalang Police,
the latter replied that accused-appellant was influential in Magalang, Pampanga.
What is more apparent is the fact that Romeo Ignacio and Jaime Estanislao were so afraid to appear at the
preliminary investigation after having identified accused-appellant and given their respective statements
on September 1, 1994. Nevertheless, the prosecution was able to present other witnesses in the persons of
Francis Manabat and Rodelito Santos who initially refused to testify against the accused-appellant because
they too were afraid of him. Then again, the two finally changed their minds and thereafter testified as a
consequence of their desire to give justice to the victim.
A witness unwillingness to volunteer information regarding a particular crime due to fear of reprisal is
common enough that it has been judicially declared as not affecting a witness credibility. Neither substantive
nor procedural law requires any person witnessing a crime to immediately report the matter to the proper
authorities or to give his statement thereon. Furthermore, the delay in reporting what a witness knows about
a crime does not by itself render his testimony unworthy of belief if such delay has been adequately
explained. It has, likewise, been held that a witness failure to volunteer information to law enforcement
officers does not necessarily impair a witness credibility, and part of the reason for this is the reticence and
fear of some people of getting involved in a criminal case.
Accused-appellant asserts that the trial courts acquiescence of both the testimonies of Francis Manabat and
Rodelito Santos which it later found credible as against that of defense witness Rodolfo La Madrids rejected
testimony was unfair since both testimonies were belatedly given.
The threats to the lives of Francis Manabat and Rodelito Santos were apparent because their kubols were
constructed on the land owned by the family of the accused-appellant whose place of residence was just a few
meters away from the fence of the carnival grounds. On the other hand, Rodolfo La Madrid was not actually
threatened by anyone from testifying, not even Romeo Ignacio, who, less than a week after the incident, left
for Angeles City with his other fellow peryahan workers. By reason thereof, this Court agrees with the lower
court when it found no cogent reason to give credibility to the belated testimony of Rodolfo La Madrid.
This Court finds no credence in accused-appellants argument that witnesses Francis Manabat and Rodelito
Santos, who are related in some manner with Jaime Estanislao and Romeo Ignacio, were actuated by improper
motive in testifying against appellant.
It would be very difficult to accept the averment of the defense that prosecution witnesses Francisco Manabat
and Rodelito Santos, who were only 14 and 19 years old, respectively, when they testified, maliciously pointed
to accused-appellant as the perpetrator of such a serious crime. Being of tender age, these two could not have

survived a gruelling direct and cross-examination without being detected or exposed, had they decided to use
their imagination in trying to render a detailed account of a murder. Not only did their testimonies stand the
ultimate test of cross-examination but were also in consonance with the other evidence of the prosecution. It
has been repeatedly held that when the issue is one of credibility of witnesses, appellate courts will generally
not disturb the findings of the trial court. It is clear that the two had no other motive but to render justice to
the victim and that of his family.[18]
In sum, we find the decision of the Court of Appeals finding the appellant guilty beyond reasonable doubt
for the death of Danilo Bondoc to be in accord with the evidence on record and current jurisprudence.
The trial court convicted the appellant of murder without stating the qualifying circumstance attendant to
the crime. The trial court also appreciated in favor of the appellant the mitigating circumstance of voluntary
surrender and considered such minority as a mere mitigating circumstance. We shall then modify the decision
of the trial court and the appellate court.
The crime was qualified by treachery. The victim, who was barely thirteen years old, was helpless and
unable to defend himself. His feet and hands were tied while the appellant mauled and kicked him, and hit
him with a piece of wood.[19] The appellant was so depraved that he even electrocuted the victim by placing a
live wire on the latters palms and burying him alive. This is borne by the autopsy report of Dr. Suzette Yalung,
which indicates that the victim died because of cardiac arrest due to asphyxiation. By his detestable acts, the
appellant intended to exacerbate the suffering of the victim. Hence, cruelty was attendant to the commission
of the crime.[20] However, cruelty is absorbed by treachery.
The trial court and appellate court also erred in appreciating the mitigating circumstance of voluntary
surrender in favor of the appellant. He was arrested by the policemen not only for his involvement in the
killing of the victim but also because of the warrant for his arrest for robbery, and the recommitment order
issued by the RTC for escaping from the rehabilitation center.
The appellate court erred, likewise, in appreciating the minority of the appellant merely as a generic
mitigating circumstance. While under Article 13, paragraph 2 of the Revised Penal Code, minority is a
mitigating circumstance, this provision must be construed in relation to Article 68 [21] thereof, which provides
that minority is a privileged mitigating circumstance warranting the reduction of the imposable penalty by one
or two degrees, depending upon the age of the accused. The minority of the accused is not merely a generic
mitigating circumstance but is a privileged mitigating circumstance. Furthermore, in determining the penalty
to be meted on the accused, the trial court must first consider any modifying circumstance attendant to the
crime.
In this case, the appellant was seventeen years old when he committed the crime. Hence, the imposable
penalty must be reduced by one degree, conformably to Article 68 of the Revised Penal Code. The imposable
penalty for murder is reclusion perpetua to death under Article 248 of the Revised Penal Code, as amended
by Republic Act No. 7659. One degree lower than reclusion perpetua to death is reclusion temporal,
conformably to paragraph 2, Article 61,[22] in relation to Article 25 of the Revised Penal Code.
To determine the minimum of the indeterminate penalty, reclusion temporal should be reduced by one
degree, prision mayor, which has a range of from six (6) years and one (1) day to twelve (12) years. There
being no modifying circumstances attendant to the crime, the maximum of the indeterminate penalty should
be imposed in its medium period. The minimum of the indeterminate penalty should be taken from the full
range of prision mayor.
IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY GRANTED. The Decision of the Court of
Appeals affirming the Decision of the Regional Trial Court of AngelesCity, Pampanga, Branch 57, convicting the
appellant Vincent Henry Chua of murder under Article 248 of the Revised Penal Code, as amended by Rep. Act

No. 7659, is AFFIRMED with MODIFICATIONS. Taking into account the minority of the appellant and the
absence of any other modifying circumstance attendant to the crime, he is sentenced to suffer an
indeterminate penalty of from ten (10) years and one (1) day of prision mayor in its maximum period, as
minimum, to fifteen (15) years of reclusion temporal in its medium period, as maximum. The appellant is
ORDERED to pay the heirs of the victim, Danilo Bondoc, Fifty Thousand Pesos (P50,000) as civil indemnity; Fifty
Thousand Pesos (P50,000) as moral damages; and Twenty Five Thousand Pesos (P25,000) as exemplary
damages,[23] conformably to current jurisprudence. No costs.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.

[1]

Exhibit H.

[2]

Exhibit I.

[3]

This was referred to by the prosecution witnesses as Wall of Death.

[4]

Exhibit 1- C.

[5]

Exhibit J.

[6]

Exhibit K.

[7]

Exhibits D to D-4.

[8]

Exhibit B.

[9]

Exhibit C.

[10]

Records, p. 1.

[11]

CA Rollo, pp. 66-67.

[12]

Id. at 14.

[13]

Exhibit 12.

[14]

CA Rollo, p. 62.

[15]

People of the Philippines v. Jerryvie Gumayao y Dahao, G.R. No. 138933, October 28, 2003.

[16]

CA Rollo, pp. 169-171.

[17]

Id. at 167-168.

[18]

Id. at 174-176.

[19]

People vs. Lucena, 356 SCRA 90 (2001).

[20]

People vs. Valdez, 350 SCRA 189 (2001).

[21]

ART. 68. Penalty to be imposed upon a person under eighteen years of age. When the offender is a minor
under eighteen years and his case is one coming under the provisions of the paragraph next to the last
of article 80 of this Code, the following rules shall be observed:
1. Upon a person under fifteen but over nine years of age, who is not exempted from liability by reason
of the court having declared that he acted with discernment, a discretionary penalty shall be imposed,

but always lower by two degrees at least than that prescribed by law for the crime which he
committed.
2. Upon a person over fifteen and under eighteen years of age, the penalty next lower than that
prescribed by law shall be imposed, but always in the proper period.
[22]

ART. 61. Rules for graduating penalties. For the purpose of graduating the penalties which, according to
the provisions of articles 50 to 57, inclusive, of this Code, are to be imposed upon persons guilty as
principals of any frustrated or attempted felony, or as accomplices or accessories, the following rules
shall be observed:

2. When the penalty prescribed for the crime is composed of two indivisible penalties, or of one or
more divisible penalties to be imposed to their full extent, the penalty next lower in degree shall be
that immediately following the lesser of the penalties prescribed in the respective graduated scale.

[23]

People vs. Delim, 396 SCRA 386 (2003).

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-11074

February 27, 1960

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RUFELINO ZAPATA and FERNANDICO TUBADEZA, defendants-appellants.
Ernesto P. Laurel for appellant.
Office of the Solicitor General A. Padilla and Solicitor General I. C. Borromeo for appellee.
ENDENCIA, J.:
Appeal from the decision of the Court of First Instance of Abra convicting Rufelino Zapata and Fernandico
Tubadeza of the crime of murder, as principal and accomplice, respectively, and sentencing the former
toreclusion perpetua, and the latter to an indeterminate penalty of from 6 years, 1 month and 11 days of
prision mayor, as minimum, to 12 years, 5 months and 11 days of reclusion temporal, as maximum, both to
indemnify the heirs of the deceased in the sum of P6,000.
It appears from the evidence on record that on the evening of February 15, 1951, at about eight o'clock,
while Fausta Tubadeza, a sexagenarian, was cutting firewood near her house at the barrio of Camcamiring,
municipality of Dolores, Abra, appellants Rufelino Zapata and Fernandico Tubadeza approached her, and
Zapata, after telling her "You are the old woman who bewitched my wife," repeatedly beat her with a piece
of wood about 2 feet long and 3 inches in diameter, on different part of her body, while Fernandico
Tubadeza dragged her by the arms. Her husband Mariano Bondame, also a sexagenarian, attracted by the
noise outside their house, looked out of the window and saw his wife being dragged by Fernandico
Tubadeza and clubbed by Rufelino Zapata. Mariano Bondame immediately set to go down to help his wife,
but Zapata met him at the stairs and threatened him bodily harm should he intervene. Bondame helplessly
saw his wife being beaten and dragged towards the direction of the house of councilor Simeon Tubadeza,
Bondame then went to the house of Estanislao Elvena to ask for help and followed appellants to the house
of councilor Tubadeza, where he saw his wife already sprawled on the yard uttering, "I am going to die
now," so he approached and embraced her. Fausta then told her husband she had been maltreated and that
some of her teeth were broken.
The evidence further shows that Fausta was taken to the house of councilor Tubadeza, who told appellant
Zapata and one Florencio Pilor to go to Fausta's house, and upon their return they brought a bottle of wine
and a bottle of oil and told the councilor, "Here are the ingredients for witchcraft that we took from her
house." The councilor then wrote on a piece of paper (Exhibit A) a statement that Fausta practiced witchcraft
on Zapata's wife and had the same thumbmarked by Fausta. Likewise Bondame was forced to sign it. Fausta
died that same evening at the house of councilor Tubadeza.
Dr. Paterno Millare who made a post-mortem examination of Fausta's body, found that the cause of her death
was:

Fracture, compound, complicating, Rib 5th, postero-lateral portion, right; Hemorrhage, internal, acute;
Wound, lacerated, lung, right; and Contusion, multiple and ecchymosis, abrasion evulsion, teeth, upper
incisor, canine, jaw, left, and etc.
Appellant Fernandico Tubadeza submitted a defense of alibi, attempting to show that on the night of February
15, 1951, he was in Bantay, Ilocos Sur, in the house of the parents of his wife; while Rufelino Zapata offered
the following defense: That on the night in question, his wife Carolina Mercurio was seriously ill; that in view
of the barking of dogs and whining of pigs in his yard, he went down and saw Fausta Tubadeza, who had a
reputation in their barrio of being a witch, run away; that while he was chasing her, she fell face down; that
when he overtook her, she confessed that he had bewitched her wife, whereupon Zapata took her to the
house of councilor Simeon Tubadeza; that the latter, being a near relative of Fausta and ashamed of her
admission of having practiced witchcraft, kicked her a number of times in her right side; that councilor
Tubadeza then ordered appellant Zapata to fetch her husband Mariano Bondame, and when Bondame arrived
and knew of his wife's admission he became angry and also kicked her a number of times on the right side,
below the armpit; and that councilor Tubadeza then wrote affidavit Exhibit A whereby Fausta assumed
responsibility should Zapata's wife die.
By and large, the issue in this appeal is credibility of witnesses.
Referring to the alibi put up by Fernandico Tubadeza, we give it little or no evidence at all not only because
this kind of defense can be fittingly conceived and conveniently adjusted to suit any time and place ad libitum
but that his witnesses are all his relatives. On the other hand, prosecution witnesses Salvador Turqueza, Relito
Claro and Mariano Bondame positively identified and pointed him as the one who dragged the deceased while
his co-defendant Rufelino Zapata clubbed her.
Appellant Zapata's defense that the deceased died from the hands of Simeon Tubadeza, Florendo Pilor and
her own husband Mariano Bondame, who all kicked her, is likewise unworthy of belief. Although it is true that,
originally, Simeon Tubadeza and Florendo Pilor were included as defendants in the complaint filed before the
justice of the peace, upon reinvestigation of the case, however, the same was dismissed as against them for
lack of evidence and the fiscal had to exclude them from the information. Besides, Mariano Bondame was not
among those originally indicted. It is hard to believe that Mariano Bondame, the aged husband of the
deceased, would ever attempt to harm his wife, le alone kick her several times in the presence of many
people, just for the flimsy reason of having admitted that she was a witch. On the contrary, Bondame
positively testified that he tried in vain to rescue his wife from the hands of appellants when he saw her
beaten up, only to be confronted by Zapata at the stairs and threatened with bodily harm.
Zapata further contends that prosecution witnesses Salvador Turqueza and Relito Claro who testified having
seen him beat the deceased on the back and on the nape, did not tell the truth because Dr. Millare
contradicted them by saying that he did not find any ecchymosis, discoloration or laceration at the back and
nape. We do not, however, find any inconsistency between the two versions, rather they complement each
other, for while these eyewitnesses said that they saw appellant Zapata beat the deceased on the back, Dr.
Millare, in his post-mortem examination found:
External: The body is cold and in rigor mortis. The height is about 4 ft. and 8 inches. The weight is about
100 pounds more or less. There is presence of contusions and abrasions with ecchymosis of the left
face and with avulsion of the teeth, upper incisor and canine, left upper jaw. Presence of a compound
complicating fracture of the 5th rib at the right postero-lateral portion of the chest wall. Presence of
contusions on the anterior portions of the legs and thighs.

Internal: On opening the chest wall, there is a fracture, compound, complicating, of the 5th rib, right,
postero-lateral portion of the chest; with wound, lacerated on the right lung and internal hemorrhage
of the right lung. There is approximately 150 cc of unclotted blood on the right chestcavity. Heart and
left lung are apparently normal.
which evidently shows that the deceased was beaten mercilessly not only on the head but also on different
parts of the body as shown by the avulsion of the teeth, abrasions and ecchymosis on the left face, the
compound fracture of the 5th rib, on the postero-lateral portion. These two eyewitnesses could not be
expected to tell the exact spots where the blows had landed, considering that it was nighttime and those
fleeting moments cannot be recalled with exact precision. At all events, both witnesses are agreed that it was
appellant Zapata who clubbed the deceased.
The Solicitor-General points out that Fernandico Tubadeza should not be held merely as an accomplice as
found by the lower court but as co-principle, because.
It is to be observed that while it may be true as the trial court has stated, that "there is no showing in
what manner Fernandico too part in the torture, so much so that the evidence discloses that only the
accused Rufelino Zapata was provided with a club," yet the established facts that (a) Fernandico
accompanied Zapata in going to the house of the deceased; (b) he held both hands of the deceased
while Zapata was hitting her and (c) he pulled the deceased by the hands while Zapata continued
clubbing her clearly show the existence of concert of design between the two. At any rate, even
granting that there existed no previous understanding between the two appellants, yet it may be
implied from the acts of Fernandico, as stated above, that they had the same unity of purpose in the
execution of the act (People vs. Ging Sam, et al., 94 Phil., 139; People vs. Binasing, et al., 98 Phil., 902).
We agree with the Solicitor-General.
We likewise agree with his observation that evident premeditation is not present in this case, but that abuse
of superior strength should be taken in its stead as the qualifying circumstance for murder, considering that
the deceased was a frail and undersized woman sexagenarian.
As to the aggravating circumstances of disregard of sex and age and nocturnity alleged in the information, we
find that while the evidence fails to show that nighttime was purposely sought by appellants to commit the
crime, it positively demonstrates that they disregarded the age and sex of the deceased, it appearing that she
was a frail woman of 65, weighing only around 100 pounds and only 4 feet and 8 inches in height, while Zapata
and Tubadeza were 32 and 27 years of age, respectively, when the crime was committed.
On the other hand, we believe that appellants are entitled to the mitigating circumstance of lack of
intention to commit so grave a wrong as that committed, as it was evident that they merely wanted to
denounce her as a witch before councilor Tubadeza when she was beaten and dragged to the councilor's
house, but that she received a beating more than she could take, for which she died that same evening. In
addition, the mitigating circumstance of obfuscation should be appreciated in their favor, as we held in U.S.
vs. Makalintal, 2 Phil., 448, and People vs. Balneg, et al., 79 Phil., 805, for it clearly appears that appellants
committed the crime in the belief that the deceased had cast a spell of witchcraft upon the wife of Zapata
which caused her serious illness.
Considering that there are two mitigating circumstances as against one aggravating in the case, appellants are
entitled to the minimum penalty prescribed by Art. 248 of the Revised Penal Code which is reclusion
temporal in its maximum period. Applying the Indeterminate Sentence Law, the penalty that should be

imposed is 10 years and 1 day of prision mayor as minimum, and 17 years, 4 months and 1 day of reclusion
temporal as maximum.
With the above modifications, the decision appealed from is affirmed in all other respects.
Paras, C. J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera and Gutierrez
David, JJ., concur.

THIRD DIVISION

[G.R. No. 120853. March 13, 1997]

PAT. RUDY ALMEDA, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
DECISION
FRANCISCO, J.:
This is a case of homicide.
Petitioner Rudy Almeda was charged with murder before the Regional Trial Court (RTC) of Tandag, Surigao
del Sur in an information which reads as follows:
"That on the 29th day of November 1988, at about 7:30 o'clock in the evening, more or less, inside Bautista's
Food and Snack Inn at Capitol Hills, Tandag, province of Surigao del Sur, Philippines, and within the jurisdiction
of this Honorable Court, the above-named, with intent to kill, treachery and evident premeditation, did, then
and there, willfully, unlawfully and feloniously shoot several times one, CBL Leo Pilapil Selabao, PC Member,
with the use of a caliber 45 nickled pistol, thereby inflicting upon the latter the following wounds, to wit:
1. Gunshot wound 1 cm. in diameter with point of entry 1 cm. lateral to the 6th thoracic cavity, penetrating
lung thru and thru, with point of exit 2 cm. below the left nipple.
2. Gunshot wound 1 cm. in diameter with point of entry at midscapular area left at the level of 4th thoracic
vertebra, penetrating the thoracic cavity, penetrating the heart thru and thru, with point of exit at level of
ziphoid process.
3. Gunshot wound 1 cm. in diameter with point of entry 3 cm. left lateral to the 3rd thoracic vertebra,
posterior chest wall penetrating the thoracic cavity, penetrating the mediatinum thru and thru. Slug lodged
skin deep.
4. Gunshot wound 1 cm. in diameter with point of entry 4 cm. from midline right occipital area thru and thru
with point of exit preauricular area right.
5. Gunshot wound 1 cm. in diameter with gunpowder tatooing (sic) left infra auricular area thru and thru with
point of exit at the right side of the neck 2 cm. beside the oricoid cartilage.
6. Gunshot wound 1 cm. in diameter with gunpowder tatooing (sic) with point of entry at left side of neck
at level of 4th cervical vertebra, tangential with point of exit at left side of the neck at the level of 5th
cervical vertebra (about 4 cm. from point of entry), which wounds have caused the instantaneous death
of CBL Leo P. Salabao, to the damage and prejudice of his heirs in the following amounts:
P50,000.00
10,000.00
10,000.00

as life indemnity of the victim;

as moral damages; and
as exemplary damages.

CONTRARY TO LAW. (In violation of Art. 248 of the Revised Penal Code.)"[1]
During arraignment, petitioner pleaded not guilty. After trial, the lower court [2] convicted petitioner of
homicide only and appreciated in his favor two mitigating circumstances. [3]The prosecution filed a motion for
reconsideration with regard to the appreciation of the mitigating circumstances. On July 23, 1992, the lower
court granted the motion and modified its earlier decision. The dispositive portion of the modified judgment
reads:
WHEREFORE, finding accused Rudy Almeda GUILTY beyond reasonable doubt of HOMICIDE, and there being
neither mitigating nor aggravating circumstances which attended the commission of the offense, but applying
the Indeterminate Sentence law, the Court hereby sentences him to suffer the indeterminate penalty of
imprisonment ranging from eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14)
years, eight (8) months and one (1) day of reclusion temporal, as maximum; to pay the heirs of the deceased
victim PC Cbl. Leo Salabao the sum of Fifty Thousand (50,000) Pesos as life indemnity and ten thousand (10,
000) Pesos as moral damages, without subsidiary imprisonment in case of insolvency; and to pay the cost.
The bail bond put up by the accused for his provisional liberty is ordered cancelled.
SO ORDERED.[4]
On appeal, the Court of Appeals (CA) affirmed the modified judgment. [5] Hence this petition where
petitioner imputes error to the appellate court in (1) not finding that he acted in defense of strangers, and (2)
in failing to appreciate in his favor the mitigating circumstances of sufficient provocation and voluntary
surrender.
The anterior facts ably supported by evidence on record are summarized by the CA as follows:
On November 29, 1988, at approximately 5:00 o'clock in the afternoon, Julian Herrera, Jr., together with his
two nephews Donato Salabao and PC Constable Leo Salabao arrived at the Bautista's Snack Inn to fetch
Susonte Montero who lived in the same town with Herrera. (TSN, January 22, 1992, p. 6) Herrera asked
Donato to enter the snack inn and inform Montero that they were ready to head home. However, Montero
was in the middle of a drinking spree with Vice Governor Acosta and the latter's companions, one of whom
was Almeda who was the Vice Governor's bodyguard. Upon the invitation of Vice Governor Acosta, Herrera
joined the drinking session and left his nephews in the service jeep. (TSN Jan. 23, 1992, p. 5)
After about an hour, the Salabao brothers alighted and sought shelter in the covered porch of the Bautista's
Snack Inn. (TSN, Jan. 23, 1992, p. 6) Shortly thereafter, Felix Amora, who was among the drinking
companions of the Vice Governor and the then Community Development Officer and Civil Defense
Coordinator, stepped out of the inn and saw the Salabao brothers. Irked because Cbl. Leo Salabao failed to
salute him, Amora confronted the former and ordered Cbl. Salabao to salute him. Cbl. Salabao countered
that since Amora was not known to him as a PC officer and was in civilian clothes he was not compelled to
salute him.(Ibid.) Their argument got the attention of Herrera who went out to pacify them. He then asked
Amora and the Salabao brothers to get inside. (TSN, Jan. 22, 1992, p. 10) Once inside, Cbl. Salabao sat at the
right side of Almeda while Amora sat opposite Almeda at the left side of Herrera. (TSN, Jan. 22, 1992, p. 1214) Donato Salabao, on the other hand, sat near the counter. (TSN, Jan. 23, 1992, p. 7)
Unknown to the Salabao brothers, during the past hour, Herrera had himself been arguing with Vice
Governor Acosta because of the latter's accusation that Herrera was involved in anomalous transactions.
(TSN, Jan. 22, 1992, p. 7-9)

A short time after the Salabao brothers had seated themselves, Herrera's argument with Acosta resumed. At
this juncture Acosta stood up, presumably to pay for the beer he had ordered, and whispered something to
Almeda. Almeda promptly grabbed the barrel of the armalite rifle which Cbl. Salabao carried with him and
pushed it down. (TSN, Jan . 22, 1992, p. 16; TSN, Jan. 23, 1992, p. 8) Simultaneously, Almeda pulled out his
.45 caliber pistol pointed it at Cbl. Salabao's head and shot the latter in the left temple. As Cbl. Salabao
staggered Almeda fired five more shots felling (sic) the former. (TSN, Jan. 22, 1992, p. 20-21; TSN, Jan. 23,
1992 p. 12) After which Almeda picked up Cbl. Salabao's armalite, cocked it and than (sic) pointed it at
Donato Salabao who immediately raised his hands. (TSN, Jan. 23, 1992 p. 13) Almeda then left along with
the Vice Governor and his companions. The following day, at approximately 7:00 o'clock in the morning,
Almeda was arrested by a group of PC Constables. (TSN, Feb. 18, 1992 p. 3-4)[6]
The petition is not impressed with merit. A party who invokes the justifying circumstance of defense of
strangers has the burden of proving by clear and convincing evidence the exculpatory cause[7] that would save
him from conviction. He must rely on the strength of his own evidence and not on the weakness of the
evidence for the prosecution for even if the latter's evidence is weak, it cannot be disbelieved [8] and will not
exculpate the former from his categorical admission as the author of the killing. The Court is convinced upon
scrutiny of the evidence that petitioner failed to discharge this burden.
Article 11 (3) of the Revised Penal Code provides:
"Justifying Circumstance. The following do not incur any criminal liability:
3. Anyone who acts in defense of the person or rights of a stranger, provided that the first and second
requisites mentioned in the first circumstance of this article are present and that the person defending be
not induced by revenge, resentment, or other evil motive "
This circumstance of defense of strangers has three requisites:[9]
(1) unlawful aggression;
(2) reasonable necessity of the means employed to prevent or repel it; and
(3) the person defending be not induced by revenge, resentment, or other evil motive.
The first and crucial requisite for defense of strangers to prosper is absent in this case. Unlawful aggression
presupposes an actual, sudden and unexpected attack or imminent danger on the life or limb of a
person.[10] The mere cocking of the M- 14 rifle by the victim (Cbl. Salabao) without aiming the firearm at any
particular target, is not sufficient to conclude that the life of the Vice-Governor, Herrera or even of Amora
was in imminent danger. A threatening or intimidating attitude per se does not constitute unlawful
aggression.[11] Even a mysterious whisper poses no danger. There is nothing from the act of the victim in
trying to stand up, from which the Court may infer that the life of the person (the Vice Governor) whom
petitioner was allegedly protecting, was under actual threat or attack from the victim.
Besides, assuming that such act of the victim posed an imminent danger, petitioner was able to check if
not neutralize such danger, when with a lightning speed, he held and pointed downward the rifle of the
former and simultaneously poked his .45 caliber at the victim's head. Moreover, when the victim fell down
and staggered after petitioner shot him pointblank in the head, any supposed unlawful aggression by the
former, assuming that it has begun, had ceased. If so, the one making the defense has no more right to kill or
even wound the former aggressor.[12] Accordingly, petitioner's contention that "he was forced to fire five more
shots to defend the life of the Vice-Governor belongs to the realm of fantasy. "[13]

Moreover, the number, location and severity of the fatal wounds suffered by the victim belie the claim of
defense of stranger but is indicative of a determined effort to kill. [14] The victim was hit on the vital parts of his
body head, lungs, heart, chest and neck.[15]
With the absence of unlawful aggression that can be attributed to the victim, it becomes unnecessary to
determine the remaining requisites for they obviously have no leg to stand on. Thus, in this case, the defense
of stranger will not lie, complete or incomplete.[16]
On petitioner's claim that he voluntarily surrendered, the evidence on record disclosed otherwise.
Military men acting on order of their superior officer were tasked to look for and apprehend petitioner. When
they spotted him, they surrounded and captured petitioner. Moreover, before he was captured, petitioner
could have easily surrendered to the Vice Governor or to the police station which is a few blocks from his
house. Yet, the record is bereft of any evidence that he made any effort to do so.
The Court does not also agree with petitioner's claim that he is entitled to the mitigating circumstance of
"sufficient provocation on the part of the offended party immediately preceded the act." [17] To avail of this
benefit, it must be shown that the provocation originated from the offended party, in this case, the victim.
However, the records will attest that it was not the victim who provoked the heated confrontation between
the Vice-Governor and Herrera, as he has nothing to do with their discussions. Neither was it shown that the
victim provoked petitioner into committing the felonious act. Petitioner and the victim do not know each
other, they never met before that incident, and the victim never aimed his rifle at petitioner. They merely sat
beside each other which could hardly be sustained as a provocative act. Moreover, any purported provocation
by the victim on Amora, when the former refused to salute the latter outside the restaurant, could not be
considered as a provocation on petitioner since the latter was not even aware of the saluting incident
between the victim and Amora. Thus, the benefit of the mitigating circumstances under Article 13 (4) of the
Revised Penal Code is unavailable to petitioner.
At any rate, the errors assigned by petitioner assail the factual findings and evaluation of witness's
credibility by the trial court. It is a settled tenet, however, that the findings of fact of the trial court is
accorded not only with great weight and respect on appeal but at times finality, especially when such findings
are affirmed by the CA and provided it is supported by substantial evidence on record. [18] Upon examination of
the evidence in this case, the Court is convinced that no significant facts or circumstances were overlooked or
disregarded by the courts below which if considered would warrant a reversal of the findings and vary the
outcome hereof.[19] With respect to the issue of credibility of witnesses, the appreciation and assessment
thereof is best left to the trial court judge[20] having the unique opportunity of observing that elusive and
incommunicable evidence of the witness' deportment on the stand, a privilege denied to the appellate
court.[21] Again, there is nothing in the record that would indicate material inconsistencies or even
improbabilities in the testimony of prosecution's witnesses. Since no arbitrariness or any cogent reasons were
cited that would call for the reversal of the lower court's evaluation of credibility of witness, such evaluations
bind this court.[22]
WHEREFORE, premises considered, the decision of the Court of Appeals affirming the decision of the trial
court convicting Rudy Almeda of homicide and sentencing him to suffer an indeterminate penalty of eight (8)
years and one ( 1 ) day of prision mayor, as minimum to fourteen (14) years, eight (8) months and one ( 1 ) day
of reclusion temporal, as maximum and to pay the heirs of the victim Leo Salabao, a total of P60, 000.00 as
indemnity and damages is hereby AFFIRMED in toto.
SO ORDERED.
Narvasa, C.J., (Chairman), Davide, Jr., Melo, and Panganiban, JJ., concur.Slx

[1]

CA Decision pp. 3-4; Rollo, pp. 36-37, 43-44.

[2]

RTC Branch 27 in Tandag, Surigao del Sur presided by Judge Ermilindo G. Andal.

[3]

RTC Decision dated May 25, 1992.

[4]

RTC Order dated July 23, 1992, p. 4; CA Decision, p. 5; Rollo pp. 38, 60.

[5]

CA (Fourth Division) decision promulgated February 2, 1995 penned by Justice Hector Hofilea with Justices
Gloria Paras and Salome Montoya, concurring.

[6]

CA Decision pp. 1-2; Rollo, pp. 34-35.

[7]

People v. Cahindo, G.R. No. 121178, January 22, 1997 citing People v. Boniao, 217 SCRA 653 (1993);
People v. De Gracia, supra.; People v. Gregorio, 255 SCRA 380 (1996); People v. Berio, 59 Phil. 533.

[8]

Ibid.; People v. Rivera, 221 SCRA 647 (1993) citing People v. Rey, 172 SCRA 149 (1989) and People v.
Mercado, 159 SCRA 453 (1988).

[9]

Ambrosio Padilla, Criminal Law, Revised Penal Code Annotated, Book I, 1974 ed. p. 231.

[10]

People v. De Gracia, supra.; People v. Boniao, supra.

[11]

People vs. Bobiao, 217 SCRA 653; People vs. Tac-an, 182 SCRA 601; People vs. Bayocot, 124 SCRA 285;
U.S. v. Guy- Sayco, 13 Phil. 923.

[12]

People v. Santos, 255 SCRA 309 (1996).

[13]

CA decision, p. 7; Rollo, p. 40.

[14]

See People v. Santos, 255 SCRA 309 (1996); People v. Bigcas, 211 SCRA 631 (1992); People v. Manlapaz, 55
SCRA 598.

[15]

Exhibit"C"; RTC Records, pp. 108-109.

[16]

See People v. Bautista, 254 SCRA 621 (1996); People v. Osigan, January 20, 1993; People v. Madali, 188
SCRA 69 (1990).

[17]

Article 13(4), Revised Penal Code.

[18]

People v. Bracamonte, G.R. No. 95939, June 27. 1996; People v. Alapan, 315 Phil. 39 (1995); Lee Eng
Hong v. CA, 241 SCRA 392 (1995).

[19]

See People v. Godoy, 250 SCRA 676 (1995); People v. Ballagan, 247 SCRA 535 (1995); People v. Hilario, 244
SCRA 633 (1995); People v. Gapasan, 243 SCRA 53 (1995); People v. Adonis, 240 SCRA 773 (1995).

[20]

Son v. Son, 251 SCRA 556 (1995).

[21]

See People v. Estanislao, G.R. No. 118079, December 24, 1996; People v. De Gracia, G.R. No. 112984,
November 14, 1996; People v. Echegaray, G.R. No. 117472, June 25, 1996; People v. Laurente, 255
SCRA 543 (1995); People v. Faigano, 254 SCRA 13 (1996); People v. Angeles, 315 Phil. 23 (1995);
Sison v. People, 250 SCRA 58 (1995).

[22]

People v. Borja, G.R. No. 114183, February 3, 1997; People v. Tan, Jr., G.R. No. 103134-40, November 20,
1996: People v. Ferrer, 255 SCRA 19 (1996); People v. Kyamko, 222 SCRA 183 (1993).

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 112721 March 15, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EFREN RIVERO, accused-appellant.

DAVIDE, JR., J.:

Accused-appellant Efren Rivero appeals from the decision of 31 August 1993 of the Regional Trial Court (RTC),
Branch 32, at Pili, Camarines Sur, 1 finding him guilty beyond reasonable doubt of the crime of murder and
sentencing him to:
suffer the penalty of Reclusion Perpetua, with all the accessories of the law, to indemnify the
heirs of Leon Gutierrez the sum of P50,000.00 and the further sum of P5,000.00, as and for
funeral expenses, with costs.
He was tried under an information 2 which was filed on 12 April 1983 and whose accusatory portion
reads as follows:
That on or about the 18th day of March, 1982 at Barangay San Ramon, Municipality of Lagonoy,
Province of Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused with intent to kill, with treachery and evident premeditation, armed with
a bolo, did then and there wilfully, unlawfully and feloniously assault, attack and hack with said
bolo, one Leon Gutierrez, who as a result thereof suffered several fatal hack wounds on his
head and other vital parts of his body which directly caused his death.
The facts of the case duly established by the evidence for the prosecution are correctly summarized by the
trial court in the challenged decision as follows:
Efren Rivero is the son-in-law of the deceased Leon Gutierrez; on March 18, 1982 at about
11:30 o'clock in the morning, in San Ramon, Lagonoy, Camarines Sur, while Leon Gutierrez
was walking along a path, with Demetrio San Juan ahead of him, Efren Rivero, from behind
Leon Gutierrez, attacked the latter with a bolo, the first bolo attack hitting the right shoulder
of Leon, and the latter, on facing his assailant, received numerous hack wounds from Efren,
totalling 13 incised wounds in all, detailed in Exh. "A", the autopsy report of Dr. Galan; Leon
fell dead on the site there he was attacked by Efren Rivero; while the attack on Leon was
taking place, Demetrio San Juan moved back and for fear of being attacked by Efren, fled
from the scene of the incident, and immediately reported the matter to Eufemia Gutierrez,
the wife of Leon, who thereupon went to the place of the incident, finding Leon dead on the

path, some 30 meters away from the house of Efren Rivero, and with the help of relatives and
friends, brought the dead Leon to their house; the next day, Leon was autopsied by Dr. Galan,
whose findings are detailed in Exh. "A"; the first bolo wound administered by Efren on Leon's
right shoulder immediately disabled Leon, preventing him from offering any resistance at all. 3
The accused-appellant, on the other hand, claimed self-defense. According to him, at or about 8:00 a.m. of 18
March 1982 he went to the house of the barangay captain of Lojo, Lagonoy, to settle his case with his wife
Myrna Gutierrez, a daughter of Leon Gutierrez, whom he caught in flagrante with her paramour, Danilo
Delfino, in their conjugal home. Myrna did not come, but Leon did. The accused-appellant told Leon that he
will not live anymore with his daughter because she committed adultery. Leon reacted by warning him to be
careful because he would kill him before the end of the day. The accused-appellant was frightened, and he
returned home, arriving at about 9:00 a.m. At about 11:00 a.m., while he was inside his house, Leon Gutierrez,
who was then armed with a bolo, challenged him to get out because he was going to kill him; as a result, he
was struck with fear. Then, Leon forced open the door and entered his house. Due to his fear, the accusedappellant also got a bolo and told Leon not to come any nearer, but the latter cornered him against the wall
and hacked him. Leon was not able to hit him. He then hacked Leon hitting the latter on the right shoulder
thereby immediately disabling him. He could not recall how many more times he hacked the victim because at
that time he had already lost control of his mental faculties. He thereafter surrendered to the police
authorities. 4
The trial court accepted the version of the prosecution. It discredited the version of the accused-appellant
thus:
Upon the other hand, this Court cannot believe the version of Efren Rivero that he killed Leon
Gutierrez in self defense, having been attacked first by Leon in his own house, which is
preposterous, first: because nothing could have been easier than to have established this fact
BY SHOWING TO THE POLICE at the time he surrendered, THE BLOOD STAINS THAT WOULD
HAVE BEEN VISIBLE INSIDE HIS HOUSE, were it true that the wounding of Leon occurred inside
Efren's house; second, Demetrio San Juan testified that the attack occurred at the pathway, and
the deceased was found near the pathway, and 30 meters away from Efren's house.
1. . . . IN FINDING: THE ACCUSED-APPELLANT EFREN RIVERO GUILTY BEYOND REASONABLE
DOUBT FOR THE CRIME OF MURDER.
2. . . . IN NOT APPRECIATING THE CLAIM OF THE. ACCUSED-APPELLANT THAT HE ACTED IN SELF
DEFENSE WHEN THE INCIDENT HAPPENED.
3. . . . IN GIVING FULL CREDENCE TO THE TESTIMONY OF THE LONE EYE WITNESS FOR THE
PROSECUTION. 5
and submits that the lone issue to be resolved is whether he acted in complete self-defense.
Having admitted that he killed his father-in-law, Leon Gutierrez, the burden of the evidence that he acted in
self-defense was shifted to the accused-appellant. It is hornbook doctrine that when self-defense is invoked,
the burden of evidence shifts to the appellant to show that the killing was justified and that he incurred no
criminal liability therefor. He must rely on the strength of his own evidence and not on the weakness of the
prosecution's evidence, for, even if the latter were weak, it could not be disbelieved after his open admission
of responsibility for the killing. He must prove the essential requisites of self-defense, to wit: (a) unlawful

aggression on the part of the victim, (b) reasonable necessity of the means employed to repel the aggression,
and (c) lack of sufficient provocation on the part of the accused. 6
The accused-appellant maintains that he was able to prove all these requisites. The victim, armed with a bolo,
came to his house and challenged him to a fight and, receiving no positive response from him, the victim
thereafter forced himself into his house. 7 The use of a bolo against a bolo-wielding aggressor was a
reasonable means to repel the aggression. Finally, he insists that there was absolutely no provocation on his
part; he was attacked inside his house and the killing took place therein.
We are not persuaded.
The accused-appellant has spun an incredible tale. The victim was found dead some thirty meters away from
the house of the accused-appellant. 8 This place corresponds to that indicated by prosecution witness
Demetrio San Juan as the spot where the victim was attacked by the accused-appellant. There is no credible
evidence that the victim was able to run away from the house; besides, with the thirteen wounds inflicted on
him, it was physically impossible for the victim to have done so. Then too, the accused-appellant presented no
evidence that bloodstains were found in his house although, as correctly observed by the trial court, if indeed
there were bloodstains, he could have pointed them out to the police authorities immediately after he
surrendered to them since they immediately came to the scene of the incident and were even able to recover
the fatal bolo. Moreover, the alleged bolo of the victim was not recovered. It is indubitable to us that the
victim was unarmed and was not killed inside the accused-appellant's house.
Dr. Wilfredo Galan declared that the victim's wound at the back may have been inflicted without his being
forewarned of the attack. Thus:
Q So far, the wound that was directed at the back, can it be possible that the
deceased is about to face or backtrack?
A The first theory is that, the victim is already on his turning back of the body
and the victim does not know anything. That is why there was a striking area at
the back, and he had to face the assailant.
Q But the victim could have avoid or still defend the attack by running away if he
do it if he is not also intending to face the assailant?
A The victim is already out of his senses. That is why I have made that theory. 9
This wound at the back strengthens the testimony of prosecution witness Demetrio San Juan that the
victim was hacked from behind with a sharp bladed long bolo called "ginogon" by the accusedappellant who was following the victim while the latter was walking. 10 The victim sustained thirteen
hack wounds while the accused-appellant suffered no harm or injury despite the fact that the former
was bigger than him. 11 It is an oft-repeated rule that the presence of a large number of wounds on the
part of the victim negates self-defense; instead, it indicates a determined effort to kill the victim. 12
On the basis of the evidence established by the prosecution and the nature of the injuries inflicted on the
victim and considering that the accused-appellant sustained no harm or injury, we are convinced that the
victim was attacked from behind; suddenly, unexpectedly, and without warning. There was, therefore,
treachery in the commission of the crime because the accused-appellant employed means, method, or form in

its execution which tended directly and especially to insure its execution without risk to himself arising from
the defense which the victim might make. 13
Treachery and evident premeditation are alleged in the information as qualifying circumstances; however,
only treachery, which is sufficient to qualify the killing to murder as defined and penalized in Article 248; of
the Revised Penal Code, has been duly established.
On the other hand, we appreciate in the accused-appellant's favor the mitigating circumstances of voluntary
surrender and of sufficient threat on the part of the victim which immediately preceded the killing. 14 It was
duly established that immediately after the incident the accused-appellant surrendered to the police
authorities at the Lagonoy Police Station. 15 And, as could be inferred from his testimony, he killed his fatherin-law because at the house of the barangay captain of Lojo at 8:00 a.m. of 18 March 1982 after he told the
victim that he cannot live anymore with his adulterous wife whom he caught in flagrante with her paramour in
their conjugal home, the victim warned him to be careful because he would kill the latter before the end of
the day. The accused-appellant could have interpreted this warning as a serious threat and may have
prompted him to decide to eliminate his father-in-law before he could carry out such threat.
Nonetheless, any of the two mitigating circumstances was offset by the alternative circumstance of
relationship. 16The remaining mitigating circumstance would then authorize the imposition of the minimum
period of the prescribed penalty. Under Article 248 of the Revised Penal Code, the penalty for murder
is reclusion temporal in its maximum period to death, a penalty which is comprised of three distinct
penalties, viz., a divisible penalty and two indivisible penalties, each of which, pursuant to Article 77 of the
Revised Penal Code, shall form a period. Conformably with Article 64 of the said Code, the proper imposable
penalty in this case would thus be reclusion temporal in its maximum period. Since the accused-appellant is
entitled to the benefits of the Indeterminate Sentence Law, he could be sentenced to an indeterminate
penalty whose minimum shall be within the range of the penalty next degree lower to that prescribed for the
offense proved and whose maximum shall be within that so prescribed, taking into account the modifying
circumstances. This penalty next degree lower is prison mayor in its maximum period to reclusion temporal in
its medium period. The accused-appellant could thus be sentenced to an indeterminate penalty ranging from
ten (10) years and one (1) day of prison mayor maximum as minimum to seventeen (17) years, four (4)
months, and one (1) day of reclusion temporal maximum as maximum.
IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered AFFIRMING the challenged decision of Branch
32 of the Regional Trial Court of Camarines Sur in Criminal Case No. P-2100 (formerly T-198) subject to the
modification of the penalty which is hereby reduced from reclusion perpetua to an indeterminate penalty of
imprisonment ranging from Ten (10) years and One (1) day of prison mayor maximum as minimum to
Seventeen (17) years, Four (4) months, and One (1) day of reclusion temporal maximum as maximum.
Costs against the accused-appellant.
SO ORDERED.
Padilla, Bellosillo, Quiason and Kapunan, JJ., concur.

Footnotes
1 Original Records (OR), 456-457; Rollo, 51-52. Per Judge Nilo A. Malanyaon.

2 OR, 43.
3 OR, 456-457; Rollo, 51-52.
4 TSN, 22 July 1987, 3-7, 10, 13-14.
5 Rollo, 42.
6 People vs. Gomez, G.R. No. 109146, 17 August 1994.
7 Rollo, 43.
8 TSN, 15 July 1985, 7.
9 TSN, 9 October 1984, 18-19.
10 TSN, 1 April 1985, 5-6.
11 TSN, 22 July 1987, 15.
12 People vs. Maceda, 197 SCRA 499 [1991]; People vs. Sagadsad, 215 SCRA 641 [1992]; See
alsoPeople vs. Arroyo, 201 SCRA 616 [1991]; People vs. Nabayra, 203 SCRA 75 [1991]; People
vs. Amania, 220 SCRA 347 [1993]; People vs. Rivera, 221 SCRA 647 [1993]; People vs. Morato,
224 SCRA 361 [1993]; People vs. Singson, G.R. No. 92502, 4 August 1994.
13 Article 14(16), Revised Penal Code; See People vs. Boniao, 217 SCRA 653 [1993].
14 Article 13(7) and (4), respectively, Revised Penal Code.
15 TSN, 6 January 1986, 5.
16 Article 15, Revised Penal Code.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-12883

November 26, 1917

THE UNITED STATES, plaintiff-appellee,

vs.
CLEMENTE AMPAR, defendant-appellant.
Filemon A. Cosio for appellant.
Acting Attorney-General Paredes for appellee.

MALCOLM, J.:
A fiesta was in progress in the barrio of Magbaboy, municipality of San Carlos, Province of Occidental
Negros. Roast pig was being served. The accused Clemente Ampar, a man of three score and ten, proceeded
to the kitchen and asked Modesto Patobo for some of the delicacy. Patobo's answer was; "There is no more.
Come here and I will make roast pig of you." The effect of this on the accused as explained by him in his
confession was, "Why was he doing like that, I am not a child." With this as the provocation, a little later
while the said Modesto Patobo was squatting down, the accused came up behind him and struck him on the
head with an ax, causing death the following day.
As the case turns entirely on the credibility of witnesses, we should of course not interfere with the findings of
the trial court. In ascertaining the penalty, the court, naturally, took into consideration the qualifying
circumstance of alevosia. The court, however, gave the accused the benefit of a mitigating circumstance which
on cursory examination would not appear to be justified. This mitigating circumstance was that the act was
committed in the immediate vindication of a grave offense to the one committing the felony.
The authorities give us little assistance in arriving at a conclusion as to whether this circumstance was rightly
applied. That there was immediate vindication of whatever one may term the remarks of Patobo to the
accused is admitted. Whether these remarks can properly be classed as "a grave offense" is more uncertain.
The Supreme court of Spain has held the words "gato que araaba a todo el mundo," "landrones," and "era
tonto, como toda su familia" as not sufficient to justify a finding of this mitigating circumstance. (Decisions of
January 4, 1876; May 17, 1877; May 13, 1886.) But the same court has held the words "tan landron eres tu
como tu padre" to be a grave offense. (Decision of October 22, 1894.) We consider that these authorities
hardly put the facts of the present case in the proper light. The offense which the defendant was endeavoring
to vindicate would to the average person be considered as a mere trifle. But to this defendant, an old man,
it evidently was a serious matter to be made the butt of a joke in the presence of so many guests. Hence, it is
believed that the lower court very properly gave defendant the benefit of a mitigating circumstance, and
correctly sentenced him to the minimum degree of the penalty provided for the crime of
murder. lawph!1.net
Judgment of the trial court sentencing the defendant and appellant to seventeen years four months and one
day of cadena temporal, with the accessory penalties provided by law, to indemnify the heirs of the deceased,

Modesto Patobo, in the amount of one thousand pesos, and to pay the costs is affirmed, with the costs of this
instance against the appellant. So ordered.
Arellano, C.J., Torres, and Araullo, JJ., concur.
Johnson, J., concurs in the result.
Street, J., did not sign.

Separate Opinions

CARSON, J., concurring:

I concur. I think, however, that the extenuating circumstances attending the commission of the crime fall
under the provisions of section 7 of the Penal Code rather than under the provisions of section 5 of that Code
as indicated in the opinion.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-12655

June 30, 1960

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FABIAN ULITA, ET AL., defendants.
SANTOS ULITA, SERAPIO ULITA, BERNARDINO ULITA, ALFREDO ULITA, and ISABELO PACAMALAN,appellants.
Singson and Singson Law Office for appellants.
1st Asst. Solicitor General Guillermo E. Torres and Solicitor Antonio A. Torres for appellee.
BARRERA, J.:
Fabian Ulita, Santos Ulita, Alvaro Ulita, Jose Ulita, Serapio Ulita, Bernardino Ulita, Alfredo Ulita, Isabelo
Pacamalan, Eduardo Malana, Hipolito Asuncion, Joaquin Gammad, and Fausto Caballes, were charged in the
Court of First Instance of Cagayan, with the crime of murder for the killing of Guillermo Tagayuna. Eduardo
Malana, Hipolito Asuncion, Joaquin Gammad, and Fausto Caballes were later excluded from the information,
on the motion of the Fiscal, for lack of evidence. Fabian Ulita pleaded guilty upon arraignment. After trial, the
court found Santos Ulita, Serapio Ulita, Bernardino Ulita, Alfredo Ulita, and Isabelo Pacamalan guilty of the
crime charged, but finding one mitigating and no aggravating circumstance, sentenced each of them in
accordance with the Indeterminate Sentence Law, to suffer the penalty of 10 years and 1 day of prision mayor,
as minimum, to 17 years, 4 months and 1 day of reclusion temporal, as maximum, and to pay 1/4 of the costs.
Jose Ulita and Alvaro Ulita were acquitted. Fabian Ulita, having pleaded guilty and voluntarily surrendered,
was sentenced to suffer the penalty of 4 years, 2 months and 1 day of prision correccional, as minimum, to 10
years and 1 day of prision mayor, as maximum, and to pay 1/4 of the costs. Fabian did not appeal.
On their part, Santos Ulita, Serapio Ulita, Bernardino Ulita, Alfredo Ulita, and Isabelo Pacamalan appealed to
the Court of Appeals. However, said court, in its resolution of April 10, 1957, elevated the case to this Court, in
view of its finding that the murder committed by appellants was aggravated by evident premeditation,
without any mitigating circumstance to offset the same and, therefore, the penalty imposable is at least life
imprisonment which, under existing law, it is not authorized to impose.
Pending appeal with the Court, counsel for appellants submitted a motion for new trial based on newlydiscovered evidence consisting of the affidavits of the prosecution witnesses Macario Constantino and
Concepcion Ulita, retracting from the testimony they had given in the lower court, action on which was
deferred by resolution of this Court of January 19, 1959, until the case can be considered on the merits. These
affidavits, we now find, are without merit. In them, the affiants merely recites that their testimony in open
court was not true and that it was given only because they (the two recanting witnesses) were included in two
previous cases of malicious mischief and less serious physical injuries filed by the Ulitas against the deceased
Guillermo Tagayuna and more than 25 others. It appears, however, that these two minor cases were filed, the
first on August 18, 1952 and the other on September 2, 1952 or more than five (5) months before the killing of
Tagayuna, and in the first, the defendants were acquitted on October 17, 1952. Besides, not all the present
accused were complainants in those two cases. The pretense, therefore, that these two witnesses testified as
they did during the trial of the case only because they were "mad at the accused" is too flimsy to merit serious

consideration. In the case of People vs. Farol, et al., (G. R. No. L-9423 and L-9424 prom. May 30, 1958),we held
that
. . . resort to the affidavits of recantation ... is becoming rather common. Appellate courts must
therefore be wary of accepting such affidavits at their face value, always bearing in mind that the
testimony which they purport to vary or contradict was taken in an open and free trial in the court of
justice and under conditions calculated to discourage and forestall falsehood, those conditions being as
pointed out in the case of U. S. vs. Dacir (26 Phil. 507) that such testimony is given under the sanction
of an oath and of the penalties prescribed for perjury; that the witness' story is told in the presence of
an impartial judge in the course of a solemn trial in an open court; that the witness is subject to crossexamination, with all the facilities afforded thereby to test the truth and accuracy of his statements
and to develop his attitude of minds towards the parties, and his disposition to assist the cause of truth
rather than to further some personal end; that the proceedings are had under the protection of the
court and under such conditions as to remove, so far as is humanly possible, all likelihood that undue
or unfair influences will be exercised to induce the witness to testify falsely; and finally that under the
watchful eye of a trained judge his manner, his general bearing and demeanor and even the intonation
of his voice often unconsciously disclose the degree of credit to which he is entitled as a witness.'
Unless there be special circumstances which, coupled with the retraction of the witness, really raise a
doubt as to the truth of the testimony given by him at the trial and accepted by the trial judge, and
only if such testimony is essential to the judgment of conviction so much so that its elimination would
lead the trial judge to a different conclusion, a new trial based on such retraction would not be
justified. Otherwise, there would never be an end to a criminal litigation and the administration of
justice would be at the mercy of criminals and the unscrupulous. . . . .
And in the case of People vs. Ubia et al., (97 Phil., 515), we stated that "it would be a dangerous rule for
courts to reject testimonies solemnly taken before courts of justice simply because the witnesses who had
given them later on change their mind for one reason or another, for such a rule would make solemn trials a
mockery and place the investigation of truth at the mercy of unscrupulous witnesses." This Court has, likewise,
invariably and consistently refused to entertain and grant motions for new trial based on affidavits of
retraction by witnesses, because of the inherent improbability of the alleged new versions of the commission
of the crime, as well as the easiness and facility with which such affidavits are obtained (People vs. Monadi, et
al., 97 Phil., 575; People vs. Aguipo, G. R. No. L-12123-24, prom. July 31, 1958), and the probability of their
being repudiated later (People vs. Galamiton, G. R. No. L-6302, prom. August 25, 1954). It is not also
improbable that said schemes are conceived and carried out for a consideration, usually monetary. (People vs.
Francisco, 94 Phil., 975.) We find, therefore, no reason for seriously considering, much less acceding, to the
appellant's motion for new trial.
Coming now to the merits of the case, according to the evidence and as found by the trial court, at about 9
o'clock in the morning of January 24, 1953, Guillermo Tagayuna and Macario Constantino went to the fields
at Pallagao, Gattaran, Cagayan. While Tagayuna, followed by Constantino at a distance of seven (7) meters,
was walking along a narrow trial where there were plenty of tall grasses called tanglares, Santos Ulita,
armed with a bolo, suddenly appeared from behind the grasses and hacked Tagayuna's right arm. Then
Fabian Ulita, Bernardo Ulita, and Alvaro Ulita who also were hiding among the tall grasses rushed at him
from behind, on the left side, and hacked his back with their bolos. Alfredo Ulita then hacked his right leg,
causing him to fall to the ground in kneeling position. While in this position, Serapio Ulita, Jose Ulita, and
Isabelo Pacamalan rushed at him. Jose then hacked his left arm and his head, while Serapio and Isabelo
hacked his right arm. The boloes used by the accused were of the kind known as calasiaos. Tagayuna
shouted for help. Constantino did likewise, having been stunned by the suddenness of the attack, but
nobody came to help them. Constantino then ran away in the direction of the road. Upon seeing him, Fabian

and Alvaro, with boloes in their hands, chased him, but upon reaching the curve of the road, they gave up.
Constantino then turned around and at this instant, he saw the accused hacking Tagayuna while they
encircled him. The latter died as result of the wounds inflicted on him by the accused. Thereafter, the
accused fled.
After the killing, police corporal Isidro Ventura of Gattaran repaired to the scene of the crime. He saw the
dead body of Tagayuna in the rice field. He prepared a sketch (Exh. "N") of the scene, and found within a
radius of 5 meters around said body ("1" in Exh. "N") ten (10) fresh footprints.
A bolo (Exh. "I"), which was one of the 3 boloes entrusted by Santos Ulita and his brothers to Meliton Daniel in
San Vicente, Gattaran shortly after the incident, and surrendered by the latter to Chief of Police Andres
Bucaling, was discovered to have dried blood strains on its blade.
Appellants were apprehended under a warrant of arrest only a week later as they fled to, and hid in different
places after the commission of the crime.
A post-mortem examination of the cadaver of Tagayuna made by Dr. Antonio Nolasco showed that the victim
sustained 21 wounds in various parts of his body. (Exhs. "O", "P", and "P-1".) Of these wounds 14 were
inflicted on the frontal side and 7 on the dorsal side. Wound No. 3 (Exh. "P") inflicted frontally on the parietal
region, Wound No. 15 (Exh. "P-1") inflicted dorsally on the neck, cutting the principal veins and arteries, and
Wound No. 16 (Exh. "P-1") also inflicted on the neck, were all necessarily mortal. Wound No. 7 (Exh. "P"),
completely severed the middle fingers of the victim, and Wound No. 8 (Exh. "P") completely severed his left
forearm. All these wounds appear to have been inflicted from different sides and directions of the body of the
victim and by more than one person. Dr. Nolasco attributed the death of Tagayuna to severe hemorrhage.
Appellants Serapio, Santos, Alfredo, and Bernardino are brothers; while appellant Isabelo Pacamalan is their
brother-in-law. (The other accused who were acquitted, Jose and Alvaro are also their brothers, while Fabian,
who pleaded guilty, is the son of Jose.) There was a standing controversy between the Ulita family and
Tagayuna over the ownership of a parcel of rice land in Pallagao, Gattaran.
The version of the defense regarding the incident is as follows:
On January 24, 1953, at about 7 o'clock in the morning, Fabian Ulita went to harvest palay on the land leased
to him by one Servillano. He was followed later by 6 women, relatives of his. He was harvesting on the
northern part of the ricefield near a path, 30 meters away from the women when he saw Tagayuna
approaching. Upon seeing him, Fabian unsheathed his bolo and stuck the same to the ground. Tagayuna went
near him saying; "What, are you harvesting here also loco?" to which Fabian answered: "I am harvesting my
little ripe palay, Tata. I have to harvest a little because you have harvested to one I planted on the
controverted land." Tagayuna then retorted: "You did not plant anything there, loco" and Fabian replied:
"Why not? You had it harvested. "Infuriated by Fabian's reply, Tagayuna rushed at him with a club he was
holding at the time. Instantly, Fabian picked up his bolo and hit Tagayuna's right arm below the right wrist,
causing the latter to drop his club. Then he delivered blows which Tagayuna tried to parry with his hands; then
he hacked him several times on his left arm until it was severed and gave him several times on his left arm
until it was severed and gave him a "backhand stroke" which hit Tagayuna on the head, neck, and back. Then
he hit him twice on the knee, severing the same on the second blow and causing the minor wounds described
in Exhibit "O", all done in the heat of anger. When Margarita Natividad (wife of Alfredo Ulita) and her
companions saw Fabian hacking the deceased, they ran away, and while running, they saw 4 PC soldiers on
the road. When asked why she was running, Margarita answered: "Fabian and Guillermo are fighting."

After hacking Tagayuna to death, Fabian saw Constantino and thereupon chased him. After chasing him,
Fabian walked through the rice fields. Thereafter, he saw 4 PC soldiers. He then surrendered to them saying: "I
am coming to surrender. I killed Imong," at the same time delivering his bolo (Exh. "G") to Corporal Malana.
While Fabian was being guarded by Caballes, Malana saw more than 30 followers of Tagayuna, armed with
boloes, walking toward them. He then collected 5 boloes from them. Not long thereafter, Benita Mamuad,
wife of Tagayuna, arrived and went directly to Fabian saying. "Vulva of your mother Fabian, you killed my
husband, I will kill you also." Then she picked up some hardened earth and threw it at Fabian, angrily shouting:
"Vulva of your mothers, the Ulitas. Even women, children and men, I will send all of you to jail." She also
uttered bad words to the PC soldiers.
Appellants defense is alibi, as follows:
Isabelo Pacamalan testified that when Fabian Ulita killed Tagayuna, he was at home lulling his baby to sleep;
that it was his wife who informed him about the killing; that in the afternoon of the same day, Serapio Ulita
dropped at his house and asked him to go with him to town (Gattaran), to advise Atty. Mandac regarding the
incident; and that the latter told him not to return to Pallagao for several days, to give the followers of
Tagayuna time to cool off.
Serapio Ulita, alleged that he was at home convalescing from an illness ("pasma"); that he learned about the
incident from his wife, who got the information from Margarita Natividad; and that as he was afraid to remain
in his house, he went to town (Gattaran) with his brother-in-law, Isabelo Pacamalan, and saw Atty. Mandac,
who advised them to stay away for a while, which they did, until their arrest a week later.
Santos Ulita declared that he was cooking when Margarita Natividad informed him about the incident and
warned him not to go down their house; that his wife, Juanita Baraquio, was then in bed, as she had delivered
5 days prior to the incident; and that at 2 o'clock in the afternoon of the same day, his brother Jose,
Bernardino, and Alfredo fetched him, and they went to Tuguegarao for the purpose of informing Atty. Singson
that Fabian had killed Tagayuna, returning therefrom at lunch time the following Monday.
Bernardino Ulita averred that he was then at home cooking when Margarita Natividad informed him about the
killing; that his wife had just delivered and was then in bed at the time; and that in the afternoon of the same
day, he went with his brothers Jose, Santos, and Alfredo to Tuguegarao in order to inform Atty. Singson about
the incident.
Alfredo Ulita stated that he was plowing near his house when his wife, Margarita Natividad, informed him
about the incident; and that in the afternoon of the same day, he went with his brothers Jose, Santos, and
Bernardino to Tuguegarao to advise Atty. Singson about the killing.
Appellants have assigned 11 errors allegedly committed by the trial court, all of which we believe converge
on one main issue, namely, whether the evidence adduced by the prosecution warrants the conviction of
appellants of the crime charged. It is a question of credibility of the state witnesses. Where the issues is one
of the credibility of witnesses, the rule is that appellate courts will not generally disturb the findings of the
court a quo considering that it is in better position to decide the question, having seen and heard the
witnesses themselves and observed their deportment and manner of testifying during the hearing, unless it
is shown that it has overlooked certain facts of substance and value that, if considered, might affect the
result of the case. (People vs. Binsol, et al., 100 Phil., 713; 53 Off. Gaz., 3045; People vs. Villaroya, et al., 101
Phil., 1061.)

After a careful appraisal of the evidence, we agree with the trial court that the guilt of the appellants has been
proved beyond reasonable doubt. We believe that Fabian Ulita pleaded guilty as the sole author of the crime
charged, in order to save his close relatives from imprisonment. His story cannot be believed at all. As the trial
court observed:
Fabian Ulita claims that Guillermo Tagayuna rushed at him when he was harvesting palay and hacked
him (Tagayuna) right then and there. But Tagayuna's cadaver was found where there was no palay and
his legs were stuck into the deep mud up to the thighs. This fact explodes the theory of self-defense,
complete or incomplete . . . .
We believe that the killing of Tagayuna actually took place as narrated by the prosecution witness Macario
Constantino who testified in direct, positive straightforward and credible manner. His testimony has
corroborated in many respects. Concepcion Ulita testified that on the morning in question, when he was on
his way to the rice fields, he saw the 8 accused, armed with boloes, fleeing from the scene of the crime
towards their houses, shouting: "We have killed him" (referring Tagayuna). Policeman Isidro Ventura, who
drew a sketch of the place where the dead body of Tagayuna was found, saw at least 10 fresh footprints near
said body, which was stuck in a muddy spot, with tall grasses (tanglares) all around. The number and location
of the wounds (21 in all and in various parts of the victim's body) show convincingly that Tagayuna's assailants
were many and that the wounds could not have been inflicted by only one person. The bolo (exh. "I") one of
the 3 boloes which were entrusted by Santos Ulita and his brothers (Serapio, Bernardino, and Alfredo) to
Meliton Daniel at the latter's house in San Vicente, Gattaran, was found by chief of police Andres Bucaling to
have on its blade dried blood stains. It was not Fabian alone but the entire Ulita family that had bad blood
with the deceased due to the ownership of certain rice lands. As a matter of fact, the Ulitas had vowed to kill
Tagayuna. During the planting season, prior to the incident, they were overhead by Constantino to have told
the deceased: "We will bury you in one of the rice paddies" (Itambac da ca ditoy). As to the immediate
motive of the killing, it will be noted that on January 23, 1953, or the day before the incident, there arose
the question of whether the Ulitas or the Tagayuna group should harvest the palay on the disputed land
between Jose Ulita and Tagayuna, and the PC soldiers had ordered the deposit of the harvest with the barrio
lieutenant, until the settlement of the dispute. The Ulitas must have deeply resented this, as they had been
thereby deprived of the fruits of their labor in planting the palay. They are, therefore, the ones to have
reason to likely start hostilities and not the deceased. The fact that the accused fled a few hours after the
commission of the offense, clearly indicates their guilty minds. (U. S. vs. Alegado, 25 Phil., 510; U. S. vs.
Sarikala, 37 Phil., 486; U. S. vs. Virrey, 37 Phil., 618; People vs. Manalo & Atienza, 46 Phil., 527; People vs.
Wilson et al., 52 Phil., 907; People vs. Gucor, 86 Phil., 157; 47 Off. Gaz. 1621.) We quote with approval the trial
court's finding on its point, to wit:
That the said accused fled a few hours after the commission of the crime, is an eloquent proof of their
guiltespecially when six of them went directly to their respective attorneys for advice, and two of
them went to the friendly P.C. soldiers for protection. What need was there for four of them to go to
Atty. Singson in Tuguegarao to advise him of the killing of Tagayuna by Fabian? What need was there
for two of them to go to Atty. Mandac to tell him same thing? To ask both attorneys to defend Fabian
only? If they were afraid of retaliation from the followers of Tagayuna, like Alvaro Ulita, they would just
have sought the protection of the P.C. soldiers in Pallagao, thus avoiding expense and trouble.
Coming to their defense of alibi, it should be noted that the respective residences of the accused where they
claim they were at the time of the killing are in the immediate vicinity of the crime. Besides, it has been stated
that alibi is at best a week defense and cannot prevail over the testimony of truthful witnesses. The reason is
that alibi is easy of fabrication (People vs. Badilla, 48 Phil., 781) especially between parents and children,
between relatives, as in the present case, and friends, and even between those not so related (People vs. De

Asis, 61 Phil., 384; Peoplevs. Japitana, 77 Phil., 175). Indeed, even in those case where proof of the alibi is wellsupported by the testimony of witnesses, the alibi would not be credited when the identity of the accused as
the persons who committed the crime is fully established by clear, explicit, and positive testimony, (U.S. vs.
Pascua, 1 Phil., 631; U.S. vs. Hudieres, 27 Phil., 45), as in this case.
There is no reason to believe that the accused had conspired to kill Tagayuna. The form and manner in
which the attack was accomplished (People vs. Tiam, et al., G. R. No. L-36, prom. August 29, 1946) and the
gravity and seriousness of the wounds inflicted on the deceased (People vs. Reyes, 47 Phil., 635), showed
unity of action and purpose. And it is understandable that a community of interest should exist among the
accused, as they were all closely related to each other by blood (People vs. Monadi, et al., supra.) It is not,
therefore, difficult to see that they had strong reasons to hate him and adopt measures, even radical, to
liquidate him.
There can also be no doubt that treachery was present in the commission of the crime, which qualifies the
killing of Tagayuna to murder. It was conclusively shown that the latter was suddenly intercepted and
assaulted by the accused who were then hiding in the surrounding tall grasses (tanglares), thereby employing
means, methods, or forms in the execution of the crime which tended directly and specially to insure its
execution without risk to themselves arising from the defense which the offended party might make. (Art. 1416, Revised Penal Code.) When an assault is made with a deadly weapon upon an unarmed and unsuspecting
victim who has given no immediate provocation for the attack, and under conditions which make it impossible
for him to evade the attack, flee, or make defense, the act is properly qualified as treacherous; and the
homicide resulting therefrom is murder. (People vs. Pengzon, 44 Phil., 224; People vs. Sombilon, 83 Phil., 630;
46 Off. Gaz. [Sup. 11] 83.) It is to be noted that there is here present the circumstance of abuse of superior
strength. However, under the circumstances of the case, we deem it absorbed by the element of treachery.
The trial court found that the aggravating circumstance of evident premeditation was not attendant in the
commission of the crime, for the reason that the incident of January 23, 1953, one day before the killing, was
not an act manifestly indicating that the accused clung to their determination to kill the deceased. According
to the court, it was a mere altercation regarding which of the parties (the Ulitas and Tagayuna) should get the
palay harvested on the land in question. We disagree with the trial court in this regard. According to its own
findings, "the way the ambuscade was made, showed a well-predetermined and premeditated plan."
Tagayuna was hacked on the arms in order that he could not defend himself. Then they cut his legs so that he
could not escape. And when he was already disabled, they surrounded him and hacked him to death. The
intention of the accused to eliminate Tagayuna began during the last planting season, before the incident,
when the accused told him: "We will bury you in one of the rice paddies." They decided to carry it out on
January 23, 1953, when the question arose as to who should get the harvest. The best solution to their
problem was to eliminate Tagayuna. They therefore planned to ambush him the following morning, knowing
that he would return to the land in question. These circumstances satisfy the requisite of evident
premeditation, to wit, "a period sufficient in a judicial sense to afford full opportunity for meditation and
reflection and sufficient to allow the conscience of the actor to overcome the resolution of his will if he desires
to harken to its warnings." (U.S. vs. Gil, 13 Phil., 530; People vs. Bangug, 52 Phil., 87.) The fitness of the place
selected by the accused and the manner in which they inflicted the wounds on the deceased, all are evidences
of such premeditation as to satisfy the requirement of the statute that it be evident. (U.S. vs. Ricafor, 1 Phil.,
173.)
The trial court appreciated the mitigating circumstance of passion and obfuscation in favor of appellants,
because it believed that when the harvest of the land which had been cultivated by appellants was ordered
deposit with the barrio lieutenant by the PC soldiers, they were deprived of the fruits of their labor and, were
therefore, naturally infuriated and obfuscated. But, in order to consider this mitigating circumstance, it is

necessary that there be clear proof of the existence of an act both unlawful and sufficient to produce such
condition of the minds. (U.S. vs. Pilares, 18 Phil., 87; U.S. vs. Sarikala, 37 Phil., 486; People vs. Alanguilang, 52
Phil., 663.) It will be noted that Jose Ulita, the eldest of the Ulita brothers, has consented to the making of
such a deposit on January 23, 1953. We believe that the order for the deposit of the harvest cannot be
considered unlawful or sufficient to cause obfuscation on appellants. (See People vs. Noynay, et al., 58 Phil.,
393.)
In view of the foregoing we find the appellants guilty of the crime of murder aggravated by evident
premeditation, without any mitigating circumstance. However, for lack of the required number of votes for
the imposition of the supreme penalty of death, the appellants are hereby sentenced to reclusion perpetua,
and the indemnify jointly and severally the heirs of the deceased Guillermo Tagayuna in the sum of P6,000.00.
Thus modified, the decision appealed from is affirmed, with costs against the appellants. So ordered.
Paras, C. J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., and Gutierrez David
JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 109617 August 11, 1997

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FELIPE SION @ "JUNIOR," JOHNNY JUGUILON, EDONG SION, FELIX SION @ "ELLET," and FEDERICO DISU @
MIGUEL," accused.
FELIPE SION @ "JUNIOR" and FEDERICO DISU @ "MIGUEL," accused-appellants.

DAVIDE, JR., J.:

In its decision 1 in Criminal Case No. D-10796 dated 20 January 1993, but promulgated on 8 February 1993,
Branch 44 (Dagupan City) of the Regional Trial Court of the First Judicial Region decreed as follows:
WHEREFORE, the Court finds accused Felipe Sion alias "Junior" and Federico Disu alias Miguel Disu
guilty beyond reasonable doubt as principals of the crime of Murder pursuant to Article 248 of the
Revised Penal Code, and in view of the attendance of the aggravating circumstance of cruelty which is
not offset by any mitigating circumstance, the two accused are hereby sentenced to suffer the penalty
of Reclusion Perpetua, and to indemnify jointly the heirs of the victim the sum of P50,000.00 and to
pay the costs of the proceedings.
Accused Felipe Sion alias "Junior" and Federico Disu alias Miguel Disu are ordered to pay jointly the
heirs of the victim the sum of P11,910.00 as actual damages.
SO ORDERED.
Felipe Sion alias "Junior," whose full name is Felipe Rodriguez Sion, Jr. 2 (hereafter appellant Sion), and
Federico Disualias "Miguel" (hereafter appellant Disu), seasonably appealed therefrom to this Court 3 in view
of the penalty imposed. 4
The case against appellants commenced with the filing of a criminal complaint for Murder 5 on 19 November
1991 in Criminal Case No. 2141 (SP-91) before the Fourth Municipal Circuit Trial Court of San Fabian-San
Jacinto in the Province of Pangasinan. Charged with appellants therein were Johnny Juguilon, Edong Sion, Felix
Sion alias "Ellet," and "four (4) other John Does." After appropriate preliminary examination, Judge Sergio
Garcia of said court issued a warrant for the arrest of the accused with no bail fixed for their temporary
liberty. 6 However, the warrant was served only on appellant Disu, while the rest then remained at large. Upon
appellant Disu's motion for bail, to which Asst. Provincial Prosecutor Restituto Dumlao, Jr., recommended that
bail be fixed at P40,000.00 for said accused only, the court fixed said accused's bail at such amount; and upon
filing and approval of the bail bond, appellant Disu was ordered released. 7 Subsequently, one Atty. Fernando

Cabrera filed, for the rest of the accused, a motion to reduce the bail from P40,000.00 to
P20,000.00. 8 As Provincial Prosecutor Dumlao agreed to a reduction of P10,000.00, the court granted the
motion and fixed bail at P30,000.00. None of them, however, filed a bail bond.
For failure of the accused to submit the required counter-affidavits, the Municipal Circuit Trial Court, finding
probable cause against all the accused for the crime of murder on the basis of the evidence for the
prosecution, ordered the transmittal of the record of the case, including the bail bond of accused Federico
Disu, to the Office of the Provincial Prosecutor of Pangasinan for appropriate action. 9
On 21 January 1992, an Information 10 was filed with the Regional Trial Court (RTC), First Judicial Region, in
Dagupan City, Pangasinan, against appellants Sion and Disu and Johnny Juguilon, Edong Sion, Felix
Sion alias "Ellet," and four (4) unidentified persons (designated as John, Peter, Richard and Paul Doe), accusing
them of the crime of murder committed as follows:
That on or about October 16, 1991 in the evening at Brgy. Binday, municipality of San Fabian, province
of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, armed with stones and a bladed weapon conspiring, confederating and mutually helping one
another with intent to kill with treachery and evident premeditation did, then and there wilfully,
unlawfully and feloniously hurl with stones, attack and stab Fernando Abaoag inflicting upon him the
following injuries:
stab wound 1 1/2 inches in width, 9 inches in depth between 10-11
ICS, mid axillary area slanting upwards hitting the left lobe of the lung
stab wound right lateral side of the neck 1 1/2, inch in depth
stab wound 1 1/2 inches in width, 1 1/2 in depth mid scapular area,
left
contusion superimposed abrasion left eyebrow
which caused his instant death, to the damage and prejudice of his heirs.
CONTRARY to Art. 248, Revised Penal Code.
The information was docketed as Criminal Case No. D-10796 and assigned to Branch 44 thereof.
On 2 June 1992, accused Sion was arrested. 11 Then on 10 June 1992, the RTC annulled and voided the bail
earlier granted to appellant Disu by the MCTC Judge Sergio Garcia for luck of proper hearing, denied the
motion for bail filed by appellant Sion, and ordered their detention in jail. 12
Since only appellants Sion and Disu were arrested, the case proceeded against them only. Upon arraignment,
both pleaded not guilty to the charge and waived pre-trial. 13
The prosecution's witnesses were Cesar and Felicitas Abaoag, the brother and the wife of the victim,
respectively; Dr. Leopoldo Manalo, San Fabian Municipal Health Officer; Rosendo Imuslan, barangay captain of
Barangay Binday; and SPO1 Ricardo Abrio. On the other hand, the defense presented as its witness appellant
Disu; appellant Sion; Corazon Sion, wife of appellant Sion; and Dr. Leopoldo Manalo.

The evidence for the prosecution as established by the testimonies of its witnesses is partly summarized by
the Office of the Solicitor General in the Brief for the Appellee, as follows:
On or about 7:00 o'clock in the evening of October 16, 1991, Cesar Abaoag was at the barangay road in
front of his house situated in Binday, San Fabian, Pangasinan. He was with his elder brother Carlos
Abaoag and Ricardo Manuel (p. 6, TSN, August 20, 1992) when all of a sudden, Ronnie Manuel arrived
coming from the west complaining that he was being chased by Felipe Sion and Johnny Juguilon (p. 7,
TSN, id.). On that same occasion, Fernando Abaoag also arrived at the scene. He said to Ronnie, "why
Ronnie, you are making trouble again." The latter answered, "I am not making trouble uncle because
while I was inside the house of Eling Alcantara, Felipe Sion and Johnny Juguilon were trying to stab me.
(p. 8, TSN, id.). Seconds later, Felipe Sion and Johnny Juguilon appeared and started throwing stones.
Fernando Abaoag told them to stop throwing stones but before they desisted and left, one of them
uttered "even you Andong, you are interfering, you will also have your day, vulva of your mother, you
Abaoag[s]" (pp. 9-10, id.) Apparently, the utterance was directed against Fernando Abaoag whose
nickname is Andong.
Subsequently thereafter, at about 9:00 o'clock on that same evening, Cesar Abaoag while inside his
house lying down on his bed heard the sound of stone throwing at the nearby house of his brother
Fernando. He went out to see who were throwing stones (14, TSN, id.). When already near the house
of Lolly Galdones, Cesar Abaoag saw his brother Fernando already outside his house. He also saw
Johnny Juguilon, one of the members of the group of stone throwers, hurl a big stone against
Fernando. Upon being hit on the left eyebrow, Fernando turned his back towards Felix Sion, Edong
Sion and Miguel Disu who were also throwing stones towards his direction. On the other hand,
appellant Felipe Sion, who was near the victim, with a very sharp double bladed dagger, stabbed
Fernando, first on the left side just below the armpit, then on the left waistline and finally on the right
side of the neck below the jaw (pp. 18-19, TSN, id.).
Cesar tried to extend help to his brother but Miguel Disu hurled a stone on him which landed on his
right side below the armpit. When he heard Felipe Sion shouting to his companions saying, "we will
also kill Cesar," Cesar desisted in helping brother (pp. 22-23, TSN, id.). Instead, he ran to his brother's
house and informed Felicitas, the wife, about the helpless condition of Fernando (pp. 22-23, TSN, id.).
Upon being informed, Felicitas accompanied by Carlos Abaoag, went to the place of the incident. The
assailants were no longer there. She only saw her husband lying prostate on the ground very weak in
the state of dying. When she inquired what happened, Fernando answered "naalaak" which in English
means "I was hit" (pp. 4-5, TSN, July 27, 1992). Fernando told his wife that his assailants were Felipe
Sion, Miguel Disu, Edong Sion, Johnny Juguilon and Felix Sion (p. 6, TSN, id.)
The victim was rushed to St. Blaise Hospital in San Fabian but he was pronounced dead on arrival (pp.
24-25, TSN, August 20, 1992).
Dr. Leopoldo Manalo, a Municipal Health Officer of San Fabian, Pangasinan conducted post
mortemexamination (Exh. A) on the body of the victim. The result of his findings showed that Fernando
Abaoag sustained the following injuries, to wit:
1) stab wound 1 1/2 inches in width, 9 inches in depth between 10-11, ICS, mid axillary area slanting
upwards hitting the left lobe of the lung
2) stab wound right lateral side of the neck 1 1/2 inches in width, 1 1/2 inch in depth

3) stab wound 1 1/2 inches in width, 1 1/2 in depth mid scapular area, left
4) contusion superimposed abrasion left eyebrow. 14
Dr. Manalo further testified that the stab wounds were caused by a sharp-pointed instrument, possibly a
dagger, with the first wound hitting the lower lobe of the left lung causing severe bleeding and its eventual
collapse. He determined the cause of death to be hemorrhagic shock secondary to multiple stab wounds. 15
Barangay Captain Imuslan testified that he and Kagawad Fernando Gatchalian, on the night of the incident,
found a small bolo and a bloodied double-bladed weapon (dagger) near the scene of the crime. 16 Cesar
Abaoag recognized this weapon as the one used by appellant Sion in stabbing the
victim. 17 On her part, Felicitas Abaoag declared that she spent more than P11,000.00 for the wake and burial
of her husband whose death saddened her, she being left alone to take care of their children. 18
In his defense, appellant Sion, brother and cousin of accused Edong 19 Sion and Felix Sion alias "Ellet,"
respectively, admitted that on the night in question, he participated in a stone-throwing incident and "freefor-all rumble" between his group (the Sions and Johnny Juguilon) on one hand, and the Abaoags and
Manuels, on the other. However, he professed his innocence, claiming that it was his brother Edong Sion and
Johnny Juguilon who stabbed the victim. 20 His version of the incident was summarized by the trial court, thus:
On October 16, 1991 at about 7:00 p.m., he, together with Johnny Juguilon went to the house of Eling
Alcantara as he wanted to talk with his son, his friend. Ronnie Manuel was already there when they
arrived. While at the place, Johnny Juguilon and Ronnie Manuel came out and started fighting with
each other. Ronnie and Manuel ran and proceeded to the place of his cousin. He was pacifying Johnny
Juguilon and Ronnie Manuel but Johnny Juguilon threw stones at Ronnie Manuel. At this point,
Fernando Abaoag intervened in the quarrel saying, "vulva of your mother Johnny, you are too much,
you will also have your day." Johnny Juguilon answered "vulva of your mother Andoy, do not interfere
because you are not our enemy." After the verbal exchange, he took Johnny Juguilon to their (Sion's)
house . . . . At about 9:00 p.m., that same evening, they stoned their house, its sides and the stairs. He
and Idong and Johnny Juguilon looked for Cesar Abaoag, Ronnie Manuel, Ricky Manuel, Andong
Abaoag and two (2) other companions. They were at the place of Marta Soriano. After that, they still
threw stones towards them. There was a free for all rumble between Ronnie Manuel, Ricky Manuel,
the Abaoags and Idong Sion, and Johnny Juguilon, Ellet Sion and himself, in front of the house of Loly
Galdones. He denied the testimony of Cesar Abaoag that he stabbed Fernando Abaoag three times and
before he was stabbed Johnny Juguilon stoned him (Fernando Abaoag). It was Idong Sion and Johnny
Juguilon who stabbed Fernando Abaoag. After Fernando Abaoag was stabbed, they ran away. His
group also ran away. He went home and rushed towards Johnny Juguilon because he was stabbed. He
brought Juguilon to the St. Blaise Clinic and Hospital. He did not report the incident to Barangay
Captain Rosendo Imuslan. On October 17, 1:00 p.m., he presented himself to Kagawad Lagman who
brought him to the Police Station . . . . 21
In his defense, appellant Disu offered denial and alibi. He declared that he had no participation in the killing of
Fernando Abaoag, and during the whole night of 16 October 1991, while the quarrel, stoning and stabbing
incidents in question were taking place, he was resting and sleeping in the house of his employer, Felicidad
Gatchalian, after driving the latter's jeepney the entire day. However, before proceeding home from work that
afternoon, he went to the store of Oping Juguilon to buy cigarettes and dropped by the house of appellant
Sion where he stayed for about five minutes. He only learned about the killing the following morning when he
was told that he was one of the suspects. He was arrested about a month after the incident. 22

On rebuttal, Cesar Abaoag refuted the testimony of appellant Sion. Cesar asserted that neither his brothers,
the Manuels nor himself threw stones at Sion's house; there was no free-for-all fight between the Sions and
the Abaoags; Johnny Juguilon and Edong Sion merely threw stones at, but did not stab, Fernando Abaoag; and
it was only appellant Sion who stabbed Fernando Abaoag. 23
After the conclusion of trial, the court granted appellants' motion to file a memorandum within fifteen days.
Despite the extension given, appellants' counsel did not file the memorandum. Thus, in its order of 11
December 1992, the trial court declared the case submitted for decision. 24
On 8 February 1993, the trial court promulgated its decision, 25 the dispositive portion quoted in the
introductory paragraph of this ponencia.
As to the culpability of appellants Sion and Disu, the trial court found:
The defense of accused Federico Disu alias Miguel Disu and Felipe Rodriguez Sion, Jr. deserve scant
consideration. Cesar Abaoag narrated in detail how his brother Fernando Abaoag was stoned by
accused Johnny Juguilon, Federico Disu and Felix Sion and how accused Felipe Sion stabbed Fernando
Abaoag three times. Cesar Abaoag saw Johnny Juguilon throw stone hitting the left eyebrow of
Fernando Abaoag, and when his brother (Fernando Abaoag) turned left, accused Federico
Disu alias Miguel Disu, Idong Sion and Felix Sion simultaneously threw stones toward him (Fernando
Abaoag). Then, at a distance of two (2) meters, Cesar Abaoag saw accused Felipe Sion stab Fernando
Abaoag three times, hitting the left side below the armpit, then on the left waistline and the right side
of the neck below the jaw of the deceased with the use of a sharp double bladed dagger.
Cesar Abaoag could not be mistaken in the identification because he was two meters away when he
saw the accused Felipe Sion stab his brother, and, moreover, there was a light illuminating the place of
the incident coming from the houses of Marta Soriano and Loly Caldones. Cesar Abaoag identified the
dagger (Exhibit D).
The narrations of Cesar Abaoag are bolstered by the testimony of Dr. Leopoldo Manalo, the doctor
who conducted the postmortem examination on the cadaver of Fernando Abaoag. Dr. Manalo stated
that "stab wound 1 1/2 inches in width, 9 inches in depth between 10-11 ICS, mid-axillary area slanting
upwards hitting the left lobe of the lung" is located below the left armpit. The second stab wound,
"stab wound right lateral side of the neck 1 1/2 inches in width, 1 1/2 in depth," is located at the right
side of the nec[k] at the back. The doctor stated that the wounds were caused possibly by a dagger.
Finally, it is well to quote the statement uttered by Fernando Abaoag in the presence of Felicitas
Abaoag, to wit: "naalaak, which means, I was hit, take note of this because I cannot survive these
injuries of mine". Fernando Abaoag told Felicitas Abaoag, Felipe Sion, Miguel Disu, Idong Sion, Johnny
Juguilon and Felix Sion stabbed him. (2-12 tsn July 27, 1992). This is a dying declaration because it was
made under a consciousness of impending death (Section 37, Rule 130, Rules of Court). 26
The trial court likewise found that conspiracy was duly established by the prosecution, thus:
As stated in the decision, accused Johnny Juguilon threw stone, hitting the left eyebrow of Fernando
Abaoag, and Edong Sion, Felix Sion and Federico (Miguel) Disu simultaneously threw stones upon the
deceased, while accused Felipe Sion alias "Junior" stabbed him (victim) three times, resulting in the
latter's death. 27

It then appreciated against appellants (a) the qualifying circumstance of treachery because the "attack was so
sudden that the victim had no time to defend himself" and (b) the generic aggravating circumstance of cruelty
because "there were three stab wounds" and the first wound which "caused severe bleeding and collapse
of the lung" and the death of Fernando Abaoag "was deliberately augmented by inflicting the other wounds
which are unnecessary for its commission." 28 It did not, however, appreciate evident premeditation for lack of
"substantial" evidence;29 nor give the benefit of voluntary surrender in favor of appellant Sion since his
surrender was merely "forced by circumstances," as he "presented himself to Kagawad Lagman because he
was suspected as one of the persons who stabbed the victim." 30
Appellants, through counsel, seasonably filed their Notice of Appeal. 31
In their eight-page Appellant's Brief, filed by counsel de oficio Atty. Iris L. Bonifacio, 32 appellants plead for their
acquittal, contending that the trial court erred: (1) in convicting them of murder; (2) in taking into account the
aggravating circumstance of cruelty; (3) in ruling that conspiracy was established; (4) in not appreciating the
presence of voluntary surrender; and (5) in disregarding the defense of appellant Sion that it was Edong Sion
and Johnny Juguilon who were responsible for the death of Fernando Abaoag.
In support of their first assigned error, appellants attack the identification made of them by prosecution
witnesses. They claim that if witness Cesar Abaoag actually saw appellant Sion stab the victim, then Cesar
should have immediately informed Felicitas Abaoag, the victim's wife, of this fact. Cesar's failure was then
unusual and unnatural. Then, too, Felicitas Abaoag's testimony on her husband's alleged dying declaration was
"not specific" as far as the assailant's identities were concerned because the victim merely said "naalaak" ("I
was hit"), without identifying appellant Sion as the one who stabbed him; and, her claim that her husband
identified all the five (5) accused as the ones who "stabbed" him was "an impossibility." Moreover, the
prosecution witnesses were limited to relatives of the victims; "other vital witnesses" such as Marta
Soriano, Loly Galdones, or Eling Alcantara should have been presented to corroborate the "biased"
testimonies of Cesar and Felicitas Abaoag.
Appellants further contend that: (1) there was no treachery since the stabbing of the victim was not "sudden";
(2) cruelty was not proven because "there is no clear testimony" that the first stab wound was fatal and the
second and third wounds were "unnecessary"; (3) conspiracy cannot be deduced from the mere fact that all
the accused threw stones at the victim before the stabbing; (4) appellant Sion voluntarily surrendered even
before the police started investigating the case when he was not yet a suspect; and (5) appellant Sion could
not have testified that it was Edong Sion and Johnny Juguilon who stabbed the victim if such were not true,
considering that the former is his brother and the latter his barriomate; and (6) appellant Sion bore no grudge
against the victim and did not escape.
On the other hand, the Office of the Solicitor General, in its Brief for the Appellee, supports the trial court's
findings and conclusions, except as to the appreciation of cruelty, which it concedes to be erroneous.
Our careful review of the record of the evidence adduced by the parties convinces us that prosecution witness
Cesar Abaoag positively identified appellants as being present during the incident in question and saw
appellant Sion stab the victim thrice. As correctly found by the trial court:
Cesar Abaoag could not be mistaken in the identification because he was two meters away when he
saw the accused Felipe Sion stab his brother, and, moreover, there was a light illuminating the place of
the incident coming from the houses of Marta Soriano and Loly Caldones. Cesar Abaoag identified the
dagger (Exhibit D).

