Republic of the Philippines SUPREME COURT Manila EN BANC DECISION December 4, 1908 G.R. No.

4490 THE UNITED STATES, plaintiff-appellee, vs. FELICIANO DIVINO, defendant-appellant. Leodegario Azarraga, for appellant. Attorney-General Araneta, for appellee. ARELLANO, C.J.: This cause was brought against Feliciano Divino for the crime of lesiones graves, and appealed by him to this court from a judgment of the Court of First Instance of Davao, Moro Province, whereby he was sentenced to the penalty of two years eleven months and eleven days of presidio correccional, with the accessory penalty of suspension from all public office, profession, occupation, or right of suffrage, and to pay the costs of the proceedings. The appeal having been heard, it appears That in September, 1907, a complaint was filed and proceedings were instituted by reason of a deed which, from the findings of the court below, is said to have occurred four years ago on a certain night, the date of which can not be determined from the evidence, consisting of lesiones, of which there is no further description than that made by the court below at the trial as follows: The feet of the witness show several large scars which surround both feet, beginning at the instep and extending to the sole all around the feet. The appearance of the said scars indicates that they were not caused by blows inflicted by a cutting instrument, but are the result of a lesion of considerable width. In addition to the wide scar that surrounds each foot there are several small scars (folio 103). The court observes that both feet are deformed at the instep as if they had been tightly bound with a cord, and the resulting depression had become permanent. The left foot is also quite deformed, the toes being separated to an abnormal extent; the right foot is deformed in the same manner although not so much. The soles of both feet are deformed on account of protuberances of what seems to be callous matter. (Folio 109.) With regard to said lesiones the complaint reads: That one day in the month of July, 1903, in the municipality of Davao, district of Davao, Moro Province, the accused, in his house, tied a girl named Alfonsa by the hands and legs, laid her on the floor, stuffed a piece of cloth into her mouth, and fastened her body to the boards of the said floor; he then wrapped her feet around with pieces of cloth, saturating said cloth with petroleum, and thereafter set the cloth on fire by means of a match; the cloth burned for about five minutes or more, seriously burning the girls feet, and causing lesiones in said members from the result of which the said girl became disabled in the said principal members. (Folio 18.) The so-called Alfonsa does not know her age, but the court below, however, estimated her to be 13. Neither does she know who are her parents; her former surname was Divino but is now Esperat, and she calls Segundo Esperat her father, because she says she lived in his

house a month; when asked if Esperat was her true father, she answered no, that she was only his adopted child. She described the affair in the following manner: I was in the kitchen preparing food and they sent for me to go to the sala. After I was in the salaFelicianos daughter took a rag and soaked it in petroleum. Feliciano then ordered me to lie down on the floor. Felicianos eldest daughter took a rag and forced it into my mouth. She then got another rag and blindfolded me with it. Felicianos daughter then g ot a pestle used for hulling rice and handed it to Feliciano who placed it across my legs, tying its ends to the floor so that I was unable to stir. While I was in this position on the floor; Felicianos daughter caught me by the head and shoulders and hel d me down. Feliciano then lighted a match and set fire to my feet. They left me thus for the length of time required to smoke two cigarettes and until the flames were extinguished. After half a minute Feliciano released me and took me to the storehouse; there they left me and locked the door. At noon they gave me some food; they kept me three nights in the storehouse. Afterwards they took me out and locked me up in the hog-pen; they left me there without any covering and exposed to the open air, but they afterwards fixed up a temporary cover to protect me. And in answer to questions put to her, she continued to say that there were present in the sala while Feliciano was burning her feet, Clara, the eldest daughter of the latter, who was then 13 years old, and the younger ones Nining and Nating together with three servants, Petra, Catalina, and Pedro; that while they were burning her feet, her hands were tied alongside her body; that Clara, Felicianos daughter, held her by the head and shoulders; that a stick was placed over her legs and tied to the floor, and another was put over her chest and also tied to the floor; that thereafter she was taken to a storeroom beneath the house wherein she remained three days and nights, and from thence she was taken to a hog-pen in the rear of the kitchen, which she now says had a roof, remaining there one month, and that when she left it she continued to live in the house for three months, until one day, at midnight, without the knowledge of Feliciano, she left in company of a girl named Irinea for the purpose of making a complaint; that they went to the office of Mr. Wood, which gentleman was present in the court-room (pointing him out). And when asked where Mr. Woods office was she pointed out the government building of the district of Davao. On cross-examination she said that a Bagobo named Andalan had taken her over to Felicianos house to live; that she did not know whether her parents were Bagobos, nor who they were, and that, when she reached the age of reason, she found herself in the house of Feliciano, so that her first recollections are of the time of when she was in Felicianos house, that she had reported the matter to the American military governor, but to the questions of the counsel for the defense as to whether any action was taken, the fiscal objected and the court sustained the objection; that, when she went to Felicianos house, she already had a scar on the left cheek and another near the mouth; that they tied her body with a rope, bound her hands, place over her legs a pestle such as is used for hulling rice, and the three daughters sat on her head and shoulders (it is no longer one daughter who held her down by the head and shoulders). Subsequently these question were put: Q. How many times was the rope passed around your body? A. Three times. Q. Before the pestle was placed over you? A. Yes, sir. Q. What was the rope tied to, the floor? A. Yes, sir. Q. Tell me for the last time, is it actually true that, when the said stick was placed over you, you were already tied down with the rope? A. Yes, sir. Q. When you were tied down, do you mean that the rope passed through the crevices of the floor? A. Yes, sir.

Q. You say that this rope passed through one crevice in the floor and came out by another, fastening you to the floor; do you not? A. Yes, sir. Q. Was no one beneath the house when this occurred? A. Yes, sir. Q. Before placing the rag over your feet, is it true that they first soaked it with petroleum and then placed it on your feet? A. Yes sir. Q. How long did the rag burn? A. Nearly an hour and a half. By the court: Q. Do you mean to say that the rag was burning on your feet for an hour and a half? A. Yes, sir. Q. How many cigarettes could you have smoked while the rags were burning? A. About two cigarettes. Q. How long have you been testifying this afternoon? A. I dont know. How many cigarettes could you have smoked since you arrived up to the present time? A. Four cigarettes. Note by the court. The witness has been testifying two hours. Another witness called Petra, who has no surname and does not know the race to which she belongs nor what age she is, although the court below reckons her to be between 17 and 21, and who lives in Davao, with Maria (the accuseds third wife who, according to the data contained in the proceedings, was at the time separated from him), declares that Alfonsas injuries were the result of the burns caused by the accused one night; that the latter called her, laid her on the floor of the salaof the house, tied her down, placing sticks over her chest and feet, put some rags on the latter and set fire to them, the flames lasting the time required to smoke one cigarette and a half (Alfonsa said two cigarettes and afterwards one hour and a half); she further testified in relation to the incidents of the storeroom and the hog-pen, and said that, while she was still in the sala, she saw the feet, that the skin was swollen, and that Alfonsa was kept for one year in the hog-pen. But upon being afterwards asked by the court how many months there were in a year she said: One crop of rice, and that she did not know how many months there were in a year, nor days in the week nor hours in a day, and that, when saying one year, she mean a long time; that when she left the house Alfonsa was still in the hog-pen. Regarding the rope with which he says Alfonsa was bound, there are the following questions: Q. In order to tie this rope to the floor if it true that four nails were driven in the floor? A. No, sir; the rope was simply tied to the floor, to the listones (strips used in filling crevices between the boards). Q. Did this rope with which she was tied pass entirely around her body? A. No, it was the stick that was tied down to the floor. Q. Then you mean to say that the rope did not go around Alfonsas body but that it was only tied to the stick? A. Yes, and the stick was tied to the boards of the floor [entirely the reverse of what Alfonsa testified]. Q. Was anybody beneath the house? A. No, sir.

Q. Were the trips of palma brava wide or narrow? A. They were narrow. Q. What distance was there between the strips? A. There were cracks between them. Q. Is it not true that this was the distance between the strips [showing half an inch]? A. No, sir; it was so [showing a quarter of an inch]. Q. When Feliciano tied the rope to the floor he did it from above; did he not? A. I dont know, I did not see it done. Q. But you were in the sala at that time, were you not? A. Yes. Q. Where do you live now? A. I am living with Maria. Q. Have you had any conversations with her in connection with these matters? A. No, sir. Q. Is it not true that you told several people that you have had a talk with Maria Verano, the wife of the accused? A. No, sir. Q. Did you go to live with Maria Verano after she separated from her husband? A. Yes, sir. The third witness for the prosecution is Mr. Orville Wood, 30 years of age, agriculturist, residing in the municipality of Davao; he was formerly an assistant superintendent of schools, and later served as secretary of the district of Davao from January, 1904, until the time when he testified; he states that he had been in the old house of Feliciano, where the affair is said to have occurred, for about three hours some time in 1905; that he knows Maria Verano who is married to Feliciano Divino, and believes that he saw her the day before that on which he testified; that he has also known Feliciano Divino since the year 1904, and that he knows Alfonsa, the girl who testified in court in his presence on that same day; and he described a conversation that he had with Feliciano Divino on the balcony of the government building in the following terms: When Feliciano first came to the balcony we spoke of another matter; what he afterwards stated in connection with this matter was in answer to a question finally addressed to him by the Governor Bolton; Governor Bolton said to Feliciano that he, Feliciano, had informed him previously that it was Maria who had burned Alfonsas feet, but Governor Bolton knew at the time that this was not true, and asked him who had burnt her feet; Feliciano replied that it was he who burnt Alfonsas feet, but that his wife, Maria, had ordered him to do it; the governor asked him who was the head of his house; he or his wife. The witness goes on to say that he subsequently spoke with Petra, Catalina, and Pedro in regard to the affair in 1904, and also spoke with Petra, Alfonsa, and another whose name he does not recollect, and that, when he asked Alfonsa who had burnt her feet, she at first said that she did not know, but when he insisted on her telling him she replied that Felicianos children had done it. On being asked if he knew of the crime in June, 1903, he said no, that it had come to his knowledge in the month of September, 1904; when asked whether, prior to the time that Feliciano told Governor Bolton in the presence of the witness that he, Feliciano, had burnt Alfonsas feet, Feliciano had told him that another person had done it, he answered yes, that his wife, Maria, had burnt Alfonsas feet; this statement was made to him at his office in the month of December, 1904, the other one having been made to the governor in October, 1905; and to the question Why did he tell you this? he replied: When Alfonsa came to the office for the first time, she was very frightened, and we could hardly get anything, from her; we relied upon Felicianos word as to who was the guilty party;

