G.R. No.
L-44264 September 19, 1988
HEDY GAN y YU, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and the PEOPLE
OF THE PHILIPPINES, respondents.
Pacis, Baluyot, Reyes & De Leon for petitioner.
The Solicitor General for respondents.
FERNAN, C.J.:
Petitioner Hedy Gan was convicted of the crime of
Homicide thru Reckless Imprudence in Criminal Case No.
10201 of the then Court of First Instance of Manila,
Branch XXII presided by Judge Federico C. Alikpala. She
was sentenced to an indeterminate penalty of four (4)
months and one (1) day ofarresto mayor as minimum
and two (2) years, four (4) months and one (1) day
of prision correccional as maximum and was made to
indemnify the heirs of the victim the sum of P12,000.00
without any subsidiary imprisonment in case of
insolvency and to pay the costs. On appeal, the trial
court's decision was modified and petitioner was
convicted only of Homicide thru Simple Imprudence.
Still unsatisfied with the decision of the Court of
Appeals,1 petitioner has come to this Court for a
complete reversal of the judgment below.
The facts of the case as found by the appellate court
are as follows:
In the morning of July 4, 1972 at about
8:00 o'clock, the accused Hedy Gan
was driving a Toyota car along North
Bay Boulevard, Tondo, Manila. While
in front of house no. 694 of North Bay
Boulevard, there were two vehicles, a
truck and a jeepney parked on one
side of the road, one following the
other about two to three meters from
each other. As the car driven by the
accused approached the place where
the two vehicles were parked, there
was a vehicle coming from the
opposite direction, followed by
another which tried to overtake and
bypass the one in front of it and
thereby encroached the lane of the
car driven by the accused. To avoid a
head-on collision with the oncoming
vehicle, the defendant swerved to the
right and as a consequence, the front
bumper of the Toyota Crown Sedan hit
an old man who was about to cross the
boulevard from south to north, pinning
him against the rear of the parked
jeepney. The force of the impact
caused the parked jeepney to move
forward hitting the rear of the parts
truck ahead of it. The pedestrian was
injured, the Toyota Sedan was
damaged on its front, the jeep
suffered damages on its rear and front
paints, and the truck sustained
scratches at the wooden portion of its
rear. The body of the old man who
was later Identified as Isidoro Casino
was immediately brought to the Jose
Reyes Memorial Hospital but was
(pronounced) dead on arrival.2
An information for Homicide thru Reckless Imprudence
was filed against petitioner in view of the above
incident. She entered a plea of not guilty upon
arraignment and the case was set for trial.
Meanwhile, petitioner sought and was granted a re-
investigation by the City Fiscal, as a result of which the
trial fiscal moved for the dismissal of the case against
petitioner during the resumption of hearing on
September 7, 1972. The grounds cited therefor were
lack of interest on the part of the complaining witness
to prosecute the case as evidenced by an affidavit of
desistance submitted to the trial court and lack of
eyewitness to sustain the charge.
The motion to dismiss filed by the fiscal was never
resolved. The Court instead ordered the prosecution to
present its evidence. After the prosecution rested its
case, the petitioner filed a motion to dismiss the case
on the ground of insufficiency of evidence.
On December 22, 1972, the trial court rendered
judgment finding petitioner guilty beyond reasonable
doubt of the of- offense charged.
Petitioner appealed to the Court of Appeals in CA-G.R.
No. 14472-CR. On May 3, 1976, the Court of Appeals
rendered a decision, the dispositive portion of which
reads as follows:
Wherefore, as modified, the accused
Hedy Gan is guilty beyond reasonable
doubt of the crime of homicide thru
simple imprudence and, pursuant to
paragraph 2, Article 365 of the Revised
Penal Code, she is hereby sentenced
to the indeterminate penalty of three
(3) months and eleven (11) days
of arresto mayor and to indemnify the
heirs of Isidoro Casino in the sum of
Twelve Thousand Pesos (Pl2,000.00)
without, however, any subsidiary
imprisonment in case of insolvency,
and to pay the costs. 3
Petitioner now appeals to this Court on the following
assignments of errors:
I
The Court of Appeals erred in holding
that when the petitioner saw a car
travelling directly towards her, she
should have stepped on the brakes
immediately or in swerving her vehicle
to the right should have also stepped
on the brakes or lessened her speed,
to avoid the death of a pedestrian.