Cesar Abaoag also saw the rest of the accused, including appellant Disu, throwing stones at the victim. He was
definite, however, that it was only accused Johnny Juguilon who was able to hit the victim at the left eyebrow.
The three stab wounds inflicted by appellant Sion and the injury at the left eyebrow caused by the stone
thrown by Juguilon jibed with the post mortem findings of Dr. Manalo as he described the injury on the left
eyebrow as "contusion superimposed abrasion left eyebrow." 33 If Cesar had any ulterior motive to testify
against appellant Disu, he could have declared that it was Disu, and not Juguilon, who hit the victim with a
stone. Cesar then honestly narrated what he observed.
That Cesar did not at once inform Felicitas Abaoag that it was appellant Sion who stabbed her husband, was
not proof, as appellants suggest, that Cesar was absent from the crime when it was committed. Cesar's
presence was admitted by appellant Sion himself on direct examination, thus:
Q Did you see Cesar Abaoag on that occasion anywhere near Fernando Abaoag when
you said he was stabbed by Johnny Juguilon and Idong Sion?
A Yes, sir. 34
Furthermore, Cesar satisfactorily explained his failure to forthwith inform Felicitas of this fact. At that time,
Cesar himself was running away from the accused who had hit him with a stone. His pressing concern then
was to get someone to help his wounded brother; besides, he was scared of accused Felix Sion, uncle of
appellant Sion, who was a "notorious" character in their neighborhood. 35 It is settled that delay in divulging
the name of the perpetrator of a crime, if sufficiently explained, does not impair the credibility of the
witness nor destroy its probative value. 36 In any event, in his sworn statement 37 which was submitted on 22
October 1991 before Judge Sergio Garcia, he narrated what he had witnessed and mentioned appellants
Sion and Disu as among the perpetrators of the crime.
The identifications of appellants and their co-accused were further bolstered by the declaration made by the
victim to his wife, Felicitas Abaoag. The trial court correctly characterized this as a "dying
declaration," 38 having been made under the consciousness of impending death. The victim was already weak
his wife saw him and he knew that he would not survive the injuries he sustained; he even died a few minutes
later while on the way to the hospital. 39 When Felicitas saw her husband, he told her what had happened to
him, who caused his injuries and that he did not expect to live, thus:
Q What happened next after that when you met your husband?
A Immediately asked him what happened to him.
Q And what was the answer of Fernando Abaoag?
A He said, "naalaak," which means, I was hit.
COURT:
Q Did you ask him why he said "naalaak"?
A He said he was stabbed and he was injured.
Q What do you mean by word "naalaak"?

A I was hit.
COURT:
Proceed.
PROSECUTOR DUMLAO:
Q Do you know the reason why he was hit?
A What I understand is that in the course of his pacifying the trouble between his
nephew and the rest, he was stabbed, sir.
Q Aside from the statement of your husband Fernando Abaoag that he was hit, what
else did he say, if you know?
A He said, take note of this because I know I cannot survive with these injuries of mine.
COURT:
Q What else did he tell you aside from that?
A He said, remember that in case I cannot survive with the injuries that I sustained, the
men who stabbed me are Felipe Sion, Miguel Disu, Idong Sion, Johnny Juguilon and Felix
Sion, sir.40 (emphasis supplied)
We find these statements given by the victim to his wife to have met the requisites of a dying declaration
under Section 37 of Rule 130 of the Rules of Court, viz: (a) death is imminent and the declarant was conscious
of that fact; (b) the preliminary facts which bring the declaration within its scope must be made to appear; (c)
the declaration relates to the facts or circumstances pertaining to the fatal injury or death; and (d) the
declarant would have been competent to testify had he survived. 41 Dying declarations are admissible in
evidence as an exception to the hearsay rule because of necessity and trustworthiness. Necessity, because
the declarant's death renders impossible his taking the witness stand, and it often happens that there is no
other equally satisfactory proof of the crime; andtrustworthiness, for it is "made in extremity, when the
party is at the point of death and every hope of this world is gone; when every motive to falsehood is
silenced, and the mind is induced by the most powerful consideration to speak the truth.42 We find no
ulterior motive on the part of Felicitas to fabricate the declarations of her husband.
We likewise find to be without basis appellants' claim that all the prosecution witnesses were biased due to
their relation to the victim's family. Plainly, witnesses Imuslan (the barangay captain) and Dr. Manalo were not
related to the victim, while the relationship of witnesses Cesar Abaoag and Felicitas Abaoag to the victim, as
brother and wife, respectively, neither disqualified them as witnesses nor rendered their testimony unworthy
of belief. It is not to be lightly supposed that relatives of the deceased would callously violate their conscience
to avenge the death of a dear one by blaming it on persons whom they believe to be innocent thereof. 43 A
witness' relationship to a victim, far from rendering his testimony biased, would even render the same more
credible as it would be unnatural for a relative who is interested in vindicating the crime to accuse somebody
other than the real culprit. 44

Neither was the failure of the prosecution to present other witnesses, such as those mentioned by the
appellants, fatal to the cause of the People. It is well-settled that the decision as whom to present as
witnesses for the prosecution is addressed to the sound discretion of the prosecutor handling the case and the
non-presentation of certain witnesses by the prosecution is not a plausible defense. 45 The prosecution is not
obliged to present all possible witnesses, especially if their testimony will only serve to corroborate that of
another eyewitness' testimony, in which case the former may every well be dispensed with considering that
the testimony of a single witness, if credible and positive to prove the guilt of the accused beyond reasonable
doubt, would suffice. 46
The trial court correctly rejected appellant Sion's defense that it was not he who stabbed the victim, but his
brother Edong Sion and Johnny Juguilon, both of whom fled after the incident. Constituting a mere denial of
Cesar Abaoag's positive testimony that it was appellant Sion who stabbed the victim, such must fail in light of
the settled rule of evidence that positive testimony is stronger that negative testimony. 47 Moreover, the claim
was made rather late in the day, casting serious doubt as to its veracity. From the time that appellant Sion
presented himself to Kagawad Lagman and the police authorities on 17 October 1991, and during his
subsequent incarceration, he never told anyone nor made any statement that he was not one who stabbed
the victim; he did not even so inform his close relatives, not even his wife who visited him in jail. 48 Also, during
the preliminary investigation, when he had the opportunity to submit counter-affidavits and other evidence to
refute the charges, he did not care to dispute the statements of Felicitas and Cesar Abaoag identifying him and
detailing his participation in the crime. 49 He raised this claim for the first time only during his testimony in
court almost one (1) year after the stabbing incident and his initial surrender, and notably, only after the hope
of apprehending Idong Sion and Johnny Juguilon, together with the other accused, already seemed remote.
Such failure to immediately disclose the information as soon as he was implicated in the crime and his
prolonged silence on a vital matter hardly inspire belief, being unnatural and inconsistent with ordinary habits
of men and common experience.
That appellant Sion did not flee, unlike his brother Edong and Johnny Juguilon, neither proved his innocence.
Non-flight unlike flight of an accused which validly serves as a badge of guilt is simply inaction which may
be due to several factors; hence, it should not be construed as an indication of innocence. 50
Appellant Sion's claim of lack of ill-feeling or grudge against Fernando Abaoag was belied and contradicted by
his admission in court that just before the stabbing of the victim, he and his co-accused hurled stones at and
fought with the Abaoags, including Fernando, whom he blamed for allegedly stoning his house. 51 It is also
belied by his actuation and utterance made earlier in the evening of 16 October 1991 when Fernando Abaoag
interfered in the quarrel between appellant Sion and Fernando's nephew, Ronnie Manuel, which prompted
appellant Sion and Johnny Juguilon to curse and warn Fernando, thus: "even you Andong [Fernando Abaoag]
you are interfering, you are siding with your nephew Ronnie Manuel, you have also your day . . . . you
Abaoags." 52 Appellant Sion also admitted that he "had an ill-feeling towards" Ronnie Manuel, the victim's
nephew, because "he was making trouble" inside his jeepney "5 days before the incident." 53
In light of the positive identification of appellants, appellant Disu's alibi must fail.
It is settled that alibi is a weak defense for it is easy to concoct and fabricate; it cannot prevail over and is
worthless in the face of the positive identification by credible witnesses that an accused perpetrated the
crime. 54We are unable to discern any plausible reason, and appellant Disu does not offer any, why he should
be falsely implicated by Cesar Abaoag and mentioned in the victim's dying declaration as one of the victim'
assailants, if appellant Disu was not actually present during the incident and had no participation in the
commission of the crime. As to his motive or lack thereof, appellant Disu claims that he had no
misunderstanding with Fernando Abaoag or his family. 55 However, Felipe Sion, Jr., disclosed that appellant

Disu was close to the Sion clan, which explains why appellant Disu sympathized with and joined the Sions and
Juguilon in assaulting the victim: Federico Disu was Sion Jr.'s jeepney conductor for five (5) months, the latter
teaching the former how to drive for three (3) months; and when Disu became a driver himself, they had the
same route and saw each other every day at the poblacion. 56 Disu even admitted that on 16 October 1991,
after 5:00 p.m., he "dropped by" the house of Felipe Sion, which he often did before. 57
We now rule on the presence or absence of conspiracy. There is conspiracy when two or more persons come
to an agreement concerning the commission of a felony and decide to commit it. 58 Direct proof of a previous
agreement to commit a crime is not necessary; it may be deduced from the mode and manner in which the
offense was perpetrated, or inferred from acts of the accused themselves when such point to a joint purpose
design, concerted action and community of interest. 59 Once conspiracy is established, the act of one is the act
of all. 60
In this case, appellants and the other accused were already at the barangay road of Binday, near the houses of
Lolly Galdones and Marta Soriano, when Fernando Abaoag, who was looking for the persons who just stoned
his house several times, and Cesar Abaoag, arrived. Immediately, Johnny Juguilon threw a stone at Fernando
hitting him on the left eyebrow; then, Edong, and Felix Sion and appellant Disu, "simultaneously" threw
stones, also at Fernando. As Fernando turned away from his assailants, appellant Sion "rushed" and stabbed
the victim three (3) times, even as the latter raised his arms saying, "I will not fight back." When Cesar Abaoag
tried to help his brother Fernando, appellant Disu threw and hit Cesar with a stone. Appellant Sion then
commanded his companions to also kill Cesar, prompting the latter to run away. Then the assailants fled,
leaving behind a small bolo and a dagger. The confluence of their acts indubitably manifested a community of
interest and unity of purpose and design to take Fernando Abaoag's life.
We also find to be unsupported by evidence appellant's claim, through the testimony of appellant Sion, that
the fatal stabbing of Fernando Abaoag was a result of a "free-for-all rumble," thereby possibly tempering their
liability to that of causing death in a tumultuous affray under Article 251 of the Revised Penal Code, which
carries a penalty lower than that for homicide. 61 In this case, it was ascertained beyond doubt that appellant
Sion inflicted the fatal stab wounds; hence, this claim must be rejected.
Having resolved appellants' liability for Fernando Abaoag's death, we now rule on the circumstances attendant
to the commission of the crime.
In convicting appellants of murder, the trial court considered the qualifying circumstance of treachery, and
disregarded the qualifying circumstance of evident premeditation, which was likewise alleged in the
information. We agree as to the latter as the prosecution failed to prove the essential elements of evident
premeditation, viz: (a) the time when appellants determined to commit the crime; (b) an act manifestly
indicating that they clung to their determination; and (c) a sufficient lapse of time between such
determination and execution to allow them to reflect upon the consequences of their act. 62
We disagree, however, with the trial court's finding as regards the qualifying circumstance of treachery. Under
the law, there is treachery when the offender commits any of the crimes against the person, employing
means, methods, or forms in the execution thereof which tend directly or specifically to ensure its execution,
without risk to himself arising from the defense which the offended party might make. 63 We find no clear and
convincing evidence of treachery. Cesar Abaoag's testimony as to how his brother was attacked lacks sufficient
detail showing conclusively that the mode and manner of the assault rendered the victim entirely defenseless.
He merely testified that when he and his brother proceeded west of the barangay road of Binday, he saw
Johnny Juguilon stone his brother and hit him on the left eyebrow. Fernando Abaoag then turned to the left
with his back towards Felix Sion, Edong Sion, Miguel Disu and the four (4) other unidentified companions, who

then "simultaneously" threw stones at Fernando. "Seconds later," Cesar saw appellant Sion holding a very
sharp double bladed dagger and stab his brother three (3) times; Fernando Abaoag, when stabbed, "was just
standing and said 'I will not fight.'" 64 They were six (6) meters away from Johnny Juguilon when the latter first
hurled a stone at Fernando which signaled the other accused to the same. 65
Considering therefore the distance between the assailants and the victim when the attack commenced, and
the fact the three were two (2) waves of stoning which preceded the stabbing of the victim, these should have
sufficiently forewarned him of the greater danger which loomed and prompted him to escape. Moreover, in
light of the absence of clear details showing conclusively that the stabbing was inflicted from behind or the
victim was entirely helpless when stabbed, we are not prepared to conclude that the attack was "so sudden
and unexpected" as to render the victim entirely defenseless. Treachery cannot qualify the killing to murder
when the victim was forewarned of the attack by the assailant, or when the attack was frontal, or the attack
was not so sudden as to have caught the deceased completely unaware. 66 Furthermore, the evidence does
not disclose that the means of execution were deliberately or consciously adopted by appellants.
Absent then of any qualifying circumstance, the crime committed was homicide as defined and penalized
under Article 249 of the Revised Penal Code.
The trial court likewise erred in appreciating against appellants the generic aggravating circumstance of
cruelty, 67based solely on the fact that the victim was stabbed thrice, with the first stab wound hitting the
lower left lung causing severe bleeding and its collapse. In fact, appellee concedes this error of the trial court.
Cruelty cannot be appreciated in absence of any showing that appellants, for their pleasure and satisfaction,
caused the victim to suffer slowly and painfully and inflicted on him unnecessary physical and moral pain; and,
the mere fact that wounds in excess of what was indispensably necessary to cause death were found on the
body of the victim does not necessarily imply that such wounds were inflicted with cruelty and with the
intention of deliberately intensifying the victim's suffering. 68 In the instant case, the evidence only shows that
the three (3) stab wounds were delivered in succession, nothing more.
We agree with appellants that appellant Sion is entitled to the benefit of the mitigating circumstance of
voluntary surrender, which requires that "the offender voluntarily surrendered himself to a person in
authority." 69 Its requisites are: (a) the offender had not been actually arrested; (b) the offender surrendered
himself to a person in authority or to the latter's agent; and (c) the surrender was voluntary. 70 For a surrender
to be voluntary, it must be spontaneous and show the intent of the accused to submit himself unconditionally
to the authorities, either: (1) because he acknowledges his guilt; or (2) because he wishes to save them the
trouble and expense incidental to his search and capture. 71
As shown by the records, in the afternoon of 17 October 1991, appellant Sion "presented" himself to
Kagawad Modesto Lagman who, in turn, "escorted and surrendered" him to the police in the
poblacion. 72 His admission that he surrendered because he was already suspected as one of the
perpetrators of the crime does not make his surrender "forced by circumstances" as ruled by the trial court.
His arrest at that time was neither imminent nor inevitable. At the time of his surrender, no warrant of
arrest against him had yet been issued, the same having been issued only on 19 November 1991. 73 In fact,
he was released from custody after a few days, and was ordered committed to jail only sometime in June
1992, after his motion for bail was denied by the trial court on 10 June 1992 and was thus taken into
custody. 74 This subsequent fact should not diminish nor erase the favorable effect of Felipe Sion Jr.'s
voluntary surrender on 17 October 1991. As has been held, whatever the accused's reason for surrendering
either the fear of reprisal from victim's relatives or, in this case, his knowledge that he was already a
suspect "does not gainsay the spontaneity of the surrender, nor alter the fact that by giving himself up,
he saved the State the time and trouble of searching for him until arrested." 75

We disagree with Appellee's submission that there was no voluntary surrender because appellant Sion
surrender to a mere barangay "Kagawad" or Sangguniang Barangay member, and not to the police
authorities, implying that the former is not a person in authority. 76 This ignores Section 388 of the Local
Government Code of 1991 which expressly provides, in part, that "[f]or purposes of the Revised Penal Code,
the punong barangay, sangguniang barangay members, and members of the lupong tagapamayapa in each
barangay shall be deemed as persons in authority in their jurisdictions . . . ." 77 This law expands the
definition of a person in authority under the Revised Penal Code, wherein among the barangay officials, only
the barangay captain or chairman, now called Punong Barangay, is expressly considered a person in
authority, as provided in Article 152 thereof. Thus, in addition to the Punong Barangay, the members of the
Sangguniang Barangay, or Kagawads, and members of the Lupong Tagapayapa are now considered not
merely as agents of, but as persons, in authority. 78
WHEREFORE, the challenged decision of Branch 44 (Dagupan City) of the Regional Trial Court of the First
Judicial Region in Criminal Case No. D-10796 is MODIFIED. As modified, appellants FELIFE SION, alias "JUNIOR"
or FELIFE RODRIGUEZ, JR., and FEDERICO DISU, alias "MIGUEL," are hereby declared GUILTY beyond
reasonable doubt, as principals, of the crime of HOMICIDE as defined and penalized in Article 249 of the
Revised Penal Code, with the former entitled to the mitigating circumstance of voluntary surrender, and
applying the Indeterminate Sentence Law, they are sentenced, respectively, to suffer an indeterminate
penalty ranging from eight (8) years of prison mayor minimum, as minimum, to fourteen (14) years and eight
(8) months of reclusion temporal as maximum, and an indeterminate penalty ranging from ten (10) years and
one (1) day of prision mayormaximum, as minimum, to seventeen (17) years, four (4) months and one (1) day
of reclusion temporal minimum as maximum, with all the accessory penalties therefor, and subject to the
provision of Article 29 of the Revised Penal Code. Except as so modified, the rest of the challenged judgment
stands.
Costs against accused-appellants.
SO ORDERED.
Narvasa, C.J., Melo, Francisco and Panganiban, JJ., concur.
Footnotes
1 Original Record (OR), Criminal Case No. D-10796, 214-224; Rollo, 24-34. Per Judge Crispin C.
Laron.
2 Transcript of Stenographic Notes (TSN), 8 October 1992 (afternoon session), 2.
3 OR, 226; Rollo, 35.
4 Section 5(2) (d), Article VIII, Constitution; Sec. 17(3) [1], Judiciary Act of 1948; Sec. 3(c), Rule
122, Rules of Court.
5 OR, 15-17.
6 Id., 35-36.
7 Id., 37-41.

8 Id., 59.
9 OR, 61-62.
10 Id., 1-2; Rollo, 5-6.
11 Id., 68.
12 Order of 10 June 1992; OR, 87-90.
13 Id., 91-93.
14 Brief for the Appellee, 3-7; Rollo, 139-143.
15 TSN, 14 July 1992, 6-9.
16 TSN, 20 July 1992, 9-17.
17 TSN, 20 August 1991, 20-21.
18 TSN, 27 July 1992, 10-12.
19 Also spelled as "Idong" in the transcripts of stenographic notes.
20 TSN, 8 October 1992, 8-10.
21 RTC Decision, 6-7; OR, 219-220; Rollo, 29-30.
22 TSN, 2 October 1992, 2-10.
23 TSN, 9 October 1992, 10-11.
24 OR, 191.
25 See note 1.
26 OR, 222-223; Rollo, 32-33.
27 Id., 223; Id., 33.
28 OR, 223; Rollo, 33.
29 Ibid; Ibid.
30 Id., 223-224; Id., 33-34.
31 Supra note 3.
32 Rollo, 107-114. The original counsel of record for the accused, Atty. Romulo Abarcar, failed
to file the required Appellant's Brief despite three (3) extensions of the period to do so,

prompting this Court to subject him to disciplinary sanctions, including fine and arrest. (Rollo,
52-54, 59-70, 90-91.)
33 Exhibit "A"
34 Supra note 2, at 10.
35 TSN, 20 August 1992, 23; TSN, 18 September 1992, 11.
36 People v. Villanueva, 242 SCRA 47, 57 [1995].
37 Exhibit "K," OR, 21.
38 Section 37, Rule 130, Rules of Court.
39 TSN, 27 July 1992, 8-9.
40 TSN, 27 July 1992, 5-6.
41 People v. Pama, 216 SCRA 385, 403 [1992]; RICARDO J. FRANCISCO, EVIDENCE, 1993 ed.,
259-261.
42 FRANCISCO, op cit., 257-258.
43 People v. Boniao, 217 SCRA 653, 671 [1993].
44 People v. Viente, 225 SCRA 361, 368-369 [1991]; People v. Enciso, 223 SCRA 675, 686 [1993].
45 People v. Kyamko, 222 SCRA 183, 193 [1993], citing People v. Samillano, 207 SCRA 50, 55
[1992].
46 Ibid., 193-194; People v. Ramos, 222 SCRA 557, 576 [1993].
47 People v. Antonio, 233 SCRA 283, 299 [1994].
48 TSN, 8 October 1992, 14-18.
49 Resolution of 2 January 1992; OR, 64.
50 People v. Comia, 236 SCRA 185, 195 [1994]; People v. Enciso, 223 SCRA 675, 688 [1993].
51 TSN, 8 October 1992, 8.
52 TSN, 27 August 1992, 6.
53 TSN, 8 October 1992, 5.
54 People v. Lee, 204 SCRA 900; 910 [1990]; People v. Buka, 205 SCRA 567, 584 [1992]; People
v. Florida, 214 SCRA 227, 239 [1992].

55 TSN, 8 October 1992, 7.

56 TSN, 2 October 1992, 3; TSN, 9 October 1992, 2-3.
57 TSN, 2, October 1992, 4-5; 11-16.
58 Article 8, Revised Penal Code.
59 People v. Martinado, 214 SCRA 712, 732 [1992]; People v. Pama, 216 SCRA 385, 401 [1992];
People v. de la Cruz, 207 SCRA 632, 648 [1992].
60 People v. Pama, 216 SCRA 385, 401 [1992]; People v. Rostata, Jr., 218 SCRA 657, 678 [1993];
People v. Liquiran, 228 SCRA 62, 74 [1993]; People v. Canillo, 236 SCRA 22, 42 [1994].
61 The penalty prescribed in Article 251 is prision mayor.
62 People v. Boniao, 217 SCRA 653, 672 [1993]; People v. Cordova, 224 SCRA 319, 347-348
[1993].
63 Articles 14 (16), Revised Penal Code.
64 TSN, 20 August 1992, 14, 17-18, 21-22.
65 TSN, 18 September 1992, 7-8.
66 People v. Hubilla, Jr., 252 SCRA 471, 482 [1996]; People v. Compendio, 258 SCRA 254 [1996].
67 Article 14(21), Revised Penal Code.
68 People v. Alban, 245 SCRA 549, 560 [1995].
69 Article 13 (7), Revised Penal Code.
70 I LUIS B. REYES, THE REVISED PENAL CODE 293 (12th ed., 1981).
71 People v. Lee, 204 SCRA 900, 911 [1991]; People v. Tismo 535, 558-559 [1991]; People v.
Devaras, 205 SCRA 676, 694 [1992]; People v. Gomez, 235 SCRA 444 [1994].
72 Exhibit "M"; OR, 149; TSN, 8 October 1992, 14-15. Kagawad Lagman's testimony on the
surrender was dispensed with by the trial court since the police record of the surrender was
admitted by the defense. (Order of 21 September 1992; OR, 150.)
73 OR, 35.
74 TSN, 8 October 1992, 17-18; TSN, 9 October 1992, 8.
75 People v. Clemente, 21 SCRA 261, 268-269 [1967], cited in L.B. REYES, op. cit., at 300.
76 Brief for Plaintiff-Appellee, 13; Rollo, 149.

77 R.A. No. 7160 (Book III, Title I, Chapter 2).

78 AQUILINO Q. PIMENTEL, THE LOCAL GOVERNMENT CODE OF 1991, 416 [1993].

EN BANC

[G.R. No. 152289. January 14, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. MARLON JUAN Y LESTE, appellant.

DECISION
CORONA, J.:
Before us for automatic review is the decision[1] of the Regional Trial Court of Aparri, Cagayan, Branch 8,
Second Judicial Region, finding the appellant, Marlon Juan, guilty beyond reasonable doubt of the crime of
parricide and sentencing him to suffer the supreme penalty of death.
The information dated July 24, 2001 charged appellant with the crime of parricide as follows:
That on or about April 23, 2001, in the municipality of Aparri, province of Cagayan, and within the jurisdiction
of this Honorable Court, the above-named accused, armed with a knife and a *sic+ asador, with intent to kill,
did then and there willfully, unlawfully and feloniously assault, attack and stab one Yolanda Juan y Leste, his
legitimate mother, inflicting upon her multiple stab wounds which caused her death.
CONTRARY TO LAW.[2]
Upon arraignment on September 17, 2001, appellant, duly assisted by counsel de oficio, pleaded guilty to
the crime charged.[3]
During the pre-trial conference on October 11, 2001, appellant admitted the following facts presented by
the prosecution:
1.

identity of the accused that whenever the name Marlon Juan was mentioned, it referred to
the accused;

2.

identity of the victim Yolanda Juan;

3.

that accused Marlon Juan was the son of the victim and that the victim was the legitimate
mother of the accused;

4.

that the accused killed the victim on April 23, 2001 inside the victims house at Barangay Punta,
Aparri, Cagayan with the use of a pointed iron bar; and

5.

that the victim died of multiple stab wounds as shown by the medical certificate and the post
mortem report issued and signed by Dr. Robert Ogalino.[4]

Thereafter, trial on the merits ensued.

On January 9, 2002, the trial court promulgated its decision, the dispositive portion of which read:
WHEREFORE, the Court finds accused Marlon Juan y Leste GUILTY beyond reasonable doubt of the crime of
Parricide for killing his mother and is hereby sentence *sic+ to suffer the supreme penalty of DEATH.
SO ORDERED.[5]
The facts follow.
On April 23, 2001, around 10:00 p.m., Yolanda Juan opened the door of their house to let her son, herein
appellant Marlon Juan, in. Deogracias Juan (Yolandas husband and appellants father) who was resting inside
their bedroom could hear his wife and sons voice. Appellant who was high on drugs demanded delicious food
for dinner. Moments after, Deogracias heard the throwing and breaking of plates. Then he heard Marvin
(appellants brother) yelling Ni Nanang natayen (Mother is dead already). Deogracias immediately
proceeded to the porch where Marvins voice came from and saw appellant in the act of stabbing
Marvin. Deogracias grabbed the asador (pointed iron bar) from the appellant and they wrestled for its
possession. Eventually, Deogracias got control of the asador. Appellant then drew a knife from his waist and
tried to stab Deogracias but the latter was able to wrest the knife away from the appellant. Appellant ran
away. When Deogracias finally turned his attention to his wife, only then did he realize that indeed she was
already dead. Yolanda was lying face down on the floor, no longer breathing. Deogracias nevertheless still
brought her to the hospital where she was pronounced dead on arrival. [6]
The statement of Marvin Juan to the effect that he was the brother of the accused and that he saw the
accused kill their mother was no longer heard by the trial court because the appellant admitted the truth of
such testimony.[7]
The prosecution formally offered the following documentary evidences: (1) death certificate (Exhibit A)
and postmortem examination report (Exhibit B) to prove the death of the victim and (2) birth certificate of
appellant Marlon Juan to prove that he was the legitimate son of the victim. [8]
The defense waived the presentation of appellants evidence.[9]
On the basis of the evidence presented by the prosecution which was not refuted by the defense, the trial
court ruled that it was clear as the snow of the Alps that appellant was guilty of the crime of parricide and
sentenced him to suffer the supreme penalty of death.[10]
Appellant is before us, not to question his conviction for the crime of parricide by the trial court but to
question the death penalty imposed on him. Appellant contends that the proper penalty imposable on him
is reclusion perpetua, not death.[11]
The appeal is meritorious.
Under Article 246 of the Revised Penal Code (hereafter the Code), the crime of parricide is punishable
by reclusion perpetua to death. Since the penalty for the crime of parricide is composed of two indivisible
penalties (reclusion perpetua to death), the imposition of the proper indivisible penalty on appellant is
governed by Article 63 of the Code which provides:
Article 63. Rules for the application of indivisible penalties.
x x x

x x x

x x x

In all cases in which the law prescribes a penalty composed of two indivisible penalties the following rules shall
be observed in the application thereof:
1.

When in the commission of the deed there is present only one aggravating
circumstance, the greater penalty shall be applied.

2.

When there are neither mitigating nor aggravating circumstances in the commission of
the deed, the lesser penalty shall be applied.

3.

When the commission of the act is attended by some mitigating circumstance and there
is no aggravating circumstance, the lesser penalty shall be applied.

4.

When both mitigating and aggravating circumstances attended the commission of the
act, the courts shall reasonably allow them to offset one another in consideration of
their number and importance, for the purpose of applying the penalty in accordance
with the preceding rules, according to the result of such compensation.

Based on the above provision, the presence of any mitigating or aggravating circumstances must first be
determined for the imposition of the proper penalty.
In this case, no aggravating circumstances were alleged in the information. Thus, no aggravating
circumstances can be appreciated against the appellant. With regard to the presence of any mitigating
circumstances, we find that appellant is entitled to the mitigating circumstance of voluntary confession of
guilt.
Article 13 (7) of the Revised Penal Code provides that an accused is entitled to the mitigating
circumstance of voluntary confession of guilty if he had voluntarily confessed his guilt before the court prior
to the presentation of evidence by the prosecution. The following requisites must concur: (1) the accused
spontaneously confessed his guilt; (2) the confession of guilt was made in open court, that is, before a
competent court trying the case; and (3) the confession of guilt was made prior to the presentation of
evidence by the prosecution.[12]
In this case, appellant made his confession of guilt before the presentation of evidence by the
prosecution since he pleaded guilty during the arraignment. The appellant also confessed voluntarily and
spontaneously despite knowing the serious nature of the charge against him. [13] Lastly, appellant made his
confession openly, that is, before the judge and the parties in a hearing. Clearly therefore, all the requisites
of the mitigating circumstance of voluntary confession were present.
With one mitigating circumstance (voluntary confession of guilt) and no aggravating circumstance, Article
63 of the Revised Penal Code provides that in cases in which the law prescribes a penalty composed of two
indivisible penalties. . . [the lesser penalty shall be applied] when the [crime] is attended by some mitigating
circumstances and there is no aggravating circumstances. Thus, since the crime of parricide is punishable
by reclusion perpetua to death, the lesser penalty of reclusion perpetua should have been imposed by the trial
court on appellant, not the penalty of death.
Other than the penalty imposed, we find no error in the ruling of the trial court that the appellant was
guilty of the crime of parricide since it was clear that appellant killed his mother. As discussed by the trial
court, all the elements of the crime of parricide were clearly and sufficiently proved by the prosecution:
As to the first element which is, that a person is killed, there is an overwhelming evidence both testimonial
and documentary that absolutely show that Yolanda Juan was killed and died due to stab wounds. The death

certificate, Exhibit A (p. 6 rec.) lucidly and clearly show that Yolanda Juan died and the cause of death is
cardio-respiratory arrest due to multiple stab wounds. Moreover, the accused through his counsel de oficio
during the pre-trial conference admitted that the victim died of multiple stab wounds. . . . Finally, the
proffered testimony of Marvin Juan, brother of the accused that he saw the accused killed [sic] the victim was
admitted by the accused through his counsel.
x x x

x x x

x x x

As to the existence of the second element, which is, that the deceased is the mother of the accused, there is
no iota of doubt on the part of the court to conclude that the victim is indeed the mother of the
accused. Exhibit C, the Birth Certificate of accused Marlon Juan (p. 39 rec) . . . indubitably show with clarity
that Yolanda Leste Juan is indeed the mother of . . . the herein accused. Further, the accused through his
counsel de oficio admitted during the pre-trial conference that, [he] is the son of the deceased.
x x x

x x x

x x x

As to the presence of the third element [the last element] which is, the deceased is killed by the accused, the
court again is very certain that the accused is the author of the crime. . . not only because he pleaded
GUILTY to the crime of Parricide but because of the overwhelming evidence that positively identify him as
the perpetrator of the offense. Again, during the pre-trial of the case, the accused admitted through his
counsel that he killed the victim on April 23, 2001 at the victims residence at Punta, Aparri, Cagayan with the
use of a pointed iron bar (par. 4, Stipulation of Facts, Order dated October 11, 2001; pp. 30-31 rec). Also, the
proffered testimony of Marvin Juan, brother of the accused, that he saw the accused killed the victim was
admitted by the counsel for the accused (Order dated November 21, 2001; pp. 36-37 rec). Finally, the open
court testimony of accuseds father, Deogracias Juan, that when his son Marvin shouted Mother is already
dead, he immediately rose up from where he was lying and proceeded to the place where Marlon was and
saw the latter on motion to stab Marvin and saw his wife Yolanda already sprawled on the floor speaks
eloquently of the fact that accused Marlon Juan was in the process of a stabbing frenzy. In fact, he was able to
injure his brother Marvin after stabbing successively to death his own mother. Thus, the accused having
admitted his guilt coupled by the overwhelming evidence positively showing and identifying him to be the
killer of his mother; the third element is therefore present.[14]
We affirm the above ruling of the trial court for being in accordance with the law and the evidence on
record. Consequently, although we uphold the conviction of appellant Marlon Juan of the crime of parricide,
the proper penalty is reclusion perpetua, not death.
WHEREFORE, the decision of the Regional Trial Court of Aparri, Cagayan, Branch 8, in Criminal Case No.
08-1318, finding the appellant, Marlon Juan, guilty beyond reasonable doubt of the crime of parricide is
hereby AFFIRMED with the MODIFICATION that appellant is hereby sentenced to suffer the penalty
of reclusion perpetua instead of death.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.

[1]

Penned by Judge Conrado F. Manauis, Rollo, pp. 7-15.

[2]

Rollo, p. 4.

[3]

The trial court read the information to the appellant in Ilocano, the dialect appellant speaks and
understands. Records, p. 26.

[4]

Records, p. 30.

[5]

Rollo, p. 15.

[6]

TSN, November 20, 2001, pp. 2-9.

[7]

Records, p. 36-37.

[8]

Ibid.

[9]

Id.

[10]

Id., pp. 5-9.

[11]

Rollo, pp. 31-36.

[12]

People vs. Crisostomo, 160 SCRA 47 [1988]; People vs. Bueza, 188 SCRA 683 [1990].

[13]

The trial court read to the appellant the information in Ilocano, the dialect he speaks and understands.
Records, p. 26.

[14]

Rollo, pp. 11-14.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-30281 August 2, 1978
THE PEOPLE OF THE PHILIPPINES, plaintiff,
vs.
CELESTINO GARILLO Y ORJEL alias CELING (deceased) and FEDERICO FERNANDEZ Y ARELLANO
AliasPUTOL, accused.
T.R. Dominguez for appellant.
Office of the Solicitor General for appellee.

CONCEPCION JR., J.:

Automatic review of the decision rendered by the Circuit Criminal Court of Rizal in Case No. CCC-VII-55 (P.C.
8163), finding the accused Celestino Garillo y Orjel alias Celing and Federico Fernandez y Arellano alias Putol
guilty of the crime of Robbery with Homicide and sentencing each of them to suffer the penalty of Death; to
indemnify the heirs of the offended party the amount of P12,000.00, jointly and severally, and to pay the
costs. Celestino Garillo y Orjel alias Celing died in the National Penitentiary at Muntinglupa, Rizal on August
16, 1970 and his appeal was dismissed by the Court December 9, 1970. 1
It is of record that Lim Tao Sing was the owner and operator of the Excel Ice Drop Factory located at No. 2504
Taft Avenue, Pasay City. His uncle, Lim Ping Suy assisted him in the management of said factory. The factory
was housed in a two-storey building, the upper floor of which was used by Lim Tao Sing as his sleeping
quarters. The ground floor contained the factory equipment and the sleeping quarters of some of the factory
workers. Lim Ping Suy resided elsewhere and went to the factory only in the daytime.
In the early evening of October 31, 1968, Lim Tao Sing and Lim Ping Suy counted their money, amounting to
P3,200.00 which had been set aside for the operating expenses of the factory, such as wages, house rentals,
and light and water bills. They also examined the jewelry, consisting of a necklace, a bracelet, a gold ring, a
diamond ring, and other kinds of rings, all valued at P1,800.00, which Lim Ping Suy bought for his nephew and
which the latter had intended to send as gifts to his children in China. Afterwards, they put the money and
jewelry inside a trunk which Lim Tao Sing kept in his bedroom. Lim Ping Suy then left for home.
In the evening of November 1, 1968, All Saints' Day, Henry Barillo and Alejandro Buco alias Tangkad, workers
in the factory slept, as usual, on the ground floor of the factory. The room was well lighted with flourescent
lamps because the generator of the factory operated for twenty four hours. At about 11:00 o'clock that night,
Henry Barillo woke up because he felt that he was being tied up. True enough, Henry Barillo saw his own coworkers at the plant, Tangkad, tying him up, while another person was pointing a gun at him (Barillo). Barillo
also saw three more persons, two of whom were armed with knives, emerging from a hole which the culprits
made on the plywood wall and then enter the factory. Barillo was ordered to lie face downwards but he saw
three men, including Tangkad, go upstairs to the room occupied by Lim Tao Sing. A little later, he heard a shot,

followed by the moans of Lim Tao Sing. Soon thereafter, he saw the men coming downstairs. They left the
place in a hurry, all of them running.
About an hour later, Barillo saw, through the hole in the wall, one Norberto, an ice drop vendor, whom Barillo
requested to call for the police. Two policemen arrived and Barillo was untied Then Barillo and a policeman
went upstairs. They found the room of Lim ransacked and Lim Tao Sing dead and covered with a mosquito net
soaked with his own blood. They saw the box, which had contained the money and jewelry, destroyed and
emptied of its contents.
The body of the deceased Lim Tao Sing was brought to the NBI morgue for autopsy and the medical examiner
reported that Lim Tao Sing died of multiple stab wounds in the body. 2
Three persons, Celestino Garillo y Orjel alias Celing, Alejandro Buco y Valdez alias Tangkad, and Federico
Fernandez alias Putol, were arrested and charged with the commission of the crime of Robbery with
Homicide. Three other suspects remained at large. Garillo and Fernandez pleaded not guilty while Alejandro
Buco y Valdezalias Tangkad entered a plea of guilty and was sentenced by the court to suffer the penalty
of reclusion perpetua.3 Garillo and Fernandez were subsequently found guilty of the crime charged and
sentenced to suffer the death penalty. Garillo died in prison and his appeal was subsequently dismissed by this
Court. Hence, We are concerned only with the case of Fernandez.
No doubt, there was a conspiracy to rob the Excel Ice Drop Factory. Alejandro Buco y Baldez alias Tangkad
admitted that the plan to rob the Chinaman who owns and operates the Excel Ice Drop Factory was hatched
up and proposed to him by Gaudencio Garillo alias Gauding, Celestino Garillo alias Celing, Roberto Quinto alias
Berto, and Guillermo alias Emot in the morning of November 1, 1968. 4 The deceased Celestino Garillo y Orjel
alias Celing likewise admitted that the plan to rob the said Chinaman was proposed to him by Gauden, Berto
and Emot. 5 The accused Federico Fernandez y Arellano alias Putol was also aware of the said plan. He denies,
however, that he was a co-conspirator, claiming that he was merely told of the plan to rob the ice drop
factory; that he was further told by them that if he did not want to go with them in robbing the Chinaman, he
should merely keep quiet and they will give him something, to which he answered that it was up to them that
he was asked to accompany them in order to act as look-out or guard outside (bantay sa labas) to which he
added because he was afraid of Alejandro Buco y Valdez alias Tangkad who has a tatoo "Simaron- Oxo" in his
hands, but that he left the place when the conspirators started to destroy a portion of the wall of the ice drop
factory. 6
Counsel de oficio contends that it is obvious from the evidence that the accused Fernandez was not a party to
the plan to commit the robbery since he was merely told of the plan and that he never agreed to participate in
the commission thereof as shown by his leaving the place when the conspirators started to break the factory's
wall preparatory to their entering the premises; and that if Fernandez had made a pretense, in the beginning,
of joining the conspirators as a look-out or guard outside, it was because of his fear of displeasing the
mastermind, Alejandro Buco alias Tangkad, who was a member of the notorious OXO gang and had a tattoo
mark Simaron-Oxo " in his hands.
The disclaimer of participation in the conspiracy and desistance in the commission thereof is, however,
negated by the statement of Fernandez that he fled to Barrio Bicutan, Taguig, Rizal very early in the morning
of the next day and thence to Angeles, Pampanga where he stayed in a house together with some of the
conspirators. His statement reads, as follows:
t Iyo bang nalaman kung ano ang nangyari sa binalak o pinagusapan ninyong
holdap sa intsik sa loob ng pabrikang ice drop?

s Ang nalaman ko po ay pinatay nila ang intsik, dahil sa huli si Celing (Celestino
Garillo) na tumakbo at sinabi sa akin na huag akong maingay at napatay namin
ang intsik.
t Ng malaman mo ang nangyari, ano ang iyong ginawa?
s Kinabukasan ng umagang-umaga puminta ako kay Dado (Diosdado Paraiso y
Flores, 26, lab., add Bo. Bicutan, Tagig, Rizal), sa kanila sa Bicutan Tagig, Rizal
at akin ipinagtapat ang nangyari. Ang ginawa niya ay isinama ako sa Angeles,
Pampanga at iniwanan ako ruon para don na ako magtabas ng tubo, dahil
ngayon ng tabasan ng tubo.
t Magkano ang na parte mo sa holdap na isinagawa ninyo?
s Wala po, dahil ng magkita-kita kami ni Berto at Goding sa Angeles, Pampanga
at akin tinanong kung ano na ang nangyari ang sinabi po nila sa akin ay walang
nakuha dahil pumutok ang baril at napatay ang intsik dahil sa lumaban.
xxx xxx xxx
t Sino naman ang nagsama kay Goding at Berto sa Angeles, Pampanga?
s Si Berto si Berto ang nagsama kay Goding, dahil bayaw no Dado (Diosdado
Paraiso) at meon o kapatid ni Berto ang amin tinuluyan. (See Exh. M, pp. 78,
Orig. Record).
If Fernandez were innocent as he claimed to be, there is no reason for him to run away and hide together with
some of the conspirators. "The wicked flee when no one is chasing them. But the godly are bold as lions. 7
The evidence thus presented proves conspiracy and that the accused Federico Fernandez not only knew of the
plan to rob Lim Tao Sing, but also participated in its commission by previous and simultaneous acts (by acting
as look-out or guard outside) which lent to the accomplishment of the criminal intent. Although the said
accused may not have foreseen the killing of the victim and did not take part in its execution, he is,
nevertheless, guilty of the crime of robbery with homicide. The rule is that when homicide takes place as a
consequence of or on occasion of a robbery, all those who took part in the robbery shag be guilty as
principals of the crime of robbery with homicide, unless there is proof that they have tried to prevent the
killing. 8 Here, there is nothing in the record which would show that the accused Fernandez ever attempted to
prevent the homicide.
The said accused is, therefore, guilty of the crime of robbery with homicide, covered by Article 294, No. 1, of
the Revised Penal Code. The trial Court found that the commission of the crime was attended by the
aggravating circumstances of nighttime, superior strength, evident premeditation, and treachery.
Evident premeditation, however, if not considered. Is an aggravating circumstances in crimes Of robbery
because the same is inherent in the crime, especially where it is committed by various persons since there
must be an agreement and the plotters have to meditate and reflect on the manner of carrying out the crime
and they have to act coordinately in order to succeed. In the crime of robbery with homicide, there should be
evident premeditation to kill besides stealing, in order that it can be considered as an aggravating
circumstance. 9 In the instant case, it has not been proven that the accused, before committing the crime,

planned and decided, not only to steal, but also to kill Lim Tao Sing. Hence, evident premeditation cannot be
considered as an aggravating circumstance in this case.
Abuse of superior strength cannot also be appreciated in the instant case in the absence of proof of the
relative physical strength of the aggressors and the victim and that the assailants took advantage of their
combined strength in order to consummate the offense. 10
Treachery is likewise absent in this case since the attack was made upon the impulse of the moment, as a
sequence of the unexpected turn of events. 11 It appears that while Tangkad, Celing, Gauden, and Berto were
in the second floor, used by Lim Tao Sing as his sleeping quarters, the gun held by Gauden hit a table and
misfired. As a result, Lim Tao Sing rose from his bed holding a bolo. So, some of the accused stabbed him. 12
But, nocturnity is present since the accused purposely sought the cover of darkness of the night in
committing the crime. However, this aggravating circumstance is offset by the mitigating circumstance that
appellant suffers some physical defect which thus restricts his means of action, defense, or communication
with his fellow beings, to wit: appellant's right hand is missing as a consequence of an accident involving
kuwitis" which occurred on New Year's eve of 1966. 13
Premises considered, the judgment imposed upon the accused Fernandez should be reduced to reclusion
perpetua.
WHEREFORE, modified as thus indicated the appealed decision is hereby affirmed in an other respects.
SO ORDERED.
Fernando, Barredo, Makasiar, Aquino, Santos, Fernandez and Guerrero, JJ., concur.
Castro, J., concurs in the result.
Teehankee and Antonio, JJ., took no part.

Separate Opinions

MUOZ PALMA, J., dissenting:

The evidence of the prosecution to which Judge Onofre A. Villaluz of the Criminal Circuit Court of Rizal
referred for his findings that Federico Fernandez was a co-principal in the commission of the robbery and
killing of the chinaman Lim Tao Sing, consist solely of the oral testimony of the alleged lone eyewitness Henry
Barillo, the extrajudicial statement of one of the accused Celestino Garillo marked as Exhibit "D" and that of
appellant herein Federico Fernandez marked as Exhibit "M". 1 Thus, the trial judge stated inter alia in his
decision that: (a) "after tying Henry Barillo, the accused Celestino Garillo, armed with a balisong, Federico
Fernandez and Roberto Guinto, both were armed, entered the said factory" (p. 11 of decision); (b) "the three
accused in this case were positively Identified by the witness Henry Barillo" (p. 23, Ibid.); and (c) "based on the

statements of the two accused, marked as Exhibits 'D' and 'M' the said accused, Celestino Garillo and Federico
Fernandez acknowledged having committed the crime when all of them were armed with deadly weapons and
firearms. "(ibid.) (Emphasis supplied)
The above findings insofar as Federico Fernandez is concerned are not borne out by evidence alluded to by His
Honor.
The testimony of the prosecution witness Barillo given during the direct as well as the cross examination
shows that this witness positively Identified only two of the accused in the case, namely, Alejandro Buco alias
"Tangkad", who pleaded guilty and Celestino Garillo alias "Celing" now deceased. 2 While it is true that Barillo
declared that aside from the accused Alejandro Buco alias "Tangkad" who tied him with a rope and accused
Celestino Garillo who pointed a gun at him, three other persons entered the factory through an opening made
on the plywood wall, he never mentioned the name of appellant Federico Fernandez alias "Putol" as one of the
three other persons who entered the factory nor did he point at and Identify Fernandez in open court as one
of the perpetrators of the crime charged.
Let us now examine and analyze the documentary evidence Exhibits "D" and "M", Exhibit "D" is the
extrajudicial statement of the accused now deceased Garillo. The pertinent portions of the statement are
quoted hereunder:
xxx xxx xxx
T Kung gayon isalaysay mo sa iyong sariling pananalita kung papaano naganap
ang sinasabi mong pagkaka-hold-up at pagkakapatay sa intsik.
S Ang natatandaan ko, nuong pista ng patay, mga alas 9:00 ng gabi, pumunta
sina Gaudin ang pangalan na tunay niya, Gaudencio Garillo, Berto, tunay na
pangalan, Roberto Quinto, saka si Emot pangalan, Guillermo, hindi ko alam ang
apilyido niya, sa kinaroruonan, ko sa may tambakan sa likuran ng terminal ng LTB
sa Pasay; Inaya nila ako na pumunta kami sa pabrika ng Ice Drop sa Taft Ave.
Pasay; Sumama naman ako sa kanila; Nagdaan muna kami sa bahay nila Putol
(Federico Fernandez) diyan sa malapit sa Zamora St., dito rin sa Pasay; Inabutan
namin siya duon;
T Bago ka sumama sa tatlong kataong sinasabi mo, sina Ber to, Gauden at Emot
ano naman ang sabi nila sa iyo na inyong pupuntahan nuon?
S Mayroon daw intsik na hohold-apin namin
T Sa kabila ng pagkaka-alam mo na gayon nga anginyong gagawin, sumama ka pa
rin sa kanila, ganoon ba?
S Sumama na rin ako sa kanila.
T Bago kayo nakarating sa inyong pinuntahan na pabrika ng ice drop sa Taft Ave.,
ano naman ang inyong pinag-usapan sa dean?
S Basta sumama raw ako, mayroon hohold-apin, sila ang bahala.

T Ng kayo'y dumating sa bahay nitong si Putol na sinasabi mo, ano pa ang

sumunod na pangyayari.
S Napag-usapan namin duon kung ano ang gagawin ng bawat isa sa namin na
pang-hohold-up; Napag-usapan namin duon, si Tangkad ang nakaka-alam lahat
ng gagawin; Pinuntahan na namin iyong pabrika ng ice drop; Si Tangkad nuon,
nasa loob na ng ice drop factory; Itong si Gauden, pumasok sa butas duon sa may
likod ng bahay; Tapos, sumunod na ako sa kaniya: Nandoon na kami sa loob ng
pabrika; Inabutan na naman si Tangkad sa loob; Ng nandoon na kami nina
Gauden, Tangkad, sumunod itong si Berto sa loob; Ngayon, apat na kami sa loob;
Naiwanan si Emot saka si Putol sa labas ng pabrika; Nakita namin sa ibaba ang
isang tao, nakagapos na iyon;
T Nalalaman mo ba naman kung sino ang may gawa nito?
S Nalaman ko na lang ng nasa loob na kami na siTangkad ang naggapos niyon.
xxx xxx xxx
T Bago kayo magtungo sa pinang-hold-apan ninyo na ayon sa iyo, sino-sino
naman ang nalalaman mong may dala ng mga patalim nuon?
S Si Gauden, may dalawang dala, isang balisong, isang paltik, kasi isang putok
lang ang baril eh; Si Tangkad, balisong din ang hawak, nakita ko iyon sa loob eh;
Si Berto may dala rin balisong din iyon; Ako, may dala rin balisong, bente nueve;
Si Emot hindi ko alam kung may data; Si Putol, wala, basta duon lang siya sa
labas:
xxx xxx xxx
(65-67, original record)
The foregoing demonstrates that (1) Fernandez did not enter the ice drop factory but remained outside during
the robbery, and (2) Fernandez was not at all armed on that occasion.
Exhibit "M" is the extrajudicial statement of appellant Fernandez wherein the latter narrated about the plan to
rob the chinaman in the ice drop factory and named the five persons hatching the plan; that he was asked to
go with the group to stand guard outside the factory; that they all went to the ice drop factory as named and
he stood outside as instructed; that while his companions were breaking down the wan he left the place and
went home, and some time later he heard a shot. Quoted hereunder are the pertinent portions of Exhibit "M"
xxx xxx xxx
T Ano ang kaugnayan at nalaman mo tungkol sa sinasabi mong hold-up sa intsik?
S Ganito po iyan. Ako po ay pinuntahan nila sa bahay, dahil sa alam nila na palagi
akong istambay sa ice drapan malapit po ang bahay ko sa ice drapan Sinabi nila
sa akin na huhold-apin ang intsik na katiwala sa pabrika ng ice drop. Halagang
limang libo (P5,000.00) raw po ang nakuha. Ang sabi nila kung ayaw ko man

sumama ay basta huag na lang akong maingay at sila ang bahala. Bibigyan na
lang nila ako. Ang sagot ko po sa kanila ay kayo ang bahala. Umalis na sila.
Pagkagabihan bumalik po sila sa akin sa bahay, mga pagitan nga po ng alas 11 at
12 ng gabi, Nobiembre 1, 1968. Papasukin at huhold-apin na nga po ang intsik sa
loob ng pabrika. isinama po ako para bantay sa labas at sila ang papasok.
T Bago ka magpatuloy sa iyong salaysay, sinu-sinong sila ang nais mong tukuyin
na siyang nagdaan sa iyo sa bahay at pinagusapan ang hold-up sa intsik sa loob
ng pabrika ng ice drop?
S Si Gaudencio, si Berto, ito po si Celing (Celestino Garillo y Orgel, 18, s, porter sa
Divisoria Market, add - 551 E. De los Santos Ave., PC), si Imot at saka si Tangkad,
(declarant pointing to Alejandro Buco y Valdez, @ "CIMARON", 32, m. lab.,
address, Bakawan St., Pasong Tamo, Makati Rizal). Lima (5) po silang lahat at
bilang pang anim (6) ako.
T Dito sa lima (5) na nagpunta sa iyo sa bahay at nagsabi sa iyo na huhold-apin
ang intsik sa loob ng pabrika ng ice drop at ikaw ay pinagsasama pa para bantay,
ilan ang iyong talagang kilala?
S Sila pong lahat ay kilala ko, dahil sa madalas ho silang magpunta sa pabrika
hanggang sa kami po ay magkakilakilala.
T Ito ba rin lima (5) na iyong binanggit sa una ang siyang sinasabi mong bumalik
sa iyo sa bahay ng gabi rin ng Nobiembre 1, 1968, pistang mga patay para
isagawa ang hold-up na binalak o pinag-usapan ng tanghali ng araw ng pista ng
patay Nobiembre 1, 1968?
S Sila rin pong lahat.
T Ipagpatuloy mo ang iyong salaysay, tumigil ka sa ikaw ay isinama para bantay
sa labas at sila ang papasok.
S Opo. Ng sinisira po nila ang dingding ng pabrika ng ice drop, ang ginawa ko po
umuwi ako sa bahay namin. Hindi nagtagal nadinig ko pumutok. Ngayon
pagkaraan po ng putok na iyon ay nakita kong nagtakbuhan sila. Sa tabi po ng
bahay sila nagdaan. Umakyat sila sa pader dahil sarado na po ang pinto
papuntang Zamora. Hindi ko na po nalaman kung saan sila mga nagpunta.
T Iyo bang nalaman kung ano ang nangyari sa binalak o pinagusapan ninyong
holdup sa intsik sa loob ng pabrikang ice drop?
S Ang nalalaman ko po ay pinatay nila ang intsik dahil sa huli si Celing (Celestino
Garillo) na tumakbo at sinabi sa akin na huag akong maingay at napatay namin
ang intsik.
xxx xxx xxx
(pp. 77-78, original record)

Nowhere in the foregoing narration of Federico Fernandez did he ever admit that he was armed on that
occasion, or that he entered the factory with the group, as stated in the trial court's decision.
On what then can the conviction of appellant Fernandez stand? There is proof of the corpus delicti that is, the
robbing and killing of the chinamanyes, that is true; but what evidence links Fernandez to the crime
committed? I agree with appellant's de oficio counsel, Atty. Teodoro R. Dominguez, that there is none under
the law.
As there is nothing in the testimony given in court by the witness Henry Barillo which directly or indirectly
connects Federico Fernandez to the robbery and killing of the ice drop factory owner, all that We have are the
extrajudicial statements Exhibits "D" and "M", and We may even include Exhibit "L" which is the statement of
the other accused Alejandro Buco.
Defense counsel correctly argues in his brief that Exhibits "D" and "L" are "incompetent and inadmissible
evidence against his client, Federico Fernandez" (p. 17 of brief) invoking the maxim res inter alias acta alteri
nocere non debet embodied in section 25, Rule 130 of the Rules of Court which provides:
The rights of a party cannot be Prejudiced by an act, declaration, or omission of another, and
proceedings against one cannot affect another, except as hereinafter provided.
It is a settled rule. hat an extrajudicial confession made by a defendant is admissible against him but not
against his codefendant as to whom said confession is hearsay evidence for he had no opportunity to examine
the former.3
And on the premise that appellant Fernandez is alleged to be a co-conspirator, We have the rule that the act
or declaration of a conspirator relating to the conspiracy or its existence may be given in evidence against the
co-conspirator after the conspiracy is shown by evidence other than such act or declaration. 4
In order that Exhibits "D" and "L" may be admitted as evidence against appellant Fernandez as a coconspirator it is necessary that there be proof of the conspiracy independent of said extrajudicial statements;
here there is no such independent proof and in its absence, no conviction can stand simply on the basis of said
statements. 5
Another point not to be overlooked is that the accused Garillo while testifying in court in his
defense denied that he implicated Federico Fernandez in his statement, Exhibit "D". 6
Verily, it is well to repeat here what the Court pronounced in People vs. Custodio that "considering the farreaching consequences of criminal conspiracy, the same degree of proof required for establishing the crime is
required to support a finding of its presence, that is, it must be shown to exist as clearly and convincingly as
the commission of the offense itself." 7
Finally, there is the supposed "confession", Exhibit "M" wherein according to the trial Judge, the appellant
Fernandez acknowledged having committed the crime."
In my view Exhibit "M" is not to be given the weight and evidentiary value of an extrajudicial confession of
guilt. As already indicated earlier, Fernandez narrated in Exhibit "M" the plan of five persons to rob the owner
of the ice drop factory and that he was asked to accompany those persons and to act as guard outside the
factory and on the particular evening they all went to the place. But that was all insofar as he was concerned,

for according to appellant while he was standing outside the factory and the five persons were breaking open
the wall he left the place and went home. This is an act of voluntary desistance.
The distinctive feature of a confession is that it must be an acknowledgment of guilt without
any exculpating statements or explanation. However, if the prosecution undertakes to prove
statements of the accused as his confession, any exculpating statements which he made at the
time are admissible in his favor. (Bram vs. United States, 168 U.S. 532, 42 L.ed. 568 16 S. Ct.
183, cited in Martin, Rules of Court in the Philippines, Vol. 5, 1974 Ed., p. 251)
There is in every design or plan to commit a crime a place of repentance or locus penitentiae
whereby the one planning to commit it may abandon the Idea and thus avoid criminal liability.
This is true where one of the persons who has entered into a conspiracy, necessarily involving
an overt act, abandons the plan before the act if done. (15 Am Jur 333, p. 22 citing U.S. v.
Britton, 108 U.S. 199, 27 L. ed. 698, 2 S. Ct. 531; State v. Webb, 216 Mo 378, 115 S.W. 998, 20
L.R.A. (N.S.) 1142, 129 Am. St. Rep. 518, 16 Ann. Cas 518)
Article 6, paragraph 3 of the Revised Penal Code exempts from liability those who spontaneously desist from
the commission of a felony.
The voluntary desistance of appellant herein from the criminal act of assisting his co-accused before the crime
was committed warrant-his acquittal.
One last point. The main Opinion of the Court heavily relies on the statement of appellant Fernandez in Exhibit
"M" that he went to Barrio Bicutan, Taguig, Rizal very early in the morning of the next day and thereafter to
Angeles, Pampanga where he stayed in a house together with the other accused, Berto and Gauden, as
indicative of his guilt.
It is the better rule however that evidence of flight is not substantive evidence of guilt; 8 that it is merely a
circumstance tending to establish guilt, not in itself conclusive, nor can it create a legal presumption of guilt. 9
In the absence of separate admissible evidence tending to establish the guilt of appellant Federico Fernandez,
his departure for Angeles, Pampanga is at the most a circumstantial evidence but insufficient in itself to
warrant his conviction.
ACCORDINGLY, I vote for the acquittal of Federico Fernandez.

Separate Opinions
MUOZ PALMA, J., dissenting:
The evidence of the prosecution to which Judge Onofre A. Villaluz of the Criminal Circuit Court of Rizal
referred for his findings that Federico Fernandez was a co-principal in the commission of the robbery and
killing of the chinaman Lim Tao Sing, consist solely of the oral testimony of the alleged lone eyewitness Henry
Barillo, the extrajudicial statement of one of the accused Celestino Garillo marked as Exhibit "D" and that of
appellant herein Federico Fernandez marked as Exhibit "M". 1 Thus, the trial judge stated inter alia in his

decision that: (a) "after tying Henry Barillo, the accused Celestino Garillo, armed with a balisong, Federico
Fernandez and Roberto Guinto, both were armed, entered the said factory" (p. 11 of decision); (b) "the three
accused in this case were positively Identified by the witness Henry Barillo" (p. 23, Ibid.); and (c) "based on the
statements of the two accused, marked as Exhibits 'D' and 'M' the said accused, Celestino Garillo and Federico
Fernandez acknowledged having committed the crime when all of them were armed with deadly weapons and
firearms. "(ibid.) (Emphasis supplied)
The above findings insofar as Federico Fernandez is concerned are not borne out by evidence alluded to by His
Honor.
The testimony of the prosecution witness Barillo given during the direct as well as the cross examination
shows that this witness positively Identified only two of the accused in the case, namely, Alejandro Buco alias
"Tangkad", who pleaded guilty and Celestino Garillo alias "Celing" now deceased. 2 While it is true that Barillo
declared that aside from the accused Alejandro Buco alias "Tangkad" who tied him with a rope and accused
Celestino Garillo who pointed a gun at him, three other persons entered the factory through an opening made
on the plywood wall, he never mentioned the name of appellant Federico Fernandez alias "Putol" as one of the
three other persons who entered the factory nor did he point at and Identify Fernandez in open court as one
of the perpetrators of the crime charged.
Let us now examine and analyze the documentary evidence Exhibits "D" and "M", Exhibit "D" is the
extrajudicial statement of the accused now deceased Garillo. The pertinent portions of the statement are
quoted hereunder:
xxx xxx xxx
T Kung gayon isalaysay mo sa iyong sariling pananalita kung papaano naganap
ang sinasabi mong pagkaka-hold-up at pagkakapatay sa intsik.
S Ang natatandaan ko, nuong pista ng patay, mga alas 9:00 ng gabi, pumunta
sina Gaudin ang pangalan na tunay niya, Gaudencio Garillo, Berto, tunay na
pangalan, Roberto Quinto, saka si Emot pangalan, Guillermo, hindi ko alam ang
apilyido niya, sa kinaroruonan, ko sa may tambakan sa likuran ng terminal ng LTB
sa Pasay; Inaya nila ako na pumunta kami sa pabrika ng Ice Drop sa Taft Ave.
Pasay; Sumama naman ako sa kanila; Nagdaan muna kami sa bahay nila Putol
(Federico Fernandez) diyan sa malapit sa Zamora St., dito rin sa Pasay; Inabutan
namin siya duon;
T Bago ka sumama sa tatlong kataong sinasabi mo, sina Ber to, Gauden at Emot
ano naman ang sabi nila sa iyo na inyong pupuntahan nuon?
S Mayroon daw intsik na hohold-apin namin
T Sa kabila ng pagkaka-alam mo na gayon nga anginyong gagawin, sumama ka pa
rin sa kanila, ganoon ba?
S Sumama na rin ako sa kanila.
T Bago kayo nakarating sa inyong pinuntahan na pabrika ng ice drop sa Taft Ave.,
ano naman ang inyong pinag-usapan sa dean?

S Basta sumama raw ako, mayroon hohold-apin, sila ang bahala.

T Ng kayo'y dumating sa bahay nitong si Putol na sinasabi mo, ano pa ang
sumunod na pangyayari.
S Napag-usapan namin duon kung ano ang gagawin ng bawat isa sa namin na
pang-hohold-up; Napag-usapan namin duon, si Tangkad ang nakaka-alam lahat
ng gagawin; Pinuntahan na namin iyong pabrika ng ice drop; Si Tangkad nuon,
nasa loob na ng ice drop factory; Itong si Gauden, pumasok sa butas duon sa may
likod ng bahay; Tapos, sumunod na ako sa kaniya: Nandoon na kami sa loob ng
pabrika; Inabutan na naman si Tangkad sa loob; Ng nandoon na kami nina
Gauden, Tangkad, sumunod itong si Berto sa loob; Ngayon, apat na kami sa loob;
Naiwanan si Emot saka si Putol sa labas ng pabrika; Nakita namin sa ibaba ang
isang tao, nakagapos na iyon;
T Nalalaman mo ba naman kung sino ang may gawa nito?
S Nalaman ko na lang ng nasa loob na kami na siTangkad ang naggapos niyon.
xxx xxx xxx
T Bago kayo magtungo sa pinang-hold-apan ninyo na ayon sa iyo, sino-sino
naman ang nalalaman mong may dala ng mga patalim nuon?
S Si Gauden, may dalawang dala, isang balisong, isang paltik, kasi isang putok
lang ang baril eh; Si Tangkad, balisong din ang hawak, nakita ko iyon sa loob eh;
Si Berto may dala rin balisong din iyon; Ako, may dala rin balisong, bente nueve;
Si Emot hindi ko alam kung may data; Si Putol, wala, basta duon lang siya sa
labas:
xxx xxx xxx
(65-67, original record)
The foregoing demonstrates that (1) Fernandez did not enter the ice drop factory but remained outside during
the robbery, and (2) Fernandez was not at all armed on that occasion.
Exhibit "M" is the extrajudicial statement of appellant Fernandez wherein the latter narrated about the plan to
rob the chinaman in the ice drop factory and named the five persons hatching the plan; that he was asked to
go with the group to stand guard outside the factory; that they all went to the ice drop factory as named and
he stood outside as instructed; that while his companions were breaking down the wan he left the place and
went home, and some time later he heard a shot. Quoted hereunder are the pertinent portions of Exhibit "M"
xxx xxx xxx
T Ano ang kaugnayan at nalaman mo tungkol sa sinasabi mong hold-up sa intsik?
S Ganito po iyan. Ako po ay pinuntahan nila sa bahay, dahil sa alam nila na palagi
akong istambay sa ice drapan malapit po ang bahay ko sa ice drapan Sinabi nila

sa akin na huhold-apin ang intsik na katiwala sa pabrika ng ice drop. Halagang

limang libo (P5,000.00) raw po ang nakuha. Ang sabi nila kung ayaw ko man
sumama ay basta huag na lang akong maingay at sila ang bahala. Bibigyan na
lang nila ako. Ang sagot ko po sa kanila ay kayo ang bahala. Umalis na sila.
Pagkagabihan bumalik po sila sa akin sa bahay, mga pagitan nga po ng alas 11 at
12 ng gabi, Nobiembre 1, 1968. Papasukin at huhold-apin na nga po ang intsik sa
loob ng pabrika. isinama po ako para bantay sa labas at sila ang papasok.
T Bago ka magpatuloy sa iyong salaysay, sinu-sinong sila ang nais mong tukuyin
na siyang nagdaan sa iyo sa bahay at pinagusapan ang hold-up sa intsik sa loob
ng pabrika ng ice drop?
S Si Gaudencio, si Berto, ito po si Celing (Celestino Garillo y Orgel, 18, s, porter sa
Divisoria Market, add - 551 E. De los Santos Ave., PC), si Imot at saka si Tangkad,
(declarant pointing to Alejandro Buco y Valdez, @ "CIMARON", 32, m. lab.,
address, Bakawan St., Pasong Tamo, Makati Rizal). Lima (5) po silang lahat at
bilang pang anim (6) ako.
T Dito sa lima (5) na nagpunta sa iyo sa bahay at nagsabi sa iyo na huhold-apin
ang intsik sa loob ng pabrika ng ice drop at ikaw ay pinagsasama pa para bantay,
ilan ang iyong talagang kilala?
S Sila pong lahat ay kilala ko, dahil sa madalas ho silang magpunta sa pabrika
hanggang sa kami po ay magkakilakilala.
T Ito ba rin lima (5) na iyong binanggit sa una ang siyang sinasabi mong bumalik
sa iyo sa bahay ng gabi rin ng Nobiembre 1, 1968, pistang mga patay para
isagawa ang hold-up na binalak o pinag-usapan ng tanghali ng araw ng pista ng
patay Nobiembre 1, 1968?
S Sila rin pong lahat.
T Ipagpatuloy mo ang iyong salaysay, tumigil ka sa ikaw ay isinama para bantay
sa labas at sila ang papasok.
S Opo. Ng sinisira po nila ang dingding ng pabrika ng ice drop, ang ginawa ko po
umuwi ako sa bahay namin. Hindi nagtagal nadinig ko pumutok. Ngayon
pagkaraan po ng putok na iyon ay nakita kong nagtakbuhan sila. Sa tabi po ng
bahay sila nagdaan. Umakyat sila sa pader dahil sarado na po ang pinto
papuntang Zamora. Hindi ko na po nalaman kung saan sila mga nagpunta.
T Iyo bang nalaman kung ano ang nangyari sa binalak o pinagusapan ninyong
holdup sa intsik sa loob ng pabrikang ice drop?
S Ang nalalaman ko po ay pinatay nila ang intsik dahil sa huli si Celing (Celestino
Garillo) na tumakbo at sinabi sa akin na huag akong maingay at napatay namin
ang intsik.
xxx xxx xxx

(pp. 77-78, original record)

Nowhere in the foregoing narration of Federico Fernandez did he ever admit that he was armed on that
occasion, or that he entered the factory with the group, as stated in the trial court's decision.
On what then can the conviction of appellant Fernandez stand? There is proof of the corpus delicti that is, the
robbing and killing of the chinamanyes, that is true; but what evidence links Fernandez to the crime
committed? I agree with appellant's de oficio counsel, Atty. Teodoro R. Dominguez, that there is none under
the law.
As there is nothing in the testimony given in court by the witness Henry Barillo which directly or indirectly
connects Federico Fernandez to the robbery and killing of the ice drop factory owner, all that We have are the
extrajudicial statements Exhibits "D" and "M", and We may even include Exhibit "L" which is the statement of
the other accused Alejandro Buco.
Defense counsel correctly argues in his brief that Exhibits "D" and "L" are "incompetent and inadmissible
evidence against his client, Federico Fernandez" (p. 17 of brief) invoking the maxim res inter alias acta alteri
nocere non debet embodied in section 25, Rule 130 of the Rules of Court which provides:
The rights of a party cannot be Prejudiced by an act, declaration, or omission of another, and
proceedings against one cannot affect another, except as hereinafter provided.
It is a settled rule. hat an extrajudicial confession made by a defendant is admissible against him but not
against his codefendant as to whom said confession is hearsay evidence for he had no opportunity to examine
the former.3
And on the premise that appellant Fernandez is alleged to be a co-conspirator, We have the rule that the act
or declaration of a conspirator relating to the conspiracy or its existence may be given in evidence against the
co-conspirator after the conspiracy is shown by evidence other than such act or declaration. 4
In order that Exhibits "D" and "L" may be admitted as evidence against appellant Fernandez as a coconspirator it is necessary that there be proof of the conspiracy independent of said extrajudicial statements;
here there is no such independent proof and in its absence, no conviction can stand simply on the basis of said
statements. 5
Another point not to be overlooked is that the accused Garillo while testifying in court in his
defense denied that he implicated Federico Fernandez in his statement, Exhibit "D". 6
Verily, it is well to repeat here what the Court pronounced in People vs. Custodio that "considering the farreaching consequences of criminal conspiracy, the same degree of proof required for establishing the crime is
required to support a finding of its presence, that is, it must be shown to exist as clearly and convincingly as
the commission of the offense itself." 7
Finally, there is the supposed "confession", Exhibit "M" wherein according to the trial Judge, the appellant
Fernandez acknowledged having committed the crime."
In my view Exhibit "M" is not to be given the weight and evidentiary value of an extrajudicial confession of
guilt. As already indicated earlier, Fernandez narrated in Exhibit "M" the plan of five persons to rob the owner
of the ice drop factory and that he was asked to accompany those persons and to act as guard outside the

factory and on the particular evening they all went to the place. But that was all insofar as he was concerned,
for according to appellant while he was standing outside the factory and the five persons were breaking open
the wall he left the place and went home. This is an act of voluntary desistance.
The distinctive feature of a confession is that it must be an acknowledgment of guilt without
any exculpating statements or explanation. However, if the prosecution undertakes to prove
statements of the accused as his confession, any exculpating statements which he made at the
time are admissible in his favor. (Bram vs. United States, 168 U.S. 532, 42 L.ed. 568 16 S. Ct.
183, cited in Martin, Rules of Court in the Philippines, Vol. 5, 1974 Ed., p. 251)
There is in every design or plan to commit a crime a place of repentance or locus penitentiae
whereby the one planning to commit it may abandon the Idea and thus avoid criminal liability.
This is true where one of the persons who has entered into a conspiracy, necessarily involving
an overt act, abandons the plan before the act if done. (15 Am Jur 333, p. 22 citing U.S. v.
Britton, 108 U.S. 199, 27 L. ed. 698, 2 S. Ct. 531; State v. Webb, 216 Mo 378, 115 S.W. 998, 20
L.R.A. (N.S.) 1142, 129 Am. St. Rep. 518, 16 Ann. Cas 518)
Article 6, paragraph 3 of the Revised Penal Code exempts from liability those who spontaneously desist from
the commission of a felony.
The voluntary desistance of appellant herein from the criminal act of assisting his co-accused before the crime
was committed warrant-his acquittal.
One last point. The main Opinion of the Court heavily relies on the statement of appellant Fernandez in Exhibit
"M" that he went to Barrio Bicutan, Taguig, Rizal very early in the morning of the next day and thereafter to
Angeles, Pampanga where he stayed in a house together with the other accused, Berto and Gauden, as
indicative of his guilt.
It is the better rule however that evidence of flight is not substantive evidence of guilt; 8 that it is merely a
circumstance tending to establish guilt, not in itself conclusive, nor can it create a legal presumption of guilt. 9
In the absence of separate admissible evidence tending to establish the guilt of appellant Federico Fernandez,
his departure for Angeles, Pampanga is at the most a circumstantial evidence but insufficient in itself to
warrant his conviction.
ACCORDINGLY, I vote for the acquittal of Federico Fernandez.
Footnotes
1 pp. 64, 66-70, rollo
2 Exh. A, p. 53, Original Record.
3 p. 153, rollo.
4 Exh. D, p. 65, Original Record.
5 Exh. L, p. 74, Original Record.

6 Exh. M, p. 77, Orig. Rec., which reads:

s Ganito po iyan. Ako po ay pinuntahan nila sa bahay, dahil sa alam nila na palagi akong
istambay sa ice drapan malapit po ang bahay ko sa ice qqqdrapan Sinabi nila sa akin na huholdapin ang intsik na katiwala sa pabrika ng ice drop. Halagang limang libo (P5,000.00) raw to ang
makukuha. Ang sabi nila kung ayaw ko man sumama ay basta huag na lang akong maingay at
sila ang bahala. Bibigyan na lang nila ako. Ang sagot ko po sa kanila ay kayo ang bahala. Umalis
na sila. Pagkagabihan bumalik po sila sa akin sa bahay mga pagitan nga po ng alas 11 at 12 ng
gabi, Nobiembre 1, 1968. Papasukin at huhold-apin nga po ang intsik sa loob ng pabrika.
Isinama po ako para bantay sa labas at sila ang papasok.
xxx xxx xxx
Ipagpatuloy mo ang iyong salaysay, tumigil ka sa ikaw ay
isinama para bantay sa labas at sila ang papasok.
s Opo Ng sinisira po nila ang dingding ng pabrika ng ice drop ang ginawa ko po umuwi ako sa
bahay namin Hindi po nagtagal nadinig ko pumutok. Ngayon pagkaraan po ng putok na iyon ay
nakita kong nagtakbuhan sila. Sa tabi po ng bahay sila nagdaan Umakyat sila sa pader dahil
sarado na po ang pinto papuntang Zamora. Hindi ko na po nalaman kung saan sila mga nag
punta."
7 The Living Bible, p. 733, Proverbs 28:1
8 People vs. Carunungan, 109 Phil. 534.
9 People vs. Valeriano, 90 Phil. 15.
10 Aquino, The Revised Penal Code, 1976 ed., p. 350, 354.
11 Id., p. 372, citing People vs. Vente, L-8344, Feb. 28, 1957, 100 Phil. 1099.
12 See Exhibit D.
13 See Exhibit M, P. 3.
MUOZ-PALMA, J., Footnotes:
1 page 23, CFI decision, p. 174, original record.
2 See pp. 4-10, 18-28, TSN of February 14, 1969.
3 People vs. Amajul. et al., per Reyes, J.B.L., J. 1 SCRA 682, February 28, 1961, citing Moran's
Comments on the Rules of Court, 1957 Ed. Vol. III, p. 109. See also U.S. vs. Castillo, et al., 2 Phil.
17; U.S. vs. Paete, et al., 6 Phil. 105; People vs. Tabuche, et al., 46 Phil. 28; People vs. Durante,
et al., 47 Phil. 654; People vs. Orenciada and Cenita, 47 Phil. 970; and People vs. Bande et al., 50
Phil. 37; Moran, 1970 Ed. Vol. 5, p. 276.