the girl was small and sickly and we could not obtain any information from her. When she was removed from the hands of Feliciano and turned over to another family that was not related to him, and when she found out that she would not have return to him, it happened one day that I was at the balcony of the office and saw her coming up the street; when she had nearly reached the road, Feliciano Divino was coming out of the Auats store, directly in her road; she turned round at once and ran to the stairs of the office, and hid herself behind Segundo Esperat; as the result of a conversation that I had with her, on said occasion I spoke to Feliciano and he then confessed his guilt; Feliciano told me that Maria had burnt Alfonsas feet at a time when she was absent from his house; he did not say when, and said nothing more. The cross-examination was of the following tenor: Q. After Alfonsa reported the matter to the government, did she return to Felicianos house? A. So far as I know, she did not; the Government placed the girl in charge of Esperat. Q. Do you remember the date on which the girl came to the government building? A. I can not name the day, but only the month. Q. What month was it? A. December, 1904, toward the end of the month. By the court: Q. When Alfonsa came to report the matter, to whom did she report? A. To the governor. Q. Were you present when she reported it to the governor? A. I acted as interpreter. Q. What was Alfonsas reason for reporting it? A. She wanted to leave Felicianos house. Q. Who were present when she reported the matter? A. Governor Bolton and myself. Q. Was anybody with her? A. A boy and a girl; this was the occasion on which she stated that Felicianos daughters had burnt her. Q. Was Feliciano present? A. No, sir. Q. Tell the court as fully as you can remember everything that Alfonsa stated on said occasion. A. She said hardly anything; it was her friend Quirina who said the most. Q. What did Quirina say? A. Quirina complained of the treatment that she had received in Felicianos house, and asked that she be sent to some other. Q. What did she say with regard to the burns on Alfonsas feet? A. She said that she did not witness the burning and that she did not know who did it. Q. Was Alfonsa questioned on the matter? A. Yes. Q. Can you state more fully what she said? A. I think not. Clara Divino, 16 years of age, a witness for the defense, testified; that when Alfonsa went to their house she had several sores on her face and feet, and a bruise on her ankle; her father wanted to apply some medicines to them but she took no heed; that one day her father said: Let us cure her with herbs; the treatment took a long time, and as she would not remain quiet, her father ordered her to stay in the house in order to cure her the better, but she

always went out, and her father then called her and put petroleum on her feet; this proved very effective and cured her to some extent; her father, in order to prevent her going out of the house locked her in the storeroom for several days, and afterwards in the pantry upstairs, a room for one side of the kitchen used by the servants; and that after Alfonsa ran away from the house, she saw her in the streets; that no force was used in treating her; that her father held her while they applied petroleum to her feet; she denied that she ever bound or secured with a stick or laid on the floor, because she held her by the shoulders; that she was sitting down with her feet stretched out; that her feet had been bandaged many times; that her father was not angry on the occasion that petroleum was applied to Alfonsas feet; that a physician called at their house to attend to Alfonsa; that when Alfonsa came to their house, her feet were sore and ulcerated. And it was the fiscal who put in the question Whether at the time she had only a small ulcer on her feet, to which she replied yes; that at that time they had previously washed Alfonsas feet with hot water, and that thereafter the petroleum was applied and the feet bandaged. Finally, Feliciano Divino, the accused, testified as follows: Captain Tomas sent the girl to me for treatment because she was suffering from ulcers. As Captain Tomas insisted, I admitted her to my house. When we got to my house I found out that she had a great many sores and I kept her there in order to cure her. I took care of her and gave her food and clothing. Her malady improved at times, but after two or three months reappeared. She had ulcers on both feet and on the face. The sores on her face healed, but the ulcers on her feet became worse until they finally extended to the sole of the foot. I ordered her to treat the sore with petroleum, but she would not do it. After some time I had to look after the ulcers personally. At times they improved, and at others became worse. The ulcer on the sole of her foot became larger. The other ulcers did not entirely heal, the infection remained inside. The wounds on the instep and upper part of the feet progressed fairly well, but those that she had on her soles did not, because she always went out of the house and walked about. I continued to look after and treat all the ulcers that appeared. As several years elapsed without the ulcers becoming entirely cured, I decided to cure them with petroleum, but she objected and smelled badly, I called her one evening to the sala and examined it. When I found that it had grown too large on both feet, I ordered some hot water and told my daughters to hold the girl because she objected to having petroleum applied to her feet. I ordered them to hold her while I washed the ulcers with hot water. I then poured petroleum over her feet and bandaged them. Fearing that she would go out of the house and again walk in the dirt, put her in the storeroom. After a few days I ordered her upstairs and locked her in the pantry where the servants slept. When questioned as to where the servants went with Alfonsa, he said that he came to know of it because the governor had sent him word and told him that his servant girl accused him of burning her feet, but he denied it and explained the truth of the matter, of how he had tried to cure her feet; the governor told him to go back to his house, and that he would investigate the affair; he afterwards ordered him to the town and when he reached it, Mr. Wood alone was there; Mr. Wood told him that the best thing that he could do was to settle the matter as soon as possible., The court then asked: Was this the same conversation as to which Mr. Wood testified? A. I did not understand what Mr. Wood said last night, but I will only say what took place. When I asked him what kind of a settlement he wished, he suggested to me that I support Alfonsa for four years at the rate of 5 pesos a month. He made a written agreement with me. Inasmuch as this girl had rendered me good service, I had no objection to allowing her 5 pesos a month. He asked me to sign the paper, telling me that the agreement was that I was to pay Alfonsa 5 pesos a month for a period of four years. I did not read the paper because I had great confidence in Mr. Wood. Under said agreement I have been paying for two years and three months.

Q. In what condition were the feet of the girl when she first entered your house? A. When she came to my house her feet were somewhat deformed, the toes were twisted, and there was an ulcer on her ankle. Tomas Monteverde, the Captain Tomas to whom the accused refers, testified that he had twice beengobernadorcillo, and twice justice of the peace; that one day as he was going beyond Talomo, where the accused lived, in order to examine a corpse, he saw Alfonsa on the road in very bad condition; she was covered from the face to her feet with ulcers called ibung, and which smelled offensively; he gave her to Feliciano to be cured; this was in 1898, when he still was justice of the peace in the time of the Spanish Government; subsequently, in answer to questions put by the court, he said that, after the girl was delivered to Feliciano, he saw her almost every month because when going to pueblo they called at his house; on making him describe the ulcers and scars that he had seen, he said that the whole of the instep was red in color and denuded of the skin, and that she had ulcers in the sole of her foot, a scar above the left ankle, and several scars on her face. In view of the admission of the accused says the trial judge in view of the present condition of the feet of the injured party, which positively prove that the scars which appear on them are the result of burns, and in view of the lack of any explanation on the part of the defense as to the manner in which said burns were produced, it limiting itself to showing that they are the result of ulcers, the court has no doubt that Alfonsa and Petra told the truth in everything of importance. And considering that the accused was guilty of the crime of lesiones graves, defined and punished by article 416, paragraph 3, of the Penal Code, with the aggravating circumstances 1 and 2 of article 10 of the said code, without any mitigating circumstance, the court sentenced him to the penalties stated in the beginning. The testimony of Orville Wood, who at that time was secretary of the military governor of said district, was not impugned or discredited in any way, and far from being ignored in the examination of these proceedings, should command due attention as being the testimony that furnished the data for the proper judgment of facts that four years later were put forward as constituting a crime, without there appearing in the proceedings any reason or cause whereby a poor helpless girl, after living five or six years in the house of the accused, should have been injured by the latter in so cruel a manner as described. If Alfonsa spoke the truth, one month and three weeks after she was tortured she was on her way to the government building, and on seeing the accused in the road she ran to the stairs of the office and hid herself behind Segundo Esperat. She was accompanied by one Quirina, and Alfonsa said hardly anything, it was her friend Quirina who said the most, and Quirina only complained of the treatment that she had received in Felicianos house, and requested that she be sent elsewhere. And as Governor Bolton was aware of the circumstance, had it partaken of the character of a crime, it can not be assumed, because nothing induces such a presumption, that he would have let it pass without causing it to be prosecuted and punished. That petroleum was forcibly applied to the feet of Alfonsa, there can be no doubt; but that besides the action of the oil, fire was applied, and above all, that said application of fire was a mere stroke of cruelty, and that the torture was kept up for an hour and a half, or the time required to smoke two cigarettes, or one cigarette, when the testimony even regarding the manner in which said coercion was effected was contradictory, a point which was so important, for the subjection of the tortured girl or the patient to whom the cure was applied, is a thing that can not be conclusively established; and even if, by means of circumstantial evidence, the burns were actually proven, it can not be established in a conclusive manner that the injury was caused maliciously. This must have been the consideration which induced the secretary, who, as an honorable man, must have been indignant at the cruel injuries which the prosecution has attempted to exaggerate at the trial, to limit his action to obtaining from the accused a written obligation

allowing Alfonsa a monthly pension of five pesos for her subsistence. This was confirmed by the accused, and has in no manner been contradicted in the proceedings, although the investigations to establish the criminality of the deed were most searching. The expert testimony offered by the prosecution should be carefully noted, as should also the opinion of the lower court in connection therewith contained in its judgment. The said witness states that he rendered assistance to Alfonsa from the 29th of December, 1905, to the 16th of December, 1906 the burns are supposed to have been caused two years previously on account of a large ulcer that she had on the left foot, in a place that showed an old scar; according to the courts remark on folio 109, said left foot was the most deformed. It was a bad ulcer says the expert that extended over the instep under the ankle, passing to the middle of the sole; it was two and half inches wide, and it lacked two inches of surrounding the foot. The soles of both feet are deformed by reason of protuberances of what appears to be callous matter. The witness continues his explanation of the prolonged treatment of the said ulcer, and ends thus: After the new soft tissue was formed level with the skin, in order to avoid an excessive contraction, I cut some pieces of the girls skin and placed them over the wound. I did this several times before effecting a complete cure. I presented my bill for seven hundred and sixty-six pesos (P766). (Folios 145 and 148.) The following rulings are contained in the latter part of the judgment: No damages are allowed as no proof has been offered whereon the court may base the amount thereof. The court considers that the prejudice caused to the injured party by an ulcer of one of the feet that was cured by Dr. Ames was not directly occasioned by the accused. (Folio 186.) On cross-examination: Q. Did you notice that Alfonsa had scars all over her body? A. She has numerous scars. Q. If a person placed his hand in the middle of a flame, would his hands become charred? A. Certainly, all the soft parts would be charred. Q. By looking at a scar, how can you determine that it is due to a burn and not to impurities of the blood? A. The scar of a burn is not always characteristic. It may resemble other scars, but in general, scars resulting from burns are superficial, and sometimes cover a large space. Other causes which destroy the skin to a large extent may produce the same kind of scar. Q. Have you noticed that non-Christian Bagobos have weak constitutions, and that, as a rule, their skin is covered with eruptions? A. They show many scars and many eruptions, and their constitutions are weak when they are not well-fed. Q. Have you noticed that these wounds have become worse by reason of the herbs they apply to cure them? -A. Undoubtedly, the wounds became worse on account of their efforts to cure them.

