PEOPLE v.

OANIS Facts: Chief of Police Oanis and his co-accused Corporal Galanta were under instructions to arrest one Balagtas, a notorious criminal and escaped convict, and if overpowered, to get hi dead or alive. Proceeding to the suspected house, they went into a room and on seeing a man sleeping with his back toward the door, simultaneously fired at him with their revolvers, without first making any reasonable inquiry as to his identity. The victim turned out to be an innocent man, Tecson, and not the wanted criminal.. Held: Both accused are guilty of murder Ratio: Even if it were true that the victim was the notorious criminal, the accused would not be justified in killing him while the latter was sleeping. In apprehending even the most notorious criminal, the law does not permit the captor to kill him. It is only when the fugitive from justice is determined to fight the officers of law who are trying to capture him that killing him would be justified.

PEOPLE v. NANQUIL A cart and a carabao belonging to Juan Rosas had disappeared. To recover them and find the wrongdoer he requested the help of the Constabulary. A sergeant and two soldiers were then commissioned to make investigation. During their investigation these Constabulary men called Severino Ramiscal, and one of them, surnamed Masiglat, examined him, and not having obtained from him any clear information, he turned him over to his companion, the other soldier, Atanacio Nanquil, for examination by the latter. The sergeant who commanded that patrol had remained in house in a neighborhood, as he was feeling ill. The soldier, Atanasio Nanquil was examining Severino Ramiscal on a road, the other soldier, Masiglat, being about 20 brazas form them, when all of a sudden, Masiglat heard a blow and saw Severino Ramiscal fall to the ground he had been struck by the soldier, Atanasio Nanquil with his gun, as a consequence of which, Severino Ramiscal died after a few moments.

Atansio Nanquil was prosecuted for the crime of homicide and sentence by the trial court to fourteen years, eight months and one day of reclusion temporal, with the accessory penalties, to indemnify the heirs of the deceased in the sum of one thousand P1,000 and to pay the costs.

From the judgement the defendant, Atanasio Nanquil, has appealed, his counsel alleging that the court below erred: (a) In giving more credit to the witnesses for the prosecution that those for the defense; (b) in finding that the deceased was maltreated by the defendant and his companion, Masiglat, on the night of the commission of the crime; (c) in holding that the crime was simple homicide and in imposing the aforesaid penalty; (d) in finding that the crime was attended with the aggravating circumstance of nocturnity; (e) in declaring that it was only at the trial of the case when the accused alleged having acted in self-defense; and ( f ) in not finding the exempting circumstance of self-defense to have been proven.

Anent the first error, it should be noted that the appellant admits being the author of the homicide. It was, therefore, incumbent upon him to establish by sufficient evidence his allegation of self-defense, with all the elements constituting it. Even supposing that the court below had not attached more credit to the testimony of the witnesses for the prosecution, even if the evidence both for the prosecution and the defense had been given equal weight on the controverted point, namely, that of the self-defense alleged by the appellant, such an allegation cannot be held proven, as it must be established by positive and sufficient proof. But the fact is that there exist sufficient reasons for giving more credit to the witnesses for the prosecution than those of the defense, who, being members of the same organization to which the accused belongs, were naturally interested in his success in the present case, as most of them have sincerely admitted it in their testimony. And it not having been proven, that the witnesses for the prosecution had any special interest against the appellant, after weighing the evidence of both parties, we find no ground for holding that the first error assigned by the defense was committed.

As to the second error assigned, it is of no importance to determine in this case whether or not the soldier Masiglat, who is not accused in these proceedings, also maltreated the deceased. The fact is that the accuse did, as is admitted by him to the extent of having caused the death of the unfortunate Severino Ramiscal.

Under the third assignment of error, the defense contends that the most that can be said to have been proven by the evidence of record is the crime of homicide through reckless imprudence. We find that the accused did not intend to commit so grave an evil as that which resulted, for such an intention is incompatible with the purpose he had then in view, which was that of obtaining a proof against the deceased if his declaration was a confession, or of using the deceased as a witness for the prosecution, if his testimony was a substantial revelation. But whether he had that intention or not, the fact is that he willfully maltreated the deceased, and such an act of willfully causing an evil is, as the Attorney-General very properly observes, incompatible with reckless imprudence.

The fourth error is made to consist in the fact of the trial court having taken into account the aggravating circumstance of nocturnity. We hold with the defense and the prosecution that such circumstance cannot be taken into account in the present case to aggravate the penalty. To our mind, the event took place in the nighttime due to the fact that the sergeant who commanded the patrol of which the appellant formed a part fell sick, and if nocturnity was deliberately sought at all, it was not in order to maltreat the deceased (which idea was not proven to have been conceived prior to the deceased's refusal to tell anything about the theft which was under investigation), but rather to take advantage of the secrecy of the night to render the investigation more effective.

With reference to the fifth error assigned, it is true that the witnesses for the defense have testified that, shortly after the event, the accused alleged having acted in self-defense, but a serious doubt arises from the record as to the truth of this statement of said witnesses, which doubt prevents us from finding this allegation of the defense to have been sufficiently established.