4 Section 27, Rule 130 Rules of Court.

5 People vs. Capadocia, et al., per Makalintal J., August 29, 1966, 17 SCRA 981; Moran, supra, p.
254; Martin, Rules of Court, 1974 Ed., Vol, 5, p. 237.
6 TSN. February 17, 1969, p. 22.
7 Per Antonio, J., October 30, 1972, 47 SCRA 289, 302, reiterated in People vs. Madera, et al.,
May 31, 1974, 57 SCRA 349 and People vs. Tumalip, et al., October 28, 1974, 60 SCRA 303.
isdone."(15 Am Jur $333, p. 22, citing U.S. v. Britton, 108 U.S. 199, 27 L.ed. 698, 2 S. Ct. 531;
State v. Webb 216 Mo 378, 115 S. W. 998, 20 L.R.A. (N.S.) 1142, 129 Am. St. Rep. 518, 16 Ann.
Cas 518)
8 22-A C.J.S. sec. 625, p. 460.
9 Ibid., citing Ga.-Seay v. State, 11 S.E. 2d 54, 63 Ga.

EN BANC

[G.R. Nos. 140407-08. January 15, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PO3 RENATO F. VILLAMOR and JESSIE Joy MAGHILOM
(At Large), accused.
PO3 RENATO F. VILLAMOR, accused-appellant.

[G.R. Nos. 141908-09. January 15, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PO3 RENATO F. VILLAMOR and JESSIE Joy MAGHILOM
(At Large), accused.
PO3 RENATO F. VILLAMOR, accused-appellant.
DECISION
YNARES-SANTIAGO, J.:
At around dusk of November 24, 1995, brothers Jerry Velez and Jelord Velez were on their way home
to Barangay Mitakas, Baliangao, Misamis Occidental, on board a motorcycle after having dinner at a friends
house at Barangay Landing, Baliangao, Misamis Occidental. Jerry was driving. As they neared the junction
of Barangays Lusot andMitakas, they heard a speeding motorcycle fast approaching from behind. The
brothers ignored the other motorcycle, which caught up with them. As they were about to cross the bridge
leading to their home, gunshots rang out from behind them. They abruptly turned the motorcycle around
towards the direction of the gunfire. The light of their motorcycles headlamp fell on their attackers aboard
the second motorcycle. The assailants fired at them a second time and fled towards the direction
of Calamba, Misamis Occidental. Jerry sustained gunshot wounds on the abdomen and left elbow, but
survived. He got a good look at their assailants. Jelord, however, was not as fortunate, as he died on the spot
during the first gunburst.
For the deadly assault on the Velez brothers, PO3 Renato F. Villamor and Jessie Joy Maghilom were
indicted for Murder in Criminal Case No. 1312-36-14 in an Information which reads:
That on or about November 24, 1995, in Baliangao, Misamis Occidental, and within the jurisdiction of this
Honorable Court, accused PO3 Renato F. Villamor, public officer, being a member of the Philippine National
Police, conspiring and confederating with accused Jessie Joy Maghilom, likewise a public officer, being
a Barangay Councilman, with treachery and intent to kill, did then and there, wilfully, unlawfully and
feloniously shoot Jelord Velez, inflicting upon him mortal wounds that caused his death.
CONTRARY TO LAW.[1]
A charge of Frustrated Murder was likewise filed, docketed as Criminal Case No. 631-14-68-36-27, under
an Information which reads:

That on or about November 24, 1995, at about 6:30 in the evening in Baliangao, Misamis Occidental, and
within the jurisdiction of this Honorable Court, accused P03 Renato F. Villamor, public officer, being a member
of the Philippine National Police, conspiring and confederating with Jessie Joy Maghilom, likewise a public
officer, being a Barangay councilman, with treachery and intent to kill, did then and there, wilfully, unlawfully,
and feloniously shoot Jerry Velez who as a result thereof, suffered gunshot wounds on the left upper quadrant
abdomen and stomach which ordinarily would cause the death of said Jerry Velez, thus performing all the acts
of execution which should have produced the crime of murder as a consequence but which, nevertheless, did
not produce it by reason of causes independent of their (accused) will, that is, by the timely and able medical
attendance rendered to said Jerry Velez which prevented his death.
CONTRARY TO LAW.[2]
By agreement of the parties, the two cases were tried jointly. [3] At the pre-trial conference, the following
facts were stipulated:
1. The identity of accused PO3 Renato F. Villamor to be the very same person who is one of the
accused in the two above-entitled criminal cases;
2. The defense admitted that in Criminal Case No. 1312-36-14, the victim is Jelord Bongcaron Velez
who was killed in the evening of November 24, 1995 in Baliangao, MisamisOccidental;
3. The defense admitted in Criminal Case No. 631-14-68-36-27 that Jerry Velez was shot and
wounded in the evening of November 24, 1995 at Baliangao, Misamis Occidental;
4. In Criminal Case No. 1312-36-14, the defense admitted the authenticity and genuineness of the
Certificate of Death of Jelord Bongcaron Velez, issued by Public Health Officer Nelson R. Abrinez;
5. In Criminal Case No. 631-14-68-36-27, the defense admitted the authenticity and genuineness of
the Medico Legal Certificate dated March 22, 1996, issued in favor of Jerry Velez by Medical
Officer III Olyzar H. Recamadas, as attested to by Chief of Clinics designate Livera A. Amil, M.D.[4]
Upon arraignment, only accused PO3 Renato F. Villamor pleaded not guilty to the crimes charged.[5] His
co-accused, Jessie Joy Maghilom, remained at large, hence, trial proceeded only with respect to
accused Villamor.
After trial, the Regional Trial Court of Calamba, Misamis Occidental, Branch 36, rendered judgment as
follows:
WHEREFORE, premises considered, finding accused PO3 Renato F. Villamor guilty beyond reasonable doubt of
having committed the crime of MURDER in Criminal Case No. 1312-36-14 as defined and penalized in Art. 248
of the Revised Penal Code with the presence of one aggravating circumstance of taking advantage of his public
position as a policeman, accused PO3 Renato F. Villamor is hereby sentenced to the penalty of
DEATH. PO3 Renato F. Villamor is hereby further ordered to pay the legal heirs of the late Jelord Velez the
amount of FIFTY THOUSAND PESOS (P50,000.00) and another amount of THIRTY-NINE THOUSAND SIX
HUNDRED FIFTY-TWO AND FIFTY-TWO CENTAVOS (P39,652.52) representing the expenses for the
construction of the tomb, coffin and the expenses for the vigil and prayers of the late Jelord Velez.
In the FRUSTRATED MURDER docketed as Criminal Case No. 631-14-68-36-27, accused
PO3 Renato F. Villamor is likewise found guilty beyond reasonable doubt of having committed the crime of
FRUSTRATED MURDER as defined in Art. 248 of the Revised Penal Code in relation to Art. 6 and Art. 50 of the
same Revised Penal Code and there being an aggravating circumstance of taking advantage of his public
position as a policeman and applying the Indeterminate Sentence Law, accused PO3 Renato F. Villamor is

hereby sentenced to a penalty of imprisonment of NINE (9) years of prisionmayor as the minimum to
EIGHTEEN (18) YEARS of reclusion temporal as the maximum. PO3 Renato F. Villamor is further ordered to pay
to Jerry Velez and his family the amount of FORTY-SEVEN THOUSAND, NINE HUNDRED FIFTY-FIVE PESOS
(P47,955.00) representing the medical expenses to include already the medical operation and hospitalization
incurred by Jerry Velez and his family.
SO ORDERED.[6]
On automatic review before this Court, accused-appellant alleges
I. THAT THE HONORABLE LOWER COURT, THE HONORABLE REGIONAL TRIAL COURT, BRANCH 36,
CALAMBA, MISAMIS OCCIDENTAL, GRAVELY ERRED IN ASSAILING THE DEFENSE OF ALIBI SIMPLY
BECAUSE THE DISTANCE OF THE CRIME SCENE TO THE PLACE WHERE ACCUSED PO3 RENATO F.
VILLAMOR WAS, AT THE TIME OF THE INCIDENT WAS (sic) VERY NEAR AND IT WOULD BE POSSIBLE
FOR HIM TO BE AT THE CRIME SCENE.
II. THAT THE HONORABLE LOWER COURT, THE HONORABLE REGIONAL TRIAL COURT, BRANCH 36,
CALAMBA, MISAMIS OCCIDENTAL, GRAVELY ERRED IN GIVING CREDENCE TO THE TESTIMONY OF
JERRY VELEZ WHEN AS AN OFFENDED PARTY AND VICTIM NATURALLY WOULD PROTECT HIS
INTEREST WHEN IN TRUTH AND IN FACT HIS TESTIMONY WAS NEVER CORROBORATED BY OTHER
WITNESSES OF THE PROSECUTION.
III. THAT THE HONORABLE LOWER COURT, THE HONORABLE REGIONAL TRIAL COURT, BRANCH 36,
MISAMIS OCCIDENTAL, GRAVELY ERRED IN NOT HOLDING THAT THERE WAS NO REASON OR
MOTIVE WHATSOEVER WHY SHOULD ACCUSED PO3 RENATO F. VILLAMOR SHOULD (sic) WISH
THE DEATH OF JELORD VELEZ AND JERRY VELEZ.[7]
The prosecution established that when the brothers turned around to face their assailants, Jerry
saw Villamor and Maghilom on board the motorcycle behind them. Maghilom was driving the motorcycle
while Villamor was holding a short gun pointed at them.
Jerry sensed that Jelords grip on his back slackened. Jelord fell off the motorcycle and died on the
spot. As Jerry neared the bridge, Villamor again fired at Jerry, hitting him on the abdomen. The two assailants
drove away. When Jerry arrived at their house, he told his other brother, Jelvis, about the incident. They
rushed Jelord to
the Calamba DistrictHospital,
but
he
was
transferred
to
the Misamis Occidental Provincial Hospital, Oroquieta City. Meanwhile,
Jerry
was
treated
at
the Provincial Hospital and, later, at the Metro CebuHospital.
The autopsy conducted by Dr. Nelson Gabrinez, Public Health Officer of Baliangao, on the cadaver
of Jelord Velez showed several wounds on the chest, mid-clavicular area, abdomen and right diaphragm. The
cause of death was indicated as multiple gunshot wounds.
On the other hand, Dr. Olayzar Recamadas of the Provincial Hospital examined Jerry Velez and found that
he sustained a gunshot wound *on the+ left quadrant abdomen penetrating abdominal cavity with injury to
stomach, mesentery transverse colon, hemoperitoneum.[8] Dr. Recamadas testified that without prompt
medical attendance, Jerry could have died of zero-zero (0-0) blood pressure.[9]
For his defense, accused-appellant Villamor claimed that he was not at the scene of the crime at the time
of its occurrence. He testified that on November 24, 1995, at around5:00 p.m., he was in Barangay Landing as
security escort of Mayor Agapito Yap III, which was among his duties as a member of the Philippine National
Police assigned to the Office of the Mayor of Baliangao.[10] The Mayor and his entourage, which included
accused-appellant, left Baliangao for Barangay Landing at about 9:00 a.m.[11] They arrived there at 10:00
a.m.[12] In Barangay Landing, Mayor Yap visited the Barangay Captain and had lunch.[13] From there, the Mayor

and his entourage proceeded to the cockpit to attend a derby.[14] At around 5:00 p.m., accused-appellant went
home to take his child, who was suffering from diarrhea, to the clinic for treatment. [15] He arrived at the Yap
Clinic but was advised to go to the Calamba District Hospital.[16]
Accused-appellant then radioed for an ambulance to bring his ailing child to the hospital. Since there was
no ambulance available, he borrowed a vehicle from Mayor Yap. On board a jeep driven by Alvin Itum,
accused-appellant left Baliangao at 5:30 p.m. When they passed the bridge at the junction
of Barangays Lusot and Mitakas,
they
noticed
no
untoward
incident. They
arrived
at
[17]
the Calamba District Hospital at 7:00 p.m.
Accused-appellants child was confined at the said hospital for three days. [18] From the time he brought
his child for confinement on the date of the incident, accused-appellant never went back to Baliangao. The
only occasion he left the hospital premises on November 24, 1995 was when stepped out to buy biscuits and
orange drink at the store 80 to 100 meters away.[19]
Accused-appellant testified that he only came to know of the incident when he was informed of it
by Isyong Lomoljo.[20] He claimed having talked with Jerry Velez for several minutes at the hospital at
around 7:30 to 8:00 p.m.[21] Jerry told him he could not identify the assailants because it was dark. [22] Accusedappellant averred that he was implicated in the incident because of political reasons. The Velezes and the
Yaps were political rivals.[23]
Accused-appellant argues that even granting that the place where the crime was committed was near, it
would still be impossible for him to go there and commit the crime because he was attending to his sick son.
We disagree.
Accused-appellants profession of innocence cannot prevail vis--vis his positive identification as the
gunman by eyewitness-victim Jerry Velez, who testified thus:
Q You said you were shot. In fact, Jelord Velez was hit what did you do when you noticed your
brother was hit?
A

I noticed that his grip on my shoulder was loosen[ed].

Q If you have noticed that his grip was loosen[ed], what did you do then?
A

I let the motorcycle turn around.

Q What did you see when the motorcycle turned] around?

A

I saw Joy Maghilom and P03 Renato Villamor.

Q What did you do when you see (sic) them?

A

I was frightened. I was afraid.

Q Do you know who shot your brother when you said you were fired [upon]?
A

Yes, I know him.

Q Whose (sic) that person?

A

P03 Renato Villamor.

Q Is he in court this morning?

A

Yes.

Q Please point again.

INTERPRETER:
Witness pointed to the person and when I asked him, he answered PO3 Renato Villamor.
Q You said that when you noticed that your brothers grip was loosen*ed+ you turned around the
motorcycle and you saw Renato Villamor and Joy Maghilom, were they riding also a motorcycle?
A

Yes.

Q Why were you able to recognize them?

A

Because they were lighted by the light of the motor.

Q Very clear?
A

Yes, very clear.

Q How far where you able to turned (sic) around the motor and when you said they were lighted
by the motor?
A

Two (2) meters.[24]

Despite repeated attempts by the defense counsel to throw him off track during cross-examination, Jerry
remained resolute and unflinching in his account that he and his brother were fired upon by accused. [25]
In stark contrast to the clear and categorical declarations of the victim, accused-appellant merely raised
alibi as his defense. However, such a defense is unavailing given the facts prevailing herein. The Court has
consistently looked upon the defense of alibi with suspicion and received it with caution not only because it is
inherently weak and unreliable but also because it can be easily fabricated. [26] Unless supported by clear and
convincing evidence, the same cannot overcome the positive declarations of the victim who, in a simple and
straightforward manner, convincingly identified the accused-appellant as one of the perpetrators of the crime.
Contrary to accused-appellants contention, he failed to establish that it was physically impossible for him
to be at the scene of the crime at the time it was committed. Since the distance between his alleged
whereabouts and the place of the incident was, by his own admission very near,[27] it was not impossible for
accused-appellant to be at the scene of the crime at the time of its commission. [28] His argument that he was
attending to his son who was in the hospital is simply unavailing.
In the second assigned error, accused-appellant assails the trial courts reliance on the lone and
uncorroborated testimony of eyewitness-victim Jerry Velez.
We remain unconvinced.
It must be stressed in this regard that the testimony of a single witness is sufficient to establish the guilt of
the accused for evidence is weighed not counted.[29] Indeed, the testimony of a single witness, if positive and
credible, is sufficient to convict the appellant even in a murder charge. [30]
In view of the foregoing considerations, accused-appellants argument that he has no motive for
committing the crime must likewise fail. Suffice it to state that ill motive is never an essential element of a
crime. It becomes inconsequential where there are affirmative, nay, categorical declarations towards the
accused-appellants accountability for the felony.[31]Such is the case here.
All told, an overall scrutiny of the records of this case leads us to no other conclusion but that the trial
court did not err in finding accused-appellant and his co-accused guilty of murder. The core issue raised by
accused-appellant centers on the credibility of the witnesses. The doctrinal rule is that findings of fact made
by the trial court, which had the opportunity to directly observe the witnesses and to determine the probative

value of the other testimonies are entitled to great weight and respect because the trial court is in a better
position to assess the same, an opportunity not equally open to an appellate court.[32]
Truth does not always stalk boldly forth naked, but modest withal, in a printed abstract in a court of last
resort. She oft hides in nooks and crannies visible only to the minds eye of the judge who tries the case x x x x.
The brazen face of the liar, the glibness of the schooled witness in reciting a lesson, or the overeagerness of
the swift witness, as well as honest face of the truthful one, are alone seen by him. [33]
The Information indicting accused-appellant for Murder alleged that treachery aggravated by abuse of
public authority attended the killing of the victim.
We agree with the trial court that the killing of Jelord Velez was attended by treachery or alevosia. There
is treachery when the offender commits any of the crimes against persons, employing means, methods or
forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself
arising from the defense which the offended party might make. [34] The qualifying circumstance of treachery
attended the killing inasmuch as the two conditions for the same are present, i.e., (1) that at the time of the
attack, the victim was not in a position to defend himself, and (2) that the offender consciously adopted the
particular means, method or form of attack employed by him. [35] The essence of treachery is the swift, sudden
and unexpected attack by the aggressor on an unsuspecting victim, depriving the latter of any real chance to
defend himself, thereby ensuring its commission without risk to the aggressor, and without the slightest
provocation on the part of the victim.[36]
The treacherous manner in which accused-appellant and Jessie Joy Maghilom perpetrated the crime is
shown not only by the sudden and unexpected attack upon the unsuspecting and apparently unarmed victims
but also by the deliberate manner in which the assault was perpetrated. In this case, a totally
unsuspecting Jelord Velez held onto his brother Jerry on board their motorcycle on their way home blissfully
unaware of the onrushing peril behind them. As in the recent case of People v. Padilla,[37] treachery is evident
when the accused-appellant suddenly positioned himself at the back of the unsuspecting victim, pointed his
gun at him and, without any warning, promptly delivered the fatal shots. In short, the victim was unaware of
the attempt on his life and the danger that lurked behind him. There was no way the victim could have
defended himself, taken flight or avoided the assault. The attendance of treachery qualifies the killing to
Murder.
The Court, however, agrees with the Solicitor General that the trial court improperly applied the
aggravating circumstance of taking advantage of public position as provided for in Article 14, paragraph 1 of
the Revised Penal Code. To appreciate this aggravating circumstance, the public officer must use the
influence, prestige or ascendancy which his office gives him as a means by which he realizes his purpose. The
essence of the matter is presented in the inquiry Did the accused abuse his office to commit the crime?[38]
In this case, there was no showing that accused-appellant took advantage of his being a policeman to
shoot Jelord Velez or that he used his influence, prestige or ascendancy in killing the victim. Accusedappellant could have shot Velez even without being a policeman. In other words, if the accused could have
perpetrated the crime even without occupying his position, there is no abuse of public position. [39] Only
recently, in People v. Herrera,[40] the Court emphatically said that the mere fact that accused-appellant is a
policeman and used his government issued .38 caliber revolver to kill is not sufficient to establish that he
misused his public position in the commission of the crime. [41]
There being no modifying circumstances to be appreciated, the proper imposable penalty for the killing
of Jelord Velez is reclusion perpetua, pursuant to Article 63, paragraph 2 in relation to Article 248 of the
Revised Penal Code, as amended by R.A. No. 7659.[42]

So, too, must the penalty imposed by the trial court for Frustrated Murder be modified considering that it
necessarily arose from the same incident which caused the death of one of the victims. While we agree with
the lower court that the penalty for a frustrated felony is one degree lower than that of a consummated
crime, pursuant to Article 50 in relation to Article 6 of the Revised Penal Code, the proper penalty in the
absence of any modifying circumstances is likewise to be imposed in its medium period in accordance with
Article 64, paragraph 1 of the Code.
In this case, the proper imposable penalty for Frustrated Murder is Reclusion Temporal in its medium
period, which has a range of Fourteen (14) Years, Eight (8) Months and One (1) Day to Seventeen Years and
Four (4) Months. The penalty one degree lower than Reclusion Temporal is Prision Mayor, from which the
minimum term of the indeterminate penalty imposable on accused-appellant shall be taken.
In line with prevailing jurisprudence,[43] the Court affirms the award of P50,000.00 as civil indemnity for
the death of the victim, even in the absence of proof other than the death of the victim. [44] Moral damages
should likewise be awarded by the trial court to the victims heirs in the case for Murder, pursuant to
controlling jurisprudence on the matter.[45] Moral damages are pegged at P50,000.00,[46] taking into
consideration the pain and anguish of the victims family brought about by his death.[47] The award for the
funeral and burial expenses incurred by heirs of Jelord Velez as well as the medical expenses for the treatment
of Jerry Velez, being amply supported by documentary evidence are likewise sustained.
WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court
of Calamba, Misamis Occidental in Criminal Cases Nos. 1312-36-14 and 631-14-68-36-37, finding accusedappellant guilty beyond reasonable doubt of Murder and Frustrated Murder, respectively, is AFFIRMED with
MODIFICATION. As modified, accused-appellant PO3Renato F. Villamor is sentenced to suffer the penalty
of Reclusion Perpetua for Murder in Criminal Case No. 1312-36-14; and to suffer an indeterminate penalty of
Eight (8) Years and One (1) Day of Prision Mayor, as minimum, to Fourteen (14) Years, Eight (8) Months and
One (1) Day of Reclusion Temporal, as maximum, for Frustrated Murder in Criminal Case No. 631-14-68-36.
Accused-appellant is ORDERED to pay the heirs of the victim Jelord Velez the sum of P50,000.00 by way of
moral damages, in addition to the civil indemnity of P50,000.00 and funeral expenses of P39,652.52 awarded
by the trial court. The award of medical expenses to Jerry Velez in the amount of P47,955.00 is AFFIRMED.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena,
De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.

[1]

Record, Vol. 1 (G.R. Nos. 140407-08), p. 1.

[2]

Record, Vol. 2 (G.R. Nos. 141908-09), p. 1.

[3]

Record, Vol. 1, p. 85; Vol. 2, p. 106.

[4]

Ibid., pp. 106-107.

[5]

Id., p. 87.

[6]

Rollo, G.R. Nos. 140407-08, pp. 51-52; penned by Judge Paulino L. Conol, Jr.

[7]

Rollo, G.R. Nos. 141908-09, p. 59.

[8]

Exhibit A, Criminal Case No. 631-14-68-36-27.

[9]

TSN, 19 January 1999, p. 7.

[10]

TSN, 8 March 1999, pp. 3-4.

[11]

Ibid., p. 17.

[12]

Id., p. 18.

[13]

Id., pp. 4, 17.

[14]

Id., pp. 18, 22.

[15]

Id., pp. 4-5, 18.

[16]

Id., pp. 4-5.

[17]

Id., pp. 6-9.

[18]

Id., p. 10.

[19]

Id., p. 7.

[20]

Id., p. 11.

[21]

Id., pp. 11, 30.

[22]

Id., p. 10.

[23]

Id., pp. 14-15.

[24]

TSN, 3 February 1999, pp. 5-7; emphasis supplied.

[25]

Ibid., pp. 15-25.

[26]

People v. Hofilea, 334 SCRA 214, 227 [2000].

[27]

Appellants Brief, p. 5.

[28]

People v. Castillo, 273 SCRA 22 [1997].

[29]

People v. Buendia, 314 SCRA 655 [1999]; People v. Quitoriano, 266 SCRA 373 [1997].

[30]

People v. Barellano, 319 SCRA 567 [1999]; People v. Ocumen, 319 SCRA 539 [1999]; People v. Batidor, 303
SCRA 335 [1999]; Boneng v. People, 304 SCRA 252 [1999]; People v. Lotoc, 307 SCRA 471 [1999];People
v. Garcia, 313 SCRA 279 [1999]; People v. Villablanca, 316 SCRA 13 [1999].

[31]

People v. Optana, G.R. No. 133922, 12 February 2001.

[32]

People v. Visaya, et al., G.R. No. 136967, 26 February 2001.

[33]

People v. Del Rosario, 344 SCRA 382, 392 [2000].

[34]

Revised Penal Code, Article 14, par. 16.

[35]

People v. Galam, 325 SCRA 489 [2000].

[36]

People v. Garcia, G.R. No. 129216, 20 April 2001; People v. Celeste, G.R. No. 130281, 15 December 2000.

[37]

G.R. Nos. 138472-73, 9 August 2001.

[38]

People v. Magayac, 330 SCRA 767, 777 [2000].

[39]

People v. Joyno, 304 SCRA 655, 670-671 [1999].

[40]

G.R. Nos. 140557-58, 5 December 2001.

[41]

People v. Villa, Jr., 331 SCRA 142, 154 [2000].

[42]

People v. Lao-as, G.R. No. 126396, 29 June 2001.

[43]

People v. Amion, G.R. No. 140511, 1 March 2001; People v. Court of Appeals, et al., G.R. Nos. 103613 &
105830, 23 February 2001, citing People v. Pedroso, 336 SCRA 163 [2000]; People v. Go-od, 331 SCRA
612 [2000]; People v. Flores, 328 SCRA 461 [2000].

[44]

People v. Concepcion, et al., G.R. No. 131477, 20 April 2001, People v. Mindanao, 335 SCRA 200
[2000]; People v. Quijon, 325 SCRA 453 [2000].

[45]

People v. Caldona, G.R. No. 126019, 1 March 2001; People v. Queigan, G.R. Nos. 133586-603, 19 February
2001; People v. Ortiz, G.R. No. 133814, 17 July 2001.

[46]

People v. Pardua, et al., G.R. No. 110813, 28 June 2001; People v. Ereneo, 326 SCRA 157 [2000].

[47]

People v. Alba, et al., G.R. Nos. 130627 & 139477-78, 31 May 2001; People v. Langit, 337 SCRA 323 [2000].

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-6344

March 21, 1911

THE UNITED STATES, plaintiff-appellee,

vs.
MANUEL RODRIGUEZ, ET AL., defendants-appellants.
W.L. Wright for appellants.
Acting Attorney Harvey for appellee.
MORELAND, J.:
This is an appeal by Manuel Rodriguez, Cipriano Galvez, Raymundo Revilla, Dorotea Rojas, Feliciano Pantanilla,
Roman Villaister, Pedro Villanueva, Nicomedes Abella Sabino Raymundo, Geronimo Guijon, Martin Sauler,
Eusebio Bustamante, Victoriano Calipusan and Valentin Multialto from a judgment o the Court of First
Instance of the Moro Province, Hon Herbert D. Gale presiding, convicting them of the crime of murder and
sentencing them each to death.
From the proofs presented by the Government, it appears that the appellants, with nine other, being
members of the second company of the Constabulary stationed at Davao, mutinied on the 6th day of June,
1909, attempting, during the course of such mutiny, to kill one of their superior officers, Lieutenant Goicuria;
that immediately after such revolt the mutinees, having taken arms and ammunition from the depositary, left
the vicinity of Davao and marched toward the mountains of Lipada; that on the 8th day of June, 1909, said
mutineers returned to Davao for the purpose of attacking the town; that the inhabitants thereof, having
received previous notice of the proposed attack, prepared themselves to meet it; that J. L. Burchfield, P. C.
Libby, A. M. Templeton, and Roy Libby, armed with rifles, having been detailed by those commanding the
defense of the town, on the afternoon of the day referred to, advanced to the cemetery within the limits of
the town, forming an outpost for the purpose of awaiting the coming of the mutineers; that about 4.15 o'clock
they sighted the mutineers; that immediately thereafter they heard a shot, followed by others, which came
from near the cemetery, where the mutineers had halted and dismounted; that after a few shots had been
exchanged Roy Libby was struck with a ball and killed; that the outpost retreated to the convent and took
refuge therein; that the mutineers advanced against the town, attacking it at various points and especially the
convent, where a portion of the residents of the town had gathered, including the women and children, or the
purpose of defending themselves; that no other person except Roy Libby was killed, although several others
were more or less severely wounded.
What with the confession of some of the accused, the testimony of others, and the evidence presented by the
witnesses for the prosecution, there remains so little a question of fact in this case that it is substantially
unworthy of discussion. That the appellants with others revolted against their superior officers on the 6th of
June; that they returned to Davao on the 8th and attacked it viciously and persistently, killing one of its
defenders and wounding several others; and that they all took a direct and active part therein, is not only
absolutely undoubted from the testimony of the prosecution but is substantially admitted by all of the
defendants in the case. Some of the appellants sought to defend themselves upon the ground that they had
been forced, by threats and intimidation, to take part in the mutiny and the attack upon Davao by other

members o the mutineer band. The evidence in no way justifies this defense and it is utterly impossible under
any construction of the evidence to sustain it. All of the appellants, however, agree in presenting the defense
that they entered the town of Davao on the 8th of June, not for the purpose of attacking it for the purpose of
surrendering to their superior officers and the governor of the district. Not only it is impossible from the
testimony of the prosecution to arrive at such a conclusion o fact, but it is almost as nearly impossible to arrive
at such a conclusion from the evidence presented by the appellants themselves. No defense upon the facts
worthy of the name has been presented.
As to whether or not there was present premeditacion conocida, qualifying the crime as murder, a simple
reading of the proofs presented by the Government is sufficient to demonstrate that beyond question or
doubt. It appears that all of the appellants, on or about the 8th day of June, at about 11 o'clock in the
forenoon, went to the house of Cenon Rasay, some distance from Davao, in order to obtain information as to
whether or not reinforcements had been landed at Davao. On being informed that, to the knowledge of the
persons questioned, none had been landed, they asked the elder Rasay to permit them to leave at his house
the three woman that accompanied them, as they were going to march on Davao and attack it. The appellant
Rodriguez also requested that, in case he should be killed in the attack, he, Rasay, should treat one of the
women, who was the wife of Rodriguez, as his servant. Having left the women in the house of Cenon, they
took up the march to Davao. On arriving near the river Bagoo, they were overtaken by Ignacio Rasay, a
kinsman of Cenon Rasay, and suspecting that he was going to Davao for the purpose of warning the town
against the meditated attack, they halted him and told him that, if he should give any warning of their
approach, they would cause damage to his family. He having assured them that such was not his purpose, they
permitted him to proceed. The appellants continued on their way and arriving at the cemetery near Davao
heard a shot, which they claim came from those who had seen sent out to watch for their approach. On seeing
this advance guard, the accused dismounted from their horses and began to fire forming in a skirmish line and
advancing steadily. Overwhelmed by the number of the attacking party, the outpost retreated toward the
village, pursued by the appellant. There followed an attack upon the town, more or less general, of the kind
and character generally to be expected from such a body of men. The attacks was, in a large measure,
unsuccessful and the mutineers withdrew when they saw the futility of further fighting.
The learned trial court found premeditacion conocida as the element qualifying the crime as murder. The
learned counsel for the appellants excepts to this finding and asserts that, inasmuch as the appellants did not
know even of the existence of the deceased, Roy Libby, at the time of his death, much less that he was at the
time in the village they attacked and one of the outpost of four, his death could not possibly have been
premeditated. He argues that, in order that the killing be premeditated, the accused must have resolved to kill
the premeditated person. We do not stop to discuss this question at length for the reason that it has already
been determined by this court adversely to the learned counsel's contention. In the case of the United
States vs. The Moro Manalinde, "the accused made up his mind to kill two undetermined persons, the first
whom he should meet on the way, in compliance with the inducement of a third person." In its decision the
court said:
As to the other circumstance it is also unquestionable that the accused upon accepting the order and
undertaking the journey in order to comply therewith, deliberately considered and carefully and
thoughtfully meditated over the nature and the consequences of the acts which, under orders received
from the said Datto, he was about to carry out, and to that end provided himself with a weapon,
concealing it by wrapping it up, and started on a journey of a day and a night for the sole purpose of
taking the life of two unfortunate persons whom he did not know, and with whom he had never had
any trouble; nor did there exist any reason which, to a certain extent, might warrant his perverse deed.
The fact that the arrangement between the instigator and the tool considered the killing of unknown
persons, the first encountered, does not bar the consideration of the circumstance of premeditation.

The nature of the circumstances which characterize the crime, the perversity of the culprit, and the
material and moral injury are the same, and the fact that the victim was not predetermined does not
affect nor alter the nature of the crime. The person having been deprived of his life by deeds executed
with deliberate intent, the crime is considered a premeditated one, as the firm and persistent intention
of the accused from the moment, before said death, when he received the order until the crime was
committed upon the offer of money, reward or promise, premeditation is sometimes present, the
latter not being inherent in the former, and there existing no incompatibility between the two,
premeditation can not necessarily be considered as included merely because an offer money, reward
or promise was made, for the latter might have existed without the former, the one being independent
of the other. In the present case there can be no doubt that after the crime was agreed upon by means
of a promise of reward, the criminal by his subsequent conduct showed a persistently and firm intent
in his plan to carry out the crime which he intentionally agreed to execute, it being immaterial whether
Datto Mupuck did or did not conceive the crime, once Manalinde obeyed the inducement and
voluntarily executed it. (U.S. vsThe Moro Manalinde, 14 Phil. Rep., 77.)
The trial court found that the crime charged was committed with the aggravating circumstances following:
8. When craft, fraud or disguise is employed.
9. When advantage is taken of superior strength or means are employed to weaken the defense.
10. When the act is committed with abuse of confidence.
11. When advantage is taken is taken by the culprit of his public position.
13. When the crime is committed on the occasion of a fire, shipwreck or other calamity or misfortune.
15. When it is committed at night, or in an uninhabited place, or by a gang.
16. When the crime is committed in contempt with insult to the public authorities.
As to number 8:
We do not believe that this circumstance was present.
This circumstance is characterized by the intellectual or mental rather than the physical means to which the
criminal resorts to carry out his design. This paragraph was intended to cover, for example, the case where a
thief falsely represents that he is the lover of the servant of a house in order to gain entrance and rob the
owner (astucia); or where (fraude) A simulates the handwriting of B, who is a friend of C, inviting the latter,
without the knowledge of B, by means of a note written in such simulated hand, to meet B at a designated
place, in order to give A, who lies in wait at the place appointed, an opportunity to kill C; or where (disfraz)
one uses a disguise to prevent being recognized; and cases of that class and nature.
We are unable to find from the facts proved any element which warrants the conclusions of the learned trial
court as to the presence of this circumstance in the commission of the crime of which the appellants were
found guilty. They boldly marched from the mountains of Lipada to Davao, partly, at least, in the daytime, with
the purpose of attacking the town, which purpose they communicated to at least three person, one of whom
was permitted to precede them to the town. they advanced against the town at about 4.15 in the afternoon
without any effort at concealment. They were in no way disguised, but, on the contrary, each wore the greater

portion of the Constabulary uniform in which he was clad at the time of the mutiny. While it appears that
some of them had cloths wrapped about their heads, it does not appear that this was done as a disguise, but
was following rather the custom of the country in which they had been reared. We find in all the case nothing
of craft, fraud or disguise.
As to number 9:
The circumstance depends upon the relative strength of the one attacking and the one attacked. It can hardly
be said that advantage is taken of superior strength or means are employed to weaken the defense when
twenty-three men, in the daytime, openly and without stratagem of any kind, attack a town of the size of
Davao. the results of the attack clearly show that the strength of the attacking party was not sufficient to
accomplish the purpose in view. They demonstrate, under the circumstance, that no means were employed to
weaken the defense, outside of such as are inherent in the situation when one body of men attacks another
with deadly weapons.
As to number 10:
For the existence of this circumstance it is necessary that there exist a relation of trust or confidence between
the person committing the crime and the one against whom it is committed and that the former make use of
such relation to commit the crime. For example, where one commits a robbery in a house in which, as a friend
of the owner, he is at the time a guest. No relation of this nature existed between the appellants and the
citizens of Davao or the deceased. The evidence fails to disclose a single fact upon which the existence of this
relation can be based.
As to number 11:
In order that this aggravating circumstance exist it is necessary that the person committing the crime be a
public official and that he use the influence, prestige or ascendency which such office gives him as the means
by which he realizes his purpose. The essence of the matter is presented in the inquiry, "Did the
accused abuse his office in order to commit the crime?" We do not believe that the facts of this case warrant
the finding of the trial court in this particular. (Supreme court of Spain, decisions of 4th March, 1872; 18th
December, 1871.)
As to number 13:
The reason for the existence of this circumstance is found in the debased form of criminality met in one who,
in the midst of a great calamity, instead of lending aid to the afflicted, adds to their suffering by taking
advantage of their misfortune to despoil them.
As is readily seen from the facts, no such condition as is described in this paragraph existed in Davao on the
occasion of the attack.
As to number 15:
The second paragraph of this subdivision reads:
The court shall take this circumstance into consideration according to the nature and characteristics of
the crime.

In this case, under all the circumstances, including those presented in the discussion relating to paragraph 9,
the fact that there were more than three armed persons in the attacking party is not sufficient to call for the
application of the provisions of this paragraph.
As to number 16:
The supreme court of Spain has held "that the circumstance of contempt of or insult to public authority,
provided for in paragraph 16 of the Penal Code, can exist only when such authority is engaged in the exercise
of its functions and he who is thus engaged in the exercise of said functions is not the person against whom
the crime is committed in which that circumstance appears;" the court further saying that such aggravating
circumstance was not present in the case before it "because D. Jose Torres, although he was municipal judge,
was the object of the murder involved in that case."
In the case at bar, if the crime was committed with contempt of and insult to the public authorities, those
authorities must have been the public authorities of Davao. But the persons exercising that authority were
the very persons against whom, among others, the crime charged in this action was being committed.
After diligent investigation and extended consideration, we have been unable to find that any aggravating
circumstances attended the commission of this crime.
There being present no aggravating circumstances and there existing no extenuating circumstances, the
penalty imposed must be in its medium degree.
The judgment of the court below is hereby modified and the appellants are each sentenced to cadena
perpetua, to the accessories provided by law, to pay, jointly and severally, to the heirs of the deceased Roy
Libby the sun of P1,000 and to pay the costs of the trial.
So modified, the judgment is affirmed, with costs against the appellants.
Arellano, C.J., Mapa, Carson, and Trent, JJ., concur.

EN BANC

[G.R. No. 140872. June 23, 2003]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PABLITO INGGO y TAMBULA, accused-appellant.

DECISION
QUISUMBING, J.:
For automatic review is the decision[1] of the Regional Trial Court of Dipolog City, Branch 8, dated October
6, 1999, in Criminal Case No. 7593, convicting appellant Pablito T. Inggo of murder, sentencing him to suffer
the penalty of death, and ordering him to pay the heirs of the victim the sum of P500,000 by way of
consequential damages, P100,000 as moral damages, and to pay the costs.
His conviction stemmed from the Information which accused him of murder, allegedly committed as
follows:
That, in the afternoon, on or about the 15 th day of August, 1996, in the municipality of Katipunan, Zamboanga
del Norte, within the jurisdiction of this Honorable Court, the said accused armed with hunting knife and with
intent to kill by means of treachery and evident premeditation, did then and there wilfully, unlawfully and
feloniously attack, assault and stab one ROSEMARIE CONDE REINANTE, thereby inflicting upon her several
wounds on the vital parts of her body which caused her death shortly thereafter; that as a result of the
commission of the said crime the heirs of the herein victim suffered the following damages, viz:
a) Indemnity for victims death P 50,000.00
b) Loss of earning capacity

50,000.00

_______________
P100,000.00
CONTRARY TO LAW (Viol. of Art. 248, Revised Penal Code), with the qualifying circumstances of treachery and
evident premeditation.[2]
Appellant pleaded not guilty when arraigned on January 17, 1997. Trial on the merits ensued thereafter.
The version of the prosecution, as summed up from the records by the Office of the Solicitor General, is as
follows:
On August 15, 1996, about 8:00 oclock in the morning, Rosemarie Reinante [3] requested her parents-in-laws
house helper, Leonisa Insic,[4] to go to her house in Poblacion Katipunan, Zamboanga del Norte, to do some
household chores (p. 3, TSN, July 15, 1997). Leonisa Insic went to Rosemarie Reinantes house as bidden (p. 8,
TSN, July 8, 1997).
About 1:00 oclock in the afternoon of that day, Leonisa Insic returned to the house of Rolando Reinante, Sr.
where she was living. She proceeded to the kitchen to take her lunch (p. 10, TSN, July 15, 1997). While she

was eating, Leonisa Insic noticed somebody buy a bottle of beer from Rolando Reinante, Sr.s store which was
then being tended by Lando Tangga, another housekeeper of Rolando Reinante, Sr. The store was attached to
the house of Rolando Reinante, Sr. Later, Leonisa Insic identified that somebody as the appellant (pp. 8-10,
TSN, July 8, 1997; p. 15, TSN, July 15, 1997).
Appellant gave the amount of P50.00 as his payment for the beer. Since there was not enough cash to change
the fifty-peso bill, Lando Tangga asked Leonisa Insic to have the fifty-peso bill changed to smaller
denominations. Leonisa Insic consequently went to another store to have the bill changed to smaller
denominations (ibid.).
Leonisa Insic returned to the store moments later after having the fifty-peso bill changed to smaller
denominations. She gave the money to Lando Tangga but the latter refused to accept it. Instead, he told
Leonisa Insic to give the change to appellant. Leonisa Insic obliged. Leonisa Insic then approached appellant
and tried to give him his change. Appellant, however, refused to accept his change and insisted that he should
get back the full amount he gave. Exchange of words, thereafter, ensued between Leonisa Insic and appellant
(pp. 11-13, TSN, July 8, 1997).
While appellant and Leonisa Insic were having an exchange of words, Rosemarie Reinante
arrived. Consequently, Rosemarie Reinante asked for the money and volunteered to give it to
appellant. Appellant still refused to accept his change from Rosemarie Reinante which led to an argument
(pp. 13-15, ibid.).
While appellant and Rosemarie Reinante were thus arguing, appellant suddenly rushed to Rosemarie
Reinante. When he was already near her, he loosened his belt and removed it from his waist. Rosemarie
Reinante consequently ran. Appellant chased her and when he caught up with her, appellant stabbed
her. Immediately, Leonisa Insic came to Rosemarie Reinante's rescue. She tried to separate Rosemarie
Reinante and appellant by holding the latter's hands. Leonisa Insic was able to stop appellant which gave
Rosemarie Reinante an opportunity to run towards the road. However, appellant was able to get away from
Leonisa Insic and chased Rosemarie Reinante again. When appellant failed to catch up with Rosemarie
Reinante, he ran towards the direction going to the cemetery of Katipunan (pp. 15-16,ibid.).
Leonisa Insic saw Rosemarie Reinante fall down when she reached the road. She then ran towards Rosemarie
Reinante's house to report the matter to Rolando Reinante, Jr. She did not find Rolando Reinante, Jr. in their
house. Instead, she found some of the house helpers (names not on record) of Rosemarie Reinante. When
they asked her what happened, she said that Rosemarie Reinante was stabbed. Leonisa Insic did not anymore
return to the place where Rosemarie Reinante fell down because she was afraid (pp. 16-18, ibid.).
Later, policemen arrived. Together with Leonisa Insic, they brought Rosemarie Reinante to the Dipolog City
hospital. When they reached the hospital, Rosemarie Reinante was pronounced dead on arrival (pp. 1819, ibid.).[5]
The defenses version based on the lone testimony of the accused is, as summarized by the trial court, as
follows:
That he was an ice cream vendor before he was arrested and detained in jail on August 15, 1996. xxx That in
the morning of August 15, 1996, from Katipunan, Z.N., where he resides, he went to Roxas, an adjoining town
of Katipunan to sell ice cream. He was just walking while pushing his ice cream box along the way as he
passed and sold ice cream to children and students in schools at Brgy. Tambo, Piao, and Nabilid, before
reaching the poblacion of Roxas about 12:00 oclock noon. He took his lunch [in] the public market of Roxas,

after which he drunk tuba and started back on his way to Katipunan at about 1:00 oclock as he continued
selling his wares on the same route he took in going to Roxas. It was already about 4:00 oclock in the
afternoon when he arrived [in] Katipunan. However, he was not able to reach his house because when he was
at the crossing nearby the cemetery of Katipunan, he was waylaid by three armed men whose names were
unknown to him except that he could only recognize their faces, and apprehended him. So he asked the
persons who apprehended him what was his fault, but was told in reply just *come+ with us. Without
showing any resistance, he was brought to the police station of Katipunan. Then at the police station, the
three persons who waylaid him took off his T-shirt, pants, and shoes. They also took off his
brief[s]. Thereafter, he was detained in jail. While in detention, he was not informed of his right to counsel
and neither was he accorded the assistance of a lawyer. He was not also informed of his right to remain silent
and that anything he would say or any statement he made may be used against him.
That by about 6:00 oclock *of+ that afternoon, he was brought by the policemen to the provincial hospital in
Dipolog City. The purpose of bringing him to the hospital was just to examine his breathing, but the doctor
who examined him observed that he was under the influence of liquor or ha*d+ taken intoxicating drinks he
was brought back to the detention cell of Katipunan Police Station. He had already put on or put back his
[clothes], which were returned to him by the policemen. That while in the detention cell, he was boxed and
mauled by two police officers one of whom he recognized as a certain Rodel Castillon while he did not know
the name of the other. The mauling xxx made him unconscious as he suffered injuries on the different parts of
his body. That upon regaining consciousness, he noticed that he already sustained a [stab] wound on his
stomach above his navel. He could not remember nor identify the person who stabbed him.
In the morning of August 16, 1996, he was again brought to the same hospital xxx for [the] treatment of his
[stab] wound. He was admitted *to+ the hospital from August 16, 1996 to August 22, 1996 the accused
denied the ownership of the following exhibits for the prosecution, to wit:
Exh. "A" - a dirty white T-shirt with green combination allegedly wor[n] by the accused at the
time of the incident;
Exh. "B" - a leather belt with a secret pocket that serves as a scabbard sewn in the inside face of
the belt and the stainless knife that fits into the secret pocket, allegedly own[ed] by
the accused and allegedly used by him in stabbing the victim Rosemarie Conde
Reinante and in stabbing himself in an attempt to commit suicide;
Exh. "C" - a yellow towel with blood stain allegedly carried by the accused at the time of the
incident;
Exh. "D" - a stainless hunting knife, measuring 4 1/2 inches by its blade, and 2 1/2 inches by its
handle, mentioned in Exh. "B".
The accused likewise denied knowing the victim Rosemarie Conde Reinante as well as her husband Rolando
Reinante, Jr. He further denied knowing the two witnesses for the prosecution Leonisa Insic and Lando
Tangga. That he did not see all the above-named persons on August 15, 1996, because on that day, he was at
the nearby town of Roxas selling ice cream.[6]
The trial court found the evidence for the prosecution credible and sufficient to convict appellant of
murder beyond reasonable doubt. The decretal portion of its decision reads:

WHEREFORE, and for all of the foregoing observations, and finding the guilt of the accused established by
proof beyond reasonable doubt, herein accused Pablito Inggo y Tambula, is hereby convicted of the crime of
Murder charged against him as principal by direct participation, and in the light of Article 248 of the Revised
Penal Code, as amended by Rep. Act 7659, sentence[d] to suffer the supreme penalty of DEATH, to indemnify
the heirs of the victim Rosemarie Conde Reinante, the sum of P500,000.00 by way of consequential
damages, P100,000.00 as moral damages, and to pay the costs.
SO ORDERED.[7]
Hence, this automatic review, with appellant assigning the following errors:
I
THE TRIAL COURT ERRED IN APPRECIATING THE QUALIFYING AND AGGRAVATING CIRCUMSTANCES OF
TREACHERY, WITH INSULT OR IN DISREGARD OF THE RESPECT DUE THE OFFENDED PARTY ON ACCOUNT OF
HER RANK, AGE AND SEX, AND INTOXICATION, ALTHOUGH THE SAME WERE NOT ESTABLISHED BEYOND
REASONABLE DOUBT.
II
THE COURT A QUO GRAVELY ERRED IN SENTENCING THE ACCUSED-APPELLANT TO DEATH DESPITE THE FACT
THAT NO QUALIFYING AGGRAVATING CIRCUMSTANCE WAS ATTENDANT.
III
NOTWITHSTANDING ALL THESE, THE COURT A QUO ERRED IN CONVICTING THE ACCUSED-APPELLANT
ALTHOUGH IT IS EVIDENT THAT HE WAS ONLY FRAMED-UP.[8]
Principally, the issues for our resolution are (a) whether appellants guilt was proved beyond reasonable
doubt, and (b) whether the penalty of death was properly imposed on him. To resolve these issues, we must
also inquire into credibility of the witnesses and their testimonies.
Appellant insists that he was merely framed-up by the police who could not find the real
perpetrator. He points to the stab wound he sustained while in detention as proof of the devious and
diabolical machinations by the police officers to implicate him in the said crime. [9] He contends that, granting
without admitting that he was the assailant, there could be no treachery since the victim provoked appellant
by arguing with him when she tried to force him to receive the P40.00 change. Appellant adds that since the
assault was frontal, it could not be said to have been sudden and unexpected.[10]
The appellee, as represented by the Office of the Solicitor General (OSG), counters that appellants claim
that he was merely framed up should be rejected as it is uncorroborated and unsubstantiated by any evidence
other than his self-serving claim. Contrary to appellants claim, two eyewitnesses positively identified
appellant as the perpetrator of the crime.[11] The OSG asserts that treachery attended the commission of the
crime as the attack was so sudden and so unexpected since the victim did not know that appellant had a knife
with him, securely sewn and hidden inside his belt. Even if there was a prior argument between appellant and
Rosemarie, she could not have anticipated that he would stab her. [12]
Well-established is the principle that the findings of the trial court on the credibility of witnesses and their
testimonies are accorded great weight and respect, even finality, on appeal unless the trial court has failed to
appreciate certain facts and circumstances which, if taken into account, would materially affect the result of

the case.[13] We have thoroughly reviewed the records of this case and we see no compelling reason to depart
from this well-settled rule.
The positive identification of appellant by the two eyewitnesses, Leonisa Insic and Lando Tangga, cannot
be overcome by denial and allegation of a frame-up. Like alibi, which by its nature is inherently weak, the
allegation of frame-up is easy to concoct, hence it has been viewed by this Court with disfavor. [14] Leonisa
Insic categorically pointed to appellant in open court as the same man who after drinking a bottle of beer
bought from her masters store, refused to receive his change and instead insisted on getting back his P50
bill. She also positively identified appellant as the same man who stabbed her Manang Rosemarie Reinante to
death.[15] Although a mere house helper[16] who had studied up to Grade 2 only, and had stayed in the
mountains until she was 18 years old, she testified in a candid and straightforward manner worthy of
belief. The affidavit she executed was fully explained to her in the vernacular and she affirmed that she signed
it because she understood it and knew it to be the truth.[17]
Witness Lando Tangga corroborated Leonisas testimony. According to Tangga, he explained to appellant
that the bottle of beer was worth P10.00, so that his change wasP40.00 but appellant refused the change,
claiming that it was insufficient. So Tangga then asked Leonisa Insic to be the one to explain to appellant and
return his change, but to no avail. After sometime, Tangga saw his Manang Rosemarie arrive. Rosemarie got
the money from Leonisa and tried to give it to appellant. But appellant then rushed towards Rosemarie to
stab her. Tangga testified that appellant delivered the fatal blow on her stomach.[18]
No ill motive was imputed or shown against these two witnesses as to why they would falsely testify
against appellant. The mere fact that Rolando Reinante, Jr., Rosemaries husband, was with them when they
gave their statements at the police station did not taint their credibility. For the husband of the deceased
victim surely wanted to see that the real perpetrator be punished for her death. Contrary to appellants
contention, no grieving husband would coach his household helpers to impute a crime on someone whom
they knew to be innocent. That would be contrary to human nature and experience. Absent any evidence
showing a reason or motive for prosecution witnesses to perjure their testimonies, the logical conclusion is
that no improper motive exists, and that their testimonies are worthy of full faith and credit.[19]
Appellant claims to be merely passing through the area when the police apprehended him. However, he
could not present any witness who can support his allegation. To the contrary, a witness for the prosecution,
Edmundo Ballares,[20] testified that while he was in the cemetery, he saw police officer Edgar Calisas pursuing
a man from the highway running towards the cemetery.[21] When the police caught up with the man, Ballares
offered his assistance by holding the hands of the man, and thereafter bringing him towards the road. [22]The
candid and straightforward testimony of Ballares stems from a forthright narration of what he actually
witnessed. The grueling cross-examination by the defense counsel could not shake the foundation of his
account. Witness Ballares positively pointed to appellant as the man chased by the police and subsequently
caught in the premises of the cemetery.
Appellant denies the charge against him, but his denial and his claim of frame-up are unsubstantiated
by clear and convincing evidence. His denial is a negative and self-serving testimony which deserves no weight
in law. It should not be given greater evidentiary value than the testimony of credible witnesses who testify
on affirmative matters.[23]
Appellant claims maltreatment committed on him by the Katipunan police. These claims are, however,
also uncorroborated and unsubstantiated. He was unable to present any medical certificate concerning any
injury he might have sustained on account of mauling or maltreatment. He did not file any criminal or
administrative charge against the police officers to whom he attributed the maltreatment. Noteworthy, the
prosecution presented a medical certificate as evidence that the stab wound of appellant was selfinflicted.[24] In the absence of any clear and convincing proof, to the contrary, the presumption stands that
there was regularity in the performance of official duties[25] by the Katipunan police. Otherwise, it would

become facile and convenient for any accused to shout maltreatment and render inutile any arrest lawfully
made, to the detriment of peace and order in the community.
While we find that sufficient evidence was presented to sustain the conviction of the appellant for
stabbing to death Rosemarie Reinante, we are unable to agree that treachery was proved by the
prosecution. The qualifying circumstance of treachery cannot be presumed and must be proved as sufficiently
as the crime itself. Treachery or alevosia exists when the offender commits any of the crimes against persons
employing means, methods, or forms in the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the offended party might make. [26] To prove
treachery, the prosecution must show (a) that at the time of the attack, the victim was not in a position to
defend himself and (b) that the accused consciously adopted the particular means, method, or form of attack
employed by him.[27] Here, the prosecution failed to show adequately these requisite elements.
As testified to by the eyewitness, Leonisa Insic, appellant first chased Rosemarie before he was able to
inflict the fatal stab against her. A portion of her testimony runs as follows:
Q: Now, you said that the man rushed on your Manang Rosemarie, were they able to get near each
other?
A: Yes, sir.
Q: And what did you notice when they were already near to each other?
A: Then, I noticed that the man loosen his belt and he took off that belt from his waist.
Q: After that man loosen his belt, took off from his waist, what did that man do?
A: Then, that man chased Manang Rosemarie at a swing and then later on stabbed Manang
Rosemarie.[28]
It is apparent that Rosemarie tried to run away but appellant caught up with her. Based on eyewitness
testimony, we are not convinced that treachery attended the commission of the crime. The stabbing was not
instantaneous. It was preceded by heated arguments. The victim must have been forewarned that appellant
might try to harm her. Where an argument or a quarrel preceded a killing, treachery is non-existent since the
victim could be said to have been forewarned and could anticipate aggression from assailant. [29]
For treachery to be considered, not only must the victim be without means of defending herself, but also
the means, method, or form employed by the assailant must have been consciously adopted. The interval of
time between the act of loosening his belt, getting the knife, chasing the victim and eventually stabbing her
sufficiently shows that the use of the knife was not consciously thought of, but rather it came together with
appellants outburst, arising from the heated arguments he had with Leonisa and then the victim. Thus, we
cannot sustain the view that treachery attended the commission of the crime to qualify it as murder. We hold
that appellant is liable only for homicide.
Moreover, here the generic aggravating circumstance of disregard of sex could not be considered in the
perpetuation of the offense. Disregard of sex which, for obvious reasons refers to the female gender, requires
that the accused must have deliberately intended to insult or to show manifest disrespect for the sex of the
offended party.[30] Here, we find no showing that the attack showed a manifest disrespect for the gender of
the victim. Apparently, the victim arrived unexpectedly and took the cudgels for Leonisa, re-directing
appellants ire toward the victim herself.
Further, we find the alternative circumstance of intoxication inexistent. Intoxication to be aggravating
must have been the source of bravado that propelled the accused to commit the crime. As we have previously
held:

Our penal laws do not look kindly on habitual drunkards, or if the accused already resolved to commit the
crime, then got intoxicated so as to fortify that resolve with false courage dictated by liquor, his liability should
be aggravated. Although there is no hard and fast rule on the amount of liquor that the accused imbibed on
that occasion, but the test is that it must have sufficed to affect his mental faculties, to the extent of blurring
his reason and depriving him of self-control.[31]
Here, appellants degree of intoxication was not proved with certainty. He had allegedly been
drinking tuba earlier that day, and he did buy a bottle of beer at the store of the victims in-laws. But these
facts are not sufficient to establish that indeed appellant was intoxicated at the time he committed the crime,
much less that he sought intoxication to fortify his resolve in committing it. Absent clear and convincing proof
as to appellants state of intoxication, we are unable to agree that the alternative circumstance of intoxication
was present to aggravate the offense.
In any event, intoxication as well as disregard of sex were not alleged in the information, hence, these
may not be considered to aggravate the crime for the imposition of a higher penalty, whether by degrees or
periods. This is pursuant to the amendments made to the Revised Rules of Court, particularly to Sec. 8 of
Rule 110 of the Revised Rules of Criminal Procedure[32] (which took effect on December 1, 2000). This section
now mandates that the complaint or information should state not only the qualifying but also the
aggravating circumstances in order that they may be appreciated. Since this procedural rule is favorable to
the accused, it is proper to give it retroactive effect in this case.
The award of damages also needs modification. The award of consequential damages in the amount
of P500,000 is deleted for lack of factual basis. Instead, we award in favor of the victims heirs the amount
of P50,000 as indemnity ex delicto.[33] The award of moral damages is also reduced from P100,000 to P50,000,
consistent with our recent case law.[34] In addition, we award another P25,000 as temperate
damages[35] considering that it has been shown that the victims family suffered some pecuniary loss but the
amount thereof was not sufficiently established.
WHEREFORE, the decision of the Regional Trial Court of Dipolog City, Branch 8, convicting appellant
Pablito T. Inggo, of murder and sentencing him to death in Criminal Case No. 7593 is hereby
MODIFIED. Appellant is found GUILTY beyond reasonable doubt of HOMICIDE as defined by Article 249 of the
Revised Penal Code. For that offense, the penalty set therefor is reclusion temporal in its medium
period,[36] there being no aggravating or mitigating circumstance, in accordance with Article 64 (1) of the
Code. Applying the Indeterminate Sentence Law, appellant is hereby sentenced to suffer imprisonment for an
indeterminate period ranging from six (6) years and one (1) day of prision mayor in its minimum period as
minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal in its medium
period as maximum. Appellant is also ORDERED to pay the heirs of the victim P50,000.00 as civil
indemnity, P50,000.00 as moral damages, and P25,000.00 as temperate damages. Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Corona,
Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.
Austria-Martinez, J., on official leave.

[1]

Rollo, pp. 16-36.

[2]

Records, p. 1.

[3]

Rosemarie Reinante is the wife of Rolando Reinante, Jr. See TSN, 8 July 1997, p. 2.

[4]

Leoni[s]a Insic is the house helper of Rolando Reinante, Sr., father of Rolando Reinante, Jr. She lives in
Rolando Reinante, Sr.s house in Katipunan, Zamboanga del Norte (ibid). See also Rollo, p. 121.

[5]

Rollo, pp. 121-124.

[6]

Id. at 26-28.

[7]

Id. at 35-36.

[8]

Id. at 53-54.

[9]

Id. at 66.

[10]

Id. at 64-65.

[11]

Id. at 130-131.

[12]

Id. at 139.

[13]

People v. Galam, G.R. No. 114740, 15 February 2000, 325 SCRA 489, 496-497.

[14]

People v. Alegro, G.R. No. 112797, 8 July 1997, 275 SCRA 216, 220.

[15]

TSN, 8 July 1997, p. 20.

[16]

TSN, 15 July 1997, pp. 21-23.

[17]

Id. at 24-25.

[18]

TSN, 23 July 1997, pp. 16-19.

[19]

People v. Tortosa, G.R. No. 116739, 31 July 2000, 336 SCRA 604, 610.

[20]

Also spelled as Balladares in some part of the records; TSN, 29 July 1997, p. 2.

[21]

TSN, 29 July 1997, p. 27.

[22]

Id. at 30-31.

[23]

See People v. De la Rosa, Jr., G.R. No. 133443, 29 September 2000, 341 SCRA 425, 438.

[24]

Records, p. 96.

[25]

RULES OF COURT , Rule 131, Sec. 3(m).

[26]

REVISED PENAL CODE, Article 14 (16).

[27]

People v. Caber, Sr., G.R. No. 129252, 28 November 2000, 346 SCRA 166, 174 citing People v. Gutierrez, Jr.,
G.R. No. 116281, 8 February 1999, 302 SCRA 643, 665.

[28]

TSN, 8 July 1997, p. 15.

[29]

People v. Buluran, G.R. No. 113940, 15 February 2000, 325 SCRA 476, 487.

[30]

F.D. Regalado. CRIMINAL LAW CONSPECTUS 77 (1st ed. 2000) citing People v. Puno, G.R. No. L-33211, 29
June 1981, 105 SCRA 151, 160.

[31]

Regalado, op. cit. 105 citing People v. Noble, 77 Phil. 93, 101-102 (1946); People v. Boduso, G.R. Nos. L30450-51, 30 September 1974, 60 SCRA 60, 70-71.

[32]

SEC. 8. Designation of the offense. The complaint or information shall state the designation of the offense
given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and

aggravating circumstances. If there is no designation of the offense, reference shall be made to the
section or subsection of the statute punishing it.
[33]

People v. Verde, G.R. No. 119077, 10 February 1999, 302 SCRA 690, 706.

[34]

People v. Rabanal, G.R. No. 146687, 22 August 2002, p. 12.

[35]

ART. 2224. Temperate or moderate damages, which are more than nominal but less than compensatory
damages, may be recovered when the court finds that some pecuniary loss has been suffered but its
amount cannot, from the nature of the case, be proved with certainty.

[36]

14 years, 8 months, 1 day to 17 years and 4 months.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 77284 July 19, 1990
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BONIFACIO BALANSI alias "BAN-OS", defendant-appellant.
The Solicitor General for plaintiff-appellee.
Balgos & Perez for defendant-appellant.

SARMIENTO, J.:
The accused-appellant stands charged with the murder of Elpidio Dalsen on January 30, 1982 at Balinciagao,
Pasil, Kalinga-Apayao. The Information alleged that he, armed with a Garand rifle, went inside the house of the
victim, then allegedly fast asleep, where he shot him twice and killed him. Treachery was held to be present,
and so were evident premeditation and employment of means to weaken the defense of the victim. 1
The accused-appellant was then the Barangay Captain of Balinciagao Norte, Pasil, Kalinga-Apayao, and a
member of the Civilian Home Defense Force (CHDF), while the victim was the Provincial Development Officer
of Kalinga-Apayao. 2 The incident took place during a wedding celebration at Balinciagao Sur, Pasil, at or about
5:30 or 6:00 o'clock in the afternoon. The prosecution presented eight witnesses. The defense placed two on
the stand.
The trial court found the accused guilty as charged and sentenced him to die and to pay a total of P590,000.00
in actual (P540,000.00 for loss of the victim's earning capacity) and moral damages, plus costs. 3
It appears that the victim, a nephew of the appellant, was then sleeping at the house of his parents located
opposite the house where the wedding celebration was being held. At or about 5:00 o'clock in the afternoon,
Beatrice Canao, a Balinciagao resident, saw the accused, her uncle, standing at the door of the house of the
victim's parents, also her relatives, armed with a gun. She inquired what he was doing there and he allegedly
replied that he was waiting for the victim. She then entered the premises to locate an old newspaper with
which to wrap food, a rice cake, when she saw the victim asleep. When she left, she saw the accused at the
doorway. After disposing of her rice cake (which she gave to a certain Fr. Medina), she heard two gunshots,
fired at an interval of two or three seconds, emanating apparently from the house, to which she shortly
rushed. She allegedly met the accused at the steps leading to the second floor, brandishing his rifle. 4
She allegedly shouted "putok, putok!" 5 She then reported the matter to the police.
Yulo Asbok a fellow CHDF member of the accused and likewise a Balinciagao resident, also heard two gunshots
ring that afternoon. He said that he was three meters from the house where the gunshot sounds seemed to
have originated. He allegedly proceeded there but was met by the accused at the steps. They allegedly

grappled for possession of the rifle, which, he alleged, was still warm and reeked of gunpowder. He was able
to wrest possession, after which, the accused allegedly ran away and fled to Pogon, also in Balinciagao. He
later learned that the victim had been shot and that he died at Lubuagan Hospital. 6
Rosalina Dalsen, the victim's wife was enjoying the wedding celebration when she heard two gunshots. She
made inquiries subsequently and was informed that the victim was her husband. She claimed that she saw the
accused standing at the entrance of her parents- in-law's house prior thereto. 7
Dr. Nicolas Balais, a dentist by profession, was also at that celebration when he heard the shots. He then went
to the victim's parent's house where they, the shots, rang out from. He did not allegedly have in mind that
somebody had actually been fired upon but thought that may be there had been a burglary. He ascended the
steps of the house where the accused earlier met Beatrice Candao and Yulo Asbok, and entered the second
floor. He saw the victim lying in his room, whom he initially believed to be merely sleeping, but who was, in
fact, dead. 8
The prosecution also presented Simeon Valera, principal of Pasil Central School, and Artemio Dalsen the
victim's brother, who sought to establish a motive for the killing of the victim, a motive they imputed to the
accused. Valera testified that revenge was supposedly a tradition among Kalingas (of which both the accused
and victim were members), which, however, could be prevented by the dusa, meaning, apparently,
intervention and mediation by community elders. 9 Meanwhile, Dalsen claimed that the accused had nursed
along- standing grudge against the victim, whom he accused of delaying on alleged award for the construction
of a bridge in Balinciagao in 1979. 10
After the prosecution rested, the defense presented its evidence. It presented two witnesses, the accused
himself and Masadao Jose, who lived in Samangana, Balinciagao.
The accused claimed that he was also at the wedding celebration on that fateful afternoon when he too heard
two gunshots break in the air. As a member of the CHDF, he allegedly took it upon himself to investigate the
matter. He said that he went to the direction where the shots came from and was on his way to the entrance
of the house when Yulo Asbok allegedly prevented him from doing so, who grabbed the firearm he was
carrying. He did not allegedly know at that time that the victim had been shot and allegedly learned of it only
on the following day. He admitted having ran away but allegedly because he had been implicated. Four days
later, he voluntarily turned himself in to the police. Masadao Jose corroborated his statement. 11
In returning a verdict of guilty, the trial judge observed: "While there is no eye witness who testified to having
seen the accused Bonifacio Balansi shoot the victim, yet all the circumstances pointed to him as the
perpetrator of the crime." 12
The circumstantial evidence referred to came primarily from the lips of Yulo Asbok and Beatrice Candao as
well as the accused himself, who admitted having been at the scene of the crime. Obviously, the judge did not
lend credence to the accused's defense.
The accused-appellant now contends that the judge erred, first, in appreciating circumstantial evidence,
second, in appreciating treachery, and third, in rejecting his defense of alibi.
We affirm, with modification, the decision appealed from.
While there was no eyewitness account, the web of circumstantial evidence points to no other conclusion
than that the accused was guilty of shooting the victim, Elpidio Dalsen to death in the afternoon of January 30,

1982. These circumstances are as follows: (1) He was seen standing by the entrance of the house where the
victim had sojourned, armed with a long rifle, minutes before gunshots were heard. Three witnesses saw him:
Beatrice Canao, Yulo Asbok, and Rosalina Dalsen. (2) Moments later, two shots rang out, one after the other.
Four witnesses heard them: Canao, Asbok, Dalsen and Nicolas Balais. (3) Thereafter, Canao saw him
descending from the steps of the house. Asbok also saw him there, whom he wrestled for the possession of
the rifle. (4) He fled and hid for four days.
Under Rule 133, Section 5, of the Rules of Court:
SEC. 4. Circumstantial evidence, when sufficient. Circumstantial evidence is sufficient for
conviction if.
(a) There is more than one circumstance;
(b) The facts from which the inferences are derived are proven; and
(c) The combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt. 13
As we glean from the evidence, there is no one, other than the accused-appellant, who could have
perpetrated the offense.
The accused-appellant, as we said, disagrees. He insists that he was there, precisely, to investigate the matter,
and armed himself for the purpose, but was stopped by Yulo Asbok. His protests notwithstanding, we too
must reject this defense. Two reasons persuade us. First, he has not ascribed any motive to Yulo Asbok as to
why he, Asbok should testify falsely against him. Second, he admits having fled immediately thereafter. If he
were truly innocent, he would not have done so. We have held time and again that flight is a silent admission
of guilt. 14 As aptly put "The righteous is brave as a lion, but the wicked man fleeth." 15
If he were moreover truly innocent, and that it was Yulo Asbok who had something to do with the killing and
who had meanwhile tried to stop him from conducting an inquiry, it would have been he, the accused, to be
the first to make a report to the authorities so that Asbok could be brought to the bar of justice. If the latter
did try to prevent him from performing his duties, as he claimed, 16 he should have gone to lengths to
implicate Asbok because that too was his duty.
We also reject his claims of inconsistency on the part of the prosecution's witnesses, notably Asbok who
stated that he was the first to be in the victim's house after the shooting (aside from the accused), in the face
of Canao's testimony that she also had been there. The Court is not convinced that an inconsistency exists. For
obviously, Asbok had been mistaken. Canao had earlier been there.
The Court sees no need to make an inquiry on the admissibility of testimonies attributing motive to the
accused-appellant. We are sufficiently persuaded that even without any successful showing of a motive, the
circumstantial evidence on hand nevertheless suffices to warrant a conviction beyond reasonable doubt.
The Court, however, is not convinced that the accused-appellant had committed murder arising from
treachery, evident premeditation, and means employed to weaken the defense of the victim. As to treachery,
jurisprudence is ample that the manner of attack must be shown. While there are testimonies to the effect
that the victim was "fast asleep", we can not safely presume that he was still in that condition when the

accused sprung his attack. And since nobody saw the actual shooting, we can not justifiably say that the victim
was still actually still asleep at that time. 17
Neither is evident premeditation a qualifying circumstance. In appreciating evident premeditation, it is
necessary to show: (1) the time when the offender determined to commit the offense; (2) an act manifestly
indicating that the culprit had clung to his determination; and (3) a sufficient interval of time between the
determination and execution. 18 The prior determination of the accused to do away with the victim has not
been sufficiently demonstrated by the prosecution.
That the accused also employed means to weaken the victim's defenses is likewise missing in this case. As we
said, there was no actual eyewitness to the killing and hence, we can not say for sure, based on the evidence
before us, that the appellant did employ means to weaken the defense of the victim.
We, however, affirm the trial court insofar as it appreciated dwelling. Although the victim was not shot in his
house (his parents owned it) it has been held that the dwelling place need not be owned by the victim. 19 In
that case, it was held:
La circunstancia agravante de morada, aunque no fuese la casa propia de los occisos, debe
estimarse porque segun el Tribunal Supremo de Espaa " no solo por el respeto que el
domicilio ajeno merece, como especie de complements de la personalidad, y por el que es
debido al hogar de la familia, sino por el no menor de que es digna la residencia privada de
cualquier ciudadano, y por el mayor grado de malicia que revela quien busca a su victima alli en
donde se encuentra con la confianza y abandono propios del lugar elegido para el descanso y
las intimidades de la vida: razon por la cual habla el Codigo penal en el art. 10, no de domicillo
en sentido legal, sino de morada en su acepcion real, que no es otra que la del paraje en donde
una persona hace estancia de asiento. ... a titulo de nuesped, o por otro cualquiera.itcasl (S. de 25 de Junio de 1886, 2 Viada., 5 ed., 329.) 20
In the Basa case, the victims were killed while sleeping as guests in the house of another. Dwelling there was
held to be aggravating.
According to earlier cases, including U.S. v. Bredejo, 21 our ruling was that the dwelling place must be owned
by the offended party. In another decision, People v. Celespara, 22 dwelling was not appreciated as an
aggravating circumstance in the absence of proof that the victim owned the dwelling place where he was
killed. In People v. Guhiting, 23 morada was not likewise considered for the same reasons.
However, more recent cases have since followed the lead of Basa, notably People v. Galapia 24 and People v.
Sto. Tomas. 25
"Dwelling" is considered an aggravating circumstance because primarily of the sanctity of privacy the law
accords to human abode. According to one commentator, one's dwelling place is a "sanctuary worthy of
respect" 26 and that one who slanders another in the latter's house is more guilty than if he who offends him
elsewhere. However, one does not lose his right of privacy where he is offended in the house of another
because as his invited guest, he, the stranger, is sheltered by the same roof and protected by the same
intimacy of life it affords. It may not be his house, but it is, even for a brief moment, "home" to him. He is
entitled to respect even for that short moment.
It is with more reason in this case. The late Elpidio Dalsen died in the house of his very parents. who raised him
until he could be on his own.

Under the circumstances, we affirm the lower court, but only insofar as it held the accused-appellant
responsible for taking the life of Elpidio Dalsen. We hold him liable for simple homicide aggravated by
dwelling. Under the Revised Penal Code, he must suffer reclusion temporal in its maximum period, there being
no mitigating circumstances and one aggravating circumstance. 27
WHEREFORE, the appeal is DISMISSED. The accused-appellant is sentenced to an indeterminate penalty of
eight (8) years and one (1) day of prision mayor to seventeen (17) years, four (4) months, and one (1) day
of reclusion temporal. The grant of damages is affirmed.
SO ORDERED.
Melencio-Herrera (Chairman), Paras, Padilla and Regalado, JJ., concur.

Footnotes
1 Original Records, 1.
2 Rollo, 64.
3 Id., 79-80.
4 Id., 67-68.
5 Original Records, Id., 9.
6 Rollo, Id., 66-67.
7 Id., 64.
8 Id., 65-66.
9 Id., 68-70.
10 Id., 71-72.
11 Id., 74-76.
12 Id., 76.
13 RULES OF COURT, Rule 133, sec. 5, now sec . 4 of the REVISED RULES ON EVIDENCE.
14 See People v. Espinosa, No. 62613, January 17, 1986, 141 SCRA 110.
15 See People v. Guevarra, G.R. No. 65017, November 13, 1989.
16 T.s.n., Session of July 18, 1985, 177.
17 People v. Antugop, 94 Phil. 1046 (1954), (Unrep.).

18 1 AQUINO, THE REVISED PENAL CODE 352 (1987 ed.).

19 People vs. Basa, 83 Phil. 622 (1949).
20 Supra, 624-625.
21 21 Phil. 23 (1911).
22 82 Phil. 399 (1948).
23 88 Phil. 672 (1951).
24 Nos. L-39303-05, August 1, 1978, 84 SCRA 526.
25 Nos. L-40367-69, August 22, 1985, 138 SCRA 306.
26 AQUINO, Id., 315.
27 REV. PEN. CODE, art. 64, par. 3.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. L-34497 January 30, 1975

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BENJAMIN ONG y KHO and BIENVENIDO QUINTOS Y SUMALJAG, defendants-appellants.
Office of the Solicitor General Estelito P. Mendoza, Assistant Solicitor General Santiago M. Kapunan and
Solicitor Celso P. Ylagan for Plaintiff-appellee
Dominador Laberinto and Associates for appellant Benjamin Ong.
Jose R. Quintos and Luciano V. Bonicillo for appellant Bienvenido Quintos.

