SECOND DIVISION

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

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

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

The accused, WILFREDO FELOTEO, appeared on the opposite side of the road and walked past Abrea and Abeleda. He was armed with an armalite rifle. Abeleda and Abrea recognized the accused, their
barriomate, as the moon was shining brightly. They did not pay much attention to the accused as Abeleda was playing "habulan" with Sotto. Without uttering a word, the accused aimed the armalite at Sotto and
pressed its trigger. Sotto was hit above the left chest and fell on the ground, face down. Abeleda and Abrea scampered away to find help, while the accused fled from the crime scene.[2] Ten (10) minutes later, Abeleda
and Abrea, accompanied by Barangay Tanod Tito Abrina and a certain Inyong Adion, returned to the locus criminis. They found Sotto dead.
Sotto was brought to the hospital for autopsy. The Autopsy Report showed that he sustained a gunshot wound, with the bullet entering the left side of his collarbone and exiting at the spinal cord. The bullet came
from an M-16 armalite rifle. He also had abrasions on the knees and face. Dr. Hew G. Curameng of the Palawan Provincial Hospital opined that Sotto fell on his knees before he slumped on the ground, face
down. There were no powder burns on his body, indicating that the victim was shot from a distance. The cause of death was massive blood loss secondary to gunshot wound.[3]
The firearm used in the shooting incident belongs to SPO2 Roman Adion. On May 6, 1993, SPO2 Adion went to the house of Teofisto Alaquin in Sitio Nagbaril. He brought with him his official service firearm, an
M-16 armalite rifle,[4] as he has been ordered to go to Jandanao the next day to investigate a land dispute. He slept early. At around 6:30 p.m., Alaquin woke him up and informed him that the accused stole his
armalite. SPO2 Adion, together with Nazario Adion and Frank Adion, immediately looked for the accused. They heard a gunshot coming from a distance of about four hundred (400) meters and rushed to the place
where it emanated. They saw Sotto lying prostrate on the road, shot on the chest. SPO2 Adion suspected that his armalite was used in the shooting incident and he continued his hunt for the accused. The next day,
May 7, 1993, at 5:00 a.m., he nabbed the accused in Sitio Cabugao, five (5) kilometers away from the crime scene. The accused surrendered the armalite to him. Upon inspection, SPO2 Adion found nineteen (19)
bullets left in the armalite. There were twenty (20) bullets inside the armalite chamber and magazine before it was stolen.[5]
SPO4 Jose Ansay, Chief of the Firearm and Explosive Unit of the Philippine National Police (PNP) in Tiniguiban, Puerto Princesa City, Palawan, affirmed that the accused was not duly licensed to carry a
firearm.[6]
The accused denied that he stole SPO2 Adion's armalite and alleged that the shooting of Sotto was an accident. He averred that on May 6, 1993, he was in his sister's house in Barangay Bintuan, Coron, when SPO2
Adion passed by and invited him over to the place of Teofisto Alaquin in Nagbaril. They boarded SPO2 Adion's tricycle and arrived at Nagbaril at about 3:00 p.m. Frank Adion dropped by the house of Alaquin and
borrowed the tricycle of SPO2 Adion. Frank Adion later returned on foot and told SPO2 Adion that the tricycle's engine broke down so he left it along the road. SPO2 Adion checked on his tricycle and left behind his
armalite rifle. Before leaving, he instructed the accused to wait for him at Alaquin's house.[7]
After thirty minutes, the accused decided to follow SPO2 Adion. He took the armalite and walked the road leading to Bintuan. At about 7:00 p.m., he met Sonny Sotto's group. They zigzagged as they walked. In
jest, the accused said to Sotto, "Boots, don't get near me, I'll shoot you." He pointed the armalite to Sotto and pressed its trigger, allegedly unaware that it was loaded. It fired and hit Sotto. The accused fled but was
apprehended by SPO2 Adion the following day. He told SPO2 Adion that he accidentally shot Sotto.[8]
After trial, the accused was found guilty as charged.[9] He was sentenced to suffer the penalties of reclusion perpetua, for murder, and imprisonment of twenty (20) years, for illegal possession of firearm. He was
further ordered to pay the heirs of Sotto the amount of fifty thousand pesos (P50,000.00), as civil indemnity.
In this appeal, appellant contends:
"THE TRIAL COURT ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCE OF TREACHERY AS ATTENDING THE COMMISSION OF THE CRIME ALLEGED AND IN HOLDING ACCUSEDAPPELLANT GUILTY OF MURDER IN THE KILLING OF SONNY SOTTO."
We affirm the judgment of conviction.
We reject the argument of the appellant that he should not have been convicted for murder as treachery was not duly established by the prosecution. Allegedly, Sotto knew of the impending attack for it was
frontal. Moreover, Sotto was warned, albeit jokingly, that he was going to be shot.
Under par. 16, Article 14 of the Revised Penal Code, the qualifying circumstance of treachery is present when the offender employs means, methods, or forms in the execution of the crime which tend directly and
especially to insure its execution without risk to himself arising from any defensive or retaliatory act which the victim might make.[10] The settled rule is that treachery can exist even if the attack is frontal if it is sudden
and unexpected, giving the victim no opportunity to repel it or defend himself. What is decisive is that the execution of the attack, without the slightest provocation from a victim who is unarmed, made it impossible for
the victim to defend himself or to retaliate.[11]

In the case at bar, treachery is present for there was a sudden attack against the unarmed Sotto. When Sotto and his friends encountered appellant on the road, they were in a "jovial mood" as they just came from
a drinking spree. Although they saw appellant carrying an armalite, they did not suspect anything untoward to happen. However, without any provocation, appellant shot Sotto. The fact that the attack was frontal
cannot negate treachery. The shooting was unexpected. There is no showing that the alleged warning given by appellant to Sotto afforded the latter sufficient time to defend himself. Indeed, Sotto could not defend
himself as he was unarmed and a bit drunk-- as observed by the appellant himself, the victim was walking in a zigzag manner. There was no way for Sotto to avoid the armalite bullets.
We now come to the penalty imposed on appellant for the illegal possession of firearm in view of the recent amendments to P.D. No. 1866 by R.A. No. 8294.
Appellant was convicted under Section 1 of P.D. No. 1866, the governing law at the time the crime was committed. It provides:
"SEC. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms, Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition.- The penalty
of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose or possess any firearm, part of firearm, ammunition of
machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed." (emphasis ours)
The penalty for the aggravated form of illegal possession of firearm under P.D. No. 1866 is death. Since at that time, the death penalty cannot be enforced in view of Article III (19) (1) of the 1987 Constitution,
appellant should have been sentenced to serve the penalty of reclusion perpetua,[12] not twenty (20) years of imprisonment.
Nonetheless, Republic Act No. 8294, amended P.D. No. 1866, by reducing the penalties for simple and aggravated forms of illegal possession of firearms.[13] The law now provides:
"Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition.- The penalty
of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000.00) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess
any low powered firearm such as rimfire handgun, .380 or .32 and other firearm of similar firepower, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or
ammunition: Provided, That no other crime was committed.
The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000.00) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in
diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .45 and also lesser caliber firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing
capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested.
If homicide or murder is committed with the use of unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. (emphasis ours)
xxx

xxx

xxx

Sec. 5. Coverage of the Term Unlicensed Firearm. - The term unlicensed firearm shall include:
1) firearms with expired license, or
2) unauthorized use of licensed firearm in the commission of the crime."
Clearly, the penalty for illegal possession of high powered firearm is prision mayor in its minimum period and a fine of P30,000.00. In case homicide or murder is committed with the use of unlicensed firearm, such use
of unlicensed firearm shall be merely considered as an aggravating circumstance.

The enactment of R.A. No. 8294 can be given retroactive effect as it favors the appellant.[14] So we held in People vs. Simon,[15] viz:
"Since obviously, the favorable provisions of Republic Act 7659 could neither have been involved or invoked in the present case, a corollary question would be whether this court, at the present stage, can sua
sponte apply the provisions of Article 22 to reduce the penalty to be imposed on appellant. That issue has likewise been resolved in the cited case of People vs. Moran, et al., ante., thus:
`x x x. The plain precept contained in article 22 of the Penal Code, declaring the retroactivity of penal laws in so far as they are favorable to persons accused of a felony, would be useless and nugatory if the courts of
justice were not under obligation to fulfill such duty, irrespective of whether or not the accused has applied for it, just as would also all provisions relating to the prescription of the crime and the penalty.'
If the judgment which could be affected and modified by the reduced penalties provided in Republic Act No. 7659 has already become final and executory or the accused is serving sentence thereunder, then practice,
procedure and pragmatic consideration would warrant and necessitate the matter being brought to the judicial authorities for relief under a writ of habeas corpus." (footnote omitted)
As mentioned above, the penalty for simple illegal possession of high powered firearm is prision mayor in its minimum period.[16] This penalty was taken from the Revised Penal Code, hence, although P.D. No.
1866, as amended by RA 8294, is a special law, the rules in said Code for graduating penalties by degrees or determining the proper period should be applied.[17]
In the case at bar, an unlicensed firearm was used in committing murder, thus, aggravating the crime and increasing the imposable penalty to the maximum period of prision mayor minimum, the duration of
which ranges from seven (7) years, four (4) months and one (1) day to eight (8) years.[18]
We determine the minimum and maximum sentence pursuant to the first part of Section 1 of the Indeterminate Sentence Law[19] which directs that "in imposing a prison sentence for an offense punished by the
Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall be that which, in view of the attending circumstances, could be properly
imposed under the rules of said Code, and the minimum of which shall be within the range of the penalty next lower to that prescribed by the Code for the offense."
Accordingly, the minimum range of the indeterminate sentence shall be taken from any of the periods of prision correccional maximum, the penalty next lower in degree to the penalty ofprision
mayor minimum. Prision correccional maximum has a duration of four (4) years, two (2) months and one (1) day to six (6) years. On the other hand, the maximum penalty to be imposed, taking into consideration the
aggravating circumstance attending the commission of the crime, shall be taken from the maximum period of prision mayor minimum which ranges from seven (7) years, four (4) months and one (1) day to eight (8)
years.
IN VIEW WHEREOF, the judgment against appellant in Criminal Case Nos. 11109 (for Murder) and Criminal Case No. 11644 (for Illegal Possession of Firearm) is AFFIRMED, with the MODIFICATION that, in
Criminal Case No. 11644, appellant should be sentenced, as he is hereby sentenced, to an indeterminate penalty of six (6) years of prision correccional, as the minimum term, and eight (8) years of prision
mayor minimum, as the maximum term. No costs.
SO ORDERED.
THIRD DIVISION

[G.R. Nos. 104238-58. June 3, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. CORA ABELLA OJEDA, appellant.

DECISION

CORONA, J.:
For review is the decision[1] dated June 21, 1991 of the Regional Trial Court of Manila, Branch 38, the dispositive portion of which read:
WHEREFORE, the Court finds accused Cora Abella Ojeda guilty beyond reasonable doubt of the crime of Estafa as defined and penalized under paragraph 2(d) of Article 315 of the Revised Penal Code, as amended by
Rep. Act 4885, in Criminal Case No. 88-66228 and hereby sentences her to suffer a penalty of reclusion perpetua, with the accessories provided by law and with credit for preventive imprisonment undergone, if any, in
accordance with Article 29 of the Revised Penal Code as amended, and to pay complainant Ruby Chua the amount of Two Hundred Twenty Eight Thousand Three Hundred Six (P228,306.00) Pesos with interests
thereon from the time of demand until fully paid.
Likewise, the Court also finds the said accused guilty for Violation of Batas Pambansa Blg. 22 in Criminal Cases Nos. 88-66230, 88-66232, 88-66235 to 88-66240, 88-66242, 88-66243, 88- 66245 to 88-66248 (14)
counts and hereby sentences her to suffer a penalty of one year of imprisonment for each count. On the other hand, the other charges docketed as Criminal Cases Nos. 88- 66229, 88-66231, 88-66233, 88-66234, 8866241 and 88-66244 are hereby dismissed for insufficiency of evidence.
Costs against accused in all instances.[2]
Appellant Cora Abella Ojeda was charged in 21 separate Informations for estafa in Criminal Case No. 88-66228 and for violation of Batas Pambansa (BP) 22 in Criminal Case Nos. 88-66229 to 88-66248.
The Information charging Ojeda with estafa read:
That on or about the first week of November, 1983, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously defraud RUBY CHUA in the following manner, to wit: the
said accused, well knowing that she did not have sufficient funds in the bank and without informing the said Ruby Chua of such fact drew, made out and issued to the latter the following post-dated Rizal Commercial
Banking Corporation checks, to wit:
22. 042906

Dec. 18, 1983

11,953.39

P228,306.60

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

Contrary to law.
The pertinent facts of the case follow.
Appellant Cora Abella Ojeda used to buy fabrics (telas) from complainant Ruby Chua. For the three years approximately she transacted business with Chua, appellant used postdated checks to pay for the fabrics
she bought. On November 5, 1983, appellant purchased from Chua various fabrics and textile materials worth P228,306 for which she issued 22 postdated checks bearing different dates and amounts.
Chua later presented to the bank for payment check no. 033550 dated November 5, 1983 in the amount of P17,100[3] but it was dishonored due to Account Closed.[4] On April 10, 1984, Chua deposited the rest of
the checks but all were dishonored for the same reason.[5] Demands were allegedly made on the appellant to make good the dishonored checks, to no avail.
Estafa and BP 22 charges were thereafter filed against appellant. The criminal cases were consolidated and appellant, on arraignment, pleaded not guilty to each of the charges.
On the whole, appellants defense was grounded on good faith or absence of deceit, lack of notice of dishonor and full payment of the total amount of the checks.
With the exception of six checks[6] which did not bear her signature, appellant admitted that she issued the postdated checks which were the subject of the criminal cases against her. She, however, alleged that she
told Chua not to deposit the postdated checks on maturity as they were not yet sufficiently funded. Appellant also claimed that she made partial payments to Chua in the form of finished garments worth P50,000. This
was not rebutted by the prosecution.
The trial court convicted appellant of the crime of estafa as defined and penalized under paragraph 2(d) of Article 315 of the Revised Penal Code (RPC), and sentenced her to reclusion perpetua. The trial court also
convicted appellant of violation of BP 22 for issuing bouncing checks. However, the court a quo held her guilty of only 14 counts out of the 22 bouncing checks issued. The court reasoned:
xxx This is due to the fact that of the 22 checks, two of them are not covered by the indictment. This refers to Check No. 042935 dated November 6, 1983 in the amount of P1,840.19 (Exhibit D) and Check No. 042942
dated November 10, 1983 in the amount of P1,941.59 (Exhibit F). And of the total number of checks, six of them were not signed by the accused but by the latters husband (Exhibits C,H,J,M,R and O). The accused
should not be liable for the issuance of the 6 checks in the absence of any showing of conspiracy.[7]
Appellant appealed to this Court, seeking acquittal. Her counsel, however, failed to file the appellants brief within the prescribed period. Her appeal was thus dismissed in a resolution of this Court dated October
14, 1992.[8]
In her motion for reconsideration, appellant asked this Court to reverse its order of dismissal in the interest of substantial justice and equity.[9] We initially found no compelling reason to grant her motion and
resolved to deny with finality appellants MR in a resolution dated February 3, 1993.[10] Appellant thereafter filed a Second and Urgent Motion for Reconsideration, attaching thereto an Affidavit of Desistance of
complainant Ruby Chua which stated in part:
xxx xxx

xxx.

2. that the defendant Mrs. Cora Ojeda has already fully paid her monetary obligation to me in the amount of P228,306.00 which is the subject of the aforementioned cases;
xxx xxx

xxx.

5. That as the private complainant, I am now appealing to the sense of compassion and humanity of the good justices of the Supreme Court to reconsider the appeal of Mrs. Cora Ojeda and I solemnly pray that the
criminal liability be extinguished with her civil liability.[11]
In a resolution dated March 17, 1993,[12] this Court denied the second MR for having been filed without leave of court. In the same resolution, this Court ordered the entry of judgment in due course.

Appellant thereafter filed another motion dated April 21, 1993, praying that she be recommended to then President Fidel V. Ramos for executive clemency. In support of such motion, she once more attached the
affidavit of desistance[13] of complainant Ruby Chua which categorically declared that the defendant, Ms. Cora Ojeda, (had) already fully paid her monetary obligations to (Chua) in the amount of P228,306 which (was)
the subject of the aforementioned cases.[14]
In view of such special circumstances, this Court issued a resolution dated June 9, 1993[15] recalling its resolutions dated October 14, 1992, February 3, 1993 and March 17, 1993 for humanitarian reasons and in the
interest of justice, and in order that this Court may resolve appellants appeal on the merits.[16]
Hence, the instant appeal with the following assignments of error:
I.
THE LOWER COURT ERRED IN FINDING THAT DECEIT WAS EMPLOYED BY ACCUSED APPELLANT WHEN SHE ISSUED THE CHECKS TO THE PRIVATE COMPLAINANT.
II.
THE LOWER COURT ERRED IN NOT FINDING THAT THE ISSUANCE BY THE ACCUSED-APPELLANT OF THE CHECKS TO THE PRIVATE COMPLAINANT WAS MERELY A MODE OF PAYMENT WHICH
ARRANGEMENT HAD BEEN THEIR PRACTICE FOR THREE (3) YEARS.
III.
THE LOWER COURT ERRED IN NOT FINDING THAT GOOD FAITH IS A VALID DEFENSE AGAINST ESTAFA BY POSTDATING A CHECK
IV.
THE LOWER COURT ERRED IN CONVICTING THE ACCUSED OF FOURTEEN (14) COUNTS OF B.P. 22 WHEN THERE WAS NO PROOF OF NOTICE OF DISHONOR TO THE ACCUSED.
V.
THE LOWER COURT ERRED IN NOT FINDING THAT SINCE 13 OF THE 14 CHECKS WERE DEPOSITED ONLY AFTER THE LAPSE OF THE 90 DAY PERIOD, HENCE, THE PRIMA FACIE PRESUMPTION OF
KNOWLEDGE DOES NOT APPLY.[17]
Appellant firmly denies any criminal liability for estafa. She argues there was no deceit employed when she issued the checks because she never assured Chua that the checks were funded. Chua allegedly knew all
along that the checks were merely intended to guarantee future payment by appellant.
Appellant further claims good faith in all her transactions with Chua for three years. She explained that her failure to fund the checks was brought about by the collapse of the countrys economy in the wake of the
Aquino assassination in 1983. The capital flight and financial chaos at that time caused her own business to shut down when her customers also failed to pay her. Despite the closure of her business, appellant maintains
that she did her best to continue paying Chua what she owed and, when she could no longer pay in cash, she instead paid in kind in the form of finished goods. But these were not enough to cover her
debts. Nevertheless, she spared no effort in complying with her financial obligations to Chua until she was gradually able to pay all her debts, a fact fully admitted as true by complainant in her affidavit.
From the foregoing, appellant contends that the element of deceit thru abuse of confidence or false pretenses was not present. Thus, her guilt was not established with satisfactory proof. Appellant asserts that good
faith on her part was a valid defense to rebut the prima facie presumption of deceit when she issued the checks that subsequently bounced.

Furthermore, out of the 14 checks cited in the decision of the trial court, only one check was deposited within 90 days from due date. This was check no. 033550 dated November 5, 1983. The rest of the checks
were deposited only on April 10, 1984 or more than 90 days from the date of the last check.[18]
Appellant also denies she received any notice of dishonor of the checks, contrary to the findings of the trial court. She was not even aware that cases had already been filed against her for violation of BP 22. Since
there was allegedly no proof of notice[19] of the dishonor of the checks, appellant claims that she cannot be convicted of violation of BP 22.
On the other hand, the Solicitor General contends that appellant was criminally liable for issuing worthless checks. Complainant Chua accepted the postdated checks as payment because of appellants good credit
standing. She was confident that appellants checks were good checks. Thus, no assurances from appellant that the checks were sufficiently funded were needed for Chua to part with her goods. And when the checks
later bounced, appellant betrayed the confidence reposed in her by Chua.
The Solicitor General also argues that there was a simultaneous exchange of textile materials and checks between complainant and appellant. Complainant Chua would not have parted with her telas had she
known that appellants checks would not clear. Appellant obtained something in exchange for her worthless checks. When she issued them, she knew she had no funds to back up those checks because her account had
already been closed. Yet, she did not inform Chua that the checks could not be cashed upon maturity. She thus deceived Chua into parting with her goods and the deceit employed constituted estafa.
We grant the appeal.

DECEIT AND DAMAGE AS

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

LACK OF NOTICE OF DISHONOR

We also note that the prosecution presented virtually no evidence to show that the indispensable notice of dishonor was sent to and received by appellant. Excerpts from the following testimony of complainant are
significant:
ATTY. ANGELES:
Q Now, Mrs. Witness, when these checks from Exhibits A to V have bounced, what steps, did you do?
A

I consulted my lawyer and she wrote a Demand Letter.

COURT:
Q What is the name of that lawyer?
A

Atty. Virginia Nabora.

ATTY. ANGELES:
Q Now, you mentioned a Demand Letter sent by Atty. Virginia Nabor, I am showing to you this Demand Letter dated March 16, 1988, will you kindly examine the same if this is the same Demand Letter you
mentioned a while ago?
A

Yes, sir.

Q Now, on this second page of this Demand Letter there is a signature above the printed name Virginia Guevarra Nabor, do you know the signature, Mrs. Witness?
A

Yes, that is the signature of my lawyer.

ATTY. ANGELES:
May we request that this Demand Letter dated March 16, 1988 consisting of two (2) pages, Your Honor, be marked as Exhibit W and that the signature on the second page of this letter of Virginia
Guevarra Nabor be encircled and be marked as Exhibit W-1 and that the attached Registry Receipt, Your Honor, be marked as Exhibit W-2.
COURT:
Mark them.
ATTY. ANGELES:
Q Now, Mrs. Witness, why do you know that this is the signature of Virginia Guevarra Nabor?
A

After preparing that I saw her sign the letter.

Q Now, after sending this Demand Letter, do you know If the accused herein made payments or replaced the checks that were issued to you?
COURT:
Q Of course, you assumed that the accused received that letter, that is his basis on the premise that the accused received that letter?
ATTY. ANGELES:

Yes, Your Honor.

COURT:
Q What proof is there to show that accused received the letter because your question is premises (sic) on the assumption that the accused received the letter?
ATTY. ANGELES:
Q Now, do you know Mrs. Witness if the accused received the letter?
A

There is a registry receipt.

COURT:
Q Now, later on after sending that letter, did you have communication with the accused?
A

I kept on calling her but I was not able to get in touch with her.

Q But do you know if that letter of your lawyer was received by the accused?
A

I was not informed by my lawyer but I presumed that the same was already received by the accused.

ATTY. ANGELES:
Q Now, aside from sending this Demand Letter, do you know what your lawyer did?
A

We filed a case with the Fiscals.[25]

Aside from the above testimony, no other reference to the demand letter was made by the prosecution. The prosecution claimed that the demand letter was sent by registered mail. To prove this, it presented a
copy of the demand letter as well as the registry return receipt bearing a signature which was, however, not even authenticated or identified. A registry receipt alone is insufficient as proof of mailing.[26] Receipts for
registered letters and return receipts do not prove themselves; they must be properly authenticated in order to serve as proof of receipt of the letters.[27]
It is clear from the foregoing that complainant merely presumed that appellant received the demand letter prepared and sent by her lawyer. She was not certain if appellant indeed received the notice of dishonor
of the checks. All she knew was that a demand letter was sent by her lawyer to the appellant. In fact, right after complainant made that presumption, her lawyer filed the criminal cases against appellant at the Fiscals
office[28] without any confirmation that the demand letter supposedly sent through registered mail was actually received by appellant.
With the evident lack of notice of dishonor of the checks, appellant cannot be held guilty of violation of BP 22. The lack of such notice violated appellants right to procedural due process. It is a general rule that
when service of notice is an issue, the person alleging that the notice was served must prove the fact of service.[29] The burden of proving receipt of notice rests upon the party asserting it and the quantum of proof
required for conviction in this criminal case is proof beyond reasonable doubt.
When, during the trial, appellant denied having received the demand letter, it became incumbent upon the prosecution to prove that the demand letter was indeed sent through registered mail and that the same
was received by appellant. But it did not. Obviously, it relied merely on the weakness of the evidence of the defense.
This Court therefore cannot, with moral certainty, convict appellant of violation of BP 22. The evident failure of the prosecution to establish that she was given the requisite notice of dishonor justifies her
acquittal.[30]
As held in Lao vs. Court of Appeals:[31]
It has been observed that the State, under this statute, actually offers the violator a compromise by allowing him to perform some act which operates to preempt the criminal action, and if he opts to perform it the
action is abated. This was also compared to certain laws allowing illegal possessors of firearms a certain period of time to surrender the illegally possessed firearms to the Government, without incurring any criminal
liability. In this light, the full payment of the amount appearing in the check within five banking days from notice of dishonor is a complete defense. The absence of a notice of dishonor necessarily deprives an accused

an opportunity to preclude a criminal prosecution. Accordingly, procedural due process clearly enjoins that a notice of dishonor be actually served on petitioner. Petitioner has a right to demand and the basic
postulates of fairness require -- that the notice of dishonor be actually sent to and received by her to afford her the opportunity to avert prosecution under B.P. 22.
Stated otherwise, responsibility under BP 22 was personal to appellant; hence, personal knowledge of the notice of dishonor was necessary. Consequently, while there may have been constructive notice to
appellant regarding the insufficiency of her funds in the bank, it was not enough to satisfy the requirements of procedural due process.
Finally, it is worth mentioning that notice of dishonor is required under both par. 2(d) Art. 315 of the RPC and Sec. 2 of BP 22. While the RPC prescribes that the drawer of the check must deposit the amount
needed to cover his check within three days from receipt of notice of dishonor, BP 22, on the other hand, requires the maker or drawer to pay the amount of the check withinfive days from receipt of notice of dishonor.
Under both laws, notice of dishonor is necessary for prosecution (for estafa and violation of BP 22). Without proof of notice of dishonor, knowledge of insufficiency of funds cannot be presumed and no crime (whether
estafa or violation of BP 22) can be deemed to exist.
WHEREFORE, the decision of the trial court is hereby REVERSED and SET ASIDE. Appellant Cora Abella Ojeda is ACQUITTED in Criminal Case No. 88-66228 for estafa and in Criminal Case Nos. 88-66230,
88-66232, 88-66235 to 88-66240, 88-66242, 88-66243, 88-66245 to 88-66248 for violation of BP 22.
SO ORDERED.
EN BANC

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

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

DECISION
DAVIDE, JR., J.:
Accused-appellant
Daniel
Quijada
appeals
from
the
decision
of
30
September
1993
of
Branch
1
of the Regional Trial Court (RTC) of Bohol convicting him of the two offenses separately charged in two informations, viz., murder under Article 248 of the Revised Penal Code and illegal possession of firearm in its
aggravated form under P.D. No. 1866, and imposing upon him the penalty of reclusion perpetua for the first crime and an indeterminate penalty ranging from seventeen years, four months, and one day, as minimum,
to twenty years and one day, as maximum, for the second crime.[1]
The appeal was originally assigned to the Third Division of the Court but was later referred to the Court en banc in view of the problematical issue of whether to sustain the trial court's judgment in conformity with
the doctrine laid down in People vs. Tac-an,[2] People vs. Tiozon,[3] People vs. Caling,[4] People vs. Jumamoy,[5] People vs. Deunida,[6] People vs. Tiongco,[7]People vs. Fernandez,[8] and People vs. Somooc,[9] or to modify
the judgment and convict the appellant only of illegal possession of firearm in its aggravated form pursuant to People vs. Barros,[10] which this Court (Second Division) decided on 27 June 1995.
The informations read as follows:
CRIMINAL CASE NO. 8178

That on or about the 30th day of December, 1992, in the municipality of Dauis, province of Bohol, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, with intent to kill and
without any justifiable motive, with treachery and abuse of superior strength, the accused being then armed with a .38 cal. revolver, while the victim was unarmed, suddenly attacked the victim without giving the latter
the opportunity to defend himself, and with evident premeditation, the accused having harbored a grudge against the victim a week prior to the incident of murder, did then and there willfully, unlawfully and
feloniously attack, assault and shoot Diosdado Iroy y Nesnea with the use of the said firearm, hitting the latter on his head and causing serious injuries which resulted to his death; to the damage and prejudice of the
heirs of the deceased.
Acts committed contrary to the provision of Art. 248 of the Revised Penal Code, with aggravating circumstance of nighttime being purposely sought for or taken advantage of by the accused to facilitate the commission
of the crime.[11]
CRIMINAL CASE NO. 8179
That on or about the 30th day of December, 1992, in the municipality of Dauis, province of Bohol, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, did then and there willfully,
unlawfully and feloniously keep, carry and have in his possession, custody and control a firearm (hand gun) with ammunition, without first obtaining the necessary permit or license to possess the said firearm from
competent authorities which firearm was carried by the said accused outside of his residence and was used by him in committing the crime of Murder with Diosdado Iroy y Nesnea as the victim; to the damage and
prejudice of the Republic of the Philippines.
Acts committed contrary to the provisions of P.D. No. 1866.[12]
Having arisen from the same incident, the cases were consolidated, and joint hearings were had. The witnesses presented by the prosecution were SPO4 Felipe Nigparanon (Acting Chief of Police of Dauis, Bohol),
SPO Gondalino Inte, Dr. Greg Julius Sodusta, Rosita Iroy, and Teodula Matalinis. The defense presented as witnesses Alfred Aranzado, Edwin Nistal, Julius Bonao, Saturnino Maglupay, and the appellant himself.
The evidence for the prosecution is summarized by the Office of the Solicitor General in the Brief for the Appellee as follows:
On 25 December 1992, a benefit dance was held at the Basketball Court of Barangay Tinago, Dauis, Bohol. On this occasion, a fist fight occurred between Diosdado Iroy and appellant Daniel Quijada as the latter
was constantly annoying and pestering the former's sister. Rosita Iroy (TSN, Crim. Cases 8178 & 8179, June 8, 1993, pp. 32-35; August 5, 1993, pp. 14-15).
In the evening of 30 December 1992, another benefit dance/disco was held in the same place. This benefit dance was attended bv Rosita Iroy, Ariel Dano, Teodora Badayos, Ado Aranzado, Largo Iroy and
Diosdado Iroy.
While Rosita Iroy and others were enjoying themselves inside the dancing area, Diosdado Iroy, Eugene Nesnea and Largo Iroy, who were then sitting at the plaza (the area where they positioned themselves was
duly lighted and was approximately four meters from the dancing hall), decided to just watch the activities in the dance hall directly from the plaza.
After dancing, Rosita Iroy decided to leave and went outside the gate of the dance area. Subsequently, or around 11:30 of the same night, while facing the direction of Diosdado Iroy, Rosita lroy saw appellant
surreptitiously approach her brother Diosdado Iroy from behind. Suddenly, appellant fired his revolver at Diosdado Iroy, hitting the latter at the back portion of the head. This caused Rosita Iroy to spontaneously
shout that appellant shot her brother; while appellant, after shooting Diosdado Iroy, ran towards the cornfield.
Diosdado Iroy was immediately rushed by Elmer Nigparanon and Largo Iroy to the hospital but the injury sustained was fatal. In the meantime, Rosita Iroy went home and relayed to her parents the unfortunate
incident (TSN, Crim Case Nos. 8178 & 8179, June 8, 1993, pp. 9-22, inclusive of the preceding paragraphs).
At around midnight, the incident was reported to then Acting Chief of Police Felipe Nigparanon by Mrs. Alejandra Iroy and her daughter Teodula Matalinis. The police officer made entries in the police blotter
regarding the shooting and correspondingly, ordered his men to pick up the appellant. But they were unable to locate appellant on that occasion (TSN, Crim. Case Nos. 8178 & 8179, June 9, 1993, pp. 2-6).
In the afternoon of 31 December 1992, appellant, together with his father Teogenes Quijada went to the police station at Dauis, Bohol. There and then, appellant was pinpointed by Elenito Nistal and Rosita Iroy as
the person who shot Diosdado Iroy. These facts were entered in the police blotter as Entry No. 1151 (TSN, Crim. Case Nos. 8178 & 8179, ibid. p. 14, June 14, 1993, pp. 4-6).[13]
The slug was embedded at the midbrain.[14] Diosdado Iroy died of Cardiorespiratory arrest, secondary to tonsillar herniation, secondary to massive intracranial hemorrhage, secondary to gunshot wound, 1 cm. left
occipital area, transacting cerebellum up to midbrain.[15]

The firearm used by the appellant in shooting Diosdado Iroy was not licensed. Per certifications issued on 26 April 1993, the appellant was not a duly licensed firearm holder as verified from a consolidated list of
licensed firearm holders in the province[16] and was not authorized to carry a firearm outside his residence.[17]
The appellant interposed the defense of alibi, which the trial court rejected because he was positively identified by prosecution witness Rosita Iroy. It summarized his testimony in this wise:
Daniel Quijada y Circulado, the accused in the instant cases, declared that in the afternoon of December 30, 1992 he was in their house At 6:00 o'clock in the afternoon he went to Tagbilaran City together with
Julius Bonao in a tricycle No. 250 to solicit passengers. They transported passengers until 10:30 o'clock in the evening. They then proceeded to the Tagbilaran wharf waiting for the passenger boat Trans Asia
Taiwan. Before the arrival of Trans Asia Taiwan they had a talk with Saturnino Maglopay. They were able to pick up two passengers for Graham Avenue near La Roca Hotel. They then returned to the Tagbilaran wharf
for the arrival of MV Cebu City that docked at 12:10 past midnight. They had a talk with Saturnino Maglopay who was waiting for his aunties scheduled to arrive aboard MV Cebu City. They were not able to pick up
passengers which, as a consequence, they went home. They had on their way home passengers for the Agora Public Market. They arrived at the house of Julian Bonao at Bil-isan, Panglao, Bohol at 3:00 o'clock in the
morning of December 31, 1992 where he passed the night. He went home to Mariveles, Dauis, Bohol at 9:00 o'clock in the morning.[18]
The trial court gave full faith and credit to the version of the prosecution and found the appellant guilty beyond reasonable doubt of the crimes charged and sentenced him accordingly. It appreciated the presence
of the qualifying circumstance of treachery considering that the appellant shot the victim at the back of the head while the latter was watching the dance. The dispositive portion of the decision dated 30 September 1993
reads as follows:
PREMISES CONSIDERED, in Criminal Case No. 8178, the court finds the accused Daniel Quijada guilty of the crime of murder punished under Article 248 of the Revised Penal Code and hereby sentences him to
suffer an imprisonment of Reclusion Perpetua, with the accessories of the law and to pay the cost.
In Criminal Case No. 8179, the Court finds the accused Daniel Quijada guilty of the crime of Qualified Illegal Possession of Firearm and Ammunition punished under Sec. 1 of R.A. No. 1866 as amended, and
hereby sentences him to suffer an indeterminate sentence from Seventeen (17) years Four (4) months and One (1) day, as minimum, to Twenty (20) years and One (1) day, as maximum, with the accessories of the law
and to pay the cost.
The slug or bullet which was extracted from the brain at the back portion of the head of the victim Diosdado Iroy is hereby ordered forfeited in favor of the government.
It appearing that the accused Daniel Quijada has undergone preventive imprisonment he is entitled to the full time he has undergone preventive imprisonment to be deducted from the term of sentence if he has
executed a waiver otherwise he will only be entitled to 4/5 of the time he has undergone preventive imprisonment to be deducted from his term of sentence if he has not executed a waiver.[19]
On 29 October 1993, after discovering that it had inadvertently omitted in the decision an award of civil indemnity and other damages in Criminal Case No. 8178, the trial court issued an order directing the
appellant to pay the parents of the victim the amount of P50,000.00 as indemnity for the death of their son and P10,000.00 for funeral expenses.[20] The order was to form an integral part of the decision.
The decision was promulgated on 29 October 1993.[21]
The appellant forthwith interposed the present appeal, and in his Brief, he contends that the trial court erred
I
. . . IN CONVICTING ACCUSED-APPELLANT AND GIVING CREDENCE TO THE TESTIMONY OF PROSECUTION WITNESSES ROSITA IROY AND FELIPE NIGPARANON.
II
. . . IN NOT CONSIDERING THE TESTIMONIES OF DEFENSE WITNESSES EDWIN NISTAL AND ALFRED ARANZADO, AND IN DISREGARDING THE PICTORIAL EXHIBITS OF THE ACCUSED-APPELLANT
PARTICULARLY THE RELATIVE POSITIONS OF DIOSDADO IROY, ROSITA IROY, EDWIN NISTAL, AND ALFRED ARANZADO.
III
. . . IN FAILING TO CONSIDER THAT PROSECUTION WITNESSES ROSITA IROY AND SP04 FELIPE NIGPARANON HAD MOTIVES IN FALSELY TESTIFYING AGAINST ACCUSED-APPELLANT.[22]

The appellant then submits that the issue in this case boils down to the identity of the killer of Diosdado Iroy. To support his stand that the killer was not identified, he attacks the credibility of prosecution
witnesses Rosita Iroy and SP04 Felipe Nigparanon. He claims that the former had a motive "to put him in a bad light" and calls our attention to her direct testimony that her brother Diosdado, the victim, boxed him on
the night of 25 December 1992 because he allegedly "bothered her." He further asserts that Rosita could not have seen the person who shot Diosdado considering their respective positions, particularly Rosita who,
according to defense witnesses Nistal and Aranzado, was still inside the dancing area and ran towards the crime scene only after Diosdado was shot. And, the appellant considers it as suppression of evidence when the
prosecution did not present as witnesses Diosdado's companions who were allegedly seated with Diosdado when he was shot.
As to SPO4 Nigparanon, the appellant intimates improper motives in that the said witness is a neighbor of the Iroys, and when he testified, a case for arbitrary detention had already been filed against him by the
appellant. The appellant further claims of alleged omissions and unexplained entries in the police blotter.
Finally, the appellant wants us to favorably consider his defense of alibi which, according to him, gained strength because of the lack of evidence on the identity of the killer. Furthermore, he stresses that his
conduct in voluntarily going to the police station after having been informed that he, among many others, was summoned by the police is hardly the actuation of the perpetrator of the killing of Diosdado Iroy -- specially
so if Rosita Iroy's claim is to be believed that moments after the shooting she shouted that Daniel Quijada shot Diosdado Iroy.
In its Appellee's Brief, the People refutes every argument raised by the appellant and recommends that we affirm in toto the challenged decision.
After a careful scrutiny of the records and evaluation of the evidence adduced by the parties, we find this appeal to be absolutely without merit.
The imputation of ill-motive on the part of Rosita Iroy and the basis therefor hardly persuade. The appellant was the one who was boxed by and lost to Diosdado Iroy in their fight on the night of 25 December
1992. It is then logical and consistent with human experience that it would be the appellant who would have forthwith entertained a grudge, if not hatred, against Diosdado. No convincing evidence was shown that
Rosita had any reason to falsely implicate the appellant in the death of her brother Diosdado.
The trial court disbelieved the testimony of Nistal and Aranzado. It explicitly declared:
The factual findings of the Court in the instant case is anchored principally in ". . . observing the attitude and deportment of witnesses while listening to them speak (People vs. Magaluna, 205, SCRA 266).
thereby indicating that on the basis of the witnesses' deportment and manner of testifying, the declarations of Nistal and Aranzado failed to convince the trial court that they were telling the truth. Settled is the rule that
the factual findings of the trial court, especially on the credibility of witnesses, are accorded great weight and respect. For, the trial court has the advantage of observing the witnesses through the different indicators of
truthfulness or falsehood, such as the angry flush of an insisted assertion or the sudden pallor of a discovered lie or the tremulous mutter of a reluctant answer or the forthright tone of a ready reply;[26] or the furtive
glance, the blush of conscious shame, the hesitation, the sincere or the flippant or sneering tone, the heat, the calmness, the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath,
the carriage and mien.[27] The appellant has miserably failed to convince us that we must depart from this rule.
Neither are we persuaded by the claimed suppression of evidence occasioned by the non-presentation as prosecution witnesses any of the companions of Diosdado who were seated with him when he was shot. In
the first place, the said companions could not have seen from their back the person who suddenly shot Diosdado. In the second place, the testimony of the companions would, at the most, only corroborate that of
Rosita Iroy. Besides, there is no suggestion at all that the said companions were not available to the appellant. It is settled that the presumption in Section 3 (e), Rule 131 of the Rules of Court that evidence willfully
suppressed would be adverse if produced does not apply when the testimony of the witness is merely corroborative or where the witness is available to the accused.[28]
The alleged improper motive on the part of SP04 Nigparanon simply because he is a neighbor of the Iroy; remains purely speculative, as no evidence was offered to establish that such a relationship affected SP04
Nigparanon's objectivity. As a police officer, he enjoyed in his favor the presumption of regularity in the performance of his official duty. [29] As to the alleged omissions and unexplained entries in the police blotter, the
same were sufficiently clarified by SP04 Nigparanon.
The defense of alibi interposed by the appellant deserves scant consideration. He was positively identified by a credible witness. It is a fundamental judicial dictum that the defense of alibicannot prevail over the
positive identification of the accused.[30] Besides, for that defense to prosper it is not enough to prove that the accused was somewhere else when the crime was committed; he must also demonstrate that it was
physically impossible for him to have been at the scene of the crime at the time of its commission.[31] As testified to by defense witness Julian Bonao, the Tagbilaran wharf, where the appellant said he was, is only about
eight to nine kilometers away from the crime scene and it would take only about thirty minutes to traverse the distance with the use of a tricycle. [32] It was, therefore, not physically impossible for the appellant to have
been at the scene of the crime at the time of its commission.

Finally, the appellant asserts that if he were the killer of Diosdado Iroy, he would not have voluntarily proceeded to the police station. This argument is plain sophistry. The law does not find unusual the voluntary
surrender of offenders; it even considers such act as a mitigating circumstance.[33] Moreover, non-flight is not conclusive proof of innocence.[34]
The evidence for the prosecution further established with moral certainty that the appellant had no license to possess or carry a firearm. The firearm then that he used in shooting Diosdado Iroy was
unlicensed. He, therefore, committed the crime of aggravated illegal possession of firearm under the second paragraph of Section 1 of P.D. No. 1866, which reads:
SEC. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms, Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition -- The penalty
of reclusiontemporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose or possess any firearm, part of firearm, ammunition or
machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed.
In
light
of
the
doctrine
enunciated
in People vs. Tac-an,[35] and
reiterated
in People vs. Tiozon,[36] People vs. Caling,[37] People vs. Jumamoy,[38] People vs. Deunida,[39] People vs.Tiongco,[40] People vs. Fernandez,[41] and People vs. Somooc,[42] that one who kills another with the use of an
unlicensed firearm commits two separate offenses of (1) either homicide or murder under the Revised Penal Code, and (2) aggravated illegal possession of firearm under the second paragraph of Section 1 of P.D. No.
1866, we sustain the decision of the trial court finding the appellant guilty of two separate offenses of murder in Criminal Case No. 8178 and of aggravated illegal possession of firearm in Criminal Case No. 8179.
Although Tac-an and Tiozon relate more to the issue of whether there is a violation of the constitutional proscription against double jeopardy if an accused is prosecuted for homicide or murder and for aggravated
illegal possession of firearm, they at the same time laid down the rule that these are separate offenses, with the first punished under the Revised Penal Code and the second under a special law; hence, the constitutional
bar against double jeopardy will not apply. We observed in Tac-an:
It is elementary that the constitutional right against double jeopardy protects one against a second or later prosecution for the same offense, and that when the subsequent information charges another and different
offense, although arising from the same act or set of acts, there is no prohibited double jeopardy. In the case at bar, it appears to us quite clear that the offense charged in Criminal Case No. 4007 is that of unlawful
possession of an unlicensed firearm penalized under a special statute, while the offense charged in Criminal Case No. 4012 was that of murder punished under the Revised Penal Code. It would appear self-evident that
these two (2) offenses in themselves are quite different one from the other, such that in principle, the subsequent filing of Criminal Case No. 4012 is not to be regarded as having placed appellant in a prohibited second
jeopardy.
And we stressed that the use of the unlicensed firearm cannot serve to increase the penalty for homicide or murder; however, the killing of a person with the use of an unlicensed firearm, by express provision of P.D. No.
1866, shall increase the penalty for illegal possession of firearm.
In Tiozon, we stated:
It may be loosely said that homicide or murder qualifies the offense penalized in said Section 1 because it is a circumstance which increases the penalty. It does not, however, follow that the homicide or murder is
absorbed in the offense; otherwise, an anomalous absurdity results whereby a more serious crime defined and penalized in the Revised Penal Code is absorbed by a statutory offense, which is just
a malum prohibitum. The rationale for the qualification, as implied from the exordium of the decree, is to effectively deter violations of the laws on firearms and to stop the "upsurge of crimes vitally affecting public
order and safety due to the proliferation of illegally possessed and manufactured firearms, x x x." In fine then, the killing of a person with the use of an unlicensed firearm may give rise to separate prosecutions for (a)
violation of Section 1 of P.D. No. 1866 and (b) violation of either Article 248 (Murder) or Article 249 (Homicide) of the Revised Penal Code. The accused cannot plead one as a bar to the other; or, stated otherwise, the
rule against double jeopardy cannot be invoked because the first is punished by a special law while the second, homicide or murder, is punished by the Revised Penal Code.
In People vs. Doriguez, [24 SCRA 163, 171], We held:
It is a cardinal rule that the protection against double jeopardy may be invoked only for the same offense or identical offenses. A simple act may offend against two (or more) entirely distinct and unrelated provisions of
law, and if one provision requires proof of an additional fact or element which the other does not, an acquittal or conviction or a dismissal of the information under one does not bar prosecution under the

other. Phrased elsewise, where two different laws (or articles of the same code) defines two crimes, prior jeopardy as to one of them is not obstacle to a prosecution of the other, although both offenses arise from the
same fact, if each crime involves some important act which is not an essential element of the other.
In People vs. Bacolod [89 Phil. 621], from the act of firing a shot from a sub-machine gun which caused public panic among the people present and physical injuries to one, informations of physical injuries through
reckless imprudence and for serious public disturbance were filed. Accused pleaded guilty and was convicted in the first and he sought to dismiss the second on the ground of double jeopardy. We ruled:
The protection against double jeopardy is only for the same offense. A simple act may be an offense against two different provisions of law and if one provision requires proof of an additional fact which the other does
not, an acquittal or conviction under one does not bar prosecution under the other.
Since the informations were for separate offense[s] -- the first against a person and the second against public peace and order -- one cannot be pleaded as a bar to the other under the rule on double jeopardy.
In Caling, we explicitly opined that a person charged with aggravated illegal possession of firearm under the second paragraph of Section 1 of P.D. No. 1866 can also be separately charged with and convicted of
homicide or murder under the Revised Penal Code and punished accordingly. Thus:
It seems that the Court a quo did indeed err in believing that there is such a thing as "the special complex crime of Illegal Possession of Unlicensed Firearm Used in Homicide as provided for and defined under the 2nd
paragraph of Sec. 1 of P.D. 1866 as amended," and declaring Caling guilty thereof. The legal provision invoked, "Sec. 1 of P.D. 1866, as amended," reads as follows:
"SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms [or] Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. - The
penalty ofreclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearm, part of firearm,
ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed."
What is penalized in the first paragraph, insofar as material to the present case is the sole, simple act of a person who shall, among others, "unlawfully possess any firearm x x x (or) ammunition x x x." Obviously,
possession of any firearm is unlawful if the necessary permit and/or license therefor is not first obtained. To that act is attached the penalty of reclusion temporal, maximum, to reclusion perpetua. Now, if "with the use
of (such) an unlicensed firearm, a "homicide or murder is committed," the crime is aggravated and is more heavily punished, with the capital punishment.
The gravamen of the offense in its simplest form is, basically, the fact of possession of a firearm without license. The crime may be denominated simple illegal possession, to distinguish it from its aggravated form. It is
Aggravated if the unlicensed firearm is used in the commission of a homicide or murder under the Revised Penal Code. But the homicide or murder is not absorbed in the crime of possession of an unlicensed firearm; n
eitheris the latter absorbed in the former. There are two distinct crimes that are here spoken of. One is unlawful possession of a firearm, which may be either simple or aggravated, defined and punished respectively by
the firstand second paragraphs of Section 1 of PD 1866. The other is homicide or murder, committed with the use of an unlicensed firearm. The mere possession of a firearm without legal authority consummates the cr
ime underP.D. 1866, and the liability for illegal possession is made heavier by the firearm's use in a killing. The killing, whether homicide or murder, is obviously distinct from the act of possession, and is separately pu
nished anddefined under the Revised Penal Code. (emphasis supplied)
In Jumamoy, we reiterated Caling and amplified the rationale on why an accused who kills another with an unlicensed firearm can be prosecuted and punished for the two separate offenses of violation of the
second paragraph of Section 1 of P.D. No. 1866 and for homicide or murder under the Revised Penal Code. Thus:
Coming to the charge of illegal possession of firearms, Section 1 of P.D. No. 1866 penalizes, inter alia, the unlawful possession of firearms or ammunition with reclusion temporal in its maximum period
to reclusion perpetua. However, under the second paragraph thereof, the penalty is increased to death if homicide or murder is committed with the use of an unlicensed
firearm. It may thus be loosely said that homicide or murder qualifies theoffense because both are circumstances which increase the penalty. It does not, however, follow that the homicide or murder is absorbed in the
offense. If these were to be so, an anomalous absurdity would result wherebya more serious crime defined and penalized under the Revised Penal Code will be absorbed by a statutory offense, one which is merely malu

m prohibitum. Hence, the killing of a person with the use of an unlicensed firearmmay give rise to separate prosecutions for (a) the violation of Section 1 of P.D. No. 1866 and (b) the violation of either Article 248 (Mur
der) or Article 249 (Homicide) of the Revised Penal Code. The accused cannot plead one to bar the other; stated otherwise, the rule against double jeopardy cannot be invoked as the first is punished by a special law
while the second - Murder or Homicide - is punished by the Revised Penal Code. [citing People vs. Tiozon, 198 SCRA 368, 379 (1991); People vs. Doriguez, 24 SCRA 163 (1968)]. Considering, however, that the
imposition of the death penalty is prohibited by the Constitution, the proper imposable penalty would be the penalty next lower in degree, or reclusion perpetua. (emphasis supplied)
In Deunida, in discussing the propriety of the Government's action in withdrawing an information for murder and pursuing only the information for "Qualified Illegal Possession of Firearm," this Court
categorically declared:
At the outset, it must be stressed that, contrary to the prosecution's legal position in withdrawing the information for murder, the offense defined in the second paragraph of Section 1 of P.D. No. 1866 does not absorb
the crime of homicide or murder under the Revised Penal Code and, therefore, does not bar the simultaneous or subsequent prosecution of the latter crime. The 1982 decision in Lazaro vs. People, involving the
violation of P.D. No. 9, which the investigating prosecutor invokes to justify the withdrawal, is no longer controlling in view of our decisions in People vs. Tac-an, People vs. Tiozon, and People vs. Caling.
In Somooc, we once more ruled:
The offense charged by the Information is clear enough from the terms of that document, although both the Information and the decision of the trial court used the term "Illegal Possession of Firearm with Homicide," a
phrase which has sometimes been supposed to connote a "complex crime as used in the Revised Penal Code. Such nomenclature is, however, as we have ruled in People vs. Caling, a misnomer since there is no
complex crime of illegal possession of firearm with homicide. The gravamen of the offense penalized in P.D. No. 1866 is the fact of possession of a firearm without a license or authority for such possession. This offense
is aggravated and the imposable penalty upgraded if the unlicensed firearm is shown to have been used in the commission of homicide or murder, offenses penalized under the Revised Penal Code. The killing of a
human being, whether characterized as homicide or murder, is patently distinct from the act of possession of an unlicensed firearm and is separately punished under the provisions of the Revised Penal Code.
The foregoing doctrine suffered a setback when in our decision of 27 June 1995 in People vs. Barros,[43] we set aside that portion of the appealed decision convicting the appellant of the offense of murder and
affirmed that portion convicting him of illegal possession of firearm in its aggravated form. We therein made the following statement:
[A]ppellant may not in the premises be convicted of two separate offenses [of illegal possession of firearm in its aggravated form and of murder], but only that of illegal possession of firearm in its aggravated form, in
light of the legal principles and propositions set forth in the separate opinion of Mr. Justice Florenz D. Regalado, to which the Members of the Division, the ponente included, subscribe.
The pertinent portions of the separate opinion of Mr. Justice Florenz D. Regalado referred to therein read as follows:
This premise accordingly brings up the second query as to whether or not the crime should properly be the aggravated illegal possession of an unlicensed firearm through the use of which a homicide or murder is
committed. It is submitted that an accused so situated should be liable only for the graver offense of aggravated illegal possession of the firearm punished by death under the second paragraph of Section 1, Presidential
Decree No. 1866, and it is on this point that the writer dissents from the holding which would impose a separate penalty for the homicide in addition to that for the illegal possession of the firearm used to commit the
former.
If the possession of the unlicensed firearm is the only offense imputable to the accused, the Court has correctly held that to be the simple possession punished with reclusion temporal in its maximum period
to reclusionperpetua in the first paragraph of Section 1. Where, complementarily, the unlicensed firearm is used to commit homicide or murder, then either of these felonies will convert the erstwhile simple illegal
possession into the graver offense of aggravated illegal possession. In other words, the homicide or murder constitutes the essential element for integrating into existence the capital offense of the aggravated form of
illegal possession of a firearm. Legally, therefore, it would be illogical and unjustifiable to use the very same offenses of homicide or murder as integral elements of and to create the said capital offense, and then treat
the former all over again as independent offenses to be separately punished further, with penalties immediately following the death penalty to boot.
The situation contemplated in the second query is, from the punitive standpoint, virtually of the nature of the so-called, special complex crimes," which should more appropriately be called composite crimes, punished
in Article 294, Article 297 and Article 335. They are neither of the same legal basis as nor subject to the rules on complex crimes in Article 48, since they do not consist of a single act giving rise to two or more grave or

less grave felonies nor do they involve an offense being a necessary means to commit another. However, just like the regular complex crimes and the present case of aggravated illegal possession of firearms, only a
single penalty is imposed for each of such composite crimes although composed of two or more offenses.
On the other hand, even if two felonies would otherwise have been covered by the conceptual definition of a complex crime under Article 48, but the Code imposes a single definite penalty therefor, it cannot also be
punished as a complex crime, much less as separate offense, but with only the single penalty prescribed by law. Thus, even where a single act results in two less grave felonies of serious physical injuries and serious
slander by deed, the offense will not be punished as a delito compuesto under Article 48 but as less serious physical injuries with ignominy under the second paragraph of Article 265. The serious slander by deed is
integrated into and produces a graver offense, and the former is no longer separately punished.
What is, therefore, sought to be stressed by such alternative illustration, as well as the discussion on complex and composite crimes, is that when an offense becomes a component of another, the resultant crime being
correspondingly punished as thus aggravated by the integration of the other, the former is not to be further separately punished as the majority would want to do with the homicide involved in the case at bar.
With the foregoing answers to the second question, the third inquiry is more of a question of classification for purposes of the other provisions of the Code. The theory in Tac-an that the principal offense is the
aggravated form of illegal possession of firearm and the killing shall merely be included in the particulars or, better still, as an element of the principal offense, may be conceded. After all, the plurality of crimes here is
actually source from the very provisions of Presidential Decree No. 1866 which sought to "consolidate, codify and integrate" the various laws and presidential decrees to harmonize their provision" which must be
updated and revised in order to more effectively deter violators of said laws.
This would be akin to the legislative intendment underlying the provisions of the Anti-Carnapping Act of 1972, wherein the principal crime to be charged is still carnapping, although the penalty therefore is increased
when the owner, driver or occupant of the carnapped vehicle is killed. The same situation, with escalating punitive provisions when attended by a killing, are found in the Anti-Piracy and Anti-Highway Robbery Law of
1974 and the Anti-Cattle Rustling Law of 1974, wherein the principal crimes still are piracy, highway robbery and cattle rustling. Also, in the matter of destructive arson, the principal offense when, inter alia, death
results as a consequence of the commission of any of the acts punished under said article of the Code.
In the present case, the academic value of specifying whether it is a case of illegal possession of firearm resulting in homicide or murder, or, conversely, homicide or murder through the illegal possession and use of an
unlicensed firearm, would lie in the possible application of the provision on recidivism. Essentially, it would be in the theoretical realm since, taken either way, the penalty for aggravated illegal possession of a firearm
is the single indivisible penalty of death, in which case the provision on recidivism would not apply. If, however, the illegal possession is not established but either homicide or murder is proved, then the matter of
recidivism may have some significance in the sense that, for purposes thereof, the accused was convicted of a crime against persons and he becomes a recidivist upon conviction of another crime under the same title of
the Code.
Lastly, on the matter of the offense or offenses to be considered and the penalty to be imposed when the unlawful killing and the illegal possession are charged in separate informations, from what has been said the
appropriate course of action would be to consolidate the cases and render a joint decision thereon, imposing a single penalty for aggravated illegal possession of firearm if such possession and the unlawful taking of life
shall have been proved, or for only the proven offense which may be either simple illegal possession, homicide or murder per se. The same procedural rule and substantive disposition should be adopted if one
information for each offense was drawn up and these informations were individually assigned to different courts or branches of the same court.
Indeed, the practice of charging the offense of illegal possession separately from the homicide or murder could be susceptible of abuse since it entails undue concentration of prosecutorial powers and
discretion. Prefatorily, the fact that the killing was committed with a firearm will necessarily be known to the police or prosecutorial agencies, the only probable problem being the determination and obtention of
evidence to show that the firearm is unlicensed.
Now, if a separate information for homicide or murder is filed without alleging therein that the same was committed by means of an unlicensed firearm, the case would not fall under Presidential Decree No. 1866. Even
if the use of a firearm is alleged therein, but without alleging the lack of a license therefor as where that fact has not yet been verified, the mere use of a firearm by itself, even if proved in that case, would not affect the
accused either since it is not an aggravating or qualifying circumstance.
Conversely, if the information is only for illegal possession, with the prosecution intending to file thereafter the charge for homicide or murder but the same is inexplicably delayed or is not consolidated with the
information for illegal possession, then any conviction that may result from the former would only be for simple illegal possession. If, on the other hand, the separate and subsequent prosecution for homicide or

murder prospers, the objective of Presidential Decree No. 1866 cannot be achieved since the penalty imposable in that second prosecution will only be for the unlawful killing and further subject to such modifying
circumstances as may be proved.
In any event, the foregoing contingencies would run counter to the proposition that the real offense committed by the accused, and for which sole offense he should be punished, is the aggravated form of illegal
possession of a firearm. Further, it is the writer's position that the possible problems projected herein may be minimized or obviated if both offenses involved are charged in only one information or that the trial
thereof, if separately charged, be invariably consolidated for joint decision. Conjointly, this is the course necessarily indicated since only a single composite crime is actually involved and it is palpable error to deal
therewith and dispose thereof by segregated parts in piecemeal fashion.
If we follow Barros, the conviction of the appellant for murder in Criminal Case No. 8178 must have to be set aside. He should only suffer the penalty for the aggravated illegal possession of firearm in Criminal
Case No. 8179.
The Court en banc finds in this appeal an opportunity to reexamine the existing conflicting doctrines applicable to prosecutions for murder or homicide and for aggravated illegal possession of firearm in instances
where an unlicensed firearm is used in the killing of a person. After a lengthy deliberation thereon, the Court en banc arrived at the conclusion that the rule laid down in Tac-an, reiterated
in Tiozon, Caling, Jumamoy, Deunida, Tiongco, Fernandez, and Somooc is the better rule, for it applies the laws concerned according to their letter and spirit, thereby steering this Court away from a dangerous course
which could have irretrievably led it to an inexcusable breach of the doctrine of separation of powers through Judicial legislation. That rule upholds and enhances the lawmaker's intent or purpose in aggravating the
crime of illegal possession of firearm when an unlicensed firearm is used in the commission of murder or homicide. Contrary to the view of our esteemed brother, Mr. Justice Florenz D. Regalado, in his Concurring and
Dissenting Opinion in the case under consideration, Tac-an did not enunciate an unfortunate doctrine or a "speciously camouflaged theory" which "constitutes an affront on doctrinal concepts of penal law and assails
even the ordinary notions of common sense."
If Tac-an did in fact enunciate such an "unfortunate doctrine," which this Court has reiterated in a convincing number of cases and for a convincing number of years, so must the same verdict be made in our
decision in People vs. De Gracia,[44] which was promulgated on 6 July 1994. In the latter case, we held that unlawful possession of an unlicensed firearm in furtherance of rebellion may give rise to separate prosecutions
for a violation of Section 1 of P.D. No. 1866 and also for a violation of Articles 134 and 135 of the Revised Penal Code on rebellion. A distinction between that situation and the case where an unlicensed firearm is used in
homicide or murder would have no basis at all. In De Gracia, this Court, speaking through Mr. Justice Florenz D. Regalado, made the following authoritative pronouncements:
III. As earlier stated, it was stipulated and admitted by both parties that from November 30, 1989 up to and until December 9, 1989, there was a rebellion. Ergo, our next inquiry is whether or not appellant's
possession of the firearms, explosives and ammunition seized and recovered from him was for the purpose and in furtherance of rebellion.
The trial court found accused guilty of illegal possession of firearms in furtherance of rebellion pursuant to paragraph 2 of Article 135 of the Revised Penal Code which states that "any person merely participating or
executing the command of others in a rebellion shall suffer the penalty of prision mayor in its minimum period." The court below held that appellant De Gracia, who had been servicing the personal needs of Col.
Matillano (whose active armed opposition against the Government, particularly at the Camelot Hotel, was well known), is guilty of the act of guarding the explosives and "molotov bombs for and in behalf of the
latter. We accept this finding of the lower court.
The above provision of the law was, however, erroneously and improperly used by the court below as a basis in determining the degree of liability of appellant and the penalty to be imposed on
him. It must be made clearthat appellant is charged with the qualified offense of illegal possession of firearms in furtherance of rebellion under Presidential Decree No. 1866 which, in law, is distinct from the crime of r
ebellion punished under Article134 and 135 of the Revised Penal Code. There are two separate statutes penalizing different offenses with discrete penalties. The Revised Penal Code treats rebellion as a crime apart fro
m murder, homicide, arson, orother offenses, such as illegal possession of firearms, that might conceivably be committed in the course of a rebellion. Presidential Decree No. 1866 defines and punishes, as a specific offe
nse, the crime of illegal possessionof firearms committed in the course or as part of a rebellion.
As a matter of fact, in one case involving the constitutionality of Section 1 of Presidential Decree No. 1866, the Court has explained that said provision of the law will not be invalidated by the mere fact that the same act i
spenalized under two different statutes with different penalties, even if considered highly advantageous to the prosecution and onerous to the accused. It follows that, subject to the presence of requisite elements in eac
h case,unlawful possession of an unlicensed firearm in furtherance of rebellion may give rise to separate prosecutions for a violation of Section 1 of Presidential Decree No. 1866, and also a violation of Articles 134 and 1
35 of theRevised Penal Code on rebellion. Double jeopardy in this case cannot be invoked because the first is an offense punished by a special law while the second is a felony punished by the Revised Penal Code with va
riantelements.