The last assignment of error contains the whole theory of the appellant. From what we have hereinbefore stated, it is seen that the defendant's allegation of self-defense cannot be held proven. It was not sufficiently shown that the deceased was the aggressor, which, on the to her hand, is highly improbable under the circumstances then attending his situation. There not having been, as we find that there was not, any unlawful aggression, the accused had nothing to defend himself against; wherefore we need not go into the question whether or not the means employed to repel the aggression, which had not been made, was reasonably necessary. Neither do we need determine whether or not the accused had sufficiently provoked the aggression, which was not sufficiently proven.

We find no sufficient reason from the record for holding the allegation of self-defense to have been established. We do not find that any aggravating circumstance has concurred in the commission of the crime, but we do find that there was present the aforesaid mitigating circumstance of the accused not having had the intention to cause the death of the deceased. For this reason the penalty of reclusion temporal must be imposed in its minimum degree.

Wherefore, the judgment appealed from is modified, and the appellant sentenced to twelve years and one day of reclusion temporal, to the accessory penalties provided by article 59 of the Penal Code, to indemnify the heirs of Severino Ramiscal in the amount of one thousand pesos (P1,000), and to pay the costs of both instances. So ordered.

PEOPLE v. SARA Appellant Bernardo Berning Sara was charged before the Regional Trial Court (RTC) of Iloilo City with Murder in an information dated March 7, 1988 reading:[1]

The undersigned Provincial Fiscal accuses BERNARDO SARA, [a]lias BERNING, of the crime of MURDER committed as follows: That on or about November 2, 1987, in the Municipality of Cabatuan, Province of Iloilo, Philippines and within the jurisdiction of this Court, the above-named accused, together with an unidentified person, conspiring and helping one another, armed with firearms of unknown caliber, with treachery and evident premeditation and deliberate intent and decided purpose to kill, did then and there willfully, unlawfully and feloniously shoot and hit one Paterno Morcillo on his chest which caused his death. CONTRARY TO LAW. Appellant was earlier charged for the same offense, along with Efren Robles, in a November 6, 1987 complaint.[2] In a December 17, 1987 Order, [3] however, Acting Municipal Circuit Trial Judge Simeonito A. Salarda of Cabatuan, Iloilo, who conducted the preliminary examination, found no probable cause to hale Robles into court. Upon arraignment[4] on July 6, 1988, appellant, assisted by his counsel, entered a plea of not guilty. From the evidence for the prosecution, the following version is established: At around 7:30 p.m. of November 2, 1987, while Paterno Morcillo (the victim) and his wife-prosecution witness Virginia Morcillo were sitting at their balcony situated at the left side of their one storey house[5] in Barangay Acao, Cabatuan, Iloilo, the victim revealed to her that on account of his accusation against appellant and Efren Robles for killing his chicken,[6] the two had threatened to kill him on November 1, 1987.[7] Allaying any anxiety of the victim, his wife told him not to be bothered as it was already the second of November, and he should be thankful for being alive.[8] Moments later, hearing the incessant barking of dogs, Virginia prodded the victim to transfer their carabao from the back portion of the house to the front.[9] Hearing that the victim, their father, was going to transfer the carabao, prosecution witnesses Felipe and Benjamin Morcillo curiously looked out of the window situated at the side of their house[10] to watch the transfer of the carabao.[11] Unknown to the victim who proceeded to the back of the house, appellant and one whom Felipe and Benjamin claim to be Efren Robles were squatting[12] beside a nearby coconut tree.[13] While the victim was at the right side of the house,[14] before he could reach the carabao, he was shot by appellant.[15] Soon after hearing the sound of a gunshot, Virginia heard her husband-the victim moaning.[16] Another shot was soon after fired by Efren Robles,[17] prompting Virginia to run downstairs where she saw her husband lying on the ground.[18] She then lifted him and placed him in her arms,[19] and as their children Felipe and Benjamin approached her, they told her Nay, it was Tay Berning who killed Tatay.[20] When she turned her attention back to her husband, he was already dead.[21] The postmortem examination conducted on the victim by Dr. Imelda P. Piz, resident physician at the Ramon Tabiana Memorial District Hospital in Cabatuan, Iloilo, showed that the victim died of cardiac tamponade secondary to rupture of the right ventricular heart and thoracic aorta due to multiple gunshot wounds on the chest.[22] The examination conducted by Zenaida Sinfuego, a forensic chemist for the Integrated National Police in Camp Delgado, Iloilo City, showed that the left and right hands of both appellant and Efren Robles were positive for gunpowder residue (nitrates) as reflected in Chemistry Report No. C-045-87.[23] Denying the accusation and proferring alibi, appellant claimed that on November 2, 1987, at around 7:00 p.m., he had dinner with his wife and children at their house in Barangay Acao, Cabatuan, Iloilo,[24] following which or at around 8:00 p.m., he went to sleep.[25] Appellants wife, Cleofas Sara, corroborated him.[26] Discrediting appellants denial and alibi in favor of the positive and categorical testimony of Felipe and Benjamin that they saw appellant squatting and holding a short firearm several meters away from the victim, Branch 27 of the Iloilo City RTC convicted appellant of Murder by decision[27] of October 17, 1991 the dispositive portion of which is quoted verbatim:[28]