FERNANDEZ, J.:
This is an automatic appeal from a decision of the Circuit Criminal Court, Seventh Judicial District in Criminal
Case No. CCC-VII-922 Rizal, dated October 11, 1971, the dispositive part of which reads as follows:
WHEREFORE, finding the accused Benjamin Ong y Kho and Bienvenido Quintos y Sumaljag,
GUILTY, beyond reasonable doubt of the crime of Kidnapping with Murder as defined under
Article 248 of the Revised Penal Code, in relation to Article 267 thereof, as charged in the
Information, the Court hereby sentences each one of them to suffer the penalty of DEATH; to
indemnify the heirs of the deceased Henry Chua, the amount of P12,000.00; to pay moral
damages in the amount of P50,000.00, and another P50,000.00 as exemplary damages jointly
and severally; and to pay their proportionate share of the
costs. 1
The information filed by the Provincial Fiscal of Rizal, B. Jose Castillo against (1) Benjamin Ong y Kho, (2)
Bienvenido Quintos y Sumaljag (3) Fernando Tan, alias "Oscar Tan," and (4) Baldomero Ambrosio alias "Val",
the latter two being then at large, reads: .
That on or about April 23 to April 24, 1971, inclusive, in the municipality of Paraaque, province
of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, being then private individuals, conspiring and confederating together and mutually
helping one another did then and there wilfully, unlawfully and with treachery and known
premeditation and for the purpose of killing one Henry Chua and thereafter extorting money
from his family through the use of a ransom note, kidnap(ped) and carry(ied) away said Henry
Chua, initially by means of a friendly gesture and later through the use of force, in an
automobile, and later after having taken him to an uninhabited place in Caloocan City, with the

use of force detained him (Henry Chua) and kill(ed) him in the following manner to wit: The
accused after gagging and tying up Henry Chua and repeatedly threatening him with death,
assured him that if he would write and sign a ransom note for the payment by his family of the
sum of $50,000.00 (US), he would not be killed and would be released upon receipt of the
ransom money, but after said Henry Chua agreed and did execute such a ransom note, he was
again gagged and tied up by the accused, and thereafter stabbed in the abdominal region
several times with an icepick, inflicting upon him (Henry Chua) mortal wounds on his vital
organs, which directly caused his death.
All contrary to law with the following generic aggravating circumstances:
(a) Evident premeditation;
(b) Grave abuse of confidence;
(c) Nighttime;
(d) Use of a motor vehicle;
(e) Use of superior strength; and
(f) Cruelty. 2
Personal Circumstances of the Two
Appellants
At the time of the trial before the lower court in September of 1971, the accused Benjamin Ong was 31 years
old, employed with the Acme Shoes, Rubber and Plastic Corporation, a firm owned by his brother-in-law, Chua
Pak, for the past 11 years, the last 6 of which was as an assistant manager. He was already receiving a monthly
salary of P1,800.00 excluding yearly bonuses of P30,000.00 and other representation allowances or a total
annual income of from P60,000.00 to P70,000.00. He had his elementary schooling at the Assumption
Academy in San Fernando, Pampanga; his first and second years of high school at Chiang Kai-shek High School
in Manila; and his third and fourth years at the Mapua Institute of Technology. He was a third year Commerce
student, majoring in accounting at the University of the East, when he quit schooling in 1959. He married
Athena Caw Siu Tee Ong on November 25, 1962 at the St. Jude Catholic Church, by whom he already had four
children: Connie Louis, 7 years old; Dennis, 5 years old; Edgar, 3 years old; and Fanny, 1 year old. 3
On the other hand, accused Bienvenido Quintos was 39 years old, single, an unlicensed surveyor and
computer for two years already at the Robes Francisco Realty Corporation with a relatively "small" income. He
was a third year engineering student when he stopped studying. In 1954 he was charged of Resisting Arrest
and Assault Upon an Agent in Authority but this case was settled amicably. 4
Brief Synopsis of the Testimony of
the Prosecutions Witnesses
The prosecution presented several witnesses to prove its charge of kidnapping with murder. First to testify
was Patrolman Marciano Roque of the Crimes against Property Division of the Detective Bureau of the
Caloocan City Police Department who declared that: He knew Benjamin Ong for about 6 years already because
he usually investigated theft and robbery cases at the Acme Firm and at times received some money from

Ong. In a series of 6 meetings with Benjamin Ong starting from the first week of April, 1971, Benjamin Ong
confided to him his plan to get a man who cheated him in gambling by as much as P150,000; that he would ask
for money from the latter's parents; and that after which, he would kill the victim. Benjamin Ong's
determination was shown when his godson was even introduced to him as one who would help him. Benjamin
Ong brought him to Barrio Makatipo in Novaliches, Caloocan City and described it as a suitable place where to
bring the victim. Ong also told him that he had acquired a bag, flashlight and a piece of cloth. He was prevailed
upon by Benjamin Ong to participate in his plan assuring that he could resign from the government service
once the money is collected. Patrolman Roque revealed this plan to his Division Chief, Capt. Dueas, the
Officer-in-Charge, Lt. Manapat and the Chief of Police, Celestino Rosea. However, the three did not believe
that Benjamin Ong had the guts to do it. After the incident, Patrolman Roque said that he and Police Chief
Rosca met with Atty. Nestor Gonzales of the National Bureau of Investigation to supply the early leads in this
case although they did not find a trace of the crime when they went to Barrio Makatipo. 5
Miss Ligaya Tamayo testified next. She declared that: She worked as an entertainer at the Wigwam Nightclub
in Paraaque, Rizal and knew Henry Chua very well. At around 1:30 o'clock in the early morning of April 24,
1971, she and Miss Mickie Yaro had Henry Chua and Benjamin Ong for their guests. The two talked in Chinese
and had some drinks. Benjamin Ong showed her a check in favor of Henry Chua which he claimed that the
latter won in a gambling game. She, however, did not actually see him give it. At around 1:30 that same
morning, she accompanied the two to the door and saw them leave the place and ride in a Mustang car. 6
Sy Yap, older brother of Henry Chua, was the third witness. He testified that: He was with Atty. Nestor
Gonzales and other agents of the NBI on September 2, 1971 in Barrio Makatipo after Benjamin Ong pinpointed
the place of burial, and there he saw the decomposing body of the victim under the ground, immersed in
water. He saw and identified the following personal effects found with the body: a white gold watch which
stopped at the hour of 6:22 and date of "24"; Driver's License No. 32219 with the name of Sy Sing Biok alias
Henry Chua; Diner's card Diner Group 0004149-1; pass issued by the Bureau of Customs for Henry Chua
dated January 19, 1971; receipt for payment of the license of the car; residence certificate; lighter; wallet;
currencies in different denominations; shirt jacket; pair of shoes; socks; brief; undershirt; T-shirt; and trousers
with a mark "Especially tailored for Henry Chua, 2-2-71, No. 95812." 7
Dr. Ricardo G. Ibarrola, Jr., Medico-Legal Officer of the NBI appeared as the fourth witness. He testified on his
post mortem examination made on September 2, 1971 at La Funeraria Paz, of the deceased Henry Chua, 31
years old, single, and on his necropsy report, Exhibit "M". He said that the deceased sustained two wounds on
the liver and large intestine caused by a long pointed cylindrical instrument similar to an icepick. He added
that most likely, the assailant was in front of and on a higher level than the victim. Although this did not
appear in his report, he theorized that the two wounds were not the immediate cause of death since there
was only a slight degree of hemorrhage in the vicinity of the punctured wounds. He said that the liver and
large intestine had no sufficient time to bleed because something else must have happened which was the
asphyxiation or suffocation of the victim due to his burial. 8 He stated, however, in his necropsy report, Exhibit
"M", that the cause of death of the deceased was "punctured wounds of the abdomen."
Miss Clarita Teh, travel agent of Skyways Travel Service located At Ongpin St., Sta. Cruz, Manila, declared that:
At about 4:00 p.m. of April 22, 1971, Benjamin Ong called her up by phone to ask for a reservation ticket for
Hongkong and Taipei. On the morning of April 23, 1971, Benjamin Ong went to her office but forgot to bring
along his papers including his Alien Certificate of Registration. In the afternoon of April 24, 1971, Benjamin
Ong went back to the office, this time with the pertinent papers plus P4,000 cash. She said that he changed his
destination from that of Hongkong and Taipei to that of Canada. However, he needed P7,000 for this purpose.
On April 29, 1971, Mrs. Ong got back the P4,000 because the latter said that her husband did not have enough
money. 9

Patrolman Gener S. Estrella, municipal policeman of Baliuag, Bulacan, followed next on the witness stand. He
stated that on April 25, 1971, he was on his tour of duty from 4:00 o'clock to 8:00 o'clock a.m. at the poblacion
when he received information that an unidentified car was parked in a gasoline station. He therefore sought
the company of Patrolman Ceferino Castro and they went to Barrio Tibag where they saw the locked Mustang
car parked in a gasoline station with plate number 16-02B, L-P.C., series '71. They reported the matter to their
head, Lt. Herminio Angeles. 10
Severo "Boy" Roslin, mechanic, gave the next testimony. He knew Fernando Tan since 1965. On April 29, 1971,
early morning, he saw Fernando Tan and another, introduced to him as Alfredo Hernandez, who happened to
be Benjamin Ong. Fernando Tan requested him to bring them to the airport and obtain airplane seats for the
Visayas. He accompanied them but they failed in this endeavor so that they proceeded to the pier. Likewise,
they were frustrated in getting a passage to the South. They ended up taking a train ride to Lucena City. Roslin
said that he went back to Manila that same day. On May 1, 1971, he and Fernando Tan went to the house of
Bienvenido Quintos near Abad Santos St. in Manila. They did not see him so that they had to come back at
noon. They then took him with them and, after passing by a laundry shop, they went to Singalong where they
picked up Benjamin Ong at around 7:00 p.m. Roslin claimed that they were using his Chevy car. They went to
Barrio Balugo, Oas, Albay and stayed at his parent's house. He, Quintos, and Tan stayed there for one half
month where they took themselves into swimming at the river. They left Benjamin Ong there. 11
Enrique Lacanilao, an NBI agent, testified that: Exhibits "N" and "O" are the voluntary written statements
signed respectively by Benjamin Ong on September 1, 1971 and by Bienvenido Quintos on September 3, 1971.
He said that Benjamin Ong pinpointed to them the place of burial at Barrio Makatipo, and Sy Yap was with
them during the examination. They found the mouth of the victim gagged and his hands tied. It was in a state
of decomposition. The victim's body was facing downward with the buttocks protruding up. The hands were
tied just above the chest while the feet were far apart. The buttocks were one foot from the surface while the
face was one and a half feet below facing down. There were no houses in the area which he believed was the
Araneta subdivision. He directed the reenactment of the crime. It appeared in their reenactment that
Fernando Tan and Bienvenido Quintos were the ones who grabbed Henry Chua from his Mustang car when
Benjamin Ong was urinating; that the victim's mouth was gagged while his hands were tied at the back; that
during the making of the ransom note. Tan was holding the gun while Quintos was focusing the flashlight; that
afterwards, Henry Chua's hands were tied again, this time in front; that he was stabbed after he was made to
lie down facing up; that Baldomero Ambrosio and Bienvenido Quintos pulled the victim to the hole that
Baldomero Ambrosio shovelled while Bienvenido Quintos held the flashlight; that at the time the ransom note
was being prepared Benjamin Ong was near the car, about 50 meters from the hole, so that his person did not
appear in the picture of the reenactment of this portion. Benjamin Ong was taken by the NBI into custody
from the 2nd PC Zone on September 1, 1971 at around 6:30 in the evening whereupon at 10:00 p.m. of that
same night, his written testimony was taken down up to past 12:00 midnight. He had a small bandage around
his wrists because of an attempted suicide on his part. Bienvenido Quintos, on the other hand, he said, was
arrested on September 3, 1971 and his extrajudicial statement was taken on the same day at around 7:00 or
8:00 p.m. 12
Diego H. Gutierrez, also an NBI agent, testified last for the prosecution. He identified Exhibits "Q" and "R" as
the voluntary supplementary extrajudicial statements respectively of Bienvenido Quintos and Benjamin Ong.
Gutierrez' testimony focused on Bienvenido Quintos' admission that the hole was dug and covered with fresh
twigs after the group's second meeting at the Barrio Fiesta Restaurant. 13
Brief Synopsis of the Testimony of
the Witnesses for the Defense

The defense started the presentation of their evidence with the testimony of Dr. Mariano P. Lara, retired Chief
Medico-Legal Officer of the Manila Police Department. His testimony centered on the matter of asphyxiation.
He said that asphyxiation as the possible cause of death was nowhere reflected on the necropsy report of Dr.
Ibarrola of the NBI; and that the death of the victim could have been due to shock as a result of the wounds
inflicted on him. 14
Rene Aguas, BIR examiner and first cousin of Bienvenido Quintos, then testified. He said that he went to the
NBI on September 8, 1971 in order to follow up the clearance papers of his deceased father. By coincidence,
he discovered that Quintos was detained there, so, he tried to get in touch with him. He gathered that Quintos
was "okay" although later on the latter revealed that he was hurt also. 15
Artemio R. Quintos, an engineer and father of accused Bienvenido Quintos, followed next. He said that he
visited his son on September 3, 1971 along with Atty. Bonicilla at around 7:00 p.m. at the NBI. The guard
refused to tell him where his son was so that the following day, September 4, he went back to the NBI in the
morning as well as in the evening. Still he did not find his son. On September 5, he delivered clothes for the
use of his son to the jailer, Benjamin Laforteza and was issued a receipt therefor. On September 6, he brought
a letter addressed to the Director of the NBI requesting him that he be allowed to see his son. It was only on
September 7, at 4:00 p.m. he claimed, that he met his son. He said that Bienvenido Quintos showed to him his
stomach with some bluish discoloration at the navel. On that day, he also received his son's dirty clothes and
found bloodstains on it. 16
Bienvenido Quintos then took the witness stand. He revealed that he came to know Fernando Tan when they
were still in Dagupan City long time ago. He said that he was invited on April 23, 1971 by Fernando Tan and
that they met at around 7:00 p.m. of that day. They proceeded to the Barrio Fiesta Restaurant in Caloocan City
where he was introduced to Benjamin Ong and Baldomero Ambrosio for the first time. At 9:00 p.m., they went
to Brown Derby Supper Club in Quezon City after which they proceeded to Amihan Nightclub at around 10:30
p.m. at Roxas Boulevard. He, Fernando Tan, and Baldomero Ambrosio were left in the car. Later, Benjamin
Ong went out of the Amihan Nightclub and took Fernando Tan with him. Fernando Tan returned and after a
while he was invited to the nearby Wigwam Nightclub. They hurriedly left the place and Fernando Tan took
the front seat of the Biscayne car while he took the back seat and followed a certain car. When that car
stopped, he saw Benjamin Ong vomitting. Fernando Tan and Baldomero Ambrosio went down and Fernando
Tan pulled out his gun. The victim was dragged and forced into the rear part of their car. The victim's hands
and feet were tied by Baldomero Ambrosio while the mouth was gagged by Fernando Tan with a flannel cloth.
Bienvenido Quintos made clear in his testimony that the victim was lying on his back inside the car so that his
face was up and his hands were on his breast. Fernando Tan then threatened him with his gun should he not
cooperate with them. At Barrio Makatipo, the victim laid down on the ground and Benjamin Ong got the
shovel and flashlight and gave them to Fernando Tan. The victim was made to walk a little distance and then
lie down again face up. Benjamin Ong gave to Fernando Tan an icepick who then gave it to Baldomero
Ambrosio and in turn gave it to him. He refused to stab the victim so that he returned it to Fernando Tan who
made the actual stabbing on the victim's chest twice. According to him, there was already a hole in that place.
He also claimed that Exhibit "O" was not a voluntary statement of his and that he was maltreated by more or
less 5 men. He said that he went to Oas, Albay on May 1, 1971 but that he was never contacted by the group
between April 24 and 30. At a certain point during the proceedings, the court suspended his testimony for
about 15 minutes after he complained of an aching head. 17
Benjamin Ong testified last for the defense. He related that Henry Chua was a friend and that they were
slightly related to each other. He felt that he was cheated because he was the only one who continuously lost
in their mahjong sessions. Henry Chua's group, including Ko King Pin, Go Bon Kin and Marcelo Tanlimco went
to his office and humiliated him there. On April 21, 1971, Henry Chua called him up by phone and invited him

to the Amihan Nightclub where he could settle the gambling debt. He admitted responsibility for Henry Chua's
death but emphasized that his purpose was merely to kill him. He added that nothing was taken from the body
of the victim. He asked the assistance of Fernando Tan and Baldomero Ambrosio who merely drove the car. He
denied the testimony of Patrolman Marciano Roque regarding his revelation of his plan. He believed that
Henry Chua knew that he had a grudge against him during that fatal day. He waited for them to dig and cover
the hole which took about one hour and a half after the stabbing. He attempted suicide by slashing his wrist 7
or 8 times while he was still in the custody of the P.C. at Camp Vicente Limin Laguna. He was also brought by
the NBI to the Salem Motel where he was investigated from 8:30 in the evening up to 5:30 in the morning of
the next day. Exhibit "N", his extrajudicial statement, was taken while he was groggy and very weak. He
likewise pinpointed the grave. At a certain juncture during Benjamin Ong's testimony, his counsel sought the
court's permission to exclude the public from the hearing because Ong's wife would testify on something that
would constitute a "great shame" to their family. Benjamin Ong, however, refused to go ahead with said
testimony. Benjamin Ong further claimed that he decided to kill Henry Chua on April 23, 1971. He was hurt by
the threatening words on the part of the victim which humiliated him and, as such, he was forced to resign
from his job. He went to the Skyways Travel Service only after the incident. He, however, changed his
destination and wanted to go instead to Canada and Europe. The reason why he was not able to pursue his
departure was because Sy Yap called him up and asked him about his brother's whereabouts so that he
seriously felt that the authorities were already after him. He left Manila on April 29, 1971 and went to Legaspi
City with Fernando Tan but found no acquaintance there so that they went back to Manila. It was Fernando
Tan who contacted Boy Roslin and Bienvenido Quintos after which they went to Oas, Albay and stayed there
for about two to three days. He hid himself on top of the mountain with an old man. Furthermore, he said that
Henry Chua was aware that he resented him. Benjamin Ong likewise denied having called Fernando Tan at
anytime, to come in with him to the nightclub. 18
Non-Conflicting Facts
Non-conflicting facts, as shown in the testimonies of the accused and witnesses in open court, and reiterated
in the respective briefs of the parties, are as follows: For more or less one year and a half prior to the dreadful
incident, the accused Benjamin Ong used to play mahjong with the deceased Henry Chua and the latter's
companions, Ko King Pin, Go Bon Kim (sic) and Marcelo Tanlimco. In those sessions he lost substantially that at
one time, it amounted to as much as P150,000.00. He suspected that he lost in unfair games and was
completely cheated by Henry Chua and the latter's companions, who made things worse by pressing him to
pay his gambling debt with a threat of bodily harm upon his person and that of his family. The deceased and
his companions embarrassed Benjamin Ong, incident after incident, especially when they went time and again
to Benjamin Ong's office at the Acme Shoes, Rubber and Plastic Corporation to confront him. The extent of his
embarrassment was made manifest by the fact that he had to resign from his job.
On April 21, 1971, Henry Chua repeated his demands for early settlement of his gambling debt and, as such,
invited Benjamin Ong to see him on April 23, 1971 at the Amihan Nightclub and bring with him the money
owed (P50,000.00). That same day that Henry Chua phoned Benjamin Ong, the latter contacted and sought
the assistance of Fernando Tan, a technical supervisor also of the Acme Firm. Benjamin Ong told Fernando Tan
about his grudge and plans against Henry Chua in order to avenge the embarrassment and humiliation he
suffered before the eyes of his subordinates.
Fernando Tan, who incidentally, owed Benjamin Ong his job 19, was very accommodating and he shared Ong's
feelings against Henry Chua. And, according to Benjamin Ong, Tan said "Why not just kill him." 20 Tan
immediately contacted Baldomero Ambrosia, Benjamin Ong's godson in marriage and a former Acme
employee, and likewise called upon his boyhood friend Bienvenido Quintos at the latter's office at the Robes
Francisco Realty Corporation.

On April 23, 1971, the four met at the Barrio Fiesta Restaurant in Caloocan City and finalized their plan to
liquidate Henry Chua. The group, riding in Benjamin Ong's Biscayne car, then went to the Amihan Nightclub
and arrived there at past nine o'clock in the evening. The two, Benjamin Ong and Henry Chuamet there and
had a couple of drinks. Benjamin Ong asked for patience and leniency with regard to his indebtedness and
ample time for its settlement.
From the Amihan the two went to the nearby Wigwam Nightclub where they tabled two hostesses Ligaya
Tamayo and Mickie Yaro and had some more drinks. At around 1:30 a.m. of the following day, April 24, 1971,
the duo left the place and rode in Henry's Mustang car. Fernando Tan, Bienvenido Quintos and Baldomero
Ambrosio riding in Ong's Biscayne car, followed the couple down Roxas Boulevard, then to Quiapo and
Quezon Boulevard Extension in Quezon City where, after passing the Sto. Domingo Church, they made a turn
towards a dirt road leading to Del Monte Avenue. When they reached a dark and secluded place, Benjamin
Ong urged Chua to stop the car in order to urinate, to which the latter obliged. It was at this time that the
Biscayne car arrived and stopped in front of the Mustang car whereupon Fernando Tan and Baldomero
Ambrosio alighted with a flashlight and pretended to be policemen. Fernando Tan poked his gun at Henry
Chua and pulled him down from his Mustang car with Baldomero Ambrosio giving him help. They then guided
and forced him inside the rear part of the Biscayne. He was made to lie, face up. His hands were tied and his
mouth gagged with a flannel cloth. Fernando Tan and Bienvenido Quintos then rested their feet on him.
Baldomero Ambrosio drove the Biscayne while Benjamin Ong drove the Mustang and followed them from
behind.
The group took Del Monte Avenue, Roosevelt Avenue, and then E. de los Santos Avenue, right to the North
Diversion Road, and right again to Novaliches until they reached a deserted place that looked like an idle
subdivision in Barrio Makatipo, Novaliches, Caloocan City. It was here that Henry Chua was stabbed twice with
an icepick, allegedly by Fernando Tan, and buried there with all his belongings with him consisting of a Piaget
watch, lighter, wallet containing P50 bills, driver's license, diner's card, etc.
After this, the group proceeded to Barrio Tibag, Baliuag, Bulacan with Benjamin Ong and Fernando Tan on the
Mustang. There they left it locked near a gasoline station. The foursome then regrouped in the Biscayne and
proceeded back to Caloocan City where they separated at about 7:00 o'clock in the morning.
On August 29, 1971, somewhere in Barrio Balugo, Oas, Albay, Benjamin Ong was arrested by operatives of the
2nd PC Zone and later turned over to the NBI. On the other hand, Bienvenido Quintos was apprehended on
September 2, 1971 in his residence at Tayabas St., in Sta. Cruz, Manila by members of the MPD and later
turned over to the NBI also.
Important Points of Conflict
The prosecution adds more to what the defense claims and conflicts appear in various instances. One such
instance was the testimony of the first prosecution witness, Patrolman Marciano Roque of Caloocan City, to
the effect that one month or so before the execution of the crime, Benjamin Ong solicited his help in
consummating his plan. Patrolman Roque testified that he tried his best to convince Benjamin Ong to desist
but to no avail. It was this witness who revealed Benjamin Ong's plan to ask for money from the rich family of
the deceased and, with said money, he, Roque, could already resign from his job should he participate. 21
In his testimony before the lower court, Benjamin Ong vehemently denied having revealed such plan to the
witness. 22 However, in his brief, accused Benjamin Ong claims that this testimony if ever there was such, does
not reveal his intention to kill Henry Chua that early. At most, he said, it was a mere "infantile thought of
wishing someone dead" and no more. 23

On this point, counsel for the accused Ong, argued as follows in their well-written brief:
Pat. Roque has not categorically asserted that he was a friend of Benjamin Ong. They came to
know each other when he, as a policeman, investigated theft and robbery cases on the
complaint of the Acme Shoe and Rubber Corporation where Benjamin Ong worked as Assistant
Manager. (pp. 5-7, t.s.n., Sept. 16, 1971) As so why Benjamin would reveal a plan to kidnap
another to a policeman, in the absence of a close and long association, is just too incredible to
merit belief. Pat. Roque said that Benjamin Ong "confided to me that I am the only person
whom he can trust so he further enumerated a detail that he intended to get a money and ask
for the money from the parents of the victim. (Id., p. 10) As to why he merited the trust of
Benjamin Ong, he did not say.
Pat. Marciano Roque said that he has no criminal record (Id., p. 42). He has not conveyed to
Benjamin Ong any information that he is a gun for hire (Id., p. 43), nor does he have that
reputation (Id., p. 43). If he were a criminal or he had a reputation as a professional killer, it is
perhaps possible for one in Benjamin Ong's position to have made the proposition to him.
Moreover, when he was cross-examined on the alleged intention to collect ransom, he
committed material contradictions such as to raise serious doubt on the veracity of his
testimony. He could not categorically assert whether the alleged intention of Benjamin Ong was
to kill the victim first and demand money from his parents after, or detain him first, and after
receiving ransom money, kill the victim.
ATTY. QUISUMBING:
Q Your testimony is as follows: that he told you that after demanding the money
to kill the man, you remember that?
A That was what he said.
Q In other words, this was not the way he told you, that he would grab the man
so that he could get the money by extortion or by ransom?
A He said that after having in his possession his intended victim he would
demand some money from his parents.
Q I will recall in your direct testimony ... you said that afterwards if he could get
the money he will kill the man, that was your first testimony, which is correct?
A He lost one hundred fifty thousand.
Q And he needed money and so he would demand money from the father or
parents of the victim, is that not your testimony?
A Yes, sir.
Q And afterwards he wanted to kill the man?
A No, sir.

Q And so what is your testimony now?

A After he got the man he will demand money from the parents or ransom
money from the parents of the victim.
Q So it is the other way. He first would kill the man and afterwards get the
money.
ATTY. DE SANTOS
The question is misleading.
COURT:
Answer.
WITNESS:
A No, sir, he said that after receiving the money the man may be killed.
Q Is that your testimony? That he will kill the victim or the victim may be killed?
A No, sir.
Q So which is which?
A He will kill the victim.
Q After getting the money?
A Yes sir. (pp. 38-41, t.s.n., Sept. 16, 1971)
Another point of conflict is the claim of the prosecution that a ransom note was indeed written and copied by
Henry Chua from a prepared note before the latter was ice-picked and buried. It appears that co-accused
Bienvenido Quintos stated in his supplementary extrajudicial statement before the NBI that:
Yes sir. After we have brought victim some meters away from the road, FERNANDO TAN
ordered victim to lie face down on the ground at the same (time) he untied victim and removed
the gag while his gun was still pointed at the head of Victim. Thereafter he ordered the victim
to copy a prepared ransom note in a piece of yellow paper. I saw the figure $50,000.00 because
I was holding then the flashlight. It was only after the ransom note was written and was
submitted to BENJAMIN ONG that FERNANDO TAN returned to us. 24
This is hearsay as against Benjamin Ong. And Ong vehemently denied the same in his testimony in open court
when he said upon questioning:
Q In this statement Exhibit "N", you admitted that Henry Chua was taken from
the Mustang car and transferred to the Viscain (sic) car and then brought to that

uninhabited place in Barrio Makatipo; what was your purpose in having the late
Henry Chua taken from his car and brought to Makatipo?
A My purpose was just to kill him, and there is (sic) not going to be any delay.
Q Was there any purpose of detaining him for sometime?
xxx xxx xxx
A No, there was no purpose to detain him any further. 25
Also, in his extrajudicial statement, he said:
Q When you hatched the plan to kill HENRY CHUA, did it ever occur to you to
demand or ask for any ransom money from the family of HENRY CHUA?
A Never, the question of ransom money never entered my mind? 26
Admittedly, no such genuine ransom note was received by the family of the deceased. Undoubtedly, its
presence in the crime could aggravate it, allowing the imposition of the capital punishment of death. 27
Also conflicting is the matter of Bienvenido Quintos' participation at the time Henry Chua was dragged into the
Biscayne car. The briefs of both parties tend to show that it was Fernando Tan and Baldomero Ambrosio who
pulled Henry Chua out of his Mustang car, forced him into the Biscayne car, tied and gagged him. 28 However,
Agent Lacanilao testified that in the reenactment of the crime it was shown that Bienvenido Quintos and
Fernando Tan were the ones who dragged Henry Chua out of his car. 29 Added to this is the claim of Benjamin
Ong that Baldomero Ambrosio merely drove the Biscayne for the
group. 30
The prosecution likewise claims in its brief that as early as a week before the incident, the group already chose
a site and prepared a hole where to bury Henry Chua; 31 that this group was in constant search of the victim
along the nightclub row in Roxas Boulevard during the succeeding evenings but failed to see him; 32 that a day
before the unfortunate evening, Ong contacted Miss Clarita Teh of the Skyways Travel Service at Ongpin St.,
Sta. Cruz, Manila, and asked for a booking for Hongkong and Taipei, and deposited P4,000.00
therein. 33 Similarly, it is alleged that on April 29, 1971, a few days after the incident, Tan and Ong contacted
Severo "Boy" Roslin, a long-time friend of Tan, to help them obtain airplane seats for the Visayas, but they
failed; 34 that they also proceeded to the pier to seek passage to the South on a boat but they were likewise
frustrated; 35 that instead, they took a train ride to Lucena City where Roslin left them and after which, they
continued to Legaspi City; 36 that finding no acquaintance there, they went back to Manila; 37 that on May 1,
1971, Tan again engaged Roslin's services and with the latter driving his car, they picked up Quintos and Ong
and went to Barrio Balugo, Oas, Albay and stayed there in the house of Roslin's parents; 38 that Ong was left
there while Roslin, Tan and Quintos went back to Manila. 39
A reenactment of the crime was had by Benjamin Ong, Bienvenido Quintos and some NBI and MPD agents
who played the role of their co-accused Fernando Tan and Baldomero Ambrosio. 40
The trial of this case in the lower court proceeded with commendable speed, although separate trials for the
two accused who had been arrested so far at that time were held upon the latter's request. Both entered a
plea of "not guilty" to the crime charged upon arraignment on September 4, 1971. However, in the case of

Benjamin Ong, he invoked the doctrine laid down in the case of People vs. Yturriaga 41 to the extent that the
prosecution should not nullify the mitigating circumstance of a plea of guilty, by counteracting it with
"unfounded allegations" of aggravating circumstances in the information. In other words, he admitted his guilt
in so far as the crime of simple murder was concerned. 42
Before this Court, the accused Benjamin Ong maintains that:
I
The Court a quo erred in finding the accused guilty of the crime of kidnapping with murder
because
(a) There was no evidence offered against the accused which would prove that the crime of
kidnapping was committed at all;
(b) Kidnapping cannot be complexed with murder;
(c) In those cases where the Supreme Court convicted the accused of Kidnapping with Murder,
there was shown an intention to deprive the victim of his liberty, and it was held that the
kidnapping was a necessary means to commit the crime of murder.
II
The court a quo erred in finding that the killing of the deceased was attended by the generic
aggravating circumstances of
(a) Abuse of superior strength;
(b) Nighttime;
(c) Uninhabited place;
(d) Abuse of confidence;
(e) Use of motor vehicle; and
(f) Cruelty.
and the qualifying circumstances of
(a) Alevosia
(b) Evident premeditation.
III
Assuming that the killing of Henry Chua was attended by the aggravating circumstance of
alevosia, the aggravating circumstance of abuse of superior strength and nighttime, if present,
are absorbed by treachery.

IV
The court a quo erred in not appreciating (a) plea of guilty, and (b) circumstances of a similar
nature or analogous to Article 13, paragraphs 1 to 9 of the Revised Penal Code as mitigating.
V
The court a quo erred in imposing the death penalty upon the accused.
VI
The court a quo erred in sentencing the accused to pay excessive damages. 43
For his part, the accused Bienvenido Quintos argues that:
1. The lower court erred in giving full weight and credit to the extrajudicial statement of the
defendant-appellant.
2. The lower court erred in not finding that there was no conspiracy between defendantappellant Bienvenido Quintos and the other accused.
3. The lower court erred in not acquitting defendant-appellant Bienvenido Quintos. 44
OUR RULING
The Evidence on the Alleged Writing of a
Ransom Note is Insufficient to Support
a Finding in Favor of the Prosecution:
First, Benjamin Ong vehemently denied asking for ransom.
In the extrajudicial statement of Benjamin Ong, he was asked this question: "Q. When you
hatched the plan to kill HENRY CHUA, did it ever occur to you to demand or ask for any ransom
money from the family of HENRY CHUA?" to which he answered: "Never, the question of
ransom money never entered my mind." (Question No. 5, Exh. N.)
Secondly, no ransom note was presented as evidence by the prosecution, nor did the latter show that a
demand for money was made upon the family of the victim. In the case of People vs. Manzanero, Jr. 45, We
held:
Furthermore, what could have been the motive for the kidnapping? According to the trial court,
the ransom money was needed by Manzanero to defray the huge expenses for the day-to-day
living of his lawful wife and seven children, and of his mistress and his five children by her, and
his repair shop that was earning only about P1,000 monthly could hardly meet the salaries of
his 16 workers and mechanics. But is it credible that Manzanero, "being the intelligent and
shrewd man that he appears to be," according to the trial court, could even have entertained
the illusion that the kidnapping that he was to perpetrate so clumsily and amateurishly would
he profitable to him, and he could escape from criminal prosecution? And what is strange is, if
the ransom note was indeed written why was it never presented in evidence? The claim that it
was lost is unbelievable. That ransom note, if it ever existed, was the most important piece of

evidence that could support the prosecution's theory that the kidnapping was for ransom.
Certainly, that piece of evidence should be kept and preserved. No plausible explanation was
given how that ransom note got lost. Neither the father nor mother of Floresita was made to
testify regarding the alleged ransom note.
Moreover, if ransom was the purpose of the kidnapping, why did Manzanero so easily, and
without apparent reason, give up his alleged criminal enterprise, when he could have pursued it
to a successful end? If there was really that ransom note, and that ransom note was sent the
most logical thing that Manzanero would have doing was to send instructions to Floresita's
family on how, when, and to whom the ransom money should be delivered. There is no evidence
that Manzanero ever made any follow up in order to get the ransom.
Furthermore, barely two days after the alleged kidnapping for ransom, Manzanero, without
having obtained even part of the ransom money, released Floresita. Would a kidnapper, as
Manzanero was alleged to be, readily release the victim without realizing his purpose?
(Emphasis Supplied)
Thirdly, the extrajudicial statement of accused Quintos wherein he stated that Fernando Tan ordered Henry
Chua to prepare a ransom note wherein he saw the figure $50,000.00, is tainted with serious doubts due to
the apparent maltreatment that Quintos received from the NBI and MPD men on September 3, 1971. 46 The
medical certificates and case record 47 issued by the Philippine General Hospital support the findings and
remark of the examining physician, Dr. Florencio Lucero, that in the person of accused Quintos, "intramascular
hematoma is evident." Besides, it is hearsay and therefore incompetent evidence against Benjamin Ong. And
in the reenactment, as testified to by NBI agent Lacanilao, while the ransom note was being prepared,
Benjamin Ong was about 50 meters away from the place where the note was being prepared.
Fourthly, although both parties in their briefs agree that the victim's hands were tied after he was shoved into
the rear floor of the Biscayne car, neither makes a categorical claim that the hands were tied at his back. In
fact Acting Solicitor General Hector C. Fule submits in his brief that the victim was made to lie down "face
up". 48 This leads to the conclusion that the rope around the victim's hands was never removed at any instance
up to the time that he was buried and exhumed. This discounts the idea that before the victim was made to
copy a prepared ransom note, the hands at his back were tied, and after the writing, his hands were again
tied, this time in front. Bienvenido Quintos in open court positively stated that the victim was made to lie on
his back inside the car and his bands tied on his breast. 49 The contrary evidence on this point are those of
Agent Lacanilao on the reenactment of the crime which was based on the extra-judicial statement of
Bienvenido Quintos. 50 However, as shown above, this statement is of dubious veracity.
Finally, that appellants never intended to make money out of the murder of Henry Chua, can be clearly
deduced from the fact that Chua was buried with everything in his person; and during the exhumation of his
body, his brother, Sy Yap Chua, identified the articles found in the body of the deceased, such as a Piaget
watch worth around P10,000.00 (Exh. B), a wallet together with money, with P50 bills and other
denominations.
In the light of the foregoing facts and circumstances, We cannot give any credence to the testimony of
Patrolman Roque that about the first week of April, 1971, Benjamin Ong confided to him his plan to get a man
who cheated him in gambling by as much as P150,000.00; that he would ask for money from the latter's
parents and after which he would kill the victim. And the facts brought out on cross examination of this
witness, which We have discussed earlier, show the incredibility of Ong confiding to Patrolman Roque his
criminal intention, particularly, his intention to ask money from the parents of the intended victim. As a

matter of fact, this witness, on cross examination, got lost, so to speak, on the point of whether according to
Ong, he would first kill the intended victim and demand money from his parents afterwards, or detain him first
and, after receiving a ransom money, kill the victim. Furthermore, from the first week of April, 1971, when this
intention was allegedly revealed by Ong to this witness, Ong could have changed his mind with respect to the
demand for money when the victim was actually taken and killed in the early morning of April, 1971.
There was no Kidnapping to Make the Crime a
Complex one of kidnapping the Murder
The extrajudicial confession (Exhibit N) of accused Benjamin Ong was affirmed and confirmed by him in open
court, thus:
Q I show you this document marked as Exhibit "N", statement of Benjamin Ong,
dated September 1, 1971, do you admit that this is your statement given to the
NBI?
A Yes, sir.
Q In this statement, Exhibit "N", you admitted that Henry Chua was taken from
the Mustang car and transferred to the Biscayne car and then brought to the
uninhabited place in Barrio Makatipo, what was your purpose in having the late
Henry Chua taken from his car and brought to Makatipo?
A My purpose was just to kill him, and there is not going to be any delay.
Q Was there any purpose of detaining him for sometime?
A No, there was no purpose to detain him any further.
And the evidence on record shows clearly that the deceased Henry Chua and Benjamin Ong left the Wigwam
Nightclub at Paraaque, at about 1:30 a.m. on April 24, 1971, in the car of Chua. Chua went voluntarily with
Ong, so much so that Chua himself drove his car. They were already in Del Monte Avenue, near the place in
Caloocan where Chua was killed and buried when they tied the hands of the deceased; that there were still
disagreement among the four accused on who would kill the deceased, until finally it was the co-accused
Fernando Tan who stabbed him with an icepick; and that the four accused, including two others, parted from
each other at 7:00 o'clock in the early morning of April 24, 1971 after they brought the car of Chua and left it
in Bo. Tibag, Baliuag, Bulacan.
In view of the foregoing facts and circumstances, We hold that there was no kidnapping, but only murder,
because the detention of Chua was only incidental to the main objective of murdering him and was not a
necessary means for the commission of the murder. From the Commentaries on the Revised Penal Code of
Justice Aquino, an acknowledged authority in criminal law, We find the following:
If the detention of the victim is only incidental to the main objective of murdering him, and is not
a necessary means for the commission of the murder, the crime is only murder and not the
complex one of murder through kidnapping. In the Guerrero case, the accused Huks brought to
the mountain two persons, father and son. The father was killed. The son, a 14-year old minor,
was above to escape on the second night following his detention. HELD: The accused were
guilty of murder as to the father and kidnapping as to the son.

In a 1902 case, the victim was taken from his house and then brought to an uninhabited place,
where he was murdered. HELD: The crime was murder only. There was no illegal detention
"since it does not appear that it was the purpose of the accused to commit this offense. The
primary objective was to kill the victim.
Where after the robbery committed in a house, three of its inmates were taken to a place near
the river one kilometer from the house, where they were killed, the kidnapping was deemed
absorbed in the crime of robbery with homicide.
Where the appellants kidnapped the victim at his house at Avilos Street, Manila and forded him
to ride in a car, but while the car was at the intersection of Libertad Street, Pasay City, the
victim jumped from the car and was shot to death, the crime was held to be murder only. (I
Revised Penal Code by Justice Aquino).
And We quote from the brief of appellant Ong:
The crime committed was only murder.
As early as the case of US vs. Nicolas Ancheta, et al. (No. 422, March 14, 1902; 1 Phil. 165), it
was held that where the accused kidnapped the victim, Ventura Quinto, took him to a place
called Radap and there by order of Nicolas Ancheta and Sebastian Dayag, the victim was killed,
the crime committed by them was murder. The acts committed by the accused do not
constitute the crime of illegal detention since the deceased was captured in his house and
taken by the accused to an uninhabited place selected by them for the purpose of killing them
there. (At p. 169). In the case ofUS vs. Teodoro de Leon (No. 522), March 10, 1902; 1 Phil. 163),
there was a demand for the payment of ransom. Nevertheless, the accused was found guilty
not of kidnapping with murder but of murder only. In this case, the deceased, Don Julio Banson
was forcibly removed from his house by Fabian Tolome, by order of Teodoro de Leon. He was
tortured and maltreated by the defendant until they arrived at a place called Bulutong. "Not
satisfied with torturing the deceased by himself he (Teodoro de Leon) ordered Tolome to give
him a blow upon the chest with a bolo. Don Julio begging for mercy, the defendant sent one of
his servants to the wife of the deceased to ask for $1,000.00 for his ransom. After the servant
had been sent all were led to a place called Cosme and upon arriving there the defendant
ordered Fabian and Tomome to conduct Don Julio to a ditch. At the same time the witness and
his three companions were given their liberty by the defendant, who remained with his two
companions and with Don Julio. Don Julio was never afterwards seen alive and his headless
body was found two or three days later in this same place." The accused was found guilty of the
crime of murder. Similarly, in the case of US vs. Emiliano Cajayon, et al. (No. 981, Oct. 8, 1903; 2
Phil. 570) twelve armed men kidnapped Tranquilino Torres and took him with them to the
barrio Maliig in the town of Lubang, Cavite province, where they killed him and buried him in a
hole dug for that purpose. It was held that the crime committed was murder. The pertinent
facts of the case are stated briefly as follows: About 20 armed men forced their way into the
house of Felix Marin, made him and his son prisoners, and carried them off with their arms tied
behind their backs. From there they proceeded to the house of the head man of the barrio
which they set on fire, and after capturing all the inmates, brought them to an estero called the
"Pasig" where they set all prisoners free, except Felix Marin and Isabel Beltran. These two they
took away in a boat and carried to a clump of manglares, at the edge of the estero, where Maris
still bound, was decapitated by one of the band with a single stroke of a bolo. Isabel Beltran
was set free. It will be noted that as to Isabel Beltran, the son of Felix Maris and the others, who

were made prisoners, there was deprivation of liberty. Nevertheless, the accused was found
guilty of murder, and not of kidnapping with murder. In the case of People vs. Magno Quinto, et
al. (L-1963, Dec. 22, 1948; 82 Phil. 467), it was established that Gregorio Caling was picked up at
his home in Floridablanca, Pampanga by a band of Hukbalahap on the night of December 9,
1945 and taken to the bank of the Gumain River, Gregorio Caling was investigated in
connection with his arms, maltreated, and subsequently killed. The judgment finding him guilty
of murder was affirmed. In the case of People vs. Juan Bulatao (L-2186, Jan. 29, 1949; 82 Phil.
743), one Jose Tan was forcibly taken by four armed men, among them the accused. The
following morning, the victim was found dead. It was also held that the accused was guilty of
murder. In the case of People vs. Eufracio Lansang (L-1187, Jan. 25, 1949; 82 Phil. 662) the
accused who participated in the kidnapping of the victim who was thereafter killed was found
guilty as an accomplice in the crime of murder. The case ofPeople vs. Alejandro Mendiola, et al.
(L-1642, Jan. 29, 1949; 82 Phil. 740) is more significant. In this case the Supreme Court said:
"The circumstances of the case, as proved by the evidence, lead us to the
conclusion that each and everyone of appellant took part with Taciano V. Rizal in
a conspiracy to kidnap as they did Teofilo Ampil and they are all equally
responsible for his killing, which was perpetrated in accordance with the plan of
the kidnappers. Once the kidnapping has been decided, the authors necessarily
had to entertain the killing as one of the means of accomplishing the purposes of
kidnapping.
"The three appellants were correctly found by the trial court guilty as authors of
the crime of murder ..."
In the case of People vs. Francisco Moreno (L-2335, March 7, 1950; 85 Phil. 731), several armed
men went to the house of Manuel Artates in barrio Pogoncile Aguilar, Pangasinan, and took him
to the Marapudo Mountains in Mangatarem where, he together with one Jose Jasmin, was
beheaded. Thereafter, "the defendant Francisco cautioned all the men who took part in or
witnessed the execution as well as the kidnapping of the two men not to reveal to anyone what
they had seen that night under penalty of punishment." The decision of the trial court finding
the appellant guilty of murder was affirmed. In the case of People vs. Alfredo Riparip, et al.(L2408, May 31, 1950; 85 Phil. 526), one Enrique Roldan was on December 27, 1944 kidnapped
and on the following day killed by certain guerilla units. The accused were found guilty of the
crime of murder. In People vs. Gaudencio Villapa, et al. (L-4259, April 30, 1952; 91 Phil. 189),
the deceased Federico Agonias was taken by the accused from the house of Guillermo Calixto in
barrio San Marcelino, Balugao, Pangasinan, and he was killed about 50 meters from the house.
They were found guilty of murder. In People vs. Emeterio Sarata, et al. (L-3544, April 18, 1952;
91 Phil. 111), it appeared that the four accused took the victim Sabiano Bucad from his house,
placed him in a banca and sailed towards the opposite shore of the Bato lake where the victim
was maltreated and killed by the accused. It was held that the crime committed was murder. In
the case of People vs. Eligio Camo and Buenaventura Manzanido (L-4741, May 7, 1952; 91 Phil.
240), the accused took the deceased Patricio Matundan from his house in the barrio of Conda
to the barrio of Talaan, both of the Municipality of Sariaya, Quezon. Upon reaching a place near
the mangroves, the group stopped, and accused Camo shot and killed the victim. The accused
were charged with the crime of murder with kidnapping. The Supreme Court held:
"The Solicitor-General next contends that the offense committed was the
complex crime of kidnapping with murder. Again, we are inclined to agree with

the trial court that the crime committed was simple murder. It is true that
Patricio was taken from his home but it was not for detaining him illegally for any
length of time or for the purpose of obtaining ransom for his release. In quite a
number of cases decided by this court where the victim was taken directly from
his house to the place where he was killed, kidnapping was not considered to
raise the offense to the category of a complex." (At p. 246)
In People vs. Nestorio Remalante (L-3512, Sept. 26, 1952; 92 Phil. 48), the accused with about
10 armed men met Mercedes Tobias, accompanied by Eusebio Gerilla and Lucia Pilo, on the
way to her home in the barrio of Guiarona, municipality of Dagami, Province of Leyte. The
accused took hold of Mercedes Tobias and dragged her, while at the same time striking her
with the butt of his rifle at different parts of her body. Eusebio Gerilla and Lucia Pilo saw
Mercedes being dragged towards the sitio of Sawahan. Hardly had they walked one kilometer
when they heard gun reports. The following day, Mercedes was found dead in Sawahan with
two gunshot wounds. Nestorio Remalante was charged and found guilty by the trail court of the
crime of kidnapping with murder. As to the charge of kidnapping, the Supreme Court held:
"There is no sufficient evidence of intention of kidnap because from the moment
Mercedes Tobias was held and dragged to the time when the gun reports were
heard nothing was done or said by the appellant or his confederates to show or
indicates that the captors intended to deprive her of her liberty for sometimes
and for some purposes and thereafter set her free or kill her. The interval was so
short as to negative the idea implied in kidnapping. Her short detention and illtreatment are included or form part of the perpetration of the crime." (at p. 51)
In the case of the People vs. Silvino Guerrero, et al., (L-9559, May 14, 1958; 103 Phil. 1136,
Unrep), the appellants were found guilty for the murder of Candido Disengano and the
kidnapping of Paulo Disengano. As tot he killing of Candido Disengano, it was held:
"As the court a quo has correctly held, appellants cannot be convicted of the
complex crime of kidnapping with murder under Article 48 of the Revised Penal
Code, for the reason the kidnapping was not a necessary means to commit the
murder. Candido was detained and brought to the mountains to be killed this
we have held may not be considered kidnapping with murder but mere murder.
(People v. Camo, G.R. No. L-4741, May 7, 1952; People vs. Remalante G.R. No. L3512, 48 O.G. 3881-3883; People v. Villapa, et al., G.R. No. L-4259, April 30,
1952) [13 Velayo's Digest (new series) 337; please see also 103 Phil. 1136]"
In People vs. Santos Umali, et al., (L-8860-70, January 23, 1957; 100 Phil. 1095 Unrep.), the
accused were charge and convicted by the trial court of kidnapping with murder. The evidence
shows that the deceased was killed in front of this house. The crime committed is only murder.
(13 Velayo's Digest [New Series], p. 340).
In People vs. Cenon Serrano alias Peping, et al., (L-7973, April 27, 1959; 105 Phil. 531), the
accused were charged with illegal detention with murder. After a drinking spree, the accused,
Cenon Serrano, suggested to the deceased Pablo Navarro to leave Bacolor, Pangpanga for San
Fernando for a good time, to which suggestion the latter agreed. While the victim together with
the accused Cenon Serrano and others were on the way to San Fernando, Cenon Serrano
suggested that they proceed to Angeles for a good time to which Pablo Navarro agreed. Upon

reaching barrio San Isidro, Cenon Serrano ordered the driver to proceed to barrio Dolores,
Bacolor, Pampanga where the deceased was detained and questioned at the stockade of the
civilian guards. That same afternoon, Pablo Navarro was taken out of the stockade and was
brought to sitio Castilang Malati where the deceased was shot and killed. The trial court found
the defendants guilty of the crime of murder. The decision was affirmed by the Supreme Court.
In People vs. Rosario Lao, et al. (L-10473, January 28, 1961; 1 SCRA 42), one Rosa Baltazar was
taken by two of the accused and killed beside a creek about 6 to 10 meters away from the
hatchery of the Lao poultry farm where she was staying. The trial court found them guilty of the
crime of kidnapping with murder. The Supreme Court held that "the crime committed is not
kidnapping with murder as stated in the title of the information but murder.".
In People vs. Felipe Sacayanan (L-15024-25, Dec. 31, 1960; 110 Phil. 588), a group of five armed
men forcibly took from their hour the victims Juan Galaraga and Victor Alamar to a place about
40 meters away from the house where they were shot. Juan Galaraga died. Victor Alamar was
seriously wounded. The trial court convicted the accused of the complex crime of kidnapping
with murder. The Supreme Court held that this was error. "Nothing was said or done by the
accused on his confederates to show that they intended to deprive their victims of their liberty
for sometime and for some purpose. There was no appreciable interval between their being
taken and their being shot from which kidnapping may be inferred." (See People v. Remalante,
92 Phil. 48; O.G. [9] 38881).
From the foregoing discussion, it seems clear that the weight of authority is in favor of the
proposition that where the victim was taken from one place to another, solely for the purpose
of killing him and not for detaining him for any length of time or for the purpose of obtaining
ransom for his release, the crime committed is murder, and not the complex crime of
kidnapping with murder. This ruling is entirely consistent with law. Art. 267 of the Revised Penal
Code penalizes a person "who shall kidnap or detain another," and the penalty becomes capital
"where the kidnapping or detention was committed for the purpose of extorting ransom from
the victim or any other person."
xxx xxx xxx
In the case at bar, the only evidence appreciable against the appellant Benjamin Ong regarding
the surrounding circumstances of Henry Chua's death are (1) the extrajudicial statement of
Benjamin Ong, (2) the testimony of Benjamin Ong during the trial, (3) the testimony of agent
Enrique Lacanilao about the reenactment of the crime. .
In the extrajudicial statement (Exhibit N) Benjamin Ong said that from the Wigwam nightclub,
Henry Chua and he rode on Henrys Mustang Car with the latter driving it. Fernando Tan and his
friend were in the Biscayne car of Benjamin Ong following the Mustang (Answer to Question
No. 40, p. 3, Exh,. N). At Araneta Avenue in Quezon City, Benjamin Ong requested Henry Chua
to stop the car to enable him to urinate. When Henry Chua complied, Fernando Tan and his
friend stopped in front of the Mustang car, pretending to be policeman, and ordered Henry
Chua to go with them to the police precinct. (Id., p. 5) Fernando Tan drove the Biscayne car,
while Benjamin Ong in henry Chua's car followed. From Araneta Avenue, Fernando Tan drove to
Novaliches where Henry Chua was killed, (Id.) It will be noted that no appreciable time elapsed
from arrival at Novaliches up to the time Henry Chua was killed, to indicate a separate intention
to deprived the latter of his liberty. When Benjamin Ong testified on September 22, 1971, he

affirmed his admission of responsibility for the death of Henry Chua (t.s.n.., Sept. 22, 1971, p.
26). He further testified as follows:
ATTY. QUISUMBING:
Q In this statement Exhibit "N", you admitted the Henry Chua was taken from
the mustang car and transferred to the Biscayne car and then brought to that
uninhabited place in having the late Henry Chua taken from his car and brought
to Makatipo?
A My purpose was just to kill him, and there is not going to be any delay.
Q Was there any purpose of detaining him for sometime?
xxx xxx xxx
A No, there was no purpose to detain him any further. (Id., pp. 27-28)
The narration of agent Enrique Lacanilao about the enactment of the crime showed that there
was no detention of the deceased Henry Chua for any length of time. He was killed and
promptly buried. (Please see pp. 43-47, t.s.n., Sept. 18, 1971). On the basis of the foregoing
evidence, the accused can hardly be held liable for kidnapping as well. It may not be amiss to
state that an accused is entitled to acquittal unless his guilt is shown by proof beyond
reasonable doubt. (Rule 133, Section 1, Revised Rules of Court). The evidence at hand hardly
satisfied the requirement of proof beyond reasonable doubts as to the charge of kidnapping.
The necessary result is that the accused can be held liable only for the killing of Henry Chua.
[Brief for the Appellant Benjamin Ong y Kho, pp. 43 to 56]
And the evidence on record clearly show that Henry Chua voluntarily went with Benjamin Ong when they left
the Wigwam Nightclub at Paraaque at about 1:30 a.m. on April 24, 1971, so much so that they rode in the car
of Chua and it was driven by Chua himself. The two drove straight down Roxas Boulevard, then to Quiapo, and
Quezon Boulevard Extension in Quezon City; and after passing Sto. Domingo Church, they made a turn
towards a dirt road leading to Del Monte Avenue. When they reached a dark and secluded place, Benjamin
Ong urged Chua to stop the car for the former to urinate to which the latter obliged. The Biscayne car where
Fernando Tan, Bienvenido Quintos and Baldomero Ambrosio were riding, stopped. Fernando Tan poked his
gun at Chua and pulled him from his Mustang car with Ambrosio giving help. His hands were tied his mouth
gagged with a flannel cloth, and he was placed in the Biscayne car. Tan and Bienvenido Quintos then rested
their feet on him. Then Ambrosio drove the Biscayne while Ong drove the Mustang. They proceeded towards
Barrio Makatipo, Novaliches, Caloocan City, where Henry Chua was stabbed to death and buried.
In other words, the time interval When the deceased Henry Chua was actually deprived of his liberty was short
(from Del Monte Avenue to Barrio Makatipo, Novaliches, Caloocan); and the same was only incidental to the
main objective of murdering him.
The only authority cited by the prosecution on this point is that of the case of Parulan vs. Rodas (88 Phil. 615).
But the ruling in the Parulan case cannot be applied to the case at bar, because in the Parulan case, the Court
found that the kidnapping was a necessary means for the purpose of extorting ransom from the victim and
killing him if the desired amount could not be given; and that the defendants had to kidnap or carry the victim
from Manila (where he was already deprived of his liberty, with Parulan poking his gun on the victim), to a

faraway and secluded place (a river in Bambang, Bulacan) in order to better secure the consent of the victim
through fear to pay the ransom, and kill him if he refuses to accede to their demands, as in fact he was killed
be Parulan because of his (victim's) refusal to the ransom.
We Hold that Both Appellants are Guilty
of Murder
The killing of the victim in this case was attended by several qualifying and aggravating circumstances. The
facts on record prove this, beyond reasonable doubt, even if we were to disregard the extrajudicial confession
of Benjamin Quintos which he denied and was allegedly extracted from him through force and intimidation.
Treachery (alevosia) qualified the killing to murder. Undisputed facts show that Henry Chua's hands were tied
and his mouth was gagged with a flannel cloth before he was stabbed twice with an icepick and buried in a
shallow grave near a creek. These facts portray well that the tied hands of the victim rendered him
defenseless and helpless thereby allowing the accused to commit the crime without risk at all to their
person. 51
The accused Benjamin Ong and Bienvenido Quintos, however, were quick to insist that this circumstance
should not be taken against them because they did not do the actual stabbing (which was done by Fernando
Tan). Easily, the weakness of this claim can be discerned. Conspiracy, connivance and unity of purpose and
intention among the accused were present throughout in the execution of this crime. The four participated in
the planning and execution of the crime and were at the scene in all its stages, They cannot escape the
consequence of any of their acts even if they deviated in some detail from what they originally thought of.
Conspiracy implies concert of design and not participation in every detail of execution. 52 Thus, treachery
should be considered against all persons participating or cooperating in the perpetration of the crime. 53
With regards to the aggravating circumstance of abuse of superior strength, the same should be deemed
absorbed in treachery. This position is itself supported by the Acting Solicitor General in his brief and is
sustained in a long line of decisions. 54
In the same vein, the accused would like the aggravating circumstance of nighttime (nocturnidad) to be
absorbed in treachery in that it forms part of the peculiar treacherous means and manner adopted to insure
the execution of the crime. The case of People vs. Berdida 55 provides the exception to this rule and is
applicable to the case at bar. It was there held that:
From the facts and evidence of record in this case, it is clear that appellants took advantage of
nighttime in committing the felonies charged. For it appears that to carry out a sentence they
had pronounced upon Antonio Maravilla and Federico Caalete for the death of one Pabling,
they had evidently chosen to execute their victims under the cover of darkness, at the dead of
night, when the neighborhood was asleep. Inasmuch as the treachery consisted in the fact that
the victims' hands were tied at the time they were beaten, the circumstance of nighttime is not
absorbed in treachery, but can be perceived distinctly therefrom, since the treachery rests
upon an independent factual basis. A special case therefore is present to which the rule that
nighttime is absorbed in treachery does not apply. 56
This aggravating circumstance was correctly appreciated by the lower court regardless of whether or not the
same was purposely and deliberately sought by the accused for it is clear that the darkness of the night
facilitated the commission of the crime and was taken advantage of by them. 57

The purposive selection of an uninhabited place (despoblado) is likewise clear from the evidence. The killing
was done in Barrio Makatipo, Novaliches, Caloocan City, an isolated place that resembled that of an
abandoned subdivision. The place was ideal not merely for burying the victim but also forkilling him for it was
a place where the possibility of the victim receiving some help from third persons was completely absent. The
accused sought the solitude of the place in order to better attain their purpose without interference, and to
secure themselves against detection and punishment. 58 As aptly stated in the "Sentence" of the lower court:
... The possibility of the victim calling for succor or assistance from any third person was ruled
out by the chosen site. Trees, lush vegetation and thick cogon grasses hide the place where the
crime was committed from the view of even a chance passerby. The choice of an uninhabited
place for the killing of Henry Chua, therefore, further aggravated the offense committed by the
accused. People vs. Curiano, L-15256-57, October 31, 1962; U.S. vs. Vitug, 17 Phil. 1). 59
In the case of the aggravating circumstance of abuse of confidence (abuso de confianza), it appears that the
lower court wrongly appreciated this circumstance. In order for this circumstance to obtain, it is necessary
that there be a relation of trust and confidence between the accused and the one against whom the crime
was committed, and that the accused made use of such relation to commit the crime. 60 It is essential too
that the confidence be a means of facilitating the commission of the crime, the culprit taking advantage of
the offended party's belief that the former would not abuse said confidence. 61
Nowhere in the records does it appear that Henry Chua reposed confidence upon the person of Benjamin
Ong. If any, Henry Chua was simply not afraid of Benjamin Ong, having told and bragged to the latter about
his violent exploits in the past and threatened him with bodily harm in case of failure to pay. 62 He knew that
he was far stronger than Benjamin Ong in terms of influence and money. He thought that Benjamin Ong
would fear him. The fact that Henry Chua invited Ong for nightclubbing that fatal evening and
accommodated him in his car on their way home from the nightclub does not mean that Henry Chua had
confidence in him. There was no special relation of confidence between them. He knew that Benjamin owed
him a substantial amount and that its settlement had long been overdue which fact irritated him very much.
Benjamin Ong and Henry Chua were together that night in the nightclub as well as in the car not because of
said confidence. It was simply because Benjamin Ong had some accounts to settle with him. Thus, in the case
of U.S. vs. Cruz, et al., 63 it was held that: .
... The fact of Cabaya having simulated friendship and desire for work, together with the
companions who went with him, and the fact that he received food and work immediately
upon being accepted by the Americans to work in the mines, is not, as stated in the judgment, a
degree of treachery, according to law, sufficient to constitute the aggravating circumstance of
abuse of confidence. It may however, be argued as unworthy conduct and ingratitude, but not
as abuse of confidence. It is necessary first to show what has been the confidence granted or
given in order to determine whether there was or was not an abuse of it, and in the present
case there is nothing to show what the confidence given or conceded to Cabaya was, that could
facilitate the commission of the crime.
Likewise, in the case of People vs. Brocal, 64 it was held that:
There is no abuse of confidence in attempted rape where on the day of the crime the accused
was in the company of the offended girl, not because of her confidence in him, but because
they were partners in a certain business.

More convincing this time is the aggravating circumstance of use of motor vehicle in the commission of the
crime. The Biscayne car of Benjamin Ong was used in trailing the victim's Mustang car from Wigwam Nightclub
up to the time that it was overtaken and blocked. It carried the victim on the way to the scene of the killing, it
contained at its baggage compartment the pick and shovel used in digging the grave; it was the fast means of
fleeing and absconding from the scene. Again, the motor vehicle facilitated the stark happening. It has been
held that the use of a motor vehicle is aggravating in murder where the said vehicle was used in transporting
the victim and the accused. 65
Cruelty (ensanamiento) as an aggravating circumstance, cannot be considered here. The brief of the Acting
Solicitor General agrees with that of the accused in denying the attendance of cruelty as an aggravating
circumstance. Indeed, as it appears from the record, the group intended merely to kill the victim, bury him,
and flee from the locale of the fearful crime. For cruelty to exist, it must be shown that the accused enjoyed
and delighted in making their victim suffer slowly and gradually, causing him unnecessary physical or moral
pain in the consummation of the criminal act. 66 Even granting that the victim died because of asphyxiation
when he was buried and not hemorrhage from stab wounds, as testified to by Dr. Ibarrola 67, which however,
has been contradicted by his own necropsy report which shows that the cause of death was the "punctured
wounds in the abdomen," and by Dr. Lara who testified that the two wounds could have produced death due
to shock, it appears that the victim's burial was not meant to make him suffer any longer but simply to conceal
his body and the crime itself.
Concededly, the qualifying circumstance of evident premeditation (premeditacion conocida) attended the
commission of the crime. What else can better portray this circumstance than the frequent meetings 68 of the
four accused at the Barrio Fiesta Restaurant in order to discuss, lay out the plan, and secure the different
paraphernalia consisting of the rope, icepick, flannel cloth, flashlight and shovel 69. Added to this is the careful
selection of an "ideal" site for the grissly happening 70. Similarly, the plan to go to Taipei and Hongkong
immediately after the incident pictures the presence of evident premeditation 71. The accused meditated and
tenaciously persisted in the accomplishment of the crime and were not prompted merely by the impulse of
the
moment. 72
The claim of the accused Benjamin Ong that the mitigating circumstance of plea of guilty should be appraised
in his favor, is hereby sustained. Indeed, the kidnapping portion of the crime cannot be appreciated here
beyond reasonable doubt as stated at the outset. Furthermore, it can be seen that the prosecution alleged so
many aggravating circumstances which should be absorbed in one or the other. To plead guilty to this
information naturally would be most unfair for the accused especially where the penalty would be the capital
punishment of death. The accused showed signs of remorsefulness upon his arrest when he cooperated with
the police authorities in the solution of the crime. As held in the case of People vs. Yturriaga 73,
... It only remains to consider briefly whether the defendant's plea of guilty in the form it was
entered constitutes a voluntary confession of guilt before the court as defined in the same
subsection of Article 13. We think it does.
Although the confession was qualified and introduction of evidence became necessary, the
qualification did not deny the defendant's guilt and, what is more, was subsequently fully
justified. It was not the defendant's fault that aggravating circumstances were erroneously
alleged in the information and mitigating circumstances omitted therefrom. If such qualification
could deprive the accused of the benefit of plea of guilty, then the prosecution could nullify this
mitigating circumstance be counteracting it with unfounded allegations of aggravating
circumstances.

We hold that the accused Benjamin Ong is likewise entitled to the mitigating circumstance that is analogous to
passion and obfuscation (Art. 13, par. 10, Revised Penal Code), based on the following facts stated in his brief:
a) Henry Chua and his companions went to the office of Benjamin Ong. In a loud voice, with angry gestures,
and in the presence of his subordinates and fellow employees, Henry Chua demanded payment, and
threatened bodily harm to him and his family.
b) Henry Chua went as far as to threaten the life of Benjamin Ong unless his obligation to Chua was paid. "If
you treasure your life, you better pay first."
c) Because of this incident, he, Benjamin Ong, "was humiliated."
d) His brother-in-law, Chua Pak told him that he was holding a very responsible position in the company and
so he should not be involved in any scandal.
e) He was "discredited and degraded in front of my brother-in-law." He was so embarrassed, he finally
tendered his resignation from the company.
f) Because of the threat of Henry Chua, the accused tried to get money from all sources but he was not
successful. The allotted time was so short. To relieve him of the pressure brought to bear upon him to pay his
gambling debt, he even thought of embezzling money belonging to the company in which he worked.
g) Because of his inability to raise money to be paid to Henry Chua, he became "deeply depressed." He felt: "I
was being turned into a criminal.
h) He begged Henry Chua to give him more time to raise the money. "Nagmamakaawa na ako sa kanya." This
was the night before Henry Chua was killed. If Henry Chua had granted him time "the whole plan to kill Henry
Chua might not materialize." But Henry Chua, while not relenting, but perhaps in utter contempt and disdain
of Benjamin Ong instead decided to transfer from Amihan to Wigwam because he wanted to be entertained
by a hostess. Henry Chua, it will be noted, was well known to Wigwam hostess, Ligaya Tamayo. Benjamin Ong
was seen by her for the first time that evening.
i) So while Chua enjoyed himself, Benjamin Ong was worried, as he pleaded with Henry Chua in vain for more
time to pay the obligation.
xxx xxx xxx
In People vs. Timoteo Olgado, et al (L-4406, March 31, 1952; 91 Phil. 908 Unrep.), the two accused were
provoked to commit two murders because of the indecent propositions made to the women by Jalumio and
his companions. For Mario Aninias, this is the mitigating circumstance of passion and obfuscation or
vindication of a grave offense to his wife. 74
In this regard, accused Benjamin Ong filed on October 10, 1973 before this Court a Petition for New Trial
and/or to Consider Case as Simple Murder. 75 In this petition, Benjamin Ong's wife, Athena Caw Siu Tee Ong,
alleged in an affidavit an incident when her husband refused to allow her to testify on during the regular trial
in the lower court. She said that Benjamin Ong suppressed it because it would be a source of "great shame" to
their family. Indeed, the records show how Benjamin Ong's counsel vainly convinced him to tell it but he
refused to do so. 76 Lately, Benjamin Ong has changed his mind and has consented to his wife's divulging the
story. Said story simply consists of Henry Chua's proposal of love and attempted rape allegedly committed on

the person of Athena on April 15, 1971 which Henry Chua asked in lieu of the payment of the gambling debt.
However, this matter is now academic because it would only tend to bolster the mitigating circumstance that
is analogous to passion and obfuscation, which we have just considered in favor of the accused Benjamin Ong.
IN VIEW OF ALL THE FOREGOING, the two accused-appellants Benjamin Ong y Kho and Bienvenido Quintos y
Sumaljag, are hereby found guilty beyond reasonable doubt of the crime of murder with the attendant
qualifying circumstance of treachery, and the aggravating circumstances of evident premeditation and use of
motor vehicle. These two circumstances are offset by the mitigating circumstances of plea of guilty and one
similar or analogous to passion or obfuscation which are appreciated in favor of accused-appellant Benjamin
Ong who is hereby sentenced to reclusion perpetua. Justices Teehankee and Makasiar, however, are of the
opinion that the crime committed by the two accused-appellants Benjamin Ong and Bienvenido Quintos is
kidnapping with murder and that the kidnapping was conceived for the purpose of extorting ransom, among
other motives. The members of the Court failed to arrive at a clear consensus on the existence of the
aggravating circumstances of "nighttime" and "uninhabited place" (which Justice Barredo, in his concurring
and dissenting opinion, concluded do not obtain in this case).
With respect to the accused-appellant Bienvenido Quintos, although no mitigating circumstance can be
appreciated in his favor, and he should therefore be sentenced to death, the Court hereby imposes upon him
the penalty of reclusion perpetua and not death, because of Our conclusion that his co-accused-appellant
Benjamin Ong should be sentenced only to reclusion perpetua, and because Justice Barredo, in his concurring
and dissenting opinion, even concluded that Bienvenido Quintos is guilty only as an accomplice; and hence, in
any event, We would not have the necessary ten votes for the imposition of the death penalty upon said
accused-appellant. .
As We hereby sentence the two accused-appellants Benjamin Ong and Bienvenido Quintos to suffer the
penalty of reclusion perpetua, We affirm that part of the decision under review, which sentenced them jointly
and severally to indemnify the heirs of the deceased Henry Chua in the amount of P1,000.00; to pay moral
damages in the amount of P50,000.00, and another P50,000.00 as exemplary damages; and to pay their
proportionate share of the costs, as We find no reason to disturb the same.
Makalintal, C.J., Teehankee, Makasiar, Antonio, Esguerra, Muoz Palma and Aquino, JJ., concur.
Castro, J., concurs in the result.
Fernando, J., took no part.

Separate Opinions

BARREDO, J., concurring and dissenting:

I fully concur in the finding in the main opinion of Mr. Justice Fernandez that herein accused-appellants
Benjamin Ong y Kho and Bienvenido Quintos y Sumaljag are guilty of the murder of Henry Chua. The
conspiracy among Ong, Quintos and their co-accused which resulted in the killing of their victim in the early
morning of April 24, 1971 appears proven in the record beyond reasonable doubt. So also the manner in which
the offense was committed. No less than Ong himself admits his responsibility for it. Indeed, I venture the
thought that this case could have been terminated earlier with the conviction of appellants were it not for the
unjustified insistence of the prosecution to exact from them more than what I consider, in the light of the
proven circumstances, to be demanded by justice and the public interest.
At the arraignment, Ong's counsel made it plain that even as his client was entering a plea of not guilty, he was
doing so with the intention to invoke the ruling of this Court in People v. Felipe Yturriaga, (86 Phil. 535),
meaning in effect that while Ong was willing to plead guilty to the murder charged in the information, he
could not do so only because the accusation has not only baselessly complexed it with kidnapping for ransom
but alleged several aggravating circumstances which he felt are unfounded, hence he would in due time ask
the court that he be credited with the mitigating circumstance of the plea of guilty, after he shall have
succeeded in showing that the prosecution is making the charge against them appear graver than what they
have actually committed.
As it turned out later and as borne by the record, outside of the confessions of the appellants and their
testimonies in open court, the prosecution had no independent evidence as to how the offense here in
question was committed. Indeed, from the very nature of the versions of the accused, which the People
accepts, regarding the manner in which Henry Chua died in their hands, the same would have remained
unknown to the investigating authorities and the fiscal, where it not for the voluntary revelations contained in
said confessions. Notably no portion of Ong's confession has been repudiated. Thus, it may be said that for the
government, this would have been no more than a plain case of murder qualified by treachery, which could be
deduced by the fact that when the corpse of Chua was disinterred, his hands were tied at the back and his
mouth was gagged, had not the accused gone further than admitting that they had killed their prey. Whatever
qualifications of the killing appear now in the information, must have been based by the Fiscal on his own
conclusions from the facts furnished by the appellants, not from the findings of any investigator. And
unfortunately for the accused, the Fiscal's conclusions, erroneous as they are, made the case against them
much graver than what it actually is.
The record shows that appellant Ong and the deceased Chua were close friends and even distant relatives. For
more than one year and a half they were often together with some other friends of Chua, namely Go Bun Kin,
Marcelo Tanlimco and Ko King Pin. They used to gamble play mahjong with the peculiarity that the
constant loser was Ong. His losses mounted to close to P150,000, and at the time of the killing of Chua, Ong
still owed him P50,000. Things came to a point that in the mind of Ong, he suspected that he was being
cheated and Chua was the culprit. On the other hand Chua was assiduous in demanding payment of his
winnings. So much so that about one month before the tragic occasion in question, Chua, accompanied by the
other players aforenamed, went to the offices of Acme Shoe and Rubber Products, where Ong was employed
as assistant manager, and demanded, shouting and gesturing in the process, payment of the P50,000. This
incident humiliated Ong because it happened in the presence of his superiors and subordinates; he had
pleaded with his visitors not to create any scandal, but they persisted; Ong lost face; his brother-in-law, the
owner of the firm admonished him that the responsible position he was occupying should be spared from such
"scandals". Things became harder and harder for Ong to bear he had to resign. Ko King Pin had subsequently
returned to that office two or three times, at the instance of Chua, on which occasions, he did not only
demand payment, he suggested to Ong that Chua was not a man to be angered; and Ong had every reason to
believe the veiled threat, since Chua used to brag to him about violent incidents where he was involved; in
fact, Chua told him once "You do not have money, why do you have to gamble? Are you not ashamed of

yourself? If you treasure your life, you better pay first." Thus cornered, Ong turned to all his sources of funds,
but even his usual lenders were no longer available.
On April 21, 1971, Chua called him by phone and in angry tones informed him that the check he (Ong) had
issued in payment of his gambling losses had been dishonored by the bank. Chua threatened to "turn over the
check to other people who will not be courteous anymore." And Chua demanded that they meet at Amihan
Night Club on April 23, 1971, and that Ong should bring the money with him. The chosen hour: 9:00 p. m.
Evidently facing a dead end in his effort to raise the necessary funds, the thought of doing away with the life of
Chua when they would meet that night recurred to his mind. He had been previously crying over the shoulders
of another close friend, his co-accused Fernando Tan, and the latter had broached the idea, "Why not just kill
him." In fact, Tan agreed to take part in the killing. As related in the People's brief:
... A week before April 23, 1971, Fernando Tan phoned his friend Bienvenido Quintos at the
latter's office at Robes Francisco Realty and made an appointment with him whereat they
discussed the plan of Ong to which Quintos agreed (tsn., p. 4, Sept. 22, 1971; Quintos' answers
to Nos. 7-9 in his second sworn statement [Exh. Q], rec., p. 61). Soon, the trio (Ong, Tan and
Quintos) met at the Barrio Fiesta Restaurant at Caloocan City and after eating dinner, they left
and bought a shovel and pick at hardware store somewhere at Rizal Avenue Extension Caloocan
City (Ans. to Q. No. 13, Exh. Q. rec., p. 62). From there, and using Ong's car, the trio proceeded
to Novaliches to look for a site where to bury their intended victim. Ong selected a particular
place, saying "Ito ang mabuti", after which they returned to Caloocan City and parted ways
(Ans. to Q. No. 16, Exh. Q, rec., p. 62). On the following evening, the trio met again at the Barrio
Fiesta Restaurant and at this meeting, they were joined by Baldomero Ambrosia alias "Val", a
former Acme employee and a godson of Ong by marriage (tsn, p. 31, Sept. 22, 1971; Exh. R,
rec., p. 65). After eating dinner, they all rode on Ong's car and proceeded to the site in
Novaliches, selected the previous day by Ong (Ans. to Q. No. 17, Exh. Q, rec., p. 62). Upon
reaching the site, Ong opened the back compartment of his car and instructed Val to get the
shovel and pick. The four walked for a distance of about thirty meters from the road, after
which Val was instructed to dig a hole. With Quintos holding a flashlight, Val dug the hole while
Tan and Ong watched the digging, after which they covered the hole with fresh twigs. Thence
they returned to Caloocan City where they separated (Ans. to Q. No. 18, Exh. Q, rec., 62).
Regarding what happened immediately before, during and after the meeting of Chua and Ong at Amihan at
9:00 p.m., April, 23, 1971, I find the following conclusions of the trial court to be supported by the evidence,
except as to (1) one aspect of that meeting at Amihan, for whereas the decision simply says that Chua and Ong
met, it omits the pivotal relevant point that it was the deceased who fixed the time and place of said meeting
and (2) the existence of the alleged ransom note, which does not appear to be clearly established, as will be
discussed later:
On April 20 or 21, 1971, Benjamin talked to Henry Chua over the telephone. They agreed to
meet at the Amihan Nightclub on Roxas Club Blvd., Paraaque, Rizal, at around 9:00 o'clock in
the evening of Friday April 23, 1971. The stage was set for the carrying out of his plans, so on
April 22, 1971, Benjamin Ong contacted Clarita Teh of the Skyways Travel Agency and
requested not only booking but also the preparation of his travel papers, destination Taipei.
Obviously, this was a necessary step to insure his escape immediately after the execution of his
plan to kidnap and murder Henry Chua.

At 7:30 o'clock, in the evening of April 23, 1971, Benjamin Ong met Fernando Tan, "Val" and
Bienvenido Quintos at the Barrio Fiesta in Caloocan City. There the plans of the group were
finalized and after dinner they proceeded to Amihan Nightclub.
Benjamin Ong joined Henry Chua inside the Club while Fernando Tan, Val and Quintos
remained in Ong's Biscayne car and waited outside the club. A short while later, Benjamin Ong
came out of the Amihan Nightclub and told Fernando Tan to come inside. Obviously, this was a
necessary step to enable Fernando Tan to know the identity of the intended victim. Quintos
and Val remained in the car. Sometime later, Fernando Tan came out of the Amihan Nightclub
and asked Quintos to go with him to the Wigwam Nightclub which is next door to the Amihan
Nightclub.
After plying Henry Chua with brandy inside the Amihan Nightclub, Benjamin Ong, on the
pretext that the hostess of his acquaintance was not there, urged the former to move to the
Wigwam Nightclub. There they tabled two hostesses known to them, one of them being Ligaya
Tamayo. Ong continued to ply Henry Chua with brandy. In the meanwhile, Fernando Tan and
Quintos took a separate table inside the Wigwam Nightclub so they could watch Benjamin Ong
and Henry Chua when they start to leave the place. At around 1:30 a.m., April 24, 1971, Henry
Chua and Benjamin Ong left the Wigwam Nightclub and got into Henry Chua's Mustang car,
Fernando Tan and Bienvenido Quintos followed and got into Ong's Biscayne car, and when the
Chua car passed by, they followed, with "Val" driving the Biscayne.
The Chua car left the Wigwam Nightclub in Paraaque, Rizal, proceeded through Manila,
passing Quezon Bridge, then to Quezon City passing Quezon Boulevard Extension, passed Sto.
Domingo Church, where it made a U-turn and then turned right on a dirt road leading to Del
Monte Avenue. Reaching a paved portion of the road leading to Del Monte Avenue, Ong told
Chua to stop the car on the pretext of wanting to urinate. As soon as Ong got out of the parked
Chua car, Val parked the Biscayne car ahead of the Mustang, blocking its way, and Fernando
Tan and Val alighted. They proceeded to the parked Mustang car where Fernando Tan poked a
gun at Henry Chua and Val opened the door at the driver's side and dragged Henry Chua from
the Mustang car and forced him into the back seat of the Biscayne car. Henry Chua was then
forced to lie down face up on the floor of the car while his hands and feet were bound by
Fernando Tan with pieces of rope and a flannel cloth tied over his mouth to gag him. Benjamin
Onggot be behind the wheel of the Mustang car and followed the Biscayne car which had
started to move towards Novaliches.
Arriving at the site previously chosen in Barrio Makatipo, both cars stopped. Fernando Tan and
Benjamin Ong, having alighted from the cars they were riding in, talked, while Val pulled Henry
Chua out of the Biscayne car. Ong then took a shovel and a flashlight from the trunk
compartment at the back of the Biscayne car. He handed the shovel to Quintos. The rope
binding Henry Chua's feet was untied, but his hands remained tied and his mouth was still
gagged as the accused led him to the site where a hole had previously been dug out.
At that place, Henry Chua's hands and mouth were untied and ungagged, although Fernando
Tan held his gun pointed at Henry Chua's head. He was then ordered to copy a prepared
ransom note directing that $50,000. ransom money be paid. Henry Chua complied, but pleaded
"Huwag ninyo akong patayin, ha?" to which Fernando Tan answered, "Pabayaan mo, makauuwi
ka." Henry Chua's hands were again tied in front of him and the gag over his mouth tied again.
He was made to lie on the ground, face up. Benjamin Ong then handed the icepick to Fernando

Tan and said "Patayin na iyan!" Fernando Tan handed the icepick to Val, who in turn, handed it
to Quintos. But Quintos, obviously did not have the nerve to kill Chua, justifying his inaction by
saying he had no grudge against Chua. Fernando Tan then grabbed the icepick uttering the
words, "Hindi ka pa pala puede." The flashlight was then handed by Tan to Val who focused it
on Henry Chua's breast. Fernando Tan then stabbed Henry Chua twice with the icepick. The
body of their victim was then to dragged to the prepared hole, Val pulling the body while
Quintos was holding the legs, and dumped in a crouching position, face down, with the tied
hands held in front of his breast. The hole was then covered with soil, then the mound stomped
on by Benjamin Ong.
Benjamin Ong and Fernando Tan boarded the Mustang while Quintos and Val rode in the
Biscayne car. With Ong driving the Mustang and Val the Biscayne they proceeded to Barrio
Tibag Baliuag Bulacan, where the Mustang car was locked and abandoned near a Shell gasoline
station. All four then returned to Manila in Ong's Biscayne car. They parted from each other's
company at around 7:00 o'clock in the morning of April 24, 1971. On the following days, both
Benjamin Ong and Bienvenido Quintos reported to their respective place of work as if nothing
sinister had taken place. (Appellant's Brief [Ong], pp. XIV-XIX)
In connection with the meeting at Amihan, the only evidence on record as to how the place and time thereof
were fixed is the following portion of Exhibit N, the extrajudicial confession of Ong:
30. Q. What did you do after you were embarrassed and degraded as you mentioned?
A. Sometime on April 20 or 21, 1971, HENRY CHUA called me up by phone at my office and it
was at this time that I decided to kill him. He asked me when I could make settlement of my
obligations and he asked me if I am available on Friday, April 23, 1971 to see him at AMIHAN
CLUB at Roxas Blvd. and I said yes, promising that I would pay him. (Appellant's brief [Ong], No.
30, p. 22)
It was Chua then who set such place and time. As will be elucidated later, this particular detail is decisive in
determining whether or not appellants purposely sought the cover of the night's darkness in committing the
crime for which the State is demanding atonement with their own lives.
With respect to the supposed ransom note, I must make it clear at the outset that in my view of the case at
bar, it is of no significant consequence whether or not there was in fact such a note. But if it could be in any
sense material, I would subscribe to the view in the main opinion that its non-production considerably impairs
credence as to the possibility of its actual existence. And as I will explain at a more appropriate place in the
subsequent discussion, the other related circumstances extant in the record tend to belie, in my opinion, that
anything about ransom was ever taken up on the occasion in question.
Subject to the foregoing reservations, I would say that the basic conclusions of fact of the trial court find
ample support in the evidence before it. Indeed, in the light of said facts, it is beyond reasonable doubt that
appellants Ong and Quintos should be held criminally responsible for the killing of Henry Chua. And from what
I gather from appellant Ong's position since the time he was investigated by the agents of the National Bureau
of Investigation, he is not shirking that responsibility.
Insofar as appellant Quintos is concerned, while he admits having been with his co-accused when Chua's life
was taken, he claims that his part in the whole affair was either innocuous or impelled by uncontrollable fear.
At least one damaging point, however, is quite clear in his own testimony. He admits having been handed the

ice pick for him to kill Chua, and although he claims he refused to use it, he has not proven that he exerted an
effort to dissuade his companions from completing and accomplishing their criminal design. At any rate, the
discussion and finding in the main opinion that Quintos was one of the conspirators has sufficient basis in the
record to warrant his conviction, and I concur therein, even as I do not share the conclusion, as I will presently
point out, that he and Ong deserve the extreme penalty of death.
His Honor held that the crime committed by appellants is kidnapping for ransom with murder, an offense
ineludably punished precisely with death. Even for kidnapping for ransom alone, such is the enexorable
penalty provided by law. (Article 267, Revised Penal Code, as amended by Republic Act 1084.) The pertinent
provision reads thus:
The penalty shall be death where the kidnapping or detention was committed for the purpose
of extorting ransom from the victim or an other person, even if none of the circumstances
above-mentioned were present in the commission of the offense.
However, I concur fully in the main opinion that such holding is completely erroneous and cannot be upheld.
As Mr. Justice Fernandez very well point out, it is basic and elementary that the essence of the crime of
kidnapping under Article 267 of the Revised Penal Code is detention. Indeed, from the very beginning of
Philippine jurisprudence in Volume I of the Philippine Reports, the Supreme Court already took the view that
taking the victim from his home to a suitable place and then and there killing him evinces no shade of illegal
detention, since it would not appear that the intention is to deprive him of his liberty, but rather of his life.
(United States vs. Ancheta, 1 Phil. 165, 169.) There has been no ruling otherwise since then.
It is to my mind incorrect to say that in the two Parulan cases, Parulan vs. Rodas, 78 Phil. 855 and People vs.
Parulan, 88 Phil. 615, this Court held that the offense of kidnapping or illegal detention can be complexed with
the crime of murder pursuant to Article 48 of the Revised Penal Code when it is shown that the purpose of the
apprehension and detention of the victim is to take him to the place of killing, as where the kidnapping is
resorted to as a means for his killing, thereby overruling the doctrine in Ancheta, supra. I have read and
studied both Parulan decisions, but I cannot find therein anything along the legal proposition suggested. This is
what appears in Justice Feria's opinion in the first case:
From a cursory examination of the foregoing it clearly appears that the crime charged is
kidnapping and murder and the former was committed by the defendants as a necessary means
"for the purpose of extorting ransom from the victim or killing him if the desired amount of
money could not be given," that is, that the defendants had to kidnap or carry the victim to a
faraway and secluded place in order to better secure the consent of the victim through fear to
pay the ransom, and kill him with certain sense of impunity and certainty that no other person
may witness the commission of the offense by the defendants if the victim refuses to accede to
their demand, and that in fact he was killed by the defendants because of his refusal to pay the
ransom.
And this is what Justice Pablo said in the second case:
La contencion de due el Juzgado de Primera Instancia de Manila no tiene jurisdiccion sobre la
causa, ya esta resuelta por este tribunal en Parulan contra Rodas, 78 Phil., 855. En dicho recurso
el acusado impugno la jurisdiccion del Juzgado de Primera Instancia de Manila, alegando que el
secuestro y asesinato son dos distintos crimenes; que el asesinato se cometio en Bulacan y, por
tanto, el juzgado de esta provincial es la que tenia jurisdiccion exclusive sobre la causa. Este

Tribunal dedaro que el crimen denunciado es el delito complejo de secuestro conase asesinato;
que el secuestro se realizo como medio necesario para arrancar dinero de la victima o matarle
si la cantidad pedida no lo diese; que cualquier juzgado de primera instancia en que se haya
cometido cualquier elemento esencial de dicho crimen complejo tiene jurisdiccion; y se denego
la solicitud.
What is to me clear from these quotations is that it is the element of demand for ransom and subsequent
frustration in getting the same existing in Parulan that makes the difference between it and Ancheta, wherein
said element was absent. Which is understandable, because when the purpose of the kidnapping is ransom,
the offender would necessarily have to detain his victim while waiting for the result of the demand, and kill
him only in case such result is negative. In other words, in Parulan the kidnapping was definitely for ransom
and not necessarily to kill, whereas in the instant case it was solely to kill. When the sole purpose of the
kidnapping is to kill, I maintain that the Ancheta ruling still holds, precisely because in such a case the intent to
commit detention which is the essence of kidnapping is absent. Strikingly parallel, indeed, to the
circumstances of the case at bar were those of Ancheta. Said the Court therein:
Furthermore, in view of the nature and circumstances of the murder for which this cause is prosecuted it is
evident that the fact that the deceased was captured in his house and taken by the defendants to an
uninhabited place selected by them for the purpose of killing him there, does not constitute the crime of
illegal detention, since it does not appear that it was the purpose of the accused to commit this offense. On
the contrary they seized the unfortunate Quinto in his house with the sole object of carrying him away to a
suitable place, which they subsequently pointed out to the authorities, and of there murdering him.
A careful review of the evidence in this case fails to show any indication that Ong and his co-accused ever
entertained the thought of detaining the deceased for ransom. It is true a certain Patrolman Marciano Roque
of the Caloocan City Police testified regarding alleged conversations he had with Ong wherein the latter
supposedly revealed to him a plan to kidnap Chua for ransom. Let us hearken in this connection to the findings
of the trial judge himself:
... The first witness presented was Pat. Marciano Roque of the Caloocan Police Department. He
testified to having known Benjamin Ong for more than five years as the latter was the Assistant
Manager of the Acme Shoe, Rubber and Plastic Corporation, a company situated in Caloocan
City owned by Chua Pak Ong's brother-in-law. Sometime during the first week of April, 1971, he
went to the Acme office to get a pair of rubber sandals and was there met by Benjamin Ong
who invited him to ride in his car and there revealed his plan to kidnap a person whom he
believed had cheated him in a gambling game. The witness dissuaded the accused Benjamin
Ong from carrying out his plan but the latter persisted and reiterated his request for assistance
during the several meetings which followed. On one occasion, according to this witness, he was
taken to Barrio Makatipo, Caloocan City, by Benjamin Ong and shown the place where said
accused intended to bury the person he was planning to kidnap and kill. Benjamin Ong tried to
convince the witness to join in his plan to effect a kidnapping by assuring him that he already
had a completed plan, that a godson of his would also help out, and that the father of the
intended victim was very rich and that from the ransom money they would receive from the
father of the victim, the witness could already leave the police force and retire. Witness also
testified that he tried his best to avoid Ben Ong, and at their last meeting urged him to forget
the whole thing. Although he informed Capt. Duenas and Lt. Manabat of the Caloocan Police,
and still later Chief of Police Celestino Rosca of Benjamin Ong's plan, he did not know the
identity of the intended victim until the first week of May, 1971 when he was called by Chief of
Police Celestino Rosca who informed him that a Chinaman by the name of Henry Chua was

missing and that Benjamin Ong was being sought be the NBI. ... (Pp. III-IV, Appellant's Brief
[Ong].)
One does not have to tarry for more than a moment to see how preposterous Patrolman Roque's testimony is.
What immediately strikes me is that allegedly Ong did not only confess to him his diabolical plan to kidnap
Chua for ransom, Ong actually invited Roque to join in the commission of such capital offense. If such
testimony were in any way true, I am sure the present case would not have come to be at all Chua would
not have been killed and Ong would probably have long been in jail for a non-capital offense initiated by no
less than the Caloocan City Police. For I cannot conceive of a faithful and loyal policeman to whom a proposal
to commit such a heinous crime can be made without his taking corresponding action in the public interest,
just as it is for me difficult to imagine how Ong or any man could have had the courage and audacity to even
merely suggest such an idea to a member of the police, there being nothing in the evidence showing that such
a close and intimate relation existed between them to permit that a matter so strictly personal and
confidential in nature be discussed by them just like that. The thing becomes more absurd and ludicrous when
it is considered that Patrolman Roque added that he had sort of reported Ong's proposal earlier to his
superiors Captain Duenas and Lieutenant Manabat and later to the Chief of Police himself, Celestino Rosca.
One has to be completely naive to believe that these high officers of the Caloocan City Police just laughed off
the report of Patrolman Roque merely because allegedly Ong did not reveal to him the name of the intended
victim, even if it was already apparent to Roque that Ong was really serious and persistent in his proposal. The
Court has consistently refused to give any credit to testimonies that on their faces do not accord with the
ordinary experience of man and the usual course of official conduct, and surely, in my opinion, We must reject
this one for being obviously a pure canard. Indeed, if only so that the police in this country are made aware of
the necessity for all of them to always act consistently with the demands of public interest on occasions
similar to the present one, wherein a policeman either imposes upon the good faith of the court by telling it a
cock-and-bull story or reacts to an invitation for him to take part in the commission of a capital offense as if it
were nothing more casual than a personal and private matter to him, I feel that the record of the testimony in
question should be brought to the attention of the National Police Commission.
But even if there were a way of considering the said testimony as true, still, the fact would be that whatever
proposition it was that Ong made to Patrolman Roque, nowhere in the record has it been demonstrated that
Ong ever carried out the same either alone or together with his co-accused in this case, much less with the
assistance of Roque which admittedly was never given. There is neither testimony of any witness nor
statement of any of the accused indicating any link between Tan's alleged act of making Chua copy a ransom
note and sign it and Ong. If such a link could be a matter of inference or something covered by the rule that
the act of any of the conspirators constitutive of an inculpatory element or circumstance of the offense is the
act of all, the conspiracy being proven, this legal conjectures would be patently belied by the undisputed proof
to the effect that, as found by His Honor, after Chua had prepared and signed the supposed ransom note, and
even as he was pleading "Huwag ninyo akong patayin, ha?" and Fernando Tan was assuring him "Pabayaan
mo, makauuwi ka", his (Chua's) "hands were tied again and the gag over his mouth tied again. He was made to
lie on the ground face up. Benjamin Ong then handed the ice-pick to Fernando Tan and said "Patayin na iyan"
", and without further loss of time, it was so done. In other words, even assuming arguendo that Ong had ever
made a proposition to Patrolman Roque to join him in a kidnapping for ransom, the fact is that idea never
passed the stage of a mere proposal, hence is not punishable under Article 8 of the Revised Penal Code, and
what actually was committed by Ong and his companions was no more than murder, the ransom idea, if it was
ever thought of, having been abandoned completely at least insofar as Ong was concerned. The prosecution
did not present any evidence, presumably because there was none, that anybody, not to speak of the
members of the Chua family, one of whom, Sy Giap, a brother of the deceased, testified at the trial, ever
received a demand for ransom from any of the accused.