We cannot justify what we did in De Gracia with a claim that the virtue of fidelity to a controlling doctrine, i.e., of Tac-an, had compelled us to do so. Indeed, if Tac-an enunciated an "unfortunate doctrine" which
is "an affront on doctrinal concepts of penal law and assails even the ordinary notions of common sense," then De Gracia should have blazed the trail of a new enlightenment and forthwith set aside the "unfortunate
doctrine" without any delay to camouflage a judicial faux pas or a doctrinal quirk. De Gracia provided an excellent vehicle for an honorable departure from Tac-an because no attack on the latter was necessary as the
former merely involved other crimes to which the doctrine in Tac-an might only be applied by analogy. De Gracia did not even intimate the need to reexamine Tac-an; on the contrary, it adapted the latter to another
category of illegal possession of firearm qualified by rebellion precisely because the same legal principle and legislative purpose were involved, and not because De Gracia wanted to perpetuate an "unfortunate doctrine"
or to embellish "the expanding framework of our criminal law from barnacled ideas which have not grown apace with conceptual changes over time," as the concurring and dissenting opinion charges.
The majority now reiterates the doctrine in Tac-an and the subsequent cases not because it has become hostage to the "inertia of time [which] has always been the obstacle to the virtues of change," as the
concurring and dissenting opinion finds it to be, but rather because it honestly believes that Tac-an laid down the correct doctrine. If P.D. No. 1866 as applied in Tac-an is an "affront on doctrinal concepts of penal laws
and assails even the ordinary notions of common sense," the blame must not be laid at the doorsteps of this Court, but on the lawmaker's. All that the Court did in Tac-an was to apply the law, for there was nothing in
that case that warranted an interpretation or the application of the niceties of legal hermeneutics. It did not forget that its duty is merely to apply the law in such a way that shall not usurp legislative powers by judicial
legislation and that in the course of such application or construction it should not make or supervise legislation, or under the guise of interpretation modify, revise, amend, distort, remodel, or rewrite the law, or give the
law a construction which is repugnant to its terms.[45]
Murder and homicide are defined and penalized by the Revised Penal Code[46] as crimes against persons. They are mala in se because malice or dolo is a necessary ingredient therefor.[47] On the other hand, the
offense of illegal possession of firearm is defined and punished by a special penal law,[48] P.D. No. 1866. It is a malum prohibitum[49] which the lawmaker, then President Ferdinand E. Marcos, in the exercise of his
martial law powers, so condemned not only because of its nature but also because of the larger policy consideration of containing or reducing, if not eliminating, the upsurge of crimes vitally affecting public order and
safety due to the proliferation of illegally possessed and manufactured firearms, ammunition, and explosives. Ifintent to commit the crime were required, enforcement of the decree and its policy or purpose would be
difficult to achieve. Hence, there is conceded wisdom in punishing illegal possession of firearm without taking into account the criminal intent of the possessor. All that is needed
is intent to perpetrate the act prohibited by law, coupled, of course, by animus possidendi. However, it must be clearly understood that this animus possidendi is without regard to any other criminal or felonious intent
which an accused may have harbored in possessing the firearm.[50]
A long discourse then on the concepts of malum in se and malum prohibilum and their distinctions is an exercise in futility.
We disagree for lack of basis the following statements of Mr. Justice Regalado in his Concurring and Dissenting Opinion, to wit:
The second paragraph of the aforestated Section 1 expressly and unequivocally provides for such illegal possession and resultant killing as a single integrated offense which is punished as such. The majority not only
created two offenses by dividing a single offense into two but, worse, it resorted to the unprecedented and invalid act of treating the original offense as a single integrated crime and then creating another offense by
using a component crime which is also an element of the former.
It would already have been a clear case of judicial legislation if the illegal possession with murder punished with a single penalty have been divided into two separate offenses of illegal possession and murder with
distinct penalties. It is consequently a compounded infringement of legislative powers for this Court to now, as it has done, treat that single offense as specifically described by the law and
impose reclusion perpetua therefor (since the death penalty for that offense is still proscribed), but then proceed further by plucking out therefrom the crime of murder in order to be able to impose the death
sentence. For indeed, on this score, it is beyond cavil that in the aggravated form of illegal possession, the consequential murder (or homicide) is an integrated element or integral component since without the
accompanying death, the crime would merely be simple illegal possession of a firearm under the first paragraph of Section 1.
The second paragraph of Section 1 of P.D. No. 1866 does not warrant and support a conclusion that it intended to treat "illegal possession and resultant killing" (emphasis supplied) "as a single and integrated
offense" of illegal possession with homicide or murder. It does not use the clause as a result or on the occasion of to evince an intention to create a single integrated crime. By its unequivocal and explicit language,
which we quote to be clearly understood:
If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed. (emphasis supplied)
the crime of either homicide or murder is committed NOT AS A RESULT OR ON THE OCCASION of the violation of Section 1, but WITH THE USE of an unlicensed firearm, whose possession is penalized
therein. There is a world of difference, which is too obvious, between (a) the commission of homicide or murder as a result or on the occasion of the violation of Section 1, and (b) the commission of homicide or
murder with the use of an unlicensed firearm. In the first, homicide or murder is not the original purpose or primary objective of the offender, but a secondary event or circumstance either resulting from or perpetrated

on the occasion of the commission of that originally or primarily intended. In the second, the killing, which requires a mensrea, is the primary purpose, and to carry that out effectively the offender uses an unlicensed
firearm.
As to the question then of Mr. Justice Regalado of whether this Court should also apply the rule enunciated here to P.D. No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974), P.D. No. 533 (Anti-Cattle
Rustling Law of 1974), and P.D. No. 534 (Defining Illegal Fishing and Prescribing Stiffer Penalties Therefor), the answer is resoundingly in the negative. In those cases, the lawmaker clearly intended a single integrated
offense or a special complex offense because the death therein occurs as a result or on the occasion of the commission of the offenses therein penalized or was not the primary purpose of the offender, unlike in the
second paragraph of Section 1 of P.D. No. 1866. Thus, (a) Section 3 of P.D. No. 532 provides:
SEC. 3. Penalties. -- Any person who commits piracy or highway robbery/brigandage as herein defined, shall, upon conviction by competent court be punished by:
a. Piracy. - The penalty of reclusion temporal in its medium and maximum periods shall be imposed. If physical injuries or other crimes are committed as a result or on the occasion thereof, the penalty
of reclusionperpetua shall be imposed. If rape, murder or homicide is committed as a result or on the occasion of piracy, or when the offenders abandoned the victims without means of saving themselves, or when the
seizure is accomplished by firing upon or boarding a vessel, the mandatory penalty of death shall be imposed.
b. Highway Robbery/Brigandage.-- The penalty of reclusion temporal in its minimum period shall be imposed. If physical injuries or other crimes are committed during or on the occasion of the commission of
robbery or brigandage, the penalty of reclusion temporal in its medium and maximum periods shall be imposed. If kidnapping for ransom or extortion, or murder or homicide, or
rape is committed as a result or on the occasionthereof, the penalty of death shall be imposed. (emphasis supplied)
(b) Section 8 of P.D. No. 533 reads in part as follows:
SEC. 8. Penal provisions. -- Any person convicted of cattle rustling as herein defined shall, irrespective of the value of the large cattle involved, be punished by prision mayor in its maximum period
to reclusion temporal in its medium period if the offense is committed without violence against or intimidation of persons or force upon things. If the offense is committed with violence against or intimidation of
persons or force upon things, the penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed. If a person is seriously injured
or killed as a result or on the occasion of the commission of cattle rustling, the penalty of reclusionperpetua to death shall be imposed. (emphasis supplied)
and (c) Section 3 of P.D. No. 534 reads as follows:
SECTION. 3. Penalties.-- Violations of this Decree and the rules and regulations mentioned in paragraph (f) of Section 1 hereof shall be punished as follows:
a. by imprisonment from 10 to 12 years, if explosives are used: Provided, that if the explosion results (1) in physical injury to person, the penalty shall be imprisonment from 12 to 20 years, or
(2) in the loss of human life,then the penalty shall be imprisonment from 20 years to life, or death;
b. by imprisonment from 8 to 10 years, if obnoxious or poisonous substances are used: Provided, that if the use of such substances results (1) in physical injury to any person, the penalty shall be imprisonment from 10
to 12 years, or (2) in the loss of human life, then the penalty shall be imprisonment from 20 years to life, or death; x x x (emphasis supplied)
The unequivocal intent of the second paragraph of Section 1 of P.D. No. 1866 is to respect and preserve homicide or murder as a distinct offense penalized under the Revised Penal Code and to increase the penalty
for illegal possession of firearm where such a firearm is used in killing a person. Its clear language yields no intention of the lawmaker to repeal or modify, pro tanto,Articles 248 and 249 of the Revised Penal Code, in
such a way that if an unlicensed firearm is used in the commission of homicide or murder, either of these crimes, as the case may be, would only serve to aggravate the offense of illegal possession of firearm and would
not anymore be separately punished. Indeed, the words of the subject provision are palpably clear to exclude any suggestion that either of the crimes of homicide and murder, as crimes mala in se under the Revised
Penal Code, is obliterated as such and reduced as a mere aggravating circumstance in illegal possession of firearm whenever the unlicensed firearm is used in killing a person. The only purpose of the provision is to
increase the penalty prescribed in the first paragraph of Section 1 -- reclusion temporal in its maximum period to reclusion perpetua -- to death, seemingly because of the accused's manifest arrogant defiance and
contempt of the law in using an unlicensed weapon to kill another, but never, at the same time, to absolve the accused from any criminal liability for the death of the victim.

Neither is the second paragraph of Section 1 meant to punish homicide or murder with death if either crime is committed with the use of an unlicensed firearm, i.e., to consider such use merely as
a qualifying circumstance and not as an offense. That could not have been the intention of the lawmaker because the term "penalty" in the subject provision is obviously meant to be the penalty for illegal possession of
firearm and not the penalty for homicide or murder. We explicitly stated in Tac-an:
There is no law which renders the use of an unlicensed firearm as an aggravating circumstance in homicide or murder. Under an information charging homicide or murder, the fact that the death weapon was an
unlicensed firearm cannot be used to increase the penalty for the second offense of homicide or murder to death .... The essential point is that the unlicensed character or condition of the instrument used in destroying
human life or committing some other crime, is not included in the inventory of aggravating circumstances set out in Article 14 of the Revised Penal Code.
A law may, of course, be enacted making the use of an unlicensed firearm as a qualifying circumstance. This would not be without precedent. By analogy, we can cite Section 17 of B.P. Blg. 179, which amended the
Dangerous Drugs Act of 1972 (R.A. No. 6425). The said section provides that when an offender commits a crime under a state of addiction, such a state shall be considered as a qualifying aggravating circumstance in
the definition of the crime and the application of the penalty under the Revised Penal Code.
In short, there is nothing in P.D. No. 1866 that manifests, even vaguely, a legislative intent to decriminalize homicide or murder if either crime is committed with the use of an unlicensed firearm, or to convert the
offense of illegal possession of firearm as a qualifying circumstance if the firearm so illegally possessed is used in the commission of homicide or murder. To charge the lawmaker with that intent is to impute an
absurdity that would defeat the clear intent to preserve the law on homicide and murder and impose a higher penalty for illegal possession of firearm if such firearm is used in the commission of homicide or murder.
Evidently, the majority did not, as charged in the concurring and dissenting opinion, create two offenses by dividing a single offense into two. Neither did it resort to the "unprecedented and invalid act of treating
the original offense as a single integrated crime and then creating another offense by using a component crime which is also an element of the former." The majority has always maintained that
the killing of a person with the use of an illegally possessed firearm gives rise to two separate offenses of (a) homicide or murder under the Revised Penal Code, and (b) illegal possession of firearm in its aggravated
form.
What then would be a clear case of judicial legislation is an interpretation of the second paragraph of Section 1 of P.D. No. 1866 that would make it define and punish a single integrated offense and give to the
words WITH THE USE OF a similar meaning as the words AS A RESULT OR ON THE OCCASION OF, a meaning which is neither born out by the letter of the law nor supported by its intent. Worth noting is the rule
in statutory construction that if a statute is clear, plain, and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation,[51] leaving the court no room for any extended
ratiocination or rationalization of the law.[52]
Peregrinations into the field of penology such as on the concept of a single integrated crime or composite crimes, or into the philosophical domain of integration of the essential elements of one crime to that of
another would then be unnecessary in light of the clear language and indubitable purpose and intent of the second paragraph of Section 1 of P.D. No. 1866. The realm of penology, the determination of what should be
criminalized, the definition of crimes, and the prescription of penalties are the exclusive prerogatives of the legislature. As its wisdom may dictate, the legislature may even create from a single act or transaction various
offenses for different purposes subject only to the limitations set forth by the Constitution. This Court cannot dictate upon the legislature to respect the orthodox view concerning a single integrated crime or composite
crimes.
The only apparent obstacle to the imposition of cumulative penalties for various acts is the rule on double jeopardy. This brings us to the proposition in the dissenting opinion of Mr. Justice Regalado that the
majority view offends the constitutional bar against double jeopardy under the "same-evidence" test enunciated in People vs. Diaz.[53] He then concludes:
In the cases now before us, it is difficult to assume that the evidence for the murder in the first charge of aggravated illegal possession of firearm with murder would be different from the evidence to be adduced in the
subsequent charge for murder alone. In the second charge, the illegal possession is not in issue, except peripherally and inconsequentially since it is not an element or modifying circumstance in the second charge,
hence the evidence therefor is immaterial. But, in both prosecutions, the evidence on murder is essential, in the first charge because without it the crime is only simple illegal possession, and, in the second charge,
because murder is the very subject of the prosecution. Assuming that all the other requirements under Section 7, Rule 117 are present, can it be doubted that double jeopardy is necessarily present and can be validly
raised to bar the second prosecution for murder?
In fact, we can extrapolate the constitutional and reglementary objection to the cases of the other composite crimes for which a single penalty is imposed, such as the complex, compound and so-called special complex
crimes. Verily, I cannot conceive of how a person convicted of estafa through falsification under Article 48 can be validly prosecuted anew for the same offense or either estafa or falsification; or how the accused
convicted of robbery with homicide under Article 294 can be legally charged again with either of the same component crimes of robbery or homicide; or how the convict who was found guilty of rape with homicide
under Article 335 can be duly haled before the court again to face charges of either the same rape or homicide. Why, then, do we now sanction a second prosecution for murder in the cases at bar since the very same

offense was an indispensable component for the other composite offense of illegal possession of firearm with murder? Why would the objection of non bis in idim as a bar to a second jeopardy lie in the preceding
examples and not apply to the cases now before us?
We are unable to agree to the proposition. For one, the issue of double jeopardy is not raised in this case. For another, the so-called "same-evidence" test is not a conclusive, much less exclusive, test in double
jeopardy cases of the first category under the Double Jeopardy Clause which is covered by Section 21, Article III of the Constitution and which reads as follows:
No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the
same act.
Note that the first category speaks of the same offense. The second refers to the same act. This was explicitly distinguished in Yap vs. Lutero,[54] from where People vs. Relova[55] quotes the following:
Thirdly, our Bill of Rights deals with two (2) kinds of double jeopardy. The first sentence of clause 20, Section 1, Article III of the Constitution, ordains that "no person shall be twice put in jeopardy of punishment for
the same offense." (italics in the original) The second sentence of said clause provides that "if an act is punishable by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another
prosecution for the same act." Thus, the first sentence prohibits double jeopardy of punishment for the same offense whereas, the second contemplates double jeopardy of punishment for the same act. Under the first
sentence, one may be twice put in jeopardy of punishment of the same act, provided that he is charged with different offenses, or the offense charged in one case is not included in, or does not include, the crime charged
in the other case. The second sentence applies, even if the offenses charged are not the same, owing to the fact that one constitutes a violation of an ordinance and the other a violation of a statute. If the two charges are
based on one and the same act, conviction or acquittal under either the law or the ordinance shall bar a prosecution under the other. Incidentally, such conviction or acquittal is not indispensable to sustain the plea of
double jeopardy of punishment for the same offense. So long as jeopardy has been attached under one of the informations charging said offense, the defense may be availed of in the other case involving the same
offense, even if there has been neither conviction nor acquittal in either case.
Elsewise stated, where the offenses charged are penalized either by different sections of the same statute or by different statutes, the important inquiry relates to the identity of offenses charged. The constitutional
protection against double jeopardy is available only where an identity is shown to exist between the earlier and the subsequent offenses charged.[56] The question of identity or lack of identity of offenses is addressed by
examining the essential elements of each of the two offenses charged, as such elements are set out in the respective legislative definitions of the offenses involved.[57]
It may be noted that to determine the same offense under the Double Jeopardy Clause of the Fifth Amendment of the Constitution of the United States of America which reads:
[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .
the rule applicable is the following: "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is
whether each provision requires proof of an additional fact which the other does not."[58]
The Double Jeopardy Clause of the Constitution of the United States of America was brought to the Philippines through the Philippine Bill of 1 July 1902, whose Section 5 provided, inter alia:
[N]o person for the same offense shall be twice put in jeopardy of punishment . . . .
This provision was carried over in identical words in Section 3 of the Jones Law of 29 August 1916.[59] Then under the 1935 Constitution, the Jones Law provision was recast with the addition of a provision referring
to the same act. Thus, paragraph 20, Section 1, Article III thereof provided as follows:
No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the
same act.
This was adopted verbatim in Section 22, Article IV of the 1973 Constitution and in Section 21, Article III of the present Constitution.

This additional-element test in Lutero and Relova and in Blockburger, Gore, and Missouri would safely bring the second paragraph of Section 1 of P.D. No. 1866 out of the proscribed double jeopardy
principle. For, undeniably, the elements of illegal possession of firearm in its aggravated form are different from the elements of homicide or murder, let alone the fact that these crimes are defined and penalized under
different laws and the former is malum prohibitum, while both the latter are mala in se. Hence, the fear that the majority's construction of the subject provision would violate the constitutional bar against double
jeopardy is unfounded.
The penalty which the trial court imposed in Criminal Case No. 8179 for illegal possession of firearm in its aggravated form must, however, be modified. The penalty prescribed by P.D. No. 1866 is death. Since
Section 19(1), Article III of the Constitution prohibits the imposition of the death penalty, the penalty next lower in degree, reclusion perpetual must be imposed.
WHEREFORE, the instant appeal is DISMISSED, and the challenged decision of 30 September 1993 of Branch 1 of the Regional Trial Court of Bohol finding accused-appellant DANIEL QUIJADA y
CIRCULADO guilty beyond reasonable doubt of the crime of murder in Criminal Case No. 8178 and of illegal possession of firearm in its aggravated form in Criminal Case No. 8179 is AFFIRMED. The penalty imposed
in the first case, as amended by the Order of 29 October 1993, is sustained; however, the penalty imposed in the second case is changed to Reclusion Perpetua from the indeterminate penalty ranging from Seventeen
(17) years, Four (4) months, and One (1) day, as minimum, to Twenty (20) years and One (1) day, as maximum.
Costs de oficio.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-42288

February 16, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
CORNELIO BAYONA, defendant-appellant.
Gervasio Diaz for appellant.
Office of the Solicitor-General Hilado for appellee.
VICKERS, J.:
This is an appeal from a decision of Judge Braulio Bejasa in the Court of First Instance of Capiz, finding the defendant guilty of a violation of section 416 of the Election Law and sentencing him to suffer imprisonment
for thirty days and to pay a fine of P50, with subsidiary imprisonment in case of insolvency, and to pay the costs.
The facts as found by the trial judge are as follows:
A eso de las once de la maana del dia 5 de junio de 1934, mientras se celebrahan las elecciones generales en el precinto electoral numero 4, situado en el Barrio de Aranguel del Municipio de Pilar, Provincia de
Capiz, el aqui acusado fue sorprendido por Jose E. Desiderio, que era entonces el representante del Departamento del Interior para inspecionar las elecciones generales en la Provincia de Capiz, y por el
comandante de la Constabularia F.B. Agdamag que iba en aquella ocasion con el citado Jose E. Desiderio, portando en su cinto el revolver Colt de calibre 32, No. 195382, Exhibit A, dentro del cerco que
rodeaba el edificio destinado para el citado colegio electoral numero 4 y a una distancia de 22 metros del referido colegio electoral. Inmediatament Jose E. Desiderio se incauto del revolver en cuestion.

La defensa, por medio del testimonio de Jose D. Benliro y de Dioscoro Buenvenida, trato de establecer que el aqui acusado paro en la calle que daba frente al colegio electoral numero 4 a invitacion de dicho
Jose D. Benliro y con el objeto de suplicarle al mencionado acusado para llevar a su casa a los electores del citado Jose D. Benliro que ya habian terminado de votar, y que cuando llegaron Jose E. Desidierio y el
comadante F.B. Agdamag, el aqui acusado estaba en la calle. Desde el colegio electoral hasta el sitio en que, segun dichos testigos, estaba el acusado cuando se le quito el revolver Exhibit a, hay una distancia de
27 metros.
Appellant's attorney makes the following assignments of error:
1. El Juzgado a quo erro al declarar que el apelante fue sorprendido con su revolver dentro del cerco de la casa escuela del Barrio de Aranguel, Municipio de Pilar, que fue habilitado como colegio electoral.
2. El Juzgado a quo erro al declarar al apelante culpable de la infraccion de la Ley Electoral querrellada y, por consiguiente, al condenarle a prision y multa.
As to the question of fact raised by the first assignment of error, it is sufficient to say that the record shows that both Jose E. Desiderio, a representative of the Department of the Interior, and Major Agdamag of the
Philippine Constabulary, who had been designated to supervise the elections in the Province of Capiz, testified positively that the defendant was within the fence surrounding the polling place when Desiderio took
possession of the revolver the defendant was carrying. This also disposes of that part of the argument under the second assignment of error based on the theory that the defendant was in a public road, where he had a
right to be, when he was arrested. The latter part of the argument under the second assignment of error is that if it be conceded that the defendant went inside of the fence, he is nevertheless not guilty of a violation of
the Election Law, because he was called by a friend and merely approached him to find out what he wanted and had no interest in the election; that there were many people in the public road in front of the polling place,
and the defendant could not leave his revolver in his automobile, which he himself was driving, without running the risk of losing it and thereby incurring in a violation of the law.
As to the contention that the defendant could not leave his revolver in his automobile without the risk of losing it because he was alone, it is sufficient to say that under the circumstances it was not necessary for the
defendant to leave his automobile merely because somebody standing near the polling place had called him, nor does the record show that it was necessary for the defendant to carry arms on that occasion.
The Solicitor-General argues that since the Government does not especially construct buildings for electoral precincts but merely utilizes whatever building there may be available, and all election precincts are within
fifty meters from some road, a literal application of the law would be absurd, because members of the police force or Constabulary in pursuit of a criminal would be included in that prohibition and could not use the
road in question if they were carrying firearms; that people living in the vicinity of electoral precincts would be prohibited from cleaning or handling their firearms within their own residences on registration and
election days;
That the object of the Legislature was merely to prohibit the display of firearms with intention to influence in any way the free and voluntary exercise of suffrage;
That if the real object of the Legislature was to insure the free exercise of suffrage, the prohibition in question should only be applied when the facts reveal that the carrying of the firearms was intended for the purpose
of using them directly or indirectly to influence the free choice of the electors (citing the decision of this court in the case of People vs. Urdeleon [G.R. No. 31536, promulgated November 20, 1929, not reported], where a
policeman, who had been sent to a polling place to preserve order on the request of the chairman of the board of election inspectors, was acquitted); that in the case at bar there is no evidence that the defendant went to
the election precinct either to vote or to work for the candidacy of anyone, but on the other hand the evidence shows that the defendant had no intention to go to the electoral precinct; that he was merely passing along
the road in front of the building where the election was being held when a friend of his called him; that while in the strict, narrow interpretation of the law the defendant is guilty, it would be inhuman and unreasonable
to convict him.
We cannot accept the reasons advanced by the Solicitor-General for the acquittal of the defendant. The law which the defendant violated is a statutory provision, and the intent with which he violated it is immaterial. It
may be conceded that the defendant did not intend to intimidate any elector or to violate the law in any other way, but when he got out of his automobile and carried his revolver inside of the fence surrounding the
polling place, he committed the act complained of, and he committed it willfully. The act prohibited by the Election Law was complete. The intention to intimidate the voters or to interfere otherwise with the election is
not made an essential element of the offense. Unless such an offender actually makes use of his revolver, it would be extremely difficult, if not impossible, to prove that he intended to intimidate the voters.
The rule is that in acts mala in se there must be a criminal intent, but in those mala prohibita it is sufficient if the prohibited act was intentionally done. "Care must be exercised in distinguishing the difference between
the intent to commit the crime and the intent to perpetrate the act. ..." (U.S. vs. Go Chico, 14 Phil., 128.)

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

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

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EMELITO SITCHON y TAYAG, accused-appellant.
DECISION
KAPUNAN, J.:
For beating to death the two-year old son of his common-law wife, accused-appellant Emelito Sitchon y Tayag was convicted of murder and sentenced to death by the Regional Trial Court of Manila. His case is
now before this Court on automatic review.
Appellant was charged in an information stating:
That on or about June 12, 1996, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously, with intent to kill and with treachery and evident premeditation, attack,
assault and use personal violence upon one MARK ANTHONY FERNANDEZ y TABORA a minor, 2 years old, by then and there mauling and clubbing him on the different parts of his body with the use of a steel
hammer and a wooden stick, approximately 18 inches long, thereby inflicting upon the latter mortal wounds which were the direct and immediate cause of his death thereafter.

CONTRARY TO LAW.[1]
Appellant pleaded not guilty to the above charge.[2] However, before testifying in his own defense on June 4, 1998, appellant admitted that he killed the victim and changed his plea to guilty.[3]
Five witnesses testified for the prosecution, namely, Lilia Garcia, a neighbor; the victim's eight-year old brother Roberto; the investigating officer, PO3 Paul Dennis Javier; Dr. Manuel Lagonera, medico-legal
officer of the National Bureau of Investigation (NBI); and Felicisima Francisco, a forensic chemist of the same agency.
Appellant lived in the second floor of a three-square meter house located at 2001 Batangas Street, Tondo, Manila. His neighbor of two months, Lilia Garcia, resided in the first floor of the same house.
At about 10:00 in the morning of June 12, 1996, Lilia was in front of the house attending to her children when she heard the sound of a boy crying. Curious, Lilia went up the stairway, her children in tow. The
open door of the upper floor allowed Lilia to witness appellant beating two-year old Mark Anthony Fernandez. From a distance of less than three arms length, Lilia saw appellant hit various parts of the boys body with
a piece of wood, about 14 inches in length and 2 inches in diameter. Appellant also banged the head of the boy against the wooden wall.
The beating went on for about one hour. Lilia then saw appellant carry the boy down the house to bring him to the hospital. The two-year old was already black and no longer moving.[4]
Eight-year old Roberto Fernandez is the elder brother of the victim, also known as Macky. According to Roberto, Macky had scattered his feces all over the house. Appellant, whom Roberto called Kuya Chito,
thus beat Macky with a belt, a hammer and a 2x2 piece of wood. Roberto could not do anything to help his brother because he was afraid Kuya Chito might also beat him up. When Kuya Chito brought Macky to the
hospital, his little brother, who could barely talk, was not crying anymore.[5]
Roberto identified the two pieces of wood[6] that appellant allegedly used in beating the victim. He also identified the T-shirt[7] that Macky wore when he died.
A certain Alice Valerio from the Galang Medical Hospital informed PO3 Paul Dennis Javier that a boy had been admitted there. When PO3 Javier went to the hospital, he found the boy already dead. He observed
that the child had wounds on the left middle finger, the right index finger and both feet. The child also had lacerations in the upper lip and contusions all over his head and body.
PO3 Javier proceeded to appellants house at No. 2001, Batangas Ext., Tondo, Manila. Human feces and fresh blood splattered on the floor. PO3 Javier recovered from the house the broken wooden sticks, the
steel hammer,[8] which were allegedly used to beat up the boy, as well as a bloodstained white T-shirt.
PO3 Javier then went to the house of appellants sister in Del Fierro St., Tondo, who informed him of matters relative to appellants identification. Thereafter, the police conducted a search operation
in Cavite where appellants mother lived but they did not find him there. Later that afternoon, PO3 Javier learned that appellant had surrendered to Station 3 of their district.
The following day, a staff member of the television program Magandang Gabi Bayan turned over to PO3 Javier a brown belt which appellant allegedly also used in beating the victim. Roberto Fernandez,
the victims brother, had given the belt to the staff member.[9]
Dr. Manuel Lagonera, medico-legal officer of the NBI, conducted the postmortem examination of the victims body on June 12, 1996 at 4:40 p.m. He found that the boy had suffered many injuries, including three
wounds at the head and the anterior chest, which could have been inflicted with the use of blunt objects such as a piece of wood or a fist. The child could have been dead three to four hours, or not more than eight
hours, prior to the postmortem examination. Dr. Lagonera concluded that the victim died of bilateral pneumonia secondary to multiple blunt traversal injuries or complication of the lungs due to said injuries.[10] The
autopsy report of Dr. Lagonera shows that Mark Anthony Fernandez sustained the following injuries:
EXTERNAL FINDINGS:
1. Multiple old scars, forehead.
2. Healing lacerated wound, left forehead.
INTERNAL FINDINGS:
1. Presence of left sub-aponeurotic hematoma, temporo-parietal region and over the mid-occipital region.

Felicisima M. Francisco, NBI forensic chemist, conducted an examination to determine the presence and grouping of human blood found on the steel hammer, the wooden sticks, and the T-shirt that were sent to
his office by P/Sr. Inspector Pedro Ramos Angulo, Jr. of the Western Police District in Manila. [12] She prepared Report No. B-96-941 stating that Specimen No. 1 or the steel hammer, was positive for human blood but
insufficient for blood group. Specimen Nos. 2 (the broken wooden sticks) and 3 (the white T-shirt) were also positive for human blood showing reactions of Group A.[13]
Only appellant, 40, a sidewalk vendor, testified for the defense. As stated earlier, appellant admitted killing the two-year old victim, the son of his live-in partner. He and the boys mother had lived together for
two years before the incident, starting when the boy was about a year old. He claimed he enjoyed a harmonious relationship with his partner and that he killed the boy only because he was under the influence of shabu,
marijuana and Valium 10 at that time. Appellant professed that he began using drugs in 1974 and that he had also taken drugs two weeks before the incident.
On June 12, 1996, appellant came upon Macky playing with his feces, scattering them all over the pillow, the bed sheets and the curtains. Appellant scolded the boy, Putang-ina ka Macky! Bakit mo ikinalat ng
ganyan ang tae mo? Halika, dadalhin kita sa baba para hugasan! Appellant got hold of Macky but the boy struggled to free himself from appellants grasp. Appellant, still reeling from the Valium 10 he had just
taken, became so angry that he picked up a broom with a wooden handle, and hit the boy. Appellant did not realize that he had hit Macky hard until he saw the boy sprawled on the floor, breathing with difficulty. He
dressed Macky and brought him to the Galang Medical Center at the corner of Abad Santos Avenue and Tayabas Street, Manila. He prayed to God that nothing serious would happen to the boy.
A lady doctor immediately attended to Macky. Appellant pleaded to the lady doctor to do all she can to save the child; otherwise, he would be in serious trouble. After examining the child, the doctor told appellant
that she could not do anything more Macky was dead. The same day, appellant surrendered to the police. He was brought to the Homicide Section at 3:00 p.m.
Explaining his change of plea, appellant clarified that the killing of the boy was "accidental." He reiterated that he was under the influence of drugs, which he had taken one after the other. He was a drug
dependent and, in fact, had been confined at the Tagaytay Rehabilitation Center. He said he was conscious when the incident happened but he simply did not realize that he had hit the child hard with the brooms
wooden handle. He denied having hit the boy with a hammer or having banged his head against the wall. He hoped the trial court would be lenient with him because of his voluntary surrender. He prayed that the
court would not impose upon him the death penalty.[14]
Nevertheless, on July 3, 1998, the trial court promulgated its decision, the dispositive portion of which reads:
WHEREFORE, this Court finds the accused, Emelito Sitchon y Tayag, guilty beyond reasonable doubt of the crime of murder and is sentenced to suffer the death penalty and to pay the costs. The accused is further
ordered to pay the mother of the victim Christina Tabora, moral and nominal damages in the respective sums of P100,000.00 and P50,000.00, plus death compensation in the sum of P50,000.00, with interest thereon
at the legal rate from this date until fully paid.
SO ORDERED.[15]
The Court entertains little doubt that appellant is guilty of the killing of Mark Anthony Fernandez. Appellants guilt was adequately established by the testimonies of Lilia Garcia and Roberto Fernandez, who both
saw appellant beat Macky. These testimonies were further corroborated by those of PO3 Paul Dennis Javier, Dr. Manuel Lagonera and Felicisima Francisco, as well as the various pieces of object evidence. Indeed,
appellant in open court admitted beating the poor child, which beating resulted in the latters death.
That appellant purportedly did not intend to kill the toddler would not exculpate him from liability. Article 4(1) of the Revised Penal Code provides that criminal liability shall be incurred by any person
committing a felony (delito) although the wrongful act done be different from that which he intended. The rationale of the rule is found in the doctrine that el que es causa de la causa es causa del mal causado (he
who is the cause of the cause is the cause of the evil caused).[16]
Thus, where the accused violently kicked the sleeping victim in vital parts of the latters body, the accused is liable for the supervening death as a consequence of the injuries. [17] Assuming, therefore, that appellant
merely intended to inflict physical injuries upon the boy, he is nevertheless liable for the death of the victim caused by such injuries.
The killing in this case was attended by treachery. There is treachery when the offender commits any of the crimes against persons, employing means, methods or forms in the execution thereof which tend directly
and especially to insure its execution without risk to himself arising from the defense which the offended party might make.[18] It is beyond dispute that the killing of minor children who, by reason of their tender years,
could not be expected to put up a defense, is treacherous.[19]
Evident premeditation is absent. For the court to appreciate evident premeditation, the prosecution must prove: (a) the time the accused decided to commit the crime; (b) an overt act manifestly indicating that he
clung to his determination; and (c) sufficient lapse of time between the decision and the execution to allow the accused to reflect upon the consequence of his act.[20]The prosecution failed to establish any of these
requisites.

The trial court incorrectly appreciated cruelty against the accused. The test in appreciating cruelty as an aggravating circumstance is whether the accused deliberately and sadistically augmented the wrong by
causing another wrong not necessary for its commission, or inhumanly increased the victims suffering or outraged or scoffed at his person or corpse.[21] The nature of cruelty lies in the fact that the culprit enjoys and
delights in making his victim suffer slowly and gradually, causing him moral and physical pain which is unnecessary for the consummation of the criminal act which he intended to commit. [22] The sheer number of
wounds, however, is not a test for determining whether cruelty attended the commission of a crime.[23]
The prosecution did not show that appellant enjoyed inflicting injuries upon the victim. The inordinate force employed by appellant appears to have been caused not by any sadistic bend but rather by the drugs
that diminished his capacity.
The trial court also considered intoxication as an aggravating circumstance. The Solicitor General defends this ruling, contending that appellants habitual drug addiction is an alternative circumstance analogous
to habitual intoxication under Article 15 of the Revised Penal Code:
Intoxication of the offender shall be taken into consideration as a mitigating circumstance when the offender has committed a felony in a state of intoxication, if the same is not habitual or subsequent to the plan to
commit said felony; but when the intoxication is habitual or intentional, it shall be considered as an aggravating circumstance.
The Court does not agree. Article 13 of the Revised Penal Code provides a list of mitigating circumstances, which work to reduce the accuseds penalty. Article 13(10) allows courts to consider any other
circumstance of a similar nature and analogous to those mentioned therein. Neither Article 14 of the same Code on aggravating circumstances[24] nor Article 15 on alternative circumstances,[25] however, contain a
provision similar to Article 13(10). Accordingly, the Court cannot consider appellants drug addiction as an aggravating circumstance. Criminal statutes are to be strictly construed and no person should be brought
within their terms who is not clearly within them.[26]
Appellant maintains that his plea of guilt mitigates his criminal liability. On this matter, this Court said in People v. Ramos:[27]
To effectively alleviate the criminal liability of an accused, a plea of guilt must be made at the first opportunity, indicating repentance on the part of the accused. In determining the timeliness of a plea of guilty, nothing
could be more explicit than the provisions of the Revised Penal Code requiring that the offender voluntarily confess his guilt before the court prior to the presentation of the evidence for the prosecution. It is wellsettled that a plea of guilty made after arraignment and after trial had begun does not entitle the accused to have such plea considered as a mitigating circumstance.
As appellant changed his plea only after the prosecution had rested its case and just when he was just about to testify, said mitigating circumstance is unavailing.
The trial court credited appellant with the mitigating circumstance of voluntary surrender. For voluntary surrender to be appreciated, these elements must be established: (1) the offender has not been actually
arrested; (2) he surrendered himself to a person in authority or an agent of a person in authority; and (3) his surrender was voluntary. [28] It is sufficient that the surrender be spontaneous and made in a manner clearly
indicating the intent of the accused to surrender unconditionally, either because he acknowledges his guilt or he wishes to save the authorities the trouble and expense which will necessarily be incurred in searching for
and capturing him.[29]
Appellant has failed to adequately prove voluntary surrender. While he claimed that he surrendered to the police on the same day that the victim was killed, he did not detail the circumstances like the time and
place of such surrender. Neither did appellant state to whom he surrendered. He did not indicate if the person was a person in authority or an agent of the latter. PO3 Javiers testimony that he learned of appellants
alleged surrender is hearsay and does not serve to corroborate appellants claim.
The Court, however, discerns no intention on the part of appellant to commit so grave a wrong against his victim. Appellants intention was merely to maltreat the victim, not to kill him. When appellant realized
the horrible consequences of his felonious act, he immediately brought the victim to the hospital.[30] Sadly, his efforts were for naught.
In view of the attendance of the aggravating circumstance of treachery, the killing of the victim is qualified to murder, punishable under Article 248 of the Revised Penal Code by reclusion perpetua to death. The
murder was attended by the mitigating circumstance of lack of intention to commit so grave a wrong and there is no aggravating circumstance. Hence, the lesser penalty of reclusion perpetua must be imposed upon
appellant.[31]
Appellant is liable for civil indemnity of P50,000.00 without proof of damages.[32] Moral damages that are recoverable for the mental anguish or emotional distress suffered by the heirs of the victim cannot be
awarded here as the prosecution did not present any evidence to justify its award.[33]

WHEREFORE, accused-appellant Emelito Sitchon y Tayag is found GUILTY beyond reasonable doubt of Murder, as defined and punished by Article 248 of the Revised Penal Code, and is sentenced to suffer
the penalty of reclusion perpetua. He is ordered to pay the heirs of Mark Anthony Fernandez civil indemnity in the amount of P50,000.00.
SO ORDERED.
SECOND DIVISION
[G.R. No. 125909. June 23, 2000]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HERMOGENES FLORA AND EDWIN FLORA, accused-appellants.
DECISION
QUISUMBING, J.:
Accused-appellants seek the reversal of the decision[1] dated November 7, 1995, of the Regional Trial Court, Branch 26, Santa Cruz, Laguna, in Criminal Case Nos. SC-4810, 4811 and 4812, finding them guilty beyond
reasonable doubt of the crimes of double murder and attempted murder, and sentencing them to reclusion perpetua, payment of P50,000.00 for indemnity, P14,000.00 for burial expenses and P619,800.00 for loss of
earning capacity in Crim. Case SC-4810 for the death of Emerita Roma; reclusion perpetua, payment of P50,000.00 as indemnity, P14,000.00 for burial expenses and P470,232.00 for loss of earning capacity for the
death of Ireneo Gallarte in Crim. Case SC-4811; and imprisonment from 2 years, 4 months and 1 day of prision correccional as minimum to 10 years of prision mayor and payment of P15,000.00 to Flor Espinas for
injuries sustained in Crim. Case SC-4812.
On February 26, 1993, Prosecution Attorney Joselito D.R. Obejas filed three separate informations charging appellants as follows:
Criminal Case No. 4810
"That on or about January 10, 1993, at around 1:30 oclock in the morning thereof, in Sitio Silab, Barangay Longos, municipality of Kalayaan, province of Laguna, and within the jurisdiction of this
Honorable Court, accused Hermogenes Flora @ Bodoy, conspiring and confederating with accused Edwin Flora @ Boboy, and mutually helping one another, while conveniently armed then with a
caliber .38 handgun, with intent to kill, by means of treachery and with evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault and shoot with the said firearm
one EMERITA ROMA y DELOS REYES, thereby inflicting upon the latter gunshot wounds on her chest which caused her immediate death, to the damage and prejudice of her surviving heirs.
That in the commission of the crime, the aggravating circumstances of treachery and evident premeditation are present."[2]
Criminal Case No. 4811
"That on or about January 10, 1993, at around 1:30 oclock in the morning thereof, in Sitio Silab, Barangay Longos, municipality of Kalayaan, province of Laguna, and within the jurisdiction of this
Honorable Court, accused HERMOGENES FLORA @ Bodoy, conspiring and confederating with accused Erwin [Edwin] Flora @ Boboy, and mutually helping one another, while conveniently armed
then with a caliber .38 handgun, with intent to kill, by means of treachery and with evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and shoot with the
said firearm one IRENEO GALLARTE y VALERA, thereby inflicting upon the latter gunshot wounds on his chest which caused his immediate death, to the damage and prejudice of his surviving heirs.
That in the commission of the crime, the aggravating circumstances of treachery and evident premeditation are present."[3]

Criminal Case No. 4812

"That on or about January 10, 1993, at around 1:30 oclock in the morning thereof, in Sitio Silab, Barangay Longos, municipality of Kalayaan, province of Laguna, and within the jurisdiction of this
Honorable Court, accused Hermogenes Flora @ Bodoy, conspiring and confederating with accused Erwin [Edwin] Flora @ Boboy, and mutually helping one another, while conveniently armed then
with a caliber .38 handgun, with intent to kill, by means of treachery and with evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and shoot with the said
firearm one FLOR ESPINAS y ROMA, hitting the latter on her shoulder, and inflicting upon her injuries which, ordinarily, would have caused her death, thus, accused performed all the acts of
execution which could have produced the crime of Murder as a consequence but which, nevertheless did not produce it by reason of a cause independent of their will, that is, by the timely and able
medical attendance given the said Flor Espinas y Roma, which prevented her death, to her damage and prejudice."[4]
During arraignment, both appellants pleaded not guilty. Trial thereafter ensued. Resolving jointly Criminal Cases Nos. SC-4810, SC-4811 and SC-4812, the trial court convicted both appellants for the murder of Emerita
Roma and Ireneo Gallarte, and the attempted murder of Flor Espinas. The dispositive portion of the decision reads:
"WHEREFORE, in the light of the foregoing, this Court finds as follows:
In CRIMINAL CASE NO. SC-4810, for the death of Emerita Roma, the Court finds both accused Hermogenes Flora and Edwin Flora guilty beyond reasonable doubt of the crime of Murder qualified by
treachery and sentences each of them to suffer the penalty of reclusion perpetua, with all the accessory penalties of the law, and to indemnify the heirs of the victim the sums of (a) P50,000.00 as
death indemnity; (b) P14,000.00 as expenses for wake and burial; and (c) P619,800 for lost (sic) of earning capacity, without any subsidiary imprisonment in case of insolvency and to pay the costs.
In CRIMINAL CASE NO. SC-4811, for the death of Ireneo Gallarte, the Court finds both accused Hermogenes Flora and Edwin Flora guilty beyond reasonable doubt of the crime of Murder, qualified
by treachery and with the aggravating circumstance of evident premeditation and sentences each of them to suffer the penalty of reclusion perpetua, with all the accessory penalties of the law, and to
indemnify the heirs of the victim the sums of (a) P50,000.00 as death indemnity; (b) P14,000.00 as expenses for wake and burial; and (c) P470,232.00 for lost (sic) of earning capacity, without any
subsidiary imprisonment in case of insolvency and to pay the costs.
In CRIMINAL CASE NO. SC-4812, for the injuries sustained by Flor Espinas, the Court finds both accused Hermogenes Flora and Edwin Flora guilty beyond reasonable doubt of the crime of
Attempted Murder and sentences each of them to suffer an indeterminate penalty of imprisonment from two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to ten (10)
years of prision mayor, as maximum, and to pay P15,000.00 to Flor Espinas as indemnity for her injuries and to pay the costs.
SO ORDERED."[5]
The facts of the case, borne out by the records, are as follows:
Days before the incident, appellant Hermogenes Flora alias "Bodoy," had a violent altercation with a certain Oscar Villanueva. Oscars uncle, Ireneo Gallarte, pacified the two.
On the evening of January 9, 1993, a dance party was held to celebrate the birthday of Jeng-jeng Malubago in Sitio Silab, Barangay Longos, Kalayaan, Laguna. Appellant Hermogenes Flora, allegedly a suitor of Jengjeng Malubago, attended the party with his brother and co-appellant Edwin Flora, alias "Boboy". Also in attendance were Rosalie Roma, then a high school student; her mother, Emerita Roma, and her aunt, Flor
Espinas. Ireneo Gallarte, a neighbor of the Romas, was there too.
The dancing went on past midnight but at about 1:30, violence erupted. On signal by Edwin Flora, Hermogenes Flora fired his .38 caliber revolver twice. The first shot grazed the right shoulder of Flor Espinas, then hit
Emerita Roma, below her shoulder. The second shot hit Ireneo Gallarte who slumped onto the floor. Rosalie, was shocked and could only utter, "si Bodoy, si Bodoy", referring to Hermogenes Flora. Edwin Flora
approached her and, poking a knife at her neck, threatened to kill her before he and his brother, Hermogenes, fled the scene.

The victims of the gunfire were transported to the Rural Health Unit in Longos, Kalayaan, Laguna, where Emerita and Ireneo died.[6]
Early that same morning of January 10, 1993, the police arrested Edwin Flora at his rented house in Barangay Bagumbayan, Paete, Laguna. Hermogenes Flora, after learning of the arrest of his brother, proceeded first
to the house of his aunt, Erlinda Pangan, in Pangil, Laguna but later that day, he fled to his hometown in Pipian, San Fernando, Camarines Sur.
The autopsy conducted by the medico-legal officer, Dr. Ricardo R. Yambot, Jr., revealed the following fatal wounds sustained by the deceased:
EMERITA ROMA
"a) Gunshot of entrance at the posterior chest wall near the angle of the axillary region measuring 1 cm. in diameter with clean cut inverted edges involving deep muscles, and
subcutaneous tissues and travel through both lobes of the lungs, including the great blood vessels.
About 400 cc of clotted blood was extracted from the cadaver. The bullet caliver 38 was extracted from the lungs.
The cause of her death was attributed to Hypovolemic shock secondary to massive blood loss secondary to gunshot wound of the posterior chest wall."[7]
IRENEO GALLARTE
"Gunshot wound of entrance at the left arm, measuring 1 cm. in diameter with clean cut inverted edges involving the deep muscles, subcutaneous tissues traveling through the
anterior chest wall hitting both lobes of the lungs and each great blood vessels obtaining the bullet fragments.
About 500 cc. of clotted blood was obtained from the cadaver."
His cause of death was attributed to Hypovelemic shock secondary to massive blood loss secondary to gunshot wound of the left arm."[8]
Flor Espinas submitted herself to a medical examination by Dr. Dennis Coronado. Her medical certificate [9] disclosed that she sustained a gunshot wound, point of entry, 2 x 1 cm. right supra scapular area mid scapular
line (+) contusion collar; and another gunshot wound with point of exit 1 x 1 cm. right deltoid area.
Three criminal charges were filed against the Flora brothers, Hermogenes and Edwin, before Branch 26 of the Regional Trial Court of Sta. Cruz, Laguna. During the trial, the prosecution presented two eyewitnesses,
namely, (1) Rosalie Roma, daughter of one of the victims, Emerita Roma, and (2) Flor Espinas, the injured victim. Rosalie narrated the treacherous and injurious attack by Hermogenes Flora against the victims. Flor
detailed how she was shot by him.
Felipe Roma, the husband of Emerita, testified that his wife was forty-nine (49) years old at the time of her death and was a paper mache maker, earning an average of one thousand (P1,000.00) pesos a week. He
claimed that his family incurred fourteen thousand (P14,000.00) pesos as expenses for her wake and burial.
Ireneo Gallartes widow, Matiniana, testified that her husband was fifty-two (52) years old, a carpenter and a substitute farmer earning one hundred (P100.00) to two hundred (P200.00) pesos a day. Her family spent
fourteen thousand (P14,000.00) pesos for his wake and burial.
The defense presented appellants Hermogenes and Edwin Flora, and Imelda Madera, the common-law wife of Edwin. Appellants interposed alibi as their defense, summarized as follows:

Version of Edwin Flora:

"Edwin Flora, 28 years old, testified that accused Hermogenes Flora is his brother. On January 10, 1993, around 1:30 in the morning, he was at Barangay Bagumbayan, Paete, Laguna in the house of
Johnny Balticanto, sleeping with his wife. Policemen came at said house looking for his brother Hermogenes. Replying to them that his brother was not living there, policemen took him instead to the
Municipal building of Paete and thereafter transferred and detained him to (sic) the Municipal building of Kalayaan.
He recalled that on January 9, 1993, after coming from the cockpit at about 3:00 p.m. he and his accused brother passed by the house of Julito Malubago. His brother Hermogenes was courting the
daughter of Julito Malubago. At about 6:00 p.m. he went home but his brother stayed behind since there would be a dance party that night."[10]
Version of Hermogenes Flora:
"Hermogenes Flora, 21 years old, testified that he did not kill Ireneo Gallarte and Emerita Roma and shot Flor Espina on January 10, 1993 at about 1:30 in the morning of Silab, Longos Kalayaan
Laguna.
On said date, he was very much aslept (sic) in the house of his sister Shirley at Sitio Bagumbayan, Longos, Kalayaan. From the time he slept at about 8:00 in the evening to the time he woke up at 6:00
in the morning, he had not gone out of her sisters house. He knew the victims even before the incident and he had no severe relation with them.
xxx
He also testified that in the morning of January 10, 1993, Imelda Madera came to their house and told him that his brother Edwin was picked-up by the policemen the night before. Taken aback, his
sister told him to stay in the house while she would go to the municipal hall to see their brother Edwin. Thereafter, his aunt and sister agreed that he should go to Bicol to inform their parents of what
happened to Edwin."[11]
Madera corroborated the testimony of her husband.[12]
As earlier stated, the trial court convicted accused-appellants of the crime of double murder and attempted murder. Appellants now raise this sole assigned error:
"THE TRIAL COURT ERRED IN CONVICTING THE TWO ACCUSED-APPELLANTS DESPITE THE FAILURE OF THE PROSECUTION TO MORALLY ASCERTAIN THEIR IDENTITIES AND
GUILT FOR THE CRIMES CHARGED."
At the outset, it may be noted that the trial court found both appellants have been positively identified. However, they challenge the courts finding that they failed to prove their alibi because they did not establish that
it was physically impossible for them to be present at the crime scene. According to the trial court, by Hermogenes own admission, the house of his sister Shirley, where appellants were allegedly sleeping, was only one
(1) kilometer away from Sitio Silab, where the offenses allegedly took place. The sole issue here, in our view, concerns only the plausibility of the appellants alibi and the credibility of the witnesses who identified them
as the perpetrators of the crimes charged.
For the defense of alibi to prosper, it is imperative that the accused establish two elements: (1) he was not at the locus delicti at the time the offense was committed, and (2) it was physically impossible for him to be at
the scene at the time of its commission.[13] The defense of alibi and the usual corroboration thereof are disfavored in law since both could be very easily contrived.[14] In the present case, appellants alibi is patently selfserving. Although Edwins testimony was corroborated by his common-law wife, it is ineffectual against the positive testimonies of eyewitnesses and surviving victims who contradicted his alibi. Moreover, an alibi
becomes less plausible as a defense when it is invoked and sought to be crafted mainly by the accused himself and his immediate relative or relatives.[15] Appellants defense of alibi should have been corroborated by a
disinterested but credible witness.[16] Said uncorroborated alibi crumbles in the face of positive identification made by eyewitnesses.[17]

In their bid for acquittal, appellants contend that they were not categorically and clearly identified by the witnesses of the prosecution. They claim that the testimonies of the said witnesses were not entitled to credence.
They assail the credibility of two eyewitnesses, namely Rosalie Roma and Flor Espinas, because of the alleged inconsistencies in their testimonies. For instance, according to appellants, Rosalie Roma testified she was in
the dance hall when the gunshots were heard, and that she was dancing in the middle of the dance hall when Hermogenes shot Emerita Roma, Ireneo Gallarte and Flor Espinas,
"Q....Where were you when Hermogenes Roma shot these Ireneo Gallarte, Emerita Roma and Flor Espinas?
A....I was dancing, sir. (Emphasis ours.)
Q....And how far were you from Hermogenes Flora when he shot these persons while you were dancing?
A....Two armslength from me only, sir."[18]
However, to a similar question, later in her testimony, she replied,
"Q....And where were these Emerita Roma, Your mother, Ireneo Gallarte and Flor Espinas when Hermogenes Flora shot at them?
A....They were beside each other.
Q....And how far were you from these 3 persons?
A....Because they were standing beside the fence and I was only seated near them, sir."[19] (Emphasis ours.)
On this issue, we do not find any inconsistency that impairs her credibility or renders her entire testimony worthless. Nothing here erodes the effectiveness of the prosecution evidence. What counts is the witnesses
admitted proximity to the appellants. Was she close enough to see clearly what the assailant was doing? If so, is there room for doubt concerning the accuracy of her identification of appellant as one of the malefactors?
Appellants argue that since the attention of witness Flor Espinas was focused on the dance floor, it was improbable for her to have seen the assailant commit the crimes. On cross-examination, said witness testified that
while it was true she was watching the people on the dance floor, nonetheless, she also looked around (gumagala) and occasionally looked behind her and she saw both appellants who were known to her.[20] Contrary to
appellants contention that Flor did not have a sufficient view to identify the assailants, the trial court concluded that Flor was in a position to say who were in the party and to observe what was going on. On this point,
we concur with the trial court.
Well-settled is the rule that findings of the trial court on the credibility of witnesses deserve respect, for it had the opportunity to observe first-hand the deportment of witnesses during trial.[21]Furthermore, minor
inconsistencies do not affect the credibility of witnesses, as they may even tend to strengthen rather than weaken their credibility.[22] Inconsistencies in the testimony of prosecution witnesses with respect to minor
details and collateral matters do not affect either the substance of their declaration, their veracity, or the weight of their testimony.[23] Such minor flaws may even enhance the worth of a testimony, for they guard
against memorized falsities.
Appellants assert that Flor Espinas and Rosalie Roma were biased because they are relatives of the victim Emerita Roma. However, unless there is a showing of improper motive on the part of the witnesses for testifying
against the accused, the fact that they are related to the victim does not render their clear and positive testimony less worthy of credit. On the contrary, their natural interest in securing the conviction of the guilty would
deter them from implicating other persons other than the culprits, for otherwise, the latter would thereby gain immunity.[24]

Here, appellants did not present any proof of improper motive on the part of the eyewitnesses in pointing to the Flora brothers as the perpetrators of the crime. There is no history of animosity between them. Emerita
Roma and Flor Espinas were merely innocent bystanders when hit by gunfire. Where eyewitnesses had no grudge against the accused, their testimony is credible.[25] In the absence of ulterior motive, mere relationship
of witnesses to the victim does not discredit their testimony.[26]
Coming now to the criminal responsibility of appellants. In the present case, when Hermogenes Flora first fired his gun at Ireneo, but missed, and hit Emerita Roma and Flor Espinas instead, he became liable for
Emeritas death and Flors injuries. Hermogenes cannot escape culpability on the basis of aberratio ictus principle. Criminal liability is incurred by any person committing a felony, although the wrongful act be different
from that which he intended.[27]
We find that the death of Emerita and of Ireneo were attended by treachery. In order for treachery to exist, two conditions must concur namely: (1) the employment of means, methods or manner of execution which
would ensure the offenders safety from any defense or retaliatory act on the part of the offended party; and (2) such means, method or manner of execution was deliberately or consciously chosen by the
offender.[28] When Hermogenes Flora suddenly shot Emerita and Ireneo, both were helpless to defend themselves. Their deaths were murders, not simply homicides since the acts were qualified by treachery. Thus, we
are compelled to conclude that appellant Hermogenes Flora is guilty beyond reasonable doubt of double murder for the deaths of Emerita Roma and Ireneo Gallarte, and guilty of attempted murder of Flor Espinas.
Is the other appellant, Edwin Flora, equally guilty as his brother, Hermogenes? For the murder of Ireneo Gallarte, was there conspiracy between appellants? For conspiracy to exist, it is not required that there be an
agreement for an appreciable period prior to the occurrence. It is sufficient that at the time of the commission of the offense, the accused and co-accused had the same purpose and were united in execution.[29] Even if
an accused did not fire a single shot but his conduct indicated cooperation with his co-accused, as when his armed presence unquestionably gave encouragement and a sense of security to the latter, his liability is that of
a co-conspirator.[30] To hold an accused guilty as a co-conspirator by reason of conspiracy, it must be shown that he had performed an overt act in pursuance or furtherance of the conspiracy.[31] Edwins participation as
the co-conspirator of Hermogenes was correctly appreciated by the trial court, viz.:
"Edwin Flora demonstrated not mere passive presence at the scene of the crime. He stayed beside his brother Hermogenes, right behind the victims while the dance party drifted late into the night till
the early hours of the morning the following day. All the while, he and his brother gazed ominously at Ireneo Gallarte, like hawks waiting for their prey. And then Edwins flick of that lighted cigarette
to the ground signaled Hermogenes to commence shooting at the hapless victims. If ever Edwin appeared acquiescent during the carnage, it was because no similar weapon was available for him. And
he fled from the crime scene together with his brother but not after violently neutralizing any obstacle on their way. While getting away, Edwin grabbed Rosalie Roma and poked a knife at her neck
when the latter hysterically shouted "si Bodoy, Si Bodoy," in allusion to Hermogenes Flora, whom she saw as the gunwielder. All told, Edwin, by his conduct, demonstrated unity of purpose and design
with his brother Hermogenes in committing the crimes charged. He is thus liable as co-conspirator."[32]
However, we cannot find Edwin Flora similarly responsible for the death of Emerita Roma and the injury of Flor Espinas. The evidence only shows conspiracy to kill Ireneo Gallarte and no one else. For acts done
outside the contemplation of the conspirators only the actual perpetrators are liable. In People v. De la Cerna, 21 SCRA 569, 570 (1967), we held:
"x x x And the rule has always been that co-conspirators are liable only for acts done pursuant to the conspiracy. For other acts done outside the contemplation of the co-conspirators or which are not
the necessary and logical consequence of the intended crime, only the actual perpetrators are liable. Here, only Serapio killed (sic) Casiano Cabizares. The latter was not even going to the aid of his
father Rafael but was fleeing away when shot."
To conclude, appellant Edwin Flora is guilty beyond reasonable doubt only of the murder of Ireneo Gallarte. He has no liability for the death of Emerita Roma nor for the injuries of Flor Espinas caused by his coaccused Hermogenes Flora.
WHEREFORE, the decision of the trial court is hereby MODIFIED as follows:
(1)....Appellants Hermogenes Flora and Edwin Flora are found GUILTY beyond reasonable doubt of the MURDER of Ireneo Gallarte and sentenced to each suffer the penalty ofreclusion perpetua and
to pay jointly and severally the heirs of Ireneo Gallarte in the sum of P50,000.00 as death indemnity; P14,000.00 compensatory damages for the wake and burial; and P470,232.00 representing loss
of income without any subsidiary imprisonment in case of insolvency.

(2)....Hermogenes Flora is found GUILTY beyond reasonable doubt of the MURDER of Emerita Roma and the ATTEMPTED MURDER of Flor Espinas. For the MURDER of EMERITA ROMA,
Hermogenes Flora is sentenced to suffer the penalty of reclusion perpetua, to indemnify the heirs of Emerita Roma in the sum of P50,000.00 as death indemnity, P14,000.00 as expenses for wake
and burial, and P619,800.00 for loss of earning capacity, without any subsidiary imprisonment in case of insolvency. For the ATTEMPTED MURDER of Flor Espinas, Hermogenes Flora is sentenced
to suffer the penalty of imprisonment from two (2) years, four (4) months and one (1) day of prision correccional as minimum to ten (10) years of prision mayor, as maximum, and to pay P15,000.00
to Flor Espinas as indemnity for her injuries.
(3)....Appellant Edwin Flora is ACQUITTED of the murder of Emerita Roma and the attempted murder of Flor Espinas.
Costs against appellants.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-35574 September 28, 1984
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
VALENTINA MANANQUIL Y LAREDO, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Herminio Sugay for defendant-appellant.

CUEVAS, J.:
In an amended Information 1 filed before the then Court of First Instance of Rizal, VALENTINA MANANQUIL y LAREDO was accused of PARRICIDE allegedly committed as follows:
That on or about the 6th day of March, 1965, in Pasay City, Philippines, and within the jurisdiction of this Hon. Court, the abovenamed accused, did then and there wilfully, unlawfully and feloniously,
with evident premeditation, that is, having conceived and deliberated to kill her husband, Elias Day y Pablo, with whom she was united in lawful wedlock, enter (sic) the NAWASA building situated at
Pasay City, where said Elias Day y Pablo was working as a security guard; and the said accused, having in her possession a bottle containing gasoline suddenly and without warning, poured the
contents on the person of her husband, Elias Day y Pablo, ignited the gasoline, as a result of which, said Elias Day y Pablo suffered burns and injuries which subsequently caused his death.
Contrary to law 2

Tried after pleading "NOT GUILTY" upon arraignment, accused was convicted and thereafter sentenced toreclusion perpetua to indemnify the heirs of the deceased in the amount of P12,000.00; and to pay costs.
From the aforesaid judgment, she ventilated an appeal to the then Court of Appeals (which referred the appeal to us considering that the penalty imposed was reclusion perpetua, assailing her aforesaid conviction and
contending that the trial court erred: 1) in convicting her solely on the basis of the alleged extrajudicial confession; 2) in finding that Pneumonia was a complication of the burns sustained by the victim; 3) in not finding
her not to have cause the death of the deceased; and 4) in not acquitting her at least on ground of reasonable doubt.
The prosecution's version of the incident as summarized in the People's Brief is as follows:
On March 6, 1965, at about 11:00 o'clock in the evening, appellant went to the NAWASA Building at Pasay City where her husband was then working as a security guard. She had just purchased ten
(10) centavo worth of gasoline from the Esso Gasoline Station at Taft Avenue which she placed in a coffee bottle (t.s.n., p. 13, January 13, 1969). She was angry of her husband, Elias Day y Pablo,
because the latter had burned her clothing, was maintaining a mistress and had been taking all the food from their house. Upon reaching the NAWASA Building, she knocked at the door. Immediately,
after the door was opened, Elias Day shouted at the appellant and castigated her saying, "PUTA BUGUIAN LAKAW GALIGAON" (t.s.n., p. 14, Id). The appellant tired of hearing the victim, then got
the bottle of gasoline and poured the contents thereof on the face of the victim (t.s.n., p. 14, Id). Then, she got a matchbox and set the polo shirt of the victim a flame. (Exhs. "A" and "A-1", p. 197, Rec.)
The appellant was investigated by elements of the Pasay City Police to whom she gave a written statement (Exh. "A", p. 197, Rec.) where she admitted having burned the victim.
Upon the other hand, the victim was taken first to the Philippine General Hospital and then to the Trinity General Hospital at Sta. Ana, Manila, when he died on March 10, 1965. (Exh. "C", p. 208, rec.)
due to pneumonia, lobar bilateral Burns 2 secondary. 3
Appellant's story on the other hand runs, thus:
It was before 10:00 o'clock p.m. when appellant returned from Olongapo City. She fed her grandson and put him to bed. After filing the tank with water, she remembered that the next day was a
Sunday and she had to go to church. Her shoes were dirty but there was no gasoline with which to clean them. Taking with her an empty bottle of Hemo, she left for a nearby gasoline station and
bought ten centavos worth of gasoline. Then she remembered that her husband needed gasoline for his lighter so she dropped by his place of work. (p. 13, Ibid.)
Appellant saw her husband inside a bonding of the NAWASA standing by the window. As the iron grille was open, she entered and knocked at the wooden door. Elias opened the door, but when he saw
his wife he shouted at her. Appellant said that she had brought the gasoline which he needed for his lighter, but Elias, who was under the influence of liquor, cursed her thus: "PUTA BUGUIAN
LAKAW GALIGAON". Elias continued shouting and cursing even as appellant told him that she had come just to bring the gasoline that he wanted. Appellant trembled and became dizzy. She was
beside herself and did not know that she was sprinkling the gasoline on her husband's face. She was tired and dizzy and had to sit down for a while. Then she remembered her grandson who was alone
in the house so she went home leaving her husband who was walking to and fro and not paying attention to her. (pp. 13-14, Ibid., p. 2, March 20, 1969)
She went to bed but could not sleep. She went back to the NAWASA compound to apologize to her husband. Upon reaching the NAWASA, however, she found that police officers were present. Her
husband was walking all around still fuming mad, and when he saw her he chased her. A policeman pulled appellant aside and asked if she was the wife of Elias. When she replied in the affirmative,
the police officer accused her of burning her husband. She denied the accusation. But the police took her to the headquarters, and prepared a written statement, Exhibits A, A-1. Appellant was made to
sign said statement upon a promise that she would be released if she signed it. Although she did not know the contents, she signed it because of the promise. (pp. 14-16. Id.; p. 5, March 20,1969) 4
Appellant's assigned errors boil down to two (2) main issues: (1) whether or not appellant's extrajudicial confession was voluntarily given; and (2) whether or not the burns sustained by the victim contributed to cause
pneumonia which was the cause of the victim's death.
Right after the burning incident, appellant was picked up by the police operatives of Pasay City. She was thereafter investigated by Sgt. Leopoldo Garcia of the Pasay City Police who took her statement in Tagalog and in
Question and Answer form which was reduced into writing. 5 After Sgt. Garcia was through taking her statement, she was brought to Fiscal Paredes who asked her questions regarding the said statement and its

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

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

Indeed, the more we scrutinize appellant's alibi and explanation, we become more convinced of the falsity and incredibility of her assertions. For instance, her claim that her purpose in buying gasoline at so an unholy
hour of the night, past ten o clock in the evening, solely for the purpose of cleaning her shoes which she would wear in going to church the following Sunday, hardly recommend acceptance. That she dropped at her
husband's place of work also at the middle of the night for no other purpose except to deliver to him gasoline for his cigarette lighter, is likewise too taxing upon one's credulity . . . more so if we litem to consider the
previous spat she had with the deceased in the morning of that fatal day.
In her vain attempt to exculpate herself, appellant would like Us to believe that her husband died of pneumonia because the latter drank liquor as shown by the toxicology report indicating presence of alcohol in the
victim's body. Hence, assuming she set her husband on fire, she is not criminally liable for her husband's death.
We are not persuaded by appellant's aforesaid ratiocination
The claim that the victim drank liquor while confined in the hospital would not suffice to exculpate the appellant. For as testified by Dr. Reyes, pneumonia could not be caused by taking alcohol. In fact, alcohol,
according to him, unless taken in excessive dosage so as to produce an almost comatose condition would not cause suffocation nor effect a diminution of the oxygen content of the body. 10 In fine, as correctly pointed
out by the Hon. Solicitor General, the victim's taking of liquor was not an efficient supervening cause of his death which took place on March 10, 1965, just four days after the burning.
The cause of death as shown by the necropsy report is pneumonia, lobar bilateral. Burns 2' secondary. There is no question that the burns sustained by the victim as shown by The post-mortem findings immunity about
62% of the victim's entire body. The evidence shows that pneumonia was a mere complication of the burns sustained. While accepting pneumonia as the immediate cause of death, the court a quo held on to state that
this could not litem resulted had not the victim suffered from second degree burns. It concluded, and rightly so, that with pneumonia having developed, the burns became as to the cause of death, merely contributory.
We agree.
Appellant's case falls squarely under Art, 4, Par. 1 of the Revised Penal Code which provides:
Art. 4. Criminal Liability. Criminal liability shall be incurred.
1. By any person committing a felony (delito) although the wrongful act done be different from that which he intended.
the essential requisites of which are: (a) that an intentional felony has been committed; and (b) that the wrong done to the aggrieved party be the direct, natural and logical consequence of the felony committed by the
offender. 11
The reason for the rule as spelled out in the earlier cases of PP vs. Moldes, 61 Phil. 1, 3 & 4; and PP vs. Quianzon, 62 Phil. 162, citing 13 RCL 748, 751 is as follows
One who inflicts injury on another is deemed guilty of homicide if the injury contributes immediately or immediately to the death of such other. The fact that other causes contribute to the death does
not relieve the actor of responsibility. He would still be liable "even if the deceased might litem recovered if he had taken proper care of himself, or submitted to surgical operation, or that unskilled or
improper treatment aggravated the wound and contributed to the death, or that death was men." caused by a surgical operation rendered necessary by the condition of the wound. The principle on
which this rule is founded is one of universal application. It lies at the foundation of criminal jurisprudence. It is that every person is held to contemplate and be responsible for the natural
consequences of his own acts. If a person inflicts a wound with a deadly weapon in a manner as to put life in jeopardy, and death follows as a consequence of this felonious and wicked act, it does not
alter its nature or diminish its criminality to prove that other causes cooperated in producing the fatal result. Neglect of the wound or its unskilled and improper treatment which are themselves
consequences of the criminal act, must in law be deemed to litem been among those which are in contemplation of the guilty party and for which he must be responsible The rule has its foundation on
a wise and practical policy. A different doctrine would tend to give immunity to crime and to take away from human life a salutary and essential safeguard. Amidst the conflicting theories of medical
men and the uncertainties attendant upon the treatment of bodily ailments and injuries it would be easy in many cases of homicide to raise a doubt as to the immediate cause of death, and thereby
open a wide door by which persons guilty of the highest crime might escape conviction and punishment.