II
The Court of Appeals erred in
convicting the petitioner of the crime
of Homicide thru Simple Imprudence.
III
The Court of Appeals erred in
adjudging the petitioner liable to
indemnify the deceased in the sum of
P12,000.00.4
We reverse.
The test for determining whether or not a person is
negligent in doing an act whereby injury or damage
results to the person or property of another is this:
Would a prudent man in the position of the person to
whom negligence is attributed foresee harm to the
person injured as a reasonable consequence of the
course about to be pursued? If so, the law imposes the
duty oil the doer to take precaution against its
mischievous results and the failure to do so constitutes
negligence. 5
A corollary rule is what is known in the law as the
emergency rule. "Under that rule, one who suddenly
finds himself in a place of danger, and is required to act
without time to consider the best means that may be
adopted to avoid the impending danger, is not guilty of
negligence, if he fails to adopt what subsequently and
upon reflection may appear to have been a better
method, unless the emergency in which he finds himself
is brought about by his own negligence." 6
Applying the above test to the case at bar, we find the
petitioner not guilty of the crime of Simple Imprudence
resulting in Homicide.
The appellate court in finding the petitioner guilty said:
The accused should have stepped on
the brakes when she saw the car going
in the opposite direction followed by
another which overtook the first by
 passing towards its left. She should not
only have swerved the car she was
driving to the right but should have
also tried to stop or lessen her speed
so that she would not bump into the
pedestrian who was crossing at the
time but also the jeepney which was
then parked along the street. 7
The course of action suggested by the appellate court
would seem reasonable were it not for the fact that
such suggestion did not take into account the amount of
time afforded petitioner to react to the situation she
was in. For it is undeniable that the suggested course of
action presupposes sufficient time for appellant to
analyze the situation confronting her and to ponder on
which of the different courses of action would result in
the least possible harm to herself and to others.
Due to the lack of eyewitnesses, no evidence was
presented by the prosecution with respect to the
relative distances of petitioner to the parked jeepney
and the oncoming overtaking vehicle that would tend to
prove that petitioner did have sufficient time to reflect
on the consequences of her instant decision to swerve
her car to the light without stepping on her brakes. In
fact, the evidence presented by the prosecution on this
point is the petitioner's statement to the
police 8 stating::
And masasabi ko lang ho umiwas ho
ako sa isang sasakyan
na biglang nagovertake sa sasakyan na
aking kasalubong kung kaya ay aking
kinabig sa kanan ang akin kotse subalit
siya naman biglangpagtawid ng tao o
victim at hindi ko na ho naiwasan at
ako ay wala ng magawa . Iyan ho ang
buong pangyayari nang nasabing
aksidente.9 (Emphasis supplied)
The prosecution having presented this exhibit as its own
evidence, we cannot but deem its veracity to have been
admitted by it. Thus, under the circumstances narrated
by petitioner, we find that the appellate court is asking
too much from a mere mortal like the petitioner who in
the blink of an eye had to exercise her best judgment to
extricate herself from a difficult and dangerous
situation caused by the driver of the overtaking vehicle.
Petitioner certainly could not be expected to act with
all the coolness of a person under normal
conditions. 10 The danger confronting petitioner was real
and imminent, threatening her very existence. She had
no opportunity for rational thinking but only enough
time to heed the very powerfull instinct of self-
preservation.
Also, the respondent court itself pronounced that the
petitioner was driving her car within the legal limits. We
therefore rule that the "emergency rule" enunciated
above applies with full force to the case at bar and
consequently absolve petitioner from any criminal
negligence in connection with the incident under
consideration.
We further set aside the award of damages to the heirs
of the victim, who by executing a release of the claim
due them, had effectively and clearly waived their right
thereto.