The following, therefore, rule out the possibility that there was an element of ransom in the taking of Chua to
the place of his killing: (1) The evidence of the prosecution that such an idea was in the mind of Ong days
before April 24, 1971 is utterly incredible, being unnatural and contrary to human experience and official
comportment of the most simple minded policeman (2) the non-production of the alleged ransom note has
not been explained at all; (3) indisputably no demand was ever made upon anyone for the payment of any
ransom; and (4) the trial court found, and this finding is firmly borne by the evidence presented by both
parties at the hearing, that Ong evidently paid no heed to the supposed preparation or copying and signing of
the alleged ransom note, as on the spot he resolutely, impatiently and curtly directed his co-accused, "Patayin
na iyan", without regard to the alleged ransom note, which, to be sure, does not appear to have been talked
about then by the accused at all.
In view of the foregoing, I am totally convinced that the offense committed by the accused in the instant case
cannot be more than murder; certainly, it was not kidnapping for ransom with murder. Thus, the only
question that remains to be determined is, were there any circumstances attending the commission of the
offense or related thereto that could legally be considered as mitigating or aggravating the same for purposes
of imposing the appropriate penalty?
According to the information, the murder in question was qualified by treachery and that it was attended by
the following generic aggravating circumstances: (1) evident premeditation; (2) grave abuse of confidence; (3)
nighttime; (4) use of motor vehicle; (5) use of superior strength and (6) cruelty. But as earlier stated, at the
arraignment, appellant Ong offered in effect to plead guilty to murder, instead of to kidnapping for ransom
with murder, and challenged the propriety of the aggravating circumstances thus alleged. In convicting the
appellants of kidnapping for ransom with murder, the trial court appreciated against them the aggravating
circumstances of nighttime, despoblado or uninhabited place, abuse of confidence, use of motor vehicle and
cruelty. Additionally, in His Honor's own words, it was his finding that "the killing of the victim was qualified by
evident premeditation. ... The killing of Henry Chua was, therefore, also qualified be the circumstance of
treachery or alevosia", hence, neither of these two circumstances was considered as generic aggravating. And
with respect to the submission of appellant Ong that applying the doctrine in Yturriaga, supra, he should be
credited with the mitigating circumstance of plea of guilty, the learned trial judge disposed of the contention
as follows:
In a manifestation filed before entering trial, the accused Benjamin Ong reiterated the fact that
he entered a plea of "not guilty" to the information as read to him, but invoked the doctrine in
the case ofPeople vs. Yturriaga, 86 Phil. 534, 539, that the prosecution may not nullify the
mitigating circumstance of a plea of guilty and deprive the accused of the benefit of such a plea,
by counter-acting it with unfounded allegations' of aggravating circumstances in the
information.
This Court, however, believes that the Yturriaga doctrine cannot be invoked in this case in view
of the conclusion reached that the crime committed was the complex offense of kidnapping
with murder for which the law prescribes the indivisible penalty of death. Furthermore, having
reached the conclusion that five aggravating circumstances attended the commission of the
crime, even if the plea of guilty to simple murder were to be credited in favor of the accused
Benjamin Ong, the same will not suffice to offset entirely the impact of the aggravating
circumstances which impel this Court to impose the maximum penalty prescribed by the law
even if the crime committed were only murder.(Appellant's brief [Ong] p. XXXIII.)
It is my considered view that the trial court erred in the appreciation of the different circumstances attending
the killing of the deceased, except as to the aggravating circumstance of use of motor vehicle, which appears

to have been properly taken into account. I do not see sufficient basis, whether in fact or in law, for His
Honor's appreciation of the circumstances of nocturnidad and despoblado just as I concur in the main opinion
in rejecting also abuse of superior strength and cruelty, for the reasons therein given to which I find it
unnecessary to add any. I also concur in that instead of using both alevosia and evident premeditation as
qualifying circumstances, one of them, evident premeditation should be considered as a generic aggravating
circumstance. In other words, my conclusion at this point is that only two aggravating circumstances may be
appreciated against appellants, namely, evident premeditation and use of motor vehicle. I hold further
that nocturnidad and despoblado may not be so considered, and I submit the following considerations in this
regard:
Anent the aggravating circumstance of despoblado in United States vs. Salgado, 71 Phil. 56, the Supreme Court
of the Philippines quoted approvingly the definition of an uninhabited place contemplated in Article 14 (6) of
the Revised Penal Code given by the Supreme Court of Spain in its decision of January 9, 1884 to the effect
that it "is one where there are no houses at all, a considerable distance from town, or where the houses are
scattered a great distance from each other." (at p. 58) Such that "in order that depoblado may be aggravating,
it is necessary that the proofs show affirmatively that the crime was committed in an uninhabited place."
(Aquino, Revised Penal Code, Vol. I, p. 306) Thus, in a parricide case where the distance of the houses to the
scene of the crime was not shown, this Court held that despoblado could not be appreciated as aggravating.
(United States vs. Ayao, 4 Phil. 114) This is how Justice Mapa puts it:
The prosecution says that the murder was perpetrated in an uninhabited place, and with the
concurrence of this aggravating circumstance asks that the penalty of death he imposed upon
the appellants. We do not agree with this view, although the complaint establishes that the
place called Denden, where the crime was committed, is uninhabited; the evidence in the case
does not prove sufficiently that it was really so. The only witness who was interrogated about
this matter was Faustina Bobiles, who testified that at the place in question "there are houses,"
although the are at a distance from the site where the deceased was wounded. This distance
not being clearly specified, there is not a good basis from which to determine accurately
whether the site was inhabited or not, and the defendants should he given the benefit of the
doubt.
In the case at bar, the scene of the crime, according to the prosecution, is an "abandoned subdivision." To
start with, that expression by itself already negates the idea of a place "where there are no houses at all, a
considerable distance from town." A subdivision is designed as a place for habitation and to refer to it as
abandoned is often an exaggeration, unless the exact import of the word is explained. It is true, in testifying
about the reenactment, one of the NBI Investigators, Enrique Lacanilao, mentioned that there were no houses
there. But such a casual statement does not convince me of its accuracy and positiveness, to warrant the
finding that the aggravating circumstance in question may be held to legally exist. Even the fact that Ong did
mention in his confession that he considered the place "ideal" because it was "abandoned and uninhabited" is
not to my mind indicative enough that said appellant's use of the term uninhabited is precisely what the law
connotes. Besides, if precision of language is to be taken into account, Ong did not refer to the place as "ideal"
for killing Chua, but, to quote him exactly, "to bury him." (Exh. N) The pictures taken during the reenactment
which, in the words of His Honor, shows "trees, lush vegetation and thick cogon grasses hide the place",
cannot be conclusive, taken as they have been about five months after the happening at issue. In any event,
considering that the appreciation or non-appreciation of this aggravating circumstance, which notably was not
alleged in the information, could spell the difference between the imposition of either reclusion perpetua or
death upon the accused herein, I would rather give appellant the benefit of my doubt by making the finding
that would not make the consequence of any mistake of mine in connection therewith irretrievable.

Similarly, I am not sufficiently persuaded that the trial court properly appreciated the aggravating
circumstance ofnocturnidad. Earlier, I have punctualized the circumstance clearly established in the record
that it was the victim, Henry Chua, who specified the place and the time of Ong's meeting with him at Amihan
on that fateful night of April 23, 1971. This point is to my mind important because "nocturnity is not
necessarily an aggravating circumstance, and the same should be taken into consideration according to the
circumstances surrounding the commission of the crime. Where it is not evident that the defendants had
purposely sought the nighttime to perpetrate the crime, nocturnity cannot be considered as an aggravating
circumstance. While it is true that the defendants in the case under consideration killed the deceased about
eight o'clock at night, it is not shown that they purposely sought this hour for this purpose." (United States vs.
Balagtas, 19 Phil. 164, 173.) My impression from all the circumstances disclosed by the evidence surrounding
the commission of the offense in the instant case is that it would not have mattered to the deceased whether
the killing was to take place at night or in the daytime. Even if the place which the accused had chosen to be
"ideal" for their purpose, may not, as I have demonstrated, be considered in the criminal law as "uninhabited"
for purpose of its being an aggravating circumstance and hence may not be deemed to have afforded them
the sense of impunity contemplated in the law, as regards nighttime, there is no indication at all that they
actually deliberated on the necessity or convenience of waiting for the cover of the night's darkness in carrying
out their plan.
I am not unaware that Balagtas was decided under the aegis of the Old Penal Code which provided in Article
10 (15) that nocturnity, band or despoblado "shall be taken into consideration by the courts according to the
nature and incidents of the crime" and that, on the other hand, Article 14 (6) of the Revised Penal Code has
eliminated that qualification and instead considers it as aggravating "that the crime be committed in the
nighttime, or in an uninhabited place or by a band, whenever such circumstances may facilitate the
commission of the offense." In fact, there are decisions of this Court justifying the appreciation of nocturnidad
as aggravating even when, without purposely seeking the night's darkness to commit the crime, the offender
"had taken advantage of it in order to facilitate the commission of the crime or for the purposes of impunity."
(Cases cited in Aquino, op. cit. at pp. 301-304; Padilla, Criminal Law, Vol. I, 1974 ed. pp. 377-383.) But in People
vs. Matbagon, 60 Phil. 887, Justice Vickers spoke for the majority of the Court thus:
The next question is whether or not nocturnity should be taken into account as an aggravating
circumstance in this case.
No. 15 of article 10 of the Penal Code provided that it was an aggravating circumstance that the
crime be committed in the nighttime, or in an uninhabited place, or by a band of more than
three armed men (en enadrilla); that this circumstance should be taken into consideration by
the courts according to the nature and incidents of the crime.
No. 6 of article 14 of the Revised Penal Code provides that it is an aggravating circumstance that
the crime be committed in the nighttime or in an uninhabited place, or by a band, whenever
such circumstances may facilitate the commission of the offense that whenever more than
three armed malefactors shall have acted together in the commission of an offense it shall be
deemed to have been committed by a band.
There appears to be no material difference between the provision of the Revised Penal Code
and that of the Penal Code. In construing the provision of the Penal Code relating to nocturnity
would be considered as an aggravating circumstance only when it appeared that it was
especially sought by the offender or that he had taken advantage thereof in order to facilitate
the commission of the crime or for the purpose of impunity.

It was said in the case of People vs. Trumata and Baligasa (49 Phil., 192), that nocturnity should
not be estimated as an aggravating circumstance, since the time for the commission of the
crime was not deliberately, chosen by the accused; that if it appears from the record that the
accused took advantage of the darkness for the more successful consummation of his plans, to
prevent his being recognized, and that the crime might he perpetrated unmolested, the
aggravating circumstance of nocturnity should be applied (U.S. vs. Billedo, 32 Phil., 574, 579).
In the present case none of the foregoing reasons exists for appreciating nocturnity as an
aggravating circumstance. The attack made by the defendant upon the deceased was but a
sequel to the fight at the cockpit, which had taken place half an hour before. If the defendant
had killed the deceased in the fight at the cockpit, probably no one could contend that
nocturnity should be appreciated as an aggravating circumstance in that case. It would be
purely accidental, and so it was in the present case.
The Supreme Court of Spain in its decision of May 23, 1885 held that even in the case of
robbery with homicide the fact that the crime was committed at night is not to be appreciated
as an aggravating circumstance when it may be inferred that the darkness was not intentionally
sought or taken advantage of, but intervened casually: "Considerando que tampoco es de
estimar en perjuicio de los mencionados reos Oliva y Ruiz Bringas la circunstancia de haberse
ejecutado el delito de noche, que es la 15 del citado articulo 10, porque no surte efecto alguno
legal en sentido de agravar la pena imponible si los culpables no la han elegido para realizar
mejor sus malos propositos, o como medio de conseguir la impunidad, lo cual no consta que
hicieran aquellos al matar y robar al Lopez, toda vez que hallandose los tres con frecuencia en
una habitacion independiente de las demas que ocupaban otros vecinos, no parece queles
fuera necesaria una hora precisa para su perpetracion, deduciendose sin gran esfuerzo que, si
el delito se cometio de noche, fue sin ser buscada exprofeso, interviniendo esa circunstancia
casualmente".
In its decision of January 25, 1888, relating to a tumultuous affray at night, the same court held
that the fact that the offense was committed at night should not be regarded as an aggravating
circumstance, because it was not chosen or sought for by the accused, but was purely
accidental.
On the other hand, in its decision of April 14, 1888, the Supreme Court of Spain held that the
aggravating circumstance of nocturnity should he appreciated when the accused chose the
nighttime or took advantage, of it to commit the crime more easily or to secure his impunity.
Viada's comment on this question is as follows: "En aquellos delitos, cuya naturaleza no
empece a la apreciacion de la circunstancia de la noche, habra que distinguir: cuando aparezca
que el autor del hecho busco la noche, o por lo menos se aprovecho de ella para facilitar la
ejecucion del delito, o lograr, a ser posible, su impunidad, debera apreciarse esta circunstancia
de agravacion; cuando aparezca lo contrario, esto es, que la noche no ha sido aguardada ni
aprovechada con intencion por el delincuente para ejecutar en ella el delito, en este caso no
debera tomarse en consideracion la circunstancia de nocturnidad, que fue puramente
accidental, para agravar la responsibilidad del culpable." (2 Viada, 262, 5th ed.)
Justice Hull, with whom Justices Villareal and Butte concurred, wrote a dissent 1 in which he argued that "The
test fixed by the statute is an objective one", and that "a subjective test (was) fixed by the majority opinion."
To my knowledge, this disparity of views as to whether the test should really be objective or subjective has not

been definitely resolved in any subsequent decision of this Court. I wish this case were considered by the
Court as the appropriate one to lay down the law on the matter with more clarity, but since it seems that not
all my colleagues are disposed to go along such direction, I would express my own considered view that as
seemingly conceived by the Old Penal Code, the test should be subjective.
As Justice Vickers elucidated in Matbagon, "to take advantage of a fact or circumstance in committing a crime
clearly implies an intention to do so, and one does not avail oneself of the darkness unless one intended to do
so." In the quotation from Viada in that same case, it is important to note that he makes it plain that in a case
where "la noche no ha sido guardada ni aprovechada con intencion por el delincuente para ejecutar en ella el
delito, en este caso no debera tomarse en consideracion la circunstancia de nocturnidad. (Emphasis mine)
In the Court's per curiam decision in People vs. Boyles, G. R. No. L-15308, May 29, 1964, 11 SCRA 88, this is
what is said:
The lower court appreciated nocturnity against the appellants solely on the basis of the fact on
record that the crime was committed at about 5:00 o'clock in the morning. This particular
finding can stand correction. By and of itself, nighttime is not an aggravating circumstance. It
becomes so only when it is especially sought by the offender and taken advantage of by him to
facilitate the commission of the crime to insure his immunity from capture (People v. Alcala, 46
Phil. 739; People v. Matbagon, 60 Phil. 887; People v. Pardo, 79 Phil, 658). Stated differently, in
default of any showing or evidence that the peculiar advantages of nighttime was purposely
and deliberately sought by the accused, the fact that the offense was committed at night will
not suffice to sustain nocturnidad. It must concur with the intent or design of the offender to
capitalize on the intrinsic impunity afforded by the darkness of night.
In the case presently on appeal, We note that other than the time of the crime, nothing else
whatsoever suggests the aggravating circumstance of nighttime. Not one of the prosecution
evidence, oral or documentary, makes the slightest indication that the protection of night's
darkness was deliberately availed of by the appellants. In view of this deficiency in the case for
the Government, We are constrained to disallow the said circumstance even as, technically, it
may have been accepted by them when they pleaded guilty on arraignment.
I cannot really imagine how anyone can be criminally held responsible for taking advantage of nighttime, when
there is no evidence that the benefit or gain to be derived from its darkness was in any way considered, much
less intended or designed by the accused, especially, when, as in the case at bar, the thrust of the
government's proof is that Ong was so bent on killing his victim and, to my mind, would have cared less if he
did it in the daytime. There may be instances where the circumstances may indicate positively, even in the
absence of any words coming from the accused, that night is being taken advantage of, but I am not ready to
say that it is so in this case under our consideration now.
Withal, following a decision of the Supreme Court of Spain (of February 28, 1884), this Court held in United
States vs. Baguio, 14 Phil. 240, that the appreciation of nocturnity as an aggravating circumstance (lies) in the
discretion of the court." I believe that the change I have referred to above in the phraseology of the pertinent
provision of our penal code has not deprived the Supreme Court of that discretion, particularly where the
question of whether the death penalty should be imposed or not hinges on the opinion of the Court as to the
presence or absence of such aggravating circumstance. For my part, therefore, after mature reflection and
deliberation in the light of the somehow unsettled construction of the specific pertinent penal provision, I feel
there is ample ground to hold, as I do hold, that the extant circumstances of the killing here in question do not
warrant the conclusion that nighttime should be appreciated as having aggravated the crime committed by

the accused, for the simple reason that the record is bare of any indication that the accused ever considered
the advantage of nighttime in the commission of the offense in question. In this connection, it might be
relevant to recall that in Boyles, supra, the accused had already pleaded guilty to the information which
charged nocturnidad, and still the Court, after hearing the evidence, discarded the same for want of evidence
of intent or design in that respect.
Coming now to the contention of appellant Ong that he should be credited with the mitigating circumstance
of plea of guilty, I agree with the main opinion that the contention is justified by the facts of record. To
reiterate, this appellant made it manifest from the start of the present proceedings in the court below that in
due time he would invoke Yturriaga, supra, because the prosecution was indicting him for an offense much
graver than what he had committed and was furthermore alleging aggravating circumstances unwarranted by
the facts he had confessed to or could be proven. As it has turned out, appellant's initial position as to the
offense he has committed and the circumstances attending the same is in the main the correct one. More
than that, if more effort had only been exerted by the fiscal to be as accurate as possible in designating the
offense imputable to the herein accused, the absence of the element of ransom would have been obvious to
him. It is not fair to level against anyone a charge of having committed an offense generally punishable with
death, which in itself should cause uncalculable mental torture, when with a little more deliberation and
study, it should be apparent that a lighter offense can sufficiently vindicate the public interest involved. I do
not mean to urge prosecuting officers to be unnecessarily liberal. What I wish to discourage is over
zealousness that can have unjust and oppressive consequences. The touchstone of a democratic criminal
prosecution is nothing less than fairness in the charge, the trial and conviction.
Section 4 of Rule 118 allows the accused, with the consent of the fiscal and the court, to "plead guilty of any
lesser offense than that charged which is necessarily included in the offense charged in the complaint or
information." Under this provision, once the consent of the fiscal and the court is secured, and upon the
information being correspondingly amended, the accused actually enters a plea of guilty, he is still entitled to
the benefit of the plea of guilty as a mitigating circumstance when the court sentences him for such lesser
offense, even if the offer, the amendment and the plea are made after the prosecution has started its
evidence, (People vs. Ortiz, 15 SCRA 352)albeit it may be mentioned that the reasoning pursued in this
decision is that after the amendment, the plea is to an entirely new information as to which no evidence has
yet been presented, thus adhering strictly to the language of Article 13 (7) of the Revised Penal Code requiring
that the accused should have "voluntarily confessed his guilt before the court prior to the presentation of the
evidence of the prosecution." Where no evidence has yet been presented by the prosecution, it is doubtless
that the benefit of the plea of guilty under the above provision inures to the accused. (People vs. Intal, 101
Phil. 306.) In People vs. Noble, 77 Phil. 93, where the accused offered to plead guilty to the lesser offense of
homicide instead of murder with which he was charged and the fiscal refused to agree, the Court held, after
finding the accused guilty of murder, that the mere offer to plead guilty to homicide was not a mitigating
circumstance.
In the case at bar, the Court is confronted with a situation in which the appellant offered to plead guilty to
precisely the lesser offense which he had confessed to from the start of the NBI investigation before his
arraignment. That offer was rejected by the fiscal, who, we must presume, was already in possession of all the
evidence which he eventually presented to the court, and which the court has found as not warranting at all
the graver charge of kidnapping for ransom with murder. Under these circumstances, I concur in the main
opinion that the following dictum in Yturriaga applies:
... It only remains to consider briefly whether the defendant's plea of guilty in the form it was
entered constitutes a voluntary confession of guilt before the court as defined in the same
subsection of article 13. We think it does.

Although the confession was qualified and introduction of evidence became necessary, the
qualification did not deny the defendant's guilt and, what is more, was subsequently fully
justified. It was not the defendant's fault that aggravating circumstances were erroneously
alleged in the information and mitigating circumstances omitted therefrom. If such qualification
could deprive the accused of the benefit of plea of guilty, then the prosecution could nullify this
mitigating circumstance by counteracting it with unfounded allegations of aggravating
circumstances.
The trial court refused to consider the foregoing ruling, taking the pragmatic view that inasmuch as it had
found the offense committed to be one punishable with the indivisible penalty of death, and, even if it were
murder, there were five aggravating circumstances present, it was inconsequential to discuss the applicability
of Yturriaga as in the end it would not affect the result. For the reasons I have already discussed above, it is
evident that His Honor's position cannot be sustained.
The main opinion also credits appellant Ong with a mitigating circumstance analogous to passion and
obfuscation. Indeed, in passing judgment over the criminal responsibility of this appellant, it is but just that
the Court should consider the cause or reason that must have impelled him to have Chua's life taken. After all,
he is not asking to be absolved. He has freely confessed his guilt; he is only seeking understanding of his
motives, hopefully to secure thereby whatever lightening effect the same may have on the penalty he would
have to undergo in atonement for his act. I am certain he does not expect the Court to exempt him from
criminal liability. In other words, he refers to the reasons for his crime not to justify it, but only to show
absence of real depravity or any inherent criminal nature. If he did premeditate and premeditating did persist
in going ahead with his decision to kill his friend, the urge was accidental, not inborn. The frequent and
persistent demands for payment of his gambling debts perhaps should have been expected, but the manner in
which these were made is something else. As already noted earlier, such importunings bothered the boss of
Ong, they annoyed and "scandalized" Ong's co-workers in the office, to whom he lost face being the assistant
manager; so much so that he had to give up his job. Then there were the veiled threats conveyed to Ong by Ko
King Pin that Chua was not a man to be provoked to anger, which Ong could not ignore, what with Chua's own
words, "If you treasure your life, you better pay first," and that he would turn over Ong's bouncing check "to
other people who will not be courteous anymore." Not every man is given the equanimity and calmness
needed to withstand all these without breaking down inwardly and feeling oppressively aggrieved. Under
these circumstances, it would not be an exaggeration to say that the urge in the feeling of appellant to kill his
tormentor was less than purely voluntary, which diminution is the basis of the mitigating circumstance
contemplated in Article 13 (5) of the Revised Penal Code. 2 (Reyes, Criminal Law, Vol. I, p. 250.) Indeed, rather
than consider the motive behind Ong's offense to be analogous to passion or obfuscation as the main opinion
does, I am more inclined to hold that the resolution to do away with the life of Chua "surged from the
resentment" of Ong over the importunings and threats of Chua and his companions, and inasmuch as evident
premeditation is being appreciated against him, in the fashion of People vs. Guzman, et al. L-7530, Aug. 30,
1958, he could be given, by analogy, the benefit of this mitigating circumstance. Anyway, it can be considered
alternatively with passion or obfuscation, with which it cannot co-exist. (People vs. Doniego, 9 SCRA 541.)
There is no definite criterion of what is a grave offense for the purposes of Article 13(5) of the Revised Penal
Code. Each case should be decided according to the peculiar milieu proven to have been the setting of the
offense. In People vs. Rosel, 66 Phil. 323, the Court held that the remark of the injured party before the guests
that the accused was living at the expense of his wife was such an offense under this article. Where the
injured party had insulted the father of the accused by contemptuously telling him: "Phse, ichura mong lalake"
(Pshaw, you are but a shrimp), the accused was held to have acted in vindication of a grave offense against his
father. And it matters not that the killing of Chua was not immediately after Ong was humiliated, threatened

and oppressed it being clear to me that the influence of such importunings lasted until the commission of the
offense. (People vs. Parana, 64 Phil. 331.)
I realize that the circumstances I have pointed out cannot justify the killing of Chua. But as I have already
stated carrier, this discussion is not intended to exonerate him. I have just looked, as it were, into the surely
perturbed mind of appellant in the night in question, to determine the degree of perversity and criminal
tendencies therein, and I am convinced that he was motivated by the circumstances I have elucidated on
rather than by pure criminality. At this point, I am not even taking into account, because of procedural and
technical impediments, that appellant Ong has filed a motion for new trial strongly indicating what at the trial
he behemently refused to divulge for reasons very personal to him, namely, that the deceased had made
amorous advances to his wife and attempted to rape her on April 15, 1971, which Chua asked in exchange for
her husband's gambling debt. No doubt, if the wife had testified to such facts at the trial, appellant would be
entitled to a full credit of the mitigating circumstance under discussion.
There is an additional circumstance which to me is important in measuring criminal responsibility of the
appellants in this case. I refer to the pecularity that were it not for the disclosures made by them in their
confessions and during the reenactment, the prosecution would have had no basis whatsoever for its attempt,
which the Court has frustrated by this decision, to make them answer for the graver offense of kidnapping for
ransom with murder accompanied by the string of aggravating circumstances listed in the information. One
cannot easily commiserate with killers, but considerations of human dignity and fairness demand that they are
not made to undergo any punishment more than the facts, the law and justice warrant. And the law is inclined
to be more liberal to those who after committing any offense evince by their conduct some signs of remorse
and resignation to accept the penalties that they deserve, by admitting their guilt. But in the present case,
appellant Ong has gone further. He did not only confess he and his co-accused killed the victim, he freely told
his investigators exactly what happened to its last details, thereby making himself subject to the charge of
aggravating circumstances, no other evidence of the government could have supported, considering how and
where the offense was committed and the difficulty of securing witnesses for the State to testify thereon. As I
have said earlier, without the help of the appellants, this would have been no more than a case of murder. In
view of this consideration, I believe it would only he consonant with existing rules in the appreciation of
mitigating circumstances that appellant Ong be credited with an additional mitigating circumstance analogous
to the plea of guilty.
As regards the case of appellant Quintos, I am struck by the evidence that at the last moment he refused to do
what he was assigned to do stab the victim. In other words, he did not carry out to its ultimate conclusion
the criminal design he had in common with his accused. Indeed, in my review of the record I have not
discerned any clear evidence of the specific participation of this appellant in the commission of the offense in
question. In the brief of the Solicitor General, the only imputation to Quintos is that he held the flashlight
while Tan was making Chua prepare a ransom note and that Quintos held the legs of the victim when his dead
body was dumped into the previously chosen hole for his burial. And there is a hint in the record to the effect
that. Quintos had his feet on top of Chua when the latter was being taken to the place of killing. As to the
alleged preparation of a ransom note, I have already demonstrated, it has not been proven beyond reasonable
doubt. This is also the holding in the main opinion. As to the other acts attributed to him, I am not satisfied of
their conclusiveness. And having in mind the undisputed desistance of this appellant, I would say that his
responsibility as principal does not satisfy my conscience. I hold him guilty only as accomplice because his act
of accompanying the other accused was an act of cooperation short of direct participation. .
Accordingly, my vote is to find appellant Benjamin Ong guilty as principal of the crime of murder, with the
aggravating circumstances of use of motor vehicle and evident premeditation although these are offset by the
mitigating circumstances of plea of guilty, passion or obfuscation alternatively with vindication of a grave

offense and the disclosure of all the details of the offense that enabled the prosecution to allege aggravating
circumstances which otherwise could not have been known, which in my opinion is analogous to the plea of
guilty but separate and distinct therefrom. In consequence, said appellant should suffer an indeterminate
sentence of from 12 years of prision mayor as minimum to 20 years of reclusion temporal as maximum, with
the accessory penalties of the law.
Likewise, I find the appellant Bienvenido Quintos guilty of murder, but only as an accomplice, with the
aggravating circumstances of evident premeditation and use of motor vehicle offset only by one mitigating
circumstance similar to that in the case of Ong which is analogous to the plea of guilty inasmuch as Quintos
also revealed details that the government would not have known otherwise. Accordingly, he should be
sentenced to 6 years of prision correccional as minimum to 17 years and 4 months of reclusion temporal as
maximum, with all the accessory penalties of the law.
In all other respects, I concur in the dispositive portion of the main opinion.
Before closing, I would like to explain that I had to prepare this separate opinion because I believe that in
order for me to save any person accused of a capital offense from the death penalty it must appear that from
a computation of the attending aggravating and mitigating circumstances, the death penalty is not imposable.
In other words, I cannot vote for less than the extreme penalty of death when the Court finds that there are
aggravating circumstances not sufficiently offset by mitigating circumstances.

Separate Opinions
BARREDO, J., concurring and dissenting:
I fully concur in the finding in the main opinion of Mr. Justice Fernandez that herein accused-appellants
Benjamin Ong y Kho and Bienvenido Quintos y Sumaljag are guilty of the murder of Henry Chua. The
conspiracy among Ong, Quintos and their co-accused which resulted in the killing of their victim in the early
morning of April 24, 1971 appears proven in the record beyond reasonable doubt. So also the manner in which
the offense was committed. No less than Ong himself admits his responsibility for it. Indeed, I venture the
thought that this case could have been terminated earlier with the conviction of appellants were it not for the
unjustified insistence of the prosecution to exact from them more than what I consider, in the light of the
proven circumstances, to be demanded by justice and the public interest.
At the arraignment, Ong's counsel made it plain that even as his client was entering a plea of not guilty, he was
doing so with the intention to invoke the ruling of this Court in People v. Felipe Yturriaga, (86 Phil. 535),
meaning in effect that while Ong was willing to plead guilty to the murder charged in the information, he
could not do so only because the accusation has not only baselessly complexed it with kidnapping for ransom
but alleged several aggravating circumstances which he felt are unfounded, hence he would in due time ask
the court that he be credited with the mitigating circumstance of the plea of guilty, after he shall have
succeeded in showing that the prosecution is making the charge against them appear graver than what they
have actually committed.
As it turned out later and as borne by the record, outside of the confessions of the appellants and their
testimonies in open court, the prosecution had no independent evidence as to how the offense here in

question was committed. Indeed, from the very nature of the versions of the accused, which the People
accepts, regarding the manner in which Henry Chua died in their hands, the same would have remained
unknown to the investigating authorities and the fiscal, where it not for the voluntary revelations contained in
said confessions. Notably no portion of Ong's confession has been repudiated. Thus, it may be said that for the
government, this would have been no more than a plain case of murder qualified by treachery, which could be
deduced by the fact that when the corpse of Chua was disinterred, his hands were tied at the back and his
mouth was gagged, had not the accused gone further than admitting that they had killed their prey. Whatever
qualifications of the killing appear now in the information, must have been based by the Fiscal on his own
conclusions from the facts furnished by the appellants, not from the findings of any investigator. And
unfortunately for the accused, the Fiscal's conclusions, erroneous as they are, made the case against them
much graver than what it actually is.
The record shows that appellant Ong and the deceased Chua were close friends and even distant relatives. For
more than one year and a half they were often together with some other friends of Chua, namely Go Bun Kin,
Marcelo Tanlimco and Ko King Pin. They used to gamble play mahjong with the peculiarity that the
constant loser was Ong. His losses mounted to close to P150,000, and at the time of the killing of Chua, Ong
still owed him P50,000. Things came to a point that in the mind of Ong, he suspected that he was being
cheated and Chua was the culprit. On the other hand Chua was assiduous in demanding payment of his
winnings. So much so that about one month before the tragic occasion in question, Chua, accompanied by the
other players aforenamed, went to the offices of Acme Shoe and Rubber Products, where Ong was employed
as assistant manager, and demanded, shouting and gesturing in the process, payment of the P50,000. This
incident humiliated Ong because it happened in the presence of his superiors and subordinates; he had
pleaded with his visitors not to create any scandal, but they persisted; Ong lost face; his brother-in-law, the
owner of the firm admonished him that the responsible position he was occupying should be spared from such
"scandals". Things became harder and harder for Ong to bear he had to resign. Ko King Pin had subsequently
returned to that office two or three times, at the instance of Chua, on which occasions, he did not only
demand payment, he suggested to Ong that Chua was not a man to be angered; and Ong had every reason to
believe the veiled threat, since Chua used to brag to him about violent incidents where he was involved; in
fact, Chua told him once "You do not have money, why do you have to gamble? Are you not ashamed of
yourself? If you treasure your life, you better pay first." Thus cornered, Ong turned to all his sources of funds,
but even his usual lenders were no longer available.
On April 21, 1971, Chua called him by phone and in angry tones informed him that the check he (Ong) had
issued in payment of his gambling losses had been dishonored by the bank. Chua threatened to "turn over the
check to other people who will not be courteous anymore." And Chua demanded that they meet at Amihan
Night Club on April 23, 1971, and that Ong should bring the money with him. The chosen hour: 9:00 p. m.
Evidently facing a dead end in his effort to raise the necessary funds, the thought of doing away with the life of
Chua when they would meet that night recurred to his mind. He had been previously crying over the shoulders
of another close friend, his co-accused Fernando Tan, and the latter had broached the idea, "Why not just kill
him." In fact, Tan agreed to take part in the killing. As related in the People's brief:
... A week before April 23, 1971, Fernando Tan phoned his friend Bienvenido Quintos at the
latter's office at Robes Francisco Realty and made an appointment with him whereat they
discussed the plan of Ong to which Quintos agreed (tsn., p. 4, Sept. 22, 1971; Quintos' answers
to Nos. 7-9 in his second sworn statement [Exh. Q], rec., p. 61). Soon, the trio (Ong, Tan and
Quintos) met at the Barrio Fiesta Restaurant at Caloocan City and after eating dinner, they left
and bought a shovel and pick at hardware store somewhere at Rizal Avenue Extension Caloocan
City (Ans. to Q. No. 13, Exh. Q. rec., p. 62). From there, and using Ong's car, the trio proceeded

to Novaliches to look for a site where to bury their intended victim. Ong selected a particular
place, saying "Ito ang mabuti", after which they returned to Caloocan City and parted ways
(Ans. to Q. No. 16, Exh. Q, rec., p. 62). On the following evening, the trio met again at the Barrio
Fiesta Restaurant and at this meeting, they were joined by Baldomero Ambrosia alias "Val", a
former Acme employee and a godson of Ong by marriage (tsn, p. 31, Sept. 22, 1971; Exh. R,
rec., p. 65). After eating dinner, they all rode on Ong's car and proceeded to the site in
Novaliches, selected the previous day by Ong (Ans. to Q. No. 17, Exh. Q, rec., p. 62). Upon
reaching the site, Ong opened the back compartment of his car and instructed Val to get the
shovel and pick. The four walked for a distance of about thirty meters from the road, after
which Val was instructed to dig a hole. With Quintos holding a flashlight, Val dug the hole while
Tan and Ong watched the digging, after which they covered the hole with fresh twigs. Thence
they returned to Caloocan City where they separated (Ans. to Q. No. 18, Exh. Q, rec., 62).
Regarding what happened immediately before, during and after the meeting of Chua and Ong at Amihan at
9:00 p.m., April, 23, 1971, I find the following conclusions of the trial court to be supported by the evidence,
except as to (1) one aspect of that meeting at Amihan, for whereas the decision simply says that Chua and Ong
met, it omits the pivotal relevant point that it was the deceased who fixed the time and place of said meeting
and (2) the existence of the alleged ransom note, which does not appear to be clearly established, as will be
discussed later:
On April 20 or 21, 1971, Benjamin talked to Henry Chua over the telephone. They agreed to
meet at the Amihan Nightclub on Roxas Club Blvd., Paraaque, Rizal, at around 9:00 o'clock in
the evening of Friday April 23, 1971. The stage was set for the carrying out of his plans, so on
April 22, 1971, Benjamin Ong contacted Clarita Teh of the Skyways Travel Agency and
requested not only booking but also the preparation of his travel papers, destination Taipei.
Obviously, this was a necessary step to insure his escape immediately after the execution of his
plan to kidnap and murder Henry Chua.
At 7:30 o'clock, in the evening of April 23, 1971, Benjamin Ong met Fernando Tan, "Val" and
Bienvenido Quintos at the Barrio Fiesta in Caloocan City. There the plans of the group were
finalized and after dinner they proceeded to Amihan Nightclub.
Benjamin Ong joined Henry Chua inside the Club while Fernando Tan, Val and Quintos
remained in Ong's Biscayne car and waited outside the club. A short while later, Benjamin Ong
came out of the Amihan Nightclub and told Fernando Tan to come inside. Obviously, this was a
necessary step to enable Fernando Tan to know the identity of the intended victim. Quintos
and Val remained in the car. Sometime later, Fernando Tan came out of the Amihan Nightclub
and asked Quintos to go with him to the Wigwam Nightclub which is next door to the Amihan
Nightclub.
After plying Henry Chua with brandy inside the Amihan Nightclub, Benjamin Ong, on the
pretext that the hostess of his acquaintance was not there, urged the former to move to the
Wigwam Nightclub. There they tabled two hostesses known to them, one of them being Ligaya
Tamayo. Ong continued to ply Henry Chua with brandy. In the meanwhile, Fernando Tan and
Quintos took a separate table inside the Wigwam Nightclub so they could watch Benjamin Ong
and Henry Chua when they start to leave the place. At around 1:30 a.m., April 24, 1971, Henry
Chua and Benjamin Ong left the Wigwam Nightclub and got into Henry Chua's Mustang car,
Fernando Tan and Bienvenido Quintos followed and got into Ong's Biscayne car, and when the
Chua car passed by, they followed, with "Val" driving the Biscayne.

The Chua car left the Wigwam Nightclub in Paraaque, Rizal, proceeded through Manila,
passing Quezon Bridge, then to Quezon City passing Quezon Boulevard Extension, passed Sto.
Domingo Church, where it made a U-turn and then turned right on a dirt road leading to Del
Monte Avenue. Reaching a paved portion of the road leading to Del Monte Avenue, Ong told
Chua to stop the car on the pretext of wanting to urinate. As soon as Ong got out of the parked
Chua car, Val parked the Biscayne car ahead of the Mustang, blocking its way, and Fernando
Tan and Val alighted. They proceeded to the parked Mustang car where Fernando Tan poked a
gun at Henry Chua and Val opened the door at the driver's side and dragged Henry Chua from
the Mustang car and forced him into the back seat of the Biscayne car. Henry Chua was then
forced to lie down face up on the floor of the car while his hands and feet were bound by
Fernando Tan with pieces of rope and a flannel cloth tied over his mouth to gag him. Benjamin
Onggot be behind the wheel of the Mustang car and followed the Biscayne car which had
started to move towards Novaliches.
Arriving at the site previously chosen in Barrio Makatipo, both cars stopped. Fernando Tan and
Benjamin Ong, having alighted from the cars they were riding in, talked, while Val pulled Henry
Chua out of the Biscayne car. Ong then took a shovel and a flashlight from the trunk
compartment at the back of the Biscayne car. He handed the shovel to Quintos. The rope
binding Henry Chua's feet was untied, but his hands remained tied and his mouth was still
gagged as the accused led him to the site where a hole had previously been dug out.
At that place, Henry Chua's hands and mouth were untied and ungagged, although Fernando
Tan held his gun pointed at Henry Chua's head. He was then ordered to copy a prepared
ransom note directing that $50,000. ransom money be paid. Henry Chua complied, but pleaded
"Huwag ninyo akong patayin, ha?" to which Fernando Tan answered, "Pabayaan mo, makauuwi
ka." Henry Chua's hands were again tied in front of him and the gag over his mouth tied again.
He was made to lie on the ground, face up. Benjamin Ong then handed the icepick to Fernando
Tan and said "Patayin na iyan!" Fernando Tan handed the icepick to Val, who in turn, handed it
to Quintos. But Quintos, obviously did not have the nerve to kill Chua, justifying his inaction by
saying he had no grudge against Chua. Fernando Tan then grabbed the icepick uttering the
words, "Hindi ka pa pala puede." The flashlight was then handed by Tan to Val who focused it
on Henry Chua's breast. Fernando Tan then stabbed Henry Chua twice with the icepick. The
body of their victim was then to dragged to the prepared hole, Val pulling the body while
Quintos was holding the legs, and dumped in a crouching position, face down, with the tied
hands held in front of his breast. The hole was then covered with soil, then the mound stomped
on by Benjamin Ong.
Benjamin Ong and Fernando Tan boarded the Mustang while Quintos and Val rode in the
Biscayne car. With Ong driving the Mustang and Val the Biscayne they proceeded to Barrio
Tibag Baliuag Bulacan, where the Mustang car was locked and abandoned near a Shell gasoline
station. All four then returned to Manila in Ong's Biscayne car. They parted from each other's
company at around 7:00 o'clock in the morning of April 24, 1971. On the following days, both
Benjamin Ong and Bienvenido Quintos reported to their respective place of work as if nothing
sinister had taken place. (Appellant's Brief [Ong], pp. XIV-XIX)
In connection with the meeting at Amihan, the only evidence on record as to how the place and time thereof
were fixed is the following portion of Exhibit N, the extrajudicial confession of Ong:
30. Q. What did you do after you were embarrassed and degraded as you mentioned?

A. Sometime on April 20 or 21, 1971, HENRY CHUA called me up by phone at my office and it
was at this time that I decided to kill him. He asked me when I could make settlement of my
obligations and he asked me if I am available on Friday, April 23, 1971 to see him at AMIHAN
CLUB at Roxas Blvd. and I said yes, promising that I would pay him. (Appellant's brief [Ong], No.
30, p. 22)
It was Chua then who set such place and time. As will be elucidated later, this particular detail is decisive in
determining whether or not appellants purposely sought the cover of the night's darkness in committing the
crime for which the State is demanding atonement with their own lives.
With respect to the supposed ransom note, I must make it clear at the outset that in my view of the case at
bar, it is of no significant consequence whether or not there was in fact such a note. But if it could be in any
sense material, I would subscribe to the view in the main opinion that its non-production considerably impairs
credence as to the possibility of its actual existence. And as I will explain at a more appropriate place in the
subsequent discussion, the other related circumstances extant in the record tend to belie, in my opinion, that
anything about ransom was ever taken up on the occasion in question.
Subject to the foregoing reservations, I would say that the basic conclusions of fact of the trial court find
ample support in the evidence before it. Indeed, in the light of said facts, it is beyond reasonable doubt that
appellants Ong and Quintos should be held criminally responsible for the killing of Henry Chua. And from what
I gather from appellant Ong's position since the time he was investigated by the agents of the National Bureau
of Investigation, he is not shirking that responsibility.
Insofar as appellant Quintos is concerned, while he admits having been with his co-accused when Chua's life
was taken, he claims that his part in the whole affair was either innocuous or impelled by uncontrollable fear.
At least one damaging point, however, is quite clear in his own testimony. He admits having been handed the
ice pick for him to kill Chua, and although he claims he refused to use it, he has not proven that he exerted an
effort to dissuade his companions from completing and accomplishing their criminal design. At any rate, the
discussion and finding in the main opinion that Quintos was one of the conspirators has sufficient basis in the
record to warrant his conviction, and I concur therein, even as I do not share the conclusion, as I will presently
point out, that he and Ong deserve the extreme penalty of death.
His Honor held that the crime committed by appellants is kidnapping for ransom with murder, an offense
ineludably punished precisely with death. Even for kidnapping for ransom alone, such is the enexorable
penalty provided by law. (Article 267, Revised Penal Code, as amended by Republic Act 1084.) The pertinent
provision reads thus:
The penalty shall be death where the kidnapping or detention was committed for the purpose
of extorting ransom from the victim or an other person, even if none of the circumstances
above-mentioned were present in the commission of the offense.
However, I concur fully in the main opinion that such holding is completely erroneous and cannot be upheld.
As Mr. Justice Fernandez very well point out, it is basic and elementary that the essence of the crime of
kidnapping under Article 267 of the Revised Penal Code is detention. Indeed, from the very beginning of
Philippine jurisprudence in Volume I of the Philippine Reports, the Supreme Court already took the view that
taking the victim from his home to a suitable place and then and there killing him evinces no shade of illegal
detention, since it would not appear that the intention is to deprive him of his liberty, but rather of his life.
(United States vs. Ancheta, 1 Phil. 165, 169.) There has been no ruling otherwise since then.

It is to my mind incorrect to say that in the two Parulan cases, Parulan vs. Rodas, 78 Phil. 855 and People vs.
Parulan, 88 Phil. 615, this Court held that the offense of kidnapping or illegal detention can be complexed with
the crime of murder pursuant to Article 48 of the Revised Penal Code when it is shown that the purpose of the
apprehension and detention of the victim is to take him to the place of killing, as where the kidnapping is
resorted to as a means for his killing, thereby overruling the doctrine in Ancheta, supra. I have read and
studied both Parulan decisions, but I cannot find therein anything along the legal proposition suggested. This is
what appears in Justice Feria's opinion in the first case:
From a cursory examination of the foregoing it clearly appears that the crime charged is
kidnapping and murder and the former was committed by the defendants as a necessary means
"for the purpose of extorting ransom from the victim or killing him if the desired amount of
money could not be given," that is, that the defendants had to kidnap or carry the victim to a
faraway and secluded place in order to better secure the consent of the victim through fear to
pay the ransom, and kill him with certain sense of impunity and certainty that no other person
may witness the commission of the offense by the defendants if the victim refuses to accede to
their demand, and that in fact he was killed by the defendants because of his refusal to pay the
ransom.
And this is what Justice Pablo said in the second case:
La contencion de due el Juzgado de Primera Instancia de Manila no tiene jurisdiccion sobre la
causa, ya esta resuelta por este tribunal en Parulan contra Rodas, 78 Phil., 855. En dicho recurso
el acusado impugno la jurisdiccion del Juzgado de Primera Instancia de Manila, alegando que el
secuestro y asesinato son dos distintos crimenes; que el asesinato se cometio en Bulacan y, por
tanto, el juzgado de esta provincial es la que tenia jurisdiccion exclusive sobre la causa. Este
Tribunal dedaro que el crimen denunciado es el delito complejo de secuestro conase asesinato;
que el secuestro se realizo como medio necesario para arrancar dinero de la victima o matarle
si la cantidad pedida no lo diese; que cualquier juzgado de primera instancia en que se haya
cometido cualquier elemento esencial de dicho crimen complejo tiene jurisdiccion; y se denego
la solicitud.
What is to me clear from these quotations is that it is the element of demand for ransom and subsequent
frustration in getting the same existing in Parulan that makes the difference between it and Ancheta, wherein
said element was absent. Which is understandable, because when the purpose of the kidnapping is ransom,
the offender would necessarily have to detain his victim while waiting for the result of the demand, and kill
him only in case such result is negative. In other words, in Parulan the kidnapping was definitely for ransom
and not necessarily to kill, whereas in the instant case it was solely to kill. When the sole purpose of the
kidnapping is to kill, I maintain that the Ancheta ruling still holds, precisely because in such a case the intent to
commit detention which is the essence of kidnapping is absent. Strikingly parallel, indeed, to the
circumstances of the case at bar were those of Ancheta. Said the Court therein:
Furthermore, in view of the nature and circumstances of the murder for which this cause is prosecuted it is
evident that the fact that the deceased was captured in his house and taken by the defendants to an
uninhabited place selected by them for the purpose of killing him there, does not constitute the crime of
illegal detention, since it does not appear that it was the purpose of the accused to commit this offense. On
the contrary they seized the unfortunate Quinto in his house with the sole object of carrying him away to a
suitable place, which they subsequently pointed out to the authorities, and of there murdering him.

A careful review of the evidence in this case fails to show any indication that Ong and his co-accused ever
entertained the thought of detaining the deceased for ransom. It is true a certain Patrolman Marciano Roque
of the Caloocan City Police testified regarding alleged conversations he had with Ong wherein the latter
supposedly revealed to him a plan to kidnap Chua for ransom. Let us hearken in this connection to the findings
of the trial judge himself:
... The first witness presented was Pat. Marciano Roque of the Caloocan Police Department. He
testified to having known Benjamin Ong for more than five years as the latter was the Assistant
Manager of the Acme Shoe, Rubber and Plastic Corporation, a company situated in Caloocan
City owned by Chua Pak Ong's brother-in-law. Sometime during the first week of April, 1971, he
went to the Acme office to get a pair of rubber sandals and was there met by Benjamin Ong
who invited him to ride in his car and there revealed his plan to kidnap a person whom he
believed had cheated him in a gambling game. The witness dissuaded the accused Benjamin
Ong from carrying out his plan but the latter persisted and reiterated his request for assistance
during the several meetings which followed. On one occasion, according to this witness, he was
taken to Barrio Makatipo, Caloocan City, by Benjamin Ong and shown the place where said
accused intended to bury the person he was planning to kidnap and kill. Benjamin Ong tried to
convince the witness to join in his plan to effect a kidnapping by assuring him that he already
had a completed plan, that a godson of his would also help out, and that the father of the
intended victim was very rich and that from the ransom money they would receive from the
father of the victim, the witness could already leave the police force and retire. Witness also
testified that he tried his best to avoid Ben Ong, and at their last meeting urged him to forget
the whole thing. Although he informed Capt. Duenas and Lt. Manabat of the Caloocan Police,
and still later Chief of Police Celestino Rosca of Benjamin Ong's plan, he did not know the
identity of the intended victim until the first week of May, 1971 when he was called by Chief of
Police Celestino Rosca who informed him that a Chinaman by the name of Henry Chua was
missing and that Benjamin Ong was being sought be the NBI. ... (Pp. III-IV, Appellant's Brief
[Ong].)
One does not have to tarry for more than a moment to see how preposterous Patrolman Roque's testimony is.
What immediately strikes me is that allegedly Ong did not only confess to him his diabolical plan to kidnap
Chua for ransom, Ong actually invited Roque to join in the commission of such capital offense. If such
testimony were in any way true, I am sure the present case would not have come to be at all Chua would
not have been killed and Ong would probably have long been in jail for a non-capital offense initiated by no
less than the Caloocan City Police. For I cannot conceive of a faithful and loyal policeman to whom a proposal
to commit such a heinous crime can be made without his taking corresponding action in the public interest,
just as it is for me difficult to imagine how Ong or any man could have had the courage and audacity to even
merely suggest such an idea to a member of the police, there being nothing in the evidence showing that such
a close and intimate relation existed between them to permit that a matter so strictly personal and
confidential in nature be discussed by them just like that. The thing becomes more absurd and ludicrous when
it is considered that Patrolman Roque added that he had sort of reported Ong's proposal earlier to his
superiors Captain Duenas and Lieutenant Manabat and later to the Chief of Police himself, Celestino Rosca.
One has to be completely naive to believe that these high officers of the Caloocan City Police just laughed off
the report of Patrolman Roque merely because allegedly Ong did not reveal to him the name of the intended
victim, even if it was already apparent to Roque that Ong was really serious and persistent in his proposal. The
Court has consistently refused to give any credit to testimonies that on their faces do not accord with the
ordinary experience of man and the usual course of official conduct, and surely, in my opinion, We must reject
this one for being obviously a pure canard. Indeed, if only so that the police in this country are made aware of
the necessity for all of them to always act consistently with the demands of public interest on occasions

similar to the present one, wherein a policeman either imposes upon the good faith of the court by telling it a
cock-and-bull story or reacts to an invitation for him to take part in the commission of a capital offense as if it
were nothing more casual than a personal and private matter to him, I feel that the record of the testimony in
question should be brought to the attention of the National Police Commission.
But even if there were a way of considering the said testimony as true, still, the fact would be that whatever
proposition it was that Ong made to Patrolman Roque, nowhere in the record has it been demonstrated that
Ong ever carried out the same either alone or together with his co-accused in this case, much less with the
assistance of Roque which admittedly was never given. There is neither testimony of any witness nor
statement of any of the accused indicating any link between Tan's alleged act of making Chua copy a ransom
note and sign it and Ong. If such a link could be a matter of inference or something covered by the rule that
the act of any of the conspirators constitutive of an inculpatory element or circumstance of the offense is the
act of all, the conspiracy being proven, this legal conjectures would be patently belied by the undisputed proof
to the effect that, as found by His Honor, after Chua had prepared and signed the supposed ransom note, and
even as he was pleading "Huwag ninyo akong patayin, ha?" and Fernando Tan was assuring him "Pabayaan
mo, makauuwi ka", his (Chua's) "hands were tied again and the gag over his mouth tied again. He was made to
lie on the ground face up. Benjamin Ong then handed the ice-pick to Fernando Tan and said "Patayin na iyan"
", and without further loss of time, it was so done. In other words, even assuming arguendo that Ong had ever
made a proposition to Patrolman Roque to join him in a kidnapping for ransom, the fact is that idea never
passed the stage of a mere proposal, hence is not punishable under Article 8 of the Revised Penal Code, and
what actually was committed by Ong and his companions was no more than murder, the ransom idea, if it was
ever thought of, having been abandoned completely at least insofar as Ong was concerned. The prosecution
did not present any evidence, presumably because there was none, that anybody, not to speak of the
members of the Chua family, one of whom, Sy Giap, a brother of the deceased, testified at the trial, ever
received a demand for ransom from any of the accused.
The following, therefore, rule out the possibility that there was an element of ransom in the taking of Chua to
the place of his killing: (1) The evidence of the prosecution that such an idea was in the mind of Ong days
before April 24, 1971 is utterly incredible, being unnatural and contrary to human experience and official
comportment of the most simple minded policeman (2) the non-production of the alleged ransom note has
not been explained at all; (3) indisputably no demand was ever made upon anyone for the payment of any
ransom; and (4) the trial court found, and this finding is firmly borne by the evidence presented by both
parties at the hearing, that Ong evidently paid no heed to the supposed preparation or copying and signing of
the alleged ransom note, as on the spot he resolutely, impatiently and curtly directed his co-accused, "Patayin
na iyan", without regard to the alleged ransom note, which, to be sure, does not appear to have been talked
about then by the accused at all.
In view of the foregoing, I am totally convinced that the offense committed by the accused in the instant case
cannot be more than murder; certainly, it was not kidnapping for ransom with murder. Thus, the only
question that remains to be determined is, were there any circumstances attending the commission of the
offense or related thereto that could legally be considered as mitigating or aggravating the same for purposes
of imposing the appropriate penalty?
According to the information, the murder in question was qualified by treachery and that it was attended by
the following generic aggravating circumstances: (1) evident premeditation; (2) grave abuse of confidence; (3)
nighttime; (4) use of motor vehicle; (5) use of superior strength and (6) cruelty. But as earlier stated, at the
arraignment, appellant Ong offered in effect to plead guilty to murder, instead of to kidnapping for ransom
with murder, and challenged the propriety of the aggravating circumstances thus alleged. In convicting the
appellants of kidnapping for ransom with murder, the trial court appreciated against them the aggravating

circumstances of nighttime, despoblado or uninhabited place, abuse of confidence, use of motor vehicle and
cruelty. Additionally, in His Honor's own words, it was his finding that "the killing of the victim was qualified by
evident premeditation. ... The killing of Henry Chua was, therefore, also qualified be the circumstance of
treachery or alevosia", hence, neither of these two circumstances was considered as generic aggravating. And
with respect to the submission of appellant Ong that applying the doctrine in Yturriaga, supra, he should be
credited with the mitigating circumstance of plea of guilty, the learned trial judge disposed of the contention
as follows:
In a manifestation filed before entering trial, the accused Benjamin Ong reiterated the fact that
he entered a plea of "not guilty" to the information as read to him, but invoked the doctrine in
the case ofPeople vs. Yturriaga, 86 Phil. 534, 539, that the prosecution may not nullify the
mitigating circumstance of a plea of guilty and deprive the accused of the benefit of such a plea,
by counter-acting it with unfounded allegations' of aggravating circumstances in the
information.
This Court, however, believes that the Yturriaga doctrine cannot be invoked in this case in view
of the conclusion reached that the crime committed was the complex offense of kidnapping
with murder for which the law prescribes the indivisible penalty of death. Furthermore, having
reached the conclusion that five aggravating circumstances attended the commission of the
crime, even if the plea of guilty to simple murder were to be credited in favor of the accused
Benjamin Ong, the same will not suffice to offset entirely the impact of the aggravating
circumstances which impel this Court to impose the maximum penalty prescribed by the law
even if the crime committed were only murder.(Appellant's brief [Ong] p. XXXIII.)
It is my considered view that the trial court erred in the appreciation of the different circumstances attending
the killing of the deceased, except as to the aggravating circumstance of use of motor vehicle, which appears
to have been properly taken into account. I do not see sufficient basis, whether in fact or in law, for His
Honor's appreciation of the circumstances of nocturnidad and despoblado just as I concur in the main opinion
in rejecting also abuse of superior strength and cruelty, for the reasons therein given to which I find it
unnecessary to add any. I also concur in that instead of using both alevosia and evident premeditation as
qualifying circumstances, one of them, evident premeditation should be considered as a generic aggravating
circumstance. In other words, my conclusion at this point is that only two aggravating circumstances may be
appreciated against appellants, namely, evident premeditation and use of motor vehicle. I hold further
that nocturnidad and despoblado may not be so considered, and I submit the following considerations in this
regard:
Anent the aggravating circumstance of despoblado in United States vs. Salgado, 71 Phil. 56, the Supreme Court
of the Philippines quoted approvingly the definition of an uninhabited place contemplated in Article 14 (6) of
the Revised Penal Code given by the Supreme Court of Spain in its decision of January 9, 1884 to the effect
that it "is one where there are no houses at all, a considerable distance from town, or where the houses are
scattered a great distance from each other." (at p. 58) Such that "in order that depoblado may be aggravating,
it is necessary that the proofs show affirmatively that the crime was committed in an uninhabited place."
(Aquino, Revised Penal Code, Vol. I, p. 306) Thus, in a parricide case where the distance of the houses to the
scene of the crime was not shown, this Court held that despoblado could not be appreciated as aggravating.
(United States vs. Ayao, 4 Phil. 114) This is how Justice Mapa puts it:
The prosecution says that the murder was perpetrated in an uninhabited place, and with the
concurrence of this aggravating circumstance asks that the penalty of death he imposed upon
the appellants. We do not agree with this view, although the complaint establishes that the

place called Denden, where the crime was committed, is uninhabited; the evidence in the case
does not prove sufficiently that it was really so. The only witness who was interrogated about
this matter was Faustina Bobiles, who testified that at the place in question "there are houses,"
although the are at a distance from the site where the deceased was wounded. This distance
not being clearly specified, there is not a good basis from which to determine accurately
whether the site was inhabited or not, and the defendants should he given the benefit of the
doubt.
In the case at bar, the scene of the crime, according to the prosecution, is an "abandoned subdivision." To
start with, that expression by itself already negates the idea of a place "where there are no houses at all, a
considerable distance from town." A subdivision is designed as a place for habitation and to refer to it as
abandoned is often an exaggeration, unless the exact import of the word is explained. It is true, in testifying
about the reenactment, one of the NBI Investigators, Enrique Lacanilao, mentioned that there were no houses
there. But such a casual statement does not convince me of its accuracy and positiveness, to warrant the
finding that the aggravating circumstance in question may be held to legally exist. Even the fact that Ong did
mention in his confession that he considered the place "ideal" because it was "abandoned and uninhabited" is
not to my mind indicative enough that said appellant's use of the term uninhabited is precisely what the law
connotes. Besides, if precision of language is to be taken into account, Ong did not refer to the place as "ideal"
for killing Chua, but, to quote him exactly, "to bury him." (Exh. N) The pictures taken during the reenactment
which, in the words of His Honor, shows "trees, lush vegetation and thick cogon grasses hide the place",
cannot be conclusive, taken as they have been about five months after the happening at issue. In any event,
considering that the appreciation or non-appreciation of this aggravating circumstance, which notably was not
alleged in the information, could spell the difference between the imposition of either reclusion perpetua or
death upon the accused herein, I would rather give appellant the benefit of my doubt by making the finding
that would not make the consequence of any mistake of mine in connection therewith irretrievable.
Similarly, I am not sufficiently persuaded that the trial court properly appreciated the aggravating
circumstance ofnocturnidad. Earlier, I have punctualized the circumstance clearly established in the record
that it was the victim, Henry Chua, who specified the place and the time of Ong's meeting with him at Amihan
on that fateful night of April 23, 1971. This point is to my mind important because "nocturnity is not
necessarily an aggravating circumstance, and the same should be taken into consideration according to the
circumstances surrounding the commission of the crime. Where it is not evident that the defendants had
purposely sought the nighttime to perpetrate the crime, nocturnity cannot be considered as an aggravating
circumstance. While it is true that the defendants in the case under consideration killed the deceased about
eight o'clock at night, it is not shown that they purposely sought this hour for this purpose." (United States vs.
Balagtas, 19 Phil. 164, 173.) My impression from all the circumstances disclosed by the evidence surrounding
the commission of the offense in the instant case is that it would not have mattered to the deceased whether
the killing was to take place at night or in the daytime. Even if the place which the accused had chosen to be
"ideal" for their purpose, may not, as I have demonstrated, be considered in the criminal law as "uninhabited"
for purpose of its being an aggravating circumstance and hence may not be deemed to have afforded them
the sense of impunity contemplated in the law, as regards nighttime, there is no indication at all that they
actually deliberated on the necessity or convenience of waiting for the cover of the night's darkness in carrying
out their plan.
I am not unaware that Balagtas was decided under the aegis of the Old Penal Code which provided in Article
10 (15) that nocturnity, band or despoblado "shall be taken into consideration by the courts according to the
nature and incidents of the crime" and that, on the other hand, Article 14 (6) of the Revised Penal Code has
eliminated that qualification and instead considers it as aggravating "that the crime be committed in the
nighttime, or in an uninhabited place or by a band, whenever such circumstances may facilitate the

commission of the offense." In fact, there are decisions of this Court justifying the appreciation of nocturnidad
as aggravating even when, without purposely seeking the night's darkness to commit the crime, the offender
"had taken advantage of it in order to facilitate the commission of the crime or for the purposes of impunity."
(Cases cited in Aquino, op. cit. at pp. 301-304; Padilla, Criminal Law, Vol. I, 1974 ed. pp. 377-383.) But in People
vs. Matbagon, 60 Phil. 887, Justice Vickers spoke for the majority of the Court thus:
The next question is whether or not nocturnity should be taken into account as an aggravating
circumstance in this case.
No. 15 of article 10 of the Penal Code provided that it was an aggravating circumstance that the
crime be committed in the nighttime, or in an uninhabited place, or by a band of more than
three armed men (en enadrilla); that this circumstance should be taken into consideration by
the courts according to the nature and incidents of the crime.
No. 6 of article 14 of the Revised Penal Code provides that it is an aggravating circumstance that
the crime be committed in the nighttime or in an uninhabited place, or by a band, whenever
such circumstances may facilitate the commission of the offense that whenever more than
three armed malefactors shall have acted together in the commission of an offense it shall be
deemed to have been committed by a band.
There appears to be no material difference between the provision of the Revised Penal Code
and that of the Penal Code. In construing the provision of the Penal Code relating to nocturnity
would be considered as an aggravating circumstance only when it appeared that it was
especially sought by the offender or that he had taken advantage thereof in order to facilitate
the commission of the crime or for the purpose of impunity.
It was said in the case of People vs. Trumata and Baligasa (49 Phil., 192), that nocturnity should
not be estimated as an aggravating circumstance, since the time for the commission of the
crime was not deliberately, chosen by the accused; that if it appears from the record that the
accused took advantage of the darkness for the more successful consummation of his plans, to
prevent his being recognized, and that the crime might he perpetrated unmolested, the
aggravating circumstance of nocturnity should be applied (U.S. vs. Billedo, 32 Phil., 574, 579).
In the present case none of the foregoing reasons exists for appreciating nocturnity as an
aggravating circumstance. The attack made by the defendant upon the deceased was but a
sequel to the fight at the cockpit, which had taken place half an hour before. If the defendant
had killed the deceased in the fight at the cockpit, probably no one could contend that
nocturnity should be appreciated as an aggravating circumstance in that case. It would be
purely accidental, and so it was in the present case.
The Supreme Court of Spain in its decision of May 23, 1885 held that even in the case of
robbery with homicide the fact that the crime was committed at night is not to be appreciated
as an aggravating circumstance when it may be inferred that the darkness was not intentionally
sought or taken advantage of, but intervened casually: "Considerando que tampoco es de
estimar en perjuicio de los mencionados reos Oliva y Ruiz Bringas la circunstancia de haberse
ejecutado el delito de noche, que es la 15 del citado articulo 10, porque no surte efecto alguno
legal en sentido de agravar la pena imponible si los culpables no la han elegido para realizar
mejor sus malos propositos, o como medio de conseguir la impunidad, lo cual no consta que
hicieran aquellos al matar y robar al Lopez, toda vez que hallandose los tres con frecuencia en

una habitacion independiente de las demas que ocupaban otros vecinos, no parece queles
fuera necesaria una hora precisa para su perpetracion, deduciendose sin gran esfuerzo que, si
el delito se cometio de noche, fue sin ser buscada exprofeso, interviniendo esa circunstancia
casualmente".
In its decision of January 25, 1888, relating to a tumultuous affray at night, the same court held
that the fact that the offense was committed at night should not be regarded as an aggravating
circumstance, because it was not chosen or sought for by the accused, but was purely
accidental.
On the other hand, in its decision of April 14, 1888, the Supreme Court of Spain held that the
aggravating circumstance of nocturnity should he appreciated when the accused chose the
nighttime or took advantage, of it to commit the crime more easily or to secure his impunity.
Viada's comment on this question is as follows: "En aquellos delitos, cuya naturaleza no
empece a la apreciacion de la circunstancia de la noche, habra que distinguir: cuando aparezca
que el autor del hecho busco la noche, o por lo menos se aprovecho de ella para facilitar la
ejecucion del delito, o lograr, a ser posible, su impunidad, debera apreciarse esta circunstancia
de agravacion; cuando aparezca lo contrario, esto es, que la noche no ha sido aguardada ni
aprovechada con intencion por el delincuente para ejecutar en ella el delito, en este caso no
debera tomarse en consideracion la circunstancia de nocturnidad, que fue puramente
accidental, para agravar la responsibilidad del culpable." (2 Viada, 262, 5th ed.)
Justice Hull, with whom Justices Villareal and Butte concurred, wrote a dissent 1 in which he argued that "The
test fixed by the statute is an objective one", and that "a subjective test (was) fixed by the majority opinion."
To my knowledge, this disparity of views as to whether the test should really be objective or subjective has not
been definitely resolved in any subsequent decision of this Court. I wish this case were considered by the
Court as the appropriate one to lay down the law on the matter with more clarity, but since it seems that not
all my colleagues are disposed to go along such direction, I would express my own considered view that as
seemingly conceived by the Old Penal Code, the test should be subjective.
As Justice Vickers elucidated in Matbagon, "to take advantage of a fact or circumstance in committing a crime
clearly implies an intention to do so, and one does not avail oneself of the darkness unless one intended to do
so." In the quotation from Viada in that same case, it is important to note that he makes it plain that in a case
where "la noche no ha sido guardada ni aprovechada con intencion por el delincuente para ejecutar en ella el
delito, en este caso no debera tomarse en consideracion la circunstancia de nocturnidad. (Emphasis mine)
In the Court's per curiam decision in People vs. Boyles, G. R. No. L-15308, May 29, 1964, 11 SCRA 88, this is
what is said:
The lower court appreciated nocturnity against the appellants solely on the basis of the fact on
record that the crime was committed at about 5:00 o'clock in the morning. This particular
finding can stand correction. By and of itself, nighttime is not an aggravating circumstance. It
becomes so only when it is especially sought by the offender and taken advantage of by him to
facilitate the commission of the crime to insure his immunity from capture (People v. Alcala, 46
Phil. 739; People v. Matbagon, 60 Phil. 887; People v. Pardo, 79 Phil, 658). Stated differently, in
default of any showing or evidence that the peculiar advantages of nighttime was purposely
and deliberately sought by the accused, the fact that the offense was committed at night will

not suffice to sustain nocturnidad. It must concur with the intent or design of the offender to
capitalize on the intrinsic impunity afforded by the darkness of night.
In the case presently on appeal, We note that other than the time of the crime, nothing else
whatsoever suggests the aggravating circumstance of nighttime. Not one of the prosecution
evidence, oral or documentary, makes the slightest indication that the protection of night's
darkness was deliberately availed of by the appellants. In view of this deficiency in the case for
the Government, We are constrained to disallow the said circumstance even as, technically, it
may have been accepted by them when they pleaded guilty on arraignment.
I cannot really imagine how anyone can be criminally held responsible for taking advantage of nighttime, when
there is no evidence that the benefit or gain to be derived from its darkness was in any way considered, much
less intended or designed by the accused, especially, when, as in the case at bar, the thrust of the
government's proof is that Ong was so bent on killing his victim and, to my mind, would have cared less if he
did it in the daytime. There may be instances where the circumstances may indicate positively, even in the
absence of any words coming from the accused, that night is being taken advantage of, but I am not ready to
say that it is so in this case under our consideration now.
Withal, following a decision of the Supreme Court of Spain (of February 28, 1884), this Court held in United
States vs. Baguio, 14 Phil. 240, that the appreciation of nocturnity as an aggravating circumstance (lies) in the
discretion of the court." I believe that the change I have referred to above in the phraseology of the pertinent
provision of our penal code has not deprived the Supreme Court of that discretion, particularly where the
question of whether the death penalty should be imposed or not hinges on the opinion of the Court as to the
presence or absence of such aggravating circumstance. For my part, therefore, after mature reflection and
deliberation in the light of the somehow unsettled construction of the specific pertinent penal provision, I feel
there is ample ground to hold, as I do hold, that the extant circumstances of the killing here in question do not
warrant the conclusion that nighttime should be appreciated as having aggravated the crime committed by
the accused, for the simple reason that the record is bare of any indication that the accused ever considered
the advantage of nighttime in the commission of the offense in question. In this connection, it might be
relevant to recall that in Boyles, supra, the accused had already pleaded guilty to the information which
charged nocturnidad, and still the Court, after hearing the evidence, discarded the same for want of evidence
of intent or design in that respect.
Coming now to the contention of appellant Ong that he should be credited with the mitigating circumstance
of plea of guilty, I agree with the main opinion that the contention is justified by the facts of record. To
reiterate, this appellant made it manifest from the start of the present proceedings in the court below that in
due time he would invoke Yturriaga, supra, because the prosecution was indicting him for an offense much
graver than what he had committed and was furthermore alleging aggravating circumstances unwarranted by
the facts he had confessed to or could be proven. As it has turned out, appellant's initial position as to the
offense he has committed and the circumstances attending the same is in the main the correct one. More
than that, if more effort had only been exerted by the fiscal to be as accurate as possible in designating the
offense imputable to the herein accused, the absence of the element of ransom would have been obvious to
him. It is not fair to level against anyone a charge of having committed an offense generally punishable with
death, which in itself should cause uncalculable mental torture, when with a little more deliberation and
study, it should be apparent that a lighter offense can sufficiently vindicate the public interest involved. I do
not mean to urge prosecuting officers to be unnecessarily liberal. What I wish to discourage is over
zealousness that can have unjust and oppressive consequences. The touchstone of a democratic criminal
prosecution is nothing less than fairness in the charge, the trial and conviction.

Section 4 of Rule 118 allows the accused, with the consent of the fiscal and the court, to "plead guilty of any
lesser offense than that charged which is necessarily included in the offense charged in the complaint or
information." Under this provision, once the consent of the fiscal and the court is secured, and upon the
information being correspondingly amended, the accused actually enters a plea of guilty, he is still entitled to
the benefit of the plea of guilty as a mitigating circumstance when the court sentences him for such lesser
offense, even if the offer, the amendment and the plea are made after the prosecution has started its
evidence, (People vs. Ortiz, 15 SCRA 352)albeit it may be mentioned that the reasoning pursued in this
decision is that after the amendment, the plea is to an entirely new information as to which no evidence has
yet been presented, thus adhering strictly to the language of Article 13 (7) of the Revised Penal Code requiring
that the accused should have "voluntarily confessed his guilt before the court prior to the presentation of the
evidence of the prosecution." Where no evidence has yet been presented by the prosecution, it is doubtless
that the benefit of the plea of guilty under the above provision inures to the accused. (People vs. Intal, 101
Phil. 306.) In People vs. Noble, 77 Phil. 93, where the accused offered to plead guilty to the lesser offense of
homicide instead of murder with which he was charged and the fiscal refused to agree, the Court held, after
finding the accused guilty of murder, that the mere offer to plead guilty to homicide was not a mitigating
circumstance.
In the case at bar, the Court is confronted with a situation in which the appellant offered to plead guilty to
precisely the lesser offense which he had confessed to from the start of the NBI investigation before his
arraignment. That offer was rejected by the fiscal, who, we must presume, was already in possession of all the
evidence which he eventually presented to the court, and which the court has found as not warranting at all
the graver charge of kidnapping for ransom with murder. Under these circumstances, I concur in the main
opinion that the following dictum in Yturriaga applies:
... It only remains to consider briefly whether the defendant's plea of guilty in the form it was
entered constitutes a voluntary confession of guilt before the court as defined in the same
subsection of article 13. We think it does.
Although the confession was qualified and introduction of evidence became necessary, the
qualification did not deny the defendant's guilt and, what is more, was subsequently fully
justified. It was not the defendant's fault that aggravating circumstances were erroneously
alleged in the information and mitigating circumstances omitted therefrom. If such qualification
could deprive the accused of the benefit of plea of guilty, then the prosecution could nullify this
mitigating circumstance by counteracting it with unfounded allegations of aggravating
circumstances.
The trial court refused to consider the foregoing ruling, taking the pragmatic view that inasmuch as it had
found the offense committed to be one punishable with the indivisible penalty of death, and, even if it were
murder, there were five aggravating circumstances present, it was inconsequential to discuss the applicability
of Yturriaga as in the end it would not affect the result. For the reasons I have already discussed above, it is
evident that His Honor's position cannot be sustained.
The main opinion also credits appellant Ong with a mitigating circumstance analogous to passion and
obfuscation. Indeed, in passing judgment over the criminal responsibility of this appellant, it is but just that
the Court should consider the cause or reason that must have impelled him to have Chua's life taken. After all,
he is not asking to be absolved. He has freely confessed his guilt; he is only seeking understanding of his
motives, hopefully to secure thereby whatever lightening effect the same may have on the penalty he would
have to undergo in atonement for his act. I am certain he does not expect the Court to exempt him from
criminal liability. In other words, he refers to the reasons for his crime not to justify it, but only to show

absence of real depravity or any inherent criminal nature. If he did premeditate and premeditating did persist
in going ahead with his decision to kill his friend, the urge was accidental, not inborn. The frequent and
persistent demands for payment of his gambling debts perhaps should have been expected, but the manner in
which these were made is something else. As already noted earlier, such importunings bothered the boss of
Ong, they annoyed and "scandalized" Ong's co-workers in the office, to whom he lost face being the assistant
manager; so much so that he had to give up his job. Then there were the veiled threats conveyed to Ong by Ko
King Pin that Chua was not a man to be provoked to anger, which Ong could not ignore, what with Chua's own
words, "If you treasure your life, you better pay first," and that he would turn over Ong's bouncing check "to
other people who will not be courteous anymore." Not every man is given the equanimity and calmness
needed to withstand all these without breaking down inwardly and feeling oppressively aggrieved. Under
these circumstances, it would not be an exaggeration to say that the urge in the feeling of appellant to kill his
tormentor was less than purely voluntary, which diminution is the basis of the mitigating circumstance
contemplated in Article 13 (5) of the Revised Penal Code. 2 (Reyes, Criminal Law, Vol. I, p. 250.) Indeed, rather
than consider the motive behind Ong's offense to be analogous to passion or obfuscation as the main opinion
does, I am more inclined to hold that the resolution to do away with the life of Chua "surged from the
resentment" of Ong over the importunings and threats of Chua and his companions, and inasmuch as evident
premeditation is being appreciated against him, in the fashion of People vs. Guzman, et al. L-7530, Aug. 30,
1958, he could be given, by analogy, the benefit of this mitigating circumstance. Anyway, it can be considered
alternatively with passion or obfuscation, with which it cannot co-exist. (People vs. Doniego, 9 SCRA 541.)
There is no definite criterion of what is a grave offense for the purposes of Article 13(5) of the Revised Penal
Code. Each case should be decided according to the peculiar milieu proven to have been the setting of the
offense. In People vs. Rosel, 66 Phil. 323, the Court held that the remark of the injured party before the guests
that the accused was living at the expense of his wife was such an offense under this article. Where the
injured party had insulted the father of the accused by contemptuously telling him: "Phse, ichura mong lalake"
(Pshaw, you are but a shrimp), the accused was held to have acted in vindication of a grave offense against his
father. And it matters not that the killing of Chua was not immediately after Ong was humiliated, threatened
and oppressed it being clear to me that the influence of such importunings lasted until the commission of the
offense. (People vs. Parana, 64 Phil. 331.)
I realize that the circumstances I have pointed out cannot justify the killing of Chua. But as I have already
stated carrier, this discussion is not intended to exonerate him. I have just looked, as it were, into the surely
perturbed mind of appellant in the night in question, to determine the degree of perversity and criminal
tendencies therein, and I am convinced that he was motivated by the circumstances I have elucidated on
rather than by pure criminality. At this point, I am not even taking into account, because of procedural and
technical impediments, that appellant Ong has filed a motion for new trial strongly indicating what at the trial
he behemently refused to divulge for reasons very personal to him, namely, that the deceased had made
amorous advances to his wife and attempted to rape her on April 15, 1971, which Chua asked in exchange for
her husband's gambling debt. No doubt, if the wife had testified to such facts at the trial, appellant would be
entitled to a full credit of the mitigating circumstance under discussion.
There is an additional circumstance which to me is important in measuring criminal responsibility of the
appellants in this case. I refer to the pecularity that were it not for the disclosures made by them in their
confessions and during the reenactment, the prosecution would have had no basis whatsoever for its attempt,
which the Court has frustrated by this decision, to make them answer for the graver offense of kidnapping for
ransom with murder accompanied by the string of aggravating circumstances listed in the information. One
cannot easily commiserate with killers, but considerations of human dignity and fairness demand that they are
not made to undergo any punishment more than the facts, the law and justice warrant. And the law is inclined
to be more liberal to those who after committing any offense evince by their conduct some signs of remorse

and resignation to accept the penalties that they deserve, by admitting their guilt. But in the present case,
appellant Ong has gone further. He did not only confess he and his co-accused killed the victim, he freely told
his investigators exactly what happened to its last details, thereby making himself subject to the charge of
aggravating circumstances, no other evidence of the government could have supported, considering how and
where the offense was committed and the difficulty of securing witnesses for the State to testify thereon. As I
have said earlier, without the help of the appellants, this would have been no more than a case of murder. In
view of this consideration, I believe it would only he consonant with existing rules in the appreciation of
mitigating circumstances that appellant Ong be credited with an additional mitigating circumstance analogous
to the plea of guilty.
As regards the case of appellant Quintos, I am struck by the evidence that at the last moment he refused to do
what he was assigned to do stab the victim. In other words, he did not carry out to its ultimate conclusion
the criminal design he had in common with his accused. Indeed, in my review of the record I have not
discerned any clear evidence of the specific participation of this appellant in the commission of the offense in
question. In the brief of the Solicitor General, the only imputation to Quintos is that he held the flashlight
while Tan was making Chua prepare a ransom note and that Quintos held the legs of the victim when his dead
body was dumped into the previously chosen hole for his burial. And there is a hint in the record to the effect
that. Quintos had his feet on top of Chua when the latter was being taken to the place of killing. As to the
alleged preparation of a ransom note, I have already demonstrated, it has not been proven beyond reasonable
doubt. This is also the holding in the main opinion. As to the other acts attributed to him, I am not satisfied of
their conclusiveness. And having in mind the undisputed desistance of this appellant, I would say that his
responsibility as principal does not satisfy my conscience. I hold him guilty only as accomplice because his act
of accompanying the other accused was an act of cooperation short of direct participation. .
Accordingly, my vote is to find appellant Benjamin Ong guilty as principal of the crime of murder, with the
aggravating circumstances of use of motor vehicle and evident premeditation although these are offset by the
mitigating circumstances of plea of guilty, passion or obfuscation alternatively with vindication of a grave
offense and the disclosure of all the details of the offense that enabled the prosecution to allege aggravating
circumstances which otherwise could not have been known, which in my opinion is analogous to the plea of
guilty but separate and distinct therefrom. In consequence, said appellant should suffer an indeterminate
sentence of from 12 years of prision mayor as minimum to 20 years of reclusion temporal as maximum, with
the accessory penalties of the law.
Likewise, I find the appellant Bienvenido Quintos guilty of murder, but only as an accomplice, with the
aggravating circumstances of evident premeditation and use of motor vehicle offset only by one mitigating
circumstance similar to that in the case of Ong which is analogous to the plea of guilty inasmuch as Quintos
also revealed details that the government would not have known otherwise. Accordingly, he should be
sentenced to 6 years of prision correccional as minimum to 17 years and 4 months of reclusion temporal as
maximum, with all the accessory penalties of the law.
In all other respects, I concur in the dispositive portion of the main opinion.
Before closing, I would like to explain that I had to prepare this separate opinion because I believe that in
order for me to save any person accused of a capital offense from the death penalty it must appear that from
a computation of the attending aggravating and mitigating circumstances, the death penalty is not imposable.
In other words, I cannot vote for less than the extreme penalty of death when the Court finds that there are
aggravating circumstances not sufficiently offset by mitigating circumstances.
Footnotes

1 "Sentence" Rollo, p. 40.