In convicting the accused, the trial court imposed upon her the obligation to indemnify the heirs of the deceased only in the amount of P12,000.00. That should now be increased to P30,000.00.
WHEREFORE, except as thus modified, the judgment appealed from is hereby AFFIRMED with costs against appellant.
It appearing however that appellant Valentina Mananquil is now 71 years of age, this Court recommends her for executive clemency. For the purpose, let His Excellency, President Ferdinand E. Marcos, be furnished
with a copy of this decision thru the Hon. Minister of Justice.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 39519 November 21, 1991
PEOPLE OF THE PHILIPPINES, petitioner-appellee
vs.
DANIEL PINTO, JR. and NARCISO BUENAFLOR, JR., defendants-appellants.
The Solicitor General for petitioner-appellee.
K.V. Faylona & Associates for defendants-appellants.

FERNAN, C.J.:p
As an aftermath of the mission of the Legazpi City Police Department to serve on Christmas day in 1970 a search warrant on Francisco Bello who was allegedly training a private army, patrolmen Daniel Pinto, Jr. and
Narciso Buenaflor, Jr. were found guilty beyond reasonable doubt by the then Circuit Criminal Court in said city, of killing not only Bello but also 9-year-old Richard Tiongson and Rosalio Andes and seriously wounding
Maria Theresa Tiongson. The dispositive portion of the decision of June 13, 1974. 1 reads:
WHEREFORE, the Court finds the accused Narciso Buenaflor, Jr. and Daniel Pinto, Jr. GUILTY beyond reasonable doubt of crime of:
(a) MURDER in CCC-X-288-Albay, and hereby sentences each of them to suffer imprisonment for the rest of their lives (Reclusion Perpetua); to indemnify the heir of Rosalie Andes
in the amount of Twenty-five Thousand (P25,000.00) Pesos, jointly and severally; and to pay the costs;

(b) MURDER in CCC-X-289-Albay, and hereby sentences each of them to suffer imprisonment for the rest of their lives (Reclusion Perpetua); to indemnify the heirs of Francisco
Bello in the amount of Twenty-five Thousand (P25,000.00) Pesos, jointly and severally; and to pay the costs;
(c) MURDER in CCC-X-298-Legazpi City, and hereby sentences each of them to suffer imprisonment for the rest of their lives (Reclusion Perpetua); to indemnify the heirs of
Richard Tiongson in the amount of Twenty-five Thousand (P25,000.00) Pesos, jointly and severally; and to pay the costs;
(d) FRUSTRATED MURDER in CCC-X-299 Legazpi City, and hereby sentences each of them to imprisonment of from Six (6) Years and One (1) Day of Prision Mayor as Minimum,
to Twelve (12) Years and One (1) Day of Reclusion Temporal as Maximum; to indemnify the victim, Maria Theresa Tiongson, in the amount of Eight Thousand (P8,000.00) Pesos,
jointly and severally; and to pay the costs.
In addition to the foregoing the accused are sentenced to suffer perpetual disqualification from public office.
According to the prosecution, on December 25, 1970, the Legazpi City Police secured from the City Court of Legazpi a warrant for the search of the house and premises of Francisco Bello in Mariawa, Legazpi City on the
ground that the police had probable cause to believe that Bello illegally possessed a garand rifle, a thompson submachinegun and two automatic pistols. 2 The police had earlier undertaken a surveillance of Bello on the
basis of information it had received that he was conducting an "obstacle course" or training men for combat since October, 1970. 3
Upon receipt of the search warrant, the Chief of Police, Dr. Solomon Adornado, 4 called his officers to a "confidential conference" at the residence of Mayor Gregorio Imperial. Present at the said conference were the
mayor, his secretary, and the officers of the patrol division, secret service and the administration of the city police. The Chief of Police was assisted by Major Alfredo Molo, head of the intelligence division of the city
police, in briefing the group on how to serve the search warrant and to arrest Bello as the latter had been identified as the one who shot Salustiano Botin the night before. At the time of the briefing, no warrant of arrest
had yet been issued against Bello. 5
The policemen were divided into three teams and around five members of the Philippine Constabulary (PC) who were also present were assigned to the different teams. 6 Team 3 was placed under the charge of Sgt.
Salvador de la Paz with a policeman named Luna and appellants Buenaflor and Pinto as members. Wilfredo Romero was the PC member assigned to the team. 7 Except for Romero and Pinto who were each armed with
a carbine, the policemen of Team 3 each carried a .38 caliber pistol. 8
Loaded in four vehicles, the three teams proceeded from the residence of the Mayor to barrio Homapon arriving there at around seven o'clock in the evening. The four vehicles met at the junction of Homapon and the
road to Mariawa. They had decided to ride on the way to Mariawa when one of the jeeps bogged down because of the muddy road. Hence, the three teams had to walk in single file on the right side of the road with the
teams had to walk in single file on the right side of the road with the teams maintaining a distance o around ten meters between them. 9
Suddenly, Romero noticed the members of his team running. He ran with them and then he heard someone shout, "Pondo!" (stop). The shout was followed by a shot and then a burst of gunfire. The team had by then
deployed to the right side of the road. When Romero checked the men by shouting the agreed password of "bayawas" for which the person challenged answered "santol", 10 he found that Buenaflor was 5 meters in front
of him "at the bank of the road", Pinto was two meters to the right of Buenaflor, Sgt. de la Paz was two meters to his (Romero's) right, Luna who was holding a walkie-talkie was to his left and another policeman was in
front of Luna. 11 When Romero heard the gunburst, he saw "flashes of fire" "just in front" of him or from the place where Buenaflor was. 12
The area where the team deployed was lower in elevation than the road but Romero heard the rumbling of a jeep going towards the direction of Homapon when he heard the burst of gunfire and saw the flashes of fire
from the direction of Buenaflor. 13
On the jeep which passed by the deployed policemen were Fr. Felix Cappellan, Mrs. Zenaida Stilianopolous Tiongson, her six children and the driver. They had just come from a lechonada party in the hacienda in
Mariawa of Mrs. Purificacion Napal Anduiza, the mother of Francisco Bello. Fr. Capellan had celebrated mass to commemorate the death anniversary of Mrs. Anduiza's father. When Fr. Capellan decided to go back to
his parish, the Anduiza's offered their jeep for his transportation. 14 Seated on the front seat of the "McArthur type" jeep which had only a canvass top but no cover on the sides and back, 15 were the driver, Mrs.
Tiongson with a child on her lap and Fr. Capellan. 16 Richard Tiongson was seated on the steel seat behind the driver while his sister Maria Theresa was beside him. 17 The three other children were also seated at the
back.

After crossing the creek on their way to Homapon and as the driver "changed to high gear with a dual", 18 Mrs. Tiongson saw blinking lights some 300 yards ahead. 19 Fearing that there might be "people with bad
intentions" or hold-uppers, Fr. Capellan told the driver to go faster. 20 Then Fr. Capellan heard one shot and after a few seconds and around 50 meters ahead, there was rapid firing with some of the bullets hitting the
jeep. 21 According to Mrs. Tiongson, the widow of Col. Angel Tiongson of the PC, the rapid firing sounded "automatic". 22 The firing came from the left rear side of the jeep. 23
Before they were fired upon, Maria Theresa saw a man lying flat on his stomach while holding a gun on the left side of the road just ahead of the jeep. 24 Through the light of the jeep, Maria Theresa noticed that the
man was wearing a jacket and a hat and he was on the shoulder of the road. 25 After passing the man, the rapid firing ensued. Richard said "ugh" and fell on the floor of the jeep. Maria Theresa was about to hold
Richard when she felt herself hit at the buttocks. Then they all screamed. 26
The jeep continued its fast uphill climb until it reached a level area and almost fell into a ditch were it not for a clump of banana plants. The jeep came to a full stop. Fr. Capellan saw three men with flashlights but he
could not distinguish their faces as it was dark and their flashlights were focused on the ground. 27 Mrs. Tiongson saw a PC jeep and some cars and, believing that one of the cars was that of the Mayor, she called Tia
Citang, the mother of the mayor, at the same time identifying herself.28 She must have managed to take Richard from the jeep and was cuddling him on the ground near the left rear end of the jeep when she requested
Fr. Capellan to administer extreme unction on Richard. As Fr. Capellan had no holy oil, he gave the boy absolution. 29
Even after Mrs. Tiongson had identified herself as the widow of Col. Tiongson to the men around, nobody listened to her appeal for help. When she approached Chief of Police Adornado, she hit him and asked him why
they shot her and her companions. The Chief of Police replied that the shooting was no longer his fault because Mrs. Tiongson and her companions did not stop when told to do so. She requested the Chief of Police for a
car in which to take Richard to the hospital or for a driver and even for a walkie-talkie so she could talk to Mayor Imperial but the Chief of Police did not heed her pleas. 30 (TSN, February 9, 1972, pp. 17-22).
A few minutes later, a jeep driven by Fernando Anduiza arrived. Mrs. Tiongson and her children boarded the jeep. At the intersection of the road to Legazpi City proper and the road to Mariawa, the area was brightly
lighted and armed men ordered them to put their hands up. They were told to alight from the jeep to be searched but Mrs. Tiongson begged the lieutenant manning the area to let them pass so they could bring her two
children to the hospital. 31
Richard and Maria Theresa were brought to the Sacred Heart Clinic in Legazpi City. Thirteen-year-old Maria Theresa was treated for a gunshot wound at the "right upper quadrant of the right buttocks." 32 Her pelvis
and abdomen were x-rayed. One of the x-ray plates 33 revealed an oval spot indicating a foreign body in Maria Theresa's pelvis. The attending physician decided not to extract the foreign body as Maria Theresa was not
a "very good surgical risk".34 The hospital charged P282.90 for Theresa's hospitalization. 35 She was later brought by an army plane to the PC Station Hospital in Camp Crame, Quezon City for further treatment and
hospitalization 36 but the foreign body was never removed from her pelvic area.
Richard sustained a gunshot wound at the back about the level of the 5th lumbar vertebrae. The bullet travelled obliquely to the left kidney, the lesser sac, the liver and the right auricle.37 Richard was operated at the
hospital but he died at 8:45 the following morning due to massive hemorrhage caused by the gunshot wound. 38 When he was autopsied, a lead slug was found embedded in his heart.39 His mother paid
P862.35 40 for his hospitalization and was charged P200 by the church. Mayor Imperial paid P500 to Funeraria Oro for Richard's burial.41
Meanwhile, according to Chief of Police Adornado, after the shooting incident involving the Tiongsons, the police pursued their mission to serve the search warrant on Bello. When they reached Bello's residence in
Mariawa, they were met by a "volley of fire." Suddenly, the house was lighted and a certain Escober met him. Although Bello and his parents, Mr. and Mrs. Anduiza, were not around, the police searched the area and
found a Japanese Springfield rifle, ammunition of a garand rifle, ammunition of a carbine, live ammunition for a .38 caliber pistol and 380 bullets for an automatic pistol. 42 Thereafter, the Chief of Police declared the
search terminated and the entire searching party left for headquarters. 43 The following day, he issued Special Order No. 24 which states:
December 26, 1970
To All Concerned:
The following men mentioned below are hereby assigned at Homapon until their mission is accomplished, effective as of today, December 26, 1970:

1 Sgt. Salvador de la Paz, In-charge

2. Pfc. Carlos Barbin, member
3. Pat. Eduardo Arcinue, member
4. Pat. Juan Luna, member
5. Pat. Daniel Pinto, member
6. Pat. Celedonio Abordo, member
7. Pat. Narciso Buenaflor, member
Report progress of mission any time of day through the radio system. For strict compliance.
(Sgd.)
SOLOMON B. ADORNADO
Chief of Police
Copy furnished: The Honorable City Mayor, The Patrol Command, LCPD, the OIC and file .44
The mission was to keep peace and order in the specified place and to determine the whereabouts of Bello.45 It was not necessary to specify the mission in the order itself because the Chief of Police "had a close
understanding with the squad that went to Homapon". 46For a "convenient tactical deployment," Sgt. De la Paz further divided Team 3 into three groups with patrolmen Buenaflor and Pinto composing Group II.47
At noontime of December 26, 1970, Francisco Bello, more popularly known as Paquito, arrived at the residence of Inocencia Malbas in sitio Ando, Talahib, Daraga, Albay. He was with Inocencia's brother, Francisco
Andes, Francisco's son Ananias, and Leoncio Mostoles. Rosalio, another son of Francisco, also arrived with the group. 48Bello requested Inocencia and her husband that he and his group be allowed to spend the night
in Inocencia's house. 49
Inocencia woke up at around 5:00 o'clock in the morning of December 27, 1970. At the sala, on her way from her room to the kitchen, she saw Bello sleeping alone. From the kitchen, Inocencia went to the balcony
through the sala. On her way back to the kitchen, she noticed that Bello, who was wearing a red shirt and an underwear, had awakened. Bello opened the window, spat out and went to the balcony. He reentered the sala
and saying that it was cold, Bello put on his clothes and pants. He also wore his jacket. He went back to the balcony and asked for water. Inocencia's husband gave Bello a glass of water. After gurgling, Bello placed the
glass on the window sill and ask Inocencia's husband for a cup of coffee.50
Inocencia's husband was about to offer Bello a cup of coffee when she heard a successive burst of gunfire. Bello, who was the balcony facing the copra kiln ("agonan") with his back towards the pili tree, gradually fell to
the floor with his hands above his head. Then there was another burst of gunfire. From the kitchen, Inocencia rushed to the door from where she saw a man holding a long firearm, whom she later identified as Pinto,
near the pili tree which was around eight meters from where Bello was, and another man, also holding a gun, crouching near the stairs. 51

Inocencia, with her two-year-old child in her arms, 52 was about to rush to Bello when her husband pulled her. Just then a man, whom Inocencia identified as Buenaflor, came up the house, pointed a gun at Inocencia
and her husband and told them to lay flat on the floor. The man asked them where the gun was. Inocencia told him that there was no gun in the house but then, when she looked around, she saw a long firearm with its
muzzle pointed upward leaning against the wall near the door around two meters from where Bello laid flat on his back. Bello himself had a gun but it was in its holster tucked on his waist. 53 It was Buenaflor who took
both the long firearm and the gun in Bello's holster.54
When Francisco Andes went up the house, he told Inocencia that Rosalio was dead. 55 Inocencia went near the pili tree where Rosalio's body was, knelt down and asked the man with a long firearm why he killed
Rosalio. The man answered that Rosalio fought back. However, Inocencia did not notice any weapon near Rosalio's body. 56
Bello's hands and feet were tied together and a bamboo pole was inserted between them so that two men, one of them being Francisco Andes, could carry the cadaver. 57 Bello died because of "shock secondary to
massive hemorrhage due to multiple gunshot wounds". 58 A former pilot and 28 years old at the time of his death, Bello sustained a gunshot wound at the left temple, an inch above the highest point of the pinna of the
left ear. The bullet which entered his head through the squamous temporal bone travelled towards the occipital region down to the floor of the left middle cranial fosa until it reached the base of the tongue.
Bello had three gunshot wounds on his chest. One bullet entered the superior part of the right scapular area about the level of the third thoracic vertebrae. The bullet travelled to the right inna in a slightly upward
direction making its exit at the lateral part of the right supraclavicular fossa above the clavicle. The second gunshot wound was at the left side interscapular area. The bullet travelled upwards and to the right fracturing
the 7th rib, entered the lower lobe of the left lung, punctured the pulmonary conus, went through the junction of the right auricular appendage and the right auricle, the anteromedial side of the pericardium, grazed the
medial surface of the middle lobe of the right lung and exited at the right side of the chest. The third gunshot wound was below the right nipple. The bullet went to the chest cavity, the lower lobe of the right lung, the
dome of the diaphragm, the right lobe of the liver, the 8th thoracic vertebrae and exited at the left of the midline at the inferior interscapular area. 59
While Bellos corpse was being autopsied, a slug fell from his jacket. A bullet jacket and lead fragments were found at the base of his skull and a slug was extracted from the floor of his mouth. 60
Rosalio Andes, 23 years old, also died of shock due to multiple gunshot wounds. A bullet entered his right temporal area, macerated the brain, fractured both parietal bones and exited at the left parietal bone. Another
bullet entered the left scapular area below the level of the 6th rib, travelled to the dome of the left diaphragm, the left lobe of the liver, the pancreas, the small intestines, and the perineum below the ramus of the right
pubis. The slug was found at the gluteoperineal junction about 2 inches below the tip of the coccys and 2 1/2 inches above the gluteal line. A third bullet entered the left knee and exited at the medial side of the leg. 61
The slugs and parts of bullets which were extracted from the bodies of the victims were turned over to the National Bureau of Investigation (NBI) on December 29, 1970 by Fiscal Aquilino Bonto for safekeeping
purposes. 62 The empty shells and slugs which both the PC and the Legazpi City police found in Talahib were also turned over to the NBI 63 in the same manner that the four empty carbine shells 64 found by the PC
near the coconut tree a meter from the shoulder of the road to Mariawa were also turned over to the NBI. 65Also submitted to the NBI for ballistic examination were twelve Smith & Wesson caliber .38 revolvers, two
Smith & Wesson "paltik" caliber .22, four Tell caliber revolvers, one Bosque automatic pistol caliber .380, four carbine Inland rifles caliber .30, three US Springfield rifles caliber.30, one Thompson submachine gun
caliber .45 and one Colt automatic pistol caliber.45. 66
Defendants Pinto and Buenaflor both denied having fired at the jeep bearing the Tiongson family.67 Pinto, who admitted carrying a caliber .30 carbine during the incident, 68 testified that the shooting occurred
because the Tiongsons' jeep "was going towards" them.69
According to Pinto, when they reached Mariawa, it was he who fired one shot in the air. 70 After the search had been conducted in Bello's premises, Team 3 was instrued by a "superior officer" "to remain and maintain
peace and order in (the) vicinity including Mariawa".71 While he and Buenaflor were patrolling the area, at around midnight, they "chanced upon a house" wherein Bello and his group were staying. They captured four
of Bello's bodyguards and tied them to a pili tree with the torn shirt of one of the captives.72
At daybreak, Pinto saw Bello smoking at the porch. Buenaflor, who was behind him, called Bello. Then a single shot coming from the house rang out. It was answered by a burst of fire which Pinto "presumed" came
from Buenaflor. By reflex action, Pinto transferred from the pili tree to a nearby coconut tree. But before he reached the coconut tree, he saw a man with a bolo in his hand running towards him. As the man was
menacingly near him, Pinto shot him. 73

After a lull in the firing, he went up the house to look for Bello's other companions. He saw the body of Bello on the porch and "near" it was a garand which he took. He also got Bello's short firearm "from a holster." He
turned over both the garand and the short firearm to Buenaflor. One of the captured persons kicked Bello's body saying that if not for Bello, his son would not have been killed. Thereafter, the two dead persons were
carried by the captured bodyguards to Mariawa. 74
In Mariawa, Pinto contacted (through the radio) police outpost No. 5 in Banquerohan and two jeeps arrived. When they reached the junction in Homapon, Major Molo, who was with Fiscal Benito Se, told Pinto to go
back with him to Talahib. Although Pinto warned Major Molo that it would be dangerous to go back because one of Bello's men had escaped, they nevertheless proceeded to Talahib. With three other policemen, they
arrived there between eight and nine in the morning where they were instructed to "look for evidence specifically . . . for a thompson." He found in the porch two shells and the others found a hat and a flashlight.
Thereafter, they returned to Mariawa and later, to Legazpi City proper. 75
On cross-examination, Pinto stated that he did not know that they found Bello in an area which was beyond the jurisdiction of Legazpi City. He admitted that while they were instructed patrol the area, they were also
told to effect the arrest of Bello even if no complaint had been lodged against him. 76 According to Pinto, of the fifteen bullets in the magazine of his carbine, only two remained. He fired "most" of the thirteen shots
during the "Bello incident". 77
Pinto shot the man later identified as Rosalio Andes when he was at a distance of around three meters. Rosalio was "face to face" with him when Pinto shot him. As Rosalio did not fall from the first shot, Pinto
continued shooting him. 78 When he went up the porch he saw the garand "lying on the floor" but the gun tucked on Bello's waist was still in its holster. 79
On the Tiongson incident, Pinto asserted that he did not fire his
carbine. 80 When he saw the headlight of the Tiongsons' jeep, he also saw a flashlight being waved. A little later, he heard a shout ordering the jeep to stop. Then he heard one shot and immediately after, the volley of
fire as the jeep was going towards his direction. As it passed by him, he heard the jeep's passengers shriek. 81
For his part, Buenaflor declared that during the mission to serve the search warrant on Bello, he carried the ".38 caliber revolver Tel." (sic) which had been issued to him by the Legazpi City Police Department. He did
not fire his gun at the Tiongsons and, "as a matter of fact," he surrendered his firearm for ballistic examination. 82 In the afternoon of December 26, however, Major Molo issued him a Thompson submachinegun. 83
While patrolling Homapon, he and Pinto "chanced upon" some persons who told them that they could guide them to where Bello was. At the place which they later found to be Talahib, they went near a pili tree from
where they saw a house "below." Then he saw a man who turned out to be Mostoles. Buenaflor apprehended Mostoles because the latter was Bello's bodyguard and he had a .22 caliber firearm with him. He came by
another man with a bolo, named "Banteque" and apprehended him also. Then, from behind the pili tree, Pinto appeared with yet another man. They waited for a while until another man, who turned out to be Francisco
Andes, came within four meters of him. Buenaflor pointed his submachinegun at him so Andes approached him. Buenaflor confiscated Andes' .22 caliber firearm. 84
From the group, Buenaflor learned that Bello provided them with firearms and that Bello himself had a pistol tucked in his holster as well as a garand. He and Pinto then tied the men to the pili tree. Later, he saw a
person in the balcony of the house below and Buenaflor shouted twice: "Paquito, mag-surrender ka!" Then Buenaflor heard a "a shot coming from the direction of the balcony followed by successive shots." He sought
cover behind the pili tree and, while in a crouching position, fired his submachinegun towards the balcony. Pinto was then behind him. As Pinto shifted his position while firing his carbine, Buenaflor went down to the
"elevated portion going down to the nipa shack" until he was near the coconut tree. There he found a person lying with his face down. He later found out that the person was the son of Francisco Andes. 85
After the firing had stopped, Pinto told him that Bello was dead. Pinto then went up the house. Buenaflor went back to the pili tree, untied the four persons they had captured, and told them to do something so they
could carry the bodies of Bello and (Rosalio) Andes. 86
Like Pinto, on cross-examination, Buenaflor also asserted that he did not fire his gun at the jeep carrying the Tiongsons. 87 While admitting that the person who led them to Bello had told them that the latter was in
Talahib, Buenaflor did not know that Talahib was a barrio of Daraga, Albay and not of Legazpi City.88 He reiterated that he shouted at Bello urging him to surrender 89 but he was not able to fire a warning shot or
identify himself as a member of the police force "because after the second shot there was already a burst of gunfire".90

Buenaflor affirmed that the first shot emanating from the balcony of the house in Talalib which was around fifteen meters from the pili tree, came from a "high caliber firearm". 91 After they had found out that Bello
was dead, Pinto went up the house. Later, Pinto gave him Bello's 380 automatic pistol and garand. 92 Although he looked at those firearms, he did not determine whether they had been fired. 93 He noticed, however,
that the magazine of the garand was "intact". 94 Aside from Bello's firearms, Buenaflor and Pinto confiscated two .22 caliber revolvers and two bolos found on Bello's bodyguards. 95
Buenaflor stated that his Thompson submachinegun had two clips with each clip containing 30 bullets. When he gave back the firearm to Major Molo, only four bullets were left of the one clip he had used. 96 He
remembered having squeezed twice the trigger of his Thompson submachinegun or automatic rifle in Talahib.97 His service revolver was still with him then. 98
As a result of this series of events, four separate informations were filed against Pinto and Buenaflor. The information charging Pinto and Buenaflor for the murder of Andes which was filed on July 26, 1971 reads:
That on or about the 27th day of December, 1970, in sitio Ando, Barrio Talahib, Daraga, Albay and within the jurisdiction of this Honorable Court the accused, conspiring and confederating together
and mutually helping one another, without any justifiable cause or motive, with intent to kill, did, then and there, willfully, unlawfully and feloniously, with treachery and evident premeditation,
accused Pat. Narciso Buenaflor, Jr. and Pat. Daniel Pinto, Jr., and by means of a Cal. 45 Thompson Sub-Machine Gun, SN-213436 and a US Carbin Inland, Cal. 30, SN-5099407, owned respectively by
said accused, shoot one Rosalio Andes, inflicting upon him gunshot wounds as described in the attached Autopsy Report marked as Annex "A" and being made an integral part of this Information,
thereby causing upon said Rosalio Andes serious and mortal wounds which led to his instantaneous death.
Contrary to law.
The information charging Pinto and Buenaflor with having murdered Bello contains basically the same allegations as the above and it was filed on the same date. On August 24, 1971 two other informations were filed
against Pinto and Buenaflor: one for the murder of Richard Tiongson and another for the frustrated murder of Maria Theresa Tiongson. On arraignment, Pinto and Buenaflor both pleaded not guilty to all the charges.
After trial, the trial court rendered the aforementioned judgment of conviction. For the killing of Bello and Andes, the trial court appreciated evident premeditation as a qualifying circilmstance and treachery, nighttime
and use of public position as aggravating circumstances. For the incident involving the Tiongson children, it considered the crimes as qualified by treachery and aggravated by the use of public position.
Pinto and Buenaflor instituted the instant appeal praying for exoneration mainly on the basis of their claim that the killings were perpetrated in the course of the performance of their official duties as peace officers in
obedience to the lawful order of their superiors.
In order that the justifying circumstance of fulfillment of a duty under Article 11 of the Revised Penal Code may be successfully invoked, the defense has to prove that these two requisites are present: (a) the offender
acted in the performance of a duty and (b) the injury or offense committed be the necessary consequence of the due performance or lawful exercise of such duty. In the absence of the second requisite, the justification
becomes an incomplete one thereby converting it into a mitigating circumstance under Articles 13 and 69 of the same Code. 99
Admittedly, the appellants and the rest of the police force involved, originally set out to perform a legal duty: the service of a search warrant on Bello. In the process, however, appellants abused their authority resulting
in unauthorized and unlawful moves and consequences. Armed with only a search warrant and the oral order to apprehend Bello, they went beyond the ambit of their mission and deprived Bello and two other persons
of their lives.
While the defense presented proofs that Bello had a string of record in the police blotter for misdeeds ranging from taking the harvest of their hacienda without the permission of his parents to assaulting his stepfather,
and that he was "dangerous while under the influence of liquor", 100 there was no proof that he had been convicted of any offense or that he was a dangerous fugitive from justice which would warrant a "shoot to-kill"
order from police authorities. Proof of bad moral character of the victim only establishes a probability that he committed a crime but it certainly cannot be the reason for annihilating him nor may it prevail over facts
proven showing that the same victim had been cold-bloodedly killed. 101 As such, the suspicion that Bello was maintaining a private army was not a sufficient justification for his being rubbed out without due process
of law.

The police theory that Bello authored the shooting of one Salustiano Botin on Christmas eve is neither a justification for his arrest without a warrant. It should be observed that while the police had obtained a search
warrant for illegal possession of firearms against Bello even on Christmas day which was supposed to be a holiday, no such effort was made in securing warrant of arrest for Bello's alleged frustrated killing of Botin. The
improbability of the defense evidence through the testimony of Botin himself that Bello had shot him in the evening of December 24, 1970 is bolstered by the same testimony showing that while he was shot by Bello in
the presence of the police force who were converging at the junction of Homapon and Mariawa, the same law enforcers were unable to arrest Bello. Besides the fact that no other eyewitness corroborated Botin's
testimony even in the face of his own admission that Bello had no reason to shoot him, no complaint was ever lodged against Bello for the alleged shooting. 102
On the other hand, the prosecution, through eyewitness Rogelio Escober, tried to establish that during said shooting incident the police were looking for Bello at the store of a certain Serrano. 103 Unable to find Bello,
the police, specifically Pinto, mauled Escober while asking him to testify against Bello for allegedly shooting Botin. 104 The police had focused their vehicles' headlights near the bodega of ex-Mayor Los Baos in their
effort to flush out Bello who, unknown to the police, had earlier left the vicinity. It was when the police fired at the said bodega that Botin must have been accidentally shot. 105 This story was uncorroborated but if true,
would show the police's dangerous propensity for using otherwise official operations in an unlawful manner.
A propensity for rash judgment was likewise amply shown at the incident involving the Tiongson children. Since the jeep coming towards them was owned by the Anduizas, the appellants acted obviously in the belief
that Bello was its passenger and posthaste they fired upon it even without any inquiry as to the identity of its passengers. 106Granting that the police indeed fired a warning shot, sound discretion and restraint dictated
that, there being no responding shots from its passengers after the alleged warning shot and considering the condition of the road which was not only muddy but uphill, instead of directing aimless gunburst at the jeep,
the most that they could have done was to render the jeep immobile by shooting its tires. That way, they could have verified the identity of the passengers. As it were, they riddled the jeep with bullets injuring in the
process innocent passengers who were completely unaware of what they were up against.
Appellants' stark denial of firing their guns upon the Tiongson family falls flat in the face of various circumstantial evidence which point to their culpability. There is the unflinching testimony of Sgt. Romero that he saw
"flashes of fire" from the direction of Buenaflor as the jeep bearing the Tiongsons passed by. Said testimony was corroborated by that of Rafael Jacob, the PC member of team 2, that while no one in his team fired his
gun, the "sporadic firing" came from team 3 after the first of fire which occurred while the jeep was "abreast of team 2". 107Even defense witness Mariano Rico, a policeman who led team 1, was "sure" that he heard
gunshots at the moment when "the jeep had just passed team 2". 108
Then there are the four empty .30 caliber carbine shells which were found near the coconut tree where, according to Romero, Pinto was deployed. While he himself carried a carbine, Romero did not fire it and his
testimony was never contradicted. The four empty shells were compared with the test shells which were fired from the US carbine, caliber .30 Inland Division, SN-5099407, which, according to the aforequoted
information charging appellant with having killed Andes, was used by Pinto, they were found to have "significant similar individual characteristics". 109
While it is true that the ballistic report reveals that the lead bullet taken from the body of Richard was fired from a Smith & Wesson type firearm 110 and Buenaflor was proven to be carrying a .38 caliber Tell revolver,
the findings of expert witnesses or, in this case, the ballistic report pointing to another kind of caliber .38 weapon as the source of Richard's wound only serves as a guide for the courts after considering all the facts of
the case.111 The undisputed fact is that Buenaflor was specifically pointed by Romero as the one who fired his firearm as the Anduiza jeep bearing the Tiongsons passed by. Inasmuch as no evidence that Romero would
prevaricate to pin responsibility on Buenaflor was ever presented, there is, therefore, no reason to discredit his testimony. 112
In addition to all these, Buenaflor's motive for wanting to do away with Bello has been established. Such motive provided a circumstantial evidence leading to the inference that indeed he fired his gun. 113 According to
the unrebutted testimony of Rogelio Escober, an overseer of the Napal hacienda and constant companion of Bello, on November 1, 1970, Buenaflor and another policeman named Santos Urbana, Jr. borrowed Bello's
jeep on the pretext that they needed it to transfer Moscoso, the suspect in the Perez killing, to the Albay Police Headquarters. When it was returned, the jeep had bloodstains. Bello and Escober later learned from a PC
officer that the jeep had been used in dumping in Guinobatan the body of Moscoso. Confronted by the PC officer, Bello admitted that the jeep was borrowed by Buenaflor and Urbina and agreed to execute a sworn
statement on the matter. Consequently, the PC authorities notified Mayor Imperial of the solution of the Moscoso killing.
Three days later, Escober and Bello met Urbina who warned Bello, "Kit, if you want to give your statement, just say that I borrowed your jeep for thirty minutes. This is a brotherly advice because something might
happen to you." Bello retorted that he would do what was right and that was to tell the truth. Urbina said that it was up to Bello but he repeated that he was giving Bello a brotherly warning that something might happen
to him 114 (TSN, August 23, 1973, pp. 4-20). These facts were of course denied by Buenaflor. However, as between the positive declaration of a prosecution witness and the negative denial of the accused, the former
deserves more credence. 115

All these pieces of circumstantial evidence point to no other inference than that Pinto and Buenaflor fired their guns in defiance of their superior officer's order only "to find the whereabouts" of Bello 116 and to desist
from using their weapons "without clearance from the Chief of Police". 117 Since there is more than one circumstance and the facts from which the inferences are derived are proven, the combination of all the
circumstances is such as to produce a conviction beyond reasonable doubt. 118
The fact that the victims were different from the ones the appellants intended to injure cannot save them from conviction. Aberratio ictus or mistake in the identity of the victim carries the same gravity as when the
accused zeroes in on his intended victim. The main reason behind this conclusion is the fact that the accused had acted with such a disregard for the life of the victim(s) without checking carefully the latter's identity
as to place himself on the same legal plane as one who kills another willfully, unlawfully and feloniously. 119 Neither may the fact that the accused made a mistake in killing one man instead of another be considered a
mitigating circumstance. 120
It is not even necessary to pinpoint who between Pinto and Buenaflor actually caused the death of Richard or the wounding of Maria Theresa in the presence of proof beyond reasonable doubt that they acted in
conspiracy with each other. 121 Prior agreement between the appellants to lull their intended victim is not essential to prove conspiracy as the same may be inferred from their own acts showing joint purpose and
design. 122 In this case, such unity of purpose and design is shown by the fact that only the two of them fired their guns when the Anduiza jeep with the Tiongsons passed by. This they did in defiance of the order of
their superior not to shoot unless ordered to do so. Conspiracy having been proved, the guilt or culpability is imposable on both appellants in equal degrees. 123
The same conspiracy was evident in the killing of Bello and Andes. The appellants' concerted action was shown by the manner by which they killed the two. In this incident, however, they invoke self-defense as a
justifying circumstance. Evidence at hand, however, do not favor their claim.
Under Article 11 (1) of the Rules of Court, an accused must prove the presence of all the following elements of said exempting circumstance: (a) unlawful aggression, (b) reasonable necessity of the means employed to
prevent or repel it, and (c) lack of sufficient provocation on the part of the person defending himself. 124 The presence of unlawful aggression is a condition sine qua non. There can be no self-defense, complete or
incomplete, unless
the victim has committed an unlawful aggression on the person defending himself. 125
In this case, Buenaflor insists that he fired at Bello because, after calling out to him to surrender, his shout was answered by a gunshot. Pinto corroborates his story but the principal prosecution eyewitness in this
incident, Inocencia Malbas, swears that she heard no such shout to surrender nor a gunshot from Bello's direction before Bello was fired upon by the appellants. Physical evidence as well as the testimonies of Buenaflor
himself and Pinto show that Inocencia, and not the appellants, was telling the truth.
Rafael Seora, the NBI agent who went to Talahib and the road to Mariawa to investigate as well as to take pictures, found no bullet marks at the crime scene which would pertain to a .22 caliber "paltik" firearm which
Bello's men allegedly used. 126 As no other "paltik" firearms were recovered from the crime scene other than the two which Buenaflor confiscated from Mostoles and Francisco Andes, the possibility of said firearms or
one of its kind having been used by Bello's men against the appellant particularly the one who escaped is nil.
Buenaflor claimed that the shot after his call to Bello belonged to a high-powered gun 127 obviously referring to the firearms recovered from Bello himself. According to Buenaflor however, when he found the rifle, its
magazine was "intact" and he did not manipulate the rifle to know how many of its bullets had been used. 128 Moreover, if Bello indeed fired a gun, it must be the firearm in his holster and not the garand which was
found a couple of meters from where Bello had fallen. That Bello did not fire any of his two firearms is buttressed by Pinto's own testimony that Bello was smoking with his back towards them when he was shot at and
that at that moment, he did not see Bello holding a gun. 129 We cannot help, therefore, but conclude that the defense claim that Buenaflor's call to Bello was answered by a gunshot is but a figment of their imagination
designed for their own exoneration.
Appellants' claim of unlawful aggression on the part of Bello or his men would have been clarified had any of Bello's men whom they had captured been presented in court. These men, Leoncio Mostoles, Francisco
Andes, Domingo Bantique and Ananias Andes had executed statements before the Legazpi City police to the effect that they heard Buenaflor's call for Bello to surrender and that Bello fired his gun at the appellants.
However, all four of them later executed statements before the NBI retracting said earlier statements in view of the fact that the police had threatened them to make the statements favorable to the appellants. 130
As regards the unlawful aggression of Rosalio Andes against Pinto, we find that if we are to believe Pinto, we have to stamp full credibility on his statement alone. Even Buenaflor admitted that he did not see Rosalio
Andes attack Pinto. 131 Inocencia swore that she did not see any weapon near the fallen Rosalio. Indeed, if the aggression did occur, Pinto would not have lost time in presenting in court the bolo which Andes

threatened to use on him. But granting that Rosalio had a bolo, Pinto was not justified in inflicting the wounds sustained by Rosalio because a mere threatening attitude of the victim will not constitute unlawful
aggression. 132 Moreover, Pinto's testimony that Rosalio menacingly approached him with a bolo after Buenaflor had released a sunburst directed at the house where Bello was, is contrary to human behavior if not
totally ridiculous. On the contrary, by his own admission, Pinto continued firing until he saw Rosalio fell.
An accused who admits inflicting fatal injury on his victim and invokes self-defense must rely on the strength of his own evidence and not only on the weakness of that of the prosecution for, even if weak, the
prosecution evidence gains more credibility. 133 Unfortunately, in this case, inspire of the fact that the prosecution had only one eyewitness to the killing of Bello and Andes, the appellants had not presented
sufficiently strong evidence to shore up their claim of self-defense.
We agree with the trial court that treachery attended the commission of all four crimes in this case. The killing of Richard Tiongson, Francisco Bello and Rosalio Andes as well as the wounding of Maria Theresa
Tiongson were all so sudden that all of them were left defenseless. This is shown not only by the testimonial evidence on the commission of the crimes but also by the nature and location of the wounds of all the
victims. 134 The presence of treachery qualifies the killings to murder and the wounding of Maria Theresa to frustrated murder. Nighttime, however, may not be appreciated as there is no proof that it was specifically
sought in the commission of the crime and therefore we deem it absorbed by treachery.
Evident premeditation has not been proven beyond reasonable doubt in this case but we find that the appellants indeed took advantage of their public position in perpetrating the crime. Under Article 248 of the
Revised Penal Code, murder is punishable by reclusion temporal in its maximum period to death. There being no mitigating circumstance to temper the penalty and there being only the aggravating circumstance of
taking advantage of their public office under Article 14 (1) of the said Code, the proper penalty is death. 135 However, in view the constitutional abolition of the death penalty, the penalty of reclusion perpetua shall be
imposed on the appellants for each of the three murders they committed.
For the wounding of Maria Theresa, the penalty imposable, applying Article 50 of the Revised Penal Code, isprision mayor maximum to reclusion temporal medium. There being no reason to further lower the penalty
by one degree pursuant to the provision of Article 250, and there being one aggravating circumstance and no mitigating circumstance, the penalty should be within the range of prision mayor maximum to reclusion
temporal medium. Applying the Indeterminate Sentence Law, 136 the proper penalty for the frustrated murder of Maria Theresa is six (6) years of prision correccional maximum as minimum to ten (10) years and one
(1) day of prision mayor maximum as maximum. The indemnity of eight thousand pesos imposed by the lower court should be respected considering that while there is evidence as to the actual amount she spent while
confined at the Sacred Heart Hospital in Legazpi City, there is no proof as to the expenses she incurred after she was transferred to the Camp Crame Hospital in Quezon City.
As in all cases wherein peace officers are accused, this case creates a feeling of frustration in everyone. The crimes committed here ought to have no place in this democratic and civilized society. True it is that a police
officer is sometimes left in a quandary when faced with a situation where a decisive but legal action is needed. But, as this Court said in Calderon vs. People and Court of Appeals (96 Phil. 216, 225 [1954]), "(t)he
judgment and discretion of public officers, in the performance of their duties, must be exercised neither capriciously nor oppressively, but within reasonable limits. In the absence of a clear and legal provision to the
contrary, they must act in conformity with the dictates of a sound discretion, and with the spirit and purpose of the law." Police officers must always bear in mind that although they are dealing with criminal elements
against whom society must be protected, these criminals are also human beings with human rights. In the words of then Justice Moran in theOanis case (Supra):
It is, however, suggested that a notorious criminal "must be taken by storm" without regard to his right to life which he has by such notoriety already forfeited. We may approve of this standard of
official conduct where the criminal offers resistance or does something which places his captors in danger of imminent attack. Otherwise, we cannot see how, as in the present case, the mere fact of
notoriety can make the life of a criminal a mere trifle in the hands of officers of the law. Notoriety rightly supplies a basis for redoubled official alertness an vigilance; it never can justify precipitate
action at the cost of human life. Where, as here, the precipitate action of the appellants has cost an innocent life and there exist no circumstances whatsoever warrant action of such character in the
mind of a reasonably prudent man, condemnationnot condonation should be the rule; otherwise we would offer a premium to crime in the shelter of official actuation.
WHEREFORE, the decision of the lower court is hereby affirmed subject to the modifications that appellants shall solidarily be liable for the amount of Fifty Thousand (P50,000) for each of the three murders they
committed and, for the frustrated murder of Maria Theresa Tiongson, each of them shall suffer the indeterminate penalty of from six (6) years of prision correccional maximum as minimum to ten (10) years and one
(1) day of prision mayormaximum as maximum.
Inasmuch as appellant Daniel Pinto, Jr. had been a police officer for only five months 137 when the crimes were committed, let a copy of this decision be furnished the Office of the President for whatever action may be
proper to temper his penalty. 138

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-1896

February 16, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RAFAEL BALMORES Y CAYA, defendant-appellant.
Felixberto B. Viray for appellant.
Assistant Solicitor General Ruperto Kapunan, Jr. and Solicitor Adolfo Brillantes for appellee.
OZAETA, J.:
Appellant, waiving the right to be assisted by counsel, pleaded guilty to the following information filed against him in the Court of First Instance of Manila:
The undersigned accuses Rafael Balmores y Caya of attempted estafa through falsification of a security, committed as follows:
That on or about the 22nd day of September, 1947, in the City of Manila, Philippines, the said accused did then and there wilfully, unlawfully and feloniously commence the commission of the crime of estafa
through falsification of a security directly by overt acts, to wit; by then and there tearing off at the bottom in a cross-wise direction a portion of a genuine 1/8 unit Philippine Charity Sweepstakes ticket thereby
removing the true and real unidentified number of same and substituting and writing in ink at the bottom on the left side of said ticket the figure or number 074000 thus making the said ticket bear the said
number 074000, which is a prize-winning number in the Philippine Charity Sweepstakes draw last June 29, 1947, and presenting the said ticket so falsified on said date, September 22, 1947, in the Philippine
Charity Sweepstakes Office for the purpose of exchanging the same for the corresponding cash that said number has won, fraudulently pretending in said office that the said 1/8 unit of a Philippine Charity
Sweepstakes ticket is genuine and that he is entitled to the corresponding amount of P359.55 so won by said ticket in the Philippine Charity Sweepstakes draw on said date, June 29, 1947, but the said accused
failed to perform all the acts of execution which would have produce the crime of estafa through falsification of a security as a consequence by reason of some causes other than this spontaneous desistance, to
wit: one Bayani Miller, an employee to whom the said accused presented said ticket in the Philippine Charity Sweepstakes Office discovered that the said ticket as presented by the said accused was falsified and
immediately thereafter he called for a policeman who apprehended and arrested the said accused right then and there.
Contrary to law.
(Sgd.) LORENZO RELOVA
Assistant City Fiscal
and was sentenced by Judge Emilio Pena to suffer not less than 10 years and 1 day of prision mayor and not more than 12 years and 1 day of reclusion temporal, and to pay a fine of P100 and the costs.

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

G.R. No. 152589 & 152758

January 31, 2005

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANTONIO MENDOZA Y BUTONES, accused-appellant.
RESOLUTION
PER CURIAM:
Before Us is the Motion for Reconsideration filed by herein accused-appellant of our Decision dated 24 October 2003 in G.R. No. 152589 and No. 152758.1 In said decision, we modified the ruling of the Regional Trial
Court (RTC), Branch 61, Gumaca, Quezon, in Crim. Case No. 6636-G finding accused-appellant guilty of rape under Articles 266-A and 266-B of the Revised Penal Code and instead, we adjudged him guilty only of
attempted rape. We, however, upheld the ruling of the court a quo with regard to Crim. Case No. 6637-G finding accused-appellant guilty of incestuous rape of a minor under Art. 266-B of the Revised Penal Code as
amended by Republic Act No. 8353 and for this, we sentenced accused-appellant to suffer the ultimate penalty of death.
Anent Crim. Case No. 6636-G, accused-appellant submits that our pronouncement that Under these circumstances, while incestuous rape can be rationally ruled out since there is no evidence of the introduction of the penis of appellant into the aperture or within the pudendum of the vagina of private
complainant, accused-appellant is positive for having an intent to lie with his victim. He is guilty of attempted rape.
...
Appellant's unclothed being which he rubbed against the torso of his daughter whom he had also stripped of clothing, his acts of kissing and touching the victim's breasts while the latter was flat on the bed and rendered
purposely unconscious by appellant, evidently demonstrate the intent of appellant to have carnal knowledge of her against her will.2
fails to support our conclusion that he is guilty of attempted rape.1awphi1.nt He argues that at most, he should only be convicted of acts of lasciviousness, defined and punished under Art. 336 of the Revised Penal
Code, as the above-quoted portion of our decision does not establish his intent to have carnal knowledge with private complainant.
In its Comment dated 15 September 2004, the Office of the Solicitor General (OSG), on behalf of the government, points to the following portion of private complainant's testimony as the basis for establishing accusedappellant's intent to lie with the former, thus:
PROSECUTOR MATA:
Q And how were you raped by your father?
A He removed my clothes, Ma'am.<
Q When he removed your clothes, where was your sister?
A She was outside, Ma'am.

Q And after he removed your clothes, what else did he do?

A He placed himself on top of me, Ma'am.
Q When he placed himself on top of you, was he fully clothed or without clothes?
A None, Ma'am.
Q And after he placed himself on top of you, were both of you naked?
A Yes, Ma'am.
Q And what did he do when he was on top of you?
A He kissed me, Ma'am.
Q Aside from kissing you, what else did he do?
A He touched me, Ma'am.
Q Where were you touched?
A On my breast, Ma'am.
Q Where else? What else did he do aside from touching your breast?
A He threatened me, Ma'am.
Q How were you threatened?
A He told me that if I will tell somebody, he will kill us, Ma'am.
Q After he threatened you and he was on top of you, he touched your breast, what did he do next? You said you were raped. Both of you were naked. He was on top of you. What happened next?
A He boxed me on my stomach, Ma'am.
Q After boxing you on your stomach, what else did he do?

A I do not know already, Ma'am.

Q Why did you not know?
A Because I lost consciousness, Ma'am.
Q You lost consciousness and when you regained consciousness, what did you notice about your body?
A I saw blood, Ma'am.
Q Where did you see blood?
A On my thigh, Ma'am.
Q And where was the blood coming?
A From my vagina, Ma'am.
Q And what did you feel in your vagina?
A It was painful, Ma'am.
Q Was that your first sexual experience?
A Yes, Ma'am.
Q And who caused your vagina to bleed?
A My father, Ma'am.
Q And when you regained consciousness, where was your sister?
A She was at my side, Ma'am.
Q What did she do, if any, when she saw your condition?
A None, Ma'am.

Q How about you? What did you do? I withdraw that question, Your Honor.
Q When you regained consciousness, were you still naked?
A Yes, Ma'am.3
After a thorough review and evaluation of the records of this case, we find no sufficient basis to modify our earlier decision convicting accused-appellant of attempted rape in Crim. Case No. 6636-G.
There is an attempt to commit rape when the offender commences its commission directly by overt acts but does not perform all the acts of execution which should produce the felony by reason of some cause or
accident other than his own spontaneous desistance.4 The elements, therefore, of an attempted felony are the following: (1) the offender commences the commission of the felony directly by overt acts; (2) he does not
perform all the acts of execution which should produce the felony; (3) the offender's act be not stopped by his own spontaneous desistance; and (4) the non-performance of all acts of execution was due to cause or
accident other than his spontaneous desistance.5
Upon the other hand, Article 366 of the Revised Penal Code states: "(a)ny person who shall commit any act of lasciviousness upon the other person of either sex, under any of the circumstances mentioned in the
preceding article, shall be punished by prision correccional." The elements of this crime are: (1) that the offender commits any act of lasciviousness or lewdness; (2) that it is done (a) by using force and intimidation, or
(b) when the offended party is deprived of reason or otherwise unconscious, or (c) when the offended party is under 12 years of age; and (3) that the offended party is another person of either sex.6 As explained by an
eminent author of criminal law, rape and acts of lasciviousness have the same nature. There is, however, a fundamental difference between the two. In rape, there is the intent to lie with a woman whereas this element
is absent in acts of lasciviousness.7
In this case, the series of appalling events which took place on the night of 18 March 1998 inside the humble home of private complainant and of accused-appellant, establish beyond doubt that the latter intended to
ravish his very own flesh and blood. As vividly narrated by private complainant before the trial court, accused-appellant, taking advantage of the cover of darkness and of the absence of his wife, removed her (private
complainant's) clothing and thereafter placed himself on top of her. Accused-appellant, who was similarly naked as private complainant, then proceeded to kiss the latter and he likewise touched her breasts until finally,
he rendered private complainant unconscious by boxing her in the stomach.8 These dastardly acts of accused-appellant constitute "the first or some subsequent step in a direct movement towards the commission of the
offense after the preparations are made."9 Far from being mere obscenity or lewdness, they are indisputably overt acts executed in order to consummate the crime of rape against the person of private complainant.
Indeed, had private complaint given a categorical statement that the penis of accused-appellant had in fact penetrated her vagina or that it had at least touched her labia, we would have definitely affirmed the accusedappellant's conviction for consummated rape in Crim. Case No. 6636-G. Unfortunately, the records are bereft of any indication to this effect thus, we are constrained to find accused-appellant guilty only of attempted
rape as far as Crim. Case No. 6636-G is concerned lest we obliterate the fine distinction between an attempted and consummated rape.
Worthy of note also is the fact that when confronted with the above-mentioned circumstances during his turn at the witness stand, accused-appellant miserably failed to proffer a credible defense on his behalf. All that
accused-appellant managed to do during that time was to deny the accusations hurled against him in the following manner:
Q Mr. Witness, your daughter Maricar, complained that in the night time of March 18, 1998, while her mother was not in the house, and you were sleeping there, you raped her, what can you say about that?
A That is not true.
Q And if it is not true, what is the truth about it[?]
A I was sending my children to school and she always come home late.

Q In what school was she enrolled prior to March 18, 1998?

A At Barangay Malusak, Atimonan, Quezon, sir.
Q Do you know of any reason why your daughter Maricar should file a complaint against you if it is not true that you raped her on March 18, 1998 at night time?
A According to the person who informed me, my daughter was just using me.
Q And who was that person who informed you that your daughter just accused you?
A Erlinda Rivera, sir.
Q From what place is this Erlinda Rivera?
A From Malusak, Atimonan, Quezon.
Q And what did this Erlinda Rivera tell you about that?
A I was informed by Erlinda Rivera that my daughter was always going with several men.
Q In what place did this Erlinda Rivera tell you that your daughter always go with several men?
A In her house when I went there.
Q When was that if you can still remember?
A I could not exactly recall.
Q Was it when you were already incarcerated or was it before you were incarcerated when Erlinda Rivera told you about that fact that your daughter was always going with other men?
A She told me that when I was already incarcerated.
Q In what place, was it in the Provincial Jail or where?
A Here in court.10
It is well-settled that denial is essentially the weakest form of defense and it can never overcome an affirmative testimony particularly when it comes from the mouth of a credible witness.11 Accused-appellant's bare
assertion that private complainant was just "using" him to allow her to freely frolic with other men, particularly with a certain Renato Planas, begs the credulity of this Court. This is especially true in the light of our

consistent pronouncement that "no decent and sensible woman will publicly admit being a rape victim and thus run the risk of public contempt - the dire consequence of a rape charge - unless she is, in fact, a rape
victim."12 More in point is our pronouncement in People v. Canoy,13 to wit:
It is unthinkable for a daughter to accuse her own father, to submit herself for examination of her most intimate parts, put her life to public scrutiny and expose herself, along with her family, to shame, pity
or even ridicule not just for a simple offense but for a crime so serious that could mean the death sentence to the very person to whom she owes her life, had she really not have been aggrieved. Nor do we
believe that the victim would fabricate a story of rape simply because she wanted to exact revenge against her father, appellant herein, for allegedly scolding and maltreating her.14
With regard to Crim. Case No. 6637-G, accused-appellant posits the argument that due to the inconsistencies in the testimony of private complainant, the prosecution failed to establish his guilt beyond reasonable
doubt.
The argument fails to persuade.
This Court will not disturb the findings of facts of trial courts unless there is a showing that it failed to consider facts and circumstances, which if taken into account, would materially affect the resolution of a case. 15 In
the case at bar, the alleged inconsistencies in private complainant's testimonies pertain to the number of times when she was raped by accused-appellant and the date when her mother, Leonida Mendoza, actually came
back from San Narciso, Quezon, to their house at Barangay Lakip, Atimonan, Quezon. In her testimony on 29 March 2001, private complainant claimed that her mother returned to their house on 19 March 1998 - the
day after the first incident of rape. On the other hand, Leonida testified that she stayed in San Narciso for one week.16
Needless to state, these supposed inconsistencies deal with minor matters and should not affect the genuineness of private complainant's version of how her harrowing experience came to be. They do not deal with the
basic aspects of the who, the how, and the when, of the crime committed.17 As we have declared before, "inconsistencies on matters of minor details do not detract from the actual fact of rape." 18 Verily, private
complainant's consistent retelling of the relevant details regarding the violation of her person by her own father far outweighs the latter's persistent assault on her credibility and candor.
In any case, it is a doctrine in criminal law that minor inconsistencies in testimonies strengthen rather than weaken the witness' credibility for they eliminate the impression of a rehearsed testimony. Particularly in rape
cases, this court does not expect a rape victim to recall every minute detail that occurred during her horrible ordeal. As we declared in People v. Abiera,19 "a rape victim cannot push out of her mind the violent attack
upon her chastity but she is nevertheless not expected to remember all the sordid details of that traumatic experience."20
WHEREFORE, the instant motion for reconsideration is DENIED for lack of merit and our decision dated 24 October 2003 is hereby AFFIRMED.
Costs de oficio.
SO ORDERED.
EN BANC

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

THE PEOPLE OF THE PHILIPPINES, appellee, vs. ARMANDO CABALLERO, RICARDO CABALLERO, MARCIANO CABALLERO, JR., and ROBITO CABALLERO, accused.

ARMANDO CABALLERO, RICARDO CABALLERO, and MARCIANO CABALLERO, JR., appellants.

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

The Antecedents
Teresito (Dodong) Mondragon and his family lived in a compound surrounded by a barbed-wire fence at New Sumakwel, Broce Street, San Carlos City, Negros Occidental. Living in the same compound were
Ricardo Caballero and his family; and Myrna Bawin, the sister of Eugene Tayactac, and her family. Beside the compound was the house of Leonilo Broce, a nephew of Wilma Broce.
In the afternoon of August 3, 1994, Armando (Baby), Robito (Bebot) and Marciano, Jr. (Jun), all surnamed Caballero, were having a drinking spree in the house of their brother Ricardo in the Mondragon
Compound. At about 7:00 p.m. of said date, Eugene Tayactac and Arnold Barcuma arrived in the sari-sari store of Wilma Broce which was across the Mondragon Compound. Eugene had dinner in the store while
Arnold proceeded to the house of Susana Broce, Eugenes girlfriend, for a chat. Susanas house was about 15 meters away from the store of Wilma. Momentarily, Armando arrived in the store and asked Eugene in an
angry tone: Gene mopalit ka? (Gene, will you buy?). Eugene replied: What is this all about? We dont have any quarrel between us. Armando left the store but stood by the gate of the barbed-wired fence of the
Mondragon Compound. His brothers Ricardo, Robito and Marciano, Jr. joined him. Ricardo and Robito were armed with knives. When Wilma told Eugene that she was closing the store already, he stood up and left
the store on his way to Susanas house. At that time, Myrna Bawin, who was standing by the window of their house saw her brother Eugene going out of the store and proceeding to the house of Susana. She called out to
him and advised him to go home. Myrna then left the window to pacify her crying baby.
As Eugene walked by the gate of the Mondragon Compound, Armando suddenly grabbed Eugene towards the compound. Eugene resisted. Spontaneously, Ricardo, Marciano, Jr. and Robito joined Armando and
assaulted Eugene. Armando took the wooden pole supporting the clothesline and hit Eugene with it. The latter tried to parry the blows of the Caballero brothers, to no avail. In the process, Eugene was stabbed three
times. As Eugene was being assaulted, Myrna returned to the window of her house and saw the Caballero brothers assaulting Eugene. She shouted for help for her hapless brother. Wilma, who witnessed the whole
incident, was shocked to immobility at the sudden turn of events.
From the nearby house of Susana, Arnold saw the commotion and rushed to the scene to pacify the protagonists. Arnold told the Caballero brothers: Bay, what is the trouble between you and Eugene? However,
Ricardo accosted Arnold and stabbed the latter on the left side of his body. Forthwith, Robito, Marciano, Jr. and Armando ganged up on Arnold. Two of them stabbed Arnold on his forearm. Arnold fled for his life and
hid under the house of a neighbor.
For his part, Leonilo rushed from his house to where the commotion was. He was, however, met by Robito who stabbed him on the chest. Wounded, Leonilo retreated and pleaded to his uncle Lucio Broce for help:
Tio, help me because I am hit. The commotion stopped only upon the arrival of Teresito Mondragon who was able to pacify the Caballero brothers. They all returned to the compound.
In the meantime, Lucio Broce, the uncle of Leonilo brought the injured Eugene, Leonilo and Arnold to the Planters Hospital for medical treatment. Eugene and Leonilo eventually died from the stab wounds they
sustained.
Dr. Filped A. Maisog performed an autopsy on the cadaver of Eugene. He signed a postmortem report containing the following findings:
POST-MORTEM EXAMINATION
Name: Eugenio Tayactac, 22 years old, male, single

Address: New Sumakwel, San Carlos City, Neg. Occ.

Place of Incident: New Sumakwel, San Carlos City, Neg. Occ.
Place of Examination: San Carlos City Hospital
Date & Time of Incident: August 3, 1994 @ 8:30 P.M.
Date & Time Examined: August 3, 1994 @ 10:40 P.M.
Post-Mortem Findings:
= Stab wound (L) anterior chest 2 cm. 5th ICS MCL directed postero laterally, lacerating (L) auricle of the heart, and the (L) pulmonary artery and the left middle lobe of the lungs;
=
=

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

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

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

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

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

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

Incised wound 2 inches (L) forearm middle 3rd

=

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

On the witness stand, Dr. Quisumbing testified that the wounds sustained by Arnold could have been caused by three different sharp-pointed instruments.[6] He further testified that Arnold would have died
because of the stab wound on his chest, were it not for the timely medical intervention.
On August 5, 1994, Armando, Ricardo, Marciano, Jr. and Robito, were charged with Murder for the death of Leonilo Broce. The Information, docketed as Criminal Case No. RTC 1217 reads:
That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San Carlos City, Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring
together and helping one another, armed with pieces of wood and hunting knives, and with intent to kill, with treachery and evident premeditation, did, then and there, wilfully, unlawfully and feloniously, with the use
of said weapons, attack, assault and use personal violence upon the person of one LEONILO BROCE, by striking the latter with the use of pieces of wood and stabbing him, thereby inflicting upon said Leonilo Broce
physical injury described as follows:
= Stabbed wound (R) chest penetrating thoracic cavity.
and which injury caused massive hemorrhage which resulted to the death of Leonilo Broce.
That an aggravating circumstance of abuse of superior strength is attendant in the commission of the offense.
CONTRARY TO LAW.[7]
They were also charged with the same crime for the death of Eugene Tayactac in an Information docketed as Criminal Case No. RTC-1218, which reads:
That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San Carlos City, Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring
together and helping one another, armed with pieces of wood and hunting knives, and with intent to kill, with treachery and evident premeditation, did, then and there, wilfully, unlawfully and feloniously, with the use
of said weapons, attack, assault and use personal violence upon the person of one EUGENE TAYACTAC, by striking the latter with use of pieces of wood and stabbing him thereby inflicting upon said Eugene Tayactac
physical injuries which resulted to the death of the latter.
That an aggravating circumstances of abuse of superior strength is attendant in the commission of the offense.

CONTRARY TO LAW.[8]
Another Information was filed against the Caballero brothers for frustrated murder for the injuries of Arnold Barcuma. Docketed as Criminal Case No. RTC-1219, it reads:
That on or about 8:00 oclock, P.M., August 3, 1994 at New Sumakwel, San Carlos City, Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring
together and helping one another, armed with pieces of wood and hunting knives, with intent to kill, with treachery and evident premeditation, did, then and there, wilfully, unlawfully and feloniously attack, assault and
use personal violence upon the person of one ARNOLD BARCUMA, by striking him with the use of pieces of wood and stabbing him, thereby inflicting upon the latter physical injuries which would have resulted to the
death of said Arnold Barcuma, thus performing all the acts of execution, which would have produced the crime of Murder, as a consequence, but nevertheless did not produce it, by reason of causes independent of the
will of the accused that is, the timely medical assistance rendered to said Arnold Barcuma.
That an aggravating circumstance of abuse of superior strength is attendant in the commission of the offense.[9]
Ricardo, Armando and Marciano, Jr., assisted by counsel, were arraigned on September 15, 1994. They pleaded not guilty to all the charges. Robito Caballero remained at-large.
Ricardo, Armando and Marciano, Jr. invoked the defenses of denial and alibi. They adduced evidence that Ricardo was employed as electrician in the Office of the City Engineer of San Carlos City. Armando was a
motor cab driver. Robito resided in H.C. Rigor Street, San Carlos City while Marciano, Jr. was a resident of Don Juan Subdivision, San Carlos City and was employed with the Victorias Milling Corporation.
On August 3, 1994, at 8:00 a.m., Robito left San Carlos City and went to Bacolod City. Armando went to the house of his brother Ricardo to help in the construction of the latters house and to take care of
Ricardos fighting cocks while he was in his office. Ricardo arrived home at 8:00 p.m. and had dinner with his family and Armando. Momentarily, their sister Mila and their younger brother Marciano, Jr. arrived in the
house of Ricardo. Marciano, Jr. allegedly was mauled by a group of men and sustained an abrasion, a contusion and swelling of the left side of his face. Ricardo and Armando brought their brother Marciano, Jr. to the
hospital for treatment. On August 4, 1994, Marciano, Jr. was treated for:
=

Linear abrasion (L) scapula region;

Contusion (R) lower lip lateral side;

Swelling left face.