WHEREFORE, in view of the foregoing, the court hereby sentences the accused BERNARDO SARA to suffer the penalty of imprisonment of Seventeen (17) years, Four (4) months and One (1) day of Reclusion Temporal as minimum to Twenty Five (25) years, Nine (9) months and Eleven (11) days to Reclusion Perpetua as maximum; Directing said accused to indemnify the heirs of the deceased Paterno Morcillo the amount of Thirty Thousand (P30,000.00) Pesos; To pay attorneys fees in the amount of P5,000.00; Coffin and burial and actual expenses in the amount of P11,000.00; And costs. On appeal to the Court of Appeals, appellant assailed the verdict of the trial court on four (4) grounds:[29] (a) the trial court erred in giving full faith and credence to the patently incredible, fabricated, unreliable, inconsistent if not contradictory testimonies of the prosecution witnesses; (b) the trial court erred in not disregarding the results of the paraffin test conducted on the person of the accused-appellant as the same was not conclusive; (c) the trial court erred in not giving evidentiary and exculpatory weight to the evidence adduced by the defenses; and (d) the trial court manifestly erred in rendering a verdict of conviction despite the fact that the guilt of accused-appellant was not proved beyond reasonable doubt. Finding no reversible error in the factual findings of the trial court, the Court of Appeals, by Decision of September 8, 1995,[30] affirmed the conviction of appellant but modified the penalty imposed to reclusion perpetua. The dispositive portion of the appellate courts decision reads, quoted verbatim:[31] WHEREFORE, the judgment appealed from is AFFIRMED with modifications as to penalty and civil indemnity. Accused-appellant Bernardo Sara is hereby sentenced to suffer the penalty of reclusion perpetua. The civil indemnity awarded to the heirs of deceased Paterno Morcillo is hereby increased to P50,000.00. (Emphasis, underscoring and italics in the original) In an August 30, 1999 Resolution,[32] the appellate court certified the case to this Court for review in accordance with Section 13, Rule 124, par. 2 of the Rules of Criminal Procedure. This Court afforded appellant the opportunity to file an additional brief[33] in which he assigns the following errors: [34] I. THE COURT OF APPEALS ERRED IN NOT DISCARDING THE PATENTLY INCONSISTENT, NAY CONFLICTING STATEMENTS OF THE PROSECUTION WITNESSES ANENT THE SUBJECT INCIDENT WHICH WERE TOTALLY IGNORED BY THE TRIAL COURT. GRANTING FOR THE SAKE OF ARGUMENT THAT THE ACCUSED-APPELLANT IS GUILTY, NONETHELESS, THE TRIAL COURT ERRED IN CONVICTING HIM OF MURDER SINCE THE QUALIFYING CIRCUMSTANCE OF TREACHERY IS WANTING, HENCE, THE PENALTY IMPOSED UPON HIM MUST BE ACCORDINGLY REDUCED.

II.

The resolution of the case hinges on (1) whether the evidence for the prosecution established the guilt of appellant beyond reasonable doubt; and (2) if in the affirmative, whether the proper penalty was correctly modified by the appellate court. In affirming the conviction of appellant, the appellate court relied, as did the trial court, mainly on the testimony of Felipe and Benjamin, particularly their positive identification of appellant. Appellant bewails, however, the brushing aside of his defense of alibi despite the existence, so he claims, of conflicting statements in the testimonies of the prosecution witnesses, he highlighting the following instances: Felipes testimony during cross-examination that he saw appellant and Efren Robles in the balcony of the victims house,[35] whereas on further cross-examination, he declared that he saw appellant and Robles at the tambi or back porch;[36] Felipes testimony that his sister Lianisa was inside the house during the incident but he did not know what she was then doing,[37] whereas in his sworn statement, Felipe stated that Lianisa was urinating at the tambi or back porch;[38] Felipes testimony that a short firearm was used in shooting his father,[39] whereas in his sworn statement he stated that he did not know the kind of firearm was used;[40] Felipes testimony that there was a grudge between appellant and his father,[41] whereas in his sworn statement he stated that he did not know of any reason or motive behind his fathers murder;[42] Benjamins testimony during cross-examination that he was lying down, preparing to go to sleep when he heard the dogs barking,[43] whereas on further cross-examination, he declared that he and Felipe were playing and teasing each other;[44] Benjamins testimony that he saw appellant at the side of a coconut tree when he shot the victim,[45] whereas in Felipes testimony, he declared that he saw appellant and Efren Robles in the balcony of their house;[46] Benjamins testimony that he did not know of any reason or motive for the killing of his father,[47] whereas in Felipes testimony, he stated that there was a grudge