2 "Information", Rollo, pp. 2-3.
3 TSN, Records, September 22, 1971, 2:00 p.m., pp. 5-11.
4 Ibid, pp. 2, 4; "Extra-judicial Statement of Bienvenido Quintos," Exhibit "O", Records,
September 3, 1971, pp. 49-50.
5 TSN, Records, September 16, 1971, pp. 2-59.
6 TSN, Records, September 16, 1971, pp. 59-73.
7 Ibid.
8 Ibid, pp. 74-97.
9 TSN, Records, September 17, 1971, pp. 2-8.
10 Ibid, pp. 8-12.
11 Ibid, pp. 12-23.
12 Ibid, pp. 2-88.
13 TSN, Records, September 20, 1971, pp. 2-32.
14 TSN, Records, September 21, 1971, 2:00 p.m., pp. 3-13.
16 Ibid, pp. 17-35.
17 Ibid, pp. 2-100.
18 TSN, Records, September 22, 1971, 2:00 p.m., pp. 3-90.
19 Extra-judicial Statement of Benjamin Ong, Exhibit "N", Records, September 1, 1971, p. 43.
20 TSN, Records, September 22, 1971, p. 30.
21 TSN Records, September 16, 1971, pp. 22-23.
22 TSN, Records, September 22, 1971, p. 31.
23 Brief for the Accused Benjamin Ong y Kho, p. 91.
24 "Supplementary Sworn Statement of Bienvenido Quintos," Exhibit "Q", Records, September
4, 1971, p. 63.
25 TSN, Records, September 22, 1971, pp. 26-28.

26 "Extrajudicial Statement of Benjamin Ong." Exhibit "N", Records, September 1, 1971, p. 46.
27 Article 267 of the Revised Penal Code, as amended provides:
ART. 267. Kidnapping and serious illegal detention. Any private individual who shall kidnap or
detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of
reclusion perpetua to death:
1. If the kidnapping or detention shall have lasted more than five days.
2. If it shall have been committed simulating public authority.
3. If any serious physical injuries shall have been inflicted upon the person kidnapped or
detained; or if threats to kill him shall have been made.
4. If the person kidnapped or detained shall be a minor, female or a public officer.
The penalty shall be death when the kidnapping or detention was committed for the purpose of
extorting ransom from the victim or any other person, even if none of the circumstances above
mentioned were present in the commission of the offense. (As amended by Rep. Acts Nos. 18
and 1084, effective June 15, 1954, emphasis ours.)"
28 Brief for the Defendant-Appellant (Bienvenido Quintos), pp. 56; Brief for the PlaintiffAppellee, p. 10.
29 TSN, Records, September 18, 1971, p. 8.
30 TSN, Records, September 22, 1971, p. 31.
31 Brief for the Plaintiff-Appellee, p. 6.
32 Ibid., p. 7.
33 Ibid.
34 Ibid., pp. 13-14.
35 Ibid., p. 14.
36 Ibid.
37 Ibid.
38 Ibid.
39 Ibid.
40 Pictures, Exhibit "P" to "P-20", Records.
41 86 Phil. 534 (1950).

42 "Manifestation," September 14, 1971, Records, pp. 24-25.

43 "Brief for the Accused Benjamin Ong y Kho," pp. a-d.
44 "Brief for the Defendant-Appellant (Bienvenido Quintos)," pp. 17, 31, 37.
45 L-33698, December 20, 1973, 54 SCRA 335, 344.
46 TSN, Records, September 22, 1971, pp. 63-65, 73, 77.
47 "Medical Certificates," September 23 and 27, 1971, Records, pp. 108-109; "Case Record,"
Exhibit "4a-b," Records, pp. 118-121.
48 Brief for the Plaintiff-Appellee, p. 10.
49 TSN, Records, September 22, 1971, pp. 27-28.
50 TSN, Records, September 18, 1971, pp. 9-10; Extrajudicial Statement of Bienvenido Quintos,
Exhibit "O", Records, September 3, 1971, p. 48.
51 People vs. Suday, L-33572, Oct. 10, 1974; People vs. Antonio, L-25845, August 25, 1970, 34
SCRA 401; U.S. vs. Indanan, 24 Phil. 203 (1913); U.S. vs. Colombo, 8 Phil. 391 (1907); U. S. vs.
Cobe, 1 Phil. 265 (1902).
52 People vs. Mojica, L-17234, March 31, 1964, 10 SCRA 515.
53 People vs. Carandang, et al., 54 Phil 503 (1930).
54 People vs. Ordiales, L-30956, 1971, Nov. 23, 1971, 42 SCRA 238; People vs. Brioso L-28482,
Jan. 30, 1971, 37 SCRA 336; People vs. Espejo, L-27708, Dec. 19, 1970, 36 SCRA 400; People vs.
Layson, L-25177, Oct. 31, 1969, 30 SCRA 92; People vs. Lumantas, L-28355, July 17, 1969, 28
SCRA 764; People vs. Nabual, L-27758, July 14, 1969, 28 SCRA 747; People vs. Reyes, L-21445,
May 30, 1967, 20 SCRA 304; People vs. Agustin, L-18368, March 31, 1966, 16 SCRA 467; People
vs. Develes, L-18866, Jan. 31, 1966, 16 SCRA 47; People vs. Redona, 87 Phil. 743 (1950): People
vs. Mabe, 81 Phil. 58 (1948).
55 L-20183, June 30, l966, 17 SCRA 520.
56 See also the cases of People vs. Luna, L-28812, July 31, 1974, 58 SCRA 148; People vs. Sera
Josep, 52 Phil, 206 (1928); U.S. vs. Perez, 32 Phil. 163 (1915): U.S. vs. Bredejo and Sudoles, 21
Phil, 23 (1911): U.S. vs. Salgado, 11 Phil. 56 (1908).
57 People vs. Villas, L-20953, April 21, 1969, 27 SCRA 947; People vs. Apduhan, L-19491, August
30, 1968, 24 SCRA 801; People vs. Baubay, L-13901, September 19, 1961, 3 SCRA 24: People vs.
Corpuz, L-10104. January 28, 1961, 1 SCRA 33.
58 People vs. Cornelio, L-1289, June 10, 1971, 39 SCRA 435; People vs. Arpa, L-26789, April 25,
1969, 27 SCRA 1037; People vs. Luneta, 79 Phil. 815 (1947); People vs. Aguinaldo, 55 Phil. 610
(1931).

59 "Sentence," Rollo, p. 36.

60 U.S. vs. Rodriguez, 19 Phil. 150 (1911).
61 People vs. Luchico, 49 Phil. 689 (1926).
62 TSN, Records, September 22, 1971, p. 23.
63 4 Phil. 252, 255 (1905).
64 CA, 36 O. G. 858 (1937).
65 People vs. Mitra, et al., 107 Phil. 851 (1960); People vs. Fortin, 97 Phil. 983 (1955); People vs.
Valeriano, 90 Phil. 15 (1951); People vs. Cruz, 85 Phil. 577 (1950).
66 People vs. Llanera, L-21604-6, May 25, 1973, 1 SCRA 48; People vs. Dayug and Bannoisan, 49
Phil. 423 (1926); U.S. vs. Rivera, 41 Phil. 472 (1921).
67 TSN, Records, September 16, 1971, pp. 127-128.
68 "Supplementary Extrajudicial Statement of Bienvenido Quintos."
69 "Extra-judicial Statement of Benjamin Ong Exhibit "N", Records, September 1, 1971, p. 41.
70 Ibid, p. 45.
71 TSN, Records, September 17, 1971, pp. 2-8.
72 People vs. Hanasan, L-25989, September 30, 1969, 29 SCRA 534; People vs. Sarmiento, L19146, May 31, 1963, 8 SCRA 263; People vs. Bautista, 79 Phil. 652 (1947).
73 86 Phil. 534, 539 (1950).
74 Brief for the Appellant Benjamin Ong, pp. 121-123, 124.
75 "Petition for New Trial and/or to Consider Case as Simple Murder," Rollo, p. 188.
76 TSN, Records, September 22, 1971, pp. 3, 41-47.
BARREDO, J., CONCURRING AND DISSENTING:
1 Justices Malcolm and Goddard also dissented but on a different ground. While the majority
held that the crime committed was homicide, these dissenters opined it was murder qualified
treachery.
2 "That the act was committed in the immediate vindication of a grave offense to the one
committing the felony (delito), his spouse, ascendants, descendants, legitimate, natural, or
adopted brothers or sisters or relatives by affinity within the same degrees."

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. L-38624 July 25, 1975

THE PEOPLE OF THE PHILIPPINES, plaintiff and appellee,
vs.
CONRADO BAUTISTA and GERARDO ABUHIN, defendants and appellants.
Natividad Maravilla Dato as Counsel de Oficio for appellants.
Office of the Solicitor General Estelito P. Mendoza, Assistant Solicitor General Guillermo C. Nakar, Jr., and Celia
Lipana-Reyes for appellee.

PER CURIAM:
Mandatory review of the death penalty imposed by the Circuit Criminal Court of Pasig, Rizal in its decision in
case "CC-VII-847-Rizal" for Murder, entitled "People vs. Conrado Bautista and Gerardo Abuhin", the dispositive
part of which reads as follows:
WHEREFORE, finding the accused, Conrado Bautista and Gerardo Abuhin, GUILTY, beyond
reasonable doubt, of the crime of Murder, under Article 248 of the Revised Penal Code, as
charged in the information, the Court hereby sentences each one of them to suffer the penalty
of DEATH; to indemnify the heirs of the offended party the amount of P12,000.00; to pay the
amount of P5,000.00 as moral damages; and another P5,000.00 as exemplary damages; and to
pay their proportionate shares of the costs.
Prisoners George Daeng, No, 56088-P; Rolando Castillo, No. 31087-C (these two already sentenced
previously); Conrado Bautista, No. 71055-P; Gerardo Abuhin, No. 61409-P who are serving sentence by virtue
of final judgment, in the New Bilibid Prison, Muntinlupa, Rizal, were accused of Murder, committed as follows:
.
That on or about December 13, 1970, in the New Bilibid Prison, Muntinglupa, Rizal, Philippines,
and within the jurisdiction of this Honorable Court, the said accused while then confined at the
said institution, conspiring, confederating and acting together and each armed with improvised
deadly weapons, did, then and there wilfully, unlawfully and feloniously assault and would
therewith one Basilio Beltran, No. 71495-P, another convicted prisoner serving final sentence in
the same institution, then in the process of serving the accused breakfast, inflicting upon him
multiple stab wounds while then unarmed and unable to defend himself from the attack
launched by the accused, as a result of which the said Basilio Beltran died instantly.

That the offense when committed by the accused was attended by the qualifying circumstance
of treachery and generic aggravating circumstances of evident premeditation and obvious
ungratefulness.
CONTRARY TO LAW.
Both accused Conrado Bautista and Gerardo Abuhin were arraigned on March 10, 1973, and they pleaded not
guilty, after which the case went to trial on the merits. The evidence for the prosecution established the
following facts:
That on or about 6:15 in the morning of December 13, 1970, a stabbing incident took place near
the door of 8-C (cell house) at building 8; that the victim in said stabbing incident was Basilio
Beltran who was also a prisoner in the New Bilibid Prison with the rank of IC (Inmate Cadet);
that on said date and time, while prison guard Armando Miranda, assigned keeper at Building 8
was then opening the door of 8-C, where members of the Sigue-Sigue Sputnik Gang were
confined, with him were IC Basilio Beltran and Domingo Mallari, both confined at dormitory 8A-2, who were then carrying bread ration for breakfast of the Sigue-Sigue Sputnik Gang at 8-C,
when all of a sudden, the four accused, two of whom were already sentenced, and two of
whom were Conrado Bautista and Gerardo Abuhin, rushed out from their cell and attacked and
stabbed to death prisoner Basilio Beltran, while Domingo Mallari sneaked away from the
attackers; that the victim, Basilio Beltran, was facing the accused, standing, carrying the
breakfast ration for the occupants of 8-C when he was almost simultaneously stabbed by his
attackers as a result of which he sustained multiple stab wounds, numbering 12 in all, on the
different parts of his body; that the weapons used in stabbing the victim were matalas or
improvised deadly instruments; and an icepick which is improvised also; that the accused were
investigated by the investigators and they admitted having killed the victim because of an
alleged threat by the inmates cadets that they would kill any member of the Sigue-Sigue
Sputnik Gang everytime that the IC delivered their ration, so that they moved ahead of the IC
by taking that opportunity.
Their defenses of denial and alibi based on testimonial evidence of the accused, and their claim that their
written statements admitting the crime were extracted from them by force and intimidation, consisted of:
The accused Conrado Bautista was placed on the witness stand and he testified that he was 28
years old, married and a woodcarver by Occupation and formerly residing at 2504 Cagayan St.,
Sta. Ana, Manila, but now an inmate of the New Bilibid Prison, Muntinglupa, Rizal, after having
been convicted by final judgment for the crane of Robbery. In the course of the direct
examination by counsel de oficio, Atty. Leonora M. Cabasal, accused Bautista intimated to his
counsel that he be allowed to withdraw his former plea of not guilty and that he be allowed to
substitute it with a plea of guilty. He was asked by his counsel, if he realized the gravity of the
offense that he has committed and he manifested that he realized the same; that he realized
the fact and he is aware that he would be penalized in accordance with law; that he is
determined to change his life because he wanted to be free, after serving his sentence.
However, during the cross examination of the prosecution when he was asked if he helped the
other accused, namely: Gerardo Abuhin, Rolando Castillo and George Daeng, in stabbing the
victim, Basilio Beltran, he answered in the negative, alleging that he was inside the bartolina in
that morning of December 13, 1970, when the victim was stabbed to death, and he only
admitted as a participant in the killing of the victim because Boy Coro (a Alfredo Mariano poked
him with an improvised weapon; that this Boy Coro according to him was the leader of the

Sputnik Gang and he was very powerful because Boy Coro was the one giving orders and they
were mere followers; that the statement he allegedly signed was not really his own statement
but that of the investigator who forced him to sign the same through force and intimidation
and maltreatment, but he did not file any charge against said investigator according because
according him he does not know anything about filing charges. With this manifestation of the
accused Conrado Bautista, the counsel de oficio moved that the former plea of not guilty of said
accused be allowed to remain on record, which was granted by the Court, there being no
objection on the part of the prosecution. So also, the defense of the accused Gerardo Abuhin
that he was lying down on his cell when he suddenly heard a commotion and he stook up and
took his weapon, when he saw many people coming out and he heard someone shouting,
"everybody must come out"; that what was stated in his statement was not the real happening,
because it was only his gawa-gawa, knowing that Sarmiento and Coro were very powerful in
their cell and if he would not follow, something might be done against him; that it was not true
that his co-accused Bautista was involved in the stabbing and his conscience would not forgive
him to implicate a man who was not really a participant in that riot; that he was not able to add
in his statement that Bautista was not guilty because he was not asked about it and it did not
occur to his mind to exculpate him in the course of his giving a statement to the investigator;
and that it would be against his conscience if he would let Bautista suffer for anything that he
did not commit; that he was intimidated by investigator de las Alas into giving an extrajudicial
confession and out of fear he signed the same.
We have gone to great lengths in closely scrutinizing the evidence presented in this case, and no amount of
deeper probing can convince Us that the trial court committed any reversible error in basing its judgment of
conviction "on the testimonies of the prosecution eye witnesses corroborating the statements in the
extrajudicial confessions of the accused" (Exh. "C-4"; Exh. "C-5").
An examination of the corroborated sworn statements of accused Rolando Castillo (already sentenced on a
plea of guilty, September 15, 1973) Exh. "C-1"; of Prison guard Armando Miranda, Exhibit "C-2"; of accused
George Daeng (already sentenced on a plea of guilty, September 1, 1973), Exh. "C-3"; of accused Conrado
Bautista, Exh. "C-4" of accused Gerardo Abuhin, Exh. "C-5"; and of prisoner (inmate cadet) Domingo Mallari,
Exh. "D", shows that on the morning of December 13, 1970, at around 6:15 A.M., while prison guard Armando
Miranda accompanied by Inmate Cadets Basilio Beltran (victim) and Domingo Mallari who carried bread and
coffee, were about to give food to the prisoners in "Brigada 8-C" under the stairs of "Brigada 8-A-2", located at
New Bilibid Prison, Muntinlupa, Rizal, four prisoners, accused Rolando Castillo, George Daeng, Conrado
Bautista, and Gerardo Abuhin, all armed with "matalas" (improvised deadly weapons) suddenly pushed the
cell door and rushed out. While one of the four (Rolando Castillo) suddenly pointed his weapon at prison
guard Miranda, the other three simultaneously attacked and stabbed inmate cadet Basilio Beltran; that
accused Rolando Castillo joined the three others in stabbing the already prostrate victim; and the attack
happened so suddenly that it did not take half a minute for the four accused to kill the victim. The other
inmate cadet, Domingo Mallari, was able to get away and give the alarm. Witness Domingo Mallari in his
sworn statement Exh. "D" was able to identify by their appearance, not by name, the four accused (Castillo,
Abuhin, Bautista and Daeng) out of ten prisoners in a line-up, as the prisoners who stabbed the victim. This
same witness stated that it was accused Conrado Bautista who first stabbed the victim.
We noticed from the sworn statements that they were all taken during the investigation immediately
conducted on the very day of the crime, December 13, 1970, except that of prison guard Armando Miranda
which was taken on December 15, 1970. The sworn statement (Exh. "C-1") of accused Castillo given before PG
Investigator, IS Ignacio J. Ferrer, was taken in the presence of prison guard-investigator Jesus B. Tomagan,
Chief Investigator Benedicto R. Planta and Administrative Officer Exequiel A. Santos. The sworn statement

(Exh. "C-3") of accused George Daeng given before P.F. Jesus B. Tomagan was taken in the presence of
Security Officer B.R. Planta, P.G. Ignacio Ferrer and Administrative Officer Exequiel A. Santos. The sworn
statement (Exh. "C-4") of accused Conrado Bautista given before P.G. Jesus B. Tomagan was taken in the
presence of Chief Investigator Benedicto R. Planta, Investigator Ignacio Ferrer and Administrative Officer
Exequiel A. Santos. The sworn statement (Exh. "C-5") of accused Gerardo Abuhin given before P. G. Abraham
de las Alas was taken in the presence of P. G. Ignacio J. Ferrer, P. G. Jesus B. Tomagan and Administrative
Officer Exequiel A. Santos.
The alleged threat and intimidation used in assailing the voluntariness of the extrajudicial confessions of the
four accused, being general in nature, becomes hardly credible in the face of the overwhelming established
facts and circumstances, as for instance (1) the judicial plea of guilty of accused Castillo and Daeng (both of
whom were already sentenced); (2) the very apparently disinterested and truthful narrations of prison guard
Miranda and inmate cadet Mallari who were eye-witnesses to the crime and who positively identified the four
accused as the persons who stabbed the victim, there being no other prisoners who at that moment of the
crime could have participated in it; (3) the manifestly spontaneous narrations of the circumstances that
happened during the crime appearing in the sworn statements that were executed on the very day the crime
was committed, when those who participated and who witnessed the crime did not have sufficient time to
fabricate evidence and distort the truth; (4) the fact that it would be difficult to presume that those
disinterested investigators who were present when the accused gave their sworn statements would subvert
the ends of justice and falsify the truth by utilizing force and intimidation on the accused, there being no
indication nor evidence that they have a motive or grudge against the accused; (5) and the fact that those
officials of the Bureau of Prisons were merely doing their duties in the regular course of official business when
they conducted the investigation to shed light on the crime committed.
The narration of the crime contained in the sworn statement of prisoner Domingo Mallari (Exh. "D") who was
an eyewitness to the crime substantially coincides with his testimony in court in all material aspects and he
was able to identify the four accused (Castillo, Abuhin, Daeng, Bautista) when asked to do so during the trial
(pp. 7-25 t.s.n. Hearing on August 25, 1973). The four improvised deadly weapons used by the accused in
killing the victim were all recovered and identified (pp. 3-8; 14-15, t.s.n. Hearing of September 1,
1973.).1wph1.t Prison guard Armando Miranda's testimony in court clearly corroborated all his narrations
contained in his sworn statement Exh. "C-2", pointing out without doubt that the accused Bautista, Abuhin,
Castillo and Daeng were the prisoners who rushed out of their cell and stabbed the victim, Beltran, in the early
morning of December 13, 1970 (t.s.n. pp. 2-11, Hearing of April 28, 1973).
Accused Abuhin in his testimony in open court admitted that he participated in the killing and stabbed twice,
although he said he did so because he was hit and wounded by a knife thrown from above (p. 5 t.s.n. Hearing
of November 29, 1973). He declared that he gave his sworn statement, Exh. "C-5", voluntarily Cpp. 6-7 t.s.n.
Hearing of November 29, 1973). Accused Bautista admitted in open court that the signature appearing on
Exhibit "C-4" (his sworn statement) is his (p. 7 t.s.n. Hearing of December 13, 1973). He claimed that he was
maltreated by investigator Ferrer to extract from him the confession contained in his sworn statement. Yet he
could not explain why notwithstanding the supposed injuries inflicted on him, he could sign the sworn
statement calmly without signs of nervousness or trembling; he was not treated for his supposed injuries, was
never hospitalized for them, and never reported the supposed maltreatment to Administrative Officer
Exequiel A. Santos whom he treated like a father (pp. 7-9 t.s.n. Hearing of December 13, 1973).
Accused Bautista's very weak alibi was that on the morning of December 13, 1970, when the crime was
committed he was sleeping in his cell (pp. 9-10 t.s.n. Hearing of December 13, 1973). Witness Antonio
Juaningco, another prisoner, tried to substantiate Bautista's alibi by testifying that on the morning of
December 13, 1970, accused Bautista was with him sleeping in cell no. 9 and went out because they were

awakened by a commotion and then saw the victim Beltran already dead (p. 21 t.s.n. Hearing of December 13,
1973).1wph1.t Accused Abuhin when recalled to the witness stand did a complete somersault on his
previous testimony implicating Bautista when he stated that on that occasion he did not see Bautista (p. 28
t.s.n. Hearing of December 13, 1973). The trial court did not commit any mistake in not giving credit to the
alibi of accused Bautista, for aside from its inherent weakness as a defense, unsupported as it is by credible
evidence, his alibi cannot stand against the positive identification made by prison guard Miranda, witness
Mallari, and the very damaging sworn statements of his co-accused Castillo and Daeng both of whom, by their
plea of guilty, had been previously sentenced for the same crime with which Bautista is charged. We consider
of little significance the belated testimony of Castillo, after he was convicted and sentenced, that Bautista was
not a participant in the crime (pp. 2-6 t.s.n. Hearing of January 21, 1974). We are more inclined to give more
credence to his sworn statement (Exh. "C-1") given on the very date of the crime, considering that Castillo had
pleaded guilty to the crime of murder and he has nothing more to lose in subsequently repudiating his
previous narration of the crime implicating his co-accused Bautista. It is likewise considered of no moment
that another witness, prisoner Benito Balagtas, testified that when the crime was committed in the early
morning of December 13, 1970, accused Bautista was sleeping in cell no. 13 (p. 4 t.s.n. Hearing of March 8,
1974).1wph1.t It is very significant that while defense witness Antonio Juaningco testified that on the
morning of December 13, 1970, accused Bautista was with him sleeping in cell no. 9, this defense witness
Balagtas in turn testified that accused Bautista was sleeping in cell no. 13 on the very same occasion. What a
tragedy for the accused and a significant victory for truth that even the very witnesses presented to establish
an alibi for accused Bautista contradicted themselves on a very material point. Neither do We give credence to
the testimony of witness Ricardo Felix, another prisoner, that on the morning of December 13, 1970,
immediately after the killing of victim Beltran, he saw prisoner Daeng, Boy Coro and Rolando Castillo "poking a
knife to Bautista" and threatening said Bautista to admit the crime.
We consider it an exercise in futility to discuss further the alleged errors committed by the trial court in
considering as generic aggravating circumstances the presence of obvious ungratefulness and evident
premeditation so as to impose the maximum penalty of death, because Article 160 of the Revised Penal Code
succintly provides that "any person who shall commit a felony after having been convicted by final judgment,
..., or while serving the same, shall be punished by the maximum period of the penalty prescribed by law for
the new felony". In passing, however, it may be stated that the consideration of mitigating and aggravating
circumstances is for the purpose of fixing the proper penalty within the minimum, medium or maximum as
provided by law, but We have no choice here other than to impose the maximum because by mandate of
Article 160 of the Revised Penal Code a person convicted of a crime while serving sentence for a previous
crime shall get the maximum of the penalty prescribed by law for the new felony (murder), which is death,
without further regard of the effect of mitigating or aggravating circumstance, or the complete absence
thereof.
The trial court correctly considered the qualifying circumstance of treachery in the commission of the crime of
murder. It was conclusively proven that the accused in a sudden, concerted and unprovoked act, all of them
being armed with improvised deadly weapons, stabbed the victim to death after pushing their cell door open,
threatening and throwing off-guard Miranda when the victim who was holding in both hands the bread and
coffee intended for the breakfast of the assailants was not in a position to defend himself from the
unexpected assault.
As to the existence of evident premeditation, it was established by the following circumstances: (1) the
sudden concerted attack, perpetrated and calculated to throw off guard the intended victim as he was in the
act of giving food to the assailants, which attack necessarily must have been planned; (2) that all of the
accused were armed with improvised deadly weapons which they were not supposed to possess and which
they must have secretly prepared for a long time for committing the crime; and (3) the admission on the part

of the accused in their sworn statements that they killed the victim by "attacking first" because they had heard
that the members of the rival gang would liquidate them, leading to the conclusion that the accused must
have planned how to counteract the supposed attack of the rival gang by literally beating the latter to the
draw.
The aggravating circumstance of obvious ungratefulness was present as the victim was suddenly attacked
while in the act of giving the assailants their bread and coffee for breakfast. Instead of being grateful to the
victim, at least by doing him no harm, they took advantage of his helplessness when his two arms were used
for carrying their food, thus preventing him from defending himself from the sudden attack.
IN THE LIGHT OF ALL THE FOREGOING CONSIDERATIONS, the requirements of moral certainty in the
evaluation of evidence have been more than adequately met. We have no other alternative than to affirm the
penalty of death imposed by the trial court, and all other parts of the judgment.
Costs against the accused.
SO ORDERED.
Makalintal, C.J., Castro, Fernando, Barredo, Makasiar, Antonio, Esguerra, Muoz Palma, Aquino, Concepcion
Jr. and Martin, JJ., concur.
Teehankee, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 131117

June 14, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
NELSON CARIO, DOMINGO BANHAON, LUIS CORCOLON, ROGELIO "BOY" CORCOLON,
JOSELITO "LITO" CALONG-CALONG and "BOY PANSIT," appellants.
DOMINGO BANHAON, LUIS CORCOLON, ROGELIO "BOY" CORCOLON, and JOSELITO "LITO" CALONGCALONG, appellants.
DECISION
CALLEJO, SR., J.:
Before the Court is the appeal of the Decision1 of the Regional Trial Court of Pasig City, Branch 160, in Criminal
Case No. 107788-H, finding the appellants guilty beyond reasonable doubt of murder, qualified by treachery,
sentencing all of them to suffer the penalty of reclusion perpetua and ordering them to indemnify, jointly and
severally, the heirs of the deceased Ruben A. Velecina in the amount of P50,000; and to pay the said
heirsP20,000 as moral damages; and, P10,000 as exemplary damages.
On March 3, 1994, accused Nelson Cario, "Boy Pansit," appellants Domingo Banhaon, Luis Corcolon, Rogelio
"Boy" Corcolon and Lito Calong-Calong were charged with murder in the Regional Trial Court of Calamba,
Laguna, originally docketed as Criminal Case No. 3953-94-C. On March 2, 1998, the Court resolved to transfer
the case to the Regional Trial Court of Pasig City. The case was re-docketed and raffled to Branch 160 thereof.
The accusatory portion of the information reads as follows:
That on or about July 30, 1989 at Barangay Bayog, Los Baos, Laguna and within the jurisdiction of this
Honorable Court, the above-named accused conspiring and confederating together and mutually
helping each other and with treachery, abuse of superior strength and with the aid of armed men, did
then and there wilfully, unlawfully and feloniously with intent to kill, attack, assault and employ
violence upon the person of Ruben Velecina by then and there shooting him with powerful firearms
thereby inflicting upon him serious and mortal injuries in the different parts of his body which directly
caused his death to the damage and prejudice of his surviving heirs.2
Except for Nelson Cario and "Boy Pansit" who remained at large, the rest of the accused were arrested.
When arraigned, the accused, assisted by counsel, entered their respective plea of not guilty.
The Case for the Prosecution
Leopoldo Cario and his brother, Nelson Cario, Luis Corcolon, Rogelio (Boy) Corcolon, Lito Calong-Calong,
Domingo Banhaon, "Boy Pansit" and Norberto Ongjuatco were bodyguards of Mayor Antonio Sanchez of
Calauan, Laguna. Leopoldo was gunned down by an unknown assailant, and Mayor Sanchez suspected that the
following persons were involved in the killing: Ruben Velecina; his mother, Atanacia Velecina; his brother who

was a tricycle driver, Valentin Velecina; Bernardo Velecina; and Recto Aniceto, all residents of Los Baos,
Laguna.
Nelson Cario was reported to have killed Bernardo Velecina, while Recto Aniceto was reportedly shot by the
group of Lito Calong-Calong. Norberto Ongjuatco, one of the bodyguards of Mayor Sanchez, secretly warned
Valentin to be careful. When apprised of the impending peril to their lives, Valentin, Ruben and their mother,
Atanacia, were afraid that they would be killed next on orders of Mayor Sanchez.
Isidro Velecina and Dory Perez were to be wed on July 30, 1989. A pre-nuptial party was set in the evening of
July 29, 1989, to be held in the yard of the Perez residence at Barangay Bayog, Los Baos, Laguna. Roger Perez,
Dorys father, invited his friends, and among them was Edwin Botero, a former soldier in the Philippine Army
and a security guard employed at the Philippine Long Distance Company. Ruben Velecina, Isidros father, also
invited guests of his own. Rubens brother, Valentin, arrived at the house with his family at about 7:00p.m. His
wife, Ofelia, his mother, Atanacia, and his son Rowel were with him. Valentin, Edwin and other guests had a
drinking spree in front of the house where the other guests were dancing and singing. The house was made of
bamboo and wood.
Between 12:30 and 1:00 a.m., July 30, 1989, Edwin noticed a white Ford Fiera with plate number 777 stop in
front of the alley leading to Rogers house, about twenty (20) meters from where he and his friends were
drinking Tanduay. The Fiera was followed by a tricycle and a galvanized owner-type jeep driven by "Boy
Pansit." Edwin saw that Mayor Sanchez was inside the Fiera, along with two others who were seated at the
backseat; beside "Boy Pansit" was Lito Corcolon. The latter alighted from the jeepney, approached Edwin and
asked him if Ruben and Roger, the fathers of the persons to be wed, were inside the house. Edwin replied in
the affirmative.3 Thereafter, Lito Corcolon returned to the Ford Fiera and whispered something to Mayor
Sanchez.4 The Ford Fiera then drove away.
Lito Corcolon, Rogelio Corcolon, Nelson Cario, "Boy Pansit," Lito Calong-Calong and Domingo Banhaon then
alighted from the jeepney and entered the alley leading to the Perez residence. They posted themselves near
the kitchen. When Valentin Velecina saw Mayor Sanchez men arrive, he posted himself in a dark place near
the chicken coop, about seven (7) meters from the western side of the house. Valentin could see the kitchen
from where he was. He could also see the bodyguards of Mayor Sanchez, all of whom were armed with short
handguns.
Momentarily, Carlos Medel, Valentins cousin arrived near the chicken coop to urinate. When he saw Carlos,
Valentin pulled his leg and told him to go to the kitchen to tell his brother, Ruben, and his mother, Atanacia,
that the bodyguards of Mayor Sanchez were in the vicinity. Carlos obliged and left. Meanwhile, Ruben went to
the comfort room which was near the kitchen sink and was covered by bamboo slits. As he emerged from the
comfort room, Nelson Cario, Lito Calong-Calong, Rogelio and Lito Corcolon aimed their guns at the kitchen
and fired successively. "Boy Pansit" and Domingo Banhaon pulled out their guns and acted as lookouts.
People hurriedly scampered away when they heard the gunfire. There were shouts of: "May patay, may
patay!" Momentarily, Nelson Cario told his companions: "Tayo na, yari na iyan." The six bodyguards of
Mayor Sanchez then left the scene and boarded the jeepney. Edwin and Valentin heard two more gunshots
coming from the direction of the jeep, after which the vehicle sped away.
Meanwhile, Valentin remained behind the chicken coop until he felt that it was safe for him to come out.
Momentarily, he heard his brother, Ruben, cry out, "Ate Uping, may tama ako."5 Valentin rushed to the
kitchen and saw Ruben lying on the floor, mortally wounded.

Isidro Velecina and Roger Perez reported the incident to the police. Policemen, including Wilfredo Palacpac
and Oscar Ampao, rushed to the scene,6 and saw the cadaver of Ruben lying on the ground, face down. The
policemen recovered five empty shells fired from a .45 caliber gun, as well as slugs which were embedded on
the cement walls of the house. In the course of the policemens on-the-spot investigation, no one ventured to
identify the perpetrators. The shooting incident was recorded in the police blotter.
Dr. Ruben B. Escueta, the Rural Health Physician of Calauan, Laguna, conducted an autopsy on the cadaver of
Ruben Velecina and submitted a report of his findings, viz:
NECROPSY FINDING
General Survey
Well develop (sic), well nourish (sic), male, white complexion measuring 165 cms. and weighing about
130 lbs. Wearing checkered and white and black brief and bearing gun shot (sic) wounds on different
parts of the body.
REGIONAL EXAMINATION
Head No Injury
Face No Injury
Neck and Nape No Injury
Chest
1). Through and through gun shot (sic) wound on the left lateral side of the chest to the right lateral
side. The point of entrance is located between the 5th and 6th ribs. Its entrance measure 1 cm. in
length and 1 cm. in width. The point of exit is located between the 9th and 10th rib on the right lateral
side of the chest, measuring 2 cms. in length and 1.5 cms. in width.
Back
2) Through and through gun shot (sic) wound on the right side of the back. Through the left side. The
point of entrance located between 4th and 5th ribs medial portion measuring 1 cm. in width. The point
of exit is located at the lateral side of the chest between the 9th and 10th ribs measuring 2 cms. in
length and 1.5 cms. in width.
3) Through and through gun shot (sic) wound on the right flank wound between the 2nd and 3rd
lumbar vertebrae through posterior portion of the chest between the 9th and 10th ribs left side of the
chest. The point of entrance is located between the 2nd and 3rd lumbar vertebrae measuring 1 cm. in
length and 1 cm. in width. The point of exit is located between the 9th and 10th ribs, lateral side of the
chest. Measuring 2.5 cms. in length and 1.5 cms. in width.
4) Through and through gun shot (sic) wound on the left lumbar area. Located at the level of 6th
vertebrae, through left waist line (sic). The point of entrance is located at the level of 6th lumbar
vertebrae. Measuring 1 cm. in length and 1 cm. in width. The point of exit is located at the left
waistline. Measuring 2.5 cms. in length and 1.5 cms. in width.

EXTREMITIES
Upper extremities
Right
5) Through and through gun shot (sic) wound on the right shoulder through the left lateral side of the
chest. The point of entrance is located on the tip of the right shoulder measuring 1 cm. in length and 1
cm. in width. The point of exit is located on the left lateral side of the chest between the 5th and 6th
ribs.
6) Left upper extremity
Gun shot (sic) wound on the medial portion of the left forearm. The point of entrance is located on the
lateral medial portion of left forearm measuring 1 cm. in length and 1 cm. in width. The bullet lodge
(sic) on the medial portion of the humerous (sic).
Lower Extremity
Right Lower Extremity No Injury
Left Lower extremity
Through and through gun shot (sic) wound on the medial portion of left thigh. The point of entrance is
lateral medial portion of left thigh measuring 1 cm. in length and 1 cm. in width. The point of exit is
located on the inner medial portion of the left thigh. Measuring 2.5 cms. in length and 1.5 cms. in
width.
AUTOPSY FINDING
Head
Cranial vault No injury
Brain tissue pale in appearance with collapsed blood vessel
Chest
Bonythorax
Fracture on the medial portion of 10th rib left side of the chest.
-through and through gun shot (sic) on the left upper lobe of the
lungs
Right lungs congested
Heart laceration of the paracardiac soc (sic).

laceration of the posterior portion of the ventricle.

laceration of the coronary blood vessel.
Abdominal Cavity laceration of peretonial (sic) covering of the abdomen.
laceration of anterior lobe of the liver.
Laceration of the rectus muscle on the muscle on the right side of the abdomen
Extremities upper right extremity
laceration of the deltoid muscle blood vessel on the right shoulder
REMARKS:
About 2 liters of blood were obtain (sic) from the thoracic cavity.
CAUSE OF DEATH:
Massive Intra Thoracic Hemorrhage due to Gun Shot (sic) Wounds.7
In the meantime, Atanacia advised her son Valentin to hide, as he might be killed next. Valentin heeded his
mothers advice and hid in San Pablo City. He sought the help of the Ombudsman and the Criminal
Investigation Service (CIS) of the Philippine National Police, but was told to seek the help of the New Peoples
Army in Quezon. He reported the shooting to NBI Director Antonio Carpio, who referred him to the police
authorities in Batangas. When he went to the police authorities in Batangas and revealed the identity of his
brothers assassins, he was told: "Bumangga ka pala sa pader, magpahinog ka."
Nonetheless, on March 15, 1991, Valentin sought the help of the President of the Philippines and gave a sworn
statement to Norberto Galang at the Kalayaan Hall, Malacaang, Manila.8 Edwin Botero was, however, afraid
to reveal the identities of the culprits to the police authorities and that he witnessed the killing.
On August 13, 1993, Mayor Antonio Sanchez was arrested for rape with homicide. His bodyguards, the
Corcolon Brothers Luis and Rogelio, had earlier surrendered to the Criminal Investigation Service for the same
crime.9Barely three (3) days after Mayor Sanchez arrest, Edwin Botero gave his sworn statement to the AntiOrganized Crime Division of the NBI.10 He applied for and was granted protection under the Witness
Protection Program of the Department of Justice.
The Case for the Appellants
Appellant Rogelio "Boy" Corcolon denied the charge against him and offered alibi as his defense. While
admitting that he knew Mayor Antonio Sanchez,11 he denied that he had ever been in the latters employ. He
claimed that he worked as a company guard of San Miguel Corporation.12 He related that at or about 1:00 a.m.
of July 30, 1989, he was in his residence at Barangay Mabacan, Calauan, Laguna, approximately thirty minutes
away from Barangay Bayog.13 He stated that he knew accused Cario as "Bodoy," but denied being with the
latter on July 30, 1989. He, likewise, disclaimed knowing appellant Calong-Calong and explained that he only
met him in the courtroom. He denied knowing Edwin Botero, saying that he met the latter only at the NBI. He
also stated that he did not know much about Ruben Velecina and "Boy Pansit."

For his part, Luis Corcolon claimed that at the time the incident occurred, he was a resident of Barangay
Masaya. He denied knowing the victim, Ruben Velecina, but admitted that he used to see Valentin Velecina
in the cockpit. He had heard of the name Nelson Cario, but denied knowing the appellant Domingo Banhaon.
He only got to meet "Boy Pansit" and Lito Calong-Calong in court.14 He, likewise, denied that he was, at any
time, in the employ of Mayor Sanchez, and claimed that he knew the latter only because he was the Mayor of
Calauan.15
Domingo Banhaon, on the other hand, claimed that in the afternoon of July 29, 1989, he was in their residence
at Barangay San Isidro, Calauan, Laguna, with the newly-eloped couple Alfredo and Lorenza Alcantara.16 As a
friend and cousin of Alfredo, appellant Banhaon and his wife helped the Alcantara couple in preparing for their
marriage. Appellant Banhaon fetched Barangay Captain Alberto Oroga of Barangay Lanot, and the latter
accompanied them and the Alcantara couple to Alfredos parents, who were residing in Barangay Talang Uno,
Lumban, Laguna where Alfredos parents resided. They left Calauan at 6:00 p.m. and reached Lumban at 8:00
p.m.17 The Banhaons helped the Alcantara couple explain their situation to Alfredos parents. The talk ended
at around 10:00 p.m., prompting the Banhaons to spend the night at the Alcantara residence. They left
Lumban for Calauan at 5:00 a.m. of July 30, 1989. Upon reaching their house, Domingo Banhaon learned of
Ruben Velecinas death. He then attended the victims wake, as the latter also happened to live in the same
barangay.18 He admitted that he knew the Velecina family, having worked for them as helper.
Appellant Banhaon also claimed that Valentin Velecina, the victims brother, knew him to have provided
photography services to Mayor Sanchez. Valentin approached him, and asked him to testify and implicate the
Mayor in the killing of Ruben. Appellant Banhaon also claimed that Valentin threatened to implicate him in the
murder of Ruben if he refused. As he did not know anything about the circumstances of Rubens death,
appellant Banhaon refused to testify against Mayor Sanchez. Hence, Valentin Velecina implicated him in the
killing.
Appellant Banhaon presented Lorenza Alcantara as witness to corroborate his testimony. 19
Appellant Joselito Calong-Calong, for his part, denied any participation in the killing. He claimed that he was
never employed by Mayor Sanchez, but that he worked as a truck helper at the Pepsi Bottling Company from
1976 to 1991, and then transferred to the Cosmos Bottling Company in 1992 until he was arrested. He said
that he came to know Rogelio and Luis Corcolon only during the arraignment of the case. 20 He also claimed
that on July 29, 1989, he arrived from work at 7:00 p.m. and stayed at home with his wife and children. He
went to church the next day. On his way home, as he passed by the house of Dominador Banhaon, he learned
of the death of Ruben Velecina, who lived only about "twelve (12) Meralco posts away" from him. He
countered that Valentin Velecina approached him to testify in the killing of Ruben. When he refused, Valentin
got mad and threatened him, "Para kang hindi kanayon, kapag akoy nainis sa yo, isasama kita."21
On September 30, 1996, the trial court promulgated its decision finding the appellants guilty beyond
reasonable doubt of murder. The dispositive portion of the decision reads:
WHEREFORE, foregoing considered, the Court finds accused LUIS CORCOLON, ROGELIO "BOY"
CORCOLON, LITO CALONG-CALONG, and DOMINGO BANHAON, GUILTY, beyond reasonable doubt of
the crime of Murder under Article 248 of the Revised Penal Code, qualified by treachery and there
being no mitigating or aggravating circumstances present in the commission of the crime, hereby
sentences, said accused to suffer a penalty of reclusion perpetua, and the accused jointly and severally
to indemnify the heirs of the deceased in the amount of P50,000.00, to pay moral damages of
P20,000.00, exemplary damages of P10,000.00 and to pay the costs.22

The trial court declared that the prosecution was able to prove and establish the crime charged and that the
appellants were guilty thereof. It found Edwin Botero and Valentin Velecinas positive identification of the
victims assailants credible and entitled to full probative weight, as against the denial and alibi of the
appellants. It held that the initial reluctance of the aforesaid witnesses to testify against the appellants did not
militate nor diminish their credibility, especially considering the perilous situation they were in. Further,
Valentin Velecina had no reason to implicate his barriomates, appellants Banhaon and Calong-Calong.
The court found that the appellants conspired with one another in killing the victim, and that they committed
the crime with treachery and abuse of superior strength.
The Present Appeal
The appellants now come to this Court to appeal the trial courts decision.
The appellant Calong-Calong assails the decision of the trial court contending as follows:
THAT THE HONORABLE COURT A QUO COMMITTED SERIOUS ERRORS IN LAW AND/OR
MISAPPREHENSION OF FACTS WHEN IT FOUND THE ACCUSED-APPELLANT JOSELITO CALONG-CALONG
GUILTY OF THE CRIME OF MURDER DESPITE THE PRESENCE OF REASONABLE DOUBT AND/OR
INSUFFICIENCY OF EVIDENCE AS AGAINST HIM THE ALLEGED PRESENCE OF CONSPIRACY NOT HAVING
BEEN DULY PROVEN BY THE PROSECUTIONS EVIDENCE 23
Appellant Calong-Calong asserts that the trial court committed serious errors in law when it found him guilty
beyond reasonable doubt of murder, considering that the evidence presented against him was insufficient,
especially as witnesses Edwin Botero and Valentin Velecina failed to identify him. He stressed that witness
Valentin Velecina was ill-motivated in implicating him in the murder charge. He furthered that only one kind of
weapon caused the wounds that led to the death of Ruben Velecina. 24
The appellants, Corcolon Brothers, for their part, contend that:
THE REGIONAL TRIAL COURT IN PASIG CITY (BRANCH 160) HAS ERRED IN NOT ABSOLVING AND
FREEING ACCUSED-APPELLANTS LUIS CORCOLON AND ROGELIO CORCOLON OF THE SERIOUS CRIME OF
MURDER DUE TO THE PRESENCE OF REASONABLE DOUBT IN THEIR FAVOR.
They point out that the RTC erred in finding them guilty beyond reasonable doubt of the crime of murder,
when the prosecution was not able to prove that they were involved in the aforesaid crime.
The appellant Banhaon, on the other hand, argues that he should be acquitted of the crime charged:
THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED-APPELLANT DOMINGO BANHAON GUILTY OF
MURDER DESPITE THE INSUFFICIENCY OF THE PROSECUTION EVIDENCE THAT WOULD WARRANT A
CONVICTION BEYOND REASONABLE DOUBT.25
Appellant Banhaon contends that the trial court erred in not considering his defense. He emphasized that his
innocence is buttressed by his voluntary surrender and the decision to remain in jail despite an opportunity to
escape during a jail break.26
On the other hand, the OSG avers that the prosecution established the crime with clear and convincing
evidence through the testimony of witnesses Edwin Botero and Valentin Velecina. The OSG contends that, in

light of the prosecution witnesses testimonies, the denial and alibi of the appellants cannot prevail. The
prosecution, likewise, proved that the appellants, in conspiring with one another and with the use of treachery
and abuse of superior strength, willfully and unlawfully, killed Ruben Velecina.
The Ruling of the Court
The threshold issue is whether or not the trial court erred in giving credence and probative weight to the
testimonies of the prosecution witnesses while disbelieving those of the appellants.
Well-settled is the rule that the findings of a trial court on the credibility of witnesses deserve great weight, as
the trial judge has a clear advantage over the appellate magistrate in appreciating testimonial evidence. The
trial judge is in the best position to assess the credibility of the witness as he had the unique opportunity to
observe the witness firsthand and note his demeanor, conduct and attitude under grueling examination.
Absent any showing that the trial courts calibration of credibility was flawed, we are bound by its
assessment.27 Only the trial judge can observe the furtive glance, blush of conscious shame, hesitation,
flippant or sneering tone, calmness, sigh, or the scant or full realization of an oath all of which are useful aid
for an accurate determination of a witness honesty and sincerity. The trial courts findings are accorded
finality, unless there appears in the record some fact or circumstance of weight which the lower court may
have overlooked, misunderstood or misappreciated, and which, if properly considered, would alter the result
of the case.28
We have reviewed the records and we find no justification to deviate from the findings of the trial court. The
denial of the appellants of the crime charged cannot prevail over the positive declarations of prosecution
witnesses Edwin Botero and Valentin Velecina. The defense of alibi is inherently weak and crumbles in the
light of positive declarations of truthful witnesses, who testified on affirmative matters that the appellants
were at the scene of the incident and were among the victims assailants.29 Positive identification where
categorical and consistent and without any showing of ill motive on the part of the eyewitness testifying on
the matter prevails over a denial which, if not substantiated by clear and convincing evidence is negative and
self-serving evidence undeserving of weight in law.30
In this case, Valentin Velecina testified that at a distance of seven (7) meters or so, and while he was hiding in
a nearby chicken coop, he saw the accused Nelson Cario, appellants Luis Corcolon, Rogelio Corcolon and Lito
Calong-Calong fire their guns towards the kitchen sink, as Ruben Velecina emerged from the comfort room,
while Domingo Banhaon and "Boy Pansit" acted as lookouts. When Luis Corcolon and his cohorts stopped
firing, he heard his brother say, "Ate Uping, may tama ako." Immediately after the assailants left, he entered
the house and saw his brothers body slumped on the ground, soaked in his own blood. 31 The testimony of
Velecina is quoted,viz:
Q: While you were at the back of the house of Dory Perez, what transpired next?
A: At about 10:30 in the evening when I noticed that several persons arrived coming from the back
portion of the house and not infront of the house.
Q: You are referring to what date, Mr. Witness?
ATTY. PIO: Already answered your Honor.
COURT: Witness may answer.

A: July 29.
FISCAL:
Q: Now, you said that there were several persons who arrived, who were these persons?
A: The six (6) persons I have mentioned earlier.32

Q: Upon arrival at the said place, what did they do there?

A: When I saw them at that time they just stood near the house and positioned themselves.
Q: Mr. Witness, how far were you from these persons when you saw them?
A: More or less as far as that window
.
INTERPRETER: Measuring a distance of eight meters.
FISCAL:
Q: How long did they stay on the said place?
A: More or less as I could estimate about one half hour.
Q: How about you, where were you at that time?
A: I was just standing at that time which was not well lighted.
Q: Why were you so certain that those persons whom you saw were the same persons?
A: Because on the place where they entered there was a flourescent light lighted.
INTERPRETER: Witness pointing to the long flourescent tube.
FISCAL:
Q: By the way Mr. Witness, you have earlier pointed to this Honorable Court the persons of Rogelio
Corcolon and Luis Corcolon, how about the other persons you saw at Dorys residence, please look
around?
A: They are not around.
Q: After thirty minutes (30) of staying there what happen (sic) next?
A: Before the lapse of thirty minutes somebody approach me.

Q: Who was that person who approached you?

A: Carlos Medel asked permission if he could urinate.
Q: When he approached you, what did he do?
A: I whisper[ed] to him to go inside and tell not to go out for the henchmen of Mayor Sanchez was
here.
Q: What was the reaction of Carlos Medel, whom you instructed to go inside?
A: He entered the house and told me that they would inform.
Q: So, you were left outside?
A: Yes, Sir.
Q: What did you do when you were left behind?
A: I cover[ed] myself by trying to get near them so that I could identify them.
Q: What did you do next to these fellows whom you earlier named?
A: After a while I saw them pulling out short firearms and I saw them aiming their guns on the persons
on the side and then bursts of gunshots near a wall, it was just a wall with bamboo on top of it.
Q: Would you kindly specify those persons whom you said were carrying firearms?
A: The six of them but only four aimed their firearms.
Q: Do you know the caliber of firearms they were carrying at that time?
A: I could not remember if 45 or 38.
Q: You earlier stated "PUMUTOK" towards what direction were the firings directed?
A: Inside.
Q: Inside what?
A: Inside the house.
Q: What happened after that?
A: When they were firing their guns, the people scampered away.
Q: How about you, where were you at that time?
A: I stayed in my place and watch.

Q: How long did the firing last?

A: I could not remember for how long but only for a short while.
Q: After that firing, what transpired next?
A: I heard my brother Ruben shouting "ATE UPING MAY TAMA AKO."
Q: Upon hearing this remark of your brother, what did you do?
A: I still stay there and I did not get away till those persons left.
Q: Towards what direction were those people who shoot your brother proceeded?
A: Towards the place where they entered.33

FISCAL:
Q: Mr. Witness, when the person whom you earlier named aimed or fired their firearms towards the
direction of Dorys residence, where were you at that time?
A: I was at a dark place near the chicken coop.
Q: When did you come out of the place where you were hiding?
A: After the gunshot and Nelson Cario uttered "TAYO NA YARI NA YAN."

Q: After the group left the place, what followed next?

A: After they have left in a few seconds, I heard two gunshots, they fired twice when they were at the
road when I heard before the time they sped away, that is the time I entered inside.
Q: When you entered your brother?
A: Yes, Sir.
Q: Do you recall if your brother was armed at that time?
A: None, Sir.
Q: You earlier stated Mr. Witness that there were four among those persons whom you earlier named
who fired their guns?
A: Yes, Sir.
Q: Who are they?

A: Nelson Cario, Luis Corcolon, Lito Calong-Calong, Rogelio Corcolon and the other two have guns but
they seem to be look out.
Q: Who were those two that you are referring to Mr. Witness?
A: Domingo Banhaon and Boy Pansit.
Q: Mr. Witness, will you kindly tell again the Honorable Court those persons, the six persons whom you
earlier mentioned were here?
A: Only three.
Q: Who?
A: Luis Corcolon the one with fan.
INTERPRETER: Witness pointed to Luis Corcolon.
A: Rogelio Corcolon.
INTEPRETER: Witness pointed to Rogelio Corcolon, one of the accused in this case.34
Edwin Botero corroborated the testimony of Valentin Velecina. He testified that he saw Luis Corcolon, Rogelio
Corcolon, "Boy Pansit" and two others go inside the alley leading to the back of the Perez residence. After
thirty minutes, he heard shots coming from the direction of the said house. As people scampered in panic, he
saw the appellants Luis Corcolon, Rogelio Corcolon and Boy Pansit come out of the alley with handguns on
display. They fired shots in the air and then sped away in the jeep.
FISCAL:
Q: When this owner-type jeep passed by your place where you were drinking, what did Luis Corcolon
do if any, if you remember?
A: When the jeep pass by, Luis Corcolon alighted from the jeep and he asked something from us. He
asked us why we are drinking in that place and I told him I was invited by Mang Roger.
Q: Are you referring to Mang Roger?
A: Roger Perez.
Q: Aside from asking you why you were drinking in that place, what did he asked you if any?
A: He asked me that question, he asked me if the father of the person to be wed was there.
Q: What was your answer?
A: I told him he was inside.
Q: Do you remember if he mention any name?

A: None Sir, he just asked me if the father of the person to be wed is

there.
Q: What was your actual answer to the question?
A: I told him Roger Perez and Ruben Velecina were there.
Q: Lets go back to the Ford Fiera, you said it pass by you, where does it go if any?
A: When the Ford Fiera pass by our place it stop in a distance and the owner-type jeep proceeded and
Luis Corcolon just walk by.
Q: What about the tricycle with the three persons riding on its where did they go?
A: It parked near the Ford Fiera.
Q: Now far more or less from you from the place where you were drinking did the Ford Fiera parked?
A: About fifty (50) meters.
INTERPRETER: Witness pointing a distance up to the tree outside in the other side of the road.
FISCAL: Twenty meters?
ATTY. PIO: Thirty five meters.

FISCAL:
Q: Now, lets go back to Corcolon, would you remember what was he wearing at that time?

FISCAL: Luis Corcolon.

A: Black jacket.
Q: What about the other persons the passenger of the jeep or the Ford Fiera?
A: No, Sir. I could not remember.
Q: You said that Luis Corcolon just walk to the place where the Ford Fiera was parked what happened
after that?
A: The Ford Fiera moves forward and stop at the rear of the tricycle, he turned around and whisper
something to Mayor Sanchez.

Q: Now, you had been mentioning the accused Luis Corcolon and Rogelio Corcolon, could you tell us
why you know them personally?
A: I was formerly a soldier and we trained CAFGU and the other CAFGU has been taken by Mayor
Sanchez as body guard and I was assigned at Dayap in Calauan, Laguna.
Q: When was this tour of duty of yours in Calauan, Laguna?
A: 1990.
COURT: Were you one of the body guards of Mayor Sanchez which was
assigned to him?
A: No, Your Honor.
FISCAL:
Q: Now, the question that was paused to you, why you personally know Luis Corcolon and Rogelio
Corcolon, now your answer was that you were assigned at Dayap and that Mayor Sanchez got one half
of the CAFGU, how did you come to meet them?
A: I have been going to the house of Mayor Sanchez I saw them there as trainees of CAFGU.
Q: What about the two accused Luis and Rogelio Corcolon, were they also trainee?
A: No, Sir.
Q: Would you know a person by the name of Lito Calong-Calong?
A: No, Sir.
Q: Lets go back to that point when you saw Luis Corcolon whispering to Mayor Sanchez what happen
after that?
A: After that, that they have whispered to each other the Ford Fiera left and they entered the alley.
Q: You said "PUMASOK SILA" who was this?
A: All of them, Luis Corcolon, Boy Corcolon and Boy Pansit, I do not know the others.
Q: Now, more or less, how many persons entered that alley together with Boy Pansit and the two
Corcolon?
A: There were six (6) of them.
Q: That alley was leading to what direction?
A: At the back of Mang Roger.

Q: After you saw them entered the alley, what did you and your group do if any?
A: We continue drinking.
Q: After a while, what happened if any?
A: More or less 30 minutes I heard gunshots.
Q: After you heard gunshots, what else happen if any?
A: During the gunshot people panic, we were separated, the people were going out.
Q: Now, you said you heard gunshots, during your lifetime with the Armed Forces, do you have training
of firing guns?
A: Yes, Sir.
Q: So, when you heard gunshots that evening, where do you think, from what direction were those
gunshots came from?
A: It came from the back of the house of Roger Perez where they entered through.
Q: Now, you said that you heard the shooting there were people scampering, what else did you see
aside from those people coming out, who else did you see if any?
A: I heard from the people running "MAY PATAY, MAY PATAY."
Q: What about Luis Corcolon, Rogelio Corcolon and Boy Pansit and the other group, did you see them
again after the series of gunshots?
A: They all came out and boarded the Ford Fiera and owner-type jeep and the tricycle.
Q: You said that the group of Boy Pansit, Rogelio Corcolon went back to the tricycle and the ownertype jeep, what were they carrying at that time?
ATTY. PIO:
Objection, Your Honor.
COURT:
Objection sustained.
FISCAL:
Q: What did you observe when they went back to the owner-type jeep and the tricycle?
A: After they boarded and they fired shots upward.
Q: How many gunshots while in the jeep?

A: Two shots while in the jeep.

Q: Would you know what kind of firearm was fired while they were in the jeep?
A: I do not know, it was just a short gun that I saw.
COURT:
Q: When you said you saw a short gun, where did you see this handgun and at what time?
A: More or less 1:00 oclock.
Q: Where were they when you see them with the handgun?
A: At the place of the incident at Mang Rogers place.
Q: After you heard two gunshots while this group of Boy Corcolon, what else happened?
A: They left afterwards and later a tricycle come and I went home.35
The failure of Edwin Botero and Valentin Velecina to report the crime immediately after the commission
thereof did not diminish their credibility. It should be remembered that different people react differently to an
unusual event.36There is no standard behavior when confronted with a strange, startling or frightful
occurrence. Fear has been known to render people immobile and helpless particularly in life and death
situations. Any person faced with such an overwhelming situation would sufficiently be cowed by fear or at
least compelled to act in a manner aimed at self-preservation.37 Witnesses may keep silent for a time rather
than risk their lives. As we ruled in People v. Rimorin:38
That Osoteos fear of Rillon constrained him for ten years from revealing the crime and identifying the
perpetrators to the authorities is understandable. The delay should not in any way taint his credibility.
It should in fact foster credence in his revelation, considering that after ten years he did not have to
come out to testify if there was no grain of truth in it.
The initial reluctance of witnesses Edwin Botero and Valentin Velecina to testify against the accused
and the appellants had been satisfactorily explained. Valentin Velecina testified that he was not able to
report the incident for fear that he would be the next target of the assailants who were bodyguards of
Mayor Antonio Sanchez of Calauan, Laguna, especially considering that two of his relatives had been
killed and that he had received death threats.
Q: Mr. Witness, prior to the death of your brother Ruben Velecina, your nephew by the name Bernardo
Velecina was killed, and after that your cousin by the name of Recto Aniceta was also killed and you
suspected a certain Ruben Cario as the one who killed these two persons, is that correct?
A: Yes, Sir.
Q: And you believe the reason why Nelson Cario killed Ruben Velecina was because of the death of
Leopoldo Cario, is that correct?
A: Yes, Sir.

Q: And your family was suspected behind the killing of Leopoldo Cario?
A: Yes, Sir.
Q: And this is the reason why up to now you are still in hiding for you believe that Nelson Cario would
like to kill you?
A: Yes, Sir.39
Edwin Botero testified that it was only on August 16, 1993 that he came out because he was afraid that he
would be killed by the accused and the appellants if he testified. Upon seeing his kababayan, Atty. Sacaguing
of the NBI, on television regarding the Aileen Sarmenta case, he decided to testify on the victims behalf.
FISCAL:
Q: Now, Mr. Witness, it appears in your statement that the date when you executed this is August 16,
1993 before the Office of Head Sergeant Artemio Sacaguing, please explain to this Court why you only
executed this affidavit on August 16, 1993 when the incident happened on July 30, 1989?
A: The reason why I did not come out because I am afraid I could not present myself as witness.
Q: What could be the reason why you eventually change (sic) your mind and executed this affidavit?
A: I saw Atty. Sacaguing in the (sic) T.V. and my townmate with the NBI. I voluntarily went to him to
give justice to the Velecina case.
Q: What was the topic of the TV program that inspired you to come out?
A: About Mayor Sanchez and Kit Alquesa was inflicted (sic) with the Aileen Sarmenta case. 40
By then, Mayor Sanchez and his bodyguards, the appellants Luis Corcolon and Rogelio Corcolon had been
placed in the custody of police authorities. Edwin Botero was so afraid for his life that he applied for and was
granted protection under the Witness Protection Program of the Department of Justice.
Neither did Valentin Velecinas relationship with Ruben Velecina render his testimony biased. Relationship, by
itself, does not give rise to any presumption of bias or ulterior motive, nor does it impair the credibility of
witnesses or tarnish their testimonies. The relationship of a witness to the victim would even make his
testimony more credible, it being unnatural for a relative who is interested in vindicating the crime charged
and prosecute another person other than the real culprit.41 Relatives of victims of crimes have a natural knack
for remembering the faces of the assailants more than anybody else, and would be concerned with obtaining
justice for the victim by having the felon brought to justice and meted the proper penalty. 42 In the absence of
any improper motive on the part of the witness, his relationship to the victim cannot impair the weight of his
testimony.43
We agree with the ruling of the trial court that the appellants conspired to kill Ruben.
A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony
and decide to commit it.44 It need not be established by direct evidence. It may be inferred from the acts of
the accused before, during or after the commission of the crime which, when taken together, would be

enough to reveal a community of criminal design.45 Proof of previous engagement among the malefactors to
commit the crime would be unnecessary to establish conspiracy when by their overt acts it would be deduced
that they conducted themselves in concert with one another. 46
As gleaned from the records, the following chain of events show that there was community of design among
the appellants: (1) the appellants, although in separate vehicles, arrived at the scene of the crime together at
approximately 12:30 a.m. on July 30, 1989; (2) accused Nelson Cario and appellants Corcolon Brothers and
Lito Calong-Calong fired shots on the wall where Ruben Velecina was taking refuge, while appellant Domingo
Banhaon and "Boy Pansit" stood guard; (3) the group of Luis Corcolon stopped firing on the wall only when
accused Nelson Cario assured them that the victim was dead, uttering "Tayo na yari na yan;" and, (4) the
group left together after shooting the wall.
In People v. Delim,47 we held that lookouts are criminally liable as principal, by direct participation.
The killing was qualified by treachery. There is treachery when the offender commits any of the crimes against
persons, employing means or methods in the execution thereof which tend directly and specifically to insure
its execution, without risk to the offender, arising from the defense which the offended party might
make.48 The essence of treachery is that the attack is deliberate and without warning, done in swift and
unexpected manner of execution, affording the hapless and unsuspecting victim no chance to resist or
escape.49 In the case at bar, the victim was inside the Perez residence and was busy preparing for the wedding
of his son, Isidro Velecina, to Dory Perez, the daughter of Roger Perez. The victim was unarmed and was
deprived of any means to defend himself, or to evade the sudden and unexpected assault.
The autopsy conducted by Dr. Ruben Escueta shows that the victim sustained a total of seven (7) gunshot
wounds, with entrances at the back and the other wounds sustained while in a lying position. Per the autopsy
report, the cause of the victims death was massive hemorrhage in the thoracic cavity due to accumulation of
two liters of blood arising from lacerations sustained by the right lung, heart, liver and abdominal muscles.
Abuse of superior strength was also attendant. To take advantage of superior strength is to purposely use
excessive force, out of proportion to the means of defense available to the person attacked. 50 In the case at
bar, there was clear and gross disparity of strength between the unarmed victim and the six armed assailants four of whom used four short firearms in shooting the wall where the victim was taking refuge, while two
others stood guard, also armed with short firearms. The victim, who was inside the house preparing for his
sons wedding, gave no provocation when he was attacked. However, the aggravating circumstance of
superior strength cannot be separately appreciated because it is absorbed by treachery. 51
It was further alleged that the offense was committed with the aid of armed men. The requisites of this
aggravating circumstance are: (1) that armed men or persons took part in the commission of the crime,
directly or indirectly, and (2) that the accused availed himself of their aid or relied upon them when the crime
was committed.52 In this case, while the appellants were all armed, all of them acted in conspiracy with one
another. All of the appellants acted in concert to ensure the commission of the crime. Hence, the aggravating
circumstance cannot be appreciated. Even if it were so, the same could not be appreciated separately as it is
deemed to have been absorbed by treachery.53
Appellant Domingo Banhaon insists that his voluntary surrender and his refusal to escape during the jail break
gives proof to his innocence. In order for voluntary surrender to be appreciated, the following requisites
should be present: (1) the offender has not been actually arrested; (2) the offender surrendered himself to a
person in authority or the latters agent; and, (3) the surrender was voluntary. Further, the surrender must be
spontaneous in such a manner that it shows the interest of the accused to surrender unconditionally to the

authorities, either because he acknowledged his guilt or because he wishes to save them the trouble and
expenses necessarily incurred in search and capture.54
In the case at bar, appellant Banhaon remained at large even after Judge Francisco Ma. Guerrero issued the
warrant for his arrest on March 17, 1994.55 Appellant Banhaon surrendered only on June 27, 1995, after an
alias warrant of arrest had already been issued against him, and approximately six years after the commission
of the crime. Clearly, voluntary surrender cannot be appreciated in his favor as a mitigating circumstance.
Neither can it be used to show his innocence. Appellant Banhaons failure to escape is not indicative of his
innocence.
The records reveal that the crime was committed during nighttime. This circumstance is considered
aggravating only when it facilitated the commission of the crime, or was especially sought or taken advantage
of by the accused for the purpose of impunity. The essence of this aggravating circumstance is
the obscuridad afforded by, and not merely the chronological onset of, nighttime. Although the offense was
committed at night, nocturnity does not become a modifying factor when the place is adequately lighted and,
thus, could no longer insure the offenders immunity from identification or capture. 56 In the case at bar, it was
not shown that nighttime was especially sought for or used to insure the offenders immunity from
identification or capture.
We note that the Information alleges that the appellants used firearms to kill the victim. Under Republic Act
No. 8294, the use of unlicensed firearm is an aggravating circumstance if such firearm is used to commit
homicide or murder. However, such circumstance cannot be appreciated against the appellants because of the
following: (a) the law took effect after the commission of the crime and a retroactive application thereof
would be unfavorable to the appellants; and, (b) there is no allegation in the Information, nor was it proved by
the prosecution that the appellants had no license or permit to possess the firearms. The lack of license or
permit of the appellants to possess the firearms is a negative averment which is an essential element of the
aggravating circumstance and must be alleged in the Information.
Under Article 248 of the Revised Penal Code, as amended by Rep. Act No. 7659, murder is punishable
byreclusion perpetua to death. However, when the crime was committed in 1989, murder was punishable
by reclusion temporal maximum to death. Where no mitigating or aggravating circumstance attended the
commission of the crime, the medium period of the imposable penalty, which is reclusion perpetua, should be
imposed by the trial court. In this case, no mitigating nor aggravating circumstance attended the commission
of the crime. Hence, the trial court correctly imposed the penalty of reclusion perpetua on the appellants.
Conformably with recent jurisprudence, we sustain the amount of P50,000 for civil indemnity to the heirs of
the deceased without need of any further proof.57 Exemplary damages of P25,00058 must, likewise, be
awarded, in accordance with Article 2230 of the Civil Code because of the attendance of the qualifying
circumstance of treachery.59 However, the award of moral damages should be deleted in the absence of any
sufficient evidence to support the same.60 The heirs of the victim are, however, entitled to temperate
damages.61
WHEREFORE, the appealed decision of the Regional Trial Court of Pasig City, Branch 160, finding the
appellants Luis Corcolon, Rogelio "Boy" Corcolon, Lito Calong-Calong and Domingo Banhaon guilty beyond
reasonable doubt of murder is hereby AFFIRMED with MODIFICATIONS. Said appellants are ORDERED to pay,
jointly and severally, the heirs of the victim, Ruben Velecina, Fifty Thousand Pesos (P50,000) as civil indemnity;
Twenty-Five Thousand Pesos (P25,000) as exemplary damages; and Twenty-Five Thousand Pesos (P25,000) as
temperate damages. The award of moral damages is deleted.

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

Footnotes
1

Penned by Judge Mariano M. Umali (now retired Associate Justice of the Court of Appeals).

Records, p. 2.

TSN, 26 April 1995, pp. 12-13.

Id. at 10.

TSN, 16 June 1995, pp. 15-16.

TSN, 29 September 1995, pp. 40-43.

Records, pp. 140-141.

Exhibit "B," Records, p. 136.

People v. Sanchez, 302 SCRA 21 (1999).

10

Exhibit "A," Records, p. 132.

11

TSN, 18 August 1995, p. 8.

12

Id. at 16.

13

Id. at 14-15.

14

Id. at 22-23.

15

Id. at 26.

16

TSN, 18 October 1995, pp. 30-31.

17

Id. at 39.

18

Id. at 50.

19

TSN, 11 October 1995.

20

TSN, 27 October 1995, p. 21.

21

Id. at 14.

22

Rollo, p. 41.

23

Id. at 66.

24

Id. at 63-71.

25

Id. at 216.

26

Id. at 216-235.

27

People of the Philippines v. Alfonso Rivera @ "Ponso" and Teddy Rivera (At Large), G.R. No. 139185,
September 29, 2003.
28

People of the Philippines v. Errol Rollon, G.R. No. 131915, September 3, 2003.

29

Ibid.

30

People of the Philippines v. Errol Rollon, supra.

31

TSN, 31 August 1995, p. 17.

32

Nelson Cario, Domingo Banhaon, "Boy Pansit," Luis Corcolon, Joselito "Lito" Calong-Calong and
Rogelio alias "Boy" Corcolon. (TSN, 16 June 1995, p. 13).
33

TSN, 16 June 1995, pp. 11-18.

34

Id. at 24-28.

35

TSN, 26 April 1995, pp. 12-19.

36

People v. Morial, 363 SCRA 96 (2001).

37

People of the Philippines v. Errol Rollon, supra.

38

332 SCRA 178 (2000).

39

TSN, 16 June 1995, pp. 45-46.

40

TSN, 26 April 1995, pp. 21-22.

41

People of the Philippines v. Bernabe Montemayor, G.R. No. 125305, June 18, 2003.

42

People v. Listerio, 335 SCRA 40 (2000).

43

People of the Philippines v. Errol Rollon, supra.

44

People of the Philippines v. Felipe Natividad, et al., G.R. No. 151072, September 23, 2003.

45

People of the Philippines v. Ruben Caete, et al., G.R. No. 138366, September 11, 2003.

46

People of the Philippines v. Nestor Carriaga, et al., G.R. No. 135029, September 12, 2003.

47

396 SCRA 386 (2003).

48

People of the Philippines v. Ruben Caete, et. al., supra.

49

People of the Philippines v. Eusebio Duban, G.R. No. 141217, September 26, 2003.

50

People of the Philippines v. Errol Rollon, supra.

51

People v. Diaz, 320 SCRA 168 (1999).

52

People v. Amion, 353 SCRA 410 (2001).

53

People v. Manes, 303 SCRA 231 (1999).

54

People v. Raul Oco @ Boy Usher, G.R. No. 137370-71, September 29, 2003.

55

Records, p. 31.

56

People of the Philippines v. Raul Oco @ Boy Usher, supra.

57

People of the Philippines v. Errol Rollon, supra.

58

People v. Nicolas, 400 SCRA 217 (2003).

59

People of the Philippines v. Eusebio Duban, supra.

60

People v. Caballero, 400 SCRA 424 (2003).

61

People of the Philippines v. Danny delos Santos, G.R. No. 135919, May 9, 2003.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-45722 June 23, 1987
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LEONCIO JUSEP, defendant-appellant.

FERNAN, J.:
The records of this case were elevated to this Court from the Court of First Instance of Zamboanga del Norte,
Branch III * at Dipolog City for automatic review of the decision of December 23, 1976 which found Leoncio
Jusep guilty beyond reasonable doubt of murder and imposed on him the death penalty and other accessory
penalties under the law, and the payment of an indemnity of P12,000 to the heirs of the victim, Jesus Gandola,
plus the costs of the suit (Criminal Case No. 1118).
As gathered by the prosecution, the facts of the case are as follows:
Jesus Gandola was the administrator of the 28-hectare land located along the seashore of Malolong,
Zamboanga del Norte, belonging to his aunt, Maria Perdices. He lived in nearby Loquilos, Manukan, also in
Zamboanga del Norte. He was engaged in fishing ("sensoro") as was Leoncio Jusep, who used to stay in
Perdices' land before he was driven out of it for failure to pay rentals (TSN, November 14, 1974, pp. 25-26;
August 23, 1974, pp. 4-5).
The stiff business competition between Gandola and Jusep developed into something akin to bad blood
between them. One time, Gandola tried to borrow fifteen empty fish boxes from Jusep but the latter refused
to lend him any. On another occasion, Jusep asked Gandola's father, Angel, to admonish Etot (Gandola's
nickname) not to spread the rumor that Jusep had stolen a cow (TSN, supra, p. 26). And, there was a time
when Gandola fired his rifle at Jusep whom he caught disturbing with a fish net the school of fish which had
been spotted by Gandola's fisherman (TSN, August 23, 1974, pp. 11-12).
Sometime in May, 1967, Pastor Cotillas, who took charge of Jusep's fishing business, went to Hilongos, Leyte
under the pretext of recruiting fishing laborers or "buseros." Actually, he was on an errand for Jusep to look
for a hit man to do away with Gandola. Pastor contacted his cousin, Alfredo Cotillas, and brought him to
Manukan where Alfredo met Jusep for the first time. The latter went with Pastor to Manukan.
When Pastor introduced them to each other, Jusep asked Alfredo if he was the same person that Pastor had
told him about and Alfredo replied that he was indeed the one. Jusep then told Alfredo to shoot Gandola in
consideration of the amount of P2,000. He promised to give Alfredo said amount after he had shot Gandola
(TSN, August 15, 1974, pp. 14, 28 & 32).
Jusep and Alfredo frequently talked to one another because the former's house was very near that of Pastor
where Alfredo stayed. When Alfredo asked Jusep where he would meet Gandola, Jusep answered that he
should go to that part of Manukan where there was a big house and he would not miss Gandola who was a big
fellow (TSN, supra, p. 15). The first time Alfredo saw Gandola was when they were on the seashore and Jusep
pointed out Gandola who was then standing on a bamboo raft. The second time was when Jusep made him
ride a jeep which passed by Gandola's house (TSN, supra, pp. 57-58).
When Alfredo asked for a gun, Jusep told him to wait awhile because the .45 caliber gun had not yet arrived
(TSN,supra, p. 16). In the morning of August 1, 1967, while Alfredo was in the kitchen of Pastor's house, Jusep
arrived. He presented Alfredo with a .32 caliber revolver and told him to use it in shooting Gandola. Jusep said,
"You always tack that revolver on your waist because there will be a movie in the afternoon and that fellow
might come and you finish him ("butangi") there" (TSN, supra, p. 17). But, as instructed by Jusep, Alfredo did
not leave Pastor's house that afternoon. When Jusep came back, he informed Alfredo that Gandola was not
watching the movie. So, he told Alfredo, "You better go to his house because he is not around" (TSN, supra, p.
18).

Jusep and Alfredo then hiked along the seashore to the house of Gandola. When they arrived there, they
stayed by the coconut tree near the house. They waited for people to come out of the house as it was then
time for cooking supper. When they noticed that the people in the house were about to take supper, Jusep
directed Alfredo to go under the house while he stayed a little distance therefrom (TSN, supra, pp. 19-23).
The floor of Gandola's house was 2 1/2 to 3 feet from the ground. Alfredo went to that part of the ground
underneath the house just below where Gandola was seated eating his supper. He could easily see the
persons inside the house because the floor was made of bamboo slats placed one-fourth of an inch apart (Exh.
E; Record, p. 164; TSN, supra, p. 24).
Meanwhile, Gandola, his wife Arcelita, two of their three children, a baby-sitter and some "buseros" were
taking their supper. Gandola was seated at one end of a bench beside his daughter. Unexpectedly, they heard
an explosion. Gandola stood up, looked towards the national road and then towards the sea. Suddenly, he
held his side and said, "Gin, I was shot" (TSN, August 23, 1974, p. 7).
Alfredo shot Gandola by holding the gun perpendicularly and aiming at the left side of Gandola's abdomen just
below his ribs. Having hit his mark at the first shot, Alfredo aimed for another shot but due to the smoke
emitted by the gun after the blast, he got out from under Gandola's house, went to where Jusep was, and
together they proceeded to Jusep's house (TSN, August 15, 1974, pp. 24-25).
After learning that Gandola had been shot, one of the "buseros" tried to put out the light from the Petromax
lamp but Arcelita quickly pumped air into the lamp to brighten the house. Seeing her husband wounded, she
took a flashlight and went down the house hoping that she could still see the assailant. When she saw nobody
downstairs, she went up the house and saw her husband leaning on the bench. Gandola told her to inform his
father about the incident. Arcelita acquiesced and hurried towards Linay, Manukan to her father-in-law's
house. Along the way, she met someone to whom she entrusted the task of informing Gandola's father about
the shooting incident (TSN, August 23, 1974, pp. 7-8).
When Arcelita returned to their house, Gandola told her to inform his father that it was Leoncio Jusep who
had "looked for" his killer. As he spoke, Gandola acted as if nothing had happened to him. He then asked
Arcelita to hail a vehicle so that he could be brought to a hospital. He repeated his instruction to Arcelita to tell
his father that it was Leoncio Jusep who had looked for a person to kill him (TSN, supra, p. 8).
Arcelita waited for a vehicle to pass by but none came. Later, the person she had told to go to her father-inlaw arrived in a jeep. On the way to the hospital in Dipolog City, Gandola once more told Arcelita that Leoncio
Jusep was the one who had looked for his killer and that, should he be unlucky and die, Arcelita should take
over their fishing business.
When they arrived at the hospital at around 10:00 o'clock that evening, Gandola was x-rayed. While he was
being wheeled to the operating room, Gandola reiterated to Arcelita that it was Leoncio Jusep who had looked
for his killer. Arcelita stayed outside the operating room while her husband was being operated on. At 4:00
o'clock the following morning, she was informed that Gandola was dead (TSN, supra, p. 9).
Gandola, who was 36 years old at the time of his death, underwent an exploratory laparotomy with
gastrorraphy and splenectomy. The bullet which entered his left lower chest, lateral aspect, penetrated his
abdomen and thoracic cavities, perforated his stomach and lacerated his spleen thus causing massive intraabdominal hemorrhage (Exh. M; Record, p. 171). The immediate cause of his death was severe anemia due to
massive hemorrhage (Exh. K; Record, p. 169).