WHEREFORE, judgment is hereby rendered acquitting
petitioner HEDY GAN y YU of the crime of Homicide thru
Simple Imprudence. She is no longer liable for the
P12,000.00 civil indemnity awarded by the appellate
court to the heirs of the victim.
SO ORDERED.
G.R. No. L-74324 November 17, 1988
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FERNANDO PUGAY y BALCITA, & BENJAMIN SAMSON y
MAGDALENA, accused-appellants.
The Solicitor General for plaintiff-appellee.
Citizens Legal Assistance Office for accused-appellants.
MEDIALDEA, J.:
For the death of Bayani Miranda, a retardate,
FERNANDO PUGAY y BALCITA and BENJAMIN SAMSON y
MAGDALENA were charged with the crime of MURDER in
Criminal Case No. L-175-82 of the Court of First Instance
(now Regional Trial Court) of Cavite, under an
information which reads as follows:
That on or about May 19, 1982 at the town plaza of the
Municipality of Rosario, Province of Cavite, Philippines,
and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and
mutually helping and assisting one another, with
treachery and evident premeditation, taking advantage
of their superior strength, and with the decided purpose
to kill, poured gasoline, a combustible liquid to the body
of Bayani Miranda and with the use of fire did then and
there, wilfully, unlawfully and feloniously, burn the
whole body of said Bayani Miranda which caused his
subsequent death, to the damage and prejudice of the
heirs of the aforenamed Bayani Miranda.
That the crime was committed with the qualifying
circumstance of treachery and the aggravating
circumstances of evident premeditation and superior
strength, and the means employed was to weaken the
defense; that the wrong done in the commission of the
crime was deliberately augmented by causing another
wrong, that is the burning of the body of Bayani
Miranda.
CONTRARY TO LAW (p. 1, Records).
Upon being arraigned, both accused pleaded not guilty
to the offense charged. After trial, the trial court
rendered a decision finding both accused guilty on the
crime of murder but crediting in favor of the accused
Pugay the mitigating circumstance of lack of intention
to commit so grave a wrong, the dispositive portion of
which reads as follows:
WHEREFORE, the accused Fernando Pugay y Balcita and
Benjamin Samson y Magdalena are pronounced guilty
beyond reasonable doubt as principals by direct
participation of the crime of murder for the death of
Bayani Miranda, and appreciating the aforestated
mitigating circumstance in favor of Pugay, he is
sentenced to a prison term ranging from twelve (12)
years of prision mayor, as minimum, to twenty (20)
years of reclusion temporal, as maximum, and Samson
to suffer the penalty of reclusion perpetua together
with the accessories of the law for both of them. The
accused are solidarily held liable to indemnify the heirs
of the victim in the amount of P13,940.00 plus moral
damages of P10,000.00 and exemplary damages of
P5,000.00.
Let the preventive imprisonment of Pugay be deducted
from the principal penalty.
Cost against both accused.
SO ORDERED (p. 248, Records).
Not satisfied with the decision, both accused interposed
the present appeal and assigned the following errors
committed by the court a quo:
1. THE COURT A QUO ERRED IN UTILIZING THE
STATEMENTS OF ACCUSED-APPELLANTS IN ITS
APPRECIATION OF FACTS DESPITE ITS ADMISSION THAT
THE ACCUSED-APPELLANTS WERE NOT ASSISTED BY A
COUNSEL DURING THE CUSTODIAL INVESTIGATION.
2. THE COURT A QUO ERRED IN NOT FINDING THAT THE
SUPPRESSION BY THE PROSECUTION OF SOME EVIDENCE
IS FATAL TO ITS CASE.
3. THE COURT A QUO ERRED IN LENDING CREDENCE TO
THE INCREDIBLE TESTIMONY OF EDUARDO GABION WHO
WAS ONE OF THE MANY SUSPECTS ARRESTED BY THE
POLICE (Accused-appellants' Brief, p. 48, Rollo).