between appellant and his deceased father; [48] Virginias testimony that she and the victim were in the balcony talking with each other when the dogs started barking,[49] whereas in Felipes[50] and Benjamins[51] testimonies they declared that she was inside the house; and Virginias testimony that Felipe and Benjamin told her that they saw another person aside from appellant but that they could not recognize him,[52] whereas both Felipe[53] and Benjamin[54] stated that Efren Robles was with appellant during the incident. The appeal is bereft of merit. Appellant was positively identified as the assailant by two credible eyewitnesses. The victims son Felipe testified. Both Felipe and Benjamin testified that there was ample illumination from the moon to enable them to see the face of their fathers assailant. That the light from the stars,[57] or the moon,[58] or flames from an oven,[59] or a wick lamp or gasera[60] can give ample illumination to enable a person to identify or recognize another, this Court has had occasions to appreciate. There was thus no possibility for both witnesses to be mistaken in identifying their fathers assailant, especially considering that they have known appellant, their neighbor, for a long time. There being no indication that Felipe and Benjamin were actuated by any improper motive to falsely testify against appellant, their relationship with the victim notwithstanding, there is no reason to doubt the veracity of their testimonies. Relationship could in fact even strengthen the witnesses credibility, it being unnatural for aggrieved relatives to falsely accuse someone other than the actual culprit, for their natural interest in securing the conviction of the guilty would deter them from implicating any other. [61] That appellants hands were found positive for gunpowder nitrates corroborates the evidence of his guilt.[62] With respect to the then 10-year old Felipes inconsistent testimony on where appellant was at the time of the incident, that could reasonably be attributed to his tender age and his failure to understand the questions of defense counsel.[63] For to young witnesses who, much more than adults, would naturally be gripped with tension due to the novelty of the experience of testifying before a court, ample margin of error and understanding must be accorded.[64] In any event, upon clarification by the trial court, it was sufficiently established that Felipe saw appellant and Robles outside of his house.[65] While, admittedly, there were contradictions between the prosecution witnesses testimonies in open court and their sworn statements, discrepancies do not necessarily impair their credibility, for affidavits, being taken ex parte, are almost always incomplete and often inaccurate[66] for lack of searching inquiries by the investigating officer[67] or due to partial suggestions,[68] and are thus generally considered to be inferior to the testimony given in open court. A Sinumpaang Salaysay or a sworn statement is merely a short narrative subscribed to by the complainant in question and answer form. Thus, it is only to be expected that it is not as exhaustive as ones testimony in open court. The contradictions, if any, may be explained by the fact that an affidavit can not possibly disclose the details in their entirety, and may inaccurately describe, without deponent detecting it, some of the occurrences narrated. Being taken ex-parte, an affidavit is almost always incomplete and often inaccurate, sometimes from partial suggestions, and sometimes from the want of suggestions and inquiries. It has thus been held that affidavits are generally subordinated in importance to open court declarations because the former are often executed when an affiants mental faculties are not in such a state as to afford her a fair opportunity of narrating in full the incident which has transpired. Further, 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 her.[69] As for the other alleged inconsistencies in the testimonies of the prosecution witnesses, they refer to minor and collateral matters, not to an essential element of the crime,[70] and do not have any bearing on the essential fact testified to, that is, the killing of the victim. Moreover, minor contradictions among several witnesses of a particular incident and aspect thereof which do not relate to the gravamen of the crime charged are to be expected in view of their differences in impressions, memory, vantage points and other related factors.[71] In fact, they bolster rather than weaken their credibility as they erase any suspicion that their testimonies have been rehearsed.[72] What is important is that both Felipe and Benjamin were consistent in positively identifying appellant as the person who shot their father. Appellants alibi thus fails vis--vis the positive and categorical assertion of the prosecution witnesses.[73] Such defense is worthless, considered with suspicion and always received with caution not only because it is inherently weak and unreliable but also because it is easily fabricated and concocted.[74] Being negative in nature and self-