In the meantime, coming from Gandola's place, Alfredo and Jusep encountered two persons (TSN, August 15,
1974, p. 25). One of them, Andres Gundes (Geondres), was defecating near his house about a hundred meters
from Gandola's house. He heard the explosion and, shortly thereafter, saw two men walking towards him.
Gundes aimed his flashlight at them and recognized them as Pidong Cotillas and Leoncio Jusep (TSN, August
22, 1974, p. 4). Gundes had known Jusep for several years and therefore he could not be mistaken in
Identifying him (TSN,supra p. 5). The other person who saw Alfredo and Jusep was Teofisto Villarin, who, after
hearing the explosion, alighted from the coconut tree on which he had perched extracting tuba. Upon
reaching the ground, he switched on his flashlight and saw Alfredo and Jusep (TSN, August 15, 1974, p. 70).
Alfredo returned the gun to Jusep upon their arrival in Jusep's house (TSN, supra, p. 31). Jusep then instructed
Alfredo to spend the night in Pastor's house. Alfredo stayed there until the 3rd of August, 1967 when Jusep
handed Alfredo only around twenty pesos instead of the promised P 2,000, and told him to return to Leyte
(TSN, supra, pp. 26-27).
Alfredo demanded from Jusep that he be given the P2,000 but Jusep promised him that he would send that
amount to him through Pastor (TSN, supra, p. 32).
Agents of the National Bureau of Investigation (NBI) looked into the killing of Jesus Gandola. The first suspect
to be investigated was one Rivera who allegedly had a quarrel with Gandola. Then they picked up Pastor
Cotillas (TSN, August 22, 1974, pp. 29-30).
In his first sworn statement which he executed on August 10, 1967 in Villaramos, Manukan, Zamboanga del
Norte before NBI agents Arturo H. Nunag and Restituto M. Reluya, Pastor admitted having worked for Jusep.
He claimed that at around 7:30 in the evening of August 1, 1967, he was selling fish in the market with his wife
and the wife of Jusep. He stated that he knew Gandola because he used to stay in Gandola's land for around
ten years. He added that Gandola and Jusep had a misunderstanding because the latter refused to lend fish
boxes to the former but that they later made up and talked to each other again. He admitted that in February,
1967, he built his house on Jusep's land without paying rentals thereon, and that Jusep even lent him P200 for
his house but Jusep never demanded that he pay back said amount. However, he denied having received from
Jusep P500 to pay whoever would agree to liquidate Gandola (Exh. 0; Record, p. 264).
Five days later or on August 15, 1967, Pastor executed another sworn statement before the same NBI agents
but this time in Dipolog City. He admitted therein that he had offered P500 to one Tacluban to liquidate
Gandola; that he was acting on instructions of Jusep; that it was Jusep who approached him to find a man who
could kill Gandola; that he went to Ozamis City to look for a hired killer; that his cousin, Alfredo Cotillas, whom
he had recruited for Jusep's fishing business, told him when they arrived in Manukan that Jusep had suggested
to him (Alfredo) that he should kill Gandola; that he told Alfredo that it was not a good proposition because
even if he (Pastor) had looked for the hired killer, he did not want any of his relatives to get involved in the
killing; that at 6:00 o'clock in the morning of August 2, 1967, Jusep told him that Gandola did not die
instantaneously of the gunshot wound in conflicted on him by Alfredo ("Matay, tor, wa man ma antimano");
that the gun used in killing Gandola was in the possession of Jusep; and that on the day he executed the
statement, he was leaving for Leyte to warn Alfredo to keep his mouth shut because Jusep was afraid that
Alfredo might reveal that Jusep had instigated the killing of Gandola (Exh. P; Record, pp. 266-269).
The following day, August 16, 1967, Pastor executed his third sworn statement before NBI agents Alberto de la
Rosa and Arturo M. Nunag in Zamboanga City. The certified copy of said statement which was presented in
court was in the Cebuano dialect and, like Exhibit P it was the only available copy of said statement. **
Pastor stated therein that he was in the market when Gandola was shot. He knew that Jusep owned the .32
caliber revolver used in shooting Gandola because it was Jusep who masterminded or instigated ("nagsugo")

the killing of Gandola. According to Pastor, Jusep gave him P600, of which P500 would be paid to whoever
would agree to kill Gandola and the balance of P100 would be spent in looking for the killer. He reiterated that
he had given Tacluban the P500 but Tacluban allegedly lost it in gambling. He stated that sometime in January,
1967, when Jusep passed by Gandola's place to fish, Gandola chased him with his pumpboat. Sometime in
May (1967), Jusep instructed him to look for "buseros" in Leyte. There, he met Alfredo (Didong or Pidong) and
told him about Jusep's quest for a killer. Alfredo went with him to Manukan and he introduced him to Jusep.
Pastor narrated that it was on July 15, 1967 when Alfredo, Jusep and himself, talked about the killing of
Gandola. Jusep told Alfredo that if the latter would agree to kill Gandola, he (Jusep) would take care of
everything. At around 11:00 o'clock in the morning of August 1, 1967, the three met once again in the
warehouse ("kamalig") of Jusep to map out the plan to liquidate Gandola. They agreed that it would be best to
pass through the seashore both in going to and in coming from Gandola's house and that they would execute
the plan at 7:30 o'clock p.m. to coincide with suppertime.
Pastor admitted that he was a friend and trusted business associate of Jusep whom he first met in 1958. The
last time he talked to Jusep about the case was the day before (August 15, 1967) at around 7:00 o'clock in the
morning when Jusep instructed him to go to Leyte to warn Alfredo not to talk to the NBI agents (Exh. Q;
Record, pp. 270-273).
From Zamboanga City, Pastor accompanied NBI Agent Nunag to Hilongos, Leyte. Together with NBI Agent
Carlos Ortega and a policeman from Bato, Leyte, Nunag apprehended Alfredo. At first, Alfredo denied having
participated in the commission of the crime. But when the NBI agents arranged a confrontation between him
and Pastor, Alfredo admitted his involvement therein. After taking Alfredo's sworn statement, *** the NBI
agents took Pastor and Alfredo to Dipolog City via Cebu City (TSN, August 22, 1974, pp. 35-38). Thereafter,
appellant was arrested at the residence of his lawyer (TSN, supra, p. 45).
Pastor Cotillas, Alfredo Cotillas and Leoncio Jusep were charged with murder for the death of Jesus Gandola,
The municipal judge of Manukan, who conducted a preliminary examination on the case, issued a warrant for
the arrest of the three suspects. The record of the case was then forwarded to the Court of First Instance of
Zamboanga del Norte and the provincial fiscal filed the corresponding information before said court (Criminal
Case No. 4826).
When he was arraigned on November 16, 1967 Leoncio Jusep pleaded not guilty (Record, p. 48). After the case
was set for trial, Second Assistant Provincial Fiscal Hermogenes S. Balisado filed a motion to discharge Leoncio
Jusep as an accused alleging that after "a judicious study, evaluation and analysis of the evidence on record,"
he was convinced that the prosecution could not establish conspiracy between Jusep and his co-accused, and
therefore, it would be futile for the prosecution petition to proceed with the trial of the case with respect to
Jusep who would anyway be acquitted. He prayed that Jusep be "provisionally discharged from the
information. " The motion, dated November 28, 1967, was made with the conformity and signature of Leoncio
Jusep (Record, pp. 102-103).
The provisional dismissal of the case against Jusep was granted by the court for "lack of sufficient evidence to
connect him with the crime" (Criminal Case No. 4826 Decision, p. 2; Record, p. 107). Said dismissal order was
issued after the parties had agreed that the investigators would continue gathering evidence on the case
aimed at its refiling should the gathered evidence so warrant (Record, p. 82).
The trial of Alfredo and Pastor Cotillas proceeded. On August 20, 1969, the Court of First Instance of
Zamboanga del Norte, Branch II, promulgated a decision finding the Cotillas cousins guilty beyond reasonable
doubt of murder and imposed on them the indeterminate sentence of ten years and one day of prision

mayor to twenty years ofreclusion temporal and the payment jointly and severally of P12,000 indemnity to the
heirs of Gandola (Criminal Case No. 4826 Decision, p. 10; Record, pp. 106-115). Alfredo and Pastor Cotillas did
not appeal from said decision.
Angel Gandola, the victim's father, who was apparently convinced that Jusep was as guilty as Alfredo and
Pastor, initiated the taking of sworn statements of more witnesses. The affidavits were forwarded to the office
of the provincial fiscal. Consequently, the case was reopened and Fiscal Balisado started the reinvestigation on
August 24, 1970 (Record, p. 82).
Due to the delay in the issuance of a resolution regarding the reinvestigation, Angel Gandola referred the case
to the Department of Justice (Record, p. 53-54). Thereafter, on April 12, 1973, Fiscal Balisado issued a
resolution stating that there was no prima facie evidence against Jusep to warrant his prosecution for murder,
and dismissed the case against him without prejudice to its reopening "should new material evidence be
discovered" (Record, pp. 80-97).
On May 7, 1973, the Chief State Prosecutor directed Fiscal Balisado to transmit to his office the record of the
case and his resolution thereon. Five months later, then Undersecretary of Justice Efren I. Plana, through a
letter dated October 4, 1973, found that there was a prima facie case against Jusep, set aside Fiscal Balisado's
April 12, 1973 resolution and directed the Acting Provincial Fiscal to file with a competent court the
corresponding information against Leoncio Jusep for murder (Record, pp. 27-28).
On November 29, 1973, Third Assistant Provincial Fiscal Rodolfo T. Mata filed before the trial court a motion
to admit an information charging Jusep as the mastermind of the murder of Gandola with a prayer that Jusep
be arrested and that no bail be granted for his provisional liberty (Record, p. 1). Attached to the information
was a certification issued by Fiscal Mata which states that:
I HEREBY CERTIFY that a proper preliminary investigation No. 1222 against respondent LEONCIO
JUSEP has been conducted by Second Assistant Provincial Fiscal Hermogenes S. Balisado whose
resolution to dismiss was appealed to the Secretary of Justice who reversed said resolution of
Preliminary Investigation No. 1222 and found out that there exists a prima facie case or that
respondent Leoncio Jusep is probably guilty of the offense of Murder.
Dipolog City, November 29, 1973.
(Sgd.) RODOLFO T. MATA
Third Assistant Provincial Fiscal
SUBSCRIBED AND SWORN to before me this 29th day of November, 1973 at Dipolog City,
Philippines.
(Sgd.) RODABALLO Y. REALIZA
Acting Provincial Fiscal
On December 12, 1973, Jusep filed a motion to quash the information and to suspend the issuance of a
warrant of arrest on the grounds that Fiscal Mata had no authority to file the information because he did not
conduct the preliminary investigation pursuant to Republic Act No. 5180 and Presidential Decree No. 77; that
the filing of the information was merely a revival of Criminal Case No. 4826, and that pursuant to paragraph 6

of Department of Justice Circular No. 74 dated July 26, 1967, where several persons commit a crime but are
charged or investigated separately, the head of the office "shall see to it that the charges are investigated by
the same investigating fiscal" (Record, pp. 9-11). The prosecution opposed said motion.
In its resolution of December 14, 1973, the lower court granted the motion to quash "without prejudice to the
right of the fiscal who originally conducted the preliminary investigation to sign and file the corresponding
information" or should Fiscal Mata sign and file the information and prosecute the case, he should conduct a
"subsequent preliminary investigation in conformance with law" (Record, pp. 14-17).
Five days later, the lower court amended said order, reconsidering the quashal of the information, and holding
in abeyance the action on the motion to admit the information until the provincial fiscal shall have signed and
filed the corresponding information "as the authority that was delegated to him by the Department of Justice
to do cannot be redelegated" (Record, p. 18).
Hence, Fiscal Balisado took over the case (Record, p. 19). On December 27, 1973, the following amended
information was filed:
The undersigned Acting Provincial Fiscal, with leave of court and pursuant to its amendatory
order dated December 19, 1973, hereby amends the information on record and accuses
LEONCIO JUSEP as Principal by induction of the crime of MURDER, committed as follows:
That in the evening on or about the 1st day of August, 1967, in the municipality of Manukan,
Zamboanga del Norte, within the jurisdiction of this Honorable Court, the said accused
LEONCIO JUSEP being then the mastermind in the bizarre plot to liquidate one JESUS GANDOLA
alias Etot, conspiring, confederating and working together with PASTOR COTILLAS (Principal) by
indispensable cooperation and ALFREDO COTILLAS (Principal by direct participation) who were
already convicted by final judgment in a decision promulgated by this Honorable Court on
August 28, 1969 for the same crime of Murder in Criminal final Case No. 4826, and are still
presently serving their respective sentence, did then and there induce, offer a price and reward
to his co-accused Pastor Cotillas and Alfredo Cotillas, the latter having acted as the triggerman,
arming them with revolver Cal. 32, and all with intent to kill by means of treachery and evident
premeditation and by taking advantage of the darkness of the night to better accomplish their
evil motives in pursuance to their conspiracy, did then and there wilfully, unlawfully and
feloniously attack, assault and shoot said JESUS "Etot" GANDOLA while the latter was eating his
supper in his dwelling house thereby inflicting upon him gunshot wounds on his left lower chest
penetrating the abdominal and thoracic cavities, perforating the stomach, liver, diaphragm and
crushing his spleen which caused his death the following dawn despite the medical attendance
rendered to him; that as a result of the commission of the said crime, the heirs of the victim
suffered the following damages, viz:
1. Indemnity for the death of the
victim........................................... P12000
2. Loss of earning
capacity.............................5,000
3. Moral damages............................................10,000

4. Exemplary damages.....................................10,000
TOTAL......................................P37,000
CONTRARY TO LAW, with the qualifying circumstances of treachery and evident premeditation,
and the aggravating circumstance of nighttime, dwelling, and consideration of price and
reward.
Dipolog City (for Zamboanga,. del Norte), December 26, 1973.
(Sgd). RODABALLO Y. REALIZA
Acting Provincial Fiscal
The Acting Provincial Fiscal's motion to admit the amended information was opposed by the accused on the
ground that it did not contain a certification stating that a proper preliminary investigation had been
conducted before it was filed (Record, pp. 23-24). In view of that development, the Acting Provincial Fiscal
submitted to the Court Undersecretary of Justice Plana's letter of October 4, 1973 (Record, pp. 27-28).
In its order of January 21, 1974, the lower court resolved that the said letter would "suffice as the requisite
certification that forms part of the said amended information," admitted the said information, directed the
issuance of a warrant for the arrest, of the accused and fixed the bail at P40,000 (Record, p. 38).
The prosecution moved for a reconsideration of that order insofar as it granted the P40,000 bail (Record, pp.
45-49). On the other hand, the accused moved to quash the amended information on the grounds that the
officer who filed the information had no authority to do so; that the information did not conform substantially
to the prescribed form for lack of a certification that a preliminary examination or investigation had been
conducted; and that the accused was previously in jeopardy of being convicted or acquitted of the offense
charged because he had pleaded not guilty in Criminal Case No. 4826 when he was discharged as an accused
therefrom (Record, pp. 45-49).
The lower court resolved both motions in its order denying the motion to quash. In his arraignment, Jusep
pleaded not guilty of the crime charged (Record, p. 125).
The prosecution offered its version of the crime as narrated above. Thereafter, the defense presented Pastor
Cotillas as witness and he testified that sometime before August, 1967, he visited Barrio Baliw, Hilongos, Leyte
to look for "buseros" at the request of Leoncio Jusep. His cousin, Alfredo, went back with him to Manukan
with the seven "buseros" he had recruited for Jusep. On August 1, 1967, he and Alfredo went to Loquilos to
shoot Gandola. They had decided to kill Gandola because the latter chased him with a gun and boxed Alfredo.
Gandola was mad at him because he refused to buy fish from him.
During the commission of the crime, he hid among the coconut trees some twenty meters away and, after
Alfredo shot Gandola with his own gun, they went back to his (Pastor's) house. They did not meet anyone
along the way. A few days later, Alfredo returned to Leyte (TSN, July 18, 1975, pp. 31-34 & 37).
While he was a detention prisoner in the provincial jail of Zamboanga del Norte, Gandola's father and wife
"Estelito" visited him. Gandola's father told him that a case had already been filed against Jusep and that
should he agree to be a state witness in said case, Gandola's father would give him P5,000 (TSN, supra, p. 35).

Leoncio JusePinterposed alibi as his defense. He testified that on July 24, 1967, he left Manukan for Dapitan
City and from there, took a boat bound for Dumaguete City, arriving therein the following day. He proceeded
to the house of his younger brother, Tranquilino Jusep. Later, he went to Tanjay, Negros Oriental to buy "
sinamay " or " bulsahon " to be used as a fish net. In Tanjay, where there was a town fiesta, he stayed with
Jose Tabanda until the 27th of July. He gave P250 to Tabanda so that the latter could buy the "bulsahon"
before his return to Tanjay from Dumaguete City on the 29th of July. He had to go back to Dumaguete City
because he had a fever. He was treated by one Doctor Bueno who ordered the laboratory examination of his
urine, blood and stool. He obtained the result of the laboratory tests the following morning and gave them to
Doctor Bueno. For his cough and fever, Doctor Bueno gave him injections twice a day. He reported to Doctor
Bueno's clinic until August 2, 1967.
He left Dumaguete City around midnight of August 2, 1967 and arrived at Dapitan City in the early morning of
August 3. Then he boarded a jeep bound for Dipolog City and from there he proceeded to Manukan, arriving
there at around ten o'clock in the morning (TSN, January 29, 1976, pp. 51-56).
Jose Tabanda and Tranquilino Jusep corroborated Jusep's alibi. Ricardo Binondo testified that he heard the
news that Gandola was shot at around 7:00 o'clock in the evening of August 1 and that, while waiting for the
fishermen at the beach in Manukan, he saw prosecution witnesses Gundes and Villarin alighting from a boat at
around 8:00 o'clock that same evening (TSN, October 17, 1975, pp. 31-37).
The trial court did not give credence to the defense version. On December 23, 1976, it rendered the
aforementioned decision imposing the death penalty on Jusep. He filed a motion for its reconsideration but
the lower court denied it. Hence, the instant automatic review of the lower court's decision.
In his brief, appellant avers that the lower court erred in: (a) admitting the information against him without
the proper preliminary investigation; thus, infringing his right to due process of law; (b) giving credence to the
testimonies of Alfredo Cotillas, Arcelita Gandola, Angel Gandola and the other prosecution witnesses; (c)
finding that he conspired with Alfredo and Pastor Cotillas; thus, totally ignoring the affidavit executed by
Alfredo stating that he acted alone in shooting Gandola; (d) considering the statement of Gandola that it was
he who looked for Gandola's killer; (e) finding that he was positively Identified by Villarin and Gundes; (f)
discrediting his alibi and the oral and documentary evidence in support thereof; (g) completely discrediting the
testimonies of defense witnesses Pastor Cotillas, Jose Tabanda, Ricardo Binondo and Tranquilino Jusep; and
(h) finding him guilty as charged and imposing on him the death penalty.
Appellant's allegation of deprivation of due process of law resulting from the filing of the information without
a proper preliminary investigation is baseless.
Contrary to his allegation, the record shows that Fiscal Balisado did in fact conduct a preliminary investigation.
Although on the basis of said preliminary investigation, he recommended the dismissal of the charge against
appellant, his dismissal resolution was reversed by the Department of Justice.
Strictly speaking, no appeal was interposed from said dismissal resolution as the case was referred to the
Department of Justice even before said resolution was issued. However, when the Secretary of Justice later
reversed the dismissal resolution, he exercised his power "to alter, modify or nullify or set aside what a
subordinate officer had done in the performance of his duties and substitute the judgment of the former for
that of the latter" (Vda. de Jacob vs. Puno, G.R. No. 61554-55, July 31, 1984, 131 SCRA 144, 148 quoting
Noblejas vs. Salas, L-31788 & 31792, September 15, 1975, 67 SCRA 47). Another preliminary investigation
would have been superfluous because the Secretary of Justice based his order to file the information on his
review of the evidence presented during the preliminary investigation conducted by Fiscal Balisado.

Parenthetically, it should be noted that under the 1985 Rules on Criminal Procedure, in cases where the
Minister (now Secretary) of Justice reverses the resolution of the provincial or city fiscal or chief state
prosecutor, "he shall direct the fiscal concerned to file the corresponding information without conducting
another preliminary investigation or to dismiss or move for dismissal of the complaint or information" (Section
4, Rule 112).
On the merits of the case, We are convinced that the prosecution has proven beyond reasonable doubt that
appellant is guilty of masterminding the murder of Jesus Gandola.
Ironically, the sworn statements of appellant's trusted friend Pastor Cotillas helped in sealing the case against
him. Pastor's declaration in court that he executed those statements because he was afraid that the NBI
agents would manhandle him is entirely untrue as he himself admitted that physical force was never inflicted
on him. It seems, however, that Pastor was more apprehensive of the consequences of his revelations than
anything else. He was heavily indebted to Jusep and therefore, to his mind, telling the truth to the authorities
would be an act of betrayal. In fact, he tried to correct the damage his sworn statements had done to his
avowed friend, Jusep, by presenting the story that he was Alfredo's co-author of the crime and that it was he
who accompanied Alfredo when the latter performed the dastardly act, forgetting all the while that in two of
his sworn statements, he had stated that he was in the market selling fish when Gandola was murdered.
We hold that the testimony of Alfredo Cotillas alone is sufficient to prove appellant's direct involvement in the
crime. The testimonies of Arcelita and Angel Gandola merely fortify the fact that it was appellant's Idea to
liquidate Gandola, and the testimonies of the other witnesses, especially those regarding appellant's presence
at the scene of the crime, prove beyond reasonable doubt that appellant is as guilty as the convicted Cotillas
cousins for the murder of Gandola.
The credibility of triggerman Alfredo Cotillas as a witness has remained intact notwithstanding the attempts of
the defense to demolish it. Concededly, the testimony of a co-conspirator or a co-accused should be treated
with caution. However, the same may be admitted and considered should there be no convincing proof that
his credibility is impaired.
In this case, the defense failed to show any reason why Alfredo's testimony should not be given weight and
credence. What it considered as a taint to his credibility is the fact that it took him more than two years to
reveal the complicity of appellant in the murder. But the delay is not without an explanation.
During the trial of Criminal Case No. 4826, Alfredo and Pastor were both defended by a counsel provided by
appellant (TSN, August 15, 1974, pp. 37-38). It was but natural that said counsel would not present them in
court for there was the risk that during cross-examination, they might implicate their benefactor, appellant
herein. Moreover, until the information for murder was filed against Jusep, there was no occasion for Alfredo
to appear in court to tell the truth. Coupled with that is the fact that even after his conviction, Alfredo was still
entertaining the hope that Jusep would make good his promise to give him P2,000. That hope disuaded him
from implicating Jusep in his sworn statement before the NBI agents (TSN, supra, pp. 49-50, 63).
In said sworn statement, Alfredo allegedly admitted that he was alone when he shot Gandola. Appellant now
contends that said sworn statement was "suppressed" by the prosecution. This contention is unfounded. Said
sworn statement was an exhibit in Criminal Case No. 4826 the record of which had been lost (TSN, supra, pp.
5-6; Record, pp. 16 & 116). If the appellant was really convinced that it was vital to his defense, then he should
have exerted extra efforts in procuring it so that it could be presented in court.

Appellant's professed non-involvement in the crime is belied by his frequent visits to the Cotillas cousins while
they were detained in the provincial jail. According to the warden, appellant was particularly interested in the
actual date of the Cotillas' transfer to the San Ramon Penal Colony as he wanted to give them money or
"pabalon" (TSN, November 14, 1974, p. 24). Hence, it is not far-fetched to assume that he was behind Pastor's
return to said colony four days after his release on parole on July 17, 1974. Although Pastor claimed that he
returned there to visit Alfredo and to give him P150, We are convinced that the purpose of his trip was
actually to make Alfredo sign an affidavit claiming sole authorship of the murder and ownership of the fatal
weapon (TSN, August 15, 1974, pp. 40-41; July 18, 1975, pp. 48-49; September 4, 1975, pp. 3-4).
Appellant's alibi cannot save him either. Although he presented evidence that he was in Dumaguete City late
in July, 1967, the possibility that appellant could have returned to Manukan to oversee the execution of his
devious plan to kill Gandola, is not remote. As observed by the trial court, considering that the distance
between Manukan and Dipolog City is only 38 kilometers and that between the Zamboanga peninsula and
Dumaguete City it takes only three to four hours ride on a pumpboat, it is not impossible for appellant to have
left Manukan after the commission of the crime and to be in the same place in the morning of August 2, 1967.
Moreover, his defense of alibi totally crumbles in the face of his trusted friend Pastor's sworn statement that
at 6:00 o'clock in the morning of August 2, appellant himself informed Pastor that Gandola was not killed
instantaneously (Exh. P).
Alibi being the weakest of all defenses, it cannot prevail over direct positive evidence on the presence of the
appellant at the scene of the crime (People vs. Reyes, L-18892, May 30, 1966, 17 SCRA 309; People vs.
Venezuela, L-48057, August 19, 1982, 115 SCRA 865). Appellant's presence therein proves his complicity and
evinces culpable association with the triggerman (People vs. Rivera, L-14077, March 31, 1964, 10 SCRA 462). It
is worth noting that Villarin and Gundes were not the only ones who saw appellant near Gandola's house.
Felipe Santander, in his sworn statement, stated that before 8:00 o'clock in the evening of August 1, 1967, he
met Alfredo and the appellant along the seashore of Manukan (Exh. A). His refusal on the witness stand to
Identify the person he saw running on the seashore with Pidong Cotillas is explained by his own admission that
appellant was his friend (TSN, August 22, 1974, pp. 19 & 21).
As it was the appellant who conceived the perpetration of the crime, met with the Cotillas cousins to
deliberate on its execution and was present at the time of its consummation, he is a principal by direct
inducement (U.S. vs. Bundal, 3 Phil. 89). His promise of P2,000 to Alfredo is equivalent to moral coercion as it
was the moving cause which impelled Alfredo to kill Gandola, (U.S. vs, Mijares, 3 Phil. 447).
Conspiracy has also been proven by the prosecution. Appellant and the Cotillas cousins came to an agreement
concerning the killing of Gandola and decided to go through with it. All three of them are therefore liable as
co-principals and the act of each conspirator is the act of all (Art, 8, par. 2, Revised Penal Code; People vs.
Timbang, 74 Phil. 295).
Treachery qualified the killing which was done in such a manner as to completely surprise the victim and make
him a defenseless target. Nocturnity is absorbed by treachery. Evident premeditation, which was alleged as a
qualifying circumstance in the information, should be considered only as a generic aggravating circumstance
as treachery is sufficient to qualify the killing as murder (People vs. Diaz, L-24002, January 21, 1974, 55 SCRA
178). The crime was attended by evident premeditation because after appellant and the Cotillas cousins had
planned the manner by which they would kill Gandola, they allowed a sufficient interval of time to elapse
wherein they could have dispassionately considered the consequences of their act.
Although Alfredo did not actually receive the P2,000 promised him by the appellant, the price, promise or
reward is a generic aggravating circumstance because it impelled Alfredo to shoot Gandola. Dwelling should

also be considered as a generic aggravating circumstance with regard to appellant even if it was Alfredo who
went under Gandola's house, because of the proven conspiracy in the commission of the crime.
Under Article 248 of the Revised Penal Code, murder is punishable by reclusion temporal maximum to death.
There being three generic aggravating circumstances and no mitigating circumstances to offset them, the
lower court correctly imposed the death penalty (Article 64, (3) & (6), Revised Penal Code). However, pursuant
to Section 19, Article III of the 1987 Constitution, the death penalty imposed by the lower court should be
reduced toreclusion perpetua (People vs. Laguardia, G.R. No. 63243, February 27, 1987).
WHEREFORE, the decision of the lower court is hereby affirmed with the modification that appellant is hereby
meted the penalty of reclusion perpetua and ordered to pay the heirs of Jesus Gandola an indemnity in the
amount of thirty thousand pesos. Costs against the appellant.
SO ORDERED.
Teehankee, C.J., Yap, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento and Cortes, JJ., concur.

Footnotes
* Judge Dimalanes B. Buissan, presiding.
** The record of Criminal Case No. 4826 for murder with Alfredo and Pastor Cotillas as
defendants, was lost in the files of the lower court's clerk of court (Record, pp. 66 & 116).
*** This sworn statement was not presented in court. It must have been part of the lost record
of Criminal Case No. 4826.

FIRST DIVISION

[G.R. No. 126287. April 16, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ORLANDO HERRERA DE LEON, accused-appellant.

DECISION
PARDO, J.:
The case is an appeal from the decision[1] of the Regional Trial Court, Makati, Branch 136, convicting
Orlando Herrera de Leon of murder, and sentencing him to reclusion perpetua and to indemnify the heirs of
the victim, Michael Oris, in the amount of P50,000.00 as moral damages.

On May 2, 1988, Assistant Fiscal Leodegario C. Quilatan of Rizal filed with the Regional Trial Court,
Makati an Information charging Orlando Herrera de Leon with homicide, committed as follows:
That on or about the 28th day of April, 1988, in the Municipality of Paraaque, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, without
justifiable motive, did then and there willfully, unlawfully and feloniously shoot with a gun one Michael Oris,
thereby inflicting upon the latter serious and mortal shot wounds which directly caused his death.
CONTRARY TO LAW.[2]
After re-investigation, however, on March 27, 1989, the prosecution withdrew the Information for
homicide and filed an amended Information charging accused Orlando de Leon with murder, committed as
follows:
That on or about the 28th day of April, 1988, in the Municipality of Paraaque, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, armed with a gun, with intent to
kill, by means of treachery with evident premeditation, did then and there willfully, unlawfully and feloniously
attack, assault and shoot with the said gun one Michael Oris y Rodriguez, thereby inflicting upon him serious
and mortal gunshot wounds which directly caused the death of said Michael Oris y Rodriguez.
CONTRARY TO LAW.[3]
On September 19, 1989, upon arraignment, accused de Leon pleaded not guilty.[4] Trial ensued.
On April 28, 1988, at 11:00 p.m., Arthur Alfahora, Deo Vergara, Gilbert Castro, Jess Hernandez, Archie
Beticon and Michael Oris were walking along the ricefield near Don Jose Greencourt St., Gatchalian
Subdivision, Paraaque, Metro Manila.[5] Suddenly, they heard gunshots fired in their direction. The shots
originated approximately 60 meters from them. Arthur Alfahora saw accused de Leon standing outside the
perimeter fence of the house of the mayor. Through the light of an electric post, Arthur saw accused de Leon,
in white shirt and maong pants, firing at them.[6] Archie Beticon, in the moonlit night, saw accused de Leon
holding a long firearm pointed at them.[7] Frightened, the boys started running away from the gunfire but
Michael Oris, who was a little overweight, lagged behind the group. Moments later, Michael was hit. He fell to
the ground. He cried out to his companions to help him but the other boys continued running and left the
scene. Later, the other boys returned with Michaels father and they brought the injured Michael to the
Olivares Hospital at Sucat Road. A few days later, Michael died.
Dr. Danilo Gajardo of the PC Crime Laboratory conducted an autopsy on the cadaver of the deceased
Michael Oris, and concluded that the deceased sustained two gunshot wounds and three abrasions. [8] He
opined that the deceased was shot from behind, based on the point of entry and direction of the bullets. [9] The
two gunshot wounds were fatal because vital organs were lacerated. He did not find the point of exit of the
bullets, and the slugs were not recovered.
Rodolfo Oris, father of the deceased, testified that he brought his son to the hospital and incurred
expenses for the medical treatment given to Michael.[10] Michael was confined for three days but died
nonetheless. Michael was buried at the Manila Memorial Park, with expenses that were duly
receipted. Rodolfo Oris presented receipts with amounts as follows: P30,483.00 for the hospital expenses,
P8,500.00 for the funeral and P3,190.00 for the burial.[11] He stated that the entire family was shocked at the
unexpected death of his son.
Accused Orlando de Leon denied committing the crime and invoked alibi.[12] He stated that he was a
member of the Civil Security Unit of the Paraaque Municipal Government since 1986 to guard the Municipal

Hall and the house of Municipal Mayor Wilfrido Ferrer, located at Don Jose Greencourt Road, near the
Gatchalian Subdivision. When he guarded the house of the mayor, his shift started at 3:00 in the afternoon
until 11:00 in the evening. He had two other companions in the shift: Rey de Leon and another one whose
name he could not remember.
On April 28, 1988, he was relieved at 10:50 in the evening by policeman Teddy Papa and two other
members of his security unit whose names he could not recall. After his shift, accused de Leon claimed that
he walked with Rey de Leon five hundred (500) meters to the corner of Don Arcadio Santos Avenue and
Gatchalian Avenue. Then, both of them took a passenger jeepney. Accused de Leon alighted at the corner of
Sto. Nino and Aquino Avenue, while Rey de Leon continued his ride. Thereafter, accused de Leon took a
tricycle to his residence at Col. de Leon St., Sto. Nio. He reached his house at 11:15 that night. His wife and
his children were not at home. He slept that night up to 10:00 in the morning of the next day.
Accused-appellant denied shooting the victim with a long firearm. As a member of the security unit, he
carried only a batuta made of yantok. He denied knowing Michael Oris, but claimed that he knew Michaels
father, Rudy Oris. He never had any misunderstanding with Rudy Oris or any of the latters family members.
Reynaldo de Leon, a rebuttal witness, alleged that he knew accused Orlando de Leon because they were
both security personnel detailed to guard the house of Mayor Wilfrido Ferrer. On April 28, 1988, his shift was
from 7 in the morning till 3 in the afternoon. He carried a firearm, an M16, which he turned over to the
reliever or to the next guard. He denied accused de Leons testimony that they left their place of work
together on the evening of April 28, 1988. He also denied riding in the same jeepney with accused de Leon
that day.[13]
Teddy Papa, a policeman, also testified that he knew accused de Leon because he was also part of the civil
security assigned to guard the house of the mayor. His shift lasted from 11 in the evening until 7 in the
morning. On April 28, 1988, he saw accused de Leon before 11:00 in the evening armed with an M16 rifle at
the barracks located behind the house of the mayor.[14]
On January 31, 1996, the trial court rendered a decision, the dispositive portion of which states:
WHEREFORE, and in consideration of all the foregoing, the Court finds the accused, Orlando de Leon, GUILTY
beyond reasonable doubt of the crime of Murder, and it hereby sentences him to suffer an imprisonment of
Reclusion Perpetua, and to pay the heirs of the victim, Michael Oris, the amount of P50,000.00 by way of
moral damages, without any subsidiary imprisonment in case of insolvency.
SO ORDERED.
Makati City, January 31, 1996.
(Sgd.)
JOSE R. BAUTISTA
Presiding Judge[15]
Hence, this appeal.[16]
Accused-appellant alleges that the trial court, in convicting him of murder, merely considered the
weakness of his defense rather than the strength of the prosecution evidence.
We disagree. The trial court cited the testimony of the eyewitnesses to the crime as well as rebuttal
witnesses who established accused-appellants presence at the scene of the crime. Two eyewitnesses saw

accused-appellant holding a long firearm and shooting at them. Aside from the Meralco electric light post that
provided adequate lighting that night, there was moonlight illuminating the area where accused-appellant
stood, allowing the eyewitnesses to see his face. The two boys even noticed what the accused-appellant wore
on the night in question, which statements were not disputed by the defense. The natural reaction of victims
of criminal violence is to strive to notice the appearance of their assailants and observe the manner the crime
was committed.[17]
Moreover, the prosecution eyewitnesses did not have any motive to implicate accused-appellant in a
serious crime like murder. Where there is no evidence that the principal witnesses of the prosecution were
actuated by ill-motive, it is presumed that they were not so actuated and their testimony was entitled to full
faith and credit.[18]
Furthermore, the testimonies of the eyewitnesses were corroborated by the findings of the medical
expert that the victim was shot from behind.
Accused-appellant pointed out, however, that it was not possible for him to have shot anybody because
he was not issued a firearm in guarding the perimeter fence of the mayors house. He merely used a
nightstick made of yantok or rattan. However, this contention was belied by the testimony of two witnesses
who also worked with accused-appellant as part of the civil security of the mayor. They stated that they
carried an M16 rifle during their shift which they turned over to the guard of the next shift.
On the other hand, accused-appellants defense consisted of alibi. For alibi to prosper, the accused must
prove that he was somewhere else when the crime was committed and it was physically impossible for him to
have been at the scene of the crime.[19] In this case, accused-appellant alleged that he went home when the
killing occurred. However, no other witness could support his alibi for his family was not at home and the
other person who could attest to the time he went home was his co-worker, Rey de Leon. Unfortunately, Rey
de Leon, whom accused-appellant claimed he rode with going home, categorically denied doing
so. Noteworthy too is the fact that accused-appellants house appeared to be a few minutes ride from his
place of work, thus rendering his presence at the scene of the crime physically possible. An
unsubstantiated alibi cannot overcome positive and credible evidence pointing to accused as the perpetrator
of the crime.[20]
From the foregoing evidence, it was clearly established beyond reasonable doubt that accused-appellant
was responsible for the killing of Michael Oris on April 28, 1988.
The question is whether the crime committed by accused-appellant was murder or homicide. Accusedappellant insists that the trial court erred in convicting him of murder, in the absence of any qualifying
circumstances. Indeed a look at the trial court decision reveals that the trial court judge failed to explain why
the offense was qualified to murder. Although the information explicitly alleged that the crime was
committed with treachery and evident premeditation, the trial court in its decision was silent about the
presence or absence of these qualifying circumstances. The trial court failed to specifically discuss the
qualifying circumstances or any other modifying circumstance in the body or in the dispositive portion of the
decision. Such a decision does not conform to the requirement of the Rules of Court that a judgment of
conviction shall state the legal qualifications of the offense constituted by the acts committed by the accused,
and the aggravating or mitigating circumstances attending the commission thereof, if there are any. [21]
Nevertheless, such lapse is not fatal to the validity of the decision. [22] An appeal in a criminal proceeding
throws the whole case open for review and it becomes the duty of the appellate court to correct any error as
may be found in the appealed judgment, whether it is made the subject of assignment of errors or
not.[23] Thus, we can review the evidence on record to evaluate if there is sufficient basis for convicting
accused-appellant of murder or of homicide.

The essence of treachery is the swift and unexpected attack on an unarmed victim without the slightest
provocation on the part of the victim.[24] Treachery is appreciated when the following conditions are
present: 1) the employment of means of execution that gives the person attacked no opportunity to defend
himself or to retaliate, and 2) the means of execution be deliberately and consciously adopted. [25] In this case,
the victim was peacefully walking along the ricefield with his friends, when accused-appellant, with the use of
a long firearm and without warning, fired upon the unarmed teenagers giving the latter no opportunity to
repel the aggression or defend themselves. Thus, the manner in which the victim was killed showed the
presence of treachery in the commission of the crime.
With respect to evident premeditation, we find this circumstance lacking in this case. For evident
premeditation to be appreciated as an aggravating circumstance, there must be proof, as clear as the
evidence of the crime itself, of the following elements: 1) the time when the offender determined to commit
the crime; 2) an overt act manifestly indicating that he clung to his determination; and 3) a sufficient interval
of time between the determination and the execution of the crime to allow him to reflect upon the
consequences of his act.[26] Neither the record nor the appealed decision mentions the existence of the
foregoing essential elements for a positive finding of evident premeditation. When it is not shown as to how
and when the plan to kill was hatched or what time had elapsed before it was carried out, evident
premeditation cannot be considered.[27]
Considering that treachery qualified the crime, accused-appellant is guilty of murder.
At the time the crime was committed on April 28, 1988, the penalty prescribed for murder was reclusion
temporal in its maximum period to death.[28] In the absence of any mitigating or aggravating circumstances,
the penalty shall be imposed in its medium period, which is reclusion perpetua.[29]
Regarding the award of damages, we note that the lower court only awarded fifty thousand pesos
(P50,000.00) as moral damages. We have uniformly awarded the amount of fifty thousand pesos (P50,000.00)
as civil indemnity, without need of further proof other than the fact of death as a result of the crime and proof
of accused-appellants responsibility therefor.[30] The amount of forty two thousand one hundred seventy
three (P42,173.00) pesos shall be awarded as actual damages for the actual expenses incurred by the family of
the deceased as evidenced by receipts.
WHEREFORE, the Court hereby AFFIRMS with MODIFICATION the decision of the Regional Trial Court,
Makati, Branch 136, in Criminal Case No. 88-1631, convicting accused-appellant Orlando Herrera de Leon of
murder and sentencing him to reclusion perpetua. The Court orders accused-appellant to pay the heirs of the
victim the amount of fifty thousand (P50,000.00) pesos as moral damages, fifty thousand (P50,000.00) pesos
as civil indemnity and forty-two thousand one hundred seventy-three (P42,173.00) pesos as actual damages.
Costs against accused-appellant.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur.

[1]

In Criminal Case No. 88-1631, Judge Jose R. Bautista, presiding.

[2]

RTC Record, p. 1.

[3]

Amended Information dated March 27, 1989, RTC Record, p. 37.

[4]

Certificate of Arraignment, RTC Record, p. 51.

[5]

TSN, November 10, 1989, pp. 3-31.

[6]

TSN, August 24, 1992, pp. 28-31.

[7]

TSN, December 14, 1989, pp. 9-13.

[8]

Medico-legal Report, RTC Record, pp. 376-377.

[9]

TSN, August 13, 1990, pp. 3-20.

[10]

TSN, August 30, 1990, pp. 2-7.

[11]

Exhibit F, dated May 3, 1988, issued by the Olivarez General Hospital, RTC Record, p. 379; Exhibit G,
dated May 4, 1988, issued by Holy Trinity Chapels, RTC Record, p. 380; Exhibit H, dated May 4, 1988, issued
by Manila Memorial Park, RTC Record, p. 381.
[12]

TSN, October 11, 1990, pp. 3-37.

[13]

TSN, March 2, 1993, pp. 2-5.

[14]

TSN, March 2, 1993, pp. 6-7.

[15]

Decision, RTC Record, pp. 715-739, at p. 739.

[16]

Notice of Appeal dated March 1, 1996, Rollo, p. 63.

[17]

People v. Lopez, 312 SCRA 684, 695 (1999).

[18]

People v. Lumacang, 324 SCRA 254, 267 (2000); People v. Manegdeg, 316 SCRA 689, 707 (1999).

[19]

People v. Suelto, 325 SCRA 41, 53 (2000); People v. Tumaru, 319 SCRA 515, 528 (1999), citing People v.
Baniel, 275 SCRA 472, 483 (1998); People v. Nialda, 289 SCRA 521, 532 (1998).
[20]

People v. Reduca, 301 SCRA 516, 535 (1999); People v. Guarin, 317 SCRA 234, 242 (1999).

[21]

Rule 120, Section 2, 1985 Rules of Criminal Procedure.

[22]

People v. Valerio, 197 Phil. 882, 908 (1982).

[23]

People v. Calayca, 301 SCRA 192, 206 (1999); People v. Pineda, 311 SCRA 368, 376 (1999).

[24]

People v. Lumacang, 324 SCRA 254, 267-268 (2000); People v. Manegdeg, 316 SCRA 689, 709 (1999);
People v. Ronato, 316 SCRA 433, 441-442 (1999).
[25]

People v. Molina, 312 SCRA 130, 136 (1999).

[26]

People v. Barellano, 319 SCRA 567, 589 (1999).

[27]

People v. Enolva, 323 SCRA 295, 310-311 (2000).

[28]

Article 248, Revised Penal Code.

[29]

Article 64(1), Revised Penal Code; People v. Sanchez, 308 SCRA 264, 286 (1999).

[30]

People v. Barona, 323 SCRA 239, 247 (2000).

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 102063 January 20, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROLANDO DE LA CRUZ y GOMEZ @ BLUT, accused-appellant.
The Solicitor General for plaintiff-appellee.
Francisco Sanchez III and Public Attorney's Office for accused-appellant.

DAVIDE, JR., J.:

Rolando de la Cruz y Gomez @ Blut was charged with the crime of Robbery with Homicide before the Regional
Trial Court (RTC) of Manila in an Information filed on 8 November 1988, the accusatory portion of which reads:
xxx xxx xxx
That on or about October 1, 1988, in the City of Manila, Philippines, the said accused,
conspiring and confederating with others whose true names, identities and present
whereabouts are still unknown, and helping one another, by means of craft, that is, while on
board a passenger jeep and pretending to be passengers thereof, did then and there wilfully,
unlawfully and feloniously, with intent of gain and by means of force, violence and intimidation,
to wit: by then and there pointing their bladed weapons and firearm and forcibly taking,
robbing and carrying away the following from ABEL REQUEJO Y REFE: Citizen wristwatch
P800.00, one (1) wallet containing P220.00, one (1) Saudi Riyal, PRC ID, driver's license and
other important papers, all valued at P1,020.00 plus, belonging to said ABEL REQUEJO Y REFE,
against his will to the damage and prejudice of said owner in the aforesaid amount of
P1,020.00, Philippine currency; that by reason of and on the occasion of the said robbery, the
said accused, in pursuance of their conspiracy and with treachery, did then and there wilfully,
unlawfully and feloniously, with intent to kill, attack, assault an (sic) use personal violence upon
the person of VENANCIO ESTACIO Y PANELO by stabbing him twice with a bladed weapon on
the chest, thereby inflicting upon him stab wounds which are necessarily fatal and mortal and
which were the direct and immediate cause of his death thereafter.
Contrary to law. 1
The case was docketed as Criminal Case No. 88-67914 and was raffled off to Branch 5 of the said court.

Upon his arraignment on 4 January 1989, 2 Rolando de la Cruz, hereinafter referred to as the Appellant,
entered a plea of not guilty.
Trial on the merits ensued thereafter. The prosecution presented as its witnesses P/Cpl. Salvador Fradejas,
Sotero Dionisio, Abel Requejo, Catalina Dionisio and Dr. Maximo Reyes. Appellant took the witness stand in his
defense and presented Rita dela Cruz, his mother, as his lone witness.
On 21 September 1990, the trial court promulgated its decision, 3 dated 17 September 1990, the dispositive
portion of which reads:
WHEREFORE, finding the accused ROLANDO DELA CRUZ y GOMEZ GUILTY beyond reasonable
doubt of the crime of Robbery with Homicide, sentences (sic) him to suffer the penalty of LIFE
IMPRISONMENT; to indemnify the heirs of deceased Venancio Estacio y Panelo the sum of
THIRTY THOUSAND PESOS (P30,000.00) and pay the costs.
SO ORDERED. 4
The conviction is based on the evidence for the prosecution which is summarized by the trial court as follows:
Sotero Dionisio is a Jeepney driver married to Catalina Asajar Dionisio. The jeepney that he
drives belongs to his father-in-law and plies the Punta-Quiapo route. On October 1, 1988, at
about 6:30 to 7:00 in the evening, as was his habit, he was driving the said jeepney
accompanied by his wife, Catalina who was then seated beside him in the front seat while
picking-up passengers at P. Sanchez Street in front of the Lourdes Hospital heading towards Sta.
Mesa-Quiapo. According to Dionisio, there were about fifteen (15) passengers beside (sic) his
wife. The jeepney was travelling at its usual pace, when he heard one (sic) of the passengers
was pushed outside and fell overboard. That the thrown (sic) passenger rolled on the road.
Seeing the fall of the passenger, he tried to stop the jeepney, but a male passenger seated at
his back poked a gun at his head and shouted to (sic) go faster or he will blow his head off. At
the same time, the man hanging at the rear running board pointed a knife at the passengers.
According to him, there were other members of the holdupper (sic) who were seated on the
rear passenger seats who (sic) armed with knives collected from the passengers their valuables.
That Dionisio was ordered to stop the jeepney in front of the NCBA where the five (5) who
partook in the hold-up where (sic) the same men who, together boarded his Jeepney near the
foot of the Lambingan Bridge, alighted. That he came to know, aside from the hold-up,
committed in his jeepney, a (sic) passenger while in the process of being divested of his
valuable (sic) was stabbed by the holduppers. With the wounded passenger, he immediately
proceeded to the hospital.
Abel Requejo, an engineer who was a passenger of the said jeepney during the hold-up testified
that he was seated at one of the back seats. That when the hold-up was announced, he was
told not to make a false move, while the holdupper's knives were pointed at the passengers
including himself, he was divested of his Seiko gold watch worth Eight Hundred Pesos
(P800.00), Two Hundred Pesos (P200.00) cash and other valuables by a man pointing a knife at
him. He identified the man as accused Rolando dela Cruz. He claimed, the (sic) light inside the
jeepney was bright at the time of the hold-up. He also said that the other passengers of the
jeepney were divested of their valuables, and that, one of the passengers while being robbed
by the holduppers, was stabbed and fatally wounded. Likewise, Mrs. Catalina Asajar Dionisio,
wife of driver Sotero Dionisio, who at the time of the hold-up was seated at the front seat

beside her driver-husband, identified accused Rolando dela Cruz as one of the holduppers who
divested the passengers of the jeepney their (sic) valuables.
That later, after the holduppers had alighted from the jeepney, they proceeded to bring the
wounded passenger at (sic) the Unciano General Hospital. The patient Venancio Panelo Estacio
the jeepney passenger and one of those who were robbed of their valuables, and the one
stabbed was declared dead-on-arrival. The cadaver was later brought to the International
Funeral Homes at Sta. Mesa, Manila where, it was autopsied the following day by Dr. Maximo
Reyes. Dr. Reyes after conducting an autopsy of the cadaver, issued a written autopsy report
(Exhibit "E"), a sketch describing the two (2) stab wounds on the chest (Exhibit "E-1" and "F-1")
as the first wound on the chest, not fatal. The second wound also on the chest Exhibit "E-2" and
"F-2" according to him was a fatal wound. That the wound was inflicted while the victim was
stooping facing the assailant. He also identified the Certificate of Identification of Victim
Venancio Panelo Estacio, Exhibit "D". 5
Upon the other hand, appellant's version is summarized by the trial court in this manner:
Accused Rolando dela Cruz claimed that he is a construction worker at the New Panaderos
Street, Sta. Ana, Manila. That he was employed by one Eddie San Jose. He likewise claimed, that
on October 1, 1988, he reported for work. That at about 5:00 in the afternoon, he left work and
proceeded straight for home. According to him, he arrived at his house which he shared with
his mother Rita, at 3290 V. Mapa Street, Sta. Cruz, Manila about (sic) 6:30 in the evening. From
that time, up to the following morning, he never left his house. He denied participation to (sic)
the robbery homicide he is being charged of (sic).
According to him, Pat. Intia was angry at him because Pat. Intia is the compadre of one Erning
Manalo the one who stabbed him and as a result thereof, a case was filed by him against said
Erning Manalo. That Pat. Intia attributed to him all the crimes and petty crimes committed in
their locality. Pat. Intia is a neighbor of his, his house only (sic) some sixty (60) meters away
from each other (sic). That he was able to talk to Engineer Requejo, one of the complainantwitnesses against him, and he claimed to have been told Requejo testified (sic) against him
because he was a trouble-maker (sic) in their place. In cross-examination however, he admitted
not knowing any of the complainant-witnesses mentioned. He likewise admitted that his house
where he claimed he was at the time of the incident was only sixty (60) meters away from the
place of the incident, and that, inspite of its proximity he claim (sic) not to know that robberyhold-up (sic) did occur in the place; that he came to know about it when he was arrested on
November 22, 1988. His mother Rita dela Cruz collaborated the testimony of his (sic) son
accused Rolando dela Cruz. She also claimed her (sic) son at the time he was arrested was
pistol-whipped and maltreated by Pat. Intia and his police companion. 6
We find the above summation of the evidence to be amply supported by the transcripts of the stenographic
notes of the testimonies of the witnesses presented by the parties.
The trial court gave full faith and credit to the version of the prosecution. It could not believe that Abel
Requejo, an educated man, and Mrs. Catalina Dionisio, the wife of the driver of the jeep which was held up,
whose testimonies were clear and convincing, would lie to the court. It likewise ruled that since a conspiracy
existed among the hold-uppers, each shall suffer the consequences of their criminal acts, including the
homicide committed during the hold-up. It rejected the appellant's version which it described as a mere denial
corroborated by the "loyalty vote" of his mother. 7

Unable to accept the verdict, the appellant filed his notice of appeal on 25 September 1990. 8 In its Order of 26
September 1990, the trial court gave due course to the appeal, but erroneously directed the elevation of the
case records to the Court of Appeals. 9 The latter, however, transmitted the same to this Court on 12
November 1991. 10 We accepted the appeal 11 on 20 November 1991.
In the Brief for the Accused-Appellant, 12 submitted by the Public Attorney's Office, only one (1) error is
assigned:
The trial court gravely erred in convicting Accused-Appellant Rolando dela Cruz despite the
weakness and lack of concreteness of the prosecution's evidence on the question of whether or
not the accused-appellant is the author of the crime charged.
Clearly, the issue raised is factual and involves the credibility of the witnesses, a matter addressed to the trial
court 13 because it is in a better position to decide such questions, having heard the witnesses and observed
their deportment and manner of testifying during the trial. 14 Hence, its findings on the credibility of witnesses
are entitled to the highest degree of respect and will not be disturbed on appeal in the absence of any clear
showing that the trial court overlooked, misunderstood or misapplied some facts or circumstances of weight
and substance which would have affected the result of the case. 15 That absence is all too evident in the
instant case. The identity of the appellant and his participation in the daring robbery were established beyond
doubt principally by the testimonies of Abel Requejo and Mrs. Catalina Dionisio. The appellant sought to
discredit the evidence for the prosecution as regards his identification on the basis of the alleged weakness of
the testimony of the driver of the passenger jeepney, Sotero Dionisio, who admitted that since he was driving
the vehicle and managed only a quick glance at the mirror, he could not state what role the appellant played.
The appellant likewise challenges the testimony of Abel Requejo which allegedly did not actually show that the
latter positively saw the face of the former. The very portions of the transcripts of the stenographic notes of
the testimonies of the said witnesses, reproduced by the appellant in his Brief to prove the foregoing
conclusions, establish a contrary conclusion. Although Sotero admitted that he was driving the jeepney
throughout the incident, it is clear from his testimony that although he was unable to state the specific role
played by the appellant during the hold-up, he (Sotero) was able to identify the latter as one of the five (5)
hold-uppers inside the jeepney. Thus, even from the portion quoted by the appellant, We have the following
question propounded to and answer given by Sotero:
FISCAL BAUTISTA (to witness).
Q So, in other words, will you be able to tell the court, what role the accused
played actually in side the jeepney from the time the gun was poked to your
head up to the time that you stopped?
A I cannot really state what role he played, but I saw him there inside the
jeepney. 16(Emphasis supplied)
xxx xxx xxx
The defense was quite unfair to this Court in reproducing the above-quoted portion for only that segment
favorable to the appellant was cited. It is to be observed that on the very page containing the above-quoted
portion is to be found Sotero's categorical declaration that the appellant was indeed one of the five (5) holduppers. Thus:
FISCAL BAUTISTA

Q What about the man holding a gun, was he in the group?

A Yes, sir.
Q Now, would you be able to identify any of those five men?
A Yes, sir.
Q Who among the five men can you identify?
A I can identify at least two if I can see them.
Q Now, will you look around inside the courtroom and tell the Honorable Court if
any of those five men is (sic) inside the court room today?
A Yes, sir.
Q Will you please look around and point to the man?
INTERPRETER:
Witness pointing to a person who answers in (sic) the name of Rolando dela
Cruz. 17(Emphasis supplied)
Aside from this, the following answers of witness Requejo on cross-examination also quoted in the Brief
are erroneously interpreted to mean that the said witness did not see the appellant's face:
FISCAL BAUTISTA (to witness):
Q So, you are saying that the accused poked a knife at you while you were facing
one another?
A Yes, sir.
xxx xxx xxx
Q So, while you were doing these, you are (sic) more concentrated in looking at
your watch and your wallet?
A Yes, sir.
Q So, you have no time in looking (sic) at that person poking the knife?
A Yes, sir. 18
We are at a loss as to how these questions and answers could have been misunderstood and used to support
the appellant' s conclusion. It is clear that the said witness was "facing" the appellant during the hold-up. The
answer to the last question reproduced above confirms the fact that indeed, the witness was facing the
appellant and therefore, had an unobstructed view of his face.

The identification of the appellant as one of the hold-uppers was further bolstered by the testimony of
Catalina Dionisio who declared thus:
FISCAL BAUTISTA (to witness)
Q With respect to those five companions together with that man, could you see
whether anyone of them is now present in this court?
A Yes, sir.
Q Will you point to him if anyone of those persons who were divesting the
passengers is inside the court room now?
A Yes, sir.
Q Will you please point to him?
INTERPRETER:
Witness pointing to a person who answers in (sic) the name of Rolando dela
Cruz. 19
In the light of his being positively identified as one of the hold-uppers, the appellant's defense of alibi, which
the trial court erroneously characterized as denial, 20 must necessarily fail. Deeply rooted in our criminal
jurisprudence is the rule that alibi is the weakest of all defenses for it is easy to fabricate and difficult to
disprove; 21 it cannot prevail over the positive identification of the accused by the witnesses. 22 Moreover, for
that defense to prosper, it in not sufficient that the accused prove that he was somewhere else when the
crime was committed; he must also show that it was physically impossible for him to have been at the scene
of the crime at the time the crime was committed. 23 That physical impossibility was not present in this case.
Appellant admitted in open court that he was in his house a mere sixty (60) meters from the scene of the
incident at the time the crime was committed. 24 Given such proximity, it was not only possible but also
quite probable for him to have been at the crime scene at the time of the crime's commission.
We also agree with the trial court that the crime committed by the appellant and his confederates, whose
identities remain unknown, is robbery with homicide (robo con homicidio) defined and penalized under Article
294(l) of the Revised Penal Code which reads:
Art. 294. Robbery with violence against or intimidation of persons Penalties. Any person
guilty of robbery with the use of violence against or intimidation of any person shall suffer:
1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery,
the crime of homicide shall have been committed.
xxx xxx xxx
To sustain a conviction for robbery with homicide, it is necessary that the robbery itself be proven as
conclusively as any essential element of a crime. 25

There is not the slightest doubt in Our minds that the appellant and his unidentified cohorts employed
violence against and intimidation of persons to consummate their criminal intent to take away, for personal
gain, the personal property of the passengers of the jeepney. One of them used a bladed weapon to stab to
death one of the victims, Venancio Estacio. The others also used bladed weapons and a firearm to intimidate
and threaten the other passengers into turning over their personal property. One of the victims, Abel Requejo,
was divested of a Seiko gold watch worth P800.00, cash of P200.00 and other valuables and important papers.
Conspiracy among the perpetrators was duly proven. Pretending to be passengers, they boarded the jeepney
at the same time near the foot of the Lambingan Bridge. When the hold-up was announced, each moved with
precision in pursuit of an assigned task obviously earlier agreed upon. One poked his gun at the head of the
driver while the rest pointed their knives at the passengers. At the same time, they divested the said
passengers of their valuables. They all alighted from the jeepney at the same time with the loot. These acts,
taken together, are sufficient to establish the existence of a common design among the appellant and his
companions to commit the offense charged. Otherwise stated, such acts showed nothing less than a joint
purpose, and design, and a concerted action and community of interest; these establish beyond reasonable
doubt the existence of conspiracy.26 Direct proof is not essential to prove conspiracy; 27 it may be shown by
acts and circumstances from which may logically be inferred the existence of a common design, 28 or may be
deduced from the mode and manner in which the offense was perpetrated. 29
That a homicide was committed on the occasion of the robbery is equally beyond dispute. Venancio Estacio
was stabbed twice in his chest at the time he was divested of his personal property. He was pronounced dead
on arrival upon reaching the hospital. For robbery with homicide to exist, it is enough that a homicide would
result by reason or on the occasion of the robbery. 30 The rule is likewise settled that when homicide takes
place as a consequence or on the occasion of a robbery, all those who took part in the robbery are guilty as
principals of the crime of robbery with homicide unless proof is presented that the accused tried to prevent
the killing. 31 There is no showing that the appellant tried to prevent the stabbing of Venancio.
Appellant then is liable for the crime of robbery with homicide under Article 294(l) of the Revised Penal Code.
The crime was committed with the aggravating circumstances of band 32 and craft. 33 While the first is not
specifically alleged in the information, it was proven without objection on
the part of the defense. Hence, it can be properly appreciated against the appellant. 34
An offense shall be deemed to have been committed by a band whenever more than three (3) armed
malefactors shall have acted together in the commission thereof. 35 In the instant case, it was duly proven that
there were five (5) armed malefactors. It should be emphasized here that the circumstance of band is inherent
in brigandage and in robbery in band; if, however, the information does not charge these offenses, as in this
case, then such circumstance can only be appreciated as a generic aggravating circumstance. 36
Craft is present because the appellant and his co-conspirators pretended to be bona fide passengers of the
jeepney so as not to arouse any suspicion as regards their criminal scheme to commit the robbery. 37
The penalty for robbery with homicide is composed of two (2) indivisible penalties, namely reclusion
perpetua to death. Taking into account the two (2) generic aggravating circumstances of band and craft, and
pursuant to the rule laid down in the second paragraph, Article 63 of the Revised Penal Code, the greater
penalty death should be imposed. In view, however, of Section 19(l), Article III of the 1987 Constitution
which prohibits the imposition of the death penalty, and in view of the rule laid down in People vs.
Muoz, 38 the appropriate imposable penalty should be reclusion perpetua.

The trial court erroneously imposed the penalty of life imprisonment. This Court has ruled time and again that
the penalty of reclusion perpetua is not synonymous with life imprisonment for the reason that the latter does
not carry with it accessory penalties and does not have a definite duration. Furthermore, it is not the penalty
provided by law for the crime of robbery with homicide. 39 It is extremely exasperating to find some judges still
unable to heed Our pronouncement on this matter.
Finally, since every person criminally liable for a felony is also civilly liable, 40 the trial court should also have
made a disposition on the appellant's civil liability to Abel Requejo, the passenger who was divested of his
watch and cash.
IN VIEW OF ALL THE FOREGOING, the appealed decision of the Regional Trial Court in Criminal Case No. 8867914 is hereby AFFIRMED subject to the following modifications: (a) the penalty should be reclusion
perpetua, instead of life imprisonment, (b) consistent with the current policy of this Court, the indemnity
should be increased from P30.000.00 to P50,000.00 and (c) the appellant is hereby ordered to return to Abel
Requejo the Seiko gold watch if that is no longer possible, the appellant should indemnify the latter its
value in the sum of P800.00 and pay the sum of P200.00 as reimbursement for the money taken from the
said victim.
Costs against the appellant.
SO ORDERED.
Gutierrez, Jr., Bidin, Romero and Melo, JJ., concur.
# Footnotes
1 Original Records, 1; Rollo, 6.
2 Id., 10.
3 Id., 157-161; Id., 16-20.
4 Original Records, 161; Rollo, 20.
5 Original Records, 159-160; Rollo, 18-19.
6 Original Records, 160-161; Rollo, 19-20.
7 Original Records, 161; Rollo, 20.
8 Id., 162; Id., 21.
9 Id., 163.
10 Id., 1.
11 Id., 22.
12 Id., 29-41.

13 People vs. Verzo, 65 SCRA 324 [1975].

14 People vs. Garcia, 89 SCRA 440 [1979]; People vs. Bautista, 92 SCRA 465 [1979]; People vs.
Abejuela, 92 SCRA 503 [1979]; People vs. Pido, 200 SCRA 45 [1991].
15 People vs. Gonzaga, 77 SCRA 140 [1977]; People vs. Oate, 78 SCRA 43 [1977]; People vs.
Ramos, 167 SCRA 476 [1988]; People vs. Payumo, 187 SCRA 64 [1990]; People vs. Vocente, 188
SCRA 100 [1990].
16 TSN, 14 July 1989, 8.
17 TSN, 14 July 1989, 8.
18 TSN, 21 September 1989, 9-10; quoted on page 8 of Brief of Appellant; Rollo, 38.
19 TSN, 16 October 1989, 9.
20 Judges should be careful to distinguish between alibi and denial. While denial is necessarily
inherent in alibi, the former may be inconsistent with the latter as when the accused himself is
at the scene of the crime but denies having committed the crime.
21 People vs. Dereje, 56 SCRA 554 [1974]; People vs. Santito, 201 SCRA 87 [1991]; People vs.
Bugho, 202 SCRA 164 [1991].
22 People vs. Esmael, 37 SCRA 601 [1971]; People vs. Mercado, 38 SCRA 168 [1971]; People vs.
Genoquin, 56 SCRA 181 [1974]; People vs. Cardeas, 56 SCRA 631 [1974]; People vs. Gonzaga,
77 SCRA 140 [1977]; People vs. Barba, 203 SCRA 436 [1991].
23 People vs. Brioso, 37 SCRA 336 [1971]; People vs. Tamani, 55 SCRA 153 [1974]; People vs.
Diaz, 55 SCRA 178 [1974]; People vs. Dueo, 90 SCRA 23 [1979]; People vs. Mercado, 97 SCRA
232 [1980].
24 TSN, 13 February 1990, 15; 17-18.
25 People vs. Pacala, 58 SCRA 370 [1974].
26 People vs. Lunar, 45 SCRA 119 [1972]; People vs. Custodio, 47 SCRA 289 [1972].
27 People vs. Cabiling, 74 SCRA 285 [1976]; People vs. Cercano, 87 SCRA 1 [1978].
28 People vs. Tingson, 47 SCRA 243 [1972].
29 People vs. Alonzo, 73 SCRA 484 [1976].
30 People vs. Saliling, 69 SCRA 427 [1976].
31 People vs. Garillo, 84 SCRA 537 [1978]; People vs. Bernales, 94 SCRA 604 [1979].
32 Article 14(6), Revised Penal Code.

33 Article 14(14), Id.

34 People vs. Tabion, 93 SCRA 566 [1979].
35 Article 14(6), Revised Penal Code, op. cit.
36 AQUINO, R.C., The Revised Penal Code, vol. I, 1987 ed., 341, citing U.S. vs. De Torres, 5 Phil.
501 [1906]; U.S. vs. Sol, 9 Phil. 265 [1907]; People vs. Sawajan, 53 Phil. 689 [1927].
37 People vs. Daos, 60 Phil. 143 [1934]; People vs. Vallente, 144 SCRA 495 [1986]; People vs.
Lee, 204 SCRA 900 [1991].
38 170 SCRA 107 [1989]; see also People vs. Lee, supra.
39 See People vs. Mobe, 81 Phil. 58 [1948]; People vs. Abletes, 58 SCRA 241 [1974]; People vs.
Gonzales, 58 SCRA 266 [1974]; People vs. Pilones, 84 SCRA 167 [1978]; People vs. Sumadic, 113
SCRA 689 [1982]; People vs. Baguio, 196 SCRA 459 [1991]; People vs. Ramos, 203 SCRA 237
[1991]; People vs. Penillos, 205 SCRA 546 [1992].
40 Article 100, Revised Penal Code.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 149368

April 14, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
FRANCISCO DACILLO alias DODOY AND JOSELITO PACOT y IBARRA (case provisionally dismissed),accused,
FRANCISCO DACILLO alias DODOY, appellant.
DECISION
CORONA, J.:
Before us on automatic review is the decision1 of the Regional Trial Court of Davao City, Branch 31, in Criminal
Case No. 45,283-2000 convicting appellant Francisco Dacillo y Timtim alias Dodoy of the crime of murder and
sentencing him to suffer the penalty of death.
Appellant Dacillo together with Joselito Pacot y Ibarra were indicted for murder in an information that read:

The undersigned accuses the above-named accused of the crime of Murder, under Art. 248 of the
Revised Penal Code, as amended by R.A. 7659, committed as follows:
That on or about February 6, 2000, in the City of Davao, Philippines, and within the jurisdiction
of this Honorable Court, the above-mentioned accused, conspiring, confederating together and
helping one another, with treachery and evident premeditation, and with intent to kill, willfully,
unlawfully and feloniously attacked, assaulted and stabbed one Rosemarie B. Tallada with a
bladed weapon, thereby inflicting upon the latter mortal wounds which caused her death.
That the commission of the foregoing offense was attended by the aggravating circumstance of abuse
of superior strength.
CONTRARY TO LAW.2
The case against appellants co-accused, Joselito Pacot, was provisionally dismissed for lack of sufficient
evidence to identify him with certainty.
Appellant was arraigned on February 21, 2001 and, assisted by counsel, pleaded not guilty. Pre-trial was
conducted on March 1, 2001 and trial ensued thereafter.
To establish appellants guilt, the prosecution presented the following witnesses: Charlita Tallada, the victims
mother; Patricia Turlao, the victims aunt; appellant Dacillos neighbors, Jovelyn Dagmil, Augusto Cesar Arara,
Roche Abregon, Resna Abregon, Allan Castanares, Jupiter Campaner; police officers SPO2 Rodolfo Taburda
and SPO1 Avelino Alcobus, and medico-legal officer Dr. Danilo P. Ledesma.
The facts, as established by the prosecution witnesses collective testimonies, follow.
The victim, seventeen-year-old Rosemarie B. Tallada, was last seen alive at dusk on February 6, 2000,
on the bridge near appellants house at Purok No. 3, New Society Village, Ilang, Davao City.
Around 7:45 p.m. that evening, witness Jovelyn Dagmil, who was living with her aunt in the house
adjacent to appellants, was looking for her cousin when she saw the victim Rosemarie on the bridge.
Because it was drizzling, she invited Rosemarie inside their house but the latter declined and told her
she was waiting for someone.3
After a while, Jovelyn heard a man inside appellants house calling "Psst, psst . . ." Thinking the call was meant
for her, she turned but instead saw Rosemarie walking towards and entering appellants house.4
Not long after Rosemarie went inside the house, a struggle was heard therein. Witnesses Roche and Resna
Abregon, who were in the adjacent house singing with a karaoke machine, suddenly felt the floor shaking as if
a scuffle was going on at the other side of the wall. The houses were built on stilts above the seashore,
adjoining one another with mere wooden partitions in between. Roche Abregon peeped through a hole on the
wall and saw appellant and another man grappling with a woman who was gagged with a
handkerchief.5 When Roche saw appellant choking the woman, she informed her aunt about the commotion
in appellants house but the aunt brushed it aside as a simple family quarrel. 6 For a while they heard the sound
of a woman being beaten up. Then everything became quiet. Later that evening, they saw appellant leaving
his house.7

The following day, February 7, 2000, at around 8:00 a.m., appellant was seen entering his house carrying
lumber and screen.8 He was observed going in and out of his house several times, each time carefully locking
the gate as he left.9 At around 9:00 a.m., appellant was seen with ready-mixed cement in a plastic pail and,
when asked what he was going to do with the cement, replied that it was for the sink he was constructing.10
Later, appellant entrusted a bag of womans personal belongings to barangay tanod Allan Castaares and told
the latter that it belonged to his woman companion. He allegedly could not bring it home because his wife
might see them.11
By February 11, 2000, neighbors started smelling the rotten odor of Rosemaries already decomposing body. 12
At 5:00 p.m. the same day, witnesses Roche, Resna, and Rachel were gathering seashells under appellants
house when they saw droplets of blood and pus dripping from appellants comfort room. They immediately
reported it to their aunt who in turn instructed her husband to get a stick and poke the sacks covering the
comfort room. However, the husband instead climbed up the house and was greeted by the stink emanating
from the corner where he saw a tomb-like structure. They immediately reported the matter
to barangay officials who called the police.13
At about 10:00 p.m., policemen arrived at appellants house, accompanied by his wife, and forcibly opened
the lock. They proceeded to where the tomb was located.
When cracked open, the tomb revealed the decomposing body of a woman.14
The corpse was brought to the Rivera Funeral Parlor where it was identified by the victims mother Charlita
Tallada and aunt Patricia Turlao as that of Rosemarie, through the keloid scar on her forearm.
Dr. Danilo Ledesma conducted an autopsy on Rosemaries remains. His necropsy report revealed that
Rosemarie died from a stab wound in the abdomen. The report further disclosed that she suffered contusions
in the anterior chest wall and her right hand; an incised wound on her left middle finger; a stab wound on the
left side of the face and fractures on the 2nd, 3rd, 4th, 5th, 6th and 7th ribs on her side.15
Dr. Ledesma testified that the wounds suffered by Rosemarie indicated that she put up a struggle and the
wounds were inflicted before her death.16
In his defense, appellant admitted complicity in the crime but minimized his participation. Appellant alleged
that he only held down Rosemaries legs to prevent her from struggling and, after the latter was killed by
another man he identified as Joselito Pacot, he encased the corpse in cement.
He claimed that Pacot, a co-worker at Davao Union Cement Corporation (DUCC), was looking for a house
where he and his girlfriend Rosemarie could spend the night. He offered his brothers house which was under
his care. In the evening of February 6, 2000, he and Joselito Pacot brought Rosemarie to the house at Purok
No. 3, New Society Village, Ilang, Davao City.
After accompanying the couple there, he went home to take supper. Later that evening, he returned to the
house with the bottle of Sprite Pacot had ordered. When he arrived, Pacot and Rosemarie were already
grappling with each other and Pacot was strangling the girl. He told Pacot to stop but instead of heeding him,
the latter ordered him to close the door. Pacot told appellant that he was going to be implicated just the same
so he closed the door as ordered and helped Pacot "(hold) the feet of the woman" as "her feet kept hitting the
walls."17

The two men stopped only when Rosemarie was already motionless. Pacot wanted to dump the body into the
sea but appellant told him it was low tide. Appellant then suggested that they entomb the body in cement for
which Pacot gave appellant P500.
Pacot left the house at dawn the following day, February 7, 2000. At past 10:00 a.m., appellant brought the
concrete mixture and cast the dead body in cement. After finishing the job in the afternoon of that day,
appellant reported for work at DUCC.
When the body was discovered in the evening of February 11, 2000, appellant immediately left for Cebu City,
arriving there the next day, February 12, 2000. He stayed in Cebu City until his arrest the following year.
On May 31, 2001, the trial court rendered judgment finding appellant guilty of murder and imposed upon him
the supreme penalty of death:
WHEREFORE, this Court finds the accused Francisco Dacillo GUILTY beyond reasonable doubt of the
crime of MURDER for the death of Rosemarie Tallada, as defined and penalized under Art. 248 of the
Revised Penal Code, as amended. Considering the aggravating circumstance of recidivism with no
mitigating circumstance to offset the same, he is hereby sentenced to the extreme penalty of DEATH,
He is further ordered to indemnify the heirs of the offended party in the amount of P50,000.00, plus
the sum of P50,000.00 as moral damages, and the sum of P50,000.00 as exemplary damages.
His immediate confinement to the national penitentiary is hereby ordered.
Costs de oficio.
SO ORDERED.18
Thus, this automatic review.
In his brief, appellant raises the following errors allegedly committed by the trial court:
I
THE COURT A QUO GRAVELY ERRED IN FINDING THE APPELLANT GUILTY BEYOND REASONABLE DOUBT
OF THE CRIME OF MURDER.
II
THE COURT A QUO GRAVELY ERRED IN AWARDING THE HEIRS OF THE OFFENDED PARTY THE AMOUNT
OF PHP50,000.00, WHICH APPEARS AS PAYMENT FOR ACTUAL DAMAGES.19
Appellant admitted that he had a hand in the killing of Rosemarie but attempted to downgrade his
participation in the crime by claiming he only held Rosemaries legs as Pacot was strangulating her. The rule is
that any admission made by a party in the course of the proceedings in the same case does not require proof
to hold him liable therefor. Such admission may be contradicted only by showing that it was made through
palpable mistake or no such admission was in fact made. There was never any such disclaimer by appellant.

Moreover, despite appellants self-serving, exculpatory statement limiting his involvement in the crime, all
circumstances pointed to his guilt. His declaration faltered in the face of the testimonies of eyewitnesses
positively identifying him as one of the two men who were with Rosemarie when she was killed. Witness
Roche Abregon pointed to appellant as the one who strangled Rosemarie. He was established to be inside the
house at the time the witnesses heard a woman being battered. Thus, assuming for the sake of argument that
Pacot was the mastermind, appellants admission that he participated in its commission by holding
Rosemaries legs made him a principal by direct participation.
Two or more persons taking part in the commission of a crime are considered principals by direct participation
if the following requisites are present:
1. they participated in the criminal resolution and
2. they carried out their plan and personally took part in its execution by acts which directly tended to
the same end.20
Both requisites were met in this case. Two or more persons are said to have participated in the criminal
resolution when they were in conspiracy at the time of the commission of the crime. To establish conspiracy, it
is not essential that there be proof of the previous agreement and decision to commit the crime, it being
sufficient that the malefactors acted in concert pursuant to the same objective. 21
The prosecution was able to prove appellants participation in the criminal resolve by his own admission that,
right after he was told by Pacot to close the door, he held down Rosemaries legs. He was pinpointed as the
one who throttled the victim. He admitted that they only stopped when they were sure that Rosemarie was
already dead. The two men planned how to dispose of the victims body; it was in fact appellants idea to pour
concrete on the body, prevailing over Pacots suggestion to just dump the body into the sea. It was appellant
himself who encased the body in cement and made sure that there were no leaks from which foul odor could
emanate. He was a conspirator in the killing and, whether or not he himself did the strangling or the stabbing,
he was also liable for the acts of the other accused.
It is well-settled that a person may be convicted for the criminal act of another where, between them, there is
conspiracy or unity of purpose and intention in the commission of the crime charged. 22 Conspiracy need not
be proved by direct evidence of prior agreement on the commission of the crime as the same can be inferred
from the conduct of the accused before, during, and after the commission of the crime showing that they
acted in unison with each other pursuant to a common purpose or design. 23
We are convinced beyond doubt of the joint and concerted effort between appellant and the man he
identified as Pacot in the killing of Rosemarie.
Appellant likewise contends that the trial court erred in ruling that the presence of the aggravating
circumstance of abuse of superior strength qualified the killing to murder. He contends that the qualifying
circumstance of abuse of superior strength was not specifically alleged in the information. Nothing can be
farther from the truth. A cursory reading of the information reveals that appellant was sufficiently informed of
the charges against him, including the use of superior strength in killing the hapless and defenseless female
victim.
The aggravating circumstance of abuse of superior strength necessitates a showing of the relative disparity in
the physical characteristics of the aggressor and the victim such as age, gender, physical size and strength. We
agree with the trial court that the killing of Rosemarie was committed with abuse of superior strength. As

found by the court a quo, two grown-up men against a young fragile woman whose ability to defend herself
had been effectively restrained revealed a shocking inequality of physical strength. The victim was much
weaker in constitution and could not have possibly defended herself from her stronger assailants. 24 Such
disparity was manifest in the contusions in the chest and hands, wounds on the fingers, a stab wound on the
left side of the face and multiple fractures in the ribs of the victim. 25 The abuse of superior strength was
obvious in the way Rosemarie was mercilessly beaten to a pulp.
The killing of Rosemarie was thus correctly qualified to murder by the abuse of superior strength, a
circumstance specifically pleaded in the information and proved beyond reasonable doubt.
The Court, however, finds that the trial court erred in imposing the death penalty on the ground that appellant
admitted during re-cross examination that he had a prior conviction for the death of his former live-in partner.
The fact that appellant was a recidivist was appreciated by the trial court as a generic aggravating
circumstance which increased the imposable penalty from reclusion perpetua to death.
In order to appreciate recidivism as an aggravating circumstance, it is necessary to allege it in the information
and to attach certified true copies of the sentences previously meted out to the accused.26 This is in accord
with Rule 110, Section 8 of the Revised Rules of Criminal Procedure which states:
SEC. 8. Designation of the offense. - The complaint or information shall state the designation of the
offense given by the statute, aver the acts or omissions constituting the offense, and specify its
qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be
made to the section or subsection of the statute punishing it. (Emphasis supplied)
The aggravating circumstance of recidivism was not alleged in the information and therefore cannot be
appreciated against appellant. Hence the imposable penalty should be reduced to reclusion perpetua.
Regarding the award of P50,000 as civil indemnity to the heirs of the victim, appellant claims that said amount
was awarded by the trial court as payment for actual damages. This claim is misleading. As aptly pointed out
by the Solicitor General, the amount was granted by the trial court by way of indemnity ex delicto to
compensate for the death of the victim which prevailing jurisprudence fixes at P50,000.27 The award of such
indemnity requires no proof other than the death of the victim and the accuseds responsibility therefor. 28
The award of P50,000 as moral damages is proper, supported as it was by the testimony of Charlita Tallada,
the victims mother, that Rosemaries death caused her immeasurable pain.29
In addition, the Court awards P25,000 in temperate damages, said amount being awarded in homicide or
murder cases when no evidence of burial and funeral expenses is presented in the trial court. 30
With regard to the award of exemplary damages, the Civil Code of the Philippines provides:
ART. 2229. Exemplary or corrective damages are imposed, by way of example of correction for the
public good, in addition to the moral, temperate, liquidated or compensatory damages.
ART. 2230. In criminal offenses, exemplary damages as a part of the civil liability may be imposed when
the crime was committed with one or more aggravating circumstances. Such damages are separate
and distinct from fines and shall be paid to the offended party.
In People vs. Catubig,31 we explained that:

The term "aggravating circumstances" used by the Civil Code, the law not having specified otherwise, is
to be understood in its broad or generic sense. The commission of an offense has a two-pronged
effect, one on the public as it breaches the social order and the other upon the private victim as it
causes personal sufferings, each of which is addressed by, respectively, the prescription of heavier
punishment for the accused and by an award of additional damages to the victim. The increase of the
penalty or a shift to a graver felony underscores the exacerbation of the offense by the attendance of
aggravating circumstances, whether ordinary or qualifying, in its commission. Unlike the criminal
liability which is basically a State concern, the award of damages, however, is likewise, if not primarily,
intended for the offended party who suffers thereby. It would make little sense for an award of
exemplary damages to be due the private offended party when the aggravating circumstance is
ordinary but to be withheld when it is qualifying. Withal, the ordinary or qualifying nature of an
aggravating circumstance is a distinction that should only be of consequence to the criminal, rather
than to the civil, liability of the offender. In fine, relative to the civil aspect of the case, an aggravating
circumstance, whether ordinary or qualifying, should entitle the offended party to an award of
exemplary damages within the unbridled meaning of Article 2230 of the Civil Code.
Thus, the award of exemplary damages is warranted under Art. 2230 of the Civil Code in view of the presence
of the aggravating circumstance of abuse of superior strength. Imposition of exemplary damages is also
justified under Art. 2229 of the Civil Code in order to set an example for the public good. 32 For this purpose,
we believe that the amount of P25,000 may be appropriately awarded.
WHEREFORE, the assailed judgment in Criminal Case No. 45,283-2000 of the Regional Trial Court of Davao
City, Branch 31, is hereby AFFIRMED with MODIFICATION. Appellant Francisco Dacillo y Timtim alias Dodoy is
declared guilty beyond reasonable doubt of murder as defined and penalized under Article 248 of the Revised
Penal Code. There being neither aggravating nor mitigating circumstances, appellant is hereby sentenced
toreclusion perpetua and is further ordered to indemnify the heirs of Rosemarie Tallada the sum of P50,000 as
civil indemnity, P50,000 as moral damages, P25,000 as temperate damages and P25,000 as exemplary
damages.
Costs de oficio.
SO ORDERED.
Davide, Jr., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, AustriaMartinez, Morales, Callejo, Sr., Azcuna, and Tinga JJ., concur.

Footnotes
1

Penned by Judge Wenceslao E. Ibabao.

Rollo, p. 30.

TSN, March 12, 2001 pp. 32-34.

Ibid., p. 36.

TSN, March 15, 2001, pp. 98-99.

Ibid., p. 101.

TSN, April 2, 2001, pp. 134-137.

TSN, March 12, 2001, p. 40.

Ibid., pp. 40-43.

10

TSN, April 2, 2001, pp. 215-217.

11

TSN, April 25, 2001, p. 244.

12

Ibid., pp. 17-18.

13

TSN, April 2, 2001, pp. 138-141.

14

Exhibits "B," "C" and "D," TSN, April 2, 2001, pp. 168-171.

15

Exhibit "J," Folder of exhibits, p.10.

16

TSN, April 2, 2001, pp. 194-197, 203.

17

TSN, May 2, 2001, pp. 280-283.

18

Rollo, pp. 161-162.

19

Rollo, pp. 15, 19.

20

Reyes, The Revised Penal Code Annotated, 15th ed. 2001, citing People vs. Ong Chiat Lay, 60 Phil.
788, 790 [1934]; People vs. Tamayo, 44 Phil. 38, 45-46 [1922].
21

People vs. San Luis, 86 Phil. 485, 497 [1950]; People vs. Carpio, 191 SCRA 108, 118 [1990]; People vs.
Cruz, Jr., 191 SCRA 127, 135 [1990]; People vs. Sazon, 189 SCRA 700, 713 [1990].
22

People vs. Talla, 181 SCRA 133, 148 [1990].

23

People vs. Pablo, 349 SCRA 79 [2001].

24

People vs. Asis, 286 SCRA 64 [1998].

25

Exhibit "J," Folder of exhibits, p.10.

26

People vs. Martinada, 194 SCRA 36, 45 [1991].

27

People vs. Callet, 382 SCRA 43 [2002].

28

People vs. Cayago, 312 SCRA 623 [1999].

29

TSN, March 5, 2001, p. 12.

30

People vs. Abrazaldo, 397 SCRA 137 [2003].

31

363 SCRA 621, 625 [2001].

32

People vs. Padlan, 290 SCRA 388, 406 [1998]; See also People vs. Nicolas, 400 SCRA 217, 228 [2003]
citing People vs. Catubig, 363 SCRA 621, 635 [2001].