Q. With reference to Alfonsas wounds, it is not possible that the contraction observed in the scars was caused by the lack of proper treatment? A. The contraction in a wound depends upon the extent of the tissue embraced by the scar, and this depends on the size of the original wound which may become larger owing to lack of proper treatment. (Folios 152 and 153.) Granting among the admissions made by the accused, that he continued the treatment of the ulcers of the girl until he or his daughters burned her, or that the action of the petroleum irritated the said ulcers and caused them to spread, as may be judged from the extent of the scars, to have been intended to cause an evil, but rather as a remedy; however, taking into account the imprudence defined in paragraph 2 of article 568 of the Penal Code, as having been committed by an ignorant person who was prohibited from exercising the art of healing not only by the regulations governing it but also by the Penal Code, the penalty prescribed by the paragraph above referred to, that is,arresto, must therefore be applied in its medium and maximum degrees. In view of the foregoing, the judgment appealed from is hereby reversed, and it is our opinion that, in accordance with the provisions of paragraph 3 of article 568 of the Penal Code, Feliciano Divino should be, and he is hereby, sentenced for simple imprudence to the penalty of four months of arresto mayor, to suspension from office and right to suffrage during the period of his sentence, and to pay the costs of both instances. So ordered. Torres, Mapa, Carson, Willard, and Tracey, JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 137268 March 26, 2001

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EUTIQUIA CARMEN @ Mother Perpetuala, CELEDONIA FABIE @ Isabel Fabie, DELIA SIBONGA @ Deding Sibonga, ALEXANDER SIBONGA @ Nonoy Sibonga, and REYNARIO NUEZ @ Rey Nuez, accused-appellants. MENDOZA, J.: This is an appeal from the decision1 of the Regional Trial Court, Branch 14, Cebu City, finding accused-appellants Eutiquia Carmen @ Mother Perpetuala, Celedonia Fabie @ Isabel Fabie, Delia Sibonga @ Deding Sibonga, Alexander Sibonga @ Nonoy Sibonga, and Reynario Nuez @ Rey Nuez guilty of murder and sentencing them to suffer the penalty of reclusion perpetua and to pay the heirs of the victim the amount of P50,000.00 as indemnity as well as the costs. The information2 against accused-appellants alleged: That on or about the 27th day of January, 1997 at about 2:00 o'clock p.m., in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, conniving and confederating together and mutually helping one another, with deliberate intent, with intent to kill, with treachery and evident premeditation, did then and there inflict fatal physical injuries on one Randy Luntayao which injuries caused the death of the said Randy Luntayao. Accused-appellants pleaded not guilty to the charge, whereupon they were tried. The prosecution presented evidence showing the following: At around 2 o'clock in the afternoon of January 27, 1997, Honey Fe Abella, 10, and her friend Frances Claire Rivera, 7, were playing takyan in front of the house of one Bebing Lastimoso in Quiot, Pardo, Cebu City, when suddenly they heard a child shout, "Tabang ma!" ("Help mother!"). The cry came from the direction of the house of accused-appellant Carmen, who is also known in their neighborhood as Mother Perpetuala. The two children ran towards Mother Perpetuala's house.3 What Honey Fe saw on which she testified in court, is summarized in the decision of the trial court, to wit: While there[,] she saw a boy, whose name . . . she [later] came to know as one Randy Luntayao, . . . being immersed head first in a drum of water. Accused Alexander Sibonga was holding the waist of the body while accused Reynario Nuez held the hands of the boy at the back. Accused Eutiquia Carmen, Delia Sibonga, and Celedonia Fabie were pushing down the boy's head into the water. She heard the boy shouting "Ma, help" for two times. Later, she saw accused Reynario or Rey Nuez tie the boy on the bench with a green rope as big as her

little finger. . . . After that Eutiquia Carmen poured [water from] a plastic container (galon) . . . into the mouth of the boy. Each time the boy struggled to raise his head, accused Alexander Sibonga banged the boy's head against the bench [to] which the boy was tied down. She even heard the banging sound everytime the boy's head hit the bench. For about five times she heard it. According to this witness after forcing the boy to drink water, Eutiquia Carmen and accused Celedonia Fabie alias Isabel Fabie took turns in pounding the boy's chest with their clenched fists. All the time Rey Nuez held down the boy's feet to the bench. She also witnessed . . . Celedonia Fabie dropped her weight, buttocks first, on the body of the boy. Later on, Eutiquia Carmen ordered Delia or Deding Sibonga to get a knife from the kitchen. Eutiquia Carmen then slowly plunged the stainless knife on the left side of the boy's body and with the use of a plastic gallon container, the top portion of which was cut out, Eutiquia Carmen [caught] the blood dripping from the left side of the boy's body. Honey Fe heard the moaning coming from the tortured boy. Much later she saw Nonoy or Alexander Sibonga, Reynario Nuez, Delia Sibonga, Celedonia Fabie, and Eutiquia Carmen carry the boy into the house.4 Eddie Luntayao, father of the victim, testified that he has five children, the eldest of whom, Randy, was 13 years old at the time of the incident. On November 20, 1996, Randy had a "nervous breakdown" which Eddie thought was due to Randy having to skip meals whenever he took the boy with him to the farm. According to Eddie, his son started talking to himself and laughing. On January 26, 1997, upon the suggestion of accused-appellant Reynario Nuez, Eddie and his wife Perlita and their three children (Randy, Jesrel, 7, and Lesyl, 1) went with accused-appellant Nuez to Cebu. They arrived in Cebu at around 1 o'clock in the afternoon of the same day and spent the night in Nuez's house in Tangke, Talisay. The following day, they went to the house of accused-appellant Carmen in Quiot, Pardo,5 where all of the accused-appellants were present. Eddie talked to accused-appellant Carmen regarding his son's condition. He was told that the boy was possessed by a "bad spirit," which accused-appellant Carmen said she could exorcise. She warned, however, that as the spirit might transfer to Eddie, it was best to conduct the healing prayer without him. Accused-appellants then led Randy out of the house, while Eddie and his wife and two daughters were locked inside a room in the house.6 After a while, Eddie heard his son twice shout " Ma, tabang!" ("Mother, help!"). Eddie tried to go out of the room to find out what was happening to his son, but the door was locked. After about an hour, the Luntayaos were transferred to the prayer room which was located near the main door of the house.7 A few hours later, at around 5 o'clock in the afternoon, accused-appellants carried Randy into the prayer room and placed him on the altar. Eddie was shocked by what he saw. Randy's face was bluish and contused, while his tongue was sticking out of his mouth. It was clear to Eddie that his son was already dead. He wanted to see his son's body, but he was stopped from doing so by accused-appellant Eutiquia Carmen who told him not to go near his son because the latter would be resurrected at 7 o'clock that evening.8 After 7 o'clock that evening, accused-appellant Carmen asked a member of her group to call the funeral parlor and bring a coffin as the child was already dead. It was arranged that the body would be transferred to the house of accused-appellant Nuez. Thus, that night, the Luntayao family, accompanied by accused-appellant Nuez, took Randy's body to Nunez's house in Tangke, Talisay. The following day, January 28, 1997, accused-appellant Nuez told Eddie to go with him to the Talisay Municipal Health Office to report Randy's death and

told him to keep quiet or they might not be able to get the necessary papers for his son's burial. Nuez took care of securing the death certificate which Eddie signed. 9 At around 3 o'clock in the afternoon of January 28, 1997, accused-appellant Carmen went to Tangke, Talisay to ensure that the body was buried. Eddie and his wife told her that they preferred to bring their son's body with them to Sikatuna, Isabela, Negros Occidental but they were told by accused-appellant Carmen that this was not possible as she and the other accused-appellants might be arrested. That same afternoon, Randy Luntayao was buried in Tangke, Talisay.10 After Eddie and his family had returned home to Negros Occidental, Eddie sought assistance from the Bombo Radyo station in Bacolod City which referred him to the regional office of the National Bureau of Investigation (NBI) in the city. On February 3, 1997, Eddie filed a complaint for murder against accused-appellant Nuez and the other members of his group.11 He also asked for the exhumation and autopsy of the remains of his son. 12 As the incident took place in Cebu, his complaint was referred to the NBI office in Cebu City. Modesto Cajita, head of NBI, Region VII (Cebu), took over the investigation of the case. He testified that he met with Eddie Luntayao and supervised the exhumation and autopsy of the body of Randy Luntayao.13 Cajita testified that he also met with accused-appellant Carmen and after admitting that she and the other accused-appellants conducted a "pray-over healing" session on the victim on January 27, 1997, accused-appellant Carmen refused to give any further statement. Cajita noticed a wooden bench in the kitchen of Carmen's house, which, with Carmen's permission, he took with him to the NBI office for examination. Cajita admitted he did not know the results of the examination.14 Dr. Ronaldo B. Mendez, the NBI medico-legal officer who conducted the autopsy on Randy Luntayao, testified that he, the victim's father, and some NBI agents, exhumed the victim's body on February 20, 1997 at Tangke Catholic Cemetery in the Tangke, Talisay, Cebu. He conducted the autopsy on the same day and later submitted the following report (Exhs. E and F):15 FINDINGS Body in advanced stage of decomposition wearing a white shirt and shorts wrapped in printed blanket (white and orange) placed in white wooden coffin and buried underground about 4 feet deep. Contusion, 3.0 x 4.0 cms. chest, anterior, left side. Fracture, 3rd rib, left, mid-clavicular line. Fracture, linear, occipital bone right side extending to the bases of middle cranial fossae right to left down to the occipital bone, left side. Fracture, diastatic, lamboidal suture, bilateral. Internal organs in advanced stage of decomposition.