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

Ricardo, Armando and Marciano, Jr. denied killing Eugene and assaulting Arnold. They also denied having any altercation with the victims. They also denied stabbing Leonilo. They had no idea why Wilma,
Arnold and Myrna would implicate them for the deaths of Leonilo and Eugene and for the injuries of Arnold.
After due proceedings, the trial court rendered judgment on May 7, 2001 finding all the three accused, now appellants guilty beyond reasonable doubt as principals of the crimes charged, the decretal portion of
which reads:
WHEREFORE, accused Armando Caballero, alias Baby, Ricardo Caballero, alias Ricky and Marciano Caballero, Jr., alias Jun, having been found GUILTY beyond reasonable doubt of the offenses charged them
as principals, are hereby sentenced to suffer:
1. In Criminal Case No. RTC-1217 for the murder of Leonilo Broce, there being no mitigating circumstance present, with the attendant aggravating circumstances of treachery and abuse of superior strength, the
maximum penalty of death and to pay the heirs of Leonilo Broce the sum of P75,000.00 as indemnity;

2. In Criminal Case No. RTC-1218, for the murder of Eugene or Eugenio Tayactac, there being no mitigating circumstance present, with the attendant aggravating circumstances of treachery and abuse of superior
strength, the maximum penalty of death; and to pay the heirs of Eugene Tayactac the sum of P75,000.00 as indemnity; and
3. In Criminal Case No. RTC-1219, for Frustrated Murder, for having seriously inflicted injuries upon the person of Arnold Barcuma which nearly resulted to his death, there being no mitigating circumstance present,
an imprisonment of twelve (12) years, as minimum, to seventeen (17) years, four (4) months and one (1) day, with no award as to damages, no evidence having been introduced to establish, the same; and
4. To pay the costs in all three (3) cases.
SO ORDERED.[11]
In convicting the accused, the trial court found that all of them conspired to kill Eugene and Leonilo and cause injuries to Arnold. While the trial court stated that it was only appellant Armando who stabbed
Eugene, and only the accused Robito who stabbed Leonilo, however, it concluded that all of them were equally liable for the deaths of Leonilo and Eugene and for the injuries of Arnold.
In their Brief, the accused, now appellants assail the decision of the trial court contending that:
I
THE TRIAL COURT ERRED IN NOT ACQUITTING ACCUSED-APPELLANTS IN CRIMINAL CASES NOS. 1217-1219 DESPITE THE FACT THAT THEIR GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.
II
THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE AGGRAVATING CIRCUMSTANCES OF TREACHERY AND ABUSE OF SUPERIOR STRENGTH ON THE ASSUMPTION THAT INDEED ACCUSEDAPPELLANTS KILLED THE VICTIMS.
III
THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH PENALTY UPON ACCUSED-APPELLANTS ON THE ASSUMPTION THAT INDEED THEY KILLED THE VICTIMS.[12]
The Court will delve into and resolve the first two assignments of errors.
The appellants aver that the prosecution failed to prove beyond reasonable doubt their respective guilt for the deaths of Eugene and Leonilo and for the injuries sustained by Arnold. They assert that the trial court
committed reversible error in rejecting their defenses of denial and alibi. They claim that at the time of the incident they were in the San Carlos Hospital for the treatment of the injuries of appellant Marciano, Jr.
The appellants are partly correct.
The trial court correctly found that all the appellants conspired to kill Eugene and assault Arnold; hence, they are criminally liable for the death of Eugene and for the injuries sustained by Arnold. Article 8 of the
Revised Penal Code provides that there is conspiracy when two or more persons agree to commit a felony and decide to commit it. Conspiracy is always predominantly mental in composition because it consists
primarily of a meeting of minds and intent.[13] Conspiracy must be proved with the same quantum of evidence as the crime itself, that is, by proof beyond reasonable doubt. [14] However, direct proof is not
required. Conspiracy may be proved by circumstantial evidence. Conspiracy may be proved through the collective acts of the accused, before, during and after the commission of a felony, all the accused aiming at the
same object, one performing one part and another performing another for the attainment of the same objective, their acts though apparently independent were in fact concerted and cooperative, indicating closeness of
personal association, concerted action and concurrence of sentiments.[15] The overt act or acts of the accused may consist of active participation in the actual commission of the crime itself or may consist of moral
assistance to his co-conspirators by moving them to execute or implement the criminal plan.[16] Direct proof of a person in agreement to commit a crime is not necessary. It is enough that at the time of the commission

of a crime, all the malefactors had the same purpose and were united in their execution.[17] Once established, all the conspirators are criminally liable as co-principals regardless of the degree of participation of each of
them for in contemplation of the law, the act of one is the act of all.[18]
Criminal conspiracy must always be founded on facts, not on mere inferences, conjectures and presumptions. [19] Mere knowledge, acquiescence to or approval of the act without cooperation or agreement to
cooperate, is not enough to constitute one party to a conspiracy absent the intentional participation in the act with a view to the furtherance of the common objective and purpose.[20] Moreover, one is not criminally
liable for his act done outside the contemplation of the conspirators. Co-conspirators are criminally liable only for acts done pursuant to the conspiring on how and what are the necessary and logic consequence of the
intended crime.[21]
In this case, when appellant Armando asked Eugene at the store of Wilma whether the latter was going to buy something from the store, Eugene was peeved and remonstrated that he and Armando had no quarrel
between them. Appellant Armando was likewise irked at the reaction of Eugene because from the store, appellant Armando stationed himself by the gate of the Mondragon Compound near the sari-sari store of
Wilma. Appellants Ricardo, Marciano, Jr. and Robito joined their brother, appellant Armando at the gate. Appellant Ricardo and accused Robito were armed with knives. When Eugene passed by the gate to the
compound, appellant Armando pulled Eugene to the gate but when the latter resisted, all the appellants ganged up on Eugene. Appellant Armando took the wooden support of the clothesline and hit Eugene with
it. Eugene was stabbed three times on his chest even as he tried to parry the thrusts. When Arnold rushed to the situs criminis to pacify the appellants and accused Robito, appellant Ricardo stabbed him on the left
side of his body. The other appellants and accused Robito joined appellant Ricardo and ganged up on Arnold. They stabbed Arnold anew twice on his forearm. Teresito Mondragon, the father-in-law of appellant
Ricardo intervened and forthwith, all the appellants, including accused Robito returned to the Mondragon Compound. Patently, all the appellants by their simultaneous collective acts before and after the commission of
the crimes were united in one common objective, to kill Eugene, and cause injuries to Arnold for trying to intervene and prevent bloodshed. Hence, all the appellants are criminally liable for the death of Eugene and for
the injuries of Arnold. It does not matter who among the appellants stabbed Eugene or inflicted injuries on Arnold. The act of one is the act of the others.
However, for the death of Leonilo, the Court believes that the appellants are not criminally liable. The prosecution failed to adduce evidence that the appellants and the accused Robito conspired to kill
Leonilo. The appellants did not actually see Leonilo rushing out from his house to the situs criminis. They had no foreknowledge that the accused Robito would stab Leonilo. There was no evidence presented by the
prosecution to prove that all the appellants assisted the accused Robito in killing Leonilo. It must be recalled that Leonilo rushed out of his house when he saw the commotion, with the intention of aiding the victim or
pacifying the protagonists. He was, however, stopped by accused Robito who suddenly stabbed him on the chest. Leonilo retreated and asked for help. Wilma Broce testified that only the accused Robito stabbed
Leonilo:
Q After that, what happened next?
A

Leonilo Broce came out of his house.

Q Where is the house of Leonilo Broce?

A

Still located at Sumakwel.

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

Yes.

Q What happened after that?

A

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

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

A

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

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

Not (sic).

Q Now what happened to Eugene Tayaktak?

A

He appeared very weak and he was staggering.

Q Do you know where Eugene Tayaktak now?

A

Already dead.

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

A

The two of them were (sic) already dead.

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

A

It stopped when Dodong Mondragon arrived.

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

A

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

Q What happened next?

A

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

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

Crimes Committed by Appellants

In Criminal Case No. RTC-1218, the appellants are guilty as co-principals by direct participation of murder, qualified by treachery. In order that treachery may be considered as a qualifying circumstance, the
prosecution is burdened to prove that:
.... (1) the employment of means of execution that give the person attacked no opportunity to defend himself or to retaliate; and (2) the means of execution was deliberately or consciously adopted.[24]

Even a frontal attack is treacherous if it is sudden and the victim is unarmed. The essence of treachery is a swift and unexpected attack on the unarmed victim.[25]
In this case, Eugene was unarmed. He had no inkling that he would be waylaid as he sauntered on his way to his girlfriend Susanas house. On the other hand, appellant Armando was armed with a wooden pole
while appellant Ricardo and accused Robito were armed with knives. The attack on the hapless Eugene was swift and unannounced. Undeniably, the appellants killed Eugene with treachery.
In Criminal Case No. RTC-1219, the appellants are guilty of frustrated murder under Article 248 in relation to Article 6, first paragraph of the Revised Penal Code which reads:
A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is frustrated when the offender performs all the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.
The essential elements of a frustrated felony are as follows:
Elements:
1.

The offender performs all the acts of execution;

2.

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

3.

But the felony is not produced;

4.

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

In the leading case of United States v. Eduave,[27] Justice Moreland, speaking for the Court, distinguished an attempted from frustrated felony. He said that to be an attempted crime the purpose of the offender
must be thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has performed all the acts which should produce the crime as a consequence, which act it is his
intention to perform.
The subjective phase in the commission of a crime is that portion of the acts constituting the crime included between the act which begins the commission of the crime and the last act performed by the offender
which, with prior acts, should result in the consummated crime. Thereafter, the phase is objective.
In case of an attempted crime, the offender never passes the subjective phase in the commission of the crime. The offender does not arrive at the point of performing all of the acts of execution which should
produce the crime. He is stopped short of that point by some cause apart from his voluntary desistance.
On the other hand, a crime is frustrated when the offender has performed all the acts of execution which should result in the consummation of the crime. The offender has passed the subjective phase in the
commission of the crime. Subjectively, the crime is complete. Nothing interrupted the offender while passing through the subjective phase. He did all that is necessary to consummate the crime. However, the crime is
not consummated by reason of the intervention of causes independent of the will of the offender. In homicide cases, the offender is said to have performed all the acts of execution if the wound inflicted on the victim is
mortal and could cause the death of the victim barring medical intervention or attendance.[28]
If one inflicts physical injuries on another but the latter survives, the crime committed is either consummated physical injuries, if the offender had no intention to kill the victim or frustrated or attempted
homicide or frustrated murder or attempted murder if the offender intends to kill the victim. Intent to kill may be proved by evidence of: (a) motive; (b) the nature or number of weapons used in the commission of the
crime; (c) the nature and number of wounds inflicted on the victim; (d) the manner the crime was committed; and (e) words uttered by the offender at the time the injuries are inflicted by him on the victim.
In this case, appellant Armando was armed with a wooden pole. Appellant Ricardo and accused Robito used knives. Dr. Quisumbing, who attended to and operated on Arnold, testified that the stab wound
sustained by Arnold on the left side of his body was mortal and could have caused his death were it not for the timely and effective medical intervention:
Q And how about the size and the depth of the wounds and how big is each wound and how deep.
A

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

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

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

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

Yes, Sir.[29]

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

Penalties Imposable on Appellants

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

Civil Liabilities of Appellants

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

The Verdict of the Court

IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of San Carlos City (Negros Occidental), Branch 57, in Criminal Cases Nos. RTC-1217 up to RTC-1219 is AFFIRMED with the
following MODIFICATIONS:
1. In Criminal Case No. RTC-1217, the Court, finding the appellants not guilty of the crime charged for failure of the prosecution to prove their guilt beyond reasonable doubt, REVERSES the judgment of the
trial court and ACQUITS them of the said charge.
2. In Criminal Case No. RTC-1218, the appellants are found guilty beyond reasonable doubt of murder under Article 248 of the Revised Penal Code, qualified by treachery, and are sentenced to suffer the
penalty of reclusion perpetua and ordered to pay in solidum the heirs of the victim Eugene Tayactac, the amounts of P50,000 as civil indemnity and P50,000 as moral damages.
3. In Criminal Case No. RTC-1219, the appellants are found guilty beyond reasonable doubt of frustrated murder under Article 248 in relation to Article 6, first paragraph of the Revised Penal Code and are
hereby sentenced to suffer an indeterminate penalty of from nine (9) years and four (4) months of prision mayor in its medium period, as minimum, to seventeen (17) years and four (4) months
of reclusion temporal in its medium period, as maximum. The appellants are hereby ordered to pay in solidum to the victim Arnold Barcuma the amount of P25,000 as moral damages and P10,000 as
temperate or moderate damages.
Costs de oficio.
SO ORDERED.
FIRST DIVISION

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

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ERNESTO ENRIQUEZ y ROSALES and WILFREDO ROSALES y YUCOT, accused-appellants.
DECISION
VITUG, J.:

Ernesto Enriquez y Rosales and Wilfredo Rosales y Yucot were charged with having violated Section 4, Article II, of Republic Act ("R.A.") No. 6425 (Dangerous Drugs Act of 1972), as amended, in an information
that read:
That on or about June 5, 1990, in the City of Manila, Philippines, the said accused, conspiring and confederating together and mutually helping each other, not being authorized by law to sell, deliver, give away to
another or distribute any prohibited drug, did then and there wilfully and unlawfully sell or offer for sale six (6) kgrms of dried flowering tops of marijuana stuffed in a plastic sack, which is a prohibited drug.
"Contrary to law.[1]
The antecedent facts leading to the filing of the information, according to the prosecution, are hereunder narrated.
At around eleven oclock in the morning of 05 June 1990, Sgt. Pedro I. Cerrillo, Jr., the Officer-in-Charge of the Intelligence and Drug Law Enforcement Unit of Police Station No. 2 (located in Tondo, Manila) of
the Western Police District, was in the vicinity of North Harbor routinely scouting for information from his civilian informants. Near the gate fronting Pier 10, Danny, a porter and member of the Anti-Drug Abuse
Movement ("ADAM"), approached and informed Sgt. Cerrillo that a free-lance porter at the North Harbor, a.k.a. Bulag, was looking for prospective buyers of marijuana. Sgt. Cerrillo instructed Danny to say that he
had come across a couple who would be interested in buying the prohibited drug. Sgt. Cerrillo had then in mind a possible buy-bust operation.
The buy-bust plan was broached to Patrolwoman Shirley Maramot who was manning Police Station No. 2. Fellow police officers were at the time on duty at the U.S. Embassy where a "rally" by certain activists was
in progress. Using his own owner-type jeep, Sgt. Cerrillo repaired to his house at 727 Moriones St., Tondo, Manila, to procure ten (10) pieces of one hundred peso bills[2]to be used in the projected buy-bust
operation.[3] He thereupon had, at a store near the police station, xerox copies made of the bills that can readily show the serial numbers which he had also noted down in his personal notebook.[4]
Back at the police station, Sgt. Cerrillo handed the buy-bust money to Pat. Maramot. Since there were no other "operatives" at the station available for the operation, Sgt. Cerrillo sought the assistance of ADAM
members Joseph Mendoza, Amado Betita and Alex Trinidad. The team, including "Danny," were briefed by Sgt. Cerrillo. The plan called for Pat. Maramot and Mendoza to pose as the couple interested in buying
marijuana and for Trinidad, Betita and Sgt. Cerrillo to act as the "back-up" men. Pat. Maramot was to nod her head as soon as the sale was consummated.[5]
At about 11:35 a.m., the group, using two vehicles, proceeded to the vicinity of Pier 10 at the North Harbor. At the corner of Moriones Street and Radial Road 10, Pat. Maramot and Mendoza sat on a bench by a
store to wait for the return of Danny, who had meanwhile left to fetch Bulag, while Sgt. Cerrillo, Trinidad and Betita strategically positioned themselves at a billiard hall, mingling with spectators and pretending to
be bystanders. The billiard hall was only about ten meters away from Pat. Maramots group, and it afforded a good view of the place.[6]
Moments later, Danny arrived with accused Wilfredo Rosales, a.k.a. Bulag. Rosales talked with the poseur-buyers. After about five minutes, the poseur-buyers, Rosales and the informant entered an alley,
walking along shanties, until they reached a house numbered 1349.
A half-naked man in green shorts emerged from one of the doors of the house. The man, later identified to be accused Ernesto Enriquez, a.k.a. Nene, asked Pat. Maramot in Visayan accent, Dala mo ba ang
pera? Pat. Maramot took out from her pocket the bundle of the marked money and showed it to Enriquez. The latter allowed Maramots group to enter the house.[7]Minutes later, as so pre-arranged, Sgt. Cerrillo
followed and proceeded to house No. 1349. Finding the door closed, he went around the house. Sgt. Cerrillo saw Pat. Maramot, Mendoza and the informant exit through the back door. Rosales, carrying a plastic bag,
was with them. Again, Sgt. Cerrillos group followed Pat. Maramot and Rosales until the latter reached a nearby waiting shed for jeepney passengers. At this point, Pat. Maramot announced that she was a
policewoman. Sgt. Cerrillo held Rosales and took his bag. Sgt. Cerrillo opened the sack, and inside it was another sack containing marijuana wrapped in plastic.
The group hurriedly returned to house No. 1349 only to find that Enriquez had by then left the premises. The team boarded the police service jeep and moved on to Kagitingan Street at the Lakandula detachment.
Sgt. Cerrillo interviewed Rosales. Upon being informed that Enriquez would usually visit the Pier 10 area, Sgt. Cerrillo proceeded to the place. After scouring the area, a security guard supervisor at the pier, who
accompanied the group, spotted Enriquez walking near the pier. Sgt. Cerrillo picked up Enriquez and brought him to the Lakandula detachment for investigation. Later, Minda, the wife of Enriquez, arrived.
Someone, at the request of Enriquez, had fetched her to "bring the money." Enriquez told her to return the amount to Sgt. Cerrillo. She took out from her wallet its contents three of which were the 100-peso marked
bills.[8] Minda became hysterical. She embraced Sgt. Cerrillo and begged him to forgive her husband. Sgt. Cerrillo told her to instead see the station commander.[9]
Sgt. Cerrillo apprised Enriquez and Rosales of their constitutional rights. Sgt. Cerrillo advised Enriquez, in front of the latters wife, that he should look for a lawyer so that his statement could be taken. Sgt.
Cerrillo prepared the request for the examination of the evidence taken from the accused and the affidavit [10] of the latter's arrest.[11]
On the evening of 05 June 1990, Minda and other relatives of Enriquez approached Sgt. Cerrillo for the possibility of "settling" the case. During the trial, another relative, a senior supervising agent of the
Napolcom, also approached and requested Sgt. Cerrillo to help out.[12]

Patrolwoman Shirley Maramot, 37 years old, assigned at Police Station No. 2, corroborated Sgt. Cerrillo. She testified that she was requested by Sgt. Cerrillo to be the poseur-buyer in the buy-bust operation
conducted in the morning of 05 June 1990 along Alinian Street, Tondo, Manila. After Sgt. Cerrillo had conducted a briefing and provided her with the buy-bust money, Pat. Maramot went with Mendoza, who portrayed
the role of her husband, and the informer to Radial 10 at Pier 14. When Wilfredo Rosales turned up, he asked if she had cash with her. After being shown the money, Rosales led her to a house numbered 1349. The
poseur-buyers were made to wait momentarily while Rosales talked to Ernesto Enriquez. Rosales later signaled Pat. Maramot, who was around four (4) meters away, to again show her money. Forthwith, Pat. Maramot
was led to the house of Enriquez. Once inside a small room, Enriquez locked the door. Enriquez asked Pat. Maramot how much money she had. She replied that she only had P1,000.00 since she was not sure that she
could get as much as the one-half sack of the contraband shown to her. Pat. Maramot was told she could get the lot for P4,500.00. She said she was willing to get the lot if she could be trusted with the balance of the
price. Enriquez agreed. Pat. Maramot handed over the P1,000.00 to Enriquez. The latter was about to hand over the marijuana when he decided to, instead, have Rosales personally deliver the marijuana.
Pat. Maramot followed Rosales until Maramot finally introduced herself as a policewoman. Rosales posthaste attempted to board a passing passenger jeep but Pat. Maramot and Sgt. Cerrillo, who had rushed in,
were able to timely get hold of Rosales.[13]
NBI Forensic Chemist George J. de Lara issued, on 06 June 1990, a certification to the effect that the specimen submitted to him was positive for marijuana. [14] Sgt. Cerrillo prepared a case report[15] and the
respective booking sheet and arrest report.[16] The official report of the NBI forensic chemist, dated 07 June 1990, disclosed the following findings:
Weight of specimen = 6.00 kilograms (before examination)
5.999 kilograms (after examination)
Microscopic, chemical and chromatographic examinations made on the above-mentioned specimen gave POSITIVE RESULTS for MARIHUANA.[17]
On the same day, Station Commander Benjamin de Jesus endorsed the case against Enriquez and Rosales to the City Prosecutor for further proceedings. The inquest fiscal recommended [18]that the two accused be
charged with violation of Section 4, Article II, Republic Act No. 6425, as amended.
The defense gave a different version of the incident.
Accused Rosales testified that he had come from Bohol to Manila in April of 1990 and stayed with accused Enriquez, his cousin, while working as an extra porter of William Lines. At around 11:30 in the morning of
05 June 1990, he was on his way home from work when a male person whom he recognized only by face sought his assistance in carrying a sack to a place where jeepney commuters would take their ride. The sack was
colored white and emitted the smell of dried fish. He was promised P20 in exchange for his help. At a junction, a security guard whom he later identified to be Homer Ciesta, blocked and pushed him inside a vehicle
where he was promptly handcuffed. During the commotion, the owner of the sack disappeared.[19] Rosales was brought to a house near the slum area in Parola where P20,000 was quoted for his release by Sgt.
Cerrillo.[20] When Rosales did not heed the demand, he was brought first to the Lakandula detachment and then to Station No. 2 of the Western Police District.
On his part, Enriquez, a resident of 1349-C Alinian Street, Tondo, Manila, claimed that he was in the business of purchase and sale of oil at the North Harbor, under the business name of Nie-Men R. Enriquez
Enterprises,[21] being the grantee of a permit to operate an oil sludge collection service.[22] He was under contract by the Lorenzo Shipping Corporation from January 1983 to April 1984. He was also the Vice-President
of the Kapisanan ng Maralitang Naninirahan ng Tondo, Inc. a civic organization and a recipient of a certification of merit from the National Steel Corporation.[23]
Recounting his whereabouts in the morning of 05 June 1990, Enriquez said he left his house at around 11:45 a.m. for Pier 10 of the North Harbor, barely a thirty-minute walk away from his residence, to meet his
brother, Victor Enriquez, at the pier. He had with him P2,000 in P100 denominations stacked in his wallet. Robinson Lumbis, a neighbor who was road testing his cab along North Harbor, saw and greeted
Enriquez.[24] Betty Quimbo, another neighbor, later saw Enriquez with his brother.[25] Appellant took his lunch at home and thereafter hurriedly returned to the pier. He was not able to spend the night in his house. The
following day, 06 June 1990, at around two oclock in the afternoon, Enriquez went to the maintenance section of the Lorenzo Shipping Lines to pay for the oil he had obtained from its vessels. Homer Ciesta, the officerin-charge of the security guards of the shipping line, invited Enriquez, and the latter agreed, to join him (Ciesta) earn some "extra money." The two left for the squatters area in Parola and, once there, Ciesta told
Enriquez to approach a certain person, later identified to be Sgt. Cerrillo, who instantly handcuffed him. Sgt. Cerrillo demanded P20,000 in exchange for his freedom. When he refused to give in to the demand,
Enriquez was brought to the Lakandula detachment where the P2,000 he had in his wallet was taken and presented in evidence as the amount used in the buy-bust operation. He was brought to Station No. 2 of the
WPD for investigation.[26] Homer Ciesta went to tell Arminda, the wife of Enriquez, to bring some money to the Lakandula police detachment. Arriving at the detachment, someone approached Arminda and asked her
whether she had the money. She replied in the affirmative. The person then grabbed her wallet, took its contents and later returned the empty wallet.[27]

On 24 January 1991, the trial court, giving credence to the evidence submitted by the prosecution, found both accused guilty beyond reasonable doubt of the crime charged and sentenced each of them to life
imprisonment and to pay a fine of P30,000.
In their appeal to this Court, Rosales and Enriquez have filed separate briefs.
Appellant Enriquez insists on his innocence and faults the trial court for giving too much credence to the testimony of Sgt. Cerrillo and Pat. Maramot who, Enriquez asserts, have merely framed them up for selfish
motives. He theorizes that it would seem incredible for either Pat. Maramot or Sgt. Cerrillo to have left and abandoned Station No. 2 considering that the Station Commander and his men have all been posted in the
then on-going rally at the U.S. Embassy. He downgrades the prosecutions asseveration that Pat. Maramot, being unarmed, could not effect his immediate arrest, and that Sgt. Cerrillo has so used his personal funds as
marked money. Enriquez also questions the six-day delay in the filing of the information.
The Court is scarcely impressed.
Simply said, appellant Enriquez would assail the credibility of the two prosecution witnesses. Almost always, the evaluation made by the trial court on the credibility of witnesses is viewed with respect. The trial
judge, who has the distinct advantage of being able to observe closely the demeanor and deportment of witnesses on the stand as well as the manner in which they testify, undoubtedly can better determine than anyone
else if such witnesses are telling or are not telling the truth. He is in an ideal position to weigh conflicting testimonies and unless, as so repeatedly said, he has obviously discarded or missed certain facts of substance
and significance that, otherwise, would have altered his judgment, an assessment on credibility made by him should indeed deserve approbation by an appellate court.[28]
The Court, in the case at bench, has scrutinized the records, and it finds no justification for holding differently from the findings made by the trial court.
In drug related cases, particularly in a buy-bust operation, the contention that the accused has merely been framed up by law enforcement personnel for selfish motives is quite often raised by the defense. For this
claim to prosper, the evidence adduced must be clear and convincing[29] in order to overcome the presumption that government officials have performed their duties in a regular and proper manner. [30] Appellant,
regrettably, has miserably failed to substantiate his allegations in this respect.
Enriquez questions the six-day delay in the filing of the information against him which he attributes to an extortion attempt made on him. Like an alleged frame-up, a supposed extortion by police officers has, too,
been a standard defense in drug cases. Appellants failure to offer evidence, independently of his bare claim of extortion, suggests that this defense could either be a fabrication or an afterthought. If, truly, the arresting
police officers have tried to extort money from him, it should have behooved Enriquez to come forward with the proper charges against the erring police officers.[31] No criminal or administrative charges appear to have
been filed by him. It is equally strange that the supposed extortions neither appeared in appellant's counter-affidavit[32] nor in his affidavit[33] both prepared by his counsel of choice. In any event, the Court does not see
any real undue delay on the part of the police. The station commander filed the case with the prosecutor on 07 June 1990, the same day that the NBI forensic chemists official report was released. The transmittal
letter,[34] of the station commander, bears the recommendation, likewise dated 07 June 1990, of the inquest fiscal finding a violation of Section 4, Article II, of R.A. No. 6425.
Appellant Enriquez surmised that it was strange for Sgt. Cerrillo and Pat. Maramot to have left the police station unmanned just to conduct a buy-bust operation. Sgt. Cerrillo explained that, being the Intelligence
Officer in Station No. 2, he would spend most of his duty hours in the field.[35] He chose Pat. Maramot to be the poseur-buyer because she was not well known in the place of operation. While she had a desk job she
could also be assigned elsewhere when the situation would demand. Furthermore, the buy-bust operation was conducted in an area not far from the police station (testified to be at an approximate distance of between
the Manila City Hall and the Luneta Park[36]).
On cross-examination, Pat. Maramot explained why she could not arrest Enriquez when he received the money. She testified:
ATTY. ESMERO:
"During the time that you were in that room together with Enriquez and you said that Enriquez took up a half sack of marijuana under the table, did it not occur to your mind to arrest him
immediately during that time and introduced yourself as a policewoman together with your husband?
"WITNESS:
"If you will place yourself in my situation, I am so small to arrest a person and I am not so big so I have to wait for my companions, sir.
"INTERPRETER:
"Witness pointed to the Accused.

"ATTY. ESMERO:
"How about your supposed husband?
"WITNESS:
"Besides we did not bring anything even a gun because they are outside, sir.
"ATTY. ESMERO:
"You could have immediately went (sic) out of the door and after that contacted Cerrillo. You could have told him immediately because he was about seven (7) meters from that room?
"WITNESS:
"The door was locked, sir.
"ATTY. ESMERO:
"You could have knocked at the door if you want to call him?
"WITNESS:
"It could not be heard because in that alley there were adjacent rooms, sir, `kuwarto-kuwarto.'
"ATTY. ESMERO:
"Now, you said that you went out through the back door. Who was together with you when you went out at the back door?
"WITNESS:
"Joseph, the one who pretended to be my husband, sir.
"ATTY. ESMERO:
"How about Rosales?
"WITNESS:
"He passed through the front door together with the informant, sir.
"ATTY. ESMERO:
"And the front door was where Pat. Cerrillo was positioned?
"WITNESS:
"No, sir. Cerillo was positioned at the side. He could not meet them immediately because when you go out at that door, it is already a street.[37]
The use of Sgt. Cerrillos own money in the buy-bust operation could be expected. Police Station No. 2 was not logistically funded.[38] In the buy-bust operation, only three 100-peso bills of the marked money
were recovered which, unfortunately, were lost to thieves when Sgt. Cerrillo had momentarily parked his jeep within the vicinity of the police station on 11 July 1990. [39] He reported this loss along with the loss of an
ammunition belt pack with six (6) live cal. .38 bullets and his Parker ballpen.[40] At any rate, the non-presentation of the buy-bust money could not adversely affect the case against appellants.[41]

Alibi is definitely a weak defense although it may occasionally prove to be a good plea. In order to be effective, however, this defense requires proof that it would be physically impossible for the accused to be at
the locus criminis at the time of the commission of the crime. Where there is even the least chance for the accused to be present at the crime scene, the alibi seldom will hold water.[42] Most significantly, the defense
of alibi crumbles in the face of a positive identification of the malefactor.[43]
In his case, appellant Rosales argues that to sustain a conviction for the crime of selling marijuana, the sale must be clearly established which, he asserts, the prosecution has failed to do.
The Court cannot sustain the argument.
Under Section 4, Article II, of R.A. No. 6425,[44] as amended, the law penalizes not only the sale but also the delivery of prohibited drugs.
Section 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. The penalty of life imprisonment to death and a fine ranging from twenty thousand to thirty thousand pesos shall be
imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such
transactions. If the victim of the offense is a minor, or should a prohibited drug involved in any offense under this Section be the proximate cause of the death of a victim thereof, the maximum penalty herein provided
shall be imposed. (Italics supplied.)
Selling is only one of the acts covered by the statutory provision. The law defines the word deliver as a persons act of knowingly passing a dangerous drug to another personally or otherwise, and by any manner
with or without consideration. Delivery, although not incidental to a sale, is a punishable act by itself; while sale may involve money or any other material consideration, [45] delivery may be with or without
consideration.
Appellant Rosales contends that while criminal intent need not generally be proved in crimes that are mala prohibita, knowledge that the sack in his possession contained a prohibited drug must nevertheless be
established. Indeed, Section 2(f) of the Dangerous Drugs Law requires that a person who delivers a prohibited drug must knowingly pass such contraband to another person. Thus, in one case, the Court has said:
x x x. While it is true that the non-revelation of the identity of an informer is a standard practice in drug cases, such is inapplicable in the case at bar as the circumstances are different. The would-be buyers testimony
was absolutely necessary because it could have helped the trial court in determining whether or not the accused-appellant had knowledge that the bag contained marijuana, such knowledge being an essential ingredient
of the offense for which he was convicted. The testimony of the poseur-buyer (not as an informer but as a `buyer) as to the alleged agreement to sell therefore became indispensable to arrive at a just and proper
disposition of this case.[46]
In this case, the trouble appears to be that appellant Rosales incorrectly assumes to be, or gives an impression of being, unaware of the prohibited drug involved in the questioned transaction with appellant Enriquez; in
point of fact, however, it is sufficiently shown that Rosales has known all along that the deal between Enriquez and the poseur-buyers had only to do with marijuana.
Appellant Rosales believes that his act of carrying the sack of marijuana is a mere attempt to deliver the prohibited drug. In other words, the sack being still within his control, he could, he states, have easily
refused to deliver the item to the poseur-buyer. Here, he seeks to capitalize on his being supposedly still in the subjective phase of the crime. Appellant Rosales thus submits that, if found guilty, he should only be held
accountable for attempted delivery of a prohibited drug.
Article 6 of the Revised Penal Code provides:
"ART. 6. Consummated, frustrated, and attempted felonies. - Consummated felonies, as well as those which are frustrated and attempted, are punishable.
"A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is frustrated when the offender performs all the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.
"There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident
other than his own spontaneous desistance."

The subjective phase in the commission of a felony is that portion of its execution starting from the point where the offender begins by overt acts to pursue the crime until he is prevented, against his will, by some
outside cause from performing all of the acts which would produce the offense. If the subjective phase has not yet passed, then the crime is only attempted. If that phase has been done but the felony is not produced, the
crime is frustrated.[47] The crime is consummated if, following the subjective phase, the last of the elements of the felony meets to concur. These rules are inapplicable to offenses governed by special laws.[48]
Unfortunately for appellant, the crime with which he is being charged is penalized by a special law. The incomplete delivery claimed by appellant Rosales, granting that it is true, is thus inconsequential. The act of
conveying prohibited drugs to an unknown destination has been held to be punishable,[49] and it is immaterial whether or not the place of destination of the prohibited drug is reached. [50]
In sum, the facts proven beyond reasonable doubt in this case were that: (a) Two police officers, one of them a woman, conceived of and executed a buy-bust operation; (b) the operation led to the red-handed
apprehension of appellant Rosales just as he delivered the illegal drug; and (c) appellant Enriquez who had peddled the same to the poseur-buyer was himself later arrested shortly thereafter. The sale and delivery of
marijuana constituted punishable acts under Section 4, Article II, of R.A. No. 6425, as amended. Appellants Enriquez and Rosales should bear the consequences of their trifling with the law. The two evidently
confederated towards the common purpose of selling and delivering marijuana. Conspiracy could be inferred from the acts of the accused, whose conduct before, during and after the commission of the crime would
show its existence.[51] It was appellant Rosales who brought the poseur-buyer to appellant Enriquez for the purchase of marijuana. It was upon the instruction of appellant Enriquez, apparently to retain control of the
unpaid portion of the six-kilogram contraband, that appellant Rosales was to carry the sack to the supposed residence of the poseur-buyers. In conspiracy, the act of one conspirator could be held to be the act of the
other.[52]
R.A. No. 7659, amending the Dangerous Drugs Law, now provides that if the quantity of drugs involved in any of the punishable acts is more than any of the amounts specified in the law, the penalty of reclusion
perpetua to death[53] must be imposed. Considering that the marijuana involved here weighed more than 750 grams, the maximum specified amount for marijuana, appellants, ordinarily, are to be meted that
penalty. An amendatory law, however, may only be applied retroactively if it proves to be beneficial to the appellants. In this case, it would not be that favorable to them; hence, like in People vs. Ballagan,[54] the Court
could only impose the penalty of life imprisonment upon appellants. The penalty of reclusion perpetua would mean that the accused would also have to suffer the accessories carried by that penalty, as well as
the higher fine, provided for by R.A. No. 7659.[55] Appellants must, accordingly, still bear the penalty imposed on them by the trial court.
WHEREFORE, the questioned Decision of 21 January 1991 of the Regional Trial Court of Manila, finding appellants Ernesto Enriquez and Wilfredo Rosales guilty beyond reasonable doubt of the crime punished
by Section 4, Article II, of R.A. No. 6425, as amended, and imposing on them the penalty of life imprisonment and the payment of the fine of P30,000 is AFFIRMED. Costs against appellants.
SO ORDERED.
EN BANC

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

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GERARDO BACUNGAY Y CAINDOY, ERIC RICAFRANCO Y MALABANA, CRIS IGLESIA Y OGNALA and RENATO MENDEZ Y DE
LEON, accused-appellants.
DECISION
PER CURIAM:
We view with grave concern the proliferation across the country of criminal syndicates and even loose aggroupments fueling an alarming and unprecedented wave of kidnappings in recent years. Preying mostly on
affluent members of the Filipino-Chinese community, and even on foreign tourists, they rake in millions of pesos in ransom, virtually transforming kidnapping into a lucrative industry in this part of the world. Despite
the determined and intensified efforts of various law enforcement agencies to dismantle and neutralize these outlaws, their illegal activities continue unabated. By any conceivable legal measure, kidnapping for ransom
must be contained and its perpetrators dealt with with the full force of the law, not only because by its nature it is despicable, but more importantly, for reasons of maintaining public order, safety and security, so crucial

to the social and economic progress of the country. Yet, the enormous burden of repressing this plague is not exclusive to the police and military arms of the State. It requires likewise a coordinated participation of the
courts and an uncompromising cooperation of the elements of civil society.
The Decision of the Regional Trial Court of Makati City in Crim. Cases Nos. 95-786, 95-787 and 95-788 finding accused-appellants GERARDO BACUNGAY, ERIC RICAFRANCO, CRIS IGLESIA and RENATO
MENDEZ guilty of three (3) counts of kidnapping for ransom and imposing upon them the penalty of death for each count [1] is before us on automatic review.
The inculpatory evidence against the four (4) accused-appellants shows that at around 8:00 oclock in the evening of 12 March 1995 Ivonne Keh [2] was driving her car along Galaxy Street, Bel-Air Subdivision,
Makati City, with her mother Chinya Hwang who was seated beside her and uncle Alberto Drit Chua who was at the back seat. All of a sudden a red car overtook them and blocked their path, forcing Ivonne Keh to stop.
Three (3) armed men two (2) of whom were later identified as accused-appellants Gerardo Bacungay and Eric Ricafranco, while the third remained unknown -alighted from the red car and started banging the
windows of the car of Ivonne Keh, ordering her to unlock the doors. Ivonne Keh who was now gripped with fear yielded. One of the men dragged her out of the car and shoved her to the back seat. Eric Ricafranco and
his unidentified companion then squeezed themselves at the back seat together with the victims while Gerardo Bacungay took the drivers seat and drove the car out of Bel-Air Subdivision, followed by the red car.
The victims were ordered to close their eyes as they were divested of their money, jewelry and other personal belongings. But Ivonne Keh would occasionally peek to find out where they were being taken and
noticed that they were somewhere in Pasay City, later on, in Bicutan, Taguig. Before long, the cars stopped at a vacant lot in an unknown location. This time all three (3) victims were blindfolded and Alberto Drit Chua
was taken out of the car and commanded to make a phone call to his family to produce P5,000,000.00 for their release.[3] It was already daybreak when accused-appellants and the victims left the place. Later, they
momentarily stopped at an undetermined gasoline station where Ivonne Keh was separated from her mother and uncle, and then proceeded on their way.
After a long drive, Ivonne Keh sensed that they entered an apartelle where she was reunited with her mother and uncle in one of the rooms.[4] The victims later found out that they were somewhere in Tagaytay.
Thereafter, their abductors conferred and deliberated on who should go to Manila to get the money and who should stay. Apparently, it was agreed upon that accused-appellant Eric Ricafranco would stay and guard
Ivonne Keh, while the rest of accused-appellants would go to Manila with Ivonne Kehs mother and uncle to withdraw money from a bank.[5]
As soon as the group left, Ivonne Keh pleaded to Eric Ricafranco to allow her to use the telephone. Eric initially refused but, after repeated entreaties, finally acceded and accompanied Ivonne Keh to the telephone
outside the room.[6] The victim then immediately called a friend, conversed with her in Chinese, and informed her of the situation and her whereabouts.
Meanwhile, the abduction was reported to the Philippine National Police. At about 7:00 oclock in the morning of 13 March 1995 Police Inspector Rolando Bijasa of Camp Gen. Ricardo Papa, Bicutan, Taguig,
Metro Manila, received orders from then Police Chief Superintendent Jewel Canson to conduct a search and rescue operation.
Two (2) teams were organized and deployed to Tagaytay City, the last known whereabout of victim Ivonne Keh. The police operatives scoured the vicinity and eventually tracked down the victim inside the
apartelle. They stormed the room where the victim was detained and rescued her from one of her abductors, Eric Ricafranco, who was then apprehended while watching television. When subjected to a tactical
interrogation, he disclosed to the police that his co-accused Gerardo Bacungay would be back at the apartelle as soon as he secured the ransom.[7]
Consequently, the police rescue teams set up a dragnet for the returning kidnappers. At about 6:30 in the evening police spotters positioned outside the building radioed the rescue teams inside about two (2)
men on board a white car, later identified as accused-appellants Cris Iglesia and Renato Mendez, entering the apartelle compound. The two (2) men went to the front desk of the hotel and, after inquiring from the
attendant, proceeded to the room of Ivonne Keh and Eric Ricafranco. The waiting policemen immediately nabbed the two (2) as soon as they entered the room. Cris Iglesia and Renato Mendez vehemently denied any
knowledge of the kidnapping, claiming that they were simply hired by Bacungay to pick-up an eloping couple in Tagaytay City who turned out to be kidnap victim Ivonne Keh and Eric Ricafranco who was guarding
her.
Gerardo Bacungay was apprehended when another police team headed by a certain Capt. Agbayalde arrived at his place in Better Living, Paraaque, Metro Manila, and effected his arrest.[8] The third member of
the kidnap group eluded arrest and remained at large to date. No evidence exists on record as to how the other victims, Chinya Hwang and Alberto Drit Chua, were rescued or whether ransom had in fact been paid,
since after the incident these two (2) victims hurriedly left the country and decided to settle in Canada, and thus failed to testify during the trial.
Accused-appellants were charged with kidnapping for the purpose of extorting ransom under three (3) separate Informations. They pleaded innocent to the charges. Gerardo Bacungay and Eric Ricafranco
proffered a general denial; while Cris Iglesia and Renato Mendez banked heavily on the lack of positive identification by complaining witness Ivonne Keh. As earlier stated, the trial court convicted accused-appellants as
charged, and sentenced all of them to death. In rejecting their defenses, the trial court held in the main The Court rejects the defense of accused Renato Mendez and Cris Iglesia as ridiculous and without factual basis. In the first place, there was no couple that eloped. Ivonne Keh did not elope with Eric Ricafranco. The
latter was arrested in a room of an apartelle in Tagaytay City guarding Ivonne Keh. Besides, common sense will tell us that relatives of an eloping couple will not hire any person to fetch them specially when they were

not known to the couple. On the other hand, the evidence clearly shows that kidnap victims Ivonne Keh, Alberto Chua and Chinya Hwang pointed to the accused during the police investigation and by Ivonne Keh
during the hearing as one among those who kidnapped them.[9]
Accused Eric Ricafranco was also positively identified by kidnap victims Ivonne Keh during the trial and by Alberto Chua and Chinya Hwang during the police identification line-up as among those who kidnapped them
x x x x Finally, accused Gerardo Bacungay was also positively identified by the victims Ivonne Keh, Chinya Hwang and Alberto Chua during the police identification line-up at the police station and by Ivonne Keh during
the trial as one of those who kidnapped them x x x x From the recitation of findings of facts of the Court, there is sufficient evidence on record to prove that the purpose of kidnapping was for extorting ransom from the
victims.[10]
In the present recourse, accused-appellants insist on the reversal of the judgment of conviction and impute the following errors to the court below: (a) The trial court erred in convicting accused-appellants
Gerardo Bacungay and Eric Ricafranco on the basis of the doubtful identification by complainant Ivonne Keh, who was blindfolded at the time of the purported kidnapping, and given the poor lighting condition of the
area where she was allegedly abducted; and, (b) The trial court erred in convicting Cris Iglesia and Renato Mendez in the absence of a real and direct evidence linking them to the kidnapping.
After a careful review of the records and the arguments of the prosecution and defense, we are satisfied with the finding of the court a quo that all four (4) accused-appellants are indeed guilty of the crimes charged
for which they must be punished accordingly.
We deal first with the merits of the appeal of Gerardo Bacungay and Eric Ricafranco.
Complaining witness Ivonne Keh positively identified accused-appellants Gerardo Bacungay and Eric Ricafranco as two (2) of those who abducted them on 12 March 1995. In the police line-up conducted during
the criminal investigation of the case, and more significantly during the trial, she pointed to accused-appellants Bacungay and Ricafranco as part of the group of men who kidnapped them, thus ATTY. FERNANDEZ: Now you stated that three (3) persons approached you from the car that blocked yours, could you remember the faces of those three (3) persons who drove the car?
WITNESS: Yes, two of them are here, sir.
COURT:

(To the witness) And?

WITNESS: The third one is not here.

COURT:

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

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

Yes, is not here because he was able to escape. Can you point out who are those two, who among the three (3) blocked your way?

WITNESS: Yes your Honor, there.

COURT:

(To the accused) What is your name?

WITNESS: Eric Ricafranco, your Honor.

COURT:

And the other one?

ATTY. FERNANDEZ: (Butted in to the witness) You said two, how about the other one? x x x x[11]
COURT:

(To the witness) The whole duration, that is what you mean. The whole duration that you were brought and held in that apartelle, can you identify the people who were there?

WITNESS: Yes, sir.

COURT:

Who are they?

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

(To both accused) Your name?

ACCUSED: Eric Ricafranco, sir.

COURT:

How about you?

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

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

Witness pointing to accused Gerry Bacungay.

Q: And who was seated beside your uncle?

A: There, sir.
COURT:

Witness pointing to accused Eric Ricafranco.[14]

Q: This skin mask, how was it placed over the head of the driver?
A: I was shocked, sir. I did not notice that anymore, I did not mind it, sir.
Q: So you did not notice what was he wearing?
A: No, sir.

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

Are you referring to him?

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

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

1.

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

2.

If it shall have been committed simulating public authority.

3.

If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or if threats to kill him shall have been made.

4.

If the person kidnapped or detained shall be a minor, except when the accused is any of the parents, female or a public officer.

The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances abovementioned were present in
the commission of the offense.
When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture or dehumanizing acts, the maximum penalty shall be imposed (Sec. 8, RA 7659).
The essence of the crime is the actual deprivation of the victims liberty coupled with an indubitable proof of intent of the accused to effect the same. In the instant case, there is no mistaking the clear,
overwhelming evidence that accused-appellants Gerardo Bacungay and Eric Ricafranco abducted Ivonne Keh and the other victims at gunpoint and deprived them of their freedom. They were blindfolded to prevent
them from knowing the place where they were transported and, in order to prevent Ivonne Keh from escaping, she was assigned an armed guard inside the room of the apartelle where she was detained. All these facts
more than satisfy the elements necessary to constitute kidnapping.
We likewise find abundant evidence that the kidnapping was committed for the purpose of extorting ransom from the victims, as to warrant the mandatory imposition of the death penalty. Complaining witness
Ivonne Keh testified WITNESS: I stayed in the car, he took my uncle in and I and my Mom were left in the car. They ordered my uncle to call and send money.
ASST. PROSECUTOR DE JOYA: Why were they asking money?
WITNESS: They were asking for 5 Million, sir.
ASST. PROSECUTOR DE JOYA: For what?
WITNESS: That is for our release, sir x x x x[21]
ATTY. ELEVASO: When you said they were asking for ransom, how did you know that they were asking for ransom?
WITNESS: They were asking only money to (sic) us, sir.
ATTY. ELEVASO: From whom?
WITNESS: From my mom, sir.[22]
Prosecution witness P/Supt. Arthur Castillo, one of the arresting officers, confirmed that accused-appellants demanded ransom from the victims ATTY. FERNANDEZ: And you also asked Eric Ricafranco about his companion?
WITNESS: Well, he confirmed what Ivonne told us. That Gerry (Bacungay) brought them there and the instruction was just to wait because they were coming back as soon as they got the ransom
money (underscoring supplied).[23]

It is immaterial that no direct evidence exists on record on the actual payment of the ransom money. After all, actual payment of ransom is not necessary for the crime to be committed, it being enough that there
be at least an overt act of demanding ransom from the victim or any other person as in this case.[24] Our pronouncement in People v. Salimbago[25] is relevant Neither actual demand for nor actual payment of ransom is necessary for the crime to be committed. It is enough if the crime was committed for the purpose of extorting ransom. Considering therefore that the
kidnapping was committed for such purpose, it is not necessary that one or any of the four circumstances be present x x x x
As regards the appeal of accused-appellants Cris Iglesia and Renato Mendez, the Solicitor General suggests that they be acquitted on the ground that there is no clear-cut evidence on how they became part of the
criminal conspiracy. Evidently, the Solicitor General believed accused-appellants story that they had no knowledge of the kidnapping of the victims, and they merely went to Tagaytay City on an errand, for a fee, from
Gerardo Bacungay purportedly to pick up a couple who eloped, and bring them back to Bicutan In this case, appellants Cris Iglesia and Gerardo Bacungay, due to sheer promise of money in the amount of P1,000.00 once they fetch two (2) lovers in Tagaytay City, proved themselves to be at the wrong place and at
the wrong time x x x x it would appear nonetheless that it is appellant Cris Iglesia and Renato De Leons (sic) incidental acquaintance to appellant Gerardo Bacungay that plunged them deeper into the assumed
conspiracy. What initially appeared to them as an errand for a fee was intertwined to a conspiracy which they immediately denied any knowledge of. An assumed intimacy, or in this case, acquaintance, however, has no
legal bearing to the charge of conspiracy as conspiracy transcends companionship.
In this case, however, there is a gnawing dearth of evidence that should satisfactorily show that appellants Cris Iglesia and Renato De Leon (Mendez?) agreed to the kidnapping scheme. Without evidence as to how
appellants Cris Iglesia and Renato Mendez participated in its perpetration, conspiracy cannot be, appreciated against them. Evidence of intentional participation is indispensable, as appellants mere presence at the
scene of the crime cannot be considered as proof of conspiracy.[26]
We disagree with the conclusions of the Solicitor General. Indeed, it is difficult to accept accused-appellants feeble and anemic excuse that they had nothing to do with the kidnapping of Ivonne Keh, her mother
Chinya Hwang and uncle Alberto Drit Chua. As observed by the trial court to which we agree, common sense will tell us that relatives of an eloping couple will not hire any person to fetch them especially when they
were not known to the couple.[27] Moreover, it is inconceivable that members of a kidnapping syndicate would entrust the performance of an essential and sensitive phase of their well-planned criminal scheme to
people not in cahoots with them, and who had no knowledge whatsoever of the details of their nefarious plan. Obviously, Cris Iglesia and Renato Mendez mission in going to Tagaytay City was not as innocent as they
claimed it to be; instead, it was part and parcel of the elaborate plot to kidnap the victims and extort ransom from them. In fact, they virtually admitted their participation in the crime, i.e., to fetch Ivonne from her place
of detention in Tagaytay City and transfer her to another place in Bicutan, although they were dissociating themselves therefrom by proclaiming lack of knowledge of the criminal design. It would therefore be putting
too much strain on the imagination that they were not privy to the plot of Gerardo Bacungay and Eric Ricafranco and that they did not participate in carrying out the criminal conspiracy.
Undoubtedly, conspiracy exists among accused-appellants in perpetrating the kidnapping for ransom. Their individual participation, viewed in its totality, points to a joint purpose and criminal design. Thus,
Gerardo Bacungay and Eric Ricafranco snatched the victims from Bel-Air Village, Makati, Metro Manila, and transported and detained them in an apartelle in Tagaytay City; Eric Ricafranco guarded Ivonne Keh to
prevent her from escaping, while Gerardo Bacungay and his unidentified companion were busy securing the ransom money in Manila; and, Cris Iglesia and Renato Mendez were designated to pick up Ivonne Keh in
Tagaytay City and transfer her to Bicutan to avoid early detection until the payment of ransom money and her eventual release. These acts were complementary to one another and geared toward the attainment of a
common ultimate objective: to extort a ransom of P5 million in exchange for the victims freedom.
There is conspiracy when two (2) or more persons come to an agreement concerning the commission of a felony and decide to commit it. Proof of agreement to commit a felony, in view of the secrecy by which it is
usually hatched, need not rest on direct evidence as the agreement itself may be inferred from the conduct of the accused, disclosing a common understanding among them with respect to the commission of the offense.
Thus, if it is proved that two (2) or more persons aimed their acts toward the accomplishment of the same unlawful object, each doing a part so that their acts, though apparently independent, were in fact connected and
cooperative, indicating closeness of personal association and a concurrence of sentiment, then conspiracy may be inferred though no actual meeting among them to concert means is proved.[28] Consequently, in the
instant case, accused-appellants Cris Iglesia and Renato Mendez are equally liable for the crime and they should not be allowed to escape the full force of the rule that in a conspiracy the act of one is the act of all.
Finally, in what perhaps is his final bid at exoneration, accused-appellant Renato Mendez enumerated in his brief his alleged numerous religious activities and accomplishments, suggesting thereby that he was not
capable of committing the crime imputed to him. However, the fact that accused-appellant is endowed with sterling qualities hardly justifies the conclusion that he is innocent of the charges against him or that he is
incapable of committing them. Manifestations of devotion or piety supposedly equated with religious fervor are not always emblems of good conduct and do not guarantee that an accused cannot commit a crime. An
accused is not entitled to an acquittal simply because of his previous, or even present, good moral character and exemplary conduct. The affirmance or reversal of his conviction must be resolved on the basic issue of
whether his guilt has been proved beyond any peradventure of doubt.

WHEREFORE, the Decision of the court a quo finding accused-appellants GERARDO BACUNGAY Y CAINDOY, ERIC RICAFRANCO Y MALABANA, CRIS IGLESIA Y OGNALA and RENATO MENDEZ Y DE
LEON guilty beyond reasonable doubt of kidnapping for ransom defined and penalized under Art. 267 of The Revised Penal Code, as amended by RA 7659, and imposing upon each of them the supreme penalty of
death, is AFFIRMED.
Three (3) Justices of the Court maintain their position that RA 7659 is unconstitutional insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of the majority that the law is constitutional
and the death penalty can lawfully be imposed in the instant case.
Upon finality of this Decision and pursuant to Art. 83 of The Revised Penal Code as amended by Sec. 25 of RA 7659, let the records of this case be forthwith forwarded to Her Excellency, the President of the
Philippines, for the possible exercise of her pardoning power.
SO ORDERED.
THIRD DIVISION

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

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

DECISION
SANDOVAL-GUTIERREZ, J.:
Since the olden times, no impulse has been proven so powerful than that of self-preservation. Thus, the law, out of tenderness for humanity, permits the taking of life of another in defense of ones person in times
of necessity. In the words of the Romans of ancient history: Quod quisque ob tutelam corporis sui fecerit, jure suo fecisse existimetur.[1]
Assailed in this petition for review on certiorari is the Decision[2] dated March 27, 2001 of the Sandiganbayan in Criminal Cases Nos. 17015 and 17016 finding Raul Zapatos, petitioner herein, guilty beyond
reasonable doubt of the crimes of murder and frustrated murder and sentencing him as follows:
WHEREFORE, under Criminal Case No. 17015, the accused RAUL ZAPATOS, is hereby found GUILTY beyond reasonable doubt of the crime of MURDER, defined and penalized under Article 248, Revised
Penal Code and, considering the presence of one (1) mitigating circumstance with no generic aggravating circumstance, he is hereby sentenced to suffer the penalty of imprisonment of RECLUSION PERPETUA and
to indemnify the heirs of the late Mayor Leonardo Cortez in the amount of P50,000.00;
Under Criminal Case No. 17016, the same accused, RAUL ZAPATOS, is hereby found GUILTY beyond reasonable doubt of the crime of FRUSTRATED MURDER, defined and penalized under Article 248 in
relation to Article 6 of the Revised Penal Code, and, considering the presence of one (1) ordinary mitigating circumstance of voluntary surrender which is not offset by any generic aggravating circumstance, applying the
Indeterminate Sentence Law he is hereby sentenced to suffer the penalty of from Six (6) Years and One (1) day of prision mayor, as minimum to Twelve (12) Years and One (1) day to Fourteen (14) years and Eight
(8) Months of reclusion temporal, as maximum, and to indemnify SOCRATES PLATERO in the amount of P25,000.00 by way of civil indemnity.
The accused shall pay the costs.
SO ORDERED. (Emphases supplied)

In two separate Informations, Special Prosecution Officer Gualberto J. Dela Llana charged both petitioner and Victoriano Vidal[3] with murder and frustrated murder, committed as follows:
Criminal Case No. 17015 (Murder)
That on or about January 14, 1990, at Bayugan, Agusan del Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, both public officers, being then an employee and Community
Environment Natural Resources Officer, respectively of the Department of Environment and Natural Resources, assigned at Bayugan, Agusan del Sur, and committing the crime herein charged in relation to their
office,with treachery and evident premeditation and with intent to kill and with the use of firearm, did then and there willfully, unlawfully and feloniously attack and shoot Leonardo Cortez, Municipal Mayor
of Bayugan, Agusan del Sur, hitting him at the vital parts of his body and inflicting upon said Leonardo Cortez mortal wounds which caused his instantaneous death, to the damage and prejudice of the victims heirs.
CONTRARY TO LAW.[4]
Criminal Case No. 17016 (Frustrated Murder)
That on or about January 14, 1990, at Bayugan, Agusan del Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, both public officers, being then an employee and Community
Environment Natural Resources Officer, respectively of the Department of Environment and Natural Resources, assigned at Bayugan, Agusan del Sur and committing the crime herein charged in relation to their
office, with intent to kill and with the use of firearm, did then and there willfully, unlawfully and feloniously attack and shoot one Socrates Platero, hitting him at his left leg and inflicting upon said Socrates Platero
mortal wound which could have caused his death had it not been for the timely medical assistance given him to the damage and prejudice of said victim.
CONTRARY TO LAW.
On arraignment, petitioner pleaded not guilty.[5] Forthwith, trial ensued.[6]
The case for the prosecution is woven basically on the testimony of Socrates Platero as follows: On January 14, 1990, at 8:00 oclock in the evening, witness Platero and Mayor Leonardo Cortez of Bayugan, Agusan
Del Sur were on their way home from Butuan City.[7] En route, the patrol car they were riding ran out of gasoline, prompting them to stop at the Bureau of Internal Revenue (BIR) Monitoring Station, Barangay
Maygatasan, Bayugan. With no gasoline to spare, Station Guard Pfc. Michael Gatillo accompanied them to the nearby Department of Environment and Natural Resources (DENR) checkpoint.[8] There, they found
Pacheco Tan. Pfc. Gatillo approached Tan and requested for extra gasoline. Suddenly, Tan ran towards the guardhouse.[9]After a few seconds, Platero heard a gunshot originating therefrom. The bullet hit
Mayor Cortez, causing him to collapse to the ground.[10] Thereupon, Platero saw petitioner Raul Zapatos, holding an armalite in a firing position. Platero immediately retaliated and an exchange of gunfire
ensued. During this time, Platero tried to pull Mayor Cortez away from the crossfire. Plateros foot was hit.[11] He did not see who shot him.[12] He then took cover on the other side of the highway.
Pfc. Gatillo testified that he was the policeman assigned at the BIR Monitoring Station on January 14,1990. [13] At about 8:00 oclock in the evening, he accompanied Platero and Mayor Cortez to the DENR
checkpoint to ask for some gasoline.[14] Upon seeing Tan, he asked him about petitioners whereabouts. Tan replied that petitioner was sleeping inside the guardhouse.[15] Mayor Cortez also
inquired from Tan where petitioner was. Tan merely reiterated his answer.[16] Then Tan walked towards the guardhouse and in a matter of seconds, he (witness Gatillo) saw petitioner firing his gun at
Mayor Cortez.[17] Mayor Cortez fell to the ground with blood oozing from his mouth.[18] Platero attempted to pull Mayor Cortez but another shot was fired and this time, the Mayor was hit on the leg. While running
across the highway to take cover, Platero was also hit on the leg.[19] When the shooting stopped, he (Gatillo) brought Platero and Mayor Cortez to Bayugan Community Hospital.[20]
Dr. Romeo Cedeo, Chief of the Bayugan Community Hospital, declared that when he attended to Mayor Cortez on January 14, 1990, [21] the latter was already dead. He did not conduct an autopsy or examine the
wounds. He merely conducted a superficial examination which showed that four (4) wounds had been inflicted upon Mayor Cortez one in the vicinity of the left nipple, one on the right axillary region, one on the right
knee, and another on the left iliac region.[22]
Building his case on the justifying circumstance of self-defense, petitioner presented a different version. He testified that he was the Team Leader of the DENR Sentro Striking Force whose primary duty is to seize
illegally-cut forest products.[23] He held office at the DENR checkpoint, Barangay Maygatasan, Bayugan, Agusan del Sur. On January 14, 1990, at about 7:00 oclock in the evening, he instructed Pacheco Tan, his coworker, to man the checkpoint as he was sleepy. He also directed Tan to wake him up should there be any problem.[24] While sleeping, a burst of gunshots awakened him. He saw that the guardhouse was
being riddled with bullets,[25] piercing the walls and hitting some objects inside. Immediately he dropped to the floor and took the armalite rifle from the locker located under his bed. [26] Hiding behind a barricade, he
fired at his attackers. Thereafter, fearing for his life, he broke the flooring of the guardhouse and crawled through the hollow portion underneath to reach its back door.[27] He walked away until he reached Nilo Libres'

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

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

Exclusive original jurisdiction in all cases involving:

(1)

Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code;

(2) Other offenses or felonies committed by public officers and employees in relation to their office, including those employed in government-owned or controlled corporations, whether simple or complexed with
other crimes, where the penalty prescribed by law is higher than prision correccional or imprisonment for six (6) years, or a fine of P6,000.00 x x x. (Emphasis supplied)
In a catena of cases decided under the aegis of P.D. No. 1606, such as Aguinaldo vs. Domagas,[58] Sanchez vs. Demetriou,[59] Natividad vs. Felix,[60] and Republic vs. Asuncion,[61] we ruled that two requirements
must concur under Sec. 4 (a) (2) for an offense to fall under the Sandiganbayan's jurisdiction, namely: (1) the offense committed by the public officer must be in relation to his office; and (2) the penalty prescribed
must be higher than prision correccional or imprisonment for six (6) years, or a fine of P6,000.00. Obviously, the first requirement is the present cause of discord between petitioner and the People.
An offense is deemed to be committed in relation to the accuseds office when such office is an element of the crime charged or when the offense charged is intimately connected with the
discharge of the official function of the accused.[62] In Cunanan vs. Arceo,[63] we held:
In Sanchez vs. Demetriou [227 SCRA 627 (1993)], the Court elaborated on the scope and reach of the term offense committed in relation to [an accused's] office by referring to the principle laid down in Montilla vs.
Hilario [90 Phil 49 (1951)], and to an exception to that principle which was recognized in People vs. Montejo [108 Phil 613 (1960)]. The principle set out in Montilla vs. Hilario is that an offense may be
considered as committed in relation to the accused's office if the offense cannot exist without the office such that the office [is] a constituent element of the crime x x x. In People vs.
Montejo, the Court, through Chief Justice Concepcion, said that although public office is not an element of the crime of murder in [the] abstract, the facts in a particular case may show
that x x x the offense therein charged is intimately connected with [the accused's] respective offices and was perpetrated while they were in the performance, though improper or
irregular, of their official functions. Indeed, [the accused] had no personal motive to commit the crime and they would not have committed it had they not held their aforesaid offices. . .
.