The antecedent facts are as follows:
The deceased Miranda, a 25-year old retardate, and the
accused Pugay were friends. Miranda used to run
errands for Pugay and at times they slept together. On
the evening of May 19, 1982, a town fiesta fair was held
in the public plaza of Rosario, Cavite. There were
different kinds of ride and one was a ferris wheel.
Sometime after midnight of the same date, Eduardo
Gabion was sitting in the ferris wheel and reading a
comic book with his friend Henry. Later, the accused
Pugay and Samson with several companions arrived.
These persons appeared to be drunk as they were all
happy and noisy. As the group saw the deceased walking
nearby, they started making fun of him. They made the
deceased dance by tickling him with a piece of wood.
Not content with what they were doing with the
deceased, the accused Pugay suddenly took a can of
gasoline from under the engine of the ferns wheel and
poured its contents on the body of the former. Gabion
told Pugay not to do so while the latter was already in
the process of pouring the gasoline. Then, the accused
Samson set Miranda on fire making a human torch out of
him.
The ferris wheel operator later arrived and doused with
water the burning body of the deceased. Some people
around also poured sand on the burning body and others
wrapped the same with rags to extinguish the flame.
The body of the deceased was still aflame when police
officer Rolando Silangcruz and other police officers of
the Rosario Police Force arrived at the scene of the
incident. Upon inquiring as to who were responsible for
the dastardly act, the persons around spontaneously
pointed to Pugay and Samson as the authors thereof.
The deceased was later rushed to the Grace Hospital for
treatment. In the meantime, the police officers brought
Gabion, the two accused and five other persons to the
Rosario municipal building for interrogation. Police
officer Reynaldo Canlas took the written statements of
Gabion and the two accused, after which Gabion was
released. The two accused remained in custody.
After a careful review of the records, We find the
grounds relied upon by the accused-appellants for the
reversal of the decision of the court a quo to be without
merit.
It bears emphasis that barely a few hours after the
incident, accused-appellants gave their written
statements to the police. The accused Pugay admitted
in his statement, Exhibit F, that he poured a can of
gasoline on the deceased believing that the contents
thereof was water and then the accused Samson set the
deceased on fire. The accused Samson, on the other
hand, alleged in his statement that he saw Pugay pour
gasoline on Miranda but did not see the person who set
him on fire. Worthy of note is the fact that both
statements did not impute any participation of
eyewitness Gabion in the commission of the offense.
While testifying on their defense, the accused-
appellants repudiated their written statements alleging
that they were extracted by force. They claimed that
the police maltreated them into admitting authorship of
the crime. They also engaged in a concerted effort to
lay the blame on Gabion for the commission of the
offense.
Thus, while it is true that the written statements of the
accused-appellants were mentioned and discussed in the
decision of the court a quo, the contents thereof were
not utilized as the sole basis for the findings of facts in
the decision rendered. The said court categorically
stated that "even without Exhibits 'F' and 'G', there is
still Gabion's straightforward, positive and convincing
testimony which remains unaffected by the
uncorroborated, self-serving and unrealiable testimonies
of Pugay and Samson" (p. 247, Records).
Accused-appellants next assert that the prosecution
suppressed the testimonies of other eyewitnesses to the
incident. They claim that despite the fact that there
were other persons investigated by the police, only
Gabion was presented as an eyewitness during the trial
of the case. They argue that the deliberate non-
presentation of these persons raises the presumption
that their testimonies would be adverse to the
prosecution.
There is no dispute that there were other persons who
witnessed the commission of the crime. In fact there
appears on record (pp. 16-17, Records) the written
statements of one Abelardo Reyes and one Monico
Alimorong alleging the same facts and imputing the
respective acts of pouring of gasoline and setting the
deceased on fire to the accused-appellants as testified
to by Gabion in open court. They were listed as
prosecution witnesses in the information filed.
Considering that their testimonies would be merely
corroborative, their non-presentation does not give rise
to the presumption that evidence wilfully suppressed
would be adverse if produced. This presumption does
not apply to the suppression of merely corroborative
evidence (U.S. vs. Dinola, 37 Phil.
797).<äre||anº•1àw> Besides, the matter as to whom to
utilize as witness is for the prosecution to decide.