Cranial vault almost empty. CAUSE OF DEATH: [The victim] could have died due to the internal effects of a traumatic head injury and/or traumatic chest injury. Dr. Mendez testified that the contusion on the victim's chest was caused by contact with a hard blunt instrument. He added that the fracture on the rib was complete while that found on the base of the skull followed a serrated or uneven pattern. He said that the latter injury could have been caused by the forcible contact of that part of the body with a blunt object such as a wooden bench.16 On cross-examination, Dr. Mendez admitted that he did not find any stab wound on the victim's body but explained that this could be due to the fact that at the time the body was exhumed and examined, it was already in an advanced state of decomposition rendering such wound, if present, unrecognizable.17 Accused-appellants did not testify. Instead, the defense presented: (a) Ritsel Blase, an alleged eyewitness to the incident; (b) Maria Lilina Jimenez, Visitacion Seniega, and Josefina Abing, alleged former "patients" of accused-appellant Carmen; (c) Dr. Milagros Carloto, the municipal health officer of Talisay, Cebu and; (d) Atty. Salvador Solima of the Cebu City Prosecutor's Office. Ritsel Blase, 21, testified that since 1987 she had been with the group of accused-appellant Carmen, whom she calls Mother Perpetuala. She recounted that at around 2 o'clock in the afternoon of January 27, 1997, while she was in the house of accused-appellant Carmen, she saw Eddie Luntayao talking with the latter regarding the treatment of his son. The boy was later led to the kitchen and given a bath prior to "treatment." After water was poured on the boy, he became unruly prompting accused-appellant Carmen to decide not to continue with the "treatment," but the boy's parents allegedly prevailed upon her to continue. As the boy continued to resist, accused-appellant Carmen told accused-appellants Delia Sibonga and Celedonia Fabie to help her (Carmen) lay the boy on a bench. As the child resisted all the more, Eddie Luntayao allegedly told the group to tie the boy to the bench. Accusedappellant Delia Sibonga got hold of a nylon rope which was used to tie the child to the bench. Then Carmen, Delia Sibonga, and Fabie prayed over the child, but as the latter started hitting his head against the bench, Carmen asked Nuez to place his hands under the boy's head to cushion the impact of the blow everytime the child brought down his head. To stop the boy from struggling, accused-appellant Fabie held the boy's legs, while accused-appellant Nuez held his shoulders. After praying over the boy, the latter was released and carried inside the house. Accused-appellant Alexander Sibonga, who had arrived, helped carry the boy inside. After this, Blase said she no longer knew what happened inside the house as she stayed outside to finish the laundry.18 Blase testified that the parents of Randy Luntayao witnessed the "pray-over" of their son from beginning to end. She denied that accused-appellants Fabie and Delia Sibonga struck the victim on his chest with their fists. According to her, neither did accused-appellant Carmen stab the boy. She claimed that Randy was still alive when he was taken inside the house. 19 The defense presented Maria Lilia Jimenez, 20, Visitacion Seniega, 39, and Josefina Abing, 39, who testified that accused-appellant Carmen had cured them of their illnesses by merely praying over them and without applying any form of physical violence on them.20

Milagros Carloto, Municipal Health Officer of Talisay, Cebu, was also presented by the defense to testify on the death certificate she issued in which she indicated that Randy Luntayao died of pneumonia. According to her, Eddie Luntayao came to her office on January 28, 1997 to ask for the issuance of a death certificate for his son Randy Luntayao who had allegedly suffered from cough and fever.21 On cross-examination, Dr. Carloto admitted that she never saw the body of the victim as she merely relied on what she had been told by Eddie Luntayao. She said that it was a midwife, Mrs. Revina Laviosa, who examined the victim's body.22 The last witness for the defense, Assistant City Prosecutor Salvador Solima, was presented to identify the resolution he had prepared (Exh. 8)23 on the re-investigation of the case in which he recommended the dismissal of the charge against accused-appellants. His testimony was dispensed with, however, as the prosecution stipulated on the matters Solima was going to testify with the qualification that Solima's recommendation was disapproved by City Prosecutor Primo Miro.24 The prosecution recalled Eddie Luntayao to the stand to rebut the testimonies of Ritsel Blase and Dr. Milagros Carloto. Eddie denied having witnessed what accused-appellants did to his son. He reiterated his earlier claim that after accused-appellants had taken Randy, he and his wife and two daughters were locked inside a room. He disputed Blase's statement that his son was still alive when he was brought into the prayer room. He said he saw that his son's head slumped while being carried by accused-appellants.25 As for the testimony of Dr. Carloto, Eddie admitted having talked with her when he and accused-appellant Nuez went to her office on January 28, 1997. However, he denied having told her that his son was suffering from fever and cough as he told her that Randy had a nervous breakdown. He took exception to Dr. Carloto's statement that he was alone when he went to her office because it was Nuez who insisted that he (Eddie) accompany him in order to secure the death certificate.26 On November 18, 1998, the trial court rendered a decision, the dispositive portion of which states: WHEREFORE, in view of the foregoing facts and circumstances, [the] accused are all found guilty beyond reasonable doubt of the crime of Murder and are hereby [sentenced] to suffer the penalty of RECLUSION PERPETUA, with the accessory penalties of the law; to indemnify jointly and severally the heirs of the deceased Randy Luntayao in the sum of P50,000.00; and to pay the costs. The accused, are, however, credited in full during the whole period of their detention provided they will signify in writing that they will abide by all the rules and regulations of the penitentiary.27 In finding accused-appellants guilty of murder, the trial court stated: Killing a person with treachery is murder even if there is no intent to kill. When death occurs, it is presumed to be the natural consequence of physical injuries inflicted. Since the defendant did commit the crime with treachery, he is guilty of murder, because of the voluntary presence of the qualifying circumstance of treachery (P v. Cagoco, 58 Phil. 530). All the accused in the case at bar had contributed different acts in mercilessly inflicting injuries to the victim. For having

immersed the head of the victim into the barrel of water, all the herein accused should be held responsible for all the consequences even if the result be different from that which was intended (Art. 4, par. 1, RPC). It is pointed out that in P. v. Cagoco, 58 Phil. 524, even if there was no intent to kill[,] in inflicting physical injuries with treachery, the accused in that case was convicted of murder. In murder qualified by treachery, it is required only that there is treachery in the attack, and this is true even if the offender has no intent to kill the person assaulted. Under the guise of a ritual or treatment, the accused should not have intentionally immersed upside down the head of Randy Luntayao into a barrel of water; banged his head against the bench; pounded his chest with fists, or plunged a kitchen knife to his side so that blood would come out for these acts would surely cause death to the victim. . . . One who commits an intentional felony is responsible for all the consequences which may naturally and logically result therefrom, whether foreseen or intended or not. Ordinarily, when a person commits a felony with malice, he intends the consequences of his felonious act. In view of paragraph 1 of Art. 4, a person committing a felony is criminally liable although the consequences of his felonious acts are not intended by him. . . . .... Intent is presumed from the commission of an unlawful act. The presumption of criminal intent may arise from the proof of the criminal act and it is for the accused to rebut this presumption. In the case at bar, there is enough evidence that the accused confederated with one another in inflicting physical harm to the victim (an illegal act). These acts were intentional, and the wrong done resulted in the death of their victim. Hence, they are liable for all the direct and natural consequences of their unlawful act, even if the ultimate result had not been intended.28 Hence, this appeal. Accused-appellants allege that the trial court erred in convicting them of murder.29 First. It would appear that accused-appellants are members of a cult and that the bizarre ritual performed over the victim was consented to by the victim's parents. With the permission of the victim's parents, accused-appellant Carmen, together with the other accusedappellants, proceeded to subject the boy to a "treatment" calculated to drive the "bad spirit" from the boy's body. Unfortunately, the strange procedure resulted in the death of the boy. Thus, accused-appellants had no criminal intent to kill the boy. Their liability arises from their reckless imprudence because they ought that to know their actions would not bring about the cure. They are, therefore, guilty of reckless imprudence resulting in homicide and not of murder. Art. 365 of the Revised Penal Code, as amended, states that reckless imprudence consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing such act. Compared to intentional felonies, such as homicide or murder, what takes the place of the element of malice or intention to commit a wrong or evil is the failure of the offender to take precautions due to lack of skill taking into account his employment, or occupation, degree of intelligence, physical condition, and other circumstances regarding persons, time, and place.

The elements of reckless imprudence are apparent in the acts done by accused-appellants which, because of their lack of medical skill in treating the victim of his alleged ailment, resulted in the latter's death. As already stated, accused-appellants, none of whom is a medical practitioner, belong to a religious group, known as the Missionaries of Our Lady of Fatima, which is engaged in faith healing. In United States v. Divino,30 the accused, who was not a licensed physician, in an attempt to cure the victim of ulcers in her feet, wrapped a piece of clothing which had been soaked in petroleum around the victim's feet and then lighted the clothing, thereby causing injuries to the victim. The Court held the accused liable for reckless imprudence resulting in physical injuries. It was noted that the accused had no intention to cause an evil but rather to remedy the victim's ailment. In another case, People v. Vda. de Golez,31 the Court ruled that the proper charge to file against a non-medical practitioner, who had treated the victim despite the fact that she did not possess the necessary technical knowledge or skill to do so and caused the latter's death, was homicide through reckless imprudence. The trial court's reliance on the rule that criminal intent is presumed from the commission of an unlawful act is untenable because such presumption only holds in the absence of proof to the contrary.32 The facts of the case indubitably show the absence of intent to kill on the part of the accused-appellants. Indeed, the trial court's findings can be sustained only if the circumstances of the case are ignored and the Court limits itself to the time when accusedappellants undertook their unauthorized "treatment" of the victim. Obviously, such an evaluation of the case cannot be allowed. Consequently, treachery cannot be appreciated for in the absence of intent to kill, there is no treachery or the deliberate employment of means, methods, and manner of execution to ensure the safety of the accused from the defensive or retaliatory attacks coming from the victim.33 Viewed in this light, the acts which the trial court saw as manifestations of treachery in fact relate to efforts by accused-appellants to restrain Randy Luntayao so that they can effect the cure on him. On the other hand, there is no merit in accused-appellants' contention that the testimony of prosecution eyewitness Honey Fe Abella is not credible. The Court is more than convinced of Honey Fe's credibility. Her testimony is clear, straightforward, and is far from having been coached or contrived. She was only a few meters away from the kitchen where accusedappellants conducted their "pray-over" healing session not to mention that she had a good vantage point as the kitchen had no roof nor walls but only a pantry. Her testimony was corroborated by the autopsy findings of Dr. Mendez who, consistent with Honey Fe's testimony, noted fractures on the third left rib and on the base of the victim's skull. With regard to Dr. Mendez's failure to find any stab wound in the victim's body, he himself had explained that such could be due to the fact that at the time the autopsy was conducted, the cadaver was already in an advanced state of decomposition. Randy Luntayao's cadaver was exhumed 24 days after it had been buried. Considering the length of time which had elapsed and the fact that the cadaver had not been embalmed, it was very likely that the soft tissues had so decomposed that, as Dr. Mendez said, it was no longer possible to determine whether there was a stab wound. As for the other points raised by accused-appellants to detract the credibility of Honey Fe's testimony, the same appear to be only minor and trivial at best. Accused-appellants contend that the failure of the prosecution to present the testimony of Frances Claire Rivera as well as the knife used in stabbing Randy Luntayao puts in doubt the