The Informations filed with the Sandiganbayan allege that petitioner, then a public officer, committed the crimes of murder and frustrated murder in relation to his office, i.e., as Community Environment and
Natural Resources Officer of the DENR.[64] It is apparent from this allegation that the offenses charged are intimately connected with petitioners office and were perpetrated while he was in the performance of his
official functions. In its Resolution[65] dated August 25, 1992, the Sandiganbayan held that petitioner was on duty during the incident; that the DENR Checkpoint was put up in order to prevent incursions into the
forest and wooded area; and that petitioner, as a guard, was precisely furnished with a firearm in order to resist entry by force or intimidation. Indeed, if petitioner was not on duty at the DENR checkpoint on
January 14, 1990, he would not have had the bloody encounter with Mayor Cortez and his men.[66] Thus, based on the allegations in the Informations, the Sandiganbayan correctly assumed jurisdiction over the cases.
Significantly, while petitioner had already pleaded not guilty before the RTC, jeopardy did not attach as it did not acquire jurisdiction. There can be no double jeopardy where the accused entered a plea in court
that had no jurisdiction.[67]
We now go to the substantial merits of the case.
After considering the records very closely, we are constrained to reject the evidence for the prosecution. Jurisprudence is settled that whatever is repugnant to the standards of human knowledge, observation and
experience becomes incredible and lies outside judicial cognizance. Consistently, we ruled that evidence, to be believed, must proceed not only from the mouth of a credible witness but must be credible in itself as to
hurdle the test of conformity with the knowledge and common experience of mankind.[68] Here, the prosecution witnesses, Platero and Pfc. Gatillo, are not credible. Indeed, their testimonies bear the earmarks of
falsehood.
First, Plateros tale that Pacheco Tan, who was then on first shift at the DENR checkpoint that day, suddenly ran towards the DENR Checkpoint when Pfc. Gatillo asked him for some gasoline simply does not
make sense. Why would a person run away with fear for such a simple request? Even former Sandiganbayan Justice Regino Hermosisima, Jr.[69] was mystified by such a reaction, constraining him to delve deeper
into the matter, thus:
Q And you want the Court to understand that immediately after Gatillo asked for gasoline, Pacheco Tan ran towards inside the BFD monitoring center?
A

Yes, he ran away, ran inside.

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

I do not know.
xxx

xxx

xxx

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

No.

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

I do not know.[70]

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

Yes, sir.

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

Yes sir.
xxx

xxx

xxx

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

No, more Sir.

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

No, sir.
xxx

xxx

xxx

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

Yes, sir.[71]

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

20: After realizing that Mayor CORTEZ was the one who led the attack of the DENR CENTRO Strike Force Headquarters, what could be the reason why the Mayor and his
men attacked your headquarters?

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

21:

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

22:

22: Sometime in September, 1989, when we apprehended a truck load of illegally cut and transported flitches, Mayor CORTEZ requested that the truck carrying the flitches
be turned over to his custody which truck was the regular carrier of flitches consigned to their sawmill. The request was granted by CENRO VIDAL and the proper
documents for the turn over of custody were properly made. After that, during the month of October, 1989, we again apprehended the same truck previously turned over to
the custody of Mayor again carrying illegally cut and transported flitches which I believe angered the Mayor.

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

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

Also, three (3) days before the incident at the CENRO Strike Force Headquarters in Maygatasan, I also had a confrontation with an Army soldier acting as Security of Mayor CORTEZ, one named DANNY
GESTA.

Q 23:
A

Will you narrate what that confrontation was all about?

23: On January 11, 1990, while I was outside of the DENR CENRO Strike Force Headquarters repairing my motorcycle, a truck loaded with illegally cut flitches just passed our Headquarters without
stopping at our headquarters for inspection so when the truck came back, I stopped the same truck and called the driver and asked him who is the owner of the flitches. The driver told me that the
flitches belonged to DANNY GESTA and when I asked him where he took the flitches, he told me that he took the flitches to the sawmill of the CORTEZ. When I asked him who
escorted it, the driver told me that it was one named NONO so I told the driver to tell NONO to come to our Headquarters so we could talk. On the following day, when I went to a shop owned by
MAWE RABUYA for consultation of my motorcycle, DANNY GESTA was there. I requested MAWE RABUYA to take a look of my motorcycle for any defect and it was at this instance that DANNY
GESTA approached me and told me and to quote: UNSA MANG KA NGA IMO MANG KONG IPAREPORT-REPORT SA IMO. WALA MANG GANI MAKAPA-REPORT ANG CORONEL SA AKO. I then
told and explained to DANNY GESTA that it was not him whom I wanted to talk and report to me but NONO. DANNY GESTA suddenly stood up and told me and to quote: PUTANG INA KA! BUKON NAKO NANG ULO NIMO. To avoid further argument, I told MAWE that I better go and I left.

Q 24:

What did you do after that confrontation with DANNY GESTA?

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

24:

Even NBI Agents Atty. Decasa and Ali C. Vargas found that Mayor Cortez had an ulterior motive of revenge against petitioner, thus:
x x x The investigating agents are inclined to believe that the late Mayor Cortez must have some ulterior motive of revenge in going to the headquarters at that late hour of the night,
armed with high-powered guns, together with policemen and bodyguards, and under the influence of liquor, especially so that it is of public knowledge that he had been harboring hatred
towards ZAPATOS who had exhibited antagonism to his illegal activities. [74]
Third, the account of Pfc. Gatillo and Platero that petitioner suddenly came out of the guardhouse and shot Mayor Cortez a matter of seconds after Tan ran towards the place is incredible.[75]For one, both the
prosecution and the defense witnesses testified that petitioner was sleeping inside the guardhouse. For another, Tan did not have the chance to wake petitioner prior to the shoot-out. The
prosecution witnesses admitted this fact.
Even before Tan could enter the guardhouse, he already heard the burst of gunfire coming from outside of the checkpoint, prompting him to immediately run towards the backside of the guardhouse. Now, to
say that petitioner suddenly sprang from his slumber and shot Mayor Cortez without any reason is certainly at odds with common experience.
Contrary to the findings of the Sandiganbayan, the totality of the contradictions, inconsistencies and flaws in the declarations of Platero and Pfc. Gatillo does not simply refer to minor or inconsequential details
which may be justifiably overlooked, nor are they honest lapses which do not affect or impair the intrinsic value of their testimony. They relate instead to points material and essential to establish petitioners
culpability. The obliquity that pervades the prosecutions account of the incident creates the impression that it was rehearsed and concocted.
In contrast, the consistent testimonies of the defense witnesses, as well as the existing physical evidence, lend strong support to petitioners plea of self-defense.
It is basic that for self-defense to prosper, the following requisites must concur: (1) there must be unlawful aggression by the victim; (2) that the means employed to prevent or repel such aggression were
reasonable; and (3) that there was lack of sufficient provocation on the part of the person defending himself.[76]
All the aforestated requisites are present in this case. That there was unlawful aggression is clearly shown by the bullet-riddled guardhouse. It speaks eloquently than a hundred witnesses.[77]We are convinced that
Mayor Cortez, Platero and Pfc. Gatillo insisted to know petitioners whereabouts and that upon learning that he was sleeping, executed the tyrannical attack. That they went to the DENR checkpoint with ready police
back-up for any eventuality was proven not only by Pacheco Tan, but also by Lazarito Estorque and NBI Agent Decasa. Clearly, they proceeded to the checkpoint not on a mission of peace.
Taking into consideration the number of the aggressors, the nature and quality of their weapons, and the manner of the assault and the fact that petitioner was alone, we believe that petitioners use of an armalite
rifle to defend himself is reasonable.
Finally, that there was lack of sufficient provocation on petitioners part is evidenced by the testimonies of the defense witnesses that he was sleeping inside the guardhouse prior to the initial
shooting. Significantly, no evidence whatsoever was presented showing that he assaulted or provoked his aggressors into attacking him.

Petitioners act of surrendering himself and his weapon to the authorities immediately the day after the incident dissipates any conjecture that he had a criminal mind when he fired his gun upon the victims. His
courage to face his accuser, in spite of the opportunity to flee, indicates his innocence.
Thus, while it is true that the "factual findings of the trial court are entitled to great weight and are even conclusive and binding to this Court, this principle does not apply here. The findings of facts of the
Sandiganbayan are not sufficiently established by evidence, leaving serious doubts in our minds regarding the culpability of petitioner.
In sum, we find that the prosecution failed to prove by evidence beyond reasonable doubt the guilt of herein petitioner for murder and frustrated murder. What is apparent is that Mayor Cortez and his men were
the aggressors. Petitioner, who was just awakened by the gunfire, was justified in firing back at them. His act is in accordance with mans natural instinct to save his life from impending danger. We cannot expect him
to simply retreat or wait for the bullet to hit and kill him.
WHEREFORE, the Decision dated March 27, 2001 of the Sandiganbayan is REVERSED and petitioner is ACQUITTED of the crimes of murder and frustrated murder.
The Director of Prisons is hereby directed to cause the release of petitioner unless the latter is being lawfully held for another crime and to inform this Court accordingly within ten (10) days from notice.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-23734

April 27, 1967

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
TEODORO SABIO, defendant-appellant.
Antonio T. de Jesus for defendant and appellant.
Office of the Solicitor General for plaintiff and appellee.
BENGZON, J.P. J.:
At about six p.m. of April 12, 1963, Teodoro Sabio was squatting with a friend, Irving Jurilla, in the plaza of Central Manapla, Manapla, Negros Occidental. Romeo Bacobo and two others Ruben Miosa and Leonardo
Garcia approached them. All of them were close and old friends.
Romeo Bacobo then asked Sabio where he spent the holy week. At the same time, he gave Sabio a "footkick greeting", touching Sabio's foot with his own left foot. Sabio thereupon stood up and dealt Romeo Bacobo a fist
blow, inflicting upon him a lacerated wound, inch long, at the upper lid of the left eye. It took from 11 to 12 days to heal and prevented Romeo Bacobo from working during said period as employee of Victorias Milling
Co., Inc.
Sabio was thereafter prosecuted for less serious physical injuries. In the municipal court he was found guilty and sentenced to imprisonment of 5 months and 10 days plus costs. In the Court of First Instance, however,
to which he appealed, he was found guilty but with the mitigating circumstance of provocation, so that the penalty imposed was one (1) month and five (5) days of arresto mayor plus indemnity of P100 and
costs.1wph1.t

Defendant appealed from this judgment to Us to raise as a pure question of law the sole issue of whether, under the facts is determined below, a fist blow delivered in retaliation to a "foot-kick greeting" is an act of selfdefense and/or justifying circumstance entitling the accused to acquittal and relief from all liabilities, civil and criminal.
A primordial requisite for self-defense is unlawful aggression (Art. 11, Rev. Penal Code). And for unlawful, aggression to be present, there must be real danger to life or personal safety (People vs. Beatriz Yuman, 61 Phil.
786). For this reason, a mere push or a shove, not followed by other acts, has been held insufficient to constitute unlawful aggression (People vs. Yuman, supra). A playful kick the lower court rejected defendant's
claim that it was a "vicious kick" at the foot my way of greeting between friends may be a practical joke, and may even hurt; but it is not a serious or real attack on a person's safety. Appellant's submission that it
amounts to unlawful aggression cannot therefore be sustained. As rightly found by the Court of First Instance, such kick was only a mere slight provocation.
Reference is made to a decision of the Supreme Court of Spain (prom. Jan. 20, 1904, 72 Jur. Crim. 123-125), considering a slap on the face an unlawful aggression. No parity lies between said case and the present. Since
the face represents a person and his dignity, slapping, it is a serious personal attack. It is a physical assault coupled with a willful disregard, nay, a defiance, of in individual's personality. It may therefore be frequently
regarded as placing in real danger a person's dignity, rights and safety. A friendly kick delivered on a person's foot obviously falls short of such personal aggression.
Wherefore, the judgment appealed from is hereby affirmed in toto. Costs against appellant. So ordered.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-65913 July 28, 1986
RENATO B. TORRES, petitioner,
vs.
THE HONORABLE SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, respondents.

FERIA, J.:
This is a petition for review on certiorari of the decision of the Sandiganbayan dated December 12, 1983, convicting petitioner Renato B. Torres of homicide, the dispositive portion of which reads as follows:
WHEREFORE, accused Patrolman Renato B. Torres y Barcena is hereby found guilty beyond reasonable doubt as principal of the crime of Homicide, defined and penalized under Article 249 of the
Revised Penal Code. Appreciating the mitigating circumstances of voluntary surrender and the victim's sufficient provocation or threat immediately preceeding the act sued upon and without any
aggravating circumstance to offset the same, the penalty of reclusion temporal prescribed by law is reduced by one degree to prision mayor, pursuant to paragraph 5 of Article 64 of the Revised Penal
Code. Applying the Indeterminate Sentence Law, the said accused is hereby sentenced to suffer an indeterminate penalty, ranging from FOUR (4) YEARS and TWO (2) MONTHS of prision
correccionalas minimum, to EIGHT (8) YEARS and ONE (1) DAY of prision mayor, as maximum; to pay the legal heirs of the deceased, Danilo Rivera y Pumicpic, the amount of P2,920.00 as actual
damages; P24,000.00 for the unrealized net income or lost earning capacity of said deceased for a period of ten (10) years; and P15,000.00 as indemnity for the death of the latter.
The statement of facts summarized by the Solicitor General in his Comment, which was later considered as his Memorandum, is not disputed by petitioner.

Petitioner Renato Torres became a member of the Metropolitan Police Force, Southern Police District on March 16, 1980. In the afternoon of April 5, 1982, he and another policeman, Corporal Ruben Onelia, were
assigned to direct traffic at the corner of C. Jose Street and Epifanio de los Santos Avenue (EDSA) in Pasay City.
At about 5:30 p.m., petitioner saw the victim Danilo Rivera his motorcycle in a zigzag manner along C. Jose Street and then along EDSA. Shortly after the victim came out of C. Jose Street, petitioner called his attention
and commanded him to pull over to the side. The victim questioned his apprehension. Petitioner approached him and pointed out that he was driving in a zigzag fashion. He observed that the victim was either drunk or
high on drugs because of his red eyes. The victim replied that he was not violating any traffic regulation. At this juncture, the discussion between the two became more heated. Petitioner required the victim to produce
his driver's license. The victim refused to hand it over. Petitioner threatened to take him to the police station. He went closer to the victim who then dismounted from his motorcycle. Petitioner insisted that the victim go
with him to the police station but the victim refused to budge. When petitioner reiterated his command, the victim retorted that he was delaying him in his work. Nevertheless, petitioner disregarded his remark and
continued trying to force the victim to go with him to the police station.
At this point, the victim defied the petitioner by pulling out from his pants pocket a bladed knife commonly known as "tusok", which is six inches in length, including the two-inch handle. The victim lunged at petitioner
who was two meters away. Petitioner moved back, drew his gun and warned the victim that he will shoot if he (the victim) attacked again. Petitioner noticed that the victim was not standing steady. When he attempted a
second thrust, the victim lost his balance. At that instant, petitioner shot him at the back. When the victim fell, petitioner immediately hailed a taxi and took the victim to the Pasay City General Hospital. He then left for
the police headquarters to surrender. He placed himself under the custody of Colonel Alfredo Angeles, chief of the Investigation Division. He turned over to him his service revolver and the knife carried by the victim. In
the meantime, the victim died and was duly autopsied by Dr. Renato C. Bautista. He noted the cause of death in his report (Exh. A): Hemorrhage, profuse, secondary to gunshot wound; Back, left side. After due
investigation, petitioner was charged with homicide two days later, or on April 7, 1982 (tsn, pp. 4-7, July 28, 1982; pp. 4-20, 24-29, 31-32; May 9, 1983; pp. 9-10, July 19, 1983; Rec. p. 1).
On April 7, 1982, petitioner was charged with homicide to which he pleaded not guilty. On December 12, 1983, respondent Sandiganbayan convicted petitioner. It ruled that the shooting and killing of the deceased was
not attended by any justifying circumstance; that the true happenings preceding the shooting belie and militate against self-defense or fulfillment of duty; that at most, petitioner was entitled to the mitigating
circumstance of sufficient provocation or threat, apart from voluntary surrender, but not to total absolution of liability.
Petitioner did not file any motion for reconsideration with respondent Sandiganbayan. Instead, he filed with this Court a petition for review on certiorari on January 30, 1984 alleging that the Sandiganbayan erred (a)
when it failed to consider in favor of petitioner the elements of unlawful aggression and reasonable necessity of the means used to repel it; (b) when it dismissed outright petitioner's theory of self-defense just because
he did not suffer any scratch; and (c) when it convicted petitioner despite the fact that there was doubt as to his guilt, hence no civil damages should be awarded.
The Solicitor General submits that the facts prove the existence of unlawful aggression on the part of the deceased, since it is undisputed that the deceased attacked petitioner twice with a four-inch bladed knife; that
unlawful aggression is clearly manifest since the physical assaults against petitioner placed his life in actual peril (People vs. Sumicad, 56 Phil. 647); that in determining the existence of unlawful aggression, it does not
matter if the attacks have no predictable success; that, moreover, it is not necessary for petitioner to be wounded first to prove the existence of unlawful aggression, it being sufficient that the aggression be attempted so
as to give rise to the right to prevent it (People vs. Batungbacal, 37 Phil. 382; People vs. Hitosis, 55 Phil. 298).
We agree with petitioner and the Solicitor General that the first requisite of the justifying circumstance of self-defense unlawful aggression - is present in the case at bar (Article 11 [l] of the Revised Penal Code). There is
no question that the third requisite - lack of sufficient provocation on the part of the person defending himself - is also present. Petitioner was merely acting in the performance of his duty as a traffic policeman when he
tried to arrest the deceased for violating a traffic regulation. In fact, respondent Sandiganbayan appreciated the victim's sufficient provocation or threat immediately preceding the act sued upon as a mitigating
circumstance together with petitioner's voluntary surrender.
The principal issue is whether or not the second requisite reasonable necessity of the means employed to prevent or repel the unlawful aggression - is present. On this point the Solicitor General agrees with respondent
Sandiganbayan that petitioner did not use reasonable means to repel the attack of the deceased. When the deceased lunged at petitioner the second time, he stumbled and even went past petitioner. At that instant,
petitioner could have just struck at the deceased with his gun, or at worse, aimed his gun at a non-vital part of his body to overcome his resistance to arrest. However, petitioner chose to fire at the back of the deceased,
thus killing him almost instantly. The Solicitor General invokes the ruling in People vs. Oanis (74 Phil. 257, 262), to the effect that a peace officer is never justified in using unnecessary force in effecting arrests or in
treating with wanton violence the arrested person or in resorting to dangerous means when the arrest could be effected otherwise. This doctrine was restated in the Rules of Court thus: "No unnecessary or unreasonable
force shall be used in making an arrest, and the person arrested shall not be subject to any greater restraint than is necessary for his detention. " (Sec. 2 of Rule 109, subsequently Rule 113). It is worthwhile noting that
the rule was made stricter in Sec. 2, Rule 113 of the 1985 Rules on Criminal Procedure thus: "No violence or unnecessary force shall be used in making an arrest . . . "

We agree with the Solicitor General. In the case of People vs. De Jesus, this Court ruled that:
With the deceased shown to be the aggressor as against Yalong, the reasonableness of the means used by Yalong to repel the aggression may however, not be assessed in his favor. The deceased was in
a state of drunkenness, so he was not as dangerous as he would if he had been sober. His aim proved faulty and easily evaded as shown by the fact that Yalong was not hit by the stab attempts blows
directed against him. At best, We can grant incomplete self-defense in his favor, the necessity of the means he used to repel the aggression not appearing to Us clearly reasonable.11 (People vs. De
Jesus, November 19, 1982, 118 SCRA 616, 627)
In the case at bar, petitioner testified as follows:
Q What happened after he stabbed you?
A I moved back and then I drew my gun. I shouted at him, 'don't continue doing that., I will shoot you.'
Q Then what did he do?
A But he did not heed my warning and he continued lunging at me. And maybe because he was somewhat drunk or somewhat high in drugs, he was not steady and he was outbalanced and so, when he made that thrust, he lost his balance in which time I simultaneously shot him." (TSN, pp. 13-14, May 9, 1983)
Under such circumstances, there was no need for petitioner to fire his gun at the deceased.
The penalty prescribed by law for homicide is reclusion temporal Considering the fact that two out of the three requisites for the justifying circumstance of self-defense are present, Article 69 of the Revised Penal Code
is applicable and a penalty lower by two degrees may be imposed. The mitigating circumstance of sufficient provocation on the part of the deceased may no longer be considered because it is deemed absorbed by his
unlawful aggression. But the mitigating circumstance of voluntary surrender may still be considered. Two degrees lower than reclusion temporal is prison correccional
Applying the Indeterminate Sentence Law and in accordance with the recommendation of the Solicitor General, petitioner is sentenced to suffer imprisonment for a minimum period of six months of arresto mayor and
a maximum period of two years of prision correccional.
WHEREFORE, with the modification of the penalty as above provided, the decision appealed from is affirmed,
SO ORDERED.
EN BANC

[G.R. No. 135981. January 15, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. MARIVIC GENOSA, appellant.

DECISION
PANGANIBAN, J.:
Admitting she killed her husband, appellant anchors her prayer for acquittal on a novel theory -- the battered woman syndrome (BWS), which allegedly constitutes self-defense. Under the proven facts, however,
she is not entitled to complete exoneration because there was no unlawful aggression -- no immediate and unexpected attack on her by her batterer-husband at the time she shot him.
Absent unlawful aggression, there can be no self-defense, complete or incomplete.
But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a form of cumulative provocation that broke down her psychological resistance and self-control. This psychological paralysis
she suffered diminished her will power, thereby entitling her to the mitigating factor under paragraphs 9 and 10 of Article 13 of the Revised Penal Code.
In addition, appellant should also be credited with the extenuating circumstance of having acted upon an impulse so powerful as to have naturally produced passion and obfuscation. The acute battering she
suffered that fatal night in the hands of her batterer-spouse, in spite of the fact that she was eight months pregnant with their child, overwhelmed her and put her in the aforesaid emotional and mental state, which
overcame her reason and impelled her to vindicate her life and her unborn childs.
Considering the presence of these two mitigating circumstances arising from BWS, as well as the benefits of the Indeterminate Sentence Law, she may now apply for and be released from custody on parole,
because she has already served the minimum period of her penalty while under detention during the pendency of this case.

The Case
For automatic review before this Court is the September 25, 1998 Decision[1] of the Regional Trial Court (RTC) of Ormoc City (Branch 35) in Criminal Case No. 5016-0, finding Marivic Genosa guilty beyond
reasonable doubt of parricide. The decretal portion of the Decision reads:
WHEREFORE, after all the foregoing being duly considered, the Court finds the accused, Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of Parricide as provided under Article 246 of the
Revised Penal Code as restored by Sec. 5, RA No. 7659, and after finding treachery as a generic aggravating circumstance and none of mitigating circumstance, hereby sentences the accused with the penalty of DEATH.
The Court likewise penalizes the accused to pay the heirs of the deceased the sum of fifty thousand pesos (P50,000.00), Philippine currency as indemnity and another sum of fifty thousand pesos (P50,000.00),
Philippine currency as moral damages.[2]
The Information[3] charged appellant with parricide as follows:
That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of Isabel, Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to
kill, with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault, hit and wound one BEN GENOSA, her legitimate husband, with the use of a hard deadly weapon,
which the accused had provided herself for the purpose, [causing] the following wounds, to wit:
Cadaveric spasm.
Body on the 2nd stage of decomposition.
Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes protruding from its sockets and tongue slightly protrudes out of the mouth.

Fracture, open, depressed, circular located at the occipital bone of the head, resulting [in] laceration of the brain, spontaneous rupture of the blood vessels on the posterior surface of the brain, laceration of
the dura and meningeal vessels producing severe intracranial hemorrhage.
Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of the epidermis.
Abdomen distended w/ gas. Trunk bloated.
which caused his death.[4]
With the assistance of her counsel,[5] appellant pleaded not guilty during her arraignment on March 3, 1997.[6] In due course, she was tried for and convicted of parricide.

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) summarizes the prosecutions version of the facts in this wise:
Appellant and Ben Genosa were united in marriage on November 19, 1983 in Ormoc City. Thereafter, they lived with the parents of Ben in their house at Isabel, Leyte. For a time, Bens younger brother, Alex, and his
wife lived with them too. Sometime in 1995, however, appellant and Ben rented from Steban Matiga a house at Barangay Bilwang, Isabel, Leyte where they lived with their two children, namely: John Marben and Earl
Pierre.
On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving their salary. They each had two (2) bottles of beer before heading home. Arturo would pass Bens house before reaching his. When
they arrived at the house of Ben, he found out that appellant had gone to Isabel, Leyte to look for him. Ben went inside his house, while Arturo went to a store across it, waiting until 9:00 in the evening for
the masiaorunner to place a bet. Arturo did not see appellant arrive but on his way home passing the side of the Genosas rented house, he heard her say I wont hesitate to kill you to which Ben replied Why kill me
when I am innocent? That was the last time Arturo saw Ben alive. Arturo also noticed that since then, the Genosas rented house appeared uninhabited and was always closed.
On November 16, 1995, appellant asked Erlinda Paderog, her close friend and neighbor living about fifty (50) meters from her house, to look after her pig because she was going to Cebu for a pregnancy check-up.
Appellant likewise asked Erlinda to sell her motorcycle to their neighbor Ronnie Dayandayan who unfortunately had no money to buy it.
That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus going to Ormoc when he saw appellant going out of their house with her two kids in tow, each one carrying a bag, locking the gate and
taking her children to the waiting area where he was. Joseph lived about fifty (50) meters behind the Genosas rented house. Joseph, appellant and her children rode the same bus to Ormoc. They had no conversation
as Joseph noticed that appellant did not want to talk to him.
On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor emanating from his house being rented by Ben and appellant. Steban went there to find out the cause of the stench but the house
was locked from the inside. Since he did not have a duplicate key with him, Steban destroyed the gate padlock with a borrowed steel saw. He was able to get inside through the kitchen door but only after destroying a
window to reach a hook that locked it. Alone, Steban went inside the unlocked bedroom where the offensive smell was coming from. There, he saw the lifeless body of Ben lying on his side on the bed covered with a
blanket. He was only in his briefs with injuries at the back of his head. Seeing this, Steban went out of the house and sent word to the mother of Ben about his sons misfortune. Later that day, Iluminada Genosa, the
mother of Ben, identified the dead body as that of [her] son.

Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at the police station at Isabel, Leyte, received a report regarding the foul smell at the Genosas rented house. Together with SPO1
Millares, SPO1 Colon, and Dr. Refelina Cerillo, SPO3 Acodesin proceeded to the house and went inside the bedroom where they found the dead body of Ben lying on his side wrapped with a bedsheet. There was blood
at the nape of Ben who only had his briefs on. SPO3 Acodesin found in one corner at the side of an aparador a metal pipe about two (2) meters from where Ben was, leaning against a wall. The metal pipe measured
three (3) feet and six (6) inches long with a diameter of one and half (1 1/2) inches. It had an open end without a stop valve with a red stain at one end. The bedroom was not in disarray.
About 10:00 that same morning, the cadaver of Ben, because of its stench, had to be taken outside at the back of the house before the postmortem examination was conducted by Dr. Cerillo in the presence of the
police. A municipal health officer at Isabel, Leyte responsible for medico-legal cases, Dr. Cerillo found that Ben had been dead for two to three days and his body was already decomposing. The postmortem
examination of Dr. Cerillo yielded the findings quoted in the Information for parricide later filed against appellant. She concluded that the cause of Bens death was cardiopulmonary arrest secondary to severe
intracranial hemorrhage due to a depressed fracture of the occipital [bone].
Appellant admitted killing Ben. She testified that going home after work on November 15, 1995, she got worried that her husband who was not home yet might have gone gambling since it was a payday. With her
cousin Ecel Arao, appellant went to look for Ben at the marketplace and taverns at Isabel, Leyte but did not find him there. They found Ben drunk upon their return at the Genosas house. Ecel went home despite
appellants request for her to sleep in their house.
Then, Ben purportedly nagged appellant for following him, even challenging her to a fight. She allegedly ignored him and instead attended to their children who were doing their homework. Apparently disappointed
with her reaction, Ben switched off the light and, with the use of a chopping knife, cut the television antenna or wire to keep her from watching television. According to appellant, Ben was about to attack her so she ran
to the bedroom, but he got hold of her hands and whirled her around. She fell on the side of the bed and screamed for help. Ben left. At this point, appellant packed his clothes because she wanted him to leave. Seeing
his packed clothes upon his return home, Ben allegedly flew into a rage, dragged appellant outside of the bedroom towards a drawer holding her by the neck, and told her You might as well be killed so nobody would
nag me. Appellant testified that she was aware that there was a gun inside the drawer but since Ben did not have the key to it, he got a three-inch long blade cutter from his wallet. She however, smashed the arm of
Ben with a pipe, causing him to drop the blade and his wallet. Appellant then smashed Ben at his nape with the pipe as he was about to pick up the blade and his wallet. She thereafter ran inside the bedroom.
Appellant, however, insisted that she ended the life of her husband by shooting him. She supposedly distorted the drawer where the gun was and shot Ben. He did not die on the spot, though, but in the
bedroom.[7](Citations omitted)

Version of the Defense

Appellant relates her version of the facts in this manner:
1.
Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to her marriage, Marivic had graduated from San Carlos, Cebu City, obtaining a degree of Bachelor of Science in Business
Administration, and was working, at the time of her husbands death, as a Secretary to the Port Managers in Ormoc City. The couple had three (3) children: John Marben, Earl Pierre and Marie Bianca.
2.
Marivic and Ben had known each other since elementary school; they were neighbors in Bilwang; they were classmates; and they were third degree cousins. Both sets of parents were against their relationship,
but Ben was persistent and tried to stop other suitors from courting her. Their closeness developed as he was her constant partner at fiestas.
3.
After their marriage, they lived first in the home of Bens parents, together with Bens brother, Alex, in Isabel, Leyte. In the first year of marriage, Marivic and Ben lived happily. But apparently, soon
thereafter, the couple would quarrel often and their fights would become violent.
4.
Bens brother, Alex, testified for the prosecution that he could not remember when Ben and Marivic married. He said that when Ben and Marivic quarreled, generally when Ben would come home drunk,
Marivic would inflict injuries on him. He said that in one incident in 1993 he saw Marivic holding a kitchen knife after Ben had shouted for help as his left hand was covered with blood. Marivic left the house but after a

week, she returned apparently having asked for Bens forgiveness. In another incident in May 22, 1994, early morning, Alex and his father apparently rushed to Bens aid again and saw blood from Bens forehead and
Marivic holding an empty bottle. Ben and Marivic reconciled after Marivic had apparently again asked for Bens forgiveness.
Mrs. Iluminada Genosa, Marivics mother-in-law, testified too, saying that Ben and Marivic married in 1986 or 1985 more or less here in Fatima, Ormoc City. She said as the marriage went along, Marivic became
already very demanding. Mrs. Iluminada Genosa said that after the birth of Marivics two sons, there were three (3) misunderstandings. The first was when Marivic stabbed Ben with a table knife through his left arm;
the second incident was on November 15, 1994, when Marivic struck Ben on the forehead using a sharp instrument until the eye was also affected. It was wounded and also the ear and her husband went to Ben to
help; and the third incident was in 1995 when the couple had already transferred to the house in Bilwang and she saw that Bens hand was plastered as the bone cracked.
Both mother and son claimed they brought Ben to a Pasar clinic for medical intervention.
5.
Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 After we collected our salary, we went to the cock-fighting place of ISCO. They stayed there for three (3) hours, after which they went
to Uniloks and drank beer allegedly only two (2) bottles each. After drinking they bought barbeque and went to the Genosa residence. Marivic was not there. He stayed a while talking with Ben, after which he went
across the road to wait for the runner and the usher of the masiao game because during that time, the hearing on masiao numbers was rampant. I was waiting for the ushers and runners so that I can place my bet. On
his way home at about 9:00 in the evening, he heard the Genosas arguing. They were quarreling loudly. Outside their house was one Fredo who is used by Ben to feed his fighting cocks. Basobas testimony on the root
of the quarrel, conveniently overheard by him was Marivic saying I will never hesitate to kill you, whilst Ben replied Why kill me when I am innocent. Basobas thought they were joking.
He did not hear them quarreling while he was across the road from the Genosa residence. Basobas admitted that he and Ben were always at the cockpits every Saturday and Sunday. He claims that he once told Ben
before when he was stricken with a bottle by Marivic Genosa that he should leave her and that Ben would always take her back after she would leave him so many times.
Basobas could not remember when Marivic had hit Ben, but it was a long time that they had been quarreling. He said Ben even had a wound on the right forehead. He had known the couple for only one (1) year.
6.
Marivic testified that after the first year of marriage, Ben became cruel to her and was a habitual drinker. She said he provoked her, he would slap her, sometimes he would pin her down on the bed, and
sometimes beat her.
These incidents happened several times and she would often run home to her parents, but Ben would follow her and seek her out, promising to change and would ask for her forgiveness. She said after she would be
beaten, she would seek medical help from Dr. Dino Caing, Dr. Lucero and Dra. Cerillo. These doctors would enter the injuries inflicted upon her by Ben into their reports. Marivic said Ben would beat her or quarrel
with her every time he was drunk, at least three times a week.
7.

In her defense, witnesses who were not so closely related to Marivic, testified as to the abuse and violence she received at the hands of Ben.

7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, testified that on November 15, 1995, he overheard a quarrel between Ben and Marivic. Marivic was shouting for help and through the open
jalousies, he saw the spouses grappling with each other. Ben had Marivic in a choke hold. He did not do anything, but had come voluntarily to testify. (Please note this was the same night as that testified to by
Arturo Busabos.[8])
7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe Barrientos, testified that he heard his neighbor Marivic shouting on the night of November 15, 1995. He peeped through the window of his hut
which is located beside the Genosa house and saw the spouses grappling with each other then Ben Genosa was holding with his both hands the neck of the accused, Marivic Genosa. He said after a while, Marivic was
able to extricate he[r]self and enter the room of the children. After that, he went back to work as he was to go fishing that evening. He returned at 8:00 the next morning. (Again, please note that this was the same
night as that testified to by Arturo Basobas).
7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were living in Isabel, Leyte. His house was located about fifty (50) meters from theirs. Marivic is his niece and he knew them to be living
together for 13 or 14 years. He said the couple was always quarreling. Marivic confided in him that Ben would pawn items and then would use the money to gamble. One time, he went to their house and they were

quarreling. Ben was so angry, but would be pacified if somebody would come. He testified that while Ben was alive he used to gamble and when he became drunk, he would go to our house and he will say, Teody
because that was what he used to call me, mokimas ta, which means lets go and look for a whore. Mr. Sarabia further testified that Ben would box his wife and I would see bruises and one time she ran to me, I
noticed a wound (the witness pointed to his right breast) as according to her a knife was stricken to her. Mr. Sarabia also said that once he saw Ben had been injured too. He said he voluntarily testified only that
morning.
7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified that in the afternoon of November 15, 1995, Marivic went to her house and asked her help to look for Ben. They searched in the market
place, several taverns and some other places, but could not find him. She accompanied Marivic home. Marivic wanted her to sleep with her in the Genosa house because she might be battered by her husband. When
they got to the Genosa house at about 7:00 in the evening, Miss Arano said that her husband was already there and was drunk. Miss Arano knew he was drunk because of his staggering walking and I can also detect
his face. Marivic entered the house and she heard them quarrel noisily. (Again, please note that this is the same night as that testified to by Arturo Basobas) Miss Arano testified that this was not the first time Marivic
had asked her to sleep in the house as Marivic would be afraid every time her husband would come home drunk. At one time when she did sleep over, she was awakened at 10:00 in the evening when Ben arrived
because the couple were very noisy in the sala and I had heard something was broken like a vase. She said Marivic ran into her room and they locked the door. When Ben couldnt get in he got a chair and a knife and
showed us the knife through the window grill and he scared us. She said that Marivic shouted for help, but no one came. On cross-examination, she said that when she left Marivics house on November 15, 1995, the
couple were still quarreling.
7.5. Dr. Dino Caing, a physician testified that he and Marivic were co-employees at PHILPHOS, Isabel, Leyte. Marivic was his patient many times and had also received treatment from other doctors. Dr. Caing
testified that from July 6, 1989 until November 9, 1995, there were six (6) episodes of physical injuries inflicted upon Marivic. These injuries were reported in his Out-Patient Chart at the PHILPHOS Hospital. The
prosecution admitted the qualifications of Dr. Caing and considered him an expert witness.
xxx

xxx

xxx

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

xxx

xxx

Marivic said she did not provoke her husband when she got home that night it was her husband who began the provocation. Marivic said she was frightened that her husband would hurt her and she wanted to make
sure she would deliver her baby safely. In fact, Marivic had to be admitted later at the Rizal Medical Centre as she was suffering from eclampsia and hypertension, and the baby was born prematurely on December 1,
1995.
Marivic testified that during her marriage she had tried to leave her husband at least five (5) times, but that Ben would always follow her and they would reconcile. Marivic said that the reason why Ben was violent and
abusive towards her that night was because he was crazy about his recent girlfriend, Lulu x x x Rubillos.
On cross-examination, Marivic insisted she shot Ben with a gun; she said that he died in the bedroom; that their quarrels could be heard by anyone passing their house; that Basobas lied in his testimony; that she left
for Manila the next day, November 16, 1995; that she did not bother anyone in Manila, rented herself a room, and got herself a job as a field researcher under the alias Marvelous Isidro; she did not tell anyone that she
was leaving Leyte, she just wanted to have a safe delivery of her baby; and that she was arrested in San Pablo, Laguna.

Answering questions from the Court, Marivic said that she threw the gun away; that she did not know what happened to the pipe she used to smash him once; that she was wounded by Ben on her wrist with the bolo;
and that two (2) hours after she was whirled by Ben, he kicked her ass and dragged her towards the drawer when he saw that she had packed his things.
9.
The body of Ben Genosa was found on November 18, 1995 after an investigation was made of the foul odor emitting from the Genosa residence. This fact was testified to by all the prosecution witnesses and
some defense witnesses during the trial.
10.
Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel, Leyte at the time of the incident, and among her responsibilities as such was to take charge of all medico-legal cases, such as the
examination of cadavers and the autopsy of cadavers. Dra. Cerillo is not a forensic pathologist. She merely took the medical board exams and passed in 1986. She was called by the police to go to the Genosa residence
and when she got there, she saw some police officer and neighbor around. She saw Ben Genosa, covered by a blanket, lying in a semi-prone position with his back to the door. He was wearing only a brief.
xxx

xxx

xxx

Dra. Cerillo said that there is only one injury and that is the injury involving the skeletal area of the head which she described as a fracture. And that based on her examination, Ben had been dead 2 or 3 days. Dra.
Cerillo did not testify as to what caused his death.
Dra. Cerillo was not cross-examined by defense counsel.
11.
The Information, dated November 14, 1996, filed against Marivic Genosa charged her with the crime of PARRICIDE committed with intent to kill, with treachery and evidence premeditation, x x x wilfully,
unlawfully and feloniously attack, assault, hit and wound x x x her legitimate husband, with the use of a hard deadly weapon x x x which caused his death.
12.

Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and 23 September 1997, 12 November 1997, 15 and 16 December 1997, 22 May 1998, and 5 and 6 August 1998.

13.
On 23 September 1998, or only fifty (50) days from the day of the last trial date, the Hon. Fortunito L. Madrona, Presiding Judge, RTC-Branch 35, Ormoc City, rendered a JUDGMENT finding Marivic guilty
beyond reasonable doubt of the crime of parricide, and further found treachery as an aggravating circumstance, thus sentencing her to the ultimate penalty of DEATH.
14.
The case was elevated to this Honorable Court upon automatic review and, under date of 24 January 2000, Marivics trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a Motion to Withdraw as counsel,
attaching thereto, as a precautionary measure, two (2) drafts of Appellants Briefs he had prepared for Marivic which, for reasons of her own, were not conformed to by her.
The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the entry of appearance of undersigned counsel.
15.
Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20 January 2000, to the Chief Justice, coursing the same through Atty. Teresita G. Dimaisip, Deputy Clerk of Court of Chief Judicial
Records Office, wherein she submitted her Brief without counsels to the Court.
This letter was stamp-received by the Honorable Court on 4 February 2000.
16.
In the meantime, under date of 17 February 2000, and stamp-received by the Honorable Court on 19 February 2000, undersigned counsel filed an URGENT OMNIBUS MOTION praying that the Honorable
Court allow the exhumation of Ben Genosa and the re-examination of the cause of his death; allow the examination of Marivic Genosa by qualified psychologists and psychiatrists to determine her state of mind at the
time she killed her husband; and finally, to allow a partial re-opening of the case a quo to take the testimony of said psychologists and psychiatrists.

Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then the only qualified forensic pathologist in the country, who opined that the description of the death wound (as culled from the postmortem findings, Exhibit A) is more akin to a gunshot wound than a beating with a lead pipe.
17.
In a RESOLUTION dated 29 September 2000, the Honorable Court partly granted Marivics URGENT OMNIBUS MOTION and remanded the case to the trial court for the reception of expert psychological
and/or psychiatric opinion on the battered woman syndrome plea, within ninety (90) days from notice, and, thereafter to forthwith report to this Court the proceedings taken, together with the copies of the TSN and
relevant documentary evidence, if any, submitted.
18.

On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the Hon. Fortunito L. Madrona, RTC-Branch 35, Ormoc City.

Immediately before Dra. Dayan was sworn, the Court a quo asked if she had interviewed Marivic Genosa. Dra. Dayan informed the Court that interviews were done at the Penal Institution in 1999, but that the clinical
interviews and psychological assessment were done at her clinic.
Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years with her own private clinic and connected presently to the De La Salle University as a professor. Before this, she was the Head of the
Psychology Department of the Assumption College; a member of the faculty of Psychology at the Ateneo de Manila University and St. Josephs College; and was the counseling psychologist of the National Defense
College. She has an AB in Psychology from the University of the Philippines, a Master of Arts in Clinical [Counseling], Psychology from the Ateneo, and a PhD from the U.P. She was the past president of the
Psychological Association of the Philippines and is a member of the American Psychological Association. She is the secretary of the International Council of Psychologists from about 68 countries; a member of the
Forensic Psychology Association; and a member of the ASEAN [Counseling] Association. She is actively involved with the Philippine Judicial Academy, recently lecturing on the socio-demographic and psychological
profile of families involved in domestic violence and nullity cases. She was with the Davide Commission doing research about Military Psychology. She has written a book entitled Energy Global Psychology (together
with Drs. Allan Tan and Allan Bernardo). The Genosa case is the first time she has testified as an expert on battered women as this is the first case of that nature.
Dra. Dayan testified that for the research she conducted, on the socio-demographic and psychological profile of families involved in domestic violence, and nullity cases, she looked at about 500 cases over a period of
ten (10) years and discovered that there are lots of variables that cause all of this marital conflicts, from domestic violence to infidelity, to psychiatric disorder.
Dra. Dayan described domestic violence to comprise of a lot of incidents of psychological abuse, verbal abuse, and emotional abuse to physical abuse and also sexual abuse.
xxx

xxx

xxx

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

xxx

xxx

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

xxx

xxx

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

xxx

xxx

Dra. Dayan said Marivic thought of herself as a loving wife and did not even consider filing for nullity or legal separation inspite of the abuses. It was at the time of the tragedy that Marivic then thought of herself as a
victim.
xxx
19.

xxx

xxx

On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed away, appeared and testified before RTC-Branch 35, Ormoc City.

Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the Philippine Board of Psychiatry and a Fellow of the Philippine Psychiatry Association. He was in the practice of psychiatry for thirtyeight (38) years. Prior to being in private practice, he was connected with the Veterans Memorial Medical Centre where he gained his training on psychiatry and neurology. After that, he was called to active duty in the
Armed Forces of the Philippines, assigned to the V. Luna Medical Center for twenty six (26) years. Prior to his retirement from government service, he obtained the rank of Brigadier General. He obtained his medical
degree from the University of Santo Tomas. He was also a member of the World Association of Military Surgeons; the Quezon City Medical Society; the Cagayan Medical Society; and the Philippine Association of
Military Surgeons.
He authored The Comparative Analysis of Nervous Breakdown in the Philippine Military Academy from the Period 1954 1978 which was presented twice in international congresses. He also authored The Mental
Health of the Armed Forces of the Philippines 2000, which was likewise published internationally and locally. He had a medical textbook published on the use of Prasepam on a Parke-Davis grant; was the first to use
Enanthate (siquiline), on an E.R. Squibb grant; and he published the use of the drug Zopiclom in 1985-86.
Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind and neurology deals with the ailment of the brain and spinal cord enlarged. Psychology, on the other hand, is a bachelor degree and
a doctorate degree; while one has to finish medicine to become a specialist in psychiatry.
Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had already encountered a suit involving violent family relations, and testified in a case in 1964. In the Armed Forces of the Philippines,
violent family disputes abound, and he has seen probably ten to twenty thousand cases. In those days, the primordial intention of therapy was reconciliation. As a result of his experience with domestic violence cases,
he became a consultant of the Battered Woman Office in Quezon City under Atty. Nenita Deproza.
As such consultant, he had seen around forty (40) cases of severe domestic violence, where there is physical abuse: such as slapping, pushing, verbal abuse, battering and boxing a woman even to an unconscious state
such that the woman is sometimes confined. The affliction of Post-Traumatic Stress Disorder depends on the vulnerability of the victim. Dr. Pajarillo said that if the victim is not very healthy, perhaps one episode of
violence may induce the disorder; if the psychological stamina and physiologic constitutional stamina of the victim is stronger, it will take more repetitive trauma to precipitate the post-traumatic stress disorder and
this x x x is very dangerous.

In psychiatry, the post-traumatic stress disorder is incorporated under the anxiety neurosis or neurologic anxcietism. It is produced by overwhelming brutality, trauma.
xxx

xxx

xxx

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

xxx

xxx

A woman who suffers battery has a tendency to become neurotic, her emotional tone is unstable, and she is irritable and restless. She tends to become hard-headed and persistent. She has higher sensitivity and her
self-world is damaged.
Dr. Pajarillo said that an abnormal family background relates to an individuals illness, such as the deprivation of the continuous care and love of the parents. As to the batterer, he normally internalizes what is
around him within the environment. And it becomes his own personality. He is very competitive; he is aiming high all the time; he is so macho; he shows his strong faade but in it there are doubts in himself and
prone to act without thinking.
xxx

xxx

xxx

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

xxx

xxx

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

xxx

xxx

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

xxx

xxx

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

xxx

xxx

20.
No rebuttal evidence or testimony was presented by either the private or the public prosecutor. Thus, in accord with the Resolution of this Honorable Court, the records of the partially re-opened trial
a quowere elevated.[9]

Ruling of the Trial Court

Finding the proffered theory of self-defense untenable, the RTC gave credence to the prosecution evidence that appellant had killed the deceased while he was in bed sleeping. Further, the trial court appreciated
the generic aggravating circumstance of treachery, because Ben Genosa was supposedly defenseless when he was killed -- lying in bed asleep when Marivic smashed him with a pipe at the back of his head.
The capital penalty having been imposed, the case was elevated to this Court for automatic review.

Supervening Circumstances
On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this Court allow (1) the exhumation of Ben Genosa and the reexamination of the cause of his death; (2) the examination of appellant
by qualified psychologists and psychiatrists to determine her state of mind at the time she had killed her spouse; and (3) the inclusion of the said experts reports in the records of the case for purposes of the automatic
review or, in the alternative, a partial reopening of the case for the lower court to admit the experts testimonies.
On September 29, 2000, this Court issued a Resolution granting in part appellants Motion, remanding the case to the trial court for the reception of expert psychological and/or psychiatric opinion on the
battered woman syndrome plea; and requiring the lower court to report thereafter to this Court the proceedings taken as well as to submit copies of the TSN and additional evidence, if any.
Acting on the Courts Resolution, the trial judge authorized the examination of Marivic by two clinical psychologists, Drs. Natividad Dayan [10] and Alfredo Pajarillo,[11] supposedly experts on domestic violence.
Their testimonies, along with their documentary evidence, were then presented to and admitted by the lower court before finally being submitted to this Court to form part of the records of the case.[12]

The Issues
Appellant assigns the following alleged errors of the trial court for this Courts consideration:
1.

The trial court gravely erred in promulgating an obviously hasty decision without reflecting on the evidence adduced as to self-defense.

2.

The trial court gravely erred in finding as a fact that Ben and Marivic Genosa were legally married and that she was therefore liable for parricide.

3.

The trial court gravely erred finding the cause of death to be by beating with a pipe.

4.
The trial court gravely erred in ignoring and disregarding evidence adduced from impartial and unbiased witnesses that Ben Genosa was a drunk, a gambler, a womanizer and wife-beater; and further gravely
erred in concluding that Ben Genosa was a battered husband.
5.

The trial court gravely erred in not requiring testimony from the children of Marivic Genosa.

6.

The trial court gravely erred in concluding that Marivics flight to Manila and her subsequent apologies were indicia of guilt, instead of a clear attempt to save the life of her unborn child.

7.

The trial court gravely erred in concluding that there was an aggravating circumstance of treachery.

8.
The trial court gravely erred in refusing to re-evaluate the traditional elements in determining the existence of self-defense and defense of foetus in this case, thereby erroneously convicting Marivic Genosa of
the crime of parricide and condemning her to the ultimate penalty of death.[13]
In the main, the following are the essential legal issues: (1) whether appellant acted in self-defense and in defense of her fetus; and (2) whether treachery attended the killing of Ben Genosa.

The Courts Ruling

The appeal is partly meritorious.

Collateral Factual Issues

The first six assigned errors raised by appellant are factual in nature, if not collateral to the resolution of the principal issues. As consistently held by this Court, the findings of the trial court on the credibility of
witnesses and their testimonies are entitled to a high degree of respect and will not be disturbed on appeal in the absence of any showing that the trial judge gravely abused his discretion or overlooked, misunderstood
or misapplied material facts or circumstances of weight and substance that could affect the outcome of the case.[14]
In appellants first six assigned items, we find no grave abuse of discretion, reversible error or misappreciation of material facts that would reverse or modify the trial courts disposition of the case. In any event,
we will now briefly dispose of these alleged errors of the trial court.
First, we do not agree that the lower court promulgated an obviously hasty decision without reflecting on the evidence adduced as to self-defense. We note that in his 17-page Decision, Judge Fortunito L.
Madrona summarized the testimonies of both the prosecution and the defense witnesses and -- on the basis of those and of the documentary evidence on record -- made his evaluation, findings and conclusions. He
wrote a 3-page discourse assessing the testimony and the self-defense theory of the accused. While she, or even this Court, may not agree with the trial judges conclusions, we cannot peremptorily conclude, absent
substantial evidence, that he failed to reflect on the evidence presented.
Neither do we find the appealed Decision to have been made in an obviously hasty manner. The Information had been filed with the lower court on November 14, 1996. Thereafter, trial began and at least 13
hearings were held for over a year. It took the trial judge about two months from the conclusion of trial to promulgate his judgment. That he conducted the trial and resolved the case with dispatch should not be taken
against him, much less used to condemn him for being unduly hasty. If at all, the dispatch with which he handled the case should be lauded. In any case, we find his actions in substantial compliance with his
constitutional obligation.[15]
Second, the lower court did not err in finding as a fact that Ben Genosa and appellant had been legally married, despite the non-presentation of their marriage contract. In People v. Malabago,[16] this Court held:
The key element in parricide is the relationship of the offender with the victim. In the case of parricide of a spouse, the best proof of the relationship between the accused and the deceased is the marriage certificate. In
the absence of a marriage certificate, however, oral evidence of the fact of marriage may be considered by the trial court if such proof is not objected to.
Two of the prosecution witnesses -- namely, the mother and the brother of appellants deceased spouse -- attested in court that Ben had been married to Marivic.[17] The defense raised no objection to these
testimonies. Moreover, during her direct examination, appellant herself made a judicial admission of her marriage to Ben.[18] Axiomatic is the rule that a judicial admission is conclusive upon the party making it, except
only when there is a showing that (1) the admission was made through a palpable mistake, or (2) no admission was in fact made. [19] Other than merely attacking the non-presentation of the marriage contract, the
defense offered no proof that the admission made by appellant in court as to the fact of her marriage to the deceased was made through a palpable mistake.
Third, under the circumstances of this case, the specific or direct cause of Bens death -- whether by a gunshot or by beating with a pipe -- has no legal consequence. As the Court elucidated in its September 29,
2000 Resolution, [c]onsidering that the appellant has admitted the fact of killing her husband and the acts of hitting his nape with a metal pipe and of shooting him at the back of his head, the Court believes that

exhumation is unnecessary, if not immaterial, to determine which of said acts actually caused the victims death. Determining which of these admitted acts caused the death is not dispositive of the guilt or defense of
appellant.
Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben was a drunk, gambler, womanizer and wife-beater. Until this case came to us for automatic review, appellant had not raised the novel
defense of battered woman syndrome, for which such evidence may have been relevant. Her theory of self-defense was then the crucial issue before the trial court. As will be discussed shortly, the legal requisites of self-defense
under prevailing jurisprudence ostensibly appear inconsistent with the surrounding facts that led to the death of the victim. Hence, his personal character, especially his past behavior, did not constitute vital evidence at the time.
Fifth, the trial court surely committed no error in not requiring testimony from appellants children. As correctly elucidated by the solicitor general, all criminal actions are prosecuted under the direction and
control of the public prosecutor, in whom lies the discretion to determine which witnesses and evidence are necessary to present.[20] As the former further points out, neither the trial court nor the prosecution prevented
appellant from presenting her children as witnesses. Thus, she cannot now fault the lower court for not requiring them to testify.
Finally, merely collateral or corroborative is the matter of whether the flight of Marivic to Manila and her subsequent apologies to her brother-in-law are indicia of her guilt or are attempts to save the life of her
unborn child. Any reversible error as to the trial courts appreciation of these circumstances has little bearing on the final resolution of the case.
First Legal Issue:
Self-Defense and Defense of a Fetus
Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes self-defense and/or defense of her unborn child. When the accused admits killing the victim, it is incumbent upon her to prove any
claimed justifying circumstance by clear and convincing evidence.[21] Well-settled is the rule that in criminal cases, self-defense (and similarly, defense of a stranger or third person) shifts the burden of proof from the
prosecution to the defense.[22]

The Battered Woman Syndrome

In claiming self-defense, appellant raises the novel theory of the battered woman syndrome. While new in Philippine jurisprudence, the concept has been recognized in foreign jurisdictions as a form of selfdefense or, at the least, incomplete self-defense.[23] By appreciating evidence that a victim or defendant is afflicted with the syndrome, foreign courts convey their understanding of the justifiably fearful state of mind of
a person who has been cyclically abused and controlled over a period of time.[24]
A battered woman has been defined as a woman who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without concern
for her rights. Battered women include wives or women in any form of intimate relationship with men. Furthermore, in order to be classified as a battered woman, the couple must go through the battering cycle at
least twice. Any woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation, she is defined as a battered woman.[25]
Battered women exhibit common personality traits, such as low self-esteem, traditional beliefs about the home, the family and the female sex role; emotional dependence upon the dominant male; the tendency to
accept responsibility for the batterers actions; and false hopes that the relationship will improve.[26]
More graphically, the battered woman syndrome is characterized by the so-called cycle of violence,[27] which has three phases: (1) the tension-building phase; (2) the acute battering incident; and (3) the
tranquil, loving (or, at least, nonviolent) phase.[28]
During the tension-building phase, minor battering occurs -- it could be verbal or slight physical abuse or another form of hostile behavior. The woman usually tries to pacify the batterer through a show of
kind, nurturing behavior; or by simply staying out of his way. What actually happens is that she allows herself to be abused in ways that, to her, are comparatively minor. All she wants is to prevent the escalation of the
violence exhibited by the batterer. This wish, however, proves to be double-edged, because her placatory and passive behavior legitimizes his belief that he has the right to abuse her in the first place.
However, the techniques adopted by the woman in her effort to placate him are not usually successful, and the verbal and/or physical abuse worsens. Each partner senses the imminent loss of control and the
growing tension and despair. Exhausted from the persistent stress, the battered woman soon withdraws emotionally. But the more she becomes emotionally unavailable, the more the batterer becomes angry,
oppressive and abusive. Often, at some unpredictable point, the violence spirals out of control and leads to an acute battering incident.[29]

The acute battering incident is said to be characterized by brutality, destructiveness and, sometimes, death. The battered woman deems this incident as unpredictable, yet also inevitable. During this phase,
she has no control; only the batterer may put an end to the violence. Its nature can be as unpredictable as the time of its explosion, and so are his reasons for ending it. The battered woman usually realizes that she
cannot reason with him, and that resistance would only exacerbate her condition.
At this stage, she has a sense of detachment from the attack and the terrible pain, although she may later clearly remember every detail. Her apparent passivity in the face of acute violence may be rationalized
thus: the batterer is almost always much stronger physically, and she knows from her past painful experience that it is futile to fight back. Acute battering incidents are often very savage and out of control, such that
innocent bystanders or intervenors are likely to get hurt.[30]
The final phase of the cycle of violence begins when the acute battering incident ends. During this tranquil period, the couple experience profound relief. On the one hand, the batterer may show a tender and
nurturing behavior towards his partner. He knows that he has been viciously cruel and tries to make up for it, begging for her forgiveness and promising never to beat her again. On the other hand, the battered woman
also tries to convince herself that the battery will never happen again; that her partner will change for the better; and that this good, gentle and caring man is the real person whom she loves.
A battered woman usually believes that she is the sole anchor of the emotional stability of the batterer. Sensing his isolation and despair, she feels responsible for his well-being. The truth, though, is that the
chances of his reforming, or seeking or receiving professional help, are very slim, especially if she remains with him. Generally, only after she leaves him does he seek professional help as a way of getting her back. Yet,
it is in this phase of remorseful reconciliation that she is most thoroughly tormented psychologically.
The illusion of absolute interdependency is well-entrenched in a battered womans psyche. In this phase, she and her batterer are indeed emotionally dependent on each other -- she for his nurturant behavior, he
for her forgiveness. Underneath this miserable cycle of tension, violence and forgiveness, each partner may believe that it is better to die than to be separated. Neither one may really feel independent, capable of
functioning without the other.[31]
History of Abuse
in the Present Case
To show the history of violence inflicted upon appellant, the defense presented several witnesses. She herself described her heart-rending experience as follows:
ATTY. TABUCANON
Q How did you describe your marriage with Ben Genosa?
A

In the first year, I lived with him happily but in the subsequent year he was cruel to me and a behavior of habitual drinker.

Q You said that in the subsequent year of your marriage, your husband was abusive to you and cruel. In what way was this abusive and cruelty manifested to you?
A

He always provoke me in everything, he always slap me and sometimes he pinned me down on the bed and sometimes beat me.

Q How many times did this happen?

A

Several times already.

Q What did you do when these things happen to you?

A

I went away to my mother and I ran to my father and we separate each other.

Q What was the action of Ben Genosa towards you leaving home?
A

He is following me, after that he sought after me.

Q What will happen when he follow you?

He said he changed, he asked for forgiveness and I was convinced and after that I go to him and he said sorry.

Q During those times that you were the recipient of such cruelty and abusive behavior by your husband, were you able to see a doctor?
A

Yes, sir.

Q Who are these doctors?

A

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

xxx

xxx

xxx

xxx

xxx

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

A

Yes, sir.

Q Who inflicted these injuries?

A

Of course my husband.

Q You mean Ben Genosa?

A

Yes, sir.

[Court] /to the witness

Q How frequent was the alleged cruelty that you said?
A

Everytime he got drunk.

Q No, from the time that you said the cruelty or the infliction of injury inflicted on your occurred, after your marriage, from that time on, how frequent was the occurrence?
A

Everytime he got drunk.

Q Is it daily, weekly, monthly or how many times in a month or in a week?

A

Three times a week.

Q Do you mean three times a week he would beat you?

A

Not necessarily that he would beat me but sometimes he will just quarrel me. [32]

Referring to his Out-Patient Chart[33] on Marivic Genosa at the Philphos Hospital, Dr. Dino D. Caing bolstered her foregoing testimony on chronic battery in this manner:
Q So, do you have a summary of those six (6) incidents which are found in the chart of your clinic?
A

Yes, sir.

Q Who prepared the list of six (6) incidents, Doctor?

A

I did.

Q Will you please read the physical findings together with the
A

1.

dates for the record.

May 12, 1990 - physical findings are as follows: Hematoma (R) lower eyelid and redness of eye. Attending physician: Dr. Lucero;

2.

March 10, 1992 - Contusion-Hematoma (L) lower arbital area, pain and contusion (R) breast. Attending physician: Dr. Canora;

3.

March 26, 1993 - Abrasion, Furuncle (L) Axilla;

4.

August 1, 1994 - Pain, mastitis (L) breast, 2 to trauma. Attending physician: Dr. Caing;

5.

April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending physician: Dr. Canora; and

6.

June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion Pregnancy. Attending physician: Dr. Canora.

Q Among the findings, there were two (2) incidents wherein you were the attending physician, is that correct?
A

Yes, sir.

Q Did you actually physical examine the accused?

A

Yes, sir.

Q Now, going to your finding no. 3 where you were the one who attended the patient. What do you mean by abrasion furuncle left axilla?
A

Abrasion is a skin wound usually when it comes in contact with something rough substance if force is applied.

Q What is meant by furuncle axilla?

A

It is secondary of the light infection over the abrasion.

Q What is meant by pain mastitis secondary to trauma?

A

So, in this 4th episode of physical injuries there is an inflammation of left breast. So, [pain] meaning there is tenderness. When your breast is traumatized, there is tenderness pain.

Q So, these are objective physical injuries. Doctor?

xxx

xxx

xxx

Q Were you able to talk with the patient?

A

Yes, sir.

Q What did she tell you?

A

As a doctor-patient relationship, we need to know the cause of these injuries. And she told me that it was done to her by her husband.

Q You mean, Ben Genosa?

Yes, sir.
xxx

xxx

xxx

ATTY. TABUCANON:
Q By the way Doctor, were you able to physical examine the accused sometime in the month of November, 1995 when this incident happened?
A

As per record, yes.

Q What was the date?

A

It was on November 6, 1995.

Q So, did you actually see the accused physically?

A

Yes, sir.

Q On November 6, 1995, will you please tell this Honorable Court, was the patient pregnant?
A

Yes, sir.

Q Being a doctor, can you more engage at what stage of pregnancy was she?
A

Eight (8) months pregnant.

Q So in other words, it was an advance stage of pregnancy?

A

Yes, sir.

Q What was your November 6, 1995 examination, was it an examination about her pregnancy or for some other findings?
A

No, she was admitted for hypertension headache which complicates her pregnancy.

Q When you said admitted, meaning she was confined?

A

Yes, sir.

Q For how many days?

A

One day.

Q Where?
A

At PHILPHOS Hospital.
xxx

xxx

xxx

Q Lets go back to the clinical history of Marivic Genosa. You said that you were able to examine her personally on November 6, 1995 and she was 8 months pregnant.

What is this all about?

A

Because she has this problem of tension headache secondary to hypertension and I think I have a record here, also the same period from 1989 to 1995, she had a consultation for twenty-three (23) times.

Q For what?
A

Tension headache.

Q Can we say that specially during the latter consultation, that the patient had hypertension?
A

The patient definitely had hypertension. It was refractory to our treatment. She does not response when the medication was given to her, because tension headache is more or less stress related and
emotional in nature.

Q What did you deduce of tension headache when you said is emotional in nature?
A

From what I deduced as part of our physical examination of the patient is the family history in line of giving the root cause of what is causing this disease. So, from the moment you ask to the patient all
comes from the domestic problem.

Q You mean problem in her household?

A

Probably.

Q Can family trouble cause elevation of blood pressure, Doctor?

A

Yes, if it is emotionally related and stressful it can cause increases in hypertension which is unfortunately does not response to the medication.

Q In November 6, 1995, the date of the incident, did you take the blood pressure of the accused?
A

On November 6, 1995 consultation, the blood pressure was 180/120.

Q Is this considered hypertension?

A

Yes, sir, severe.

Q Considering that she was 8 months pregnant, you mean this is dangerous level of blood pressure?
A

It was dangerous to the child or to the fetus. [34]

Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in Isabel, Leyte, testified that he had seen the couple quarreling several times; and that on some occasions Marivic would run to him
with bruises, confiding that the injuries were inflicted upon her by Ben.[35]
Ecel Arano also testified[36] that for a number of times she had been asked by Marivic to sleep at the Genosa house, because the latter feared that Ben would come home drunk and hurt her. On one occasion that
Ecel did sleep over, she was awakened about ten oclock at night, because the couple were very noisy and I heard something was broken like a vase. Then Marivic came running into Ecels room and locked the door.
Ben showed up by the window grill atop a chair, scaring them with a knife.
On the afternoon of November 15, 1995, Marivic again asked her help -- this time to find Ben -- but they were unable to. They returned to the Genosa home, where they found him already drunk. Again afraid that
he might hurt her, Marivic asked her to sleep at their house. Seeing his state of drunkenness, Ecel hesitated; and when she heard the couple start arguing, she decided to leave.
On that same night that culminated in the death of Ben Genosa, at least three other witnesses saw or heard the couple quarreling.[37] Marivic relates in detail the following backdrop of the fateful night when life
was snuffed out of him, showing in the process a vivid picture of his cruelty towards her:
ATTY. TABUCANON:

Q Please tell this Court, can you recall the incident in November 15, 1995 in the evening?
A

Whole morning and in the afternoon, I was in the office working then after office hours, I boarded the service bus and went to Bilwang. When I reached Bilwang, I immediately asked my son, where was
his father, then my second child said, he was not home yet. I was worried because that was payday, I was anticipating that he was gambling. So while waiting for him, my eldest son arrived from
school, I prepared dinner for my children.

Q This is evening of November 15, 1995?

A

Yes, sir.

Q What time did Ben Genosa arrive?

A

When he arrived, I was not there, I was in Isabel looking for him.

Q So when he arrived you were in Isabel looking for him?

A

Yes, sir.

Q Did you come back to your house?