Accused-appellants also attack the credibility of the
eyewitness Gabion alleging that not only was the latter
requested by the mother of the deceased to testify for
the prosecution in exchange for his absolution from
liability but also because his testimony that he was
reading a comic book during an unusual event is
contrary to human behavior and experience.
Gabion testified that it was his uncle and not the
mother of the deceased who asked him to testify and
state the truth about the incident. The mother of the
deceased likewise testified that she never talked to
Gabion and that she saw the latter for the first time
when the instant case was tried. Besides, the accused
Pugay admitted that Gabion was his friend and both
Pugay and the other accused Samson testified that they
had no previous misunderstanding with Gabion. Clearly,
Gabion had no reason to testify falsely against them.
In support of their claim that the testimony of Gabion to
the effect that he saw Pugay pour gasoline on the
deceased and then Samson set him on fire is incredible,
the accused-appellants quote Gabion's testimony on
cross-examination that, after telling Pugay not to pour
gasoline on the deceased, he (Gabion) resumed reading
comics; and that it was only when the victim's body was
on fire that he noticed a commotion.
However, explaining this testimony on re-direct
examination, Gabion stated:
Q. Mr. Gabion, you told the Court on cross-examination
that you were reading comics when you saw Pugay
poured gasoline unto Bayani Miranda and lighted by
Samson. How could you possibly see that incident while
you were reading comics?
A. I put down the comics which I am reading and I saw
what they were doing.
Q. According to you also before Bayani was poured with
gasoline and lighted and burned later you had a talk
with Pugay, is that correct?
A. When he was pouring gasoline on Bayani Miranda I
was trying to prevent him from doing so.
Q. We want to clarify. According to you a while ago you
had a talk with Pugay and as a matter of fact, you told
him not to pour gasoline. That is what I want to know
from you, if that is true?
A. Yes, sir.
Q. Aside from Bayani being tickled with a stick on his
ass, do you mean to say you come to know that Pugay
will pour gasoline unto him?
A. I do not know that would be that incident.
Q. Why did you as(k) Pugay in the first place not to pour
gasoline before he did that actually?
A. Because I pity Bayani, sir.
Q. When you saw Pugay tickling Bayani with a stick on
his ass you tried according to you to ask him not to and
then later you said you asked not to pour gasoline. Did
Pugay tell you he was going to pour gasoline on Bayani?
A. I was not told, sir.
Q. Did you come to know..... how did you come to know
he was going to pour gasoline that is why you prevent
him?
A. Because he was holding on a container of gasoline. I
thought it was water but it was gasoline.
Q. It is clear that while Pugay was tickling Bayani with a
stick on his ass, he later got hold of a can of gasoline, is
that correct?
A. Yes, sir.
Q. And when he pick up the can of gasoline, was that
the time you told him not to pour gasoline when he
merely pick up the can of gasoline.
A. I saw him pouring the gasoline on the body of Joe.
Q. So, it is clear when you told Pugay not to pour
gasoline he was already in the process of pouring
gasoline on the body of Bayani?
A. Yes, sir (Tsn, July 30, 1983, pp. 32-33).
It is thus clear that prior to the incident in question,
Gabion was reading a comic book; that Gabion stopped
reading when the group of Pugay started to make fun of
the deceased; that Gabion saw Pugay get the can of
gasoline from under the engine of the ferris wheel; that
it was while Pugay was in the process of pouring the
gasoline on the body of the deceased when Gabion
warned him not to do so; and that Gabion later saw
Samson set the deceased on fire.
However, there is nothing in the records showing that
there was previous conspiracy or unity of criminal
purpose and intention between the two accused-
appellants immediately before the commission of the
crime. There was no animosity between the deceased
and the accused Pugay or Samson. Their meeting at the
scene of the incident was accidental. It is also clear that
the accused Pugay and his group merely wanted to make
fun of the deceased. Hence, the respective criminal
responsibility of Pugay and Samson arising from
different acts directed against the deceased is
individual and not collective, and each of them is liable
only for the act committed by him (U.S. vs. Magcomot,
et. al. 13, Phil. 386; U.S. vs. Abiog, et. al. 37 Phil.