prosecution's evidence. We do not think so. The presentation of the knife in evidence is not indispensable.34 Finally, accused-appellants make much of the fact that although the case was tried under Judge Renato C. Dacudao, the decision was rendered by Judge Galicano Arriesgado who took over the case after the prosecution and the defense had rested their cases. 35 However, the fact that the judge who wrote the decision did not hear the testimonies of the witnesses does not make him less competent to render a decision, since his ruling is based on the records of the case and the transcript of stenographic notes of the testimonies of the witnesses.36 Second. The question now is whether accused-appellants can be held liable for reckless imprudence resulting in homicide, considering that the information charges them with murder. We hold that they can. Rule 120 of the Revised Rules of Criminal Procedure provides in pertinent parts: SEC. 4. Judgment in case of variance between allegation and proof . When there is variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved. SEC. 5. When an offense includes or is included in another. An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form part of those constituting the latter. In Samson v. Court of Appeals,37 the accused were charged with, and convicted of, estafa through falsification of public document. The Court of Appeals modified the judgment and held one of the accused liable for estafa through falsification by negligence. On appeal, it was contended that the appeals court erred in holding the accused liable for estafa through negligence because the information charged him with having wilfully committed estafa. In overruling this contention, the Court held: While a criminal negligent act is not a simple modality of a willful crime, as we held in Quizon v. Justice of the Peace of Bacolor, G.R. No. L-6641, July 28, 1955, but a distinct crime in itself, designated as a quasi offense in our Penal Code, it may however be said that a conviction for the former can be had under an information exclusively charging the commission of a willful offense, upon the theory that the greater includes the lesser offense. This is the situation that obtains in the present case. Appellant was charged with willful falsification but from the evidence submitted by the parties, the Court of Appeals found that in effecting the falsification which made possible the cashing of the checks in question, appellant did not act with criminal intent but merely failed to take proper and adequate means to assure himself of the identity of the real claimants as an ordinary prudent man would do. In other words, the information alleges acts which charge willful falsification but which turned out to be not willful but negligent. This is a case covered by the rule when there is a variance between the allegation and proof. . . .

The fact that the information does not allege that the falsification was committed with imprudence is of no moment for here this deficiency appears supplied by the evidence submitted by appellant himself and the result has proven beneficial to him. Certainly, having alleged that the falsification has been willful, it would be incongruous to allege at the same time that it was committed with imprudence for a charge of criminal intent is incompatible with the concept of negligence. In People v. Fernando,38 the accused was charged with, and convicted of, murder by the trial court. On appeal, this Court modified the judgment and held the accused liable for reckless imprudence resulting in homicide after finding that he did not act with criminal intent. Third. Coming now to the imposable penalty, under Art. 365, reckless imprudence resulting in homicide is punishable by arresto mayor in its maximum period to prision correccional in its medium period. In this case, taking into account the pertinent provisions of Indeterminate Sentence Law, the accused-appellants should suffer the penalty of four (4) months of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum. As to their civil liability, accused-appellants should pay the heirs of Randy Luntayao an indemnity in the amount of P50,000.00 and moral damages also in the amount of P50,000.00.39 In addition, they should pay exemplary damages in the amount of P30,000.00 in view of accused-appellants' gross negligence in attempting to "cure" the victim without a license to practice medicine and to give an example or correction for the public good. 40 WHEREFORE, the decision of the Regional Trial Court, Branch 14, Cebu City, is AFFIRMED with the MODIFICATION that accused-appellants are hereby declared guilty of reckless imprudence resulting in homicide and are each sentenced to suffer an indeterminate prison term of four (4) months of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum. In addition, accused-appellants are ORDERED jointly and severally to pay the heirs of Randy Luntayao indemnity in the amount of P50,000.00, moral damages in the amount of P50,000.00, and exemplary damages in the amount of P30,000.00. SO ORDERED. Bellosillo, Buena, and De Leon, Jr., JJ., concur Quisumbing, J., on leave.

FIRST DIVISION [G.R. No. 153591. February 23, 2004] PEOPLE OF THE PHILIPPINES, appellee, vs. RENATO GARCIA y ROMANO, appellant. DECISION YNARES-SANTIAGO, J.: Appellant Renato Garcia y Romano was charged with Murder before the Regional Trial Court of Quezon City, Branch 87, in Criminal Case No. Q-98-79961 in an Information[1] which reads: That on or about the 22 day of May, 1998, in Quezon City, Philippines, the said accused, being then the driver and/or person in charge of an Isuzu Jitney bearing Plate No. NPJ-948 did then and there unlawfully and feloniously drive, manage and operate the same along Zabarte Road in said City, in a careless, reckless, negligent and impudent manner, by then and there making the said vehicle run at a speed greater than was reasonable and proper without taking the necessary precaution to avoid accident to person/s of the traffic at said place at the time, causing as consequence of his said carelessness, negligence, impudence and lack of precaution, the said vehicle so driven, managed and operated by him to hit and bump, as in fact it hit and bumped Sanily Billon y Trinidad, a pedestrian, thereafter, with intent to kill, qualified by evident premeditation and use of motor vehicle, did then and there willfully, unlawfully and feloniously ran said vehicle over the victim thereby causing her serious and mortal wounds which were the direct and immediate cause of her untimely death, to the damage and prejudice of the heirs of the said Sanily Billon y Trinidad. CONTRARY TO LAW.
nd

Appellant admitted having ran over the victim, but claimed that it was an accident. He narrated that at around noon on May 22, 1998, while driving his passenger jeepney along Zabarte Road, he saw a boy crossing the street followed by the victim. While the vehicle was running, he heard a thud. He immediately applied his breaks and alighted to check what it was. He saw to his horror a girl sprawled underneath his vehicle between the front and the rear tires. He and the victims brother rushed the girl to the Sta. Lucia Hospital, but they transferred her to the Quezon City General Hospital which has better facilities. A week later, he learned that the victim died. On May 2, 2002, the trial court rendered judgment,[3] finding appellant guilty beyond reasonable doubt of Murder and sentenced him to suffer the penalty of reclusion perpetua, the dispositive portion of which reads:[4] WHEREFORE, judgment is hereby rendered finding accused guilty beyond reasonable doubt of the crime of Murder, for which, said RENATO GARCIA y ROMANO is hereby sentenced to suffer the penalty ofreclusion perpetua and to indemnify the heirs of Sanily Billon the sum of One Hundred and Twenty Three Thousand and Five Hundred Pesos (P123,500.00) as actual damages including attorneys fees; Fifty Thousand Pesos (P50,000.00) as civil indemnity for the death of Sanily and Five Hundred Thousand Pesos (P500,000.00) as moral damages. Cost against the accused. SO ORDERED. The trial court held that appellant is guilty of murder qualified by evident premeditation because he deliberately ran over the slumped body of the victim. Hence this appeal, raising the following errors, to wit: I

On arraignment, appellant pleaded not guilty. Thereafter, trial on the merits followed. The prosecution alleged that at around 12:00 noon of May 22, 1998, Bentley Billon and his younger sister, Sanily, boarded a passenger jeepney on their way to Sacred Heart School in Barangay Kaligayahan, Novaliches, Quezon City to attend remedial classes. They alighted on Zabarte Road in front of the school. Bentley crossed the street and waited on the center island for Sanily to cross. While Sanily was crossing the street, a passenger jeepney driven by appellant, coming from Camarin and heading towards Quirino Highway, hit her on the left side of the body. Sanily fell and was thrown to the ground a meter away from the vehicle. The jeepney stopped. But as Bentley was running towards his sister, the vehicle suddenly accelerated with its front tire running over Sanilys stomach. Bentley and appellant pulled Sanily, who was writhing in excruciating pain, from underneath the vehicle and brought her to the Sta. Lucia Hospital but due to lack of medical facilities, she was transferred to the Quezon City General Hospital (QCGH) where she was operated. However, she died four days later. Dr. Emmanuel Reyes,[2] Medico-legal of the Southern Police District, Fort Bonifacio, testified that the attending physician, Dr. Santiago C. Sagad, noted lacerations in Sanilys liver and spleen which was caused by a blunt/strong force on the victims body, resulting to her death due to internal bleeding. He opined that the blunt force may have also caused lacerations in the victims intestine and the abrasions on the arm, from the elbow to the shoulder could be the result of the skins contact with a rough surface. THE TRIAL COURT GRAVELY ERRED IN APPRECIATING AGAINST ACCUSED-APPELLANT THE QUALIFYING CIRCUMSTANCE OF EVIDENT PREMEDITAION II THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED GUILTY BEYOND REASONABLE BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER AS CHARGED. The issue to be resolved is whether or not appellant is guilty of murder or reckless imprudence resulting in homicide. Appellant argues that the trial court gravely erred in finding that the qualifying circumstance of evident premeditation attended the commission of the offense. He contends that the mere allegation by the prosecution that he bumped the victim and intentionally ran over her body is not sufficient to establish evident premeditation. He claims that he did not intentionally run over the victim when his vehicle bumped her because he was rattled and was no longer aware of what he was doing.