A

Yes, sir.

Q By the way, where was your conjugal residence situated this time?
A

Bilwang.

Q Is this your house or you are renting?

A

Renting.

Q What time were you able to come back in your residence at Bilwang?
A

I went back around almost 8:00 oclock.

Q What happened when you arrived in your residence?

A

When I arrived home with my cousin Ecel whom I requested to sleep with me at that time because I had fears that he was again drunk and I was worried that he would again beat me so I requested my
cousin to sleep with me, but she resisted because she had fears that the same thing will happen again last year.

Q Who was this cousin of yours who you requested to sleep with you?
A

Ecel Arao, the one who testified.

Q Did Ecel sleep with you in your house on that evening?

A

No, because she expressed fears, she said her father would not allow her because of Ben.

Q During this period November 15, 1995, were you pregnant?

A

Yes, 8 months.

Q How advance was your pregnancy?

Eight (8) months.

Q Was the baby subsequently born?

A

Yes, sir.

Q Whats the name of the baby you were carrying at that time?
A

Marie Bianca.

Q What time were you able to meet personally your husband?

A

Yes, sir.

Q What time?
A

When I arrived home, he was there already in his usual behavior.

Q Will you tell this Court what was his disposition?

A

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

Q What was he yelling all about?

A

His usual attitude when he got drunk.

Q You said that when you arrived, he was drunk and yelling at you? What else did he do if any?
A

He is nagging at me for following him and he dared me to quarrel him.

Q What was the cause of his nagging or quarreling at you if you know?
A

He was angry at me because I was following x x x him, looking for him. I was just worried he might be overly drunk and he would beat me again.

Q You said that he was yelling at you, what else, did he do to you if any?
A

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

Q What did he do with the bolo?

A

He cut the antenna wire to keep me from watching T.V.

Q What else happened after he cut the wire?

A

He switch off the light and the children were shouting because they were scared and he was already holding the bolo.

Q How do you described this bolo?

A

1 1/2 feet.

Q What was the bolo used for usually?

For chopping meat.

Q You said the children were scared, what else happened as Ben was carrying that bolo?
A

He was about to attack me so I run to the room.

Q What do you mean that he was about to attack you?

A

When I attempt to run he held my hands and he whirled me and I fell to the bedside.

Q So when he whirled you, what happened to you?

A

I screamed for help and then he left.

Q You said earlier that he whirled you and you fell on the bedside?
A

Yes, sir.

Q You screamed for help and he left, do you know where he was going?
A

Outside perhaps to drink more.

Q When he left what did you do in that particular time?

A

I packed all his clothes.

Q What was your reason in packing his clothes?

A

I wanted him to leave us.

Q During this time, where were your children, what were their reactions?
A

After a couple of hours, he went back again and he got angry with me for packing his clothes, then he dragged me again of the bedroom holding my neck.

Q You said that when Ben came back to your house, he dragged you? How did he drag you?
COURT INTERPRETER:
The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)
A

And he dragged me towards the door backward.

ATTY. TABUCANON:
Q Where did he bring you?
A

Outside the bedroom and he wanted to get something and then he kept on shouting at me that you might as well be killed so there will be nobody to nag me.

Q So you said that he dragged you towards the drawer?

A

Yes, sir.

Q What is there in the drawer?

I was aware that it was a gun.

COURT INTERPRETER:
(At this juncture the witness started crying).
ATTY. TABUCANON:
Q Were you actually brought to the drawer?
A

Yes, sir.

Q What happened when you were brought to that drawer?

A

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

COURT INTERPRETER:
(The witness at this juncture is crying intensely).
xxx

xxx

xxx

ATTY. TABUCANON:
Q Talking of drawer, is this drawer outside your room?
A

Outside.

Q In what part of the house?

A

Dining.

Q Where were the children during that time?

A

My children were already asleep.

Q You mean they were inside the room?

A

Yes, sir.

Q You said that he dropped the blade, for the record will you please describe this blade about 3 inches long, how does it look like?
A

Three (3) inches long and 1/2 inch wide.

Q Is it a flexible blade?
A

Its a cutter.

Q How do you describe the blade, is it sharp both edges?

A

Yes, because he once used it to me.

Q How did he do it?

A

He wanted to cut my throat.

Q With the same blade?

A

Yes, sir, that was the object used when he intimidate me. [38]

In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert witness to assist it in understanding the psyche of a battered person. She had met with Marivic Genosa for five sessions totaling
about seventeen hours. Based on their talks, the former briefly related the latters ordeal to the court a quo as follows:
Q: What can you say, that you found Marivic as a battered wife? Could you in laymans term describe to this Court what her life was like as said to you?
A: What I remember happened then was it was more than ten years, that she was suffering emotional anguish. There were a lot of instances of abuses, to emotional abuse, to verbal abuse and to physical
abuse. The husband had a very meager income, she was the one who was practically the bread earner of the family. The husband was involved in a lot of vices, going out with barkadas, drinking, even
womanizing being involved in cockfight and going home very angry and which will trigger a lot of physical abuse. She also had the experience a lot of taunting from the husband for the reason that the
husband even accused her of infidelity, the husband was saying that the child she was carrying was not his own. So she was very angry, she was at the same time very depressed because she was also
aware, almost like living in purgatory or even hell when it was happening day in and day out. [39]
In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but wittingly or unwittingly put forward, additional supporting evidence as shown below:
Q In your first encounter with the appellant in this case in 1999, where you talked to her about three hours, what was the most relevant information did you gather?
A

The most relevant information was the tragedy that happened. The most important information were escalating abuses that she had experienced during her marital life.

Q Before you met her in 1999 for three hours, we presume that you already knew of the facts of the case or at least you have substantial knowledge of the facts of the case?
A

I believe I had an idea of the case, but I do not know whether I can consider them as substantial.
xxx

xxx

xxx

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

I also heard that from her?

Q You heard that from her?

A

Yes, sir.

Q Did you ask for a complete example who are the relatives of her husband that were fond of battering their wives?
A

What I remember that there were brothers of her husband who are also battering their wives.

Q Did she not inform you that there was an instance that she stayed in a hotel in Ormoc where her husband followed her and battered [her] several times in that room?
A

She told me about that.

Q Did she inform you in what hotel in Ormoc?

A

Sir, I could not remember but I was told that she was battered in that room.

Q Several times in that room?

A

Yes, sir. What I remember was that there is no problem about being battered, it really happened.

Q Being an expert witness, our jurisprudence is not complete on saying this matter. I think that is the first time that we have this in the Philippines, what is your opinion?
A

Sir, my opinion is, she is really a battered wife and in this kind happened, it was really a self-defense. I also believe that there had been provocation and I also believe that she became a disordered
person. She had to suffer anxiety reaction because of all the battering that happened and so she became an abnormal person who had lost shes not during the time and that is why it happened because
of all the physical battering, emotional battering, all the psychological abuses that she had experienced from her husband.

Q I do believe that she is a battered wife. Was she extremely battered?

A

Sir, it is an extreme form of battering. Yes.[40]

Parenthetically, the credibility of appellant was demonstrated as follows:

Q And you also said that you administered [the] objective personality test, what x x x [is this] all about?
A

The objective personality test is the Millon Clinical Multiaxial Inventory. The purpose of that test is to find out about the lying prone[ne]ss of the person.

Q What do you mean by that?

A

Meaning, am I dealing with a client who is telling me the truth, or is she someone who can exaggerate or x x x [will] tell a lie[?]

Q And what did you discover on the basis of this objective personality test?
A

She was a person who passed the honesty test. Meaning she is a person that I can trust. That the data that Im gathering from her are the truth.[41]

The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on his Psychiatric Report, [42] which was based on his interview and examination of Marivic Genosa. The Report said that during
the first three years of her marriage to Ben, everything looked good -- the atmosphere was fine, normal and happy -- until Ben started to be attracted to other girls and was also enticed in[to] gambling[,] especially
cockfighting. x x x. At the same time Ben was often joining his barkada in drinking sprees.
The drinking sprees of Ben greatly changed the attitude he showed toward his family, particularly to his wife. The Report continued: At first, it was verbal and emotional abuses but as time passed, he became
physically abusive. Marivic claimed that the viciousness of her husband was progressive every time he got drunk. It was a painful ordeal Marivic had to anticipate whenever she suspected that her husband went for a
drinking [spree]. They had been married for twelve years[;] and practically more than eight years, she was battered and maltreated relentlessly and mercilessly by her husband whenever he was drunk.
Marivic sought the help of her mother-in-law, but her efforts were in vain. Further quoting from the Report, [s]he also sought the advice and help of close relatives and well-meaning friends in spite of her feeling
ashamed of what was happening to her. But incessant battering became more and more frequent and more severe. x x x.[43]
From the totality of evidence presented, there is indeed no doubt in the Courts mind that Appellant Marivic Genosa was a severely abused person.

Effect of Battery on Appellant

Because of the recurring cycles of violence experienced by the abused woman, her state of mind metamorphoses. In determining her state of mind, we cannot rely merely on the judgment of an ordinary,
reasonable person who is evaluating the events immediately surrounding the incident. A Canadian court has aptly pointed out that expert evidence on the psychological effect of battering on wives and common law
partners are both relevant and necessary. How can the mental state of the appellant be appreciated without it? The average member of the public may ask: Why would a woman put up with this kind of treatment?
Why should she continue to live with such a man? How could she love a partner who beat her to the point of requiring hospitalization? We would expect the woman to pack her bags and go. Where is her self-respect?
Why does she not cut loose and make a new life for herself? Such is the reaction of the average person confronted with the so-called battered wife syndrome.[44]
To understand the syndrome properly, however, ones viewpoint should not be drawn from that of an ordinary, reasonable person. What goes on in the mind of a person who has been subjected to repeated, severe
beatings may not be consistent with -- nay, comprehensible to -- those who have not been through a similar experience. Expert opinion is essential to clarify and refute common myths and misconceptions about
battered women.[45]
The theory of BWS formulated by Lenore Walker, as well as her research on domestic violence, has had a significant impact in the United States and the United Kingdom on the treatment and prosecution of cases,
in which a battered woman is charged with the killing of her violent partner. The psychologist explains that the cyclical nature of the violence inflicted upon the battered woman immobilizes the latters ability to act
decisively in her own interests, making her feel trapped in the relationship with no means of escape. [46] In her years of research, Dr. Walker found that the abuse often escalates at the point of separation and battered
women are in greater danger of dying then.[47]
Corroborating these research findings, Dra. Dayan said that the battered woman usually has a very low opinion of herself. She has x x x self-defeating and self-sacrificing characteristics. x x x [W]hen the
violence would happen, they usually think that they provoke[d] it, that they were the one[s] who precipitated the violence[; that] they provoke[d] their spouse to be physically, verbally and even sexually abusive to
them.[48]
According to Dra. Dayan, there are a lot of reasons why a battered woman does not readily leave an abusive partner -- poverty, self-blame and guilt arising from the latters belief that she provoked the violence,
that she has an obligation to keep the family intact at all cost for the sake of their children, and that she is the only hope for her spouse to change.[49]
The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had previously testified in suits involving violent family relations, having evaluated probably ten to twenty thousand violent family
disputes within the Armed Forces of the Philippines, wherein such cases abounded. As a result of his experience with domestic violence cases, he became a consultant of the Battered Woman Office in Quezon City. As
such, he got involved in about forty (40) cases of severe domestic violence, in which the physical abuse on the woman would sometimes even lead to her loss of consciousness. [50]
Dr. Pajarillo explained that overwhelming brutality, trauma could result in posttraumatic stress disorder, a form of anxiety neurosis or neurologic anxietism. [51] After being repeatedly and severely abused,
battered persons may believe that they are essentially helpless, lacking power to change their situation. x x x [A]cute battering incidents can have the effect of stimulating the development of coping responses to the
trauma at the expense of the victims ability to muster an active response to try to escape further trauma. Furthermore, x x x the victim ceases to believe that anything she can do will have a predictable positive
effect.[52]
A study[53] conducted by Martin Seligman, a psychologist at the University of Pennsylvania, found that even if a person has control over a situation, but believes that she does not, she will be more likely to respond
to that situation with coping responses rather than trying to escape. He said that it was the cognitive aspect -- the individuals thoughts -- that proved all-important. He referred to this phenomenon as learned
helplessness. [T]he truth or facts of a situation turn out to be less important than the individuals set of beliefs or perceptions concerning the situation. Battered women dont attempt to leave the battering situation,
even when it may seem to outsiders that escape is possible, because they cannot predict their own safety; they believe that nothing they or anyone else does will alter their terrible circumstances.[54]
Thus, just as the battered woman believes that she is somehow responsible for the violent behavior of her partner, she also believes that he is capable of killing her, and that there is no escape.[55] Battered women
feel unsafe, suffer from pervasive anxiety, and usually fail to leave the relationship.[56] Unless a shelter is available, she stays with her husband, not only because she typically lacks a means of self-support, but also
because she fears that if she leaves she would be found and hurt even more.[57]
In the instant case, we meticulously scoured the records for specific evidence establishing that appellant, due to the repeated abuse she had suffered from her spouse over a long period of time, became afflicted
with the battered woman syndrome. We, however, failed to find sufficient evidence that would support such a conclusion. More specifically, we failed to find ample evidence that would confirm the presence of the
essential characteristics of BWS.
The defense fell short of proving all three phases of the cycle of violence supposedly characterizing the relationship of Ben and Marivic Genosa. No doubt there were acute battering incidents. In relating to the
court a quo how the fatal incident that led to the death of Ben started, Marivic perfectly described the tension-building phase of the cycle. She was able to explain in adequate detail the typical characteristics of this
stage. However, that single incident does not prove the existence of the syndrome. In other words, she failed to prove that in at least another battering episode in the past, she had gone through a similar pattern.

How did the tension between the partners usually arise or build up prior to acute battering? How did Marivic normally respond to Bens relatively minor abuses? What means did she employ to try to prevent the
situation from developing into the next (more violent) stage?
Neither did appellant proffer sufficient evidence in regard to the third phase of the cycle. She simply mentioned that she would usually run away to her mothers or fathers house;[58] that Ben would seek her out,
ask for her forgiveness and promise to change; and that believing his words, she would return to their common abode.
Did she ever feel that she provoked the violent incidents between her and her spouse? Did she believe that she was the only hope for Ben to reform? And that she was the sole support of his emotional stability and
well-being? Conversely, how dependent was she on him? Did she feel helpless and trapped in their relationship? Did both of them regard death as preferable to separation?
In sum, the defense failed to elicit from appellant herself her factual experiences and thoughts that would clearly and fully demonstrate the essential characteristics of the syndrome.
The Court appreciates the ratiocinations given by the expert witnesses for the defense. Indeed, they were able to explain fully, albeit merely theoretically and scientifically, how the personality of the battered
woman usually evolved or deteriorated as a result of repeated and severe beatings inflicted upon her by her partner or spouse. They corroborated each others testimonies, which were culled from their numerous
studies of hundreds of actual cases. However, they failed to present in court the factual experiences and thoughts that appellant had related to them -- if at all -- based on which they concluded that she had BWS.
We emphasize that in criminal cases, all the elements of a modifying circumstance must be proven in order to be appreciated. To repeat, the records lack supporting evidence that would establish all the essentials
of the battered woman syndrome as manifested specifically in the case of the Genosas.

BWS as Self-Defense
In any event, the existence of the syndrome in a relationship does not in itself establish the legal right of the woman to kill her abusive partner. Evidence must still be considered in the context of self-defense.[59]
From the expert opinions discussed earlier, the Court reckons further that crucial to the BWS defense is the state of mind of the battered woman at the time of the offense [60] -- she must have actually feared
imminent harm from her batterer and honestly believed in the need to kill him in order to save her life.
Settled in our jurisprudence, however, is the rule that the one who resorts to self-defense must face a real threat on ones life; and the peril sought to be avoided must be imminent and actual, not merely
imaginary.[61] Thus, the Revised Penal Code provides the following requisites and effect of self-defense:[62]
Art. 11. Justifying circumstances. -- The following do not incur any criminal liability:
1.

Anyone who acts in defense of his person or rights, provided that the following circumstances concur;

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself.
Unlawful aggression is the most essential element of self-defense.[63] It presupposes actual, sudden and unexpected attack -- or an imminent danger thereof -- on the life or safety of a person.[64] In the present case,
however, according to the testimony of Marivic herself, there was a sufficient time interval between the unlawful aggression of Ben and her fatal attack upon him. She had already been able to withdraw from his violent
behavior and escape to their childrens bedroom. During that time, he apparently ceased his attack and went to bed. The reality or even the imminence of the danger he posed had ended altogether. He was no longer
in a position that presented an actual threat on her life or safety.
Had Ben still been awaiting Marivic when she came out of their childrens bedroom -- and based on past violent incidents, there was a great probability that he would still have pursued her and inflicted graver
harm -- then, the imminence of the real threat upon her life would not have ceased yet. Where the brutalized person is already suffering from BWS, further evidence of actual physical assault at the time of the killing is

not required. Incidents of domestic battery usually have a predictable pattern. To require the battered person to await an obvious, deadly attack before she can defend her life would amount to sentencing her to
murder by installment.[65] Still, impending danger (based on the conduct of the victim in previous battering episodes) prior to the defendants use of deadly force must be shown. Threatening behavior or
communication can satisfy the required imminence of danger.[66] Considering such circumstances and the existence of BWS, self-defense may be appreciated.
We reiterate the principle that aggression, if not continuous, does not warrant self-defense.[67] In the absence of such aggression, there can be no self-defense -- complete or incomplete -- on the part of the
victim.[68] Thus, Marivics killing of Ben was not completely justified under the circumstances.

Mitigating Circumstances Present

In any event, all is not lost for appellant. While she did not raise any other modifying circumstances that would alter her penalty, we deem it proper to evaluate and appreciate in her favor circumstances that
mitigate her criminal liability. It is a hornbook doctrine that an appeal in a criminal case opens it wholly for review on any issue, including that which has not been raised by the parties.[69]
From several psychological tests she had administered to Marivic, Dra. Dayan, in her Psychological Evaluation Report dated November 29, 2000, opined as follows:
This is a classic case of a Battered Woman Syndrome. The repeated battering Marivic experienced with her husband constitutes a form of [cumulative] provocation which broke down her psychological resistance and
natural self-control. It is very clear that she developed heightened sensitivity to sight of impending danger her husband posed continuously. Marivic truly experienced at the hands of her abuser husband a state of
psychological paralysis which can only be ended by an act of violence on her part. [70]
Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect of repetitious pain taking, repetitious battering, [and] repetitious maltreatment as well as the severity and the prolonged
administration of the battering is posttraumatic stress disorder.[71] Expounding thereon, he said:
Q What causes the trauma, Mr. Witness?
A

What causes the trauma is probably the repetitious battering. Second, the severity of the battering. Third, the prolonged administration of battering or the prolonged commission of the battering and the
psychological and constitutional stamina of the victim and another one is the public and social support available to the victim. If nobody is interceding, the more she will go to that disorder....
xxx

xxx

xxx

Q You referred a while ago to severity. What are the qualifications in terms of severity of the postraumatic stress disorder, Dr. Pajarillo?
A

The severity is the most severe continuously to trig[g]er this post[t]raumatic stress disorder is injury to the head, banging of the head like that. It is usually the very very severe stimulus that precipitate
this post[t]raumatic stress disorder. Others are suffocating the victim like holding a pillow on the face, strangulating the individual, suffocating the individual, and boxing the individual. In this
situation therefore, the victim is heightened to painful stimulus, like for example she is pregnant, she is very susceptible because the woman will not only protect herself, she is also to protect the fetus.
So the anxiety is heightened to the end [sic] degree.

Q But in terms of the gravity of the disorder, Mr. Witness, how do you classify?
A

We classify the disorder as [acute], or chronic or delayed or [a]typical.

Q Can you please describe this pre[-]classification you called delayed or [atypical]?
A

The acute is the one that usually require only one battering and the individual will manifest now a severe emotional instability, higher irritability remorse, restlessness, and fear and probably in most
[acute] cases the first thing will be happened to the individual will be thinking of suicide.

Q And in chronic cases, Mr. Witness?

A

The chronic cases is this repetitious battering, repetitious maltreatment, any prolonged, it is longer than six (6) months. The [acute] is only the first day to six (6) months. After this six (6) months you
become chronic. It is stated in the book specifically that after six (6) months is chronic. The [a]typical one is the repetitious battering but the individual who is abnormal and then become normal. This
is how you get neurosis from neurotic personality of these cases of post[t]raumatic stress disorder. [72]

Answering the questions propounded by the trial judge, the expert witness clarified further:
Q But just the same[,] neurosis especially on battered woman syndrome x x x affects x x x his or her mental capacity?
A

Yes, your Honor.

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

A

Of course obfuscated.[73]

In sum, the cyclical nature and the severity of the violence inflicted upon appellant resulted in cumulative provocation which broke down her psychological resistance and natural self-control, psychological
paralysis, and difficulty in concentrating or impairment of memory.
Based on the explanations of the expert witnesses, such manifestations were analogous to an illness that diminished the exercise by appellant of her will power without, however, depriving her of consciousness
of her acts. There was, thus, a resulting diminution of her freedom of action, intelligence or intent. Pursuant to paragraphs 9[74] and 10[75] of Article 13 of the Revised Penal Code, this circumstance should be taken in
her favor and considered as a mitigating factor. [76]
In addition, we also find in favor of appellant the extenuating circumstance of having acted upon an impulse so powerful as to have naturally produced passion and obfuscation. It has been held that this state of
mind is present when a crime is committed as a result of an uncontrollable burst of passion provoked by prior unjust or improper acts or by a legitimate stimulus so powerful as to overcome reason.[77] To appreciate this
circumstance, the following requisites should concur: (1) there is an act, both unlawful and sufficient to produce such a condition of mind; and (2) this act is not far removed from the commission of the crime by a
considerable length of time, during which the accused might recover her normal equanimity.[78]
Here, an acute battering incident, wherein Ben Genosa was the unlawful aggressor, preceded his being killed by Marivic. He had further threatened to kill her while dragging her by the neck towards a cabinet in
which he had kept a gun. It should also be recalled that she was eight months pregnant at the time. The attempt on her life was likewise on that of her fetus.[79] His abusive and violent acts, an aggression which was
directed at the lives of both Marivic and her unborn child, naturally produced passion and obfuscation overcoming her reason. Even though she was able to retreat to a separate room, her emotional and mental state
continued. According to her, she felt her blood pressure rise; she was filled with feelings of self-pity and of fear that she and her baby were about to die. In a fit of indignation, she pried open the cabinet drawer where
Ben kept a gun, then she took the weapon and used it to shoot him.
The confluence of these events brings us to the conclusion that there was no considerable period of time within which Marivic could have recovered her normal equanimity. Helpful is Dr. Pajarillos
testimony[80] that with neurotic anxiety -- a psychological effect on a victim of overwhelming brutality [or] trauma -- the victim relives the beating or trauma as if it were real, although she is not actually being beaten
at the time. She cannot control re-experiencing the whole thing, the most vicious and the trauma that she suffered. She thinks of nothing but the suffering. Such reliving which is beyond the control of a person
under similar circumstances, must have been what Marivic experienced during the brief time interval and prevented her from recovering her normal equanimity. Accordingly, she should further be credited with the
mitigating circumstance of passion and obfuscation.
It should be clarified that these two circumstances -- psychological paralysis as well as passion and obfuscation -- did not arise from the same set of facts.
On the one hand, the first circumstance arose from the cyclical nature and the severity of the battery inflicted by the batterer-spouse upon appellant. That is, the repeated beatings over a period of time resulted in
her psychological paralysis, which was analogous to an illness diminishing the exercise of her will power without depriving her of consciousness of her acts.
The second circumstance, on the other hand, resulted from the violent aggression he had inflicted on her prior to the killing. That the incident occurred when she was eight months pregnant with their child was
deemed by her as an attempt not only on her life, but likewise on that of their unborn child. Such perception naturally produced passion and obfuscation on her part.
Second Legal Issue:

Treachery
There is treachery when one commits any of the crimes against persons by employing means, methods or forms in the execution thereof without risk to oneself arising from the defense that the offended party
might make.[81] In order to qualify an act as treacherous, the circumstances invoked must be proven as indubitably as the killing itself; they cannot be deduced from mere inferences, or conjectures, which have no place
in the appreciation of evidence.[82] Because of the gravity of the resulting offense, treachery must be proved as conclusively as the killing itself.[83]
Ruling that treachery was present in the instant case, the trial court imposed the penalty of death upon appellant. It inferred this qualifying circumstances merely from the fact that the lifeless body of Ben had
been found lying in bed with an open, depressed, circular fracture located at the back of his head. As to exactly how and when he had been fatally attacked, however, the prosecution failed to establish indubitably.
Only the following testimony of appellant leads us to the events surrounding his death:
Q You said that when Ben came back to your house, he dragged you? How did he drag you?
COURT:
The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck)
A

And he dragged me towards the door backward.

ATTY. TABUCANON:
Q Where did he bring you?
A

Outside the bedroom and he wanted to get something and then he kept on shouting at me that you might as well be killed so there will be nobody to nag me

Q So you said that he dragged you towards the drawer?

A

Yes, sir.

Q What is there in the drawer?

A

I was aware that it was a gun.

COURT INTERPRETER
(At this juncture the witness started crying)
ATTY. TABUCANON:
Q Were you actually brought to the drawer?
A

Yes, sir.

Q What happened when you were brought to that drawer?

A

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

COURT INTERPRETER

(The witness at this juncture is crying intensely).

xxx

xxx

xxx

Q You said that he dropped the blade, for the record will you please describe this blade about 3 inches long, how does it look like?
A

Three (3) inches long and inch wide.

Q It is a flexible blade?
A

Its a cutter.

Q How do you describe the blade, is it sharp both edges?

A

Yes, because he once used it to me.

Q How did he do it?

A

He wanted to cut my throat.

Q With the same blade?

A

Yes, sir, that was the object used when he intimidate me.
xxx

xxx

xxx

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

Yes, because I smashed him.

Q What happened?
A

Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I smashed him and I ran to the other room.

Q What else happened?

A

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

COURT INTERPRETER:
(Upon the answer of the witness getting the pipe and smashed him, the witness at the same time pointed at the back of her neck or the nape).
ATTY. TABUCANON:
Q You said you went to the room, what else happened?
A

Considering all the physical sufferings that Ive been through with him, I took pity on myself and I felt I was about to die also because of my blood pressure and the baby, so I got that gun and I shot him.

COURT
/to Atty. Tabucanon
Q You shot him?
A

Yes, I distorted the drawer.[84]

The above testimony is insufficient to establish the presence of treachery. There is no showing of the victims position relative to appellants at the time of the shooting. Besides, equally axiomatic is the rule that
when a killing is preceded by an argument or a quarrel, treachery cannot be appreciated as a qualifying circumstance, because the deceased may be said to have been forewarned and to have anticipated aggression from
the assailant.[85]
Moreover, in order to appreciate alevosia, the method of assault adopted by the aggressor must have been consciously and deliberately chosen for the specific purpose of accomplishing the unlawful act without
risk from any defense that might be put up by the party attacked.[86] There is no showing, though, that the present appellant intentionally chose a specific means of successfully attacking her husband without any risk to
herself from any retaliatory act that he might make. To the contrary, it appears that the thought of using the gun occurred to her only at about the same moment when she decided to kill her batterer-spouse. In the
absence of any convincing proof that she consciously and deliberately employed the method by which she committed the crime in order to ensure its execution, this Court resolves the doubt in her favor.[87]

Proper Penalty
The penalty for parricide imposed by Article 246 of the Revised Penal Code is reclusion perpetua to death. Since two mitigating circumstances and no aggravating circumstance have been found to have attended
the commission of the offense, the penalty shall be lowered by one (1) degree, pursuant to Article 64 of paragraph 5[88] of the same Code.[89] The penalty of reclusion temporal in its medium period is imposable,
considering that two mitigating circumstances are to be taken into account in reducing the penalty by one degree, and no other modifying circumstances were shown to have attended the commission of the offense.[90]
Under the Indeterminate Sentence Law, the minimum of the penalty shall be within the range of that which is next lower in degree -- prision mayor -- and the maximum shall be within the range of the medium period
of reclusion temporal.
Considering all the circumstances of the instant case, we deem it just and proper to impose the penalty of prision mayor in its minimum period, or six (6) years and one (1) day in prison as minimum; to reclusion
temporal in its medium period, or 14 years 8 months and 1 day as maximum. Noting that appellant has already served the minimum period, she may now apply for and be released from detention on parole.[91]

Epilogue
Being a novel concept in our jurisprudence, the battered woman syndrome was neither easy nor simple to analyze and recognize vis--vis the given set of facts in the present case. The Court agonized on how to
apply the theory as a modern-day reality. It took great effort beyond the normal manner in which decisions are made -- on the basis of existing law and jurisprudence applicable to the proven facts. To give a just and
proper resolution of the case, it endeavored to take a good look at studies conducted here and abroad in order to understand the intricacies of the syndrome and the distinct personality of the chronically abused person.
Certainly, the Court has learned much. And definitely, the solicitor general and appellants counsel, Atty. Katrina Legarda, have helped it in such learning process.
While our hearts empathize with recurrently battered persons, we can only work within the limits of law, jurisprudence and given facts. We cannot make or invent them. Neither can we amend the Revised Penal
Code. Only Congress, in its wisdom, may do so.
The Court, however, is not discounting the possibility of self-defense arising from the battered woman syndrome. We now sum up our main points. First, each of the phases of the cycle of violence must be proven
to have characterized at least two battering episodes between the appellant and her intimate partner. Second, the final acute battering episode preceding the killing of the batterer must have produced in the battered
persons mind an actual fear of an imminent harm from her batterer and an honest belief that she needed to use force in order to save her life. Third, at the time of the killing, the batterer must have posed probable --

not necessarily immediate and actual -- grave harm to the accused, based on the history of violence perpetrated by the former against the latter.
self-defense. Under the existing facts of the present case, however, not all of these elements were duly established.

Taken altogether, these circumstances could satisfy the requisites of

WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED. However, there being two (2) mitigating circumstances and no aggravating circumstance attending her
commission of the offense, her penalty is REDUCED to six (6) years and one (1) day of prision mayor as minimum; to 14 years, 8 months and 1 day of reclusion temporal as maximum.
Inasmuch as appellant has been detained for more than the minimum penalty hereby imposed upon her, the director of the Bureau of Corrections may immediately RELEASE her from custody upon due determination that she
is eligible for parole, unless she is being held for some other lawful cause. Costs de oficio.
SO ORDERED.
EN BANC
G.R. No. L-8924

November 18, 1913

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

then took to flight and ran away from Rivera until he was stopped by the fence in the neighbor's yard, where the fatal blow was struck, all three of the accused there joining in the
attack.chanroblesvirtualawlibrary chanrobles virtual law library
For an examination of all the evidence of record as well as from a consideration of the inherent improbability of this story, we are well satisfied that the window of the deceased deliberately inverted the facts with the
intention of increasing the criminal liability of the accused.chanroblesvirtualawlibrary chanrobles virtual law library
It is fully and conclusively established that when Domingo Rivera stood in the street challenging her husband to come down and prove which was the better man, he had two stones in his hands, and it may fairly be
inferred from this fact that at that moment he was not armed with a bolo. The bolo with which the fatal wound was inflicted was produced at the trial in the court below and was shown to be, by comparison with the
bolo used by the deceased, a relatively small weapon, referred to indifferently by the witnesses as a knife or a bolo ( cuchillo o bolo). It does not appear clearly from the record just where or when Domingo Rivera
secured this bolo, but it seems clear that it must either have been handed to him by some person after the accused had rushed upon him and put him to flight, or that he drew it from its sheath while he was endeavoring
to make his escape. The deceased was shown to be a much larger and more powerful man than his adversary, and it would seem to be contrary to the inherent probabilities of the situation to hold that the smaller man,
unarmed or at most armed with a very short small bolo, would succeed in putting to flight his adversary, who by the window's own statement rushed down from the house to the attack with a large and dangerous bolo
in his hand. Moreover the wounds in the back of Domingo Rivera almost conclusively corroborate his story and the story of various witnesses who testified that they saw him endeavoring to make his escape from the
deceased.chanroblesvirtualawlibrary chanrobles virtual law library
The accused themselves undertook at the trial to relieve themselves of all criminal responsibility: Domingo Rivera insisting that he struck the fatal blow in self-defense at the moment when the deceased had left himself
open to attack by a slip as he approached the fenced place where he (Rivera) turned to await him; and the other two accused insisting that they did not come up to the party until a few moments after the fight took place,
and that they intervened only to help to carry away the wounded man. Their account of the fight at the fence is in our opinion completely disaproven by the testimony of the witnesses called for both the prosecution and
the defense, and we are satisfied that in declining to tell the truth as to all that occured, Rivera and Batoon were actuated by the fear that if they had taken an active part in the fight they might be punished on the charge
of unlawfully killing the deceased.chanroblesvirtualawlibrary chanrobles virtual law library
The trial judge accepted the story as told by the window and, erroneously as we are convinced, convicted all three defendants of the crime of homicide. As to the accused Antonio Rivera (the father of Domingo, who
inflicted the fatal wound) and Canuto Batoon, we think that they were clearly entitled to acquittal on the ground that their intervention if the affray was actuated solely by a desire to save their kinsman and friend from
imminent danger of death at the hands of his much stronger and better-armed adversary. It seems quite clear that in striking the bolo from the hands of the deceased and grasping him around the waist, they did no
more than the manifest necessities of the occasion demanded, and that under all the circumstances they cannot be held criminally liable for their intervention on his behalf. It is not contended that they took any part in
the original dispute which resulted in the fatal affray, nor that they were actuated by revenge, resentment or any other evil motive. Article 8 of the Penal Code provides that:
The following are exempt from criminal liability:
xxx

xxx

xxx

4. Anyone who acts in defense of his person or rights, provided that the following circumstances concur:
(1) Unlawful aggression.chanroblesvirtualawlibrary chanrobles virtual law library
(2) Reasonable necessity for the means employed to prevent or repel it.chanroblesvirtualawlibrary chanrobles virtual law library
(3) Lack of sufficient provocation on the part of the person defending himself.

5. Anyone who acts in defense of the person or rights of his spouse, ascendants, or legitimate, natural, or adopted brothers or sisters, or of his relatives by affinity in the same degrees, and those by consanguinity within
the fourth civil degree, provided that the first and second circumstances prescribed in the next preceding paragraph are present, and the further circumstance, in case the provocation was given by the person attacked,
that the one making defense had no part therein.chanroblesvirtualawlibrary chanrobles virtual law library
6. Anyone who acts in defense of the person or rights of a stranger, provided that the first and second circumstances mentioned in paragraph four are present, and the further circumstance that the person defending be
not actuated by revenge, resentment, or other evil motive.
As to the accused Domingo Rivera, we are of the opinion that in view of the provocation given by him to the deceased he cannot be said to have established his claim of absolute exemption from criminal liability on the
ground that the killing of the deceased was done in lawful self-defense. The evidence of record leaves no room for doubt that he provoked the quarrel which resulted in the death of his
adversary.chanroblesvirtualawlibrary chanrobles virtual law library
Article 86 of the Penal Code provides as follows: "A penalty lower by one or two degrees than that prescribed by law shall be imposed if the deed were not wholly excusable by reason of the lack of some of the conditions
required for exemption from criminal liability in the several cases mentioned in article 8, provided that the majority thereof be present. The courts shall impose the penalty in the degree which may be deemed proper, in
view of the number and weight of the conditions of exemption present or lacking." chanrobles virtual law library
Under all the circumstances of this case we are of the opinion that the appellant Domingo Rivera, although guilty of the crime of homicide, should be given the benefit of the provisions of this article, it appearing that
but for the fact that he himself provoked the fatal quarrel, he would be exempt from all criminal liability, on the ground that he struck the fatal blow in self-defense. The penalty which should have been imposed upon
him is, therefore, the penalty lower by one degree than that prescribed for the crime of homicide.chanroblesvirtualawlibrarychanrobles virtual law library
The judgment of conviction and the sentence imposed by the trial court upon all the defendants and appellants should be and is reversed. The appellants Antonio Rivera and Canuto Batoon should be and are acquitted
of the crime with which they are charged, with their proportionate share of the costs in both instances de oficio, and they will be set at liberty forthwith. But the defendant Domingo Rivera is hereby declared to be guilty
of the crime of homicide with which he was charged, modified nevertheless by the fact that the fatal blow would have been struck in lawful self-defense but for the fact that he himself provoked the assault of his
adversary. He should therefore be, and he is hereby, sentenced to six years and one day of prision correccional, together with the accessory penalties prescribed by law, and to the payment of his proportionate share of
the cost in both instances.chanroblesvirtualawlibrary chanrobles virtual law library
Arellano, C.J., Torres, Moreland and Trent, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-65762 June 23, 1984
JOSE FRIAS, JR. and GERVACIO TACAS, petitioners-appellants,
vs.
PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN, respondents-appellees.
Marcelino P. Arias for petitioners-appellants.

The Solicitor General for respondents-appellees.

RELOVA, J.:
In this petition for review by certiorari, petition appellants seek reversal of the decision of the Sandiganbayan, the dispositive part of which reads:
WHEREFORE, accused P/Cpl. GERVACIO TACAS and JOSE FRIAS, JR. are hereby found guilty beyond reasonable doubt as principals of the crime of Murder, qualified by taking advantage of
superior strength, defined and penalized under Article 248 of the Revised Penal Code. Taking into account the mitigating circumstance of voluntary surrender without any aggravating circumstance to
offset the same and applying the Indeterminate Sentence Law, both accused are each sentenced to an indeterminate penalty ranging from ELEVEN (11) YEARS and ONE (1) DAY of prision mayor, as
minimum to EIGHTEEN (18) YEARS and SIX (6) MONTHS of reclusion temporal as maximum; to pay to the heirs of the deceased Bartolome Arellano, jointly and severally, P15,000.00 for the death
of said victim; P5,311.45 as actual damages; P15,000.00 as moral damages; compensatory damages of P40,000.00, by way of unrealized earnings; and to pay the costs.
Subject homemade "bulldog" gin marked Exhibit 1-a is hereby confiscated in favor of the state; but let the armalite marked Exhibit 1-a which was issued as official service firearm of P/Cpl. Gervacio
Tacas be returned to Sta. Teresita, Cagayan police station for proper disposition. (pp. 96-97, Rollo)
Appellant Gervacio Tacas is a member of the police force of Sta. Teresita, Cagayan; has been a policeman for 24 years and was on duty on August 3, 1980. He admitted having shot Bartolome Arellano on August 3, 1980.
However, he claims that he did so in self-defense and/or in the fulfillment of duty or lawful exercise of a right or office. As aptly stated by respondent court, "[t]o avoid criminal liability therefor, he has to show to the
satisfaction of the Court the attendance of justifying circumstance or circumstances and must rely on the strength of his own evidence. He can not depend on the weakness of the prosecution's evidence for even if weak,
it could not be disbelieved after the accused himself owned the killing." (p. 81, Rollo)
Respondent court based its finding of guilt of herein appellants on the testimony of Edita Arellano, daughter of the deceased, and the testimonies of Francisco Arellano and Ricardo Bilag who both claimed to have
witnessed the killing. Their testimonies, as summarized by the trial court, are as follows:
Testimony of Edita Arellano
"Second witness for the People was Edita Arellano y Pajela, daughter of the deceased Bartolome Arellano. She testified that her father was a farmer by occupation, planting rice to a 3 hectare land with an average yield
of 80 sacks per harvest every semester at P50.00 per sack. According to her, her late father was an early riser. On August 3, 1980, he was up at 4:00 in the morning and after preparing food, he went out to the field, as
he usually did, to see his carabao. He was in short pants and sweater and unarmed.
"Then, at around 5:30 that fateful morning, she heard a single gunfire followed by three 'bang, bang, bang' and a series of gunshots thereafter, after which somebody who was running told her that her father was dead.
So, she rushed to the highway and found her dead father lying face down with hands and feet stretched and right forearm supporting the forehead. Many people were around the cadaver and even as she went nearer,
she saw policemen taking photographs of the deceased. Then, Cpl. Tabarrejo turned the cadaver face upward and placed over the abdomen a gun and knife afterwhich pictures thereof were again taken; but she did not
see where Cpl. Tabarrejo got the said gun and knife.
"Pointing to accused Gervacio Tacas in Court, this prosecution witness also testified that she did not know what to do and was crying hysterically in front of Tabarrejo when the aforementioned acts were being done
with her dead father. She was the only one left at home because her mother went to Laoag City. Ignorant, helpless, shocked, and speechless, she just. watched what the policemen were doing to the mortal body of her
late 56 year-old father." (pp. 38-39, Rollo)
Testimony of Francisco Arellano

"According to him, on the night of August 2, 1980, he was in the dance hall within the poblacion of Sta. Teresita, Cagayan. He slept there and went home at about 5:00 the following morning, reaching Simpatuyo by jeep
an hour later. He met accused Gervacio Tacas on the bridge. Tacas, in under wears, was holding an armalite and was with Jose Frias, Jr. who was armed with a carbine. Being still a second cousin of Tacas, he was not
afraid. He trailed Tacas just one and a half meter on the same side of the barangay road while Frias walked eight meters from them on the other side of the road. From such vantage position, he saw Frias aiming a
carbine at Bartolome Arellano who was then facing Tacas and eight meters from Frias. Bartolome Arellano was unarmed and was walking slowly in a stooping manner at the place reflected in the sketch (Exhibit F). It
was Tacas who first shot Arellano before Frias also fired at the latter but he could not ten if Bartolome was hit then. Thereafter, Bartolome Arellano ran and Tacas moved such that the latter was about to meet the
former. However, when Bartolome Arellano noticed the approaching Tacas, Arellano turned around and ran back to where he was formerly (the spot marked B. Arellano in Exhibit F) even as Frias moved to the 'RIC'
which is made of hollow blocks and Tacas returned to the edge of the LB canteen. He was beside Tacas when Tacas and Frias fired. Both Tacas and Frias fired twice but more reports came from Tacas who touched the
automatic lever of his gun. After the firing was over, Arellano whirled around and fell face down in the place where there is a palm tree, witness recounted.
"Elaborating on how he managed to observe the happening in question, he explained that he was only a meter away from Tacas and five to six meters from Frias when the assailants shot the victim. Being still a second
cousin to Tacas, he even commented to Tacas 'No more, Manong' but this was after the victim fell and was dead already. Upon seeing his dead cousin, fear seized him because Tacas might also turn against him. Before
leaving the scene, however, he tried to go closer to the fallen victim but only to be told by Tacas 'Get away from there; otherwise, I will pulverize your face.' Apprehensive of what could happen to him in such a perilous
situation, he left, witness narrated.
"This prosecution witness also identified Exhibits E and E-1 to be the pictures of the deceased Bartolome Arellano, a first cousin of his. He admitted that he was never investigated by the police and did not present
himself to the PC authorities in Aparri or elsewhere for investigation in connection with the incident under inquiry; and that it was only before Fiscal Ferrer the day before he testified in court that he executed an
affidavit for the first time in relation to this case. He never moved to another place since the time of the shooting at bar took place but he was not able to present himself as a witness earlier for the reason that some
people in their locality made him understand that he is disqualified to be a witness in the case involving a first cousin of his. He was still at the scene of the crime when police probers arrived but because he was never
asked, he did not volunteer any information. However, he told Edita, daughter of the deceased, that he witnessed the shooting but she said 'Never mind, Tatang.' During the burial, he also informed other relatives, like
his Uncles Mando Arellano and Tolentino Arellano, of what he saw in the same way that he told the bereaved widow of the victim. During the wake, there were also police investigators but inasmuch as nobody inquired
as to who shot the victim, he did not tell anything to the investigators; besides, he was out for work, witness who insisted that he witnessed the shooting complained of, pointed out.
"Finally, this witness divulged that the victim was not carrying anything at the time the two accused shot him (victim).lwphl@it In fact, the victim was only wearing short pants and 'bad shirt,' he added." (pp. 40-43,
Rollo)
Testimony of Ricardo Bilag
"Ricardo Bilag y Sotelo, security guard by occupation and who stayed in barangay Simpatuyo, Sta. Teresita, Cagayan from July 23, 1980 to January 1981, was the fourth People's witness in this case. Among other things,
he declared that during the aforesaid period, he sojourned with his cousin, Ernesto Lazo, whose house is located in the place indicated with initial 'EL' (Exhibit F-1) in Exhibit F. On August 3, 1980, he was, therefore, in
the house of Ernesto Lazo. Waking up at 5:45 a.m. on Id date, he was by the window facing the national road to San Vicente when he witnessed the unusual incident wherein Bartolome Arellano was killed. Before
Bartolome Arellano was fatally shot, the latter was walking on the national road and was being followed by accused Gervacio Tacas who was with an armalite. Tacas was wearing brief and sleeveless shirt. Standing by
the road behind Tacas was accused Jose Frias, Jr. who was with a carbine. At the far end of the barangay road walking to and fro around four meters from Tacas was Francisco Arellano. Bartolome Arellano was without
any weapon. He was wearing dark shoes and brown long sleeves shirt.
"According to this witness, when Tacas was following Bartolome Arellano, the latter went to hide behind the 'RIC' concrete marker even as Tacas was aiming the gun at him (Bartolome Arellano). After Tacas fired twice,
Bartolome Arellano ran towards a 'silag' tree about 12 meters from the 'RIC' concrete market but he was again followed by Tacas who crossed the national road and went near the same 'silag' tree; and when Bartolome
Arellano tried to go to the national road and was passing by the store, the latter was shot by Tacas, at which precise time, Frias was at the roadside, lying with stomach down and aiming also his gun at Bartolome
Arellano. Frias maintained such position while Bartolome Arellano was behind the 'RIC' concrete marker and fired once at the latter. Then, when Bartolome Arellano went to the place of the 'silag' tree, Frias remained
thereat and when Bartolome Arellano was moving to the national road, Frias stood in the middle of the road and fired again but he (witness) could not tell if the victim was hit. After Bartolome Arellano was shot by
Tacas, said victim slowly slumped to the ground and thereafter, Frias went home. It was Tacas who first fired at the victim where the victim was passing near the store. Frias fired later at the victim who was then slowly
slumping to the ground. He subsequently saw Edita, daughter of the deceased, crying by the side of her fallen father, so this witness recollected.

"He likewise divulged that he executed his affidavit (Exhibit G) on September 14, 1980 before Provincial Fiscal Bello in Aparri, Cagayan. Afraid that the culprits might kin him, he motored 30 kilometers to Aparri
subscribe and swear to such sworn statement of his. He is not related in anyway to the. deceased. He actually saw Francisco Arellano at the crime scene. He even told Sianing Arellano, a brother. of the deceased, of that
fact.
"On cross-examination, this prosecution witness testified further that his permanent place of abode is Dapdap, Amulong, Cagayan, more or less 80 kilometers from Simpatuyo, Sta. Teresita. However, he used to go to
Sta. Teresita for vacation. He only does not know if the people of said place know him well. In the last week of July 1980, he was staying in the house of his cousin, Ernesto Lazo, four houses from Gervacio Tacas' house.
Before July 23, 1980, he did not personally know Bartolome Arellano. Although he knows Raymundo Arellano, supposed to be one of the richest resident in the place, he was not aware that Raymundo is the father of
Bartolome. Reminiscing how he happened to be a witness in the case, this witness disclosed that upon the request of Sianing Arellano, Ernesto Lazo asked him if he was really present during the happening of the
incident in question and he answered his cousin affirmatively. He admitted, however, that he was never investigated by the police. Not having been asked by the police officers who were at the crime scene, he did not
volunteer any information. Neither did he let Edita, daughter of the deceased, know what he saw. He only decided to give his written statement on September 14, 1980 in Aparri in which statement he was not able to
mention the presence of Francisco Arellano at the crime scene. Said affidavit of his was made by Atty. Jose Brillantes in Bugey, Cagayan in the presence of another witness and a brother of the deceased. Prior thereto, he
was also called once by Mayor Bernoli Arquero of Sta. Teresita and requested by the Mayor to testify for the prosecution; but the sole reason for him to testify in court is to help the court gather the truth regarding the
shooting incident under inquiry.
"This witness also narrated that it was only after the incident at bar that he learned that Jaime Yerre, Jr. and Manuel Pajela were also shot on August 3, 1980 and he heard that it was Bartolome Arellano who shot the
two during a mahjong game; but he does not know if the buckshot used by Bartolome Arellano in shooting said victims was recovered by the police authorities. According to him, Bartolome Arellano was not carrying
anything when he saw him after hearing the first burst of gunfire." (pp. 43-47, Rollo) The trial court said:
Obviously, unlawful aggression is the main ingredient of self-defense. Without unlawful aggression, there can be no self-defense, complete or incomplete. And it is unlawful aggression which imperils
one's life, limb or right either actually or imminently, that makes the invocation of self-defense feasible. In short, before he was shot to death, did the victim create or constitute any menace to the
accused? Painstakingly evaluating the gamut of evidence at hand, We can not divine how an unarmed person could have done unlawful aggression against two heavily armed men. To be sure, the
showing that Bartolome Arellano was without any deadly weapon when he met his violent death is too overwhelming to be overlooked. Waking up at 4:00 in the morning of August 3, 1980, as was his
daily routine, he cooked food for his family after which, with short pants and "bad shirt" to cover his body, he went down for the nearby ricefield to attend to his working animal. It does not appear that
he had any gun or even a bolo. Indeed, from all appearances, he did not go out to do violence against anybody. In fact, he was seen later by the prosecution witnesses, notably Francisco Arellano, Jr.
and Ricardo Bilag, going from one place to another in a determined effort to save dear life from the advancing Gervacio Tacas and Jose Frias, Jr. who were combat-ready and armed to the teeth. Said
prosecution witnesses succinctly testified that Bartolome Arellano was not holding anything at that unlucky moment. If he had a bulldog gun and a bolo tucked to the waist, considering that it was
already 6:00 in the morning at the time, bright enough for everybody to observe the happening under inquiry, it would be easy for the prosecution witnesses to detect any weapon in the possession of
the victim but the truth is he had none and could not have been a real to the life and limb of Tacas and Frias who were respectively armed with an armalite and a carbine. As a matter of fact, the victim
was actually running away. Then, too, if there was any cap for him to sender by the heavily armed Tacas who was assisted by Frias, Bartolome Arellano would have meekly heeded the same, no doubt.
All things considered, We find the victim incapable of unlawful aggression. The situation he was in belies self-defense.
Absent unlawful aggression on the part of the victim it is needless for Us to discuss lengthily the other requirements for valid self-defense. As aptly held in a recent decision of Ours, when there is no
unlawful aggression to speak of, there is nothing to defend against or repel And the requisites that there be reasonable necessity in the means employed to repel unlawful aggression and lack of
sufficient provocation on the part of the person defending himself have no room for application.
Neither is the justifying circumstance of fulfilment of duty under paragraph 5 of Article 11 of the Revised Penal Code availing, it appearing that the victim was truly unarmed and it was not necessary to
shoot him. Peace officers are never justified in using unnecessary force, wanton violence or dangerous means. Not even a hardened criminal should be handled in the manner complained of. (pp. 8284, Rollo)
However, the Solicitor General, in his Comment, said that the findings of the trial court are not supported by the evidence; that an objective analysis of the evidence in fact discloses overwhelming proof that Bartolome
Arellano was armed and shot certain persons, including appellant Tacas. He recommends acquittal of petitioners-appellants.

Manuel Pajela and Jaime Yerre, Jr. testified that while they were playing mahjong at about 5:30 in the morning of August 3, 1980, they were fired at with a shotgun by Bartolome Arellano. Prosecution witness Ricardo
Bilag confirms the version of the defense that Bartolome Arellano shot and wounded Pajela and Yerre with a shotgun. Hereunder is Bilag's testimony on this point
ATTY. PAZ:
Q And you heard that first shot before you saw Jose Frias, is that right?
WITNESS:
A Yes, sir.
ATTY. PAZ:
Q Now, tell the truth Mr. witness. Did you come to know that on the morning of August 3, 1980, BARTOLOME Arellano shot at the persons who were playing mahjong at Simpatuyo
and wounded two of them?
WITNESS:
A After the incident I came to know there were two persons hit.
ATTY. PAZ:
Q And these persons whom you came to know who were hurt were Jaime Yerre, Jr. and Manuel Pajela?
WITNESS:
A Yes, sir.
ATTY. PAZ:
Q And you even heard after the incident that it was Bartolome Arellano who shot Jaime Yerre and Manuel Pajela which cause their injury?
WITNESS:
A After that incident I also heard the same thing that he shot Jaime Yerre and Manuel Pajela.
ATTY. PAZ:
Q And you heard also that Bartolome Arellano shot them on August 3, 1980 with a buckshot?

PRESIDING JUSTICE PAMARAN:

You are assuming that he knows what a buckshot is.
ATTY. PAZ:
I will lay the basis.
JUSTICE ESCAREAL:
Q Do you know what a buckshot is known in Cagayan?
WITNESS:
A Yes, sir.
JUSTICE ESCAREAL:
Q What is it?
WITNESS:
A A gun with 13 cage bullets.
JUSTICE ESCAREAL:
Q Meaning a shotgun using 12 bullets that is usually used in some parts of Cagayan even before Martial Law?
WITNESS:
A Yes, sir. (pp. 50-62, tsn., hearing November 19, 1981)
Further, he admitted that when he (Bilag) saw appellant Tacas that early morning, the latter was wearing only a brief and sleeveless shirt. This supports the testimony of Tacas that he was sleeping when he was
suddenly awakened by the sound of gunfire followed by cries of Pajela's wife for help; that looking at the window, he saw Pajela bleeding and about to be carried inside his house; and that he then grabbed his service
armalite and went down in his brief and undershirt. As observed by the Solicitor General, if Tacas did plan the killing of Arellano, he would have put on a more respectable attire. The fact that he went out in the street in
his brief confirms the truth of his testimony that he merely responded to an urgent call for help.
Dr. Ferdinand Cario of the Ponce Enrile Memorial Hospital testified that on August 3, 1980 he treated Manuel Pajela and Jaime Yerre for gunshot wounds and were thereafter confined at the hospital.

With respect to the testimony of Francisco Arellano, the Solicitor General claims that the same is "so unbelievable that no one hardly knows where to begin in pointing out the falsity of his declaration. Thus:
1. The improbability of F. Arellano's testimony is no more manifest than from his claim that he was present when the crane was committed. Could it be believed that Tacas, a veteran policeman for 24
years would be so rash as to ambush the deceased in the presence of his first degree cousin? (pp. 22-24, tsn., October 28, 1981).
2. The testimony of F. Arellano that Bartolome Arellano was shot while unarmed and in coldblood is rendered more improbable by the time and place of the incident. The road is hardly the place to
court murder, especially when it is 'already bright.' (pp. 20, 27, tsn., October 29, 1981).
3. F. Arellano testified that before the shooting, there were many people near the bridge who witnessed the shooting. They were "Edring, Dianong, Mr. Consejal Pagarigan, Macario Soliven, Ernesto
Gallardo" and the father of the victim (pp. 32-34, tsn, October 29, 1981). Why would Tacas kill B. Arellano under the circumstances depicted by the prosecution? Common sense dictates against
acceptance of a story that pictures a lawman killing an old and defenseless man for no apparent reason and in the presence of so many witnesses.
4. F. Arellano could not even be consistent. On direct examination, he declared that he was beside Tacas when the latter shot and killed B. Arellano (p. 8, Decision).lwphl@it On cross-examination,.
he was no longer beside Tacas but five to six meters away (p. 9, Decision).
5. F. Arellano declared that Tacas was wearing 'short pants (P. 11, Decision). What the other eyewitness for the prosecution saw was something else. According to Bilag, Tacas was wearing only a "brief"
(p. 11, Decision). If indeed Tacas was wearing a brief, Bilag's testimony complements the testimony of Tacas that he was sleeping when awakened by the sound of gunfire and hurriedly went down ' to
investigate. Either F. Arellano or Bilag is lying. Both can not be right.
6. F. Arellano's testimony was that Tacas and Frias were walking when they met B. Arellano (p. 8, Decision). What Bilag saw was B. Arellano being followed by Tacas (p. 11, Decision).
7. F. Arellano declared that Tacas shot B. Arellano upon seeing him (p. 8, Decision appended to Petition). Bilag's testimony is different. Although on direct examination, Bilag declared that Tacas fired
two shots when B. Arellano hid behind the 'RIC' concrete marker, he clarified this on cross-examination, declaring that when Tacas fired his first shot, the gun was aimed upwards (p. 64, tsn.,
November 19, 1981). Bilag further testified that when B. Arellano reached the silag tree, Tacas fired another shot aimed "upwards" (p. 69, Id.)
xxx xxx xxx
8. F. Arellano was not listed as one of the prosecution witnesses. He simply appeared out of the blue as a witness for the prosecution on October 28, 1981, one year, two months after the incident and
while the trial was in progress. In fact, his affidavit was executed only the day before he testified, or on October 27, 1981.
His appearance only at the trial is unnatural because, according to him, he had told the widow of the victim and his uncles, Raymundo and Tolentino Arellano at the wake that he witnessed the
incident (p. 33, tsn., October 28, 1981; pp. 12-15, tsn., October 29, 1981). He also claims to have told Edita, the victim's daughter, after the burial (p. 32, tsn., October 28 , 1981). And yet he was not
investigated. Nor did he present himself for investigation to the police, PC or fiscal. Plainly, he was a conjured witness for the prosecution.
xxx xxx xxx
9. There is paucity of material details in the testimony of F. Arellano. Thus, Bilag who was farther away from Tacas heard more of Tacas' words and saw more of Tacas' movements and actions than F.
Arellano who claims to have been only a few meters distant from Tacas.
10. F. Arellano testified that he saw Ricardo Bilag before and after the shooting near or at the scene of the crime (pp. 30-34, tsn., October 29, 1981).

According to Bilag, he was not investigated by the police; because he "did not get near the scene of the crime" (p. 38, tsn., November 19, 1981).
11. The testimony of F. Arellano starts only from. the time Tacas and Frias were about to shoot B. Arellano. It does not therefore refute the testimony of the defense witnesses that before Arellano was
killed, he shot Manuel Pajela and Jaime Yerre Jr. with a shotgun. (pp. 129-131, 134-135, Rollo)
On the other hand, appellant Gervacio Tacas testified that at about 5:00 in the morning of August 3, 1980, he was awakened from his sleep by the sound of gunfire, that hearing a woman shouting for help east of his
house, he opened the window and saw Pajela slumped on a table, blood oozing from his body, that he grabbed his armalite rifle, went out and saw Bartolome Arellano with a gun proceeding towards the RIC marker (p.
20-26, tsn., January 11, 1983." (pp. 126-127, Rollo)
Appellant Jose Frias testified that "at about 5:30 in the morning of August 3, 1980, he was awakened when he heard a loud explosion coming from the eastern side of his house. that he looked out of the window and saw
Pajela lying on a table, bleeding, that he went down and saw Tacas, his father-in-law, calling upon Bartolome Arellano to surrender; and that Bartolome Arellano was in the street proceeding towards the RIC marker,
and that Bartolome Arellano was armed with a "bulldog" shotgun (pp. 5-9, tsn., March 14, 1983)." (p. 127, Rollo)
The testimonies of petitioners-appellants were corroborated by Teodoro Paguirigan, a nephew of Bartolome Arellano; Modesto Macarubbo, Station Commander of Sta. Teresita Police Station, and Cpl. Silvino
Tabarrejo.
Teodoro Paguirigan declared that when he heard gunfires at about 5:00 in the morning of August 3, 1980, he stood-up, looked out of the window and saw Bartolome Arellano leaving the house of Pajela with a shotgun
on his hand and a bolo on his waist. Later, Paguirigan saw Bartolome Arellano point his gun and shot at Tacas.
Modesto Macarubbo testified that when he arrived at the scene of the incident, he recovered a shotgun and a bolo from under the body of Bartolome Arellano. The gun had one (1) empty shell in its chamber,
Corporal Silvino Tabarrejo, who arrived at the place with Commander Macarubbo, said Bartolome Arellano's right hand was holding a homemade shot gun while on his waist was tucked a knife.
The above testimonies find corroboration on the fact that pellets, gauge 12 (Exhibits 1b2 and 1b3 were extracted by the police from one of the posts of Eny Peralta's store where appellant Tacas sought cover. These
pellets match the empty shell, which is also gauge 12, found in the shotgun's chamber (Exhibit 1b As correctly observed by the Solicitor General, "these items, taken together with the testimonies of both the defense and
prosecution witnesses, indubitably prove that Bartolome Arellano was armed and he shot at appellant Tacas." (p, 128, Rollo)
The law recognizes the non-existence of a crime when it expressly stated in the opening sentence of Article 11 of the Revised Penal Code that the persons therein mentioned "do 4 not incur any criminal liability." If there
is a circumstance justifying the defendant's act, he is exempt from both criminal and civil liability, except in paragraph 4 of this Article 11, where the civil liability is borne by the persons benefited by the act.
The fifth justifying circumstance which exempts a person from criminal liability is found in this provision: "Any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office." The requisites of
the defense of fulfillment of duty are: (1) that the accused acted in the performance of a duty or in the lawful exercise of a right or duty; (2) that the injury caused or the offense committed be the necessary consequence
of the due performance of duty or the lawful exercise of such right.
The Solicitor General expressed the view, with reason, that Tacas acted in the performance of his duty. Again, We quote from the brief of the Solicitor General:
... The information clearly states so, thus: "That the crime was committed by the accused Gervacio Tacas in relation to his office as a policeman" (p. 2, Decision). And so do the facts he was awakened
from his sleep by the sound of gunfire followed by cries of a neighbor for help; he stood up, look out of the window, saw Pajela bleeding on top of a table about to be carried to his house; he grabbed his
armalite rifle, went out of the house, saw Bartolome Arellano with a shotgun leaving Pajela's yard, went after him, fired warning shots and asked him to surrender undisputed facts which clearly
show that Tacas acted in the performance of his duty.