serving, it cannot secure worthiness more than that placed upon the testimonies of prosecution witnesses who testify on clear and positive evidence.[75] At all events, for the defense of alibi to prosper, it is not enough to show that the accused was somewhere else when the crime was committed. He must further demonstrate that it was physically impossible for him to have been at the scene of the crime at the time of the commission thereof.[76] Appellant glaringly failed in this regard. For by his claim, he was at the time the crime was perpetrated at his residence which was only about 200 to 300 meters away from the locus criminis.[77] As for the presence of treachery in the killing, the Court of Appeals correctly appreciated the same. The essence of treachery is that the attack is deliberate and without warning done in a swift and unexpected manner of execution, affording the hapless and unsuspecting victim no chance to resist or escape.[78] In the case at bar, the victim was caught defenseless when appellant, who was squatting beside a tree, suddenly shot him as he was on his way to the back portion of his house to transfer a carabao. The attack being swift and unexpected, the victim who was unarmed could not have resisted. Whereas, on the other hand, appellant was not thereby exposed to any danger. Doubtless, appellant is guilty of murder. The crime was committed before the effectivity of Republic Act No. 7659. [79] At the time, Article 248 of the Revised Penal Code penalized murder with reclusion temporal in its maximum period to death. There being neither mitigating nor aggravating circumstance, reclusion perpetua, the medium period of the penalty, was correctly imposed by the Court of Appeals, pursuant to Article 64 (1) of the Revised Penal Code.[80] As to the civil aspect of the case, the Court of Appeals correctly too increased the award of indemnity to the heirs of the victim from P30,000.00 to P50,000.00 in line with prevailing jurisprudence, which award needs no proof other than the fact that a crime was committed resulting in the death of the victim and that the accused was responsible therefor.[81] As for the award of P11,000.00 representing [c]offin and burial and actual expenses, the same appears to have been based on the testimonial claim of the victims wife that the family incurred funeral expenses in the amount of P20,000.00.[82] No official receipts were, however, presented to substantiate the claim. Her testimony cannot thus be considered as competent proof and cannot replace the probative value of official receipts to justify the award of actual damages, for jurisprudence instructs that the same must be duly substantiated by receipts.[83] Moreover, Article 2199 of the Civil Code explicitly requires that, except as provided by law or stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. In other words, only substantiated and proven expenses, or those that appear to have been genuinely incurred in connection with the death, wake or burial of the victim will be recognized in court.[84] Nonetheless, where no sufficient proof of actual damages is presented in the trial court (or when the actual damages proven is less than P25,000.00), this Court generally awards the amount of P25,000.00 as temperate damages,[85] it being reasonable to presume that when death occurs, the family of the victim necessarily incurs expenses for the wake and funeral.[86] In the case at bar, however, the victims wife testified, as earlier noted, that the amount of P20,000.00 was incurred for funeral expenses. This Court thus awards temperate damages in the said amount.[87] Under Article 2206 of the Civil Code, the heirs of the victim are entitled to indemnity for loss of earning capacity. Ordinarily, documentary evidence is necessary for the purpose. By way of exception, testimonial evidence may suffice if the victim was either (1) self-employed, earning less than the minimum wage under current labor laws, and judicial notice may be taken of the fact that in the victims line of work, no documentary evidence is available; or (2) employed as a daily-wage worker earning less than the minimum wage under current labor laws.[88] In the case at bar, however, while the victims wife testified that the victim earned P200.00 every market day[89] as well as 120 sacks a year from cultivating a 2-hectare piece of land,[90] she did not indicate the number of market days in a year nor identify the crops which her husband harvested or give the value thereof. Indemnification for loss of earning capacity partakes of the nature of actual damages which must be duly proven[91] by competent proof and the best obtainable evidence thereof.[92] Finally, in accordance with Article 2230 of the Civil Code, the qualifying circumstance of treachery being present, exemplary damages in the amount of P25,000.00 must be awarded.[93] It is on account of the award of exemplary damages that the award of award attorneys fees in the amount of P5,000.00 is affirmed.[94]

WHEREFORE, the decision of the Court of Appeals, finding appellant BERNARDO SARA guilty beyond reasonable doubt of Murder and sentencing him to suffer the penalty of reclusion perpetua is hereby AFFIRMED. The civil aspect of the case is MODIFIED to read as follows: Appellant is hereby ORDERED to pay the heirs of Paterno Morcillo the amounts of P50,000.00 as civil indemnity for his death, P20,000.00 as temperate damages, P25,000.00 as exemplary damages, and P5,000.00 as attorneys fees. PEOPLE v. MENDOZA Facts: 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. 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. Issue: Whether or not the accused committed attempted rape or acts of lasciviousness. Held: 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. 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. 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. 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, accused-appellant, taking advantage of the cover of darkness and of the absence of his wife, removed her (private complainants) 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. 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. 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.

PEOPLE v. PIAMONTE This is an appeal from the decision,[1] dated December 26, 1989, of the Regional Trial Court (Branch 47) in Puerto Princesa City, Palawan, finding accused-appellant Antonio Piamonte guilty of murder and sentencing him to reclusion perpetua and to pay the heirs of the victim Benjamin Sarmiento P30,000.00 as civil indemnity and the costs. The information alleged that on or about the 17th day of September, 1988, at Barangay Pagkakaisa, City of Puerto Princesa, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery and evident premeditation, and while armed with a bladed weapon, did then and there wilfully, unlawfully and feloniously assault, attack and stab therewith one BENJAMIN SARMIENTO, hitting him on the different parts of his body, thereby inflicting upon him multiple stab wounds, which were the direct and immediate cause of his death. CONTRARY TO LAW. Two alleged eyewitnesses and the doctor who performed the autopsy on the deceased were presented by the prosecution in support of its case.