We find from a careful review of the facts on record that the unfortunate incident was more the result of reckless imprudence than of malicious intent. Therefore, the trial court erred in convicting appellant of the crime of murder qualified by evident premeditation. The elements of evident premeditation are: (1) a previous decision by the appellant to commit the crime; (2) an overt act/acts manifestly indicating that the appellant clung to his determination; and (3) a lapse of time between the decision to commit the crime and its actual execution sufficient to allow appellant to reflect upon the consequences of his acts. The victims brother, Bentley, testified that the vehicle stopped after it bumped the victim, but it moved forward and ran over the prostrate body of her sister. From his narration, we find that no sufficient time elapsed for appellant to decide to commit the crime and reflect on its consequences. Moreover, there was no showing that appellant performed other overt acts to show that he was determined to commit murder. The essence of evident premeditation is that the execution of the criminal act must be preceded by cool thought and reflection upon the resolution to carry out the criminal intent, during the space of time sufficient to arrive at a calm judgment.[5] These circumstances do not obtain in the case at bar. Appellant could have reacted on instinct and relied on sheer impulse to respond to the situation at hand. While it is possible that appellant deliberately ran over the victim, it is equally possible, if not more probable, that the vehicle moved forward because appellant failed to control its momentum. Indeed, this is more consistent with the unrebutted evidence that the jeepney, which had no handbrake, was moving fast and that appellant became confused when the accident occurred. Furthermore, appellants act of bringing the victim to the hospital despite numerous opportunities to flee from the scene is more compatible with a state of mind devoid of criminal intent. In view of the gravity of the offense involved, the trial court should have been more circumspect in weighing the evidence of both parties. Our own evaluation of the evidence reveals that appellant had no intention to kill the victim. As such, he cannot be held liable for an intentional felony. All reasonable doubt intended to demonstrate negligence, and not criminal intent, must be resolved in favor of appellant.[6] Thus, appellant is guilty of reckless imprudence resulting in homicide defined in Article 365 of the Revised Penal Code, as amended. In U.S. v. Maleza,[7] we explained the rationale behind this crime 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. In intentional crimes, the act itself is punished; in negligence or imprudence, what is principally penalized is the mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the imprudencia punible.[8] Article 365 of the Revised Penal Code, as amended, states that reckless imprudence consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing such act. Compared to intentional felonies, such as homicide or murder, what takes the place of the element of malice or intention to commit a wrong or evil is the failure of the offender to take precautions due to lack of skill taking into account his employment, or occupation, degree of intelligence, physical condition, and other circumstances regarding persons, time, and place. [9]

Appellant showed an inexcusable lack of precaution when he disregarded a traffic sign cautioning motorists to slow down[10] and drove his vehicle in full speed despite being aware that he was traversing a school zone and pedestrians were crossing the street. He should have observed due diligence of a reasonably prudent man by slackening his speed and proceeding cautiously while passing the area. The imposable penalty, under Art. 365 (2)[11] of the Revised Penal Code, homicide resulting from reckless imprudence in the use of motor vehicle is prision correccional in its medium and maximum periods, which ranges from two (2) years, four (4) months and one (1) day to six (6) years. Under Article 65 of the Revised Penal Code, the penalty shall be divided into three equal portions of time, each of which shall form one period. There being no aggravating or mitigating circumstance, the proper penalty shall be within the medium period, which is three (3) years, six (6) months and twenty-one (21) days to four (4) years, nine (9) months and ten (10) days. Applying the provisions of the Indeterminate Sentence Law, appellant is entitled to a minimum term to be taken from the penalty next lower in degree, which is arresto mayor, maximum to prision correccional, minimum. Accordingly, appellant should be sentenced to an indeterminate penalty of four (4) months and one (1) day of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum.[12] The trial court correctly awarded P50,000.00 as civil indemnity. However, the award of moral damages in the amount of P500,000.00 should be reduced to P50,000.00. [13] The award of P30,000.00 as actual damages must likewise be modified. The mother of the victim presented receipts that they, in fact, spent P58,257.90[14] for hospital bills and funeral expenses. The fact that she received P40,000.00 from insurance will not affect the award of actual damages.[15] The award of exemplary damages is deleted for lack of factual basis. WHEREFORE, in view of the foregoing, the Decision of the Regional Trial Court of Quezon City, Branch 87, in Civil Case No. Q-98-79961, convicting appellant of the crime of murder is REVERSED and SET ASIDE. Appellant Renato Garcia y Romano is found guilty beyond reasonable doubt of the crime reckless imprudence resulting in homicide, and he is sentenced to suffer an indeterminate prison term of four (4) months and one (1) day of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum. Appellant is ordered to pay the heirs of the victim, P50,000.00 as civil indemnity, P58,257.90 as actual damages and P50,000.00 as moral damages. Costs de oficio. SO ORDERED. Davide, Jr., C.J. (Chairman), Panganiban, Carpio and Azcuna, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC DECISION March 31, 1933 G.R. No. L-37673 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. POTENCIANO TANEO, defendant-appellant. Carlos S. Tan for appellant. Attorney-General Jaranilla for appellee. J.: Potenciano Tadeo live with his wife in his parents house of the barrio of Dolores, municipality of Ormoc, Leyte. On January 16, 1932, a fiesta was being celebrated in the said barrio and visitors were entertained in the house. Among them were Fred Tanner and Luis Malinao. Early that afternoon, Potenciano Taneo, went to sleep and while sleeping, he suddenly got up, left the room bolo in hand and, upon meeting his wife who tried to stop him, he wounded her in the abdomen. Potenciano Taneo attacked Fred Tanner and Luis Malinao and tried to attack his father after which he wounded himself. Potencianos wife who was then seven months pregnant, died five days later as a result of her wound, and also the foetus which was asphyxiated in the mothers womb. An information for parricide was filed against Potenciano Taneo, and upon conviction he was sentenced by the trial court to reclusion perpetua with the accessory penalties, to indemnity the heirs of the deceased in the sum of P500 and to pay the costs. From this sentence, the defendant appealed. It appears from the evidence that the day before the commission of the crime the defendant had a quarrel over a glass of tuba with Enrique Collantes and Valentin Abadilla, who invited him to come down to fight, and when he was about to go down, he was stopped by his wife and his mother. On the day of the commission of the crime, it was noted that the defendant was sad and weak, and early in the afternoon he had a severe stomachache which made it necessary for him to go to bed. It was then when he fell asleep. The defendant states that when he fell asleep, he dreamed that Collantes was trying to stab him with a bolo while Abadilla held his feet, by reason of which he got up; and as it seemed to him that his enemies were inviting him to come down, he armed himself with a bolo and left the room. At the door, he met his wife who seemed to say to him that she was wounded. Then he fancied seeing his wife really wounded and in desperation wounded himself. As his enemies seemed to multiply around him, he attacked everybody that came his way. The evidence shows that the defendant not only did not have any trouble with his wife, but that he loved her dearly. Neither did he have any dispute with Tanner and Malinao, or have any motive for assaulting them. Our conclusion is that the defendant acted while in a dream and his acts, with which he is charged, were not voluntary in the sense of entailing criminal liability. In arriving at this conclusion, we are taking into consideration the fact that the apparent lack of a motive for committing a criminal act does not necessarily mean that there are none, but that simply they are not known to us, for we cannot probe into depths of ones conscience where they may be found, hidden away and inaccessible to our observation. We are also

conscious of the fact that an extreme moral perversion may lead a man commit a crime without a real motive but just for the sake of committing it. But under the special circumstances of the case, in which the victim was the defendants own wife whom he dearly loved, and taking into consideration the fact that the defendant tried to attack also his father, in whose house and under whose protection he lived, besides attacking Tanner and Malinao, his guests, whom he himself invited as may be inferred from the evidence presented, we find not only a lack of motives for the defendant to voluntarily commit the acts complained of, but also motives for not committing said acts. Doctor Serafica, an expert witness in this case, is also of the same opinion. The doctor stated that considering the circumstances of the case, the defendant acted while in a dream, under the influence of an hallucination and not in his right mind. We have thus far regarded the case upon the supposition that the wound of the deceased was direct result of the defendants act performed in order to infl ict it. Nevertheless we may say further that the evidence does not clearly show this to have been the case, but that it may have been caused accidentally. Nobody saw how the wound was inflicted. The defendant did not testify that he wounded his wife. He only seemed to have heard her say that she was wounded. What the evidence shows is that the deceased, who was in the sala, intercepted the defendant at the door of the room as he was coming out. The defendant did not dream that he was assaulting his wife but he was defending himself from his enemies. And so, believing that his wife was really wounded, in desperation, he stabbed himself. In view of all these considerations, and reserving the judgment appealed from, the courts finds that the defendant is not criminally liable for the offense with which he is charged, and it is ordered that he be confined in the Government insane asylum, whence he shall not be released until the director thereof finds that his liberty would no longer constitute a menace, with costs de oficio. So ordered. Street, Ostrand, Abad Santos, and Butte, JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 147437 May 8, 2009

Arnolds car to the leftwas established on the frontal center of the latter vehicle which thus caused the left-hand side of its hood to curl upward.15 Arnold immediately summoned to the scene of the collision Patrolman Ernesto Santos (Patrolman Santos),16 a traffic investigator of the Mandaluyong Police Force who at the time was manning the police outpost in front of the Philippine Overseas Employment Administration Building.17 Patrolman Santos interrogated both petitioner and Arnold and made a sketch depicting the relative positions of the two colliding vehicles after the impact.18 The sketch, signed by both petitioner and Arnold and countersigned by Patrolman Santos, shows petitioners car which, it seems, was able to keep its momentum and general direction even upon impact was stalled along Ortigas Avenue a few feet away from the intersection and facing the direction of San Juan whereas Arnolds car had settled on the outer lane of Ortigas Avenue with its rear facing the meeting point of the median lines of the intersecting streets at a 45degree angle.19 At the close of the investigation, a traffic accident investigation report (TAIR)20 was forthwith issued by P/Cpl. Antonio N. Nato of the Eastern Police District. The report revealed that at the time of the collision, Arnolds car, which had "no right of way,"21 was "turning left" whereas petitioners car was "going straight" and was "exceeding lawful speed." 22 It also indicated that the vision of the drivers was obstructed by the "center island flower bed." 23 Petitioner was subsequently charged before the Regional Trial Court of Pasig City with reckless imprudence resulting in damage to property.24 He entered a negative plea on arraignment.25 At the ensuing trial, Patrolman Santos admitted having executed the sketch which depicts the post-collision positions of the two vehicles.26 Arnolds testimony established that his vehicle was at a full stop at the intersection when the incident happened. 27 Told by the trial court to demonstrate how the incident transpired, he executed a sketch which showed that his car had not yet invaded the portion of the road beyond the median line of the island and that the path taken by petitioners car, depicted by broken lines, came swerving from the outer lane of the road to the left and rushing toward the island where Arnolds car was executing a turn.28 On cross-examination, he admitted the correctness of the entry in the TAIR to the effect that he was turning left when hit by petitioners car, 29 but he claimed on re-direct examination that he had stopped at the intersection in order to keep the traffic open to other vehicles and that it was then that petitioner bumped his car. On re-cross examination, however, he stated that he had brought his car to a full stop before turning left but that the front portion thereof was already two (2) feet into the other lane of Ortigas Avenue and well beyond the median line of the traffic island.30 Antonio Litonjua (Antonio), the father of Arnold in whose name the Volkswagen car was registered, testified that the estimation of the cost of repairs to be made on the car was initially made by SKB Motors Philippines, Inc. The estimation report dated 30 June 1988 showed the total cost of repairs to be P73,962.00. The necessary works on the car, according to Antonio, had not been performed by SKB Motors because the needed materials had not been delivered.31 Meanwhile, SKB Motors allegedly ceased in its operation, so Antonio procured another repair estimation this time from Fewkes Corporation.32 The estimation report was dated 13 December 1991, and it bloated the total cost of repairs to P139,294.00.33 Ricardo Abrencia, resident manager of Fewkes Corporation, admitted that