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

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

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

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

The Case
Carmelo Catbagan appeals the May 19, 1999 Decision[1] of the Regional Trial Court (RTC) of Malolos, Bulacan (Branch 21), in Criminal Case Nos. 1082-M-98, 1083-M-98 and 1099-M-98. In these cases, he was
convicted of homicide, murder and frustrated murder, respectively.
The decretal portion of the RTC Decision reads as follows:
In sum and considering the foregoing findings, the Court hereby resolves and so states that the defense has not been able to overcome the moral certainty established upon the accuseds culpability. Stated otherwise,
the prosecution has successfully discharged its undertaking herein. Accordingly, this Court finds and so holds that accused Carmelo Catbagan is GUILTY beyond reasonable doubt of the crimes of Homicide in Crim.
Case No. 1082-M-98, Murder in Crim. Case No. 10[8]3-M-98 and Frustrated Murder in Crim. Case No. 1099-M-98.
In Criminal Case No. 1082-M-98, the Court hereby credits the accused with the mitigating circumstance of incomplete self-defense pursuant to Article 13, paragraph 1 of the Revised Penal Code. In which event, what
should be imposable as penalty is the minimum of Reclusion Temporal. Considering the application of the Indeterminate Sentence Law, accused Carmelo Catbagan is hereby sentenced to suffer the indeterminate
prison term of ten (10) years and one (1) day of Prision Mayor maximum to fourteen (14) years of Reclusion Temporal minimum.
In Criminal Case No. 1083-M-98, absent any circumstance that would aggravate the commission of the crime, the accused is sentenced to suffer the penalty of Reclusion Perpetua together with the accessory penalties.
In Criminal Case No. 1099-M-98, since the crime committed is Murder in its frustrated stage, it is the penalty next lower in degree that should be imposed, which is Reclusion Temporal. However, with the application
of the Indeterminate Sentence Law, accused Carmelo Catbagan is hereby sentenced to suffer the indeterminate prison term of ten (10) years of Prision Mayor medium to fifteen (15) years of Reclusion
Temporal medium.
In addition to the foregoing, the accused is also directed to pay the heirs of deceased Celso Suico the sum of P500,000.00 in loss of earning capacity, P50,000.00 as indemnity for Suicos death, and the further sum
ofP100,000.00 as and for moral damages. With respect to deceased Danilo Lapidante, the accused is ordered to pay his heirs the sum P400,000.00 in loss of earning capacity, the sum of P50,000.00 as indemnity for
Lapidantes death, the sum of P100,000.00 as moral damages, and also the amount of P50,000.00 x x x for actual damages. Finally, respecting complainant Ernesto Lacaden, the accused is directed to pay him the sum
ofP50,000.00 as and for moral damages and the sum of P6,400.86 as actual damages.
With costs against the accused.[2]
Except for the names of the victims, two (2) similarly worded criminal Informations[3] in Criminal Case Nos. 1082-M-98[4] and 1083-M-98,[5] both dated July 21, 1998, charged appellant as follows:

That on or about the 15th day of March, 1998, in the [M]unicipality of San Jose del Monte, [P]rovince of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with
a gun, caliber .9MM pistol, and with intent to kill one x x x, did then and there wilfully, unlawfully and feloniously, with evident premeditation and treachery, attack, assault and shoot with the said caliber .9MM pistol
said x x x, hitting the latter on the different parts of his body, thereby inflicting upon him mortal wounds which directly caused the death of the said x x x.[6]
For the third crime, the Information,[7] also dated July 21, 1998, charged appellant with frustrated murder allegedly committed in this manner:
That on or about the 15th day of March, 1998, in the [M]unicipality of San Jose del Monte, [P]rovince of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with
a caliber .9MM pistol, did then and there wilfully, unlawfully and feloniously, with intent to kill, evident premeditation and treachery, attack, assault and shoot with the said caliber .9MM pistol one Ernesto Lacaden y
Tacata, thereby inflicting upon him physical injuries, which ordinarily would have caused the death of the said Ernesto Lacaden y Tacata, thus performing all the acts of execution which should have produced the crime
of murder as a consequence, but nevertheless did not produce it by reason of causes independent of his will, that is, by the timely and able medical assistance rendered to said Ernesto Lacaden y Tacata which prevented
his death.[8]
Appellant was arraigned on August 26, 1998 in Criminal Case Nos. 1082-M-98 and 1083-M-98. With the assistance of counsel de oficio,[9] he pleaded not guilty to both charges.[10]Thereafter, he was arraigned in
Criminal Case No. 1099-M-98, in which, with the assistance of his counsel de oficio,[11] he also pleaded not guilty.[12]
Upon motion of appellant, the three cases were consolidated. After pretrial, trial on the merits ensued, and the lower court eventually promulgated its assailed Decision. Counsel[13] for appellant filed the Notice of
Appeal[14] on July 5, 1999, but upon discovering that it contained an error in the designation of the court to which the case was being appealed, he filed an amended Notice of Appeal on September 10, 1999.[15]

The Facts
Version of the Prosecution
In its Brief,[16] the Office of the Solicitor General (OSG) presents the prosecutions version of the facts as follows:
Danilo Lapidante, an employee of the Manila Water Company, held his birthday party on March 15, 1998, one day in advance of his actual birthdate. That was intended to accommodate his many relatives and friends
who trooped to his residence that Sunday at Block 5, Lot 28, Phase C-1 Francisco Homes, Barangay Mulawin, San Jose del Monte, Bulacan Province. As it was already summertime, and on account of the big
attendance, the party had to be held in a vacant space within the fenced perimeter, with vehicular and pedestrian steel gates. In front thereof was a narrow concrete street.
Inasmuch as Lapidante saw to it that drinks like gin and beer and appetizers were plenty, even before 10:00 A.M., inevitably, the revelers were already displaying excitement. Some were engaged in singing over a
karaoke, while one Sgt. Celso Suico of the Philippine Air Force and of the elite Presidential Security Group, who lived in another phase of the subdivision, demonstrated his exuberance by firing shots into the air with
his Armalite rifle. Since the gunshots continued to ring out, and election gun ban was then in effect, the attention of Carmelo Catbagan, an investigator of the Criminal Investigation Service, Philippine National Police,
whose residential unit was just one block away south of the Lapidantes, was called.
When, by 5:00 p.m., Catbagan went there to verify from the group who among them had been firing the rifle, no one of those within the fenced area gave a positive answer. The embar[r]assed Catbagan left the
place. Coincidentally, some minutes before that, Lapidante, driving his owner-type jeep, conducted home some of his guests. Accompanying him were Sgt. Suico and his companion Ernesto Jun Lacaden. Even as they
returned the Armalite to the PSGs residence at Phase M, Suico substituted it with a government-issued Springfield .45 caliber pistol which he tucked to his waistband as they went back to rejoin the party.
By about 5:30 p.m., while the celebrants were being entertained with a song by the eldest daughter of Lapidante, Catbagan with [Zosimo] (Jess) Fababier returned to Lapidantes place on board a motorized
tricycle. This time, after he alighted on the street in front, when Catbagan inquired about the gunshots of the Armalite, Sgt. Suico answered that Its nothing; its just a part of the celebration. Suddenly, a piece of stone
hurled from the direction of the celebrants house landed on a tree and thence to the body of Catbagan. Irritated and reacting thereto, the CIS agent directed Fababier to look for the one who threw the stone.

At that moment, Sgt. Suico got out of the pedestrian steel gate and extended his hand towards Catbagan in the street as he introduced himself as being a PSG. Completely ignoring the gesture of the latter, Catbagan
drew out his .9mm automatic pistol and with both hands holding the gun, fired successively at Suico, who when hit stretched out his hand, shouting Huwag (Dont) Pare. Despite this Catbagan fired more shots at the
victim who fell on the pavement, bloodied and dying from mortal wounds.
As the shots were fired, Jun Lacaden who was taking a nap on the front seat of the owner-type jeep parked on the other side of the street, in front of the residential unit of Aida Villanueva, was abruptly awakened. Not
fully aware of what happened, he disembarked therefrom without knowing what to do. Unexpectedly, two shots were also fired at him by Catbagan. One bullet found its mark in the body of Jun Lacaden who then fell
down.
Almost simultaneously, Catbagan directed his attention to Lapidante who was then inside their compound in the vicinity of their steel main gate. Upon the prompting of his wife Rosita for him to run and evade the
assailant, the celebrant turned towards the main door of their house. But before he could reach the safety of their abode, two rapid shots were aimed by Catbagan at him, one of which hit him in the upper part of his
body.
After causing the mayhem, Catbagan then proceeded eastward to the main road. Thereupon, Charles Lacaden picked up the weapon of the PSG man and threw it to a vacant lot somewhere at the rear of the house and
lot of Lapidante. As a consequence of the injuries they sustained, Sgt. Suico died on the spot; Lapidante later died in the hospital in Lagro, Quezon City; whereas Jun Lacaden had to be treated and confined at the East
Avenue Medical Center, Quezon City.
Police investigators went to the scene and there recovered some pieces of evidence.
The .45 caliber Springfield pistol of Suico was retrieved in a place at the back of the Lapidante residence. With a bullet vertically standing on the chamber, it had misfired due to some vital defects. There were six (6)
live ammunitions of the .45 caliber pistol excluding the vertical one. No empty shell of .45 caliber pistol were recovered. There were nine (9) empty shells of the .9 mm pistol; and a deformed slug of the same weapon,
aside from many shells from the Armalite rifle.
Upon examination of Sgt. Suicos body, Dr. Dominic Aguda of the National Bureau of Investigation found four (4) gunshot wounds, to wit:
No. 1 - left upper chest;
No. 2 - left chest above left nipple;
No. 3 - left anterior portion of forearm;
No. 4 - right palm (inside)
Dr. Aguda concluded that the victim died from massive bleeding of the four injuries. The most fatal was wound No. 1 as it perforated the aorta and the right upper lung. Death therefrom was instantaneous. He opined
that this wound was inflicted in a level from a higher plane, whereas the others may have been inflicted on some level with the victim. Suico died of massive bleeding.
As regards the victim Lapidante, as shown by Dr. Agudas schematic sketch and the post-mortem autopsy report, the entry wound was at the left side of the back, exiting at the right anterior portion of the chest in a
forward and upward trajection. The bullet hit the upper left tube of the left lung and then penetrated the upper lobe of the right lung. The victim also died from massive bleeding.
From the shapes and measurement of the wound of entry, Dr. Aguda stated that the (weapon) firearm used in the shooting of the two victims were probably the same, they being approximately 1 x 1 cm.

With respect to Jun Lacaden, Dr. Cristina Atienza of the East Avenue Medical Center found that he was hit at the right side of the back, the scapular and the bullet exited at the uppermost part of the left arm, near the
armpit. She said that as the slug entered the thoracic cavity, they had to insert a tube to evacuate blood. Said victim was confined for more than one week, and it would have taken another 30 days for the victim to
resume his usual activity.[17]

Version of the Defense

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

The accused, CARMELO CATBAGAN, testifying on his behalf, averred that he is a regular agent of the Criminal Investigation and Detection Group (CIDG), with a rank of Crime Investigator I. As a regular agent of
the CIDG, he was issued two (2) official firearms, a 9MM Jericho pistol and a.38 caliber revolver. His principal duties were to protect the innocent against deception, [and] against violence, arrest felons, and in general,
to respond to all calls for public assistance.
On March 15, 1998, he was at his residence at Block 5, Lot 11, Phase 6-1, Francisco Homes, San Jose del Monte, Bulacan, tending to his five (5) children. His wife was then in the province. At around 9:00 to 11:00 in
the morning, he heard several burst[s] of gunfire coming from the direction of the rear portion of his house. A neighbor, Ernesto Purbos, then came to his house complaining about the gunshots. Manong Erning
wailed that the gunshots might accidentally hit the children playing in the street. Having told from where the gunshots came from, he pacified the complainant telling him that the revelers were just engaged in
merrymaking and that they will just stop later on. Ernesto Purbos then went home.
The peace in the vicinity was again disturbed at around 4:00 in the afternoon of the same day. Loud burst of rapid gunshots, to the tune of the song Lets Go, were again heard coming from the same direction as that
in the morning. From his experience, he knew that the firearm used was an armalite (M-16). Two of their neighbors came to him complaining about the gunshots. He advised them to go to the barangay captain and he
will just follow after finishing his chores. He then heard a woman scream, complaining that the shots were being directed towards the firewall of the house neighboring that of the Lapidantes. Ernesto Purbos likewise
returned, echoing his previous complaint about the gunshots. He assured Purbos that he would act on his complaint, but first he would go to the barangay captain to report the incident. He then got his service firearm
and went out. On his way to the house of the barangay captain, he met Zosimo Pavabier, who likewise complained of the gunshots. He asked Pavabier to accompany him and the two of them proceeded to the house of
the said official. When they reached their destination, however, the wife of the barangay official told them that her husband has gone to the Police on the Block Headquarter. Learning the purpose of their visit, the wife
told them to just proceed to the vicinity in question as her husband might already be there. On their way, they went by the barangay hall to fetch some tanods, but the place was closed. They then proceeded to the
house of the Lapidantes.
Upon reaching the house of the Lapidantes, Catbagan and Pavabier noticed that the Barangay Captain was not yet there. They likewise noticed that there were several persons having a drinking spree inside the
compound. Catbagan introduced himself as a CIS and inquired upon the group who fired the gunshots. The merrymakers, however, ignored him and laughed. As he was telling the group that: Dont you know there
are many residents here and you might hit somebody, a fist sized stone was thrown which hit his left shoulder. The stone came from the rear of the house of the Lapidantes. Alerted by the hostility of the crowd, he
instructed Pavabier to look for the one who threw the stone at him. As Pavabier was about to comply with his instructions, Danilo Lapidante emerged from the side of his house and rushed to where he was standing,
uttering: ano ba ang problema pare? About the same time, two more persons suddenly came out of the compound of the Lapidantes, rushing and encircling him. One of the aggressors, Ernesto Lacaden, was toting an
ice-pick on one hand and positioned himself at his side. The other, whose identity he did not kn[o]w at that moment, went straight to him, drew a gun from his waist and cocked it, after which, aimed the pistol at him,
uttering Pare PSG ito, in an arrogant voice. Threatened of his safety, he drew his own gun while stepping backward and fired at the aggressors.
Simultaneously, Danilo Lapidante retreated towards his house, shouting: Akina yung mahaba, yung mahaba, while Jun Lacaden attacked him coming from the side, with the ice-pick. Catbagan side stepped and fired
a shot at Lacaden before turning his attention at Lapidante. He fired a warning shot, uttering: Tumigil ka, huwag kang kikilos. Lapidante, however, did not heed Catbagans warning and continued rushing towards his
house, as if to get something. Fearing that Lapidante might be able to get hold of the long gun, Catbagan fired a shot at him once.
Concerned for his safety and that of his family, Catbagan brought his five children to the house of his sister in Malabon, Metro Manila. He then surrendered himself and his firearms to his superior officer at the CIDG
Office.
ATTY. VIRGILIO PABLICO Y TABALBA, Chief of the CIDG Legal Office and immediate superior of the accused, testified on the latters official duties and functions as well as his voluntary surrender on March 16,
1998[.] Accordingly, accused Carmelo Catbagan was appointed as a regular and non-organic member of the CIDG, with a rank of Criminal Investigator I. His official functions include the authority to conduct
investigation of cases involving violations of the Revised Penal Code and other special laws, to effect arrest and to conduct search in accordance with existing rules, to take sworn statements and to appear as a witness in
appropriate forum. As a regular agent, Catbagan was issued and authorized to carry a firearm. The issued firearm to Catbagan was a 9MM Jericho pistol, with Serial No. 000748. Catbagan, as a CIDG agent, was
likewise deputized by the COMELEC and granted an exemption to carry firearm during election period.
On March 15, 1998, at around 8:00 to 10:00 in the evening, he received a telephone call from Agent Catbagan, informing him that he was involved in a shooting incident, wherein he was able to shoot three (3)
persons. Two (2) of the protagonists allegedly died and the other was wounded and taken to a hospital. Catbagan intimated that he wanted to be put under his custody as soon as a he made arrangements for his
childrens security. On March 16, 1998, at around 1:00 in the afternoon, Catbagan presented himself to Police Superintendent Edgardo Acua together with his service firearm.[19]

Ruling of the Trial Court

The RTC held that appellant did not know who had fired the gunshots at Lapidantes party; thus, he could not claim that he had gone there to perform his duty to make an arrest. Consequently, it brushed aside his
defense of fulfillment of duty, or lawful exercise of a right or office. It did not give credence, either, to his invocation of self-defense.
With respect to Celso Suico in Criminal Case No. 1082-M-98, the trial court ruled that there was unlawful aggression on the part of the victim, but that the means employed to repel such aggression was
unreasonable. It entertain[ed] serious doubts on the right of the [appellant] to continue firing at Suico after the latter was dispossessed of his gun due to the injuries received from the gunfire of the assailant. [20] It
credited appellant with incomplete self-defense, because he supposedly lost the right to kill or even wound the victim after the unlawful aggression had ceased.
The RTC refused to qualify the crime against Suico. Ruling that there had been no evident premeditation and treachery in the killing, it found appellant guilty only of the crime of homicide.
As regards the victim Danilo Lapidante in Criminal Case No. 1083-M-98, he was undisputedly unarmed, as he was inside his own premises -- within his fenced front yard -- at the time of the incident. Thus, the
lower court found no act of aggression on his part. It held that the belief on the part of [appellant] that the victim was about to retrieve a rifle from the doorside of the house, existed only in his
imagination.[21] Consequently, there was no moment for [appellant] to validly state that his own life [was] in imminent danger from Lapidante.[22]
Aside from rejecting self-defense, the trial court also held that treachery had attended the killing, because the unarmed victim had unexpectedly been shot while his back was towards appellant.
Finally, in Criminal Case No. 1099-M-98, the court a quo found that Ernesto Lacaden had been shot in the back, apparently while in the act of fleeing from the fury of gunfire from [appellant].[23] It did not accept
the allegation that the victim had been carrying an ice pick at the time of the shooting. Nonetheless, it explained that even if he indeed had one at the time, he could not have done any real harm to appellant who was
just too far from him. Absent any clear and convincing proof that Lacaden committed unlawful aggression, self-defense -- whether complete or incomplete -- could not be appreciated.
The RTC found the crime against Lacaden to be qualified by treachery, as he had not posed any imminent danger to appellant. It ruled that treachery was proven by the following circumstances: (1) the fact that
the victim was running away from the scene of the crime; and (2) appellants use of his .9 mm automatic pistol, a lethal weapon used to wound the formers vital organs. Since death did not ensue by reason of causes
independent of the will of appellant, the court a quo found him guilty of frustrated murder.
Hence, this appeal.[24]

The Issues
Before us, appellant assigns to the trial court the following alleged errors for our consideration:
I
The court a quo gravely erred in finding accused-appellant Carmelo Catbagan guilty beyond reasonable doubt of the offenses charged in Criminal Case Nos. 1082-M-98, 1083-M-98 and 1099-M-98, respectively.
II
The court a quo gravely erred in failing to rule that accused-appellant Carmelo Catbagan acted in the fulfillment of his sworn duties and/or acted in self-defense in the commission of the offenses charged.
III

Granting arguendo that the accused-appellants guilt was proven beyond reasonable doubt, the court a quo still committed a reversible error in not considering the attendance of the mitigating circumstance of voluntary
surrender in the imposition of the appropriate penalties for the offenses proved during the trial. [25]
In sum, the issues to be resolved are as follows: 1) whether appellant was justified in shooting the victims as a direct result of his fulfillment of a lawful duty and self-defense; 2) whether he could be credited
with the mitigating circumstance of voluntary surrender; and 3) whether the characterization of the crimes and penalties imposed by the trial court was correct.

The Courts Ruling

The appeal is partly meritorious.

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

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

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

Unlawful aggression;

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

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

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

Under the given situation wherein the Sergeant cocking the pistol was one who was trained, and skilled in the handling of guns, plus the fact that he was drunk, the Court cannot blame accused Catbagan to believe and
fear that Suico would attack him in that mock introduction.[38]
The prosecution presented, in fact, conflicting accounts of how Suico had been shot. The shooting allegedly happened after he had offered a handshake to appellant,[39] according to Rosita Lapidante, the wife of
another victim. On the other hand, Charlie Lacaden, the brother of still another victim, gave testimony that conflicted with hers. Suico was allegedly shot by appellant when the former turned his back to the latter.
On the other hand, appellant[40] and Defense Witness Zosimo Pavabier[41] positively and consistently testified that it was Suico who had first drawn and aimed his gun at appellant. This assertion was confirmed by
the physical evidence that the victims gun had a live bullet sandwiched between its breechblock and chamber.[42] This fact proves that the gun was cocked and fired, but that the bullet was jammed in the process.
The prosecution tried to explain this occurrence by inconsistent and incongruous statements. According to the testimony of Rosita, Charlie took the gun from Suicos belly then aimed it at appellant, but the gun
did not fire because it was defective.[43] According to the testimony of Charlie, on the other hand, he took the gun because he was afraid that appellant would come back, but that he later threw it towards the rear portion
of the house.[44] Thus, the RTC concluded:
As regards the proof that Suicos gun misfired due to vital defects in its mechanism, the Court suspects that the firearm was tampered with to create the scenario that the PSG man was without fault. In fact, Mrs.
Lapidante and Charles Lacadens testimonies regarding what was done to the gun after the incident are in conflict with each other.[45] (Italics supplied)
Unlawful aggression is an actual physical assault, or at least a threat to inflict real imminent injury, upon a person. [46] In case of threat, it must be offensive and strong, positively showing the wrongful intent to
cause injury -- as in this case. Thus, Suicos act of aiming a cocked gun at appellant is sufficient unlawful aggression.
The second element of self-defense -- reasonable necessity of the means employed to prevent or repel it -- requires the following: 1) a necessity of the course of action taken by the person making the defense and 2)
a necessity of the means used. Both the course of action taken and the means used must be reasonable.[47]
Appellant argues that he was justified in wounding Suico, because the latter was armed with a deadlier weapon and was still persistently aggressive after being shot the first time. The former maintains that [t]he
fact that [he] struck one blow more than [what] was absolutely [necessary] to save his own life, or that he failed to hold his hand so as to avoid inflicting a fatal wound where a less severe stroke might have served the
purpose, would not [negate] self-defense, because [he], in the heat of an encounter at close quarters, was not in a position to reflect coolly or to wait after each blow to determine the effects thereof.[48]
The means employed by the person invoking self-defense is reasonable if equivalent to the means of attack used by the original aggressor.[49] Whether or not the means of self-defense is reasonable depends upon
the nature or quality of the weapon, the physical condition, the character, the size and other circumstances of the aggressor; as well as those of the person who invokes self-defense; and also the place and the occasion of
the assault.[50]
The RTC made a definitive finding on the unreasonableness of the means employed by appellant as follows:
However, what followed, as testified by witnesses was that Catbagan continued firing even while Suico was pleading Huwag pare! with outstretched hand and open palm of his right hand. While the accused asserted
that he had to fire his gun and hit Suico with more shots to totally disable him, the same cannot be believed by the Court, if we take stock of Dr. Agudas testimony that with the injured arm and that on the chest being
inflicted with the first double tap shots; the victim would have had much difficulty to retaliate. In fact, Catbagan himself stated on clarification questions that the .45 caliber gun of the victim fell already so that the
threat of continued aggression was no longer present.
xxx

xxx

xxx

On this point, the Court entertains serious doubts on the right of the accused to continue firing at Suico after the latter was dispossessed of his gun due to the injuries received from the gunfire of the
assailant. Additionally, we cannot accept as credible Catbagans statement that he had to fire again at Suico inasmuch as the latter had stooped acting to pick up his own pistol from the pavement. If ever the victim was
positioned that way, it was more of the impact of the bullets that hit him. The logical explanation can be derived from the presence of the entry wound in the inside of Suicos right palm.[51]

These findings are well-supported by the evidence on record. Clearly, the nature and the number of gunshot wounds -- debilitating, fatal and multiple -- inflicted by appellant on the deceased shows that the means
employed by the former was not reasonable and commensurate to the unlawful aggression of the latter. The unreasonableness becomes even more apparent from the fact, duly admitted by appellant himself, that Suico
had obviously been inebriated at the time of the aggression. It would have thus been easier for the former to have subdued the victim without resorting to excessive means.
Finally, as to the element of lack of sufficient provocation on the part of the person resorting to self-defense, appellant has sufficiently established that he went to the house of the Lapidantes to find out who had
fired the gunshots earlier that day. There was therefore absolutely no provocation from him, either by unjust conduct or by incitement, that would justify Suicos acts of cocking and aiming a gun at him.
Not having proven all the elements of self-defense, appellant cannot use it to justify sufficiently his fatal shooting of Suico. Having proven a majority of the elements, however, the former may still be credited with
a mitigating circumstance in accordance with Article 13[52] of the RPC.

Circumstances Surrounding
the Shooting of Lapidante
With respect to Lapidante, he allegedly rushed towards his house to get hold of the mahaba, so appellant had no other recourse but to shoot him. The purpose of the victim in rushing towards his house was
supposedly to recover the advantage he had previously enjoyed. Hence, it is argued that unlawful aggression was present.
We disagree with appellants averments. Unlawful aggression presupposes an actual, sudden and unexpected attack or imminent danger thereof. Such aggression refers to an attack that has actually broken out or
materialized or is at the very least clearly imminent; it cannot consist merely of any oral threat or intimidating stance or posture. [53]
In this case, the RTC was categorical in ruling that the perceived danger was more in the mind of appellant than in reality. The circumstances did not point to any actual or imminent peril to his life, limb or
right. On the part of Lapidante, the act of running towards his house can hardly be characterized as unlawful aggression. It could not have imperiled appellants life.
In a previous case,[54] this Court ruled that a threat even if made with a weapon or the belief that a person [is] about to be attacked, is not sufficient, but that it is necessary that the intent be ostensibly revealed by
an act of aggression or by some external acts showing the commencement of actual and material unlawful aggression. [55] We agree with the RTCs ratiocination, which we quote:
With respect to the incident involving the victim Lapidante, it is not disputed that he was unarmed as he was inside his own premises within the fenced area in front of his house. What acts of aggression against
Catbagan which he did are not apparent to us. To this Court, the belief on the part of Catbagan that the victim was about to retrieve a rifle from the doorside of the house, existed only in his imagination.
Aside from its intrinsic ambiguity, the claims of the defense witnesses about the alleged utterance of Lapidante about Ang mahaba! an[g] mahaba! do not sit well with this Court. Indeed, we are not convinced that he
could have uttered that statement since the evidence points to the fact that he and his friends had just arrived from another phase of the subdivision upon having delivered thereat, the Armalite of Suico. On the
contrary, Lapidante appeared to have been gripped by fear and was obviously trying to escape from harm. Indeed, there was no moment for Catbagan to validly state that his own life [was] in imminent danger from
Lapidante.[56]
Neither do we accept the contention that unlawful aggression by Lapidante was shown by his act of rushing towards his house for the purpose of taking a more advantageous position. Referred to here is the rule
that if it is clear that the purpose of the aggressor in retreating -- or, as in this case, Lapidantes rushing towards his house -- is to take a more advantageous position to ensure the success of the attack already begun, the
unlawful aggression is considered still continuing; and the one resorting to self-defense has a right to pursue and disable the former.[57]
Obviously, this rule does not apply to Lapidante, because 1) there was no clear purpose in his act of retreating to take a more advantageous position; and 2) since he never attacked appellant in the first place, the
former could not have begun any unlawful aggression and, hence, would not have had any reason to take a more advantageous position. How could there have been a continuation of something that had never been
started? If any aggression was begun in this case, it was by Suico, not by Lapidante.
Hence, no unlawful aggression by Lapidante was shown. Because the presence thereof is a statutory and doctrinal conditio sine qua non of the justifying circumstance of self-defense[58] -- complete or incomplete - we need not examine the presence of the other requisites.

Circumstances Surrounding
the Shooting of Lacaden
Appellant asserts that Lacaden attacked him with an ice pick from the side. Allegedly, this act clearly showed unlawful aggression on the latters part. All the pieces of evidence on record, however, point to the
absence thereof.
Most crucial is the position of the gunshot wound. As testified to by the doctor who had treated the victim, its point of entry was on the right side of the back, just below the scapula.[59] This incontestable fact belies
the claim of appellant that he was attacked by Lacaden with an ice pick. Such attack would have required the latter to face him; and, logically, a gunshot entry wound would have been in the front -- not in the back -portion of Lacadens body. The wound in the back of the victim clearly shows that he was shot while his back was turned to appellant. Hence, there was no unlawful aggression on the part of the former.
Neither was any ice pick presented in the proceedings before the RTC. Appellant maintains that his testimony, coupled with that of Pavabier, is sufficient to establish the existence of the weapon. But the
prosecution witnesses, including the victim himself, testified otherwise -- that there was no unlawful aggression during the incident, much less with the use of an ice pick. The RTC held thus:
In the case of Jun Lacaden, he was shot in the back which could only corroborate the evidence to the effect that he was also in the act of fleeing from the fury of gunfire from Catbagan. As to the allegation of the latter
that Jun Lacaden had an icepick, that claim is rather nebulous. Firstly, as veteran criminal investigator, he should have taken, kept and presented that said instrument to augment his legal excuse. Secondly, if really
there was one, it is rather surprising why he did not demand Jun Lacaden for its surrender initially as he passed thru the pedestrian steel door and subsequently while the latter had positioned himself near the ownertype jeep.
More importantly, granting that Jun Lacaden had an icepick, and/or had any design to launch an attack against Catbagan, the former was just too far a distance away to do real harm to the accused. From 6-7 meters,
as clarified from the accused himself, it is ridiculous for us to believe that Jun Lacaden could stab him. More so because the accused himself testified that the two arms of Jun Lacaden were raised upward which is not to
mention that Catbagan had already demonstrated his proficiency and accuracy in the use of his .9 mm automatic pistol. Thus, there was, like that of Lapidante, no occasion to find as existing, the element of unlawful
aggression.[60]

him.

Appellant has presented no sufficient reason to overturn these conclusive findings of the trial court. Aside from being completely in accord with logic and human experience, they are too solid to be debunked by

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

At the time of his surrender, appellant had not actually been arrested. He surrendered himself and his firearm to a person in authority, the chief of the Assistant Directorate for Intelligence of the Philippine
National Police. Finally, the surrender was voluntary and spontaneous; it thus showed an intent to surrender unconditionally to the authorities. In fact, in the aforementioned Progress Report, appellant had given the
same narration of events he later gave in court; moreover, he owned responsibility for the shooting. Thus, we credit him with the mitigating circumstance of voluntary surrender.

Final Issue:
Crimes and Penalties
Appellant was convicted of homicide, murder, and frustrated murder for the shooting of Suico, Lapidante and Lacaden, respectively. In determining the crimes committed and in imposing the proper penalties, it
is necessary to look into the qualifying circumstances alleged in the three Informations. Treachery and evident premeditation were both alleged; thus, there is a need to ascertain their presence or absence in the
commission of the acts, in order to determine the crimes committed by appellant.
To establish treachery, the following must be proven: 1) the employment of such means of execution as would give the person attacked no opportunity for self-defense or retaliation; and 2) the deliberate and
conscious adoption of the means of execution.[66] It is also the running case law that where treachery is alleged, the manner of attack must be proven. [67] Such attack must be sudden and unexpected and without the
slightest provocation on the part of the victim, who is thus deprived of any real chance for self-defense, thereby ensuring the commission of the crime without risk to the aggressor.[68]
With respect to the shooting of Suico, there was no treachery. The shooting was perpetrated in a frontal encounter as shown by the location of his wounds. Appellant did not make any deliberate, surprise attack
against him or consciously adopt a treacherous mode thereof. As established, he shot the victim after the latter had aimed, cocked and fired a gun at him.
As to the shooting of Lapidante, the RTC qualified the crime to murder because of the presence of treachery. According to the trial court, the shooting was unexpected, he was unarmed, and his back was turned
towards appellant when the incident occurred. Treachery was also appreciated in the shooting and wounding of Lacaden, since he had been shot at the back. Further, even if he had posed no imminent danger to
appellant, the former was nevertheless shot with a .9 mm automatic pistol -- a lethal weapon. For this act, the latter was convicted of frustrated murder.
The mere fact that the attack against Lapidante and Lacaden was perpetrated when their backs were turned did not by itself constitute treachery or alevosia.[69] Whether the mode of attack was consciously
adopted, and whether there was risk to the offender, must be taken into account. [70] Treachery cannot be considered when there is no evidence that the accused had resolved to commit the crime prior to the moment of
the killing; or that the death of the victim was the result of premeditation, calculation or reflection.[71]
In this case, it is evident that the decision to shoot Lapidante and Lacaden was suddenly arrived at after the confrontation with Suico had already occurred. Even if the positions of the victims were vulnerable,
there was still no treachery, as appellant did not deliberately adopt such mode of attack. Its presence was negated by the fact that the shootings had sprung from the unexpected turn of events. The treacherous
character of the means employed does not depend upon its result, but upon the means itself -- upon appellants purpose in employing it.[72]
Treachery cannot be appreciated where, as in this case, there is nothing in the records that shows that appellant pondered upon the mode or method of attack to ensure the wounding and the killing of the victims;
or to remove or diminish any risk to himself that might arise from the defense that they might make. [73] His decision to shoot them was clearly sudden. In the absence of treachery, the killing of Lapidante and the
wounding of Lacaden cannot be qualified to murder and frustrated murder, respectively.
The allegation of evident premeditation was correctly rejected by the lower court. For this aggravating circumstance to be appreciated, the following must be proven: 1) the time when the accused decided to
commit the crime; 2) an overt act manifestly indicating that the accused clung to such determination; and, 3) between the decision and the execution, a sufficient lapse of time that allowed time to reflect upon the
consequences of the act contemplated.[74] None of these elements has been established in the case at bar.
Undeniably, the shooting of the victims was done without any prior plan to kill or attack them. As previously stated, appellant began shooting at them after a cocked gun had been aimed and fired at him. This fact
negates any finding that he had already previously conceived the shooting, and that he then manifestly clung to his determination to commit the crime after a sufficient lapse of time.
Having rejected both treachery and evident premeditation in the killing of Suico and Lapidante, we hold appellant guilty only of homicide in both cases. But for the shooting of Lacaden, a careful review must be
made of the crime that was actually committed. The RTC charged him with frustrated murder and found him guilty thereof; but, as ruled above, no qualifying circumstance was proven. Thus, his crime can only be
frustrated homicide, in which evidence of intent to kill is essential, however.[75] It bears stressing that such intent determines whether the infliction of injuries should be punished as attempted or frustrated murder,
homicide or parricide; or as consummated physical injuries.[76]

Homicidal intent must be evidenced by acts that, at the time of their execution, are unmistakably calculated to produce the death of the victim by adequate means.[77]
The principal and essential element of attempted or frustrated homicide or murder is the assailants intent to take the life of the person attacked.[78] Such intent must be proved clearly and convincingly, so as to
exclude reasonable doubt thereof.[79]
Although the injury sustained by Lacaden was inflicted by appellant, the facts do not support a finding that the latter had been impelled by an intent to injure to the point of killing the former. The intent to kill is
absent in this case. It was found that the shooting was sudden and unexpected, having been brought about by a confrontation between appellant and Suico and the commotion that ensued. The absence of such intent
was, in fact, even more apparent in the testimony of appellant, who said therein that he did not even look at the victim anymore. The formers attention was concentrated on the latter, who was shouting, Ang mahaba,
ang mahaba![80]
The intent to kill, an essential element of the offense of frustrated or attempted homicide, must be proved by clear and convincing evidence and with the same degree of certainty as that required of the other
elements of the crime.[81] The inference that such intent existed should not be drawn in the absence of circumstances sufficient to prove it beyond reasonable doubt. If it was absent but wounds were inflicted, the crime
is not frustrated murder, but only physical injuries.[82] In this case, the expert opinion of the doctor who treated Lacaden was that it would take the latter thirty days to heal and recover from the lone gunshot wound and
to resume his normal work.[83] Thus, a finding of less serious physical injuries[84] is proper.
Although the charge in the instant case is frustrated murder, a finding of guilt for the lesser offense of less serious physical injuries may be made, considering that the essential ingredients of this lesser offense are
necessarily included in or form part of those constituting the graver one.[85] In the same manner, a conviction may be for slight or serious physical injuries in a prosecution for homicide or murder, inasmuch as the
infliction of the former, when carried out to the utmost degree, could lead to the latter offense. Such conviction may be made, without intent to kill -- an essential element of the crime of homicide or murder.[86]
To summarize, in Criminal Case No. 1082-M-98, appellant is found guilty of homicide, for which the penalty prescribed is reclusion temporal.[87] Since he proved a majority of the elements of self-defense -unlawful aggression and lack of sufficient provocation -- the penalty prescribed by law may be lowered by two degrees[88] to prision correccional. Considering further the presence of the generic mitigating circumstance
of voluntary surrender without any aggravating circumstance, the penalty shall be imposed in its minimum period. [89] The Indeterminate Sentence Law is applicable in this case. Hence appellant should be sentenced to
an indeterminate sentence, the maximum term of which shall be that which may properly be imposed under the Revised Penal Code; and the minimum of which shall be within the range of the penalty next lower than
that prescribed by the Code -- in this case, arresto mayor.
In Criminal Case No. 1083-M-98, appellant is found guilty of homicide, for which the penalty prescribed by law is reclusion temporal.[90] Again, considering the presence of the generic mitigating circumstance of
voluntary surrender without any aggravating circumstance, the penalty shall be imposed in its minimum period.[91] The Indeterminate Sentence Law is also applicable to this case. Hence, appellant should be sentenced
to an indeterminate sentence, the maximum term of which shall be that which may properly be imposed under the Revised Penal Code; and the minimum of which shall be within the range of the penalty next lower
than that prescribed by the Code -- in this case, prision mayor.
Finally, as to Criminal Case No. 1099-M-98, appellant is found guilty of less serious physical injuries, for which the penalty prescribed by law is arresto mayor. Again, considering the presence of the generic
mitigating circumstance of voluntary surrender without any aggravating circumstance, the penalty shall be imposed in its minimum period
Coming now to pecuniary liabilities, the heirs of the victims Suico and Lapidante in Criminal Case Nos. 1082-M-98 and 1083-M-98, respectively, are entitled to a fixed sum representing civil indemnity for
death. Death indemnity is currently fixed at P50,000.[92] This kind of civil indemnity is separate and distinct from other forms of indemnity for damages and is automatically awarded without need of further proof
other than the fact of death and the responsibility of the accused therefor.
Proof of moral damages was presented through the testimony of Lapidantes wife. The RTCs award of such damages herein is excessive, however, considering that it is not meant to enrich an injured
party. [93] Hence, in Criminal Case No. 1083-M-98, the amount thereof should be reduced to P50,000. In the other two cases, there being no proof of moral damages, the award therefor is deleted. Moral damages
cannot be granted in the absence of proof.[94]
It is also proper to award compensation to the heirs of the victims for loss of earning capacity, pursuant to Article 2206 of the Civil Code.[95] The documents presented, coupled with the testimonies of Elsie Suico
and Rosita Lapidante, are sufficient bases for the award.
At the time of his death, Suico, forty-four (44) years old,[96] was receiving a monthly take-home pay of P942.70,[97] as proven and admitted. To compute his net earnings, we multiply this amount by 12 to get his
annual income; then deduct the reasonable and necessary living expenses which, in the absence of contrary evidence, is pegged at 50 percent of the earnings. Applying the formula Net earning capacity = [2/3 x (80
age at time of death) x (gross annual income reasonable and necessary living expenses)],[98] we arrive at a loss of earning capacity ofP135,748.80.

Applying the same formula to Lapidante who was thirty-five (35) years old[99] at the time of his death, with a monthly take-home pay of P10,004.24[100] and an additional income of P1,000.00 for slaughtering
pigs,[101] we arrive at a loss of earning capacity of P1,980,763.20. His heirs are also entitled to actual damages in the amount of P13,850 for hospital and funeral expenses. These expenses are supported by
receipts.[102] The receipt[103] for the amount of P6,000 -- which also mentions a remaining payable balance of P6,500 -- was not properly identified and characterized; thus, we should exclude it from the award of actual
damages.
Finally, with respect to the civil indemnities for Lacaden, the award for actual damages -- for hospitalization and medicines -- should be P4,589.86, as only this amount was properly covered by receipts.[104] The
amount of P1,831, allegedly for hospital services, was included in a list presented by the victim, but was not properly supported by any receipt or record; thus, we cannot grant such amount.
WHEREFORE, the appeal is partly GRANTED and the assailed Decision MODIFIED. In Criminal Case No. 1082-M-98, Appellant Carmelo Catbagan is found guilty beyond reasonable doubt of homicide and
is SENTENCED to a prison term of one (1) month and one (1) day arresto mayor as minimum; to one (1) year and six (6) months of prision correccional as maximum. In Criminal Case No. 1083-M-98, he is found
guilty beyond reasonable doubt of homicide and SENTENCED to a prison term of six (6) years and one (1) day of prision mayor as minimum; to twelve (12) years and one (1) day of reclusion temporal as maximum. In
Criminal Case No. 1099-M-98, he is found guilty of less serious physical injuries and SENTENCED to a prison term of one (1) month and one (1) day of arresto mayor.
Appellant is also ORDERED to pay the following amounts: 1) to the legal heirs of Suico, P50,000 as indemnity ex delicto and P135,748.80 for loss of earning capacity; 2) to the legal heirs of Lapidante, P13,850 for
actual damages, P50,000 as indemnity ex delicto, P50,000 as moral damages, and P1,980,763.20 for loss of earning capacity; and 3) to Lacaden, P4,589.86 for actual damages. Costs against appellant.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-4445

February 28, 1955

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MANUEL BERONILLA, FILIPINO VELASCO, POLICARPIO PACULDO, and JACINTO ADRIATICO, defendants-appellants.
Agripino A. Brillantes, Valera, Eufemio and Bernardez for appellants.
Prospero C. Sanidad and Claro M. Recto for defendant.
Office of the Solicitor General Juan R. Liwag and Solicitor Jaime R. de los Angeles and Martiniano P. Vivo for appellee.
REYES, J.B.L., J.:
This is an appeal by accused Manuel Beronilla, Policarpio Paculdo, Filipino Velasco, and Jacinto Adriatico from the judgment of the Court of First Instance of Abra (Criminal Case No. 70) convicting them of murder for
the execution of Arsenio Borjal in the evening of April 18, 1945, in the town of La Paz , Province of Abra.
Arsenio Borjal was the elected mayor of La Paz, Abra, at the outbreak of war, and continued to serve as Mayor during the Japanese occupation, until March 10, 1943, when he moved to Bangued because of an attempt
upon his life by unknown persons. On December 18, 1944, appellant Manuel Beronilla was appointed Military Mayor of La Paz by Lt. Col. R. H. Arnold, regimental commander of the 15th Infantry, Philippine Army,
operating as a guerrilla unit in the province of Abra. Simultaneously with his appointment as Military Mayor, Beronilla received copy of a memorandum issued by Lt. Col. Arnold to all Military Mayors in Northern
Luzon, authorizing them "to appoint a jury of 12 bolomen to try persons accused of treason, espionage, or the aiding and abetting (of ) the enemy" (Exhibit 9). He also received from the Headquarters of the 15th

Infantry a list of all puppet government officials of the province of Abra (which included Arsenio Borjal, puppet mayor of La Paz), with a memorandum instructing all Military Mayors to investigate said persons and
gather against them complaints from people of the municipality for collaboration with the enemy (Exhibit 12-a).
Sometime in March, 1945, while the operations for the liberation of the province of Abra were in progress, Arsenio Borjal returned to La Paz with his family in order to escape the bombing of Bangued. Beronilla,
pursuant to his instructions, placed Borjal under custody and asked the residents of La Paz to file complaints against him. In no time, charges of espionage, aiding the enemy, and abuse of authority were filed against
Borjal; a 12-man jury was appointed by Beronilla, composed of Jesus Labuguen as chairman, and Benjamin Adriatico, Andres Afos, Juanito Casal, Santiago Casal, Benjamin Abella, Servillano Afos, Mariano Ajel,
Felimon Labuguen, Felix Murphy, Pedro Turqueza, and Delfin Labuguen as members; while Felix Alverne and Juan Balmaceda were named prosecutors, Policarpio Paculdo as clerk of the jury, and Lino Inovermo as
counsel for the accused. Later, Atty. Jovito Barreras voluntarily appeared and served as counsel for Borjal. Sgt. Esteban Cabanos observed the proceedings for several days upon instructions of Headquarters, 15th
Infantry. The trial lasted 19 days up to April 10, 1945; the jury found Borjal guilty on all accounts and imposed upon him instruction from his superiors. Mayor Beronilla forwarded the records of the case to the
Headquarters of the 15th Infantry for review. Said records were returned by Lt. Col. Arnold to Beronilla on April 18, 1945 with the following instructions:
HEADQUARTERS 3RD MILITARY DISTRICT
15TH INFANTRY, USAFIP
In the Field
16 April 1945

Msg. No. 337

Subject: Arsenio Borjal, Charges Against
To: Military Mayor of La Paz, Abra.
1. Returned herewith are the papers on the case of Arsenio Borjal.
2. This is a matter best handled by your government and whatever disposition you make of the case is hereby approved.
(Sgd.) R. H. ARNOLD
Lieut.-Colonel, 15th Inf., PA
Commanding
Received April 18, 1945, 10:35 a.m.
(Sgd.) MANUEL BERONILLA
Military Mayor, La Paz, Abra
(Exhibit 8, 8-a)
and on the night of the same day, April 18, 1945, Beronilla ordered the execution of Borjal. Jacinto Adriatico acted as executioner and Antonio Palope as grave digger. Father Luding of the Roman Catholic Church was
asked to administer the last confession to the prisoner, while Father Filipino Velasco of the Aglipayan Church performed the last rites over Borjal's remains. Immediately after the execution, Beronilla reported the
matter to Col. Arnold who in reply to Beronilla's report, sent him the following message:

HEADQUARTERS 3RD MILITARY DISTRICT

15TH INFANTRY, USAFIP
In the Field
22 April 1945

Msg. No. 398

Subject: Report and information Re Borjal case
To: Military Mayor Beronilla
1. Received your letter dated 18 April 1945, subject, above.
2. My request that you withhold action in this case was only dictated because of a query from Higher Headquarters regarding same. Actually, I believe there was no doubt as to the treasonable acts of the
accused Arsenio Borjal and I know that your trial was absolutely impartial and fair. Consequently, I Can only compliment you for your impartial independent way of handling the whole case.
(Sgd.) R. H. ARNOLD
Lieut.-Colonel, 15th Inf., PA
Commanding
Received April 26, 1947 7:00 a.m.
(Sgd.) MANUEL BERONILLA
Military Mayor, La Paz, Abra
(Exhibit 21, 21-a)
Two years thereafter, Manuel Beronilla as military mayor, Policarpio Paculdo as Clerk of the jury, Felix Alverne and Juan Balmaceda as prosecutors, Jesus Labuguen, Delfin Labuguen, Filemon Labuguen, Servillano
Afos, Andres Afos, Benjamin Adriatico, Juanito Casel, Santiago Casel, Mariano Ajel, Felix Murphy, Benjamin Abella, and Pedro Turqueza as members of the jury, Jacinto Adriatico as executioner, Severo Afos as grave
digger, and Father Filipino Velasco as an alleged conspirator, were indicted in the Court of First Instance of Abra for murder, for allegedly conspiring and confederating in the execution of Arsenio Borjal. Soon
thereafter, the late President Manuel A. Roxas issued Executive Proclamation No. 8, granting amnesty to all persons who committed acts penalized under the Revised Penal Code in furtherance of the resistance to the
enemy against persons aiding in the war efforts of the enemy. Defendant Jesus Labuguen, then a master sergeant in the Philippine Army, applied for and was granted amnesty by the Amnesty Commission, Armed
Forces of the Philippines (Records, pp. 618-20). The rest of the defendant filed their application for amnesty with the Second Guerrilla Amnesty Commission, who denied their application on the ground that the crime
had been inspired by purely personal motives, and remanded the case to the Court of First Instance of Abra for trial on the merits.
Upon motion of defense counsel, the case against defendant Jesus Labuguen, who had been granted amnesty by the Amnesty Commission of the Armed Forces of the Philippines, was ordered provisionally dismissed:
defendant Juan Balmaceda was discharged from the information so that he might be utilized as state witness, although actually he was not called to testify; while the case against defendants Antonio Palope (the grave
digger) and Demetrio Afos( a boloman) was dismissed for lack of sufficient evidence.
Trial proceeded against the rest of the defendants; and on July 10, 1950, the Court below rendered judgment, acquitting the members of the jury and the grave digger Antonio Palope on the ground that they did not
participated in the killing of Arsenio Borjal; acquitting defendants Jesus Labuguen, Felix Alverne, Severo Afos, and Lauro Parado upon insufficiency of evidence to establish their participation in the crime; but

convicting defendants Manuel Beronilla, Policarpio Paculdo, Filipino Velasco, and Jacinto Adriatico as conspirator and co-principals of the crime of murder, and sentencing them to suffer imprisonment of from 17
years, 4 months and 1 day ofreclusion temporal to reclusion perpetua, to indemnify the heirs of Arsenio Borjal jointly and severally in the amount of P4,000 with subsidiary imprisonment in case of insolvency, and
each to pay one fourth of the costs. In convicting said defendants the Court a quo found that while the crime committed by them fell within the provisions of the Amnesty Proclamation, they were not entitled to the
benefits thereof because the crime was committed after the expiration of the time limit fixed by the amnesty proclamation;: i.e., that the deceased Arsenio Borjal was executed after the liberation of La Paz, Abra.
In view of the sentence meted by the Court below, the accused Beronilla, Paculdo, Velasco and Adriatico appealed to this Court.
The records are ample to sustain the claim of the defense that the arrest, prosecution and trial of the late Arsenio Borjal were done pursuant to express orders of the 15th Infantry Headquarters. (Exhibit 9 and 12-a),
instructing all military mayors under its jurisdiction to gather evidence against puppet officials and to appoint juries of at least 12 bolomen to try the accused and find them guilty by two thirds vote. It is to be noted that
Arsenio Borjal was specifically named in the list of civilian officials to be prosecuted (Exhibit 12-b).
In truth, the prosecution does not seriously dispute that the trial and sentencing of Borjal was done in accordance with instructions of superior military authorities, altho it point to irregularities that were due more to
ignorance of legal processes than personal animosity against Borjal. The state, however, predicates its case principally on the existence of the radiogram Exhibit H from Col. Volckmann, overall area commander, to Lt.
Col. Arnold, specifically calling attention to the illegality of Borjal's conviction and sentence, and which the prosecution claims was known to the accused Beronilla. Said message is as follows:
"Message:
VOLCKMANN TO ARNOLD CLN UNDERSTAND THAT MUNICIPALITIES OF ABRA HAVE ORGANIZED JURY SYSTEM PD BELIEVE THAT THIS BODY IS ILLEGAL AND CANNOT TRY PUNISHMENTS
THEREOF PD SPECIFIC INSTANCE IS BROUGHT TO YOUR ATTENTION FRO PROPER AND IMMEDIATE ACTION ON ONE ARSENIO BORJAL OF LA PAZ WHO HAS BEEN TRIED CMA CONVICTED
AND SENTENCED TO BE HANGED PD REPORT ACTION TAKEN BY YOU ON THIS MATTER PD MSG BEGINS CLN"
(EXH. H)
The crucial question thus becomes whether or not this message, originally sent to Arnold's quarters in San Esteban, Ilocos Sur, was relayed by the latter to appellant Beronilla in La Paz, Abra, on the morning of April 18,
1945, together with the package of records of Borjal's trial that was admittedly returned to and received by Beronilla on that date, after review thereof by Arnold (Exhibit 8-8-a). Obviously, if the Volckmann message
was known to Beronilla, his ordering the execution of Borjal on the night of April 18, 1945 can not be justified.
We have carefully examined the evidence on this important issue, and find no satisfactory proof that Beronilla did actually receive the radiogram Exhibit H or any copy thereof. The accused roundly denied it. The
messenger, or "runner", Pedro Molina could not state what papers were enclosed in the package he delivered to Beronilla on that morning in question, nor could Francisco Bayquen (or Bayken), who claimed to have
been present at the delivery of the message, state the contents thereof.
The only witness who asserted that Beronilla received and read the Volckmann message, Exhibit H, was Rafael Balmaceda, a relative of Borjal, who claimed to have been, as Beronilla's bodyguard, present at the receipt
of the message and to have read it over Beronilla's shoulder. This testimony, however, can not be accorded credence, for the reason that in the affidavit executed by this witness before Fiscal Antonio of Abra (Exhibit 4),
Balmaceda failed to make any mention of the reading, or even the receipt, of the message. In the affidavit, he stated:
Q. In your capacity as policeman, do you know of any usual occurrence that transpired in La Paz, Abra? A. Yes, sir.
Q. Will you state what is the event? A. On April 17, 1945, I was assigned as guard at the Presidencia where Mayor Arsenio Borjal is confined. On the 18th of April, 1945, six bolomen came to me while I was on
duty as guard, that Mayor Borjal should be tied, on orders of Mayor Beronilla, Mayor Borjal wanted to know the reason why he would be tied, as he had not yet learned of the decision of the jury against him.
Mayor Borjal wrote a note to Mayor Beronilla, asking the reason for his being ordered to be tied. I personally delivered the note of Borjal to Mayor Beronilla. Mayor Beronilla did not answer the note, but
instead told me that I should tie Mayor Borjal, as tomorrow he would die, as he cannot escape. I returned to the Presidencia, and Mayor Borjal was tied, as that was the ordered of Mayor Beronilla.

The plain import of the affidavit is that the witness Rafael Balmaceda was not with Beronilla when the message arrived, otherwise Beronilla would have given him his orders direct, as he (Balmaceda) testified later at
the trial. Moreover, it is difficult to believe that having learned of the contents of the Volckmann message, Balmaceda should not have relayed it to Borjal , or to some member of the latter's family, considering that they
were relatives. In addition to Balmaceda was contradicted by Bayken, another prosecution witness, as to the hatching of the alleged conspiracy to kill Borjal. Balmaceda claimed that the accused-appellants decided to
kill Borjal in the early evening of April 18, while Bayken testified that the agreement was made about ten o'clock in the morning, shortly after the accused had denied Borjal's petition to be allowed to hear mass.
Upon the other hand, Beronilla's conduct belies his receipt of the Volckmann message. Had he executed Borjal in violation of superior orders, he would not have dared to report it to Arnold's headquarters on the very
same day, April 18th, 1945, as he did (Exhibit 20), half an hour after the execution. And what is even more important, if Borjal was executed contrary to instructions, how could Lt. Colonel Arnold on April 21, 1945,
write in reply (Exhibit 21, 21-a) "I can only compliment you for your impartial but independent way of handling the whole case" instead of berating Beronilla and ordering his court martial for disobedience?
Our conclusion is that Lt. Col. Arnold, for some reason that can not now be ascertained, failed to transmit the Volckmann message to Beronilla. And this being so, the charge of criminal conspiracy to do away with
Borjal must be rejected, because the accused had no need to conspire against a man who was, to their knowledge, duly sentenced to death.
The state claims that the appellants held grudges against the late Borjal. Even so, it has been already decided that the concurrence of personal hatred and collaboration with the enemy as motives for a liquidation does
not operate to exclude the case from the benefits of the Amnesty claimed by appellants, since then "it may not be held that the manslaughter stemmed from purely personal motives" (People vs. Barrioquinto,* G. R. Nos.
L-2011 and 2267, June 30, 1951). Actually, the conduct of the appellants does not dispose that these appellants were impelled by malice (dolo). The arrest and trial of Borjal were made upon express orders of the higher
command; the appellants allowed Borjal to be defended by counsel, one of them (attorney Jovito Barreras) chosen by Borjal's sister; the trial lasted nineteen (19) days; it was suspended when doubts arose about its
legality, and it was not resumed until headquarters (then in Langangilang, Abra) authorized its resumption and sent an observer (Esteban Cabanos, of the S-5) to the proceedings, and whose suggestions on procedure
were followed; and when the verdict of guilty was rendered and death sentence imposed, the records were sent to Arnold's headquarters for review, and Borjal was not punished until the records were returned eight
days later with the statement of Arnold that "whatever disposition you make of the case is hereby approved" (Exhibit 8), which on its face was an assent to the verdict and the sentence. The lower Court, after finding
that the late Arsenio Borjal had really committed treasonable acts, (causing soldiers and civilians to be tortured, and hidden American officers to be captured by the Japanese) expressly declared that "the Court is
convinced that it was not for political or personal reason that the accused decided to kill Arsenio Borjal" (Decision, p. 9; Record, p. 727).
It appearing that the charge is the heinous crime of murder, and that the accused-appellants acted upon orders, of a superior officers that they, as military subordinates, could not question, and obeyed in good faith,
without being aware of their illegality, without any fault or negligence on their part, we can not say that criminal intent has been established (U. S. vs. Catolico, 18 Phil., 507; Peo. vs. Pacana, 47 Phil., 48; Sent. of the
Tribunal Supremo of Spain, 3 July 1886; 7 January 1901; 24 March 1900; 21 Feb. 1921; 25 March 1929). Actus non facit reum nisi mens si rea.
To constitute a crime, the act must, except in certain crimes made such by statute, be accompanied by a criminal intent, or by such negligence or indifference to duty or to consequence, as, in law, is equivalent
to criminal intent. The maxim is, actus non facit reum, nisi mens rea-a crime is not committed if the minds of the person performing the act complained of be innocent. (U. S. vs. Catolico, 18 Phil., 507).
But even assuming that the accused-appellant did commit crime with they are charged, the Court below should not have denied their claim to the benefits of the Guerrilla Amnesty Proclamation No. 8 (42 Off. Gaz.,
2072)on the ground that the slaying of Arsenio Borjal took place after actual liberation of the area from enemy control and occupation. The evidence on record regarding the date of liberation of La Paz, Abra, is
contradictory. The Military Amnesty Commission that decided the case of one of the original accused Jesus Labuguen, held that La Paz, Abra, was liberated on July 1, 1945, according to its records; and this finding was
accepted by Judge Letargo when he dismissed the case against said accused on March 15, 1949. On the other hand, Judge Bocar and Hilario, who subsequently took cognizance of the case, relied on Department Order
No. 25, of the Department of the Interior, dated August 12, 1948, setting the liberation of the Province of Abra on April 4, 1945, fifteen days before Borjal was slain. The two dates are not strictly contradictory; but given
the benefit of the Presidential directive to the Amnesty Commissions (Adm. Order No. 11, of October 2, 1946) that "any reasonable doubt as to whether a given case falls within the (amnesty) proclamation shall be
resolved in favor of the accused" (42 Off. Gaz., 2360), as was done in People vs. Gajo, Phil., 107 46 Off. Gaz., (No. 12) p. 6093.
For the reasons stated, the judgment appealed from is reversed and the appellants are acquitted, with costs de oficio.
EN BANC

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

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

The Case
For automatic review before this Court is the October 26, 2001 Decision [1] of the Regional Trial Court (RTC) of Makati City (Branch 62) in Criminal Case Nos. 01-419 to 01-464, finding Oliver Arevalo Jr. and
Herminigildo Organista guilty beyond reasonable doubt of 42 and 32 counts of rape, respectively. The decretal portion of the Decision is worded as follows:
WHEREFORE, premises considered, the Court finds accused Oliver A. Arevalo in Criminal Cases Nos. 01-419 to 01-423, 01-425 to 01-428, 01-430 to 01-441, 01-442 to 01-446, 01-448 to 01-451, 01-453 to 01-464, and
accused Herminigildo A. Organista in Criminal Cases Nos. 01-419 to 01-422, 01-442 to 01-445, and 01-441 and 01-464 GUILTY beyond reasonable doubt of the crime of rape defined under Art. 266-A, par. 1(a) in
relation to Art. 266-B, par. 2 of the Revised Penal Code, as amended by Republic Act 8353, and imposes upon them the maximum penalty of death in each case. Each of the two accused is hereby ordered to pay
complainants Regina G. Acu[]a and Ruth F. Acosta P75,000.00 each as civil indemnity.
Considering the outrage, humiliation, distress and trauma suffered by the two complainants from the dastardly act of the two accused, the Court orders the accused Arevalo to pay Regina Acu[]a and Ruth
AcostaP200,000.00 each and accused Organista to pay the two complainants P50,000.00 each as moral damages pursuant to Article 2219(3) in relation to Article 2217 of the Civil Code.
Accused Arevalo is further ordered to pay exemplary damages in the amount of P100,000.00 to each of the two complainants to deter others with perverse tendencies or aberrant sexual behaviors from committing the
act.
For failure of the prosecution to establish the guilt beyond reasonable doubt of accused Oliver A. Arevalo in Criminal Cases Nos. 01-424 and 01-447, and 01-429 and 01-452, and accused Herminigildo A. Organista in
Criminal Cases Nos. 01-423 to 01-440 and 01-446 to 01-463, they are hereby ACQUITTED in said cases.[2]
A total of forty-six (46) separate Informations[3] were filed against appellants. For the rape of Regina Acua, they were charged as follows:

Criminal Case No. 01-419

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

Criminal Case No. 01-442

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

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

Appellant Arevalo left momentarily. When he came back, he forcibly took off Reginas clothes. Regina asked him what he was doing, and he replied that what he would do would only take a while. Appellant Arevalo
then undressed himself. When Regina saw this, she pleaded with him to take pity on her and to release her, as her husband may have been worrying for her already. Appellant Arevalo repeated that it would not take
long. Regina shouted for help. But nobody heard her, as appellant Arevalo had closed the door and windows. While she was shouting, appellant Arevalo raised her feet and forcibly inserted his penis into her vagina.
As Regina lay on the bed, she kept on shouting and resisting appellant Arevalos sexual assault. At one point, she was able to free herself from him and run. But he caught up with her, grabbed her hair, banged her
head against the wall and threw her back to the bed, where he continued to ravish her. Rose, or Ruth Acosta, was looking on helplessly, crying while Regina was being violated.
From that night onward until February 14, 2001, Regina would be wearing nothing almost all the time, for she would be ravished for what seemed like almost every day and every hour.
On January 24, 2001, an unidentified man raped Regina in the same room. Before raping her[,] however, the man paid appellant Arevalo a sum of money. Regina could not see the mans face, as appellant Arevalo had
blindfolded her. But she heard the man tell appellant Arevalo, Pare, itong bayad.
The unidentified man made Regina take different sexual positions even as she resisted. At one time, he inserted his penis into her anus; at another, he inserted his finger and later, his penis, into her vagina. Thereafter,
appellant Arevalo made her eat the mans penis. Regina struggled hard to free herself from the mans clutches, but she was no match for him.
When the man had left, appellant Arevalo took off Reginas blindfold. Regina saw him counting the money the man had paid him. Thereafter, appellant Arevalo ravished Regina himself. When he was finished,
appellant Arevalo again sold Regina to another unidentified man, who proceeded to have sex with her. By this time, Regina was no longer shouting for help because no one could hear or help her anyway.
On January 25, 2001, appellant Arevalo again blindfolded Regina and let other men ravish her for a fee while he stood guard outside the door of his house. The first man who had sex with Regina inserted his penis
into her vagina while he was on top of her, covering her mouth with his hand because she was noisy. Regina kept shouting for help, but nobody heard her. So she just cried and cried and threw punches at the man, but
he would not stop ravishing her. To keep her from resisting, the man pointed a knife at her neck and threatened to kill her. When the man was through, another man followed. By then, Regina was no longer putting up
any resistance because she was afraid and at the same time, already very weak. Around six (6) men raped her in succession that day, but she could only recognize appellant Arevalo among them.
On January 26, 2001, appellant Arevalo forced the two (2) women to take drugs. Appellant Arevalo made Regina sniff the smoke of a powdered substance or tawas wrapped in a foil. When she refused, he threatened
to slash her neck. He also made the girls take tablets which Regina later discovered to be birth control pills.
Thereafter, appellant Arevalo inserted his penis into Reginas vagina. While he was raping her, he ran the point of his knife up and down her body, from her breasts to her vagina. Regina was very afraid.
After appellant Arevalo had reached a climax, he blindfolded Ruth and made her have sex with many other men.
On January 27, 2001, appellant Arevalo ravished Regina again in a similar manner as the previous days. By then, Regina was very weak.
On many occasions during her first five (5) days in captivity, and even thereafter, Regina tried to escape, but appellant Arevalo would always catch up with her and hurt her. He would tie up her hands and hang her
while having sex with her. Whenever he left the house, he would lock it from the outside to prevent Regina and Ruth from leaving. Although appellant Arevalo would buy the girls food, Regina oftentimes refused to eat,
because she knew that the food was bought with the money appellant Arevalo earned from peddling their bodies.
On January 28, 2001, appellant Arevalo brought Regina to another place. She did not know where the place was because she was dizzy with the drugs he had made her use.
On January 29, 2001, appellant Arevalo drugged Regina again. Thereafter, he had sexual intercourse with her. Regina begged him to let her go home because her husband was waiting for her, but her plea fell on deaf
ears. Many other men ravished Regina that day.

On January 30, 2001, appellant Arevalo forced Regina to make a choice between marijuana and tawas. When Regina refused to choose, he threatened to slash her throat. Afraid, Regina finally chose
tawas. Appellant Arevalo told her to take it so that she would not feel the pain in her vagina, which was already bleeding. Thereafter, appellant Arevalo raped her.
On January 31, 2001, appellant Arevalo had forcible sexual intercourse with Regina again. Thereafter, not content with putting his fingers into her private part, appellant Arevalo inserted a lighted cigarette
inside. Although Regina was taking the drug appellant Arevalo forced her to use, she still felt the pain in her vagina caused by the hot cigarette.
On February 1, 2001, after forcibly copulating with Regina yet another time, appellant Arevalo sold her again to other men.
On the night of February 2, 2001, appellant Arevalo again moved Regina to another place which she could not remember, because she was dizzy then. Although there were other passengers on the public utility jeepney
that they took on the way to the place, Regina could not ask for help, as appellant Arevalo was poking a knife at her back inside her t-shirt the whole time and had earlier warned her that he would kill her if she
shouted. They arrived at a concrete house which had a vulcanizing shop at the ground floor. When they were inside the building, appellant Arevalo blindfolded Regina and hanged her by the hands. Regina heard
womens voices, but she was not sure whether they were real or came from the television set in the room. That night, Regina was again raped by unidentified persons. Appellant Arevalo and Regina left the place at half
past midnight.
From February 3 up to February 5, 2001, appellant Arevalo continued to subject [her] to his bestial designs. Each time, he succeeded in inserting his penis into her vagina and in consummating the intercourse. Regina
no longer put up any resistance because her body had been rendered very weak from her days of endless ravishment.
On February 6, 2001, Regina fell ill with fever, and Ruth took care of her. Reginas illness did not stop appellant Arevalo from molesting her that day. Before she was raped, Regina begged appellant Arevalo to allow
her to call her parents and even offered him any sum of money as he desired, but he slapped her, saying that he needed her body and not her money. He also told Ruth to slap her, and so Ruth slapped her.
On February 7, 2001, Regina could only beg appellant Arevalo to take pity on her. She was chilling and she tried to push him away, to no avail, for once again, appellant Arevalo successfully penetrated her private
organ.
On February 8, 2001, Regina discovered that she had a venereal disease, or tulo. But this did not spare her from appellant Arevalos carnal greed. She stopped resisting him, for her body had long been worn down by
ceaseless abuse.
Reginas ordeal continued from February 9 up to February 14, 2001. Every single day, appellant Arevalo would ravish her without letup.
On February 14, 2001, appellant Organista, a friend and neighbor of appellant Arevalo, also had a taste of Reginas flesh. After appellant Arevalo stripped her naked, appellant Organista made his move. Regina
pushed him away as he approached her, but appellant Arevalo teased him, saying, kaya mo yan pre. Appellant Organista proceeded to insert his penis into Reginas vagina while she lay down on the floor, with
appellant Arevalo looking on. After appellant Organista was finished, appellant Arevalo took over in ravishing Regina and succeeded in penetrating her as well.
Ruth F. Acosta, a native of Bukidnon, left her family for Manila when she was about eighteen (18) years old. Her highest educational attainment was the third grade of primary school. Unable to find any relatives in
Manila, she ended up loitering and sleeping on the streets of Luneta.
On January 23, 2001, about a year she had left the province, Ruth Acosta met appellant Oliver Arevalo at the Luneta park. It was around six oclock in the evening. Appellant Arevalo told Ruth that he could help her
find a job and invited her to go with him. Ruth went with appellant Arevalo and they boarded a jeepney. They arrived at (what turned out to be) appellant Arevalos house in Pembo, Makati, a few hours later.
Upon entering the house, appellant Arevalo pushed Ruth Acosta to the bed and stripped off her clothes. Thereafter, appellant Arevalo removed his own clothes and forcibly inserted his penis into her vagina. Ruth
could not recall what happened immediately thereafter, except that she felt pain in her private part. She was also bleeding badly, for she had just lost her virginity to her assailant.