First to testify was David Morte, first cousin of the deceased Benjamin Sarmiento.[3] Morte testified that he is a resident of Barangay Pagkakaisa, Cuyito, Puerto Princesa City; that in the evening of September 17, 1988, he asked the deceased to accompany him to the latters cumpadre, Conrado Aryo, who owned a fishing boat; that between 8:30 and 9:00 that evening, while he, the deceased, and a certain Antonio were on their way to the house of Aryo, accused-appellant Antonio Piamonte suddenly appeared and attacked the deceased, stabbing him on the chest with a one-foot knife; that they were so shocked by what they saw that he and Antonio ran; that although it was somewhat dark, he was able to see the stabbing because of the light coming from the place they were going to; that he had known both accused-appellant and the deceased for a long time; that accused-appellant was alone when he stabbed the deceased; and that he did not know of any quarrel between the deceased and accusedappellant.[4] On cross-examination, Morte said that his brother, Elino Morte, had been convicted of killing the brother of accused-appellant, although he claimed he bore accused-appellant and the latters family no ill will5] virtualawlibrary On re-direct examination, Morte said that at the time of the incident, he and his companions were on their way to the house of the deceaseds cumpadre, Conrado Aryo, when accused-appellant suddenly appeared on the bridge coming from the house.[6] On re-cross,[7] Morte testified that when he and his companions saw accused-appellant for the first time, the latter was not yet actually holding the knife.[8] virtualawlibrary The other prosecution witness, Antonio Nito, claimed that in the evening of September 17, 1988, he and David Morte went to see the deceased to ask him to recommend them to Aryo for a job as a pumpboat operator; that they were not able to reach Aryos house because on their way Benjamin Sarmiento was stabbed; that while he saw the assailant, he did not recognize him because it was dark and the deceased did not call out the name of accusedappellant; and that in his sworn statement (Exh. A)[9] he identified accused-appellant as the assailant based on the shape of his body.[10] virtualawlibrary On cross-examination, Antonio Nito testified that he did not report the incident to the police [b]ecause I have my work to do [food processing of marine products]; that the stabbing took place at an alley between two houses with no light from the houses; and that he did not know accused-appellants motive in stabbing the deceased.[11] virtualawlibrary Dr. Rudolph Baladad, Medical Officer II of the Puerto Princesa City Health Department, also testified. He said he performed an autopsy on the deceased on September 18, 1988 and found that he had suffered two fatal stab wounds, one of which penetrated the lungs and the other, the spleen; and that in his opinion, both wounds were inflicted by the assailant while facing the deceased. He explained that there was only one knife used judging from the fact that the two wounds had the same measurement and clean edges and that the knife must be a doublebladed one because the edges of the wounds were cleancut, and that it must be two inches wide, and at least more than five inches long because it was able to penetrate the abdominal wall and anterior chest.[12] The autopsy report (Exh. B) prepared by him described the fatal wounds, thus: virtualawlibrary POST MORTEM FINDINGSvirtualawlibrary 1. STAB WOUND, Clean-Cut Edges Measuring, about 2 inches located over the 4th intercostal space right, anterior chest wall, parallel to right nipple.virtualawlibrary 2. STAB WOUND, Measuring about 2 inches, located over the left abdomen, between the right hypochondriac region and umbilicus.[13] virtualawlibrary Dr. Baladad issued a death certificate (Exh. C) stating the cause of death to be Shock 2o to Hemorrhage due to Multiple Stab wounds.[14] virtualawlibrary Accused-appellant Antonio Piamonte testified in his defense. He admitted stabbing the deceased twice but claimed that it was the deceased Benjamin Sarmiento and his two companions who attacked him and he merely acted in self-defense after wresting the knife from the deceased. Accused-appellant claimed that at around six in the evening of September 17, 1988, while he was home in Barangay Pagkakaisa making arrows, Benjamin Sarmiento, David Morte, and another man whose name he did not know, came and beat him up; that the three were drunk; that the deceased warned him, Hindi kita patatagalin, papatayin kita (I wont let you live long, Ill kill you); and that the three then left, but, at around nine that evening, they returned and called on him to come out; that as he refused, they dragged him out of his house and beat him, while telling him that he had only until midnight to live. Then, according to accused-appellant, the deceased drew his knife and lunged at him, but he was able to avoid the thrust and seize the knife from the deceased, and to stab the latter. Accused-appellant said he was not able to surrender the knife to the police because he threw it away. As he felt dizzy, he did not notice where he had thrown