LARRY V. CAMINOS, JR., Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION TINGA, J.: The right of a person using public streets and highways for travel in relation to other motorists is mutual, coordinate and reciprocal.1 He is bound to anticipate the presence of other persons whose rights on the street or highway are equal to his own.2Although he is not an insurer against injury to persons or property, 3 it is nevertheless his duty to operate his motor vehicle with due and reasonable care and caution under the circumstances for the safety of others4 as well as for his own.5 This Petition for Review6 seeks the reversal of the Decision7 of the Court of Appeals in CAG.R. CR No. 14819 dated 28 February 1995. The assailed decision affirmed the judgment of conviction8 rendered by the Regional Trial Court of Pasig City, Branch 163 in Criminal Case No. 76653one for reckless imprudence resulting in damage to propertyagainst petitioner Larry V. Caminos, Jr. but reduced the latters civil liability on account of the finding that the negligence of Arnold Litonjua, the private offended party, had contributed to the vehicular collision subject of the instant case. The case is rooted on a vehicular collision that happened on the night of 21 June 1988 at the intersection of Ortigas Avenue and Columbia Street in Mandaluyong City, right in front of Gate 6 of East Greenhills Subdivision. The vehicles involved were a Mitsubishi Super Saloon9 driven by petitioner and a Volkswagen Karmann Ghia10driven by Arnold Litonjua (Arnold). The mishap occurred at approximately 7:45 in the evening.11 That night, the road was wet.12 Arnold, who had earlier passed by Wack Wack Subdivision, was traversing Ortigas Avenue toward the direction of Epifanio Delos Santos Avenue. He prepared to make a left turn as he reached the intersection of Ortigas Avenue and Columbia Street, and as soon as he had maneuvered the turn through the break in the traffic island the Mitsubishi car driven by petitioner suddenly came ramming into his car from his right-hand side. Petitioner, who was also traversing Ortigas Avenue, was headed towards the direction of San Juan and he approached the same intersection from the opposite direction. 13 The force exerted by petitioners car heaved Arnolds car several feet away from the b reak in the island, sent it turning 180 degrees until it finally settled on the outer lane of Ortigas Avenue.14 It appears that it was the fender on the left-hand side of petitioners car that made contact with Arnolds car, and that the impactwhich entered from the right-hand side of

he personally made and signed the said estimation report and that Antonio had already delivered a check representing the payment for half of the total assessment.34 Petitioner, the lone defense witness, was a company driver in the employ of Fortune Tobacco, Inc. assigned to drive for the company secretary, Mariano Tanigan, who was with him at the time of the incident. In an effort to exonerate himself from liability, he imputed negligence to Arnold as the cause of the mishap, claiming that that he, moments before the collision, was actually carefully traversing Ortigas Avenue on second gear. He lamented that it was Arnolds car which bumped his car and not the other way around and that he had not seen Arnolds car coming from the left side of the intersectionwhich seems to suggest that Arnolds car was in fact in motion or in the process of making the turn when the collision occurred. His speed at the time, according to his own estimate, was between 25 and 30 kph because he had just passed by the stoplight located approximately 100 meters away at the junction of Ortigas Avenue and EDSA, and that he even slowed down as he approached the intersection.35 In its 18 September 1992 Decision,36 the trial court found petitioner guilty as charged. The trial court relied principally on the sketch made by Patrolman Santos depicting the postcollision positions of the two vehiclesthat piece of evidence which neither of the parties assailed at the trialand found that of the two conflicting accounts of how the collision happened it was Arnolds version that is consistent with the evidence. It pointed out that j ust because Arnold had no right of way, as shown in the TAIR, does not account for fault on his part since it was in fact petitioners car that came colliding with Arnolds car. It concluded that petitioner, by reason of his own admission that he did not notice Arnolds car at the intersection, is solely to be blamed for the incident especially absent any showing that there was any obstruction to his line of sight. Petitioner, according to the trial court, would have in fact noticed on-coming vehicles coming across his path had he employed proper precaution. Accordingly, the trial court ordered petitioner to pay civil indemnity in the amount of P139,294.00 as well as a fine in the same amount. The Court of Appeals agreed with the factual findings of the trial court. In its Decision dated 28 February 1995, the appellate court affirmed the judgment of conviction rendered by the trial court against petitioner. However, it mitigated the award of civil indemnity on its finding that Arnold himself was likewise reckless in maneuvering a left turn inasmuch as he had neglected to look out, before entering the other lane of the road, for vehicles that could likewise be possibly entering the intersection from his right side. 37 This notwithstanding, petitioner was still unsatisfied with the ruling of the appellate court. Seeking an acquittal, he filed the present petition for review in which he maintains Arnolds own negligence was the principal determining factor that caused the mishap and which should thus defeat any claim for damages. In declaring him liable to the charge despite the existence of negligence attributable to Arnold, petitioner believes that the Court of Appeals had misapplied the principle of last clear chance in this case. The Office of the Solicitor General (OSG), in its Comment, 38 argues that petitioners negligence is the proximate cause of the collision and that Arnold Litonjuas negligence was contributory to the accident which, however, does not bar recovery of damages. Additionally, it recommends the reduction of both the fine and the civil indemnity as the same are beyond what the prosecution was able to prove at the trial. The Court denies the petition.

Reckless imprudence generally defined by our penal law consists in voluntarily but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place.39 Imprudence connotes a deficiency of action. It implies a failure in precaution or a failure to take the necessary precaution once the danger or peril becomes foreseen.40 Thus, something more than mere negligence in the operation of a motor vehicle is necessary to constitute the offense of reckless driving, and a willful and wanton disregard of the consequences is required. 41 Willful, wanton or reckless disregard for the safety of others within the meaning of reckless driving statutes has been held to involve a conscious choice of a course of action which injures another, either with knowledge of serious danger to others involved, or with knowledge of facts which would disclose the danger to any reasonable person.42 Hence, in prosecutions for reckless imprudence resulting in damage to property, whether or not one of the drivers of the colliding automobiles is guilty of the offense is a question that lies in the manner and circumstances of the operation of the motor vehicle, 43 and a finding of guilt beyond reasonable doubt requires the concurrence of the following elements, namely, (a) that the offender has done or failed to do an act; (b) that the act is voluntary; (c) that the same is without malice; (d) that material damage results; and (e) that there has been inexcusable lack of precaution on the part of the offender.44 Among the elements constitutive of the offense, what perhaps is most central to a finding of guilt is the conclusive determination that the accused has exhibited, by his voluntary act without malice, an inexcusable lack of precaution because it is that which supplies the criminal intent so indispensable as to bring an act of mere negligence and imprudence under the operation of the penal law.45 This, because a conscious indifference to the consequences of the conduct is all that that is required from the standpoint of the frame of mind of the accused,46that is, without regard to whether the private offended party may himself be considered likewise at fault. Inasmuch as the Revised Penal Code, however, does not detail what particular act or acts causing damage to property may be characterized as reckless imprudence, certainly, as with all criminal prosecutions, the inquiry as to whether the accused could be held liable for the offense is a question that must be addressed by the facts and circumstances unique to a given case. Thus, if we must determine whether petitioner in this case has shown a conscious indifference to the consequences of his conduct, our attention must necessarily drift to the most fundamental factual predicate. And we proceed from petitioners contention that at the time the collision took place, he was carefully driving the car as he in fact approached the intersection on second gear and that his speed allegedly was somewhere between 25 and 30 kph which under normal conditions could be considered so safe and manageable as to enable him to bring the car to a full stop when necessary. Aside from the entry in the TAIR, however, which noted petit ioners speed to be beyond what is lawful, the physical evidence on record likewise seems to negate petitioners contention. The photographs taken of Arnolds car clearly show that the extent of the damage to it could not have been caused by petitioners c ar running on second gear at the speed of 25-30 kph. The fact that the hood of Arnolds car was violently wrenched as well as the fact that on impact the car even turned around 180 degrees and was hurled several feet away from the

junction to the outer lane of Ortigas Avenuewhen in fact Arnold had already established his turn to the left on the inner lane and into the opposite laneclearly demonstrate that the force of the collision had been created by a speed way beyond what petitioners estimation. Rate of speed, in connection with other circumstances, is one of the principal considerations in determining whether a motorist has been reckless in driving an automobile, 47 and evidence of the extent of the damage caused may show the force of the impact from which the rate of speed of the vehicle may be modestly inferred.48While an adverse inference may be gathered with respect to reckless driving49 from proof of excessive speed under the circumstances 50 as in this case where the TAIR itself shows that petitioner approached the intersection in excess of lawful speedsuch proof raises the presumption of imprudent driving which may be overcome by evidence,51 or, as otherwise stated, shifts the burden of proof so as to require the accused to show that under the circumstances he was not driving in a careless or imprudent manner.52 We find, however, that petitioner has not been able to discharge that burden inasmuch as the physical evidence on record is heavy with conviction way more than his bare assertion that his speed at the time of the incident was well within what is controllable. Indeed, the facts of this case do warrant a finding that petitioner, on approach to the junction, was traveling at a speed far greater than that conveniently fixed in his testimony. Insofar as such facts are consistent with that finding, their truth must reasonably be admitted. 53 Speeding, moreover, is indicative of imprudent behavior because a motorist is bound to exercise such ordinary care and drive at a reasonable rate of speed commensurate with the conditions encountered on the road. What is reasonable speed, of course, is necessarily subjective as it must conform to the peculiarities of a given case but in all cases, it is that which will enable the driver to keep the vehicle under control and avoid injury to others using the highway.54 This standard of reasonableness is actually contained in Section 35 of R.A. No. 4136. It states: SEC. 35. Restriction as to speed.(a) Any person driving a motor vehicle on a highway shall drive the same at a careful and prudent speed, not greater nor less than is reasonable and proper, having due regard for the traffic, the width of the highway, and of any other condition then and there existing; and no person shall drive any motor vehicle upon a highway at such speed as to endanger the life, limb and property of any person, nor at a speed greater than will permit him to bring the vehicle to a stop within the assured clear distance ahead. Even apart from statutory regulations as to speed, a motorist is nevertheless expected to exercise ordinary care and drive at a reasonable rate of speed commensurate with all the conditions encountered 55 which will enable him to keep the vehicle under control and, whenever necessary, to put the vehicle to a full stop to avoid injury to others using the highway. 56 It is must be stressed that this restriction on speed assumes more importance where the motorist is approaching an intersection. Ordinary or reasonable care in the operation of a motor vehicle at an intersection would naturally require more precaution than is necessary when driving elsewhere in a street or highway. 57 A driver approaching an intersection is generally under duty, among others, to be vigilant and to have the vehicle under control as to be able to stop at the shortest possible notice, 58 that is, he must look for vehicles that might be approaching from within the radius that denotes the limit of danger.59