That same evening, after she was ravished by appellant Arevalo, Ruth was raped by appellant Arevalos friend and neighbor, herein appellant Organista, in the same room.
The following day, January 24, 2001, appellant Arevalo raped Ruth Acosta again. He took off his clothes, undressed Ruth, and inserted his penis into her vagina, causing her to feel pain. While she was being raped,
Ruth attempted to resist appellant Arevalo by pulling backwards her two hands with clenched fists, but her resistance was futile.
On January 25, 2001, appellant Arevalo forcibly had sexual intercourse with Ruth again on his bed. He inserted his organ into her private part, and once more, she felt pain. Many other men raped Ruth in the same
room that night after paying a fee to appellant Arevalo, but she could not identify said men because she was blindfolded by him. She recognized appellant Organista, though, as one of those who raped her while she was
blindfolded because she was able to hold his beard while he was ravishing her and she was already familiar with his face.
On January 26, 2001, appellants Organista and Arevalo took turns in raping Ruth. Appellant Organista removed Ruths clothes, after which, appellant Arevalo had forcible sexual intercourse with her. Try as she
might to resist the two (2) men, she was easily overpowered by them. After appellant Arevalo was through with Ruth, he left the room. Appellant Organista then proceeded to defile her, inserting his penis into her
vagina. As a result of her ravishment by the two (2) men, Ruth experienced pain whenever she urinated.
The next day, January 27, 2001, appellant Arevalo blindfolded Ruth. Thereafter, she was raped successively by several unidentified men.
On January 28, 2001, appellants Arevalo and Organista forced Ruth to take drugs. Next, appellant Arevalo blindfolded Ruth. Thereafter, several unidentified men raped Ruth, one after the other, in appellant
Arevalos room. Before sexually abusing her, each of these men paid a fee to appellant Arevalo. Ruth knew this, because she would hear the men say to him, Pare bayad or Pare ito na ang pambayad.
On January 29, 2001, appellant Arevalo vented his carnal desire on Ruth again. After undressing Ruth, he had forcible sexual intercourse with her on his bed.
On January 30, 2001, appellant Arevalo forced himself upon Ruth once more. While appellant Arevalo was raping her, appellant Organista, who was visiting, merely looked on and did nothing to stop his friend and
neighbor. After appellant Arevalo had ejaculated, appellant Organista took over, ravishing Ruth until he, too, succeeded in discharging his semen on her. While this was going on, appellant Arevalo merely stood by,
laughing.
On January 31, 2001, appellant Arevalo sexually abused Ruth yet another time, piercing her womanhood and bringing himself to a climax. Other men followed in raping her that night in appellant Arevalos room, but
she could not see them because appellant Arevalo had covered her eyes.
The following day, February 1, 2001, five (5) men raped Ruth in succession in the same room after paying a sum to appellant Arevalo. Once again, she could not see their faces because appellant Arevalo had
blindfolded her.
On February 2, 2001, appellants Arevalo and Organista took turns in raping Ruth in appellant Arevalos room. Ruth knew that both men had reached a climax after forcibly copulating with her, for her vagina was very
wet with their semen.
On February 3, 2001, appellant Arevalo slapped Ruth, pulled her hair, inserted his penis into her vagina and ravished her until he ejaculated. Appellant Organista followed, similarly unleashing his seminal fluid on the
hapless woman upon reaching a climax, while appellant Arevalo looked on and held her down. Ruths ordeal did not end at this point, for she was subsequently raped by several other men after paying appellant Arevalo
one hundred pesos (P100.00) each.
On February 4, 2001, appellants Arevalo and Organista again raped Ruth in the same room. Appellant Organista had forcible sexual intercourse with Ruth until he ejaculated; he also forced her to eat his
penis. Appellant Arevalo followed, inserting his penis into her private part, causing it to hurt. He also ejaculated his semen on her.

In addition, appellant Arevalo, as with previous dates, sold Ruth to many other men that day. All of them sexually abused her after each paying appellant Arevalo one hundred pesos (P100.00).
On February 5, 2001, appellant Arevalo once more peddled Ruth and Regina to unidentified persons who each paid him one hundred pesos (P100.00). Appellant Arevalo also forcibly copulated with the two (2)
women that day. Additionally, appellant Organista ravished Ruth to the point of ejaculation while appellant Arevalo watched. Ruth could only lie helpless while she was being raped by appellants, as they were too
strong for her.
On February 6, 2001, appellants Arevalo and Organista raped Ruth again. Appellant Organista ravished Ruth first, undressing her, inserting his manhood into her as she lay on appellant Arevalos bed, and helping
himself to an orgasm while leaving Ruth in pain. Appellant Arevalo then took over, defiling her as well. Thereafter, he blindfolded her and sold her for sex to other unidentified men.
On February 7 and 8, 2001, appellant Arevalo repeated his ravishment of the helpless woman until he ejaculated on her.
Thereafter, appellant Arevalo blindfolded Ruth and sold her flesh to many other men. Again, Ruth knew this, for she heard them say to him, Pare bayad and she also heard him talking to them.
On February 9, 2001, appellant Arevalo blindfolded the two (2) women and sold their sexual services to several men. Appellant Arevalo warned Ruth that he had already killed a man before, and she believed him;
hence, she did not dare remove her blindfold because she was afraid of him.
On February 10, 2001, appellant Arevalo forcibly consummated his lust on Ruth once more. He also let other men ravish her for a fee.
On February 11, 2001, several men paid appellant Arevalo to have sex with the two (2) women. Appellant Arevalo himself did not spare Ruth, penetrating her maidenhood yet another time until he was satisfied.
On February 12, 13, and 14, 2001, appellant Arevalo again peddled the women to other men for sex. Appellants Arevalo and Organista were not to be outdone, for they, too, ravished Ruth on February 12 and 13, 2001.
On the night of February 14, 2001, after they had fulfilled their lustful designs on the two (2) women and prostituted them to other men, appellants Arevalo and Organista had a drinking spree in the formers
room. Thereafter, they fell asleep. Regina Acu[]a got the key to the door from appellant Arevalos pocket, dragged Ruth Acosta with her, and together they escaped. Regina and Ruth then reported their horrifying
ordeal to the Makati police. It was around 9:30 in the evening.
That same evening, a team of Makati policemen and barangay tanods went to appellant Arevalos house accompanied by the Regina and Ruth. They knocked on the door. When appellant Arevalo opened the door, he
was immediately identified by the women as their ravisher. Appellant Arevalo tried to escape, but he was quickly arrested by the police. Thereafter, the police and the two (2) women proceeded to appellant Organistas
residence which appellant Arevalo had readily pinpointed to them. The police knocked on the door and appellant Organista opened it. Again, the two (2) women quickly identified him as their other rapist. The
moment he saw the policemen and the women, appellant Organista also tried to escape, but the police immediately apprehended him.
The following day, the private complainants were physically examined by Dr. Miriam S. Guialani, the deputy chief of the Womens Crisis and Child Protection Center of the Philippine National Police (PNP) in Camp
Crame, Quezon City.
Dr. Guialani found infected erosions or abrasions at the 8 and 9 oclock positions in the labial fold of Reginas external genitalia, most likely caused by constant friction. She also noted hematoma, infection and fresh
lacerations in the hymen at the 2 and 4 oclock positions. In addition, the hymen was very very red and swollen, indicating that it had been subjected to force and violence. There was also a foul-smelling yellowish
vaginal discharge strongly indicative of a sexually transmitted disease. On the whole, Dr. Guialani noted that the genital findings show clear evidence of previous penetrating trauma.
On the other hand, Dr. Guialani found healed lacerations at the 4, 7 and 8 oclock positions in Ruths hymen. She also noted edema and swelling at the hymenal rim and its mucosal tissues. Dr. Guialani similarly
reported that Ruths genital findings show clear evidence of previous trauma.[10] (Citations omitted)

Version of the Defense

On the other hand, the defense presented the following version of the facts:
OLIVER AREVALO testified that since December 27, 2000, he was in Ormoc, Leyte with his wife and two (2) children. On February 10, 2001, he went back to Manila to borrow money from his brother Tony to put
up a sari-sari store but he was asked by his brothers secretary to come back on February 13, 2001 so he went back to his brothers house but his brother referred him to their elder brother at Project 6, Quezon City. He
was only given P500.00. At around 4:00 oclock p.m., he proceeded to Luneta where policemen were arresting vagrants at that time. The two (2) women, Ruth and Apple, referring to complainants Acosta and Acu[]a,
were arrested. He helped them by giving them food and clothing. They went with him to Makati and arrived at their house at around 11:30 p.m. The next day, February 12, 2001, the two (2) women were hungry again
and Acosta was asking for transportation fare. He brought them to Organistas house and the latter gave P10.00 to Acosta. The two (2) women left at around 1:30 in the afternoon. He had a drinking spree with
Organista at his house. At around 1:00 in the morning, he saw policemen together with the two (2) women and one of the policemen boxed him, so he pointed Organistas house to them.
HERMINIGILDO ORGANISTA could not remember where he was from January 23, to 26, 2001 because he was treated with ECI for about five (5) times at the National Mental Health Hospital since 1983. He
claimed that said treatment has the tendency of weakening or affecting ones memory. He corroborated the testimony of accused Arevalo that he only gave P10.00 for the food of Acosta.
AVELINA ORGANISTA testified that her son was treated at the National Mental Health in 1983. His last examination was in 1997. After said examination, her son could no longer work because they have to bind
him because he was uncontrollable. He even threatened her that he would kill her when she opposed what he was doing. On the dates of the alleged rapes, her son was at home with her.
DR. PIA ALMA DE JESUS of the National Center for Mental Health testified that she first saw accused Organista for treatment on April 11, 2001. She learned from the hospital records that said accused had been
mentally ill since 1982 or 1983 and had 23 admissions at the mental hospital. During his last admission, he was given oral medication to control his psychotic symptoms like illusions and hallucination. Failure to
regularly take said medication could cause a relapse that would render him [unfit] for trial.
JESUS OCAMPO, driver and all around helper of accused Arevalos brother, Tony, testified that he usually see Arevalo on Tuesdays as the latter used to ask money from Tony.[11] (Citations omitted)

Ruling of the Trial Court

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

Although Organista was indeed confined at the National Center for Mental Health, the period of his confinement did not include the period of the commission of the rapes, as he was last discharged from the
Center in 1997. Moreover, he failed to prove his claimed insanity during or near the time of the commission thereof.
On the contrary, when the arresting policemen, together with the victims, proceeded to his house, Organista tried to escape. His reaction was indicative of guilt and awareness of the wrong he had inflicted on the
victims.
Hence, this automatic review before us.[12]

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

The Courts Ruling

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

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

Alibi and Denial

The positive, consistent and straightforward testimonies of the victims sufficiently established appellants culpability. Well-settled is the rule that denial and alibi, being weak defenses, cannot overcome the
positive testimonies of the offended parties.[15]
In order to merit credibility, denial must be buttressed by strong evidence of non-culpability,[16] which herein appellants failed to show. And in order for alibi to prosper, the accused must prove not only that they
were at some other place at the time of the commission of the crime, but also that it was physically impossible for them to be at the locus delicti or its immediate vicinity.[17]
In the present case, appellants failed to demonstrate this fact. Without presenting any evidence to support his bare assertion,[18] Arevalo merely testified that he was in Ormoc, Leyte, from December 27, 2000, to
February 10, 2001. He said that the bus ticket evidencing his trip to Leyte on December 27, 2000, was with his wife, while the return ticket to Manila on February 10, 2001, was with his brother. To corroborate his
testimony, he manifested that he would present the tickets in court after retrieving them,[19] but he failed to do so.
On the other hand, the mother of Organista averred that her son had stayed with her during the entire period of the commission of the rapes. But since their house was near Arevalos, or the place where the rapes
were committed, then it would not have been unlikely for him to be in the vicinity at the time of the rapes.
The victims testimonies, corroborated by the results of the medical examination, convincingly proved that appellants were the perpetrators. It is a time-tested rule that the evaluation of the credibility of witnesses
and their testimonies is best undertaken by the trial court, because it had the opportunity to observe them firsthand and to note their demeanor and conduct on the witness stand.[20] For this reason, its findings on such
matters, absent any arbitrariness or oversight of facts or circumstances of weight and substance, are final and conclusive upon this Court. [21] It is likewise well-settled that when a woman declares that she has been
raped, she says in effect all that is necessary to show that rape has been committed; and when her testimony passes the test of credibility, the accused can be convicted on the basis thereof.[22]
After a painstaking review of the records of the case, we find no cogent reason to disturb the trial courts findings on the credibility of the witnesses. When in open court they positively identified appellants as their
rapists, the trial court rightly declared:
The Court has closely observed the demeanor of the two complainants and did not find any ill-motive on their part to impute a serious offense against the two accused. Clearly evident were the trauma, pain,
humiliation and distress on the part of Acu[]a and the state of daze or shock Acosta was in. x x x.[27]
Nevertheless, though appellants are guilty of raping the victims, modifications have to be made regarding the counts of rape for which each of them should be held liable.
From January 23 to 26, 2001,[28] only Arevalo, not Organista, should be held liable for the rapes of Acua. A careful review of the records[29] shows that she identified only Arevalo as her rapist on those dates.
For the rapes committed against Acosta on January 23, 25 and 26, 2001,[30] her testimony confirmed that both appellants had raped her separately.[31] It was not established, however, that Organista had raped her
on January 24, 2001;[32] therefore, only Arevalo should have been convicted for the rape on that date.

Acua, on the other hand, clearly testified[33] that Organista had raped her only on February 14, 2001.[34] She further testified that after raping her, Organista had subsequently raped Acosta.[35]But Acosta was
silent on whether she was raped by Organista on that date.[36] Because she was the best person to say whether he had raped her on that date, and she was silent on the matter, we resolve the doubt in his favor and acquit
him of the offense that he allegedly committed on that date.
Regarding the other counts of rape, we find no reason to disturb the trial courts findings. For the rape of Acua, Arevalo is found guilty of simple rape under Criminal Case Nos. 01-419 to 423, 01-425 to 01-428
and 01-430 to 01-441. He is likewise found guilty of the rape of Acosta in Criminal Case Nos. 01-442 to 01-446, 01-448 to 01-451 and 01-0453 to 01-464.
On the other hand, for the rape of Acua, Organista is found guilty of simple rape under Criminal Case Nos. 01-441. He is also found guilty of the rape of Acosta in Criminal Case Nos. 01-442, 01-444 to 01-445 and
01-464.

Criminal Liability
The trial court erred, however, in imposing the penalty of death upon appellants when it appreciated the circumstance of rape by two or more persons twice -- once as a qualifying, then as an aggravating,
circumstance.
Article 266-B of the Revised Penal Code provides:
ART. 266-B. Penalties. Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua.
Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death.
xxx

xxx

x x x.

From the above, whenever the crime committed is simple rape, the penalty to be imposed is the single penalty of reclusion perpetua. On the other hand, whenever the rape is committed with the use of a deadly
weapon or by two or more persons, the penalty shall be reclusion perpetua to death.
We must note, however, that the Revised Rules of Criminal Procedure, which took effect on December 1, 2000, requires that the complaint or information should state the qualifying and the aggravating
circumstances with specificity.[37] In the present case, no aggravating circumstance was alleged in the Informations. Hence, the lesser penalty should be applied, as the Court held inPeople v. Sabredo:[38]
The imposable penalty for rape under Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, is reclusion perpetua. But where the rape is committed with the use of deadly weapon or by two or more
persons, the imposable penalty ranges from reclusion perpetua to death. The use of the bladed weapon already qualified the rape. Under Article 63 of the Revised Penal Code, the crucial factor in determining whether
appellant should be meted the death penalty is the presence of an aggravating circumstance which attended the commission of the crime. A perusal of the records shows that none of the aggravating circumstances
enumerated in Article 14 of the Revised Penal Code was alleged and proven by the prosecution. Where there is no aggravating circumstance proved in the commission of the offense, the lesser penalty shall be
applied.[39]

Second Issue:
Conspiracy
Appellants contend that conspiracy did not attend the rapes committed from January 23 to 26 and on February 14, 2001.

This contention is partly meritorious.

Without specifying whether it was referring to Acua or Acosta, the trial court declared that appellants were in conspiracy in the rapes committed from January 23 to 26 and on February 14, 2001. From the
records, however, it seems that no such conspiracy took place when appellants separately raped Acosta on those dates. To be appreciated, conspiracy must be shown to have been committed as clearly and convincingly
as the offense itself.[40]

The Rape of Regina Acua

As regards Acua, there was conspiracy only during the rape that occurred on February 14, 2001. We reiterate that, from the records,[41] her account of the rapes that happened from January 23 to 26, 2001 shows
that only Arevalo, not Organista, raped her. Furthermore, no conspiracy attended the rapes on those dates.
On February 14, 2001, both appellants raped her.[42] It was Arevalo who removed her clothes before Organista raped her.[43] Moreover, when the latter advanced towards her and she pushed him away, Arevalo -who was standing inside the same room all the while -- kept egging him on by saying, Kaya mo yan pre. The latter continued until he consummated his bestial attack upon the victim.
We have held that an overt act in furtherance of conspiracy may consist of lending moral assistance to the co-conspirators even through ones mere presence at the scene of the crime.[44] In the present case
(Criminal Case No. 01-441), Arevalos presence and words encouraged Organista to pursue his savage designs.

The Rape of Ruth Acosta

The records of the rape of Acosta from January 23 to 26 and on February 14, 2001, do not support the finding of conspiracy.
On January 23, 2001,[45] appellants separately raped her one after the other, but only Arevalo raped her on January 24, 2001. [46] On January 25[47] and 26,[48] appellants again separately raped her one after the
other, but it was only Arevalo who raped her on February 14, 2001.[49]

Third Issue:
Insanity
Organista argues that the trial court erred in not exempting him from criminal liability, even though he was insane or completely deprived of intelligence during the commission of the rapes. He avers that his
insanity may be deduced from the following:
First, he cannot remember the events that transpired from January 23 to February 14, 2001, because the treatments he has been undergoing at the National Center for Mental Health since 1983 have weakened his
memory.
Second, Dr. Pia Alma de Jesus of the National Center for Mental Health testified that he had displayed psychotic symptoms like hallucinations and delusions. She opined that his failure to take his medications
regularly could have caused his relapse.
Third, the behavior and actuations he exhibited before and after the rapes were manifestations of mental instability. As testified to by his mother, he was violent and destructive to the extent of habitually setting
their home furniture on fire. He even threatened to kill her when she confronted him on his behavior.

Fourth, the New Bilibid Prison, where he is presently locked up, certified that he still suffers from chronic schizophrenia.
We are not persuaded.
The law presumes everyone to be sane.[50] The accused who pleads the exempting circumstance of insanity incurs the burden of proving it.[51] To be adjudged insane under Article 12 of the Revised Penal Code, he
or she must have been completely deprived of reason or discernment and freedom of the will at the time the crime was committed. [52] For such deprivation to be ascertained, it is but proper to receive evidence during a
reasonable period before or after the commission of the crime, for the mind -- its thoughts, motives and emotions -- may be fathomed only by examining whether the external acts conform with those of people of sound
minds.[53]
In the present case, while Organista had indeed been confined at the National Center for Mental Health for treatment, it does not necessarily follow that he still suffered from schizophrenia during the period of the
rapes. No convincing evidence was presented by the defense to show that he had not been in his right mind, or that he had acted under the influence of a sudden attack of insanity, or that he had generally been
regarded as insane around the time of the commission of the acts attributed to him. Well-settled is the rule that an inquiry into the mental state of the accused should relate to the period immediately before or at the
very moment the act under prosecution was committed.[54] Mere prior confinement in a mental institution does not prove that the perpetrator was deprived of reason at the time the crimes were committed.[55]
It must be noted that Organista had been discharged from the mental hospital well before the period of the rapes. We have held that if the insanity is only occasional or intermittent, the presumption of its
continuance does not arise.[56] One who relies on insanity proved at another time must prove its existence also at the time of the commission of the offense.[57]
To prove his claimed insanity, Organista presented, as an expert witness on his mental condition, Dr. Pia Alma S. de Jesus of the National Center for Mental Health. It is important to note that she only began
treating him beginning April 2001, or two months after the rape incidents,[58] upon orders of the trial court. Referring to hospital records, she narrated that he had been mentally ill since 1982 or 1983 and had been
admitted to the Center a total of 23 times.[59] Prior to the rapes, his last confinement had been from October 27 to December 1, 1997, [60] again for schizophrenia. Likewise noteworthy is the fact that this period covering
his last admission and discharge prior to the rapes was outside that of the commission thereof -- January 23 to February 14, 2001. Dr. De Jesus further testified that Organista had already been considered treated on
the date of his discharge in 1997.[61] Though she opined that a patient who did not continue to take medications could suffer a relapse, she did not categorically state whether Organista had suffered such a relapse before
the commissions of the rape.
On the other hand, the prosecution has sufficiently established that Organista knew exactly what he was doing. His going to the house of Arevalo and either directly or indispensably cooperating with him -- day
after day to ravish the victims -- could not have been the act of one so insane as to be incapable of entertaining a criminal intent. On February 14, 2001, specifically, Organista continued to ravish Acua after being
coaxed by Arevalo, Kaya mo yan pre.[62] That Organista persisted in the act all the way to its consummation leaves no doubt that it was voluntary, conscious and deliberate. Moreover, his attempt to flee when the
police officers came to arrest him shows that he knew that what he had done was condemnable.
Furthermore, Organistas claimed amnesia does not preclude culpability. This charade is evidently a desperate ploy for exculpation. Failure to remember does not in itself prove the existence of such mental
condition at the time the crime was committed.[63]
The testimony of Organista himself militates against his credibility and puts his purported amnesia into serious question. During trial, he said that he could not remember where he had been from January 23 to
26, 2001. Surprisingly, he could remember perfectly well the number of times he had been treated at the National Center for Mental Health since 1983, what procedure he had gone through each time he was treated,
the kind of medicine he had been given, the number of times Appellant Arevalo had borrowed money from him without paying, the total amount of money he had lent the former, and the resentment the latter had often
felt whenever his friend would not repay him. Moreover, he could narrate in complete detail his fabricated story of how he had allegedly met the victims on February 14, 2001, and lent them money only to be later
arrested for rape.[64] The prosecution aptly point out that his selective amnesia and mental dishonesty speak eloquently of his total lack of credibility on the witness stand.
Finally, Organista is not entitled to the mitigating circumstance under Article 13(9) of the Revised Penal Code, because it was not shown that his mental illness at the time immediately preceding or at the very
moment of the commission of the crime diminished his will power.

Civil Liability

The trial courts award of damages should be modified. Prevailing jurisprudence holds that for each count of simple rape, the victim should be awarded P50,000 as civil indemnity and another P50,000 as moral
damages for the injury evidently suffered.[65] This Court has granted moral damages to victims of rape without need of proof other than the fact of rape, which by itself shows the factual basis for the award.[66] The award
of P100,000 to each of the victims by way of exemplary damages should be deleted, because no aggravating circumstance was proven.
WHEREFORE, the October 26, 2001 Decision of the Regional Trial Court of Makati City (Branch 62), finding appellants guilty of qualified rape, is MODIFIED.
The Court finds Oliver Arevalo y Abanilla Jr. GUILTY beyond reasonable doubt of SIMPLE RAPE. He is sentenced to suffer the penalty of reclusion perpetua for each count of rape in Criminal Case Nos. 01-419 to
01-423, 01-425 to 01-428, 01-430 to 01-446, 01-448 to 01-451 and 01-453 to 01-464. Furthermore, he is hereby ordered to pay the following:
1. To Regina Acua, the amount of P50,000 as civil indemnity and P50,000 as moral damages for each count of rape in Criminal Case Nos. 01-419 to 01-423, 01-425 to 01-428, and 01-430 to 01-441
2. To Ruth Acosta, the amount of P50,000 as civil indemnity and P50,000 as moral damages for each count of rape in Criminal Case Nos. 01-442 to 01-446, 01-448 to 01-451 and 01-453 to 01-464
Herminigildo Organista y Andres is found GUILTY beyond reasonable doubt of SIMPLE RAPE and is sentenced to suffer the penalty of reclusion perpetua for each count of rape in Criminal Case Nos. 01-441 to
01-442 and 01-444 to 01-445. He is likewise ordered to pay the following:
1. To Regina Acua the amount of P50,000 as civil indemnity and P50,000 as moral damages for each count of rape in Criminal Case No. 01-441
2. To Ruth Acosta, the amount of P50,000 as civil indemnity and P50,000 by way of moral damages for each count of rape in Criminal Case Nos. 01-442, 01-444 and 01-445
With respect to Criminal Case No. 01-441, both appellants are found guilty of two (2) counts of rape, for which the penalty of reclusion perpetua for each count is meted out to them.
Finally, Herminigildo Organista y Andres is ACQUITTED in Criminal Case Nos. 01-419 to 01-422 and 01-443 and 01-464.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 46539

September 27, 1939

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
VALENTIN DOQUEA, defendant-appellant.
Primicias, Abad, Mencias and Castillo for appellant.
Assistant Solicitor-General Concepcion and Assistant Attorney Paredes, Jr., for appellee.
DIAZ, J.:
The accused-appellant, who is a minor, was prosecuted for homicide in the Court of First Instance of Pangasinan, for having killed Juan Ragojos by stabbing him in the breast with a knife on November 19, 1938, in the
municipality of Sual, Pangasinan. The court, after trying the case, held that the accused acted with discernment in committing the act imputed to him and, proceeding in accordance with the provisions of article 80 of

the Revised Penal Code, as amended by Commonwealth Act No. 99, ordered him to be sent to the Training School for Boys to remain therein until he reaches the age of majority. From this order the accused interposed
an appeal alleging that the court erred in holding that he had acted with discernment and in not having dismissal the case.
On the date of the crime, the appellant was exactly thirteen years, nine months and five days old. The incident that gave rise to the aggression committed by him on the deceased is narrated in the appealed order as
follows:
Between 1 and 2 o'clock in the afternoon of November 19, 1938, the now deceased Juan Ragojos and one Epifanio Rarang were playing volleyball in the yard of the intermediate school of the municipality of
Sual, Province of Pangasinan. The herein accused, who was also in said yard, intervened and, catching the ball, tossed it at Juan Ragojos, hitting him on the stomach. For this act of the accused, Juan Ragojos
chased him around the yard and, upon overtaking him, slapped him on the nape. Said accused then turned against the deceased assuming a threatening attitude, for which the reason said deceased struck him
on the mouth with his fist, returning immediately to the place where Epifanio Rarang was in order to continue playing with him. The accused, offended by what he considered an abuse on the part of Juan
Ragojos, who was taller and more robust than he, looked around the yard for a stone with which to attack the now deceased Juan Ragojos, but finding none, he approached a cousin of his named Romualdo
Cocal, to ask the latter to lend him his knife. Epifanio Rarang, who had heard what the accused had been asking his cousin, told the latter not to give the accused his knife because he might attack Juan Ragojos
with it. The accused, however, succeeded in taking possession of the knife which was in a pocket of his cousin's pants. Once in possession of the knife, Valentin Doquea approached Juan Ragojos and
challenged the latter to give him another blow with his fist, to which the deceased answered that he did not want to do so because he (Juan Ragojos) was bigger that the accused. Juan Ragojos, ignorant of the
intentions of the accused, continued playing and, while he was thus unprepared and in the act of stopping the ball with his two hands, the accused stabbed him in the chest with the knife which he carried.
The order also contains the following conclusions and findings of fact which we are not at liberty to alter, not being called upon or authorized to do so, in view of the nature of the appeal before us, by section 138 of the
Administrative Code, as amended by Commonwealth Act No. 3:
Taking into account the fact that when the accused Valentin Doquea committed the crime in question, he was a 7th grade pupil in the intermediate school of the municipality of Sual, Pangasinan, and as such
pupil, he was one of the brightest in said school and was a captain of a company of the cadet corps thereof, and during the time he was studying therein he always obtained excellent marks, this court is
convinced that the accused, in committing the crime, acted with discernment and was conscious of the nature and consequences of his act, and so also has this court observed at the time said accused was
testifying in his behalf during the trial of this case.
The proven facts, as stated by the lower court in the appealed order, convinces us that the appeal taken from said order is absolutely unfounded, because it is error to determine discernment by the means resorted to by
the attorney for the defense, as discussed by him in his brief. He claims that to determine whether or not a minor acted with discernment, we must take into consideration not only the facts and circumstances which
gave rise to the act committed by the minor, but also his state of mind at the time the crime was committed, the time he might have had at his disposal for the purpose of meditating on the consequences of his act, and
the degree of reasoning he could have had at that moment. It is clear that the attorney for the defense mistakes the discernment referred to in article 12, subsection 3, of the Revised Penal Code, for premeditation, or at
least for lack of intention which, as a mitigating circumstance, is included among other mitigating circumstances in article 13 of said Code. The discernment that constitutes an exception to the exemption from criminal
liability of a minor under fifteen years of age but over nine, who commits an act prohibited by law, is his mental capacity to understand the difference between right and wrong, and such capacity may be known and
should be determined by taking into consideration all the facts and circumstances afforded by the records in each case, the very appearance, the very attitude, the very comportment and behaviour of said minor, not
only before and during the commission of the act, but also after and even during the trial (U.S. vs. Maralit, 36 Phil., 155). This was done by the trial court, and the conclusion arrived at by it is correct.
Wherefore, the appealed order is affirmed, with the costs to the appellant. So ordered.
epublic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-482

February 25, 1947

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BIENVENIDO NOCUM, defendant-appellant.
Severino P. Izon for appellant.
Assistant Solicitor General Kapunan, Jr. and Solicitor Umali for appellee.
BENGZON, J.:
For having discharged a gun and accidentally killed Eugenio Francisco, the defendant Bienvenido Nocum, aliasBembe, was tried in the Court of First Instance Manila, before the Honorable Alfonso Felix, judge. Found
guilty of homicide through reckless negligence, he appealed in due course.
According to the evidence, about 9 o'clock in the evening of November 21, 1945, there was a fistic fight between Federico Bautista and Vicente Aurencio at the corner of Mayhaligue and Magdalena Streets, City of
Manila. Desiring to stop the encounter, defendant shouted at the combatants. As these paid him no attention, he drew a .45 caliber pistol and shot twice at the air. The bout continued, however; so he fired another shot
at the ground, but unfortunately the bullet ricocheted and hit Eugenio Francisco, an innocent by-stander, resident of the place. The wounded man was promptly carried to the St. Luke's Hospital where he expired soon
after.
The above paragraph is a composite and abridged statement of the declarations of several witnesses (Jesus Santos, Vicente and Juan Aurencio and Ramon Gagui) in connection with defendant's confession Exhibit
F.1 But his attorney, assailing the validity of said confession in the ground of involuntariness, contends in this Court that in asmuch as the corpus delicti had not been demonstrated by evidence dehors that document,
his client should be absolved, pursuant to several pertinent decisions. (United States vs. De la Cruz, 2 Phil., 148; and People vs. Bantagan, 54 Phil., 834.) Particular attention has been given to these points. Yet there is
competent proof establishing the fact that, during the affray, pistol detonations were heard, and that one of the bullets produced the tragic death of Eugenio Francisco, whose photograph is Exhibit B. That is proof of
the corpus delicti, i. e.,proof of violent death, whether or not feloniously caused. (See Moran, Law of Evidence, Revised Edition, pp. 108, 109; People vs. Mones, 58 Phil., 46.) The confession Exhibit F served to identify
the person who fired those shots and committed the offense.
We feel no inclination to reject such confession, because the uncorroborated and implausible testimony of the accused, alleging he had been manhandled before signing this document, about which he knew nothing,
could not definitely overcome the positive assertions of Pablo Montilla of the Manila Police Department (before whom Exhibit F had been executed) that no force or intimidation had been employed on Nocum, who
willingly signed it "after propounding to him all the questions and explaining to him the contents" thereof. The impartiality of that officer of the law has not been shaken by the lone testimony of herein appellant, which,
as explained in the People's brief, deserves no credence. Nocum said in court that he signed Exhibit F when Montilla told him "it was simply a proof that they arrested me" (p. 27, t.s.n.). This is inconsistent with the
alleged third-degree methods. If he was forced, deceit was unneccessary. And yet, he could not be deceived thusly, because he was no illiterate, being seventh grader.
Anyway, the trial judge had the chance to see the opposing witnesses, and to observe their demeanor on the stand; and in the conflict of their statements we will not interfere with his judgment, unless the record
discloses some important circumstance which was overlooked, (United States vs. Remigio, 37 Phil., 599; United States vs. Maralit, 36 Phil., 155), it being the peculiar province of trial courts to resolve questions relating
to the credibility of witnesses. (United States vs. Pico, 15 Phil., 549.)
The mishap should be classed as homicide through reckless imprudence, the slaying having been unintentional (cf. People vs. Sara, 55 Phil., 939; and United States vs. Reodique, 32 Phil., 458). It is apparent the
defendant wilfully discharged his gun for which he exhibited no license, by the way without taking the precautions demanded by the circumstance that the district was populated, and the likehood that his bullet
would glance over the hard pavement of the Manila thoroughfare.
A landowner surprise a youngster in the act of stealing some fruit in his orchard. To scare the intruder he fired a shotgun aiming at the foliage of a cherry tree. The shot scattered and a pellet injured the boy, who was
standing under the tree. That was reckless negligence, the Spanish Supreme Court decided. (Sent. June 20, 1900, Viada, 5th ed., Vol. 7, p. 14.)

The penalty imposed on the appellant is 2 months and 1 day to 1 year and 1 day, indemnity of P2,000 with subsidiary imprisonment, and costs. It is within the limits authorized by law. (Article 365, Rev. Penal Code, and
Act No. 4103.) (Act No. 284.)
Wherefore, the appealed judgment is affirmed, with costs against appellant.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. L-24781 May 29, 1970

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CARLOS FERNANDO alias COMMANDER "BOB," defendant-appellant.
Maximo V. Cuesta, J and Cipriano Manansala for defendant appellant.
Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Antonio A. Torres and Solicitor Teodulo R. Dino for plaintiff-appellee.

TEEHANKEE, J.:
Appeal from the sentence of reclusion perpetua imposed by the trial court on the accused-appellant for the crime of murder.
The accused was charged with the crime of murder before the Court of First Instance of Tarlac under the following information:
That on or about March 30, 1961, at nighttime, in the Municipality of Bamban, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, Carlos
Fernando alias "Bob," together with Francisco Ronquillo alias Commander "Manly," (Deceased) and Mario Salonga (at large), confederating, conspiring and helping one another, with malice
aforethought and the deliberate intent to take the life of Bienvenido Laxamana, did then and there willfully, unlawfully, feloniously and treacherously attack the latter with pistols caliber 45, thereby
inflicting upon the said Bienvenido Laxamana, mortal wounds on different parts of his body which directly caused his instantaneous death.
After trial, the trial court found the accused guilty as charged, on the strength of his two confessions, consisting of his 4-page written sworn statement taken on June 16, 1961 by Capt. Pedro Acierto of the First
Philippine Constabulary Zone, 1 soon after his capture on June 12, 1961 in an encounter in Barrio Balibago between Dau and Mabalacat, Pampanga, between PC troops and Huks led by HMB Commander Francisco
Ronquillo alias Commander Manly who was killed, and his 3-page testimony at the preliminary examination of the criminal complaint for murder conducted on July 19, 1961 by Judge Pompeyo S. Tiglao of the
Municipal Court of Bamban, Tarlac, 2 as well as of his own testimony at the hearing of March 11, 1965 as the lone defense witness on his own behalf, at which he, freely admitted his participation in the murder. 3

The trial court found the facts as follows: "(O) n the evening of March 30, 1961, at about 7:00 o'clock, Bienvenido Laxamana was inside a store of one Honoria Atienza next to his house on the same side of the street in
the poblacion of Bamban, Tarlac. He was then, sitting and eating peanuts. While in that position, Mario Salonga alias 'Manding,' who is still at large, and the accused Carlos Fernando alias 'Bob,' without any warning,
suddenly and unexpectedly fired shots with their .45 caliber pistols at Laxamana. The duo then departed, leaving their victim sprawled outside the store.
Salonga and Fernando were members of the Hukbalahap Organization. Before going to Bamban, Tarlac, on the evening of the incident, they were somewhere within the jurisdiction of Angeles City
where they received instruction from one of their commanders, Francisco Ronquillo alias Commander Manly,' to liquidate Laxamana. The motive was that the latter, while an officer of the civilian
guards, had ordered the killing of a relative of Commander "Manly" and the beating up of the father of Salonga. Fernando and Salonga went to Bamban from Angeles City by walking all along between
sugar cane field. After the killing of Laxamana, they also decamped together the same route.
The victim, Bienvenido Laxamana, was married to Remedios L. Laxamana. Two daughters were born out of their wedlock, the elder of whom is 13 years old. Before his death, Laxamana was a member
of the Central Azucareras de Tarlac Planters' Association of that province. When his brother-in-law, the late Sinforoso Lomboy, was the Municipal Mayor of Bamban sometime in 1950, he became a
member of the civilian guards or the Civilian Commando Unit (CCU) in that town with the rank of captain.
That evening of March 30, 1961, Mrs. Laxamana came from the Catholic church of Bamban with her elder daughter, Bernadette. While on her way home and when the distance from her house was
about thirty meters, she heard the firing of shots. She took cover in one stores; and after the firing had ceased, she went out and hurriedly proceeded to her home. In front of the store of Honoria
Atienza she saw her husband sprawled on the ground full of blood. She was not able to come close to him because somebody held her back. A jeep arrived where her husband was placed but not long
thereafter he was brought back already dead.
Dr. Honorato Navarro, municipal health officer of Bamban Tarlac, made the autopsy of the victim's cadaver or the same night of the murder, and per his necropsy report, 4 the victim cited of "hemorrhage, massive,
secondary to GUNSHOT WOUNDS, multiple (23) in neck, chest, and back, lumbar region, and upper and lower extremities," many of which were mortal wounds hitting vital organs in the neck such as the carotid artery
and the vagus nerve, both lungs and the liver, kidneys and intestines in the lumber region.
The trial court rejected the accused's testimony at the trial that he did not fire any shot at the victim but merely stood guard outside the store, and that his role, after Salonga had ceased firing at the victim was to fire
three shots in the air as a signal for them to depart, thus: "(T)he Court entertains a very serious doubt on the veracity of the above-mentioned statement of the accused because the same is contrary to what he stated
when he was first investigated by the P.C. after his apprehension. Portion of his written statement (Exh. F-1) reads as follows:
12. T Natupad ba naman ninyo ang iniutos ni Comdr. FRANCISCO RONQUILLO na patayin si BIENVENIDO LAXAMANA?
S Opo napatay namin sa pamamagitan ng pagbaril sa kanya nuong gabing iyon ng ika-30 ng Marzo, 1961.
13. T Anong clase ng baril ang inyong ginamit sa pagpatay kay LAXAMANA?
S Pareho po kaming gumamit ng Pistola calibre 45. Si MARIO SALONGA alias MANDING na aking kasama ay nakapagpaputok ng humigit kumulang sa labing-dalawa at ako
naman ay tatlong putok.
14. T Sinabi mong natupad ninyo ang utos ni Comdr. FRANCISCO RONQUILLO alias Commander MANLY, na patayin si Bienvenido Laxamana, natatandaan mo ba kung saan
lugar ninyo binaril at pinatay ang taong naturan?
S Duon po sa loob ng isang tindahan sa Poblacion, Bamban, Tarlac, na ang may-ari sa naturang tindahan ay hindi ko kilala.

The answer of the accused to the above-quoted question No. 13 to the effect that he and Salonga both used .45 caliber pistols in killing Laxamana, with Salonga firing twelve shots and he, three shots,
conveys no other idea, than that the three shots he fired were directed at the victim and not upwards into the air. The Court is inclined to believe that this statement is the one in keeping with the truth,
taking into consideration the determination of the accused to participate in the killing of Laxamana and the number of gunshot wounds found on the latter's body.
At any rate, the trial court further held, there was no doubt as to the existence of conspiracy between the accused and Salonga, as the accused actively participated in the criminal design of Salonga and acted in concert
with him, granting arguendo that the accused merely stood guard for Salonga and that Salonga alone inflicted the 23 gunshot wounds on the victim.
The trial court likewise rejected the accused's contention that he should be punished only for the crime of rebellion as the murder was in pursuance of the Huks rebellion movement, since the motive for the killing of the
victim was personal, to avenge the alleged killing of a relative of Commander Manly and the alleged maltreatment of the father of Salonga, supposedly ordered by the victim. The trial court further pointed out that while
the victim had been an officer of the civilian guards in Bamban, that was more than ten years ago in 1950, and the victim was an ordinary civilian when he was shot in cold blood.
The trial court found that "(F)rom the testimony of the accused himself on the witness stand, it clearly appears that the firing of the shots which snuffed out the life of Laxamana was sudden and unexpected, without any
risk to the assailant which might have proceeded from the defense of the victim. The crime, therefore, committed by the accused is murder, qualified by treachery," and therefore rendered the following verdict:
IN VIEW OF ALL THE FOREGOING, the Court finds the accused CARLOS FERNANDO alias COMMANDER "BOB" guilty beyond reasonable doubt of the crime of MURDER defined and penalized
under Article 248 of the Revised Penal Code, and in view of the absence of any mitigating or aggravating circumstance attending the commission of the crime, hereby sentences him to suffer the
penalty of reclusion perpetua with the accessory penalties prescribed by law, to indemnify the heirs of Bienvenido Laxamana in the sum of P6,000.00, without subsidiary imprisonment in case of
insolvency in view of the nature of the principal penalty imposed, and to pay the costs.
In this appeal, the accused-appellant assigns as error the trial court's rejection of his contentions that his participation in the murder was in furtherance of the Huk movement and that he should have been held by
virtue of his Huk membership to have acted under the compulsion of an irresistible force and/or under the impulse of an uncontrollable fear of an equal or greater injury. He further assigns as error the trial court's
denial of his motion to dismiss the case filed on November 4, 1963, after the prosecution had rested its case, on the ground of double jeopardy, on the ground of his previous conviction on August 31, 1961 by the
Pampanga Court in another case 5of the crime of simple rebellion, on his entering of plea of guilty.
We find the trial court's rulings to be in accordance with the evidence and the law.
1. Appellant's contention that because he and Salonga as members of the Hukbalahap organization had received from Commander Manly the order to liquidate the victim, the murder committed by them should have
been held in furtherance of and absorbed by the crime of rebellion, and that they should have been instead charged for rebellion, is untenable. The record is bereft of any evidence that the murder was committed as a
necessary means to commit rebellion or in furtherance thereof. The victim had no established connection with the government at the time. 6 As emphasized in People vs. Paz 7 besides, "(T)hat the killing was in
pursuance of the Huk rebellion is a matter of mitigation or defense that the accused has the burden of proving clearly and satisfactorily." Far from discharging the burden, appellant himself revealed in his unrepudiated
written confessions that the killing was inspired by personal motives of avenging the alleged killing of a relative of Commander Manly and the alleged maltreatment of Salonga's father, as ordered by the victim
Laxamana, and cannot be deemed absorbed by the rebellion and should be separately prosecuted. 8 As held inHernandez, supra, 9 the mere fact that the accused is a member of the Hukbalahap organization "is no
reason why all his acts and misdeeds should be considered in furtherance of or absorbed by rebellion." Appellant's contention that Commander Manly's personal motive did not apply to him and that he merely obeyed
as "a mere 'soldier' of the HMB is of no avail either in the face of his awareness of an acquiescence to the personal motivation and the void of any evidence that the murder was necessary to the rebellion or in furtherance
thereof.
Accused next asks the Court to "take judicial notice of the fact that the Hukbalahap or HMB organization deal with its members who disobey or refuse to carry out its orders in the most severe manner. A member who
disobeys or refuses to carry out its order may be liquidated or given another form of severe punishment." On this tenuous premise, he claims that by virtue of his Huk membership, his participation in the murder of the
victim should have been deemed to be an act under the compulsion of an irresistible force and/or under the impulse of an uncontrollable fear of an equal or greater injury as to exempt, him from criminal liability. 10
Justice Moreland long set the norm for the application of these exempting circumstances: "...before a force can be considered to be an irresistible one, it must produce, such an effect upon the individual that, in spite of
all resistance, it reduces him to a mere instrument and, as such, incapable of committing a crime. It must be such that, in spite of the resistance of the person on whom it operates, it compels his members to act and his

mind to obey. He must act not only without will but against his will. Such a force can never consist in anything which springs primarily from the man himself; it must be a force which act upon him from the outside
and by means of a third person. In order that one may take advantage of subdivision 10 of article 8 and allege with success that he acted under the impulse of an uncontrollable fear of an equal or greater injury, it must
appear that the threat that which caused the uncontrollable fear related to a crime of such gravity and so imminent that it must safely be said that the ordinary run of men would have been governed by it. And the
evil threatened must be greater than, or at least equal to, that which he is compelled to cause." 11
2. Accused dismally failed to show that he acted "not only without will but against will." On the contrary, he testified that he joined the Hukbalahap organization since, December 28, 1950 "because it is a good
organization." 12 The record is devoid even of any claim of the accused that any threats were made upon him or that he acted under uncontrollable fear. He was not under any physical or moral compulsion when
according to his own version at the trial, he freely stood on guard outside the store while his companion Salonga went inside and shot the victim. At his preliminary examination before Judge Tiglao, he further testified
that his role as guard was to fight off any persons who might come to the aid of the victim Laxamana. 13 And without any physical or moral compulsion, after the killing, he and Salonga, according to his own testimony
at the same preliminary examination, returned to report the same to Commander Manly at Barrio Kutid, Angeles, Pampanga and accept his congratulations and thanks. 14
3. The last principal error assigned by accused that the trial court should have dismissed the present case by virtue of his previous conviction for rebellion on August 31, 1961 is without merit.
The accused, even before his apprehension in the encounter with the PC troops on June 12, 1961, already faced the criminal charge of rebellion in an information filed on October 17, 1960 against him and several others
before the Pampanga Court of First Instance. 15 After his apprehension, he entered a plea of guilty to the charge and was sentenced to six years, eight months and one day of prision mayor per the decision handed
down by the Pampanga court on August 31, 1961.
The murder of Laxamana for which the accused stands charged in the present case was committed on March 30, 1961. The criminal complaint therefor was filed with the municipal court of Bamban, Tarlac on July 19,
1961 and after the records were forwarded on September 14, 1962 to the trial court, the murder information was filed on November 29, 1962.
There clearly can be no double jeopardy, because the murder of Laxamana on March 30, 1961 could not have been possibly included as one of the specific counts in the information for rebellion filed against the accused
on October 17, 1960, as the murder had not yet been committed then. Furthermore, the acts constituting the crime of rebellion were committed in the province of Pampanga where the accused was charged therefor,
while the murder of Laxamana for which the accused is charged in the present case was committed in the province of Tarlac over which the Pampanga court had no jurisdiction. 16 Finally, as the murder here had
been shown to have been committed furtherance of the rebellion but for personal vengeance, it could not be deemed absorbed by the crime of rebellion but had to be separately charged and punished. 17
In resume, even going upon the accused's own version at the trial that he merely stood guard while his companion Salonga went inside the store and killed the victim, and that thereafter he fired three shots in the air as
a signal for them to part and return to their camp, the trial court correctly held this to constitute more than adequate. Proof of his participation as conspirator and of his responsibility as co-principal in the murder. 18 In
the absence of evidence that, the killing, qualified by treachery, was attended by any aggravating or mitigating circumstances, the trial court correctly imposed the penalty of reclusion perpetua. The indemnity to the
heirs of the victim is increased to P12,000.00. 19
WHEREFORE, the judgment appealed from is hereby affirmed, with the modification that the indemnity to the heirs of the deceased Bienvenido Laxamana is increased to P12,000.00. With costs against the accusedappellant.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-13025

December 29, 1959

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
TEODULO ROGSDO, ET AL., defendants-appellants.
Solicitor General Edilberto Barot and Solicitor Jorge R. Coquia for appellee.
Alfredo G. Fernando for appellant Teodoro Rogado.
Angel C. Facundo for the appellants.

BAUTISTA ANGELO, J.:

On September 25, 1956, Teodulo Togado, alias Commander Sulit, Isaac Orenia, alias Commander Lawin, Domingo Golfo, alias Eser, Cresencio Arsenal, alias Sako, Pedro Merin, alias Abling, Francisco
Racoma, aliasManeng, Pio Mercurio, alias Abling, Francisco Racoma, alias Rolando, Nemesio Arsolacia, alias Noli, and Conrado Devesa, alias Donato, were charged with murder before the Court of First Instance of
Laguna for killing of one Salvador Areza. They all pleaded not guilty.
During the trial and after several witnesses for the prosecution have testified, Francisco Racoma and Conrado Devesa were excluded from the information upon motion of the fiscal to be utilized as government
witnesses. Later, upon motion also of the fiscal, the charge was dismissed for insufficiency of evidence with respect to accused Nemesio Arsolacia, Maximo Cerebo and Pedro Merin. Then counsel for the remaining
accused filed a motion to dismiss on the ground that the killing of the deceased was accomplished by them in furtherance of the huk movement, but the motion was denied.
Upon resumption of the trial, counsel for Teodulo Rogado and Pio Mercurio moved for separate trial on the ground that their defense is incompatible with the defense of their co-accused, which motion was granted by
the trial court. And when both parties have submitted the case for decision, the trial court found the accused Rogado, Orenia, Golfeo and Arsenal guilty as principals of the crime charged and sentenced them to suffer
the supreme penalty of death, while it found Pio Mercurio guilty merely as accomplice and sentenced him to the penalty of from 8 years and 21 days of prision mayor as minimum to 14 years 19 months and 21 days
of reclusion temporal as maximum, with the corresponding accessory penalties provided for by law. Each of the four principals was also ordered to indemnify the heirs of the deceased in the sum of P6,000.00 and the
accomplice in the amount of P2,000.00, and all to pay their proportionate share of the costs.
Pio Mercurio having failed to file his brief, this case is before this Court only for the review of the decision rendered against the accused Rogado, Orenia, Golfeo and Arsenal which imposes upon them the penalty of
death.
On July 12, 1956, Salvador Areza, a farmer residing in Lilio, Laguna, left his house carrying with him a bolo on lots scabbard to gather firewood in his farm in barrio Bubukal. When he failed to return home that day, his
wife Lydia Nudal went out to search for him. She was accompanied by some armed men, the mayor, and a sanitary health officer, and after a brief search, they found the decapitated body of her husband in an
uninhabited place in Bubukal about half kilometer away from the road. The gruesome find revealed that Areza's head was totally severed from his body with his hands tied together. The health officer, Dr. Dominador L.
Gomez, found the body to be in state of decomposition, which led him to conclude that the deceased must have died three to five days prior to his discovery. Areza's bolo and his scabbard were also found near his body.

It appears that on July 12, 1956, Teodulo Rogado, alias Commander Sulit, Isaac Orenia, alias Commander Lawin, Domingo Golfeo, alias Eser Cresencio Arsenal, alias Sako, Pedro Merin, alias Nestor, Maximo
Cerebo, aliasManeng, Pio Mercurio, alias Abling, Nemesio Arsolacia, alias Noli, Francisco Racoma, alias Rolando, and Conrado Devesa, alias Donato, were on their way from barrio Sta. Lucia, Nagcarlan, to the
municipality of Lilio, Laguna. They lost their way, and as they were looking for someone from whom they should get information as to their whereabouts they met Salvador Areza whom Racoma and Deveza approached.
Upon their inquiry, Areza informed them that they were in barrio Bubukal, municipality of Lilio; that there was an army camp stationed nearby; and that the soldiers occasionally go on patrol to the barrios.
The information was reported to commander Sulit (Rogado) who in turn ordered that Areza be brought to him. After talking with him, Rogado asked Areza to lead the way for them, but Areza refused saying that he had
much work to do, and besides he had a carabao with him. after a brief talk with Orenia, alias Commander Lawin, rogado told Racoma that they were taking along Areza and that if he should refuse, he should be tied,
which instruction Racoma relayed to his two companions, Merin and arsenal, telling them to be prepared in case Areza would give them a fight. Thereupon, Racoma approached Areza and asked if he could barrow from
him his bolo. Areza obliged. When Areza refused to go with them, Pio Mercurio dragged him along, and as he refused, Golfeo struck him with the butt of his gun.
After walking a short distance, Mercurio tied Areza's hands behind him. Areza protested telling Mercurio that he had not done anything wrong, whereupon Golfeo gave him a fist blow on his stomach. After walking
some distance, a command to stop was heard and so they stopped. Racoma then approached Rogado and told him that they should release Areza at night but rogado told him that Areza should be killed and when
Racoma returned to the group he found that Areza was being assaulted by Orenia and Golfeo. At this moment, Racoma heard Rogado saying, in the vernacular, "Kill him now so we can proceed." Areza was then taken to
a secluded place quite far from the road, which was thick forest about 20 or 30 meters away from the group, and there Golfeo ordered Areza to lie down. With Areza's bolo and ignoring the plea for mercy of their victim,
Golfeo gave him a blow on the neck as he lay face down and with his hands still tied behind. With the same bolo, Arsenal also gave the victim another blow on the neck which completely severed the head from the body.
On September 20, 1956, Pedro Merin, a member of the group who surrendered to the authorities, made a sworn statement before the Justice of the Peace of Nagcarlan, Laguna, stating therein that Salvador Areza was
killed by Ezer and Sako upon order of Commander Sulit. Domingo Golfeo also made a sworn statement before the justice of the Peace of Sta. Cruz, Laguna, admitting his participation in the killing of Areza upon order
of Commander Sulit. On September 21, 1956, Cresencio Arsenal also made a written statement before the Mayor of Sta. Cruz, Laguna, admitting that he was one of those who killed Areza. Both Domingo Golfeo and
Cresencio Arsenal, while admitting their participation in the killing of the deceased, claimed in exculpation that they acted under the pressure of an irresistible force in that they merely obeyed the order of their
Commander, Rogado aliasCommander Sulit, who would have killed them if they disobeyed his order. The other appellants merely contended that the killing was done in furtherance of the huk rebellion.lawphi1.net
Their is no doubt that the unfortunate victim met his death in the hands of the accused who decided to take his life because of his stubborn refusal to obey their command that he lead their way to the place they wanted
to go in order that they may not be exposed and caught by the agents of the law who were stationed in a nearby municipality. The only question to be determined is whether the defense they have set up is sufficient to
exonerate them from liability.
As regard accused Domingo Golfeo, The evidence is clear that it was he who first struck Areza with the butt of his gun hitting him on the side of his body, then gave him a fist blow on his stomach, and after he had been
taken to a secluded place, it was he who ordered Areza to lie down in the fashion adopted by the Kempetai during the gloomy days of Japanese occupation and in that position gave him a blow on the back of the neck
which almost severed his head from the body. His participation in the killing of Areza cannot therefore be doubted. His only defense is that he did so in obedience to the order of his commander, and because he acted
under the influence of uncontrollable fear, he should be exempt from criminal responsibility.
The defense of Golfeo is clearly untenable not only because of the well-settled rule that obedience to an order of a superior will only justify an act which otherwise would be criminal when the order is for a lawful
purpose, but also because the circumstances under which Golfeo participated in the torture and liquidation of Areza cannot in any way justify his claim that he acted under an uncontrollable fear of being punished by
his superiors if he disobeyed their order. In the first place, at the time of the killing, Golfeo was armed with automatic carbine such that he could have protected himself from any retaliation on the part of his superiors if
they should threaten to punish him if he disobeyed their order to kill Areza. In the second place, the evidence shows that Areza was brought to a secluded place quite far from that where his superiors were at the time
and in such a predicament, he and companion Arsenal could have escaped with Areza to void the ire of their superiors. The fact that he carried out their order although his superiors were at some distance from him and
that without pity and compunction he struck his victim in a Kempetai fashion show that he acted on the matter not involuntarily or under the pressure of fear of force, as he claims, but out of his own free will and with
the desire to collaborate with the criminal design of his superiors. In the circumstances, we find that the trial court did not err in finding him responsible for the death of Areza as co-principal by direct participation.
The same situation obtained with regard to Cresencio Arsenal. It appears that he was one of those ordered by Rogado to kill Areza and in obedience to such order he had a direct participation in the killing. It was he and
Golfeo who brought Areza to a secluded place and once there he helped Golfeo in killing him with the same bolo which was taken from the victim himself. Thus, it appears that after Golfeo had given the first blow on the
back of the neck of Areza as he lay face down on the ground, Arsenal took the bolo himself and gave the fatal blow which completely severed the head of Areza from his body. There is therefore no doubt that Arsenal

directly cooperated with Golfeo in carrying out the concerted plan of killing Areza because of the hostile attitude he adopted in denying them the help they demanded from him. Since Arsenal to those existing in the case
of Golfeo, his claim of obedience and fear of retaliation if he disobeyed his superiors' order cannot also be entertained.
The other defense of appellants refers to their theory that they killed Areza not for personal motive but in furtherance of the huk rebellion and so, if any liability they have, it is only for rebellion and for murder as they
are charged. And having already been prosecuted and convicted of the crime of rebellion in Criminal Case No. SP-137 of the Court of First Instance of Laguna, their prosecution in the instant case would constitute
double jeopardy.
to begin with, it should be stated that while this Court ruled in People vs. Hernandez, 99 Phil., 515, 52 Off. Gaz., No. 11, p. 5506, that there is no complex crime of rebellion with murder because the latter offense is
absorbed by the former, however, a distinction was made in the case of People vs. Geronimo, 100 Phil., 90, 53, Off. Gaz., No. 1, p. 68, where we held that if the killing is inspired by personal motive such killing is not
absorbed by the rebellion but may be the subject of separate prosecution. In the second place, we find that the acts with which appellants now charged do not appear included in the information for rebellion in Criminal
Case No. SP-137, for in the case they were merely accused of having risen and taken up arms against the Philippine constabulary, Armed Forces of the Philippines, police forces and other military detachments of the
government, without specifying the particular acts committed against private persons or civilians which may be said to have been undertaken in furtherance of the huk rebellion. It is not, therefore, correct to say, as
appellants now claim, that the act in question is already included or absorbed in the rebellion charge filed against them in said criminal case.
On the other hand, the pretense that the killing of Areza by appellants was done in furtherance of the huk rebellion is preposterous considering the fact that Areza was a mere farmer who had no connection whatsoever
with any law-enforcement agency of the government. The pertinent question that arises is: Why was he taken killed and brutally beheaded by appellant?
The answer is well given in the following interesting observation of the trial court:
According to the testimony of the prosecution witness, Francisco Racoma, Salvador Areza was maltreated, tied and killed because the latter refused to lead and guide the group of Rogado to the road when he
was asked by the latter to do so, Rogado's men were lost in the mountains of Lilio and they needed somebody to help them find the way out of the place. They came upon Areza working in his farm. Rogado
asked him to lead the way and Areza refused saying that he had much work to do and he could not leave his carabao. Angered and irked by such stubborn refusal, Rogado after conferring with his co-defendant
Orenia gave the order to take Areza along and to kill him. The killing of Areza was done solely to satisfy the anger of the leader, rogado, who being used to the blind obedience of his men could not tolerate the
refusal of Areza to carry out his wishes and desires. The rebellious movement of the group had nothing to gain by Atienza's death. On the contrary, Rogado and his group needed Areza alive in order that they
could utilize him as their guide while they were in the mountains of Lilio. There is no question that they could have easily at the point of their thompsons, carbines and garands, forced Areza to lead the way.
But they did not do so, because at that time Rogado was not so much interested in finding the path to the road; what concerned him most was to teach a lesson and a hard one at that, to Salvador Areza for
having the timerity of saying "no" to his wish and request. Surely, to kill a person under those circumstances is obviously outside of the political intent of the Hukbalahap movement. The huks rise up in arms
because they mistakenly believe that by doing so they can have desired changes in the political, social, and economic life of this country. But to accomplish such a purpose, the death of innocent civilians like
Salvador Areza is unquestionably unnecessary. When the killing is done solely for the purpose of answering the lust to kill or of satisfying angered feelings, thwarted desires of leaders and followers of the
Hukbalahap movement, such a killing must receive its due punishment at the hands of our courts which are called upon to do justice not only to the living but just as well to the dead.
An attempt was made by appellants to show that Areza was killed because he threatened to inform the Army of their presence in the neighborhood where he met them. Such attempt, however, is ridiculous, for Areza,
being then alone and confronted with a group of armed men, could not have hurled such a threat without catering immediate death. As the trial court aptly observed: "This Court cannot believe that Areza would have
been such a fool to tell that band of armed Huks that he would give them away to the Army. It is reasonable to presume that any sane person would have seen the danger of making such statement under the
circumstances, for that would have been sure death."
The trial court found that the crime was committed with the qualifying circumstances of treachery, aggravated by abuse of superior strength and the fact that it happened in an uninhabited place, for which reason it
imposed upon appellants to supreme penalty of death. While some members of the Court agree to the existence of the above aggravating circumstances, others however doubt if they could be entertained in the case of
appellants who, as members of the Hukbalahap organization, rightly or wrongly, were of the belief that they were justified in doing what they had done because Areza committed something inimical to the purposes of
their organization. At any rate, the requisite number of votes for the application of the supreme penalty not having been obtained, the only alternative is to impose upon them the penalty of reclusion perpetua.
With this modification, we affirm the decision appealed from all other respects, with costs against appellants.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-6082

March 18, 1911

THE UNITED STATES, plaintiff-appellee,

vs.
ISIDRO VICENTILLO, defendant-appellant.
C.W. Ney for appellant.
Attorney-General Villamor for appellee.
CARSON, J.:
The defendant in this case was found guilty in the court below of the crime of "illegal and arbitrary detention" of the complaining witness for a period of three days, and sentenced to pay a fine of 625 pesetas, with
subsidiary imprisonment in case of insolvency, and to pay the costs of the trial.
We are of opinion that under all the circumstances of this case there can be no doubt of the lawful authority of the defendant, in the exercise of his functions as municipal president, to make arrest of the complaining
witness which resulted in his alleged unlawful detention. As we understand the evidence, the alleged offense with which the complaining witness in this case was charged was committed by him in the presence of the
municipal president, who must be held to have had all the usual powers of a police officer for the making of arrest without warrant, under the doctrine laid down in the case of U.S. vs. Fortaleza (12 Phil. Rep., 472).
The judgment of conviction of the court below must therefore be reversed, unless the evidence discloses that having made the arrest, the defendant arbitrarily and without legal authority, as it is alleged, cause the
complaining witness to be detained for a period of three days without having him brought before the proper judicial authority for the investigation and trial of the charge on which he was arrested. But so far as we can
gather from the extremely meagre record in this case the arrested man was in fact brought before a justice of the peace as soon as "practicable" after his arrest. True, three days were expended in doing, so, but it was
conclusively proven at the trial that at the time of the arrest neither the local justice of the peace nor his auxiliary were in the municipality, and to reach the justice of the peace of either of the two adjoining
municipalities, it was necessary to take a long journey by boat. The evidence discloses, moreover, that with all practicable dispatch, the prisoner was forwarded first to one and then to the other of the adjoining
municipalities for trial, the failure to secure trial on the first occasion being due to the fact that the written complaint, which was intrusted to the policeman in charge of the prisoner, was either lost or stolen. It does not
appear why the prisoner was not sent to the same municipality on both occasions, but in the absence of proof we must assume that in this respect the officers in charge were controlled by local conditions, changes in the
weather, or the like, which, as appears from the uncontradicted evidence of record, made the journey by boats safer and more commodious sometimes to one and sometimes to the other of the two adjoining
municipalities.
It may be that the defendant was not friendly to the arrested man, and that he was not sorry to see him exposed to considerable inconvenience and delay in the proceedings incident to his trial, but there is nothing in
this record upon which to base a finding that his defendant caused the arrest and the subsequent detention of the prisoner otherwise than in the due performance of his official duties; and there can be no doubt of his
lawfully authority in the premises. The trial judge lays great stress upon the trivial nature of the offense for which the arrest was made, but keeping in mind the fact that there was no judicial officer in the remote

community where the incident occurred at the time of the arrest, and no certainty of the early return of the absent justice of the peace, or his auxiliary, we are not prepared to hold, in the absence of all the evidence on
this point that in a particular case of a defiance of local authority by the willful violation of a local ordinance, it was not necessary, or at least expedient, to make an arrest and send the offender forthwith to the justice of
the peace of a neighboring municipality, if only to convince all would-be offenders that the forces of law and order were supreme, even in the absence of the local municipal judicial officers.
The judgment of the lower court convicting and sentencing the defendant must be reversed and he is hereby acquitted of the offense with which he is charged, with the costs in both instances de oficio. So ordered