it and that he could no longer find [the knife] because there are many seaweeds in the sea where [he] threw it.[15] Accused-appellant admitted that bad blood existed between his family and that of the deceased as a result of the killing of his (accused-appellants) brother by David Mortes brother, a first cousin of the deceased. He claimed he was not able to file a case against David Morte for the alleged attack on him because he had been put in jail. virtualawlibrary On cross-examination, accused-appellant testified that David Morte, though shorter, was bigger than he, and that the third man was also bigger; that when the three men first attacked him, Benjamin Sarmiento did not have a knife but when they returned, Sarmiento already had a knife which he tried to use against him (accused-appellant). Accused-appellant claimed he was able to get the knife from the deceased and that he only used it against the latter because he had already been badly hurt. Accused-appellant admitted, however, that he did not report the incident to the authorities or tell the inquest fiscal that he killed the deceased in self-defense. He said he did not run when the deceased and his companions returned because [t]hats already my house.[16] virtualawlibrary Accused-appellants testimony was corroborated by Juanito Araneta, whose house is just two arm lengths from that of the deceased.[17] He testified that in the evening of September 17, 1988, just after supper, he heard a commotion outside his house; that when he checked, he saw accused-appellant being attacked by the deceased, David Morte, and another person whom he did not know but whose face was familiar; that he shouted at the assailants to stop but was told to shut up and mind his own business (Huwag kang makialam dito); that the three then went away only to come back later and call on accused-appellant to come out; that when accused-appellant came out from his house he was again beaten up; that he then saw the deceased pull out a five-inch knife, but accused-appellant was able to wrest it from the deceased; that after seeing accused-appellant get the knife, he (the witness) was not interested anymore in seeing what would happen next and so he went inside his house and slept; that the place where the incident took place was a walk or a bridge; and that while there were people in the neighborhood, they were asleep and it was only he who saw the incident.[18] virtualawlibrary On cross-examination, Juanito Araneta said that the first attack preceded the stabbing incident by three hours; that each of the men who assaulted accused-appellant was bigger than he; that despite this and the fact that one was holding accused-appellant while the others were boxing him, accused-appellant was nevertheless able to wrest the knife from the deceased; that he (Juanito Araneta) volunteered to testify in accused-appellants behalf; and that accused-appellant was badly hurt in the first attack.[19] virtualawlibrary Dr. Baladad opined that the injuries could have been caused by a fall, by a mauling incident, or by a vehicular accident; that he noticed no external injuries, hematoma, successive blows on the body of accused-appellant but just pain and tenderness and abrasion or a scratch; that the said abrasion could be caused by one or two persons; and that accused-appellant was not limping when he came to see him.[21] virtualawlibrary On the basis of the foregoing testimonies, the trial court held that, initially, the deceased and his companions were the aggressors. One of them subjected him to fist blows, as shown by an abrasion on his neck and tenderness in other parts of his body. In retaliation for what had been done to him, he waited for the group to pass by his house again. When he saw them three hours later, accused-appellant attacked Benjamin Sarmiento with a knife. Hence, the trial court found accused-appellant guilty of murder qualified by evident premeditation and treachery. Its analysis of the testimonies of the witnesses is as follows: virtualawlibrary It appears to the Court that there is more truth to the version that the accused was first boxed or mauled by the victim or by one of his companions at about 6:00 oclock that afternoon of September 17, 1998, and that explains why he suffered mere abrasions in his neck which, according to Dr. Rudolph V. Baladad, Sr. could have been caused by falling, or he could have been mauled by a person. Three persons mauling him would have been too much; he could have suffered extensive and more serious bodily injuries than mere abrasions. The defense exaggerated and blew up his defense clearly beyond believable proportion.virtualawlibrary To the mind of the Court, the accused had entertained ill-feeling and grudge against the victim when the latter assaulted him earlier that day, or at about 6:00 oclock in the afternoon of September 17, 1988, evidenced by his Medical Certificate (Exhibits 1 and 1-A) which conclusively proves that he was indeed hurt. With the injury and wounded feelings he nursed, he decided and planned to retaliate, so he armed himself with a sharp-bladed weapon and prepared for an occasion where he could vent his ire and hit back at the victim, for he could not tackle him in a frontal or face-to-face fist fight. Since he has an impelling motive to revenge and as premeditated and perfected laid out by him, which is in accord with the testimonies of the prosecution eyewitnesses, the accused waited for the victim to pass by his house that same night or any day thereafter and when the opportunity presented itself, he grabbed it by treacherously, deliberately, suddenly and unexpectedly stabbing the victim in his chest and abdomen. He hit the delicate parts of the victims body to insure that he gets killed without being able to defend him

from the assault. The accused really intended to kill the victim as shown by the deadly weapon he used, the fatal area he hit and the repetition by which he struck him.[22] virtualawlibrary Accordingly, the trial court held: virtualawlibrary WHEREFORE, viewed from the foregoing facts, reasons and considerations and with the accuseds voluntary admission that he stabbed the victim, Benjamin Sarmiento in the manner and method hereinabove described that caused his death, the Court holds and finds the herein accused, Antonio Piamonte, guilty beyond reasonable doubt of the crime of Murder charged against him by the prosecution as defined and penalized under Article 248 of the Revised Penal Code, and hereby sentences him to suffer the penalty of RECLUSION PERPETUA: to pay the family or heirs of the victim civil indemnity amounting to P30,000.00; and to pay the costs.[23] virtualawlibrary Hence, this appeal. Accused-appellant contends: virtualawlibrary I. THE LOWER COURT ERRED IN NOT HOLDING THAT THE APPELLANT ACTED IN LAWFUL SELFDEFENSE.virtualawlibrary II. THE LOWER COURT ERRED IN DECLARING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER AND BY IMPOSING HIM TO SUFFER AN IMPRISONMENT OF RECLUSION PERPETUA.[24] virtualawlibrary Accused-appellants contentions are without merit. I. Having admitted killing the deceased, accused-appellant has the burden of proving that he acted in self-defense by showing (1) unlawful aggression on the part of the deceased; (2) reasonable necessity of the means employed by him to prevent or repel the aggression; and (3) lack of sufficient provocation on his part in defending himself. Accused-appellant has failed to discharge this burden. virtualawlibrary A. His version of how he was able to wrest the knife from the deceased is incredible. He alleges that he fought three men, all of whom were bigger than he, with one (the deceased Benjamin Sarmiento) even armed with a knife. How despite these odds he was able to parry the knife thrust of the deceased and eventually wrest the knife from him is hard to understand. How he was able to wound his adversary not just once but twice, hitting him in vital portions of the body, although he was allegedly down,[25] is even harder to fathom. The location and the nature of the wounds (deep with clean edges) suggest that accused-appellant was not just defending himself but was actually attacking his victim with intent to kill.[26] Moreover, as held in People v. Jotoy,[27] the fact that he threw the knife away instead of surrendering it to the authorities and reporting the incident negates the claim of self-defense. virtualawlibrary B. The defense presented a witness, Juanito Araneta, whose testimony was, if not contradictory, ridiculous. His testimony raises serious doubts as to whether he really saw the incident. virtualawlibrary Accused-appellant claims that the deceased and his companions came back at around nine in the evening in order to carry out their earlier threat to kill him[28] and dragged him out of his house because he refused to come out. Juanito Aranetas version is that the deceased and his companions told Antonio Piamonte to come down and when he went down, they again helped each [other] in mauling [him].[29] virtualawlibrary In his attempt to show that accused-appellant was the victim, not the aggressor, Araneta only succeeded in making his testimony incredible. Araneta testified that after seeing accused-appellant succeed in wresting the knife from the deceased he (Araneta) lost further interest in watching the fight and so went inside his house and slept.[30] Later, on cross-examination,[31] he testified that he did not go to sleep; he actually went fishing. virtualawlibrary Araneta also claimed he saw the incident because he had been drawn to it by a commotion. Yet, only he heard the commotion and went out of the house to see what was going on. His neighbors, according to him, were all asleep. [32] How could only he, and not his neighbors, have heard the commotion? virtualawlibrary Thus, having failed to show that he acted in self-defense, accused-appellant must be adjudged guilty of the killing of Benjamin Sarmiento. II.