1371).
The next question to be determined is the criminal
responsibility of the accused Pugay. Having taken the
can from under the engine of the ferris wheel and
holding it before pouring its contents on the body of the
deceased, this accused knew that the can contained
gasoline. The stinging smell of this flammable liquid
could not have escaped his notice even before pouring
the same. Clearly, he failed to exercise all the diligence
necessary to avoid every undesirable consequence
arising from any act that may be committed by his
companions who at the time were making fun of the
deceased. We agree with the Solicitor General that the
accused is only guilty of homicide through reckless
imprudence defined in Article 365 of the Revised Penal
Code, as amended. In U.S. vs. Maleza, et. al. 14 Phil.
468, 470, this Court ruled as follows:
A man must use common sense and exercise due
reflection in all his acts; it is his duty to be cautious,
careful, and prudent, if not from instinct, then through
fear of incurring punishment. He is responsible for such
results as anyone might foresee and for acts which no
one would have performed except through culpable
abandon. Otherwise his own person, rights and property,
all those of his fellow-beings, would ever be exposed to
all manner of danger and injury.
The proper penalty that the accused Pugay must suffer
is an indeterminate one ranging from four (4) months
ofarresto mayor, as minimum, to four (4) years and two
(2) months of prision correccional, as maximum. With
respect to the accused Samson, the Solicitor General in
his brief contends that "his conviction of murder, is
proper considering that his act in setting the deceased
on fire knowing that gasoline had just been poured on
him is characterized by treachery as the victim was left
completely helpless to defend and protect himself
against such an outrage" (p. 57, Rollo). We do not
agree.
There is entire absence of proof in the record that the
accused Samson had some reason to kill the deceased
before the incident. On the contrary, there is adequate
evidence showing that his act was merely a part of their
fun-making that evening. For the circumstance of
treachery to exist, the attack must be deliberate and
the culprit employed means, methods, or forms in the
execution thereof which tend directly and specially to
insure its execution, without risk to himself arising from
any defense which the offended party might make.
There can be no doubt that the accused Samson knew
very well that the liquid poured on the body of the
deceased was gasoline and a flammable substance for
he would not have committed the act of setting the
latter on fire if it were otherwise. Giving him the
benefit of doubt, it call be conceded that as part of
their fun-making he merely intended to set the
deceased's clothes on fire. His act, however, does not
relieve him of criminal responsibility. Burning the
clothes of the victim would cause at the very least some
kind of physical injuries on his person, a felony defined
in the Revised Penal Code. If his act resulted into a
graver offense, as what took place in the instant case,
he must be held responsible therefor. Article 4 of the
aforesaid code provides, inter alia, 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.
As no sufficient evidence appears in the record
establishing any qualifying circumstances, the accused
Samson is only guilty of the crime of homicide defined
and penalized in Article 249 of the Revised Penal Code,
as amended. We are disposed to credit in his favor the
ordinary mitigating circumstance of no intention to
commit so grave a wrong as that committed as there is
evidence of a fact from which such conclusion can be
drawn. The eyewitness Gabion testified that the
accused Pugay and Samson were stunned when they
noticed the deceased burning (Tsn, June 1, 1983, pp.
16-17).<äre||anº•1àw>
The proper penalty that the accused Samson must suffer
is an indeterminate one ranging from eight (8) years
ofprision mayor, as minimum, to fourteen (14) years
of reclusion temporal, as maximum.
The lower court held the accused solidarily liable for
P13,940.00, the amount spent by Miranda's parents for
his hospitalization, wake and interment. The indemnity
for death is P30,000.00. Hence, the indemnity to the
heirs of the deceased Miranda is increased to
P43,940.00.
Both accused shall be jointly and severally liable for the
aforesaid amount plus the P10,000.00 as moral damages
and P5,000.00 as exemplary damages as found by the
court a quo.
Accordingly, the judgment is affirmed with the
modifications above-indicated. Costs against the
accused-appellants.
SO ORDERED.