THIRD DIVISION

[G.R. No. 102367. October 25, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ABUNDIO ALBARIDO and BENEDICTO IGDOY, accusedappellants.
DECISION
SANDOVAL-GUTIERREZ, J.:
Before us is the appeal from the decision[1] of the Regional Trial Court, Branch 12, Ormoc City, in Criminal
Case No. 3138-0, People of the Philippines vs. Abundio Albarido and Benedicto Igdoy finding them guilty
beyond reasonable doubt of multiple murder.
The information against the accused reads:
That on or about the 15th day of June, 1987, in the Municipality of Kananga, Province of Leyte, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating with
one another, with treachery and evident premeditation, with intent to kill, and of nighttime and abuse of
superior strength, did, then and there willfully, unlawfully and feloniously attack, assault, stab, hack, shot and
wound CELSO LARBO, DANILO PALACIO and LAURO PALACIO, with the use of guns and bolos, which the
accused had provided themselves for the purpose, thereby inflicting various gunshot, stabbing and hacking
wounds on the different parts of the victims bodies (please see attached medical certificates), which caused
their death.
CONTRARY TO LAW.
Only accused Abundio Albarido and Benedicto Igdoy, now appellants, were apprehended. When
arraigned, they entered a plea of not guilty.
The version of the prosecution, as narrated by the Solicitor General in the appellees brief, [2] is as follows:
At about 7:00 p.m. on June 15, 1987, a group of men composed of Celso Larbo, Danilo Palacio, and Lauro
Palacio, together with Maximo Pea, Melchor Palacio and Jose Palacio, were walking single file on a trail

measuring about fifteen (15) inches wide in Sitio Bislog, Barangay Sto. Domingo, Kananga, Leyte (tsn, pp. 7, 8,
10, 34, Pea, October 17, 1988; tsn, pp. 8, 9, Jose Palacio, June 13, 1989; tsn, pp. 7-9, Melchor Palacio, June
15, 1989).
Without warning, all of them were waylaid by another group composed of Aquilino Canaway, Elias Merced
and appellants (tsn, pp. 9, 10, Pena, October 17, 1988). They were recognized by Maximo Pea and Jose
Palacio because Lauro Palacio was able to focus the flashlight he was then holding on the faces of appellants
(tsn, pp. 10, 30, Pea, October 17, 1988; tsn, p. 13, Jose Palacio, June 13, 1989; tsn, p. 11, Melchor Palacio,
June 15, 1989).
Guns were fired. Among those hit in the first volley were Celso Larbo (tsn, p. 35, Pea, October 17, 1988; tsn,
p.12, Jose Palacio, June 13, 1989; tsn, p. 9, Melchor Palacio, June 15, 1989). The other men scampered for
safety in the tall grasses nearby (tsn, p. 11, Pea, October 17, 1988; tsn, p. 10, Jose Palacio, June 13,
1989). After the shooting, appellants approached Celso Larbo and mercilessly hacked him with bolos many
times (tsn, p. 11, Pea, October 17, 1988).
Danilo Palacio and Lauro Palacio were likewise attacked by appellants who mercilessly hacked and stabbed
them (tsn, p. 11, Pea, October 17, 1988; tsn, pp. 12, 13, 15, Jose Palacio, June 13, 1989). Appellants
companions, Aquilino Canaway and Elias Merced, on the other hand, acted as guards to head off any attempt
by anyone minded to come to the aid of the victims (tsn, p. 12, Pea, October 17, 1988).
All the injured victims subsequently died (tsn, pp. 16, 17, Melchor Palacio, June 15, 1989; tsn, pp. 7, 25, 26, 30,
Cam, June 3, 1988).
Dr. Roland Cam, resident physician of the Ormoc District Hospital, testified that he conducted a postmortem examination on the bodies of Celso Larbo, Danilo Palacio and Lauro Palacio. The examination
disclosed that Celso Larbo sustained gunshot and hacking wounds, probably caused by a sharp instrument,
causing his death. Danilo and Lauro Palacio suffered from multiple stab and hacking wounds, possibly
caused by a sharp instrument, which also caused their death.[3]
In his defense, Benedicto Igdoy claimed that at the time the incident took place, he was at Hibucawon,
Jaro, Leyte where he resides with his family. He insisted that he has never been to Barangay Sto. Domingo,
Kananga, Leyte, the place where the crime took place, and that he only goes to the Municipality of Kananga
twice a year to visit his parents-in-law in Lonoy. He does not know the victims, or Maximo Pea and Jose
Palacio who both testified against him.[4]
For his part, Abundio Albarido likewise denied the crime imputed against him. He testified that he was at
his house approximately three (3) kilometers away from the scene of the crime at the time it
happened. When presented with his affidavit where he stated that he was with Benedicto Igdoy on June 15,
1987, he refuted the same, saying he was only forced to sign it because Romy Tauy, a policeman, threatened
to kill him if he refuse to do so.[5]
After trial, the lower court rendered judgment finding Abundio Albarido and Benedicto Igdoy guilty
beyond reasonable doubt of three (3) counts of murder, thus:
WHEREFORE, decision is hereby rendered finding both accused ABUNDIO ALBARIDO and BENEDICTO IGDOY
guilty beyond reasonable doubt as principals of three counts of murder defined and penalized under Art. 248
of the Revised Penal Code. Appreciating the aggravating circumstance of nighttime with no mitigating
circumstance to offset the same, the proper penalty imposable is three death penalties for each accused. For
reason, however, that the present constitution prohibits the imposition of the death penalty, this Court,

accordingly sentences both accused ABUNDIO ALBARIDO and BENEDICTO IGDOY to suffer an imprisonment of
RECLUSION PERPETUA for the death of Celso Larbo; another RECLUSION PERPETUA for the death of Danilo
Palacio; another RECLUSION PERPETUA for the death of Lauro Palacio. Further, accused ABUNDIO ALBARIDO
is ordered to indemnify the heirs of Celso Larbo the sum of FIFTY THOUSAND PESOS (P 50,000.00); the heirs of
Danilo and Lauro Palacio the sum of FIFTY THOUSAND PESOS (P 50,000.00) for the death of Danilo Palacio and
another sum of FIFTY THOUSAND PESOS (P 50,000.00) for the death of Lauro Palacio. Also, BENEDICTO IGDOY
is ordered to indemnify the heirs of Celso Larbo the sum of FIFTY THOUSAND PESOS (P 50,000.00); the heirs of
Danilo and Lauro Palacio the sum of FIFTY THOUSAND PESOS (P 50,000.00) for the death of Danilo Palacio and
another sum of FIFTY THOUSAND PESOS (P 50,000.00) for the death of Lauro Palacio. And finally, both
accused are ordered to pay the costs.
SO ORDERED.[6]
In the instant appeal, Albarido and Igdoy ascribe to the trial court the following errors:
I
THE TRIAL COURT ERRED IN GIVING FULL FAITH AND CREDIT TO THE TESTIMONIES OF TWO
ALLEGED EYEWITNESSES TO THE MULTIPLE MURDER DESPITE THE FACT THAT SAID TESTIMONIES
(A) ARE RIDDLED WITH INCONSISTENCIES, CONTRADICTIONS AND IMPROBABILITIES AND (B) WERE
NOT CORROBORATED BY ANOTHER ALLEGED EYEWITNESS.
II
THE TRIAL COURT ERRED IN ENGAGING IN CONJECTURE AND/OR SPECULATION REGARDING THE
TESTIMONY OF PROSECUTION WITNESS MELCHOR PALACIO.
III
THE TRIAL COURT ERRED IN BASING ITS JUDGMENT OF CONVICTION ON THE TESTIMONIES OF
TWO WITNESSES WHICH ARE FLAWED WITH INCONSISTENCIES, CONTRADICTIONS AND
IMPROBABILITIES AND HENCE, DO NOT CONSTITUTE PROOF OF GUILT BEYOND REASONABLE
DOUBT.[7]
Appellants, in seeking the reversal of the challenged decision, rely principally on the inconsistencies in the
testimonies and affidavits of the prosecution witnesses.
The appeal has no merit.
Appellants contend that the testimonies of Maximo Pea and Jose Palacio on material details of the
incident conflict with their allegations in their affidavits executed before the trial. For instance, while Pea
stated in his affidavit that only Elias Merced was holding a revolver, however, during the hearing, he testified
that all the four (4) accused were armed, three with handguns and one with a long gun. Pea likewise stated
in his affidavit that after the first gunshot, victim Lauro Palacio focused his flashlight on the four accused. But
during the trial, Pea declared that Lauro Palacio had focused the flashlight on the accused prior to the first
gunshot.
For his part, Jose Palacio testified that appellant Abundio Albarido and Elias Merced were armed with
guns, while appellant Benedicto Igdoy and Aquilino Canaway were carrying bolos. However, in his sworn
statement, he stated that Merced was carrying a gun and the other three (3) accused had bolos. Also, Palacios
statement in his affidavit that it was Merced who fired at him and his companions is inconsistent with his
testimony that he did not know who fired the shots.

Appellants likewise argue that the testimonies of the three (3) prosecution witnesses are inconsistent
with each other. Peas account that all the four accused had guns is contradicted by Jose Palacios testimony
that only two accused were carrying guns, while the other two had bolos. Likewise, Pea testified that
appellant Albarido fired the first gunshot, but Palacio declared it was Merced who first fired his gun. Lastly,
Peas version that before the first gunshot, Lauro Palacios flashlight was already focused on the four accused
is contradicted by Palacios testimony that he did not see any person before they heard any gunshot.
Concerning the discrepancies between the affidavits and testimonies of the prosecution witnesses, suffice
it to say that time and again, this Court has held that when there is an inconsistency between the affidavit and
the testimony of a witness in court, the testimony commands greater weight.[8] For, oftentimes, affidavits
taken ex parte, are considered inaccurate as they are prepared by other persons who use their own language
in writing the affiants statements.[9] Omissions and misunderstandings by the writer are not infrequent,
particularly under circumstances of haste or impatience.[10] Thus, more often than not, affidavits do not reflect
precisely what the declarant wants to impart.[11]
A careful scrutiny of the inconsistencies relied upon by the appellants shows that they refer only
to minor details in the commission of the crime and do not affect at all the credibility of the prosecution
witnesses. It is elementary in the rule of evidence that inconsistencies in the testimonies of prosecution
witnesses with respect to minor details and collateral matters do not affect the substance of their declaration
nor the veracity or weight of their testimony.[12] In fact, these minor inconsistencies enhance the credibility of
the witnesses, for they remove any suspicion that their testimonies were contrived or rehearsed.[13] In People
vs. Maglente,[14] this Court ruled that inconsistencies in details which are irrelevant to the elements of the
crime are not grounds for acquittal. Besides, both Pea and Palacio were consistent in identifying herein
appellants as the perpetrators of the crime and in narrating how the victims died.
Indeed, the fact that the statements of the two prosecution witnesses differ on some minor details, does
not in any way affect their credibility. This is in accord with ordinary human experience that persons who
witness an event perceive the same from their respective points of reference. Therefore, almost always, they
have different accounts of how it happened. Certainly, we cannot expect the testimony of witnesses to a
crime to be consistent in all aspects because different persons have different impressions and recollections of
the same incident.[15] What is significant is that the trial court had the opportunity to observe the demeanor of
the prosecution witnesses and found them to be telling the truth. It is axiomatic that findings of the trial court
on the credibility of witnesses are entitled to great respect and will not be disturbed on appeal, absent any
showing of palpable mistake or grave abuse of discretion which is not present in this case.[16]
Appellants assailed the prosecution evidence, stating that Melchor Palacio, the father of the two (2)
victims, failed to corroborate the testimonies of Maximo Pena and Jose Palacio. Melchor categorically
declared on the witness stand that due to the darkness of the night and the suddenness of the attack, he did
not see the assailants.
Again, appellants contention must fail. There is no hard and fast rule requiring a number of witnesses to a
crime to positively identify the perpetrators thereof. In numerous instances, the testimony of a single witness,
if positive and credible, is sufficient to convict an accused. [17] Here, there were two eyewitnesses who
positively identified the appellants as the perpetrators of the crime. Moreover, the fact that the crime took
place in a dark place does not mean that the assailants could not be identified. Both declared that they used a
flashlight in lighting their path that fateful night. Consequently, it cannot be said that the crime took place on
an entirely dark night which made it impossible for those witnesses to identify the assailants.
Lastly, appellants insist that the infirmities in the testimonies of Maximo Pena and Jose Palacio cast grave
and serious doubt on their trustworthiness. They further emphasize that no evidence was presented by the
prosecution to prove that they were ill motivated in committing the crime.

We are not persuaded. As mentioned earlier, the trial court did not err in giving full faith and credit to the
testimonies of Maximo Pena and Jose Palacio quoted below:
Testimony of Maximo Pea:
Q: Now, at about 7:00 oclock while on your way at So. Bislog, do you recall of any unusual incident that
took place?
A:

We were waylaid.

Q:

Now, what happened when you were waylaid?

A:

We were shot.

Q:

You mentioned of the pronoun we, whom are you referring to?

A:

We- I, Melchor Palacio, Jose Palacio, Danilo Palacio, Celso Larbo and Lauro Palacio.

Q:

Do you recall in what particular place in Sitio Bislog you were waylaid?

A:

At the crossing.

Q: How far is that crossing to your sitio at Baganatad, Brgy. Sto. Domingo, Kananga, Leyte?
A:

More than one-half kilometer.

Q:

Did you recognize the persons who waylaid you, while you were on your way to So. Baganatad of Sto.
Domingo?

A:

Yes, sir.

Q:

Look around the courtroom if you could see these persons?

A:

Those two, Abundio Albarido and Benedicto Igdoy (witness pointing to the two accused who when
asked gave their names as ABUNDIO ALBARIDO and BENEDICTO IGDOY, respectively).

Q:

Aside from these accused whom you have pointed to as Benedicto Indoy and Abundio Albarido, were
there other persons whom you recognized in the company of these accused, Abundio Albarido and
Benedicto Igdoy?

A:

Yes, sir, there were two others.

Q:

What are their names?

A:

Aquilino Canaway and Elias Merced.

Q:

Why do you know these people, accused Abundio Albarido, Benedicto Indoy, Aquilino Canaway and
Elias Merced?

A:

Because they were lighted by the flashlight.

Q:

Who was holding the flashlight, while you were on your way to Sitio Baganatad from So. Bislog?

A:

It was a child named Lauro.

Q:

By the way, what was your position in going to Bislog, were you walking side by side or in a single file?

A:

We were walking one after the other.

Q:

Could you recall who was ahead of the group?

A:

Lauro, Danilo, Celso, Jose Palacio, Melchor Palacio and I was the last.

Q:

Now, you said you heard a gun report. What happened after you heard a gun report?

A:

When we heard the gunshot, we immediately covered ourselves at the grasses.

Q: What transpired after that

A:

After the gunshot, Bonding and Benny approached Celso Larbo and hacked him many times.

Q:

Now, after how many gun reports did you hear, that you saw the accused go to Celso Larbo and
hacked him many times?

A:

Four gunshots.

Q:

Now, what happened to Lauro Palacio and Danilo Palacio?

A:

Danilo Palacio and Lauro Palacio were hacked. After that, they also stabbed Danilo and Lauro at their
chest..[18]

Testimony of Jose Palacio:

Q: While proceeding from Sitio Bislog to the house of Simeon Almendras on June 15, 1987 at about 7:00
oclock together with your companions, what transpired?
A:

We were shot.

Q:

How did you know you were shot?

A:

Because we heard a gun report.

Q:

Now, how many gin reports did you hear in the first instance?

A:

Only one.

Q:

What did you do when you head (sic) the first gun report?

A:

I rolled at the cogon grasses.

Q:

Why did you roll at the cogon grass after you heard the first gun report?

A:

Because I was afraid that I might be hit by the gun report.

Q:

After the first gun report did you hear any further gun report?

A:

Yes, sir, I heard another three successive gun reports.

Q:

At that instance you were hiding at the gocon (sic) grass?

A:

Yes, sir.

Q:

Now, while you were in the cogon grass what did you observe?

A:

I saw that the four (4) persons were carrying boloes (sic) and guns. (Witness pointing to the two
accused.)

Q:

Now, you were using the pronoun they who were these persons that were carrying guns and boloes
(sic)?

COURT
And all of the four were carrying guns?
A:

No, your Honor only two of them were carrying guns.

COURT
Who?
A:

Banding or Abundio Albarido and Elias Merced were carrying guns.

COURT
Proceed.
ATTY. SALAZAR
Q:

How about the other two?

A:

They were carrying boloes (sic).

Q:

Now, these two accused present in the courtroom now were the two of the persons whom you saw
on June 15?

COURT
Already answered.
ATTY. SALAZAR
Q:

What happened next after you saw these four accused armed with bolos and other with guns?

A:

Celso Larbo was hit by the gun.

Q:

What else did you observe?

A:

Danilo Palacio and Lauro Palacio were hit by the boloes (sic).

Q:

How are you related to Lauro Palacio and Danilo Palacio?

A:

My brothers.

Q:

What were the accused actually doing on the person of your two younger brothers, Danilo Palacio and
Lauro Palacio?

A:

They were hacked.

Q:

Did you see who was hacking Danilo Palacio?

A:

Yes, sir.

Q:

Who?

A:

He was hacked by Banding (Albarido) and Biri (Igdoy).

Q:

How about Lauro Palacio?

A:

Lauro Palacio was also hacked by Bonding and Biri.

Q:

From where you were situated in that cogon grasses to the place where your two younger brothers,
Danilo Palacio and Lauro Palacio were hacked, how far was that?

A:

About three arms length.

Q:

What parts of the body were your brothers hit by the hacking blows delivered by the accused?

A:

Lauro Palacio was hit on his right foot and at his right side.

Q:

And how about Danilo Palacio?

A:

He was hit on his back.

Q:

Now, considering that it was nighttime, how were you able to witness and observe the incident?

A:

Because Lauro Palacio was carrying a flashlight and he was able to light them with the flashlight before
he died.[19]

Motive becomes relevant only when there is doubt on the identity of the malefactors. [20] Hence, failure of
the prosecution to show appellants motive in committing the crime is immaterial. What is important is that
they have been positively identified as the assailants.
We are not moved by appellants uncorroborated defense of alibi. For the defense to prosper, the
requirements of time and place (or distance) must be strictly met; it is not enough to prove that the accused
was somewhere else when the crime was committed; he must also demonstrate by clear and convincing
evidence that it was physically impossible for him to have been at the scene of the crime during its
commission.[21] Appellant Igdoy himself testified that the distance between his residence at Hibucawon, Jaro,
Leyte and Kananga, Leyte, the scene of the crime, can be negotiated by public transport within two and a half
hours.[22] Appellant Albarido admitted that he was at his house during the commission of the crime, which is
only more than three (3) kilometers away from Sto. Domingo, Kananga, Leyte where it happened.[23] These
distances, as this Court has ruled in previous cases,[24] are not enough to prove that appellant could not have
been at the crime scene when it was committed. Parenthetically, appellants alibis are worthless in the face of
their positive identification by the prosecution witnesses.[25]
We find that treachery and abuse of superior strength are present here. But abuse of superior strength is
absorbed by treachery.[26] These circumstances qualified the killing to murder. The essence of treachery is
that the attack comes without a warning and in a swift, deliberate and unexpected manner, affording the
hapless, unarmed and unsuspecting victim no chance to resist or escape. [27] Celso Larbo, Danilo Palacio and
Lauro Palacio were on their way home, unaware of the danger lurking in their path, when they were suddenly
attacked by the appellants with the use of their guns and bolos. Thus, they had no opportunity to defend
themselves. In fact, Maximo Pea testified that after Celso Larbo was rendered defenseless by the first gun
shot,[28] appellants started hacking him with their bolos.[29] They also attacked Danilo and Lauro Palacio, then
only 12 and 14 years old, who were unable to protect themselves from the aggression of grown men. As to
the presence of abuse of superior strength, the same is proved by the fact that appellants and their two
companions were armed, not only with guns, but with bolos tucked at their waist. [30]
However, we disagree with the trial courts ruling that the crime was attended by the aggravating
circumstance of nighttime. There is no evidence to show that the appellants and their companions purposely
took advantage of the darkness of the night to insure the commission of the crime. It is basic that for
nighttime to be appreciated as an aggravating circumstance there must be a showing that the accused
purposely sought such time to facilitate the commission of the crime or to prevent its discovery. [31] Neither
can we rule that there was evident premeditation on the part of herein appellants because the prosecution
failed to establish the same.
The imposable penalty is reclusion perpetua under Article 248 of the Revised Penal Code considering that
no ordinary aggravating circumstance attended the commission of the crime.
We sustain the trial courts award of P 50,000.00 as civil indemnity to the heirs of each of the three (3)
victims. In line with existing jurisprudence,[32] since the qualifying aggravating circumstance of treachery was
sufficiently proven, the award of exemplary damages of P 25,000.00 each to the same heirs is likewise in
order.

WHEREFORE, the appealed decision of the trial court is hereby AFFIRMED, with MODIFICATION that each
of the appellants is ordered to pay the heirs of each victim the sum of Twenty Five Thousand Pesos (P
25,000.00) as exemplary damages.
SO ORDERED.
Melo, (Chairman), and Panganiban, JJ., concur.
Vitug, J., on official leave.

[1]

Dated July 15, 1991, penned by Judge Francisco H. Escao, Jr.

[2]

Rollo, p. 92.

[3]

TSN, June 3, 1988, pp. 14-34.

[4]

TSN, September 18, 1989, pp. 5-12.

[5]

Ibid, pp. 52-61.

[6]

Decision, pp. 11-12; Records, pp. 435-436.

[7]

Brief for Accused-Appellants, p. 4; Rollo, p. 83.

[8]

People vs. Milliam, 324 SCRA 155, 165 (2000).

[9]

Ibid.

[10]

Ibid.

[11]

Ibid.

[12]

People vs. Tahop, 315 SCRA 465 (1999); People vs. Rada, 308 SCRA 191 (1999).

[13]

People vs. Realin, 301 SCRA 495 (1999); People vs. Sanchez, 302 SCRA 21 (1999); People vs. delos Santos,
315 SCRA 579 (1999).
[14]

306 SCRA 546 (1999).

[15]

People vs. Real, 308 SCRA 244 (1999).

[16]

People vs. Lerio, 324 SCRA 76 (2000).

[17]

People vs. Javier, 122 SCRA 830; People vs. Francia, 154 SCRA 495; People vs. Martinez, 127 SCRA 260;
People vs. Aquino, 122 SCRA 797; People vs. Salazar, 58 SCRA 467; People vs. Argana, 10 SCRA 311).
[18]

TSN, October 17, 1988, pp. 8-11.

[19]

TSN, June 13, 1989, pp. 10-13.

[20]

People vs. Lopez, 312 SCRA 684; People vs. Floro, 316 SCRA 304 (1999).

[21]

People vs. Dubria, G.R. No. 138887, September 26, 2000.

[22]

TSN, September18, 1989, p. 8.

[23]

Ibid, p. 57.

[24]

People vs. Cristobal, 252 SCRA 507; 517 (1996) and People vs. Molina, 312 SCRA 130, 135 (1999).

[25]

People vs. Murillo, et al., G.R. Nos. 128851-56, February 19, 2001; Rivera vs. Court of Appeals, G.R. No.
125867, May 31, 2000.
[26]

People vs. Lapay, 298 SCRA 62 (1998).

[27]

People vs. Francisco, 333 SCRA 725, 746 (2000).

[28]

TSN, October 17, 1988, p. 34.

[29]

Ibid, p. 39.

[30]

People vs. Felix, 297 SCRA 12 (1998); TSN, October 17, 1988, p. 39.

[31]

People vs. Lumacang, 324 SCRA 254 (2000).

[32]

People vs. Catubig, G.R. No. 137842, August 23, 2001.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-18054

December 22, 1961

THE CITY OF BUTUAN, petitioner,

vs.
HON. JUDGE MONTANO A. ORTIZ and JUSTINIANO SORIANO, respondents.
LABRADOR, J.:
The amended petition in the above-entitled case seeks to annul an order of the Court of First Instance of
Agusan, Hon. Montano Ortiz, presiding, dated January 13, 1960, ordering the execution of the court's decision
in Special Civil Action No. 16 of that court, entitled "Julieto Semine and Justiniano Soriano, petitioners, versus
Zacarias Pizaro, respondent", dated August 13, 1954, rendered by Judge Francisco Arca, in which decision the
court ordered Zacarias Pizarro, respondent, to reinstate immediately as police corporal petitioner therein
Soriano.
The record discloses that on March 9, 1954, administrative charges for physical injuries and electioneering
were filed with the Municipal Board of Butuan City against Justiniano Soriano. On March 11, 1954, Soriano was
suspended by Mayor Pizarro of Butuan City. The decision of the Board dated May 9, 1954 found Soriano guilty
as charged. On the same date, appeal was brought by Soriano to the Commissioner of Civil Service.
Said Special Civil Action No. 16 was filed in the Court of First Instance of Agusan on June 1, 1954. In the
petition it is alleged that the 60-day period of suspension provided for in Republic Act No. 557 had already
elapsed and the case against Soriano had not been finally decided. So Soriano sought to compel Mayor Pizarro
to reinstate him pursuant to said Act. Decision was rendered on August 13, 1954, favorable to petitioner
Soriano, ordering Soriano reinstated pending termination of the administrative charges filed against him.

On November 27, 1954 the Commissioner of Civil Service to whom the decision of the Municipal Board had
been appealed by petitioner Soriano, affirmed the decision of the Municipal Board, finding respondent
Soriano guilty and separating him from the service. On January 12, 1960 (less than five years from the date of
the judgement) attorney for Soriano filed an ex-parte motion to execute the judgment of Judge Arca for
reinstatement. This motion was granted by the court. The court refused to reconsider said order of execution,
hence the petition in this case was presented to set aside the order of execution, on the ground that the court
committed a grave abuse of discretion in ordering the said execution of the judgment as the Commissioner of
Civil Service has already affirmed the decision of the Municipal Board finding Soriano guilty of the charges and
separating him from the service.
We find merit in the petition. When on January 12, 1960, Soriano demanded the execution of the judgment in
Special Civil Action No. 16 of the Court of First Instance of Agusan, appeal by Soriano to the Civil Service
Commissioner from the decision of the Municipal Board had long ago been decided against him by the
Commissioner of Civil Service, said decision being dated November 29, 1954. It is to be noted that the right of
action invoked by Soriano in Special Civil Action No. 16 in the Court of First Instance of Agusan was based on
the failure of the Municipal Board to decide the case within 60 days as required by Republic Act No. 557. It is
true that the judgment was correct because the suspension was ordered on March 11, 1954 and by June 1,
1954, when the petition for mandamus was filed in the Court of First Instance, more than 60 days have
already expired without the case having been decided. It is also true that the decision of the Court of First
Instance in said special civil action continued to be executory when the motion for execution was presented,
because the 5-year period within which a decision of the court may be enforced by motion had not yet
expired, but as it was alleged and shown in the motion for the reconsideration of the order granting execution,
that the Commissioner of Civil Service had already affirmed the decision of the Municipal Board finding
Soriano guilty on November 29, 1954, the right to reinstatement was barred by the decision of the
Commissioner of Civil Service. This decision of the Civil Service Commissioner finding Soriano guilty was a valid
impediment to the execution of the aforesaid decision for reinstatement. In other words a supervening cause
or reason had arisen which his rendered the decision of the court ordering reinstatement, no longer
enforceable.lawphil.net
Obviously a prevailing party in a civil action is entitled to a writ of execution of the final judgment
obtained by him within five years from its entry (section 443, Code of Civil Procedure). But it has been
repeatedly held, and it is now well-settled in this jurisdiction, that when after judgment has been
rendered and the latter has become final, facts and circumstances transpire which render its execution
impossible or unjust, the interested party may ask the court to modify or alter the judgment to
harmonize the same with justice and the facts (Molina vs. De la Riva, 8 Phil. 569; Behn, Meyer & Co. vs.
McMicking, 11 Phil. 276; Warner, Barnes & Co. vs. Jaucian, 13 Phil. 4; Espiritu vs. Crossfield and Guash,
14 Phil. 588; Flor Mata vs. Lichauco and Salinas, 36 Phil. 809). In the instant case the respondent
Cleofas alleged that subsequent to the judgment obtained by Sto. Domingo, they entered into an
agreement which showed that he was no longer indebted in the amount claimed of P995, but in a
lesser amount. Sto. Domingo had no right to an execution for the amount claimed by him. (De la Costa
vs. Cleofas, 67 Phil. 686-693).
For the foregoing considerations, the writ prayed for is hereby granted, and the order for the execution of the
judgment of the Court of First Instance in Special Civil Action No. 16 "Soriano vs. Pizarro" is hereby set aside.
With costs against respondent Justiniano Soriano.
Bengzon, C.J., Padilla, Bautista Angelo, Concepcion Reyes, J.B.L., Barrera, Paredes, Dizon and De Leon, concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-33841 October 31, 1984
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FLAVIANO PUDA Y GARAPEA alias "FLAVIO PUDA", accused-appellant.

GUTIERREZ, JR., J.:+.wph!1

This case is before us for the automatic review of a decision of the Court of First Instance of Rizal, Branch II,
sentencing the accused-appellant to suffer the penalty of death after finding him guilty beyond reasonable
doubt of the crime of murder qualified by treachery and premeditation with two aggravating circumstances.
The accused-appellant was also ordered to indemnify the heirs of the victim in the sum of P6,000.00 and to
pay the costs.
The original information for murder reads:t.hqw
That on or about the 19th day of December, 1959, in the municipality of Paraaque, Province of
Rizal, Philippines and within the jurisdiction of this Honorable Court, the said accused, with
evident premeditation and treachery and with intent to kill, did then and there wilfully,
unlawfully and feloniously attack and wound with a dagger one Ching Tian Un while he was
sleeping, thereby upon him two mortal wounds which directly caused his instantaneous death.
All contrary to law, and with the following aggravating circumstances, to wit:
1. That the crime was committed in the dwelling of the victim, Ching Tian Un, the latter not
having given provocation;
2. That the crime was committed in the night time, a circumstance deliberately sought by the
accused to facilitate the commission thereof;
3. That the crime was committed after an unlawful entry;and
4. That as a means to the commission of the crime a wall or window was broken.
At his arraignment, the appellant, with the assistance of his counsel de oficio, Atty. Norberto Inlayo, voluntary
and spontaneously pleaded guilty. In view however of the gravity of the offense charged and because several
aggravating circumstances were alleged, the lower court required the prosecution to submit evidence.

From the evidence submitted, the following facts were established and were made the basis by the court a
quo for its decision:t.hqw
... it appears that in the early morning of December 19, 1959 defendant Flaviano Puda climbed
over the fence of the house of Luis Ching Kiat Biak located at 557 Tomas Claudia Street,
Paraaque, Rizal, then once over the fence he clambered to the awning (media agua) of the
back part of the ground floor of the house and from there, he went up to the second story,
removed the wooden mouldings which held in place the glass plates of the transom located
over one of the windows,and then removed the glass plates thereby causing an opening to be
made; that thereafter he removed his rubber shoes and went thru the opening and gained
entrance into the bedroom of Ching Tian Un, son of the owner of the house who was then
sleeping alone in said bedroom at the time; that after having gained entry into the bedroom,
defendant stabbed twice the sleeping Ching Tian Un with a dagger causing the death of the
latter (Confession of defendant marked exhibit H). The method of entry into the house by the
defendant as hereby outlined is corroborated by the testimony of Purisima de Dumaual, a
chemist of the National Bureau of Investigation, who examined the rubber shoes used by the
defendant, and who testified that she had examined the same and had found on their soles
paints Identical with the paint of the awning where the defendant walked on in going up
towards the window of the house over which he gained entrance.
Demetrio de Leon, Chief of Police of Paraaque, Rizal, testified that in the morning of
December 19, 1959 he received a report that a Chinese boy was killed in his bedroom at Tomas
Claudio, Baclaran, Paraaque, and so he sent Lt. Peafiel, Sgt. Siga, and Pat. Rosendo Cruz of his
office to conduct an investigation. Pat Rosendo Cruz, one of the policemen mentioned by the
Chief of Police, testified that about 3:30 in the morning he went to the house of the victim
Ching Tian Un and found the room where he slept splattered with blood; that all the windows
of the room were closed and barred by iron grills but he found that the glass plates of the
transom over one of the windows had been removed. According to him he found the pair of
rubber shoes ( Exhibit C), the glass plates of the transom as well as the moulding that had kept
them in place on the awning below the transom. He also found in the yard of the house the
hunting knife, Exhibit B and a handkerchief, Exhibit C; that the handkerchief, the knife or dagger
and the pair of rubber shoes which were used allegedly by the defendant were all sent to the
Bureau of Investigation for examination.
According to the examination conducted by the chemist of the National Bureau of
Investigation, the aforementioned Purisima Dumaual, the stains which she found in the
handkerchief, Exhibit C and the dagger, Exhibit B, were human blood.
The evidence further established that after the defendant had been arrested and after he had
made the statement, Exhibit H, he was requested to reenact his movements and from the
reenactment it was shown that defendant may climbed over the fence and went over the
awning of the house wearing the pair of rubber shoes, Exhibit C-1; that after he had removed
the mouldings around the glass places of the transom he removed his shoes and left them on
the awning and then he entered the room.
Dr. Jesus Crisostomo of the National Bureau of Investigation who performed the autopsy on the
body of the deceased Ching Tian Un testified that he found two stab wounds on the chest and
upper abdomen of the deceased, the one on the chest having a width of 2-1/2 cm. and a depth
of 12 cm. the right ventricle of the heart having been penetrated down to the left ventricular

chamber. The other wound was a gaping one 3.1 cm. in length and extended down the upper
abdominal cavity to a depth of 13 cm and involved the supermedial aspect, left lobe of the liver.
Dr. Crisostomo gave an opinion that the stab wound on the chest was fatal and was the one
which caused the death of the deceased. The other testimonies established that the
fingerprints found on the window under the transom and in the room of the victim when
developed were found to be Identical to those of the defendant.
When it came to the turn of the appellant to testify, he at first stated that he was not guilty. Later on,
however, he reverted to his plea of guilty. Contrary to his previous confession, however, the appellant
testified that he gained entry into the house of the victim at around 3:00 o'clock that morning through the
main door which was open. Thereafter, he directly proceeded upstairs to the bedroom of the victim the door
of which was also open in order to steal some money although he did not know whose money he, was looking
for. According to the appellant, the victim who was out of the room when he entered, immediately came and
attempted to hit him three times with a piece of wood about two feet and one and a half inches wide, but he
managed to evade the attack and instead the victim hit the window. He then stabbed the victim twice with
something that he picked up from the drawer even before the victim attempted to hit him again. After the
stabbing, the appellant ran away by passing through the transom of the window which had no glass or shade.
(T.S.N., pp. 12-19, August 9, 1960). During the cross-examination, the appellant testified that he found the
blade which he used in stabbing the victim inside the drawer ransacking the same to look for money and he
took the blade because he wanted it. (T.S.N., p. 21, August 9, 1960) Reminded that when he reenacted the
crime, he showed that he reached the bedroom by passing through the transom of the window, he stated that
he made that re-enactment only because he was beaten on the left part of his face between the left eye and
the left ear. (T.S.N., p. 23, August 9, 1960).
The trial court found the version of the prosecution more credible especially since it was supported by the
accused's confession, Exhibit H, which showed that the accused had been earlier convicted by the Court of
First Instance of Rizal for having stolen P100.00 from the father of the victim and for which reason he was
dismissed as houseboy and that because of this and of the fact that he had not been treated well by the
deceased he went to the victim's house in the night of December 19, 1959 with the intention to kill the
deceased; that the court also found that the shoes the accused used were stolen by him from the said house;
that he really passed through the transom of the window, removing however the said shoes before entering
the room; that once inside the room, he stabbed the deceased twice; that after stabbing the deceased who
was then sleeping, he escaped but left behind him the pair of shoes and that he also lost on the way of the
dagger he used in stabbing the deceased.
The trial court also found the following aggravating circumstances to be present, namely-treachery which
qualified the killing to murder; evident premeditation which was off-set by the appellant's plea of guilty;
unlawful entry and dwelling.
Thus, on November 21, 1960, the trial court found the accused guilty of murder with two aggravating
circumstances and sentenced him to the supreme penalty of death.
Unfortunately because of negligence of some court personnel the records of the case were not forwarded by
the court a quo to this Court for automatic review.
Eleven years after his conviction, the accused wrote a letter to this Court inquiring about the status of his case.
We inquired through a letter addressed to the Clerk of Court of the Court of First Instance of Pasig, Rizal,
about the veracity of the allegations of the letter of the accused and received a reply informing us that due to
the inadvertence of the then clerk in charge of criminal cases of Branch II, the records of this case were placed

in the archives sometime in 1960 instead of being forwarded to us. Hence, it was only then that the entire
records were elevated to this Court. The accused raises the following alleged errors:
I
THE TRIAL COURT A QUO ERRED IN ADMITTING THE ACCUSED-APPELLANT'S PLEA OF GUILTY FOR BEING
IMPROVIDENTLY GIVEN.
II
THE TRIAL COURT ERRED IN APPRECIATING AND GIVING CREDENCE TO ACCUSED-APPELLANT'S ALLEGED
CONFESSION STATEMENT (EXH. H) FOR BEING VIOLATIVE OF HIS RIGHT TO COUNSEL AND AGAINST SELFINCRIMINATION AND DUE PROCESS OF LAW.
III
THE TRIAL COURT A QUO ERRED IN APPRECIATING AND IN GIVING FULL CREDENCE TO EVIDENCE TAKEN FROM
THE ACCUSED-APPELLANT ALLEGED RE-ENACTMENT WITHOUT ASSISTANCE OF COUNSEL DURING CUSTODIAL
INVESTIGATION IN GROSS VIOLATION OF THE ACCUSED' RIGHT AGAINST SELF-INCRIMINATION AND DUE
PROCESS OF LAW.
IV
THE TRIAL COURT A QUO ERRED IN NOT GIVING CREDENCE TO ACCUSED-APPELLANT'S TESTIMONY
INTERPOSING QUASI-SELF DEFENSE TENDING TO ESTABLISH HOMICIDE.
V
THE TRIAL COURT ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCES OF TREACHERY AND EVIDENT
PREMEDITATION.
VI
THE TRIAL COURT A QUO ERRED IN NOT GRANTING THE ACCUSED-APPELLANT FULL OPPORTUNITY TO AN
EFFECTIVE DEFENSE TENDING TO ESTABLISH HOMICIDE.
VII
THE TRIAL COURT ERRED IN IMPOSING THE DEATH PENALTY FOR BEING VIOLATIVE OF THE CONSTITUTIONAL
PROVISION (1935 CONSTITUTION) AGAINST THE IMPOSITION OF CRUEL AND UNUSUAL PUNISHMENT.
VIII
IN ANY EVENT, ACCUSED-APPELLANT SHOULD NOT BE METED WITH THE SUPREME PENALTY OF DEATH BY
THIS HONORABLE SUPREME COURT AS HE HAS FULLY PAID HIS DUE TO SOCIETY FOR HAVING SUFFERED
ENOUGH IN STAYING IN DEATH ROW FOR MORE THAN TWENTY (20) YEARS.

With respect to the first assignment of error, the accused contends that his plea of guilty was not voluntarily
and spontaneously made but was improvidently given because neither his counsel nor the respondent judge
informed him of the consequences of his plea.
This contention has no merit. The records show that after entering his plea of guilty, the accused withdrew the
same in open court on April 25, 1960 stating as the reason that he was not thinking at the time he made the
plea. Subsequently, however, on August 9, 1960, he reiterated his plea of guilty with the assistance of his
counsel who assured the court that the accused understood the purpose of trial based on the plea of guilty
and that they were only proving mitigating circumstances. Thus, it is clear that aside from having been assisted
by his counsel when he reiterated his plea, the accused also had sufficient time to think about the
consequences of the same. Furthermore, notwithstanding his plea, the lower court continued with the trial
and required the prosecution to present its evidence and also gave the defense a chance to present its side.
The contention, therefore, of the appellant that the case should at least be remanded to the lower court for
re-arraignment and further proceedings on the ground that his plea was improvidently given cannot be
sustained.
The ruling in the case of People v. Onavia (120 SCRA 232) is applicable: t.hqw
xxx xxx xxx
... Although it did not explain to the accused the fun import of his plea of guilty, neither did it
automatically accept that plea nor did it render judgment based exclusively thereon. It
accepted evidence for the purpose of determining the accused's guilt and the degree of his
culpability to the end that such evidence would dispel all doubt that the accused
misunderstood the nature and effects of his plea of guilty. (People v. Daeng, 49 SCRA 222
[1973]. Where the Trial Court received evidence on the crime, there is no improvident
acceptance of a plea of guilty. (People v. Nismal, 114 SCRA 487, 490 [1982] citing People v.
Apduhan, Jr., 24 SCRA 798 [1968]. The defense contention, therefore, that the plea of guilty,
having been improvidently accepted, the case should be remanded to the trial court, is bereft
of basis. The validity of the judgment under review is unassailable.
Similarly, in People v. Nismal, supra, we ruled: t.hqw
xxx xxx xxx
... When, as in this case, the trial court in obedience to this Court's injunction in Apduhan
(People v. Apduhan, 24 SCRA 798) and similar cases, receives evidence to determine precisely
whether or not the accused has erred in admitting guilt, the manner in which the plea is made
loses legal significance, for the simple reason that the conviction is, as in this case, predicated
not on the plea but on the evidence proving the commission by the accused of the offense
charged.
Coming to the second and third assignments of errors, the accused maintains that the trial court erred in
appreciating and giving credence to the accused's confession and his alleged re-enactment of how he gained
entry into the house of the victim on the ground that both were executed by the accused without the
assistance of his counsel and therefore violated his right against self-incrimination.
It should be noted that the confession and re- enactment were executed by the accused long before the
effectivity of the 1973 Constitution. The "Miranda-type" protection given to the accused during a custodial

investigation, cannot be invoked by herein appellant as said right was incorporated into the Bill of Rights only
in 197,3 and has no retroactive effects. In the case of Magtoto v. Manguera (63 SCRA 4) we have settled this
issue and ruled that. t.hqw
xxx xxx xxx
... a confession obtained from a person under investigation for the commission of an offense,
who has not been informed of his right (to silence and) to counsel, is inadmissible in evidence if
the same had been obtained after the effectivity of the New Constitution on January 17, 1973.
Conversely, such confession is admissible in evidence against the accused if the same had been
obtained before the effectivity of the New Constitution, even if presented after January
l7,1973,and even if he had not been informed of his right to counsel since no law gave the
accused the right to be so informed before that date.
Hence, the trial court did not err in taking into account the confession and re- enactment of the accused as
part of the evidence against the latter.
With regard to the fourth, fifth and sixth assignments of errors, the accused contends that the trial court erred
in appreciating treachery and evident premeditation as qualifying circumstances and in not finding that the
crime committed was only homicide.
We are convinced that the crime committed was murder. Treachery and evident premeditation were both
present in the commission of the crime. The records of the case clearly establish the fact that the accused
after having served for eleven months as a houseboy of the victim's family was dismissed because he stole
money from his employers and for which he was convicted by the Court of First Instance of Rizal. Because of
this and the fact that he was not treated well by the deceased, he decided to seek revenge and did so in the
early morning of December 19, 1959. While everyone in the house of the deceased was still asleep, he forcibly
removed the glass from the transom of the window of the room of the deceased after he stealthily climbed up
the same. After he succeeded in entering the room, he stabbed the deceased twice while the latter was still
asleep and thereafter, he hurriedly climbed up the same window and made his exit through the same opening
of the transom which he had created upon his entry.
We cannot lend credence to the appellant's testimony that he gained entry into the house through the main
door which happened to be open at that time because aside from the testimony of Luis Ching Kiat Biak the
father of the deceased that he checked the doors of the house and the rooms of his children and found them
locked from the inside, it is also highly improbable that the main door of a house would be left open at 3:00
o'clock in the morning while every member of the household was stiff sleeping. Lt. Ismael de Leon also
testified that he did not see any piece of wood in the bedroom of the deceased which the accused claimed
was used by the deceased when the latter tried to hit him. There were also no signs of a struggle that may
have ensued between the deceased and the accused tending to establish the fact that the accused was really
asleep when the deceased stabbed him
From the necropsy report, it was shown that the deceased weighed 78 kilograms or around 171.6 pounds and
had a height of 168 centimeters or around 5' feet and 6 inches tall. The accused on the contrary weighs only
110 pounds and stood at 5 feet. If there was really a struggle which ensued between the two and if the
deceased really attempted to hit the accused three times with a piece of wood, the latter could not have
stabbed the deceased twice; once on the chest and the other on the abdomen with a depth of 12 and 13
centimeters respectively and in so short a time. According to the accused, he was in the room of the deceased
at 3:00 o'clock in the early morning of December 19, 1959 (T.S.N., p. 14, August 9, 1960) while according to

Patrolman Rosendo Cruz, he arrived at the house of the deceased at around 3:30 a.m. on the same day (T.S.N.,
p. 34, February 17, 1960). By that time, the accused had already escaped through the transom of the window
of the deceased's room and was outside of the premises of the house. It is, therefore, highly improbable that
between 3:00 o'clock and 3:30 a.m., or a span of less than 30 minutes, the accused was able to enter the room
of the deceased, evade the piece of wood which the deceased attempted to hit him with three times, pick up
a bladed instrument from the drawer and stab the latter twice one of which caused the mortal wound and
finally escape from the premises of the house by passing through a high window. The only way he could have
accomplished all of these in less than 30 minutes is if the deceased were asleep at that time so much so that
the accused did not have to exert extra effort to ensure his victim's death.
The trial court, therefore, correctly ruled that the crime committed was murder qualified by treachery and
that evident premeditation dwelling and unlawful entry were also present.
The next assignment of error alleges that the death penalty is violative of the constitutional right against the
imposition of cruel and unusual punishment. In the case of People v. Camano, (115 SCRA 688), we ruled that
the death penalty is not cruel, unjust or excessive. Citing the case of Harden v. Director of Prisons, 81 Phil. 741,
747, we further said that: t.hqw
The penalty complained of is neither cruel, unjust nor excessive. In Ex-parte Kemmler, 136 U.S.,
436, the United States Supreme Court said that 'punishments are cruel when they involve
torture or a lingering death, but the punishment of death is not cruel within the meaning of
that word as used in the constitution. It implies there something inhuman and barbarous
something more than the mere extinguishment of life.'
The Court, however, agrees with the accused's contention that the penalty should not be imposed on him
since he has been detained and continues to be in the death row for about 24 years now since as stated
earlier, it took eleven years after his trial and conviction before the records of this case were discovered and
transmitted to this Court for automatic review. For lack of the needed votes, the penalty of death is reduced
to reclusion perpetua. (People v. Advincula, 96 SCRA 875; People v. Saravia, 127 SCRA 100)
WHEREFORE, the decision appealed from is hereby AFFIRMED with the MODIFICATION that the penalty of
death is reduced to reclusion perpetua and the indemnity for the heirs of the victim increased to THIRTY
THOUSAND (P30,000.00) PESOS.
In view of the long period of time during which the accused-appellant has been in Death Row this case is
referred to the Board of Pardons and Parole for a thorough study of all aspects of the case, including the
accused's conduct while in prison, with the end in view of recommending executive clemency if warranted by
the facts.
SO ORDERED.1wph1.t
Aquino, Concepcion, Jr., Guerrero, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, De la Fuente and
Cuevas, JJ., concur.
Fernando, C.J., concurs in the result.
Teehankee, J., took no part.

Separate Opinions

MAKASIAR, J., concurring and dissenting:

Evident premeditation has not been proven. I concur in an other aspect.

Separate Opinions
MAKASIAR, J., concurring and dissenting:
Evident premeditation has not been proven. I concur in an other aspect.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 131116

August 27, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANTONIO L. SANCHEZ, ARTEMIO AVERION, LANDRITO "DING" PERADILLAS and LUIS CORCOLON,accused,
ANTONIO L. SANCHEZ and ARTEMIO AVERION, accused-appellants.
PARDO, J.:
What is before this Court is an appeal from the decision of Regional Trial Court, Branch 160, Pasig City,1 finding
accused Antonio L. Sanchez, Luis Corcolon y Fadialan, Landrito "Ding" Peradillas and Artemio Averion guilty
beyond reasonable doubt of murder committed Nelson Pealosa and Rickson Pealosa, and sentencing each
of the accused, as follows:
WHEREFORE, foregoing considered, the Court finds the accused Antonio Sanchez, Landrito "Ding"
Peradillas, Luis Corcolon, and Artemio Averion GUILTY beyond reasonable doubt of the crime of
MURDER punishable under ART. 48 of the Revised Penal Code and hereby sentences each of said
accused to suffer the penalty of reclusion perpetua and to pay jointly and severally, the heirs of the
victims each the sum of P100,000.00 for the death of Nelson Pealosa and Rickson Pealosa,
P50,000.00 as actual damages and moral damages of P50,000.00 and exemplary damages of
P30,000.00 and to pay the costs.1wphi1.nt

SO ORDERED.
City of Pasig.
December 27, 1996.
(s/t) MARIANO M. UMALI
Judge2
On March 1, 1994, Senior State Prosecutor Hernani T. Barrios filed with the Regional Trial Court, Calamba,
Laguna, an information for double murder against accused Antonio L. Sanchez, Luis Corcolon y Fadialan,
Landrito "Ding" Peradillas and Artemio Averion, the accusatory portion of which reads:
That on or about April 13, 1991, at about 7:45 p.m. more or less, in Barangay Curba, Municipality of
Calauan, Province of Laguna, and within the jurisdiction of the Honorable Court, the above-named
accused conspiring, confederating, and mutually aiding one another, with treachery and evident
premeditation, and with the use of a motor vehicle, at night time, all the accused then being armed
and committed in consideration of a price, reward or promise and of superior strength, did then and
there willfully, unlawfully, and feloniously shoot with the use of automatic weapons inflicting multiple
gunshot wounds upon Nelson Pealosa and Rickson Pealosa which caused their instantaneous deaths
to the damage and prejudice of their heirs and relatives.
CONTRARY TO LAW.3
On March 16, 1994, the case was raffled to Branch 34, Regional Trial Court, Calamba, Laguna.4 On March 17,
1994, the court ordered the arrest of accused Antonio L. Sanchez, Luis Corcolon and Ding Peradillas. On the
same date, Artemio Averion voluntarily surrendered to the court, which ordered Averion's transfer to the
provincial jail, Sta. Cruz, Laguna.5
Thereafter, the trial court committed the accused to the custody of proper authorities. 6
Upon arraignment on April 10, 1995, all the accused pleaded not guilty.7 The trial of the case thereby ensued.
On December 27, 1996, the trial court convicted all the accused of the complex crime of double murder, as
charged, the dispositive portion of which is set out in the opening paragraph of this opinion.
On February 27, 1997, all the accused, except Ding Peradillas, were present for the promulgation of the
decision. Peradillas was a member of the Philippine National Police and was under the custody of his
superiors. The trial court ordered his custodian to explain accused's non-appearance. On March 14, 1997, P/C
Supt. Roberto L. Calinisan, Chief, PNP-PACC Task Force Habagat, denied any knowledge of the murder case
against Peradillas. Hence, Peradillas was not suspended from the service pending trial. However, at the time
that Peradillas was to be presented to the court for the promulgation of the decision, he had disappeared and
could not be located by his custodian.8 The promulgation of the decision as to him was in absentia. Peradillas
and Corcolon did not appeal from the decision.
Accused Antonio L. Sanchez and Artemio Averion filed their respective appeals to this Court.
The facts are as follows:

On April 13, 1991, at around 10:00 in the morning, state witness Vivencio Malabanan, team leader of a group
of policemen, went to the Bishop Compound in Calauan, Laguna, as part of the security force of mayor
Antonio L. Sanchez. After a while, accused Ding Peradillas arrived and asked for mayor Sanchez. Peradillas
informed mayor Sanchez that there would be a birthday party that night at Dr. Virvilio Velecina's house in
Lanot, Calauan, Laguna, near the abode of Peradillas. Peradillas assured mayor Sanchez of Nelson Pealosa's
presence thereat. Dr. Velecina was a political opponent of mayor Sanchez for the mayoralty seat of Calauan,
Laguna, Mayor Sanchez then replied, "Bahala na kayo mga anak. Ayusin lang ninyo ang trabaho," and left the
premises. Peradillas immediately called Corcolon and Averion and relayed the message "Ayos na ang
paguusap at humanap na lang ng sasakyan." All the accused, including Malabanan, understood it as an order
to kill Nelson Pealosa, one of the political leaders of Dr. Velecina. 9
Afterwards, Peradillas, Corcolon and Averion made arrangements to acquire two-way radios and a vehicle for
the operation. At around 2:30 in the afternoon, Malabanan and the three accused went their separate ways
and agreed to meet at mayor Sanchez' house at 6:00 in the evening. Malabanan returned to his detachment
area at Dayap, proceeded to the municipal hall, then went home where Peradillas fetched him at 6:00 p.m.
They proceeded to mayor Sanchez' house where they met Averion and Corcolon, with the car and two-way
radios.10
At around 7:00 in the evening, Malabanan and the three accused boarded the car and went to Marpori Poultry
Farm in Barangay Lanot, near Dr. Velecina's house. Peradillas alighted and walked towards his own house,
near Dr. Velecina's house, to check whether Nelson Pealosa was at the party.
Thereafter, using the two-way radio, Peradillas informed the occupants of the car that Nelson Pealosa's jeep
was leaving the Velecina compound. Accused Averion immediately drove the car to the front of Peradilla's
house and the latter hopped in the car's back seat. Corcolon sat in the front seat beside him; witness
Malabanan sat at the left side of the backseat and Peradillas stayed at the right side of the back seat. The
group pursued Pealosa's jeep. When the accused's car was passing Victoria Farms, located about 100 meters
from Pealosa compound, Corcolon ordered Averion to overtake Pealosa's jeep. As the car overtook the
jeep, Peradillas and Corcolon fired at Pealosa's jeep, using M-16 and baby armalite rifles, executed in
automatic firing mode. There were three bursts of gunfire. Based on the sketch prepared by Malabanan,
illustrating the relative position of their car and Nelson's jeep at the time of the shooting, the assailants were
at the left side of the jeep.11
Rickson Pealosa, son of Nelson Pealosa, fell from the jeep. The jeep, however, continued running in a zigzag
position until it overturned in front of Irais Farm. After the shooting, the accused proceeded to the house of
mayor Sanchez in Bai, Laguna, and reported to mayor Sanchez that Pealosa was already dead. 12
Together with his superior SPO4 Lanorio and photographer Romeo Alcantara, policeman Daniel Escares went
to the crime scene. There, he saw the body of Nelson Pealosa slumped at the driver seat of the owner-type
jeep. They recovered the body of Rickson Pealosa slumped on a grassy place not far from where they found
Nelson Pealosa. After all the evidence and photographs were taken, they brought the cadavers to Funeraria
Seerez. Daniel Escares submitted his investigation report of the incident to the Provincial Director, Laguna
PNP Command.13
Dr. Ruben B. Escueta, Rural Health Physician, Rural Health Unit, Calauan, Laguna, conducted an autopsy on the
bodies of Nelson and Rickson Pealosa. Nelson Pealosa suffered massive intra-cranial hemorrhage and died
of cranial injury due to gunshot wounds. Rickson Pealosa died of massive intra thoracic hemorrhage due to
gunshot wounds.14 Dr. Escueta, as a defense witness, testified that based on the points of entrance and exit of
the wounds sustained by the Pealosas, it was not possible for the assailants to be at the left side of the

victims.15 It contradicted Malabanan's testimony that they were at the left side of the victims when the
shooting took place. He further stated that based on the wounds inflicted on the victims, the assailants were
either in a sitting or squatting position when they shot the victims. Some of the wounds indicated an upward
trajectory of the bullets.
On September 15, 1993, Janet P. Cortez, PNP ballistician, completed the ballistic tests conducted on the
twelve (12) empty shells found at the crime scene and the M-16 baby armalite surrendered by Corcolon.16 She
concluded that the 12 empty shells were fired using three (3) different firearms, one of which was the M-16
baby armalite.17
On August 18, 1995, Adelina Pealosa, common law wife of Nelson Pealosa and mother of Rickson, testified
that the whole family was in mourning and could not eat after what happened. 18 She testified that the family
incurred P250,000.00 for funeral expenses, but failed to present the appropriate receipts. She also stated that
Nelson Pealosa was earning one (1) million pesos per annum from his businesses. However, no income tax
return or other proofs were shown to substantiate the statement. 19
The accused interposed the defense of alibi and denial.
Luis Corcolon stated that he spent the whole day of April 13, 1991, until 8:30 in the evening, supervising the
poultry farm of his employers, Edgardo Tanchico and Orlando Dizon. He denied that he was in the company of
Averion and Peradillas that day, and that he participated in the Pealosa killings. He denied that he was ever
assigned as a security guard of mayor Sanchez. He claimed that the murder charges were concocted against
them for his refusal to testify against mayor Sanchez in the Gomez-Sarmenta case. He alleged that he was
maltreated, tortured, electrocuted and forced to implicate mayor Sanchez in the Gomez-Sarmenta rapeslayings. He denied that he owned the M-16 baby armalite used in killing the Pealosas.20
Detention prisoner George Medialde corroborated Corcolon's statement that they were implicated in the
Pealosa killing for their refusal to testify against mayor Sanchez. He claimed that Malabanan confessed to
him that the latter had killed the Pealosas, but with the aid of CAFGU men and not herein accused. He
averred that Corcolon and Averion were wrongfully implicated in the murder charges in deference to the
wishes of the investigators.21Zoilo Ama, another detention prisoner, claimed that Malabanan confessed that
he killed the Pealosas, but did not mention the involvement of Corcolon, Averion and mayor Sanchez.22
Accused Artemio Averion, a godson of mayor Sanchez, denied that he was involved in the Pealosa slayings.
On April 13, 1991, he claimed that he was in Lucena City, attending to his ailing father. He stayed there until
April 15, 1991. He maintained that he was wrongfully implicated in the Pealosa killings for his refusal to
testify against mayor Sanchez regarding the Gomez-Sarmenta rape-slayings. Malabanan asked for his
forgiveness for falsely incriminating them in the Pealosa case.23
Jesus Versoza, PNP Officer, Camp Crame, denied the allegations of Medialdea and Averion that they were
tortured and forced to testify against mayor Sanchez.24
Accused mayor Antonio L. Sanchez stated on April 12, 1991, he went to Anilao, Batangas, with his family.
Around 1:00 in the afternoon of April 13, 1991, his family went to Tagaytay City and stayed overnight at Taal
Vista Lodge. Around 10:00 in the morning of April 14, 1991, they went home to Calauan, Laguna. After
reaching his abode in Calauan around 12:00 noon, mayor Sanchez learned of the ambush-slayings of the
Pealosas. He immediately ordered an investigation of the case. He denied any involvement in the killing of
the victims.25

The trial court ruled that the prosecution's evidence clearly and convincingly established the participation of
the four (4) accused in killing the Pealosas. Malabanan gave a sincere, frank and trustworthy account of the
circumstances surrounding the killing. Furthermore, the trial court explained the discrepancies between
Malabanan's recollection of how the victims were shot and Dr. Escueta's conclusion on what transpired based
on the injuries sustained by the victims.
The trial court stated that the doctor's conclusion was based on the assumption that the victims were in a
sitting position inside the jeep. However, it was possible that after the first burst of gunfire, the victims were
hit and fell. During the second burst of gunfire, the victims were lying down or in a crouching position. Thus,
the entry-exit points of the bullets did not entirely correspond to Malabanan's account, which was based on
the assumption that the victims did not change their positions during the shooting incident.
The trial court ruled that the accused conspired in committing the crime. Treachery was present, thereby
qualifying the crime to murder. It appreciated the aggravating circumstances of evident premeditation,
nighttime and use of motor vehicle.
The trial court considered the crime as a complex crime of double murder punishable under Article 48 of the
Revised Penal Code. However, at the time of the commission of the offense on April 13, 1991, there was a
constitutional proscription on the imposition of the death penalty. Thus, each of the accused was sentenced
toreclusion perpetua, and to pay damages to the heirs of the victims, as earlier quoted.
Accused mayor Antonio L. Sanchez and Artemio Averion jointly appealed from the decision to the Supreme
Court.
In their sole assignment of error, accused mayor Sanchez and Averion contended that the trial court failed to
recognize the material inconsistencies between Malabanan's testimony and the physical and scientific
evidence presented before it. They pointed out the following inconsistencies, to wit:
1. Malabanan testified that a) when they fired at the victims, they were about the same elevation; 26 b)
they used two (2) guns in killing the victims;27 c) they were at the left side of the victims when the
shooting incident occurred.28 However, Dr. Escueta's autopsy report revealed that: 1) the assailants
were at a lower elevation; 2) three (3) kinds of guns were used; and 3) based on the injuries, assailants
were on the right side of the victims.
2. Malabanan's affidavit "Exhibit V" made on August 16, 1993, and sworn to on August 17, 1993, bears
two (2) signatures of the affiant Malabanan and dated September 15, 1993. However, during crossexamination, Malabanan stated that he executed and signed the affidavit on one occasion only, August
15, 1993.
3. Aurelio Centeno testified in the case of Gomez-Sarmenta slayings that Malabanan only responded to
the report that Pealosa had been killed. He averred that contrary to Malabanan's report, the latter
was not at the crime scene.
The two accused further averred that the material inconsistencies between Malabanan's testimony and the
autopsy and laboratory findings and conclusions seriously affect his credibility. They stressed that Malabanan
has sufficient motive to implicate mayor Sanchez and Corcolon in the Pealosa killings due to threats of mayor
Sanchez. They alleged that although generally alibi is considered a weak defense, there are times when it is
worthy of credence, such as in this case.

The Solicitor General supports the trial court's ruling that the prosecution adequately established the guilt of
the accused beyond reasonable doubt. Malabanan positively identified the accused as the perpetrators. He
testified in a categorical, straightforward, spontaneous and frank manner. The defense failed to satisfactorily
show that Malabanan had an ill motive to testify falsely against the accused. The alleged threat to
Malabanan's life was not adequately established or sufficient for him to falsely implicate the accused. As
regards the supposed inconsistencies between Malabanan's account of the events vis vis the autopsy and
ballistic reports, the Solicitor General pointed out that both vehicles were running at the time of the ambush.
It was a matter of instinct for the victims to shift positions as they were fired upon. Thus, contrary to Dr.
Escueta's conclusion, it was not impossible that the victims were hit from the right side of their bodies, even if
assailants were physically situated at the victim's left side. Hence, the apparent inconsistencies do not affect
witness Malabanan's credibility.
After a careful scrutiny of the evidence on record, we agree with the trial court that the prosecution
adequately established accused's guilt beyond reasonable doubt.
Malabanan gave a detailed account of the planning, preparation and the shooting incident. He narrated the
participation of each of the accused, to wit: (1) the order given by mayor Sanchez to execute Pealosa; (2)
Averion's acquisition of a vehicle and two-way radios to be used for the operation and in driving the car; (3)
Peradillas' act of relaying the information that Nelson Pealosa's jeep was leaving the Velecina compound; 4)
the way they pursued the victims; and 5) Corcolon and Peradilla's act of firing and killing the Pealosas.
The accused concentrated mainly on the seeming contradiction between the narration of Malabanan on how
the victims were shot, and the physician's report on the location of injuries sustained by them. However, as
the Solicitor General stated, both vehicles were running at the time of the shootout. It was unlikely that the
victims drove in a straight line parallel to that of the assailants. In fact, Malabanan testified that while being
fired at, Pealosa's jeepney was running in zigzag manner.29 It was a natural reaction for Pealosa to evade
the assailants as much as possible and to try to dodge the bullets. Furthermore, the assailants fired the guns in
automatic firing mode. Thus, the bullets burst out in different directions simultaneously. Hence, it was not
impossible for the victims to be hit in different parts of the body.
"This Court has held time and again that any minor lapses in the testimony of a witness tend to buttress,
rather than weaken, his or her credibility, since they show that he or she was neither coached nor were his or
her answers contrived. Witnesses are not expected to remember every single detail of an incident with perfect
or total recall."30
Furthermore, the fact that the trial court relied on the testimony of a single witness does not effect the verdict
of conviction. Criminals are convicted, not on the number of witnesses against them, but on the credibility of
the testimony of even one witness, who is able to convince the court of the guilt of the accused beyond a
shadow of doubt.31 What witness can be more credible than someone who was in the planning, preparation
and execution of the crime.
The inconsistency between the affidavit and testimony of Malabanan is too minor to affect his credibility. At
any rate, we have held that affidavits are generally subordinate in importance to open court declarations.
Affidavits are not complete reproductions of what the declarant has in mind because they are generally
prepared by the administering officer and the affiant simply signs them after the same have been read to
him.32
Accused-appellants raised that Malabanan's delay in reporting the involvement of the accused in the crime
casts doubt on his credibility. However, jurisprudence teaches us that delay in revealing the identity of the

perpetrators of a crime does not necessarily impair the credibility of a witness, especially where such witness
gives a sufficient explanation for the delay.33 It was natural for Malabanan to keep silent during that time for,
aside from being a co-conspirator, mayor Sanchez was a powerful opponent.
Consequently, we find that accused-appellant's defenses of alibi and denial are bereft of merit. The defenses
of alibi and denial are worthless in the face of positive testimony of a witness showing the involvement of
each of the accused.
However, we disagree with the trial court that the accused committed a single complex crime of double
murder. Article 48 of the Revised Penal Code provides that when a single act constitutes two or more grave or
less grave felonies, or when an offense is a necessary means of committing the other, the penalty for the more
serious crime in its maximum period shall be imposed.
The question is whether the act of shooting the victims using armalites in automatic firing mode constitutes a
single act and, thus, the felonies resulting therefrom are considered as complex crimes. We rule in the
negative.
In People v. Vargas, Jr., we ruled that "several shots from a Thompson sub-machine, in view of its special
mechanism causing several deaths, although caused by a single act of pressing the trigger, are considered
several acts. Although each burst of shots was caused by one single act of pressing the trigger of the submachinegun, in view of its special mechanism the person firing it has only to keep pressing the trigger of the
sub-machinegun, with his finger and it would fire continually. Hence, it is not the act of pressing the trigger
which should be considered as producing the several felonies, but the number of bullets which actually
produced them."34 In the instant case, Malabanan testified that he heard three bursts of gunfire from the two
armalites used by accused Corcolon and Peradillas. Thus, the accused are criminally liable for as many offenses
resulting from pressing the trigger of the armalites. Therefore, accused are liable for two counts of murder
committed against the victims, Nelson and Rickson Pealosa, instead of the complex crime of double murder.
Evidently, treachery was present in the execution of the crimes. The attack against the victims, who were
unarmed, was sudden, catching them unaware and giving them no opportunity to defend themselves.35 The
presence of treachery qualifies the crimes to murder.
Conspiracy is likewise adequately established. Notwithstanding the fact that mayor Sanchez was not at the
crime scene, we are convinced that he was not only a co-conspirator, he was the mastermind of the ambush
slayings or the principal by inducement.36 Malabanan testified that Nelson Pealosa was killed upon order of
mayor Sanchez. After the commission of the crime, the assailants reported to mayor Sanchez. In conspiracy, it
is not necessary to show that all the conspirators actually hit and killed the victim. What is important is that
the participants performed specific acts with such closeness and coordination as unmistakably to indicate a
common purpose or design in bringing about the death of the victim. Conspiracy renders appellants liable as
co-principals regardless of the extent and character of their participation because in contemplation of law, the
act of one conspirator is the act of all.37
The trial court properly appreciated the existence of evident premeditation. The prosecution clearly showed
the presence of the following requisites: a) the time when the accused determined to commit the crime; b) an
act manifestly indicating that the accused had clung to their determination; and c) sufficient lapse of time
between such determination and execution to allow them to reflect upon the consequences of their acts. 38 As
clearly as 10:00 in the morning, the accused had conspired to kill Nelson Pealosa. They even looked for twoway radios and a vehicle to be used for the operation. Indeed, sufficient time had lapsed to allow the accused
to reflect upon the consequences of their actions.

Accused specifically used a motor vehicle to execute the crime. Thus, the aggravating circumstance of use of a
motor vehicle must be appreciated.
However, we cannot appreciate the generic aggravating circumstance of nighttime; while the crime was
committed at night, the prosecution failed to show that the malefactors specifically sought this circumstance
to facilitate the criminal design.39 The fact that the crime happened at 7:00 in the evening does not indicate
that accused made use of the darkness to conceal the crime and their identities.
At the time of the commission of the crime on April 13, 1991, the penalty for murder under Article 248 of the
Revised Penal Code was reclusion temporal in its maximum period to death. Considering the presence of
aggravating circumstances, the accused should be sentenced to the death penalty for each murder. However,
in view of the constitutional proscription of the death penalty at that time, each of the accused is sentenced to
two (2) penalties of reclusion perpetua.
Regarding the civil liability of the accused, the trial court ordered the accused to pay the heirs of Nelson and
Rickson Pealosa each, the sum of P100,000.00, P50,000.00 as actual damages, P50,000.00 as moral damages,
and P30,000.00 as exemplary damages, and to pay the costs.
The P50,000.00 award as actual damages should be deemed as indemnity for the untimely demise of the
victims. We have held that only expenses supported by receipts and which appear to have been actually
expended in connection with the death of the victims may be allowed.40 No proof was presented to sustain
the award of actual damages.
Similarly, we can not award damages for loss of earning capacity. All that was presented in evidence was the
testimony of the common law wife, Adelina Pealosa, that Nelson earned P1,000,000.00 a year. We have held
that "for lost income due to death, there must be unbiased proof of the deceased's average income. Selfserving, hence unreliable statement, is not enough."41
Considering the attendance of aggravating circumstances, we sustain the award of exemplary damages of
P30,000.00, per victim, in accordance with Article 2230 of the Civil Code.42
As regards moral damages, we affirm the P50,000.00 awarded to the heirs of Rickson Pealosa. 43 His mother,
Adelina Pealosa, testified to the suffering caused by his death.44 We also sustain the award of moral damages
to the heirs of Nelson Pealosa. His common law wife testified to the mental anguish suffered by the family
due to Nelson's death.45 Under Article 2206 of the Civil Code, the spouse, legitimate and illegitimate
descendancts and ascendants of the deceased may demand moral damages for mental anguish by reason of
the death of the deceased. However, the common law wife is not entitled to share in the award of moral
damages.1wphi1.nt
WHEREFORE, the Court MODIFIES the decision of the Regional Trial Court, Branch 160, Pasig City, and finds
accused-appellants Antonio L. Sanchez and Artemio Averion guilty beyond reasonable doubt of two (2) counts
of murder, and sentences each of them to suffer two (2) penalties of reclusion perpetua, and each to pay
jointly and severally the respective heirs of victims Nelson and Rickson Pealosa, as follows:
1) Indemnity for death -

P50,000.00

2) Moral damages -

50,000.00

3) Exemplary damages -

30,000.00

Total -

P130,000.00
=========

With costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Kapunan and Ynares-Santiago, JJ., concur.

Footnotes

In Crim. Case No. 107789-H, presided over by Judge Mariano M. Umali, rendered on December 27,
1996,Rollo, pp. 37-66.
2

Original Record, pp. 488-517.

Original Record, p. 1.

Presided over by Judge Francisco M. Guererro. On March 28, 1994, the prosecution filed a request for
change of venue with the Supreme Court. On May 16, 1994, accused filed with the Executive Judge,
Calamba, Laguna, a petition for re-raffle, in view of the impending retirement of Judge Guerrero. The
case was raffled to the sala of Judge Norberto Y. Geraldez, Branch 36, Calamba, Laguna. On February
28, 1995, the Supreme Court granted the request for change of venue and transferred the case to
Regional Trial Court, Branch 70, Pasig City, presided over by Judge Harriet O. Demetriou. On March 14,
1995, Judge Demetriou voluntarily inhibited herself from trying the case. The case eventually was
raffled to Branch 160, Pasig City, presided over by Judge Mariano M. Umali.
5

Original Record, p. 148.

Antonio Sanchez and Luis Corcolon were placed under the custody of PNP Custodial Group, Camp
Crame, Quezon City; Artemio Averion was placed under the custody of the Provincial Warden,
Provincial Jail, Sta. Cruz, Laguna; Ding Peradillas was placed under the custody of P/Sr. Supt. Panfilo M.
Lacson, PACC Task Force, Habagat Headquarters, Camp Crame, Quezon City. Ibid., pp. 155, 156, 162.
7

Ibid., pp. 196-199.

Original Record, pp. 530-531.

TSN, June 20, 1995, pp. 8-12, 39-41, 62, 65.

10

Ibid., pp. 13-14, 41-46.

11

Ibid., pp. 17-20, 29-35.

12

Ibid., pp. 21-23.

13

Exhibit AA.

14

Exhibit B, p. 5 and Exhibit H, pp. 13-14.

15

TSN, March 18, 1996, pp. 4-95.

16

Exhibit Q.

17

TSN, May 23, 1995, pp. 5-140.

18

TSN, August 18, 1995, p. 21.

19

TSN, August 18, 1995, pp. 17-20.

20

TSN, October 24, 1995, pp. 11-60.

21

TSN, October 27, 1995, pp. 4-51.

22

TSN, November 14, 1995, pp. 5-27.

23

Ibid., pp. 28-54.

24

TSN, September 17, 1996, pp. 4-50.

25

TSN, March 18, 1991, pp. 98-117.

26

TSN, June 20, 1995, pp. 21, 73.

27

Ibid., pp. 71, 76.

28

Ibid., Exhibit U, pp. 48-50.

29

TSN, June 20, 1995, p. 73.

30

People v. Henry Benito, G.R. No. 128072, February 19, 1999.

31

Bautista v. Court of Appeals, 288 SCRA 171, 178 (1998).

32

People v. Lusa, 288 SCRA 296, 302-303 (1998).

33

People v. Pallorca, 288 SCRA 151, 164-165 (1998).

34

184 SCRA 254, 263 (1990), citing L.B. Reyes, The Revised Penal Code, pp. 559-560, Book I.

35

People v. Silveriano Botona, G.R. No. 115693, March 17, 1999.

36

Cf. People v. Tabag, 268 SCRA 115 (1997).

37

People v. Cara, 283 SCRA 96, 107 (1997).

38

People v. Romulo Gutierrez, Jr., G.R. No. 116281, February 8, 1999.

39

People v. Oliano, 287 SCRA 158, 178 (1998).

40

People v. Cesar Sanchez, G.R. No. 118423, June 16, 1999.

41

People v. Mario Villanueva, G.R. No. 122746, January 29, 1999.

42

People vs. Alfonso Badon, G.R. No. 126143, June 10, 1999.

43

People vs. Mariano Verde, G.R. No. 119077, February 10, 1999.

44

TSN, August 18, 1995, p. 21.

45

Ibid.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 96765 July 5, 1993

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SERGIO CURARATON y MONINIO, accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for the accused.

MELO, J.:
Sergio Curaraton y Moninio was charged with the crime of murder allegedly committed as follows:
That on or about December 12, 1989, in the City of Davao, Philippines, and within the
jurisdiction of this Honorable Court, the above-mentioned accused, armed with a bolo, with
treachery and cruelty and outraging the corpse of the victim, with intent to kill, willfully,

unlawfully and feloniously attacked, assaulted and hacked with said bolo one Timoteo Cabagte,
thereby inflicting upon the latter mortal wounds which caused his death.
CONTRARY TO LAW.
Davao City, Philippines, December 20, 1989. (p. 13, Rollo.)
After trial on merits due to a plea of not guilty being entered, the court a quo rendered a decision on
December 4, 1990, disposing:
WHEREFORE, the Court finds the accused Sergio Curaraton guilty beyond reasonable doubt of
the crime of murder with the attendant circumstances of cruelty and disregard of the age of his
victim, Timoteo Cabagte, and hereby sentences him to suffer reclusion perpetua and to
indemnify his heirs in the amount of P30,000.00 for his death and P3,000.00 for his burial.
Accused-appellant now seeks reversal on the basis of self-defense, or "on the assumption that his conviction is
in order", that he be credited the mitigating circumstance of voluntary surrender.
The factual setting of the case, as depicted by the Solicitor General in his counter-statement of facts, which,
after a review of the record, we find to be fully supported by the evidence and which we, therefore, hereby
adopt, is as follows:
In the evening of December 12, 1989, Sergio Tonacao was at his house in Kutson, Biao, Guianga,
Tugbok, Davao City. At about 10:00 p.m., appellant appeared outside his house armed with a
bolo and a big stone and challenged Tonacao to come down and fight. Tonacao advised
appellant to go home and that they would just talk about the matter the next day (pp, 3-5, TSN
Aug. 28,1990). Appellant responded that he wanted to settle the matter amicably with Tonacao
that same night. Tonacao agreed and he came down from his house. Appellant shook hands
with him and also with Timoteo Cabagte, Tonacao's brother-in-law, who joined them after
coming from the house of Tonacao's neighbor about 40 meters away. Appellant told Tonacao:
"Tocayo (name sake), you are not involved in this." (p. 5). Appellant, who was 37 years old,
addressed Cabagte, who was 54 [should be 65] years old, as "Manong" as they shook hands:
"Manong, you have nothing to do with this." (p. 5). After they shook hands, Cabagte went back
to his neighbor Claudio Capricio's house. Tonacao noticed that appellant followed Cabagte (pp.
4, 5, Id.) and hid behind a coconut tree along the path leading to the house of Capricio about 10
armslength from Tonacao's house (p. 6). Tonacao was curious why appellant was still holding
the stone and bolo so he surreptitiously went closer to observe (p. 6). When Tonacao was
about two armslength from appellant, Cabagte came walking back along the trail and as
Cabagte passed the coconut tree where appellant was hiding, Tonacao saw appellant, suddenly
strike Cabagte with the rock he was holding. Cabagte fell on the ground and appellant
immediately thrust his bolo into Cabagte's body several times. Not satisfied with felling
Cabagte, appellant chopped the victicm's body with the same bolo, hitting the victim on the left
forehead, left portion of the face, and at the back, even as the victim lay motionless and dead
(p, 7). Tonacao was afraid that appellant would turn on him, and so he did not go to the victim's
aid (p. 7).
Tonacao sought the assistance of Danilo Palad and together they went to the scene of the
crime and found only the mutilated corpse of Cabagte. Appellant was no longer at the scene (p.
8).

The Necropsy Report (Exh. G) prepared and signed by Dr. Napoleon dela Pea, District Health
Officer at Calinan, Davao City, described the location and severity of the eleven wounds
suffered by the victim, to wit: (i) The first wound is a "hack wound, 13 cm. length, 4 cm. depth,
occipital, left" located at the back portion of the head, running diagonally; (ii) the second
wound is a "hack wound, 4 cm. length, 2 cm. depth, mandibular, left" located at the jaw; (iii)
the third wound is a "hack wound, 5 cm. length, 4 cm. depth, mandibulomaxilliary left", located
at the left temple running down to the jaw; (iv) wound no. 4 is an "incised wound, 2 cm. length,
one cm. depth" located on the nose bridge; (v) wound no. 5 is a "lacerated wound, 2 cm.
length, scalp depth supraorbital right" located at the eyebrow; (vi) wound no. 6 is a "hack
wound, 7 cm. length, 5 cm. depth, lumbar right" at the right side of the body below the ribs;
(vii) wound no. 7 is "amputated forearm, distal third right" the right hand was completely cut
off, about 2 inches from the wrist; (viii) wound no. 8 is "lacerated wound, one cm. length cm.
depth, anterior axillary line, axilla "from front of the right armpit going inside the armpit; (ix)
wound no. 9 is a "hack wound, 15 cm. length, 5 cm. depth, scapular, left", at the back just
below the left shoulder, running down to the anterior axillary line, below armpit; (x) wound no.
10 is a "hack wound, 13 cm. length, 6 cm. depth, suprascapular, right" from just below the right
shoulder at the back running horizontally towards the end of the shoulder; and (xi) wound no.
11 is a "hack wound, 7 cm. length, 5 cm. depth, gluteal, left" at the left buttocks (pp. 42-47, TSN
8-30-90).
The cause of death was massive hemorrhage secondary to hack wounds. The wounds could
have been caused by a sharp-bladed instrument. The most serious and fatal wound is wound
no. 1 (hack wound, 13 cm. length, 4 cm. depth, occipital) because it involved the brain that
wound alone could already have caused the death (pp. 47-48, TSN 8-30-90).
At around 11:00 p.m. that same night, Epifanio Cabagte, brother of the victim reported the
killing of his brother at the hands of appellant to the Tugbok Patrol Station. Patrolman Limbaco
went to the scene of the crime to investigate and thereafter recorded the incident in the
blotter. The following morning he received information from the Calinan Patrol Station that
appellant had surrendered himself and the bolo (Exhibit "A") at said station where the incident
was also entered in the blotter (Exhibit "B"). At 7:30 in the morning of December 13, Pat.
Limbaco dispatched three policemen to Calinan to take custody of appellant and the bolo.
Appellant denied that prior to the incident he had gone to the house of Tonacao and shook
hands with Tonacao and Cabagte but claimed that he was on his way home, after cleaning his
tuba container, when somebody struck him down with a nipa frond. He stood up and hit back.
(pp. 4-8, Appellee's Brief.)
Under his first assigned error, accused-appellant contends that the trial court erred in not acquitting him on
the ground of self-defense. He must, however, understand that an accused who puts up self-defense bears the
burden of establishing the elements of self-defense by clear and convincing evidence to the satisfaction of the
court (Ortega vs. Sandiganbayan, 170 SCRA 38 [1989]). Should he fail to do so, his conviction follows as a
matter of course. Said elements are the following:
1. Unlawful aggression on the part of the victim.
2. Reasonable necessity of the means employed to prevent or repel the aggression, and

3. Lack of sufficient provocation on the part of the person defending himself (Ortega vs.
Sandiganbayan, supra, p. 42.)
It is essential that the first element of self-defense, unlawful aggression initiated by the victim, must be clearly
shown for in its absence, self-defense cannot exist (Ortega vs. Sandiganbayan, supra). The evidence shows
that, after accused-appellant assured Cabagte, the victim, addressing and telling him, "Manong, you have
nothing to do with this", and after they shook hands, Cabagte left to go back to the house of his neighbor.
Accused-appellant, however, thereafter waited in ambush for Cabagte behind a coconut tree along the path
leading to the house of Capricio. When Cabagte by the coconut tree behind which accussed-appellant was
lurking, accused-appellant suddenly sprang out of ambush and struck Cabagte with the rock he was holding,
stunning and felling him. Thereupon, accused-appellant immediately thrust his bolo into Cabagte's body
several times and hacked the fallen Cabagte repeatedly at several parts of his body as he lay still and
motionless.
The claim of accused-appellant that he was attacked by Cabagte with a nipa frond is bereft of credence
considering that Cabagte was the first one to leave the house of Sergio Tonacao peacefully winding his way
toward the house of his neighbor Claudio Capricio, lulled into a false sense of security that accused-appellant
bore him no enmity by accused-appellant's conciliatory but deceitful declaration that "Manong, you have
nothing to do with this."
Even assuming that Cabagte indeed attacked accused-appellant with a nipa frond, the killing of Cabagte can
not be justified for accused-appellant employed unreasonable means to repel the alleged attack. We doubt
that a nipa frond can inflict serious injuries much less cause death. Accused-appellant's reaction to this
imagined aggression was clearly excessive and unnecessary as shown by the multiple wounds he had inflicted
on the victim.
We, therefore, find that accused-appellant has failed to establish that he acted in self-defense when he killed
Cabagte. Consequently, it is no longer necessary to discuss the other elements of self-defense.
The crime committed by accused-appellant is murder qualified by treachery as the killing was sudden and
unexpected (People vs. Liston, 179 SCRA 415 [1989]). The killing, however, was not attended by the
aggravating circumstances of cruelty and disregard of age as erroneously found by the trial court. Cruelty is to
be taken into consideration where the multiple wounds of the victim were inflicted unnecessarily while he was
still alive in order to prolong his physical suffering (People vs. Curiano, 9 SCRA 323 [1963). The evidence in the
case at bar shows that, when accused-appellant continued hacking Cabagte, the latter was already dead or at
least totally unconscious and could no longer feel or experience additional pain that would prolong his
physical suffering. Neither can the aggravating circumstance of age be appreciated because the same is
absorbed by treachery (People vs. Gervacio, 24 SCRA 960 [1968]).
The mitigating circumstance of voluntary surrenders should have been considered by the trial court in the
determination of the penalty. The evidence shows that immediately after slaying Cabagte, accused-appellant
walked all the way straight to the Calinan Patrol Station in Calinan, Davao City to surrender.
The crime committed is murder qualified by treachery, with the mitigating circumstance of voluntary
surrender and with no aggravating circumstance. The penalty for murder under Article 248 of the revised
Penal Code is reclusion temporal in its maximum period to death. Pursuant to Article 64 (2) in relation to
Article 77 of the Revised Penal Code, the penalty to be imposed should be 17 years, 4 months, and 1 day, as
minimum, to 20 years, as maximum, both within the range of reclusion temporal. In accordance with the
Indeterminate Sentence Law which applies in this case, the minimum should be within range of the penalty

next lower in degree to be fixed in any of its periods in the discretion of the Court. Under Article 61, paragraph
3, of the Revised Penal Code, when the penalty prescribed for the crime is composed of one or two indivisible
penalties and the maximum period of another divisible penalty, as in this case, the penalty next lower is
degree shall be composed of the medium and minimum periods of the proper divisible penalty and the
maximum of that immediately following in the scale of penalties. The penalty next lower in degree, therefore,
ranges from the maximum of prison mayor to the medium of reclusion temporal (People vs. Ordiales, 42 SCRA
238 [1971]).
The award of civil indemnity should be increased to P50,000.00 in accordance with the more recent
pronouncements of this Court (People vs. Jereza, 189 SCRA 690 [1990]; People vs. Sazon, 189 SCRA 700 [1990;
People vs. Lugto, 190 SCRA 754 [1990]; People vs. Iligan, 191 SCRA 643 [1990]).
WHEREFORE, the decision of the trial court is hereby AFFIRMED with the following modifications:
1. The penalty shall be an imprisonment term to ten (10) years and one (1) day of prison mayor, as minimum,
to eighteen (18) years, eight (8) months and one (1) day of reclusion temporal, as maximum (People vs.
Alcantara, 163 SCRA 783 [1988]); and
2. The civil indemnity to be paid by accussed-appellant to the heirs of the victim is increased to Fifty Thousand
Pesos (P50,000.00).
SO ORDERED.
Feliciano, Bidin, Davide, Jr. and Romero, JJ., concur.