As already stated, the trial court found that accused-appellant had been beaten up by Benjamin Sarmiento and his group and that, in revenge, he waited for the group to pass by his house again and, upon seeing them, he assaulted Sarmiento and stabbed him twice. On the basis of this finding, the trial court held the killing to be murder, qualified by evident premeditation and treachery. virtualawlibrary It is now settled that qualifying and aggravating circumstances, which are taken into consideration for the purpose of increasing the degree of penalty to be imposed, must be proven with equal certainty as the commission of the act charged as criminal offense.[33] virtualawlibrary With respect to the qualifying circumstance of evident premeditation, the following must be shown: (a) the time when the accused determined to commit the crime; (b) an act manifestly indicating that the accused had clung to his determination; and (c) a sufficient lapse of time between such determination and execution to allow him to reflect upon the consequences of his act.[34] virtualawlibrary In this case, evident premeditation cannot be appreciated because there is no direct proof showing when accusedappellant conceived the plan to kill the deceased, that he clung to his determination to kill the deceased, and that sufficient time had elapsed between the determination and execution of the crime to allow his conscience to overcome the resolution of his will. virtualawlibrary In People v. Sol,[35] it was held that a finding of evident premeditation cannot be based on mere lapse of time. virtualawlibrary In People v. Timblor,[36] where the accused had a fistfight with the victim and after an hour, he came back with a bolo and killed his adversary, it was held that proof that after the fistfight the accused came back with a bolo cannot be considered proof that he had determined to kill his adversary. Nor could it be inferred from this circumstance that the accused had sought revenge. All that the evidence showed was that he sought his antagonist after their earlier fight. The Court reiterated earlier rulings that a qualifying circumstance like evident premeditation must be clearly shown just as the crime itself. Every element of the qualifying circumstance must be shown beyond reasonable doubt and cannot be left to speculation. virtualawlibrary On the other hand, treachery requires proof of the following: (1) the employment of means of execution which gives the person attacked no opportunity to defend or to retaliate; and (2) that said means of execution were deliberately or consciously adopted.[37] virtualawlibrary In this case, while the main prosecution witness David Morte testified during his direct examination that accusedappellant suddenly appeared and suddenly stabbed the deceased, on cross-examination he admitted that they saw accused-appellant when they were still very far although they did not then recognize him. We are not prepared to say that the stabbing of the deceased was sudden, unexpected, and unforeseen.[38] Nor is there proof that he employed such means as would ensure the commission of the crime without risk to himself since he knew that the deceased had two companions with him, both of whom were bigger than he (accused-appellant) while all he had was a knife. virtualawlibrary There was thus no qualifying circumstance, so that the crime committed was homicide, the penalty for which under Art. 249 of the Revised Penal Code is reclusion temporal. As there was no modifying circumstance (either aggravating or mitigating), the penalty should be fixed in its medium period. virtualawlibrary In accordance with current jurisprudence, the death indemnity should be raised from P30,000 to P50,000.00.[39] virtualawlibrary WHEREFORE, the decision of the Regional Trial Court of Puerto Princesa City (Branch 47) is MODIFIED and accusedappellant Antonio Piamonte is hereby found guilty of homicide and sentenced to suffer a prison term of 10 years of prision mayor, as minimum, to 17 years and 4 months of reclusion temporal, as maximum, and to pay the heirs of the victim Benjamin Sarmiento P50,000.00 as death indemnity and the costs.