Since compliance with this duty is measured by whether an approaching motorist has exercised the level of precaution required under the circumstances, then with more reason that he exhibit a relatively higher level of care when the intersection is blind at the point where the roads meet. In other words, where the view at an intersection is obstructed and an approaching motorist cannot get a good view to the right or left until he is close to the intersection, prudence would dictate that he take particular care to observe the traffic before entering the intersection or otherwise use reasonable care to avoid a collision, 60 which means that he is bound is to move with the utmost caution until it is determinable that he can proceed safely and at the slowest speed possible61 so that the vehicle could be stopped within the distance the driver can see ahead.62 On this score, what brings certain failure in petitioners case is his own admission that he had not seen Arnolds car making a left turn at the intersection. Of course, there had been an arduous debate at the trial as to whether Arnolds car was in mo tion or at a full stop at the intersection moments before the collision; nevertheless, inasmuch as he (Arnold), as shown by the evidence, had been able to establish himself at the intersection significantly ahead of petitioner, it defies logic to accord even a semblance of truth to petitioners assertion that he had not seen Arnolds car entering the intersection laterally from his left especially when the said car admittedly had already taken two feet of the other lane of the road the lane on which petitioner was proceeding to crossand well beyond the median line of the intersecting road on which Arnold proceeded after making the turn. Indeed, not even the fact that the view at the intersection was blocked by the flower bed on the traffic island could provide an excuse for petitioner as it has likewise been established that he approached the intersection at such a speed that could not, as in fact it did not, enable him to arrest his momentum and forestall the certainty of the collision. It can only be surmised at this point that petitioner had inexcusably fallen short of the standard of care in a situation which called for more precaution on the highway in failing to make an observation in the interest at least of his own safety whether or not it was safe to enter the crossing. Since he is chargeable with what he should have observed only had he exercised the commensurate care required under the circumstances of the case, the inescapable conclusion is that he had inexcusably breached the elementary duties of a responsible, prudent and reasonable motorist. In general, the degree of care and attention required of a driver in a particular case in exercising reasonable care will vary with and must be measured in the light of all the surrounding circumstances, such that it must be commensurate with the dangers which are to be anticipated and the injuries which are likely to result from the use of the vehicle. 63 In other words, he must observe a sense of proportionality between precaution and the peculiar risks attendant or even inherent in the condition of the road64 which are open to ordinary observation.65 The ultimate test, in other words, is to be found in the reasonable foreseeability that harm might result if commensurate care is not exercised. It is not necessary, however, that a motorist actually foresee the probability of harm or that the particular injury which resulted was foreseeable; it would suffice that he, in the position of an ordinary prudent man, knowing what he knew or should have known, anticipate that harm of a general nature as that suffered was to materialize.66 The evidence in this case is teeming with suggestion that petitioner had failed to foresee the certainty of the collision that was about to happen as he entered the junction in question especially considering that his lateral vision at the intersection was blocked by the structures on the road. In the same way, he failed to solidly establish that such failure to foresee the danger lurking on the road could be deemed excusable as indeed his contention that he was running at a safe speed is totally negated by the evidence derived from the physical facts of the case.

Yet, petitioner clings to a chance of acquittal. In his petition, he theorizes that the negligence of Arnold, which according to the Court of Appeals was incipient in character, was actually the principal determining factor which caused the mishap and the fact that the TAIR indicated that Arnold had no right of way, it is he himself who had the status of a favored driver. The contention is utterly without merit. In traffic law parlance, the term "right of way" is understood as the right of one vehicle to proceed in a lawful manner in preference to another approaching vehicle under such circumstances of direction, speed and proximity as to give rise to a danger of collision unless one of the vehicles grants precedence to the other. 67 Although there is authority to the effect that the right of way is merely of statutory creation and exists only according to express statutory provision,68 it is generally recognized, where no statute or ordinance governs the matter, that the vehicle first entering an intersection is entitled to the right of way, and it becomes the duty of the other vehicle likewise approaching the intersection to proceed with sufficient care to permit the exercise of such right without danger of collisions. 69 In our setting, the right of way rule is governed by Section 42 of Republic Act (R.A.) No. 4136,70 which materially provides: Section 42. Right of Way. (a) When two vehicles approach or enter an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right, except as otherwise hereinafter provided. The driver of any vehicle traveling at an unlawful speed shall forfeit any right which he might otherwise have hereunder. (b) The driver of a vehicle approaching but not having entered an intersection shall yield the right of a way to a vehicle within such intersection or turning therein to the left across the line of travel of such first-mentioned vehicle, provided the driver of the vehicle turning left has given a plainly visible signal of intention to turn as required in this Act. x x x. The provision governs the situation when two vehicles approach the intersection from the same direction and one of them intends make a turn on either side of the road. But the rule embodied in the said provision, also prevalent in traffic statutes in the United States, has also been liberally applied to a situation in which two vehicles approach an intersection from directly opposite directions at approximately the same time on the same street and one of them attempts to make a left-hand turn into the intersecting street, so as to put the other upon his right, the vehicle making the turn being under the duty of yielding to the other.71 Nevertheless, the right of way accorded to vehicles approaching an intersection is not absolute in terms. It is actually subject to and is affected by the relative distances of the vehicles from the point of intersection.72 Thus, whether one of the drivers has the right of way or, as sometimes stated, has the status of a favored driver on the highway, is a question that permeates a situation where the vehicles approach the crossing so nearly at the same time and at such distances and speed that if either of them proceeds without regard to the other a collision is likely to occur.73 Otherwise stated, the statutory right of way rule under Section 42 of our traffic law applies only where the vehicles are approaching the intersection at approximately the same time and not where one of the vehicles enter the junction substantially in advance of the other.

Whether two vehicles are approaching the intersection at the same time does not necessarily depend on which of the vehicles enters the intersection first. Rather, it is determined by the imminence of collision when the relative distances and speeds of the two vehicles are considered.74 It is said that two vehicles are approaching the intersection at approximately the same time where it would appear to a reasonable person of ordinary prudence in the position of the driver approaching from the left of another vehicle that if the two vehicles continued on their courses at their speed, a collision would likely occur, hence, the driver of the vehicle approaching from the left must give the right of precedence to the driver of the vehicle on his right.751avvphi1 Nevertheless, the rule requiring the driver on the left to yield the right of way to the driver on the right on approach to the intersection, no duty is imposed on the driver on the left to come to a dead stop, but he is merely required to approach the intersection with his vehicle under control so that he may yield the right of way to a vehicle within the danger zone on his right.76 He is not bound to wait until there is no other vehicle on his right in sight before proceeding to the intersection but only until it is reasonably safe to proceed.77 Thus, in Adzuara v. Court of Appeals,78 it was established that a motorist crossing a thru-stop street has the right of way over the one making a turn; but if the person making the turn has already negotiated half of the turn and is almost on the other side so that he is already visible to the person on the thru-street, he is bound to give way to the former. Moreover, in a prosecution for reckless or dangerous driving, the negligence of the person who was injured or who was the driver of the motor vehicle with which the accuseds vehicle collided does not constitute a defense.79 In fact, even where such driver is said to be guilty of a like offense, proof thereof may never work favors to the case of the accused.80 In other words, proof that the offended party was also negligent or imprudent in the operation of his automobile bears little weight, if at all, at least for purposes of establishing the accuseds culpability beyond reasonable doubt. Hence, even if we are to hypothesize that Arnold was likewise negligent in neglecting to keep a proper lookout as he took a left turn at the intersection, such negligence, contrary to petitioners contention, will nevertheless not support an acquittal. At best, it will only determine the applicability of several other rules governing situations where concurring negligence exists and only for the purpose of arriving at a proper assessment of the award of damages in favor of the private offended party. But it must be asked: do the facts of the case support a finding that Arnold was likewise negligent in executing the left turn? The answer is in the negative. It is as much unsafe as it is unjust to assume that Arnold, just because the TAIR so indicated that he at the time had no right of way, that Arnold had performed a risky maneuver at the intersection in failing to keep a proper lookout for oncoming vehicles. In fact, aside f rom petitioners bare and selfserving assertion that Arnolds fault was the principal determining cause of the mishap as well as his allegation that it was actually Arnolds car that came colliding with his car, there is no slightest suggestion in the records that could tend to negate what the physical evidence in this case has established. Clearly, it was petitioners negligence, as pointed out by the OSG, that proximately caused the accident.1avvphi1 Finally, on the issue of damages, inasmuch as petitioner had not extended efforts to present countervailing evidence disproving the extent and cost of the damage sustained by Arnolds car, the award assessed and ordered by the trial court must stand.

All told, it must be needlessly emphasized that the measure of a motorists duty is such care as is, under the facts and circumstances of the particular case, commensurate with the dangers which are to be anticipated and the injuries which are likely to result from the use of the vehicle, and in proportion to or commensurate with the peculiar risk attendant on the circumstances and conditions in the particular case, 81 the driver being under the duty to know and to take into consideration those circumstances and factors affecting the safe operation of the vehicle which would be open to ordinary observation.82 WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. CR No. 14819 dated 28 February 1995 is REVERSED and SET ASIDE. The Decision of the Regional Trial Court of Pasig, Branch 163 in Criminal Case No. 76653 dated 18 September 1992 is REINSTATED. SO ORDERED